The URL can be used to link to this page

11-25-03 agendaCITY OF RICHFIELD, MINNESOTA Re= REGULAR CITY COUNCIL MEETING TUESDAY, NOVEMBER 25, 2003 COUNCIL CHAMBERS 6700 PORTLAND AVENUE 6:30 P.M. AGENDA INTRODUCTORY PROCEEDINGS Call to order Roll call Open forum (15 minutes maximum) Each speaker is to keep their comment period to three minutes to allow sufficient time for others. Comments are to be an opportunity to address the Counci/ on items not on the agenda. /ndividuals who wish to address the Counci/must have registered prior to the meeting, Notes: Pledge of Allegiance Approval of minutes of (1) Special City Council Meeting of November, 6, 2003; and (2) Special City Council Worksession of November 6, 2003 PRESENTATION 1. Recognition of HRA's accomplishment of National Association of Housing and Redevelopment Officials (NAHRO) National Award of Excellence for Woodlake Centre: A New Town Center Begins Staff Report No. 260 Notes: COUNCIL DISCUSSION 2. Council discussion • Annual City Council/Staff Goalsetting Session • Hats Off To Hometown Hits ° Richfield Women of Today ° Richfield Historical Society ° FOWL Ball Golf Klassic Notes: CITY MANAGER'S REPORT 3. City Manager's report Notes: AGENDA APPROVAL 4. Council approval of agenda CONSENT CALENDAR 5. Consent Calendar contains several separate items which are acted upon by the City Council in one motion. Once the Consent Calendar has been approved, the individual items and recommended actions have also been approved. No further Council action is necessary. However, any Council Member may request that an item be removed from the Consent Calendar and placed on the regular agenda for Council discussion and action. All items listed on the Consent Calendar are recommended for approval. A. Consideration of approval of resolution accepting contract with Hennepin County for purchase of diesel and unleaded fuel from December 31, 2003 through December 31, 2010 at cooperative purchase rate determined by Hennepin County bid process S.R. No. 261 B. Consideration of approval of resolution authorizing issuance of second Educational Facilities Revenue Note (Academy of Holy Angels Project), Series 2003, under Minnesota Statutes, Sections 469.152 through 469.165 as amended, to finance property for benefit of Academy of Holy Angels S.R. No. 262 C. Consideration of approval of contract renewal with Chiefs Towing, Inc. for Public Safety towing services from December 1, 2003 through November 30, 2004 S.R. No. 263 D. Consideration of approval of award of contract to VP Enterprises of Minnesota, Inc. for demolition of six houses, four apartment buildings and one commercial building (Airport Noise Acquisition Program) in amount of $148,000 S.R. No. 264 E. Consideration of approval of concept of abatement of City of Richfield taxes in Cedar Point redevelopment area and directing staff to apply to Hennepin County for abatement of their portion of taxes in area S.R. No. 265 F. Consideration of approval of scheduling public hearing on December 9, 2003 for renewal of 2004 on-sale wine and on-sale 3.2 percent malt liquor licenses for Red Pepper Chinese Restaurant, Ketsana's Thai Restaurant and Thompson's Fireside Pizza S.R. No. 266 G. Consideration of approval of scheduling public hearing on December 9, 2003 for renewal of 2004 on-sale intoxicating and Sunday liquor licenses for Chi Chi's Mexican Restaurant; The Ground Round; Khan's Mongolian Barbeque; Minneapolis-Richfield American Legion Post 435; Fred Babcock VFW Post No. 5555 d/b/a Four Nickels.Food and Drink; Don Pablo's Operating Corporation, d/b/a Don Pablo's; Cham Corporation d/b/a Champps Sports Cafe; Wiltshire Restaurants, LLC d/b a Houlpihan~sg Restaurant & Bar; The Frenchmans; and Taco Morelos S.R. No. 267 H. Consideration of approval of scheduling public hearing on December 9, 2003 for renewal of 2004 pawnbroker and secondhand goods dealer licenses for Metro Pawn and Gun, Inc. and Capital Cash, LLC d/b/a Hy's Pawn S.R. No. 268 I. Consideration of approval of canceling December 23, 2003 Regular City Council Meeting S.R. No. 269 J. Consideration. of approval of multi-animal residential kennel license renewal for 6600 Newton Avenue; five dogs S.R. No. 270 K. Consideration of approval of renewal of a currency exchange license for Community Money Centers, Inc. d/b/a Money Centers: S.R. 273 L. Consideration of approval of renewal of a currency exchange license for Checks Cashed ofAmerica, LLC d/b/a Money Exchange S.R. 274 Notes: 6. Consideration of items, if any, removed from Consent Calendar Notes: PUBLIC HEARING 7. Public hearing regarding resolution authorizing conditional use permit to allow limited automobile rental and teasing at 7745 Second Avenue Staff Report No. 271 Notes: OTHER BUSINESS 8. Consideration of request for new multi-animal residential kennel license for 6310 Vincent Avenue; four dogs and two cats Staff Report No. 272 Notes: HRA EXECUTIVE DIRECTOR'S REPORT 9. HRA Executive Director's report Notes: 10. Claims and payrolls Open forum (additional 15 minutes if more. time needed after first Open Forum and by majority vote of the City Council) Each speaker is to keep their comment period to three minutes to a//ow sufficient time for others. Comments are to be an opportunity to address fhe Council on items not on the agenda. Individuals who wish to address the Counci/must have registered prior to the meeting. Notes: 11.Adjournment _-~ Auxiliary aids for individuals with disabilities are available upon request. Requests must be made at least 96 hours in advance to the Administrative Services Director at 612-861-9702. AGENDA SECTION: AGENDA ITEM # REPORT # J REPORT PREPARED BY: COUNCIL PRESENTER: NAME, TITLE DEPARTMENT DIRECTOR REVIEW; C~ Lo SIGNATURE REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDERATION: Reconsideration of the request for a new multi-animal residential kennel license for Janice Dahnke, 6310 Vincent Avenue South. RECOMMENDED ACTION: By Motion: Approve or deny a request for a new multi-animal residential license for Janice Dahnke, 6310 Vincent Avenue South. Council delayed approval for 60 days and placed provisions on the application. ~ II. BACKGROUND Environmental Health staff received a complaint call in April regarding the number of animals and barking dogs at this location. A Community Service Officer left a note informing the homeowner that she needed to apply for amulti-animal residential license if she had more than two animals. At that time, staff was not aware of the number of animals that the resident had. On May 20, 2003, Janice Dahnke submitted an application for a new mufti-animal residential license. A Community Service Officer conducted an inspection of the property on June 20, 2003. The CSO noted that Ms. Dahnke had four dogs and four cats, which exceeds the maximum number of six animals that was approved by STAFF REPORT CITY COUNCIL MEETING NOVEMBER 25, 2003 Qther Business 8 272 BETSY CxRISTENSEN, ADMINISTRATIVE SUPPORT SERVICES MANAGER 1125 Dahnke MultiAnimal Residential the Council as policy on July 22, 1991. The applicant requested additional time to find homes for two of the animals. Another inspection of the property was conducted on August 23, 2003 and there were no apparent problems at that time. The interior of the home was found to be very clean and free of any feces and odors. The applicant had complied with the policy and decreased the number of animals to six. She now owns four dogs and two cats. Ms. Dahnke's application did not contain the signatures of contiguous property owners. Ms. Dahnke provided the City with a letter stating that she approached three contiguous property owners, but they would not sign. On September 9, 2003, Ms. Dahnke's request for a new multi-animal residential license appeared before the City Council. After discussion of the bark collars and training, the City Council issued Ms. Dahnke a 60-day conditional license with the provisions that she purchases bark collars for the two large dogs and provides training for her dogs. City Council advised Ms. Dahnke to provide proof to City staff, prior to the Council meeting following the provisional license expiration, that she purchased the bark collars and provided necessary training. On September 18 and October 23, letters (attached) were sent to Ms. Dahnke confirming the City Council's request for her to provide proof of purchase for the bark collars and training. On October 23, 2003, letters were sent again to all surrounding neighbors advising them to contact the Environmental Health staff with any concerns regarding the request for this multi-animal residential license, and informing them of the November 25, 2003 Council meeting date. City staff received two letters (see attached) and three phone calls. They were all opposed to the multi-animal residential license. They stated that the barking still persists and they have not seen any evidence of the anti-bark collars on either dog. It was stated that when the animals. are outside, the sight of anyone still provokes the barking behavior. When the barking incidents occur, the dogs are quickly brought inside. The dogs are being kept inside more; however, they expressed their concerns about the dogs not being allowed to remain outside for any length of time now and feel they are being too confined. On October 27, 2003, Ms. Dahnke brought in two bark collars to show City staff, along with the receipt for one of the bark collars (receipt attached). She stated she owned one bark collar already and just needed to purchase another. As of November 12, City staff has not received any proof of animal training. The Environmental Health staff received two complaints this past year regarding the dogs barking, the number of animals allowed at this location, and the animals not being licensed. All of the animals are now currently licensed. ~~' There were no other Public Safety complaints or contacts received this past year. III. BASIS OF RECOMMENDATION A. POLICY • The City adopted a policy that staff notifies neighbors surrounding the area of the residential kennel license application. to August 2003, the Environmental Health staff received two letters and two calls from residents that are opposed to this multi-animal residential license. The residents are opposed due to the barking dogs. A copy of the letters are attached. • The neighbors were notified by City staff of the 60-day conditional license and were advised to contact City staff with concerns. City staff received three calls and two letters (letters attached). All were still opposed to the multi-animal residential license. B• CRITICAL ISSUES • Contiguous property owners did not sign the application for the multi- animal kennel license. C. FINANCIAL • N/A D. LEGAL • N/A IV. ALTERNATIVE RECOMMENDATION(S~ • Staff is not making a specific recommendation to either a request for a residential kennel license. pprove or deny the V. ATTACHMENTS • Letter from Ms. Dahnke, dated 9/18/03. • Letters from neighbors opposing the license, dated 7/1/03, 9/3/03 previously submitted; and two new letters, 10/31/03, and 11/7/03. • Letters sent to Ms. Dahnke from City staff, dated 9/18/03 and 10!23/03. • Invoice for Deluxe Bark Control Collar. VI. PRINCIPAL PARTIES EXPECTED AT MEETING • Janice Dahnke. `: JANICE DAHNKE 6310 Vincent Avenue South Richfield MN 55423 612-243-3510 jdahnke@mn.rr.com May 20,2003 Dear City of Richfield, `` On March 14, 2003 I received a violation notice from the city regarding a need for licensing my dogs and for barking dogs. At that time I called to ask for an extension in addressing this matter since I was to be gone for the next two weeks on vacation. On April 4th I went into the city and licensed my four dogs and inquired about the process of obtaining a kennel license. On April 26th, I approached the neighbor to the west of me to get a signature for the license but was turned down. They told me that while they had noticed I had been going outside with the dogs that they did not like the .barking and would not consider signing. The neighbor to the north of me stated that while she did not have a problem with the dogs,-she did not want to sign if no one else did because she did not want to have problems with the neighbors. She has already had some problems with the neighbors to the north so f could completely understand her position. I then decided not to approach the neighbors to the south of me since I already knew their position on my dogs. When I moved into my house in July 2000, another neighbor told I that this couple would not like my dogs. This was confirmed last summer on June 20, 2002 at about 7:30 p.rri, vJhen I walked out of my family room to see the man next door with a broom over my fence swatting at my standard poodle. On April 27th I went back to the City of Richfield to inform them of my inabili to tY obtain signatures. I was told to write a letter regarding this matter and attach it to my application. I decided to approach my neighbors one morertime and try to negotiate with them for a license. I decided I would like to move out of the neighborhood and thong t that ma be they would consider a license giving me time to secure a loan for a new ous my house and buy a new ho approached. my neighbors to the west. I spoke with Bonnie who to d me she wouad talk to her husband and would call me. In the meantime, I contacted the City of Richfiel to let them know I planned to move and was trying to negotiate a license. I did not d receive a call from the neighbors on the west so on Wednesday May 14th I approached the Bonnie's husband Dave. He told me that his wife had not conveyed to him that I had planned to move and would revisit~this, and call me that night. B Saturday, May 17th 1 had not heard anything and in the a.m., I a ain a y Dave. He stated that his wife had lost my number so they did notgcall. He then stated they preferred not to be a "solution to my problem" and would not sign. He stated it wasn't the barking but would stick with the city about only two dogs. They did not me to have four dogs. He stated that a license for one year was too long and the had lived with it long enough. He was not willing to give me time to move. On Sunday I approached the neighbors to the south of me. They had been gone all weekend so had not had a chance to talk to them. They were on the phone and did not have time to talk to me. I then went to work but Tom came to speak with me in the morning. He stated he already knew why I had wanted to talk to him. He stated that all he Dave and Bonnie and Donna wanted were to five in peace and alluded to the fact that I was young and could move that this was it for them. He stated tha and Nila, . want to sign a waiver and was not willing to consider any time for me to move.'dln fact, I was not allowed to even explain anything about my position. I apologize for the lengthiness of this letter. I regret any inconvience I have caused neighbors or the City of Richfield. At this time, I am only asking for time to move. M m dogs are well cared for. They are groomed every three weeks, and have the best of y .veterinary care. All vaccinations are up to date including shots for rabies. My do s ar ~` not outside much and two of my dogs that are small are inside do s. T as dogs will when the see strangers, and rabbits and squirrels (our nei hborho g e them). When they do bark they are brought into the house i g he dogs do bark mmediately. I have even taken to going out with them and staying outside until they are re g od is full of ady to come in. Oddly enough, while out I have heard other neighborhood.dogs barkin as wel dogs are described as being aggressive but have no histo of a g I• My I am a professional person who works hard and has a ~,~, ry 99cessive behavior. my daughter. We are not home much but when we are Iweeare t ref se. I live here with have not ever had trouble with people either whom I work with or live around. This ha been a stressful and time-consumin p tY quiet people. l g problem, s I realize in a neighborhood where houses.: pre close together there is a need t all the needs of those who live around us. I feel l have tried to do that. For exam le since I moved here, I have rarefy turned on m o consider Richfield, the neighbors to the south of me asked me nfot to tuhn m first moved to p because it would shine into their porch and they liked to sit in the dark. I have felt great deal of anxiety on those few occasions when the li h y patio light on turned on either b m self, a Y Y a babysitter pnd/or my nine yg olda I have alsoatried to accommodate them by not letting the dogs out between 7:00 a.m. and 7:1 S a.m. because that is the time they leave in the morning. I .believe it was two winters they told me it was my fault or rather the dogs fault that Nila slid on the ice .•dogs barked, even though the were in their own fenced in yard more tha ago that because my away. n 10 feet •~Y {-.~ This process discourages me. I do feel the neighbors on the west an don the south of me had conversations~regarding this matter and made a joint decision to den ev my second request seeing this as an opportunity for a mandate to have at least two of the dogs removed. Buying a house for the first time and living in a neighborhoo been a disappointing experience. I am not onl disa d has Y ppointed but also feel on edge all the time worrying if the dogs are going to bark or if my neighbors will come u 't other complaints. p ~ h I am only asking for some cooperation and consideration, the sa given others around me, in .order to sell my house, buy a new one and moeve I Tave you for your consideration in this manner. hank " Sincerely, -i. ~ ~~ ]uly 1.2003 Kathy Mueller, Licensing 6700 Portland Avenue Richfield, MN 55423-2599 Dear Kathy Mueller: As per your request during our recent phone conversation, we are expressing our concerns re: the ' . multi-animal residential license request at 6310 Vincent Ave. So. Back in ApMI our neighbor across our back fence to the east at the above address came to us asking us to sign her application for the Residential Kennel license. We refused...as did the other neighbors who are in proximity. As an Incentive, she then ofl''ered to move out of the neighborhood in about a year if we would sign. We still refused. We are totals against granting this license. The following are our reasons for re actin her bid for multi-animal residential license: --~--_~ a ~ • Why does the City of Richfield have ordinances restricting the number of animals per household? Then, as an "out", it allows residents to seek a wayaround these- restrictions? -Why bother with ordinances in the first place if this is the case? 2. All of her 4 dogs are barkers...the farge, white one is especially the worst offender. There are two small white ones, amid-sized black one and the large, white dog. If we are working in our back yard when they are let out, they ail come running to the fence barking offensively. They will continue barking all the while if we would continue working. Until the lady would come out (if she ever did sometimes in past years), she tries to shush them up and herd them back into the house. Sometimes if we are sitting on our deck, the large white dog will stand at the fence and bark at us. The back fence is at least 5Q+ feet from our porch 8Y deck. Other times, the large white dog will . stand at the fence and bark if it even spies us INSIDE our porch! Last winter, it would stan r-lay outside and bark endlessly by itself for no a our conversations with her when she was requesting us pt s ign her o ~ginal petition, she offered to quiet~the large white dog by putting on an electronic anti-barking collar. Nothing was ever done. 3. On warm summer days, working or being next to her back yard, it has a strong odor of dog droppings. She claims to pick up droppings frequently, but our experience 8t observations suggest otherwise. 4. Over the 29 years we've lived in Richfield at our current address, we have experienced a peaceful neighborhood. But in the last 3 years since this neighbor moved in across our back fence with 3 dogs and with now a 4th, it has been anything but peaceful when the dogs are let out of the house. One must try to gauge when and when not to get work done in the back yard ~ gardening, mowing, flower tending, etc. - to avoid the " barking clamor that erupts on these occasions. 5. In past conversations with the Richfield Licensing staff concerning this problem, this neighbor has a seeming history of claiming ignorance of Richfield ordinances in that she had .never licensed her dogs until someone apparently notified the City of the circumstances. Only THEN did she at last license them when she was notified-that she was not in compliance: In addition, last summer there suddenly appeared one day a good-sized playhouse of some sort next to our common fence. Many years ago when we built a storage shed in our back yard and applied for a permit, the City person informed us our building had to be on a concrete foundation, bolted down. There is no such thing as a utemporary" structure in the City of Richfield was his comment. An inspector came around twice to ensure all was OK. Well, this new structure on her property has NO concrete foundation. It is sitting, unanchored, on the grass. A permit . for this? We doubt It. 6. As neighbors, we're a bit indignant that WE are the ones who are seeming to have to "jump through all the hoops" in order to justify why we area ainst her request for this license, while she does seemingly nothing except to just apply for the license in questions What about her stating her reasons and arguments in support of her need for this license? Sincerely, Residents, 6311 Washburn Ave. So. Richfield, MN 55423 Update -July 7, 2003 An added note and incident: on July 7th this neighbor apparently has left a family to dog-sit for her while she is gone for a period of time. During this afternoon, the white dog was let out and It began barking for whatever reason. No one paid any attention to it and it continued barking for quite same time.- We had planned on doing some repair work to our sprinkler system in the afternoon but it was put off due to the apparent non-control of this one animal's barking. One can hardly wo S#r~ne's own property while putting up with this incessant noisel 2~; ~~ro v~l~c~c-T August 31, 2003 Based on observations so far, these our dos 'll~ becorr~ an even further nuisance in an outside kennel. The reason is that they collectively bark at any moving object. They bark at the three closest neighbors at every opportunity but also at my neighbors on the north side. They seem to be rarely, if ever, walked in the neighborhood. It became too difficult to continue planting and watering flowers on the south side of my house because of the dogs. I usually look to see if the dogs are out before going outside to avoid confrontation and certain commotion. Dog manure accumulated for- the entire past winter and when collected this past spring, by one of the hired house persons, filled several large garbage bags that had to be dragged to the front. J as made no effort to control the spreading sedge grass that are really weeds. It is ecoming more and more difficult to keep it out of my yard. There is also a dying tree that needs to be removed. This was a nice neighborhood when I moved herein 1988. It is sad to see it begin to deteriorate. Sincerely yours, c ~o ~ U October 31, 2003 athy Mueller, Public Safety Dept. City of R'~chfield 6700 Portland Ave. So. Richfield, MN 55423 CC: Richfield City Council Members To Whom It May Concern: Since the Richfield-City Council meeting of 9/9/2003 where the Council granted a temporary 60-day Multi-Residential Kennel License for 6310 Vincent Ave. So., it was our understanding that the owner was to have purchased and applied 2 anti-barking collars, one each for the black poodle 8i the big white doh to satisfy the graying of the temporary license. We, as residents at 6311 Washburn Ave. So., have seen no evidence of the anti-barking collars on either dog. And, as a result, the barking problem STILL PERSISTS!! When barking incidents have oavrred during this time period, they have usually been quickly herded bads inside. Although this helps, it still does not prevent the barking episode in the first place. We have observed, since the granting of the temporary license, that the dogs have been kept inside more than in the past and have spent less time outside each time when they've been out. With the cooler season, our activities in the bads yard have naturally decreased. However, when one or either of us have been working outside and the dogs are let out, the sight of either of us it has provoked the same barking behavior as in the past. Our consensus is that in a comparison of barking incidems since the temporary license was granted and the barking incidents before the license issuance, NOTHING HAS CHANGED. We, therefore, ask the Richfield City Council to DENY any further approvals of this license and that the owner comply with the animal ownership. limit as per the current ordinance restricttions. 'this Multi-Residential Kennel License request b denied, will an "inspector" from the City of Richfield ensure that -animal. limit of the current ordinance is complied with by the owner within the "grace." number of days after the denial? Nothing has seemed to work up to this point except for the owner "buying a lot of time" at the neighbors' expense of putting up with this problem. We need some assurance that something will indeed happen to correct. the situation in question. Sincerely, ~~-- onnie 8i David Westermoe 6311 Washburn A~w.,.SA,. ~ .k_~ Richfield, MN 55423 ~ ~ ~~ ~, r ~ ` ` -~ ?~' 03 ~-~- ~_/ ~ r ~ ~ -~ ~~ p- n ~. ~- ~ ~ ~ - a..~. Sc~ ~ vrl c.sa S ~%tl~-vim ~ ~ ~ ~~5 v~ 4 ~ ~ ~~ , s _ ~~ (+ ` ~ ~ ~, _ ~ a-cw~ v ~~~ .. ~~ ,: P ~~ ~ ~ ~ _ ~~ ~ ~~ °~ ~ ~ ~~ ~~ ~ ~ ~ - w~ Q ~. a-~.°~-~- - ~~~ ~ 3, ~ ~ ~~ ~~ ~ ~~ ,g ~, ~ ~ QUC~-~. ~ ~ ,lam ~ ~ ` ~~-~2 . _. - C~~ IOM 12-62 AKA, "~" CITY OF INNEAPOLIS RIAL AND SUPPLIES INVENTORY '~~s11E~ No` 1 EPARTMENT YEAR ENDING DEC. `31, 19~ UND ~ - ' - TA EN BY ORIGI PY ,r LED ,W - CO/~.r APP VED BY ~_ . .~ _ - - ~~ D[PARTM[NT H[AD - AUDITED BY ~ n QUANTITY I DESCRIPTION I ~ _ ` _ I PRICE I EXTENSION I {_ ` ~. r '~ \ ~~ c,~~~ V ~~ n .~ .~ I i ~ ~ ~ ~ ~~ 3c~U ~~I~~ ~ ~.~i~ ~ ~ ~1 Public Safety Department Support Services Division September 18, 2003 ' MAYOR Janice Dahnke MARTw J. KIRSCH 6310 Vincent Avenue South Richfield, MN 55423 cirY couNCa JOHN ENGER SUSAN ROSENBERG SUZANNE M. SANDAHL Dear Ms. Dahnke: GERTRUDE ULRICH This is confirmation of the decision that was made by the City Council on Tuesday, CITY MANAGER September 9, 2003, regarding your request for amulti-animal residential license. The City SAMANTHA ORDUNO Council's decision was to issue you a 60-day conditional license. The City Council requires that you provide proof to city staff by October 27, 2003 that you. have purchased bark collars for the dogs and that training has occurred. Information regarding training should come from someone skilled in the area of animal training. Proof of these two items must be provided to me prior to the next meeting in which this will be addressed. After the 60-day conditional. license-.period, the City Council will meet again°on November 11, 2003. You must be present at this meeting to address any issues and concerns that may arise. We will also contact neighbors. prior to that meeting to obtain any feedback they may have to shire with the City Council. If you have any questions prior to the date of the meeting, please feel free to contact me at (612)-861-9880. - Sincerely, y Mueller ~~++~sl icensing 4 KMatf The UrGart Honu~tvr~~r1 6700 PORTLAND AVENUE, RICHFIELD, MINNESOTA 55423-2599 NON-EMERGENCY 612.861.9800 EMERGENCY 911 www.ci.richfleld.mn.us AN EQUAL OPPORTUNITY EMPLOYER Public Safety Department October 23, zoo3 Support Services Division Janice Dahnke ' MAYOR 6310 Vincent Avenue South MARTIN J. KIRSCH Richfield, MN 55423 ~~ ~CnY COUNCIL JOHN ENGER SUSAN ROSENBERG Re: Your request for aMulti-Animal Residential Kennel License SUZANNE M.SANDAHL GERTRUDE uLRICH Dear Ms. Dahnke: SAMANTHA ORDUNO ,y CItY MANAGER This letter is notification that our request for aMulti-Animal Residential Kennel License scheduled to appear before the City Council again on November 25, 2003 at 6:30 p.m. in the, Council Chambers of Richfield City Hall, 6700 Portland Avenue South. On September 9, 2003 the City Council granted you a 60-day conditional kennel license. At that time, the City Council required. that you purchase bark collars for the dogs and provide training. Proof of these two. items must be provided to city staff no later then November 1, .2003. We will also be contacting your neighbors to obtain any feedback they may have and to inform them of the: City Council meeting date. Please be `present at the meeting so that you can address any issues or concerns that may arise. If you have any questions prior to the date of the meeting, please feel free to contact me at (612) 861-9880. . Sincerely, ~~91~Iler Business Licensing KMatf . _i 6700 PORTLAND AVENUE, RICHFIELDhM NNESOTAO 55423-2599 NON-EMERGENCY 612.861.9800 EMERGENCY 911 wwx'.d.dch8eld.mn.us AN EQUAL OPPORTUNITY EMPLOYER ~~ Electronic Pet Products 2243 Warren Dr. F 'tell, GA 30106 i ,.,=819-1471 BILL TO Janice Dahnke 6310 Vincent Ave. S. Richfield MN 55423 US United States G12-243-3510 r Invoice DATE INVOICE # 8423 SHIP VIA 10/11/2003 UPS Ground Resi QUANTITY ITEM CODE DESCRIPTION PRICE EACH AMOUNT 1 PDBC-300 Deluxe Bark Control Collar SHIPPING UPS Ground Re 71.95 71.95 I Visa RM 'ATTENTION" YOU MUST CALL FOR A RET ' 7.73 URN MERCHANDISE NUMBER IF YOU WISH TO 0.00 ---- ----- - -~--~.._. ~_.:._ RETURN.ANY PROD(tCT. _._ _ ~ lv-Z~-o~ ~(~n . C.c_ ~c.~~ Y~ kL ~ (e ~^ y ~ L ~-~: 0~4 ~..,~ ar~r-ti~. • ~n o l'k.J` So s k ~ c.o-,r lc~ ho. ~ o ~ ~ ~mr Lc~c~ ~' h~ l~.,n z~~ ~ . 3 ~~ yank you for your order. - GA Sales Tau (5.5%) $o.o~ L Total $79.68 r,% ~~..:.. From: "PetSafe Store: Invisible Dog Electric Fence, Pet Doors, Stop Barking Collars & More (through Yahoo! Store Orc1er System)" <pe~~@petsafeston'.com> To: "Janice Dahnke" <jdahnke@mn.rr.com> Sent: Sunday, October 12, 2003 7:49 PM Subject: oniere1ectronic-pet-products-5122 from PetSafie Store: Invisible Dog Electric Fence, Pet Doors, Stop Barking Collars & More Thank you again for your order from PetSafeStore.com The following items have been shipped to: Janice Dahnke 6310 Vincent Ave. S. Richfield MN 55423 US United States 612-243-3510 using UPS Ground Residential The shipper's tracking number is 1Z7AR9270345572470 You can always find out the current status of your order by going to httn://order store•vahoo.com/OS/stat?electronic-net-products±5122+27cefr~QPRZPo,~a~co~,. ------_ Name Code Qty , Each Options . Deluxe Bark Control PDBC-300 171..95 Collar ~S~Pped) UPS Tracking Number: 1 Z7AR9270345572470 Subtotal 71.95 Shipping 7.73 Tax 0.00 This completes your order. Thank you for shopping with us. 10/14/03 REPORT PREPARED BY: COUNCIL PRESENTER: ACTING DEPARTMENT DIRECTOR REVIEW: REVIEWED BY CITY MANAGER: d ITEM FOR COUNCIL CONSIDERATION: Consideration of the attached resolution regarding a request for a conditional use permit to allow limited automobile rental and leasin at 7745 Second Avenue. I. RECOMMENDED ACTION: Conduct and close a public hearing and by motion: Approve the attached resolution authorizing a conditional use permit to allow limited automobile rental and leasing at 7745 Second Avenue, with those conditions listed under the Stipulations For Approval in the Legal section of this report. ~ II. BACKGROUND • Mr. Stephen Lewis is requesting a conditional use permit (CUP) to allow Hertz Local Edition to rent a limited number of vehicles (no more than eight vehicles) at 7745 Second Avenue. • 7745 Second Avenue is zoned C-2, General Commercial. • 7745 Second Avenue is the location of a newly constructed commercial building at the northeast corner of Second Avenue and 78th Street. This recently completed 7,256 square foot building includes a central atrium and 4,950 square foot of leaseable office space. STAFF REPORT AGENDA SECTION: public Hearin AGENDA ITEM # ~ REPORT # 271 CITY COUNCIL MEETING NOVEMBER 25, 2003 BRUCE SYLVESTER, ZONING ADMINISTRATOR Nan1E, T/TLE 1125-CUP-7745-2ndAveS.doc • The owner and primary office tenant, Mr. Bob Lurtsema, has 1,450 square feet of office space that Mr. Lewis would like to lease for office use by Hertz Local Edition, a car leasing and rental business. • In addition to the office space, Mr. Lewis is requesting approval for use of eight parking stalls in the 18-stall parking lot on the site. These eight parking stalls will be for rental vehicles. III. BASIS OF RECOMMENDATION A. POLICY The proposed use as an office and pick-up location for auto rental is classified as `Auto sales/lease lots' in Richfield, and such businesses are conditional uses in the C-2 district. The findings necessary to issue a CUP (546.05, subd.6) are as follows: a) The proposed use is consistent with the goa/s, policies, and objectives of the City's Comprehensive Plan. The Comprehensive Plan calls for `Church' at this location. The site was owned by Assumption Church until last year, when the church sold the parcel to Mr. Lurtsema for a commercial building. In 2002 Mr. Lurtsema received City approval for a small office building at this location based on the C-2 General Commercial zoning of the property. b) The proposed use is consistent with any officially adopted redevelopment plans or urban design guidelines. This requirement is met. There are no officially adopted redevelopment plans for this area. The newly constructed building meets the City's design guidelines for matters such as appearance - and landscaping. c) The proposed use is or will be in compliance with the performance standards specified in Section 541 of this code. This requirement is met. The site and proposed use have been reviewed by City staff and meet the performance standards specified in Section 541. d) The proposed use will not have undue adverse impacts on governmental facilities, utilities, services, or existing or proposed improvements. This requirement is met. Staffs principle concern with the proposed use is the number of vehicles that might be on the parcel at any time. To address this concern, staff is recommending, and the applicant has agreed to, a stipulation that no more than eight for-rent vehicles be allowed on the site at any one time. e) The use will not have undue adverse impacts on the public health, safety, or welfare. This requirement is met. f) There is a public need for such use at the proposed location. The proposed use as an automobile rental lot will provide a community service, particularly given the proximity to both the airport and a large number of automobile service and repair businesses in the area. g) The proposed use meets or will meet all the specific conditions set by this code for the granting of such conditional use permit. This requirement is met. The zoning code specifies eight requirements, which must be met for ~, an automobile sales/lease lot. The current request meets all of these ~~ requirements, as explained below. "Automobile sales/lease lots" are a conditional use in the `C-2' district, as specified in section 526.27, Subdivision 11 of the Zoning Code. This section of the Zoning Code specifies eight requirements for a CUP to be issued for an automobile sales/lease lot. The proposed Hertz Local Edition business meets all eight of these requirements: • The first requirement states that the business must be licensed by the City. The applicant will obtain any City licenses that are required prior to operating his business at this location. • The use site shall not abut a parcel that is zoned `R' or `R-1'. This requirement is met. • A buffer yard of 15 feet is required on all sides to separate all aspects of such use from abutting parcels. This requirement is met. • Landscaping must meet City standards. This requirement is met. • Inoperable vehicles shall not be stored on the premise. The applicant is aware of this requirement and states that it will be met. • Parking of vehicles in the public right-of--way is prohibited. The applicant is aware of this requirement and states that it will be met. • All repair, assembly, disassembly, and maintenance shall occur within an enclosed building. The applicant has stated that no repair, assembly, disassembly, or maintenance will occur at this site because Hertz stores and maintains its vehicle inventory at a large lot near the airport. The proposed use at 7745 Second Avenue will be for customers to pick-up and return vehicles only. • Exterior speakers must conform with City noise control limits. The applicant has informed staff that no exterior speaker will be used. A. CRITICAL ISSUES - 1. Parking. When the new building and parking area at 7745 Second Avenue South were approved by the City Council in 2002, the City noted that for 4,950 square feet of office space, 20 parking stalls need to be provided. 18 parking stalls are provided on-site, and the owner has ashared-parking contract for an additional ten stalls with the Assumption Church, for a total of 28 available parking stalls. Mr. Lewis states that the site will be used for customers to pick-up and drop- off vehicles that are stored at a larger site near the airport and therefore parking for only eight rental vehicles is needed. Mr. Lewis also states that this site will not be used for vehicle storage or repair because Hertz owns and maintains a large site near the airport where their vehicles are stored and serviced. Mr. Lurtsema has included a stipulation in his lease with Mr. Stephens that no more than eight for-rent vehicles will be allowed on the site at any time. The site can accommodate the proposed uses for the building and the parking requirements for the proposed uses. Mr. Lurtsema's business occupies 1,450 square feet of office space and uses only four parking stalls. A hearing aid company that uses 2,050 square feet of office space and needs only four parking spaces also occupies the building. The proposed ~ Hertz business will be the third and final tenant in the building and will use eight parking spaces for both vehicles-for-rent and employees. 2. Rental and not Sales. "Automobile sales and lease lot", as the term implies, allows both the sale and leasing/rental of automobiles. Staff believes that the site in question would NOT be suitable for an automobile sales lot, and so the CUP will specify that vehicles may only be rented or leased at this location. Automobile sales will be prohibited. B. FINANCIAL • N/A C. LEGAL 60-DAY RULE: The 60 day clock `started' when a complete application was received on October 8, 2003. A decision must be given to the applicant by December 7, 2003 OR the Council must notify the applicant that it is extending the deadline (up to a maximum of 60 additional days or 120 days total) for issuing a decision. • Zoning: `C-2', General Commercial. • Land Use: Current: Office building. • Proposed: Office and automobile rental/leasing. • Comprehensive Plan: Church • Notification: Neighbors and property-owners within 350 feet • Other Actions: • Planning Commission: The Planning Commission held a public hearing on October 27, 2003 and voted to approve the requested CUP. • HRA: N/A • Hearing Examiner: N/A. Stipulations of Approval: 1. No more than eight vehicles for rent or for lease are allowed on the site at any one time. 2. The sale of vehicles at this location is prohibited. IV. ALTERNATIVE RECOMMENDATION~S~ • Deny the requested conditional use permit to allow an automobile lease lot to operate at 7745 Second Avenue. • Approve the requested conditional use permit to allow an automobile lease lot to operate at 7745 Second Avenue with different stipulations for approval. V. ATTACHMENTS • City Council resolution • Site plan and area maps VI. PRINCIPAL PARTIES EXPECTED AT MEETING • Mr. Stephen Lewis, Hertz Local Edition, applicant RESOLUTION NO. RESOLUTION AUTHORIZING A CONDITIONAL USE PERMIT FOR LIMITED AUTOMOBILE LEASING/RENTAL AT 7745 SECOND AVENUE SOUTH WHEREAS, an application has been filed with the City of Richfield which requests approval of an `Automobile Lease/Rental Lot' conditional use permit to allow limited automobile leasing/rental on land generally located at 7745 Second Avenue South, legally described as: That part of Government Lot 1 described as follows: The South 174 feet of the West 91 feet of the East 216 feet of the Southwest'/ of the Southeast'/ of Section 34, Township 28 North, Range 24 West of the 4th Principal Meridian, Hennepin County, Minnesota; and The west 68.00 feet of the east 284.00 feet of the south 156.00 feet of that part of Government Lot 1 which lies within the Southwest Quarter of the Southeast Quarter, Section 34, Township 28, Range 24, except road, Hennepin County, Minnesota; together with that part of said Government Lot 1, described as follows: Beginning at the northwest corner of the west 68.00 feet of the east 284.00 feet of the south 156.00 feet of said Government Lot 1; thence South 00 degrees 15 minutes 01 seconds West along the west line of said west 68.00, a distance of 116.00 feet to the north right-of--way line of Interstate Highway No. 494; thence South 89 degrees 55 minutes 29 seconds West along said right-of--way line, a distance of 14.65 feet to the east line of Second Avenue South; thence North 00 degrees14 minutes 58 seconds East along said east line of Second Avenue South a distance of 134.00 feet; thence North 89 degrees 55 minutes 29 seconds East a distance of 82.65 feet to the west line of east 216 feet of said Government Lot 1; thence South 00 degrees 15 minutes 01 seconds West along said last described west line, a distance of 18.00 feet to the north line of said south 156.00 feet of Government Lot 1; thence South 89 degrees 55 minutes 29 seconds West along said north line a distance of 68.00 feet to the point of beginning; WHEREAS, the Planning Commission of the City of Richfield has recommended approval of this requested conditional use permit at 7745 Second Avenue at its October 27, 2003 meeting; and WHEREAS, this requested conditional use permit at 7745 Second Avenue meets those requirements necessary for issuing a conditional use permit as specified in Richfield's Zoning Code, Section 546.05, subd.6, except as specified in Staff Report No. and WHEREAS, the City has fully considered the request for approval of the conditional use permit. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Richfield, Minnesota, as follows: 1. A conditional use permit is issued for limited automobile leasing and rental, as described in Staff Report No. , on the Subject Property legally described above. 2. This conditional use permit at 7745 Second Avenue is subject to the following conditions in addition to those specified in Sections 526.27 Subdivisions 11 of the City's zoning code: A) That the recipient of this conditional use permit record this resolution with the County, pursuant to Minnesota Statutes Section 462.36, Subdivision and Richfield Zoning Code 546.05, Subdivision 7; B) That no more than eight vehicles for rent or for lease are allowed on the site at any time; C) That the sale of vehicles is prohibited at this location (7745 Second Avenue). 3. The conditional use permit shall remain in effect for so long as conditions regulating it are observed, and the conditional use permit shall expire if normal operation of the use has been discontinued for 12 or more months, as required by the Zoning Ordinance, Section 546.05, Subd. 9 Adopted by the City Council of the City of Richfield, Minnesota this 25th day of November, 2003. Martin J. Kirsch, Mayor ATTEST: Nancy Gibbs, City Clerk APPLICATION FOR A CONDITIONAL USE PERMIT TO ALLOW AUTOMOBILE RENTALS AT 7745 SECOND AVENUE SOUTH OCTOBER 2003 LAND USE WITHIN 350 FEET a Z Y Z ~ ' ~ O fA N h rrni ar. 100 0 100 200 300 400 500 600 700 800 Feet Q N 10-8-03 APPLICATION FOR A CONDITIONAL USE PERMIT TO ALLOW AUTOMOBILE RENTALS AT 7745 SECOND AVENUE SOUTH OCTOBER 2003 ZONING WITHIN 350 FEET '< ~ N 111 77TH ST. ZONING SYMBOLS C-2 =GENERAL COMMERCIAL goo o ~o0 200 3oa aoo soo soo Few N 10-8-03 ~~°?~.' ..~ i~ n ~ ^7 ~"~ ? N I~~ n i . r n 1 i ~ i I z GTi 1 C I V 00 Iw d v I~. E ^ ~ !CI _ ~ ~: ee ;<; A ~_ CL;s. •G7 Z F ~~ ~ e [- d Q V" ~I F~zz Z //~~- F.1~ s ~~ ., ~~GGCm ~ i a: p'q • z zZ~~=I< m x .. ; 3la m ~ ~i n amzZZ aal ~~ r. n w a~ Q O p 4 I '~' ;' n :A LR Sti Se 6Y '~ ¢ o Q Q~ a ~i p~ 7 n W K N N~ N p~ Or ~ , C F W L ~ J~ S 1'~/p C~ N ~ W y~ }~ N @~~ r T N. ~ Z Q C ~ C ~ VW' R.' uz] ~ ~ vD aaII E ~ n d vi ci a ~4s~~~ ~ ~~~ ~~~~ ~r~~~ z zy~~~ F w 3cw ~mm2~ ~z~wx ~~ .~~CnO ~I E, wax z~ce~.1 ~ac~~ s, a;ZZJF +~ ri1 ZS:7 cr. v~ina 6i is inns ~( as a i s¢~<a Y~~=o ~ >' ~ s ~ ~~ ; ~~~ ~r ~ l; YY N O ~F ^~~ ~~ LWL =d i d.`s: ffi: ~w, ~~; ~ -E ~= ~ cos V '~~ ~~u ~ 3 S i a ~ €~~g cr m ~i ~5' ~~€~ ~o ~ H ~ e o ~ 8~, a Z 0 g i J a m c ~.I. ~~ ,_~., ~ j I ~ ~~ ~' o ~ , d G~Gi~~G~G~634i~i G~G~i~4~G~G~4~~di14~4~G~ b /I~~ 1 ~/FYI iaq YE~e 8e i j l F ' a t a ~rM ~ ;~a~~ iZ7I a' w ~_ ~ ~- ~ ~ l ~ / m ~~W ~^~ fri ;a e > x \~~• a ~a~Qz IYI 71 / 4 N l 7 s W Q N t Q a ~ ~ J z v ~ = r. C7 J ~ ~ ~ '~. x Q ,~ ! ~ C7 s , , , ~ Z , , G ~~ V D Z J 4 b n iv $ ~~ ~ ~Q Y a~a`Q a~s ~ d a, ~ 3~o W ~. ~I j fi ~ _ 3 : ~ ~ m° ~>=. ~ W =~ o ~ 8 ~~ ~~~ d y,,. g ~o( =~W~ ~ rc N &.~ +~~ ~3z, Yg ~ g~ ~ am sm "~ ~a 3 I^ 'I_1 m '~ _~ 1 F 1'~~ j TL~ _ _ N ~ ~ r R ~• ~ f j.T• 1.~ Z ~-` Z a 717 b;J J _ ~ I ~N'N2f'dd ~ 1NIN`Jb,~ J OO .,0-.~ ~ ~~ 'E ..'~-,y Q i I W - .- ~ ~~ 1~_fi I L-1i -1 Z 9 . - • • , I \ = ~ ~ ~ r 1-I~r - Ij~ GIB' f I ~ W a ? a c a `S ~ J 2 IJ ~ ~~ ~ ~ ~~-~ ~ /J Ih ~ ~, < ;I m n ~w <i J uv J ~^ J 7 d 11 it ,,, n ~ a J y ~ I w ~ Q c° i a a u7 ~ ..t~~ ,D m ~ ~ J I mi -'Yc ~ ~ ~~-E ~ . ~ ~ I I c Uf ~ i s .~ Q . ~; ~ W~~ ~ ~ -- ~ m IY _ = V IH ~ ~,: ~ ~ .... L .x z a U J ~ Y R [ J 2 ~ ti a. H i Z I~ r .,l0.CL00 ~ I __~ ~•Kl. 04'9l. ~:; ~a~W ~ ~ jj ~~~~ ~ _. , ~ 1 I ~V I ~ I l IS~'i ~ W~ i W .?C ..~ W / ~ / II I V •Y "E ~ ~ F u ~ ~ tj~ ~~ l ~ ~ ~ \ I ~- I - ri / ~ I ~~ dS` I .. m . z y ~~$ ~bl ~ I ~ ~i C~ ~ ~ I ~ ~~ r ~m ~ ~_ 2 T _ ~L ~~ .^I'I I a ~ X 1 ~ l { /z ~I I ~ ~ gg i \~ I$Z `~Ij k4~~~1 I ~ I i I 3 ~ I ,:, o i ~3 ,~ i i „t i ~ m I I ) ~ ~~' i g„ t~'x ~ .j ci ~' IJ cy _ ~, ! l ' ~ I j I u :_ ill-- j ~ -n c ~ ;ire'" ~ ' j i 5~ _ ~ v _z ;_/; ~ ..',ll lN3nNFAM A 13i~ ~PZ 15Y3 3Na f.1 3Nl a53M~ ~ !~~ ~ 3 .P:.fIDO M -971NB NYINy5373! j Y / L ' '' I S J.~ 'NZ fD 3NIl lSI z -. - ~~~M~ , -- -- ----- a U tll Z a W Q ' Z a 0 Q i J 4 N Z J a W H W • • • AGENDA SECTION: AGENDA ITEM # REPORT # ~- STAFF REPORT CITY COUNCIL MEETING NOVEMBER 25, 2003 Consent 5L 274 REPORT PREPARED BY: BETSY CxRISTENSEN, ADMINISTRATIVE SUPPORT SERVICES MANAGER NAME, TITLE COUNCIL PRESENTER: NAME, DEPARTMENT DIRECTOR REVIEW: REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDERATION: Consideration of the request from the State of Minnesota to review the request for the renewal of a currency exchange license for Checks Cashed of America, LLC d/b/a Money Xchange, 1508 East 66th Street. I. RECOMMENDED ACTION: By Motion: Approve the request for the renewal of a currency exchange license for Checks Cashed of America, LLC d/b/a Money Xchange, 1508 East 66th Street. II. BACKGROUND On October 11, 2003, the City received notification from the State of Minnesota, Department of Commerce, of a renewal application for a currency exchange license in the name of Checks Cashed of America, LLC d/b/a Money Xchange, 1508 East 66th Street. All of the information required by the State of Minnesota has been provided by Checks Cashed of America, LLC d/b/a Money Xchange. In addition, the background investigation conducted by the Bureau of Criminal Apprehension found no information on the applicants, Sherri Marzario and Mark Smith. 1125 Money Xchange Renewal There were no police contacts for this address for the previous year. The applicant has complied with State Statute 53A.04 for a currency exchange license with the State of Minnesota. III. BASIS OF RECOMMENDATION A. POLICY • A license for this type of business is not required in the City. However, effective on April 24, 1992, Minnesota Statute 53A.04 requires that the Department of Commerce submit any application for licensure as a currency exchange license to the governing body of the municipality in which the business proposes to conduct business. • This law also requires the governing municipality to render a decision regarding issuance or denial of the license within 60 days of the receipt of the State's notification. • The State requires that the applicant submit the following information when applying for this type of license: • License fees in the amount of $50. • A current fee schedule used for cashing checks, money orders, or traveler's checks. • A surety bond in the amount of $10,000. • Any owner, partner, director, stockholder (owning 10% or more of the corporate stock) or any employee with the authority to exercise management or policy control over the company must submit to a background investigation by the Bureau of Criminal Apprehension. B. CRITICAL ISSUES • Minnesota Statues Chapter 53A.04 requires that the City in which the currency exchange conducts business must render a decision regarding the renewal of the license within 60 days of receipt of the request from the state; in this case, December 1, 2003. C. FINANCIAL • N/A D. LEGAL • N/A IV. ALTERNATIVE RECOMMENDATION(S~ • Deny the request for the renewal of a currency exchange license for Checks Cashed of America, LLC d/b/a Money Xchange. However, the Public Safety Department has found no reason to deny the requested license. V. ATTACHMENTS • None VI. PRINCIPAL PARTIES EXPECTED AT MEETING • None AGENDA SECTION: Gonsent AGENDA ITEM # Sg REPORT # 273 STAFF REPORT CITY COUNCIL MEETING NOVEMBER 25, 2003 REPORT PREPARED BY: BETSY CxRISTENSEN, ADMINISTRATIVE SUPPORT SERVICES MANAGER NAME, TITLE COUNCIL PRESENTER: DEPARTMENT DIRECTOR REVIEW: /-~ REVIEWED BY CITY MANAGER: NAME, TITLE ITEM FOR COUNCIL CONSIDERATION: Consideration of the request from the State of Minnesota to review the request for the renewal of a currency exchange license for Community Money Centers, Inc. d/b/a Money Centers, 6525 Nicollet Avenue South. I. RECOMMENDED ACTION: By Motion: Approve the request for the renewal of a currency exchange license for Community Money Centers, Inc. Money Centers, 6525 Nicollet Avenue II. BACKGROUND On October 11, 2003, the City received notification from the State of Minnesota, Department of Commerce, of a renewal application for a currency exchange license in the name of Community Money Centers, Inc., d/b/a Money Centers, 6525 Nicollet Avenue South. All of the information required by the State of Minnesota has been provided by Community Money Centers, Inc. d/b/a Money Centers. In addition, the background investigation conducted by the Bureau of Criminal Apprehension found no information on the applicants, Cary D. Geller and Richard Krietzman. 1125 Money Centers Renewal There were fourteen Public Safety contacts for this address for the previous year. The contacts included four restraining order violations, three orders for protection, one parking violation, two burglary alarms, two check forgeries, and two disturbances. The applicant has complied with State Statute 53A.04 for a currency exchange license with the State of Minnesota. III. BASIS OF RECOMMENDATION A. POLICY • A license for this type of business is not required in the City. However, effective on April 24, 1992, Minnesota Statute 53A.04 requires that the Department of Commerce submit any application for licensure as a currency exchange license to the governing body of the municipality in which the business proposes to conduct business. • This law also requires the governing municipality to render a decision regarding issuance or denial of the license within 60 days of the receipt of the State's notification. • The State requires that the applicant submit the following information when applying for this type of license: • License fees in the amount of $50. • A current fee schedule used for cashing checks, money orders, or traveler's checks. • A surety bond in the amount of $10,000. • Any owner, partner, director, stockholder (owning 10% or more of the corporate stock) or any employee with the authority to exercise management or policy control over the companymust submit to a background investigation by the Bureau of Criminal Apprehension. B. CRITICAL ISSUES • Minnesota Statues Chapter 53A.04 requires that the City in which the currency exchange conducts business must render a decision regarding the renewal of the license within 60 days of receipt of the request from the state; in this case, December 1, 2003. C. FINANCIAL • N/A D. LEGAL • N/A IV. ALTERNATIVE RECOMMENDATION(S~ • Deny the request for the renewal of a currency exchange license for Community Money Centers, Inc., d/b/a Money Centers. However, the Public Safety Department has found no reason to deny the requested license. V. ATTACHIVIENTS -- None VI. PRINCIPAL PARTIES EXPECTED AT MEETING • None AGENDA SECTION: Consent AGENDA ITEM # rj J REPORT # 270 ~' STAFF REPORT CITY COUNCIL MEETING NOVEMBER 25, 2003 REPORT PREPARED BY: BETSY CxRISTENSEN, ADMINISTRATNE SUPPORT SERVICES MANAGER NAME, TITLE COUNCIL PRESENTER: NAME, TITLE DEPARTMENT DIRECTOR REVIEW: SIGNATURE REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDERATION: Consideration of a request for the renewal of amulti-animal residential kennel license for Louise Loftis, 6600 Newton Avenue South. I. RECOMMENDED ACTION: By Motion: Approve the request for the renewal of a multi- animal residential kennel license for Louise Loftis, 6600 Newton Avenue South. II. BACKGROUND On August 21, 2003, Louise Loftis submitted an application for the renewal of a multi-animal residential kennel license. She owns five dogs. Her application is complete and contains the signatures of contiguous property owners. Staff received one phone call in response to this multi-animal residential license request. The caller stated that he was not opposed to the license, but stated he felt five dogs were too many for one residence. A Community Service Officer conducted an inspection of the property on September 18, 2003. There were no apparent problems found at that time. 1125 Loftis MultiAnimal Kennel Renewal The Environmental Health Division has no history of receiving complaints at this address in the past year. Police received one barking dog call, which they assisted and advised. They received one suspicious activity and one over-time parking. These police contacts were not related to the multi-animal kennel license. III. BASIS OF RECOMMENDATION A. POLICY • Although this application is for five dogs, it does not exceed the maximum number of six that was approved by the Council as policy on July 22, 1991. • The City has adopted a policy that staff is to notify neighbors surrounding the area of the multi-animal residential license. Staff received one call regarding this application. The caller was not opposed to issuing the requested license. B. CRITICAL ISSUES • N/A C. FINANCIAL • NA I~. LEGAL • N/A IV. ALTERNATNE RECOMMENDATION(S~ • Deny the request for the renewal of amulti-animal residential kennel license for Louise Loftis; however, the Public Safety Department has not found any basis for a denial. V. ATTACIIMENTS • None VI. PRINCIPAL PARTIES EXPECTED AT MEETING • None AGENDA SECTION: AGENDA ITEM # REPORT # STAFF REPORT CITY COUNCIL MEETING NOVEMBER 25, 2003 CONSENT 5I 269 REPORT PREPARED BY: CHERYL 11tCUMHOLZ, ADMIN. ASSISTANT NAME, TITLE COUNCIL PRESENTER: NAME, TITLE REVIEWED BY CITY MANAGER: 111 ..~~'''``~~ ITEM FOR COUNCIL CONSIDERATION: Consideration of canceling the December 23, 2003 City Council meeting. I. RECOMMENDED ACTION: By Motion: Cancel the December 23, 2003 City Council meeting. II. BACKGROUND • The City Council regularly meets the second and fourth Tuesday evening of each month. The fourth Tuesday, December 23, 2003. • Past practice has been to cancel the Council meeting on the fourth Tuesday of December due to the Christmas holiday. • Agenda items for the December 23 Council meeting can be considered on December 9, 2003 or carried over to January 13, 2004. Therefore, it is suggested that the Regular Council meeting scheduled for December 23 be canceled. III. BASIS OF RECOMMENDATION A. POLICY • Past practice has been to cancel the Council meeting on the fourth Tuesday of December due to the Christmas holiday. 1210cancel B. CRITICAL ISSUES • City Council business can be considered on December 9, 2003 or carried over to January 13, 2004. • This item has been placed on the November 25 City Council agenda so proper notification can be made if the meeting is canceled. IV. ALTERNATIVE RECOMMENDATION~S~ • Do not cancel the December 236 Council meeting. V. ATTACHMENTS • None. VI. PRINCIPAL PARTIES EXPECTED AT MEETING • None. AGENDA SECTION: Consent AGENDA ITEM #jg REPORT # 2fi8 J STAFF REPORT CITY COUNCIL MEETING NOVEMBER 25, 2003 REPORT PREPARED BY: BETSY CxRISTENSEN, ADMINISTRATIVE SUPPORT SERVICES MANAGER NAME TITLE COUNCIL PRESENTER: NAME, TITLE DEPARTMENT DIRECTOR REVIEW: ® ~ (~~~ J SIGNATURE REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDERATION: Consideration of the renewal of pawnbroker and secondhand goods dealer licenses for 2004 for Metro Pawn and Gun, Inc. and Capital Cash, LLC d/b/a Hy's Pawn and setting public hearin date. I. RECOMMENDED ACTION: By Motion: Approve a public hearing to be held December 9, 2003, for the renewal of pawnbroker and secondhand goods dealer licenses for 2004 for Metro Pawn and Gun, Inc. and Capital Cash, LLC d/b/a Hy's Pawn. II. BACKGROUND The pawnbroker and secondhand goods dealer licenses will expire on January 1, 2004. Hearings must be scheduled and held before a renewal license may be considered. The renewal process has been initiated. Holding the public hearing on December 9, 2003 will provide ample time to complete the licensing process before January 1, 2004. 1125 Set PH Pawnbroker & Secondhand Goods Renewal III. BASIS OF RECOMMENDATION A. POLICY • City ordinance provides that the City Council conducts a public hearing to consider all pawnbroker and secondhand goods dealer license renewals. B. CRITICAL ISSUES • N/A C. FINANCIAL • N/A D. LEGAL • N/A IV. ALTERNATIVE RECOMMENDATION(S~ • Schedule the hearing for another date; however, this may delay the licensing process. V. ATTACHMENTS • None VI. PRINCIPAL PARTIES EXPECTED AT MEETING • None AGENDA SECTION: Consent AGENDA ITEM # 5G REPORT # 267 STAFF REPORT CITY COUNCIL MEETING NOVEMBER 25, 2003 REPORT PREPARED BY: BETSY CxRISTENSEN, ADMINISTRATIVE SUPPORT SERVICES MANAGER NAME, TITLE COUNCIL PRESENTER: NAME, TITLE DEPARTMENT DIRECTOR REVIEW: ~h ~~ ~' SIGNATURE REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDERATION: Consideration of the renewal of on-sale intoxicating and Sunday liquor licenses for 2004 for Chi Chi's Mexican Restaurant, The Ground Round, Khan's Mongolian Barbeque, Minneapolis- Richfield American Legion Post 435, Fred Babcock VFW Post No. 5555 d/b/a Four Nickels Food and Drink, Don Pablo's Operating Corporation d/b/a Don Pablo's, Champps Operating Corporation, dba Champps Sports Cafe, Wiltshire Restaurants, LLC dba Houlihan's Restaurant & Bar, The Frenchmans, and Taco Morelos, and setting date of public hearing. I. RECOMMENDED ACTION: By Motion: Approve a public hearing to be held December 9, 2003, for the renewal of on-sale intoxicating and Sunday liquor licenses for 2004 for Chi Chi's Mexican Restaurant, The Ground Round, Khan's Mongolian Barbeque, Minneapolis-Richfield American Legion Post 435, Fred Babcock VFW Post No. 5555 d/b/a Four Nickels Food and Drink, Don Pablo's Operating Corporation d/b/a Don Pablo's, Champps Operating Corporation d/b/a Champps Sports Cafe, Wiltshire Restaurants, LLC d/b/a Houlihan's Restaurant & Bar, The Frenchmans, and Taco. Morelos. 1125 Set PH OnSale & Sunday Liquor Renewals II. BACKGROUND The on-sale liquor licenses for restaurant establishments will expire on January 1, 2004. Hearings must be scheduled and held before a renewal license may be considered. The renewal process has been initiated. Holding the public hearing on December 9, 2003 will provide ample time to complete the licensing process before January 1, 2004. III. BASIS OF RECOMMENDATION A. POLICY • City ordinance provides that the City Council conducts a public hearing to consider all liquor license renewals. B. CRITICAL ISSUES • N/A C. FINANCIAL • N/A D. LEGAL • N/A IV. ALTERNATIVE RECOMMENDATION(S~ • Schedule the- hearing for another date; however, this may delay the licensing process. V. ATTACHMENTS • None VI. PRINCIPAL PARTIES EXPECTED AT MEETING • None AGENDA SECTION: Gonsent AGENDA ITEM # 5F REPORT # 266 ~~ STAFF REPORT CITY COUNCIL MEETING NOVEMBER 25, 2003 REPORT PREPARED BY: BETSY CxRISTENSEN, ADMINISTRATIVE SUPPORT SERVICES MANAGER NAME, TITLE COUNCIL PRESENTER: NAME, TITLE DEPARTMENT DIRECTOR REVIEW: ® ~~~ SIGNATURE REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDERATION: Consideration of the renewal of on-sale wine and on-sale 3.2 percent malt liquor licenses for 2004 for Red Pepper Chinese Restaurant, Ketsana's Thai Restaurant and Thompson's Fireside Pizza, and settin ublic hearin date. I. RECOMMENDED ACTION: By Motion: Approve a public hearing to be held December 9, 2003, for the renewal of on-sale wine and on-sale 3.2 percent malt liquor licenses for 2004 for Red Pepper Chinese Restaurant, Ketsana's Thai Restaurant and Thompson's Fireside Pizza. II. BACKGROUND The on-sale wine and on-sale 3.2 percent malt liquor licenses for restaurant establishments will expire on January 1, 2004. Hearings must be scheduled and held before a renewal license may be considered. The renewal process has been initiated. Holding the public hearing on December 9, 2003 will provide ample time to complete the licensing process before January 1, 2004. 1125 Set PH Wine & Malt Liquor Renewal III. BASIS OF RECOMMENDATION A. POLICY • City ordinance provides that the City Council conduct a public hearing to consider all on-sale wine and on-sale 3.2 percent malt liquor license renewals. B. CRITICAL ISSUES • N/A C. FINANCIAL • N/A D. LEGAL • N/A IV. ALTERNATIVE RECOMMENDATION(S~ • Schedule the hearing for another date; however, this may delay the licensing process. V. ATTACHMENTS • None VI. PRINCIPAL PARTIES EXPECTED AT MEETING • None AGENDA SECTION: AGENDA ITEM # REPORT # STAFF REPORT CITY COUNCIL MEETING NOVEMBER 25, 2003 Consent 5E 265 REPORT PREPARED BY: JOHN STARK, ASSISTANT DIRECTOR OF COMMUNITY DEVELOPMENT NAME, TITLE COUNCIL PRESENTER: ACTING DEPARTMENT DIRECTOR REVIEW: SIGNATURE REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDERATION: Consideration of a motion supporting the concept of an abatement of the City of Richfield taxes in the Cedar Point redevelopment area, and directing staff to apply to Hennepin County for abatement of their portion of the taxes in the area. I. RECOMMENDED ACTION: By Motion: Adopt a motion supporting an abatement of the City of Richfield taxes in the Cedar Point redevelopment area and directing staff to apply to Hennepin County for abatement of their portion of taxes in the area. II. BACKGROUND • The new north-south runway has been constructed approximately 1,200 feet from the single-family neighborhood in the area north of 66th Street between Cedar Avenue and 17th Avenue. • This area has been termed the "Cedar Point Redevelopment Area." • This area is part of the Low Frequency Noise Impact Area in Richfield; this designation is based on the results of a City of Richfield/Metropolitan Airports Commission (MAC) noise study that concluded that the existing structures will be unable to endure the negative impacts of the low frequency noise, anticipated to exceed 87 decibels, once the new north-south runway becomes operational. 112503 abatement • Noise studies indicate that masonry constructed commercial structures with a continuous building mass and a height exceeding that of adjacent structures is required to help block low frequency noise penetration into the neighborhood. • There were 63 single-family homes, seven apartment buildings (88 units) and 30 commercial properties in the proposed development area. During the past three years, the City of Richfield has acquired 30 of the single-family homes, four of the apartment buildings (60 units) and 27 of the commercial properties. These properties were acquired in cooperation with the State of Minnesota and the Metropolitan Airports Commission (MAC). • It is estimated that the cost to purchase the remainder of affected properties in the proposed development area will be approximately $10.8 million. • Despite numerous legislative initiatives, the City of Richfield has been unable to secure additional funding for the remainder of the affected properties in the proposed development area. • The City of Richfield has been in discussions with developers regarding the redevelopment of the site with a noise compatible use. • The Ryan Companies has proposed the construction of a 300,000+ sq. ft. retail center, constructed of masonry materials, with a continuous building footprint of 1,400 linear feet and a height exceeding all surrounding properties. • The $10.8 million cost of acquiring the remaining developed property plus the $3 million appraised value of the already vacant land, however, is cost prohibitive for the development being proposed. • In order for the proposed development to be financially viable, Ryan has indicated that public financing will be necessary to provide public assistance to reduce the site assembly costs to a financially feasible level. • Evidence shows that this area will not meet the definition of "substandard" as currently identified in redevelopment statutes, a TIF District is not a viable source of public financing. • Tax Abatement has been investigated to determine its viability as a means of providing the necessary land assembly cost assistance. • Prior to runway construction, the area's annual property tax contribution was $68,380 to the City of Richfield and $86,258 to Hennepin County. • With the completion of recent property purchases by the City of Richfield, and the exemption of these properties from property tax payments, the area's annual property tax contribution will be $26,713 to the City of Richfield and $33,698 to Hennepin County; this represents a decline of $41,670 to the City and $52,560 to Hennepin County. • As money becomes available, it is the City of Richfield's stated policy to complete property acquisitions in this area. Once completed the annual property tax contribution will be $0. • Once completed, the development proposed by Ryan would result in annual property tax contribution of approximately $176,662 to the City of Richfield and $222,851 to Hennepin County. • Without public assistance of approximately $3 million to assist in reducing the land costs, it would be financially infeasible to construct the proposed development. • The City of Richfield could authorize an abatement of its portion of the property taxes to a $0 base for the maximum allowable period of 15 years. This would result in a tax abatement valued at $1,246,159. • Upon the expiration of such a tax abatement, it would take the City of Richfield only two and a half years to recuperate the property taxes that could have been realized during the abatement period at the property's present state. • An abatement by the City of. Richfield alone, however, would still result in a funding gap to provide the necessary land acquisition assistance. • It has been determined that this funding gap could be eliminated by a tax abatement by Hennepin County. • The remaining funding needed could be provided through the abatement of Hennepin County's abatement of its portion of tax revenues in the area. The duration of such an abatement would either be 15 years with the current tax base of $33,698 or the same results could be achieved with a 12 year abatement at a $0 base. Either case would result in a Hennepin County tax abatement valued at approximately $1.8 million • Upon the expiration of such a tax abatement, it would take the Hennepin County only two and a half years to recuperate the property taxes that could have been realized during the abatement period at the property's present state of improvement. • Staff presented the concept of tax abatement in this area to a concurrent work session of the City Council and Richfield Housing and Redevelopment Authority (HRA) on November 17, 2003. • At its regular meeting on November 17, 2003, the Richfield HRA adopted a motion to provide the City Council with an advisory recommendation to support the concept of tax abatement in this area. • With the support of the City Council, through the adoption of the proposed motion, staff will be in a position to begin discussions with the Hennepin County Board. III. BASIS OF RECOMMENDATION A. POLICY • The City of Richfield has committed itself to the removal of homes and businesses in the low frequency noise area that will be unable to withstand the negative affects of low frequency noise. • The City of Richfield has committed itself to replacing the acquired homes and businesses with uses that will serve as a noise buffer to homes and businesses to the area's immediate west. • Staff has determined that it is unlikely, if not impossible, for private redevelopment in this area without additional public assistance. • Evidence suggests that the area will not qualify for tax increment financing under current State statues. • Tax abatement is an alternative source of public assistance that could facilitate redevelopment in the low frequency noise area and, in particular, in the Cedar Point redevelopment area. B. CRITICAL ISSUES ' • Without additional public assistance, it is unlikely, if not impossible, for private redevelopment to occur in this area. • Without private redevelopment, this area will remain as tax exempt, it will require perpetual funding for property management and it will not buffer adjacent neighborhoods from the negative effects of low frequency noise. C. FINANCIAL • City and HRA staff has been working closely with financial analysts at Ehlers and Associates, Inc. in order to conclude that private redevelopment will not occur without additional public financing and that tax abatement is the most feasible source of additional public financing. D. LEGAL • City and HRA staff has been working closely with legal counsel in exploring the need for, and legal ramifications of, tax abatement. IV. ALTERNATIVE RECOMMENDATION~S~ • Ask staff to provide further information and continue the consideration of a motion on the issue to a later meeting. • Do not adopt a motion supporting the concept of tax abatement in the Cedar Point redevelopment area. V. ATTACHMENTS • N/A VI. PRINCIPAL PARTIES EXPECTED AT MEETING • Legal Counsel. • A representative of Ehlers & Associates, Inc. ~~2ui5~a~ AGENDA SECTION: AGENDA ITEM # REPORT # J STAFF REPORT CITY COUNCIL MEETING NOVEMBER 25, 2003 CONSENT SD 264 REPORT PREPARED BY: JULIE URBAN, COMMUNITY DEVELOPMENT SPECIALIST NAME, TITLE COUNCIL PRESENTER: ACTING DEPARTMENT DIRECTOR ^ REVIEW: SIGNATURE REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDERATION: Consideration to award a contract to VP Enterprises of Minnesota, Inc. for the demolition of six houses, four apartment buildings and one commercial building, Airport Noise Acquisition Program (ANAP). I. RECOMMENDED ACTION: By Motion: Award a contract to VP Enterprises of Minnesota, Inc. for the demolition of six houses, four apartment buildings and one commercial building, Airport Noise Acquisition Program (ANAP). II. BACKGROUND • On March 26, 2002 the City Council approved an agreement (Agreement) with the Metropolitan Airports Commission (MAC) to provide $10 million in grant money from the Metropolitan Airports Commission to the City of Richfield to .purchase properties (including all related costs) that are, or will be, negatively impacted by airport operations. • Twenty-one single family and duplex properties in the 6600 and 6700 blocks of 18th Avenue were purchased with the funds. Fourteen of the homes have been moved. Six are ready for demolition. • Four apartment buildings in the 6300 and 6400 blocks of Cedar Avenue were also purchased. These buildings will be ready for demolition soon. 112503demolition bidsrevised.doc • The commercial building at 6700 Cedar Avenue was purchased with other MAC funds. This building will be ready for demolition soon. _ The Council approved demolition specifications for these properties on October 14, 2003. • Sealed bids were received and opened on November 13, 2003. • Bids were received from 13 companies. VP Enterprises of Minnestoa, Inc. was the low bidder for the work at $148,000. III. BASIS OF RECOMMENDATION A. POLICY • Demolition of the properties is necessary to make the land available for redevelopment to airport-compatible uses and structures. • These buildings are not candidates for moving. B. CRITICAL ISSITES • All abatement work will be completed before demolition begins. Abatement activity is being handled under a separate contract. • Demolition must be completed by March 31, 2004. • In addition to submitting the low bid, VP Enterprises of Minnesota, Inc. meets all bidding requirements. C. FINANCIAL • Bids ranged from $148,000 to $322,500. • VP Enterprises MN, Inc. is the low bidder at $148,000. • Sufficient grant funds remain to pay for the demolition costs. • Expenses for demolition of the commercial building at 6700 Cedar Avenue will be paid for out of separate MAC funds. D. LEGAL • The City is required to accept the lowest qualified bidder. • The appropriate bidding process was followed in awarding the bids. IV. ALTERNATIVE RECOMMENDATION(S~ • Reject all bids. V. ATTACHMENTS • Summary of bid responses. VI. PRINCIPAL PARTIES EXPECTED AT MEETING • N/A CITY OF RICHFIELD, MINNESOTA Bid Opening November 13, 2003 11:00 am Building Demolition 18th and Cedar Avenues Pursuant to requirements of Resolution No. 1015, a meeting of the Administrative Staff was called by Deborah Guiher, Deputy City Clerk, who announced that the purpose of the meeting was to receive, open and read aloud, bids for 18th and Cedar Avenues Building Demolition, as advertised in the official newspaper on October 30, 2003 and the Construction Bulletin on October 31, 2003 and November 7, 2003. Present: Deborah Guiher, Deputy City Clerk John Stark, Community Development Representative Cheryl Krumholz, City Manager Representative The following bids were submitted and read aloud: Bidder's Name/City Bid Bond Total Bid Amount Stout Mechanical Provided $235,800.00 RJK Contracting Provided $177,644.00 F.M. Frattalone Excavating & Grading, Inc Provided $246,633.96 Holst Excavating, Inc Provided $218,445.00 Minnesota Specialized Trucking, Inc Provided $149,723.75 Doboszenski & Sons, Inc Provided $322,500.00 Max Steininger, Inc Provided $239,750.00 Wickenhauser Excavating, Inc Provided $164,800.00 VP Enterprises of MN, Inc Provided $148,000.00 Landwehr Construction, fnc Provided $188,650.00 Carl Bolander & Sons, Co Provided $221,650.00 Lloyd's Construction Services, Inc Provided $195,580.00 Veit Companies Provided $166,178.00 The Deputy City Clerk announced that the bids would be tabulated and considered at the November 25, 2003 City Council Meeting. Deborah Guiher Deputy City Clerk AGENDA SECTION: Consent AGENDA ITEM # 5C REPORT # 263 ~~ STAFF REPORT CITY COUNCIL MEETING NOVEMBER 25, 2003 REPORT PREPARED BY: JAY HENTHORNE, POLICE LIEUTENANT NAME, TITLE COUNCIL PRESENTER: NAME, TITLE a~ J~..~, DEPARTMENT DIRECTOR REVIEW:. ~ DAN SCOTT, DIRECTOR OF PUBLIC SAFETY SIGNATURE REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDERATION: Consideration of renewing the contract with Chief's Towing, Inc., for Public Safety towing services for ®ecember 1, 2003 throu h November 30, 2004. I. RECOMMENDED ACTION: By Motion: Approve the attached December 1, 2003 through November 30, 2004 towing service contract .between the City and Chief's Towing, Inc., 8610 Harriet Avenue South, Bloomington, MN, and the 1.3% increase in charges contained therein. III. EACUGROUND The City currently has a contract with Chief's Towing Inc., for Public Safety towing services. Chief's Towing, Inc. was awarded the contract for 2003 and would like to renew the contract for the year 2004 as the contract expires on November 30, 2003 The contract can be automatically renewed if both parties agree to the renewal and if Chief's notifies the City in writing 30 days in advance of the expiration of the contract that they wish to renew. Chief's Towing, Inc. is located in the City of Bloomington and previously contracted with the City of Richfield for Public Safety towing services. Their performance 1125Chief s Towing Contract Renewal during the contract period was satisfactory. They meet all requirements stated in the contract, and currently tow for Bloomington Police. III. BASIS OF RECOMMENDATION • ~nier~s notitied the City that they wish to renew the contract. • The Public Safety Department wishes to renew the contract with Chief's Towing, Inc. • Chief's Towing is the only service that meets the strict terms of the contract that has expressed an interest in performing the towing. A. POLICY • Contracts for services need not be competitively bid. • The contract has numerous conditions that must be met. Chief's Towing, Inc. is a reputable, established towing business that meets all contract requirements. B. CRITICAL ISSUES • A six-month notice must be given by either party in writing to terminate the contract. • On December 1, 2003, Public Safety must have towing services. This is particularly important with the possibility of snow emergencies occurring at any time. • Chief's is a large towing company that can handle the needs of Public Safety regarding seizure/impound vehicles and comply with City ordinances that a smaller company could not handle effectively. C. FINANCIAL • The current contract with Chief's reflects rates from 2003. Rates will increase 1.3 percent for the period December 1, 2003 -November 30, 2004. This is according to the Consumer Price. Index as it relates to the Minneapolis/St. Paul Metropolitan area. • There is adequate funding in the Public Safety budget to cover the increased costs. D. LEGAL • The City Attorney has reviewed and approved the past contract with Chief's Towing, Inc. TERNATIVE • uo nor sign the contract. However, Public Safety must have towing and impound services. ~ V . ATTACHMENTS • i owing contract for December 1, 2003 -November 30, 2004. • Specification for 2003 Towing, Impounding and Storage of Motor Vehicles (Exhibit A). • Revised Proposal Form indicating rate change for contract year beginning December 1, 2003 through November 30, 2004 (Exhibit B). VI. .PRINCIPAL PARTIES EXPECTED AT MEETING • None AGREEMENT BETWEEN THE CITY OF RICHFIELD AND CHIEF'S TOWING, INC. ~_ FOR TOWING, IMPOUNDING AND STORAGE OF MOTOR VEHICLES THIS AGREEMENT is made this 30th day of November, 2003, between the City of Richfield, a Minnesota municipal corporation located at 6700 Portland Avenue South, Richfield, Minnesota 55423 (hereinafter referred to as the "City"), and Chief's Towing, Inc., located at 8610 Harriet Avenue South (hereinafter referred to as the "Contractor"). WITNESSETH WHEREAS, the City has a need to contract for the towing, impounding and storage of motor vehicles; and WHEREAS, the City requires that the towing operators are located within three (3) miles of the City limits; and WHEREAS, the Contractor is the operator of a towing and storage facility within three (3) miles of the City limits and has the expertise and capabilities to provide the required services; NOW THEREFORE, in consideration of the terms and conditions expressed herein, the parties agree as follows: TERM OF AGREEMENT The term of this Agreement shall be from December 1, 2003, to November 30, 2004, subject to termination as provided in Subdivision V. II. DUTIES OF CONTRACTOR A. The Contractor shall tow, impound, and store all motor vehicles, which are ordered removed under the direction of the police chief, or the fire chief, of the City of Richfield or their authorized and legal representatives. The Contractor shall be entitled to a charge for its towing and storage services pursuant to those fees specified in the Contractor's Proposal (Exhibit B). It is agreed that neither the City nor the Richfield Police Department is responsible for any charges as a result of towing and/or storage, with the exception of those vehicles identified by the Police as subject to forfeiture, and that the Contractor assumes liability for any unpaid charges. B. The Contractor agrees to provide the services, as proposed, and perform all other terms and conditions according to the City's Specifications and the Contractor's Proposal, incorporated by reference herein as Exhibit A and Exhibit B. C. The Contractor shall defend, indemnify and hold harmless, the City of Richfield, its officials, employees and agents, from any and all claims, causes of action, lawsuits, damages, losses, or expenses, including attorney fees, arising out of or resulting from the Contractor's (including its officials, agents or employees), performance of the duties required under this Agreement, provided that any such claim, damages, loss or expense is attributable to bodily injury, sickness, diseases or death or to injury to or destruction of property including the loss of use resulting therefrom and is caused in whole or in part by any negligent actor omission or willful misconduct of Contractor. D. It is agreed that nothing herein contained is intended or should be construed in any manner as creating or establishing the relationship of copartners between the parties hereto or as constituting the Contractor's staff as the agents, representatives or employees of the City for any purpose in any manner whatsoever. The Contractor and its staff are to be and shall remain an independent contractor with respect to all services performed under this Agreement. The Contractor represents that it has, or will secure at its own expense, all personnel required in performing services under this Agreement. Any and all personnel of the Contractor or other persons, while engaged in the performance of any work or services required by the Contractor under this Agreement, shall have no contractual relationship with the City and shall not be considered employees of the City, and any and all claims that mayor might arise under the Workers' Compensation Act of the State of Minnesota on behalf of said personnel or other persons while so engaged, and any and alt claims whatsoever on behalf of any such person or personnel arising out of employment or alleged employment including, without limitation, claims of discrimination against the Contractor, its officers, agents, contractors or employees shall in no way be the responsibility of the City; and the Contractor shall defend, indemnify and hold the City, its officers, agents and employees harmless from any and all such claims regardless of any determination of any pertinent tribunal, agency, board, commission or court. Such personnel or other persons shall not require nor be entitled to any compensation, rights or benefits of any kind whatsoever from the City, including, without limitation, tenure rights, medical and hospital care, sick and vacation leave, Workers' Compensation, Unemployment Compensation, disability, severance pay and PERA. E. The parties agree to comply with the Minnesota State Human Rights Act, Minnesota Statutes, Section 363. F. The Contractor agrees to maintain for the full term of this Agreement, the following minimum insurance coverage: a) $1,000,000.00 Comprehensive General Liability insurance, Business Auto Policy with $1,000,000.00 limits and Garage Keeper's Legal Liability. b) Workers' Compensation insurance covering all employees of the Contractor, or his agents, in accordance with the Minnesota Workers' Compensation Law. Certifications of insurance must be filed with the City and shall include a provision that states the insurance company shall give the City at least 25 days written notice prior to cancellation, non-renewal, or any material change in the policy. The Contractor further agrees to name the City of Richfield as additional insured on said comprehensive general liability policy. G. The Contractor agrees to furnish on or before the date this Agreement becomes effective, an acceptable corporate surety bond in the amount of $10,000, payable to the City of Richfield and subject to approval by the Richfield City Attorney, for the faithful performance of all duties and obligations imposed under the terms and conditions of the Agreement. III. DUTIES OF THE CITY The City agrees to pay the Contractor the flat rate charge of $135.40 per vehicle for the towing and storage of vehicles identified by the Police Department as subject to forfeiture and which are subsequently released to the Police Department. IV. MISCELLANEOUS A. This agreement represents the entire Agreement between the Contractor and the City and supersedes and cancels any and all prior agreements or proposals, written or oral, between the parties .relating to the subject matter hereof; and amendments, addenda, alterations, or modifications to the terms and conditions of this Agreement shall be in writing and signed by both parties. S. The Contractor agrees to comply with the Americans With Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, and not discriminate on the basis of disability in the admission or access to, or treatment of employment in its services, programs, or activities. The Contractor agrees to hold harmless and indemnify the City from costs, including but not limited to damages, attorney's fees and staff time, in any action or proceeding brought, alleging a violation of ADA and/or Section 504 caused by the Contractor. Upon request, accommodation will be provided to allow individuals with disabilities to participate in all services, programs and activities. The City has designated coordinators to facilitate compliance with the Americans with Disabilities Act of 1990, as required by Section 35.107 of the U.S. Department of Justice regulations, and to coordinate compliance with Section 504 of the Rehabilitation Act of 1973, as mandated by Section 8.53 of the U.S. Department of Housing and Urban Development regulations. C. The Contractor will comply with all applicable provisions of the Minnesota Government Data Practices Act, Chapter 13 of the Minnesota Statutes. The Contractor agrees to comply with all applicable local, state and federal taws, rules and regulations in the performance of the duties of this contract. D. This Agreement shall not be assignable except at the written consent of the City. E. The books, records, documents, and accounting procedures of the Contractor, relevant to this Agreement, are subject to examination by the City, and either the legislative or state auditor as appropriate, pursuant to Minnesota Statutes, Section 168.06, Subdivision 4. F. The City and the Contractor agree to submit all claims, disputes and other matters in question between the parties arising out of or relating to this Agreement to mediation. The mediation shall be conducted through the Mediation Center, 1821 University Avenue, St. Paul, Minnesota. The parties hereto shall decide whether mediation shall be binding or non-binding. If the parties cannot reach agreement, mediation shall be non-binding. In the event mediation is unsuccessful, either party may exercise its legal or equitable remedies and commence such action prior to the expiration of the applicable statute of limitations. V. TERMINATION Either party may terminate this Agreement for any reason upon giving six (6) months advanced written notice to the other party. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed the day and year first above written. DATED: DATED: DATED: CITY OF RICHFIELD BY: Its Mayor BY: Its Manager CHIEF'S TOWING, INC. BY: Its: EXHIBIT A 2003 SPECIFICATIONS TOWING, IMPOUNDING AND STORAGE OF MOTOR VEHICLES GENERAL: It is the intent and purpose of these specifications to specify and detail the requirements for the Towing, Impounding and Storage of Motor Vehicles for the City of Richfield 24 hours per day, 365 days per year, on an as needed and directed basis. Such direction is to be by the Chief of Police, the Fire Chief, or their authorized and legal representatives. The contract for service shall commence on December 1, 2003 and terminate on November 30, 2004. The City reserves the right to extend the contract for additional (1) one year periods if such an extension is permitted by the Contractor, the standard of service is satisfactory, and, has the approval of the Richfield City Council. At the time of contract extension, the contractor may request a price increase for all categories to be effective during the contract extension period. Any requested increase shall not exceed the Consumer Price Index for the Minneapolis/St Paul urban area and have the approval of the Richfield City Council. Application for extension and price increases or decreases shall be initiated by the performing contractor, must be submitted in writing and be in the hands of the proper Director of Public Safety at least sixty (60) days prior to the date of contract expiration. All of the towing, impounding and storage of motor vehicles under this contract shall be in accordance with Minnesota Chapter 1686 and any section of the Richfield City Code related thereto. SPECIAL PROVISIONS: 1. The contractor must own or have direct access to satisfactory equipment and trained, available personnel, in order to provide immediate and prompt service as ordered and requested by the authorized City officials. 2. The contractor must own or have available within (3) miles of Richfield's city limits the following equipment as a minimum: A. Two trucks having a manufacturer's gross vehicle weight rating of 4 ton or more, to be equipped with a crane and winch, and further equipped to control the movement of the towed vehicle, and 13. Equipment sufficient and designed to move a completely demolished vehicle by means of dollies or low-bed trailers. A listing of all equipment to be utilized shall be submitted to the City. Such listing shall show the make and model of all equipment available for use under this contract, along with size and all other pertinent information, such as specialized equipment not necessarily herein specified, but which may be a factor in performing effectively and efficiently. All equipment to be used by the contractor under this contract shall be maintained in good repair and condition. The City reserves the right to inspect the equipment from time to time for the purpose of determining that equipment condition is in conformance with the terms and conditions of the specifications and the contract. 3. All storage and parking lot facilities and all equipment to be used by the contractor under this contract must be located within (3) miles of Richfield's city limits. The storage and parking lot facilities must meet all of the applicable State building code standard and municipal license and zoning requirements, including those relating to screening and landscaping of the City in which the facility is located. 4. The facilities proposed to be utilized under this contract must have the capability of storing a minimum of one (1) vehicle inside and a further capability of providing storage for a minimum of (25) twenty-five vehicles outside. Inside storage will be necessary only when so requested or directed by an authorized official of the City of Richfield as identified in these specifications. When a direction is given to store a unit inside, such directions may be accompanied by certain instructions for security measures to be employed. The security responsibilities become the responsibility of the storing agent while the unit is in their keeping. 5. The Contractor performing under this contract shall assume all and full responsibility for the conduct of his/her employees. The Contractor guarantees that all of the employees performing under this contract will be adequately trained in their profession, will respond promptly to all calls, will provide safe and adequate equipment (as herein specified), be clean and neat in appearance, use decent language, free of profanity, and treat the public courteously at all times. Request for service from the Richfield Police Department must be given priority by all dispatchers. Failing to meet any or all of the requirements of this section may result in cause for terminating the contract at any time as per the conditions specified for contract termination. 6. The Contractor will be solely responsible for loss or damage to any vehicle, including all equipment and .contents, from the time direction is given by the authorized City representative turning the vehicle over to the Contractor or his Agency and until such time as the vehicle is legally released to the registered or actual owner or legal agent thereof. 7. The performing contractor must agree to maintain proper records of all vehicles received. The record keeping system shall meet the approval of the Richfield Public Safety Director and records are to be available at all times for inspection by authorized City officials. The records must include a copy of the police impounding report. A report shalB be submitted monthly to the Richfield Public Safety Director detailing all vehicles stored or released during that current month. All contents of such reports shall meet the approval of the Richfield Public Safety Director. 8. All vehicles towed or impounded are to be released only upon proper authority of the Richfield Public Safety Director, except for private tows. 9. While performing under this contract and under these specifications, the Contractor or their designated representative(s) must be present at the storage facility six (6) days a week, IVlonday through Saturday, between the hours of 8:00 a.m. and 6:00 p.m. (excluding legal holidays) and from 12:00 p.m. (noon) to 1:00 p.m. each Sunday and all legal holidays, for the purpose of releasing vehicles to authorized claimants. Police requested releases will be handled anytime. 10. It shalt be agreed under this contract that motor vehicles will not be driven at anytime during the towing procedure. In the event that the vehicle is without tires or has flat tires, the performing Contractor agrees to tow the vehicle without damaging the wheels and further agrees not to tow any vehicle on its rims, on wheels without tires, or on flat tires. 11. Upon arrival at the scene of a tow where a vehicle accident has occurred, the performing Contractor, in addition to the physical removal of the vehicle, assumes full responsibility for removing any vehicular parts or other debris, excluding liquids and other commercial cargo, resulting from the accident. This clean-up is to be completed without any additional compensation. 12. The performing Contractor shall be entitled to a charge for his/her towing and storage services pursuant to the fees submitted in the accompanying bid proposal. The Contractor shall agree that neither the City nor any Department thereof is responsible for any charges as a result of towing and/or storage and that the Contractor assumes all liability for any and all unpaid charges. NOTE: This Provision and these Specifications are in no way a law or regulation relating to "price, route, or service of any motor carrier with respect to the transportation of property," under 49 U.S.C. Sec. 14501(c)(1)(1997). 13. If an involved private owner/operator makes a timely request for a tow by other than our Contractor, such request shalt be honored by the Police Department. In either instance, the owner/operator is solely responsible for all associated charges. 14. For vehicles identified by the Police Department as subject to forfeiture, and subsequently released to the Police Department pending the outcome of forfeiture proceedings, the performing contractor shall indicate a flat rate charge per forfeited vehicle. The flat rate shall include the towing, storage on the date of the tow, and three days of storage after the date of the tow. The flat rate applies to all cars, vans, small trucks, 4-wheel drive vehicles, utility vehicles, and motorcycles identified by the Police Department as subject to forfeiture to the City. 15. Should the Contractor fail to appear at a designated tow point within twenty (20) minutes after receiving a call for a tow, the City reserves the right to call another towing service to perform the work. If the Contractor is called and is unable to respond due to conditions beyond their control, the authorized City officials shall be immediately so informed, and the right is hereby reserved to call another service to perform the work. If, at any time, it becomes necessary for the City to request the services of another towing service for the reasons detailed above, the City retains the right to hold the Contractor retained under this contract responsible for any additional charges over and above the fee schedule recorded in this bid proposal. Such charges shall be assessed only if the response time is due to negligence or laxity on the part of the contractor, which negligence might include equipment failure. 16. The Contractor performing under this contract shall operate and maintain its parking and storage facility in compliance with the terms of this contract and all State and City applicable laws, ordinances, and rules and regulations that are presently in effect, or which may hereafter be adopted. 17. IVo alterations or modifications of the terms of this contract shall be valid unless made in writing and signed by authorized representatives of both parties hereto. 18. In the event of a breach by the Contractor of any terms or conditions of this agreement, the City shall have, in addition to any other legal recourse, the right to terminate this agreement forthwith. 19. Either party may terminate this contract upon the serving of such termination notice to the other, in writing, (6) six months prior to the intended termination date. 20.A copy of this contract, along with the authorized fee schedule, shall be posted in a conspicuous place in the Contractor's place of business. INSURANCE: The successful Contractor shall not commence work under this contract until the specified insurance coverages have been obtained. The Contractor shall file, with the Richfield City Clerk, all certificates of insurance or documentation thereof indicating that all specified insurance have been obtained and are in full force. The City of Richfield shall be named as an additional insured on said comprehensive general liability policy. The following coverages are required as minimums: 1. Public Liability Insurance: $1,000,000 Comprehensive General Liability (including assault and battery). 2. Business Auto Policy with all coverages (all vehicles), with $.1,000,000 limits. 3. Garage Keepers' Legal Liability. 4. Workers' Compensation Insurance covering all employees of the Contractor, or his agents, working under this contract in accordance with the Minnesota Workers Compensation Law. The Contractor shall agree to provide to the Richfield City Clerk, 25 days prior written notice in the event any policy is canceled or a material change is effected and each policy must contain a provision that the insurer notify the Richfield City Clerk immediately if a policy is canceled or a material change has been effected. PERFORMANCE BONDo On or before the date that the contract between the City and the Towing service becomes effective, the Contractor shall file with the Richfield City Clerk an acceptable Corporate surety bond in the amount of $10,000, payable to the City of Richfield and subject to the approval by the Richfield City Attorney for the faithful performance of all duties and obligations imposed under the terms and conditions of the contract. REVISED PROPOSAL FORM EXHIBIT B CITY OF RICHFIELD, MN PROPOSAL FOR TOWING, IMPOUNDING AND STORAGE OF VEHICLES TO THE CITY COUNCIL, CITY OF RICHFIELD CONSUMER PRICE INDEX INCREASE 12/1/2002 12 MONTHS 12/1/2003 THROUGH ENDING 6/30/03 THROUGH 11/30/2003 1.3% 11/30/2004" " Towin of i d d g mpoun a cars, trucks (under 1-1/2 ton capacity), motorcycles, all-terrain vehicles, snowmobiles and unattended utility trailers towed from within the City of Richfield...... $64.25 Towing charge for same from Outside the City of Richfield.... $64.25 Mileage charge for same.... $2.15 Towing of trucks (larger than 1 ton capacity) within the City of Richfield ........................ $107.10 Towing charge for same outside the City of Richfield.... $107.10 Mileage charge for same.... $2.95 USE OF WINCH WITH TOW Car (Per hour maximum of $64.75) $16.05 Truck (Per hour maximum of $106.90) $26.80 Use of Dolly ..................... $16.05 Use of low-bed trailer or truck.... $80.35 (Flatbed Required) Storage Charges First 24 hours or fraction thereof: A. Inside Storage $28.90 B. Outside Storage $21.45 Each Additional 24 Hours or Fract ion Thereof: A. Inside Storage $28,90 B. Outside Storage $21.45 Forfeitures Vehicles forfeited to the City of $133.65 Richfield $.84 $65.10* $.84 $65.10* $.03 $2.20* $1.39 $108.50* $1.39 $108.50* $.04 $3.00* $.21 $16.25* $.35 $27.15* $.21 $16.25* $1.05 $81.40* $.38 $29.30* $.28 $21.70* $.38 $29.30* $.28 $21.70* $1.74 $135.40* *Cents are rounded AGENDA SECTION: Consent AGENDA ITEM # 5B REPORT # 262 ~i REPORT PREPARED BY: CHRIS REGIS, FINANCE MANAGER NAME, COUNCIL PRESENTER: STAFF REPORT CITY COUNCIL MEETING NOVEMBER 25, 2003 DEPARTMENT DIRECTOR REVIEW: REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDERATION: Consideration of the attached resolution regarding the financing of a project undertaken by the Academy of Holv Angels. I. RECOMMENDED ACTION: By Motion: Approve the attached resolution authorizing the issuance of a second Educational Facilities Revenue Note (Academy of Holy Angels Project), Series 2003, under Minnesota Statutes, Sections 469.152 through 469.165, as amended, to finance property for the benefit of Academy of Holy Angels; approving the form and authorizing the execution of related documents; and. providing for the security, rights and remedies of the owners of the note. II. BACKGROUND • At the November 26, 2002 City Council meeting, a preliminary resolution was approved that gave preliminary approval to the financing of a project to be ~- ~ undertaken by the Academy of Holy Angels (Holy Angels). The amount of financing approved at the November 26, 2002 meeting in the form of revenue bonds or obligations was in the amount not to exceed $10,000,000. • At the December 10, 2002 City Council meeting, the Council approved the issuance of Educational Facilities Revenue Notes in the amount of $8,540,000 for a project that would renovate and add to existing facilities at Holy Angels. The project would include the construction and equipping of a new convocation center and gymnasium, including class and meeting room space together with related facilities. Holy Angels is now requesting an additional $1,460,000 to complete the financing of the construction project. This will bring the total outstanding financing to $10,000,000. • The City will issue a revenue obligation note to be designated the Educational Facilities Revenue Note (Academy of Holy Angels Project), Series 2003. The revenue obligation would be purchased by Wells Fargo Bank Minnesota, National Association, with the proceeds of the sale then being loaned to Holy Angels. The City would only serve as a conduit for the project financing. The City would not incur any financial liability as a result of the issuance of the debt, nor would the City incur any out of pocket expenses. III. BASIS OF RECOMMENDATION A. POLICY • Under the Minnesota Municipal Industrial Development Act, Minnesota Statutes, Sections 469.152 to 469.165, the City of Richfield has authority to issue revenue bonds. B. CRITICAL ISSUES • The remaining balance of bank qualified debt for 2003 expires at December 31, 2003. C. FINANCIAL • The amount of the Educational Facilities Revenue Note (Academy of Holy Angels Project) is $1,460,000. • The amount of City of Richfield bank qualified debt used by Holy Angels totals $10 million. • The Educational Facilities Revenue Note will be issued in the City's name, but will not be a charge against the City's general credit or taxing powers. The City will act as a conduit for the financing of the project. It does not create any financial liability to the City. • The estimated cost of the project is approximately $10.8 million. • The City is to be reimbursed and held harmless for and from any out-of-pocket expenses related to the tax exempt financing, including, but not limited to, legal fees, financial analyst fees, bond counsel fees, staff costs, and any deposits or application fees required under state law in order to secure allocation of bonding authority. • Anon-refundable administrative fee in the amount of $2,500 has been charged to Holy Angels. • Holy Angels will be charged an annual administrative fee in the amount of 1/8th of 1% (.125%) of the outstanding principal balance of the bonds. D. LEGAL • Kennedy & Graven will serve as bond counsel for the issue. IV. ALTERNATIVE RECOMMENDATION(S~ • Forgo approving the attached resolution and not proceed with the issuance of the private activity revenue bonds. V. ATTACHMENTS • Resolution • Educational Facilities Revenue Note(Academy of Holy Angels Project) • Loan Agreement between City of Richfield and Academy of Holy Angels • Pledge Agreement between City of Richfield and Wells Fargo Bank Minnesota, National Association VI. PRINCIPAL PARTIES EXPECTED AT MEETING • John Utley, Kennedy & Graven, Chartered • Representative from Academy of Holy Angels ~~YIS~~ ~ 1~rn ~B RESOLUTION NO. ~ n „ ~. ~ ~~ ~ RESOLUTION APPROVING AND AUTHORIZING THE ISSUANCE OF ITS EDUCATIONAL FACILITIES REVENUE NOTE (ACADEMY OF HOLY ANGELS PROJECT), SERIES 2003, UNDER MINNESOTA STATUTES, SECTIONS 469.152 THROUGH 469.165, AS AMENDED, TO FINANCE PROPERTY FOR THE BENEFIT OF ACADEMY OF HOLY ANGELS; APPROVING THE FORM AND AUTHORIZING THE EXECUTION OF RELATED DOCUMENTS; AND PROVIDING FOR THE SECURITY, RIGHTS AND REMEDIES OF THE OWNERS OF THE NOTE WHEREAS, under the Minnesota Municipal Industrial Development Act, Minnesota Statutes, Sections 469.152 through 469.165, as amended (the "Act"), each municipality and redevelopment agency of the State of Minnesota (as defined in the Act), including the City of Richfield, Minnesota (the "City"), is authorized to issue revenue obligations to finance improvements to land and buildings and capital equipment for the benefit of a revenue producing enterprise to be owned by a contracting party (as defined in the Act); and WHEREAS, pursuant to Section 469.155, Subd. 4, of the Act, the City is authorized to issue the Note (as defined below) to pay, purchase or discharge all or any part of the outstanding indebtedness of a contracting party that is an organization that is primarily engaged in educational activities as an elementary, secondary or post- secondary school and that was previously incurred in the acquisition or betterment of its existing facilities to the extent deemed necessary by the City Council of the City; and WHEREAS, the City has proposed to issue a revenue obligation to be designated the Educational Facilities Revenue Note (Academy of Holy Angels), Series 2003 (the "Revenue Note" or the "Note"), and loan the proceeds derived from the sale of the Revenue Note to Academy of Holy Angels, a Minnesota nonprofit organization (the "Borrower"), to finance and refinance a project comprised of: (i) the renovation of, and the construction of additions to, the Academy of Holy Angels High School (the "Facility") owned by the Borrower and located at 6600 Nicollet Avenue South in the City; (ii) the acquisition and installation of equipment in the Facility; and (iii} the refunding of outstanding indebtedness of the Borrower previously incurred to finance the acquisition and betterment of the Facility (collectively, the "Project"); and WHEREAS, the Revenue Note is proposed to be purchased by Wells Fargo Bank, National Association, a national banking association (the "Lender"), and the proceeds derived from the sale of the Revenue Note are proposed to be loaned to the Borrower pursuant to the terms of a Loan Agreement, dated as of December 1, 2003 (the "Loan Agreement"), between the City and the Borrower; and WHEREAS, the payment of the principal of, premium, if any, and interest on the Revenue Note will be secured by: (i) the revenues derived from the Loan Agreement to be assigned to the Lender pursuant to the terms of a Pledge Agreement, dated as of December 1, 2003 (the "Pledge Agreement"), from the City to the Lender; (ii) a Mortgage, Security Agreement, Fixture Financing Statement and Assignment of Leases and Rents, dated as of December 1, 2002, as thereafter Amended and Restated on March 26, 2003, as amended by an amendment to be dated as of December 12, 2003 (as so amended, the "Mortgage"), executed by the Borrower, as mortgagor, in favor of the Lender, as mortgagee; and (iii) such other security as may be required from the Borrower by the Lender. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF RICHFIELD, MINNESOTA, THAT: 1. The City acknowledges, finds, determines, and declares that the issuance of the Revenue Note is authorized by the Act and is consistent with the purposes of the Act and that the issuance of the Note and the other actions of the City under the Loan Agreement and this resolution constitute a public purpose and are in the best interests of the City. The City also hereby finds, determines, and declares that the refunding of outstanding indebtedness of the Borrower previously incurred to finance the acquisition and betterment of the Facility is necessary for the purposes of Section 469.155, Subd. 4, of the Act. 2. For the purposes set forth above, there is hereby authorized the issuance, sale and delivery of the Note in the principal amount not to exceed $1,460,000. The Note shall bear interest, shall be numbered, shall be dated, shall mature, shall be subject to redemption prior to maturity, shall be in such form, and shall have such other terms, details, and provisions as are prescribed in the form of Revenue Note now on file with the City and in the form of the Loan Agreement now on file with the City. The City hereby authorizes the Revenue Note to be issued as a "tax-exempt bond" the. interest on which is not includable in gross income for federal and State of Minnesota income tax purposes. All of the provisions of the Revenue Note, when executed as authorized in this resolution, shall be deemed to be a part of this resolution as fully and to the same extent as if incorporated verbatim herein and shall be in full force and effect from the date of execution and delivery thereof. The Revenue Note shall be substantially in the form on file with the City, which is hereby approved, with such necessary and appropriate variations, omissions and insertions (including changes to the principal amount of the Revenue Note, the determination of the initial interest rate on the Note, and changes to the terms of redemption of the Note) as the Mayor and City Manager of the City (the "Mayor" and "City Manager," respectively), in their discretion shall determine. The execution of the Revenue Note with the manual or facsimile signatures of the Mayor and the City Manager and the delivery of the Revenue Note by the City shall be conclusive evidence of such determination. 3. The Revenue Note shall not be a general or moral obligation of the City, but shall be a special, limited obligation of the. City payable by the City solely from the 2 revenues derived by the City from the Loan Agreement, assigned to the Lender pursuant to the Pledge Agreement, and from other security provided by the Borrower including the Mortgage. 4. The City hereby authorizes and directs the Mayor and the City Manager to execute and deliver the Loan Agreement and the Pledge Agreement in the forms now on file with the City. All of the provisions of the Loan Agreement and the Pledge Agreement when executed as authorized in this resolution shall be deemed to be a part of this resolution as fully and to the same extent as if incorporated verbatim in this resolution and shall be in full force and effect from the date of execution and delivery thereof. The Loan Agreement and the Pledge Agreement shall be substantially in the forms now on file with the City, which are hereby approved, with such necessary and appropriate variations, omissions and insertions as the Mayor and the City Manager in their discretion shall determine. The execution of the Loan Agreement and the Pledge Agreement with the manual or facsimile signatures of the Mayor and the City Manager and the delivery of the Loan Agreement and the Pledge Agreement by the City shall be conclusive evidence of such determination. 5. The Revenue Note shall be a revenue obligation of the City the proceeds of which shall be disbursed pursuant to the Loan Agreement, and the principal, premium, and interest on the Revenue Note shall be payable solely from the proceeds of the Revenue Note, the revenues derived from the Loan Agreement, and the other sources set forth in the Loan Agreement. 6. The Mayor and the City Manager are hereby authorized to execute and deliver, on behalf of the City, such other instruments, certificates, and documents as are necessary or appropriate in connection with the issuance, sale, and delivery of the Note, including the City Tax Certificate, the Information Return for Tax-Exempt Private Activity Bond Issues, Form 8038, and all other instruments, certificates, and documents which are requested by the .Borrower or the Lender to be executed and delivered by the City in connection with the issuance, sale, and delivery of the Revenue Note and which Kennedy & Graven, Chartered, as bond counsel or the City Attorney, deems necessary or appropriate. The City hereby authorizes Kennedy & Graven, Chartered, as bond counsel of the City, to prepare, execute, and deliver its approving legal opinion with respect to the Revenue Note. 7. All covenants, stipulations, obligations, and agreements of the City contained in this resolution and the aforementioned documents shall be deemed to be the covenants, stipulations, obligations, and agreements of the City to the. full extent authorized or permitted by law, and all such covenants, stipulations, obligations, and agreements shall be binding upon the City. Except as otherwise provided in this resolution, all rights, powers and privileges conferred and duties and liabilities imposed upon the City or the City Council of the City by the provisions of this resolution or of the aforementioned documents shall be exercised or performed by the City or by such members of the City Council, or such officers, board, body or agency thereof as may be required or authorized by law to exercise such powers and to perform such duties. 3 No covenant, stipulation, obligation or agreement contained in this resolution or contained in the aforementioned documents shall be deemed to be a covenant, stipulation, obligation or agreement of any member of the City Council of the City, or any officer, agent or employee of the City in that person's individual capacity, and neither the City Council nor any officer or employee of the City executing the Revenue Note shall be liable personally on the Revenue Note or be subject to any personal liability or accountability by reason of the issuance thereof. No provision, covenant or agreement contained in the aforementioned documents, the Revenue Note or in any other document relating to the Revenue Note, and no obligation therein or herein imposed upon the City or the breach thereof, shall constitute or give rise to any pecuniary liability of the City or any charge upon its general credit or taxing powers. In making the agreements, provisions, covenants and representations set forth in such documents, the City has not obligated itself to pay or remit any funds or revenues, other than funds and revenues derived from the Loan Agreement which are to be applied to the payment of the Note, as provided therein and in the Loan Agreement. 8. Except as otherwise expressly provided in this resolution, nothing in this resolution or in the aforementioned documents .expressed or implied, is intended or shall be construed to confer upon any person or firm, other than the City, the Borrower, and the Lender or any other holder of the Revenue Note issued under the provisions of this resolution, any right, remedy or claim, legal or equitable, under and by reason of this resolution or any provisions hereof; this resolution, the aforementioned documents and all of their provisions being intended to be and being for the sole and exclusive benefit of the City, the Borrower, the Lender, and any other holder from time to time of the Revenue Note issued under the provisions of this resolution. 9. In case any one or more of the provisions of this resolution, other than the provisions contained in Section 3 of this resolution, or of the aforementioned documents, or of the Revenue Note issued under this Resolution shall for any reason be held to be illegal or invalid, such illegality or invalidity shall not affect any other provision of this resolution, or of the aforementioned documents, or of the Revenue Note, but this resolution, the aforementioned documents, and the Revenue Note shall be construed and endorsed as if such illegal or invalid provisions had not been contained therein. 10. The Revenue Note, when executed and delivered, shall contain a recital that it is issued pursuant to the Act, and such recital shall be conclusive evidence of the validity of the Revenue Note and the regularity of the issuance thereof, and that all acts, conditions, and things required by the laws of the State of Minnesota relating to the adoption of this resolution, to the issuance of the Revenue Note, and to the execution of the aforementioned documents to happen, exist and be performed precedent to the execution of .the aforementioned documents have happened, exist and have been performed as so required by law. 4 11. The officers of the City, Kennedy & Graven, Chartered as bond counsel of the City and other attorneys, and other agents or employees of the City are hereby authorized to do all acts and things required of them by or in connection with this resolution, the aforementioned documents, and the Revenue Note for the full, punctual and complete performance of all the terms, covenants and agreements contained in the Revenue Note, the aforementioned documents and this resolution. In the event that for any reason the Mayor is unable to carry out the execution of any of the documents or other acts provided in this resolution, any person delegated the authority to execute documents in the absence or incapacity of the Mayor is hereby authorized to act in the capacity of the Mayor and undertake such execution or acts on behalf of the City with full force and effect, which execution or acts shall be valid and binding on the City. If for any reason the City Manager is unable to execute and deliver the documents referred to in this resolution, such documents may be executed by any person delegated the authority to execute documents in the absence or incapacity of the City Manager, with the same force and effect as if such documents were executed and delivered by the City Manager. 12. The Borrower will pay the administrative fees of the City as set forth in the Loan Agreement and pay, or upon demand, reimburse the City for payment of, any and all costs and expenses paid or incurred by the City in connection with the Project and the issuance of the Revenue Note, whether or not the Revenue Note is issued. 13. The City hereby designates the Revenue Note as a "qualified tax-exempt obligation" for purposes of Section 265(b)(3) of the Internal Revenue Code of 1986; as amended (the "Code"), and represents that the City does not reasonably anticipate that the City will issue in calendar year 2003 more than $10,000,000 of bonds or other tax- exempt obligations (excluding "private activity bonds" other than "qualified 501(c)(3) bonds," as such terms are defined in the Code, and excluding certain refunding obligations, that are not included in the $10,000,000 limitation set forth in Section 265(b)(3)(C)(i) of the Code). 14. This resolution shall be in full force and effect from and after its passage. Adopted by the City of Richfield, Minnesota, this 25th day of November, 2003. Martin J. Kirsch, Mayor Attest: Nancy Gibbs, City Clerk First Draft -- Thursday, November 20, 2003 UNITED STATES OF AMERICA STATE OF MINNESOTA COUNTY OF HENNEPIN City of Richfield, Minnesota Educational Facilities Revenue Note (Academy of Holy Angels Project) Series 2003 R-1 $1,460,000 The City of Richfield, Minnesota, a municipal corporation and political subdivision of the State of Minnesota (the "City"), hereby promises to pay to Wells Fargo Bank, National Association, a national banking association, or its successors or registered assigns (the "Lender"), solely from the source and in the manner hereinafter provided, the principal sum of One Million Four Hundred Sixty Thousand Dollars ($1,460,000), or so much thereof as may have been advanced to or for the benefit of the City and remains unpaid from time to time (the "Principal Balance"), with interest thereon as set forth in Paragraph 2 below from December 12, 2003 (the "Date of Issue"), until January 1, 2024 (the "Maturity Date"), or until earlier paid or otherwise discharged, in any coin or currency which at the time or times of payment is legal tender for the payment of public or private debts in the United States of America, in accordance with the terms hereinafter set forth. 1. This Educational Facilities Revenue Note (Academy of Holy Angels Project), Series 2003 (the "Note") is issued by the City pursuant to authority conferred by Minnesota Statutes, Sections 469.152 to 469.1651, as amended (the "Act") and Resolution No. , adopted by the City Council of the City on November 25, 2003 (the "Resolution"), to provide funds for (i) a project, as defined in Section 469.152, subdivision 2(b) of the Act, consisting of the renovation and equipping of, and the construction of additions to the non-religious portions of a school for grades nine through twelve known as Academy of Holy Angels High School, located at 6600 Nicollet Avenue South in the City (the "Facility"), owned and operated by the Academy of Holy Angels, a Minnesota nonprofit corporation (the "Borrower"), and (ii) pursuant to Section 469.155, subdivision 4 of the Act, the refinancing of certain existing indebtedness with respect to the Facility. Proceeds derived from the sale of the Note are to be loaned by the City to the Borrower pursuant to the terms of a Loan Agreement, dated December 1, 2003 (the "Loan Agreement"), between .the City and the Borrower, and pursuant to the terms of a Construction and Term Loan Agreement, dated December 12, 2003 (the "Bank Loan Agreement"), between the Borrower and the Lender. The interests of the City in the Loan Agreement have been assigned to the Lender (except for certain rights to the payment of fees and expenses and rights to indemnification) pursuant to the terms of a Pledge Agreement, dated as of December 1, 2003 (the "Pledge Agreement"), between the City and the Lender. 2. This Note shall bear interest at a variable rate equal to sixty-seven percent (67%) of the sum of the daily LIBOR plus 2.00 percent (the "Daily Rate") from-the Date of Issue to the Maturity Date. Interest shall accrue and be calculated on the basis of actual days elapsed in a year of 360 days. "LIBOR" has the meaning given to the term "USD LIBOR-BBA" in the 1992 ISDA U.S. Municipal Counterparty Definitions, as published by the International Swap and Derivatives Associations, Inc. The interest rate on this Note shall be adjusted on each date that LIBOR is adjusted. The Borrower may, upon written notice to the City and the Lender, elect to have interest accrue on this Note at a variable rate equal to sixty-seven percent (67%) of the sum of the thirty-day LIBOR plus 2.00 percent (the "Monthly Rate"). The Borrower may convert the variable interest rate on this Note to the Daily Rate or the Monthly Rate as set forth herein on any date or dates elected by the Borrower. Interest shall accrue at such rates from the date of receipt of such notice by the Lender. 3. Interest shall be payable on this Note on February 1, 2004, and on the first day of each month thereafter until the earlier of the Maturity Date or the payment in full of all principal of this Note. Subject to the terms of paragraph 8 hereof, and subject to prepayment adjustments that may be made pursuant to Section 5.1 of the Loan Agreement, from the first day of the month following the month in which the Completion Date (as hereinafter defined) occurs, the principal of this Note shall be payable in 228 equal monthly installments in the amount of $ The "Completion Date" is the earlier of (i) the date of substantial completion of the Project, as determined in accordance with the terms of the Loan Agreement; or (ii) the first anniversary of the Date of Issue. The Principal Balance plus accrued and unpaid interest, if any, shall be due and payable in full on the Maturity Date. Payments shall be applied first to interest due on the Principal Balance and thereafter to reduction of the Principal Balance. 4. If the Borrower fails to provide financial statements or other financial information or documentation as required by the Loan Agreement and such failure continues after ten (10) days written notice thereof from the Lender to the Borrower, then the Lender shall have the option, upon prior written notice to the Borrower, of increasing the rate of interest due on this Note for the balance of the term by one-half percent (.5%) per annum (which increase shall be in addition to any other increase as specified herein) and declaring such failure to provide financial statements or other financial information or documentation an Event of Default (as defined in the Loan Agreement). 5. As required by the Loan Agreement, until such time as this Note is fully paid and so long as Wells Fargo Bank, National Association is the Lender, the Borrower is required by the Loan Agreement to maintain the primary depository accounts of the Borrower with the Lender or an affiliate thereof. If the Borrower fails to so maintain such primary depository accounts with the Lender or an affiliate of the Lender as required by the Loan Agreement, then the Lender shall have the option, upon prior written notice to the Borrower, of increasing the rate of interest on this Note by an additional one-half percent (.5%) per annum for the balance of the term of this Note (which increase shall be in addition to any other increase as specified herein) and/or declaring such failure to constitute an Event of Default. 2 6. Upon a Determination of Taxability (as defined in the Loan Agreement), the - interest rate on this Note shall be increased by an additional two percent (2.00%) per annum from and after the Date of Taxability (as defined in the Loan Agreement). Any accrued and unpaid interest as a result of such Determination of Taxability shall be paid to the Lender within thirty (30) days of the Determination of Taxability. 7. Principal and interest and premium or service charge, if any, due hereunder shall be payable at the principal office of the Lender, or at such other place as the Lender may designate in writing. If any installment of principal or interest on this Note is not paid within ten (10) days of the due date thereof, an additional late charge shall be immediately due and payable in an amount equal to five percent (5%) of the amount of the installment of principal, interest, premium, and service charge then due and remaining unpaid. 8. This Note is subject to mandatory purchase by the Borrower from the Lender on December 1, 2012 (the "Mandatory Purchase Date"). On the Mandatory Purchase Date, the Borrower shall purchase this Note for a purchase price equal to the then outstanding Principal Balance, plus all accrued and unpaid interest, without premium. 9. This Note shall be prepaid, in whole or in part, from the proceeds of any loan prepayment made by the Borrower pursuant to Section 5.1 of the Loan Agreement. Under the terms of the Loan Agreement, the Borrower may prepay the Loan (as defined in the Loan Agreement), at any time in whole or in part, without penalty (except that no prepayment maybe made during any period in which the Monthly Rate is in effect). Notice of any such prepayment of this Note shall be given to the Lender by first-class mail, addressed to the Lender at its registered address, not less than thirty (30) days prior to the date fixed for prepayment. In the event of a prepayment of this Note, the Lender shall apply any such prepayment first against accrued interest on the Principal Balance and second against the Principal Balance of this Note. At the date fixed for prepayment, funds shall be paid to the Lender at its registered address. 10. This Note is secured by the Pledge Agreement and is further secured by a Mortgage and Assignment of Leases and Rents and Security Agreement and Fixture Financing Statement, dated December 30, 2002, as amended by an amendment dated December _, 2003 (as so amended, the "Mortgage"), executed by the Borrower, as mortgagor, in favor of the Lender, as mortgagee. The disbursement of the proceeds of this Note is subject to the terms and conditions of the Loan Agreement and a Disbursing Agreement, dated as of December 30, 2003 (the "Disbursing Agreement"), between the Lender, the Borrower and Commonwealth Land Title Insurance Company. 11. The City, for itself, its successors and assigns, hereby waives demand, presentment, protest and notice of dishonor. To the extent permitted by the Act and other applicable law, whether or not as a result thereof the interest on this Note becomes includable in gross income for federal income tax purposes or becomes includable in net taxable income for State of Minnesota income tax purposes, the Lender may, without notice to or consent of any party liable hereon or thereon and without releasing any such party from such liability: (i) extend the date for the payment of any principal, premium, service charge, or interest with respect to this Note; or (ii) release any property or any portion of any property subject to the 3 Mortgage, the Pledge Agreement, or any other security document. In no event, however, may the Maturity Date of this Note be extended beyond thirty (30) years from the Date of Issue. 12. Upon the occurrence of an Event of Default, as defined in the Loan Agreement, the Bank Loan Agreement, or the Mortgage, the Lender may declare the Principal Balance and accrued interest on the Note to be immediately due and payable. In addition, during any period that an Event of Default exists, the Principal Balance shall accrue interest at a rate equal to two percent (2%) per annum above the rate at which interest would otherwise accrue on this Note. 13. As provided in the Resolution and subject to certain limitations set forth therein, this Note is only transferable upon the books of the City at the office of the City, by the Lender in person or by its agent duly authorized in writing, at the Lender's expense, upon surrender hereof together with a written instrument of transfer satisfactory to the City Manager, duly executed by the Lender or its duly authorized agent. Upon such transfer the City Manager will note the date of registration and the name and address of the new registered owner in the registration blank appearing below. The City may deem and treat the person in whose name the Note is last registered upon the books of the City with such registration noted on the Note, as the absolute owner hereof, whether or not overdue, for the purpose of receiving payment, or on the account, of the Principal Balance, redemption price or interest and for all other purposes, and all such payments so made to the Lender or upon the Lender's order shall be valid and effective to satisfy and discharge the liability upon the Note to the extent of the sum or sums so paid, and the City shall not be affected by any notice to the contrary. 14. All of the agreements, .conditions, covenants, provisions and stipulations contained in the Resolution, the Loan Agreement, the Bank Loan Agreement, the Mortgage, and the Pledge Agreement are hereby made a part of .this Note to the same extent and with the same force and effect as if they were fully set forth herein. 15. This Note and interest thereon and any service charge or premium, if any, due hereunder are payable solely from the revenues and proceeds derived from the Loan Agreement, the Bank Loan Agreement, the Mortgage, and the Pledge Agreement and do not constitute a debt of the City within the meaning of any constitutional or statutory limitation, are not payable from or a charge upon any funds other than the revenues and proceeds pledged to the payment thereof, and do not give rise to a pecuniary liability of the City or any of its officers, agents or employees, and no holder of this Note shall ever have the right to compel any exercise of the taxing power of the City to pay this Note or the interest thereon, or to enforce payment thereof against any property of the City, and this Note does not constitute a charge, lien or encumbrance, legal or equitable, upon any property of the City, and the agreement of the City to perform or cause the performance of the covenants and other provisions herein referred to shall be subject at all times to the availability of revenues or other funds furnished for such purpose in accordance with the Loan Agreement, sufficient to pay all costs of such performance or the enforcement thereof. 16. If an Event of Default (as that term is defined in the Bank Loan Agreement, the Mortgage, or the Loan Agreement) shall occur, then the Lender shall have the right and option to declare, upon ten (10) days written notice, the Principal Balance and accrued interest thereon, immediately due and payable, whereupon the same, plus any premiums or service charges, shall 4 be due and payable, but solely from sums made available under the Loan Agreement, the Bank Loan Agreement, the Mortgage, and the Pledge Agreement. Failure to exercise such option at any time shall not constitute a waiver of the right to exercise the same at any subsequent time. 17. The remedies of the Lender, as provided herein and in the Loan Agreement, the Bank Loan Agreement, the Mortgage, and the Pledge Agreement, are not exclusive and shall be cumulative and concurrent and may be pursued singly, successively or together, at the sole discretion of the Lender, and maybe exercised as often as occasion therefor shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof. 18. The Lender shall not be deemed, by any act of omission or commission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the Lender and, then only to the extent specifically set forth in the writing. A waiver with reference to one event shall not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event. 19. This Note has been issued without registration under state or federal or other securities laws, pursuant to an exemption for such issuance; and accordingly this Note may not be assigned or transferred, in whole or part, nor may a participation interest in this Note be given pursuant to any participation agreement, except in accordance with an applicable exemption from such registration requirements. The City acknowledges that the Lender may enter into a participation agreement with one or more sophisticated investors. 20. The City has designated this Note as a "qualified tax exempt obligation" pursuant to Section 265(b)(3) of the Internal Revenue Code of 1986, as amended. It is hereby certified and recited that all conditions, acts, and things required to exist, to happen, and to be performed precedent to or in the issuance of this Note do exist, have happened, and have been performed in regular and due form as required by law. (The remainder of this page is intentionally left blank.) 5 In witness whereof, the City has caused this Note to be duly executed in its name by the - manual or facsimile signatures of the Mayor and City Manager, the corporate seal having been intentionally omitted as permitted bylaw. CITY OF RICHFIELD, MINNESOTA By Its Mayor By Its City Manager NOTE REGISTER The ownership of the unpaid Principal Balance of this Note and the interest accruing thereon is registered on the books of the City of Richfield, Minnesota in the name of the holder last noted below. Date of Name and Address Signature of Registration Registered Owner City Manager December 12, 2002 Wells Fargo Bank, National Association MAC N9117-031 430 North Wabasha Street, Suite 302 Saint Paul, Minnesota 55101 RC145-513 (BW~ 240453v1 NR-1 First Draft Thursday, November 20, 2003 LOAN AGREEMENT between CITY OF RICHFIELD, MINNESOTA and ACADEMY OF HOLY ANGELS Dated as of December 1, 2003 Except for certain reserved rights, the interest of the City of Richfield, Minnesota, in this Loan Agreement has been pledged and assigned to Wells Fargo Bank, National Association, pursuant to a Pledge Agreement of even date herewith. This instrument drafted by: Kennedy & Graven, Chartered (BWJ) 470 Pillsbury Center 200 South Sixth Street Minneapolis, Minnesota 55402-1458 TABLE OF CONTENTS Paee ARTICLE 1 DEFINITIONS, EXHIBITS AND RULES OF INTERPRETATION ................................1 Section 1.1 Definitions ....................................................................................................................1 Section 1.2 Rules of Interpretation ..................................................................................................3 ARTICLE 2 REPRESENTATIONS ........................................................................................................5 Section 2.1 Representations by the City ..........................................................................................5 Section 2.2 Representations by the Borrower ..................................................................................6 ARTICLE 3 THE LOAN .........................................................................................................................9 Section 3.1 Amount and Source of Loan .........................................................................................9 Section 3.2 Documents Required Prior to Disbursement of the Loan .............................................9 Section 3.3 Disbursement of the Loan .............................................................................................9 Section 3.4 Repayment ....................................................................................................................9 Section 3.5 Borrower's Obligations Unconditional .........................................................................9 Section 3.6 City's Administrative Fee ...........................................................................................10 ARTICLE 4 BORROWER'S COVENANTS ....... 11 Section 4 1 ................................................................................ Indemnit . y ...............:........................................................................................ ....... ..... 11 Section 4.2 Continuing Existence and Qualification ................................... . 11 Section 4.3 .......................... . ...... Reports to Governmental Agencies ............................................................................ 11 Section 4.4 Security for the Loan .................................................................................................. 12 Section 4.5 Preservation of Tax Exemption .................................................... 12 Section 4 6 .............................. Lease or Sale of P j t . ro ec .............................................................................................. 14 Section 4.7 Project Operation and Maintenance Expenses ....................................................:....... 14 Section 4.8 Notification of Changes .............................................................................................. 15 Section 4.9 Additional Covenants ................................................................................................. 15 ARTICLE 5 PREPAYMENT OF LOAN ..............................................................................................19 Section 5.1 Prepayment at Option of Borrower .............................................................................19 ARTICLE 6 EVENTS OF DEFAULT AND REMEDIES ....................................................................20 Section 6.1 Events of Default ........................................................................................................21 Section 6.2 Remedies ....................................................................................................................21 Section 6.3 Disposition of Funds ...................................................................................................21 Section 6.4 Manner of Exercise .....................................................................................................21 Section 6.5 Attorneys' Fees and Expenses ....................................................................................21 Section 6.6 Effect of Waiver .........................................................................................................21 ARTICLE 7 GENERAL ........................................................................................................................22 Section 7.1 Notices ........................................................................................................................22 Section 7.2 Binding Effect .............................................................................................................22 Section 7.3 Severability .................................................................................................................22 Section 7.4 Amendments, Changes and Modifications .................................................................22 Section 7.5 Execution Counterparts ..............................................................................................22 Section 7.6 Limitation of City's Liability ......................................................................................23 Section 7.7 City's Attorneys Fees and Costs .................................................. ............................... 23 Section 7.8 Release ........................................................................................................................23 '~ i Section 7.9 Section 7.10 Section 7.11 Section 7.12 Section 7.13. SIGNATURES ..... Assignment by City and Survivorship of Obligations ................................................23 Required Approvals ....................................................................................................23 Termination Upon Retirement of Note .......................................................................24 Lender's Attorneys' Fees and Costs ........................................................................... 24 Bank/Lender Documents to Control ...........................................................................24 ..................................................................................................................................... S-1 n LOAN AGREEMENT This Loan Agreement, dated as of December 1, 2003 (this "Agreement"), is made and entered into between the City of Richfield, Minnesota, a municipal corporation and political subdivision of the State of Minnesota (the "City"), and Academy of Holy Angels, a Minnesota nonprofit corporation (the "Borrower"). The City and the Borrower each in consideration of the representations, covenants and agreements of the other as set forth in this Agreement, mutually represent, covenant and agree as follows: ARTICLE 1 DEFINITIONS, EXHIBITS AND RULES OF INTERPRETATION Section 1.1. Definitions. In this Agreement the following terms have the following respective meanings unless the context of this Agreement clearly requires otherwise: Act: Minnesota Statutes, Sections 469.152 to 469.1651, as amended. Agreement: this Loan Agreement between the City and the Borrower as the same may from time to time be amended or supplemented as in this Agreement provided. Bank/Lender Documents: the Bank Loan Agreement, the Mortgage, and any other agreements between the Borrower and the Lender pursuant to or in connection with the Bank Loan Agreement. Bank. Loan Agreement: the Construction and Term Loan Agreement, dated December 12, 2003, between the Lender and the Borrower. Bond Counsel: the firm of Kennedy & Graven, Chartered, Minneapolis, Minnesota (any opinion of Bond Counsel shall be a written opinion signed by Bond Counsel). Borrower: Academy of Holy Angels, a Minnesota nonprofit corporation, its successors and assigns, and any surviving, resulting or transferee business entity which may assume its obligations in accordance with the provisions of this Agreement. Cam: the City of Richfield, Minnesota, a home rule city, municipal corporation and political subdivision of the State of Minnesota, its successors and assigns. Closing: December 12, 2003, the date of physical delivery of the Note to the Lender. Code: the Internal Revenue Code of 1986, as amended, and the temporary, final or proposed regulations promulgated thereunder. Completion Date: the earlier of the date on which the construction is substantially complete, as evidenced by a certificate of the Borrower, or December 12, 2004 (provided that if the Lender shall extend any such date in writing, then the Completion Date shall be such later date). Counsel: an attorney designated by or acceptable to the Lender, duly admitted to practice law before the highest court of any state; an attorney for the Borrower or the City may be eligible for appointment as Counsel. Date of Taxability: shall have the meaning ascribed to it in Section 4.5(2) of this Agreement. Determination of Taxability: shall have the meaning ascribed to it in Section 4.5(2) of this Agreement. Disbursing Agent: Commonwealth Land Title Insurance Company, its successors and assigns. Disbursing Agreement: the Disbursing Agreement, dated as of December 12, 2003, by and between the Lender, the Borrower, and the Disbursing Agent, relating to the disbursement of the proceeds of the Note. Equi ment: any and all machinery, equipment, furniture and other tangible personal property purchased or to be purchased by the Borrower with the proceeds of the Loan and all replacements and substitutions therefore. Event of Default: any of the events described in Section 6.1 of this Agreement. Exempt Organization: an organization that is exempt from federal income taxation pursuant. to Section 501(a) of the Code as a result of the application of Section 501(c)(3) of the Code. Existing Debt: indebtedness of the Borrower existing as of November 26, 2002, incurred with respect to improvements to the Project. Issuance Ex ep rases: shall mean any and all costs and expenses relating to the issuance, sale, and delivery of the Note, including, but not limited to, any fees of the Lender, all fees and expenses of legal. counsel, financial consultants, feasibility consultants and accountants, any fee to be paid to the City, the cost of preparation and printing of this Agreement, the Mortgage, the Resolution, the Pledge Agreement, the Note, and all other related documents, and all other expenses relating to the issuance, sale and delivery of the Note and any .other costs which are treated as "issuance costs" within the meaning of Section 147(g) of the Code. Land: the real property and any other easements and rights described in Exhibit A to the Mortgage. Lender: Wells Fargo Bank, National Association, a national banking association, its successors and assigns. Loan: the loan of Note proceeds from the City to the Borrower described in Section 3.1 of this Agreement. Mortea~e: the Mortgage and Assignment of Rents and Security Agreement and Fixture Financing Statement, dated as of December 30, 2002, executed by Borrower, as mortgagor, in favor of Lender, as mortgagee, securing the Note, as amended by an amendment dated as of December _, 2003, and any additional amendments thereto and any other mortgage that Borrower may in the future provide to Lender as security for repayment of the Loan. 2 Note: the Educational Facilities Revenue Note (Academy of Holy Angels Project), Series 2003, issued by the City in the original aggregate principal amount of $1,460,000. Optional Tender: the right of the Lender, as set forth in the Note, to tender the Note to the Borrower at certain times pursuant to certain notice requirements for mandatory purchase by the Borrower at a purchase price equal to the Principal Balance thereof, together with accrued and unpaid interest. Pledge Agreement: the Pledge Agreement, dated as of December 1, 2003, between the City and the Lender pledging and assigning the City's interest in this Agreement to the Lender to the extent provided therein. Principal Balance: so much of the principal sum on the Note as from time to time remains unpaid. Project: the financing and refinancing of the following: (i) the renovation of, and constructing additions to, the Academy of Holy Angels High School located at 6600 Nicollet Avenue South in the City; (ii) the acquisition and installation of Equipment therein; and (iii) the refunding of Existing Debt. The improvements included in the Project specifically do not include any chapel or facilities that will be primarily used for religious instruction or worship. The sectarian facilities, if any, of the Borrower have been financed with other funds available to the Borrower and not from Note proceeds. Project Costs: all direct costs authorized by the Act and paid or incurred by the Borrower, to acquire, construct, and equip the Project, including, but not limited to, interest on the Note during construction, architectural fees, engineering fees, contractor's fees and all costs of labor, material and . services. Resolution: Resolution No. of the City, adopted November 25, 2003, authorizing the issuance of the Note. together with any supplement or amendment thereto. Series 2002 Note: the City's Educational Facilities Revenue Note (Academy of Holy Angels Project), Series 2002, in the original aggregate principal amount of $8,540,000 and issued on December 30, 2002. State: the State of Minnesota. Treasur~Regulations: all proposed, temporary or permanent federal income tax regulations then in effect and applicable. Section 1.2. Rules of Interpretation. (1) This Agreement shall be interpreted in accordance with and governed by the laws of the State of Minnesota. (2) The words "hereof," "herein," "in this Agreement" and "of this Agreement" and words of similar import, without reference to any particular section or subdivision, refer to this Agreement as a whole rather than to any particular section or subdivision of this Agreement. (3) References in this Agreement to any particular section or subdivision of this Agreement are to the section or subdivision of this instrument as originally executed. (4) Where the Borrower is permitted or required to do or accomplish any act or thing hereunder, the City or the Lender may cause the same to be done or accomplished with the same force and effect as if done or accomplished by the Borrower. (5) The Table of Contents and titles of articles and sections in this Agreement are for convenience only and are not a part of this Agreement. (6) Unless the context of this Agreement clearly requires otherwise, the singular shall include the plural and vice versa and the masculine shall include the feminine and vice versa. (7) Articles, sections, subsections and clauses mentioned by number only are those so numbered which are contained in this Agreement. (8) References to the Note as "tax exempt" or to the "tax exempt status of the Note" are to the exclusion of interest on the Note from gross income pursuant to Section 103(a) of the Code. (The remainder of this page is intentionally left blank.) 4 ARTICLE 2 REPRESENTATIONS Section 2.1. Representations by the City. The City makes the following representations as the basis for its covenants in this Agreement: (1) The City is a municipal corporation duly organized under its Charter and the Constitution and the laws of the State of Minnesota and is authorized to issue the Note to finance the Project Costs pursuant to the Act. (2) Based solely on representations of the Borrower, the City's purpose in issuing the Note and financing and refinancing the Project is, and the effect thereof will be, to promote the public purposes set forth in the Act. (3) The Project has been approved by the Commissioner of the Trade and Economic Development of the State of Minnesota, or the Commissioner's duly delegated designee, as tending to further the purposes and policies of the Act. (4) The issuance and sale of the Note, the execution and delivery of this Agreement and the Pledge Agreement, and the performance of all covenants and agreements of the City contained in this Agreement, the Note, and the Pledge Agreement, and of all other acts and things required under the Constitution and laws of the State of Minnesota to make this Agreement, the Pledge Agreement, and Note the valid and binding obligations of the City in accordance with their terms, are authorized by the Act and the Charter of the City and have been duly authorized by the Resolution of the City. (5) Pursuant to the Resolution, the City has authorized and directed the Lender to disburse the proceeds of the Note directly to the Borrower and such other parties as may be entitled to payment for Project Costs, upon receipt of such supporting documentation as the Lender may deem reasonably necessary or as required by this Agreement. (6) This Agreement and the Note constitute a program investment within the meaning of Treasury Regulations Section 1.148-1 because it is part of a governmental program which: (i) involves. the origination or acquisition of purpose investments (as defined in applicable Treasury Regulations); (ii) at least ninety-five percent (95%) of the cost of the purpose investments acquired under the program represents one or more loans to an Exempt Organization; (iii) at least ninety-five percent (95%) of the receipts from the purpose investments are used to pay principal, interest or redemption prices on issues that financed the program, to pay or reimburse administrative costs of those issues or of the program, to pay or reimburse anticipated future losses directly related to the program, to finance additional purpose investments for the same general purposes of the program, or to redeem and retire governmental obligations at the next earliest possible date of redemption; (iv) the program documents prohibit any obligor on a purpose investment financed by the program or any related party to that obligor from purchasing bonds of an issue that finance the program in an amount related to the amount of the purpose investment acquired from that obligor; and (v) the City has not waived the right to treat the investment as a program investment. The yield on this Agreement includes certain fees payable by the Borrower as provided in this Agreement, but does not exceed the yield on the Note by more than one and one-half percentage points (1.5%). \ (7) The City previously issued its Educational Facilities Revenue Note (Academy of Holy ' Angels Project), Series 2002 (the "Series 2002 Note"), in the original aggregate principal amount of `' ~ $8,540,000 and issued by the City on December 30, 2002. The City loaned the proceeds derived from the Series 2002 Note to the Borrower pursuant to a Loan Agreement, dated as of December 1, 2003, between the City and the Borrower. Section 2.2. Representations by the Borrower. The Borrower makes the following representations as the basis for its covenants in this Agreement: (1) The Borrower is a Minnesota nonprofit corporation duly incorporated and in good standing under the laws of the State of Minnesota, is duly authorized to conduct its business in all states where its activities require such authorization, has power to enter into this Agreement and the Mortgage and to use the Project for the purpose set forth in this Agreement and by proper corporate action has authorized the execution and delivery of this Agreement and the Mortgage. (2) The Borrower is an Exempt Organization. The Borrower is not a "private foundation" as defined in Section 509(a) of the Code. Not more than five percent (5%) of the proceeds of the Note will be used, directly or indirectly, to finance or refinance property used in an unrelated trade or business of the Borrower determined by applying Section 513(c) of the Code or in the trade or business of any person other than an Exempt Organization. There is no action, proceeding or investigation pending or threatened by the Internal Revenue Service or authorities of the State of Minnesota which, if adversely determined, might result in a modification of the status of the Borrower as an Exempt Organization. (3) The execution and delivery of this. Agreement, the Bank Loan Agreement, and the Mortgage, the consummation of the transactions contemplated thereby, and the fulfillment of the terms and conditions thereof do not and will not conflict -with or result in a breach of any of the terms or conditions of the Borrower's articles of incorporation, its bylaws, any restriction or any agreement or instrument to which the Borrower is now a party or by which it is bound or to which any property of the Borrower is subject, and do not and will not constitute a default under any of the foregoing or a violation of any order, decree, statute, rule or regulation of any court or of any state or federal regulatory body. having jurisdiction over the Borrower or its properties, including the Project, and do not and will not result in the creation or imposition of any lien, charge or encumbrance of any nature upon any of-the- property or assets of the Borrower contrary to the terms of any instrument or agreement to which the Borrower is a party or by which it is bound. (4) The use of the Project as designed and proposed to be operated complies, in all material respects, with all presently applicable development, pollution control, water conservation and other laws, regulations, rules and ordinances of the federal government and the State of Minnesota and the respective agencies thereof and the political subdivisions in which the Project is located. The Borrower .has obtained, or will obtain in a timely manner, all necessary and material approvals of and licenses, permits, consents and franchises from federal, state, City, municipal. or other governmental authorities having jurisdiction over the Project to acquire, construct, install, and operate the Project and to enter into, execute and perform its obligations under this Agreement and the Mortgage; and no violation of any local ordinance, laws, regulation or requirement exists with respect to the Land. (5) The proceeds of the Note, together with any other equity funds and borrowed funds to be contributed to the Project by the Borrower or otherwise in accordance with this Agreement, will be sufficient to pay the cost of the Project in a manner suitable for its use, and all costs and expenses incidental thereto, and the proceeds of the Note will be used only for the purposes contemplated hereby and allowable under the Act. (6) As of the original date of this Agreement, comparable private financing for the Project was not found by the Borrower to be reasonably available, and the Project is economically more feasible with the availability of the financing authorized in this Agreement. 6 (7) The Borrower is not in the trade or business of selling properties such as the Project and is undertaking the Project for use by the Borrower in the activities for which the Borrower was determined to be an Exempt Organization. The Borrower has no intention now or in the foreseeable future to voluntarily sell, surrender or otherwise transfer, in whole or part, its interest in the Project. (8) There are no actions, suits, or proceedings pending or, to the knowledge of the Borrower, threatened against or affecting the Borrower or any property of the Borrower in any court or before any federal, state, municipal or other governmental agency, which, if decided adversely to the Borrower would have a material adverse effect upon the Borrower or upon the business or properties of the Borrower; and the Borrower is not in default with respect to any order of any court or governmental agency. (9) The Borrower is not in default in the payment of the principal of or interest on any indebtedness for borrowed money, including but not limited to the Series 2002 Note, nor in default under any instrument or agreement under and subject to which any indebtedness for borrowed money has been issued, including but not limited to the Series 2002 Note. (10) The Borrower has filed all federal and state income tax returns which, to the knowledge of the officers of the Borrower, are required to be filed and has paid all taxes shown on said returns and all assessments and governmental charges received by the Borrower to the extent that they have become due. (11) No public official of the City has either a direct or indirect financial interest in this Agreement nor will any public official either directly or indirectly benefit financially from this Agreement. (12) The Borrower has approved the terms and conditions of the Note. (13) The financial information supplied to the Lender. truly and completely. discloses the financial condition of the Borrower as of the date of such information, and there have been no material adverse changes in the financial condition of the Borrower subsequent to the date of the most recent financial statement supplied to Lender. (14) This Agreement, the Bank Loan Agreement, the Mortgage, and the documents and agreements relating to the foregoing, when executed and delivered by the Borrower, constitute legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with their respective terms (subject, as to enforceability, to limitations resulting from bankruptcy, insolvency, and other similar laws affecting creditors' rights generally). (15) No proceeds of the Note will be used to finance portions of the Project used for any religious purpose. (16) For so long as the Note is outstanding: (a) the Borrower shall not impose any qualifications related to religious beliefs on any of its teaching faculty or staff and shall not consider an applicant's religious beliefs when hiring teaching faculty or staff (except to the extent based on a bona fide occupational qualification); (b) the Borrower's core curriculum shall include instruction in subjects and in a manner generally consistent with the compulsory instruction report issued by the Minnesota Department of Children, Families and Learning; (c) the Borrower shall maintain a policy for the Project of open enrollment of students without regard to race, religion, color, sex or national or ethnic origin and a policy of hiring of faculty and staff without regard to race, religion, color, sex or national or ethnic origin; and (d) the Borrower may require students to attend but shall not require students to participate in religious services. (17) The Borrower agrees that the foregoing representations and warranties shall be continuing in nature and shall remain in full force and effect until such time as the Loan shall be paid in full. (18) The Borrower agrees that it received the proceeds of the Series 2002 Note and the Note is intended to be issued as a parity obligation with the Series 2002 Note. The Borrower represents that the Lender purchased the Series 2002 Note on its date of issuance and the Lender is the current owner of the Series 2002 Note. (The remainder of this page is intentionally left blank.) 8 ARTICLE 3 THE LOAN Section 3.1. Amount and Source of Loan. The City has authorized the issuance of the Note in the aggregate principal amount not to exceed $1,460,000, or such lesser amount as is determined prior to the initial issuance of the Note, to provide funds to the Borrower for its use in the acquisition, construction and equipping of the Project. The City agrees to lend the Borrower, upon the terms and conditions set forth in this Agreement, the proceeds received from the Note by causing such sums to be applied and disbursed in accordance with the provisions of this Agreement. Forthwith upon the execution and delivery of this Agreement and all other documents and instruments necessary to the transactions contemplated hereby and the recording and filing of such documents as may be required to be filed or recorded by the Lender or Bond Counsel, the City will execute the Note and cause it to be delivered to the Lender. Section 3.2. Documents Required Prior to Disbursement of the Loan. Prior to any advance of Note proceeds, the Borrower shall deliver to the Lender the following: (i) the Note; (ii) the Loan Agreement; (iii) the Pledge Agreement; (iv) the Bank Loan Agreement; (v) the Mortgage; and (vi) the opinion of Bond Counsel to the effect that the City has duly authorized the Note and that the interest thereon is exempt from federal income taxation. The advance of Note proceeds shall also be subject to other conditions acceptable to the Lender. Section 3.3. Disbursement of the Loan. Pursuant to this Agreement and the Act, the City has authorized the Borrower to provide directly for the acquisition, construction and equipping of the Project and payment of interest on the Note during construction in such manner as determined by the Borrower and hereby authorizes the Lender to advance the proceeds of the Note directly to the Borrower to be disbursed for the payment of Project Costs. The proceeds of the Loan may also be applied to the payment of outstanding indebtedness of the Borrower incurred to pay Project Costs. Advances of this Loan shall be made pursuant to draw requests as set forth in the Bank Loan Agreement and the Disbursing Agreement; provided, however, that each draw request for this Loan shall also contain the certification that all Project Costs to be paid or reimbursed from such advance are eligible costs under the Act and are not attributable to any portion of the Project used for religious purposes. The Completion Date for the Project shall be determined as set forth in the definition thereof in Section 1.1 of this Agreement. Section 3.4. Repa ent. Subject to the prepayment provisions set forth in the Note, the Borrower agrees to repay the Loan by making all payments of principal, interest and any premium, penalty or charge that are required to be made by the City under the Note at the times and in the amounts provided therein. In addition, the Borrower agrees to purchase the Note from the Lender on the Mandatory Purchase Date (as defined in the Note) at a purchase price equal to the Principal Balance (as defined in the Note) plus accrued to the Mandatory Purchase Date, without premium. All payments shall be made directly to the Lender at such office of the Lender as it shall designate from time to time for the account of the City. The Borrower represents and covenants that the source of payment of the Note is from revenues derived from the operation of the. Project and other amounts available to the Borrower. Section 3.5. Borrower's Obligations Unconditional. All payments required of the Borrower hereunder shall be paid without notice or demand and without setoff, counterclaim, abatement, deduction or defense. The Borrower will not suspend or discontinue any payments, and will perform and observe all of its other agreements in this Agreement, and, except as expressly permitted in this Agreement, will not terminate this Agreement for any cause, including but not limited to any acts or circumstances that may constitute failure of consideration, destruction or damage to the Project, eviction by paramount title, 9 commercial frustration of purpose, bankruptcy or insolvency of the City or the Lender, change in the tax or other laws or administrative rulings or actions of the United States of America or of the State of Minnesota or any political subdivision thereof, or failure of the City to perform and observe any agreement, whether express or implied, or any duty, liability or obligation arising out of or connected with this Agreement. The unconditional obligation of the Borrower to repay the Note is an obligation that is on parity with the obligation of the Borrower to repay the Series 2002 Note. Section 3.6. City's Administrative Fee. On the date of Closing and on each anniversary of the Closing, the Borrower shall pay to the City an administrative fee in an amount equal to one-eighth (1/8) of one percent of the Principal Balance of the Note as of each such date. (The remainder of this page is intentionally left blank.) 10 ARTICLE 4 BORROWER'S COVENANTS Section 4.1. Indemnity. The Borrower will, to the extent permitted by law, pay, and will protect, indemnify and save the City, its officers, agents and employees harmless from and against all liabilities, losses, damages, costs, expenses (including reasonable attorneys' fees and expenses), causes of action, suits, claims, demands and judgments of any nature arising from: (1) any injury to or death of any person or damage to property in or upon the Project or growing out of or connected with the use, non-use, condition or occupancy of the Project or a part thereof; (2) violation of any agreement or condition of this Agreement, except by the City or its assignee; (3) violation of any contract, agreement or restriction by the Borrower relating to the Project; (4) violation by Borrower of any law, ordinance or regulation affecting the Project or a part thereof or the ownership, occupancy or use thereof, or arising out of this Agreement, the Note or the transactions contemplated thereby, including any requirements imposed on the Lender as a financial institution or any disclosure or registration requirements imposed by any federal or state securities law; and (5) any statement or information relating to the expenditure of the proceeds of the Note contained in the non-arbitrage certificate or similar document furnished by the Borrower to the City which, at the time made, is misleading, untrue or incorrect in any material respect. Section 4.2. Continuing Existence and Qualification. Throughout the term of this Agreement the Borrower will remain duly qualified to do business as a nonprofit corporation in the State, and will continue to operate as an Exempt Organization, and will maintain its corporate existence, will not dissolve or otherwise dispose of all or substantially all of its assets, and will not consolidate with or merge into another corporation or other business entity or permit any other corporation or other business entity to consolidate with or merge into it unless the Lender has consented to such actions and: (1) the surviving, resulting or transferee. corporation, or other business entity, as the case may be, shall be a nonprofit corporation operating under the laws of the United States, any state or the District of Columbia, and an Exempt Organization (provided the Project will not constitute an unrelated trade or business within the meaning of Section 513(e) of the Code) or a governmental unit under Section 145 of the Code; (2) the surviving, resulting, or transferee corporation, or other business entity, as the case may be, if other than the Borrower, assumes in writing all of the obligations of the Borrower under this Agreement and the Mortgage and shall deliver that instrument to the Lender; and (3) the surviving, resulting or transferee corporation or other business entity, as the case may be, is duly qualified to do business in Minnesota. Every surviving, resulting or transferee corporation and other entity referred to in this Section 4.2 shall be bound by all of the covenants and agreements of the Borrower in this Agreement with respect to any further consolidation, merger, sale or transfer. Section 4.3. Reports to Governmental A encies. The Borrower will furnish to agencies of the State of Minnesota, such periodic reports or statements as are required under the Act, or as they may otherwise reasonably require of the City or the Borrower throughout the term of this Agreement in connection with the transaction contemplated in this Agreement. Copies of such reports will be provided j to the City and the Lender. 11 Section 4.4. Security for the Loan. As additional security for the Lender, and to induce the City to issue and deliver the Note, the Borrower agrees to execute and deliver the Mortgage and agrees to meet all its obligations under the Mortgage, which document shall remain in effect until all payments required hereunder have been made; and the Borrower will- cause to be recorded and filed the Mortgage, the Pledge Agreement, financing statements and such other documents requested by the Lender or Bond Counsel, in such places and in such manner as the Lender or Bond Counsel deems necessary or desirable to perfect or protect the security interest of the Lender in and to the Project and other collateral referred to in said documents. Section 4.5. Preservation of Tax Exemption. (1) The Borrower covenants and agrees that, in order to assure that the interest on the Note shall at all times be excludable from gross income for federal income tax purposes, the Borrower represents and covenants with the City and the Lender that it will comply with the applicable provisions of Section 103 and Sections 141 through 150 of the Code and the Borrower specifically represents, covenants, and agrees as follows: (a) The Project is and will continue to be owned and operated by the Borrower and no portion of the Project is managed by anyone other than the Borrower. (b) The Project will not be used by the Borrower in an unrelated trade or business, determined by the application of Section 513(a) of the Code. (c) No more than five percent (5%) of the net proceeds of the Note are to be used for any private business use as defined in Section 141(b)(6) of the Code. (d) The payment of the principal of, or interest on, no more than five percent (5%) of the net proceeds of the Note is (under the terms of the Note or any underlying arrangement) directly or indirectly (i) secured by any interest in (A) property used or to be used for a private business use, or (B) payments in respect of such property,' or (ii) to be derived from payments . (whether or not to the City) in respect of property, or borrowed money, used or to be used for a private business use. (e) The weighted average maturity of the Note will not exceed the estimated economic life of the Project by more than twenty percent (20%), all within the meaning of Section 147(b) of the Code. (f) While the Note remains outstanding, no portion of the proceeds of the Note will be used to provide any airplane, skybox or other private luxury box, any facility primarily used for gambling, or a store, the principal business of which is the sale of alcoholic beverages for consumption off premises. (g) Any Issuance Expenses financed by the Note shall not exceed two percent (2.00%) of the original aggregate principal amount of the Note. (h) The Borrower agrees it will not use the proceeds of the Note in such a manner. as to cause the Note to be an "arbitrage bond" within the meaning of Section 148 of the Code and applicable Treasury Regulations. Specifically, the Borrower shall: (i) maintain records identifying all "gross proceeds" and "replacement proceeds" (as defined in Section 148(f)(6)(B) of the Code attributable to the Note, the yield at which such gross proceeds are invested, any 12 arbitrage profit derived therefrom (earnings in excess of the yield on the Note) and any earnings derived from the investment of such arbitrage profit; (ii) make, or cause to be made as of the end of each fifth (5th) bond year, the annual determinations of the amount, if any, of excess arbitrage required to be paid to the United States (the "Rebate Amount"); (iii) pay, or cause to be paid, to the United States at least once every fifth (5th) bond year the amount, if any, which is required to. be paid to the United States, including the last installment which shall be made no later than sixty (60) days after the day on which the Note is paid in full; (iv) not invest, or permit to be invested, "gross proceeds" of the Note in any acquired nonpurpose obligations so as to deflect arbitrage otherwise payable to the United States as a "prohibited payment" to a third party; and (v) retain all records of the annual determination of the foregoing amounts until six (6) years after the Note has been fully paid. (i) The Borrower has not leased, sold, assigned, granted or conveyed and will not lease, sell, assign, grant or convey all or any portion of the Project, or any interest therein, or its fee simple interest in the Land to the United States or any agency or instrumentality thereof within the meaning of Section 149(b) of the Code. (j) In addition to the Note, no other obligations have been or will be issued by the City the interest on which is excludable from gross income for federal income tax purposes pursuant to Section 103 of the Code, which are sold at substantially the same time as the Note pursuant to a common plan of marketing and at substantially the same rate of interest as the Note and which are payable in whole or part by the Borrower or otherwise have with the Note any common or pooled security- for the payment of debt service thereon, or which are otherwise treated as the same "issue of obligations" as the Note, as described in Treasury Regulations Section 1.150-1(c)(1). (k) No Note proceeds shall be invested in investments which cause the Note to be federally guaranteed within the meaning of Section 149(b) of the Code. (1) The improvements included in the Project are suitable for use in academic instruction and educational and cultural activities, and no part of the improvements included in the Project are designed for use or will be used primarily for religious instruction or as a place for devotional activities or religious worship. (m) In order to qualify the Note and this Agreement under the "governmental program" provisions of Section 1.148-1(b) of the Treasury Regulations, the Borrower (and any "related person" thereto) will take no action the effect of which would be to disqualify this Loan Agreement as an "acquired program obligation" under said Section 1.148-1(b), including but not limited to entering into any arrangement, formal or informal, for the Borrower to purchase any portion of the Note. (n) The Borrower will not otherwise use the proceeds of the Note, or take or fail to take any action, the effect of which would be to cause interest on the Note to be includable in gross income for federal income tax purposes. (2) For the purpose of this Section, a "Determination of Taxability" shall mean the issuance of a statutory notice of deficiency by the Internal Revenue Service, or a ruling of the National Office or any District Office of the Internal Revenue Service, or a final decision of a court of competent jurisdiction, or a change in any applicable federal statute, which holds or provides in effect that the interest payable on the Note is includible, for federal income tax purposes under Section 103 of the Code ~`°~ in the gross income of the Lender or any other holder or prior holder of the Note, if the period, if any, for 13 contest or appeal of such action, ruling or decision by the Borrower or Lender or any other interested party has expired without any such contest or appeal having been properly instituted by the Lender, the Borrower, or any other interested party. The expenses of any such contest shall be paid by the party initiating the contest, and neither the Lender nor the Borrower shall be required to contest or appeal any Determination of Taxability. The "Date of Taxability" shall mean that point in time, as specified in the determination, ruling, order, or decision, that the interest payable on the Note becomes includable in the gross income of the Lender or any other holder or prior holder of the Note, as the case maybe, for federal income tax purposes. (3) If the Borrower receives a Determination of Taxability it shall promptly give notice of such Determination of Taxability to the City and the Lender. Upon receipt of a Determination of Taxability, the interest rate on the Note shall be increased in accordance with the terms of the Note from and after the Date of Taxability. Section 4.6. Lease or Sale of Project. Except for such rentals as occur in the ordinary course of the business of the Borrower, the Borrower shall not lease, sell, convey or otherwise transfer the Project, in whole or part, nor sell the Project in whole or part, nor convey its interest in the Land without first securing the written consent of the Lender; provided that in no event shall such lease, transfer, assignment, sale or conveyence be permitted if the effect thereof would otherwise be to impair the validity or the tax exempt status of the Note, nor shall any such transaction release the Borrower of any of its obligations under this Agreement, unless the assignee-transferee is a surviving, resulting or transferee entity as permitted under Section 4.2 of this Agreement. The Borrower shall promptly notify the City of . any such sale, transfer, assignment or lease. Section 4.7. Proiect Operation and Maintenance Expenses. The Borrower shall pay all expenses of the operation and maintenance of the Project including, but without limitation, fire and other risk insurance, public liability insurance, and such other insurance as Lender may require with respect to Borrower's properties and operations, in form, amounts, coverages and with insurance companies reasonably acceptable to the Lender, and all taxes and special assessments levied upon or with respect to the Project and payable during the term of this Agreement, all in conformance with the provisions of the Mortgage. Upon request of the Lender from time to time, the Borrower will deliver policies or certificates of insurance in form satisfactory to the Lender, evidencing compliance with the foregoing requirement. The Borrower. shall, to the extent practicable, exercise its best efforts to target any employment opportunities created by the Project to qualified individuals who are unemployed or economically disadvantaged as contemplated in Section 469.152, subdivision 11, of the Act. The Borrower will not use any proceeds of the Note to pay any costs of, or attributable to, the construction or equipping of any facilities used primarily for religious instruction or worship; all such costs will be paid with the Borrower's funds. The Borrower agrees that it will not use the Project or any part thereof (a) for sectarian instruction or study or primarily as a place for devotional activities or religious worship or as a facility used primarily in connection with any part of a program of a school or department of divinity for any religious denomination or the training of ministers, priests, rabbis or other similar persons in the field of religion or (b) in a manner which .would violate the First Amendment to the Constitution of the United States of America, including the decisions of the United States Supreme Court interpreting the same, or any comparable provisions of the Constitution of the State, including the decisions of the Supreme Court of the State interpreting the same. 14 Section 4.8. Notification of Changes. The Borrower covenants and agrees that it will promptly notify the Lender of: (1) any litigation which might materially and adversely affect the Borrower and any of its properties; (2) the occurrence of any Event of Default under this Agreement or under any other loan agreement, debenture, note, purchase agreement or any other agreement providing for the borrowing of money by the Borrower or any event of which the Borrower has knowledge and which, with the passage of time or giving of notice, or both, would constitute an Event of Default under this Agreement or under such other agreements; (3) any future event that would cause the representations and warranties contained in this Agreement to be untrue when applied to the Borrower's circumstances as of the date of such event; and (4) any material adverse change in the operations, business, properties, assets or conditions, financial or otherwise, of the Borrower. Section 4.9. Additional Covenants. In addition to the covenants and agreements of the Borrower set forth in this Agreement and contained in the Mortgage and the documents related hereto, the Borrower hereby covenants and agrees, so long as the Note remains unpaid, as follows: (1) All advances under the Note shall be used solely to pay Project Costs and Issuance Expenses. (2) The Project shall comply with all applicable restrictions, conditions, ordinances, regulations and laws of governmental departments and agencies having jurisdiction over the Project, and shall not violate any private restrictions or covenants or encroach upon or interfere with easements affecting the Land. (3) The Borrower will carry on continuously, diligently and with reasonable dispatch, the construction of the Improvements in conformance to the Plans and Specifications, free from all mechanics', laborers', and materialmen's liens and in a good and workmanlike manner, and complete the same on or before the Completion Date. (4) The Borrower will keep, perform, enforce and maintain in full force and effect all of the terms, covenants, conditions and requirements of this Loan Agreement, the Note, and the Mortgage; and, not to amend, modify, supplement, terminate, cancel or waive any of the terms, covenants, conditions or requirements of any of said documents without the prior written consent of the Lender. (5) The Borrower will not create, permit to be created or allow to exist, liens, charges or encumbrances on the Land (other than "Permitted Encumbrances" as defined in the Mortgage) and the lien of general real estate taxes and the installments of special assessments payable therewith, except for such liens, charges and encumbrances which are being diligently contested in good faith by appropriate proceedings and provided that, if requested by the Lender, the Borrower shall have provided to the Lender security satisfactory to the Lender as set forth in Section 1.03 of the Mortgage. (6) The Borrower will require each contractor to comply with all rules, regulations, ordinances and laws bearing upon its conduct of work on the Improvements. 15 (7) So long as Wells Fargo Bank, National Association is the Lender, the Borrower will maintain its business operating account and substantially all of its other bank accounts with the Lender and/or an affiliate of the Lender; provided, however, that deposits with the Archdiocese of Saint Paul and Minneapolis and the Catholic Community Foundation shall not be considered bank accounts and are hereby expressly permitted. If the Borrower fails to maintain such accounts with the Lender and/or an affiliate of the Lender as required in this Agreement, then the Lender shall have the option, upon prior written notice to the Borrower, of increasing the rate of interest due on the Note in accordance with the terms of the Note for the balance of the term of the Loan (which increase shall be in addition to any other increase which the Borrower may be subject to as specified in this Agreement) and/or declaring the same to be an Event of Default hereunder. (8) The Borrower will obtain and maintain, or cause to be obtained and maintained, at all times during the process of constructing and installing the Improvements and at all times thereafter during the term of the Loan, if applicable (and, from time to time at the request of the Lender, furnish the Lender with proof of payment of premiums on): (a) Comprehensive General Public Liabilitv Insurance, providing for limits of coverage of not less than $2,000,000.00/$2,000,000.00 and naming the Lender and the City as additional named insureds, as their interests may appear. (b) Builder's Risk Insurance, for the Land and the Project in an amount equal to the total Project Costs or such greater amount as the Lender may require pursuant to the Bank/Lender Documents and naming the Lender as mortgagee and loss payee. (c) Hazard Insurance, with respect to the Land, insuring against loss by fire, lightning, theft, vandalism, malicious mischief and other risks customarily covered by a standard extended coverage endorsement, in an amount not less than the full insurable value thereof and naming the Lender as mortgagee and loss payee. (d) Workers' Compensation Insurance, with statutory coverage covering all persons engaged in the construction or installation of the Project. (e) Flood Insurance, if any of the Land is located in a "flood plain" as defined by the Federal Insurance Administration, in the maximum amount obtainable up to the amount of the Note, naming the Lender as loss payee. All such insurance shall be pursuant to the self-insurance program of the Archdiocese of Saint Paul and Minneapolis or shall be insurance policies written by a company or companies acceptable to the Lender licensed to do business in the State of Minnesota. Such policies of insurance shall be subject to the approval of the Lender as to form, substance and (except as expressly designated above) amount, and, without limiting the generality of the foregoing, each such policy shall provide that the insurer shall give the Lender at least thirty (30) days prior written notice of cancellation, termination, amendment or non- renewal thereof. All such policies shall be in an amount sufficient to prevent the insured from becoming a co-insurer thereunder. (9) The Borrower will permit the Lender, acting by and through the Lender's officers, employees and agents, to examine all books, records, contracts, plans, drawings, permits, bills and statements of account pertaining to the Project and to make extracts therefrom and copies thereof. 16 (10) The Borrower will furnish to the Lender as soon as possible and in any event within seven (7) business days after the Borrower has obtained knowledge of the occurrence of an Event of Default, or an event which with the giving of notice or lapse of time or both would constitute an Event of Default, a statement signed by the Borrower setting forth details of such Event of Default or event and the action which the Borrower has taken, is taking or proposes to take to correct the same. (11) The Borrower will hold the Lender harmless, and the Lender shall have no liability or obligation of any kind to the Borrower, creditors of the Borrower or any third party, in connection with any defective, improper or inadequate workmanship performed in or about, or materials supplied to, the Land and the Improvements, or any mechanics', suppliers' or materialmen's liens arising as a result of such defective, improper or inadequate workmanship or materials, and upon the Lender's reasonable request, to replace or cause to be replaced, any such defective, improper or inadequate workmanship or materials. (12) The Borrower will pay and discharge all real estate taxes prior to the attachment of penalties with respect thereto and installments of special assessments payable therewith, and insurance premiums with respect to the insurance required to be maintained by the Borrower under the terms of any of the Bank/Lender Documents, and utility charges incurred by the Borrower prior to or during the term of this Agreement, except if such taxes, assessments and premiums are being contested in good faith by appropriate proceedings and provided that, if requested by the Lender, the Borrower shall have deposited into escrow with the Lender an amount equal to such taxes, assessments or premiums plus penalties accrued thereon. (13) The Borrower will cause to be prepared as soon as practicable as requested by the Lender, the financial statements/documentation of the Borrower and operating statements for the Project which are required by the Bank/Lender Documents and to furnish copies thereof to the Lender. (14) The Borrower will promptly give notice in writing to the Lender of any and all litigation involving the Borrower where. the amount in dispute exceeds $25,000.00 and is not covered by insurance, and of any and all litigation if the aggregate amount in dispute in connection with such litigation exceeds $25,000.00 and is not covered by insurance, and of any and all material proceedings commenced against the Borrower by or before any court or governmental or regulatory agency. (15) The Borrower will comply with the requirements of all applicable laws, rules, regulations and orders of any governmental authority, a breach of which would materially and adversely affect the business or credit of the Borrower, except where diligently contested in good faith and by proper proceedings. (16) The Borrower will comply with all existing and future registration, notification and other requirements of the Minnesota Petroleum Tank Cleanup Act, including, but not limited to, the notification of the Minnesota Pollution Control Agency of the existence of any underground and above-ground storage tanks and the age, size, type, location, use and content and of any future removal or conveyance of such tanks. (17) The Borrower will preserve and maintain all of the Borrower's rights, privileges and franchises necessary or desirable in the normal conduct of the Borrower's business, and not to suspend business operations or convey, transfer, encumber or pledge any of the Borrower's properties or assets. (18) The Borrower will keep all of the assets and properties necessary in the Borrower's businesses in good working order and condition, ordinary wear, tear and casualty excepted. 17 (19) The Borrower will obtain all necessary state, federal, local and private clearances, authorizations, permits and licenses with respect to the business operations of the Borrower, including, without limitation, any export and other trade licenses or permits required by law for the present or future business operations of the Borrower. (20) The Borrower will not undertake or permit without prior written approval of the Lender any other or additional construction on the Land or on any site or sites adjacent thereto owned by the Borrower, or any parties related to the Borrower. (21) The Borrower will deliver to the Lender such financial statements and other financial information/documentation normally prepared by the Borrower in the ordinary course of business as the Lender may require before and during the term of the Loan. The foregoing financial information documentation shall be provided to the Lender in a timely manner as reasonably required by the Lender. It is understood that the Lender may require the Borrower to sign any financial statements and financial information/documentation provided. If the Borrower fails to provide financial statements or other financial information/documentation to the Lender as required hereunder and such failure continues after ten (10) days' written notice thereof from the Lender to the Borrower, then the Lender shall have the option, upon prior written notice to the Borrower of increasing the rate of interest due on the Note in accordance with the terms of the Note for the balance of the term (which increase shall be in addition to any other increase which the Borrower may be subject to as specified in this Agreement) and/or declaring such failure to constitute an Event of Default hereunder. (The remainder of this page is intentionally left blank.) 18 ARTICLE 5 PREPAYMENT OF LOAN Section 5.1. Prepayment at Option of Borrower. The Borrower may at its option prepay the Loan, in whole or in part, at par plus accrued interest, and without penalty, except that no prepayment may be made at a time when the Monthly Rate (as defined in the Note) is in effect. Any partial prepayment shall be applied first against the interest accrued on the Note and shall be applied against the principal portion of the installments due under this Agreement. If the Borrower makes partial prepayments of the Principal Balance of the Note, Lender, upon the written request of the Borrower from time to time, will adjust the amount of the monthly principal installments thereafter due under the Note, on the following conditions: The Borrower may make a request for adjustment no more often than once during any twelve (12) month period. 2. The Borrower shall have prepaid at least $1,000,000.00 of the Principal Balance prior to the initial adjustment request and at least an additional $1,000,000.00 of the Principal Balance prior to each subsequent adjustment request. 3. The Borrower shall pay to Lender a fee of $400.00 for each adjustment, such fee to be paid at the time an adjustment request is made. Each adjustment in the amount of the monthly. principal installments shall be to the amount necessary to fully amortize the then remaining Principal Balance over the remaining portion of the original twenty (20) year amortization period. In the event the Borrower elects to prepay the Loan, the Borrower shall cause to be given in the name of the City due notice of redemption or prepayment of the Note as required by the Note, and shall pay the prepayment price when due to the Lender. The City hereby authorizes the Borrower to give mailed notice of prepayment and, if required by law, published notice of prepayment of the Note in the name of the City, from time to time. (The remainder of this page is intentionally left blank.) 19 ARTICLE 6 EVENTS OF DEFAULT AND REMEDIES Section 6.1. Events of Default. Any one or more of the following events is an Event of Default under this Agreement: (1) If the Borrower shall fail to make (a) any payments required under Section 3.4 of this Agreement on the date due, or (b) any other payment due under this Agreement on or before the date that the payment is due and such default continues for ten (10) days after written notice given to the Borrower by the City or the Lender as provided in the Note. (2) If the Borrower shall fail to observe and perform any other covenant, condition or agreement on its part under this Agreement for a period of thirty (30) days after written notice, specifying such default and requesting that it be remedied, given to the Borrower by the City or the Lender, unless the Lender shall agree in writing to an extension of such time prior to its expiration, or for such longer period as may be reasonably necessary to remedy such .default provided that the Borrower is proceeding with reasonable diligence to remedy the same. (3) The occurrence of a Determination of Taxability. (4) If the Borrower shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to any present or future federal bankruptcy act or under any similar federal or state law, shall consent to the entry of an order for relief pursuant to any present or future federal bankruptcy act or under any similar federal or state law, or shall make an assignment for the benefit of its creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the entry of an order for relief of the Borrower under any present or future federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within 90 days after the filing thereof, or a receiver, trustee or liquidator of the Borrower of all or substantially all of the assets of the Borrower, or of the Project shall be appointed in any proceeding brought against the Borrower and shall not be discharged within 90 days after such appointment or if the Borrower shall consent to or acquiesce in such appointment, or if the estate or interest of the Borrower in the Project or a part thereof shall be levied upon or attached in any proceeding and such process shall not be vacated or discharged within 90 days after such levy or attachment; if the Borrower shall be dissolved or liquidated or shall be merged with or is acquired by another business entity in violation of Section 4.2. (5) If the articles of incorporation of the Borrower shall expire or be annulled; or if the Borrower shall be dissolved or liquidated (other than when a new entity assumes the obligations of the Borrower under the conditions permitting such action contained in Section 4.2). (6) If any representation or warranty made by the Borrower in this Agreement, or by an officer or representative of the Borrower in any document or certificate furnished the Lender or the City in connection herewith or therewith or pursuant hereto or thereto, shall prove at any time to be, in any material respect, incorrect or misleading as of the date made. (7) If the Borrower shall default or fail to perform any covenant, condition or agreement on its part under the Bank Loan Agreement, the Mortgage, or any other security document securing the Note, and such failure continues beyond the period set forth in such documents during which the Borrower may cure the default. 20 (8) Failure of the Borrower to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between the Lender and the Borrower. (9) Failure by the Borrower to make payments of the principal of or interest on the Series 2002 Note or the occurrence of an event of default under the terms of the loan agreement, pledge agreement, Mortgage, or the bank/loan documents for the Series 2002 Note. Section 6.2. Remedies. Whenever any Event of Default referred to in Section 6.1 of this Agreement shall have happened and be subsisting, any one or more of the following remedial steps to the extent permitted by law may be taken by the City with the prior written consent of the Lender or by the Lender itself: (1) The City, upon written direction of the Lender, or the Lender may declare all installments of the Loan (being an amount equal to that necessary to pay in full the Principal Balance plus accrued interest thereon of the Note assuming acceleration of the Note under the terms thereof and to pay all other indebtedness thereunder) to be immediately due and payable, whereupon the same shall become immediately due and payable by the Borrower. (2) The City, upon written direction of the Lender (except as otherwise provided in Section 7.9 in this Agreement), or the Lender (in either case at no expense to the City) may take whatever action at law or in equity may appear necessary or appropriate to collect the amounts then due and thereafter to become due under this Agreement, or to enforce performance and observance of any obligation, agreement or covenant of the Borrower under this Agreement. Section 6.3. Disposition of Funds. Notwithstanding anything to the contrary contained in this Agreement, any amounts collected pursuant to action taken under Section 6.2 of this Agreement, except for any amounts collected solely for the benefit of the City under any of the provisions set forth in Section 7.9, shall, after deducting all expenses incurred in collecting the same, be delivered to the Lender and applied as provided in the Bank/Lender Documents. Section 6.4. Manner of Exercise. No remedy in this Agreement conferred upon or reserved to the City or the Lender is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power maybe exercised from time to time and as often as may be deemed expedient. In order to entitle the City or the Lender to exercise any remedy reserved to either of them in this Article, it shall not be necessary to give any notice, other than such notice as maybe in this Agreement expressly required. Section 6.5. Attorneys' Fees and Expenses. In the event the Borrower should default under any of the provisions of this Agreement and the City or the Lender should employ attorneys or incur other expenses for the collection of amounts due hereunder or the enforcement of performance of any obligation or agreement on the part of the Borrower, the Borrower will on demand pay to the City or the Lender the reasonable fee of such attorneys and such other expenses so incurred. Section 6.6. Effect of Waiver. In the event any agreement contained in this Agreement should be breached by either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. 21 ARTICLE 7 GENERAL Section 7.1. Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when mailed by certified or registered mail, postage prepaid, with proper address as .indicated below. The City, the Borrower and the Lender may, by written notice given by each to the others, designate any address or addresses to which notices, certificates or other communications to them shall be sent when required as contemplated by this Agreement. Until otherwise provided by the respective parties, all notices, certificates and communications to each of them shall be addressed as follows: To the City: City of Richfield, Minnesota 6700 Portland Avenue Richfield, Minnesota 55423 Attn: City Manager To the Borrower: Academy of Holy Angels 6600 Nicollet Avenue South Richfield, Minnesota 55423-2498 Attn: President With a copy to: Catholic Finance Corporation 5826 Blackshire Path Inver Grove Heights, MN 55076 Attn: Executive Director To the Lender: Wells Fargo Bank, National Association MAC N9117-031 430 North Wabasha Street Suite 302 Saint Paul, Minnesota 55101. Attn: St. Paul Regional Commercial Banking Office Section 7.2. Bindin Effect. This Agreement shall inure to the benefit of and shall be binding upon the City and the Borrower and their respective successors and assigns. Section 7.3. Severability. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement. Section 7.4. Amendments, Changes and Modifications. Except as otherwise provided in this Agreement or in the Resolution, subsequent to the initial issuance of the Note and before the Note is satisfied and discharged in accordance with its terms, this Agreement may not be effectively amended, changed, modified, altered, or terminated without the written consent of the Lender. Section 7.5. Execution Counterparts. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 22 Section 7.6. Limitation of City's Liability. It is understood and agreed by the Borrower and the Lender that no covenant of the City in this Agreement shall give rise to a pecuniary liability of the City or a charge against its general credit, or taxing powers. It is further understood and agreed by the Borrower and the Lender that the City shall incur no pecuniary liability hereunder, and shall not be liable for any expenses related hereto, including administrative expenses and fees and disbursements of the City's attorney, Bond Counsel and fiscal consultant retained in connection therewith, all of which expenses the Borrower agrees to pay. Section 7.7. Citv's Fees and Costs. If, notwithstanding the provisions of Section 7.6 of this Agreement, the City incurs any expense, or suffers any losses, claims or damages, or incurs any liabilities in connection with the transaction contemplated by this Agreement, unless due to the intentional misconduct of the City, the Borrower will indemnify and hold harmless the City from the same and will reimburse the City for any reasonable legal or other expenses incurred by the City in relation thereto. The Borrower shall also reimburse the City for all other costs and expenses, including without limitation reasonable attorneys' fees, paid or incurred by the City in connection with (i) the discussion, negotiation, preparation, approval, execution and delivery of this Agreement, the Note, the Pledge Agreement and the documents and instruments related hereto or thereto; (ii) any amendments or modifications hereto or to the Note, the Pledge Agreement and any document, instrument or agreement related hereto or thereto, and the discussion, negotiation, preparation, approval, execution and delivery of any and all documents necessary or desirable to effect such amendments or modifications; and (iii) the enforcement by the City during the term of this Agreement or thereafter of any of the rights or remedies of the City hereunder or under the Note, the Pledge Agreement or any document, instrument or agreement related hereto or thereto, including, without limitation, costs and expenses of collection in the Event of Default, whether or not suit is filed with respect thereto. Section 7.8. Release. The Borrower hereby acknowledges and agrees that the City shall not be liable to the Bon ower, and hereby releases and discharges the City from any liability, for any and all losses, costs, expenses (including reasonable attorneys' fees), damages, judgments, claims and causes of action, paid, incurred or sustained by the Borrower as a result of or relating to any action, or failure or refusal to act, on the part of the Lender with respect to this Agreement or the documents and transactions related hereto or contemplated hereby, including, without limitation, the exercise by the Lender of any of its rights or remedies pursuant to Article 6, the Note, the Pledge Agreement, the Mortgage, or any collateral security documents. The Borrower's release of the City pursuant to the preceding sentence does not extend to the Lender following the assignment of the City's rights to the Lender pursuant to the Pledge Agreement. Section 7.9. Assignment by City and Survivorship of Obli ations. The City may assign its rights under this Agreement and any related documents to the Lender to secure payment of the principal of and interest and premium, if any, on the Note, conditioned upon the Lender's assumption of the City's and Lender's obligations to the Borrower hereunder, but any such assignment shall not operate to limit or otherwise affect the provisions of Sections 3.6, 4.1, 4.3, 6.5, 7.6, 7.7, or 7.8 of this Agreement to the extent that they run to the City from the Borrower to which extent they shall survive any such assignment. The City shall have the right to enforce any retained rights without the approval of the Lender. The obligations of the Borrower running to the City for the. purpose of preserving the tax exempt status of the Note or otherwise for the City's benefit under the foregoing Sections shall survive payment of the Note and interest thereon. Section 7.10. Required Ap royals. Consents and approvals required by this Agreement to be obtained from the Borrower or the City shall be in writing and shall not be unreasonably withheld or delayed. 23 Section 7.11. Termination Upon Retirement of Note. At any time when no principal balance on the Note remains outstanding, and arrangements satisfactory to the Lender and the City have been made for the discharge of all other accrued liabilities, if any, under this Agreement, this Agreement shall terminate, except as otherwise expressly provided in Section 7.9 or otherwise in this Agreement. Section 7.12. Lender's Attorneys' Fees and Costs. The Borrower agrees to pay upon demand all of the Lender's out-of-pocket expenses, including reasonable attorneys' fees, incurred in connection with this Agreement, the Loan or the Note. The Lender may pay someone else to help collect the Loan and to enforce this Agreement, and Borrower will pay that amount. This includes, subject to any limits under applicable law, Lender's attorneys' fees and legal expenses, whether or not there is a lawsuit, including attorneys' fees for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post judgment collection services. The Borrower also will pay any court costs, in addition to all other sums provided by law. Section 7.13. Bank/Lender Documents to Control. Other than provisions of this Agreement required to maintain the tax-exempt status of interest on the Note, in the event of any conflict or inconsistency between Borrower's obligations to the Lender under this Agreement and its obligations to the Lender under the Bank/Lender Documents or between the Lender's rights under this Agreement and its rights under the Bank/Lender Documents, the provisions of the Bank/Lender Documents shall control. (The remainder of this page is intentionally left blank.) 24 In witness whereof, the City and the Borrower have caused this Agreement to be executed in their respective names all as of the date first above written. CITY OF RICHFIELD, MINNESOTA By Its Mayor By Its City Manager S-1 Execution page of the Borrower to the Loan Agreement, dated as of December 1, 2003. ACADEMY OF HOLY ANGELS By Dr. Jill M. Reilly President RC145-513 (BW~ 239427v.1 ~~. _/ S-2 First Draft _ Thursday, November Z0, 2003 PLEDGE AGREEMENT between CITY OF RICHFIELD, MINNESOTA and WELLS FARGO BANK, NATIONAL ASSOCIATION Dated as of December 1, 2003 PLEDGE AGREEMENT This Pledge Agreement, dated as of December 1, 2003 (this "Pledge Agreement"), is made and entered into between the City of Richfield, Minnesota, a municipal corporation and political subdivision of the State of Minnesota ("City"), and Wells Fargo Bank, National Association, a national banking association (the "Lender"). RECITALS WHEREAS, Academy of Holy Angels, a Minnesota nonprofit corporation (the "Borrower"), and the City have entered into a Loan Agreement, dated as of December 1, 2003 (the "Loan Agreement"), pursuant to which the City will lend to the Borrower the proceeds of its Educational Facilities Revenue Note (Academy of Holy Angels Project), Series 2003 (the "Note"), issued by the City in the original aggregate principal amount of $1,460,000; and WHEREAS, the Note is payable from and secured by the loan repayments to be made by the Borrower under the Loan Agreement; and the Lender, as a condition to the purchase of the Note, has required the execution of this Pledge Agreement. Now, therefore, as an inducement to the. Lender to purchase the Note, and in consideration of the promises and other good and valuable consideration, the receipt and sufficiency whereof is hereby acknowledged, the parties hereby agree as follows: 1. In order to secure the due and punctual payment of the Note and all other sums due the Lender under the Loan Agreement, the City does hereby pledge and assign to the Lender all of the City's right, title and interest in and to the Loan Agreement, subject to the City's reserved rights. referred to in Section 7.9 of the Loan Agreement. 2. The City hereby represents and warrants to the Lender that the City has not assigned its right, title and interest in the Loan Agreement to any person other than the Lender pursuant to the terms of this Pledge Agreement. Subject to the terms and limitations of Section 7.6 of the Loan Agreement, the City hereby represents and warrants to the Lender as set forth in Section 2.1 of the Loan Agreement, the provisions of which are fully incorporated in this Pledge Agreement. 3. The City hereby authorizes the Lender to exercise, whether or not a default exists under the Note or an Event of Default has occurred under the Loan Agreement, either in the City's name or the Lender's name, any and all rights or remedies available to the City under the Loan Agreement. The City agrees, on request of the Lender, to execute and deliver to the Lender such other documents or instruments as shall be deemed necessary or appropriate by the Lender at any time to confirm or perfect the security interest hereby granted. The City hereby appoints the Lender as its attorney-in-fact to execute on behalf of the City, and in its name, any and all such assignments, financing statements or other documents or instruments which the Lender may deem necessary or appropriate to perfect, protect or enforce the security interest hereby granted. 4. The City will not: (a) exercise or attempt to exercise any remedies under the Loan Agreement except as permitted by Sections 6.2 and 7.9 of the Loan Agreement, or terminate, modify or accept a surrender of the same, or by affirmative act, consent to the creation or existence of any security interest or other lien in the Loan Agreement to secure payment of any other indebtedness; or _ (b) receive or collect or permit the receipt or collection of any payments, receipts, rentals, profits or other money under the Loan Agreement (except as allowed under Section 7.9 thereof) or assign, transfer or hypothecate (other than to the Lender under this Pledge Agreement) any of the same then due or to accrue in the future; or (c) amend, modify, or agree to the termination of the Loan Agreement without the Lender's prior written consent. 5. The City expressly covenants and agrees that the Lender shall be entitled to receive all payments under the Loan Agreement (except any payments due the City under Section 7.9 thereof), and hereby authorizes and directs the Borrower to make such payments directly to the Lender. The Lender covenants and agrees that all payments received by the Lender pursuant to the Loan Agreement shall be applied to the payment of principal and interest on the Note. 6. If an Event of Default (as defined in the Loan Agreement) shall occur and be continuing, the Lender may exercise any one or more or all, and in any order, of the remedies hereinafter set forth, it being expressly understood that no remedy in this Pledge Agreement conferred is intended to be exclusive of any other remedy or remedies; but each and every remedy shall be cumulative and shall be in addition to every other remedy given in this Pledge Agreement or now or hereafter existing at law or in equity or by statute: (a) The Lender may, without prior notice of any kind, declare the principal of and interest accrued on the Note immediately due and payable. (b) The Lender may exercise any rights and remedies and options of a secured party under the Uniform Commercial Code as adopted in the. State of Minnesota and any and all rights available to it under the Loan Agreement, the Mortgage and the Security Agreement (as defined in the Loan Agreement) securing payment of the Note. 7. By its execution of this Pledge Agreement, the Lender acknowledges that the Note is an obligation that is on parity with the City's Educational Facilities Revenue Note (Academy of Holy Angels Project), Series 2002 (the "Series. 2002 Note"), in .the original aggregate principal amount of $8,540,000 and issued by the City on December 30, 2002. The Lender purchased the Series 2002 Note on its date of issuance and the Lender the current owner of the Series 2002 Note. 8. Whenever any of the parties hereto is referred to, such reference shall be deemed to include the successors and assigns of such party; and all the covenants, promises and agreements in this Pledge Agreement contained by or on behalf of the City or the Lender shall bind and inure to the benefit of the respective successors and assigns of such parties whether so expressed or not. 9. The unenforceability or invalidity of any provision or provisions of this Pledge Agreement shall not render any other provision or provisions in this Pledge Agreement contained unenforceable or invalid. 10. This Pledge Agreement shall in all respects be governed by the laws of the State of Minnesota. This Pledge modified except in writing signed by the City and the Lender. construed in accordance with and Agreement may not be amended or 2 11. This Pledge Agreement may be executed, acknowledged and delivered in any number of counterparts and each of such counterparts shall constitute an original but all of which together shall constitute one agreement. 12. The terms used in this Pledge Agreement which are defined in the Loan Agreement shall have the meanings specified therein, unless the context of this Pledge Agreement otherwise requires, or unless such terms are otherwise defined in this Pledge Agreement. 13. No obligation of the City under this Pledge Agreement shall constitute or give rise to a pecuniary liability of the City or a charge against its general credit or taxing powers, but shall be payable solely out of the proceeds and the revenues derived under the Loan Agreement. (The remainder of this page is intentionally left blank.) 3 In witness whereof, the City and the Lender have caused this Pledge Agreement to be duly _ executed as of the day and year first above written. CITY OF RICHFIELD, MINNESOTA By Its Mayor By Its City Manager S-1 Execution page of the Lender to the Pledge Agreement, dated as of December 1, 2003. WELLS FARGO BANK, NATIONAL ASSOCIATION By Its RC145-513 (BW~ 239428v.1 S-2 AGENDA SECTION: Consent AGENDA ITEM # rj~, REPORT # 261 STAFF REPORT CITY COUNCIL MEETING NOVEMBER 25, 2003 REPORT PREPARED BY: RANDY HUGHES, OPERATIONS SUPERINTENDENT NAME, TITLE COUNCIL PRESENTER: DEPARTMENT DIRECTOR REVIEW: .>~ ~~F REVIEWED BY CITY MANAGER: J7GNATURE ITEM FOR COUNCIL CONSIDERATION: Consideration of the attached resolution accepting the contract between the City of Richfield and Henne in Count for the urchase of fuel. I. RECOMMENDED ACTION: By Motion: Approve the attached resolution approving the contract with Hennepin County for the purchase of diesel and unleaded fuel for the period commencing December 31, 2003 and terminating December 31, 2010 at the cooperative purchase rate determined by the Hennepin County bid process. II. BACKGROUND In early 1999, the City was forced to remove its fuel tanks from 7700 Pillsbury Avenue because they did not meet state codes. New tanks were not installed on site in anticipation of the City Maintenance Facility moving to a new location. As a temporary fueling solution, Hennepin County agreed to allow us to fuel our vehicles at their Bloomington truck station (120 West 81st Avenue South) for one year. In the year 2000, the agreement was extended for two more years. This agreement has expired as of January 1, 2003, and the County has agreed to extend it to December 31, 2010. This agreement allows City vehicles to refuel at a convenient location at below retail gas costs. 0610-76StTrail III. BASIS OF RECOMMENDATION A. POLICY • Since 1999, the City has purchased fuel from Hennepin County under this cooperative agreement as a temporary solution until a new maintenance facility is constructed. B. CRITICAL ISSUES • The City participates in a joint purchasing agreement with Hennepin County for fuel. The County solicits bids for the cooperative purchase agreement. The County has agreed to furnish fuel to the City at their bid price with no additional mark up. • On April 22, 2003, the Council agreed to a new four-year extension of our fuel agreement with Hennepin County. The signed agreement was sent to the County, who then decided that the format needed to be changed. The content remained the same, other than extending the agreement period from December 31, 2006 to December 31, 2010. The County Commission is now requiring a certified copy of the City resolution for the contract. • unaer the agreement, Hennepin County charges us exactly what they pay for fuel under the Cooperative Purchasing Program. This is as cost effective as having our own tanks. Costs for fuel the previous three years are as follows: • .2000: $ 74,601.00 • 2001: $116,749.00 • 2002: $ 82,405.00 • The amounts paid by the City shall be at the prevailing rates as established under Hennepin County's contract with Tracy Tripp Fuel, Inc. • Average costs per gallon as of February 2003 are $1.15 per gallon for diesel and $1.20 per gallon for unleaded, well below retail prices. D. LEGAL • The City's policy on purchasing provides that when the purchase price of merchandise, materials, equipment, or construction exceeds $50,000.00, competitive bids are required and the authority to purchase shall be submitted to the City Council for consideration. IV. ALTERNATIVE RECOMMENDATION(Sl • Council may chose to deny approval and direct staff to obtain new bids for the purchase of fuel, however, staff believes the best price is available through the joint purchase contract. I V . ATTACHMENTS I • Contract with Hennepin County ~ Vl. PRINCIPAL PARTIES EXPECTED AT MEETING • None RESOLUTION NO. RESOLUTION AUTHORIZING THE EXECUTION OF THE COOPERATIVE AGREEMENT (CONTRACT NO: A030490) BETWEEN HENNEPIN COUNTY AND THE CITY OF RICHFIELD ON BEHALF OF THE CITY. WHEREAS, Hennepin County wishes to sell fuel services to the City of Richfield and the County has a facility located in Bloomington, Minnesota, which acts as a fueling station for diesel and gas powered vehicles; and WHEREAS, the City of Richfield is planning a new transportation facility and does not have their own fueling station available at this time; and WHEREAS, the City of Richfield wishes to use the County's Bloomington Facility as a fueling station for its diesel and gas powered vehicles. NOW, THEREFORE, BE IT RESOLVED that the Richfield City Council hereby approve the cooperative agreement (Contract No: A030490) and authorize the Mayor and City Manager to execute said agreement on behalf of the City. Adopted by the City Council of the City of Richfield, Minnesota this 25 day of November, 2003. Martin J. Kirsch, Mayor ATTEST: Nancy Gibbs, City Clerk Contract No: A030490 COOPERATIVE AGREEMENT THIS AGREEMENT made and entered into by and between the COUNTY OF HENNEPIN, STATE OF MINNESOTA, hereinafter referred to as the "COUNTY," on behalf of the Hennepin County Public Works Department, 1600 Prairie Drive, Medina, Minnesota, 55340- 5421 and the City of Richfield, 6700 Portland Avenue South, Richfield, Minnesota 55423, a political subdivision of the State of Minnesota, hereinafter referred to as the "CITY." WITNESSETH: WHEREAS, the CITY is building a new transportation facility and will not have a fueling station during the construction of said facility; and WHEREAS, the CITY wishes to purchase fuel from the COUNTY which has a facility located in Bloomington, Minnesota, which acts as a fueling station for diesel and gas powered vehicles; and WHEREAS, the CITY wishes to use the COUNTY' S Bloomington Facility (Facility) as a fueling station for its diesel and gas powered vehicles during the construction of its new facility; and WHEREAS, it is contemplated that said work will be carried out by the parties herein under the provisions of Minnesota Statute Section 471.59, NOW, THEREFORE, in consideration of the mutual undertakings and agreements hereinafter set forth, the COUNTY and the CITY agree as follows: TERM AND COST OF THE AGREEMENT The COUNTY agrees to provide Facility fueling access to the CITY during the period commencing December 31, 2003 and terminating December 31, 2010. The COUNTY shall be paid the amounts provided in Exhibit A attached hereto and incorporated herein by this reference. 2. SERVICES TO BE PROVIDED The COUNTY will provide the CITY with access to the Facility. This access is solely for the purpose of fueling the CITY' S diesel and gas powered vehicles and shall be governed by Exhibit B which is attached hereto and incorporated herein by this reference. 3. PAYMENT FOR SERVICES Payment for services shall be made directly to the COUNTY after completion of the services upon the presentation of an invoice in the manner provided bylaw governing the COUNTY'S payment of claims and/or invoices. The COUNTY shall submit monthly invoices for services rendered on forms which maybe furnished by the COUNTY. Payment shall be made within thirty (30) days from receipt of the invoice. 4. INDEMNIFICATION AND LIABILITY The CITY agrees to defend, indemnify and hold harmless the COUNTY, its officials, officers, agents, volunteers, and employees from any liability, claims, causes of action, judgments, damages, losses, costs or expenses, including reasonable attorney's fees, resulting directly or indirectly from any act or omission of the CITY, anyone directly or indirectly employed by them, and/or anyone for whose acts and/or omissions they maybe liable related to the CITY'S use of the COUNTY'S Facility as a fueling station as proposed herein. Each party agrees that it will be responsible for its own acts and the results thereof, to the extent authorized by the law, and shall not be responsible for the acts of the other party and the results thereof. The COUNTY'S and the CITY'S liability is governed by the provisions of Minnesota Statutes, Chapter 466. The COUNTY and the CITY each warrant that they are able to comply with the aforementioned indemnity requirements through an insurance or self-insurance program. 5. CLAIMS It is further agreed that any and all employees of the CITY and all other persons engaged by the CITY in the performance of any work or services required or provided for herein to be performed by the CITY shall not be considered employees of the COUNTY, and that any and all claims that may or might arise under the Workers' Compensation Act or the Minnesota Economic Security Law on behalf of said employees while so engaged and any and all claims made by any third parties as a consequence of any act or omission on the part of said employees while so engaged on any of the work or services provided to be rendered herein shall in no way be the obligation or responsibility of the COUNTY. Also, any and all employees of the COUNTY and all other persons engaged by the COUNTY in the performance of any work or services required or provided for herein to be performed by the COUNTY shall not be considered employees of the CITY, and that any and all claims that may or might arise under the Workers' Compensation Act or the Minnesota Economic Security Law on behalf of said employees while so engaged and any and all claims made by any third parties as a consequence of any act or omission on the part of said employees while so engaged on any of the work or services provided to be rendered herein shall in no way be the obligation ore responsibility of the CITY. 6. DATA PRIVACY 2 CITY, its officers, agents, owners, partners, employees, volunteers and subcontractors agree to abide by the provisions of the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13; and all other applicable state and federal laws, rules, regulations and orders relating to data privacy or confidentiality, and as any of the same maybe amended. CITY agrees to defend, indemnify and hold harmless the COUNTY, its officials, officers, agents, employees, and volunteers from any claims resulting CITY'S officers', agents', owners', partners', employees', volunteers', assignees' or subcontractors' unlawful disclosure and/or use of such protected data. The terms of this paragraph shall survive the cancellation or termination of this Agreement. 7. RECORDS -AVAILABILITY/ACCESS Subject to the requirements of Minnesota Statutes Section 16C.05, Subd. 5 (as maybe amended), the CITY agrees that the County, the State Auditor, the Legislative Auditor or any of their duly authorized representatives, at any time during normal business hours, and as often as they may reasonably deem necessary, shall have access to and the right to examine, audit, excerpt, and transcribe any books, documents, papers, records; etc., which are pertinent to the accounting practices and procedures of the CITY and involve transactions relating to this Agreement. Such materials shall be maintained and such access and rights shall be in force and effect during the period of the contract and for six (6) years after its termination or cancellation. 8. SUCCESSORS, SUBCONTRACTING AND ASSIGNMENTS The CITY binds itself, its partners, successors, assigns and legal representatives to the COUNTY in respect to all covenants, agreements and obligations contained in the contract documents. The CITY shall not assign, subcontract, transfer or pledge this contract and/or the services to be performed hereunder, whether in whole or in part, nor assign any monies due or to become due to it hereunder. 9. MERGER AND MODIFICATION a. It is understood and agreed that the entire Agreement between the parties is contained herein and that this Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter hereof. All items referred to in this Agreement are incorporated or attached and are deemed to be part of this Agreement. b. Any alterations, variations, modifications, or waivers of provisions of this Agreement shall only be valid when they have been reduced to writing as an amendment to this Agreement signed by the parties hereto. 3 10. CONTRACT ADMIlVISTRATION In order to coordinate the services of the CITY with the activities of the Public Works Department so as to accomplish the purposes of this Agreement, Dana Albers, CMED/Fleet Manager or his successor, shall manage this Agreement on behalf of the COUNTY and serve as liaison between the COUNTY and the CITY. 11. COMPLIANCE a. The CITY shall comply with all applicable federal, state and local statutes, regulations, rules and ordinances in force or hereafter enacted. b. If the source or partial source of funds for payment of services under this Agreement is federal, state or other grant monies, CITY shall comply with all applicable conditions of the specific grant, attached hereto and incorporated herein. 12. NOTICES Any notice or demand which must be given or made by a party hereto under the terms of this Agreement or any statute or ordinance shall be in writing, and shall be sent registered or certified mail. Notices to the COUNTY shall be sent to the County Administrator with a copy to the originating Department at the address given in the opening paragraph of the Agreement. Notice to the CITY shall be sent to the address stated in the opening paragraph of the Agreement or if not stated therein, then to the address stated in CITY Form W-9 provided to and on file with the COUNTY. 13. MINNESOTA LAWS GOVERN The Laws of the State of Minnesota shall govern all questions and interpretations concerning the validity and construction of this contract and the legal relations between the herein parties and performance under it. The appropriate venue and jurisdiction for any litigation hereunder will be those courts located within the County of Hennepin, State of Minnesota. Litigation, however, in the federal courts involving the herein parties will be in the appropriate federal court within the State of Minnesota. If any provision of this contract is held invalid, illegal or unenforceable, the remaining provisions will not be affected. THIS PORTION OF PAGE INTENTIONALLY LEFT BLANK 4 COUNTY BOARD APPROVAL City of Richfield, having signed this contract, and the Hennepin County Board of Commissioners having duly approved this contract on the day of ,and pursuant to such approval, the proper County officials having signed this contract, the parties hereto agree to be bound by the provisions herein set forth. COUNTY OF HENNEPIN ATTEST: By: By. Deputy/Clerk of County Board Chair of Its County Board Date: Date: APPROVED AS TO FORM: And: Assistant/Deputy/County Administrator gy: Assistant County Attorney Date: Date: And: APPROVED AS TO EXECUTION: By: Assistant County Attorney Date: City organized under: Statutory Option A Assistant County Administrator, Public Works and County Engineer Date: RECOMMENDED FOR APPROVAL By: Director, Public Works Management Support Date: CITY OF RICHFIELD By: Its: And: Its: Option B Charter 5 EXHIBIT A ^ The amounts paid by the CITY shall be at the prevailing rates as established under Hennepin County's contract with Tracy Tripp Fuel, Inc. or current contracted supplier. ^ The CITY shall pay all applicable taxes. ^ The CITY shall pay $5.50 for each additional fuel key that is provided to the CITY. ^ The CITY shall also be responsible for all reasonable costs and expenses incurred by the COUNTY related to the services herein. 6 EXHIBIT B The CITY agrees to invite only those persons performing tasks on behalf of the CITY in connection with the contract. As to such person, the CITY agrees to maintain proper vigilance so as to insure that they shall discharge their duties in a safe, courteous, and efficient manner. The CITY agrees that no property other than such as might normally be brought upon the premises of the Facility as an incident to the reasonable use thereof for the purposes specified by the COUNTY will be brought upon said premises. The CITY shall not use, suffer, or permit the use of the designated premises or any part thereof in any manner or for any purposes, or do, bring or keep anything to be done, brought or kept, therein (including, but not limited to, the installation or operation of any electrical, electronic or other equipment) which, in the reasonable judgment of the COUNTY, would: 1. violate any covenant, agreement, term, provision or condition of this Agreement or is unlawful or in contravention of any permit issued to the COUNTY for the Facility; 2. impair or interfere in any way with any of the Facility services or impair or interfere with the use of the other areas of the premises by, or occasion discomfort, inconvenience or annoyance to, any of the other users of the Facility or impair the appearance of the premises; 3. be prejudicial to the business of the COUNTY or the Facility; 4. reflect unfavorably on the COUNTY or the premises. The CITY shall take precaution so as not to allow injury or damage to the Facility. The CITY shall pay the cost of making good any injury, damage or breakage thereto caused by the CITY or by the employees, agents, invitees, officers or contractors of the CITY. The CITY will observe and comply with the rules and regulations which the COUNTY has made or may make and communicate hereafter, at any time in writing, to the CITY, and which, in the judgment of the COUNTY, shall be necessary or desirable for the reputation, safety, care or appearance of the Facility or the preservation of good order therein, or the operation or maintenance of the Facility, or the equipment thereof. The COUNTY is not liable, and the CITY holds the COUNTY harmless for any loss or damage which the CITY may sustain from: 1. injury or damage to the CITY or for any damage to or loss (by theft or otherwise) of, or loss of use of, any property of the CITY, or property in the CITY'S possession, including any injury, loss or damage to person -and property belonging to them -who have been invited or requested to be on the Facility by the CITY in connection with its use of the Facility, unless any such injury, loss or damage, all as aforesaid, is caused by the sole negligence of the COUNTY, its officers or employees; 2. interruption in any service from any cause whatsoever; 3. any act of employees or agents or persons other than the COUNTY'S. 7 4. personal and/or bodily injury; or 5. any loss incurred by the CITY resulting from its inability to use the Facility. In the event that a minor problem should occur at the Facility, the CITY will contact Douglas Armstrong at (612) 745-7513, during work days only, Mon-Fri 7:00 a.m. 3:30 p.m. In the event that there is a problem or fueling incident at the Facility which requires immediate action, the CITY shall contact all appropriate emergency agencies and Hennepin County Security at (612) 348-5111 twenty-four (24) hours a day. 8 ~' STAFF REPORT AGENDA SECTION: AGENDA ITEM # REPORT # CITY COUNCIL MEETING NOVEMBER 25, 2003 Presentation 1 260 REPORT PREPARED BY: COUNCIL PRESENTER: ACTING DEPARTMENT DIRECTOR REVIEW: REVIEWED BY CITY MANAGER: BRUCE NORDQUIST, HOUSING AND REDEVELOPMENT MANAGER Nance, TITLE ITEM FOR COUNCIL CONSIDERATION: Recognizing the accomplishment of a national award received by the Richfield Housing and Redevelopment Authority for a superior housing and community development project at Woodlake Centre. L RECOMMENDED ACTION: By Motion: Recognize and share in the Housing and Redevelopment Authority's accomplishment of the National Association of Housing and Redevelopment Officials National Award of Excellence for: Woodlake Centre: A New Town Center Beains III. BACKGROUND For 2003, the Woodlake Centre project is one of two community revitalization projects in the United States to be recognized with a National Award of Excellence from the National Association of Housing and Redevelopment Officials (NAHRO). The project was found to be outstanding because of the new housing choices in a mixed-use design that demonstrates the public/private partnerships required to revitalize. Woodlake Centre includes: • 138 one and two bedroom apartment flats and three-bedroom townhomes • 78 units of assisted living • 90,000 sq. ft. of new commercial space 112503-NAHRO Award of Excellence • 650 structured parking spaces and the connecting Kirchbak Sculpture Garden green space. The National Association of Housing Redevelopment Official (NAHRO) represents 3,000 agency and 16, 000 individual members. The award was officially presented at NAHRO's National Conference in Dallas, Texas on October 21, 2003. Bruce Nordquist attended to accept the award on behalf of the Housing and Redevelopment Authority (HRA). The award is shared with the City Council, HRA, Planning Commission, the developer -Richfield State Agency, the architect - Elness, Swenson, Graham, and staff and consultants that each played a role in the project. The project was completed in 2001. This special recognition is not new to the Richfield HRA. In 1997, the "Richfield Rediscovered" program received a National Award of Excellence. III. BASIS OF RECOMMENDATION A. POLICY • The partnership of the City Council and HRA demonstrates the proven leadership in housing and redevelopment projects and programs. This award affirms this position by coming from peers. B. CRITICAL ISSUES • N/A C. FINANCIAL • N/A D. LEGAL • N/A IV. ALTERNATIVE RECOMMENDATION(S~ • N/A V. ATTACHMENTS • Copy of award. VI. PRINCIPAL PARTIES EXPECTED AT MEETING • N/A i ~ • ~ ~ ~~~~~N II! ~1-~ ~ 1 N ~~ Ra bu~ld~iig conimun~tles together NATTONAL ASSOCIATION OF HOUSING AND REDEVELOPMENT OFFICIALS 2003 Agency Award of Excellence ~~ in Program Innovation -Community Revitalization to the RICHFIELD HOUSING AND REDEVELOPMENT AUTHORITY for the Woodlake Centre - A New Town Center Be 'ns -~ gt .~. Kurt Creager President ,h ~~~ Saul N. Ramirez jr. Executive Director