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City Council - 07/19/2011
AGENDA CITY COUNCIL WORKSHOP & OPEN PODIUM TUESDAY,JULY 19, 2011 CITY CENTER 5:00—6:25 PM, HERITAGE ROOM II 6:30—7:00 PM, COUNCIL CHAMBER CITY COUNCIL: Mayor Nancy Tyra-Lukens, Council Members Brad Aho, Sherry Butcher Wickstrom, Kathy Nelson, and Ron Case CITY STAFF: City Manager Rick Getschow, Police Chief Rob Reynolds, Fire Chief George Esbensen, Public Works Director Robert Ellis, Community Development Director Janet Jeremiah, Parks and Recreation Director Jay Lotthammer, Communications Manager Joyce Lorenz, City Attorney Ric Rosow, and Recorder Lorene McWaters Heritage Room H I. FIRE DUTY CREW Council Chamber II. KARTHIK RAMANATHAN—COMMUNITY CENTER TRESPASS NOTICE III. JEFF STRATE—BIRCH ISLAND WOODS PARKING LOT IV. DOUG LIND —BIRCH ISLAND WOODS PARKING LOT V. ADJOURNMENT FIRE spy Ho"OH Het.1967 EDEN PRAIRIE MINNESOTA DUT)rCREW FIRE spy FIONOH - _ _ t - " Duty Crew" �- Het.1967 it; a PRAIRIE �� qP MINNESOTA Method Significantly Improve Providing an environment of Predictability ustomers Onmascene Time J - FIRE spy FIONOH PFF How It Works Het.1967 EDEN > Existing Staff Works Scheduled "Shifts" at each Fire PRAIRIE MINNESOTA Station times* > Shi�fts are short to allow Flexibility v"Sh'ift lengths are 3A> Two FF's per Station , 8 FFs on at all > Shifts are Bid 30 days in advance > Resource Intensive Customers Get resources onmscene 4 minutes faster than cu rrent syste m �- Eden Prairie Fire Department Merged Response Times Response Time Zones(Mins) C 0 05 FIRE Customer Benefits Het.1967 " IF EDEN continued PRAIRIE ;, MINNESOTA > Golden % H�our more likely Pis w/Extrication > Most Fatal Fires 2300 to 0400 hrs, currently our most challenging Response time > Modern Construction and contents burn faster and hotter than ever before. (Class B Fires i A FIRE DUTY HONOR Plymouth Het.1967 -_ Study PRAIRIE MINNESOTA FIRE spy FIONOH Commander Benefits - Het.1967 PRAIRIE MINNESOTA Known Resource Response = Better Strategy and Tactics Decisions Firefighter Safety Improved by Getting On�scene Earlier, Before Structural Integrity Compromised IR Incident Stabilization Occurs Faster FIRE spy FIONOH _Benefits Het.1967 Firefighter PRAIRIE MINNESOTA );> Recruitment and Retention Improved as a Result of: v'Fewer unscheduled responses **'Schedule known 30 Days in Advance */More Family Friendly Commitment );> Helps Insure Sustainability of partNQ time Firefighter Force. �> Annual Savings FIRE spy FIONOH Het.1967 PRAIRIE Other Benefits MINNESOTA to Improved and flexible response More opportunities for Fire Prevention Efforts **'Young Children medicals Additional Onahand Inspection Resource **'Proplans 'Into CAD **'On,asite follow,,up **'W e nio rs Cost � 2012 JulyRADecember Additional $ 140,000 F> 2013 dull Year Additional $260,000 FIRE spy HONOR Sub�urbs Het.1:,Cther J PRAIRIE MINNESOTA Plymouth �> Bloomington Brooklyn M i n J n ka > Hopkins Rosevi Eagan FIRE DUTY H0,10 Het.1967 EDEN PRAIRIE MINNESOTA AGENDA EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY,JULY 19, 2011 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Nancy Tyra-Lukens, Council Members Brad Aho, Sherry Butcher Wickstrom, Kathy Nelson, and Ron Case CITY STAFF: City Manager Rick Getschow, Public Works Director Robert Ellis, City Planner Michael Franzen, Community Development Director Janet Jeremiah, Parks and Recreation Director Jay Lotthammer, City Attorney Ric Rosow and Council Recorder Jan Curielli I. ROLL CALL/CALL THE MEETING TO ORDER II. COLOR GUARD/PLEDGE OF ALLEGIANCE III. COUNCIL FORUM INVITATION IV. PROCLAMATIONS /PRESENTATIONS A. VETERANS MEMORIAL TASK FORCE RECOGNITION V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS VI. MINUTES A. COUNCIL WORKSHOP HELD TUESDAY,JUNE 14, 2011 B. CITY COUNCIL MEETING HELD TUESDAY,JUNE 14, 2011 VII. REPORTS OF ADVISORY BOARDS & COMMISSIONS VIII. CONSENT CALENDAR A. CLERK'S LICENSE LIST B. APPROVE CONTRACT WITH MINNESOTA DEPARTMENT OF EMPLOYMENT & ECONOMIC DEVELOPMENT (DEED) FOR BUSINESS DEVELOPMENT INFRASTRUCTURE GRANT FOR VALLEY VIEW ROAD/PRAIRIE CENTER DRIVE ROAD IMPROVEMENT PROJECT C. AWARD CONTRACT FOR BUILDING RESTORATION REPAIRS (CAULKING, TUCKPOINTING, SEALANTS, BLOCK & BRICK REPAIR, CONCRETE, ETC.) TO RESTORATION SYSTEMS,INC. D. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH WSB & ASSOCIATES INC. FOR CONSTRUCTION PHASE SERVICES FOR THE VALLEY VIEW ROAD/PRAIRIE CENTER DR. INTERSECTION SERVICES CITY COUNCIL AGENDA July 19, 2011 Page 2 E. APPROVE EDEN PRAIRIE ROAD (CR 4) FLASHING YELLOW ARROW CONVERSION PROJECT F. AWARD CONTRACT FOR CHEROKEE TRAIL UTILITY RELOCATION PROJECT TO G.F. JEDLICKI, INC. G. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH SRF CONSULTING GROUP, INC. FOR UNITEDHEALTH GROUP DEVELOPMENT SITE PLAN REVIEW IX. PUBLIC HEARINGS/MEETINGS A. VACATION OF EASEMENT FOR ROAD PURPOSES IN SOUTHEAST QUARTER OF SECTION 21, TOWNSHIP 116, RANGE 22, HENNEPIN COUNTY (Resolution) B. GRAND HAVEN AT MARSH COVE by Marsh Cove, LLC. Request for Guide Plan Change from Church to Low Density Residential on 6.41 acres and from Church to Parks and Open Space on 5.21 acres, Planned Unit Development Concept Review on 11.62 acres, Planned Unit District Review on and Zoning District Change from Public to R1-13.5 on 6.41 acres, Preliminary Plat on 11.62 acres into 16 lots and 1 outlot. Location: 17850 Duck Lake Trail. (Resolution for Guide Plan Change; Resolution for PUD Concept Review; Ordinance for PUD District Review and Zoning District Change; Resolution for Preliminary Plat) C. METROPOLITAN FORD CAR DEALERSHIP by Thomas Grossman Family L.P. Request for Planned Unit Development Concept Review on 16.2 acres, Planned Unit District Review on and Zoning District Amendment in the C-Reg- Ser Zoning District on 16.2 acres, Site Plan Review on 16.2 acres, Preliminary Plat on 16.2 acres into two lots. Location: 12475 Plaza Drive. (Resolution for PUD Concept Review; Ordinance for PUD District Review and Zoning District Amendment; Resolution for Preliminary Plat) D. UNITED HEALTH GROUP GUIDE PLAN CHANGE by United Health Group. Request for Guide Plan Change from High Density Residential to Office on 19 acres and neighborhood commercial to Office on 4.5 acres and Regional Commercial to Office on 4.2 acres. Location: Hwy 62 and Shady Oak Road. (Resolution for Guide Plan Change) X. PAYMENT OF CLAIMS XI. ORDINANCES AND RESOLUTIONS A. APPROVE 1ST READING OF AN ORDINANCE AMENDING CITY CODE CHAPTER 10 RELATING TO ELECTRICAL INSPECTIONS CITY COUNCIL AGENDA July 19, 2011 Page 3 B. APPROVE 2' READING OF AN ORDINANCE AMENDING CITY CODE CHAPTER 10 RELATING TO ELECTRICAL INSPECTIONS AND ADOPT RESOLUTION APPROVING SUMMARY ORDINANCE C. ADOPT RESOLUTION RECEIVING AND ACCEPTING FEASIBILITY REPORT, RECEIVING AND APPROVING 100% PETITION,AND ORDERING IMPROVEMENT AND PREPARATION OF PLANS AND SPECIFICATIONS FOR PUBLIC IMPROVEMENT FOR TRAIL ADJACENT TO BEARPATH GOLF AND COUNTY CLUB D. ADOPT RESOLUTION APPROVING AND LEVYING SPECIAL ASSESSMENTS AGAINST PROPERTY OWNED BY BEARPATH GOLF AND COUNTRY CLUB LIMITED PARTNERSHIP AS IDENTIFIED IN THE RESOLUTION XII. PETITIONS, REQUESTS AND COMMUNICATIONS XIII. APPOINTMENTS XIV. REPORTS A. REPORTS OF COUNCIL MEMBERS B. REPORT OF CITY MANAGER C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR D. REPORT OF PARKS AND RECREATION DIRECTOR E. REPORT OF PUBLIC WORKS DIRECTOR 1. Approve Plans and Specifications and Order Request for Quotes for East Staring Lane Watermain Extension 2. Adopt Resolution Awarding Construction Contract for Valley View Road/Prairie Center Drive Intersection Improvements F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY XV. OTHER BUSINESS XVI. ADJOURNMENT ANNOTATED AGENDA DATE: July 15, 2011 TO: Mayor and City Council FROM: Rick Getschow, City Manager RE: City Council Meeting for Tuesday, July 19, 2011 TUESDAY,JULY 19, 2011 7:00 PM, COUNCIL CHAMBER I. ROLL CALL/CALL THE MEETING TO ORDER II. COLOR GUARD/PLEDGE OF ALLEGIANCE III. OPEN PODIUM INVITATION Open Podium is an opportunity for Eden Prairie residents to address the City Council on issues related to Eden Prairie city government before each Council meeting, typically the first and third Tuesday of each month, from 6:30 to 6:55 p.m. in the Council Chamber. If you wish to speak at Open Podium,please contact the City Manager's office at 952.949.8412 by noon of the meeting date with your name, phone number and subject matter. If time permits after scheduled speakers are finished, the Mayor will open the floor to unscheduled speakers. Open Podium is not recorded or televised. If you have questions about Open Podium, please contact the City Manager's Office. IV. PROCLAMATIONS /PRESENTATIONS A. VETERANS MEMORIAL TASK FORCE RECOGNITION Synopsis: On March 8, 2006, the City Council voted to appoint 17 members to the Veterans Memorial Task Force. Additionally, the Council moved to authorize hiring a planning firm to assist the citizen's task force in selecting a site and developing a schematic plan for a Veterans Memorial at a cost not to exceed $10,000; and furthermore, that this committee would be responsible for fundraising all of the costs for any project that is recommended, including all design fees. Based on the Veteran's Memorial being complete and that a significant portion of the design and construction funds have been raised, the following are the goals and intent of this Council Item: 1. Recognize the accomplishments and efforts by the task force. 2. Recognize the completion of the Veterans Memorial. 3. Affirm the desire of a citizens group to conduct an annual recognition event at the Veterans Memorial at Purgatory Creek Park. 4. Overview future fundraising efforts. 5. Recognize and formalize responsibility for future care and maintenance of the memorial. Based on conversations with Veterans Memorial Task Force Chair Mr. Kevin Rofidal, there is a group of volunteers who would like to continue to conduct a Memorial Day event to support, promote and fundraise for the Veterans Memorial. There are several ANNOTATED AGENDA July 19, 2011 Page 2 current examples of how this group could form such as; Friends of the Eden Prairie Art Center, Historical Society, Lions Club, Rotary, etc. The City of Eden Prairie would assist the group by reserving Purgatory Creek Park at no charge. Under state statute 465.03 GIFTS TO MUNICIPALITIES, the City of Eden Prairie is authorized to solicit and accept donations towards the care and maintenance of the Veterans Memorial. Donations are considered to be tax deductable. City staff would develop a web page and promotional material that allows future inscriptions and contributions to be made. The policies developed by the committee would be followed and modified as needed over time. City staff is in the process of receiving bids from contractors to install six additional flag poles. The Veterans Memorial Committee would like to see this happen if adequate funds exist in their account that is maintained with the Eden Prairie Community Foundation. It is hoped that the current balance will be able to fund the flags and have money left to turn over to the City of Eden Prairie for deposit in the perpetual care account. MOTIONS: Move to: Recognize the members of the Veterans Memorial Task Force for their significant accomplishments. Move to: Authorize staff to create a care and maintenance fund to account for donations and expenditures towards the ongoing maintenance of the Veterans Memorial. Move to: Authorize staff to reserve at no cost, Purgatory Creek Park for a Memorial Day Celebration. V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS MOTION: Move to approve the agenda. VI. MINUTES MOTION: Move to approve the following City Council minutes: A. COUNCIL WORKSHOP HELD TUESDAY,JUNE 14, 2011 B. CITY COUNCIL MEETING HELD TUESDAY,JUNE 14, 2011 VII. REPORTS OF ADVISORY BOARDS & COMMISSIONS VIII. CONSENT CALENDAR MOTION: Move approval of items A-F on the Consent Calendar. ANNOTATED AGENDA July 19, 2011 Page 3 A. CLERK'S LICENSE LIST B. APPROVE CONTRACT WITH MINNESOTA DEPARTMENT OF EMPLOYMENT & ECONOMIC DEVELOPMENT (DEED) FOR BUSINESS DEVELOPMENT INFRASTRUCTURE GRANT FOR VALLEY VIEW ROAD/PRAIRIE CENTER DRIVE ROAD IMPROVEMENT PROJECT C. AWARD CONTRACT FOR BUILDING RESTORATION REPAIRS (CAULKING, TUCKPOINTING, SEALANTS, BLOCK & BRICK REPAIR, CONCRETE, ETC.) TO RESTORATION SYSTEMS, INC. D. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH WSB & ASSOCIATES INC. FOR CONSTRUCTION PHASE SERVICES FOR THE VALLEY VIEW ROAD/PRAIRIE CENTER DR. INTERSECTION SERVICES E. APPROVE EDEN PRAIRIE ROAD (CR 4) FLASHING YELLOW ARROW CONVERSION PROJECT F. AWARD CONTRACT FOR CHEROKEE TRAIL UTILITY RELOCATION PROJECT TO G.F. JEDLICKI, INC. G. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH SRF CONSULTING GROUP, INC. FOR UNITEDHEALTH GROUP DEVELOPMENT SITE PLAN REVIEW IX. PUBLIC HEARINGS/MEETINGS A. VACATION OF EASEMENT FOR ROAD PURPOSES IN SOUTHEAST QUARTER OF SECTION 21, TOWNSHIP 116, RANGE 22, HENNEPIN COUNTY (Resolution) Official notice of this public hearing was published in the June 30, 2011, Eden Prairie News and sent to 1 property owner. Synopsis: The Property Owner has requested the vacation of an easement for road purposes in the Southeast Quarter of Section 21, Township 116, Range 22 to facilitate the building of a garage addition. The Property Owner has consented to grant the City a new easement for watermain purposes over their property to replace the easement proposed to be vacated. City Staff have reviewed this request and determined that there are no existing or future needs for this easement after receiving the new watermain easement and it can be vacated. TAOTION: Move to: • Close the public hearing; and • Adopt the resolution vacating an easement for road purposes in the Southeast Quarter of Section 21, Township 116, Range 22, Hennepin County, Minnesota. ANNOTATED AGENDA July 19, 2011 Page 4 B. GRAND HAVEN AT MARSH COVE by Marsh Cove, LLC. Request for Guide Plan Change from Church to Low Density Residential on 6.41 acres and from Church to Parks and Open Space on 5.21 acres, Planned Unit Development Concept Review on 11.62 acres, Planned Unit District Review on and Zoning District Change from Public to R1-13.5 on 6.41 acres, Preliminary Plat on 11.62 acres into 16 lots and 1 outlot. Location: 17850 Duck Lake Trail. (Resolution for Guide Plan Change; Resolution for PUD Concept Review; Ordinance for PUD District Review and Zoning District Change; Resolution for Preliminary Plat) Official notice of this public hearing was published in the July 7, 2011, Eden Prairie News and sent to 87 property owners. Synopsis: This is a 16 lot single-family residential project. The project requires a Guide Plan change from Church to Low Density Residential on 6.41 acres, and from Church to Park/Open Space on 5.21 acres. The project requires 40 Planned Unit Development waivers from the City code related to lot size, lot width, street frontage, setbacks, and cul-de-sac length. A change in land use to Low Density Residential, and Parks/Open space would be consistent with the low density and parks land use pattern in the area. Leaving the site guided as Church would also be compatible. As a church, the site does have capacity for a larger building of 82,000 sq. ft., a 600 seat sanctuary, and 200 parking spaces. The proposed PUD waivers are as follows: • Lot Size - Eight lots are less than 13,500 sq. ft. • Lot Width—Four lots are less than 85 ft. • Lot Frontage — Ten lots have frontage on the street less than 85 ft., 55 ft. on the radius of the cul-de- sac. • Front Yard Setback—Three lots have less than a 30 ft. front setback • Side Yard Setbacks — Fourteen lots have less than 10 ft side yard//total 25 ft. both combined. • Cul-de-sac Length—Exceeds 500 ft The smaller street frontages combined with houses setbacks greater than the 30 foot minimum reduces the back yard space. Proposed homes along the east side are at a 39 foot minimum setback and a 57 foot average setback. In the subdivision to the east, existing homes are at a 15 foot minimum setback and an 85 foot average setback. Proposed homes along the west side are at a 44 foot minimum setback and a 50 foot average setback. In the subdivision to the west, existing homes are at a 48 foot minimum setback and a 70 foot average setback.The 120-Day Review Period Expires on September 2, 2011. The June 10, 2011, staff report to the Planning Commission recommended that the project be continued with direction to revise the plan to conform to City code requirements. The Planning Commission voted 6-0 to recommend approval of the ANNOTATED AGENDA July 19, 2011 Page 5 project as submitted with the change in the guide plan and the 40 waivers from the City code related to lot size, lot width, street frontage, setbacks, and cul-de-sac length. IAOTION: Move to: • Close the Public Hearing; and • Adopt the Resolution for Guide Plan Change from Church to Low Density Residential on 6.41 acres, and from Church to Park/Open Space 5.21 acres; and • Adopt the Resolution for Planned Unit Development Concept Review on 11.62 acres; and • Approve 1st Reading of the Ordinance for Planned Unit Development District Review with waivers on 11.62 acres, and Zoning District Change from Public to R1-13.5 on 6.41 acres; and • Adopt the Resolution for Preliminary Plat on 11.62 acres into 16 lots, 1 outlot, and right-of-way; and • Direct Staff to prepare a Development Agreement incorporating Staff and Commission recommendations and Council conditions. C. METROPOLITAN FORD CAR DEALERSHIP by Thomas Grossman Family L.P. Request for Planned Unit Development Concept Review on 16.2 acres, Planned Unit District Review on and Zoning District Amendment in the C-Reg-Ser Zoning District on 16.2 acres, Site Plan Review on 16.2 acres, Preliminary Plat on 16.2 acres into two lots. Location: 12475 Plaza Drive. (Resolution for PUD Concept Review; Ordinance for PUD District Review and Zoning District Amendment; Resolution for Preliminary Plat) Official notice of this public hearing was published in the July 7, 2011, Eden Prairie News and sent to 16 property owner. Synopsis: The project includes modifying the existing Suburban Chevrolet building to add a car wash and change the exterior of the front of the building. The project also includes the construction of 39,750 square foot Ford building. Waivers are needed for a zero lot line setback to parking and increased outdoor display. The planned unit development waivers are: Lot 1 (Metropolitan Ford) 1. A PUD waiver for a 0-foot setback to parking from the common lot line. A cross- access easement is required for the shared driveway. This is a common waiver in commercial projects with a common lot line. 2. Outside Storage and Display of 186% of the base area of the building City code permits up to 6% of the base area of the building which is 1,892 square feet. 58,800 square feet is proposed. The outdoor storage area will be screened with existing trees. The city has previously approved waivers for permanent outdoor display for the entire 16.2 acres as part of the 1990 approved plan. ANNOTATED AGENDA July 19, 2011 Page 6 Lot 2 (Suburban Chevrolet) 1. A PUD waiver for a 0-foot setback to parking from the common lot line. A cross- access easement is required for the shared driveway. This is a common waiver in commercial projects with a common lot line. 2. Outside Storage and Display of 96% of the base area of the building. City code permits up to 6% of the base area of the building which is 3,324 square feet. 53,000 square feet is proposed. The outdoor storage area will be screened with existing trees. The city has previously approved waivers for permanent outdoor display for the entire 16.2 acres as part of the 1990 approved plan. The 120-Day Review Period Expires on September 22, 2011. This project was scheduled for the June 13, 2011 meeting. The applicant sent a letter to the commission requesting a continuance. The Commission did not discuss item and voted to continue the project at the request of the applicant to the June 27, 2011 meeting. The Planning Commission voted 5-0 to recommend approval of the project at the June 27, 2011, meeting,based on revised plans with no white paint on the brick on the existing Suburban Chevrolet building. MOTION: Move to: 1W • Close the Public Hearing; and • Adopt the Resolution for Planned Unit Development Concept Review on 16.2 acres; and • Approve 1st Reading of the Ordinance for Planned Unit Development District Review with waivers, and Zoning District Amendment in the C- Reg-Ser District on 16.2 acres; and • Adopt the Resolution for Preliminary Plat on 16.2 acres into 2 lots; and • Direct Staff to prepare a Development Agreement incorporating Staff and Commission recommendations and Council conditions; and • Approve and Authorize Issuance of a Grading Permit for the Metropolitan Ford 2011 project subject to release by the City Engineer upon determination that the final contract documents conform to plans stamp dated July 12, 2011, as approved by the City Council; and • Approve and Authorize Issuance of a footing and foundation permit for the Metropolitan Ford Project subject to release by the Chief Building Official that the building permit conforms to plans stamp dated July 12, 2011, as approved by the City Council. ANNOTATED AGENDA July 19, 2011 Page 7 D. UNITED HEALTH GROUP GUIDE PLAN CHANGE by United Health Group. Request for Guide Plan Change from High Density Residential to Office on 19 acres and neighborhood commercial to Office on 4.5 acres and Regional Commercial to Office on 4.2 acres. Location: Hwy 62 and Shady Oak Road. (Resolution for Guide Plan Change) Official notice of this public hearing was published in the July 7, 2011, Eden Prairie News and sent to 122 property owners. Synopsis: The change in the guide plan from high density residential and commercial to office will allow UHG to build a 1,497,000 office campus. Reasons to change the guide plan are as follows. 1. Create an office campus with 6,700 hundred jobs. 2. Provide jobs in close proximity to the future light rail station. 3. Create a smaller building footprint to reduce impervious surface by 8 acres compared to the approved plan 4. Increase wetland protection and wetland mitigation. 5. Improve water quality. 6. The environmental impacts are consistent with the approved AUAR document. 7. Road improvements have been identified to accommodate projected traffic. 8. Total building is 87,400 sf. less than the approved plan. 9. The compact site development allows more open space to be preserved. 10. Tree removal is 15% compared to the approved plan at 28% The 2008 Developer Agreement for the approved plan identified a number of transportation improvements that were the responsibility of the Developer. Based on the draft traffic study which shows increased Daily, AM and PM peak hour traffic all of the previously identified transportation improvements are still necessary. The draft traffic study also identified several additional transportation improvements that will be needed to support full build out of the proposed development. • Shady Oak Road widening under Highway 62 (Developer full responsibility) • Shady Oak Road/West 62nd Street Intersection Improvements: (Developer full responsibility) • Shady Oak Road/City West Parkway (north) Intersection Improvements: (Developer full responsibility) • Shady Oak Road Improvements between City West Parkway intersections: (Developer partial responsibility) • Shady Oak Road/City West Parkway (south) Intersection Improvements: (Developer full responsibility) • TH 212/ Shady Oak Road Interchange Improvements (Developer partial responsibility) • HOV Bypass /Slip Ramp to Highway 62 (Developer partial responsibility) • Shady Oak Road Trail between West 62nd Street and north City West Parkway intersection (Developer full responsibility) ANNOTATED AGENDA July 19, 2011 Page 8 • On-site improvements including the full reconstruction of West 62nd Street and intersection improvements at the site access points to West 62nd Street and City West Parkway (Developer full responsibility) The 2008 Developer Agreement and approved plan accommodated the proposed Southwest light rail. The plan showed public parking, a station, the light rail line, public auto access and public pedestrian access. These items are not shown on the current plan but will need to be accommodated to the same extent as part of the application for zoning, pud amendment, site plan, and plat. Public access for a trail and or sidewalk should be provided to through the site as direct a connection as possible between City West Parkway and the proposed station site. • UHG is responsible for accommodating light rail to the same extent as the 2008 Developer Agreement as part of the application for zoning, pud amendment, site plan, and plat. In addition, a direct public access for a trail and or sidewalk between City West Parkway and the proposed station site is required. In 2001 an AUAR was approved by the City. The AUAR was amended in 2008.An AUAR or Alternative Urban Area Review is an alternative form of environmental review similar to that of an EAW,but must provide for a level of analysis comparable to that of an EIS for determining associated impacts. The AUAR is valid 2013. Staff has compared the proposed plan to the 2001 and 2008 AUAR documents. The plan impacts are similar and there is mitigation for the change in traffic. The AUAR does not need to be formally amended. The 120-Day Review Period Expires on October 23, 2011. The Planning Commission voted 4-0-1 to recommend approval of the project at the June 27, 2011 meeting. MOTION: Move to: • Close the Public Hearing; and • Adopt the Resolution for Guide Plan Change from Guide Plan Change from High Density Residential to Office on 19 acres; Neighborhood Commercial to Office on 4.5 acres; and Regional Commercial to Office on 4.2 acres; and • Direct Staff to prepare a Development Agreement incorporating Staff and Commission recommendations and Council conditions. X. PAYMENT OF CLAIMS MOTION: Move approval of the Payment of Claims as submitted (Roll Call Vote). ANNOTATED AGENDA July 19, 2011 Page 9 XI. ORDINANCES AND RESOLUTIONS A. APPROVE 1ST READING OF AN ORDINANCE AMENDING CITY CODE CHAPTER 10 RELATING TO ELECTRICAL INSPECTIONS Synopsis: The State government shutdown has temporarily discontinued electrical permit issuance and inspections within our city. The shutdown will result in an eventual work stoppage of the majority of the building construction projects currently underway and projects not yet undertaken, causing a significant hardship to both contractors and our residents. Minnesota Statutes permit political subdivisions to issue permits and perform inspections when authorized by ordinance. The proposed ordinance permits issuance of electrical permits, provides for permit fees, and authorizes electrical inspections. Permits will be issued through PIMS utilizing existing staff. Arrangements have been made to contract with our current inspector to continue City electrical inspections. Staff's intent is to return to the use of State issued permits and inspections once the shutdown is resolved. MOTION: Move to approve 1st reading of an Ordinance amending City Code Chapter 10 relating to electrical inspections. B. APPROVE 2n READING OF AN ORDINANCE AMENDING CITY CODE CHAPTER 10 RELATING TO ELECTRICAL INSPECTIONS AND ADOPT RESOLUTION APPROVING SUMMARY ORDINANCE Synopsis: See Item XI.A. MOTION: Move to approve 2nd reading of an Ordinance amending City Code Chapter 10 relating to electrical inspections and adopt Resolution approving Summary Ordinance. C. ADOPT RESOLUTION RECEIVING AND ACCEPTING FEASIBILITY REPORT, RECEIVING AND APPROVING 100% PETITION,AND ORDERING IMPROVEMENT AND PREPARATION OF PLANS AND SPECIFICATIONS FOR PUBLIC IMPROVEMENT FOR TRAIL ADJACENT TO BEARPATH GOLF AND COUNTY CLUB Synopsis: In 1993, the City of Eden Prairie entered into a Developer's Agreement with Bearpath Golf and Country Club Limited Partnership (Bearpath). Required by the development agreement was the construction of the trails depicted. The Agreement required the developer to construct the trail generally from Riley Lake Road northerly to the proposed U.S. Highway 212 along the westerly line of the Bearpath development. The trail has been part of the city's overall plan for its trail system at least since 1993 when Bearpath was developed. Agreement has been reached with Bearpath for the City to construct the trails and to assess the cost, up to $300,000.00, against property owned by Bearpath. ANNOTATED AGENDA July 19, 2011 Page 10 The proposed trail will be an eight foot wide bituminous trail extending approximately 4500 feet. The trail project initiates approximately 70 feet east of the Riley Creek crossing on the North side of Riley Lake road. The trail is situated primarily on City right-of-way,but portions of the trail will be located on property owned by Bearpath Golf and Country Club Limited Partnership. Bearpath has granted the City a Trail Easement which has been filed with the County Recorder and County Registrar of Titles. No other outside approvals or consents are necessary for construction of the trail. For the trail project to proceed City Council approval of the project and award of a contract for construction is necessary. The Planning Commission passed a Resolution on July 11, 2011, finding the trail in conformance with the comprehensive plan. City staff has worked with design and engineering consultants and used prices from recent trail projects to estimate the cost of this project. Based upon the cost of recent trail projects, it is estimated that the cost of this project will be $300,000.00. Bearpath has signed an Agreement to Special Assessment and Waiver whereby it agrees to pay 100% of the cost of the trail improvement up to $300,000. MOTION: Move to: Adopt the Resolution receiving and accepting Feasibility Report, receiving and approving 100% Petition, ordering Improvement and preparation of Plans and Specifications for public improvement for trail adjacent to Bearpath Golf and Country Club. D. ADOPT RESOLUTION APPROVING AND LEVYING SPECIAL ASSESSMENTS AGAINST PROPERTY OWNED BY BEARPATH GOLF AND COUNTRY CLUB LIMITED PARTNERSHIP AS IDENTIFIED IN THE RESOLUTION Synopsis: See item XLC. MOTION: Move to adopt Resolution approving and levying Special Assessments against property owned by Bearpath Golf and Country Club Limited Partnership as identified in the Resolution. XII. PETITIONS, REQUESTS AND COMMUNICATIONS XIII. APPOINTMENTS XIV. REPORTS A. REPORTS OF COUNCIL MEMBERS B. REPORT OF CITY MANAGER C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR D. REPORT OF PARKS AND RECREATION DIRECTOR ANNOTATED AGENDA July 19, 2011 Page 11 E. REPORT OF PUBLIC WORKS DIRECTOR 1. Approve Plans and Specifications and Order Request for Quotes for East Staring Lane Watermain Extension Synopsis: In anticipation of the vacation approval of a roadway easement document(Vacation#11-01), the Engineering Division has prepared plans and specifications for a watermain connection/extension from East Staring Lane to an existing watermain stub off of Victoria Drive. The vacation approval of the roadway easement was contingent upon the property owner granting a drainage and utility easement to the City for the purpose of constructing this watermain connection/extension. We anticipate obtaining all the necessary permanent and temporary easements for the watermain extension, as well as receiving quotes for the project prior to the August 16, 2011 City Council meeting. With contract approval in August, we expect to complete this project by the end of September 2011. This project will be financed by the Water Capital Fund. MOTION: Move to approve plans and specifications and order request for quotes for I.C. 11-5796, East Staring Lane Watermain Extension project. 2. Adopt Resolution Awarding Construction Contract for Valley View Road/Prairie Center Drive Intersection Improvements Synopsis: Sealed bids were received Thursday July 14, 2011 for this project. Four bids were received and are summarized in the attached Consultant Recommendation Letter. The low bid in the amount of$489,593.40 was submitted by Northwest Asphalt, Inc. and is 16% below the Engineer's Estimate. Staff has reviewed the bids and recommends awarding the contract for the project to Northwest Asphalt, Inc. in the amount of$489,593.40. The planned improvements to the Valley View Road/Prairie Center Drive intersection provide additional vehicle capacity by providing a right turn lane and a second left-turn lane on the east(Valley View Road) approach to the intersection. The project includes the complete reconstruction of Valley View Road to the east of Prairie Center Drive and a new traffic signal at the Valley View Road/Prairie Center Drive intersection. As part of the improvements the new traffic signal will include Flashing Yellow Arrow left turn signal indications. Construction of the project is currently scheduled to occur in August and September of this year and will take approximately 5 weeks to complete. In order to most efficiently construct the improvements Valley View Road will be closed during construction of the project. The total project costs for the Valley View Road/Prairie Center Drive Intersection Improvements are currently estimated at$775,000. The City has been awarded a $275,000 grant from the Department of Employment and ANNOTATED AGENDA July 19, 2011 Page 12 Economic Development's (DEED) Innovation Business Development Public Infrastructure Program to help fund the project. The remainder of the project will be paid using TIF funds. MOTION: Move to adopt resolution awarding construction contract for I.C. 10-5782 (Valley View Road / Prairie Center Drive Intersection Improvement Project) to Northwest Asphalt, Inc. F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY XV. OTHER BUSINESS XVI. ADJOURNMENT MOTION: Move to adjourn the City Council meeting. CITY COUNCIL AGENDA DATE: SECTION: Proclamations and Presentations July 19, 2011 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: W.A. Jay Lotthammer, Director, Veterans Memorial Parks and Recreation Motion Move to: Recognize the members of the Veterans Memorial Task Force for their significant accomplishments. Move to: Authorize staff to create a care and maintenance fund to account for donations and expenditures towards the ongoing maintenance of the Veterans Memorial. Move to: Authorize staff to reserve at no cost, Purgatory Creek Park for a Memorial Day Celebration. Synopsis On March 8, 2006, the City Council voted to appoint 17 members to the Veterans Memorial Task Force. Additionally, the Council moved to authorize hiring a planning firm to assist the citizen's task force in selecting a site and developing a schematic plan for a Veterans Memorial at a cost not to exceed $10,000; and furthermore, that this committee would be responsible for fundraising all of the costs for any project that is recommended, including all design fees. Based on the Veteran's Memorial being complete and that a significant portion of the design and construction funds have been raised, the following are the goals and intent of this Council Item: 1. Recognize the accomplishments and efforts by the task force. 2. Recognize the completion of the Veterans Memorial. 3. Affirm the desire of a citizens group to conduct an annual recognition event at the Veterans Memorial at Purgatory Creek Park. 4. Overview future fundraising efforts. 5. Recognize and formalize responsibility for future care and maintenance of the memorial. Based on conversations with Veterans Memorial Task Force Chair Mr. Kevin Rofidal, there is a group of volunteers who would like to continue to conduct a Memorial Day event to support, promote and fundraise for the Veterans Memorial. There are several current examples of how this group could form such as; Friends of the Eden Prairie Art Center, Historical Society, Lions Club, Rotary, etc. The City of Eden Prairie would assist the group by reserving Purgatory Creek Park at no charge. Under state statute 465.03 GIFTS TO MUNICIPALITIES, the City of Eden Prairie is authorized to solicit and accept donations towards the care and maintenance of the Veterans Memorial. Veterans Memorial July 19, 2011 Page 2 Donations are considered to be tax deductable. City staff would develop a web page and promotional material that allows future inscriptions and contributions to be made. The policies developed by the committee would be followed and modified as needed over time. City staff is in the process of receiving bids from contractors to install six additional flag poles. The Veterans Memorial Committee would like to see this happen if adequate funds exist in their account that is maintained with the Eden Prairie Community Foundation. It is hoped that the current balance will be able to fund the flags and have money left to turn over to the City of Eden Prairie for deposit in the perpetual care account. Background On March 8, 2006, the City Council voted to appoint 17 members to the Veterans Memorial Task Force. Additionally, the Council moved to authorize hiring a planning firm to assist the citizen's task force in selecting a site and developing a schematic plan for a Veterans Memorial at a cost not to exceed $10,000; and furthermore, that this committee would be responsible for fundraising all of the costs for any project that is recommended, including all design fees. The first phase of construction began in October of 2007 and was completed in time for Veterans Day. This phase included three flags and a small plaza. The next phases included the granite walls and two of the three statues. At the July 15, 2008 City Council meeting, a proposal was presented to the City Council to begin the next phase of construction. This phase would substantially complete the memorial. It was expressed to the Council that the contract exceeded the amount of funds raised. It was also expressed that the Task Force intended to continue to fundraise; however, it was becoming more difficult to gain contributions. The City Council authorized the contract for construction and work was undertaken that completed the memorial. Attachments List of Task Force Members Suggested Scenarios Chart Adding Names to the Wall Committee Members John Mallo, Chair, Vietnam-era Veteran Robert Grant, Vice Chair, Vietnam Veteran Mary Anne Bryndal, Secretary, wife of Veteran John Menden, Treasurer Steve Steele, Fundraising Chair, Vietnam-era Veteran Eric Ahlstrom, Desert Storm Veteran James Bevilacqua Jr., Desert Storm Veteran William Cochrane, Vietnam Veteran, Purple Heart Recipient& Bronze Star Medal Duane Cox, Vietnam Veteran, Aviator Bill Dobbins, Vietnam Veteran Lou Ellingson, Vietnam Veteran, Swift Boat Captain Richard Fey, father of Veteran Tyler Fey, killed in Iraq Dick Foley, Vietnam Veteran Elizabeth Grant, daughter of Vietnam Veteran Ed Holt, Vietnam-era Veteran, Retired Army National Guard Tommy Johnson, Vietnam-era Veteran Kevin Rofidal, Memorial Committee Webmaster, U.S. Coast Guard Reservist Toby Sarahan, U.S. Army 1988-1992 Tim Sather, Vietnam Veteran, Purple Heart Recipient(2) Bud Schwartz, World War II Veteran Ernie Shuldhiess, Vietnam Veteran, E.P. Historical Society Carol Steehler, mother of Veteran, Tom Steehler Marie Wittenberg, wife of Korean War Veteran, E.P. Historical Society Travis Wuttke, grandson of WWII Veteran Suggested Scenarios Item Current Status Future Direction Proposed Action Task Force Status On March 8, 2006 the City Council voted to appoint 17 Officially recognize the completion City Council recognition residents to the Veterans Memorial Task Force. of the Memorial and work and and thank at the July City Additionally,the Council moved to authorize hiring a efforts of the Task Force. Council meeting. planning firm to assist the citizen's task force in selecting a site and developing a schematic plan for a Veterans If needs arise in the future,the City Memorial at a cost not to exceed $10,000; and Council can determine the need for furthermore,that this committee would be responsible for re-establishing a task force. fundraising all of the costs for any project that is recommended, including all design fees. Potential Ongoing During the time of the Task Force, a group of committed If volunteers wish to continue Council authorization to Volunteer Group individuals similar or close to the appointed Task Force activities to support fundraising for reserve Purgatory Creek conducted activities and efforts.The committee has an on-going maintenance and Park at no charge. established web site and support from the Eden Prairie engraving and conduct a Memorial Foundation as a fiscal agent. Day event, the City will reserve Purgatory Creek Park on Memorial Day at no cost. Maintenance Needs/ Memorial construction is complete and a substantial City staff will maintain and engrave City Council to establish a Future Engraving amount of funds have been raised.There is a current deficit on the memorial. Money currently special fund for the of$ in the project fund. with the Foundation would be Veterans Memorial to be transferred to the City. used for ongoing Task Force Members have been collecting funds and maintenance and repair. coordinating the inscriptions with the granite company. Fundraising efforts and Ongoing maintenance of City Staff has been coordinating and implementing the promotional material to be the plantings and irrigation planting plan, irrigation and electrical needs and repairs. changed to indicate that payments surrounding the memorial should be made to the City of Eden will be funded through the Prairie (they are tax deductible). Parks and Recreation annual operating budget. Adding a Name to the Wall Veterans Wall - Remember and honor those who served our country by having their name added to the Eden Prairie Veterans Memorial. This memorial will stand in perpetuity to honor and preserve the names of men and women who unselfishly served our country. The memorial will be a testimonial of eternal gratitude to all those who have served, to those currently serving and to those who have given their lives in service. The memorial will honor service and is dedicated to peace, liberty, freedom and security. The service member to be listed need not have served directly in a named war or conflict,but must have served in the U.S. military. Names will be engraved in the granite walls of the memorial. YOU DON'T NEED TO BE FROM EDEN PRAIRIE TO BE LISTED ON THIS MEMORIAL - We welcome all Veterans. Honor Wall - Our country has fought many wars in far reaching places. As a result of war, many have paid the ultimate sacrifice, including those from Eden Prairie. Our goal is to pay tribute to those from Eden Prairie that have laid down their life in order to ensure our freedom. UNAPPROVED MINUTES ITEM NO.: VLA. CITY COUNCIL WORKSHOP & OPEN PODIUM TUESDAY,JUNE 14, 2011 CITY CENTER 5:00—6:25 PM, HERITAGE ROOM II 6:30—7:00 PM, COUNCIL CHAMBER CITY COUNCIL: Mayor Nancy Tyra-Lukens, Council Members Brad Aho, Sherry Butcher Wickstrom, Kathy Nelson, and Ron Case CITY STAFF: City Manager Rick Getschow, Police Chief Rob Reynolds, Fire Chief George Esbensen, Interim Public Works Director Rod Rue, Community Development Director Janet Jeremiah, Parks and Recreation Director Jay Lotthammer, Communications Manager Joyce Lorenz, City Attorney Siira Gunderson, and Recorder Lorene McWaters Heritage Room H I. 2012-2013 BUDGET DISCUSSION City Manager Rick Getschow reviewed the City's recent budget history, which included a $1,000,000 shortfall in 2009, employee wage freeze in 2010 and $679,682 in service reductions in 2011. Getschow also reviewed efficiencies and cost savings staff has implemented. Getschow said staff has accelerated the budget timeline this year to provide the City Council with ample time for analysis and discussion. Staff will be scheduling individual briefings with Council Members to answer questions and provide more detailed information. The preliminary levy will be set by the City Council at their September 6 meeting and the final budget will be adopted on December 20. Getschow identified a number of goals that staff used in developing the preliminary budget proposal. They include: • Enhancing service levels in public safety and the maintenance of infrastructure • Preserving all other services at current levels • Sustaining employee morale and engagement • Inspiring creativity, innovation and strategic thinking • Preserving Eden Prairie's exceptional image, internally and externally Getschow said that with even with no increases in compensation or programs, the 2012 budget would increase by 1.4 percent due to inflation,higher fuel prices, and other costs outside the control of the City. A two percent wage increase would result in a 3.1 percent budget increase. The addition of a fire duty crew and two police officers would result in a 4.4 percent increase. A 4.4 percent budget increase would translate into a 1.7 to 2.2 percent levy increase. Getschow said these figures assume a$1.3 million deficit for each of the next three years, which would potentially be covered by the budget stabilization fund. Getschow said he would like to see the City's budget strategy more closely align revenue projections with actual expenditures, with the budget stabilization fund being City Council Workshop Minutes June 14, 2011 Page 2 used only if necessary. Getschow said the Budget Advisory Commission is studying capital funding strategies and is expected to report back to the City Council later this year. There was general consensus among the Council Members that the projected depletion of the budget stabilization fund needs to be addressed. Council Member Aho said the City needs to reverse the trend of balancing the budget by using the budget stabilization fund; however,he noted that the public has little appetite for tax increases. Council Member Nelson said it will take a number of years to address the shortfall. Mayor Tyra-Lukens asked for background on salary increases in recent years. Finance Manager Sue Kotchevar said City salaries were frozen in 2010. The two percent increase in 2011 was comparable to that of similar cities. Nelson said she wants to make sure staff continues to strive for innovation and continues to watch spending closely,but she sees the need to increase revenue a bit. Aho said the City Council still needs to have a discussion about service levels. Case said it looks like the levy may need to be increased in order to keep things at the same level of quality. Tyra-Lukens noted that every candidate in the 2010 Council election said they were in favor of the proposed fire duty crew. She said she feels there needs to be a community dialog on levels of service. Case said the question the City Council must answer is whether they want to balance the budget by lowering service levels or by increasing revenues. Council Member Butcher said it will be important to remember that incrementalism is one of the City's values. Case said he would like staff to continue to look at where efficiencies can be implemented. Council Chamber II. OPEN PODIUM III. ADJOURNMENT UNAPPROVED MINUTES ITEM NO.: VLB. EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY,JUNE 14, 2011 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Nancy Tyra-Lukens, Council Members Brad Aho, Sherry Butcher Wickstrom, Ron Case, and Kathy Nelson CITY STAFF: City Manager Rick Getschow, Interim Public Works Director Rod Rue, Community Development Director Janet Jeremiah, Parks and Recreation Director Jay Lotthammer, City Attorney Siira Gunderson and Council Recorder Jan Curielli I. ROLL CALL/CALL THE MEETING TO ORDER Mayor Tyra-Lukens called the meeting to order at 7:00 PM. II. COLOR GUARD/PLEDGE OF ALLEGIANCE III. COUNCIL FORUM INVITATION IV. PROCLAMATIONS /PRESENTATIONS A. EDEN PRAIRIE PLAYERS PROCLAMATION Reed Schulke, representing the Eden Prairie Players, thanked the Council for their support the past 20 years. He reviewed the activities and future plans of the group. Tyra-Lukens asked how the group solicits the scripts for the original one act play program. Mr. Schulke said they use an online service and that information is then shared among playwrights around the world. Tyra-Lukens read a proclamation proclaiming June 17, 2011 to be Community Theater Day. B. PRESENTATION OF POLICE LETTER OF RECOGNITION Police Chief Reynolds said Police Department letters of recognition are being presented to two citizens who stopped a suspect in a purse snatching incident on May 17, 2011. He read the letter and presented copies to John Finch and Joseph Passofaro to recognize their efforts in the incident. C. CONSERVATION COMMISSION GREENSTEP CITIES PROGRAM PRESENTATION (Resolution 2011-45) Regina Rojas said the Conservation Commission has evaluated the requirements to participate in the GreenStep Cities program. She introduced the commission Chair, Laura Jester. Ms Jester introduced the members of the commission present and CITY COUNCIL MINUTES June 14,2011 Page 2 gave a PowerPoint presentation on the GreenStep Cities program. She said Minnesota GreenStep Cities is a new, voluntary challenge and assistance program managed by the Minnesota Pollution Control Agency (MPCA) to help cities achieve their sustainability goals through implementation of 28 best practices. The program was developed by a coalition of several partners and is specific to Minnesota. The best practices are tailored to all Minnesota cities, focus on cost savings and energy use reduction, and encourage innovation. Eden Prairie needs to implement 16 out of 28 best practices to complete the program. The program offers peer learning opportunities and allows flexibility in planning, programming and implementation of the best practices. Jester said the program grew out of the Mayors' Climate Protection Agreement that was signed by the City several years ago. She said completing the program would showcase Eden Prairie as a leader in the area of conservation and would recognize the accomplishments of the City's 20-40-15 plan. She reviewed the five components of the program's best practices: land use; transportation;building and lighting; environmental management; and economic and commercial development. Jester said Karen Kurt, Human Resources Manager, researched this program as part of her Master's degree program. Ms Kurt analyzed where Eden Prairie would be if the program were to be implemented. She believes the City has done 13 of the 16 required best practices, although that has not yet been approved by the MPCA since we have not yet joined the program. Jester reviewed the best practices required and discussed the ones the commission believes may have already been completed. The commission would develop a work plan to implement the best practices if the Council approves the resolution tonight. She said some staff time would be required for participation in the program, but her understanding is the department directors believe this would be a benefit to the community and the environment. Aho asked if there is an estimate in terms of the impact on staffing and the cost to the City to implement the program. Rojas said we have not done a cost analysis as part of the research,but we believe it could be done with current staff time and could actually result in some reductions in costs to the City as the 20-40-15 program has done. Nelson asked if we would continue the 20-40-15 program while we do this, as she would not like to see that process stopped. Jester said this is just an extension of that program, and we would get recognition for what we have done in that program. Butcher Wickstrom said it sounds like a wonderful program and seems to be an extension of what we have been doing. Case asked who determines if we have met the best practices. Rojas said there is a lot more detail provided by Ms Kurt's analysis of where we would fit. One particular item could be filled by something as simple as a change of wording for the zoning code. She said we would submit documentation to the MPCA and they would decide if we have met the criteria. Case said it seems to be a nice way to organize what we have done, and he thanked the commission for their efforts. CITY COUNCIL MINUTES June 14,2011 Page 3 Tyra-Lukens said this is something near and dear to her heart, and it would be hard to believe we haven't met most of the criteria. She hoped there are some things we have to do that will cause us to stretch a bit. Jester said the Conservation Commission feels the same way and may ask to go a step further in some of the best practices. Tyra-Lukens said she noted there has been some discussion about recycling in the commission minutes. Jester said the GreenStep Cities program does not address everything we would like it to address, and the program is mostly about energy conservation. The commission is extremely committed to increasing recycling rates in this City, and is working on that area. Case noted there is mention of solid waste reduction under the category of environmental management. MOTION: Case moved, seconded by Butcher Wickstrom, to adopt Resolution 2011-45 authorizing the City of Eden Prairie to participate in the Minnesota GreenStep Cities Program. Motion carried 5-0. V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Tyra-Lukens added Item XIV.B.1. Impact of Possible State Shutdown. MOTION: Nelson moved, seconded by Aho, to approve the agenda as amended. Motion carried 5-0. VI. MINUTES A. COUNCIL WORKSHOP HELD TUESDAY, MAY 17, 2011 MOTION: Aho moved, seconded by Case, to approve the minutes of the City Council workshop held Tuesday, May 17, 2011, as published. Motion carried 5-0. B. CITY COUNCIL MEETING HELD TUESDAY, MAY 17, 2011 MOTION: Butcher Wickstrom moved, seconded by Nelson, to approve the minutes of the City Council meeting held Tuesday, May 17, 2011, as published. Motion carried 5-0. VII. REPORTS OF ADVISORY BOARDS & COMMISSIONS VIII. CONSENT CALENDAR A. CLERK'S LICENSE LIST B. REDSTONE AMERICAN GRILL by Jim Sultany. Second Reading of Ordinance 8-2011-PUD-4-2011 for Planned Unit Development District Review on 2.97 acres and Zoning District Amendment within the Commercial Regional Service Zoning District on 2.97 acres, Resolution 2011-46 for Site Plan Review on 2.97 acres. Location: 8000 Den Road. (Ordinance No. 8-2011-PUD-4-2011 for CITY COUNCIL MINUTES June 14,2011 Page 4 PUD District Review and Zoning District Amendment; Resolution No. 2011-46 for Site Plan Review) C. APPROVE ELECTION EQUIPMENT CONTRACT BETWEEN HENNEPIN COUNTY, CITY OF EDEN PRAIRIE & SCHOOL DISTRICT 272 D APPROVE ANNUAL REPORT FOR THE NPDES STORMWATER PERMIT PROGRAM E. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH WENCK ASSOCIATES FOR ANNUAL STORMWATER POND INVENTORY PROGRAM F. ADOPT RESOLUTION NO. 2011-47 APPROVING PLANS AND SPECIFICATIONS AND ORDERING ADVERTISEMENT FOR BIDS FOR CHEROKEE TRAIL UTILITY IMPROVEMENTS G. ADOPT RESOLUTION NO. 2011-48 APPROVING PLANS AND SPECIFICATIONS FOR VALLEY VIEW ROAD/PRAIRIE CENTER DRIVE INTERSECTION IMPROVEMENTS AND AUTHORIZE PURCHASE OF SIGNAL EQUIPMENT H. ADOPT RESOLUTION NO. 2011-49 DECLARING PROPERTY AS ABANDONED MOTION: Nelson moved, seconded by Case, to approve Items A-H on the Consent Calendar. Motion carried 5-0. IX. PUBLIC HEARINGS/MEETINGS A. T-MOBILE by T-Mobile. Request for Site Plan Review on 2.93 acres. Location: 7595 Anagram Drive (Resolution No. 2011-50 for Site Plan Review) Getschow said this is an integration of a telecommunication antenna on an existing 100 foot Xcel Energy tower for a total of 110 feet. The 110 foot tower height would require a setback of 440 feet. The existing tower is 320 feet from the residential zoned district. City code states that"a tower's setback may be reduced at the sole discretion of the City Council, to allow the integration of a tower into an existing or proposed structure such as a place of worship steeple, light standard,power line support device or similar structure". The developer seeks integration of the antenna with the existing tower and the Council's support for the 320-foot setback. He said official notice of this public hearing was published in the June 2, 2011, Eden Prairie News and was sent to 116 property owners. The 120-day review period expires August 12, 2011.The Planning Commission voted 6-0 to recommend approval of the developer's option at its May 23, 2011 meeting. Kari Brown, representing T-Mobile, was present to answer questions. CITY COUNCIL MINUTES June 14,2011 Page 5 Case said he supports the request but had a question regarding the arbitrariness of height restrictions and variances given for those heights. He understood that as technology improved the cells could be broken apart and the structures made lower, so he thought this feels somewhat arbitrary. Getschow said the 4-1 restriction in the code deals a lot with new towers. There was a time when there were issues about construction of many new monopole towers. Ms Brown said they have some limitations when they use Xcel poles and can only use the lattice towers with antennas placed above or below the lines. This request is to extend the tower by the height of the antenna. She said they chose the site because the landlord will allow a lease and Xcel will allow them to use the tower. The site is on a bit of a hill and is very centered in the coverage area. Case noted AT&T has a proposal to purchase T-Mobile and asked if that would impact this tower. He thought we had an agreement with Xcel in the past regarding the replacing of lattice poles with monopoles eventually. There were no comments from the audience. MOTION: Butcher Wickstrom moved, seconded by Aho, to close the public hearing, and to adopt Resolution No. 2011-50 for site plan review on 2.93 acres. Motion carried 5-0. B. SMITH DOUGLAS MORE HOUSE-DUNN BROTHERS COA - Certificate of Appropriateness for demolition of the work shed and construction of a trash enclosure for the Smith Douglas More House Getschow said the Smith-Douglas-More house, located at 8107 Eden Prairie Road, was designated a Heritage Preservation Site on September 16, 1997. The property is also eligible for registration as a National Register of Historic Places property. A Certificate of Appropriateness (COA) is required to make any change in, on, or to a designated Heritage Preservation Site, including demolition. This Certificate of Appropriateness will approve the following items: Workshop: The City is requesting approval of a Certificate of Appropriateness for demolition due to the workshop building's advanced state of dilapidation. Given the current condition of the building, and the concern for the safety of Dunn Bros. employees and the public, it is recommended that the building be removed. Prior to demolition any significant features or materials will be salvaged for reuse, or conveyed to the Eden Prairie Historical Society. Trash enclosure: The workshop building was used by Dunn Bros. to store trash bins,but due to the condition of the building trash bins are now being stored outdoors behind the store. Getschow said official notice of this public hearing was published in the June 2, 2011, Eden Prairie News and was sent to 80 property owners. The Heritage Preservation Commission (HPC)reviewed the plans and supports this request. CITY COUNCIL MINUTES June 14,2011 Page 6 Nelson asked if there was any discussion about trying to reface the trash enclosure with the original wood. Jeremiah said there has been discussion about potential reuse of wood for a future shed. The trash enclosure isn't a building, but rather is an area that has a fence around it. That fence will match the other fencing on the site. She said they plan to preserve the material and hope there would be a future use for it. Aho asked if the City would pay the cost for this since it is a City-owned building. Lindahl said the demolition and construction of the fence would be paid for by the City through the Facilities Department. Basil Wissner, 8293 Mitchell Road, asked if the shed is part of the historical building and if we have the right to tear it down. Jeremiah said this item was required to go through the HPC for their recommendation. It is a locally designated site so it doesn't have to go through any process other than approval by the HPC and the City Council. Mr. Wissner asked if all the material will be saved. Jeremiah said not all of the material is salvageable. Mr. Wissner asked if the property will be able to get on the National Register if we remove the shed. Jeremiah said we look at the Secretary of the Interior's standards, and those allow the removal of buildings that have deteriorated to this stage. Case said he appreciated Mr. Wissner's question very much and noted we should be questioning every time we take something down that is historical. He understands this falls under the certified local government process because the HPC has listed it as historically significant, and that is why it came before the Council tonight. He walked through the shed recently, and it looked like it was built around 1920, so the shed was added about 60 years after Mr. Smith built the house. MOTION: Aho moved, seconded by Case, to close the public hearing and to adopt the findings of fact and approve Certificate of Appropriateness #2011-01-032 for the Dunn Bros. coffee store site improvements plan. Motion carried 5-0. C. SUMMIT PLACE SENIOR HOUSING PROJECT—RESOLUTION 2011-51 RESCINDING RESOLUTION NO. 2008-71 AND RESOLUTION NO. 2011-52 MODIFYING REDEVELOPMENT PLAN FOR REDEVELOPMENT PROJECT NO.5 AND TAX INCREMENT FINANCING DISTRICT NO. 15 Getschow said this item was continued from two previous meetings. He noted the HRA will be convened tonight to act on this item following this public hearing. He said Tax Increment District(TIF) #15 was established in 1999 in order to provide 43 affordable housing units to seniors living at Summit Place for a term of 15 years. As part of this request, the owners have agreed to use additional TIF revenue generated from the 80-units addition to provide 5 more affordable rental units within the existing building for a total of 48 affordable units. They have agreed to extend the term of the affordable units to year 2026, or 26 years from when the first increment was collected from the district. CITY COUNCIL MINUTES June 14,2011 Page 7 Getschow said if the forecasted amount of TIF to be collected over the next 15 years is more than is needed to write down rents on the affordable units, then the rental affordability on all 48 units will be extended. Summit Place is a 320-unit senior rental project located at Flying Cloud Drive and Fountain Place Road immediately south of the Eden Prairie Center. He said official notice of this public hearing was published in the April 21, 2011, Eden Prairie News. Jeremiah said the development of the 80 additional units is not yet ready for Council consideration so the project management agreement to specifically allow that project is not part of the action tonight. It also was not part of the public hearing we advertised. This amendment would extend the term of the TIF District from 15 years to 25 years to assure the affordable units remain in the project. It also provides the opportunity for five more affordable units to become part of the additional units. It also makes those five units available to use somewhere else if the additional construction does not move forward. She said staff is meeting with the developer on Friday to discuss the status of the project. Case asked if extending TIF Districts requires the same criteria and if it has to be passed by some agency at the State. Jeremiah said staff has looked at this to make sure it meets all the criteria. We do get audited periodically but there is no process for the State to sign off on it. There were no comments from the audience. MOTION: Case moved, seconded by Nelson, to close the public hearing. Motion carried 5-0. At 7:55 PM Chair Tyra-Lukens opened the HRA meeting. She reconvened the Council at 7:57 PM. MOTION: Aho moved, seconded by Butcher Wickstrom, to adopt Resolution No. 2011-51 rescinding Resolution No. 2008-71 and to adopt Resolution No. 2011-52 adopting a modification to the redevelopment plan for redevelopment project No. 5 and the proposed adoption of a modification to the tax increment financing district No. 15. Motion carried 5-0. X. PAYMENT OF CLAIMS MOTION: Case moved, seconded by Nelson, to approve the payment of claims as submitted. Motion was approved on a roll call vote, with Aho, Butcher Wickstrom, Case, Nelson, and Tyra-Lukens voting "aye." XI. ORDINANCES AND RESOLUTIONS XII. PETITIONS, REQUESTS AND COMMUNICATIONS XIII. APPOINTMENTS CITY COUNCIL MINUTES June 14,2011 Page 8 A. STUDENTS ON COMMISSIONS Getschow said 17 applications were received for the 2011-2012 Students on Commission program, and all 17 applicants are being recommended for appointment. MOTION: Aho moved to appoint to the Arts & Culture Commission: Jamie Bernard for the fall term; and Nafisa Mahamud and Roseann Awad for the fall and spring terms; and Butcher Wickstrom moved to appoint to the Budget Advisory Commission: Charles Adams for the fall and spring terms; and Tyra-Lukens moved to appoint to the Conservation Commission: Kelly Hallowell for the fall term; Yasmin Atef-Vahid for the spring term; and McKenna Campbell-Potter and Rebecca Ebert for the fall and spring terms; and Case moved to appoint to the Flying Cloud Airport Advisory Commission: Kevin Gadel and John Bowman for the fall and spring terms; and Nelson moved to appoint to the Heritage Preservation Commission: Metadel Lee for the spring term and Ian English for the fall and spring terms; and Aho moved to appoint to the Human Rights and Diversity Commission: Ramla Mahamud and Camrie Vlasek for the fall and spring terms; and Butcher Wickstrom moved to appoint to the Parks, Recreation, and Natural Resources Commission: Joseph Schmit for the fall term; and Katie Ostendorf and Liz Powell for the fall and spring terms. All seconded by Case. Motion carried 5- 0. XIV. REPORTS A. REPORTS OF COUNCIL MEMBERS B. REPORT OF CITY MANAGER 1. Impact of Possible State Shutdown Getschow said the 2011 State legislative session ended on May 23 without a budget and, unless an agreement is reached by June 30, a portion of the State government will be shut down. We have received a lot of questions about what effect the shutdown would have on the City. The effect will be determined by what is deemed by the State to be an essential service. The City relies on its own revenue for operations but we rely on State, grant or other funding for projects such as the Hwy 494/169 project. Staff is trying to hurry up projects that require State approval to get them approved before July 1. He said projects requiring state inspection may not be able to move forward. We are trying to identify what indirect effects might occur from other agencies in the State. Nelson thought it would be nice to put something on the website to let people know they can continue to get permits and that a shutdown won't affect specific City operations. Butcher Wickstrom said a link to BeReadyMN.com might be a good idea as well. Getschow said the League of Minnesota Cities is also updating information daily. CITY COUNCIL MINUTES June 14,2011 Page 9 Tyra-Lukens noted SouthWest Transit does not meet until next week but their intent is to continue to operate through reserve funds. C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR D. REPORT OF PARKS AND RECREATION DIRECTOR 1. Eden Prairie Soccer Club Donation Lotthammer said the Eden Prairie Soccer Club is donating $4,000 to fund one set of soccer goals and two pair of soccer nets to be used on fields 12 and 13 at Miller Park. MOTION: Butcher Wickstrom moved, seconded by Case, to accept the donation from the Eden Prairie Soccer Club in the amount of$4,000 to fund a new set of soccer goals and new soccer nets at Miller Park. Motion carried 5-0. 2. Friends of the Arts Center Donation Lotthammer said on May 12, 2011, the City of Eden Prairie received a letter from the Friends of the Eden Prairie Art Center informing us that we would be receiving a donation for over$10,000 for capital purchase items to go towards new arts programming opportunities at the Art Center. In addition, the Friends of the Eden Prairie Art Center believe their goals have been met and have made the decision to discontinue fundraising for the Art Center. The $10,368.10 being donated is the last of the money raised and they are turning it over to the City. City staff will continue fund raising efforts such as writing grants for programming. He said we wanted to recognize the work done by the Friends of the Eden Prairie Art Center to make the Art Center operational. Tyra-Lukens said this group has raised a lot of money before this final donation. It is wonderful to see the participation figures at the Art Center. Aho asked what is left to do in terms of capital investment at the Art Center so we can inform people of those specific needs. Lotthammer said we are looking at some advanced kiln processes as well as other areas of art that people are interested in. At this time we are not in a position to make those decisions and would rather let this donation sit in the bank while we determine where the trends and needs are before we make big capital expenditures. Our registration for programs continues to grow, and we are getting closer to the capacity of the building. MOTION: Aho moved, seconded by Nelson, to accept the donation from the Friends of the Eden Prairie Art Center in the amount of$10,368.10 to fund capital purchase items required for new arts programming at the Eden CITY COUNCIL MINUTES June 14,2011 Page 10 Prairie Art Center. Motion carried 5-0. Tyra-Lukens thanked the Friends of the Art Center for the funds they have raised and for their efforts on behalf of the Art Center. E. REPORT OF PUBLIC WORKS DIRECTOR F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY XV. OTHER BUSINESS XVII. ADJOURNMENT MOTION: Nelson moved, seconded by Case, to adjourn the meeting. Motion carried 5- 0. Mayor Tyra-Lukens adjourned the meeting at 8:12 PM. CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar July 19, 2011 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: VIILA. Christy Weigel, Clerk's License Application List Police/Support Unit These licenses have been approved by the department heads responsible for the licensed activity. Temporary Liquor Organization: Scott County Historical Society Event: Hangar Dance Date: September 24, 2011 Place: 72A Sierra Lane, Flying Cloud Airport Amendment to Liquor License 2AM Closing Permit - Renewal Purple Star Inc. DBA: Green Mill of Eden Prairie - 1 - CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar July 19, 2011 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO. VIILB. Community Development: DEED Grant Contract—Valley View Road Janet Jeremiah/David Lindahl /Prairie Center Drive Intersection Project Requested Action: Move to: ■ Approve a contract with the Minnesota Department of Employment and Economic Development (DEED) for a Business Development Infrastructure Grant for the Valley View Road& Prairie Center Drive road improvement project. Synopsis: The City has been awarded a$275,000 grant through the Minnesota Department of Employment and Economic Development(DEED) to help pay for a portion of the planned road improvements at the Valley View Road & Prairie Center Drive. DEED requires a contract to be signed by the City outlining the specific terms of the grant. Background Information The City is planning to improve Valley View Road near the intersection of Prairie Center Drive in the Golden Triangle to help alleviate congestion that occurs during evening rush hours. The `y improvement is also expected to help accommodate growth of businesses in the area. Valley View Road will be widened to provide a dedicated right turn lane from westbound Valley View Road to northbound Prairie Center Drive. It also includes adding double left -�- turn lanes from westbound Valley View Road to southbound Prairier Center Drive, and restructuring the intersection signals. Total cost ofy the project is expected to be $825,000, with the City paying for the majority of the cost. Construction should begin in August of 2011 and is expected to be completed by late fall 2011. Several high profile businesses in the area including Compellent, VISI, and BOSE have all expressed support for this project.The City applied for a$275,000 DEED grant in March of this year and received an award letter from the Commissioner in May. The grant is part of DEED's "Innovative Business Development Public Infrastructure Program," which was created to fund infrastructure projects that support job growth. Attachment Contract Minnesota Department of Employment and Economic Development 2011 Greater Minnesota Business Development Public Infrastructure Grant Program General Obligation Bond Proceeds Grant Agreement - Construction Grant for the Eden Prairie Innovative Business Development Project Grant #IBDP-11-0003-0-FY11 Generic GO Bond Proceeds Ver— 2/16/10 Grant Agreement for Program Construction Grants (GO GA-Prgrm Cnstrctn Grnt) TABLE OF CONTENTS RECITALS Article I—DEFINITIONS 2 Section 1.01 —Defined Terms 2 Article II— GRANT 6 Section 2.01 — Grant of Monies 6 Section 2.02—Public Ownership 6 Section 2.03 —Use of Grant Proceeds 7 Section 2.04— Operation of the Real Property and Facility 7 Section 2.05 —Public Entity Representations and Warranties 8 Section 2.06— Ownership by Leasehold or Easement 10 Section 2.07 —Event(s) of Default 12 Section 2.08 —Remedies 13 Section 2.09—Notification of Event of Default 14 Section 2.10— Survival of Event of Default 14 Section 2.11 —Term of Grant Agreement 14 Section 2.12—Modification and/or Early Termination of Grant 14 Section 2.12—Excess Funds 15 Article III—USE CONTRACTS 15 Section 3.01 — General Provisions 15 Section 3.02—Initial Term and Renewal 17 Section 3.03 —Reimbursement of Counterparty 17 Section 3.04—Receipt of Monies Under a Use Contract 18 Article IV—SALE 18 Section 4.01 — Sale 18 Section 4.02—Proceeds of Sale 19 Article V—COMPLIANCE WITH G.O. COMPLIANCE LEGISLATION AND THE COMMISSIONER'S ORDER 20 Section 5.01 — State Bond Financed Property 20 Section 5.02—Preservation of Tax Exempt Status 20 Section 5.03 —Changes to G.O. Compliance Legislation or the Commissioner's Order 21 Article VI—DISBURSEMENT OF GRANT PROCEEDS 21 Section 6.01 —Draw Requisitions 21 Section 6.02—Additional Funds 22 Section 6.03 —Condition Precedent to Any Advance 22 Section 6.04—Construction Inspections 24 DEED Greater NIN Business Development Public Infrastructure Program 1 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) Article VII- MISCELLANEOUS 24 Section 7.01 -Insurance 24 Section 7.02-Condemnation 26 Section 7.03 -Use, Maintenance, Repair and Alterations 26 Section 7.04-Records Keeping and Reporting 27 Section 7.05 -Inspections by State Entity 28 Section 7.06-Data Practices 28 Section 7.07 -Non-Discrimination 28 Section 7.08 -Worker's Compensation 28 Section 7.09-Antitrust Claims 28 Section 7.10-Review of Plans and Cost Estimates 28 Section 7.11 -Prevailing Wages 30 Section 7.12-Liability 30 Section 7.13 -Indemnification by the Public Entity 30 Section 7.14-Relationship of the Parties 31 Section 7.15 -Notices 31 Section 7.16-Binding Effect and Assignment or Modification 32 Section 7.17 -Waiver 32 Section 7.18 -Entire Agreement 32 Section 7.19-Choice of Law and Venue 33 Section 7.20- Severability 33 Section 7.21 -Time of Essence 33 Section 7.22-Counterparts 33 Section 7.23 -Matching Funds 33 Section 7.24- Source and Use of Funds 33 Section 7.25 -Project Completion Schedule 34 Section 7.26-Third-Party Beneficiary 34 Section 7.27 -Public Entity Tasks 34 Section 7.28 - State Entity and Commissioner Required Acts and Approvals 35 Section 7.29-Applicability to Real Property and Facility 35 Section 7.30-E-Verification 35 Section 7.31 -Additional Requirements 35 Attachment I-DECLARATION 37 Attachment II-LEGAL DESCRIPTION OF REAL PROPERTY 39 Attachment III-SOURCE AND USE OF FUNDS 40 Attachment IV-PROJECT COMPLETION SCHEDULE 42 Attachment V-GRANT APPLICATION DEED Greater NIN Business Development Public Infrastructure Program ll Ver- 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) Minnesota Department of Employment and Economic Development Greater Minnesota Business Development Public Infrastructure Program General Obligation Bond Proceeds Grant Agreement- Construction Grant for the Eden Prairie Innovative Business Development Project Grant#IBDP-0003-0-FYII THIS AGREEMENT shall be effective as of March 30/2011, and is between the City of Eden Prairie, a statutory city (the "Public Entity"), and the Minnesota Department of Employment and Economic Development("DEED"). RECITALS A. DEED has, under the provisions contained in Minn. Stat. 116J.431, created and implemented the Greater Minnesota Business Development Public Infrastructure Grant Program (the "DEED Greater Minnesota Business Development Public Infrastructure Grant Program") under which it provides grants to statutory and home rule charter cities located outside the metropolitan area (as defined in Minn. Stat. § 473.121, Subd. 2) to assist such cities in the financing of public infrastructure necessary to support eligible projects under Minn. Stat. § 116J.431, Subd. 2. B. The Public Entity is either a statutory or home rule charter city and as such has the legal authority to own, construct and maintain public infrastructure. C. Under the State Program, DEED is authorized to provide grants that are funded with proceeds of state general obligation bonds authorized to be issued under Article XI, § 5(a) of the Minnesota Constitution. D. Under the State Program the recipients of a grant must use such funds to perform those functions delineated in the State Program Enabling Legislation. E. The Public Entity submitted, if applicable, a grant application to DEED in which the Public Entity requests a grant from the State Program the proceeds of which will be used for the purposes delineated in such grant application. F The Public Entity has applied to and been selected by DEED for a receipt of a grant from the State Program in an amount of TWO HUNDRED SEVENTY-FIVE THOUSAND DOLLARS ($275,000) (the "Program Grant"), the proceeds must be used by the Public Entity to perform those functions and activities imposed by DEED under the State Program and, if applicable, delineated in that certain grant application (the "Grant Application"). DEED Greater NIN Business Development Public Infrastructure Program 1 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) G. The Public Entity's receipt and use of the Program Grant to acquire an ownership interest in and/or improve real property (the "Real Property") and, if applicable, structures situated thereon (the "Facility") will cause the Public Entity's ownership interest in all of such real property and structures to become "state bond financed property", as such term is used in Minn. Stat. § 16A.695 (the "G.O. Compliance Legislation") and in that certain "Second Order Amending Order of the Commissioner of Finance Relating to Use and Sale of State Bond Financed Property" executed by the Commissioner of Minnesota Management and Budget and dated March 9, 2010 (the "Commissioner's Order"), even though such funds are being used to only acquire such ownership interest and/or improve a part of such real property and structure. H. The Public Entity and DEED desire to set forth herein the provisions relating to the granting and disbursement of the proceeds of the Program Grant to the Public Entity and the operation of the Real Property and, if applicable, Facility. IN CONSIDERATION of the grant described and other provisions in this Agreement, the parties to this Agreement agree as follows. Article I DEFINITIONS Section 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set out respectively after each such term (the meanings to be equally applicable to both the singular and plural forms of the terms defined), unless the context specifically indicates otherwise: "Agreement" - means this General Obligation Bond Proceeds Grant Agreement - Construction Grant for the Eden Prairie IBDP Project under Greater Minnesota Business Development Public Infrastructure Program, as such exists on its original date and any amendments, modifications or restatements thereof. "Approved Debt" — means public or private debt of the Public Entity that is consented to and approved, in writing, by the Commissioner of the Minnesota Department of Management and Budget (MMB), the proceeds of which were or will used to acquire an ownership interest in or improve the Real Property and, if applicable, Facility, other than the debt on the G.O. Bonds. Approved Debt includes, but is not limited to, all debt delineated in Attachment III to this Agreement; provided, however, the Commissioner of MMB is not bound by any amounts delineated in such attachment unless he/she has consented, in writing, to such amounts. "Code" - means the Internal Revenue Code of 1986, as amended from time to time, and all treasury regulations, revenue procedures and revenue rulings issued pursuant thereto. "Commissioner of MMB" - means the commissioner of the Minnesota Department of Management and Budget, and any designated representatives thereof. "Commissioner's Order" - means that certain "Second Order Amending Order of the Commissioner of Finance Relating to Use and Sale of State Bond Financed Property" DEED Greater NIN Business Development Public Infrastructure Program 2 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) executed by the Commissioner of Minnesota Management and Budget and dated March 9, 2010. "Completion Date" — means December 31, 2012, the date of projected completion of the Project. "Contractor" - means any person engaged to work on or to furnish materials and supplies for the Construction Items including, if applicable, a general contractor. "Construction Contract Documents" - means the document or documents, in form and substance acceptable to DEED, including but not limited to any construction plans and specifications and any exhibits, amendments, change orders, modifications thereof or supplements thereto, which collectively form the contract between the Public Entity and the Contractor or Contractors for the completion of the Construction Items on or before the Completion Date for either a fixed price or a guaranteed maximum price. "Construction Items" — means the work to be performed under the Construction Contract Documents. "Counterparty" - means any entity with which the Public Entity contracts under a Use Contract. This definition is only needed and only applies if the Public Entity enters into an agreement with another party under which such other party will operate the Real Property, and if applicable, Facility. For all other circumstances this definition is not needed and should be ignored and treated as if it were left blank, and any reference to this term in this Agreement shall be ignored and treated as if the reference did not exist. "Declaration" - means a declaration, or declarations, in the form contained in Attachment I to this Agreement and all amendments thereto, indicating that the Public Entity's ownership interest in the Real Property and, if applicable, Facility is bond financed property within the meaning of the G.O. Compliance Legislation and is subject to certain restrictions imposed thereby. "Draw Requisition" - means a draw requisition that the Public Entity, or its designee, submits to DEED when a payment is requested, as referred to in Section 6.02. "DEED" — means the Minnesota Department of Employment and Economic Development. "DEED Greater Minnesota Business Development Public Infrastructure Grant Program" — means the program authorized by Minn. Stat. § 116J.431 and under which DEED supplies financial assistance in the form of grants to statutory and home rule charter cities located outside the metropolitan area (as defined in Minn. Stat. § 473.121, Subd. 2) to assist such cities in the financing of public infrastructure necessary to support eligible projects under Minn. Stat. § 116J.431, Subd. 2. "Event of Default" - means one or more of those events delineated in Section 2.07. DEED Greater NIN Business Development Public Infrastructure Program 3 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) "Facility", if applicable, - means public infrastructure, which is located, or will be constructed and located, on the Real Property and all equipment that is a part thereof that was purchased with the proceeds of the Program Grant. "Fair Market Value" — means either (i) the price that would be paid by a willing and qualified buyer to a willing and qualified seller as determined by an appraisal that assumes that all liens and encumbrances on the property being sold that negatively affect the value of such property, will be paid and released, or (ii) the price bid by a purchaser under a public bid procedure after reasonable public notice, with the proviso that all liens and encumbrances on the property being sold that negatively affect the value of such property, will be paid and released at the time of acquisition by the purchaser. "G.O. Bonds" - means that portion of the state general obligation bonds issued under the authority granted in Article XI, § 5(a) of the Minnesota Constitution the proceeds of which are used to fund the Program Grant and any bonds issued to refund or replace such bonds. "G.O. Compliance Legislation" - means Minn. Stat. § 16A.695, as it may be amended, modified or replaced from time to time unless such amendment, modification or replacement imposes an unconstitutional impairment of a contract right. "Grant Application" — means that certain grant application that the Public Entity submitted to DEED. This definition is only needed and only applies if the Public Entity submitted a grant application to DEED. If the Public Entity did not submit a grant application to DEED, then this definition is not needed and should be ignored and treated as if it were left blank, and any reference to this term in this Agreement shall be ignored and treated as if the reference did not exist. "Initial Acquisition and Betterment Costs" — means the cost to acquire the Public Entity's ownership interest in Real Property and, if applicable, Facility if the Public Entity does not already possess the required ownership interest, and the costs of betterments of the Real Property and, if applicable, Facility; provided, however, the Commissioner of MMB is not bound by any specific amount of such alleged costs unless he/she has consented, in writing, to such amount. "Outstanding Balance of the Program Grant" — means the portion of the Program Grant that has been disbursed to or on behalf of the Public Entity minus any portions thereof previously paid back to the Commissioner of MMB. "Program Grant" - means a grant of monies from DEED to the Public Entity in the amount identified as the "Program Grant" in Recital E to this Agreement, as the amount thereof may be modified under the provisions contained herein. "Project" - means the Public Entity's acquisition, if applicable, of the ownership interests in the Real Property and, if applicable, Facility denoted in Section 2.02 along with the performance of activities denoted in Section 2.03 herein. (If the Public Entity is not using any portion of the Program Grant to acquire the ownership interest denoted in Section 2.02, then this definition for Project shall not include the acquisition of such DEED Greater NIN Business Development Public Infrastructure Program 4 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) ownership interest, and the value of such ownership interest shall not be included in Attachment III hereto and instead shall be included in the definition for Ownership Value under this Section.) "Public Entity" - means the entity identified as the "Public Entity" in the lead-in paragraph of this Agreement. "Real Property" - means the real property located in the County of Hennepin, State of Minnesota, legally described in Attachment II to this Agreement. "Real Property/Facility Lease" - means a long term lease of the Real Property, the Facility, if applicable, or both by the Public Entity as lessee thereunder. This definition is only needed and only applies if the Public Entity's ownership interest in the Real Property, the Facility, if applicable, or both is a leasehold interest under a lease. For all other circumstances this definition is not needed and should be ignored and treated as if it were left blank, and any reference to this term in this Agreement shall be ignored and treated as if the reference did not exist. "State Entity" - means the Minnesota Department of Employment and Economic Development. "State Program" — means the program delineated in the State Program Enabling Legislation. "State Program Enabling Legislation" — means the legislation contained in the Minnesota statute(s) delineated in Recital A and all rules related to such legislation. "Subsequent Betterment Costs" — means the costs of betterments of the Real Property and, if applicable, Facility that occur subsequent to the date of this Agreement, are not part of the Project, would qualify as a public improvement of a capital nature (as such term in used in Minn. Constitution Art. XI, §5(a) of the Minnesota Constitution), and the cost of which has been established by way of written documentation that is acceptable to and approved, in writing, by DEED and the Commissioner of MMB. "Use Contract" - means a lease, management contract or other similar contract between the Public Entity and any other entity that involves or relates to any part of the Real Property and/or, if applicable, Facility. This definition is only needed and only applies if the Public Entity enters into an agreement with another party under which such other party will operate the Real Property and/or, if applicable, Facility. For all other circumstances this definition is not needed and should be ignored and treated as if it were left blank, and any reference to this term in this Agreement shall be ignored and treated as if the reference did not exist. "Useful Life of the Real Property and, if applicable, Facility" —means (i) 30 years for Real Property that has no structure situated thereon or if any structures situated thereon will be removed, and no new structures will be constructed thereon, (ii) the remaining useful life of the Facility as of the effective date of this Agreement for Facilities that are situated on the Real Property as of the date of this Agreement, that will remain on the Real DEED Greater NIN Business Development Public Infrastructure Program 5 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) Property, and that will not be bettered, or (iii) the useful life of the Facility after the completion of the construction or betterments for Facilities that are to be constructed or bettered. Article II GRANT Section 2.01 Grant of Monies. DEED shall make and issue the Program Grant to the Public Entity, and disburse the proceeds in accordance with the provisions of this Agreement. The Program Grant is not intended to be a loan even though the portion thereof that is disbursed may need to be returned to DEED or the Commissioner of MMB under certain circumstances. Section 2.02 Public Ownership. The Public Entity acknowledges and agrees that the Program Grant is being funded with the proceeds of G.O. Bonds, and as a result thereof all of the Real Property and, if applicable, Facility must be owned by one or more public entities. Such ownership may be in the form of fee ownership, a Real Property/Facility Lease, or an easement. In order to establish that this public ownership requirement is satisfied, the Public Entity represents and warrants to DEED that it has, or will acquire, the following ownership interests in the Real Property and, if applicable, Facility, and, in addition, that it possess, or will possess, all easements necessary for the operation, maintenance and management of the Real Property and, if applicable, Facility in the manner specified in Section 2.04: (Check the appropriate box for the Real Property and, if applicable, for the Facility.) Ownership Interest in the Real Property. 0 Fee simple ownership of the Real Property. A Real Property/Facility Lease for the Real Property that complies with the requirements contained in Section 2.06. [If the term of the Real Property/Facility Lease is for a term authorized by a Minnesota statute, rule or session law, then insert the citation at this point .] An easement for the Real Property that complies with the requirements contained in Section 2.06. [If the term of the easement is for a term authorized by a Minnesota statute, rule or session law, then insert the citation at this point .] Ownership Interest in, if applicable, the Facility. Fee simple ownership of the Facility. A Real Property/Facility Lease for the Facility that complies with all of the DEED Greater NIN Business Development Public Infrastructure Program 6 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) requirements contained in Section 2.06. [If the term of the Real Property/Facility Lease is for a term authorized by a Minnesota statute, rule or session law, then insert the citation at this point .] ElNot applicable because there is no Facility. Section 2.03 Use of Grant Proceeds. The Public Entity shall use the Program Grant solely to reimburse itself for expenditures it has already made in the performance of the following activities, and may not use the Program Grant for any other purpose. (Check all appropriate boxes.) ❑ Acquisition of fee simple title to the Real Property. ❑ Acquisition of a leasehold interest in the Real Property. ❑ Acquisition of an easement for the Real Property. ❑ Improvement of the Real Property. ❑ Acquisition of fee simple title to the Facility. ❑ Acquisition of a leasehold interest in the Facility. ❑ Construction of the Facility. ❑ Renovation of the Facility. (Describe other or additional purposes.) Section 2.04 Operation of the Real Property and Facility. The Real Property and, if applicable, Facility must be used by the Public Entity or the Public Entity must cause such Real Property and, if applicable, Facility to be used for those purposes required by the State Program and in accordance with the information contained in the Grant Application, or for such other purposes and uses as the Minnesota legislature may from time to time designate, and for no other purposes or uses. The Public Entity may enter into Use Contracts with Counterparties for the operation of all or any portion of the Real Property and, if applicable, Facility; provided that all such Use Contracts must have been approved, in writing, by the Commissioner of MMB and fully comply with all of the provisions contained in Sections 3.01, 3.02 and 3.03. Section 2.05 Public Entity Representations and Warranties. The Public Entity further covenants with, and represents and warrants to DEED as follows: DEED Greater NIN Business Development Public Infrastructure Program 7 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) A. It has legal authority to enter into, execute, and deliver this Agreement, the Declaration, and all documents referred to herein, and it has taken all actions necessary to its execution and delivery of such documents. B. It has legal authority to use the Program Grant for the purpose or purposes described in the State Program Enabling Legislation. C. It has legal authority to operate the State Program and the Real Property and, if applicable, Facility for the purposes required by the State Program and for the functions and activities proposed in the Grant Application. D. This Agreement, the Declaration, and all other documents referred to herein are the legal, valid and binding obligations of the Public Entity enforceable against the Public Entity in accordance with their respective terms. E. It will comply with all of the terms, conditions, provisions, covenants, requirements, and warranties in this Agreement, the Declaration, and all other documents referred to herein. F. It will comply with all of the provisions and requirements contained in and imposed by the G.O. Compliance Legislation, the Commissioner's Order, and the State Program. G. It has made no material false statement or misstatement of fact in connection with its receipt of the Program Grant, and all of the information it has submitted or will submit to DEED or Commissioner of MMB relating to the Program Grant or the disbursement of any of the Program Grant is and will be true and correct. H. It is not in violation of any provisions of its charter or of the laws of the State of Minnesota, and there are no actions, suits, or proceedings pending, or to its knowledge threatened, before any judicial body or governmental authority against or affecting it relating to the Real Property and, if applicable, Facility, or its ownership interest therein, and it is not in default with respect to any order, writ, injunction, decree, or demand of any court or any governmental authority which would impair its ability to enter into this Agreement, the Declaration, or any document referred to herein, or to perform any of the acts required of it in such documents. L Neither the execution and delivery of this Agreement, the Declaration, or any document referred to herein nor compliance with any of the terms, conditions, requirements, or provisions contained in any of such documents is prevented by, is a breach of, or will result in a breach of, any term, condition, or provision of any agreement or document to which it is now a party or by which it is bound. J. The contemplated use of the Real Property and, if applicable, Facility will not violate any applicable zoning or use statute, ordinance, building code, rule or regulation, or any covenant or agreement of record relating thereto. DEED Greater NIN Business Development Public Infrastructure Program 8 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) K. The Project will be completed in full compliance with all applicable laws, statutes, rules, ordinances, and regulations issued by any federal, state, or local political subdivisions having jurisdiction over the Project. L. All applicable licenses, permits and bonds required for the performance and completion of the Project have been, or will be, obtained. M. All applicable licenses,permits and bonds required for the operation of the Real Property and, if applicable, Facility in the manner specified in Section 2.04 have been, or will be, obtained. N. It will operate, maintain, and manage the Real Property and, if applicable, Facility or cause the Real Property and, if applicable, Facility, to be operated, maintained and managed in compliance with all applicable laws, statutes, rules, ordinances, and regulations issued by any federal, state, or local political subdivisions having jurisdiction over the Real Property and, if applicable, Facility. O. It will fully enforce the terms and conditions contained in any Use Contract. P. It has complied with the matching funds requirement, if any, contained in Section 7.23. Q. It will not, without the prior written consent of DEED and the Commissioner of MMB, allow any voluntary lien or encumbrance or involuntary lien or encumbrance that can be satisfied by the payment of monies and which is not being actively contested to be created or exist against the Public Entity's ownership interest in the Real Property or, if applicable, Facility, or the Counterparty's interest in the Use Contract, whether such lien or encumbrance is superior or subordinate to the Declaration. Provided, however, DEED and the Commissioner of MMB will consent to any such lien or encumbrance that secures the repayment of a loan the repayment of which will not impair or burden the funds needed to operate the Real Property and, if applicable, Facility in the manner specified in Section 2.04, and for which the entire amount is used (i) to acquire additional real estate that is needed to so operate the Real Property and, if applicable, Facility in accordance with the requirements imposed under Section 2.04 and will be included in and as part of the Public Entity's ownership interest in the Real Property and, if applicable, Facility, and/or (ii) to pay for capital improvements that are needed to so operate the Real Property and, if applicable, Facility in accordance with the requirements imposed under Section 2.04. R. It reasonably expects to possess the ownership interest in the Real Property and, if applicable, Facility described Section 2.02 for the entire Useful Life of the Real Property and, if applicable, Facility, and it does not expect to sell such ownership interest. S. It does not reasonably expect to receive payments under a Use Contract in excess of the amount the Public Entity needs and is authorized to use to pay the operating expenses of the portion of the Real Property and, if applicable, Facility that is the subject of the Use Contract or to pay the principal, interest,redemption premiums, and other expenses on any Approved Debt. DEED Greater MN Business Development Public Infrastructure Program 9 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) T. It will supply, or cause to be supplied, whatever funds are needed above and beyond the amount of the Program Grant to complete and fully pay for the Project. U. The Construction Items will be completed substantially in accordance with the Construction Contract Documents by the Completion Date, and all such items along with, if applicable, the Facility will be situated entirely on the Real Property. V. It will require the Contractor or Contractors to comply with all rules, regulations, ordinances, and laws bearing on its performance under the Construction Contract Documents. W. It has or will promptly record a fully executed Declaration with the appropriate governmental office and deliver a copy thereof to DEED and to Minnesota Management and Budget (attention: Capital Projects Manager) that contains all of the recording information. X. It shall furnish such satisfactory evidence regarding the representations and warranties described herein as may be required and requested by either DEED or the Commissioner of MMB. Section 2.06 Ownership by Leasehold or Easement. This Section shall only apply if the Public Entity's ownership interest in the Real Property, the Facility, if applicable, or both is by way of a Real Property/Facility Lease or an easement. For all other circumstances this Section is not needed and should be ignored and treated as if it were left blank, and any reference to this Section in this Agreement shall be ignored and treated as if the reference did not exist. A. A Real Property/Facility Lease or easement must comply with the following provisions. 1. It must be in form and contents acceptable to the Commissioner of MMB, and specifically state that it may not be modified, restated, amended, changed in any way, or prematurely terminated or cancelled without the prior written consent and authorization by the Commissioner of MMB. 2. It must be for a term that is equal to or greater than 125% of the Useful Life of the Real Property and, if applicable, Facility, or such other period of time specifically authorized by a Minnesota statute, rule or session law. 3. Any payments to be made under it by the Public Entity, whether designated as rent or in any other manner, must be by way of a single lump sum payment that is due and payable on the date that it is first made and entered into. 4. It must not contain any requirements or obligations of the Public Entity that if not complied with could result in a termination thereof. DEED Greater NIN Business Development Public Infrastructure Program 10 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) 5. It must contain a provision that provides sufficient authority to allow the Public Entity to operate the Real Property and, if applicable, Facility in accordance with the requirements imposed under Section 2.04. 6. It must not contain any provisions that would limit or impair the Public Entity's operation of the Real Property and, if applicable, Facility in accordance with the requirements imposed under Section 2.04. 7. It must contain a provision that prohibits the Lessor/Grantor from creating or allowing, without the prior written consent of DEED and the Commissioner of MMB, any voluntary lien or encumbrance or involuntary lien or encumbrance that can be satisfied by the payment of monies and which is not being actively contested against the Leased/Easement Premises or the Lessor's/Grantor's interest in the Real Property/Facility Lease or easement, whether such lien or encumbrance is superior or subordinate to the Declaration. Provided, however, DEED and the Commissioner of MMB will consent to any such lien or encumbrance if the holder of such lien or encumbrance executes and files of record a document under which such holder subordinates such lien or encumbrance to the Real Property/Facility Lease or easement and agrees that upon foreclosure of such lien or encumbrance to be bound by and comply with all of the terms, conditions and covenants contained in the Real Property/Facility Lease or easement as if such holder had been an original Lessor/Grantor under the Real Property/Facility Lease or easement. 8. It must acknowledge the existence of this Agreement and contain a provision that the terms, conditions and provisions contained in this Agreement shall control over any inconsistent or contrary terms, conditions and provisions contained in the Real Property/Facility Lease or easement. 9. It must provide that any use restrictions contained therein only apply as long as the Public Entity is the lessee under the Real Property/Facility Lease or grantee under the easement, and that such use restrictions will terminate and not apply to any successor lessee or grantee who purchases the Public Entity's ownership interest in the Real Property/Facility Lease or easement. Provided, however, it may contain a provisions that limits the construction of any new structures on the Real Property or modifications of any existing structures on the Real Property without the written consent of Lessor/Grantor, which will apply to any such successor lessee or grantee. 10. It must allow for a transfer thereof in the event that the lessee under the Real Property/Lease or grantee under the easement makes the necessary determination to sell its interest therein, and allow such interest to be transferred to the purchaser of such interest. 11. It must contain a provision that prohibits and prevents the sale of the underlying fee interest in the Real Property and, if applicable, Facility without first obtaining the written consent of the Commissioner of MMB. DEED Greater MN Business Development Public Infrastructure Program 11 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) 12 The Public Entity must be the lessee under the Real Property/Lease or grantee under the easement. B. The provisions contained in this Section are not intended to and shall not prevent the Public Entity from including additional provisions in the Real Property/Facility Lease or easement that are not inconsistent with or contrary to the requirements contained in this Section. C. The expiration of the term of a Real Property/Facility Lease or easement shall not be an event that requires the Public Entity to reimburse DEED for any portion of the Program Grant, and upon such expiration the Public Entity's ownership interest in the Real Property and, if applicable, Facility shall no longer be subject to this Agreement. D. The Public Entity shall fully and completely comply with all of the terms, conditions and provisions contained in a Real Property/Facility Lease or easement, and shall obtain and file, in the Office of the County Recorder or the Registrar of Titles, whichever is applicable, the Real Property/Facility Lease or easement or a short form or memorandum thereof. Section 2.07 Event(s) of Default. The following events shall, unless waived in writing by DEED and the Commissioner of MMB, constitute an Event of Default under this Agreement upon either DEED or the Commissioner of MMB giving the Public Entity 30 days written notice of such event and the Public Entity's failure to cure such event during such 30 day time period for those Events of Default that can be cured within 30 days or within whatever time period is needed to cure those Events of Default that cannot be cured within 30 days as long as the Public Entity is using its best efforts to cure and is making reasonable progress in curing such Events of Default, however, in no event shall the time period to cure any Event of Default exceed 6 months unless otherwise consented to, in writing, by DEED and the Commissioner of MMB. A. If any representation, covenant, or warranty made by the Public Entity in this Agreement, in any Draw Requisition, in any other document furnished pursuant to this Agreement, or in order to induce DEED to disburse any of the Program Grant, shall prove to have been untrue or incorrect in any material respect or materially misleading as of the time such representation, covenant, or warranty was made. B. If the Public Entity fails to fully comply with any provision, term, condition, covenant, or warranty contained in this Agreement, the Declaration, or any other document referred to herein. C. If the Public Entity fails to fully comply with any provision, term, condition, covenant or warranty contained in the G.O. Compliance Legislation, the Commissioner's Order, or the State Program Enabling Legislation. D. If the Public Entity fails to complete the Project, or cause the Project to be completed,by the Completion Date. E. If the Public Entity fails to provide and expend the full amount of the matching funds, if any, required under Section 7.23 for the Project. DEED Greater MN Business Development Public Infrastructure Program 12 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) F. If the Public Entity fails to record the Declaration and deliver copies thereof as set forth in Section 2.05.W. Notwithstanding the foregoing, any of the above delineated events that cannot be cured shall, unless waived in writing by DEED and the Commissioner of MMB, constitute an Event of Default under this Agreement immediately upon either DEED or the Commissioner of MMB giving the Public Entity written notice of such event. Section 2.08 Remedies. Upon the occurrence of an Event of Default and at any time thereafter until such Event of Default is cured to the satisfaction of DEED, DEED or the Commissioner of MMB may enforce any or all of the following remedies. A. DEED may refrain from disbursing the Program Grant; provided, however, DEED may make such disbursements after the occurrence of an Event of Default without thereby waiving its rights and remedies hereunder. B. If the Event of Default involves a failure to comply with any of the provisions contained in herein other then the provisions contained in Sections 4.01 or 4.02, then the Commissioner of MMB, as a third party beneficiary of this Agreement, may demand that the Outstanding Balance of the Program Grant be returned to it, and upon such demand the Public Entity shall return such amount to the Commissioner of MMB. C. If the Event of Default involves a failure to comply with the provisions contained in Sections 4.01 or 4.02, then the Commissioner of MMB, as a third party beneficiary of this Agreement, may demand that the Public Entity pay the amounts that would have been paid if there had been full and complete compliance with such provisions, and upon such demand the Public Entity shall pay such amount to the Commissioner of MMB. D. Either DEED or the Commissioner of MMB, as a third party beneficiary of this Agreement, may enforce any additional remedies they may have in law or equity. The rights and remedies herein specified are cumulative and not exclusive of any rights or remedies that DEED or the Commissioner of MMB would otherwise possess. If the Public Entity does not repay the amounts required to be paid under this Section or under any other provision contained in this Agreement within 30 days of demand by the Commissioner of MMB, or any amount ordered by a court of competent jurisdiction within 30 days of entry of judgment against the Public Entity and in favor of DEED and/or the Commissioner of MMB, then such amount may, unless precluded by law, be taken from or off- set against any aids or other monies that the Public Entity is entitled to receive from the State of Minnesota. Section 2.09 Notification of Event of Default. The Public Entity shall furnish to DEED and the Commissioner of MMB, as soon as possible and in any event within 7 days after it has obtained knowledge of the occurrence of each Event of Default or each event which with the giving of notice or lapse of time or both would constitute an Event of Default, a statement DEED Greater NIN Business Development Public Infrastructure Program 13 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) setting forth details of each Event of Default or event which with the giving of notice or upon the lapse of time or both would constitute an Event of Default and the action which the Public Entity proposes to take with respect thereto. Section 2.10 Survival of Event of Default. This Agreement shall survive any and all Events of Default and remain in full force and effect even upon the payment of any amounts due under this Agreement, and shall only terminate in accordance with the provisions contained in Section 2.12 and at the end of its term in accordance with the provisions contained in Section 2.11. Section 2.11 Term of Grant Agreement. This Agreement shall, unless earlier terminated in accordance with any of the provisions contained herein, remain in full force and effect for the time period starting on the effective date hereof and ending on the date that corresponds to the date established by adding a time period equal to 125% of Useful Life of the Real Property and, if applicable, Facility to the date on which the Real Property and, if applicable, Facility is first used for the operation of the Governmental Program after such effective date. If there are no uncured Events of Default as of such date this Agreement shall terminate and no longer be of any force or effect, and the Commissioner of MMB shall execute whatever documents are needed to release the Real Property and, if applicable, Facility from the effect of this Agreement and the Declaration. Section 2.12 Modification and/or Early Termination of Grant. If the Project is not started on or before the date that is 5 years from the effective date of this Agreement or all of the Program Grant has not been disbursed as of the date that is 4 years from the date on which the Project is started, or such later dates to which the Public Entity and DEED may agree in writing, then DEED's obligation to fund the Program Grant shall terminate. In such event, (i) if none of the Program Grant has been disbursed by such dates then DEED's obligation to fund any portion of the Program Grant shall terminate and this Agreement shall terminate and no longer be of any force or effect, and (ii) if some but not all of the Program Grant has been disbursed by such dates then DEED shall have no further obligation to provide any additional funding for the Program Grant and this Agreement shall remain in full force and effect but shall be modified and amended to reflect the amount of the Program Grant that was actually disbursed as of such date. This provision shall not, in any way, affect the Public Entity's obligation to complete the Project by the Completion Date. This Agreement shall also terminate and no longer be of any force or effect upon the Public Entity's sale of its ownership interest in the Real Property and, if applicable, Facility in accordance with the provisions contained in Section 4.01 and transmittal of all or a portion of the proceeds of such sale to the Commissioner of MMB in compliance with the provisions contained in Section 4.02, or upon the termination of Public Entity's ownership interest in the Real Property and, if applicable, Facility if such ownership interest is by way of an easement or under a Real Property/Facility Lease. Upon such termination DEED shall execute, or have executed, and deliver to the Public Entity such documents as are required to release the Public Entity's ownership interest in the Real Property and, if applicable, Facility, from the effect of this Agreement and the Declaration. Section. 2.13 Excess Funds. If the full amount of the Program Grant and any matching funds referred to in Section 7.23 are not needed to complete the Project, then, unless language in DEED Greater NIN Business Development Public Infrastructure Program 14 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) the State Program Enabling Legislation indicates otherwise, the Program Grant shall be reduced by the amount not needed. Article III USE CONTRACTS This Article III and its contents is only needed and only applies if the Public Entity enters into an agreement with another party under which such other party will operate any portion of the Real Property, and if applicable, Facility. For all other circumstances this Article III and it contents is not needed and should be ignored and treated as if it were left blank, and any reference to this Article III, its contents, and the term Use Contract in this Agreement shall be ignored and treated as if the references did not exist. Section 3.01 General Provisions. If the Public Entity has statutory authority to enter into a Use Contract, then it may enter into Use Contracts for various portions of the Real Property and, if applicable, Facility; provided that each and every Use Contract that the Public Entity enters into must comply with the following requirements: A. The purpose for which it was entered into must be to operate the State Program in the Real Property and, if applicable, Facility. B. It must contain a provision setting forth the statutory authority under which the Public Entity is entering into such contract, and must comply with the substantive and procedural provisions of such statute. C. It must contain a provision stating that it is being entered into in order for the Counterparty to operate the State Program and must describe such program. D. It must contain a provision that will provide for oversight by the Public Entity. Such oversight may be accomplished by way of a provision that will require the Counterparty to provide to the Public Entity: (i) an initial program evaluation report for the first fiscal year that the Counterparty will operate the State Program, (ii) program budgets for each succeeding fiscal year showing that forecast program revenues and additional revenues available for the operation of the State Program (from all sources) by the Counterparty will equal or exceed expenses for such operation for each succeeding fiscal year, and (iii) a mechanism under which the Public Entity will annually determine that the Counterparty is using the portion of the Real Property and, if applicable, Facility that is the subject of the Use Contract to operate the State Program. E. It must allow for termination by the Public Entity in the event of a default thereunder by the Counterparty, or in the event that the State Program is terminated or changed in a manner that precludes the operation of such program in the portion of the Real Property and, if applicable, Facility that is the subject of the Use Contract. F. It must terminate upon the termination of the statutory authority under which the Public Entity is operating the State Program. DEED Greater MN Business Development Public Infrastructure Program 15 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) G. It must require the Counterparty to pay all costs of operation and maintenance of that portion of the Real Property and, if applicable, Facility that is the subject of the Use Contract, unless the Public Entity is authorized by law to pay such costs and agrees to pay such costs. H. If the Public Entity pays monies to a Counterparty under a Use Contract, such Use Contract must meet the requirements of Rev. Proc. 97-13, 1997-1 CB 632, so that such Use Contract does not result in "private business use" under Section 141(b) of the Code. L It must be approved, in writing, by the Commissioner of MMB, and any Use Contract that is not approved, in writing, by the Commissioner of MMB shall be null and void and of no force or effect. J. It must contain a provision requiring that each and every party thereto shall, upon direction by the Commissioner of MMB, take such actions and furnish such documents to the Commissioner of MMB as the Commissioner of MMB determines to be necessary to ensure that the interest to be paid on the G.O. Bonds is exempt from federal income taxation. K. It must contain a provision that prohibits the Counterparty from creating or allowing, without the prior written consent of DEED and the Commissioner of MMB, any voluntary lien or encumbrance or involuntary lien or encumbrance that can be satisfied by the payment of monies and which is not being actively contested against the Real Property or, if applicable, Facility, the Public Entity's ownership interest in the Real Property or, if applicable, Facility, or the Counterparty's interest in the Use Contract, whether such lien or encumbrance is superior or subordinate to the Declaration. Provided, however, DEED and the Commissioner of MMB will consent, in writing, to any such lien or encumbrance that secures the repayment of a loan the repayment of which will not impair or burden the funds needed to operate the portion of the Real Property and, if applicable, Facility that is the subject of the Use Contract in the manner specified in Section 2.04 and for which the entire amount is used (i) to acquire additional real estate that is needed to so operate the Real Property and, if applicable, Facility in accordance with the requirements imposed under Section 2.04 and will be included in and as part of the Public Entity's ownership interest in the Real Property and, if applicable, Facility, and/or (ii) to pay for capital improvements that are needed to so operate the Real Property and, if applicable, Facility in accordance with the requirements imposed under Section 2.04. L. If the amount of the Program Grant exceeds $200,000.00, then it must contain a provision requiring the Counterparty to list any vacant or new positions it may have with state workforce centers as required by Minn. Stat. § 116L.66, as it may be amended, modified or replaced from time to time, for the term of the Use Contract. M. It must contain a provision that clearly states that the Public Entity is not required to renew the Use Agreement beyond the original term thereof and that the Public Entity may, at its sole option and discretion, allow the Use Agreement to expire at the end of its original term and thereafter directly operate the governmental program in the Real Property and, if applicable, Facility or contract with some other entity to operate the governmental program in the Real Property and, if applicable, Facility. DEED Greater NIN Business Development Public Infrastructure Program 16 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) Section 3.02 Initial Term and Renewal. The initial term for a Use Contract may not exceed the lesser of (i) 50% of the Useful Life of the Real Property and, if applicable, Facility for the portion of the Real Property and, if applicable, Facility that is the subject of the Use Contract, or (ii) the shortest term of the Public Entity's ownership interest in the Real Property and, if applicable, Facility. A Use Contract may allow for renewals beyond its initial term on the conditions that(i) the term of any renewal may not exceed the initial term, (ii) the Public Entity must make a determination that renewal will continue to carry out the State Program and that the Counterparty is suited and able to perform the functions contained in Use Contract that is to be renewed, (iii) the Use Contract may not include any provisions that would require, either directly or indirectly, the Public Entity to either make the determination referred to in this Section or to renew the Use Contract with the Counterparty after the expiration of the initial term or any renewal term, and (iv) no such renewal may occur prior to the date that is 6 months prior to the date on which the Use Contract is scheduled to terminate. Provided, however, notwithstanding anything to the contrary contained herein the Public Entity's voluntary agreement to reimburse the Counterparty for any investment that the Counterparty provided for the acquisition or betterment of the Real Property and, if applicable, Facility that is the subject of the Use Contract if the Public Entity does not renew a Use Contract if requested by the Counterparty is not deemed to be a provision that directly or indirectly requires the Public Entity to renew such Use Contract. Section 3.03 Reimbursement of Counterparty. A Use Contract may but need not contain, at the sole option and discretion of the Public Entity, a provision that requires the Public Entity to reimburse the Counterparty for any investment that the Counterparty provided for the acquisition or betterment of the Real Property and, if applicable, Facility that is the subject of the Use Contract if the Public Entity does not renew a Use Contract if requested by the Counterparty. If agreed to by the Public Entity, such reimbursement shall be on terms and conditions agreed to by the Public Entity and the Counterparty. Section 3.04 Receipt of Monies Under a Use Contract. The Public Entity does not anticipate the receipt of any funds under a Use Contract; provided, however, if the Public Entity does receive any monies under a Use Contract in excess of the amount the Public Entity needs and is authorized to use to pay the operating expenses of the portion of the Real Property and, if applicable, Facility that is the subject of a Use Contract, and to pay the principal, interest, redemption premiums, and other expenses on Approved Debt, then a portion of such excess monies must be paid by the Public Entity to the Commissioner of MMB. The portion of such excess monies that the Public Entity must and shall pay to the Commissioner of MMB shall be determined by the Commissioner of MMB, and absent circumstances which would indicate otherwise such portion shall be determined by multiplying such excess monies by a fraction the numerator of which is the Program Grant and the denominator of which is sum of the Program Grant and the Approved Debt. DEED Greater NIN Business Development Public Infrastructure Program 17 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) Article IV SALE Section 4.01 Sale. The Public Entity shall not sell any part of its ownership interest in the Real Property and, if applicable, Facility unless all of the following provisions have been complied with fully. A. The Public Entity determines, by official action, that the such ownership interest is no longer usable or needed for the operation of the State Program, which such determination may be based on a determination that the portion of the Real Property or, if applicable, Facility to which such ownership interest applies is no longer suitable or financially feasible for such purpose. B. The sale is made as authorized by law. C. The sale is for Fair Market Value. D. The written consent of the Commissioner of MMB has been obtained. The acquisition of the Public Entity's ownership interest in the Real Property and, if applicable, Facility at a foreclosure sale, by acceptance of a deed-in-lieu of foreclosure, or enforcement of a security interest in personal property used in the operation thereof, by a lender that has provided monies for the acquisition of the Public Entity's ownership interest in or betterment of the Real Property and, if applicable, Facility shall not be considered a sale for the purposes of this Agreement if after such acquisition the lender operates such potion of the Real Property and, if applicable, Facility in a manner which is not inconsistent with the requirements imposed under Section 2.04 and the lender uses its best efforts to sell such acquired interest to a third party for Fair Market Value. The lender's ultimate sale or disposition of the acquired interest in the Real Property and, if applicable, Facility shall be deemed to be a sale for the purposes of this Agreement, and the proceeds thereof shall be disbursed in accordance with the provisions contained in Section 4.02. The Public Entity may participate in any public auction of its ownership interest in the Real Property and, if applicable, Facility and bid thereon; provided that the Public Entity agrees that if it is the successful purchaser it will not use any part of the Real Property or, if applicable, Facility for the State Program. Section 4.02 Proceeds of Sale. Upon the sale of the Public Entity's ownership interest in the Real Property and, if applicable, Facility the proceeds thereof after the deduction of all costs directly associated and incurred in conjunction with such sale and such other costs that are approved, in writing by the Commissioner of MMB, but not including the repayment of any debt associated with the Public Entity's ownership interest in the Real Property and, if applicable, Facility, shall be disbursed in the following manner and order. A. The first distribution shall be to the Commissioner of MMB in an amount equal to the Outstanding Balance of the Program Grant, and if the amount of such net proceeds shall be less than the amount of the Outstanding Balance of the Program Grant then all of such net proceeds shall be distributed to the Commissioner of MMB. DEED Greater NIN Business Development Public Infrastructure Program 18 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) B. The remaining portion, after the distribution specified in Section 4.02.A, shall be distributed to (i) pay in full any outstanding Approved Debt, (ii) reimburse the Public Entity for its Ownership Value, and (iii) to pay interested public and private entities, other than any such entity that has already received the full amount of its contribution (such as DEED under Section 4.02.A and the holders of Approved Debt paid under this Section 4.02.13), the amount of money that such entity contributed to the Initial Acquisition and Betterment Costs and the Subsequent Betterment Costs. If such remaining portion is not sufficient to reimburse interested public and private entities for the full amount that such entities contributed to the acquisition or betterment of the Real Property and, if applicable, Facility, then the amount available shall be distributed as such entities may agree in writing, and if such entities cannot agree by an appropriately issued court order. C. The remaining portion, after the distributions specified in Sections 4.02.A and B, shall be divided and distributed to DEED, the Public Entity, and any other public and private entity that contributed funds to the Initial Acquisition and Betterment Costs and the Subsequent Betterment Costs, other than lenders who supplied any of such funds, in proportion to the contributions that DEED, the Public Entity, and such other public and private entities made to the acquisition and betterment of the Real Property and, if applicable, Facility as such amounts are part of the Ownership Value, Initial Acquisition and Betterment Costs, and Subsequent Betterment Costs. The distribution to DEED shall be made to the Commissioner of MMB, and the Public Entity may direct its distribution to be made to any other entity including, but not limited to, a Counterparty. All amounts to be disbursed under this Section 4.02 must be consented to, in writing, by the Commissioner of MMB, and no such disbursements shall be made without such consent. The Public Entity shall not be required to pay or reimburse DEED or the Commissioner of MMB for any funds above and beyond the full net proceeds of such sale, even if such net proceeds are less than the amount of the Outstanding Balance of the Program Grant. Article V COMPLIANCE WITH G.O. COMPLIANCE LEGISLATION AND THE COMMISSIONER'S ORDER Section 5.01 State Bond Financed Property. The Public Entity and DEED acknowledge and agree that the Public Entity's ownership interest in the Real Property and, if applicable, Facility is, or when acquired by the Public Entity will be, "state bond financed property", as such term is used in the G.O. Compliance Legislation and the Commissioner's Order, and, therefore, the provisions contained in such statute and order apply, or will apply, to the Public Entity's ownership interest in the Real Property and, if applicable, Facility and any Use Contracts relating thereto. Section 5.02 Preservation of Tax Exempt Status. In order to preserve the tax-exempt status of the G.O. Bonds, the Public Entity agrees as follows: DEED Greater NIN Business Development Public Infrastructure Program 19 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) A. It will not use the Real Property or, if applicable, Facility, or use or invest the Program Grant or any other sums treated as "bond proceeds" under Section 148 of the Code including "investment proceeds," "invested sinking funds," and "replacement proceeds," in such a manner as to cause the G.O. Bonds to be classified as "arbitrage bonds" under Section 148 of the Code. B. It will deposit into and hold all of the Program Grant that it receives under this Agreement in a segregated non-interest bearing account until such funds are used for payments for the Project in accordance with the provisions contained herein. C. It will, upon written request, provide the Commissioner of MMB all information required to satisfy the informational requirements set forth in the Code including,but not limited to, Sections 103 and 148 thereof, with respect to the GO Bonds. D. It will, upon the occurrence of any act or omission by the Public Entity or any Counterparty that could cause the interest on the GO Bonds to no longer be tax exempt and upon direction from the Commissioner of MMB, take such actions and furnish such documents as the Commissioner of MMB determines to be necessary to ensure that the interest to be paid on the G.O. Bonds is exempt from federal taxation, which such action may include either: (i) compliance with proceedings intended to classify the G.O. Bonds as a "qualified bond" within the meaning of Section 141(e) of the Code, (ii) changing the nature or terms of the Use Contract so that it complies with Revenue Procedure 97-13, 1997-1 CB 632, or (iii) changing the nature-of the use of the Real Property or, if applicable, Facility so that none of the net proceeds of the G.O. Bonds will be used, directly or indirectly, in an "unrelated trade or business" or for any "private business use" (within the meaning of Sections 141(b) and 145(a) of the Code), or (iv) compliance with other Code provisions, regulations, or revenue procedures which amend or supersede the foregoing. E. It will not otherwise use any of the Program Grant, including earnings thereon, if any, or take or permit to or cause to be taken any action that would adversely affect the exemption from federal income taxation of the interest on the G.O. Bonds, nor otherwise omit, take, or cause to be taken any action necessary to maintain such tax exempt status, and if it should take, permit, omit to take, or cause to be taken, as appropriate, any such action, it shall take all lawful actions necessary to rescind or correct such actions or omissions promptly upon having knowledge thereof. Section 5.03 Changes to G.O. Compliance Legislation or the Commissioner's Order. In the event that the G.O. Compliance Legislation or the Commissioner's Order is amended in a manner that reduces any requirement imposed against the Public Entity, or if the Public Entity's ownership interest in the Real Property or, if applicable, Facility is exempt from the G.O. Compliance Legislation and the Commissioner's Order, then upon written request by the Public Entity DEED shall enter into and execute an amendment to this Agreement to implement herein such amendment to or exempt the Public Entity's ownership interest in the Real Property and, if applicable, Facility from the G.O. Compliance Legislation or the Commissioner's Order. DEED Greater MN Business Development Public Infrastructure Program 20 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) Article VI DISBURSEMENT OF GRANT PROCEEDS Section 6.01 Draw Requisitions. Whenever the Public Entity desires a disbursement of a portion of the Program Grant, the Public Entity shall submit to DEED a Draw Requisition duly executed on behalf of the Public Entity or its designee. Each Draw Requisition with respect to construction items shall be limited to 50 percent of amounts equal to: (i) the total value of the classes of the work by percentage of completion as approved by the Public Entity and DEED, plus (ii) the value of materials and equipment not incorporated in the Project but delivered and suitably stored on or off the Real Property in a manner acceptable to DEED, less (iii) any applicable retainage. Notwithstanding anything herein to the contrary, no payments for materials stored on or off the Real Property will be made by DEED unless the Public Entity shall advise DEED, in writing, of its intention to so store materials prior to their delivery and DEED has not objected thereto. At the time of submission of each Draw Requisition, other than the final Draw Requisition, the Public Entity shall submit to DEED such supporting evidence as may be requested by DEED to substantiate all payments which are to be made out of the relevant Draw Requisition or to substantiate all payments then made with respect to the Project. At the time of submission of the final Draw Requisition which shall not be submitted before completion of the Project, including all landscape requirements and off-site utilities and streets needed for access to the Real Property and, if applicable, Facility and correction of material defects in workmanship or materials (other than the completion of punch list items) as provided in the Construction Contract Documents, the Public Entity shall submit to DEED: (i) such supporting evidence as may be requested by DEED to substantiate all payments which are to be made out of the final Draw Requisition or to substantiate all payments then made with respect to the Project, and (ii) satisfactory evidence that all work requiring inspection by municipal or other governmental authorities having jurisdiction has been duly inspected and approved by such authorities, and that all requisite certificates of occupancy and other approvals have been issued. If on the date a payment is desired the Public Entity has complied with all requirements of this Agreement and DEED approves the relevant Draw Requisition and receives a current construction report from the Inspecting Engineer recommending payment, then DEED shall disburse the amount of the requested payment to the Public Entity. Section 6.02 Additional Funds. If DEED shall at any time in good faith determine that the sum of the undisbursed amount of the Program Grant plus the amount of all other funds committed to the Project is less than the amount required to pay all costs and expenses of any kind which reasonably may be anticipated in connection with the Project, then DEED may send written notice thereof to the Public Entity specifying the amount which must be supplied in order to provide sufficient funds to complete the Project. The Public Entity agrees that it will, within 10 calendar days of receipt of any such notice, supply or have some other entity supply the amount of funds specified in DEED's notice. DEED Greater NIN Business Development Public Infrastructure Program 21 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) Section 6.03 Condition Precedent to Any Payment. The obligation of DEED to make any payment hereunder (including the initial payment) shall be subject to the following conditions precedent: A. DEED shall have received a Draw Requisition for such payment specifying the amount of funds being requested, which such amount when added to all prior requests for an payment shall not exceed the amount of the Program Grant delineated in Section 1.01. B. DEED shall have received a duly executed Declaration that has been duly recorded in the appropriate governmental office, with all of the recording information displayed thereon, or evidence that such Declaration will promptly be recorded and delivered to DEED. C. DEED shall have received evidence, in form and substance acceptable to DEED, that (i) the Public Entity has legal authority to and has taken all actions necessary to enter into this Agreement and the Declaration, and (ii) this Agreement and the Declaration are binding on and enforceable against the Public Entity. D. DEED shall have received evidence, in form and substance acceptable to DEED, that the Public Entity has sufficient funds to fully and completely pay for the Project and all other expenses that may occur in conjunction therewith. E. DEED shall have received evidence, in form and substance acceptable to DEED, that the Public Entity is in compliance with the matching funds requirements, if any, contained in Section 7.23. F. DEED shall have received evidence, in form and substance acceptable to DEED, showing that the Public Entity possesses the ownership interest delineated in Section 2.02. G. DEED shall have received evidence, in form and substance acceptable to DEED, that the Real Property and, if applicable, Facility, and the contemplated use thereof are permitted by and will comply with all applicable use or other restrictions and requirements imposed by applicable zoning ordinances or regulations, and, if required by law, have been duly approved by the applicable municipal or governmental authorities having jurisdiction thereover. H. DEED shall have received evidence, in form and substance acceptable to DEED, that that all applicable and required building permits, other permits, bonds and licenses necessary for the Project have been paid for, issued, and obtained, other than those permits, bonds and licenses which may not lawfully be obtained until a future date or those permits, bonds and licenses which in the ordinary course of business would normally not be obtained until a later date. I. DEED shall have received evidence, in form and substance acceptable to DEED, that that all applicable and required permits, bonds and licenses necessary for the operation of the Real Property and, if applicable, Facility in the manner specified in Section 2.04 have been paid for, issued, and obtained, other than those permits, bonds and DEED Greater MN Business Development Public Infrastructure Program 22 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) licenses which may not lawfully be obtained until a future date or those permits, bonds and licenses which in the ordinary course of business would normally not be obtained until a later date. J. DEED shall have received evidence, in form and substance acceptable to DEED, that the Project will be completed in a manner that will allow the Real Property and, if applicable, Facility to be operated in the manner specified in Section 2.04. K. DEED shall have received evidence, in form and substance acceptable to DEED, that the Public Entity has the ability and a plan to fund the operation of the Real Property and, if applicable, Facility in the manner specified in Section 2.04. L. DEED shall have received evidence, in form and substance acceptable to DEED, that the insurance requirements under Section 7.01 have been satisfied. M. DEED shall have received evidence, in form and substance acceptable to DEED, of compliance with the provisions and requirements specified in Section 7.10 and all additional applicable provisions and requirements, if any, contained in Minn. Stat. § 1613.335, as it may be amended, modified or replaced from time to time. Such evidence shall include, but not be limited to, evidence that: (i) the predesign package referred to in Section 7.10.13 has, if required, been reviewed by and received a favorable recommendation from the Commissioner of Administration for the State of Minnesota, (ii) the program plan and cost estimates referred to in Section 7.10.0 have, if required, received a recommendation by the Chairs of the Minnesota State Senate Finance Committee and Minnesota House of Representatives Ways and Means Committee, and (iii) the Chair of the Minnesota House of Representatives Capital Investment Committee has, if required,been notified pursuant to Section 7.10.G. N. No Event of Default under this Agreement or event which would constitute an Event of Default but for the requirement that notice be given or that a period of grace or time elapse shall have occurred and be continuing. O. DEED shall have received evidence, in form and substance acceptable to DEED, that the Contractor will complete the Construction Items substantially in conformance with the Construction Contract Documents and pay all amounts lawfully owing to all laborers and materialmen who worked on the Construction Items or supplied materials therefore, other than amounts being contested in good faith. Such evidence may be in the form of payment and performance bonds in amounts equal to or greater than the amount of the fixed price or guaranteed maximum price contained in the Construction Contract Documents that name DEED and the Public Entity dual obligees thereunder, or such other evidence as may be acceptable to the Public Entity and DEED. P. No determination shall have been made by DEED that the amount of funds committed to the Project is less than the amount required to pay all costs and expenses of any kind that may reasonably be anticipated in connection with the Project, or if such a determination has been made and notice thereof sent to the Public Entity under Section 6.03, then the Public Entity has supplied, or has caused some other entity to supply, the DEED Greater NIN Business Development Public Infrastructure Program 23 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) necessary funds in accordance with such section or has provided evidence acceptable to DEED that sufficient funds are available. Q. The Public Entity has supplied to DEED all other items that DEED may reasonably require. Section 6.04 Construction Inspections. The Public Entity shall be responsible for making their own inspections and observations of the Construction Items, and shall determine to their own satisfaction that the work done or materials supplied by the Contractors to whom payment is to be made in accordance with the Construction Contract Documents. If any work done or materials supplied by a Contractor are not satisfactory to the Public Entity or if a Contractor is not in material compliance with the Construction Contract Documents in any respect, then the Public Entity shall immediately notify DEED, in writing. DEED and the Inspecting Engineer, if any, may conduct such inspections of the Construction Items as either may deem necessary for the protection of DEED's interest, and that any inspections which may be made of the Project by DEED or the Inspecting Engineer, if any, are made and all certificates issued by the Inspecting Engineer, if any, will be issued solely for the benefit and protection of DEED, and the Public Entity will not rely thereon. Article VII MISCELLANEOUS Section 7.01 Insurance. The Public Entity shall, upon acquisition of the ownership interest delineated in Section 2.02, insure the Facility, if such exists, in an amount equal to the full insurable value thereof(i) by self insuring under a program of self insurance legally adopted, maintained and adequately funded by the Public Entity, or (ii) by way of builders risk insurance and fire and extended coverage insurance with a deductible in an amount acceptable to DEED under which DEED and the Public Entity are named as loss payees. If damages which are covered by such required insurance occur, then the Public Entity shall, at its sole option and discretion, either: (y) use or cause the insurance proceeds to be used to fully or partially repair such damage and to provide or cause to be provided whatever additional funds that may be needed to fully or partially repair such damage, or (z) sell its ownership interest in the damaged Facility and portion of the Real Property associated therewith in accordance with the provisions contained in Section 4.01. If the Public Entity elects to only partially repair such damage, then the portion of the insurance proceeds not used for such repair shall be applied in accordance with the provisions contained in Section 4.02 as if the Public Entity's ownership interest in the Real Property and Facility had been sold, and such amounts shall be credited against the amounts due and owing under Section 4.02 upon the ultimate sale of the Public Entity's ownership interest in the Real Property and Facility. If the Public Entity elects to sell its ownership interest in the damaged Facility and portion of the Real Property associated therewith, then such sale must occur within a reasonable time period from the date the damage occurred and the cumulative sum of the insurance proceeds plus the proceeds of such sale must be applied in accordance with the provisions contained in Section 4.02, with the insurance proceeds being so applied within a reasonable time period from the date they are received by the Public Entity. DEED Greater NIN Business Development Public Infrastructure Program 24 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) DEED agrees to and will assign or pay over to the Public Entity all insurance proceeds it receives so that the Public Entity can comply with the requirements that this Section imposes thereon as to the use of such insurance proceeds. If the Public Entity elects to maintain general comprehensive liability insurance regarding the Real Property and, if applicable, Facility, then the Public Entity shall have DEED as an additional named insured therein. The Public Entity may require a Counterparty to provide and maintain any or all of the insurance required under this Section; provided that the Public Entity continues to be responsible for the providing of such insurance in the event that the Counterparty fails to provide or maintain such insurance. At the written request of either DEED or the Commissioner of MM13, the Public Entity shall promptly furnish to the requesting entity all written notices and all paid premium receipts received by the Public Entity regarding the required insurance, or certificates of insurance evidencing the existence of such required insurance. If the Public Entity fails to provide and maintain the insurance required under this Section, then DEED may, at its sole option and discretion, obtain and maintain insurance of an equivalent nature and any funds expended by DEED to obtain or maintain such insurance shall be due and payable on demand by DEED and bear interest from the date of advancement by DEED at a rate equal to the lesser of the maximum interest rate allowed by law or 18% per annum based upon a 365 day year. Provided, however, nothing contained herein, including but not limited to this Section, shall require DEED to obtain or maintain such insurance, and DEED's decision to not obtain or maintain such insurance shall not lessen the Public Entity's duty to obtain and maintain such insurance. Section 7.02 Condemnation. If after the Public Entity has acquired the ownership interest delineated in Section 2.02 all or any portion of the Real Property and, if applicable, Facility is condemned to an extent that the Public Entity can no longer comply with the provisions contained in Section 2.04, then the Public Entity shall, at its sole option and discretion, either: (i) use or cause the condemnation proceeds to be used to acquire an interest in additional real property needed for the Public Entity to continue to comply with the provisions contained in Section 2.04 and, if applicable, to fully or partially restore the Facility and to provide or cause to be provided whatever additional funds that may be needed for such purposes, or (ii) sell the remaining portion of its ownership interest in the Real Property and, if applicable, Facility in accordance with the provisions contained in Section 4.01. Any condemnation proceeds which are not used to acquire an interest in additional real property or to restore, if applicable, the Facility shall be applied in accordance with the provisions contained in Section 4.02 as if the Public Entity's ownership interest in the Real Property and, if applicable, Facility had been sold, and such amounts shall be credited against the amounts due and owing under Section 4.02 upon the ultimate sale of the Public Entity's ownership interest in the remaining Real Property and, if applicable, Facility. If the Public Entity elects to sell its ownership interest in the portion of the Real Property and, if applicable, Facility that remains after the condemnation, then such sale must occur within a reasonable time period from the date the condemnation occurred and the cumulative sum of the condemnation proceeds plus the proceeds of such sale must be applied in accordance with the provisions contained in Section 4.02, with DEED Greater MN Business Development Public Infrastructure Program 25 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) the condemnation proceeds being so applied within a reasonable time period from the date they are received by the Public Entity. As recipient of any of condemnation awards or proceeds referred to herein, DEED agrees to and will disclaim, assign or pay over to the Public Entity all of such condemnation awards or proceeds it receives so that the Public Entity can comply with the requirements that this Section imposes upon the Public Entity as to the use of such condemnation awards or proceeds. Section 7.03 Use, Maintenance, Repair and Alterations. The Public Entity shall (i) keep the Real Property and, if applicable, Facility, in good condition and repair, subject to reasonable and ordinary wear and tear, (ii) complete promptly and in good and workmanlike manner any building or other improvement which may be constructed on the Real Property and promptly restore in like manner any portion of the Facility, if applicable, which may be damaged or destroyed thereon and pay when due all claims for labor performed and materials furnished therefore, (iii) comply with all laws, ordinances, regulations, requirements, covenants, conditions and restrictions now or hereafter affecting the Real Property or, if applicable, Facility, or any part thereof, or requiring any alterations or improvements thereto, (iv) keep and maintain abutting grounds, sidewalks, roads, parking and landscape areas in good and neat order and repair, (v) comply with the provisions of any Real Property/Facility Lease if the Public Entity's ownership interest in the Real Property and, if applicable, Facility, is a leasehold interest, (vi) comply with the provisions of any easement if its ownership interest in the Real Property and, if applicable, Facility is by way of such easement, and (vii) comply with the provisions of any condominium documents and any applicable reciprocal easement or operating agreements if the Real Property and, if applicable, Facility, is part of a condominium regime or is subject to a reciprocal easement or use agreement. The Public Entity shall not, without the written consent of DEED and the Commissioner of MMB, (a) permit or suffer the use of any of the Real Property or, if applicable, Facility, for any purpose other than the purposes specified in Section 2.04, (b) remove, demolish or substantially alter any of the Real Property or, if applicable, Facility, except such alterations as may be required by laws, ordinances or regulations or such other alterations as may improve such Real Property or, if applicable, Facility by increasing the value thereof or improving its ability to be used to operate the State Program thereon or therein, (c) do any act or thing which would unduly impair or depreciate the value of the Real Property or, if applicable, Facility, (d) abandon the Real Property or, if applicable, Facility, (e) commit or permit any waste or deterioration of the Real Property or, if applicable, Facility, (f) remove any fixtures or personal property from the Real Property or, if applicable, Facility, that was paid for with the proceeds of the Program Grant unless the same are immediately replaced with like property of at least equal value and utility, or (g) commit, suffer or permit any act to be done in or upon the Real Property or, if applicable, Facility, in violation of any law, ordinance or regulation. If the Public Entity fails to maintain the Real Property and, if applicable, Facility in accordance with the provisions contained in this Section, then DEED may perform whatever acts and expend whatever funds that are necessary to so maintain the Real Property and, if applicable, Facility and the Public Entity irrevocably authorizes and empowers DEED to enter upon the Real Property and, if applicable, Facility, to perform such acts as may to necessary to so maintain the Real Property and, if applicable, Facility. Any actions taken or funds expended by DEED hereunder shall be at its sole option and discretion, and nothing contained herein, including but DEED Greater NIN Business Development Public Infrastructure Program 26 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) not limited to this Section, shall require DEED to take any action, incur any expense, or expend any funds, and DEED shall not be responsible for or liable to the Public Entity or any other entity for any such acts that are undertaken and performed in good faith and not in a negligent manner. Any funds expended by DEED to perform such acts as may to necessary to so maintain the Real Property and, if applicable, Facility shall be due and payable on demand by DEED and bear interest from the date of advancement by DEED at a rate equal to the lesser of the maximum interest rate allowed by law or 18% per annum based upon a 365 day year. Section 7.04 Records Keeping and Reporting. The Public Entity shall maintain or cause to be maintained books, records, documents and other evidence pertaining to the costs or expenses associated with the Project and operation of the Real Property and, if applicable, Facility needed to comply with the requirements contained in this Agreement, the G.O. Compliance Legislation, the Commissioner's Order, and the State Program Enabling Legislation, and upon request shall allow or cause the entity which is maintaining such items to allow DEED, auditors for DEED, the Legislative Auditor for the State of Minnesota, or the State Auditor for the State of Minnesota, to inspect, audit, copy, or abstract, all of such items. The Public Entity shall use or cause the entity which is maintaining such items to use generally accepted accounting principles in the maintenance of such items, and shall retain or cause to be retained (i) all of such items that relate to the Project for a period of 6 years from the date that the Project is fully completed and placed into operation, and (ii) all of such items that relate to the operation of the Real Property and, if applicable, Facility for a period of 6 years from the date such operation is initiated. Section 7.05 Inspections by State Entity. Upon reasonable request by DEED and without interfering with the normal use of the Real Property and, if applicable, Facility, the Public Entity shall allow, and will require any entity to whom it leases, subleases, or enters into a Use Contract for any portion of the Real Property and, if applicable, Facility to allow DEED to inspect the Real Property and, if applicable, Facility. Section 7.06 Data Practices. The Public Entity agrees with respect to any data that it possesses regarding the Program Grant, the Project, or the operation of the Real Property and, if applicable, Facility, to comply with all of the provisions and restrictions contained in the Minnesota Government Data Practices Act contained in Chapter 13 of the Minnesota Statutes that exists as of the date of this Agreement and as such may subsequently be amended, modified or replaced from time to time. Section 7.07 Non-Discrimination. The Public Entity agrees to not engage in discriminatory employment practices regarding the Project, or operation or management of the Real Property and, if applicable, Facility, and it shall, with respect to such activities, fully comply with all of the provisions contained in Chapters 363A and 181 of the Minnesota Statutes that exist as of the date of this Agreement and as such may subsequently be amended, modified or replaced from time to time. Section 7.08 Worker's Compensation. The Public Entity agrees to comply with all of the provisions relating to worker's compensation contained in Minn. Stat. §§ 176.181 subd. 2 and 176.182, as they may be amended, modified or replaced from time to time, with respect to the Project and the operation or management of the Real Property and, if applicable, Facility. DEED Greater NIN Business Development Public Infrastructure Program 27 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) Section 7.09 Antitrust Claims. The Public Entity hereby assigns to DEED and the Commissioner of MMB all claims it may have for over charges as to goods or services provided with respect to the Project, and operation or management of the Real Property and, if applicable, Facility that arise under the antitrust laws of the State of Minnesota or of the United States of America. Section 7.10 Review of Plans and Cost Estimates. The Public Entity agrees to comply with all applicable provisions and requirements, if any, contained in Minn. Stat. § 1613.335, as it may be amended, modified or replaced from time to time, for the Project, and in accordance therewith the Public Entity agrees to comply with the following provisions and requirements if such provisions and requirements are applicable. A. The Public Entity shall provide all information that DEED may request in order for DEED to determine that the Project will comply with the provisions and requirements contained in Minn. Stat. § 1613.335, as it may be amended, modified or replaced from time to time. B. Prior to its proceeding with design activities for the Project the Public Entity shall prepare a predesign package and submit it to the Commissioner of Administration for the State of Minnesota for review and comment. The predesign package must be sufficient to define the purpose, scope, cost, and projected schedule for the Project, and must demonstrate that the Project has been analyzed according to appropriate space and needs standards. Any substantial changes to such predesign package must be submitted to the Commissioner of Administration for the State of Minnesota for review and comment. C. If the Project includes the construction of a new building, substantial addition to an existing building, a substantial change to the interior configuration of an existing building, or the acquisition of an interest in land, then the Public Entity shall not prepare final plans and specifications until it has prepared a program plan and cost estimates for all elements necessary to complete the Project and presented them to the Chairs of the Minnesota State Senate Finance Committee and Minnesota House of Representatives Ways and Means Committee and the chairs have made their recommendations, and it has notified the Chair of the Minnesota House of Representatives Capital Investment Committee. The program plan and cost estimates must note any significant changes in the work to be performed on the Project, or in its costs, which have arisen since the appropriation from the legislature for the Project was enacted or which differ from any previous predesign submittal. D. The Public Entity must notify the Chairs of the Minnesota State Senate Finance Committee, the Minnesota House of Representatives Capital Investment Committee and the Minnesota House of Representatives Ways and Means Committee of any significant changes to the program plan and cost estimates referred to in Section 7.10.C. E. The program plan and cost estimates referred to in Section 7.10.0 must ensure that the Project will comply with all applicable energy conservation standards contained in law, including Minn. Stat. §§ 216C.19 to 216C.20, as they may be amended, modified or replaced from time to time, and all rules adopted thereunder. DEED Greater NIN Business Development Public Infrastructure Program 28 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) F. If any of the Program Grant is to be used for the construction or remodeling of the Facility, then both the predesign package referred to in Section 7.10.13 and the program plan and cost estimates referred to in Section 7.10.0 must include provisions for cost- effective information technology investments that will enable the occupant of the Facility to reduce its need for office space, provide more of its services electronically, and decentralize its operations. G. If the Project does not involve the construction of a new building, substantial addition to an existing building, substantial change to the interior configuration of an existing building, or the acquisition of an interest in land, then prior to beginning work on the Project the Public Entity shall just notify the Chairs of the Minnesota State Senate Finance Committee, the Minnesota House of Representatives Capital Investment Committee and the Minnesota House of Representatives Ways and Means Committee that the work to be performed is ready to begin. H. The Project must be: (i) substantially completed in accordance with the program plan and cost estimates referred to in Section 7.10.C, (ii) completed in accordance with the time schedule contained in the program plan referred to in Section 7.10.C, and (iii) completed within the budgets contained in the cost estimates referred to in Section 7.10.C. Provided, however, the provisions and requirements contained in this Section only apply to public lands or buildings or other public improvements of a capital nature, and shall not apply to the demolition or decommissioning of state assets, hazardous material projects, utility infrastructure projects, environmental testing, parking lots, exterior lighting, fencing, highway rest areas, truck stations, storage facilities not consisting primarily of offices or heated work areas, roads, bridges, rails, pathways, campgrounds, athletic fields, dams, floodwater retention systems, water access sites, harbors, sewer separation projects, water and wastewater facilities, port development projects for which the Commissioner of Transportation for the State of Minnesota has entered into an assistance agreement under Minn. Stat. § 457A.04, as it may be amended, modified or replaced from time to time, ice arenas, local government projects with a construction cost of less than $1,500,000.00, or any other capital project with a construction cost of less than $750,000.00. Section 7.11 Prevailing Wages. The Public Entity agrees to comply with all of the applicable provisions contained in Chapter 177 of the Minnesota Statutes, and specifically those provisions contained in Minn. Stat. §§ 177.41 through 177.435, as they may be amended, modified or replaced from time to time with respect to the Project and the operation of the State Program on or in the Real Property and, if applicable, Facility. By agreeing to this provision, the Public Entity is not acknowledging or agreeing that the cited provisions apply to the Project or the operation of the State Program on or in the Real Property and, if applicable, Facility. Section 7.12 Liability. The Public Entity and DEED agree that they will, subject to any indemnifications provided herein, be responsible for their own acts and the results thereof to the extent authorized by law, and they shall not be responsible for the acts of the other party and the results thereof. The liability of DEED and the Commissioner of MMB is governed by the provisions contained in Minn. Stat. § 3.736, as it may be amended, modified or replaced from time to time. If the Public Entity is a "municipality" as such term is used in Chapter 466 of the Minnesota Statutes that exists as of the date of this Agreement and as such may subsequently be DEED Greater NIN Business Development Public Infrastructure Program 29 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) amended, modified or replaced from time to time, then the liability of the Public Entity, including but not limited to the indemnification provided under Section 7.13, is governed by the provisions contained in such Chapter 466. Section 7.13 Indemnification by the Public Entity. The Public Entity shall bear all loss, expense (including attorneys' fees), and damage in connection with the Project and operation of the Real Property and, if applicable, Facility, and agrees to indemnify and hold harmless DEED, the Commissioner of MMB, and the State of Minnesota, their agents, servants and employees from all claims, demands and judgments made or recovered against DEED, the Commissioner of MMB, and the State of Minnesota, their agents, servants and employees, because of bodily injuries, including death at any time resulting therefrom, or because of damages to property of DEED, the Commissioner of MMB, or the State of Minnesota, or others (including loss of use) from any cause whatsoever, arising out of, incidental to, or in connection with the Project or operation of the Real Property and, if applicable, Facility, whether or not due to any act of omission or commission, including negligence of the Public Entity or any contractor or his or their employees, servants or agents, and whether or not due to any act of omission or commission (excluding, however, negligence or breach of statutory duty) of DEED, the Commissioner of MMB, or the State of Minnesota, their employees, servants or agents. The Public Entity further agrees to indemnify, save, and hold DEED, the Commissioner of MMB, and the State of Minnesota, their agents and employees, harmless from all claims arising out of, resulting from, or in any manner attributable to any violation by the Public Entity, its officers, employees, or agents, or by any Counterparty, its officers, employees, or agents, of any provision of the Minnesota Government Data Practices Act, including legal fees and disbursements paid or incurred to enforce the provisions contained in Section 7.06. The Public Entity's liability hereunder shall not be limited to the extent of insurance carried by or provided by the Public Entity, or subject to any exclusions from coverage in any insurance policy. Section 7.14 Relationship of the Parties. Nothing contained in this Agreement is intended or should be construed in any manner as creating or establishing the relationship of co- partners or a joint venture between the Public Entity, DEED, or the Commissioner of MMB, nor shall the Public Entity be considered or deemed to be an agent, representative, or employee of DEED, the Commissioner of MMB, or the State of Minnesota in the performance of this Agreement, the Project, or operation of the Real Property and, if applicable, Facility. The Public Entity represents that it has already or will secure or cause to be secured all personnel required for the performance of this Agreement and the Project, and the operation and maintenance of the Real Property and, if applicable, Facility. All personnel of the Public Entity or other persons while engaging in the performance of this Agreement, the Project, or the operation and maintenance of the Real Property and, if applicable, Facility shall not have any contractual relationship with DEED, the Commissioner of MMB, or the State of Minnesota and shall not be considered employees of any of such entities. In addition, all claims that may arise on behalf of said personnel or other persons out of employment or alleged employment including, but not limited to, claims under the Workers' Compensation Act of the State of Minnesota, claims of discrimination against the Public Entity, its officers, agents, contractors, or employees shall in no way be the responsibility of DEED, the Commissioner of MMB, or the DEED Greater NIN Business Development Public Infrastructure Program 30 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) State of Minnesota. Such personnel or other persons shall not require nor be entitled to any compensation, rights or benefits of any kind whatsoever from DEED, the Commissioner of MMB, or the State of Minnesota including, but not limited to, tenure rights, medical and hospital care, sick and vacation leave, disability benefits, severance pay and retirement benefits. Section 7.15 Notices. In addition to any notice required under applicable law to be given in another manner, any notices required hereunder must be in writing and shall be sufficient if personally served or sent by prepaid, registered, or certified mail (return receipt requested), to the business address of the party to whom it is directed. Such business address shall be that address specified below or such different address as may hereafter be specified, by either party by written notice to the other: To the Public Entity at: City of Eden Prairie 8080 Mitchell Road Eden Prairie, MN 55344 Attention: David Lindahl To DEED at: 1st National Bank Building 332 Minnesota Street, Suite E200 St. Paul, MN 55101-1351 Attention: DEED, Small Cities Program(SCDP) To the Commissioner of MMB at: Minnesota Department of Management and Budget 400 Centennial Office Bldg. 658 Cedar St. St. Paul, MN 55155 Attention: Commissioner Section 7.16 Binding Effect and Assignment or Modification. This Agreement and the Declaration shall be binding upon and inure to the benefit of the Public Entity and DEED, and their respective successors and assigns. Provided, however, that neither the Public Entity nor DEED may assign any of its rights or obligations under this Agreement or the Declaration without the prior written consent of the other party. No change or modification of the terms or provisions of this Agreement or the Declaration shall be binding on either the Public Entity or DEED unless such change or modification is in writing and signed by an authorized official of the party against which such change or modification is to be imposed. Section 7.17 Waiver. Neither the failure by the Public Entity, DEED, or the Commissioner of MMB, as a third party beneficiary of this Agreement, in any one or more instances to insist upon the complete and total observance or performance of any term or provision hereof, nor the failure of the Public Entity, DEED, or the Commissioner of MMB, as a third party beneficiary of this Agreement, to exercise any right, privilege, or remedy conferred DEED Greater NIN Business Development Public Infrastructure Program 31 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) hereunder or afforded by law shall be construed as waiving any breach of such term, provision, or the right to exercise such right, privilege, or remedy thereafter. In addition, no delay on the part of the Public Entity, DEED, or the Commissioner of MMB, as a third party beneficiary of this Agreement, in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude other or further exercise thereof or the exercise of any other right or remedy. Section 7.18 Entire Agreement. This Agreement, the Declaration, and the documents, if any, referred to and incorporated herein by reference embody the entire agreement between the Public Entity and DEED, and there are no other agreements, either oral or written, between the Public Entity and DEED on the subject matter hereof. Section 7.19 Choice of Law and Venue. All matters relating to the validity, construction, performance, or enforcement of this Agreement or the Declaration shall be determined in accordance with the laws of the State of Minnesota. All legal actions initiated with respect to or arising from any provision contained in this Agreement shall be initiated, filed and venued in the State of Minnesota District Court located in the City of St. Paul, County of Ramsey, State of Minnesota. Section 7.20 Severability. If any provision of this Agreement is finally judged by any court to be invalid, then the remaining provisions shall remain in full force and effect and they shall be interpreted, performed, and enforced as if the invalid provision did not appear herein. Section 7.21 Time of Essence. Time is of the essence with respect to all of the matters contained in this Agreement. Section 7.22 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but such counterparts shall together constitute one and the same instrument. Section 7.23 Matching Funds. The Public Entity must obtain and supply 50% the eligible capital costs for the Project: $275,000 Any matching funds which are intended to meet the above requirements must either be in the form of(i) cash monies, (ii) legally binding commitments for money, or(iii) equivalent funds or contributions, including equity, which have been or will be used to pay for the Project. The Public Entity shall supply to the Commissioner of MMB whatever documentation the Commissioner of MMB may request to substantiate the availability and source of any matching funds, and the source and terms relating to all matching funds must be consented to, in writing, by the Commissioner of MMB. Section 7.24 Source and Use of Funds. The Public Entity represents to DEED and the Commissioner of MMB that Attachment III is intended to be and is a source and use of funds statement showing the total cost of the Project and all of the funds that are available for the completion of the Project, and that the information contained in such Attachment III correctly and accurately delineates the following information. DEED Greater NIN Business Development Public Infrastructure Program 32 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) A. The total cost of the Project detailing all of the major elements that make up such total cost and how much of such total cost is attributed to each such major element. B. The source of all funds needed to complete the Project broken down amongst the following categories: (i) State funds including the Program Grant, identifying the source and amount of such funds. (ii) Matching funds, identifying the source and amount of such funds. (iii) Other funds supplied by the Public Entity, identifying the source and amount of such funds. (iv) Loans, identifying each such loan, the entity providing the loan, the amount of each such loan, the terms and conditions of each such loan, and all collateral pledged for repayment of each such loan. (v) Other funds, identifying the source and amount of such funds. C. Such other financial information that is needed to correctly reflect the total funds available for the completion of the Project, the source of such funds and the expected use of such funds. Previously paid project expenses that are to be reimbursed and paid from proceeds of the G.O. Grant may only be included as a source of funds and included in Attachment III if such items have been approved, in writing, by the Commissioner of MMB. If any of the funds included under the source of funds have conditions precedent to the release of such funds, then the Public Entity must provide to DEED and the Commissioner of MMB a detailed description of such conditions and what is being done to satisfy such conditions. The Public Entity shall also supply whatever other information and documentation that DEED or the Commissioner of MMB may request to support or explain any of the information contained in Attachment III. The value of the Public Entity's ownership interest in the Real Property and, if applicable, Facility should only be shown in Attachment III if such ownership interest is being acquired and paid for with funds shown in such Attachment III, and for all other circumstances such value should be shown in the definition for Ownership Value in Section 1.01 and not included in such Attachment III. The funds shown in Attachment III and to be supplied for the Project may, subject to any limitations contained in the State Program Enabling Legislation, be provided by either the Public Entity or a Counterparty under a Use Contract. Section 7.25 Project Completion Schedule. The Public Entity represents to DEED and the Commissioner of MMB that Attachment IV correctly and accurately delineates the projected schedule for the completion of the Project. Section 7.26 Third-Party Beneficiary. The State Program will benefit the State of Minnesota and the provisions and requirements contained herein are for the benefit of both DEED Greater NIN Business Development Public Infrastructure Program 33 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) DEED and the State of Minnesota. Therefore, the State of Minnesota, by and through its Commissioner of MMB, is and shall be a third-party beneficiary of this Agreement. Section 7.27 Public Entity Tasks. Any tasks that this Agreement imposes upon the Public Entity may be performed by such other entity as the Public Entity may select or designate, provided that the failure of such other entity to perform said tasks shall be deemed to be a failure to perform by the Public Entity. Section 7.28 State Entity and Commissioner Required Acts and Approvals. DEED and the Commissioner of MMB shall not (i) perform any act herein required or authorized by it in an unreasonable manner, (ii) unreasonably refuse to perform any act that it is required to perform hereunder, or (iii) unreasonably refuse to provide or withhold any approval that is required of it herein. Section 7.29 Applicability to Real Property and Facility. This Agreement applies to the Public Entity's ownership interest in the Real Property and if a Facility exists to the Facility. The term "if applicable" appearing in conjunction with the term "Facility" is meant to indicate that this Agreement will apply to a Facility if one exists, and if no Facility exists then this Agreement will only apply to the Public Entity's ownership interest in the Real Property. Section7.30 E-Verification. The Public Entity agrees and acknowledges that it is aware of Governor's Executive Order 08-01 regarding e-verification of employment of all newly hired employees to confirm that such employees are legally entitled to work in the United States, and that it will, if and when applicable, fully comply with such order and impose a similar requirement in any Use Agreement to which it is a party. Section 7.31 Additional Requirements. The Public Entity and DEED agree to comply with the following additional requirements. In the event of any conflict or inconsistency between the following additional requirements and any other provisions or requirement contained in this Agreement, the following additional requirements contained in this Section shall control. (If there are no additional requirements then insert the word "NONE".) NONE DEED Greater NIN Business Development Public Infrastructure Program 34 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) IN TESTIMONY HEREOF, the Public Entity and DEED have executed this General Obligation Bond Proceeds Grant Agreement Construction Grant for the Eden Prairie IBDP Project under the Greater Minnesota Business Development Public Infrastructure Program on the day and date indicated immediately below their respective signatures. PUBLIC ENTITY: STATE ENTITY: City of Eden Prairie, Minnesota Department of Employment and a statutory city Economic Development By: By: Its: Its: Deputy Commissioner Dated: 2 Dated: 2 And: Its: Executed on the day of 2 ENCUMBERED: Department of Employment and Economic Development By: (Name) B22-17783 06/17/11 Date Encumbered [Individual signing certifies that funds have been encumbered as required by Minnesota Statute 16A.] City of Eden Prairie Grant#IBDP-11-0003-0-FY11 DEED Greater NIN Business Development Public Infrastructure Program 35 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) Attachment I to Grant Agreement State of Minnesota Greater Minnesota Business Development Public Infrastructure Program General Obligation Bond Financed DECLARATION The undersigned has the following interest in the real property located in the County of Hennepin, State of Minnesota that is legally described in Exhibit A attached and all facilities situated thereon (collectively referred to as the "Restricted Property"): (Check the appropriate box.) ® a fee simple title, a lease, or an easement, and as owner of such fee title, lease or easement, does hereby declare that such interest in the Restricted Property is hereby made subject to the following restrictions and encumbrances: A. The Restricted Property is bond financed property within the meaning of Minn. Stat. § 16A.695 that exists as of the effective date of the grant agreement identified in paragraph B below, is subject to the encumbrance created and requirements imposed by such statutory provision, and cannot be sold, mortgaged, encumbered or otherwise disposed of without the approval of the Commissioner of Minnesota Management and Budget, or its successor, which approval must be evidenced by a written statement signed by said commissioner and attached to DEED, mortgage, encumbrance or instrument used to sell or otherwise dispose of the Restricted Property; and B. The Restricted Property is subject to all of the terms, conditions, provisions, and limitations contained in that certain Eden Prairie IBDP Project between the City of Eden Prairie and the Minnesota Department of Employment and Economic Development(DEED), dated March 30, 2011 (the "G.O. Grant Agreement"). The Restricted Property shall remain subject to this State of Minnesota General Obligation Bond Financed Declaration for as long as the G.O. Grant Agreement is in force and effect; at which time it shall be released therefrom by way of a written release in recordable form signed by both the Commissioner of Minnesota Department of Employment and Economic Development and the Commissioner of Minnesota of Management and Budget, or their successors, and such DEED Greater NIN Business Development Public Infrastructure Program 36 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) written release is recorded in the real estate records relating to the Restricted Property. This Declaration may not be terminated, amended, or in any way modified without the specific written consent of the Commissioner of Minnesota of Management and Budget, or its successor. PUBLIC ENTITY: City of Eden Prairie, a statutory city By: Its: Dated: 2 And: Its: Executed on the day of 2 STATE OF MINNESOTA ) ss. COUNTY OF ) This Department of Employment and Economic Development Declaration was executed and acknowledged before me on the day of 2 , by the and the of a on behalf of said Notary Public This Declaration was drafted by: Office of Attorney General Suite 300 400 Sibley Street St.Paul,MN 55101-1996 DEED Greater NIN Business Development Public Infrastructure Program 37 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) Exhibit A to Declaration LEGAL DESCRIPTION OF RESTRICTED PROPERTY DEED Greater MN Business Development Public Infrastructure Program 38 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) Attachment II to Grant Agreement LEGAL DESCRIPTION OF REAL PROPERTY DEED Greater MN Business Development Public Infrastructure Program 39 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) Attachment III to Grant Agreement SOURCE AND USE OF FUNDS FOR THE PROJECT Source of Funds Use of Funds Identify Source of Funds Amount Identify Items Amount State GO Funds Ownership Acquisition BDPI/Program Grant $275,000 and Other Items Paid for with Program Grant Funds Other State Funds Purchase of Ownership = $ $ Interest $ Other Items of a Capital $ Nature Sub-Total $275,000 Infrastructure $275,000 Matching Funds $ City of Eden Prairie $550,000 Sub Total $275,000 Sub Total $550 Items Paid for with Non- Program Grant Funds Other Public Entity Funds Infrastructure $550000 Sub-Total Sub Total $550000 Loans Sub-Total $ Other Funds � $ T ............................................................................................... . ......................... Sub-Total $ - Prepaid Project Expenses Sub-Total ' $ TOTAL FUNDS $825� TOTAL PROJECT COSTS $825000 DEED Greater MN Business Development Public Infrastructure Program 40 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) Attachment IV to Grant Agreement PROJECT COMPLETION SCHEDULE DEED Greater NIN Business Development Public Infrastructure Program 41 Ver— 2/16/10 Grant Agreement for Construction Grants (DEED GO GA-Cnstrctn Grnt) ADDENDUM This Addendum amends that certain General Obligation Bond Proceeds Grant Agreement — Construction Grant for the Eden Prairie Innovative Business Development Project, Grant #IBDP-11-0003-0-FY11. 1. Definitions. The following definitions apply to this Addendum. 1.1 "Public Entity" means City of Eden Prairie. 1.2 "DEED" means the Minnesota Department of Employment and Economic Development. 1.3 "Contract" means the General Obligation Bond Proceeds Grant Agreement — Construction Grant for the Eden Prairie Innovative Business Development Project, Grant#IBDP-11-0003-O-FY11. 2. Section 7.13 Indemnification by the Public Entity. Section 7.13 is amended as follows: Section 7.13 Indemnification by the Public Entity. The Public Entity shall bear all loss, expense (including attorneys' fees), and damage in connection with the Project and operation of the Real Property and, if applicable, Facility, and agrees to indemnify and hold harmless DEED, the Commissioner of MMB, and the State of Minnesota, their agents, servants and employees from all claims, demands and judgments made or recovered against DEED, the Commissioner of MMB, and the State of Minnesota, their agents, servants and employees, because of bodily injuries, including death at any time resulting therefrom, or because of damages to property of DEED, the Commissioner of MMB, or the State of Minnesota, or others (including loss of use) from any cause whatsoever, arising out of, incidental to, or in connection with the Project or operation of the Real Property and, if applicable, Facility, whether or not due to any act of omission or commission, including negligence of the Public Entity or any contractor or his or their employees, servants or agents, and whether or not due to any act of omission or commission (excluding, however, negligence or breach of statutory duty) of DEED, the Commissioner of MMB, or the State of Minnesota, their employees, servants or agents. The Public Entity further agrees to indemnify, save, and hold DEED, the Commissioner of MMB, and the State of Minnesota, their agents and employees, harmless from all claims arising out of, resulting from, or in any manner attributable to any violation by the Public Entity, its officers, employees, or agents, or by any Counterparty, its officers, employees, or agents, of any provision of the Minnesota Government Data Practices Act, including legal fees and disbursements paid or incurred to enforce the provisions contained in Section 7.06. The Public Entity's liability hereunder shall not be limited to the extent of insurance carried by or provided by the Public Entity, or subject to any exclusions from coverage in any insurance policy. Under no circumstances, however, shall the Public Entity be required to pay on behalf of itself and the party to be indemnified (e.g. DEED, State of Minnesota, or MMB) any amounts in excess of the limits on liability established in Minnesota Statutes Chapter 466 applicable to any one party. The limits of liability for all parties may not be added together to determine the maximum amount of liability for the Public Entity. The intent of this paragraph is to impose on the Public Entity a limited duty to defend and indemnify to the limits of liability under Minnesota Statutes Chapter 466. The purpose of creating this duty to defend and indemnify is to simplify the defense of claims by eliminating conflicts among the parties and to permit liability claims against the parties from a single occurrence to be defended by a single attorney. 3. By signing this Addendum, Public Entity and DEED acknowledge that the above provisions become part of the Contract. MINNESOTA DEPARTMENT OF EMPLOYMENT AND ECONOMIC DEVELOPMENT Date: By Its CITY OF EDEN PRAIRIE Date: By Its Mayor Date: By Its City Manager P:AhomeA1610.001-EP-Community Development&Planning-General\4-Documents\Addendum-2011 07 06.doc CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar July 19, 2011 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: VIILC. Paul Sticha, Office of the City Award contract for 2011 Building Manager, Facilities Restoration repairs at 16 City owned buildings Requested Action Move to: Award contract for Building Restoration repairs (caulking, tuckpointing, sealants, block&brick repair, concrete, etc.) to Restoration Systems, Inc. Synopsis American Masonry Declined to Bid Western Waterproofing Declined to Bid Advanced Masonry Declined to Bid A.J. Spanjers Co., Inc. $172,850 Restoration Systems, Inc. $94,489 Background Information Specifications were written by Environmental Process Inc (EPI) and a request for bids was distributed. Two bidders attended the pre-bid meeting held by EPI and City of Eden Prairie staff and Advanced Masonry obtained plans and specs from the EPI office. American, Western and Advanced ultimately declined to bid due to their heavy workload. Bid from Restoration Systems is within budget. Upon approval from Council, contract will be forwarded to Restoration Systems for signature and then returned to Mayor/City Manager for signature. Attachments Letter of recommendation and bid tabulation from EPI Environmental Process, Inc. 715 Florida Avenue South, Suite 111,Golden Valley,MN 55426-1700 Phone: 763-398-3040•Fax: 763-398-0121 •email:epimpls@rconnect.com•www.go-epi.com epl July 7, 2011 Mr. Paul Sticha Facilities Manager City of Eden Prairie 8080 Mitchell Road Eden Prairie, Minnesota 55344-4485 Re: City of Eden Prairie 2011 Exterior Building Envelope Maintenance EPI No.: 2011-229 Dear Mr. Sticha: Environmental Process, Inc. (EPI) reviewed the City of Eden Prairie - 2011 Exterior Building Envelope Maintenance project work scope with Mr. Bob Yaritz of Restoration Systems, Inc. and there were no questions. Bob Yaritz indicated that they will be ready to start work as in the tentative schedule or earlier. The work schedule will be discussed at the preconstruction meeting. Restoration Systems, Inc. is based in Chaska, Minnesota. EPI has worked with Restoration Systems, Inc. in the past. Restoration Systems, Inc. successfully completed the City of Eden Prairie—2005 Exterior Building Envelope Maintenance project, the City of Eden Prairie—2008 Exterior Building Envelope Maintenance project, the City of Eden Prairie — 2009 Exterior Building Envelope Maintenance project, and the City of Eden Prairie — 2010 Exterior Building Envelope Maintenance project. Based on the review of project work scope with Restoration Systems, Inc. and the fact that they are the low bidder we recommend awarding the project to them. EPI recommends that the base bid cost of $94,489.00 for the 2011 Exterior Building Envelope Maintenance project be accepted from Restoration Systems, Inc. Please call (763) 398-3040 with any questions, comments. Sincerely, ENVI RONMENTAL PROCESS, INC. e Denny Langer, PE Project Manager Attachment: Recap of Bids CITY OF EDEN PRAIRIE 2011 EXTERIOR BUILDING ENVELOPE MAINTENANCE EPI PROJECT NO: 11-229 RECAP OF BIDS -JULY 7, 2011 Bid Date: Thursday July 7, 2011 Time: 10:00 AM CONTRACTORS A.J.Spanjers Advanced Restoration Company, Masonry Systems,Inc. Inc. Restoration No Bid— BASE BID: $172,850.00 Withdrew from $94,489.00 Appendix A-P bidding on July 6,2011 Addendum No. 1 Received (Yes/No) Yes -- Yes Affidavit Non Collusion Received (Yes/No) Yes -- Yes UNIT COSTS: Tuckpointing(CMU/Brick) (Per linear ft.) $9.00 $7.00 Control Joint/Expansion Joint Replacement(Per linear ft.) $7.00 $10.00 Caulk door/window,head/ jambs/sills (Per linear ft.) $7.00 $8.00 Replacement of Concrete Sidewalk/Patio(Per square ft.) $17.00 $20.00 CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar July 19, 2011 DEPARTMENT/DIVISION: ITEM DESCRIPTION: #10-5782 ITEM NO.: VIILD. Randy Newton Approve Professional Services Public Works /Engineering Agreement with WSB & Associates, Inc. for Construction Phase Services for the Valley View Road/Prairie Center Drive Intersection Improvements Requested Action Move to: Approve Professional Services Agreement with WSB & Associates, Inc for Construction Phase Services for the Valley View Road/Prairie Center Drive Intersection Improvements. Synopsis This Professional Services Agreement will provide construction phase services (staking, inspection, and contract administration) for the Valley View Road / Prairie Center Drive Intersection Improvements. The project is scheduled for construction this summer. The total estimated costs in the agreement are $83,131 which includes $11,636 in additional project design fees and $4,180 in material plant testing if MnDOT is unavailable to complete this work. Background Information The planned improvements to the Valley View Road/Prairie Center Drive intersection provide additional vehicle capacity by providing a right turn lane and a second left-turn lane on the east (Valley View Road) approach to the intersection. The project includes the complete reconstruction of Valley View Road to the east of Prairie Center Drive and a new traffic signal at the Valley View Road/Prairie Center Drive intersection. As part of the improvements the new traffic signal will include Flashing Yellow Arrow left turn signal indications. Construction of the project is currently scheduled to occur in August and September of this year and will take approximately 5 weeks to complete. In order to most efficiently construct the improvements Valley View Road will be closed during construction of the project. The award of the construction contract for this project is a separate item on the City Council agenda. The additional design fees included in this contract are to account for plan changes to both the traffic signal and drainage systems that occurred during design. The additional fees for material plant testing are to account for the potential unavailability of MnDOT to complete this testing due to the state government shutdown. Attachments 0 Professional Services Agreement Rev. 8-07-2009 Standard Agreement for Professional Services This Agreement is made on the 19th day of July 120 11 , between the City of Eden Prairie, Minnesota (hereinafter "City"), whose business address is 8080 Mitchell Road, Eden Prairie, MN 55344, and WSB & Associates, Inc. , a Minnesota Corporation (hereinafter "Consultant") whose business address is 701 Xenia Avenue South, Suite 300, Minneapolis, MN 55416 Preliminary Statement The City has adopted a policy regarding the selection and hiring of consultants to provide a variety of professional services for City projects. That policy requires that persons, firms or corporations providing such services enter into written agreements with the City. The purpose of this Agreement is to set forth the terms and conditions for the provision of professional services by Consultant for Valley View Road and Prairie Center Drive Intersection Improvements Construction Services hereinafter referred to as the "Work". The City and Consultant agree as follows: 1. Scope of Work/Proposal. The Consultant agrees to provide the professional services shown in Exhibit "A" ( Proposal Letter dated July 12, 2011 ) in connection with the Work. The terms of this standard agreement shall take precedence over any provisions of the Consultants proposal and/or general conditions. 2. Term. The term of this Agreement shall be from July 19, 2011 through October 31, 2012 the date of signature by the parties notwithstanding. This Agreement may be extended upon the written mutual consent of the parties for such additional period as they deem appropriate, and upon the terms and conditions as herein stated. 3. Compensation for Services. City agrees to pay the Consultant on an hourly basis plus expenses in a total amount not to exceed $ 83,131.00 for the services as described in Exhibit A. A. Any changes in the scope of the work which may result in an increase to the compensation due the Consultant shall require prior written approval by an authorized representative of the City or by the City Council. The City will not pay additional compensation for services that do not have prior written authorization. B. Special Consultants may be utilized by the Consultant when required by the complex or specialized nature of the Project and when authorized in writing by the City. C. If Consultant is delayed in performance due to any cause beyond its reasonable control, including but not limited to strikes, riots, fires, acts of God, governmental actions, actions of a third party, or actions or inactions of City, the time for performance shall be extended by a period of time lost by reason of the delay. 1 Rev. 8-07-2009 Consultant will be entitled to payment for its reasonable additional charges, if any, due to the delay. 4. City Information. The City agrees to provide the Consultant with the complete information concerning the Scope of the Work and to perform the following services: A. Access to the Area. Depending on the nature of the Work, Consultant may from time to time require access to public and private lands or property. As may be necessary, the City shall obtain access to and make all provisions for the Consultant to enter upon public and private lands or property as required for the Consultant to perform such services necessary to complete the Work. B. Consideration of the Consultant's Work. The City shall give thorough consideration to all reports, sketches, estimates, drawings, and other documents presented by the Consultant, and shall inform the Consultant of all decisions required of City within a reasonable time so as not to delay the work of the Consultant. C. Standards. The City shall furnish the Consultant with a copy of any standard or criteria, including but not limited to, design and construction standards that may be required in the preparation of the Work for the Project. D. Owner's Representative. A person shall be appointed to act as the City's representative with respect to the work to be performed under this Agreement. He or she shall have complete authority to transmit instructions, receive information, interpret, and define the City's policy and decisions with respect to the services provided or materials, equipment, elements and systems pertinent to the work covered by this Agreement. 5. Method of Payment. The Consultant shall submit to the City, on a monthly basis, an itemized invoice for professional services performed under this Agreement. Invoices submitted shall be paid in the same manner as other claims made to the City for: A. Progress Payment. For work reimbursed on an hourly basis, the Consultant shall indicate for each employee, his or her name, job title, the number of hours worked, rate of pay for each employee, a computation of amounts due for each employee, and the total amount due for each project task. Consultant shall verify all statements submitted for payment in compliance with Minnesota Statutes Sections 471.38 and 471.391. For reimbursable expenses, if provided for in Exhibit A, the Consultant shall provide an itemized listing and such documentation as reasonably required by the City. Each invoice shall contain the City's project number and a progress summary showing the original (or amended) amount of the contract, current billing, past payments and unexpended balance of the contract. B. Suspended Work. If any work performed by the Consultant is suspended in whole or in part by the City, the Consultant shall be paid for any services performed prior to receipt of written notice from the City of such suspension, all as shown on Exhibit A. C. Payments for Special Consultants. The Consultant shall be reimbursed for the work of special consultants, as described in Section 313, and for other items when authorized in writing by the City. D. Claims. To receive any payment on this Agreement, the invoice or bill must include the following signed and dated statement: "I declare under penalty of perjury that this account, claim, or demand is just and correct and that no part of it has been paid." 2 Rev. 8-07-2009 6. Project Manager and Staffing. The Consultant has designated Sean Delmore and Mike Shomion to serve on the Project. They shall be assisted by other staff members as necessary to facilitate the completion of the Work in accordance with the terms established herein. Consultant may not remove or replace these designated staff from the Project without the approval of the City. 7. Standard of Care. All Work performed pursuant to this Agreement shall be in accordance with the standard of care in Hennepin County, Minnesota for professional services of the like kind. 8. Audit Disclosure. Any reports, information, data, etc. given to, or prepared or assembled by the Consultant under this Agreement which the City requests to be kept confidential, shall not be made available to any individual or organization without the City's prior written approval. The books, records, documents and accounting procedures and practices of the Consultant or other parties relevant to this Agreement are subject to examination by the City and either the Legislative Auditor or the State Auditor for a period of six (6) years after the effective date of this Contract. The Consultant shall at all times abide by Minn. Stat. 13.01 et seq., the Minnesota Government Data Practices Act, to the extent the Act is applicable to data and documents in the possession of the Consultant. 9. Termination. This Agreement may be terminated by either party by seven (7) days written notice delivered to the other party at the address written above. Upon termination under this provision, if there is no fault of the Consultant, the Consultant shall be paid for services rendered and reimbursable expenses until the effective date of termination. If however, the City terminates the Agreement because the Consultant has failed to perform in accordance with this Agreement, no further payment shall be made to the Consultant, and the City may retain another consultant to undertake or complete the work identified in Paragraph 1. 10. Subcontractor. The Consultant shall not enter into subcontracts for services provided under this Agreement except as noted in the Scope of Work, without the express written consent of the City. The Consultant shall pay any subcontractor involved in the performance of this Agreement within the ten (10) days of the Consultant's receipt of payment by the City for undisputed services provided by the subcontractor. If the Consultant fails within that time to pay the subcontractor any undisputed amount for which the Consultant has received payment by the City, the Consultant shall pay interest to the subcontractor on the unpaid amount at the rate of 1.5 percent per month or any part of a month. The minimum monthly interest penalty payment for an unpaid balance of $100 or more is $10. For an unpaid balance of less than $100, the Consultant shall pay the actual interest penalty due to the subcontractor. A subcontractor who prevails in a civil action to collect interest penalties from the Consultant shall be awarded its costs and disbursements, including attorney's fees, incurred in bringing the action. 11. Independent Consultant. At all times and for all purposes herein, the Consultant is an independent contractor and not an employee of the City. No statement herein shall be construed so as to find the Consultant an employee of the City. 12. Non-Discrimination. During the performance of this Agreement, the Consultant shall not discriminate against any employee or applicants for employment because of race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, disability, sexual orientation or age. The Consultant shall post in places available to employees and applicants for employment, notices setting forth the provision of this non- 3 Rev. 8-07-2009 discrimination clause and stating that all qualified applicants will receive consideration for employment. The Consultant shall incorporate the foregoing requirements of this paragraph in all of its subcontracts for program work, and will require all of its subcontractors for such work to incorporate such requirements in all subcontracts for program work. The Consultant further agrees to comply with all aspects of the Minnesota Human Rights Act, Minnesota Statutes 363.01, et. seq., Title VI of the Civil Rights Act of 1964, and the Americans with Disabilities Act of 1990. 13. Assignment. Neither party shall assign this Agreement, nor any interest arising herein, without the written consent of the other party. 14. Services Not Provided For. No claim for services furnished by the Consultant not specifically provided for herein shall be honored by the City. 15. Severability. The provisions of this Agreement are severable. If any portion hereof is, for any reason, held by a court of competent jurisdiction to be contrary to law, such decision shall not affect the remaining provisions of this Agreement. 16. Entire Agreement. The entire agreement of the parties is contained herein. This Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter hereof as well as any previous agreements presently in effect between the parties relating to the subject matter hereof. Any alterations, amendments, deletions, or waivers of the provisions of this Agreement shall be valid only when expressed in writing and duly signed by the parties, unless otherwise provided herein. 17. Compliance with Laws and Regulations. In providing services hereunder, the Consultant shall abide by statutes, ordinances, rules and regulations pertaining to the provisions of services to be provided. The Consultant and City, together with their respective agents and employees, agree to abide by the provisions of the Minnesota Data Practices Act, Minnesota Statutes Section 13, as amended, and Minnesota Rules promulgated pursuant to Chapter 13. Any violation of statutes, ordinances, rules and regulations pertaining to the services to be provided shall constitute a material breach of this Agreement and entitle the City to immediately terminate this Agreement. 18. Waiver. Any waiver by either party of a breach of any provisions of this Agreement shall not affect, in any respect, the validity of the remainder of this Agreement. 19. Indemnification. Consultant agrees to defend, indemnify and hold the City, its officers, and employees harmless from any liability, claims, damages, costs, judgments, or expenses, including reasonable attorney's fees, to the extent attributable to a negligent or otherwise wrongful act or omission (including without limitation professional errors or omissions) of the Consultant, its agents, employees, or subcontractors in the performance of the services provided by this Agreement and against all losses by reason of the failure of said Consultant fully to perform, in any respect, all obligations under this Agreement. Consultant further agrees to indemnity the City for defense costs incurred in defending any claims, unless the City is determined to be at fault. 20. Insurance. A. General Liability. Prior to starting the Work, Consultant shall procure, maintain and pay for such insurance as will protect against claims for bodily injury or death, or for 4 Rev. 8-07-2009 damage to property, including loss of use, which may arise out of operations by Consultant or by any subcontractor or by anyone employed by any of them or by anyone for whose acts any of them may be liable. Such insurance shall include, but not be limited to, minimum coverages and limits of liability specified in this Paragraph, or required by law. The policy(ies) shall name the City as an additional insured for the services provided under this Agreement and shall provide that the Consultant's coverage shall be primary and noncontributory in the event of a loss. B. Consultant shall procure and maintain the following minimum insurance coverages and limits of liability on this Project: Worker's Compensation Statutory Limits Employer's Liability $500,000 each accident $500,000 disease policy limit $500,000 disease each employee Comprehensive General Liability $1,000,000 property damage and bodily injury per occurrence $2,000,000 general aggregate $2,000,000 Products —Completed Operations Aggregate $100,000 fire legal liability each occurrence $5,000 medical expense Comprehensive Automobile Liability $1,000,000 combined single limit each accident (shall include coverage for all owned, hired and non-owed vehicles. Umbrella or Excess Liability $1,000,000 C. The Comprehensive General/Commercial General Liability policy(ies) shall be equivalent in coverage to ISO form CG 0001, and shall include the following: a. Premises and Operations coverage with no explosions, collapse, or underground damage exclusion (XCU). b. Products and Completed Operations coverage. Consultant agrees to maintain this coverage for a minimum of two (2) years following completion of its work. Said coverage shall apply to bodily injury and property damage arising out of the products-completed operations hazard. C. Personal injury with Employment Exclusion (if any) deleted. d. Broad Form CG0001 0196 Contractual Liability coverage, or its equivalent. e. Broad Form Property Damage coverage, including completed operations, or its equivalent. f. Additional Insured Endorsement(s), naming the "City of Eden Prairie" as an Additional Insured, on ISO form CG 20 10 07 04 or such other endorsement form as is approved by the City. 5 Rev. 8-07-2009 g. If the Work to be performed is on an attached community, there shall be no exclusion for attached or condominium projects. h. "Stop gap" coverage for work in those states where Workers' Compensation insurance is provided through a state fund if Employer's liability coverage is not available. i. Severability of Insureds provision. D. Professional Liability Insurance. The Consultant agrees to provide to the City a certificate evidencing that they have in effect, with an insurance company in good standing and authorized to do business in Minnesota, a professional liability insurance policy. Said policy shall insure payment of damage for legal liability arising out of the performance of professional services for the City. Said policy shall provide an aggregate limit of$2,000,000. Said policy shall not name the City as an insured. Consultant's aggregate liability for claims relating to its professional services will not exceed the professional liability limit required under this Agreement E. Consultant shall maintain in effect all insurance coverages required under this Paragraph at Consultant's sole expense and with insurance companies licensed to do business in the state in Minnesota and having a current A.M. Best rating of no less than A-, unless specifically accepted by City in writing. In addition to the requirements stated above, the following applies to the insurance policies required under this Paragraph: a. All policies, except the Professional Liability Insurance policy, shall be written on an "occurrence" form ("claims made" and "modified occurrence" forms are not acceptable); b. All policies, except the Professional Liability Insurance policy, shall be apply on a "per project" basis; C. All policies, except the Professional Liability Insurance and Worker's Compensation Policies, shall contain a waiver of subrogation naming "the City of Eden Prairie"; d. All policies, except the Professional Liability Insurance and Worker's Compensation Policies, shall name "the City of Eden Prairie" as an additional insured; e. All policies, except the Professional Liability Insurance and Worker's Compensation Policies, shall insure the defense and indemnity obligations assumed by Consultant under this Agreement; and f. All polices shall contain a provision that coverages afforded there under shall not be canceled or non-renewed, nor shall coverage limits be reduced by endorsement, without thirty (30) days prior written notice to the City. A copy of the Consultant's Certificate of Insurance which evidences the compliance with this Paragraph 20, must be filed with City prior to the start of Consultant's Work. Upon request a copy of the Consultant's insurance declaration page, Rider and/or Endorsement, as applicable shall be provided. Such documents evidencing Insurance shall be in a form acceptable to City and shall provide satisfactory evidence that Consultant has complied with all insurance requirements. Renewal certificates shall be provided to City prior to the expiration date of any of the required policies. City will not be obligated, however, to review such Certificate of 6 Rev. 8-07-2009 Insurance, declaration page, Rider, Endorsement or certificates or other evidence of insurance, or to advise Consultant of any deficiencies in such documents and receipt thereof shall not relieve Consultant from, nor be deemed a waiver of, City's right to enforce the terms of Consultant's obligations hereunder. City reserves the right to examine any policy provided for under this paragraph. F. Effect of Consultant's Failure to Provide Insurance. If Consultant fails to provide the specified insurance, then Consultant will defend, indemnify and hold harmless the City, the City's officials, agents and employees from any loss, claim, liability and expense (including reasonable attorney's fees and expenses of litigation) to the extent necessary to afford the same protection as would have been provided by the specified insurance. Except to the extent prohibited by law, this indemnity applies regardless of any strict liability or negligence attributable to the City (including sole negligence) and regardless of the extent to which the underlying occurrence (i.e., the event giving rise to a claim which would have been covered by the specified insurance) is attributable to the negligent or otherwise wrongful act or omission (including breach of contract) of Consultant, its subcontractors, agents, employees or delegates. Consultant agrees that this indemnity shall be construed and applied in favor of indemnification. Consultant also agrees that if applicable law limits or precludes any aspect of this indemnity, then the indemnity will be considered limited only to the extent necessary to comply with that applicable law. The stated indemnity continues until all applicable statutes of limitation have run. If a claim arises within the scope of the stated indemnity, the City may require Consultant to: a. Furnish and pay for a surety bond, satisfactory to the City, guaranteeing performance of the indemnity obligation; or b. Furnish a written acceptance of tender of defense and indemnity from Consultant's insurance company. Consultant will take the action required by the City within fifteen (15) days of receiving notice from the City. 21. Ownership of Documents. All plans, diagrams, analyses, reports and information generated in connection with the performance of the Agreement ("Information") shall become the property of the City, but Consultant may retain copies of such documents as records of the services provided. The City may use the Information for its purposes and the Consultant also may use the Information for its purposes. Use of the Information for the purposes of the project contemplated by this Agreement ("Project") does not relieve any liability on the part of the Consultant, but any use of the Information by the City or the Consultant beyond the scope of the Project is without liability to the other, and the party using the Information agrees to defend and indemnify the other from any claims or liability resulting therefrom. 22. Dispute Resolution/Mediation. Each dispute, claim or controversy arising from or related to this Service Agreement or the relationships which result from this Agreement shall be subject to mediation as a condition precedent to initiating arbitration or legal or equitable actions by either party. Unless the parties agree otherwise, the mediation shall be in accordance with the Commercial Mediation Procedures of the American Arbitration Association then currently in effect. A request for mediation shall be filed in writing with the American Arbitration Association and the other party. No arbitration or legal or equitable action may be instituted for a period of 90 days from the filing of the request for mediation unless a longer period of time is provided by agreement of the parties. Cost of mediation shall be shared equally 7 Rev. 8-07-2009 between the parties. Mediation shall be held in the City of Eden Prairie unless another location is mutually agreed upon by the parties. The parties shall memorialize any agreement resulting from the mediation in a Mediated Settlement Agreement, which Agreement shall be enforceable as a settlement in any court having jurisdiction thereof. 23. Governing Law. This Agreement shall be controlled by the laws of the State of Minnesota. 24. Conflicts. No salaried officer or employee of the City and no member of the Board of the City shall have a financial interest, direct or indirect, in this Contract. The violation of this provision renders the Contract void. Any federal regulations and applicable state statutes shall not be violated. 25. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original. Executed as of the day and year first written above. CITY OF EDEN PRAIRIE Mayor City Manager FIRM NAME By: Its: 8 A WSB 4_y.<� Engineering ■ Planning ■ Environmental ■ Construction 701 Xenia Avenue South Suite 300 Minneapolis,MN 55416 Tel: 763-541-4800 Fax: 763-541-1700 July 12,2011 Mr. Randy Newton,PE,PTOE Assistant City Engineer City of Eden Prairie 8080 Mitchell Road Eden Prairie,MN 55344 Re: Valley View Road and Prairie Center Drive Improvements Project Construction Services Dear Mr. Newton: This letter is to serve as a proposal by WSB &Associates,Inc. (WSB)to provide construction services for the intersection improvements at the Valley View Road and Prairie Center Drive. The work required under this project includes project management and coordination with various agencies, additional design effort,construction inspection services, signal system work, survey, and as built plans. The following assumptions were used in determining the scope of work and estimated cost for the Valley View Road construction services: • The Project management and Contract Administration will include time beginning in July 2011.This will include the preconstruction conference,meetings with impacted utilities, and adjustments to the design if necessary • The actual construction will begin in August 2011 and be substantially completed by September 2011. There will be additional construction in the spring of 2012 for the final lift and permanent markings. For cost estimating purposes,it is assumed construction will take a total of 8 weeks. Task A—Project Management This task will include preparation of monthly invoices,communication with City staff on administrative issues, and general management of the project. This will include periodic meetings with City staff on the project status as necessary. Task B—Additional Design Services This task includes additions to the project during and after final design which were not included in the Design Services Contract. The additional work preformed was in the areas of: 1) Signal component procurement- signal component procurement is not typically done in design but was necessary in order to meet the tight project schedule. 2) Drainage revisions—Additional drainage items were identified and added to the project after the project was completed and in for State Aid Review. 3) Signal plan design/revisions —The inplace signal is currently a Hennepin County design. The plans and specifications for the new signal system was done to Hennepin County standards based on direction of the City and the possibility of reuse of existing infrastructure. Coordination with Mn/DOT personnel led to plan and specification revisions to accommodate their concerns with operations. Task C—Construction Inspection Services WSB will provide the day to day construction inspection and coordination. This will include: Minneapolis■St. Cloud Equal Opportunity Employer K\01847-01\Adniin\ContracdVall,y View Construction Scope 07121 Ldo, Mr. Randy Newton,PE PTOE Valley View Road and Prairie Center Drive July 12,2011 Page 2 1. Completing and submitting all City and MnDOT State aid project documentation required. 2. Insuring that all aspects of the project meet the requirements in the plans and specifications. 3. Collecting Data and redlining plans for as-built drawings. 4. Coordinating the construction activities with the local residents and business.Insuring they are informed on any issues related to their specific property. 5. Keeping the City and the Construction Contract Manager informed on a status of construction on a daily basis. This includes providing a brief weekly construction update for the project webpage. It is assumed that the construction Inspector will be onsite an average of 40 hours per week. This is to account for the escalated schedule and the possibility of working longer hours or weekend work to meet the deadlines. Task D—Contract Administration WSB will provide overall contract administration for the project. This will include: 1. Coordinating all construction activities with the onsite construction observer and contactor on behalf of the City. 2. Preparation, submittal and securing approval for any change orders through the City and MnDOT State Aid. 3. Preparation and submission of monthly pay requests. 4. Addressing any design issues. 5. Conducting weekly onsite construction meetings.Preparing and distributing meeting minutes. 6. Providing the City with a weekly updates on the construction status. 7. Meeting with City Staff,residents or local business as necessary. 8. Coordinating the final project closeout including final pay voucher and insuring that all punch list items and warranty items have been addressed. It is assumed that these services will be completed based on an average of 19 hours per week during the construction with an additional 20 hours prior to the beginning of construction. Task E—Signal System WSB will provide shop drawing review,Mn/DOT, and field coordination as well as inspection of signal system. Task F—Construction Survey WSB will provide surveying services during construction. WSB's survey crew will be available as needed to locate and provide all necessary staking for the contractor. The survey crew will be scheduled through the onsite construction observer.It is assumed that the survey crew would be onsite an average of 8 hours per week. Task G—As Built Plans Following completion of construction WSB will prepare as-built plans based on redlines prepared by the construction observer. The plans will be completed and provided to the City in electronic(ACAD)format. Task H—Expenses As part of this project a portion of incurred expenses will be reimbursed for mileage,printing, and other miscellaneous expenses not to exceed$500. K\01847-01\Adniin\ContracdVall,y View Construction Scope 07121 Ldo, Mr. Randy Newton,PE PTOE Valley View Road and Prairie Center Drive July 12,2011 Page 3 ESTIMATED COST Based on the above Scope or Work we estimate our fee to be$78,951.An additional$4,180 has been estimated for material plant testing if needed. This additional amount is for typical plant inspections that Mn/DOT would complete. In the event of they are unavailable to complete this work,WSB will complete the work at the estimated cost provided. The hours and cost are based on our best estimation of the project at this time. WSB will only charge for actual time spent on the project. A copy of our current fee schedule is attached for your reference. Continizent Work Breakdown For Concrete Plant Inspection 4" Concrete Walk-2 trips Curb-n-gutter and driveway - 3 trips Signal System-3 trips 8 trips @ 5 hours=40 hours @ $76.00=$3,040.00 For Bituminous Plant Inspection I would estimate the following: 2.5"bit walk- 1 trip Non-wear course- 1 trip Wear course- 1 trip 3 trips @ 5 hours= 15 hours @ $76.00= 1,140.00 For a Estimated Total of$4,180.00 K\01847-01\Adniin\ContracdVall,y View Construction Scope 07121 Ldo, b � < WSB Work Plan and Estimate of Cost Valley View Road Improvements City of Eden Prairie,Minnesota � o w Principal Project Engineering Survey Inspector Aide/ Engineer Specialist Crew Clerical Total WORK TASK II Hours Cost y Task a iptio O A PROJECT MANAGEMENT Coordinate with State Aid and Permit Agencies 4 6 4 14 $1,510.00 Conduct Pre-Construction and Weekly Construction Meetings(10 total) 15 15 12 42 $3,849.00 I� Contractor and Public Coordination 4 8 6 18 $2,020.00 p $7,379.00 �' B ADDITIONAL DESIGN SERVICES d Signal Component Procurement During Design 12 16 28 $2,828.00 C• Drainage Revisions 8 24 32 $3,032.00 �p Signal Plan Revisions(operation changes to plan and spec from County style) 16 40 56 $5,376.00 NPDES Permit Fee $400.00 $11,636.00 C CONSTRUCTION INSPECTION SERVICES Pre-condition Investigation-pictures,coordinate Contractors requirements 2 4 6 $586.00 Part Time Construction Inspection(assumes 6 weeks) 4 240 244 $21,124.00 After substantial to cleanup/warranty(assumes 2 weeks) 4 60 64 $5,644.00 $27,354.00 D CONTRACT ADMINISTRATION Coordinate State Agencies-Plant Inspection,Independent Assurance 4 10 14 $1,344.00 Coordinate Utility Relocations 4 4 8 $828.00 Shop Drawing Review and Coordination 8 2 10 $1,140.00 Testing Coordination&Documentation Review-concrete reports,test results,etc. 4 16 20 $1,860.00 Daily Documentation-IRA's,Diaries,Traffic Control, 4 6 10 $1,000.00 Weekly Documentation-Diary,Concrete Reports,Material Certifications 4 20 24 $2,204.00 Monthly Documentation-Labor Field Compliance,Material on Hands,etc. 4 4 8 $828.00 Partial Pay Estimate(4 total) 4 16 8 28 $2,356.00 Punch list and follow-up 12 36 48 $4,548.00 Final Pay Voucher 4 4 2 10 $952.00 Final Documentation: 4 8 36 8 56 $5,096.00 x Change in Construction Status,Time Extensions,Overmn/Undermn Report,Work $22,156.00 Orders,Change Orders,IRA's,Final Voucher,IC-134 forms,etc.. 5 E SIGNAL SYSTEM shop drawing,Mndot and field coordination 4 44 48 $4,268.00 F SURVEY 4 30 34 $4,684.00 n w G AS-BUILTS 2 2 4 8 $974.00 1, EXPENSES(mileage,Printing,etc.) $500.00 C Total aoare 12 145 605 34 34 830 $78,951.00 n o..1y cows 134.00 121.00 86.00 140.00 62.00 SB SALARY COSTS $1 608.00 $17 545.00 $52 030.00 $4 760.00 $2 108.00 S Total WSB&Associates,Inc Cost $78,951.00 Material Plant Testing-WSB(If shutdown affects construction) $4,180.00 Total for WSB&Material Testing $83,131.00 Mr. Randy Newton,PE PTOE Valley View Road and Prairie Center Drive July 12,2011 Page 5 Schedule WSB &Associates,Inc. will complete all work on this project by July 1,2012. Staffing I will serve as project manager and be responsible for overseeing the construction of the Project. Mike Shomion will serve as the project engineer. If you have any questions regarding this proposal,please call me at 763-512-5248. Sincerely, WSB&Associates,Inc. Sean De more,PE,P OE Senior Project Manager K\01847-01\Adniin\ContracdVall,y View Construction Scope 07121 Ldo, CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar July 19, 2011 DEPARTMENT/DIVISION: ITEM DESCRIPTION: #11-5797 ITEM NO.: VIILE. Randy Newton Approve Eden Prairie Road (County Public Works /Engineering Road 4) Flashing Yellow Arrow Conversion Project Requested Action Move to: Approve Eden Prairie Road (County Road 4) Flashing Yellow Arrow Conversion Project Synopsis Hennepin County has agreed to convert the left turn traffic signals on Eden Prairie Road (County Road 4) between Scenic Heights Road and Terrey Pine Drive to Flashing Yellow Arrow left turns. The conversion will allow permissive left turns to occur at the five intersections. In order for the project to move forward the City is responsible for the material costs of the conversion which are estimated at$45,000. Background Information City staff has historically received a number of complaints regarding the restrictiveness of the left turn movements at Hennepin County traffic signals in general and the traffic signals along Eden Prairie Road south of Highway 5 in particular. Early this year city staff approached Hennepin County about the possibility of modifying the traffic signals along Eden Prairie Road to allow permissive left turn movements through the use of Flashing Yellow Arrow left turn signals. Hennepin County agreed to the concept of the conversion however due to funding issues could not commit to a specific time frame in which they could implement the project. In order to move the project forward Hennepin County agreed to complete the work with their maintenance forces this year if the City agreed to the pay for the materials needed to complete the conversion. The total estimated cost for the 5 signals is approximately $45,000. Flashing Yellow Arrow left turn indications provide more flexibility in how left turns are operated and have been shown to be better understood by the driving public than traditional yield on green indications. Both MnDOT and Hennepin County have adopted the Flashing Yellow Arrow as their new standard for left turn signals. With the conversion to Flashing Yellow Arrow Hennepin County has agreed to initially operate the left turn signals in protective/permissive mode. This operation provides left turners with an initial phase in which they are provided the right-of-way (green left turn arrow) followed by a phase in which they are permitted to turn left after yielding to oncoming traffic (flashing yellow left turn arrow). If any issues unexpectedly do arise with this operation the Flashing Yellow Arrow allows the operation of the left turns to be modified to specifically target the identified problem. Finances The anticipated cost of the project to the City is approximately $45,000. The project costs will be paid from the Transportation Fund. Attachments • Flashing Yellow Arrow Brochure A safer, more efficient left-turn A safer, more efficient signal left-turn signal Safer A national study demonstrated that drivers found flashing yellow left-turn arrows more understand- able than traditional yield-on-green indications (individual traffic signal lights). Less delay There are more opportunities to make a left turn with the flashing yellow left-turn arrow than with Minnesota Department of Transportation the traditional three-arrow, red, yellow and green Office of Traffic, Safety and Technology 1500 West County Road B2 indications. Roseville, MN 55113 More flexibility Jerry Kotzenmacher The new traffic signals provide traffic engineers Phone: 651-234-7054 with more options to handle variable traffic E-mail: jerry.kotzenmacher@state.mn.us volumes.. O © 0 © O a 00 What the arrows mean Flashing yellow arrow benefits A flashing yellow arrow signal has the same Solid red arrow: meaning it always has: left turns may proceed Drivers intending to turn left with caution after yielding to oncoming traffic. must stop and wait. They should not enter an intersection to turn when a solid red arrow is being Abetter left- r�11 displayed. In the past, flashing yellow arrows in Minnesota turn signal Solid yellow arrow: were only used when the entire traffic signal was The left-turn signal is about to in flash-mode. Use of the flashing yellow arrow Flashing yellow arrow change to red and drivers has been shown to have several benefits includ- signals have been shown should prepare to stop or ing minimizing delays and enhancing safety by to help drivers make prepare to complete a left turn40% reducingdriver errors. Flashingyellow arrow if they are legally within the y fewer mistakes. They keep intersection and there is no signals have been approved for widespread use motorists safer during conflicting traffic present. by the Federal Highway Administration.. heavy traffic and reduce delays when traffic is light. Where will the flashing yellow Flashing yellow arrow: -J Drivers are allowed to turn left arrow be used? after yielding to all oncoming traffic and to any pedestrians in The majority of newly installed Mn/DOT traffic the crosswalk. Oncoming traffic signals will have the flashing yellow arrow option. has a green light. Drivers must The flashing yellow arrow will operate when r/�1 wait for a safe gap in oncoming certain conditions exist, such as low volume and traffic before turning. low speed traffic. IMM 0: Solid green arrow: Left turns have the right of way. 13 Oncoming traffic has a red light. CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar July 19, 2011 DEPARTMENT/DIVISION: ITEM DESCRIPTION: I.C. 10-5781 ITEM NO.: VIILF. Mary Krause Award Contract to G.F. Jedlicki, Inc. for Public Works /Engineering the Cherokee Trail Utility Relocation Project Requested Action Move to: Award Contract for Cherokee Trail Utility Relocation project to G.F. Jedlicki, Inc. in the amount of$162,190.00. Synopsis Bids were received on Thursday, July 7, 2011 for the Cherokee Trail Utility Relocation project. Four bids were received and are tabulated as follows: G.F. Jedlicki, Inc. $162,190.00 Parrott Contracting, Inc. $183.225.00 G.M. Contracting, Inc. $183,263.38 Northdale Construction Company, Inc. $203,545.52 Background Information This project will relocate existing public watermain and sanitary sewer lines that are currently partially located under an existing garage of a single family home on Cherokee Trail. The low bid of$162,190 is 5% lower than the Engineer's estimated cost for the project. Financial Implications Funding for this project will be through the Utility Enterprise Fund. Attachment 0 Letter of Recommendation of Award from HTPO i 1 I Engineering Surveying ;1 Landscape Architecture 1 � J July 7,2011 Ms. Mary Krause City of Eden Prairie 8080 Mitchell Road Eden Prairie,MN 55344 Re: Construction Bids for Cherokee Trail Utility Relocations, I.C. # 10-5781 Dear Ms. Krause, Bids were received and opened at 10:00 a.m. on Thursday July 7, 2011 for the above referenced project. The bids are shown on the attached Summary of Bids. The Engineer's Estimate for this project was $171,095.00. The low bidder, G.F. Jedlicki, Inc.,came in 5% below the Engineer's Estimate with a bid of $162,190.00. Recommendation is made that the City Council awards I.C. 10-5781 to G.F. Jedlicki, Inc. in the amount of $162,190.00. This recommendation considers that the City Council reserves the right to waive minor irregularities and further reserves the right to award the contract in the best interests of the City. Respectfully, Hansen Thorp Pellinen Olson, Inc. 9 Laurie A. Johnson,P.E. 7510 Market Place Drive Eden Prairie, MN 55344 Enclosures 952-829-0700 952-829-7806 fax www.htpo.com HANSEN THORP PELLINEN OLSON, SUMMARY OF BIDS City of Eden Prairie I.C. # 10-5781 DESCRIPTION: Cherokee Trail Utility Relocations BID OPENED: July 7, 2011 CONSULTING ENGINEER: Hansen Thorp Pellinen Olson, Inc. CHECKED BY: Hansen Thorp Pellinen Olson, Inc. Bidder 5%Bid Bond Total Bid G.F. Jedlicki, Inc. Yes $162,190.00 Parrott Contracting, Inc. Yes $183,225.00 GM Contracting, Inc. Yes $183,263.38 Northdale Construction Co., Inc. Yes $203,545.52 Bid Tabulation 7/7/2011 Cherokee Trail Utility Relocations City of Eden Prairie I.C.#10-5781 Nu thdale Constrnrtinn Co., Evi incer'A Entit"ate G.P.ledlickL Inc. Parrott CmEracting,Inc. CM Cantract- lnc Inc, ITEM ITF2V3 QTY UNYr UNIT TOTAL UNIT TOTAL UNIT TOTAL UNIT TOTAL UNIT TOTAL I Mobilrxmiion 1 Lump Sum 59,1lfmi0 $9,010A0 $7,Z00-00 $7,200.00 52 OM-00 520,040.00 Sn500.001 $6,500.00 $25,300,00 $M,300.00 2 TrallicComroi I Lnnip Sum Szow.no S.2,000,00 $$2,900.00 $2,9W-00 $2,SW.00 $2,800.00 35,006.01} S5'moo $ZM5.00 $2,365.00 3 Cleafing and Grubbigr 1 LM Sum $500,Q0 $500-00 $3,ZD0-00 S1,200,00 $500M0 $5W.DD 51,000.DDI 51,000,p0 $5,000,00 $6,010A0 4 Silt Fmm !Sl1 Lin.Ft $5,00 S750.00 $250 5375,00 $4,00 $600M $3.871 S980.5D $5.45 $M750 5 Curb 1n[15t PrOteCUM 7 Each $250A0 $1.750,001 MOM 58411-00 $290-00 52,03oml) $64.80 $1,083AU $250.00 $1,750.00 6 street Sweeping 6 Plum $i 10.00 WO-001 $100.00 56m,60 Mom $600.00 $M,76 $659.56 $175.00 $1,050.00 7 Pavcman1,Curb C Drivcwa Removal[Includes$awcul) 550 99.Yd. S5.00 $2,750,001 $4,0o S2,200.001 S7M 53,850,110 S3,75 S2,062.50 S10,00 $5,SOOAO 8 Remove Utility Lines 150 Lin.FL $8.00 $1,200.001 $15.00 5$2mm 515-00 $2,250.00 $4.81 S72L50 S15,00 $2,250M 9 Abandon Warcrmain I Lump Sum SI,S00.00 $1,500-00 $2,160.00 SZ160.001 $3,5ta f0 $3,500.00 $950.00 $950,0D $A,5tN1.W $4,51M.00 10 Abandon Sanitamy Sewcr I T-Ump Sum $1,500,00 51,500-D0 $L,95.00 St,975,001 $1,150.00 $1,150.00 SC WAD 5650A0 $2A00,00 $2,WOM 11 WearCooase SPWEA240B tir! Ton S100.00 $6,OM,00 MOO $5,400.00 $10100 S6,000A0 $87,55 $5,253.00 $104,50 $6,270.00 12 NonweerCaursc SPNWB230B 56 Ton $901M 55'"1.00 %0.00 $5,M,DO MOM $5,600.00 $87,55 %,902.80 $99,00 $5.544.00 13 CL 5 AgwppW&Bas¢ 100%crushed quarry rock} 270 Ton $22.00 $5,940-00 524.0(} %Affl,00 $18.00 $4,860.00 $2.5,60 U,9I2.00 $21,98 $5,934.60 14 BtwmiwmTackCaat 20 631 $5Aa $100.00 55.0f1 $100,110 $10,i10 $200.00 $5,15 5103.00 $5,501 S110A0 15 Mountable Curb and Gutter 250 Lin Ft $22.00 $5,500-00 SIR.00 34 500,tip MOO 5R,7S0.i10 %5,75 $6,437,50 $18-15 $4,537.50 16 TemporcitywataSavi" I Lump Sum $1,000M S1,DD0.00 $5,100.00 55,100.00 $1,gwm S1.800.t10 S85D.00 5850,06 %,DOO.00 $6,0M.00 17 6"➢IPCL52Walcmain 8 Lin.FL S40-00 S320-D01 S38,00 $104.00 $100.00 MW.011 $58,67 S469,36 S58-28 M6624 I8 12'D1P CL 52 Wascrmain atermam orrmn 165 Lin-Ft. $50.00 SH=00 569.00 $11,385,00 $90.00 S14,850.00 $M30 $15,414.50 $79,78 $13,163.M 19 thmLionali Drilled) 430 Lin.R. $12[},0D $Si,6[l0-00 582.00 $35,2b0.00 $86.510 $i36,9$0.0A $106,50 $4,rr,795.00 SSG-13 $37,[I35.9t] 20 WAIP Fitting! 750 Lk S5.00 $3.7-90.00 57-00 $5,250.00 $7,00 55,?90.00 56.76 V5070.00 $7.M $5535,00 21 H dmul with 6"Gaw valve ] I Eoch 55,01*.00 SS 000.00 $4,970,00 S4,970.00 WORM 53,8DDA0 S5,763,41 $.5,763,4I $4,832.50 $4,8nS0 M ttertl Valve 2 Fach $3,000.00 %6,000.00 S2,900.011 $5,800.00 S3,2W.OD $6,400.00 WMD.50 %681,00 $2,290A0 $4,5WAO K Co Service 10 Lin.FL 50,00 $400-00 $W00 M.00 $5&OD $550.00 S330'm $3118.60 $46A5 546450necl Water ServicetlncludnCn Sto 1 Exeh S1.000.00 S[,u00,00 $250-00 S250.00 $$75,00 $975A0 $1,522.93 $1,52291 SLD7S25 $1,075.25 rkmSunita Senice(MadesSaddle I Each 51,W0.00 S1,000-00 $2300.00 $2,300.0D S975= 5975,00 $1,452,75 $1,957773 $1,059.13 $1,059-13 SDR 26 Sanil Service 20 Lin.Et- SS0.W $1.000.00 $25.00 5500.0I} "m MOM $36.85 5737.00 $61.61 $1,232,20 C SDR 35 S;mi Scryice 0.18' 20 Lin,R. S50,00 S1,000.0D $40.00 $800,00 S110AD $2,2U0.0a $138.R1 $c2�f,7v7a6,2D 564.84S SDR]35 HOPE 5ani Scwtr 0.14 20 Lin.n- S50.00 $1.0m.00 $37.00 5740,00 $140.00 S2,8o0,00 $142.08 S%M1,60 $81.50 $I.M.00 - R I3,5 HOPE mitary Sewer[F[orizurda3 29 DirectionallyDril[ed} 92 Lin.Ft. $165.00 SISJ90.06 $109,00 $9,936.00 $1400D $12,880,00 S1420 $13,971-36 S13p-50 $120M.00 30 Sam! Manhole 04 3 rm h S3,1OW-00 $9,00000 $6,5130,00 516,500,60 $3,800.00 $II,4(XIW S5,31t?.89 $16 S,67 SCM-90 $14AS6,70 31 Fx1ra➢c th Mmhole 19 Vert.Ft $200-00 DA00.DO W00.00 $5,700,00 $140.00 S2,660,00 5216.04 $4,104.76 $186-W $3,534,OU 32 Insulation Board 300 5 .R. $5.00 S1,500,00 $4,00 $1,20D.00 $2.001 $600,00 S3-21 9M100 $3.53 51,C69A0 33 Pi Bedding-Sand-Gravel Material 65 Tan $Isko S975.06 51200 $780,00 $16.ODI S110,10-00 $12.59 SSI -45 $15-00 $975.0[I 34 Pi Bedding-Binder Swine 65 Ton 51R-00 $090,60 SN-00 SL885,00 $25.00 51,6250V S2281 51,482,65 $moo $1,950.00 35 7 it Borrow LV 1&1 1 Cu.Yd. $Wk-00 S3,200.00 51-00 $160,00 $25,00 $4,000,00 526.68 $4,268.8n $40-00 $6,400.00 36 Sud 14n .Yd- S5.00 S7,000.W $4.00 $5,6%,00 $4.50 56,300A0 $4.75 56,650.Oo $4.35 $6,OWO.0 37 IM tion3 rem it 3 Lot 38 $1,M(Wa $66950 $2001.So $1,1DO-00 $3,300.00 P C0110LI met SWTM Re it 3 Lot $250-00 S7M500 560 7 $250.00 SM-00 $825-00 $2475.00 Total Bid S171R".00 $162,190.00 S383,225.00 5183126&38 $205,545.52 [rl'ra 10-057 7/7/2011 CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar July 19, 2011 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Randy Newton Approve Professional Services Public Works /Engineering Agreement with SRF Consulting Group, Inc. for UnitedHealth Group Development Site Plan Review Requested Action Move to: Approve Professional Services Agreement with SRF Consulting Group, Inc. for UnitedHealth Group Development Site Plan Review. Synopsis In order to assist city staff in the expedited review of UnitedHealth Group's development proposal it is recommended that SRF be retained to assist in the review of the development documents. Given the size and scope of the proposed development this assistance is needed in order to effectively accommodate UnitedHealth Group's development schedule. Financial Implications The Professional Services Agreement with SRF has an estimated budget of approximately $35,000. However, SRF will bill the City for the actual time expended as it is challenging to accurately estimate the actual effort the review will take. UnitedHealth Group through their deposit agreement with the City will be responsible for all costs associated with the review. UnitedHealth Group has been notified of the City's intent to use SRF for this review and the associated costs. Attachments • Professional Services Agreement Rev. 8-07-2009 Standard Agreement for Professional Services This Agreement is made on the 1 day of Sy\Kl 20 < < between the City of Eden Prairie, Minnesota (hereinafter "City"), whose business address is 8080 Mitchell Road, Eden Prairie, MN 55344, and Lroq=- , a Minnesota Ccw-nn ►\ (hereinafter "Consultant")whose business address is Chc, 2V.� A-)& -\ + , Sri\c-\5U 55ky�- Preliminary Statement The City has adopted a policy regarding the selection and hiring of consultants to provide a variety of professional services for City projects. That policy requires that persons, firms or corporations providing such services enter into written agreements with the City. The purpose of this Agreement is to set forth the terms and conditions for the provision of professional services by Consultant for hereinafter referred to as the "Work". The City and Consultant agree as follows: 1. Scope of Work(ProposaL The Consultant agrees to provide the professional services shown in Exhibit "A" (5?- s(3 lc Av- 06A` in connection with the Work. The terms of this standard agreement shall take precedenc over any provisions of the Consultants proposal and/or general conditions. Z1.1\y \812ok� 2. Term. The term of this Agreement shall be from 'Sykl 1!,ZCA k through "4o\k�,30i tat- the date of signature by the parties notwithstanding. This Agreement may be extended upon the written mutual consent of the parties for such additional period as they deem appropriate, and upon the terms and conditions as herein stated. 3. Compensation for Services. City agrees to pay the Consultant on an hourly basis plus expenses in a total amount not to exceed $ �,�CDO for the services as described in Exhibit A. A. Any changes in the scope of the work which may result in an increase to the compensation due the Consultant shall require prior written approval by an authorized representative of the City or by the City Council. The City will not pay additional compensation for services that do not have prior written authorization. B. Special Consultants may be utilized by the Consultant when required by the complex or specialized nature of the Project and when authorized in writing by the City. C. If Consultant is delayed in performance due to any cause beyond its reasonable control, including but not limited to strikes, riots, fires, acts of God, governmental actions, actions of a third party, or actions or inactions of City, the time for performance shall be extended by a period of time lost by reason of the delay. Consultant will be entitled to payment for its reasonable additional charges, if any, due to the delay. 1 Rev. 8-07-2009 4. City Information. The City agrees to provide the Consultant with the complete information concerning the Scope of the Work and to perform the following services: A. Access to the Area. Depending on the nature of the Work, Consultant may from time to time require access to public and private lands or property. As may be necessary, the City shall obtain access to and make all provisions for the Consultant to enter upon public and private lands or property as required for the Consultant to perform such services necessary to complete the Work. B. Consideration of the Consultant's Work. The City shall give thorough consideration to all reports, sketches, estimates, drawings, and other documents presented by the Consultant, and shall inform the Consultant of all decisions required of City within a reasonable time so as not to delay the work of the Consultant. C. Standards. The City shall furnish the Consultant with a copy of any standard or criteria, including but not limited to, design and construction standards that may be required in the preparation of the Work for the Project. D. Owner's Representative. A person shall be appointed to act as the City's representative with respect to the work to be performed under this Agreement. He or she shall have complete authority to transmit instructions, receive information, interpret, and define the City's policy and decisions with respect to the services provided or materials, equipment, elements and systems pertinent to the work covered by this Agreement. 5. Method of Payment. The Consultant shall submit to the City, on a monthly basis, an itemized invoice for professional services performed under this Agreement. Invoices submitted shall be paid in the same manner as other claims made to the City for: A. Progress Payment. For work reimbursed on an hourly basis, the Consultant shall indicate for each employee, his or her name, job title, the number of hours worked, rate of pay for each employee, a computation of amounts due for each employee, and the total amount due for each project task. Consultant shall verify all statements submitted for payment in compliance with Minnesota Statutes Sections 471.38 and 471.391. For reimbursable expenses, if provided for in Exhibit A, the Consultant shall provide an itemized listing and such documentation as reasonably required by the City. Each invoice shall contain-the City's project number and a progress summary showing the original (or amended) amount of the contract, current billing, past payments and unexpended balance of the contract. B. Suspended Work. If any work performed by the Consultant is suspended in whole or in part by the City, the Consultant shall be paid for any services performed prior to receipt of written notice from the City of such suspension, all as shown on Exhibit A. C. Payments for Special Consultants. The Consultant shall be reimbursed for the work of special consultants, as described in Section 3B, and for other items when authorized in writing by the City. D. Claims. To receive any payment on this Agreement, the invoice or bill must include the following signed and dated statement: "I declare under penalty of perjury that this account, claim, or demand is just and correct and that no part of it h\as` been paid." 6. Project Manager and Staffing. The Consultant has designated A(,..1 1 'Rd to serve on the Project. They shall be assisted by other staff members as necessary to facilitate the completion of the Work in accordance with the terms 2 Rev. 8-07-2009 established herein. Consultant may not remove or replace these designated staff from the Project without the approval of the City. 7. Standard of Care. All Work performed pursuant to this Agreement shall be in accordance with the standard of care in Hennepin County, Minnesota for professional services of the like kind. 8. Audit Disclosure. Any reports, information, data, etc. given to, or prepared or assembled by the Consultant under this Agreement which the City requests to be kept confidential, shall not be made available to any individual or organization without the City's prior written approval. The books, records, documents and accounting procedures and practices of the Consultant or other parties relevant to this Agreement are subject to examination by the City and either the Legislative Auditor or the State Auditor for a period of six (6) years after the effective date of this Contract. The Consultant shall at all times abide by Minn. Stat. 13.01 et seq., the Minnesota Government Data Practices Act, to the extent the Act is applicable to data and documents in the possession of the Consultant. 9. Termination. This Agreement may be terminated by either party by seven (7) days written notice delivered to the other party at the address written above. Upon termination under this provision, if there is no fault of the Consultant, the Consultant shall be paid for services rendered and reimbursable expenses until the effective date of termination. If however, the City terminates the Agreement because the Consultant has failed to perform in accordance with this Agreement, no further payment shall be made to the Consultant, and the City may retain another consultant to undertake or complete the work identified in Paragraph 1. 10. Subcontractor. The Consultant shall not enter into subcontracts for services provided under this Agreement except as noted in the Scope of Work, without the express written consent of the City. The Consultant shall pay any subcontractor involved in the performance of this Agreement within the ten (10) days of the Consultant's receipt of payment by the City for undisputed services provided by the subcontractor. If the Consultant fails within that time to pay the subcontractor any undisputed amount for which the Consultant has received payment by the City, the Consultant shall pay interest to the subcontractor on the unpaid amount at the rate of 1.5 percent per month or any part of a month. The minimum monthly interest penalty payment for an unpaid balance of $100 or more is $10. For an unpaid balance of less than $100, the Consultant shall pay the actual interest penalty due to the subcontractor. A subcontractor who prevails in a civil action to collect interest penalties from the Consultant shall be awarded its costs and disbursements, including attorney's fees, incurred in bringing the action. 11. Independent Consultant. At all times and for all purposes herein, the Consultant is an independent contractor and not an employee of the City. No statement herein shall be construed so as to find the Consultant an employee of the City. 12. Non-Discrimination. During the performance of this Agreement, the Consultant shall not discriminate against any employee or applicants for employment because of race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, disability, sexual orientation or age. The Consultant shall post in places available to employees and applicants for employment, notices setting forth the provision of this non- discrimination clause and stating that all qualified applicants will receive consideration for employment. The Consultant shall incorporate the foregoing requirements of this paragraph in all of its subcontracts for program work, and will require all of its subcontractors for such 3 Rev. 8-07-2009 work to incorporate such requirements in all subcontracts for program work. The Consultant further agrees to comply with all aspects of the Minnesota Human Rights Act, Minnesota Statutes 363.01, et. seq., Title VI of the Civil Rights Act of 1964, and the Americans with Disabilities Act of 1990. 13. Assignment. Neither party shall assign this Agreement, nor any interest arising herein, without the written consent of the other party. 14. Services Not Provided For. No claim for services furnished by the Consultant not specifically provided for herein shall be honored by the City. 15. Severability. The provisions of this, Agreement are severable. If any portion hereof is, for any reason, held by a court of competent jurisdiction to be contrary to law, such decision shall not affect the remaining provisions of this Agreement. 16. Entire Agreement. The entire agreement of the parties is contained herein. This Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter hereof as well as any previous agreements presently in effect between the parties relating to the subject matter hereof. Any alterations, amendments, deletions, or waivers of the provisions of this Agreement shall be valid only when expressed in writing and duly signed by the parties, unless otherwise provided herein. 17. Compliance with Laws and Regulations. In providing services hereunder, the Consultant shall abide by statutes, ordinances, rules and regulations pertaining to the provisions of services to be provided. The Consultant and City, together with their respective agents and employees, agree to abide by the provisions of the Minnesota Data Practices Act, Minnesota Statutes Section 13, as amended, and Minnesota Rules promulgated pursuant to Chapter 13. Any violation of statutes, ordinances, rules and regulations pertaining to the services to be provided shall constitute a material breach of this Agreement and entitle the City to immediately terminate this Agreement. 18. Waiver. Any waiver by either party of a breach of any provisions of this Agreement shall not affect, in any respect, the validity of the remainder of this Agreement. 19. Indemnification. Consultant agrees to defend, indemnify and hold the City, its officers, and employees harmless from any liability, claims, damages, costs, judgments, or expenses, including reasonable attorney's fees, to the extent attributable to a negligent or otherwise wrongful act or omission (including without limitation professional errors or omissions) of the Consultant, its agents, employees, or subcontractors in the performance of the services provided by this Agreement and against all losses by reason of the failure of said Consultant fully to perform, in any respect, all obligations under this Agreement. Consultant further agrees to indemnity the City for defense costs incurred in defending any claims, unless the City is determined to be at fault. 20. Insurance. A. General Liability. Prior to starting the Work, Consultant shall procure, maintain and pay for such insurance as will protect against claims for bodily injury or death, or for damage to property, including loss of use, which may arise out of operations by Consultant or by any subcontractor or by anyone employed by any of them or by anyone for whose acts any of them may be liable. Such insurance shall include, but 4 Rev. 8-07-2009 not be limited to, minimum coverages and limits of liability specified in this Paragraph, or required by law. The policy(ies) shall name the City as an additional insured for the services provided under this Agreement and shall provide that the Consultant's coverage shall be primary and noncontributory in the event of a loss. B. Consultant shall procure and maintain the following minimum insurance coverages and limits of liability on this Project: Worker's Compensation Statutory Limits Employer's Liability $500,000 each accident $500,000 disease policy limit $500,000 disease each employee Comprehensive General Liability $1,000,000 property damage and bodily injury per occurrence $2,000,000 general aggregate $2,000,000 Products—Completed Operations Aggregate $100,000 fire legal liability each occurrence $5,000 medical expense Comprehensive Automobile Liability $1,000,000 combined single limit each accident (shall include coverage for all owned, hired and non-owed vehicles. Umbrella or Excess Liability $1,000,000 C. The Comprehensive General/Commercial General Liability policy(ies) shall be equivalent in coverage to ISO form CG 0001, and shall include the following: a. Premises and Operations coverage with no explosions, collapse, or underground damage exclusion (XCU). b. Products and Completed Operations coverage. Consultant agrees to maintain this coverage for a minimum of two (2) years following completion of its work. Said coverage shall apply to bodily injury and property damage arising out of the products-completed operations hazard. C. Personal injury with Employment Exclusion (if any) deleted. d. Broad Form CG0001 0196 Contractual Liability coverage, or its equivalent. e. Broad Form Property Damage coverage, including completed operations, or its equivalent. f. Additional Insured Endorsement(s), naming the "City of Eden Prairie" as an Additional Insured, on ISO form CG 20 10 07 04 or such other endorsement form as is approved by the City. g. If the Work to be performed is on an attached community, there shall be no exclusion for attached or condominium projects. 5 Rev. 8-07-2009 h. "Stop gap" coverage for work in those states where Workers' Compensation insurance is provided through a state fund if Employer's liability coverage is not available. i. Severability of Insureds provision. D. Professional Liability Insurance. The Consultant agrees to provide to the City a certificate evidencing that they have in effect, with an insurance company in good standing and authorized to do business in Minnesota, a professional liability insurance policy. Said policy shall insure payment of damage for legal liability arising out of the performance of professional services for the City. Said policy shall provide an aggregate limit of$2,000,000. Said policy shall not name the City as an insured. Consultant's aggregate liability for claims relating to its professional services will not exceed the professional liability limit required under this Agreement E. Consultant shall maintain in effect all insurance coverages required under this Paragraph at Consultant's sole expense and with insurance companies licensed to do business in the state in Minnesota and having a current A.M. Best rating of no less than A-, unless specifically accepted by City in writing. In addition to the requirements stated above, the following applies to the insurance policies required under this Paragraph: a. All policies, except the Professional Liability Insurance policy, shall be written on an "occurrence" form ("claims made" and "modified occurrence" forms are not acceptable); b. All policies, except the Professional Liability Insurance policy, shall be apply on a "per project" basis; C. All policies, except the Professional Liability Insurance and Worker's Compensation Policies, shall contain a waiver of subrogation naming "the City of Eden Prairie"; d. All policies, except the Professional Liability Insurance and Worker's Compensation Policies, shall name "the City of Eden Prairie" as an additional insured; e. All policies, except the Professional Liability Insurance and Worker's Compensation Policies, shall insure the defense and indemnity obligations assumed by Consultant under this Agreement; and f. All polices shall contain a provision that coverages afforded there under shall not be canceled or non-renewed, nor shall coverage limits be reduced by endorsement, without thirty (30) days prior written notice to the City. A copy of the Consultant's Certificate of Insurance which evidences the compliance with this Paragraph 20, must be filed with City prior to the start of Consultant's Work. Upon request a copy of the Consultant's insurance declaration page, Rider and/or Endorsement, as applicable shall be provided. Such documents evidencing Insurance shall be in a form acceptable to City and shall provide .satisfactory evidence that Consultant has complied with all insurance requirements. Renewal certificates shall be provided to City prior to the expiration date of any of the required policies. City will not be obligated, however, to review such Certificate of Insurance, declaration page, Rider, Endorsement or certificates or other evidence of insurance, or to advise Consultant of any deficiencies in such documents and receipt 6 Rev. 8-07-2009 thereof shall not relieve Consultant from, nor be deemed a waiver of, City's right to enforce the terms of Consultant's obligations hereunder. City reserves the right to examine any policy provided for under this paragraph. F. Effect of Consultant's Failure to Provide Insurance. If Consultant fails to provide the specified insurance, then Consultant will defend, indemnify and hold harmless the City, the City's officials, agents and employees from any loss, claim, liability and expense (including reasonable attorney's fees and expenses of litigation) to the extent necessary to afford the same protection as would have been provided by the specified insurance. Except to the extent prohibited by law, this indemnity applies regardless of any strict liability or negligence attributable to the City (including sole negligence) and regardless of the extent to which the underlying occurrence (i.e., the event giving rise to a claim which would have been covered by the specified insurance) is attributable to the negligent or otherwise wrongful act or omission (including breach of contract) of Consultant, its subcontractors, agents, employees or delegates. Consultant agrees that this indemnity shall be construed and applied in favor of indemnification. Consultant also agrees that if applicable law limits or precludes any aspect of this indemnity, then the indemnity will be considered limited only to the extent necessary to comply with that applicable law. The stated indemnity continues until all applicable statutes of limitation have run. If a claim arises within the scope of the stated indemnity, the City may require Consultant to: a. Furnish and pay for a surety bond, satisfactory to the City, guaranteeing performance of the indemnity obligation; or b. Furnish a written acceptance of tender of defense and indemnity from Consultant's insurance company. Consultant will take the action required by the City within fifteen (15) days of receiving notice from the City. 21. Ownership of Documents. All plans, diagrams, analyses, reports and information generated in connection with the performance of the Agreement ("Information") shall become the property of the City, but Consultant may retain copies of such documents as records of the services provided. The City may use the Information for its purposes and the Consultant also may use the Information for its purposes. Use of the Information for the purposes of the project contemplated by this Agreement ("Project") does not relieve any liability on the part of the Consultant, but any use of the Information by the City or the Consultant beyond the scope of the Project is without liability to the other, and the party using the Information agrees to defend and indemnify the other from any claims or liability resulting therefrom. 22. Dispute Resolution/Mediation. Each dispute, claim or controversy arising from or related to this Service Agreement or the relationships which result from this Agreement shall be subject to mediation as a condition precedent to initiating arbitration or legal or equitable actions by either party. Unless the parties agree otherwise, the mediation shall be in accordance with the Commercial Mediation Procedures of the American Arbitration Association then currently in effect. A request for mediation shall be filed in writing with the American Arbitration Association and the other party. No arbitration or legal or equitable action may be instituted for a period of 90 days from the filing of the request for mediation unless a longer period of time is provided by agreement of the parties. Cost of mediation shall be shared equally between the parties. Mediation shall be held in the City of Eden Prairie unless another location is mutually agreed upon by the parties. The parties shall memorialize any agreement 7 Rev. 8-07-2009 resulting from the mediation in a Mediated Settlement Agreement, which Agreement shall be enforceable as a settlement in any court having jurisdiction thereof. 23. Governing Law. This Agreement shall be controlled by the laws of the State of Minnesota. 24. Conflicts. No salaried officer or employee of the City and no member of the Board of the City shall have a financial interest, direct or indirect, in this Contract. The violation of this provision renders the Contract void. Any federal regulations and applicable state statutes shall not be violated. 25. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original. Executed as of the day and year first written above. CITY OF EDEN PRAIRIE Mayor City Manager FIRM NAME 5,eF Co»5 14frS &Y-uvp• /we. By: y0afhvur X)• fl4�ss�j Its: pre n 8 . E NGINEERS Ll 1 P LAN NERS D E S I G N E R S Consulting Group,Inc. July 18, 2011 Mr. Randy Newton, PE, PTOE Assistant City Engineer CITY OF EDEN PRAIRIE 8080 Mitchell Road Eden Prairie, MN 55344 SUBJECT: PROPOSAL FOR PROFESSIONAL SERVICES FOR UNITED HEALTH GROUP DEVELOPMENT SITE PLAN REVIEW Dear Mr.Newton: Based on your request, we are pleased to submit this proposal to assist the City of Eden Prairie with the review of the United Health Group (UHG) site plan development submittal. We understand that the City has received a formal submittal from UHG for development of the property located east of Shady Oak Road and south of TH 62. In order to meet the proposed schedule, the development review process needs to start immediately. SCOPE OF SERVICES The scope of our services, as we discussed, will supplement the City staff review efforts as requested. SRF is prepared to provide a detailed review of all site design elements including, but not limited to,the following: 1. Civil site engineering including site grading, surface elevations, surface drainage, and utilities. 2. Water resources including storm water ponding, rate control and water quality treatment, wetland impacts and mitigation. 3. Traffic impacts including a cursory review of a previously prepared traffic study. 4. Compatibility with the future City West SWLRT station design. SCHEDULE / BUDGET We are prepared to start immediately will complete our work within a mutually agreed-upon time schedule. It is difficult to estimate how long our development review tasks will take as well as the budget necessary for our professional services. www.srfconsulting.com One Carlson Parkway North,Suite 150 1 Minneapolis,MN 55447-4443 1 763.475.0010 Fax:763.475.2429 An Equal Opportunity Employer Mr. Randy Newton,PE, PTOE -2 - July 18, 2011 City of Eden Prairie MP4 000 Based on SRF's experience reviewing development site plans, we estimate a budget of approximately $25;800. However, depending on the complexity of the site design and the extent of our involvement (i.e., coordination meetings with the City Council, Planning Commission, UHG design team, other regulatory agencies, etc.),this budget may need to be increased. We propose to be reimbursed for our services on an hourly basis for the actual time expended. Other direct project expenses, such as printing, supplies, reproduction, etc., will be billed at cost, and mileage will be billed at the current allowable IRS rate for business miles. Invoices are submitted on a monthly basis for work performed during the previous month. Payment is due within 30 days. It is understood that if the extent of our work exceeds the budget, the project cost will be adjusted accordingly upon your approval. STANDARD TERMS AND CONDITIONS The attached Standard Terms and Conditions (Attachment A), together with this proposal for professional services, constitute the entire agreement between the Client and SRF Consulting Group, Inc. and supersede all prior written or oral understandings. This agreement may only be amended, supplemented, modified or canceled by a duly executed written instrument. NOTICE TO PROCEED A signed copy of this proposal or a separate letter of authorization, either mailed or emailed to our office, will serve as our notice to proceed. We sincerely appreciate your consideration of this proposal and look forward to working with you on this project. Please feel free to contact us if you have any questions or need additional information. Sincerely, APP OVED: SRF Consulting Group, I c. —7 (Signature) ` Name Matthew D. Hansen, PE(MN ID), LS (MN IA) Principal Title MDH/bls Date Attachment This cost proposal is valid for a period of 90 days. SRF reserves the right to adjust its cost estimate after 90 days from the date of this proposal SRF No. P11501 SWarketin&roposa&2011 Letter ProposalskPll501 EdenPrairie_UnitedHealthPlanReview_071811 MH.docx CITY COUNCIL AGENDA DATE: SECTION: Public Hearing July 19, 2011 DEPARTMENT/DIVISION: ITEM DESCRIPTION: Vacation 11-01 ITEM NO.: IX.A. Denise Christensen Vacation of an Easement for road purposes in the Southeast Quarter of Public Works /Engineering Section 21, Township 116, Range 22, Hennepin County Requested Action Move to: • Close the public hearing; and • Adopt the resolution vacating an easement for road purposes in the Southeast Quarter of Section 21, Township 116, Range 22, Hennepin County, Minnesota. Synopsis The Property Owner has requested the vacation of an easement for road purposes in the Southeast Quarter of Section 21, Township 116, Range 22 to facilitate the building of a garage addition. The Property Owner has consented to grant the City a new easement for watermain purposes over their property to replace the easement proposed to be vacated. City Staff have reviewed this request and determined that there are no existing or future needs for this easement after receiving the new watermain easement and it can be vacated. Attachments • Resolution • Location Map • Site Plan • Published Notice • Notification List CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2011- VACATION OF AN EASEMENT FOR ROAD PURPOSES IN THE SOUTHEAST QUARTER OF SECTION 21, TOWNSHIP 116, RANGE 22, HENNEPIN COUNTY VACATION 11-01 WHEREAS, the City of Eden Prairie has (a) certain easements for road purposes described as follows: An easement for road purposes, described in Document Number 3375275, Book 2365, Page 513 dated September 10, 1962 and recorded on September 24, 1962 in the Office of the County Recorder, Hennepin County, Minnesota, over, across and upon the following described premises: A tract of land in the Southeast Quarter of Section 21, Township 116, Range 22, Hennepin County, Minnesota, described as follows: Commencing at the Northeast corner of the Northwest Quarter of the Southeast Quarter and running thence West along the North line thereof a distance of 382.65 feet; thence South one (1) degree 10 minutes 25 seconds East a distance of 268.5 feet to the North boundary of a township road; thence North 88 degrees 49 minutes 35 seconds East along said North boundary a distance of 68.75 feet; thence on a curve to the right having a central angle of 93 degrees 33 minutes and a radius of 70.89 feet a distance of 62.7 feet; thence North 40 degrees 05 minutes 35 seconds East to point of beginning. Also a tract of land in the Southeast Quarter of Section 21, Township 116, Range 22, Hennepin County, Minnesota, described as follows: Commencing at the Northeast corner of the Northwest Quarter of the Southeast Quarter and running thence South along the East line thereof a distance of 320.9 feet; thence South 63 degrees 06 minutes 35 seconds West a distance of 224.8 feet to the East boundary of a township road; thence North 2 degrees 22 minutes 35 seconds East along said East boundary a distance of 31.9 feet; thence on a curve to the left having a central angle of 93 degrees 33 minutes and radius of 79.89 feet, a distance of 116.42 feet; thence North 40 degrees 05 minutes 35 seconds East to the point of beginning, lying 33 feet on either side of a line described as follows: Beginning at a point on the East line of Section 16, Township 116, Range 22, 193.07 feet North of the Southeast corner thereof, thence Southwesterly along the arc of a 4 degree 00 minute curve having a central angle of 30 degrees 39 minutes said central angle being measured from the section line West, for a distance of 766.25 feet, thence Southwesterly along the tangent to the said 4 degree curve for a distance of 2099.55 feet, thence to the left along the arc of a 3 degree 00 minute curve having a central angle of 28 degrees 51 minutes 25 seconds for a distance of 961.67 feet, thence Southerly along the tangent to the said 3 degree curve for a distance of 631.08 feet, thence to the right along the arc of a 6 degree 00 minute curve having a central angle of 30 degrees 30 minutes for a distance of 508.33 feet, thence Southwesterly along the tangent to said 6 degree curve for a distance of 485.97 feet and there terminating, said point of termination being the intersection of the center lines of Hennepin County Road No. 1 and Starring Lane in Starring Lake First Addition. WHEREAS, a Public Hearing was held on July 19, 2011, after due notice was given to affected property owners and published in accordance with M.S.A. 412.851; and WHEREAS, the Council has been advised by City Staff that the proposed vacation of the above described easement for road purposes has no relationship to the comprehensive municipal plan; and WHEREAS, it has been determined that the said easement for road purposes is not necessary and has no interest to the public, therefore, should be vacated. NOW, THEREFORE, BE IT RESOLVED by the Eden Prairie City Council as follows: 1. Said easement for road purposed as described above is hereby vacated. 2. The City Clerk shall prepare a Notice of Completion of Proceedings in accordance with M.S.A. 412.851. 3. This Resolution is contingent upon and shall not be effective until the new drainage and utility easement to the City and any other easement interests, if applicable,have been recorded with the Office of the County Recorder. The City Clerk shall not present the Notice of Completion of Proceedings to the County Auditor or file it with the Office of the County Recorder until the new drainage and utility easement to the City and any other easement interest, if applicable, have been recorded. ADOPTED by the Eden Prairie City Council on July 19, 2011. Nancy Tyra-Lukens, Mayor ATTEST: SEAL Kathleen Porta, City Clerk o G�• �. WOODS L) �Q v LA. CARMODY DR. �O O DR. a J S y\ESTRID� = N a v GT O N z �qO RD. �o y R• g gF Ao��tiS PO/Al;,, 3 E L . o�� W O y �• ake �30 �, �� �� N ��• o o �o � CCOy r RiyF �� RO• Lake �R CIR. r�0pp pR GDON 20. S W00� MeC o Asti BLgICA- 21. C\R• W C-\, EKE FBL��C TER 2 � v CIR. �� C MDO��y RD. 22. MITCHELL � QO�� N a LA. s 110. 0 cv' 5. CIR. i 2 6. 4, z 7. N ��� y N Staring E. Lake p�OHF ��• �� SITE TRAIL O VAC 11 -01 NORTH LOCATION MAP I __-------------------------------------------- - .�rr � I ----------------- -- I, A.�,y fa dpaptrq W,=a+OPPMima H.mbvlPAi3.aeekxiLl�3l] _ _—__-- 1. 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R-�j + fI I y1r I If LEGAL DESCWTM Q V PPAROF NW114 OF SV14 SEC 71.i,it&R27 !I ❑ jADDRESS-9020 STATI M Pw21-15a-•z2-A2-Om p SxYEr IS ABJECT 7G a,AMr PER + V TITLE DR EASDAW&FM"TCW VERFY ALL SETBASIG WRN CITY f lL L • I R a S I I e+r I I , VACATION 11-01 NOTICE OF VACATION OF AN EASEMENT FOR ROAD PURPOSES IN THE SOUTHEAST QUARTER OF SECTION 21, TOWNSHIP 116, RANGE 22, HENNEPIN COUNTY Notice is hereby given that a public hearing will be held before the Eden Prairie City Council at the Eden Prairie City Hall, 8080 Mitchell Road, Eden Prairie, Minnesota, on July 19, 2011 at 7:00 p.m. to hear all persons present upon the proposed vacation of an easement for road purposes described as follows: An easement for road purposes, described in Document Number 3375275, Book 2365, Page 513 dated September 10, 1962 and recorded on September 24, 1962 in the Office of the County Recorder, Hennepin County, Minnesota, over, across and upon the following described premises: A tract of land in the Southeast Quarter of Section 21, Township 116, Range 22, Hennepin County, Minnesota, described as follows: Commencing at the Northeast corner of the Northwest Quarter of the Southeast Quarter and running thence West along the North line thereof a distance of 382.65 feet; thence South one (1) degree 10 minutes 25 seconds East a distance of 268.5 feet to the North boundary of a township road; thence North 88 degrees 49 minutes 35 seconds East along said North boundary a distance of 68.75 feet; thence on a curve to the right having a central angle of 93 degrees 33 minutes and a radius of 70.89 feet a distance of 62.7 feet; thence North 40 degrees 05 minutes 35 seconds East to point of beginning. Also a tract of land in the Southeast Quarter of Section 21, Township 116, Range 22, Hennepin County, Minnesota, described as follows: Commencing at the Northeast corner of the Northwest Quarter of the Southeast Quarter and running thence South along the East line thereof a distance of 320.9 feet; thence South 63 degrees 06 minutes 35 seconds West a distance of 224.8 feet to the East boundary of a township road; thence North 2 degrees 22 minutes 35 seconds East along said East boundary a distance of 31.9 feet; thence on a curve to the left having a central angle of 93 degrees 33 minutes and radius of 79.89 feet, a distance of 116.42 feet; thence North 40 degrees 05 minutes 35 seconds East to the point of beginning, lying 33 feet on either side of a line described as follows: Beginning at a point on the East line of Section 16, Township 116, Range 22, 193.07 feet North of the Southeast corner thereof, thence Southwesterly along the arc of a 4 degree 00 minute curve having a central angle of 30 degrees 39 minutes said central angle being measured from the section line West, for a distance of 766.25 feet, thence Southwesterly along the tangent to the said 4 degree curve for a distance of 2099.55 feet, thence to the left along the arc of a 3 degree 00 minute curve having a central angle of 28 degrees 51 minutes 25 seconds for a distance of 961.67 feet, thence Southerly along the tangent to the said 3 degree curve for a distance of 631.08 feet, thence to the right along the arc of a 6 degree 00 minute curve having a central angle of 30 degrees 30 minutes for a distance of 508.33 feet, thence Southwesterly along the tangent to said 6 degree curve for a distance of 485.97 feet and there terminating, said point of termination being the intersection of the center lines of Hennepin County Road No. 1 and Starring Lane in Starring Lake First Addition. By Order of the City Council Published in the Eden Prairie News on June 30, 2011 NOTIFICATION LIST VACATION REQUEST 11-01 A copy of the Public Hearing Notice has been sent to owners of the following parcels: 21-116-22-42-0006 A copy of the Public Hearing Notice has been sent to the following Utilities: CenterPoint Energy Comcast Qwest Communications Xcel Energy CITY COUNCIL AGENDA DATE: July 19, 2011 SECTION: Public Hearings DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: IX.B. Community Development/Planning Grand Haven at Marsh Cove Janet Jeremiah/Scott A. Kipp Requested Action Move to: • Close the Public Hearing; and • Adopt the Resolution for Guide Plan Change from Church to Low Density Residential on 6.41 acres, and from Church to Park/Open Space 5.21 acres; and • Adopt the Resolution for Planned Unit Development Concept Review on 11.62 acres; and • Approve 1st Reading of the Ordinance for Planned Unit Development District Review with waivers on 11.62 acres, and Zoning District Change from Public to R1-13.5 on 6.41 acres; and • Adopt the Resolution for Preliminary Plat on 11.62 acres into 16 lots, 1 outlot, and right-of- way; and • Direct Staff to prepare a Development Agreement incorporating Staff and Commission recommendations and Council conditions. Synopsis This is a 16 lot single-family residential project. The project requires a Guide Plan change from Church to Low Density Residential on 6.41 acres, and from Church to Park/Open Space on 5.21 acres. The project requires 40 Planned Unit Development waivers from the City code related to lot size, lot width, street frontage, setbacks, and cul-de-sac length. Background Information A change in land use to Low Density Residential, and Parks/Open space would be consistent with the low density and parks land use pattern in the area. Leaving the site guided as Church would also be compatible. As a church, the site does have capacity for a larger building of 82,000 sq. ft., a 600 seat sanctuary, and 200 parking spaces. The proposed PUD waivers are as follows: • Lot Size - Eight lots are less than 13,500 sq. ft. • Lot Width—Four lots are less than 85 ft. City Council Agenda Grand Haven at Marsh Cove July 19, 2011 Page 2 • Lot Frontage—Ten lots have frontage on the street less than 85 ft., 55 ft. on the radius of the cul-de- sac. • Front Yard Setback—Three lots have less than a 30 ft. front setback • Side Yard Setbacks — Fourteen lots have less than 10 ft side yardHtotal 25 ft. both combined. • Cul-de-sac Length—Exceeds 500 ft The smaller street frontages combined with houses setbacks greater than the 30 foot minimum reduces the back yard space. Proposed homes along the east side are at a 39 foot minimum setback and a 57 foot average setback. In the subdivision to the east, existing homes are at a 15 foot minimum setback and an 85 foot average setback. Proposed homes along the west side are at a 44 foot minimum setback and a 50 foot average setback. In the subdivision to the west, existing homes are at a 48 foot minimum setback and a 70 foot average setback. The 120-Day Review Period Expires on September 2, 2011. Planning Staff Recommendation The June 10, 2011 staff report to the Planning Commission recommended that the project be continued with direction to revise the plan to conform to City code requirements. Planning Commission Recommendation The Planning Commission voted 6-0 to recommend approval of the project as submitted with the change in the guide plan and the 40 waivers from the City code related to lot size, lot width, street frontage, setbacks, and cul-de-sac length. Attachments 1. Resolution for Guide Plan Amendment 2. Resolution for PUD Concept 3. Resolution for Preliminary Plat 4. Staff Report dated June 10, 2011 5. Location Map 6. Land Use Map 7. Zoning Map 8. Aerial photo 9. Approved Planning Commission Minutes dated June 13, 2011 GRAND HAVEN AT MARSH COVE CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2011- A RESOLUTION AMENDING THE COMPREHENSIVE MUNICIPAL PLAN WHEREAS, the City of Eden Prairie has prepared and adopted the Comprehensive Municipal Plan ("Plan"); and WHEREAS, the Plan has been submitted to the Metropolitan Council for review and comment; and WHEREAS, the proposal of Grand Haven at Marsh Cove, by Marsh Cove, LLC is for a 16 lot single family residential development; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Eden Prairie, Minnesota, hereby adopts the amendment of the Plan subject to Metropolitan Council approval as follows: Guide Plan Change from Church to Low Density Residential on 6.41 acres and from Church to Park/Open Space on 5.21 acres. ADOPTED by the City Council of the City of Eden Prairie this 19th day of July, 2011. Nancy Tyra-Lukens, Mayor ATTEST: Kathleen A. Porta, City Clerk GRAND HAVEN AT MARSH COVE CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2011- A RESOLUTION APPROVING THE PLANNED UNIT DEVELOPMENT CONCEPT OF GRAND HAVEN AT MARSH COVE FOR MARSH COVE LLC. 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 June 13, 2011 on Grand Haven at Marsh Cove by Marsh Cove, LLC., 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 July 19, 2011. NOW, THEREFORE, BE IT RESOLVED by the City Council of Eden Prairie, Minnesota, as follows: 1. Grand Haven at Marsh Cove, 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 July 12, 2011. 3. That the PUD Concept meets the recommendations of the Planning Commission on June 13, 2011. ADOPTED by the City Council of the City of Eden Prairie this 19"'day of July, 2011. Nancy Tyra-Lukens, Mayor ATTEST: Kathleen A. Porta, City Clerk EXHIBIT A PUD CONCEPT - Grand Haven at Marsh Cove Legal Description: Lot 17, Block 1, THE FARM 2ND SECOND ADDITION, Hennepin County, Minnesota GRAND HAVEN AT MARSH COVE CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2011- RESOLUTION APPROVING THE PRELIMINARY PLAT OF GRAND HAVEN AT MARSH COVE FOR MARSH COVE, LLC. BE IT RESOLVED, by the Eden Prairie City Council as follows: That the preliminary plat of Grand Haven at Marsh Cove for Marsh Cove, LLC., stamp dated July 12, 2011, and consisting of 11.62 acres into 16 lots and one outlot, a copy of which is on file at the City Hall, is found to be in conformance with the provisions of the Eden Prairie Zoning and Platting ordinances, and amendments thereto, and is herein approved. ADOPTED by the Eden Prairie City Council on the 19"'day of July, 2011. Nancy Tyra-Lukens , Mayor ATTEST: Kathleen A. Porta, City Clerk STAFF REPORT TO: Planning Commission FROM: Scott A. Kipp, Senior Planner THROUGH: Michael D. Franzen, City Planner DATE: June 10, 2011 SUBJECT: Grand Haven at Marsh Cove APPLICANT: Marsh Cove, LLC OWNER: King of Glory Lutheran Church LOCATION: 17850 Duck Lake Trail 120 DAY REVIEW: September 2, 2011 REQUEST: 1. Guide Plan Change from Church to Low Density Residential on 6.41 acres, and from Church to Park/Open Space on 5.21 2. Planned Unit Development Concept Review on 11.62 acres 3. Planned Unit Development District Review with waivers on 11.62 acres 4. Zoning District Change from Public to R1-13.5 on 6.41 acres 5. Preliminary Plat of 11.62 acres into 16 lots and 1 outlot Staff Report—Grand Haven at Marsh Cove June 10, 2011 Page 2 BACKGROUND The site is owned by the King of Glory Lutheran Church. The Comprehensive Guide Plan shows the 11.62 acre site as a Church land use. Surrounding land uses are Park/Open Space to the north and Low Density Residential to the east, west and south. The site is zoned Public. Surrounding zoning is Public to the north, R1-13.5 single family to the east and west, and R1-22 single family to the south. GUIDE PLAN CHANGE The applicant is requesting a Guide Plan change from Church to Low Density Residential on 6.41 acres, and from Church to Park/Open Space on 5.21 acres. A change in land use to Low Density Residential, and Parks/Open space would be consistent with the land use patterns in the area. Leaving the site guided as Church would also be compatible. As a church, the site does have capacity for a larger building of 82,000 sq. ft., a 600 seat sanctuary, and 200 parking spaces. PRELIMINARY PLAT This preliminary plat shows 16 single-family lots, and one outlot for the pond and wetlands. Outlot A will be dedicated to the City. PURPOSE OF A PLANNED UNIT DEVELOPMENT AND WAIVERS The purpose of a Planned Unit Development is to: (1) Encourage a more creative and efficient approach to the use of land in the City; (2) Allow variety in the types of environment available to the people of the City; (3) Encourage more efficient allocation and maintenance of privately controlled common open space through the distribution of overall density of population and intensity of land use where such arrangement is desirable and feasible; and, (4) Provide the means for greater creativity and flexibility in environmental design than is provided under the strict application of the provisions of this Chapter and Chapter 12 (relating to subdivisions) of this Code while at the same time preserving the health, safety, order, convenience, prosperity, and general welfare of the City and its inhabitants. Historically,planned unit development waivers have been used to result in a plan that benefits the City. In the 70's the City used PUD waivers as a means to protect environmental features such as wetlands, lakes, creeks, steep slopes, flood plain, and trees. In the 80's and 90's the City adopted a Shoreland Ordinance, Steep Slope Ordinance, Floodplain Ordinance, Tree Ordinance and Wetland Ordinance to protect these features. Staff Report—Grand Haven at Marsh Cove June 10, 2011 Page 3 In the 90's and 2000's the City used PUD waivers to create senior affordable housing, eliminate incompatible land uses, create affordable housing, and to develop the Town Center. PLANNED UNIT DEVELOPMENT WAIVERS The project requires 40 Planned Unit Development(PUD) waivers from the City code related to lot size, lot width, street frontage, setbacks, and cul-de-sac length. The proposed PUD waivers are as follows: • Lot Size - Eight lots are less than 13,500 sq. ft. • Lot Width—Four lots are less than 85 ft. • Lot Frontage—Ten lots have frontage on the street less than 85 ft., 55 ft. on the radius of the cul-de- sac. • Front Yard Setback—Three lots have less than a 30 ft. front setback • Side Yard Setbacks — Fourteen lots have less than 10 ft side yardHtotal 25 ft. both combined. • Cul-de-sac Length—Exceeds 500 ft The applicant is asking for waivers is to create a different street appearance and to create views of the wetlands. The smaller street frontages combined with houses setbacks greater than the 30 foot minimum reduces the back yard space. Proposed homes along the east side are at a 39 foot minimum setback and a 57 foot average setback. In the subdivision to the east, existing homes are at a 15 foot minimum setback and a 85 foot average setback. Proposed homes along the west side are at a 44 foot minimum setback and a 50 foot average setback. In the subdivision to the west, existing homes are at a 48 foot minimum setback and a 70 foot average setback. The waivers do not result in a plan that provides a benefit to the City and creates a visual impact on existing homes to the east and west. GRADING AND TREE LOSS The tree inventory shows a total of 750 diameter inches of significant trees on the property. A total of 242 diameter inches, or 32% will be lost due to grading for road,house pads, and drainage. Tree replacement is 104 caliper inches, or 35, three caliper inch trees. The tree replacement plan meets this requirement. Staff Report—Grand Haven at Marsh Cove June 10, 2011 Page 4 DRAINAGE AND UTILITIES Drainage will be directed to the infiltration pond on the north end of the site through drainage swales and storm sewer. City sewer and water is available to the property. EDENBROOK CONSERVATION AREA There is a 200+ acre city owned conservation area that abuts the proposed Grand Haven development. The area is named the Edenbrook Conservation Area(ECA) and recently several soft surface trails and boardwalk sections have been constructed to enable residents to enjoy this unique nature area. The trailiboardwalk system was constructed after a lengthy planning process, which involved 15 residents living in close proximity to the ECA. Two additional conservation areas (Riley Creek Woods and Lower Purgatory Creek) were also studied for trail development at the same time. A master plan for these three conservation areas was presented to the City Council in the fall of 2005. Each of the three areas had specific recommendations regarding trail development in phases. During the public meetings it was mentioned that most of the residents who live on the south side of the conservation area entered through the King of Glory Church property. As a result a recommendation was made to seek a public access point through the church property if or when there was an opportunity to develop a public access to connect to the trail network. This single family development provides that access opportunity. The developer has provided an outlot for a trail connection on the north end of the cul-de-sac. The developer is required to blacktop pave an eight foot wide trail from the road access location to a point where the lawn areas on either side become natural or to a point mutually agreed upon by city staff and the developer. The City will install a sign indicating that the trail is for foot traffic only—no bicycles or motorized vehicles permitted. The city will not remove snow from the trail during the winter months. STAFF RECOMMENDATION ALTERNATIVE ONE Recommend approval of the following request: 1. Guide Plan Change from Church to Low Density Residential on 6.41 acres, and from Church to Park/Open Space on 5.21 2. Planned Unit Development Concept Review on 11.62 acres 3. Planned Unit Development District Review with waivers on 11.62 acres 4. Zoning District Change from Public to R1-13.5 on 6.41 acres 5. Preliminary Plat of 11.62 acres into 16 lots and 1 outlot This is based on plans stamp dated June 9, 2011 the Staff Report dated June 10, 2011 and the following conditions: Staff Report-Grand Haven at Marsh Cove June 10, 2011 Page 5 1. Prior to release of the final plat, 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. Pay all City sewer and water assessment and connection fees. C. Dedicate Outlot A to the City. 2. Prior to grading permit issuance, the proponent shall: A. Notify the City and Watershed District 48 hours in advance of grading. B. Install erosion control on the property, as well as tree protection fencing at the grading limits in the wooded areas for trees to be preserved as part of the development. Said fencing shall be field inspected by the City Forester prior to any grading. 3. Prior to building permit issuance for the property, the proponent shall: A. Submit a tree replacement bond/letter of credit for review and approval. B. Pay the appropriate cash park fee. 4. The following waivers are granted through the PUD for the project as indicated in the approved plans: Lot Size-Less than 13,500 sq. ft. for Lots 3, 4, 5, 6, Block 1; Lots 3, 4, 5, 6, Block 2. Lot Width-Less than 85 feet, 90 for corner lots for Lots 2, 3, 4, 5, Block 2. Lot Frontage-Less than 85 feet, 55 feet on the cul-de-sac radius, for Lots 1, 2, 3, 4, 6, 8, Block 1; Lots 1, 6, 7, 8, Block 2. Front Setback-Less than 30 feet for Lots 1, 7, Block 1; Lot 1, Block 2. Side Setback - Less than 10 ft one side/total 25 ft. both combined for Lots 2, 3, 4, 5, 6, 7, 8, Block 1; Lots 2, 3, 4, 5, 6, 7, 8, Block 2. Cul-de-sac Length-Exceeds 500 ft ALTERNATIVE TWO Recommend a continuance to the July 11, 2011 meeting with direction to revise the plan to conform to City code requirements. Staff recommends Alternative Two. Area Location Map - Grand Haven at Marsh Cove Address: 17850 Duck Lake Trail T T LU Boyd Avenue SITE Lorena Lane Duck Lake Trail 0 Fe Guide Plan Map Grand Haven at Marsh Cove 17850 Duck Lake Trail, Eden Prairie, MN SITE Boyd Avenue Lorena Lane Duck Lake Trail f d n P ie d e Gui e -2 2 Rural Residential 0.10 Units/Acre Neighborhood Commercial N Low Density Residential 0-2.5 Units/Acre -Community Commercial Streams ®Low Density/Public/Open Space Regional Commercial —Principal Arterial Medium Density residential 2.5-10 Units/Acre ®Town Center —A Minor Arterial —B Minor Arterial DATE Approved 03-19-03 DATE Revised 12-06-06 O Medium Density Residential/Office Park/Open Space DATE Revised 01-07-05 DATE Revised 03-01-07 07-05 DATE Revised 06-01-07 - High Density Residential 10 40 Units/Acre — Major Collector DATE Revised 11 Public/Quasi-Public DATE Revised 02-23-06 DATE Revised 10-01-07 T Minor Collector DATE Revised 03-23-06 DATE Revised -08 Airport Golf Course DATE Revised 06-23-06 DATE Revised 03-01-0909 0 Office Q Church/Cemetary ®Office/Industrial 0 Open Water ®Office/Public/Open Space 0 Right-Of-Way `""""°"°"'°A° ""°°"°'""°" w."--" <_.< ."•,°_"® - Industrial 0.25 0.125 0 Miles Zoning Map Grand Haven at Marsh Cove 17850 Duck Lake Trail, Eden Prairie MN 17T . Li7LTL--L-1 1 1 Y•, C SITE Boyd Avenue I Lorena Lane Duck Lake Trail — _ 0 Rural -Regional Commercial Shoreland Management Classifications N 0 R1-44 One Family-44,000 sf.min. -TC-C FNE1 Natural Environment Waters R1-22 One Family-22,000 sf min. -TC-R FIRD Recreational Development Waters 0 R1-13.5 One Family-13,500 sf min. -TC-MU FGD1 General Development Waters(Creeks Only) } 0 R1-9.5 One Family-9,500 sf min. 0 Industrial Park-2 Acre Min, ® 100- Year Floodplain 0 RM-6.5 Multi-Family-6.7 U.P.A.max. 0 Industrial Park- 5 Acre Min. -RM-2.5 Multi-Family-17.4 U.P.A.max. General Industrial-5 Acre Min. dated through approved Ordinances 08 Ordinance#33-2001(BFI Addition)approvedved,,but not shown on this map edition 0 Office 0 Public Date:March 1,2009 + O Neighborhood Commercial Golf Course entl etle°M1°tl legal tl°s°rlp�lon on ale et Etl°n Prelrle Clry Center wlll pr°vell. Community Commercial Water -Highway Commercial 0 Right of Way 0 0.1 0.2 -Regional Service Commercial Milest �..... ..a...._,.A. ..,_,.,, w.a..,.,m.,m Aerial Map Grand Haven at Marsh Creek 17850 Duck Lake Trail, Eden Prairie, MN a. SITE - �. '`•. . Boyd Avenue Lorena Lane P Ow • Y J.sf E' `.1 .1� Duck Lake Trail �t .� N APPROVED MINUTES EDEN PRAIRIE PLANNING COMMISSION MONDAY,JUNE 13, 2011 7:00 P.M., CITY CENTER Council Chambers 8080 Mitchell Road COMMISSION MEMBERS: Matt Fyten, John Kirk, Katie Lechelt, Jacob Lee, Jerry Pitzrick, Kevin Schultz, Jon Stoltz, Travis Wuttke STAFF MEMBERS: Michael Franzen, City Planner Rod Rue, City Engineer Stu Fox, Manager of Parks and Natural Resources Julie Krull, Recording Secretary I. PLEDGE OF ALLEGIANCE—ROLL CALL Chair Stoltz called the meeting to order at 7:00 p.m. Pitzrick and Wuttke were absent. II. APPROVAL OF AGENDA MOTION by Schultz, seconded by Lee, to approve the agenda. Motion carried 6-0. III. MINUTES A. PLANNING COMMISSION MEETING HELD ON MAY 23, 2011 MOTION by Kirk, seconded by Fyten, to approve the minutes. Motion carried 4-0. Lechelt and Schultz abstained. IV. INFORMATIONAL MEETINGS V. PUBLIC MEETINGS VI. PUBLIC HEARINGS B. GRAND HAVEN AT MARSH COVE by Marsh Cove, LLC. Location: 17850 Duck Lake Trail Request for: • Guide Plan Change from Church to Low Density Residential on 6.41 acres, and from Church to Park/Open Space on 5.21 EDEN PRAIRIE PLANNING COMMISSION MINUTES June 13, 2011 Page 2 • Planned Unit Development Concept Review on 11.62 acres • Planned Unit Development District Review on 11.62 acres • Zoning District Change from Public to R1-13.5 on 6.41 acres • Preliminary Plat of 11.62 acres into 16 lots and 1 outlot Jeff Schoenwetter, 5250 West 74h Street, Suite 8, Edina, MN, gave the history of the project. He stated this project is north of Duck Lake Trail and south of Edenbrook. Mr. Schoenwetter pointed out the 3 acre park on the property is important to development and will be preserved. In looking at geometry of how each home is set up it is unique. He pointed out they wanted to come up with something that would create a difference and that is how the 11 acres are to be developed. Their goal is to create more of a green neighborhood. They are also giving 27% of the land for park dedication. Mr. Schoenwetter pointed out the homes that would ultimately be built would be a little bit smaller than what is stated in the plan. By setting up homes at a slight angle and a curved road, it will create view corridors. Another idea they are looking at is community lighting; which can be done by putting up 300 watts on the garage on solar cell and having them all come on in the evening at the same time. They are also creating a pathway or trail on the property, and planting more pine trees and significantly more shade trees, which will improve air quality. In regards to water, they are building a pond and will also have city water in these homes. Rick Harrison also spoke on behalf of the project. He stated the reason for the PUD is to create something special for people living in the neighborhood. Many of the lots are very deep. Because they want to create these different shapes of the lots, they have to be free of grid. The lots are not the typical rectangular shapes. This cannot be done with a standard PUD. When looking at side yards, none of these homes are parallel. He utilized the overhead projector to show visualization of the property. In looking down the street, it is a very open area and ultimately leads to the park. He showed the different views from homes in the area and the park. The intent with this plan is to be creative and efficient and stated it cannot be done without a PUD, and it is needed to put these mechanisms in place. Stoltz asked Franzen to review the staff report. Franzen said the commission has two decisions, what should the property be used for, a church or single family homes; and what plan should be approved, a conforming plan or a plan with waivers. Franzen talked about the reasons the City used for granting waivers in the past and the impact of granting the waivers on the adjoining properties. When homes are setback farther in the lot it reduces the back yard area to the homes in the subdivision to the east and west of the site. Franzen indicated the options in the staff report for approval as submitted and a continuance with direction to revise the plans to meet code. He pointed out low density is fine,but the best fit for a neighborhood is to have a conforming project. EDEN PRAIRIE PLANNING COMMISSION MINUTES June 13, 2011 Page 3 Kirk asked what changes Franzen would look at to make it conforming. Franzen said they would go straight by the ordinance for setbacks. Lechelt asked if this project would create a stronger tax base for the City. Franzen any development of land will have an impact on the tax base,but because the project is small it would not be that much of a difference. Lechelt asked if there were any other conforming projects coming forward. Franzen stated the Rogers Development is a conforming project and is in,but not on the schedule. Mr. Schoenwetter commented they feel the design of the project would better the neighborhood. Mr. Harrison asked if they should limit the views and have a big piece of concrete at the end of the development or make it a more appealing neighborhood. He stated it's all about character. Fyten asked Franzen if this PUD request was excessive to what has been granted in the past. Franzen stated proportionately to the size of the property and number of units, the plan has a lot of waivers. Lechelt asked the project proponent if there had been any interest in the property. Mr. Schoenwetter stated several people have expressed interest and would like to reserve a spot and two are actually from the existing neighborhood. Lechelt stated this is a good project and likes the new ideas to this project. Schultz asked Franzen if he had any dialog with the City in regards to storm water run-off and infiltration. Franzen stated that the plans conceptually meet the requirements, the conditions in this staff report are related to construction drawings requiring an approval before a permit is issued. Schultz stated he feels there is a lot the project proponent could conform to in regards to City standards and would be more inclined for a continuance. Kirk asked if there was a neighborhood meeting and if so, was there any feedback. Franzen said the neighborhood meeting was held several months ago and the reaction was mixed. Schultz said he has a concern with how far the houses are sitting back and how it affects the surrounding neighbors. Lee asked if they conform to the backyard setbacks. Schoenwetter commented they do comply with the backyard setback. Lechelt asked if there were any traffic concerns with this new development. Rue said there were no traffic concerns. Stoltz opened the meeting up for public input. EDEN PRAIRIE PLANNING COMMISSION MINUTES June 13, 2011 Page 4 Barbara Chacko, of 6722 Boyd Avenue, which is east of the project, stated the developer did a nice job with the presentation at the public meeting and the only concern she has with it, is with the views and setbacks,but feels it is a much better idea than if there was a church in the area. She said she is also happy with the wetland setback and pointed out the design is lovely,but she is also concerned with the current views she has. Stoltz asked if she was in favor of the project. Mrs. Chasko said it was a lovely plan. Mr. Chacko, of 6722 Boyd Avenue, said his concern is a general one. He asked, with this big development, 3 years down the road, are we going to lose more natural area to this land. He stated he wants to make sure it stays the way it is. Stoltz asked City Staff if they had a comment. Rue said there is a pond and buffer designed in the area. Mr. Schoenwetter pointed out again that this site is dedicating 3 acres to the City. Brian Christofis, of the design team, said there is a 40 foot buffer they will maintained and in regards to the rear yard setbacks, their intent is to preserve almost all of the boundary trees. Lechelt asked if the pond that would be created is a nurp or infiltration pond. Rue said it would be a nurp pond. Lechelt asked about storm water and what is put in place for this. Rue said they have met the standards for this but would work closer with the project proponent as the project develops. Stoltz asked Fyten what his thought were in regards to this project. Fyten said even though there are a lot of waivers, they do not seem too high and because of that, doesn't have a huge concern with it and feels it is a nice plan. Stoltz asked Franzen how long they have been talking with the project proponent. Franzen stated they have been talking with them for months. Stoltz asked if the City had more time could this become more of a conforming project. Franzen stated even if there was more time it would not change Staff's position or the project proponent's position. Lisa Rebeck, of 17724 Duck Lake Trail, said she is concerned with the stress of traffic coming into the area with all of the development and said she is not in favor of this project. Barbara Chacko asked a clarifying question; is this going to be open public space or private park space. She stated the hill has been used for sledding in the neighborhood and even though developers stated that access would be open, she is concerned about the park area. Franzen stated the park area would be City owned. EDEN PRAIRIE PLANNING COMMISSION MINUTES June 13, 2011 Page 5 John Goergen, of 6805 Lorena Lane, said he is in favor of having this residential unit in the neighborhood. In regards to the pond, he said when he moved in 23 years ago, there was a much bigger pond in the area. If it is maintained, it would be nice. Stoltz asked if he was in favor of the project. Mr. Goergen said he was in favor of the project. Carli Richards, of 6758 Boyd Avenue, which is southwest of the property stated with this development they will have a house behind them. She stated she would feel more comfortable if this project was more conforming. She also said she does not understand placements of homes and does not want to see a home go up behind her home. Stoltz asked Franzen to talk about property values. Franzen stated property values are not a code requirement. When developing properties developers will build to what the market dictates. Stoltz asked the project proponent what the average price of homes in the area would be. Mr. Schoenwetter said Franzen is correct, market value does dictate price. Currently they would be around $400,000 - $800,000 price range. Mr. Schoenwetter thanked everyone for coming out tonight and all the help City Staff has given him. Lechelt asked the project proponent about the homes behind homes in the Boyd area; are they back to back with new homes. Mr. Harrison utilized the overhead projector to show the backyard development. Stoltz asked Kirk what his thoughts were in regards to this project. Kirk said he supports single family homes and although the waivers are there, they do not seem to be a problem and he is in favor of the project. Schultz stated he has no problem with usage of development. His main concern was how this development would integrate with the neighborhoods around them. He stated since there was not that much opposition tonight,he would rescind his continuation. Lisa Rebeck is concerned with their house being built in the 1980's and then these brand new homes are going up. Lisa Johnson, of 6806 Boyd Avenue, wanted to comment she is concerned about the setbacks and how they will affect the views of the last four homes on Boyd Avenue. MOTION by Kirk, seconded by Schultz, to close the public hearing. Motion carried 6-0. EDEN PRAIRIE PLANNING COMMISSION MINUTES June 13, 2011 Page 6 MOTION by Kirk, seconded by Fyten, to recommend approval of the Guide Plan Change from Church to Low Density Residential on 6.41 acres, and from Church to Park/Open Space on 5.21, Planned Unit Development Concept Review on 11.62 acres, Planned Unit Development District Review with waivers on 11.62 acres, Zoning District Change from Public to R1-13.5 on 6.41 acres, and Preliminary Plat of 11.62 acres based on plans stamped dated June 9, 2011 and the staff report dated June 10, 2011. Motion carried 6-0. There was a five minute break in the meeting. Commissioner Schultz left at this time. VII. PLANNERS' REPORT Franzen stated there will be three public hearings at the next Planning Commission Meeting on June 27, 2011. VIII. MEMBERS' REPORT IX. CONTINUING BUSINESS X. NEW BUSINESS XI. ADJOURNMENT MOTION by Lee, seconded by Kirk, to adjourn the meeting. Motion carried 6-0. There being no further business, the meeting was adjourned at 9:20 p.m. CITY COUNCIL AGENDA DATE: July 19, 2011 SECTION: Public Hearings DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: IX.C. Community Metropolitan Ford 2011 Development/Planning Janet Jeremiah/Regina Rojas Requested Action Move to: • Close the Public Hearing; and • Adopt the Resolution for Planned Unit Development Concept Review on 16.2 acres; and • Approve 1st Reading of the Ordinance for Planned Unit Development District Review with waivers, and Zoning District Amendment in the C-Reg-Ser District on 16.2 acres; and • Adopt the Resolution for Preliminary Plat on 16.2 acres into 2 lots; and • Direct Staff to prepare a Development Agreement incorporating Staff and Commission recommendations and Council conditions. • Approve and Authorize Issuance of a Grading Permit for the Metropolitan Ford 2011 project subject to release by the City Engineer upon determination that the final contract documents conform to plans stamp dated July 12, 2011, as approved by the City Council; and • Approve and Authorize Issuance of a footing and foundation permit for the Metropolitan Ford Project subject to release by the Chief Building Official that the building permit conforms to plans stamp dated July 12, 2011, as approved by the City Council. Synopsis The project includes modifying the existing Suburban Chevrolet building to add a car wash and change the exterior of the front of the building. The project also includes the construction of 39,750 square foot Ford building. Waivers are needed for a zero lot line setback to parking and increased outdoor display. Background Information The planned unit development waivers are: Lot 1 (Metropolitan Ford) 1. A PUD waiver for a 0-foot setback to parking from the common lot line. A cross-access easement is required for the shared driveway. This is a common waiver in commercial projects with a common lot line. 2. Outside Storage and Display of 186% of the base area of the building City code permits up to 6% of the base area of the building which is 1,892 square feet. 58,800 square feet is proposed. The outdoor storage area will be screened with existing trees. The city has previously approved waivers for permanent outdoor display for the entire 16.2 acres as part of the 1990 approved plan. Lot 2 (Suburban Chevrolet) 1. A PUD waiver for a 0-foot setback to parking from the common lot line. A cross-access easement is required for the shared driveway. This is a common waiver in commercial projects with a common lot line. 2. Outside Storage and Display of 96% of the base area of the building. City code permits up to 6% of the base area of the building which is 3,324 square feet. 53,000 square feet is proposed. The outdoor storage area will be screened with existing trees. The city has previously approved waivers for permanent outdoor display for the entire 16.2 acres as part of the 1990 approved plan. The 120-Day Review Period Expires on September 22, 2011. Planning Commission Recommendation This project was scheduled for the June 13, 2011 meeting. The applicant sent a letter to the commission requesting a continuance. The Commission did not discuss item and voted to continue the project at the request of the applicant to the June 27, 2011 meeting. The Planning Commission voted 5-0 to recommend approval of the project at the June 27, 2011 meeting, based on revised plans with no white paint on the brick on the existing Suburban Chevrolet building. Attachments 1. Resolution-PUD Concept 2. Resolution-Preliminary Plat 3. Staff Report-June 10, 2011 4. Staff Report-June 24, 2011 5. Location Map 6. Land Use Map 7. Zoning Map 8. Aerial photo 9. Planning Commission Minutes-June 13, 2011 10. Planning Commission Minutes-June 27, 2011 Metropolitan Ford 2011 CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2011- A RESOLUTION APPROVING THE PLANNED UNIT DEVELOPMENT CONCEPT OF METROPOLITAN FORD 2011 FOR THOMAS GROSSMAN FAMILY L.P. 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 June 27, 2011, on Metropolitan Ford 2011 by Thomas Grossman Family L.P. 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 July 19, 2011. NOW, THEREFORE, BE IT RESOLVED by the City Council of Eden Prairie, Minnesota, as follows: 1. Metropolitan Ford 2011, 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 July 12, 2011. 3. That the PUD Concept meets the recommendations of the Planning Commission June 27, 2011. ADOPTED by the City Council of the City of Eden Prairie this 19"'day of July, 2011 Nancy Tyra-Lukens, Mayor ATTEST: Kathleen A. Porta, City Clerk EXHIBIT A PUD Concept- (Metropolitan Ford 2011) Legal Description: Lot 1, Block 1 Menard 3rd Addition Metropolitan Ford 2011 CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2011- RESOLUTION APPROVING THE PRELIMINARY PLAT OF METROPOLITAN FORD 2011 FOR THOMAS GROSSMAN FAMILY L.P. BE IT RESOLVED, by the Eden Prairie City Council as follows: That the preliminary plat of Metropolitan Ford 2011 for Thomas Grossman Family L.P. stamp dated July 12, 2011, and consisting of 16.2 acres into 2 lots, a copy of which is on file at the City Hall, is found to be in conformance with the provisions of the Eden Prairie Zoning and Platting ordinances, and amendments thereto, and is herein approved. ADOPTED by the Eden Prairie City Council on the 19"'day of July 2011 Nancy Tyra-Lukens, Mayor ATTEST: Kathleen A. Porta, City Clerk STAFF REPORT TO: Planning Commission FROM: Regina Rojas, Planner H DATE: June 10, 2011 SUBJECT: Metropolitan Ford 2011 OWNER/ APPLICANT: Thomas Grossman Family L.P. LOCATION: 12475 Plaza Dr 120 DAY REVIEW: Expires September 16, 2011 REQUEST: • Planned Unit Development Concept Review on 16.2 acres • Planned Unit Development District Review with waivers on 16.2 acres • Zoning District Amendment in the C-Reg-Ser Zoning District on 16.2 acres • Site Plan Review on 16.2 acres • Preliminary Plat on 16.2 acres into two lots Staff Report—Metropolitan Ford 2011 June 6, 2011 Page 2 BACKGROUND The Comprehensive Guide Plan shows the site as Regional Commercial. Surrounding land uses are Regional Commercial. The property is zoned Commercial Regional Service. APPROVED PLAN In 1992, the city approved a plan for 115,754 square foot building that was to include 4 car dealerships. Only Suburban Chevrolet (61,000 sf) was built. The City approved a waiver to use the parking lot for outdoor storage and display. SITE PLAN Lot 1 shows a proposed 39,570 square foot Metropolitan Ford dealership. The Base Area Ratio is .13 and the Floor Area Ratio is 0.15. City Code permits up to a 0.20 BAR and 0.40 FAR in the Commercial Regional Service District. Lot 2 shows a 1,111 square foot addition to an existing 62,400 square foot Suburban Chevrolet dealership. The Base Area Ratio is .11 and the Floor Area Ratio is 0.13. City Code permits up to a 0.20 BAR and 0.40 FAR in the Commercial Regional Service District. Both building meet the setback requirements for the Commercial Regional Service District. Both Lots exceed the parking space requirement for retail. PLANNED UNIT DEVELOPMENT WAIVERS The project will require the following waivers: Lot 1 (Metropolitan Ford) 1. A PUD waiver for a 0-foot setback to parking from the common lot line. A cross-access easement is required for the shared driveway. 2. Outside Storage and Display of 186% of the base area of the building City code permits up to 6% of the base area of the building which is 1,892 square feet. 58,800 square feet is proposed. The outdoor storage area will be screened with existing trees. The city has previously approved waivers for permanent outdoor display for Metropolitan Ford and Suburban Chevrolet provide the area is screened from public roads and adjacent differing land uses. 2 Staff Report—Metropolitan Ford 2011 June 6, 2011 Page 3 Lot 2 (Suburban Chevrolet) 1. A PUD waiver for a 0-foot setback to parking from the common lot line. A cross-access easement is required for the shared driveway. 2. Outside Storage and Display of 96% of the base area of the building. City code permits up to 6% of the base area of the building which is 3,324 square feet. 53,000 square feet is proposed. The outdoor storage area will be screened with existing trees. The city has previously approved waivers for permanent outdoor display for Metropolitan Ford and Suburban Chevrolet provide the area is screened from public roads and adjacent differing land uses. EXTERIOR MATERIALS The Metropolitan Ford building conforms to City code meeting the 75% face brick, natural stone, cast stone, cultured stone, architectural precast, glass precast requirement for commercial zoning. The existing Suburban Chevrolet building conforms to exterior material requirements. With modifications the building still conforms. The proposed painting of the brick would be inconsistent with the approved plan and site plan review. The painting of brick or any material in the 75% category would be counter to the reasons why these materials were selected as the primary building materials; high quality, durable, maintenance free, variety of colors and textures, and sustainable. Once the brick is painted the color, texture, and detail is lost, and the building looks plain. Brick contains little passageways that accept water. This can be positive depending upon exposure to the rain, snow, heat, wind, and temperature conditions, strength of the individual brick, etc., it can work against the long term durability of the masonry. Paints and sealants can slow down, or stop, the ability of a brick or masonry surface to breathe. Because they form a film at the surface of the brick, they stop trapped water or water vapor from escaping into the atmosphere. In colder climates, this can cause brick spalling (flaking) when water, trapped behind the sealant, freezes, expands and fractures the brick or masonry. Film forming sealants can also trap dirt, discolor, change the color of the masonry or brick, and produce a sheen or gloss when applied. 3 Staff Report—Metropolitan Ford 2011 June 6, 2011 Page 4 SITE PLAN REVIEW The City adopted an ordinance in 1989 for evaluating a site plan and architectural design based on different criteria including such items as drainage, traffic, preservation of natural features, open space, landscaping and architecture. For buildings, there should be compatibility of materials, textures, colors, and other construction details with other structures and uses in the vicinity. This can be seen in many commercial developments such as Fountain Place, Rainbow Foods, and Lone Oak Center. Using this approach, both the existing and proposed building should be using the same combinations of exterior materials, textures, colors, and construction details in order to meet the criteria for compatibility. The building plans as proposed do not fit this criteria. The staff recommends the following: • The brick should not be painted on the Suburban Chevrolet building. • The metal color and the main brick color on the Ford building should match the Suburban Chevrolet building. GRADING AND DRAINAGE The existing storm water pond will be expanded and porous pavement will be used to accommodate the addition to Suburban Chevrolet and proposed Metropolitan Ford building. LANDSCAPING AND TREE REPLACEMENT Tree replacement required is 78 inches for this site. The landscaping requirement is 97.3 caliper inches. A total of 176 caliper inches is provided meeting code. SIGNS The signs for Suburban Chevrolet are consistent with the approved plan. The proposed signs for Metropolitan Ford meet code requirements. SITE LIGHTING Parking lot lighting is downcast-cutoff fixtures on maximum 20-foot high poles. The site lighting is consistent with the 1992 approved plan for lighting intensity. 4 Staff Report—Metropolitan Ford 2011 June 6, 2011 Page 5 STAFF RECOMMENDATION Option 1 Recommend approval of the following request: • Planned Unit Development Concept Review on 16.2 acres • Planned Unit Development District Review with waivers on 16.2 acres • Zoning District Amendment in the C-Reg-Ser Zoning District on 16.2 acres • Site Plan Review on 16.2 acres • Preliminary Plat on 16.2 acres into two lots This approval is based on plans dated June 7, 2011, subject to the recommendations of this Staff Report, and the following: 1. Prior to grading permit issuance, the proponent shall: A. Submit detailed storm water runoff, utility and erosion control plans for review by the City Engineer. B. Install erosion control at the grading limits of the property for review and approval by the City Engineer. 2. Prior to building permit issuance for the property, the proponent shall: A. Submit detailed building plans to the Inspections Department and Fire Marshal for their review and approval. 3. The following waivers are granted through the PUD for the project: Lot 1 (Metropolitan Ford) A. A PUD waiver for a 0-foot setback to parking from the common lot line. A cross- access easement is required for the shared driveway. B. Outside Storage and Display of 186% of the base area of the building. City code permits up to 6% of the base area of the building which is 1,892 square feet. 58,800 square feet is proposed. 5 Staff Report—Metropolitan Ford 2011 June 6, 2011 Page 6 3. Lot 2 (Suburban Chevrolet) A. A PUD waiver for a 0-foot setback to parking from the common lot line. A cross- access easement is required for the shared driveway. B. Outside Storage and Display of 96% of the base area of the building. City code permits up to 6% of the base area of the building which is 3,324 square feet. 53,000 square feet is proposed. Option 2 Recommend a continuance of the project to the July 11, 2011 Planning Commission meeting and direct the proponent to revise the plans as follows: A. The brick should not be painted on the Suburban Chevrolet building. B. The metal color and the main brick color on the Ford building should match the Suburban Chevrolet building. 6 STAFF REPORT TO: Planning Commission FROM: Regina Rojas, Planner H DATE: June 24, 2011 SUBJECT: Metropolitan Ford 2011 OWNER/ APPLICANT: Thomas Grossman Family L.P. LOCATION: 12475 Plaza Dr 120 DAY REVIEW: Expires September 16, 2011 REQUEST: • Planned Unit Development Concept Review on 16.2 acres • Planned Unit Development District Review with waivers on 16.2 acres • Zoning District Amendment in the C-Reg-Ser Zoning District on 16.2 acres • Site Plan Review on 16.2 acres • Preliminary Plat on 16.2 acres into two lots Staff Report—Metropolitan Ford 2011 June 24, 2011 Page 2 CONTINUED ITEM This is a continued item from the June 13, 2011 meeting. BACKGROUND The Comprehensive Guide Plan shows the site as Regional Commercial. Surrounding land uses are Regional Commercial. The property is zoned Commercial Regional Service. APPROVED PLAN In 1992, the city approved a plan for 115,754 square foot building that was to include 4 car dealerships. Only Suburban Chevrolet (61,000 sf) was built. The City approved a waiver to use the parking lot for outdoor storage and display. SITE PLAN Lot 1 shows a proposed 39,570 square foot Metropolitan Ford dealership. The Base Area Ratio is .13 and the Floor Area Ratio is 0.15. City Code permits up to a 0.20 BAR and 0.40 FAR in the Commercial Regional Service District. Lot 2 shows a 1,111 square foot addition to an existing 62,400 square foot Suburban Chevrolet dealership. The Base Area Ratio is .11 and the Floor Area Ratio is 0.13. City Code permits up to a 0.20 BAR and 0.40 FAR in the Commercial Regional Service District. Both building meet the setback requirements for the Commercial Regional Service District. Both Lots exceed the parking space requirement for retail. PLANNED UNIT DEVELOPMENT WAIVERS The project will require the following waivers: Lot 1 (Metropolitan Ford) 1. A PUD waiver for a 0-foot setback to parking from the common lot line. A cross-access easement is required for the shared driveway. 2. Outside Storage and Display of 186% of the base area of the building City code permits up to 6% of the base area of the building which is 1,892 square feet. 58,800 square feet is 2 Staff Report—Metropolitan Ford 2011 June 24, 2011 Page 3 proposed. The outdoor storage area will be screened with existing trees. The city has previously approved waivers for permanent outdoor display for Metropolitan Ford and Suburban Chevrolet provide the area is screened from public roads and adjacent differing land uses. Lot 2 (Suburban Chevrolet) 1. A PUD waiver for a 0-foot setback to parking from the common lot line. A cross-access easement is required for the shared driveway. 2. Outside Storage and Display of 96% of the base area of the building. City code permits up to 6% of the base area of the building which is 3,324 square feet. 53,000 square feet is proposed. The outdoor storage area will be screened with existing trees. The city has previously approved waivers for permanent outdoor display for Metropolitan Ford and Suburban Chevrolet provide the area is screened from public roads and adjacent differing land uses. EXTERIOR MATERIALS The Metropolitan Ford building conforms to City code meeting the 75% face brick, natural stone, cast stone, cultured stone, architectural precast, glass precast requirement for commercial zoning. The existing Suburban Chevrolet building conforms to exterior material requirements. With modifications the building still conforms. The proposed painting of the brick would be inconsistent with the approved plan and site plan review. The painting of brick or any material in the 75% category would be counter to the reasons why these materials were selected as the primary building materials; high quality, durable, maintenance free, variety of colors and textures, and sustainable. Once the brick is painted the color, texture, and detail is lost, and the building looks plain. Brick contains little passageways that accept water. This can be positive depending upon exposure to the rain, snow, heat, wind, and temperature conditions, strength of the individual brick, etc., it can work against the long term durability of the masonry. Paints and sealants can slow down, or stop, the ability of a brick or masonry surface to breathe. Because they form a film at the surface of the brick, they stop trapped water or water vapor from escaping into the atmosphere. In colder climates, this can cause brick spalling (flaking) when water, trapped behind the sealant, freezes, expands and fractures the brick or masonry. Film 3 Staff Report—Metropolitan Ford 2011 June 24, 2011 Page 4 forming sealants can also trap dirt, discolor, change the color of the masonry or brick, and produce a sheen or gloss when applied. SITE PLAN REVIEW The City adopted an ordinance in 1989 for evaluating a site plan and architectural design based on different criteria including such items as drainage, traffic, preservation of natural features, open space, landscaping and architecture. For buildings, there should be compatibility of materials, textures, colors, and other construction details with other structures and uses in the vicinity. This can be seen in many commercial developments such as Fountain Place, Rainbow Foods, and Lone Oak Center. Using this approach, both the existing and proposed building should be using the same combinations of exterior materials, textures, colors, and construction details in order to meet the criteria for compatibility. The building plans as proposed do not fit this criteria. The staff recommends the following: • The brick should not be painted on the Suburban Chevrolet building. • The metal color and the main brick color on the Ford building should match the Suburban Chevrolet building. GRADING AND DRAINAGE The existing storm water pond will be expanded and porous pavement will be used to accommodate the addition to Suburban Chevrolet and proposed Metropolitan Ford building. LANDSCAPING AND TREE REPLACEMENT Tree replacement required is 78 inches for this site. The landscaping requirement is 97.3 caliper inches. A total of 176 caliper inches is provided meeting code. SIGNS The signs for Suburban Chevrolet are consistent with the approved plan. The proposed signs for Metropolitan Ford meet code requirements. 4