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Agenda Packets - 2020/07/06
CITY OF MOUNDS VIEW CITY COUNCIL WORK SESSION AGENDA MOUNDS VIEW CITY HALL Monday, July 6, 2020 6:30 p.m. Virtual Meeting Please click the link below to join the webinar: https://us02web.zoom.us/j/81379028665?pwd=ckg4cG42OVMvTDJHQkFwZkdF a3FDUT09 Password: 066332 Or iPhone one-tap: US: +16465588656, 81379028665# or +13017158592, 81379028665# Or Telephone: Dial (for higher quality, dial a number based on your current location): US: +1 646 558 8656 or +1 301 715 8592 or +1 312 626 6799 or +1 669 900 9128 or +1 253 215 8782 or +1 346 248 7799 Webinar ID: 813 7902 8665 ROLL CALL: Mueller, Gunn, Hull, Meehlhause, Bergeron Council Workshops are informal gatherings of the council at which no final decisions are made, rather consensus discussion to direct staff on council decision items. PUBLIC COMMENT Citizens may speak to issues not on tonight’s agenda. Before speaking, please share your full name and address. Also, please limit your comments to three minutes. AGENDA ITEMS DISCUSSED BY CONSENSUS 1. YMCA Contract 2. Long Lakes Wood Development 3. Storm Water Management 4. Splash Pad Re-Opening 5. Hybrid Council Meetings 6. CARES Distribution Discussion NEXT COUNCIL WORK SESSION: Monday, August 3, 2020 at 6:30 pm NEXT COUNCIL MEETING: Monday, July 13, 2020 at 6:30 pm Item No: __01__ Meeting Date: __July 6, 2020 Type of Business: ____WS___ Administrator Review: ____ City of Mounds View Staff Report To: Honorable Mayor and City Council From: Nyle Zikmund, City Administrator Item Title/Subject: YMCA Contract Introduction: The City and YMCA have been partners for over 15 years. We provide the facility and the YMCA provides staff and programs. We operate under a 5 year contract which is due in August of this year. Discussion: COVID-19 resulted in the YMCA reflecting on their overall operations. All staff but Andy Thomas had been furloughed despite the city paying those salaries. When staff reached out to ascertain what would be needed to bring them back, and correspondence was transmitted as requested and supported by council – the Y responded with an email indicated a need to discuss the contract. Chief Operating Officer Greg Waibel’ s email (attached) indicated they wanted to severe the relationship at worst, or re-negotiate the contract if we were to move forward. A conference all was set up with Directors Beer and Peterson. Attorney Riggs was consulted on contract language and has opined that the YMCA failed to notify us 180 days prior to the contract expiring as compared to within 180 days as Mr. Waibel’ s email indicates. We have not shared our opinion with him at this time. During the conference call later that week, Mr. Waibel was asked and responded in the affirmative that he will assemble a proposal for our review as to what they would need to continue operations. While we had wanted to bring the staff back, and we are paying for them, that issue is still on hold pending this discussion. I have had two conversations with Andy, who is understandably distressed and asked him to attend the July 6 workshop. Both Greg Waibel and Andy Thomas indicate an ability to still “participate” in some of the YMCA programs such as the Youth in Government program. Financial Analysis/Comparison/Information: The 2020 contract requires the City to make quarterly payments of $75,610.53 for an annual total of $302,442.12. In addition the city will pay a technology support fee of $2,935. Other charges include additional staffing for the Event Center ($21,757 – 2019) and staffing for the Warming Houses ($2,231 – 2019). The City also incurs facility operating expenses (2019) of $218,287 and debt service on the Energy Savings improvements of $53,119. ($600,771) The revenues excluding the childcare lease and City transfer and General Fund payments total $240,014 which breaks down to Event Center - $117,585, Program Profit Share - $53,141, Room and Gym rentals - $42,040, Open Gym participant fees - $26,429, and Miscellaneous - $819. (Childcare lease $132,000, General Fund transfer $190,000, General Fund Recreation department payment $122,612) ($684,626) The YMCA contract provides for an annual increase in the contract amount of inflation plus 1.5%. Options: 1. Invoke contract clause of 180 days prior was not met and proceed forward. 2. Same as one but only for one year extension and use year for transition. 3. Severe relationships and hire staff directly. 4. Explore options with adjacent communities. 5. Combination of the Above Recommendation: Respectfully submitted, Nyle Zikmund City Administrator Attachments: 1 MOUNDS VIEW CONTRACT PROPOSAL EXECUTIVE SUMMARY Contact: CITY OF MOUNDS VIEW AND YMCA AGREEMENT The YMCA of the Greater Twin Cities (YGTC) is proposing a restructured contract for operation of the Mounds View Community Center and Recreational program for the City of Mounds View. Terms: August 1, 2020 thru July 31, 2023. Proposal 1: YGTC receives 40% gross revenues to include all business lines annually. All revenue and expense will be received and incurred by The City of Mounds View. The YMCA will have first right of refusal when the current child care lease ends. Proposal 2: YGTC receives a management fee of $300,000 annually, increasing by 5% each year. All revenue and expense will be received and incurred by The City of Mounds View. The YMCA will have first right of refusal when the current child care lease ends. Revenue & Expenses: All revenue and expenses associated with the Mounds View Community Center, parks, fields and recreation programing will be transferred to the City of Mounds View. Compensation from the City to the YMCA will not be included in revenue. Sample Financials under new Agreements: Proposal 1: 2019 - $315,147 2020 - $345,052 50% 2020 budget – $199,038 YMCA Revenue 2019 2020 Budgeted 50% 2020 YMCA Programs 443,252.00$ 519,442.00$ 260,000.00$ Event Center Staffing Fee $1,295.00 1,200.00$ 600.00$ MV City Parks Rental $19,547.00 19,000.00$ 9,500.00$ MV Comm Center Miscellaneous $91.00 90.00$ 45.00$ MV Comm Center Open Gym $19,299.00 25,000.00$ 12,500.00$ MV Comm Ctr Equipment Rental $6,255.00 6,000.00$ 3,000.00$ MV Comm Ctr Gym & Mtg Room Rental $39,469.00 35,000.00$ 17,500.00$ MV Event Center $117,010.00 115,000.00$ 57,500.00$ MV Field Rental $8,707.00 9,000.00$ 4,500.00$ MV Lakeside Park Rental $943.00 900.00$ 450.00$ Child Care Lease $132,000.00 132,000.00$ 132,000.00$ Total 787,868.00$ 862,632.00$ 497,595.00$ 40%315,147.20$ 345,052.80$ 199,038.00$ *Revenues do not include sales tax deduction Item No: __02__ Meeting Date: __July 6, 2020 Type of Business: ____WS___ Administrator Review: ____ City of Mounds View Staff Report To: Honorable Mayor and City Council From: Nyle Zikmund, City Administrator, Jon Sevald Community Development Director Item Title/Subject: Long Lake Woods – Developer Appeal Introduction: This block was developed about 1939, and portions re-developed in 1990 (Long Lake Woods). The block includes partial ROW through the middle (Greenwood Drive), similar to the block north, which was re-developed in the 1970’s, extending Greenwood Drive as a thru street. It is clear that when the project area was platted in the 1930’s, the intent was for Greenwood Dr to be a thru street. The block includes a drainage ditch. It is not known when it was established, but it’s there. The City is responsible for maintaining it, and has performed minimal maintenance. At least since the mid-2000’s if not earlier, area property owners have sought to redevelop the back portions of their properties, and extend Greenwood Dr. The current project is led by Marty Harstad (developer), and involves participation from 12 of the 14 affected properties. The two non-participating property owners; Holl, and Doll, are opposed to the development. The City obtained ROW through the Holl property when subdivided in 2000. The City has partial ROW across the Doll property, but additional ROW is needed. The Developer has requested, and the City Council consented to the use of eminent domain if necessary, to obtain ROW from the Doll property. The City conducted an appraisal, and has offered to purchase 3 0’ of ROW from Doll for $20,000. Doll has elected to conduct their own appraisal. STATUS: City is waiting on a response from Doll (e.g. counter-offer) before proceeding with condemnation. The Council has consented to pay the cost of improving the ditch as part of the development (prorated to pre-development conditions). All costs associated with the development, such as streets, water, sanitary sewer, and storm sewer, is to be paid by the developer (e.g. 12 participating property owners). In preparing the Preliminary Plat, the developer conducted a wetland delineation which stated there was not a wetland. The delineation was submitted to the RCWD Technical Evaluation Panel (TEP), who determined that there is a small wetland within the drainage ditch. Therefore, the ditch cannot be entirely replaced by a pipe as planned. Instead, storm water from the ditch and from the development, will be treated in an infiltration basin prior to exiting back into the ditch, and exiting the development. This is a significant unplanned expense. Recent Timetable /History: 8-11-2018 – Developer meets with staff and introduced a sketch-plan, advises at least one property owner unwilling to participate, requests feedback from City regarding use of Condemnation specific to road easement in platted road. 9-04-2018 Workshop – Brief Discussion on use of Condemnation/Imminent Domain. Schedule for October Workshop. 10-01 -2018 Workshop – Further discussion and consensus to have developer conduct a neighborhood meeting. Several Residents speak in opposition, development and wetland concerns. Harstad cites Kjolhaug report stating no wetland. 10-1-2018 – Kjolhaug Environmental Services Company issues “Site Assessment for Wetlands to RCWS, Army Corps of Engineers, and Haarstad” stating No Wetland Determination and requests confirmation/Technical Evaluation Panel (TEP) which is next step in process. 11-14-2018 – RCWS/TEP issues “Notice of Decision” that a small wetland exists on the property, within the drainage ditch. 11-20-2018 – Neighborhood meeting held at Community Center. Haarstad states a small wetland has been determined to exist by RCWS . 11-27-2018 – Follow up notice to neighborhood and meeting attendees providing update and advising Wetland Site Assessment documentation was available on the web page. 02-14-2019 Workshop – Council presented with sketch plan with request by developer to provide comments (streets, sidewalks, lot layout, features to be preserved, etc.) 03-04-2019 – Deve loper requests council support for use of eminent domain specific to acquiring platted right of way in road construction. Council consensus (was not unanimous) to support use of condemnation/eminent domain to acquire land for right-of -way. 03-19-2019 – Stantec prepares feasibility report cost estimate, and timeline for developer. 04-18-2019 – Budget detail on project provided by developer. Fall 2019 – Appraisal commissioned 01-18-2020 – Appraisal received. 02-10-2020 – Council approves Resolution 9237; approval of Development Agreement 02-12-2020 – Draft Development Agreement conveyed to Developer 04-14-2020 – Correspondence to Harstad detailing development agreement components. NOTE – letter states City will cover storm water costs to pre-existing conditions and states road/utility improvements will be assessed to 14 benefiting properties. 04-20-2020 – Closed session regarding Appraisal and development. 04-17-2020 – Appraisal offer and report conveyed to Doll with 30 day deadline to respond. 04-23-2020 – Correspondence to Harstad detailing outcome of closed session, including amount of offer to Doll ($20,000) and clarifying that only the 12 participating parcels will be assessed. 05-13-2020 – Attorney representing Doll states they are electing to appraise the property. 06-05-2020 – Harstad conveys Rice Creek rejects plan to pipe open ditch and requires storm water coming onto/thru property be treated. Informal request to have city include storm water management as part of City project and assess 14 benefiting properties. 06-08-2020 – Council meeting – council discussed as part of staff reports, consensus to undertake storm water management but only assess 12 development properties. 06-09-2020 – Phone call to developer by Administrator Zikmund conveying council support for undertaking all public improvements as part of project but assessments to 12 development properties versus 14 benefiting properties. 06-18 -2020 – Appeal Correspondence from Harstad with specific request. Developer Appeal: The Developer is appealing the Council’s direction, requesting that Holl and Doll be included in assessments. The Developer states that if not assessed, Holl and Doll’s benefit will be approximately $20,000 each. As-is, this cost will be borne by the 12 participating property owners (about $3,300 vs. $2,800 cost, if 14 owners assessed). The Developer states that development costs are near the threshold of the project not being feasible. Specific Requests by Develop: 1. Condemnation costs assessed to 14 benefiting properties. 2. City to construct all public infrastructure – street, utilities, and storm water (Council supports per June 8, 2020 discussion) and assess 14 benefiting properties. 3. City to assume wetland/storm water permitting process and costs and assess 14 benefit properties. Discussion/Relevant Information: Both the 2040 Draft Comprehensive Plan and Strategic Plan state/address need for residential lots. The resident survey conducted as part of the Comprehensive Plan included numerous statements to cease construction/development of multi-family properties and provide additional single family lots. There are four right-of-way parcels to be acquired, three are to be dedicated over as part of the development as they are owned by the participating owners. The remaining parcel; Doll, is unwilling to participate. As lots have been split, the city has endeavored to have the road right of way dedicated over and did obtain that on the Holl property when that was split. It is unknown why it was not obtained on the Doll property when it was subdivided (it’s also possible he purchased the two lots and it was subdivided before his time). Both the Holl and Doll parcels meet the definition of non-conforming lots as they do not abut a public street. While the city could, by resolution, allow a single family home to be constructed – and has done so once, Staff recommends against. Along with access issues, city sewer, water, and storm water would all be substantive concerns. K & G has opined that the construction of the road and other infrastructure will benefit the 14 properties and meet the definition in statute to allow assessment. It has been the policy of the City to assess benefiting properties. Finance Director Beer has estimated property tax assessed value at $6 million (full development) with city tax revenue of just over $21,000 annually. Harstad indicates in his correspondence that if the City had maintained the ditch and infiltration basin, there would not have been a wetland. In conversations with Rice Creek, their representatives would dispute that. Discussion: The developer is not requesting public assistance in the form of TIF, abatement, cost participation or other fiscal assistance. The developer is asking for the assessments to be borne by the benefiting properties. The developer has requested from near inception for the City to undertake construction of the street and sewer and water utilities. That request was recently amended to include storm water upon a decision by Rice Creek Watershed to deny the drainage plan component of piping the existing ditch. Rather, the water will need to flow into a storm water retention pond where it can then be treated as it is not in the current configuration. Council has been supportive of this. Council has provided fiscal assistance for the last two housing related developments; MWF and Grey Stone Flats as well as indicating a willingness to do the same for the Skyline Property and Tires N More/Simons Property. Mounds View has very limited single family lot potential being fully developed. The City experiences a small number of tear downs and rebuilds every year, likely as a function of smaller homes built in the 1940’s and 1950’s sitting on heavily wooded “estate” type lots. Long Lake Woods would generate 12 lots which equates to the largest single family development in over a decade – Hidden Hollow being the last (2004). Staff has identified as few as six and as many as 12 other similar projects; infill properties where two to eight lots could be generated. All of them will have complex issues related to storm, right of way partial and full acquisition, and other similar challenges. The Fields property is an example – four lots and efforts have been underway since 2013. Action Item/Decision: 1. Developer (Marty Harstad) is not requesting subsidies, but is requesting that infrastructure costs be assessed to the two non-participating property owners as they benefit. Staff Recommendation: 1. Discussion and decision/direction on appeal. Future Single Family Lot Development Discussion: Much of Mounds View’s housing stock is dated. Mounds View has a need for single- family lots for move-up housing. Otherwise, as household incomes increase, families are more likely to move out of town (Klander family), but stay within the school district. In 2019, 5 single-family homes were constructed in Mounds View. In comparing cities which are predominantly in the Mounds View School District, new single-family homes were constructed in; Arden Hills (3), New Brighton (1), North Oaks (30), and Shoreview (13). The median single-family home value (2020) is: Arden Hills $387,500; Mounds View $250,750; New Brighton $299,300; North Oaks $651,800; and Shoreview $336,450. $268,300 is the median value for suburban Ramsey County. New construction typically starts in the low $400,000. Staff have identified areas of the city for in-fill development. All of these areas have challenges that have deterred developers. If the City wishes to compete with other suburbs for new single-family housing, either the City needs to subsidize development costs, or be content with waiting until market conditions change (e.g. it’s taken 20+ years for Long Lake Woods Second Addition, to get this far). Further discussion on the broader issue of infill development as this project – and- the Fields property, illuminate the substantive challenges of infill. Both have revealed a need to dedicate a workshop to discuss Council desire to assemble a “toolbox” specific to creating residential single family home lots. Given the infrequency of these, we have not been required to do this. If council wishes, we can schedule time at a future workshop. Similar to re-development of other properties, the policy decision has no clear right or wrong answer, rather a reflection of community goals as determined by the elected representatives. Respectfully submitted, Nyle Zikmund City Administrator Attachments: Developer Letter/Appeal Kjolhaug Wetland Report RCWS Wetland Determination Neighborhood Meeting Notice Budget Detail Feb 10, 2020 Staff memo Draft Development Agreement April 14, 2020 Ltr. to Developer April 23, 2020 Ltr. to Developer Request for help from the Mounds View City Council For the project known as Long Lake Woods Dear Mayor and members of the City Council, I recently have had discussions with a few of the property owners of the underlying land of the “Long Lake Woods” project. I explained to them in great detail the current status of the project including costs, issues and timing. It was a rather uncomfortable conversation for me as costs have increased considerably due to a few unforeseen circumstances that have come up since they first approached me about helping them with this project. It is safe to say that the consensus of the group is that the project has become unfair on these issues and that without help by the City Council it is time to withdraw our application. Below is a description of three major issues and the unfairness that we feel they have create d. Condemnation of Mr. Doll's "right of way": The group understands that the condemnation of a citizen’s property is not something that the City takes lightly. All of the property owners involved in this project have lived in this location for a number of years and have an understanding of the history of what has taken place between the City and all properties involved in this potential development. This is not only a sensitive issue with the Council it is a sensitive issue with the property owners making this request, who are also citizens of the City of Mounds View. Please review the issues below with an open mind. This project has been in the planning stage for over 30 years. The City has been acquiring "right of way" for the future street for years with the intension that it will one day be developed. This is why the City already has ownership of over 50% of the needed "right of way" for the future street. All "right of way" that the City has acquired has been given to the City, not purchased. All other "right of way" that is needed for the project will be given to the City as part of the platting process for free other than Mr. Doll “right of way”. Mr. Doll clearly knew that this area of the City was being readied for development. Mr. Doll’s father owned the property prior to himself. It was not as if he purchased the property and no one told him that a development was being contemplated. Not only did his family give up the needed "right of way" next to his homestead, he made an agreement with the City to use the "right of way" for his driveway with the understanding that when the adjoining property developed, he will need to vacate his driveway. The Doll family through tax forfeiture purchased the lot that is the subject of the condemnation. Why didn’t the City collect the “right of way” when the lot was created like other adjo ining properties? There are people in our group that believe that it was a requirement at the time of the creation of the lot? When the Doll family purchased the lot they clearly knew that the adjoining property was intended for development. Prior to the lot purchase, the family already had the agreement in place for use of their driveway on the City 'right of way" at their homestead on the adjoining lot. The County valuation for property taxes on the subject lot is only $20,000 not $95,000 or $100,000 like other vacant lots in the City. It has been suggested to me that he is being offered for the condemnation as much as the County valuation has on the whole lot? Why are they offering this large amount for this tiny portion of his property? On top of this, the fees for the legal process are estimated to be $20,000 - $30,000 to acquire the “right of way” from Mr. Doll. That means that the cost of acquiring this little piece of “right of way” will cost approximately $50,000. In light of the history, this amount seems very unfair when everyone else has either given or will give up their property for free. Storm Water Ponding: As part of all developments, storm water ponding is required. My earliest sketches that I shared with the property owners and public have shown ponding. It turns out that a very large area to the south of the project uses a portion of the property to convey their storm water into the storm system. This is done through an existing “drainage and utility easement”. The storm water flows north from Sherwood Road, makes a right turn to the east and connects to the storm sewer in Long Lake Road. In most Cities this drainage and utility easement would have a storm pipe in it. At this location it was allowed to be an “open ditch” instead of pipe. After working with my engineer and the RCWD, we have now calculated how much water travels through this ditch. RCWD has made the determination that all waters traveling through this ditch will need to be treated through ponding prior to discharge into the storm sewer. This will require the collection of waters at Sherwood Road, installing a pipe that will carry the water to the ponding and the creation of a very large pond that will treat the water prior to discharge. The sizing of the project pond has now increased by over 40% due to this water from off site. This pond is now required to accommodate the waters of the neighborhood to the south and the new project including Mr. Doll and Mr. Holl”s lots. The costs associated with building the pond should include the costs of the land. The required land area for ponding is more than 20 times the area that is being condemned from Mr. Doll. Pipes will now need to be oversized to accommodate waters from the south as well as Mr. Doll and Mr. Holl. Wetlands: When I first met with the City Council, I informed them that we had a wetland delineation done on site and the wetland specialist had found no wetlands. After review by the “Technical Evaluation Panel” It was determined that we do have a 1,062 sq. ft. wetland on the property. This wetland is located in the City drainage and utility easement (ditch). If this drainage and utility easement (ditch) was maintained or have been put in a pipe, the wetland would not exist. RCWD has determined that because of the adjoining storm water ponding, the wetland will be comprised and will need to be mitigated. The cost of the mitigation is estimated to be $9,300. The current project shows 12 new lots that are part of the development group. With Mr. Doll and Mr. Holl, the number of fully improved lots is 14. All 14 lots are receiving full benefit from everything mentioned above. They will all have full utilities, a paved street with sewer and water and have the required storm water ponding. They will need no future government approvals to sell their property. Their unimproved lots will be fully improved and just as valuable as the other lots in the project. On the other hand, if they like the privacy of not having a neighbor, they are not required to sell their lot. Once again, this project has been in the works for over 30 years. In most Cities the Mr. Doll and Mr. Holl already platted back lots would be considered “non conforming” as they have no fronting street or City utilities. This project creates value for both of them. I respectfully request that the Council work with us to spread some or all of the above costs with ALL benefiting properties in a fair and equitable manner. Below are a few options that I would suggest that are fair and should be considered. 1. Mr. Doll should be assessed for the condemnation of his "right of way". Or at a minimum, any award and fees should be assessed to all 14 lots. 2. As part of the “City project“ to install streets and utilities, the City can acquire the land for ponding then build and install all needed infrastructure for ponding along with the streets and utilities as planned. This should be assessed to all 14 lots. 3. As part of the “City project” the City can take over the wetland permitting process including any mitigation costs. This should be assessed to all 14 lots. Even if the City were to do all of the above, we have spent close to $100,000 on fees, engineering and studies to date. We still will be paying for tree removal for the street, relocation of small utilities, grading of the road, etc. These costs will be paid by the 12 lots not all 14. This means that the 12 lots will still be subsidizing Mr. Doll and Mr. Holl in excess of $20,000 each. This project will bring 12 or 14 new homes to the City. I’m certain that it will bring upgrades to many of the adjoining homes and will only bring great things to the City! The owners and developers of this property are Mounds View citizens that have been working with the City for over 30 years to make this project happen. We need your help in making this a fair process for ALL parties or we will be forced to withdraw our application. I am certain that based on discussions with the property owners that if it doesn't happen now it will never happen in the future. 26105 Wild Rose Lane, Shorewood, Minnesota 55331, Phone: 952-401-8757, Fax: 952-401-8798 Memorandum The 9.28-acre Sherwood Road Properties site was investigated for the presence and extent of wetland by Kjolhaug Environmental Services (KES) on September 13, 2018. The site was located in Section 6, Township 30N, Range 23W, Mounds View, Ramsey County, Minnesota. The site was located east of Eastwood Road, south of Ardan Avenue, west of Long Lake Road, and north of Sherwood Road (Figure 1), and corresponded to multiple Ramsey County PIDs listed in Part 5 of the attached joint application form (Attachment A). Areas of City-owned land were also present within the review area. The site was comprised of a combination of large single-family lots or vacant parcels surrounded by single-family lots. That portion of the site that were not comprised of mowed lawn and landscape trees/shrubs was woodland (Figure 2). Topography throughout the site was fairly level; however, topography was highest in the northwest at 914-feet msl and from there sloped downhill to the east to a land surface elevation of 904-feet. An intermittent drainageway was located within the southeast portion of the site. No (0) wetlands were identified or delineation within site boundaries. The Joint Application Form for Activities Affecting Water Resources in MN is included as Attachment A. Review of NWI, Soils, DNR, and NHD Information The National Wetlands Inventory (NWI) (Minnesota Geospatial Commons 2009-2014 and U.S. Fish and Wildlife Service) showed on PEM1A wetland within site boundaries (Figure 3). Date: October 1, 2018 To: Nick Tomczik, Rice Creek Watershed District Project Manager, U.S. Army Corps of Engineers CC: Marty Harstad, Project Representative From: Melissa Barrett, Kjolhaug Environmental Services Company (KES) Re: Site Assessment for Wetlands (KES# 2018-046) SHERWOOD ROAD PROPERTIES, MOUNDS VIEW, MN 2 The Soil Survey (USDA NRCS 2015) showed Isanti (Predominantly Hydric) as the mapped hydric soil type on the property. Soil types mapped on or near the property are listed in Table 1 and a map showing soil types is included in Figure 4. Table 1. Soils present on the Sherwood Road Properties site Map Unit Symbol Map Unit Name Hydric Rating Acres in AOI Percent of AOI 161 Isanti loamy fine sand, depressional 92 4.8 20.30% 162 Lino loamy fine sand 5 6.3 26.80% 863 Urban land-Lino complex, 0 to 3 percent slopes 0 12.5 52.90% The Minnesota DNR Public Waters Inventory (Minnesota Department of Natural Resources 2015) showed DNR Public Wetland 62-168W (unnamed) approximately 1000 feet northwest of the site boundaries (Figure 5). The National Hydrography Dataset (U.S. Geological Survey 2015) did not show any surface water features on or adjacent to the site (Figure 6). Results/No Wetland Determination The Sherwood Road Properties site was reviewed for the presence of wetland on September 13, 2018. At that time, trees and shrubs still had leaves and some herbaceous vegetation was actively growing while others were beginning to senesce. Climatic conditions were below typical (dry) based on the Gridded Database Method (Attachment B). Other than mowed lawn areas, the majority of the site was woodland. Species observed included: bur oak, common buckthorn, green ash, boxelder, sugar maple, black walnut, catalpa, black cherry, quaking aspen, honeysuckle, red-berried elder, river-bank grape, Virginia creeper, hog peanut, big-leaf aster, motherwort, garlic mustard, black nightshade, catnip, white snakeroot, three-seed mercury, lilac, cinquefoil, raspberry, common plantain, stickseed, violet, clearweed, and common burdock. One depressional area was observed in the northeast portion of the site. A sample point taken within the depression (SPA; Figure 2 and Attachment C). SPA was dominated by a canopy of sugar maple with a sparse understory of common buckthorn. Soils were light brown loamy sand to 24 inches. No primary or secondary indicators of wetland hydrology were observed, including geomorphic position which did not apply due to the presence of a functioning drainage system and high permeability soils. This depressional area was determined to be non-wetland based on the lack of a dominant hydrophytic plant community, lack of hydric soil, and lack of wetland hydrology. An intermittent drainageway that flowed into the site from the south and flowed out of the site towards the east was observed. A curb cut at Sherwood Road allowed untreated roadway runoff to enter the drainageway. The bottom of the drainageway was unvegetated and was not saturated 3 or inundated at the time of the site visit. The bed of the south portion of the drainageway was level with the surrounding landscape (no bed or bank), while the bottom of the east portion of the drainageway was approximately one to two feet lower than the adjacent landscape (bed and bank present). Although this feature is not a wetland, it (at least the eastern portion) is likely a Water of the U.S. regulated under Section 404 of the CWA. No depression or area dominated by hydrophytic vegetation was observed within that area shown on the NWI map as a PEM1A wetland. Instead, the intermittent drainageway bisected the area. Requested Approvals The Joint Application Form for Activities Affecting Water Resources in Minnesota is included in Attachment A, which is submitted in request for: (1) a delineation concurrence/no wetland determination under the Minnesota Wetland Conservation Act (WCA), and (2) concurrence from USACE that the site does not contain any wetlands but does contain one Water of the U.S. (i.e., the intermittent drainageway) regulated under Section 404 of the Federal Clean Water Act Thank you. 4 Sherwood Road Properties, Mounds View Wetland Delineation Report Figures: Figure 1 – Site Location Map Figure 2 – Existing Conditions Map Figure 3 – NWI Map Figure 4 – Soil Survey Map Figure 5 – DNR Protected Waters Map Figure 6 – National Hydrography Dataset Map © OpenStreetMap (and) contributors, CC-BY-SA Figure 1 - Site Location Sherwood Road Properties (KES 2018-133)Mounds View, Minnesota Note: Boundaries indicatedon this figure are approximate and do not constitute an official survey product. ¯0 500 Feet Legend Site Location City Property Source: ESRI Streets Basemap #*9109 0 8 906912904914914914 912910910912914910912910910908906 910912 9 1 0 912910910 908 908906910906 912 9 1 0 910 912 908 908910912904 Figure 2 - Existing Conditions (2016 MnGEO Photo) Sherwood Road Properties (KES 2018-133)Mounds View, Minnesota Note: Boundaries indicatedon this figure are approximate and do not constitute an official survey product. ¯0 250 Feet Site Location City Property Drainageway Offsite Drainageway #*Sample Point Ramsey County Lidar Source: MnGeo, ESRI Imagery Basemap Drainageway720-ft onsite Drains into site Drains outof site HighGround SlightDepression HighGround SPA PEM1A PFO1A Figure 3 - National Wetlands Inventory Sherwood Road Properties (KES 2018-133)Mounds View, Minnesota Note: Boundaries indicatedon this figure are approximate and do not constitute an official survey product. ¯0 250 Feet Source: Minnesota DNR (2013), USFWS 863 162 161 859B 1039 162 161 162 162 Figure 4 - Soil Survey Sherwood Road Properties (KES 2018-133)Mounds View, Minnesota Note: Boundaries indicatedon this figure are approximate and do not constitute an official survey product. ¯0 250 Feet Legend Site Location City Property Ramsey County Soils Hydric_Rat Hydric/Predominantly Hydric Partially Hydric Predominantly Non-Hydric/Non-Hydric Source: USDA, NRCS Unnamed (62-168 W) Unnamed (62-258 W) Unnamed (62-168 W) Figure 5 - DNR Public Waters Inventory Sherwood Road Properties (KES 2018-133)Mounds View, Minnesota Note: Boundaries indicatedon this figure are approximate and do not constitute an official survey product. ¯0 1,000 Feet Legend Site Location City Property Public Ditch/Altered Natural Watercourse Public Watercourse Public Waters Source: Minnesota DNR Figure 6 - National Hydrography Dataset Sherwood Road Properties (KES 2018-133)Mounds View, Minnesota Note: Boundaries indicatedon this figure are approximate and do not constitute an official survey product. ¯0 500 Feet Site Location City Property Hydro Junction Artificial Path Canal/Ditch Connector Pipeline Stream/River Stream/River Lake/Pond Reservoir Swamp/Marsh Source: USGS Sherwood Road Properties, Mounds View ATTACHMENT A Sherwood Road Properties, Mounds View ATTACHMENT B 9/27/2018 Precipitation Documentation Worksheet Using Gridded Database http://climateapps.dnr.state.mn.us/gridded_data/precip/wetland/worksheet.asp?passXutm83=482903&passYutm83=4995747&passcounty=Ramsey&p…1/1 Minnesota State Climatology Office State Climatology Office - DNR Division of Ecological and Water Resources University of Minnesota home | current conditions | journal | past data | summaries | agriculture | other sites | about us Precipitation Worksheet Using Gridded Database Precipitation data for target wetland location: county: Ramsey township number: 30N township name: unnamed range number: 23W nearest community: Mounds View section number: 6 Aerial photograph or site visit date: Thursday, September 13, 2018 Score using 1981-2010 normal period values are in inches A 'R' following a monthly total indicates a provisional value derived from radar-based estimates. first prior month: August 2018 second prior month: July 2018 third prior month: June 2018 estimated precipitation total for this location:3.49R 4.02R 4.27R there is a 30% chance this location will have less than:3.54 2.77 3.24 there is a 30% chance this location will have more than:5.13 5.02 5.23 type of month: dry normal wet dry normal normal monthly score 3 * 1 = 3 2 * 2 = 4 1 * 2 = 2 multi-month score: 6 to 9 (dry) 10 to 14 (normal) 15 to 18 (wet)9 (Dry) Other Resources: retrieve daily precipitation data view radar-based precipitation estimates view weekly precipitation maps Evaluating Antecedent Precipitation Conditions (BWSR) Sherwood Road Properties, Mounds View, MN: Precipitation Summary Source: Minnesota Climatology Working Group Monthly Totals: 2018 Target: T30 R23 S6 (latitude: 45.11499 longitude: 93.21735) mon year cc tttN rrW ss nnnn oooooooo pre (inches) Jan 2018 62 30N 23W 7 SWCD .86 Feb 2018 62 30N 23W 7 SWCD 1.73 Mar 2018 62 30N 23W 7 SWCD 1.93 Apr 2018 62 30N 23W 7 SWCD 2.33 May 2018 62 30N 23W 6 BYRG 3.64 Jun 2018 62 30N 23W 6 BYRG 3.94 Jul 2018 62 30N 23W 6 BYRG 4.63 Aug 2018 62 30N 23W 6 BYRG 3.53 Sep 2018 62 30N 23W 2 SWCD 4.93 July/August/September Daily Records 1981-2010 Summary Statistics Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec WARM ANN WAT 30% 0.50 0.40 1.34 1.95 2.97 3.24 2.77 3.54 2.19 1.42 1.00 0.69 17.50 29.39 28.29 70% 1.21 0.95 1.98 3.22 4.66 5.23 5.02 5.13 3.86 3.68 2.22 1.30 22.52 34.86 35.43 mean 0.86 0.77 1.82 2.79 3.82 4.39 4.23 4.19 3.47 2.66 1.77 1.16 20.09 31.93 31.75 Jul 1, 2018 .04 Jul 2, 2018 1.42 Jul 3, 2018 .03 Jul 4, 2018 .05 Jul 5, 2018 .36 Jul 6, 2018 0 Jul 7, 2018 0 Jul 8, 2018 0 Jul 9, 2018 0 Jul 10, 2018 0 Jul 11, 2018 0 Jul 12, 2018 0 Jul 13, 2018 1.51 Jul 14, 2018 .11 Jul 15, 2018 0 Jul 16, 2018 0 Jul 17, 2018 0 Jul 18, 2018 0 Jul 19, 2018 0 Jul 20, 2018 .19 Jul 21, 2018 .84 Jul 22, 2018 0 Jul 23, 2018 0 Jul 24, 2018 0 Jul 25, 2018 0 Jul 26, 2018 .03 Jul 27, 2018 .05 Jul 28, 2018 0 Jul 29, 2018 0 Jul 30, 2018 0 Jul 31, 2018 m Aug 1, 2018 .06 Aug 2, 2018 .02 Aug 3, 2018 0 Aug 4, 2018 1.06 Aug 5, 2018 .06 Aug 6, 2018 0 Aug 7, 2018 0 Aug 8, 2018 .02 Aug 9, 2018 0 Aug 10, 2018 0 Aug 11, 2018 0 Aug 12, 2018 0 Aug 13, 2018 0 Aug 14, 2018 0 Aug 15, 2018 0 Aug 16, 2018 0 Aug 17, 2018 0 Aug 18, 2018 0 Aug 19, 2018 0 Aug 20, 2018 0 Aug 21, 2018 .43 Aug 22, 2018 0 Aug 23, 2018 0 Aug 24, 2018 .07 Aug 25, 2018 1.17 Aug 26, 2018 0 Aug 27, 2018 0 Aug 28, 2018 .28 Aug 29, 2018 .26 Aug 30, 2018 0 Aug 31, 2018 .10 Sep 1, 2018 0 Sep 2, 2018 0 Sep 3, 2018 .13 Sep 4, 2018 .03 Sep 5, 2018 .83 Sep 6, 2018 0 Sep 7, 2018 0 Sep 8, 2018 0 Sep 9, 2018 0 Sep 10, 2018 0 Sep 11, 2018 0 Sep 12, 2018 0 Sep 13, 2018 0 Sep 14, 2018 0 Sep 15, 2018 0 Sep 16, 2018 0 Sep 17, 2018 0 Sep 18, 2018 .32 Sep 19, 2018 T Sep 20, 2018 .14 Sep 21, 2018 3.02 Sep 22, 2018 0 Sep 23, 2018 0 Sep 24, 2018 0 Sep 25, 2018 .37 Sep 26, 2018 .09 Sep 27, 2018 0 Sherwood Road Properties, Mounds View ATTACHMENT C Slope (%): NWI Classification: Are climatic/hydrologic conditions of the site typical for this time of the year? Are vegetation , soil , or hydrology significantly disturbed? Are vegetation , soil , or hydrology naturally problematic? (If needed, explain any answers in remarks) Hydrophytic vegetation present?Is the sampled area within a wetland? Hydric soil present? Indicators of wetland hydrology present? If yes, optional wetland site ID: Remarks: (Explain alternative procedures here or in a separate report.) Primary Indicators (minimum of one is required; check all that apply) Describe recorded data (stream gauge, monitoring well, aerial photos, previous inspections), if available: Remarks: 9-13-2018Sampling Date:Sherwood Road Properties various owners - see joint form SPASampling PointMN Project/Site: City/County: Applicant/Owner: State: Mounds View/Rams Investigator(s): M. Barrett Section, Township, Range: Datum: Sec 6, T30, R23 (If no, explain in remarks) Are "normal circumstances" present? Landform (hillslope, terrace, etc.): Local relief (concave, convex, none):slight depression 0-1 Long.: N Soil Map Unit NameLino loamy fine sand Lat.: Yes Water Marks (B1) Saturation (A3) Saturation Visible on Aerial Imagery (C9) Iron Deposits (B5)Recent Iron Reduction in Tilled Soils (C6) Oxidized Rhizospheres on Living Roots (C3) Hydrogen Sulfide Odor (C1) Algal Mat or Crust (B4) Thin Muck Surface (C7) Inundation Visible on Aerial Imagery (B7) Marl Deposits (B15) Drift Deposits (B3) Sediment Deposits (B2) Presence of Reduced Iron (C4) Moss Trim Lines (B16) Shallow Aquitard (D3) Geomorphic Position (D2) Dry-Season Water Table (C2) Crayfish Burrows (C8) Stunted or Stressed Plants (D1) SUMMARY OF FINDINGS N N N High Water Table (A2) Surface Water (A1) Aquatic Fauna (B13) Water-Stained Leaves (B9) WETLAND DETERMINATION DATA FORM - Northcentral and Northeast Region D2 NA due to due to the presence of a functioning drainage system and high permeability soils. Yes Climatic conditions atypical (dry) based on gridded database method. N HYDROLOGY No Microtopographic Relief (D4) FAC-Neutral Test (D5) No Indicators of wetland hydrology present?N Secondary Indicators (minimum of two required) Surface Soil Cracks (B6) none Concave Drainage Patterns (B10) No X Dry to 24 inches. (includes capillary fringe) Field Observations: Surface water present? Water table present? Saturation present? Depth (inches):Yes X Depth (inches): Yes X Depth (inches): Other (Explain in Remarks) Sparsely Vegetated Concave Surface (B8) US Army Corps of Engineers Northcentral and Northeast Region 50/20 Thresholds Tree Stratum 1 Sapling/Shrub Stratum 2 Herb Stratum 3 Woody Vine Stratum 4 5 Dominance Test Worksheet 6 7 8 (A) 9 10 (B) = Total Cover (A/B) 1 Prevalence Index Worksheet 2 Total % Cover of: 3 OBL species x 1 = 4 FACW species x 2 = 5 FAC species x 3 = 6 FACU species x 4 = 7 UPL species x 5 = 8 Column totals (A)(B) 9 Prevalence Index = B/A = 10 = Total Cover Hydrophytic Vegetation Indicators: Rapid test for hydrophytic vegetation Dominance test is >50% 1 Prevalence index is ≤3.0* 2 3 4 5 6 7 8 9 10 11 12 13 14 15 = Total Cover 1 2 3 4 5 = Total Cover Remarks: (Include photo numbers here or on a separate sheet) Prevalence index > 3. Problematic hydrophytic vegetation* (explain) 50%20% 0 3 8 8 20 Sampling Point:SPAVEGETATION - Use scientific names of plants Morphological adaptations* (provide supporting data in Remarks or on a separate sheet) 0 Indicator Status Number of Dominant Species that are OBL, FACW, or FAC: Percent of Dominant Species that are OBL, FACW, or FAC: Total Number of Dominant Species Across all Strata: 0 0 55 0 40 0 0 Woody Vine Stratum Plot Size ( 30 ) Absolute % Cover Dominant Species 15 Herb Stratum Plot Size ( 5 ) Absolute % Cover Dominant Species Indicator Status Dominant Species Indicator Status Rhamnus cathartica 15 Y FAC 40 Sapling/Shrub Stratum Plot Size ( 15 ) Absolute % Cover Tree Stratum Plot Size ( 30 Acer saccharum 0 160 45 0 0 )Absolute % Cover Dominant Species Indicator Status 40 Y FACU N Hydrophytic vegetation present? *Indicators of hydric soil and wetland hydrology must be present, unless disturbed or problematic Definitions of Vegetation Strata: Tree - Woody plants 3 in. (7.6 cm) or more in diameter at breast height (DBH), regardless of height. Sapling/shrub - Woody plants less than 3 in. DBH and greater than 3.28 ft (1 m) tall. Herb - All herbaceous (non-woody) plants, regardless of size, and woody plants less than 3.28 ft tall. Woody vines - All woody vines greater than 3.28 ft in height. 205 1 50.00% 3.73 2 15 0 0 US Army Corps of Engineers Northcentral and Northeast Region Profile Description: (Describe to the depth needed to document the indicator or confirm the absence of indicators.) Indicators for Problematic Hydric Soils: Histosol (A1) 2 cm Muck (A10) (LRR K, L, MLRA 149B Histic Epipedon (A2) Coast Prairie Redox (A16) (LRR K, L, R) Black Histic (A3) 5 cm Mucky Peat or Peat (S3) (LRR K, L, R) Hydrogen Sulfide (A4)Dark Surface (S7) (LRR K, L Stratified Layers (A5) Polyvalue Below Surface (S8) (LRR K, L) Depleted Below Dark Surface (A11 Thin Dark Surface (S9) (LRR K, L) Thick Dark Surface (A12) Loamy Gleyed Matrix (F2)Iron-Manganese Masses (F12) (LRR K, L, R) Sandy Mucky Mineral (S1) Depleted Matrix (F3)Piedmont Floodplain Soils (F19) (MLRA 149B) Sandy Gleyed Matrix (S4)Redox Dark Surface (F6)Mesic Spodic (TA6) (MLRA 144A, 145, 149B) Sandy Redox (S5)Depleted Dark Surface (F7) Red Parent Material (F21) Stripped Matrix (S6) Redox Depressions (F8)Very Shallow Dark Surface (TF12) Other (Explain in Remarks) *Indicators of hydrophytic vegetation and wetland hydrology must be present, unless disturbed or problematic Restrictive Layer (if observed): Remarks: Type* Redox Features Texture loamy sand0-24 10010YR 2/2 Sampling Point:SPASOIL *Type: C=Concentration, D=Depletion, RM=Reduced Matrix, CS=Covered or Coated Sand Grains **Location: PL=Pore Lining, M=Matrix Depth (Inches) Matrix %Color (moist) Color (moist) % Loc** Remarks Polyvalue Below Surface (S8) (LRR R, MLRA Thin Dark Surface (S9) (LRR R, MLRA 149B Loamy Mucky Mineral (F1) (LRR K, L) Dark Surface (S7) (LRR R, MLRA 149B) Depth (inches): NHydric soil present? Hydric Soil Indicators: Type: US Army Corps of Engineers Northcentral and Northeast Region Minnesota Wetland Conservation Act Notice of Decision Local Government Unit (LGU) Address Rice Creek Watershed District 4325 Pheasant Ridge Dr. NE #611 Blaine, MN 55449 1. PROJECT INFORMATION Applicant Name (1) Project Name Date of Application Christopher J Johnson Sherwood Road Properties Application Number Nu Way Development, Inc 10/01/2018 18-137R 8200 Long Lake Road Mounds View, MN 55112 Applicant Name (2) Applicant Name (3) Applicant Name (4) Michael Lauterbach Hazel Jennings Carlos/Lina Nazareth 8193 Eastwood Road 8185 Eastwood Road 8171 Eastwood Road Mounds View, MN 55112 Mounds View, MN 55112 Mounds View, MN 55112 Applicant Name (5) Applicant Name (6) Applicant Name (7) Hans Melgaard Margaret King Daniel Behnken 12138 Harpers Ct NE 2617 Sherwood Road 8578202 n1 Street N Blaine, MN 55449 Mounds View, MN 55112 Forest Lake, MN 55025 Attach site locator map. Type of Decision: Wetland Boundary or Type No -Loss Exemption Sequencing Replacement Plan Banking Plan l'echnical Evaluation Panel Pindmas and Kecommendatlon Approve ® Approve with conditions Deny Summary (or attach): A site visit was attended on 10/12/2018 by representatives from BWSR, RCWD, and Kjolhaug Environmental Services. The TEP recommended that a small wetland basin be added adjacent to the drainage ditch as it turns east. The consultant provided a revised figure on 10/15/2018. 2. LOCAL GOVERNMENT UNIT DECISION Date of Decision: 11/14/2018 Approved ® Approved with conditions (include below) Denied LGU Findings and Conclusions (attach additional sheets as necessary): BWSR Forms 7-1 -10 Page 1 of The LGU finds the wetland boundaries illustrated in the attached figure titled: Revised Figure 2 - Existing Conditions by Kjolhaug Environmental Services, undated (RCWD received 10/15/2018), accurate and supported by the submitted wetland delineation for the LGU administration of the WCA. The local government unit decision is valid for five years. However, the decision will cease to be valid before then, if the Technical Evaluation Panel determines that the wetland boundary or type has changed due to natural or artificial changes to the hydrology, vegetation, or soils of the area. The LGU finds that the wetland typing may need to be reviewed in conjunction with any future project. The applicant needs to submit a survey of the wetland boundary as well as gps points of the wetland delineation in a form acceptable to the RCWD. Advisory Note: A Wetland Replacement Plan application must include a statement from the MnDNR, or the applicant's licensed professional, based on MnDNR database review, as to the potential presence of an endangered or threatened species or potential impact to a rare natural community (Minn. Rules 8420.0330, subp. 3.A(5); 8420.0525). Applicants should initiate this review early. For Replacement Plans using credits from the State Wetland Bank: Bank Account # Bank Service Area County Credits Approved for Name Title Phil Belfiori Withdrawal (sq. ft. or nearest .01 Signature r Date Phone Number and E-mail acre) Replacement Plan Approval Conditions. In addition to any conditions specified by the LGU, the approval of a Wetland Replacement Plan is conditional upon the following: Financial Assurance: For project -specific replacement that is not in -advance, a financial assurance specified by the LGU must be submitted to the LGU in accordance with MN Rule 8420.0522, Subp. 9 (List amount and type in LGU Findings). Deed Recording: For project -specific replacement, evidence must be provided to the LGU that the BWSR "Declaration of Restrictions and Covenants" and "Consent to Replacement Wetland" forms have been filed with the county recorder's office in which the replacement wetland is located. Credit Withdrawal: For replacement consisting of wetland bank credits, confirmation that BWSR has withdrawn the credits from the state wetland bank as specified in the approved replacement plan. Wetlands may not be impacted until all applicable conditions have been met! LGU Authorized Simature: Signing and mailing of this completed form to the appropriate recipients in accordance with 8420.0255, Subp. 5 provides notice that a decision was made by the LGU under the Wetland Conservation Act as specified above. If additional details on the decision exist, they have been provided to the landowner and are available from the LGU upon request. Name Title Phil Belfiori Administrator Signature r Date Phone Number and E-mail 11/14/2018 763-398-3071 pbelfiori@ricecreek.org THIS DECISION ONLY APPLIES TO THE MINNESOTA WETLAND CONSERVATION ACT. Additional approvals or permits from local, state, and federal agencies may be required. Check with all appropriate authorities before commencing work in or near wetlands. Applicants proceed at their own risk if work authorized by this decision is started before the time period for appeal (30 days) has expired. If this decision is reversed or revised under appeal, the applicant may be responsible for restoring or replacing all wetland impacts. BWSR Forms 7-1-10 Page 2 of 4 3. APPEAL OF THIS DECISION Pursuant to MN Rule 8420.0905, any appeal of this decision can only be commenced by mailing a petition for appeal, including applicable fee, within thirty (30) calendar days of the date of the mailing of this Notice to the following as indicated: Check one- Appeal of an LGU staff decision. Send Appeal of LGU governing body decision. Send petition and $0 fee (if applicable) to: petition and $500 filing fee to: Nick Tomczik Executive Director 4325 Pheasant Ridge Dr. NE #611 Minnesota Board of Water and Soil Resources Blaine, MN 55449 520 Lafayette Road North St. Paul, MN 55155 SWCD TEP member: 4. LIST OF ADDRESSEES BWSR TEP member: Michael Schumann Ben Meyer Ramsey Conservation District MN BWSR 1425 Paul Kirkwold Drive 520 Lafayette Rd. N. Arden Hills, MN 55112 St. Paul, MN 55155 Michael.Schumann@co.ramsey.mn.us Ben.Meyer@state.mn.us DNR TEP member: Jenifer Sorensen MN DNR Ecological & Water Resources 1200 Warner Rd. St. Paul, MN 55106 Jenifer.Sorensen@state.mn.us Applicant (notice only) and Landowner/Consultant (if different) Christopher J Johnson Nu Way Development, Inc 8200 Long Lake Road Mounds View, MN 55112 Members of the public who requested notice notice only): City of Mounds View Corps of Engineers Project Manager (notice only): TBD U.S. Army Corps of Engineers 180 East Fifth Street, Suite 700 St. Paul, MN 55101 mvp-reg-inquiry@usace.army.mil Applicant (notice only) and Landowner/Consultant (if different): Carlos/Lina Nazareth DNR Regional Office (if different): Rebecca Horton MN DNR Ecological & Water Resources 1200 Warner Rd. St. Paul, MN 55106 becky.horton@state.mn.us Applicant (notice only) and Landowner/Consultant (if different): Melissa Barrett Kjolhaug Environmental Services 2500 Shadywood Road Suite 130 Orono, MN 55331 melissa@kj olhaugenv.com BWSR Wetland Bank Coordinator (wetland bank plan applications only) Tim Smith MN BWSR 520 Lafayette Rd. N. St. Paul, MN 55155 tim.j.smith@state.mn.us Applicant (notice only) and Landowner/Consultant (if different): Hazel Jennings 8185 Eastwood Road Mounds View, MN 55112 Applicant (notice only) and Landowner/Consultant (if different): Michael Lauterbach BWSR Forms 7-1-10 Page 3 of 8171 Eastwood Road Mounds View, MN 55112 Applicant (notice only) and Landowner/Consultant (if different): Hans Melgaard 12138 Harpers Ct NE Blaine, MN 55449 8193 Eastwood Road Mounds View, MN 55112 Applicant (notice only) and Landowner/Consultant (if different): Margaret King 2617 Sherwood Road Mounds View, MN 55112 5. ATTACHMENTS In addition to the site locator map, list any other attachments: Revised Figure 2 - Existing Conditions by Kjolhaug Environmental Services, undated (RCWD received 10/15/2018) BWSR Forms 7-1-10 Page 4 of 4 Legend SiteLocation CityProperty OpenStreetMap (and) contributors, CC-BY-SA Figure 1 - Site Location Sherwood Road Properties (KES 2018-133) 0500 Mounds View, MinnesotaFeet Note: Boundaries indicated on this figure are approximate and do not constitute an official survey product. Source: ESRI Streets Basemap 910 SPA Slight Depression Drains outHigh ofsiteGround WL1 0.02-ac High Ground Drainageway 710-ftonsite 910 Drains into site SiteLocation CityProperty SamplePoint Drainageway Wetland RamseyCountyLidar Revised Figure 2 - Existing Conditions (2016 MnGEO Photo) Sherwood Road Properties (KES 2018-133) 0250 Mounds View, MinnesotaFeet Note: Boundaries indicated on this figure are approximate and do not constitute an official survey product. Source: MnGeo, ESRI Imagery Basemap 2401 Mounds View Blvd. Mounds View, MN 55112 (763) 717-4000 * Fax (763) 717-4019 www.moundsview-mn.org * info@moundsviewmn.org November 27, 2018 Dear Neighbor, Thank you to all who were able to attend a neighborhood meeting, held Tuesday, November 20th regarding a proposed development. Twenty-six households attended. In summary, a number of property owners (not all) are working with a developer to redevelop the wooded area in the middle of the block, bordered by Ardan Ave (north), Long Lake Rd (east), Sherwood Rd (south), and Eastwood Rd (west). The development would include up to 14 new single-family homes, according to the submitted sketch plan. The intent of the Neighborhood Meeting was to provide transparency, and an opportunity for people to ask questions and provide opinions. This project has been on-again and off-again for ten years or more. There were many opinions expressed, both for and against the project. As requested, included with this mailing is: • Aerial photo of affected areas, shown at the meeting • Sketch plan of the proposed development, shown at the meeting The Wetland Site Assessment, discussed at the meeting may be downloaded from the City’s website (25 pages). Below are the contacts for the Mounds View City Councilmembers, and the developer. All of this information is included on the City’s website: www.moundsviewmn.org Councilmember Address Home Phone City Hall Voicemail Email Carol A. Mueller, Mayor 8343 Groveland Road 763.458.2719 763.717.4006 carol.mueller@moundsviewmn.org Sherry Gunn 5459 Landmark Circle 612.619.4333 763.717.4005 sherry.gunn@moundsviewmn.org Al Hull 8495 Red Oak Drive 763.600.1102 763.717.4004 al.hull@moundsviewmn.org Bill Bergeron 7729 Woodlawn Drive 763.780.2937 763.717.4003 bill.bergeron@moundsviewmn.org Gary Meehlhause 7400 Parkview Drive 763.780.9695 763.717.4007 gary.meehlhause@moundsviewmn.org Developer: Marty Harstad, mharstad@comcast.net or 651-636-9991 The next step for this project to continue is for those participating landowners to enter into a purchase agreement with the Developer, in order for the Developer to submit an application for Development to the City. Until an application has been made for development, there are no planned public meetings, and no additional information available other than what has been provided. If questions, please contact Jon Sevald, Community Development Director, (763) 717-4022 or jon.sevald@moundsviewmn.org . Jon Sevald, AICP Community Development Director This letter was mailed to those property owners and occupants of the affected block, and those who signed the sign-in sheet at the Nov 20 mtg. The Mounds View Vision A Thriving Desirable Community Item No: 08D Meeting Date: Feb 10, 2020 Type of Business: Council Business City Administrator Review: _____ City of Mounds View Staff Report To: Honorable Mayor and City Council From: Jon Sevald, Community Development Director Item Title/Subject: Resolution 9237, Approving Development Agreement for Long Lake Woods Second Addition Introduction: For some time, the City has had discussions with property owners and Marty Harstad about extending Greenwood Drive north of Sherwood Road, creating 12 single-family lots. The City Council has been supportive of this project, including the use of eminent domain if necessary, to acquire land for the new road. The use of eminent domain necessitates that the City will build the road and public improvements (vs. the developer), and assess costs to benefiting property owners. Those costs are not known at this time. Discussion: The current step is for the City and the seven participating property owners to enter into a Development Agreement. This agreement includes a provision that Marty Harstad (Harstad Hills, Inc) will represent the landowners as the developer, and that the developer will reimburse the City for all associated costs. Once the Development Agreement is signed, the City will complete a feasibility study, which will include cost estimates for public improvements (road, sewer, water, etc.). Then, the developer will submit an application for plat approval (spring). After approval (late spring), the City will negotiate with any non-participating property owners (Doll) in acquiring right-of-way. If an agreement is not made, the City will begin condemnation proceedings to acquire the necessary land (25’ – 30’ strip). Strategic Plan Strategy/Goal: Maintain and plan for infrastructure improvements including waste water, water, & transportation. Financial Impact: Unknown at this time. The City’s costs will be reimbursed by the developer through assessments to benefiting properties. Recommendation: Staff recommends approval of Resolution 9237, and authorizing the Mayor and City Administrator to sign the Development Agreement on behalf of the City. Respectfully submitted, Jon Sevald, AICP Community Development Director 636104v1MU210-262 RESOLUTION NO. 9237 CITY OF MOUNDS VIEW COUNTY OF RAMSEY STATE OF MINNESOTA RESOLUTION APPROVING DEVELOPMENT AGREEMENT FOR LONG LAKE WOODS SECOND ADDITION WHEREAS, to facilitate development of certain real property in the City of Mounds View, Minnesota (the “City”) located generally north of Sherwood Road, east of Eastwood Road, south of Ardan Avenue, and west of Long Lake Road, the City proposes to enter into a Development Agreement (the “Contract”) with certain individuals and entities that own property within said area; and WHEREAS, the City Council has reviewed the Contract and finds that the execution thereof by the City and performance of its obligations thereunder are in the best interest of the City and its residents. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Mounds View, Minnesota that the Contract is approved in substantially the form presented to the City Council on the date of this Resolution, subject only to modifications that are approved by the City Attorney and do not alter the general substance of the agreement. NOW, THEREFORE, BE IT FURTHER RESOLVED, by the City Council of the City of Mounds View, Minnesota that the proper City staff and officials are authorized to execute the final version of the Contract and take all actions necessary to perform the City’s obligations under the Contract as a whole, including without limitation, the execution of any documents to which the City is a party referenced in or attached to the Contract, and any deed or other documents necessary, all as described in the Contract. Dated: February 10, 2020. ____________________________________ Carol A. Mueller, Mayor ATTEST: ____________________________________ Nyle Zikmund, City Administrator 1 628764v3MU210-262 DEVELOPMENT AGREEMENT LONG LAKE WOODS SECOND ADDITION THIS DEVELOPMENT AGREEMENT (the “Agreement”) is made this ____ day of _______________, 2020, by and between the City of Mounds View, a Minnesota municipal corporation, (the “City”), and the following individuals and entities which shall be referred to collectively herein as the “Developer”: NuWay Development, Inc., a Minnesota business corporation, Daniel Behnken and Gwen Behnken, a married couple, Margaret Krig, a single person, Hans Melgaard and Ilona Melgaard, as Trustees of the Hans Leland and Ilona L. Melgaard Trust dated October 31, 2018, Carlos Nazareth and Lina Nazareth, a married couple, Hazel Jennings, a single person, and Michael Lauterbach [need marital status], Patrick Lauterbach [need marital status], and Steven Lauterbach [need marital status]. Recitals A. The individuals and entities that make up the Developer are fee owners of certain real estate located in the City of Mounds View, Ramsey County, Minnesota, legally described as (See Exhibit A) (the “Property”). B. The Developer desires to plat and develop a portion of the Property (the “Subdivision Property”) as 12 single-family residential lots (the “Subdivision”), subject to the conditions and requirements contained in the Mounds View City Code, this Agreement and state statutes. A depiction of the proposed Subdivision is attached hereto as Exhibit B. C. The Subdivision will require certain public improvements, including a northbound extension of Greenwood Drive and the extension of public sewer and water to provide both adequate access and public utilities to the Subdivision (collectively, the “Public Improvements”). D. The City is willing to construct and install the Public Improvements as a public project in accordance with all state and local laws and this Agreement, with the understanding that 2 628764v3MU210-262 it will specially assess the Property and any other parcels that will benefit from the Public Improvements for the costs associated with said Public Improvements. E. Although public right-of-way already exists over much of the area whereby the Public Improvements will be constructed and installed, there is additional right-of-way that will either be dedicated by the Developer via the plat or acquired by the City through the process of eminent domain. The Developer desires to commit to dedicating such right-of-way and reimbursing the City for all costs associated with acquiring the additional right-of-way necessary for the Public Improvements. F. The Developer agrees that the development of the Subdivision Property and the City’s construction and installation of the Public Improvements shall be facilitated and governed in accordance with the terms and conditions of this Agreement. Agreement In consideration of each party’s promises as set forth in this Agreement, it is mutually agreed as follows: ARTICLE ONE REPRESENTATIONS AND WARRANTIES 1.01. City Representations and Warranties. The City makes the following representations as the basis for the undertakings on its part contained herein: A. The City is a municipal corporation under the laws of Minnesota. B. The City has the right, power, and authority to execute, deliver, and perform its obligations under this Agreement. 1.02. Developer Representations and Warranties. The Developer makes the following representations as the basis for the undertakings on its part contained herein: A. The Developer is fee owner of the Property. B. The Developer has the right, power, and authority to execute, deliver, and perform its obligations under this Agreement. The Developer assures the City that the individuals who execute this Agreement on behalf of the persons and entities that are collectively referred to as the Developer are duly authorized to sign on behalf of said persons and entities and legally bind said persons and entities to the term and conditions set forth herein. C. The Developer is not in default under any lease, contract, or agreement to which it is a party or by which it is bound which would affect its performance under this Agreement. The Developer is not a party to or bound by any mortgage, lien, lease, agreement, instrument, order, judgment, or decree which would prohibit the execution or performance of this Agreement by the Developer or prohibit any of the transactions provided for in this Agreement. 3 628764v3MU210-262 D. The Developer has complied with and will continue to comply with all applicable federal, state and local statutes, laws, ordinances, and regulations including, without limitation, any permits, licenses, and applicable zoning, environmental, or other laws, ordinances, or regulations affecting the Property. The Developer is not aware of any pending or threatened claim of any such violation. Without limitation of the foregoing, the Developer expressly acknowledges and agrees that it has and shall at all times comply with each and every provision of the City’s subdivision, zoning, and other related municipal code regulations. E. There is no suit, action, arbitration, or legal, administrative, or other proceeding, or governmental investigation pending or threatened against or affecting the Developer or the Property. The Developer is not in default with respect to any order, writ, injunction, or decree of any federal, state, local or foreign court, department, agency, or instrumentality. F. None of the representations and warranties made by the Developer or made in any exhibit hereto or memorandum or writing furnished or to be furnished by the Developer or on its behalf contains or will contain any untrue statement of material fact or omits any material fact, the omission of which would be misleading. 1.03. Incorporation of Recitals and Exhibits. The Recitals set forth in the preamble to this Agreement and the Exhibits attached to this Agreement are incorporated into this Agreement as if fully set forth herein. ARTICLE TWO PUBLIC IMPROVEMENTS; PLATTING REQUIREMENTS 2.01. Public Improvements. A. The City intends to initiate a public improvement project pursuant to its authority under state and local laws in order to construct and install the Public Improvements. The Public Improvements will extend the system of City streets (Greenwood Drive) and utilities to provide adequate access, sewer, and water to the lots created within the Subdivision. To ensure that the City has valid and collectible assessments for such project, each of the individual owners and entities that collectively make up the Developer shall execute a separate Petition and Waiver Agreement in the general form attached hereto as Exhibit C, each of which shall meet the requirements of the City Attorney. The parties to this Agreement understand and acknowledge that the City will not move forward with the Public Improvements, nor shall it consider a resolution authorizing any condemnation related to the Public Improvements and the acquisition necessitated thereby, unless and until all individuals or entities that collectively make up the Developer have executed a Petition and Waiver Agreement that meets all City requirements. B. The Developer agrees to grant or dedicate via the plat for the Subdivision all right-of- way necessary for the Public Improvements within the Subdivision Property. The City agrees to initiate efforts via its authority to exercise eminent domain to acquire that portion of right-of-way that is not within the Subdivision Property but that is otherwise required for the Public Improvements, in the City’s sole discretion, to construct and install the Public Improvements so that the Subdivision has 4 628764v3MU210-262 adequate access and utilities. All of the City’s costs associated with said acquisition, including, but not necessarily limited to, administrative costs, appraisal costs, attorneys’ fees, filing fees, real estate costs, commissioners fees, and owners’ fees, shall be the responsibility of the Developer and shall be reimbursed to the City by the Developer in accordance with Section 2.05 of this Agreement. 2.02. Platting. The Developer shall plat the Subdivision Property in accordance with the Mounds View City Code, this Agreement, state statutes, and any City approvals. Prior to approval of the final plat by the City, the Developer shall amend the preliminary plat as required by any preliminary plat approval, the Mounds View City Code, this Agreement, City consultants, and state statutes. The City shall be under no obligation to consider a resolution authorizing any condemnation related to the Public Improvements and the acquisition necessitated thereby unless and until the Developer has submitted a completed application for preliminary plat approval and has further provided the City with any assurances as it may require to show that the Developer will remain in full compliance with Section 2.05 of this Agreement. 2.03. Permits. The Developer shall obtain any necessary permits from the City, the Minnesota Pollution Control Agency, the Minnesota Department of Natural Resources, the Minnesota Department of Health, the Minnesota Department of Transportation, Ramsey County, and any other agency that may have jurisdiction over the Subdivision Property before proceeding with any construction. 2.04. Property Monumentation. The Developer agrees to install all Subdivision monumentation (permanent) within six (6) months from the date of recording of the final plat, and shall submit to the City written certification by a licensed land surveyor that the required monuments have been installed throughout the plat. All monuments shall be marked with a steel or fiberglass post to allow for easy location following their installation. 2.05. Payment of City Costs. The Developer agrees to reimburse the City its actual costs regarding: (i) preparing and administering this Agreement and all other documents, permits, and applications related thereto; (ii) processing the plat and any other approvals relating to the Property and the development contemplated herein; and (iii) acquiring the right-of-way necessary for the Public Improvements as provided in Section 2.01(B). In addition to and without limitation of the foregoing, the costs to be reimbursed by the Developer to the City shall include, but not be limited to, attorneys’ fees, engineering fees, inspection fees, and the costs and fees of other technical and professional assistance (including but not limited to the cost of City staff time) incurred or expended by the City on activities arising out of this Agreement, and other undertakings related thereto. The Developer has submitted $5,000 to the City to be applied to payment of the costs described in this Section 2.05, provided that if such costs exceed this amount, the Developer shall, upon demand by the City, pay such additional costs to the City within 10 days of such demand, and provided further that the amount by which this deposit exceeds the City’s actual costs, if any, shall be returned to the Developer. In the event City does not recover its costs under the provisions of this Section 2.05, as an additional remedy, City may, at its option, assess equally the parcels that make up the Property in the manner provided by Minnesota Statutes, Chapter 429, and Developer hereby consents to the levy of such special assessments without notice or hearing and waives its rights to appeal such assessments pursuant to Minnesota Statutes, Section 429.081, provided the total amount collectively levied, 5 628764v3MU210-262 together with the funds deposited with the City under this paragraph, does not exceed the expenses actually incurred by the City. Further, the City may, at its option, as an additional remedy, recover expenses actually incurred by the City, in the manner provided by Minnesota Statutes, Section 415.01, 366.011 and 366.012, and the Developer hereby consents to the levy of such assessments without notice or hearing and waives its rights to appeal such assessments pursuant to such Minnesota Statutes, provided the amount collectively levied, together with the funds deposited with the City, does not exceed the expenses actually incurred by the City pursuant to this Agreement. This Section 2.05 shall survive termination of this Agreement and shall be binding on the Developer regardless of the enforceability of any other provision of this Agreement. 2.06. Additional Requirements. The Developer shall satisfy, complete and abide by all requirements set forth in any City approvals, including adequately addressing all items as may be directed by the City Attorney, City Engineer or others with review and approval authority of the City including any plat, or engineer opinions and the City Attorney’s plat opinion, and all adopted City ordinances and resolutions affecting the Property, all of which are incorporated herein by reference as if fully set forth in this Agreement. 2.07. Park Dedications/Fees/Dedications. Without limitation of any other obligation of the Developer contained in this Agreement or set forth in federal, state, or local law, the Developer agrees to comply with any dedication requirements, including park dedications or payments in lieu which may be required by the City’s subdivision regulations. Such requirements may be memorialized in the preliminary and final plat approval resolutions. The Developer further expressly acknowledges and agrees that all easements and other rights in the Subdivision Property necessary and related to the City’s control over the public dedications (all of which shall be described in the plat required by the City’s subdivision regulations), shall inure to the City upon the Developer’s compliance with this Agreement and approval and recording of a final plat as set forth in the City’s subdivision regulations. 2.08. City Attorney Review; Title Work. Prior to recording the final plat with Ramsey County, the Developer agrees to provide the City with a current title work for the Property identifying any other entity with a legal interest in the Property, including but not limited to any entity with a mortgage interest, easement interest, etc. Any plat approval is subject to the Developer’s compliance with this provision. The Developer shall provide an updated and certified Abstract of Title and/or Registered Property Abstract as required by Minn. Stat. § 505.03, or in the alternative, the Developer must provide an updated Commitment for a Title Insurance Policy for the Subdivision Property naming the City as the proposed insured and with the amount of coverage for this policy being equal to $100,000.00 per acre dedicated to the City (including but not limited to streets, rights-of-way, park dedication, and drainage and utility easements). The above-mentioned evidence of title shall be subject to the review and approval of the City Attorney to determine what entities must execute the final plat and other documents to be recorded against the Subdivision Property. In the event the Developer provides the City with a Commitment for a Title Insurance Policy, the Developer shall cause a Title Insurance Policy to be issued consistent with the Commitment for a Title Insurance Policy provided by the 6 628764v3MU210-262 Developer and the requirements of the City Attorney and with an effective date on which the final plat is recorded (the City will not issue any building permits or certificates of occupancy until it is provided with said Title Insurance Policy). Further, Developer shall provide the City with evidence, which sufficiency shall be determined by the City, that all documents required to be recorded pursuant to this Agreement and by the City Attorney are recorded and all conditions for release of the final plat have been met prior to the City processing or approving any building permits or other permits applicable to the development of the Subdivision Property. 2.09. Plat Modifications and Revisions. The parties to this Agreement acknowledge that various potential modifications and revision issues associated with the plat may need to occur. The Developer agrees to undertake, assist with and resolve such issues as directed by the City. The Developer and the City agree to cooperate with each other and their representatives regarding any reasonable requests made subsequent to the execution of this Agreement to revise or correct any errors in the plat and to provide any and all additional documentation deemed necessary by either party to effectuate such revisions or corrections to the plat. ARTICLE THREE ADDITIONAL PROVISIONS 3.01. Assignment. The Developer may not assign any of its obligations under this Agreement without the prior written consent of the City. 3.02. Amendment. Any amendment to this Agreement must be in writing and signed by all parties. 3.03. Attorneys’ Fees. The Developer agrees to pay the City’s costs and expenses, including attorneys’ fees, in the event a suit or action is brought by the City against the Developer to enforce the terms of this Agreement. 3.04. Agreement to Run with Land. This Agreement may be recorded among the land records of Ramsey County, Minnesota. The provisions of this Agreement shall run with the Property and be binding upon the Developer and all assigns or successors in interest. Notwithstanding the foregoing, no conveyance of the Property or any part thereof shall relieve the Developer of its liability for full performance of this Agreement unless the City expressly so releases the Developer in writing. It is the intent of the parties hereto that this Agreement be in a form which is recordable among the land records of Ramsey County, Minnesota and the Developer and the City agree to make any changes in this Agreement which may be necessary to effect the recording and filing of this Agreement against the title of the Property. 3.05. Representatives Not Individually Liable. No official, agent, or employee of the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the City on any obligation or term of this Agreement. 3.06. Notices and Demands. Any notice, demand, or other communication under this Agreement by either party to the other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally: 7 628764v3MU210-262 (a) as to the Developer: Harstad Hills, Inc. 2195 Silver Lake Road New Brighton, MN 55112 Attn: Martin Harstad (b) as to the City: City of Mounds View 2401 County Hwy 10 Mounds View, MN 55112 Attn: City Administrator with a copy to: Scott J. Riggs, City Attorney Kennedy & Graven, Chartered 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 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 as provided in this Section 3.06. The Developer has authorized Martin Harstad of Harstad Hills, Inc. to represent its interests and communicate with the City for all purposes related to the Subdivision, this Agreement, and any City applications related to the development of the Property as contemplated by this Agreement. The City shall have no obligation to send written notices related to this Agreement to the entities that make up the Developer, either individually or collectively, provided, however, that this Agreement may only be amended in a writing signed by all parties hereto and Mr. Harstad shall have no authority to execute such an amendment on behalf of the Developer. 3.07. Disclaimer of Relationships. The Developer acknowledges that nothing contained in this Agreement nor any act by the City or the Developer shall be deemed or construed by the Developer or by any third person to create any relationship of third-party beneficiary, principal and agent, limited or general partner, or joint venture between the City and the Developer. 3.08. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. 3.09. 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 on convenience or otherwise. 3.10. Indemnification. Notwithstanding anything to the contrary in this Agreement, the City, its officials, agents, and employees shall not be liable or responsible in any manner to the Developer, the Developer’s successors or assigns, the Developer’s contractors or subcontractors, material suppliers, laborers, or to any other person or persons for any claim, demand, damage, or cause of action of any kind or character arising out of or by reason of the execution of this Agreement or the performance of this Agreement. The Developer, and the Developer’s successors or assigns, agree to protect, defend 8 628764v3MU210-262 and save the City, and its officials, agents, and employees, harmless from all such claims, demands, damages, and causes of action and the costs, disbursements, and expenses of defending the same, including but not limited to, attorneys’ fees, consulting engineering services, and other technical, administrative, or professional assistance. Nothing in this Agreement shall constitute a waiver or limitation of any immunity or limitation on liability to which the City is entitled under Minnesota Statutes, Chapter 466 or otherwise. This Section 3.10 shall survive termination of this Agreement and shall be binding on the Developer regardless of the enforceability of any other provision of this Agreement. 3.11. Developer’s Default. In the event of default by the Developer as to any work or undertaking required by this Agreement, the City may, at its option, perform the work and the Developer shall promptly reimburse the City for any expense incurred by the City in doing so. This Agreement is a license for the City to act, and it shall not be necessary for the City to seek an order from any court for permission to enter the Subdivision Property for such purposes. If the City does any such work, the City may, in addition to its other remedies, levy special assessments against the lots within the subdivision to recover the costs thereof. For this purpose, the Developer, for itself and its successors and assigns, expressly waives any and all procedural and substantive objections to the special assessments, including, but not limited to, hearing requirements and any claim that the assessments exceed the benefit to the land so assessed. The Developer, for itself and its successors and assigns, also waives any appeal rights otherwise available pursuant to Minnesota Statutes Section 429.081, provided the amount levied does not exceed the expenses actually incurred by the City. Further, the City may, at its option, as an additional remedy, recover expenses actually incurred by the City, in the manner provided by Minnesota Statutes, Section 415.01, 366.011 and 366.012, and the Developer hereby consents to the levy of such assessments without notice or hearing and waives its rights to appeal such assessments pursuant to such Minnesota Statutes, provided the amount levied does not exceed the expenses actually incurred by the City pursuant to this Agreement. 3.12. Compliance with Existing Laws. The Developer warrants that all obligations performed pursuant to this Agreement shall be in compliance with existing Federal, State and City laws, ordinances, pertinent regulations, standards, and specifications of the City. 3.13. Building Permits. This Agreement does not include the approval of a building permit for any structures within the Subdivision. The Developer must submit and the City must approve building plans prior to an application for a building permit for a structure on any lot within the Subdivision. The Developer or the parties applying for any building permit shall be responsible for payment of the customary fees associated with said building permit. 3.14. Miscellaneous Provisions. A. The Developer represents to the City that the development of the Property, the Subdivision, and the plat will comply with all city, county, state, and federal laws and regulations including, but not limited to: subdivision ordinances, zoning ordinances and environmental regulations. If the City determines that the Subdivision, plat, or the development of the Property does not comply, the City may, at its option, refuse to allow construction or development work on the Property until the Developer does comply. Upon the City’s demand, the Developer shall cease 9 628764v3MU210-262 work until there is compliance. Upon the City's demand, the Developer shall correct any and all errors contained in the plat, including but not limited to legal descriptions, names of parties in interest, depictions, etc., solely at the cost of the Developer; further, the Developer shall take all necessary actions such that the plat will be in compliance with existing laws, ordinances, pertinent regulations, standards, and specifications of the City, solely at the cost of the Developer. B. Third parties shall have no recourse against the City under this Agreement. C. Breach of the terms of this Agreement by the Developer shall be grounds for denial of building permits, including for lots sold to third parties. D. Wherever possible, each provision of this Agreement and each related document shall be interpreted so that it is valid under applicable law. If any provision of this Agreement or any related document is to any extent found invalid by a court or other governmental entity of competent jurisdiction, that provision shall be ineffective only to the extent of such invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement or any other related document. E. If building permits are issued prior to the completion and acceptance of any public improvements, the Developer assumes all liability and costs resulting in delays in completion of public improvements and damage to public improvements caused by the City, the Developer, its contractors, subcontractors, material men, employees, agents, or third parties. F. 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. The action or inaction of the City shall not constitute a waiver or amendment to the provisions of this Agreement. To be binding, amendments or waivers shall be in writing and signed by the parties. The City’s failure to promptly take legal action to enforce this Agreement shall not be a waiver or release. G. Each right, power, or remedy herein conferred upon the City is cumulative and in addition to every other right, power, or remedy, express or implied, now or hereafter arising, available to the City, at law or in equity, or under any other agreement, and each and every right, power and remedy herein set forth or otherwise so exciting may be exercised from time to time as often and in such order as may be deemed expedient by the City and shall not be a waiver of the right to exercise at any time thereafter any other right, power, or remedy. H. This Agreement, together with the exhibits hereto, which are incorporated by reference, constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to this Agreement, superseding all prior or contemporaneous proposals, communications, and understandings, whether oral or written, pertaining to the subject matter of this Agreement. 10 628764v3MU210-262 I. No officer, agent, or employee of the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the City on any obligation or term of this Agreement. J. Data provided to the Developer or received from the Developer under this Agreement shall be administered in accordance with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13. [The remainder of this page to remain intentionally blank]. 11 628764v3MU210-262 IN WITNESS OF THE ABOVE, the parties have caused this Agreement to be executed on the date and year written above. CITY OF MOUNDS VIEW By: ____________________________________ Carol Mueller Mayor By: ____________________________________ Nyle Zikmund City Administrator STATE OF MINNESOTA ) ) SS. COUNTY OF RAMSEY ) The foregoing instrument was acknowledged before me this _____ day of ____________, 20___, by Carol Mueller and Nyle Zikmund, the Mayor and City Administrator, respectively, of the City of Mounds View, a Minnesota municipal corporation, on behalf of the City. ____________________________________ Notary Public 12 628764v3MU210-262 DEVELOPER (PID 063023140066) NUWAY DEVELOPMENT, INC. By: ___________________________________ Its: ___________________________________ STATE OF MINNESOTA ) ) SS. COUNTY OF _________ ) The foregoing instrument was acknowledged before me this ______ day of ______________, 20____, by __________________, the _________________ of NuWay Development, Inc., a Minnesota business corporation, on behalf of said corporation. __________________________________ Notary Public 13 628764v3MU210-262 DEVELOPER (PID 063023140073) By: ___________________________________ Daniel Behnken By: ___________________________________ Gwen Behnken STATE OF MINNESOTA ) ) SS. COUNTY OF _________ ) The foregoing instrument was acknowledged before me this ____ day of ______________, 20____, by Daniel Behnken and Gwen Behnken, a married couple. __________________________________ Notary Public 14 628764v3MU210-262 DEVELOPER (PID 063023140067) By: ___________________________________ Margaret M. Krig STATE OF MINNESOTA ) ) SS. COUNTY OF _________ ) The foregoing instrument was acknowledged before me this ____ day of ______________, 20____, by Margaret M. Krig, a single person. __________________________________ Notary Public 15 628764v3MU210-262 DEVELOPER (PID 063023140019) By: ___________________________________ Hans L. Melgaard By: ___________________________________ Ilona L. Melgaard STATE OF MINNESOTA ) ) SS. COUNTY OF _________ ) The foregoing instrument was acknowledged before me this ____ day of ______________, 20____, by Hans L. Melgaard and Ilona L. Melgaard, Trustees of the Hans Leland and Ilona L. Melgaard Trust, dated October 31, 2018. __________________________________ Notary Public 16 628764v3MU210-262 DEVELOPER (PID 063023140017) By: ___________________________________ Carlos Nazareth By: ___________________________________ Lina Nazareth STATE OF MINNESOTA ) ) SS. COUNTY OF _________ ) The foregoing instrument was acknowledged before me this ____ day of ______________, 20____, by Carlos Nazareth and Lina Nazareth, a married couple. __________________________________ Notary Public 17 628764v3MU210-262 DEVELOPER (PID 063023140015) By: ___________________________________ Hazel Jennings STATE OF MINNESOTA ) ) SS. COUNTY OF _________ ) The foregoing instrument was acknowledged before me this ____ day of ______________, 20____, by Hazel Jennings, a single person. __________________________________ Notary Public 18 628764v3MU210-262 DEVELOPER (PID 063023140016) By: ___________________________________ Michael J. Lauterbach By: ___________________________________ Patrick J. Lauterbach STATE OF MINNESOTA ) ) SS. COUNTY OF _________ ) The foregoing instrument was acknowledged before me this ____ day of ______________, 20____, by Michael J. Lauterbach, Patrick J. Lauterbach, and Steven B. Lauterbach, [as tenants in common]. __________________________________ Notary Public This document drafted by: KENNEDY & GRAVEN, CHARTERED 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337-9300 A-1 628764v3MU210-262 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY Parcel 1: Outlot A, Long Lake Woods, according to the recorded plat thereof, and situate in Ramsey County, Minnesota. PID 063023140066 (Torrens Property) Parcel 2: That part of the North 143 feet of the South 405 feet of the Northeast 1/4 which lies Westerly of the East 229.70 feet and lies Easterly of the West 2143 feet of said Northeast 1/4 all in Section 6, Township 30, Range 23, except Long Lake Road, according to the United States Government Survey thereof and situate in Ramsey County, Minnesota. PID 063023140073 (Abstract Property) Parcel 3: All that part of the East 313 feet of the South 405 feet of the West 2112 feet of the Northeast Quarter of Section 6, Township 30, Range 23, except the East 185 feet of the West 2112 feet of the South 250 feet of the Northeast Quarter of Said Section 6, according to the United States Government Survey thereof and situate in Ramsey County, Minnesota. PID 063023140067 (Abstract Property) Parcel 4: The South 1/2 of that part of the Northeast 1/4 of Section 6, Township 30, Range 23, described as: Beginning at a point 2112 feet East of the West line and 405 feet North of the South line of said Northeast 1/4; thence West parallel with the South line of said Northeast 1/4 528 feet; thence North parallel with the West line of said Northeast 1/4 202.5 feet; thence East parallel with the South line of said Northeast 1/4 528 feet; thence South parallel with the West line of said Northeast 1/4 202.5 feet to the point of beginning, except the West 300 feet thereof, according to the United States Government Survey thereof and situate in Ramsey County, Minnesota. PID 063023140019 (Abstract Property) A-2 628764v3MU210-262 Parcel 5: The North One-half (N 1/2) of that part of the Northeast Quarter (NE 1/4) of Section 6, Township 30, Range 23, Ramsey County, Minnesota, described as follows: Beginning at a point Two Thousand One Hundred Twelve feet (2,112') East of the West line, and Four Hundred Five feet (405') North of the South line of said Northeast Quarter (NE 1/4); thence West parallel with the South line of said Northeast Quarter (NE 1/4) a distance of Five Hundred Twenty-eight feet (528'); thence North parallel with the West line of said Northeast Quarter (NE 1/4) a distance of Two Hundred Two and five-tenths feet (202.5'); thence East parallel with the South line of said Northeast Quarter (NE 1/4) a distance of Five Hundred Twenty-eight feet (528'); thence South parallel with the West line of said Northeast Quarter (NE l/4) to the point of beginning, a distance of Two Hundred Two and five-tenths feet (202.5'). PID 063023140017 (Abstract Property) Parcel 6: South 1/2 that part of the NE 1/4 of Section 6, Township 30 North, Range 23 West of the Fourth Prin Meridian, Described as follows: Beginning at a point 2112 feet East of the West line and 810 North of the South line of said NE 1/4, thence West parallel with the South line of said NE 1/4 distance 528 feet, thence South parallel with the West line of said NE 1/4 distance 202.5 feet, thence East parallel with the South line of said NE 1/4 distance 528 feet, thence North parallel with the West line of said NE 1/4 to point of beginning distance 202.5 feet, according to the United States Government Survey thereof and situate in Ramsey County, Minnesota. Subject to an easement for road purposes over the West 25 feet thereof. Subject to a 5 foot strip easement along the rear line for public utility use. PID 063023140015 (Abstract Property) Parcel 7: Nl/2 of that part of the NEl/4 of Sec. 6, T.30, R.23, described as follows: Beginning at a point 2112 feet E. of the W. line and 810 feet N. of the S. line of said NEl/4, thence W. parallel with the S. line of said NEl/4 distant 528 feet, thence S. parallel with the W line of said NE 1/4, distant 202.5 feet, thence E. parallel with the S. line of said NEI14, 528 feet, thence E. parallel with line of said NEl/4 to point of beginning, distant 202.5 feet, containing 2.45 acres more or less, Ramsey County, Minn. Subject to easement for road purposes over the W. 25 feet thereof. Subject to a 5 foot strip easement along the rear line for public utility use such as setting of poles, stringing of wires, trimming or removing of trees, if necessary for line clearance & laying of underground conduits. Restrictions as Spring Lake Park Knolls except 75 feet to front lot line. PID 063023140016 (Abstract Property) B-1 628764v3MU210-262 EXHIBIT B DEPICTION OF THE SUBDIVISION C-1 628764v3MU210-262 EXHIBIT C FORM OF PETITION AND WAIVER AGREEMENT PETITION AND WAIVER AGREEMENT THIS AGREEMENT is made this ____ day of ______________, 2020, by and between the City of Mounds View, a Minnesota municipal corporation (the “City”), and _____________________ (the “Developer”). WITNESSETH: WHEREAS, the Developer is the fee owner of certain real property located in Mounds View and legally described on Exhibit A attached hereto (the “Property”); and WHEREAS, the Property is located generally north of Sherwood Road, east of Eastwood Road, south of Ardan Avenue, and west of Long Lake Road; and WHEREAS, the Developer is in the process of platting and developing the Property as part of a 12-lot, single-family residential subdivision (the “Subdivision”), pursuant to that certain Development Agreement between the Developer and the City, dated __________, 2020 (the “Development Agreement”); and WHEREAS, the Developer desires for the City to construct certain public improvements necessary to serve the Property, including a northbound extension of Greenwood Drive to provide access to the Property and the extension of public water and sewer services to adequately serve the Property (the “Project”); and WHEREAS, the City is willing to construct the Project without notices or hearings, as related to the Developer and the Property, provided the assurances and covenants hereinafter stated are made by the Developer to ensure that the City will have a valid and collectable special assessment as it relates to the Property to finance a portion of the cost of the Project; and WHEREAS, it is in the interest of the parties to provide the City sufficient assurances that the Developer will pay for a portion of the cost of the Project and, were it not for the assurances and covenants hereinafter provided, the City would not otherwise construct the Project without the required notices and hearings, as related to the Developer, although it is willing to do so at the behest, and for the benefit, of the Developer; and WHEREAS, the parties have entered into this Agreement pursuant to and in satisfaction of the terms of the Development Agreement. NOW, THEREFORE, ON THE BASIS OF THE COVENANTS AND OBLIGATIONS CONTAINED HEREIN, THE PARTIES HERETO AGREE AS FOLLOWS: C-2 628764v3MU210-262 1. The Developer represents and warrants it is the fee owner of the Property, that it has full legal power and authority to encumber the Property as herein provided, that in doing so it is not in violation of the terms or conditions of any instrument or agreement of any nature to which it is bound or which relates in any manner to the Property and that there are no other liens or encumbrances against the Property except those of record. 2. The Developer hereby petitions the City for construction of the Project. The Project shall consist generally of a northbound extension of Greenwood Drive, including a cul-de-sac, to provide access to the Property, and the extension of City water and sewer to provide the Property with said City utilities. 3. The Developer consents to the City levying a special assessment for the costs of the Project against the Property in accordance with Minn. Stat., Section 429.061. The principal amount of the special assessment shall not exceed $_____________. The estimated cost of $_____________ is based on preliminary plans for the Project, attached hereto as Exhibit B. The parties understand and agree that said plans might be modified and that the preliminary plans included on Exhibit B were created merely for the purpose of estimating the cost of construction. 4. The Developer waives notice of hearing and hearing pursuant to Minn. Stat. Section 429.031, for the Project and notice of hearing and hearing on the special assessment levied to finance the Project pursuant to Minn. Stat. Section 429.061 and specifically requests that the Project be constructed and the special assessment be levied against the Property without notice of hearing or hearing. 5. The Developer waives the right to appeal the levy of special assessment in accordance with this Agreement pursuant to Minn. Stat. Section 429.081 and further specifically agrees with respect to such special assessment against the Property that: a. All requirements of Minn. Stat., Chapter 429 and the Mounds View City Code with which the City does not comply are hereby waived by the Developer; and b. The increase in fair market value of the Property resulting from construction of the Project will be at least equal to the amount of the special assessment levied against the Property and that such increase in fair market value is a special benefit to the Property. 6. The special assessment levied against the Property shall be payable over such period as the City may determine, but not less than __ years, and shall bear interest at a rate determined by the City, but not more than 2 percent above the City’s cost of financing. The City’s cost of financing shall mean the average coupon rate if the City sells debt to finance the Project. If no debt is sold for the Project, the rate shall be set using the same formula based on special assessment bonds of Minnesota municipalities which have the same credit rating as that of the City and are issued and sold at approximately the same time as the adoption of the resolution levying the special assessment. The first installment of principal and interest C-3 628764v3MU210-262 shall be included in the first tax rolls completed after adoption of the resolution levying the special assessment. 7. The covenants, waivers and agreements contained in this Agreement shall bind the Developer and its successors and assigns and shall run with the Property. It is the intent of the parties hereto that this Agreement be in a form which is recordable among the land records of Ramsey County, Minnesota and the Developer and the City agree to make any changes in this Agreement which may be necessary to effect the recording and filing of this Agreement against the title of the Property. 8. Any notice required to be given under this Agreement shall be deemed given if delivered personally or sent by U.S. mail, postage prepaid, certified and return receipt requested: a) as to Developer: ____________________ ____________________ ____________________ (b) as to the City: City of Mounds View 2401 County Hwy 10 Mounds View, MN 55112 Attn: City Administrator with a copy to: Scott J. Riggs, City Attorney Kennedy & Graven, Chartered 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 or at such other address as either party may from time to time notify the other in writing in accordance with this paragraph. 9. This Agreement shall terminate upon the final payment of the special assessment levied against the Property for the Project. The City agrees to execute and deliver such documents, in recordable form, as are necessary to extinguish its rights hereunder upon receipt of such final payment. C-4 628764v3MU210-262 IN WITNESS WHEREOF, the parties have set their hands the day and year first written above. [DEVELOPER NAME] By: _________________________ Its: _________________________ STATE OF MINNESOTA ) ) ss. COUNTY OF ____________ ) The foregoing instrument was acknowledged before me this _____ day of ___________, 20___, by _____________________, the ________________________ of _____________________, a ___________________________. Notary Public C-5 628764v3MU210-262 CITY OF MOUNDS VIEW By: ____________________________________ Carol Mueller Mayor By: ____________________________________ Nyle Zikmund City Administrator STATE OF MINNESOTA ) ) SS. COUNTY OF RAMSEY ) The foregoing instrument was acknowledged before me this _____ day of ____________, 20___, by Carol Mueller and Nyle Zikmund, the Mayor and City Administrator, respectively, of the City of Mounds View, a Minnesota municipal corporation, on behalf of the City. ____________________________________ Notary Public This document drafted by: Kennedy & Graven, Chartered 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337-9300 C-A-1 628764v3MU210-262 EXHIBIT A TO PETITION AND WAIVER AGREEMENT Legal Description of the Property [to be inserted] C-B-1 628764v3MU210-262 EXHIBIT B TO PETITION AND WAIVER AGREEMENT Preliminary Plans [to be inserted] 1 628764v3MU210-262 DEVELOPMENT AGREEMENT LONG LAKE WOODS SECOND ADDITION THIS DEVELOPMENT AGREEMENT (the “Agreement”) is made this ____ day of _______________, 2020, by and between the City of Mounds View, a Minnesota municipal corporation, (the “City”), and the following individuals and entities which shall be referred to collectively herein as the “Developer”: NuWay Development, Inc., a Minnesota business corporation, Daniel Behnken and Gwen Behnken, a married couple, Margaret Krig, a single person, Hans Melgaard and Ilona Melgaard, as Trustees of the Hans Leland and Ilona L. Melgaard Trust dated October 31, 2018, Carlos Nazareth and Lina Nazareth, a married couple, Hazel Jennings, a single person, and Michael Lauterbach [need marital status], Patrick Lauterbach [need marital status], and Steven Lauterbach [need marital status]. Recitals A. The individuals and entities that make up the Developer are fee owners of certain real estate located in the City of Mounds View, Ramsey County, Minnesota, legally described as (See Exhibit A) (the “Property”). B. The Developer desires to plat and develop a portion of the Property (the “Subdivision Property”) as 12 single-family residential lots (the “Subdivision”), subject to the conditions and requirements contained in the Mounds View City Code, this Agreement and state statutes. A depiction of the proposed Subdivision is attached hereto as Exhibit B. C. The Subdivision will require certain public improvements, including a northbound extension of Greenwood Drive and the extension of public sewer and water to provide both adequate access and public utilities to the Subdivision (collectively, the “Public Improvements”). D. The City is willing to construct and install the Public Improvements as a public project in accordance with all state and local laws and this Agreement, with the understanding that 2 628764v3MU210-262 it will specially assess the Property and any other parcels that will benefit from the Public Improvements for the costs associated with said Public Improvements. E. Although public right-of-way already exists over much of the area whereby the Public Improvements will be constructed and installed, there is additional right-of-way that will either be dedicated by the Developer via the plat or acquired by the City through the process of eminent domain. The Developer desires to commit to dedicating such right-of-way and reimbursing the City for all costs associated with acquiring the additional right-of-way necessary for the Public Improvements. F. The Developer agrees that the development of the Subdivision Property and the City’s construction and installation of the Public Improvements shall be facilitated and governed in accordance with the terms and conditions of this Agreement. Agreement In consideration of each party’s promises as set forth in this Agreement, it is mutually agreed as follows: ARTICLE ONE REPRESENTATIONS AND WARRANTIES 1.01. City Representations and Warranties. The City makes the following representations as the basis for the undertakings on its part contained herein: A. The City is a municipal corporation under the laws of Minnesota. B. The City has the right, power, and authority to execute, deliver, and perform its obligations under this Agreement. 1.02. Developer Representations and Warranties. The Developer makes the following representations as the basis for the undertakings on its part contained herein: A. The Developer is fee owner of the Property. B. The Developer has the right, power, and authority to execute, deliver, and perform its obligations under this Agreement. The Developer assures the City that the individuals who execute this Agreement on behalf of the persons and entities that are collectively referred to as the Developer are duly authorized to sign on behalf of said persons and entities and legally bind said persons and entities to the term and conditions set forth herein. C. The Developer is not in default under any lease, contract, or agreement to which it is a party or by which it is bound which would affect its performance under this Agreement. The Developer is not a party to or bound by any mortgage, lien, lease, agreement, instrument, order, judgment, or decree which would prohibit the execution or performance of this Agreement by the Developer or prohibit any of the transactions provided for in this Agreement. 3 628764v3MU210-262 D. The Developer has complied with and will continue to comply with all applicable federal, state and local statutes, laws, ordinances, and regulations including, without limitation, any permits, licenses, and applicable zoning, environmental, or other laws, ordinances, or regulations affecting the Property. The Developer is not aware of any pending or threatened claim of any such violation. Without limitation of the foregoing, the Developer expressly acknowledges and agrees that it has and shall at all times comply with each and every provision of the City’s subdivision, zoning, and other related municipal code regulations. E. There is no suit, action, arbitration, or legal, administrative, or other proceeding, or governmental investigation pending or threatened against or affecting the Developer or the Property. The Developer is not in default with respect to any order, writ, injunction, or decree of any federal, state, local or foreign court, department, agency, or instrumentality. F. None of the representations and warranties made by the Developer or made in any exhibit hereto or memorandum or writing furnished or to be furnished by the Developer or on its behalf contains or will contain any untrue statement of material fact or omits any material fact, the omission of which would be misleading. 1.03. Incorporation of Recitals and Exhibits. The Recitals set forth in the preamble to this Agreement and the Exhibits attached to this Agreement are incorporated into this Agreement as if fully set forth herein. ARTICLE TWO PUBLIC IMPROVEMENTS; PLATTING REQUIREMENTS 2.01. Public Improvements. A. The City intends to initiate a public improvement project pursuant to its authority under state and local laws in order to construct and install the Public Improvements. The Public Improvements will extend the system of City streets (Greenwood Drive) and utilities to provide adequate access, sewer, and water to the lots created within the Subdivision. To ensure that the City has valid and collectible assessments for such project, each of the individual owners and entities that collectively make up the Developer shall execute a separate Petition and Waiver Agreement in the general form attached hereto as Exhibit C, each of which shall meet the requirements of the City Attorney. The parties to this Agreement understand and acknowledge that the City will not move forward with the Public Improvements, nor shall it consider a resolution authorizing any condemnation related to the Public Improvements and the acquisition necessitated thereby, unless and until all individuals or entities that collectively make up the Developer have executed a Petition and Waiver Agreement that meets all City requirements. B. The Developer agrees to grant or dedicate via the plat for the Subdivision all right-of- way necessary for the Public Improvements within the Subdivision Property. The City agrees to initiate efforts via its authority to exercise eminent domain to acquire that portion of right-of-way that is not within the Subdivision Property but that is otherwise required for the Public Improvements, in the City’s sole discretion, to construct and install the Public Improvements so that the Subdivision has 4 628764v3MU210-262 adequate access and utilities. All of the City’s costs associated with said acquisition, including, but not necessarily limited to, administrative costs, appraisal costs, attorneys’ fees, filing fees, real estate costs, commissioners fees, and owners’ fees, shall be the responsibility of the Developer and shall be reimbursed to the City by the Developer in accordance with Section 2.05 of this Agreement. 2.02. Platting. The Developer shall plat the Subdivision Property in accordance with the Mounds View City Code, this Agreement, state statutes, and any City approvals. Prior to approval of the final plat by the City, the Developer shall amend the preliminary plat as required by any preliminary plat approval, the Mounds View City Code, this Agreement, City consultants, and state statutes. The City shall be under no obligation to consider a resolution authorizing any condemnation related to the Public Improvements and the acquisition necessitated thereby unless and until the Developer has submitted a completed application for preliminary plat approval and has further provided the City with any assurances as it may require to show that the Developer will remain in full compliance with Section 2.05 of this Agreement. 2.03. Permits. The Developer shall obtain any necessary permits from the City, the Minnesota Pollution Control Agency, the Minnesota Department of Natural Resources, the Minnesota Department of Health, the Minnesota Department of Transportation, Ramsey County, and any other agency that may have jurisdiction over the Subdivision Property before proceeding with any construction. 2.04. Property Monumentation. The Developer agrees to install all Subdivision monumentation (permanent) within six (6) months from the date of recording of the final plat, and shall submit to the City written certification by a licensed land surveyor that the required monuments have been installed throughout the plat. All monuments shall be marked with a steel or fiberglass post to allow for easy location following their installation. 2.05. Payment of City Costs. The Developer agrees to reimburse the City its actual costs regarding: (i) preparing and administering this Agreement and all other documents, permits, and applications related thereto; (ii) processing the plat and any other approvals relating to the Property and the development contemplated herein; and (iii) acquiring the right-of-way necessary for the Public Improvements as provided in Section 2.01(B). In addition to and without limitation of the foregoing, the costs to be reimbursed by the Developer to the City shall include, but not be limited to, attorneys’ fees, engineering fees, inspection fees, and the costs and fees of other technical and professional assistance (including but not limited to the cost of City staff time) incurred or expended by the City on activities arising out of this Agreement, and other undertakings related thereto. The Developer has submitted $5,000 to the City to be applied to payment of the costs described in this Section 2.05, provided that if such costs exceed this amount, the Developer shall, upon demand by the City, pay such additional costs to the City within 10 days of such demand, and provided further that the amount by which this deposit exceeds the City’s actual costs, if any, shall be returned to the Developer. In the event City does not recover its costs under the provisions of this Section 2.05, as an additional remedy, City may, at its option, assess equally the parcels that make up the Property in the manner provided by Minnesota Statutes, Chapter 429, and Developer hereby consents to the levy of such special assessments without notice or hearing and waives its rights to appeal such assessments pursuant to Minnesota Statutes, Section 429.081, provided the total amount collectively levied, 5 628764v3MU210-262 together with the funds deposited with the City under this paragraph, does not exceed the expenses actually incurred by the City. Further, the City may, at its option, as an additional remedy, recover expenses actually incurred by the City, in the manner provided by Minnesota Statutes, Section 415.01, 366.011 and 366.012, and the Developer hereby consents to the levy of such assessments without notice or hearing and waives its rights to appeal such assessments pursuant to such Minnesota Statutes, provided the amount collectively levied, together with the funds deposited with the City, does not exceed the expenses actually incurred by the City pursuant to this Agreement. This Section 2.05 shall survive termination of this Agreement and shall be binding on the Developer regardless of the enforceability of any other provision of this Agreement. 2.06. Additional Requirements. The Developer shall satisfy, complete and abide by all requirements set forth in any City approvals, including adequately addressing all items as may be directed by the City Attorney, City Engineer or others with review and approval authority of the City including any plat, or engineer opinions and the City Attorney’s plat opinion, and all adopted City ordinances and resolutions affecting the Property, all of which are incorporated herein by reference as if fully set forth in this Agreement. 2.07. Park Dedications/Fees/Dedications. Without limitation of any other obligation of the Developer contained in this Agreement or set forth in federal, state, or local law, the Developer agrees to comply with any dedication requirements, including park dedications or payments in lieu which may be required by the City’s subdivision regulations. Such requirements may be memorialized in the preliminary and final plat approval resolutions. The Developer further expressly acknowledges and agrees that all easements and other rights in the Subdivision Property necessary and related to the City’s control over the public dedications (all of which shall be described in the plat required by the City’s subdivision regulations), shall inure to the City upon the Developer’s compliance with this Agreement and approval and recording of a final plat as set forth in the City’s subdivision regulations. 2.08. City Attorney Review; Title Work. Prior to recording the final plat with Ramsey County, the Developer agrees to provide the City with a current title work for the Property identifying any other entity with a legal interest in the Property, including but not limited to any entity with a mortgage interest, easement interest, etc. Any plat approval is subject to the Developer’s compliance with this provision. The Developer shall provide an updated and certified Abstract of Title and/or Registered Property Abstract as required by Minn. Stat. § 505.03, or in the alternative, the Developer must provide an updated Commitment for a Title Insurance Policy for the Subdivision Property naming the City as the proposed insured and with the amount of coverage for this policy being equal to $100,000.00 per acre dedicated to the City (including but not limited to streets, rights-of-way, park dedication, and drainage and utility easements). The above-mentioned evidence of title shall be subject to the review and approval of the City Attorney to determine what entities must execute the final plat and other documents to be recorded against the Subdivision Property. In the event the Developer provides the City with a Commitment for a Title Insurance Policy, the Developer shall cause a Title Insurance Policy to be issued consistent with the Commitment for a Title Insurance Policy provided by the 6 628764v3MU210-262 Developer and the requirements of the City Attorney and with an effective date on which the final plat is recorded (the City will not issue any building permits or certificates of occupancy until it is provided with said Title Insurance Policy). Further, Developer shall provide the City with evidence, which sufficiency shall be determined by the City, that all documents required to be recorded pursuant to this Agreement and by the City Attorney are recorded and all conditions for release of the final plat have been met prior to the City processing or approving any building permits or other permits applicable to the development of the Subdivision Property. 2.09. Plat Modifications and Revisions. The parties to this Agreement acknowledge that various potential modifications and revision issues associated with the plat may need to occur. The Developer agrees to undertake, assist with and resolve such issues as directed by the City. The Developer and the City agree to cooperate with each other and their representatives regarding any reasonable requests made subsequent to the execution of this Agreement to revise or correct any errors in the plat and to provide any and all additional documentation deemed necessary by either party to effectuate such revisions or corrections to the plat. ARTICLE THREE ADDITIONAL PROVISIONS 3.01. Assignment. The Developer may not assign any of its obligations under this Agreement without the prior written consent of the City. 3.02. Amendment. Any amendment to this Agreement must be in writing and signed by all parties. 3.03. Attorneys’ Fees. The Developer agrees to pay the City’s costs and expenses, including attorneys’ fees, in the event a suit or action is brought by the City against the Developer to enforce the terms of this Agreement. 3.04. Agreement to Run with Land. This Agreement may be recorded among the land records of Ramsey County, Minnesota. The provisions of this Agreement shall run with the Property and be binding upon the Developer and all assigns or successors in interest. Notwithstanding the foregoing, no conveyance of the Property or any part thereof shall relieve the Developer of its liability for full performance of this Agreement unless the City expressly so releases the Developer in writing. It is the intent of the parties hereto that this Agreement be in a form which is recordable among the land records of Ramsey County, Minnesota and the Developer and the City agree to make any changes in this Agreement which may be necessary to effect the recording and filing of this Agreement against the title of the Property. 3.05. Representatives Not Individually Liable. No official, agent, or employee of the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the City on any obligation or term of this Agreement. 3.06. Notices and Demands. Any notice, demand, or other communication under this Agreement by either party to the other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally: 7 628764v3MU210-262 (a) as to the Developer: Harstad Hills, Inc. 2195 Silver Lake Road New Brighton, MN 55112 Attn: Martin Harstad (b) as to the City: City of Mounds View 2401 County Hwy 10 Mounds View, MN 55112 Attn: City Administrator with a copy to: Scott J. Riggs, City Attorney Kennedy & Graven, Chartered 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 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 as provided in this Section 3.06. The Developer has authorized Martin Harstad of Harstad Hills, Inc. to represent its interests and communicate with the City for all purposes related to the Subdivision, this Agreement, and any City applications related to the development of the Property as contemplated by this Agreement. The City shall have no obligation to send written notices related to this Agreement to the entities that make up the Developer, either individually or collectively, provided, however, that this Agreement may only be amended in a writing signed by all parties hereto and Mr. Harstad shall have no authority to execute such an amendment on behalf of the Developer. 3.07. Disclaimer of Relationships. The Developer acknowledges that nothing contained in this Agreement nor any act by the City or the Developer shall be deemed or construed by the Developer or by any third person to create any relationship of third-party beneficiary, principal and agent, limited or general partner, or joint venture between the City and the Developer. 3.08. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. 3.09. 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 on convenience or otherwise. 3.10. Indemnification. Notwithstanding anything to the contrary in this Agreement, the City, its officials, agents, and employees shall not be liable or responsible in any manner to the Developer, the Developer’s successors or assigns, the Developer’s contractors or subcontractors, material suppliers, laborers, or to any other person or persons for any claim, demand, damage, or cause of action of any kind or character arising out of or by reason of the execution of this Agreement or the performance of this Agreement. The Developer, and the Developer’s successors or assigns, agree to protect, defend 8 628764v3MU210-262 and save the City, and its officials, agents, and employees, harmless from all such claims, demands, damages, and causes of action and the costs, disbursements, and expenses of defending the same, including but not limited to, attorneys’ fees, consulting engineering services, and other technical, administrative, or professional assistance. Nothing in this Agreement shall constitute a waiver or limitation of any immunity or limitation on liability to which the City is entitled under Minnesota Statutes, Chapter 466 or otherwise. This Section 3.10 shall survive termination of this Agreement and shall be binding on the Developer regardless of the enforceability of any other provision of this Agreement. 3.11. Developer’s Default. In the event of default by the Developer as to any work or undertaking required by this Agreement, the City may, at its option, perform the work and the Developer shall promptly reimburse the City for any expense incurred by the City in doing so. This Agreement is a license for the City to act, and it shall not be necessary for the City to seek an order from any court for permission to enter the Subdivision Property for such purposes. If the City does any such work, the City may, in addition to its other remedies, levy special assessments against the lots within the subdivision to recover the costs thereof. For this purpose, the Developer, for itself and its successors and assigns, expressly waives any and all procedural and substantive objections to the special assessments, including, but not limited to, hearing requirements and any claim that the assessments exceed the benefit to the land so assessed. The Developer, for itself and its successors and assigns, also waives any appeal rights otherwise available pursuant to Minnesota Statutes Section 429.081, provided the amount levied does not exceed the expenses actually incurred by the City. Further, the City may, at its option, as an additional remedy, recover expenses actually incurred by the City, in the manner provided by Minnesota Statutes, Section 415.01, 366.011 and 366.012, and the Developer hereby consents to the levy of such assessments without notice or hearing and waives its rights to appeal such assessments pursuant to such Minnesota Statutes, provided the amount levied does not exceed the expenses actually incurred by the City pursuant to this Agreement. 3.12. Compliance with Existing Laws. The Developer warrants that all obligations performed pursuant to this Agreement shall be in compliance with existing Federal, State and City laws, ordinances, pertinent regulations, standards, and specifications of the City. 3.13. Building Permits. This Agreement does not include the approval of a building permit for any structures within the Subdivision. The Developer must submit and the City must approve building plans prior to an application for a building permit for a structure on any lot within the Subdivision. The Developer or the parties applying for any building permit shall be responsible for payment of the customary fees associated with said building permit. 3.14. Miscellaneous Provisions. A. The Developer represents to the City that the development of the Property, the Subdivision, and the plat will comply with all city, county, state, and federal laws and regulations including, but not limited to: subdivision ordinances, zoning ordinances and environmental regulations. If the City determines that the Subdivision, plat, or the development of the Property does not comply, the City may, at its option, refuse to allow construction or development work on the Property until the Developer does comply. Upon the City’s demand, the Developer shall cease 9 628764v3MU210-262 work until there is compliance. Upon the City's demand, the Developer shall correct any and all errors contained in the plat, including but not limited to legal descriptions, names of parties in interest, depictions, etc., solely at the cost of the Developer; further, the Developer shall take all necessary actions such that the plat will be in compliance with existing laws, ordinances, pertinent regulations, standards, and specifications of the City, solely at the cost of the Developer. B. Third parties shall have no recourse against the City under this Agreement. C. Breach of the terms of this Agreement by the Developer shall be grounds for denial of building permits, including for lots sold to third parties. D. Wherever possible, each provision of this Agreement and each related document shall be interpreted so that it is valid under applicable law. If any provision of this Agreement or any related document is to any extent found invalid by a court or other governmental entity of competent jurisdiction, that provision shall be ineffective only to the extent of such invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement or any other related document. E. If building permits are issued prior to the completion and acceptance of any public improvements, the Developer assumes all liability and costs resulting in delays in completion of public improvements and damage to public improvements caused by the City, the Developer, its contractors, subcontractors, material men, employees, agents, or third parties. F. 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. The action or inaction of the City shall not constitute a waiver or amendment to the provisions of this Agreement. To be binding, amendments or waivers shall be in writing and signed by the parties. The City’s failure to promptly take legal action to enforce this Agreement shall not be a waiver or release. G. Each right, power, or remedy herein conferred upon the City is cumulative and in addition to every other right, power, or remedy, express or implied, now or hereafter arising, available to the City, at law or in equity, or under any other agreement, and each and every right, power and remedy herein set forth or otherwise so exciting may be exercised from time to time as often and in such order as may be deemed expedient by the City and shall not be a waiver of the right to exercise at any time thereafter any other right, power, or remedy. H. This Agreement, together with the exhibits hereto, which are incorporated by reference, constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to this Agreement, superseding all prior or contemporaneous proposals, communications, and understandings, whether oral or written, pertaining to the subject matter of this Agreement. 10 628764v3MU210-262 I. No officer, agent, or employee of the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the City on any obligation or term of this Agreement. J. Data provided to the Developer or received from the Developer under this Agreement shall be administered in accordance with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13. [The remainder of this page to remain intentionally blank]. 11 628764v3MU210-262 IN WITNESS OF THE ABOVE, the parties have caused this Agreement to be executed on the date and year written above. CITY OF MOUNDS VIEW By: ____________________________________ Carol Mueller Mayor By: ____________________________________ Nyle Zikmund City Administrator STATE OF MINNESOTA ) ) SS. COUNTY OF RAMSEY ) The foregoing instrument was acknowledged before me this _____ day of ____________, 20___, by Carol Mueller and Nyle Zikmund, the Mayor and City Administrator, respectively, of the City of Mounds View, a Minnesota municipal corporation, on behalf of the City. ____________________________________ Notary Public 12 628764v3MU210-262 DEVELOPER (PID 063023140066) NUWAY DEVELOPMENT, INC. By: ___________________________________ Its: ___________________________________ STATE OF MINNESOTA ) ) SS. COUNTY OF _________ ) The foregoing instrument was acknowledged before me this ______ day of ______________, 20____, by __________________, the _________________ of NuWay Development, Inc., a Minnesota business corporation, on behalf of said corporation. __________________________________ Notary Public 13 628764v3MU210-262 DEVELOPER (PID 063023140073) By: ___________________________________ Daniel Behnken By: ___________________________________ Gwen Behnken STATE OF MINNESOTA ) ) SS. COUNTY OF _________ ) The foregoing instrument was acknowledged before me this ____ day of ______________, 20____, by Daniel Behnken and Gwen Behnken, a married couple. __________________________________ Notary Public 14 628764v3MU210-262 DEVELOPER (PID 063023140067) By: ___________________________________ Margaret M. Krig STATE OF MINNESOTA ) ) SS. COUNTY OF _________ ) The foregoing instrument was acknowledged before me this ____ day of ______________, 20____, by Margaret M. Krig, a single person. __________________________________ Notary Public 15 628764v3MU210-262 DEVELOPER (PID 063023140019) By: ___________________________________ Hans L. Melgaard By: ___________________________________ Ilona L. Melgaard STATE OF MINNESOTA ) ) SS. COUNTY OF _________ ) The foregoing instrument was acknowledged before me this ____ day of ______________, 20____, by Hans L. Melgaard and Ilona L. Melgaard, Trustees of the Hans Leland and Ilona L. Melgaard Trust, dated October 31, 2018. __________________________________ Notary Public 16 628764v3MU210-262 DEVELOPER (PID 063023140017) By: ___________________________________ Carlos Nazareth By: ___________________________________ Lina Nazareth STATE OF MINNESOTA ) ) SS. COUNTY OF _________ ) The foregoing instrument was acknowledged before me this ____ day of ______________, 20____, by Carlos Nazareth and Lina Nazareth, a married couple. __________________________________ Notary Public 17 628764v3MU210-262 DEVELOPER (PID 063023140015) By: ___________________________________ Hazel Jennings STATE OF MINNESOTA ) ) SS. COUNTY OF _________ ) The foregoing instrument was acknowledged before me this ____ day of ______________, 20____, by Hazel Jennings, a single person. __________________________________ Notary Public 18 628764v3MU210-262 DEVELOPER (PID 063023140016) By: ___________________________________ Michael J. Lauterbach By: ___________________________________ Patrick J. Lauterbach STATE OF MINNESOTA ) ) SS. COUNTY OF _________ ) The foregoing instrument was acknowledged before me this ____ day of ______________, 20____, by Michael J. Lauterbach, Patrick J. Lauterbach, and Steven B. Lauterbach, [as tenants in common]. __________________________________ Notary Public This document drafted by: KENNEDY & GRAVEN, CHARTERED 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337-9300 A-1 628764v3MU210-262 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY Parcel 1: Outlot A, Long Lake Woods, according to the recorded plat thereof, and situate in Ramsey County, Minnesota. PID 063023140066 (Torrens Property) Parcel 2: That part of the North 143 feet of the South 405 feet of the Northeast 1/4 which lies Westerly of the East 229.70 feet and lies Easterly of the West 2143 feet of said Northeast 1/4 all in Section 6, Township 30, Range 23, except Long Lake Road, according to the United States Government Survey thereof and situate in Ramsey County, Minnesota. PID 063023140073 (Abstract Property) Parcel 3: All that part of the East 313 feet of the South 405 feet of the West 2112 feet of the Northeast Quarter of Section 6, Township 30, Range 23, except the East 185 feet of the West 2112 feet of the South 250 feet of the Northeast Quarter of Said Section 6, according to the United States Government Survey thereof and situate in Ramsey County, Minnesota. PID 063023140067 (Abstract Property) Parcel 4: The South 1/2 of that part of the Northeast 1/4 of Section 6, Township 30, Range 23, described as: Beginning at a point 2112 feet East of the West line and 405 feet North of the South line of said Northeast 1/4; thence West parallel with the South line of said Northeast 1/4 528 feet; thence North parallel with the West line of said Northeast 1/4 202.5 feet; thence East parallel with the South line of said Northeast 1/4 528 feet; thence South parallel with the West line of said Northeast 1/4 202.5 feet to the point of beginning, except the West 300 feet thereof, according to the United States Government Survey thereof and situate in Ramsey County, Minnesota. PID 063023140019 (Abstract Property) A-2 628764v3MU210-262 Parcel 5: The North One-half (N 1/2) of that part of the Northeast Quarter (NE 1/4) of Section 6, Township 30, Range 23, Ramsey County, Minnesota, described as follows: Beginning at a point Two Thousand One Hundred Twelve feet (2,112') East of the West line, and Four Hundred Five feet (405') North of the South line of said Northeast Quarter (NE 1/4); thence West parallel with the South line of said Northeast Quarter (NE 1/4) a distance of Five Hundred Twenty-eight feet (528'); thence North parallel with the West line of said Northeast Quarter (NE 1/4) a distance of Two Hundred Two and five-tenths feet (202.5'); thence East parallel with the South line of said Northeast Quarter (NE 1/4) a distance of Five Hundred Twenty-eight feet (528'); thence South parallel with the West line of said Northeast Quarter (NE l/4) to the point of beginning, a distance of Two Hundred Two and five-tenths feet (202.5'). PID 063023140017 (Abstract Property) Parcel 6: South 1/2 that part of the NE 1/4 of Section 6, Township 30 North, Range 23 West of the Fourth Prin Meridian, Described as follows: Beginning at a point 2112 feet East of the West line and 810 North of the South line of said NE 1/4, thence West parallel with the South line of said NE 1/4 distance 528 feet, thence South parallel with the West line of said NE 1/4 distance 202.5 feet, thence East parallel with the South line of said NE 1/4 distance 528 feet, thence North parallel with the West line of said NE 1/4 to point of beginning distance 202.5 feet, according to the United States Government Survey thereof and situate in Ramsey County, Minnesota. Subject to an easement for road purposes over the West 25 feet thereof. Subject to a 5 foot strip easement along the rear line for public utility use. PID 063023140015 (Abstract Property) Parcel 7: Nl/2 of that part of the NEl/4 of Sec. 6, T.30, R.23, described as follows: Beginning at a point 2112 feet E. of the W. line and 810 feet N. of the S. line of said NEl/4, thence W. parallel with the S. line of said NEl/4 distant 528 feet, thence S. parallel with the W line of said NE 1/4, distant 202.5 feet, thence E. parallel with the S. line of said NEI14, 528 feet, thence E. parallel with line of said NEl/4 to point of beginning, distant 202.5 feet, containing 2.45 acres more or less, Ramsey County, Minn. Subject to easement for road purposes over the W. 25 feet thereof. Subject to a 5 foot strip easement along the rear line for public utility use such as setting of poles, stringing of wires, trimming or removing of trees, if necessary for line clearance & laying of underground conduits. Restrictions as Spring Lake Park Knolls except 75 feet to front lot line. PID 063023140016 (Abstract Property) B-1 628764v3MU210-262 EXHIBIT B DEPICTION OF THE SUBDIVISION C-1 628764v3MU210-262 EXHIBIT C FORM OF PETITION AND WAIVER AGREEMENT PETITION AND WAIVER AGREEMENT THIS AGREEMENT is made this ____ day of ______________, 2020, by and between the City of Mounds View, a Minnesota municipal corporation (the “City”), and _____________________ (the “Developer”). WITNESSETH: WHEREAS, the Developer is the fee owner of certain real property located in Mounds View and legally described on Exhibit A attached hereto (the “Property”); and WHEREAS, the Property is located generally north of Sherwood Road, east of Eastwood Road, south of Ardan Avenue, and west of Long Lake Road; and WHEREAS, the Developer is in the process of platting and developing the Property as part of a 12-lot, single-family residential subdivision (the “Subdivision”), pursuant to that certain Development Agreement between the Developer and the City, dated __________, 2020 (the “Development Agreement”); and WHEREAS, the Developer desires for the City to construct certain public improvements necessary to serve the Property, including a northbound extension of Greenwood Drive to provide access to the Property and the extension of public water and sewer services to adequately serve the Property (the “Project”); and WHEREAS, the City is willing to construct the Project without notices or hearings, as related to the Developer and the Property, provided the assurances and covenants hereinafter stated are made by the Developer to ensure that the City will have a valid and collectable special assessment as it relates to the Property to finance a portion of the cost of the Project; and WHEREAS, it is in the interest of the parties to provide the City sufficient assurances that the Developer will pay for a portion of the cost of the Project and, were it not for the assurances and covenants hereinafter provided, the City would not otherwise construct the Project without the required notices and hearings, as related to the Developer, although it is willing to do so at the behest, and for the benefit, of the Developer; and WHEREAS, the parties have entered into this Agreement pursuant to and in satisfaction of the terms of the Development Agreement. NOW, THEREFORE, ON THE BASIS OF THE COVENANTS AND OBLIGATIONS CONTAINED HEREIN, THE PARTIES HERETO AGREE AS FOLLOWS: C-2 628764v3MU210-262 1. The Developer represents and warrants it is the fee owner of the Property, that it has full legal power and authority to encumber the Property as herein provided, that in doing so it is not in violation of the terms or conditions of any instrument or agreement of any nature to which it is bound or which relates in any manner to the Property and that there are no other liens or encumbrances against the Property except those of record. 2. The Developer hereby petitions the City for construction of the Project. The Project shall consist generally of a northbound extension of Greenwood Drive, including a cul-de-sac, to provide access to the Property, and the extension of City water and sewer to provide the Property with said City utilities. 3. The Developer consents to the City levying a special assessment for the costs of the Project against the Property in accordance with Minn. Stat., Section 429.061. The principal amount of the special assessment shall not exceed $_____________. The estimated cost of $_____________ is based on preliminary plans for the Project, attached hereto as Exhibit B. The parties understand and agree that said plans might be modified and that the preliminary plans included on Exhibit B were created merely for the purpose of estimating the cost of construction. 4. The Developer waives notice of hearing and hearing pursuant to Minn. Stat. Section 429.031, for the Project and notice of hearing and hearing on the special assessment levied to finance the Project pursuant to Minn. Stat. Section 429.061 and specifically requests that the Project be constructed and the special assessment be levied against the Property without notice of hearing or hearing. 5. The Developer waives the right to appeal the levy of special assessment in accordance with this Agreement pursuant to Minn. Stat. Section 429.081 and further specifically agrees with respect to such special assessment against the Property that: a. All requirements of Minn. Stat., Chapter 429 and the Mounds View City Code with which the City does not comply are hereby waived by the Developer; and b. The increase in fair market value of the Property resulting from construction of the Project will be at least equal to the amount of the special assessment levied against the Property and that such increase in fair market value is a special benefit to the Property. 6. The special assessment levied against the Property shall be payable over such period as the City may determine, but not less than __ years, and shall bear interest at a rate determined by the City, but not more than 2 percent above the City’s cost of financing. The City’s cost of financing shall mean the average coupon rate if the City sells debt to finance the Project. If no debt is sold for the Project, the rate shall be set using the same formula based on special assessment bonds of Minnesota municipalities which have the same credit rating as that of the City and are issued and sold at approximately the same time as the adoption of the resolution levying the special assessment. The first installment of principal and interest C-3 628764v3MU210-262 shall be included in the first tax rolls completed after adoption of the resolution levying the special assessment. 7. The covenants, waivers and agreements contained in this Agreement shall bind the Developer and its successors and assigns and shall run with the Property. It is the intent of the parties hereto that this Agreement be in a form which is recordable among the land records of Ramsey County, Minnesota and the Developer and the City agree to make any changes in this Agreement which may be necessary to effect the recording and filing of this Agreement against the title of the Property. 8. Any notice required to be given under this Agreement shall be deemed given if delivered personally or sent by U.S. mail, postage prepaid, certified and return receipt requested: a) as to Developer: ____________________ ____________________ ____________________ (b) as to the City: City of Mounds View 2401 County Hwy 10 Mounds View, MN 55112 Attn: City Administrator with a copy to: Scott J. Riggs, City Attorney Kennedy & Graven, Chartered 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 or at such other address as either party may from time to time notify the other in writing in accordance with this paragraph. 9. This Agreement shall terminate upon the final payment of the special assessment levied against the Property for the Project. The City agrees to execute and deliver such documents, in recordable form, as are necessary to extinguish its rights hereunder upon receipt of such final payment. C-4 628764v3MU210-262 IN WITNESS WHEREOF, the parties have set their hands the day and year first written above. [DEVELOPER NAME] By: _________________________ Its: _________________________ STATE OF MINNESOTA ) ) ss. COUNTY OF ____________ ) The foregoing instrument was acknowledged before me this _____ day of ___________, 20___, by _____________________, the ________________________ of _____________________, a ___________________________. Notary Public C-5 628764v3MU210-262 CITY OF MOUNDS VIEW By: ____________________________________ Carol Mueller Mayor By: ____________________________________ Nyle Zikmund City Administrator STATE OF MINNESOTA ) ) SS. COUNTY OF RAMSEY ) The foregoing instrument was acknowledged before me this _____ day of ____________, 20___, by Carol Mueller and Nyle Zikmund, the Mayor and City Administrator, respectively, of the City of Mounds View, a Minnesota municipal corporation, on behalf of the City. ____________________________________ Notary Public This document drafted by: Kennedy & Graven, Chartered 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337-9300 C-A-1 628764v3MU210-262 EXHIBIT A TO PETITION AND WAIVER AGREEMENT Legal Description of the Property [to be inserted] C-B-1 628764v3MU210-262 EXHIBIT B TO PETITION AND WAIVER AGREEMENT Preliminary Plans [to be inserted] City of Mounds View 2401 Mounds View Boulevard Mounds View, MN 55112 Page 1 of 1 April 14, 2020 Marty Harstad Harstad Hills, LLC mharstad@comcast.net RE: Long Lake Woods, Second Addition Dear Marty, I hope this letter finds you well. The intent of this letter is to address questions you’ve raised with City Staff regarding the planned Long Lake Woods Second Addition. Storm Water The City will cover the costs of storm sewer to pre-development conditions, meaning, any improvements associated with the development will be borne by the developer (excludes Doll and Holl). Example; the City will cover the cost of replacing the open ditch with a storm sewer (pre-development capacity). We agree in concept. The details will be left up to the developer’s and city’s engineers. Doll Appraisal The City Council will hold a closed session on April 20th to discuss. Other As previously discussed, the developer will conduct all grading. The City will install all public improvements, and assess the 14 benefiting property owners (includes Doll and Holl) through the 429 process. Before the City conducts a Feasibility Study, a Pre-Development Agreement is needed, signed by the 12 property owners (the Developer). As previously discussed, please contact the twelve to clarify relationships drafted in the agreement. If you have questions, please email the group cc’d in this letter. Respectfully, Jon Sevald, AICP Community Development Director Cc: Nyle Zikmund, City Administrator, nyle.zikmund@moundsviewmn.org Brian Beeman, Assistant City Administrator, brian.beeman@moundsviewmn.org Don Peterson, Public Works Director , don.peterson@moundsviewmn.org Scott Riggs, City Attorney Riggs, sriggs@Kennedy-Graven.com Tyler McLeete, City Engineer, Tyler.McLeete@stantec.com City of Mounds View 2401 Mounds View Boulevard Mounds View, MN 55112 Page 1 of 1 April 23, 2020 Marty Harstad Harstad Hills, LLC mharstad@comcast.net RE: Long Lake Woods, Second Addition Dear Marty, The City Council met in closed session on April 21st to discuss ROW acquisition of portions of the Doll property. The details of this meeting, and correspondence with Doll are not public information until which time the Council takes action to acquire land for ROW. In general, the Council approved an offer to Doll ($20,000), with an option to obtain his own appraisal if to counter ours (he has received our appraisal). The offer letter was both mailed and hand delivered on April 21st. Additionally, during the Council’s April 21st meeting, the Council considered cost participation related to ROW acquisition costs, determining that the developer will pay all costs, and it will not be assessed back to all benefiting properties (e.g. Developer + Doll & Holl). The Council did consider arguments for and against, at length. The Council understands the uniqueness of this project, in that the “developer” is the participating 12 property owners, and that some of them intend to build in the new subdivision. The City’s next step is to obtain a Development Agreement, then Feasibility Report. If you have questions, please email the group cc’d in this letter. Respectfully, Jon Sevald, AICP Community Development Director Cc: Nyle Zikmund, City Administrator, nyle.zikmund@moundsviewmn.org Brian Beeman, Assistant City Administrator, brian.beeman@moundsviewmn.org Don Peterson, Public Works Director , don.peterson@moundsviewmn.org Scott Riggs, City Attorney Riggs, sriggs@Kennedy-Graven.com Tyler McLeete, City Engineer, Tyler.McLeete@stantec.com Item No: __03__ Meeting Date: __July 6, 2020 Type of Business: ____WS___ Administrator Review: ____ City of Mounds View Staff Report To: Honorable Mayor and City Council From: Nyle Zikmund, City Administrator, Don Peterson, PW Director Item Title/Subject: Storm Water Management/LGU Introduction: Storm Water is a major issue for the City and one that has challenged us on several occasions. The City has engaged in numerous discussions and efforts to improve operations between Rice Creek Watershed and the City. Additionally, the City submitted a list to Ramsey County Commissioners advocating for a change in Board appointments, which was well received and a change was made. Finally, several Anoka County cities undertook the same endeavor in Anoka County appointments and that process is still ongoing. Hugo and Circle Pines have taken an addition, and somewhat extraordinary step of becoming the Local Governing Unit (LGU). Don and I met with Stantec to get a better understanding of what that entails, pros and cons, and process by which to achieve. Discussion: A city, if it so chooses, can become the LGU and in doing so, assumes all responsibility and duties related to permitting and inspecting new and storm water infrastructure. Currently, we already maintain everything but the ditches and that does not change. By assuming permitting we are now working directly with all developers and would endeavor to do so with our mantra of extraordinary customer service. We, like others, have had developers et frustrated with the process, and time delays. By taking this on, we also become familiar with the infrastructure, have input into the design which becomes critical as we maintain it. Similarly, for inspections, we become more familiar and since we are obligated to maintain, will arguably be more diligent in assuring the project is constructed to its design. There is some, but not substantive work in transitioning which is all done by resolution. We adopt, by reference – the watersheds storm water management plan. We adopt a fee schedule (theirs) and produce permits (which we do all the time) and expand our contract or let a new contract for engineering services specific to review and inspections. Some inspections we can do ourselves. Staff believes that there will be minimal costs associated with the transition that will be more than offset by being able to work directly with our developers, direct inspections, and a cost neutral fee schedule. Stantec will be attending workshop to answer any questions council has. Recommendation: Staff recommends further exploration and becoming the LGU. Respectfully submitted, Nyle Zikmund City Administrator Memo v:\1938\active\193804166\permits\city take on rcwd permitting\dpeterson_dedgerton^memo_20200626_stormwaterpermitting.docx To: Nyle Zikmund, Don Peterson From: Dan Edgerton City of Mounds View Minneapolis MN Office File: 193800504 Date: June 26, 2020 Reference: City Assumption of Stormwater LGU Role The Rice Creek Watershed District (RCWD) regulates stormwater management, soil erosion and sediment control, floodplain alterations, and wetland alterations through its permitting process. In addition, the RCWD administers the Wetland Conservation Act (WCA) which is a State rule protecting and replacing wetlands that are impacted. Development activities must be consistent with a set a RCWD rules and WCA governing these activities. The specific RCWD rules are: • Rule C – Stormwater Management • Rule D – Erosion and Sediment Control • Rule E – Floodplain Management • Rule F – Wetland Alteration The RCWD permitting process typically has the following steps: 1. Pre-application meeting with RCWD – to review the project and determine permitting and submittal needs 2. Permit application – this entails a permit application form, permit fee (typically waived for public entities), narrative description of the project stormwater management, construction plans, and supporting computations 3. Completeness review – it is not unusual to receive a request for additional information prior to the formal review process beginning 4. Engineer’s Report with staff recommendations – this memo either recommends conditional approval or requests design revisions or additional information 5. Updated submittal – a revised submittal is prepared, based on comments received from the RCWD. Steps 4 and 5 typically take several iterations to get to conditional approval. 6. Final Engineer’s Report – with recommendation to the RCWD Board for conditional approval 7. Board approval – the RCWD designates it meeting on the 4th Wednesday of the month for review and approval of permit applications 8. Final approval – final approval is provided upon receipt of various documents, including a maintenance agreement and final record plans for the project (following project completion) Each step of the process takes time to complete. The RCWD lays out a timeline on its website that defines a minimum of 40 calendar days from permit submittal to Board approval This timeline entails no incompleteness review and one revision based on staff comments. The actual review process could be considerably longer, depending on the specific project and any issues found. June 26, 2020 Nyle Zikmund, Don Peterson Page 2 of 4 Reference: City Assumption of Stormwater LGU Role v:\1938\active\193804166\permits\city take on rcwd permitting\dpeterson_dedgerton^memo_20200626_stormwaterpermitting.docx The WCA-required reviews and decision include the following steps: Wetland Delineations, Exemption or No Loss Applications, and Wetland Replacement Plan Applications for projects that create wetland impacts. The WCA administration also includes noticing applications and decisions with the reviewing agencies. For WCA, the reviews and approvals have taken 60-180 days or more. The RCWD also inspects projects during and after construction and has an enforcement process for projects deemed inconsistent with permit conditions. Over the years, the City has had a number of concerns regarding the RCWD permitting and enforcement process. These generally are related to: • Regulatory focus – Cities need to balance numerous goals, including water quality and environmental protection, economic development, and public health and safety. The RCWD has a single primary goal of water resource protection and has a resulting narrow, regulatory focus. This has not lent itself to considering or balancing various project goals or working in partnership with the City to achieve common goals. • Lack of flexibility – Because of the regulatory focus, there is often a “by-the-book” approach and lack of flexibility in meeting the goals of the permit. • Project delays and costs – The issues above have created delays and additional costs for a number of projects in the City in recent years. • Lack of communication – The RCWD does not always communicate its actions within Mounds View to City staff. In particular, violations to City businesses have been issued without informing the City. Because of these concerns, City staff are considering taking on the regulatory role for stormwater and Wetland Conservation Act administration in Mounds View. The RCWD Watershed Management Plan states that a “city or township may opt to assume the responsibility of administering Rules C (Stormwater), D (Erosion and Sediment Control), E (Floodplains), and F (Wetlands) and the WCA within its municipality.” To date, two cities (Hugo and Circle Pines) have taken on this responsibility. There are a number of steps required as part of the process of assuming stormwater and WCA regulatory responsibility: • Amend the City Surface Water Management Plan (SWMP) to reflect the City’s plan to assume permitting responsibilities – state that the City adopts RCWD Rules C, D, E, and F by reference. List goals and policies that are consistent with these rules. • Execute a memorandum of understanding (MOU) with the RCWD that the City will take on permitting responsibilities • Pass ordinances adopting Rules C, D, E, and F • Adopt a resolution taking on WCA responsibility • Create a protocol guide for issuing permits for submittal to the RCWD. It should lay out various procedures including permit application review and closeout process, hydraulics/hydrology data submittal to the RCWD, and the auditing process June 26, 2020 Nyle Zikmund, Don Peterson Page 3 of 4 Reference: City Assumption of Stormwater LGU Role v:\1938\active\193804166\permits\city take on rcwd permitting\dpeterson_dedgerton^memo_20200626_stormwaterpermitting.docx • Create a permit application form (including a fee schedule, which would need to be developed), a permit form, and a permit review checklist The City would then proceed with stormwater and wetland permitting. As part of the auditing process, the RCWD would jointly review the first 1-2 permits to ensure the City understands the rules and process. As noted above, a fee schedule would need to be developed. One option would be to adopt the current RCWD fee schedule (tabulated below). It appears that this would generally cover costs if the City were to take on the permitting responsibilities for Rules C, D, E, and F. RCWD Permitting Fees Rule C (Stormwater Management Plans): Single lot, single family residential projects: Home, Accessory Structure, Driveway, etc. $150 Residential, Commercial, Industrial, Institutional Development: < 1 acre of new or reconstructed impervious surface $1000 1 – 2.5 acres of new or reconstructed impervious surface $2,000 2.5 - 5 acres of new or reconstructed impervious surface $3,500 > 5 acres of new or reconstructed impervious surface $5,000 + $1,000/ac, max $10,000 Rule D (Erosion Control Plans): < 2.5 acres of land disturbance $100 2.5 – 10 acres of land disturbance $250 > 10 acres of land disturbance $500 Rule E (Floodplain Alteration): No mitigation required $0 Mitigation required $100 Rule F (Wetland Alteration): Exemption $250 < 1 acre of mitigation required $875 1 – 5 acres of mitigation required $1,750 5 – 10 acres of mitigation required $3,500 > 10 acres of mitigation required $5,250 Banking Plan $1,750 If the City were to take on WCA administration, there are additional services such as wetland delineation review, wetland replacement plan approvals, and administration that are not covered by the fee schedule above. Most cities that handle WCA administration do this as a pass-through cost to the applicant. This is accomplished by a variety of methods that include: application fees, escrows provided by the applicant that are utilized for review, direct billing to the applicant (typically for subdivisions with an application), or a combination of the above. June 26, 2020 Nyle Zikmund, Don Peterson Page 4 of 4 Reference: City Assumption of Stormwater LGU Role v:\1938\active\193804166\permits\city take on rcwd permitting\dpeterson_dedgerton^memo_20200626_stormwaterpermitting.docx The above information provides an overview of stormwater permitting in Mounds View for the City’s consideration. There would be a number of details to be worked out to begin implementation of this process. Please let me know if you have questions or need anything further. I would be available to discuss this issue at a City Council workshop, if so desired. Stantec Consulting Services Inc. Dan Edgerton Senior Associate Phone: 612 712 2037 Dan.Edgerton@stantec.com Attachment: c. Tyler McLeete, John Smyth The Mounds View Vision A Thriving Desirable Community Item No: 4 Meeting Date: July 6, 2020 Type of Business: Council Business Administrator Review: ____ City of Mounds View Staff Report To: Honorable Mayor and City Council From: Don Peterson, Public Works Director Item Title/Subject: Splash Pad Re-Opening Due to COVID-19 Background: Governor Walz’s executive order in response to COVID 19, closed all pools and water parks. Splash Down is licensed for operation through the Ramsey County Health Department. Ramsey County has determined that all Splash Pad/Spray Decks falls under the same criteria as pools for operations and safety guidelines. Effective June 10, pools were allowed to re-open in Minnesota following CDC and the Ramsey County Health Department Guidelines. The City of Mounds View received the conditions from Ramsey County, Staff reviewed the conditions and made the decision not to open and bring the topic to Council for f urther consideration and conversation in order to re-open the splash pad due the financial impact that following the guidelines would have on the City’s 2020 operating budget. Discussion: In reviewing the requirements Staff has highlighted a few conditions that would potentially have the biggest impact on the general operating budget, these are as follows: Pool Monitoring: • The primary reasons for monitoring the pool are to prevent the following: o A number of users over the adjusted capacity (50% or less of normal capacity). o Pool users in large groups not social distancing. o The responding authorized person must have the ability to close the pool in case of user refusal to comply with capacity or distancing rules. • Commercial setting pools (gyms, hotels, community centers, etc.) should contact their area inspector to discuss approved monitoring options. Staff conferenced with Ramsey County to clarify what conditions the City would need to follow in order for the splash pad to re -open. The following is an overview of this meeting; • The City will need to monitor the splash pad and adhere to the 50% or less of normal capacity – (the normal capacity is 94), 50% capacity is 47 total people in the splash pad area including the picnic shelter and benches. This will require fencing of the area in order to control the total number by counting guests coming in and leaving. • The individuals monitoring would need to ensure social distancing of all guests. • W earing of face coverings if not in the water. • W iping down benches and tables after use, as well as cleaning of the rest rooms on a periodic basis during the day. • If the numbers increase beyond the 50% capacity or the individual is not able to keep guests adhering to the social distancing guidelines and/or wearing of face coverings, the monitor will need to have the ability to shut down the splash pad and close this section of the park. After reviewing the CDC guidelines and conference with Ramsey County Public Health, Staff met with the City Administrator to advise of what would need to be done in order to re-open the splash pad. Staff determined that in order to open, a minimum of 5 attendants would need to hired to work during the operating hours of, 10am – 7:30pm, M-Sun through Labor Day. Staff determined that these individuals will also be required to handle the general public and enforce/ the following situations: • Social distancing • W earing of face covering if not in the water • Closing of the splash pad if individuals do not follow the guidelines • Resolve conflict with individuals who may become irate and unhappy with the closing or the current operation guidelines Preliminary cost estimates: • Fencing of the area in order to limit the number or individuals in the Splash Down area, the fence will include an entrance and exit - $6,000 • Staffing: 1 employee at $23.00 hr. at 31.5 hours week for 7 weeks - $5,074.50 5 employees would be a total salary cost of $25,372.50; (this includes FICA and WC) Other cost that would be incurred: • Additional cleaning supplies • Face coverings and face shield for employees • Cell phone to be used by City staff should the need arise • Face coverings provided for public if they do not have a mask Recommendation: Staff is requesting input from the Council regarding the re-opening of the splash pad. It should be noted that Staff, due to the availability of a fence contractor and the implementation of installing a fence, timeframe for hiring and training of personnel, and the availability of cleaning and mask supplies, is not recommending the opening of Splash Down for the 2020 season. Respectfully submitted, Don Peterson – Public Works Director Attachments: Ramsey County Guidelines for Swimming Pools MN Stay Safe Guidelines for Reopening Pools CDC Considerations for Public Pools Flyer from CDC – required to be posted Item No: __05__ Meeting Date: __July 6, 2020 Type of Business: ____WS___ Administrator Review: ____ City of Mounds View Staff Report To: Honorable Mayor and City Council From: Nyle Zikmund, City Administrator, Don Peterson, PW Director Item Title/Subject: Hybrid Meetings Introduction: COVID 19 has caused Council and Commission to meet virtually. Currently we are using Zoom. CTV can assist in providing a “Hybrid” meeting in which some individuals (council, commissions, staff) can assemble in chambers while others (staff, participants, guests, residents) would join via Zoom. Discussion: Additional equipment is needed along with installation at a cost of under $5,000 which is reimbursable under the Cares Act. There would be an additional fee for a CTV staff person per meeting to operate the equipment if there was a desire to have a “professional quality” meeting as no camera view will capture the entire chamber and thus, camera manipulation will be desired to minimize side and back of head shots. COVID 19 protocols recommend limiting gathering inside spaces and if needed, masks should be worn even with proper spacing. Chamber can be set up to have five council – one per table in chamber area and up to four staff on dais. CDC Guides as of June 24, 2020 Guiding Principles • A gathering refers to a planned or spontaneous event, indoors or outdoors, with a small number of people participating or a large number of people in attendance such as a community event or gathering, concert, festival, conference, parade, wedding, or sporting event. • The more people an individual interacts with at a gathering and the longer that interaction lasts, the higher the potential risk of becoming infected with COVID-19 and COVID-19 spreading. • The higher the level of community transmission in the area that the gathering is being held, the higher the risk of COVID-19 spreading during a gathering. • The size of an event or gathering should be determined based on state, local, territorial or tribal safety laws and regulations. The risk of COVID-19 spreading at events and gatherings increases as follows: Lowest risk: Virtual-only activities, events, and gatherings. More risk: Smaller outdoor and in-person gatherings in which individuals from different households remain spaced at least 6 feet apart, wear cloth face coverings, do not share objects, and come from the same local area (e.g., community, town, city, or county). Higher risk: Medium-sized in-person gatherings that are adapted to allow individuals to remain spaced at least 6 feet apart and with attendees coming from outside the local area. Highest risk: Large in -person gatherings where it is difficult for individuals to remain spaced at least 6 feet apart and attendees travel from outside the local area. Recommendation: Staff recommends making the investment as it is reimbursable. Decision to have Hybrid meeting should be left to council and each commission as comfort level may vary by group. Respectfully submitted, Nyle Zikmund City Administrator Coronavirus Relief Fund Guidance for State, Territorial, Local, and Tribal Governments April 22, 2020 The purpose of this document is to provide guidance to recipients of the funding available under section 601(a) of the Social Security Act, as added by section 5001 of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). The CARES Act established the Coronavirus Relief Fund (the “Fund”) and appropriated $150 billion to the Fund. Under the CARES Act, the Fund is to be used to make payments for specified uses to States and certain local governments; the District of Columbia and U.S. Territories (consisting of the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands); and Tribal governments. The CARES Act provides that payments from the Fund may only be used to cover costs that— 1. are necessary expenditures incurred due to the public health emergency with respect to the Coronavirus Disease 2019 (COVID–19); 2. were not accounted for in the budget most recently approved as of March 27, 2020 (the date of enactment of the CARES Act) for the State or government; and 3. were incurred during the period that begins on March 1, 2020, and ends on December 30, 2020.1 The guidance that follows sets forth the Department of the Treasury’s interpretation of these limitations on the permissible use of Fund payments. Necessary expenditures incurred due to the public health emergency The requirement that expenditures be incurred “due to” the public health emergency means that expenditures must be used for actions taken to respond to the public health emergency. These may include expenditures incurred to allow the State, territorial, local, or Tribal government to respond directly to the emergency, such as by addressing medical or public health needs, as well as expenditures incurred to respond to second-order effects of the emergency, such as by providing economic support to those suffering from employment or business interruptions due to COVID-19-related business closures. Funds may not be used to fill shortfalls in government revenue to cover expenditures that would not otherwise qualify under the statute. Although a broad range of uses is allowed, revenue replacement is not a permissible use of Fund payments. The statute also specifies that expenditures using Fund payments must be “necessary.” The Department of the Treasury understands this term broadly to mean that the expenditure is reasonably necessary for its intended use in the reasonable judgment of the government officials responsible for spending Fund payments. Costs not accounted for in the budget most recently approved as of March 27, 2020 The CARES Act also requires that payments be used only to cover costs that were not accounted for in the budget most recently approved as of March 27, 2020. A cost meets this requirement if either (a) the cost cannot lawfully be funded using a line item, allotment, or allocation within that budget or (b) the cost 1 See Section 601(d) of the Social Security Act, as added by section 5001 of the CARES Act. 1 is for a substantially different use from any expected use of funds in such a line item, allotment, or allocation. The “most recently approved” budget refers to the enacted budget for the relevant fiscal period for the particular government, without taking into account subsequent supplemental appropriations enacted or other budgetary adjustments made by that government in response to the COVID-19 public health emergency. A cost is not considered to have been accounted for in a budget merely because it could be met using a budgetary stabilization fund, rainy day fund, or similar reserve account. Costs incurred during the period that begins on March 1, 2020, and ends on December 30, 2020 A cost is “incurred” when the responsible unit of government has expended funds to cover the cost. Nonexclusive examples of eligible expenditures Eligible expenditures include, but are not limited to, payment for: 1. Medical expenses such as: • COVID-19-related expenses of public hospitals, clinics, and similar facilities. • Expenses of establishing temporary public medical facilities and other measures to increase COVID-19 treatment capacity, including related construction costs. • Costs of providing COVID-19 testing, including serological testing. • Emergency medical response expenses, including emergency medical transportation, related to COVID-19. • Expenses for establishing and operating public telemedicine capabilities for COVID-19- related treatment. 2. Public health expenses such as: • Expenses for communication and enforcement by State, territorial, local, and Tribal governments of public health orders related to COVID-19. • Expenses for acquisition and distribution of medical and protective supplies, including sanitizing products and personal protective equipment, for medical personnel, police officers, social workers, child protection services, and child welfare officers, direct service providers for older adults and individuals with disabilities in community settings, and other public health or safety workers in connection with the COVID-19 public health emergency. • Expenses for disinfection of public areas and other facilities, e.g., nursing homes, in response to the COVID-19 public health emergency. • Expenses for technical assistance to local authorities or other entities on mitigation of COVID-19-related threats to public health and safety. • Expenses for public safety measures undertaken in response to COVID-19. • Expenses for quarantining individuals. 3. Payroll expenses for public safety, public health, health care, human services, and similar employees whose services are substantially dedicated to mitigating or responding to the COVID- 19 public health emergency. 2 4. Expenses of actions to facilitate compliance with COVID-19-related public health measures, such as: • Expenses for food delivery to residents, including, for example, senior citizens and other vulnerable populations, to enable compliance with COVID-19 public health precautions. • Expenses to facilitate distance learning, including technological improvements, in connection with school closings to enable compliance with COVID-19 precautions. • Expenses to improve telework capabilities for public employees to enable compliance with COVID-19 public health precautions. • Expenses of providing paid sick and paid family and medical leave to public employees to enable compliance with COVID-19 public health precautions. • COVID-19-related expenses of maintaining state prisons and county jails, including as relates to sanitation and improvement of social distancing measures, to enable compliance with COVID-19 public health precautions. • Expenses for care for homeless populations provided to mitigate COVID-19 effects and enable compliance with COVID-19 public health precautions. 5. Expenses associated with the provision of economic support in connection with the COVID-19 public health emergency, such as: • Expenditures related to the provision of grants to small businesses to reimburse the costs of business interruption caused by required closures. • Expenditures related to a State, territorial, local, or Tribal government payroll support program. • Unemployment insurance costs related to the COVID-19 public health emergency if such costs will not be reimbursed by the federal government pursuant to the CARES Act or otherwise. 6. Any other COVID-19-related expenses reasonably necessary to the function of government that satisfy the Fund’s eligibility criteria. Nonexclusive examples of ineligible expenditures 2 The following is a list of examples of costs that would not be eligible expenditures of payments from the Fund. 1. Expenses for the State share of Medicaid.3 2. Damages covered by insurance. 3. Payroll or benefits expenses for employees whose work duties are not substantially dedicated to mitigating or responding to the COVID-19 public health emergency. 2 In addition, pursuant to section 5001(b) of the CARES Act, payments from the Fund may not be expended for an elective abortion or on research in which a human embryo is destroyed, discarded, or knowingly subjected to risk of injury or death. The prohibition on payment for abortions does not apply to an abortion if the pregnancy is the result of an act of rape or incest; or in the case where a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed. Furthermore, no government which receives payments from the Fund may discriminate against a health care entity on the basis that the entity does not provide, pay for, provide coverage of, or refer for abortions. 3 See 42 C.F.R. § 433.51 and 45 C.F.R. § 75.306. 3 4. Expenses that have been or will be reimbursed under any federal program, such as the reimbursement by the federal government pursuant to the CARES Act of contributions by States to State unemployment funds. 5. Reimbursement to donors for donated items or services. 6. Workforce bonuses other than hazard pay or overtime. 7. Severance pay. 8. Legal settlements. 4 1 Coronavirus Relief Fund Frequently Asked Questions Updated as of June 24, 2020 The following answers to frequently asked questions supplement Treasury’s Coronavirus Relief Fund (“Fund”) Guidance for State, Territorial, Local, and Tribal Governments, dated April 22, 2020, (“Guidance”).1 Amounts paid from the Fund are subject to the restrictions outlined in the Guidance and set forth in section 601(d) of the Social Security Act, as added by section 5001 of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). Eligible Expenditures Are governments required to submit proposed expenditures to Treasury for approval? No. Governments are responsible for making determinations as to what expenditures are necessary due to the public health emergency with respect to COVID-19 and do not need to submit any proposed expenditures to Treasury. The Guidance says that funding can be used to meet payroll expenses for public safety, public health, health care, human services, and similar employees whose services are substantially dedicated to mitigating or responding to the COVID-19 public health emergency. How does a government determine whether payroll expenses for a given employee satisfy the “substantially dedicated” condition? The Fund is designed to provide ready funding to address unforeseen financial needs and risks created by the COVID-19 public health emergency. For this reason, and as a matter of administrative convenience in light of the emergency nature of this program, a State, territorial, local, or Tribal government may presume that payroll costs for public health and public safety employees are payments for services substantially dedicated to mitigating or responding to the COVID-19 public health emergency, unless the chief executive (or equivalent) of the relevant government determines that specific circumstances indicate otherwise. The Guidance says that a cost was not accounted for in the most recently approved budget if the cost is for a substantially different use from any expected use of funds in such a line item, allotment, or allocation. What would qualify as a “substantially different use” for purposes of the Fund eligibility? Costs incurred for a “substantially different use” include, but are not necessarily limited to, costs of personnel and services that were budgeted for in the most recently approved budget but which, due entirely to the COVID-19 public health emergency, have been diverted to substantially different functions. This would include, for example, the costs of redeploying corrections facility staff to enable compliance with COVID-19 public health precautions through work such as enhanced sanitation or enforcing social distancing measures; the costs of redeploying police to support management and enforcement of stay-at-home orders; or the costs of diverting educational support staff or faculty to develop online learning capabilities, such as through providing information technology support that is not part of the staff or faculty’s ordinary responsibilities. Note that a public function does not become a “substantially different use” merely because it is provided from a different location or through a different manner. For example, although developing online instruction capabilities may be a substantially different use of funds, online instruction itself is not a substantially different use of public funds than classroom instruction. 1 The Guidance is available at https://home.treasury.gov/system/files/136/Coronavirus -Relief-Fund-Guidance-for- State-Territorial-Local-and-Tribal-Governments.pdf. 2 May a State receiving a payment transfer funds to a local government? Yes, provided that the transfer qualifies as a necessary expenditure incurred due to the public health emergency and meets the other criteria of section 601(d) of the Social Security Act. Such funds would be subject to recoupment by the Treasury Department if they have not been used in a manner consistent with section 601(d) of the Social Security Act. May a unit of local government receiving a Fund payment transfer funds to another unit of government? Yes. For example, a county may transfer funds to a city, town, or school district within the county and a county or city may transfer funds to its State, provided that the transfer qualifies as a necessary expenditure incurred due to the public health emergency and meets the other criteria of section 601(d) of the Social Security Act outlined in the Guidance. For example, a transfer from a county to a constituent city would not be permissible if the funds were intended to be used simply to fill shortfalls in government revenue to cover expenditures that would not otherwise qualify as an eligible expenditure. Is a Fund payment recipient required to transfer funds to a smaller, constituent unit of government within its borders? No. For example, a county recipient is not required to transfer funds to smaller cities within the county’s borders. Are recipients required to use other federal funds or seek reimbursement under other federal programs before using Fund payments to satisfy eligible expenses? No. Recipients may use Fund payments for any expenses eligible under section 601(d) of the Social Security Act outlined in the Guidance. Fund payments are not required to be used as the source of funding of last resort. However, as noted below, recipients may not use payments from the Fund to cover expenditures for which they will receive reimbursement. Are there prohibitions on combining a transaction supported with Fund payments with other CARES Act funding or COVID-19 relief Federal funding? Recipients will need to consider the applicable restrictions and limitations of such other sources of funding. In addition, expenses that have been or will be reimbursed under any federal program, such as the reimbursement by the federal government pursuant to the CARES Act of contributions by States to State unemployment funds, are not eligible uses of Fund payments. Are States permitted to use Fund payments to support state unemployment insurance funds generally? To the extent that the costs incurred by a state unemployment insurance fund are incurred due to the COVID-19 public health emergency, a State may use Fund payments to make payments to its respective state unemployment insurance fund, separate and apart from such State’s obligation to the unemployment insurance fund as an employer. This will permit States to use Fund payments to prevent expenses related to the public health emergency from causing their state unemployment insurance funds to become insolvent. 3 Are recipients permitted to use Fund payments to pay for unemployment insurance costs incurred by the recipient as an employer? Yes, Fund payments may be used for unemployment insurance costs incurred by the recipient as an employer (for example, as a reimbursing employer) related to the COVID-19 public health emergency if such costs will not be reimbursed by the federal government pursuant to the CARES Act or otherwise. The Guidance states that the Fund may support a “broad range of uses” including payroll expenses for several classes of employees whose services are “substantially dedicated to mitigating or responding to the COVID-19 public health emergency.” What are some examples of types of covered employees? The Guidance provides examples of broad classes of employees whose payroll expenses would be eligible expenses under the Fund. These classes of employees include public safety, public health, health care, human services, and similar employees whose services are substantially dedicated to mitigating or responding to the COVID-19 public health emergency. Payroll and benefit costs associated with public employees who could have been furloughed or otherwise laid off but who were instead repurposed to perform previously unbudgeted functions substantially dedicated to mitigating or responding to the COVID-19 public health emergency are also covered. Other eligible expenditures include payroll and benefit costs of educational support staff or faculty responsible for developing online learning capabilities necessary to continue educational instruction in response to COVID-19-related school closures. Please see the Guidance for a discussion of what is meant by an expense that was not accounted for in the budget most recently approved as of March 27, 2020. In some cases, first responders and critical health care workers that contract COVID-19 are eligible for workers’ compensation coverage. Is the cost of this expanded workers compensation coverage eligible? Increased workers compensation cost to the government due to the COVID-19 public health emergency incurred during the period beginning March 1, 2020, and ending December 30, 2020, is an eligible expense. If a recipient would have decommissioned equipment or not renewed a lease on particular office space or equipment but decides to continue to use the equipment or to renew the lease in order to respond to the public health emergency, are the costs associated with continuing to operate the equipment or the ongoing lease payments eligible expenses? Yes. To the extent the expenses were previously unbudgeted and are otherwise consistent with section 601(d) of the Social Security Act outlined in the Guidance, such expenses would be eligible. May recipients provide stipends to employees for eligible expenses (for example, a stipend to employees to improve telework capabilities) rather than require employees to incur the eligible cost and submit for reimbursement? Expenditures paid for with payments from the Fund must be limited to those that are necessary due to the public health emergency. As such, unless the government were to determine that providing assistance in the form of a stipend is an administrative necessity, the government should provide such assistance on a reimbursement basis to ensure as much as possible that funds are used to cover only eligible expenses. 4 May Fund payments be used for COVID-19 public health emergency recovery planning? Yes. Expenses associated with conducting a recovery planning project or operating a recovery coordination office would be eligible, if the expenses otherwise meet the criteria set forth in section 601(d) of the Social Security Act outlined in the Guidance. Are expenses associated with contact tracing eligible? Yes, expenses associated with contract tracing are eligible. To what extent may a government use Fund payments to support the operations of private hospitals? Governments may use Fund payments to support public or private hospitals to the extent that the costs are necessary expenditures incurred due to the COVID-19 public health emergency, but the form such assistance would take may differ. In particular, financial assistance to private hospitals could take the form of a grant or a short-term loan. May payments from the Fund be used to assist individuals with enrolling in a government benefit program for those who have been laid off due to COVID-19 and thereby lost health insurance? Yes. To the extent that the relevant government official determines that these expenses are necessary and they meet the other requirements set forth in section 601(d) of the Social Security Act outlined in the Guidance, these expenses are eligible. May recipients use Fund payments to facilitate livestock depopulation incurred by producers due to supply chain disruptions? Yes, to the extent these efforts are deemed necessary for public health reasons or as a form of economic support as a result of the COVID-19 health emergency. Would providing a consumer grant program to prevent eviction and assist in preventing homelessness be considered an eligible expense? Yes, assuming that the recipient considers the grants to be a necessary expense incurred due to the COVID-19 public health emergency and the grants meet the other requirements for the use of Fund payments under section 601(d) of the Social Security Act outlined in the Guidance. As a general matter, providing assistance to recipients to enable them to meet property tax requirements would not be an eligible use of funds, but exceptions may be made in the case of assistance designed to prevent foreclosures. May recipients create a “payroll support program” for public employees? Use of payments from the Fund to cover payroll or benefits expenses of public employees are limited to those employees whose work duties are substantially dedicated to mitigating or responding to the COVID-19 public health emergency. May recipients use Fund payments to cover employment and training programs for employees that have been furloughed due to the public health emergency? Yes, this would be an eligible expense if the government determined that the costs of such employment and training programs would be necessary due to the public health emergency. 5 May recipients use Fund payments to provide emergency financial assistance to individuals and families directly impacted by a loss of income due to the COVID-19 public health emergency? Yes, if a government determines such assistance to be a necessary expenditure. Such assistance could include, for example, a program to assist individuals with payment of overdue rent or mortgage payments to avoid eviction or foreclosure or unforeseen financial costs for funerals and other emergency individual needs. Such assistance should be structured in a manner to ensure as much as possible, within the realm of what is administratively feasible, that such assistance is necessary. The Guidance provides that eligible expenditures may include expenditures related to the provision of grants to small businesses to reimburse the costs of business interruption caused by required closures. What is meant by a “small business,” and is the Guidance intended to refer only to expenditures to cover administrative expenses of such a grant program? Governments have discretion to determine what payments are necessary. A program that is aimed at assisting small businesses with the costs of business interruption caused by required closures should be tailored to assist those businesses in need of such assistance. The amount of a grant to a small business to reimburse the costs of business interruption caused by required closures would also be an eligible expenditure under section 601(d) of the Social Security Act, as outlined in the Guidance. The Guidance provides that expenses associated with the provision of economic support in connection with the public health emergency, such as expenditures related to the provision of grants to small businesses to reimburse the costs of business interruption caused by required closures, would constitute eligible expenditures of Fund payments. Would such expenditures be eligible in the absence of a stay-at-home order? Fund payments may be used for economic support in the absence of a stay-at-home order if such expenditures are determined by the government to be necessary. This may include, for example, a grant program to benefit small businesses that close voluntarily to promote social distancing measures or that are affected by decreased customer demand as a result of the COVID-19 public health emergency. May Fund payments be used to assist impacted property owners with the payment of their property taxes? Fund payments may not be used for government revenue replacement, including the provision of assistance to meet tax obligations. May Fund payments be used to replace foregone utility fees? If not, can Fund payments be used as a direct subsidy payment to all utility account holders? Fund payments may not be used for government revenue replacement, including the replacement of unpaid utility fees. Fund payments may be used for subsidy payments to electricity account holders to the extent that the subsidy payments are deemed by the recipient to be necessary expenditures incurred due to the COVID-19 public health emergency and meet the other criteria of section 601(d) of the Social Security Act outlined in the Guidance. For example, if determined to be a necessary expenditure, a government could provide grants to individuals facing economic hardship to allow them to pay their utility fees and thereby continue to receive essential services. 6 Could Fund payments be used for capital improvement projects that broadly provide potential economic development in a community? In general, no. If capital improvement projects are not necessary expenditures incurred due to the COVID-19 public health emergency, then Fund payments may not be used for such projects. However, Fund payments may be used for the expenses of, for example, establishing temporary public medical facilities and other measures to increase COVID-19 treatment capacity or improve mitigation measures, including related construction costs. The Guidance includes workforce bonuses as an example of ineligible expenses but provides that hazard pay would be eligible if otherwise determined to be a necessary expense. Is there a specific definition of “hazard pay”? Hazard pay means additional pay for performing hazardous duty or work involving physical hardship, in each case that is related to COVID-19. The Guidance provides that ineligible expenditures include “[p]ayroll or benefits expenses for employees whose work duties are not substantially dedicated to mitigating or responding to the COVID-19 public health emergency.” Is this intended to relate only to public employees? Yes. This particular nonexclusive example of an ineligible expenditure relates to public employees. A recipient would not be permitted to pay for payroll or benefit expenses of private employees and any financial assistance (such as grants or short-term loans) to private employers are not subject to the restriction that the private employers’ employees must be substantially dedicated to mitigating or responding to the COVID-19 public health emergency. May counties pre-pay with CARES Act funds for expenses such as a one or two-year facility lease, such as to house staff hired in response to COVID-19? A government should not make prepayments on contracts using payments from the Fund to the extent that doing so would not be consistent with its ordinary course policies and procedures. Must a stay-at-home order or other public health mandate be in effect in order for a government to provide assistance to small businesses using payments from the Fund? No. The Guidance provides, as an example of an eligible use of payments from the Fund, expenditures related to the provision of grants to small businesses to reimburse the costs of business interruption caused by required closures. Such assistance may be provided using amounts received from the Fund in the absence of a requirement to close businesses if the relevant government determines that such expenditures are necessary in response to the public health emergency. 7 Should States receiving a payment transfer funds to local governments that did not receive payments directly from Treasury? Yes, provided that the transferred funds are used by the local government for eligible expenditures under the statute. To facilitate prompt distribution of Title V funds, the CARES Act authorized Treasury to make direct payments to local governments with populations in excess of 500,000, in amounts equal to 45% of the local government’s per capita share of the statewide allocation. This statutory structure was based on a recognition that it is more administratively feasible to rely on States, rather than the federal government, to manage the transfer of funds to smaller local governments. Consistent with the needs of all local governments for funding to address the public health emergency, States should transfer funds to local governments with populations of 500,000 or less, using as a benchmark the per capita allocation formula that governs payments to larger local governments. This approach will ensure equitable treatment among local governments of all sizes. For example, a State received the minimum $1.25 billion allocation and had one county with a population over 500,000 that received $250 million directly. The State should distribute 45 percent of the $1 billion it received, or $450 million, to local governments within the State with a population of 500,000 or less. May a State impose restrictions on transfers of funds to local governments? Yes, to the extent that the restrictions facilitate the State’s compliance with the requirements set forth in section 601(d) of the Social Security Act outlined in the Guidance and other applicable requirements such as the Single Audit Act, discussed below. Other restrictions are not permissible. If a recipient must issue tax anticipation notes (TANs) to make up for tax due date deferrals or revenue shortfalls, are the expenses associated with the issuance eligible uses of Fund payments? If a government determines that the issuance of TANs is necessary due to the COVID-19 public health emergency, the government may expend payments from the Fund on the interest expense payable on TANs by the borrower and unbudgeted administrative and transactional costs, such as necessary payments to advisors and underwriters, associated with the issuance of the TANs. May recipients use Fund payments to expand rural broadband capacity to assist with distance learning and telework? Such expenditures would only be permissible if they are necessary for the public health emergency. The cost of projects that would not be expected to increase capacity to a significant extent until the need for distance learning and telework have passed due to this public health emergency would not be necessary due to the public health emergency and thus would not be eligible uses of Fund payments. Are costs associated with increased solid waste capacity an eligible use of payments from the Fund? Yes, costs to address increase in solid waste as a result of the public health emergency, such as relates to the disposal of used personal protective equipment, would be an eligible expenditure. May payments from the Fund be used to cover across-the-board hazard pay for employees working during a state of emergency? No. The Guidance says that funding may be used to meet payroll expenses for public safety, public health, health care, human services, and similar employees whose services are substantially dedicated to mitigating or responding to the COVID-19 public health emergency. Hazard pay is a form of payroll expense and is subject to this limitation, so Fund payments may only be used to cover hazard pay for such individuals. 8 May Fund payments be used for expenditures related to the administration of Fund payments by a State, territorial, local, or Tribal government? Yes, if the administrative expenses represent an increase over previously budgeted amounts and are limited to what is necessary. For example, a State may expend Fund payments on necessary administrative expenses incurred with respect to a new grant program established to disburse amounts received from the Fund. May recipients use Fund payments to provide loans? Yes, if the loans otherwise qualify as eligible expenditures under section 601(d) of the Social Security Act as implemented by the Guidance. Any amounts repaid by the borrower before December 30, 2020, must be either returned to Treasury upon receipt by the unit of government providing the loan or used for another expense that qualifies as an eligible expenditure under section 601(d) of the Social Security Act. Any amounts not repaid by the borrower until after December 30, 2020, must be returned to Treasury upon receipt by the unit of government lending the funds. May Fund payments be used for expenditures necessary to prepare for a future COVID-19 outbreak? Fund payments may be used only for expenditures necessary to address the current COVID-19 public health emergency. For example, a State may spend Fund payments to create a reserve of personal protective equipment or develop increased intensive care unit capacity to support regions in its jurisdiction not yet affected, but likely to be impacted by the current COVID-19 pandemic. May funds be used to satisfy non-federal matching requirements under the Stafford Act? Yes, payments from the Fund may be used to meet the non-federal matching requirements for Stafford Act assistance to the extent such matching requirements entail COVID-19-related costs that otherwise satisfy the Fund’s eligibility criteria and the Stafford Act. Regardless of the use of Fund payments for such purposes, FEMA funding is still dependent on FEMA’s determination of eligibility under the Stafford Act. Must a State, local, or tribal government require applications to be submitted by businesses or individuals before providing assistance using payments from the Fund? Governments have discretion to determine how to tailor assistance programs they establish in response to the COVID-19 public health emergency. However, such a program should be structured in such a manner as will ensure that such assistance is determined to be necessary in response to the COVID-19 public health emergency and otherwise satisfies the requirements of the CARES Act and other applicable law. For example, a per capita payment to residents of a particular jurisdiction without an assessment of individual need would not be an appropriate use of payments from the Fund. May Fund payments be provided to non-profits for distribution to individuals in need of financial assistance, such as rent relief? Yes, non-profits may be used to distribute assistance. Regardless of how the assistance is structured, the financial assistance provided would have to be related to COVID-19. May recipients use Fund payments to remarket the recipient’s convention facilities and tourism industry? Yes, if the costs of such remarketing satisfy the requirements of the CARES Act. Expenses incurred to publicize the resumption of activities and steps taken to ensure a safe experience may be needed due to 9 the public health emergency. Expenses related to developing a long-term plan to reposition a recipient’s convention and tourism industry and infrastructure would not be incurred due to the public health emergency and therefore may not be covered using payments from the Fund. May a State provide assistance to farmers and meat processors to expand capacity, such to cover overtime for USDA meat inspectors? If a State determines that expanding meat processing capacity, including by paying overtime to USDA meat inspectors, is a necessary expense incurred due to the public health emergency, such as if increased capacity is necessary to allow farmers and processors to donate meat to food banks, then such expenses are eligible expenses, provided that the expenses satisfy the other requirements set forth in section 601(d) of the Social Security Act outlined in the Guidance. The guidance provides that funding may be used to meet payroll expenses for public safety, public health, health care, human services, and similar employees whose services are substantially dedicated to mitigating or responding to the COVID-19 public health emergency. May Fund payments be used to cover such an employee’s entire payroll cost or just the portion of time spent on mitigating or responding to the COVID-19 public health emergency? As a matter of administrative convenience, the entire payroll cost of an employee whose time is substantially dedicated to mitigating or responding to the COVID-19 public health emergency is eligible, provided that such payroll costs are incurred by December 30, 2020. An employer may also track time spent by employees related to COVID-19 and apply Fund payments on that basis but would need to do so consistently within the relevant agency or department. Questions Related to Administration of Fund Payments Do governments have to return unspent funds to Treasury? Yes. Section 601(f)(2) of the Social Security Act, as added by section 5001(a) of the CARES Act, provides for recoupment by the Department of the Treasury of amounts received from the Fund that have not been used in a manner consistent with section 601(d) of the Social Security Act. If a government has not used funds it has received to cover costs that were incurred by December 30, 2020, as required by the statute, those funds must be returned to the Department of the Treasury. What records must be kept by governments receiving payment? A government should keep records sufficient to demonstrate that the amount of Fund payments to the government has been used in accordance with section 601(d) of the Social Security Act. May recipients deposit Fund payments into interest bearing accounts? Yes, provided that if recipients separately invest amounts received from the Fund, they must use the interest earned or other proceeds of these investments only to cover expenditures incurred in accordance with section 601(d) of the Social Security Act and the Guidance on eligible expenses. If a government deposits Fund payments in a government’s general account, it may use those funds to meet immediate cash management needs provided that the full amount of the payment is used to cover necessary expenditures. Fund payments are not subject to the Cash Management Improvement Act of 1990, as amended. May governments retain assets purchased with payments from the Fund? 10 Yes, if the purchase of the asset was consistent with the limitations on the eligible use of funds provided by section 601(d) of the Social Security Act. What rules apply to the proceeds of disposition or sale of assets acquired using payments from the Fund? If such assets are disposed of prior to December 30, 2020, the proceeds would be subject to the restrictions on the eligible use of payments from the Fund provided by section 601(d) of the Social Security Act. Are Fund payments to State, territorial, local, and tribal governments considered grants? No. Fund payments made by Treasury to State, territorial, local, and Tribal governments are not considered to be grants but are “other financial assistance” under 2 C.F.R. § 200.40. Are Fund payments considered federal financial assistance for purposes of the Single Audit Act? Yes, Fund payments are considered to be federal financial assistance subject to the Single Audit Act (31 U.S.C. §§ 7501-7507) and the related provisions of the Uniform Guidance, 2 C.F.R. § 200.303 regarding internal controls, §§ 200.330 through 200.332 regarding subrecipient monitoring and management, and subpart F regarding audit requirements. Are Fund payments subject to other requirements of the Uniform Guidance? Fund payments are subject to the following requirements in the Uniform Guidance (2 C.F.R. Part 200): 2 C.F.R. § 200.303 regarding internal controls, 2 C.F.R. §§ 200.330 through 200.332 regarding subrecipient monitoring and management, and subpart F regarding audit requirements. Is there a Catalog of Federal Domestic Assistance (CFDA) number assigned to the Fund? Yes. The CFDA number assigned to the Fund is 21.019. If a State transfers Fund payments to its political subdivisions, would the transferred funds count toward the subrecipients’ total funding received from the federal government for purposes of the Single Audit Act? Yes. The Fund payments to subrecipients would count toward the threshold of the Single Audit Act and 2 C.F.R. part 200, subpart F re: audit requirements. Subrecipients are subject to a single audit or program- specific audit pursuant to 2 C.F.R. § 200.501(a) when the subrecipients spend $750,000 or more in federal awards during their fiscal year. Are recipients permitted to use payments from the Fund to cover the expenses of an audit conducted under the Single Audit Act? Yes, such expenses would be eligible expenditures, subject to the limitations set forth in 2 C.F.R. § 200.425. If a government has transferred funds to another entity, from which entity would the Treasury Department seek to recoup the funds if they have not been used in a manner consistent with section 601(d) of the Social Security Act? The Treasury Department would seek to recoup the funds from the government that recei ved the payment directly from the Treasury Department. State, territorial, local, and Tribal governments receiving funds from Treasury should ensure that funds transferred to other entities, whether pursuant to a grant program 11 or otherwise, are used in accordance with section 601(d) of the Social Security Act as implemented in the Guidance.