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HomeMy WebLinkAboutAgenda Packets - 1999/04/05 CITY OF MOUNDS VIEW WORK SESSION AGENDA April , 1999 6.00 p.m. Items Discussed Per Consensus 1. YMCA Community Center Management Agreement and Catering Contracts 2. Year 2000 Budget and Long Term Financial Plan Process Schedule 3. 8300 Fairchild Ave. - Request for Participation in Housing Replacement Program 4. Redevelopment Options - 2091 Hillview Drive 5. Mini Wetland Informational Seminar, dealing with Woodcrest Park and The Possibilities for the new Edgewood Parcel 6. Streets Committee Draft Report 7. Consideration to Submit Application to MnDOT for MSA System Certification 8. Golf Course Billboards and Truck Purchase 9. Consideration of Resolution Regarding Building Inspection Agreement 10. Consideration of Resolution no. 99EDA-108, Resolution Approving An Amended Development Assistance Agreement with Michael Investments Concerning the Building N Project 11. Position Reclassification- Assistant City Administrator 12. Review of Options Regarding Airport Sound Abatement Committee And Update of Airport Legislation April 1, 1999 To: Honorable Mayor and City Council From: Chuck Whiting, City Administrator Re: Monday,April 5, 1999 City Council Work Session With the Council agreeing to go to an additional work session each month, this has shortened the agenda for Monday evening. A reminder, Council members can look ahead to future agendas by clicking on the agenda icon on your office computer. We do change it from time to time, but it can give you an idea of what's coming up. For Monday, here's what we've got: Item 1 -YMCA and Catering Agreements: Bruce is finishing up drafts of both for the packet and will present them Monday evening. Item 2 -Year 2000 Budget Schedule: The City has set schedules in the past for dealing with the next year's budget, essentially making sure that some process is in place. In your packet is 1998's schedule . What is not clear from this is the objectives the Council would like to see met in the next budget nor whether the Council is comfortable in knowing how the budget truly works. I suggest doing two things, first, recognize that a schedule will be needed to process the budget. Second, a great deal of planning helps facilitate this process. This means not only being clear about objectives for the city to meet, but also some work on whether the budget can really meet those objectives. This year I would suggest we spend some time on community development planning and tax increment funds since those have been talked about a good deal. Also, with the Streets Committee Report coming out, we will need to spend some time correlated projected street improvement projects into future budget planning. These items are coming to the Council this month which will be helpful in kicking off the budget preparation. As for the schedule of meetings,we can get more formal about that after some discussion. Item 3 - 8300 Fairchild Avenue: Steve Dorgan will report on this item. Item 4 -2091 Hillview Drive Options: Steve will also report on this. Item 5-Wetlands and Woodcrest Park: See Mike's report on this item. Also,we received a letter from a resident about Woodcrest Park. Item 6 - Streets Committee Draft Report: Mary Malrick will present the committee's final draft. A resolution accepting the report will be place on the Council's agenda for next week assuming the Council approves of the draft. Item 7-MSA System Certification Request: Mike will review the process for this item. The issue was essentially raised as part of the Streets Committee work. Item 8 - Golf Course Billboards and Truck Purchase: Since these two items have elicited comments, they are on the agenda for discussion. John Hammerschmidt will be present. Council has received John's report from the last meeting on the truck purchase. As far as the billboard signs, little has been done since we last talked but we can bring it up again. Item 9 -Building Inspections Agreement: Cari and Nyle have completed the draft of the building inspections agreement and will present it to the Council Monday evening. Item 10 - Building N: This item was delayed for action in order to have the EDC review and comment. Council can do the same Monday evening. Item 11 -Assistant City Administrator Position Reclassification: Council can refer to my memo on this subject. Item 12: Aiport Update: A couple of things need to be noted with our airport efforts. First, I met two weeks ago with MAC staff and the Circle Pines administrator to go over a sound abatement council in regards to our legislation. We will be meeting with MAC again later this month. I need to review a few considerations with the Council on this in order to carry this discussion on. Our legislative efforts call for a system wide abatement council which helps keep a unified interest in dealing with MAC amongst the participating communities, certainly something that is helping our legislative efforts to date. The reality though may be that ultimately we will have only real interest in noise problems at our airport. Our legislative efforts have dropped this requirement, but it may be prudent to keep the regional option on the table in our discussions. As for Mounds View's involvement,I would like to know from the Council who and how many local residents do you think should be involved, whether concerns exist about the efficacy of the committee (I have mine) and anything else. I included in your packet a report Cari put together for St. Louis Park on the MSP abatement council that may give some insight to options to consider. Next, our bill passed the senate Local Government Affairs committee Wednesday. Senator Novak did a great job responding to committee questions and MAC retorts. The vote was 9 to 5. Now the bills are heading to the floors of each house and additional work will be needed. We met after the committee meeting and suggest a number of things be done. First, encourage council members and anyone you can find to call Novak's office at 651-296-4334 or E-mail at sen.steve.novak@senate.leg.state.mn.us and thank him for his efforts and then ask what he would like you to do next to help get it through the senate. We think the number of calls helped, and we think we will need another effort for the next stage. Second,plan on attending and inviting everyone you can think of to a house leadership town meeting here in Mounds View in the council chambers, April 14 at 7 p.m(I have to check this time). Speaker Sviggum and Majority Leader Pawlenty will be here with Barbara Haake to review the house's work to date. They will need to see and hear the interest of Mounds View residents on this issue. This bill can still be stopped, so this is a serious opportunity to get the message to house leadership. Third, anyone you know with connections to anyone at the legislature should contact them and ask for their support. Remember that most of the members from around the state either don't care or know about this issue and have to be given a reason to vote for it. The argument that the legislature is the appropriate body for deciding on the definitions of metropolitan airports,not the unelected MAC and Met Council is striking home with people. I also agreed to extend Chris Georgecas' work lobbying with Bob Long at the capital. I will check to see the actual commitment to date,but it should be close to $4,000 for his efforts. Another $2,000 is what I will pass along to Bob to start Chris off again. Fourth, in your packet is a Court of Appeals decision to reverse Judge Finley's ruling on the injunction for the airport plan. While this is not good, our situation at the capital could negate the concern altogether. Bob Long is drafting a letter to the Met Council asking that they not restart the plan process while the issue is still before the legislature. Hopefully they will find that a prudent consideration. Finally,Jim Strommen submitted the discovery stipulations on our litigation and that is copied to you for your information. None of this requires any Council action to this point,but your feedback will be helpful,particularly if there is to be a change in direction. There's more but I've got to wrap it up. Have a good holiday weekend and see you Monday. City of Mounds View Staff Report To: Honorable Mayor & Members of the City Council From: Bruce A. Kessel, Finance Director Item Title/Subject: Update on YMCA and catering contract for Community Center Date of Report: April 1, 1999 YMCA Contract Attached is the latest contract with the YMCA. Kennedy& Graven reviewed the Contract and made several changes. After their review, I met with the YMCA and based upon that discussion, the contract was modified with the strike outs and underlining you will see on the attached contract. The main section that needs to be discussed with the YMCA in greater detail is the compensation section. Staff needs input from the Council relating to the main provisions of the contract to insure that we are addressing your concerns. Liquor Catering contract It is the staffs' opinion that to limit the City's liability and also to minimize potential problems at the Community Center, that all liquor(intoxicating and non-intoxicating) liquor must be dispensed by a holder of a valid on-sale liquor license. To maintain control, we feel that it should be a Mounds View licensee. We contacted the three such licensees in Mounds View and only one was interested in providing such service. Our goals in negotiating a contract were to have some control over the price charged, obtain a% of sales for the City, insure that liquor is dispensed in accordance with state laws, that crowds do not get out of control,that if there is damage to the Facility that the liquor vendor covers the cost to repair such damage, and to minimize disruptions with other users of the Facility. If the Council is uncomfortable with an exclusive vendor,we would recommend that a list of approved vendors be approved, but that the list be restricted to a set number. If the Council wishes to allow a licensee from a surrounding community to dispense liquor at the Facility, we may need to amend our Code or require that such a licensee become licensed in Mounds View. Food Catering Contract Again, our goals were similar to the Liquor catering, ie to have some control over the price charged, obtain a% of sales for the City, insure that proper sanitary methods are used, that if there is damage to the Facility that the caterer covers the cost to repair such damage, and to minimize disruptions with other users of the Facility. To date, no other cater has expressed a serious interest in providing catering services at the Facility. One caterer indicated that there would not be enough volume to make it worth their while. Elegant Tymes has brought corporate business to the Facility that we would not have otherwise received. It also split the cost of a booth at the Mpls bridal fair, and has performed other joint City of Mounds View Staff Report April 1, 1999 Page 2 marketing with us allowing us to receive more exposure at a lower overall cost. It has also provided food at community type events substantially below its normal costs (Girl Scout Father /daughter dance and spaghetti dinner at$3.50 per person, Irondale Band Boosters swing dance - die at$0.50 per slice, etc.) If we do not maintain some type of exclusive arrangement, it has indicated that it is less likely to continue to provide these services at the aforenoted prices. Other banquet centers have indicated that they have one full time employee who deals with scheduling banquets during normal business hours. In addition, they need additional personnel to deal with nights and weekends. An exclusive arrangement results in less staff time to manage. The more caterers we allow, the more time it will take to oversee. At the present time, our arrangement with Innovative Images is $18,000 or a% of the gross. For the first year, $18,000 appears to be the compensation that will be paid. After factoring in payroll taxes, etc., this would be equal to less than '/2 of a full time position. If the City was to hire employees to perform these duties, it is estimated that it would be one full time employee plus additional help for nights and weekends. With an exclusive arrangement for the food catering,there will be less time required insuring that a caterer has valid licenses and insurance, and less time monitoring, overseeing, coordinating between events, collection our percentage (if we require a%), etc. If there is damage done to the Facility, with multiple vendors it may be harder to determine who is to be held responsible. If we allow multiple caterers, Innovative Images has indicated that it may request that her contract be renegotiated. Elegant Tymes has indicated that if there is not an exclusive arrangement, it will not provide some of the services that it presently provides. In addition, if there is not a house caterer, costs will increase for some items (transporting linens, china, etc.) and some items that the caterer is presently providing would have to be paid for by the City - dish washer, industrial coffee pot, etc. Attached is a letter outlining additional items to be consider from Innovative Images. Options: 1. Exclusive arrangement as presently contemplated which may assist in establish the Banquet Center by developing a partnership with a caterer and use the resource of both parties to market and promote the facility. Control rates charged by maintaining control over the prices charged. Evaluate the arrangement after a period of time to insure that it is functioning as envisioned. 2. House caterer with exclusivity for certain days of the week(Thursday - Saturday). 3. House caterer with approved list of additional caterers. Additional caterers would need to be approved by City and provide copy of caterers license, insurance, etc. and method to charge a set fee or% fee for providing catering services at the Facility. 4. Allow anyone with a caterers license to provide food service. • MEMO TO: MAYOR AND CITY COUNCIL FROM: SHARIE LINKE, MOUNDS VIEW COMM. CTR. BANQUET MANAGER INNOVATIVE IMAGES MARKETING DATE: FEBRUARY 18, 1999 SUBJECT: MOUNDS VIEW COMMUNITY CENTER BANQUET CENTER The following information is provided to the Mayor and City Council so you may make an informed decision regarding the catering and liquor services at the Mounds View Community Center. As part of my involvement as Banquet Manager for the Community Center I researched the types of policies and services offered at other community centers. It was from this research and the direction that I was given by the administration and past Council that I developed the policies and services for the Banquet Center. I was originally directed to run the banquet center as a business in order to provide revenue for the operations of the community center. Through development of contracts with Elegant Thymes and Roberts Beverage Service, the City receives a percentage of the sales in addition to the rental fees. As we continue to market the facility and the popularity grows, the City will see an increase in revenues. I anticipate that after the Bridal Fair at the Minneapolis Convention Center on March 7, we will have booked up much of the late summer and fall in 1999 and much of the first six months in the year 2000. For the months of January through April we have 21 events scheduled in the Community Center Banquet Facility. They include corporate meetings, non-profit organization gatherings, Chamber of Commerce and School District events, and City events. Our first wedding reception for 1999 is scheduled in May which was referred to us by Elegant Thymes Catering. There are many facilities in the metropolitan area that offer banquet facilities. These facilities vary greatly from the VFW and American Legion Halls to the large ballrooms of the Minneapolis and St. Paul Hotels. In between you have quaint manors and mansions, country clubs, restaurants, church basements and of course community centers. Some community centers allow the renter to do everything themselves which often includes setting up their own tables and chairs, finding their own caterer, cleaning up after the event, finding all the needed equipment, etc. Other community centers offer some of the set up services for additional fees. Then there are community centers such as ours that are a full service facility offering the client complete services without having to spend extra money and time making all the added arrangements. For a facility such as ours that is well appointed with lovely tables and chairs, high ceilings and fabulous dance floor, I felt that was the way to go. Having just had two children get married within three weeks of each other I feel that I have some experience in this area. My son had an outdoor wedding for over 200 guests. I did all the cooking, serving, wedding cake, decorations (I ran a catering business years ago).... and I was exhausted. My daughter on the other hand had a lovely wedding reception at the White 1 Bear Lake Country Inn. Everything was done for us including cutting and serving the cake (for an additional fee of course). It was great! The catering menus offer feature a wide variety of prices (please see attached menus.) They are very competitive with restaurants and other catering companies. In addition, Robin Odgers, co-owner and chef of Elegant Thymes makes a special effort to work individually with each client to develop a menu that is within their budget. In other words, these menus are not set in stone. The advantages to working with one caterer include: • Developing a mutually beneficial relationship in the area of marketing the facility thereby drawing clients from both our marketing.and Elegant Thymes excellent reputation. • Insuring that proper sanitation methods are used through constant supervision by Robin and her Certified Food Protection Managers. ♦ Knowing that the food served by Elegant Thymes will always be of the highest quality therefore not taking a chance that a poor reputation will be established for the Community Center. • Being assured Elegant Thymes has a feeling of ownership in the facility and knowing that they will take extra care to keep it clean and maintain equipment in good working order. As a part of their commitment to offering flexible catering options, Elegant Thymes has offered several groups extremely inexpensive menus to aid in the groups fundraising efforts. Examples are: 1. Girl Scouts Father/Daughter Dance and Spaghetti Dinner. City providing the facility a $50.00 custodial fee and Elegant Thymes offering a spaghetti dinner for $3.50 per person which includes spaghetti, salad, bread, dessert and unlimited soda bar. Organizers anticipate at least 300 participants and are absolutely thrilled with the opportunity and generousity of the caterer. • 2. Irondale Band Boosters Parent Swing Dance. Again the City provides the facility fo $50.00 custodial fee and Elegant Thymes is providing cake and pie for 50 cents a slice. 3. Weekenders USA Breast Cancer Fundraiser. Room rental of $125.00 with caterers offering complete set-up of room with china, linens, glassware and continental breakfast of juices, coffee cakes and fresh rolls, coffee,--etc:.-for $4.95 per person. There are some considerations that must be made regarding the use of multiple caterers or individuals using the kitchen facilities, equipment and cleanup. Some of the concerns include: 2 1. Cross contamination of foods by unlicensed users, i.e. not using proper sanitation procedures when using counter tops, utensils, etc. 2. Major threats to the health and welfare of children in the Children's Home Society, i.e. salmonella, listeria, hepatitis, and E-coli. 3. Use of kitchen equipment by unlicensed users not only can be costly when used improperly but can cause a great liability risk. 4. Lose of revenue by forfeiting percentage of catering sales. 5. The need for a Certified Food Protection Manager to be on duty at all times in kitchen. I am a Certified Food Protection Manager but considering the amount of time I already spend in the management of the banquet center, in order to provide this service, I would need to renegotiate my contract. 6. Children's Home Society has thousands of dollars worth of equipment, supplies, etc. in the kitchen. It is almost impossible to control the loss of these items when open to residents and outside catering companies. 7. Elegant Thymes has established a working relationship with the Children's Home Society cook and they work well in the same kitchen at the same time. This would be a possible problem. Another concern would be uncontrolled use of the banquet center and it's equipment: 1. Generally the house caterer has someone on staff the entire night to bus tables and do basic clean-up of the area. Outside caterers would not take on this task and therefore, a banquet monitor would need to be hired. 2. If City set-up staff was not involved in setting up the room, there is a chance that equipment would be mistreated and would need to be replaced earlier than anticipated once again causing additional expenses to the tax payer. 3. It is risky to allow unsupervised groups to use audiovisual equipment. We have hundreds of dollars invested in this equipment and it would be a shame to have it abused. 4. If the banquet room is not maintained in top condition, the City will be unable to rent it at the current rate therefore, once again increasing the burden of the tax payers in the operations of the facility. Uncontrolled alcohol usage is a huge liability for the City and something that the City • Council should consider very carefully. Some of the problems that will arise include: 1. Underaged drinking. Without a manager or a bar service that is accustomed to providing banquet service, kids will be drinking. 2. City Attorneys would require the renter to obtain dram shop insurance at their own expense which is costly and most certainly advise the City that this was not a good idea. 3. Even though a police officer would be required to be at the event, that doesn't insure that ID's will be checked and that underaged drinking will not occur. 4. Renters would have to offer free beverages if they are bringing in their own liquor and beer because it is against the law for them to sell it without a liquor license. This would in turn give greater opportunity for people to overindulge and cause more problems. 3 5. Establishing a liquor vendor within the City was difficult and included months of negotiations. Only Roberts was interested in providing this service and they had to be convinced that it would be profitable for them. We have come up with a reasonable liquor package that is very similar to other facilities. 6. Again, the City loses revenue by not getting a percentage of the bar services which once again puts added burden on tax payers for the operation of the banquet center. Marketing and reservation services: a. The administrative aspect of multiple contractors is extremely time consuming through issuance of contracts, licensing, insurance requirements, etc. In addition, I would need to hire event monitors to supervise events that did not include Elegant Thymes Catering which has provided some of the supervision in the past. b. Marketing the Banquet Facility needs to be a continual effort and done in an aggressive manner by a person or company that is experienced in that area. Innovative Images and myself have that experience. I have been aggressively marketing the facility for over 3 months with good results. Changing formats at this time would be counterproductive to the marketing plan. c. Even though I do have regular office hours at the Community Center, reservations are taken by Innovative Images seven days a week from 8:00 a.m. - 8:00 p.m. This service certainly would not be available from a City employee. In addition, the facility is shown on an as needed basis, allowing for the flexibility in the clients schedule. I hope that the Mayor and City Council take a serious look at the proposed changes in the banquet use policies. We've offered flexibility to youth groups during weekday evenings in order to accommodate their events such as Blue and Gold Banquet, YMCA Swim Team and Girl Scouts Badge Event. We will continue to give our youth groups the opportunity to use the banquet center without the requirement for professional catering. It's the large adult gatherings on Friday, Saturday and Sunday that concern me. I foresee health, maintenance, cleaning and control problems. We all know what the basement of City Hall looked like and I just don't want our beautiful new banquet center to look the same. We are attracting a good number of corporate accounts during the weekday mornings and afternoons. It is important that we continue to offer them Elegant Thymes Catering as their company has brought us most of those clients. They are experienced in corporate accounts and do an excellent job. Both Elegant Thymes and myself are willing to work with non-profit groups, seniors and youth groups to provide them with a facility for their events held during the weekday evenings. Friday, Saturday and Sundays as well as morning and afternoon weekdays should be reserved for catered events therefore providing revenue for the City. Using Elegant Thymes as the House Caterer provides continuity in our services and ensures the health and safety of not only the children in the Children's Home Society programs but for all of our clients as well. Please don't hesitate to give me a call at 612/786-4696 if you have any questions. Thank you for your consideration of my comments. 4 MOUNDS VIEW COMMUNITY CENTER,PARKS AND RECREATION MANAGEMENT AGREEMENT THIS AGREEMENT is made, effective as of this_day of , 1999 by and between the City of Mounds View, located at 2401 Highway 10, Mounds View, Minnesota 55112 - (hereinafter "City") and YMCA OF GREATER SI, SAINT PAUL, located at 476 North Robert Street North, St. Paul, MN 55101 (hereinafter"YMCA"). WITNESSETH: WHEREAS, the City of Mounds View and desires to engage the services of the YMCA to assist with the management of the Mounds View Community Center and City recreation programing until such time that the parties enter into a Management Agreement, as contemplated by the parties, or this Agreement is terminated as provided herein; and WHEREAS, the City is the owner of the Mounds View Community Center located at 5394 Edgewood Drive in the City of Mounds View, and various City park and recreation facilities as set forth in Exhibit ; and WHEREAS, the City and YMCA recognize and acknowledge that the Mounds View Community Center includes the Banquet Facility and the Center, as defined herein, in addition to space that is currently being used for community education and day care and agree to cooperate in effectively operating and maintaining the Center for the good of all the users of the Mounds View Community Center; and WHEREAS, the City desires to engage the services of YMCA to assist with the administration of the ongoing operations, administration and development of the parks and recreation programs of City; and WHEREAS, YMCA is experienced in providing recreation services and managing facilities and is willing to enter into this Agreement; and WHEREAS,YMCA has expressed its willingness to provide such services; and WHEREAS, YMCA shall provide adequate personnel and services to assist the City with the administration of the ongoing operations, administration and development of the of the Mounds View Community Center and the parks and recreation programs of City. NOW,THEREFORE,the parties hereto do mutually agree as set forth below: ARTICLE I: DEFINITIONS OF TERMS USED IN AGREEMENT A. Center. The gymnasium, lounge/senior center and meeting rooms A and B in the Mounds View Community Center. B. City. The City of Mounds View, a municipal corporation under the laws of Minnesota. SJR-159255 MU210-35 .r under this Agreement, the term "City" shall also include any other individual or entity will provide the YMCA with a written list of any such individual(s) or entities and authorized events prior to them being included as a City use. Community Center. The entire Mounds View Community Center, including the Center and the Banquet Facility, as well as the kitchen, day care center and community education area. D. Banquet Facility. The banquet hall portion of the Mounds View Community Center. E. Parks. All City parks and park facilities. See Exhibit for a detailed list of City parks. Park facilities include but is not limited to baseball and softball fields, soccer fields, playgrounds and associated playground equipment, picnic shelters, and ice rinks and warming shelters. Excluded is The Bridges Golf Course. F. YMCA. YMCA of Greater Saint Paul, a non-profit corporation under the laws of Minnesota. G. Recreational Programming. H. Building and Equipment Replacement Reserve Fund. ARTICLE II: TERM OF AGREEMENT Due to date,will need to change the underlined bold below; see addition termination option The initial term of this Agreement will be five (5) years, commencing on January 1, 1999 and continuing through December 31, 2003. This Agreement shall automatically renew for two additional five-year terms under the terms and conditions set forth in the Agreement unless either party gives written notice of termination to the other party at least one hundred eighty (180) days before the end of the initial term or any subsequent term of this Agreement; such termination may be made by either party without penalty or cause. ARTICLE III: DUTIES AND RESPONSIBILITIES OF PARTIES A. YMCA'S Duties and Responsibilities. (NOT SURE WHAT THE Y IS DOING) YMCA shall perform professional services within its expertise as shall be requested by City and shall provide ongoing management assistance for City operations, administration, and development of the Center and the park and recreation programs of City. It is understood between the parties that such services specifically may include,but are not be limited to,the duties set forth in Exhibit B. City's Duties and Responsibilities. The City agrees to provide the resources (money, personnel??) to maintain the Center and associated equipment. In addition, The City agrees to provide or perform the additional duties set forth in Exhibit SJR-159255 MU210-35 ARTICLE IV: COMPENSATION Needs to be updated&made clearer YMCA will render services to City based upon the following: A. In 1999, the City will pay the YMCA annual compensation of$ . In future years, the amount will be adjusted for inflation. (USE INFLATION ADJUSTMENT LANGUAGE FROM ONE OF MY TOWER LEASES) For such compensation, the YMCA agrees to provide the programs and services outlined in this agreement, and to provide including but not limited to the following: 1. The employees necessary to provide the services outlined in this contract, including all costs associated with such employees. In addition to the direct payroll costs, this shall include all Ali costs associated with recruiting, hiring, training and supervising tho such employees necessary to provide the service& compensation, unemployment, retirement, vacation pay, sick pay, bonuses, etc.; 2. Office supplies, including but not limited to, copy paper, printer cartridges, stationery, envelopes,postage, computers, etc.; 3. Registration software and annual support; 4. Any advertising other than that provided by the City at its sole dissection; 5. Transportation and mileage; 6. Liability insurance; 7. First aid supplies; 8. Supplies and equipment for recreation programming, such as balls, bats, craft supplies, etc. B. At the end of each calendar year under this Agreement, the annual surplus or deficit from all SHOULD BE DEFINED TERM recreation programming will be calculated as follows: 1. All revenues from Recreation Programming will be calculated. Revenues will include any scholarships provided to participants, and any subsidies provided by the City or the YMCA in order to offer any program. (AREN'T THESE EXPENSES?) 2. All direct expenses of Recreation Programming will be subtracted. Direct expenses will include: a. Salaries and benefits for the staff involved in the programs only portion attributable to programs; and b. Supplies, equipment and other costs directly associated with the program. • 3. An administrative charge of 12.5% of all direct expenses will be calculated and subtracted. 4. The remaining balance will be that year's surplus or deficit. In the event of an annual deficit, the City will fund the first $2,000 of any such deficit with the remaining deficit being split equally between the City and the YMCA, provided SJR-159255 MU210-35 that the maximum City liability for any one year shall be$5,000. In the event of an annual surplus, the first $2,000 shall be paid to the City for use at it& sole discretion. The next $10,000 of any surplus shall be paid to the City to assist in funding the Building and Equipment Replacement Reserve Fund. Any additional annual surplus shall be split equally between the City and the YMCA. However, upon mutual consent by the City and the YMCA, any or all of tho such surplus can be used to expand recreation programming or other services in subsequent years. ARTICLE V: PERFORMANCE BOND AND INSURANCE PROVISIONS YMCA?need for performance bond&?whether City's required insurance should be included A. Performance Bond. The City reserves the right to require, in its sole discretion, that YMCA post a bond, certificate of deposit, or other similar instrument approved by the City in an amount as the City reasonably deems to be adequate compensation for damages resulting from YMCA's nonperformance of its obligations under this Agreement. B. Insurance. YMCA will maintain in full force and effect, at its own cost and expense during the term of the this Agreement the following insurance coverage: 1. Commercial General Liability Insurance with limits of: $2,000,000 each occurrence; $3,000,000 general aggregate. Including coverage for products—completed operations and personal injury and advertising liability. This policy shall contain an endorsement adding the City of Mounds View as an additional insured. 2. Business Auto with combined single limit of$1,000,000. 3. Standard Workers Compensation and Employers Liability with limits of: Bodily Injury by Accident$500,000 each accident; Bodily Injury by Disease $500,000 each employee; Bodily Injury by Disease $500,000 policy limit. 4. The City of Mounds View shall be provided with a certificate of insurance for all of the policies maintained pursuant to this Agreement that shall show the described coverage including the City as an additional insured, and the certificate providing 60 days notice to the City of Mounds View in the event of cancellation or non-renewal. 5. All required insurance shall be with a company acceptable to the City. SJR-159255 MU210-35 ARTICLE VI: INDEMNIFICATION; IMMUNITIES A. The YMCA shall defend, indemnify and hold harmless the City, the Mounds View Economic Development Authority (the "EDA"), and their elected officials, officers, employees, agents, and representatives, from and against any and all claims, costs, losses, expenses, demands, actions or causes of action, including reasonable attorneys' fees and other costs and expenses of litigation, which arise or purport to arise out of this Agreement for services or goods provided by the YMCA hereunder. B. Nothing in this Agreement shall be deemed to be a waiver by the City, the EDA or their elected officials of any limitations on or immunities from liability set forth in Minnesota Statutes, Chapter 466 or to which the City, the EDA or their elected officials, officers, employees, agents and representatives are otherwise entitled. ARTICLE VII: TERMINATION A. Termination for Cause. If the YMCA fails to perform any of the terms, conditions, or requirements of this Agreement, the City may give the YMCA thirty (30) days written notice of such failure. After receipt of the written notice, the YMCA will have up to thirty (30) days to correct the problem, except that the City may in any case take immediate steps it determines are necessary to correct the problem in order to protect the health, safety and welfare of the City and the public prior to the end of the thirty (30) day period without affecting the City's right to terminate the YMCA; and, provided further that the YMCA shall pay to the City an amount equal to all City costs and expenses incurred in taking such action, such payment to be made within 30 days of the City's written request to the YMCA for such reimbursement. If the YMCA fails to correct the problem within the thirty (30) day period, the City may terminate the Agreement by giving the YMCA thirty (30) days written notice of such termination. If the City fails to perform any of the terms, conditions or requirements of this Agreement, the YMCA will give the City thirty (30) days written notice of such failure. After receipt of the written notice, the City will have thirty (30) days to correct the problem, except that the YMCA may in any case take immediate steps at the City's expense to correct the problem in order to protect the health, safety and welfare of the City and the public prior to the end of the thirty(30) day period without affecting the YMCA's right to terminate the Agreement. If the City fails to correct the problem within that thirty (30) day period, the YMCA may terminate the Agreement by giving the City thirty (30)days written notice of such termination,- WOULDN'T GIVE THE Y THIS POWER). B. Termination by Mutual Consent After August 31, 2000, if both the YMCA and the City agree that this Agreement is not fulfilling the desired results for both parties,this agreement can be terminated at a mutually agreed upon date at least one hundred and eighty days into the future. Such a date shall be selected to cause the least disruption to the operation of the Center and to recreation programming. The general reasons for terminating the agreement as well as the date of termination of this Agreement must be documented and signed by both parties. SJR-159255 MU210-35 C. Termination by Either Party After August 31,2000, either the YMCA or the City can terminate this agreement by giving at least one hundred and eighty days written notice of its intent to terminate the Agreement. If the YMCA initiates the termination,the date of termination shall be selected to cause the least disruption to the operation of the Center and to recreation programming, but it must be at least one hundred and eighty days but not more than two hundred and seventy five days from the date of written notification. ARTICLE VIII: MISCELLANEOUS PROVISIONS A. Addresses and Notices. Any notice permitted or required to be given under this Agreement must be in writing and shall be deemed to have been given if sent by certified mail, postage prepaid, addressed as follows: To the City: City Clerk-Administrator City of Mounds View 2401 Highway 10 Mounds View, MN 55112 To YMCA: YMCA of Greater St,Saint Paul 476 North Robert Street North St. Paul, MN 55101 Such notice or other communication may be mailed by United States registered or certified mail, return receipt requested, postage prepaid, and may be deposited in a United States Post Office or a depository for the receipt of mail regularly maintained by the post office. Such notices, demands, consents, and reports may also be delivered by hand or by any other receipted method or means permitted by law. For purposes of this Agreement, notice shall be deemed to have been "given" or"delivered" upon personal delivery thereof or forty-eight (48)hours after having been deposited in the United States mails as provided herein. If either party has a change of address, that party must give written notice to the other party of such change as provided herein. Any party failing to provide notice of a change of address shall be deemed to have received any notice sent as provided above. B. Amendment. This Agreement may be modified, renegotiated or otherwise amended at any time only upon the mutual written consent of the YMCA and the City. C. Assignment. This Agreement shall be binding upon the parties hereto and their respective personal representatives, heirs, administrators, executors, successors and assigns. No assignment or attempted assignment of this Agreement of any rights hereunder shall be effective,unless upon the written consent of the YMCA and the City. D. Authority. Each of the undersigned parties warrants it has the full authority to execute this Agreement, the party is in good standing, execution is preempted by each party's SMR-159255 MU210-35 bylaws and authorized officers have signed this Agreement. E. Choice of Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. Any disputes, controversies, or claims arising out of this Agreement shall be heard in the state or federal courts of Minnesota, and all parties to this Agreement waive any objection to the jurisdiction of these courts,whether based upon convenience or otherwise. F. Construction. In the event that any one or more of the provisions of this Agreement, or any application thereof, shall be found to be invalid, illegal or otherwise unenforceable, the validity, legality, and enforceability of the remaining provisions in any application therefor shall not in any way be affected or impaired thereby. G. Entire Agreement. This Agreement, any attached exhibits or addenda or amendments signed by the parties shall constitute the entire Agreement between the City and the YMCA, and supersedes the temporary agreement dated January, 1999 and any other written or oral agreements between the City and the YMCA. This Agreement can only be modified by a writing signed by City and YMCA. H. Execution in Counterparts. This Agreement may be executed in counterparts by the parties hereto. Programming Equipment. The City will provide the YMCA with the equipment and materials on Exhibit . Any program equipment purchased in conjunction with any service provided under this contract by either the City or the YMCA shall become and remain the property of the City. The YMCA agrees to provide reasonable maintenance on all maintain any such equipment. At the end of this contract, any such equipment shall remain with and be owned solely by the City. J. Waiver. No failure by any party to insist upon the strict performance of any covenant, duty, agreement, or condition of this agreement or to exercise any right or remedy consequent upon a breach thereof, shall constitute a waiver of any such breach of any other covenant, agreement, term, or condition, nor does it imply that such covenant, agreement,term or condition may be waived again. K. Work Products. All records, information, materials and other work products, except those noted below, prepared and developed in connection with the provision of services hereunder shall become the exclusive and confidential property of the City. No such products shall be made available to any other individual or organization by the YMCA without the prior written approval of the City. All YMCA personnel records associated with personnel assigned under the terms and conditions of this Agreement shall be and remain the exclusive property of the YMCA provided, however, that the YMCA shall grant the City Clerk-Administrator and/or City Attorney to review such files upon given at least five days notice of their intent to review such files. L. Independent Contractor Status. All services provided by YMCA, YMCA's officers, agents, and employees pursuant to this Agreement shall be provided by such persons as an SJR-159255 MU210-35 employee of the YMCA or as an independent contractor and not as an employee of the City for any purpose, including but not limited to: 1. Income tax withholding; 2. Workers'compensation; 3. Unemployment compensation; 4. FICA taxes; and 5. Eligibility for employee benefits. M. Data Practices Act Compliance. Data provided to YMCA under this Agreement shall be administered in accordance with Minnesota Statutes, Chapter 13, and all data on individuals shall be maintained in accordance with statutory guidelines. N. Maintenance and Repair. With the prior written consent of the City, YMCA is authorized to and shall make or cause to be made at the City's expense, through contracted services or otherwise, all ordinary repairs and replacements reasonably necessary to preserve the Center in its present condition and for the efficient operation operating efficiency of the Center, and all alterations required to comply with governmental regulations or insurance requirements. City shall provide routine cleaning and janitorial se-twise,s for the Center as part of this Agreement. (Y CAN'T LET MECHANICS LIEN ATTACH). O. Contracts, Utilities and Services. City and YMCA shall make contracts required for electricity, gas, telephone, fuel, or water, and such other services as City and YMCA shall deem necessary or prudent for the operation of the Center and the City shall pay such expenses. P. Relationship of YMCA to City. The relationship of the parties to this Agreement shall be that of principal and agent, and all duties to be performed by YMCA under this Agreement shall be for and on behalf of City, in City's name, and for City's benefit. In taking any action under this Agreement, YMCA shall be acting only as an agent for City, and nothing in this Agreement shall be construed as creating a partnership, joint venture, or any other relationship between the parties to this Agreement except that of principal and agent. Neither party shall have the power to bind or obligate the other except as expressly set forth in this Agreement, except that YMCA is authorized to act with such additional authority and power as may be necessary to carry out the spirit and intent of this Agreement. Q. Indemnification Survives Termination. All representations and warranties of the parties contained herein shall survive the termination of this Agreement. R. Force Majeure. Any delays in the performance of any obligation of YMCA under this Agreement shall be excused to the extent that such delays are caused by wars, national emergencies, natural disasters, strikes, labor disputes, utility failures, governmental regulations, riots, adverse weather, and other similar causes not within the control of YMCA, and any time periods required for performance shall be extended accordingly. S. Change in Key Personnel. If there is a personnel change in the YMCA's Chief Executive Officer, Chief Operating Officer, or Northwest Family YMCA Executive Director or in the SJR-159255 MU210-35 City's Clerk-Administrator or Finance Director, a meeting of said individuals shall be held within forty-five (45) days to review the general terms and conditions of this Agreement. In addition, if there is a change in two or more members of the City Council of the City within a three month time period, the City may request a meeting with the aforementioned individuals to review the general terms and conditions of this Agreement. ARTICLE IX: STATE BOND FINANCE PROPERTY COMPLIANCE The following requirements contained within this Agreement are included to satisfy the state bond finance property requirements of Minnesota Statutes Section 16A.695 for Use Agreements to comply with the requirements contained in the G.O. Compliance statutes and pursuant to the Commissioner's Order. A. Entity Status. The City is defined as a public entity pursuant to Minn. Stat. § because it is a Minnesota municipal corporation. B. Center Ownership. The Center is owned solely and completely by the City of Mounds View. C. Agreement Authority. The City has entered into this Agreement with the YMCA pursuant to Minn. Stat. § and the City of Mounds View Municipal Charter and Municipal Code. D. Governmental Program. This Agreement is: (i) being executed and entered into to carry out a Governmental Program,; (ii) such Governmental Program is the City of Mounds View Parks and Recreation Program, including the operation of the Community Center, as well as the parks within the City and general recreational programming within the City; and (iii) such Governmental Program constitutes the Mounds View Parks and Recreation Program and is authorized pursuant to Municipal Charter Section Municipal Code Section , and Minn. Stat. § SJR-159255 MU210-35 E. Governmental Program Oversight. Oversight of the Governmental Program by the City is provided by the requirement, hereby agreed to by the parties that the YMCA provide an initial program evaluation report and annual proposed budgets for the governmental program to be operated at the Center, each such budget to show program revenues and expenses. Such annual budget then must be adopted by the City Council of the City of Mounds View pursuant to the normal budgetary process required for cities in the State of Minnesota. F. Term of the Use Agreement. As the Center consists of land and buildings, the term of this Agreement as provided herein relating to the building and improvements, and including all renewals which are solely at the option the YMCA, is for a period of time which is less then 50% of the useful life of the Center. G. Termination of the Use Agreement. The termination of this Agreement allows for termination by the City in the event of default hereunder by the YMCA. The termination of this Agreement is also allowed by the City in the event that the Governmental Program, the City's parks and recreation program, is terminated or changed. Such termination provisions are contained in Article_ H. Cost of Operation of the Facility ("Center"). The City possesses specific statutory authority pursuant to Minn. Stat. § , the City's Municipal Charter Section and the City's Municipal Code Section , to expend monies to operate and maintain the Center. Receipt of Monies/Compliance With Tax Code. As set forth herein in Section of this Agreement, J. Sale of the Facility. 1. This Agreement is free of any provisions which would require the City to sell the Center for an amount less than the fair market value if it is to be sold to a non- public entity. 2. This Agreement is free of any provisions which would allow the City to sell the facility without the City first determining, by official action, that the Center is no longer usable or needed to carry out the Governmental Program. 3. This Agreement is free of any provisions which would require the City to sell the Center without first obtaining the written consent of the Commissioner of Finance, pursuant to Minn. Stat. § 16A. 695, subd. 3, and the Commissioner's Order. 4. This Agreement is free of any provisions which would cause the matter of distribution of the proceeds of the sale of the Center, which is not provided for nor contemplated in this Agreement, to violate the provisions contained in the G.O. Compliance Bill and the Commissioner's Order (Minn. Stat. § 16A.693, subd. 3 and the Commissioner's Order). SJR-159255 MU210-35 5. This Agreement contains no provisions concerning the sale of the Center or the termination of the Governmental Program. IN WITNESS WHEREOF, City and YMCA have executed this Agreement the day and year first above written. CITY OF MOUNDS VIEW Dated: By: Dan Coughlin Its: Mayor Dated: By: Charles S. Whiting Its: City Clerk-Administrator YMCA OF GREATER ST. SAINT PAUL Dated: By : G. Scott Goyer Its: Senior Vice President SJR-159255 MU210-35 EXHIBIT MOUNDS VIEW PARK AND RECREATION FACILITIES SJR-159255 MU210-35 EXHIBIT DUTIES AND RESPONSIBILITIES OF YMCA 1. General management assistance for the coordination of the Center and the park and recreation programs within the City. - 2. The development of Develop appropriate forms, brochures, and administrative procedures, the preparation of routine correspondence, and all relevant record-keeping functions associated with such matters. 3. Assist with and provide for financial administration as provided in Article above, including bookkeeping and accounting functions, and the preparation of timely financial reports. 4. The YMCA will use its best Use reasonable efforts to develop, market and promote the Center and recreation programming in the City. 5. The YMCA will achieve Maximize quality service goals for the Center by executing marketing strategies, providing quality service to the customers, and employing leadership and managerial skills effectively. 6. Prepare, in conjunction with the City, an annual proposed budget each year for the ensuing year, including estimated rentals, revenues and expenses for the Center and recreation programming. The proposed budget will be provided to the City on or before August 1 of each year and will be updated not more than quarterly as new information becomes available. 7. Assist in developing five-year and ten-year capital improvement plans for the Center and City parks in conformance with City Charter requirements. The improvement plans will include building and equipment maintenance, replacement and/or enhancements. The YMCA shall assist the City in obtaining cost estimates for such improvements, and in preparing an implementation plan for the following year. 8. Operate and manage the Center and parks at scheduled times and provide all recreation programming in accordance with all federal, state, and local laws, regulations, ordinances, and City polices. The YMCA will obtain all permits, licenses, and certifications necessary to ensure compliance with all federal, state and local laws, regulations and ordinances provided, however, that the City will pay for all general permits, licenses and certificates necessary for operating the Center and Park facilities. 9. The YMCA and the City shall establish procedures to handle complaints regarding the operation of the Center, the parks and the providing of recreation services which shall be incorporated into this document as Exhibit . The YMCA shall promptly furnish the City with a copy of all written complaints it receives. The YMCA shall provide quality customer service equal to or exceeding the level of service provided by the YMCA to its customers at the Shoreview Northwest Family YMCA in 199;8. SJR-159255 MU210-35 10. Maintain the following public hours for the Center: September through May Monday through Friday 9 a.m. to 10 p.m. Saturday 8 a.m. to 9 p.m. Sunday 11 a.m. to 6 p.m. June through August Monday through Friday 9 a.m. to 7 p.m. Saturday 9 a.m. to 5 p.m. Sunday closed The YMCA shall monitor and report the Center's usage to the City. The hours of operation can be modified upon mutual agreement between the YMCA and the City. Any such adjustment could result in the modification of the compensation paid by the City to the YMCA. The Center shall be closed for the following holidays: Easter, Thanksgiving and December 25. In addition, there will be reduced hours on Memorial Day, July 4, December 24, and December 31. The Center may be closed for up to four additional mutually agreed upon days in any one year for cleaning, maintenance and/or repairs of items, including, but not limited to resurfacing hardwood floors, cleaning carpets, etc. If City Hall is closed due to inclement weather, the YMCA can elect to close the Center. In addition, the YMCA may request to close the Center due to inclement weather at other times and the City Clerk-Administrator or the Clerk-Administrator's designee shall have the authority to approve or deny any such request. 11. Make ate} every effort to keep the Center and parks open for use at scheduled times by giving the City prompt notice of any maintenance issues and by working with the City to schedule maintenance and repairs at times that will cause the least disruption to the operations at the Community Center and Parks. Monitor Center users to ensure that they do not perform acts that will disrupt current and/or future activities at the Community Center. 12. To establish and enforce a dress code for employees and volunteers. If uniforms are to be a component of the dress code, logos may be included on such informs, provided however, that if YMCA logo is included, a Mounds View City or Community Center logo of similar or larger size and prominence must also be included. 13. Recruit, hire, and train staff, assign and schedule their work, and monitor their performance. 14. Perform background screening for all employe- , volunteers or other individuals that will SJR-159255 MU210-35 This will be covered in the personnel policy addendum 15. Provide the personnel necessary to successfully market, manage and operate the Center and recreation programming. The YMCA shall maintain an adequate level of staffing at all times in order to serve the public. The YMCA agrees to comply with all applicable federal, state and local laws, resolutions, ordinances, rules, regulations and executive orders pertaining to unlawful discrimination on account of race, color, creed, religion, national origin, sex, marital status, age, or status with regard to public assistance and other prohibited classification. 16. Maintain workers' compensation insurance in compliance with all applicable statutes, and professional, automobile, contract, and general liability insurance in amounts and in forms satisfactory to the City as required by Article V of this Agreement. The YMCA agrees to provide the City with a copy of its Certificate of Insurance. The YMCA agrees to provide liability insurance for programs offered. The YMCA agrees to provide property insurance for any YMCA owned equipment that is used while providing services under this contract. 17. Provide supervision to oversee the day to day operations, including, but not limited to, overseeing the marketing, scheduling, reservations for programs, parks, equipment, ballfields, etc., and day to day operating procedures for the Center and recreation programming. 18. At least one YMCA representative shall be at the Center whenever the Center is open to the general public or wherever a program or activity is taking place at the Center. The YMCA will be responsible for ensuring that the building is empty and locked prior to leaving. However, if the Center is closed to the general public, but the Banquet Facility is being used, the YMCA shall not be required to have a representative at the Center and shall be responsible for locking only the gymnasium, offices and meeting rooms; the manager of the Banquet Facility shall be responsible for locking the Center after any such private event. 19. Oversee the custodial service at the Center and inform the City of any problems with the custodial service or any additional custodial services that will be needed. In addition, oversee the consumable supplies for the Center. 20. Oversee vending services for food and drinks at the Center. The YMCA can provide input into vendors and products to be offered, but acknowledges that the City shall have the right to enter into exclusive agreements for some or all of such products. 21. The YMCA shall have the right to offer merchandise such as clothing or athletic supplies for sale. 22. Develop program descriptions and prepare brochures and other promotional materials. SJR-159255 MU210-35 Provide the City with camera ready material for promoting Mounds View programs and facilities for inclusion in four Mounds View Matters brochures. If the City publishes additional brochures, the YMCA may request space for additional promotional materials and will provide such material in a camera ready format. 23. Take reservations for Center and Parks and recreation programs. Schedule events and = facilities, and maintain a master engagement calendar showing all reservations and events. 24. Develop and maintain systems to ensure adequate internal controls and accurate timely reporting of financial information. Such systems are subject to the review and approval of the City. 25. Develop fees, charges and/or deposits for programs, equipment and facilities. Such fees, changes and/or deposits shall be set and modified only after consultation with the City. 26. Collect fees, charges and/or deposits for programs, equipment and facilities. 27. Record all fees, charges, deposits and outlays in a form acceptable to the City. Monthly reports shall be provided to the City within 30 days of month end. The City shall be able to review any YMCA records relating to its activity under the contract. By June 30, the City shall be provided with an audited financial statement for the YMCA for the previous year. If the City requests a separately audited report for the services provided under this contract, it agrees to reimburse the YMCA for such costs. 28. To offer at least the programs listed SJR-159255 MU210-35 MOUNDS VIEW COMMUNITY CENTER,PARKS AND RECREATION MANAGEMENT AGREEMENT THIS AGREEMENT is made, effective as of this day of , 1999 by and between the City of Mounds View, located at 2401 Highway 10, Mounds View, Minnesota 55112 (hereinafter "City") and YMCA OF GREATER . SAINT PAUL, located at 476 D44414 Robert Street North, St. Paul, MN 55101 (hereinafter"YMCA"). WITNESSETH: WHEREAS, the City of Mounds View atad desires to engage the services of the YMCA to assist with the management of the Mounds View Community Center and City recreation programing - - - •• - - • ' - - - by the parties, or this Agreement is terminated as provided herein; and - WHEREAS, the City is the owner of the Mounds View Community Center located at 5394 Edgewood Drive in the City of Mounds View, and various City park and recreation facilities as set forth in Exhibit ; and WHEREAS, the City and YMCA recognize and acknowledge that the Mounds View Community Center includes the Banquet Facility and the Center, as defined herein, in addition to space that is currently being used for community education and day care and agree to cooperate in effectively operating and maintaining the Center for the good of all the users of the Mounds View Community Center; and WHEREAS, the City desires to engage the services of YMCA to assist with the administration of the ongoing operations, administration and development of the parks and recreation programs of City; and WHEREAS, YMCA is experienced in providing recreation services and managing facilities and is willing to enter into this Agreement; and WHEREAS,YMCA has expressed its willingness to provide such services; and WHEREAS, YMCA shall provide adequate personnel and services to assist the City with the administration of the ongoing operations, administration and development of the o Mounds View Community Center and the parks and recreation programs of City. NOW,THEREFORE,the parties hereto do mutually agree as set forth below: ARTICLE I: DEFINITIONS OF TERMS USED IN AGREEMENT A. Center. The gymnasium, lounge/senior center and meeting rooms A and B in the Mounds View Community Center. B. City. The City of Mounds View, a municipal corporation under the laws of Minnesota. SJR-159255 MU210-35 under this Agreement, the term "City" shall also include any other i dividual or entity will provide the YMCA with a written list of any such individual(s) or entities and 'authorized events prior to them being included as a City use. C. Community Center. The entire Mounds View Community Center, including the Center and the Banquet Facility, as well as the kitchen, day care center and community education area. D. Banquet Facility. The banquet hall portion of the Mounds View Community Center. E. Parks. All City parks and park facilities. See Exhibit for a detailed list of City parks. Park facilities include but is not limited to baseball and softball fields, soccer fields, playgrounds and associated playground equipment, picnic shelters, and ice rinks and warming shelters. Excluded is The Bridges Golf Course. F. YMCA. YMCA of Greater Saint Paul, a non-profit corporation under the laws of Minnesota. G. Recreational Programming. H. Building and Equipment Replacement Reserve Fund. ARTICLE II: TERM OF AGREEMENT Due to date,will need to change the underlined bold below; see addition termination option The initial term of this Agreement will be five (5) years, commencing on January 1, 1999 and continuing through December 31, 2003. This Agreement shall automatically renew for two additional five-year terms under the terms and conditions set forth in the Agreement unless either party gives written notice of termination to the other party at least one hundred eighty (180) days before the end of the initial term or any subsequent term of this Agreement; such termination may be made by either party without penalty or cause. ARTICLE III: DUTIES AND RESPONSIBILITIES OF PARTIES A. YMCA'S Duties and Responsibilities. (NOT SURE WHAT THE Y IS DOING) YMCA shall perform professional services within its expertise as shall be requested by City and shall provide ongoing management assistance for City operations, administration, and development of the Center and the park and recreation programs of City. It is understood between the parties that such services specifically may include,but are not be limited to,the duties set forth in Exhibit B. City's Duties and Responsibilities. The City agrees to provide the resources (money, personnel??) to maintain the Center and associated equipment. The City agrees to provide or perform the additional duties set forth in Exhibit SJR-159255 MU210-35 ARTICLE IV: COMPENSATION Needs to be updated&made clearer YMCA will render services to City based upon the following: A. In 1999,the City will pay the YMCA annual compensation of$ . In future years, the amount will be adjusted for inflation. (USE INFLATION ADJUSTMENT LANGUAGE FROM ONE OF MY TOWER LEASES) For such compensation, the YMCA agrees to provide at its sale cost, the goods, the programs and services outlined in this agreement, and to provide including but not limited to the following: 1. The employees necessary to provide the services outlined in this contract, including all costs associated with such employees. In addition to the direct payroll costs, this shall include all Ali costs associated with recruiting, hiring, training and supervising tho such employees necessary to provide the services compensation, unemployment,retirement,vacation pay, sick pay, bonuses, etc.; 2. Office supplies, including but not limited to, copy paper, printer cartridges, stationery, envelopes,postage, computers, etc.; 3. Registration software and annual support; 4. Any advertising other than that provided by the City at its sole dissection; 5. Transportation and mileage; 6. Liability insurance; 7. First aid supplies; 8. Supplies and equipment for recreation programming, such as balls, bats, craft supplies, etc. B. At the end of each calendar year under this Agreement, the annual surplus or deficit from all SHOULD BE DEFINED TERM recreation programming will be calculated as follows: 1. All revenues from Recreation Programming will be calculated. Revenues will include any scholarships provided to participants, and any subsidies provided by the City or the YMCA in order to offer any program. (AREN'T THESE EXPENSES?) 2. All direct expenses of Recreation Programming will be subtracted. Direct expenses will include: a. Salaries and benefits for the staff involved in the programs only portion attributable to programs; and b. Supplies, equipment and other costs directly associated with the program. 3. An administrative charge of 12.5% of all direct expenses will be calculated and subtracted. 4. The remaining balance will be that year's surplus or deficit. In the event of an annual deficit, the City will fund the first $2,000 of any such deficit with the remaining deficit being split equally between the City and the YMCA, provided SJR-159255 MU210-35 that the maximum City liability for any one year shall be$5,000. In the event of an annual surplus, the first $2,000 shall be paid to the City for use at it& sole discretion. The next $10,000 of any surplus shall be paid to the City to assist in funding the Building and Equipment Replacement Reserve Fund. Any additional annual surplus shall be split equally between the City and the YMCA. However, upon mutual consent by the City and the YMCA, any or all of dig such surplus can be used to expand recreation programming or other services in subsequent years. ARTICLE V: PERFORMANCE BOND AND INSURANCE PROVISIONS YMCA?need for performance bond&?whether City's required insurance should be included A. Performance Bond. The City reserves the right to require, in its sole discretion, that YMCA post a bond, certificate of deposit, or other similar instrument approved by the City in an amount as the City reasonably deems to be adequate compensation for damages resulting from YMCA's nonperformance of its obligations under this Agreement. B. Insurance. YMCA will maintain in full force and effect, at its own cost and expense during the term of the this Agreement the following insurance coverage: 1. Commercial General Liability Insurance with limits of: $2,000,000 each occurrence; $3,000,000 general aggregate. Including coverage for products—completed operations and personal injury and advertising liability. This policy shall contain an endorsement adding the City of Mounds View as an additional insured. 2. Business Auto with combined single limit of$1,000,000. 3. Standard Workers Compensation and Employers Liability with limits of: Bodily Injury by Accident$500,000 each accident; Bodily Injury by Disease $500,000 each employee; Bodily Injury by Disease $500,000 policy limit. 4. The City of Mounds View shall be provided with a certificate of insurance for all of the policies maintained pursuant to this Agreement that shall show the described coverage including the City as an additional insured, and the certificate providing 60 days notice to the City of Mounds View in the event of cancellation or non-renewal. 5. All required insurance shall be with a company acceptable to the City. SJR-159255 MU210-35 ARTICLE VI: INDEMNIFICATION; IMMUNITIES A. The YMCA shall defend, indemnify and hold harmless the City, the Mounds View Economic Development Authority (the "EDA"), and their elected officials, officers, employees, agents, and representatives, from and against any and all claims, costs, losses, expenses, demands, actions or causes of action, including reasonable attorneys' fees and other costs and expenses of litigation, which arise or purport to arise out of this Agreement for services or goods provided by the YMCA hereunder. B. Nothing in this Agreement shall be deemed to be a waiver by the City, the EDA or their elected officials of any limitations on or immunities from liability set forth in Minnesota Statutes, Chapter 466 or to which the City, the EDA or their elected officials, officers, employees, agents and representatives are otherwise entitled. ARTICLE VII: TERMINATION A. Termination for Cause. If the YMCA fails to perform any of the terms, conditions, or requirements of this Agreement, the City may give the YMCA thirty (30) days written notice of such failure. After receipt of the written notice, the YMCA will have up to thirty (30) days to correct the problem, except that the City may in any case take immediate steps it determines are necessary to correct the problem in order to protect the health, safety and welfare of the City and the public prior to the end of the thirty (30) day period without affecting the City's right to terminate the YMCA; and, provided further that the YMCA shall pay to the City an amount equal to all City costs and expenses incurred in taking such action, such payment to be made within 30 days of the City's written request to the YMCA for such reimbursement. If the YMCA fails to correct the problem within the thirty (30) day period, the City may terminate the Agreement by giving the YMCA thirty(30) days written notice of such termination. If the City fails to perform any of the terms, conditions or requirements of this Agreement, the YMCA will give the City thirty (30) days written notice of such failure. After receipt of the written notice, the City will have thirty (30) days to correct the problem, except that the YMCA may in any case take immediate steps at the City's expense to correct the problem in order to protect the health, safety and welfare of the City and the public prior to the end of the thirty(30) day period without affecting the YMCA's right to terminate the Agreement. If the City fails to correct the problem within that thirty (30) day period, the YMCA may terminate the Agreement by giving the City thirty (30)days written notice of such termination WOULDN'T--GIVE THE Y THIS POWER). B. Termination by Mutual Consent After August 31, 2000, if both the YMCA and the City agree that this Agreement is not fulfilling the desired results for both parties,this agreement can be terminated at a mutually agreed upon date at least one hundred and eighty days into the future. Such a date shall be selected to cause the least disruption to the operation of the Center and to recreation programming. The general reasons for terminating the agreement as well as the date of termination of this Agreement must be documented and signed by both parties. SJR-159255 MU210-35 C. Termination by Either Party After August 31,2000, either the YMCA or the City can terminate this agreement by giving at least one hundred and eighty days written notice of its intent to terminate the Agreement. If the YMCA initiates the termination, the date of termination shall be selected to cause the least disruption to the operation of the Center and to recreation programming, but it must be at least one hundred and eighty days but not more than two hundred and seventy five days from the date of written notification. ARTICLE VIII: MISCELLANEOUS PROVISIONS A. Addresses and Notices. Any notice permitted or required to be given under this Agreement must be in writing and shall be deemed to have been given if sent by certified mail,postage prepaid, addressed as follows: To the City: City Clerk-Administrator City of Mounds View 2401 Highway 10 Mounds View,MN 55112 To YMCA: YMCA of Greater St,Saint Paul 476 Nocth Robert Street North St. Paul, MN 55101 Such notice or other communication may be mailed by United States registered or certified mail, return receipt requested, postage prepaid, and may be deposited in a United States Post Office or a depository for the receipt of mail regularly maintained by the post office. Such notices,demands, consents, and reports may also be delivered by hand or by any other receipted method or means permitted by law. For purposes of this Agreement, notice shall be deemed to have been "given" or "delivered" upon personal delivery thereof or forty-eight (48)hours after having been deposited in the United States mails as provided herein. If either party has a change of address, that party must give written notice to the other party of such change as provided herein. Any party failing to provide notice of a change of address shall be deemed to have received any notice sent as provided above. B. Amendment. This Agreement may be modified, renegotiated or otherwise amended at any time only upon the mutual written consent of the YMCA and the City. C. Assignment. This Agreement shall be binding upon the parties hereto and their respective _ __ _, _ _ _ _ administrators, executors, successors and assigns. No assignment or attempted assignment of this Agreement of any rights hereunder shall be effective, unless upon the written consent of the YMCA and the City. D. Authority. Each of the undersigned parties warrants it has the full authority to execute this Agreement, the party is in good standing, execution is preempted by each party's SJR-159255 MU210-35 bylaws and authorized officers have signed this Agreement. E. Choice of Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. Any disputes, controversies, or claims arising out of this Agreement shall be heard in the state or federal courts of Minnesota, and all parties to this Agreement waive any objection to the jurisdiction of these courts,whether based upon convenience or otherwise. F. Construction. In the event that any one or more of the provisions of this Agreement, or any application thereof, shall be found to be invalid, illegal or otherwise unenforceable, the validity, legality, and enforceability of the remaining provisions in any application therefor shall not in any way be affected or impaired thereby. G. Entire Agreement. This Agreement, any attached exhibits or addenda or amendments signed by the parties shall constitute the entire Agreement between the City and the YMCA, and supersedes the temporary agreement dated January, 1999 and any other written or oral agreements between the City and the YMCA. This Agreement can only be modified by a writing signed by City and YMCA. H. Execution in Counterparts. This Agreement may be executed in counterparts by the parties hereto. Programming Equipment. The City will provide the YMCA with the equipment and materials on Exhibit . Any program equipment purchased in conjunction with any service provided under this contract by either the City or the YMCA shall become and remain the property of the City. The YMCA agrees to provide reasonable maintenance on all maintain any such equipment. At the end of this contract, any such equipment shall remain with and be owned solely by the City. J. Waiver. No failure by any party to insist upon the strict performance of any covenant, duty, agreement, or condition of this agreement or to exercise any right or remedy consequent upon a breach thereof, shall constitute a waiver of any such breach of any other covenant, agreement, term, or condition, nor does it imply that such covenant, agreement,term or condition may be waived again. K. Work Products. All records, information, materials and other work products, except those noted below, prepared and developed in connection with the provision of services hereunder shall become the exclusive and confidential property of the City. No such products shall be made available to any other individual or organization by the YMCA without the prior written approval of the City. All YMCA personnel records associated with personnel assigned under the terms and conditions of this Agreement shall be and remain the exclusive property of the YMCA provided, however, that the YMCA shall grant the City Clerk-Administrator and/or City Attorney to review such files upon given at least five days notice of their intent to review such files. L. Independent Contractor Status. All services provided by YMCA, YMCA's officers, agents, and employees pursuant to this Agreement shall be provided by such persons as an SJR-159255 MU210-35 a employee of the YMCA or as an independent contractor and not as an employee of the City for any purpose,including but not limited to: 1. Income tax withholding; 2. Workers'compensation; 3. Unemployment compensation; 4. FICA taxes; and 5. Eligibility for employee benefits. M. Data Practices Act Compliance. Data provided to YMCA under this Agreement shall be administered in accordance with Minnesota Statutes, Chapter 13, and all data on individuals shall be maintained in accordance with statutory guidelines. N. Maintenance and Repair. With the prior written consent of the City,YMCA is authorized to and shall make or cause to be made at the City's expense, through contracted services or otherwise, all ordinary repairs and replacements reasonably necessary to preserve the Center in its present condition and for the efficient operation operating efficiency of the Center, and all alterations required to comply with governmental regulations or insurance requirements. City shall provide routine cleaning and janitorial sus for the Center as part of this Agreement. (Y CAN'T LET MECHANICS LIEN ATTACH). O. Contracts, Utilities and Services. City and YMCA shall make contracts required for electricity, gas, telephone, fuel, or water, and such other services as City and YMCA shall deem necessary or prudent for the operation of the Center and the City shall pay such expenses. P. Relationship of YMCA to City. The relationship of the parties to this Agreement shall be that of principal and agent, and all duties to be performed by YMCA under this Agreement shall be for and on behalf of City, in City's name, and for City's benefit. In taking any action under this Agreement, YMCA shall be acting only as an agent for City, and nothing in this Agreement shall be construed as creating a partnership,joint venture, or any other relationship between the parties to this Agreement except that of principal and agent. Neither party shall have the power to bind or obligate the other except as expressly set forth in this Agreement, except that YMCA is authorized to act with such additional authority and power as may be necessary to carry out the spirit and intent of this Agreement. Q. Indemnification Survives Termination. All representations and warranties of the parties contained herein shall survive the termination of this Agreement. R. Force Majeure. Any delays in the performance of any obligation of YMCA under this Agreement shall be excused to the extent that such delays are caused by wars, national emergencies, natural disasters, strikes, labor disputes, utility failures, governmental regulations, riots, adverse weather, and other similar causes not within the control of YMCA,and any time periods required for performance shall be extended accordingly. S. Change in Key Personnel. If there is a personnel change in the YMCA's Chief Executive Officer, Chief Operating Officer, or Northwest Family YMCA Executive Director or in the SJR-159255 MU210-35 City's Clerk-Administrator or Finance Director, a meeting of said individuals shall be held within forty-five (45) days to review the general terms and conditions of this Agreement. In addition, if there is a change in two or more members of the City Council of the City within a three month time period, the City may request a meeting with the aforementioned individuals to review the general terms and conditions of this Agreement. ARTICLE IX: STATE BOND FINANCE PROPERTY COMPLIANCE The following requirements contained within this Agreement are included to satisfy the state bond finance property requirements of Minnesota Statutes Section 16A.695 for Use Agreements to comply with the requirements contained in the G.O. Compliance statutes and pursuant to the Commissioner's Order. A. Entity Status. The City is defined as a public entity pursuant to Minn. Stat. § because it is a Minnesota municipal corporation. B. Center Ownership. The Center is owned solely and completely by the City of Mounds View. C. Agreement Authority. The City has entered into this Agreement with the YMCA pursuant to Minn. Stat. § and the City of Mounds View Municipal Charter and Municipal Code. D. Governmental Program. This Agreement is: (i) being executed and entered into to carry out a Governmental Program,; (ii) such Governmental Program is the City of Mounds View Parks and Recreation Program, including the operation of the Community Center, as well as the parks within the City and general recreational programming within the City; and (iii) such Governmental Program constitutes the Mounds View Parks and Recreation Program and is authorized pursuant to Municipal Charter Section , Municipal Code Section , and Minn. Stat. § SJR-159255 MU210-35 E. Governmental Program Oversight. Oversight of the Governmental Program by the City is provided by the requirement, hereby agreed to by the parties that the YMCA provide an initial program evaluation report and annual proposed budgets for the governmental program to be operated at the Center, each such budget to show program revenues and expenses. Such annual budget then must be adopted by the City Council of the City of Mounds View pursuant to the normal budgetary process required for cities in the State of Minnesota. F. Term of the Use Agreement. As the Center consists of land and buildings, the term of this Agreement as provided herein relating to the building and improvements, and including all renewals which are solely at the option the YMCA, is for a period of time which is less then 50% of the useful life of the Center. G. Termination of the Use Agreement. The termination of this Agreement allows for termination by the City in the event of default hereunder by the YMCA. The termination of this Agreement is also allowed by the City in the event that the Governmental Program, the City's parks and recreation program, is terminated or changed. Such termination provisions are contained in Article H. Cost of Operation of the Facility ("Center"). The City possesses specific statutory authority pursuant to Minn. Stat. § , the City's Municipal Charter Section , and the City's Municipal Code Section , to expend monies to operate and maintain the Center. I. Receipt of Monies/Compliance With Tax Code. As set forth herein in Section of this Agreement, J. Sale of the Facility. 1. This Agreement is free of any provisions which would require the City to sell the Center for an amount less than the fair market value if it is to be sold to a non- public entity. 2. This Agreement is free of any provisions which would allow the City to sell the facility without the City first determining, by official action, that the Center is no longer usable or needed to carry out the Governmental Program. 3. This Agreement is free of any provisions which would require the City to sell the Center without first obtaining the written consent of the Commissioner .of Finance, pursuant to Minn. Stat. § 16A. 695, subd. 3, and the Commissioner's Order. 4. This Agreement is free of any provisions which would cause the matter of distribution of the proceeds of the sale of the Center, which is not provided for nor contemplated in this Agreement, to violate the provisions contained in the G.O. Compliance Bill and the Commissioner's Order (Minn. Stat. § 16A.693, subd. 3 and the Commissioner's Order). SJR-159255 MU210-35 5. This Agreement contains no provisions concerning the sale of the Center or the termination of the Governmental Program. IN WITNESS WHEREOF, City and YMCA have executed this Agreement the day and year first above written. CITY OF MOUNDS VIEW Dated: By: Dan Coughlin Its: Mayor Dated: By: Charles S. Whiting Its: City Clerk-Administrator YMCA OF GREATER SX. SAINT PAUL Dated: By : G. Scott Goyer Its: Senior Vice President SJR-159255 MU210-35 EXHIBIT MOUNDS VIEW PARK AND RECREATION FACILITIES SJR-159255 MU210-35 EXHIBIT DUTIES AND RESPONSIBILITIES OF YMCA 1. General management assistance for the coordination of the Center and the park and recreation programs within the City. 2. The development of Develop appropriate forms, brochures, and administrative procedures, the preparation of routine correspondence, and all relevant record-keeping functions associated with such matters. 3. Assist with and provide for financial administration as provided in Article above, including bookkeeping and accounting functions, and the preparation of timely financial reports. 4. The YMCA will use its best Use reasonable efforts to develop, market and promote the Center and recreation programming in the City. 5. The YMCA will achieve Maximize quality service goals for the Center by executing marketing strategies, providing quality service to the customers, and employing leadership and managerial skills effectively. 6. Prepare, in conjunction with the City, an annual proposed budget each year for the ensuing year, including estimated rentals, revenues and expenses for the Center and recreation programming. The proposed budget will be provided to the City on or before August 1 of each year and will be updated not more than quarterly as new information becomes available. 7. Assist in developing five-year and ten-year capital improvement plans for the Center and City parks in conformance with City Charter requirements. The improvement plans will include building and equipment maintenance, replacement and/or enhancements. The YMCA shall assist the City in obtaining cost estimates for such improvements, and in preparing an implementation plan for the following year. 8. Operate and manage the Center and parks at scheduled times and provide all recreation programming in accordance with all federal, state, and local laws, regulations, ordinances, and City polices. The YMCA will obtain all permits, licenses, and certifications necessary to ensure compliance with all federal, state and local laws, regulations and ordinances provided, however, that the City will pay for all general permits, licenses and certificates necessary for operating the Center and Park facilities. 9. The YMCA and the City shall establish procedures to handle complaints regarding the operation of the Center, the parks and the providing of recreation services which shall be incorporated into this document as Exhibit . The YMCA shall promptly furnish the City with a copy of all written complaints it receives. The YMCA shall provide quality customer service equal to or exceeding the level of service provided by the YMCA to its customers at the Shoreview Northwest Family YMCA in 199;8. SJR-159255 MU210-35 10. Maintain the following public hours for the Center: September through May Monday through Friday 9 a.m. to 10 p.m. Saturday 8 a.m. to 9 p.m. Sunday 11 a.m. to 6 p.m. June through August Monday through Friday 9 a.m. to 7 p.m. Saturday 9 a.m. to 5 p.m. Sunday closed The YMCA shall monitor and report the Center's usage to the City. The hours of operation can be modified upon mutual agreement between the YMCA and the City. Any such adjustment could result in the modification of the compensation paid by the City to the YMCA. The Center shall be closed for the following holidays: Easter, Thanksgiving and December 25. In addition, there will be reduced hours on Memorial Day, July 4, December 24, and December 31. The Center will may be closed for up to four additional mutually agreed upon days in any one year for cleaning, maintenance and/or repairs of items, including, but not limited to resurfacing hardwood floors, cleaning carpets, etc. If City Hall is closed due to inclement weather, the YMCA can elect to close the Center. In addition, the YMCA may request to close the Center due to inclement weather at other times and the City Clerk-Administrator or the Clerk-Administrator's designee shall have the authority to approve or deny any such request. 11. Make way every effort to keep the Center and parks open for use at scheduled times by giving the City prompt notice of any maintenance issues and by working with the City to schedule maintenance and repairs at times that will cause the least disruption to the operations at the Community Center and Parks. Monitor Center users to ensure that they do not perform acts that will disrupt current and/or future activities at the Community Center. 12. To establish and enforce a dress code for employees and volunteers. If uniforms are to be a component of the dress code, logos may be included on such informs, provided however, that if YMCA logo is included, a Mounds View City or Community Center logo of similar or larger size and prominence must also be included. 13. Recruit, hire, and train staff, assign and schedule their work, and monitor their performance. have direct contract with City staff or the public for inappropriate backgrounds. (As an SJR-159255 MU210-35 This will be covered in the personnel policy addendum 15. Provide the personnel necessary to successfully market, manage and operate the Center and recreation programming. The YMCA shall maintain an adequate level of staffing at all times in order to serve the public. The YMCA agrees to comply with all applicable federal, state and local laws, resolutions, ordinances, rules, regulations and executive orders pertaining to unlawful discrimination on account of race, color, creed, religion, national origin, sex, marital status, age, or status with regard to public assistance and other prohibited classification. 16. Maintain workers' compensation insurance in compliance with all applicable statutes, and professional, automobile, contract, and general liability insurance in amounts and in forms satisfactory to the City as required by Article V of this Agreement. The YMCA agrees to provide the City with a copy of its Certificate of Insurance. The YMCA agrees to provide liability insurance for programs offered. The YMCA agrees to provide property insurance for any YMCA owned equipment that is used while providing services under this contract. 17. Provide supervision to oversee the day to day operations, including, but not limited to, overseeing the marketing, scheduling, reservations for programs, parks, equipment, ballfields, etc., and day to day operating procedures for the Center and recreation programming. 18. At least one YMCA representative shall be at the Center whenever the Center is open to the general public or wherever a program or activity is taking place at the Center. The YMCA will be responsible for ensuring that the building is empty and locked prior to leaving. However, if the Center is closed to the general public, but the Banquet Facility is being used, the YMCA shall not be required to have a representative at the Center and shall be responsible for locking only the gymnasium, offices and meeting rooms; the manager of the Banquet Facility shall be responsible for locking the Center after any such private event. 19. Oversee the custodial service at the Center and inform the City of any problems with the custodial service or any additional custodial services that will be needed. In addition, oversee the consumable supplies for the Center. 20. Oversee vending services for food and drinks at the Center. The YMCA can provide input into vendors and products to be offered, but acknowledges that the City shall have the right to enter into exclusive agreements for some or all of such products. 21. The YMCA shall have the right to offer merchandise such as clothing or athletic supplies for sale. 22. Develop program descriptions and prepare brochures and other promotional materials. SJR-159255 MU210-35 Provide the City with camera ready material for promoting Mounds View programs and facilities for inclusion in four Mounds View Matters brochures. If the City publishes additional brochures, the YMCA may request space for additional promotional materials and will provide such material in a camera ready format. 23. Take reservations for Center and Parks and recreation programs. Schedule events and facilities, and maintain a master engagement calendar showing all reservations and events. 24. Develop and maintain systems to ensure adequate internal controls and accurate timely reporting of financial information. Such systems are subject to the review and approval of the City. 25. Develop fees, charges and/or deposits for programs, equipment and facilities. Such fees, changes and/or deposits shall be set and modified only after consultation with the City. 26. Collect fees, charges and/or deposits for programs, equipment and facilities. 27. Record all fees, charges, deposits and outlays in a form acceptable to the City. Monthly reports shall be provided to the City within 30 days of month end. The City shall be able to review any YMCA records relating to its activity under the contract. By June 30, the City shall be provided with an audited financial statement for the YMCA for the previous year. If the City requests a separately audited report for the services provided under this contract, it agrees to reimburse the YMCA for such costs. 28. To offer at least the programs listed on Exhibit The YMCA shall review registrations and associated costs for each program prior to providing the program. If there are fewer than eight (8) registrants or if the program is projected to lose more than $50, the YMCA shall have, upon giving the City notice, the option to cancel the program unless the City is willing to provide the resources to offset the deficit of the program. 29. To develop and maintain contacts with athletic associations, community education, school districts, cities, and other entities to promote programs and to form cooperative ventures for providing recreation programming and services. 30. To provide office space and allow the use of the copier, fax machine and one computer and printer by the Facility Manager. Answer general questions when Facility manger is not available to answer questions about the Facility and provide a schedule of fees and charges, and when possible, show the banquet facility. 31. To shovel the Community Center sidewalk after light snowfalls of less than two inches. Needs to be reviewed. 32. - _ _ _ • - _ • .,• _ ' _ - _ __ . .. . . Use reasonable care in operating the HVAC system to provide a comfortable environment for users of the Center while also insuring the efficiency of the system. SJR-159255 MU210-35 33. To work with seniors and volunteers whenever possible to assist with programming and services. 34. Work with the City and the City of Spring Lake Park in providing lifeguard services at Lakeside Park, such services to include, but not be limited to . Such services shall be limited by budget constraints and weather conditions. 35. Provide any computer(s) and software for use at any location other than that provided by the City and/or for any special applications. Special applications are any application other than word processing, spread sheets, reservations, or email. 36. Provide the following additional services: a. 1,500 hours of ice skating supervision; b. 1,500 hours of summer program leadership and 300 hours of summer playground supervision; c. 500 hours of middle school leaders; and d. Work with and coordinate "school coordinators"with Independent School District No. 621, not to exceed$10,000. (DEFINE MORE CLEARLY) To me moved to the compensation section and better defined. 37. Work with community groups, businesses and individuals to explain the mission of the Center, the parks and recreation programming and to solicit contributions to assist in achieving the mission, to assist in achieving the mission, and to assist disadvantaged individuals. 38. Affirms, that to the best of its knowledge, its involvement in this Agreement does not result in a conflict of interest with any party or entity, which may be affected by the terms of this Agreement. The YMCA agrees that, should any conflict or potential conflict of interest become known, the YMCA will immediately notify the City of the conflict or potential conflict. 39. Provide the City Clerk-Administrator with an opportunity for input into the hiring and/or assignment of full time personnel to be assigned to fulfill the terms and conditions of this Agreement. 40. Meet not more than monthly with the City's Park& Recreation Commission. SJR-159255 MU210-35 EXHIBIT DUTIES AND RESPONSIBILITIES OF CITY 1. Maintain property insurance in accordance with limits established by Minnesota statutes. 2. Establish an advisory executive committee to make recommendations to the City Council regarding operations at the Center. The committee will be comprised of the Northwest Family YMCA Executive Director and the Center's Manager, a representative from the Park and Recreation Commission, the City Clerk-Administrator, City Finance Director and two City Council members or appointees and will meet semi-annually. 3. Establish a Community Center committee to review operations at the entire Community Center. The committee will be comprised of the executive committee noted above plus the Banquet Facility Manager, a Children's Home Society representative and a representative from Community Education. Said committee will meet semi-annually. 4. To permit the YMCA to use specialized equipment owned by the City for special projects at the Center, provided that such equipment is available and the YMCA provides adequate advanced notice for scheduling of such equipment. In addition, the City shall provide the following equipment at the Center for day to day use by the YMCA: a. Desks or work surfaces from which to conduct day to day operations for the Program Manager and two programmers, in addition to a public counter; b. Phone lines, voice mail and equipment for at least six voice mailboxes; c. Photocopy and fax machine; d. At least three networked computers and one networked printer; and e. At least one Internet connection. 5. Adopt an annual budget and a five-year and ten-year capital improvement plan for the Center on or before December 315` for the subsequent year. In addition, work with the YMCA to develop and implement the capital improvement plan for the subsequent year. 6. The City shall budget and provide resources for the following: a. Printing and distributing of at least four brochures to be included with the City's newsletter; b. Provide custodial services (define level of service $35,000) and cleaning supplies, light bulbs,trash bags, soap,paper towels, and toilet paper for restrooms; c. Provide and clean rugs for entry ways; d. Clean all carpet twice a year; e. Maintain HVAC systems; f. Resurface gym floor not more than once per year; g. Provide and pay for phone service, including up to $40 of business long distance phone calls per month; h. Provide all utility services including electricity, natural gas, water, wastewater, street lighting, surface water, recycling, and garbage hauling; i. Maintain City-owned office equipment including computers, printers, copier(s), SJR-159255 MU210-35 and fax machines; j. Provide outside maintenance of grounds and parking lot, including snow plowing of parking lot and sidewalks. Sidewalks will be shoveled by the City when accumulated snowfall in a 12 hour period is greater than two inches; k. Provide software for computers including operating systems, word processing software for three computers, spread sheet software for two computers, and publishing software for one computer; 1. Maintenance of other Park facilities including building and ground maintenance, maintenance of softball fields and fences, hockey rinks, etc.; m. Provide at least one public telephone; n. Provide porta-potties at selected parks during non-winter months; and o. Chalk softball and other fields. 7. Acknowledges that by entering into this contract the YMCA is allocating resources to the City and has a stake to insure that the recreation programming and the Center succeed. The City further recognizes that the YMCA deserves recognition for its commitment to the City and as such, the YMCA will be permitted to place it logo, along with the City's logo, on stationery for the Community Center and in brochures for recreation programming. 8. Provide custodial services and maintenance for the Center and related equipment. Already covered 9. Upon receiving notice from the YMCA, the City will repair HVAC, plumbing, or other mechanical problems as soon as practicable in the manner that will cause the least disruption to the Center and the entire Community Center. 10. The City agrees to fund a building and equipment replacement fund. Funding shall be by an annual City appropriation. The City agrees that the minimum appropriation shall be $20,000 in 1999 and be adjusted annually by the CPI. The building and equipment funds shall be available for replacement of carpeting, HVAC systems, roof replacement, and other similar items. 11. Manage, maintain, and coordinate all services and functions associated with the City's forestry program. SJR-159255 MU210-35 EXHIBIT COMPLAINT HANDLING PROCEDURES [Duties and Responsibilities of YMCA--#9] SJR-159255 MU210-35 EXHIBIT PERSONNEL ISSUES [Duties and Responsibilities of YMCA--#14] SJR-159255 MU210-35 EXHIBIT PROGRAMIVIING EQUIPMENT SJR-159255 MU210-35 EXHIBIT MINIMUM PROGRAMS TO BE OFFERED Youth: Adult: After School Programs Broomball Boys Basketball Open Gym Butterflies are Free Gadabouts Mites Basketball Co-Rec Volleyball League MVAA Fitness Workout Rollerblade Hockey Racquetball Instruction Special Projects Dance Girls Basketball Clinic Men's Softball Gymnastics Women's Softball Dance Co-Rec Softball K-Powers& Grasshoppers Men's over 35 Softball Halloween Party Senior Girls Softball Winter Party Senior Boys Softball Clinics Fall Softball School's Out/Vac. Activity Senior Citizen Programs Skating Lessons Cross-Country Ski Lessons Boot Hockey 3-Man Basketball Animal Control 4-Man Basketball Soccer Wellness Classes Jr. Boys Softball Volunteer Recognition Jr. Girls Softball Special Interest Class Excursions Summer Play Centers T-Ball Tennis Instructions Youth Softball 8-Ball Babysitting Classes Superball Tumbling for Tots Karate Track Preschool Programs SJR-159255 MU210-35 General: Tree Sales Family Excursions Holiday Boutique - TFirst Aid/CPR Instruction Open Basketball Life Be In It Snowmobiling Picnic Kit Rental Park Site Rental Concerns Rink Activities Swimming: Adult Beginner Swimming Advanced Beginner Swimming Intermediate Swimming Beginner I Swimming Lap Swims/Individual Swim Pass Open Swim/Family Swim Passes Waders Advanced Lifesaving Swimmers Private Lessons Senior Swim Beginner II Swimming Waterbabies Beginner III Swimming Semi-private Lessons Swim Rec./Athletic Supervisor SJR-159255 MU210-35 Resolution No. 5239 CITY OF MOUNDS VIEW County of Ramsey State of Minnesota A-resolution setting forth a tentative timetable for preparing and adopting the 1999 budget and long term financial plan. WFFREAS, the City's Charter and Code, as well as State Statutes set forth various requirements for considering and adopting the City's budget; and WHEREAS, Section 7.04 of the City Charter requires the City Clerk-Administrator to submit to the Council a budget calendar to be established by resolution. • NOW, THEREFORE, BE IT RESOLVED, by the Council of the City of Mounds View, Minnesota that the following budget and long term financial plan calendar is hereby adopted: May 26 City Council adopts budget calendar. By June 22 Departments submit proposed 1999 budget& LTFP to Finance. June 22 -July 10 Finance Dept. and City Administrator review budgets & LTFP. July 13 - 31 Dept. heads review budgets&LTFP. August 3 - Sept 14 Council review of budget and L 1r'P: August 3rd work session August 10th 4:30 to 6:30 p.m. August 31st special work session September 8 work session September 14 Council adopts preliminary budget and maximum levy. Sept 14- Oct 5 Additional Council meetings as needed. October 30 City distributes budget newsletter. November 2 Council holds informational meeting on the 1999 budget&L i k P. November 30 to Truth in taxation hearing and adoption of 1999 budget,tax levy and December 20 L i FP (dates dependent upon County& School District selected dates). Adopted this 26th day of May, 1998. Duane McCarty, Mayor ATTEST: Charles Whiting, City Clerk-Administrator (SEAL) Item No. Meeting Date: 4-5-99 Staff Report No. Type of Business: WK WK: Work Session;PH:Public Hearing; CA: Consent Agenda;EDAB:EDA Business Mounds View Economic Development Authority Staff Report To: Mounds View Economic Development Authority From: Steve Dorgan, Housing Inspector Item Title/Subject: Housing Replacement Program Proposal to Demolish 8300 Fairchild Ave. Date of Report: March 31, 1999 SUMMARY Staff has recently received a letter from Sandi and Christopher Pidel,owners of 8300 Fairchild Avenue,requesting participation in the Housing Replacement Program(HRP). The Pidels have requested Option#2 of the HRP. Option#2 provides for funding by the EDA for the demolition of an existing home for the purposes of constructing a new home on the same lot. The current owner would maintain ownership of the property. The subject site is located just north of Arden Avenue adjacent to Groveland Park(see location map Exhibit A). The owner currently occupies the proposed property. Staff has completed an inspection of the proposed property to verify the eligibility as outlined in the HRP policy. Item G of the HRP policy states: G. Property Eligibility Criteria Program Staff shall evaluate each property for which an application is received to determine its eligibility for the Program based on the criteria in this section. Program Staff shall prepare property fact sheets for each property for which owners have expressed an interest in participating in the Program,and shall make a drive by inspection. Properties will be evaluated based on the following criteria outlined below. To be eligible for participation,the house on the property must have one of the characteristics noted in 1,2,3 or 4 below. Asterisks indicate the criteria that are met. *1. Substandard as to condition,property value,size or usage. *2. Obsolete and having a faulty design for block and area in which it is located. 3. Deterioration which has caused blight to other adjoining properties. 4. Detrimental to the safety or health of abutting properties in the block. If it is determined that the property is eligible for participation based on the condition of the house,it must also meet the following criteria as outlined in 5-8 below. *5. A geographic mix of properties is achieved. *6. The site can be developed with a single family home within city code requirements, including zoning and conformance with the Comprehensive Plan. The property may be considered if a variance can be obtained(see Section I,Item 2.). *7. The property must be owner-occupied or vacant before the owner makes application to the Program. Non-homesteaded vacant property will be considered for acquisition. Tenant- occupied properties will be considered by the EDA on a case-by-case basis. 8. Prior to approval by the EDA for participation in the Program,properties over 50 years old must be evaluated for historical significance. This will be accomplished by forwarding general property information and a property photo to the Minnesota Historical Society for review. The EDA will not enter into a purchase agreement or award funding for demolition on a property which qualifies for the National Registry of Historical Structures. Staff has determined that the subject property meets the characteristics as noted in items 1 and 2. Because the CC Workshop— Staff Report 8300 Fairchild Ave. —HRP April 5, 1999 property meets at least 1 of the 4 outlined criteria;it must also meet item numbers 5-8 of the policy to be considered for purchase by the EDA. As noted,the proposed property meets the criteria in item numbers 5,6 and 7 . The city has not yet proceeded with the requirements of item number 8,which requires a historical significance evaluation. This will be completed if the EDA requests staff to proceed with acquiring the property. DEMOLITION Demolition costs typically range from$5,000 to$10,000 depending on the size of the home,amount of hazardous material needing abatement,well sealing and tank abatement. Staff first sends out bid requests for hazardous materials assessment for the property and select a contractor for the required work. After completion of the hazardous materials assessment,staff then sends out bid requests to area demolition contractors to remove the structure(s)and perform the hazardous materials abatement. The EDA would then enter into agreements with the selected contractors for the required work. DISCUSSION The existing home has a single car attached garage and was originally built with an orientation toward Groveland Road. The back half of the lot was sold to the City for Groveland Park. The owner has subsequently built a two-car detached garage oriented toward Fairchild Avenue. The detached garage is in good condition and the owners have expressed interest in keeping the garage and relocating the structure within the lot to provide a better layout with the new home as well as complying with City Code setback requirements. The Pidels are also requesting that they be able to build the new home prior to the demolition of the existing home. A development agreement may be executed between the EDA and the Pidels ensuring that within a given period of time(i.e. 6 months)a second home may be built on the lot provided the existing home is demolished immediately following the reception of a certificate of occupancy on the new home. Therefore the owners would not be required to fmd alternative housing during the construction of their new home. Funds for demolition would not be made available to the owners until the building is cleared. The Pidels indicate they have explored options for remodeling their home by expanding and updating their existing space. They contend the estimates they have received to remodel are very high and makes remodeling cost prohibitive. The Pidels believe that demolishing their existing home and building new would be the best scenario for both them and the City. ACTION TO BE CONSIDERED 1) Approve the request for participation in the Housing Replacement Program for the property located at 8300 Fairchild Avenue and direct staff to draft a redevelopment agreement and prepare a resolution authorizing funding for the demolition of the single family home for the purposes of constructing a new home by the current owner based on approved design criteria. 2) Deny the request for participation in the Housing Replacement Program,which would authorize funding for demolition of the existing home and direct staff to draft a resolution denying the request. Steve Dorgan, ing Inspector 612/717-4023 email steved@rcmnet.org Attachments: 1) Location Map—8300 Fairchild Avenue 2) Letter of Request—Sandi and Christopher Pidel ,F% i iii wslc IN r 8300 Fairchild Ave. : z. 1 :,.,?..,...6,4 vgl EA /:w , 0 • ...,,, ;, a, _ d .C---44'"':„.,,,........,2•.....„J/. !s' oO `e.Iv i 4w. .— 04, UN --- RS • /i Jis tii..... m:,.::: : moi.;;:. al :,.;:.: as .:, . :� "l"'i :if ......7,,,A., ,.. ,...„,„..,., „,..„. • oca ion a 8300 F •archild Ave . EXHIBIT A Dear Mr. Dorgan, Thank you for meeting with me last week. This letter is to inform you that we would like to participate in option two (demolition only) of the Housing Replacement Program. We have met with a builder in the area to discuss home plans. The replacement home will be approximately 2,000 square feet. It will contain 3 bedrooms, 2 1/2 baths and at least a 2 car garage. I can provide drawings as soon as they are completed. We would like to start construction late this spring with completion by late summer. We understand that demolition must take place as soon as possible after occupancy of the new structure. Please let us know what our next step is to obtain approval, and if you need any more information . Sincerely, Sandi and Christopher Pidel Item No. Meeting Date: 4-5-99 Staff Report No. Type of Business: WK WK.•Work Session;PH:Public Hearing; CA:Consent Agenda;EDAB:EDA Business Mounds View Economic Development Authority Staff Report To: Honorable Mayor, City Council Members From: Steve Dorgan, Housing Inspector Item Title/Subject: 2091 Hillview Dr. —Proposed Redevelopment Date of Report: March 31, 1999 SUMMARY At the City Council Workshop meeting on March 1, 1999 the council reviewed a redevelopment proposal from Reentry Services for the abandoned and condemned four-plex property located at 2091 Hillview Road. The council directed staff to address the following questions related to the redevelopment proposal: 1) Is assistance funding available through Ramsey County or the State ofMinnesota to offset the loss of property taxes to the city for promoting development of nonprofit agencies within the city? Staff has contacted representatives at both the State and County to verify whether funding assistance is available to offset tax loss from a nonprofit agency development. According to both the County and the State,no direct funds are available for this purpose. 2) What is the annual property tax loss to the city if a nonprofit agency were to own the subject site? See the attached projected property tax table for the subject site. 3) Would Ramsey County be able to purchase the property from HUD and resell it to Reentry Services or another nonprofit agency without the city's consent? Ramsey County would be able to purchase any property within the city and resell it to a nonprofit without the city's consent, unless approval or review by the city council was required by City Code. The County deferred buying the property from HUD for resale to Reentry Services for the purpose of having a review at the local level. Reentry Services may also purchase the subject site directly from HUD at an auction and operate as a nonprofit without the city's consent as long as no review is required by the city council. 4) What are the public hearing requirements for the EDA to purchase and resell the subject site for redevelopment purposes? According to Minnesota State Statute—A public hearing shall be held for the sale of property by the Economic Development Authority. 5) What is the cost to pay for the abatement? Staff has not obtained bids for the abatement of code violations for the building. However, CC Memo—2091 Hillview Road April 5, 1999 Page 2 contractors bidding on the redevelopment proposed by Reentry Services estimate costs for complete rehabilitation of the property to be$150,000+. Of which, abatement of code violations may only range from$30,000-40,000. 6) What other alternatives are available for acquisition and/or rehabilitation by the city for resale— similar to the Housing Replacement Program? a) The city may choose to purchase the building from HUD for$80,100 and sell the property through a request for proposal(RFP) on the open market requiring specific improvements be made to the building. b) The city may purchase and demolish the building and market the site for redevelopment. 7) What options are available to keep the property on the tax role? a) The city may choose to hire a contractor to perform the abatement requirements to meet minimum code compliance. By abating the code violations on the property,the city will be required to administrate and pay for the abatement procedure. HUD would then reimburse the city for incurred expenses after the property is sold. At the EDA meeting on September 8, 1998, the council directed staff to arrange for the abatement of the building pending no other development proposals. b) The city may purchase the property from HUD for the purposes of reselling the property(by RFP on open market)in the current condition contingent upon the buyer bringing the property into compliance with City Code requirements. The city may drop the abatement order on the property and allow HUD to sell the property on the open market. HUD has been unable to sell the property at auction because of the existing abatement order by the city. If the city chose to remove the abatement order,the property would be sold with no guarantee of being brought into compliance with City Code requirements and the long expensive abatement process would begin once again. DISCUSSION Reentry Services is proposing to acquire the property from the city with the intention of completely rehabilitating the building to provide transitional housing. The proposed redevelopment project has secured financial backing from two separate funding sources that would ensure a complete rehabilitation project. For Reentry Services to obtain the property, the City would need to purchase the property from HUD (at a 10% discount) and resell the property to Reentry Services. The purchase and resale would occur simultaneously at one closing. All closing costs are proposed to be paid by Reentry Services so there would be no costs incurred by the City. Essentially, formal approval by the EDA or City Council would be required to purchase the property from HUD for resale to Reentry Services and create a development/purchase agreement between the City and Re- Entry to ensure noncompliant code items are corrected as part of the redevelopment process. Staff has recently received requests from market rate developers to purchase the property for redevelopment(see attached letter from G/R Developers). The city may choose to facilitate a market rate redevelopment of the subject site. By acquiring the property from HUD for the purposes of reselling the property,the city may set the redevelopment criteria as part of the sale to a market rate developer. Since the abatement order was approved in June of 1997, minimal progress has been made to rehabilitate CC Memo—2091 Hillview Road April 5, 1999 Page 3 or redevelop the subject property. Several options are currently available for redevelopment of the subject site. The city may choose to take a proactive or passive approach to the redevelopment of the property. Intervention in the redevelopment of the subject site by the city(i.e. purchase from HUD for resale to a private party)would provide more control over the rehabilitation performed on the subject site. However, the city may also choose to take a more passive approach by releasing the abatement order on the property and allow HUD to sell the property at auction. The city would have limited control over the property under this option. Other options may include abatement of code violations by the city or demolition of the structure. If the City performs an abatement on the property as requested by HUD, only corrections to obtain code compliance may be made. HUD did not request demolition of the building. If the city chose to acquire and demolish the building,the vacant lot may be difficult to market for redevelopment. ACTION TO BE CONSIDERED Direct staff to arrange for one of the following options available to the city: 1) Arrange for the abatement of the building to meet minimum code requirements so that HUD may auction the property to the open market. 2) Release the abatement order on the property to allow HUD to arrange for the auction of the property. 3) Acquire the property from HUD for the purposes of resale to Reentry Services for complete rehabilitation. 4) Acquire the property from HUD for the purpose of reselling the property by RFP on the open market for rehabilitation. 5) Acquire the property from HUD, demolish the structure and resell the vacant property for redevelopment. Steve Dorgan, g Inspector 717-4023 email: steved@rcmnet.org Attachments: 1) Location Map 2) Property Tax Table—Past and Projected 3) Letter from Reentry Services—Redevelopment Proposal 4) Letter from G/R Developers—Redevelopment Proposal MOM .:',Aga.................... J. . IMMg ................. ,i::ss, or ":7': :vii" - .. � El \ t "].11 :.::.. , ...........::...: mow ; ,, ,ciari, ,:»:::may. 7i ii m —2..•-•:-,,.. i fl . liiilu� II di; IS'' $ ..:-...,,v O. 01 i.. : .:::::::: : I, ::::::m: ' 2091 Hillview Road 1%. . a El-'11-11 ww m r; , ,: ii::. .:.is ..... el .. ........= -,;,:,A................3.-t. I in® -xis ........_:::........... :.:--.n-. ...........:-crass:.. /JJ: ..,: i:f[[[[EE ';i:;t•�s s[:.::.[[[[[P[�%ld::: ::..''i,/...._. n/j, N. Hillview Road [ f:ii: .»ri<. ..... ii y J;, ,it<....:, ::S,o..i, n4:/iiil v iY :'::f:. .......w,'$`, ,,� . E....... Fa....... .::.::' Wit•/ :::Sf{%fif.>s:::::�[eei»iiv.......rz 0 ..:: ::".. ....::�...... �::: .. A:�fGJ ":':i yi:. ., Ea 1 m s":i:". :::::............. ,, , ..... ocait.ion a 2091 H • li .view Roa 142 OND .M- IO N 10 Of O CNO, re t N ONO CO N N aro v. 03 10 4 Oof 492 a a a avaali _ o 4, 49 Tsril 46 p� pp H 1- M l n ti N N 8 O 8 1 1 IA N In IA IA IA UI 1A In IA dj n r r r h r ►S) r r r w O V' IA N f0 10 CO cd aal OD 01 C co co f0 CO IO CO f0 CO CO {G C.) zit a` Sn K to li..- ISISITIM Ill ENIoo EE E E E E E E E EE O L L L L .0 C O L L LO z O 0 L L O 0 0 L L _ _ = OO CC ° C C C C C C C CC zz zz ZzzzzZZZZz Cl. Z 0 C.) 15 11 O > O1 O o v r .- e- In IO 01 Y. _ 4: 4444 V' d' EL Il e. i $ a c Ti Z 03 0 ~ o ° � � co� acaMar., � r., II d, v, vgi44, 43434gf a .... a r- 0 = 1i N R 0. 010q0000. V. 4000• OCO02440IODgc03COOCOCOO Vo t o ° 0 0 0 CD W 141 "r • • • a` e 0 To co .g co § § § § § § § § § § 888A .5t PiFX • x g o o p Mr NNNNNNMAM M a ?I § 8 § gl § g1g $ sss ss 2-25-1999 10: 12AM FROM REENTRY SERVICES INC 651 222 8844 P. 2 R © REENTRY SERVICES, INC. >EU4WA STRAT1O WATC Rp' REEIITRT AWL=R REENTRY WEST REENTRY METRO 567 ONEIOp ST. 847 W.7TH ST 847 W.7TH 57. 5S2 ASHLAND AVE. 955 W.7TH ST 444 W.LYNNHURST AvE. ST PAUL MN 55102-3842 ST.PAUL,MN 55102.3601 ST.PAUL MN 55102.3601 ST PAUL MN 55102.2009 ST.PAUL,MN 55102-3601 ST PAUL,MN 55104.3407 (651)znJAea (651)2924MOS ($51)292-e406 ($51)292.1466 (651)2274291 (651)644-1951 PAX 222-8844 FAX 292-9033 FAX 292-9033 FAX 292-9556 FAX 292-9510 FAX 644.5745 • February 24, 1999 Steve Dorgan City of Mounds View 2401 Highway 10 Mounds View, MN 55112 Dear Steve, • Reentry Services, Inc. is offering to purchase the HUD owned property located at 2091 Hillview Road, in Mounds View. Reentry will be completely renovating the building to "as new" condition. The property to be purchased will be owned by Reentry Services, Inc. a 501 C 3 non-profit agency located in St. Paul, Minnesota. Reentry Services owns and manages nine properties including three low-income scattered site housing units consisting of a duplex and 4-plex in North St. Paul, and a duplex in Mounds View. The Director of Support Services and a staff of 4 full-time maintenance workers are responsible for implementation and day to day property management of all Reentry property. The building will be used for supportive transitional housing. These are usually single parent families from the Ramsey County Shelter system. East Metro Women's Council is the service provider and will be responsible for all income verification and documentation. They will provide the self-sufficiency program for up to two years for each family plus a one year follow up upon completion of the program. A Wilder Foundation grant from HUD will assist the families with rental assistance. Reentry Services has a firm commitment from the Family Housing Fund of $80,000. Reentry Services is in the process of becoming a C.H.O.D.O. and obtaining necessary funding from Ramsey County to accomplish the renovation. Sincerely, Paul Obrestad Reentry Services, Inc. wwr.esnnyseevIces.org G/ R r F--)1 „), )1 1111 MAR 3 i 1999 [J i! March 29, 1999 By Mounds View City Steve Dorgan, Housing Inspector 2401 Highway 10 Mounds View, MN 55112 Regarding property: 2091 Hillview Road, Mounds View Dear Steve; We plan to purchase the above property and remedy the abatement objections outlined. All the buildings and duplexes we own, have been rehabbed with codes being surpassed. The occupancy records are excellent with many of the tenants being multi-year residents. Our equity and financial position is very strong with a credit rating of over 750. We will financially perform in all aspects of the purchase and conclude the construction phase in a timely manner. The building at this time is an eyesore to the community which we plan on remedying. We shall be an integral player to this successful conclusion. As we would be taxed on this property the City of Mounds View would benefit through the increased tax base and by our expertise in management. We look forward to meeting the city council on April 5, 1999 to further present our plans. Sincerely, Deborah D. Gillis and Robert W. Rausch 420140th Av. N. Robbinsdale, MN 55422 O (612) 504-9234/ P (651) 647-8178 Fax (612) 504-0567 .;. •.;. Item No. 5 Staff Report No. Meeting Date: April 5, 1999 Type of Business: W.K. WK: Work Session;PH:Public Hearing; CA:Consent Agenda; CB:Council Business City of Mounds View Staff Report To: Honorable Mayor and City Council From: Michael Ulrich, Director of Public Works Item Title/Subject: Wetland Seminar, Woodcrest Mitigation, Edgewood Parcel Discussion Date of Report: March 30, 1999 Staff from SEH will be in attendance to present a mini wetland seminar, (15 - 20 minutes) to explain the current rules regarding the Wetland Conservation Act. Staff met last week to review the possibility of mitigating the Community Center wetland on the Edgewood Drive parcel instead of at Woodcrest. It was determined that the new site does not provide enough acreage to accommodate the required mitigation. Staff will also seek direction from Council regarding which side of the newly aligned Edgewood Drive,the water quality pond should be constructed. A decision at this time is critical to possibly avoid any change orders, design delays and additional MnDot review. ,7(,,o,?/_________ Michael Ulrich, Director of Public Works Larry&Vicki Rothstein 5086 Rainbow Lane Mounds View,MN 55112 612-785-2307 3/30/99 To Chuck Whiting,Mounds View City Administrator Dan Coughlin,Mayor City Council Members Dear Mr. Whiting,Mr. Mayor, and members of the City Council: As I sit and watch the replay of the March 22nd council meeting, I am pleased to hear that something is finally going to be done about Woodcrest park. I have been a resident of Mounds View for 12 years and Woodcrest has been our local park. Both of my children(ages 8 & 12) have enjoyed this park very much. It has never been a fancy park,but it does provide the open space necessary for children to run without worry of running into the streets. For years this park has suffered from neglect and I am happy to see that it is now getting some attention, however negative that may be. Like I have stated,this park has been our family park. There are signs in the park that this park has been important to other families also. A tree near the building was planted in memory of the family destroyed by the pipeline explosion. There is a plaque to remind visitors of this. There is another plaque in the southwest corner near the intersection of Woodcrest and Silver Lake Road dedicating the hockey rink to the memory of two local children. Obviously,this park has meant a great deal to more than just my family. I had inquired with Mary Saarion several times through the years as to what could be done to improve this park. I got a lot of words, but never any action. I know Mary tried but was always timed away because of the poor soil conditions and excessive cost. However, I think she may have been trying to do too much for the park. I have resigned myself to the fact that there will never be a baseball field or soccer field, but there can be much more to park than just sports. Over the last several years several scouting troops have tried to make this park their home. From 1994 to 1996 my wife and her Girl Scout troop officially adopted this park and cleaned it at each meeting of the troop. Last year my son's Cub Scout den had all their regular meeting at this park. The boys definitely preferred this park over the "Barney Park" (Random Park)because of more space and larger playground equipment. Another den of Cub Scouts made bird houses and placed them around the park near the water area. This is a great park for a nature search, and I know many scouts that would agree. It is unfortunate that the city has let the building become unusable. So, where do we go from here? I agree that the park has wetland areas, and creating a nice pond for the ducks and geese is a good idea. However, let's not over do it! Mr. Ulrich's suggestion of creating a bank of wetlands is a little extreme. Much of the park is not wetland and is not "trying to become a wetland." It would be usable for a playground, a park building(preferred) or picnic shelter, and some bike paths. I would like to see a challenging "dirt bike" course for the local boys to ride on so they wouldn't have to jump curbs or make jumps on private property. I have seen a small course like this in the city of Maple Plain. Also, what is the possibility of adding land to this park? There is land available to the north. This could make it more accessible to children from the northern side of the park or possibly make it more connected to Silver View park. There must be some park dedication money left over from the theater project? In conclusion,yes, some of this park needs to be returned to wetland, but don't waste the park land on the south side of town. This park has been part of the community for years, and will be for years to come. Give us something we can live with. Sincerely, La Rothstein iic i Roth_e n Item No. `7 Staff Report No. Meeting Date: April 5, 1999 Type of Business: W.K. WK: Work Session;PH:Public Hearing; CA:Consent Agenda;CB: Council Business City of Mounds View Staff Report To: Honorable Mayor and City Council From: Michael Ulrich, Director of Public Works Item Title/Subject: Discussion of Wetland Projects with Consultants Date of Report: March 30, 1999 John Hammerschimdt and myself have been dealing with a couple of wetland specialist on separate, but possibly related issues. Differing opinions or interpretations of the Wetland Conservation Act seem to be evolving. In light of a few Council members have expressed an • interest in this topic, a get together with both consultants and any Council members that wish to attend, has been scheduled to resolve or clarify these issues. Please feel free to attend,the meeting is scheduled for 5:30 pm on April 5, 1999. Although I am not able to attend, the meeting could provide some insight for the update of the Surface Water Management Plan. The meeting has been posted. Michael Ulrich, Director of Public Works WETLAND CONSERVATION ACT PROGRAM OVERVIEW INTRODUCTION/USE OF THE MANUAL Welcome to the Administrative Manual for the Wetland Conservation Act (WCA). Whether you are working with the WCA for the first time, or are a grizzled veteran of WCA administration, we hope that you will find the format and information within this manual helpful and of use to you. Obviously, all applicable laws and rules are the controlling documents for WCA administration. This manual is not intended to provide legal advice, and users of this manual should consult their own legal counsel as and to the extent necessary. This manual has been set up to generally follow the natural progression of activities typically encountered under the WCA. The manual has been separated into three sections: WCA Administration Section, Resource Reference Section, and Technical Reference Section. An index has been provided for each part to ease finding specific items. Wide margins have also been provided in the narrative portions to allow space for notes and references. In addition, you will note that blank and sample forms have been:incorporated with the information for each part, rather than grouped in one"Forms",section;; These forms, along with other miscellaneous information helpful to administration of that:part of the WCA, are found in the appendix to each part of the manual(look for the blue;sheets)..: Regular updates will be made as necessary to keep the Administrative Manual current. A "General Correspondence"tab has been created for filing many of the mailings sent from the BWSR Central Office. Many of the..mailings:will include instructions for discarding and replacing outdated information and forms with the updated inserts. For information on obtaining additional copies of this manual, refer to the MN Assoc. of Soil and Water Conservation Districts (MASWCD)for address,and ordering information- In addition, corrections for errors noted should be forwarded to the WCA program staff at the BWSR St. Paul office. Included with this manual is the latest WCA Administration Disk, which includes the current version of every form necessary for administration of the WCA. Please dispose of all previous disks with earlier versions of forms(relabel and reuse the disk as you see necessary). As always, if you have any questions or need assistance, contact the BWSR board conservationist (BC) for your area. The BC list can be found in the Resource Reference Section of this manual. A. WETLANDS-A BRIEF HISTORICAL BACKGROUND ON WETLAND ISSUES AND A CHRONOLOGY OF STATE LAWS SINCE 1858 This section contains a brief historical perspective on the wetlands issue, a chronology of the state wetlands law, and short descriptions of recent federal wetland laws. The chronology does not cover judicial case laws. The information brief concludes with short descriptions of recent federal wetland law. A.1 Wetlands have been a major issue throughout Minnesota's history. The debate over the value of wetlands, and their resulting drainage, has been the paramount water Part I-Program Overview April 1997 WCA Administration I- 3 issue since Minnesota gained statehood in 1858. Early water management in Minnesota consisted mainly of manipulating surface waters--mostly wetlands and small lake areas--attempting to make more land suitable for farming. Surface water was viewed as a "common enemy" and wide scale drainage was the order of the day early in the twentieth century. Wetlands were considered "undesirable wastelands." -Governor Alexander Ramsey, in an 1861 speech to the legislature, said: "From their nature and situation they [wetlands] are capable of easy reclamation. In a climate so dry as ours, we may naturally expect that lands of this class will eventually be the most valuable in the state." As settlement increased, especially along the state's rivers, floods and property damage often occurred and wetlands in floodplain areas came to be valued as storage basins. The drought cycle has greatly influenced lawmakers on drainage and wetlands issues over the years. A series of wet summers would affect the need for more drainage. In recent years, summer drought patterns have increased public concern for wetland preservation. A.2 A Brief Chronology of State Laws on Wetlands 1858 Chapter 73 allowed private corporations to be formed for the purpose of draining lands and creating water privileges. 1883 Chapter 108 allowed county commissioners to authorize the construction of ditches or water courses within the county, including the drainage of"shallow, grassy, meandered lakes under four feet in depth." 1897 Chapter 257 created a state drainage commission to "have care, custody, control and supervision of all drainage ditches in the state." It also provided the first statutory definitions of public and private waters. This law and the powers of the drainage commission were expanded by statutory amendments through 1917. 1919 Chapter 65 abolished the state drainage commission and the Department of Drainage and Waters, under the control of a commissioner, was established. 1931 The Department of Conservation was created and Drainage and Waters became a division within the new department. During the 1930s, the Depression and periods of drought, along with increased conservation concerns, halted wide-scale drainage efforts. 1947 Chapter 142 declared "all waters providing substantial public use and that are navigable in fact" to be public waters. Drainage of public waters could occur only if they were deemed "non-public," or permission was acquired from the Commissioner of Conservation. 1951 The "Save the Wetlands" program was enacted, which used federal funds (Pittman-Robertson)to acquire wetlands for state wildlife management areas. Part I -Program Overview April 1997 WCA Administration I-4 1955 Chapter 681 brought conservation into the drainage code; it required that in determining the benefit of a proposed drainage system, the conservation of soil. water, forests, wild animals and related natural resources must be considered. 1961 Chapter 754 created state policy that, where practicable, all state agencies shall conserve precipitated water in areas where it falls. 1973 Chapters 315 and 479 were enacted that(1) expanded the definition of public waters to include "all waters which serve a beneficial public purpose," thereby including wetlands; and (2) required new elements, including environmental concerns, that need to be considered before establishing or improving drainage systems. 1976 Chapter 83 established a program to inventory and specify public waters once and for all, including wetlands. The state water bank program was created, where easements could compensate landowners who agreed to preserve their wetlands. 1979- The public waters inventory was begun in 1979 to identify all public waters, and final 1984 publication of county inventory maps was finished in 1984. 1991 Chapter 354, the Wetland Conservation Act, created a "no net loss policy;" provided for mitigation of drained or filled wetlands; allowed local units of government administrative authority; and authorized the Board of Water and Soil Resources(BWSR)to adopt rules and acquire permanent easements for Type 1 to 3 wetlands. 1993 Chapter 175 allowed counties or watersheds that had 80 percent or more of their presettlement wetlands remaining to mitigate for draining or filling on a one to one acre basis. Created a deminimis exemption of up to 400 square feet of wetland area. Rules under the 1991 Wetland Conservation Act were adopted by BWSR. 1994 Chapter 627 allowed local governments some flexibility in adopting a comprehensive wetland management plan that could substitute for parts of the BWSR rule on wetlands. It also allows existing roadways to be upgraded to current construction and safety standards, if wetland impacts are minimized and less than one-half acre is impacted. 1996 Chapter 462 amended the Wetland Conservation Act to provide a more streamlined notification process. Exemptions were also reformatted for easier interpretation, with expansion of exemptions covering agricultural land, individual sewage treatment systems, wildlife habitat improvement projects, drainage and deminimis. The 1996 amendments provided that local governmental units may develop Local Comprehensive Wetland Protection and Management Plans as an alternative to the Rules, with flexibility in the application of sequencing standards, replacement standards and certain exemptions. 1996 changes also amended the requirements for public road project replacement, including the provision that the BWSR will replace wetlands drained or filled from the repair, reconstruction or rehabilitation for existing local government public roads. Part I-Program Overview April 1997 WCA Administration I- 5 A.3 Recent Federal Legislation Historically, federal policy on wetland regulation parallels regulation by individual states. The early federal "swampland acts" of 1850 and 1860 transferred 65 million acres of wetlands to fifteen states, including Minnesota. The acts required that proceeds from the sale of wetlands to individuals had to be used to convert wetland to farmland. The federal government began acquiring wetland easements through programs of the Fish and Wildlife Service in 1958 and the U.S. Department of Agriculture in 1972. In 1977, President Carter issued executive orders which established the protection of wetlands and riparian flood plain systems as an official policy for each agency in the federal government. 1972 The Federal Water Pollution Control Act regulates the discharge of dredge and fill material into navigable waterways, including wetlands, under the section 404 permit program administered by the U.S. Army Corps of Engineers.Clean Water Act,33 U.S.C.§ 1344 1985 The Food Security Act created the "swampbuster" provision, which denies USDA farm program benefits to farmers who plant annual crops on wetlands converted after 1985. 16 U.S.C.§3821 to 3824 1990 The Food, Agriculture, Conservation and Trade Act created the Wetlands Reserve Program to restore and permanently protect wetlands, with a goal of enrolling one million acres of farmed wetlands, prior-converted wetlands, and adjacent upland by the year 2000. 16 U.S.C.§3821 to 3824 (Note: This brief represents an historical perspective prepared by John Helland,Legislative Analyst,as a House Research Information Brief Changes in the Wetland Conservation Act since the brief was written in March, 1996 have also been incorporated.A paper entitled"Histoty of Water Management and Protection in Minnesota"by Tom Lewanski,Office of Planning,Department of Natural Resources,provided material for this historical information brief) B. MINNESOTA WETLAND CONSERVATION ACT BASICS B.1 Statutes and Rules The Wetland Conservation Act(WCA)was first passed in 1991 as Minn. Laws Ch.354, as amended (codified, as amended, at Minn. Stat. 103 G.222-.2373 and in other scattered sections). Rules were promulgated by the Minnesota Board of Water and Soil Resources (BWSR) in Chapter 8420 of Minnesota Rules, as amended (Rules). Refer to the Resource Reference Section of this manual for a copy of the Rules, as well as information regarding the statutory language for the WCA. B.2 Basic Requirements Wetlands must not be drained or filled unless (a) drain or fill activity is exempt or(b)wetlands are Part I-Program Overview April 1997 WCA Administration I- 6 replaced by restoring or creating wetland areas of at least equal public value. Goal is no net loss of wetlands. (Rules 8420.0105) B.3 Definition of a Wetland Wetland is defined by presence of(a) hydric soils, (b) surface or subsurface hydrology, and(c) hydrophytic vegetation. (Rules 8420.0110,subp.52.) Wetlands are delineated under standards in 1987 Federal Manual. The Wetland Conservation Act applies to all wetlands, except those identified on DNR inventory of protected waters and wetlands. Refer to the Technical Reference Section of this manual for information regarding delineation of wetlands under the 87 Manual. B.4 Local Governmental Unit The local government unit (LGU) has the primarily responsibility for administration of the WCA and for making key determinations. Generally, the LGU is the city or county, but may be another entity such as a watershed district or soil and water conservation district. (Rules 8420.0110,subp.30.) The state agency is the LGU for a project by that state agency or activity on state land. Refer to Part D of this section of the manual for further information on determining the LGU. B.5 Exemptions The WCA specifies ten categories of exempt drain and fill activities. (Rules 8420.0122.) No permit or approval is necessary for exempt activities. Notable exemptions include those for certain agricultural activities, maintenance of existing public or private drainage systems, public utilities, road maintenance and previously approved developments. There is an absolute "de minimis" exemption for activities draining or filling less than 400 square feet. Other de minimis exemptions range from 2,000 to 10,000 square feet, depending upon wetland type, location, and ownership. (Rules 8420.0122,subp.9.) Refer to "Part II - WCA Exemptions" of this manual for further information. 13.6 Replacement Plans If an activity is not exempt, impacted wetlands must be replaced under a replacement plan approved by the LGU. The replacement plan must demonstrate compliance with "sequencing," i.e., (a)that wetland impacts are avoided as much as possible, (b) that to the extent that the impacts cannot be avoided, the wetland impacts are minimized, and (c) that unavoidably impacted wetlands are replaced as required by the WCA Rules. (Rules 8420.0520.) The Rules include numerous specific requirements as to location, size, type, etc. of replacement wetlands. (Rules 8420.0540-.0550.) Minimum replacement is generally two acres of replaced wetland for each acre drained or filled. For wetlands on agricultural land or in counties where 80 percent or more of the presettlement wetlands exist, minimum replacement is one acre of replaced wetland for each acre drained or filled. (Rules 8420.0540,subp.6.) Refer to "Part III-Replacement Plan Determinations" of this manual for further information and guidance. Part I -Program Overview April 1997 WCA Administration I- 7 B.7 Appeals LGU determinations may be appealed to the BWSR. Review by the BWSR on an appeal is based upon the LGU record. (Rules 8420.0250.) Judicial review of any BWSR decisions regarding an appeal of a decision of a LGU would be in the State Court of Appeals. Refer to"Part VI-Appeals" of this manual for further information regarding appeals under the WCA. B.B. Enforcement DNR conservation officers and other peace officers may issue cease and desist, restoration, and replacement orders for violations of the WCA. (Rules 8420.0290.) Violation of an order is a misdemeanor. Criminal prosecution of violations under the WCA is pursued by county attorneys. Civil enforcement is also an option for obtaining compliance with the WCA. Refer to"Part VII- Enforcement" of this manual for further information and guidance. B.9 Banking The WCA allows wetland losses from drain or fill activities to be replaced by wetlands previously restored or created and deposited into the state wetland bank. The banked wetlands can only be used if the result is a no-net-loss in the quantity, quality, and biological diversity of Minnesota's existing wetlands. Wetland bank"accounts" must always maintain a positive balance. (Rules 8420.0700-.0760.) Refer to "Part V-Banking Procedures" for further information and guidance on banking procedures. Part I-Program Overview April 1997 WCA Administration I- 8 C. DETERMINING LOCAL GOVERNMENTAL UNIT (MN Rules Chapter 8420.0200) Determining the Local Governmental Unit (LGU) for administering the WCA is clearly spelled out in the Rules. Specifically: _ Outside the seven-county metropolitan area, the LGU is the county or city in which the drain or fill activity is located, or its delegate. ► In the seven-county metropolitan area, the LGU is the city, town or water management organization regulating surface-water-related matters in the area in which the drain or fill activity is located, or its delegate. The watershed management plan adopted under M.S. section 103B.231, and related board rules, will normally indicate the appropriate LGU. Lacking an indication, the LGU must be the city, town, or its delegate. If the activity in a wetland is located in two jurisdictions, the LGU for decisions under the WCA shall be the one exercising zoning authority over the project or, if both have zoning authority, the one in which most of the wetland loss will occur. If no zoning permits are required, the LGU shall be the one in which most of the wetland loss will occur. If an activity will affect wetlands in more than one LGU, the BWSR will coordinate the project review to ensure consistency and consensus among the LGUs involved. Potential conflicts for determining the LGU in the seven-county metropolitan area may be resolved using BWSR guidance provided to the Rice Creek Watershed District in a letter dated February 2, 1994 (copy provided in the appendix to this part). Now that the WCA has been implemented for a few years, these types of conflicts are less likely to occur. However, an update to a watershed management plan could propose a change to a designated LGU, for which this guidance may be helpful. A sample resolution for adoption of the WCA is included in the Part I appendix. In addition, the"local governmental unit" is defined, in those cases where an activity or replacement will occur on state land, as the agency with administrative responsibility for that land. The BWSR will resolve all questions as to which government entity is the responsible authority by applying the guidelines spelled out in the Rules 8420.0200, items A to C, as described above. Part I - Program Overview July 1997 WCA Administration I- 9 D. BWSR WCA IMPLEMENTATION CORRECTIVE ACTION POLICY (Note:BWSR endorsed this policy at the July 1995 meeting.) This policy is to set up an action process with an acceptable time frame to bring into compliance an LGU that is not properly implementing/administering the Minnesota Wetland Conservation Act. ;Step 1: Board conservationist(BC)has reason to believe that LGU may not be implementing WCA according to rule and statute. /BC verifies that the LGU has adopted WCA and has a copy of the act, rule, and Administrative Manual. /BC verifies who is administering WCA. (Example: a city may be accused of not administering/enforcing WCA when in fact they have delegated this responsibility to the county.) Step 2: BC compiles information, gathers evidence and develops written documentation. This is done by meeting with the LGU to obtain information such as Technical Evaluation Panel (TEP)findings of fact or decision, LGU experience and training, and other background information. Step 3: BC notifies regional supervisor of findings and then discusses the situation with BWSR WCA program staff to determine appropriate action for BC to take. Step 4: If a significant problem is evident, BC meets with LGU staff to discuss; explains findings, cites Rule and consequences of poor administration of WCA, and explains the BC's and BWSR's role in this process. BC will also recommend corrective actions to the LGU. LGU is informed that BC will conduct a follow up meeting with the LGU within 30 to 45 (maybe 60) days to determine LGU's compliance with BC recommendations. Step 5: If appropriate, BC makes written recommendation to LGU for correction of misadministration. BC documents the LGU's verbal response(agreement/disagreement, etc.) on actions for corrective measures. /If LOU response to corrective actions is negative, a meeting with LGU elected officials will be necessary to present findings and make recommendations. Meeting is scheduled and held. ✓If elected officials indicate that the LGU will not comply, a written warning is sent to LGU elected officials and administering staff specifying that the LGU has 30 days in which to comply. Move to Step 9. Step 6: BC notifies the regional supervisor and BWSR WCA staff of discussion with and recommendations made to the LGU, and meeting held with LGU elected officials. } Part I-Program Overview July 1997 WCA Administration I- 10 Step 7: BC conducts follow up'meeting with the LGU within the 30 to 45 (maybe 60) day period to review on compliance. /If compliance is evident, no further action required. BC reports findings to regional supervisor and BWSR WCA program staff. BC sends written letter of compliance to LGU. /If administration problem still exists, a written communication is necessary. BC schedules a meeting with LGU elected officials to present findings and make recommendations. BC follows up the meeting with written warning which is sent to LGU elected officials and administering staff. LGU is given 30 (maybe 60) days in which to comply. Step 8: BC forwards written summary of activities to regional supervisor and BWSR WCA program staff Step 9: If after 30 (maybe 60) days the LGU has not favorably responded to the written warning, formal action by the BWSR begins as outlined in Chapter 8420.0260 Penalty For Local Government Unit Failure To Apply Law. Consultation between the BC, regional supervisor, BWSR WCA staff and executive director results in written communication to the LGU requesting the LGU to appear at a hearing before the BWSR Dispute Resolution Committee to discuss the matter. Step 10: The hearing before the BWSR is conducted. If corrective action is determined to be necessary, the BWSR will make written communication with the LGU directing specific corrective actions to take place within 60 days, explain the reason for the actions and give consequences for not complying. Step 11: If after the 60 day period the LGU has not corrected the problem, the BWSR will take appropriate legal action to ensure compliance. Actions may include: /declaring a moratorium until actions are corrected /demanding return of the WCA fund portion of block grant /withholding future WCA fund portion of block grant /legal action by the state to secure compliance /increased enforcement action /possible state auditor review of LGU Step 12: An LGU appeal of the BWSR's decision may be taken to the state court of appeals as specified in Chapter 8420.0280 Appeal From Board Decisions. Part I-Program Overview April 1997 WCA Administration I- 11 Item No. 7- Staff Report No. Meeting Date: April 5, 1999 Type of Business: W.K. WK: Work Session;PH:Public Hearing; CA: Consent Agenda; CB:Council Business City of Mounds View Staff Report To: Honorable Mayor and City Council From: Michael Ulrich, Director of Public Works Item Title/Subject: Consideration for MSA System Certification Application Date of Report: March 30, 1999 • Staff recently met with representatives from MnDOT to discuss the merits of MSA system certification. It was suggested that staff receive City Council approval to submit the certification request. Staff is seeking such approval. 7'(""'"/ Michael Ulrich, Director of Public Works Item No. U Type of Business: WK WK: Work Session;PH:Public Hearing; CA: Consent Agenda; CB:Council Business City of Mounds View Staff Report To: Mayor and City Council From: John Hammerschmidt Item Title/Subject: Golf Course Planning, Billboards and Truck purchase Date of Report: March 31, 1999 • Please review staff report from the City Council meeting on March 22, 1999 for discussion purposes. Item No. Type of Business: WK WK: Work Session;PH:Public Hearing; CA:Consent Agenda;CB: Council Business City of Mounds View Staff Report To: Mayor and City Council From: Carl Schmidt Item Title/Subject: Building Inspection Contract And Resolution 5329 Appointing Constance Forsythe as the Certified Building Official Date of Report: April 1, 1999 Attached is a copy of the proposed building inspections contract with the Spring Lake Park-Blaine-Mounds View Fire Department for your discussion. Payment for the services provided by the Fire Department to the City shall be as follows: (a) The City will pay Fire Department a maximum of$40,000 per year, $5000 of which is due by January 1 of each contract year. The remainder will be billed throughout the year as work is performed. This cost is based on historical numbers of plan reviews and inspections. (b) The annual cost to the City for such services shall not exceed$40,000 unless the activity increased by more than a 10%margin, at which time the Fire Dept. Could renegotiate a compensation package. (c) Payment for services shall be made upon the presentation of billing statements to the Municipality. The Municipality shall make payment to the Fire Department within thirty (30) days of its receipt of the billing statement or make reasonable arrangements for payment acceptable to the Fire Department. The attached Resolution 5329 names Constance Forsythe as our Certified Building Official. It also lays out the Cities responsibility in the event of suit against the Building Official. If you have any questions,please call me (717-4008) or Fire Chief Nyle Zikmund(786-4436). Respectfully Submitted, Cari Schmidt Assistant to the City Administrator C:\W INNT\WP{WP}.BK2 RESOLUTION NO. 5329 CITY OF MOUNDS VIEW COUNTY OF RAMSEY STATE OF MINNESOTA RESOLUTION APPOINTING CONSTANCE FORSYTHE AS THE CERTIFIED BUILDING OFFICIAL FOR THE CITY OF MOUNDS VIEW WHEREAS, the City of Mounds View, Minnesota has entered into an agreement with the Spring Lake Park-Blaine-Mounds View Fire Department for building official services for the City of Mounds View; and WHEREAS, the contract requires that an individual be named as the Certified Building Official; and WHEREAS, Constance Forsythe is duly certified by the State of Minnesota Commissioner of Administration to perform Building Official services; and WHEREAS,the Uniform Building Code holds that the Building Official, when acting in good faith and without malice in the discharge of duties, has a suit brought against them, shall not be held personally liable; moreover that the City shall indemnify said Official from any judgement resulting therefrom; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF MOUNDS VIEW, MINNESOTA THAT Constance Forsythe,through contract with the Spring Lake Park-Blaine-Mounds View Fire Department, is the Certified Building Official for the City of Mounds View; Moreover that the City of Mounds View agrees to indemnify the aforementioned Building Official, who, acting in good faith and without malice, has a judgment rendered against them. Adopted this day of April, 1999 ATTEST Mayor Dan Coughlin (SEAL) Charles S.Whiting, City Administrator AGREEMENT FOR BUILDING INSPECTION SERVICES This Agreement, made and entered into this day of , 1999, by and between the CITY OF MOUNDS VIEW, MINNESOTA, a municipal corporation, 2401 Highway 10, Mounds View, MN 55112, (hereinafter referred to as the"Municipality") and the SPRING LAKE PARK-BLAINE-MOUNDS VIEW FIRE DEPARTMENT, INC., a Minnesota —non-profit corporation(hereinafter referred to as the"Fire Department"). WITNESSETH WHEREAS, the Fire Department renders fire protection and related services to the Cities of Mounds View, Spring Lake Park and Blaine, Minnesota, and is willing to provide certain building inspection and plan review services to the Municipality in furtherance of its public duties; and WHEREAS, the Municipality wishes to engage the Fire Department to provide building inspection and plan review duties which the parties acknowledge will result in the rendition of essential public services; NOW, THEREFORE, in consideration of the foregoing agreements and mutual covenants contained herein, and the considerations hereinafter set forth,the parties hereto agree as follows: ARTICLE I. PURPOSE AND SCOPE 1.1 Subject to the terms and conditions of this Agreement,the Fire Department agrees to provide building inspection and plan review services in accordance with Minnesota Statutes §16B.65 within the corporate limits of the Municipality(the "Territory")to the extent and in the manner as hereinafter set forth. ARTICLE II. TERM 2.1 This Agreement shall commence on the date hereof and shall continue in effect until December 31,2000 (the "Term"),unless otherwise terminated, extended or amended as hereinafter provided. ARTICLE III. SERVICES It is the intention of the parties hereto that the Fire Department shall perform the duties normally performed by a city building inspector which duties are acknowledged by the Municipality and the Fire Department to serve an essential public function. In accordance therewith, the Municipality agrees to purchase and the Fire Department agrees to furnish the following.services: 3.1 Fire Department agrees to answer calls from the Municipality for building inspection,plan review and site review by sending out building inspection personnel as soon as reasonably practical to such areas designated and requested by the Municipality within the Territory. 3.2 All portions of the Territory shall be designated on a map which shall be supplied by the Municipality to the Fire Department. 3.3 Fire Department agrees to furnish the building inspection,plan review, and site review services and necessary personnel as reasonably requested by the Municipality to the said designated areas in the Territory, for the consideration set forth below, and agrees that its building inspection personnel will make every reasonable effort to respond to requests from the Municipality for inspection services. 3.4 Fire Department and Municipality each agrees to the position description and performance of the duties as described on APPENDIX A of this document, which is attached hereto and made a part hereof. 3.5 The Fire Department agrees to perform all duties as required by Minnesota Statutes. ARTICLE IV. COMPENSATION 4.1 Payment for the services provided by the Fire Department to the Municipality shall be as follows: (a) Subject to Subsection 4.1(c)below, the Municipality will pay the Fire Department fees for services rendered by the Fire Department under this Agreement(the "Service Fees") in accordance with Subsection 4.1(b) below. (b) Payment for services shall be made upon presentation of periodic billing statements to the Municipality. The Municipality shall make payment to the Fire Department within thirty (30) days of its receipt of the billing statement or make reasonable arrangements for payment acceptable to the Fire Department. (c) Except as otherwise adjusted upward from time to time in accordance with the Consumer Price Index(the "CPP"), the annual cost to the Municipality for the Service Fees shall not exceed Thirty-Five Thousand Dollars ($35,000) per year(a figure based on historical numbers of plan review and inspections)unless said activity increases by a margin of ten(10%) or more in any year, at which time the Fire Department and the Municipality shall in good faith renegotiate a compensation package. (d) In addition to the Service Fees and amounts negotiated, if any, in accordance with Subsection 4.1(c), the Municipality will pay the Fire Department a fee of Five Thousand Dollars ($5,000) (the"Administration Fee") on the date of this Agreement and,thereafter, on January 1 Mounds View Building Inspector Contract- of each contract year during the Term or any period of renewal thereof. The Administration Fee is a nonrefundable fee for administrative expenses and shall not be applied to or set off against the Service Fees due from or paid by the Municipality on account of any work performed by the Fire Department under this Agreement. 4.2 The Fire Department agrees to submit to the Municipality a copy of the Fire Department's annual financial report as prepared by its certified public accountant no later than June 30 of each year, or as soon thereafter as is reasonably practicable. ARTICLE V. DEPARTMENT ORGANIZATION 5.1 The Fire Department agrees to remain at all times a non-profit corporation under Minnesota Statutes 317.17A. 5.2 The Fire Department shall at all times be in material compliance with such equipment, personnel and training standards relating to building inspections as may be required by the laws of the State of Minnesota and the Federal Government. ,3 Dea zt agrees to Izave one Or � �� ,incl ut dk p a 4�nb�nation pec or,as e I esota d .g O cia. Cla ificat r , Y other quahficat�ons and/or cc :i anti s i quire l by la Upo � ivn o thi e merit by tie Fixe Ileparttnent and the iicipalrty the NTugxcipahty pureuan a l ili n t t§l(I3 62 subd. 1,.and Minn Stat §1 b bd 1 shall apppo in ode 01ncl �cl�t o the re Departm ent as tie Mu zczpal ty's J zng Of c 1,wl c be na red xn an attached Rcsclution 5.4 Except as otherwise set forth in and contemplated by that certain Contract to Furnish Fire Protection Services to the Cities of Blaine, Mounds View and Spring Lake Park by and among the Cities of Blaine, Mounds View, Spring Lake Park and the Spring Lake Park Fire Department(the"Joint Powers Agreement"),the Fire Department shall be responsible for the entire cost of operation of the Fire Department(including costs associated with the payment of its employees, agents, and independent contractors as well as the costs associated with the upkeep of the equipment). The Municipality shall in no way be liable for any amount other than the payment of the amounts herein set forth or any amounts negotiated under Article IV hereof, except as otherwise set forth in or contemplated by Article VII of this Agreement and the Joint Powers Agreement. 5.5 The Fire Department shall carry Public Liability Insurance and Workers' Compensation Insurance for its personnel and on any of its equipment and the operators of such equipment, said insurance to provide a minimum of Five Hundred Thousand Dollars ($500,000) primary and One Million Dollars ($1,000,000) excess coverage. A certificate of insurance shall be provided to the Municipality indicating the types and amounts of insurance in force on such intervals as the Municipality shall reasonably request. n:\users\cans\build.con Mounds View Building Inspector Contract- 5.6 The Fire Department shall maintain: (a) Workers' Compensation insurance in compliance with all applicable statutes; and (b) Professional, automobile, contract, and general liability insurance in amounts and in forms reasonably satisfactory to the Municipality; 5.7 All services provided by the Fire Department, its officers, agents and employees pursuant to this Agreement shall be provided by such persons as independent contractors and not as an employee of the Municipality for any purpose. With respect to such individuals, the Fire Department shall remain responsible for: (a) Federal and State Income tax withholding; (b) Workers' compensation; (c) Unemployment compensation; and (d) FICA. ARTICLE VI. DUTIES TO COOPERATE 6.1 The Fire Department shall have all reasonable and necessary cooperation and assistance from the Municipality, its officers, agents, and employees as may be reasonably necessary or desirable to facilitate the Municipality's performance of this Agreement. 6.2 The Municipality shall have all reasonable and necessary cooperation and assistance from the Fire Department, its officers, agents, and employees as may be reasonably necessary or desirable to facilitate the Fire Department's performance of this Agreement. ARTICLE VII. INDEMNIFICATION 7.1 The Municipality will,by resolution, approve this Agreement and appoint the Fire Department and its designated representative(s) as its "building official" or"his authorized representative" (as those terms are defined below). 7.2 The Municipality acknowledges, represents,warrants and agrees that the Fire Department and its officers, employees, representatives and agents will be serving as "building official"or"his authorized representative"within the meaning and contemplation of §16B.65 of the Minnesota Statutes and §104.2.6, §202-204(f) or comparable provision of the Uniform Building Code, and will be rendering an essential public service in connection with the services performed under this Agreement. Accordingly, the Municipality acknowledges and agrees as follows: n:\users\cans\build.con Mounds View Building Inspector Contract- THE ENFORCEMENT AND ADMINISTRATION OF THE MINNESOTA STATE BUILDING CODE IS A PUBLIC SERVICE AND IS OF NECESSITY LIMITED IN NATURE. CONSEQUENTLY,ANY BUILDING PERMIT OF CERTIFICATE OF OCCUPANCY OR ANY BUILDING INSPECTIONS OR SERVICES RENDERED BY THE FIRE DEPARTMENT UNDER THIS AGREEMENT IS NOT TO BE CONSTRUED OR RELIED UPON BY THE MUNICIPALITY OR ANY OTHER PARTY AS ANY TYPE OF WARRANTY,GUARANTEE OR REPRESENTATION ON THE PART OF THE FIRE DEPARTMENT OR ANY INDIVIDUAL INSPECTOR ENGAGED TO ACT ON ITS BEHALF NOR THAT THE CONSTRUCTION OR FINISHED PRODUCT ARE NECESSARILY IN CONFORMANCE WITH THE MINNESOTA STATE BUILDING CODE OR OTHER APPLICABLE CONSTRUCTION STANDARDS. FURTHER,NEITHER THE FIRE DEPARTMENT NOR ANY INDIVIDUAL INSPECTOR PERFORMING INSPECTION OR RELATED SERVICES UNDER THIS AGREEMENT AGREES IN THIS AGREEMENT OR OTHERWISE TO ASSUME ANY RESPONSIBILITY OR LIABILITY FOR DAMAGES OF ANY NATURE ALLEGEDLY ARISING OUT OF THE ISSUANCE OF ANY BUILDING PERMIT OR CERTIFICATE OF OCCUPANCY OR ANY INSPECTIONS OR OTHER SERVICES PERFORMED AT THE REQUEST OF THE MUNICIPALITY UNDER THIS AGREEMENT. NOTHING IN` S RAGRAPH BRACE VE-EMED TO II r VAIVERBY THE C'. O MOi DSV E£OFANY LIMITATIONS ONOR IMMUNITIES FRSLIABILITI Sr SET IN WrasOTA STATUTES C TATTER.466 SII TO WHI G 'HE CITY OF; MOUNDS VIE OT I' SELECTED OFFICIALS,OFFICERS,EMPLOYEES, ,GEIS,VIDA LV/VJP:TAPYW4gEPTHERWISKTNTITUP. The Municipality will use its best efforts to ensure that substantially the foregoing language shall appear as an attachment or part of each building permit and certificate of occupancy issued by the Municipality. 7.3 The Municipality shall defend, indemnify and hold harmless the Fire Department and its officers, employees, agents and representatives from and against any and all claims, costs, losses, liabilities, expenses, demands, actions or causes of action, including without limitation reasonable attorneys' fees and other costs and expenses of litigation, which may arise out of this Agreement on account of services provided by the Fire Department or any of its officers, employees, agents or representatives hereunder or due to a breach by the City of any of its representations or warranties hereunder. The obligations of the Municipality under this Article VII shall survive the termination of this Agreement for whatever reason. ARTICLE VIII. ENFORCEMENT 8.1 If any claim, proceeding or action is brought by the Municipality or the Fire Department to enforce the provisions of this Agreement, the prevailing party shall be entitled, in addition to costs of suit, to reasonable attorneys' fees incurred in connection with any such claim, proceeding or action and the same may be awarded by the court having jurisdiction of such claim,proceeding or action. n:\users\canis\build.con Mounds View Building Inspector Contract- ARTICLE IX. CHOICE OF LAW 9.1 The provisions of this Agreement shall be construed in accordance with the internal laws (without regard to the laws of conflicts) of the state of Minnesota. ARTICLE X. BENEFIT 10.1 This Agreement shall be binding upon and inure to the benefit of the successors of the Municipality and the Fire Department. ARTICLE XI. TERMINATION 11.1 This Agreement may be terminated by either party at any time with or without cause upon not less than one hundred eighty(180) days written notice delivered by mail or in person to the other party, in which event the Agreement shall terminate upon the effective date statedin any such notice. Notices delivered by mail shall be deemed to be received two (2) days after mailing. Such termination shall not be effective with respect to services rendered prior to such notice of termination. 11.2 This Agreement may be terminated by either party in the event of a material default of the obligations of the other party by giving not less than thirty(30) days advance written notice of termination specifying the reason for termination,provided that such notice will be of no effect and termination will not occur if the specified default is cured prior to the expiration of said thirty(30) day notice period. 11.3 Termination of this Agreement shall not relieve or release the Municipality from its obligations to make any payment which may be owing to the Fire Department as a Service Fee or an Administrative Fee under the terms of this Agreement or from any other liability which the Municipality may have to the Fire Department arising out of the terms of the Agreement including, but not limited to, those set forth in or contemplated by Article VII. ARTICLE XII. DATA PRACTICES 12.1 Data provided to the Fire Department under this Agreement shall be administered in accordance with Minnesota Statutes, Chapter 13, and all data on individuals shall be maintained in accordance with statutory guidelines. 12.2 All records, information, materials and other work products prepared and developed by the Fire Department in connection with the provision of services hereunder shall become the exclusive and confidential property of the Municipality. No such records shall be made available to any other individual or organization by the Fire Department without prior approval of the Municipality except as may be necessary to comply with an order of any judicial n:\users\caris\build.con Mounds View Building Inspector Contract- or administrative tribunal, agency or governmental body or as may be necessary for the Fire Department and its officers, employees,representatives or agents to perform the services contemplated hereunder. ARTICLE XIII. ENTIRE AGREEMENT 13.1 This Agreement contains the entire understanding between the City and the Fire Department concerning the subject matter hereof and supersedes all prior discussion, understandings or agreements whether written or oral; and the provisions applicable thereto cannot be-amended, altered, enlarged, supplemented, abridged, modified, extended or waived except in writing duly signed by all the parties hereto. 13.2 This Agreement may be modified, extended or amended only with the written approval of the Fire Department and the Municipality. 13.3 This Agreement shall be binding upon and inure to the benefit of the parties. No assignment or attempted assignment of this Agreement or any rights hereunder shall be effective unless consented to in writing by the parties. Notwithstanding the foregoing, nothing contained in this Subsection 13.3 shall preclude the Fire Department from retaining independent contractors or other personnel to perform services on its behalf under this Agreement. 13.4 In the event that any one or more provisions of this Agreement or any application thereof, shall be found to be invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions in any application therefor shall not in any way be affected or impaired thereby. ARTICLE XIV. ADDRESSES AND NOTICES 14.1 Any notice permitted or required to be given under this Agreement must be in writing and shall be deemed to have been given if sent by certified mail,postage prepaid, addressed as follows: To the City: City Clerk Administrator City of Mounds View 2401 Highway 10 Mounds View, MN 55112 Attn: Charles S. Whiting, City Administrator To the Fire Dept.: Spring Lake Park, Blaine and Mounds View Fire Department 1710 Highway 10 Spring Lake Park, MN 55432 n:\users\caris\build.con Mounds View Building Inspector Contract- Attn: Nyle Zikmund, Fire Chief With a copy to: Kennedy& Graven, Chartered 470 Pillsbury Center 200 South Sixth Street Minneapolis, MN 55402 Attn: Scott Riggs, Esq. Lindquist&Vennum P.L.L.P. 4200 IDS Center 80 South Eighth Street Minneapolis, MN 55402 Attn: Patrick Delaney, Esq. CITY OF MOUNDS VIEW SPRING LAKE PARK-BLAINE MOUNDS VIEW FIRE DEPARTMENT By By Dan Coughlin Its Mayor Its By Charles S. Whiting Its Clerk-Administrator STATE OF MINNESOTA ) ss COUNTY OF ) The foregoing instrument was acknowledged before me on this day of , 1999, by Dan Coughlin and Charles S. Whiting, the Mayor and City Clerk-Administrator,respectively, of the City of Mounds View, a municipal corporation, on behalf of the municipal corporation. Notary Public N:\users\canis\build.con 8.Mounds View Building Inspector Contract-Draft 1-2/1/99 APPENDIX A BUILDING INSPECTOR POSITION DESCRIPTION _.Position Description: Perform comprehensive building, housing and fire inspections on residential, commercial and industrial properties to ensure compliance with existing city and state codes and policies governing new construction and existing structures. Essential Duties and Responsibilities: • Provides a set number of hours per week in a specified time frame (to be decided upon by the parties) whereupon the City of Mounds View can schedule inspections. • Provides a set number of hours per week in a specified time frame (to be decided upon by the parties)to be present in Mounds View City Hall for resident walk-ins. • Provides guidance and assistance in all areas of building permit applications and reviews all submitted permits to ensure compliance with established state and local codes and ordinances. • Oversees and issues permits which are in compliance and provides assistance in identifying changes required in specifications to meet established codes. • Calculates building permit fees and ensure that all fees are assessed accordingly. • Conducts on-site comprehensive inspections to ensure compliance with existing codes including building,mechanical, plumbing, fire and housing. • Ensures all related paperwork is completed and full documentation is available for decisions related to the inspection process. • Provides concise code interpretations for those circumstances in which there is a difference of opinion of the specific intent of a specific code provision. • Assists with city, county, state, and federal programs by taking applications, performing inspections and completing paperwork necessary to provide eligibility for applicants. • Reviews contractor license applications for recommendation to the City Council. • Investigates citizen complaints related to the building,housing,and fire code activities of the City with the goal of resolving issues in the best interest of all concerned. Peripheral Duties: • Informs the Public Works and Community Development Director of any inspection related activities which require immediate attention or action. • Consults with the City Attorney as required to review and assure proper legal requirements are being met in all building,housing, and fire code activities, or to initiate legal action to ensure code compliance. • Continually reviews existing code and ordinances for consistency in ease of enforcement and interpretation and recommend modifications wherever necessary. • Attends meetings as assigned or as requested when matters relate to responsibilities assigned. N:\users\cans\build.con 9.Mounds View Building Inspector Contract-Draft I-2/1/99 • Provide and perform all building official duties in compliance with State, Local, and Federal laws and/or regulations. • Assumes other responsibilities as apparent or as delegated. Necessary Skills and Abilities: `(A) Possess knowledge of uniform building codes and electrical codes, plumbing codes, mechanical codes, general construction codes, and a thorough knowledge of carpentry. Possess knowledge in electrical work, carpentry work, cement work, or plumbing, and skill in applying knowledge of national uniform building codes,zoning and land use applications. Knowledge of methods, materials, terminology and practices in general building construction. Knowledge of laws governing zoning and general building construction. (B) Ability to establish effective working relationships with contractors, developers, architects, engineers, owners, developers, the general public and city personnel. Ability to read and understand complicated plans and blueprints; Ability to communicate effectively orally and in writing; (C) A valid state driver's license, or ability to obtain one by start of employment. (D) One or more I.C.B.O certifications,including but not limited to plans examiner,combination inspector. Minnesota Building Official Class II Certification required. • • N:\users\caris\build.con 10.Mounds View Building Inspector Contract-Draft 1-2/1/99 Item No. I 0 Meeting Date: 4/5/99 Staff Report No. Type of Business: WK WK: Work Session;PH:Public Hearing; CA:Consent Agenda;EDAB:EDA Business Mounds View City Council Staff Report To: Mounds View Economic Development Authority From: Rick Jopke, Community Development Director Item Title/Subject: Consideration of an Amended Development Assistance Agreement with Michael Investments (Everest Group) Regarding the Building N Project. Date of Report: March 29, 1999 SUMMARY The EDA has approved an original development agreement with conditions and subsequently some amendments to the agreement as requested by the Everest Group in order to facilitate the development of a vacant site in the Mounds View Business Park. The EDA has also denied other requested amendments. The EDA in September of 1998 approved the most recent version of the agreement which changed the development entity, slightly reduced the size of the building, and allowed the developer more flexibility to do a build-to-suit deal (Resolution 98-EDA97). To date the development assistance agreement has not been signed. In December of 1998,the City Council approved an alternate site plan to give the developer the flexibility to do either the originally proposed manufacturing/warehouse/office building or a office/flex/service building. The developer is now requesting that the development assistance agreement be amended to reflect the site plan changes approved by the City Council. The requested changes are housekeeping in nature. The proposed changes include: 1. A change in the date of the agreement. 2. A revision of the definition of the term"Improvements"to reflect the alternate site plan approved by the City Council in December of 1998. 3. A change to indicate that the development entity is a general partnership and not a corporation. 4. a change to indicate that Jeffrey L.Neilsen is the General Partner and not President of Michael Investments. Jim O'Meara from Briggs and Morgan,who drafted the original agreement on behalf of the EDA,has reviewed the proposed changes and indicated that there are no legal issues with the proposed changes. Attached is the revised agreement drafted by Mr. O'Meara. The revised agreement was discussed at the March 1, 1999 work session and the March 8, 1999 EDA meeting. The EDA postponed discussion of this item to the April 5, 1999 work session because of questions about the overall agreement. EDA Memo -Building N Agreement March 29, 1999 Page 2 EDC REVIEW The EDC reviewed this matter at their March 25, 1999 meeting. The EDC had no problems or issues with the proposed housekeeping items. The EDC also reviewed the overall agreement and indicated that without all the background financial information that was reviewed when the initial agreement was approved by the EDA it was difficult to comment on the specifics of the agreement. The consensus of the EDC was that if the EDA wished to review the overall agreement the following items should be reviewed within the context of the long history of negotiations and agreements relating to this project: 1. Amount of assistance. The agreement caps assistance at$1,200,000, or the sum of certain site and public improvements plus $615,000 for the land. The EDC questioned the portion of assistance given for the land. What are the developers's actual land costs (acquisition, development, holding)?Probably less than$615,000. Does it make sense to use actual costs versus the $615,000 fair market value? Were there prior agreements in connection with the industrial park that hold us to using a fair market value vs. Cost? On the other hand,the current fair market value of the land has probably gone up since it was appraised. Also,the EDC noted that the agreement does not allow assistance for other"eligible" costs. 2. Length of the note. Is it necessary to provide assistance until February 1, 2014? The EDC indicated that this should be reviewed in the context of current practices and the rationale of the past approvals. 3. Job and wage goals. The EDC stated that in the future more realistic job and wage goals should be included in development assistance agreements. EDA ISSUES AND CONCERNS: Staff asked EDA members to provide any specific issues and concerns that they had so that they could be addressed at the April 5th work session. One EDA member responded and indicated the following issues and concerns: 1. Is the interest rate the EDA pays on the note too high based on today's market? In a pay-as- you-go tax increment assistance deal the developer assumes all the risk because they pay all the costs upfront and only get reimbursed based on the tax increment that is actually generated. If less increment is generated then they get less assistance. The interest received is their reward for assuming that risk. In this specific case the EDA has limited the types of eligible expenses that the developer can be reimbursed for so the interest also helps the developer get the overall amount of assistance which they believe is necessary to make the project work from an economic standpoint. Because the developer is paying all the costs up front they may also have to borrow money. The interest received from the City can also cover all or a portion of the interest that the developer has to pay. Staff discussed this with Dave Maroney,the City's financial consultant, and he indicated that interest one item that is negotiable within the context of the overall deal. There are no set guidelines to determine_ what if any interest should be paid. Its typically set at a level that is necessary to make the deal work economically. It appears that the 8%rate is in the range of what a developer would have to pay to finance the project. This can vary based on the type of project,the number and type of tenants, and the financial condition of the borrower. I have attached a copy of a spreadsheet which I put together to attempt to illustrate what a payment schedule might be for this development if certain assumptions come true. The assumptions are listed at the bottom of the spreadsheet. 2. Are the job and wage goals too low. The job and rage goals in the agreement are strictly there to satisfy state requirements. State statutes state that there have to be job and wage goals anytime Cities give assistance to private developers. If these goals are not met then any assistance given has to be paid back. State statutes do not specify how to determine job and wage goals, only that there has to be some. For that reason they are set low in agreements to ensure that assistance does not have to be paid back. The actual number of jobs generated and the actual wages paid will exceed the goals listed. ick Jopke Community Development Director N:\DATA\GROUPS\ECONDEV\EDA-EDC\EDA\STAFF99\04-5-99.WPD 2/15/99 Draft DEVELOPMENT ASSISTANCE AGREEMENT By and Between THE MOUNDS VIEW ECONOMIC DEVELOPMENT AUTHORITY And MICHAEL INVESTMENTS [BUILDING "N" PROJECT] This document drafted by: Briggs and Morgan 2200 First National Bank Building 332 Minnesota Street Saint Paul, Minnesota 55101 Telephone : (651) 223-6600 Facsimile : (651) 226-6450 334455.6 TABLE OF CONTENTS (This Table of Contents is not part of the Development Assistance Agreement and is only for convenience of reference. ) Page ARTICLE I - DEFINITIONS 1-1 - Section 1 . 1. Definitions 1-1 ARTICLE II - REPRESENTATIONS, COVENANTS AND WARRANTIES . . 2-1 Section 2 . 1 . Representations and Warranties by the Authority 2-1 Section 2 . 2 . Representations, Covenants and Warranties by the Developer 2-i ARTICLE III - THE IMPROVEMENTS 3-1 Section 3 . 1 . Undertakings of the Developer 3-1 Section 3 . 2 . Undertakings of the Authority 3-1 Section 3 . 3 . Construction Plans 3-3 Section 3 . 4 . Certificate of Completion 3-4 ARTICLE IV - PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER; INDEMNIFICATION 4-1 Section 4 . 1 . Prohibition Against Transfer of Property and Assignment of Agreement . . 4-1 Section 4 . 2 . Release and Indemnification Covenants . . 4-2 ARTICLE V - EVENTS OF DEFAULT 5-1 Section 5 . 1 . Events of Default Defined 5-1 Section 5 . 2 . Remedies on Default 5-1 Section 5 . 3 . No Remedy Exclusive 5-1 Section 5 .4 . No Additional Waiver Implied by One Waiver 5-1 Section 5 . 5 . Default by Authority; Specific Performance. 5-2 ARTICLE VI - Additional Provisions 6-1 Section 6 . 1 . Titles of Articles and Sections 6-1 Section 6 . 2 . Notices and Demands 6-1 Section 6 . 3 . Counterparts 6-1 Section 6 . 4 . Law Governing 6-1 Section 6 . 5 . Time of the Essence 6-1 Section 6 . 6 . No Third-Party Beneficiaries 6-1 ARTICLE VII - TERMINATION OF AGREEMENT; EXPIRATION 7-1 Section 7 . 1 . Termination 7-1 Section 7 . 2 . Sections to Survive Termination 7-1 EXHIBIT A - DEVELOPMENT PROPERTY A-i EXHIBIT B - FORM OF EDA NOTE B-1 EXHIBIT C - CERTIFICATE OF COMPLETION C-1 334455.6 1 1 EXHIBIT D - PUBLIC IMPROVEMENTS D-1 EXHIBIT E - SITE IMPROVEMENTS E-1 334455.6 111 DEVELOPMENT ASSISTANCE AGREEMENT THIS AGREEMENT is dated as of , 1999; is by and between the Mounds View Economic Development Authority and Michael Investments, a Minnesota general partnership; and provides as follows : ARTICLE I DEFINITIONS Section 1 . 1 . Definitions . In this Agreement, unless a different meaning clearly appears from the context : "Agreement" means this Development Assistance Agreement by and between the Authority and the Developer, as the same may be from time to time modified, amended or supplemented. "Authority" means the Mounds View Economic Development Authority. "Board" means the Board of Commissioners of the Authority, its governing body. "Bonds" means (1) the City' s $6 , 000, 000 Taxable General Obligation Tax Increment Bonds, Series 1988A, dated February 1, 1988, (2) the City' s $930, 000 General Obligation Tax Increment Bonds, Series 1989B, dated November 1, 1989, (3) the City' s $1, 490 , 000 Taxable General Obligation Tax Increment Bonds, Series 1989C, dated November 1, 1989, (4) and any bondsor similar obligations issued by the City or the Authority to refund any of the Bonds (including without limitation (i) the City' s $4 , 945, 000 Taxable General Obligation Tax Increment Refunding Bonds, Series 1996B, dated May 1, 1996, and issued to "crossover refund" the above-mentioned Series 1988A Bonds as of February 1, 1996 ; (ii) the City' s $2 , 770 , 000 Taxable General Obligation Tax Increment Refunding Bonds, Series 1996A, dated March 1, 1996, to the extent issued to advance refund the above-mentioned Series 1989C Bonds (pursuant to which said Series 1989C Bonds will be paid in full on February 1, 1997) ; and (iii) the City' s $815, 000 General Obligation Tax Increment Refunding Bonds, Series 1996B, dated March 1, 1996, and issued to advance refund and pay in full on February 1, 1997, the above-mentioned Series 1989 Bonds) . "Certificate of Completion" means the certificate substan- tially in the form of the attached Exhibit C, to be executed by the Authority upon the conditions provided in Section 3 . 4 hereof upon completion of the Improvements . "City" means the City of Mounds View, Minnesota. 334455.6 1-1 "Construction Plans" means the plans, specifications, drawings and related documents on all construction work to be performed by or on behalf of the Developer on the Development Property, including the Improvements and all other on-site improvements to be performed, installed or constructed upon the Development Property pursuant to this Agreement. Such plans shall at a minimum include, where applicable, the following: (i) site plan; (ii) foundation plan; (iii) basement plans; (iv) floor plan for each floor; (v) cross sections of each (length and width) ; (vi) elevations (all sides) ; (vii) the Design Plans; and (viii) adequate plans, drawings and specifications relating to all driveways, walks, parking and other improvements to be constructed upon the Development Property by the Developer. "Design Plans" means plans which show in adequate detail the design, architectural style, facia, signing, lighting, landscaping, parking and interior traffic components of the Improvements, or applicable portions thereof . "Developer" means Michael Investments, a Minnesota general partnership, or its successors or assigns under this Agreement . "Development Costs" means the $615, 000 current market value of the Development Property plus the unreimbursed costs incurred and paid by the Developer in making the site improvements (the "Site Improvements") for the Improvements and in installing the necessary public infrastructure improvements (the "Public Improvements" ) for the Improvements, all as further described and defined in Section 3 . 2 . "Development District" means the Authority' s Development District No . 2 , as amended. (Note : As of May 9, 1994 , the Development District has been incorporated into the Authority' s Mounds View Economic Development Project . ) "Development Program" means the Authority' s Development Program for the Development District, as amended. (Note : As of May 9, 1994 , the Development Program has been incorporated into the Project Plan of its Mounds View Economic Development Project . ) "Development Property" means the real property described in Exhibit A of this Agreement . "EDA Note" means the obligation substantially in the form of the attached Exhibit B which is described in Section 3 . 2 . "Event of Default" means any Event of Default described in Section 5 . 1 of this Agreement . "Improvements" means the approximately 97, 463 square foot building which may be constructed by the Developer as manufactur- ing/warehouse/office facilities, or an approximately 69 , 582 square foot building which may be constructed by the Developer as 334455.6 1-2 office/flex/service facilities, to be located on the Development Property within the Tax Increment Finance District, and all other improvements, including walks, landscaping, utility improvements and relocations, and fixtures and equipment, to be constructed or installed upon the Development Property in connection with and in order to facilitate the above described improvements . "Party" means either the Developer or the Authority, as the context may require. "Parties" means the Developer and the Authority. "Public Improvements" means the public infrastructure improvements for the Improvements described in Section 3 . 2 and Exhibit D. "Site Improvements" means the site improvements for the Improvements described in Section 3 . 2 and Exhibit E . "State" means the State of Minnesota. "Tax Increment Act" means Minnesota Statutes, Sections 469 . 174 through 469 . 179, as the same may be amended or supplemented. "Tax Increments" means those tax increments which the Authority shall be entitled to receive and retain, and which the Authority shall have actually received, from Ramsey County from time to time from the Tax Increment Financing District pursuant to the Tax Increment Act; provided that the term "Tax Increments" shall specifically not include any amounts of tax increment generated by the Tax Increment Financing District which pursuant to the applicable terms of the Tax Increment Act (as it may exist or be amended from time to time) may be required to be paid to or reserved for the State of Minnesota, Ramsey County, or any other entity or official; and "Available Tax Increments" means 900 of the Tax Increments generated by the portion of the tax capacity of the Development Property which exceeds $22, 342 . "Tax Increment Financing District" means the Authority' s Tax Increment Financing District No. 1 (which has also been sometimes referred to as Tax Increment Redevelopment District No. 1) within the Development District, as now under the governance and control of the Authority, as described in Section 2 . 1 (c) . "Unavoidable Delays" means any delay outside the control of the Party claiming its occurrence which is the direct result of strikes, other labor troubles, unusually severe or prolonged bad weather, unavailability of materials, Acts of God, fire or other casualty to the Improvements, litigation (including without limitation bankruptcy proceedings) and which directly results in delays; or acts of any federal, state or local governmental unit which directly result in delays . 334455.6 1-3 ARTICLE II REPRESENTATIONS, COVENANTS AND WARRANTIES Section 2 . 1 . Representations and Warranties by the Authority. The Authority represents and warrants that : (a) The Authority is a municipal corporation and political subdivision of the State organized and existing under the laws of the State. (b) The Authority has the authority to enter into this Agreement and carry out its obligations hereunder, subject to the same enforceability exceptions provided in Section 2 .2 (a) with respect to the Developer. (c) The Authority represents that the City established the Development District and adopted its Development Program pursuant to the Minnesota Municipal Development District Act, previously found in Minnesota Statutes, Chapter 472A, and now codified in Minnesota Statutes, Sections 469 . 124 through 469 . 134, and that the City established the Tax Increment Financing District within the Development District pursuant to the Tax Increment Act . The Authority also represents that pursuant to Minnesota Statutes, Section 469 . 093 , on March 28 , 1994 , the City Council adopted an enabling resolution and thereby established the Authority. Pursuant to Minnesota Statutes, Section 469 . 094 , Subdivision 2 , the City transferred to the Authority, and the Authority accepted from the City transfer of, the control, authority, and operation of the Development District, including the Tax Increment Financing District therein, thereby empowering the Authority to exercise all of the powers that the City could exercise with respect to the Development District, subject to the covenant and pledge by the Authority to perform the terms, conditions, and covenants of all bond indentures and other agreements executed for the security of any bonds issued and any other activities undertaken with respect to the Development District . (d) The Authority makes no representation, guarantee, or warranty, either express or implied, and hereby assumes no responsibility or liability as to the Development Property or its condition (whether regarding soils, pollutants, hazardous wastes or materials or otherwise) or that the Development Property will be suitable for the purposes or needs of the Developer. Section 2 . 2 . Representations, Covenants and Warranties by the Developer. The Developer represents, covenants, and warrants that : 334455.6 2-1 (a) The Developer is a general partnership duly organized, existing, and in good standing under the laws of the State of Minnesota. The Developer has full power and authority to enter into this Agreement and to perform its obligations hereunder and has taken or caused to be taken all actions necessary to make the Agreement, when executed and delivered by the Parties, the valid and binding agreement and obligation of the Developer, enforceable in accordance with its terms, except to the extent such enforceability may be limited by equitable principles and by laws affecting remedies and by bankruptcy, moratorium and insolvency laws and laws affecting creditors ' rights, heretofore or hereafter enacted. (b) If the Developer completes the Improvements, they shall be completed in accordance with the terms of this Agree- ment and all applicable local, State and federal laws and regulations (including, but not limited to, environmental, zoning, building code and public health laws and regulations) . (c) The Developer has received no notice or communication from any local, state or federal official to the effect (and, to the best of the Developer' s knowledge, there is no other basis upon which to believe) that the execution of this Agreement or the performance by the Developer under this Agreement is, may be or will be in violation of any local, state or federal law or regulation. (d) The Developer agrees and covenants that it will use its best efforts to obtain or cause to be obtained, in a timely manner, all required permits, authorizations, licenses and approvals, including environmental and zoning approvals for the Development Property and the Improvements, and that the Developer will meet and abide by, in a timely manner, all requirements and conditions of all such permits, authorizations, licenses, and approvals and of all applicable local, state, and federal laws and regulations which must be obtained or met before the Improvements may be lawfully undertaken and completed. (e) Neither the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby nor the fulfillment of or compliance with the terms and condi- tions of this Agreement is prevented or limited by or in conflict with or will result in a breach of the terms, conditions or provisions of the Developer' s partnership agreement or other organizational documents or of any evidences of indebtedness, agreement, or instrument of whatever nature to which the Developer is now a party or by which it or its property is bound or will constitute a default under any of the foregoing. (f) The Developer represents that it would not be able to undertake the Improvements in the reasonably foreseeable 334455.6 2-2 future without the assistance to be provided by the Authority under this Agreement . (g) The Developer currently owns the Development Property and represents that it consists of approximately 300, 038 square feet of land area. The Developer represents that the Development Property consists of tax parcel numbers 08-30-23-44-0002, -0012 and -0016 and 08-30-23-41-0012 and that, for property taxes payable in 1997, the tax capacity of - the Development Property is $22, 342 . (h) The Developer acknowledges that it has reviewed Minnesota Statutes, Section 116J. 991, and entitled "Public Assistance to Business; Wage and Job Requirements, " requiring that within 2 years of receiving the assistance provided pursuant to this Agreement, which for this purpose shall be deemed to be the 2 year period beginning on the date of the Certificate of Completion, the Developer shall comply with certain jobs and other obligations stated in the above- mentioned statute. The Developer hereby covenants to comply with said obligations, and the Parties agree that said goal level shall be the creation of at least 2 permanent full-time jobs within the applicable 2 year period. The Developer acknowledges and agrees that, as required by this statutory provision, failure to meet said goals will result in an Event of Default hereunder and in an obligation of the Developer to repay all of the assistance provided pursuant to this Agreement . The Developer further agrees that said jobs shall have an hourly wage of at least $6 . 50 per hour, inclusive of benefits . This subparagraph shall not be construed as imposing on the Developer any obligation beyond the scope and purpose of the above-mentioned statute to maintain or provide minimum employment and wage levels . The Developer further agrees to provide to the Authority in a timely manner, or to the State of Minnesota, as may be applicable, with such information and detail about the Improvements as may be necessary, including information relating to the employment and wage levels described in this subparagraph and the compliance with any reporting requirements imposed by with respect thereto on either the Authority or the Developer. (i) In practice, the Developer reasonably expects that upon the completion and full occupancy of the Improvements there could well be as many as 20 jobs provided, but this expectation is not intended by the Parties and shall not be construed as a performance covenant hereunder or a standard against which compliance with subsection (h) above or Minnesota Statutes, Section 116J. 991, shall be determined. 334455.6 2-3 ARTICLE III THE IMPROVEMENTS Section 3 . 1 . Undertakings of the Developer. Subject to Unavoidable Delays, the Developer agrees to exercise reasonable effort to cause the Improvements to be completed. The Authority acknowledges that the Developer' s ability to construct the Improvements is subject to current market conditions, including without limitation the availability of tenants, owners and financing and that the Developer is not obligated to cause the construction of the Improvements on a speculation basis . Pursuant to prior agreement of the Parties the Authority retained the services of Dahlen & Dwyer to prepare an appraisal (the "Appraisal" ) of the fair market value of the Development Property based on its present state and the type of use represented by the Improvements. The fair market value of the Development Property is determined to be $615, 000 pursuant to the Appraisal . The Developer shall pay or reimburse the Authority for the $1, 500 cost of the Appraisal . The Authority has provided the Developer with a copy of the completed Appraisal . Section 3 . 2 . Undertakings of the Authority. The Developer hereby represents to the Authority that the Developer has incurred and paid or will incur and pay the Development Costs, hereby defined to be the sum of (1) the current fair market value of the Development Property, being $615, 000, as indicated in the Appraisal; (2) the demonstrated costs of the public infrastructure improvements (the "Public Improvements") described in Exhibit D, but only if and to the extent the costs thereof are unreimbursed expenses of the Developer which are not repayable by special assessment or other means; and (3) the demonstrated and unreimbursed costs of the Developer incurred in making the necessary site improvements (the "Site Improvements") to the Development Property in connection with the completion of the Improvements, as described in Exhibit E. The Authority hereby agrees to defray the Developer' s Development Costs via the issuance of the EDA Note in the maximum principal amount equal to the lesser of (1) $1, 200, 000 or the (2) sum of the demonstrated costs of the Site Improvements and the Public Improvements (unless specifically assessed) plus the $615, 000 fair market value of the Development Property under the Appraisal . The EDA Note shall be issued to the Developer (or to such other person or entity as the Developer shall have theretofore designated in writing to the Authority as the initial registered owner of the EDA Note) , as registered owner thereof, substantially in the form of Exhibit B to this Agreement, the issuance of which EDA Note is hereby authorized and approved, subject to the following conditions : (a) The EDA Note shall be dated, issued and delivered on or as soon as practicable following the date of execution and 334455.6 3-1 delivery of this Agreement, provided no Event of Default shall have occurred and be at the time continuing. (b) As conditions to such reimbursement of Development Costs pursuant to the EDA Note, (i) the Authority shall have executed the Certificate of Completion, (ii) the Developer shall have submitted to the Authority such documentary proofs as shall be reasonably acceptable to the Authority demonstrating the final, as incurred, costs of the above- " described Public Improvements and Site Improvements, and (iii) there shall have been satisfied all of the conditions precedent thereto provided in Section 3 .4 . (c) Subject to the provisions of the EDA Note, the principal of and interest on the EDA Note shall in the aggregate be payable on each February 1 and August 1, commencing with the first August 1 or February 1 (as the case may be) following the date of the Certificate of Completion, and continuing through February 1, 2014 (the "Payment Dates") , in the respective amount or amounts described in this subsection. The sole source of funds available for payment of the Authority' s obligations under this Section and correspondingly under the EDA Note shall be the Available Tax Increments . The amounts otherwise payable on the EDA Note on each Payment Date shall be limited to the Available Tax Increments received by the Authority within the preceding 6 months . All payments made on the EDA Note shall be applied first to pay accrued and unpaid interest on the EDA Note and second toward payment of principal . All amounts of Tax Increments which are not Available Tax Increments are not subject to this Agreement, and the Authority retains full discretion as to any authorized application thereof, regard- less of whether the Available Tax Increments are sufficient to reimburse the Developer in full for the above-described costs . To the extent that the Available Tax Increments are insufficient, through the final Payment Date (February 1, 2014) , to pay all accrued and unpaid interest on and the principal of the EDA Note, said unpaid amounts shall then cease to be any debt or obligation of the Authority whatsoever. (d) The unpaid principal of the EDA Note shall bear simple, non-compounded interest from the date of the Certificate of Completion at 8 . 009s per annum. Interest shall be computed on the basis of a 360-day year consisting of 12 months of 30 days each. (e) The EDA shall not endeavor to issue the EDA Note so that the interest thereon shall be exempt from federal or State income taxation, and the Parties accordingly anticipate that the EDA Note will be a "taxable" obligation. 334455.6 3-2 (f) The EDA Note shall be a special and limited revenue obligation of the Authority and not a general obligation of the Authority, and only Available Tax Increments shall be used to pay the principal of and interest on the EDA Note . The EDA Note shall not be any obligation whatsoever of the City. (g) The Authority' s obligation to make payments on the EDA Note shall be conditioned upon the requirement that there shall not at the time have occurred and be continuing an Event of Default; provided, however, that if such Event of Default shall subsequently have been cured to the reasonable satisfaction of the Authority, such unpaid obligations shall thereupon be reinstated and thereby become due and payable . (h) The EDA Note shall be governed by and payable pursuant to the additional terms thereof, as set forth in Exhibit B . In the event of any conflict between the terms of the EDA Note and the terms of this Section 3 . 2, the terms of the EDA Note shall govern. (i) Following any termination of this Agreement by the EDA pursuant to Section 5 . 2 or 3 .4 (c) hereof, no further or unpaid amounts of the EDA Note shall then or thereafter be due and payable by the Authority under this Section or the EDA Note but shall thereupon be extinguished. (j ) The pledge of the Available Tax Increments made in this Section 3 .2 and in the EDA Note to payment of the EDA Note shall in all respects be junior and subordinate to the pledge of and need for the Tax Increments to provide timely payment of the debt service on the Bonds; provided, however, that the Authority does covenant to the Developer to apply all other Tax Increments (that is, all Tax Increments other than the Available Tax Increments) to such purposes and to resort to Available Tax Increments only in the event that said other increments are insufficient for such debt service purposes . Section 3 . 3 . Construction Plans . (a) The Authority shall have no obligation to the Developer to take any action pursuant to any provision of this Agreement until such time as the Developer has submitted Construction Plans to the Authority, and the Authority has approved such Construction Plans. The Authority shall approve the Construction Plans if it determines that they conform to the applicable provisions of this Agreement; provided, however, that any such approval of the Construction Plans pursuant to this Section 3 . 3 shall constitute approval for the purposes of this Agreement only and shall not be deemed to constitute approval or waiver by the Authority with respect to any building, zoning or other ordinances or regulation, and shall not be deemed to be sufficient plans to serve as the basis for the issuance of a building permit if the 334455.6 3-3 Construction Plans are not as detailed or complete as the plans otherwise required for the issuance of a building permit . Such Construction Plans must be rejected in writing by the Authority within 10 working days of submission or shall be deemed to have been approved by the Authority. Any rejection of the Construction Plans shall state in writing the Authority' s reasons therefor. If the Authority rejects the Construction Plans in whole or in part, the Developer may submit new or corrected Construction Plans within 30 days after receipt by the Developer of written notification of the rejection, accompanied by a written statement of the Authority specifying the respects in which the Construction Plans submitted by the Developer fail to conform to the requirements of this Section 3 . 3 . The provisions of this Section 3 . 3 relating to approval, rejection and resubmission of the Construction Plans shall continue to apply until the Construction Plans have been fully approved by the Authority. Approval of the Construction Plans by the Authority shall not relieve the Developer of any obligation to comply with the provisions of this Agreement or the provisions of applicable federal, state and local laws, ordinances and regulations, and approval of the Construction Plans by the Authority shall not be deemed to constitute a waiver of any Event of Default . (b) If the Developer desires to make any material change in the Construction Plans after their approval by the Authority, the Developer shall submit the proposed change to the Authority for its approval or rejection pursuant to this Section. A proposed change in the Construction Plans shall be deemed approved unless rejected by the Authority in writing within 10 working days of submission thereof with a statement of the Authority' s reasons for such rejection. Section 3 .4 . Certificate of Completion. (a) Promptly after completion of the Improvements in accordance with the provisions of this Agreement, and upon written request made to the Authority, the Authority will execute the Certificate of Completion in the form attached hereto as Exhibit C, which shall then be a conclusive determination of satisfaction and termination of the agreements and covenants in this Agreement with respect to the completion of the Improvements . The following shall be conditions precedent to the Authority' s obligation to execute the Certificate of Completion: (i) There shall exist no Event of Default hereunder, and the Improvements shall have been completed in substantial conformity to the terms of this Agreement; (ii) The City shall have issued a Certificate of Occupancy for the Improvements . 334455.6 3-4 (b) If the Authority determines that it cannot execute the Certificate of Completion, it shall, within 20 days after written request therefor, provide a written statement indicating in adequate detail why it cannot do so and also indicating what measures or acts it will be necessary to be taken or performed in order to permit execution of the Certificate of Completion. (c) If the Developer does not substantially complete the Improvements by December 31, 1999, the Authority may terminate this Agreement upon 30 days prior written notice to the Developer. Upon such termination, neither Party shall have any further right, title, obligation or interest hereunder, except as provided pursuant to Section 7 . 2 . 334455.6 3-5 ARTICLE IV PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER; INDEMNIFICATION Section 4 . 1 . Prohibition Against Transfer of Property and Assignment of Agreement . The Developer represents and agrees that prior to the execution of the Certificate of Completion: (a) Except only by way of security for the purpose of obtaining financing necessary to enable the Developer or any successor in interest to, the Development Property, or any part thereof, to perform its obligations with respect to the Improvements under this Agreement, and any other purpose authorized by this Agreement, the Developer has not made or created and will not make or create or suffer to be made or created any total or partial sale, assignment, conveyance, or lease, or any trust or power, or any transfer in any other mode or form, of or with respect to the Agreement or the Development Property or any part thereof or any interest therein, or any contract or agreement to do any of the same, except for the leasing of portions of the Improvements in the ordinary course of the Developer' s business of developing and leasing facilities such as the Improvements, without the prior written approval given by the Authority in its sole discretion; provided, however, if the Developer wishes to assign this Agreement, the Authority will not unreasonably withhold approval thereof if the conditions stated in subsection (b) below are met; and provided further that this Section 4 . 1 shall not prohibit or impose conditions upon the Developer' s execution of an agreement for the sale of the Development Property as long as said agreement provides that the closing and actual conveyance of the Development Property thereunder may not occur until after the execution of the Certificate of Completion, but the Developer shall not be released from its obligations hereunder except as provided in Section 4 . 2 (e) . (b) The Authority shall be entitled to require, except as otherwise provided in the Agreement, as conditions to any such approval that : (i) Any proposed transferee shall have the qualifications and financial responsibility, in the reasonable judgment of the Authority, necessary and adequate to fulfill the obligations undertaken in this Agreement by the Developer. (ii) Any proposed transferee, by instrument in writing satisfactory to the Authority, shall, for itself and its 334455.6 4-1 successors and assigns, and expressly for the benefit of the Authority, have expressly assumed all of the obligations of the Developer under this Agreement and agreed to be subject to all the conditions and restrictions to which the Developer is subject unless the Developer agrees to continue to fulfill those obligations . In addition, the Authority may require the Developer and/or the transferee to join in such agreements as the Authority may reasonably determine to be necessary to clarify the respective rights and obligations of the interested parties, e .g. , to obtain a waiver and acknowledgement from the transferee if that transferee is not also becoming the registered owner of the EDA Note . (iii) There shall be submitted to the Authority for review and prior written approval all instruments and other documents involved in effecting the transfer of any interest in this Agreement or the Development Property; provided that the purposes of said review and approval shall be only to ascertain that said documents do not contravene the terms of this Agreement and sufficiently provide for the intended and permitted transfer. Specifically, but without limitation, the economics of the transfer, as between the Developer and its transferee, shall not be a basis for the Authority to withhold consent thereto. Section 4 . 2 . Release and Indemnification Covenants . (a) The Developer releases from and covenants and agrees that the Authority and the governing body members, officers, agents, including its independent contractors, consultants and legal counsel, servants and employees thereof (hereinafter, for purposes of this Section, collectively the " Indemnified Parties") shall not be liable for and agrees to indemnify and hold harmless the Indemnified Parties against any loss or damage to property or any injury to or death of any person occurring at or about or resulting from any defect in the Improvements, provided (1) that the foregoing indemnity shall not apply to any liability arising pursuant to an act or omission of any of the Indemnified Parties and (2) that the claim or matter against which such indemnification is sought is based upon the acts of the Developer or others acting on its behalf or under its direction or control . (b) Except for any willful misrepresentation or any willful or wanton misconduct of the Indemnified Parties, the 334455.6 4-2 Developer agrees to protect and defend the Indemnified Parties, now and forever, and further agrees to hold the aforesaid harmless from any claim, demand, suit, action or other proceeding whatsoever by any person or entity whatsoever arising or purportedly arising from this Agreement, or the transactions contemplated hereby or the acquisition, construction, installation, ownership, and operation of the Improvements, provided (1) that this indemnification shall not apply to the warranties made or obligations undertaken by the Authority in this Agreement and (2) that the claim or matter against which such indemnification is sought is based upon the acts of the Developer or others acting on its behalf or under its direction or control . (c) All covenants, stipulations, promises, agreements and obligations of the Authority contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the Authority and not of any governing body member, officer, agent, servant or employee of the Authority. (d) This Agreement shall not create and shall not be construed to create any partnership, joint venture, agency or employment relationship between the Parties . (e) Notwithstanding the foregoing to the contrary, after the execution of the Certificate of Completion, if the Developer transfers the Development Property to a third party and said third party accepts the obligations of the Developer hereunder, and if the conditions stated in Section 4 . 1 (b) are satisfied, the Developer shall, in an agreement with the Authority providing the same, be released from all obligations and liabilities under this Section 4 . 2 , except for all liabilities which may arise with respect to actions taken or circumstances existing prior to the effective date of said release . 334455.6 4-3 ARTICLE V EVENTS OF DEFAULT Section 5 .1 . Events of Default Defined. The following are Events of Default under this Agreement : Failure in the substantial - observance or performance of any covenant, condition, obligation, or agreement on the part of the Developer to be observed or performed under this Agreement . An Event of Default shall also include any occurrence which would with the passage of time or giving of notice become an Event of Default as defined hereinabove . Section 5 .2 . Remedies on Default . Whenever any Event of Default occurs, in addition to all other remedies available to the Authority at law or in equity or elsewhere in this Agreement, (1) the Authority may suspend its performance under the Agreement until it receives assurances from the Developer, deemed adequate by the Authority, that the Developer has cured its default and will continue its performance under the Agreement and (2) , after provision of 30 days written notice from the Authority to the Developer of the Event of Default, but only if the Event of Default has not been cured within said 30 days, or if the Event of Default cannot be cured within 30 days, the Developer does not provide assurances to the Authority reasonably satisfactory to the Authority that the Event of Default will be promptly cured, then the Authority may terminate this Agreement . Section 5 .3 . No Remedy Exclusive . No remedy herein conferred upon or reserved to the Authority is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient . Section 5 .4 . No Additional Waiver Implied by One Waiver. If any agreement contained in this Agreement should be breached by any Party and thereafter waived by any other Party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other concurrent, previous or subsequent breach hereunder. 334455.6 5-1 Section 5 . 5 . Default by Authority; Specific Performance . If the Authority is in default of its obligations under this Agreement, the Authority agrees that the Developer shall have the remedy of specific performance, in addition to such other remedies as the Developer may have administratively, at law or in equity. In such event, the Developer may suspend its performance hereunder until it receives assurances reasonably satisfactory to the Developer that the default of the Authority will be cured as soon as reasonably possible. 334455.6 5-2 ARTICLE VI Additional Provisions Section 6 . 1 . Titles of Articles and Sections. Any titles of the several parts, Articles and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded -' in construing or interpreting any of the provisions hereof . Section 6 . 2 . Notices and Demands . Except as otherwise expressly provided in this Agreement, a notice, demand or other communication under the Agreement by either Party to the other shall be sufficiently given or delivered if sent by regular mail, postage prepaid, or delivered personally or telecopied, (a) in the case of the Developer, to Michael Investments, 2665 Long Lake Road, Suite 120, Roseville, Minnesota 55113 , Attention: Jeffrey L. Nielsen, General Partner; with a copy to Glenn Bergman, Peterson, Fram & Bergman, 300 Princeton Bank Building, 50 East Fifth Street, St . Paul, Minnesota 55101-1197; and (b) in the case of the Authority, to the Mounds View Economic Development Authority at the Mounds View City Hall, 2401 Highway 10, Mounds View, Minnesota 55112, Attention: Mounds View EDA Executive Director. or at such other address with respect to either such Party as that Party may, from time to time, designate in writing and forward to the other Party as provided in this Section. Section 6 . 3 . Counterparts . This Agreement may be executed in any number of counterparts, each of which shall constitute an original hereof and all of which shall constitute one and the same instrument . Section 6 .4 . Law Governing. The parties agree that this Agreement shall be governed and construed in accordance with the laws of the State of Minnesota. Section 6 . 5 . Time of the Essence . Time shall be of the essence in this Agreement . Section 6 . 6 . No Third-Party Beneficiaries . There shall, as against the Authority, be no third-party beneficiaries to this Agreement . More specifically, the Authority enters into this Agreement, and intends that the consummation of the Authority obligations contemplated hereby shall be, for the sole and exclusive benefit of the Developer, and notwithstanding the fact that any other "persons" may ultimately participate in or have an interest in the Project, or any portion thereof, the Authority does not intend that any party other than the Developer shall have, as alleged third party beneficiary or otherwise, any rights or 334455.6 6-1 interests hereunder as against the Authority, and no such other party shall have standing to complain of the Authority' s exercise • of, or alleged failure to exercise, its rights and obligations, or of the Authority' s performance or alleged lack thereof, under this Agreement . 334455.6 6-2 ARTICLE VII TERMINATION OF AGREEMENT.; EXPIRATION Section 7 . 1. Termination. The Authority may terminate this Agreement as provided herein, and otherwise this Agreement shall terminate upon payment of the EDA Note in accordance with its terms and the discharge of all of the Parties ' other respective obligations hereunder, but no such termination shall terminate any indemnification or other rights or remedies arising hereunder due to any Event of Default which occurred prior to such termination. Section 7 . 2 . Sections to Survive Termination. Section 4 . 2 shall, in addition to the other surviving provisions referenced in Section 7 . 1, survive the termination of this Agreement . IN WITNESS WHEREOF, the Authority has caused this Agreement to be duly executed in its name and behalf by its duly authorized representatives, and the Developer has caused this Agreement to be duly executed in its name and behalf by its duly authorized representatives on or as of the date first above written. MOUNDS VIEW ECONOMIC DEVELOPMENT AUTHORITY By President By Executive Director MICHAEL INVESTMENTS By Its By Its [Execution page of Development Assistance Agreement with the Mounds View Economic Development Authority. ] 334455.6 7-1 EXHIBIT A DEVELOPMENT PROPERTY The Development Property consists of the following described properties, all located in the City of Mounds View, Ramsey County, Minnesota: Current Tax Parcel Nos . 08-30-23-41-0012, 08-30-23-44-0002, 08-30-23-44-0012 and 08-30-23-44-0016, said parcels constituting the following described property: Lot 3 , Block 3, PROGRAMMED LAND FIRST ADDITION Lot 2, Block 1, PROGRAMMED LAND SECOND ADDITION That part of Outlot A, MOUNDS VIEW BUSINESS PARK, lying east of a line beginning at a point on the south line of said Outlot A, said point being South 89 degrees 19 minutes 21 seconds East, assumed bearing, 409 . 00 feet from the southwest corner of said Outlot A; thence North 31 degrees 43 minutes 48 seconds East 19 . 26 feet to the north line of said Outlot A and said line there terminating; That part of the south 5 acres of Lot 2 , Block 2, PINECREST ADDITION lying east of a line beginning at a point on the north line of said south 5 acres, said point being 414 .36 feet east of the northwest corner of said south 5 acres; thence south at an angle of 90 degrees 00 minutes 00 seconds right to the south line of said Lot 2 , and said line there terminating. [NOTE: Said parcels to be replatted as Lot 1, Block 1, MOUNDS VIEW BUSINESS PARK EAST 2ND ADDITION] 334455.6 A-1 EXHIBIT B FORM OF EDA NOTE No. R-1 UNITED STATES OF AMERICA STATE OF MINNESOTA COUNTY OF RAMSEY MOUNDS VIEW ECONOMIC DEVELOPMENT AUTHORITY TAXABLE TAX INCREMENT REVENUE NOTE OF 1999 (BUILDING "N" PROJECT) [1] The Mounds View Economic Development Authority (the "EDA") hereby acknowledges itself to be indebted and, for value received, hereby promises to pay to or its registered assigns (the "Registered Owner" ) , but only in the manner, at the times, from the sources of revenue, and to the extent hereinafter provided, the Principal Amount of this Note (as defined in paragraph [2] hereof) and to pay interest on the unpaid portions of the Principal Amount of this Note at the rate of interest of eight and no hundredths percent (8 . 00%) per annum. Interest shall accrue from the date of the Certificate of Completion and shall be computed on the basis of a 360-day year consisting of 12 30-day months . This Note is the "EDA Note" described and defined in that certain Development Assistance Agreement, dated as of , 1999 (as the same may be amended from time to time, the "Development Agreement") , between the EDA and Michael Investments, a Minnesota general partnership, as the initial Developer under the Development Agreement . Each capitalized term which his used but not otherwise defined in this Note shall have the meaning given to that term in the Development Agreement . [2] The Principal Amount of this Note shall be the lesser of (1) $1, 200, 000 or (2) the $615, 000 appraised value of the Development Property determined pursuant to the Appraisal plus the amounts of costs for both the Public Improvements (unless specially assessed) and the Site Improvements, all as completed in the subsequent certification thereof which appears hereinafter in this Note. [3] Subject to the terms hereof, amounts due on this Note shall be payable on each February 1 and August 1, commencing on the first August 1 or February 1 (as the case may be) following the date of the Certificate of Completion and continuing through February 1, 2014 (the "Payment Dates") . 334455.6 B-1 [4] On each Payment Date (or, if not a business day of the EDA, the first business day thereafter) the EDA shall pay by check or draft mailed to the person that was the Registered Owner of this Note at the close of the last business day of the EDA preceding such Payment Date an amount equal to the lesser of (1) the Available Tax Increments received by the EDA within the 6-month period preceding said Payment Date and (2) the sum of (i) the accrued and unpaid interest hereon and (ii) the aggregate amount of the unpaid principal of this Note . The EDA shall have the option at any time to prepay in whole or in part the principal amounts of this Note at par plus accrued interest . All payments made by the EDA under this Note shall be applied first to pay accrued and unpaid interest on this Note and second toward payment of principal hereof . [5] This Note shall terminate and be of no further force and effect on any date upon which the EDA shall have terminated the Development Agreement, on the last Payment Date (February 1, 2014) following payment thereon of the Available Tax Increments then due, or on the date that all principal and interest payable hereunder shall have been paid in full, whichever occurs earliest . [6] The pledge of Available Tax Increments to the payment of this Note is junior and subordinate to the need and use thereof for payment of the Bonds, all as defined and described in the Development Agreement . [7] The EDA makes no representation or covenant, express or implied, that the revenues described herein will be sufficient to pay, in whole or in part, the amounts which are or may otherwise become due and payable hereunder. Any amounts which remain unpaid on this Note following the final Payment Date (February 1, 2014) shall no longer be a debt or obligation of the EDA whatsoever. [8] The EDA' s payment obligations hereunder shall be further conditioned on the fact that there shall not at the time have occurred and be continuing an Event of Default under the Development Agreement, and, further, if pursuant to the occurrence of an Event of Default under the Development Agreement the EDA elects to terminate the Development Agreement, the EDA shall have no further debt or obligation under this Note whatsoever. Reference is hereby made to the provisions of the Development Agreement for a fuller statement of the obligations of the Developer and of the rights of the EDA thereunder, and said provisions are hereby incorporated by reference into this Note to the same extent as though set out in full herein. The execution and delivery of this Note by the EDA, and the acceptance thereof by the Developer or its designee, as the initial Registered Owner hereof, shall conclusively establish this Note as the "EDA Note" (and shall conclusively constitute discharge of the EDA' s obligation to issue and deliver the same) under the Development Agreement . 334455.6 B-2 [9] This Note is not any obligation of any kind whatsoever of any public body, except that this Note is a special and limited revenue obligation but not a general obligation of the EDA and is payable by the EDA only from the sources and subject to the qualifications and limitations stated or referenced herein. Neither the full faith and credit nor the taxing powers of the EDA are pledged to or available for the payment of the principal of or interest on this Note, and no property or other asset of the EDA, save and except the above referenced Available Tax Increments, is or shall constitute a source of payment of the EDA' s obligations hereunder. [10] This Note is issued by the EDA in aid of financing a project pursuant to and in full conformity with the Constitution and laws of the State of Minnesota, including Minnesota Statutes, Sections 469 . 174 through 469 . 179 . [11] This Note may be assigned but upon such assignment the assignor shall promptly notify the EDA thereof in writing, and the assignee shall surrender this Note to the EDA either in exchange for a new fully registered note or for transfer of this Note on the registration records for the Note maintained by the EDA. Each such assignee shall take this Note subject to the foregoing conditions and subject to all provisions stated or referenced herein. [12] This Note has been issued as a taxable and not as a tax- exempt obligation, and the EDA makes no representation, express or implied, that the interest on this Note is or may be excludable from gross or taxable net income of the Registered Owner for income tax purposes . [13] IN WITNESS WHEREOF, the Mounds View Economic Development Authority has caused this Note to be executed by the manual signatures of its President and its Executive Director and has caused this Note to be issued and dated as of 1999 . President Executive Director 334455.6 B-3 CERTIFICATION OF REGISTRATION It is hereby certified that the foregoing Note was as of the latest date listed below registered in the name of the last Registered Owner noted below, and that, at the request of said Registered Owner of this Note, the undersigned has as of said applicable date registered this Note as to principal and interest on the Note in the name of such Registered Owner, as indicated in the registration blank below, on the books kept by the undersigned for such purposes . DATE OF SIGNATURE OF EDA NAME OF REGISTERED OWNER REGISTRATION EXECUTIVE DIRECTOR , 1999 19 , 19 Subsequent Certification of Costs of Public Improvements and Site Improvement . The undersigned Executive Director of the Mounds View Economic Development Authority, pursuant to Section 3 . 2 of the Development Agreement, hereby certifies that the Developer has certified, and the Authority has accepted certification of a total of $ of costs of Site Improvements and a total of $ of costs of Public Improvements . I further certify that pursuant to said provisions of the Development Agreement and the applicable terms of this Note, the finally-determined Principal Amount of this Note is Dated: Executive Director, Mounds View Economic Development Authority 334455.6 B-4 EXHIBIT C CERTIFICATE OF COMPLETION WHEREAS, the Mounds View Economic Development Authority (the "Authority" ) and Michael Investments, a Minnesota general partnership (the "Developer" ) , have executed a Development Assistance Agreement, dated , 1999 (the "Development Agreement" ) , with respect to the completion by the Developer of certain improvements Athe "Improvements" ) , specifically, an approximately 97, 463 square foot building (or an approximately 69, 582 square foot building constructed by the Developer as office/flex/service facilities) on certain land (the "Development Property" ) described in the Development Agreement; and WHEREAS, said Developer has to the present date substantially performed its undertakings under the Development Agreement in a manner deemed sufficient by the Authority to permit the execution of this certificate pursuant to Section 3 .4 of the Development Agreement : NOW, THEREFORE, this is to certify that the Improvements have been completed on the Development Property in substantial conformance with the terms of the Development Agreement . MOUNDS VIEW ECONOMIC DEVELOPMENT AUTHORITY By Its Dated: , 19 334455.6 0-1 EXHIBIT D PUBLIC IMPROVEMENTS Public Improvements include the following types of expenses for the Development Property incurred by the Developer. Public tight-of-way costs for Program Avenue improvements (adjacent to Development Property), including: Estimated Cost Street Lighting $ 8,000 Entry/Driveway Aprons 8,000 Curbs and Gutter(north side of Program Avenue only) 4,000 Traffic Control Signs 1,000 Program Avenue Excavation and Repair 5,000 Landscaping and Irrigation within Public Right-of-Way 20,000 Water Main and Hydrants to serve Development Property 55,000 Storm Sewer to serve Development Property 3,000 (Connection at Program Avenue) Engineering and Testing Fees for Public Improvements to serve Development Property 5,000 Administrative Costs: Supervision 6,000 Inspection Fees 4,000 Permits 2,000 Surveys 2,000 Total Estimated Cost $123,000 Rehavi p(wA2)1=6 sroaw,n.drs EXHIBIT E SHE IMPROVEMENTS Site Improvements include the following types of expenses for the Development Property incurred by the Developer: Estimated Cost Erosion Control/Silt Fence $ 5,000 Site Clearing and Tree Removal 5,000 Soil Correction 25,000 Grading/Backfilling/Compaction of Fill 90,000 Sanitary Sewer 35,000 Ponding and Storm Sewer System 90,000 Retaining Walls 106,000 Paving- Include Costs of Base Construction excluding Asphalt 56,000 Landscaping and Irrigation Sprinkler System 60,000 Project Identification Signage 15,000 Soil Testing and Location Surveys 14,000 Environmental Costs,Assessments, Work Programs, ** Abatement/Clean-up Architectural/Design Fees (Site Only) 4,000 Engineering and Inspection Fees(Site Only) 12,000 Site Work Permit Fees 8,000 Total Estimated Cost $525,000 **No environmental issues or remediation costs are anticipated at this time. E b.vAo(RlAa)taros srw.a,a.a s INCREMENT PAYMENT PRINCIPAL INTEREST BALANCE PAYMENT DATES 12/31/99 $0 $0 $0 $1,200,000 02/01/2000 $0 $0 $8,000 $1,208,000 08/01/2000 $0 $0 $48,320 $1,256,320 02/01/2001 $0 $0 $50,253 $1,306,573 08/01/2001 $54,274 $2,011 $52,263 $1,304,562 02/01/2002 $54,274 $2,092 $52,182 $1,302,470 08/01/2002 $54,274 $2,175 $52,099 $1,300,295 02/01/2003 $54,274 $2,262 $52,012 $1,298,033 08/01/2003 $54,274 $2,353 $51,921 $1,295,680 02/01/2004 $54,274 $2,447 $51,827 $1,293,233 08/01/2004 $54,274 $2,545 $51,729 $1,290,689 02/01/2005 $54,274 $2,646 $51,628 $1,288,042 08/01/2005 $54,274 $2,752 $51,522 $1,285,290 02/01/2006 $54,274 $2,862_ $51,412 $1,282,427 08/01/2006 $54,274 $2,977 $51,297 $1,279,451 02/01/2007 $54,274 $3,096 $51,178 $1,276,355 08/01/2007 $54,274 $3,220 $51,054 $1,273,135 02/01/2008 $54,274 $3,349 $50,925 $1,269,786 08/01/2008 $54,274 $3,483 $50,791 $1,266,304 02/01/2009 $54,274 $3,622 $50,652 $1,262,682 08/01/2009 $54,274 $3,767 $50,507 $1,258,915 02/01/2010 $54,274 $3,917 $50,357 $1,254,998 08/01/2010 $54,274 $4,074 $50,200 $1,250,924 02/01/2011 $54,274 $4;237 $50,037 $1,246,686 08/01/2011 $54,274 $4,407 $49,867 $1,242,280 02/01/2012 $54,274 $4,583 $49,691 $1,237,697 08/01/2012 $54,274 $4,766 $49,508 $1,232,931 02/01/2013 $54,274 $4,957 $49,317 $1,227,974 08/01/2013 $54,274 $5,155 $49,119 $1,222,819 02/01/2014 $54,274 $5,361 $48,913 $1,217,458 TOTAL $1,411,124 $89,115 $1,428,582 Assumptions: 1. Building complete by 12/31/99 2. Eligible costs equal $1,200,000 3. 8 % interest rate 4. Interest calculated on the basis of a 360-day year consisting of 12 30-day months. 5.New 69,582 square foot office flex bulding would generate taxes equal to $2.15 per sq. ft. 6. Base tax capacity equals $22,342. 7. New tax capacity equals $115,281 8. Local tax capacity rate equals 129.771% 9. Tax increments equals $120,608 per year 10. Available tax increments equals 90% total tax increments which equals $108,547 4 April 1, 1999 To: Honorable Mayor and City Council From: Chuck Whiting, City Administrator Re: Assistant City Administrator Position I would like to propose an upgrade from the city's Assistant to the City Administrator position to Assistant City Administrator position. There are several reasons for this change. First, I have asked this position to take on more responsibilities that should be reflected in the job description. Council will note the underlined portions of the existing job descriptions to be additional responsibilities for the position. My overall objectives are to make this position comparable to other department head positions, formalize the role of acting administrator in the city administrator's absence and instill a true leadership role in the organization from this position rather than a simple extension of the administrator's office. Second, I would not be considering this if it were not for the fact that Carl Schmidt has demonstrated her abilities to warrant considering assigning additional responsibilities to her within the organization. While these changes certainly can be considered to benefit her with additional compensation and career development, I believe the expanded role benefits the organization and justifies meeting the added expense. A little background may be helpful for new council members on past roles now assumed by Cari's position. Prior to my coming to Mounds View,the city employed Tim Cruikshank, first as an administrative intern and eventually as an assistant to the city administrator. Mr. Cruikshank left to become city administrator for Lauderdale, and has since gone on to the same position for Minnetrista. After leaving, Dawn Weitzel was taken on in the administrative intern position and was in that position upon my hiring three years ago. Cathy Bennett was the city's economic development coordinator at that time,but was utilized as acting city administrator for a short time during the interim search in part due to the absence of a finance director and a community development director. While akin to making Kevin Carroll the acting administrator today, I believe Cathy was utilized much due to her leadership abilities as much as anything, but it is unclear why the Council at that time did not place a department head in that role. At the end of 1996 in looking at the 1997 budget, I concluded to let Ms. Weitzel go, meaning no intern position and formalize Cathy Bennett's role by upgrading her position and pay to economic development director with a greater role in general city administration under the city administrator. With Weitzel not being replaced, her personnel administrative duties were moved to Lynnette Morgan whose position was changed to human resources coordinator with a minor upgrade in pay. At the end of 1997, both Morgan and Bennett left and I moved to go back to the economic development coordinator position which resulted in the hiring of Mr. Carroll, and to combine the human resources administrative duties with administrative duties resulting the in the hiring of Ms. Schmidt as assistant to the city administrator. Also during this time I split the city's administrative functions out from the finance department and placed them under the city administrator (where they were when I came here) and essentially managed the department through Cari. I'll spare more details other than to add that several additional positions have been impacted directly or indirectly as we have tried to match skills with needs, and that all of the employees who left went on to better positions including Ms. Weitzel. Some specifics to note in the job description include acting as the administrator in the administrator's absence, acting as an in-house legal coordinator with hopes of reducing our city attorney costs, acting as a more direct coordinator of city clerking functions being the management of city actions and documents, acting in a coordinating manner for the dissemination of city business information, and taking on higher leadership expectations. Another aspect of some of the changes to note is that will Tracy Sanchez having left, her replacement will work directly and essentially learn the position responsibilities from Cari. Some additional work will be needed in the future, specifically during a future comparable worth pointing evaluation. I do not think it is necessary to go through a full pointing evaluation at this time. In looking at a few other cities, it appears that assistants range between the high 400s to the upper 600s. I think a more practical concern would be to view the going rate for other positions and assign a compensation Mounds View can afford. It so happens two other communities are looking for assistants currently and I think being relative to the Roseville position is more in line with Mounds View's abilities. I propose simply adding 5%to the top of the assistant to the city administrator position with step increases following at additional 5% increments. Included in your packet is the current 1999 pay plan. Ms. Schmidt is scheduled to go to step 5 in her current position this month. Assistant City Administrator Compensation Range (proposed) Step 1 Step 2 Step 3 Step 4 Step 5 48,798 51,357 54,060 56.905 59,900 I would propose starting Schmidt at Step 1 the first full pay period after council approval and moving to Step 2 at the first of 2000 with annual adjustments thereafter. The adjustment for the increase in the 1999 budget would be made from contingency funds, essentially the difference between Step 1 of this position versus Step 5 of her current position proportionate to the remainder of this year. If council agrees to this change, a resolution will be drafted adopting the new position and the accompanying compensation changes. POSITION ACCOUNTABILITY WRITE-UP POSITION TITLE: Assistant t- City Administrator DEPARTMENT: Administration ACCOUNTABLE TO: City Administrator PRIMARY OBJECTIVE OF POSITION To assist the City Administrator with the duties of that office, assume responsibilities of the City Administrator in his/her absence, and participate with the City Administrator in the development and direction of administrative services at a department head level of authority. Pprovide adminstrative assistance to the City Administrator in implementing the overall programs and policies of the City Council . MAJOR AREAS OF ACCOUNTABILITY 1 . Assist City Administrator in day-to-day activities. Act as City Administrator in City Administrator' s absence . 2 . Assist in the coordination of multi-department activities to ensure effective working relationships . 3 . Act as in-house legal services coordinator for nonprosecutorial legal matters . Position is to work with departments in the review of draft ordinances, legal agreements, personnel agreements and administrative processes, and other legal oriented work prior to referral to the city attorney. This position will coordinate with the City Administrator on the level of legal expertise needed in such matters prior to referral to the city attorney. 34 . Act as department director for the Administration Department including direct supervision of personnel and direction of department administered programs . *5 . Act as Personnel Director for the City including responsibilities for: Develop and implement personnel policies Coordinate new employee hiring Coordinate employee evaluations Participate in labor negotiations and contract administration Coordinate City organization development and employee training activities Ensure Affirmative Action/EOE compliance Pay Equity Overseeing and maintaining all city personnel records 6 . Act as Deputy Clerk for the City and in this capacity oversee the City' s records maintenance for ordinances, resolutions, minutes, appointments and related official actions either directly or through staffing assignments . 57 . Act as Coordinate City' s Mmanagement information 5-systems Loord.hiator efforts consisting of overseeing city newsletter production, public notices, Internet information, telephone system and other city-to-public interactive systems either directly or through staffing assignments . �8 . Assist in the preparation of agenda materials for council meetings and Council minutes . -9 . Carry out specialized assignments as directed by the City Administrator and carry them to successful completion. 8-10 . Assist City Admininstrator and department directors where needed in the annual budget - rocess . 9 . - . . ;- . - .. - Attend and monitor City Council meetings . EXAMPLES OF PERFORMANCE CRITERIA 1 . Work is performed in a timely and thorough manner. 2 . Demonstrates initiative and develops fresh ideas in solving problems presented. 3 . Demonstrates an ability to effectively handle a wide variety of city projects and problems in an effective and sound manner. 4 . Maintains a positive image of the city through effective handling of problems and sound coordination of multi- department programs 5 . Anticipates communication needs of public Council and staff and effectively acts to meet those needs . 6 . Develops a work schedule for carrying out assigned tasks and meet the schedule in a timely manner. 7 . Demonstrates and assumes leadership attributes in work areas as assigned herein and in additional areas as assigned by the City Administrator in a manner expected of a department director. QUALIFICATIONS Minimum requirement is a Masters Degree in public administration with a least two years of experience in local government . Must be able to develop and maintain effective working relationships with a wide variety of city personnel as well as the general public . Must have significant computer hardware and software experience . Must be able to communicate effectively orally and in writing-, make public presentations for City Council and staff reports and in similar public speaking and presentation situations . Must have demonstrated management level experience and/or abilities in similar positions with other government or business organizations . SUPERVISION OF OTHERS Seczetary All Administration Department personnel . DESIRED MINIMUM QUALIFICATIONS Education and Experience : (A) Graduation from a college or university with a bachelor' s degree in public administration, political science, human resources, business management, or a closely related field, and (B) Two (2) years of related experience; or (C) Any equivalent combination of education and progressively responsible experience, with additional work experience substituting for the required education on a year for year basis . Necessary Knowledge, Skills and Abilities : (A) Working knowledge of the principles and practices of modern public administration; working knowledge of human resource administration; Working knowledge of modern records management techniques; (B) Skill in operation of listed tools and equipment; (C) Ability to accurately record and maintain records; Ability to establish and maintain effective management style workiiiy relationships with employees, supervisors, other departments, officials and the public; Ability to communicate effectively verbally and in writing; SPECIAL REQUIREMENTS : None TOOLS AND EQUIPMENT USED Typewriter, personal computer, including word processing, spreadsheet and data base software; mainframe computer terminal; 10-key calculator; phone; copy machine; fax machine . PHYSICAL DEMANDS The physical demands described here are representative of those that must be met by an employee to successfully perform the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions . While performing the duties of this job, the employee is frequently required to sit and talk or hear, use hands to finger, handle, feel or operate objects, tools, or controls; and reach with hands and arms . The employee is occasionally required to walk. The employee must occasionally lift and/or move up to 25 pounds . Specific vision abilities required by this job include close vision and the ability to adjust focus . WORK ENVIRONMENT The work environment characteristics described here are representative of those an employee encounters while performing the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions . The noise level in the work environment is usually quiet . The holder of this position is expected to work hours beyond the normal work day, including evening meetings and weekends if necessary. The holder will be in frequent situations requiring an effective level of interpersonal relations skills, the ability to cope with stress and maintain a professional demeanor. SELECTION GUIDELINES Formal application, rating of education and experience; oral interview and reference check; job related tests may be required. The duties listed above are intended only as illustrations of the various types of work that may be performed. The omission of specific statements of duties does not exclude them from the position if the work is similar, related or a logical assignment to the position. The job description does not constitute an employment agreement between the employer and employee and is subject to change by the employer as the needs of the employer and requirements of the job change . 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Administration: 1 Clerk-Administrator 1.00 1.00 1.00 1.00 1,00 1.00 1.00 1.00 1.00 1.00 1.00 1.001 1.00 1.00 Assistant 1.00 1.00 1.00 1.00 1.00 1,00 1.00 1.00 Intern ( 1.00 0.75 0.00 Economic Development Director 1.00 0.00 Department secretary 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1,00, 1.00 1.00 Receptionist 0.50 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 0.00 0.00 Clerk/HR Administrative Aide 0.50 0.50 0.50 0.50 0.50 0.50 1.00 1.00 1.00 0.00 Custodian 0.37 0.45 0.40 0.40 0.40 0.40 0.40 Subtotal 2.50 3.00 3.00 3.00 3.50 4.50 4.50 4.87 4.95 5.90 6.15 6.40 3.40 3.40 Community Development: Comm Dev Coordinator 1.00 1.00 1.00 1.00 1.00 1.00 Economic Development Coordinator 1.00 1.00 1.00 0.00 1.00 1.00 City Planner 1.00 1.00 1.00 1.00 0.95 Departmental secretary 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Building official 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Code enforcemt/recycling coord 0.50 0.75 1.00 1.00 0.48 Planning associate 1.00 1.00 1.00 1.00 1.00 1.00 Housing inspector 0.75 1.00 1.00 1.00 1.00 1.00 Intern 0.50 0.75 0.75 Engineering aide 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Subtotal 2.00 2.00 3.00 3.00 4.00 4.50 3.75 4.95 7.75 7.48 7.00 6.50 7.75 7.75 Finance: Finance Director-Treasurer 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Accountant 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Payroll clerk 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Utility accountant 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Subtotal 4.00 4.00 4.00 4.00 4.00 4.00 4.00 4.00 4.00 4.00 4.00 4.00 3.00 3.00 Police: Chief of Police 1.00 1.00 1.00 1.00 0.75 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Lieutenant 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Patrol sergeant 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 Investigator 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 Patrol officer 7.00 7.00 8.00 9.00 9.00 9.00 9.001 9.00 9.00 9.00 9.00 9.00 9.00 9.00 Department secretary 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Clerk-typist 0.50 0.50 0.50 0.50 0.50 0.63 0.63 0.63 0.75 0.75 0.75 0.75 0.75 0.75 Community service officer 0.42 0.42 0.42 0.42 0.42 0.42 0.42 0.50 0.50 0.50 0.50 0.50 0.50 0.50 Subtotal 14.92 14.92 15.92 16.92 16.67 17.05 17.05 17.13 17.25 17.25 17.25 17.25 17.25 17.25 Public Works: City Engineer 1.00 1.00 1.00 1.00 1.00 1.00 Public Works Director 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Forman/Mechanic 1.00 1.00 2.00 2.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Mechanic 1.00 1.00 1.00 1.00 1.00 0.00 0.00 0.00 0.00 0.00 0.00 1.00 1.00 1.00 Maint.trainee-sewer 0.75 1.00 Maintenance worker-streets 1.00 1.00 2.00 2.00 2.00 2.00 2.00 2.00 2.33 2.33 2.33 2.33 2.33 2.33 Maintenance worker-water 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.33 2.33 2.33 1.33 1.33 1.33 Maintenance worker-wastewater 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.34 2.34 2.34 2.34 2.34 2.34 Department secretary 0.50 0.50 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Subtotal 8.00 8.00 10.00 10.00 9.00 8.50 8.50 9.00 10.00 10.00 10.00 10.00 10.75 11.00 Recreation: Parks&Recreation Director 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Recreation supervisor 1.00 0.50 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Administrative assistant 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 1.00 Department secretary 1.00 1.00 Aquatics supervisor 0.50 0.50 0.50 0.50 0.50 0.50 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Senior citizens coordinator 0.33 0.33 0.33 0.33 0.33 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Cable TV 0.26 0.50 0.50 0.50 0.50 0.50 0.50 0.50 0.50 Maintenance worker-parks 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 Subtotal 5.50 5.83 5.09 4.83 4.83 5.33 5.50 5.50 5.50 5.50 5.50 5.50 4.50 4.50 Golf Course: Golf pro/club house mgr 0.50 1.00 1.00 1.00 1.00 Golf Course superintendent 1.00 1.00 1.00 1.00 1.00 0.00 0.00 0.00 0.00 0.00 0.001 0.00 0.00 0.00 1.50 2.00 2.00 2.00 2.00 TOTALS-ALL FUNDS 36.92 37.75 41.01 41.75 42.00 43.881 43.30 45.45 49.45 51.63 51.90 51.651 48.65 48.90 Change prior year 2.25% 8.64% 1.80% 0.60% 4.48% -1.32% 4.97% 8.80% 4.41% 0.52% -0.48% -5.81% 0.51% Cummulative change in staffing 0.00 3.26 4.00 4.25 6.13 5.55 7.70 11.70 13.88 14.15 13.90 10.90 11.15 Number of years 1.00 2.00 3.00 4.00 5.00 6.00 7.00 8.00 9.00 10.00 11.00 12.00 13.00 Cummulative change 2.25% 11.08% 13.08% 13.76% 18.85% 17.28% 23.10% 33.94% 39.84% 40.57% 39.90% 31.77% 32.45% 03/31/99 1 Municipal ads and a minimum of six years of progressive How to post ads in the Bulletin and on the experience in a city or public agency • managing projects,preparing budgets LMCWeb site: and reports,representing the agency,and supervising staff.Strong leadership,commu- Municipal ads are printed in the Cities Bulletin and posted on the LMC Web nication,and project management skills are site (www lmnc.org) at no charge to member cities.Ads run in one issue of also necessary.To request an application the Bulletin and are posted only once on the LMC Web site,unless notice is packet,contact(651)490-2203 or write to: received to run the ad in multiple issues and for multiple weeks. City of Roseville,2660 Civic Center Drive,Roseville,MN 55113 Deadline:April 9. BUILDING INSPECTOR.Shoreview Guidelines & Deadlines: (population 26,500)has an immediate open- I • The League will edit ads that exceed 150 words. ing for a full-time building inspector in our • Cities are encouraged to include information on how to receive active community development department. a complete job description. Primary duties include commercial and • Ads must be received by the end of business on the Friday before residential building inspections and code enforcement responsibilities.Positions will Bulletin publication or LMC Web site posting. provide shared services to the adjacent city • The Cities Bulletin is published weekly during the legislative session of Arden Hills.Minimum qualifications and every other week during the time between sessions.Ad postings on include high school diploma;three years the LMC Web site follow the same schedule as Bulletin publication. experience in construction trade,design,and • We prefer to receive ads by e-mail (send to:gbrodt@lmnc.org).If your supervision;one year municipal inspection city does not have e-mail capabilities,ads may be faxed to the attention experience;state building official certifica- of Gayle Brodt at (651) 215-4143. tion;and,valid driver's license.Starting salary range:$16.25 to$16.90 per hour,plus excel- • Please call Gayle Brodt at (651) 215-4033 with any questions. lent benefits.To apply,contact Shoreview City Hall at(651)490-4610 or(651) 490- Cities have the right to reject any or all bids on equipment or proposals. 4819/TDD.Deadline:April 5. Minnesota cities are equal opportunity employers. CHIEF SEWER PLANT OPERA • - TOR.Fergus Falls has an opening for a chief sewer plant operator.This position Check out these municipal ads and other information is responsible for performing a variety of skilled,technical,supervisory and admin- on the LMC Web site—www.lmnc.org istrative work in the planning,construction, operations,repair,maintenance and replace- ment of the city's Wastewater treatment Positions preparing budgets and reports,representing the en and supervising staffin a varietysystems.A qualified applicant will possess ASSISTANT CITY MANAGER. g P g a bachelor's degree in environmental science, ,MN Plymouth, (populationis of assignments.Salary:$60,000 to$75,000, Y 62,000) de depending qualifications.Please call civil engineering or a closely related field; seeking candidates for the position of P g on five years related work experience;two years assistant citymanager.ThecityJeanette Sobania,Human Resource assistant at,er (612) 509-5070 for additional supervisory experience;or any equivalent manager provides project and management Manager, combination of above.Must possess a valid support to the city manager and to the information.For application form,contact Class A wastewater Operator's license,state city council under the manager's direction. City of Plymouth,3400 Plymouth Blvd., Class IV waste disposal license, special Duties include representing the city in a Plymouth,MN 55447,or call(612)509- boilers license,and a Minnesota driver's variety of settings;managing the communi- 5072 or TDD(612)509-5065/TDD. license.The city of Fergus Falls offers a cations,cityclerk and clerical support Application deadline:April 9. PP competitive wage and excellent benefit functions;and,actingas project manager on ASSISTANT CITY MANAGER. P t Roseville (population 34,000),is seekingan package.Interested applicants shall pick up a variety of projects.The person selected �' P an application by stopping by Fergus Falls must be able to independently establish assistant city manager.Salary range:$48,248 City Hall at 112 West Washington or by priorities,complete assignments in a timely to$66,760.Incumbent participates with the calling(218)739-0140.Applicants should and effective manner,ablydeal with a city manager in development and adminis- submit a resume with the city application variety of groups,agencies and legislative tration of city operations;manages city sbyu April 9. bodies,and manage a broadrange of communications;represents the city in gCOMMUNITY SERVICE OF- activities.The qualified candidate will have community and inter-government commit- FICER.The Eagan Police Department a college degree or equivalent,preferably tees;prepares the council agenda and acts has an immediate opening for a full-time with a master's degree in public administra- in the city manager's absence;and directs community service officer.Starting range tion or a closely related field.The candidate high-profile projects as assigned.Position is$11.75 to$12.46/hour,plus excellent will have five years experience in a city or requires a master's degree in public or benefits.Law enforcement education and/ other public agency managing projects, business administration or related field Page 18 LMC Cities Bulletin 4111 Metropolitan Aircraft Sound Abatement Council Airplane noise is a problem for neighbors of all major airports, including MSP. The Federal Aviation Administration estimates that 2.7 million people across the nation are exposed to significant aircraft noise. A new national aircraft noise policy is aimed at reducing that number by 85%,to 400,000 people, by 1999. The MAC also has been working for the past 20 years to reduce the effects of aircraft noise on people who live and work in areas surrounding MSP. The results of the MAC's voluntary noise reduction agreements with the airlines have exceeded expectations. In every month since the program began in June 1997,the Average Daily Noise Energy has been lower than the limits set forth in the program. The MAC has also taken steps to distribute noise away from densely populated areas and more equitably among neighboring communities. This effort included the creation of the Metropolitan Aircraft Sound Abatement Council (MASAC) in 1969. Since that time, 17 noise abatement directives have taken effect. MASAC is a private non-profit organization dedicated to the control and alleviation of aircraft noise at and around the Minneapolis/St. Paul International Airport. Since its inception, MASAC has served in many different capacities, including advising the MAC, evaluating established noise policies, recommending and instituting new policies and studying the noise abatement programs in use around the world. Through the cooperation and commitment of many dedicated individuals MASAC is achieving and accomplishing its objectives in the area of aircraft noise relief. • MASAC's first objective is to study and evaluate complaints originating with the residents of neighboring communities concerning aircraft noise. This is accomplished through a complaint phone line which is in operation 24 hours a day. Each complaint is recorded and examined by the MAC director of sound abatement and environmental affairs. At the end of each month,the file is reviewed and statistics are compiles as to the number and location of complaints received. The results are then presented at the monthly MASAC meeting. • MASAC's second objective is the realization of an effective noise abatement program at the Minneapolis/ St. Paul International Airport. MASAC is responsible for the study and evaluation of existing noise control policies and the proposal and initiation of new programs. This requires that all council members are well informed on a wide range of noise abatement procedures and plans. In order to keep abreast of the most recent technical innovations and noise relief programs, MASAC holds membership in national and regional noise abatement organizations. The council also sponsors its own research and study programs and sends MASAC representatives to noise abatement conferences. • A final objective of MASAC is to conduct a program of public education. MASAC sponsors public meetings and informational sessions in order to explain current noise abatement policies and to discuss the possibilities for future programs • MASAC also provides information regarding zoning proposals and other land use regulations which keep future residential developments from noise sensitive areas and which offer alternatives for more compatible land uses. In addition, national and worldwide noise abatement programs are presented and discussed with city governments and civic groups in order to provide the public with a wide range of possibilities for reducing the noise in their communities. The MASAC board is composed of twenty-six members, divided equally between representatives from the aviation industry, or"user"groups, and private citizens form the "public" group. The user group includes eight representatives from airlines serving the Minneapolis/St. Paul airport and one representative from each of the following: The Minnesota Business Aircraft Association,the Air Line Pilots Association, the MAC, the St. Paul Chamber of Commerce, and the Greater Minneapolis Chamber of Commerce. The public group is made up of four representatives from Minneapolis, three from St. Paul, as well as representatives from Richfield, Bloomington,Mendota Heights, Eagan, Burnsville, Inver Grove Heights, Sunfish Lake and St. Louis Park. The number of representatives from each city is based on population and the size of the area affected by aircraft noise. Industry representatives are appointed by agencies, corporations, associations,and governmental bodies which have a direct interest in the operation of the MSP airport. The public representatives are appointed by their local governments. Over the years,many dedicated individuals have served on the MASAC board and each has contributed significantly to its development. Mar-31-99 01:08pm From-KENNEDY & GRAVEN +6123379310 T-098 P.02/08 F-823 470Pillsbury C:cntci Ken nedy 200 South sixth stn« Minnexpola MN 55402 ( _ (612)337-9300 rckcphonc `_J raven aven (612)337-9310 fax c n A R r E R iw A 1ncp:/l'Ante k w, .nnrm ciy-giavcn.cn SCorr J.Riccs Aiiunlcy ri Law Darter Dial(612)337-Y260 cn•ati) brigp(glccnncdy-grcvcn cusp March 31, 1999 Charles S. Whiting City of Mounds View 2401 Highway 10 Mounds View, MN 55112 Re; City of Mounds View v.Metropolitan Airports Commission,Metropolitan Council Court File Nos.: CO-98-1989 and C9-98-2011 131rar Chuck: As requested by Bob Long, enclosed please find a copy of the decision we received today regarding the above-referenced matter. As you can see, the Court of Appeals has reversed the District Court's temporary injunction requiring Metropolitan Airport Commission to withdraw its recommendation to Metropolitan Council as to the proposed Airport runway extension at the Anoka County-Blaine Airport As Mr. Strommen is not scheduled to return to the office until Monday, April 5, 1999,please feel free to contact Bob or I regarding this matter. Sincerely, KENNEDY , CRAVEN, CHARTERED 1 „ '/ Scott J. Ri... , � Mounds View Assi tans City Attorney SJR:sms Enclosures cc: James Strommen Robert Long SJ 1.-ibOb4'1 MU21.o•b Isar-31-99 01:09pm From-KENNEDY & GRAVEN +6123379310 T-098 P.03/08 F-823 CLERK OF TE APPELLATE COURTS MINNESOTA JUDICIAL CENTER 25 CONSTITUTION AVENUE SAINT PAUL,MINNESOTA 55155 FREDERICK K.GRITrNER (651)297.5529 UMW COVat AOMIMSTR4TOR a Fux (651)297-4149 CUPRK OF"441311.ATE COURTS Faun.&a4 gismusiguoursa.isassatu us This is to inform you that an opinion in City of Mounds View v. Merropolitan Airports Comm'n, Merropolitan Council, CO-98-1989 and C9-98-2011, will be filed by the Minnesota Court of Appeals on Tuesday, March 30, 1999, at 1:00 PM. The opinion may be downloaded from the Court's web site at www.courts.state.mn.us any time after 1:00 PM on that date. The opinion will be deposited in the U.S. Mail on Tuesday but you may pick up a copy at the Clerk's Office, 305 Judicial Center, 25 Constitution Avenue, St. Paul, after 1:00 PM. The Clerk's Office will not fax opinions. Frederick K. Grinner Clerk of Appellate Courts :1.)11 •1;o ;1\. I MAR 3 i jggg .1 ; Mar-31-99 01:09pm From-KENNEDY & GRAVEN +6123379310 T-098 P.04/08 F-823 c0981989 Court of Appeals Page 1 of 5 STATE OF MINNESOTA IN COURT OF APPEALS C0-98-1989 and C9-98-20II City of Mounds View, Respondent, vs. Metropolitan Airports Commission, Appellant(C0-98-1989), Defendant and Counterclaimant(C9-98-2011), Metropolitan Council, Intervenor-Defendant (C0-98-1989), Appellant(C9-98-2011). Filed March 30, 1999 Reversed Harten,Judge Ramsey County District Court File No. C9-98-8094 Donald W. Selzer, Jr.,Andrew T. Voss,Littler Mendelson, P.C.,Multifoods Tower, Suite 3970, 33 South Sixth Street,Minneapolis, MN 55402 (fur appellant, defendant and counterclaimant Metropolitan Airport Commission) Andrew D. Parker, Kelly J. Smits, Matthew E. Johnson, Smith Parker,P.L.L.P., 808 Colwell Building, 123 North Third Street, Minneapolis, MN 55401 (for intervenor-defendant, appellant Metropolitan Council) James M. Strotnmen,Robert C. Long, Kennedy &Graven,Chtd.,470 Pillsbury Center South, 200 South Sixth Street,Minneapolis,MN 55402 (for respondent) Considered and decided by Harten, Presiding Judge,Randall,Judge,and Shumaker,Judge. SYLLABUS A city seeking to enjoin the planning activity of the Metropolitan Council and the Metropolitan Airports Commission does not show irreparable harm by asserting that if a court subsequently disallows the plan,the city will have spent public planning and administrative funds unnecessarily. OPINION HARTEN,Judge The district court granted respondent City of Mounds View a temporary injunction requiring appellant lvictropolitan Airport Commission to withdraw its recommendation to appellant Metropolitan Council that an airport runway be extended. Because respondent failed to show that it would suffer irreparable harm absent the inunction,we conclude that the district court abused its http://www courts.state.mn.us/opinions/coa/current/c0981989.html 3/31/99 Isar-31-99 01:09pm From-KENNEDY & GRAVEN +6123379310 T-098 P.05/08 F-823 c0981989 Court of Appeals Page 2 of 5 discretion and reverse FACTS Appellant Metropolitan Council (MC) is a public corporation responsible for coordinating and planning the metropolitan area; appellant Metropolitan Airports Commission (MAC) is a public corporation with jurisdiction over airports. Respondent City of Mounds View (City)is located south of the Anoka County-Blaine Airport(Airport), a reliever airport for the main international airport. In 1996, the legislature enacted Minn. Stat. §473.608, subd. 27, requiring MAC to develop and implement a plan to divert the maximum feasible number of general aviation operations from the main international airport to reliever airports MAC accordingly submitted to MC a plan outlining Airport's future and recommended extending Airport's east-west runway from 4,000 feet to 5,000 feet. City then brought an action against MAC and moved for a temporary injunction requiring MAC to withdraw from MC's consideration plans for extending the runway.The motion was granted. MC intervened and joins MAC in this appeal from the temporary injunction. ISSUE Did the district court abuse its discretion in granting an injunction without a showing of irreparable harm? ANALYSIS A decision on whether to grant a temporary injunction is left to the discretion of the trial court and will not be overturned on review absent a clear abuse of that discretion. Carl Bo!ander& Sons v. City of Minneapolis, 502 N.W.2d 203, 209 (Minn. I993). A party seeking an injunction must first establish that the legal remedy is inadequate and that the injunction is necessary to prevent great and irreparable injury. Cherne Indus., Inc. v. Grounds &Assocs., 278 N.W.2d 81, 92 (Minn. 1979). The moving party must show that the particular relief requested will prevent the certain occurrence of an event that will cause significant injury—harm that cannot be redressed by a legal remedy.Ecolab,Inc. v. Gartland, 537 N.W.2d 291, 294 (Minn. App. 1995). The district court found that, if a court eventually disallowed expansion of the runway, the expenses City will have incurred because MC and MAC planned for the extension of the runway will be "irreparable harm." This finding is contrary to caselaw. Thomas v. Ramberg, 240 Minn. 1, 60 N.W.2d 18 (1953), affirmed the denial of injunctive relief to an employer who sought to enjoin the industrial commission from undertaking to fix minimum wages for certain employees. The supreme court rejected the employer's argument that the commission might have exceeded its jurisdiction in acting to establish new minimum wage levels and therefore lacked power to proceed. Problematical damages based on speculation cannot be used to establish irreparable harm as a basis for equitable relief. [The employer]has forcefully pointed out that, if this court were to decide at this time whether the commission had exceeded its jurisdiction and in the event that it should find a lack of jurisdiction,much time and expense would be saved by putting a halt to the proceedings. This argument,though appealing, is not sufficient. It is clear that costs http:/lw ww.couns.state.mn.us/opinions/coa/current/c0981989.html 3/31/99 Mar-31-99 01:09pm From-KENNEDY & GRAVEN +6123379310 T-098 P.06/08 F-823 c09819g9 Court of Appeals Page 3 of 3 expended in administrauve hearings,even where the agency may be exceeding its jurisdiction, do not amount to irreparable injury justifying intervention by a court of equity. * * * En the absence of a showing of irreparable injury, we must hold that,in the interest of orderly and uninterrupted administrative action an injunction should not issue to interfere with the commission's administrative proceedings. Id. at 7, 60 N.W.2d at 21-22. Like the employer in Thomas, City showed no injury other than "[p]roblematical damages based on speculation" when it argued that taxpayers' funds might be spent unnecessarily if eventually the court were to decide against extending the runway.See also Sheehan v. Hennepin County District Court, 253 Minn 462,93 N.W.2d 1 (1958) (upholding a writ of prohibition to stop the court issuing a temporary order restraining the commissioner of insurance from proceeding against an insurance company). The mere fact that a party might be saved the time and expense of defending himself at an administrative proceeding would not be sufficient to justify equitable relief by means of injunction 's * *. * * * The temporary restraining order issued by the court below prevented relator [commissioner of insurance] from carrying out his administrative duties. The statute having made it plain that the exercise of such power by the court at the time was unauthorized,it becomes manifest that the remedy of appeal was and is plainly inadequate and the writ should not be denied. !d. at 467-68, 93 N.W.2d at 5-6. Both Thomas and Sheehan solidly hold that an entity may not enjoin commissions from their legitimate activities because the expense the entity incurs as a result of those activities could prove unnecessary it'the activities are subsequently disallowed by a court. The district court's finding that City would experience "irreparable harm" if MC were allowed to consider MAC's recommendation that the runway be extended is erroneous as a matter of law, and absent a showing of irreparable harm,the injunction interfering with the proceedings of MC and MAC was an abuse of discretion. Moreover, even if City had met the threshhold showing of irreparable harm, it did not make an adequate showing on the factors a court is to consider in granting injunctive relief.Dahlberg Bros., Inc. v. Ford Motor Co.,272 Minn. 264,274-75, 137 N.W.2d 314, 321-22 (1965), enumerates the factors: (1) the parties'relationship prior to the dispute; (2) the weight of the irreparable harm alleged by the party seeking the injunction compared to the weight of the harm suffered by the other party if the injunction is granted; (3)the likelihood that the party seeking the injunction will prevail on the merits; (4)public policy considerations; and (5) administrative burden on the court. 1.Prior Relationship of the Parties City and MAC were in litigation concerning Airport's development during the 1980s. That litigation culminated in a July 1986 stipulation and court order that the runway be extended to 4,000 feet. The district court's finding on the parties'prior relationship implies that the 1986 order permanently restricts the length of the runway and prohibits MAC and MC from further planning_ The 1986 order, however,provided that Airport was to be developed "consistent with requirements of state law and the Metropolitan Development Guide, as of the date of this Agreement, as a'minor hup://www.courts.state.mn.us/opinions/coakurrent/c0981989.hunl 3/31/99 Mar-31-99 01:10pm From-KENNEDY A GRAVEN +6123379310 T-098 P.07/08 F-823 c0981989 Court of Appeals Page 4 of 5 use' airport." The maximum length for a minor use airport runway had been set at 5,000 feet two months earlier in MC's Aviation Development Guide/Policy Plan.L11 Extending the runway to 5,000 feet is now consistent with the development of Airport as "minor use." Moreover,Minn. Stat. § 473.146, subd. 1 (1998), requires MC to "adopt a long-range comprehensive policy plan for* * airports." This statutory obligation is not subject to a stipulation between City and MAC. The parties' prior relationship as exemplified by the 1986 stipulation does not support granting the injunction. 2.Balance of Harm Because City did not show that it would suffer any irreparable harm without the injunction and both MC and MAC are prevented from fulfilling their statutory duties by the injunction,this factor also weighs against the injunction. 3. Likelihood of Success on the Merits The district court found that City is likely to succeed on the merits because extending the runway would violate either Minn. Stat. § 473.641, subd. 4(1998)or the July 1986 court order. The evidence does not support this finding. Minn. Stat. § 473.641, subd.4, forbids MAC to expand or upgrade the use of an existing metropolitan airport from minor use to intermediate use status as defined by the metropolitan development guide, aviation chapter' * This subdivision was added in 1980, when the maximum runway length for minor use airports was 4,000 feet. But the subdivision clearly provides that the definitions of"the metropolitan development guide,aviation chapter" are controlling. Neither the subdivision nor any other statute defines minor use airports in terms of maximum runway length; there is no indication that the legislature ever intended runway length to be established by statute rather than by MC and MAC. III Extending the runway to 5,000 feet will not violate the statute. Nor will the extension violate the July 1986 order,which did not permanently establish the length of the runway and does not supercede MC's duty to develop long-range plans for airports. Absent violation of the statute or court order,City is unlikely to succeed on the merits. This factor weighs against the temporary injunction. 4.Public Policy The district court found that public policy regarding minor use airports is clearly set forth in the statutes.We agree,but nonetheless conclude that public policy does not support enjoining MC and MAC from performing their statutory duties.See,e.g., Minn. Stat. §473.146, subd. 1 (requiring MC to adopt a long-range comprehensive policy plan for airports);Minn. Stat. § 473.608, subd. 27 (1998)(requiring MAC to develop and implement a plan to transfer flights from the main airport to reliever airports). hup://www.courts.state.nuLusiopinionsicoa/current/c0981989.huni 3/31/99 Mar-31-99 01:11mm From-KENNEDY & GRAVEN +6123379310 T-098 P.08/08 F-823 Page 5 of 5 c0981989 Court of Appeals The district court referred only to Minn. Stat. § 473.641,subd. 4,prohibiting the upgrading of minor use airports to intermediate use airports. But that statute is not violated by MC's consideration of MAC's recommendation to extend a runway to the maximum length for minor use airports as defined by the metropolitan development guide, aviation chapter. Public policy as set forth in the statutes does not support granting the injunction. 5.Administrative Burden on the Court This factor is irrelevant.The district court's finding that there is no burden in administering the injunction is true,but it is equally true that denying the injunction so planning can proceed imposes no administrative burden. DECISION City did not make the showing of irreparuble harm prerequisite to obtaining injunctive relief, and neither the parties'prior relationship,nor City's likelihood of success on the merits, nor public policy, supports granting the injunction. Reversed. Footnotes 01 City argues that at the time it signed the stipulation, it did not know that the maximum runway length for minor use airports had been changed from 4,000 feet to 5,000 feet.But City does not suggest that MC or MAC wrongfully concealed this information or that they had a duty to inform City of the change. [21 City submitted an affidavit of a legislator stating that in 1980 he understood that changes in the definition of minor use airports would be made by the legislature,not by MC. But this understanding is not consistent with the statutory language specifying that minor use status is "as defined by the metropolitan development guide, aviation chapter." http://www.courts.state.mn us/opinions/coa/current/c0981989.html 3/31/99 470 Pillsbury Center Kennedy 200 South Sixth Street Minneapolis MN 55402 • (612) 337-9300 telephone Graven (612)337-9310 fax CHARTERED http://www.kennedy-graven.com JAMES M.STROMMEN Attorney at Law Direct Dial(612)337-9233 email:jstrommen@kennedy-graven.com March 29, 1999 Donald W. Selzer, Jr. Andrew D. Parker Andrew J. Voss Smith Parker, P.L.L.P. Littler Mendelson 808 Colwell Building Suite 3970 Multifoods Tower 123 North Third Street 33 South Sixth Street Minneapolis, MN 55401 Minneapolis, MN 55402 Re: City of Mounds View v. Metropolitan Airports Commission Court File No.: 62-C9-98-008094 Dear Counsel: Enclosed and served upon you please find the following documents: 1. Original Discovery Stipulation; and 2. Discovery Order with attached Exhibits. If you have any questions, please call. Very truly yours, KENNEDY& GRAVEN, CHARTERED (T° 111/1-CS ki{ • James . Strommen J igo Enclosure • cc: Charles S. Whiting SMS-160476 MU210-6 470 Pillsbury Center Kennedy 200 South Sixth Street J Minneapolis MN 55402 (612)337-9300 telephone Graven (612)337-9310 fax II/ CHARTERED http://www.kennedy-graven.com JAMES M.STROMMEN Attorney at Law Direct Dial(612)337-9233 email:jstrommen@kennedy-graven.com kennedy-graven.com March 29, 1999 Court Administrator Ramsey County Courthouse Civil Division/Civil Filing 15 Kellogg Boulevard West St. Paul,MN 55102 RE: City of Mounds View v. Metropolitan Airports Commission Court File No.:C9-98-8094 Dear Court Administrator: • Enclosed for filing please find the following documents: 1. Original Discovery Stipulation; and 2. Discovery Order with attached Exhibits. If you have any questions, please call. Very truly yours, KENNEDY& GRAVEN, CHARTERED �. James trommen JMS:4111111 Enclosure cc: Andrew Parker Andrew Voss/Donald Selzer Charles Whiting • SMS-160471 MU210.6 • STATE OF MINNESOTA DISTRICT COURT COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT CITY OF MOUNDS VIEW, a municipal Case Type: Other Civil " corporation, Court File No.: 62-C9-98-008094 Plaintiff—Counterclaimant Defendant, Judge John T. Finley v. METROPOLITAN AIRPORTS COMMISSION, a public corporation of the State of Minnesota, DISCOVERY STIPULATION Defendant-Counterclaimant and METROPOLITAN COUNCIL, a public corporation and political subdivision organized • under the laws of the State of Minnesota, Intervenor-Defendant. The above parties, by and through their undersigned counsel, hereby agree and stipulate as follows: WHEREAS, Plaintiff City of Mounds View ("City") has initiated this civil action seeking a declaratory judgment and injunctive relief to prevent Defendant Metropolitan Airports Commission ("MAC") from proceeding with the development of certain facilities located at the Anoka County-Blaine Airport ("Airport"), as described in the Anoka County-Blaine Airport Long Term Comprehensive Plan Update ("Plan Update"), as published by MAC in December 1997 ("Litigation"); WHEREAS, the City moved the district court on September 23, 1998, pursuant to Rule • 65.02 of the Minnesota Rules of Civil Procedure, for an order temporarily enjoining MAC from JMS-160413 MU210-6 1 submitting those portions of the Plan Update to Intervenor Metropolitan Council ("Met • Council") for approval that were inconsistent with the Airport Master Plan adopted by the Met Council on November 22, 1983; WHEREAS, the district court, the Honorable John T. Finley presiding, issued its Order on October 6, 1998 ("Order"), requiring that MAC withdraw from consideration by the Met Council "those provisions of the Long-Term Comprehensive Development Plan Update that are inconsistent with the 1983 Master Plan as approved by the Met Council on November 22, 1983," including but not limited to"expansion of Runway 8/26 of the Anoka County Airport;" WHEREAS, the MAC and Met Council have appealed the Order and the matter is presently pending before the Minnesota Court of Appeals; WHEREAS, the Scheduling Order for the district court dated October 26, 1998, provides that all discovery shall be completed by April 1, 1999; • WHEREAS, a bill introduced as House File 849 ("Legislation") is currently under consideration at the State Legislature that, if enacted into law, is likely to resolve the Litigation; WHEREAS, as public bodies the parties seek to limit the expenditure of public funds related to the Litigation where possible and not pursue extensive discovery unless and until it is clear that the proposed Legislation will not be enacted or otherwise will not resolve the Litigation; WHEREAS, the MAC and City agree concurrent with this Stipulation in a document entitled, "Stipulation on Airport Projects" that certain projects at the Airport may proceed without compromising the City's claims in the Litigation and without being in violation of the Court's Order of October 6, 1998; THEREFORE, the parties agree as follows: • JMS-160413 MU210-6 2 1. The effective date of this Stipulation is March 1, 1999, subject to Court approval of its terms. 2. As of the effective date, discovery will be stayed on all matters, unless otherwise ` agreed upon by all parties. Discovery will recommence on a date agreed upon by the parties as evidenced by the mutual exchange of letters from counsel agreeing that the proposed Legislation ceases to be viable or otherwise does not render the issues underlying the Litigation moot. 3. Upon agreement regarding non-viability of the proposed Legislation, such agreement not to be unreasonably withheld, the parties shall apply to the Court for a discovery deadline of sixty (60) days from a commencement date for full discovery agreed upon by the parties. In no event shall such commencement date be later than May 15, 1999. 4. Upon approval of the Stipulation by the Court, the parties shall propose an 410 amended Scheduling Order (Exhibit A) when a full discovery commencement date is established pursuant to paragraph two above. Dated: March 4 , 1999. KENNEDY&G: • VEN, CHARTERED By: /1// . Jams M. Strommen 152614) Robert C. Long (# 168452) 470 Pillsbury Center 200 South Sixth Street Minneapolis,MN 55402 (612) 337-9300 ATTORNEYS FOR PLAINTIFF CITY OF MOUNDS VIEW • JMS-160413 MU210-6 3 1 Dated: 7�2 , 1999. SMITH PARKER,P.L.L.P. • �.• r - Andrew D.Parker(#19(042) Matthew E. Johnson(#235945) 808 Colwell Building 123 North Third Street Minneapolis, MN 55401 (612) 344-1400 ATTORNEYS FOR INTERVENOR METROPOLITAN COUNCIL S JMS-158633 MU210-6 5 Dated: 1114044.(j , 1999. LITTLER MENDE ON,P.C. By: Do al W. Selzer,Jr. (#99144) Andrew J. Voss (#241556) Multifoods Tower—Suite 3970 33 South Sixth Street Minneapolis,MN 55402-3720 (612) 630-1000 ATTORNEYS FOR DEFENDANT METROPOLITAN AIRPORTS COMMISSION • • JMS-158635 MU210-6 4 STATE OF MINNESOTA DISTRICT COURT • COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT - : CITY OF MOUNDS VIEW, a municipal Case Type: Other Civil corporation, Court File No.: 62-C9-98-008094 Plaintiff—Counterclaimant Defendant, Judge John T. Finley v. METROPOLITAN AIRPORTS COMMISSION, a public corporation of the State of Minnesota, DISCOVERY ORDER Defendant-Counterclaimant and METROPOLITAN COUNCIL, a public corporation and political subdivision organized under the laws of the State of Minnesota, • Intervenor-Defendant. The parties have agreed to stay discovery in the above matter pursuant to the Discovery Stipulation attached as Exhibit A; now, therefore; IT IS HEREBY ORDERED that 1. Discovery shall be stayed in this matter pursuant to the terms of the Discovery Stipulation. (Exh. A). 2. When discovery is commenced, the parties shall submit a proposed amended scheduling order in the form attached as Exhibit B, within ten days of the date the parties agree to recommence discovery and in no event later than May 24, 1999. • JMS-158635 MU210-6 1 • Dated: BY THE COURT Judge John T. Finley • • JMS-158635 MU210-6 2 STATE OF MINNESOTA DISTRICT COURT • COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT CITY OF MOUNDS VIEW, a municipal Case Type: Other Civil corporation, Court File No.: 62-C9-98-008094 Plaintiff—Counterclaimant Defendant, Judge John T. Finley v. METROPOLITAN AIRPORTS COMMISSION, a public corporation of the State of Minnesota, DISCOVERY STIPULATION Defendant-Counterclaimant and METROPOLITAN COUNCIL, a public corporation and political subdivision organized • under the laws of the State of Minnesota, Intervenor-Defendant. The above parties, by and through their undersigned counsel, hereby agree and stipulate as follows: WHEREAS, Plaintiff City of Mounds View ("City") has initiated this civil action seeking a declaratory judgment and injunctive relief to prevent Defendant Metropolitan Airports Commission ("MAC") from proceeding with the development of certain facilities located at the Anoka County-Blaine Airport ("Airport"), as described in the Anoka County-Blaine Airport Long Term Comprehensive Plan Update ("Plan Update"), as published by MAC in December 1997 ("Litigation"); WHEREAS, the City moved the district court on September 23, 1998, pursuant to Rule 65.02 of the Minnesota Rules of Civil Procedure, for an order temporarily enjoining MAC from • JMS-160413EXIiIBiT} . MU210-6 > a ft a5 -="..z,l" ;.i.` =ire € • submitting those portions of the Plan Update to Intervenor Metropolitan Council ("Met Council") for approval that were inconsistent with the Airport Master Plan adopted by the Met Council on November 22, 1983; WHEREAS, the district court, the Honorable John T. Finley presiding, issued its Order on October 6, 1998 ("Order"), requiring that MAC withdraw from consideration by the Met Council "those provisions of the Long-Term Comprehensive Development Plan Update that are inconsistent with the 1983 Master Plan as approved by the Met Council on November 22, 1983," including but not limited to"expansion of Runway 8/26 of the Anoka County Airport;" WHEREAS, the MAC and Met Council have appealed the Order and the matter is presently pending before the Minnesota Court of Appeals; WHEREAS, the Scheduling Order for the district court dated October 26, 1998, provides ithat all discovery shall be completed by April 1, 1999; WHEREAS, a bill introduced as House File 849 ("Legislation") is currently under consideration at the State Legislature that, if enacted into law, is likely to resolve the Litigation; WHEREAS, as public bodies the parties seek to limit the expenditure of public funds related to the Litigation where possible and not pursue extensive discovery unless and until it is clear that the proposed Legislation will not be enacted or otherwise will not resolve the Litigation; WHEREAS, the MAC and City agree concurrent with this Stipulation in a document entitled, "Stipulation on Airport Projects" that certain projects at the Airport may proceed without compromising the City's claims in the Litigation and without being in violation of the Court's Order of October 6, 1998; THEREFORE,the parties agree as follows: JMS-160413 MU210-6 2 1. The effective date of this Stipulation is March 1, 1999, subject to Court approval • of its terms. 2. As of the effective date, discovery will be stayed on all matters, unless otherwise agreed upon by all parties. Discovery will recommence on a date agreed upon by the parties as evidenced by the mutual exchange of letters from counsel agreeing that the proposed Legislation ceases to be viable or otherwise does not render the issues underlying the Litigation moot. 3. Upon agreement regarding non-viability of the proposed Legislation, such agreement not to be unreasonably withheld, the parties shall apply to the Court for a discovery deadline of sixty (60) days from a commencement date for full discovery agreed upon by the parties. In no event shall such commencement date be later than May 15, 1999. 4. Upon approval of the Stipulation by the Court, the parties shall propose an amended Scheduling Order(Exhibit A) when a full discovery commencement date is established pursuant to paragraph two above. Dated: March 24 , 1999. KENNEDY&G: • VEN, CHARTERED 7 By: i/ C-. _ . James M. Strommen X2614) Robert C. Long(# 168452) 470 Pillsbury Center 200 South Sixth Street Minneapolis,MN 55402 (612) 337-9300 ATTORNEYS FOR PLAINTIFF CITY OF MOUNDS VIEW . JMS-160413 MU210-6 3 • Dated: ,, 1999. SMITH PARKER,P.L.L.P. ; ..,....._%►4 1 Andrew D.Parker(#19(042) Matthew E. Johnson (#235945) 808 Colwell Building 123 North Third Street Minneapolis,MN 55401 (612) 3441400 ATTORNEYS FOR INTERVENOR METROPOLITAN COUNCIL • • • TMS-158635 MU210-6 5 Dated: 114001,(p , 1999. LITTLER MENDE ON, P.C. • By: Do ald W. Selzer,Jr. (#99144) Andrew J.Voss(#241556) Multifoods Tower—Suite 3970 33 South Sixth Street Minneapolis,MN 55402-3720 (612) 630-1000 ATTORNEYS FOR DEFENDANT METROPOLITAN AIRPORTS COMMISSION • • 7MS-158635 MU210-6 4 • STATE OF MINNESOTA DISTRICT COURT COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT CITY OF MOUNDS VIEW, a municipal Case Type: Other Civil corporation, Court File No.: 62-C9-98-008094 Plaintiff—Counterclaimant Defendant, v. METROPOLITAN AIRPORTS COMMISSION, a public corporation of the State of Minnesota, PROPOSED AMENDED Defendant-Counterclaimant SCHEDULING ORDER and METROPOLITAN COUNCIL, a public 410 corporation and political subdivision organized under the laws of the State of Minnesota, Intervenor-Defendant. Based on the Stipulation agreed to by the parties to the above matter, attached as Exhibit A, the following is the Amended Scheduling Order for this matter. IT IS HEREBY ORDERED THAT: 1. Any deadline set forth in this order may not be extended by the stipulation of the • parties without leave of the court. 2. This case is hereby placed on the std/court trial calendar. All papers required to be filed pursuant to Rule 5.04 of the Minnesota Rules of Civil Procedure must be filed with the court within ten days of the filing of this order. This includes complaints, answers, and any third party pleadings, but does not include discovery documents. Documents to be filed should be sent to Room 600 (Civil Filing). • 3. The deadline for joining any additional parties including third party defendants, whether by amendment or third party practice, is , 1999. s ® L s s 4. All discovery shall not be noticed so as to be completed by , 1999. This • cutoff date for discovery is also the deadline to bring and hear motions to compel discovery. No motion will be heard unless the parties have conferred in an attempt to resolve their differences prior to the hearing. The moving party shall certify to the Court in writing,before the time of the hearing, compliance with this rule or any reasons for not complying. (Minnesota Gen.Rule Pract. 115.10). 5. Upon notice by opposing party of the scheduling of an examination pursuant to Rule 35.01, the party to be examined shall report for examination as directed unless previously excused by the court. Any party who fails to attend such examination shall, in the absence of good cause shown, reimburse the other party for the cost of such missed examination. 6. Non-dispositive motions be scheduled so that they are heard by , 1999. Motions in limine should be filed prior to the pretrial and, if pretrial set,prior to trial. 7. Dispositive motions must be heard by , 1999. Based upon current demand and to insure that a party's motion can be heard, you must arrange such hearings at least ten weeks prior to the motion cut-off date. Extension requests will be denied absent exceptional circumstances. 8. The parties have satisfied the Rule 114 Mediation requirement. 9. A Joint Statement of the Case per Rule 112 shall be filed no later than , • 1999, if not filed by this date, a hearing maybe set before the assigned judge. 10. A pretrial conference before the assigned judge is hereby set for , 1999, at in Room . The attorney who will try the case, the parties involved in the litigation (except insured with no settlement authority),claims adjusters, and any other persons who have final authority to settle the case, must personally attend. Leave may be granted by the judge to allow out-of-state parties or claims adjusters to appear by telephone. 11. The parties will submit proposed jury instructions, verdict forms, voir dire, motions in limine an any trial briefs one week prior to the trial date. 12. Trial of this matter is hereby set for , at . The estimating length of trial is 3-5 days. A jury trial has been requested and jury fees have not been paid. Dated: , 1999. John T. Finley, Judge of District Court 411 JMS-158639 MU210-6 2 . AFFIDAVIT OF SERVICE State of Minnesota ) )ss. County of Hennepin ) Shannon M. Stang, first duly sworn, deposes and says that on March 29, 1999, she personally served the attached Original Discovery Stipulation and Discovery Order with attached Exhibits. upon: Donald W. Selzer, Jr. Andrew D. Parker Andrew J. Voss Smith Parker, P.L.L.P. Littler Mendelson 808 Colwell Building Suite 3970 Multifoods Tower 123 North Third Street 33 South Sixth Street Minneapolis, MN 55401 Minneapolis, MN 55402 IIIby placing copies of each in an envelope, addressed to the above address, and depositing them in the United States Mall at Minneapolis,Minnesota. 111 AA %kb ii •k ,-`4 kilk I I Mg 611/ Shannon M. Stang Subscribed and sworn to before me this 29th day of March, 1999. otary Public OOOS 'I£ xvvnnvr S38Idx3 NOISSIWWOj AW AJNflOD t3SWtII V1OS3NNIW-3I18f1d AliV1ON '� 1l1OHS W NW( w It vvvvvvvw•vvvwvvvvvwwww vvvvv.