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HomeMy WebLinkAboutCity Council - 06/05/2007 AGENDA CITY COUNCIL WORKSHOP & OPEN FORUM/OPEN PODIUM TUESDAY,JUNE 5, 2007 CITY CENTER 5:00—6:25 PM,HERITAGE ROOM II 6:30—7:00 PM, COUNCIL CHAMBER CITY COUNCIL: Mayor Phil Young, Council Members Brad Aho, Sherry Butcher, Jon Duckstad, and Kathy Nelson CITY STAFF: City Manager Scott Neal, Police Chief Rob Reynolds, Fire Chief George Esbensen, Public Works Director Eugene Dietz, Community Development Director Janet Jeremiah, Parks and Recreation Director Jay Lotthammer, Communications Manager Joyce Lorenz,Assistant to the City Manager Michael Barone, City Attorney Ric Rosow, and Recorder Lorene McWaters Heritage Room II I. CEMETERY TASK FORCE REPORT Council Chamber II. OPEN FORUM III. OPEN PODIUM IV. ADJOURNMENT 11 + a1'f -w•- i, f; .. �. a ,_ III+ . i. • • • ! Irk. g#, t • i i o ~ �6 c .. C• Ih 4 4 J • 1 A ,, a l l '' "'` ,ill *. c (' 4 g e ... k . a . . ......t. , [. . , . v„..,ki..., ,.. . ,7. \ . , _ .. ...... . , Ill ...,. , ,. . , ...t.. ,4,..,.. . . '.1.r, i\ir y„ . :....'...,.":".Y4.4'..:12,..., •, - .' . . ..' .' iiiis; ,. i ,, : „./\. :.... -. :.,,,, • . , ., , EiTiEtlh ,.. . ,. _of e. EVEN PRAINIEil . :„....._ , `, _AT ii, .„ . .,....,.,.. ...,, , ,,,,,, .. .. . .0:,„...1.,:,....,,,.:,, ,,,,, . , . ,,,, ,,,,.‘. ,..,,./. . .1 �n _ �, ti ' `.iv//,/, r . . \% r.Ja. �, i /\�. •4.7‘ a1 dal/ �.^ nVn w ' i4,40,►'''e "' . %J \ ..4a', /VA/V it , ,. Pleasant Hill Cemetery Task Force Report June 2007 Pleasant Hill Cemetery Task Force Report June 2007 Page 1 of 11 Pleasant Hill Cemetery Task Force Introduction The City of Eden Prairie was given the title to Pleasant Hill Cemetery in 1986. This cemetery was conveyed to the City of Eden Prairie by the private, non-profit Pleasant Hill Cemetery Association, which had owned and managed it since the turn of the century. Since 1986, the City has managed the cemetery using a set of rules and regulations and City Council fulfilling the role as the cemetery board. In recent years there have been several questions related to the size of grave markers permitted in the cemetery, as well as other minor questions regarding various operational protocols. In February of 2004, the City Council conducted a workshop to discuss the various options regarding a petition for a change in the double monument marker size. As a result of that workshop, City Council decided that perhaps the Rules and Regulations, as well as the management and operation of the cemetery could use a review since it had been nearly twenty years since the City took over ownership of that cemetery. In December of 2004, City Manager, Scott Neal recommended that the City Council appoint a Cemetery Task Force to study issues involved in the City's management of Pleasant Hill Cemetery. This proposal was met with full support of the City Council and a Charter Statement was drafted to give direction to the proposed Cemetery Task Force members. The Charter Statement for the Cemetery Task Force is as follows: Charter Statement The purpose of Task Force is to review and make recommendations to the City Council covering three areas of Cemetery Management: 1. Review the current rules and regulations used by the City to manage the operations of the cemetery. The Task Force should determine if the City's rules are necessary and reasonable for operation of the cemetery. 2. Review the current supply of lots; demand for lots; and the City's financial responsibilities for the cemetery. 3. Review the general aesthetics of the cemetery and recommend improvements to the grounds of the cemetery, if necessary, for inclusion in the City's 2006-2010 capital improvement plan. It was recommended that the Task Force be staffed by Stuart Fox, Parks and Natural Resources Manager, and it was suggested that a seven member Task Force be convened as soon as possible. Staff was asked to solicit members representing the local funeral homes, Eden Prairie residents that own lots in the cemetery, Eden Prairie residents who do not own lots in the cemetery, and one representative of the Eden Prairie Cemetery Board of Trustees. In addition, City Council suggested that a member of the Historical Preservation Commission be added to the Task Force to cover any concerns regarding the historical preservation or nature of the cemetery. Pleasant Hill Cemetery Task Force Report June 2007 Page 2 of 11 Staff began to solicit members for the Task Force, this involved sending letters to surrounding neighbors, an article in the Eden Prairie News and Sun Current, soliciting individuals who may be interested in serving on the Task Force and mailings to individuals who had recently purchased cemetery lots. As a result of that, six individuals did come forward and volunteered to serve on the Cemetery Task Force. The Cemetery Task Force members included: Robert Amell—member of the Historical Preservation Commission Gerry Beckmann—Eden Prairie resident Pat Bell—Eden Prairie resident living adjacent to the cemetery Wally Gelecinskyi—local funeral home representative Mike Rogers—representative from Eden Prairie Cemetery Board Lee Wenzel—lot owner at Pleasant Hill Cemetery The Task Force began meeting in June of 2005, and met monthly through January 2006. During the meetings, staff provided background information to the members including copies of the rules and regulations, as well as other background materials related to the cemetery. Vice Chair, Beckmann invited guest speaker Helen Anderson to share information related to the history of Eden Prairie, as well as history of Pleasant Hill Cemetery. Mrs. Anderson shared this information at the same meeting that the Task Force reviewed the document entitled"City of Eden Prairie Heritage Preservation Site Nomination—Pleasant Hill Cemetery". A copy of this document is attached to this report. Mrs. Anderson stated that originally there were no cemeteries in Eden Prairie and it appears early burials of residents took place in the city of Bloomington. In 1885, the Pleasant Hill Cemetery Association was formed and the cemetery was comprised of 96 lots, each lot having eight graves. The cost of a lot was $10 and the lot owners were responsible for the upkeep of their lot. The cemetery was fenced to keep grazing cattle from entering the cemetery grounds. Mrs. Anderson went on to further describe the history of the cemetery and the expansion of Pleasant Hill from original one acre site to a current size of 2.2 acres with the additional land acquisition in the early 1970's. Description of Pleasant Hill Cemetery—Current Statistics The following is a summary of the breakdown of graves and burials within Pleasant Hill Cemetery as of February 2005. Section I • Total graves—748 • Total burials—502 • Graves remaining to be sold—32 Section II • Total graves—71 • Total burials— 15 • Graves remaining to be sold—38 Section III Pleasant Hill Cemetery Task Force Report June 2007 Page 3 of 11 • Total graves—571 • Total burials— 147 • Graves to be sold—408 Total Grave Summary • Total graves at Pleasant Hill Cemetery— 1,390 • Total burials—664 • Graves remaining to be sold—478 Current Operation of Cemetery 2006 Expenditures Administration $1,300 Contract Services 5,800 Miscellaneous 100 $7,200 2006 Revenue Sale of Graves (21) $8,600 Task Force Recommendations—Current Cemetery Operations A considerable amount of time was spent by the Task Force looking at the Cemetery Rules and Regulations and then making recommendations to standardize the language, as well as adding some missing pieces of information to the rules. Each of the Task Force members brought a variety of information to the meetings regarding other cemetery operations. The rules and regulations from several other surrounding cemeteries were also used as a comparison when recommending the language changes within the cemetery rules and regulations. Attached to this report is the draft of the rules and regulations that are being recommended by the Cemetery Task Force. In that copy, information that has been added to the rules and regulations is shown in bold, information that is to be deleted is shown by a cross out or strike through. In looking at the rules and regulations, the Task Force made two changes in the language that are reflected throughout the body of the document. These are as follows: • "Lot"now is changed to "grave"throughout the document. • "Ashes"has been changed to "cremated remains"throughout the document. The recommended changes to the rules and regulations are covered by section description as follows: Interments - Section 1 Pleasant Hill Cemetery Task Force Report June 2007 Page 4 of 11 Regarding interments in the cemetery, "lots"were changed to "graves" and"funeral" services to "interment". The Task Force recommended a new Section 1.4 which deals with cremated remains and that they must be placed in a permanent urn or concrete burial receptacle. The Task Force recommended adding by a unanimous vote to prohibit the scattering of cremated remains within the grounds of the cemetery. Section 1.9 has been removed. This section stated that interment or burials are not permitted on Sunday or any legal holiday. Due to the change in the various religious affiliations that are currently within the Twin Cities area, this non-Sunday burial clause has been removed from almost all other cemetery rules and regulations that were studied by the Task Force. Delay of Interment— Section 2 This section remains in its original form. Disinterments— Section 3 Some very minor language changes and some clarifying language was done in this particular section. Most of it has to do with the language change from lot to grave; however, a clarification on disinterment needing to be scheduled by the City rather than a one month notice was a change that the Task Force recommends. Conditions of Grave Purchases—Section 4 Within this section, all of the notations of lot have been changed to grave or graves. That is the only language recommendations for this section. Purchase of Graves—Section 5 Notations formally referring to as "lots"have been changed to "grave" or"graves" in this section. Transfer of Lots—Section 6 The reference to "lots"within the original rules and regulations has now been changed to "grave" or"graves" in this version of the rules and regulations. Descent of Graves— Section 7 The reference to "lots"within the original rules and regulations has now been changed to "grave" or"graves" in this version of the rules and regulations. Markers and Upright Monuments— Section 8 Pleasant Hill Cemetery Task Force Report June 2007 Page 5 of 11 This section of the rules and regulations has some of the most specific changes being recommended by the Task Force members. Beyond the normal changes from"lot"to "grave"the Task Force members recommended incorporating the language of upright monuments in this section of the rules and regulations. Currently uprights monuments are found in Sections I and II of the cemetery. Many of these upright monuments were family monuments marking a four or eight grave section of the cemetery. There are some additional individual upright monuments that mark graves. Many of these have been in place since the establishment of the cemetery. The details of the recommended changes are as follows: • Section 8.3 has been reworded to state that in Section III of the Cemetery, flat markers are to be the following sizes: single 12" x 24" x 4" and doubles 12" x 40" x 4". This is an increase in 10" for double flat marker in this section of the cemetery. Also included is an exception stating that upright markers are allowed in Sections I and II of the cemetery. These monuments must be of similar size and composition to the current monuments and they must be approved prior to installation. The justification for this exception is that the former rules and regulations did not permit any upright markers within the cemetery, even though Section I and II currently have upright monuments and the staff has been permitting upright monuments to be installed, keeping within the character of the older section of the cemetery. • Section 8.4 states that foundations not being required for flat or flush markers; however, an exception statement has been added to this section to require foundations for any upright monuments to ensure that they are installed with the proper foundation to keep them from tipping or settling unevenly. • Section 8.5 outlines the installation of cement skirts around markers; however, this has been changed to a more generic, "unadorned mowing approved material." This gives a little bit more latitude in the types of materials or types of treatment that are permitted around markers; however, it does specify that any work shall be approved prior to installation of a mowing border. • Section 8.6 has been reworded to specify that if a marker or monument is to be set by the City that the marker setting fee must be paid to the City in advance of that monument being placed by City staff. Permanent Care— Section 9 This section of the rules and regulations has only a few minor language changes pertaining to "lots"now being referred to as "graves". In Section 9.2 a clarifying statement was added to the general care of the cemetery that the City shall not be required to include maintenance, repair, or replacement of any grave marker or monument. The Task Force members felt that the addition of the words "be required to"helps clarify that the City is not responsible for the repair or replacement of any monuments or markers within the cemetery grounds. Flowers, Adornments and Landscaping Improvements— Section 10 Pleasant Hill Cemetery Task Force Report June 2007 Page 6 of 11 Within this section there are some significant changes proposed by the Task Force including that plants and flowers may be placed in pots on single permanent stand at grave sites. Currently, flowers are placed in a variety of manners and this also includes artificial or silk plants, which under the proposed Rules and Regulations would no longer be permitted. Any plants that are left at the grave site would be removed and discarded prior to the second mowing cycle at the cemetery. This means that flowers or floral sprays left at the grave at the time of burial would remain for at least one to two weeks depending on the mowing time cycle. Additional live or flowering potted plants beyond the single pot limit would be allowed on special holidays as outlined within the Rules and Regulations which are Christmas, Easter, Memorial Day, Birthdays or Anniversary. These special occasions will allow an additional potted plant to remain for five days at the grave site, after which they would be removed and discarded. In Section 10.5, the Task Force took a great time to discuss the situation with artificial flowers,plants or other adornments. The proposed revision is that any artificial plants, flowers or other adornments would be subject to immediate removal, except for the ninety days following interment. This would allow individuals who may not have markers or headstones ordered to acknowledge the burial location of their family member or relative. Cemetery Management— Section 11 No changes were made to this section of the Rules and Regulations. Hours— Section 12 No changes were made to this section of the Rules and Regulations. General Provisions— Section 13 In this section, "lots"were changed to "graves". The section 13.3 sub 6 was reworded to state that dogs and other family pets are permitted on the cemetery grounds with a six foot leash and would also include aid-assisting dogs on cemetery grounds. The prior Rules and Regulations did not permit dogs or family pets on the grounds; however, with the advent of aid-assisting dogs, as well as the condition that any dogs be on a six foot leash seemed to meet the spirit of having family pets visit the grave site, as long as they are accompanied by a family member. The Cemetery Task Force spent quite a bit of time discussing three additional items that they would like to see added to the Cemetery Rules and Regulations. Two proposed changes revolve around the grave markers and the third is a suggestion for implementing enforcement and penalties for violation of any of the Cemetery Rules and Regulations. Suggested Additions to the Rules and Regulations: Pleasant Hill Cemetery Task Force Report June 2007 Page 7 of 11 1. Require grave markers. Within Section 8, the Task Force is recommending that every grave must be marked with a permanent grave marker. The style of marker is the choice of the lot owner or relative; however if this is changed it would have to be clearly disclosed to everyone at the time they are purchasing a grave(s). 2. The Task Force is recommending that there be an allowance for upright markers in Section III of the cemetery. Currently the Rules and Regulations state that all markers in Section III must be flush-type markers; however, the Task Force feels that as long as proper steps are taken to allow markers that do not exceed 36" in height, that this will not represent a long term maintenance issue. Additionally with the recommended change in Section 9, Permanent Care, the City would not be required to maintain repair or replace any grave marker that gets damaged. Staff reviewed several markers in Section I and Section II and found that the average height was 36" high. The staff feels comfortable with this recommended change in grave markers. 3. The Task Force is recommending that the City Council forward a request to the city attorney for development of an enforcement clause within the Cemetery Rules and Regulations. If developed this is something that would have to be adopted in the city code to assist with enforcement of the Rules and Regulations related to the cemetery. The Task Force felt that this type of clause is lacking in the original Rules and Regulations. Currently if there is a violation or some other problem there is no clear defined way for rectifying or correcting that problem. Staff will defer to the city attorney's office for further recommendations on drafting of an enforcement clause along with the process and penalties associated with this section. General Task Force Recommendations The Task Force had several general recommendations for the City Council to consider. Some of the recommendations are immediate, short-term recommendations; others are long-range and involve quite a bit of research and planning. This report will first cover the short-term recommendations of the Task Force regarding the operation of Pleasant Hill Cemetery. Short Term Recommendations are as follows: Increase Grave Fees The first category that the Task Force recommended is an increase in the grave purchase fees for the cemetery. Since the fees for the purchase of graves have not increased since the City took over the operation of the cemetery over 20 years ago, they felt that a survey of surrounding public cemeteries should be done to assess whether or not the current fees for residents and non-residents are in line with the current rate being charged at other public cemeteries. Pleasant Hill Cemetery Task Force Report June 2007 Page 8 of 11 Status of the Perpetual Care Fund Task Force requested that city staff discuss the current budget expenditures and the Perpetual Care Fund balance. When this was disclosed to the members they have several recommendations regarding capital expenditures for upkeep of the cemetery. They feel that these expenditures are necessary to upgrade some of the current amenities at the cemetery and that the Perpetual Care Fund is sufficient to fund them. Their recommendations for improving the cemetery grounds are: • New perimeter fence—the Task Force recommends that the current chain link fence on the front side of the cemetery be replaced with a more representative steel or rod iron type fence material that would give it the ambiance of an older cemetery. In addition the side and rear perimeter fences are in need of an upgrade since several of areas of fencing are in excess of fifty years old and there are many spots where the fence is either down or in such poor condition that it needs to be replaced. • New entry sign with plants and flowers. Cemetery Task Force members believe that a new entry sign is necessary to better represent the old style character of this historic cemetery. One suggestion was to have an arch sign stating"Pleasant Hill Cemetery" above both of the gated entry points to the cemetery. Staff suggested that these designs could be worked out with consultant and those designs brought forward to the City Council for consideration. • Add or replace benches—currently the cemetery has a variety of benches and sitting apparatus within the cemetery. The Task Force is recommending that there be some type of uniform bench, as well as a landscaped area in and around the benches to provide a more pleasing and uniform appearance. • Plant additional trees. Task Force members recommend that additional trees should be planted in appropriate locations were graves were fully occupied and that there is adequate space for trees to be planted. • Trim trees and remove overgrown vegetation. Within the cemetery there are some trees that have grown through the fencing as well as up and over the perimeter fence. This vegetation needs to be either removed or trimmed in a manner to make the grounds more aesthetically pleasing. • Repair driveways and extend the driveway in Section III. Currently the driveways are in need of some minor repairs and should be seal coated to get rid of some of the cracks to increase the longevity of the current asphalt surface. The driveway in Section III only extends part way back within the cemetery and Task Force members recommends extending it to the most northerly lot line of that section. • Irrigate a portion of the cemetery. Task Force members suggested that perhaps irrigation could be added to certain portions of the cemetery to help with the tree and turf health. This recommendation would have to be further evaluated to see if Pleasant Hill Cemetery Task Force Report June 2007 Page 9 of 11 it is feasible since public water source is not readily available at the cemetery location. All of the above items are capital expenditures that could be funded out of the Perpetual Care Fund. The city does have the authority to expend monies from the Care Fund for the normal upkeep and maintenance of the cemetery, including fencing, driveways and parking surfaces, vegetation management, and other items considered as normal upkeep of the cemetery grounds. Before anything would be undertaken, staff suggests that a more detailed study be done to determine the costs of the Task Forces recommendations. In addition, staff will develop a priority list of maintenance projects for the cemetery to be brought back to the City Council at a future date. Expenditures from the Perpetual Care Fund are separate from the General Fund Budget and therefore are not subject to the same time frame as the associated with the approval of city budget. Long Term Recommendations are as follows: This section outlines ideas for long term or future consideration that would be incorporated within the Pleasant Hill Cemetery operational plan. Some of the ideas that are presented within this section are very simple and easy to implement and others will take long range strategic planning to determine their feasibility and costs associated with their implementation. The future considerations can be divided into two categories: one informational or communication recommendations, and the second physical improvements to the cemetery property. Communication Information The Task Force recommends and the city staff agree that an information program should be developed to better inform residents of the city about the cemetery and its operation. The City of Bloomington has an excellent brochure that shares the historical information highlights some of rules and regulations and the as well as costs to purchase of graves at their cemetery. In conjunction with brochure copy the same information could be posted on the City website so website visitors could easily find information about Pleasant Hill Cemetery and its operation. Another piece of communication or record keeping information that the Task Force is recommending to the City Council for consideration is to purchase a computer program to track cemetery information. This would include grave purchases as well as interment information. Eden Prairie Cemetery has recently switched to a computerized record program. This software makes it is easier keep track of the cemetery data and is also helpful when doing a record search when people ask whether or not a relative or friend is buried at the cemetery. In addition the Task Force was wondering whether or not putting this type of information(burial data) on the city website would lead to any data privacy concerns. This is something that should be addressed by the city attorney's office. Cemetery Property Expansion Considerations Pleasant Hill Cemetery Task Force Report June 2007 Page 10 of 11 The Task Force felt that there are adequate reasons to take a look at purchasing available land adjacent to the current cemetery, if there are willing sellers. Additional property could be used for parking or adding grave capacity. There is no specific recommendation as to the amount of property or any specific properties being recommended at this time. Another item that was discussed at length by the Cemetery Task Force was the need to make a detailed evaluation of the current cemetery grounds as well as where any future expansion that may occur. It was discussed that some of the current trends in operation of cemeteries might be included in future plans or a rearrangement of existing features of the cemetery. The Task Force discussed the incorporation of a reflecting or memorial area within the cemetery, the addition of Columbaria, or other newer features that are now being found within cemeteries throughout the Twin Cities. The Task Force realizes that under the current operation process it won't be too long before the remaining graves are sold and interments take place; however, with the incorporation of newer options, such as Columbaria or cremation burial sites it would add grave capacity of this cemetery. Additionally, several Task Force members indicated that they thought it would be worth exploring some type of a memorial site within the cemetery where visitors could spend some time sitting and quietly reflecting around a sculpture or a small garden area. This was thought to be an appropriate use of the cemetery grounds as opposed having this type of amenity at some of the more public parks within the City. It could also become a memorial type amenity within the cemetery. The last item that the Task Force is recommending for evaluation is whether or not the City should repair the damaged grave markers that are currently located within the cemetery. The evaluation for such an undertaking would include things such as how they would be repaired and what the cost would be for those repairs. These are all unknown factors that should be researched in greater depth and discussed before any commitment to expenditure of perpetual care funds is made. Staff currently believes that monies from the Perpetual Care Fund cannot be legally use for the repair of markers or monuments and therefore repairs would have to be funded from another source, such as the General Fund Budget. Establishment of a Cemetery Advisory Board While discussing the operation of the cemetery with the Task Force, it became apparent to the city staff that this group of residents is very passionate about Pleasant Hill Cemetery and its operation. Staff is proposing that a Cemetery Advisory Board be established by action of the City Council. The Board would be comprised of five members serving two year terms and they would rotate the terms in such a manner that only two or three or members would go off at any one time. This advisory board would meet two times per year for general cemetery discussions and could be convened for special meetings if a question was raised regarding the interpretation of the Rules and Regulations. This would give the City Council a citizen advisory board to discuss cemetery issues and have them make recommendations prior to any appeal being acted on by the City Council. For example, in the past when the question was raised about grave markers or the size of markers, this would have been a great opportunity for a cemetery board to hear the appeal of the individual and then make a recommendation to the City Council prior to this coming to them for first time discussion at a public meeting. Pleasant Hill Cemetery Task Force Report June 2007 Page 11 of 11 Additionally, items such as expenditure of funds,upgrades of the grounds, and future expansion could also be discussed by this Cemetery Board prior to discussion and action by the City Council. The preliminary ground work would be done by a group of individuals who are fully aware of the operation of the cemetery as well as being apprised of other types of cemetery operations and improvement opportunities. Attachments City of Eden Prairie Heritage Preservation Site Nomination Form Task Force Working Copy of Rules and Regulations Final Rules and Regulations as amended by the City Attorney's office Arial Photo—Pleasant Hill Cemetery Site Photos , ... .,_ . Pleasant Hill Cemetery .•,.0' -, - '.- , ;: :''- • 1 .. fk .fr.:, . ,: ', . .'''': r ,v. ;•'...:' ' -410ifl...,.....,,' :::. :..A.0- :0-47,0- ' . 'Llt 4i_,,,i;..-- i ." - •- - t.... t4.-- ----1......,• .44-:44. .,-:.. - -,-.6.-T,-- , • , •-'-• - .., - •=.:. , - • . - , -11 Ago.. -,,A,:. Atiw, . : • - - .•74'''. -ht .--'.r. ..., , lir I '*r -' • mo•-••" eglir 7, •.1.4 . 4' ' 1Z •-.. ' 1.ir'..it, .,"T` .,1 '4,T„, •_73,-.' . —-. . 0±,... 77, 7.j.F.'PV3i-:!- . . . . WILEirs.,. , y • •.• .1.••••• 14. km. ..._ ..,11A-40•.'' "... 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F-7,- I ..e.........., ...4...,....e 44....1.....44...e,,, I • ..........4.....1....,...4-• 7_ 1 I ,e4.,,, ,. -,4. ......, a. - ...- .e..,./..... ......, .. ..., .......... '..3,,,p,. ,•41. ..,,,,u6 • . _ f- .•_ 1..„i14., ..-,,...e., "FirG'IL E---i . „. - .4,....____ , ,:.,.. c,-.........,,,......,....... 4....,,..........,4,.... .... , - N i: 0 „ . ftwi .,t.../Y•ue, - a..... - ..‘.. .....„,, a-T.-L.- ....,....A. . • .4'../..... A' ,,/,-- ............ ..............h....1 .f„Lt.i. „..7- .. .4,--- vor....... "-.•' .• '. -.;... i ....--' • -L ... .. , • s- ' 1 Added words—bold Revisions as of Nov. 22, 2005 Deleted words -strikethrough CITY OF EDEN PRAIRIE PLEASANT HILL CEMETERY RULES AND REGULATIONS 1. Interments 1.1. Lot Grave Owners are only granted the right of interment in their lots grave(s). The City of Eden Prairie reserves the right to refuse to permit interment of anyone who is not a relative of the owner, by blood or marriage. Written, notarized permission of the let grave owner must accompany all requests for permits to bury persons not members of the immediate family of the let grave owner. 1.2. No interment shall be made in the cemetery except upon at least 24 hours notice prior to the time set for the funeral service interment. 1.3. No casket shall be interred within the cemetery grounds unless first properly enclosed in a concrete vault or grave box. 1.4. Ashes Cremated remains must be placed in an a permanent urn or concrete burial receptacle prior to burial, the scattering of cremated remains is not permitted. 1.5. Prior to interment, in the event that an owner of a let grave or funeral director fails or neglects to inform the City of specific locations of where the burial is to take place, the City of Eden Prairie reserves the right to designate the location of said interment. In the event that an owner of a let grave or a funeral director fails or neglects to inform the City of specific dimensions of the concrete vault, grave box or permanent urn or concrete burial receptacle to be used in said interment, the City shall assume the dimensions to be that of a normal, average standard concrete vault_or grave box, and shall act thereon without assuming any liability in the event that the actual dimensions are different. Information as to the specific location of the intended interment and the specific dimensions of the vault used therein shall be given to the City in writing. Any mistakes or errors made in the location of interment or size of grave occurring as a result of receiving oral information, or incomplete or incomprehensible written information, shall not result in any liability on behalf of the City. 1.6. The owner of the let grave and/or funeral director shall be responsible for procuring the interment permit and shall be responsible for properly identifying the body to be interred before it is placed in the vault. In the event any mistakes or errors are made as to the information in the interment permit or as to the identification of the body, the City shall not be held liable. CITY OF EDEN PRAIRIE PLEASANT HILL CEMETERY RULES AND REGULATIONS Page 2 1.7. No interment of two or more bodies shall be made on one grave except in the following cases: (1) A parent and child may be buried in one casket. (2) Two infants may be buried in one casket. (3) Two urns of ashes cremated remains may be buried on one grave. (4) One body in a casket and one urn of ashes cremated remains may be buried in one grave. 1.8. No interments may be made in the cemetery unless all the ordinances, rules, and regulations regarding interments have been complied with and until the purchase price of said let grave and all burial fees are paid, or arrangements have been made with the City to pay for such costs. 1.9. No interment or removal shall be permitted on any Sunday or any legal holiday. , except in the case of death attributed to a contagious disease. 1.9 The cost of interments, including the burial of ashes cremated remains, shall be determined by the City, and is subject to change. A current fee schedule may be obtained at the City offices. 2. Delay of Interment 2.1. The City of Eden Prairie will not be liable for any delay in the interment of a body when a protest to the interment has been made or where failure to comply with rules and regulations result in delay of interment. 3. Disinterments 3.1. Before any grave may be opened for any purpose, written permission of the next-of-kin of the body to be disinterred shall be filed with the City, along with written permission of the let grave owner, unless said let grave owner is predeceased. Notice of The disinterment will be scheduled by the City. mast be given to the City at least one (1) month prior to the scheduled event. This provision does not apply when disinterment is ordered by a duly authorized public authority. 3.2. The costs of disinterments shall be determined by the City. and shall be the Game as the current cost of interments. CITY OF EDEN PRAIRIE PLEASANT HILL CEMETERY RULES AND REGULATIONS Page 3 4. Conditions of Lot Grave Purchases 4.1. All lots graves will be sold subject to these rules and regulations and any amendments or adoption thereto. The purchaser shall expressly agree, in the deed conveying the let grave, that their rights are subject to such reasonable rules and regulations and any amendments thereto shall constitute the complete sale agreement between the cemetery and the let grave owners. 4.2. No lot grave shall be used for any purpose other than the burial of human remains and the placement of appropriate memorials, pursuant to the rules and regulations of the cemetery. 4.3. No easement or right of interment is granted to any lot grave owner in any road, drive, alley, or walkway within the Pleasant Hill Cemetery, but such a road, drive, alley or walkway may be used as a means of access to the owner's cemetery let-grave or lots graves. 4.4. In the event any errors are made by the City or agent thereof in making interments, disinterments, or removal, or in the description, transfer or conveyance of any interment property, the City shall have the right to correct such error by: (1) canceling such conveyance and substituting and conveying in lieu thereof another interment property of equal value in a location to be determined by the City, or (2) refunding the amount of money paid on account of said purchase 5. Purchase of Lots Graves 5.1. All fees, costs, or charges shall be set by the City and are payable to the City of Eden Prairie at the City offices located at 8080 Mitchell Road, Eden Prairie, Minnesota 5.2. Upon full payment of the purchase price of the lot or lots grave or graves, the City of Eden Prairie will issue a cemetery Deed conveying the let grave, executed by the City, and the Deed shall be recorded in the records of the City. Description of the lots graves will be in accordance with the cemetery plats, which are kept at the City offices. CITY OF EDEN PRAIRIE PLEASANT HILL CEMETERY RULES AND REGULATIONS Page 4 6. Transfer of frets Graves 6.1. In order to transfer a cemetery let grave to another, the owner must complete a Transfer of Ownership document provided by the City, and have the same signed by a witness and notarized by a Notary Public. The Transfer of Ownership document must be reviewed and approved by the City prior to the transfer of a let grave by the owner. The owner of a let grave may transfer said let grave to: (1) The City of Eden Prairie at the original sale price, or if the original price is unknown, the resale price shall be the current sale price for a similar let grave; (2) any surviving relative by will for the use and benefit of the person designated in the will; (3) any person who is a resident of the City of Eden Prairie; or (4) any other person approved by the City of Eden Prairie upon application by the owner of the lot grave. When a transfer has been made in conformance with these rules, the City will issue a deed to the new owner upon surrender, of the prior deed belonging to the previous owner. The surrendered deed will then be canceled and retained by the City. 6.2. No lot or grave will be permitted to be re-sold, disposed of, or otherwise used until the purchase price, and all unpaid fees, costs or charges have been paid in full. 6.3. No cemetery lot or grave may be re-sold or otherwise disposed of without prior approval of the City. 6.4. Lot Grave owners may not allow interments to be made on their lots grave for remuneration unless the transfer of the let grave process has been completed and approved by the City. CITY OF EDEN PRAIRIE PLEASANT HILL CEMETERY RULES AND REGULATIONS Page 5 7. Descent of Lets Graves 7.1. On the death of a grave omelet owner, such grave Of-let shall be granted and conveyed by the City to any of the deceased's parents, descendants or siblings, pursuant to the Minnesota Intestate Succession Laws, Minn. Stat. 525.14, who are qualified to be buried therein, unless provided for by will. The City may request such evidence as it may deem necessary to prove that the graves or lets in question are received by the person who would be entitled to receive them. 8. Markers and Upright Monuments 8.1. Every grave marker must be placed in the space reserved therefore as shown upon the plat of such let grave, or as directed by the City. 8.2. No marker or upright monument, nor any part thereof, may be constructed of limestone, sandstone, or any artificial material. 8.3. No upright monuments will be allowed in the Section III of the cemetery; only flat grave markers of sizes specified by the City will be allowed therein. Marker size shall be limited to 12" x 24" x 4" for a single, flat marker and 12" x 30" 40" x 4" for a double, flat marker unless otherwise approved by the City. Exception: Above ground Upright monuments are allowed in Sections I and II of the cemetery. Any new upright monuments must be of similar size and composition of the current monuments and must be approved by the City prior to installation. 8.4. No foundation will be required for flat markers, which shall be set level flush with the ground. All markers will be set by City of Eden Prairie personnel or by private contractors who must contact the City to receive adequate instruction related to proper placement. Exception: Upright monuments in Sections I & II may require a foundation and must be approved by the City prior to installation. 8.5. Four-inch wide white, cement skirts unadorned mowing borders of approved materials around markers will be allowed encouraged in the cemetery. It will be the responsibility of the owner to have the marker set; however in the event it is set onsite in the white cement concrete, the City Ghall supervise shall approve the work. Any contractors and others involved in such activity must notify the City before commencing any work thereon. 8.6. No marker may be placed in the cemetery will be set by the City until payment of the entire marker setting fee have has been made to the City of Eden Prairie. If a marker or upright monument is to be set by the City, payment of the marker setting fee must be paid to the City in advance. CITY OF EDEN PRAIRIE PLEASANT HILL CEMETERY RULES AND REGULATIONS Page 6 9. Permanent Care 9.1. The general care of the cemetery is assumed by the City and includes the following: (1) cutting of grass at reasonable intervals; (2) raking and cleaning the grounds; (3) pruning of shrubs and trees; and (4) maintaining the general preservation of the lots graves and grounds, walks, (5) roadways, boundaries, and structures. The general care of the cemetery may be awarded by contract to private firms by the City, if desired. 9.2. General care of the cemetery assumed by the City shall not be required to include the maintenance, repair or replacement of any grave marker or memorial placed or erected upon lots graves, net nor shall it include any special or unusual work in the cemetery. 10. Flowers,Adornments and Landscapei-ngImprovements 10.1. Plants and flowers may be placed in pots on stands at grave sites. Plants and flowers may be placed in pots on a single permanent stand at grave sites. The City or any of its employees will not be responsible for the damage or destruction to any flowerpot or vase placed directly on the ground. Flowers placed directly on the grave will be removed and discarded prior to routine cutting of grass. 10.2. Pots and stands should be removed by November 1 of each year and can be replaced at the appropriate grave site beginning May 20 of each year. If pots and stands are left year-round, the City shall is not be responsible for the damage, destruction, or loss thereof. 10.3. Stands unutilized for extended periods of time or not maintained may be removed by the City. 10.4. Live or lowering type potted plants are allowed on special holidays such as Christmas, Easter, Memorial Day or on birthdays or anniversaries. They will be permitted to remain on display for five (5) days after which they will may be removed and discarded. CITY OF EDEN PRAIRIE PLEASANT HILL CEMETERY RULES AND REGULATIONS Page 7 10.5. , Any manner of artificial flowers, plants and wreaths or other adornments are subject to immediate removal beyond a single maintenance period with the exception of 90 days following interment. 10.6. No trees, shrubs, or vines may be planted, nor may any fences erected by any private party on the cemetery grounds. The City reserves the right to remove any tree, shrub, vine, plant, or flowers which may become unsightly, dangerous, diseased, or not in keeping with the landscape design of the cemetery. 10.7. All landscaping, grading and seeding shall be done by the City of Eden Prairie and its designated employees or contractors. All graves will be seeded and kept flush with the adjacent ground. 10.8. The City will make water available to lot grave owners for care of flowers and plants in pots and stands from May 20 to October 20 of each year, depending on the weather and/or general availability of water. 11. Cemetery Management 11.1. The responsibility for the management of the Pleasant Hill Cemetery and all matters related thereto shall be vested in the City. 11.2. The Eden Prairie Parks, Recreation and Natural Resources Department shall be responsible for the care and maintenance of the cemetery. 12. Hours 12.1. The cemetery will be open daily to visitors during the hours of 7:00 a.m. to sunset. Permission to enter at all other times shall be secured from the City. The City reserves the right to refuse admission to the cemetery and to refuse the use of any of the cemetery's facilities, at any time, to any person or persons whom the City may deem objectionable in consideration of the best interest of the cemetery. 13. General Provisions 13.1. Persons within the cemetery shall use only the paths and walkways, and no one is permitted to walk upon or across lots or graves unless it is necessary to do so to gain access to one's own let grave. The City expressly disclaims any liability for any injuries sustained by anyone violating this rule. CITY OF EDEN PRAIRIE PLEASANT HILL CEMETERY RULES AND REGULATIONS Page 8 13.2. Persons visiting the cemetery or attending funerals are strictly prohibited from writing upon, defacing, or injuring any memorial and from breaking or injuring any tree, shrub,plant or other structure within the cemetery grounds. 13.3. The following acts in addition to any other applicable violations of City ordinances and regulations, are expressly prohibited: (1) The driving of motor vehicles into the cemetery, unless attending a funeral, visiting a relative or friend's grave site, or carrying on maintenance work authorized by the City. (2) The driving or parking of any motor vehicle across or upon any grave Of let. (3) The driving of any motor vehicle in excess of ten miles-per-hour within the cemetery grounds. (4) Loud or boisterous talking or music. (5) Bringing lunches or refreshments into the cemetery or consuming them on the grounds. (6) Dogs and other family pets are not permitted on the cemetery grounds on a six foot leash this; includes aid-assisting dogs. with the exception of seeing eye dogs. (7) Peddling or soliciting the sale of any non-cemetery commodity within the cemetery grounds. (8) Placing of signs, notices, or advertisements of any kind within the cemetery. (9) Bringing firearms into the cemetery except by military escort accompanying a veteran's funeral, attending memorial services, or by police officers. 13.4. Special cases may arise in which the literal enforcements or interpretation of a rule may impose an unnecessary hardship. In such cases the City reserves the right to make exceptions, suspensions, or modifications of any of these rules and regulations, when the City deems that such action appears to be necessary. Such a temporary exception, suspension, or modification shall in no way be construed as affecting the general application of such Rules and Regulations. CITY OF EDEN PRAIRIE PLEASANT HILL CEMETERY RULES AND REGULATIONS Page 9 13.5. The City of Eden Prairie reserves the right to remove all monuments, markers, flowers, plants, trees, decorations or other similar objects whenever they become unsafe or unsightly without incurring any liability to any party. 13.6. Specific costs for lets graves, interments, disinterments, burial of ashes cremated remains and setting markers are not included in these Rules and Regulations since these are set by resolution of the City Council. A current schedule of fees can be obtained at the City offices. 13.7. The City of Eden Prairie reserves the right to amend these Rules and Regulations whenever it is determined that it is in the best interest of the cemetery to do so. The City is not required to give notice of such intended action to any person. G:\Parks and Recreation\Recreation\Brenda\Letter&Memos\Stuart 2005\Pleasant Hill Rulesproposed revisionsl.doc December 28,1994 CITY OF EDEN PRAIRIE PLEASANT HILL CEMETERY RULES AND REGULATIONS (as edited by City Attorney) 1. Interments 1.1. Grave owners are only granted the right of interment in their grave(s). The City of Eden Prairie reserves the right to refuse to permit interment of anyone who is not a relative of the owner, by blood or marriage. Written, notarized permission of the grave owner must accompany all requests for permits to bury persons not members of the immediate family of the grave owner. 1.2. No interment shall be made in the cemetery except upon at least 24 hours notice prior to the time set for the interment. 1.3. No casket shall be interred within the cemetery grounds unless first properly enclosed in a concrete vault or grave box. 1.4. Cremated remains must be placed in a permanent urn or concrete burial receptacle prior to burial, the scattering of cremated remains is not permitted. 1.5. Prior to interment, in the event that an owner of a grave or funeral director fails or neglects to inform the City of specific locations of where the burial is to take place, the City of Eden Prairie reserves the right to designate the location of said burial. In the event that an owner of a grave or a funeral director fails or neglects to inform the City of specific dimensions of the concrete vault, grave box, or permanent urn or concrete burial receptacle to be used in said interment, the City shall assume the dimensions to be that of a standard concrete vault or grave box, and shall act thereon without assuming any liability in the event that the actual dimensions are different. Information as to the specific location of the intended interment and the specific dimensions of the vault used therein shall be given to the City in writing. Any mistakes or errors made in the location of interment or size of grave occurring as a result of receiving oral information, or incomplete or incomprehensible written information, shall not result in any liability on behalf of the City. 1.6. The owner of the grave and/or funeral director shall be responsible for procuring the interment permit and shall be responsible for properly identifying the body to be interred before it is placed in the vault. In the event any mistakes or errors are made as to the information in the interment permit or as to the identification of the body, the City shall not be held liable. 1.7. No interment of two or more bodies shall be made in one grave except in the following cases: (1) A parent and child may be buried in one casket. CITY OF EDEN PRAIRIE PLEASANT HILL CEMETERY RULES AND REGULATIONS Page 2 (2) Two infants may be buried in one casket. (3) Two urns of cremated remains may be buried on one grave. (4) One body in a casket and one urn of cremated remains may be buried in one grave. 1.8. No interments may be made in the cemetery unless all the ordinances, rules, and regulations regarding interments have been complied with and until the purchase price of said grave and all burial fees are paid, or arrangements have been made with the City to pay for such costs. 1.9 The cost of interments, including the burial of cremated remains, shall be determined by the City, and is subject to change. A current fee schedule may be obtained at the City offices. 2. Delay of Interment 2.1. The City of Eden Prairie will not be liable for any delay in the interment of a body when a protest to the interment has been made or where failure to comply with these Rules and Regulations result in delay of interment. 3. Disinterments 3.1. Before any grave may be opened for any purpose, written permission of the next-of- kin of the body to be disinterred shall be filed with the City, along with written permission of the grave owner, unless said grave owner is predeceased. The disinterment will be scheduled by the City. This provision does not apply when disinterment is ordered by a duly-authorized public authority. 3.2. The costs of disinterments shall be determined by the City. 4. Conditions of Grave Purchases 4.1. All graves will be sold subject to these Rules and Regulations and any amendments or adoption thereto. The purchaser shall expressly agree, in the deed conveying the grave, that their rights are subject to these Rules and Regulations and any amendments thereto shall constitute the complete sale agreement between the cemetery and the grave owners. 4.2. No grave shall be used for any purpose other than the burial of human remains and the placement of appropriate memorials, pursuant to the Rules and Regulations of the cemetery. CITY OF EDEN PRAIRIE PLEASANT HILL CEMETERY RULES AND REGULATIONS Page 3 4.3. No easement or right of interment is granted to any grave owner in any road, drive, alley, or walkway within the Pleasant Hill Cemetery, but such a road, drive, alley, or walkway may be used as a means of access to the owner's cemetery grave or graves. 4.4. In the event any errors are made by the City or agent thereof in making interments, disinterments, or removal, or in the description, transfer or conveyance of any interment property, the City shall have the right to correct such error by: (1) canceling such conveyance and substituting and conveying in lieu thereof another interment property of equal value in a location to be determined by the City, or (2) refunding the amount of money paid on account of said purchase 5. Purchase of Graves 5.1. All fees, costs, or charges shall be set by the City and are payable to the City of Eden Prairie at the City offices located at 8080 Mitchell Road, Eden Prairie, Minnesota. 5.2. Upon full payment of the purchase price of a grave, the City of Eden Prairie will issue a cemetery Deed conveying the grave, executed by the City, and the Deed shall be recorded in the records of the City. Description of the grave will be in accordance with the cemetery plats, which are kept at the City offices. 6. Transfer of Graves 6.1. In order to transfer ownership of a cemetery grave to another, the owner must complete a Transfer of Ownership document provided by the City, and have the same signed by a witness and notarized by a Notary Public. The Transfer of Ownership document must be reviewed and approved by the City prior to the transfer of a grave by the owner. The owner of a grave may transfer said grave to: (1) The City of Eden Prairie at the original sale price, or if the original price is unknown, the resale price shall be the current sale price for a similar grave; (2) any surviving relative by will for the use and benefit of the person designated in the will; (3) any person who is a resident of the City of Eden Prairie; or (4) any other person approved by the City of Eden Prairie upon application by the owner of the grave. CITY OF EDEN PRAIRIE PLEASANT HILL CEMETERY RULES AND REGULATIONS Page 4 When a transfer has been made in conformance with these rules, the City will issue a deed to the new owner upon surrender of the prior deed belonging to the previous owner. The surrendered deed will then be canceled and retained by the City. 6.2. No grave will be permitted to be re-sold, disposed of, or otherwise used, until the purchase price, and all unpaid fees, costs or charges have been paid in full. 6.3. No cemetery grave may be re-sold or otherwise disposed of without prior approval of the City. 6.4. Grave owners may not allow interments to be made in their grave for remuneration unless the process for transfer of graves has been completed and approved by the City. 7. Descent of Graves 7.1. On the death of a grave owner, such grave shall be granted and conveyed by the City to any of the deceased's parents, descendants or siblings, pursuant to the Minnesota Intestate Succession Laws, Minn. Stat. 525.14, who are qualified to be buried therein, unless provided for by will. The City may request such evidence as it may deem necessary to prove that the grave in question is received by the person who would be entitled to receive it. 8. Markers and Upright Monuments 8.1. Every grave marker must be placed in the space reserved therefore as shown upon the plat of such grave, or as directed by the City. 8.2. No marker or upright monument, nor any part thereof, may be constructed of limestone, sandstone, or any artificial material. 8.3. No upright monuments will be allowed in Section III of the cemetery; only flat grave markers of sizes specified by the City will be allowed therein. Marker size shall be limited to 12" x 24" x 4" for a single, flat marker and 12" x 40" x 4" for a double, flat marker, unless otherwise approved by the City. Exception: Upright monuments are allowed in Sections I and II of the cemetery. Any new upright monuments must be of similar size and composition as the current monuments and must be approved by the City prior to installation. 8.4. No foundation will be required for flat markers, which shall be set flush with the ground. All markers will be set by City of Eden Prairie personnel or by private contractors who must contact the City to receive adequate instruction related to proper placement. Exception: Upright monuments in Sections I & II may require a foundation and must be approved by the City prior to installation. CITY OF EDEN PRAIRIE PLEASANT HILL CEMETERY RULES AND REGULATIONS Page 5 8.5. Four-inch wide unadorned mowing borders of approved materials will be encouraged in the cemetery. It will be the responsibility of the owner to have the marker set; however in the event it is set onsite, the City shall approve the work. Any contractors and others involved in such activity must notify the City before commencing any work thereon. If a marker or upright monument is to be set by the City, payment of the marker setting fee must be paid to the City in advance. 9. Permanent Care 9.1. The general care of the cemetery is assumed by the City and includes the following: (1) cutting of grass at reasonable intervals; (2) raking and cleaning the grounds; (3) pruning of shrubs and trees; (4) maintaining the general preservation of the graves and grounds, walks, and (5) maintaining roadways, boundaries, and structures. The general care of the cemetery may be awarded by contract to private firms by the City, if desired. 9.2. General care of the cemetery assumed by the City shall not be required to include the maintenance, repair or replacement of any grave marker or memorial placed or erected upon graves, nor shall it include any special or unusual work in the cemetery. 10. Flowers, Adornments, and Landscape Improvements 10.1. Plants and flowers may be placed in pots on a single permanent stand at grave sites. The City or any of its employees will not be responsible for the damage or destruction to any flowerpot or vase placed directly on the ground. Flowers placed directly on the grave will be removed and discarded prior to routine cutting of grass. 10.2. Pots and stands should be removed by November 1 of each year and can be replaced at the appropriate grave site beginning May 20 of each year. If pots and stands are left year-round, the City is not responsible for the damage, destruction, or loss thereof. CITY OF EDEN PRAIRIE PLEASANT HILL CEMETERY RULES AND REGULATIONS Page 6 10.3. Stands which are utilized or maintained for extended periods of time may be removed by the City. 10.4. Live or lowering-type potted plants are allowed on special dates such as Religious holidays, Memorial Day, birthdays, or anniversaries. They will be permitted to remain on display for five (5) days after which they may be removed and discarded. 10.5. Any manner of artificial flowers, plants, wreaths, or other adornments are subject to immediate removal beyond a single maintenance period, with the exception of 90 days following interment. 10.6. No trees, shrubs, or vines may be planted, nor may any fences erected by any private party on the cemetery grounds. The City reserves the right to remove any tree, shrub, vine, plant, or flowers which may become unsightly, dangerous, diseased, or which is not in keeping with the landscape design of the cemetery. 10.7. All landscaping, grading, and seeding shall be done by the City of Eden Prairie and its designated employees or contractors. All graves will be seeded and kept flush with the adjacent ground. 10.8. The City will make water available to grave owners for care of flowers and plants in pots and stands from May 20 to October 20 of each year, depending on the weather and/or general availability of water. 11. Cemetery Management 11.1. The responsibility for the management of the Pleasant Hill Cemetery and all matters related thereto shall be vested in the City. 11.2. The Eden Prairie Parks, Recreation and Natural Resources Depai tiiient shall be responsible for the care and maintenance of the cemetery. 12. Hours 12.1. The cemetery will be open daily to visitors during the hours of 7:00 a.m. to sunset. Permission to enter at all other times shall be secured from the City. The City reserves the right to refuse admission to the cemetery and to refuse the use of any of the cemetery's facilities, at any time, to any person or persons whom the City may deem objectionable in consideration of the best interest of the cemetery. 13. General Provisions 13.1. Persons within the cemetery shall use only the paths and walkways. No one is permitted to walk upon or across graves unless it is necessary to do so to gain access CITY OF EDEN PRAIRIE PLEASANT HILL CEMETERY RULES AND REGULATIONS Page 7 to one's own grave. The City expressly disclaims any liability for any injuries sustained by anyone violating this rule. 13.2. Persons visiting the cemetery or attending funerals are strictly prohibited from writing upon, defacing, or injuring any memorial and from breaking or injuring any tree, shrub,plant, or other structure within the cemetery grounds. 13.3. The following acts, in addition to any other applicable violations of City ordinances and regulations, are expressly prohibited: (1) The driving of motor vehicles into the cemetery, unless attending a funeral, visiting a relative or friend's grave site, or carrying on maintenance work authorized by the City. (2) The driving or parking of any motor vehicle across or upon any grave. (3) The driving of any motor vehicle in excess of ten miles-per-hour within the cemetery grounds. (4) Loud or boisterous talking or music. (5) Bringing lunches or refreshments into the cemetery or consuming them on the grounds. (6) Peddling or soliciting the sale of any non-cemetery commodity within the cemetery grounds. (7) Placing of signs, notices, or advertisements of any kind within the cemetery. (8) Bringing firearms into the cemetery except by military escort accompanying a veteran's funeral, attending memorial services, or by police officers. 13.4. Special cases may arise in which the literal enforcement or interpretation of a rule may impose an unnecessary hardship. In such cases, the City reserves the right to make exceptions or modifications to, or suspensions of, any of these Rules and Regulations, when the City deems that such action appears to be necessary. Such a temporary exception, modification, or suspension shall in no way be construed as affecting the general application of such Rules and Regulations. 13.5. The City of Eden Prairie reserves the right to remove all monuments, markers, flowers, plants, trees, decorations or other similar objects whenever they become unsafe or unsightly without incurring any liability to any party. CITY OF EDEN PRAIRIE PLEASANT HILL CEMETERY RULES AND REGULATIONS Page 8 13.6. Specific costs for graves, interments, disinterments, burial of cremated remains, and setting markers are not included in these Rules and Regulations since these are set by resolution of the City Council. A current schedule of fees can be obtained at the City offices. 13.7. The City of Eden Prairie reserves the right to amend these Rules and Regulations whenever it is determined that it is in the best interest of the cemetery to do so. The City is not required to give notice of such intended action to any person. 14. Pets 14.1 Dogs and other family pets, including aid-assisting dogs, are permitted on the cemetery grounds. All pets, including aid-assisting dogs, must remain on a leash no longer than six (6) feet in length at all times while on the cemetery grounds. P:\Home\EP\Pleasant Hi11\Drafts of Rules and Regulations\PLEASANT HILLS CEMETERY RULES AND REGS FINAL.doc CITY OF EDEN PRAIRIE HERITAGE PRESERVATION SITE NOMINATION PLEASANT HILL CEMETERY This report contains information supporting the nomination of the Pleasant Hill Cemetery for designation as a Heritage Preservation Site pursuant to City Code §11.05. It identifies and locates the historic property, explains how it meets the Heritage Preservation Site eligibility criteria, makes the case for its historic significance and integrity, and recommends a plan of treatment to guide site preservation and rehabilitation efforts. Once the Pleasant Hill Cemetery is designated a Heritage Preservation Site by the City Council, this document will become part of the official record. The report is divided into five narrative sections: Planning Information, Description, Significance, Sources of Information, and Treatment Plan. A sixth section, Additional Documentation, follows the text and consists of maps, plans, and photographs which are labeled and captioned; following Heritage Preservation Site designation by the City Council, the State Historic Preservation Officer comment letter, public hearing notice, and a signed copy of the resolution should be added here. The report was prepared by Robert C. Vogel, a consulting historian retained by the City of Eden Prairie, who is solely responsible for the information contained herein. The final draft was delivered to the Heritage Preservation Commission on July 31, 2004. 1 I. PLANNING INFORMATION Name The historic name of the Heritage Preservation Site under which the property has been nominated is the Pleasant Hill Cemetery. This is also the name by which the property is commonly known. Inventory Number The Pleasant Hill Cemetery has been assigned number HE-EPC-086 in the historic properties inventory maintained by the State Historic Preservation Office of the Minnesota Historical Society. Location The Pleasant Hill Cemetery has no street address. It is located on the north side of Pioneer Trail (CSAH 1) in the SE 1/4 of SE 1/4 of NW 1/4 of NW 1/4 of Section 26, Township 116 North, Range 22 West. Boundaries The Heritage Preservation Site encompasses the original cemetery and additions platted under the auspices of the Pleasant Hill Cemetery Association. The full legal description is filed with the Hennepin County Recorder. Owner The cemetery is owned and operated by the City of Eden Prairie. Classification For preservation planning purposes, the Pleasant Hill Cemetery is categorized as a single historic site with two components: a rural cemetery and a lawn cemetery. Present Use The Pleasant Hill Cemetery remains in active use as a public cemetery. 2 II. DESCRIPTION General Character The Pleasant Hill Cemetery is located approximately one-half mile east of U.S. Highway 169 along the north side of Pioneer Trail (Hennepin County Highway 1). The cemetery grounds encompass about four acres and are surrounded on all sides by suburban development. The historic site consists of two components: the Old Section (west side), representing the original rural burying ground laid out in 1885, and the New Section (east side), a lawn cemetery laid out in 1972. Both sections are characterized by their broad expanses of lawn, parallel rows of grave markers, and paved driveways. The cemetery is well kept and contains approximately one thousand graves. Physiography The Pleasant Hill Cemetery is situated on a narrow, bench-like terrace overlooking the valley of Purgatory Creek to the north. The terrain is level to gently undulating, except for a small area on the back side of the Old Section which slopes away to the north. While the New Section is an open lawn, the Old Section has several large deciduous and evergreen shade trees. The west half of the historic site is partially screened from Pioneer Trail by a row of young trees planted outside the cemetery fence. According to the 1854 government land survey field notes, the natural or pre-settlement plant cover at this locality was predominantly upland forest (bur oak, red oak, elm, basswood, and maple) interspersed with tallgrass prairie openings. The surrounding countryside was once farmland all the way down to Purgatory Creek, but current land use is predominantly urban. The historic site is bordered on two sides by wide expanses of pavement associated with the Pax Christi Catholic Church parking lot to the east and the four-lane Pioneer Trail to the south. Old Section The original burying ground may have been used as early as 1856 but was not platted until 1885. The oldest part of the site is a 2.2-acre rectangular grid containing 96 lots, each of which is subdivided into eight graves. The lots in the back part of the Old Section were laid out in 1958 and an additional twenty lots were added on the north side of the Old Section after the Presbyterian Church building was removed in 1966. The landscape plan provides for a central driveway and a grid of narrow alleys that intersect at right angles at the corners of the lots. The main entrance to the cemetery is from a turnout off Pioneer Trail, through a steel double-gate. Except for the central driveway, which is now paved with bituminous asphalt, none of the alleys were surfaced. There are approximately three hundred graves in the Old Section, including an unknown number of unmarked burials. Burials and second interments are still taking place in the old cemetery, where some unsold lots and individual graves were still being offered for sale in 2004. 3 New Section The lawn cemetery (New Section) was acquired in 1972 and platted into lots. It occupies a polygon-shaped parcel with a grid of rectangular lots arranged in linear blocks oriented east-and-west. Each lot contains four graves. The paved entrance roadway runs north- south and there are thirteen intersecting alleys. A row of evergreens marks the western boundary and a chain-link fence separates the old from the new burying grounds. There are two gated entrances to the New Section: one for vehicles off of Pioneer Trail and one for pedestrians on the side facing the Pax Christi church parking lot. Structures There are no buildings at the historic site, which is enclosed by a chain-link fence. A simple painted wood sign set in a concrete block planter outside the fence marks the main entrance. Grave Markers Several hundred gravestones, monuments, and plaques serve as focal points within the cemetery, where they comprise an important landscape architecture and art history resource. The oldest gravestones are found in the rural cemetery and represent a wide range of types, styles, and methods of manufacture. The most common form is the rectangular stone tablet set upright perpendicular with the ground, with carved decoration and inscriptions on one or both of the broad vertical planes. Traditional white marble tablets with straight, domed, or shouldered top surfaces predominate, but there are individual specimens of"Undertaker Gothic" tombstones as well as obelisks and columns which reflect the nineteenth century fascination with romantic and classical themes. Carved stone crouching lambs mark some of the children's graves. Some of the older graves are marked by small footstones bearing the initials of the deceased.1 The most common types of twentieth century gravestones are the upright monolithic slabs (stelae) of finished granite resting on a stone plinths, polished granite bevel markers, and slant markers set on concrete bases. The graves in the New Section are marked by lawn level markers which take the form of inscribed stones or cast metal plaques set flush with the ground surface. Examples of these flat "grass markers" are also found on many of the newer graves in the Old Section. The cemetery does not contain a "field of honor" reserved for the burial of military veterans. Nor did it ever have a designated "potter's field" set aside for pauper burials. For many years the cemetery has followed standard lawn cemetery maintenance practices. None of the graves in either section are raised. After every burial the soil is I The term "headstone" derives from the position of the stone above the interred corpse's head. Traditionally, burials were placed so that the heads faced east, but this practice is no longer widely followed. 4 allowed to settle naturally, then the groundskeepers add topsoil periodically until settlement ceases before covering the grave with turf. Vegetation Both sections of the cemetery are open except for scattered ornamental trees and shrubs. The cemetery grounds are bordered with trees and a row of evergreens separates the two sections. The trees are an interesting aspect of the Old Section and some of the specimen oaks may be among the oldest of their kind in the area. The present ground cover is a dense, uniformly green lawn of mixed cool-season grasses, predominantly Kentucky bluegrass (Poa pratensis), which is kept mowed at a height of 2"-4" and nearly edged around the gravestones. Permanent grave plantings are not permitted. Alterations There have been numerous alterations to the historic site, some of which have detracted from its historic character. The most significant change has been the removal of the Presbyterian Church, which occupied the lot between the old burying ground and the county road from 1869 until it was demolished in 1966. The old semi-circular driveway at the entrance to the cemetery was replaced after the lot formerly occupied by the church was merged into the burying ground. The replacement driveway and associated landscaping were obliterated when Pioneer Trail was widened during the 1990's. No traces remain of historic gates or signage and nothing of the old woven wire fence except a remnant along the north boundary of the Old Section. Overall, the gravestones have retained much of their historic integrity. The leading cause of gravestone deterioration appears to have been natural weathering, especially the effects of freezing and thawing, atmospheric pollution, soil chemistry, and vegetation. Damage resulting from grading, filling, and earthmoving appears to have been minimal, though several monuments exhibit chipping and scaring from lawn mower blades. A few gravestones have been damaged by vandalism. Most of the old lot corner markers and all of the historic lot furniture (ornaments, vases, curbing, fencing)have been removed. Natural forces and human actions have combined to significantly alter the plant cover within the cemetery. Aerial photographs taken in 1937, 1953, and 1960, for example, show a marked reduction in the number of mature trees growing inside the cemetery boundaries. Dutch Elm disease claimed many of the mature shade trees during the 1970's; twenty years later, road construction resulted in the removal of several specimen-sized oak trees along the front of the cemetery. Historically, the rural cemetery encouraged lot owners to plant permanent flower beds on the graves; these grave plantings and the native plants preserved in unmowed areas made the cemetery a kind of horticultural repository. Unfortunately, the development of the lawn obliterated all traces of the historic grave plantings and ground cover, as well as any remnants of native prairie that may have been present. 5 III. SIGNIFICANCE Cemeteries are an important aspect of Eden Prairie's heritage because they provide a record of the community's settlement and growth and offer valuable insights into its social history. The Pleasant Hill Cemetery meets the ordinance criteria for designation as a Heritage Preservation Site and derives its historical significance from its distinctive cultural landscape features and its association with historic events. Contextually, it relates to the broad themes of Agricultural Settlement and Rural Churches and Cemeteries in Eden Prairie, and illustrates both the nineteenth century Rural Cemetery and twentieth century Lawn Cemetery movements in landscape architecture. Secondarily, as a relict rural historic landscape the Pleasant Hill Cemetery derives significance from its association with late twentieth century suburban development. The Old Section of the Pleasant Hill Cemetery should be considered eligible for listing in the National Register of Historic Places under Criteria Consideration D (Cemeteries). The South Section will become eligible for the National Register in 2022, fifty years from the date of platting. Chronology The following timeline, based primarily upon cemetery association records in the possession of the City, briefly summarizes the history of the cemetery: 1856 Gideon H. Pond acquires a three-acre tract from Martin S. McLeod, to be held in trust by the Oak Grove Presbyterian Church; United Presbyterian Church organized in Eden Prairie; first burials [?] 1869 Eden Prairie United Presbyterian Church constructed 1885 Pleasant Hill Cemetery Association incorporated under the laws of Minnesota; rural cemetery platted; twenty-two burials moved from Bloomington Cemetery 1895 South row of lots withdrawn from sale (to allow room for an addition to the church); cistern installed on back part of cemetery 1896 Secretary directed to locate and make a record of every burial 1901 Cemetery gate (purchased from Flour City Ornamental Iron Works of Minneapolis) and wire fence (purchased from Pendergast Fence Co., Minneapolis) installed 1923 Lawn mower purchased for$13.25 1924 5' high chain link fence and steel gate (purchased from Crowley Fence Co., Minneapolis, for$462) installed 6 1934 New sign installed 1935 Permanent fund "for the upkeep of the cemetery" discussed at annual meeting 1946 Power lawn mower purchased 1952 Wood coffins prohibited 1958 Back part of cemetery platted into burial lots 1960 Eden Prairie Presbyterian Church moves into new building on Flying Cloud Drive; new lawn mower purchased for$90 1961 Transfer of ownership of old church site leads Cemetery Association to file a lawsuit against Eden Prairie Presbyterian Church (not settled until 1980) 1966 Old church building demolished 1967 Driveway blacktopped 1972 New Section purchased from developers Carter and Gertz 1987 Cemetery Association transfers ownership of cemetery to the City of Eden Prairie The Pleasant Hill Cemetery attained the historical significance qualifying it for designation as a Heritage Preservation Site when it was laid out in 1885. For planning purposes, 1972 has been selected as the closing date of the site's period of significance. The Rural Cemetery The first burials may have occurred at the site shortly after the land was acquired by the missionary Gideon H. Pond of Bloomington in 1856. The Eden Prairie United Presbyterian Church eventually came to own the site and in 1869 erected a frame church alongside the public highway. A private, non-sectarian cemetery association was formed in 1885 when the Pleasant Hill Cemetery was detached from the church and formally platted. The 1885 plat of survey clearly illustrates how the cemetery plan reflected the principles of the Rural Cemetery Movement (sometimes referred to as the American Cemetery Movement).2 By the middle of the nineteenth century the ancient custom of burying the dead in church graveyards had come to be viewed as unsanitary and progressive-minded Americans, inspired by European landscape gardeners, were busily laying out carefully designed, 2 Pleasant Hill was a popular cemetery name during the nineteenth century: rural burying grounds named Pleasant Hill are found from coast to coast, especially in the South,where it was also a common name for Baptist and Methodist churches. 7 park-like cemeteries embellished with picturesque "natural" features and romantic landscape ornaments. Unlike the old church graveyards and family burying grounds, the new cemeteries were governed by codified rules and carefully designed in accordance with contemporary American notions of aesthetics, propriety, and fashionability. The prototype detached "rural" cemetery in the United States was Mount Auburn in suburban Boston, laid out in 1831; Laurel Hill outside Philadelphia (established in 1836) and Green-Wood in Brooklyn (established in 1838) were also widely regarded as models of the new American cemetery movement. The practice of laying out detached rural cemeteries was well established in Minnesota by the 1850's.3 There is every indication the founders of the Pleasant Hill Cemetery subscribed to the view that a proper cemetery needed to be a morally improving, educational, soothing, and dignified place. In conformance with the rural cemetery model, they selected a beautiful spot in slightly hilly country that required relatively little grading and filling to be made convenient for burials. Most of the land inside the cemetery boundaries was set off in a gridiron of contiguous rectangular lots, with the graves arranged in parallel rows. Each lot contained room for eight graves, the intent being to allow families to purchase enough adjoining burial spaces to be united in death. Ample space was set aside for carriage driveways and pedestrian walkways so that funeral parties would have access to the entire site without having to cross any burial plots. The plan also facilitated the circulation of visitors around and through the cemetery, which was designed to accommodate outdoor socializing, even picnics, while at the same time providing places for reflection and memorialization.4 The rural cemetery was a necropolis, literally a "city of the dead," and the individual lots were private landholdings where the owners, rather than the cemetery association, were responsible for their beautification and maintenance. This had the effect of making each lot a miniature cultural landscape, reflecting the tastes and character of individual families. With respect to form and decoration, no historic views and few written accounts survive. Nevertheless, it is surmised that graveside gardening was commonly practiced before the era of "perpetual care" and it is therefore likely that many of the plots contained flower beds or border plantings.5 Some plots may have been enclosed with fences or curbing. Like all cemeteries, the Old Section at the Pleasant Hill Cemetery reflects the cultural tone of its time. Although pioneer era burials were doubtless characterized by their solitary, lonely economy, during the late nineteenth century the inhabitants of Eden Prairie and surrounding rural communities readily adopted the elaborate rituals and funerary customs associated with the Victorian era. Like their urban counterparts, rural 3 Some religious organizations had their own cemeteries, though usually not in physical connection with the house of worship. 4 The system of connected drives and alleys was also a popular Victorian allegory for the journey of life. 5 Nineteenth century horticulturists went to great lengths in compiling lists of appropriate cemetery trees and flowering plants for grave gardens. The use of evergreen and deciduous trees, for example, was intended to provide evidence of the changing seasons and to remind visitors of the temporary nature of life. Popular perennials for Victorian era grave gardens included roses, day lilies, lilacs, morning glories, and violets;each plant had its own special symbolism. 8 families grieved publicly, wore clothing that distinguished them as mourners, and memorialized the departed with carved stone monuments that emphasized life's fragility and the inevitability of mortality. Burials were a communal activity and the cemetery was seen as a symbol of community values: indeed, cemeteries were widely viewed as social and cultural institutions whose chief purpose was to promote a sense of historical continuity and community stability.6 While the funerals and graveside services themselves were solemn occasions, visits to the cemetery were an opportunity for rural socializing among neighbors and distant family members, many of whom were hard- working farmers or laborers with little time for leisure activities. In many ways, the rural cemetery functioned as a community park (in 1849, an estimated 10,000 carriages visited Mount Auburn Cemetery outside Boston every weekend; the pattern was repeated throughout the United States). The Pleasant Hill Cemetery was created as a non-denominational, non-profit corporation with the lot owners acting as stock holders in the enterprise. Burial plots were property rights which could be sold or transferred by inheritance, subject to the cemetery association by-laws. At the annual business meeting proscribed by state law, a secretary- treasurer and board of trustees was elected from amongst the lot owners and given responsibility for managing the grounds, selling lots, and maintaining proper records. The following excepts from the reports of the trustees and minutes of the annual meetings show that considerable attention was paid to cemetery landscaping in the form of trees, ground cover, fences, and signage as well as to the upkeep of lots: January 17, 1887: "[I]t was voted that the board have the power to plant one row of trees on every alternate lot on the line of street." May 6, 1897: Lots to be identified "by having a stone set at the N.E. corner of each lot with the figures engraved on the top of said stone representing each lot in rotation. Now there be it known to all concerned the record of their lots will be found on the page in this book that corisponds [sic] with the number of their lot and further that each page has been platted into four subdivisions to be considered as N.E. 1/4 N.W. 1/4 S.E. 1/4 & S.W. 1/4 calling the top of the page North. Each 1/4 is suposed [sic] to be large enough to contain three graves and the record of each burial shall be recorded in its true location in said subdivision." January 16, 1899: "It was suggested that the Cemetery be mowed & cleaned up twice each summer." May 29, 1901: Paid George Cornwell $20.06 for one iron gate and two iron posts, eight rods of "woven wire," 50 lbs. of iron pipe, 4 lbs. of staples, and twenty hewed wooden posts. 6 Cemetery organizations were especially fond of quoting the proverb, attributed to Benjamin Franklin: "Show me your cemeteries, and I will tell you what kind of people you have." (What Franklin actually wrote was: "Show me first the graveyards of a country and I will tell you the true character of the people.") 9 January 20, 1902: "Next it was moved& sec. that the Shade Trees be cut at top to a uniform height & that the [sic] were of the opinion that about May would be the time to do it." January 28, 1952: "Be it resolved: that from now and henceforth it is unlawful to use wooden boxes for burial." February 16, 1959: Motion to hire boys to cut grass at $10 per cutting "with a bonus of$10.00 for the season on condition a good job is done." January 27, 1967: Secretary to check "various lots having bushes that are uncared for." January 31, 1981: Motion "to fix old stones." As time passed, some of the lots began to fall into disrepair as descendants moved away or families died out; the increasing age of the gravestones, plantings, and cemetery fixtures was also a problem. Because the cemetery was undercapitalized from the outset, the set price for lots did not allow for inflation or rising maintenance costs; as expenses mounted and revenues dwindled, the old graves became a liability for the association. Judging from the annual meeting minutes, it appears that by the 1940's private upkeep of lots had become the exception rather than the rule. The cemetery association had started making small cash outlays for site maintenance and small improvements as early as 1905, with the secretary and individual trustees carrying out much of the work themselves (for which they received reimbursement from the general operating fund). Funds for some of the major improvements were raised through subscription and donations from association members. The Lawn Cemetery In 1972 the Pleasant Hill Cemetery Association purchased the two acres adjoining the cemetery on the east from the developers of The Preserve. The tract was surveyed and the lots were offered for sale. Since the 1930's, the cemetery had been operated as a "perpetual care" entity, with the goal of providing a uniform level of service to every lot and grave. The new addition to the cemetery was laid out to maximize efficiency and in the process much of the old burial ground's character defining landscaping was eliminated. The utilitarian lot plan and the prohibition of large upright gravestones in the New Section made it easier for the caretaker to mow the grass (though somewhat harder for visitors to find individual graves). By this time, much of the picturesque roughness of the Old Section had also been smoothed over. Just as the Rural Cemetery Movement had evolved in response to overcrowded church graveyards, the Lawn Cemetery Movement was a reaction to the problems inherent in the 7 Many cemetery professionals argue that flush markers are more expensive to maintain than upright gravestones because they tend to settle, especially when impacted by the machinery used to dig graves and mow the grass. 10 rural cemetery concept. First introduced in 1855 at the Spring Grove Cemetery in Cincinnati, Ohio, the lawn or "lawn park" style of cemetery landscaping relied upon undulating terrain and large expanses of lawn for visual effect. Trees, shrubs, and other plantings were kept to a minimum to allow the play of sunlight over the greensward, and careful attention was paid to ensuring that grave markers conformed to a comprehensive plan. Under the lawn plan, individual lot owners were restrained from decorating their plots with plantings or grave furniture by a rigid system of rules and regulations; all of the service and care of the grounds was provided by the cemetery association. By the 1920's, the model lawn cemetery (also commonly referred to as a "memorial park") was a carefully manicured green space devoid of natural features, with ornamental plantings allowed only at carefully prescribed intervals, where the grave markers were all of a standard size and shape, laid flat in the ground to facilitate mowing. The transformation from rural burying ground to lawn cemetery at Pleasant Hill reflected an important shift in popular attitudes toward death and the purpose of cemeteries. As mortality rates declined in response to advances in health care, diet, and the rising standard of living, the culture of death and funerals became increasingly privatized, sanitized, and professionalized. Even in rural communities like Eden Prairie, by the early 1900's the care of the dying had been to a large extent taken over by the medical profession and the burial of the dead turned over to morticians; people who grew up during the second half of the twentieth century had even less direct experience in dealing with death. This cultural shift had a dramatic effect on cemeteries: what Victorians had regarded as a culturally and morally uplifting social space now came to be defined as an exclusive place for placing the dead. Graves and Gravestones The Pleasant Hill Cemetery is believed to contain about one thousand graves. Several hundred of these are marked by permanent memorials inscribed with the decedents' names, dates, and brief epitaphs. In addition to the aesthetic, sentimental, and commemorative value of the stones themselves, the inscriptions represent an important source of historical and genealogical information that is potentially useful for students of local history. As a group, the stones silently tell the story of settlement, migrations, ethnic heritage, religious affiliations, family connections, demography, and the life ways of social groups. Interwoven with these are the raw data of genealogical interest: names and dates.8 Some of those buried at Pleasant Hill were important persons in their lifetimes; a few could even be called "historical figures" on the basis of their documented associations with important historical events. These include Eden Prairie and Bloomington township pioneers, veterans of the Civil War and subsequent conflicts, politicians, business and civic leaders, artists, and other prominent individuals. While their graves and grave markers do not qualify as individually significant historic resources, they represent points 8 Marie Wittenberg included a list of interments in her privately-printed 1987 book, Eden Prairie Cemeteries and Chanhassen Catholic; another list, compiled by Debbie Boe in 2001, has been posted online at<www.presenter.com/—gregboe/EdenPrairie%20-pleasant_hill_cemetery.htm>. 11 of interest for cemetery visitors and are therefore an important asset for historic site interpretation. The cultural history of gravestone art is a subject of abiding interest for historians and preservationists and the Pleasant Hill Cemetery exhibits a diverse collection of funerary art objects. Limestone and other locally quarried stone, as well as wooden planks, were occasionally used for grave markers during the period of initial settlement, but marble was by far the most popular gravestone material in the nineteenth and early twentieth century. Engravers found the crystalline rock easy to carve and the surfaces could be smoothed and polished to a high sheen. Nearly all of the nineteenth century gravestones are white, the color traditionally associated with tombstones (an allusion to bones and corpses). Granite became a popular choice for grave monuments at the end of the nineteenth century and is the stone most widely used today for cemetery monuments. Black, grey, pink, red, and white granite markers are found throughout the Pleasant Hill Cemetery. In terms of their iconography, the older markers in the Old Section are embellished with carved stone angels (symbolizing spirituality), hands (shown clasping, praying and pointing), keys (spiritual knowledge), lambs (most often denoting a child's grave), lamps (immortality of spirit), urns, wreaths, scrolls, willows, and oak leaves. Some gravestones are marked with initials, acronyms, religious symbols and the insignia of various veterans and fraternal organizations. Most epitaphs are conservative and brief. The gravestones shed light on past social customs and make the site an irreplaceable heritage resource. While the individual markers generally lack historical significance, they are collectively important because of their continuity as an historic landscape feature. Some of the stones have art history value as sculpture, but most are examples of common marker types, or variations on standard designs, that illustrate the progression of gravestone styles from the 1880's through the 1950's. Many of the old gravestones, for example, show the influence of Victorian period attitudes toward death, with their emphasis on sentimentality and melancholy. The twentieth century grave markers, though designed to be less obvious and emotional, are equally important for the information they provide about changes in burial customs. 12 IV. SOURCES OF INFORMATION Primary Sources (Site Documentation) Borchert Map Library, University of Minnesota. Hennepin County air photos, flown in 1937, 1953, and 1960. Black-and-white photographs. City of Eden Prairie. Pleasant Hill Cemetery Association records, 1885-1987. Ledgers, minute books, and miscellaneous records, on file with the Parks and Recreation Department. City of Eden Prairie. Pleasant Hill Cemetery plat of survey, 1885, with annotations. Copy of plat filed with the Hennepin County Record, on file with the Parks and Recreation department. Secondary Sources (Historic Context) Ames, Kenneth L. "Ideologies in Stone: Meanings in Victorian Gravestones." Journal of Popular Culture, Vol. 14 (Spring, 1981):641-656. Anderson, Helen. Eden Prairie: The First Hundred Years. Eden Prairie Historical Society and Cultural Commission, 1979. [Pleasant Hill Cemetery discussed p. 84- 85.] Farrell, James J. Inventing the American Way of Death 1830-1920. Philadelphia: Temple University Press, 1980. Francaviglia, Richard V. "The Cemetery as an Evolving Cultural Landscape." Annals of the Association of American Geographers,Vol. 61 (1971):502-510. French, Stanley. "The Cemetery as Cultural Institution: The Establishment of Mount Auburn and the 'Rural Cemetery Movement." American Quarterly, Vol. 26 (March, 1974):37-59. Hall, Roger and Bruce Bowden. "Beautifying the Boneyard: The Changing Image of the Cemetery in the Nineteenth Century." Material History Bulletin, Vol. 23 (1986):13- 24. Healy, George. "The Location, Laying Out, Planting, and Care of Cemeteries." Transactions of the Minnesota State Horticultural Society, Proceedings, Essays and Reports at the Annual Winter Meeting, held at Rochester, January 15th, 16th and 17th, 1978,pp. 74-77. Minneapolis: Johnson, Smith & Harrison, 1878. Jackson, Kenneth T. and Camilo Jose Vegara. Silent Cities: The Evolution of the American Cemetery. New York: Princeton Architectural Press, 1989. 13 Potter, Elisabeth Walton and Beth M. Boland. Guidelines for Evaluating and Registering Cemeteries and Burial Places. National Register Bulletin 41. Washington: U.S. Department of the Interior,National Park Service, 1992. Schweigert, Kurt P. Contexts in the Prehistory and History of Eden Prairie, Minnesota. Report prepared for the Eden Prairie HPC by Tellus Consultants, 1992. [Local historic context IV:A:3, Rural Churches and Cemeteries discussed on pp. 52-55 and 57.] Sloan, David Charles. The Last Great Necessity: Cemeteries in American History. Baltimore: Johns Hopkins University Press, 1991. Vogel, Robert C., David G. Stanley, and E. Arthur Bettis III. Historic Landscape and Archeological Surveys in the City of Eden Prairie, Minnesota. Report prepared for the Eden Prairie HPC by Bear Cree Archeology, 1994. [Pleasant Hill Cemetery discussed on pp. 52-53.] Wittenberg, Marie Berger. Eden Prairie Cemeteries and Chanhassen Catholic. Eden Prairie: privately printed, 1987. [Historical background and a list of Pleasant Hill Cemetery interments.] . Eden Prairie Remembers. Eden Prairie: privately printed, 1990. [Presbyterian Church and Pleasant Hill Cemetery discussed on pp. 51-54.] 14 V. SITE TREATMENT PLAN Expectations The historic Pleasant Hill Cemetery is expected to remain active for the foreseeable future. However, to avoid possible disturbance of unmarked graves, the Heritage Preservation Commission recommends that new burials in the Old Section be approved only after thoroughly researching the burial history of the plot. The City may want to deny the purchase of any burial plot in the Old Section where questions remain unresolved regarding burial history. When the Old Section lots are full, the site will be maintained as conservancy open space within the city parks system. The City is committed to operating the cemetery in a manner consistent with its historic character. While custom and tradition require dedicated and marked burial places, the community's need for well-landscaped public open space can also be met by offering opportunities for passive recreation in the form of a cemetery garden park. Traditionally, rural cemeteries like Pleasant Hill were not only memorials to the dead; they also had a vital aesthetic function as public gardens. By planting appropriate trees, shrubs, and perennial flowers (both legacy and contemporary species), and installing low- maintenance walkways, benches, and interpretation stations, Pleasant Hill Cemetery could be made into a horticultural showplace, "a pastoral oasis in the midst of urban sprawl." Treatment Concept For planning purposes, the Pleasant Hill Cemetery Preservation Site is treated as one historic resource with two significant cultural landscape components: the Old Section (rural cemetery) and the New Section(lawn cemetery). The preferred treatment for the Pleasant Hill Cemetery is preservation, with rehabilitation where appropriate. For purposes of implementing the Site Treatment Plan, preservation is defined as: The act or process of applying measures to sustain the existing form, integrity and material of the cemetery and its historic components, including the existing form and vegetative cover of the site. It includes temporary protective measures to guard the cemetery from deterioration or loss from natural or man-made causes, stabilization work to re-establish the structural stability of unsafe or damaged landscape features, and maintenance of the historic site. As an historic property treatment,rehabilitation is defined as: The act or process of returning a cemetery (or part of a cemetery) to a state of utility through repair or alteration which makes possible a safe and efficient contemporary use while preserving those portions or features which are significant to its historical, architectural, and cultural values. 15 Restoration to recover the form and details of the site as it appeared during a particular period of time by removing later work, and the reconstruction of missing historic features, is not recommended. Permit Review Standards and Guidelines As a matter of policy, in its review of applications for Heritage Preservation Site Alteration Permits the Heritage Preservation Commission will apply the Secretary of the Interior's Standards for the Treatment of Historic Properties within the framework of the present Treatment Plan. To facilitate the design review process, the Heritage Preservation Commission will utilize the National Park Service publication, The Secretary of the Interior's Standards for the Treatment of Historic Properties with Guidelines for the Treatment of Cultural Landscapes.9 The Parks and Recreation Department is also encouraged to consult this publication when planning for cemetery maintenance and improvements. Best Management Practices for Historic Cemeteries The City has adopted the following "best management practices" for the preservation, protection, and use of historic cemeteries in Eden Prairie: • Preservation and rehabilitation of the historic cemetery should be guided by the concept of doing as little as possible, but as much as necessary, to preserve the character and significance of the cemetery. • Cemetery maintenance should be "light on the land," avoiding practices that could damage grave markers and unmarked burials. Practices that build up the ground are preferred over those which may result in soil removal, erosion or compaction. • The use of large power mowers and weed-whips within historic burial plots is not recommended. Hand mowing and manual weeding is strongly recommended. Spot spraying of herbicides is recommended for removing weeds growing around the bases of gravestones. • Care should be taken when removing invasive weeds, trees, and old tree stumps growing close to historic graves. • Re-inscription of weathered gravestones is not recommended. Historic inscriptions are best preserved by transcripts and photographs. In cases involving historically important inscriptions, illegible inscriptions may be transcribed onto a plaque made of stainless steel or other durable material and placed next to (but not attached to)the gravestone. 9 The Guidelines for the Treatment of Cultural Landscapes were developed by the National Park Service in cooperation with the Alliance for Historic Landscape Preservation and published in 1996. 16 • Visibility and lighting are the best deterrence to vandalism. The decision to use other protective measures such as fences and signs should be based on careful analysis of the actual or anticipated threats to the historic integrity of the cemetery. • Never use Portland cement to repair broken granite or marble: the cement reacts with the stone and will spoil the polish of most stone surfaces. A waterproof epoxy resin cement may be appropriate for repairing cracks • Never use iron or steel dowels or clamps to repair broken stones: use bronze dowels set in lead, mason's putty, or waterproof epoxy resin. • As a last resort, set broken stones individually in concrete pedestals, using a waterproof cement and keeping the upper surface of the concrete well clear of the ground and sloped to shed snow and rainwater. • Gravestones and grave furniture should not be removed from the site for maintenance unless absolutely necessary. • Cemetery signs, section markers, and historic grave furniture should be preserved in place wherever practicable. • Provide maintenance personnel with information and training in historic preservation practices to ensure that each cemetery's unique historical and cultural qualities are taken into account during routine maintenance work. When rehabilitating historic landscape features, bear in mind that: • No work other than essential maintenance and interments can be undertaken in the historic cemetery until plans have been reviewed and determined appropriate by the Heritage Preservation Commission. • Alteration of the historic plan and layout of the cemetery (driveway, paths, walkways, plots, and vegetation) must be avoided. If minor changes are necessary, every effort must be made to retain the original design concept. The use of incompatible modern materials (asphalt paving, chain link fencing, concrete curbing, etc.) should be avoided wherever possible. • Landscaping and other improvements should attempt to redress any damage previously done to the site. Grading and earth moving should be kept to a minimum and eroded surfaces need to be built up wherever possible. • It is always appropriate to use trees, shrubs, and perennial plantings to establish borders, define access points, and screen visual intrusions. Plantings should include traditional cemetery species and follow established patterns. 17 • Mature trees, shrubs, and perennial plants may have preservation value in their own right and should be identified and retained wherever possible. • New trees and other plantings should be planned with careful consideration given to their ultimate size and potential to overshadow or damage historic cemetery features, their seasonal variation in appearance, and a balance between providing privacy for contemplation and visibility to deter vandals. • Historic gravestones and significant grave furniture should be preserved in place, repaired, and properly maintained. • In cases where a historic gravestone has been shattered or otherwise severely damaged, the fragments should be retained in situ. Broken fragments which cannot be preserved at the grave site should be buried or attached to a structure of appropriate design at a designated spot within the cemetery in a manner sympathetic to the site's historic character. The details of the broken fragments will need to be documented. • Because the significance of gravestones is greatly reduced if they are removed from their original context, gravestones and monuments should never be relocated or rearranged, even if this causes minor problems in mowing and other routine maintenance. • Gravestones that have been removed from their original location should be reinstated whenever possible, but only if documentation of the correct location is available. When developing programs for historic interpretation, consider: • Establishing interpretation stations at the principal access points to provide places for appropriate commemorative monuments, historical markers, information kiosks, or other media. • Working with the Eden Prairie Historical Society and other organizations to produce a self-guided tour for the cemetery, which can be left in a weather-proof container. • Placing durable, vandal-proof signage near the cemetery entrance, with a general map of the layout and points of interest • Offering guided tours of the historic cemetery. • Posting information about the historic cemetery on the World Wide Web. 18 • Placing copies of all important historical cemetery records in the hands of the Heritage Preservation Commission (City Planning Department files). 19 VI. ADDITIONAL DOCUMENTATION 1) Historic cemetery location map 2) 1885 plat of the Pleasant Hill Cemetery 3) Aerial view and site plan of the Pleasant Hill Cemetery 4) Plan of New Section 5) Photographs (selected views) 6) Minnesota SHPO comment letter [to be added later] 7) Heritage Preservation Site public hearing notice [to be added later] 8) Ordinance designating the Pleasant Hill Cemetery as a Heritage Preservation Site [to be added later] 20 AGENDA EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY, JUNE 5, 2007 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Phil Young, Council Members Brad Aho, Sherry Butcher, Jon Duckstad, and Kathy Nelson CITY STAFF: City Manager Scott Neal, Parks & Recreation Director Jay Lotthammer, Public Works Director Eugene Dietz, City Planner Michael Franzen, Community Development Director Janet Jeremiah, City Attorney Ric Rosow and Council Recorder Jan Curielli I. ROLL CALL/CALL THE MEETING TO ORDER II. PLEDGE OF ALLEGIANCE III. COUNCIL FORUM INVITATION IV. PROCLAMATIONS/PRESENTATIONS A. 2006 HUMAN RIGHTS AWARDS B. MAGC (MINNESOTA ASSOCIATION OF GOVERNMENT COMMUNICATORS) AWARDS C. MS. MINNESOTA PROCLAMATION V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS VI. MINUTES A. OPEN FORUM/OPEN PODIUM HELD TUESDAY, MAY 15, 2007 B. CITY COUNCIL MEETING HELD TUESDAY, MAY 15, 2007 VII. REPORTS OF ADVISORY BOARDS & COMMISSIONS A. HUMAN RIGHTS & DIVERSITY COMMISSION VIII. CONSENT CALENDAR A. CLERK'S LICENSE LIST B. ADOPT RESOLUTION APPROVING FINAL PLAT OF BLUFF COUNTRY VILLAGE 2ND ADDITION C. ADOPT RESOLUTION APPROVING FINAL PLAT OF DELL STATION CITY COUNCIL AGENDA June 5, 2007 Page 2 D. ADOPT RESOLUTION APPROVING PARTICIPATION IN A RETIREMENT ENHANCEMENT BENEFITS PROGRAM (REBA) E. APPROVE CAFETERIA PLAN MASTER DOCUMENT F. APPROVE AGREEMENT WITH HENNEPIN COUNTY TO BECOME A REGIONWIDE PUBLIC SAFETY RADIO COMMUNICATIONS SYSTEM SUBSCRIBER AND TO BECOME AN INTERCONNECTED DISPATCH FACILITY ON THE COUNTYWIDE 800 MHZ TRUNKED RADIO SUBSYSTEM IX. PUBLIC HEARINGS/MEETINGS A. LIFE CHURCH Request for: Planned Unit Development Concept Review on 7.96 acres, Planned Unit Development District Review on 7.96 acres, Zoning District Amendment within the Public Zoning District on 7.96 acres and Site Plan Review on 7.96 acres. Location: 14100 Valley View Road. (Resolution for Planned Unit Development Concept Review; Ordinance for PUD District Review and Zoning District Amendment) B. LARIAT CENTER — APPLEBEE'S Request for: Planned Unit Development Concept Review on 5.85 acres, Planned Unit Development District Review on 5.85 acres, Zoning District Amendment in the Commercial Regional Service District on 5.85 acres and Site Plan Review on 5.85 acres. Location: Prairie Center Drive & Joiner Way. (Resolution for Planned Unit Development Concept Review; Ordinance for PUD District Review and Zoning District Amendment) C. VACATION OF PUBLIC RIGHT-OF-WAY EASEMENT AND SLOPE EASEMENT OVER PART OF EDEN ROAD,VACATION 07-03 X. PAYMENT OF CLAIMS XI. ORDINANCES AND RESOLUTIONS XII. PETITIONS, REQUESTS AND COMMUNICATIONS XIII. APPOINTMENTS A. ARTS & CULTURE COMMISSION XIV. REPORTS A. REPORTS OF COUNCIL MEMBERS B. REPORT OF CITY MANAGER 1. Sprint-Nextel Agreement C. REPORT OF COMMUNITY DEVELOPMENT DIRECTOR CITY COUNCIL AGENDA June 5, 2007 Page 3 A. REPORT OF PARKS AND RECREATION DIRECTOR E. REPORT OF PUBLIC WORKS DIRECTOR 1. Technology Drive Streetscape/Landscape Project, I.C. 07-5691 F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY 1. Proposed FCM Resolution XV. OTHER BUSINESS XVI. ADJOURNMENT CITY COUNCIL AGENDA DATE: SECTION: Proclamations/Presentations June 5, 2007 DEPARTMENT/DIVISION: ITEM NO.: IV.A. Molly Koivumaki ITEM DESCRIPTION: Community Dev. Human Rights Awards Housing &Human Services Requested Action Recipients of the Human Rights Awards will be recognized. The Human Rights Awards recognize accomplishments from 2006. 2006 Human Rights Award—Non-Profit Organization Recipient Eden Prairie Presbyterian Church 2006 Human Rights Award—Individual Recipient Cindy Eddy 2006 Human Rights Award—Business Sun Current Newspaper Mayor Young will introduce both Cari Maguire, Chair of the Human Rights and Diversity Commission, and Melissa Barra, Vice-Chair, who will both come to the speaker's podium. Cari Maguire will read a short statement of purpose. Mayor Young will ask each recipient to come up and stand with the Chair and Vice-Chair(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: Cari Maguire, Chair Melissa Barra Vice Chair Larry Piumbroeck Pamela Spera Jeff Strate Gerry Beckmann Daniel Abraira Staff Liaison: Molly Koivumaki Attachments Recipient Information Human Rights Awards 2006 Non-Profit Recipient Eden Prairie Presbyterian Church Since May, 2006, Eden Prairie Presbyterian Church has offered space for the Spanish Evangelical church Rey de Reyes to workshop on Saturday and Sunday afternoons. Before their move to Eden Prairie Presbyterian, Rey de Reyes was meeting in the basement of a home in Chaska. Their move has allowed them to increase both their comfort and the number of members able to worship. Many times, the reality of a multicultural community is different cultural groups living in the same city, but separately and not communicating or interacting with one another. A multicultural community is not just about acceptance, but a true desire to understand the embrace both the unique cultures and differences in the community. The partnership that was created between Eden Prairie Presbyterian and Rey de Reyes has taken this next step and exemplifies all components of the Eden Prairie manifesto. 2006 Individual Recipient Cindy Eddy Cindy Eddy has been involved with helping Eden Prairie families through her volunteer work at PROP for many years. Over a period of years, Cindy helped meet the ongoing need for furniture and household items in the community and in doing so, transformed her garage into a small furniture warehouse for low income families. With much energy, enthusiasm and diligence, Cindy decided to take her passion one step farther by developing The PROP Shop—a beautiful nonprofit resale shop designed to help local families in need. Cindy's spirit of volunteerism is contagious. Through example, she encourages the community to share its wealth, creating a more "even playing ground" for all of Eden Prairie's residents. A family that has its basic needs met is more likely to participate in the community, seek employment in the community and stay living in the community. Long-term residents help create a community of strength. 2006 Business Recipient Sun Current Newspapers Sun Current Newspaper publishes weekly newspapers in Eden Prairie, Edina, Richfield and Bloomington. Its series of articles entitled POVERTY: THE POOR NEXT DOOR provided a revealing, substantive and surprising account of an aspect of life in Eden Prairie and neighboring suburban cities that largely goes un-noticed. The series provides a forum for the voices of the hungry, homeless and helpless and the organizations, agencies and volunteers that address this nearly invisible challenge in the four cities. Each of the five parts of the series is supported with national and local statistical and demographic references,with writing that is clear and engaged. Sun Current writers Lyn Jerde, Mike Schoemer, Harvey T. Rockwood and Steven Pease; photographer Marie Foss; Sun current layout and graphic artists; and editor Mike Westerholder have provided the challenging issue of local poverty with gravitas and sunlight. C PROCLAMATION City of Eden Prairie Hennepin County, Minnesota WHEREAS, Ms. Nicole Swanson is a resident of the great State of Minnesota; and WHEREAS, Ms. Swanson has well served the public as Ms. Minnesota; and WHEREAS, Ms. Swanson has dedicated her efforts to the empowerment, advancement and achievement of young women in the City of Eden Prairie as well as Minnesota; and WHEREAS, Ms. Swanson's work has promoted the voices of young women in politics, culture and community; and WHEREAS, Ms. Swanson, through her leadership, has advocated for education, arts and awareness; and WHEREAS, Ms. Swanson has represented Minnesota in the Miss America Pageant. NOW, THEREFORE, BE IT PROCLAIMED THAT: The Mayor and City Council of the City of Eden Prairie, Minnesota, extend their best wishes and gratitude to Ms. Swanson for her dedicated representation of the state of Minnesota as Minnesota's entrant to the Miss America Pageant. ADOPTED by the Eden Prairie City Council on this 5th day of June 2007. IN WITNESS WHEREOF, I have affixed the seal of the City of Eden Prairie. __?... .ip (.. ,64_,Len. Phil Young, Mayor on behalf of Council Members: Brad Aho Sherry Butcher Jon Duckstad Kathy Nelson ITEM NO.: VI.A. UNAPPROVED MINUTES CITY COUNCIL WORKSHOP & OPEN FORUM/OPEN PODIUM TUESDAY, May 15, 2007 CITY CENTER 5:00—6:25 PM, HERITAGE ROOM II 6:30—7:30 PM, COUNCIL CHAMBER CITY COUNCIL: Mayor Phil Young, Council Members Brad Aho, Sherry Butcher, Jon Duckstad and Kathy Nelson CITY STAFF: CITY STAFF: City Manager Scott Neal, Police Chief Rob Reynolds, Fire Chief George Esbensen, Public Works Director Eugene Dietz, Community Development Director Janet Jeremiah, Parks and Recreation Director Jay Lotthammer, Communications Manager Joyce Lorenz, Assistant to the City Manager Michael Barone, City Attorney Ric Rosow, and Council Recorder Jan Curielli I. CITY MANAGER'S PERFORMANCE REVIEW (closed session) II. OPEN FORUM A. FLYING CLOUD AIRPORT 1. Mark Michelson—Zero Expansion Mark Michelson, 17151 Cedarcrest Drive, distributed copies of a proposed resolution that he said would clarify and reaffirm the City's official position on the proposed extension and widening of Runway 9R/271 and the construction of additional hanger space at Flying Cloud Airport. He was concerned that helping the Metropolitan Airports Commission (MAC) in one area allows them more money for another area. He thought the City should return to the policy of neutrality on this issue. 2. Joe Smith—Elliott Aviation Joe Smith, General Manager of Elliott Aviation, said he does not live in Eden Prairie but has been active in the Chamber of Commerce for many years and served on the former Flying Cloud Advisory Commission. He reviewed the issues leading up to the 2002 agreement between the City and MAC, noting there was little communication with MAC prior to the agreement and relations between the City, MAC and the business community were strained or even adversarial. He said the 2002 agreement has served the community very well and has provided opportunities for dialogue and communication on issues. He thought it is important to ensure that all parties abide by the existing agreement. 3. Dave Ward—Chamber of Commerce Dave Ward, Chairman of Eden Prairie Chamber of Commerce, said the review of the history given by Mr. Smith is important. He said the Chamber of Commerce supports the final agreement and the modernization of Flying CITY COUNCIL WORKSHOP & OPEN FORUM/OPEN PODIUM MINUTES May 15, 2007 Page 2 Cloud Airport. Businesses are a key element to the City and the airport is important to the large businesses in the area, providing 300 jobs on site and having an economic impact of$80,000,000 in the southwest suburbs. He thought the best course of action is to stay the course. 4. Laura Neuman Laura Neuman, 8903 Silver Ridge, believes the City is intentionally deceiving the public about its position on the expansion of Flying Cloud Airport. She reviewed a paper trail she said proves the City has tried to lobby for the expansion of the airport. She thought the public has a right to know if the City Council is for expansion of the airport. 5. Kim Vohs Kim Vohs, 15900 Hillcrest, thought there is no difference between the terms "expansion" and"improvement."He thought there is an effort by the City to promote the expansion of the airport by supporting the plan to improve the buildings and authorizing staff to seek federal support. III. OPEN PODIUM 6. Christopher Kramer Christopher Kramer, 17295 Acorn Ridge, thanked City Manager Neal for writing MAC expressing disappointment that they were not going to improve sewer and water at the airport. He was concerned with helping MAC fund the sewer and water improvements at the airport, and he didn't know why the City should assume the credit liability for those improvements. 7. Gary Demee Gary Demee, 9425 Shetland Road, thought the City has no business being in the airport business. IV. ADJOURNMENT ITEM NO.: VI.B. UNAPPROVED MINUTES EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY, MAY 15, 2007 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Phil Young, Council Members Brad Aho, Sherry Butcher, Jon Duckstad and Kathy Nelson CITY STAFF: City Manager Scott Neal, Parks & Recreation Director Jay Lotthammer, Public Works Director Eugene Dietz, City Planner Michael Franzen, Community Development Director Janet Jeremiah, City Attorney Ric Rosow and Council Recorder Jan Curielli I. ROLL CALL/CALL THE MEETING TO ORDER Mayor Young called the meeting to order at 7:16 p.m. II. PLEDGE OF ALLEGIANCE III. COUNCIL FORUM INVITATION IV. PROCLAMATIONS/PRESENTATIONS A. NATIONAL POLICE WEEK PROCLAMATION Mayor Young read a proclamation proclaiming May 15, 2007, to be Peace Officers' Memorial Day and the week of May 13-19 as National Police Week in the City of Eden Prairie, Minnesota. City Manager Neal presented the new Parks & Recreation Director, Jay Lotthammer, to the Council Members. Mayor Young welcomed Mr. Lotthammer. V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Butcher said she would like to add a comment under Item XIV.A. REPORTS OF COUNCIL MEMBERS. Neal said he will have three brief reports under Item XIV.B. REPORT OF CITY MANAGER. MOTION: Aho moved, seconded by Duckstad, to approve the agenda as published and amended. Motion carried 5-0. VI. MINUTES A. COUNCIL PLANNING SESSION HELD ON TUESDAY, APRIL 24, 2007 MOTION: Duckstad moved, seconded by Aho, to approve the minutes of the Council Planning Session held Tuesday, April 24, 2007, as published. Motion carried 5-0. CITY COUNCIL MINUTES May 15, 2007 Page 2 B. COUNCIL WORKSHOP HELD ON TUESDAY, MAY 1, 2007 MOTION: Aho moved, seconded by Nelson, to approve the minutes of the City Council Workshop held Tuesday, May 1, 2007, as published. Motion carried 5-0. C. CITY COUNCIL MEETING HELD TUESDAY, MAY 1, 2007 MOTION: Duckstad moved, seconded by Butcher, to approve the minutes of the City Council Meeting held Tuesday, May 1, 2007, as published. Motion carried 5- 0. VII. REPORTS OF ADVISORY BOARDS & COMMISSIONS A. PLANNING COMMISSION Neal noted this is another in the continuing series of regular presentations to the City Council of what is happening with the boards and commissions. He introduced Planning Commission Chair Ray Stoelting and Staff Liaison Mike Franzen. Chair Stoelting presented a slide show that reviewed the duties, responsibilities, and current activities of the Planning Commission. He said they have four current activities: Comprehensive Guide Plan Update—The Commission has held workshops to review individual chapters of the Guide Plan, the document that establishes the direction of growth for the City. They are currently about half way through the document and will bring a draft to the City Council in September or October. Town Center Design Guidelines - The Town Center Design Guidelines are intended to be a working document for the City for property owners, developers and consultants to communicate visually how the Town Center should be built and how it should look. Some of the key topics addressed were streetscape, architecture,public space,public art and alternative transportation. They will be working on draft guidelines for the draft ordinance at their next meeting and their recommendation should come to the Council early this summer. Active Community Planning—The Commission is involved in active community planning, which is a new program created by Blue Cross/Blue Shield of Minnesota in conjunction with the University of Minnesota Design Center. The program offers grants to cities and counties that want to incorporate active living principles into their community planning. The City of Eden Prairie received a grant of$73,670 in 2006 to look at ways to modify the Guide Plan and zoning ordinances to include more active living principles. The Commission will hold workshops this summer covering air and water quality, alternative transportation, sidewalks and safety issues, housing, and spaces for recreation. They will make recommendations in the draft Guide Plan and the Town Center Design Guidelines to promote more active living. CITY COUNCIL MINUTES May 15, 2007 Page 3 Project Review-In 2006 the Planning Commission reviewed 35 projects and 12 variances. They reviewed the projects for conformance with two documents, the Comprehensive Guide Plan and City Code. The Commissioners receive packets before each meeting and they review the information in the packets prior to the meeting. They hold a public hearing on each project, hear testimony from the project applicant, and listen to comments from property owners, residents and City staff. They then prepare an advisory recommendation to the Council. Council Members thanked Stoelting and Franzen for the presentation and for the hard work done by the Commission. VIII. CONSENT CALENDAR A. CLERK'S LICENSE LIST B. BLUFF COUNTRY VILLAGE 2nd ADDITION-MOUNT Second reading of Ordinance No. 15-2007-PUD-3-2007 for Planned Unit Development Concept Review on 5.8 acres, Planned Unit Development District Review on 5.8 acres, Zoning District Amendment in the Neighborhood Commercial Zoning District on 2 acres, Site Plan Review on 2 acres and Preliminary Plat of 5.8 acres into two lots and one outlot. Location: Hennepin Town Road& Pioneer Trail. (Ordinance No. 15-2007-PUD-3-2007 for PUD District Review and Zoning District Amendment; Resolution No. 2007-60 for Site Plan Review) C. BLUFF COUNTRY VILLAGE 2nd ADDITION -TREK Second reading of Ordinance No. 16-2007-PUD-4-2007 for Planned Unit Development Concept Review on 5.8 acres, Planned Unit Development District Review on 5.8 acres, Zoning District Amendment in the Neighborhood Commercial Zoning District on.7 acres, Site Plan Review on.7 acres and Preliminary Plat of 5.8 acres into two lots and one outlot. Location: Hennepin Town Road& Pioneer Trail. (Ordinance No. 16-2007-PUD-4-2007 for PUD District Review and Zoning District Amendment; Resolution No. 2007-61 for Site Plan Review) D. FLYING CLOUD BUSINESS CENTER EAW. Request for Approval of an EAW. (Resolution No. 2007-62 for Finding of no significant impact) E. AUTHORIZE APPROVAL OF BIDS AS RECOMMENDED BY THE CONSTRUCTION MANAGER FOR COMMUNITY CENTER DASHERBOARDS, FIRE SPRINKLER SYSTEMS,AND ELECTRICAL SYSTEMS F. APPROVE ASSIGNMENT OF CONTRACTS AWARDED BY THE CITY FOR THE COMMUNITY CENTER RECONSTRUCTION TO RJM CONSTRUCTION G. AWARD CONTRACT FOR 2007 BITUMINOUS OVERLAY PROJECT TO BITUMINOUS ROADWAYS CITY COUNCIL MINUTES May 15, 2007 Page 4 H. AWARD CONTRACT FOR 2007 STREET SEALCOATING TO PEARSON BROS. INC. I. APPROVE CHANGE ORDER FOR PHASE II OF THE NONDEGRADATION ANALYSIS BY WENCK ASSOCIATES J. APPROVE PROPOSAL TO COMPLETE PHASE III OF THE NONDEGRADATION ANALYSIS BY WENCK ASSOCIATES K. DECLARE OBSOLETE COMPUTER EQUIPMENT AS SURPLUS AND AUTHORIZE DISPOSAL OF EQUIPMENT L. AUTHORIZE AMENDMENT FOR A 60-DAY EXTENSION TO THE PURCHASE AGREEMENT FOR THE SALE OF 4.8 ACRE SITE OWNED BY THE CITY AND LEGALLY DESCRIBED AS LOT 1, BLOCK 1, AND OUTLOT C—COLUMBINE ADDITION (Presbyterian Homesi M. ADOPT THE CITY'S FINANCE AND BUDGET POLICIES N. ADOPT RESOLUTION NO. 2007-63 AUTHORIZING A LEASE PURCHASING AGREEMENT WITH THE HRA FOR THE THIRD SHEET OF ICE O. DIRECT STAFF TO NOT WAIVE MONETARY LIMITS ON MUNICIPAL TORT LIABILITY ESTABLISHED BY MINNESOTA STATUTES 466.04 P. APPROVE ICE RENTAL AGREEMENT WITH THE EDEN PRAIRIE HOCKEY ASSOCIATION MOTION: Duckstad moved, seconded by Aho, to approve Items A-P of the Consent Calendar. Motion carried 5-0. IX. PUBLIC HEARINGS/MEETINGS A. VACATION OF PART OF THE DRAINAGE AND UTILITY EASEMENT OVER LOT 4, BLOCK 2, CARMEL,VAC. 07-02 (Resolution No. 2007-64) Neal said notice of this public hearing was published in the April 26, 2007,Eden Prairie Sun Current and sent to 6 property owners. The request is to vacate part of the Drainage and Utility easement to facilitate the construction of a garage addition. He said normally this would be considered a housekeeping action item; however, we received some new information concerning this item. Dietz showed the location of the property on a map, noting the home was built in the late 1980's. He said the owner wanted to add another stall on their garage and proposed to vacate half of the 10-foot drainage easement along the lot line. Such easements are typically five feet on each side of the property line, but there was no record of why this is wider than normal and they found no utilities in the easement. When adjacent property owners were notified of this request, the owner to the east CITY COUNCIL MINUTES May 15, 2007 Page 5 notified us that this is where his sewer and water service is located. Because of that situation, staff is proposing to vacate only 20 feet of the five-foot easement along the lot line to accommodate the garage addition in order to avoid putting the addition over the sewer and water line and still provide access to the lines. There were no comments from the audience. MOTION: Duckstad moved, seconded by Aho, to close the Public Hearing and to adopt Resolution 2007-64 vacating part of the drainage and utility easement over Lot 4, Block 2, Cannel, subject to the modifications as suggested by staff Motion carried 5-0. X. PAYMENT OF CLAIMS MOTION: Aho moved, seconded by Butcher, to approve the Payment of Claims as submitted. The motion was approved on a roll call vote,with Aho,Butcher, Duckstad, Nelson and Young voting "aye." XI. ORDINANCES AND RESOLUTIONS XII. PETITIONS, REQUESTS AND COMMUNICATIONS XIII. APPOINTMENTS XIV. REPORTS A. REPORTS OF COUNCIL MEMBERS 1. City Manager's Performance Review Young said the Council met in closed session prior to the meeting to conduct the performance evaluation of Mr. Neal for the year just concluded. He said the Council discussed and considered the evaluations presented by its consultant and the Council's own evaluation of Mr. Neal's performance. The Council concluded that Mr. Neal's performance this past year was excellent. Based on Mr. Neal's performance the Council determined it was appropriate to award Mr. Neal a merit payment award of 3.5% of base salary and to increase his base salary by 2%. He said the Council was unanimous in both decisions, and Council Members were very complimentary of Mr. Neal for his service to the Council, staff and to the residents at large. MOTION: Butcher moved, seconded by Nelson, to approve the award of a lump-sum merit payment of 3.5% of Mr. Neal's base salary and to increase Mr. Neal's base salary by 2%. Motion carried 5-0. 2. Comments on 2002 Agreement on Flying Cloud Airport Butcher said she wanted to comment regarding the Open Forum and Open Podium discussion as well as the various letters, emails, and letters to the CITY COUNCIL MINUTES May 15, 2007 Page 6 editors of the newspapers. She said it all indicates there is much anxiety surrounding Flying Cloud Airport. There are many questions and concerns and there is some misinformation as well. She said this Council has never had a discussion about changing the 2002 final agreement. It is her personal view that we stand by our negotiated agreement that we worked so hard to get. When there were divergent views from individuals expressed tonight, everyone seemed to stand on that agreement and it provided common ground. She would like to set a meeting date during a workshop to hold a Council discussion in order to ameliorate some of the concerns and worry. She thought it would give residents a perspective from each Council Member of how we stand on the airport. Because this is a new Council, there are fears there will be a shift in perspective. Such a discussion would help to clarify, answer questions, and hopefully dispel anxieties. Duckstad said he went back to check the City Guide Plan update which incorporated the facts surrounding the final agreement and made reference to what is called a proposed expansion of Flying Cloud Airport in Chapter 6 under 6.5. The Guide Plan update does say the City policy supports only those changes to the airport that would retain the airport's fundamental character. The Guide Plan update further states in part that the City and MAC have executed a final agreement and the City finds the commitments contained in the final agreement will mitigate the potential adverse environmental consequences of the expansion and maintain the character of the airport. On this basis the City withdrew its opposition to the proposed airport expansion. As far as he knew, the Guide Plan has never been altered and continues to exist to date. He reviewed the restrictions on activities listed in the final agreement, noting this is a legal contract that to his knowledge has never been amended or changed, and he stands by the final agreement. Nelson asked whether we should discuss this at a workshop or on the record at a Council meeting. Young thought it appropriate to hold a discussion at a workshop because we reserve Council meetings for action items. Neal said typically this type of item would be referred to a commission or discussed at a workshop meeting. He said June 19 and July 17 are possibilities for workshop dates. Aho thought we did not need to dedicate a whole workshop to this. He said he also supports the 2002 agreement and sees no change to that agreement. He thought we are doing a great job of monitoring it through the Flying Cloud Airport Advisory Commission and other monitoring methods. Neal said there are prohibitions on what the City can and can't do in the final agreement. If the Council is contemplating passing a resolution, the City Attorney should review it for any prohibited language in the document. Butcher thought it wouldn't just be a discussion one by one, but also might provide a good opportunity for new Council Members to understand what CITY COUNCIL MINUTES May 15, 2007 Page 7 the agreement is all about, so it would be more of an informational or background discussion. She would prefer to have a workshop and would prefer to have it sooner rather than later. Duckstad concurred with Mr. Neal's suggestion that any proposed resolution be examined by our City Attorney. He thought the resolution proposed at the Open Forum tonight may in some ways collide with the terms of our final agreement, and he did not want to adopt a collateral resolution that change in any way the terms of the 2002 final agreement. Nelson thought a workshop is a good idea. She supports the 2002 agreement and she didn't think we should be in opposition to it. The question for her is, are we changing our level of support. She thought if we are neutral as we have always been, we need to make a statement that we are neutral and we don't intend to urge the expansion of the airport. She thought there are enough questions in the eye of the public that we are not remaining neutral. Duckstad had no objection but wondered if there was any feeling that we should refer it to the Flying Cloud Advisory Commission for their study, evaluation and recommendation. Young had no objection to a public discussion by the City Council on this matter; however, he has some reservation that the people engaged in the public debate will be comfortable with anything short of a level of commitment against the airport that he was not inclined to do. He thought some of the public anxiety has resulted from some unfortunate and malicious public comments made by some individuals. He thought it would be fine to talk about it; however, if people perceive that bringing sewer and water into the airport is in contravention of what our policy has been, he did not think they will be satisfied. He said he does not support the proposed resolution, and he will answer specific questions about the airport but won't support generalities that would be subject to different interpretations. A discussion followed regarding the date for the workshop. The consensus was to meet at 5:00 p.m. on June 5. B. REPORT OF CITY MANAGER 1. 2006 Comprehensive Annual Financial Report(CAFR) Neal introduced Sue Kotchevar, City Finance Manager, and William Lauer, Principal in the firm of Malloy Montague, Karnowski, Radosevich, & Co., P.A. Mr. Lauer noted the Council Members received three documents as a result of the audit: the Comprehensive Annual Financial Report, a Special Purpose Audit Report and a Management Report which is their executive summary of the audit results. He reviewed his firm's role as auditor of the City's CITY COUNCIL MINUTES May 15, 2007 Page 8 financial statements, noting they found the City's financial records and documents to be in excellent condition. Lauer reviewed the information in the Management Report regarding the governmental fund operations. He commended the Council for the decision to transfer$3,200,000 at the end of the year to set up an internal service fund to set aside funds for the long-term vacation and sick leave liability. MOTION: Aho moved, seconded by Nelson, to accept the 2006 Comprehensive Annual Financial Report. Motion carried 5-0. 2. Follow-Up Memo on Helicopter Procedures at Flying Cloud Airport Neal distributed a follow-up memo on helicopter procedures at Flying Cloud Airport after we requested the flight paths be moved. He said the revised and clarified airport letter will go out to our legislators tomorrow. 3. Transportation Bill in Legislature He said the Governor vetoed the transportation bill today. There were two line items of interest to us: there was $500,000 to fund the Environmental Impact Statement(EIS) for the Southwest LRT project; and an increase in municipal state aid that would provide an additional $500,000 per year for our local roads. He said there will be a transportation bill at some point this year. C. REPORT OF COMMUNITY DEVELOPMENT DIRECTOR D. REPORT OF PARKS AND RECREATION DIRECTOR 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 MOTION: Butcher moved, seconded by Aho, to adjourn the meeting. Motion carried 5- 0. Mayor Young adjourned the meeting at 8:17 p.m. CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar June 5, 2007 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: VIII.A. Christy Weigel, Police/ Clerk's License Application List Community Investigations Unit These licenses have been approved by the department heads responsible for the licensed activity. Amendment to Liquor License 2AM Closing Permit- Renewal Eden Prairie Jakes Inc. DBA: Jake's City Grille Redstone American Grill Inc DBA: Redstone American Grill Champps Operating Corporation DBA: Champps Americana - 1 - CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar June 5, 2007 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: VIII.B. Randy L. Slick Final Plat Approval of Bluff Country Public Works/Engineering Village 2nd Addition Requested Action Move to: Adopt the resolution approving the final plat of Bluff Country Village 2nd Addition. Synopsis This proposal is for the plat located north of Pioneer Trail and west of Hennepin Town Road. The plat consists of 5.8 acres to be divided into two retail lots and one outlot. This is a replat of Lot 1, Block 1 and Outlot B, Bluff Country Village. Background Information The preliminary plat was approved by the City Council on February 20, 2007. Second reading of the Rezoning Ordinance and final approval of the Developer's Agreement was completed on May 15, 2007. Approval of the final plat is subject to the following conditions: • Receipt of engineering fee in the amount of$754. • Receipt of street lighting fee in the amount of$801.90. • Prior to the release of the final plat, Developer shall provide to the City a current title insurance policy. • Satisfaction of bonding requirements for the installation of public improvements. • The requirements as set forth in the Developer's Agreement. • Provide a list of areas (to the nearest square foot) of all lots, outlots and road right-of- ways certified by surveyor. • Prior to release of final plat, Developer shall provide a cross access easement and Maintenance Agreement between Lots 1 and 2 and Outlot A. • Prior to release of the final plat, Developer shall record and provide proof of filing the Development Agreement at the County Recorder and/or Registrar of Titles. • Revision to plat shall include standard boundary drainage and utility easements along all property lines. Attachments • Resolution • Drawing of final plat CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO. 07- A RESOLUTION APPROVING FINAL PLAT OF BLUFF COUNTRY VILLAGE 2ND ADDITION WHEREAS, the plat of Bluff Country Village 2nd Addition has been submitted in a manner required for platting land under the Eden Prairie Ordinance Code and under Chapter 462 of the Minnesota Statutes and all proceedings have been duly had thereunder, and WHEREAS, said plat is in all respects consistent with the City plan and the regulations and requirements of the laws of the State of Minnesota and ordinances of the City of Eden Prairie. NOW, THEREFORE,BE IT RESOLVED by the Eden Prairie City Council: A. Plat approval request for Bluff Country Village 2nd Addition is approved upon compliance with the recommendation of the City Engineer's report on this plat dated June 5, 2007. B. That the City Clerk is hereby directed to supply a certified copy of this resolution to the owners and subdivision of the above named plat. C. That the Mayor and City Manager are hereby authorized to execute the certificate of approval on behalf of the City Council upon compliance with the foregoing provisions. ADOPTED by the Eden Prairie City Council on June 5, 2007. Phil Young,Mayor ATTEST: SEAL Kathleen Porta, City Clerk IA t 4.0 =w; o 52 a�zm M >� FI A° = t 'c" 1"° FF°` 0 ”: tea$ c - Qm_ if I-1 °voSa3&o n - A mom is `F,— . m zoo3cE O R ^ �m -e ° H 2v- c o -, `oYm c m V oyEo°Nh'o$ m ` oe s W 4, W.'8: 2W � a� 1t1 & () 1 _ _ ° °Q 11 ;fib pew & ` € :i.- o`° oc b. H 3 3 u °,1,A o &O °Z° s= =oz o �`1 &odd o it °� " of e` ii, : ALa° ( el i_ , am6t°L ¢ ° ao °v aad n_ o� c tbo ` ° oYa � � z onopaE E a °a1` °` Sc2b1_ ,2 °i$ _ _ cO _ ° _ H O` `� iavo No lbw! ,, _ 0"3 ° + ¢ s _ " F.00i ntto=h 0 no; - LoDamVa°i ,,s _oma°° 0,%, ,e,,e0 ` u)'0i g^-1F+_ um cii ` Zti . LA / N N- \ N, \ \ \ \ \ )\\ \ N- \\ \ . . .1 \\ \ I \ \ \ \ Si1 -� I \ \\ \\ \ � 8'1I \ \ \ \ \_ _ _ \,. . ''' / 1 �o a-se LJ =:8$ s \ z�aaava z�3�a ..... �pti ,,, \\ (PBOk!umol.tl x)PgoH�P3 °°a ���'� oavd Po-$e: ' \, - 1— ■ ■ ■ ■ ■ _ O °, w I s , - — T ,_eses- ,____� ,.� rc iP� __g. --,; .PYsxe Pi PPP i / --''' PLF 13 II I CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar June 5, 2007 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: VIII.C. Randy L. Slick Final Plat Approval of Dell Station Public Works/Engineering Requested Action Move to: Adopt the resolution approving the final plat of Dell Station. Synopsis This proposal is for the plat located east of Dell Road and south of Linwood Court. The plat consists of 3.66 acres to be divided into two lots. Lot 2 is the location of Eden Prairie Fire Station No. 4 and Lot 1 will be developed as a Neighborhood Commercial site. This plat is a replat of Outlot H, Hawthorne of Eden Prairie, except parcel 211B, Minnesota Department of Transportation Right-of-way plat No. 27-157. Background Information The preliminary plat was approved by the City Council on July 5, 2005. Second reading of the Ordinance for Planned Unit Development District Review with waivers, and Zoning District Amendment was also completed on July 5, 2005. The resolution includes a variance to City Code 12.20 Subd.2.A waiving the requirement for final plat approval within six months of preliminary plat approval. Approval of the final plat is subject to the following conditions: • Provide a list of areas (to the nearest square foot) of all lots, outlots and road right-of- ways certified by surveyor. • Revision to plat shall include standard perimeter drainage and utility easements on Lots 1 and 2. Attachments • Resolution • Drawing of final plat CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 07- A RESOLUTION APPROVING FINAL PLAT OF DELL STATION WHEREAS, the plat of Dell Station has been submitted in a manner required for platting land under the Eden Prairie Ordinance Code and under Chapter 462 of the Minnesota Statutes and all proceedings have been duly had thereunder; and WHEREAS, said plat is in all respects consistent with the City plan and the regulations and requirements of the laws of the State of Minnesota and ordinances of the City of Eden Prairie. NOW, THEREFORE, BE IT RESOLVED by the Eden Prairie City Council: A. Plat approval request for Dell Station is approved upon compliance with the recommendation of the City Engineer's report on this plat dated B. Variance is herein granted from City Code 12.20 Subd. 2.A. waiving the six- month maximum time lapse between the approval date of the preliminary plat and filing of the final plat as described in said engineer's report. C. That the City Clerk is hereby directed to supply a certified copy of this resolution to the owners and subdivision of the above named plat. D. That the Mayor and City Manager are hereby authorized to execute the certificate of approval on behalf of the City Council upon compliance with the foregoing provisions. ADOPTED by the Eden Prairie City Council on June 5, 2007. Phil Young, Mayor ATTEST: SEAL Kathleen Porta, City Clerk DELL STATION C.R. ©OC. NO. !v„ r--c; �� j} 4 j�� A f�r- r LJ'v�,u'�r I hereby certify that a hone surveyed and platted the land described an this plot os DELL STATION: that !\ 1i �'" thiS lot is a Carrell re ranenttatida of said surrey, re car[ 1. `- \r/` p P vey,that all distances o correctly shown on said plot in t_�,�r`+-i- �,lJ feet are hundredths at a foot; that oN monuments have been correctly placed in the ground as shown on V\ r �_ — — — _` �z said plot or will be placed as required by the ere c no and;; that the designated boundary lines ore _— correctly designated en said plat:and that there are no public Highways to be designated cn the plot. r nvl Cr1�, A -•,•:�+�1'' CrO` ,, ` \ D.Daniel Tharp.Land surveyor \ '! 1 Minnesota License t6321�- K CEP TON i ' S , ` / X 6, 224.IX7 1110 —1 S)r —.] g55 N62'E°32 E uN[ W 1 I �z6'E \ -(Ofc'(F STAB OF MENNES6TA `.4, =0j . anro �._ COUNTY OF 4h;L,O m l p 0 N In i t _� ,\ s..5 e 2 1 t , i • P/ The foregoing surveyor's certificate'.Os acknowledged before not this day of 'd_ A , C i ram, - \---, I 20G____.by D.Daniel Tharp,Lend Surveyor Minnesota License 16321. • - yL_ 1 n dSn —.—� _-- 1`;; os.aaa tan a i L.�, Notary Publk, County,Minnesota - 'r i F, dntlrvGE=Sca"'Ear.. °F' ._ My commission erplres-- Si lr,• .I ...tt ,i - t,l ,,' frI `f ___ la • i ,yiE J, ct `p __ - - �- O �i i .„ („7-.. .r xs5.,.r _ ___ EDEN PftF€RIE,M4NNESOTA ,_v \fi BLOCK 1 �S'^ +yr 3his plot a€DELL STATlOtd w s aperaved and accepted by the City Council of Eden Prairie,Minnesota of a 1 j • ��, L. --- regular meeting thereof held thisCoy et___ _ 200____ if applicable,the 1 F,a - - p. written comments and recommendations of the Commissioner at I capeartatian one the County tfignway Sea feet �v- --vt , Engineer have been received by the City Sr the prescrvbed PC day pentad has elapsed without receipt of .2 _ soon comments and recommendations,as v;ded by Minnesota Statutes,Section 505.43,Setd.2. 0 5f) 100 150 __ -;fL,F 2 F- CITY COUNCILS EDEN PRAIRIE,MiNit£SOTA a ! y ty , _ _ By ,Mayor ',,I L1 H It i.{ it r By ____—__City Manager THE BASES OF BEAR±NGS IS ASSUMED , --�/n_v vI _ /-1i L_ 5:3i7 il OT a DENOTES I/2 WO,Bs`15 INCH Ecent EFONtJMENT SET AND MARKED 'J WT,DI rIwE Sy R.E.S. Na_icy21 / f fd88'23'5a"W PENS-TES MnOat MONUMENT FOUND AS SHOAT,ow { 223,S6 Mn©0T C.O,,PLAN Nu 27-1e7 Cud a — — __1 aw' TAXPAYER SERVICES DEPARTMENT.HENNEPEN COUNTY.MENtIE507A YI hereby certify that taxes payable e _—v 200 and prior years hove been paid far the land described en y; ' r r 6s A P, C. 3 f'r i r+A , ; !.p — l this plot. Dated this day of ,20G - • r� __y-.. NO. f_;-— J 1 f ; Patrick H.O'Connor,Hennepin County Auditor By —__— Deputy KNOW ALL MEN BY THESE PRESENTS: That the City at Eden Prairie.a Minnesota municipal corporation, fee owner of the following described property situated in the County of Hennepin,State o:Minnesota to wit: STATE OF MENNESOTA Cnn.ot Hi,Hawthorne of Eden Prairie.Hennepin County,Minnesatc: COUNTY OF St1AVEY DIVISION,HENNEPIN COUNTY.MENNES°TA EXCEPT The f«ego>ng instrument was acknowledged before me this____day of Parsvant lb Minn.Statutes.Section 3839.565(1965).this plat has been approved this__day ,2017W.......by _,Mayor and by of 200 Parch 2118,Minnesota Department of Transportation Right of Way Plot Na. 27-157. ------- - _,City Manager of the City of Eden Prairie,a Vinnescto municpol ------- corporation,on beha€t of said....motion. • 551tem P.Brawn,Hennepin County Surveyor Hos ceased the sarne to be surveyed and Wafted os DELL STATTON end does hereby Conte and dedicate Notary Public,- County,Minnesota to tt'he pubic for public use tarever the eoseanente Ear drainage end utility purposes as shown on this My commission expires- By----------- pin • In witness whereof said City of Eden Prairie.a Minnesota municipal corporation,hos caused these presents tc be signed by_ ,its Mayor.and its City Manager this day of COUNTY RECORDER,HEiNrNEPiN COUNTY,MINNESOTA 20p___ I hereby certify thet the within plot at DELL STATION was fled for record in this office this day of_ ,20O .at— —o'clock___.M. Signed: CITY OF EDEN SRA€RIE Michael Conniff.County Recorder Mo ' By Deputy 1.1 Hansen Thorp City Manager - ,�/ Pellinen Olson Inc. _/ Engineers•S rveya,a•Landscape Kcel:ecis CITY COUNCIL AGENDA DATE: SECTION: June 5, 2007 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO: VIII.D. Office of City Manager Retirement Enhancement Benefits Program Karen Kurt, Human Resources Manager Requested Action Move to: Adopt Resolution approving the City of Eden Prairie participation in Retirement Enhancement Benefits Program(REBA) and authorize the Mayor and City Manager to execute REBA plan documents. Synopsis For the 2007/08 benefit year, the City introduced a high deductible insurance plan combined with a Health Reimbursement Arrangement(HRA) as a health insurance plan choice for employees. In essence, employees who enroll in the lower-cost high deductible insurance plan also receive a monthly contribution from the City to an individual savings account, or HRA. Employees can draw from the HRA to pay for qualified medical expenses. This new option falls within the category of"consumer-driven"healthcare and gives employees an opportunity to save money when they make wise lifestyle and health care choices. Approximately 70% of the City's benefit-eligible employees elected the new plan. Our high participation should have a positive impact on health insurance increases in upcoming years. The City will coordinate the HRA through Retirement Enhancements and Benefits Alternatives (REBA). REBA is a 501(c)(9)trust made up of public employers. This group uses its collective volume to negotiate lower prices for HRA administration. Though the arrangement with REBA, the third party administrator will be America's VEBA Solutions (AVS) and HRA funds will be held US Bank. Attachments Resolution Joint Powers Agreement Plan Documents and Authorizations CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2007 - A RESOLUTION AUTHORIZING PARTICIPATION IN THE RETIREMENT ENHANCEMENT AND BENEFITS ALTERNATIVE (REBA) PROGRAM AND ADOPTION OF THE REBA PLAN AND TRUST The undersigned, constituting the Mayor and City Manager of the City of Eden Prairie (the "City"), a Minnesota governmental entity, do hereby adopt the following resolutions in writing, pursuant to applicable Minnesota law. WHEREAS, certain governmental units have come together to form the Retirement Enhancement and Benefit Alternatives Program ("REBA") for the purpose of jointly providing certain health benefits to their employees, former employees and spouses and dependents thereof; and WHEREAS, REBA is governed by an advisory council (the "Advisory Council") consisting of a representative from each member of REBA and the Advisory Council is governed by the Bylaws of the Retirement Enhancement and Benefit Alternatives Program Advisory Council, as amended from time to time; and WHEREAS, REBA sponsors the Retirement Enhancement and Benefit Alternatives Program Voluntary Employees' Beneficiary Association Plan (the "Plan"); and WHEREAS, REBA sponsors the Retirement Enhancement and Benefit Alternatives Program Voluntary Employees' Beneficiary Association Trust(the "Trust"); and WHEREAS, the City originally adopted the Plan and the Trust effective June 1, 2007; and WHEREAS, because of its adoption of the Plan and the Trust, the City is a member of REBA and has the right to be represented on the Advisory Council; and WHEREAS, REBA is a joint powers arrangement pursuant to Minn. Stat. § 471.59, as reflected by the Joint Powers Agreement for Retirement Enhancement and Benefit Alternatives Program(the "Joint Powers Agreement"), which is attached hereto as Exhibit A; and WHEREAS, the City wishes to ratify and reconfirm its participation in REBA and to acknowledge REBA as a joint powers arrangement by entering into the Joint Powers Agreement. NOW, THEREFORE, BE IT RESOLVED, that the City ratifies and reconfirms the participation of the City in REBA effective June 1, 2007. BE IT FURTHER RESOLVED, that the City ratifies and reconfirms the adoption of the Plan and the Trust, as amended from time to time, effective June 1, 2007. 1 BE IT FURTHER RESOLVED, that the City hereby authorizes the City to enter into the Joint Powers Agreement and directs the Mayor and City Manager to execute said Agreement on behalf of the City. BE IT FURTHER RESOLVED, that the City hereby appoints the Human Resources Manager to serve as the City's representative to the Advisory Council. BE IT FURTHER RESOLVED, that the City hereby authorizes the adoption of the Trust Account Access and Reporting Authorization; Benefit Plan Fee Disclosure and Authorization; Authorized Signature Form; Retirement Enhancement and Benefit Alternatives Voluntary Employees' Beneficiary Association Basic Plan Adoption Agreement for City of Eden Prairie; REBA Member Administration Agreement; and such other documents as contemplated thereby and directs the Mayor and/or City Manager as appropriate to execute said documents on behalf of the City . ADOPTED by the Eden Prairie City Council this 5th day of June, 2007. Phil Young, Mayor ATTEST: (Seal) Kathleen Porta, City Clerk 2 EXHIBIT A Joint Powers Agreement for Retirement Enhancement and Benefit Alternatives Program 3 JOINT POWERS AGREEMENT FOR RETIREMENT ENHANCEMENT AND BENEFIT ALTERNATIVES PROGRAM © HaynesHitesman, PC 2005 REBA Joint Powers Agmt TABLE OF CONTENTS 1. PURPOSE, INTENT AND OBJECTIVE 1 2. DEFINITIONS 2 3. JOINT POWERS GOVERNING BOARD 3 4. RIGHTS AND RESPONSIBILITIES OF THE ADVISORY COUNCIL 4 5. RIGHTS AND RESPONSIBILITIES OF ADOPTING EMPLOYERS 5 6. CONTRIBUTIONS &ASSESSMENTS 6 7. LENGTH OF AGREEMENT AND TERMINATION 6 8. LIABILITY OF PARTIES 6 9. AGREEMENT BY PARTICIPATION 6 10. DISPOSITION UPON DISSOLUTION 7 © HaynesHitesman, PC i 2005 REBA Joint Powers Agmt JOINT POWERS AGREEMENT FOR RETIREMENT ENHANCEMENT AND BENEFIT ALTERNATIVES PROGRAM This Joint Powers Agreement ("Agreement") is made by and among the Adopting Employers that are now or may hereafter become parties to this Agreement. RECITALS WHEREAS, governmental units may provide health benefits to employees, former employees and spouses and dependents thereof; and WHEREAS, Minn. Stat. § 471.59, subds. 1 and 10 authorize two or more governmental units to exercise jointly or cooperatively powers which they possess in common; and WHEREAS, certain governmental units ("Adopting Employers") wish to authorize the Retirement Enhancement and Benefit Alternatives Program ("REBA") to act as a joint powers entity for the purpose of exercising certain powers as set forth in this Agreement; and WHEREAS, the Adopting Employers acknowledge REBA as a representative of the parties to this Agreement; and WHEREAS, REBA sponsors the Retirement Enhancement and Benefit Alternatives Program Voluntary Employees' Beneficiary Association Plan (the"Plan"); and WHEREAS, REBA sponsors the Retirement Enhancement and Benefit Alternatives Program Voluntary Employees' Beneficiary Association Trust and the Retirement Enhancement Benefit and Alternatives Program Voluntary Employees' Beneficiary Association Trust II (collectively referred to as the "Trusts"); and WHEREAS, the Trusts are voluntary employee beneficiary associations under Section 501(c)(9) of the Internal Revenue Code; NOW THEREFORE in consideration of the mutual promises and agreements contained herein and subject to the provisions of Minn. Stat. § 471.59 and all other applicable statutes, rules and regulations, the parties agree as follows: 1. PURPOSE, INTENT AND OBJECTIVE 1.1 Purpose. Under the provisions of Minnesota law, governmental units may enter into contracts for the purposes of providing medical benefits to current employees, former employees, and their respective families including, but not limited to, contracts for services deemed necessary or beneficial for their operation. Under the provisions of Minn. Stat. § 471.59, two or more governmental units (including, but not limited to, school districts, counties, towns, other governmental agencies, and service cooperatives) may agree to exercise jointly or cooperatively powers which they possess in common. The purpose of this Agreement is to authorize the exercise of common powers of the Adopting Employers in connection with certain matters pertaining to the administration and funding of the Plan and Trusts, all as described herein. ©HaynesHitesman, PC 1 2005 REBA Joint Powers Agmt 1.2 Name. The name of this joint powers entity shall be the Retirement Enhancement and Benefit Alternatives Program ("REBA"). 1.3 Compliance with Applicable. Laws. It is the Adopting Employers' intent to comply with applicable federal and state statutory requirements. 1.4 Effective Date. This Agreement shall be effective with respect to a particular Adopting Employer as of the date of such Adopting Employer's initial participation as identified below. 2. DEFINITIONS The following Definitions shall apply to this Agreement: a) Administrative Services Agreement ("ASA") means an agreement by and between the Advisory Council and a Provider, or an Adopting Employer and a Provider, that establishes terms for the administration of the Plan and/or Trusts. b) Adopting Employer means a governmental unit that has adopted the Plan, thereby becoming a member of REBA. c) Advisory Council means the advisory council of the REBA, acting as the joint board authorized to exercise certain powers of the Adopting Employers, as permitted by Minn. Stat. § 471.59, subd. 2, and as set forth in this Agreement. d) Agreement means this Joint Powers Agreement as the same may be amended from time to time. This document, and all other documents in the same form executed (or deemed executed as provided in Section 9 of this Agreement) by Adopting Employers, all as amended from time to time, shall together constitute a single Agreement. e) Bylaws means the bylaws of the Advisory Council. f) Code means the Internal Revenue Code of 1986, as amended from time to time. g) Plan means Retirement Enhancement and Benefit Alternatives Program Voluntary Employees' Beneficiary Association Plan. h) Provider means a service provider, including, but not limited to, third party administrators, consultants, accountants, brokers, attorney and trustees, providing services to health plans and trusts such as the Plan and Trusts. i) REBA means the Retirement Enhancement and Benefit Alternatives Program, the joint powers entity created by the Adopting Employers as reflected in this Agreement. j) Trusts mean the Retirement Enhancement and Benefit Alternatives Program Voluntary Employees' Beneficiary Association Trust and the Retirement Enhancement and Benefit ©HaynesHitesman, PC 2 2005 REBA Joint Powers Agmt Alternatives Program Voluntary Employees' Beneficiary Association Trust II. Each is intended to be a voluntary employees' beneficiary association as described § 501(c)(9) of the Code. 3. JOINT POWERS GOVERNING BOARD 3.1 Membership. Membership in REBA shall be open to any governmental unit or other political subdivision as set forth in Minn. Stat. § 471.59, subd. 1, and Minn. Stat. § 471.981 including, but not limited to, joint powers agencies of the State of Minnesota that are deemed by the Advisory Council to qualify for membership. The Advisory Council may impose such conditions on membership as it deems appropriate to protect the interest of REBA and to provide for the benefit of the Adopting Employer; and such conditions as are required by the Agreement, the Bylaws, or by applicable statutes, rules, or regulations. The Advisory Council, at its discretion and in accordance with the Bylaws, may create classes, levels or types of membership within REBA with differing member rights, privileges or obligations. Upon adoption of the Plan, an Adopting Employer shall also execute this Agreement and file it with the Advisory Council. 3.2 Joint Powers Board. There is hereby created a joint powers board, herein referred to as the"Advisory Council,"which shall be empowered to oversee and administer REBA. The Advisory Council shall be empowered to manage all the affairs of REBA and do to all things necessary or convenient for the furtherance of the purposes of REBA, including but not limited to: expending and receiving funds; entering into contracts, leases, and other agreements; renting, leasing, purchasing and otherwise procuring or receiving property real or personal; employing personnel either as employees or by contract; and employing consultants such as attorneys, auditors, accountants, risk managers, actuaries and others. 3.3 Advisory Council Representation. Each member of REBA shall have representation on the Advisory Council equal to every other member. Subject to the foregoing, representation shall be determined pursuant to the Bylaws. The Advisory Council shall act by majority vote of the representatives appointed to it. As appropriate, the Advisory Council may designate one or more representatives to act on its behalf. 3.4 Committee(s). The Advisory Council may, but is not required to, establish one or more committees. The purpose of any such committee may include, without limitation, the management of the affairs of REBA and the receipt and processing of information relating to Plan and Trusts. 3.5 Upon Dissolution of REBA. In the event that REBA is dissolved, the Advisory Council shall continue to exist for a reasonable period to wind up REBA's affairs. Any administrative services provided to the Plan or Trusts prior to the dissolution of REBA shall be provided thereafter as determined by the Advisory Council in its discretion. ©HaynesHitesman, PC 3 2005 REBA Joint Powers Agmt 4. RIGHTS AND RESPONSIBILITIES OF THE ADVISORY COUNCIL 4.1 Authorized Powers. Pursuant to Minn. Stat. § 471.59, subd. 2, in addition to any other powers specifically delegated to the Advisory Council by this Agreement, the Advisory Council is hereby authorized to: a) establish, procure, and administer the Plan and the Trusts; b) define and clarify requests for proposals, rights and responsibilities, length of contract, premium or contribution rates and other costs, termination guidelines, the relative liability of the parties, and the method(s) by which parties to this Agreement shall exercise their common powers; and c) receive, collect, hold, invest, expend and disburse contributions to the Trusts in connection with the exercise of its powers under this Agreement; and d) adopt Bylaws, which shall provide for the operation and administration of the Advisory Council, and adopt other operating policies and procedures to direct and document the specific activities of REBA. 4.2 Reserves. The Advisory Council shall from time to time determine the minimum amount of funds needed for purposes of risk management, administration, and other needs of the Plan and Trusts. Any such funds shall be held and used in accordance with, and subject to the limitations set forth in, Section 6. 4.3 Administrative Services Agreements. The Advisory Council may negotiate one or more Administrative Services Agreements for the benefit of REBA with respect to the Plan and the Trusts. Such Administrative Services Agreements may establish, among other things: a) the applicable responsibilities of the Provider; b) the applicable responsibilities of the Advisory Council; and c) the amount of service fees payable to the Provider. 4.4 Liability Limited. The Advisory Council, its authorized representatives, employees and designees shall have no duty or liability due to negligence of Adopting Employers or Providers. When it is not exercising the joint powers authorized by this Agreement (and therefore not acting as the Advisory Council), the Advisory Council shall have no duty or obligation whatsoever to act for the benefit of the Adopting Employers. ©HaynesHitesman, PC 4 2005 REBA Joint Powers Agmt 5. RIGHTS AND RESPONSIBILITIES OF ADOPTING EMPLOYERS 5.1 Adopting Employers to Furnish Data. Each Adopting Employer agrees to furnish all reasonably necessary data to the Advisory Council, or Provider or other third party as directed by the Advisory Council. 5.2 Remittance of Contributions and Fees. The Adopting Employers shall remit contributions and/or administrative fees in the time and manner as set forth in the Plan, the Trusts, and/or the Administrative Services Agreements. 5.3 COBRA Administration. To the extent an Adopting Employer is, through the Public Health Services Act, subject to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"), such Adopting Employer shall be responsible for complying with the requirements of COBRA with respect to their employees participating in the Plan. Such responsibility shall include all aspects of administering the continuation coverage required by COBRA including, but not limited to, providing notices required by COBRA. The Advisory Council, as the "plan administrator" of the Plan, has delegated its responsibilities under COBRA to the Adopting Employers. 5.4 Adopting Employer Withdrawal. An Adopting Employer's participation in this Agreement may be terminated as follows: 5.4.1 Voluntary Withdrawal. At any time during a year, an Adopting Employer may terminate its participation in this Agreement upon ninety (90) days written notice to the Advisory Council and to all Providers. 5.4.2 Deemed Withdrawal. An Adopting Employer shall be deemed to have terminated its participation in this Agreement upon withdrawal from the Plan and the Trusts. 5.3.3 Involuntary Withdrawal. The Advisory Council may terminate an Adopting Employer's participation in this Agreement for cause upon ninety (90) days notice to said Adopting Employer. 5.5 Effect of Adopting Employer Withdrawal. Upon an Adopting Employer's withdrawal from this Agreement, the following rules shall apply: 5.5.1 Withdrawal from the Plan and Trust. Upon withdrawal from this Agreement, an Adopting Employer shall be deemed to have withdrawn from the Plan and Trusts. 5.5.2 Continuance of REBA. The withdrawal of an Adopting Employer shall not affect the continuance of REBA by the remaining Adopting Employers. 5.5.3 Liability of Withdrawing Adopting Employer. An Adopting Employer that withdraws shall remain jointly and severally liable for all debts, obligations and liabilities incurred on its behalf during the term of its membership. The liability of an Adopting Employer upon withdrawal shall be determined in accordance with the Bylaws, Plan, Trusts and/or Administrative Services Agreements. ©HaynesHitesman, PC 5 2005 REBA Joint Powers Agmt 6. CONTRIBUTIONS &ASSESSMENTS 6.1 Contributions. Adopting Employers shall make contributions as required under the Plan. All contributions shall be held in the Trusts. 6.2 Assessments. The Advisory Council may, at its discretion, determine that an assessment is necessary to insure the financial integrity of the Plan and/or the Trusts, to operate and maintain the Plan and/or the Trusts, or to carry out other purposes of REBA pursuant to this Agreement. Such assessments shall be in a form, manner and amount as determined by the Advisory Council, provided that an assessment against an Adopting Employer shall not exceed $7,500 for any calendar year. Notwithstanding the foregoing, no Adopting Employer shall be required to make, or otherwise be responsible for, a contribution to the Plan and the Trust on behalf of another Adopting Employer if such Adopting Employer fails to make a contribution required by the Plan. The Advisory Council may, in its discretion, establish and maintain separate accounts for specified portions of the assessment, and may designate specific purposes. 7. LENGTH OF AGREEMENT AND TERMINATION This Agreement shall remain in effect until the first of the following to occur: a) The Agreement terminates by the mutual consent of the parties to the Agreement; b) The Agreement is suspended or superseded by a subsequent agreement between the parties to the Agreement, or c) The Agreement terminates by operation of law. 8. LIABILITY OF PARTIES An Adopting Employer to this Agreement holds the Advisory Council and its members harmless from any and all causes of action arising at law or inequity unless such action shall arise from gross negligence. The parties agree to waive any rights to litigation from any dispute arising out of this Agreement unless such action is the result of intentional wrongdoing. 9. AGREEMENT BY PARTICIPATION Any governmental unit that adopts the Plan, and thereby becomes an Adopting Employer, shall be deemed to have approved this Agreement and, in the case of an eligible governmental unit, to have executed this Agreement by its duly authorized officers, and shall be bound by the terms and conditions of this Agreement to the same extent as if such formal approval had been obtained and such execution had occurred. ©HaynesHitesman, PC 6 2005 REBA Joint Powers Agmt 10. DISPOSITION UPON DISSOLUTION In the event that REBA is dissolved, any property or other assets acquired by the Advisory Council shall be distributed as determined by the Advisory Council and as permitted under applicable law. Sufficient reserves shall be retained and maintained consistent with the Plan's obligations and known or foreseeable risks under this Agreement and applicable laws or regulations. Pursuant to all applicable state and federal laws, this Agreement has been approved by the governing boards of the parties and is signed by the duly authorized officers of the parties. ADOPTING EMPLOYER Name of Governmental Unit By By Title Title Date Date Date of Initial Participation ©HaynesHitesman, PC 7 2005 REBA Joint Powers Agmt AUTHORIZED SIGNATURE FORM Trust Name: City of Eden Prairie VEBA Health Savings Trust(the"Trust") Plan Administrator: City of Eden Prairie In accordance with the provisions of the above referenced Trust, the following people are authorized on behalf of the Plan Administrator to direct U.S. Bank, N.A. to take action with regard to this Trust and hereby authorize and direct U.S. Bank, N.A. to act on directives signed by: Check boxes that apply for each person Legal Documents/ Participant Related Investment Direction Transaction Activity Name: k ,/4/evAv,a,,., ❑ Title: ��v,.,a 2e<���u< 1�e(.1,.,ci ce- Signature: attRiln,i/iiii..11 Name: /`e;t,-c.. kv- ] Title: a„ its 's Aa.,a5 .cr Signature: Name: 1-72 Title: f`irxa u_Yrde-- A..a C Signature: AM" Name: S�O H /l/e I Title: G, /4-)a cr Signature: Authorized by: I hereby acknowledge and represent that I am authorized on behalf of the Plan Administrator to provide this authorized signature form to U.S. Bank,N.A. This form shall remain in effect until it is changed or revoked in writing by the Plan Administrator. Any change or revocation of this form shall be effective upon U.S. Bank's receipt of such written notice. Name: Signature: Title : Date Signed: Return original form to America's VEBA Solution. USB Internal only:Retain original in account legal file. AMERICA'S VEBA SOLUTION AMENDED AND RESTATED RETIREMENT ENHANCEMENT AND BENEFIT ALTERNATIVES VOLUNTARY EMPLOYEES' BENEFICIARY ASSOCIATION PLAN BASIC PLAN DOCUMENT Effective July 1, 2006 © HaynesHitesman, PC 2006 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 TABLE OF CONTENTS ARTICLE I. INTRODUCTION 1 ARTICLE II. DEFINITIONS 2 ARTICLE III. ADOPTING EMPLOYER 5 ARTICLE IV. ELIGIBILITY AND PARTICIPATION OF EMPLOYEES 6 ARTICLE V. BENEFITS UNDER THE PLAN 8 ARTICLE VI. CONTRIBUTIONS 11 ARTICLE VII. CLAIMS DETERMINATIONS AND REVIEW OF DENIED CLAIM 12 ARTICLE VIII. HIPAA PRIVACY AND SECURITY PROVISIONS 16 ARTICLE IX. PLAN ADMINISTRATION 20 ARTICLE X. PLAN AMENDMENT AND TERMINATION 23 ARTICLE XI. GENERAL PROVISIONS 24 ARTICLE XII. COBRA CONTINUATION 26 ©HaynesHitesman, PC 2006 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 ARTICLE I. INTRODUCTION 1.1 Establishment. The Sponsor established the Retirement Enhancement and Benefit Alternatives Program to provide economies of scale through the commingling of assets, and to provide the public employers with a cost effective vehicle through which to offer benefits to public employees. 1.2 Adoption. An executed Adoption Agreement plus this Basic Plan Document constitute the"Plan" for an Adopting Employer. The effective date of the Adopting Employer's Adoption Agreement is set forth in the Adoption Agreement. 1.3 Purpose. The purpose of the Plan is to provide certain Employees with an opportunity to receive reimbursement for certain Health Care Expenses as provided in this Plan. It is the intention of the Adopting Employer that the benefits provided and payable under this Plan be eligible for exclusion from the gross income of Participants as provided by Sections 105(b) and 106 of the Code. In addition, it is the intention of the Adopting Employer that the Plan qualify as a Health Reimbursement Arrangement ("HRA") under IRS Revenue Ruling 2002-41 (June 26, 2002) and IRS Notice 2002-45 (June 26, 2002). 1.4 HIPAA Privacy and Security Rules. This Plan is a "covered entity"for purposes of the Privacy Rules and Security Rules as described in greater detail in Article VIII below. 1.5 Not ERISA Plan. This Plan is not an employee welfare benefit plan for purposes of ERISA. 1.6 Trust. This Plan is intended to be funded through one or more Trusts, reflected in a separate document(s). ©HaynesHitesman, PC 2006 1 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 ARTICLE II. DEFINITIONS The following words and phrases are used in this Plan and shall have the meanings set forth in this Article unless a different meaning is clearly required by the context or is defined within an Article. 2.1 Adopting Employer means a state or political subdivision thereof that adopts this Plan by completing and executing an Adoption Agreement, which may include a joint powers agreement. Each Adopting Employer, by adoption of the Plan, shall become a member of the Retirement Enhancement and Benefit Alternatives Program, a joint powers organization established under Minnesota Statute Section 471.59. 2.2 Adoption Agreement means the separate agreement, or portions thereof, completed and executed by an Adopting Employer setting forth the Adopting Employer's selection of options under the Plan. 2.3 America's VEBA means Genesis Employee Benefits, Inc. d.b.a. America's VEBA Solution, a Minnesota corporation, performing third party administrative services for benefit plans. 2.4 Authorized Representative means, for the claims and appeal procedures, the person entitled to act on behalf of the claimant with respect to a benefit claim or appeal. In order for the Plan to recognize a person as an Authorized Representative, written notification to that affect signed by the claimant and notarized must be received by the Plan. An assignment for purposes of payment is notdesignation of an "Authorized Representative." 2.5 Basic Plan Document means this document, which together with an executed Adoption Agreement constitutes the Plan for an Adopting Employer. 2.6 Code means the Internal Revenue Code of 1986, as amended from time to time. 2.7 Covered Individual means a Participant, Dependent of a Participant and the Spouse of a Participant, and any other person appropriately covered under the Plan. 2.8 Dependent means as defined in the Adoption Agreement. However, Dependent cannot be defined more broadly than"dependent"for purposes of Section 105 of the Code. 2.9 Employee means any person employed by the Adopting Employer on or after the Effective Date, except that it shall not include a self-employed individual as described in Section 401(c) of the Code. All employees who are treated as employed by a single employer under Subsections (b), (c) or (m) of Section 414 of the Code are treated as employed by a single employer for purposes of this Plan. Employee does not include the following: (a) Any employee included within a unit of employees covered by a collective bargaining unit unless such agreement provides, whether specifically or generally, for coverage of the employee under this Plan; (b) Any employee who is a nonresident alien and receives no earned income from the Adopting Employer from sources within the United States; and (c) Any employee who is a leased employee as defined in Section 414(n)(2) of the Code. ©HaynesHitesman, PC 2006 2 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 2.10 ERISA means the Employee Retirement Income Security Act of 1974 and regulations thereunder, as amended from time to time. Plans sponsored by public sector entities are not subject to ERISA. 2.11 Employer Contribution means a nonelective contribution made by the Adopting Employer on behalf of each Participant in the Plan. The Employer Contribution is an amount that has not been actually or constructively received by the Participant, and it is made available to the Participant exclusively for reimbursement under the Plan. 2.12 Entry Date means the date as of which an Employee becomes a Participant in this Plan as set forth in the Adoption Agreement. 2.13 ePHI means PHI maintained or transmitted in electronic media, including, but not limited to, electronic storage media (i.e., hard drives, digital memory medium) and transmission media used to exchange information in electronic storage media (i.e., internet, extranet, and other networks). PHI transmitted via facsimile and telephone is not considered to be transmissions via electronic media. 2.14 HC Account means "health care account" and is the record keeping account established under the Plan for each Participant. 2.15 Health Care Expense means as defined in the Adoption Agreement, provided it cannot be defined no more broadly than the description in IRS Revenue Ruling 2002-41 and IRS Notice 2002-45. Notwithstanding the foregoing, if the Adopting Employer sponsors a cafeteria plan, Health Care Expense shall not include premiums that may be paid on a pre-tax basis in accordance with the terms of such cafeteria plan, which may include premiums for major medical coverage provided by the Employer and premiums for coverage under an insurance contract, health maintenance organization agreement, or other benefit agreement providing coverage issued on a non-group, individual basis. To the extent Health Care Expense is defined in the Adoption Agreement to include premiums for qualified long-term care insurance, the amount of such premium that will qualify as a Health Care Expense shall be limited to the portion that constitutes"eligible long-term care premiums"as defined in Section 213(d)(10) of the Code. 2.16 HIPAA means the Health Insurance Portability and Accountability Act of 1996 and regulations thereunder, as amended from time to time. 2.17 Health Reimbursement Arrangement ("HRA") means an employer funded medical reimbursement program within the meaning of IRS Revenue Ruling 2002-41 (June 26, 2002) and IRS Notice 2002-45 (June 26, 2002). 2.18 Highly Compensated Individual means an individual who is (1) one of the 5 highest paid officers, (2) a shareholder who owns more than 10 percent in value of the stock of the employer, or (3) among the highest paid 25 percent of all Employees, except (1) Employees who have not completed 3 years of service, (2) Employees who have not attained age 25, (3) part-time or seasonal Employees, (4) Employees not included in the plan who are included under a collective bargaining agreement, and (5) Employees who are nonresident aliens and who receive no earned income from a source within the United States. 2.19 Managing Body means the person or persons with authority to make decisions for the Adopting Employer. 2.20 Participant means an Employee who has become and not ceased to be a Participant pursuant to Article IV. In addition, Participant includes persons "deemed" to be Participants under a ©HaynesHitesman, PC 2006 3 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 specific provision of this Plan. 2.21 PHI means health information that: (a) Is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; (b) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and (c) Either identifies the individual or reasonably could be used to identify the individual. 2.22 Plan means the Retirement Enhancement and Benefit Alternatives Voluntary Employees' Beneficiary Association Plan, as amended from time to time. For each Adopting Employer, it consists of a completed Adoption Agreement plus the Basic Plan Document. For each Adopting Employer, the Plan may also be known by the name identified in the Adoption Agreement. 2.23 Plan Administrator means the entity, person or persons determined under Section 9.1. 2.24 Plan Supervisor means America's VEBA, designated by and under contract with the Plan Administrator to perform certain administrative functions, including, but not limited to, claims administration and recordkeeping. 2.25 Plan Year means the twelve (12) month period beginning and ending as indicated in the Adoption Agreement. The initial Plan Year may be a "short" Plan Year beginning and ending as indicated in the Adoption Agreement. The records of the Plan will be kept based upon the Plan Year. 2.26 Privacy Rules means the Standards of Privacy of Individually Identifiable Health Information at 45 C.F.R. part 160 and part 164 at subparts A and E. 2.27 Security Incident means "security incident" as defined in 45 C.F.R. Section 164.304, which generally defines"security incident"to include attempted or successful unauthorized access, use, disclosure, modification, or destruction of ePHI. 2.28 Security Rules means the Security Standards and Implementation Specifications at 45 C.F.R. Part 160 and Part 164, subpart C. 2.29 Sponsor means the Retirement Enhancement and Benefit Alternatives Program. 2.30 Spouse means"Spouse"as defined in the Adoption Agreement. 2.31 Trust means the trust(s) identified in the Adoption Agreement, created for the purpose of accepting and holding Employer Contributions, and limited other contributions, made under the Plan. 2.32 Trustee means the person or persons identified as a "Trustee"under a particular Trust. ©HaynesHitesman, PC 2006 4 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 ARTICLE III. ADOPTING EMPLOYER 3.1 Adoption of Plan. An Adopting Employer may adopt the Plan by resolution duly adopted by its Managing Body, as represented and warranted in the Adoption Agreement, and upon execution of an Adoption Agreement. 3.2 Cessation of Employer Participation. An Adopting Employer may cease to be an Adopting Employer in accordance with Article X. 3.3 Recordkeeping and Reporting. An Adopting Employer shall furnish, or arrange for the furnishing, to the Plan Supervisor the information with respect to each Covered Individual necessary to enable the Plan Supervisor to maintain records sufficient to determine the benefits due to or which may become due and to prepare and provide any reports required by law. ©HaynesHitesman, PC 2006 5 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 ARTICLE IV. ELIGIBILITY AND PARTICIPATION OF EMPLOYEES 4.1 Eligibility Requirements. Each Employee shall be eligible to participate in this Plan upon meeting the eligibility requirements set forth in the Adoption Agreement. 4.2 Participant Status. An Employee who has met the eligibility requirements described in Section 4.1 shall be a Participant as of the Employee's Entry Date. 4.3 Conditions of Participation. As a condition of participation and receipt of benefits under this Plan, the Participant agrees to: (a) Observe all Plan rules and regulations; (b) Consent to inquiries by the Plan Supervisor and Plan Administrator with respect to any provider of services involved in a claim under this Plan; (c) Submit to the Plan Administrator all notifications, reports, bills, and other information required by the Plan or which the Plan Supervisor and Plan Administrator may reasonably require; and (d) Cooperate with all reasonable requests of the Plan Supervisor and Plan Administrator that may by necessary for the proper administration of the Plan. Failure to do so relieves the Plan, Plan Administrator, Plan Supervisor, Adopting Employer, and Sponsor of any obligations under this Plan with respect to that Participant and any others claiming entitlement to benefits under this Plan through that Participant and shall result in the termination of the Participant's participation in the Plan. 4.4 Termination of Contributions. Unless provided otherwise in the Adoption Agreement, a Participant shall cease to be eligible to receive contributions under this Plan at midnight of the earliest of the following dates: (a) The date of the death of the Participant; (b) The date of termination of the Participant's employment with the Adopting Employer; (c) The date of the Participant's failure to meet the eligibility requirements of Section 4.1, as may be amended from time to time in accordance with Article X; or (d) The date of termination of the Plan in accordance with Article X. Termination of contributions under this Plan shall not prevent a former Participant from receiving continuation coverage required by applicable law. 4.5 Termination of Participation. Unless provided otherwise in the Adoption Agreement, a Participant automatically ceases to be a Participant at midnight of the earliest of the following dates: ©HaynesHitesman, PC 2006 6 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 (a) The date of the termination of the Participant's employment with the Adopting Employer; (b) The date of the death of the Participant; (c) The date the balance of the Participant's HC Account reaches zero, if no further contributions will be made to said account under Article VI; or (d) The date of termination of the Plan in accordance with Article X. Termination of participation in this Plan shall not prevent a former Participant from receiving continuation coverage required by applicable law. 4.6 Deemed Participants. For certain purposes, persons that were not Employees are deemed to be Participants as required by law. ©HaynesHitesman, PC 2006 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 ARTICLE V. BENEFITS UNDER THE PLAN 5.1 Health Care ("HC") Account. The HC Account will be credited with the Employer Contribution. A Participant's HC Account will be decreased from time to time in the amount of payments made to the Participant for Health Care Expenses. 5.2 Claims for Reimbursement. Claims for reimbursement under this Plan shall be made by completing a claim form and submitting such form to the Plan Supervisor. The Plan Supervisor is entitled to rely on the information provided on the claim form in processing claims under this Plan. A claim must be submitted for payment within the time period indicated in the Adoption Agreement. Where circumstances beyond the Participant's control prevent submission within the described time frame, notice of a claim with an explanation of the circumstances may be accepted by the Plan Supervisor as a timely filing. Claims shall be determined in accordance with Article VII. 5.3 Incurred Expenses. To be reimbursable, the Participant must have incurred a Health Care Expense after his/her Entry Date. An expense is"incurred"when the Participant is provided with the care giving rise to the Health Care Expense, not when the service is billed or paid. Reimbursement shall not be made for future projected expenses. 5.4 Timing of Reimbursement. Unless provided otherwise in the Adoption Agreement, a Participant shall be reimbursed twice per month. 5.5 Maximum Reimbursement. The maximum reimbursement a Participant may receive at any time shall be the amount of the Participant's HC Account balance at the time the reimbursement request is processed. The maximum reimbursement requirements apply to the Participant, Spouse, and Dependents on an aggregate basis, not an individual basis. If a Participant's claim is for an amount that is more than the Participant's current HC Account balance, the excess, unreimbursed part of the claim will be carried into the subsequent month(s), to be paid as the balance of the Participant's HC Account becomes adequate. Notwithstanding the foregoing, the excess, unreimbursed portion of a claim will not be carried over into the subsequent month(s) if: (a) the claim has been pending at least eighteen (18) months; or (b) no further contributions will be made to the Participant's HC Account under Article VI. 5.6 Participant's Termination of Employment and Death. (a) Termination of Employment. Notwithstanding anything herein to the contrary, unless specifically provided otherwise in the Adoption Agreement, the former Participant may continue to access the HC Account following termination of employment for purposes of obtaining reimbursement of Health Care Expenses. Such access shall continue until the earliest to occur of the events identified in Section 4.5(b), (c) or (d). Such access shall also be provided to those individuals, if any, who at the time of the termination of the Participant's participation were the Participant's Spouse or Dependents. Such access to the Participant's HC Account by a Spouse and Dependents shall cease upon the earlier of the date of termination of the Participant's access or the date the Spouse ceases to be a Spouse or the Dependent ceases to be a Dependent, as the case may be. If continuation coverage is required by applicable law, the access described in this Section 5.6(a) shall be provided only if offered as and selected in lieu of such continuation coverage. (b) Death. Notwithstanding anything herein to the contrary, unless specifically provided ©HaynesHitesman, PC 2006 8 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 otherwise in the Adoption Agreement, in the event a Participant's participation in the Plan terminates because of the Participant's death, the Participant has no surviving Spouse or Dependents, and the former Participant incurred a Health Care Expense prior to the Participant's death that would have been reimbursable out of the Participant's HC Account but that has not been submitted for reimbursement, the deceased Participant's estate may submit such Health Care Expense for reimbursement in accordance with Section 5.2. A certified copy of the deceased Participant's death certificate and proof that the person acting upon behalf of such Participant's estate has authority to do so must be submitted with such claims. ii. Notwithstanding anything herein to the contrary, unless specifically provided otherwise in the Adoption Agreement, the deceased Participant's surviving Spouse, if any, may continue to access the Participant's HC Account for purposes of obtaining reimbursement of Health Care Expenses until the earlier of: (1) the date on which the HC Account balance reaches zero; or (2) the date on which the surviving Spouse dies. No claim shall be paid to a surviving Spouse pursuant to this subsection (ii) unless a certified copy of the deceased Participant's death certificate has been provided to the Plan Supervisor. If continuation coverage is required by applicable law, the access described in this Section 5.6(b)(ii) shall be provided only if offered as and selected in lieu of such continuation coverage. iii. Notwithstanding anything herein to the contrary, unless specifically provided otherwise in the Adoption Agreement, the deceased Participant's surviving Dependents, if any, may continue to access the Participant's HC Account for purposes of obtaining reimbursement of Health Care Expenses until the earlier of: (1) the date on which the HC Account balance reaches zero; or (2) the date the last surviving Dependent dies. No claim shall be paid to a surviving Dependent pursuant to this subsection (iii) unless a certified copy of the deceased Participant's death certificate has been provided to the Plan Supervisor. If continuation coverage is required by applicable law, the access described in this Section 5.6(b)(iii) shall be provided only if offered as and selected in lieu of such continuation coverage. iv. No one other than the Participant's Spouse and Dependants may have access to the Participant's HC Account following the Participant's death. 5.7 Nondiscrimination. This Plan is intended to be nondiscriminatory and to meet the requirements under applicable sections of the Code. If the Plan Administrator determines before or during any Plan Year, that the Plan may fail to satisfy any nondiscrimination requirement imposed by the Code or any limitation on benefits provided to Highly Compensated Individuals, the Plan Administrator shall take such action as the Plan Administrator deems appropriate, under rules uniformly applicable to similarly situated Participants, to assure compliance with such requirements or limitation. ©HaynesHitesman, PC 2006 9 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 5.8 HC Account Forfeitures. Unless provided otherwise in the Adoption Agreement, any amount remaining in a Participant's HC Account shall be forfeited following the later to occur of: (1) the termination of Participant's participation in the Plan, (2) the termination of any continuation coverage provided by the Plan under applicable law, or (3) the termination of any coverage provided by the Plan in lieu of continuation coverage required by applicable law; provided that where participation or coverage is terminated because of the death of the Participant, forfeiture shall not occur until the expiration of the time period contained in Section 5.2 for the submission of claims. Forfeited amounts shall be used for the purposes described in the Adoption Agreement. However, under no circumstances will the amounts revert to the Adopting Employer. 5.9 Medical Support Orders. Notwithstanding any provision of this Plan to the contrary this Plan shall recognize medical child support orders as required under applicable state law or under the Child Support Performance and Incentive Act of 1998. Participants involved in a divorce or child custody matter should be directed to have their legal counsel contact the Plan Supervisor. 5.10 Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"). Continued coverage shall be provided only if and as required under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), as amended. To the extent not contained in Article XII, the Plan Administrator shall, within the parameters of the law, establish uniform policies by which to provide such continuation coverage, including but not limited to providing alternative coverage in lieu of COBRA as provided in the regulations. 5.11 Coordination with Cafeteria Plan. To the extent the Adopting Employer also sponsors a medical reimbursement program as part of its cafeteria plan within the meaning of Section 125 of the Code, a Participant participates in the medical reimbursement program, and the Participant or a Covered Individual covered through such a Participant incurs an eligible Health Care Expense that is also eligible for reimbursement under the medical reimbursement program, which program pays first is described in the Adoption Agreement. If the Plan Supervisor adjudicates claims under both programs and a claim is submitted to the Plan Supervisor for an expense covered by both programs at a time when the balance of the Participant's account under the program that pays first is inadequate to pay the claim in full, the unreimbursed portion of the claim shall automatically be paid by the other program. 5.12 Further Limitations on Benefits. (a) This Plan does not cover expenses incurred for any loss caused by or resulting from injury or disease for which benefits are payable under any worker's compensation law or other employer, union, association or governmental sponsored group insurance plan. (b) This Plan does not cover expenses incurred for any loss caused by or resulting from injury or disease for which benefits are received by the Participant, the Participant's Spouse or the Participant's Dependent under any health and accident insurance policy or program, whether or not premiums are paid by the Adopting Employer or by the Participant, the Participant's Spouse or the Participant's Dependent child. (c) Amounts reimbursed under a dependent care assistance program described in Section 129 of the Code shall not be reimbursed under this Plan. (d) Other limitations, if any, as set forth in the Adoption Agreement. ©HaynesHitesman, PC 2006 10 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 ARTICLE VI. CONTRIBUTIONS 6.1 Employer Contributions. The Adopting Employer shall make a fixed contribution per Participant as set forth in the Adoption Agreement. The amount of the Employer Contribution, and any restrictions on the use thereof, shall be identified in the Adoption Agreement and communicated to the Participants. The amount of the Employer Contribution may change from time to time as reflected in the Adoption Agreement. Contributions shall be available for reimbursement as described in the Adoption Agreement. 6.2 No Employee Contributions. Except for contributions required for continuation coverage as described in Section 5.10, no contributions other than Employer Contributions are required nor will they be accepted. 6.3 Trust. All contributions shall be held in the Trust(s) as provided in the Adoption Agreement. The investment of the assets of the Trust(s) shall be directed as provided in the Adoption Agreement. Notwithstanding the foregoing, the investment of any assets of the Trust(s) that constitute forfeitures shall be directed by the Plan Administrator until such time, if any, that such forfeitures are allocated to the HC Accounts of other Participants. ©HaynesHitesman, PC 2006 11 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 ARTICLE VII. CLAIMS DETERMINATIONS AND REVIEW OF DENIED CLAIM The following procedures apply: 7.1 Initial Claim Determination. (a) Time Frame for Decision. The decision maker must determine the claim within thirty (30) days of receipt of the claim. (b) Extension of Time. If the decision maker is not able to determine the claim within this time period due to matters beyond its control, the decision maker may take an additional period of up to fifteen (15) days to determine the claim. If this additional time will be needed, the decision maker must notify the claimant or the claimant's Authorized Representative prior to the expiration of the initial thirty (30) day time period for determining the claim. This extension is only available once. Notification: The notification of the need for the extension must include a description of the "matters beyond the Plan's control" that justify the extension and the date by which a decision is expected. (c) Incomplete Claims. There is no special rule if a claim is incomplete. Incomplete claims can be addressed through the extension of time described above. If the reason for the extension is the failure to provide necessary information and the claimant is appropriately notified, the decision maker's period of time to make a decision is"tolled." Tolling: The period of time in which the decision maker must determine a claim is suspended from the date upon which notification of the missing necessary information is sent until the date upon which the claimant responds. Notification: For this purpose, notification can be made orally to the claimant or the health care professional, unless the claimant requests written notice. The notification will include a time frame in which the necessary information must be provided. Once the necessary information has been provided, the decision maker must decide the claim within the extension described above. If the requested information is not provided within the time specified, the claim may be decided without that information. 7.2 Decision. (a) Notification of Decision. Written (or electronic) notification of the decision maker's determination must be provided to the claimant or the claimant's Authorized Representative. Such notification must be provided only where the decision is adverse. "Adverse"means: • A denial, reduction, or termination of, or • A failure to provide or make payment (in whole or in part) for a benefit. ©HaynesHitesman, PC 2006 12 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 (b) Adverse Decision. For adverse claim determinations, the notification shall reflect at least the following: • State the specific reason(s) for determination; • Reference specific Plan provision(s) upon which the determination is based; • Describe additional material or information necessary to complete the claim and why such information is necessary; • Describe Plan procedures and time limits for appeal of the determination, and the right to obtain information about those procedures and the right to sue in federal court; and • Disclose any internal rule, guidelines, protocol or similar criterion relied on in making the adverse determination (or state that such information will be provided free of charge upon request); and • Where the decision involves scientific or clinical judgment, disclose either (1) an explanation of the scientific or clinical judgment applying the terms of the Plan to claimant's medical circumstances, or (2) a statement that such explanation will be provided at no charge upon request. Notice of the adverse determination may be provided in written or electronic form. Electronic notices will be provided in a form that complies with applicable legal requirements. (c) Not Adverse Decision. For claim determinations that are not adverse, notice will be provided that informs the claimant or the claimant's Authorized Representative the claim has been accepted. 7.3 Access to Relevant Documents. In order (1) to evaluate whether to request review of an adverse determination, and (2) if review if requested, to prepare for such review, the claimant or the claimant's Authorized Representative will have access to all relevant documents. Relevant: A document, record or other information is"relevant" if it was relied upon in making the determination, or was submitted to the Plan, considered by the Plan, or generated in the course of making the benefit determination without regard to whether it was relied upon. 7.4 Appeal a Denied Claim. If a claim is denied, in whole or part, the claimant or the claimant's Authorized Representative may request the denied claim be reviewed. (a) Requesting Review. The claimant or the claimant's Authorized Representative has a period of 180 days to appeal the claim determination. The appeal request must be in writing and should be sent to the address specified in the notification of adverse decision described above. ©HaynesHitesman, PC 2006 13 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 (b) Submission & Consideration of Comments. The claimant or the claimant's Authorized Representative will have the opportunity to submit documents, written comments, or other information in support of the appeal. The review of the adverse benefit determinations will take into account all new information, whether or not presented or available at the initial determination. No deference will be afforded to the initial determination. (c) Consultation with Independent Medical Expert. In the case of a claim denied on the grounds of a medical judgment, a health professional with appropriate training and experience will be consulted. The health care professional who is consulted on appeal will not be the individual who was consulted, if any, during the initial determination or a subordinate of that individual. Disclosure: If the advice of a medical or vocational expert was obtained by the Plan in connection with the claim denial, the names of each such expert shall be provided, regardless of whether the advice was relied upon. (d) Time Frame for Decision. If claimant or the claimant's Authorized Representative requests a review of a denied claim within the time frame described above, the decision maker shall review of claim and make a determination no later than 60 days from the date the review request was received. (e) Decision. The review of the claim will be conducted by the Plan Administrator. It will be made by a person different from the person who made the initial determination and such person will not be a subordinate of the original decision maker. The information in the administrative record shall be reviewed. Additional information submitted shall be considered. The decision shall be based upon that information plus the terms of the Plan and past interpretations of the same and similar Plan provisions. The decision maker may rely upon protocols, guidelines, or other criterion. (f) Notification of Decision. Written (or electronic) notification of the decision maker's determination must be provided to the claimant or the claimant's Authorized Representative. Such notification must be provided whether the decision is adverse or not adverse. "Adverse"means: • A denial, reduction, or termination of, or • A failure to provide or make payment (in whole or in part) for a benefit. (g) Adverse Decision. For adverse appeal determinations, the notification shall reflect at least the following: • State the specific reason(s) for determination; • Reference specific Plan provision(s) upon which the determination is based; • Disclose any internal rules, guidelines, protocol or similar criterion relied on in making the adverse determination (or state that such information will be provided free of charge upon request); • A statement indicating entitlement to receive upon request, and without charge, reasonable access to or copies of all documents, records or other information relevant to the determination; and ©HaynesHitesman, PC 2006 14 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 • Where the decision involves scientific or clinical judgment, disclose either (1) an explanation of the scientific or clinical judgment applying the terms of the Plan to claimant's medical circumstances, or (2) a statement that such explanation will be provided at no charge upon request. Notice of the adverse determination may be provided in written or electronic form. Electronic notices will be provided in a form that complies with applicable legal requirements. (h) Not Adverse Decision. For claim determinations that are not adverse, notice will be provided that informs the claimant or the claimant's Authorized Representative the decision has been reversed, and the claim accepted. ©HaynesHitesman, PC 2006 15 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 ARTICLE VIII. HIPAA PRIVACY AND SECURITY PROVISIONS Effective April 14, 2004, the Privacy Rules under HIPAA apply to this Plan. The Security Rules under HIPAA apply to this Plan beginning April 20, 2006. For purposes of this Section, "Plan Sponsor" refers to the Adopting Employers as the"Plan Sponsor"and as the entities capable of acting on behalf of the covered entity, the Plan. 8.1 Use and Disclosure of PHI. The Plan will use PHI to the extent of and in accordance with the uses and disclosures permitted by HIPAA. Specifically, the Plan will use and disclose PHI for purposes related to health care treatment, payment for health care and health care operations. The Plan will also use and disclose PHI as permitted by authorization of the subject of PHI. (a) Payment includes activities undertaken by the Plan to obtain premiums or determine or fulfill its responsibility for coverage and provision of Plan benefits that relate to an individual to whom health care is provided. These activities include, but are not limited to, the following: (1) Determination of eligibility, coverage and cost sharing amounts (for example, cost of a benefit, plan maximums and co-payments as determined for an individual's claim); (2) Coordination of benefits; (3) Adjudication of health benefits claims (including appeals and other payment disputes); (4) Subrogation of health benefit claims; (5) Establishing employee contributions; (6) Risk adjusting amounts due based on enrollee health status and demographic characteristics; (7) Billing, collection activities and related health care data processing; (8) Claims management and related health care data processing, including auditing payments, investigating and resolving payment disputes and responding to participant inquiries about payments; (9) Obtaining payment under a contract for reinsurance (including stop-loss and excess of loss insurance); (10) Medical necessity reviews or reviews of appropriateness of care or justification of charges; (11) Utilization review, including pre-certification, preauthorization, concurrent review and retrospective review; (12) Disclosure to consumer reporting agencies related to the collection of premiums or reimbursement (the following PHI may be disclosed for payment purposes: name and address, date of birth, Social Security number, payment history, account number and name and address of provider and/or health Plan; and ©HaynesHitesman, PC 2006 16 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 (13) Reimbursement to the Plan. (b) Health care operations include, but are not limited to, the following activities: (1) Quality assessment; (2) Population-based activities relating to improving health or reduction health care costs, protocol development, case management and care coordination, disease management, contacting health care providers and patients with information about treatment alternatives and related functions; (3) Rating provider and Plan performance, including accreditation, certification, licensing or credentialing activities; (4) Underwriting, premium rating and other activities relating to the creation, renewal or replacement of a contract of health insurance or health benefits, and ceding, securing or placing a contract for reinsurance of risk relating to health care claims (including stop-loss insurance and excess of loss insurance); (5) Conducting or arranging for medical review, legal services and auditing function, including fraud and abuse detection and compliance programs; (6) Business planning and development, such as conducting cost-management and planning-related analyses related to managing and operating the Plan, including formulary development and administration, development or improvement of payment methods or coverage policies; (7) Business management and general administration activities of the Plan, including, but not limited to: a. Management activities relating to the implementation of and compliance with HIPAA's administrative simplification requirements; b. Customer service, including data analyses for policyholders; (8) Resolution of internal grievances. (9) Due diligence in connection with the sale or transfer of assets to a potential successor in interest, if the potential successor in interest is a covered entity under HIPAA or following completion of the sale or transfer, will become a covered entity. 8.2 Plan Sponsor's Obligations. Under HIPAA, the Plan may not disclose PHI to the Plan Sponsor (as defined by the Privacy Rules under HIPAA) unless the Plan Sponsor agrees to certain conditions. The Plan Sponsor agrees to the following conditions, thereby allowing the Plan to disclose PHI to the Plan Sponsor. The Plan Sponsor will: (a) Not use or further disclose PHI other than as permitted or required by the Plan document or as required by law; (b) Ensure that any agents, including a subcontractor, to whom the Plan provides PHI received from the Plan agree to the same restrictions and conditions that apply to the Plan Sponsor with respect to such PHI; ©HaynesHitesman, PC 2006 17 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 (c) Not use or disclose PHI for employment related actions and decision unless authorized by an individual; (d) Not use or disclose PHI in connection with any other benefit or employee benefit plan of the Plan Sponsor unless authorized by an individual; (e) Report to the Plan any PHI use or disclosure, that is inconsistent with the uses or disclosures provided for, of which it becomes aware; (f) Make available to an individual for inspection and copying PHI about the individual as allowed by and in accordance with HIPAA; (g) Make PHI available for amendment and incorporate any amendments to PHI in accordance with HIPAA; (h) Make available the information required to provide an accounting of disclosures; (i) Make internal practices, books and records relating to the use and disclosure of PHI received from Plan available to the HHS Secretary for the purposes of determining the Plan's compliance with HIPAA; and, (j) If feasible, return or destroy all PHI received for the Plan that the Plan Sponsor still maintains in any form, and retain no copies of such PHI when no longer needed for the purpose for which disclosure was made (or if return or destruction is not feasible, limit further uses and disclosures to those purposes that make the return or destruction infeasible). 8.3 Plan Sponsor's Obligations under Security Rules. If the Plan Sponsor creates, receives, maintains, or transmits ePHI, the Plan Sponsor will: (a) Implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of ePHI; (b) Ensure that any agents, including subcontractors, to whom the Plan Sponsor provides ePHI or to whom ePHI is provided on behalf of Plan Sponsor implement reasonable and appropriate security measures to protect the ePHI; (c) Report to the Plan any Security Incident of which it becomes aware; and (d) Implement reasonable and appropriate security measures to ensure that only those persons identified in Section 8.4 have access to ePHI and that such access is limited to the purposes identified in Section 8.5. 8.4 Adequate separation between the Plan and the Plan Sponsor must be maintained. In accordance with HIPAA, only the following employees or classes of employees may be given access to PHI and ePHI: (1) The benefit manager; and, (2) Staff designated by the benefits manager. The Plan Sponsor shall identify, by name, these persons in writing to the Plan Supervisor. ©HaynesHitesman, PC 2006 18 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 8.5 Limitation of PHI and ePHI Access and Disclosure. The persons described in Section 8.4 above may only have access to, and use and disclose, PHI and ePHI for Plan administration functions that the Plan Sponsor performs for the Plan. 8.6 Noncompliance Issues. If the person described in Section 8.4 above does not comply with this Plan document, the Plan Sponsor shall provide a mechanism for resolving issues of noncompliance, including, but not limited to, disciplinary action against such person. ©HaynesHitesman, PC 2006 19 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 ARTICLE IX. PLAN ADMINISTRATION 9.1 Plan Administrator. (a) The Plan Administrator shall be responsible for the general supervision of the Plan and shall have authority to control and manage the operation and administration of the Plan. The Plan Administrator shall perform any and all acts necessary or appropriate for the proper management and administration of the Plan. (b) The Sponsor's advisory council shall be the Plan Administrator unless its Managing Body designates a person or persons other than such advisory council to be the Plan Administrator. The Sponsor's advisory council shall also be the Plan Administrator if the person or persons so designated cease to be the Plan Administrator. (c) The Plan Administrator may designate an individual or entity to act on its behalf with respect to certain powers, duties, and/or responsibilities regarding the operation and administration of this Plan. Unless reflected in the Adoption Agreement otherwise, America's VEBA is the Plan Supervisor. 9.2 Agent for Service of Legal Process. The agent for service of legal process for the Plan is the Plan Administrator. 9.3 Allocation of Responsibility for Administration. The Plan Administrator shall have the sole responsibility for the administration of this Plan as is specifically described in this Plan. The designated representatives of the Plan Administrator shall have only those specific powers, duties, responsibilities, and obligations as are specifically given to them under this Plan. The Plan Administrator warrants that any directions given, information furnished, or action taken by it shall be in accordance with the provisions of the Plan authorizing or providing for such direction, information or action. It is intended under this Plan that the Plan Administrator shall be responsible for the proper exercise of its own powers, duties, responsibilities, and obligations under this Plan and shall not be responsible for any act or failure to act of another Employee of the Adopting Employer. Neither the Plan Administrator, nor the Adopting Employer makes any guarantee to any Participant in any manner for any loss or other event because of the Participant's participation in this Plan. 9.4 Rules and Decisions. Except as otherwise specifically provided in the Plan, the Plan Administrator may adopt such rules and procedures as it deems necessary, desirable, or appropriate. All rules and decisions of the Plan Administrator shall be uniformly and consistently applied to all Participants in similar circumstances. When making a determination or calculation, the Plan Administrator shall be entitled to rely upon information furnished by a Participant, the Adopting Employer, or legal counsel, or other entity acting on behalf of the Adopting Employer or Plan Administrator. 9.5 Records and Reports. The Plan Administrator shall be responsible for complying with all reporting, filing and disclosure requirements for the Plan. 9.6 Authorization of Benefit Payments. The Plan Administrator (or the Plan Supervisor as its designee) shall issue directions to the Trustee(s) concerning all benefits which are to be paid from the Trust(s), pursuant to the provisions of the Plan, and warrants that all such directions are in accordance with the Plan. ©HaynesHitesman, PC 2006 20 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 9.7 Other Powers and Duties of the Administrator. The Plan Administrator shall also have such other duties and powers as may be necessary to discharge its duties under the Plan including, but not limited to, the following: (a) Discretion to construe and interpret the Plan in a non-discriminatory manner, to decide all questions of eligibility and to determine all questions arising in the administration and application of the Plan; (b) To receive from the Adopting Employer and from Participants such information as shall be necessary for the proper administration of the Plan; (c) To furnish the Adopting Employer, upon request, such annual reports with respect to the administration of the Plan as are reasonable and appropriate; (d) To appoint individuals to assist in the administration of the Plan and any other agents the Plan Administrator deems advisable including legal and actuarial counsel. The Plan Administrator shall not have the power to add to, subtract from, or modify any of the terms of the Plan, to change or add to any benefits provided by the Plan, or to waive or fail to apply any requirements of eligibility for a benefit under this Plan; (e) To compute, certify, and direct the Trustee(s) with respect to the amount and the kind of benefits to which any Participant shall be entitled hereunder; (f) To authorize and direct the Trustee(s) with respect to all discretionary or otherwise directed disbursements from the Trust(s); (g) To maintain all necessary records for the administration of the Plan; (h) To consult with Adopting Employer regarding the short and long-term liquidity needs of the Plan in order that the Plan Administrator can exercise any investment discretion in a manner designed to accomplish specific objectives; (i) To act as the named fiduciary; (j) To assist any Participant regarding the Participant's rights, benefits, or elections available under the Plan; (k) To determine from time to time the manner and method of funding payment of, or otherwise providing benefits specified by the Plan to Participants, their dependents, and their beneficiaries under the Plan; (I) To appoint trustees and directed trustees; ©HaynesHitesman, PC 2006 21 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 (m) To investigate and verify claims of Participants and their dependants, and medical or dental groups, hospitals, clinics, or other qualified persons that provide benefits or services to Participants and their dependents under the Plan and/or to designate a Plan Supervisor to do so; (n) To keep a full, accurate, and detailed record of all transactions of the Trust(s), including a separate accounting for each Adopting Employer and each Participant and to make available to the Trustee(s) or the Adopting Employer for examination such records at any time during the regular business hours; and (o) To provide each Participant with an annual or other more frequent statement of the Participant's HC Account in electronic format. ©HaynesHitesman, PC 2006 22 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 ARTICLE X. PLAN AMENDMENT AND TERMINATION 10.1 Amendment by Adopting Employer. The Adopting Employer reserves the right to amend, alter, or wholly revise this Plan or the Adoption Agreement, prospectively or retrospectively, at any time by the action of its Managing Body, and the interest of each Participant is subject to the powers so reserved. The Adopting Employer expressly may amend, alter or wholly revise this Plan or the Adoption Agreement if it determines it necessary or desirable, with or without retroactive effect, to comply with the law. Such changes shall not affect any right to benefits that accrued prior to such amendments. Such amendment shall be made in writing and shall be delivered promptly to the Plan Supervisor, Plan Administrator, and Trustee(s). 10.2 Adopting Employer's Right to Terminate. Although the Adopting Employer expects the Plan to be maintained for an indefinite time, the Adopting Employer reserves the right to terminate the Plan or any portion of the Plan at any time. In the event of the dissolution, merger, consolidation, or reorganization of the Adopting Employer, the Plan shall terminate unless the Plan is continued by a successor to the Adopting Employer in accordance with the resolution of such successor's Managing Body. Such termination shall not affect any right to benefits that accrued prior to such termination. Such action shall be made in writing and shall be delivered to the Plan Supervisor, Plan Administrator, and Trustee(s) at least ninety (90) days prior to the effective date of the termination. ©HaynesHitesman, PC 2006 23 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 ARTICLE XI. GENERAL PROVISIONS 11.1 No Reversion to the Plan Administrator or Adopting Employer. No part of the corpus or income of the Trust(s) shall revert to the Adopting Employer or be used for or diverted to, purposes other than the exclusive benefit of participants and other persons entitled to benefits under the Plan. 11.2 Persons Dealing With Trust(s). No person dealing with the Trust(s) shall be required to see to the application of any money paid or property delivered to the Trust(s), or to determine whether or not the Trust(s) is acting pursuant to any authority granted to them under the Trust(s). 11.3 Non-Alienation of Benefits. Benefits payable under this Plan shall not be subject to anticipation, alienation, sale, transfer, execution, or levy of any kind either voluntary or involuntary, including any such liability which is for alimony or other payments for the support of a spouse or former spouse, or for any other relative of the Participant, prior to actually being received by the person entitled to the benefit under the terms of the Plan, and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or otherwise dispose of any right to benefits payable under the Plan shall be void. The Adopting Employer, Plan Administrator and/or Plan Supervisor shall not in any manner be made liable for, or subject to, the debts, contracts, liabilities, engagements or torts of any person entitled to benefits under the Plan. 11.4 Action by Employer. Whenever the Adopting Employer, under the terms of this Plan, is permitted or required to do or perform any act or matter or thing, it shall be done and performed by the Managing Body of the Adopting Employer or such representatives of the Adopting Employer as the Managing Body may designate. 11.5 No Guarantee of Tax Consequences. Notwithstanding any provision in this Plan to the contrary, this Plan makes no commitment or guarantee that any amounts paid to or on behalf of a Participant under this Plan will be excludable from the Participant's gross income for federal or state income tax purposes. It shall be the obligation of each Participant to determine whether each payment is excludable from the Participant's gross income for federal and state income tax purposes, and to notify the Plan Administrator if the Participant has reason to believe that any such payment is not so excludable. 11.6 Compensation and Expenses. The Plan Supervisor shall be entitled to reasonable fees for its services hereunder, which shall be described in an Administrative Services Agreement between the Plan Supervisor and the Plan Administrator. Such fees and any expenses incurred by the Plan Supervisor in connection with the Plan (including expenses and fees of persons hired or employed by them) shall be paid as described in the Adoption Agreement. The compensation of the Trustee(s), as provided for in the Trust document(s), shall also be paid as described in the Adoption Agreement. 11.7 Governing Law. This Plan shall be construed and enforced according to the laws of the State identified in the Adoption Agreement, except to the extent preempted by federal law. 11.8 Family and Medical Leave Act of 1993 ("FMLA"). Notwithstanding any provision of this Plan to the contrary, this Plan shall be operated and maintained in a manner consistent with FMLA, to the extent the Adopting Employer is subject to such law. ©HaynesHitesman, PC 2006 24 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 11.9 Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"). Notwithstanding any provision of this Plan to the contrary, this Plan shall be operated and maintained in a manner consistent with USERRA. The Plan Administrator shall, within the parameters of the law, establish uniform policies by which to provide such continuation coverage required by USERRA. 11.10 Plan Not a Contract of Employment. The Plan is not an employment agreement and does not assure the continued employment of any Employee or Participant for any period of time. Nothing contained in the Plan shall interfere with the Adopting Employer's right to discharge an Employee at any time, regardless of the effect such discharge may have upon the individual as a Participant in this Plan. 11.11 Erroneous Payments. If the Plan makes a payment for benefits in excess of the benefits required by the Plan or makes a payment to or on behalf of an individual who is not currently covered by the Plan, the Plan shall be entitled to recover such erroneous payment from the recipient thereof. 11.12 Medicare Secondary Payer. The Plan shall comply with the Medicare secondary payer rules found in 42 U.S.C. § 1395y. The Plan shall pay benefits primary to Medicare if: (a) the Participant is employed by the Adopting Employer and is actually covered by Medicare by reason of obtaining the age of 65; (b) at the time the claim is made the Adopting Employer employs 100 or more employees, the Participant is employed by the Adopting Employer, and the Participant is actually covered by Medicare by reason of disability; and (c) the Participant is entitled to Medicare by reason of end stage renal disease and the claim is made during the twelve (12) month period beginning in the first month in which such Participant is entitled to benefits under Medicare (regardless of whether he/she applies for such benefits). In all other cases, the Plan shall pay benefits secondary to Medicare. 11.13 Medicare Part D. The Plan shall cooperate with Medicare Part D prescription drug plans (and Covered Individuals who are enrolled in such plans) with respect to coordination of benefits between the Plan and the Medicare Part D plan, including the provision of information to the Medicare Part D plan (or the Covered Individuals) regarding the benefits provided under the Plan for costs covered by the Medicare Part D plan. Covered Individuals enrolled in Medicare Part D plans shall cooperate with the Plan so that the Plan may perform its obligations under this subsection. ©HaynesHitesman, PC 2006 25 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 ARTICLE XII. COBRA CONTINUATION 12.1 Compliance with COBRA. Continued coverage for the Plan shall be provided only if and as required under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA') as amended. 12.2 COBRA Policies and Procedures. To the extent not provided herein, the Plan Administrator shall, within the parameters of the law, establish uniform policies by which to provide such continuation coverage. 12.3 Notification Procedures. The Plan requires the notifications described below with respect to continuation coverage under COBRA: (a) Notice of qualifying event. Under the law, a Covered Individual (or a representative acting on behalf of the Covered Individual) has the responsibility to inform the Plan of a divorce, legal separation, or a child losing dependent status under the Plan (the "qualifying event") within sixty (60) days of the latest of: (i) the date of the qualifying event; (ii) the date coverage would be lost because of the qualifying event; or (iii) the date on which the Covered Individual was informed of the responsibility to provide notice and the procedures for doing so. The notification must be provided in writing and be mailed to the Plan. Oral notification, including notification by telephone is not acceptable. Electronic (including emailed or faxed) or hand-delivered notifications are not acceptable. The notification must be postmarked no later than the last day of the sixty (60) day notice period described above. The notification must: (1) state the name of the Plan; (2) state the name and address of the employee or former employee who is or was covered under the Plan; (3) state the name(s) and address(es) of all Covered Individuals who lost coverage due to the qualifying event; (4) include a detailed description of the event; (5) identify the effective date of the event; and (6) be accompanied by any documentation providing proof of the event (i.e., the divorce decree). If no notification is received within the required time period, no continuation coverage will be provided. If the notification is incomplete, it will be deemed timely if the Plan is able to determine the plan to which it applies, the identity of the employee and the Covered Individuals, the qualifying event, and the date on which the qualifying event occurred, provided that the missing information is provided within thirty (30) days. If the missing information is not provided within that time, the notification will be ineffective and no continuation coverage will be provided. (b) Notice of second qualifying event. A Covered Individual (or a representative acting on behalf of the Covered Individual) must notify the Plan of the death of the employee, divorce or separation from the employee, or a dependent child's ceasing to be eligible for coverage as a dependent under the Plan, if that event occurs within the eighteen (18) month continuation period (or an extension of that period for disability or for pre- termination Medicare entitlement). The notification must be provided within sixty (60) days after such a second qualifying event occurs in order to be entitled to an extension of the continuation period. The notification must be provided in writing and be mailed to ©HaynesHitesman, PC 2006 26 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 the Plan. Oral notification, including notice by telephone is not acceptable. Electronic (including emailed or faxed) or hand-delivered notifications are not acceptable. The notification must be postmarked no later than the last day of the sixty (60) day notice period described above. The notification must: (1) state the name of the Plan; (2) state the name and address of the employee or former employee who is or was covered under the Plan; (3) state the name(s) and address(es) of all Covered Individuals who lost coverage due to the initial qualifying event and who are receiving COBRA coverage at the time of the notice; (4) identify the nature and date of the initial qualifying event that entitled the Covered Individuals to COBRA coverage; (5) include a detailed description of the event; (6) identify the effective date of the event; and (7) be accompanied by any documentation providing proof of the event (i.e., the divorce decree). If no notification is received within the required time period, no extension of the continuation period will be provided. If the notification is incomplete, it will be deemed timely if the Plan is able to determine the plan to which it applies, the identity of the employee and the Covered Individuals, the qualifying event, and the date on which the qualifying event occurred, provided that the missing information is provided within thirty (30) days. If the missing information is not provided within that time, the notification will be ineffective and no extension of the continuation period will be provided. (c) Notice of disability. A Covered Individual (or a representative acting on behalf of the Covered Individual) must notify the Plan when a Covered Individual has been determined to be disabled under the Social Security Act within sixty (60) days of the latest of: (i) the date of the disability determination; (ii) the date of the qualifying event; (iii) the date coverage would be lost because of the qualifying event; or (iv) the date on which the Covered Individual was informed of the responsibility to provide notice and the procedures for doing so. Notwithstanding the foregoing, notification must be provided before the end of the first eighteen (18) months of continuation coverage. The notification must be provided in writing and be mailed to the Plan. Oral notification, including notice by telephone is not acceptable. Electronic (including emailed or faxed) or hand-delivered notices are not acceptable. The notification must be postmarked no later than the last day of the sixty (60) day notice period described above. The notification must: (1) state the name of the Plan; (2) state the name and address of the employee or former employee who is or was covered under the Plan; (3) state the name(s) and address(es) of all Covered Individuals who lost coverage due to the initial qualifying event and who are receiving COBRA coverage at the time of the notice; (4) identify the nature and date of the initial qualifying event that entitled the qualified beneficiaries to COBRA coverage; (5) state the name of the disabled Covered Individual; (6) identify the date upon which the disabled Covered Individual became disabled; (7) identify the date upon which the Social Security Administration made its determination of disability; and ©HaynesHitesman, PC 2006 27 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 (8) include a copy of the determination of the Social Security Administration. If no notification is received within the required time period, no extension of the continuation period will be provided. If the notification is incomplete, it will be deemed timely if the Plan is able to determine the plan to which it applies, the identity of the employee and the Covered Individuals, the qualifying event, and the date on which the qualifying event occurred, provided that the missing information is provided within thirty (30) days. If the missing information is not provided within that time, the notification will be ineffective and no extension of the continuation period will be provided. If such person has been determined under the Social Security Act to no longer be disabled, the person must notify the Plan of that determination within thirty (30) days of the later of: (i) the date of such determination; or (ii) the date on which the Covered Individual was informed of the responsibility to provide notice and the procedures for doing so. The notification must be in writing and be mailed to the Plan. Regardless of when the notification is provided, continuation coverage will terminate retroactively on the first day of the month that begins thirty (30) days after the date of the determination, or the end of the initial coverage period, if later. If the notification is not provided within the required time, the Plan reserve the right to seek reimbursement of any benefits provided by the Plan between the date coverage terminates and the date the notification is provided. (d) Notice of Coverage Under Another Group Health Plan or Medicare. A Covered Individual must notify the Plan immediately if any Covered Individuals receiving continuation coverage actually become covered by another group health plan or Medicare. Regardless of when such notification is provided, coverage will terminate retroactively to the date of the coverage under the other group health plan or Medicare. If, for whatever reason, a Covered Individual on continuation coverage receives any benefits under the Plan after coverage is to cease under the foregoing rule, the Plan reserve the right to seek reimbursement from such Covered Individual. ©HaynesHitesman, PC 2006 28 REBA VEBA Amended and Restated Basic Plan Document July 1,2006 BENEFIT PLAN* FEE DISCLOSURE AND AUTHORIZATION (FOR PARTICIPANT-DIRECTED PLANS RECEIVING DIRECTED TRUSTEE OR CUSTODIAL SERVICES) Plan Name: City of Eden Prairie VEBA Health Savings Plan The undersigned is the named fiduciary or other fiduciary("Independent Fiduciary") of the above named plan("Plan")with authority to select the Plan's investments and approve the fees to be paid from the Plan. U.S.Bank(as defined below)will act in the following capacity for the Plan: ® Directed Trustee El Custodian This Fund Selection and Fee Authorization is effective as of June 1 2007. INTRODUCTION The Independent Fiduciary has selected U.S.Bancorp,acting through its subsidiary,U.S.Bank National Association or one or more of its other subsidiaries or affiliates (collectively, "U.S. Bank"), to provide services to the Plan. The Independent Fiduciary has sole responsibility to select the Plan's investment options for participant investment. This Fee Disclosure and Authorization describes the Plan's services and fee arrangements,as follows: Part A designates the investments for the Plan,including mutual funds and collective trust funds(the "Funds"),and describes the fees and expenses of the Funds,including compensation(if any)U.S.Bank receives from the Funds; Part B describes the fees that the Plan will pay directly to U.S.Bank;and Part C describes the circumstances under which this Fee Disclosure and Authorization may be changed and includes the Independent Fiduciary's approval and authorization of the arrangements described in Parts A,B,and C. By executing this Fee Disclosure and Authorization,the Independent Fiduciary is authorizing these services,fees,and compensation. For each designated Fund, U.S. Bank provides the Independent Fiduciary a prospectus or a summary description document. The prospectuses and summary description documents contain important information that supplements the information included in this Fee Disclosure and Authorization. The Independent Fiduciary should carefully review the prospectuses and summary description documents. BILLING INSTRUCTIONS Check One: ® Bill trustee fees to client ❑ Charge trustee fees directly to this account and send advice Send invoice or billing advice to(name and address): Karen Kurt Manager of Human Resources City of Eden Prairie 8080 Mitchell Road Eden Prairie,MN 55344 * To be used for all ERISA-covered retirement plans, governmental plans, and plans qualified under section 403(b) of the Internal Revenue Code. SHARES OF MUTUAL FUNDS AND COLLECTIVE TRUST FUNDS ARE NOT DEPOSITS OR OBLIGATIONS OF, OR GUARANTEED BY,ANY BANK, INCLUDING U.S. BANCORP AFFILIATE BANKS, NOR DOES THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL RESERVE BOARD,OR ANY OTHER AGENCY INSURE THEM. INVESTMENT IN MUTUAL FUNDS OR COLLECTIVE TRUST FUNDS INVOLVES INVESTMENT RISKS,INCLUDING POSSIBLE LOSS OF PRINCIPAL,DUE TO FLUCTUATIONS IN EACH FUND'S NET ASSET VALUE. Fee Disc./Auth.—FORM D—Directed—Participant Direction 2.15.06 Page 1 of 6 U.S. Bank Fee Disclosure and Authorization A. FUND SELECTION AND FEE DISCLOSURE The Independent Fiduciary has selected the following as the Plan's investment options. Proprietary Mutual Funds - The Independent Fiduciary designates as Plan investment options the "proprietary" mutual funds affiliated with U.S. Bank, including First American Investment Funds, Inc.,First American Funds, Inc., and First American Strategy Funds, Inc. (collectively, "First American Funds"), as set forth below. U.S. Bank provides services to the First American Funds, including investment advisory, custodial, administrative and fund transfer agency services, distribution services, shareholder service and other services and receives fees for these services from the Funds. This compensation may include fees paid under a plan of distribution under SEC Rule 12b-1 ("12b-1 fees"). The advisory fee and other fees received by U.S. Bank from each of the First American Funds are shown below. The Plan's investment options include the following First American Funds: Fund Name Ticker Share Advisory Other Fees Received Total Net Expense(after Class Fee by U.S.Bank* Expense fee waiver)** First American Prime Obligation Y FAIXX Y 0.1 0.38 0.49 0.48 First American Strat Inc Alloc Y FSFYX Y 0.1 0.13 1.06 0.92 First American Strat Gr&Inc Alloc Y FSKYX Y 0.1 0.05 1.07 1.05 First American Strat Growth Alloc Y FSGYX Y 0.1 0.08 1.16 1.10 First American Strat Aggr Alloc Y FSAYX Y 0.1 0.1 1.24 1.16 * This amount is based on amounts received by U.S.Bank as reported by the First American Funds in the most recent annual report to shareholders. This amount may vary based on actual charges for services rendered,but the basis for calculating this amount does not change. U.S.Bank also receives fees from First American Funds for securities lending services;these fees are not included in this column. For more information on how these fees are calculated and actual amounts received by U.S.Bank,please see the applicable prospectus or contact your Relationship Manager. **U.S.Bank may voluntarily waive a portion of the fees it is entitled to receive for providing advisory and other services to First American Funds. If there are any fee waivers in effect,the net Fund expense after the waiver is shown in this column. The fee waivers may be terminated at any time, as described by the applicable prospectus. By authorizing investment in the designated Funds, the Independent Fiduciary is hereby authorizing the fees paid by the Fund(and U.S.Bank's receipt of fees)up to the total annual operating expense as disclosed in the prospectus. Non-Proprietary Mutual Funds—The Independent Fiduciary designates as Plan investment options the following "non-proprietary" Funds, not affiliated with U.S. Bank. U.S. Bank may enter into agreements with non-proprietary Funds or their service providers (including advisers,administrators or transfer agents,and underwriters)whereby U.S.Bank provides distribution services, shareholder services, sub-transfer agency, custodial and other administrative support services and receives compensation for the services. This compensation may include fees paid under a plan of distribution under SEC Rule 12b-1. Generally, compensation received by U.S. Bank directly or indirectly from each non-proprietary Fund is based on the value of the Plan's investment in the Fund (an "asset- based"fee)at rates that vary among the Funds and share classes selected. The amount of fees U.S.Bank may receive from each of the non-proprietary Funds is identified on the schedule below. In addition, some non-proprietary Funds pay U.S. Bank a finders fee of up to 125 basis points on new contributions to the Fund. Compensation received by U.S.Bank directly or indirectly from Funds does not increase the Fund fees and expenses the Plan pays as a Fund shareholder,as disclosed in the applicable prospectus. The Plan's investment options include the following non-proprietary Funds: Fund Name Ticker Share Class Fees Received by Total Expense U.S.Bank* None. * U.S. Bank's affiliates Quasar Distributors, LLC, and/or U.S. Bancorp Fund Services Inc. provide certain distribution, administration, transfer agency,and other services to a limited number of Funds and receive fees for those services which in the aggregate range from.005%to.30%of net assets of the Fund. These fees are in addition to the fees reported in this column. These fees do not increase or decrease the Fund operating expenses as described in the Fund's prospectus. For more information,including information as to whether these affiliates provide services to and receive fees from any particular Fund,please review the Fund's prospectus or contact your Relationship Manager. SHARES OF MUTUAL FUNDS AND COLLECTIVE TRUST FUNDS ARE NOT DEPOSITS OR OBLIGATIONS OF, OR GUARANTEED BY,ANY BANK, INCLUDING U.S. BANCORP AFFILIATE BANKS, NOR DOES THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL RESERVE BOARD,OR ANY OTHER AGENCY INSURE THEM. INVESTMENT IN MUTUAL FUNDS OR COLLECTIVE TRUST FUNDS INVOLVES INVESTMENT RISKS,INCLUDING POSSIBLE LOSS OF PRINCIPAL,DUE TO FLUCTUATIONS IN EACH FUND'S NET ASSET VALUE. Fee Disc./Auth.—FORM D—Directed—Participant Direction 2.15.06 Page 2 of 6 U.S.Bank Fee Disclosure and Authorization Collective Trust Funds — The Independent Fiduciary designates as Plan investment options the following collective trust funds maintained by U.S. Bank. These are not mutual funds. For detailed information about each collective trust fund and its fees, see the Fund's summary description document. [NOTE: U.S.Bank may not offer collective trust funds to 403(b)plans.] The Plan's investment options include the following bank collective trust funds: Fund Name Ticker Share Class Total Expense None. Default Fund— If a Participant does not make an investment election with respect to the Participant's account, the Independent Fiduciary directs the Participant's account to be invested in the "Default Fund" designated below pending U.S. Bank's receipt of further investment instructions. The service and fee arrangements for this Fund are described above. The Default Fund is First American Prime Obligation Y. Fund Changes—The Independent Fiduciary acknowledges that U.S. Bank has established administrative and business relationships with certain mutual funds and other investment vehicles, under which U.S. Bank makes such investment options available on its "menu" of Funds for its employee benefit plan clients. U.S. Bank reserves the right to make changes in the menu of available Funds from time to time. If U.S. Bank makes a change to its Fund menu and such change affects the Funds selected in this Fee Disclosure and Authorization,U.S. Bank shall provide notice reasonably in advance of the effective date of such change, including notice of the reason for any such change. If a Fund will be deleted, U.S. Bank may include in its notice a proposed substitute Fund. The Independent Fiduciary agrees that, in the case of such notice of change to Funds available to the Plan, the Independent Fiduciary's failure to notify U.S. Bank in writing that the Independent Fiduciary rejects the proposed change before the effective date shall constitute the Independent Fiduciary's approval of the change proposed by U.S.Bank. Other Directed Investments—In a separate instruction document,the Independent Fiduciary or an investment manager designated by the Independent Fiduciary has directed that one or more additional investments be made available for the Plan. These investment(s) are made available solely at the direction of the Independent Fiduciary. U.S. Bank has not recommended these additional investment(s),exercises no discretion with regard to the additional investment(s),and shall have no responsibility to review or monitor the additional investments(s). Investment in the additional investment(s)may be subject to additional fees and expenses. ❑ There are other directed investments,as set forth in a separate instruction document. X There are no other directed investments. SHARES OF MUTUAL FUNDS AND COLLECTIVE TRUST FUNDS ARE NOT DEPOSITS OR OBLIGATIONS OF, OR GUARANTEED BY,ANY BANK, INCLUDING U.S. BANCORP AFFILIATE BANKS, NOR DOES THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL RESERVE BOARD,OR ANY OTHER AGENCY INSURE THEM. INVESTMENT IN MUTUAL FUNDS OR COLLECTIVE TRUST FUNDS INVOLVES INVESTMENT RISKS,INCLUDING POSSIBLE LOSS OF PRINCIPAL,DUE TO FLUCTUATIONS IN EACH FUND'S NET ASSET VALUE. Fee Disc./Auth.—FORM D—Directed—Participant Direction 2.15.06 Page 3 of 6 U.S.Bank Fee Disclosure and Authorization B. FEES PAID BY THE PLAN The Plan shall pay the following fees("Plan Fees")directly to U.S.Bank: Base Fee: $300 per account per year Trust Administration Fee*: Fee is calculated on the market value of assets held.Annual rates are: First$5,000,000 6 basis points Next$5,000,000 4 basis points Balance 2 basis points *Trust Administration Fee is waived if all assets of the account are invested in First American investment products. The Trust Administration Fee applies to all account assets if any non First American investment fund is offered under the account. Investment Transaction Fee: Waived The Plan Fees are in addition to fees and expenses the Plan pays as an investor in the Funds ("Fund Fees"). Fund Fees are charged against the Funds'assets and reduce the Funds'average daily balance and investment yields. Each of the Fund's fees and expenses are different and also vary based on share class. As of the Effective Date, each of the Fund's Fees are as set forth in Part A — Fund Selection and Fee Disclosure and are described in more detail by the applicable prospectus. U.S. Bank's compensation for Plan services includes the Plan Fees and also the compensation received by U.S. Bank directly or indirectly from Funds as a result of the Plan's investment in the Funds, as described in Part A—Fund Selection and Fee Disclosure. Plan Fees may be affected by amounts received by U.S.Bank from the Funds because these amounts may reduce Plan Fees that would otherwise be charged by U.S. Bank. Amounts received by U.S. Bank directly or indirectly from Funds vary among the Funds and Funds'share classes. Therefore,selections among Funds and share classes may affect the amount of Plan Fees. Pending Transaction Fees. U.S. Bank or its agent (the "Financial Institution") may hold cash awaiting either investment or distribution to participants or other proper recipients, including beneficiaries, in a non-interest bearing account in the Financial Institution's banking department and,thereby,earn and retain the"float"as part of its compensation for servicing the Plan. For cash awaiting investment, the float period is generally no longer than one business day following the receipt by the Financial Institution of such cash. However,if the Plan sponsor fails to provide adequate information concerning the allocation of contributions or there is no participant investment election, the float period may last until such date as the Financial Institution receives clear, comprehensive directions(in accordance with applicable trading deadlines)as to how such cash should be allocated and invested. For distributions made from the Plan,the float period commences on the date the check,wire transfer,or electronic transfer is issued to the participant or beneficiary (or other proper recipient) and ends on the date the check is presented to the Financial Institution for payment and settles or wire or electronic transfer is accepted by the receiving institution. The time period involved varies for each payment issued,though the average time such payments remain outstanding is one to 15 days from the date of issuance. Float earnings on cash pending investment or allocation and earnings on uncashed checks, pending wire transfers, and pending electronic transfers are generally at no more than the"fed funds"rate of interest applicable during the period involved. Applicable fed funds rates can be obtained upon request from your account representative or can be found in the Wall Street Journal. U.S.Bank's Provision of Services. Services to the Plan and Funds may be provided by U.S. Bank directly or through one or more of its affiliates, including any subsidiary or affiliate of U.S. Bancorp. In particular, U.S. Bank's affiliate, Quasar Distributors, LLC, a registered broker-dealer,or another affiliate,may provide brokerage and other services to the Plan,including effecting transactions in the Funds. U.S. Bank may also engage third parties to assist it in the provision of Plan services, including BISYS Retirement Services, LP ("BISYS"), which provides certain plan and participant recordkeeping services, and Fidelity Brokerage Services LLC and National Financial Services LLC (together, "Fidelity"), which provide certain brokerage and transaction processing services in connection with the Plan. U.S. Bank may change its arrangements for the provision of Plan services from time to time, including its engagement of any of its affiliates, BISYS, or Fidelity. U.S. Bank is solely responsible for compensating its affiliates and any third parties, and U.S. Bank may pay such compensation from amounts U.S. Bank receives from the Plan and directly or indirectly from SHARES OF MUTUAL FUNDS AND COLLECTIVE TRUST FUNDS ARE NOT DEPOSITS OR OBLIGATIONS OF, OR GUARANTEED BY,ANY BANK, INCLUDING U.S. BANCORP AFFILIATE BANKS, NOR DOES THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL RESERVE BOARD,OR ANY OTHER AGENCY INSURE THEM. INVESTMENT IN MUTUAL FUNDS OR COLLECTIVE TRUST FUNDS INVOLVES INVESTMENT RISKS,INCLUDING POSSIBLE LOSS OF PRINCIPAL,DUE TO FLUCTUATIONS IN EACH FUND'S NET ASSET VALUE. Fee Disc./Auth.—FORM D—Directed—Participant Direction 2.15.06 Page 4 of 6 U.S.Bank Fee Disclosure and Authorization Funds. The Plan's fees do not change based on U.S. Bank's decision to engage affiliates or third parties in connection with the Plan services. Additional information concerning U.S. Bank's compensation is available on request to your account representative, including an estimate of the annual amounts U.S.Bank receives in connection with the Plan's investment in the Funds. SHARES OF MUTUAL FUNDS AND COLLECTIVE TRUST FUNDS ARE NOT DEPOSITS OR OBLIGATIONS OF, OR GUARANTEED BY,ANY BANK, INCLUDING U.S. BANCORP AFFILIATE BANKS, NOR DOES THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL RESERVE BOARD,OR ANY OTHER AGENCY INSURE THEM. INVESTMENT IN MUTUAL FUNDS OR COLLECTIVE TRUST FUNDS INVOLVES INVESTMENT RISKS,INCLUDING POSSIBLE LOSS OF PRINCIPAL,DUE TO FLUCTUATIONS IN EACH FUND'S NET ASSET VALUE. Fee Disc./Auth.—FORM D—Directed—Participant Direction 2.15.06 Page 5 of 6 U.S. Bank Fee Disclosure and Authorization C. APPROVAL AND AUTHORIZATION Changes This Fee Disclosure and Authorization may be amended from time to time in writing by the parties, or U.S. Bank may propose changes in writing,including any change in fees,or adding,deleting,or substituting any Funds(both proprietary and non-proprietary) on the Fund Schedule,by written notice to the Independent Fiduciary at least 30 days before any change. If the Independent Fiduciary does not object in writing before the change is to be effective in accordance with U.S. Bank's written notice, U.S. Bank shall implement the proposed change as a direction of the Independent Fiduciary. Shareholder Communications Act In providing services to the Plan, U.S. Bank may become the record holder, on behalf of the Plan, of securities covered by the Shareholder Communications Act of 1985, as amended(the "SCA"). The SCA requires U.S. Bank to make an effort to permit direct communications between the issuer of such securities and the beneficial owner of such securities. Unless the Independent Fiduciary specifically directs U.S.Bank in writing not to release the Plan's name, address,and security position to requesting issuers,U.S. Bank is required by law to disclose the Plan's name and address to such issuers. The Independent Fiduciary may direct U.S. Bank not to release such information by checking the box labeled"no"below. If the Independent Fiduciary checks the box marked"yes," or fails to check either box,such information will be released to requesting issuers. ❑ No,U.S.Bank may not release the Plan's name and address to requesting issuers. ❑ Yes,U.S.Bank may release the Plan's name and address to requesting issuers. Acknowledgement The Independent Fiduciary(or the Independent Fiduciary's authorized representative)hereby confirms and acknowledges that it: o is independent of U.S.Bank and its affiliates and possesses authority to act as a fiduciary under the Plan; o has designated the Funds by share class that will be available for Plan investment; o has received, read, and understands the prospectuses or summary description documents of the First American Funds and other Funds designated in Part A—Fund Selection and Fee Disclosure; o understands and approves the total fees the Plan pays, including(a)the Fund Fees the Plan pays as an investor in the Funds up to the total annual operating expense as disclosed in the applicable prospectuses or summary description documents, (b)Plan Fees paid directly to U.S. Bank, (c) "float" retained by U.S. Bank as compensation for Plan services, and (d)compensation received by U.S.Bank directly or indirectly from the Funds;and o agrees that a failure to object to an addition,deletion,or substitution of the Funds available for Plan investment or a change in the Plan Fees or Fund Fees may be treated as the Independent Fiduciary's direction,unless the Independent Fiduciary objects in writing before the effective date of such change. The Independent Fiduciary approves the Plan's fees and services in accordance with the disclosures provided herein. Independent Fiduciary Authorization Plan Name: City of Eden Prairie VEBA Health Savings Plan Authorized Signature: Name(Print or Type): Title: Date: SHARES OF MUTUAL FUNDS AND COLLECTIVE TRUST FUNDS ARE NOT DEPOSITS OR OBLIGATIONS OF, OR GUARANTEED BY,ANY BANK, INCLUDING U.S. BANCORP AFFILIATE BANKS, NOR DOES THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL RESERVE BOARD,OR ANY OTHER AGENCY INSURE THEM. INVESTMENT IN MUTUAL FUNDS OR COLLECTIVE TRUST FUNDS INVOLVES INVESTMENT RISKS,INCLUDING POSSIBLE LOSS OF PRINCIPAL,DUE TO FLUCTUATIONS IN EACH FUND'S NET ASSET VALUE. Fee Disc./Auth.—FORM D—Directed—Participant Direction 2.15.06 Page 6 of 6 RETIREMENT ENHANCEMENT AND BENEFIT ALTERNATIVES VOLUNTARY EMPLOYEES' BENEFICIARY ASSOCIATION BASIC PLAN ADOPTION AGREEMENT FOR CITY OF EDEN PRAIRIE This Adoption Agreement plus the Retirement Enhancement and Benefit Alternatives Voluntary Employees' Beneficiary Association Basic Plan Document, as amended from time to time ("Basic Plan Document"), constitute the Plan for the Adopting Employer. This is the Adoption Agreement referred to in the Basic Plan Document. GENERAL INFORMATION ADOPTING EMPLOYER INFORMATION: Employer Name: City of Eden Prairie Address: 8080 Mitchell Road City, State Zip: Eden Prairie, MN 55344-4485 Phone/Fax Number: 952-494-8300 / 952-949-8589 Tax Identification Number: 41 - 855460 Contact Person: Name: Karen Kurt (person authorized Title: HR Manager to make plan level decisions,sign Address: 8080 Mitchell Road forms,and receive City, State Zip Eden Prairie, MN 55344-4485 plan level correspondence) Phone/Fax No.: 952-494-8300 / 952-949-8589 Email Address: kkurt@edenprairie.org EMPLOYEES AND/OR PARTICIPANTS: There were more than fifty (50) Employees in the last twelve months? Z Yes ❑ No There were more than twenty (20) Employees in the last calendar year? ❑ Yes ❑ No Check the one that applies (check only one box): ❑ The Plan benefits active Employees only. ❑ The Plan benefits terminated Employees only. ® The Plan benefits both active Employees and terminated Employees. MISCELLANEOUS Name of Plan: City of Eden Prairie VEBA Health Saving Plan Addendum(s) Attached: ❑ Yes ® No Joint Powers Agreement Attached: ® Yes ❑ No © HaynesHitesman, PC 2006 Page 1 REBA VEBA(2006)) General Information BASIC PLAN DOCUMENT ADOPTION AGREEMENT ARTICLE I: INTRODUCTION Effective date means: June 1, 2007 (month,day,year) Original effective date: June 1, 2007 (month,day,year) Restatement date (date this Adoption Agreement is effective): N/A (month,day,year) ARTICLE II: DEFINITIONS 2.8 Dependent means: ® "Dependent"for purposes of Section 152 of the Code. ❑ Other (Describe): Note: Dependent cannot be defined more broadly than "dependent"for purposes of Section 152 of the Code. 2.12 Entry Date means: ® Date Employee becomes eligible to participate. ❑ Other (Describe): 2.15 Health Care Expense means: ® Maximum permitted by law. ❑ An expense which but for the deductible under a specified group medical coverage sponsored by the Adopting Employer, would have been paid by that group medical coverage. Specified group medical coverage: ❑ Other (Describe): Note: Health Care Expense cannot be defined more broadly than the description in IRS Revenue Ruling 2002-41 and IRS Notice 2002-45. If the definition is different for Participants once they terminate employment, complete again: ® N/A—definition does not change. ❑ Maximum permitted by law. ❑ An expense which but for the deductible under a specified group medical coverage sponsored by the Adopting Employer, would have been paid by that group medical coverage. Specified group medical coverage: ❑ Other (Describe): 2.25 Plan Year is: June 1 through May 31 (month,day of beginning and end of Plan Year) 2.25 The initial "short"Plan Year is: N/A (month,day,year) ©HaynesHitesman, PC 2006 Page 2 REBA VEBA(2006) 2.30 Spouse means: ® An individual who is legally married to a Participant and who is treated as a"spouse" under the Code. ❑ Other (Describe): Note: Must be more restrictive than Code. 2.31 Trust means (check all that apply): ❑ Retirement Enhancement and Benefit Alternatives Voluntary Employees' Beneficiary Association Trust ("REBA Trust I") ❑ Retirement Enhancement and Benefit Alternatives Voluntary Employees' Beneficiary Association Trust II ("REBA Trust II") ® Retirement Enhancement and Benefit Alternatives Voluntary Employees' Beneficiary Association Trust III ("REBA Trust III") ARTICLE IV: ELIGIBILITY AND PARTICIPATION OF EMPLOYEES 4.1 Eligibility requirements are as follows (check and complete only those that apply): ❑ Age (Describe): ❑ Length of Service (Describe): ❑ Employment Classification (e.g., union, part-time, full-time) (Describe): ® Coverage under a specified group medical (Describe): Covered under a high deductible medical plan sponsored by the Adopting Employer(the"HD Plan"), as determined by the Adopting Employer from time to time. ❑ Other (Describe): 4.4 Termination of Contributions: ® As provided in the Basic Plan Document ❑ Other (Describe): 4.5 Termination of Participation: ® As provided in the Basic Plan Document ❑ Other (Describe): ARTICLE V: BENEFITS UNDER THE PLAN 5.2 Claims deadline: 365 days from the date the Health Care Expense was incurred. ©HaynesHitesman, PC 2006 Page 3 REBA VEBA(2006) 5.4 Timing of Reimbursement: Z As provided in the Basic Plan Document - Semi-monthly (24 per year) ❑ Monthly (12 per year) ❑ Other (Describe): 5.6(a) Post-termination Access: ® As provided in the Basic Document (i.e., spend down in lieu of COBRA) ❑ Other (Describe): 5.6(b) Post-death Access by Spouse & Dependents: ® As provided in the Basic Document (i.e., spend down in lieu of COBRA) ❑ Other (Describe): 5.8 Use of forfeitures: ❑ Pay administrative costs which would otherwise be paid from the Trust (i.e., Participants' HC Account balances). ® At the close of the Plan Year in which such forfeitures occur, contributed to the HC Accounts of all Participants employed by the Adopting Employer on the last day of such Plan Year on a per capita basis. ❑ Other (Describe): Note: Under no circumstances will the amounts revert to the Adopting Employer. 5.11 Which plan pays first: ❑ This Plan ® Flex plan sponsored by the Adopting Employer. ❑ Other (Describe): Note: The choice of which plan pays first cannot be left to the Participant. 5.12(d) Other Limitations, if any: None ARTICLE VI: CONTRIBUTIONS 6.1 Employer Contribution amount, timing, restrictions (checkall that apply): One Time Contribution: ® Fixed dollar amount $300.00 for Participants with single coverage under the HD Plan; $450.00 for Participants with single +1 coverage under the HD Plan; and $570.00 for Participant with family coverage under the HD Plan. ❑ Fixed formula (Describe): ❑ Restrictions, if any (Describe): Contributed on (Identify Date): June 1, 2007 ©HaynesHitesman, PC 2006 Page 4 REBA VEBA(2006) Recurring Contributions: ❑ Fixed dollar amount $50.00 for Participants with single coverage under the HD Plan; $75.00 for Participants with single +1 coverage under the HD Plan; and $95.00 for Participant with family coverage under the HD Plan. ❑ Per pay period • Per month ❑ Per quarter ❑ Per year ❑ Other (Describe): • Restrictions, if any (Describe): Monthly contributions to begin in December, 2007. ❑ Fixed formula (Describe): ❑ Per pay period ❑ Per month ❑ Per quarter ❑ Per year ❑ Other (Describe): ❑ Restrictions, if any (Describe): ❑ Annual Contribution of Accumulated Paid Time Off, Vacation, or Sick Leave (Describe): ❑ Contribution of Accumulated Paid Time Off, Vacation, or Sick Leave Upon Termination of Employment (Describe): 6.1 Availability for reimbursement of HC Account balance: ❑ As soon as deposited ❑ Upon termination of employment ❑ Other (Describe): Notwithstanding the foregoing, if a Participant who is not a Highly Compensated Individual incurs a Health Care Expense(s) that exceeds the balance of his/her HC Account,the Adopting Employer may in its discretion advance all or a portion of remaining Employer Contribution for the current Plan Year in an amount sufficient to reimburse such Health Care Expense(s). © HaynesHitesman, PC 2006 Page 5 REBA VEBA(2006) 6.3 Direction of Investments: ❑ Adopting Employer • Participant ❑ Other (Describe): 6.3 Assets of the Plan shall be held as follows: ❑ All assets held in the REBA Trust I ❑ All assets held in the REBA Trust II ® All assets held in the REBA Trust III ❑ Assets of the Plan as of the effective date of the restatement of the Plan (as indicated in Article I shall be held in the [REBA Trust I] [REBA Trust II] until such assets are exhausted; all contributions to the Plan following such restatement date shall be held in the REBA Trust III. ARTICLE XI: GENERAL PROVISIONS 11.6 Reasonable fees of Plan Supervisor shall be paid as follows: ® Fixed fees shall be charged to the Plan and paid from the general assets of the Adopting Employer (billed to the Adopting Employer); asset-based fees shall be charged to the Participant and paid from the Participant's HC Account. ❑ All fees shall be charged to the Plan and paid from the general assets of the Adopting Employer (billed to the Adopting Employer). ❑ All fees shall be charged to the Participant and paid from the Participant's HC Account. ❑ Other (Describe): If the payment is different for Participants once they terminate employment, complete again: ❑ Fixed fees shall be charged to the Plan and paid from the general assets of the Adopting Employer (billed to the Adopting Employer); asset-based fees shall be charged to the Participant and paid from the Participant's HC Account. ❑ All fees shall be charged to the Plan and paid from the general assets of the Adopting Employer (billed to the Adopting Employer). ® All fees shall be charged to the Participant and paid from the Participant's HC Account. ❑ Other (Describe): 11.6 Reasonable fees of Trustee shall be paid as follows: ® Fixed fees shall be charged to the Plan and paid from the general assets of the Adopting Employer; asset-based fees, if any, shall be charged to the Participant and paid from the Participant's HC Account. ❑ All fees shall be charged to the Plan and paid from the general assets of the Adopting Employer. ❑ All fees shall be charged to the Participant and paid from the Participant's HC Account. ❑ Other (Describe): 11.7 Governing law—State of Minnesota _ (only list one state) ©HaynesHitesman, PC 2006 Page 6 REBA VEBA(2006) ACKNOWLEDGEMENTS 1. Pursuant to Section 2.8(a), any collectively bargained Employees participating in this Plan participate because the collective bargaining agreement provides for coverage under this Plan. 2. This Plan has been duly adopted or authorized to be adopted by the Adopting Employer's Managing Body. 3. This Plan is a "covered entity"for purposes of the Privacy Rules and Security Rules under the Health Insurance Portability and Accountability Act (HIPAA). 4. The Adopting Employer has read and agrees to the terms of the trust agreement(s) for the Trust(s) designated in Sections 2.28 and 6.3 of this Adoption Agreement. ADOPTING EMPLOYER: CITY OF EDEN PRAIRIE Date: By: Its: ©HaynesHitesman, PC 2006 Page 7 REBA VEBA(2006) ADMINISTRATION AGREEMENT Effective July 1, 2006 between Genesis Employee Benefits, Inc. d/b/a America's VEBA Solution ("Plan Supervisor") and Plan Administrator of the Retirement Enhancement and Benefit Alternatives VEBA Plan ("Plan Administrator") WHEREAS, certain public sector employers ("Members") have collectively established a comprehensive integrated program under which the employers and collective bargaining units can negotiate for a variety of benefits for employees; and WHEREAS, such comprehensive program, known as the Retirement Enhancement and Benefit Alternatives Program (the "REBA Program"), exists to provide the Members with a cost effective vehicle through which to offer benefits to their employees; and WHEREAS, the Members have heretofore adopted the Retirement Enhancement and Benefit Alternatives VEBA Plan (the "Plan"); and WHEREAS, the Plan appoints Plan Administrator (the "Plan Administrator") to act on behalf of the Plan; and WHEREAS, the Plan Administrator is also the governing body of the REBA Program authorized to act on behalf of the Members; and WHEREAS, the Members are governmental entities and, therefore, the Plan is not an employee welfare benefit plan subject to the Employee Retirement Income Security Act of 1974 ("ERISA"); and WHEREAS, the Plan is a "covered entity" subject to the privacy and security provisions of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"); and WHEREAS, the Plan Administrator is the entity capable of acting on behalf the Plan for purposes of HIPAA; and WHEREAS, the Plan Supervisor performs services (directly and indirectly) with respect to operating and administering programs of the type of the REBA Program; and © HaynesHitesman, PC 2006 1 REBA VEBA III(July 1, 2006) WHEREAS, the Plan Administrator previously entered into two Administration Agreements with the Plan Supervisor, effective April 1, 2004, and January 1, 2005; and WHEREAS, the benefits under the Plan for employees of the Members will be funded through one or more of the following: the Retirement Enhancement and Benefit Alternatives VEBA Trust, the Retirement Enhancement and Benefit Alternatives VEBA Trust II, and/or the Retirement Enhancement and Benefit Alternatives VEBA Trust III; and WHEREAS, the Plan Administrator and Plan Supervisor wish to enter a new agreement with respect to the operation and administration of the Plan and the Trusts for those Members who will be participating in the Retirement Enhancement and Benefit Alternatives VEBA Trust III; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and the exhibits and addenda, if any, attached hereto, the Members, Plan Administrator, and the Plan Supervisor hereby agree as follows: I. Definitions The following Definitions shall apply to this Agreement: A. Administrative Services - means those services relating to the establishment, maintenance, administration, and recordkeeping of the Plan and the Trusts to be performed by the Plan Supervisor as set forth in this Agreement. B. Agreement - means this Administration Agreement and any exhibits and addenda attached hereto and any outside agreements specifically incorporated by reference. C. Code - means the Internal Revenue Code of 1986 and regulations thereunder, as amended from time to time. D. COBRA - means the Consolidated Omnibus Budget Reconciliation Act of 1985 (as it appears in the Public Health Services Act) and regulations thereunder, as amended from time to time. E. Covered Individual — means an individual who is participating in the Plan, including those on continuation coverage required under COBRA. F. Effective Date - means the date upon which this Agreement is first effective, July 1, 2006. © HaynesHitesman, PC 2006 2 REBA VEBA III(July 1, 2006) G. ERISA - means the Employee Retirement Income Security Act of 1974 and regulations thereunder, as amended from time to time. H. HIPAA - means the Health Insurance Portability and Accountability Act of 1996 and regulations thereunder, as amended from time to time. I. Members — means the employers who have adopted the Plan. J. Participant — means an employee or former employee of a Member participating in the Plan. K. Plan - means the written document required under Section 105 of the Code. It consists of the Plan Document and the Trust Document. L. Plan Administrator — means the entity as defined in the Plan. M. Plan Document — means the document known as the Retirement Enhancement and Benefit Alternatives VEBA Plan, as amended from time to time. N. Plan Supervisor — means Genesis Employee Benefits, Inc. d/b/a America's VEBA Solution ("AVS"), an independent contractor designated to perform certain administrative services pursuant to this Agreement with respect to the Plan and Trusts. O. PHI — means Protected Health Information for purposes of HIPAA. P. Summary Description — means the written document distributed directly or indirectly to Covered Individuals explaining the Plan. Q. Trusts — means the Retirement Enhancement and Benefit Alternatives VEBA Trust, the Retirement Enhancement and Benefit Alternatives VEBA Trust II, and the Retirement Enhancement and Benefit Alternatives VEBA Trust III. R. Trust Document — means the document by which the Trusts were established. II. Plan Establishment & Maintenance A. Generally. Members shall establish the Plan. The Plan Administrator shall be responsible for the operation and administration of Plan. In accordance with this Agreement, the Plan Supervisor shall provide administrative services to Members and Plan Administrator in connection with the establishment, operation, and administration of the Plan. This Agreement shall only govern Plan Supervisor's services provided with ©HaynesHitesman, PC 2006 3 REBA VEBA III(July 1, 2006) respect to that portion of the Plan funded through the Trust and shall not amend or otherwise impact the Administration Agreement between the Plan Supervisor and Plan Administrator regarding services provided with respect to the portion of the Plan funded through any other trust, including, but not limited to, the Retirement Enhancement and Benefit Alternatives Voluntary Employees' Beneficiary Association Trust. B. Documents. Members and Plan Administrator shall have ultimate responsibility for all aspects of the Plan documentation, including, but not limited to, the Plan Document, Trust Document, Summary Description, Plan and Trust amendments, Summary Description updates, and the application for tax-exempt status (IRS Form 1024). The Plan Supervisor shall provide the Members with services related to the initial preparation and periodic revision of the Plan Document, Trust Document, Summary Description, IRS Form 1024, and related documentation. Members and Plan Administrator shall approve all such materials within thirty (30) days following delivery by the Plan Supervisor, unless such deadline is extended by mutual agreement of all parties. Members' and Plan Administrator's failure to object within such time period (including any agreed upon extension period) shall constitute approval. Unless Members, Plan Administrator and the Plan Supervisor mutually agree otherwise, the Plan Administrator shall deliver to all Covered Individuals all appropriate and necessary documents and materials, including, but not limited to, the Plan Document, Trust Document, Plan and Trust amendments, Summary Descriptions, enrollment forms, and application and notice forms, as may be necessary for the operation of the Plan or to satisfy the requirements of state or federal laws and regulations. C. Plan Amendment & Termination. The Plan Document and/or Trust Document may be amended or terminated in accordance with the provisions of the Plan and Trust, respectively. If the Members amend the Plan Document or the Trust Document, the Plan Administrator agrees to notify the Plan Supervisor (1) before the later of the effective date of the amendment or the date of adoption of the amendment, or (2) as soon as administratively feasible. The Plan Supervisor is responsible for providing any additional services required by such amendment only upon its consent, which shall be evidenced by an amendment to this Agreement. Such consent shall not be unreasonably withheld but may be conditioned upon Member's agreement to pay increased administrative fees. III. Plan Supervisor Responsibilities A. Status of the Plan Supervisor. Members shall not (1) name the Plan Supervisor as the Plan Administrator in any documents applicable to the Plan, nor (2) hold out to other parties or third parties that the Plan ©HaynesHitesman, PC 2006 4 REBA VEBA III(July 1, 2006) Supervisor serves in any of the foregoing capacities. In addition, the Plan Supervisor does not intend to assume any of the administrative duties or responsibilities commensurate with such designations. B. Capacity of Plan Supervisor. In fulfilling its duties and obligations under this Agreement, the Plan Supervisor: (1) shall act as the administrative agent of the Plan; (2) does not intend to be a Member or Plan Administrator (as such terms are defined under the Plan) of the Plan or with respect to the Plan assets; and (3) does not have any discretionary authority, control, or responsibility with respect to administration of the Plan or the Trusts or with respect to conformity of the Plan or the Trusts with any applicable federal or state law. In addition, the Plan Supervisor shall not be required to participate in or act in a manner that aids or assists a breach of a fiduciary's duty. C. Processing of Claims. Subject to Article IV and Section VI.C., the Plan Supervisor shall process, adjust, and settle claims of Covered Individuals received by the Plan Supervisor for benefits under the Plan in accordance with the terms and conditions of the Plan. The Plan Supervisor shall deliver to all Covered Individuals the claim forms necessary for making claims. Where the terms and conditions of the Plan are not clear, the Plan Supervisor reserves the right to request direction from the Plan Administrator. When a claim is approved, the Plan Supervisor or its designee shall provide instructions to the trustee or its designee, in accordance with any contract or agreement between the trustee and the Plan Administrator, directing the trustee to pay benefits from the Trust. D. Account Servicing. The Plan Supervisor shall provide account management services. The Plan Supervisor shall make available to the Members a client service representative to respond to questions regarding general administrative issues and plan design. E. Employee Communication. The Plan Supervisor shall provide standard communication materials to Participants as agreed upon by the parties. The Plan Supervisor shall provide general administrative services to assist persons with general information about the Plan and answer routine questions from persons concerning coverage status, claims status, complaint administration, and other inquiries related to the Plan. The Plan Supervisor shall: (i) be under no obligation to meet with individual plan participants regarding their claims; and (ii) not offer any investment or securities advice to any Participant. F. Recordkeeping. With respect to the Retirement Enhancement and Benefit Alternatives VEBA Trust III, the Plan Supervisor shall perform the ©HaynesHitesman, PC 2006 5 REBA VEBA III(July 1, 2006) recordkeeping services described herein in conformity with data provided by the Plan Administrator. 1. The Plan Supervisor will maintain records of the allocations of the Plan's account by Participant and contribution type for each investment fund selected by the Participant or the Member, as applicable. 2. The Plan Supervisor will perform calculations of allocations of each Member's contributions and earnings according to the direction and information requested from and provided by the Member. 3. If applicable, the Plan Supervisor will perform allocation of existing account balances into investment funds according to directions from Participants provided in accordance the procedures established by the Plan Supervisor. Such transactions will be processed each business day as requested by Participants and in accordance with the Plan Supervisor's procedures. G. Accountings. At such regular periodic intervals as Plan Administrator and the Plan Supervisor agree upon and specify in Exhibit A, the Plan Supervisor shall provide the Plan Administrator with reporting regarding the Plan and the Trusts. H. Participant Access to Information. The Plan Supervisor shall provide Participants with "24 hour" access to the recordkeeping system through a voice response system ("VRS") and website connection, but does not guarantee immediate or uninterrupted access at any time. The Plan Supervisor will use reasonable efforts to keep the VRS and the website properly maintained, but cannot be held responsible for circumstances beyond its reasonable control such as, but not limited to, telephone lines going down, natural disasters, damage resulting from unauthorized use of a Participants personal identification number, or failure of the system for any other reason outside of the Plan Supervisor's control. The Plan Supervisor shall also provide Participants with account statements at least annually. Such statements shall be provided directly to the Plan Administrator for distribution to the Participants. I. Assistance in Reporting and Compliance. The Plan Supervisor shall, based on information it may possess, use its best efforts to prepare IRS Form 990, subject to review by the Plan Administrator as provided in Section IV.M. of this Agreement. The Plan Supervisor shall not have any responsibility related to the preparation of any other tax return, report or other document required by any local, State or Federal government or agency thereof with respect to the Plan. The responsibility for filing and/or ©HaynesHitesman, PC 2006 6 REBA VEBA III(July 1, 2006) distributing IRS Form 990, and all other tax returns, reports, or other documents shall be that of the Plan Administrator. The Plan Supervisor may assist Plan Administrator or Members with other reporting requirements, if this option is chosen by Plan Administrator or a Member as an optional service (as listed in Exhibit B). J. Nondiscrimination Testing. If chosen by a Member as an optional service (as listed in Exhibit B), the Plan Supervisor shall perform all nondiscrimination tests that may be required under the Code, including, but not limited to, tests regarding coverage and benefits, and shall verify the classes of highly compensated employees and non-highly compensated employees with the Member. The Member shall provide all information necessary to complete such testing. Should the Plan fail any applicable nondiscrimination tests, the Plan Supervisor may provide suggestions (consistent with the Plan language) regarding how to correct the situation. The responsibility for making a decision regarding how to correct the situation shall be that of the Plan Administrator and/or the Member. K. Compliance with Applicable Law. The Plan Supervisor shall comply with applicable federal and state laws and regulations applicable to the Plan Supervisor's responsibilities under this Agreement. L. Insurance. The Plan Supervisor shall maintain professional liability and errors and omissions insurance in the amount of $2,000,000.00. M. Subcontractors. The Plan Supervisor may hire subcontractors to perform any of the services required of it under this Agreement and to act as its designee for purposes of this Agreement. N. Investments. The Plan Supervisor shall not be responsible for, and shall not take part in, selecting or recommending investments available to the Plan or the Participants. 0. Shareholder Communications. Plan Supervisor will cause all proxies and accompanying materials solicited by an entity, and all prospectuses issued by a company whose securities are held in the Trusts ("shareholder communications") to be mailed to the Plan Administrator, or its designee, within a reasonable period of time after the receipt of such shareholder communications by Plan Supervisor. In the event a Participant makes a request to the Plan Supervisor for a copy of any shareholder communication, the Plan Supervisor shall forward such request, within a reasonable time period, to the Member who shall be responsible for responding to such request. Plan Supervisor has no responsibility to disseminate copies of shareholder communications to Participants who ©HaynesHitesman, PC 2006 7 REBA VEBA III(July 1, 2006) have invested their accounts in the securities for which such shareholder communications have been received or to any other person. If the shareholder communications include a requirement, request, or opportunity for action (such as a proxy, consent, election, instruction, direction, approval, or similar action) (the "Proxies"), the Members and/or the Plan Administrator will solely be responsible for soliciting and forwarding proxy votes in accordance with the Plan Document and the requirements of the law. In no case will Plan Supervisor be under any duty to determine how, or if, Proxies are voted or to take any other action in connection with any shareholder communication. Plan Supervisor will be under no obligation to forward or return any other corporate material received on behalf of the Trust unless required by law or this paragraph. IV. Duties of Members and Plan Administrator A. FMLA Determinations. The Members shall make determinations regarding FMLA, including, but not limited to, whether FMLA applies. The Plan Supervisor shall not make determinations regarding FMLA. Furthermore, the Plan Supervisor shall be entitled to rely upon the information provided by the Members and is under no obligation to independently verify such information. B. Eligibility Determination & Information. The Members shall, in a mutually agreed format, provide the Plan Supervisor with a listing of all persons eligible for coverage under the Plan, with a list of all eligible participants who are "claims active" (i.e., are entitled to have claims reimbursed), a list of all eligible participants who are not claims active, and written notice of any addition or deletion of such persons. In addition, the Members shall, in a mutually agreed format, provide the Plan Supervisor with such Covered Individual contribution information on a periodic basis as is reasonably required by the Plan Administrator in order to perform its duties hereunder. The Plan Supervisor may rely on the most current information in its possession regarding eligibility of a Covered Individual in paying claims and providing other services under this Agreement including but not limited to nondiscrimination testing. C. Contributions. The Members shall remit contributions to the Trust as provided in the Plan. As contributions are made, the Members shall, in a mutually agreed format, provide the Plan Supervisor with such Participant contribution information as is reasonably required by the Plan Supervisor in order to perform its duties hereunder, including, but not limited to, the amount of the contribution to be allocated to each participant. The Members are responsible for the accuracy and completeness of the data they submit to the Plan Supervisor and are solely responsible for any adverse consequences that may result from errors or inaccuracies in such ©HaynesHitesman, PC 2006 8 REBA VEBA III(July 1, 2006) data. The Plan Supervisor is not responsible for requiring that any contributions be made, or for determining that the contributions that are received by the Trusts comply with the terms of the Plan. D. Medical Support Order Compliance. Members shall be responsible for all aspects of compliance with state law and the Child Support Performance and Incentive Act of 1998 regarding medical child support orders. Members shall provide notice to the Plan Supervisor of any Participants who become covered under the Plan by virtue of a medical child support order and of any Participants who cease to be covered under the Plan by virtue of the expiration of a medical child support order. The Plan Supervisor shall be entitled to rely upon the information provided by the Members pertaining to such medical child support order. E. Nondiscrimination Testing. Unless otherwise agreed by the parties, the Members and the Plan Administrator are responsible for performing any nondiscrimination tests that may be required under the Code, including, but not limited to, tests regarding coverage and benefits. Should the Plan fail any applicable nondiscrimination tests, the Plan Supervisor may provide suggestions (consistent with the Plan language) regarding how to correct the situation. The responsibility for making a decision regarding how to correct the situation shall be that of the Members or Plan Administrator. F. Payment of Administrative Services Fees. In consideration of Plan Supervisor's performance of the services described in this Agreement, the Members and/or the Plan Administrator shall pay Plan Supervisor's administrative fees as described in Exhibit B. All such fees shall be paid as provided in the Plan. 1. Payment by Participants. If the Plan provides that administrative fees for employees shall be paid from the Trusts (including from a Participant's account), the Plan Supervisor shall bill the Trust and/or the Participants' accounts directly as the fees become due. If the Plan provides that the administrative fees for a Participant who has terminated employment with the Plan Administrator shall be paid from the Participant's account, the Plan Supervisor shall bill the Participant's account every six (6) months (in January and July) on a prospective basis (i.e., the January billing shall cover January through June). If the Participant terminates employment after the regularly scheduled billing dates (i.e., in January and July), the first billing for that Participant shall occur on the date following the date of termination and shall cover the months between that date and the date of the next regularly scheduled billing. ©HaynesHitesman, PC 2006 9 REBA VEBA III(July 1, 2006) 2. Failure to Pay. Any failure to pay any such fees within thirty (30) days of the date upon which they are due may, at the Plan Supervisor's option, result in the Plan Supervisor's (1) imposition of a late fee equal to the lesser of (i) 1.5% of the outstanding balance or $75 per month, whichever is greater, or (ii) the maximum amount allowed by the usury laws of the applicable state, and/or (2) suspension of performance of its services under this Agreement until such time as such fees are paid or termination of this Agreement. 3. Increases. The administrative fees identified in Exhibit B shall increase upon reasonable notice in the event of and in direct proportion to any rate increases implemented by the United States Postal Service. Such increases shall be effective January 1 on or next following the effective date of the postage rate increase. The Plan Supervisor also reserves the right to charge additional fees for repeating, or expanding the scope of, its services due to inaccurate, incomplete, or unusable data supplied by the Members. 4. Fees for Additional Services. In the event additional adjustments that are not part of the normal plan administrative services contemplated by this Agreement are required, Plan Supervisor may charge the Plan Administrator and/or the Members an additional fee commensurate with the additional services provided. Plan Supervisor will inform the Plan Administrator and/or the Members of the amount of the additional fee in advance of conducting the additional administrative services. Examples of additional administrative services not contemplated by this Agreement include (but are not limited to): calculating income on late Participant contributions; calculating income on Participant contributions that are delayed by Member actions; and any other administration services requested by Member that are not part of the on-going administrative services contemplated by this Agreement. G. Fees Payable By Mutual Funds. The Plan Supervisor and its agents may receive compensation from certain mutual funds or their affiliates to cover expenses relating to services that the Plan Supervisor and its agents provide to the funds, including, but not limited to, the purchase and redemption of shares and participant-level fund recordkeeping. This compensation is paid directly to the Plan Supervisor and its agents by the funds pursuant to a services agreement between the Plan Supervisor and its agents and each fund or its affiliate, and the Plan Administrator and Members are not responsible for a direct payment of this compensation. The compensation paid to the Plan Supervisor and its agents by the funds ©HaynesHitesman, PC 2006 I 0 REBA VEBA III(July 1, 2006) is based either on a percentage of the average daily net asset value of shares invested in the fund, or on a set fee per each fund in which a participant invests. The Members may contact the Plan Supervisor to receive more detailed information concerning such compensation, including which funds pay compensation to the Plan Supervisor and its agents and an estimate of how much compensation the Plan Supervisor and its agent may receive or have received during a particular time period. H. HIPAA Portability. Unless mutually agreed otherwise, Plan Supervisor shall not provide any services related to certificates of creditable coverage, including, but not limited to providing certificates of creditable coverage to Covered Individuals upon termination of coverage under this Plan or upon request by a Covered Individual within two (2) years of termination of coverage. I. Regulatory Compliance. Members and Plan Administrator shall be responsible for compliance with applicable laws and regulations pertaining to the Plan. Members and Plan Administrator shall be responsible for any governmental or regulatory charges resulting from the Members' establishment and operation of the Plan. This provision does not relieve the Plan Supervisor from any statutory or agency requirements placed directly on it as a result of performing services under this Agreement. J. Plan Design. Each Member possesses and exercises ultimate authority and responsibility for the design of the Plan. Each Member has consulted its legal and/or accounting advisors concerning the tax advantages and consequences of sponsoring the Plan and the Trusts and shall not rely on the Plan Supervisor for such guidance. K. Plan Interpretation. Plan Administrator possesses and exercises ultimate authority and responsibility for determining benefits under the Plan, making decisions regarding eligibility for participation, termination of participation, and payment of benefits. This includes, but is not limited to, review of claim denials when appealed under the Plan. L. Other Information. The Members or Plan Administrator (including a designee) shall comply with all requests for information made by the Plan Supervisor reasonably necessary for the Plan Supervisor to fulfill its duties under this Agreement. Any documentation received by the Members or Plan Administrator (including a designee) that should have been provided to the Plan Supervisor shall be promptly forwarded to the Plan Supervisor. Such documentation includes, but is not limited to, claims forms. ©HaynesHitesman, PC 2006 1 1 REBA VEBA III(July 1, 2006) M. Review of Reports and Forms. The Plan Administrator and the Members shall be responsible to review all accounting reports, compliance testing, government returns (i.e., Form 990), and any other reports prepared by or on behalf of the Plan Supervisor (collectively the "Reports") and to notify the Plan Supervisor of any errors or omissions in the Reports within thirty (30) days of receipt of them. If no errors or omissions are asserted within thirty (30) days, the Plan Administrator and the Members shall be deemed to have approved the accuracy of the Reports and the Plan Supervisor shall be released and relieved of all liability and indemnified by the Members for any actions taken pursuant to this Agreement based upon the Reports. N. Review of Communication Materials. The Plan Administrator and/or the Members shall review all communication products and materials prepared by the Plan Supervisor to ensure consistency of the materials with the terms of the Plan. 0. Legal Obligations. The Members or Plan Administrator (including a designee), shall possess ultimate responsibility and authority for the operation of the Plan and for its compliance with all applicable laws and regulations pursuant to the provisions of the Plan. Q. Investments. The Members shall be responsible for determining how and with whom to invest the assets of the Trusts attributable to them, including, but not limited to, selecting the investments or menu of investment options, as the case may be. The Plan Administrator shall adopt an investment policy governing the investment of the assets of the Trusts. The Plan Administrator shall be responsible for mailing or otherwise distributing fund prospectuses or other similar information regarding the investments in which the assets of the Trusts are invested to the extent such information is not distributed by the funds or investment providers. The Plan Supervisor shall have no responsibility with respect to the investment of the assets of the Trusts. ©HaynesHitesman, PC 2006 12 REBA VEBA III(July 1, 2006) V. Records & Information A. Maintenance and Access. Members and Plan Administrator shall maintain adequate records relating to the terms and operation of the Plan for at least the Plan Year to which the records relate and for an eight (8) year period thereafter. Each party shall have access to the records relating to the Plan and the Trusts maintained by the other party during normal business hours and upon reasonable notice and request and subject to applicable laws and regulations. The parties shall maintain the confidentiality of any information relating to Participants, the Plan, and the Trusts in accordance with applicable laws and regulations. B. Record Use. The Plan Supervisor, Members and Plan Administrator agree that the medical records, names, addresses, telephone numbers, Social Security numbers and other personal information relating to Covered Individuals, which the Plan Supervisor may obtain as a result of performing administrative services may be collected, maintained and used by the Plan Supervisor and the Plan Administrator as necessary to administer the Plan. The Plan Supervisor and the Plan Administrator may use patient specific and individually identifiable information, as necessary to properly administer the Plan, to defend any claim related to the Plan or to the provision of services under this Agreement, or as otherwise may be permitted by state or federal law. All parties agree that such information shall be considered confidential and protected as required under applicable law. C. Confidential Business Information. The Plan Supervisor, Members, and Plan Administrator shall each take all necessary steps to protect the other party's confidential business information. Such information shall not be disclosed to third parties without the express written consent of the other party unless required by law or court order. D. Transfer of Records. When this Agreement ends, the Plan Supervisor may transfer to Members, Plan Administrator and/or any successor administrator those records the Plan Supervisor determines are reasonably necessary to effectuate a smooth transition of administration of the Plan and any other records the Plan Supervisor possesses that relate to the Plan. The Plan Supervisor intends that this transfer of records will satisfy its obligation to maintain such records as described above. The Plan Supervisor shall provide the Plan Administrator an opportunity to review the records and obtain copies of any such records in addition to the records the Plan Supervisor has identified as necessary for a smooth transition or otherwise transferred. The details of such transfer, including but not limited to the means, method and timing, shall ©HaynesHitesman, PC 2006 13 REBA VEBA III(July 1, 2006) be agreed to by the parties. All costs associated with such a record review and transfer will be paid by the Members. E. HIPAA Business Associate. The Plan Supervisor acknowledges its role as a business associate for purposes of the privacy standards under HIPAA. Exhibit C reflects the business associate contractual requirements. VI. Indemnification and Limitation of Liability A. Plan Supervisor Indemnification. The Plan Supervisor agrees to indemnify and hold harmless the Members and Plan Administrator from any and all claims, losses, and expenses, including but not limited to attorney's fees, incurred by the Members and/or Plan Administrator as a result of the Plan Supervisor's (or the Plan Supervisor's designees') gross negligence, willful misconduct, fraud, criminal conduct or breach of this Agreement. B. Members and Plan Administrator Indemnification. Excepting gross negligence, willful misconduct, fraud, criminal conduct or breach of this Agreement by the Plan Supervisor, Members agree to hold the Plan Supervisor and the Plan Supervisor's subcontractors harmless from, and indemnify the Plan Supervisor and the Plan Supervisor's subcontractors against, any and all claims, losses, and expenses, including attorney's fees, taxes, and penalties (except taxes on the Plan Supervisor's income), incurred by the Plan Supervisor and the Plan Supervisor's subcontractors and arising out of its performance of services under this Agreement. C. Limitation of Liability. The Plan Supervisor shall exercise, in the performance of its duties, reasonable care and shall be liable for loss only when caused by the Plan Supervisor's (or the Plan Supervisor's subcontractors') gross negligence, fraud, willful misconduct, criminal conduct or a material breach of this Agreement. The Plan Supervisor shall be responsible for direct damages caused by its failure to satisfy its duties hereunder; provided, however, that the Plan Supervisor shall not be liable for any incidental or consequential damages caused by its failure to satisfy its duties hereunder. The Plan Supervisor shall not be responsible for errors or omissions of any party, including the Members or Plan Administrator, that previously provided administrative and/or recordkeeping services with respect to the Plan and/or the Trusts. The Plan Supervisor shall not be liable for the processing of Plan or Trust activity that is delayed due to circumstances beyond its reasonable control, including, but not limited to, national, state, or city disaster, acts of God, severe weather, or any other circumstances that would effect the Plan Supervisor or its trading platforms, software, voice response systems, or Internet systems. ©HaynesHitesman, PC 2006 14 REBA VEBA III(July 1, 2006) D. Reliance on Data & Direction. Notwithstanding any provision of this Agreement to the contrary, the Plan Supervisor is not responsible or liable for any acts or omissions made pursuant to any direction, consent or other request reasonably believed by the Plan Supervisor to be genuine and from an authorized representative of Members and Plan Administrator. The Plan Supervisor is not responsible or liable for acts or omissions made in reliance on erroneous data provided by Members or Plan Administrator to the extent the Plan Supervisor's acts or omissions are attributable to the erroneous data, or for the failure of Members or Plan Administrator to perform their obligations under this Agreement. VII. Term and Termination A. Term. This Agreement is effective as of the date first written hereinabove and shall continue for a period of sixty (60) consecutive months and for each twenty-four (24) consecutive month period thereafter until the termination of this Agreement pursuant to this Section VII of the Agreement. B. Termination. This Agreement may be terminated by either party by written notice of intention to terminate given to the other party to be effective as of a specified date not less than ninety (90) days from the date such notice is received. Notwithstanding the foregoing, in the event the Plan Administrator terminates this Agreement pursuant to this Section VII.B. prior to July 1, 2011 for reasons other than termination for cause, as described in Section VII.C. below, the Plan shall pay to the Plan Supervisor an early termination fee equal to: (i) if terminated prior to April 1, 2009, 1% of the total asset value of the Retirement Enhancement and Benefit Alternatives VEBA Trust, the Retirement Enhancement and Benefit Alternatives VEBA Trust II, and the Retirement Enhancement and Benefit Alternatives VEBA Trust III at the time of the termination; (ii) if terminated on or after April 1, 2009, but prior to January 1, 2010, 1% of the total asset value of the Retirement Enhancement and Benefit Alternatives VEBA Trust II and the Retirement Enhancement and Benefit Alternatives VEBA Trust III at the time of the termination; or (iii) if terminated on or after January 1, 2010, but prior to July 1, 2011, 1% of the value of the assets of the Retirement Enhancement and Benefit Alternatives VEBA Trust III at the time of the termination. ©HaynesHitesman, PC 2006 15 REBA VEBA III(July 1, 2006) Such early termination fee shall be paid within thirty (30) days following the effective date of said early termination and prior to the transfer of records described in Section V.D. hereof. C. Termination For Cause. Either party shall have the right to immediately terminate the Agreement upon: 1. The material breach of the terms of this Agreement, by either the Plan Supervisor or the Members, including failure to remit service fees due the Plan Supervisor, if such material breach is not corrected within ten (10) days of receipt of written notice specifying the nature of the breach to the satisfaction of the non- breaching party; 2. The bankruptcy or insolvency of the Members or the Plan Supervisor; or 3. The enactment of any law, promulgation of any regulation or action of any State or Federal agency or authority which makes or declares illegal the continuance of this Agreement or the performance of any of the services of the Plan Supervisor hereunder. D. Liability for Benefits After Termination of Agreement. Upon termination of this Agreement, the Plan Supervisor shall cease to act on behalf of the Members and Plan Administrator. The Members and Plan Administrator shall be liable for the payment of all eligible benefit claims payable on or after the time of termination pursuant to the terms of the Plan. The Plan Supervisor reserves the right to notify any Covered Individuals that the Plan Supervisor no longer acts on behalf of the Members and Plan Administrator. E. Post-Termination Obligations. Plan Supervisor may, as mutually agreed upon by Members, Plan Administrator and Plan Supervisor, provide certain administrative services following the termination of this Agreement. VIII. Miscellaneous A. Agreement Amendment. This Agreement may be amended only by mutual agreement in writing executed by all parties, except that the Plan Supervisor may amend this Agreement to the extent necessary to comply with applicable federal, state or local laws or regulations. B. Notices. All notices, requests, consents and other communications required or permitted under this Agreement shall be in writing and ©HaynesHitesman, PC 2006 16 REBA VEBA III(July 1, 2006) delivered personally, or sent by registered or certified mail or nationally recognized overnight carrier, postage prepaid, electronic transmission, or by facsimile transmission, to the address set forth below, or to such other address set forth in a notice given in the manner herein provided. All such notices, requests, information or other communications shall be deemed to have been given (i) when delivered if personally delivered, (ii) three business days after having been placed in the mail, if delivered by registered or certified mail, (iii) the business day after having been placed with a nationally recognized overnight carrier, if delivered by nationally recognized overnight carrier, and (iv) the business day after transmittal by facsimile if transmitted with electronic confirmation of receipt. If to Members and Plan Administrator: Retirement Enhancement and Benefit Alternatives Program Attn: REBA President c/o CBIZ Benefits & Insurance Services, Inc. 222 S. 9th Street Suite 1700 Minneapolis, MN 55402 If to the Plan Supervisor: Genesis Employee Benefits, Inc. Attn: Richard J. Allen, Jr. 8877 Belvedere Drive Eden Prairie, MN 55347 Telephone: 952-934-9670 Fax: 866-527-8317 Upon the occurrence of a change in any of the above address information, each party shall notify the other party(ies) of such change within five (5) business days of the effective date of the change. C. Severability. The provisions of this Agreement are severable. If any provision of this Agreement is held invalid by a court of law or other tribunal, the invalidity of any provision will not affect any other provision of this Agreement. D. Survival. The rights and obligations described in Sections IV.E., V., VI., and VII. shall survive termination of this Agreement. E. No Waiver of Rights. Nothing in this Agreement shall be deemed to limit or abrogate any right or remedy available under law. The failure of any party to insist upon the strict observation or performance of any provision ©HaynesHitesman, PC 2006 17 REBA VEBA III(July 1, 2006) of this Agreement or to exercise any right or remedy shall not impair or waive any such right or remedy. F. Copyrighted Works. The Plan Administrator and the Members acknowledge that the Plan Supervisor and its agents are the sole copyright owners of all plan documentation, administrative guides and forms, content of the web site, and all other materials provided under the terms of this Agreement and that such materials are proprietary to the Plan Supervisor. The Plan Supervisor grants the Plan Administrator and the Members a nonexclusive, nontransferable right to copy such materials provided such copies are needed for the sole purpose of collecting and reporting information regarding Participants or notifying Participants of information regarding the Plan. Other materials provided by the Plan Supervisor shall not be copied or reproduced by the Plan Administrator or the Members without the Plan Supervisor's prior written consent. G. Non-Assumption of Liabilities. Unless specifically provided in this Agreement, the parties do not assume the existing or future obligations, liabilities or debts of the other party. H. Entire Agreement. This Agreement shall supersede and replace any and all other agreements between the parties relating to the same subject matter, except that the Administration Agreements between the Plan Administrator and the Plan Supervisor dated effective April 1, 2004, and January 1, 2005, shall remain in effect with respect to those Members who participate solely in the Retirement Enhancement and Benefit Alternatives VEBA Trust or the Retirement Enhancement and Benefit Alternatives VEBA Trust II. This Agreement contains the entire agreement and understanding of the parties relating to the subject matter hereof, except as otherwise provided in this Agreement. Governing Law. The Agreement shall be governed by and interpreted in accordance with applicable federal law. To the extent the federal law does not govern, this Agreement shall be governed by the laws of the State of Minnesota and the courts in such state shall have sole and exclusive jurisdiction of any dispute related hereto and arising hereunder. J. Independent Contractors. The Plan Supervisor shall be construed to be acting as an independent contractor and not as an employee of Members or Plan Administrator. The Plan Supervisor, Members and the Plan Administrator shall not have the power or authority to act for or on behalf of, or to bind the other party, except as set forth in this Agreement. K. Third Party Beneficiaries. The obligations of each party to this Agreement shall inure solely to the benefit of the other signatory © HaynesHitesman, PC 2006 18 REBA VEBA III(July 1, 2006) party(ies). Except as expressly provided in this Agreement, no person or entity is intended to be or shall be construed or deemed to be a third party beneficiary of this Agreement. L. Successors and Assigns. This Agreement shall be binding on any successors, assigns and subcontractors of the parties authorized under this Agreement. M. Audit Rights. The parties agree to cooperate in all reasonable audits. Audit fees shall be payable by the party initiating the audit, except to the extent such costs qualify for indemnification under Article VI of this Agreement. Audits shall be conducted using procedures mutually agreed upon by the parties. Results of the audit may be shared with the party being audited at the sole discretion of the party initiating the audit. N. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. O. Force Majeure. Neither party shall be liable for any delay or failure to perform its obligations under this Agreement arising out of a cause beyond its control or without its fault or negligence. Such causes may include, but are not limited to, fires, floods, and natural disasters. IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the effective date of the Plan. PLAN ADMINISTRATOR By:/S/ Niki K. Lightfoot PLAN SUPERVISOR By:/S/ Richard J. Allen, Jr. Authorized Representative of Genesis Employee Benefits, Inc. d/b/a America's VEBA Solution Its: President © HaynesHitesman, PC 2006 19 REBA VEBA III(July 1, 2006) LIST OF EXHIBITS A Reports B Administrative Fees C Business Associate Agreement ©HaynesHitesman, PC 2006 20 REBA VEBA III(July 1, 2006) EXHIBIT A Reports Quarterly • VEBA Reconciliation — reconciles VEBA account to the plan report totals, by fund and in the total. Annually • Participant Statements — plan year account statements for participants (for distribution to participants) of the funded portion of the HRA. • Certified Annual Trust Statement. Web Site: Plan Sponsor On-Demand reports • HRA Administration Report — includes all participant's clams and payment activity and balances • Age Demographics - reports plan participants by configurable age group, years of service and average account balance. • Claim Distributions Report - reports participant census data, claim amounts paid and withdrawal dates within a selected date range. • Employee Census - reports participant data, including name and address, dates and participant's age. • Investment Demographics - reports each investment's CUSIP, units, cost, market value and how many participants are investing in that fund on any given date. Also provides the average number of investments per participant and each fund's percentage of total asset value. • Termination Report - reports terminated participants' census data, and balance within a selected date range. • Web Usage Statistics — reports by a number of categories, the number of web requests made by participants within a selected date range. ©HaynesHitesman, PC 2006 21 REBA VEBA III(July 1, 2006) EXHIBIT B Administrative Fees For those Members who became Members prior to January 1, 2005 (i.e., REBA I Members), the Plan shall make payments of administrative service fees in accordance with the following schedule: Service Description Fee Standard Services Initial set-up N/C Standard communication materials N/C Voice Response System N/C Participant and Plan Sponsor websites N/C Annual participant statements mailed to employer for distribution N/C Account maintenance fee for all non-claim active Participants (if no Participant- $1.95 PPPM directed investment of assets held in REBA III Trust) (until March 31, 2007) Account maintenance fee for all non-claim active Participants (if no Participant- directed investment of assets held in REBA III Trust) (from April 1, 2007, $2.35 PPPM through March 31, 2009) Account maintenance fee for all non-claim active Participants (if no Participant- $2.55 PPPM directed investment of assets held in REBA III Trust) (after March 31, 2009) Recordkeeping fee for all Participants, including annual asset-based fee (if any $2.35 PPPM assets held in REBA III Trust and investment is Participant-directed) (until plus 0.10% June 30, 2009) Recordkeeping fee for all Participants, including annual asset-based fee (if any $2.55 PPPM assets held in REBA III Trust and investment is Participant-directed (after June plus 0.10% 30, 2009) Standard claims processing* for claim active Participants (until March 31, $4.25 PPPM 2007) Standard claims processing* for claim active Participants (from April 1, 2007, $4.65 PPPM through March 31, 2009) Standard claims processing* for claim active Participants (after March 31, $4.95 PPPM 2009) PPPM = Per Participant Per Month * "Standard claims processing" is claims processing that occurs no more frequently than twice per month. © HaynesHitesman, PC 2006 22 REBA VEBA III(July 1, 2006) For those Members who became Members between January 1, 2005, and June 30, 2006 (i.e., REBA II Members), the Plan shall make payments of administrative service fees in accordance with the following schedule: Service Description Fee Standard Services Initial set-up N/C Standard communication materials N/C Voice Response System N/C Participant and Plan Sponsor websites N/C Annual participant statements mailed to employer for distribution N/C Account maintenance fee for all non-claim active Participants (if no Participant-directed investment of assets held in REBA III Trust) (until $1.95 PPPM December 31, 2007) Account maintenance fee for all non-claim active Participants (if no Participant-directed investment of assets held in REBA III Trust) (from $2.35 PPPM January 1, 2008, through December 31, 2009) Account maintenance fee for all non-claim active Participants (if no Participant-directed investment of assets held in REBA III Trust) (after $2.55 PPPM December 31, 2009) Recordkeeping fee for all Participants, including annual asset-based fee $2,35 PPPM (if assets held in REBA III Trust and investment is Participant-directed) plus 0.10% (until June 30, 2009) Recordkeeping fee for all Participants, including annual asset-based fee $2,55 PPPM (if assets held in REBA III Trust and investment is Participant-directed) plus 0.10% (after June 30, 2009) Standard claims processing* for claim active Participants (until $4.50 PPPM December 31, 2007) Standard claims processing* for claim active Participants (from January $4.90 PPPM 1, 2008, through December 31, 2009) Standard claims processing* for claim active Participants (after $4.95 PPPM December 31, 2009) PPPM = Per Participant Per Month * "Standard claims processing" is claims processing that occurs no more frequently than twice per month. © HaynesHitesman, PC 2006 23 REBA VEBA III(July 1, 2006) For those Members who became Members on or after July 1, 2006, the Plan shall make payments of administrative service fees in accordance with the following schedule: Service Description Fee Standard Services Initial set-up N/C Standard communication materials N/C Voice Response System N/C Participant and Plan Sponsor websites N/C Annual participant statements mailed to employer for distribution N/C Recordkeeping fee for all Participants, including annual asset-based fee $2.35 PPPM (until June 30, 2009) plus 0.10% Recordkeeping fee for all Participants, including annual asset-based fee $2.55 PPPM (after June 30, 2009) plus 0.10% Standard claims processing* for claim active Participants (until June 30, $4.50 PPPM 2009) Standard claims processing* for claim active Participants (after June 30, $4.95 PPPM 2007) PPPM = Per Participant Per Month * "Standard claims processing" is claims processing that occurs no more frequently than twice per month. ©HaynesHitesman, PC 2006 24 REBA VEBA III(July 1, 2006) For all Members: Optional Services Home mailing of participant statements (per participant per statement) .50 Annual asset-based omnibus account recordkeeping (charged quarterly) 0.20% Amendments requested by Plan Administrator $250 each Non-discrimination testing (per test) $325 Consulting to correct failed discrimination tests $150/hour Per employee meeting (plus travel expenses) $275 Multi-site billing and accounting (per location) $25 Wire transfer fee (Automated Clearinghouse - N/C) $20 © HaynesHitesman, PC 2006 25 REBA VEBA III(July 1, 2006) EXHIBIT C Business Associate Agreement I. Purpose This Exhibit C — Business Associate Agreement is intended to satisfy the "business associate" agreement between the Plan, as a Covered Entity (defined below), and the Plan Supervisor, as a Business Associate (defined below), as required under the privacy provisions of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA'). II. Special Definitions The following definitions are used by this Exhibit C — Business Associate Agreement: A. Business Associate — means Genesis Employee Benefits, Inc. d/b/a America's VEBA Solution. B. Covered Electronic Transactions — shall have the meaning given to the term "transaction" in 45 C.F.R. Section 160.103. C. Covered Entity — means Retirement and Enhancement Benefit Alternatives Voluntary Employees' Beneficiary Association Plan. D. Participant — means a person who is eligible for payment of certain services or supplies rendered or sold to the person or the person's eligible dependents under the terms, conditions, limitations, and exclusions of a health benefit program of the Plan. E. Data — means formalized representation of specific facts or concepts suitable for communication, interpretation, or processing by people or automatic means. F. Data Aggregation — means, with respect to Protected Health Information created or received by Business Associate in its capacity as a business associate (as that term is defined in 45 C.F.R. Section 160.103) of the Plan, the combining of such Protected Health Information by Business Associate with the Protected Health Information received by Business Associate in its capacity as a business associate of another covered entity (as those terms are defined in 45 C.F.R. Section 160.103), to permit data analyses that relate to the health care operations of the respective covered entities. ©HaynesHitesman, PC 2006 26 REBA VEBA III(July 1, 2006) G. Data Transmission — means automated transfer or exchange of Data, pursuant to the terms and conditions of this Agreement, between the Plan and Business Associate by means of their respective Operating Systems. H. Designated Record Set — means a group of records maintained by or for the Covered Entity that is (1) the medical records and billing records about Individuals maintained by or for a covered health care provider, (2) the enrollment, payment, claims adjudication, and case or medical management record systems maintained by or for the Covered Entity, or (3) used, in whole or in part, by or for the Covered Entity to make decisions about Individuals. As used herein, the term "Record" means any item, collection, or grouping of information that includes Protected Health Information and is maintained, collected, used or disseminated by or for the Covered Entity. I. Electronic Data Interchange (EDI) — means the automated exchange of business documents from application to application. J. Electronic Protected Health Information (ePHI) — means Protected Health Information maintained or transmitted in electronic media, including, but not limited to, electronic storage media (i.e., hard drives, digital memory medium) and transmission media used to exchange information in electronic storage media (i.e., internet, extranet, and other networks). Protected Health Information transmitted via facsimile and telephone is not considered to be Electronic Protected Health Information. K. Envelope — means the control structure in a format mutually agreeable to the Plan and Business Associate for the electronic interchange of one or more encoded Data Transmissions between the Plan and Business Associate. L. HHS — means the United States Department of Health and Human Services. M. Individual — shall have the same meaning as the term "individual" in 45 C.F.R. Section 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. Section 164.502(g). N. Operating System — means the equipment, software, and trained personnel necessary for a successful Data Transmission. O. Plan — means Retirement and Enhancement Benefit Alternatives Voluntary Employees' Beneficiary Association Plan. ©HaynesHitesman, PC 2006 27 REBA VEBA III(July 1, 2006) P. Privacy Rule — means the Standards and Privacy of Individually Identifiable Health Information at 45 C.F.R. Part 160 and Part 164, subparts A and E. Q. Protected Health Information — shall have the same meaning as the term "protected health information" in 45 C.F.R. Section 164.501, limited to the information created or received by Business Associate from or on behalf of Covered Entity. R. Provider — means a hospital or professional practitioner duly certified or licensed to provide health care services to Covered Individuals. S. Required By Law — shall have the same meaning as the term "required by law" in 45 C.F.R. Section 164.501. T. Secretary — means the Secretary of the Department of Health and Human Services or his/her designee. U. Security Access Codes — means alphanumeric codes that the Plan assigns to Business Associate to allow Business Associate access to the Plan's Operating System for the purpose of executing Data Transmissions or otherwise carrying out this Agreement. V. Security Incident — shall have the same meaning as the term "security incident" in 45 C.F.R. Section 164.304. W. Security Rule — means the Security Standards and Implementation Specifications at 45 C.F.R. Part 160 and Part 164, subpart C. X. Source Documents — means documents containing Data that are or may be required as part of a Data Transmission concerning a claim for payment of charges for medical services that a Provider furnishes. Y. Standards for Electronic Transactions Rule - means the final regulations issued by HHS concerning standard transactions and code sets under the Administrative Simplification provisions of HIPAA, 45 C.F.R. Part 160 and Part 162. Z. Trade Data Log — means the complete, written summary of Data and Data Transmissions exchanged between the Covered Entity and Business Associate over the period of time this Agreement is in effect and includes, without limitation, sender and receiver information, transmission date and time, and general nature. ©HaynesHitesman, PC 2006 28 REBA VEBA III(July 1, 2006) III. Business Associate Provisions A. Introduction. Business Associate, on behalf of Covered Entity, performs or assists in the performance of functions and activities that may involve the use and disclosure of Protected Health Information as defined in the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), Parts 160 and 164 ("Privacy Regulations"). This Section III is intended to meet the requirements of the "business associate" provisions of Privacy Rule and will govern the terms and conditions under which the Business Associate may use or disclose Protected Health Information. B. Permitted Uses and Disclosures. 1. Except as otherwise limited in this Agreement, Business Associate may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, Covered Entity pursuant to any services agreement with the Business Associate and as permitted or required by this Agreement or the Privacy Rule. 2. Except as otherwise limited in this Agreement, Business Associate may use Protected Health Information for the proper management and administration of its business or to carry out its legal responsibilities. 3. Except as otherwise limited in this Agreement, Business Associate may disclose Protected Health Information for the proper management and administration of its business, if i. the disclosures are required by law, or ii. Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will be held confidentially and will be used or further disclosed only as required by law or for the purpose for which it was disclosed to such person, and the person will notify the Business Associate of any instances of which the person is aware in which the confidentiality of the information has been breached. 4. Except as otherwise limited in this Agreement, Business Associate may use Protected Health Information to provide Data Aggregation services to Covered Entity as permitted by 42 C.F.R. Section 164.504(e)(2)(i)(B). ©HaynesHitesman, PC 2006 29 REBA VEBA III(July 1, 2006) 5. Except as otherwise limited in this Agreement, Business Associate may use Protected Health Information to report violations of law to appropriate Federal and State authorities, consistent with 42 C.F.R. Section 164.502(j)(1). C. Limitations on Uses and Disclosures. With respect to Protected Health Information that Business Associate creates or receives on behalf of Covered Entity, Business Associate will not use or further disclose the Protected Health Information other than as permitted or required by this Agreement or as Required by Law. D. Additional Obligations of Business Associate. Except as otherwise specified herein, the provisions of this Paragraph M.D. apply only to Protected Health Information that Business Associate creates or receives on behalf of Covered Entity. 1. Safeguards. Business Associate will use appropriate safeguards to prevent use or disclosure of Protected Health Information other than as provided for by this Agreement. 2. Reporting and Mitigation. Business Associate will report to Covered Entity any use or disclosure of Protected Health Information by Business Associate not provided for by this Agreement within ten (10) business days of its discovery by Business Associate. Business Associate agrees to promptly mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure in violation of this Agreement. 3. Agents and Subcontractors. Business Associate will ensure that any agent or subcontractor to whom it provides Protected Health Information received from, or created or received by Business Associate on behalf of Covered Entity agrees to the same restrictions and conditions that apply by and through this Agreement to Business Associate with respect to such information. 4. Access to Designated Record Set. Within fifteen (15) days of a request by the Covered Entity for access to Protected Health Information about an Individual, Business Associate shall make available to the Covered Entity or, as directed by the Covered Entity, an Individual such Protected Health Information contained in a Designated Record Set. In the event any Individual requests access to Protected Health Information directly from Business Associate, Business Associate shall within five (5) days forward such request to the Covered Entity. Any denials of access to the © HaynesHitesman, PC 2006 30 REBA VEBA III(July 1, 2006) Protected Health Information requested shall be the responsibility of the Covered Entity. 5. Amendment of Protected Health Information. Within fifteen (15) days of receipt of a request from the Covered Entity or an Individual for the amendment of Protected Health Information or a record regarding an Individual contained in a Designated Record Set, Business Associate shall provide such information to the Covered Entity for amendment and incorporate any such amendments in the Protected Health Information as required by 45 C.F.R. Section 164.526. It shall be the Covered Entity's responsibility to promptly notify Business Associate of the request for an amendment. Any denials, in whole or in part, of requested amendments shall be done in accordance with 45 C.F.R. Section 164.526 and shall be the responsibility of the Covered Entity. 6. Disclosure Accounting. Business Associate agrees to document such disclosures of Protected Health Information and information related to such disclosures as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 C.F.R. Section 164.528. Within fifteen (15) days of receipt of notice from the Covered Entity that it has received a request for an accounting of disclosures of Protected Health Information regarding an individual during the six (6) years prior to the date on which the accounting was requested, Business Associate shall make available to the Covered Entity such information as is in Business Associate's possession and is required for the Covered Entity to make the accounting required by 45 C.F.R. Section 164.528. At a minimum, Business Associate shall provide the Covered Entity with the following information: (1) the date of the disclosure; (2) the name of the entity or person who received the Protected Health Information, and if known, the address of such entity or person; (3) a brief description of the Protected Health Information disclosed; and, (4) a brief statement of the purpose of such disclosure which includes an explanation of the basis for such disclosure. It shall be the Covered Entity's responsibility to promptly notify Business Associate of the request for an accounting, and to prepare and deliver any such accounting requested. Business Associate hereby agrees to implement an appropriate record keeping process to enable it to comply with the requirements of this section. 7. Access to Business Associate's Internal Records. Business Associate will make its internal practices, books, and records ©HaynesHitesman, PC 2006 31 REBA VEBA III(July 1, 2006) relating to the use and disclosure of Protected Health Information received from, or created or received by Business Associate on behalf of Covered Entity available to the Covered Entity or the Secretary, for the purposes of the Secretary's determining Covered Entity's compliance with the Privacy Rule. 8. Return of Protected Health Information. Business Associate shall at the termination of this Agreement with Covered Entity, if feasible, return or destroy all Protected Health Information received from, or created or received by Business Associate on behalf of, the Covered Entity that Business Associate still maintains in any form and retain no copies of such information or, if such return or destruction is not feasible, extend the protection of this Agreement to the information and limit further uses and disclosures to those purposes that make the return or destruction of the information infeasible. 9. Electronic Transactions. In the event the Business Associate transmits or receives any Covered Electronic Transaction on behalf of the Covered Entity, it shall comply with all applicable provisions of the Standards for Electronic Transactions Rule to the extent Required by Law, and shall ensure that any agents and subcontractors that assist Business Associate in conducting Covered Electronic Transactions on behalf of the Covered Entity agree in writing to comply with the Standards for Electronic Transactions Rule to the extent Required by Law. E. Obligations of Covered Entity. 1. Notice of Privacy Practices. Covered Entity shall provide Business Associate with the notice of privacy practices that Covered Entity produces in accordance with 45 C.F.R. Section 164.520, as well as any changes to such notice. 2. Requests by Covered Entity. Covered Entity shall not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rules if done by Covered Entity. This includes, but is not limited to, requests for disclosure of Protected Health Information to the sponsoring employer as other than the entity acting on behalf of the Plan as the Covered Entity. To the extent a dispute or difference of opinion exists between the Business Associate and the sponsoring employer as the entity acting on behalf of the Plan as the Covered Entity, Business Associate may disclose under objection pursuant to the specific, written direction of the Covered Entity. Any disclosures made pursuant to such specific, written ©HaynesHitesman, PC 2006 32 REBA VEBA III(July 1, 2006) direction shall be subject to the indemnification provisions of the Agreement. 3. Changes in Permission. Covered Entity shall notify Business Associate of any changes in, or revocation of, permission by Individual to use or disclose Protected Health Information, to the extent that such changes may affect Business Associate's use or disclosure of Protected Health Information. 4. Restrictions. Covered Entity shall notify Business Associate of any restriction to the use or disclosure of Protected Health Information that Covered Entity has agreed to in accordance with 45 C.F.R. Section 164.522, to the extent that such restriction may affect Business Associate's use or disclosure of Protected Health Information. IV. Trading Partner Provisions A. Introduction. This Section IV applies only if and to the extent that Business Associate and Covered Entity conduct electronic transactions that are subject to Standards for Electronic Transactions Rule. The Business Associate may be considered a "trading partner" of the Covered Entity under the Standards for Electronic Transactions Rule. This Section IV will govern the terms and conditions under which Covered Electronic Transactions are conducted. B. Mutual Obligations. The mutual obligations of the Covered Entity and Business Associate include the following: 1. EDI Data Transmission Accuracy. The parties will take reasonable care to ensure that Data Transmissions are timely, complete, accurate and secure. 2. Retransmission of Lost or Indecipherable Transmissions. A party will retransmit the original transmission within two (2) business day(s) of its discovery that a Data Transmission is a lost or indecipherable transmission. 3. Equipment Cost. Each party will obtain and maintain, at its own expense, its own Operating System necessary for timely, complete, accurate and secure Data Transmission pursuant to this Agreement. 4. Transmission Format. All standard transactions, as defined by Social Security § 1173(a) and the Standards for Electronic ©HaynesHitesman, PC 2006 33 REBA VEBA III(July 1, 2006) Transactions Rule, conducted between the Covered Entity and Business Associate, will only use code sets, data elements and formats specified by the Standards for Electronic Transactions Rule. 5. Backup Files. Each party will maintain adequate backup files, electronic tapes or other sufficient means to recreate a Data Transmission for at least six (6) years from the Data Transmission's creation date. 6. Testing. Prior to the initial Data Transmission, each party will test and cooperate with the other party in testing each party's Operating System to ensure the accuracy, timeliness, completeness and confidentiality of each Data Transmission. 7. Data and Data Transmission Security. The Covered Entity and Business Associate will employ security measures necessary to protect Data and Data Transmissions between them in compliance with Social Security Act § 1173(d) and any HHS implementing regulations or guidelines. 8. Security Access Codes. The Security Access Codes that the Covered Entity issues to Business Associate will, when affixed to Data Transmissions, be legally sufficient to verify the identity of the transmitter and to authenticate the Data Transmission, thereby establishing the Data Transmission's validity. C. Business Associate Obligations. Business Associate will: 1. Use Data only according to the terms of this Agreement. 2. Protect and maintain the confidentiality of Security Access Codes issued to Business Associate by the Covered Entity. 3. Limit disclosure of Security Access Codes to authorized personnel on a need-to-know basis. D. The Covered Entity's Obligations. The Covered Entity will: 1. Make available to Business Associate, via electronic means, Data and Data Transmissions for which this Agreement grants Business Associate access or authorization, or as provided by law; 2. Provide Business Associate with Security Access Codes that will allow Business Associate access to the Plan's Operating System. The Covered Entity reserves the right to change Security Access ©HaynesHitesman, PC 2006 34 REBA VEBA III(July 1, 2006) Codes at any time and in such a manner as the Covered Entity, in its sole discretion, deems necessary. E. Confidentiality and Security. 1. Data Security. Business Associate will maintain adequate security procedures to prevent unauthorized access to Data, Data Transmissions, Security Access Codes, Envelope, backup files, Source Documents or the Covered Entity's Operating System. Business Associate will promptly notify the Covered Entity of any unauthorized attempt to obtain access to or otherwise tamper with Data, Data Transmissions, Security Access Codes, Envelope, backup files, Source Documents or the Covered Entity's Operating System. 2. Operating Systems Security. Each party will develop, implement and maintain measures necessary to ensure the security of each party's own Operating System and each party's records relating to its Operating System and in compliance with applicable law. F. Records Retention and Audit. 1. Records Retention. Business Associate will maintain complete, accurate and unaltered copies of all Source Documents from all Data Transmissions it receives from the Covered Entity for not less than six (6) years from the date that Business Associate receives them. All retained records will be subject to the same security measures as Data and Data Transmissions. 2. Trade Data Log. The Covered Entity and Business Associate will each establish and maintain a Trade Data Log to record all Data Transmissions between the parties during the term of this Agreement. Each party will take necessary and reasonable steps to ensure that its Trade Data Log constitutes a complete, accurate, and unaltered record of each Data Transmission between the parties. Each party will retain Data Transmission records for not less than six (6) month(s) following the date of a Data Transmission. Each party will maintain its Trade Data Log on electronic media or other suitable means that permit timely retrieval and presentation in readable form. V. Electronic Security Provisions A. Introduction. This Section V is intended to meet the requirements of the "business associate" provisions of Security Rule and will govern the terms ©HaynesHitesman, PC 2006 35 REBA VEBA III(July 1, 2006) and conditions under which the Business Associate may create, maintain, receive, and transmit Electronic Protected Health Information on behalf of the Covered Entity. The effective date of this Section V shall be April 20, 2006. B. Obligations of Business Associate. In accordance with the Security Rule, Business Associate agrees to: 1. Implement administrative, physical and technical safeguards (including written policies and procedures) that reasonably and appropriately protect the confidentiality, integrity, and availability of the Electronic Protected Health Information that Business Associate creates, maintains, receives, or transmits on behalf of the Covered Entity; 2. Ensure that any agent or subcontractor to whom Business Associate provides Electronic Protected Health Information agrees to the same restrictions and conditions that apply under this Section V to Business Associate, including, but not limited to, implementing reasonable and appropriate safeguards to protect such information; and 3. Report to Covered Entity any Security Incident of which Business Associate becomes aware within ten (10) business days of its discovery by the Business Associate. 4. Promptly mitigate, to the extent practicable, any harmful effect of a Security Incident that is known to Business Associate. ©HaynesHitesman, PC 2006 36 REBA VEBA III(July 1, 2006) VI. Term and Termination A. Term. The Term of this Agreement will begin and become effective on the compliance date applicable to Covered Entity under the Privacy Rule, and shall terminate when all of the Protected Health Information created or received by Business Associate on behalf of Covered Entity is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy Protected Health Information, protections are extended to such information, in accordance with the termination provisions in this Section VI. B. Termination. In the event that Covered Entity discovers and determines that Business Associate materially breached or violated any of its obligations under this Agreement, Covered Entity will notify Business Associate of such breach in writing. Covered Entity may terminate the Agreement, may provide Business Associate with an opportunity to take reasonable steps to cure the breach or end the violation, as applicable, within a mutually agreed upon period of time, and/or may report the violation to the Secretary. If Business Associate's attempts to cure the breach or end the violation are unsuccessful within that period, without limiting the rights of the parties under the Agreement, Covered Entity may terminate the Agreement. C. Effect of Termination. 1. Except as provided in paragraphs (2) and/or (3) of this sub-section, upon termination of the Agreement, for any reason, Business Associate shall return or destroy all Protected Health Information created or received by it on behalf of Covered Entity. This provision shall apply to Protected Health Information that is in the possession of Business Associate and/or its subcontractors or agents. Business Associate will not retain any copies of Protected Health Information. 2. In the event that Business Associate determines that returning or destroying Protected Health Information is infeasible, Business Associate will notify Covered Entity of the conditions that make return or destruction infeasible. Upon mutual agreement of the parties that return or destruction of Protected Health Information is infeasible, Business Associate will extend the protections of this Agreement to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such Protected Health Information. ©HaynesHitesman, PC 2006 37 REBA VEBA III(July 1, 2006) 3. Should the Covered Entity notify Business Associate that the information necessary to comply with the recordkeeping requirements under other applicable law including, but not limited to, the Employee Retirement Income Security Act of 1974 ("ERISA"), includes the Protected Health Information, Business Associate shall return or provide to Covered Entity such information, including Protected Health Information. VII. General Provisions A. Regulatory References. A reference in this Agreement to a section in the Privacy Rule means the section as in effect or as amended. B. Amendment. The parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for Covered Entity to comply with the requirements of the Privacy Rule and the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191. C. Interpretation. Any ambiguity in this Agreement shall be resolved to permit Covered Entity to comply with the Privacy Rule. D. Survival. The respective rights and obligations of Business Associate and the Covered Entity shall under this Agreement survive the termination of this Agreement and any related services agreement. E. Permissible Requests by Covered Entity. Covered Entity shall not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by Covered Entity, except as otherwise provided herein. F. Indemnity. Business Associate will indemnify and hold harmless Covered Entity and Covered Entity's affiliates, officers, directors, employees or agents from and against any claim, cause of action, liability, damage, cost or expense, including attorneys' fees and court or proceeding costs, arising out of or in connection with any non-permitted or violating use or disclosure of Protected Health Information or other breach of this Agreement by Business Associate or any subcontractor, agent, person or entity under Business Associate's control. G. Conformance with Law. Upon the effective date of any final regulation or amendment to final regulations promulgated by the U.S. Department of Health and Human Services with respect to Protected Health Information or Covered Electronic Transactions, this Agreement will automatically amend such that the obligations they impose on the Business Associate remain in compliance with these regulations. ©HaynesHitesman, PC 2006 38 REBA VEBA III(July 1, 2006) RETIREMENT ENHANCEMENT AND BENEFIT ALTERNATIVES VOLUNTARY EMPLOYEES' BENEFICIARY ASSOCIATION TRUST III TRUST AGREEMENT © HaynesHitesman, PC 2006 America's VEBA Solution REBA III Trust Agreement TABLE OF CONTENTS ARTICLE I. INTRODUCTION 1 ARTICLE II. DEFINITIONS 2 ARTICLE III. THE TRUST 3 ARTICLE IV. DUTIES AND POWERS OF TRUSTEE 4 ARTICLE V. CHANGES IN TRUSTEE 10 ARTICLE VI. TRUST AMENDMENT AND TERMINATION 11 ARTICLE VII. GENERAL PROVISIONS 12 ©HaynesHitesman, PC 2006 America's VEBA Solution REBA III Trust Agreement ARTICLE I. INTRODUCTION 1.1 Establishment. The Sponsor hereby establishes, with the consent of Trustee, a trust which shall be known as the Retirement Enhancement and Benefit Alternatives Voluntary Employees' Beneficiary Association Trust III (the"Trust"). The effective date of the Trust is July 1, 2006. 1.2 Purpose. The purposes of the Trust are (1) to provide a source of funds to pay benefits and administrative expenses under the Plan, and (2) to permit Trust assets to be invested and such earnings thereon to be not taxable under the Code. ©HaynesHitesman, PC 2006 1 America's VEBA Solution REBA III Trust Agreement ARTICLE II. DEFINITIONS The following words and phrases are used in this Trust and shall have the meanings set forth in this Article unless a different meaning is clearly required by the context or is defined within an Article. 2.1 Adopting Employer means a state or subdivision thereof that adopts the Plan by completing and executing an Adoption Agreement, which may include a joint powers agreement. 2.2 Adoption Agreement means the separate agreement completed and executed by an Adopting Employer through which the Adopting Employer adopts the Plan and sets forth such Adopting Employer's selection of options under the Plan. 2.3 Code means the Internal Revenue Code of 1986, as amended from time to time. 2.4 Employer Contribution means a nonelective contribution made by an Adopting Employer to the Plan on behalf of a Participant. 2.5 HC Account means "health care account" and is the record keeping account established under the Plan for each Participant. 2.6 Participant means"Participant" under the Plan. 2.7 Plan means the Retirement Enhancement and Benefit Alternatives Voluntary Employees' Beneficiary Association Plan, as amended from time to time. 2.8 Plan Administrator means the entity, person, or persons responsible for the Plan's administration as determined under the Plan. 2.9 Plan Supervisor means Genesis Employee Benefits, Inc. d.b.a. America's VEBA Solution, a Minnesota corporation. 2.10 Sponsor means the Retirement Enhancement and Benefit Alternatives Program. Retirement Enhancement and Benefit Alternatives Program is a joint powers organization established and maintained pursuant to Minnesota Statutes Section 471.59. 2.11 Trust means the Retirement Enhancement and Benefit Alternatives Voluntary Employees' Beneficiary Association Trust III created for the purpose of accepting and holding certain Employer Contributions or other contributions under the Plan. 2.12 Trust Agreement means this document, as may be amended from time to time. 2.13 Trustee means U.S. Bank National Association. ©HaynesHitesman, PC 2006 2 America's VEBA Solution REBA III Trust Agreement ARTICLE III. THE TRUST 3.1 Trust. Contributions to the Plan shall be held in the Trust by the Trustee in accordance with the Plan. The Sponsor represents that the Trust is intended to qualify as a tax exempt trust under Section 501(c)(9) of the Code. The Sponsor shall request the Internal Revenue Service ("IRS") to rule on the tax-exempt status of the Trust in accordance with IRS requirements for such determinations. Upon receipt of the IRS' determination, the Sponsor will provide written notice of such determination to the Adopting Employers, the Plan Administrator, the Plan Supervisor, and the Trustee. 3.2 Source of the Trust Funds. The Trustee shall hold all contributions received by it in trust and administer the Trust in accordance with this Trust Agreement. Contributions may consist of Employer Contributions and amounts transferred directly to this Trust from another tax exempt trust. Transfers from other trusts shall be received by the Trust only upon approval by the Plan Administrator and shall not be allowed if the Plan Administrator determines such transfer jeopardizes the status of this Trust as tax exempt under Section 501(c)(9) of the Code. 3.3 Subaccounts. As directed by the Plan Administrator, the Trustee shall establish subaccounts within the Trust as described herein and all monies contributed to the Trust will be held in the applicable subaccount. (a) A subaccount shall be established for each Adopting Employer whose Participants may direct investment of their HC Accounts. Such subaccounts shall be divided into further subaccounts for each Participant and contributions to such subaccounts shall be allocated among the Participants. (b) A subaccount shall be established for each Adopting Employer who directs investment of the HC Accounts of their Participants. 3.4 Payments from Trust. The Trustee will, within a reasonable length of time after receipt of written direction from the Plan Administrator (or the Plan Supervisor as its designee under the Plan), make payments from the Trust. Such payments shall be made directly to such person or persons, natural or otherwise, at such time and in such amounts as the Plan Administrator (or the Plan Supervisor as its designee under the Plan) directs, and the Trustee will have no duty to question the propriety of any such direction and shall be fully protected hereunder and following such direction. 3.5 Return of Contributions. Notwithstanding any other provision of this Trust Agreement, contributions made by an Adopting Employer based upon mistake of fact may be returned to such Adopting Employer within one year of such contribution; provided that the Plan Administrator determines the return of contributions under this Section 3.4 does not violate any provision of the Plan. The Trustee shall return contributions under this Section 3.4 only in accordance with directions from the Plan Administrator. The Trustee shall have no duty to determine whether the return of such contributions is permitted under this Section 3.4 and the Plan. ©HaynesHitesman, PC 2006 3 America's VEBA Solution REBA III Trust Agreement ARTICLE IV. DUTIES AND POWERS OF TRUSTEE 4.1 General Responsibility. The general responsibilities of the Trustee shall be as follows: (a) The Trustee shall hold, administer, invest and reinvest, and disburse the Trust assets in accordance with the powers and subject to the restrictions stated herein. (b) The duties of the Trustee hereunder are as a directed trustee and the Trustee shall act solely in accordance with the directions of the Plan Administrator, an Adopting Employer, Plan Supervisor, a Participant or an investment advisor designated by the Plan Administrator (as applicable hereunder). Nothing in this Trust Agreement is intended to give the Trustee any discretionary responsibility, authority or control with respect to the management or administration of the Plan or the management of the assets of the Plan. Further, the Trustee is not a party to the Plan and has no duties or responsibilities other than those that may be expressly contained in this Trust Agreement and applicable law. In any case in which a provision of this Trust Agreement conflicts with any provision in the Plan, this Trust Agreement shall control. (c) The Trustee shall disburse monies and other properties from the Trust on direction of the Plan Administrator (or the Plan Supervisor as its designee under the Plan), pursuant to the provisions of the Plan to the payee or payees at the time or times specified by the Plan Administrator in directions to the Trustee. Such directions shall be in writing and shall be signed by the person or persons thereto authorized by the Plan Administrator. Except as otherwise provided under applicable law, the Trustee shall be under no liability for any distribution made by it pursuant to such directions and shall be under no duty to make inquiry as to whether any distribution made by it pursuant to any such direction is made pursuant to the provisions of the Plan. The receipt of the payee shall constitute a full acquittance to the Trustee. 4.2 Exercise of Trustee's Duties. The Trustee shall discharge its duties hereunder solely in the best interest of the Participants and other persons entitled to benefits under the Plan, and (a) for the exclusive purpose of: (1) providing benefits to Participants and other persons entitled to benefits under the Plan, and (2) defraying reasonable expenses of administering the Trust and the Plan; and (b) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person acting in a fiduciary capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims. 4.3 General Powers. With respect to the Trust assets and subject only to the limitations expressly provided in this Trust Agreement, the Trustee shall have the following powers, rights and duties in addition to those vested in them elsewhere in this Trust or by law: ©HaynesHitesman, PC 2006 4 America's VEBA Solution REBA III Trust Agreement (a) To receive and hold all contributions paid to it; provided, however, that the Trustee shall have no duty to require any contributions to be paid to it, or to determine that the contributions received by it comply with the Plan or with any resolution of the governing body of the Plan Administrator or any resolution of the governing body of an Adopting Employer; and, further provided that the Trustee shall have no responsibility with respect to the operation or administration of the Plan; (b) To retain in cash (pending investment, reinvestment or payment of benefits) any reasonable portion of the Trust assets and to deposit cash in any depository selected by it, including in the banking department of the Trustee or any affiliate thereof, notwithstanding the Trustee's or other entity's receipt of "float" from such uninvested cash; (c) To compromise, contest, arbitrate, settle or abandon claims and demands (exclusive of claims and demands arising under the Trust); (d) To begin, maintain or defend any litigation necessary in connection with the investment, reinvestment or administration of the Trust provided, however, that the Trustee shall not be obligated to do so unless it has been indemnified by the Plan Administrator and the Plan against all expenses and liabilities sustained in connection with such action; (e) As directed by the Plan Administrator, to have all rights of an individual owner, including the power to vote proxies, to join in or oppose (alone or jointly with others) voting trusts, mergers, consolidations, foreclosures, reorganizations, recapitalizations or liquidations, and to exercise or sell stock subscription or conversion rights; (f) Make, execute and deliver any and all documents, agreements or other instruments in writing as is necessary or desirable for the accomplishment of any of the powers and duties in this Trust Agreement; (g) To hold securities or other property, including, but not limited to, variable group funding agreements or annuity contracts, in the name of the Trustee or its nominee, or nominees, or in such other form as it determines best, with or without disclosing the trust relationship, provided the records of the Trustee shall indicate the actual ownership of such securities or other property; (h) Appoint domestic agents, sub-trustees, sub-custodians or depositories (including affiliates of the Trustee) as to part or all of the Trust, except that the indicia of ownership of any asset of the Trust shall not be held outside the jurisdiction of the District Courts of the United States; (i) To retain any funds or property subject to any dispute without liability for the payment of interest, and to decline to make payment or delivery thereof until final adjudication is made by a court of competent jurisdiction; (j) To pay any tax, charge or assessment attributable to any benefit which, in the Trustee's opinion, it shall or may be required to pay out of such benefit; and to require before making any payment such release or other document from any taxing authority and such indemnity from the intended payee as the Trustee shall deem necessary for its protection; ©HaynesHitesman, PC 2006 5 America's VEBA Solution REBA III Trust Agreement (k) Collect income payable to and dividends or other distributions due to the Trust and sign on behalf of the Plan any declarations, affidavits, and certificates of ownership required to collect income and principal payments, and if requested by the Plan Administrator, sign required governmental filings; (I) To employ agents, attorneys, investment counsel, accountants or other persons (who also may be employed by or represent the Plan Administrator and/or an Adopting Employer) for such purposes as the Trustee considers desirable and appropriate; (m) To furnish the Plan Administrator or the Adopting Employers with such information in the Trustee's possession as those entities may need for tax or other purposes; and (n) To perform any and all other acts in the judgment of the Trustee necessary or appropriate for the proper and advantageous administration and custody of the Trust assets. 4.4 Investments. Except as otherwise provided herein and Section 4.5, each Adopting Employer shall have sole responsibility for the investment and reinvestment of the assets of the portion of the Trust attributable to Participants participating through such Adopting Employer. The Plan Administrator or an investment advisor designated by the Plan Administrator shall select the list of available investments taking into consideration the characteristics of the Plan and persons covered under the Plan. Promptly upon the Plan Administrator's designation of an investment advisor or upon the Plan Administrator's removal of any such designation, the Plan Administrator shall provide the Trustee, the Plan Supervisor and each Adopting employer written notice of such designation or removal. Any investment advisor designated by the Plan Administrator shall comply with administrative and operational procedures and processes deemed necessary by the Trustee, the Plan Administrator and/or the Plan Supervisor. The Trustee shall have no duty or responsibility for (a) selecting or providing advice with respect to the selection of any investment options offered under the Plan, (b) determining or reviewing any securities or other property purchased for or held by the Plan, or (c) providing advice with respect to the purchase, retention, redemption, or sale of any securities or other property for the Plan. Adopting Employers shall diversify the investments of their portion of the Trust so as to minimize the risk of large losses, unless under the circumstances they are clearly prudent not to do so. No investment shall be made which would involve a prohibited transaction under the applicable law. Adopting Employers shall comply with applicable laws of any state proscribing or limiting the investment of trust funds by corporate or individual trustees in or to certain kinds, types, or classes of investments or limiting the value or proportion of the trust assets that may be invested in any one property or kind, type, or class of investment. Investments and reinvestments shall be subject to the above standard, and without limiting the generality of the foregoing, shall also be subject to the following: (a) Adopting Employers may direct the investment and reinvestment of principal and income of the Trust in savings accounts or savings certificates, short term investments (including commingled short term investment funds) in common, preferred, and other stocks of any corporation; voting trust certificates; interests in investment trusts, including, without limiting the generality thereof, participations issued by an investment company as defined in the Investment Company Act of 1940, as from time to time amended (including shares of any investment company/mutual fund for which the Trustee or any of it affiliates serves as investment advisor, administrator, custodian or other service provider as disclosed in the current prospectus for such investment company); bonds, notes, and debentures, secured or unsecured; mortgages on real or personal property; conditional sales contracts; and real estate and leases; provided that no investment shall be made in the real property or the stocks, bonds, notes or other obligations of the ©HaynesHitesman, PC 2006 6 America's VEBA Solution REBA III Trust Agreement Adopting Employer or any of its subsidiaries unless there shall first have been obtained an opinion of counsel for the Adopting Employer, or a ruling from the Internal Revenue Service that such investment will not jeopardize the tax exempt status of the Trust. (b) Adopting Employers may direct the investment and reinvestment of principal and income of the Trust through any common or collective trust fund or pooled investment fund maintained by the Trustee for the collective investment of funds held by it in a fiduciary capacity. The provisions of the document governing any such common or collective trust fund as it may be amended from time to time shall govern any investment therein and are hereby made a part of this Trust. (c) Adopting Employers may direct the investment and reinvestment of principal and income of the Trust in variable group funding agreements or annuity contracts. (d) The Plan Administrator, an Adopting Employer, an investment advisor designated by the Plan Administrator, or any Participant (as applicable) shall be authorized and hereby retain the right to direct the Trustee to (i) retain the services of U.S. Bancorp Investments, Inc., an affiliate of U.S. Bank National Association, and/or any other registered broker-dealer organization affiliated with U.S. Bank National Association, and any future successor in interest thereto (collectively, including U.S. Bank National Association and its other affiliates, for the purposes of this paragraph referred to as "Affiliate Entities"), to provide services to assist in or facilitate the purchase or sale of investment securities in the Trust, (ii) acquire as assets of the Trust shares of mutual funds to which Affiliated Entities provide, for a fee, services in any capacity, and (iii) acquire in the Trust any other services or products of any kind or nature from the Affiliated Entities regardless of whether the same or similar services or products are available from other institutions. Pursuant to such directions the Trust directly or indirectly (through mutual fund fees and chargers for example) may pay management fees, transaction fees and other commissions to the Affiliated Entities for the services or products provided the Trust and/or such mutual funds such Affiliated Entities'standard or published rates without offset (unless required by law) from any fees charged by the Trustee for its services as Trustee. The Trustee may also be so directed to deal directly with the Affiliated Entities regardless of the capacity in which it is then acting, to purchase, sell, exchange or transfer assets of the Trust even though the Affiliated Entities are receiving compensation or otherwise profiting from such transaction or are acting as a principal in such transaction. Included specifically, but not by way of limitation, in the transactions authorized by this provision are transactions in which any of the Affiliated Entities are serving as an underwriter or member of an underwriting syndicate for a security being purchased or are purchasing or selling a security for its own account. 4.5 Participant Directed Investments. If provided in an Adopting Employer's Adoption Agreement, the Participants participating through such Adopting Employer shall be responsible for directing the investment of all or a portion of their HC Account balances. The following requirements apply to Participant directed investments: (a) The Plan Administrator or an investment advisor designated by the Plan Administrator shall select the list of available investments taking into consideration the characteristics of the Plan and persons covered under the Plan. Each Adopting Employer may limit choices available to its Participants from the list determined by the Plan Administrator or investment advisor. (b) The Plan Supervisor shall establish direction procedures based upon the types of ©HaynesHitesman, PC 2006 America's VEBA Solution REBA III Trust Agreement investments available. Such procedures shall include instructions regarding making and changing investments and allocations of HC Account assets among investments. The Plan Supervisor will confer with the Trustee with respect to any direction procedure that affects the Trustee's rights, responsibilities or duties hereunder. No direction procedure affecting the Trustee's rights, responsibilities or duties hereunder shall be effective with respect to the Trustee unless the Plan Supervisor obtains the Trustee's written approval of the procedure. (c) The earnings/losses of the directed investments shall be allocated by the Plan Supervisor only to the particular Participant's HC Account. (d) If a Participant fails to direct the investment of his or her HC Account, the Plan Administrator or an investment advisor designated by the Plan Administrator shall direct the Trustee regarding the investment of the HC Account. (e) The Plan Administrator shall arrange to have investment information, including, as applicable, mutual fund prospectuses, available to Participants to inform them of objectives, risks fees and other characteristics of investments available to Participants' HC Accounts. 4.6 Compensation and Expenses. The Trustee shall be entitled to reasonable fees for its services as agreed from time to time by the Plan Administrator and the Trustees. Such fees and any expenses incurred by the Trustee in connection with the Trust held hereunder (including expenses and fees of persons employed by them pursuant to Section 4.3(1) or otherwise hereunder) shall be charged to the Plan, allocated to each Adopting Employer, and paid in accordance with the Adopting Employer's Adoption Agreement. The Plan Administrator acknowledges that the Trustee may increase the amount of compensation on an annual basis with sixty (60) days' prior written notice to the Plan Administrator. 4.7 Records and Accounts of the Trustee. The Trustee shall maintain accurate and detailed records and accounts of all transactions hereunder. Within thirty (30) days following the close of each calendar quarter, or following the close of such other reporting period as may be agreed upon by the Trustee and the Plan Administrator, the Trustee shall file with the Plan Administrator a written account setting forth the balance in the Trust at the beginning of the period, current contributions during the period, distributions from the Trust and the balance in the Trust assets at the end of the period. The Trustee shall also file a written account listing the property held in the Trust as of the close of each period. All such records and accounts shall be open to inspection at all reasonable times by any person designated by the Plan Administrator or an Adopting Employer. 4.8 Annual Report. As soon as practicable following the close of each fiscal year of the Trust and following the effective date of the removal or resignation of any Trustee, the Trustee shall file with the Plan Administrator a written report (unless the report is waived by the Plan Administrator) setting forth all transactions with respect to the Trust during such fiscal year or during the period from the close of the last fiscal year to the date of such removal or resignation and listing the assets of the Trust and the market value thereof as of the close of the period covered by such report. 4.9 Approval of Reports. Upon the receipt by the Trustee of the Plan Administrator's written approval of any such written account or report, or upon the lapse of ninety (90) days after the Plan Administrator's receipt of each written account or report, said written account or report shall be deemed to be approved by it except as to matters, if any, covered by written objections theretofore delivered to the Trustee by the Plan Administrator regarding which the Trustee has ©HaynesHitesman, PC 2006 8 America's VEBA Solution REBA III Trust Agreement not given an explanation or made adjustments satisfactory to it. The Trustee, to the extent permitted by law, shall be released and discharged as to all items, matters, and things set forth in such written account or report other than the matters covered in such written objections as provided herein. The Trustee, nevertheless, shall have the right to have its accounts approved by judicial proceedings if they so elect, in which event the Trustee and the Plan Administrator shall be the only necessary parties. Further, in the event that the Plan Administrator duly delivers to the Trustee written objections to any matters set forth in any such written account or report and said objections are not explained or adjusted to the satisfaction of the Plan Administrator, each shall likewise have the right to have the Trustee's accounts reviewed by judicial proceedings if they so elect, in which event the Trustee, the Plan Administrator, and the Adopting Employers shall be the only necessary parties. 4.10 Indemnity. The Trustee, its affiliates, agents, and employees (each such party herein shall be referred to as an "Indemnified Party" for purposes of this Section 4.10), except as prohibited by law, shall immediately be indemnified and held harmless by the Plan Administrator, the Sponsor, and each Adopting Employer from any and all liabilities, costs and expenses (including legal fees) arising out of any action taken by such Indemnified Party with respect to the Plan and Trust. No such indemnification, however, shall be required or provided if such liability arises (i) from the proven gross negligence or bad faith of the Indemnified Party, or (ii) from the criminal misconduct of such Indemnified Party, if the Indemnified Party has reason to believe the conduct was unlawful. This indemnification obligation shall survive the termination of this Trust Agreement and shall inure to the benefit of the successors of such Indemnified Party. ©HaynesHitesman, PC 2006 9 America's VEBA Solution REBA III Trust Agreement ARTICLE V. CHANGES IN TRUSTEE 5.1 Resignation. The Trustee may resign at any time by giving sixty (60) days advance written notice to the Plan Administrator. 5.2 Removal and Appointment of Successor Trustee. The Plan Administrator or the Plan Supervisor may remove the Trustee by giving sixty (60) days advance written notice to the Trustee, subject to providing the removed Trustee with a copy of the successor Trustee's acceptance of the trusteeship. The Plan Administrator shall appoint a successor Trustee. If no successor is appointed, or for any period during which there is no appointed Trustee, the Plan Administrator shall serve as the Trustee. 5.3 Duties of Resigning or Removed Trustee and of Successor Trustee. If the Trustee resigns or is removed, that Trustee shall promptly transfer and deliver the assets of the Trust to the successor Trustee, after reserving such reasonable amount as the Trustee shall deem necessary to provide for the Trustee's fees, expenses, and any sums chargeable against the Trust for which the Trustee may be liable. Within one hundred twenty (120) days, the resigned or removed Trustee shall furnish to the Plan Administrator and the successor Trustee an account of the administration of the Trust from the date of its last account (unless the account is waived by the Plan Administrator). Each successor Trustee shall succeed to the title to the Trust vested in the Trustee's predecessor without the signing or filing of any further instrument, but any resigning or removed Trustee shall execute all documents and do all acts necessary to vest title to any successor Trustee. Each successor shall have all the powers, rights and duties conferred by this Trust Agreement as if originally named Trustee. No successor Trustee shall be personally liable for any act or failure to act of a predecessor Trustee. 5.4 Merger or Consolidation of Trustee. Any entity into which the Trustee may be merged or with which it may be consolidated, or any entity resulting from any merger or consolidation to which the Trustee is a party, or any entity succeeding to the trust business of the Trustee, shall become the successor of the Trustee hereunder, without the execution or filing of any instrument or the performance of any further act on the part of the parties hereto. 5.5 Waiver of Written Notice. Any written notice requirement required under this Article V may be waived by mutual agreement of the Trustee and the Plan Administrator. ©HaynesHitesman, PC 2006 10 America's VEBA Solution REBA III Trust Agreement ARTICLE VI. TRUST AMENDMENT AND TERMINATION 6.1 Amendment. The Sponsor reserves the right to amend, alter, or wholly revise the Trust Agreement, prospectively or retrospectively, at any time by the action of its managing body, and the interest of each Participant is subject to the powers so reserved. The Sponsor expressly may amend, alter or wholly revise the Trust Agreement if it determines it necessary or desirable, with or without retroactive effect, to comply with the law. Such changes shall not affect any right to benefits that accrued prior to such amendments. Such amendment shall be made in writing, shall be signed by the Sponsor and Trustee, and shall be delivered promptly to the Plan Administrator, Adopting Employers, and Plan Supervisor. Notwithstanding the above, no amendment may be made, without its written consent, that would increase substantially the duties or liabilities of the Trustee and no amendment may be made that would divert any part of the Trust assets to any use or purpose other than for the exclusive benefit of the Participants and other individuals entitled to benefits under the Plan; provided, however, that any such amendments may be made which may be or become necessary in order that the Trust qualifies as tax exempt under the provisions of the Code, as amended, or in order that all provisions of the Trust will conform to all valid requirements of applicable federal sand state laws. 6.2 Termination. Although the Sponsor expects the Plan and Trust to be maintained for an indefinite time, the Sponsor may terminate the Trust by delivering to the Trustee, Plan Administrator, Plan Supervisor, and each Adopting Employer, at least thirty (30) days prior to the effective date of termination, a directive signed by an authorized representative of the Sponsor. If the Trust is terminated, all of the provisions of the Trust evidenced by this Trust Agreement shall continue in effect until the Trust assets have been distributed by the Trustee as directed by the Plan Administrator. 6.3 Termination of Participation in Trust; Transfer of Assets. An Adopting Employer may terminate participation in the Trust by delivering to the Trustee, Plan Administrator, Sponsor, Plan Supervisor, and each Adopting Employer, at least thirty (30) days prior to the effective date of termination, a directive signed by an authorized officer of the Adopting Employer, or that person's duly authorized delegate. If participation in the Trust is terminated, all of the provisions of the Trust evidenced by this Trust Agreement shall continue in effect until the Trust assets attributable to the withdrawing Adopting Employer have been distributed by the Trustee as directed by the Plan Administrator. Unless otherwise agreed by the withdrawing Adopting Employer, the Plan Administrator, and the Trustee, the Trustee shall not transfer any of the Trust's assets attributable to a withdrawing Adopting Employer to any other trust. In the event the withdrawing Adopting Employer, the Plan Administrator, and the Trustee agree, the Trustee shall transfer all of the Trust's assets attributable to that Adopting Employer to another tax-exempt trust, which may or may not also involve a change in Trustee under Article V. The Trustee and Plan Administrator shall be entitled to rely upon the representations of the withdrawing Adopting Employer that the recipient trust is qualified to accept the transfer. To the extent the transfer adversely affects this Trust or the recipient trust, the withdrawing Adopting Employer shall indemnify and hold harmless this Trust, the Trustee, the Sponsor, the Plan Administrator, other Adopting Employers, and all others so negatively impacted. ©HaynesHitesman, PC 2006 11 America's VEBA Solution REBA III Trust Agreement ARTICLE VII. GENERAL PROVISIONS 7.1 No Reversion to the Plan Administrator or Adopting Employer. No part of the corpus or income of the Trust shall revert to the Plan Administrator or an Adopting Employer or be used for or diverted to, purposes other than the exclusive benefit of Participants and other persons entitled to benefits under the Plan. 7.2 Persons Dealing With Trustees. No person dealing with the Trustee shall be required to see to the application of any money paid or property delivered to the Trustee, or to determine whether or not the Trustee is acting pursuant to any authority granted under the Trust. 7.3 Non-Alienation of Benefits. Benefits payable under this Plan shall not be subject to anticipation, alienation, sale, transfer, execution, or levy of any kind either voluntary or involuntary, including any such liability which is for alimony or other payments for the support of a spouse or former spouse, or for any other relative of the Participant, prior to actually being received by the person entitled to the benefit under the terms of the Plan, and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or otherwise dispose of any right to benefits payable under the Plan shall be void. The Trustee, Adopting Employer, Plan Administrator and/or Plan Supervisor shall not in any manner be made liable for, or subject to, the debts, contracts, liabilities, engagements or torts of any person entitled to benefits under the Plan. 7.4 No Third Party Beneficiaries. The provisions of this Trust Agreement are intended to benefit only the parties hereto, their respective successors and assigns, and participants and their beneficiaries under the Plan. There are no other third party beneficiaries. 7.5 Governing Law. This Trust shall be construed and enforced according to the laws of the State of Minnesota, except to the extent preempted by federal law. 7.6 Execution in Counterparts. This Trust Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and said counterparts shall constitute but one and the same instrument and may be sufficiently evidenced by one counterpart. ©HaynesHitesman, PC 2006 12 America's VEBA Solution REBA III Trust Agreement IN WITNESS WHEREOF, the parties hereto have executed this Trust Agreement as of the effective date set forth above. Retirement Enhancement and U.S. Bank National Association, Benefit Alternatives Program, as Directed Trustee as Sponsor By: /S/ Niki K. Lightfoot By: /S/ Barry Wallerstedt Name: Niki K. Lightfoot Name: Barry Wallerstedt Title: REBA President Title: Vice President Acknowledged and Accepted by Genesis Employee Benefits, Inc. d.b.a. America's VEBA Solution, as Plan Supervisor: By: /S/ Richard J. Allen, Jr. Name: Richard J. Allen, Jr. Title: President ©HaynesHitesman, PC 2006 13 America's VEBA Solution REBA III Trust Agreement REBA MEMBER ADMINISTRATION AGREEMENT Effective June 1, 2007 between Genesis Employee Benefits, Inc. d/b/a America's VEBA Solution ("Plan Supervisor") and City of Eden Prairie ("Member") WHEREAS, the Member has heretofore adopted the Retirement Enhancement and Benefit Alternatives VEBA Plan (the "Plan") and Retirement Enhancement and Benefit Alternatives Voluntary Employees' Beneficiary Association Trust III (the "Trust"); and WHEREAS, the Plan appoints the Plan Administrator to act on behalf of the Plan; and WHEREAS, the Plan Administrator has entered into an Administration Agreement with the Plan Supervisor, effective July 1, 2006, with respect to the operation and administration of the Plan and the Trust on behalf of the Member and other employers that have adopted the Plan and Trust (the "Master Agreement"); and WHEREAS, pursuant to the Master Agreement, the Plan Supervisor has agreed to perform services with respect to the operation and administration of the Plan and the Trust that benefit the Member; WHEREAS, the Member is not a party to the Master Agreement; and WHEREAS, the Member and Plan Supervisor wish to enter an agreement to identify the Member's rights and obligations with respect to the operation and administration of the Plan and the Trust; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and the exhibits and addenda, if any, attached hereto, the Member and the Plan Supervisor hereby agree as follows: © HaynesHitesman, PC 2006 1 REBA VEBA III Sub-ASA(No. 7.0.0.0) I. Definitions The following Definitions shall apply to this Agreement: A. Adoption Agreement — means the Retirement Enhancement and Benefit Alternatives Voluntary Employees' Beneficiary Association Basic Plan Adoption Agreement for the Member. B. Agreement - means this REBA Member Administration Agreement and any exhibits and addenda attached hereto and any outside agreements specifically incorporated by reference. C. Master Agreement — means the Administration Agreement between the Plan Administrator and the Plan Supervisor, effective July 1, 2006. D. Member — means the City of Eden Prairie. E. Plan — means the Retirement Enhancement and Benefit Alternatives VEBA Plan. For the Member, the Plan may also be known by the name identified in the Member's Adoption Agreement. F. Plan Administrator — means the advisory council of the Retirement Enhancement and Benefit Alternatives Program. G. Plan Supervisor — means Genesis Employee Benefits, Inc. d/b/a America's VEBA Solution ("AVS"), an independent contractor designated to perform certain administrative services with respect to the Plan and Trust. Genesis Employee Benefits, Inc. was formerly known as Employee Benefit Technology Systems, L.L.C. H. Trust — means the Retirement Enhancement and Benefit Alternatives VEBA Trust III. I. Trust Agreement — means agreements by which the Trust were established, as amended from time to time. J. Trustee — means the person or entity appointed as trustee pursuant to the Trust Agreement. II. RIGHTS AND DUTIES OF MEMBER. A. Generally. The Member shall have the rights and duties with respect to the operation and administration of the Plan and the Trust as assigned to Members under the Master Agreement, which is incorporated herein by reference and attached hereto as Exhibit A. Furthermore, to the extent the Plan Administrator does not fulfill its obligations and responsibilities © HaynesHitesman, PC 2006 2 REBA VEBA III Sub-ASA(No. 7.0.0.0) under the Master Agreement, the Member, along with the other employers that have adopted the Plan and Trust, shall collectively be responsible for fulfilling such obligations and responsibilities. B. Plan Supervisor Fees. The Member shall be responsible for payment of a portion of the annual fees charged by the Plan Supervisor pursuant to the Master Agreement. The Member shall be responsible for the portion of such fees attributable to the Plan participants participating through the Member and/or the assets of the Trust(s) attributable to the Member at the rates identified in Exhibit B. The Plan Supervisor fees shall be paid as provided in the Member's Adoption Agreement. C. Trustee Fees. The Member shall be responsible for payment of all or a portion of the annual fees charged by the Trustee(s) for the Trust(s) in which the Member participates. If the Trustee's fee is a lump sum fee, the Member's portion of such fee shall be equal to the amount of the annual fee divided by the number of employers participating in the Trust at the time the fee is charged by the Trustee. If the Trustee fee is a per employer fee, the Adoption Employer shall be responsible for the entire amount of the per employer fee. The Trustee fees shall be paid as provided in the Member's Adoption Agreement. D. Authorized Representatives. Until otherwise advised in writing by the Members, the Plan Supervisor may accept the authority and rely upon the instructions of, or documents signed by, any representatives of the Members listed in Exhibit C. Additional documentation, specifying persons authorized for various purposes, may also be executed by the parties from time to time, and the Plan Supervisor shall be entitled to rely upon such documentation without question, unless it has actual knowledge that such person's authority has been revoked. III. Term and Termination A. Term. This Agreement is effective as of the date first written hereinabove and shall continue for a period of sixty (60) consecutive months and for each twenty-four (24) consecutive month period thereafter until the termination of this Agreement pursuant to this Section III of the Agreement. B. Termination. This Agreement shall terminate upon termination of the Master Agreement or upon the Member ceasing to participate in the Plan and Trust. In the event this Agreement terminates as a result of the Member ceasing to participate in the Plan and Trust prior to July 1, 2011, unless the reason for such withdrawal is cause, as described in Section VII.C. of the Master Agreement, attributable to the Plan Supervisor, the © HaynesHitesman, PC 2006 3 REBA VEBA III Sub-ASA(No. 7.0.0.0) Member shall pay to the Plan Supervisor an early termination fee equal to 1% of the value of the assets held in the Trust attributable to the Member at the time of the termination. Such early termination fee shall be paid within thirty (30) days following the effective date of said early termination and prior to the transfer of records described in Section V.D. of the Master Agreement. Notwithstanding the expiration or termination of this Agreement, the provisions of this Article III shall remain in force. IV. Miscellaneous A. Agreement Amendment. This Agreement may be amended only by mutual agreement in writing executed by all parties, except that the Plan Supervisor may amend this Agreement to the extent necessary to comply with applicable federal, state or local laws or regulations. B. Severability. The provisions of this Agreement are severable. If any provision of this Agreement is held invalid by a court of law or other tribunal, the invalidity of any provision will not affect any other provision of this Agreement. C. No Waiver of Rights. Nothing in this Agreement shall be deemed to limit or abrogate any right or remedy available under law. The failure of any party to insist upon the strict observation or performance of any provision of this Agreement or to exercise any right or remedy shall not impair or waive any such right or remedy. D. Non-Assumption of Liabilities. Unless specifically provided in this Agreement, the parties do not assume the existing or future obligations, liabilities or debts of the other party. E. Entire Agreement. This Agreement shall supersede and replace any and all other agreements between the parties relating to the same subject matter. This Agreement contains the entire agreement and understanding of the parties relating to the subject matter hereof, except as otherwise provided in this Agreement. F. Governing Law. The Agreement shall be governed by and interpreted in accordance with applicable federal law. To the extent the federal law does not govern, this Agreement shall be governed by the laws of the State of Minnesota and the courts in such state shall have sole and exclusive jurisdiction of any dispute related hereto and arising hereunder. G. Independent Contractors. The Plan Supervisor shall be construed to be acting as an independent contractor and not as an employee of the © HaynesHitesman, PC 2006 4 REBA VEBA III Sub-ASA(No. 7.0.0.0) Member. The Plan Supervisor and the Member shall not have the power or authority to act for or on behalf of, or to bind the other party, except as set forth in this Agreement. H. Third Party Beneficiaries. The obligations of each party to this Agreement shall inure solely to the benefit of the other signatory party(ies). Except as expressly provided in this Agreement, no person or entity is intended to be or shall be construed or deemed to be a third party beneficiary of this Agreement. I. Successors and Assigns. This Agreement shall be binding on any successors, assigns and subcontractors of the parties authorized under this Agreement. J. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. K. Force Majeure. Neither party shall be liable for any delay or failure to perform its obligations under this Agreement arising out of a cause beyond its control or without its fault or negligence. Such causes may include, but are not limited to, fires, floods, and natural disasters. IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the effective date of the Plan. MEMBER By: PLAN SUPERVISOR By: Authorized Representative of Genesis Employee Benefits, Inc. d/b/a America's VEBA Solution Its President © HaynesHitesman, PC 2006 5 REBA VEBA III Sub-ASA(No. 7.0.0.0) LIST OF EXHIBITS A Master Agreement B Fee Schedule C Authorized Representatives ©HaynesHitesman, PC 2006 6 REBA VEBA III Sub-ASA(No. 7.0.0.0) EXHIBIT A Master Agreement ©HaynesHitesman, PC 2006 7 REBA VEBA III Sub-ASA(No. 7.0.0.0) EXHIBIT B Administrative Fees The Member shall make payments of administrative service fees in accordance with the following schedule: Service Description Fee Standard Services Initial set-up N/C Standard communication materials N/C Voice Response System N/C Participant and Plan Sponsor websites N/C Annual participant statements mailed to employer for distribution N/C Recordkeeping fee for all Participants, including annual asset-based fee $2.35 PPPM (until June 30, 2009) plus 0.10% Recordkeeping fee for all Participants, including annual asset-based fee $2.55 PPPM (after June 30, 2009) plus 0.10% Standard claims processing* for claim active Participants (until June 30, $4.60 PPPM 2009) Standard claims processing* for claim active Participants (after June 30, $5.05 PPPM 2009) PPPM = Per Participant Per Month * "Standard claims processing" is claims processing that occurs no more frequently than twice per month. ©HaynesHitesman, PC 2006 8 REBA VEBA III Sub-ASA(No. 7.0.0.0) Optional Services Home mailing of participant statements (per participant per statement) .50X Annual asset-based omnibus account recordkeeping (charged quarterly) 0.20% Amendments requested by Plan Administrator $250 each Non-discrimination testing (per test) $325 Consulting to correct failed discrimination tests $150/hour Per employee meeting (plus travel expenses) $275 Multi-site billing and accounting (per location) $25 Wire transfer fee (Automated Clearinghouse - N/C) $20 © HaynesHitesman, PC 2006 9 REBA VEBA III Sub-ASA(No. 7.0.0.0) EXHIBIT C Authorized Representatives Name: _ Signature: Name: Signature: Name: Signature: Name: Signature: ©HaynesHitesman, PC 2006 10 REBA VEBA III Sub-ASA(No. 7.0.0.0) RETIREMENT ENHANCEMENT AND BENEFIT ALTERNATIVES VOLUNTARY EMPLOYEES' BENEFICIARY ASSOCIATION PLAN COBRA POLICIES AND PROCEDURES 1.1 Pursuant to Section 12.2 of the Retirement Enhancement and Benefit Alternatives Voluntary Employees' Beneficiary Association Plan (the "Plan"), the following policies and procedures ("policy") shall apply to continuation coverage provided under the Plan as required by the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"). 1 2.1 Termination of Employment or Reduction in Hours Upon termination of a participant's employment, or a reduction of a participant's hours, resulting in a loss of coverage for purposes of COBRA, the participant and each other qualified beneficiary (i.e., the participant's spouse and eligible dependents) will be offered COBRA continuation coverage for a period of 18 months. For this purpose, "loss" shall include any change in the terms and conditions of coverage including but not limited to the termination or reduction of employer contributions. a) Contributions during COBRA continuation. 1. If during the continuation period, the employer makes contributions on behalf of similarly situated participants who have not experienced a qualifying event, contributions shall be required to be made to the account of a participant electing COBRA coverage. Contributions shall be made at the same times as they are made for similarly situated participants who have not experienced a qualifying event. 2. If during the continuation period, the employer makes no contributions on behalf of similarly situated participants who have not experienced a qualifying event, no contributions shall be required to be made to the account of a participant electing COBRA coverage. Example: If contributions are available only if covered by a particular group health plan (i.e., a high deductible major medical plan), and the participant elects not to continue coverage under the group health plan, no contributions would be made to similarly situated employees and, therefore, no contributions would be made for the participant electing COBRA. b) COBRA premiums. 1. The participant and other qualified beneficiaries electing COBRA coverage (hereinafter referred to collectively as the "COBRA participants") shall be jointly responsible for paying an aggregate monthly premium. The premium shall be an estimate of the cost of providing coverage to participants that have not experienced a qualifying event,plus a 2% administrative fee. 2. The monthly premium will be calculated as follows: (a) Estimate the contributions to the plan and administration costs to the plan on a per-participant basis for the determination period (i.e., the plan year) and divide by twelve; and (b) Add the 2% administration fee to the estimated monthly cost. 3. If the COBRA premium payment is not made, in whole or in part, COBRA coverage for all COBRA participants, with respect to both the receipt of contributions and access to the account, shall, in accordance with the 2 requirements of COBRA, terminate effective the date through which the last premium was paid. 4. If no ongoing contributions are to be made during the CORBA continuation period in accordance with Section 2.1(a)(2), then no premium shall be charged to the COBRA participants. c) Access to the HRA account. 1. Each COBRA participant shall have access to the participant's HRA account for the period of COBRA continuation coverage. There shall be no separate accounts established. Rather, all COBRA participants will have access to the same participant's HRA account on an aggregate basis. 2. The maximum reimbursement available to any COBRA participant shall be the balance of the participant's account at the time the claim is processed for payment. The balance of the account will be adjusted from time to time for ongoing contributions, if any, accepted claims of any COBRA participant, investment earnings/losses, and administrative fees chargeable to the participant's account, if any. 3. Eligible expenses shall continue to include eligible expenses incurred by the participant, the participant's spouse, and the participant's eligible dependents regardless of whether the spouse and dependents have elected COBRA continuation coverage. Where the definition of eligible expense depends on the participant's employment, the more generous definition of eligible expense, typically the definition for former employees, shall apply. 4. Upon expiration of the COBRA continuation period, or any extension thereof, unless a qualified beneficiary has elected coverage in lieu of COBRA coverage, the balance of the participant's HRA account shall be forfeited in accordance with the terms of the Plan. d) Second qualifying events. 1. If a spouse or dependent who has elected COBRA coverage experiences a second qualifying event during the 18-month continuation period, an extended period of COBRA coverage may be available; and, if available, shall be provided in accordance with COBRA and the other sections of this Policy. e) Coverage in lieu of COBRA coverage. 1. In accordance with the HRA guidance issued by the Internal Revenue Service, as an alternative to and in lieu of COBRA coverage, the participant and each other qualified beneficiary may elect to continue to participate for the sole purpose of spending down the participant's HRA account. For the participant, such access shall be provided until the earlier of: (1) the date 3 account balance reaches zero or (2) the date of the participant's death. For a spouse of the participant, such access shall be provided until the earlier of: (1) the date account balance reaches zero, (2) the date of the participant's death, or (3) the date of the entry of a valid divorce decree. For a dependent of the participant, such access shall be provided until the earlier of: (1) the date account balance reaches zero, (2) the date of the participant's death, or (3) the date the dependent ceases to be a dependent under the terms of the Plan. 2. Unless specifically included as part of the alternative to COBRA coverage, no additional contributions will be made to the participant's account during the period of coverage provided in lieu of COBRA. 3. Access to the account during coverage in lieu of COBRA shall be provided on an aggregate basis, the same as it would if COBRA were elected. 4. Eligible expenses shall continue to include eligible expenses incurred by the participant, the participant's spouse, and the participant's eligible dependents regardless of whether the spouse and dependents elect COBRA continuation coverage or the coverage in lieu of COBRA. Where the definition of eligible expense depends on status of the participant's employment, the more generous definition of eligible expense, typically the definition for former employees, shall apply. 5. If a second qualifying event occurs during the coverage in lieu of COBRA (i.e., the participant's death, a divorce, or a child ceasing to be an eligible dependent), COBRA coverage with respect to the coverage in lieu of COBRA will be offered to the participant's spouse and/or eligible dependents measured from the date of the second qualifying event. 6. If some qualified beneficiaries elect COBRA coverage and others elect coverage in lieu of COBRA, the COBRA participants shall be charged the aggregate COBRA premium, if any, and all covered individuals (the COBRA participants and those electing coverage in lieu of COBRA) shall be entitled to access the participant's account, including ongoing contributions, if any, on an aggregate basis. f) Special rules for post-employment plans. 1. If the plan provides contributions during employment, but access to the account is available only after termination of employment, termination of employment is still a loss triggering COBRA. COBRA should be offered in accordance with the foregoing rules, including the rules regarding continued employer contributions if they would have been made in the absence of the COBRA event and COBRA premiums. In addition, post-termination access should be offered and treated as coverage in lieu of COBRA. 4 2. If the plan provides for contributions only upon termination of employment (i.e., a conversion of severance and/or accrued leave), there is no loss triggered by termination of employment and COBRA does not apply. This is true whether such contributions are made in a lump sum or over time. Access to the account to spend it down is available. However, because there is no COBRA required, the ability to spend down the account is not coverage in lieu of COBRA. g) Multiple rights to continuation. 1. Special coordination requirements apply where multiple individuals have continuation rights attributable to multiple qualifying events, including coverage that may be available in lieu of COBRA. In these situations, multiple individuals will have simultaneous, undivided interests in the aggregate account balance. However, these individuals' interests in the account balance will differ in duration. 2. Example of the foregoing rule. Participant in a plan that provides pre- and post-employment access to the account gets divorced and the ex-spouse elects continuation coverage. Six months later, the participant remarries. Six months after re-marrying, the participant dies and new spouse elects coverage in lieu of COBRA. In this case, ex-spouse gets access to the account for 36 months measured from the date of the divorce. Such access is shared with the participant. When the participant remarries, access is further shared with the participant's new spouse. When the participant dies, ex-spouse has 12 months of access remaining and no extension is provided because of the participant's death. However, during those 12 months, ex-spouse will share access with new spouse, who elected coverage in lieu of COBRA. Provided the account is not exhausted during those 12 months, new spouse will have access to the account beyond ex-spouse's access until such time as the account has been spent down or the new spouse dies. 5 2.2 Death of Employee Upon the death of a participant, the participant's surviving spouse and eligible dependents will be offered COBRA continuation coverage for a period of 36 months. a) Employer contributions during COBRA continuation. 1. If during the continuation period, the employer makes contributions on behalf of similarly situated participants who have not experienced a qualifying event, contributions shall be required to be made to the account of the deceased participant whose surviving spouse and/or dependents have elected COBRA coverage. Contributions shall be made at the same times as they are made for similarly situated participants who have not experienced a qualifying event. 2. If during the continuation period, the employer makes no contributions on behalf of similarly situated participants who have not experienced a qualifying event, no contributions shall be required to be made to the account of the deceased participant. Example: If contributions are available only if covered by a particular group health plan (i.e., a high deductible major medical plan), and the participant elects not to continue coverage under the group health plan, no contributions would be made to similarly situated employees and no contributions would be available for the participant electing COBRA. b) COBRA premiums. 1. The surviving spouse and dependents electing COBRA coverage (hereinafter referred to collectively as the "COBRA participants") shall be jointly responsible for paying an aggregate monthly premium. The premium shall be equal to the cost of providing coverage to participants that have not experienced a qualifying event, plus a 2% administrative fee, and shall be calculated as provided in Section 2.1(b).2. 2. If the COBRA premium payment is not made, in whole or in part, COBRA coverage for all COBRA participants, with respect to both the receipt of contributions and access to the account, shall, in accordance with the requirements of COBRA, terminate effective the date through which the last premium was paid. 3. If no ongoing contributions are to be made during the CORBA continuation period in accordance with Section 2.2(a)(2), then no premium shall be charged to the COBRA participants. 6 c) Access to the HRA account. 1. Each COBRA participant shall have access to the deceased participant's HRA account for the period of COBRA continuation coverage. There shall be no separate accounts established. Rather, all COBRA participants will have access to the same participant's account on an aggregate basis. Because the participant's death terminates his/her employment, access is available for purposes of COBRA even if a participant's access does not normally begin until termination of employment. 2. The maximum reimbursement available to any one COBRA participant shall be the balance of the deceased participant's account at the time the claim is processed for payment. The balance of the account will be adjusted from time to time for ongoing contributions, if any, accepted claims of any COBRA participant, investment earnings/losses, and administrative fees chargeable to the deceased participant's account, if any. 3. Eligible expenses shall be limited to eligible expenses incurred by the surviving spouse and surviving dependents electing COBRA coverage. Expenses incurred by the surviving spouse and/or surviving dependents who do not elect COBRA, the surviving spouse's new spouse, or the surviving spouse's dependents that were not dependents of the participant are not eligible. Where the definition of eligible expense depends on the participant's employment, the more generous definition of eligible expense, typically the definition for former employees, shall apply. 4. Upon expiration of the COBRA continuation period, unless a qualified beneficiary has elected coverage in lieu of COBRA coverage, the balance of the participant's HRA account shall be forfeited in accordance with the terms of the Plan. d) Coverage in lieu of COBRA coverage. 1. In accordance with the HRA guidance issued by the Internal Revenue Service, as an alternative to and in lieu of COBRA coverage, the surviving spouse and surviving dependents may elect to continue to participate for the sole purpose of spending down the deceased participant's account. Such access shall be provided until the earlier of: (1) the date account balance reaches zero or (2) the date on which the last person electing such coverage dies. For the purpose of this Policy, a surviving dependent is a person who at the time of the participant's death satisfied the definition of dependent under the Internal Revenue Code and the Plan. 2. No additional contributions will be made to the deceased participant's account during the period of coverage provided in lieu of COBRA. 3. Access to the account during coverage in lieu shall be provided on an aggregate basis; the same as it would if COBRA were elected. 7 4. Eligible expenses shall be limited to eligible expenses incurred by the surviving spouse and surviving dependents electing coverage in lieu of COBRA. Expenses incurred by the surviving spouse and/or surviving dependents who do not elect COBRA, the surviving spouse's new spouse, or the surviving spouse's dependents that were not dependents of the participant are not eligible. Where the definition of eligible expense depends on the participant's employment, the more generous definition of eligible expense, typically the definition for former employees, shall apply. 5. Second qualifying events are not applicable to this coverage in lieu. 6. If some qualified beneficiaries elect COBRA coverage and other elect coverage in lieu of COBRA, the COBRA participants shall be charged COBRA premiums and all covered individuals (the COBRA participants and those electing coverage in lieu of COBRA) shall be entitled to access to deceased participant's account, including ongoing contributions, if any, on an aggregate basis. 7. If the adopting employer has elected to provide a death benefit (i.e., allowing access to the participant's account by a designated beneficiary other than the surviving spouse or dependents), the death benefit cannot operate to defeat the COBRA rights of the qualified beneficiaries. Therefore, the death benefit can only be provided following COBRA coverage, upon the expiration of coverage in lieu of COBRA, or upon election by the person(s) otherwise eligible for COBRA to take the death benefit as an alternative to and in lieu of the COBRA coverage. e) Multiple rights to continuation. 1. Special coordination requirements apply where multiple individuals have continuation rights attributable to multiple qualifying events, including coverage that may be available in lieu of COBRA. In these situations, multiple individual will have simultaneous, undivided interests in the aggregate account balance. However, these individuals' interests in the account balance will differ in duration. See the example at Section 2.1(g)2. 8 2.3 Divorce Upon divorce, the participant's ex-spouse will be offered COBRA continuation coverage for a period of 36 months, because coverage as a spouse under the plan terminates at the time the divorce decree is entered. a) Contributions during COBRA continuation. 1. Contributions, if any, shall continue to be made to the participant's account as though no divorce has occurred. 2. If during the COBRA continuation period, the employer would make no contributions to the participant's account regardless of the occurrence of the divorce, no contributions shall be required to be made to the participant's account because of the ex-spouse's election of COBRA. b) COBRA premiums. 1. The ex-spouse electing COBRA coverage shall be responsible for paying a monthly premium. The premium shall be equal to the cost of providing coverage to participants that have not experienced a qualifying event, plus a 2% administrative fee, and shall be calculated as provided in Section 2.1(b).2. 2. If the COBRA premium payment is not made, in whole or in part, COBRA coverage for the ex-spouse shall, in accordance with the requirements of COBRA, terminate effective the date through which the last premium was paid. 3. If no contributions are to be made during the CORBA continuation period in accordance with Section 2.3(a)(2), then no premium shall be charged to the ex-spouse electing COBRA. c) Access to the HRA account. 1. An ex-spouse electing COBRA shall have access to the participant's HRA account for the period of COBRA continuation coverage. There shall be no separate account established. Rather, the ex-spouse will have access to the participant's HRA account along with the participant and the participant's dependents, if any, on an aggregate basis. 2. The maximum reimbursement available to all persons with access to the participant's account (i.e., the participant, the participant's dependents, and the ex-spouse with COBRA coverage) shall be the balance of the participant's account at the time the claim is processed for payment. The balance of the account will be adjusted from time to time for ongoing contributions, if any, accepted claims of any persons with access to the account, investment earnings/losses, and administrative fees chargeable to the participant's account, if any. 9 3. The ex-spouse electing COBRA coverage shall be entitled to reimbursement for eligible expenses (as defined by the plan) incurred by the ex-spouse, the ex-spouse's dependents, and dependents of the participant. 4. Where the definition of eligible expense is tied to expenses that would be covered by a coordinating major medical plan but for such plan's deductible, co-pay, and co-insurance requirements, the ex-spouse will have eligible expenses only if he/she maintains coverage under the major medical plan. d) Coverage in lieu of COBRA coverage. 1. Because the expenses of an ex-spouse cannot be reimbursed by an HRA according to the HRA guidance, no coverage can be offered as an alternative to and in lieu of COBRA coverage. Nontaxable reimbursements to an ex- spouse are available only if the ex-spouse is covered via COBRA. e) Divorce as a second qualifying event. 1. If divorce occurs during COBRA continuation coverage following the termination of the participant's employment, or the reduction of the participant's hours, or if divorce occurs during coverage in lieu of COBRA provided following such events, the participant's ex-spouse shall have COBRA continuation rights as described in this Section 2.3. 2. Notwithstanding the foregoing, if an ex-spouse elects COBRA coverage as the result of a divorce during the 18-month COBRA continuation period following termination of employment or reduction in hours and contributions will be ongoing, then, for the time period during which both the participant and the ex-spouse have COBRA continuation coverage, the aggregate COBRA premium shall be divided and charged equally between the participant and the ex-spouse. Upon expiration or termination of the participant's or ex-spouse's COBRA coverage, the person continuing COBRA coverage shall be responsible for paying the full aggregate COBRA premium. 3. Notwithstanding the foregoing, if an ex-spouse elects COBRA coverage as the result of a divorce during coverage in lieu of COBRA following termination of employment or reduction in hours, no contributions will be made to the participant's account during the ex-spouse's COBRA coverage and no COBRA premium will be charged to the ex-spouse. f) Special rules for post-employment plans. 1. If the plan limits access to the participant's account until after termination of employment, the ex-spouse will be entitled to access to the account only if the participant's employment terminates employment during the 36 month COBRA period. In other words, if an ex-spouse elects COBRA with respect to such a plan, the ex-spouse will receive benefits only in the event the 10 participant happens to terminate employment (other than because of death) and obtains access during the COBRA period. The reason for this rule is that COBRA entities qualified beneficiaries to the same coverage as similarly situated participants that have not experienced a qualifying event. Thus, if a participant (and the participant's family) cannot access the account until after termination of employment, COBRA participants cannot do so either. 2. Despite the fact the ex-spouse may not have access to the participant's account, the COBRA premium described above will be charged to the ex- spouse. g) Domestic relations orders. 1. Access to a participant's account by an ex-spouse other than as a COBRA qualified beneficiary is not allowed under the HRA guidance issued by the Internal Revenue Service. Access is restricted to the participant, the participant's spouse and dependents, and the participant's surviving spouse and dependents following the participant's death. Providing access to an ex- spouse pursuant to a domestic relations order would cause any reimbursements made to the ex-spouse to be taxable and would jeopardize the status of the plan as an HRA. Accordingly, domestic relations orders requiring the plan to provide access to an ex-spouse who has not elected COBRA will not be recognized. h) Multiple rights to continuation. 1. Special coordination requirements apply where multiple individuals have continuation rights attributable to multiple qualifying events, including coverage that may be available in lieu of COBRA. In these situations, multiple individual will have simultaneous, undivided interests in the aggregate account balance. However, these individuals' interests in the account balance will differ in duration. See the example at Section 2.1(g)2. 11 2.4 Dependent Ceasing To Be an Eligible Dependent Under the Plan Upon a child ceasing to be a dependent, the participant's former dependent will be offered COBRA continuation coverage for a period of 36 months, because coverage of the individual under the plan terminates at the time the dependent ceases to be a dependent. a) Contributions during COBRA continuation. 1. Contributions, if any, shall continue to be made to the participant's account as though no qualifying event has occurred. 2. If during the COBRA continuation period, the employer would make no contributions to the participant's account regardless of the occurrence of the COBRA event, no contributions shall be required to be made to the participant's account because of the former dependent's election of COBRA. b) COBRA premiums. 1. The former dependent electing COBRA coverage shall be responsible for paying a monthly premium. The premium shall be equal to the cost of providing coverage to participants that have not experienced a qualifying event, plus a 2% administrative fee, and shall be calculated as provided in Section 2.1(b).2. 2. If the COBRA premium payment is not made, in whole or in part, COBRA coverage for the former dependent shall, in accordance with the requirements of COBRA, terminate effective the date through which the last premium was paid. 3. If no contributions are to be made during the CORBA continuation period in accordance with Section 2.4(a)(2), then no premium shall be charged to the ex-spouse electing COBRA. c) Access to the HRA account. 1. A former dependent electing COBRA shall have access to the participant's HRA account for the period of COBRA continuation coverage. There shall be no separate account established. Rather, the former dependent will have access to the participant's HRA account along with the participant and the participant's spouse and other dependents, if any, on an aggregate basis. 2. The maximum reimbursement available to all persons with access to the participant's account (i.e., the participant, the participant's spouse, the participant's dependents, and the former dependent with COBRA coverage) shall be the balance of the participant's account at the time the claim is processed for payment. The balance of the account will be adjusted from time to time for ongoing contributions, if any, accepted claims of any persons 12 with access to the account, investment earnings/losses, and administrative fees chargeable to the participant's account, if any. 3. The former dependent electing COBRA coverage shall be entitled to reimbursement for eligible expenses (as defined by the plan) incurred by the former dependent and the former dependent's spouse and dependents. 4. Where the definition of eligible expense is tied to expenses that would be covered by a coordinating major medical plan but for such plan's deductible, co-pay, and co-insurance requirements, the former dependent will have eligible expenses only if he/she maintains coverage under the major medical plan. d) Coverage in lieu of COBRA coverage. 1. Because the expenses of a former dependent cannot be reimbursed by an HRA according to the HRA guidance, no coverage can be offered as an alternative to and in lieu of COBRA coverage. Nontaxable reimbursements to a former dependent are available only if the former dependent is covered via COBRA. e) Ceasing to be a dependent as a second qualifying event. 1. If a dependent ceases to be an eligible dependent during COBRA continuation coverage following the termination of the participant's employment, or the reduction of the participant's hours, or if a dependent ceases to be an eligible dependent during coverage in lieu of COBRA provided following such events, the participant's former dependent shall have COBRA continuation rights as described in this Section 2.4. 2. Notwithstanding the foregoing, if a former dependent elects COBRA coverage as the result of ceasing to be an eligible dependent during the 18- month COBRA continuation period following termination of employment or reduction in hours and contributions will be ongoing, then, for the time period during which both the participant and the former dependent have COBRA continuation coverage, the aggregate COBRA premium shall be divided and charged equally between the participant and the former dependent. Upon expiration or termination of the participant's or former dependent's COBRA coverage, the person continuing COBRA coverage shall be responsible for paying the full aggregate COBRA premium. 3. Notwithstanding the foregoing, if a former dependent elects COBRA coverage as the result of ceasing to be an eligible dependent during coverage in lieu of COBRA following termination of employment or reduction in hours, no contributions will be made to the participant's account during the former dependent's COBRA coverage and no COBRA premium will be charged to the former dependent. 13 f) Special rules for post-employment plans. 1. If the plan limits access to the participant's account until after termination of employment, the former dependent will be entitled to access to the account only if the participant's employment terminates employment during the 36 month COBRA period. In other words, if a former dependent elects COBRA with respect to such a plan, the former dependent will receive benefits only in the event the participant happens to terminate employment (other than because of death) during the COBRA period. The reason for this rule is that COBRA entities qualified beneficiaries to the same coverage as similarly situated participants that have not experienced a qualifying event. Thus, if a participant (and the participant's family) cannot access the account until after termination of employment, COBRA participants cannot do so either. 2. Despite the fact the former dependent may not have access to the participant's account, the COBRA premium described above will be charged to the former dependent. g) Multiple rights to continuation. 1. Special coordination requirements apply where multiple individuals have continuation rights attributable to multiple qualifying events, including coverage that may be available in lieu of COBRA. In these situations, multiple individual will have simultaneous, undivided interests in the aggregate account balance. However, these individuals' interests in the account balance will differ in duration. See the example at Section 2.1(g)2. 14 12 / 04 / 2003 THL 09 : 93 FAX 0 002 / 012 BYLAWS OF THE RETIREMENT ENHANCEMENT BENEFIT ALTERNATIVES AND ADVISORY COUNCIL ARTICLE I . ESTABLISHMENT . Section 1 . The Trust . The Retirement Enhancement and Benefit Alternatives ( " REBA ) Trust was established to provide public employers a comprehensive program through which to offer various health and welfare programs . Section 2 . The Council . The REBA Trust document provides that the Member Employers of the REBA have certain powers of oversight and direction of the REBA Program _ This Advisory Council is formed to provide such oversight and direction . ARTICLE II . PURPOSE . The purpose of this organization shall be to provide a governing body for the REBA Trust , a voluntary employee beneficiary association , qualified under Section 501 ( c ) ( 9 ) of the Internal Revenue Code of 1986 (the " Code ") . The organization shall have the responsibility for : 1 . Reviewing Trust operations and expenses . 2 . Monitoring the benefits provided by the REBA and exploring new benefit opportunities . 3 . Appointing and monitoring the performance of the Trustee and Trust Administrator . 4 . Determining Membership criteria and election procedures for the Advisory Council . I' 1050382 .2 B RIDER O E N N L T T 12 / 04 ' 2003 THU 09 : 33 FAX 0003 / 012 ARTICLE III . MEMBERSHIP . The qualifications and conditions of membership in the organization shall be as Wows : Section 1 . Representation . ( a ) Each Member Employer ( " Member " ) having active or retired participants in the REBA VEBA Plan shall have representation on the Advisory Council e qual to every other Member of the Advisory Council . ( b ) Each Member may select up to four ( 4 ) individuals ( " Representatives" ) to represent it at Advisory Council meetings . Selection of the Representatives shall be at the discretion of each individual Member. Section 2 . Property _ Rights . No Member or Representative shall have any right , title , or interest in or to any property of the Advisory Council or the Trust , solely by ✓ irtue of being a Member or Representative . Section 3 . Meetings of Members . ( a ) There shall be a minimum of one general meeting of the Members e ach year . ( b ) All Representatives on the Advisory Council shall be eligible to hold o ffice , to make motions before general meetings and to participate in discussions at the general meetings . ( c) Each Member shall have four ( 4 ) votes , which may be allocated among the Representatives of a single Member . Allocation of the votes , if any , among its Representatives shall be at the discretion of the Member . ( d ) Votes shall be made in person or by proxy . Proxy votes shall be in writing and submitted to the Secretary at or before the meeting . 105038Z 2 - 2 - RB RlDERBT. NNEi i 12 / 04 / 2003 THU 09 : 33 FAX vi004 / 012 ( e ) The presence of 50 % of the Representatives at a duly called meeting shall be required to constitute a quorum for the transaction of business . ( f) An action of the majority of the Representatives voting , in person or by proxy , shall be taken as the action of the Advisory Council . Section 4 . General Powers . The Advisory Council shall govern and oversee the business and affairs of the REBA Trust . The Members shall in all cases act as a Board of Directors , and in the transaction of business , the act of a majority of Representatives present at a meeting shall be the act of the Advisory Council , provided a quorum is present . The Members may adopt such rules and regulations for the conduct of meetings and the management of the Trust as they may deem proper , not inconsistent with these Bylaws . Section 5 . Compensation . No compensation shall be paid to any Member or Representative for services as a Member or Representative of the Advisory Council . Section 6 . Method of Selection . Each Member shall determine the method of selection of each of its Representatives . Each Member shall be entitled to four ( 4 ) votes , which it may allocate to its Representatives at its discretion , such that one Representative may be entitled to cast all or any of the votes allotted to the Member . Section 7 . Annual Meeting . The Advisory Council shall hold its annual meeting at such time and place in the State of Minnesota as may be designated by the Secretary , for the purpose of electing Officers of this organization and for the transaction of such other business as shall come before the meeting . At least fourteen ( 14 ) days ' notice of an annual meeting will be given to each Member . 1050382 -2 3 RB IIIDOR BCNNFTT 12 / 04 / 2003 THU 09 : 33 FAX 0 005 / 012 Section 8 . Regular Meetings . Regular meetings of the Advisory Council may be held from time to time at such times and places in the State of Minnesota as the Advisory Council may determine by resolution adopted by a majority vote . At least five ( 5 ) days ' notice of regular meetings will be given to each Member . Section 8 . Special Meetings . Special meetings of the Advisory Council may be called by the President , the Secretary or by any three (3 ) or more Members , by giving five ( 5 ) days ' notice to all Members of the date , time , place and purpose of the meeting . Section 10 , Place of Meetings . The Advisory Council may hold its meetings at such place or places as it may from time to time determine . Notice may be given by mail , e - mail , or telephone . Section 11 . Waiver of Notice . Notice of any meeting of the Advisory Council may be waived by any Member before , at or after the meeting , in writing or orally . Attendance by a Member at a meeting is a waiver of notice of that meeting , except where the Member objects at the beginning of the meeting to the transaction of business because the meeting is not lawfully called or convened and does not participate thereafter in the meeting . Section 12 . Quorum . Except as otherwise provided by these Bylaws , the presence , in person , of fifty percent ( 50 % ) of the total number of Representatives shall be required to constitute a quorum for the transaction of business at any meeting , and the act by a majority of the Representatives at a meeting at which a quorum is present shall be the act of the Advisory Council . In the absence of a quorum , a majority of the Representatives present may adjourn any meeting from time to time until a quorum is 1050362 . 2 4 - ItJ _ jY7 RTnr n BFNNL' TT 12 / 04 / 2003 THU 09 : 34 FAX 0 06 / 01 2 present . Notice of any adjourned meeting need not be given other than by announcement at the meeting at which adjournment is taken . If a quorum is present when a duly called or held Advisory Council meeting is convened , the Representatives present may continue to transact business until adjournment , notwithstanding that the withdrawal of a number of Members originally present leaves less than required for a quorum . Section 13 . Electronic Communications , A conference among Representatives , by any means of communication through which the participants may simultaneously hear each other during the conference , constitutes a meeting of the Representatives , if the same notice is given of the conference as would be required for a meeting , and if the number of persons participating in the conference would be sufficient to constitute a quorum at the meeting . Participation in a meeting by electronic means constitutes personal presence at the meeting . Section 14 . Written Action . Any action required or permitted to be taken at a meeting may be taken by a written action signed collectively , or individually in counterparts , by the number of Representatives whose vote would constitute a majority of the Representatives . Any such written action shall be effective when signed by the required number of Representatives indicated above , unless a different effective time is provided in the written action . When any written action is taken by less than all the Representatives , all Members shall be notified within five ( 5 ) days of its text and effective date . Section 15 . Vacancies . It shall be the Member ' s responsibility to fill any vacancy resulting from death , resignation , or disqualification of its Representative . 1050382• 2 5 - i T R RIFT F, q B p, NNF. T 'P 12 / 04 / 2003 THC 09 ; 34 FAX Z 007 / 012 Section 16 , Disqualification . A Representative shall be disqualified from serving as a Representatives of the Advisory Council if such Representative is no longer employed by the Member he/she represents , except that a retired employee of a Member shall be allowed to serve as a Representative if so designated by the Member. Section 17 . Committees . The Advisory Council may from time to time , by resolution , establish committees having the authority of the Advisory Council in the management of the business of the Trust to the extent provided in the resolution . Any committee so established shall consist of one ( 1 ) or more natural persons who need not be Representatives , and shall be subject at all times to the direction and control of the Advisory Council . At any meeting of any such committee the presence of a majority of the members of the committee shall be necessary to constitute a quorum for the transaction of business . Committees of the Advisory Council shall take action by the affirmative vote of a majority of committee members present at a duly held meeting , except where the affirmative vote of a larger proportion or number is required by the Advisory Council . Any action required or permitted to be taken at a committee meeting may be taken by a written action signed collectively , or individually in counterparts , by all members of such committee . Each committee shall keep a written record of its activities and shall submit such written record to the Advisory Council after each meeting and to the members of the committee . ARTICLE IV . OFFICERS AND AGENTS . Section 1 . Number . The officers of this organization , who shall be one or more natural persons , shall consist of a President , Secretary and a Treasurer, and may consist of such other officers as the Advisory Council may designate from time to time . All officers must be Representatives on the Advisory Council . 1050362 -2 _ 6 RB RIDERBENNFAi ' 12 / 04 / 2003 THU 09 : 34 FAX Z 008 / 012 Section 2 , Election and Term of Office . The officers shall be elected or appointed periodically by the Advisory Council . Each officer shall hold office for a period of two ( 2 ) years , or until their respective successors are duly elected , or until their e arlier death , resignation or removal , Section 3 . Resignation . Any officer may resign at any time by giving written n otice of resignation to the Advisory Council or to the President or to the Secretary of this organization . A resignation shall take effect at the later of the time specified in the written notice or the time the written notice is received by the organization . Unless o therwise specified in the written notice , the acceptance of a resignation shall not be n ecessary to make it effective . Section 4 . Removal . Any officer may be removed , with or without cause , by a two - thirds vote in favor of the removal , taken at a meeting called for the purpose of ✓ oting on the removal . The purpose of the meeting shall be stated in the notice or waiver of notice of the meeting . Section 5 . Vacancy , A vacancy in any office because of death , resignation , or removal shall be filled by a majority vote of the Representatives . Section 6 . President . The President of the organization shall : ( a ) when present , preside at all meetings of the Representatives ; ( b ) see that all orders and resolutions of the Advisory Council are carried into effect ; ( c) execute and deliver in the n ame of the Advisory Council ( except in cases in which such execution and delivery shall be expressly delegated to some other officer or agent of the Advisory Council or shall be required by law to be otherwise executed and delivered ) any contracts , reports , o r other instruments pertaining to the business of the Advisory Council , including , 1050382 • 2 - 7 - RT IIIDCR LENNCTT 12 / 04 / 2003 THU 09 : 35 FAX 0 09 / 01 2 without limitation , any instruments necessary or appropriate to enable the Advisory Council to act in furtherance of the purposes of this organization as described in these Bylaws ; ( d ) maintain records of and , when necessary , certify proceedings of the Advisory Council ; and ( e ) perform such other duties as may from time to time be prescribed by the Advisory Council . Section 7 . Secretary . The Secretary shall make and keep all records of the Advisory Council , shall attend to the giving and serving of all notices of the corporation and shall perform such other duties as may be required by the Advisory Council . Section 8 , Treasurer . The Treasurer of the Advisory Council shall : ( a ) keep accurate accounts of all moneys the Advisory Council receives or disburses , if any ; ( b ) deposit all moneys , drafts , and checks in the name of, and to the credit of , the organization in such banks and depositaries as the Advisory Council shall from time to time designate ; ( c ) have power to endorse for deposit all notes , checks , and drafts received by this organization ; ( d ) disburse the funds of this organization as ordered by the Advisory Council , making proper vouchers therefor ; (e ) render to the President and the Representatives , whenever requested , an account of all the transactions and of the financial condition of the Advisory Council ; and , (f) in general , perform all duties usually incident to the office of the Treasurer . Section 9 . Trust Administrator . Pursuant to Article IV of the Retirement Enhancement and Benefit Alternatives Trust Agreement , as adopted or hereafter amended by the parties thereto , the Advisory Council shall retain a Trust Administrator to oversee the operations of the Retirement Enhancement and Benefit Alternatives ( " REBA " ) Program . The Trust Administrator shall : 1050362- 2 _ 8 RB itioek oeNNerr 12 / 04 / 2003 THU 09 : 35 FAX 21010 / 012 ( a ) coordinate all the activities of the REBA Program , ( b ) retain consultants and other professionals , as needed , to carry on the functions of the REBA Program ; ( c) review and approve Trust expenses and direct the Trustee in the payment thereof ; ( d ) be compensated from the assets of the Trust or as otherwise contracted by the Advisory Council ; and ( e ) be subject to removal by a majority vote of the Advisory Council , or as otherwise provided in the REBA Trust Agreement . Section 10 . Other Officers , Agents , and Employees . This organization may have such other officers , agents , and employees as may be deemed necessary by the Members . Such other officers shall be elected and such other agents and employees shall be appointed in such manner , have such operational and administrative duties , and hold their offices for such terms as may be determined by resolution of the Advisory Council . ARTICLE V . INDEMNIFICATION . The organization shall , to the fullest extent permitted by Minnesota law , as now in effect or as hereafter amended , indemnify its officers and all Representatives for any act undertaken in performance of such duties as officers or Representatives of Members . ARTICLE VI . FINANCIAL MATTERS , Section 1 . Books and Records . The Advisory Council shall assign an agent or Member to keep at its registered or principal office , correct and complete books and records , necessary and appropriate to the conduct of the business of the Advisory Council , including minutes of the proceedings of its Members and any committees 1050382-2 - 9 - - '7_7 RIDER BENNQTT 12 / 04 / 2003 THU 09 : 35 FAX 0 O11 / 012 e stablished by the Representatives , and the names and addresses of the Representatives . All books and records of the organization may be inspected by any Representative , during normal business hours , for any proper purpose at any reasonable time . Section 2 . Documents . The Advisory Council shall cause to be kept by an agent or Member, originals or copies of: ( 1 ) records of all proceedings of the Advisory Council ; ( 2 ) all accounting records of this organization ; and ( 3 ) Bylaws of this organization and all amendments and restatements thereto . Section 3 . Fiscal Agents . This organization may designate such fiscal agents , investment advisors , investment counsel or managers , custodians , banks , or trust companies as the Members may from time to time deem appropriate and in the best interests of this organization . The Members may , at any time , with sixty ( 60 ) days notice , discontinue the use of the services of any such fiscal agent , investment advisor , investment counsel or manager , custodian , bank , or trust company . Section 4 . Contracts , Checks , Drafts , and Other Matters , The Advisory Council may authorize any officer or officers , agent or agents of the organization , in addition to the officers so authorized by these Bylaws , to enter into any contract or e xecute and deliver any instrument in the name of and on behalf of the corporation , and such authority may be general or confined to specific instances . All checks , drafts , or orders for the payment of money , notes or other evidences o f indebtedness issued in the name of the Advisory Council , if any , shall be signed by 1050382 -2 - 10 � RA RIOEMBENNETT 12 / 04 / 2003 THU 09 : 36 FAX 012 / 012 such manner as shall from time to time be determined by resolution of the Advisory Council . In the absence of such determination by the Advisory Council , such instruments shall be signed by the Treasurer or an Assistant Treasurer and countersigned by the President of the organization . All funds of the organization shall be deposited from time to time to the credit of the organization in such banks , trust companies or other depositaries as the Advisory Council may select . ARTICLE VII . AMENDMENTS . The Members may amend these Bylaws , as from time to time amended or restated , to include or omit any provision which could lawfully be included or omitted at the time such amendment or restatement is adopted . ARTICLE VIII . FISCAL YEAR . The fiscal year of the organization shall begin on the first day of January and end on the last day of December in each year . CERTIFICATION The undersigned , the Secretary of the organization , hereby certifies that the foregoing Bylaws were adopted pursuant to a resolution of the Members effective as of , 2003 . Secretary 1050382.2 _ 1 1RB _ R10 € 14 ➢ ENNLTT CITY COUNCIL AGENDA DATE: SECTION: June 5, 2007 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO: VIII.E. Office of City Manager Approval of Cafeteria Master Plan Karen Kurt, Human Resources Manager Requested Action Move to: Approve the City of Eden Prairie Cafeteria Plan Master Plan Document effective June 1, 2007. Synopsis Federal law provides preferential tax treatment for certain employee benefits provided a qualified cafeteria plan is in place. Our cafeteria plan allows employee contributions toward benefit premiums to be deducted from payroll on a pretax basis. The document also establishes pretax flexible spending accounts for qualified medical and dependent care expenses. This plan has been updated to reflect recent changes to our benefit plans and the legal environment. The most significant change involves the limit on medical flexible spending accounts. The limit will be increased from $3000 to $5000 per benefit year. This change will give employees in the City's new high deductible insurance plan an opportunity to set aside more money on a pretax basis to offset additional costs due to the deductible. Attachments City of Eden Prairie Cafeteria Plan Master Plan Document City of Eden Prairie Cafeteria Plan MASTER PLAN DOCUMENT Effective June 1, 1989 Amended and Restated Effective June 1, 2007 TABLE OF CONTENTS PAGE Article 1. The Plan 1 Section 1.1 Establishment 1 Section 1.2 Purpose 1 Article 2. Definitions 2 Section 2.1 Definitions 2 Section 2.2 Gender and Number 13 Article 3. Eligibility and Participation Conditions 14 Section 3.1 Participation Conditions 14 Section 3.2 Application to Participate 15 Section 3.3 Commencement of Participation 15 Section 3.4 Continuation Coverage 16 Section 3.5 Family or Medical Leaves 16 Section 3.6 Qualified Medical Child Support Orders 17 Section 3.7 Rights Upon Reemployment After Military Leave of Absence 19 Article 4. Plan Contributions and Benefit Costs 20 Section 4.1 Benefit Costs 20 Section 4.2 Pay Conversion Contributions 20 Section 4.3 Employer Contributions 20 Section 4.4 Benefit Selection 21 Section 4.5 Revocation or Changes in Benefit Elections 22 Section 4.6 Termination of Employment 23 Section 4.7 Cessation of Required Contributions 23 Section 4.8 Adjustments to Prevent Discrimination 24 Section 4.9 Available Benefits 24 Article 5. Plan Benefits 25 Section 5.1 Available Benefits 25 Section 5.2 Benefits 25 5.2.1 Health Coverage 25 5.2.2 Medical Reimbursement 26 5.2.3 Dependent Care Reimbursement 33 5.2.6 Dental Coverage 36 5.2.4 Life Insurance 36 Section 5.3 Taxable Cash Compensation 36 Article 6. Claims Procedure 37 Section 6.1 Claim for Benefits 37 Section 6.2 Claims Procedure 37 i City of Eden Prairie MPD Article 7. Administration and Finances 42 Section 7.1 Administration 42 Section 7.2 Delegation 42 Section 7.3 Reports and Records 43 Section 7.4 Actions of the City 43 Section 7.5 Finances 43 Section 7.6 Indemnification 43 Article 8. Amendments and Termination 44 Section 8.1 Amendments 44 Section 8.2 Benefits Provided through Third Parties 44 Section 8.3 Termination 44 Article 9. Miscellaneous 45 Section 9.1 No Guaranty of Employment 45 Section 9.2 Limitation on Liability 45 Section 9.3 Non-Alienation 45 Section 9.4 Applicable Law 45 Section 9.5 Benefits Provided Through Third Parties 46 ii City of Eden Prairie MPD City of Eden Prairie Cafeteria Plan Effective June 1, 1989 Amended and Restated Effective June 1, 2007 Article 1. The Plan Section 1.1 Establishment. City of Eden Prairie (hereinafter the "City"), hereby amends and restates, effective June 1, 2007, the City of Eden Prairie Cafeteria Benefits Plan (the "Plan"), which is a plan of flexible compensation for the exclusive benefit of Eligible Employees of the City. Section 1.2 Purpose. The purpose of the Plan is to increase the social insurance protection of Eligible Employees by making available to those employees different combinations of health care benefits, dental care benefits, life insurance benefits, dependent care benefits and direct compensation. The Plan is intended to comply with the provisions of Sections 79 (group term life), 105 (accident and health plans), 125 (cafeteria plans) and 129 (dependent care plans) of the Internal Revenue Code of 1986, as amended. 1 City of Eden Prairie MPD Article 2. Definitions Section 2.1 Definitions. Whenever used in the Plan, the following words and phrases shall have the meanings set forth below unless the context plainly requires a different meaning, and when the defined meaning is intended, the term is capitalized: (a) "Code" means the Internal Revenue Code of 1986, as amended, and any successor tax code. References to a Code section shall be to that section as it now exists and to any successor provision. (b) "City"means City of Eden Prairie (c) "Compensation" of a Participant means the total base salary or wages paid to an employee including vacation pay, sick pay, and holiday pay. (d) "Dependent" means an individual who qualifies as a Dependent under the terms of Section 152 of the Code without regard to subsections (b)(1) and(b)(2) or(d)(1)(B). (e) "Effective Date" means the effective date of this amendment and restatement, which is June 1, 2007. (f) "Eligible Employee" means an employee who is employed in the United States, and who is classified as either regular full-time or regular part- time. 2 City of Eden Prairie MPD (g) "Employment Related Dependent Care Expense" means an "employment-related expense," as defined in Section 21(b) of the Code. As of the Effective Date of the Plan, this means an amount paid for expenses of a Participant for household services or for the care of a Qualifying Individual, to the extent that such expenses are incurred to enable the Participant to be gainfully employed, within the meaning of Section 21(b)(2) of the Code, for any period for which there are one (1) or more Qualifying Individuals with respect to such Participant; provided, however, that (i) if such amounts are paid for expenses incurred outside the Participant's household, they shall constitute Employment Related Dependent Care Expenses only if incurred for a Qualifying Individual who is a Dependent under the age of thirteen (13) for whom the Participant is entitled to an exemption under Section 151(c) of the Code or for a Qualifying Individual who regularly spends at least eight (8) hours per day in the Participant's household; (ii) if the expense is incurred outside the Participant's home at a facility that provides care for more than six (6) individuals who do not regularly reside at the facility, the facility must comply with all applicable state and local laws and regulations, including licensing requirements, if any; and (iii) Employment Related Dependent Care Expenses of a Participant shall not include amounts paid or incurred for services provided by (A) a child of such Participant who is under the age of nineteen (19) or (B) an individual who is a Dependent of that Participant or the Participant's spouse. 3 City of Eden Prairie MPD (h) "Medical Reimbursement Charge" means the cost to a Participant for coverage under the medical reimbursement plan described in paragraph 5.2.2 hereof. (i) "Medical Care" means the diagnosis, cure, mitigation, treatment, or prevention of sickness, injury, or physical or mental defect. Expenses for Medical Care shall consist of expenses for medical care as defined in Sections 213(d)(1)(A) and (B) of the Code, and shall include, but not be limited to, payments for the purpose of affecting any structure or function of the body, for any hospital or nursing charges, optometrical, ophthalmological, or auditory care, dental care, psychiatric care, prescription drugs, insulin, eyeglasses, hearing aid appliances, and similar prosthetic devices, and medical related transportation expense; provided, however, that Medical Care shall not include any cosmetic procedure that is not medically necessary. (j) "Participant" means an Eligible Employee of the City who has satisfied the participation conditions of Article 3. A person who becomes a Participant shall remain a Participant until the eligibility requirements are no longer met. Loss of eligibility shall not have an impact on Participant's ability to receive all benefits due the Participant under the provisions of the Plan while satisfying eligibility requirements. 4 City of Eden Prairie MPD (k) "Payment and Health Care Operations" Payment means activities undertaken by the plan sponsor to obtain premiums or determine or fulfill its responsibility for coverage and provisions of plan benefits that relate to an individual to whom health care is provided. Payment activities include, but are not limited to, the following: i. Eligibility determinations, coverage and cost determinations including co-pays,plan maximums, and sharing of premium amounts; ii. Coordination of benefits determinations; iii. Adjudication of health benefits claims including appeals and other payment disputes; iv. Establishing employee contributions; v. Subrogation of health benefit claims; vi. Billing and collection activities related to health care data processing; vii. Obtaining payment under a contract for reinsurance including stop- loss and excess of loss insurance; viii. Claims management and related health care data processing including auditing payments, investigating and resolving payment disputes, and responding to Participant inquires regarding payment; ix. Medical necessity reviews or reviews of appropriateness of care or justification of charges; x. Utilization review, including precertification, preauthorization, concurrent review, and retrospective review; 5 City of Eden Prairie MPD xi. Disclosure to consumer reporting agencies related to the collection of premiums or reimbursement. The following protected health information (PHI) may be disclosed for payment purposes; date of birth, Social Security Number (except where prohibited by state law), payment history, account number and name, and address of the health care provider or health plan; xii. Reimbursement to the plan. Health care operations include,but are not limited to the following: i. Quality assessment; ii. Population-based activities relating to improving health care or reducing health care costs, protocol development, case management and care coordination, disease management, contacting health care providers and patients with information about treatment alternatives and related functions; iii. Rating provider and plan performance, including accreditation, certification, licensing or credentialing activities; iv. Underwriting, premium rating and other activities related to the creations, renewal or replacement of a contract of health insurance or health benefits, and ceding, securing or placing a contract for reinsurance of risk relating to health care claims including stop-loss insurance and excess of loss insurance; v. Conducting or arranging for medical review, legal services, and auditing functions, including fraud and abuse detection and compliance programs; 6 City of Eden Prairie MPD vi. Business planning and development, such as conducting cost- management and planning-related analyses related to management and operating the plan, including formulary development and administration, development or improvement of payment or coverage policies; vii. Business management and general administrative activities of the plan, including, but not limited to: a. Management activities relating to the implementation of and compliance with HIPAA privacy rules and Administrative Simplification requirements, or b. Customer service, including the provision of data analysis for policyholders, plan sponsors, or other customers; viii. Resolution of internal grievances; and due diligence in connection with the sale or transfer of assets to a potential successor in interest, if the potential successor in interest is a "covered entity" subject to the HIPAA privacy rules or, following completion of the sale or transfer, will become a covered entity subject to the HIPAA privacy rules. (1) "Period of Coverage," with respect to any Plan Year, means the Plan Year; provided that, (i) for any Eligible Employee who becomes a Participant after the start of a Plan Year, the Period of Coverage shall mean the period commencing on the effective date of the Eligible Employee's participation, (ii) the Period of Coverage for any Participant shall end upon termination of employment or the Participant ceasing to be an Eligible Employee, except (A) with respect to dependent care reimbursement coverage under paragraph 5.2.3 or 7 City of Eden Prairie MPD (B), in the case of medical reimbursement coverage under paragraph 5.2.2, if the Employee continues coverage in a manner consistent with this Plan, and (iii) with respect to medical reimbursement coverage under paragraph 5.2.2, the Period of Coverage shall not include any portion of the Plan Year for which the Participant does not pay the applicable Medical Reimbursement Charge. (m) "Plan" means the "City of Eden Prairie Cafeteria Benefits Plan" as set forth herein and as amended or restated from time to time. (n) "Plan Year" means the twelve-month period ending May 31 s`; provided that the first Plan Year shall be the period commencing June 1, 2007 and ending May 31st, 2008. (o) "Qualifying Individual"means a"qualifying individual" as defined in Section 21(b) of the Code, which includes, on the Effective Date of this Plan, (i) a Dependent of a Participant who is under the age of thirteen (13), with respect to whom the Participant is entitled to an exemption under Section 151(c) of the Code, and (ii) a Participant's Dependent or spouse who is physically or mentally incapable of caring for himself or herself. (p) "Status Change" includes the events listed as well as other events allowed by law and with respect to a Participant an event that allows a Participant to make changes to his or her elections for legitimate changes in status meaning on account of, and corresponding with, a change in status that affects eligibility for coverage. 8 City of Eden Prairie MPD For the Health Plan these events are: Special enrollments as defined by Code Section 9801(f) including a gain of a Dependent through marriage, birth or adoption, or loss of eligibility for other coverage; A change in legal marital status due to marriage, divorce, death of a spouse, legal separation or annulment; A change in the number of Dependents because of birth, adoption, placement for adoption, or death; A change in the employment status of the Participant or the Participant's Dependent(s) such as termination or commencement of employment, strike or lockout, commencement of, or return from, an unpaid leave of absence, or a change in work site; Events that cause a Dependent to satisfy or cease to satisfy eligibility requirements of an employer plan; A change in residence of a Participant or the Participant's Dependent(s) that affects eligibility under the plan or benefits; A significant change in the health coverage or the cost of health coverage, of the Participant or the Participant's spouse that is beyond the Participant's control or the Participant's spouse's control and is related to the employment of the Participant's spouse, or a prospective election change that is on account of and corresponds with a change made under another employer plan provided that the other plan permits Participants to make an election change; A judgment, decree, or order ("order") resulting from a divorce, legal separation, annulment, or change in legal custody (including a qualified medical child support order) which requires accident or health coverage for a Participant's child (including a qualified medical child support order defined in ERISA Section 609); Enrollment or loss of eligibility for Medicare or Medicaid benefits; Loss of eligibility for state health care programs; A prospective election change that is on account of and corresponds with a change made under another employer plan provided that the other plan permits Participants to make an election for a 9 City of Eden Prairie MPD period of coverage that is different from the period of coverage under the other cafeteria plan or qualified benefits plan; or commencement or return from FMLA leave. For the Dental and Vision Plans these events are: A change in the Participant's legal marital status due to marriage, divorce, death of a spouse, legal separation or annulment; A change in the number of the Participant's Dependents because of birth, adoption, placement for adoption, or death; A change in the employment status of the Participant or the Participant's spouse or Dependent such as termination or commencement of employment, strike or lockout, commencement of, or return from, an unpaid leave of absence, or a change in work site; A change in employment status that affects eligibility under an employer plan; Events that cause a Dependent to satisfy or cease to satisfy eligibility requirements of an employer plan; A change in residence of the Participant or the Participant's Dependent(s) that affects eligibility under the plan or benefits; A significant change in the health coverage or the cost of health coverage, of a Participant or the Participant's spouse that is beyond the Participant's control or the Participant's spouse's control and is related to the employment of the Participant's spouse, or a prospective election change that is on account of and corresponds with a change made under another employer plan provided that the other plan permits Participants to make an election change; A judgment, decree, or order ("order") resulting from a divorce, legal separation, annulment, or change in legal custody (including a qualified medical child support order) which requires dental or vision coverage for a Participant's child (including a qualified medical child support order defined in ERISA Section 609); A prospective election change that is on account of and corresponds with a change made 10 City of Eden Prairie MPD under another employer plan provided that the other plan permits Participants to make an election for a period of coverage that is different from the period of coverage under the other cafeteria plan or qualified benefits plan; or commencement or return from FMLA leave. For the Medical Expense Reimbursement Plan these events are: A change in a Participant's legal marital status due to marriage, divorce, death of a spouse, legal separation or annulment; A change in the number of the Participant's Dependents because of birth, adoption, placement for adoption, or death; A change in the employment status of a Participant or the Participant's spouse or Dependent(s) such as termination or commencement of employment, strike or lockout, commencement of, or return from, an unpaid leave of absence, or a change in work site. If the Participant, the Participant's spouse or the Participants Dependent has a change in employment status that affects eligibility under an employer plan; Events that cause a Dependent to satisfy or cease to satisfy eligibility requirements of an employer plan; A judgment, decree, or order("order")resulting from a divorce, legal separation, annulment, or change in legal custody (including a qualified medical child support order)which requires accident or health coverage for a Participant's child(including a qualified medical child support order defined in ERISA Section 609); or commencement or return from FMLA leave. A Participant is not permitted to change an election to the Medical Expense Reimbursement Plan as a result of a cost or coverage change to a benefit plan. 11 City of Eden Prairie MPD For the Dependent Care Plan these events are: A change in a Participant's legal marital status due to marriage, divorce, death of a spouse, legal separation or annulment; A change in the number of the Participant's Dependents because of birth, adoption, placement for adoption, or death; A change in the employment status of a Participant or the Participant's spouse or Dependent(s) such as termination or commencement of employment, strike or lockout, commencement of, or return from, an unpaid leave of absence, or a change in work site. If the Participant, the Participant's spouse or the Participant's Dependent has a change in employment status that affects eligibility under an employer plan; Events that cause a Dependent to satisfy or cease to satisfy eligibility requirements of an employer plan; A significant change in the cost of Dependent care except when the change is made by a dependent care provider that is a relative of the Participant; A change in the dependent care provider; A prospective election change that is on account of and corresponds with a change made under another employer plan provided that the other plan permits Participants to make an election for a period of coverage that is different from the period of coverage under the other cafeteria plan or qualified benefits plan; or commencement or return from FMLA leave. If the cost of a benefit purchased by you with Premium Conversion increases (or decreases) during the plan year and you are required to make a corresponding change to your election, the City may, on a reasonable and consistent basis, automatically make a prospective increase (or decrease) in your elections. 12 City of Eden Prairie MPD The City may add to the list of changes in circumstances that constitute Status Changes, consistent with the law relating to such Status Changes. Section 2.2 Gender and Number. Pronoun references in the Plan shall be deemed to be of any gender relevant to the context, and words used in the singular may also include the plural. 13 City of Eden Prairie MPD Article 3. Eligibility and Participation Conditions Section 3.1 Participation Conditions. As a condition to participation and receipt of benefits under this Plan, an Eligible Employee agrees to: (a) To comply with the provisions in 3.2 (a); (b) Furnish to the City the application to participate provided for in Section 3.2 (b); (c) Designate a portion of his/her Compensation as Pay Conversion Contributions in accordance with the provisions of Section 4.2; (d) Observe all rules and regulations implementing this Plan; (e) Consent to inquiries by the City with respect to any physician, hospital, or other provider of Medical Care or other services involved in a claim under this Plan; and (f) Submit to the City, or such other agent as the City may designate, all reports, bills, and other information which the City may reasonably require. 14 City of Eden Prairie MPD Section 3.2 Application to Participate. (a) Eligible Employees that have elected to participate in the City's health and/or dental plan(s) shall be deemed to have elected to participate in the premium portion of this Plan and to have the employee portion of the premiums for coverage under the City's health, life and/or dental plan(s) paid for on a pre-tax basis under this Plan, unless written notification, on City forms, is supplied to the City, stating that the employee does not wish to participate in the premium portion of this Plan and that the employee portion of the premium for coverage under the City's health, life and/or dental plan(s) should be paid for on an after-tax basis. (b) As a condition of participation, in the Medical Reimbursement and/or Dependent Care portions of this Plan, each Eligible Employee shall execute and deliver to the City within 30 days of becoming Eligible for the Plan, a written and signed application by which the Eligible Employee applies to participate in the Medical Reimbursement and/or Dependent Care portions of this Plan, designates the required amount of Compensation for the Plan Year in question as Pay Conversion Contributions as described in Section 4.2, and supplies any other pertinent information that the City reasonably requires. Section 3.3 Commencement of Participation. An employee may become a Participant on the first day they are eligible to participate in the City's health, life and/or dental plan(s), or on the first day of a subsequent Plan Year. 15 City of Eden Prairie MPD Section 3.4 Continuation Coverage. A Participant whose employment is terminated or who takes a leave of absence, including a Family or Medical Leave under Section 3.5 or a military leave as defined in Section 3.7 shall be entitled to continue coverage as provided in this Plan or as may otherwise be required by applicable law. Other persons shall be entitled to commence or continue coverage as required by applicable law. Section 3.5 Family or Medical Leaves. If the Family and Medical Leave Act of 1993 applies to the City and a Participant takes a Family or Medical Leave as those terms are defined under the Family and Medical Leave Act of 1993, the Participant may continue to participate in this Plan consistent with one of the following provisions: (a) The Participant shall agree to make all required contributions for the benefits he or she has selected under the Plan on an after-tax basis during the Family or Medical Leave at such times as the City may require pursuant to reasonable rules established by the City, or (b) Prior to the beginning of such leave, the Participant shall pay all contributions required for the benefits he or she has selected under the Plan for the duration of the leave, (i) on an after-tax basis or, (ii) if the Participant has Compensation from which such payment may be deducted, on a pre-tax basis but only through the end of the Plan Year. 16 City of Eden Prairie MPD Notwithstanding the foregoing, if the City continues to provide or maintain coverage under any benefit selected by a Participant during a Family or Medical Leave in circumstances where the Participant has elected to continue such coverage and has not made the required contributions during their Family or Medical Leave, the City shall have the right to recover the cost of such coverage from the Participant's Compensation upon return from Family or Medical Leave, or, if the Participant does not return, at the end of the Family or Medical Leave to the fullest extent authorized by the Family and Medical Leave Act of 1993 and pursuant to any method authorized by the Family and Medical Leave Act of 1993. Section 3.6 Qualified Medical Child Support Orders. (a) Procedures. The City shall establish reasonable procedures to determine the qualified status of Medical Child Support Orders ("Orders"), and to administer the provision of benefits under such Orders. Such procedures shall be in writing and shall be deemed a part hereof. When the City receives an Order, it shall promptly notify the Participant, and each Alternate Recipient of the receipt of such Order and the Plan's procedures for determining the qualified status of such Orders. Such notice shall be in writing and shall be mailed to each person entitled to notice at the address included in the Order. An Alternate Recipient may designate a representative for receipt of copies of any and all notices either in the Order or by a writing addressed to the City. Within a reasonable period after receipt of such Order, the City shall determine whether such Order is a Qualified Medical Child Support Order and notify the Participant and each Alternate Recipient(or his or her designee) of such determination. 17 City of Eden Prairie MPD (b) Definitions. For purposes of this section, the following terms have the following meanings: (i) "Medical Child Support Order" means any judgment, decree or order (including approval of a settlement agreement) issued by a court of competent jurisdiction which (i)provides for child support with respect to a child of a Participant under the Plan or provides for health benefits coverage to such a child, is made pursuant to a State domestic relations law (including a community property law), and relates (or arguably may relate) to benefits under the Plan or(ii) enforces a law relating to medical child support described in Section 1908 of the Social Security Act with respect to the Plan. (ii) "Alternate Recipient" means any child of a Participant who is recognized under a Medical Child Support Order as having a right to enrollment or benefits under the Plan with respect to such Participant. (iii) "Qualified Medical Child Support Order"means a medical child support order which (i) creates or recognizes the existence of an Alternate Recipient's right to, or assigns to an Alternate Recipient the right to receive benefits for which a Participant or beneficiary is eligible under the Plan, (ii) clearly specifies (A) the name and the last known mailing address (if any) of the Participant and the name and address of each Alternate 18 City of Eden Prairie MPD Recipient covered by the Order, (B) a reasonable description of the type of coverage to be provided by the Plan and each such Alternate Recipient, or the manner in which such type of coverage is to be determined, (C) the period to which such period applies, and (D) each plan to which such order applies, and (iii) does not require the Plan to provide any type or form of benefit, or any option, not otherwise provided under the Plan, except to the extent necessary to meet the requirements of the law relating to medical child support described in Section 1908 of the Social Security Act. Section 3.7 Rights Upon Reemployment After Military Leave of Absence. A Participant whose coverage under a "Health Plan" (as that term is defined under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA") offered through this Plan was terminated during a military leave of absence (as defined under USERRA), shall be entitled to reinstate coverage under such Health Plan consistent with the USERRA. 19 City of Eden Prairie MPD Article 4. Plan Contributions and Benefit Costs Section 4.1 Benefit Costs. The cost of any benefit elected by a Participant shall be paid for through the Participant's available employer contributions, if any, or Pay Conversion Contributions as described below. Section 4.2 Pay Conversion Contributions. Each Participant shall designate a portion of the Participant's Compensation as Pay Conversion Contributions to cover the employee cost of all benefits that are elected by the Participant under this Plan, other than those that may be paid for by any employer contributions available to such Participant under Section 4.3. Except as otherwise provided by the City, Pay Conversion Contributions shall reduce the Participant's Compensation ratably on each day during the Plan Year following the effective date of the Participant's participation. The election to participate in the City sponsored health, life and/or dental plan(s) shall authorize the appropriate payroll deductions. Section 4.3 Employer Contributions. In its discretion, the City may make contributions to the Plan on behalf of the Participants whom they employ. Any such contributions shall be made at an annual rate determined by the City. A pro rata portion of such contributions shall be contributed on such date or dates during the Plan Year as the City determines in its sole discretion. Employer contributions shall be made only on behalf of Participants who are currently employed by the City on the date that the contribution is made. A Participant's employer contributions shall be automatically applied to pay the Participant cost of any benefits elected by the Participant. If no benefits are elected, employer contributions will be used to pay 20 City of Eden Prairie MPD the Participant taxable cash compensation benefits under Section 5.3. Participants shall be informed prior to the commencement of each Plan Year of the amount, if any, of such employer contributions to be made during the Plan Year. Section 4.4 Benefit Selection. A Participant's initial benefit election shall be made as part of the application to participate. Thereafter, subject to such reasonable restrictions, if any, as the City may impose on a uniform basis, a Participant may change his or her election for a subsequent Plan Year by providing written notice to the City, on forms prescribed by the City and at such time as is prescribed by the City, to elect or waive participation in the City sponsored health, life and/or dental plan(s). The City or any provider of benefits hereunder may impose restrictions on the election of benefits under the Plan. The City, in its discretion, may utilize a "negative election" form for certain plan contributions. A negative election form is a form that assumes that the Participant desires to make certain contributions on a pre-tax basis. Negative elections may be used only for health, life and dental plan premiums. Negative elections shall not be used for medical expense reimbursement under Section 5.2.2 or dependent care reimbursement under Section 5.2.3. In using negative election forms, the City shall require the Participant to sign the form in order to authorize after-tax payroll deductions. 21 City of Eden Prairie MPD Section 4.5 Revocation or Changes in Benefit Elections. A Participant's benefit election for any Plan Year shall be irrevocable during the Plan Year, except that (a) the City may limit or reduce a Participant's contributions allocable to certain benefits in accordance with Section 4.8, and (b), if there is a Status Change, a Participant shall be entitled to change the Participant's election of benefits in a manner that is consistent with the Status Change by providing written notice thereof to the City, on a form prescribed by the City, either prior to or after the Status Change, but not later than thirty (30) days after the occurrence of the Status Change; provided, however, that a Participant may not make any change that would reduce the Participant's level of medical reimbursement coverage under paragraph 5.2.2 to an amount that would be less than the amount of benefits claimed under such coverage as of the date the change would become effective. Any such change shall be effective for the first pay period for which the City can process the change or, if later, the actual date the Status Change occurs. Notwithstanding the foregoing, any Participant whose benefit election has been revoked for such Plan Year pursuant to Section 4.6 below shall be entitled to make a new benefit election for such Plan Year, consistent with the law relating to such re-instatement or re-enrollment, and a Participant who has elected to pay for a benefit solely through after-tax payroll deductions rather than through Pay Conversion Contributions, if permitted by the City, may make election changes with respect to such benefit in accordance with rules established by the City. If there is a change in cost of coverage for a benefit provided by an independent third party, the City may, on a reasonable and consistent basis, automatically adjust the Participant's election and automatically increase or decrease, as the case may be, all affected Participant's Pay Conversion Contributions. To the extent provided by the City on a uniform basis, if coverage under a health, life and/or dental plan provided by an independent third party is significantly curtailed or ceases during a Period of 22 City of Eden Prairie MPD Coverage, affected Participants may revoke their elections under such health, life and/or dental plan, and, in lieu thereof, elect to receive on a prospective basis coverage under another health, life and/or dental plan with similar coverage. Section 4.6 Termination of Employment. In the event of the termination of a Participant's employment, the Participant's Pay Conversion Contributions and employer contributions, if any, will cease at such time as the Participant ceases to receive Compensation for employment services. To the extent permitted under Section 3.4 or Section 3.5 such a Participant may elect to continue to make contributions for benefits under this Plan other than through Pay Conversion Contributions. Except as provided in Section 3.5 or Section 3.7, if the Participant should return to service with the City during the Plan Year, the Participant may make a new benefit election for the remaining portion of the Plan Year, or under certain circumstances may be permitted by the City to be re-instated to their previous election. All re-instatements or re-enrollments must be consistent to the related law. Section 4.7 Cessation of Required Contributions. A Participant's election to receive a benefit under this Plan shall be automatically revoked effective the first day of any period for which such Participant fails to make a contribution required by the City for such benefit for such period. 23 City of Eden Prairie MPD Section 4.8 Adjustments to Prevent Discrimination. If the City believes that the Plan or any of its benefits might otherwise be deemed discriminatory under any provision of the Code, it may, in its absolute discretion, limit or reduce the amount of employer contributions, if any, and Pay Conversion Contributions of such Participants allocable to such benefits described herein in such amounts as are necessary, in its good faith judgment, to avoid such discrimination; provided that any such limitation imposed by the City shall apply on a uniform basis among the affected Participants. Section 4.9 Available Benefits. The City shall maintain and make available to Participants accurate lists and descriptions of the respective types, amounts, and costs of benefits available through the Plan. Each Participant shall be notified in writing if there is (a) a change in the cost of a benefit or(b) a change in the type, nature, or amount of any benefit. 24 City of Eden Prairie MPD Article 5. Plan Benefits Section 5.1 Available Benefits. Except as otherwise provided in this Article, and subject to any open enrollment or other provisions of contracts with third party benefit providers, a Participant may use available employer contributions, if any, and Pay Conversion Contributions to pay for the benefits described in Section 5.2 that the Participant has elected to receive. Benefits shall be provided under such insurance policies, plans, programs or other arrangements as obtained or established by the City. All benefits are subject to the terms and conditions of the plans, policies, programs or other arrangements obtained or established by the City to fund or provide those benefits. Section 5.2 Benefits. 5.2.1 Health Coverage. Payment of the employee cost of single, single plus one or family coverage under the City of Eden Prairie Health Plan and under such policies or programs as the City elects to make available to the Participant. 25 City of Eden Prairie MPD 5.2.2 Medical Reimbursement. A Participant may elect to receive medical reimbursement benefits under the terms and conditions of this paragraph 5.2.2. (a) Medical Reimbursement Coverage. Participants may elect to receive medical reimbursement coverage of up to a maximum coverage of Five Thousand Dollars ($5,000) per Plan Year. (b) Medical Reimbursement Charge. Prior to the commencement of each Plan Year, the City shall determine and communicate to Participants the annual rate of the Medical Reimbursement Charge for each dollar of medical reimbursement coverage for the forthcoming Plan Year. A Participant's Medical Reimbursement Charge shall be payable from the Participant's available employer contributions, if any, and Pay Conversion Contributions on a monthly or other periodic basis during the Plan Year as determined by the City and communicated to Participants. (c) Medical Reimbursement Benefits. Subject to limitations contained in other provisions of this Plan, a Participant who incurs expenses for Medical Care attributable to the Participant or the Participant's spouse or Dependents during the Participant's Period of Coverage for a Plan Year shall be entitled to receive from the City full reimbursement for the entire amount of such expenses to the extent of the maximum amount of 26 City of Eden Prairie MPD coverage elected by the Participant for that Plan Year. The City shall pay all such expenses to the Participant upon the presentation of documentation of such expenses in a form prescribed by the City, which shall include satisfactory third party evidence of the amount of the expense and the date(s) incurred. In addition, upon presentation of a claim, a Participant shall expressly represent that the item for which a claim is made is not subject to reimbursement under any policy described in paragraph 5.2.2(d) or from any other source. In its discretion, the City may pay any of such expenses directly, in which event it shall be relieved of all further responsibility with respect to that particular expense. These expenses shall be paid periodically during the Plan Year upon receipt of a claim complying with Plan requirements and no later than July 31st following the close of a Plan Year upon receipt of a claim(no minimum) complying with Plan requirements. 27 City of Eden Prairie MPD (d) Limitations on Medical Reimbursement Benefits. Anything in the Plan to the contrary notwithstanding, no Participant shall be entitled to benefits under this paragraph 5.2.2: (i) In the event and to the extent that the reimbursement or payment is covered under any insurance policy or policies, whether paid for by the City or the Participant, or under any other health and accident plan by whomever maintained. If there is such a policy or plan in effect providing for reimbursement or payment, in whole or in part, then to the extent of the coverage under that policy or plan, the Plan shall be relieved of any liability; or (ii) To the extent that the expense has been submitted for reimbursement from the Participant's Dependent Care Reimbursement Account. (e) Forfeiture of Unused Benefits. If, following the final payment of reimbursement benefits for eligible expenses incurred during the Period of Coverage for any Plan Year, any amount remains in a Participant's Medical Reimbursement Account for that Plan Year, the Participant shall forfeit such amount to the City, and shall have no further claim to that amount. 28 City of Eden Prairie MPD (f) Separate Written Plan. For purposes of the Code, paragraph 5.2.2 shall constitute a separate written plan providing for the reimbursement of Medical Care expenses. To the extent necessary, other provisions of the Plan are incorporated by reference in paragraph 5.2.2. (g) HIPAA Privacy and Security. Definitions of capitalized terms in this paragraph are taken from the statute and regulations of the Health Insurance Portability and Accountability Act of 1996 found in 45 CFR §164.501 et al. The HIPAA Privacy Rules and Security Standards stated in this section will become effective for the Plan when required under the applicable statutes and regulations. Additionally, definitions of capitalized terms in this paragraph are taken from the statute and regulations of the Health Insurance Portability and Accountability Act of 1996, cited above. The plan will use and disclose "protected health information" (PHI) and "electronic protected health information" (EPHI) for purposes related to health care treatment, payment for health care services, and health care operations. The plan will use or disclose PHI and EPHI for any other purpose only upon receipt of an authorization from the individual. The Plan will not disclose "protected health information" (PHI) or "electronic protected health information" (EPHI) to the plan sponsor until the Plan has received certification from the plan sponsor that the plan 29 City of Eden Prairie MPD documents have been amended to incorporate the following provisions: As plan sponsor the City agrees to: (i) not use or further disclose "protected health information" (PHI) or"electronic protected health information" (EPHI) other than as permitted or required by the plan document or as required by law; (ii) ensure that any agents, including a subcontractor, to whom it provides PHI or EPHI agree to the same restrictions and conditions that apply to the plan sponsor with respect to PHI or EPHI and will implement reasonable and appropriate security measures to protect the information; (iii) not use or disclose the PHI or EPHI for employment-related actions and decisions or in connection with any other benefit or employee benefit plan of the City; (iv) be vigilant of any use or disclosure of PHI or EPHI and report to the plan any use or disclosure that is inconsistent with the permitted or required uses or disclosures and any security incident of which it becomes aware; (v) make available PHI or EPHI to individuals; (vi) provide individuals with the opportunity to amend PHI or EPHI; 30 City of Eden Prairie MPD (vii) provide individuals with an accounting of the disclosure of their PHI or EPHI; (viii) make its internal practices, books, and records relating to the use and disclosure of PHI or EPHI available to the Secretary of the Department of Health and Human Services; for compliance purposes; (ix) return or destroy all PHI or EPHI, if feasible, if not feasible then limit further uses and disclosures to those purposes that make the return or destruction infeasible; (x) ensure that adequate separation exists between employees who are authorized to use PHI or EPHI and those who are not; (xi) ensure that adequate separation is supported by reasonable and appropriate security measures to protect the information; (xii) describe those employees or classes of employees to be given access to PHI or EPHI; (xiii) restrict the access to and use by these employees; (xiv) provide an effective mechanism for resolving any issues of noncompliance by persons who have access to PHI or EPHI. 31 City of Eden Prairie MPD (h) In accordance with the HIPAA Privacy rules and Security Standards, the following employees, or class of employees, will have access to PHI or EPHI: employees with medical flexible benefit oversight responsibility. (i) The individuals described in (h) above will have access to use and disclosure of PHI or EPHI for plan administration functions that are performed by the Plan Sponsor for the Plan. (j) The plan sponsor will provide a mechanism for resolving noncompliance issues for any individual described in (h) above who does not comply with the plan document, or improperly uses or discloses PHI or EPHI, including disciplinary procedures. (k) With respect to EPHI, the plan sponsor will implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of the EPHI that it creates, receives, maintains, or transmits on behalf of the plan. 32 City of Eden Prairie MPD 5.2.3 Dependent Care Reimbursement. A Participant may elect to receive dependent care reimbursement for eligible dependent care expenses under the terms and conditions of this paragraph 5.2.3. (a) Dependent Care Reimbursement Accounts. A Dependent Care Reimbursement Account shall be established for each electing Participant for each Plan Year. Each Dependent Care Reimbursement Account shall initially contain Zero Dollars ($0.00). (b) Increases in Dependent Care Reimbursement Accounts. A Participant's Dependent Care Reimbursement Account shall be increased each relevant pay period by such whole dollar amount of the Participant's available employer contributions, if any, and Pay Conversion Contributions as the Participant has elected to apply toward the Participant's Dependent Care Reimbursement Account; provided that the maximum annual contribution to a Participant's Dependent Care Reimbursement Account attributable to a Participant's employer contributions, if any, and Pay Conversion Contributions shall be a maximum of Five Thousand Dollars ($5,000)per Plan Year. 33 City of Eden Prairie MPD (c) Decreases in Dependent Care Reimbursement Account. A Participant's Dependent Care Reimbursement Account shall be reduced by the amount of any benefits paid to or on behalf of a Participant pursuant to paragraphs 5.2.3(d) or 5.2.3(e). (d) Dependent Care Benefits. Subject to limitations contained in other provisions of this Plan, and to the extent of the amount contained in the Participant's Dependent Care Reimbursement Account, a Participant who incurs Employment Related Dependent Care Expenses shall be entitled to receive from the City full reimbursement for the entire amount of these expenses incurred during the Period of Coverage for a Plan Year to the extent of the amount contained in the Participant's Dependent Care Reimbursement Account for that Plan Year; provided that no reimbursement shall be paid pursuant to this paragraph 5.2.3 to the extent that an expense has been submitted for reimbursement as a Medical Care expense under paragraph 5.2.2. The City shall pay all such expenses to the Participant upon the presentation to the City of documentation of these expenses in a form prescribed by the City. However, in its discretion, the City may pay any of these expenses directly, in which event it shall be relieved of all further responsibility with respect to that particular expense. These expenses shall be paid periodically during the Plan Year upon 34 City of Eden Prairie MPD receipt of a claim complying with Plan requirements and no later than July 31st following the close of the Plan Year upon receipt of a claim(no minimum) complying with Plan requirements. (e) Forfeiture of Unused Benefits. If, following the final payment of reimbursement benefits for eligible expenses incurred during the Period of Coverage for any Plan Year, any amount remains in a Participant's Dependent Care Reimbursement Account for that Plan Year, the Participant shall forfeit such amount to the City, and shall have no further claim to that amount. (f) Annual Statement of Benefits. On or before January 31 of each calendar year, the City shall furnish to each Participant who received benefits under paragraph 5.2.3 during the preceding calendar year, a statement of all such benefits paid to or on behalf of the Participant during the prior calendar year. (g) Separate Written Plan. For purposes of the Code, paragraph 5.2.3 shall constitute a separate written plan providing a program of dependent care assistance. To the extent necessary, other provisions of the Plan are deemed incorporated by reference in paragraph 5.2.3. 35 City of Eden Prairie MPD 5.2.4 Dental Coverage. Payment of the employee cost of single, single plus one or family coverage under the City of Eden Prairie Dental Plan and under such policies or programs as the City elects to make available to the Participant. 5.2.5 Life Insurance. Payment of the employee cost of coverage under City of Eden Prairie Life Insurance Plan for a benefit amount not to exceed Fifty Thousand Dollars ($50,000). Section 5.3 Taxable Cash Compensation. The Plan is a choice for the Participant between benefits and taxable compensation, therefore the amount of any Pay Conversion Contributions not used by a Participant for benefits, shall be paid to the Participant as taxable cash compensation at the time the contributions constituting such Pay Conversion Contributions would be paid without regard to this Plan. Elections to the medical and dependent care reimbursement portions of this Plan, Section 5.2, are considered the purchase of benefits. Any remaining balances after the end of the Plan Year in these accounts will be considered unused benefits and are subject to the provisions listed in 5.2.2 and 5.2.3. Taxable cash compensation under this Section 5.3 shall be deemed a benefit. 36 City of Eden Prairie MPD Article 6. Claims Procedure Section 6.1 Written Claim for Benefits. Benefit payments shall not be made under this Plan until the City or its agent has received a claim for benefits that satisfies all requirements of the separate benefit plan under which such benefit is claimed to be due. Section 6.2 Claims Procedure. The Plan shall establish and maintain reasonable procedures governing the filing of benefit claims, notification of benefit determinations, and appeal of adverse benefit determinations (hereinafter collectively referred to as claims procedures). If the claimant or the claimant's representative fail to follow the claims procedures set out by the Plan, the claimant will be notified of such failure as soon as possible, but not later than five (5) days following the failure. Notification may be oral, unless written notification is requested by the claimant or authorized representative. In the case of a post-service claim (i.e., the claimant has already received service), the Plan administrator will notify the claimant of the Plan's adverse benefit determination within a reasonable period of time, but not later than 30 days after receipt of the claim. This period may be extended one time by the Plan for up to 15 days, provided that the Plan administrator both determines that such an extension is necessary due to matters beyond the control of the Plan and notifies the claimant, prior to the expiration of the initial 30-day period, of the circumstances requiring the extension of time and the date by which the Plan expects to render a decision. If 37 City of Eden Prairie MPD such an extension is necessary due to the claimant's failure to submit the information necessary to decide the claim, the notice of extension shall specifically describe the required information, and the claimant will be afforded at least 45 days from receipt of the notice within which to provide the specified information. For purposes of this section, the time periods will begin at the time a claim is filed without regard to whether all the information necessary to make a benefit determination accompanies the filing. In the event that a period of time is extended as permitted under this section due to a claimant's failure to submit information necessary to decide a claim, the period for making the benefit determination shall be tolled from the date on which the notification of the extension is sent to the claimant until the date on which the claimant responds to the request for additional information. The notification shall set forth either upon the initial determination or upon review, in a manner calculated to be understood by the claimant— (i) The specific reason or reasons for the adverse determination; (ii) Reference to the specific Plan provisions on which the determination is based; (iii) A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; 38 City of Eden Prairie MPD (iv) A description of the Plan's review procedures and the time limits applicable to such procedures, including a statement of the claimant's right to bring a civil action under section 502(a) of the Act following an adverse benefit determination on review; (v) In the case of an adverse benefit determination, (A) If an internal rule, guideline, protocol, or other similar criterion was relied upon in making the adverse determination, either the specific rule, guideline, protocol, or other similar criterion; or a statement that such a rule, guideline, protocol, or other similar criterion was relied upon in making the adverse determination and that a copy of such rule, guideline, protocol, or other criterion will be provided free of charge to the claimant upon request; or (B) If the adverse benefit determination is based on a medical necessity or experimental treatment or similar exclusion or limit, either an explanation of the scientific or clinical judgment for the determination, applying the terms of the Plan to the claimant's medical circumstances, or a statement that such explanation will be provided free of charge upon request. (vi) In the case of an adverse benefit determination review, the following statement shall be included: "The claimant and the Plan may have other voluntary alternative dispute resolution options, such as mediation. One way to find out what may be available is to contact the local U.S. Department of Labor Office and your State insurance regulatory agency." 39 City of Eden Prairie MPD For a group medical claim, the claimant will have 180 days following receipt of a notification of an adverse benefit determination within which to appeal the determination. The appeal process requires the Plan to: (i) provide for a review that does not afford deference to the initial adverse benefit determination; (ii) provide that, in deciding an appeal of any adverse benefit determination that is based in whole or in part on a medical judgment, including determinations with regard to whether a particular treatment, drug, or other item is experimental, investigational, or not medically necessary or appropriate, the appropriate named fiduciary shall consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment; (iii) provide for the identification of medical or vocational experts whose advice was obtained on behalf of the Plan in connection with a claimant's adverse benefit determination, without regard to whether the advice was relied upon in making the benefit determination; (iv) provide that the health care professional engaged for purposes of a consultation under this section shall be an individual who is neither an individual who was consulted in connection with the adverse benefit determination that is the subject of the appeal, nor the subordinate of any such individual; and 40 City of Eden Prairie MPD The Plan administrator shall notify the claimant of the Plan's benefit determination on review. In the case of a post-service claim, the Plan administrator will notify the claimant of the Plan's benefit determination on review within a reasonable period of time, not later than 60 days after receipt by the Plan of the claimant's request for review of an adverse benefit determination. Nothing in this section shall be construed to supersede any provision of State law that regulates insurance, except to the extent that such law prevents the application of a requirement of this section. If the Plan fails to establish or follow claims procedures consistent with the requirements of this section, the claimant will be deemed to have exhausted the administrative remedies available under the Plan and shall be entitled to pursue any available remedies under law on the basis that the Plan has failed to provide a reasonable claims procedure that would yield a decision on the merits of the claim. 41 City of Eden Prairie MPD Article 7. Administration and Finances Section 7.1 Administration. The City shall be the administrator of the Plan, and, as such, has total and complete discretionary authority to determine conclusively for all parties all questions arising in the administration of the Plan. The City shall have all powers necessary to administer the Plan, including, without limitation,powers: (a) to interpret the provisions of the Plan; (b) to establish and revise the method of accounting for the Plan and to maintain the accounts; (c) to establish rules for the administration of the Plan and to prescribe any forms required to administer the Plan; and (d) to change plans, contracts or policies and/or insurers or other providers of benefits described in Sections 5.2 of the Plan. Section 7.2 Delegation. The City shall have the power, by resolution of its Counsel, to delegate specific duties and responsibilities. Such delegations may be to officers or other employees of the City or to other individuals or entities. Any delegation by the City, if specifically stated, may allow further delegations by the individual or entity to whom the delegation has been made. Any delegation may be rescinded by the City at any time. Each person or entity to whom a duty or responsibility has been delegated shall be responsible for the exercise of those duties or responsibilities and shall not be responsible for the acts or failure to act of any other individual or entity. 42 City of Eden Prairie MPD Section 7.3 Reports and Records. The City and those to whom the City has delegated duties and authority under the Plan shall keep records of all their proceedings and actions, and shall maintain all books of account, records, and other data necessary for the proper administration of the Plan and to comply with applicable laws. Section 7.4 Actions of the City. Subject to the claims procedures of Article 6, all determinations, interpretations, rules, and decisions of the City shall be conclusive and binding upon all persons having or claiming to have any interest or right under the Plan. Section 7.5 Finances. The costs of the Plan shall be borne as provided herein. For purposes of the Plan, Pay Conversion Contributions shall be deemed contributions by the City. Section 7.6 Indemnification. To the extent permitted by law, the City shall indemnify the members of the City's Counsel, and others to whom the City has delegated duties and authority pursuant to Section 7.2 who are either employees, officers, or directors of the City against any and all claims, losses, damages, expenses, and liabilities, arising from their responsibilities in connection with the Plan which are not covered by insurance (without recourse) paid for by the City, unless due to gross negligence or intentional misconduct. 43 City of Eden Prairie MPD Article 8. Amendments and Termination Section 8.1 Amendments. The City shall have the right at any time and from time to time, by resolution of its Counsel, or action of such other person(s) to whom such authority has been delegated by the Counsel pursuant to Section 7.2, to amend the Plan, in full or in part, the amendment to be effective at the time stated therein. Any such amendment shall be filed with the Plan documents. Section 8.2 Benefits Provided through Third Parties. In the case of any benefit provided pursuant to an insurance policy or other contract with a third party, the City may amend the Plan by changing insurers, policies, or contracts without changing the language of the Plan, provided that copies of the contracts or policies are filed with the Plan documents and the Participants are informed of the effects of any changes. Section 8.3 Termination. The City expects the Plan to be permanent, but necessarily must, and hereby does, reserve the right to terminate the Plan at any time. Any such termination shall be by resolution of the Counsel of the City or by action of such other person(s) to whom such action has been delegated by the Counsel pursuant to Section 7.2. Neither the City nor any of their respective officers, directors, or employees shall have any further financial obligations under the Plan from and after termination of the Plan except those that have accrued up to the date of termination and have not been satisfied. 44 City of Eden Prairie MPD Article 9. Miscellaneous Section 9.1 No Guaranty of Employment. The adoption and maintenance of the Plan shall not be deemed to be a contract of employment between the City and any employee. Nothing contained in the Plan shall give any employee the right to be retained in the employ of the City or to interfere with the right of the City to discharge any employee at any time, nor shall it give the City the right to require any employee to remain in its employ or to interfere with the employee's right to terminate employment at any time. Section 9.2 Limitation on Liability. The City does not guarantee benefits payable under any insurance or health maintenance organization policy or contract described in the Plan, and any benefits payable thereunder shall be the exclusive responsibility of the insurer or health maintenance organization that is obligated under the contract or policy. Section 9.3 Non-Alienation. No benefit payable at any time under the Plan shall be subject in any manner to alienation, sale, transfer, assignment, pledge, attachment, or encumbrance of any kind. Section 9.4 Applicable Law. The Plan and all rights under it shall be governed by and construed according to the laws of the State of Minnesota, except to the extent those laws are preempted by the laws of the United States of America. 45 City of Eden Prairie MPD Section 9.5 Benefits Provided Through Third Parties. In the case of any benefit provided through a third party, such as an insurance City, pursuant to a contract or policy with that third party, if there is any conflict or inconsistency between the description of benefits contained in the Plan and the contract or policy, the terms of the contract or policy shall control. City of Eden Prairie By: Title: BCG:City of Eden PrairieMPD.doc 46 City of Eden Prairie MPD CITY COUNCIL AGENDA DATE: June 5, 2007 SECTION: Consent Calendar DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: George Esbensen Fire Department Communication System Subscriber Agreement Requested Action: Move to: Approve the agreement between the City of Eden Prairie and Hennepin County to become a subscriber on the Regionwide Public Safety Radio Communications System and to become an interconnected dispatch facility on the Countywide 800 MHz Trunked Radio Subsystem. Synopsis: The agreements include use of the system, lease,maintenance and repair of subscriber radios, as well as administrative and operational support of the subscriber radio fleet Background Information: Approval of these agreements will allow Eden Prairie to more efficiently and dependably operate locally and throughout the county during incidents that require diverse as well as interoperable communications. Eden Prairie is one of the last communities in Hennepin County to move to this system. CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar June 5, 2007 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Police Department Safe & Sober Grant Agreement Execution VIII. G. Chief Rob Reynolds Requested Action Move to: Approve the resolution authorizing the execution of a grant agreement for the Safe & Sober Communities project. Synopsis The Police Department is requesting approval to enter into a grant agreement with the Minnesota Department of Public Safety, Office of Traffic Safety for a project entitled Safe & Sober Communities from October 1, 2007 through September 30, 2008. Background The Safe & Sober Communities grant provides funds for law enforcement agencies to provide stepped-up traffic enforcement and community outreach. Attachment Resolution CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2007- RESOLUTION AUTHORIZING EXECUTION OF AGREEMENT BE IT RESOLVED that the Eden Prairie Police Department enter into a grant agreement with the Minnesota Department of Public Safety, Office of Traffic Safety for the project entitled SAFE & SOBER COMMUNITIES during the period from October 1, 2007 through September 30, 2008. BE IT FURTHER RESOLVED that the Chief of Police of Eden Prairie is hereby authorized to execute such agreements and amendments as are necessary to implement the project on behalf of the Eden Prairie Police Department. BE IT FURTHER RESOLVED that the Chief of the Bloomington Police Department is hereby authorized to be the fiscal agent and administer this grant on behalf of the Eden Prairie Police Department. ADOPTED by the Eden Prairie City Council on June 5, 2007. Phil Young, Mayor ATTEST: Kathleen Porta, City Clerk Contract No. A060824 GOB .4iciesil s ,te ��r °� �� Hennepin County Sheriffs Office Communications Division 9300 Naper Street '.Z .4. i "41 '�nr�s°�, Golden Valley, MN 55427 Cl,,� Regionwide Public Safety Radio `IRbw.50` Communications System Communications System Subscriber Agreement Between Hennepin County and Authorized Users Regarding: Use of the Regionwide Public Safety Radio Communications System, Lease, Maintenance and Repair of Subscriber Radios, Administrative and Operational Support of the Subscriber Radio Fleet Contract No. A060824 THIS AGREEMENT made and entered into by and between the COUNTY OF HENNEPIN, a body politic and corporate, under the laws of the STATE OF MINNESOTA, hereinafter referred to as the "COUNTY," A-2303 Government Center, Minneapolis, Minnesota 55487, and the City of Eden Prairie, a Minnesota municipal corporation, 8080 Mitchell Road, Eden Prairie, Minnesota 55344, acting by and through its duly authorized officers, hereinafter referred to as the "USER". WITNESSETH: WHEREAS, the COUNTY operates a Local Subsystem as part of the Regionwide Public Safety Radio Communications System, hereinafter referred to as "System"; and WHEREAS, the COUNTY has provided for the capability of Cities, Agencies, Districts and Other Authorized Users within the County to have access to the System; and WHEREAS, the COUNTY bears primary responsibility for the health, security and integrity of the System and other communications systems; and WHEREAS, the USER has elected to participate as a subscriber with end user radios operating on the System. NOW, THEREFORE, in consideration of the mutual undertakings and agreements hereinafter set forth, the COUNTY and the USER agree as follows: 1. PURPOSE AND INTRODUCTION The purpose of this Agreement is to define the rights and obligations of the COUNTY and the USER with respect to the cooperative and coordinated purchase, lease, maintenance, technical and administrative support and use of portable, mobile, desktop and other end user radios by the USER on the COUNTY's System. The System is a multi-site general purpose wireless communications system designed to provide, among other things, 95% area coverage reliability for portable radio operation above ground level in light to medium buildings throughout most of the County. Other USER benefits and services include, access to a wide area nine county regionwide public safety radio communications system, multiple system redundancies with backup power, a wide range of talk groups, electronic identification of all radios on all transmissions, 99.999% microwave system reliability, encryption availability, system security, radio interoperability, 24 hour a day system monitoring and repair response, access to a pool of special event radios and USER radio user training. 2. DUTIES AND RESPONSIBILITIES OF USER 2.1 Conformance to Statewide Radio Board (SRB), Metropolitan Emergency Services Board (MESB) and COUNTY Standards USER agrees to be aware of and conform to all applicable standards, policies, procedures and protocols established or amended by the SRB, MESB and COUNTY related to use of the System including but not limited to radio user training requirements, radio operating guidelines, audit, monitoring and compliance. 2.2 Conformance to Federal Laws and Regulations USER agrees to be aware of and conform to all applicable Federal Rules, Regulation and Laws pertaining to use of the System including but not limited to the Communications Act of 1934 as Amended and Part 90 of the Federal Communications Commission Rules and Regulations. Contract No. A060824 2.3 Response to Improper Use In the event COUNTY informs USER that statistical analysis of System usage or other information indicates that USER personnel may have inappropriately used the System, or may have violated standards, policies, procedures, rules, regulations or laws regarding proper operation of the System, or may have violated the provisions of this Agreement, USER agrees to take immediate and appropriate investigative and corrective action to stop the violation and eliminate any reoccurrence. 2.4 Radio and Equipment Lease Fees USER agrees to pay to COUNTY all lease fees assessed to USER by COUNTY throughout the lease term in accordance with a lease policy established by the Board of Hennepin County Commissioners for end user radios or other related equipment furnished to USER by COUNTY under this Agreement. The specific lease fee schedule established by COUNTY and the list of equipment leased by USER shall be detailed in Appendix A attached hereto, and such Appendix A shall be made a part of this Agreement. 2.5 Subscriber Fleet Support Fees USER agrees to pay COUNTY all Subscriber Fleet Support Fees assessed to USER by COUNTY in accordance with a cost recovery policy established by the Board of Hennepin County Commissioners for costs including but not limited to programming, software updates, technical support, administrative support, configuration support, access to the special event shared pool of radios, training support and other costs attributable to USER's participation under this Agreement. The Subscriber Fleet Support Fees are subject to annual adjustment and shall be detailed in Appendix A. 2.6 Maintenance and Repair Fees USER agrees to pay COUNTY all fixed fees for Tier 1 maintenance and repair services; time and material charges for consumables and repairs not covered under Tier 1 service; and time and materials charges for Tier 2 maintenance and repair services. The Tier 1 Maintenance and Repair Fees, and the hourly rates for time and materials charges are subject to annual adjustment and shall be detailed in Appendix A. 2.7 Pass Through Metropolitan Emergency Services Board User Fees USER agrees to pay to COUNTY all user fees attributable to USER assessed to the COUNTY by the MESB, or its successor entity if applicable, and passed through by COUNTY to USER. The MESB user fees shall be detailed in Appendix A. 2.8 Invoicing and Payment Terms COUNTY will invoice USER monthly, or at other intervals as determined by COUNTY, for all fees specified herein. Principal and interest charges for leased equipment will commence when the COUNTY is invoiced by the equipment supplier. All other fees specified in this Agreement will commence as follows: For radios activated on or before the 15th of the month, USER will be charged for the entire month. For radios activated after the 15th of the month, the fees will commence on the first day of the following month. Payment of all fees herein shall be made directly to the COUNTY within thirty-five (35) days from receipt of the invoice. 2.9 Flow Down Metropolitan Emergency Services Board Contract Provisions USER agrees to comply with all applicable flow down provisions contained in Agreement No. A16906, as amended, between the COUNTY and the MESB, formerly known as the Metropolitan Radio Board, (MRB). Such flow down provisions, including any amendments thereto, are hereby incorporated herein as being part of this Agreement by this reference. 2.10 Provisional Use of USER Purchased and Owned Radios and Radio Software USER may utilize radios purchased and owned by USER on the System provided that such radios and radio operating software versions are specifically certified for use on the System by the MESB and the COUNTY. Non-certified radios, or radios operating with non-certified software versions will not be allowed to access or use the System. 3 Contract No. A060824 2.11 De-certification and Disposition of Obsolete Radios The SRB, MESB and/or COUNTY may de-certify radios and/or radio operating software versions which become obsolete for reasons including but not limited to: become unsafe to use, impair System performance, are no longer supported by the radio Manufacturer, are no longer supported by the COUNTY, exhibit substantial defects, exhibit performance deficiencies, impair implementation of System upgrades, become unreliable, become economically unfeasible to maintain, etc. Except in those cases affecting safety or performance impacts to the System, COUNTY will make reasonable efforts to avoid de-certification of radios leased to USER which have not been fully depreciated and to provide USER with at least one (1) year of advance notice prior to the effective date of radio or software version de- certification. De-certified radios, or radios operating with de-certified software versions will not be allowed to access or use the System. USER agrees to dispose of obsolete radios, batteries and other equipment in accordance with applicable laws and rules regarding disposal of hazardous materials. 2.12 Limitation of Radio Programming, Radio Code Plug Programming Files and System Key File Regardless of ownership, all radios on the System shall be programmed only by the COUNTY, and the COUNTY shall retain an archived electronic copy of all radio code plug programming files and encryption keys files installed in all USER radios covered under this Agreement. The configuration of all radio code plug programming files and radio templates shall be subject to approval by the COUNTY before the radios will be activated on the System. All radio code plug programming files, system key files and encryption key files are the sole property of the COUNTY, and contain information that is classified as security information and non-public government data. Unless specifically authorized by the COUNTY in writing, USER may not directly or indirectly, or permit any third party to: view, read, print, extract, copy, archive, edit, create, clone, transfer, tamper with or otherwise compromise the security of any radio code plug programming file, system key file or encryption key file for any radio on the System. In the event USER learns that any party has improperly or fraudulently obtained radio code plug programming file information, system key file or encryption key file, USER will immediately notify COUNTY of the security breech. 2.13 Payment for Damaged Radios USER agrees to promptly pay COUNTY for all costs incurred to repair radios damaged for any reason while leased to USER, excluding normal wear and tear which is included in the COUNTY's maintenance program, and also excluding damage which occurs while the radios are in the possession of COUNTY. 2.14 Risk of Loss for Lost, Stolen or Destroyed Radios USER assumes full risk of loss for COUNTY provided radios assigned to USER including special event and repair loaner radios temporarily assigned to USER which are lost, stolen, physically un-repairable or destroyed for any reason excluding damage which occurs while the radios are in the possession of COUNTY. USER will be invoiced, and agrees to pay, the remaining amount of the non-depreciated lease balance, including interest, for any lost, stolen or destroyed radios. Assessment of subscriber fleet support fees and Tier 1 fixed maintenance fees will be terminated upon such payment. 2.15 Notification to COUNTY of Lost or Stolen Radios USER agrees to immediately notify COUNTY of any missing, lost or stolen radios, so the radio can be deactivated on the system. 2.16 Radios Not Economical to Repair A USER radio which is covered under the annual Tier 1 fixed fee maintenance and repair services program listed in Appendix A which has malfunctioned, broken or failed, excluding a radio that is damaged, lost, stolen, destroyed or physically un-repairable as described in sections 2.13 and 2.14 above, and which the COUNTY determines cannot be economically repaired, by mutual agreement may either be: (1) replaced by COUNTY with a used radio of comparable age, value and condition if available; or (2) considered an obsolete radio, deactivated and terminated from the lease and maintenance program with no additional fees payable by USER. In the event the replacement option is chosen, the used replacement radio may, at COUNTY's option, be reconditioned or rebuilt from salvaged parts and 4 Contract No. A060824 the COUNTY shall retain or assume ownership of the original failed radio and such radio may be salvaged for spare parts, rebuilt or otherwise disposed of by COUNTY. Further, if the failed radio is a COUNTY owned radio leased to USER, and the deactivate and terminate lease option is chosen, the COUNTY shall also retain ownership and disposition rights of the failed radio. 2.17 Assignment of Leased Equipment USER may terminate in whole or part the lease of radios or other equipment under this Agreement provided USER assigns the leased equipment in writing to another authorized user who has a subscriber agreement in effect with the County and further provided that the assignee agrees in writing to make all applicable payments to COUNTY including the remaining lease payments. 2.18 Prepayment of Leased Equipment USER may pay off the remaining amount of the non-depreciated lease balance, including interest, at any time during the lease term without any additional prepayment penalty. Title to the leased equipment shall transfer to the USER upon such payoff subject to the provisions of section 3.2. 3. DUTIES AND RESPONSIBILITIES OF COUNTY 3.1 Furnishing of End User Radios COUNTY will periodically solicit orders for new, additional and replacement radios from USER. This will normally occur on an annual basis, however USER may request radios at any time. Subject to budget availability and approval by the Board of Hennepin County Commissioners, on USER's behalf COUNTY will purchase radios, receive, inventory, inspect, test, program and install radios as requested by USER. COUNTY will assist USER in selecting and ordering radios that are purchased directly by USER for use on the System. 3.2 Financing of End User Radios and Transfer of Title Subject to budget availability and approval by the Board of Hennepin County Commissioners, COUNTY will finance the purchase of radios for USER's public safety operations (police, fire, EMS or emergency management) as requested by USER. The equipment lease period shall be for the expected useful life of the equipment, as determined by COUNTY. Interest cost shall be listed in Appendix A and shall be added to the equipment cost. The combined equipment and interest cost will be depreciated over the lease period. Upon completion of payment of all principal and interest fees to COUNTY, and execution by USER of any applicable Software License Agreements or Assignment of Rights Agreements regarding use of embedded software, COUNTY shall transfer title to the leased equipment to USER. 3.3 Radio Maintenance and Repair Services COUNTY will provide two tiers of maintenance and repair services for USER radios. Tier 1 service will be provided at a fixed annual fee determined by the COUNTY and may be based on the model and age of the radio. Tier 1 service includes access to the shared pool of repair loaner radios. Tier 2 service will be provided on a time and materials basis and does not include access to repair loaner radios. Repair of Tier 1 radios may have a higher priority over Tier 2 radios if there is a backlog of repair work. The fixed annual fee for Tier 1 service includes all parts, labor and other costs to provide maintenance and repair for internally malfunctioning radios and normal wear and tear. Normal wear and tear is that anticipated degradation which normally occurs to the equipment in the regular course of work for the job position, assuming the user takes reasonable care and precaution. Tier 1 service excludes consumables such as batteries and antennas, and also excludes radio accessories. Repairs beyond internal malfunctions and normal wear and tear including damage caused by negligence or accidental damage such as fire, water immersion, crushing, dropping from a moving vehicle, etc., and consumables will be assessed on a time and materials basis in addition to the fixed annual Tier 1 maintenance fee. Unless specifically excluded by COUNTY, all radios assigned for public safety operations on the System under this Agreement, regardless of ownership, will be provided with Tier 1 maintenance service by COUNTY and will be allocated the annual fixed costs. USER owned radios assigned for non-public safety operations will be able to obtain Tier 2 maintenance services from COUNTY by mutual concurrence. 5 Contract No. A060824 3.4 Repair Loaner and Special Event Radios COUNTY will maintain a fleet of radios which will be made available to USER, generally on a first come first serve basis, for temporary assignment for special events, response to emergencies, or other similar events. USER may receive a temporary loaner radio to replace a radio taken out of service for maintenance or repair if the failed radio is covered under the Tier 1 annual fixed fee maintenance and repair services program listed in Appendix A. If there are more requests for loaner radios than can be accommodated, the COUNTY will prioritize allocations and may require that USER return repair loaner and special event radios early. 3.5 Allocation of System Resources COUNTY will allocate to USER, on a fair and non-discriminatory basis, sufficient System resources including Talk Groups, Announcement Groups, Radio Unit IDs, Alias IDs, etc. in order to provide USER with an equivalent grade of service afforded to other comparable System users. 3.6 Monitoring of USER Talk Groups COUNTY will periodically monitor talk groups allocated to USER for USER's internal use for system management purposes including but not limited to maintenance, troubleshooting, system performance assessments, unusual traffic patterns (sudden jump in usage), policy and procedure compliance checks, etc. COUNTY monitoring of USER'S talk groups may occur at any time, for any duration, may be without notice and is subject to recording. 3.7 Radio Operator Training COUNTY will provide USER with access to end user radio training instructional materials provided to COUNTY from the SRB, MESB or other sources. For the deployment of immediate and near term radios as defined in the COUNTY's Radio Purchasing and Deployment Plan adopted by Board Resolution No. 01-622R2, COUNTY will assist USER in training USER's personnel by providing a COUNTY radio trainer (or trainers) to work in conjunction with a USER provided trainer (or trainers) to deliver training to USER's radio operators. Once the near term deployment is completed, USER will have primary responsibility for training new employees and for providing refresher training. 3.8 Database Administration COUNTY will manage and administer the System database records containing the information related to inventory, configuration, programming history, software version control, radio IDs, service levels, statistical usage analysis, etc. for USER's subscriber radios used on the System. 3.9 Radio Station Licenses COUNTY shall hold and administer all FCC licenses on behalf of all users of the System. USER shall operate as authorized mobile, portable and control station units under the COUNTY's FCC radio station licenses. 4. TERM AND CANCELLATION 4.1 Term of Agreement This Agreement shall be for an initial term beginning on the date executed by the COUNTY and continuing through December 31, 2008. After the initial term and any subsequent extensions thereto, this Agreement will automatically be extended for an additional one (1) year term, unless either party gives written notice of intent not to extend to the other party, at least one hundred twenty (120) days prior to the expiration of the then current term. 4.2 Cancellation of Agreement This Agreement may be canceled with or without cause by either party upon one hundred eighty (180) days' written notice, provided that any such cancellation by COUNTY shall require action by the Board of Hennepin County Commissioners. • 6 Contract No. A060824 4.3 Actions Upon Termination Upon expiration or cancellation of this Agreement as provided for herein, USER shall either (1) assign all leased equipment in writing to another authorized user who has a subscriber agreement in effect with the County as provided for in paragraph 2.17 of this Agreement; or(2) pay COUNTY the remaining amount of the non-depreciated lease balance, including interest, which has not been recovered under lease payments as provided for in paragraph 2.18 of this Agreement; and USER shall cease all use of the System including using the system with radios owned by USER. 5. MERGER AND MODIFICATION 5.1 Entire Agreement It is understood and agreed that the entire Agreement between the parties is contained herein and that this Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter hereof. All items referred to in this Agreement are incorporated or attached and are deemed to be part of this Agreement. 5.2 Amendments to Agreement Any alterations, variations, modifications, or waivers of provisions of this Agreement, except for revisions to Appendix A as provided for below, shall only be valid when they have been reduced to writing as an amendment to this Agreement signed by the parties hereto. 5.3 Appendix A Revisions Appendix A shall be updated by COUNTY, and provided to USER annually, and at other times as deemed necessary by COUNTY, to reflect any changes to the list of available equipment, lease rates, fleet support fees, maintenance fees, MESB user fees, and the list of equipment currently under lease to USER. 6. DEFAULT 6.1 If either party hereto shall fail to fulfill its obligations under this Agreement properly and timely, or if either party hereto shall violate any of the covenants, agreements, or stipulations of this Agreement, thereupon the other party shall have the right to terminate this Agreement if the default has not been cured within thirty (30) days from the date on which the defaulting party received written notice specifying the default. This Agreement may then be terminated by the non-defaulting party giving at least ten (10) days written notice to defaulting party of such termination and specifying the effective date thereof. 6.2 In the event the COUNTY cancels this Agreement due to USER's default, USER shall return all leased equipment and other materials provided to USER by COUNTY, pay COUNTY the remainder of the balance of the original cost of the leased equipment which has not been recovered under lease payments and USER shall cease all use of COUNTY's System. In the event the USER cancels this Agreement due to the COUNTY's default, USER shall return all leased equipment and other materials provided to USER by COUNTY and USER shall cease all use of COUNTY's System. 6.3 Notwithstanding any provision of this Agreement to the contrary, the defaulting party shall not be relieved of liability to the other party for damages sustained by the non-defaulting party by virtue of any breach of this Agreement by the defaulting party. 6.4 The above remedies shall be in addition to any other right or remedy available under this contract, law, statute, rule, and/or equity. 6.5 The failure to insist upon strict performance of any provision or to exercise any right under this Agreement shall not be deemed a relinquishment or waiver of the same, unless consented to in writing. Such consent shall not constitute a general waiver or relinquishment throughout the entire term of the Agreement. 7 Contract No. A060824 7. MISCELLANEOUS PROVISIONS 7.1 Independent Parties It is mutually understood that this Agreement does not create an employment relationship between the parties, nor does it create a partnership or joint venture, nor does it constitute a cooperative agreement or joint powers agreement. 7.2 Liability Each party agrees that it will be responsible for its own acts and the results thereof, to the extent authorized by law, and shall not be responsible for the acts of the other party and the results thereof. The COUNTY's and the USER's liability is governed by the provisions of Minnesota Statutes Chapter 466, 7.3 Data Privacy USER, its officers, agents, owners, partners, employees, volunteers or subcontractors agree to abide by the provisions of the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13, and all other applicable state and federal laws, rules, regulations and orders relating to data privacy or confidentiality, and as any of the same may be amended. 7.4 Records—Availability/Access Subject to the requirements of Minnesota Statutes Section 16C.05, Subd. 5 (as may be amended), the USER agrees that the COUNTY, the State Auditor, the Legislative Auditor or any of their duly authorized representatives at any time during normal business hours, and as often as they may reasonably deem necessary, shall have access to and the right to examine, audit, excerpt, and transcribe any books, documents, papers, records, etc., which are pertinent to the accounting practices and procedures of the USER and involve transactions relating to this Agreement. Such materials shall be maintained and such access and rights shall be in force and effect during the period of the contract and for six (6) years after its termination or cancellation. 7.5 Contract Administration In order to coordinate the services of the USER with the activities of the COUNTY so as to accomplish the purposes of this contract, , shall manage this contract on behalf of the USER and serve as liaison between the COUNTY and the USER. 7.6 Notices Any notice or demand which must be given or made by a party hereto under the terms of this Agreement or any statute or ordinance shall be in writing, and shall be sent registered or certified mail. Notices to the COUNTY shall be sent to the County Administrator with a copy to the Office of the County Sheriff at the address given below. Notice to the USER shall be sent to the address stated below. To COUNTY: Hennepin County Administrator A-2303 Government Center Minneapolis, MN 55487 Copy to: Radio Communications Manager Hennepin County Sheriff's Office Communications Division 9300 Naper Street Golden Valley, MN 55427 USER: Eden Prairie Fire Department 14800 Scenic Heights Road Eden Prairie, MN 55344 8 Contract No. A060824 7.7 Minnesota Laws Govern The Laws of the State of Minnesota shall govern all questions and interpretations concerning the validity and construction of this contract and the legal relations between the herein parties and performance under it. The appropriate venue and jurisdiction for any litigation hereunder will be those courts located within the County of Hennepin, State of Minnesota. Litigation, however, in the federal courts involving the herein parties will be in the appropriate federal court within the State of Minnesota. If any provision of this contract is held invalid, illegal or unenforceable, the remaining provisions will not be affected. 7.8 Mediation The COUNTY and USER agree to submit all claims, disputes and other matters in question between the parties arising out of or relating to this Agreement to mediation. The mediation shall be conducted through the Mediation Center, 1821 University Avenue, St. Paul, Minnesota. The parties hereto shall decide whether mediation shall be binding or non-binding. If the parties cannot reach agreement mediation shall be non-binding. In the event mediation is unsuccessful, either party may exercise its legal or equitable remedies and may commence such action prior to the expiration of the applicable statute of limitations. 7.9 Related Provisions in Separate Agreement Additional provisions regarding the USER's option to provide its own maintenance and repair services, loaner radios and radio programming is contained in Article 7 of Cooperative Agreement (No. A060825) entered into by the parties hereto. In the event of inconsistencies between this Agreement and Cooperative Agreement No. A060825, the provisions of Cooperative Agreement A060825 shall prevail. This Portion of Page Intentionally Left Blank 9 Contract No. A060824 COUNTY ADMINISTRATOR APPROVAL USER, having signed this contract, and the County having duly approved this contract on the day of , 200_, and pursuant to such approval, the proper County officials having signed this contract, the parties hereto agree to be bound by the provisions herein set forth. Approved as to form COUNTY OF HENNEPIN and execution STATE OF MINNESOTA By: Assistant County Attorney County Administrator Date: USER Name: By: Title and By: Title City organized under: Statutory Option A Option B Charter IF THE CONTRACT IS WITH A CITY USE THIS SIGNATURE PAGE. IF A CITY IS ORGANIZED UNDER THE STATUTORY STANDARD FORM OR UNDER OPTIONAL PLAN A, THE MAYOR AND CLERK MUST SIGN AND THE CORPORATE SEAL MUST BE AFFIXED; UNDER OPTIONAL PLAN B, THE MAYOR AND CITY MANAGER MUST SIGN; UNDER CHARTER, INQUIRE OF CITY WHO IS AUTHORIZED TO SIGN. A NOTARY IS NOT REQUIRED, HOWEVER, A CERTIFIED COPY OF CITY COUNCIL RESOLUTION AUTHORIZING CONTRACT MUST BE ATTACHED. to • Hennepin County Sheriff's Office Communications Division Communications System Subscriber Agreement Appendix.A: 2007 Annual Subscriber Fees - ESTIMATED Year HC Subscriber Radio Board Fleet Support Fee* Fees** Total*** 2007—Motorola Radios—Tier 1 $180.89 $48.35 $229.24 2007—Non—Motorola Radios—Tier l $180.89 $36.35 $217.24 2007—Motorola Radios—Tier 2 $115.00 $48.35 $163.35 2007—Non—Motorola Radios—Tier 2 $115.00 $36.35 $151.35 2007—Motorola Radios—Admin Only $ 47.00 $48.35 $ 95.35 2007—Non—Motorola Radios—Admin Only $ 47.00 $36.35 $ 83.35 * Tier 1 Subscriber Fleet Support Fee includes programming, maintenance,repair, software updates, technical support, database and configuration support, access to the special event shared pool of radios,repair loaners, training support, and other costs attributable to supporting the radio fleet. Fleet Support Fee for Consolettes(base radios) only covers maintenance and repair on the radio unit,it does not include parts for or repair of desktop remotes,wiring for remotes, antennas or antenna feedline. Tier 2 is only available for non-county non-public safety radios and excludes all repair and repair loaners. Admin only is available only when specifically authorized by cooperative agreement. **Radio Board Fees are pass-through fees charged by the Statewide Radio Board and Metropolitan Emergency Services Board to all radio users on the system.The fee includes an annual fee of$27.22 for system operating costs and software subscription for Motorola radios ($15.22 for non-Motorola radios)plus $21.13 for MESB administrative costs. ***Total does NOT include equipment lease and interest costs for leased radios. NOTE: RATES ARE ESTIMATED PENDING APPROVAL BY THE HENNEPIN COUNTY BOARD OF COMMISSIONERS H:IALL CONTRACTS\City Coop Agreements\Eden PrairielFinallSubscriber Agreement Appendix A for 2007 DRAFT 11-2-2006.doc AA Code: GOV Contract No.: A060825 Federal Tax ID No.: 41-0855460 COOPERATIVE AGREEMENT FOR PARTICIPATION AS AN INTERCONNECTED DISPATCH FACILITY ON THE COUNTYWIDE 800 MHz TRUNKED RADIO SUBSYSTEM THIS AGREEMENT made and entered into by and between the COUNTY OF HENNEPIN, a body politic and corporate, under the laws of the STATE OF MINNESOTA, hereinafter referred to as the "COUNTY," A-2300 Government Center, Minneapolis, Minnesota 55487, and the City of Eden Prairie, a Minnesota municipal corporation, 8080 Mitchell Road, Eden Prairie, Minnesota 55344, acting by and through its duly authorized officers, hereinafter referred to as the "CITY". WITNESSETH: WHEREAS, the COUNTY and the Metropolitan Radio Board ("MRB"), entered into Agreement No. A16906, attached hereto as Exhibit A, and hereby incorporated herein by this reference, regarding the design, procurement, construction and operation of the COUNTY's 800 MHz trunked radio Subsystem including participation by municipalities; and WHEREAS, the MRB effective June 30, 2005, assigned all of its rights and responsibilities in contracts pertaining to MRB operations, including Cooperative Agreement A16906 between the MRB and the County, to a joint powers organization known as the Metropolitan Emergency Services Board ("MESB"), which consists of the counties of Anoka, Carver, Dakota, Hennepin, Ramsey, Scott and Washington, and the city of Minneapolis; and WHEREAS, the MESB, effective June 30, 2005, assumed all of the rights and responsibilities of the MRB in said contracts; and WHEREAS, the MRB ceased operations as of June 30, 2005, and the MESB is carrying on many of the functions of the former MRB now as a regional radio board pursuant to Minn. Stets. § 403.39; and WHEREAS, the CITY desires to become a full participant on the countywide 800 MHz trunked radio Subsystem; and WHEREAS, the CITY currently holds FCC licenses for 800 MHz frequencies and the COUNTY's 800 MHz Communications Plan provides that entities within Hennepin County joining the system are to co-license with and transfer to the county any 800 MHz frequencies licensed and used by them in functions that are likely to be migrated within five years to the county's subsystem of the statewide radio system; and WHEREAS, the CITY currently operates an 800 MHz trunked radio system and the CITY desires to continue to purchase and maintain its own fleet of subscriber radios at its own expense. NOW, THEREFORE, in consideration of the mutual undertakings and agreements hereinafter set forth, the COUNTY and the CITY agree as follows: 1 ARTICLE 1 PURPOSE 1.01 The purpose of this Agreement is to define the rights and obligations of the COUNTY and the CITY with respect to the cooperative and coordinated procurement, construction, operation and maintenance of CITY dispatch equipment to be interconnected with the countywide 800 MHz trunked radio Subsystem; the co-licensing by the City and County of certain 800 MHz frequencies; and the cooperative provisioning of support services including maintenance and repair of the CITY's fleet of subscriber radios. ARTICLE 2 COOPERATION 2.01 The COUNTY and the CITY will cooperate and use their best efforts to ensure that the various provisions of the Agreement are fulfilled. The parties agree in good faith to undertake resolutions of disputes, if any, in an equitable and timely manner and in accordance with the provisions of this Agreement. ARTICLE 3 DEFINITION OF TERMS 3.01 AUTHORIZED USERS. "Authorized Users" means those Eligible Users that have been duly authorized by the MESB to use the System Backbone. 3.02 COUNTY/REGIONAL INTEGRATED SUBSYSTEM. "County/Regional integrated Subsystem" means a county/regional shared subsystem which (a) shares First Phase components including sites, base stations, frequencies, antennas, microwave equipment, and the prime controller plus additions by an Authorized User; and (b) which uses First Phase infrastructures for day-to-day operations in its own county; and (c) is governed by a cooperative agreement between an Authorized User and Mn/DOT. 3.03 COUNTY SUBSYSTEM. "County Subsystem" means the Subsystem funded and constructed by Hennepin County pursuant to Agreement No. A16906. 3.04 DAY-TO-DAY USE. "Day to Day Use" means regular ongoing use of a Subsystem or the First Phase as the primary system to support the internal operations of an Authorized User. 3.05 ELIGIBLE USERS. "Eligible Users" means those public and private entities and individuals eligible to hold FCC licenses in the Public Safety Pool as defined by 47 C.F.R. § 90.20, and those entities and individuals eligible to operate radios in the Public Safety Pool under the provisions of 47 C.F.R. § 90.421. 3.06 FIRST PHASE. "First Phase" means the initial backbone of the public safety radio communications system which serves state and regional agencies. The First Phase does not include Subsystems. 3.06 FIRST PHASE VENDOR. "First Phase Vendor" means the vendor with whom Mn/DOT contracts to construct the First Phase. 2 3.07 INITIAL BACKBONE. "Initial Backbone" means the public safety radio communications system authorized by the Minnesota legislature to be funded by the sale of Metropolitan Council general obligation bonds authorized by Minnesota Statute 473.93, Metropolitan Council revenue bonds authorized by Minnesota Statute 473.898, and sale of state general obligation bonds and trunk highway fund appropriations authorized by Laws 1996, Chapter 463, Section 19. 3.08 INITIAL NETWORK. "Initial Network" means the portion of the ARMER System which was constructed concurrently by Mn/DOT, the Metropolitan Council, Hennepin County and the City of Minneapolis. The Initial Network consists of the First Phase plus the Metro Transit Data Subsystem, Hennepin County and Minneapolis Subsystems. 3.09 INITIAL NETWORK VENDOR. "Initial Network Vendor" means the vendor with whom Mn/DOT, and the City of Minneapolis and/or Hennepin County and/or the Metropolitan Council contracts to construct the Initial Network. 3.10 ITINERANT USE. "Itinerant Use" means limited temporary use of a Subsystem or the First Phase, other than the primary system, for roaming service or to enhance portable coverage to support the internal operations of an Authorized User. 3.11 LOCAL GOVERNMENT. "Local Government" means any county, home rule charter or statutory city, or town, lying in whole or in part within the metropolitan area. 3.12 LOCAL PLAN. "Local Plan" means the 800 MHz Communications Plan for Hennepin County, Minnesota as Adopted by the Hennepin County Board of Commissioners on March 26, 1996 and approved by the MRB on June 28, 1996 including any subsequent amendments upon adoption by the Hennepin County Board of Commissioners and approval by the MRB or MESB. 3.13 METRO TRANSIT. "Metro Transit" means a division within the Metropolitan Council, which operates a regionwide metropolitan transit system. 3.14 MUTUAL AID USE. "Mutual Aid Use" means limited temporary use of the First Phase for cross-jurisdiction, cross-service, or cross-technology intercommunications required among Eligible Users not supported within a local Subsystem. 3.15 PLAN. "Plan" or "Regionwide Public Safety Radio System Communications Plan" means the plan adopted on September 1, 1995 by the MRB for a regionwide public safety communications system, including subsequent amendments upon adoption by the MRB or MESB. 3.16 SUBSYSTEMS. "Subsystems" means systems identified in the Plan as Subsystems interconnected by the First Phase backbone as part of the initial Network and/or subsequent phases and operated by Local Government units or regional agencies for their own internal operations. "Subsystems" includes County/Regional Integrated Subsystems. 3.17 SYSTEM BACKBONE. "System Backbone" means a statewide public safety radio communication system that consists of a shared infrastructure, the elements of which are identified in the public safety radio communications plan adopted by the Statewide Radio Board. The system is also known as the "ARMER" system or the "Backbone System". 3 ARTICLE 4 TERM 4.01 This Agreement shall take effect upon execution by both parties hereto, and shall remain in effect until such time as this Agreement is terminated or canceled pursuant to Articles 18 or 19 of this Agreement. ARTICLE 5 SUBSYSTEM USE AND OPERATIONS 5.01 The CITY shall establish and continue an interconnection between the CITY dispatch equipment and the System Backbone provided that the CITY complies fully with the provisions of this Agreement and with all reasonable technical, operational, performance and maintenance standards established or adopted by the COUNTY and/or the MESB. 5.02 The COUNTY, consistent with its Local Plan and the MESB's Plan, shall provide the CITY with access to, and use of, talk groups, unit IDs, microwave T-1 capacity and other system resources, on a shared basis, within the overall capacities made available to the COUNTY by the MESB, necessary to provide an equivalent grade of service afforded to any and all other Authorized Users of the COUNTY Subsystem. 5.03 The CITY shall provide the services of a designated dispatch site administrator who shall coordinate with the COUNTY's Subsystem administrator regarding dispatch equipment interconnection, system configuration and network management issues. 5.04 The CITY shall operate its dispatch facility on the COUNTY Subsystem in conformance with MESB's Plan for mutual aid usage, roaming between Subsystems, scanning between Subsystems, telephone interconnect, SCADA, mobile data, GPS and other uses potentially affecting systemwide performance. The CITY shall operate its dispatch facility on the COUNTY Subsystem in conformance with the COUNTY's written operating procedures, protocols, priorities and standards for inter-agency operations occurring within the COUNTY Subsystem. 5.05 The CITY may establish its own operating procedures, protocols and priorities that are exclusive to the CITY's internal operations provided that such CITY operating procedures, protocols and priorities do not conflict with the MESB Plan, COUNTY Plan, or with any State or Federal laws, rules or regulations. • 5.06 Other than those radios to be operated by the CITY, the COUNTY shall determine which Eligible Users may have access to the COUNTY Subsystem for Day to Day Use. The COUNTY shall determine which Eligible Users may have access to talk groups and encryption code groups assigned to the COUNTY, subject to terms and conditions established by the COUNTY. ARTICLE 6 FUNDING AND OWNERSHIP OF INFRASTRUCTURE ENHANCEMENTS 6.01 The CITY shall fund the full cost for the CITY's dispatch equipment and microwave link equipment including all upstream channel bank, embassy switch, zone controller, logging equipment and any other equipment and services necessary to interconnect the CITY 4 dispatch equipment to the System Backbone that is installed at a COUNTY and/or Mn/DOT site. 6.02 The CITY shall issue appropriate purchase orders to the Initial Network Vendor (MOTOROLA), any of their subcontractors, or other contractors as determined by the CITY, for dispatch equipment and the microwave equipment and services necessary to interconnect the CITY dispatch equipment to the COUNTY Subsystem. Installation of CITY's dispatch link microwave equipment, as identified in Exhibit B, attached hereto and hereby incorporated herein by this reference, at COUNTY's site shall be subject to prior review and approval by COUNTY. Said Exhibit B shall become incorporated herein upon completion and approval of the CITY's dispatch link microwave system design and issuance of said purchase orders. 6.03 The CITY shall hold title to CITY dispatching equipment purchased by the CITY that is installed at the CITY's dispatch site, including but not limited to, console operator electronics and channel banks. The CITY shall hold title to all microwave equipment including dish antennas, antenna mounts, waveguide and alarm/control equipment that is purchased by the CITY under this Agreement and is installed at the CITY's dispatch site, and other sites including COUNTY sites, that is necessary to interconnect the CITY's dispatch equipment to the COUNTY Subsystem. 6.04 Mn/DOT shall hold title to that upstream equipment necessary to interconnect CITY dispatching equipment to the First Phase that is physically integral to, or constitutes an incremental expansion of, Mn/DOT owned First Phase equipment that is located at a Mn/DOT site. 6.05 The entity that holds title to the equipment shall be responsible for the provisioning and cost of maintenance and repairs of that owned equipment. The equipment owner may enter into such agreements, as it deems necessary, with other governmental units or private maintenance providers to accomplish maintenance and repairs. ARTICLE 7 SUBSCRIBER RADIO SUPPORT SERVICES 7.01 The CITY is entitled to Tier 1 and Tier 2 subscriber fleet support services as described in Subscriber Agreement No. A060824 ("Subscriber Agreement"), attached hereto as Exhibit C, and incorporated herein by this reference. The CITY shall have the option, to be exercised at the time of initial purchase, to provide its own maintenance, repair and programming services for its fleet of subscriber radios and to maintain its own pool of special event and repair loaner subscriber radios. 7.02 The CITY shall also have the option, in the same manner provided herein for CITY radios, to provide maintenance, repair and programming services for 1SD 272 and SouthWest Transit. Except for ISD 272 and SouthWest Transit, the CITY is prohibited from providing fleet support services to other entities on the COUNTY Subsystem without the COUNTY's written consent. 7.03 Support services as described in the Subscriber Agreement shall be provided on a per- radio basis, based on annual service terms from January 1 through December 31. City may add additional radios to the Subscriber Agreement at any time during a term. The cost of adding each radio added to the Subscriber Agreement mid-term shall be that of 5 the per-radio cost for a radio for a full 12-month term, prorated based on the number of months remaining in the current term. 7.04 All new CITY radios operating on the COUNTY Subsystem will automatically be excluded from the COUNTY fleet support program detailed in Agreement No. A060824, unless the CITY notifies COUNTY of its intent to Opt In on a per radio basis. The CITY may add radios to the COUNTY fleet support program at any time. The Opt In notification shall include radio model and serial number information for each radio to be included in COUNTY fleet support. CITY radios which have been included in the COUNTY's fleet support program, either initially or by subsequent notice by CITY as specified herein, may not be thereafter excluded by the CITY without COUNTY's written consent. 7.05 In the event of a temporary hardship such as loss or absence of a CITY employee, or in an emergency, by mutual concurrence COUNTY may provide CITY with temporary fleet support which may include all or a portion of maintenance, repair, programming, loaner radios or other related services. This provision is not intended to facilitate interim fleet support on a recurring basis or for an extended period of time. Radios receiving fleet support under this provision, except in the event of temporary loss, absence or reassignment of a CITY employee, for a period of more than ninety (90) days within any twelve (12) month period shall be deemed to have been permanently added to the COUNTY fleet support program and may not be Opted Out without COUNTY's written consent. Fees for such temporary services will be calculated on either a time and materials basis or prorated annual fleet support fees, whichever is greater. 7.06 CITY shall be entitled to a reduction in fleet support fees to compensate CITY for providing its own maintenance, repair, programming and loaner pool services for Opted Out radios. The amount of fee reduction shall be calculated annually by COUNTY based on the cost of Opt Out services. The CITY will be responsible to COUNTY for that portion of fleet support fees for COUNTY's administrative costs to support CITY's Opted Out radios, along with all pass through fees from the MESB. 7.07 CITY may only use radios on the COUNTY Subsystem that are approved by the MESB and the COUNTY. In the event CITY desires to use radios that have not previously been tested and approved, the CITY will acquire sample radios and submit them for testing to the MESB and COUNTY. COUNTY may delay, condition or deny approval for radios if it reasonably determines that the radios pose a substantive safety risk to users or materially impair the performance, reliability, integrity or security of the COUNTY's Subsystem. 7.08 Prior to installation in subscriber radios CITY will provide COUNTY with an electronic copy of all new or modified radio code plugs for review and approval. CITY shall provide COUNTY with an archived version of all production code plugs installed in CITY radios. COUNTY may require CITY, upon reasonable notice, to install updated code plugs necessary to resolve issues posing a substantive safety risk to users or that materially impair the performance, reliability, integrity or security of the COUNTY's Subsystem. COUNTY may likewise delay, condition, or deny approval for code plugs if it reasonably determines that the code plugs pose a substantive safety risk to users or materially impair the performance, reliability, integrity or security of the COUNTY's Subsystem. 7.09 Prior to installation in subscriber radios CITY will provide COUNTY with radio firmware version information for review and approval. COUNTY may require CITY, upon 6 reasonable notice, to install updated firmware versions necessary to resolve issues posing a substantive safety risk to users or that materially impair the performance, reliability, integrity or security of the COUNTY's Subsystem. COUNTY may likewise delay, condition or deny approval of firmware versions if it reasonably determines that the firmware poses a substantive safety risk to users or materially impairs the performance, reliability, integrity or security of the COUNTY's Subsystem. 7.10 CITY shall provide COUNTY with complete, up to date, and detailed subscriber radio inventory records for all CITY radios, including spare radios, operating on the COUNTY Subsystem. Inventory information shall include radio make, model number, serial number, flash code, option codes, activation date, warranty end date, ARMER unit 1D, firmware version, code plug version and any other information reasonably requested by the COUNTY. 7.11 CITY's provisioning of fleet support services utilizing internal personnel or outside contractors shall be in conformance with applicable Statewide Radio Board and MESB Maintenance Standards. CITY shall provide COUNTY with a contact list of all staff personnel and contractors providing fleet support to CITY's radios. ARTICLE 8 PHYSICAL PLANT SITE IMPROVEMENTS AND SITE ACCESS 8.01 The CITY shall be responsible for funding and staffing all necessary planning, design, procurement and construction of any and all improvements to physical plant facilities at the CITY's dispatch site that are required to house and install the CITY dispatching equipment and microwave equipment covered under this Agreement. 8.02 The COUNTY shall be responsible for funding and staffing all necessary planning, design, procurement and construction of any and all improvements to physical plant facilities, excluding microwave antenna mounts and any tower structural reinforcements that may be necessary, at COUNTY sites that are required to house and install the microwave equipment covered under this Agreement. The COUNTY shall provide the CITY and/or CITY's maintenance contractors with 24 hour per day, 365 day per year, access to the COUNTY's facilities to provide maintenance and repairs to CITY's microwave equipment. ARTICLE 9 ALLOCATION OF INFRASTRUCTURE OPERATING COSTS 9.01 The MESB may assess, and the CITY shall pay, reasonable user fees to recover a portion of the actual operating and administrative costs of the System Backbone, including future additions and changes to the First Phase. System Backbone operating and administrative costs that may be allocated to the CITY by the MESB are limited to actual expenditures for the costs of operation, administration and maintenance of the First Phase, recurring costs for site leasing, and a reasonable prorated share of equipment costs for moves, additions, changes and replacement of shared System Backbone equipment used by the CITY. 9.02 The MESB is required in Agreement No. A16906 to provide to the COUNTY no later than August 1 of each year for the upcoming calendar year a budget plan indicating the fixed amount of user fees that will be payable by the Day to Day Users of the COUNTY 7 Subsystem, and the formula(s) used to establish user fees for all Authorized Users of the System Backbone. User fees may be calculated based on a per radio flat fee, or on actual usage factors such as traffic patterns, air time usage, and other factors affecting system capacity and efficiency as determined by the MESB. The COUNTY will forward a copy of the MESB's budget plan to the CITY upon written request. The MESB may require the COUNTY to collect user fees assessed by the MESB to the CITY. 9.03 The CITY shall pay all operating costs associated with the CITY's dispatch equipment, the CITY's microwave equipment located at the CITY's dispatch site, other upstream equipment at COUNTY and/or Mn/DOT sites necessary to interconnect the CITY's dispatch facility with the System Backbone, and reasonable prorated operating costs allocated to the CITY by the Hennepin County Board of Commissioners for the CITY's use of the COUNTY Subsystem. Operating costs may include but are not limited to: antenna site rental, utilities, software upgrades, batteries, system maintenance and repairs. 9.04 The CITY shall pay all MESB user fees and other reasonable operating costs allocated to the CITY as provided for herein in the form and manner prescribed by the MESB and/or the COUNTY. ARTICLE 10 MOVES, ADDITIONS AND CHANGES 10.01 The COUNTY and CITY acknowledge that the MESB has the authority to allocate costs for moves, additions and changes (MACs) to the System Backbone among Authorized Users. 10.02 With respect to allocation of costs of MACs within the COUNTY Subsystem including the CITY's dispatch equipment and the CITY's microwave equipment, if the MAC is required by and/or solely benefits only one party, then that party shall be responsible for payment of all costs associated with the MAC. If the MAC is required by and/or benefits multiple parties, or is required by third party action, then the costs of the MAC shall be allocated on a fair, equitable and reasonable manner among the benefiting and/or affected parties. 10.03 In the event the MESB reasonably determines that dispatch,console access port(s) used by the CITY on the master site audio switch need to be conserved to permit future additions to the System Backbone, the CITY shall reconfigure its dispatch console Central Electronics Bank (CEB) to permit the sharing of its CEB with another Authorized User, provided that all costs associated with such CEB reconfiguration shall be paid for by the new Authorized User or others and not by CITY. CITY shall not be required to relocate its CEB if there are other technical and cost effective methods proposed by CITY to provide the necessary conservation of audio switch port(s). The CITY reserves the right to enter into a reasonable cooperative agreement with such new Authorized User to define the rights, obligations, ownership, cost allocations, remedies, etc. with respect to reconfiguring and sharing the CITY's CEB. ARTICLE 11 FCC LICENSES AND ABANDONMENT OF RADIO CHANNELS 11.01 The COUNTY shall have sole responsibility and authority to hold the FCC radio station licenses for the COUNTY Subsystem, including all end user radios authorized as Day-to- 8 Day Users of the COUNTY Subsystem. The CITY dispatch facility and CITY radios shall be authorized to operate under the COUNTY's FCC licenses. The CITY shall operate its dispatch facility in compliance with all applicable FCC rules and regulations and shall be responsible for any violations thereof attributable to the CITY. 11.02 The CITY shall have sole responsibility and the authority to hold the FCC radio license for the microwave link to the COUNTY Subsystem. The CITY shall operate the microwave equipment in compliance with all applicable FCC rules and regulations and shall be responsible for any violations. 11.03 The CITY shall initially co-license with, and subsequently transfer, subject to the terms of this Agreement, primary use to the COUNTY, all 800 MHz frequencies licensed to and used by the CITY for those functions that are likely to be migrated within five years to the COUNTY's Subsystem. The co-licensing and the transfer of primary use shall occur as regular day to day use of the 800 MHz frequencies by the CITY is phased out. 11.04 The CITY is currently licensed on eight 800 MHz frequency pairs. Six of the pairs (FCC channels 220, 260, 300, 340, 380 and 391) are currently used for an analog trunked radio system which the CITY intends to continue operating until all CITY operations are converted to the COUNTY Subsystem. Two of the pairs (FCC channels 236 & 276) are currently used as conventional repeaters for voice system backup. The CITY will initially co-license channels 236 & 276 with the COUNTY on a co-primary basis for use by the COUNTY in a transportable trunked system that is used for emergency back up operations and deployment outside of the service area of the ARMER system. Any use of COUNTY's transportable trunked system within the coverage area of Eden Prairie will be coordinated with the CITY to assure non-interference. 11.05 Other than for initial testing purposes necessary to install and certify the equipment, the COUNTY's operation on the co-licensed and/or transferred channels will be delayed until such time that the CITY's transition to the COUNTY Subsystem is underway and/or the CITY commences discontinuation of the existing CITY system(s). The COUNTY and CITY shall cooperate and mutually agree on the timing of channel activation by the COUNTY to insure there is satisfactory capacity on both systems and mutual non- interference during the transition period. 11.06 In the future the CITY shall also co-license with, and subsequently transfer primary use to the COUNTY, any remaining 800 MHz frequencies licensed to and used by the CITY upon plans by the CITY to phase out operations on those frequencies within the subsequent five years. 11.07 CITY may regain sole primary use of any frequencies licensed to CITY, which CITY has transferred co- or sole primary use of to COUNTY under this Agreement, and for which COUNTY has purchased and/or constructed permanent or transportable fixed facilities, subject to the following conditions: A. This Agreement has been terminated by CITY as a result of a default by COUNTY in accordance with Article 19 of this Agreement; or B. This Agreement is terminated by COUNTY in accordance with Article 18.02 of this Agreement; or 9 C. The Eden Prairie City Council adopts a Resolution that it no longer desires to use the ARMER System Backbone, including the COUNTY Subsystem, due to unacceptable cost, performance, coverage, grade of service or technology issues; and D. CITY provides COUNTY with twelve (12) months written notice of its desire to regain sole primary use; and E. CITY terminates all operations and use of the ARMER System Backbone, including the COUNTY Subsystem, upon transfer of primary use back to CITY. 11.08 CITY may regain sole primary use of any frequencies licensed to CITY, which CITY has transferred co- or shared primary use of to COUNTY under this Agreement, and for which COUNTY has not purchased and/or constructed permanent or transportable fixed facilities, by providing COUNTY with twelve (12) months written notice of its desire to regain sole primary use. 11.09 In the event CITY exercises its right to reclaim frequencies and/or regain sole primary use thereof, under this Agreement, COUNTY shall have the option, subject to City's approval which may not be unreasonably delayed, conditioned or denied, to provide substitute 800 MHz frequencies, or other suitable frequencies including 700 MHz. 11.10 In the event CITY exercises its right to reclaim frequencies and/or regain sole primary use thereof, under this Agreement, each party shall be responsible for any costs associated with reconfiguring their respective radio systems as a result of frequency changes. ARTICLE 12 INDEPENDENT CONTRACTOR 12.01 Each party is, and shall remain, an independent contractor with respect to all services performed under this Agreement. Each party shall select the means, method, and manner of performing their respective services herein. Nothing is intended or should be construed in any manner as creating or establishing the relationship of co-partners between the parties hereto or as constituting either party as the agent, representative, or employee of the other for any purpose or in any manner whatsoever. Each party represents that it has or will secure at its own expense all personnel required in performing their respective services under this Agreement. Any and all personnel of either party or other persons engaged in the performance of any work or services under this Agreement shall not be considered an employee of any other party. Any and all claims that may or might arise under the Unemployment Compensation Act, the Workers' Compensation Act of the State of Minnesota, or any other applicable Federal or State law, rule, or regulation on behalf of said personnel, arising out of employment or alleged employment, including, without limitation, claims of discrimination against either party, its officers, agents, contractors, or employees shall in no way be the responsibility of the other party. Each party shall defend, indemnify, and hold the other party, its officers, agents, and employees harmless from any and all such claims. Such personnel or other persons shall neither require nor be entitled to any compensation, rights, or benefits of any kind whatsoever from the other party, including, without limitation, tenure rights, medical and hospital care, sick and vacation leave, Workers' Compensation, Re- Employment Insurance, disability, severance pay, or PERA. 10 ARTICLE 13 INDEMNIFICATION AND INSURANCE 13.01 Each party agrees that it shall be responsible for its own acts and the results thereof, to the extent authorized by the law, and shall not be responsible for the acts of the other party and the results thereof. The COUNTY's and the CITY's liability is governed by the provisions of Minnesota Statutes, Chapter 466. The COUNTY and the CITY each warrant that they are able to comply with the aforementioned indemnity requirements through an insurance or self-insurance program. ARTICLE 14 DATA PRIVACY 14.01 COUNTY and CITY each agree to abide by all applicable State and Federal laws and regulations concerning the handling and disclosure of private and confidential information concerning individuals and/or data including but not limited to information made non- public by such laws or regulations. ARTICLE 15 MINNESOTA LAWS GOVERN AND SEVERABILITY 15.01 The laws of the State of Minnesota shall govern all questions and interpretations concerning the validity and construction of this Agreement and the legal relations and performance obligations between the parties herein. ARTICLE 16 RECORDS - AVAILABILITY 16.01 Subject to the requirements of Minnesota Statutes Section 16C.05, Subd. 5 (as may be amended), COUNTY and CITY agree that the other party, the State Auditor, the Legislative Auditor or any of their duly authorized representatives, at any time during normal business hours, and as often as they may reasonably deem necessary, shall, after providing reasonable notice to the other party, have access to and the right to examine, audit, excerpt, and transcribe any books, documents, papers, records, etc., which are pertinent to the accounting practices and procedures of the other party and involve transactions relating to this Agreement. Such materials shall be maintained and such access and rights shall be in force and effect during the period of the Agreement and for six (6) years after its termination or cancellation. ARTICLE 17 MERGER AND MODIFICATION 17.01 It is understood and agreed that the entire Agreement between the parties is contained herein and that this Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter hereof. All items referred to in this Agreement are incorporated or attached and are deemed to be part of this Agreement. Any alterations, variations, modifications, or waivers of provisions of this Agreement shall only be valid when they have been reduced to writing as an amendment to this Agreement signed by the parties hereto. If there is any conflict between the terms of this Agreement and referenced or attached items, the terms of this Agreement shall prevail. 11 ARTICLE 18 TERMINATION OF AGREEMENT 18.01 The CITY or COUNTY shall have the right to terminate this Agreement at any time for any reason by giving written notice to the other party of such termination and specifying the effective date therefore at twenty-four (24) months prior to the effective date of such termination. Such termination shall require the CITY to discontinue and remove its dispatch console connection to the COUNTY Subsystem. 18.02 The COUNTY shall have the right to terminate this Agreement when the COUNTY Subsystem reaches the end of its useful life or is substantially replaced, whichever occurs first. The COUNTY shall provide the CITY with at least twenty four (24) months written notice prior to the effective date of such termination. ARTICLE 19 DEFAULT 19.01 If either party hereto shall fail to fulfill its obligations under this Agreement properly and timely, or if either party hereto shall violate any of the covenants, agreements, or stipulations of this Agreement, thereupon the other party shall have the right to terminate this Agreement if the default has not been cured within thirty (30) days from the date on which the defaulting party received written notice specifying the default. This Agreement may then be terminated by the non-defaulting party giving at least ten (10) days written notice to defaulting party of such termination and specifying the effective date thereof. A. It is agreed that any right or remedy provided for herein shall not be considered as the exclusive right or remedy of the non-defaulting party for any default in any respect by the defaulting party, but such right or remedy shall be considered to be in addition to any right or remedy hereunder or allowed by law, equity, or statute. B. The non-defaulting party's failure to insist upon strict performance of any covenant, agreement, or stipulation of this Agreement or to exercise any right herein contained shall not be a waiver or relinquishment of such covenant, agreement, stipulation, or right, unless the non-defaulting party consents thereto in writing. Any such written consent shall not constitute a waiver or relinquishment in the future of such covenant, agreement, stipulation or right. ARTICLE 20 DISPUTE RESOLUTION 20.01 If a dispute should arise between the COUNTY and the CITY with respect to the administration of this Agreement or any of its provisions by the Hennepin County Sheriffs Office, COUNTY and CITY agree to attempt to settle such dispute through the following methods in the order provided below: A. By bringing the issue to the Hennepin County Sheriff's Dispatch Users' Advisory Board, or to a future committee responsible for 800 MHz Subsystem operations, and if unsuccessful B. By use of a mediator mutually acceptable to both parties prior to commencement of 12 any legal action on the part of either party with respect to this Agreement, any of its provisions and/or its enforcement, provided that recommendations of the mediator shall be non-binding unless agreed to in writing by both parties. The costs of such mediation shall be borne equally by COUNTY and CITY. If the dispute is related to non-conformance of MESB Standards, then compliance and conflict resolution procedures established by the MESS will be followed. ARTICLE 21 AGREEMENT ADMINISTRATION 21.01 In order to coordinate the services of COUNTY with the activities of the CITY so as to accomplish the purposes of this Agreement, the following individuals or their designees shall administer this Agreement on behalf of the COUNTY and CITY. COUNTY: Mr. Roger R. Laurence Radio Communications Manager Hennepin County Sheriffs Office 9300 Naper Street Minneapolis, MN 55427 CITY: City of Eden Prairie Attention: Fire Chief 8080 Mitchell Road Eden Prairie, MN 55344 ARTICLE 22 PAPER RECYCLING 22.01 The COUNTY encourages CITY to develop and implement an office paper and newsprint-recycling program. ARTICLE 23 NOTICES 23.01 Any notice, report or demand which must be given or made by a party hereto under the terms of this Agreement or any statute or ordinance shall be in writing, and shall be sent registered or certified mail. Notices to the COUNTY shall be sent to the County Administrator and Agreement administrator at the addresses given in the opening paragraph and contained in Article 21 to this Agreement. Notice to CITY shall be sent to the Agreement administrator at the address as given in Article 21. ARTICLE 24 MISCELLANEOUS PROVISIONS 24.01 Data Practices Act. COUNTY and CITY shall at all times abide by the Minnesota Government Data Practices Act, Minn. Stat. Section1301, et seq., as to the extent that the Act is applicable. 24.02 Discrimination. In performance of this Agreement, COUNTY and CITY shall not 13 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, any subcontractor, or any applicant for employment. Each party shall include a similar provision in all contracts with subcontractors to this Agreement. COUNTY and CITY further agree to comply with all aspects of the Minnesota Human Rights Act, Minn. Stat. Section 363.01, et seq., Title VI of the Civil Rights Act of 1964, and the Americans with Disabilities Act of 1990. 24.03 Conflicts. No salaried officer or employee of the CITY and no member of the Board of the CITY shall have a financial interest, direct or indirect, in this Agreement. The violation of this provision renders the Agreement void. 24.04 COUNTY's Prompt Payment of Subcontractors. The COUNTY shall pay to any subcontractor within ten (10) days of the COUNTY's receipt of payment from the CITY for undisputed services provided by the subcontractor. The COUNTY shall pay interest of one and a half percent (1 2°/0) 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 payment for an unpaid balance of $100.00 or more is $10.00. For an unpaid balance of less than $100.00, the COUNTY shall pay the actual amount due to the subcontractor. 24.05 Limitation of Remedies. In the event of a breach of this Agreement by COUNTY or CITY, the other party shall not be entitled to recover punitive, special or consequential damages or damages for loss of business. The remainder of this page intentionally left blank. 14 COUNTY BOARD APPROVAL CITY, having signed this Agreement, and the COUNTY having duly approved this Agreement on the day of , 2007, and pursuant to such approval, the proper COUNTY officials having signed this Agreement, the parties hereto agree to be bound by the provisions herein set forth. COUNTY OF HENNEPIN Reviewed by County STATE OF MINNESOTA Attorney's Office: By: Assistant County Attorney Chair of Its County Board Date: And: Deputy/County Administrator Attest: Deputy/Clerk of County Board CITY OF EDEN PRAIRIE APPROVAL The Eden Prairie City Council duly approved this Agreement on the day of , 2007. Approved as to form CITY OF EDEN PRAIRIE and legality: By: City Attorney Mayor And: City Manager 15 July 14, 2005 METROPOLITAN EMERGENCY Hennepin County Attn: Sandra Vargas, County Administrator . SERVICES A-2303 Government Center BOARD Minneapolis,MN 55487 Metro Counties RE: Notice of Assignment of Agreement Government Center Dear Ms. Vargas: The purpose of this correspondence is to notify you of the 2099 University Ave_W assignment of the Cooperative Agreement for the Design, Suite 201 Procurement, Construction and Operation of an 800 MHz Saint Paul, Minnesota Digital Trunked Radio Subsystem and the Master Lease 55104-3431 Agreement for Lease of Space for the Public Safety Radio Communication System (the"Agreements")by the Phone: (651) 603-0100 Metropolitan Radio Board ("MRB") to the Metropolitan Emergency Services Board("MESB"). As you may be Fax: (651) 603-0101 aware, the MRB agreed with the Governor to sunset on June 30, 2005. The duties and responsibilities of the MRB have been incorporated into the MESB, an entity created Membersvia amendment to the Joint Powers Agreement governing the Metropolitan 911 Board. In connection with the Anoka transfer of the duties and responsibilities of the MRB to the • MESB, the Agreements were assigned from the MRB to • Carver the MESB. a Dakota Please send all future correspondence, invoices and/or • Hennepin payments to the Metropolitan Emergency Services Board, 2099 University Avenue West, Suite 201, St. Paul,MN e Ramsey 55104. ■ Scott Washington We look forward to working with you in the future. Please • feel free to contact us with any questions. • City of Minneapolis Sincerely, Sincerely, )1itt - ocL ' of �g c Nancy Pollock ' Jill Rohret Executive Director Regional Radio Services Coordinator cc: Carla J. Pedersen Roger Laurence COOPERATIVE AGREEMENT Between the COUNTY OF HENNEPIN and the METROPOLITAN RADIO BOARD for the DESIGN, PROCUREMENT, CONSTRUCTION AND OPERATION of an 800 MHZ DIGITAL TRUNKED RADIO SUBSYSTEM Hennepin County Contract No . A16906 Metropolitan Radio Board Contract No. TABLE OF CONTENTS SECTION PAGE ARTICLE I. -1- PURPOSE ARTICLE II. -2- COOPERATION ARTICLE III. -2- DEFINITION OF TERMS ARTICLE IV. -3- TERM ARTICLE V. -3- SUCCESSOR TO RADIO BOARD ARTICLE VI. -3- CANCELLATION ARTICLE VII. -4- CONFORMANCE TO PLANS, NETWORK INTERCONNECTION AND AUTHORIZATION FOR USE ARTICLE VIII. -4- USE OF BACKBONE SYSTEM RESOURCES ARTICLE IX. -5- OWNERSHIP OF FIXED ASSETS ARTICLE X. -6- ANTENNA SITE PROPERTY INTERESTS ARTICLE XI. -6- ALLOCATION OF CONSTRUCTION AND INFRASTRUCTURE COSTS AND EXCESS CAPACITIES RESERVED FOR FUTURE USE ARTICLE XII. -7- ALLOCATION OF OPERATING COSTS ARTICLE XIII. -8- PAYMENT AND TRANSFER OF FUNDS ARTICLE XIV. -9- REQUESTS FOR PROPOSALS (RFP) AND/OR BIDS (RFB) AND PROPOSAL AND/OR BID EVALUATION ARTICLE XV. -9- AWARD OF CONTRACTS AND SUBSYSTEM DESIGN APPROVAL ARTICLE XVI. -10- CONSTRUCTION AND SYSTEM ACCEPTANCE ARTICLE XVII. -11- FCC LICENSES AND ABANDONMENT OF RADIO CHANNELS ARTICLE XVIII. -12- NETWORK OPERATIONS, PRIORITIES AND PROTOCOLS ARTICLE XIX. -12- SYSTEM MAINTENANCE • TABLE OF CONTENTS SECTION • PAGE ARTICLE XX. - -12- INDEMNIFICATION AND INSURANCE ARTICLE XXI. --13- CONFLICT RESOLUTION ARTICLE XXII. • -13- CONTRACT ADMINISTRATION ARTICLE XXIII. -13- . PAPER RECYCLING ARTICLE XXIV. -13- NOTICE ARTICLE XXV. -14- MERGER AND MODIFICATION ARTICLE XXVI. -14- RECORDS - AVAILABILITY ARTICLE XXVII. -14- DATA PRIVACY ARTICLE XXVIII. _14_ INDEPENDENT CONTRACTOR • ARTICLE XXIX. -15- MINNESOTA LAWS GOVERN AND SEVERABILITY ARTICLE XXX. -15- CONTRACTOR INSURANCE ARTICLE XXXI . -16- APPLICABLE PROVISIONS OF LAW COUNTY BOARD APPROVAL -17- EXHIBIT A -18- COUNTY OWNED SUBSYSTEM EQUIPMENT EXHIBIT B -19- BACKBONE EQUIPMENT ADDED TO A COUNTY ANTENNA SITE TO BE OWNED BY THE COUNTY EXHIBIT C -19- COUNTY SUBSYSTEM EQUIPMENT ADDED TO FIRST PHASE ANTENNA 'SITES TO BE OWNED BY Mn/DOT EXHIBIT D -19- En_UTPMvNT nDEDD TO NETWORK CONTROL 7 SITES -_ ... .A.+.+-. L.v t1.L:.av:sl.e:.i it J11�J TO INTERCONNECTTHE COUNTY SUBSYSTEM TO THE FIRST PEASE TO BE OWNED BY Mn/DOT EXHIBIT E -20- PROJECTED DATES FOR ABANDONMENT OF VOICE FREQUENCIES LICENSED TO THE COUNTY Hennepin County Contract No. A16906 Metropolitan Radio Board Contract No. COOPERATIVE AGREEMENT FOR THE DESIGN, PROCUREMENT, CONSTRUCTION AND OPERATION OF AN 800 MHZ DIGITAL TRUNKED RADIO SUBSYSTEM THIS AGREEMENT, made and entered into by and between the __ County of Hennepin, a body politic and corporate, under the laws of the State of Minnesota, hereinafter referred to as the "COUNTY, " A-2303 Government Center, Minneapolis, Minnesota, 55487, and the Metropolitan Radio Board, a political subdivision, under the laws of the State of Minnesota, hereinafter referred to as the "RADIO BOARD, " c/o Metropolitan Council, Mears Park Centre, 230 East Fifth Street, St. Paul, Minnesota, 55101. WITNESET H: WHEREAS, pursuant to Minn. Stats . 5§ 471.59 and 473 . 894 the COUNTY and the RADIO BOARD have the authority to enter into cooperative agreements, and WHEREAS, the COUNTY and the RADIO BOARD have entered into Agreement No. A21355 with respect to COUNTY participation in the design of an 800 MHZ trunked radio system, and WHEREAS, the RADIO BOARD has approved the COUNTY' s 800 MHZ Communications Plan which proposes implementation of a countywide 800 MHZ public safety digital trunked radio system to be integrated with the First Phase of the regionwide public safety radio communications system, and WHEREAS, the COUNTY desires to procure and construct its Subsystem to coincide with the procurement and construction schedule for the First Phase, and WHEREAS, the RADIO BOARD and the Minnesota Department of Transportation, hereinafter referred to as "Mn/DOT, " have entered into an Agreement with respect to the funding, design, procurement, construction and operation of the First Phase. NOW, THEREFORE, in consideration of the mutual undertakings and agreements hereinafter set forth, the COUNTY and the RADIO BOARD agree as follows : ARTICLE I. PURPOSE 1 . 01 The ou=ss of ihiz Agreeza_t is to define the rights and obligations of the COUNTY and the RMDIO BOARD with respect to the cooperative and coordinated design, procurement, construction, operation and maintenance of a countywide 800 • MHZ digital trunked radio subsystem to be integrated with the First Phase of the regionwide public safety radio communications system. c.,DOcsaacai..ti1COti .,�'.u9�G-+.Y:.boC• r6 -1 ARTICLE II . COOPERATION 2 . 01 The COUNTY and the RADIO BOARD will cooperate and use their best efforts to ensure that the various provisions of this Agreement are fulfilled. The parties agree in good faith to undertake resolutions of disputes, if any, in an equitable and timely manner and in accordance with the provisions of this Agreement. • ARTICLE TII. DEFINITION OF TERMS 3 . 01 PLAN. "Plan" or "Regionwide Public Safety Radio System ' Communications Plan" means the plan adopted on September 1, 1995 by the RADIO BOARD for a regionwide public safety communications system, including subsequent amendments upon adoption by the RADIO BOARD. 3 . 02 FIRST PHASE. "First Phase" means the initial backbone of the public safety radio communications system which serves state and regional agencies . The First Phase does not include Subsystems. 3 . 03 SUBSYSTEMS. "Subsystems" means systems identified in the Plan as Subsystems interconnected by the First Phase backbone in subsequent phases and operated by Local Government units for their own internal operations . 3 . 04 COUNTY SUBSYSTEM. "County Subsystem" means the Subsystem funded and constructed by Hennepin County pursuant to this Agreement. 3 . 05 LOCAL GOVERNMENT. "Local Government" means any county, home rule charter or statutory city, or town, lying in whole or in part within the metropolitan area. 3 . 06 BACKBONE SYSTEM. "Backbone System" means a regionwide public safety radio communication system that consists of a shared regionwide infrastructure, the elements of which are identified in the regionwide public safety radio • communications plan, and Subsystems interconnected by the shared regionwide network. 3 . 07 INITIAL NETWORK. "Initial Network" means the portion of the Backbone System to be constructed concurrently by Mn/DOT, the COUNTY and the City of Minneapolis. The Initial Network consists of the First Phase plus the Hennepin County and Minneapolis Subsystems . 3 . 08 ELIGIBLE USERS. "Eligible Users" means those public and private entities and individuals eligible to hold FCC licenses in the Public Safety and Special Emergency Radio Services as defined. by 47 G.F.R. Part 90, Subparts B and C, and those entities and individuals eligible operate radios in the Public Safety and Special Emergency Radio Services under vDocs opLA icoN-tancn+msaGtrnoc.srr,c -2- the provisions of 47 C.F.R. § 90 . 421 . 3 . 09 AUTHORIZED USERS. "Authorized Users" means those Eligible Users that have been duly authorized by the RADIO BOARD to use the Backbone System. 3 . 10 DAY TO DAY USE. "Day to Day Use" means regular ongoing use of a Subsystem or the First Phase as the primary system to support the internal operations of an Authorized User. 3 . 11 ITINERANT USE. "Itinerant Use" means limited temporary use of a Subsystem or the First Phase, other than the primary system, for roaming service or to enhance portable coverage to support the internal operations of an Authorized User. 3 . 12 MUTUAL AID USE. "Mutual Aid Use" means limited temporary use of the First Phase for cross-jurisdiction, cross-service, or cross-technology intercommunications required among Eligible Users not supported within a local Subsystem. 3 . 13 LOCAL PLAN. "Local Plan" means the 800 MHZ Communications Plan for Hennepin County, Minnesota as Adopted by the Hennepin County Board of Commissioners on March 26, 1996 and approved by the RADIO BOARD on June 28, 1996 including subsequent amendments upon adoption by the Hennepin County Board of Commissioners and approval by the RADIO BOARD. ARTICLE IV. TERM 4 . 01 This Agreement shall take effect upon execution by both parties hereto, and shall remain in effect until such time as either the First Phase or the COUNTY Subsystem is either removed from service, or is substantially replaced, at the end of its useful life, or this Agreement is terminated or canceled pursuant to Article VI of this Agreement, whichever occurs first. ARTICLE V. SUCCESSOR TO RADIO BOARD 5 . 01 Upon abolishment of the RADIO BOARD and transfer of the RADIO BOARD ' S duties and responsibilities to the Metropolitan Council or an appropriate state agency, the designated agency, as provided by law, shall become successor to the property, interests, obligations, and rights of the RADIO BOARD under this Agreement. ARTICLE VI . C 'CELLATION 6 . 01 In the event the COUNTY does not award vendor purchase agreements for its Subsystem pursuant to Article XV of this Agreement, this Agreement may be canceled by the COUNTY or the RADIO BOARD upon serving 30 (thirty) calendar days written notice of intent to cancel to 'the other party. CMOCSaIXTL uxcaxtancr,4s-SACa,rr,Doc-or_f%% -3- • 6 . 02 This Agreement shall terminate upon abolishment of the RADIO BOARD if no designated agency is named as a successor agency. 6 . 03 This Agreement may be canceled by the COUNTY in the event the RADIO BOARD is abolished and a member of the HENNEPIN COUNTY BOARD OF . COMMISSIONERS is not entitled to serve as. a voting member of a policy board of the designated successor agency authorized to allocate costs and resources of the Backbone System within the seven metropolitan counties. 6 . 04 Any material violation of the terms and conditions of this Agreement shall constitute a default. In the event of a default, the non-defaulting party may give the defaulting party notice of' said default. Upon notice, the defaulting party shall have a period of . 30 (thirty) calendar days to cure said default. If the default is not cured to the satisfaction of the non-defaulting• party, said party may terminate this Agreement immediately. 6 . 05 The RADIO BOARD, or its successor agency, shall provide the COUNTY with written notice within 5 (five) working days of receipt or transmission by the RADIO BOARD of any notice of non-performance or default on the part of the RADIO BOARD or other party or parties with which the RADIO BOARD has entered into an agreement with. ARTICLE VII. CONFORMANCE TO PLANS, NETWORK INTERCONNECTION AND AUTHORIZATION FOR USE 7 . 01 The COUNTY Subsystem shall be constructed and operated in confoLmance with the COUNTY' s Local Plan. 7 . 02 The COUNTY Subsystem, including subscriber equipment operated on the COUNTY Subsystem, shall comply with technical and performance standards established or adopted by the RADIO • BOARD. 7 . 03 The COUNTY and the RADIO BOARD agree to interconnect the COUNTY Subsystem with the First Phase, utilizing compatible technology. • 7 . 04 The COUNTY shall make its Subsystem available for Itinerant Use by Authorized Users from other local Subsystems and the First Phase in conformance with the RADIO BOARD' s Plan. 7 . 05 The COUNTY, consistent with its Local Plan, shall determine whether Authorized Users may have access to the COUNTY Subsystem for Day to Day Use subject to terms and conditions determined by the COUNTY. ARTICLE VIII. USE OF BACKBONE SYSTEM RESOURCES 8 . 01 The RADIO BOARD, consistent with its Plan, shall provide the COUNTY with use of the First Phase for Mutual Aid Use, -Q.•••• C6QPLAMCONTiAC71NIRBAGM.DOC-9R5196 :DCS�A i' Itinerant Use, Day to Day Use for emergency medical services, Day to Day Use for wide area operational units routinely operating outside the COUNTY, network switching functions, microwave transport, antenna site use, telephone interconnect use, and other services provided to Authorized Users . 8 . 02 The RADIO BOARD, consistent with its Plan, shall provide the COUNTY with access to, and use of, adequate frequencies, talk groups, unit IDs and other system. resources, on a shared basis, within the overall capacities available, necessary to provide an equivalent grade of service afforded to any and all other Authorized Users, including provisions for planned growth. ARTICLE IX. OWNERSHIP OF FIXED ASSETS 9 . 01 The COUNTY shall hold title to all COUNTY Subsystem infrastructure equipment, dispatching equipment and subscriber units, except for that equipment described in Paragraphs 9 . 03 and 9 .04 of this Agreement. Examples of equipment owned by the COUNTY includes , but is not limited to, the equipment set forth on the equipment list incorporated herein and attached hereto as Exhibit A. 9 . 02 The COUNTY shall hold title to that equipment necessary to add Backbone System equipment to a COUNTY antenna site that is physically integral to, and constitutes an incremental expansion of, COUNTY equipment. Examples of equipment owned by the COUNTY includes, but is not limited to, the equipment set forth on the equipment list incorporated herein and attached hereto as Exhibit B. • 9 . 03 Mn/DOT shall hold title to that equipment necessary to add COUNTY Subsystem equipment to a First Phase antenna site that is physically integral to, and constitutes an incremental expansion of, First Phase equipment. Examples of equipment owned by Mn/DOT includes, but is not limited to, the equipment set forth on the equipment list incorporated herein and attached hereto as Exhibit C. 9 . 04 Mn/DOT shall hold title to that equipment necessary to interconnect the COUNTY Subsystem to the First Phase that is physically integral to, and constitutes an incremental expansion of, First Phase equipment. Examples of equipment owned by Mn/DOT includes, but is not limited to, the equipment set forth on the equipment list incorporated herein and attached hereto as Exhibit D. 9 . 0 of the Initial Network, the final detailed equipment ownership lists, and identification of all First Phase and COUNTY sites, shall be agreed to by the COUNTY and RADIO BOARD in accordance with Article XV of this Agreement. Said agreement shall be incorporated herein as part of this Agreement. C:DOCSUMPLV35C NTACIIMRBAGMC.➢GC-9/I3% ARTICLE X. ANTENNA SITE. PROPERTY INTERESTS 10. 01 The COUNTY shall enter into mutually agreeable leases and licensing agreements with the RADIO BOARD for use of COUNTY owned antenna sites and network control sites that are necessary for construction of the First Phase and for additions to the Backbone System including Subsystems conforming to the RADIO BOARD ' s Plan to be owned by local governments other than the COUNTY. • The COUNTY retains approval authority for, and shall hold title to, any and all permanent improvements made to COUNTY buildings and facilities including, but not limited to, remodeling, expansion, structural improvements to COUNTY towers, and upgraded mechanical and electrical systems . 10.02 The COUNTY shall negotiate and draft leases and licensing agreements needed to obtain the real property interests for Subsystem antenna sites that are not First Phase sites, and are not owned by the COUNTY, that are necessary for the construction of the COUNTY' s Subsystem. The RADIO BOARD and the COUNTY shall be named as lessee/licensee in the antenna site leases and licensing agreements with the property owners. The leases and licensing agreements shall contain provisions ,whereby the RADIO BOARD may authorize installation and maintenance of Subsystem equipment owned by local government agencies. The RADIO BOARD shall review .the draft leases and other documents for those COUNTY Subsystem sites that are not part of the First Phase and, upon approval by the RADIO BOARD and the County Board, the COUNTY shall proceed to obtain the property interests that are necessary for the COUNTY' s Subsystem. ARTICLE XI . ALLOCATION OF INITIAL CONSTRUCTION AND INFRASTRUCTURE COSTS AND EXCESS CAPACITIES RESERVED FOR FUTURE USE 11 . 01 The COUNTY shall fund infrastructure equipment and installation costs for COUNTY Subsystem equipment, COUNTY subscriber equipment, and that equipment necessary to interconnect the COUNTY Subsystem to the First Phase. 11. 02 The COUNTY shall fund capital construction, site equipment and installation costs for COUNTY antenna sites that are not First Phase antenna sites, and are necessary for the COUNTY ct�1',cTc�•a+++ 11. 03 Prior to the COUNTY being required to fund, finance, or otherwise pay for its portion of the initial capital construction, site equipment, infrastructure equipment or installation costs necessary for the Initial Network, the COUNTY and the RADIO BOARD shall mutually agree to the allocation of construction and infrastructure costs as well as a detailed equipment list identifying ownership of all fixed assets pursuant to Article XV of this Agreement. Said agreement shall be incorporated herein as part of this Agreement. 11. 04 COUNTY antenna sites shall be constructed with reasonable excess structural capacities , physical space, mechanical, electrical, and microwave system capacities sufficient to accommodate future expansion of the COUNTY Subsystem, future additions of First Phase equipment, and future additions of adjacent local Subsystem equipment not owned by the COUNTY. At such time excess capacities at COUNTY funded. antenna sites are allocated to Authorized Users external to the COUNTY Subsystem by the RADIO BOARD, and subject to agreement by the COUNTY, the RADIO BOARD shall allocate reasonable prorated site construction and site equipment costs initially borne by the COUNTY among such Authorized Users of COUNTY sites and equipment based on actual use of such sites. 11 . 05 First Phase antenna sites and network controller sites shall be constructed with reasonable excess structural capacities, physical space, mechanical, electrical, and microwave system capacities sufficient to accommodate future local Subsystem equipment, including the COUNTY' s Subsystem as proposed in the COUNTY' s Local Plan, and future expansion of the First Phase. ARTICLE XII . ALLOCATION OF OPERATING COSTS 12 . 01 The RADIO BOARD may assess, and the COUNTY shall pay, a reasonable prorated share of recurring antenna site costs, based on actual use, of those shared antenna sites used as COUNTY Subsystem antenna sites including lease fees, power utilities , tower maintenance, building upkeep, etc. The RADIO BOARD shall provide to the COUNTY no later than August 1 of each year for the upcoming year a proposed budget plan indicating the COUNTY' s prorated share of recurring antenna site costs for those First Phase sites housing COUNTY Subsystem equipment. 12 . 02 The RADIO BOARD may assess , and the COUNTY shall pay, reasonable user fees to recover a portion of the actual operating and administrative costs of the Backbone System, including future additions and changes to the First Phase. Backbone System operating and administrative costs that may be a.l ocate'd to the CCJ Ni'Y by the R. .DIO BOARD D ate limited to actual expenditures for the costs of operation, administration and maintenance of the First Phase, recurring costs for site leasing, and a reasona.hle prorated share of equipment costs for moves , additions, changes and replacement of shared Backbone System equipment used by the COUNTY. c. o.csv pl;..`cograAc-rm BAG.Krnoc•srsr The RADIO BOARD shall provide to the COUNTY no later than August 1 of each year for the upcoming calendar year a budget plan indicating the fixed amount of user fees that will be payable by the Day to Day Users of the COUNTY Subsystem, and the formula(s) used to establish user fees for all Authorized Users of . the Backbone System. User fees may be calculated based on a per radio flat fee, or on actual usage factors such as traffic patterns, air time usage, and other factors affecting system capacity and efficiency as determined by the RADIO BOARD. 12 . 03 The RADIO BOARD shall allocate operating costs for COUNTY owned or operated sites and site equipment that are used by the First Phase, future additions to the First Phase, and local Subsystems not owned by the COUNTY. The RADIO BOARD shall assign costs and assess reasonable fees to current and future users of the Backbone System and shall reimburse the COUNTY for costs up to but not exceeding actual expenditures directly attributable to non=COUNTY shared use of COUNTY owned or operated sites and site equipment. Site operating costs shall be prorated and allocated to each site occupant based on actual use of COUNTY antenna sites and site equipment. Allocation and assignment of operating costs by the RADIO BOARD shall commence upon actual use. The COUNTY shall provide to the RADIO BOARD no later than June 1 of each year for the upcoming year a budget plan indicating the prorated operating costs for the portion of COUNTY owned or operated sites and site equipment that is allocated or- actually used by Authorized Users external -to the COUNTY Subsystem in conformance with the RADIO BOARD' s Plan. Reimbursable prorated operating costs that may be claimed by .the COUNTY are limited to antenna site lease fees, power utilities, tower maintenance, building upkeep and equipment maintenance provided pursuant to Paragraphs 10. 01 and 11. 04 of this Agreement, and the costs of repair and maintenance provided pursuant to Paragraph 19 . 01 of this Agreement for non-COUNTY Backbone System equipment, that is owned by the COUNTY, that is added to a COUNTY site pursuant to Paragraph 9. 02 of this Agreement. 12 . 04 The annual budget plan to be prepared by August 1 of each year by the RADIO BOARD shall reconcile any differences between budgeted prorated antenna site costs and user fees paid or credited and the actual incurred costs for the preceding calendar year and apply either a credit or charge to the COUNTY' s account for the upcoming calendar year. If mutually agreed to by the COUNTY and the RADIO BOARD, the adjustment for the preceding calendar year may be applied to the remaining account balance for the current calendar year. ARTICLE XIII . PAYMENT AND TRANSFER OF FUNDS 13 . 01 The RADIO BOARD shall invoice the COUNTY quarterly, in advance, for the prorated antenna site costs and user fees '-8" cmocssaopLA �co:rRrtrn AGN{T.Doc.sr-.r:v payable by the COUNTY, less credits for site operating cost reimbursements due to the COUNTY pursuant to Paragraph 12. 03 of this Agreement. The COUNTY shall make full remittance to the RADIO BOARD within 45 (forty five) calendar days following receipt of an invoice from the RADIO BOARD for the COUNTY' s prorated share of recurring antenna site costs and user fees. ARTICLE XIV. REQUESTS FOR PROPOSALS (RFP) AND/OR BIDS :(RFB) AND PROPOSAL AND/OR BID EVALUATION 14 . 01 The RADIO BOARD shall incorporate the COUNTY Subsystem design into the First Phase RFP/RFB documents to be developed by the RADIO BOARD and forwarded to Mn/DOT for publication and issuance. The RADIO BOARD shall include those special or supplementary Subsystem terms and conditions , design requirements, and system options requested by the COUNTY that are in -conformance with the RADIO BOARD's Plan. 14 . 02 The RADIO BOARD shall administer the proposal/bid evaluation process for the Initial Network, including the development of evaluation criteria and the selection of evaluators . Evaluators shall have expertise in the area being evaluated. The COUNTY shall participate in each component of the evaluation. ARTICLE XV. AWARD OF CONTRACTS AND SUBSYSTEM DESIGN APPROVAL 15 . 01 The RADIO BOARD shall concurrently provide the COUNTY, the City of Minneapolis and Mn/DOT with a contract award recommendation for construction of the Initial Network. The RADIO BOARD ' s contract award recommendation shall include the proposal/bid evaluation results including vendor selection, a recommended Initial Network system design, a detailed equipment list identifying recommended ownership of all fixed assets, and a detailed plan for allocation of all construction and infrastructure costs for the Initial Network. The COUNTY shall provide a written response to the - RADIO BOARD within 60 (sixty) calendar days of initial receipt of the RADIO BOARD' s recommended contract award, indicating whether the COUNTY accepts, or proposed revisions to, the RADIO BOARD' s Initial Network contract award recommendation and a declaration regarding the COUNTY' s intention to proceed with executing purchase agreements ) with the vendor(s) recommended by the RADIO BOARD. 15 . 02 In the event the COUNTY proposes revisions to the RADIO BOARD' s cost allocation and equipment ownership plan, the RADIO BOARD and the COUNTY shall take necessary actions to reach mutual agreement. If the parties cannot reach mutual agreement on the cost allocation and equipment ownership plan within 120 (one hundred twenty) calendar days of initial receipt of the RADIO BOARD' s recommended contract award, the cmocssoari coNTR AcP.�Qsncr mr,oc-m,I -9- provisions of Article XXI of this Agreement shall be employed to reach a resolution. 15 . 03 In the event the COUNTY proposes substantive changes to the RADIO BOARD's recommended COUNTY Subsystem portion of the system design or vendor selection included in the contract award recommendation submitted to the COUNTY, the RADIO BOARD shall complete a review to determine if the proposed revisions conform with the RADIO BOARD's Plan within 30 (thirty) calendar days of receipt of the COUNTY' s design or vendor change request. If the RADIO BOARD determines that the COUNTY Subsystem design or vendor change does not conform with the RADIO BOARD' s Plan, the RADIO BOARD and the COUNTY shall take 'necessary actions to reach mutual agreement on the proposed design or vendor change. If the parties cannot reach mutual agreement on the Subsystem design or vendor change within 120 (one hundred twenty) calendar days of initial receipt of the RADIO BOARD' s recommended contract award, the provisions of Article XXI of this Agreement shall be employed to reach a resolution. 15 .04 In the event the COUNTY has not authorized purchase agreements with radio and microwave vendors for a Subsystem design approved by the. RADIO BOARD within 180 (one hundred eighty) calendar days of initial receipt of the RADIO BOARD' s recommended contract. award, and Mn/DOT is ready to recommend award of purchase agreements to the Minnesota Department of Administration, the RADIO BOARD and Mn/DOT may delete the COUNTY Subsystem from the Initial Network construction plan and proceed with necessary design revisions, award of vendor contracts , and construction of the First Phase and the Minneapolis Subsystem without the COUNTY Subsystem. Such deletion of the COUNTY Subsystem from the Initial Network construction plan shall require mutual agreement by the RADIO BOARD and Mn/DOT. 15 . 05 COUNTY acceptance of the RADIO BOARD' s recommended technical design included in the RADIO BOARD's contract award recommendation made to the COUNTY shall constitute the RADIO BOARD' s approval of the technical design of the COUNTY Subsystem. ARTICLE XVI . CONSTRUCTION AND SYSTEM ACCEPTANCE 16 . 01 The COUNTY and the RADIO BOARD shall develop a joint construction plan in cooperation with Mn/DOT to facilitate the coordinated simultaneous construction of the First Phase, the COUNTY Subsystem and the Minneapolis Subsystem as a concurrent Initial Network construction project. 16 . 02 Subsystem design changes during the construction phase shall be reviewed and approved in accordance with administrative change order procedures mutually agreed to by the COUNTY and the RADIO BOARD. CnIXIC WO?LANICON-SAC BAGMT,pOC•9r23r.76 —10— 16 . 03 The COUNTY and the RADIO BOARD shall develop a joint system acceptance plan in cooperation with Mn/DOT for the Initial Network. The COUNTY reserves the right, at its own cost, to conduct independent supplementary acceptance testing for requirements unique to its Subsystem. Acceptance or non- acceptance of the First Phase by Mn/DOT and the RADIO BOARD -• shall not in any way prejudice the ability. of the COUNTY to accept or reject any or all portions of its Subsystem. • ARTICLE XV/I. FCC LICENSES AND ABANDONMENT OF RADIO CHANNELS 17 . 01 Upon approval of the COUNTY ' s Subsystem technical design, in . accordance with Article XV of this Agreement, the RADIO BOARD grants the COUNTY authorization to, and the COUNTY shall, apply to the Federal Communications Commission, hereinafter referred to as "FCC" , to become a co-licensee for the COUNTY Subsystem and subscriber units. The COUNTY shall pay all costs, and shall provide all administrative support, associated with its portion of the FCC co-licensing applications. The COUNTY shall be fully responsible for future costs and administrative support associated with maintaining its FCC licenses, and compliance with FCC rules and regulations for its Subsystem and subscriber equipment. 17 . 02 The COUNTY reserves the right to retain sufficient currently licensed voice and non-voice frequencies, including those frequencies listed in Exhibit E attached hereto, and to license additional frequencies, to accommodate fire paging, mutual aid, departments electing not to use the 800 MHZ system, and for non-voice uses such as SCADA, siren control, mobile data, GPS, etc. 17 . 03 The COUNTY shall relinquish use of current voice radio frequencies, not retained pursuant to Paragraph 17 . 02 of this Agreement, licensed by the FCC to the COUNTY in a timely manner once users are converted to the 800 MHZ system. Anticipated dates for abandonment of voice frequencies currently licensed to the COUNTY are set forth on the list incorporated herein and attached hereto as Exhibit E. The COUNTY shall notify the RADIO BOARD at least 60 (sixty) calendar days prior to abandonment of any currently licensed frequencies and shall assign, subject to FCC approval pursuant to 47 C.F.R. § 90 . 153, FCC licenses held for such frequencies to the RADIO BOARD. The RADIO BOARD shall provide all administrative support and shall pay all costs for assignment and modification of license applications submitted to the FCC. If the RADIO BOARD elects not to apply to the FCC for assignment of licenses for frequencies relinquished by the COUNTY within 180 (one hundred eighty) calendar days of the COUNTY' s notification, the COUNTY may assign such licenses to c:.uOCMOPLAN4CONTRACiiNGLUAGV.Doc-7rs+r -1 1- any other Eligible User or may cancel its licenses for abandoned frequencies . 17 . 04 The COUNTY shall require suburban municipalities and other COUNTY Subsystem user agencies, as a condition of being permitted to use the COUNTY Subsystem, to relinquish frequencies licensed to them and to assign such frequencies to the RADIO BOARD in the same manner as provided for in Paragraphs 17 . 02 and 17. 03 of this Agreement. ARTICLE XVIII . NETWORK OPERATIONS, PRIORITIES AND PROTOCOLS 18 . 01 The COUNTY shall provide the services of a designated Subsystem administrator who shall coordinate with the Mn/DOT network administrator regarding Subsystem interface and overall Backbone System network management issues . 18 . 02 The COUNTY shall operate the COUNTY Subsystem in conformance with RADIO BOARD ' s Plan for mutual aid usage, roaming between Subsystems, scanning between Subsystems, telephone interconnect, SCADA, mobile data, GPS and other uses potentially effecting systemwide performance. 18 . 03 The COUNTY shall have sole authority and responsibility for the establishment of operating procedures, protocols, priorities, and standards for local government operations including dispatching occurring within the COUNTY Subsystem. 18 . 04 The COUNTY shall deteimine whether Eligible Users may have access to COUNTY assigned talkgroups and encryption code groups subject to te.cros and conditions determined by the COUNTY. ARTICLE XIX. SYSTEM MAINTENANCE 19 . 01 The COUNTY shall be responsible for the provision of maintenance and repairs for Backbone System equipment owned by the COUNTY as defined in Paragraphs 9 . 01 and 9 . 02 of this Agreement. Maintenance provided by the COUNTY effecting the overall reliability and performance of the Backbone System shall be in conformance with standards and procedures mutually developed and agreed to by the COUNTY and the RADIO BOARD. The COUNTY may enter into such agreements , as it deems necessary, with other governmental units or private maintenance providers to accomplish maintenance and repairs . ARTICLE XX. INDEMNIFICATION AND INSURANCE 20 . 01 Each party agrees that it will be responsible for its own acts and the results thereof, to the extent authorized by the law, and shall not be responsible for the acts of the other party and the results thereof. The COUNTY' s and the RADIO BOARD' s liability is governed by the provisions of Minn. CADQCSISUOPLA ICON ITIAC1MWAGNMDOC-92'M6 -12- Stats . , Chapter 466 . The COUNTY and the RADIO BOARD each warrant that they are able to comply with the aforementioned indemnity requirements - through an insurance or self-insurance program and have minimum coverage consistent with the liability limits contained in Minn. Stats. , Chapter 466. ARTICLE XXI . - CONFLICT RESOLUTION 21. 01 If a dispute should arise between the COUNTY and the RADIO BOARD with respect to this Agreement or any of its provisions, COUNTY and RADIO BOARD agree to attempt to settle such dispute through the use of a mediator mutually acceptable to both parties prior to commencement of any legal action on the part of either party with respect to this Agreement, any of its provisions and/or its enforcement. The costs of such mediation shall be borne equally by COUNTY and RADIO BOARD. ARTICLE XXII . CONTRACT ADMINISTRATION 22 . 01 In order to coordinate the activities of the RADIO BOARD and the COUNTY so as to accomplish the purposes of this Agreement, the following individuals , or their designees or successors, shall manage this Agreement on behalf of the RADIO BOARD and the COUNTY. COUNTY: Mr. Roger R. Laurence Radio Communications Manager Hennepin County Sheriff ' s Office 9300 Naper Street Golden Valley, MN 53427-3728 RADIO BOARD: Chair of the Radio Board, through his/her designated representative, Ms. Ellen (Pat) Quirk Pahl C/O Metropolitan Council 230 East Fifth Street St. Paul, MN 55101 ARTICLE XXIII . PAPER RECYCLING 23 . 01 The COUNTY encourages RADIO BOARD to develop and implement an office paper and newsprint recycling program. ARTICLE XXI.J'. NOTICE 24 .01 Any notice, report of demand which must be given or made by a party hereto under the terms of this Agreement or any statute or ordinance shall be in writing, and shall be sent C_..pOCSvcvnpLANTONTaACI ARBAGNCIDOC•u'-'sr]G -1 3 registered or certified mail. Notices to the COUNTY shall be sent to the County Administrator and Contract Administrator at the addresses given at the opening paragraph and contained in Article XXII to this Agreement. Notices to RADIO BOARD shall be sent to the Contract Administrator at the address given in Article XXII. ARTICLE XXV. MERGER AND MODIFICATION 25 .01 It is understood and agreed that the entire Agreement between the parties is contained herein and that this Agreement sup'ersedes all oral agreements and negotiations between the parties relating to the subject hereof. All items referred to in this Agreement are incorporated or attached and are deemed to be part of this Agreement. Any alterations, variations, modifications, or waivers of provisions of this Agreement shall only be valid when they have been reduced to writing as an amendment to this Agreement signed by the parties hereto. ARTICLE XXVI. RECORDS - AVAILABILITY 26 . 01 RADIO BOARD and COUNTY agree that each party hereto, the State Auditor, or any of their duly authorized representatives at any time during normal business hours, and as often as they reasonably deem necessary, shall have access to and the right to examine, audit, excerpt, and transcribe any books, documents, papers, records, etc. , which are pertinent to the accounting practices and procedures of the other party hereto and involve transactions relating to this Agreement. • ARTICLE XXVII . DATA PRIVACY 27. 01 RADIO BOARD and COUNTY agree to abide by all applicAhle State and Federal laws and regulations and confidential information concerning individuals and/or data including but not limited to information made non-public by such laws or regulations . ARTICLE XXVIII . INDEPENDENT CONTRACTOR 28 . 01 Each party is, and shall remain, an independent contractor with respect to all services performed under this Agreement. Each party shall select the means , method, and manner of performing their respective services herein Nothing is intended or should be construed in any manner as creating or establishing the relationship of co-partners between the parties hereto or as constituting either party as the agent, representative, or employee of the other for any purpose or in any manner whatsoever. Each party represents that it has or will secure at its own expense all personnel required in ca' oCSUCOPLAN5COta MACTLNtnawcanr-Doc-ar_1r3c n'- performing their respective services under this Agreement. Any and all personnel of either party or other persons engaged in the performance of any work or services under this Agreement shall have no contractual relationship with the other party, and shall not be considered -an employee of any other party. Any and all claims that might arise under the Unemployment Compensation Act, the Workers ' Compensation Act of the State of Minnesota, or any other applicable Federal or State law, rule, or regulation on behalf of said personnel, arising out of employment or alleged employment, including, without limitation, claims of discrimination against either party, its officers, agents, contractors, or employees shall in no way be the responsibility of the other party. Each party shall . defend, indemnify, and hold the other party, its officers; agents, and employees harmless from any and all such claims .' Such personnel or other persons shall neither require nor be entitled to any compensation, rights, or benefits of any kind whatsoever from the other party, including, without limitation, tenure rights, medical and hospital care, sick and vacation leave, Workers ' Compensation, Re-Employment Insurance, disability, severance pay, or PERA. • ARTICLE XXIX. MINNESOTA LAWS GOVERN AND SEVERABILITY 29 . 01 The laws of the State of Minnesota shall govern all questions and interpretations concerning the validity and construction of this Agreement and the legal relations and performance obligations between the parties herein. ARTICLE XXX. CONTRACTOR INSURANCE 30 . 01 COUNTY agrees that any construction contracts let by the COUNTY for the construction of the Initial Network as provided in this Agreement shall include clauses that will: 1) require the contractors to defend, indemnify, and save harmless the RADIO BOARD, its officers, agents and employees from claims , suits, demands , damages , judgements, costs , interests, expenses (including, without limitation, reasonable attorney' s fees, witness fees and disbursements incurred in the defense thereof) arising out of or by reason of the negligence of said contractor, its officers , employees, agents or subcontractors; and 2) require the contractors to provide and maintain insurance, and to provide RADIO BOARD with Certificates of Insurance naming RADIO BOARD as additional insured, as provided in the RFP/RFE documents developed by the RADIO BOARD and issued by the State of Minnesota pursuant to Article XIV of this Agreement; and 3 ) require the contractor to be an independent contractor for the purposes of completing the work provided for in this Agreement.C.WOCS1& h-RC 1npLAMCOALNIRDACIAT DOC-9r2'19f, -1 5- ARTICLE XXXI . APPLICABLE PROVISIONS OF LAW 31 .01 Applicable provisions of Minnesota State Law, Federal Law and any applicable local ordinance shall be considered a part of this Agreement as though fully set forth herein. Specifically, COUNTY agrees to comply with all federal, state and local applicable laws and ordinances relating to nondiscrimination, affirmative action, public purchases, contracting, employment including workers ' compensation and state labor wage provisions, and surety deposits required for construction contracts. -- THIS PORTION OF PAGE INTENTIONALLY LEFT BLANK -- cmoc,�soopL Amcor ranrn 4R5A nrr.00c-9r_1rli -1 5- COUNTY BOARD APPROVAL RADIO BOARD, having signed this contract, and the Hennepin County Board of Commeers avin d�y approved this contract on �the , day of , 199 nd pursuant to such approval, the proper COUNTY officia s having signed this contract, the parties hereto agree to be bound by the provisions herein set forth. Approved as to form. COUNTY OF HENNEPIN STATE OF MINNESOTA ASSYstant County Attorney, Chair of Its Co ty Board Date: .`/c /.c// _ (,. L_ / •• And: 6. ( �_� . 7 / Associate/Couunty Administrator Approved aasito execua . 1 1 r/' '7 ATTEST:_ k.,\.r i vi„ k1 , Ci ih,t/:'z'�C L.-� "� ` (.Deputy/Clerk of County / oard Ass. stant County Att/o/rney. J Date: ;f. %l i Zz)7 f' i r // �' / 7 METROPOLI RADIO BO D Name: r___„:1) 1rt� Ch it ' ' " ` Approved as to form and Date: 1 v T /I P�r� ex tion. } te94- ( ,ede71,- --e._ (!ye.<-/,; Legal Counsel' : f . Date: /o !/:;%/ �'� �c cwocsnnonAmo r Ac\MaBAGMTDoc•,mm -17- EXHIBIT A COUNTY OWNED SUBSYSTEM EQUIPMENT At COUNTY antenna sites not part of the First Phase: Radio towers Tower lighting 800 MHZ transmit and receive antennas/feed lines Buildings to house equipment Building security fences Glass fiber cable Air conditioning units Uninterruptable power systems Emergency generator units Digital microwave radio equipment Microwave radio antennas/wave guides Digital DS-3 multiplex and T-1 channel banks Subsystem digital simulcast mobile relay stations Subsystem simulcast control equipment Transmitter combiners Isolaters RF filters Receiver multicouplers Duplexers Subsystem site controllers Subsystem control equipment and back up control equipment At First Phase antenna sites housing COUNTY Subsystem equipment: 800 MHZ transmit antennas/feed lines Subsystem digital simulcast mobile relay stations Subsystem simulcast control equipment Transmitter combiners Isolaters RF filters Duplexers Subsystem site controllers Subsystem control equipment and back up control equipment At COUNTY dispatch points: Radio towers Tower lighting Air conditioning units Uninterruptable power systems Emergency generator units Dispatch consoles Recording equipment Subsystem network control terminals Digital microwave radio equipment Microwave radio antennas/wave guides Digital DS-3 multiplex and T--1 channel banks At independent suburban dispatch points within the COUNTY: Digital microwave radio equipment Microwave radio antennas/wave guides Digital DS-3 multiplex and T--1 channel banks C:`Docsm65L..V+ICONTZACL4�AG(S.DOC-7as/7. -1 8"` • EXHIBIT B BACKBONE EQUIPMENT ADDED TO A COUNTY ANTENNA SITE TO BE OWNED BY THE COUNTY Expansion of digital DS-3 multiplex and T-I channel banks Expansion of battery and power systems Expansion of existing (Subsystem) site controllers Expansion of existing (Subsystem) simulcast controllers Expansion of existing receiver antenna multicouplers Expansion of existing transmitter antenna combiners EXHIBIT C COUNTY SUBSYSTEM EQUIPMENT ADDED TO FIRST PHASE ANTENNA SITES TO BE OWNED BY Mn/DOT Expansion of digital DS-3 multiplex and T-1 channel banks Expansion of battery and power systems Expansion of existing (First Phase) site controllers Expansion of existing (First Phase) simulcast controllers Expansion of existing receiver antenna multicouplers Expansion of existing transmitter antenna combiners EXHIBIT D EQUIPMENT ADDED TO NETWORK CONTROLLER SITES TO INTERCONNECT THE COUNTY SUBSYSTEM TO THE FIRST PHASE TO BE OWNED BY Mn/DOT Expansion of centralized network controllers, i.e. , network control servers , audio switching, logging recorder distribution, telephone interconnect terminals, console audio distribution, microwave radios , DS-3 multiplex, T-1 channel banks, modems, fiber terminals, etc. . Expansion of battery and power systems --- THIS PORTION OF PAGE INTENTIONALLY LEFT BLANK - C.^.DOCMOOPLAMCo4 RACT 1A3'ACMTDOC-9P.5194 -19- EXHIBIT E PROJECTED DATES FOR ABANDONMENT OF VOICE FREQUENCIES LICENSED TO THE COUNTY Year ending: 1998 1999 2000 2001 Beyond Frequencies: 39.9000 45.6600 153.7700 150.7900 154.3850 457.5250 153.8450 154.0550 151.2500 154.3550' 457.5500 153.9050 154.8300 151.4300 154.9950 '.457.5750 154.0250 155.3250 154.4300 155.8200 457.6000 154.1000 155. 6100_ 451/456.7500 155.0550 460/465.3000 154.7250 453/458.1500 453/458.0250 460/465.4000 154.7550 453/458.1875 453/458.1250 461/466. 1625 155. 0100 453/458.2000 462/467.9500 461/466.2375 155.6850 453/458.3875 462/467.9750 461/466.2625 155.7000 453/458.4250 463/468.0000 461/466.3125 ` 155.8050 453/458.4375 ' 463/468.0250 ' 461/466.3375 155.8500_ 453/458.4750 463/468.0500 463/468.7625 156. 1500 453/458.5750 463/468.0750 v 467.7500 158. 8050 453/458.5875 463/468.1000 467.7750 460/465.2000 453/458.8000 463/468.1250 467. 8000 460/465.2750 453/458. 8500 463/468.1500 467.8250 460/465.4750 453/458. 8625 463/468.1750 467.8500 460/465.5250 453/458.9000 467.8750 467.9000 467.9250 -20- C.`6 C if ILf5sBOOPROJEATURNBACICXLS-52SI 6 Q^--ii .. ET, AT HENS N p' COUTMS COPY METROPOLITAN RADIO BOARD Mears Park Centre, 230 E. Fifth St. , St. Paul, Minnesota 55101 RESOLUTION NO. 96- /© RESOLUTION AUTHORIZING CHAIR TO ENTER INTO A CONTRACT WITH HENNEPIN COUNTY WHEREAS, Minnesota Statutes section 473 . 894, subdivision 21 provides that the Radio Board may enter into contracts necessary to carry out its responsibilities; and WHEREAS, the Metropolitan Radio Board has responsibility to determine under what conditions metropolitan counties and cities of the first class will have access to the first phase backbone for purposes of adding local subsystems to the backbone; and WHEREAS, the Metropolitan Radio Board and Hennepin County have reached agreement on those conditions of access including but not limited to construction, ownership, operation, maintenance, cost allocation and finance; NOW, THEREFORE BE IT RESOLVED BY THE METROPOLITAN RADIO BOARD: 1 . THAT the Metropolitan Radio Board authorizes its Chair to execute an Agreement with Hennepin County for addition of the Hennepin County subsystem to the first phase backbone of the regionwide public safety radio communications system; and 2 . That the Agreement contain substantially the provisions • attached to this resolution, subject to review by legal counsel and subject to non-substantial modifications if deemed necessary by the Chair. Ad i�ted thi 4th day of October, 1996 '-.„:4, 1(.4L4 Dafrid McCauley, Chair Tracy S'anson, Secretary 9075cl • Contract No. A-1 6906 AMENDMENT NO. I TO COOPERATIVE AGREEMENT FOR THE DESIGN, PROCUREMENT, CONSTRUCTION AND OPERATION OF AN 800 MHZ DIGITAL TRUNKED RADIO SUBSYSTEM THIS AGREEMENT, made and entered into by and between the County of Hennepin, a body politic and corporate, under the laws of the State of Minnesota, hereinafter referred to as the "County,".A-2303 Government Center, Minneapolis, Minnesota, 55487, and the Metropolitan Radio Board, a political subdivision under the laws of the State of Minnesota, hereinafter referred to as the "Radio Board," c/o Metropolitan Council. Mears Park Centre, 230 East Fifth Street, St. Paul, Minnesota, 55101. WITNES SETH: WHEREAS, pursuant to certain provisions contained in Agreement No. A-16906 (the "Agreement") between the County and the Radio Board, the parties hereto are required to enter into this Agreement in order to establish the allocation of ownership and costs for elements of the Initial Network, and WHEREAS, In accordance with the Agreement, the Radio Board has developed and adopted a Request for Proposal for the Initial Network which includes the First Phase'and the Metro Transit Data Subsystem, Hennepin County and CIty of Minneapolis Subsystems and MnDOT, through the State of Minnesota, Department of Administration, has issued the Request for Proposal for construction of the Initial Network; and WHEREAS. In accordance with the Agreement, the Radio Board has developed and is administering the evaluation process for the proposals for construction of the Initial Network, and the County has participated in the evaluation process; and WHEREAS, In accordance with Paragraph 25..01 of the Agreement, the County and the Radio Board have therefore determined that it is in their mutual best interests to enter into this Amendment No. 1 to the Agreement in order to update the provisions of the Agreement in anticipation of a recommendation by the Radio Board, Commissioner of Transportation, Metropolitan Council, Hennepin County and the City of Minneapolis to accept a proposal for construction of the Initial Network; and WHEREAS,the parties hereto have agreed to other material provisions to be amended; NOW, THEREFORE, it is hereby agreed that that-certain Agreement, made and entered into on November 5, 1996, and bearing Contract Number A-16906, between the herein-named parties defining the rights and obligations of the County and the Radio Board with respect to the cooperative and coordinated design, procurement, construction, operation and maintenance of a • region-wide 800 MHz digital trunked radio subsystem to be integrated with the First Phase of the region-wide public safety radio communication system is hereby amended in accordance with the provisions set forth below: 1. DEFINITIONS Article III is amended by replacing, and/or adding the following definitions: 3.03 SUBSYSTEMS. "Subsystems" means systems identified in the Plan as • Subsystems interconnected by the First Phase backbone as part of the Initial • Network and/or subsequent phases and operated by local government units or regional agencies for their own internal operations. "Subsystems" includes County/Regional Integiated Subsystems. 3.07 INITIAL NETWORK. "Initial Network" means the portion of the Backbone System to be constructed concurrently by MnDOT, the Metropolitan Council, Hennepin County and the City of Minneapolis. The Initial Network consists of the First Phase plus the Metro Transit Data Subsystem, Hennepin County and Minneapolis Subsystems. 3.14. INITIAL BACKBONE. "Initial Backbone" means the public safety radio communications system authorized by the Minnesota legislature to be funded by the sale of Metropolitan Council general obligation bonds authorized by Minnesota Statute 473.93, Metropolitan Council revenue bonds authorized by Minnesota Statute 473.898, and sale of state general obligations bonds and trunk highway fund appropriations authorized by Laws 1996, Chapter 463, Section 19. 3.15. COUNTY/REGIONAL INTEGRATED SUBSYSTEM. "County/Regional Integrated'Subsystem" means a county/regional shared subsystem which (a) shares First Phase components including sites, base stations, frequencies, antennas, microwave equipment and the prime controller plus additions by an Authorized User; and(b) which uses first phase infrastructures for day-to-day operations in its own county; and (c) is governed by a cooperative agreement between an Authorized User and MnDOT. • 3.16. FIRST PHASE VENDOR. "First Phase Vendor" means the vendor with whom MnDOT contracts to construct the First Phase. 3.17. INITIAL NETWORK VENDOR. "Initial Network Vendor" means the vendor • with whom MnDOT and the City of Minneapolis and/or Hennepin County and/or the Metropolitan Council contracts to construct the Initial Network. 3.18 METRO TRANSIT. "Metro Transit" means a division within the Metropolitan Council which operates a region-wide metropolitan transit system. • 3.19. METRO TRANSIT DATA SUBSYSTEM. "Metro Transit Data Subsystem" means a fully partitioned subsystem of the First Phase funded and constructed by the Metropolitan Council pursuant to a cooperation agreement to be used by Metro Transit to provide automatic vehicle location (AVL) for buses and other transit vehicles as well as a limited number of other users from MnDOT's Highway Helpers Program, Metro Mobility and/or from emergency medical services (EMS) providers, and further to be used by Metro Transit for radio signaling between the mobile radio and the control center, for AVL signaling by exception-based reporting only for Metro Transit buses and for full time AVL reporting for transit support vehicles such as transit police, street supervisors and maintenance vehicles. The data system may further be used for mobile computing and/or mobile data terminal (MDT) text messaging, subject to traffic volumes. 3.20. METROPOLITAN TRANSIT PURPOSES. "Metropolitan Transit Purposes" means a regional public transit system in the Minneapolis-St. Paul metropolitan area system operated by the Metropolitan Council or contracted by the Metropolitan Council for operation and replacement transit service for which a city or town contracts pursuant to Minn. Stat. 4 73.3875, which regional public transit system consists of Metro Transit regular route service, Metro Mobility, patatransit as defined in Minn. Stat. • 473.121, non-Metro Transit regular route service and replacement services under Minn. Stat. 473.3875. 2. Article IX Paragraphs 9.01, 9.02, 9.03, 9.04 are each amended by deleting the last sentence of each Paragraph and substituting therefore the following sentences: The materials, equipment and goods owned by the County are set forth on the Equipment List incorporated herein and attached hereto as Exhibit A. County agrees that those materials, equipment and goods identified in Exhibit A that are to be owned by other parties shall become the property of said parties upon transfer of title to the owner of said materials, equipment and goods by the Initial Network Vendor. 3. Article IX is further amended by deleting the existing Paragraph 9.05 and adding the following new Paragraph 9.05: 9.05 The County and The Radio Board acknowledge that the allocation of ownership in Exhibit A are limited to the radio and microwave communications system infrastructure. Prior to the County being, required to fund, finance, or otherwise pay for its portion of the civil construction and site equipment necessary for the Initial Network, the County and the Radio Board shall mutually agree to the identification of all First Phase and County sites and to the allocation of said civil construction and site equipment costs as well as a detailed equipment list and/or inventory identifying ownership of all civil assets. Said agreement shall be incorporated herein as part of this Agreement. 4. Article XI Paragraph 11.03 is deleted in its entirety and the following Paragraph 11.03 is substituted therefore: 11.03. The County and the Radio Board mutually agree to the allocation of costs to the County for infrastructure equipment, installation costs for County Subsystem equipment, County subscriber equipment and the equipment necessary to interconnect the County Subsystem to the First Phase as is set forth in Exhibit A attached hereto and made a part hereof. The County agrees it is responsible to pay all costs to the Initial Network Vendor pursuant to the County's agreement with such vendor for those materials, equipment, goods and services identified within the equipment lists and cost distribution schedules (Exhibit A) which is attached hereto and made part of this Agreement by this reference. Unless otherwise indicated in exhibit A, the County shall hold title to, and retain ownership of, all materials, equipment and goods which are paid for by the County. The County agrees that those materials, equipment and goods identified in Exhibit A that are to be owned by other parties shall become the property of said parties upon transfer of title to owner of said materials, equipment and goods by the Initial Network Vendor. 5. Article.Xi is amended by adding the following Paragraph 11.06: 11.06 The Radio Board agrees to permit the County to use a reasonable portion of excess microwave system capacity to transport ancillary County data, video, telecommunications, traffic management information, two-way radio or other microwave payloads not directly related to the Backbone System. Such ancillary microwave system use by County shall be subject to the following limitations and conditions: 1. The County shall submit a written request to the Radio Board for each specific proposed ancillary use of unused microwave circuits needed by the County. Such request shall include a circuit route, proposed bandwidth or data rate, intended use and scheduled implementation date. 2. The Radio Board shall deny the County's request if such unused microwave circuits requested by the County are included in a technical design for an expansion of the Backbone System which has been approved by the Radio Board and MnDOT and such expansion is scheduled to occur within the following two years, otherwise the Radio Board shall not unreasonably delay, deny or condition its approval of the County's requested ancillary use of unused capacity. - 4 _ 3. The Radio Board may deny County's request if MnDOT objects to the County's request based on technical compatibility, financial impact, reliability or systemwide performance implication reasons, and the Radio • Board and MnDOT are unable to reach mutual agreement on the County's request. 4. Any microwave circuits allocated by the Radio Board to the County for ancillary uses herein that are not placed into service by the County within two years, or after commencement of use are subsequently vacated by the County for more than six months, shall be relinquished by the County. 5. The County's Subsystem administrator shall coordinate the County's ancillary use of such microwave capacity with MnDOT's network administrator. 6. In the event any microwave capacity used by the County for ancillary uses • is'needed for future additions to the Backbone System, the County shall relinquish the microwave circuits necessary to permit such future Backbone System expansion. The Radio Board agrees it will not unreasonably require the County to relinquish microwave capacity if there are other technical and cost effective methods proposed by the County to provide adequate microwave capacity for such expansion. The Radio Board agrees it will only require such relinquishment by the County if all other Authorized Users have previously or concurrently also been required to relinquish, to the same degree, microwave circuits allocated to them within the effected loop or loops for similar ancillary uses; the Radio Board has provided the County with one (I) year written notice of relinquishment to provide the County adequate time to fund and purchase replacement facilities; and further provided that the Radio Board will not require the County to relinquish ancillary circuit usage sooner than six months prior to installation of the future Backbone System expansion. 7. In no event shall the County's use of the microwave system for the ancillary uses authorized by the Radio Board herein exceed 33.'3% of the initial excess microwave capacity provided in the Initial Network system design, or 20% of the total enhanced microwave capacity of the Backbone System, whichever is lesser. 8. The County shall be solely responsible to pay any and all costs associated with its ancillary uses of the microwave system authorized by the Radio Board herein. 9. Notwithstanding the aforementioned conditions, the County's use of the microwave system for the ancillary governmental purposes provided for _ 5 _ • herein shall be secondary to, and shall not compromise the use, performance or expansion of, the Backbone System 9. Nothing herein shall be construed as to prevent the Radio Board from establishing the terms and conditions for additional allocations of other excess microwave capacity beyond those allocations made to the County herein. 6. Article 15 is amended by deleting the entire Article 15 and substituting therefore the following.: • ARTICLE XV. AWARD OF CONTRACTS AND SUBSYSTEM DESIGN APPROVAL 15.01.. The Radio Board shall concurrently provide the County, City of Minneapolis, Metropolitan Council and MnDOT a contract award recommendation for the Initial Network. The Radio Board's contract award recommendation shall include a recommended Initial Network Vendor and a recommended Initial Network system design, a detailed equipment list identifying ownership of all fixed assets and a detailed plan for allocation of all construction and infrastructure costs for the Initial Network.. The County shall provide a written response to the Radio Board within sixty (60) calendar days of adoption by the Radio Board of its recommended contract award. The County may accept, reject or propose changes to the Radio Board's recommendation. If the County provides no written response to the Radio Board within sixty (60) calendar days, the County shall be considered to have rejected the Radio Board's recommendation. 15.02. In the event the County proposes substantive changes to any part of the Radio Board's contract award recommendation, the Radio Board and the County shall make their best reasonable efforts to reach mutual agreement as expediently as possible. 15.03. If by the end of business day December 31, 1998, the County and the Radio Board are unable to agree on the Radio Board's contract award recommendation and MnDOT has entered into a contract with the recommended Initial Network Vendor for construction of the First Phase, OR the County has not executed a contract with the recommended Initial Network Vendor consistent with the Radio Board's recommendation by the end of business day December 31, 1998, and MnDOT has entered into a contract with the Initial Network Vendor for the construction of the First Phase, the Radio Board and MnDOT may delete the County Subsystem from the Initial Network and proceed with construction of the Initial Network without the County Subsystem. Such deletion of the County Subsystem from the Initial Network shall require mutual agreement by the Radio Board and MnDOT. _ 6 _ 15.04. County acceptance of the Radio Board's recommended technical design included in the Radio Board's contract award recommendation made to the County shall constitute the Radio Board's approval of.the technical design of the County Subsystem. 7, Article XVI Paragraph 16.02 is amended by adding the following sentence prior to the existing sentence: • The final Detailed Design Document for the Initial Network produced by the Initial Vendor and agreed to by the County is subject to review and approval by the Radio Board before the County may implement the final design of its . subsystem component of the Initial Network in accordance with the terms of its contract with the Initial Network Vendor. 8. Article XVI Paragraph 16.02 is further amended by adding the following sentence to the end of the paragraph:: The administrative change order procedures for changes to the design of the County Subsystem as included in the contract between the County and the Initial Network Vendor as supplemented by the detailed design review during the construction phase shall provide that all change orders (regardless of dollar amount) which make substantive changes to the Initial Network design as included in the contract between the County and the Initial Network Vendor and supplemented by the detailed design review must be submitted to the Radio Board for review and approval before the County may implement such change order. 9. The existing Exhibits A, B, C and D attached to and made a part of the Agreement are deleted and the Exhibit A attached to this Amendment No. 1 is substituted therefore. 10. Except as hereinabove amended, the terms, conditions and provisions of said Contract No. A-16906, dated November 6, 1996, shall remain in full.force and effect. This Amendment No. 1 shall take effect upon execution by both parties hereto, and shall remain in effect until such time as either the First Phase or the County Subsystem is either removed from service, or is substantially replaced, at the end of its useful life, or this Amendment No. 1 is terminated or canceled pursuant to Article 6 of this Agreement, whichever occurs first. The remainder of this page is intentionally left blank COUNTY BOARD APPROVAL The Radio Board, having sig.ned this Amendment No. 1, and the HenneL i a CountyBoard of Commissions iavine'duly approved this Amendment No. 1 on the (7 —d r of , 19 .2_, and pursuant to such approval; the property County officials having. signed this Amendment No. 1, the parties hereto agree to be bound by the provisions herein set forth. Approved as to Form. COUNTY OF HENNEPIN STATE OF MINNESOTA By: 0,-^- ...,`a: " .troi*Sal Assista out tomey Chair of Its County Board i/1 ? l#1 Dat : /(� 72 9r 1 And: 9, A i t. r eputy/ County Administrator Approved as to Execution. ATTEST: ,(A, D ,�41,t D eputy/Clerk of County Board Assistant _ uorney Date: /J (Z/'? METROPOLITAN RADIO BOARD Approved as to Foiiii and Execution. /2 ei< f / fB : `C, �� Legal Counsel Chairman of the Board (7/� Date: Date: lQ/2-4,r - 8 - EXHIBIT A The Exhibit A. Equipment List and Cost Distribution Schedules, are on filed in the Offices of the Metropolitan Radio Board. c/o John McGouah, Mears Park Centre. 230 East 5th Street. St. Paul, MN 55101 and the Hennepin County Sheriffs Office, c/o Radio Communications Manager, 9300 Naper Street, Golden Valley, MN 55427. CITY COUNCIL AGENDA DATE: June 5, 2007 SECTION: Public Hearings DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: IX.A. Community Life Church Development/Planning Janet Jeremiah Regina Herron Requested Action Move to: • Close the Public Hearing; and • Adopt the Resolution for Planned Unit Development Concept Review on 7.96 acres; and • Approve 1st Reading of the Ordinance for Planned Unit Development District Review with waivers, and Zoning District Amendment within the Public zoning district on 7.96 acres; and • Direct Staff to prepare a Development Agreement incorporating Staff and Commission recommendations and Council conditions. Synopsis The proposed plan shows an 8,412 square foot addition to an existing 21,000 square foot church. The applicant is requesting an exterior materials waiver from the 75% face brick, glass, and stone requirement to allow the existing wood to be replaced with a material called hardiboard. Background The church requested the use of hardiboard to be applied as a panel, (Option A) The Planning Commission and staff recommended the use of hardiboard to be applied to the wall as lap siding (Option B) in order to be consistent with the wood character of the existing building. The 120-Day Review Period Expires August 28, 2007 Planning Commission Recommendation The Planning Commission voted 5-0 with one abstention to recommend approval of the project, at the May 14, 2007 meeting. Attachments 1. Resolution 2. Staff Report 3. Location Map 4. Land Use &Zoning Maps 5. Planning Commission Minutes-unapproved LIFE CHURCH CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO. 2007- A RESOLUTION APPROVING THE PLANNED UNIT DEVELOPMENT CONCEPT OF LIFE CHURCH FOR LIFE CHURCH OF EDEN PRAIRIE WHEREAS,the City of Eden Prairie has by virtue of City Code provided for the Planned Unit Development (PUD) Concept of certain areas located within the City; and WHEREAS, the Planning Commission did conduct a public hearing on May 14, 2007, on Life Church by Life Church of Eden Prairie and considered their request for approval of the PUD Concept plan and recommended approval of the request to the City Council; and WHEREAS,the City Council did consider the request on June 5, 2007. NOW, THEREFORE, BE IT RESOLVED by the City Council of Eden Prairie, Minnesota, as follows: 1. Life Church, being in Hennepin County, Minnesota, legally described as outlined in Exhibit A, is attached hereto and made a part hereof. 2. That the City Council does grant PUD Concept approval as outlined in the plans stamp dated May 24, 2007. 3. That the PUD Concept meets the recommendations of the Planning Commission May 14, 2007. ADOPTED by the City Council of the City of Eden Prairie this 5th day of June, 2007. Phil Young, Mayor ATTEST: Kathleen A. Porta, City Clerk EXHIBIT A PUD Concept- (Life Church) Legal Description: Lot 1, Block 1 Edenvale 2"d Addition AND That part of Lots 31 and 32,Auditor's Subdivision Number 225,Hennepin County,Minnesota, which lies northwesterly of the northwesterly right-of-way line of the 100 foot highway easement as described in Document No. 472547 and lying southwesterly of the southwesterly right-of-way line of the 50-foot highway easement as described in said Document No.4725427. STAFF REPORT TO: Planning Commission FROM: Regina Herron, Planner II DATE: May 11, 2007 PROJECT: Life Church LOCATION: 14100 Valley View Road APPLICANT/ OWNER Life Church of Eden Prairie 120 DAY REVIEW: Expires August 28, 2007 REQUEST: • Planned Unit Development Concept Review on 7.96 acres • Planned Unit Development District Review on 7.96 acres • Zoning District Amendment within the Public Zoning District on 7.96 acres • Site Plan Review on 7.96 acres Staff Report—Life Church May 11, 2007 Page 2 BACKGROUND The Comprehensive Guide Plan shows the 7.96 acre property for Church/Cemetery land use. Surrounding land uses consist of Low Density Residential, Medium Density Residential, and Office. The property is zoned Public. The church was approved in 1984. The church received approval for a parking lot expansion in 1990. SITE PLAN The proposed plan shows an 8,412 square foot addition to an existing 21,000 square foot church. City code does not limit the size of building coverage in the public zoning district. The proposed addition meets setback and parking requirements. LANDSCAPING AND TREE REPLACEMENT There are 1284 diameter inches of significant trees on the property. A total of 32 diameter inches of significant trees will be lost due to the development. Tree replacement is 1.06 caliper inches. The landscaping requirement is 26.3 caliper inches based on the building size. Tree replacement and landscaping provided is 12.5 inches. This leaves a balance of 13.8 additional caliper inches of trees required. GRADING AND DRAINAGE Rooftop drainage for the addition will be directed towards grass swales for infiltration. ARCHITECTURE The proposed addition is 15.25 feet tall at the at the roof peak. The following waiver is requested through the Planned Unit Development: 1. Percentage of exterior materials from 75% face brick, glass, or natural stone to 26.8% for the existing building and the addition. The proposed addition conforms to the City code requirement for exterior building materials. The existing church does not conform to exterior material requirements. A variance for 80% wood as an exterior material was granted in 1984. The church wants to replace the existing wood finish with hardiboard on the existing building. Staff supports the replacement of the existing wood with hardiboard, wood, or vinyl. Staff Report—Life Church May 11, 2007 Page 3 SITE LIGHTING Parking lot lighting is downcast-cutoff fixtures on 20-foot poles. STAFF RECOMMENDATIONS Recommend approval of the following request: • Planned Unit Development Concept Review on 7.96 acres • Planned Unit Development District Review on 7.96 acres • Zoning District Amendment within the Public Zoning District on 7.96 acres • Site Plan Review on 7.96 acres This is based on plans stamp dated April 30, 2007, and the following conditions: 1. Prior to City Council Review, the proponent shall: A. Revise the landscape plan to provide an additional 13.8 caliper inches. 2. Prior to grading permit issuance, the proponent shall: A. Submit detailed storm water runoff,utility, and erosion control plans for review and approval by the City Engineer and Watershed District. B. Notify the City and Watershed District 48 hours in advance of grading. C. Install erosion control at the grading limits. 3. Prior to building permit issuance for the property, the proponent shall: A. Provide a landscaping surety equivalent to 150% of the cost of the landscaping/tree replacement plan for 27.9 caliper inches. B. Review the plans with the Fire Marshal 4. The following waiver is granted through the PUD for the project: A. Percentage of exterior materials from 75% face brick, glass, or natural stone to 26.8% Area Location Map - Life Church Address: 14100 Valley View Road . . r'' a\-,-" "' ,„ ,c\\, -- •-• r , --;',..,(- ,_\___,: -------- --,-,;- , i-niit,11.--_],J �- j __< r .., ' , • ,,,-,a:\ ,-''. ,i>,,'' ,/ -----\\ Golf View Drive f— J ;\ , , ' ' , ,---, •\''',,,,- L.I. -1..7 _,-- I Prairie View iC� _ / alk ___,_} - °lit- --- - -- :., i St. Andrew Drive , <, ,,,,, % \__ ' .... ,,___...-- ' „-- '. , . ( C- -------..._ -.'.----. '' ''''. '/ . ' �/ SIT: , \� �'\ Baker Road "J Valley View Road `: �r l/ ‘---.,..•:..,.,____,_ . ,.. , / ,../ / , ./..„.„....4 , ,-/,-- •-ter / � � i� � �.�`, 5 ' ...___------- / '• 1 i Jam' � � -__ �, E -_-_- / JLLIIRoad] i Zoning Map Life Church 14100 Valley View Road, Eden Prairie, Minnesota 41111 ! 11114pr 1 6 461,11 0, � FI mm 4,4,10 tooPrairie View e * ■ i 1iI Golf View Drive111111 St. Andrew Drive u r r r 1 !., IIPTIP Ei \ J _2 4 I� Tig -�r II =11� A VI -,.‘" --"-------"-2 1 SITE Baker Road Valley View Road / OM 0 I I I i f H J 1 1 -- ` Mitchell Road 1 • \ i f , I Landuse022107 in Highway Commercial Shoreland Management Classifications N I Rural One Family-10 acre min. I=Regional Service Commercial =I Natural Environment Waters 1 R1-44 One Family-44,00D sf.min. -Regional Commercial =I Recreational Development Waters I R1-22 One Family-22,000 sf min. I I Industrial Park-2Acre Min, GD General Development Waters(Creeks Only) r f I„ tl I R1-13.5 One Family-13,500 sf min. ®Industrial Park-5Acre Min. ® 100- Year Floodplain Ii RI-9-5 One Family-9,500 sf min. -General Industrial-5 Acre Min. Highway#312 West of County Road#4 is proposed and under construction at this L E N 1 RM-6.5 Multi-Family-6.7 U.P.A.max. I I Public lime. I.RM-2.5 Multi-Family-17.4 U.P.A.max. Updated through Ordinance#lon)app07 roved, Y I 1 Golf Course Ordinance#33-2001 WI Addition)approved,but not shown on this map edition I Office I 1 Water Date:March 1,2007 UVE-WORK•OBEAla I Neighborhood Commercial I I Right-of-Way ckterea ,oneralerc*9"teetheaaa,ue and amclae kg,d zn'4o on Re v'Eden Pre.e Sly canna want. _,I Community Commercial I I Chanhassen City limits Guide Plan Map Life Church 14100 Valley View Road, Eden Prairie, Minnesota CHJ l . Prairie View , ` • , W fN1 i i / % Golf View Drive _ � Y St. Andrew Drive - *AS N AtAdte•/*1 : 411i Baker Road Valley View Road Nik 14 Mitchell Road . . "1 —• IF- 1 /f�� f„ il - ; 1_, \ �j ' \ igim __, • , , ?! nl it LandUse022107 I I Neighborhood Commercial —Metropolitan Urban Service Line(MUSA) DATE Approved 03.19.03 I I Low Density Residential 0-2.5 Units/Acre I 1 Community Commercial Creeks DATE Revised 01-07-65 —Principal Arterial DATE Revised 14.07.0 ®Low Density/Public/Open Space I®Regional Commercial p DATE Reused 02-23.06 —A Minor Arterial DATE Revised 06.23 06 I I Medium Density residential 2-5-10 Units/Acre ME Park/Open Space DATE Reused 12-06-06 — I-1 Medium Density Residential/Office I I Public/Quasi-Public a Minor Arterial DATE Revised 0301 07 -Major Collector 1-...:9 High Density Residential 10-40 Units/Acre 1 I Golf Course —Minor Collector \`\ I I Office =Church/Cemetery SPI 74 Office/Industrial I I Open Water EDEN ®Office/Public/Open Space I I Right-Of-Way N PRAIRIE =Industrial I I Parcels Planning Commission Minutes May 14, 2007 G. LIFE CHURCH— 14100 Valley View Road Request for: Planned Unit Development Concept Review on 7.96 acres, Planned Unit Development District Review on 7.96 acres, Zoning District Amendment within the Public Zoning District on 7.96 acres, Site Plan Review on 7.96 acres Nicole Thompson, Station 19 Architects presented the request. She stated Life Church would like to put an 8,000 square foot two story to the existing building. They would be adding on to the Administration suite, adding a nursery as well as men's and women's accessible restrooms and lower level classrooms. With these additions we will still be meeting the parking requirements. The addition would meet the 75%brick and glass zoning code and the existing building, which is currently wood, would be resurfaced with a hardy board material. They would also be remodeling the fellowship hall, the sanctuary and reworking the entry points with curb cuts and landscaping and new trash enclosures. Stoelting asked Franzen to review the staff report. Franzen stated but for the exterior material on the existing building the project is conforming. They have three options: 1) tear off the current wood siding, replace it with wood; 2)use the hardy plank material; or 3) use vinyl or metal siding. Stoelting opened the meeting up for public input. Dale Sisam, Senior Pastor of Life Church, lives in Chaska, has served in Eden Prairie 10 years. He stated his appreciation to the Commission for considering the request for their addition. Stoltz asked to see a sample of the material they wanted to use on the exterior of the building. Powell stated Habitat for Humanity uses the material described on their homes. It is good and sturdy. Kirk stated it was a reasonable approach, since a variance was granted for wood previously, they are improving the wood siding and have plans to improve the entire building at a later date to conform to the 75%brick and glass the zoning code requires. MOTION by Seymour, seconded by Stoltz, to close the public hearing. Motion carried 5-0,Powell abstained. MOTION by Seymour seconded by Kirk to recommend approval of the Planned Unit Development Concept Review on 7.96 acres; Planned Unit Development District Review on 7.96 acres; Zoning District Amendment within the Public Zoning District on 7.96 acres; Site Plan Review on 7.96 acres based on plans stamped dated April 30, 2007, and the staff report dated May 11, 2007. Motion carried 5-0, Powell abstained. CITY COUNCIL AGENDA DATE: June 5, 2007 SECTION: Public Hearings DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: IX.B. Community Lariat Center-Applebees Development/Planning Janet Jeremiah Michael Franzen Requested Action Move to: • Close the Public Hearing; and • Adopt the Resolution for Planned Unit Development Concept Review on 5.85 acres; and • Approve 1st Reading of the Ordinance for Planned Unit Development District Review with waivers, and Zoning District Amendment in the Commercial Service District on 5.8 acres; and • Direct Staff to prepare a Development Agreement incorporating Staff and Commission recommendations and Council conditions. Synopsis Lariat Companies wants to change the exterior of both buildings. There are four architectural changes including; roof line, exterior materials, sign location, and adding flags The building meets the code requirement for 75% face brick, glass, or natural stone. Background Information The 120-Day Review Period Expires on August 15, 2007. Planning Commission Recommendation The Planning Commission voted 5-0 to recommend approval of the project at the May 22, 2007 meeting. Attachments 1. Resolution 2. Staff Report 3. Location Map 4. Land Use &Zoning Maps LARIAT CENTER—APPLEBEE'S CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO. 2007- A RESOLUTION APPROVING THE PLANNED UNIT DEVELOPMENT CONCEPT OF LARIAT CENTER—APPLEBEE'S FOR LARIAT COMPANIES WHEREAS,the City of Eden Prairie has by virtue of City Code provided for the Planned Unit Development (PUD) Concept of certain areas located within the City; and WHEREAS, the Planning Commission did conduct a public hearing on May 22, 2007, for Lariat Center-Applebees for Lariat Companies and considered their request for approval of the PUD Concept plan and recommended approval of the request to the City Council; and WHEREAS,the City Council did consider the request on June 5, 2007. NOW, THEREFORE, BE IT RESOLVED by the City Council of Eden Prairie, Minnesota, as follows: 1. Lariat Center-Applebee's, being in Hennepin County, Minnesota, legally described as outlined in Exhibit A, is attached hereto and made a part hereof. 2. That the City Council does grant PUD Concept approval as outlined in the plans stamp dated June 5, 2007. 3. That the PUD Concept meets the recommendations of the Planning Commission on May 22, 2007. ADOPTED by the City Council of the City of Eden Prairie this 5th day of June, 2007. Phil Young, Mayor ATTEST: Kathleen A. Porta, City Clerk EXHIBIT A PUD Concept- (Lariat Center — Applebees) Legal Description: Lot 1 and 2, Block 1, Flaherty 1st Addition STAFF REPORT TO: Planning Commission FROM: Michael D. Franzen, City Planner DATE: May 18, 2007 PROJECT: Lariat Center-Applebee's LOCATION: Joiner Way and Prairie Center APPLICANT/ OWNER: Lariat Companies, Inc. 120 DAY REVIEW: Expires August 15, 2007 REQUEST: 1. Planned Unit Development Concept Review on 5.85 acres. 2. Planned Unit Development District Review on 5.85 acres. 3. Zoning District Amendment in the Commercial Regional Service District on 5.85 acres 4. Site Plan Review on 5.85acres BACKGROUND The site is currently guided Regional Commercial. The site is zoned Commercial Regional Service. The 1988 approved plan is 40,000 square feet of retail uses in two buildings. MCA PLAN The site is located in Subarea 5 of The Major Center Area Study. Subarea 5 is located east of Highway 212 and south of Prairie Center Drive. The current uses within Subarea 5 include retail, civic, medical and residential uses with no forecasted significant increases in density or intensity. The MCA land use plan shows this site for Community Retail. The current use for the site is retail. The proposal is for an architectural remodel only and no additional square footage is proposed. ARCHITECTURE REVISIONS Lariat Companies wants to change the exterior of both buildings. There are four architectural changes: Staff Report—Lariat Center -Applebee's May 18, 2007 Page 2 1. Change in roof line. 2. Change in exterior materials. 3. Change in sign location. 4. Adding flags The building meets the code requirement for 75% face brick, glass, or natural stone. SIGNS The proposed signs are located below the top of the parapet wall and are not considered a roof sign by code. The code allows 3 flags per lot up to 65 feet tall and not exceeding 100 square feet. The plan shows 5 flags on one lot and 3 on the other lot. The plan needs to be revised to meet code. SITE PLAN REVISIONS The plan shows the removal of planting islands to provide more parking. This would be a zero lot line waiver to parking. SITE PLAN AND ARCHITECTURAL DESIGN REVIEW According to code a site plan and architectural design is evaluated by a set of criteria. Since the project is mostly an architectural change the plan should be evaluated based on compatibility of materials, colors, textures and construction details with other structures and uses in the area. The plan as proposed meets these criteria. STAFF RECOMMENDATIONS Recommend approval of the following request: • Planned Unit Development Concept Review on 5.85 acres. • Planned Unit Development District Review on 5.85 acres. • Zoning District Amendment in the Commercial Regional Service District on 5.85 acres • Site Plan Review on 5.85acres This is based on plans dated May 18, 2007, and the following conditions: 1. Prior to building permit issuance for the property, the proponent shall: A. Review the plans with the Fire Marshal B. Submit building materials and colors for review and approval. 2. The following waivers are granted through the PUD for the project: A. Zero lot line setback to parking. Area Location Map - Lariat Center Address : 8421 and 8445 Joiner Way ! / , Joiner Way �, is Flying Cloud Dr. Prairie Center Dr. ,--/ * / , lip Franlo Rd . Iiiiir er Medcom Blvd . .......__ " � Zoning Map Lariat Center--Applebee's 8421 & 8445 Joiner Way, Eden Prairie, Minnesota 1- ; • • 1 7 ‘, :///N I "--, , • • I ....aim. •...A.do'. Joiner Way Prairie Center Drive Flying Cloud Drive SITE Franlo Road 1 1 1 I CO Medcom Blvd. l \\ —Th...i i 1 I / A _Ail =mai • gi Landuse022107 IM Highway Commercial Shoreland Management Classifications N Rural One Family-10 acre min. -Regional Service Commercial I NE I Natural Environment Waters R1-44 One Family-44,000 sf,min. -Regional Commercial I Rfl1 Recreational Development Waters Ri-22 One Family-22.0d0 sf min. I Industrial Park-2 Acre Min, L=I General Development Waters(Creeks Only) '7 0. I,,''. 1I R1-13.5 One Family-13.500 sf min. Industrial Park- 5 Acre Min. EZa 100- Year Ftoodplain ''■wu■' R1-9.5 One Family-9,500 sf min- -General Industrial-5 Acre Min. Highway(1312 West of County Read#4 is proposed and under construction at this E D E , ■ RM-6.5 Multi-Family-6.7 U.P.A.max. J Public time. mg RM.2.5 Multi-Family-17.4 U.P.A.max- Up dated through Ordinance#10-2007 PRAT RI E Y GolfCourse Ordinance#33-2001(SFi Addition}approved,but not shown an Ibis map eddies Office I Water Date:March 1,2007 I.R'E•P1>}Bx•Oaf AM _ Neighborhood Commercial I Right-of-Way i.,r oe«,EtrnrEt:=,l,z_o-..,,,cla„rn•.nonna xoe,rnay.xr:o 1 CommunityCommercial City - -��'°�'"°�i�'a,on c•:�eav� c4r un«.m r.a.,r. I Chanhassenlimits -��� Guide Plan Map Lariat Center-Applebee's 8421 & 8445 Joiner Way, Eden Prairie, Minnesota _�.�y. . 7 (r 1---- - . . -- — r ,.. ' .,411114r ' / r j Flying Cloud Drive -N s� Prairie Center Drive • _., ., ,, .._ _.. , , . . . Sin ( T1 1 \J_ \ Medcorn Blvd. .. - .- r)IIIIPP".— \ i E wA ' HHrI1 4., LandUse022107 I I Neighborhood Commercial —Metropolitan Urban Service Line(MUSA) DATE Approved 03-1 B-03 I Low Density Residential 0-2.5 Units/Acre I I Community Commercial Creeks DATE Revised01-07-05 —Principal Arterial DATE Revised 11-07-05 �1 Low Density/Public/Open Space MN Regional Commercial p DATE Revised02-23-06 DATE Revised 03-23-06 I I Medium Density residential 2.5-10 Units/Acre E1 Park/Open Space AMinorArterial DATERevsed06-23-066 I—I Medium Density Residential/Office [ 1 Public/Quasi-Public "�B Minor Arterial DATE Revised 03-01-07 Major Collector ®High Density Residential 10-40 Units/Acre I I Golf Course —Minor Collector \`\ I I Office ®Church/Cemetery ®Office/Industrial I ..1 Open Water EDEN Office/Public/Open Space L I Right-Of-Way NJ PRAIRIE =Industrial F I Parcels CITY COUNCIL AGENDA DATE: SECTION: Public Hearing June 5, 2007 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: IX.C. Denise Christensen Vacation 07-03 Vacation of the Public Right-of-Way Public Works/Engineering Easement and Slope Easement over Part of Eden Road Requested Action Move to: Close the Public Hearing. Synopsis The Property Owner has requested the vacation of the public right-of-way easement and slope easement to facilitate the proposed Windsor Plaza development plan. Prior to adopting the resolution vacating the portion of Eden Road right-of-way identified, a satisfactory determination regarding the relocation of existing private utilities within the vacated area is required. The Developer of Windsor Plaza will be responsible for this. The Resolution for this Vacation will be presented for approval at a future Council meeting. Background Information The requested vacation will remove the underlying encumbrance consisting of the right-of-way easement and slope easement for a portion of Eden Road to accommodate the Windsor Plaza development project. The Windsor Plaza project consists of a mixed use office, retail and restaurant uses. The project will provide cross-access to the existing uses that will continue to take access from Eden Road. Attachments • Location Map • Site Plan • Published Notice • Notification List ! Z. a'k & L• €) Z 4 Q N.D ) qt. 4.... 0 OR' a PLAZA �'1/ , . / / c DR. (111 312 i ,,,,,, ` 5 - TECHNOLOGY DR. "0" .,,....„ vva; , 9i� LEONA ffD. "'F� SITE J Z 5 O � 400On W o 7 8th �? G`ETREE o &v SIN I. O 23 2 o \\ REGoki o _ AL CENTER ♦ EDCENENTPERRAIRIE . N, 5AAR 4 ilikk . 7. ry-rzrTLEMO°� D R. ��� (1& At F.� 0. HILL P D PRAIRIE V E 67. A_/1 .\(' i'/ \MEpCnAA ��97 ",- 68. 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PARCEL 2 That part of Eden Road(formerly Town Road as shown on the plat of Auditor's Subdivision Number 335), in the NE1/4 Section 14-T116-R22, Hennepin County, Minnesota, lying southerly of the following described line: Commencing at the intersection of the south line of Tract C, Registered Land Survey No. 687,Files of the Registrar of Titles, County of Hennepin, Minnesota and the west line of the East 33 feet of said Tract C; thence on an assumed bearing of North along said west line, a distance of 56.38 feet to the actual point of beginning of the line to be described; thence deflecting to the right(as measured from north to east) 88 degrees 59 minutes 00 seconds a distance of 66.01 feet to a point on the easterly right of way line of said Eden Road and said line there terminating. PARCEL 3 That part of Eden Road(formerly Town Road as shown on Registered Land Survey No. 687), in Tracts C and D, Registered Land Survey No. 687, Files of the Registrar of Titles, County of Hennepin,Minnesota, lying southerly of the following described line: Commencing at the intersection of the south line of said Tract C and the west line of the East 33 feet of said Tract C; thence on an assumed bearing of North along said west line, a distance of 56.38 feet to the actual point of beginning of the line to be described; thence deflecting to the right(as measured from north to east) 88 degrees 59 minutes 00 seconds a distance of 66.01 feet to a point on the easterly right of way line of said Eden Road and said line there terminating. PARCEL 4 per Document No. 1176093 That part of Eden Road, formerly known as Town Road,being that part Tract D, Registered Land Survey No. 687, Files of Registrar of Titles, County of Hennepin, Minnesota,which lies southeasterly of a line run parallel with and distant 33 feet northwesterly of Line 1 described below: Line 1. From a point on the east and west quarter line of Section 14, Township 116 North, Range 22 West, distant 2557.59 feet west of the east quarter corner thereof,run southwesterly at an angle of 45 degrees 57 minutes 00 seconds from said east and west quarter line (measured from west to south) for 192.54 feet to the point of beginning of Line 1 to be described; thence deflect to the right at an angle of 87 degrees 05 minutes 48 seconds for 80.50 feet; thence deflect to the right on a tangential curve having a radius of 60 feet and a delta angle of 91 degrees 30 minutes 00 seconds for 95.82 feet; thence on tangent to said curve for 74.79 feet; thence deflect to the left on a tangential curve having a radius of 125 feet and a delta angle of 39 degrees 13 minutes 19 seconds for 85.57 feet; thence on tangent to said curve for 58.41 feet and there terminating; together with a permanent slope easement in the lands described as follows: A strip being that part of said Tract D hereinbefore described adjoining and northwesterly of the above described strip which lies southeasterly of a line run parallel with and distant 40 feet northwesterly of Line 1 described above; Together with a strip being that part of said Tract D hereinbefore described adjoining and northwesterly of the last above described strip which lies southeasterly of the following described line: From a point on Line 1 described above, distant 100 feet southerly of its point of termination,run northwesterly at right angles to said Line 1 for 40 feet to the point of beginning of the line to be described; thence run southwesterly to a point, distant 70 feet northwesterly(measured at right angles) of a point on said Line 1, distant 200 feet southwesterly of its point of termination;thence run southerly parallel with Line 1 for 60 feet (measure along said Line 1) and there terminating; By Order of the City Council Published in the Sun Current on May 17, 2007 NOTIFICATION LIST VACATION REQUEST 07-03 A copy of the Public Hearing Notice is to be sent to owners of the following parcels: 14-116-22-13-0023 14-116-22-24-0005 14-116-22-24-0006 A copy of the Public Hearing Notice is to be sent to the following Utilities: CenterPoint Energy Comcast Qwest Communications Xcel Energy CITY COUNCIL AGENDA DATE: SECTION: Payment of Claims June 5, 2007 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: X. Sue Kotchevar, Office of the Payment of Claims City Manager/Finance Requested Action Move to: Approve the Payment of Claims as submitted(roll call vote) Synopsis Checks 163553 - 164276 Wire Transfers 2691- 2699 City of Eden Prairie Council Check Summary 6/5/2007 Division Amount Division Amount General 29,110 701 Water Fund 209,270 100 City Manager 190 702 Sewer Fund 241,251 101 Legislative 8,160 703 Storm Drainage Fund 38,034 102 Legal Counsel 32,349 802 494 Commuter Services 32,639 104 Contingency 16,537 803 Escrow Fund 10,084 110 City Clerk 923 806 SAC Agency Fund 15,075 111 Customer Service 14,683 807 Benefits Fund 449,167 112 Human Resources 5 809 Investment Fund 5,574 113 Communication Services 19,816 810 Workers Comp Insurance 434 114 Benefits&Training 5,243 811 Property Insurance 108 116 Facilities 128,016 117 City Center 109,422 Report Totals 2,541,673 130 Assessing 6,900 131 Finance 6,798 132 Social Services 20,393 133 Planning 63,306 135 Information Technology 67,996 136 Public Safety Communications 5,857 137 Economic Development 200 138 Community Development Admin. 27 150 Park Administration 4,792 151 Park Maintenance 19,165 153 Organized Athletics 6,532 154 Community Center 6,874 155 Beaches 383 156 Youth Programs 218 157 Special Events 864 158 Adult Recreation 3,292 160 Therapeutic Recreation 254 162 Arts 3,058 163 Outdoor Center 1,912 180 Police 24,747 183 Emergency Preparedness 66 184 Fire 13,930 185 Animal Control 85 186 Inspections 392 200 Engineering 2,162 201 Street Maintenance 14,371 202 Street Lighting 2,782 203 Fleet Services 49,453 204 Equipment Revolving 172,633 300 Heritage Preservation Grants 3,120 301 CDBG 930 303 Cemetary Operation 9 309 DWI Forfeiture 2,496 316 WAFTA 27 502 Park Development 19,875 503 Utility Improvement 4,810 506 Improvment Bonds 1996 8,078 509 CIP Fund 41,989 511 Construction Fund 42,762 512 CIP Trails 586 515 Fire Station#4 6,728 519 Community Center Referendum 20,061 520 Parks Referendum 299 521 Trails Referendum 10,176 522 Improvement Projects 2006 7,762 601 Prairie Village Liquor 132,853 602 Den Road Liquor 219,191 603 Prairie View Liquor 141,418 605 Den Road Building 12,974 City of Eden Prairie Council Check Register 6/5/2007 Check# Amount Vendor/Explanation Account Description Business Unit 2691 12,063 ICMA RETIREMENT TRUST-457 Deferred Compensation General Fund 2692 15,778 ORCHARD TRUST CO AS TRUSTEE/CU Deferred Compensation General Fund 2693 97,546 PUBLIC EMPLOYEES RETIREMENT AS PERA Health and Benefits 2694 27,279 MINNESOTA DEPT OF REVENUE State Taxes Withheld Health and Benefits 2697 141,792 WELLS FARGO MINNESOTA N A SS&Medicare Health and Benefits 2698 27,711 MINNESOTA DEPT OF REVENUE State Taxes Withheld Health and Benefits 2699 144,476 WELLS FARGO MINNESOTA N A SS&Medicare Health and Benefits 163553 93 CARLSON-BANCROFT,SALLY General 494 Corridor Commission 163554 62 COMCAST General 494 Corridor Commission 163555 235 DIERCKS,KATE General 494 Corridor Commission 163556 1,842 FEDEX KINKO'S OFFICE AND PRINT General 494 Corridor Commission 163557 542 INDEPENDENT SCHOOL DISTRICT NO General 494 Corridor Commission 163558 72 LEAGUE MN CITIES INS TRUST General 494 Corridor Commission 163559 189 MADISON,MELISSA General 494 Corridor Commission 163560 10,000 MESSERLI&KRAMER General 494 Corridor Commission 163561 17,912 MINNEAPOLIS DOWNTOWN COUNCIL General 494 Corridor Commission 163562 513 SOLUTION BUILDERS General 494 Corridor Commission 163563 25 SOUTHWEST TRANSIT General 494 Corridor Commission 163564 133 VERIZON WIRELESS General 494 Corridor Commission 163565 1,022 WELLS FARGO BANK General 494 Corridor Commission 163566 170 A MEYER'S ENTERPRISES INC Instructor Service Outdoor Center 163567 965 A-SCAPE INC Contract Svcs-Snow Removal Fire Station#3 163568 4,810 ADVANCED ENGINEERING&ENVIRON Design&Engineering Utility Improvement Fund 163569 778 AIR LIQUIDE INDUSTRIAL U.S.LP Treatment Chemicals Water Treatment Plant 163570 4,234 ALBECK GERKEN INC Design&Engineering Construction Fund 163571 277 AMERIPRIDE LINEN&APPAREL SER Repair&Maint.Supplies Prairie Village Liquor Store 163572 555 ANCHOR PAPER COMPANY Office Supplies General 163573 1,988 ARCH WIRELESS Pager&Cell Phone Wireless Communication 163574 233 ASPEN WASTE SYSTEMS INC. Waste Disposal Den Road Liquor Store 163575 1,750 BAKER ASSOCIATES INC Other Contracted Services Communication Services 163576 126 BAUER BUILT TIRE AND BATTERY Tires Fleet Services 163577 300 BEAUBIEN,ELAINE ESTERVIG Special Event Fees Red Hat 163578 6,034 BELLBOY CORPORATION Operating Supplies Den Road Liquor Store 163579 68 BERTELSON OFFICE PLUS Office Supplies Utility Operations-General 163580 100 BEST,MIKE Other Contracted Services Assessing 163581 50 BOLD,PAULINE Instructor Service Outdoor Center 163582 187 BOYER,STACY Tuition Reimbursement/School Police 163583 66 BRO-TEX INC Equipment Parts Fleet Services 163584 571 BUNCH,DENISE H Other Contracted Services Fitness Classes 163585 160 CAMPOS,LORI Instructor Service Outdoor Center 163586 2,022 CATCO PARTS SERVICE Equipment Parts Fleet Services 163587 8,416 CENTERPOINT ENERGY Gas Fire Station#1 163588 39,411 CENTERPOINT ENERGY SERVICES IN Gas City Hall-CAM 163589 529 CHEMSEARCH Equipment Parts Fleet Services 163590 90 CINGULAR WIRELESS Pager&Cell Phone Water System Maintenance 163591 418 CLAREYS INC Safety Supplies Fleet Services 163592 7,000 COMMUNITY TECHNOLOGY ADVISORS Miscellaneous Information Technology 163593 6,875 CORNERSTONE Other Contracted Services Housing and Community Service 163595 1,895 CORPORATE EXPRESS Office Supplies General 163596 53 COSTCO Operating Supplies Fire 163597 447 COSTCO Office Supplies Police 163598 250 CREATURE ENCOUNTERS INC Other Contracted Services Outdoor Center 163599 77 CUB FOODS EDEN PRAIRIE Operating Supplies Police 163600 11,735 CUTLER-MAGNER COMPANY Treatment Chemicals Water Treatment Plant 163601 268 DALE GREEN COMPANY,THE Landscape Materials/Supp Street Maintenance 163602 11,238 DAY DISTRIBUTING Beer Prairie View Liquor Store 163603 1,707 DECORATIVE DESIGNS INC Contract Svcs-hit.Landscape City Center Operations 163604 24,505 DIVERSE BUILDING MAINTENANCE Cleaning Supplies-Garden Roo City Hall-CAM 163605 100 DUOOS,BRIAN Other Contracted Services Assessing 163606 3,674 EAGLE WINE COMPANY Wine Imported Prairie Village Liquor Store 163607 164 EARL F ANDERSEN INC Signs Traffic Signs Check# Amount Vendor/Explanation Account Description Business Unit 163608 626 ECOLAB INC Contract Svcs-Pest Control Historical Buildings 163609 1,118 ENVIRONMENTAL EQUIPMENT&SERV Equipment Parts Fleet Services 163610 2,153 ERICKSON ENGINEERING COMPANY Other Contracted Services Engineering 163611 2,421 EULL'S MANUFACTURING CO INC Repair&Maint.Supplies Storm Drainage 163612 87 EXTREME BEVERAGE Misc Taxable Prairie View Liquor Store 163613 475 FAHEY,LARRY Other Contracted Services Outdoor Center 163614 374 FALCK,TIMOTHY R Other Contracted Services Softball 163615 8 FASTENAL COMPANY Equipment Parts Fleet Services 163616 100 FCA CONSTRUCTION Cash Over/Short General Fund 163617 89 FERRELLGAS Motor Fuels Fleet Services 163618 101 FLYING CLOUD T/S#U70 Waste Disposal Park Maintenance 163619 383 FSH COMMUNICATIONS LLC Telephone Miller Park 163620 71 GARDEN ROOM FRATELLI'S GARDEN Other Contracted Services Planning 163621 1,771 GE CAPITAL Other Rentals General 163622 158 GOOD,JAMIE Travel Expense Police 163623 506 GRAINGER Supplies-HVAC City Hall-CAM 163624 2,005 GRAPE BEGINNINGS Wine Imported Prairie View Liquor Store 163625 234 GRAPHIC SOURCE INC Printing Reserve 163626 13,212 GRIGGS COOPER&CO Wine Domestic Den Road Liquor Store 163627 221 GROTH MUSIC Operating Supplies Community Band 163628 9 GS DIRECT Operating Supplies Engineering 163629 70 GUSTAD,MARK Miscellaneous Information Technology 163630 804 HACH COMPANY Laboratory Chemicals Water Treatment Plant 163631 4,826 HAM,EARDLEY Right of Way&Easement Trails Referendum 163632 1,796 HANSEN THORP PELLINEN OLSON Design&Engineering Storm Drainage Projects 163633 17,832 HARTLAND FUEL PRODUCTS LLC Motor Fuels Fleet Services 163634 6,920 HAWKINS INC Treatment Chemicals Water Treatment Plant 163635 106 HD SUPPLY WATERWORKS LTD Repair&Maint.Supplies Water Metering 163636 17,085 HENNEPIN COUNTY PUBLIC WORKS-F Improvement Contracts Construction Fund 163637 148 HENNEPIN COUNTY TREASURER Operating Supplies-Escrow Guide Plan 163638 70 HENNEPIN COUNTY TREASURER Operating Supplies-Escrow Guide Plan 163639 50 HENNEPIN COUNTY TREASURER Operating Supplies-Escrow Guide Plan 163640 130 HENNEPIN COUNTY TREASURER Postage Elections 163641 352 HENRY,PAUL Other Contracted Services Volleyball 163642 1,040 HOHENSTEINS INC Beer Prairie View Liquor Store 163643 264 HOLMES,TOM Other Contracted Services Softball 163644 188 ICI DULUX PAINT CTRS Operating Supplies Water Treatment Plant 163645 166 IMAGETECH SERVICES Operating Supplies Park Maintenance 163646 505 IND SCHOOL DIST 272 Building Rental Community Band 163647 139 INDELCO PLASTICS CORP Equipment Parts Water Treatment Plant 163648 1,474 INDUSTRIAL FLOOR MAINTENANCE I Equipment Parts Fleet Services 163649 9,032 INTEREUM INC Capital Under$2,000 Furniture 163650 1,476 INTERSTATE POWER SYSTEMS INC Equipment Repair&Maint Water Treatment Plant 163651 20,165 JJ TAYLOR DIST OF MN Beer Prairie Village Liquor Store 163653 24,260 JOHNSON BROTHERS LIQUOR CO Liquor Prairie Village Liquor Store 163654 86 KEATING,MARY Mileage&Parking Planning 163655 35 KEEPERS Clothing&Uniforms Fire 163656 70 KENYON,PATRICK Tuition Reimbursement/School Police 163657 66 KRESS,CARLA Mileage&Parking Senior Center Administration 163658 11 LAB SAFETY SUPPLY INC Safety Supplies Utility Operations-General 163659 1,040 LAKE ASSAULT CUSTOM BOATS LLC Small Tools Fire 163660 1,735 LAKE COUNTRY DOOR LLC Contract Svcs-General Bldg Utility Operations-General 163661 296 LAKELAND ENGINEERING EQUIP CO Equipment Parts Water Treatment Plant 163662 668 LAMETTRYS COLLISION Equipment Repair&Maint Fleet Services 163663 108 LEAGUE MN CITIES INS TRUST Insurance Property Insurance 163664 21,829 LOGIS Postage Assessing 163665 512 M.AMUNDSON LLP Operating Supplies Den Road Liquor Store 163666 3,983 MADISON NATIONAL LIFE Disability Ins Employers Health and Benefits 163667 100 MALAM,DOUG Other Contracted Services Assessing 163668 10,267 MARK VII Beer Den Road Liquor Store 163669 93 MCGINTY-VANSICKLE,PATTI Mileage&Parking Police 163670 58 MENARDS Repair&Maint.Supplies Park Maintenance 163671 75 MERLINS ACE HARDWARE Operating Supplies Park Maintenance 163672 575 METRO ATHLETIC SUPPLY Operating Supplies Park Maintenance 163673 1,973 METRO SALES INCORPORATED* Other Rentals General Check# Amount Vendor/Explanation Account Description Business Unit 163675 961 MIDWEST COCA COLA BOTTLING COM Misc Taxable Prairie Village Liquor Store 163676 136 MINN OFFICE OF ENTERPRISE TECH Other Contracted Services Police 163677 23 MINNESOTA DEPT OF HEALTH Licenses&Taxes Water Treatment Plant 163678 20 MINNESOTA DEPT OF LABOR AND IN Licenses&Taxes Water Treatment Plant 163679 345 MINNESOTA REVENUE Licenses&Taxes Water Treatment Plant 163680 1,847 MINNESOTA VALLEY ELECTRIC COOP Electric Riley Lake 163681 142 MITCHELL,SANDY Tuition Reimbursement/School Police 163682 220 MORROW,JAMES Tuition Reimbursement/School Police 163683 17,922 MTI DISTRIBUTING INC Machinery&Equipment Park&Recreation 163684 245 NASW-MN Conference Expense Housing and Community Service 163685 1,193 NEW FRANCE WINE COMPANY Wine Domestic Den Road Liquor Store 163686 223 NORTH CENTRAL LABORATORIES Laboratory Chemicals Water Treatment Plant 163687 25 NORTHERN SAFETY TECHNOLOGY INC Equipment Parts Fleet Services 163688 100 O'CONNOR,ANNETTE Other Contracted Services Assessing 163689 16 O'REILLY AUTO PARTS Equipment Parts Fleet Services 163690 3,660 PAUSTIS&SONS COMPANY Beer Den Road Liquor Store 163691 91 PEPSI COLA COMPANY Misc Taxable Prairie Village Liquor Store 163692 257 PETERS IMPORTS Misc Non-Taxable Den Road Liquor Store 163693 264 PFEIFER,JASON Other Contracted Services Softball 163695 11,582 PHILLIPS WINE AND SPIRITS INC Wine Imported Den Road Liquor Store 163696 100 PIDCOCK,PATRICIA Other Contracted Services Assessing 163697 800 POWERPLAN OIB Equipment Parts Fleet Services 163698 8,036 PRAIRIE ELECTRIC COMPANY Equipment Repair&Maint Water Treatment Plant 163699 172 PRAIRIE LAWN AND GARDEN Equipment Parts Fleet Services 163700 488 PRIOR WINE COMPANY Wine Domestic Prairie Village Liquor Store 163701 17,748 QUALITY WINE&SPIRITS CO Liquor Prairie Village Liquor Store 163702 17 QUICKSILVER EXPRESS COURIER Postage Finance 163703 1,302 QWEST Telephone Prairie Village Liquor Store 163704 500 RAY,LEE Other Contracted Services Softball 163705 107 REED BUSINESS INFORMATION Legal Notices Publishing Street Maintenance 163706 227 RIGHTWAY GLASS INC Equipment Repair&Maint Fleet Services 163707 32 RIGID HITCH INCORPORATED Equipment Parts Fleet Services 163708 1,675 ROOT 0 MATIC Other Contracted Services Sewer System Maintenance 163709 4,879 SCHARBER&SONS Equipment Repair&Maint Fleet Services 163710 570 SCHERER BROTHERS LUMBER CO Building Materials Street Maintenance 163711 256 SHAMROCK GROUP,INC-ACE ICE Misc Non-Taxable Prairie View Liquor Store 163712 273 SHARP IMPRESSIONS Printing City Council 163713 22,806 SHORT ELLIOTT HENDRICKSON INC Design&Engineering Improvement Projects 1996 163714 604 SIGNATURE CONCEPTS INC. Clothing&Uniforms Community Center Admin 163715 167 SNAP-ON TOOLS Small Tools Fleet Services 163716 6,250 SOUTHDALE YMCA YOUTH DEVELOPME Other Contracted Services Housing and Community Service 163717 1,535 SPECIALTY WINES AND BEVERAGES Liquor Prairie Village Liquor Store 163718 9,162 SRF CONSULTING GROUP INC Design&Engineering Improvement Projects 2006 163719 104 STRAND MANUFACTURING CO INC Other Contracted Services Water Metering 163720 2,423 STREICHERS Equipment Parts Fleet Services 163721 50 SUN NEWSPAPERS Legal Notices Publishing City Clerk 163722 13,369 THORPE DISTRIBUTING Beer Den Road Liquor Store 163723 98 TRUE FABRICATIONS Misc Taxable Den Road Liquor Store 163724 20 TURNBULL,DIANE Landscape Materials/Supp Street Maintenance 163725 586 TWIN CITY SEED CO Improvement Contracts CIP Trails 163726 3 UPS Postage Utility Operations-General 163727 2,553 URBAN COMMUNICATIONS Other Rentals Ice Show 163728 207 US LEASING&SALES Equipment Repair&Maint Fleet Services 163729 2,483 US POSTMASTER-HOPKINS Postage Water Accounting 163730 347 VINOCOPIA Liquor Prairie View Liquor Store 163731 1,579 VSA INC Video&Photo Supplies Communication Services 163732 13,460 WALL TRENDS INC Contract Svcs-General Bldg Ice Arena Maintenance 163733 195 WERTS,SANDY Mileage&Parking Special Events Administration 163734 50 WILS Dues&Subscriptions Parks Administration 163735 276 WILSON,JOHN D. Mileage&Parking Police 163736 495 WINE COMPANY,THE Wine Domestic Prairie View Liquor Store 163737 3,831 WINE MERCHANTS INC Wine Domestic Den Road Liquor Store 163738 60 WITT,BETH Operating Supplies Girls on the Run 163739 461 WM MUELLER AND SONS INC Gravel Street Maintenance 163740 2,931 WORLD CLASS WINES INC Wine Imported Prairie Village Liquor Store Check# Amount Vendor/Explanation Account Description Business Unit 163741 220 WYFFELS,BILL Tuition Reimbursement/School Police 163742 60,608 XCEL ENERGY Electric Community Center Maintenance 163743 20,894 YALE MECHANICAL INC Contract Svcs-HVAC Prairie View Liquor Store 163744 242 ZAHN,GERALD Other Contracted Services Volleyball 163745 554 ZEP MANUFACTURING CO Motor Fuels Fleet Services 163746 2,496 CITI FINANCIAL Miscellaneous DWI Forfeiture 163747 29 RICHFIELD,CITY OF Operating Supplies Fleet Services 163748 6,380 STANDARD INSURANCE CO Life Insurance EE/ER Health and Benefits 163749 76 STATE OF MINNESOTA Operating Supplies Fleet Services 163752 200 A MEYER'S ENTERPRISES INC Instructor Service Outdoor Center 163753 2,118 A-SCAPE INC Contract Svcs-Lawn Maint. Fire Station#5 163754 230 AARP 55 ALIVE MATURE DRIVING Other Contracted Services Classes/Programs/Events 163755 974 ADVANCED SUPPLY Equipment Parts Fleet Services 163756 432 AMERICAN RED CROSS Recreation Supplies Pool Lessons 163757 129 AMERIPRIDE LINEN&APPAREL SER Repair&Maint.Supplies Prairie View Liquor Store 163758 83 AQUA ENGINEERING INC Landscape Materials/Supp Street Maintenance 163759 155 ARNDT,GARY AR Utility Water Enterprise Fund 163760 175 ATLAS FOUNDATION CO Building Materials Senior Center 163761 154 BARNES,BELINDA A. Other Contracted Services Volleyball 163762 85 BAYSCAN TECHNOLOGIES Other Hardware Capital Impr./Maint.Fund 163763 5,143 BELLBOY CORPORATION Operating Supplies Prairie View Liquor Store 163764 253 BEST&FLANAGAN LLP Other Contracted Services Rehab 163765 825 BEST BEVERAGE Conference Expense Prairie View Liquor Store 163766 206 BIFFS INC Operating Supplies Reserve 163767 24 BLATT,ARNOLD Program Fee Classes/Programs/Events 163768 3,230 BLOOMINGTON SECURITY SOLUTIONS Contract Svcs-Security Reserve 163769 570 BLUE WATER SCIENCE Other Contracted Services Storm Drainage 163770 409 BORG,STEVE Tuition Reimbursement/School Organizational Services 163771 40 BOYER TRUCKS Equipment Parts Fleet Services 163772 100 BOYLES,TYLER Refunds Environmental Education 163773 50 BRAGG,ANNALISA Instructor Service Outdoor Center 163774 74 BREHM GROUP,THE Other Contracted Services City Clerk 163775 100 CADDEN,MICHAEL Refunds Environmental Education 163776 120 CAMPOS,LORI Instructor Service Outdoor Center 163777 563 CELARITY INC Other Contracted Services Communication Services 163778 778 CEMSTONE PRODUCTS COMPANY Repair&Maint.Supplies Water System Maintenance 163779 3,685 CENTURYTEL Telephone Telephone 163780 100 CHARNES,JEFFREY Refunds Environmental Education 163781 212 CHOICE INC Other Contracted Services Prairie Village Liquor Store 163782 229 COMCAST Dues&Subscriptions City Council 163783 302 CORPORATE EXPRESS Office Supplies General 163784 460 CPRA Conference Expense Community Center Maintenance 163785 267 CUMMINGS,KIM Travel Expense Fire 163786 19 CUMMINS NORTH CENTRAL INC Equipment Parts Fleet Services 163787 4,746 CUTLER-MAGNER COMPANY Treatment Chemicals Water Treatment Plant 163788 230 D'AMICO AND SONS Operating Supplies Fire 163789 8,543 DAY DISTRIBUTING Wine Domestic Prairie View Liquor Store 163790 500 DEHN,JOSHUA E Other Contracted Services Park Maintenance 163791 34,745 DELANO ERICKSON ARCHITECTS Improvements to Land Park Acquisition&Development 163792 5,796 DELL Computers Information Technology 163793 2,153 DIESEL COMPONENTS,INC. Equipment Parts Fleet Services 163794 100 DIFRANCESCO,JOE Refunds Environmental Education 163795 2,855 EAGLE WINE COMPANY Wine Domestic Prairie Village Liquor Store 163796 1,159 EARL F ANDERSEN INC Signs Traffic Signs 163797 117 ECOLAB INC Contract Svcs-Pest Control Community Center Maintenance 163798 325 EDEN PRAIRIE CHAMBER OF COMMER Miscellaneous City Council 163799 58,208 ELK RIVER CHRYSLER INC Autos Police 163800 129 EPA AUDIO VISUAL INC Other Hardware Fire Station#4 163801 2,702 ESCH CONSTRUCTION SUPPLY INC Repair&Maint.Supplies Storm Drainage 163802 304 EXECUTIVE OCEAN Operating Supplies City Council 163803 80 FIELDSTONE VINEYARDS Wine Domestic Den Road Liquor Store 163804 268 FLYING CLOUD T/S#U70 Waste Disposal Park Maintenance 163805 100 FLYNN,MICHAEL OR JEAN Refunds Environmental Education 163806 834 G&K SERVICES-MPLS INDUSTRIAL Other Rentals Park Maintenance 163807 457 GE CAPITAL Other Rentals General Check# Amount Vendor/Explanation Account Description Business Unit 163809 2,398 GENUINE PARTS COMPANY Equipment Parts Fleet Services 163810 957 GRAINGER Supplies-General Bldg Reserve 163811 352 GRAPE BEGINNINGS Wine Domestic Prairie View Liquor Store 163812 2,015 GRAYBAR Supplies-Electrical City Center Operations 163813 4,670 GREENSIDE INC Contract Svcs-Lawn Maint. City Hall-CAM 163815 13,688 GRIGGS COOPER&CO Wine Domestic Prairie View Liquor Store 163816 90 GUNNAR ELECTRIC CO INC Other Contracted Services Park Maintenance 163817 440 HAMMERS,SARAH Other Contracted Services Volleyball 163818 100 HAMMOND,STEVEN A Refunds Environmental Education 163819 37 HD SUPPLY WATERWORKS LTD Repair&Maint.Supplies Park Maintenance 163820 1,641 HENNEPIN COUNTY SHERIFF'S OFFI Board of Prisoner Police 163821 1,513 HENNEPIN COUNTY TREASURER Board of Prisoner Police 163822 132 HENRY,PAUL Other Contracted Services Volleyball 163823 1,078 HIRSHFIELDS PAINT MANUFACTURIN Operating Supplies Park Maintenance 163824 7,253 HOLLYWOOD ENTERTAINMENT City Building Rental Den Bldg.-CAM 163825 176 HOLMES,TOM Other Contracted Services Volleyball 163826 1,945 ICERINK SUPPLY CO Contract Svcs-Ice Rink Ice Arena Maintenance 163828 249 INDUSTRIAL FLOOR MAINTENANCE I Equipment Parts Fleet Services 163829 661 INSIGHT PUBLIC SECTOR Operating Supplies Drainage 163830 2,370 INTERSTATE POWER SYSTEMS INC Equipment Parts Fleet Services 163831 987 J H LARSON COMPANY Supplies-Electrical Fire Station#3 163832 8,050 JJ TAYLOR DIST OF MN Beer Den Road Liquor Store 163833 558 JOHN HENRY FOSTER MINNESOTA IN Maintenance Contracts Water Treatment Plant 163835 28,304 JOHNSON BROTHERS LIQUOR CO Wine Domestic Prairie View Liquor Store 163836 25 JOHNSON,CORRINE Program Fee Red Hat 163837 10 JOHNSON,JAMES Lessons&Classes Girls on the Run 163838 50 KIMBER,ELIZABETH Refunds Environmental Education 163839 100 KOTTKE,LELAND&CAROL Refunds Environmental Education 163840 83 KRAEMERS HARDWARE INC Operating Supplies Softball 163841 459 LANO EQUIPMENT INC Equipment Parts Fleet Services 163929 218 RICHARDSON,JIM Mileage&Parking Summer Skill Development 163933 100 LEACH,JOHN Refunds Environmental Education 163934 1,585 MACQUEEN EQUIPMENT INC Equipment Parts Fleet Services 163935 17,730 MARK VII Beer Prairie View Liquor Store 163936 833 MEDICINE LAKE TOURS Operating Supplies Trips 163937 176 MENARDS Building Materials Park Maintenance 163938 298 METRO ATHLETIC SUPPLY Operating Supplies Park Maintenance 163939 14,924 METROPOLITAN COUNCIL Due to Other Governments SAC Agency Fund 163940 231,524 METROPOLITAN COUNCIL ENVIRONME Waste Disposal Sewer Utility-General 163941 675 METROPOLITAN FORD Equipment Repair&Maint Fleet Services 163942 100 MEYER,TIFFANY Refunds Environmental Education 163943 283 MIDWEST ASPHALT CORPORATION Repair&Maint.Supplies Water System Maintenance 163944 641 MIDWEST COCA COLA BOTTLING COM Misc Taxable Den Road Liquor Store 163945 6,439 MIDWEST DESIGN CO Other Contracted Services Communication Services 163946 92 MILLARD,EMILY Tuition Reimbursement/School Police 163947 1,415 MINN CHILD SUPPORT PAYMENT CTR Garnishment Withheld General Fund 163948 160 MINNESOTA CHIEFS OF POLICE ASS Dues&Subscriptions Police 163949 425 MINNESOTA NATIVE LANDSCAPES Other Contracted Services Storm Drainage 163950 503 MINNESOTA ROADWAYS CO Contract Svcs-Asphalt/Concr. City Hall-CAM 163951 428 MINNESOTA WANNER COMPANY Equipment Repair&Maint Park Maintenance 163952 349 MTI DISTRIBUTING INC Equipment Parts Fleet Services 163953 5 NARAYANAN,RAJ Lessons&Classes Pool Lessons 163954 50 NCTRC Operating Supplies Senior Center Administration 163955 100 NGUYEN,MONG-HANG Refunds Environmental Education 163956 384 NINETYNINE BOTTLES Beer Den Road Liquor Store 163957 50 NORD,JANNA Refunds Environmental Education 163958 479 NORTHERN SAFETY TECHNOLOGY INC Equipment Parts Fleet Services 163959 410 OLSEN COMPANIES Small Tools Water System Maintenance 163960 1,400 OLSEN'S EMBROIDERY/COMPANY Clothing&Uniforms Fleet Services 163961 160 PACIFIC DIRECT Misc Taxable Den Road Liquor Store 163962 1,523 PAUSTIS&SONS COMPANY Wine Domestic Prairie View Liquor Store 163963 6,777 PCS TECHNOLOGIES INC Other Hardware Capital Impr./Maint.Fund 163964 100 PERSON,ROGER Refunds Environmental Education 163965 23,914 PHILLIPS WINE AND SPIRITS INC Wine Imported Prairie View Liquor Store 163966 100 PLETCHER,DALE Refunds Environmental Education Check# Amount Vendor/Explanation Account Description Business Unit 163967 42 POMP'S TIRE SERVICE INC Equipment Repair&Maint Fleet Services 163968 1,070 PRAIRIE ELECTRIC COMPANY Building Capital Impr./Maint.Fund 163969 128 PRAIRIE EQUIPMENT COMPANY Equipment Parts Water Treatment Plant 163970 186 PRAIRIE LAWN AND GARDEN Equipment Parts Fleet Services 163971 143 PRIOR WINE COMPANY Wine Imported Den Road Liquor Store 163972 64 PRIORITY COURIER EXPERTS Repair&Maint.Supplies Fleet Services 163973 1,388 PROFESSIONAL EDGE INC Other Contracted Services Organizational Services 163974 10 PROP United Way Withheld General Fund 163975 1,222 PROSOURCE ONE Chemicals Park Maintenance 163976 117 QUALITY PROPANE Motor Fuels Ice Arena Maintenance 163977 13,046 QUALITY WINE&SPIRITS CO Wine Domestic Prairie View Liquor Store 163978 55 QWEST Telephone Sewer Liftstation 163979 400 RAY,LEE Other Contracted Services Softball 163980 760 REGNIER,MARK Other Contracted Services Riley-Jacques Barn 163981 330 RGI PUBLICATIONS INC Advertising Prairie View Liquor Store 163982 2,847 RICHFIELD,CITY OF Autos Public Works 163983 23 RIGID HITCH INCORPORATED Equipment Parts Fleet Services 163984 100 ROBERTS,RANDALL Refunds Environmental Education 163985 100 ROEMMICH,CRYSTAL Refunds Environmental Education 163986 300 ROOT 0 MATIC Other Contracted Services Sewer System Maintenance 163987 460 SCHERER BROTHERS LUMBER CO Building Materials Street Maintenance 163988 392 SCHMIEG,KEVIN Operating Supplies Inspections-Administration 163989 6,996 SENIOR COMMUNITY SERVICES Other Contracted Services Housing and Community Service 163990 66 SEVENICH,WENDY Mileage&Parking Community Center Admin 163991 322 SHAMROCK GROUP,INC-ACE ICE Misc Non-Taxable Prairie View Liquor Store 163992 365 SIMPLEXGRINNELL LP Contract Svcs-Fire/Life/Safe Reserve 163993 200 SINGER,SUSAN Refunds Environmental Education 163994 2,828 SPS COMPANIES Supplies-Plumbing Community Center Maintenance 163995 500 ST LOUIS COUNTY SHERIFF'S DEPA Deposits Escrow 163996 165 ST.LOUIS PARK,CITY OF Conference Expense City Manager 163997 100 ST.PETER,DAVID&JOANIE Refunds Environmental Education 163998 584 STREICHERS Capital Under$2,000 Fleet Services 163999 372 SUN NEWSPAPERS Improvements to Land Capital Impr./Maint.Fund 164000 180 SUTTON,TERESA Lessons&Classes Pool Lessons 164001 93 THIELMAN,MARC Mileage&Parking General Facilities 164002 18,742 THORPE DISTRIBUTING Beer Den Road Liquor Store 164003 251 TRUE FABRICATIONS Misc Taxable Den Road Liquor Store 164004 135 TWIN CITY SEED CO Landscape Materials/Supp Park Maintenance 164005 1,250 UNCOMMON GATHERINGS Other Contracted Services Summer Theatre 164006 10 UNITED WAY United Way Withheld General Fund 164007 2,088 VESSCO INC Equipment Parts Water Treatment Plant 164008 793 VIDEOTRONIX INC Other Assets Den Road Building 164009 502 VINOCOPIA Wine Imported Prairie View Liquor Store 164010 222 VWR INTERNATIONAL INC Laboratory Chemicals Water Treatment Plant 164011 1,455 WALL TRENDS INC Contract Svcs-General Bldg Community Center Maintenance 164012 119 WHITE,NICOLE Mileage&Parking Therapeutic Rec Administration 164014 2,035 WINE COMPANY,THE Wine Imported Prairie Village Liquor Store 164015 3,736 WINE MERCHANTS INC Wine Domestic Prairie Village Liquor Store 164016 100 WINSPEAR,JOEL Refunds Environmental Education 164017 5,519 WISSOTA SUPPLY COMPANY INC Contract Svcs-General Bldg Reserve 164018 50 WOMEN IN LEISURE SERVICES Dues&Subscriptions Parks Administration 164019 688 WORLD CLASS WINES INC Wine Imported Prairie Village Liquor Store 164020 3,038 YALE MECHANICAL INC Contract Svcs-HVAC City Hall-CAM 164021 25,728 ELK RIVER CHRYSLER INC Autos Public Works 164022 178 IND SCHOOL DIST 272 Operating Supplies Records Management 164023 2,036 IND SCHOOL DIST 272 CAM School City Hall-CAM 164024 172 CINGULAR WIRELESS Pager&Cell Phone Police 164025 11,270 DELL Other Hardware Information Technology 164026 4,486 GARDEN ROOM FRATELLI'S GARDEN Miscellaneous City Council 164027 206 MINNESOTA VALLEY ELECTRIC COOP Electric Riley Lake 164028 150 UNIVERSITY OF MINNESOTA Other Contracted Services Organizational Services 164029 72 VERIZON WIRELESS Pager&Cell Phone Police 164030 425 3CMA Awards Communication Services 164031 267 A MEYER'S ENTERPRISES INC Instructor Service Outdoor Center 164032 77 A TO Z RENTAL CENTER Other Rentals Senior Center Check# Amount Vendor/Explanation Account Description Business Unit 164033 228 ACCURINT-ACCOUNT#1348824 Other Contracted Services Police 164034 544 ADMINISTRATION RESOURCES CORP Other Contracted Services Finance 164035 218 AEGIS PROTECTION GROUP,THE Tuition Reimbursement/School Police 164036 100 AFABLE,PEDRO Refunds Environmental Education 164037 99 AFFILIATED EMERGENCY VETERINAR Canine Supplies Police 164038 565 ALEX AIR APPARATUS INC Gas Fire 164039 488 ALPHA VIDEO& AUDIO INC Video&Photo Supplies Communication Services 164040 28 AMERICAN MESSAGING Pager&Cell Phone Water System Maintenance 164041 676 AMERICAN PRESSURE INC Equipment Repair&Maint Fleet Services 164042 1,148 AMERICAN RED CROSS Recreation Supplies Pool Lessons 164043 101 AMERIPRIDE LINEN&APPAREL SER Repair&Maint.Supplies Prairie Village Liquor Store 164044 117 ANCHOR PAPER COMPANY Office Supplies General 164045 2,061 ANCHOR PRINTING COMPANY Printing Senior Center Administration 164046 264 ANDERSON,BRYAN E Other Contracted Services Softball 164047 129 AQUA ENGINEERING INC Landscape Materials/Supp Street Maintenance 164048 4,652 ASPEN WASTE SYSTEMS INC. Waste Disposal Parks Referendum 164049 175 ATOM Dues&Subscriptions Police 164050 3,325 AVI SYSTEMS INC Video&Photo Supplies Communication Services 164051 556 BAILEY NURSERIES INC Landscape Materials/Supp Park Maintenance 164052 25 BATTERIES PLUS Operating Supplies Park Maintenance 164053 150 BCA BTS Tuition Reimbursement/School Police 164054 178 BEACON ATHLETICS Operating Supplies Park Maintenance 164055 6,244 BELLBOY CORPORATION Liquor Den Road Liquor Store 164056 20 BLOOD,MR AR Utility Water Enterprise Fund 164057 410 BLOOMINGTON SECURITY SOLUTIONS Operating Supplies Police 164058 86 BLOOMINGTON,CITY OF Other Contracted Services Park Maintenance 164059 50 BOLD,PAULINE Instructor Service Outdoor Center 164060 50 BOUDREAUX,BURT Program Fee Trips 164061 5,350 BRAUN INTERTEC CORPORATION Improvement Contracts Trails Referendum 164062 1,116 BRYAN ROCK PRODUCTS INC Gravel Sewer System Maintenance 164063 539 CADAN CORPORATION Other Hardware Capital Impr./Maint.Fund 164064 27 CAMPBELL KNUTSON,P.A. Legal WAFTA 164065 120 CAMPOS,LORI Instructor Service Outdoor Center 164066 108 CATCO PARTS SERVICE Equipment Parts Fleet Services 164067 25 CAWLEY COMPANY,THE Operating Supplies Parks Administration 164068 1,350 CELARITY INC Other Contracted Services Communication Services 164069 1,340 CEMSTONE PRODUCTS COMPANY Repair&Maint.Supplies Storm Drainage 164070 269 CENTERPOINT ENERGY Gas Crestwood Park 164071 27,610 CENTERPOINT ENERGY SERVICES IN Gas City Hall-CAM 164072 216 CENTURY COLLEGE Safety Supplies Fire 164073 31 CHAVEZ,GAIL AR Utility Water Enterprise Fund 164074 71 CHOMIUK,JEFFREY AR Utility Water Enterprise Fund 164075 675 CITY OF SAINT PAUL,THE Tuition Reimbursement/School Police 164076 1,630 CLAREYS INC Office Supplies General 164077 2,500 CLARK ENGINEERING CORP Other Contracted Services Community Center Referendum 164078 254 CM CONSTRUCTION COMPANY INC. Deposits Escrow 164079 125 COMMUNITY HEALTH CHARITIES United Way Withheld General Fund 164080 505 CONSTRUCTION MATERIALS INC Repair&Maint.Supplies Storm Drainage 164081 1,147 CONTROL SERVICES OF MINNESOTA, Contract Svcs-HVAC City Hall-CAM 164082 282 COPELAND BUILDING CORP Deposits Escrow 164083 2,253 CORPORATE EXPRESS Office Supplies Police 164084 2,064 CRETEX CONCRETE PRODUCTS NORTH Repair&Maint.Supplies Sewer Utility-General 164085 220 CRIPE,JACQUELYN V Other Contracted Services Adult Open Gym 164086 68 CULLIGAN BOTTLED WATER Operating Supplies Fire 164087 34 CULLIGAN-METRO Other Contracted Services Outdoor Center 164088 453 CUSTOM WATER WORKS Miscellaneous Communication Services 164089 4,533 CUTLER-MAGNER COMPANY Treatment Chemicals Water Treatment Plant 164090 428 D R&ASSOCIATES ENTERPRISES L Equipment Repair&Maint Police 164091 77 DALE GREEN COMPANY,THE Landscape Materials/Supp Street Maintenance 164092 9,755 DAY DISTRIBUTING Beer Prairie Village Liquor Store 164093 6,557 DELL Office Supplies General 164094 71 DELUXE BUSINESS CHECKS&SOLUT Bank and Service Charges Prairie Village Liquor Store 164095 3,881 DEX MEDIA EAST Advertising Prairie View Liquor Store 164096 1,545 DEZURIK WATER CONTROLS Equipment Parts Water Treatment Plant 164097 25,248 DIVERSE BUILDING MAINTENANCE Janitor Service Police City Center Check# Amount Vendor/Explanation Account Description Business Unit 164098 330 DOHERTY,SANDRA L Other Contracted Services Volleyball 164099 85 DOOR 15 Tuition Reimbursement/School Fire 164100 12,503 DRT TRANSPORT Lime Residual Removal Water Treatment Plant 164101 3,849 EAGLE WINE COMPANY Wine Domestic Prairie Village Liquor Store 164102 1,334 EARL F ANDERSEN INC Signs Park Maintenance 164103 190 EDEN PRAIRIE WINLECTRIC Equipment Repair&Maint Traffic Signals 164104 5 EF JOHNSON Equipment Repair&Maint Wireless Communication 164105 360 ELIFEGUARD INC Repair&Maint.Supplies Riley Lake Beach 164106 2,080 EMPLOYERS ASSOCIATION INC Instructor Service Water Treatment Plant 164107 1,806 ENGINEERED ICE SYSTEMS Contract Svcs-Ice Rink Ice Arena Maintenance 164108 579 ERIK'S BIKE SHOP Equipment Repair&Maint Police 164109 206 ETICA Wine Imported Prairie Village Liquor Store 164110 224 EXTREME BEVERAGE Misc Taxable Den Road Liquor Store 164111 374 FALCK,TIMOTHY R Other Contracted Services Softball 164112 66 FEDEX Postage Fire 164113 231 FERRELLGAS Gas Riley Lake 164114 1,775 FIRENET SYSTEMS INC Maintenance Contracts Water Treatment Plant 164115 457 FLYING CLOUD ANIMAL HOSPITAL Canine Supplies Police 164116 48 FLYING CLOUD T/S#U70 Waste Disposal Park Maintenance 164117 100 GADOLA,MICHELE Refunds Environmental Education 164118 76 GARDEN ROOM FRATELLI'S GARDEN Miscellaneous City Council 164119 191 GE CAPITAL Other Rentals General 164120 389 GENERAL GROWTH PROPERTIES LP-E Building Rental CDBG Fund 164121 450 GETTMAN COMPANY Misc Taxable Prairie Village Liquor Store 164122 1,331 GOPHER STATE ONE-CALL INC Other Contracted Services Water System Maintenance 164123 1,089 GRAINGER Cleaning Supplies Water Treatment Plant 164124 703 GRAPE BEGINNINGS Wine Domestic Den Road Liquor Store 164125 3,749 GREENSIDE INC Contract Svcs-Lawn Maint. City Hall-CAM 164126 12,580 GRIGGS COOPER&CO Liquor Prairie Village Liquor Store 164127 286 HAGEN,SIDNEY E Other Contracted Services Softball 164128 1,271 HARMON INC. Building Repair&Maint. Prairie View Liquor Store 164129 790 HAWKINS INC Treatment Chemicals Water Treatment Plant 164130 409 HD SUPPLY WATERWORKS LTD Repair&Maint.Supplies Senior Center 164131 40 HENNEPIN CHIEF'S ASSOCIATION Tuition Reimbursement/School Police 164132 534 HENNEPIN COUNTY UT DEPT Software Maintenance Information Technology 164133 44 HENNEPIN COUNTY TREASURER Operating Supplies-Escrow Guide Plan 164134 25 HENNEPIN COUNTY TREASURER Operating Supplies-Escrow Guide Plan 164135 25 HENNEPIN COUNTY TREASURER Operating Supplies-Escrow Guide Plan 164136 1,294 HOHENSTEINS INC Beer Prairie View Liquor Store 164137 176 HOLMES,TOM Other Contracted Services Softball 164138 10,416 HONEYWELL INDUSTRY SOLUTIONS Maintenance Contracts Water Treatment Plant 164139 94 IDEXX DISTRIBUTION CORP Operating Supplies Water Treatment Plant 164140 135 IN THE HEART OF THE BEAST Other Contracted Services Around Town 164141 574 IN THE LINE OF DUTY INC Training Supplies Police 164142 33 IND SCHOOL DIST 272 Operating Supplies Police 164143 11 INGRAM,EARL AR Utility Water Enterprise Fund 164144 180 INSIGHT PUBLIC SECTOR Other Hardware Information Technology 164145 1,189 INTOXIMETERS Operating Supplies Police 164146 18 J H LARSON COMPANY Supplies-Electrical Historical Buildings 164147 86,207 J-CRAFT DIV OF CRYSTEEL MFG IN Machinery&Equipment Public Works 164148 4,500 JAB'S GEHRIG&COMPANY Other Contracted Services Planning&Development 164149 15,526 JJ TAYLOR DIST OF MN Beer Prairie Village Liquor Store 164151 26,695 JOHNSON BROTHERS LIQUOR CO Transportation Den Road Liquor Store 164152 1,138 KEEPERS Clothing&Uniforms Police 164153 1,413 KRISS PREMIUM PRODUCTS INC Supplies-HVAC City Hall-CAM 164154 429 LAKE COUNTRY DOOR LLC Contract Svcs-General Bldg City Hall-CAM 164155 2,381 LANO EQUIPMENT INC Equipment Parts Fleet Services 164156 85 LEROY JOB TRUCKING INC Kennel Services Animal Control 164157 6,330 LOCATORS&SUPPLIES INC Small Tools Park Maintenance 164158 465 M.AMUNDSON LLP Misc Taxable Den Road Liquor Store 164159 17,647 MARK VII Beer Den Road Liquor Store 164160 476 MASS BAR-MATE CORP Misc Taxable Den Road Liquor Store 164161 374 MCGREGOR,RANDY Other Contracted Services Softball 164162 75 MELROSE TELEPHONE COMPANY Other Contracted Services Police 164163 741 MENARDS Repair&Maint.Supplies Storm Drainage Check# Amount Vendor/Explanation Account Description Business Unit 164164 4,940 MERIT PRINTING Printing Fire 164165 144 METRO FIRE Repair&Maint.Supplies Fire 164166 2,241 METRO SALES INCORPORATED* Other Rentals General 164167 2,118 MIDWEST ASPHALT CORPORATION Waste Blacktop/Concrete Street Maintenance 164168 723 MIDWEST COCA COLA BOTTLING COM Misc Taxable Prairie View Liquor Store 164169 768 MIDWEST DESIGN CO Other Contracted Services Communication Services 164170 417 MIDWEST TELETRON INC. Operating Supplies Police 164171 592 MINNESOTA ATHLETIC Operating Supplies Police 164172 437 MINNESOTA CLIPPING SERVICE Other Contracted Services Communication Services 164173 74 MINNESOTA CONWAY Operating Supplies Fire 164174 116 MINNESOTA COUNTY ATTORNEYS ASS Printing Police 164175 92 MINNESOTA DEPT OF HEALTH Licenses&Taxes Water System Maintenance 164176 23 MINNESOTA DEPT OF HEALTH Licenses&Taxes Water Distribution 164177 481 MINNESOTA GLOVE INC Safety Supplies Fleet Services 164178 836 MINNESOTA PIPE AND EQUIPMENT* Repair&Maint.Supplies Water Metering 164179 123 MINNESOTA PRINT MANAGEMENT LLC Office Supplies General 164180 1,500 MINNESOTA RADIOLOGY Safety Supplies Fire 164181 259 MINNESOTA ROADWAYS CO Patching Asphalt Street Maintenance 164182 435 MINNESOTA TROPHIES&GIFTS Operating Supplies Police 164183 12,800 MMKR Audit&Financial Finance 164184 40,987 MN DNR WATERS Licenses&Taxes Water Treatment Plant 164185 2,081 MOBILE RADIO ENGINEERING INC Equipment Repair&Maint Wireless Communication 164186 330 MORAN USA,LLC Misc Taxable Den Road Liquor Store 164187 699 MTI DISTRIBUTING INC Equipment Parts Fleet Services 164188 60 NEBRASKA RURAL WATER ASSOCIATI Employment Advertising Organizational Services 164189 1,357 NEW FRANCE WINE COMPANY Wine Domestic Prairie View Liquor Store 164190 826 NILSSEN,BETH Instructor Service Ice Arena 164191 137 NORTH CENTRAL LABORATORIES Laboratory Chemicals Water Treatment Plant 164192 5,574 NORTHSHORE ADVISORS LLC Interest Investment Fund 164193 110 NORTHWEST RESPIRATORY SERVICE Operating Supplies Fire 164194 168 NUCO2 INC Chemicals Pool Maintenance 164195 193 OLSEN COMPANIES Operating Supplies Traffic Signals 164196 2,838 PARK NICOLLET CLINIC Safety Supplies Fire 164197 540 PAUL'S TWO-WAY RADIO REPAIR Equipment Repair&Maint Wireless Communication 164198 4,434 PAUSTIS&SONS COMPANY Wine Imported Den Road Liquor Store 164199 993 PC MALL Other Hardware Information Technology 164200 639 PERSONAL TOUCH TECHNOLOGIES IN Software Maintenance Information Technology 164201 19 PETERSON,GERALDINE Memberships Community Center Admin 164203 14,172 PHILLIPS WINE AND SPIRITS INC Wine Domestic Prairie View Liquor Store 164204 344 PITNEY BOWES INC Postage General 164205 3,000 POSTAGE BY PHONE RESERVE ACCOU Postage General 164206 5,463 PRAIRIE ELECTRIC COMPANY Contract Svcs-Electrical City Hall-CAM 164207 8,958 PRAIRIE PARTNERS SIX LLP Building Rental Prairie Village Liquor Store 164208 7,684 PRAIRIEVIEW RETAIL LLC Building Rental Prairie View Liquor Store 164209 72 PRINTERS SERVICE INC Contract Svcs-Ice Rink Ice Arena Maintenance 164210 281 PRIOR WINE COMPANY Wine Imported Den Road Liquor Store 164211 1,315 PUBLIC SAFETY EQUIPMENT LLC Equipment Repair&Maint Police 164212 230 PUBLIC SAFETY TRAINING CONSULT Tuition Reimbursement/School Police 164213 77 QUALITY PROPANE Motor Fuels Ice Arena Maintenance 164214 14,542 QUALITY WINE&SPIRITS CO Wine Domestic Prairie Village Liquor Store 164215 990 R&H THEATRICALS Other Contracted Services Summer Theatre 164216 116 RANDY'S BOBBY&STEVE'S AUTOWO Equipment Repair&Maint Police 164217 450 RAY,LEE Other Contracted Services Softball 164218 242 REID,DEVIN M Other Contracted Services Softball 164219 21,064 RELIAKOR SERVICES INC Sweeping Storm Drainage 164220 434 RIDGEVIEW MEDICAL CENTER Other Contracted Services Workers Comp Insurance 164221 235 RIGHTWAY GLASS INC Equipment Repair&Maint Fleet Services 164222 359 RIGID HITCH INCORPORATED Equipment Parts Fleet Services 164223 254 RJM Beer Den Road Liquor Store 164224 3,120 ROBERT C VOGEL Other Contracted Services 1999 CLG Grant 164225 68 ROBINSON,TIFFANY Mileage&Parking Finance 164226 200 ROCKY NATIONAL Operating Supplies Police 164227 5 RUND,LISA Life Ins/Employers Share Human Resources 164228 252 RYAN CONSTRUCTION Deposits Escrow 164229 150 SCRAP METAL PROCESSORS INC Equipment Repair&Maint Fleet Services Check# Amount Vendor/Explanation Account Description Business Unit 164230 382 SHAMROCK GROUP,INC-ACE ICE Misc Non-Taxable Prairie View Liquor Store 164231 61 SHRED-IT Waste Disposal City Center Operations 164232 47 SIGHTLINE DISPLAYS,LLC Operating Supplies Park Maintenance 164233 27,324 SOFTWARE HOUSE INTERNATIONAL I Software Maintenance Information Technology 164234 2,368 SOUTHWEST SUBURBAN CABLE COMMI Dues&Subscriptions City Council 164235 3,737 SOUTHWEST SUBURBAN PUBLISHING- Advertising Prairie View Liquor Store 164236 263 SPS COMPANIES Repair&Maint.Supplies Senior Center 164237 72,426 SRF CONSULTING GROUP INC Other Contracted Services Planning 164238 11,945 ST CROIX ENVIRONMENTAL INC Other Contracted Services Water Treatment Plant 164239 2,417 STAR TRIBUNE Employment Advertising Organizational Services 164240 500 STATE OF MINNESOTA CPV PROGRAM Dues&Subscriptions Fleet Services 164241 375 STILLWATER CONSULTING INC Other Contracted Services City Council 164243 7,657 STREICHERS Clothing&Uniforms Reserves 164244 193 SUN NEWSPAPERS Legal Notices Publishing City Clerk 164245 2,615 SUPERIOR STRIPING INC Contract Svcs-Asphalt/Concr. City Hall-CAM 164246 876 TESSCO Equipment Parts Fleet Services 164247 18,852 THORPE DISTRIBUTING Beer Prairie Village Liquor Store 164248 224 TKDA Other Contracted Services Water System Maintenance 164249 27 TOLL GAS AND WELDING SUPPLY Small Tools Fleet Services 164250 146 TOM'S WINDOW CLEANING Janitor Service-General Bldg Den Road Building 164251 650 TRESIDDER,JEFF Operating Supplies Fire 164252 250 TRUGREEN CHEMLAWN MTKA Other Contracted Services Park Maintenance 164253 146 TWIN CITY OXYGEN CO Repair&Maint.Supplies Sewer System Maintenance 164254 355 UNIFORMS UNLIMITED Clothing&Uniforms Police 164255 89 UNITED RENTALS Small Tools Street Maintenance 164256 4,871 VALLEY RICH CO INC Other Contracted Services Water System Maintenance 164257 8 VERIZON WIRELESS Pager&Cell Phone Fleet Services 164258 771 VERNCO MAINTENANCE INC Maintenance Contracts Water Treatment Plant 164259 245 VESSCO INC Equipment Parts Water Treatment Plant 164260 3,367 VIDEOTRONIX INC Other Assets Den Road Building 164261 14 WAHL,DUANE AR Utility Water Enterprise Fund 164262 10,467 WENCK ASSOCIATES INC Other Contracted Services Storm Drainage 164263 687 WINE COMPANY,THE Wine Domestic Prairie Village Liquor Store 164264 4,280 WINE MERCHANTS INC Wine Domestic Den Road Liquor Store 164265 420 WINE SOURCE INTERNATIONAL Wine Imported Den Road Liquor Store 164266 20 WISCONSIN RURAL WATER ASSOCIAT Employment Advertising Organizational Services 164267 399 WITT,BETH Mileage&Parking Aquatics&Fitness Admin 164268 3,787 WORK CONNECTION,THE Other Contracted Services Park Maintenance 164269 309 WORLD CLASS WINES INC Wine Imported Den Road Liquor Store 164270 41,055 XCEL ENERGY Electric City Hall-CAM 164271 20 YAHOO! Other Contracted Services Police 164272 10,768 YALE MECHANICAL INC Contract Svcs-HVAC Community Center Maintenance 164273 506 ZABRANSKY,LAELA Other Contracted Services Volleyball 164274 35,999 GREGERSON ROSOW JOHNSON&NILA Legal Legal Criminal Prosecution 164275 528 PRAIRIEVIEW RETAIL LLC Other Contracted Services Prairie View Liquor Store 164276 128 PRIORITY COURIER EXPERTS Equipment Repair&Maint Fleet Services 2,541,673 Grand Total CITY COUNCIL AGENDA DATE: SECTION: Appointments June 5, 2007 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: XIII.A. City Council Appointment to Arts & Culture Commission Requested Action Move to: Appoint Ms. Rita McCormick to the Arts and Culture Commission for a term to end on March 31, 2009. Synopsis The Arts and Culture Commission is currently at six members and is under the maximum membership level of seven members due to the recent resignation of Ms. Diane Zielke. Ms Zielke resigned her position for health reasons. An application from Rita McCormick was received in the past two weeks. Ms. McCormick has a Bachelors degree in Humanities/Art History from the University of Minnesota, and is self- employed doing promotional marketing, public relations placements, speaking, writing and copywriting. Ms. McCormick stated in her application that she would like to bring a marketer's perspective to best communicate the value of arts-related programs to the community,using her education as background for the visual arts and her writing experiences to help promote the Arts. The City Manager and Arts and Culture Commission staff liaison Sandy Werts recommend Council approve this appointment. Attachments Board and Commission Application(Council Only) CITY COUNCIL AGENDA DATE: SECTION: Reports of the City Manager June 5, 2007 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: XIV.B.1. City Manager, Scott Neal Sprint/Nextel Radio Replacement Agreement Requested Action Move to: Approve Agreement with Sprint Nextel for the replacement of all city, school district and SW Transit radios. Synopsis After months of negotiations with Sprint/Nextel an agreement has been reached whereby Sprint/Nextel will replace all radios currently operating on the City's "Multi-net"radio system. This is the outcome the City had sought at the outset of the process in the 4th quarter of 2006. Background Information In a 2005 agreement with the FCC, Sprint/Nextel agreed to move public safety radio systems that have interference from the Sprint/Nextel cell phone frequencies to other frequencies at no cost to the public safety entity that is impacted. Eden Prairie's public safety radio system is in the second wave of the process and has been in negotiations with Sprint/Nextel since late 2006. There are roughly 1000 portable and mobile radios in Eden Prairie's system that will need to be replaced as a result of the FCC agreement with Sprint/Nextel. Attachments Sprint Nextel Radio Replacement Agreement (hand carried) FREQUENCY RECONFIGURATION AGREEMENT THIS FREQUENCY RECONFIGURATION AGREEMENT ("Agreement") is made as of this day of , 2007 ("Effective Date"),by and between City of Eden Prairie, a municipal entity incorporated under the laws of the State of Minnesota, ("Incumbent"), and Nextel West Corp. ("Nextel"), a wholly owned indirect subsidiary of Sprint Nextel Corp., a Kansas corporation (each is referred to in this Agreement as a"Party"and collectively as the"Parties"). RECITALS A. On August 6, 2004, the Federal Communications Commission ("FCC") issued a Report and Order that modified its rules governing the 800 MHz band. The purpose of the Order was to reconfigure the 800 MHz band to minimize harmful interference to public safety radio communications systems in the band("Reconfiguration"). B. On December 22, 2004,the FCC issued a Supplemental Order and Order on Reconsideration. The August 6, 2004 and December 22, 2004 FCC orders, and any supplemental FCC Orders in the Reconfiguration proceeding or subsequent actions after the date of this Agreement, are collectively referred to as the "Order." C. Pursuant to the Order, Incumbent and Nextel are licensed on frequency allocations subject to Reconfiguration. D. Pursuant to the Order, Nextel will pay Incumbent an amount to effect a Reconfiguration of Incumbent's affected frequency allocations ("Reconfiguration Cost"). Incumbent will certify to the Transition Administrator appointed pursuant to the Order (the "Transition Administrator") that the Reconfiguration Cost is the minimum amount necessary to provide comparable facilities. FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS: AGREEMENT 1. Frequencies to be Reconfigured: Incumbent is the licensee under the license(s) granted by the FCC identified in Schedule A (the "Incumbent Licenses") for the operation of certain 800 MHz frequencies at the locations identified on Schedule A (the "Incumbent Frequencies"). Nextel, including its subsidiaries or affiliates, is the licensee under license(s) granted by the FCC (the"Nextel Licenses") for the operation of Specialized Mobile Radio ("SMR") systems on the frequencies and at the locations identified in Schedule B (the "Replacement Frequencies"). Pursuant to the Order, Incumbent must relinquish the Incumbent Frequencies and relocate its system to the Replacement Frequencies. 2. Frequency Reconfiguration Process: (a) On or before the Closing Date (as defined below) (i) Nextel or Incumbent will cause the modification of the Incumbent Licenses to add the Replacement Frequencies or Nextel will cause the creation of a new FCC license for Incumbent that includes the Replacement Frequencies; (ii)Incumbent will cause the assignment of the Incumbent Frequencies to Nextel or will cause the deletion of the Incumbent Frequencies from the Incumbent Licenses following Reconfiguration of Incumbent's system; and (iii) Nextel will cause the modification and/or cancellation of the FCC licenses it holds for the operation of 800 MHz frequencies that are co-channels of the Replacement Frequencies, to the extent required to meet the technical short-spacing requirements of Section 90.621(b) of the FCC's Rules, 47 C.F.R. § 90.621(b), as such rule may be amended from time to time by the FCC. Page 1 of 24 FRA Eden Prairie FINAL 06-01-07.doc (b) The parties agree that Nextel and the Incumbent (as appropriate) will make the FCC assignment filings for the Replacement Frequencies on a future date to be determined by the parties through mutual agreement, as provided in Section 5. The Parties agree to notify Nextel and the Incumbent (as appropriate)of the FCC assignment filings in accordance with the Notice provision of this Agreement. 3. Reconfiguration Costs: (a)Acknowledgement of Obligations. Incumbent agrees that: (i)the cost estimate set forth in Schedule C (the "Cost Estimate") sets forth all of the work required to reconfigure Incumbent's existing facilities to comparable facilities that will operate on the Replacement Frequencies; (ii) after all of the work contemplated by the Cost Estimate has been performed in accordance with this Agreement and Nextel has paid all amounts required by this Agreement, the Incumbent's reconfigured system shall be deemed for all purposes of the Order to be "comparable" to Incumbent's existing system prior to Reconfiguration, and Nextel shall be deemed to have satisfied its obligations under the Order to pay the cost of relocating Incumbent's system from the Incumbent Frequencies to the Replacement Frequencies. (b)Payment Terms. In order to facilitate the Incumbent's transition to the Replacement Frequencies, Nextel will pay the costs incurred to reconfigure Incumbent's system in an amount not to exceed the Cost Estimate, except as modified pursuant to Section 3(b)(iii) and Section 8, of this Agreement, Nextel will pay the amount of the Cost Estimate in accordance with the payment terms identified on Schedule C and as set forth below for both payments made directly to Incumbent and payments made on behalf of Incumbent directly to each third party service vendor identified on the Cost Estimate("Vendor"). (i) Prior to the Closing Date, Incumbent will submit to Nextel documentation (including without limitation invoices, receipts, and timesheets or equivalent documentation) demonstrating the actual costs that Incumbent reasonably incurred or paid to other entities to reconfigure Incumbent's system ("Actual Costs"). Upon receipt by Nextel of documentation of the Actual Costs, Nextel and Incumbent will reconcile the Actual Costs against the payments made by Nextel to Incumbent and the Parties will agree upon the amount of any additional payments (subject to Section 8) due to Incumbent or any refunds due to Nextel. The date of receipt by Nextel of the Reconciliation Statement signed by Incumbent and Incumbent's counsel is the "Reconciliation Date." Should the parties be unable to agree upon the amount of the additional payments, the parties shall follow the resolution procedures detailed in the FCC Order. (ii) Any additional payments due to Incumbent from Nextel will be disbursed to Incumbent within thirty (30) days of the Reconciliation Date, provided the additional payments do not result from Actual Costs that exceed the Cost Estimate (in which case the provisions of Section 3(b)(iii) of this Agreement will apply). Any refunds due from the Incumbent to Nextel will be made within thirty (30) days of the Reconciliation Date. (iii) In the event Incumbent's Actual Costs exceed the Cost Estimate, Incumbent must submit a Change Notice pursuant to Section 8 of this Agreement describing the change in scope of work that resulted in Incumbent's Actual Costs exceeding the Cost Estimate. Approval of any Change Notice will not be automatic but will be processed in accordance with Section 8 of this Agreement. Additional payments due to Incumbent, which result from an excess of Actual Costs over the Cost Estimate, as agreed on the Reconciliation Date, will be disbursed to Incumbent within thirty(30) days of execution by the Parties of the Amendment documenting the approved changes from such Change Notice. Page 2 of 24 FRA Eden Prairie FINAL 06-01-07.doc (iv) Prior to the Closing Date, Nextel will pay on behalf of itself and Incumbent, both Parties' applicable sales and transfer taxes, if any, and all FCC fees in connection with the preparation and filing of the necessary FCC applications for the assignment(s) described in Section 2 of this Agreement. 4. Loaned Reconfiguration Equipment. If needed in order to facilitate the Incumbent's transition to the Replacement Frequencies, Nextel will loan any equipment identified in Schedule D as "Loaned Reconfiguration Equipment" and will provide any equipment identified in Schedule D as "Replacement Equipment". Nextel will deliver any Loaned Reconfiguration Equipment to Incumbent in accordance with Schedule D. Incumbent will fax to Nextel a bill of lading associated with each shipment of Loaned Reconfiguration Equipment and Replacement Equipment signed by an authorized representative of Incumbent acknowledging receipt of the Loaned Reconfiguration Equipment and Replacement Equipment in good working order. Any Loaned Reconfiguration Equipment will be returned to Nextel by Incumbent prior to the Reconciliation Date. 5. Retuning Cooperation: For purposes of this Section, the "Current Program Completion Date" shall mean June 26, 2008 or such other date as may be established by the FCC for the completion of the Reconfiguration. The Parties acknowledge that the number of frequencies and locations covered by this Agreement will require the Parties to cooperate closely in performing their respective reconfiguration activities. The Parties agree that: (i) as of the Effective Date, the Incumbent may begin the reconfiguration of its subscriber units, in accordance with the appropriate sections of Schedule C and Schedule D, (ii) Incumbent may commence such other activities associated with the reconfiguration of its system as further detailed on Schedule C as of the Effective Date; and (iii) the Parties will agree on a schedule to make the FCC filings, clear the Replacement Frequencies and decommission the Incumbent Frequencies (the "Schedule"). Depending on the timing of the adoption of this Schedule, it may require the submission of a Change Notice in accordance with Section 8 and/or an amendment to this Agreement, but in any event the Parties agree to adopt the Schedule no later than forty-five (45) days from the Effective Date of this Agreement or July 31, 2007, whichever is later, or such other date as the FCC may require (the "Scheduling Period"); provided, however, that in the event the completion date in the Schedule for the reconfiguration of Incumbent's system extends beyond the Current Program Completion Date, the completion date in the Schedule will be subject to FCC approval. If by the end of the Scheduling Period, no agreement on the Schedule has been reached by the Parties, the Parties will jointly seek resolution in accordance with the dispute resolution provisions of the Order, including dispute resolution procedures adopted by the Transition Administrator; as they may be amended from time to time. Nothing in this Section shall prohibit the Incumbent from beginning work immediately on replacement of the subscriber units and/or subscriber software programming. 6. Representations and Warranties: Each Party represents and warrants to the other as follows: (i) it is duly organized, validly existing and in good standing under the laws of the state of its incorporation; (ii) this Agreement has been duly authorized and approved by all required organizational action of the Party; (iii) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will conflict with, or result in any material violation or default under, any term of its articles of incorporation, by-laws or other organizational documents or any agreement, mortgage, indenture, license, permit, lease, encumbrance or other instrument, judgment, decree,order, law or regulation by which it is bound; Page 3 of 24 FRA Eden Prairie FINAL 06-01-07.doc (iv) it is the lawful and exclusive FCC licensee of its respective license(s) described in this Agreement, such licenses are valid and in good standing with the FCC, and it has the authority to request the FCC to assign,modify or cancel such licenses; (v) there is no pending or threatened action or claim that would have the possible effect of enjoining or preventing the consummation of this Agreement or awarding a third party damages on account of this Agreement; and (vi)to the best of its knowledge, all information provided to the other Party concerning the transactions contemplated by this Agreement is true and complete. All representations and warranties made in this Agreement shall survive the Closing Date (defined below) for two(2)years. 7. Covenants: From the Effective Date until the Closing Date (defined below), each Party will promptly notify the other Party upon becoming aware of any pending or threatened action by the FCC or any other governmental entity or third party to suspend,revoke,terminate or challenge any license described in this Agreement or to investigate the construction, operation or loading of any system authorized under such licenses. From the Effective Date until the Closing Date,Incumbent will not enter into any agreement resulting in, or otherwise cause, the encumbrance of any license for the Incumbent Frequencies, and Nextel will not enter into any agreement resulting in, or otherwise cause, the encumbrance of any of the Replacement Frequencies. 8. Changes: The Parties acknowledge that as the Reconfiguration of Incumbent's facilities proceeds in accordance with the work contemplated by the Cost Estimate, the need for changes to the scope of such work may arise. The Parties agree that their review of any such needed changes must be performed expeditiously to keep the work on schedule and that they will provide sufficient staff to manage changes. If either Party believes that a change to the work contemplated by the Cost Estimate is required(including changes by Vendors), such Party will promptly notify the other Party in writing. Such written notice (the "Change Notice") shall set forth (i) a description of the scope of the change to the work contemplated by the Cost Estimate believed to be necessary and (ii) an estimate of any increase or decrease in the Cost Estimate and in the time required to reconfigure Incumbent's existing facilities to operate on the Replacement Frequencies. A Party receiving a Change Notice shall immediately perform its own analysis of the need for and scope of the change and its impact on the Cost Estimate and schedule and negotiate the change in good faith with the other Party. After the Parties have agreed upon a change to this Agreement, they shall prepare a proposed amendment to this Agreement pursuant to Section 25 and submit to the Transition Administrator a copy of the proposed amendment together with a written request for its approval. Such request shall be accompanied by reasonable documentation supporting the need for and scope of the change and any proposed increase or decrease in the Cost Estimate and in the time required to reconfigure Incumbent's existing facilities to operate on the Replacement Frequencies. Incumbent is responsible for all unauthorized changes necessary as it relates to work performed by a Vendor on behalf of Incumbent. No change to the Cost Estimate, the work contemplated by the Cost Estimate or the time required to reconfigure Incumbent's existing facilities to operate on the Replacement Frequencies shall become effective until the Transition Administrator has approved the change in writing and both Parties have signed an amendment incorporating such approved change into this Agreement pursuant to Section 25. In this regard, in the event that the Transition Administrator is unable to approve the proposed amendment within ten (10) business days, then the deadline by which the Incumbent must clear all users from the Replacement Frequencies, pursuant to Section 5, will be automatically extended by the number of days beyond ten(10)business days in which the Transition Administrator does not take final action to approve the proposed amendment. Should the Transition Administrator not approve the proposed amendment, either Party may appeal the decision consistent with the FCC Order, in which event the deadline in Section 5 will be extended by the number of days it takes for such appeal to be resolved. Page 4 of 24 FRA Eden Prairie FINAL 06-01-07.doc If the Parties are unable to agree on modification of this Agreement consistent with the Change Notice, either Party may request mediation consistent with the FCC Order. Once mediation has been requested, the deadline in Section 5 will be extended by the number of days it takes for all appeals to be resolved. 9. Closing: The closing ("Closing") of the transactions contemplated by this Agreement will take place within thirty (30) days after (i) FCC approval of the assignment of the Incumbent Frequencies to Nextel and/or deletion of the Incumbent Frequencies from the Incumbent Licenses, (ii) FCC approval of the modification to add the Replacement Frequencies to the Incumbent Licenses with no material conditions or the creation of a new license for Incumbent with no material conditions that includes the Replacement Frequencies, (iii) notification by Incumbent to Nextel that the Incumbent Licenses have been cleared of all Incumbent users pursuant to Section 5 of this Agreement, (iv) delivery by Incumbent of all receipts, invoices and other documentation required to substantiate the Actual Cost and signing by Incumbent of documentation required to complete the Reconciliation similar to those identified on Exhibit B, (v) FCC approval of the modification and/or cancellation of the FCC licenses Nextel holds for the operation of 800 MHz frequencies that are co-channels of the Replacement Frequencies, to the extent required to meet the technical short-spacing requirements of Section 90.621(b) of the FCC's Rules, 47 C.F.R. § 90.621(b), as such rule may be amended from time to time by the FCC, (vi)the refund to Nextel or payment to Incumbent as described in Section 3(b)(ii), (if applicable) and (vii) the satisfaction of all other conditions specified in this Agreement(the"Closing Date"). 10. Closing Conditions: Performance of each Party's Closing obligations is subject to satisfaction of the following conditions (except to the extent expressly waived in writing by the other Party): (a)the continued truth and accuracy of the other Party's representations and warranties set forth in this Agreement; (b) all of the covenants of the other Party described in this Agreement are performed in all material respects; and (c) execution and delivery by the other Party of Closing documents as well as any other Closing instruments and documents either Party or its counsel may reasonably request. Incumbent will execute and deliver to Nextel a closing certification required by the Transition Administrator. (d) The Parties will cooperate in good faith and exercise their reasonable best efforts to finalize and execute these instruments and documents on or prior to the Closing Date in order to effect the Reconfiguration contemplated. 11. Review Rights: The books, records, documents, and accounting procedures and practices of the Parties relevant to this Agreement are subject to examination by Incumbent and either Legislative Auditor or the State Auditor for a period of six (6) years after the effective date of this Contract (Minn. Stat. Section 16C.05, subd. 5),Incumbent agrees to maintain records and other supporting evidence related to the costs that Incumbent has expended in connection with the Reconfiguration contemplated by this Agreement and that Nextel has paid or will pay to Incumbent pursuant to this Agreement. Incumbent agrees to maintain such records and make them reasonably available to the Transition Administrator for review or reproduction until eighteen (18) months after the date of Incumbent's executed Completion Certification required by this Agreement or for a longer period if Incumbent, for its own purposes, retains such records for a longer period of time. As used in this provision, "records"includes books, documents, accounting procedures and practices and other data regardless of type and regardless of whether such items are in written form, in the form of computer data or in any other form. Nextel shall be responsible for all post-Closing audit expenses of the Incumbent, except those expenses resulting from fraudulent activity on behalf of the Incumbent. To the extent that any post-Closing audit determines that Nextel paid Page 5 of 24 FRA Eden Prairie FINAL 06-01-07.doc a third-party vendor more than provided for under the FCC Order, Nextel's sole remedy is to seek reimbursement directly from the third-party vendor, unless such overpayment was the result of fraud or negligence of the Incumbent. 12. Excluded Assets; No Assumption of Liabilities: Nothing in this Agreement should be construed as a transfer or assignment from either Party to the other Party of any assets (including FCC licenses) except as expressly set forth in this Agreement. Other than as expressly provided in this Agreement, neither Party is obligated to assign and transfer to the other Party any asset, tangible or intangible,nor is either Party entitled to assume any asset,tangible or intangible. Neither Party is assuming, nor is either Party responsible for, any liabilities or obligations of the other Party arising out of or in connection with the other Party's licenses (or related systems and facilities) that are the subject of this Agreement. 13. Confidentiality: The terms of this Agreement and any proprietary, non-public information regarding the Incumbent Frequencies, Replacement Frequencies, Nextel's business and Incumbent's business must be kept confidential by the Parties and their employees, shareholders, agents, attorneys and accountants (collectively, "Agents"), which confidentiality will survive the Closing or termination of this Agreement for a period of two (2) years. The Parties acknowledge that Incumbent is required to comply with the Minnesota Government Data Practices Act (the "Act"), Minnesota Statutes Chapter 13, as it applies to any data received by the Incumbent in connection with this Agreement. Unless classified as "non-public. or "not public" by statute or temporary classification pursuant to §13.06, Incumbent may disclose public data in response to affirmative inquiries as may be required by the Act. Incumbent shall use its best efforts to provide Nextel with timely written notice of any requests submitted to the Incumbent pursuant to the Act for a copy of this Agreement, or any information received by the Incumbent in connection with this Agreement, to afford Nextel a practicable opportunity to seek a protective order or otherwise assert its interest in keeping the record confidential;provided,however that. this obligation to provide notice to Nextel will cease one year after the Closing.Nextel acknowledges and agrees that it shall abide at all times relevant to this Agreement by the Minnesota Data Practices Act, to the extent that the Act is applicable to data and documents in the hands or control of Nextel. The Parties may make disclosures (i) as required by law, (ii)to the Transition Administrator, (iii)to a manufacturer of Replacement Equipment to allow for the provisioning of that equipment to Incumbent (but only to the extent such disclosure specifically relates to that manufacturers equipment as identified on Schedule D); and (iv)to a Vendor(but only to the extent that such disclosure specifically relates to that Vendor's work and costs under this Agreement (as identified on Schedule C) as required to perform obligations under this Agreement.Nextel, Incumbent and their respective Agents may make disclosures regarding the terms of this Agreement to other public safety licensees and their Agents in accordance with the FCC Order, and WT Docket No. 02-55, adopted January 8, 2007. Each Party will cause all of its Agents,to the extent practicable,to honor the provisions of this Section. 14. Cooperation: The Parties will cooperate with each other and the Transition Administrator with respect to the Reconfiguration work contemplated by this Agreement. Without limiting the foregoing obligations, the Parties agree to cooperate in the preparation of any applications required to be filed with the FCC, and Incumbent agrees to provide reasonable access to its facilities so that the Transition Administrator may comply with any audit obligations and so any Reconfiguration work contemplated by this Agreement may be performed in accordance with the Cost Estimate and performance schedule. If a Party is subject to a denial of FCC benefits for delinquent non-tax debts owed to the FCC that would prevent or delay the timely processing of any FCC applications, such Party shall cure such delinquency in an expeditious manner and at its sole expense. 15. Indemnification: From and after the Closing Date, each Party (the "Indemnifying Party") will indemnify and defend the other Party, its officers, directors, employees and agents (collectively, the "Indemnified Party"), from and against all third party demands, claims, actions, losses, damages, Page 6 of 24 FRA Eden Prairie FINAL 06-01-07.doc liabilities, costs and expenses, including, without limitation, reasonable attorneys' fees and expenses (collectively, "Costs"), asserted against, imposed upon or incurred by the Indemnified Party arising from or related to: (i) any breach of any covenant, agreement, representation or warranty of the Indemnifying Party contained in, or made pursuant to, this Agreement; or(ii) any and all liabilities (including successor liabilities) or obligations relating to periods prior to the Closing Date resulting from the Indemnifying Party's operation of the system operated pursuant to the Incumbent Licenses or the Nextel Licenses, as applicable, or the ownership or use of those licenses, or any liabilities arising from or relating to the Indemnifying Party's employment, or termination of employment, of its employees. The obligations under this Section survive the Closing for a period of three(3)years. 16. Disputes: The Parties agree that any dispute related to the Replacement Frequencies, Nextel's obligation to pay any cost of the Reconfiguration of Incumbent's system contemplated by this Agreement, or the comparability of Incumbent's reconfigured system to Incumbent's existing system prior to Reconfiguration,which is not resolved by mutual agreement, shall be resolved in accordance with the dispute resolution provisions of the Order, including the dispute resolution procedures adopted by the Transition Administrator, as they may be amended from time to time. 17. No Gratuities: No gift, gratuity, credit, thing of value or compensation of any kind shall be offered or provided by either Party, directly or indirectly, to any officer, employee or official of either Party for the purpose of improperly obtaining or rewarding favorable treatment under this Agreement. 18. Liens: If any liens or security interests attach to any of Incumbent's facilities in favor of any vendor or service provider that is performing any Reconfiguration work contemplated by this Agreement as a result of Nextel's breach of any obligation to make direct payment (not in dispute)to such vendor or services provider,Nextel upon receipt of Notice from Incumbent will cooperate to remove any Liens. 19. Vendor Performance Issues: Incumbent will select and contract directly with any vendor or service provider performing work required to reconfigure the Incumbent's existing facilities to operate on the Replacement Frequencies. Neither the Transition Administrator nor Nextel will be responsible for, or assume the risk of any failure of that Vendor to perform its obligations under any contract entered into between Incumbent and such Vendor in connection with the Reconfiguration contemplated by this Agreement. 20. Replaced and Replacement Equipment: (a) If the reconfiguration of the Incumbent's existing facilities to operate on the Replacement Frequencies involves the replacement of any of Incumbent's existing equipment ("Replaced Equipment") with equipment provided by Nextel (as identified on Schedule D) or equipment the cost of which is being paid by Nextel pursuant to this Agreement as listed in Schedule C (collectively the "Replacement Equipment"), then (i) title to Replaced Equipment listed in Schedule D shall pass to Nextel at Closing free and clear of liens and any other encumbrances and Incumbent shall execute such documentation as Nextel may reasonably request to transfer title to Nextel, (ii)title to Replacement Equipment provided by Nextel will pass to Incumbent at Closing and Nextel shall execute such documentation as Incumbent may reasonably request to transfer title to Incumbent free and clear of liens, and (iii) Incumbent shall deliver the Replaced Equipment to Nextel at Nextel's cost, pursuant to Nextel's shipment instructions, and prior to the Reconciliation Date. (b) If Incumbent fails to return any item of the Replaced Equipment to Nextel, Incumbent must return to Nextel those items of the Replacement Equipment that would have replaced the Replaced Equipment not returned, prior to the Reconciliation Date. If Incumbent fails to return any item of the Replaced Equipment to Nextel under this Section 20(b) and a Product Typical Value is set forth in Schedule E for the item of Replacement Equipment then either: (i)Nextel will deduct the Product Typical Page 7 of 24 FRA Eden Prairie FINAL 06-01-07.doc Value (as set forth in Schedule E) for those items of Replacement Equipment provided to replace the Replaced Equipment not returned to Nextel (including tax (if any) and shipping) (the "Nextel Equipment Refund") from the final payment due to Incumbent after the Reconciliation; (ii) Incumbent must pay Nextel the Nextel Equipment Refund for those items of Replacement Equipment not returned to Nextel in accordance with Section 3(b)(ii) (if no final payment is due to Incumbent); or(iii) Nextel will deduct the portion of the Nextel Equipment Refund up to the value of the final payment due to Incumbent and Incumbent must pay Nextel the remaining Nextel Equipment Refund not covered by the final payment in accordance with Section 3(b)(ii) (If the final payment due Incumbent is less than the Nextel Equipment Refund), or (iv) Incumbent can purchase equipment identical to the Replacement Equipment from any source and send the equipment to Nextel prior to the Reconciliation Date. 21. Termination: This Agreement may be terminated and the transactions contemplated by this Agreement abandoned: (i) by mutual consent of the Parties provided in writing; (ii) for cause by either Party upon material breach of the other Party, following a thirty (30) day period for cure by the breaching Party following written notice of the breach; (iii) by Incumbent, in the event that a proposed amendment is not approved, pursuant to Section 8; or (iv) by Nextel prior to Closing in the event of any Adverse Decision affecting the Order by any governmental entity of competent jurisdiction. For purposes of this Agreement, an "Adverse Decision affecting the Order" means an order, decree, opinion, report or any other form of decision by a governmental entity of competent jurisdiction that results, in whole or part, in a stay, remand, or reversal of the Order, or otherwise in any revision to the Order that Nextel determines, in its sole discretion, to be adverse to its interests. In the event of termination, the Parties shall take all necessary action(including preparing and filing FCC documents)to return the status quo ante on the date of this Agreement. In the event of termination,Nextel shall pay all costs associated with the return to the status quo ante, as well as all Incumbent costs expended in the Agreement negotiations and implementation,except if such termination was due to an uncured material breach by Incumbent. Should Incumbent terminate this Agreement pursuant to subsection(iii),Incumbent shall not be released of its obligations under the Order. 22. Attorney's Fees: In any legal proceeding by a Party to enforce its rights under this Agreement against the other Party, the Party prevailing in such proceeding will be entitled to recover its reasonable attorney's fees and costs from the other Party. Page 8 of 24 FRA Eden Prairie FINAL 06-01-07.doc 23. Notices: All notices and other communications under this Agreement must be in writing and will be deemed given(i)the same day if delivered personally or sent by facsimile; (ii)the next business day if sent by overnight delivery via a reliable express delivery service; or(iii)after five(5)business days if sent by certified mail, return receipt requested, postage prepaid. All notices are to be delivered to the Parties at the following addresses: If to Incumbent,to: If to Nextel,to: City of Eden Prairie Nextel West Corp. 8080 Mitchell Road c/o Nextel Communications, Inc. Attn: George Esbensen,Fire Chief 2001 Edmund Halley Drive Eden Prairie,MN 55344 Reston,VA 20191 Phone: (952)949-8300 Attn: Heather P. Brown,Esq. Fax: (952) 949-8409 Phone: (703)433-4000 Fax: (703)433-4483 With a copy that shall not With a copy that shall not constitute Notice: constitute Notice: Alan S. Tilles,Esquire Nextel Communications,Inc. Shulman Rogers Gandal Pordy&Ecker,P.A. 6575 The Corners Parkway 11921 Rockville Pike, Third Floor Norcross, GA 30092 Rockville,Maryland 20852 Attn: William Jenkins,VP Spectrum Resources Phone: (301)231-0930 Phone: (770) 326-7484 Fax: (301)230-2891 Fax: (678)405-8252 24. Assignment: This Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns. Either Party may assign this Agreement to any direct or indirect subsidiary or affiliate of the Party,upon delivery of written notice to the other Party. 25. Amendments: This Agreement, including without limitation the scope of work contemplated hereby and the Estimated Cost thereof to be paid by Nextel, may be amended or modified only by a written instrument signed by authorized representatives of both Parties, provided, however, no amendment or modification to this Agreement shall become effective until approved by the Transition Administrator, or the FCC after an adverse decision by the Transition Administrator. 26. Benefits: This Agreement is for the benefit of the Parties and their successors and permitted assigns, and nothing in this Agreement gives or should be construed to give any legal or equitable rights under this Agreement to any person or entity, other than (i) the successors and assigns of the Parties, and (ii)the Transition Administrator as specifically provided in this Agreement. 27. Miscellaneous: If any provision(s) of this Agreement is held in whole or part, to be invalid, void or unlawful by any administrative agency or court of competent jurisdiction, then such provision(s) will be deemed severable from the remainder of this Agreement, will in no way affect, impair or invalidate any other provision contained in the Agreement and the Parties will use their commercially reasonable efforts to amend this Agreement to make the unlawful provision compliant with applicable law so as to preserve the rights and obligations of the Parties. No action taken pursuant to this Agreement should be deemed to constitute a waiver of compliance with any representation, warranty, covenant or agreement contained in this Agreement and will not operate or be construed as a waiver of any subsequent breach,whether of a similar or dissimilar nature. This Agreement, together with the Schedules, constitutes the entire understanding and agreement between the Parties concerning the subject matter of this Agreement, and supersedes all prior oral or written agreements or understandings. This Agreement is governed by the laws of the State of Minnesota without regard to conflicts of law principles thereof. This Agreement may be executed in one or more counterparts, including by facsimile, which will be effective Page 9 of 24 FRA Eden Prairie FINAL 06-01-07.doc as original agreements of the Parties executing the counterpart. In consideration of the mutual consideration set forth herein, this Agreement is effective as a legally binding agreement between the Parties upon execution by the Parties. INCUMBENT: NEXTEL: City of Eden Prairie Nextel West Corp. By: By: Name: Name: Its: Mayor Title: By: Name: Its: City Manager Page 10 of 24 FRA Eden Prairie FINAL 06-01-07.doc SCHEDULE A Incumbent Frequencies Incumbent Name: City of Eden Prairie Incumbent Assigns to Nextel: CALLSIGN Freqs. Licensee Location #of Exp. Lat(N) Long(W) Freq.s Date WNSF327 860.4875 Eden Prairie, Eden Prairie, 1 3/11/2014 44-51-36.9 93-27-39.8 City of MN WNSF327 860.7625 Eden Prairie, Eden Prairie, 1 3/11/2014 44-51-36.9 93-27-39.8 City of MN Page 11 of 24 FRA Eden Prairie FINAL 06-01-07.doc SCHEDULE B Replacement Frequencies Incumbent Name: City of Eden Prairie Nextel Assigns to Incumbent: Replacement Lat(N) Long(W) ERP Gnd Ant. New Licensee Location Frequencies (W) Elev Heigh (ft) t(ft) 854.2625 44-51-36.9 93-27-39.8 480 879 200 Eden Prairie, Eden Prairie, City of MN 854.6875 44-51-36.9 93-27-39.8 480 879 200 Eden Prairie, Eden Prairie, City of MN Page 12 of 24 FRA Eden Prairie FINAL 06-01-07.doc SCHEDULE C 800 MHZ RECONFIGURATION COST ESTIMATE—CERTIFIED REQUEST Incumbent's Name: Eden Prairie, City of Request for Reconfiguration Funding Pursuant to the Order, Incumbent is required to reconfigure its existing facilities and requests Nextel to fund the estimated reconfiguration costs included below: Incumbent Payment Terms : Nextel will pay Incumbent an amount not to exceed the Estimated Cost(s) for Incumbent with respect to each category of work, as set forth below. Nextel will pay Incumbent $159,013.39 within 15 days (30 days if Incumbent elects to be paid by check rather than electronic funds transfer) after receipt by Sprint Nextel of the fully executed Agreement and fully completed Incumbent Information Form (as set forth on Exhibit A). Nextel will pay any outstanding balance of the Actual Costs due to Incumbent within 30 days after the Reconciliation Date (as "Actual Costs" and "Reconciliation Date"are defined in Section 3(b)(i)). Vendor Payment Terms: Sprint Nextel will pay each Vendor an amount not to exceed the Estimated Cost(s) for that Vendor with respect to each category of work, as set forth below. Sprint Nextel will pay each Vendor within 30 days after receipt by Sprint Nextel of(A) an invoice from the Vendor and (B) Incumbent's approval of receipt of goods and services and approval of associated costs included on the Vendor invoice. 1. System Description: The primary system infrastructure is a 7-channel single site Multi-Net system plus two conventional repeaters operating at the Mitchell Road, Eden Prairie site. In addition the Multi-Net system has four(4) 7- channel receive-only sites located around the City of Eden Prairie and are connected to the Mitchell road site via leased lines. These sites are known as Flying Cloud,Baker water Tower,Hidden Pond and Bloomington. The 7 Multi-Net channels share a common transmit combiner and a common receiver multi coupler. The conventional repeaters use duplexers to connect to separate antennas. Channels 5 and 6 (860.4875 and 860.7625)are the existing expansion band channels that are being retuned. The major system elements to be reconfigured are summarized in the table below: pm Total In System Total Included in FRA Base station frequencies 7 7 -Voice channels 7 7 -Home/Control channels 1/1 1/1 Repeater sites 1 1 Other sites (remote recv,BDA) 4 4 Subscriber units retuned 80 80 Subscriber units reprogrammed Subscriber units replaced 982 982 Entities operating on the 1 1 system Page 13 of 24 FRA Eden Prairie FINAL 06-01-07.doc 2. Reconfiguration Milestones: Estimated Reconfiguration Task Duration in#of Days Reconfigure Subscriber 20 week duration Equipment Reconfigure Infrastructure 1 week duration Equipment System acceptance 1 week duration Remove pre-rebanding 4 weeks duration frequencies from subscriber radios 3. Implementation Plan: N/A 4. Cost Estimate: Description of Work To Be Performed Payee(separately Estimated Cost(s)for identify Incumbent and Incumbent and each each Vendor being paid Vendor(Not to exceed for work performed) listed amount) I. Subscriber retune cost Unistall/Install 1062 radios City of Eden Prairie 14800 Scenic Heights Rd Unistall:221 radios x 40 min ea x Eden Prairie,MN 55344 $13,295.35 $90.00/hr+221 units x$.16 material cost Mark Vandenberghe 952-949-8368 295 radios x 40 min ea x$90.00/hr+295 (Licensee) $17,746.60 units x$.16 material cost Install: 85 mobiles x 80 minutes= 113 $12,690.00 hours. 56 hours @ after hour rate of $135.00 hr. 57 regular hours @$90.00 hour. 136 mobiles=261.5 hours x$90.00. 99 $23,535.00 radios @ 80 min ea. 37 radios @ 210 minutes ea. 295 mobiles= 126.66 hours x$90.00/hr $11,400.00 Inventory/program new equipment first $59,259.60 touch: 36 min x 1062=637.2hrs+17.7 hours X$90.00/hr+material cost 1062 x $.30 Page 14 of 24 FRA Eden Prairie FINAL 06-01-07.doc Description of Work To Be Performed Payee(separately Estimated Cost(s)for identify Incumbent and Incumbent and each each Vendor being paid Vendor(Not to exceed for work performed) listed amount) Inventory/receipt new equipment second $30,267.00 touch: 19min x 1062 radios=336.3 hrs x $90.00/hr Remove old portables from service 546 x $24,657.36 30min=273 hours x$90.00/hr+$87.36 material cost Training: 520 employees x 4 hours x $87,360.00 $42.00per hour Repair training for Ascend portables 40 $4,600.00 hrs x$90.00/hr+$1,000.00 travel Testing: Interference, sound and audio $3,600.00 quality and STI coverage survey 40 hours x$90.00hr Program management @ 407.75 hours $23,295.77 @$54.68 per hour, 20 hours @$50.00 per hour Engineering $5,253.60 Consultant $1,066.50 Parts inventory( See subscriber equipment four(4)additional radios included to cover the $10,000.00 estimated parts cost) Contingency Eden Prairie $15,901.34 II. Infrastructure Equipment EF Johnson Company Reconfiguration 1440 Corporate Drive Irving, TX 75048-2401 Hardware 2000 PMGR upgrade 2008 Attn: Jim Cosgrave $6,661.00 repeater receiver exciter (Vendor) Infrastructure Services: System Engineering: 49 hrs @$175.00 8,575.00 Program Management: 80 hrs @$200.00 $16,000.00 Implementation $8,060.00 Freight $188.00 Travel&Living 13,750.00 Page 15 of 24 FRA Eden Prairie FINAL 06-01-07.doc Description of Work To Be Performed Payee(separately Estimated Cost(s)for identify Incumbent and Incumbent and each each Vendor being paid Vendor(Not to exceed for work performed) listed amount) Subscriber Equipment and Accessories: Qty Model Desc Unit price 60 242-5574-810-HA4 Port $1,925.00 $115,500.00 176 242-5575-810-HA4 Port $2,124.50 $373,912.00 186 242-5577-860-HA4 Port $1,960.00 $364,560.00 99 242-5576-860-HA4 Port $2,159.50 $213,790.50 195 242-5571-301-AAAB4 Mo $2,373.00 $462,735.00 226 242-5572-301-AAAB4 Mo $2,817.50 $636,755.00 44 242-5571-301-RAAB4 Mo $2,429.00 $106,876.00 22 589-0015-052 speaker mic $112.50 $2,475.00 85 589-0015-053 Amp Spk mic $344.60 $29,291.00 261 587-5100-360 Battery $75.00 $19,575.00 400 587-5100-361 Battery I/S $92.25 $36,900.00 432 250-5100-210 Charger Kit $112.50 $48,600.00 34 250-5100-240 charger Kit $412.50 $14,025.00 75 585-5100-120 Case $52.50 $3,937.50 3 023-5100-003 Port program $371.25 $1,113.75 4 TEC AT4-5059 PCD 4 $1,147.69 $4,590.76 185 250-0151-006 speaker $40.50 $7,492.50 3 250-5000-004 Mo Program $371.25 $1,113.75 40 585-4001-202 Power supply $221.25 $8,850.00 6 589-0012-021 desktop mic $86.25 $517.50 20 597-2002-245 cable $150.00 $3,000.00 Subscriber Services: Program Management 27 hrs x$200.00 $5,400.00 Training $ 6,240.00 Freight $19,929.00 Travel&Living $4,713.00 Contingency EF Johnson(Labor only) 5% $3,136.90 of$62,738.00 Legal Fees: Eden Prairie Gregerson,Rosow, $11,262.50 48 hours @ $200.00 per Johnson&Nilan,LTD 9.5 hours @$175.00 Attorneys at Law 650 Third Avenue South Suite 1600 Minneapolis,MN 55402- 4337 612-338-0755 Attn: Richard Rosow Page 16 of 24 FRA Eden Prairie FINAL 06-01-07.doc Description of Work To Be Performed Payee(separately Estimated Cost(s)for identify Incumbent and Incumbent and each each Vendor being paid Vendor(Not to exceed for work performed) listed amount) Legal Fees: Shulman,Rogers, Gandal, Shulman,Rogers, Gandal, $19,742.24 Pordy&Ecker,P.A. Pordy&Ecker,P.A. 33.2 hours @$325.00 11921 Rockville Pike, 25.4 hours @ $215.00 Suite 300 .4 hours @$175.00 Rockville,Maryland 8.5 hours @$400.00 20852-2743 Telephone$21.24 301-230-5200 Attn: Laura Smith Total Estimated Costs $2,913,195.80 Certification Pursuant to the Order,Incumbent hereby certifies to the Transition Administrator appointed pursuant to the Order that the funds requested above are the minimum necessary to provide Incumbent reconfigured facilities comparable to those presently in use. Incumbent further certifies,to the best of Incumbent's knowledge,that any vendor costs listed on Schedule C are comparable to costs that vendor previously charged Incumbent for similar work. Signature: Print Name: Title: Phone Number: E-mail Date: Page 17 of 24 FRA Eden Prairie FINAL 06-01-07.doc SCHEDULE D 1)Replacement Equipment(provided by Nextel) Quantity Manufacturer Description Model Number New/Used 28 EF Johnson Receiver 023-4400-501 Used 28 EF Johnson Exciter 023-4400-501 Used 28 International Crystal Receive EFJ 8000 521-8XXXXXX New Crystal Manufacturing 28 International TCXO Transmit EFJ 8000 518-8XXXXXX New Crystal Manufacturing 28 EF Johnson ICOM TX 518-8XXXXXX Used 2)Replaced Equipment(to be delivered to Nextel prior to Closing) Quantity Manufacturer Description Model Number 30 EF Johnson Portable,Ascend, Series 2,IS,limited keypad 5586 164 EF Johnson Portable,Avenger,full keypad 8160 60 EF Johnson Portable,Avenger,limited keypad 8160 45 EF Johnson Portable,Avenger,IS,full keypad 8161 5 EF Johnson Portable,Viking,IS,limited keypad 8561/8563 12 EF Johnson Portable,Viking,full keypad 8585/8587 54 EF Johnson Portable,Viking,IS,full keypad 8586/8588 151 EF Johnson Portable,Viking,IS,limited keypad 8586/8588 10 EF Johnson Mobile,Ascend,Series 2,remote mount 5582 64 EF Johnson Mobile,dash mount 8615/8616 68 EF Johnson Mobile,remote mount 8620 131 EF Johnson Mobile,Summit,dash mount 9753/9755 148 EF Johnson Mobile,Summit,remote mount 9754/9756 19 EF Johnson Control station, Summit,no remote control 9753/9755 4 EF Johnson Control station, Summit,+remote control 9753/9755 17 EF Johnson Control station+remote control 8615/8616 22 EF Johnson Avenger speaker microphone 85 EF Johnson Viking speaker microphone 186 EF Johnson Avenger battery 150 EF Johnson Avenger IS battery 75 EF Johnson Viking battery 250 EF Johnson Viking IS battery 255 EF Johnson Avenger charger 14 EF Johnson Avenger 5 unit charger 175 EF Johnson Viking charger 14 EF Johnson Viking 5 unit charger 25 EF Johnson Avenger Leather case 50 EF Johnson Viking leather case 3 EF Johnson Portable programming kit 1 EF Johnson Alexander 2006 battery analyzer 1 EF Johnson Alexander MZ6500 conditioning analyzer 185 EF Johnson Mobile remote speaker 3 EF Johnson Mobile programming kit 40 EF Johnson Power supply, 11 amp, 120 volt 6 EF Johnson Desktop microphone 20 EF Johnson Extended Option Cable Page 18 of 24 FRA Eden Prairie FINAL 06-01-07.doc SCHEDULE E Product Typical Values The Product Typical Values for Replacement Equipment shall be: a. for Replacement Equipment set forth on Schedule C,the cost shown on Schedule C for the item of Replacement Equipment; or b. for Replacement Equipment comprising EF Johnson 5100& 5300 series radios and associated accessories,the most recent list price as of the date a reconciliation statement is sent to Incumbent by Nextel,less 25%. In lieu of paying the Product Typical Value as stated above,Incumbent can purchase equipment identical to the Replacement Equipment from any source and send the equipment to Nextel prior to the Reconciliation Date. Page 19 of 24 FRA Eden Prairie FINAL 06-01-07.doc Exhibit A Incumbent Information The following questions are required for processing Electronic Funds Transfers and if Incumbent wants Nextel to complete the FCC filings on its behalf All information contained herein shall be kept strictly confidential and will be used only in completion of the Frequency Reconfiguration transaction. I.INCUMBENT INFORMATION Please provide the following information: Company/Name: Contact: Title: Address: City/State/Zip: Phone: Fax: If not identified in the contract,please provide the following: If Incumbent is a Partnership,please provide name,address and phone numbers of all other partners: Name: Name: Address: Address: City/State/Zip: City/State/Zip: Phone: Phone: II.BANK ACCOUNT INFORMATION(Required for payment via electronic funds transfer.) Name of Bank: Address of Bank: City/State/Zip: Bank Phone#: ABA(Routing#): Account#: Name on Account: Federal, State or Individual SS#: Name of Brokerage Firm(if applicable): Brokerage Account#(if applicable): In the event Incumbent will not provide information for electronic funds transfer, Incumbent acknowledges that all payments made by check will be mailed within thirty (30) days of the date of performance required by Incumbent(for each payment) as stipulated in the Agreement. Acknowledged by Incumbent: (signature required only if Incumbent does not want an electronic funds transfer) Page 20 of 24 FRA Eden Prairie FINAL 06-01-07.doc III.TAX INFORMATION The Internal Revenue Service and state tax authorities require Nextel to report all transactions, even if the transaction is exempt from taxation (if so, it will be reported to the IRS as a like-kind exchange). Therefore, it is necessary for Nextel to collect the information below. If you have specific questions about your tax implications in this transaction, you should consult your own accountant or financial advisor. Incumbent's Federal, State or Individual Tax ID#, FEIN(Federal) or SSN(individuals): State(s)—sales tax license,resale permit, employment, etc.): Local(if applicable): Current State and County location for your principal executive office: If there has been more than one location for the principal executive office within the past five(5) years, list each such City/County/State location: IV.REGULATORY INFORMATION Would you like Nextel's Regulatory department to prepare and file all necessary FCC paperwork on your behalf? Yes / No If yes,please provide the following Universal If no,please provide the following information Licensing System("ULS")information for your regarding who will take care of the preparation and licenses: filing of all necessary FCC paperwork on your behalf: FRN(FCC Registration Number): Contact Name: Organization: ULS PASSWORD: Address: City: Contact Representative for any FCC related issues: State/Zip: Name: Phone Number: Email Address: Phone Number: Page 21 of 24 FRA Eden Prairie FINAL 06-01-07.doc I hereby acknowledge that all of the information provided herein is true and correct as of the date signed below. Incumbent Signature: Print Name: Title: Date: Page 22 of 24 FRA Eden Prairie FINAL 06-01-07.doc EXHIBIT B Reconciliation Documentation Certification of Labor Rates Incumbent hereby certifies that the information provided herewith for the Frequency Reconfiguration Agreement dated with Nextel("FRA") is true and complete to the best of Incumbent's knowledge. Incumbent further certifies that the reimbursed rate/s listed in the attached invoice(s), if any, have been determined in accordance with the TA's policy on Incumbent Labor Rates as documented at http://www.800ta.org/content/PDF/policy/IncumbentLaborRatePolicv.pdf as of the date of this statement. The Incumbent acknowledges that all costs incurred and/or charged by Incumbent, if any, are subject to the Review Rights (as that term is defined in the FRA with Nextel) of the TA. Incumbent agrees to the foregoing calculations (without changes) in accordance with the terms of the FRA. Incumbent Name: Related Invoice#'s: Signature: Name: Title: Date: Page 23 of 24 FRA Eden Prairie FINAL 06-01-07.doc INCUMBENT INTERNAL REBANDING COSTS Pursuant to the Frequency Relocation Agreement made the day of , 2006 by and between Incumbent Name and Nextel Name, I, ("Incumbent") verify and acknowledge that all goods/services identified in Schedule C for completion by the Incumbent and referenced below have been performed. Description of Work Hours or Units Cost per Hour or Total Cost Done completed Unit Mobile/Portable xxx $$$ $xxx.xx Radios Retunes Repeaters Retuned $xxx.xx Combiners Retuned $xxx.xx Install,verify •xxx.xx operation&remove temporary equipment Field service $xxx.xx preplanning support, Frequency Review, Develop Transition Plan,Testing Project Management, $xxx.xx SOW Preparation,Cost Estimates,Contract Negotiations, Engineering Support and preplanning meeting,transition planning,coordination of personnel Engineering non-labor $xxx.xx travel costs(Travel to/from,rental car, hotel) Other $xxx.xx TOTAL $xxx.xx By: Name Title: Phone Number: Date: Page 24 of 24 FRA Eden Prairie FINAL 06-01-07.doc CITY COUNCIL AGENDA DATE: SECTION: Director of Public Works June 5, 2007 DEPARTMENT/DIVISION: ITEM DESCRIPTION: I.C. 07-5691 ITEM NO.: XIV.E.1. Rodney Rue Approve Plans and Specifications and Public Works/Engineering Order Advertisement for Bids for the Technology Drive Streetscape/ Landscape Project Requested Action Move to: Approve plans and specifications and order advertisement for bids for I.C. 07-5691, Technology Drive Streetscape/Landscape Project. Synopsis These plans include tree replacement, streetscape/landscape features and irrigation improvements along Technology Drive. The Mitchell Road and Technology Drive project, completed in 2006, included streetscape/landscape features. These features were removed from that road construction contract with staff committing to review these elements and to prepare a plan that creates a more "walkable communities" standard. The roadway project did include converting the concrete medians to brick-style pavers. Background Information With the removal of the streetscape/landscape features from the roadway project and using Utility Construction Funds to finance trunk watermain improvements, approximately $133,000 is available for this project from the final assessment amount to ADC. In addition, $150,000 was included in the 2006 CIP for landscaping on Technology Drive/Mitchell Road. This provides a total budget for the streetscape/landscape of$283,000. The current estimate is approximately $250,000, plus consulting fees of approximately $25,000. If the project does over-run, we propose to use some "demonstration money" from the Water Surcharge Funds to finance part of the unique irrigation features that are being proposed,which are expected to reduce water usage by30-70%.