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Home My WebLink About2004 07-12 CCP Regular Session Public Copy AGENDA CITY COUNCIL STUDY SESSION July 12, 2004 6:00 P.M. City Council Chambers 1. City Council Discussion of Agenda Items and Questions 2. Miscellaneous 3. Discussion of Work Session Agenda Items as Time Permits 4. Adjourn I CITY COUNCIL MEETING City of Brooklyn Center July 12, 2004 AGENDA L Informal Open Forum With City Council 6:45 p.m. —provides an opportunity for the public to address the Council on items which are not on the agenda. Open Forum will be limited to 15 minutes, it is not televised, and it may not be used to make personal attacks, to air personality grievances, to make political endorsements, or for political campaign purposes. Council Members will not enter into a dialogue with citizens. Questions from the Council will be for clarification only. Open Forum will not be used as a time for problem solving or reacting to the comments made but, rather, for hearing the citizen for informational purposes only. 2. Invocation 7 p.m. 3. Call to Order Regular Business Meeting —The City Council requests that attendees turn off cell phones and pagers during the meeting. 4. Roll Call 5. Pledge of Allegiance 6. Council Re ort P 7. Approval of Agenda and Consent Agenda —The following items are considered to be routine by the City Council and will be enacted by one motion. There will be no separate discussion of these items unless a Councilmember so requests, in which event the item will be removed from the consent agenda and considered at the end of Council Consideration Items. a. Approval of Minutes —Councilmembers not present at meetings will be recorded as abstaining from the vote on the minutes. L June 28, 2004 Study Session 2. June 28, 2004 Regular Session 3. June 28, 2004 Work Session b. Licenses c. Resolution Declaring a Public Nuisance and Ordering the Removal of Diseased Trees d. Resolution Setting Courtesy Bench Inspection and Permit Fees and Establishing Corridors Prohibiting Courtesy Benches for 2005-20Q6 e. Approval to Dispose of Surplus Hose to Small Fire Departments in the State of Minnesota CITY COITNCIL AGENDA -2- July 12, 2004 8. Public Hearings a. An Ordinance Amending Ordinance No. 2002-11 Regarding Council Salaries for 2005-2006 —This item was approved for first reading on June 14, 2004; published in the official newspaper on June 24, 2004; and is offered this evening for a second reading and public hearing. •Requested Council Action: —Motion to open Public Hearing. —Take public input. —Motion to close Public Hearing. —Motion to adopt ordinance. b. An Ordinance Relating to City Government; Amending Seetion 3.10 of the Brooklyn Center City Charter —This item was approved for first reading on June 14, 2004; published in the official newspaper on June 24, 2004; and is offered this evening for a second reading and public hearing. •Requested Council Action: —Motion to open Public Hearing. —Take public input. —Motion to close Public Hearing. —Motion to adopt ordinance. c. An Ordinance Relating to the Licensing of Taxicabs; Amending Brooklyn Center City Code Sections 23-702, 23-703, and 23-204 and Adding New Sections 23-706, 23-707, 23-708, 23-709, 23-710, 23-711, and 23-712 —This item was approved for first reading on June 14, 2004; published in the official newspaper on June 24, 2004; and is offered this evening for a second reading and public hearing. •Requested Council Action: —Motion to open Public Hearing. —Take public input. —Motion to close Public Hearing. —Motion to adopt ordinance. 9. Council Consideration Items a. Staff Report of Status on Traffic Study Along Brooklyn Boulevard Between 49�' Avenue North and T.H. 100 •Requested Council Action: -None, report only. b. Mayoral Appointment to Planning Commission •Requested Council Action: -Motion to ratify Mayoral nomination. 10. Adjournment City Council Agenda Item No. 7a i MINUTES OF THE PROCEEDINGS OF THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER 1N THE COUNTY OF HENNEPIN AND THE STATE OF MINNESOTA STUDY SESSION CITY HALL COUNCIL CHAMBERS JLTNE 28, 2004 CALL TO ORDER STUDY SESSION The Brooklyn Center City Council met in Study Session and was called to order by Mayor Myrna Kragness at 6:03 p.m. ROLL CALL Mayar Myrna Kragness, Councilmembers Kathleen Carmody, Kay Lasman, Diane Niesen, and Bob Peppe. Also present were City Manager Michael McCauley, Assistant City Manager/Director of Operations Curt Boganey, Police Chief Scott Bechthold, Fiscal and Support Services Director Dan Jordet, and Deputy City Clerk Maria Rosenbaum. City Attorney Charlie LeFevere arrived at 6:40 p.m. CITY COUNCIL DISCUSSION OF AGENDA ITEMS AND QUESTIONS City Manager Michael McCauley informed that the Auditors were available if the Council would like a presentation before the Regular meeting. It was the consensus of the Council for the Auditors to make a presentation to the CounciL Dave Mol and Jeff Wilson from HLB Tautges Redpath, Ltd. addressed the Council to report on the Comprehensive Annual Financial Report; State Legal Compliance Report, Report on Internal Control, and the Management Letter. During their discussions, it was noted that the Comprehensive Annual Financial Report had a clean opinion for 2003 and that the City received an award far "Excellence in Financial Reporting". Mr. Mol informed that the most significant changes to the financial statements with GASB 34 are as follows: Government-wide financial statements Fund Financial Statements Budgetary Comparisons All Capital Assets Management's Discussion and Analysis 06/28/04 -1- DRAFT Mr. Mol discussed that the State Legal Compliance Report Audit Guide covers six of the following categories: cantracting and bidding; deposits and investments; conflicts of interest; public indebtedness; claims and disbursement; and other miscellaneous provisions. As part of those six categories there were no compliance findings. Mr. Mol discussed that the Report on Internal Control is based on inquires and observations and identifies reportable conditions. There were no reportable conditions noted in 2003. Mr. Wilson discussed the Management Letter and outlined the All Funds Summary, General Fund, Working Capital Reserve, Special Revenue Funds, Debt Service Funds, Capital Projects Funds, Enterprise Funds, Internal Service Funds, and Interfund Loans. He informed that the current fund balance policy addresses working capital and that cities may have additional fund balance reserve needs. Examples include: intergovernmental revenue cutbacks; emergency or unanticipated expenditures; special projects; and capital outlay replacement. Mr. Wilson suggested that the City review it's current policy and determine if additional reserves are appropriate. Mayor Kragness questioned if GASB 34 is now fully implemented. Mr. Mol informed that GASB 34 is fully implemented and continues to be amended. Councilmember Lasman questioned since the City had received the A-1 Moody's rating how it compares to the average. Fiscal and Support Services Director Dan Jordet informed that he would research and report back to the Council. tation durin the Re ular meetin It Mr. Mol asked the Council if they would like a shorter presen g g g was the consensus of the Council that a shorter presentation would be suitable. Council discussed the following agenda items: lOm, Resolution Ordering the Correction of Hazardous Conditions and Further for the Abatement of Public Nuisances, Safety, and Health Hazards with Respect to That Real Estate Located at 5025 Ewing Avenue North, Broc�klyn Center, Minnesota 55430 Legally Described as Lot 13, Block 2, Twin Lake Woods 2 Addition, Hennepin County, Minnesota in the City of Brooklyn Center, Hennepin County, Minnesota. Mayor Kragness informed that she believes there is a typo with the date in the Police Report on page 2. 7b, Licenses. Councilmember Carmody informed that she believes there is a typo for the address of tl�e amusement location located at Family Dollar #4515, 6223 Brooklyn Drive. She believes the address should be Brooklyn Boulevard. 06/28/04 -2- DRAFT 7e, Approval of Mobile Computing Devices Replacement and Purchases with Forfeiture Funds. Councilmember Lasman questioned how the dollar amounts provided earlier in May could be so off a month later. Police Chief Scott Bechthold discussed that they were informed the minimum software specifications for mobile computing devices (MCD's) would be a Pentium III class processor operating at minimum 700 MHz. When this information was provided it was determined that the Police Department would need to purchase ten new MCD's by August l, 2004, in order to meet the August 17, 2004, conversion date. 10i, Request of Garden City PTO for Park Benches and Playground Equipment Contribution at Garden City School. Councilmember Lasman questioned where the funds would come from for this request. City Manager Michael McCauley discussed if the Council would like to proceed with the request, the funds would be taken out of the Capital Projects Fund or if the Council wished to seek another fund that could be done. 101, Resolution Amending the Schedule for Rental Dwelling License Fees. Councilmember Carmody questioned the difference between running group homes as a business and renting properties for single-family dwellings. City Attorney Charlie LeFevere informed that in arder to treat the two different there would have to be a rationale. Councilmember Carmody informed that she would like to have Consent Agenda Item 7e, Approval of Mobile Computing Devices Replacement and Purchases with Forfeiture Funds removed and placed as Council Consideration Item l On. MISCELLANEOUS There were no miscellaneous items discussed. DISCUSSION OF WORK SESSION AGENDA ITEMS AS TIME PERMITS No time permitted for discussion of Work Session agenda items. ADJOURNMENT A motion by Councilmember Lasman, seconded by Councilmember Carmody to adjourn the Study Session at 6:45 p.m. Motion passed unanimously. City Clerk Ma or Y 06/28/04 -3- DRAFT MINUTES OF THE PROCEEDINGS OF THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER IN THE COUNTY OF HENNEPIN AND THE STATE OF MINNESOTA REGULAR SESSION JLTNE 28, 2004 CITY HALL COUNCIL CHAMBERS 1. INFORMAL OPEN FORUM WITH CITY COUNCIL CALL TO ORDER INFORMAL OPEN FORUM The Brooklyn Center City Council met in Informal Open Forum at 6:45 p.m. ROLL CALL Mayor Myrna Kragness, Councilmembers Kathleen Carmody, Kay Lasman, Diane Niesen, and Bob Peppe. Also present were City Manager Michael McCauley, Assistant City Manager/Director of Operations Curt Boganey, Police Chief Scott Bechthold, Fiscal and Support Services Director Dan Jordet, City Attorney Charlie LeFevere, and Deputy City Clerk Maria Rosenbaum. No one wished to address the Council. A motion by Councilmember Lasman, seconded by Councilmember Carmod� to adj ourn the Study Session at 6:46 p.m. Motion passed unanimously. 2. INVOCATION A moment of silence was observed. 3. CALL TO ORDER REGULAR BUSINESS MEETING The Brooklyn Center City Council met in Regular Session and was called to order by Mayor Myrna Kragness at 7:01 p.m. 4. ROLL CALL Mayor Myrna Kragness, Councilmembers Kathleen Carmody, Kay Lasman, Diane Niesen, and Bob Peppe. Also present were City Manager Michael McCauley, Assistant City Manager/Director of Operations Curt Boganey, Police Chief Scott Bechthold, Fiscal and Support Services Director Dan Jordet, City Attorney Charlie LeFevere, and Deputy City Clerk Maria Rosenbaum. 06/28/04 -1- DRAFT 5. PLEDGE OF ALLEGIANCE The Pledge of Allegiance was recited. 6. COUNCIL REPORT Councilmember Carmody expressed thanks to the Earle Brown Days Committee for all their work with the Earle Brown Days Events; and reported that she had joined the League of Minnesota Cities Improving Local �conomies Committee. Councilmember Lasman reported that she attended a Parks Tour on June 15, 2004; the Dudley Tournament on June 19, 2004; the Earle Brown Days Parade on June 24, 2004; and the Ice Cream Social at Brookdale on June 25, 2004. Councilmember Lasman commended the volunteers who helped plant the Central Park area and commented how nice Central Park looked for the Dudley Tournament and the Earle Brown Days Events. Councilmember Niesen informed that she participated in the Earle Brown Days Parade; and tliat she had joined the League of Minnesota Cities Improving Fiscal Services Committee. Mayor Kragness reported that she received a letter from the Hennepin County Public Works Administration Department commending the Police and Fire Chiefs and Kristi Commers for their S work on the Emergency Preparedness meetings. 7. APPROVAL OF AGENDA AND CONSENT AGENDA There was a motion by Councilmember Lasman, seconded by Councilmember Carmody to approve the agenda and consent agenda with the removal of Consent Item 7e, Approval of Mobile Computing Devices Replacement and Purchases with Forfeiture Funds to Council Consideration Item lOn. Motian passed unanimously. 7a. APPROVAL OF MINUTES A motion by Councilmember Lasman, seconded by Councilmember Carmody to approve the June 14, 2004, study, regular, and work session meeting minutes. Motion passed unanimously. 7b. LICENSES A motion by Councilmember Lasman, seconded by Councilmember Carmody to approve the following list of licenses. Motion passed unanimously. 06/28/04 -2- DRAFT AMUSEMENT DEVICES Americinn Motel and Suites 2050 Freeway Boulevard Brooklyn Center Best Western 1501 Freeway Boulevard Brooklyn Center Legion 6110 Brooklyn Boulevard Community Center 6301 Shingle Creek Parkway Davanni's Pizza 5937 Summit Drive Earle Brown Lanes 6440 James Circle North Family Dollar #5110 21 OS North 57` Avenue Family Dollar #4514 6223 Brooklyn Boulevard MCTO 6845 Shingle Creek Parkway GARBAGE HAULER Ace Solid Waste, Inc. 6601 McKinley Street NW, Ramsey T& L Sanitation Service P.O. Box 49695, Blaine Walz Brothers Sanitation P.O. Box 627, Maple Grove MECHANICAL Aspen Air Inc. 308 SW 15 Street, #25, Farest Lake Duct Works LLC 5320 Triton Drive, Golden Valley RENTAL Renewal: 824 69�' Avenue North Joseph Roche 4408 69�' Avenue North Eugene and Diane Wright 1706 71 St Avenue North Patricia A, Sandeen 6915 Brooklyn Boulevard Curtis Cady 5242 Lakeside Place Brett and Terry Parker 5547 Lyndale Avenue North David Theisen 6813 Noble Avenue North David Zemke 5332-36 Russell Avenue North Douglas Ryan 5256 E. Twin Lake Blvd. Brian Somkhan Initial: 3413 62 Avenue North Mai-Thuong Nguyen 3319 63d Avenue North Linda and Ai Yang 4213 63` Avenue North Bryan Friendshuh 4907 65�' Avenue North William Bjerke 4204 Lakebreeze Avenue North Thinh Pham 4811 Lakeview Avenue North Diane Krenz 6825 Scott Avenue North Doug Pederson SIGN HANGER Attrata Sign 14680 James Road, Rogers 06/28/04 DRAFT i I 7c. APPROVAL OF PERFORMANCE GUARANTEE RELEASES FOR 5000 FRANCE AVENUE NORTH (TOWNHOMES) AND MOTEL 6, 2741 FREEWAY BOULEVARD A motion by Councilmember Lasman, seconded by Councilmember Carmody to approve performance guarantee releases for 5000 France Avenue North and 2741 Freeway Boulevard. Motion passed unanimously. 7d. RESOLUTION DECLAItING A PUBLIC NUTSANCE AND ORDERING THE i REMOVAL QF DISEASED TREES RESOLUTION NO. 2004-84 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION DECLARING A PUBLIC NUISANCE AND ORDERING THE REMOVAL OF DISEASED TREES The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Carmody. Motion passed unanimously. 7e. APPROVAL OF MOBILE COMPUTING DEVICES REPLACEMENT AND PURCHASES WITH FORFEITURE FUNDS This item was removed and placed on Council Consideration as l On. 8a. PRESENTATION FROM HLB TAUTGES REDPATH, LTD -RESOLUTION ACCEPTING COMPREHENSIVE ANNUAL FINANCIAL REPORT OF THE CITY OF BROOKLYN CENTER FOR THE CALENDAR YEAR ENDED DECEMBER 31, 2003 Dave Mol, HLB Tautges Redpath, Ltd., addressed the Council to briefly outline the materials that had been previously presented at the Study Session. Mr. Mol informed that the overall results of the 2003 Audit were positive with clean reports and no compliance findings. RESOLUTION NO. 2004-85 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION ACCEPTING COMPREHENSIVE ANNUAL FINANCIAL REPORT OF THE CITY OF BROOKLYN CENTER FOR THE CALENDAR YEAR ENDED DECEMBER 3 l, 2003 The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Carmody. Motion passed unanimously. 06/28/04 -4- DRAFT I 9. PLANNING COMMISSION ITEM 9a. PLANNING COMMISSION APPLICATION NO. 2004-008 SUBMITTED BY CARIBOU COFFEE COMPANY, INC. REQUEST FOR A SPECIAL USE PERMIT TO OPERATE A CARIBOU COFFEE SHOP AT 3900 LAKEBREEZE AVENUE NORTH. THE PLANNING COMMISSION RECOMMENDED APPROVAL OF THIS APPLICATION AT ITS JUNE 17, 2004, MEETING. City Manager Michael McCauley discussed that Planning Commission Application No. 2004-008 submitted by Caribou Coffee Company, Inc. requesting for a special use permit to operate a Caribou Coffee Shop at 3900 Lakebreeze Avenue North was reviewed and recommended by the Planning Commission subject to the following conditions: 1. The special use permit is granted for retail sales at a Caribou Coffee Shop as provided in the plans submitted. Any change in this use not comprehended by this application or permitted under the zoning ordinance will require approval of an amendment to this special use permit. 2. The special use permit is subject to all applicable codes, ordinances and regulations and any violation thereof shall be grounds for revocation. 3. The retail sales shall be confined to the area indicated on the site and floor plans submitted. 4. No banners, pennants, streamers, balloons or other attention attracting devices may be used in conjunction with the retail sales allowed on the site other than that which is authorized under administrative permits comprehended under the City's Zoning Ordinance. 5. This special use permit approval does not comprehend any additional signery other than that allowed under Chapter 34 of the City Ordinances. Councilmember Niesen inquired about the parking and who would be responsible for signage if Caribou Coffee Company did not receive the additional parking. Planning and Zoning Specialist Ron Warren discussed the history of the parking lot and informed that the Northwest Athletic Club would be responsible for the signage, if any were to be placed. A motion by Councilmember Lasman, seconded by Councilmember Peppe to approve Planning Commission Application No. 2004-008 subject to the above five conditions. Motion passed unanimously. 06/28/04 -5- DRAFT I 10. COUNCIL CONSIDERATION ITEMS 10a. RESOLUTION EXPRESSING APPRECIATION FOR THE DONATION OF THE BROOKLYN CENTER LIONS CLUB IN SUPPORT OF THE EARLE BROWN DA�'S YOUTH GOLF TOURNAMENT Mayor Kragness read the resolution expressing appreciation for the $200 donation of the Brooklyn Center Lions Club in support of the Earle Brown Days Youth Golf Tournament. RESOLUTION NO. 2004-86 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION EXPRESSING APPRECIATION FOR THE DONATION OF THE BROOKLYN CENTER LIONS CLUB IN SUPPORT OF THE EARLE BROWN DAYS YOUTH GOLF TOURNAMENT The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Niesen. Motion passed unanimously. lOb. PROCLAMATION DECLARING JULY 11-17, 2004, TO BE COMMUNITY ACTIVITIES, RECREATION AND SERVICES WEEK Mayor Kragness read the Proclamation Declarin Jul 11-17, 2004, to be Communit Activities, g Y Y Recreation and Services Week. A motion by Councilmember Carmody, seconded by Councilmember Lasman to adopt Proclamation Declaring July 11-17, 2004, to be Community Activities, Recreation and Services Week. Motion passed unanimously. lOc. PROCLAMATION DECLARING JULY 9 AND 10, 2004, RELAY FOR LIFE DAYS IN BROOKLYN CENTER Mayor Kragness read the Proclamation Declaring July 9 and 10, 2004, Relay for Life Days in Brooklyn Center. Councilmember Carmody informed that if persons were interested to contact Lauri Winters at 763- 535-2055. A motion by Councilmember Lasman, seconded by Councilmember Peppe to adopt Proclamation Declaring July 9 and 10, 2004, Relay for Life Days in Brooklyn Center. Motion passed unanimously. 06/28/04 -6- DRAFT lOd. CONSIDERATION OF APPLICATION FOR COMMERCIAL KENNEL LICENSE SUBMITTED BY GENTLE TOUCA ANIMAL SANCTUARY, 4900 FRANCE AVENUE NORTH —RESOLUTION AUTHORIZING ISSUANCE OF A COMMERCIAL KENNEL LICENSE TO GENTLE TOUCH ANIMAL SANCTUARY, 4900 FRANCE AVENUE NORTH, BROOKLYN CENTER, MINNESOTA Mr. McCauley discussed that this item had been tabled from the June 14, 2004, meeting for more information to be received from the applicant. Since the June 14, 2004, meeting a letter had been received from the applicant and Councilmember Niesen had made a visit to the location. Councilmember Niesen discussed she had a few questions for Sandy Zander, President of Gentle Touch Animal Sanctuary. Ms. Zander addressed the Council and provided answers to Councilmember Niesen's questions. Councilmember Niesen expressed that she would like the Council to consider a condition as to the number of cats allowed. Ms. Zander informed she would have a concern with that type of condition as she is not always sure how many cats she will be housing at one time. She informed that she usually does not have the cats more than one month unless they are expecting. Councilmember Carmody informed that she believes her questions were answered in the letter received from Ms. Zander and expressed that she would like to approve the application with no condition added. RESOLUTION NO. 2004-$7 Councilmember Carmody introduced the following resolution and moved its adoption: RESOLUTION AUTHORIZING ISSUANCE OF A COMMERCIAL KENNEL LICENSE TO GENTLE TOUCH ANIMAL SANCTUARY, 4900 FRANCE AVENUE NORTH, BROOKLYN CENTER, MINNESOTA The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Lasman. Motion passed unanimously. 10e. RESOLUTION AUTHORIZING ACCEPTANCE OF A DONATED GLOBAL POSITIONING SYSTEM TO THE BROOKLYN CENTER POLICE DEPARTMENT Mr. McCauley discussed that the Police Department received a Global Positioning System (GPS) by Mr. Douglas Schultz at a Neighborhood Block Watch Party to be utilized to assist the Police Department with tracking and apprehending auto thieves. This resolution would authorize and accept the donation on behalf of the City of Brooklyn Center. 06/28/04 -7- DRAFT RESOLUTION NO. 2004-88 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION AUTHORIZING ACCEPTANCE OF A DONATED GLOBAL POSITIONING SYSTEM TO THE BROOKLYN CENTER POLICE DEPARTMENT The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Carmody. Motion passed unanimously. lOf. RESOLUTION AUTHORIZING PARTICIPATION IN TOBACCO-FREE YOUTH RECREATION PROGRAM INITIATIVE Mr. McCauley discussed that the Tobacco-Free Youth Recreation Program initiative had offered to provide signs for use in City parks to post areas as "no smoking" during organized youth activities. Councilmember Carmody questioned who is able to enforce smoking on school properties. Mr. McCauley discussed that the Police Department can enforce smoking on school properties by State Law. RESOLUTION NO. 2004-89 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION AUTHORIZING PARTICIPATION IN TOBACCO-FREE YOUTH RECREATION PROGRAM INITIATIVE The motion far the adoption of the foregoing resolution was duly seconded by Councilmember Niesen. Motion passed unanimously. lOg. REPORT ON CODE ENFORCEMENT Police Chief Scott Bechthold reported on the 701 total numbers of violations since the code sweep had started with residential properties and informed that there had been 545 first letters; 102 second letters; 330 compliance/thank you letters; and 32 extensions. The code enforcement sweep will continue with apartment properties starting the beginning of July. All first inspections for all property types will be completed.the end of July. Mr. Bechthold informed that they are being more aggressive with the first inspections of the twelve reoccurring problem properties and that they have referred four to Court. Mr. Bechthold diseussed that the Police Department continues to use proactive measures towards crime prevention and the quality of life issues and that the fifth Sergeant is now in place helping with the problem spots. He informed that the apartment calls for service continue to decrease and that since the 12-913 ordinance became effective he believes the apartment managers andpolice staffare working cooperatively together. 06/28/04 -8- DRAFT Councilmember Cartnody inquired where garbage cans are to be stored and the issue of gravel driveways on residential properties. Mr. McCauley informed that garbage cans have to be put on the back plain of the front of the house, Mr. Bechthold informed that the Police Department uses judgment calls with gravel driveways. lOh. RESOLUTION PROVIDING FOR THE TRANSFER OF TITLE OF FORMER HUMBOLDT LIQUOR STORE TO SCHOOL DISTRICT NO. 286 Mr. McCauley discussed that School District No. 286 had performed all of its obligations under the lease purchase agreement and that this resolution would provide for the transfer of title of the former Humboldt Liquor Stare to School District No. 286. RESOLUTION NO. 2004-90 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION PROVIDING FOR THE TRANSFER OF TITLE OF FORMER HUMBOLDT LIQUOR STORE TO SCHOOL DISTRICT NO. 286 The motion for the adoption of the faregoing resolution was duly seconded by Councilmember Carmody. Motion passed unanimously. 10i. REQUEST OF GARDEN CITY PTO FOR PARK BENCHES AND PLAYGROUND EQUIPMENT CONTRIBUTION AT GARDEN CITY SCHOOL Mr. McCauley discussed that the Park and Recreation Commission received and recommended a request from the Garden City Parent Teacher Organization (PTO) for financial assistance related to the purchase of additional playground equipment and two park benches at Garden City Elementary SchooL Kim Winkleman, representative of the PTO, addressed the Council to present a layout of the proposed plans for the playground and to ask that the Council consider this request. Mayor Kragness questioned how much the PTO had raised already for the playground. Ms. Winkelman informed that she believes the PTO had raised approximately $30,000 to $40,000 and informed that the Brooklyn Center Fire Relief Association had added money for an additional swingset. A motion by Councilmember Carmody, seconded by Councilmember Lasman to accept the recommendation from the Park and Recreation Commission to amend to the Capital Improvements Plan for this funding. Motion passed unanimously. 06/28/04 -9- DRAFT lOj. AN ORDINANCE AMENDING CHAPTER 23 OF THE CITY ORDINANCES OF THE CITY OF BROOKLYN CENTER RELATING TO THE LICENSURE OF PAWNBROKERS I Mr. McCauley discussed that the Police Department would Iike to become part of the Minneapolis Automated Pawn System (APS) to improve efficiency with the City's compliance and regulation of its pawn system ordinance as well as eliminate expenses incurred by our current pawnshap information processing. The proposed ordinance would impose a two-dollar transaction fee that would allocate one dollar to the City of Minneapolis and one dollar to the City of Brooklyn Center. I Mayar Kragness questioned what had changed since the last time the Council considered this topic. Mr. McCaule discussed that this s stem had reviousl been confi ured as an additional cost and Y Y P Y that the proposal now set forth by Police Chief Bechthold ends up being cost neutral to positive in revenue. A motion by Councilmember Lasman, seconded by Councilmember Carmody to approve the first reading and set second reading and public hearing on July 26, 2004. Motion passed unanimously. lOk. RESOLUTION RATIFYING ADVANCES TO COVER DEBT SERVICE IN TAX INCREMENT FINANCING DISTRICT NO. 2 Mr. McCauley discussed that this resolution would formalize the amounts of money that are to be restored. The restoration will replace monies that were advanced from other funding sources. RESOLUTION NO. 2004-91 Councilmerrlber Lasman introduced the following resolution and moved its adoption: R.ESOLUTION RATIFYING ADVANCES TO COVER DEBT SERVICE IN TAX 1NCREMENT FINANCING DISTRICT NO. 2 The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Carmody. Motion passed unanimously. 101. RESOLUTION AMENDING THE SCHEDULE FOR RENTAL DWELLING LICENSE FEES Mr. McCauley discussed that a fee structure had been established to help the increasing growth in single-family rentals that results in increased and re etitive ins ections. P P Councilmember Niesen questioned the costs considered when creating the proposed fee schedule. Mr. McCauley discussed that rough measures were considered with all staff involved and that the estimated annual cost of rental housing inspection, support, and administration is in the range of $100,000 to $130,000. 06/28/04 -10- DR.AFT Looking at the annual cost of inspections, enforcement, education, and administration in excess of $130,000, the annual revenue is in the range of $62,000 per year. That revenue is not even as licenses are on a two-year cycle and one cycle has more units. Councilmember Niesen questioned when the City started licensing rental properties and if there was any State requirements. Planning and Zoning Specialist Ron Warren discussed the history which started in 1976 and informed that was when City's Ordinance Chapter 12 was adopted; and answered that there were no State requirements for rental housing. A motion by Councilmember Carmody to call the question, seconded by Councilmember Lasman. Motion passed. Councilmember Niesen expressed that she is not comfortable with the adoption of this resolution since she is not exactly sure and does not completely understand. RESOLUTION NO. 2004-92 Councilmember Carmody introduced the following resolution and moved its adoption: RESOLUTION AMENDING THE SCHEDULE FOR RENTAL DWELLING LICENSE FEES The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Lasman. Councilmember Niesen voted against the same. Motion passed. lOm. RESOLUTION ORDERING THE CORRECTION OF HAZARDOUS CONDITIONS AND FURTHER FOR THE ABATEMENT OF PUBLIC NUISANCES, SAFETY, AND HEALTH HAZARDS WITH RESPECT TO THAT REAL ESTATE LOCATED AT 5025 EWING AVENUE NORTH, BROOKLYN CENTER, MINNESOTA 55430 LEGALLY DESCRIBED AS LOT 13, BLOCK 2, TWIN LAKE WOODS 2 ND ADDITION, HENNEPIN COUNTY, MINNESOTA IN THE CITY OF BROOKLYN CENTER, HENNEPIN COUNTY, MINNESOTA Mr. McCauley discussed that the Police Department had inspected this property pursuant to a search warrant and that this resolution would order the correction of hazardous conditions or its removal for the property at 5025 Ewing Avenue North. Mayor Kragness questioned how many times this property had been found not in compliance and if the owner was still living at the property. Mr. McCauley was unaware of the number of times and informed that the owner does not reside at this property. RESOLUTION NO. 2004-93 Councilmember Lasman introduced the following resolution and moved its adoption: 06/28/04 -11- DRAFT RESOLUTION ORDERING THE CORRECTION OF HAZARDOUS CONDITIONS AND FURTHER FOR THE ABATEMENT OF PUBLIC NUISANCES, SAFETY, AND HEALTH HAZA.RDS WITH RESPECT TO THAT REAL ESTATE LOCATED AT 5025 EWII�1G AVENUE NORTH, BROOKLYN CENTER, MINNESOTA 55430 LEGALLY DESCRIBED AS LOT 13, BLOCK 2, TWIN LAKE WOODS 2� ADDITION, HENNEPIN COLTNTY, I��INNESOTA IN TI-�E CITY OF BROOKLYN CENTER, HENNEPIN COUNTY, MINNESOTA The motion for the adoption of the faregoing resolution was duly seconded by Councilmember Peppe. Motion passed unanimously. lOn. APPROVAL OF MOBTLE COMPUTING DEVICES REPLACEMENT AND PURCHASES WITH FORFEITURE FUNDS Councilmember Carmody had asked that this item be removed for further discussion and questioned why the City would be paying more at this time for the mobile computing devices (MCD's). Ivlr. McCauley discussed that when the Police Department was trying to make the current equipment compatible for the software upgrading process it used an upgrade amount, subsequently it was determined that new MCD's would be the appropriate way to have the equipment capable of ineeting the needs with the new software. A motion by Councilmember Cannody, seconded by Councilmember Lasman to approve the MCD's replacement and purchases with forfeiture funds. Councilmember Niesen voted against the same. Motion passed. 11. ADJOURNMENT There was a motion by Councilmember Carmody, seconded by Councilmember Lasman to adjourn the City Council meeting at 8:42 p.m. Motion passed unanimously. City Clerk IVlayor 06/28/04 -12- DRAFT MINUTES OF THE PROCEEDINGS OF THE CITI� COUNCIL OF THE CITY OF BROOKLYN CENTER IN THE COUNTY OF HENNEPIN AND THE STATE OF MINNESOTA CITY COLJNCIL WORK SESSION JUNE 28, 2004 CITY HALL COUNCIL CHAMBERS CALL TO ORDER The Brooklyn Center City Council met in Work Session and was called to arder by Mayor Myrna Kragness at 8:46 p.m. ROLL CALL Mayor Myrna Kragness, Councilmembers Kathleen Carmody, Kay Lasman, Diane Niesen, and Bob Peppe. Also present: City Manager Michael McCauley, Assistant City Manager/Director of Operations Curt Boganey, and Deputy City Clerk Maria Rosenbaum. BROOKDALE REAL ESTATE TAX DELINQUENCY City Manager Michael McCauley informed that Brookdale continues to be delinquent in 2004 t�es. Council discussed and was in consensus of waiting a few more months before taking action on the default. REAL ESTATE TAXES AND CTTY LICENSES Mr. McCauley discussed that a list of licenses and the rationales behind the licensing activities had been prepared. He inquired if the Council would like staff to prepare a proposal that would require real estate taxes be paid as a requirement for approval of some license types. It was the consensus of the Council to have staff prepare a proposal for Council consideration. MISCELLANEOUS No miscellaneous items were discussed. ADJOURNMENT A motion by Councilmember Lasman, seconded by Councilmember Carmody to adjourn the Work Session at 8:53 p.m. Motion passed unanimously. City Clerk Mayor 06/28/04 -1- DRAFT City Council Agenda Item No. 7b City of Brooklyn Center A Millennium Community REVISED TO: Michael J. McCauley, City Manager FROM: Maria Rosenbaum, Deputy City Clerk DATE: July 7, 2004 SUBJECT: Licenses for Council Approval The following companies/persons have applied for City licenses as noted. Each company/person has fulfilled the requirements of the City Ordinance governing respective licenses, submitted appropriate applications, and paid proper fees. Licenses to be approved by the City Council on July 12, 2004 are as follows: AMUSEMENT DEVICES Regal Cinema 6420 Camden Avenue North GARBAGE HAULER Aspen Waste Systems, Inc. 2951 Weeks Avenue, Minneapolis Armor Roll-0ff Service 3291 Terminal Drive, Eagan BFI Waste Systems P.O. Box 39, Circle Pines Darling International, Inc. 9000 382 Avenue, Blue Earth Midwest Grease Buyers, Inc. P.O. Box 26, Redwood Falls Randy's Sanitation, Inc. P.O. Box 169, Delano Walters Recycling and Refuse P.O. Box 67, Circle Pines MECHANICAL Air Conditioning Associates 689 Pierce Butler Route, St Paul Anderson Heating Air Conditioning 4347 Central Avenue NE, Columbia Heights Schadegg Mechanical Inc. 225 Bridgepoint Drive, So St Paul SIGN HANGER Sign A Rama 13692 Grove Drive, Maple Grove TOBACCO RELATED PRODUCT Royal Tobacco 5625 Xe�es Avenue North 3`30I Shin le Creek Park g way Recreation and Community Center Phone TDD Number Brooklyn Center, MN 55430-2199 (763) 569-3400 City Hall TDD Number (763) 569-3300 FAX (763) 569-3434 FAX (763) 569-3494 ww w. cityo fb roohlyncenter. org City Council Agenda Item No. 7c Member introduced the following resolution and moved its adoption: RESOLUTION NO. RESOLUTION DECLARING A PUBLIC NUISANCE AND ORDERING THE REMOVAL OF DISEASED TREES WHEREAS, a Notice to Abate Nuisance and Diseased Tree Removal Agreement has been issued to the owners of certaiii properties in the City of Brooklyn Center giving the owners twenty (20) days to remove diseased trees on the owners' property; and WHEREAS, the City can expedite the removal of these diseased trees by declaring them a public n�iisance. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center, Minnesota that: 1. The diseased trees at the following addresses are hereby declared to be a public nuisance: PROPERTY OWNER__ pROPERTY ADDRESS___ NUMBER THEODORE PHYLLIS WAITE 5900 YORK AVE N 125, 126 DENNIS BEUTNER 5901 XERXES AVE N 127 LLOYD VIOLA HOLTHUS 5401 LOGAN AVE N 128 DONALD BANGHART 2210 54 AVE N 129 MARY BETH DAVIDSON 2206 54 AVE N 130 OSCAR FLORENCE PERSON 5800 DUPONT AVE N 131 JEROME BONNIE LIEBERG 5743 DUPONT AVE N 132 STEVEN GOLDSMITH 505 61 AVE N 133 ROY SANDRA EDLUND 7200 DUPONT AVE N 134 TIMOTHY FERN 6742 DREW AVE N 135 LAURA HEINZ MICHAEL OARE 6942 MAJOR AVE N 136 THOMAS MALM LYNN AMACHER-MALM 5420 FREMONT AVE N 137 TUYET LE XUAN NGUYEN 5730 NORTHPORT DR 138 JACK PEARL MAYERICH 5830 EMERSON AVE N 139 CLANCY JENNIFER JONES 5651 JAMES AVE N 140 PETER MILINKOVICH 5541 LOGAN AVE N 141 MAI SENG YANG LEE PAO VUE 5338 LOGAN AVE N 142 MARIAN WILLIAMS 2124 ERICON DR 143 MARKLEY BRADLEY 6030 HALIFAX PL 144 KATHLEEN DAHLHEIMER 5949 ADMIRAL LA 145 OLUFEMI OLAGBAJU 6225 NOBLE AVE N 146, 147, 148 HELEN PANAYOTOFF 4701 63 AVE N 149 CITY OF BROOKLYN CENTER VARIOUS PARKS 150, 151, 152, 177A-177D JIM 30YCE ENGLUND 6924 FRANCE AVE N 153 CHAD FISCHER 7119 MORGAN AVE N 154 HUMBOLDT COURT LLP 6819 HUMBOLDT AVE N 155, 156, 157 BEAREAN EVANGELICAL FREE CHURCH 6625 HUMBOLDT AVE N 158 CAN QUOC TRAN NGOC THI TA 3225 64 AVE N 159 DARON HANSEN JENNIFER SPORTEL 6530 CHOWEN AVE N 160 RESOLUTION N0. PROPERTY OWNER PROPERTY ADDRESS TREE NUMBER FOLUWASAYO ANGELA AKINDUMILA 5743 GIRARD AVE N 161, 162, 163 GEORGINE HAMPTON 5409 GIRARD AV$ N 164 DOUGLAS WALLIN 5420 GIRARD AVE N 165, 166 DONALD ETHEL JOHNSON 6101 LYNDALE AVE N 167A PAUL NEWMAN 6109 LYNDALE AVE N 167B ALBERTO PEREZ-RODRIGUEZ 2301 BROOKVIEW DR 168 MATTHEW AMY HAWTON 2307 BROOKVIEW DR 169 AHMED KHADAR JULIA GREY-COKER 2121 BROOKVIEW DR 170 WILLIAM NEWMAN 6712 WEST RIVER RD 171 NEMISE DOROTHY RETOTAR 6737 SCOTT AVE N 172 MARIAN WILLIAMS 2124 ERICON DR 173 RiTA BARLAND 2348 BROOKVIEW DR 174 DANIEL VOKER TERESA MORSE 5636 FREMONT AVE N 75 BROOKDALE COVENANT CHURCH 5] 39 BROOKLYN BLVD 176 DEFOREST DOROTHY LEHR 5053 BROOKLYN BLVD 178 2. After twenty (20) days from the date of the notice, the property owner(s) will receive a second written notice providing five (5) business days in which to contest the determination of the City Council by requesting, in writing, a hearing. Said request shall be filed with the City Clerk. 3. After five (5) days, if the property owner fails to request a hearing, the tree(s) shall be reinoved by the City. All removal costs, including legal, financing, and administrative charges, shall be specially assessed against the property. Date Mayor ATTEST: City Clerk The motion for the adoption of the foregoing resolution was duly seconded by member and upon vote being taken thereon, the following voted in favor thereof: and the followin voted a ainst the same: g g whereupon said resolution was declared duly passed and adopted. j MEMORANDUM DATE: July 12, 2004 TO: Michael J. McCauley, City Manager �.a� i' �n FROM: Joyce Gulseth, Public Works Administrative Aid� i SUBJECT: Resolution Declaring a Public Nuisance and Ordering the Removal of Diseased Trees The attached resolution represents the official Council action required to expedite removal of the trees most recently marked by the City tree inspector, in accordance witli approved procedures. It is anticipated that this resolution will be submitted for council consideration each meeting during the summer and fall as new trees are marked. City Council Agenda Item No. 7d Member introduced the following resolution and moved its adoption: RESOLUTION NO. RESOLUTION SETTING COURTESY BENCH INSPECTION AND PERMIT FEES, AND ESTABLISHING CORRIDORS PROHIBITING COURTESY BENCHES FOR 2005-2006 WHEREAS, Chapter 23 of the City of Brooklyn Center Ordinances provides for the regulation of courtesy benches placed within the public right of way; and WHEREAS, Section 23-903 provides for the establishme»t of annual inspection fees and permit fees for the placement of courtesy benches withii� the }�ublic right of way; and WHEREAS, Section 23-904 provides for the prohiUition of courtesy benclies in any alley, or any locations, districts, or zones as established by the City Council; and WHEREAS, the City Council desires to establish certain corridors where courtesy benches are not allowed within the public right of way due for public safety or aesthetic reasons. NOW, THEREFORE, BE 1T RESOLVED by the City Council of the City of Brooklyn Center, Minnesota that: 1. Pursuant to Section 23-903, the courtesy bench annual inspection fee shall be $55 per bench and the courtesy bench annual permit fee shall be $33.00 per bench effective April 1, 2005. 2. The placement of privately owned courtesy benches within the public right of way shall be prohibited in the following locations during the 2005 2006 permit period: Brooklyn Boulevard from 65`�' Avenue to the north City limits; 69� Avenue North fi Broolclyn Boulevard to Shingle G'eek Parkway; Shingle Creek Parkway from Interstate 694 to County Road 10; Shingle Creel< Parl<way from 67` Avenue to 69` Avenue; France Avenue from 47 Avenue to Azelia Avenue; France Avenue from 50` Avenue to 53� Avenue; France Avenue from 69` Avenue to 73� Avenue; and Earle Brown Drive, Summit Drive, and John Martin Drive in their entirety. Date Mayor ATTEST: City Clerk The motion for the adoption of the foregoing resolution was duly seconded by member and upon vote being taken thereon, the following voted in favor thereof: and the following voted against the same: whereupon said resolution was declared duly passed and adopted. L'iIy of MEMORANDUM anooxLYN CENTER DATE: July 7, 2004 TO: Michael McCauley, City Manager FROM: Todd Blomstrom, Director of Public Works 1 SUBJECT: Resolution Setting Courtesy Bench Inspection and Permit Fees and Establishing Corridors Prohibiting Courtesy Benches for 2005 2006 Chapter 23 of the Brooklyn Center City Ordinances provides for the regulation of courtesy benches placed within the public right of way. Persons wishing to �lace a courtesy bench are required to make application to the City Clerk. Each application must be accompanied by an inspection fee, as set forth by City Couiicil resolution, for each such bench. If the applicatior� is approved, an additional permit fee is required in the amount as set forth by City Council resolution for each bench at the time the pern�it is issued. The inspection fee and pei7nit fee for courtesy benches were last revised on March 25, 2002 by City Council Resolution 2002-44. This resolution established the inspection fee at $50.00 per bench and the pern�it fee at $30.00 per bench. These fee amounts have been unchanged through the 2004 permit period. The attached resolution would increase the annual inspection fee to $55.00 per bench and the annual pennit fee to $33.00 per bench. The City Council last amended sections of the City Ordinance regulating courtesy benehes in Apri1200 L The attached letter dated April 16, 2001 was sent to owners of courtesy benches to provide a basic summary of changes that were made to the City Ordinance regarding eourtesy benches. Tk�e second page of the letter describes the City's intent to establish corridors for prohibiting the placement of courtesy benches pursuant to Section 23-904 of the current ordinance. A review of city records indicates that these corridors have not been fornlally established at this time. The attached City Council resolution would establish certain corridors that prohibit the placement of courtesy benches based on the original staff recommendation from 2001 and additional corridor areas as currently recommended by City staf£ The proposed corridors would affect only one of the 41 courtesy benches currently placed within the public right of way during the 2004 perniit period. The one bench location that would be affected was included in the original staff recommendation from 200 L 1 City of Brooklyn Center A Millennium Community April 16, 2001 Dear Courtesy Bus Bench Licensee: The City Council of the City of Brooklyn Center will hold a public hearing at its regular meeting on Apri123, 2001 to discuss amendments to the ordinances regulating the placement of courtesy benches. The City has had an ongoing process of reviewing and revising regulations regarding private uses of the public right of way, and has recently made substantial changes to its right of way ordinance. These proposed amendments to the bus bench ordinance would rnake this ordinance more consistent with the right of way ordinance and our own construction standards. Enclosed with this letter is a copy of the proposed ordinance. For simplicity, the existing ordinance is proposed to be repealed and replaced with this ordinance. Almost all the existing ordinance language is carried over to the new ordinance. Below is a summary of the proposed changes. At the public hearing on Apri123, the Council will take public input on these changes, and will consider the ordinance for adoption. Pronosed Ordinance Chan�es Section 23-901. Added a definition of a courtesy bench. Section 23-902. Amended the ordinance to provide for a permit rather than a license. The distinction is that a permit merely indicates the bench, its placement, and its advertising meet the requirements of the ordinance, but a license might imply that the benc;h, its location, and its advertising are endorsed by the City. Section 23-903. Most of the section is similar to the current ordinance. There are some important differences. Subsection (b) was added to assure that courtesy benches would only be located at bus stops. There currently is no regulation on location other than as implied by the need for the location to be approved by the City Engineer. Subsection (c) was arnended to require that adjacent property owner approval be obtained for all proposed locations. The current ordinance only requires consent when the bench is adjacent to residential or multifamily zoned properiy. Extending the consent to other types of property provides all property owners with the opporiunity to comment on the desirability of this type of facility and the potential impact on maintenance of their properties. Subsection was amended to provide that renewal of a permit is not automatic, and that usage of the bench will be one factor reviewed in considering permit renewaL Section 23-904. One important amendment was added here: prohibition of courtesy benches in any locations, zones, or districts as established by the City Council. This provision would allow the Council to establish by resolution any locations where these private benches with advertising are not allowed for public safety or aesthetic reasons. Section 23-906. Subsection (a) was amended to change the minimum curb setback from 18 inches to 30 inches. Subsection (d) was added to provide that benches be installed on a concrete slab, which 6301 Shingle Creek Parkw¢y Recre¢tion and Community Center Phone TDD Number Brooklyn Center, MN 55430-2199 (763) 569-3400 City Hall TDD Number (763) 569-3300 FAX (763) 569-3434 FAX (763) 569-3494 would improve appearance and ease maintenance. Also, this subsection formally prohibits the placement on or encroachment onto sidewalks or trails. Subsection (e) was amended to provide that the areas around the bench should be kept weed free and directing that graffiti be removed immediately. Section 23-907. Subsection (a) was amended to add tobacco products to the list of the types of advertising that is prohibited, and to remove the prohibition on legal advertising. The prohibition on political advertising remains. Section 23-909. The insurance requirements language has been updated to be in compliance with current city and statutory requirements, and the language on bonding to assure removals was added. Additional Information The proposed changes in Section 23-904 would authorize the Council to establish by resolution areas or locations where courtesy benches would not be allowed. At this time it is expected that those locations would include Brooklyn Boulevard from 65 Avenue to the north City limits; and the area known as the `Barle Brown Farm commercial area," that is, Shingle Creek Parkway from I-694 south to CR 10; and the entirety of Summit, Earle Brown, and John Martin Drives. Also, please note that the ordinance would change the permit period from January 1-January 1 to April 1- April l. The license of any bench licensed as of December 31, 2001 would be extended to April 1, 2002. At least 30 days prior to April 1, 2002, new permit requests for all benches proposed for permit in 2002 must be submitted to the City Clerk, along with the letters of consent from adjacent properly owners and location and installation details for review by the City Engineer. If you have any questions about this proposed ordinance, please feel free to contact me at 763-569- 3340. If you do not wish or are unable to attend the public hearing, you may submit written comments to me and I will provide those to the Council at the hearing. You may mail or drop off your comments at City Hall, or fax me at 763-569-3494, or email to dsnector�a,ci.brooklvn- center.mn.us. o7�N! �V r Sincerely, `�'�?T P��(Ii��x� Q Gl S�'�i�.�r� C`oR�.eA�� 33do sNE�raC Av� Diane Spector i NNcl�f�Jl.! 5� l�� SSyO(c DIRECTOR OF PUBLIC WORKS t�Ni� moss Cc: Sharon Knutson, City Clerk f�i�/,B�jtGy (�j �c�/.S �,l�i�✓NE�fI N�u�F h�� y��° City Council Agenda Item No. 7e ��ppyll.YN C��yT��, yOLllNTEf jg Brooklyn Center Fire F��F DE�T. Memorandum To: Michael McCauley City Manager FROM: Ron Boman Fire Chief SUBJECT: Otd Fire Hose DATE: July 7, 2004 The Brooklyn Center Fire Department has received a FEMA Grant in 2003 for replaCement of all the departments fire hose, .normally this would be done over a five (5) to eight (8) year period so some our old hose has s�me life left in it. There is no market fo� used fire hose and we have no facilities to store the old hose and if you do not use or flow water through it on a regular basis the hose wi II rot. I am requesting permission to give some of the old hose to small fire department around the state that do not have enough money to match the 10 percent funding required to qualify for a FEMA Grant. As our City has been successful in obtaining 2 FEMA Grants in the past 2 years totaling over $313,000 I feel this will be a fair and just way to help needy fire departments in the state, most of these departments are staffed by volunteers that have put together fire departments by receiving old used equipment from larger cify fire departments. City Council Agenda item No. 8a CITY OF BROOKLYN CENTER Notice is hereby given that a public hearing will be held on the 12th day of July 2004 at p.m. or as soon thereafter as the matter may be heard at the City Hall, 6301 Shingle Creek Parkway, to consider An Ordinance Amending Ordinance 2002-11 Regarding Council Salaries for 2005- 2006. Auxiliary aids for persons with disabilities are available upon request at least 96 hours in advance. Please contact the Deputy City Clerk at 763-569-3300 to make arrangements. ORDINANCE NO. AN ORDINANCE AMENDING ORDINANCE NO. 2002-11 REGARDING COUNCIL SALARIES FOR 2005-2006 THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER DOES ORDAIN AS FOLLOWS: Section 1. City of Brooklyn Center Ordinance No. 2002-11, which amended the amount of the annual salaries to be paid to the Mayor and Council Members to become effective January 1, 2003, is hereby amended. Section 2. Effective January 1, 2005, the annual salary for Mayor shall be $10,522 and the annual salary for Council Members shall be $8,056. Section 3. Effective January 1, 2006, the annual salary for Mayor shall be $10,732 and the annual salary for Council Members shall be $8,217. Section 4. This ordinance shall be effective after adoption and thirty days following its legal publication. Adopted this day of 2004. Mayar ATTEST: City Clerk Date of Publication Effective Date Office of the City Clerk City of Brooklyn Center A Millennium Community MEMORANDUM TO: Michael J. McCauley, City Manager FROM: Sharon Knutson, City Clerk DATE: July 7, 2404 SUBJECT: An Ordinance Amending Ordinance No. 2002-11 Regarding Council Salaries for 2005- 2006 At its June 14, 2004, meeting, the Brooklyn Center City Council approved first reading of An Ordinance Amending Ordinance No. 2002-11 Regarding Council Salaxies for 2005-2006. The second reading and Public Hearing are scheduled for July 12, 2004. Notice of Public Hearing was published in the Brooklyn Center Sun-Post newspaper on June 24, 2004. If adopted, effective date will he 30 days following its legal publication, August 21, 2004. Attachment 6301 Shingle Creek Parkway Recreation and Community Center Phone TDD Number Brooklyn Center, MN 55430-2199 (763) 569-3400 City Hall TDD Number (763) 569-3300 FAX (963) 569-3434 FAX (763) 569-3494 www.cityofbrookdyncenter.org City Council Agenda Item No. 8b 4 CITY OF BROOKLYN CENTER Notice is hereby given that a public hearing will be held on the 12th day of July 2004 at 7:00 p.m. ar as soon thereafter as the matter may be heard at City Hall, 6301 Shingle Creek Parkway, to consider an ordinance to amend the City Charter provisions relating to the form of City Ordinance amendments. Auxiliary aids for handicapped persons are available upon request at least 96 hours in advance. Please notify the Deputy City Clerk at 763-569-3300 to make arrangements. ORDINANCE NO. AN ORDINANCE RELATING TO CITY GOVERNMENT; AMENDING SECTION 3.10 OF THE BROOKLYN CENTER CITY CHARTER THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTERDOES ORDAIN AS FOLLOWS: Section l. Upon recommendation of the Brooklyn Center Charter Commission pursuant to Minnesota Statutes, section 410.12, subd. 7, Section 3.10 of the City Charter of the City of Brooklyn Center is hereby amended in the following manner: Section 3.10. AMENDMENT AND REPEAL OF ORDINANCES Every ordinance repealing a previous ordinance, section or subdivision thereof shall give the number, if any, and the title of the ordinance to be repealed in whole or in part. No ordinance, seetion, or subdivision thereof shall be amended by reference to the title alone. Such an amending ordinance shall set forth in full each section or subdivision to be amended and shall indicate new matter by underscoring, and the old matter to be omitted, by E� I£ s�r e��3 strikethroueh method. In newspaper publication of ordinances, the same indications of omitted and new matter shall be used except that italics or bold-faced type may be substituted for underscoring and omitted matter ��:r�t�;%� be printed �i�� c°��rt�� l�,�i��°6: �,k��-t €�tl��::�iw� usin� the strikethroueh method,. Section 2. This Ordinance shall become effective after adoption and upon ninety (90) days following its legal publication, except that if within si�y (60) days after publication a petition requesting a referendum on this ordinance, signed by the number of registered voters of the City required by Minnesota Statutes, section 410.12, subd. 7 is filed with the City Clerk, this ordinance will not be effective until approved by 51% of the voters voting on tl�e question of its adoption at the special election called by the Council for that purpose. Section 3. On the effective date of this Ordinance, tl�e City Clerk is authorized and directed to file copies of the aniendment with the Secretary of State of the State of Minnesota, the Heruiepin County Recorder, and the City Clerk's o�ce together with the certificate required by Minnesota Statutes, section 410.1L Adopted this day of 2004. Mayor ATTEST: City Clerk Date of Publication: Effective Date: (Brackets indicate matter to be deleted, underline indicates new matter.) Office of the City Clerk City of Brooklyn Center A Millennium Community MEMORANDUM TO: Michael J. McCauley, City Man er FROM: Sharon Knutson, City Clerk DATE: July 7, 2004 SUBJECT: An Ordinance Relating to City Government; Amending Section 3.10 of the Brooklyn Center City Charter At its June 14, 2004, meeting, the Brooklyn Center City Council approved first reading of An Ordinance Relating to City Government; Amending Section 3.10 of the Brooklyn Center City Charter. The second reading and Public Hearing are scheduled for July 12, 2004. Notice of Public Hearing was published in the Brooklyn Center Sun-Post newspaper on June 24, 2004. If adopted, effective date will be 90 days following its legal publication, October 20, 2004. Materials that were included in the June 14, 2004, Council agenda are also attached. Attachments 630I Shingle Creek Parkway Recreation and Community Center Phone TDD Number Brooklyn Center, MN 55430-2199 (763) 569-3400 City Hall TDD Number (763) 569-3300 FAX (763) 569-3434 FAX (763) 569-3494 www.cityo fbrooklyncenter.org Office of the City Clerk City of Brooklyn Center A Millennium Community MEMORANDUM TO: Michael J. McCauley, City Manager FROM: Sharon Knutson, City Clerk ��a DATE: June 10, 2004 SUBJECT: An Ordinance Relating to City Government; Amending Section 3.10 of the Brooklyn Center City Charter In November 2003, the City Attorney drafted an ordinance amending Section 3.10 of the City Charter that would allow the City to use strikethrough rather than brackets for matter to be deleted in its ordinance amendments. City Manager Michael McCauley forwarded the ordinance to the Brooklyn Center Charter Commission for its review and recommendation. The basis for this amendment is that it would make it easier for everyone to identify which language was being removed in an ordinance amendment. New language is underlined, making it easier to identify new lailguage, but the use of brackets is sometimes confusing. At its Apri128, 2004, meeting, the Brooklyn Center Charter Commission reviewed the ordinance amendment and recommended the changes be sent to the City Council. Charter Commission Chair Stan Leino appeared at the May 24, 2004, City Council Wark Session to discuss the ordinance amendment and present the Charter Commission's recommendation. The ordinance amendment is offered at the June 14, 2004, City Council meeting for first reading. If approved, second reading and public hearing would be scheduled for 3uly 12, 2004, and notice of public l�earing would be published in the City's official newspaper. Attachments 1. An Ordinance Relating to City Government; Amending Section 3.10 of the Brooklyn Center City Charter 2. Draft Minutes of the Apri124, 2004, Brooklyn Center Charter Commission 3. Draft Minutes of the May 24, 2004, Brooklyn Center City Council Work Session 6301 Shingle Creek Parkway Recreation and Community Center Phone TDD Number Brooklyn Center, MN 55430-2199 (763) 569-3400 City Hall TDD Number (763) 569-3300 FAX (763) 569-3434 FAX (763) 569-3494 ww w. cityo fbrooklyncenter. org MINUTES OF THE APRIL 28, 2004 MEETING OF THE BROOKLYN CENTER CHARTER COMMISSION Meeting called to order at 7:00 PM. Commissioner Oslund volunteers to take the minutes due to absence of Commissioner Middleton. Roll call of Charter Commission members. In attendance were Commissioners Roni Brunner, Stan Leino, Eileen Oslund, Rich Theis, Kris Lawrence-Anderson, Walter Bursch, and Richard Phillips. Excused: Commissioners Elizabeth Dorsey-Hatle, Harold Middleton, Denise Walker, and James Holst. Unexcused: Commissioner Denise Walker. The minutes of the February 25, 2004 were presented and approved. Old Business Discussion of Chairmanship: Commissioner Holst has pulled his name as the nominated chair, but will continue as a member of the commission. Commissioner Theis moved to appoint Commissioner Leino as Chairman. Seconded by Commissioner Brunner. Motion passed unanimously. Commissioner Theis moved to appoint Commissioner Brunner as Vice Chairman, Seconded by Commissioner Phillips. Motion passed unanimously. Changes to Section 3. 01 of the City Charter Cammissioner Brunner moved that the recommended changes be sent to the City Council. Seconded by Commissioner Phillips. Motion passed unanimously. Motion to adjourn by Commissioner Theis, seconded by Commissioner Bursch. Motion passed. Section 3.01, Council Meetings Section 3.01 of the Charter provides the following: The City Council shall hold regular meetings at such time and place as it by motion shall determine. Officers elected at the time of the regular municipal election provide for by this charter shall be sworn in and assume the duties of the office to which they were elected on �the first business day of January �t�E�-sc�e�r��s- officers chosen and aualified as such shall CHRRtER CC�rw►.�sSioN r►,NOt�: hol d office until th 'r succ ei essors aualifv. Officers elected at s ecial election shall e p b �fl� a sworn in and assume the duties to which they were elected on any business day or at any City Council meeting after the issuance by the City Clerk of the Clerk's certificate of election. Newly appointed Council members shall take the oath of office and assume the duties of the office upon appointment, or on any business day, or at any Council meeting after being appointed. The Mayor .ar any two members of the Council may call special meetings of the Council upon at least twenty-four (24) hours' written notice to each member of the Council. Such notice shall be delivered personally to each member ar shall be left at the member's usual place of residence with some responsible person. All meetings of the Council shall be in compliance with the Minnesota Open Meeting Law, and any records thereof shall be made available at all reasonable times. Changes to Section 3.10 of the City Charter Commissioner Brunner moved that the recornmended changes be sent to the City Council. Seconded by Commissioner Theis. Motion passed unanimously. Section 3.10, Amendment and Repeal of Ordinances Section 3.10 of the Charter provides the following: Every ordinance repealing a previous ordinance, section orsubdivision thereof shall give the number, if any, and the title of the ordinance to be repealed in whole or part. No ordinance, section, or subdivision thereof shall be amended by reference to the title alone. Such an amending ordinance shall set forth in full each section or subdivision to be amended and shall indicate new matter by underscoring, and the old matter to be omitted, by strikethrou�h method. In newspaper publication of ordinances, the same indications of omitted and new matter shall be used except that italics or bold faced type may be substituted for underscoring and omitted matter be printed ��Y=��: usin� the strikethrou�h method. Administrative Fines Commissioners discussed this topic, but did not have enough information to come to any conclusions. Chairman Leino will contact the City Manager for more information. New Business Recent outgoing Commissioners will be contacted by the Chairman to find out their preference for a gift and date of presentation at the City Council meeting Next scheduled meeting June 23, 2004 at 7:00 PM. Harold Middleton Secretary MINUTES OF THE PROCEEDINGS OF THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER 1N THE COUNTY OF HENNEPIN AND THE STATE OF MINNESOTA CITY COUNCIL WORK SESSION MAY 24, 2004 CITY HALL COUNCIL CHAMBERS CALL TO ORDER The Brooklyn Center City Council met in Work Session and was called to order by Mayor Myrna Kragness at 9:01 p.m. ROLL CALL Mayor Myrna Kragness, Councilmembers Kathleen Carmody, Kay Lasman, Diane Niesen, and Bob Peppe. Also present: City Manager Michael McCauley, Assistant City Manager/Director of Operations Curt Boganey, and Deputy City Clerk Maria Rosenbaum. DISCUSSION OF CHARTER COMMISSION REVIEW OF POTENTIAL CHANGES TO CITY CHARTER Stan Leino, Charter Commission Chair, addressed the Council to discuss the dela in the res onses Y p to the items requested by the Council. Mr. Leino informed that the Charter Commission has had issues with having a Commission Chair and that he is currently the Commission Chair. The minutes from the April 28, 2004, meeting have not been approved; however, he believes that they are in a final format. Mr. Leino discussed that the Charter Commission had discussed the request for changes to Section 3.01 and 3.10 of the City Charter and would recommend the following: Section 3.01: The City Council shall hold regular meetings at such time and place as it by motion shall determine. Officers elected at the time of the regular municipal election provide for by this charter shall be sworn in and assume the duties of the office to which they were elected on e�e�the first business day of January s� �r�* r;*= xilPPtu�D in T�n ��r All officers chosen and aualified as such shall hold office until their successors aualifv. Officers elected at special election shall be sworn in and assume the duties to which they were elected on any business day or at any City Council meeting after the issuance by the City Clerk of th e Clerk s certificate of election. Newly appomted Council members shall take the oath of office and assume the duties of the office upon appointment, or on any business day, or at any Council meeting after being appointed. OS/24/04 -1- DRAFT C I?� �OVNC �t, M�NUTES The Mayor or any two members of the Council may call special meetings of the Council upon at least twenty-four (24) hours' written notice to each member of the Council. Such notice shall be delivered personally to each mernber or shall be left at the member's usual place of residence with some responsible person. All meetings of the Council shall be in compliance with the Minnesota Open Meeting Law, and any records thereof shall be made available at all reasonable times. Section 3.10: Every ordinance repealing a previous ordinance, section or subdivision thereof shall give the number, if any, and the title of the ordinance to be repealed in whole or part. No ordinance, section, or subdivision thereof shall be amended by reference to the title alone. Such an amending ordinance shall set forth in full each section or subdivision to be amended and shall indicate new matter by underscoring, and the old matter to be omitted, by �r�^�-�*� strikethrough method. In newspaper publication of ordinances, the same indications of omitted and new matter shall be used except that italics or bold —faced type may be substituted for underscoring and omitted matter be printed ��r�*�� -a:�� °r*�°�� usin€ the strikethrou�h method. 1 Mr. Leino discussed that the Charter Commission is not comfortable at this time making a recommendation on the request regarding Administrative Fines. They did table this item and will consider discussing further once they have received more information. Council discussed and indicated that there is no longer an interest in pursuing administrative fines for the Crty. Council continued discussions regarding Section 3.01 of the City Charter and the different scenarios that could happen. Mr. Leino informed that they could revisit the language if the Council so desires. Councilmember Peppe left the meeting at 9:20 p.m. Councilmember Lasman made a suggestion about adding more language or considering something like senior votes to take office if an elected official did not qualify. DISCUSSION OF WHO REVIEWS/RECOMMENDS COUNCIL SALARIES; WHO REVIEWS/RECOMMENDS CITY MANAGER SALARY; AND THE SALARY SETTING PROCESSES PAST AND FUTURE This item was discussed at the Study Session. COUNCIL DIRECTION ON SALARY RECOMMENDATION FROM FINANCIAL COMMISSION This item was discussed at the Study Session. OS/24/04 -2- DRAFT Gity Council Agenda Item No. 8c CITY OF BROOKLYN CENTER Notice is hereby given that a public hearing will be held on the 12�' day of July 2004 at 7:00 p.m. at City Hall, 6301 Shingle Creek Parkway, to consider an ordinance relating to the licensing of taxicabs. Auxiliary aids for handicapped persons are available upon request at least 96 hours in I advance. Please notify the Deputy City Clerk at 763-569-3300 to make arrangements. ORDINANCE NO. AN ORDINANCE RELATING TO THE LICENSING OF TAXICABS; AMENDING BROOKLYN CENTER CITY CODE SECTIONS 23-702, 23-703, AND 23-704 AND ADDING NEW SECTIONS 23-706, 23-707, 23-708, 23-709, 23-710, 23-711 AND 23-712 THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER DOES ORDAIN AS FOLLOWS: Section 1. Brooklyn Center City Code Section 23-702 is amended as follows: Section 23-7 02. TAXICAB LI CENSE RE UIRED. Q a. No person shall operate or bermit a taxicab owned or controlled bv that nerson to be onerated ��z:�i�:��] within the City of Brooklyn Center without [cli,��.�iF�� i�� a� �;z�i ��v;.�:�f°��? ��.r��i� �1��:��1 �,�.��1� �;��1 �I�«. :`5�$�t�°��c��i.,,�� ;°�i�°� ��tt: �;c,�:��i�i�� i�l� ��It; 2't�t�l,I;�3°€'1'�"1C:'.I1�,''s ;'i�37t� f.°�.`-:EE.1:1�?. cLt;(�i?7�'l§.0 [<`;ll?>a �i°C�41��1I:„`. ��I`��<?I� 1;�"l�.",P"�i?:�:� I"# �'��1`�9_lf��.? C�l`S"c'-�' ��.liEic�;�tic?�a:�. i��•��:, �-��a��i�� t� t�i�i�.1�:; i��, ��ti��] havin� first obtained a taxicab license from the Citv coverin� both the driver and the taxicab. b. Licenses are valid from Januarv 1 to December 31. c. A license is not reauired for taxicab owners and oberators artici at' n p in� in the Sober Cab nro�ram. This excention annlies when the followine conditions are met: 1. The t�icab is nickin� un the customer at an on-sale liauor establishment within the Citv; 2. The on-sale liauor establishment nlaced the call for service to the taxicab; and 3. The fee far the service is naid bv the liauor establishment. bv a third nartv as nart of a Citv or area wide sober cab nromotion. or the sevice is brovided voluntarilv bv the taxicab owner or onerator. ORDINANCE NO. Section 2. Brooklyn Center City Code Section 23-703 is amended as follows: Section 23-703. [T� F��t::'��> ��E��l`i �b'�: LICENSE APPLICATION. z. �s,f=?. °�C.; 's ,a': .l a. An abblication for a taxicab license must be filed with the Citv Mana�er's designee on a form prenared bv the Citv. The annlicant must comnletelv answer all auestions and nrovide all information reauired on the apnlication form. An annlication bv a business ar�anization mav cover more than one taxicab and more than one driver. b. Before a licensee mav use a new vehicle or a new driver, the licensee must file a new or revised license annlication with all of the information reauired of vehicles and drivers in an orieinal annlication. c. The Citv mav conduct anv and all necessarv investi�ations to verifv the information on the annlication, includin� a criminal historv and driver's license historv inauirv on the annlicant or anv driver. d. License renewal annlications must include all of the information reauired in an ori�inal abnlication. Section 3. Brooklyn Center City Code Section 23-704 is amended as follows: Section 23-704. [��'�T��::�'i'��_�?�] VEHICLE REOUIREMENTS. ��m�3�,�'i €�`::f�,.l��;� I`t�.;r�lc.gE.',€a 447 ,�C" It'�'a`1�"wt;t� ��I.i4 ;'sta:�;�:16?I"! :i��.i�.�� `witl" .>3.�t?� Ic:��-l'l�I��, 3T i:�1t.' ��x��.��.��; a:; ��i��:=. 4:��:: l=.x i�E, �z.�- ;.��:si�.�r ��`i:�ar�A Yc��c��; ��i�� :;��I:I �.�;�i�[�: �:k°s:3�� c��;s1 ,S;"�t.' 4:2� t�t:: ��'t l,'��`�] a. Prior to oneration in the Citv. each taxicab must meet the followin� reauirements: 1. Be marked to clearlv identifv the name of the business or comnanv. the business or comnanv telenhone number, the cab number and rates. The desi�n of the markin� must be annroved bv the Citv Mana�er's desi�nee. 2. Be eauinned with an accurate. oneratin� meter, and an oneratin� radio or telenhone; and ORDINANCE NO. 3. Have nassed an insnection at a aualified service station or �ara�e that emblovs a master ASE (Automotive Service Excellencel Technician. The Citv reserves the ri�ht to examine and insnect taxicabs in Citv facilities. 4. Be clean. nainted, and free from rusted metal and substantial bodv dama�e. The vehicle must have no loose han�in� metal, bodv moldin� or chrome strinning. The vehicle must have all reauired fenders, bumners, doors, door handles and li�hts, all of which must be in �ood workine order. b. Each licensed taxicab must be insnected annuallv or as otherwise reauired bv the Citv. Section 4. The Brooklyn Center City Code is amended by adding a new Section 23-706: Section 23-706. LICENSEE MINIMUM REpUIREMENTS. a. An abnlicant for a taxicab license must: 1. Be the owner or lessee of the vehicle or vehicles for which a license is reauested: 2. If an individual, be at least 18 vears of a�e. and if a cornoration or association, be nroberlv chartered or authorized to do business as such under state law; and b. All drivers must have a valid State of Minnesota driver's license. Section 5. The Brooklyn Center City Code is amended by adding a new Section 23-707: Section 23-707. DISOUALIFICATIONS. a. Excent as allowed under Minnesota Statutes. Chanter 364, the followine bersons are disaualified from obtainin� a taxicab license or from drivin� or oneratin� a taxicab: 1. Persons convicted of a violation of Minnesota Statutes S 609.185 to 609.21 (murder, criminal vehicular homicide and iniurvl: 2. Persons convicted of a violation of Minnesota Statutes 609.221 to 609.223 (assault in the first, second or third de�ree): 3. Persons convicted of a violation of Minnesota Statutes 609.342 to 609.3451 (criminal sexual conduct); 4. Persons convicted of a violation of 617.23. subdivisions 2 or 3(felonv or �ross misdemeanor indecent exuosurel; ORDINANCE NO. 5. Persons convicted of anv nrovision of Minnesota Statutes. Chanter 152 (controlled substancesl that is nunishable bv a maximum sentence of 15 vears of more; 6. Persons convicted of anv nrovision of Minnesota Statutes, Chanter 169 or 169A involvin� drivin� under the influence, leavin� the scene of an accident or reckless or careless drivin�; 7. Persons who have been adiud�ed le�allv incomnetent bv reason of inental illness. mental deficiencv. or inebrietv: 8. Persons who have been convicted of a crime of violence or theft, a sex crime, or a crime involvin� the ille�al use of dru�s, other than crimes listed in para�ranhs (1), (2), (3), (41 or (5): and 9. Persons who have drivin� violations not listed in naraeranh (61 within five vears brior to the license aunlication. b. The Citv Council mav allow a nerson to be eli�ible to drive a taxicab or issue a license to a nerson who has been convicted of drivine under the influence or a crime involvin� the ille�al use of dru�s if the nerson has successfullv comnleted a treatment bro�ram that has been apnroved bv the Citv Mana�er's desienee and the violation occurred five or more vears prior to the anblication. Section 6. The Brooklyn Center City Code is amended by adding a new Section 23-708: Section 23-708. INSURANCE REOUIRED. The Citv will not issue a taxicab license until the annlicant has filed with the Citv Manager's desi�nee an insurance nolicv, a certificate of insurance or insurance binder. subiect to approval as to form bv the Citv Attornev. that evidences that the owner of the taxicab is insured a�ainst claims, demands or losses in the minimum amounts of $150,000 for a sin�le iniurv or death in a sin�le accident and at least $300,000 for more than one iniurv or death in a sin�le accident and $25,000 for nronertv damage. The nolicv must contain a clause obli�atin� the insurer to �ive a 10-dav written notice to the citv for cancellation. Section 7. The Brooklyn Center City Code is amended by adding a new Section 23-709: Section 23-709. BUSINESS RECORDS. a. The taxicab comnanv, owner. or lessee of the vehicle must maintain order slins ubon which are recorded all trins reauested showin� the time and nlace of ori�in and the destination of each trin. Order slins must be retained and nreserved, in chronolo�ical order, in a safe nlace for at least the calendar vear. All order slins must be available to the Citv. ORDINANCE NO. b. The taxicab comnanv, owner. or lessee of the vehicle must maintain current business records. includin�, but not limited to informatiori on all drivers and vehicles, at their designated nlace of business. Such business records must be made available for insnection bv the Citv durin� reasonable business hours. Section 8. The Brooklyn Center City Code is amended by adding a new Section 23-710: Section 23-710. PROCEDURE AT CAB STANDS. Taxicab drivers waitin� at a cab stand must allow nrosnective nassengers to freelv choose a taxicab. Drivers mav not refer or encouraee a nrosnective nassenger to a barticular taxicab. Section 9. The Bro okl Center Cit Code is amended b addin a new Section 23-711: Yn Y Y g Section 23-711. REVOCATION OF LICENSE. A taxicab license mav be revoked bv the Citv Council if the licensee has violated anv brovisions of this ordinance. or state or federal law. which violation, in the Citv Council's d� c is retion, reflects unfavorablv on the fitness of the licensee to offer nublic transnortation. Section 10. The Brooklyn Center City Code is amended by adding a new Section 23-712: Seetion 23-712. PENALTY. Anv nerson. firm or cornoration who violates anv nrovision of this Ordinance is, unon conviction. �uiltv of a misdemeanor. The nenaltv that mav be imnosed for a misdemeanor is a sentence of not more than 90 davs or a fine of not more than $1,000. or both. Sectian 11. This ordinance shall become effective after adoption and upon thirty (30) days following its legal publication. Adopted this day of 2004. Mayor ATTEST: City Clerk Date of Publication: Effective Date: (Underline indicates new matter; brackets indicate matter to be deleted.) Office of the City Clerk City of Brooklyn Center A Millennium Community MEMORANDUM TO: Michael J. McCauley, City Man ¢er FROM: Sharon Knutson, City Clerk 'n�� U ��GU�'��"' ��V�r� DATE: July 7, 2004 SUBJECT: An Ordinance Relating to the Licensing of Taxicabs; Amending Brooklyn Center City Code Sections 23-702, 23-703, and 23-704 and Adding New Sections 23-706, 23-707, 23-708, 23-709, 23-710, 23-711 and ,23-712� At its June 14, 2004, meeting, the Brooklyn Center City Council approved first reading of An Ordinance Relating to the Licensing of Taxicabs; Amending Brooklyn Center City Code Sections 23-702, 23-703, and 23-704 and Adding New Sections 23-706, 23-707, 23-708, 23-709, 23-710, 23-711 and 23-712. The second reading and Public Hearing are scheduled for July 12, 2004. Notice of Public Hearing was published in the Brooklyn Center Sun-Post newspaper on June 24, 2004. If adopted, effective date will be 30 days following its legal publication, August 21, 2004. Materials that were included in the June 14, 2004, Council agenda are also attached. Attachments 6301 Shingle Creek Parkway Recreation and Community Center Phone TDD Number Brooklyn Center, MN 55430-2199 (763) 569-3400 City Hall TDD Number (763) 569-3300 FAX (763) 569-3434 FAX (763) 569-3494 www. cityo fb rookZyncenter. org ��pOKLYN CENt BROOKLYN CENTER POLICE DEPARTMENT POLICE e i MEMORANDUM TO: Michael McCauley, City Manager FROM: Scott Bechthold, Chief of Police DATE: May 18, 2004 SUBJECT: Taxicab Ordinance Update A copy of the proposed Taxicab Ordinance was mailed to Tim Crandall, a Brooklyn Center resident and t�icab owner/operator, to review and address any concerns regarding the ordinance and how it would affect the taxicab industry. Lt. Curtis Lund met with Mr. Crandall and discussed in length with him each section of the ordinance. Mr. Crandall is of the opinion that the proposed ordinance is a very workable ordinanee and made the following suggestions: l. Section 23-704a3. VEHICLE REOUIREMENTS Mr. Crandall indicated that ASE (Automotive Service Excellence) is only one of a few organizations that train and certify mechanics in automabile repair. Mr. Crandall suggests a wording change similar to an established and rebutable service station or �ara�e which emnlovees exnerienced and trained mechanics. Mr. Crandall feels that in doin so it would allow an owner/o erator to utilize the g p services of a qualified service station or garage who may employee experienced mechanics trained by an organization other than ASE. I propose no change in the current language. The ASE certification is the industry recognized standard for reputability. The suggestion offered by Mr. Crandall is too vague and would require the police department to research certification standards for each of the signing mechanics and garages. 2. Section 23-707. DISOUALIFICATIONS. Mr. Crandall would like to see language similar to within five vears prior to the license apnlication and the successful comnletion of a treatment nro�ram added to paragraph as it relates to driving under the influence and in paragraph (h) as it relates to illegal drug use. It is my opinion that Mr. Crandall's proposed language change regarding the above is reasonable and merits a five-year limitation rule. 3. Mr. Crandall would also like to see an EXEMPTION added to the ordinance where taxicabs not licensed in the City of Brooklyn Center would be exempt from licensing when nickin� un natrons from a bar in the Citv. Mr. Crandall indicates that he and a number of other owner/operators participate in the Sober Cab program. The number of owner/operators that participate in the program, that would purchase City of Brooklyn Center taxicab licenses, would not be sufficient enough to provide the service to this area. The Sober Cab program would rely on using Sober Cab participants from the surrounding Metro area who do not run taxicabs in Brooklyn Center. Mr. Crandall's concern is tfiat if these Sober Cab participants are not exempt from the Brooklyn Center licensing ordinance the Sober Cab service to the area would be greatly reduced setting up the potential for an impaired person getting behind the wheel of a vehicle rather than waiting for a Sober Cab. I am not in opposition to this suggested change in language other than ordinance language needs to be specific that unlicensed cabs are actively participating and operating under the established guidelines and timeframes of the Sober Cab campaign. SB/cl Cily of MEMORANDUM anooxLYN CENTER DATE: 3uly 7, 2004 TO: Michael McCauley, City Manager r FROM: Todd Blomstrom, Director of Public Works SUBJECT: Brooklyn Boulevard Corridor Traffic Study In 2003, the City of Brooklyn Center entered into cooperative agreements with Hennepin County and the Minnesota Department of Transportation to conduct a corridar traffic atudy along Brooklyn Boulevard between 49 Avenue North and T.H. 100. The purpose of the traffic study is to address traffic safety concerns along Brooklyn Boulevard and evaluate the potential �Zeed for signal installations, turn lane additions, or realignment of certain intersections within the traffic study area. The consulting firnl TKDA was retained to conduct the traffic study and has provided a preliminary draft of the study report. A copy of the draft report is attached for your review. The report provides a summary of the following basic traffic issues along the study corridor. 1. History of technical studies and council actions concerning traffic issues within the study area 2. Summary of multi jurisdictional involvement by Mn/DOT, Hennepin County and the City of Brooklyn Center to address traffic issues within the study area 3. Results of recent traffic modeling and analysis for the existing intersections along the corridor 4. Options for potential intersection and traffic control improvements identified as part of the traffic study 5. Recommendations for future action City staff is requesting some general feedback regarding the contents and recommendations contained in the report prior to nleeting with representatives from Mn/DOT and Hennepin County to consider future actions. A brief synopsis of the report can be presented at the next City Council meeting at your request. DRAFT SUMMARY REPORT BR40KLYN BOULEVARD (CSAH 152) CORRIDOR TRAFFIC STUDY (49TH AVENUE NORTH TO T.H. 100) CITY OF BROOKLYN CENTER, MINNESOTA IN COOPERATION WITH HENNEPIN COUNTY, MINNESOTAAND THE MiNNESOTA DEPARTMENT OF TRANSPORTATION �,ti�J11N�� QR Date: July 6, 2004 City Project No. Comm. No. 12909-01 1500 Piper Jaffray Plaza 444 Cedar Street Saint Paul, MN 5510i-2i40 x..,_ ENGINEERS ARCHITECTS PLANNERS �s5�� zs2-aaoo (651)292-0083 Fax a�ww.tkda.com T��A SAINT PAUL, MINNESOTA JULY 6, 2004 ENGINEERS ARCHITECTS PLANNERS ENGINEERiNG SUMMARY REPORT BROOKLYN BOULEVARD CORRIDOR TRAFFIC STUDY CITY OF BROOKLYN CENTER, MINNESOTA CITY PROJECT NO. TKDA COMMfSSION NO. 12909-01 I hereby certify that this Preliminary Engineering Report was prepared by me or under my direct supervision and that I am a duly Licensed Professional Engineer under the laws of the State of Minnesota. Scott A. Brink, P.E. License No. 17657 12909-01 1 BROOKLYN BOULEVARD CORRIDOR TRAFFIC STUDY CITY OF BROOKLYN CENTER, MINNESOTA CITY QF BROOKLYN CENTER, MINNESOTA CITY PROJECT NO. COMMISSION NO. 12909-01 TABLE OF CONTENTS PAGE NO. 1. INTRODUCTION AND SUMMARY 3 2. HISTORY/BACKGROUND 4 3. CORRIDOR STUDY AND ANALYSIS 6 4. RECOMMENDATIONS 10 5. SUMMARY AND CONCLUSION 14 APPENDIX PAGES PROJECTLOCATION MAP 1 PROPOSED IMPROVEMENT MAPS ........................................................................................1-5 LEVEL OF SERVICE (LOS) CHART ............................................................................................1 PRELtMINARY 12909-01 2 1. INTRODUCTION AND SUMMARY Traffic issues and concerns in the segment of Brooklyn Boulevard (CSAH 152) between T.H. 100 and 49th Avenue North have been expressed, discussed, and studied considerably for well over the past 20 years. In particular, much of the focus on these issues has been centered on the triangular shaped area bounded by Brooklyn Boulevard, T.H. 100, and the C.P. Railroad, often referred to as the "Happy Hollow Neighborhood". The issues discussed have included cut- through traffic from T.H. 100 and access to Brooklyn Boulevard (CSAH 152). Solutions to traffic concerns have not always been easy to identify and implement. Compounding the problem has been the fact that three different agencies have a regulatory role or stake in this roadway corridor. Although the City has typically been serving as the lead agency in studying traffic problems in this area, Brooklyn Boulevard itself is under the jurisdiction of Hennepin County and the ramps at T.H. 100 are under the jurisdiction of MnDot Proposed and eventual construction of majar improvements to nearby T.H. 100, and resulting impacts on traffic have played a role in this issue as well. Priorities and available funding of each of the three agencies have also played significant roles in the ability and/or inability to engage in specific solutions to traffic issues. As explained further in this report, some solutions have been implemented (such as elimination of cut-through traffic from T.H. 100 to SOth Avenue North), while other problems remain (access to Brooklyn Boulevard from 51 st Avenue North). SUMMARY In summary, the report findings indicate that the traffic corridor functions well below capacity, and that the safety and level of service (including access) at each intersection is within acceptable levels for a comparable roadway of this level in Hennepin County. From a multi- jurisdictional standpoint, study findings would not appear to give cause or a sense of urgeilcy to allocating or expending significant funds for improvements witl�in the corridor. However, access to Brooklyn Boulevard (particularly at S l st Avenue North) continues to be expressed as a concern from at least some property owners within the corridor. The report does identify that intersection as a location where specific improvement alternatives may be considered to increase safety and levei of service. It is recommended that these alternatives be evaluated further to ascertain feasibility and possible implementation of an improvement. It is also recomrnended that the City continue to work with Hennepin County and MnDot to improve I the timing coordination and efficiency of traffic signals throughout the corridor. 12909-01 3 2. HISTORY/BACKGROUND Traffic issues and concerns in the segment of Brooklyn Boulevard between T.H. 100 and 49th Avenue Nortl� have been expressed, discussed, and studied considerably often over the past several years; as early as the early 1980's. More specifically, the triangular area bounded by Brooklyn Boulevard, T.H. 100, and the CP Railroad tracks (also known as the Happy Hollow neighborhood) has been a major focus of these past discussions. Many of the initial concerns and complaints were related to T.H. 100, prior to the current T.H. 100 improvements. These concerns eventually included Brooklyn Boulevard and nearby streets as well. Initially, many of the original complaints originating from the Happy Hollow neighborhood were related to the speed and volume of vehicles on SOth Avenue North which previously connected directly with T.H. 100. In the late 1980's (with the then pending improvements to T.H. 100 beginning to be discussed), complaints were also received regarding minor traffic congestion at the intersection of 51 st Avenue North with Brooklyn Boulevard. At that time, City staff brought these issues to the attention of the City Council, which in turn, formally requested Hennepin County to review existing conditions on Brooklyn Boulevard between 49th Avenue and T.H. 100, and to develop plans for safety access and improvements. The City also hired a consultant (S.E.H., Inc.} to independently review this issue. Formal studies at that time found that the intersection of Brooklyn Boulevard and S lst Avenue North nlet signal wanants. The intersection of Brooklyn Boulevard and the TH 100 south ramp was also reviewed and determined not warranted for a signal. As a result, Hennepin County was willing to pay 50 per cent of the cost of a traffic signal at S l st, provided the City provided the other 50%. In December of 1990, the City Council reviewed this information and on a 2-3 vote, declined to request Hennepin County to go forward with signalization. The City CounciLalso considered but declined to take action requesting MnDot and Hennepin County to consider installation of a traffic si nal at the TH 100 ram so that the ram directl connectin TH 100 g P P Y g and SOth Avenue could be closed. Direction to staff was to wait until TH 100 improvement plans were presented to the City by MnDot before formally addressing the issue further. In 1999 with pending TH 100 improvements looming closer and further requests received from residents to close the TH 100/SOth ramp, the issue was resurrected and again presented to the City Council. At that time, staff recommended closure of the SOth Avenue ramp by Mn/Dot, provided that signal system improvements be pursued at the south rarnp terminal. A resolution was passed (April 12, 1999) by the Council requesting Mn/Dot and Hennepin County to consider this signal system and mave closure of the SOth Avenue ramp. Mn/Dot and the County requested further study and discussion regarding this request, and an update of the 1990 study was perfornled by S.E.H. Representatives of tl�e City, County, and MnDot met in January of 2000 to review and discuss the updated study. The study considered impacts to local streets based on the anticipated future design and construction of T.H. l 00,which included closure of the SOth Avenue ramps. This included a review of the TH 100 south ramp terminal. Although the S.E.H. report did note that the level of service at the south ramp terminal (particularly left turns on to Brooklyn Boulevard) 12909-01 4 would be poor, enough adequate gaps would still exist. The report therefore did not recommend the installation of a signal, at least at that time. MnDot also indicated that they would not �favor a� signal unless additional warrants were met. The group essentially concurred that traffic movements and levels would need to be carefully monitored upon closure of the SOth Avenue ramp. In August of 2001, MnDot conducted a traffic analysis at Brooklyn Boulevard and S l st Avenue North to further assess the need for a signal. Although the SOth Avenue ramp was not yet closed, MnDot factored this consideration into their analysis. Their analysis concluded that a signal was not warranted, but recommended further monitoring of traffic, particularly after conclusion of construction activity and stabilization of driving patterns. After the SOth Avenue ramp was subsequently closed, City staff again raised the issue with Hennepin County and MnDot in August of 2002. MnDot reported that a recent analysis concluded that a signal was not warranted at the TH 100 soutll ramp tenninal. A signal warrant analysis for the 51 st Ave. intersection was subsequently prepared by TKDA, Inc. (consulting engineer), and presented and discussed at a meeting among the 3 agencies in February of 2003. The analysis indicated that a signal at the intersection of Brooklyn Boulevard and 51 st Avenue North was warranted. However, the County requested that the entire Brooklyn Boulevard corridar be reviewed (from 49th Avenue North to the TH 100 north ramp) to fully understand and serve the best course of action. This would include consideration of all possible alternatives for improving traffic movement and safety, including improved timing coordination of existing signals, new signals, geometric improvements, or other possible measures. Late in 2003 a i con dor study and analysis was subsequently completed. Additional field observations, traffic counts, compilation of data, and traffic simulation analyses were all conducted as part of the study. This corridor study was funded jointly by MnDot, Hennepin County and the City, and required approval through the formal processes of those agencies. Additional field observations, traffic counts, compilation of data, and traffic simulation analyses were all conducted as part of the study. Eventually, the study was cornpleted, presented to the agencies and discussed in November of 2003. The report findings indicated that the traffic corridor functions well below capacity, and that the safety and level of service (including access) at each intersection were within acceptable levels far a comparable roadway of this level in Hennepin County. It was further determined that geometric improvements to the intersection at 51 st Avenue (including the adding of a right turn lane for westbound 51 st and a dedicated left turn lane for southbound Brooklyn Boulevard) would eliminate the warrant for a signal at that location. As a result, the general consensus of the agencies was that additional signal installations within the corridor were not necessary. It was agreed that proposed geometric improvements at 51 st Avenue North should be pursued further, and that improved timing and coordination of existing signals be investigated by MnDot and Hennepin County. 12909-01 5 3. CORRIDOR STUDY AND ANALYSIS In 2003, a traffic corridor study was completed by TKDA and included the conducting of field observations and a traffic simulation analysis. The study concluded that the Brooklyn Boulevard corridor functions well below eapacity. The minor approaches to the mainline experience some delay, but on the whole the corridor functions well in comparison to similar roadways. An analysis of each intersection, including levels of service was also provided. These findings were discussed by representatives of the City, County, and MnDot in November of 2003. Basis of Study TKDA received the most recent and updated traffic volumes and turning movement counts from Hennepin County and MnDot. These figures were supplemented with additional counts conducted by TKDA. The Metropolitan Council traffic analyst was also contacted to obtain historic and projected volumes along Brooklyn Boulevard. From examination of this data, it was determined that traffic volumes in the study area historically have not increased a great deal from year to year and are anticipated to grow in the future at a rate of 0.5% 1.0% annually. TKDA received updated crash data from MnDot and Hennepin County. It was noted that the southbound left turns oi� Brooklyn Boulevard to S l st Avenue have caused a fair number crashes, but not an excessive amount. It was also noted that roughly 90% of traffic at S lst Avenue makes a right turn onto northbound Brooklyn Boulevard. After reviewing the data, it was concluded that the corridor does not have higher than average crash problems by comparison with similar roadways. Each intersection within the corridor had crash rates within the County's acceptable limits. Traffic Operations by Intersection The signal analysis software SYNCHRO and corridor simulation software SIMTRAFFIC were utilized to create a model of the study area to determine traffic operations and measures of effectiveness at each intersection. A table has been attached to provide identifications af what a specific Level of Service (LOS) means. 49th Avenue Si�nalized, 4-Le��ed Intersection Year 2002 Conditions This overall intersection operates at LOS A in both the AM and PM peak hours and experiences little overall delay. The movement that has the highest amount of delay is the PM peak hour westbound left turn, which experiences 27.1 seconds of delay, a grade scale of LOS C. Year 201 S Conditions This intersection will continue to operate at LOS A for both the AM and PM peak hours. 12909-01 6 SOth Avenue Unsi�nalized, T-intersection. Ston on Minar Annroach Y r ea 2002 Condat�orzs With the low volume of vehicles using the minor approach (from the west), this intersection operates at LOS A in botl� the AM and PM peak hours and experiences very little overall delay. Yettr 201 S Conditions This intersection will continue to operate at LOS A for both the AM and PM peak hours. 51 st Avenue Unsi�nalized. 4-Le��ed Intersection. Stons on Minor A�nroaches Year 2002 Conditions This intersection operates at LOS A in both the AM and PM peak hours and the mainline approaches e�.perience little delay. However, the east approach does experience a fair amount of delay (ranging from 21.4 48.5 seconds) due to drivers experiencing difficulty finding gaps in the traffic flow and the existing single lane configuration. Year 201 S No-Build Conditions This intersection as a whole will operate at LOS A for both the AM and PM peak hours. However, the east approach will operate at a much lower level as a result of the high amount of delay (ranging from 37.3 105.6 seconds) in the PM peak hour. A second westbound approach lane will therefore be needed in the future. Year 201 S Build Conditions By adding a southbound exclusive left turn lane and a westbound exclusive right turn lane to this intersectian, it will operate at LOS A for both the AM and PM peak hours. Possible improvements to the intersection of 51st Avenue and Brooklyn Boulevard were discussed among the three agencies. In the short term, there was a consensus that the westbound S l st Avenue approach would operate at a higher efficiency by adding and striping a right turn lane in. By doing so, the right turning vehicles would have their own lane and as a result, the intersection would not meet signal warrants due to the increased operation efficiency. However, additional survey data is needed to determine if a right turn lane can be added within the existing right of way limits. In the longer term, southbound Brooklyn Boulevard should be reconfigured to provide for the addition of an exclusive southbound left turn lane. The west approach on 51 st Avenue/Lilac Dr. should also be reconfigured to line up directly across from the east leg of the intersection. The west approach would consist of a thru-left lane and an exclusive right lane. The acquisition of additional right of way would be needed to provide for this scenario. Construction optians to improve operation and safety at the 51 st Avenue intersection are outlined further in this report. 12909-01 7 Northbound TH 100 Off-Ramb Unsignalized, T-intersection. Stob on Minor Approach Year 2002 Conditions Overall, this intersection operates at LOS A in both the AM and PM peak hours. The movement that experiences the greatest amount of delay is the westbound left turn onto Brooklyn Boulevard, which has a delay of 36.6 seconds, resulting in LOS E. Year 201 S Conditiolis This overall intersection will continue to operate at LOS A for both the AM and PM peak hours. However, the delay experienced in the westbound left turn onto Brooklyn Boulevard will increase to 53.7 seconds, resulting in LOS F. This intersection may need to be studied again in the future to see if the minor approach left turning vehicle volumes meet signal warrants. The addition of a 4th leg to the Northbound TH 100 Off-Ramp (including possible signal installation) and removing the west approach access off of Brooklyn Boulevard at S l st Avenue was discussed among the agencies. The following issues were identified with this option: 1. The addition of a 4th leg would not eliminate the problems with left turn delays and crashes at the 51 st Avenue intersection. 2. The addition of a 4th leg would potentially degrade the levei of service at the northbound T.H. 100 ramp intersection and could potentially require an additional traffic signal along the corridar. 3. The addition of a 4th leg would result in significant design challenges due to the angle and close proximity to T.H. 100. 4. Significant portions of right of way would need to be acquired in order to rebuild the intersection. 5. In order to add a 4th leg to the intersection, grade and elevation differences wauld need to be addressed. This could have an impact to the north side of the church property, specifically to the north parking lot and entrance driveway. 6. The addition of a 4th leg would involve significant costs, particularly if the additional leg would require the installation, operation, and maintenance of a traffic signal at this location. Improvements would be limited to only serving primarily two properties immediately south of T.H. 100 on the west side of Brooklyn Boulevard. 12909-01 Southbound TH 100 Off-Ramt� Si�nalized. 4-Leeeed Intersection Year 2002 Conditions The overall intersection operates at LOS B in both the AM and PM peak hours. The movement that experiences the most delay is the northbound left turn onto TH 100 southbound, which experiences 30.2 seconds of delay in the PM peak hour. Year 201 S Conditions This intersection will continue to operate at LOS B for both the AM and PM peak hours. Traffic Signal Timing Coordination The coordination of traffic signals on Brooklyn Boulevard from the SB TH 100 Off-Ramp to the Bass Lake Road intersection was also discussed. As of this date, the three signals do not run peak period timing plans and are not coordinated. The reason for coordinating the signals would be to increase the green times for the mainline and by doing so the traffic operations and efficiency along Brooklyn Boulevard would improve. Further cooperation between Hennepin County and MnDot would be required to advance coardination of the traffic signals further. 12909-01 9 4. RECOMMENDATIONS As previously discussed, it was determmed that the Brooklyn Boulevard corridor functions well below capacity. The minor approaches to the mainline experience some delay, but on the whole the corridor functions we1L However, sonle improvements may still be made. It is recommended that improvements to the 51 st Avenue intersection with a southbound exclusive left turn lane and a westbound right turn lane be considered further. With the addition of these turning lanes, this intersection would not meet traffic signal warrants, and safety would be greatly enhanced. In addition, the timing coordination of the existing signals can be improved. Existing traffic signals within the corridor could operate time-of-day coordination plans, rather tl�an running stand-alone semi-actuated plans. This would be expected to create longer green times for both the mainline and the minor movements and, in turn, create more gaps for the minor movements at �he unsignalized intersections. 1. Traffic Si�nal Coor�dination After discussion with Hennepin County, it was determined that it would not be feasible to tie time-of-day signal timing plans for the southbound TH 100 ramp iilto the existing signal coordination plan along Brooklyn Boulevard unless the signal is interconnected. Therefore, the following list of recommendations is provided as part of the initial traffic study for improving traffic signal timing along Brooklyn Boulevard: 1. The southbound TH 100 ram should not be an isolated si nal without coordination with P g any adjacent signals. This signal should be tied into the timing plan that is in place on Brooklyn Boulevard starting at SSth Avenue and running north to 69th Avenue/CSA�I 130. This could be accomplished by interconnecting the southbound TH 100 ramp signal with the signal at SSth Avenue when the ramp signal is reconstructed, which is scheduled to occur in the near future. 2. The Brooklyn BoulevardlBass Lake Road intersection should be analyzed during the peak hour to determine level of service and to identify any intersection deficiencies. The County has received complaints about the poor operation of this intersection and has placed it into free operation at all times of the day. The need to shift this intersection from a coardinated operation to a free operation may be an indication that the intersection lacks capacity for the volumes it receives. Traffic volumes should be counted in the AM, PM and off-peak hours to obtain existing levels of service and identify intersection deficiencies. 3. The Brooklyn Boulevard/Bass Lake Road intersection is a key intersection for two corridors. It should contain a master controller, handling tbe timing plans for� both the corridors that pass through it. The Brooklyn Boulevard coordination plan stretches from SSth Avenue to 69th Avenue/CSAH 130, with a total of 7 signals. A second timing plan runs along Bass Lake Road from Brooklyn Boulevard to Shingle Creek Parkway, with a total of 3 intersections. Shifting control of both of these corridors to a single master 12909-01 10 controller at the Brooklyn Boulevard/Bass Lake Road intersection may require considerable effort on behalf of the County. 4. The County may wish to conduct a signal timing study along the Brooklyn Boulevard and Bass Lake Road corridors to analyze the existing timing plans. The study would determine tl�e most efficient timing plans, and the new plans could then be implemented in the field by County personnel. 2. Brooklvn Boulevard/SI st Avenue Imn��oveinents Following are four (4) options providing for improvements to the intersection of S l st and Brooklyn Boulevard. The goal of each of the four options is to add a southbound left turn lane on Brooklyn Boulevard, and to add a westbound right turn on S l st Avenue North, and to align both the east side and west side legs of the intersection. It should be noted that the existing right-of-way on Brooklyn Boulevard south of S l st Avenue is 62' wide and the existing right-of-way on 51 st A��enue on the east side of Brooklyn Boulevard is 50' wide. It should also be noted that there is no viable option available to add a southbound left turn lane without having to complete some roadway widening and sidewalk reconstruction, acquiring at least some right of way, and performing striping modifications. Broolzlyn Bouleva�°d Optio�2s (Adding Southbound Left Turn Lane) Obtion 1 Option 1 would shift the southbound lanes to the west in order to carve in an exclusive left turn lane. The southbound lanes would be shifted into the existing right turn lane and then transitioned back using a 35:1 taper. Pros: Property impacts would be located in only one quadrant, the southwest quadrant of the intersection. The northbound lanes would not be disturbed. i Cons: The exclusive southbound ri ht turn lane would be sacrificed and turned into a g shared through-right turn lane. The sidewalk running parallel to Brooklyn Boulevard would need to be relocated and would add to the right-of-way acquisition required. 12909-01 11 Option 2 Option 2 would taper the northbound lanes to the east in order to carve in the exclusive soutllbound left turn lane. The northbound lanes would be shifted to the east and then transitioned back using a 35:1 taper. Pros: The southbound lanes would not be disturbed. Cons: The residence in the northeast quadrant would be located very near the sidewalk and roadway and might need to be purchased outright. Option 3 Option 3 would taper both the northbound and southbound lanes in order to carve in the exclusive southbound left turn lane. By tapering both directions, it would split the difference in irnpacts to adjacent property owners on each side of Brooklyn Boulevard. Pr°os: Adjacent property owners would be disturbed less than under Options 1 and 2. Cons: Both sides of Brooklyn Boulevard would be widened, resulting in a need for more right-of-way and construction. Option 4 Option 4 would shift the southbound lanes to the west in order to carve in a southbound left turn lane. The southbound lanes would be shifted into the existing right turn lane and then transitioned back using a 15:1 taper. A 15:1 taper is a quick taper for the 85th percentile speed (around 40 mph). It is not the preferred option, but is an allowable taper by AASHTO standards. By using this 15:1 taper, construction would be limited to approximately 165' from the intersection and it would be completed entirely on the west side of Brooklyn Boulevard. It would require some right-of-way acquisition and roadway and sidewalk reconstruction. 12909-01 12 SI st Avenue Options Provosed Imnrovement The proposed improvement would involve widening 51 st Avenue east of Brooklyn Boulevard from 30' to 36', adding 3' on both the north side and south sides of the existing roadway. The additional 6' will permit an exclusive right-turn lane to be carved in. Pros: The existing right-of-way may be sufficient for the reconstruction. The sidewalk on the south side of the street may not be affected by road widening. Cons: Parking would need to be removed on both the north and south sides of the street for at least 150'. Obtional Imbrovement An optional improvement would involve aligning the west side of Brooklyn Boulevard with the east side and adding an exclusive left-turn lane. P�°os: The intersection would be aligned. Cons: The residence in the southwest quadrant would almost certainly need to be purchased for right of way purposes. 5. SUMMARY AND CONCLUSION 12909-01 13 It is recommended that the feasibility of providing improvements to the intersection of 51 st Avenue and Brooklyn Boulevard be considered further. This would include a determination of the estimated cost of each of the four improvement options (for the addition of turning lanes) as previously described in this report. At this time, the specific construction cost of each option is unknown. More specifically, differing locations of right of way will be required under each option, and further field surveys and preliminary design would be required to define costs further. It is reconunended that the City engage in further efforts to refine design options and costs, and determine the feasibility of construction an improvement at the intersection. It is also recommended that Hennepin County be approached to participate in funding such an improvement. It is also recommended that the City continue to work with Hennepin County and MnDot to improve the timing coordination and efficiency of signals tllroughout the Brooklyn Boulevard corridor, and to continue to monitor and track traffic levels throughout the corridor. 12909-01 14 APPENDIX CORRIDOR LOCATION MAP PROPOSED ALTERNATIVES LEVEL OF SERVICE (LOS} CHART 1 12865-01 Intersection Level of Service (LOS) Criteria l Unsignalized Intersections Signalized Intersections Average Average I Delay Delay LOS Description (sec/veh) Description (sec/veh) A Little or no conflicting tra�c 10.0 Uncongested operations; all 10.0 for minor street approach. queues clear in a single cycle. B Minor street approach begins to 10.1– 15.0 Very light congestion; an 10.1 norice presence of available occasional phase is fully 20A gaps. utilized. C Minor sh�eet approach begins 15.1 25 A Light congestion; occasional 20.1 experiencing delay while queues on approaches. 35A waiting for available gaps. D Minor street approach 25.1 35.0 Significant congestion on 35.1 experiences queuing due to a critical approaches, but 55A reduction in available gaps. intersection is functionaL E Extensive minor street queuing 35.1 50.0 Severe congestion with some 55.1 80A due to insufFicient gaps. longstanding queues on critical approaches. F Insufficient gaps of su�cient I 50.0 Total breakdown, stop-and-go 80A s i z e t o a l lo w minor s tree t tra f f ic operation. to safely cross through major traff'ie stream. 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McCauley, City Manager FROM: Sharon Knutson, City Clerk DATE: July 7, 2004 SUBJECT: Mayoral Appointment to Planning Commission Planning Commission (one vacancy) The Planning Commission is composed of a chairperson and six members. There exists one vacancy on the commission due to the resignation of Stephen Erdmann. The expiration of the term is December 31, 2005. Notice of vacancy on the Planning Commission was posted at City Hall and Community Center and on the City's web site and aired on Cable Channel 16 from May 7, 2004, through June 8, 2004. An e-mail was sent to Sarah Bingaman Schwartz at Brooklyn Center Sun-Post requesting the notice be published in the May 13, 2004, edition. A letter was sent to those persons who previously had submitted an application for appointment to a Brooklyn Center advisory commission informing them of the vacancies and requesting that tliey call the City Clerk if they are interested in applying for either commission. They were given the choice of either reapplying or having their application previously submitted considered. Notices were also sent to current advisary commission members. Attached for City Council Members only is a copy of the application received: Shawn Taylor 3955 69th Avenue North A letter was sent to the applicant notifying him that his application for appointment would be considered at the July 12, 2004, City Council meeting. Other attachments include: 1) Procedures for filling commission vacancies adopted by the City Council on March 27,1995. 2) Memorandum from Mayor Kragness indicating her nomination. 3) Planning Commission geographical distribution of current members and applicant. 4) City advisory commission bylaws and City Council Resolutian establishing Planning Commission duties and responsibilities. Recommended Council Action: Motion by Council to ratify the Planning Commission nomination by Mayor Kragness with term expiring December 31, 2005. 6301 Shingle Creeh Parhway Recreation and Community Center Phone TDD Number Brooklyn Center, MN 55430-2199 (763) 569-3400 City Hall TDD Number (763) 569-3300 FAX (763) 569-3434 FAX (763) 569-3494 www: cityofbrooklyncenter.org City of Brooklyn Center Procedures for Filling Commission/Task Force Vacancies Adopted by Counci13i27/95 The following process for filling commission/task force vacancies was approved by the City Council at its Maxch 27, 1995, meeting: Vacancies in the Commission shall be filled by Mayoral appointment with majority consent of the City CounciL The procedure for filling Commission vacancies is as follows: l. Notices of vacancies shall be posted for 30 days before any official City Council action is taken; 2. Vacancies shall be announced in the City's official newspaper; 3. Notices of vacancies shall be sent to all members of standing advisory commissions; 4. Applications for Coinmission membership must be obtained in the City Clerk's office and must be submitted in writing to the City Clerk; 5. The City Clerk shall forward co ies of the a lications to the Ma or and Ci P PP Y tY Council; 6. The Mayor shall identify and include the nominee's application form in the City Council agenda materials for the City Council meeting at which the nominee is presented; 7. The City Council, by majority vote, may approve an appointment at the City Council meeting at which the nominee is presented. COUNCIL PROCEDURES ESTABLISHED FOR FILLING COMMISSION VACANCIES Office of the Mayor City of Brooklyn Center A Millennium Community MEMORANDUM TO: Councilmember Kathleen Carmody Councilmember Kay Lasman Councilmember Diane Niesen Councilmember Bob Peppe FROM: Myrna Kragness, Mayar�� DATE: July 7, 2004 SUBJECT: Planning Commission Appointment As outlined in our policy for filling commission vacancies, I would request ratification from Council Members for the following nomination: Planning Commission (1 vacancy) Shawn Taylor 3955 69th Avenue North 6301 Shingle Creek Parkway Recreation and Community Center Phone TDD Number Brooklyn Center, MN 55430-2199 (763) 569-3400 City Hall TDD Number (763) 569-3300 FAX (�63) 569-3434 FAX (763) 569-3494 www. cityo fbrooklyncenter. org City of Brooklyn Center Planning Commission Geographical Distribution (Chairperson and Six Members) Current Members July 7, 2004 Neighborhoods �.�ppl�c��#� Current Members Southeast Northeast Sean Rahn 601 70th Avenue North, 114 Tim Willson 6718 Colfax Avenue North j Y y 1 'm w° 1�.� f 2� Northwest S�iawn 'T�y�o� 3955,��9th��eritte.Nor.th,�. West Central Stephen Erdmann 4919 61 st Avenue North Central Rex Newman 3107 61 st Avenue North Dianne Reem 6225 Chowen Avenue North Southwest Graydon Boeck 5601 Indiana Avenue North One vacancy. i CITY OF BROOKLYN CENTER COMMISSION BYLAWS Adopted: June 22, 1987 Amended: November 9, 1992 Updated: July 12, 1999 Pursuant to the following resolutions relating to and providing for the establishment, appointment, organization, and responsibilities of the Brooklyn Center Financial, Housing, Human Rights and Resources, Park and Recreation, and Planning Commissions, the City Cauncil does hereby adopt these bylaws and rules for the conduct of their affairs. COMI��IIS SION RESOLUTIONS Financial 91-115, 92-99, 92-168, 95-78, 98-13, 99-110 Housing ?3-140, 75-97, 77-22, 87-131, 92-136, 95-79, 98-13 Hmnan Rights and Resources 68-44, 69-35, 71-211, 74-68, 87-132, 92-135, 93-76, 95-80, 98-13 Park and Recreation 73-25, 77-52, 87-133, 92-137, 95-81, 98-13 Planning 87-87, 87-134, 92-134, 95-82, Ordinance 35- 201 Article L Officers Section L Personnel The officers shall consist of a Chairperson and Vice-Chairperson. Section 2. Duties The Chairperson shall preside at all meetings and shall appoint Ad Hoc Committee members and Ad Hoc Committee Chairpersons. The Vice-Chairperson shall be appointed annually by the Chairperson and shall perform such duties as may be assigned by the Chairperson, and shall assume the Chair in the absence of the Chairperson. Article IL Meetings The Commission shall hold regular meetings. Special meetings may be called at any time by the Chairperson upon sufficient notification to a11 Commission members. Article III. Quorum A quorum shall consist of a majority of the members of the Commissian. Article IV. Attendance Three consecutive unexcused absences from duly called Commission meetings or unexcused absences from a maj ority of duly called Commission meetings within one calendar year shall constitute automatic resignation from office. Article V. Minutes Minutes of each regular meeting, in writing, shall be provided to each Commission member prior to the commencement of the succeeding regular meeting. Article VL Ad Hoc Committees Section 1. Structure The Commission may create Ad Hoc Committees to investigate those areas wl�ere problems relative to the Commission's purpose are recognized. Section 2. Membershib Each Ad Hoc Committee shall have a Chairperson, who shall provide regular interim reports on the progress of the Ad Hoc Committee. A final report to the Commission must be submitted. Article VIL General Provisions No member of the Commission or its Committees shall be authorized to speak on behalf of the Commission publicly, unless the Commission has first considered and approved such statements. Article VIIL Parliamentary Authority Robert's Rules of Order Newly Revised shall be the governing authority for all meetings of the Commission and for its committees. Article IX. Amendments These bylaws may be amended by a four-fifths vote of the City CounciL RESOLUTION NO. 87-87 RESOLUTION NO. 87-134 RESOLUTION NO. 92-134 RESOLUTION NO. 95-82 RESOLUTION DEFINING DUTIES AND RESPONSIBILITIES OF THE BROOKLYN CENTER PLANNING COMMISSION THEREFOR WHEREAS, the City of Brooklyn Center is promoting planning of development and redevelopment in the City; and WHEREAS, provisions for an advisory Planning Commission were established in Chapter 35 of the City Ordinances; and WHEREAS, as part of a movement towards standardization of the City Council advisory commission structure, Chapter 35 of the City Ordinances relating to the Planning Commission was amended on 1Vlarch 23, 1987; and WHEREAS, the City Charter provides for the establishment of commissions to advise the City Council with respect to policy formulation for municipal functions and activities; and WHEREAS, it is desirable for the City of Brooklyn Center to continue the function served by the Planning Commission. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center that there is hereby established within the City of Brooklyn Center an advisory Planning Commission with duties and responsibilities as follows: Subdivision l. TITLE: This organization shall be known as the Brooklyn Center Planning Commission. Subdivision 2. SCOPE: The scope of activity of this Commission shall consist of advising the City Council and other Brooklyn Center advisory commissions regarding matters relevant to planning functions. Subdivision 3. PURPOSE: The general purpose of the Commission is to act in an advisory capacity to the City Council on issues related to comprehensive planning of land use and development, platting, rezoning and special use applications, plan approval, variances and appeals. Subdivision 4. DUTIES AND RESPONSIBILITIES: In fulfillment of its purpose, the duties and responsibilities of the Commission are as follows: l. Plannin� a. Comprehensive Planning. -1- The Commission shall, from time to time, upon its own motion or upon direction of the City Council, review the Comprehensive Plan and by a majority vote of all members of the Commission recommend appropriate amendments to the City Council. Before recommending an such amendments to the Cit Council Y Y the Commission shall hold at least one public hearing to consider the proposed amendment. The staff liaison to the Commission shall publish notice of the time, place and purpose of the hearing once in the official newspaper of the municipality at least ten (10) days before the date of the hearing. Furthermore, the staff liaison shall transmit copies of the proposed amendment to the City Council prior to the publication of the notice of hearing. Following the review and recommendation by the Commission, the City Council shall consider the proposed aznendment and may, by resolution of two-thirds of its members, amend the Comprehensive Plan. b. Coordination with Other Agencies. In the performance of its planning activities, the Commission shall consult with and coordinate the planning activities of other departments and agencies of the municipality to insure conformity with and to assist in a developrnent of the comprehensive municipal plan. Furthermore, the Commission shall take due cognizance of the planning activities of adjacent units of government and other affected public agencies. c. Land Uses. The Commission shall, from time to time, review and report to the City Council on balance among Brooklyn Center land uses, and shall review existing land uses and kindred regulations, recommending any changes to the City Council (as outlined in the Braoklyn Center Year 2000 Committee Report). 2. Redevelonment The Commission shall, from time to time, upon its own motion or upon direction from the City Council, review and discuss a redevelopment policy for the City of Brooklyn Center, and make recommendations to the City Council with regard to redevelopment in the City. 3. Plattine Before dividing any tract of land into two or more lots or parcels, an owner or subdivider shall, unless a variance is authorized, proceed under the provisions of Chapter 15 of the Ordinances of the City of Brooklyn Center. -2- 4. Rezonin� and Snecial Use Anplications The Commission shall hear and review all applications for amendments to the Zoning Ordinance, hereinafter referred to as "Rezoning Applications", and applications for special use permits. The staff liaison to the Planning Commission shall maintain permanent files and records for each application to the Commission. The record for each application shall consist of a written application on a forin provided by the municipality, the minutes of the Commission upon the hearing of the application, and the written recommendation of the Planning Commission. (See Section 35-210, Rezoning, and Section 35-220, Special Use Permits of the Ordinances of the City of Brooklyn Center.) 5. Plan Approval Every person, before commencing the construction or maj or alteration of a structure (except one and two family dwellings and buildings accessory thereto), shall submit information as set out in Section 35-230 of the Ordinances of the City of Brooklyn Center. 6. Variances (Adiustmentsl and Anneals The Planning Commission shall serve as the Board of Adjustment and Appeals of the municipality. When acting as the Board of Adjustments and Appeals, the Planning Commission's recommendations shall be advisory to the City CounciL The rules of parliamentary procedure governing the conduct of Planning Commission meetings shall also govern the conduct of the meetings of the Planning Commission when acting as the Board of Adjustments and Appeals. The staff liaison to the Planning Commission shall act as the staff liaison to the Board of Adjustments and Appeals and shall maintain permanent files and records for each appeal, application or petition to the Board of Adjustments and Appeals. The staff liaison shall maintain a separate file for each application, petition, or appeal to the Board of Adjustments and Appeals and shall place in said file, the record pertaining to each proceeding which shall consist of the written application, petition, or appeal; a copy of the minutes of the hearing of the Board; and a copy of the written recommendation of the Board. The Planning Commission, acting as the Board of Adjustments, and Appeals, shall hear applications far variances (adjustments) in accordance with Section 35-240 and appeals in accordance with Section 35-250 of the Ordinances of the City of Brooklyn Center. Subdivision 5. COMPOSITION: The Commission shall be composed of a Chairperson and six (6) members, all of whom shall be appointed and serve as set forth in Subdivision 6. -3- Subdivision 6. MEMBERS METHOD OF SELECTION-TERM OF OFFICE- REMOVAL: Chairnerson: The Chairperson shall be elected by majority vote of the Planning Commission membership. The election shall be conducted at the Planning Commission's first regular meeting of the calendar year, or, in the case of a vacancy, within two regularly scheduled Planning Commission meetings from the time a vacancy of the chair occurs. The Chairperson may be removed by majority vote of the Planning Commission membership. The Chairperson shall assure fulfillment of the following responsibilities in addition to those otherwise described herein: 1. Preside over meetings of the Commission; 2. Appear or appoint a representative to appear, as necessary, before City advisory commissions and the City Council to present the viewpoint of the Commission in matters relevant to planning and zoning; 3. Review all official minutes of the City Council and other advisory commissions for the purpose of informing the Planning Commission of inatters relevant to planning and zoning; 4. Provide liaison with other governmental and voluntary organizations on matters relevant to planning and zoning. Vice Chairnerson: A Vice Chairperson shall be appointed aru�ually by the Chairperson from the members of the Commission. The Vice Chairperson sha11 perform such duties as may be assigned hy the Chairperson and shall assume the responsibilities of the chair in the absence of the Chairperson. Members' Term of Office: Members of the Commission shall be appointed by the Mayor with majority consent of the Council. The terms of office shall be staggered two-year terms, except that any person appointed to fill a vacancy occurring prior to the expiration of the term for which his or her predecessor was appointed shall be appointed only for the remainder of such term. Upon expiration of his or her term of office, a member shall continue to serve until his or her successor is appointed and shall have qualified. Terms of office for members of the Commission shall expire on December 31 of respective calendar years. In the event an appointed Commissioner suffers from an extended illness, disability, or other activity preventing proper fulfillment of duties, responsibilities, rules and regulations of the Commission, the Commissioner may be temporarily replaced during the temporary leave by an interim Commissioner appointed by the Mayor with majarity consent of the City CounciL -4- Oualifications for Membershin: Members of the Commission shall be residents of the City of Brooklyn Center while serving on the Commission, shall have been residents of said City for at least one year prior to their appointment, and shall represent a broad range of interest in the planning function. Re�resentation Reauirements: Due regard shall be given by the Mayor and City Council in appointing Commission members which will take into consideration geographical distribution within the City, as described in Subdivision 10, and the representative nature of the Commission in terms of gender, religion, ethnic, racial, age, handicapped, employee, and employer groups. Conflict of Interest: No Commissioner shall take part in the consideration of any matter wherein he or she is the applicant, petitioner, or appellant, nor in the consideration of any application, petition, or appeal wherein his or her interest might reasonably be expected to affect his or her impartiality. Resi�nations-Removal from Office-Vacancies: Commissioners may resign voluntarily or may be removed from office by the Mayor with consent by majarity vote of the City Council. Three consecutive unexcused absences from the duly called Commission meetings or unexcused absences from a majority of duly called Commission meetings within one calendar year shall constitute automatic resignation from office. The City staff liaison shall inform the Mayor and City Council of such automatic resignations. Vacancies in the Commission shall be filled by Mayoral appointment with majority consent of the City Council. The procedure for filling Commission vacancies is as follows: 1. Notices of vacancies shall be posted for 30 days before any official City Council action is taken; 2. Vacancies shall be announced in the City's official newspaper; 3. Notices of vacancies shall be sent to all members of standing advisory commissions; 4. Applications for Commission membership must be obtained in the City Clerk's office and must be submitted in writing to the City Clerk; 5. The City Clerk shall forward copies of the applications to the Mayor and City Council; 6. The Mayor shall identify and include the nominee's application form in the City Council agenda materials for the City Council meeting at which the nominee is presented; 7. The City Council, by majority vote, may approve an appointment at the City Council meeting at which the nominee is presented. -5- Comnensation: Commissioners shall serve without compensation. Subdivision 7. RULES AND PROCEDURES: The Commission shall adopt such rules and procedures not inconsistent with these provisions as may be necessary for the proper execution and conduct of business. Subdivision 8. MEETINGS: Regular meetings sha11 be held with date and time to be determined by the Commission. Special meetings may be called by the Chairperson. Subdivision 9. STAFF: The City Manager shall assign one member of the administrative staff to serve as staff to the Commission. The staff inember assigned shall perform such clerical and research duties on behalf of the commission as may be assigned by the Chairperson or the City Manager. Subdivision 10. NEIGHBORHOODS: Neiehborhoods Described: Southeast Neighborhood: The Southeast neighborhood shall be bordered on the south by the south city limits; on the east by the Mississippi River; on the north by FAI-94; and on the west by Shingle Creek. Northeast Neighborhood: The Northeast neighborhood shall be bordered on the south by FAI-94; on the east by the Mississippi River; on the north by the north city limits; and on the west by Shingle Creek. Northwest Neighborhood: The Northwest neighbarhood shall be bordered on the south by FAI-94; on the east by Shingle Creek; on the north by the north city limits; and on the west by the west city limits. West Central Neighborhood: The West Central neighbarhood shall be bordered on the south by County Road 10; on the east by Brooklyn Boulevard; on the north by FAI-94; and on the west by the west city limits. Central Neighborhood: The Central neighborhood shall be bordered on the south by County Road 10; on the east by Shingle Creek; on the north by FAI-94; and on the west by Brooklyn Boulevard. Southwest Neighborhood: The Southwest neighborhood shall be bordered on the south by the south city limits; on the east by Shingle Creek; on the north by County Road 10; and on the west by the west city limits. -6- 2 d�, j3 €i t€ f�:i ES 1s �:€E 2: ��3` P� F ^w S `t �a� I �UJ�.� �2,1.�i��.t51s� W �t�F gr-s�� C i �w...i+�, i 3 1 ..],-.a. S�T 3 k. 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''�ry '3` Y �Z ��95 3 �C�rw. I N h: wC ��N Com m iss ion D istri cts City of Brooklyn Center A 1Vlillennium Community Volunteer Opportunity Brooklyn Center Planning Commission The Brooklyn Center Planning Commission is seeking one member to fiil the vacancy created by the resignation of one of its members. The remaining term expires December 31, 2Q05, at which time the Commissioner is eligible for rea ointment to another two- ear term. The eneral u ose of the PP Y g P Commission is to act in an advisory capacity to the City Council on issues related to planning, zoning, sign, and subdivision matters. The Planning Commission meets on the 2nd and 4th Thursday of each month at 7:30 p.m. in the City Hall Council Chambers. Interested persons can obtain an application packet at Brooklyn Center City Hall, 6301 Shingle Creek Parkway, Brooklyn Center, by visiting the City's web site at www.citvofbrooklvncenter.or�, or by calling City Clerk Sharon Knutson at 763-569-3306. Final appointment will be made by the Mayor and City Council. Application deadline is June 8, 2004. (Posted at Brooklyn Center City Hall, Community Center, and on web site May 7, 2004J �Published in the Brooklvn Center Sun-Post May 12, 2004J 6301 Shingle Creek Parkway Recreation and Community Center Phone TDD Number Brooklyn Center, MN 55430-2199 (763) 569-3400 City Hall TDD Number (763) 569-3300 FAX (763) 569-3434 FAX (763) 569-3494 www. cityofbrooklyncenter.org City of Brooklyn Center Planning Commission Page 1 of 1 $Y� 3 J y y i a� C! i 4 �+.°x+ Y? f,� �'1 S �o b i� s�' ya�� j s c� h Home Planning Commission Mayor/Council/Commissions/Charter The Brooklyn Center Planning Commission is seeking one member to fill the vacancy Council Agenda Minutes created by the resignation of one of its members. The position is voluntary. The remaining Council Meeting Schedule term ex ires December 31, 2005, at which time the Commissioner is eli ible for City Charter P 9� Council Goals reappointment to another two-year term. The general purpose of the Commission is to act adv�sory comm�ssions in an advisory capacity to the City Council on issues refated to planning, zoning, sign, and City Code of ordinances subdivision matters. The Planning Commission meets on the 2nd and 4th Thursday of each month at 7:30 p.m. in the City Hall Council Chambers. If you would like to help your New Residents City government with planning issues, this is the commission for you. CommunitylNews/Events Interested persons can obtain an application packet as follows: City ServiceslDepartments stop by Srooklyn Center City Haif, 6301 Shingle Creek Parkway, Brooklyn Center; e-mail the Citv Clerk; Parks Recreation call the City Clerk at 763-569-3306; or visit the Advisorv Commissions web site Employment Earle Brown Heritage Center The Mayor and City Council will make final appointment. Application deadline is June 8, 2004. Cultural Diversity Click here to find out more information about the Plannino Cammission and its duties and �rnment Links re5ponsibilities. Disclaimer/Copyright Search G� Full Site This Section Search Tips This is the official site of the City of Brooklyn Center, Minnesota Home Mavor/Council/Commissions/Charter Citv Code of Ordinances New Residents CommunitvlNews/Events Citv Services/Deoartments Parks Recreation Emplovment Earle Brown Heritaoe Center Cultural Diversitv Govemment Links f Disclaimer/Coovriaht �aac�re<;: �u "�C v�� http://www.cityofbrooklyncenter. org/index.asp?Type=B_EV&SEC={ 53 899F51-ACA 1-4E3 C-81 A3-FF3 B... CS/7/2004� Sharon Knutson Cable Announcement Pa�e __a_. ,y �ti.e From: Sharon Knutson I To: Tara Jude Date: 5/7/04 3:35PM Subject: Cable Announcement Can you please add the following announcement to the cable notices. Thank you. it can come off on June 9th. VOLUNTEER OPPORTUNITY PLANNING COMMISSION MEMBER FOR INFORMATIOfV APPLfCAT109V CALL SHARON KNUTSON AT CITY HALL 763-569-3306. DEADLINE TO APPLY IS JUNE 8, 2004. FINAL APPT. BY MAYOR COUNCIL n �Sharon Knutson Plannin� Commission Vacancy Page 1 From: Sharon Knutson To: sschwartz@sunpost.com Date: 5/7/04 3:43PM Subject: Planning Commission Vacancy Sarah: Can you please announce the following in the next Brooklyn Center Sun-Post. Thank you. Date: May 7, 2004 Contact: Sharon Knutson, 763-569-3306 Brooklyn Center Residents Encouraged to Apply for Planning Commission The City of Brookiyn Center welcomes residents to apply for the Brooklyn Center Planning Commission. The general purpose of the Commission is to act in an advisory capacity to the City Couneil on issues related to planning, zoning, sign, and subdivision matters. The Planning Commission meets on the 2nd and 4th Thursday of each month at 7:30 p.m. in the City Hall Council Chambers. Interested persons can obtain an application packet at Brooklyn Center City Hall, 6301 Shingle Creek Parkway, Brooklyn Center, or visit the City's web site www.citvofbrooklvncenter.ora,, or call City Clerk Sharon Knutson at 763-569-3306. Final appointment wifl be made by the Mayor and City Council. Application deadline is June 8, 2004. -30- Sharon Knutson City Clerk City of Brooklyn Center (763) 569-3306 (763) 569-3494 fax skn utson @ci. brooklyn-center. m n. us Office of the City Clerk City of Brooklyn Center A Millennium Community Sharon Knutson Ciry Clerk May 7, 2004 Dear Advisory Commission Applicant: The Brooklyn Center Planning Commission has one vacancy (see enclosed notice). Since you have previously expressed interest and completed an application for appointment to an advisory commission, this letter is to inquire if you continue to have an interest in serving on one of Brooklyn Center's advisory commissions. Please call me at 763-569-3306 if you are interested in applying for the Planning Commission or would like more information. You can also visit the City's web site at www.citvofbrooklvncenter.ore to find out detailed information about the duties and responsibilities of the Planning Commission. The Mayor and City Council plan to appoint a commissioner at a Council meeting in June 2004. Thank you for your continued interest in serving on an advisory co�runission. Sincerely, Sharon Knutson, CMC City Clerk Enclosure 6301 Shingle Creek P¢rkway Recreation and Community Center Phone TDD Number Brooklyn Center, MN 55430-2199 (763) 569-3400 City Hall TDD Number (763) 569-3300 FAX (763) 569-3434 FAX (763) 569-3494 www. cityofbrooklyncenter.org Kathleen Ganter Dan Remiarz Phillip Gray 5936 Xerxes Ave N 6201 June Ave N 6919 Regent Ave N �klyn Center MN 55430 Brooklyn Center MN 55429 Brooklyn Center MN 55429 Jerome Orris Tracy Morton 5600 Aldrich Ave N 6419 Kyle Ave N Brooklyn Center MN 55429 Brooklyn Center MN 55429 �K Sharon Knutson Stephen Erdmann Page 1� From: Sharon Knutson To: Rebecca Crass; Ron Warren Date: 5/7/04 10:49AM Subject: Stephen Erdmann Mayor Kragness left a voice mail messa e that Ste hen Erdmann contacted her to resi n from the 9 p 9 Plannin Commission effective M 9 ay 1. He is movmg out of Brooklyn Center. I II post for the vacancy. t AGENDA CITY COUNCIL WORK SESSION July 12, 2004 Immediately Following Regular City Council Meeting at 7:00 P.M City Council Chambers 1. Proposed Hotel development adjacent to Earle Brown Heritage Center 2. Proposed letter of intent on Brookdale Ford relocation 3. Report on other community survey regarding gay, lesbian, bi-sexual, transgender family memberships 4. Miscellaneous 5. Adj ourn City of Brooklyn Center A Millennium Community MEMORANDUM TO: Mayor Kragness, Councilmembers Carmody, Lasman, Niesen, and Peppe FROM: Michael J. McCauley City Manager DATE: July 8, 2004 SUBJECT: Work Session Agenda Items Agenda Item 1. The developer will make a presentation to the City Council on their proposed hotel development adjacent to the Earle Brown Heritage Center. Attached are the proposed Development Agreement and Parking and Pedestrian Link Easement Agreement. The developer is proposing to substitute a Holiday Inn Select for a Radisson. The Developer would construct 200 rooms (10% of which would be suites), a 150 seat full service restaurant, and a 25,000 square foot indoor water park. Construction would start no later than May 1, 2005, with completion no later than December 31, 2006. The agreement provides that the EDA would pay up to $1 Million for the cost of constructing a link between the hotel and the EBHC. The Developer would pay $2,165,000 for the property 20 years after the date of closing or sooner if certain events happened such as sale of the property, default, or refinancing in an amount greater than the original principal permanent loan. The Developer would receive the tax increment generated only by the hotel property up to a principal amount of $2.6 Million or the eligible costs, whichever is less. The note would run through February 1 of 201 l, providing increment from 2007 through 2010 tax years. Agenda Item 2. Brookdale Ford is interested in proceeding with a relocation on Freeway Boulevard. A proposed letter of intenf in included. The letter outlines a basis to negotiate a development agreement. The letter of intent would contemplate the acquisition of the current Brookdale Ford property and the waiver of any relocation or other payments by Brookdale Ford as the tenant. Brookdale Ford would receive $1.5 million in payment in lieu of relocation etc. That amount would be reduced should Brookdale Ford's cost of land acquisition on Freeway Blvd. be less than $4.55 Million. Broodale Fard could receive more than $1.5 Million if the acquisition of the cunent Brookdale Ford site was less than $5 Million. The letter of intent would set the direction for negotiating a formal, comprehensive agreement. If a development agreement was reached, the agreement would commit to the acquisition of the Brookdale Ford property, payment of a moving 6301 Shingle Creek Parkway Recreation and Community Center Phone TDD Number Brooklyn Center, MN 55430-2199 (763) 569-3400 City Hall TDD Number (763) 569-3300 FAX (763) 569-3434 FAX (763) 569-3494 ww w. cityo fbroohlyncenter. org i allowance in lieu of relocation, and a commitment to exercise eminent domain to assist (at Brookdale Ford's expense) in site assemblage if Brookdale Ford was not able to acquire the property on its own. Agenda Item 3. City Clerk Sharon Knutson surveyed other cities and the League of Minnesota Cities and did not find any other cities offering family or special membership categories to gay, bisexual, transgender, or lesbians. The item is on the work agenda for Council direction if any further action ar inquiry is desired. 1 3 i S DEVELOPMENT AGREEMENT BY AND BETWEEN ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER AND BROOKI.YN HOTEL PARTNERS, LLC 2004 1278398v10 a t TABLE OF CONTENTS 1 Page ARTICLE I DEFIlVITIONS 3 Section 1.1 Definitions 3 ARTICLE II REPRESENTATIONS AND WARR.ANTIES 7 Section 2.1 Representations and Warranties of the Authority 7 Section 2.2 Representations and Warranties by the Developer 8 ARTICLE III CONVEYANCE OF DEVELOPMENT PROPERTY ........................................10 Section 3.1 Purchase and Sale of Development Property .....................................10 Section 3.2 Conveyance of Development Property 10 Section 3.3 "As Is" Conveyance 10 Section 3.4 Deferred Purchase Price 10 Section 3.5 Title and Survey 10 Section 3.6 Envirorunental Matters 11 Section 3.7 Developer's Right to Inspect 11 Section 3.8 Contingencies to Closing on Development Property 11 Section 3.9 Closing on the Development Property 12 Section Costs 13 Section 3.11 Acknowledgements by Developer .....................................................14 ARTICLE IV CONSTRUCTION OF MINIMUM IMPROVEMENTS ....................................15 Section 4.1 Preliminary Plans 15 Section 4.2 Construction of Minimum Improvements 15 Section 4.3 Construction Plans 15 Section 4.4 Commencement and Completion of Construction .............................16 Section 4.5 Compliance with Environmental Requirements 16 Section 4.6 Hotel Center Operation 16 Section 4.7 Additional Responsibilities of the Developer 16 Section 4.8 Certificate of Release of Forfeiture 17 Section Completion 17 Section 4.10 Certain Approvals 17 Section 4.11 Business Subsidy Agreement .............................................................18 Section 4.12 Construction of Water Park 20 Section 4.13 Construction of the Connection 20 ARTICLE V TAX INCREMENT FINANCING; NO PUBLIC IMPROVEMENTS 21 Section 5.1 Preconditions to Issuance of Tax Increment Note 21 Section 5.2 Tax Increment Revenue Note 21 S ection 5.3 Use of Tax Increments 22 Section 5.4 No Public Improvements 22 ARTICLE VI CERTAIN FINANCING PROVISIONS 23 Section 6.1 Encumbrance of the Development Property 23 Section 6.2 Copy of Notice of Default to Mortgagee 23 Section 6.3 Mortgagee's Option to Cure Events of Default 23 Section 6.4 Defaults Under Mortgage 23 1278398v10 _i_ i i TABLE OF CONTENTS (continued) Page Section 6.5 Subordination of Agreement 23 ARTICLE VII REAL PROPERTY TAXES AND ASSESSMENTS 24 Section 7.1 Real Property Taxes and Assessments 24 ARTICLE VIII INSUR.ANCE AND CONDEMNATION 25 Section Insurance ............................................................................................25 Section 8.2 Condemnation 26 ARTICLE IX DEVELOPER COVENANTS 27 Section 9.1 Maintenance and Operation of the Development 27 Section 9.2 Reciprocal Access and Parking Agreement 27 ARTICLE X TRANSFER LIMITATIONS AND INDEMNIFICATION 28 Section 101 Representation as to Development 28 S ection 10.2 Limitations on Transfer 28 Section 10.3 Indemnification 29 Section Limitation ...........................................................................................29 ARTICLE XI EVENTS OF DEFAULT AND REMEDIES 30 Section 11.1 Developer Events of Default 30 Section 11.2 Authority Events of Default 30 Section 11.3 Authority Remedies on Default 30 Section 11.4 Revesting Title in the Authority 31 Section 11.5 Developer Remedies on Default 31 Section 11.6 No Remedy Exclusive 31 Section 11.7 No Additional Waiver Implied by One Waiver 31 Section 11.8 Reimbursement of Attorneys' Fees 31 ARTICLE XII ADDITIONAL PROVISIONS 33 Section 12.1 Conflicts of Interest 33 Section 12.2 Real Estate Agents 33 Section 12.3 Titles of Articles and Sections 33 Section 12.4 Notices and Demands 33 Section Counterparts .......................................................................................33 Section Law Governing 33 Section 12.7 Consents and Approvals 34 Section 12.8 Representatives 34 Section 12.9 Superseding Effect 34 Section 12.10 Relationship of Parties 34 Section12.11 Mediation 34 Section Venue 34 Section 12.13 Provisions Surviving Rescission or Expiration 34 Section 12.14 Time of Essence 34 1278398v 10 -ll- 7 Z TABLE OF CONTENTS y' 4= (continued) Page EXHIBIT A LEGAL DESCRII'TION AND PID NUMBER OF DEVELOPMENT PROPERTY A-1 EXHIBIT B SOURCES AND USES B-1 EXHIBIT C CERTIFICATE OF RELEASE OF FORFEITURE C-1 EXHIBIT D QUIT CLAIM DEED ............................................................................................D-1 EXHIBIT E PERMITTED ENCUIVIBRANCES E-1 EXHIBITF MORTGAGE ..........................................................................................................F-1 EXHIBIT G LAND SALE PROMISSORY NOTE FOR BROOKLYN HOTEL PARTNERS LLC G-1 E�-IIBIT H SITE PLAN ...........................................................................................................H-1 EXHIBIT I BUSINESS SUBSIDY REPORT .............................................................................I-1 EXHIBIT J GONCEPT RENDERING OF WATER PARK J-1 EXHIBIT K TIMELINE ............................................................................................................K-1 EXHIBIT L RECIPROCAL ACCESS AND PARKING AGREEMENT L-1 EXHIBIT M INTENTIONALLY OMITTED M-1 EXHIBIT N FORM OF TAX INCREMENT NOTE N-1 EXHIBIT O DESCRIPTION OF ELIGIBLE COSTS ..............................................................0-1 1278398v10 -111- I� l I �j �y DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT is made and entered into this day of 2004, by and between the ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER, a public body corporate and politic organized and existing under the laws of the State of Minnesota (the "Authority") and BROOKLYN HOTEL PARTNERS, LLC, a Minnesota limited iiability company (the "Developer"). RECITALS WHEREAS, on December 19, 1994, the Authority and the City of Brooklyn Center (the "City") adopted the Modified Redevelopment Plan (the "Redevelopment Plan") for Housing Development and Redevelopment Project No. 1(the "Redevelopment Project Area") which set forth development objectives for the Redevelopment Project Area. WHEREAS, pursuant to the provisions of Minnesota Statutes, Section 469.174 through 469.1799, as amended (hereinafter the "Tax Increment Act"), the Authority has created Tax Increment Financing District No. 02 as a redevelopment district (the "Tax Increment District"), and has adopted a tax increment financing plan therefore (the "Tax Increment Plan") which provides for the use of tax increment financing in connection with development within the Redevelopment Project; and WHEREAS, in order to achieve the objectives of the Redevelopment Plan, the Authority has acquired certain real property located in the Project Area more particularly described on Exhibit A attached hereto (which property as so described is hereinafter referred to as the "Development Property"), and has agreed to convey the Development Property to the Developer pursuant to the terms of this Agreement. WHEREAS, the Developer has agreed to construct a full service hotel containing at least 200 rooms on the Development Property as more particularly described in Section 4.1 hereof, a water park as more particularly described in Section 4.11 and a pedestrian connection as mare particularly described in Section 4.12 (collectively, the "Minimum Improvements"). WHEREAS, in order to achieve the objectives of the Redevelopment Plan, the Authority has determined to assist the Developer with certain of the public costs of the Minimum Improvements as more particularly set forth in this Agreement; and WHEREAS, as a condition to the Authority entering into the Dev,elopment Agreement and conveying the Development Property to the Developer, the Authority has required that the Developer enter into this Agreement to establish theDeveloper's commitment to the Authority to construct the Minimum Improvements, to commit to operate or cause to be operated the Minimum Improvements as a hotel for an extended period of time, all as more fully set forth hereinafter; and WHEREAS, the Authority believes that the Development, as more fully set forth in this Agreement, is in the best interests of the residents of the City and will foster the redevelopment of blighted property and an increase in the tax base, increase the availability of hotel and restaurant facilities to residents of the City, and will otherwise benefit the health, safety, marals 1278398v10 I 1 x i Ly and welfare of the residents of the City, in accordance with the public purpose and provisions of the applicable State and local laws and requirements under the Redevelopment Plan. NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the others as follows: 1278398v10 2, il I ARTICLE I DEFINITIONS Section 1.1 Definitions. All capitalized terms used and not otherwise defined herein shall have the following meanings unless a different meaning clearly appears from the context: "Act" means Minnesota Statutes, Sections 469.001 to 469.047 and 469.090 to 469.1082, both inclusive, as amended. "Agreement" means this Development Agreement, as the same may be from time to time modified, amended or supplemented. "Authority" means the Economic Development Authority of Brooklyn Center. "Aicthority Documents" means the documents to be executed and/or delivered by the Authority at the Closing pursuant to Section 3.9 of this Agreement. "Authority Mortgage" means the mortgage on the Development Property in substantially the form attached hereto as Exhibit F granted by the Developer to the Authority to secure payment of the Promissory Note. "Authority Representative" means the Executive Director of the Authority or his designee. "Authoriry Resolution" means Resolution of the Authority approving designation of the Developer as developer of the Development Property. "Board" means the Board of Commissioners of the Authority. "Certificate of Release of Forfeiture" means the certificate in substantially the form attached hereto as Exhibit C signed by the Authority Representative certifying that the conditions in Section 4.5 hereof have been satisfied. "City" means the City of Brooklyn Center, Minnesota. "Closing" means the closing on the conveyance of the Development Parcel. "Closing Date" means the date on which the Development Property is conveyed by the Authority to the Developer, which date shall be such date as the parties mutually agree, but which date shall in no event be later than April 1, 2005. "Completion Date" means December 31, 2006. "Construction Plans" means the plans, specifications, drawings and related documents for the construction of the Minimum Improvements which shall be as detailed as the plans, 1278398v10 3 I i i I y y i specifications, drawings and related documents which are submitted to the building official of the City. "Connection" means the physical connection between the hotel to be constructed on the Development Property as part of the Minimum Improvements and the Earle Brown Heritage Center, located adjacent to the Development Property. "Construction Lender" means the lender or lenders on the Construction Mortgage Loan. "Construction Mortgage Loan means the construction mortgage 1oan or loans to be obtained by the Developer to provide construction and permanent financing for the construction of the Minimum Improvements. "County" means the County of Hennepin, Minnesota. "Deed" means the quit claim deed executed by the Authority conveying to the Developer the Development Property to the Developer; in the form attached hereto as Exhibit D. "Developer" means Brooklyn Hotel Partners, LLC, a limited liability company, its successors or permitted assigns. "Developer's �ocuments" means the documents to be executed and/or delivered by the Developer at the Closing pursuant to Section 3,9 of this Agreement. "Developer Event of Default" means the occurrence of an Event of Default set forth in Section 11.1 hereof. "Development" means the Development Property and the Minimum Improvements to be constructed thereon as provided in this Agreement. "Development Property" means the real property legally described on Exhibit A attached hereto. "EZigible Costs" means the costs described on Exhibit O attached hereto. "Final Payment Date" means the earlier of (a) the date all principal and accrued interest is paid on the Note, or (b) February l, 2011. "Minimum Improvements" means the construction of a full-service hotel consisting of at least 200 rooms, an indoor water park consisting of at least 25,000 square feet and the connection which are mare particularly described in Sections 4.1, 4.12 and 4.13 hereof. "Mortgage" means any mortgage loan to the Developer that is secured, in whole or in I part, with the Minimum Improvements on the Development Property. "Net Proceeds" means any money paid by an insurer under a policy or policies of insurance required to be provided and maintained by the Developer under Section 8.1 of this Agreement. 1278398v10 4 a x "Note Payment Date" means February 1 and August 1 of each year commencing August 1, 2007 and continuing through the Final Payment Date. "Permitted Encumbrances" means the permitted encumbrances described in Exhibit E attached hereto. "Preliminary Plans" means the preliminary design, specification and architectural plans for the Minimum Improvements (including, without limitation, materials specifications) to be submitted by the Developer to the Authority. "Promissory Note" means the promissory note in substantially the form attached hereto as Exhibit G executed by the Developer to evidence the obligation to pay the deferred purchase price of the Development Property. "RedevelopmentPlan"means the redevelopment plan far the Redevelopment Project Area approved b the Cit and the Autho Y Y nty. "State" means the State of Minnesota. "Suites" means a hotel room consisting of a minimum of two (2) separate and distinct rooms (at least one of which shall be a bedroom), and at least one (1) full bathroom. "Tax Incre`nent Act" means Minnesota Statutes, Section 469.174 through 469.1799, as amended. "Taac Increment District" means Tax Increment Financing District No. 02, qualified as a redevelopment district under the Tax Increment Act. "Tax Increment Financing Plan means the plan approved for the Tax Increment District. "Tax Increment Revenue Note" means the Note in substantially the form attached hereto as Exhibit N. "Tax Increments" means any tax increments derived from the Development Property which have been received and retained by the Authority in accordance with the provisions of Minnesota Statutes, Section 469.177, or otherwise pursuant to the Tax Increment Act. "Timeline" means the timeline attached hereto as Exhibit K. "Title �'ompany" means Guaranty Title Company. "Unavoidable Delays" means delays outside the control of the party claiming its occurrence, which are the direct result of (a) unusually severe or prolonged bad weather, (b) acts of God, fire or other casualty to the Development, (c) litigation commenced by third parties which, by injunction ar other similar judicial action, directly results in delays, (d) the outbreak of war, acts of terrorism or insurrection, (e) acts of any Federal, State ar local governmental unit 1278398v10 5 I 1 Y which directly result in delays, fl strikes or walkouts, (g) delays in delivery of materials for the Minimum Improvements, ar(h) soil conditions of the Development Property. 1278398v10 6 ARTICLE II REPRESENTATIONS AND WARRANTIES Section 2.1 Renresentations and Warranties of the Authoritv. The Authority makes the following representations and warranties: (a) The Authority is a public body corporate and politic and a governmental subdivision of the State, duly organized and existing under the Act and the Authority has the authority to enter into this Agreement and carry out its obligations hereunder. (b) The Authority has taken all action necessary to create the Redevelopment Project Area and to approve this Agreement and to authorize the execution and delivery of this Agreement and any other documents or instruments required to be executed and delivered by the Authority pursuant to this Agreement. (c) The execution, delivery and performance of this Agreement and any other documents or instruments required pursuant to this Agreement by the Authority does not, and consummation of the transactions contemplated therein and the fulfillment of the terms thereof will not, conflict with or constitute on the part of the Authority a breach of or default under any existing (i) indenture, mortgage, deed of trust or other agreement or instrument to which the Authority is a party or by which the Authority or any of its property is or may be bound, or (ii) legislative act, constitution or other proceeding establishing or relating to the, establishment of the Authority or its officers or its resolutions. (d) There is not pending, nor to the Authority's current actual knowledge is there threatened, any suit, action ar proceeding against the Authority before any court, arbitrator, administrative agency or other governmental authority that materially and adversely affects the validity of any of the transactions contemplated hereby, the ability of the Authority to perform its obligations hereunder, or as contemplated hereby or thereby, or the validity or enforceability of this Agreement. (e) No member of the Board of the Authorit or officer of the Authority, has Y either a direct or indirect financial interest in this Agreement, nor will any Commissioner of the Authority or officer of the Authority, benefit financially from this Agreement within the meaning of Minnesota Statutes, Section 471.87. fl The Tax Increment District is a"redevelopment district" within the meaning of Minnesota Statutes, Section 469.174, Subdivision 10 and was created, adopted and approved in accordance with the terms of the Tax Increment Act. (g) The development contemplated by this Agreement is in conformance with the obj ectives set forth in the Redevelopment Plan. (h) To finance the costs of the activities to be undertaken on the Development Property, the Authority proposes to, subject to the further provisions of this Agreement, apply ia�s39s�io 7 I Tax crement In s amon other thin s to reim e De 1 er for a f th th g burse th ve a ortion o e costs of e g P p Eligible Costs. Section 2.2 Representations and Warranties bv the Develoner. The Developer represents and warrants to the Authority that: (a) The Develo er is a limited liabilit com an or anized and in ood P Y P Y g g standing under the laws of Minnesota, is not in violation of any provisions of its articles of organization, member control agreement, or other organizational documents or the laws of said State, has power to enter into this Agreement and has duly authorized the execution, delivery and performance of this Agreement by proper action of its members. (b) The execution and delivery of this Agreement, 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 ar conditions of the Developer's arganizational documents, any restriction or any agreement ar instrument to which the Developer is now a party or by which it is bound or to which any property of the Developer 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 Developer ar its properties, including its interest in the Development, 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 Developer contrary to the terms of any instrument or agreement to which Developer is a party or by which it is bound. (c) The execution and delivery of this Agreement will not create a conflict of interest prohibited by Minnesota Statutes, Section 471.87. (d) There are no pending or threatened legal proceedings, of which the Developer has notice, contemplating the liquidation or dissolution of the Developer or threatening its existence, or seeking to restrain or enjoin the transactions contemplated by the Agreement, or questioning the authority of the Developer to execute and deliver this Agreement or the validity of this Agreement. (e) The construction of the Minimum Improvemen�s would not be undertaken by the Developer, and .in the opinion of the Developer would not be economically feasible within the reasonably foreseeable future, without the assistance and benefit to the Developer provided far in this Agreement. fl The Developer has adequate financial capability, consisting of binding commitments for equity and financing, to construct and to complete each of the activities or tasks required by this Agreement including but not limited to, the completion of construction of the 'nimum Im r vements b the m letion Date. Mi o Co P Y P (g) The total construction cost for the Minimum Improvements, including furniture, fixtures and equipment, but excluding the capital costs of the Connection, will be at least $20,000,000. 1278398v10 8 S (h) The Developer will cooperate with respect to the mutual marketing of the Earle Brown Heritage Center located adjacent to the Development Property. (i) The Developer has provided the Authority with true, correct and complete copies of the documents described in Section 3.9(c) to which the Authority is not a party. 1278398v10 9 a ARTICLE III I CONVEYANCE OF DEVELOPMENT PROPERTY Section 3.1 Purchase and Sale of Development Propertv. Subject to the terms of Section 3.4 and the terms of this Agreement generally, the Authority agrees to sell to the Developer, and Developer agrees to buy from the Authority, the Development Property. Section 3.2 Convevance of Develonment Pronertv. The Authority and the Developer agree that the Closing on the conveyance of the Development Property shall occur on the Closing Date. In the event that the Closing has not occuned within thirty (30) days of the Closing Date, then this Agreement shall automatically be terminated and neither party shall have any rights against, or obligations to, the other except the obligations of the Developer under Section 3.10 hereof, which obligations shall survive any such termination. Section 3.3 "As Is" Convevance. In recognition of the inspection rights accorded the Developer, the Developer shall take the conveyance of Development Property on an "AS IS" "WHERE IS" basis, with all faults and defects, without any representations or warranties, express or implied, except those expressly stated in Section 2.1 of this Agreement, and the Developer waives and releases any claims against the Authority, the City and their respective members, boards, agents and employees, for indemnification, contribution, reimbursement or other payments arising under federal and state law, common law or any other theory relating to environmental or any other condition of the Development Property. Section 3.4 Deferred Purchase Price. The total purchase price to be paid by Developer to the Authority for the Development Property shall be $2,165,000 (the "Purchase Price"), however the payment of such Purchase Price, shall be deferred, without interest, until the earliest of: (1) twenty (20) years after the Closing Date; (2) the date the Developer sells the Development Property; (3) the occurrence of a Developer Event of Default; {4) the date the Developer refinances the permanent loan (not the Construction Loan) on the Development Property in excess of the original principal amount of the loan; or (5) the date any general ar limited partnership interest in the Developer is transferred. The Developer shall execute the Promissory Note attached hereto as Exhibit G to memorialize its obligation to pay the Purchase Price. The Developer shall secure payment of the Promissory Note by execution and delivery of the Authority Mortgage. At Closing, the Developer shall be responsible for paying all costs and expenses (including mortgage registration tax) of recording the Authority Mortgage. Section 3.5 Title and Survev. The Authority will obtain a commitment for an owner's title insurance policy (subject to standard exceptions) issued by the Title Company naming Developer as the proposed owner-insured of the Development Property in the amount of the purchase price (the "Commitment"), together with copies of all documents refened to in the Commitment. The Developer shall make any objections to title in writing to the Authority within ten (10) days of receipt of the Commitment, or the same shall be deemed waived. The Authority and the Developer acknowledge and agree that if the Authority does not have good and marketable title to the Development Property on or before the Closing Date, the Authority shall not be obligated to make title marketable and the Developer's sole remedy shall be to 1278398v10 1 I terminate this Agreement. The Developer has obtained, or will obtain, at Developer's expense, a survey of the Development Property, prepared by a surveyor acceptable to Developer (the "Survey"). The Developer agrees to take title to the Development Property subject to the Permitted Encumbrances set forth on Exhibit E attached hereto and the same are hereby approved by the Developer and shall not be the basis of any title objection. Section 3.6 Environmental Matters, The Developer acknowledges that on August 14, 2003, the Authority provided the Developer a Phase I Report on the Development Property. It is understood that the Authority has delivered the Phase I Report as an accommodation to the Developer, and the Authority makes no representation ar warranty as to the accuracy or completeness of the information contained therein. Neither the City nor the Authority shall have any responsibility or obligation to undertake any clean up or remediation of any environmental substance or condition on or near the Development Property. Section 3.7 Develoqer's RiEht to Inspect. Developer is hereby granted the right to enter upon and inspect, analyze, and test the Development Property far all reasonable purposes, including conducting soil tests. Developer shall pay for the cost of all investigations of the Development Property which are ordered by Developer far purposes of conducting its own investigations of the Development Property. Developer hereby agrees to indemnify and hold the Authority harmless from any claims, damage, costs, and liability (including, without limitation, reasonable attorney's fees) resulting from the entering upon the Development Property or the performing of any of the analyses, tests or inspections referred to in this Section. Section 3.8 Contingencies to Closin� on Develonment Propertv. (a) Develover's Contin�encies. Developer's obligation to close on the Development Property is expressly conditioned upon each of the following contingencies being satisfied or waived on or before the Closing Date: (i) Developer shall have closed on its financing of the construction of the Minimum Improvements as described in Article VL (ii) Title to the Development Property shall have been found acceptable, or been made acceptable, in accordance with Section 3.5. (iii) Developer shall have determined that it is satisfied with the results of all matters disclosed by hazardous waste and environmental reviews of the Development Property. (iv) Developer shall have determined that it is satisfied with the results of all matters disclosed by Developer's inspection of the Development Property conducted under Section 3.7. (v) The Authority shall have performed all of the obligations required to be performed by Authority under this Agreement as of the Closing Date. (vi) The Authority shall have delivered to the Developer all of the Authority's Documents described in Section 3.9. 1278398v10 1 1 e I �r (b) Authoritv's Contin�encies. The Authority's obligation to close on the sale of the Development Property is expressly conditioned upon each of the following contingencies being satisfied ar waived in writing on ar before the Closing Date: (i) Developer shall have delivered to the Authority copies of fully executed construction loan documents in the form, and subject to conditions, acceptable to the Authority, for the construction financing for the Minimum Improvements. (ii) Developer shall have delivered evidence, acceptable to the Authority, that the Developer has obtained cash or an irrevocable letter of credit from all equity investors of the entire amount of their required capital commitment. (iii) Developer shall have delivered a copy of a fully executed franchise agreement in form, and subject to conditions, acceptable to the Authority, for the Hotel and the restaurant to be located in the Hatel both with franchisors acceptable to the Authority. (iv) Developer shall have performed all of the obligations required to be performed by Developer under this Agreement as of the Closing Date. (v) The Developer shall have delivered to the Authority all of the Developer's Documents described in Section 3.9. (vi) The Developer shall have delivered to the Authority a copy of a fully executed fixed price or guaranteed maximum price construction contract for the Minimum Improvements, in form, subject to conditions, and with a general contractor, acceptable to the Authority, with a commencement date of no later than 30 days after the Closing Date. (vii) The Developer shall have obtained the approval of the Authority to the Construction Plans as required by Section 4.3 of this Agreement. (viii) Payment and performance bonds from the contractor or subcontractors in the amount of the applicable contract price for construction by the contractor and subcontractors of all of the improvements covered by their respective contract prior to commencement of the work covered by their respective contracts. Section 3.9 Closin� on the Develoament Propertv (a) Time and Place. Subject to the terms and conditions of this Agreement, the Closing on the purchase and sale of the Development Property shall take place on the Closing Date and shall take place at the Saint Paul offices of Briggs and Morgan or such other place which is mutually acceptable to the parties. The Authority shall deliver possession of the Development Property on the Closing Date. (b) Authoritv's Documents. At the Closing, the Authority shall execute, where appropriate, and deliver all of the following Authority's Documents: 1278398v10 12 I t� (i) The Deed properly executed on behalf of the Authority conveying the Development Property to the Developer subject to the Permitted Encumbrances and any other matters not objected to under Section 3.5 hereof. (ii} Any abstracts of title in the Authority's possession to any portion of the Development Property which is abstract property. (iii) An affidavit of the Authority indicating on the Closing Date that to its actual current knowledge, without duty of inquiry ar investigation, there are no outstanding, unsatisfied judgments, tax liens or bankruptcies against or involving the Development Property; that there has been no labor ar material furnished to the Development Property for which payment has not been made or for which mechanic's liens could be filed; and that there are no other unrecorded interests in the Development Property. (c) Develoner's Documents. At the Closing, the Developer shall execute, where appropriate, and deliver all of the following Developer's Documents: (i) The Authority Mortgage properly executed on behalf of the Developer in substantially the form attached hereto as Exhibit F. (ii) The Promissory Note properly executed on behalf of the Developer in substantially the form attached hereto as Exhibit G. (iii) Proof of insurance required pursuant to this Agreement. (iv) To the extent required and obtainable as of the Closing Date, environmental clearances, subdivision approvals, permits, and any other required governmental approvals for the Minimum Improvements. (v) Funds sufficient for payment by the Developer at Closing of the recording charges or fees far all documents which are to be placed on record, the fee or charge imposed by any closing agent designated by the Title Company, and any other incidental or related closing costs. (vi) A certificate of good standing for Developer from the Secretary of State of the State. Section 3.10 Costs. The Authority and the Developer each shall pay their own attorneys' fees. The Developer shall pay all costs of construction relating to the Minimum Improvements. The Developer shall pay, among other things, the Title Company's closing fee and any other fees related to the Commitment. The Authority shall pay the state deed tax and the fees of Title Company for its title wark relating to the issuance of the Commitment. The Developer shall pay the cost of any surveys, the cost of any environmental audits or work, the premiurn for the title insurance policy, the mortgage registry tax and the cost of recording the Deed and the Authority Mortgage, the cost of Developer's inspection of the Development Property and any and all other closing costs related to the transfer of the Development Property to the Developer not specifically agreed to herein to be paid by the Authority. i2�s39s�to 13 k 1 A f Y Section 3.11 Acknowled�ements bv Develoner. The Developer acknowledges and agrees that: (a) no promises or commitments of any type or kind have been made by the Authority with respect to providing financial assistance to the Minimum Improvements, whether by loan, grant, bond issuance of otherwise, except as expressly set forth in this Agreement; (b) the Developer will need to obtain all permits and approvals for the construction and operation of the Minimum Improvements required by applicable law, including all building and environmental permits and approvals, and that no promises have been made by the Authority with respect to waiving or modifying any applicable permitting requirements; (c) no promises or commitments have been made by the Authority with respect to the assessed valuation of the Minimum Improvements or any of the facilities ancillary thereto; and (d) the Authority shall have the right to support other projects and developments regardless of whether such projects and developments compete with the Minimum Improvements. 1278398v10 1 4 ARTICLE IV CONSTRUCTION OF MINIMUM IMPROVEMENTS Section 4.1 Preliminarv Plans. The Developer will submit to the Authority the Preliminary Plans for the Minimum Improvements. The Preliminary Plans must be consistent with the Redevelopment Plan, this Agreement, and all applicable State and local laws and regulations, insofar as said consistency may be determined at said preliminary stage. The Minimum Improvements shall consist of a full service hotel containing a minimum of 200 rooms, ten (10) percent of which shall be Suites (the "Hotel"), at least one, minimum 150 seat, full service restaurant with a liquor license and a 25,000 square foot indoor water park connected to the Hotel (the "Water Park"). The hotel "flag" shall be a Radisson or another franchise acceptable to the Authority and the Developer. The exterior of the Minimum Improvements must make significant use of glazed glass and be of a color compatible with the surrounding development as acceptable to the Authority in its sole discretion. All exterior designs and materials including the colar palette must be approved by the Authority. The Minimum Improvements must be physically connected to the Earle Browne Heritage Center by an enclosed pedestrian Connection (the "Connection"), as more fully described in Section 4.13 hereto. The Connection shall be part of the Minimum Improvements. Section 4.2 Construction of Minimum Improvements. Subject to the terms and conditions of this Agreement, the Developer agrees to construct the Minimum Improvements (a Site Plan far which is attached hereto as Exhibit H) on the Development Property in conformance with the approved Construction Plans for the Minimum Improvements. No material changes shall be made to the Construction Plans far the Minimum Improvements without the Authority's priar written approval. In no event shall any of these changes (a) affect the quality of the Development as provided in the Construction Plans approved by the Authority, (b) materially affect the appearance of the exterior of the Minimum Improvements, (c) reduce the quality of the construction materials for the Minimum Improvements, or (d) delete or modify any of the required elements of the Minimum Improvements set forth in Section 4.1 hereof. Section 4.3 Construction Plans (a) The Developer shall deliver to the Authority no later than thirty (30) days prior to Closing the Construction Plans for the Minimum Improvements. The Authority shall review the Construction Plans and will deliver to the Developer before the Closing Date, a written statement approving the Construction Plans or a written statement rejecting the Construction Plans and specifying the deficiencies in the Construction Plans. The Authority shall approve the Construction Plans i£ (i) the Construction Plans conform to the terms and conditions of this Agreement; (ii) the Construction Plans are consistent with the goals and objectives of the Redevelopment Plan; and (iii) the Construction Plans do not, to the knowledge of the Authority, violate any applicable Federal, State or local laws, ordinances, rules ar regulations. If the Construction Plans are not approved by the Authority, then the Developer shall make such changes as the Authority may reasonably require. 1278398v10 1 I t I b The a roval of the Construction Plans or an ro osed amendment to P P YP P the Construction Plans, by the Authority does not constitute a representation or warranty by the Authority that the Construction Plans or the Minimum Improvements comply with any applicable building code, health or safety regulation, zaning regulation, environmental law or other law or regulation, or that the Minimum Improvements will meet the qualifications for issuance of a certificate of occupancy, or that the Minimum Improvements will meet the requirements of the Developer or any other users of the Minimum Improvements. Approval of I the Construction Plans, or any proposed amendment to the Construction Plans, by the Authority will not constitute a waiver of an Develo er Event of Default: Y P Section 4.4 Commencement and Completion of Construction. Subject to the terms and conditions of this Agreement and to Unavoidable Delays, the Developer will commence construction of the Minimum Improvements no later than May 1, 2005 and will complete construction of the Minimum Improvements no later than December 31, 2006. The Minimum Improvements will be constructed by the Developer on the Developrnent Property in conformity with the Construction Plans approved by the Authority. At all times during construction, upon the request of the Authority, the Developer wi11 provide the Authority reasonable access to the Development Property. "Reasonable access" means at least one site inspection per month during regular business hours. During construction and marketing of the Minimum Improvements, the Developer will deliver progress reports to the Authority from time to time as mutually agreed upon by the Authority and the Developer. Section 4.5 Compliance with Environmental Requirements. The Developer shall comply with all applicable local, State, and Federal environmental laws and regulations, and will obtain, and maintain compliance under, any and all necessary environmental permits, licenses, approvals or reviews. As of the date of this Agreement, the Developer has received no notice or communication from any local, State, or Federal official that the activities of the Developer, Authority under this Agreement may be or will be in violation of any environmental law or regulation. Section 4.6 Hotel Center Oueration. (a) The Developer agrees to operate and maintain the Minimum Improvements as a first class full service hotel through December 31, 2023. Without limiting the generality of the preceding sentence, the Developer agrees that the Minimum Improvements will not, between the date of this Agreement and December 31, 2023, be put to any alternative residential or other use, such as an apartment house, a dormitory, or a rooming house. Section 4.7 Additional Responsibilities of the Develo�er. (a) The Developer will construct, operate and maintain, or cause to be I operated and maintained, the Minimum Improvements in substantial accordance with the terms of this Agreement, the Redevelopment Plan, and all local, State, and Federal laws and regulations (including, but not limited to zoning, building code and public health laws and regulations), except for variances necessary to construct the Minimum Improvements I contemplated in the Construction Plans approved by the Authority. 1278398v10 16 (b) The Developer will obtain, in a timely manner, all required pertnits, licenses, and approvals, and will meet, in a timely manner, all requirements of all applicable local, State, and Federal laws and regulations which must be obtained or met before the Minimum Improvements may be lawfully constructed. (c) The Developer will not construct any building or other structures on, over, or within the boundary lines of any public utility easement unless such construction is provided for in such easement or has been approved by the utility involved. (d) The Developer, at its own expense, will replace any public facilities and public utilities damaged during the construction of the Minimum Improvements, in accordance with the current technical specifications, standards and practices of the owner thereof. (e) The Developer will prepare, submit and receive approval from the City and its Planning Commission far the subdivision plat for any portion of the Minimum Improvements, as applicable and appropriate. fl The Developer will comply with all applicable local, state and federal environmental laws and regulations, as they relate to the Minimum Improvements. (g) The Developer will meet all deadlines set forth on the Timeline. Section 4.8 Certi�cate of Release of Forfeiture. The Developer shall notify the Authority when the construction of the Minimum Improvements has commenced. The Authority shall promptly inspect the Minimum Improvements in order to determine whether construction on the same has been commenced. If the Authority determines that the Minimum Improvements have not been commenced, the Auti�ority shall deliver a written statement to the Developer indicating as such and Developer shall promptly remedy such deficiency. Promptly upon determining that construction has commenced on said Minimum Improvements, the Authority will furnish to the Developer a Certificate of Release of Farfeiture in the form attached hereto as Exhibit C certifying commencement of construction on the Minimum Improvements. The Developer shall cause the Certificate of Release of Forfeiture to be recarded in the proper office for recordation of deeds and other instruments pertaining to the Development Property. Section 4.9 Comnletion. The Developer shall notify the Authority when the construction of the Minimum Improvements have been substantially completed; and, upon receipt of the Certificate of Occupancy, will provide the Authority with a copy thereof. Section 4.10 Certain Approvals. The Developer acknowledges and agrees that any approval by the Authority given pursuant to this Agreement does not constitute the consent ar approval of the �ity or any other governmental body or entity to the Development, the subdivision of the Development Property, the plans far or the construction of the Minimum Improvements, or any other aspect thereof, including without limitation, use, zoning, building code and watershed requirements, and the Authority shall have no liability to the Developer for damages or otherwise for failure of the Developer to obtain any required consents, approvals, permits and licenses for the Development in accordance with all applicable laws and regulations. 1278398v10 1 7 Y y Section 4.11 Business Subsidv Agreement. (a) In order to satisfy the provisions of Minnesota Statutes, Section 116J.994 (the "Business Subsidy Act"), the Developer acknowledges and agrees that the amount of the "Business Subsidy" granted to the Developer under this Agreement is $2,600,000 plus the interest to be paid on the Tax Increment Note plus the annual interest at the rate of five percent (5.00%) not charged on the Promissory Note, and that the Business Subsidy is needed because the Project is not sufficiently feasible for the Developer to undertake without the Business Subsidy. (b) The pubiic purpose of the Subsidy is to further provide additional commercial facilities in the City, increase the tax base and to create jobs. (c) For its "Job Goals" under this Section 411 the Developer covenants that it will provide or cause to be provided 30 full-time equivaient permanent employee positions within two years of the Benefit Date, with these jobs having wage levels of at least $7.00 per hour, exclusive of benefits. (d) For purposes of Section 116J.994, Subdivision 3, of the Subsidy Law, the goals of the Subsidy are the construction of the Minimum Improvements and ownership thereof by the Developer for at least five years after the "Benefit Date" of the Subsidy, as defined in the Subsidy Law, which is hereby determined to be the date of the issuance of a certificate of occupancy for the Minimum Improvements. (e) For purposes of the Subsidy Law, the Subsidy shall be considered to be a forgivable loan to the Developer from the Authority. It is agreed, as required by Section 116J.994, Subdivision 6, if the Developer is in default under this Section 4.11, subject to any remedial provisions of the Subsidy Law as may be applicable, the Developer shall be obligated to repay the Subsidy plus interest from the C�osing Date on all such amounts at the implicit price deflator, as defined under Minnesota Statutes, Section 275.70, Subdivision 2. If the Developer meets some but not all of its Job Goals hereinafter defined, the Developer may request in writing, and Authority may agree in the absolute discretion of the Board of Commissioners, that the Subsidy be repaid by the Developer pro rata, e.g., if the Developer created only 15 of the 30 jobs at the Project, the Developer would repay 50% of the Subsidy paid to the Developer, plus accrued interest thereon. The Subsidy is needed in order to induce the Developer to construct and occupy the Project. The Developer covenants that it will continue to own and occupy the Project for at least five years after the Benefit Date. fl The Developer represents that it has no parent corporation. (g) The Developer represents that the following are all of the State of Minnesota and "local government agency" grants (other than the Subsidy hereunder) to the Minimum Improvements: Grantor Value Grantor Value 1278398v10 i 8 (h) The Developer represents that it is not in default on the date hereof on any subsidy agreement entered into by the Developer under the Subsidy Law. (i) The Subsidy is needed to encourage the development of a hotel to provide accommodations for those utilizing the Earle Brown Heritage Center. (j) The Developer shall complete and file with the Authority from time to time the report in the form of the attached Exhibit I. The Subsidy Law provides that if the Developer does not make such reports, when due, the Authority must mail the Developer a warning within one week of the required filing date, and if, after 14 days after the postmark date of that warning, the Developer continues to fail to report, then the Developer is required to and shall pay the Authority a penalty of $100 for each subsequent day until the report is filed, up to a maximum of $1,000. The Developer shall file these reports with the Authority, in care of the Executive Director, (1) on March 1 of each year, beginning with the March 1 immediately following the Benefit Date, and (2) within 30 days after the "Compliance Date," hereby defined to be the date which is two years after the Benefit Date. Each March 1 report shall report on the prior calendar year, and each other report shall report on the period since the last reporting period. (k) This Section 4.11 is intended to be the "subsidy agreement" required by Section 116J.994, Subdivision 3, of the Subsidy Law. In the event that any provision of this Section 4.11 is inconsistent or in conflict with any provision of the Subsidy Law, and in the event that any provision of the Subsidy Law provides additional requirements, the provisions of the Subsidy Law shall apply and govern. In addition to all reporting obligations of the Developer under this Section 4.11 and Exhibit I, the Developer agrees to provide the Authority with any additional information which may be required in order for the Authority to comply with its reporting requirements, as they may exist or be amended from time to time, under the Subsidy Law. (1) Nothing in this Section 4.11 is intended to limit or otherwise amend the other terms of this Agreement; provided, however, that to the extent that provisions in this Section 4.11 are more extensive or restrictive than any related term elsewhere in this Agreement, the provisions hereof shall govern. The above commitment of the Developer to own the Minimum Improvements for at least five years from the Benefit Date is a requirement of the Subsidy Law (subject to procedures therein allowing rel�ation or waiver of said requirement) and shall apply and govern. (m) If the Developer shall default under its agreement in this Section 4.11, the Developer shall then be required to repay the Subsidy to the Authority, plus interest at no less than the implicit price deflator, as defined under Minnesota Statutes, Section 275.70, Subdivision 2 from the date of issuance of the Tax Increment Note and Promissory Note through the date of said default and continue paying interest thereon at such rate until the Subsidy is paid in full. 1278398v10 1 9 i i t Section 4.12 Construction of Water Park. (a) The Developer agrees to construct as part of the Minimum Improvements a 25,000 square foot water park connected to the Hotel, a concept rendering of which is attached hereto as Exhibit J. (b) The Developer shall be solely responsible for the operation and maintenance of the Water Park. Section 413 Construction of the Connection. (a) The Developer agrees to construct, as part of the Minimum Improvements, the Connection between the hotel located on the Development Property and the Earle Brown Heritage Center. The Parties acknowledge that a portion of the Connection will be located on the Development Property (the "Developer Portion of the Connection") and a portion will be located on property owned by the City or the Authority (the "Authority Portion of the Connection").The exterior and interior design of the Connection shall be subject to the Authority's approval, which approval may be granted ar withheld in the Authority's sole and absolute discretion. The Connection shall be enclosed, heated, air conditioned and have magnetic security doars at the common property line between the Earle Brown Heritage Center and the Development Property. The Authority shall control the hours the security doars are open and closed. The Developer shall construct the Connection in compliance with all applicable local, state and federal rules and regulations, including, but not limited to, public bidding of the construction of the Connection. (b) The Authority shall pay all of the costs of construction of the Connection up to but not to exceed $1,000,000. Any construction costs of the Connection in excess of $1,000,000 shall be paid by the Developer. (c) The Developer shall pay and be responsible for all ongoing operation and maintenance costs associated with the Developer Portion of the Connection and the Authority shall pay and be responsible for all operation and maintenance costs of the Authority Portion of the Connection. 1278398v10 20 R 1 i ARTICLE V TAX INCREMENT FINANCING; NO PUBLIC IMPROVEMENTS Section 5.1 Preconditions to Issuance of Tax Increment Note. The Developer will undertake and pay for the Eligible Costs of the Minimum Improvements at a cost of not less than $2,600,000. In order to assist with the Eligible Costs, the Authority agrees to provide tax increment assistance to the Developer as further set forth in this Agreement. The tax increment assistance shall be paid to the Developer on a pay-as-you-go basis and the principal amount shall be equal to the lesser of {a) $2,600,000, or (b) the amount of the Eligible Costs paid by the Developer as demonstrated to the satisfaction of the Authority pursuant to clause (e) below. The tax increment assistance shall be paid on the tertns and conditions set forth in Section 5.2 below; provided however, that the Authority shall be under no obligation to provide any of the assistance contemplated in this Agreement or to issue the Tax Increment Note until satisfaction of the following conditions precedent: (a) The Developer has prepared and the Authority has approved the Construction Plans for the Minimum Improvements; (b) The Developer has obtained all necessary permits, licenses, and authorizations necessary to commence and complete the construction of the Minimum Improvements; (c) The Authority has received evidence satisfactory to it that, upon substantial completion of the Minimum Improvements, the Development Property will, upon substantial completion of the Minimum Improvements, have a market value of at least $20,000,000; (d) The Developer shall be in material compliance with all the terms and provisions of this Agreement; (e) The construction of the Minimum Improvements is completed to the satisfaction of the Authority, and the Developer has provided the Authority with invoices ar cancelled checks evidencing the payment of Eligible Costs. Section 5.2 Tax Increment Revenue Note. (1) Upon satisfaction of the conditions in Section 5.1 hereof, the Authority will reimburse the Developer for the lesser of $2,600,000 or the amount of the Eligible Costs paid and incurred by the Developer through the issuance of the Authority's Tax Increment Revenue Note in substantially the form attached to this Agreement as Exhibit N. (2) The unpaid principal amount of the Note shall bear simple, non-compounded interest from the date of issuanee of the Note at the rate of 6.00% per annum. Interest shall be computed on the basis of a 360 day year consisting of twelve (12) 30-day months. 1278398v10 2 1 x i y (3) The principal of the Note and interest thereon shall be payable solely from Ta� Increments derived from the Development Property. On each Note Payment Date, and subject to the provisions of the Note, the Authority shall pay, against the accrued and unpaid interest then due on the Note and then to reduce the principal of the Note, 95% of any Tax Increments received by the Authority during the preceding 6 months. (4) The Note shall be a special and limited obligation of the Authority and not a general obligation of the Authority, and only Tax Increments shall be used to pay the principal of and interest on the Note. If, on any Note Payment Date, the Ta�c Increments for the payment of the accrued and unpaid interest on the Note are insufficient far such purposes, the difference shall be carried forward, without interest accruing thereon, and shall be paid if and to the extent that on a future Note Payment Date there are Tax Increments in excess of the amounts needed to pay the accrued interest then due on the Note. (5) The Authority's obligation to make payments on the Note on any Note Payment Date ar any date thereafter shall be conditioned upon the requirement that (A) there shall not at that time be an Event of Default that has occurred and is continuing under this Agreement and (B) this Agreement shall not have been terminated pursuant to Section 11.3. (6) The Note shall be governed by and payable pursuant to the additional terms thereof, as set forth in Exhibit N. In the event of any conflict between the terms of the Note and the terms of this Section 5.2, the terms of the Note shall govern. The issuance of the Note pursuant and subject to the terms of this Agreement, and the taking by the Authority of such additional actions as bond counsel for the Authority may require in connection therewith, are hereby authorized and approved by the Authority. Section 5.3 Use of Tax Increments. The Authority and the City shall be free to use the Tax Increments, other than those to which the Developer is entitled pursuant to the provisions of Section 5.2 hereof, for its administrative expenses and for any other purpose for which the Tax Increments may lawfully be used pursuant to applicable provisions of the Minnesota law. The City and Authority shall have no other financial participation in the Project other than as specifically set forth herein. Section 5.4 No Public Imnrovements. Neither the Authority nor the City shall have any obligation to construct, install, improve or modify any public improvements (including without limitation streets, sidewalks, curbs or utility services) in connection with the Development; the Developer acknowledging that all of such improvements or modifications, if any, shall be a part of the Minimum Improvements. 1278398v10 22 1 i ARTICLE VI CERTAIN FINANCING PROVISIONS Section 6.1 Encumbrance of the Development Propertv. Until the Completion Date, neither the Developer nor any successar in interest to the Developer will engage in any financing or any other transaction creating any mortgage or other encumbrance or lien upon the Development Property, ar portion thereof, whether by express agreement or operation of law, or suffer any encumbrance or lien to be made on ar attach to the Development Property except for the purpose of obtaining funds only to the extent necessary for constructing the Minimum Improvements (including, but not limited to, land and building acquisition, labor and materials, professional fees, real estate taxes, construction interest, arganization and other actual costs of development). Section 6.2 Conv of Notice of Default to Mort�a�ee. If the Authority delivers any notice or demand to the Developer with respect to a Developer Event of Default under this Agreement, the Authority will also deliver a copy of such notice ar demand to the mortgagee of any Mortgage at the address of such mortgagee provided to the Authority in a written notice from the Developer or the mortgagee. Section 6.3 Mort�a�ee's Option to Cure Events of Default. Upon the occurrence of a Developer Event of Default, the mortgagee under any Mortgage will have the right within the time period required by this Agreement to cure or remedy such Developer Event of Default. Section 6.4 Defaults Under Mort�a�e. In the event the Developer is in default under any Mortgage, the mortgagee, within ten (10) days after it becomes awaxe of any default and prior to exercising any remedy available to it due to such default, shall notify the Authority in writing of (i) the fact of default; (ii) the elements of default; and (iii) the actions required to cure the default. If, within the time period required by the Mortgage, the Authority elects (at its sole option) to cure any default under the Mortgage, the mortgagee will pursue none of its remedies under the Mortgage based on such default. Section 6.5 Subordination of A�reement. In order to facilitate the obtaining of financing for the construction of the Minimum Improvements, the Authority agrees to subordinate the lien of the Authority Mortgage to the documents executed in connection with the Construction Loan Mortgage, provided that such subordination shall not deprive the Authority or otherwise limit any of the Authority's rights or remedies under this Agreement or the Note. iz�s39a�io 23 I ARTICLE VII REAL PROPERTY TAXES AND ASSESSMENTS Section 7.1 Real Propertv Taxes and Assessments. The Authority shall pay any real estate ta�ces and installments of special assessments with respect to the Development Property payable prior to the year in which a Closing occurs. Any real estate taxes and installments of special assessments payable with respect to the Development Property in the year of the Closing shall be prorated on a calendar year basis between the Developer and the Authority as of the Closing Date. The Developer shall pay a11 real estate taxes and installments of special assessments due and payable with respect to the Development Property in the year following the year in which the Property is conveyed or otherwise transferred to the Developer and each year thereafter. i2�s39s�io 24 ARTICLE VIII INSURANCE AND CONDEMNATION Section 8.1 Insurance. (a) The Developer will obtain and continuously maintain insurance on the entire Development Property (including the Minimum Improvements) and, from time to time at the request of the Autharity, furnish proof to the Authority that the premiums for such insurance have been paid and the insurance is in effect. The insurance coverage described below is the minimum insurance coverage that the Developer must obtain and continuously maintain: (i) Builder's risk insurance, written on the so-called "Builder's Risk-- Completed Value Basis," in an amount equal to one hundred percent (100%) of the insurable value of the Minimum Improvements, and with coverage available in nonreporting form on the so-called "all risk" form of policy. (ii) Comprehensive general liability insurance in amounts and coverages normally held by businesses engaged in activities similar to those of the Developer. (iii) Workers compensation insurance, with statutory coverage. (b) All insurance required in this Article shall be obtained and continuously maintained in responsible insurance companies selected by the Developer or its successor that are authorized under the laws of the State to assume the risks covered by such policies. The Developer shall deposit annually with the Authority a certificate or certificates ar binders of the respective insurers stating that such insurance is in force and effect. Unless otherwise provided in this Article, each policy must contain a provision that the insurer will not cancel nor modify the policy without giving written notice to the insured and the Authority at least thirty (30) days befare the cancellation or modification becomes effective. Not less than fifteen (15) days prior to the expiration of any policy, the Developer or its successor must furnish the Authority evidence satisfactory to the Authority that the policy has been renewed or replaced by another policy conforming to the provisions of this Article, or that there is no necessity for the policy under the terms of this Agreement. In lieu of separate policies, the Developer or its successor may maintain a single policy, blanket or umbrella policies, or a combination thereof, having the coverage required herein, in which event the Developer or its successor will deposit with the Authority a certificate or certificates of the respective insurers as to the amount of coverage in force. (c) The Developer agrees to notify the Authority immediately in the case of damage exceeding $100,000 in amount to, or destruction of, the Minimum Improvements ar any portion thereof resulting from fire or other casualty. Subject to the terms of any Mortgage, in the event that any such damage does not exceed $100,000, the Developer will forthwith repair, reconstruct and restore the Minimum Improvements to substantially the same ar an improved condition or value as it existed prior to the event causing such damage and, to the extent necessary to accomplish such repair, reconstruction and restoration, the Developer or its 1278398v10 2$ successor will apply the Net Proceeds of any insurance relating to such damage received by the Developer or its successor to the payment or reimbursement of the costs thereof. In the event the Minimum Improvements or any portion thereof is destroyed by fire or other casualty prior to the Completion Date, and the damage ar destruction is estimated to equal or exceed $100,000, then the Developer, within one hundred fifty (150) days after such damage or destruction, subject to the terms of any Mortgage, will proceed forthwith to repair, reconstruct and restore the damaged Minimum Improvements to substantially the same condition or utility value as it existed prior to the event causing such damage or destruction and, to the extent necessary to accomplish such repair, reconstruction and restoration, the Developer will apply the Net Proceeds of any insurance relating to such damage or destruction received by the Developer to the payrnent or reimbursement of the costs thereof. Developer shall pay the entire cost of repair, reconstruction and restoration if the net proceeds of the insurance are insufficient. Section 8.2 Condemnation. In the event that title to andlor possession of the Development Property and Minimum Irnprovements, or any material part thereof, is threatened with a taking through the exercise of the power of eminent domain, the Developer will notify the Authority of the threatened taking with reasonable promptness; and shall keep the Authority advised of the progress thereof. 1278398v10 26 1 ARTICLE IX DEVELOPER COVENANTS Section 9.1 Maintenance and Oneration of the Development. In addition to other maintenance and operation obligations of the Developer under this Agreement, the Developer will, at all times during the term of this Agreement, maintain and operate the Development Property and the Minimum Improvements in a safe and secure way and in compliance with this Agreement and all federal, State and local laws, regulations, rulings and ordinances applicable thereto. The Developer shall pay all of the expenses of the operation and maintenance of the Development Property and the Minimum Improvements, subject to the provisions of Section 4.13(c} of this Agreement, including all premiums for insurance insuring against loss or damage thereto and adequate insurance against liability for injury to persons or property arising from the construction or operation of the Minimum Improvements as required pursuant to this Agreement. The Developer shall also pay all costs and expenses of capital improvements and replacements of the Minimum Improvements. During construction or operation of the Minimum Improvements, Developer shall not cause any person warking in or attending the Development far any purpose, to be exposed to any hazardous or unsafe condition; and shall cause its contractors, employees or agents employed by Developer to work on the Development Property to take such precautions as may be available to protect the persons in and around the Development Property from hazards arising from the work, and shall further require each such contractor to obtain and maintain liability insurance protecting against liability to persons for injury arising from the work. The Developer shall also be solely responsible for the maintenance and any capital replacement and/or improvement of the storm water retention pond located adjacent to the Development Property, excluding maintenance related to the waterfall and water level maintenance well located on the adjacent property. Section 9.2 Reciprocal Access and Parkin� A�reement. The Developer will enter into the reciprocal access and parking agreement with the Authority attached hereto as Exhibit L upon execution of this Agreement to govern the Developer and Authority's common use of the driveway and roadway into the parking area for the Earle Brown Heritage Center, and the parties common use of the parking area currently existing for the Earle Brown Heritage Center and the proposed parking axeas on the Development Property. 1278398v10 27 1 I ARTICLE X TRANSFER LIMITATIONS AND INDEMNIFICATION Section 101 Representation as to Development. The Developer represents to the Authority that its purchase of the Development Property, and its other undertakings under this Agreement, are for the purpose of developmg cornmercial properties, and not for the purpose of speculation in land holding. The Developer acknowledges that, in view of the importance of the development of the Development Property to the general welfare of the Authority and the City, the ualifications and identity of the Developer are of particulax concern to the Authority. The q Developer further acknowledges that the Authority is willing to enter into this Agreement with the Developer because of the qualifications and identity of the Developer; and in reliance on the limitations on transfer contained in Section 10.2 hereof. I Section 10.2 Limitations on Transfer. The Developer may, with prior written notice to the Authority, mortgage the Development Property and the Minimum Improvements to a lender providing construction or permanent financing for the Minimum Improvements. Except as otherwise provided in this Section, the Developer will not sell, assign, convey, lease, I mortgage, transfer or otherwise encumber in any other mode or manner this Agreement, the Develo ment Pro ert or the Minimum Im rovements, or any interest therein, without the P P Y P express written approval of the Authority, which may be given or withheld in the Authority's sole discretion. In the event that the Authority elects to consent to any proposed transfer, the Authority shall be entitled to require, as conditions to any approval of any such transfer of this Development Agreement, the Development Property or the Minimum Improvements that: (a) Any proposed transferee shall have the qualifications and financial responsibility, as determined by the Authority, necessary and adequate to fulfill the obligations I undertaken in this Agreement by the Developer; (b) Any proposed transferee, by instrument in writing satisfactory to the Authority and the City and in form recordable among the land records shall, for itself and its successors and assigns, and expressly for the benefit of Authority, have expressly assumed all of the obligations of the Developer under this Agreement and agreed to be subject to all the conditions and restrictions to which the Developer is subject; (c) There shall be submitted to the Authority for review all instruments and other legal documents involved in effecting transfer, and if approved by Authority, its approval shall be indicated to the Developer in writing; (d) The Developer and its transferee shall comply with such other conditions as the Authority may find desirable, in its sole discretion, in order to achieve and safeguard the purposes of the Act, the Development Plan and the Developer pocuments; and (e) In the absence of specific written agreement by the Authority and the City to the contrary, no such transfer or approval by the Authority and the City thereof shall be deemed to relieve the Developer or any other party bound in any way by this Agreement or 1278398v10 28 otherwise with respect to the construction of the Minimum Improvements, from any of its obligations with respect thereto. Section 10.3 Indemnification (a) The Developer releases from and covenants and agrees that the Authority and the City, their governing body members, officers, agents, including the independent contractars, consultants and legal counsel, servants and employees thereof (hereinafter, for purposes of this Section, collectively the "Indemnified Parties") shall not be liable far and agrees to indemnify and hold harmless the Indemnified Parties against any and all losses or damages to property ar any injury to or death of any person occurring at or about or resulting from any defect in the Development to the extent not attributable to the gross negligence of the Indemnified Parties. (b) Except for gross negligence of the Indemnified Parties, the Developer agrees to indemnify the Indemnified Parties, now and forever, and further agrees to hold the aforesaid harmless from any claims, demands, suits, costs, expenses (including reasonable attorney's fees), actions or other proceedings whatsoever by any person or entity whatsoever arising or purportedly arising from the actions or inactions of the Developer (or if other persons acting on its behalf or under its direction or control) under this Agreement, or the transactions contemplated hereby or the acquisition, construction, installation, ownership, operation and maintenance of the Development. Section 10.4 Limitation. All covenants, stipulations, promises, agreements and obligations of the Authority, or the Developer contained in this Agreement shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the Authority or the Developer, respectively, and not of any governing body member, officer, agent, servant or employee of the Authority, the City or the Developer in the individual capacity thereof. i2�ra3as�io 29 ARTICLE XI EVENTS OF DEFAULT AND REMEDIES Section 11.1 Develoner Events of Default. Any of the following shall be a Developer Event of Default: (a} A default shall occur under the Construction Loan Mortgage and is not cured within the time permitted therein; ar (b) failure by the Developer to observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement, including but not limited to the failure of the Developer to accomplish the activities set forth in the Timeline attached hereto as Exhibit K, and the continuation of any such failure for a period of thirty (30) days after written notice of such failure from any party hereto; ar (c) the Developer shall (i) file any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the United States Bankruptcy Act of 1978, as amended, or under any similar Federal or State law; or (ii) make an assignment for the benefit of its creditors; or (ii) become insolvent or adjudicated a baliknipt; or if a petition or answer proposing the adjudication of Developer, as a bankrupt or its reorganization under any present ar future Federal bankruptcy act or any similar Federal ar State law shall be filed in any court and such petition ar answer shall not be discharged or denied within ninety (90) days after the filing thereof; or a receiver, trustee ar liquidator of Developer, or of the Development, or part thereof, shall be appointed in any proceeding brought against Developer, and shall not be discharged within ninety (90) days after such appointed, or if Developer shall consent to or acquiesce in such appointment. Section 11.2 Authoritv Events of Default. The failure of the Authority to observe or perform any covenant, condition, obligation or agreement on its part,to be observed ar performed under this Agreement, and the continuation of such failure for a period of thirty (30) days after written notice of such failure from any party hereto shall be an Authority Event of Default. Section 11.3 Authoritv Remedies on Default. Whenever any Developer Event of Default occurs, the Authority may take any one or mare of the following actions: I (a) Accelerate the Note and, if the Note is not paid within twenty (20) days of acceleration, exercise remedies under the Authority Mortgage (including foreclosure). (b) Suspend its perforxnance under this Agreement and the Tax Increment Note. c If the Develo er Event af Default occurs rior to the Closin Date the P P g Authority may cancel and terminate this Agreement, pursuant to Minnesota Statutes, Section 559.21 upon thirty (30) days written notice of default. 1278398v10 30 (d) If the Developer Event of Default occurs after the Closing Date, the Authority may withhold the Certificate of Release of Forfeiture and/or cancel and terminate this Agreement and the Note. (e) Take whatever action at law or in equity may appear necessary or desirable to the Authority to collect any payments due under this Agreement, or to enforce performance and observance of any obligation, agreement, or covenant of the Developer under this Agreement. Section 11.4 Revesting Title in the Authoritv. If, subsequent to conveyance of the Development Property to the Developer, and before issuance of any Certificate of Release of Farfeiture pursuant to Section 4.8, a Developer Event of Default occurs and is not cured within any cure period allowed, then the Authority shall have the right to re-enter and take possession of the Development Property and to terminate and revest in the Authority such portion of the estate conveyed by the Deed to the Developer, it being the intent of this Agreement that the conveyance or transfer of the Development Property to the Developer shall be conditioned on the Developer's performance hereunder, and that upon the occurrence of an Event of Default by the Developer, all Development Property for which all rights and interests of the Developer, and any assigns ar successors in interest to and in the Development Property shall revert to the Authority. Section 11.5 Developer Remedies on Default. Whenever any Authority Event of Default occurs by the Authority, the Developer may take whatever action at law or in equity may appear necessary or desirable to the Developer to enforce specific performance and observance of any obligation, agreement, or covenant of the Authority under this Agreement, provided, however, that the Developer hereby waives any and all rights it may have under any theory of law or equity to make any claim against the Authority for any damages whatsoever regardless of the type of damages. Section 11.6 No Remedv Exclusive. No remedy herein conferred upon or reserved to the Authority is intended to be exclusive of any other available remedy or remedies unless otherwise expressly stated, 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 ar by statute. No delay or omission to exercise any right or power accruing upon any Developer Event of Default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. Section 11.7 No Additional Waiver Imnlied bv One Waiver. If 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 concurrent, previous or subsequent breach hereunder. Section 11.8 Reimbursement of Attornevs' Fees. If the Developer shall default under any of the provisions of this Agreement, and the Authority shall employ attorneys or incur other reasonable expenses for the collection of payments due hereunder, ar for the enforcement of performance or observance of any obligation or agreement on the part of the Developer iz�s39s�io 3 1 contained in this Agreement, the Developer will on demand therefor reimburse the Authority for easonable ex enses so incurred. the reasonable fees of such attorneys and such other r p I 1278398v10 32 ARTICLE XII ADDITIONAL PROVISIONS Sectian 121 Conflicts of Interest. No member of the Board or other official of the Authority shall have any financial�interest, direct or indirect, in this Agreement, the Development Property or the Minimum Improvements, or any contract, agreement or other transaction contemplated to occur or be undertaken thereunder or with respect thereto, nor shall any such member of the governing body or other official participate in any decision relating to the Agreement which affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested. No member, official or employee of the Authority shall be personally liable to the Authority in the event of any default or breach by Developer or successor or on any obligations under the terms of this Agreement. Section 12.2 Real Estate Agents. The Developer represents that it has retained Cambridge Commercial Realty as their broker in connection with the transactions contemplated hereby and will pay the broker commission for Cambridge Commercial Realty. The Developer hereby agrees to indemnify the Authority from any real estate ar other sales commission or fee payable to any broker hired or engaged by the indemnifying party in respect of the transactions contemplated by this Agreement. Section 12.3 T�tles of Articles and Sections. Any titles of the several parts, articles and Sections of the Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 12.4 Notices and Demands. Except as otherwise expressly provided in this Agreement, a notice, demand ar other communication under this Agreement by any party to any other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally, and in the case of Developer, is addressed to ar delivered personally to Developer at CAMBRIDGE Commercial Realty, 4530 West 77th Street, Suite 250, Edina Minnesota 55435, Attention: John Sheehan and O-H Hospitality, 215 North Central Avenue, Duluth, Minnesota 55807, Attention: Kent Oliver, with a copy to Hanft Fride, A Professional Association, 1000 US Bank Place, 130 West Superior Street, Duluth, Minnesota 55807, Attention: Bill Burns, in the case of the Authority, is addressed to or delivered personally to the Economic Development Authority of Brooklyn Center, 6301 Shingle Creek Parkway, Brooklyn Center, Minnesota 55430-2199, Attention: Executive Director, ar at such other address with respect to any such party as that party may, from time to time, designate in writing and forward to the other, as provided in this Section. Section 12.5 Counternarts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. Section 12.6 Law Governin�. This Agreement will be governed and construed in accordance with the laws of the State of Minnesota. ia�s39s�io 33 i Section 12.7 Consents and Aqprovals. In all cases where consents or approvals are required hereunder, such consents or approvals shall not be unreasonably conditioned, delayed or withheld. All consents or approvals shall be in writing in order to be effective. Section 12.8 Reuresentatives. Except as otherwise provided herein, all approvals and other actions required of or taken by the Authority shall be effective upon action by the Authority Representative. All actions required of or taken by Developer shall be effective upon action by a duly authorized officer of the respective party. Section 12.9 SuAersedin� Effect. This Agreement reflects the entire agreement of the parties with respect to the development of the Development, and supersedes in all respects all prior agreements of the parties, whether written or otherwise, with respect to the development of the Development. Section 12.10 Relationshiu of Parties. Nothing in this Agreement is intended, or shall be construed, to create a partnership or joint venture among or between the parties hereto, and the rights and remedies of the parties hereto shall be strictly as set forth in this Agreement. Section 12.11 Mediation. All claims, disputes or other matters in question between the parties to this Agreement arising out of or relating to this Agreement or breach thereof, shall be referred to non-binding mediation before, and as a condition precedent to, the initiation of any legal action hereof, provided for herein. Each party agrees to participate in up to four hours of mediation. The mediator shall be selected by the parties, or if the parties are unable to agree on a mediatar then any party can request the administrator of the Hennepin County District Court Civil ADR Program andlor similar person, to select a person from its list of qualified neutrals. The mediation shall be attended by employees or agents or each party having authority to settle the dispute. All expenses related to the mediation shall be borne by each party, including without limitation, the costs of any experts or legal counsel. All applicable statutes of limitations and all defense based on the passage of time are tolled while the mediation procedures are pending, and for a period of thirty (30) days thereafter. Section 12.12 Venue. All matters, whether sounding in tort or in contract, relating to the validity, construction, performance, or enfarcernent of this Agreement shall be controlled by and determined in accordance with the laws of the State of Minnesota, and the Developer agrees that all legal actions initiated by the Developer or Authority with respect to or arising from any provision contained in this Agreement shall be initiated, filed and venued exclusively in the State of Minnesota, Hennepin County, District Court and shall not be removed therefrom to any other federal or state court. Section 12.13 Provisions Survivin� Rescission or Exniration. Sections 10.3 and 11.9 shall survive any rescission, termination or expiration of this Agreement with respect to or arising out of any event, occurrence or circumstance existing prior to the date thereof. Section 12.14 Time of Essence. Time is of the essence for the observance and performance of the parties' respective obligations and duties under this Agreement. la�a39s�io 34 IN WITNESS WHEREOF, the Authority, the City and Developer have caused this Agreement to be duly executed in their names and on their behalf, all on or as of the date first above written. ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER By Executive Directar 1278398v10 3 5 BROOKLYN HOTEL PARTNERS, LLC By: Its: iz�s39s�io 36 EXHIBIT A LEGAL DESCRIPTION AND PID NUMBER OF DEVELOPMENT PROPERTY Legal Description: Lot 1, Block 1, Brooklyn Farm, according to the plat thereof on file and of record in the office of the Hennepin County Registrar of Titles, Minnesota PID Number: 351 19 21 430016 A-1 t EXHIBIT B SOURCES AND USES Total Sources Construction Loan Owner Equity Other Total Sources Total Development Costs Building Construction Construction Costs Underground Parking Environmental Demolition Site Work Landscaping ROW Utilities Construction Contingency Builders Risk Permits Sub-Total Building Construction Land Acquisition Soft Cost Construction City Fees Architectural Engineering Plat Inspecting Architect Total Soft Construction Soft Cost Sales Broker Draws Broker Commissions Marketing Sales Office Marketing Advertising 1278398v10 B-1 Sub-Total Soft Cost Sales Soft Cost Operations Legal Operations Insurance Operations CLC Plat Other Soft Cost Bank Reimbursable Real Estate Ta.�ces Developezs Overhead Sub-Total Soft Cost Operations Construction Loan Interest Construction Loan Closing Costs Title Insurance Mortgage Registration T� Financing Fee Financing Release Fee Legal Closing Survey Soil Test Land Appraisal Loan Appraisal Loan Disbursement Fee Unit Closing Cost Sub-Total Closing Costs Total Develonment Costs 1278398v10 B-2 3 EXHIBIT'C CERTIFICATE OF RELEASE OF FORFEITURE WHEREAS, the Economic Development Authority of Brooklyn Center (the "Grantar"), a public body corparate and politic, by a Deed recorded in the Office of the County Recorder or the Registrar of Titles in and for the County of Hennepin and State of Nlinnesota, as Document i Number has conveyed to Brooklyn Hotel Partners, LLC (the "Grantee") in the County of Hennepin and State of Minnesota, the following legally described property to wit: and WHEREAS, said Deed incorporated and contained certain covenants and restrictions, the breach of which by the Grantee, its successors and assigns, would result in a forfeiture and right of re-entry by the Grantor, its successors and assigns, said covenants and restrictions being set forth in said Deed and in a Development Agreement executed by and between the Grantar and the Grantee dated 2004 (the "Development Agreement"); and WHEREAS, the Grantee has to the present date perform ed said covenants and conditions insofar as it is able in a manner deemed sufficient by the Grantor to permit the i execution and recording of this certification; rtif that all th e conditions re uired to be satisfied by W HEREFORE this is to ce q NO T y the Grantee under Section 4.8 of the Development Agreement have been satisfied by the Grantee therein and that the provisions far forfeiture of title and right to reentry far breach of condition I subsequent by the Grantor, contained therein, are hereby released absolutely and farever insofar as the a 1 to the land described herein, and the County Recorder or the Registrar of Titles in Y PP Y and far the County of Hennepin and State of Minnesota is hereby authorized to accept for recarding and to record the filing of this instrument, to be a conclusive determination of the I satisfactory termination of the covenants and conditions of the contract referred to herein which 1278398v10 C-1 I would result in a forfeiture by the Grantee, its successors and assigns, and right of re-entry in the Grantor, its successors and assigns, as set forth in said Deed, and that said Deed shall otherwise remain in fuli force and effect. IN WITNESS WHEREOF, the Authority has caused this Certificate of Release of Forfeiture to be executed with by its duly authorized officer as of the day of 2004. ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER By: Its: Executive Director STATE OF MINNESOTA SS COUNTY OF HENNEPIN The foregoing instrument was acknowledged before me this day of 2004, by the Executive Director of the Economic Development Authority of Brooklyn Center, a body corparate and politic organized and existing under the Constitution and laws of the State of Minnesota, on behalf of said Authority. Notary Public iz�s39a�ta C-2 EXHIBIT D QUIT CLAIM DEED Cotporarion Partnership or Limited Liability Company to Corporation, Parmership or Limited Liability Comvany No delinquent ta�ces and transfer entered; Certificate of Real Estate Value filed not required Certificate of Real Estate Value No. County Auditor By Deputy STATE DEED TAX DUE HEREON: Date: 2004 (Reserved for recording data) FOR VALUABLE CONSIDER.ATION, the Economic Development Authority of Brooklyn Center, a public body corporate and politic (the "Grantor"), hereby conveys and quitclaims to Brooklyn Hotel Partners, LLC, a Minnesota limited liability company (the "Grantee") the real property in Hennepin County, Minnesota, described as follows (the "Property"): See attached Exhibit A together with all hereditaments and appurtenances belonging thereto (the "Property"). Grantor's delivery of this Deed and conveyance of title, and Grantee's acceptance of this Deed and title to the Property, are expressly subject to: (1) the terms and conditions and the rights of the Grantor and the obligations of the Grantee under that certain Development Agreement by and between Grantor and Grantee dated 2004 (the "Development Agreement"), including without limitation the reversionary provisions of Section 11.5; (2) reservation of minerals and mineral rights; (3) real estate taxes and special assessments due and payable in 2004 and subsequent years; (4) applicable zoning laws and ordinances and all other local, state, regional and federal laws and regulations; (5) all easements, covenants, conditions and restrictions of recard, if any; and (6) all easements and rights-of-way shown in any recorded plat. Promptly after the conditions set forth in Section 4.8 of the Development Agreement have been satisfied, the Grantor will furnish the Grantee with a Certificate of Release of Forfeiture in the form attached to this Deed as Exhibit B. Such certification by the Grantor shall be (and it shall be so provided in the certification itsel fl a conclusive determination of satisfaction of the requirements of Section 4.8 of the Development Agreement of the Developer to construct the Minimum Improvements, it being the intention of the parties that upon the granting and filing of the Certificate of Release of Forfeiture that the right of reentry contained in this Deed, be forever released and terminated as to the Property. 1278398v10 D-1 In the event that, prior to the execution and delivery of the Certificate of Release of Forfeiture, the Grantee herein shall default under Section 11.2 of the Development Agreement and fail to cure such default within the period and in the manner stated in Section 11.2, then the Grantor shall have the right to re-enter and take possession of the property and to terminate and revest in the Grantor the estate conveyed by this Deed to the Grantee, its assigns or successors in interest, in accordance with the terms of the Agreement. Grantee covenants and agrees that no discrimination because of race or religion, political or other affiliation will be allowed or permitted to occur in the use, sale ar rental of any portion of the Property. It is intended and agreed that the above and foregoing agreement and covenants shall be covenants running with the land, and that they shall, in any event, and without regard to technical classification or designation, legal or otherwise, and except only as otherwise specifically provided in this Deed, be binding, to the fullest extent permitted by law and equity for the benefit and in favor of, and enforceable by, the Grantor, its successors and assigns, and any successor in interest to the Property, or any part thereof against the Grantee, its successors and assigns, and every successor in interest to the Property, ar any part thereof ar any interest therein, and any party in possession or occupancy of the Property or any part thereof. The Grantor does not know of any wells located on the described real property. ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER By: Its: 1278398v10 D-2 STATE OF MINNESOTA SS COUNTY OF HENNEPIN The foregoing instrument was acknowledged before me this day of 2004, by the of the Economic Development Authority of Brooklyn Center, a public body corporate and politic, on behalf of said body. Notary Public THIS INSTRUMENT WAS DR.AFTED BY: Briggs and Morgan, P.A. (MMD) W2200 First National Bank Building 332 Minnesota Street St. Paul, MN 55101 i2�s39s�io D-3 y Exhibit A Legal Description of the Property 1278398v10 �-4 e j EXHIBIT E PERMITTED ENCUMBRANCES 1. Real estate taxes and special assessments due and payable in 2004 and subsequent years. 2. All easements, covenants, conditions and restrictions of record, if any. 3. All easements and rights-of-way shown in any recorded plat. 4. Reservation of minerals and mineral rights. 5. Applicable zoning laws and ordinances and all other local, state, regional and federal laws and regulations. 6. Those obligations, restrictions and conditions as provided in the Development Agreement. I i2�s39s�io E-1 i EXHIBIT F MORTGAGE THIS MORTGAGE, (the "Mortgage") is made as of the day of 2004 by Brooklyn Hotel Partners, LLC, a Minnesota limited liability company, with its principal place of business located at Minnesota, (hereinafter designated as the "Mortgagor"), in favor of the Economic Development Authority of Brooklyn Center, a public body corporate and politic whose address is 6301 Shingle Creek Parkway, Brooklyn Center, Minnesota, 55430 (hereinafter designated as "Mortgagee" or "EDA"). WITNESSETH: I. MortEa�e Pronertv. That said Mortgagar hereby mortgages and conveys to said mortgagee those certain real property and improvements situated in the County of Ramsey, State of Minnesota, and legally described on Exhibit A attached hereto and made a part hereof, improvements and all personal property and equipment, and all products and proceeds thereof owned by Mortgagee and used in the operation of the Project, as defined below (herein, collectively the "property"). This Mortgage dated 2004, by and between Lender and Brooklyn Hotel Partners, LLC, is given in consideration of and as security for the payment of TWO MILLION ONE HLTNDRED SIXTY-FNE THOUSAND AND NO/100 DOLLARS ($2,165,000.00) (the "Land Sale Laan"), receipt of which is hereby acknowledged and which is made to enable Mortgagor to purchase the property to undertake construction of a full service hotel, full service restaurant and indoor water park on the Property located in Brooklyn Center, Minnesota (the "Project"). The Loan is evidenced by a Promissory Note ("the Note") in the amount of TWO MILLION ONE HLJNDRED SIXTY-FIVE THOUSAND AND NO/100 DOLLARS ($2,165,000.00) executed by Brooklyn Hotel Partners, LLC, to the order of the Mortgagee of even date herewith with a final maturity date of or such earlier date as is set forth in Section 3.4 of the Development Agreement dated 2004 by and between the Mortgagor and the EDA. II. Covenants. Mortgagor makes and includes in this Mortgage the Statutory Covenants and other provisions set forth in Minnesota Statutes Section 507.15, and, Mortgagor covenants with Mortgagee the following covenants: A. To warrant title to the Property, subject to those matters set forth in Exhibit B attached hereto; B. To pay the indebtedness as provided in the Note; C. To pay all real property taxes; ia�a39s�to F-1 I I D. That the Property shall be kept and maintained in good condition, repair, and operating condition free from any waste, misuse, or any hazardous substances or materials as defined in federal and state environmental laws (except for small quantities of substances used for normal household purposes); E. Mortgagor shall keep any buildings on the Property insured against loss by fire and other hazards for at least the sum of the full insurable value of the Property, far the protection of the Mortgagee; and all such policies shall name Mortgagee as loss payee, and provide for not less than thirty (30) days notice to Mortgagee of change in coverage or cancellation of said policy; F. That the whole of the principal sum evidenced by the Note shall become due after the occurrence of an Event of Default, as defined in the Development Agreement, at the option of the Mortgagee, as provided hereafter; G. To pay, when due, the principal on the Note and junior mortgages; H. That the Mortgagor shall not sell or otherwise transfer the Property during the term of the Mortgage without priar written consent of the Mortgagee; L Failure to abide by this covenant shall result in acceleration of all sums due, foreclosure and direct sale of the Project, or any other remedy of the Mortgagee, legal or equitable; J. (Reserved) K. To comply with nondiscrimination, equal opportunity, affirmative marketing and minority and women's business enterprises set forth in 24 CFR 511.13; L. To comply with federal requirements regarding labor standards and handicapped accessibility (except that if any HUD (as hereafter defined) requirements are more restrictive, HUD requirements shall apply); M. That each contractor, subcontractor and material supplier comply with all rules, regulations, ordinances and laws bearing on its conduct or work, including Federal Davis-Bacon Labor Standards. N. (Reserved) O. (Reserved) P. (Reserved) Q. (Reserved) R. To comply with the requirements of the Americans With Disabilities Act and all other requirements established by any federal, state, or local governmental authorities. 1278398v10 F'-2 ,i In case of failure to pay said taxes and assessments, prior liens or encumbrances, expenses and attorney's fees as above described, or to insure said buildings, improvements, and fixtures and deliver the policies as aforementioned, Mortgagee may pay said taxes, assessments, prior liens, expenses and attorney's fees and interest thereon, or obtain insurance, and shall be impressed as an additional lien upon the Property and be immediately due and payable from Mortgagor to Mortgagee and this Mortgage shall from date thereof secure the repayment of such advances with interest. III. Default and Remedies. If a Developer Event of Default (as defined in the Development Agreement and as hereinafter defined) shall occur (and such default or Event of Default shall continue for a period of thirty (30) days (or such longer period as may be permitted pursuant to the terms of this Mortgage) after written notice to Mortgagor from Mortgagee specifying such default or Event of Default), then Mortgagee may (i) declare immediately due and payable the entire unpaid principal balance, and Mortgagee, and its successors and assigns, are hereby authorized and empowered to foreclose this Mortgage by action or advertisement, pursuant to the statutes of the State of Minnesota, in such case made and provided, power being expressly granted to sell the Property at public auction and convey the same to the purchaser in fee simple and, out of the proceeds arising from such sale, to pay the principal of the Note with interest, together with all legal costs and charges of such foreclosure and the maximum attorneys' fees permitted by law; and (ii) exercise any of the remedies available under the Minnesota Uniform Commercial Code. MORTGAGOR HEREBY: EXPRESSLY CONSENTS TO THE FORECLOSURE AND SALE OF THE PROPERTY BY ACTION PURSUANT TO MINNESOTA STATUTES CHAPTER 581 OR, AT THE OPTION OF MORTGAGEE, BY ADVERTISEMENT PURSUANT TO MINNESOTA STATUTES CHAPTER 580, WHICH PROVIDES FOR SALE AFTER SERVICE OF NOTICE THEREOF UPON THE OCCUPANT OF THE PROPERTY AND PUBLICATION OF SAID NOTICE FOR SIX WEEKS 1N THE COUNTY 1N MINNESOTA WHERE THE PROPERTY IS SITUATED; ACKNOWLEDGES THAT SERVICE NEED NOT BE MADE UPON MORTGAGOR PERSONALLY (UNLESS MORTGAGOR IS AN OCCUPANT) AND THAT NO HEARING OF ANY TYPE IS REQUIRED 1N CONNECTION WITH THE SALE; AND EXCEPT AS MAY BE PROVIDED IN SAID STATUTES, EXPRESSLY WAIVES ANY AND ALL RIGHT TO PRIOR NOTICE OF SALE OF THE PROPERTY AND ANY AND ALL RIGHTS TO A PRIOR HEARING OF ANY TYPE 1N CONNECTION WITH THE SALE OF THE PROPERTY. MORTGAGOR ACKNOWLEDGES THAT IT IS REPRESENTED BY LEGAL COUNSEL; THAT BEFORE SIGNING THIS MORTGAGE, THIS SECTION AND MORTGAGOR'S CONSTITUTIONAL RIGHTS WERE FULLY EXPLAINED BY SUCH COUNSEL; AND THAT MORTGAGOR UNDERSTANDS THE NATURE AND EXTENT OF THE RIGHTS WAIVED HEREBY AND THE EFFECT OF SUCH WAIVER. Mortgagee, prior to acceleration, shall furnish written notice to Mortgagor at the address provided above, by Certified or Registered United States mail, postage prepaid, specifying: 1. The event of default; 12�s39s�io F-3 I 2. The action re uired to cure such default; q 3. A date, not less than ten (10) days from the date the notice is mailed to Mortgagor, by which such default on or befare the date specified in the notice may result in rt he notice shall acceleration of the sums secured b this Mort a e and sale of the Pro e. T Y gg p Y further inform Mortgagor of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Mortgagor to acceleration and sale. If the default is not cured on or before the date specified in the notice, Mortgagee at 1 due Mortgagee s option, may declare all of the sums secured by the Mortgage to be immediate y and payable without further demand and may invoke the power of sale hereby granted and any other remedy permitted by applicable law. Notwithstanding Mortgagee's acceleration of the sum secured by this Mortgage, Mortgagor shall have the right to have any proceedings begun by Mortgagee to enforce this Mortgage discontinued at any time prior to the earlier o£ a. A sale of the Property pursuant to the power of sale contained in this Mortgage; or b. A judgment enfarcing this Mortgage if: (i) Mortgagor pays Mortgagee all sums constituting the default actually existing under this Mortgage and the Note at the commencement of foreclosure proceedings under this Mortgage and costs and attorneys' fees permitted by law to be recovered by Mortgagee; (ii) Mortgagor cures all breaches of any other covenants or agreements of Mortgagor contained in this Mortgage; and (iii) Mortgagor takes such action as Mortgagee may reasonably require to assure that the lien of this Mortgage, Mortgagee's interest in the Property, and Mortgagor's obligation to pay the sums secured by this Mortgage shall continue unimpaired. Upon such payment and cure by Mortgagor, this Mortgage and the obligations secured hereby shall remain in full force and effect as if no acceleration had occurred. Any of the following events shall constitute an "Event of Default" under this Mortgage. I a Mort a or shall default in the a ent of the principal sum of the Note gg pYm when due and which default shall continue without cure for thirty (30) days foliowing I written notice thereof by Mortgagee. (b) Mortgagor shall default in any of the terms or conditions of the Permitted Encumbrances and such default shall not be cured in accordance with the provisions of I applicable documents and which default shall continue without cure for thirty (30) days following written notice thereof by Mortgagee. iz�s39svio F-4 t Y (c) Mortgagor shall default in the performance or observance of any other agreements or conditions required to be performed or observed by Mortgagor under this Mortgage or the Note which default shall continue without cure for thirty (30) days following written notice thereof by Mortgagee. �n thi ort a e r d An re resentation r warrant made b a Mort a or i s M o Y P o Y Y g g g g any collateral document shall prove untrue in any material respect or materially misleading as the time such representation or warranty was made. (e) Mortgagar shall become unable to pay its debts as the same become due, or shall make an assigrunent for the benefit of creditors or shall be adjudicated bankn,ipt; or shall file a voluntary etition in bankni tcy ar to effect a plan or other arrangement p P with creditors, or to liquidate assets under court supervision, or shall have applied for or permitted the appointment of a receiver or trustee ar custodian for any of the property ar se custodian shall have been a ointed for an as ts of Mortgagor or a trustee, receiver or pp y property or assets of Mortgagor who shall not have been discharged within sixty (60) days after the date of such appointment, or shall have made application to a court of competent jurisdiction to become dissolved. fl Execution shall have been levied against the Project ar any lien creditor's suit to enforce a judgment against the Property shall have been brought and (in either case) shall continue unstayed and in effect far a period of more than sixty (60) days. (g) The Project is materially damaged or destroyed by fire ar other casualty and the loss in the reasonable judgment of Mortgagee, is not adequately covered by additional owner equity or insurance proceeds actually collected or in the process of collection. (h) An occurrence of any Developer Event of Default under the Development Agreement. IV. (Reserved) V. (Reserved) VI. Additional Provisions. A. This Mortgage and the Note shall be construed according to the laws of the State of Minnesota. B. (Reserved) C. (Reserved) D. (Reserved) E. Subj ect to any of Borrower's first Mortgagee's requirements, in the event of any fire or other casualty to the Project or eminent domain proceedings resulting in condemnation of i2�s39a�io F-5 I I the Project or any part hereof, Mortgagor shall have the right to rebuild the Project, and to use all available insurance or condemnation proceeds therefor, provided that (a) such proceeds are sufficient to keep the Loan in balance and rebuild the Project in a manner that provides adequate security to Mortgagee for repayment of the Loan or if such proceeds are insufficient then Mortgagor shall have funded any deficiency, and (b) Mortgagee shall have the right to approve plans and specifications for any major rebuilding and the right to approve disbursements of insurance or condemnation proceeds for rebuilding under a construction escrow or similar arrangement. If the casualty or condemnation affects only part of the Project and total rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the Loan in a manner that provides adequate security to Mortgagee for repayment of the remaining balance of the Loan. F. Subject to any of Borrower's first Mortgagee's requirements, at the option of Mortgagee after the occurrence of an Event of Default and so long as such default continues, Mortgagor shall deposit with Mortgagee on the first day of each and every month after written notice from Mortgagee to Mortgagor an amount equal to one-twelfth (1/12) of the annual taxes, assessments and insurance premiums (the "Charges") due on or relating to the Property as estimated by Mortgagee. From time to time out of such deposits and to the extent such deposits are sufficient, Mortgagee will, upon presentation to Mortgagee by Mortgagor of bills therefor, pay the Charges so long as such Event of Default continues. G. The Mortgagor will permit the Mortgagee's authorized representatives to enter the Property at all times during normal business hours for the purpose of inspecting the same; provided the Mortgagee shall have no duty to make such inspections and shall not incur any liabiiity or obligation for making or not making any such inspections. H. Mortgagor hereby agrees to defend, indemnify, and hold harmless Mortgagee from and against any and all claims, losses, damages, liabilities, costs, and expenses (including without limitation reasonable Attorneys fees) incurred by Mortgagee as a result of any hazardous materials or substances which are on the Property in violation of applicable environmental laws at any time during which Mortgagor shall be in custody ar control of the Property; and this indemnification shall remain in full farce and effect and shall survive the repayment of the Loan and the exercise of any remedy by the Mortgagee hereunder including a foreclosure of the Mortgage ar the acceptance of a deed in lieu of foreclosure. L Mortgagor shall have the right and privilege, but not the obligation, to borrow additional funds and to further encumber the security and collateral given and pledged to Mortgagee hereunder at any time, from time to time, and as often as Mortgagor shall determine, but only with the priar written consent of the Mortgagee, subject to the Permitted Encumbrances identified in Exhibit B. J. (Reserved) K. If the Mort a ar fails to erform an of the covenants and agreements contained gg P Y in this Mortgage or if any action or proceeding is commenced which effects the Property or the interest of the Mortgagee therein, ar the tit�e thereto, then the Mortgagee, at Mortgagee's option, upon thirty (30) days advance written notice to Mortgagor, may perform such covenants and 1278398v10 F-6 i agreements defend against and/or investigate such action or proceeding, and take such other action as the Mortgagee deems necessary to protect the Mortgagee's interest. Mortgagee shall be the sole judge of the legality, validity, and priority of any claim, lien, encumbrance, tax assessment, charge and premium paid by it and of the amount necessary to be paid in satisfaction thereof. Mortgagee is hereby given the irrevocable power of attorney (which power is coupled with an interest and is irrevocable) effective upon the occurrence of an Event of Default, to enter upon the Property as the Mortgage's agent in the Mortgagor's name to perform any and all covenants and agreement to be performed by the Mortgagor as herein provided. Any amounts disbursed or incurred by the Mortgagee pursuant to this paragraph shall become additional indebtedness of the Mortgagor secured by this Mortgage. Unless Mortgagor and Mortgagee agree in writing to other terms of repayment, such amounts shall be immediately due and payable. Mortgagee shall, at its option, be subrogated to the lien of any mortgage or other lien discharged in whole or in part by the indebtedness or by the Mortgagee under the provisions hereof, and any such subrogation rights shall require the Mortgagee to incur any expense or do any act hereunder, and the Mortgagee shall not be liable to the Mortgagor for any damages or claims arising out of action taken by the Mortgagee pursuant to this paragraph. 1278398v10 F_7 'A IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be duly executed as of the day and year first above written. "MORTGAGOR": BROOKLYN HOTEL PARTNERS, LLC By: Its: STATE OF MINNESOTA ss. COUNTY OF RAMSEY The foregoing instrument was acknowledged before me this day of 2004, by the of Brooklyn Hotel Partners, LLC, a Minnesota limited liability company, on behalf of the Company. No�ary Public THIS INSTRUMENT WAS DRAFTED BY: Briggs and Margan, P.A. 2200 First National Bank Building 332 Minnesota Street Saint Paul, Minnesota 55101 Telephone: (651) 808-6600 Fax: (651) 808-6450 1278398v10 �'_g EXHIBIT G LAND SALE PROMISSORY NOTE FOR BROOKLYN HOTEL PARTNERS, LLC DATE: 2003 PROJECT: Brooklyn Hotel Partners, LLC PLACE: Saint Paul, Minnesota AMOUNT: $2,165,000.00 FOR VALUE RECEIVED, the undersigned (herein the "Borrower"} promises to pay to the order of the Economic Development Authority of Brooklyn Center (herein the "EDA" or its successors or assigns, the sum of TWO MILLION ONE HUNDRED SIXTY-FIVE THOUSAND AND NO/100 DOLLARS ($2,165,000.00) with no interest on the Maturity Date. The Maturity Date of the Note is the earliest of (1) (2) the date the Borrower sells the Development Property (as such term is defined in the Development Agreement dated 2004 executed by and between the Borrower and the EDA (the "Development Agreement"); (3) the occurrence of a Developer Event of Default under the Development Agreement; (4) the date the Borrower refinances any permanentloan (not a construction loan) on the Development Property in excess of the original principal amount of the loan; or {5) the date any general or any limited partnership interest in the Borrower is transferred. Said sum was made available to Borrower to enable Borrower to purchase property to undertake the construction of a full service hotel and restaurant and an indoor water park, on certain property (the "Property") located in the City of Brooklyn Center, Minnesota. The undersigned reserves the right to prepay at any time all or any part of the principal amount of this Note without the payment of penalties or premiums. IN THE EVENT the undersigned shall fail to pay the principal amount of this Note when due, and such failure shall continue without cure for 30 days following written notice thereof by the EDA, or the undersigned defaults in any term of the Mortgage, as herein defined, or upon the occurrence of a Developer Event of Default under the Developrnent Agreement then the unpaid principal amount of this Note, shall immediately become due and payable in full, at the option of the EDA, without further notice to the undersigned. The EDA may exercise any or all of its rights and remedies to secure repayment of this Note. Failure of the EDA to exercise such rights or remedies shall not constitute a waiver of such default. If this Note be reduced to judgment, such judgment shall bear the lawful interest rate as set by and accarding to the Minnesota State Statutes. i2�g39s�io G-1 If the undersigned shall default in the payment of this Note and suit is instituted by the EDA to recover on this Note, the undersigned agrees to pay all costs of such collection, including specifically, but not limited to the EDA's reasonable attorneys fees and court costs. THIS NOTE is secured by a real estate mortgage dated evenly herewith ("Mortgage") on certain premises described therein located in the County of Hennepin, State of Minnesota, duly filed of record with Hennepin County in the offices of the County Recorder, Hennepin County, Minnesota, and reference is made thereto for additional rights of EDA under this Note. The undersigned agrees that at the option of the EDA, the unpaid principal and accrued interest herein may be declared due and payable in full, without notice, in the event of a voluntary or involuntary transfer or conveyance of the legal or equitable title of the premises secured by the Mortgage, or any part thereof, or the voluntary or involuntary transfer or conveyance of any general partnership interest in the undersigned Borrower, without the prior written consent of the EDA. DEMAND, protest and notice of demand and protest are hereby waived, and the undersigned hereby waives, to the extent authorized by law, any and all homestead and other exemption rights which otherwise would apply to the debt evidenced by this Note. THIS NOTE is made with reference to and is to be construed in accordance with the laws of the State of Minnesota. 1278398v10 G_2 IN WITNESS WHEREOF, this Note has been duly executed by the undersigned as of its date. "BORROWER" BROOKLYN HOTEL PARTNERS, LLC By: Its: 1278398v10 G-3 s r A 'i f a,� �l y �,dv ,j! .�x',;+ 1� Y 2 �a q r �3 A t s9 E z.:.�k �.s� ..�s J J ,:4�;`� :a. J~ F �-i% r -a.:. ii 4. S t P f�ii,�� Y/ sy�l r 'S c v ��o S�y ,r �r c� �e� f ��i r r� y b d V 1 '��t /y i'Y� F R l 'i QR Yll� ,1'i.l� J�.� C�� ..+{�I j J� a ��I ►k f ��i: .__'yy 8�,+� fr3�a� �3+� s C., t �k �,+'�.e�, 0��.,y� E'.�l� s-.1't,J�f i� y�'�' r� ��J �'r��l �a'�.� `k`o.�'A c: .a�l'.i� �'ti. r C�!�ro rin� d� �""r�' eJ i r ",rs w' Ov.�i�.cn :��e,p:. iie'�•� t� �'d/ '�i �e,rs et'.'. a rt ��I tiF: '��Il ''':�r� a ..�r� �t�;,s� a� �i a��ir 9 e�; I C:. f �w.�,.r.� y �r t, f• 'Ir.,: M v „e F r 4, .�ar��, B 1►�. �Mr./� F t�� y r,S§ r .o �a�J�,' �..s:r:� W ./W�, r! ��ja� ��il:� i� f ��9. i:. ��r' T� F'� i .��i i.. +y t ,f K r r e o Y a^� ;i,... 1 n r' a le ��"1 i� �o� 4c j.'a "�i4�' .I +S s u a;� _y xc: .,�ya i Y,�a e. +'r4y` w:. 1 t� .;a r T 1� 4 a I� f w .yj�S 1� Y �:y �'rT i�<!' d t w.. r... t: ;o I r. T e 1 4 ♦_i\i •,i'�"' w �2 .._�:,1Y .3. ::l f 1 3 /s:;`::t ;/r.:.' r s�,•:. a z I p .-�t� EXHIBIT I BUSINESS SUBSIDY REPORT Report of Brooklyn Hotel Partners, LLC, as Recipient of Business Subsidy This report is required by Section 4.10 of that certain Development Agreement, dated as of 2004 (the "Agreement"), among the Economic Development Authority of Brooklyn Center, Minnesota (the "Authority"), and Brooklyn Hotel Partners, LLC (the "Developer"), and as required by Minnesota Statutes, Section 116J.994, Subdivision 7, as amended. Capitalized terms which are used but not otherwise defined in this report have the meanings given to those under the Agreement. The Authority has under the Agreement granted a certain business subsidy to the Developer. Under the Agreement, the Developer is required to file reports with the Executive Director (1) on March 1 of each year, beginning with the March 1 immediately following the date of the issuance of a Certificate of Occupancy far the Project, being referred to herein as the Benefit Date, and (2) within 30 days after the Compliance Date, namely the date which is two years after the Benefit Date. Each March 1 report is required to report on the prior calendar year, and each other report shall report on the period since the last reporting period. The Developer's Job Goals under Section 4.10 of the Agreement are to create at the Project 30 permanent full-time equivalent jobs within two years from the Benefit Date. These jobs are required to have a wage of at least $7.00 per hour, exclusive of benefits. The Developer hereby certifies to the Authority the following: (1) As provided in the Agreement, the total fair market value of the Subsidy is estimated to be the type of Subsidy is the principal amount of a pay-as-you-go tax increment revenue note, with interest. The public purposes of the subsidy are to further development of the City's commercial and ta�c base and to create jobs. (2) The hourly wage of each permanent full-time equivalent job which has been created by the Developer at the Project since the Benefit Date, with separate bands of wages, are as follows: Number of Jobs Wage Levels Per Hour 1278398v10 I-1 I t (3) The cost of health insurance provided by the Developer for the above- referenced jobs, separated by bands of wages, is as follows: Number of Jobs Wage Levels Per Hour (4) If the Developer has not already met the Job Goals, it reasonably expects that it will meet those goals on or before 200 and is taking the following steps to meet the Job Goals: (5) The Developer has no parent corporation. *(6) Other than the subsidy provided by the Authority under the Agreement, there are no other State of Minnesota or "local government agency" grants of subsidy to the Developer for the Project, except for: Grantor Value Grantor Value (8) The Developer hereby agrees to provide upon request such other information as the Commissioner of the Department of Trade and Economic Development of the State of Minnesota may request the Authority or the Developer to provide or as may be required by the Subsidy Law. (9) The Developer represents that it has continuously occupied the Project since its completion, that the Developer has continuousiy used and occupied the Project, and the Developer expects said occupancy to continue for the foreseeable future. Verify iz�as9s�io 1_2 (10) The Developer is not in default on the date hereof of its obligations under any subsidy agreement under the Subsidy Law. BROOKLYN HOTEL PARTNERS, LLC B y Its: This report is to be filed with: Economic Development Authority of Brooklyn Center 6301 Shingle Creek Parkway Brooklyn Center, MN 55430-2199 Attn: Executive Directar 1278398v10 I-3 EXHIBIT J CONCEPT RENDERING OF WATER PARK I ia�e39s�io J-1 EXHIBIT K TIMELINE Date Activitv October 1, 2004 Preliminary Plans Delivered to Authority for Approval February 1, 2005 Construction Plans Delivered to Authority for Approval March 1, 2006 Evidence of Construction Financing Delivered to Authority April 1, 2005 Closing May 1, 2005 Commencement of Construction of Minimum Improvements December 31, 2006 Substantial Completion of Construction of Minimum Improvements 1278398v10 K-1 EXHIBIT L RECIPROCAL ACCESS AND PARHING AGREEMENT i��s39s�io L-1 EXHIBIT M INTENTIONALLY OMITTED i2�s39s�to M-1 EXHIBIT N FORM OF TAX INCREMENT NOTE LTNITED STATES OF AMERICA STATE OF MINNESOTA COUNTY OF HENNEPIN ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER, MINNESOTA TAX 1NCREMENT REVENUE NOTE OF 200_ (BROOKLYN HOTEL PARTNERS PROJECT) The Economic Development Authority of Brooklyn Center, Minnesota (the "Authority"), hereby acknowledges itself to be indebted and, for value received, hereby promises to pay the amounts hereinafter described (the "Payment Amounts") to Brooklyn Hotel Partners, LLC, a Minnesota limited liability company, ar its registered assigns (the "Registered Owner"), but only in the manner, at the times, from the sources of revenue, and to the extent hereinafter provided. The principal amount of this Note shall equal from time to time the principal amount stated above, as reduced to the extent that such principal shall have been paid in whole ar in part pursuant to the terms here�f. This Note is issued pursuant to that certain Development Agreement, dated as of 2004, as the same may be amended from time to time (the "Development Agreement"), by and between the Brooklyn Center Economic Development Authority, Minnesota {the "Authority"), and Brooklyn Hotel Partners, LLC, a Minnesota limited liability company (the "Company"). The unpaid principal amount hereof shall bear interest from the date of this Note at the simple, non-compounded rate of [six percent (6.00)%] per annum. Interest shall be computed on the basis of a 360-day year of twelve (12) 30-day months. The amounts due under this Note shall be payable on each February 1 and August 1, commencing August 1, 2007 to and including February l, 2011 (the "Final Note Payrnent Date"j (as defined in the Development Agreement) (the "Note Payment Dates"). On each Note Payment Date the Authority shall pay by check or draft mailed to the person that was the Registered Owner of this Note at the close of the last business day of the City preceding such Payment Date an amount equal to [95%] of the Ta�c Increments (hereinafter defined) received by the Authority during the six month period preceding such Payment Date. The Payment Amounts due hereon shall be payable solely from tax increments (the "Tax Increments") derived from the Development Property (as defined in the Development Agreement) which are paid to the Authority and which the Authority is entitled to retain pursuant to the provisions of Minnesota Statutes, Sections 469.174 through 469.1799, as the same may be amended or supplemented from time to time (the "Tax Increment Act"). This Note shall terminate and be of no further force and effect following the Final Payment Date defined above, ia�s39s�to N-1 on any date upon which the Authority shall have terminated the Development Agreement under Section 11.3 thereof, or on the date that all principal and interest payable hereunder shall have been paid in full, whichever occurs eaxliest. The Authority makes no representation or covenant, express or implied, that the Tax Increments will be sufficient to pay, in whole or in part, the amounts which are or may become due and payable hereunder. The Authority's payment obligations hereunder shall be further conditioned on the fact that no Event of Default under the Development Agreement shall have occurred and be continuing at the time payment is otherwise due hereunder, but such unpaid amounts shall become payable, without interest accruing thereon in the meantime, if said Event of Default shall thereafter have been cured; and, further, if pursuant to the occurrence of an Event of Default under the Development Agreement the Authority elects to cancel and rescind the Development Agreement, the Authority shall have no further debt or obligation under this Note whatsoever. Reference is hereby made to all of the provisions of the Development Agreement, including without limitation Section 11.3 thereof, for a fuller statement of the rights and obligations of the Authority to pay the principal of this Note and the interest thereon, and said provisions are hereby incorporated into this Note as though set out in full herein. This Note is a special, limited revenue obligation and not a general obligation of the Authority and is payable by the City only from the sources and subject to the qualifications stated or referenced herein. This Note is not a eneral obli ation of the Cit of Br o g g y o kl Center Yn Mmnesota, and neither the full faith and credit nor the taxing powers of the Authority are pledged to the payment of the principal of or interest on this Note and no property or other asset of the Authority, save and except the above referenced Tax Increments, is or shall be a source of payment of the Authority's obligations hereunder. This Note is issued by the Authority in aid of financing a project pursuant to and in full conformity with the Constitution and laws of the State of Minnesota, including the Tax Increment Act. This Note may be assigned only with the priar written consent of the Authority. In arder to assign the Note, the assignee shall surrender the same to the Authority either in exchange for a new fully registered note or for transfer of this Note on the registration records for the Note maintained by the City. Each permitted assignee shall take this Note subject to the foregoing conditions and subject to all provisions stated or referenced herein. IT IS HEREBY CERTIFIED AND RECITED that all acts, conditions, and things required by the Constitution and laws of the State of Minnesota to be done, to have happened, and to be perforrned precedent to and in the issuance of this Note have been done, have happened, and have been performed in regular and due form, time, and manner as required by law; and that this Note, together with all other indebtedness of the Authority outstanding on the date hereof and on the date of its act ual issuance and delive ry, does not cause the mdebtedness of the Authority to exceed any constitutional statutory limitation thereon. 1278398v10 N�2 I IN WITNESS WHEREOF, the Economic Development Authority of Brooklyn Center, Minnesota has caused this Note to be executed by the manual signatures of its Chair and Executive Director and has caused this Note to be issued on and dated 200 Chair Executive Director I ia�s39s�io N-3 CERTIFICATION OF REGISTRATION It is hereby certified that the foregoing Note, as originally issued on 200_, was on said date registered in the name of Brooklyn Hotel Partners, LLC, a and that, at the request of the Registered Owner of this Note, the undersigned has this day registered the Note in the name of such Registered Owner, as indicated in the registration blank below, on the books kept by the undersigned for such purposes. NAME AND ADDRESS OF DATE OF REGISTRATION SIGNATURE OF REGISTERED OWNER EXECUTIVE DIIZECTOR Brooklyn Hotel Partners, LLC 200 1278398v10 N-4 i EXHIBIT O DESCRIPTION OF ELIGIBLE COSTS Parking Landscaping Lighting Signage SAC and WAC Stortn Sewer Improvements Soil Corrections Handicapped Accessibility Improvements Building Sprinkler System Site Improvements Footing and Foundations 1278398v10 O-1 PARKING AND PEDESTRIAN LINK EASEMENT AGREEMENT This Agreement is entered into by ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER, a Minnesota public body corporate and politic ("EDA"), and BROOKLYN HOTEL PARTNERS, LLC, a Minnesota limited liability company ("Developer"), as of 200_ (the "Execution Date"). RECITALS: A. EDA is the owner of certain land located in Henne in Count Minnesota which is p Y improved and operated by the EDA as the Earle Brown Heritage Center, a conference and event center. B. Developer is the owner of certain land located in Hennepin County, Minnesota, located immediately adjacent to the Earle Brown Heritage Center which it acquired this date from the EDA and which it intends to develop and operate as a hotel and indoor water park facility. C. EDA and Developer desire to create common parking rights on their respective properties and to provide for the mutual use and enjoyment of an enclosed pedestrian link to be constructed on their properties by Developer. D. In order to encourage the common use and operation of their respective properties, EDA and Developer desire to enter into certain covenants and agreements as a part of a general plan, and to grant to each other certain reciprocal easements, in, to, over, and across their respective properties. AGREEMENT: EDA and Developer agree as follows: 1. Definitions 1.1 Center. The "Center" shall mean the Earle Brown Heritage Center and the adjacent hoteUindoar waterpark facility, legally described as: Lot 1, Block 1, Brooklyn Farm, according to the plat thereof on file and of record in the office of the Hennepin County Registrar of Titles, Minnesota, and Tracts D and F, Registered Land Survey No. 1594, Hennepin County, Minnesota. 1.2 Conference Facilitv. The "Conference Facility" shall mean the buildings and improvements comprising the Earle Brown Heritage Center located on the EDA Tract. 1657143v2 I 13 Develoner Tract. The "DeveloperTract" shall mean the property which is legally described as: Lot 1, Block l, Brooklyn Farm, according to the plat thereof on file and of record in the office of the Hennepin County Registrar of Titles, Minnesota. The boundaries of the Developer Tract are outlined and labeled "Developer Tract" on the Site Plan. On the Execution Date the Owner of the Developer Tract is Developer. 1.4 Development A�reement. The "Development Agreement" shall mean that certain Development Agreement dated 2004, by and between EDA and Developer relating to the acquisition and development of the HoteUWaterpark Facility, as the sazne may be amended, supplemented and extended from time to time. 1.5 EDA Tract. The "EDA Tract" shall mean the property which is �egally described as: Tracts D and F, Registered Land Survey No. 1594, Hennepin County, Minnesota. The boundaries of the EDA that are outlined and labeled "EDA Tract" on the Site Plan. On the Execution Date the Owner of the EDA Tract is EDA. 1.6 Facilitv or Facilities. A"Facility" or "Facilities" shall mean the Conference Facility and/or the HoteUWaterpark Facility. 1.7 HoteUWateroark Facilitv. The "HoteUWaterpaxk Facility" shall mean the buildings and improvements of the hotel and indoor waterpark facility to be constructed and located by Developer on the Developer Tract in accordance with and pursuant to the terms of the Development Agreement. 1.8 Occupant. "Occupant" shall mean any Person from time to time entitled to the use and occupancy of any portion of the land or a building in the Center under an ownership right or any lease, sublease, license, concession, or other similar agreement. 1.9 Owner. "Owner" shall mean each signatory hereto and, after complianee with the notice requirements set forth below, their respective successors and assigns who become owners of any portion of the Center. An Owner transferring all or any portion of its interest in the Center shall give notice to all other Owners of such transfer and shall include in such notice at least the following information: (a) the name and address of the transferee, and (b) a copy of the legal description of the portion of the Center transferred. No such transfer shall affect the existence, priority, validity or enforceability of any lien created under this Agreement or which is recorded against the transferred portion of the Center prior to receipt of 1657143v2 2 the notice. Until such notice requirement is complied with, the transferring Owner shall (for the purpose of this Agreement only) be the transferee's agent. Each Owner shall be liable for the performance of all covenants, obligations and undertakings set forth in this Agreement with respect to the portion of the Center owned by it which accrue during the period of such ownership, and such liability shall continue with respect to any portion transferred until the notice requirement set forth in this Section is complied with, at which time the transferring Owner's liability for future obligations shall terminate with respect to the portion transferred. The transferee Owner shall automatically become liable for all obligations, performance requirements and amounts which arise subsequent to compliance with the notice requirement. 1.10 Parkin� Lot Area. The "Parking Lot Area" shall mean the portions of the EDA Tract and the Developer Tract designated "Parking Lot Area" on Exhibit B. 111 Pedestrian Link. The "Pedestrian Link" shall mean the enclosed one-story, ground level, climate controlled structure to be installed and constructed by Developer on the EDA Tract and the Developer Tract in accordance with and pursuant to the terms of the Development Agreement providing a pedestrian access corridor between the Conference Facility and the Hotel/Waterpark Facility (such Pedestrian Link being referred to as the "Connection" in the Development Agreement). 1.12 Pedestrian Link Corridor Area. The "Pedestrian Link Corridor Area" shall mean the portions of the EDA Tract and the Developer Tract located within the Pedestrian Link and designated "Pedestrian Link Corridor Area" on Exhibit C. 113 Permittee. "Permittee" shall mean all Occupants and the officers, directors, employees, agents, contractors, customers, vendors, suppliers, visitors, invitees, licensees, subtenants, and concessionaires of Occupants insofar as their activities relate to the intended use of the Center. Among others, Persons engaging in any of the following activities will not be considered to be Permittees: 1.13.1 Exhibiting any placard, signs ar notice. 1.13.2 Distributing any circular, handbill, placard, or booklet. 1.13.3 Soliciting memberships or contributions. 1.13.4 Parading, picketing, or demonstrating. 1.13.5 Failing to follow regulations relating to the use of the Center. 1.14 Person. "Person" shall mean any individual, partnership, firm, association, corporation, trust, or any other form of business ar government entity. 1.15 Site Plan. The "Site Plan" shall mean the site plan which is attached to this Agreement as Exhibit A. 1657143v2 3 1.16 Tract. "Tract" shall mean any portion of the Center owned by an Owner. 2. Term This Agreement shall be effective as of the Execution Date and shall continue in full force and effect until 11:59 p.m. on the date which is 30 years after the Execution Date; provided, however, that this Agreement, and all restrictions and covenants contained in this Agreement, shall be automatically extended on a year to year basis following such date which is 30 years after the Execution Date unless any Owner notifies all other Owners, by notice given at least 4 months prior to the end of any year, that it exercises its option to prevent this Agreement from being so extended; and provided further that, whether or not this Agreement is so extended, the easements referred to in Section 3 shall cantinue in force and effect in perpetuity as provided in Section 3, except as otherwise specifically provided in subsections 3.3 and 4.6. Upon expiration of this Agreement, all rights and privileges derived from and all duties and obligations created and imposed by the provisions of this Agreement, except as relates to the easements mentioned above, shall terminate and have no further force ar effect: provided, however, that the expiration of this Agreement shall not limit or affect any remedy at law or in equity that an Owner may have against any other Owner with respect to any liability or obligation arising or to be performed under this Agreement prior to the date of such expiration. 3. Easements 3.1 Parkin�. Each Owner, for itself and its successors and assigns, hereby grants and conveys to each other Owner far its use and for the use of its Permittees, in common with others entitled to use the same, a perpetual, non-exclusive easement for parking and the passage of vehicles and pedestrians over a.nd across the Parking Lot Area of the grantor Owner's Tract. Such easement rights shall be subject to the following reservations and agreements as well as other provisions contained in this Agreement: 3.1.1 An Owner may at any time make changes to, close off, and/or construct buildings and improvements on, all or any portion of the Parking Lot Area on its Tract without the approval of any other Owner, so long as such change, closing or construction does not unreasonably interfere with any of the easements granted in subsections 3.2 through 3.5, inclusive, and further provided that all of the following conditions are met: 3.1.1.1 The accessibility of the Parking Lot Area for parking and pedestrian and vehicular traffic (as it relates to the remainder of the Parking Lot Area which is not subject to such change, closure or construction), is not unreasonably restricted or hindered. 3.1.1.2 No governmental rule, ordinance or regulation shall be violated as a result of such action, and such action shall not result in any 1657143v2 4 other Owner being in violation of any governmental rule, ordinance or regulation. 3.1.1.3 The number of remaining parking spaces on such Tract shall be at least equal to the number required by applicable zoning and building ordinances, without regard to or reliance upon the number of parking spaces available on the other Owner's Tract. 3.1.1.4 No change shall be made in the access points between the Parking Lot Area and the public streets; provided, however that additional access points may be created. 3.1.1.5 At least 30 days prior to making any such change, modification or alteration, the Owner desiring to do such work shall deliver to each other Owner copies of the plans therefar. 3.1.2 Each Owner reserves the right to close off its portion of the Parking Lot Area for such reasonable period of time as may be necessary to make needed repairs or as may be legally necessary, in the opinion of such Owner's counsel, to prevent the acquisition of prescriptive rights by anyone; provided however, that prior to closing off any portion of the Parking Lot Area, such Owner shall give written notice to each other Owner of its intention to do so, and shall attempt to coordinate such closing with each other Owner so that no unreasonable interference shall occur. 3.1.3 Each Owner reserves the right at any time and from time to time to exclude and restrain any Person who is not a Permittee from using its Parking Lot Area. 3.1.4 No Permittee shall be charged for the right to use the Parking Lot Area, except pursuant to a lease or other agreement entered into between an Owner and a Permittee. 3.1.5 Parking in the Parking Lot Area shall be limited to automobiles, motorcycles and pickup trucks; no semitrailers, recreational vehicles, boats, trailers or large trucks will be permitted to park in the Parking Lot Area; there shall be no overnight parking, except that overnight parking shall be permitted on the Developer Tract by Permittees of the Developer. 3.1.6 Each Owner shall use good faith, commercially reasonable efforts to require that all employees of its Occupants park in the portion of the Parking Lot Area on its Tract. 3.2 Pedestrian Link. Each Owner, for itself and its successors and assigns, hereby grants and conveys to each other Owner for its use and the use of its Permittees, in common with others entitled to use the same, a perpetual, non-exclusive easement for the passage of pedestrians over and across the Pedestrian Link 1657143v2 Corridor Area of the grantor Owner's Tract. Such easement rights sha11 be subject to the following reservations and agreements as well as other provisions contained in this Agreement: 3.2.1 Once constructed, no Owner shall may any changes, modifications or alterations to the Pedestrian Link except as provided in subsection 4.2. 3.2.2 Each Owner reserves the right to close off its portion of the Pedestrian Link Corridor Area far such reasonable period of time as may be necessary to make needed repairs or as may be legally necessary, in the opinion of such Owner's counsel, to prevent the acquisition of prescriptive rights by anyone; provided however, that prior to closing off any portion of the Pedestrian Link Corridor Area, such Owner shall give written notice to each other Owner of its intention to do so, and shall attempt to coordinate such closing with each other Owner so that no unreasonable interference shall occur. 3.2.3 Each Owner reserves the right at any time and from time to time to exclude and restrain any Person who is not a Permittee from using the Pedestrian Link Corridor Area or its Tract. 3.2.4 No Permittee shall be charged for the right to use the Pedestrian Link Corridor Asea. 3.2.5 The Pedestrian Link shall be used only as a pedestrian walkway. 3.3 Temporarv Access for Construction. EDA, far itself, its successors and assigns, hereby grants and conveys to Developer, a temporary, non-exclusive access easement over and across such portions of the EDA Tract as is reasonably necessary for Developer to construct the Pedestrian Link in accordance with and pursuant to the terms of the Development Agreement. Such temporary easement shall expire 1 year after the Execution Date. 3.4 General Access far Maintenance and Renairs. Each Owner, for itself and its successors and assigns, hereby grants and conveys to each other Owner a perpetual, non-exclusive easement over the granting Owner's Tract(s} for the purpose of access to and repairing and/or maintaining any roads, parking areas, portions of the Pedestrian Lirzk and/or other items which are located on the granting Owner's Tract but which, pursuant to the provisions of this Agreement, may be repaired and/or maintained by the grantee Owner. Nothing contained in this subs�ction shall prevent any granting Owner from at any time making changes to, closing off, and/or constructing buildings and improvements on any portion of its Tract not covered by the easements described in subsections 3.1 and 3.2 so long as (a) the other Owners continuously have reasonable access to the roads, parking areas, portions of the Pedestrian Link and/or other items which are located on the granting Owner's Tract but which, pursuant to the provisions of this Agreement, may be repaired and/or maintained by the grantee Owner, and (b) 1657143v2 6 such changes, closing andior construction do not violate any other provisions of this Agreement. 3.5 Access to Certain Buildin�s,. Each Owner, for itself and its successors and assigns, hereby grants and conveys to each other Owner a perpetual, non- exclusive easement over any portion of the granting Owner's Tract which is located within 10 feet of a building on the other Owner's Tract, if any, for the purpose of access to and repairing andlar maintaining the exterior of such building (including, without limitation, the Pedestrian Link); however, the existence of this easement shall not prohibit or restrict the granting Owner from constructing buildings, structures or other improvements within such 10 foot area, in which case the grantee Owner's easement shall not apply to the extent such 10 foot area is occupied by a building, above-grade structure or other improvement. 3.6 Restriction. No Owner shall grant any easement for anypurpose set forth in this Section 3 for the benefit of any property not within the Center; provided however, that the foregoing shall not prohibit the granting or dedicating of utility easements by an Owner on its Tract to governmental or quasi-governmental authorities or to public utilities; and provided further, that any Owner may grant a private utility easement to any Person so long as (a) the area of such easement is confined to the granting Owner's Tract and (b) such easement does not include any connection to any common utility lines. 4. Pedestrian Link 4.1 Desi�n. The Pedestrian Link has been designed and is to be constructed in accordance with and pursuant to the plans and specifications approved by EDA under the Development Agreement. 4.2 Modifications. No change, modification ar alteration in the Pedestrian Link or the location of the Pedestrian Link Corridor Area may be made by any Owner without the prior approval of the other Owner, provided that each Owner may make minor non-structural changes to the Pedestrian Link on its Tract which do not affect the exterior physical appearance of the Pedestrian Link without the consent of each Owner, provided that all of the following conditions are met: 4.2.1 The accessibility of the Pedestrian Link Corridar Area far pedestrian access is not unreasonably restricted ar hindered. 4.2.2 No governmental rule, ordinance or regulation shall be violated as a result of such action, and such action shall not result in any other Owner being in violation of any governmental rule, ordinance or regulation. 4.2.3 No change shall be made in the access points between the Pedestrian Link and the Conference Facility or the Pedestrian Link and the HoteUWaterpark Facility. 1657143v2 7 4.2.4 At least 30 days prior to making any such change, modification or alteration, the Owner desiring to do such work sha11 deliver to each other Owner copies of the plans therefor. Notwithstanding the foregoing, the Owner of the EDA Tract, may, without the prior written consent of the other Owner, make changes, modifications or alterations to the Pedestrian Link on its Tract provided an enclosed pedestrian access shall be maintained between the Facilities. Each Owner shall have the right, subject to all applicable laws and the easements and agreements described in this Agreement, to design and construct or expand existing structures on its Tract (other than the Pedestrian Link); provided, however, that any structure so constructed or expanded shall, at a minimum, allow for the repair, maintenance and operation of the Pedestrian Link as contemplated hereby. In the event that an Owner constructs or expands such a structure on its Tract which necessitates an alteration in a previously constructed portion of the Pedestrian Link, any Pedestrian Link alteration shall be solely the expense of the Owner doing the construction or expansion. Any modifications, alterations or changes to the completed Pedestrian Link and connections to the Facilities shall be made in accordance with and subject to all applicable federal, state and lacal laws, codes and ordinances. 4.3 Certain Onerations. The Owner of the EDA Tract sha11 be responsible for locking and unlocking the door located in the Pedestrian Link at the common boundary between the EDA Tract and the Developer Tract. Such door shall be locked at such times as EDA deems app�opriate in its sole discretion. The Pedestrian Link shall have passage doors into the Conference Facility and the HoteUWaterpaxk Facility. Said doors shall remain closed (other than to allow passage of pedestrians, ar in the event of emergencies) to avoid interference with efficient and proper operation of the respective heating, ventilating and air conditioning systems located within andlor serving the Pedestrian Link from the EDA Tract and the Developer Tract. Each Owner shall be responsible for security in the portion of the Pedestrian Link located on its Tract. The use of the Pedestrian Link shall be subject to such reasonable rules, regulations and restrictions for the equitable use thereof by the Owners and their Permittees as the Owners may, in their reasonable discretion, determine, and such rules, regulations and restrictions shall be enforced in a nondiscriminatory manner. 4.4 Utilities. Any and all utilities and services, including electricity, heating, ventilation and air conditioning, and the equipment necessary for providing the same to the Pedestrian Link shall be installed and provided so that the supply of such utilities and services for the Pedestrian Link shall originate from the Tract on which the Pedestrian Link is located. In other words, each Owner shall provide such utilities and services from its own Tract to the portion of the Pedestrian Link located on its Tract. The following utilities and systems will serve the Pedestrian Link: electricity, heating, ventilating and air conditioning systems and Each Owner shall operate, maintain and repair all utilities, services and systems serving the Pedestrian Link that are located within 1657143v2 g t its Tract, as well as all equipment used to monitar such utilities, services and systems, and the costs of such operation, maintenance and repair shall be paid by such Owner. Each Owner shall pay far all utilities serving the Pedestrian Link on its Tract. 4.5 Ownershin. Once the initial construction of the Pedestrian Link has been i completed, title to the Pedestrian Link shall vest in the Owner, its successors and assigns, of the Tract on which the Pedestrian Link is located. In other words, each Owner shall own and have title to all of the improvements constituting the Pedestrian Link on its Tract, sub'ect to the terms and conditio J ns of this Agreement and subject to the easements created herein. 4.6 Casualtv. In the event the Pedestrian Link or any part thereof is destroyed or partially destroyed by fire or any other casualty or occunence, the Pedestrian Link shall be repaired and restored by the Owner thereof as soon as possible to the extent that upon the completion of the repair ar restaration work, the Pedestrian Link, as so restored, shall be in substantially the same condition as immediately prior to the damage or destruction. Notwithstanding the foregoing sentence, in the event that either of the Facilities are destro ed or a i y p rt ally destroyed by fire or other casualty ar occurrence and the Owner thereof does not rebuild or restore such Facility as provided in subsection 7.2 (c) (the "non-rebuildin Owner" the g Pedestrian Link need not be restared or repaired and the same shall be promptly demolished and removed and the ground area of the Pedestrian Link shall be restored to a clean, slightly and landscaped condition by and at the expense of the j non-rebuilding Owner. In such event the non-rebuilding Owner shall also perform the same work (including removal of the Pedestrian Link and ground area restoration) on the Tract of the other Owner and restore the other Owner's Facility to a complete architectural unit at the non-rebuilding Owner's sole cost and expense. If insurance proceeds are insufficient to cover the expense of such repairing and restorin as re uired herein the non-rebuildin g q g Owner shall, nonetheless, be responsible for the repair and restoration and costs thereof. The Pedestrian Link Corridor Area easement shall terminate only in the event of the demolition or substantial destruction of the Conference Facility or the I HoteUWaterpark Facility, provided, however, that if an Owner intends to replace its Facility and the same is rebuilt within two years of any such demolition or destruction, the easement over the Pedestrian Link Corridor Area created herein shall remain in full force and effect. The rebuilding or restoring Owner shall pay all construction and restoration costs related to (a) disconnecting the Pedestrian Link from an Facilit t y y o be demolished, (h) supporting and securing of the Pedestrian Link durin demolit' ion and/or restoration of the g replacement Facility, (c) repair or replacement of all Pedestrian Link components damaged by the demolition of a portion of the Pedestrian Link or the damaged Facility, and d repair and connection of the Pedestrian Link to the replacement Facility. The Pedestnan Link shall be supported and maintained in good and safe condition pending connection to the replacement Facility or restoration. If construction of a replacement Facility has not been commenced within two (2) years from the date of demalition or destruction, the easement granted herein over the Pedestrian Link 1657143v2 C� L� Corridor Area shall terminate on the second anniversary of the demolition or destruction unless otherwise agreed to by the Owners. 5. Demolition and Construction 5.1 General Reauirements. Each Owner agrees that all demolition and construction activities performed by it within the Center shall be performed in compliance with all laws, rules, regulations, orders, and ordinances of the city, county, state, and federal governments, or any department or agency of any of them, affecting improvements constructed within the Center. Each Owner further agrees that neither its demolition nor its construction activities shall do any of the following: 5.1.1 Unreasonably interfere with demolition or construction work being performed on any other part of the Center. 5.1.2 Unreasonably interfere with the use, occupancy or enjoyment of any part of the remainder of the Center by any other Owner or its Permittees. 5.1.3 Cause any other Owner to be in violation of any law, rule, regulation, order or ardinance applicable to its Tract of the city, county, state, federal government, or any department or agency of any of them. 5.2 Pedestrian Link Construction. Developer shall be solely responsible far the construction of the Pedestrian Link in accordance v�ith and pursuant to the terms of the Development Agreement. However, EDA shall have the right to monitor and inspect the construction and construction methods performed on its Tract, and Developer shall use all reasonable efforts to insure that such construction does not unreasonably interfere with access to and the activities of EDA and its Permittees in the Conference Facility. Developer shall coordinate and cooperate with EDA in all construction activities on the EDA Tract to insure minimal interference and damage to the improvements on the EDA Tract. Developer shall be solely responsible for repairing and restoring any damage to the improvements located on the EDA Tract caused by or occurring during such construction. Developer warrants to EDA that (a) the Pedestrian Link will be constructed and installed in a good and workmanlike manner without material defects and in accordance with all applicable federal, state and local laws, codes and ordinances and using only all new materials and equipment, and (b) the Pedestrian Link and restated facilities and improvements to be installed andlor constructed by or under Developer will be free from material defects for a period of one year beginning 30 Y days following the issuance of a certificate of occupancy far the Pedestrian Link. If any work is found to be defective within said one year period, Developer shall correct, repair and restore such work at its sole cost and expense. Developer warrants to EDA that the construction of the Pedestrian Link shall not result in damage or injury to the improvements on the EDA tract, other than the work necessarily required far connection of the Pedestrian Link to the Conference Facility, which Conference Facility shall be restored to substantially the same condition they were in prior to the performance of said work. Notwithstanding 1657143v2 1 the provisions of Section 9 hereof to the contrary, during the construction of the Pedestrian Link, Developer (and not EDA) shall procure and maintain builder's All-Risk casualty insurance on the improvements being constructed by Developer, and otherwise maintain in force and effect the insurance required to be obtained by it as provided in the Development Agreement. 5.3 Indemnitv. Each Owner agrees to defend, indemnify and hold hartnless each other Owner from all claims, actions, proceedings and costs incurred in connection therewith (including reasonable attorneys' fees and costs of suit) resulting from any personal injury, death or property damage whatsoever occurring to any Person ar to the property of any Person arising out of or resulting from the performance of any demolition and/or construction activities performed or authorized by such indemnifying Owner, except to extent claims in respect thereto are waived or released herein. The indemnification contained in this subsection 5.3 shall not include an indemnity for any consequential damages. 6. Maintenance and Renair 6.1 General Resnonsibilitv for Maintenance. Except as may be expressly provided otherwise in this Section 6, each Owner shall repair and maintain all of the portions of the Parking Lot Area and the Pedestrian Link located on its Tract in good order, condition and repair, including capital repairs and any repairs necessitated by fire or other casualty. Such maintenance shall include keeping, and each Owner hereby covenants and agrees to keep, all of the portions of the Parking Lot Area and the Pedestrian Link located on its Tract fully illuminated each day from dusk until dawn, 7 days a week. All repairs and maintenance to be performed by an Owner pursuant to this subsection shall be performed at such Owner's sole expense, except as may be expressly provided otherwise in this Agreement. 6.2 Standards for Maintenance. The minimum standard of maintenance for the Parking Lot Area and the Pedestrian Link shall be comparable to the standard of maintenance followed in first-class retail developments of comparable size in the Minneapolis/St. Paul metropolitan area, and in any event in compliance with all applicable governmental laws, rules, regulations, orders and ordinances, and the provisions of this Agreement. The Parking Lot Area and Pedestrian Link improvements shall be repaired ar replaced with materials at least equal to the original quality of the materials being repaired or replaced. The maintenance and repair obligation far the Parking Lot Area in any event shall include but not be limited to the following: 6.2.1 Road, Drivewav and Access Areas. Mai�taining all paved surfaces and curbs in a smooth and evenly covered condition which maintenance work shall include cleaning, sweeping, restriping, repairing, resurfacing and overlays. 1657143v2 1 1 6.2.2 Debris and refuse. Periodic removal of all papers, debris, filth, refuse, ice and snow to the extent necessary to keep the Parking Lot Area in a first- class, clean and orderly condition. 6.2.3 Si�n and markers. Placing, keeping in repair, replacing and repainting any appropriate directional signs or markers. 6.2.4 Li�htin�. Operating, keeping in repair, cieaning and replacing when necessary any lighting facilities in the Paxking Lot Area. The maintenance and repair obligation for the Pedestrian Link in any event shall include but not be limited to the following: 6.2.5 Corridor. Maintaining all pedestrian ways and corridors in a smooth and evenly covered condition, which maintenance work shall include cleaning, sweeping, recarpeting, retiling and resurfacing. All corridars, doors and glass shall be periodically cleaned. 6.2.6 SiQna�e and Exits. Maintaining, repairing and replacing all directorial signs and emergency exit signage. 6.2.'1 Structure. Maintaining, repairing and replacing when necessary the Pedestrian Link, its structural components, roof, drainage facilities and access doors and windows. 6.2.8 HVAG Maintaining, repairing and replacing when necessaxy a11 heating, ventilation and air conditioning systems. 6.2.9 Li�htin� and Securitv. Maintaining, repairing and replacing when necessary all lights in the Pedestrian Link, including emergency lighting, and a11 security systems. 6.3 Pavment for Ne�lieence. Notwithstanding the provisions of subsection 61 (entitled "General Responsibility for Maintenance"), but subject to the provisions of subsection 9.4 (entitled "Waiver of Subrogation"), in the event any Parking Lot Area or the Pedestrian Link located on an Owner's Tract are damaged ar destroyed as a result of the negligence or willful misconduct by another Owner or its contractors, agents, servants, or employees, the Owner who (or whose contractors, agents, servants, or employees) caused such damage or destruction shall reimburse the Owner who owns the Tract on which the damage or destruction occurred for the reasonable cost of the repair of such damage or destruction. 6.4 General Easement Repair Provisions. In addition to any other provisions of this Agreement, any Owner entering another Owner's Tract to perform maintenance or repair pursuant to this Agreement shall comply with the following: (a) any such maintenance and repair shall be performed in such a manner as to cause as little disturbance in the use of the Tract where the repairs and maintenance are being 1657143v2 1 2 i performed as is practicable under the circumstances; (b) the Owner performing such repair and maintenance shall promptly pay all costs and expenses associated with any such repair and maintenance, subject to any provisions for reimbursement which may be expressly contained in this Agreement; (c) the Owner performing such repair and maintenance shall diligently complete such work as quickly as possible; and (d) the Owner performing such repair and maintenance shall promptly clean and restore the affected portion of the easement area to a condition equal to or better than the condition which existed prior to the commencement of such work. 7. Buildin� Improvements 7.1 Standards of Maintenance. After completion of construction, each Owner covenants and agrees to maintain and keep the building improvements, if any, located on its Tract in good condition and state of repair, in compliance with all governmental laws, rules, regulations, orders, and ordinances exercising jurisdiction thereover. 7.2 Casualtv. In the event any of the building improvements, other than the Pedestrian Link, are damaged by fire ar other casualty (whether insured or not), or if a building on a Tract is being torn down or demolished, the Owner upon whose Tract such building improvements are located immediately shall remove the debris resulting from such event and provide a sightly barrier and within a reasonable time thereafter shall either (a) repair or restore the building improvements so damaged ar demolished, or (b) erect other building improvements or improvements in such location, ar(c) demolish the damaged portion of such building improvements, remove all debris, and restore the area to an attractive condition. Such Owner shall have the option to choose which of the foregoing alternatives to perform, but such Owner shall be obligated to perform one of such alternatives. Notwithstanding the foregoing to the contrary, the Owner of the Developer Tract may not elect (c) unless such Owner shall pay to EDA all costs and expenses paid by EDA to Developer for the construction of the Pedestrian Link. If such payment is not paid to EDA, the Owner of the Developer Tract shall perform the work as described in either (a) or (b) of this subsection. 8. Develoner Parkin� Developer, for itself and its successors and assigns, agrees that the parking area contained on the Developer Tract shall contain sufficient parking spaces in arder to comply with all governmental regulations, ordinances and similar orders relating to parking without reliance on the parking spaces that may be available on the EDA Tract. 9. Insurance 9.1 Liabilitv Insurance. Each Owner shall maintain or cause to be maintained in full force and effect with respect to its Tract Commercial General Liability Insurance in the amount of at least $1,000,000 per occurrence, $2,000,000 aggregate for i 1657143v2 13 I bodily or personal injury or death and for property damage, and umbrella liability in the amount of $5,000,000. Such insurance shall include a provision for severability of interests. 9.2 Casualtv Insurance. Each Owner shall maintain or cause to be maintained in full force and effect property insurance with All-Risk coverage including but not lirnited to casualty, loss or damage by fire, lightning, windstorm, hail, collapse, explosion, riot, vandalism, civil commotion, aircraft, vehicle, smoke and other such hazards covering the Pedestrian Link on the Owner's Tract in the amount of the full replacement value thereof, and with a demolition and increased cost of construction endorsement during any reconstruction period or during modifications, alterations or changes to the Pedestrian Link (hereinafter the "Property Insurance Policy"). During any period of Pedestrian Link reconstruction, alteration or modification activity, the constructing Owner shall carry such Property Insurance Policy in Builder's Risk form or comparable coverage written on a completed value basis, and shall incluae broad form contractual liability, products/completed operations, independent contracts, broad form property damage, personal injury, and with "X' ;"C" and "U" exclusions deleted. 9.3 Indemnitv. Subject to the provisions of subsection 9.4 (entitled "Waiver of Subrogation"), each Owner ("Indemnitor") covenants and agrees to indemnify, defend and hold harmless each other Owner ("Indemnitee") from and against all claims, costs, expenses and liabiiity (including reasonable attorneys' fees and cost of suit incurred in connection with all claims) arising from or as a result of the injury to or death of any Person, or damage to the property of any Person, which shall be caused by the negligence or willful act of such Indemnitor or its contractors, agents, servants, or employees. 9.4 Waiver of Subro�ation. Notwithstanding anything to the contrary contained in this Agxeement, each Owner (the "Releasing Owner") hereby releases and waives for itself and on behalf of its insurer, any other Owner (the "Reieased Owner") from any liability for any loss ar damage to all property of such Releasing Owner a r which loss or dama e is of the t e loc ted u on an ortion of the Cente P Y P g YI� generally covered by property insurance provided under the Comprehensive Replacement Cost Form, irrespective either of any negligence on the part of the Released Owner which may have contributed to or caused such loss, or of the amount of such insurance required or actuall� carried. Each Owner agrees to use its best efforts to obtain, if needed, appropriate endorsements to its policies of I insurance with respect to the foregoing release; provided, however, that failure to obtain such endorsements shall not affect any release given pursuant to this subsection. i 9.5 General Reauirements. The insurance required by this Section shall specifically extend to contractual obli ations of the insured art arisin out of the g p Y g indemnification obligations set forth in this Agreement. Such insurance may be carried under a blanket policy or policies which includes other liabilities, I I 1657143v2 1 4 I properties and locations of such Owner. All insurance required by this Section shall be procured from financially responsible insurance companies licensed to do business in the state of Minnesota. 10. Taxes and Assessments Each Owner shall be responsible for paying all taYes and assessments relating to its Tract, the buildings and improvements located thereon, and any personal property owned or leased by such Owner in the Center. 11. Liens In the event any mechanic's lien is filed against the Tract of one Owner as a result of services performed or materials furnished for the use of another Owner, the Owner for whose benefit such services were performed or materials were furnished agrees to cause such lien to be discharged prior to entry of final judgment (after all appeals) for the foreclosure of such lien and further agrees to indemnify, defend, and hold harmless the other Owner and its Tract against liability, loss, damage, costs or expenses (including reasonable attorneys' fees and cost of suit) on account of such claim of lien. Upon request of the Owner whose Tract is subject to such lien, the Owner for whose benefit such services were performed or materials were furnished agrees to cause such lien to be released and discharged of record within 14 days after the filing of such lien, either by paying the indebtedness which gave rise to such lien or by posting bond ar other security as shall be required by law to obtain such release and discharge; if the Owner for whose benefit such services were performed or materials were furnished fails to obtain such release and discharge within such 14 day period, the Owner of the Tract against which such lien was recorded may cause such lien to be released and discharged of record, either by paying the indebtedness which gave rise to such lien or by posting bond or other security as shall be required by law to obtain such release and discharge, in which case the Owner for whose benefit such services were performed or materials were furnished shall immediately upon demand reimburse the Owner of such Tract for all costs and expenses incurred in connection with obtaining such release and discharge. Nothing in this Agreement shall prevent an Owner for whose benefit such services were performed or materials were furnished from contesting the validity of such lien in any manner such Owner chooses so long as such contest is pursued with reasonable diligence. In the event such contest is determined adversely (allowing for appeal to the highest appellate court), such Owner shall promptly pay in full the required amount, together with any interest, penalties, costs, or other charges necessary to release such lien. Notwithstanding anything herein to the contrary, the cost of the initial construction of the Pedestrian Link, and any liens resulting therefrom, shall be paid as provided in the Development Agreement. Provided that EDA fulfills its obligations to pay Developer for certain costs of constructing the Pedestrian Link as provided in the Development Agreement, Developer shall indemnify, defend and hold harmless EDA and the EDA Tract from all mechanics' liens, claims, actions, proceedings and costs incurred in connection therewith (including reasonable attorneys' fees and costs of suit) resulting from the construction and installation of the Pedestrian Link, and any warranty wark performed by or under Developer, on the EDA Tract. 1657143v2 1 5 12. Consents Unless expressly provided otherwise in this Agreement, whenever consent is required in this Agreement, such consent shall not be unreasonably withheld or delayed. Unless provision is made far a specific time period, consent shall be given or withheld within 30 days of the receipt of the request far consent. If a notice that consent will be refused is not given within the required time period, the requested Owner shall be deemed to have given its consent. If an Owner shall refuse consent, the reasons therefor shall be stated. Except with respect to a consent given by lapse of time, all consents and refusals to consent shall be in writing. Any right to consent contained in this Agreernent shall be held by the Owner owning the Tract to which such right relates. Any purchaser of any Tract in the Center shall automaticall ac uire an ri t to consent at such time as such Y Y q purchaser becomes an Owner, unless the selling Owner (a) conveys less than all of its ownership interest in the Center and (b) provides in writing, either in the deed conveying a portion of its ownership interest in the Center ar in another agreement executed by the selling Owner and recorded in the Hennepin County Registrar of Title's office prior to or simultaneously with such deed, that such selling Owner retains the right ar rights of consent described in such instrument. Until a purchaser becomes an Owner, and only to the extent the selling Owner does not so retain any right to consent, all rights to consent associated with such Tract shall remain with the selling Own.er and its heirs, successors and assigns with respect to the non-conveyed portion of the Tract. 13. Condemnation In the event any portion of the Center shall be condemned, the award shall be paid to the Owner owning the land or the improvement taken, except that (a) if the taking includes improvements belonging to more than one Owner, such as utility lines, the portion of the award allocable thereto shall be used to relocate, replace or restare such jointly owned improvements to a useful condition, and (b) if the taking includes easement rights which are intended to extend beyond the term of the Agreement, the portion of the award allocable to each such easement right shall be paid to the respective grantee of such easement. In addition to the foregoing, if a separate claim can be filed for the taking of any c�ther property interest existing pursuant to this Agreement which does not reduce or diminish the amount paid to the Owner owning the land or the improvement taken, then i the owner of such other property interest shall have the right to seek an award for the taking of such interest. 14. Default u he im within which an Owner to this A eement is re uired 14.1 Force Maie re. T t e y 9 to perform any act shall be extended to the extent that performance of such act is delayed by Force Majeure, but only if such delay was beyond that Owner's reasonable control and was not caused by its fault or negligence. "Force Majeure" shall mean acts of god, fire, abnormal weather, explosion, riot, war, labor disputes, governmental restrictions, inability to obtain necessary materials, or any other cause beyond such Owner's reasonable control. If a delay of performance occurs and such delay is excusable under this provision, the period for 1657143v2 1 6 I �J performance shall be extended for a time equal to the time lost because of the Force Majeure, but only if the Owner entitled to such extension give, prompt notice to all other Owners of the occurrence causing the dela and if the Owner so Y excused acts in good faith and uses due diligence to perform. The inability to obtain financing or lack of money shall not constitute Force Majeure. 14.2 Notice• Cure. If any Owner fails to comply with any provision of this Agreement (the "Defaulting Owner"), then any other Owner (the "Non-Defaulting Owner") may upon 30 days' prior written notice to the Defaulting Owner, proceed to cure the default (and shall have a license to do so) by the payment of money or performance of some other action for the account of the Defaulting Owner. The foregoing right to cure shall not be exercised if within the 30 day notice period (a) the Defaulting Owner cures the default, ar(b) if the default is curable, but cannot reasonably be cured within that time period, the Defaulting Owner begins to cure such default within such time period and diligently pursues such cure to completion. The 30 day notice period shall not be required if, using reasonable judgment, the Non-Defaulting Owner deems that an emergency exists which requires immediate attention. In the event of such an emergency, the Non- Defaulting Owner shall give whatever notice to the Defaulting Owner as is reasonable under the circumstances. The Defaulting Owner hereby grants to the Non-Defaulting Owner a nonexclusive easement over, across and under any and all parts of the Defaulting Owner's Tract for all purposes reasonably necessary to enable the Non-Defaulting Owner (or its agents, contractors or subcontractors) to perform any of #he terms, provisions, covenants or conditions of this Agreement that the Defaulting Owner is obligated to perforrn but has failed to perform after notice and the opportunity to cure pursuant to this subsection. 14.3 Reimbursement of Costs to Cure: Lien. Within 10 days after written demand (including providing copies of invoices reflectin costs the Defaultin g Owner shall reimburse the Non-Defaulting Owner for any amount reasonably spent by the Non-Defaulting Owner to cure the default, together with interest on such amount. The Non-Defaulting Owner shall have a lien upon the Defaulting Owner's right, title, and interest in and to any portion of the Defaulting Owner's Tract to secure payment of all amounts due to the Non-Defaulting Owner under this subsection. The Non-Defaulting Owner shall have the right, but not the obligation, to record its lien, but at all times its lien pursuant to this subsection shall be subject and subordinate to (a) the lien of any mortgage or deed of trust held by any institutional lender, or any extension, renewal, modification ar refinancing thereof, on the Defaulting Owner's Tract; (b) the leasehold estate created by any lease of all or any part of the Defaulting Owner's Tract; (c) any other lien of recard against the Defaulting Owner's Tract as of the date that the Non-Defaulting Owner's lien is recorded. The Defaulting Owner shall execute such instruments and documents as the Non-Defaulting Owner may reasonably request to permit the recordation of such lien. The Non-Defaulting Owner shall have the right to foreclose such lien in the manner provided by laws of the State of Minnesota governing mechanics liens. 1657143v2 1 7 A 7 14.4 Estot�,�el. Each Owner shall, within 15 days after written request from another Owner (but not more often than twice in any 12 month period), execute and deliver to the requesting party an estoppel letter certifying whether or not the certifying Owner has filed any liens, as provided in subsection 14.3, against any Tract, and whether ar not any other Owner is delinquent in any payments required to be made to the certifying Owner pursuant to this Agreement. 14.5 Interest. Wherever and as often as one Owner shall not have paid any sum payable hereunder to another Owner within five days of the due date, such delinquent Owner shall pay interest on such amount from the due date, through and including the date such payment is received by the Owner entitled thereto, at the lesser of the following: (a) the highest rate permitted by law to be paid on such type of obligation by the Owner obligated to make such payment; or (b) three percent per annum in excess of the interest rate from time to time publicly announced by U.S. Bank National Association ("U.S. Bank"), a national banking association having its main offices in Minneapolis, Minnesota, or its successor, as its reference rate (the "Reference Rate"), even though U.S. Bank, or its successor, may lend funds to its customers at interest rates that are at, above, or below the Reference Rate. 14.6 Minimization of Dama�es. In all situations arising out of this Agreement, all Owners shall attempt to avoid and minimize the damages resulting from the conduct of any other Owner. Each Owner shall take all reasonable measures to effectuate the provisions of this Agreement. 14.7 A�reement Shall Continue Notwithstanding Breach. It is expressly agreed that no breach of this Agreement shall (a) entitle any Owner to cancel, rescind, or otherwise terminate this Agreement, or (b) defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value as to any part of the Center; however, such limitation shall not affect in any manner any other rights or remedies which an Owner may have under this Agreement by reason of any such breach. 1 S. Notices All notices given under this Agreement shall be in writing and shall be sent postage prepaid by either (a) United States certified mail, return receipt requested, or (b) for delivery on the next business day with a nationally-recognized express courier. All such notices shall be sent to the following addresses, until such addresses are changed by 30 days' notice: To EDA: Economic Development Authority of Brooklyn Center 6301 Shingle Creek Parl�way Brooklyn Center, Minnesota 55430-2199 Attn: Executive Director 1657143v2 1 g f r To Developer: Brooklyn Hotel Partners, LLC Attn: Notices shall be deemed given as of the date such notice is postmarked, if sent by certified mail, or is placed with an express courier, if sent by express courier. If the last day for giving any notice or taking any action required or permitted under this Agreement would otherwise fall on a Saturday, Sunday, or legal holiday, that last day shall be postponed until the next legal business day. 16. Miscellaneous 16.1 Liabilitv Limitation. Notwithstanding any provisions of this Agreement to the contrary, including without limitation the indemnifications and agreements described in subsections 5.3, 6.3 and 9.3, and the requirements for insurance as described in Section 9, the liability of the EDA under this Agreement shall be limited as provided in Chapter 466 of Minnesota Statutes in effect from time to time, and nothing contained in this Agreement shall be deemed to constitute a waiver of such limitations or an agreement by the EDA to its increase or amend its limited liability as described in such statutes. 16.2 Confirmation of Easements. All easements granted under this Agreement shall exist by virtue of this Agreement, without the necessity of confirmation by any other document. Upon the request of any Owner, each other Owner will sign and acknowledge a document memorializing the existence (including the legal description, location and any conditions), or the termination (in whole or in part), or the release (in whole or in part), as the case may be and to the extent applicable, of any easement. 16.3 Ne�ation of Partnership. None of the terms or provisions of this Agreement shall be deemed to create a partnership between or among the Owners in their respective businesses or otherwise, nor shall it cause them to be considered joint venturers or members of any joint enterprise. Each Owner shall be considered a separate Owner, and no Owner shall have the right to act as an agent for another Owner, unless expressly authorized to do so in this Agreement or by separate written instrument signed by the Owner to be charged. 16.4 Not a Public Dedication. Nothing contained in this Agreement shall be deemed to be a gift or dedication of any portion of the Center, or of any Tract, or of any portion of the Center or any Tract, to the general public or for any public use or purpose whatsoever. 16.5 Entire A�reement: Enforceabilitv. This Agreement, including any Recitals and any attached Exhibits, all of which are made a part of this Agreement, and the Development Agreement contains the entire agreement of the Owners concerning this subject matter. This Agreement should be read carefully because only those 1657143v2 1 9 terms in writing in this Agreement are enforceable. No other terms or oral promises which are not in this Agreement may be legally enforced, and no promises, projections, inducements ar representations made befare the Execution Date will change the terms of this Agreement or be binding on any Owner. No promises or other terms shall be implied in this Agreement. If there is a conflict between the terms of this Agreement and the Development Agreement, the terms of the Agreement will control. 16.6 Amendments. Except as provided otherwise in this Section, this Agreement may only be amended by a written agreement signed by all of the then current Owners, except that a provision of this Agreement which only affects specific Tracts may be amended by a written agreement signed by all of the then current Owners of the affected Tracts. Any amendment of this Agreement shall be effective only when recorded in the county and state where the Center is located. No consent to the amendment of this Agreement shall ever be required of any Occupant ar Person other than the Owners whose consent is required pursuant to the provisions of this Section, nor shall any Occupant or Person other than the Owners whose consent is required pursuant to the provisions of this Section have any right to enforce any of the provisions of this Agreement. 16.7 Bindin� Effect: No Third Owner Beneficiaries. This Agreement shall both bind and benefit the parties to this Agreement and their respective heirs, personal representatives, successors and assigns who become Owners. The Owners do not intend that there be any third party or other beneficiaries of this Agreement. The easements, covenants, agreements, conditions, terms, obligations, limitations and undertakings in this Agreement shall be construed as covenants running with the land. This Agreement is not intended to supersede, modify, amend, or otherwise change the provisions of any prior instrument affecting the Center. 16.8 Waivers: Consents. An Owner shall not be deemed to have made a waiver or consent under this Agreement unless it does so in writing, and the mere failure of an Owner to act to enforce any provision of this Agreement shall not be considered a waiver or consent and shall not prevent that Owner from enforcing any provision of this Agreement in the future. Any waiver or consent under this Agreement shall apply only to the matter expressly waived or consented to, and shall not be deemed to be a waiver of ar consent to any subsequent breach or of any other provision of this Agreement. 16.9 Time of the Essence. Time is of the essence with respect to all matters provided in This Agreement. 16.10 Severabilitv. The invalidity ar unenforceability of one provision of this Agreement will not affect the validity or enforceability of the other provisions. 16.11 Captions. The section numbers and captions axe inserted only as a matter of convenience, and do not in any way define, limit, or describe the scope or intent of this Agreement. Any references in this Agreement to a Section or subsection I 1657143v2 2� i r shall refer to such Section ar subsection of this Agreement, unless expressly provided otherwise. 16.12 Interqretation of "includine" and "dav". Wherever the word "including" is used in this Agreement, or in any recital or exhibit to this Agreement, it shall mean "including without limitation." Wherever the word "day[s]" is used in this Agreement, or in any recital ar exhibit to this Agreement, and the word "business" does not appear immediately before such word, such word shall mean "calendar day[s)." 16.13 Counteroarts. This Agreement may be executed in several counterparts each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. 17. No Offer The submission of this Agreement far examination and negotiation does nat constitute an offer to enter into an agreement, and this Agreement shall not be binding on any party until it is executed and delivered by each party to this Agreement. EDA and Developer have signed this Agreement below as of the Execution Date. 1657143v2 2 1 i EDA: ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER By: Its: And By: Its: 1657143v2 22 DEVELOPER: BROOKLYN HOTEL PARTNERS, LLC By: Its: 1657143v2 23 ACKNOWLEDGEMENTS STATE OF MINNESOTA )ss. COUNTY OF HENNEPIN This instrument was acknowledged before me on 200 by ,the and ,the of the Economic Development Authority of Brooklyn Center, a Minnesota public body corparate and politic, on behalf of the body. Notary Public STATE OF MINNESOTA )ss. COUNTY OF HENNEPIN This instrument was acknowledged before me on 200_, by the of Brooklyn Hotel Partners, LLC, a Minnesota limited liability company, on behalf of the company. Notary Public My Commission Expires: This Instrument was Dxafted By: Briggs and Morgan, P.A. 332 Minnesota Street W2200 First National Bank Building Saint Paul, MN 55101 1657143v2 24 r Exhibit A (Site Plan) 1657143v2 f` r> Exhibit B (Parking Lot Area) 1657143v2 t Exhibit C (Pedestrian Link Corridor Area) 1657143v2 'I�., FILE No.348 47i01 13?18 ID�Shenehon Company FAX�612 344 1635 PAGE 2 DEVELOPMENT AG REEMENT LETTER OF INTENT JUNE 24, 2UQ4 If the ger�ez'al terms and condit�ons set forth below are accepted by t}�e City of Brooklyn Center and Tom Grossman through e�ecutian of a copy of this letter, it is understood that the terms outlined in this letter will be xncorporated into a definitive DeveIopment Agz to be executed by the parties. This is a Letter of Intent only. PROpERTY To be Acquixed for New Car Dealcrship and Pr.oposed A.cquisrtion Prices: Schmitt Music at $2,525,000.00 �Iote1 Land at $425,000.00 �oz�tez' Sal�r�tion Army property at $1.600.00�.00 Tptal: $4_55�_OOd.00 PURCHASER Brookdale Ford, Inc. and/or its assigns DFVF,L4�MENT AUTHORITY City af Broaklyn Center MOVING ALLOW ANCE PAYME NT I5 40,OQp_pp (will be credited back to Developnaez�t Authozaty on a dollar-for-dollar basis if Acquisition Prices are J.ess) TERMS Cash payment upon purchase of three parcels to be paid on a weighted basis C�?NTINGENC"i' �iy obligation on the part of Purchaser to purchase the Property and any obligation on the part of bevclopment Authority to pay the moving allowance would be contingent upon (and the Develop�nent A eement a' would so provide) each of the following being satisficd: a. Tb.e Px�operty shal� be zoned to permit new car dea�ership use, and �urchaser shalI have obtained all licenses, .Foxc� N�otoz Coxzapan a roval and ermits necessa for it to operate the facility thercon; y p p b• The Property shall havc received such soil tests, inspectio�i.s, rEViews, surveys, easer�aents inspcctians, examinations, environrnent.al �.ssessments anci any otf�er investigation as Purchaser deen�s z�ecessary, with the result af each bein� satisfactory to Purchascr; Title to the Property bein� aeceptable to Purehaser; 1 FILE No.348 47i01 '04 13.18 ID=Shenehon Company FAX�612 344 16�5 PAGE 3 d. l7evclopment Autk�o�ity �wi�l condemn the former Salvation Army property if it ca�zaot be reasonably acquired by Purchaser. Pturchaser shall indemnify Development Authority for �ondemnatiot� costs, which ix�cXude legal fees azad acquisition costs provided good title to t�ae same is delivered to Ptuchaser and provided the Property is free of hazardous substances; e. Purchaser a�rees to relocate from current locat�on az�.d not make any ciaims for relocation or loss of busincss against Dcvclopment Authority; f. Aevelopment �greement plans to cond�mn the current leased premises ("Curtent Leased Premises") �zx�mediately aftez paying Purchaser the relocation payment and the Purchaser must cooperate with this effozt; g. Purchaser agrees to assist Dcvclopmcnt Authority with the acquisition of the Current Leased premises. If Current Leased Premises can be acquired for less than $S,OOO,OOQ.00, the Purehascr will receive one-half of the fzrst $500,000.00 of savings below the maximuiri acquisition cost o£ $S,Q04,000.00 but only to t�ae extent that Purcliaser's acquisition costs o;F the Property e�ceed $4,SOO,OOOAO plus legal fees and demolition costs; 11• If Deveaapznent Authority owns the curr�nt Property before �urchaser can construct the new facility, Purchaser wzll pa.y current contract rent to Development Authority for a new term reasonably long enough Eo a11ow for the irnmediat� construction of the new facility. GOOD FAI�'� NEGOTIATIONS Poz' a pez�ad af sixty (60} days from tl�e date of acceptance of tk��s Lettex o� �tent, Purchaser and bevelopment Authority shall negotiate in good faith with a view to entering into a mutually acceptab�e, k�inding and enforceable Development Agreemerat eonsisten�t witk� the terms hereof and �ontaining mutuall� agreed representations, warranties; anci conditions appropriate for the Agreement. In tk�e event an �lgreement is not entered into by the parties within said sixty :�61�) day period, either p�.rty may terminate this Letter o� Intent by delivering to the otl�er a written notiee of termin�tion. This Letter of Intent is non-binding. No agreement shall exist until a complete Development �►greernent is cxecuted by both.parties, By�� Pu�iaser Date; `�_/o y' i By Date: beve�opme�at Authorrty u339596 v! 2 Office of the City Clerk City of Brooklyn Center A Millennium Community MEMORANDUM TO: Michael J. McCauley, City Manager FROM: Sharon Knutson, City Clerk DATE: July l, 2004 SUBJECT: Domestic Partners and Family Memberships to Community Centers Attached is a printout of the e-mail I sent to the LMC (League of Minnesota Cities) clerk/administrators listserv to survey regarding domestic partners and memberships to community/activity centers. The survey prompted several phone calls from metro City Clerks inquiring if I had received any responses from other cities, but none of the cities surveyed responded that they offer such memberships ar indicated that their city had discussed this issue. LMC Research Information Services Manager Jeanneatte Bach indicated that she does not have information regarding this issue in the League's research files either. Attachment 6301 Shingle Creeh Parkway Recreation and Community Center Phone TDD Number Brooklyn Center, MN 5543Q-2199 (763) 569-3400 City Hall TDD Number (763) 569-3300 FAX (763) 569-3434 FAX (763) 569-3494 ww w. cityofbrooklyncenter. org n,� W� i Sharon Knutson Domestic��Partners and Family Memberships to Community Centers y� Page 1 a �{e' From: Sharon Knutson To: "Clerk Administrators" <clerk-admins@listserv.lmnc.org> Date: 6/17/04 12:03PM Subject: Domestic Partners and Family Memberships to Community Centers The Brooklyn Center City Council has received a request to allow the "family membership" at the City's Community Center to include domestic partners. The residents' basis is that they are not allowed to get married to fulfill the requirement to receive the family membership, but they consider themsefves married/family. Does any other city have memberships to City community/activity centers for domestic partners/same sex couples? Our City Attomey's legal opinion is that the City can create a"domestic partner" fee category, but it cannot allow the "family membership" to extend to domestic partners as it would be contrary to Minnesota law with respect to the legal definition of "family" or "marriage". Thank you. Sharon Knutson City Clerk City of Brooklyn Center (763) 569-3306 (763) 569-3494 fax sknutson@ci.brooklyn-center. mn.us