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HomeMy WebLinkAbout1998-196 CCRMember Kay Lasman introduced the following resolution and moved its adoption: RESOLUTION NO. 98=196 RESOLUTION AUTHORIZING EXECUTION OF GRANT AGREEMENT END GRANT FOR THE BROOKLYN CENTER EARLE BROWN HERITAGE CENTER RESTORATION PROJECT WHEREAS, attached hereto and incorporated here and by reference as Exhibit A is a proposed grant agreement between the State of Minnesota Department of Administration and the City of Brooklyn Center to receive grant monies authorized by 1998 Minnesota Laws Chapter 404, Section 23, Subdivision 19; and WHEREAS, these grant monies were obtained for the purpose to acquire land and improve it for parking and to design, construct, furnish, and equip an additional building, together with connecting structures and remodeling of existing buildings at the Earle Brown Heritage Center; and WHEREAS„ the terms and conditions set forth in the grant agreement are appropriate. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center that the Mayor and City Manager be and hereby are authorized to execute Grant Agreement End Grant for the Brooklyn Center Earle Brown Heritage Center Restoration Project on behalf of the City of Brooklyn Center. November 9, 1998 Date ATTEST: City Clerk Mayor The motion for the adoption of the foregoing resolution was duly seconded by member Kathleen Carmody and upon vote being taken thereon, the following voted in favor thereof: Myrna Kragness, Kathleen Carmody, Debra Hilstrom, Kay Lasman, and Robert Peppe; and the following voted against the same: none, whereupon said resolution was declared duly passed and adopted. RESOLUTION NO. 98-196 EXHIBIT A GRANT AGREEMENT END GRANT for the Brooklyn Center Earle Brown Heritage Center Restoration PROJECT THIS AGREEMENT shall be effective as of the 9 day of Nov. , 199 and is made and entered into by and between the city of Brooklyn Center, a statutory city (hereinafter referred to as the "Public Entity"), and the Department of Administration (hereinafter referred to as the "State Entity") WHEREAS, under the provisions contained in 1998 Minn. Laws ch. 404, sec. 23, subd. 19, the Public Entity has been given the authority to acquire land and improve it for parking and to design, construct, furnish, and equip an additional building, together with connecting structures and remodeling of existing buildings at the Earle Brown Heritage Center; and WHEREAS, under the provisions contained in 1998 Minn. Laws ch. 404, sec. 23, subd. 19, the State of Minnesota has allocated Two Million Five Hundred Thousand Dollars ($2,500,000.00), which is to be given to the Public Entity as a grant to assist it in the acquisition of land and improvements for parking and in the designing, constructing, furnishing and equiping of an additional building, together with connecting structures and the remodeling of existing buildings at the Earle Brown Heritage Center as authorized by 1998 Minn. Laws ch. 404, sec. 23, subd. 19; and WHEREAS, the monies allocated to fund the grant to Public Entity are the proceeds of state general obligation bonds authorized to be issued under Article XI, § 5(a) of the Minnesota Constitution; and WHEREAS, the Public Entity and the State Entity desire to set forth herein the provisions relating to the granting of such monies and the disbursement thereof to the Public Entity. NOW, THEREFORE, in consideration of the grant described herein, the parties hereto do hereby agree as follows: 1 RESOLUTION NO. 98-196 EXIUBIT A Article I DEFR4MONS Section 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set out respectively after each (such meanings to be equally applicable to both the singular and plural forms of the terms defined), unless the contents hereof specifically indicate otherwise: A. "Agreement" - means this Grant Agreement for the Brooklyn Center Earle Brown Heritage Center Restoration Project. B. "Commissioner's or der" - means that certain "Order Amending Order of the Commissioner of Finance' Relating to Use and Sale _of State Bond Financed Property" executed by the Finance Commissioner on July 20, 1995. C. "Declaration" - means a declaration in the form of Attachment A attached hereto, indicating that the Facility is bond financed property within the meaning of the G.O. Compliance Legislation, and is subject to certain restrictions imposed thereby. D. "Event of Default" - means those events delineated in Section 2.05 hereinbelow. E. "Facility" - means Earle Brown Heritage Center, which is located on the real property located in the County of Hennepin, State of Minnesota, legally described in Attachment B attached hereto and incorporated herein by reference. F. "Fair Market Value" - means; (i) the price that would be paid by a willing and qualified buyer to .a willing and qualified seller as determined by an appraisal which assumes that any and all mortgage liens or encumbrances on the property being sold, which negatively effect the value of the Facility, will be released, or (ii) the price bid by a purchaser under a public bid procedure after reasonable public notice, with the proviso that any and all mortgage liens or encumbrances on the property being sold, which negatively effect the value of the Facility, will be released at the time of acquisition by such purchaser. 2 RESOLUTION NO. QR-t96 EXMIT A G. "Finance Commissioner" - means the State of Minnesota acting through its Commissioner of Finance, and any designated representatives thereof. H. "G.O. Compliance Legislation" - means Minn. Stat. § 16A.695 (1994 1995 Supp.), as such may subsequently be amended, modified or replaced. I. "G.O. Bonds" - means the state general obligation bonds, issued under the authority granted in Article XI, § 5(a) of the Minnesota Constitution, the proceeds of which are used to fund the Grant, or any bonds issued to refund or replace such bonds. J. "Grant" - means a grant of monies from the State Entity to the Public Entity in an amount of Two Million Five Hundred Thousand Dollars ($2,500,000.00). K. "IRS Code" - means the Internal Revenue Code of 1986, as amended from time to time, and all treasury regulations, revenue procedures and revenue rulings issued pursuant thereto. L. "Lessee" - means the entity which the Public Entity contracts with under a Use Contract. M. "Project" - means the acquisition, improvement, renovation, rehabilitation, and/or new construction of the Facility, as specified in Section 2.02 hereinbelow. N. "Public Entity" - means Brooklyn Center, a statutory city. 0. "State Entity" - means the Minnesota Department of Administration. P. "Use Contract" - means a lease, management contract or other. similar contract between Public Entity and any other entity, and which involves or relates to the Facility. Article II GRANT Section 2.01 Grant of Monies. The State Entity shall issue the Grant to the Public Entity, the proceeds of which shall be disbursed in accordance with the provisions contained 3 RESOLUTION NO. W-196 EXIMIT A hereinbelow. The parties hereto do agree and acknowledge that the Grant is not intended to be a loan of monies in any form or manner. Section 2.02 Use of Grant Proceeds. The Public Entity shall use the proceeds of the Grant to; (Check all appropriate lines.) Acquire the Facility, Improve the Facility, Renovate or rehabilitate the Facility, Constrict the Facility, X Acquire land and improve it for parking and to design, construct, famish and equip an additional building, together with connecting structures and the remodeling of existing buildings, in such a manner as will allow the Facility to be operated in the manner specified in Section 2.03 hereinbelow. Section 2.03 Operation of the Facility. The Public Entity shall operate the Facility, or cause it to be operated, as the Earle Brown Heritage Center, or for such other use as the legislature may from time to time designate, and may enter into Use Contracts with Lessees to so operate the Facility; provided that such contracts have been approved, in writing, by the State Entity and the Finance Commissioner. The Public Entity shall also annually determine that the Facility is being so used, and shall supply a statement, sworn to before a notary public, to such effect to both the State Entity and the Finance Commissioner. With respect to any program which will be operated in the Facility, the Public Entity covenants with, and represents and warrants to, the State Entity that (i) it has the ability and a plan to fund the program which will be operated in the Facility, (ii) it demonstrated such ability and supplied such plan to the State Entity prior to the execution of this Agreement, and (iii) it will not enter into a Use Contract with a Lessee unless such Lessee has demonstrated to the State Entity that it has the ability and a plan to fund the program which Lessee intends on operating in the Facility. Section 2.04 Public Entity Representations and Warranties. The Public Entity further covenants with, and represents and warrants to the State Entity as follows: 4 RESOLUTION NO. 98-196 EXIIIBIT A A. It has legal authority to enter into, execute, and deliver this Agreement and the Declaration, and it has taken all actions necessary and incident to its execution and delivery of such documents. B. This Agreement, the Declaration, and any and all other documents referred to herein are the legal, valid and binding obligations of the Public Entity enforceable against the Public Entity in accordance with their respective terms. C. It will comply with all of the terms, conditions, provisions, covenants, requirements, and/or warranties contained in this Agreement, the Declaration, the G.O. Compliance Legislation, and the Commissioner's Order. D. It has made no material false statement, or misstatement of fact, in connection with its receipt of the Grant, and all of the information it previously submitted to the State Entity, or which it will submit to the State Entity in the future, relating to the Grant or the disbursement of any of the proceeds of the Grant, is and will be true and correct. E. It is not in violation of any provisions of its charter, or of the laws of the State of Minnesota, and there are no actions, suits, or proceedings pending, or to its knowledge threatened, before or by any judicial body or governmental authority, against or effecting it relating to the Facility, and it is not in default with respect to any order, writ, injunction, decree, or demand of any court or any governmental authority which would impair its ability to enter into this Agreement and the Declaration, or to perform any of the acts required of it in this Agreement and the Declaration. F. Neither the execution and delivery of this Agreement or the Declaration, nor compliance with any of the terms, conditions, requirements, or provisions contained herein, is prevented by, is a breach of, or will result in a breach of, any term, condition, or provision of any 'agreement or document to which it is now a party, or by which it is bound. G. The Facility has been, or will be: (Check all appropriate lines.) Acquired. Improved. Renovated or rehabilitated. Newly constructed. 5 1 RESOLUTION NO. 98-196 EXIMIT A X Acquired and improved for parking and an additional facility designed, constructed, furnished and equipped, and connecting structures constructed, and e:asting buildings remodeled, All of such has been, or will be, done in such a manner as will allow the Facility to be operated in the manner specified in Section 2.03 hereinabove. H. The Facility and the contemplated use thereof will not violate any applicable zoning or use statute, ordinance, building code, rule or regulation, or any covenant or agreement of record, relating to the Facility. 1. The Project was, or will be, performed and completed in compliance with all applicable laws, statutes, rules, ordinances, and regulations issued by any federal, state, or local political subdivisions having jurisdiction over the Facility. J. All applicable licenses, permits and bonds required for the performance and completion of the Project were, or will be, obtained. K. It will operate, maintain, and manage the Facility in compliance with all applicable laws, statutes, rules, ordinances, and regulations issued by any federal, state, or local political subdivisions having jurisdiction over the Facility. L. It has the following interest in the real ' property and the structures and improvements which are part of the Facility, and, in addition, will possesses any and all easements necessary for the operation, maintenance and management of the Facility in the manner specified in Section 2.03 hereinabove: 6 RESOLUTION NO. 98-196 EXHIBIT A (Check the appropriate line.) Fee simple title to both the real estate and the structures and improvements; or _ A lease on the real estate for a term which is at least as long as the expected useful life of the structures and improvements, and fee simple title to the structures and improvements. M. It will frilly enforce the terms and conditions contained in any Use Contracts to which it is a party. N. It will fully comply with the matching funds requirement, if any, contained in Section 5;21 hereinbelow. 0. It will use the proceeds of any insurance policies on the Facility in accordance with the provisions contained in Section 5.01 hereinbelow. P. It will use the proceeds of any condemnation of the Facility in accordance with the provisions contained in Section 5.02 hereinbelow. Q. It will fully comply with the G.O. Compliance Legislation and the Commissioner's Order. R. It shall furnish such satisfactory evidence regarding the representations and warranties described herein as may be required and requested in writing by either the State Entity or the Finance Commissioner. Section 2.05 Event(s) of Default Any of the following shall, upon either the State Entity or the Finance Commissioner giving the Public Entity thirty (30) days notice thereof, and Public Entity's failure to cure during such time period, constitute an Event of Default under this Agreement. A. If, without the written consent of both the State Entity and the Finance Commissioner and while any G.O. Bonds are outstanding and unpaid, any part of the Facility ceases to be used as the Earle Brown Heritage Center. B. If, without the written consent of both the State Entity and the Finance Commissioner, the Public Entity sells, transfers, teases, encumbers, or otherwise conveys, RESOLUTION NO. 98-196 EXHIBIT A in any way or manner, whether voluntary, involuntary, or by action of law, all or any part of its interest in the Facility, or amends or modifies any agreement relating to such sale which had previously been so consented to and approved of by the Finance Commissioner. C. If, without the written waiver of both the State Entity and the Finance Commissioner and while any G.O. Bonds are outstanding and unpaid, the Public Entity fails to annually determine that the Facility is being used as the Earle Brown Heritage Center as is required under Section 2.03 hereinabove. D. If, without the written waiver of both the State Entity and the Finance Commissioner and while any G.O. Bonds are outstanding and unpaid, the Public Entity fails to annually supply the statement required under Section 2.03 hereinabove to both the State Entity and the Finance Commissioner. E. If, without the written waiver of both the State Entity and the Finance Commissioner and while any G.O. Bonds are outstanding and unpaid, the Public Entity fails to maintain, or cause to be maintained, fire and extended coverage insurance on the Facility in an amount equal to the full insurable value of the Facility. F. If, without the written waiver of both the State Entity and the Finance Commissioner, the Public Entity fails to use the proceeds of any insurance policies on the Facility in accordance with the provisions contained in Section 5.01 hereinbelow, or fails to cause such insurance proceeds to be so used. G. If, without the written waiver of both the State Entity and the Finance Commissioner, the Public Entity fails to use the proceeds of any condemnation of the Facility in accordance with the provisions contained in Section 5.02 hereinbelow, or fails to cause such condemnation proceeds to be so used. H. If the Public Entity, upon request, refuses to allow the State Entity, auditors for the State Entity, the Legislative Auditor for the State of Minnesota, or the State Auditor for the State of Minnesota, to inspect, audit, copy, or abstract, any and all of the Public Entity's books, records, papers, or other documents relevant to the Grant, or the Facility. I. If the Public Entity, while any G.O. Bonds are outstanding and unpaid, refiises to allow the State Entity, after ten (10) days prior written notice, to inspect the Facility. J. If, without the written waiver of both the State Entity and the Finance Commissioner the Public Entity fails to fully enforce any term or provision contained in a Use Contract to which it is a party. 8 RESOLUTION NO. QR-1 Ac, EX MIT A K. If the Public Entity fails to comply with the G.O. Compliance Legislation, or the Commissioner's Order. L. If the Public Entity fails to fully comply with the matching funds requirements, if any, contained in Section 5.21 hereinbelow. M. If any representation, covenant, or warranty made by the Public Entity hereunder shall prove to have been untrue in any material respect, or materially misleading as of the time such representation, covenant, or warranty was made. N. If, without the written consent or waiver of both the State Entity and the Finance Commissioner, the Public Entity fails to fully comply with any provision, term, condition, covenant or warranty contained in this Agreement or the Declaration. Section 2.06 Remedies. Upon the occurrence of an Event of Default the State Entity or the Finance Commissioner may exert any or all of the following remedies. A. The State Entity may refrain from disbursing the proceeds of the Grant. B. The Finance Commissioner, as a third party beneficiary of this Agreement, may demand that all of the proceeds of the Grant already disbursed to the Public Entity be returned to it, and upon such demand the Public Entity shall return such proceeds to the Finance Commissioner. C. Both the State Entity and the Finance Commissioner, as a third party beneficiary of this Agreement, may exert any additional remedies they may have in law or equity. Section 2.07 Notification of Event of Default. The Public Entity shall fiunish to both the State Entity and the Finance Commissioner, as soon as possible and in any event within seven (7) days after it -has obtained knowledge of the occurrence of each Event of Default, or each event which with the giving of notice or lapse of time or both would constitute an Event of Default, a statement setting forth details of each Event of Default, or event which with the giving of notice or upon the lapse of time or both would constitute an Event of Default, and the action which the Public Entity proposes to take with respect thereto. Section 2.08 Termination of Grant and Grant Agreement. If the proceeds of the Grant are not fully disbursed in accordance with the provisions contained in Article IV hereinbelow on or before first day of June, 1999, or such later date as the Public Entity and the State Entity may agree to in writing, then; (i) the State Entity's obligation to disburse any remaining portion of the Grant shall terminate, and (ii) if none of the Grant has been disbursed then this Agreement shall terminate and no longer be of any force or effect. 9 RESOLUTION NO. 98-196 EXHIBIT A This Agreement shall also terminate and no longer be of any force or effect upon the sale of the Facility in accordance with the provisions contained in Section 3.05 hereinbelow, and transmittal of all or a portion of the proceeds of such sale to the Finance Commissioner in compliance with the provisions contained in Section 3.06 hereinbelow. Section 2.09 Effect of Event of Default. If an Event of Default occurs and the Public Entity is required to and does return the amount specified in Section 2.063 hereinabove to the Finance Commissioner, then the following shall occur. A. The Finance Commissioner shall, as soon as legally possible, use such amount to redeem the G.O. Bonds. B. The provisions, covenants, representations and/or warranties contained in Sections 2.03, 2.04.G through 2.04.N, 2.05.A, 2.05.C, 2.05.1), 2.05.1, 2.05.J, 2.051, 2.063, 3.03, 3.04, 3.05.A, 4.01, 4.02, 5.06 through 5.09, and 5.21 herein shall terminate and no longer be of any force or effect; provided that all other Sections and provisions contained in this Agreement shall survive and remain in full force and effect. C. The amount returned by the Public Entity shall be credited against any amount which shall be due to the Finance Commissioner under Section 3.06 hereinbelow, and against any amount that becomes due and payable because of any other Event of Default. Article III COMPLIANCE WITH G.O. COMPLIANCE LEGISLATION AND THE COMNIISSIONER'S ORDER Section 3.01 State Bond Financed Property. The Public Entity and the State Entity acknowledge and agree that the Facility is "state bond financed property", as such term is used in the G.O. Compliance Legislation and the Commissioner's Order, and, therefore, the provisions contained in such statute and order apply to the Facility and any Use Contracts relating thereto. Section 3.02 Preservation of Tax Exempt Status. In order to preserve the tax exempt status of the G.O. Bonds, the Public Entity agrees that during the time period that any G.O. Bonds are outstanding and unpaid: A. It will not use the Facility, or use or invest any proceeds of the Grant or any other sums treated as "bond proceeds" under § 148 of the IRS Code including "investment proceeds," "invested sinking fimds," and "replacement proceeds," in such a manner as to cause the G.O. Bonds to be classified as "arbitrage bonds" under § 148 of the IRS Code. 10 RESOLUTION NO. 98-196 EXIT A B. It will deposit and hold any and all proceeds of the Grant which it receives under this Agreement into a.segregated non-interest bearing account until such funds are used for payments for the Project in accordance with the provisions contained herein. C. It will, upon written request, provide the Finance Commissioner any and all information required to satisfy the informational requirements set forth in the IRS Code including, but not limited to, 103 and 148 thereof. D. It will, upon direction from the Finance Commissioner, take such actions and furnish such documents as the Finance Commissioner determines to be necessary to ensure that the interest to be paid on the G.O. Bonds is exempt from federal taxation, which such action may include either; (i) compliance with proceedings intended to classify the G.O. Bonds as a "qualified bond" within the meaning of IRC § 141(e), (ii) changing the nature and/or terms of the Use Contract so that it complies with Revenue Procedure 93-19, or (iii) compliance with Internal Revenue Code provisions, regulations, or revenue procedures which amend or supersede the foregoing. E. It will not otherwise use any of the proceeds of the Grant, including earnings thereon, if any, or take, or permit to or cause to be taken, any action that would adversely affect the exemption from federal income taxation of the G.O. Bonds, nor otherwise omit, take or cause to be taken any action necessary to maintain such tax exempt status, and if it should take, permit, omit to take, or cause to be taken, as appropriate, any such action,, it shall take all lawful actions necessary to rescind or correct such actions or omissions, promptly upon having knowledge thereof. Section 3.03 Use Contracts. Each and every Use Contract which the Public Entity enters into must comply with the following requirements: A. It must* contain a provision delineating the statutory authority under which the -Public Entity is entering into and executing the Use Contract, and must comply with the substantive and procedural provisions of such statute. B. It must contain a provision stating that the Use Contract is being executed and entered into in order to carry out a specific governmental purpose, and must delineate such governmental purpose. C. It must be for a term, including any renewals that are solely at the option of the Lessee, that is substantially less than the useful life of the Facility, but may allow for renewals beyond the original term upon a determination by the Public Entity that the use 11 RESOLUTION NO. 98-196 EXMIT A continues to carry out a specific governmental purpose, and must delineate such governmental purpose. A term which is equal to or shorter than fifty percent (501/o) of the useful life of the Facility will meet the requirement that it be for a time period which is. substantially shorter than the useful life of the Facility. D. It must contain a provision which will provide for'oversight by the Public Entity. Such oversight may be accomplished by way of a provision that will require the Lessee to provide to the Public Entity; (i) an initial program evaluation report, and (ii) a program bt;idget, at least annually, showing forecast program revenues and expenses for the next fiscal year. E. It must allow for termination by the Public Entity in the event of a default thereunder by the Lessee, or in the event that the governmental purpose delineated in the Use Contract is terminated or changed F. It must require the Lessee to pay all costs of operation and maintenance of the Facility, unless thq Public Entity is authorized by law to pay such costs and agrees to pay such costs. G. If any monies are to be paid to the Public Entity under the Use Contract, then it must contain a provision requiring that each and every party thereto shall, upon direction by the Finance Commissioner, take such actions and furnish such documents to the Finance Commissioner as it determines to be necessary to ensure that the interest to be paid on the G.O. Bonds is exempt from federal income taxation. H. It must be approved, in writing, by the Finance Commissioner, and any proposed Use Agreement which is not approved, in writing, by the Finance Commissioner shall be null and void and of no force or effect. I. If the amount of the Grant exceeds of Two Hundred Thousand and No/100 Dollars ($200,000.00), then it must contain a provision requiring the Lessee, for one year from the date of the Use Contract, to list any vacant or new positions it may have with job services of the Commissioner of Economic Security for the State of Minnesota, or the local service units, as required by Minn. Stat. § 268.66 Subd. 1 (1994), as such may subsequently be amended, modified or replaced Section 3.04 Receipt of Monies Under a Use Contract If the Public Entity receives any monies under a Use Contract while any G.O. Bonds are outstanding, then a portion of such monies in excess of the amount the Public Entity needs, and is authorized to use, to pay the 12 RESOLUTION NO. 98-196 . EXFIIBIT A operating expenses of the Facility, or to pay the principal, interest, redemption premiums, and other expenses on debt related to the Facility, other than the debt on the G.O. Bonds and debt for which the Public Entity has no financial liability, must be paid by the Public. Entity to the _ Finance Commissioner. The portion of such excess monies that the Public Entity shall pay to the Finance Commissioner shall be determined and established by the Finance Commissioner, and, absent circumstances which would indicate otherwise, such portion shall be determined by multiplying such excess amount by a fraction the numerator of which is the. amount of G.O. Bonds, and the denominator of which is the total principal amount of all public debt financing incurred with respect to the Facility other than public debt issued by a public entity for which it has no financial liability. Section'3.05 Sale of Facility. The Public Entity may not, and shall not, sell the Facility unless all of the following provisions have been fully complied with. A. The Public Entity determines, by official action, that it is no longer usable or needed as the Earle Brown Heritage Center, B. The sale is made as authorized by law. C. The sale is for Fair Market Value. D. The written consent of the Finance Commissioner has been obtained. The acquisition of the Facility at a foreclosure sale, acceptance of a deed-in-lieu of foreclosure for the Facility, and/or enforcement of a security interest in personal property used in the operation of the Facility, by a lender that has provided monies for the acquisition or betterment of the Facility shall not be considered a sale of the Facility for the purposes of this Agreement if after its acquisition of the Facility such lender operates the Facility in a manner which is not inconsistent with the governmental program specified in Section 2.03 hereinabove and such lender uses its best efforts to sell the Facility to a third party for Fair Market Value. The ultimate sale and/or disposition of the Facility by the lender shall be deemed to be a sale of the Facility for the purposes of this Agreement, and the proceeds thereof shall be disbursed in accordance with the provisions contained in Section 3.06 hereinbelow. Section 3.06 Proceeds of a Sale. Upon the sale of the Facility. the net proceeds thereof shall be disbursed in the following manner and order. A. The first distribution from such net proceeds shall be to the Finance Commissioner in an amount equal to the amount of the Grant, and if the amount of such net 13 RESOLUTION NO. 98-196 EXIMIT A proceeds shall be less than the amount of the Grant then all of such net proceeds shall be distributed to the Finance Commissioner. B. The remaining portion of such net proceeds, after the distribution specified in Section 3.06.A hereinabove, shall be distributed to pay in full any outstanding public or private debt incurred to acquire or better the Facility. . C. The remaining portion of such net proceeds, after the distributions specified in Sections 3.06.A & B hereinabove, shall be divided and distributed in proportion to the shares contributed to the acquisition or betterment of the Facilities by public and private entities, including the State Entity but not including any private entity that has been paid in full, that supplied funds in either real monies or like kind contributions for such acquisition and' betterment, and the State Entity's distribution shall be made to the Finance Commissioner. Such public and private entities may agree amongst themselves as to any redistribution of such distributed funds. The Public Entity shall not be required to pay or reimburse the State Entity for any funds, above and beyond the full net proceeds of such sale, even if such net proceeds are less than the. amount of the Grant, and are.insufficient to redeem or defease the outstanding G.O. Bonds. Section 3.07 Changes to G.O. Compliance Legislation or the Commissioner's Order. In the event that the G.O. Compliance Legislation and/or the Commissioner's Order are amended in a manner which reduces any requirement imposed against the Public Entity, or if the Facility is exempted from the G.O. Compliance Legislation and the Commissioner's Order, then the State Entity shall, upon written request by the Public Entity, enter into and execute an amendment to this Agreement to implement herein such amendment to, or exempt the Facility from, the G.O. Compliance Legislation or the Commissioner's Order. Article IV DISBURSEMENT OF GRANT PROCEEDS Section 4.01 Disbursement of Grant. Upon compliance with the conditions delineated in Section 4.02 hereinbelow, the State Entity shall disburse the entire proceeds of the Grant to the Public Entity. Section 4.02 Condition Precedent to Disbursement of Grant. The obligation of the State Entity to disburse the proceeds of the Grant to the Public Entity is subject to the condition 14 RESOLUTION NO. 98-196 E3CHM T A precedent that the State Entity shall have received the following on or before the date of such disbursement: A. The Declaration duly executed by the Public Entity. B. A draw requisition, duly executed on behalf of the Public Entity; (i) describing, in detail, what the proceeds of the Grant wiH be used to pay for (i.e. acquisition, improvement, renovation, rehabilitation, or new construction of the Facility), and (ii) containing a certification that the value of such work or activity is equal to or greater than the amount of the proceeds of the Grant. C. If the Facility was improved, renovated, rehabilitated, or newly constructed, then evidence that; (i) such improvement, renovation, rehabilitation, or new construction was performed in a manner that will allow for the Facility to be operated in the manner specified in Section 2.03 hereinabove, and (ii) all required building permits and other permits for such improvement, renovation, rehabilitation or new construction were obtained. D. A "Certificate of Occupancy" from the applicable local municipality, or such other type or form of certificate as is customarily issued by such municipality, indicating that the Facility may be occupied, used and operated -in the manner specified in Section 2.03 hereinabove. E. Evidence that the Facility and the contemplated use thereof are permitted by and comply with all applicable use or other restrictions and requirements imposed by applicable zoning ordinances or regulations, and have been duly approved by the applicable municipal or governmental authorities having jurisdiction. F. Evidence that all applicable licenses, permits, and bonds required for the performance and completion of the Project have been obtained. G. Evidence that the Public Entity has fee simple title to the real property upon ;which the Facility is situated. H. Evidence that the policies of insurance required under Section 5.01 hereinbelow are in full force and effect. I. Evidence of compliance with the provisions and requirements specified in Section 5.09 hereinbelow, and any and all additional applicable provisions and requirements contained in Minn. Stat. § 16B.335 (1994 & 1995 Supp.), as such may subsequently be amended, modified or replaced. 15 RESOLUTION NO. 98-196 EXMITA J. Evidence that the Public Entity has the ability and a plan to fund the program which will be operated in the Facility. K. Evidence that the Public Entity has fully complied with the matching funds requirements, if any, contained in Section 5.21 hereinbelow. Article V MISCELLANEOUS Section 5.01 Insurance. The Public Entity shall maintain, or cause to be maintained, builders risk insurance and standard fire and extended coverage insurance on the Facility in an amount equal to the full insurable value thereof, and shall name the State Entity as loss payee thereunder. If the Public Entity elects to maintain general comprehensive liability insurance on the Facility, then the Public Entity shall have the Finance Commissioner named as an additional named insured therein. At the written request of either the State Entity or the Finance Commissioner, the Public Entity shall promptly furnish to the requesting entity all written notices and all paid premium receipts received by the Public Entity regarding such required insurance, or certificates of insurance evidencing the existence of such required insurance. If damages which are covered by the insurance required 'hereinabove occurs to the Facility, then the Public Entity shall, at its sole option and discretion, either (i) use the insurance proceeds, or cause the insurance proceeds to be used, to fully or partially repair such damage and to provide, or cause to be provided, whatever additional funds which may be needed to fully or partially repair such damage, or (ii) sell the damaged Facility in accordance with the provisions contained in Section 3.05 hereinabove. If the Public Entity elects to only partially repair such damage, then the portion of the insurance proceeds which are not used for such repair shall be applied in accordance with the provisions contained in Section 3.06 hereinbelow as if the Facility had been sold, and such amounts shall be credited against the amounts due and owing under Section 3.06 upon the ultimate sale of the Facility. If the Public Entity elects to sell the damaged Facility, then such sale must occur within a reasonable time period from the date the damage occurred and the cumulative sum of the insurance proceeds plus the proceeds of such sale must be applied in accordance with the provisions contained in Section 3.06 hereinabove, with the insurance proceeds being so applied within a reasonable time period from the date they are received by the Public Entity. 16 RESOLUTION NO. 98-196 EXIMIT A Section 5.02 . Condemnation. If all or any portion of the Facility is condemned, then the Public Entity shall, at its sole option and discretion, either (i) use the condemnation proceeds, or cause the condemnation proceeds to be used, to fully or partially restore the Facility and to _ provide, or cause to be provided, whatever additional funds which may be needed to fully partially restore the Facility, or. (ii) sell the remaining portion of the Facility in accordance with the provisions contained in Section 3.05 hereinabove. If the Public Entity elects to only partially restore the Facility, then the portion of the condemnation proceeds which are not used for such restoration shall be applied in accordance with the provisions contained in Section 3.06 hereinbelow as if the Facility had been sold, and such amounts shall be credited against the amounts due and owing under Section 3.06 upon the ultimate sale of the Facility. If the Public Entity elects to sell the remaining portion of the Facility, then such sale must occur within a reasonable time period from the date the condemnation occurred and the cumulative sum of the condemnation proceeds plus the proceeds of such sale must be applied in accordance with the provisions contained in Section 3.06 hereinabove, with the condemnation proceeds being so applied within a reasonable time period from the date they are received by the Public Entity. Section 5.03 Records Keeping and Reporting. The Public Entity shall maintain, or cause to be maintained, books, records, documents and other evidence pertaining to the costs or expenses associated with the Project, and compliance with the requirements contained in this Agreement, the Declaration, the G.O. Compliance Legislation, and the Commissioner's Order, and upon request shall allow, or cause the entity which is maintaining such items to allow, the State Entity, auditors for the State Entity, the Legislative Auditor for the State of Minnesota, or the State Auditor for the State of Minnesota, to inspect, audit, copy, or abstract, any and all of its books, records, papers, or other documents relevant to the Grant. The Public Entity shall use, or cause the entity which is maintaining such books and records to use, generally accepted accounting principles in the maintenance of such books and records, and shall retain, or cause to be retained, all of such books, records, documents and other evidence for a period of five (5) years from the date that the Facility is fully completed and placed into operation. Section 5.04 Inspection of Facility. The Public Entity shall, upon request, allow, and will require any entity to whom it leases any portion of the Facility to allow, the State Entity to inspect the Facility. Section 5.05 Data Practices. The Public Entity agrees, with respect to any data which it possesses regarding the Grant, the Project, or the Facility, to comply with all of the provisions 17 RESOLUTION NO. 93-196 EX MIT A and restrictions contained in the Minnesota Government Data Practices Act contained in Chapter 13 of the Minnesota Statutes, as such may be amended, modified or replaced. The Public Entity further agrees to indemnify, save, and hold the State Entity, the Finance Commissioner, and the State of Minnesota, their agents and employees, harmless from all claims arising out of, resulting from, or in any manner attributable to any violation of any provision of the Minnesota Government Data Practices Act, including legal fees and disbursements paid or incurred to enforce the provisions contained in this Section. • Section 5.06 Non-Discrimination. The Public Entity agrees to not engage in discriminatory employment practices with respect to the Project, and it shall, with respect thereto, fully comply with all of the provisions contained in Minn. Stat. 363.03 & 181.59 (1994 & 1995 Supp.), as such may subsequently be amended, modified or replaced. Section 5.07 Worker's Compensation. The Public Entity agrees to fully comply with all of the provisions relating to worker's compensation contained in Minn. Stat. 176.181 Subd. 2, & 176.182 (1994 & 1995 Supp.), as such may subsequently be amended, modified or replaced, with respect to the Project. Section 5.08 Antitrust Claims. The Public Entity hereby assigns to the State Entity and the Finance Commissioner any and all claims it may have for over charges as to goods and/or services provided in conjunction with the Project which arise under the antitrust laws of the State of Minnesota or of the United States of America. Section 5.09 Review of Plans and Cost Estimates. The Public Entity and the State Entity agree to comply with all of the applicable provisions and requirements contained in Minn. Stat. § 16B.335 (1994 & 1995 Supp.), as such may subsequently be amended, modified or replaced, for the Project, and in accordance therewith the Public Entity and the State Entity agree to comply with the following provisions and requirements. A. The Public Entity shall provide any and all information which the State Entity may request in order for the State Entity, to determine that the Project will comply with the provisions and requirements contained in Minn. Stat. § 16B.335 (1994 & 1995 Supp.), as such may subsequently be amended, modified or replaced. B. The Public Entity shall, prior to its proceeding with design activities for the Project, prepare a predesign package and submit it to the Commissioner of Administration for the State of Minnesota for review and comment. Such predesign package must be sufficient to define the scope, cost, and projected schedule for the Project, and must 18 RESOLUTION NO. 96-196 EXIiIBIT A demonstrate that the Project has been analyzed according to appropriate space and needs standards. Any substantial changes to such predesign package must be submitted to the Commissioner of Administration for the State of Minnesota for review and comment. C. If the Project includes the construction of a new building, substantial alteration of the exterior dimensions or interior configuration of an existing building, or the acquisition of land, then the Public Entity. shall not prepare final plans and specifications until it has prepared a program plan and cost estimates for all elements necessary to complete the Project and presented them to the Chairs of the Minnesota State Senate Finance Committee and Minnesota House of Representatives Ways and Means Committee and such chairs have made their recommendations, and it has notified the. Chair of the Minnesota House of Representatives Capital Investment Committee. Such program plan and cost estimates must note any significant changes in the work to be performed on the Project, or in its costs, which have arisen since the appropriation for the Project was enacted or which differ from any predesign submittal. Provided, however, the provisions and requirements contained in this Section 5.09.C shall not apply to the construction, renovation, or improvements to dams, highway rest areas, truck stations, storage facilities not consisting primarily of offices or heated work areas, trails, bike paths, sewer separation projects, water and wastewater facilities, campgrounds, roads, bridges, or any. other capital project with a construction cost of less than Two Hundred Thousand and No/100 Dollars ($200,000.00). D. The Public Entity must notify the Chairs of the Minnesota State Senate Finance Committee, the Minnesota House of Representatives Capital Investment Committee and the Minnesota House of Representatives Ways and Means Committee of any significant changes to the program plan and cost estimates referred to in Section 5.09.C hereinabove. E. The program plan and cost estimates referred to in Section 5.09.C hereinabove must ensure that the Project will comply with all applicable. energy conservation standards contained in law, including Minn. Stat. 216C.19 to 216C.21 (1994 & 1995 Supp.), as such may subsequently be amended, modified or replaced. F. If any of the proceeds of the Grant are to be used for the construction or remodeling of the Facility, then both the predesign package referred to in Section 5.093 hereinabove and the program plan and cost estimates referred to in Section 5.09.C hereinabove must include provisions for cost-effective information technology investments 19 RESOLUTION NO. qR- E,N=IT A that will enable the occupant of the Facility to reduce its need for office space, provide more of its services electronically, and decentralize its operations where such provisions are deemed necessary by the Information Policy Office of the Department of Administration for the State of Minnesota. G. If the Project does not involve the construction of a new building, the substantial alteration of the exterior dimensions or interior configuration of an existing building, or the acquisition of land, then prior to beginning work on the Project the Public Entity shall just notify the Chairs of the Minnesota State Senate Finance Committee, the Minnesota House of Representatives Capital Investment Committee and the Minnesota House of Representatives Ways and Means Committee that the work to be performed is ready to begin. H. The Project must be; (i) completed in accordance with the program plan and cost estimates referred to in Section 5.09.C hereinabove, (ii) completed in accordance with the time schedule contained in the program plan referred to in Section 5.09.C hereinabove, and (iii) completed within the budgets contained in the cost estimates referred to in Section 5.09.C hereinabove. I. The proceeds of the Grant will not be disbursed until (i) the predesign package referred to in Section 5.093 hereinabove has been reviewed by and received a favorable recommendation from the Commissioner of Administration for the State of Minnesota, (ii) the program plan and cost estimates referred to in Section 5.09.C hereinabove have received a recommendation by -the Chairs of the Minnesota State Senate Finance Committee and Minnesota House of Representatives Ways and Means Committee, and (iii) the Chair of the Minnesota House of Representatives Capital Investment Committee has been notified puisuant to Section 5.09.G hereinabove. Section 5.10 Prevailing Wages. The Public Entity agrees to comply with all of the applicable provisions contained in Chapter 177 of the Minnesota Statutes; and specifically those provisions contained in Minn. Stat. 177.41 through 177.43 (1994), as such may subsequently be amended, modified or replaced. Section 5.11 Liability. The Public Entity and the State Entity do both agree that they will be responsible for their own acts and the results thereof to the extent authorized by law, and they shall not be responsible for the acts- of the other party and the results thereof. The Public Entity - acknowledges and agrees that the -liability of both the State Entity and the Finance 20 RESOLUTION NO. 98-196 EXMBIT A Commissioner is governed by the provisions contained in Minn. Stat. § 3.736 (1994), as such may subsequently be amended, modified or replaced. Section 5.12 Relationship of the Parties. Nothing contained in this Agreement is intended or should be construed in any manner as creating or establishing the relationship of co- partners or a joint venture between the Public Entity, the State Entity, or the Finance Commissioner, nor shall the Public Entity be considered or deemed to be an agent, representative, or employee of either the State Entity, the Finance Commissioner, or the State of Minnesota in the performance of this Agreement, the completion of the Project, or operation of the Facility. The Public Entity represents that it has already secured, or will secure or cause to be secured, all personnel and/or persons required for the performance of this Agreement and the completion of the Project. Any and all personnel of the Public Entity, or other persons, while engaging in the performance of this Agreement, the completion of the Project, or the operation and/or maintenance, of the Facility, shall not have any contractual relationship with either the State Entity, the Finance Commissioner, or the State of Minnesota, and shall not be considered employees of any such entities. In addition, any and all claims that may or might arise on behalf of said personnel or other persons while so engaged arising out of employment, or alleged employment, including, but not limited to, claims under the Workers' Compensation Act of the State of Minnesota, claims of discrimination against the Public Entity, its- officers, agents, contractors, or employees shall in no way be the responsibility of either the State Entity, the Finance Commissioner, or the State of Minnesota. Such personnel or other persons shall not require nor be entitled to any compensation, rights or benefits of any kind whatsoever from either the State Entity, the Finance Commissioner, or the State of Minnesota, including, but not limited to, tenure rights, medical and hospital care, sick and vacation leave, Workers' Compensation, Unemployment Compensation, disability benefits, severance pay and retirement benefits. Section 5.13 Notices. In addition to any notice required under -applicable law to .be given in another manner, any notices required hereunder must be in writing, and shall be sufficient if personally served or sent by prepaid, registered, or certified mail (return receipt requested), to the business address of the party to whom it is directed. Such business address shall be that address specified hereinbelow, or such different address as may hereafter be specified, by either party by written notice to the other. 21 RESOLUTION NO. 98-196 To the Public Entity at: City of Brooklyn Center 6301 Shingle Creek Parkway Brooklyn Center, MN 55430 Attention: Michael McCauley, City Manager To the State Entity at EX MIT A Department of Administration ' 200 Administration Building 50 Sherburne Avenue St. Paul, MN 55155 Attention: Lang Freund, Financial Management & Reporting Director To the Finance Commissioner at: Minnesota Department of Finance 400 Centennial Office Bldg. 658 Cedar St. St. Paul, MN 55155 Attention: Commissioner of Finance Section 5.14 Assignment or Modification. This Agreement and the Declaration shall be binding upon and inure to the benefit of the Public Entity and the State Entity, and their 22 RESOLUTION NO. qq-l 9 EXIMIT A respective successors and assigns. Provided, however, that neither the Public Entity nor the State Entity may assign any of its rights or obligations under this Agreement or the Declaration without the prior written consent of the other party. No change or modification of the terms or provisions of this Agreement or Declaration shall be binding on either the Public Entity or the State Entity unless such change or modification is in writing and signed by an authorized official of the party against which such change or modification is to be imposed. Section 5.15 Waiver. Neither the failure by the Public Entity, the State Entity, or the Finance Commissioner, as a third party beneficiary of this Agreement, in any one or more instances, to insist upon the complete and total observance or performance of any term or provision hereof, nor the failure of the Public Entity, the State Entity, or the rinance Commissioner, as a third party beneficiary of this Agreement, to exercise any right, privilege, or remedy conferred hereunder, or afforded by law, shall be construed as waiving any breach of such term, provision, or the right to exercise such right, privilege, or remedy thereafter. In addition, no delay on the part of either the Public Entity, the State Entity, or the Finance Commissioner, as a third party beneficiary of this Agreement, in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude other or further exercise thereof, or the exercise of any other right or remedy. Section 5.16 Entire Agreement. This Agreement and the Declaration embody the entire agreement between the Public Entity and the State Entity, and there are no other agreements, either oral or written, between the Public Entity and the State Entity on the subject matter hereof. Section 5.17 Choice of Law and Venue. All matters, whether sounding in tort or in contract, relating to the validity, construction, performance, or enforcement of this Agreement or the Declaration shall be controlled by and determined in accordance with the laws of the State of Minnesota. Public Entity agrees and consents that all legal actions initiated with respect to or arising from any provision contained in this Agreement shall be initiated, filed and venued in the State of Minnesota District Court located in the City of St. Paul, County of Ramsey, State of Minnesota. Section 5.18 Severability. If any term or provision of this Agreement is finally judged by any court to be invalid, the remaining terms ' and provisions shall remain in full force and effect, and they shall be interpreted, performed, and enforced as if said invalid provision did not appear herein. 23 RESOLUTION NO. 98-196 EXHIBIT A Section 5.19 Time of Essence. Time is of the essence with respect to all of the matters contained in this Agreement. Section 5.20 Counterparts. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original, but such counterparts shall together constitute one and the same instrument. Section 5.21 Matching Funds. The Public Entity must obtain and supply the following matching funds, if any, for the completion of the Project: NONE 1 Any and all matching funds which are intended to meet the above delineated requirements must either be in the form of (i) cash monies, (ii) legally binding commitments for monies, or (iii) equivalent funds or contributions, including equity, which have been, or will be, used to complete and/or pay for the Project. , Section 5.22 Third-Party Beneficiary. The Public Entity and the State Entity agree that the public program to be operated in conjunction with the Facility will benefit the State of Minnesota, and the provisions and requirements contained herein are for the benefit of both the State Entity and the State of Minnesota. Therefore such entities acknowledge and agree that the State of Minnesota, by and through its Commissioner of Finance, is and shall be a third-party beneficiary of this Agreement. Section 5.23 Additional Requirements. The Public Entity and the State Entity agree to comply with the following additional requirements. NONE (THE REMAINING PORTION OF THIS PAGE WAS INTENTIONALLY LEFT BLANK) 24 RESOLUTION NO. 98-1% EXHIBIT A IN TESTIMONY HEREOF, the Public Entity and the State Entity have executed this Grant Agreement on the day and date indicated immediately below their respective signatures. PUBLIC ENTITY: City of Brooklyn Center, a statutory city. By: Its: And: Its: STATE ENTITY: Minnesota Department of.Administration, 1 By: Its: Approved as to form and execution: Assistant Attorney General Approved by Department of Finance 25 RESOLUTION NO. 98-196 EXHIBIT A Exhibit A DECLARATION The undersigned, as owner of fee title to the real property legally described on Exhibit A, which is attached hereto and made a part hereof ("Property"), hereby declares that title to the Property is hereby subject to the following restriction: The Property is bond financed property within the meaning of Minn. Stat. § 16A.695, as amended from time to. time, is subject to the encumbrance created and requirements imposed thereby, and cannot be sold or otherwise disposed of by the public officer or agency which has jurisdiction over it or owns it without the approval of the Minnesota Commissioner of Finance, which approval must be evidenced by a written statement signed by the Commissioner of Finance and attached to the deed or instrument used to sell or otherwise dispose of the Property. Title to the Property shall remain subject to this restriction until; (i) the restriction has been fully complied with as. evidenced by a written approval from the Minnesota Commissioner of Finance, or (ii) a written release, releasing the Property from the restriction, signed by the Minnesota Commissioner of Finance, is recorded in the real estate records relating to the Property. (SIGNATURE BLOCK AND ACKNOWLEDGMENT) This Declaration was drafted by: Marlys Christofferson Department of Administration 309 Administration Building 50 Sherburne Avenue St. Paul, MN 55155 26 gESOLtJ'noN NO. EX~gIT A Exhibit B IAGAI,DESCRTI~N 1 27