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HomeMy WebLinkAbout2004 08-23 CCP Regular Session Public Copy AGENDA CITY COUNCIL STUDY SESSION August 23, 2004 6:00 P.M. City Council Chambers 1. City Council Discussion of Agenda Items and Questions 2. Miscellaneous 3 Adj ourn CITY COUNCIL MEETING City of Brooklyn Center August 23, 2004 AGENDA 1. 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 Report 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. 1. August 9, 2004 Study Session 2. August 9, 2004 Regular Session 3. August 9, 2004 Wark Session 4. �w+atlC GM b. Licenses c. Approval of Site Performance Guarantee Reduction for Global Hennepin County Properties, LLC, 2000 Freeway Boulevard CITY COUNCIL AGENDA -2- August 23, 2004 d. Resolution Authorizing Approval of the Issuance of a Premises Permit for Brooklyn Center Fire Relief Association to Conduct Lawful Gambling at Coyote Grille, 2101 Freeway Boulevard, Brooklyn Center, Minnesota e. Approval of Accepting Insurance Settlement and Authorizing Property Damage Release of Metro Connections Inc. and Acuity, a Mutual Insurance Company, in Reference of Damage to Arch at the Earle Browne Heritage Center Resolution Declaring a Public Nuisance and Ordering the Removal of Diseased Trees g. Resolution Approving Change OrderNo. l, Improvement ProjectNos. 2004-01, 02, 03, and 04, Contract 2004-A, Northport Area Neighborhood Street and Utility Improvements h. Resolution Amending Special Assessment Levy Roll Nos.15997,15998,15999, and 16000 to Provide for the Deferment of Special Assessments i. Resolution Providing for Hearing on Proposed Special Assessments for Delinquent Public Utility Service Accounts 8. Council Consideration Items a. Resolution Expressing Appreciation for the Donation of the Brooklyn Center Fire Relief Association in Support of the Annual Halloween Party •Requested Council Action: -Motion to adopt resolution. b. Resolution Expressing Appreciation to Marshall Field's for Their Approval of a Grant Awarding the Brooklyn Center Police Department $2,000 for the Purchase of a Surveillance Camera and Accessories •Requested Council Action: -Motion to adopt resolution. c. Proclamation Declaring September 12-18, 2004, To Be Fiscal and Support Services Week •Requested Council Action: -Motion to adopt proclamation. d. Mayoral Appointment to Financial Commission •Requested Council Action: -Motion to approve Mayaral nomination. CITY COUNCIL AGENDA -3- August 23, 2004 e. Resolution Authorizing Execution of a Joint Powers Agreement with the City of Rogers for Cooperative Purchase of Athletic Field Lighting at Grandview Park •Requested Council Action: -Motion to adopt resolution. f. City Ordinance Chapter 35 Flood Plain Management L Interim Emergency Ordinance Regarding Development in the City's Floodplain Area Establishing a Moratorium to Enact Required Official Controls 2. An Ordinance Amending Chapter 3 5 of the City Ordinances Regarding Flood Plain Management •Requested Council Action: -Motion to adopt interim emergency ordinance. -Motion to approve first reading and set second reading and public hearing on September 13, 2004. An Ordinance Amendin Section 1-104 of the Ci Code Relatin to the Licensin of g• g tY g g Commercial Kennels; Amending Sections 12-901 and 12-903 of the City Code Relating to the Licensing of Rental Housing; Adding Section 23-006.05 to the City Code and Amending Sections 23-610, 23-661, 23-1204, and 23-2309 of the City Code Relating to General Licensing Regulations and the Payment of Property Taxes •Requested Council Action: -Motion to approve first reading and set second reading and public hearing on September 13, 2004. h. Closed Session to Discuss Litigation Regarding Potential Appeal of Commissioner's Award in Riverbank Stabilization Action with Attorneys 9. Adjournment August 19, 2Q04 Myrna Kragness, Mayor City of Brooklyn Center 6301 Shingle Creek Parkway Brooklyn Center, MN 55430 Dear Mayor, A couple of weeks ago sent a(efter to you on E�half of the board of directors of the Brooktyn Center Taxpayers Association. We had a board meeting last evening and the board would like an official response. It's my understanding that you have had some verbal discussion with Don Poss, however, the board would like something official. It is my understanding that from the discussion with Don Poss, the bottom line is that our request is rejected, presumably upon the advice of the city manager. We obviously are disappointed as we are convinced we are facing a very serious problem in Brooklyn Center. Apparen�y the City does not see it that way. In fact, in the past few days I became aware of three businesses moving out of Brooklyn Center. At least one of them contacted City Hall to ascertain whether there was some facilities in Brooklyn Center and was advised that there are no available facilities in Brooklyn Center. If the City is saying that there is nothing available and our concern is that there is growing vacancies, one of us is not tuned to the same frequency! Thank you for your an6cipated written response to the board. Sincerel Dean A. Nyquist PS We have set an endorsing meeting for September 22nd, right after the primary. Our next fmard meeting is September 15th. City Council Agenda Item No. 7a MINUTES OF THE PROCEEDINGS OF THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER IN THE COUNTY OF HENNEPIN AND THE STATE OF MINNESOTA STUDY SESSION CITY HALL COUNCIL CHAMBERS AUGUST 9, 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 6:00 p.m. ROLL CALL Mayor Myrna Kragness, Councilmembers Kathleen Carmody, Kay Lasman, and Bob Peppe. Councilmember Diane Niesen was absent and unexcused. Also present were City Manager Michael McCauley, Assistant City Manager/Director of Operations Curt Boganey, Director of Public Works/City Engineer Todd Blomstrom, and Deputy City Clerk Maria Rosenbaum. CITY COUNCIL DISCUSSION OF AGENDA ITEMS AND QUESTIONS Councilmember Carmody informed that she had an amendment to the July 26, 2004, Regular Session minutes. Pa�e 7 Councilmember Carmody informed that she is not highly in favor of raising the filing fees; however, she believes it is appropriate of the Charter Commission to review this request. It was the consensus of the Council to approve the minutes with that amendment. DISCUSSION OF WORK SESSION AGENDA ITEMS AS TIME PERMITS SMOHING BANS Mayor Kragness asked that this item be placed on a Work Session agenda to start the discussion of whether or not the City Council would like to adopt a smoking ban in the City of Brooklyn Center. She informed she had received an e-mail and several phone calls regarding this issue. Councilmember Lasman expressed that she would be in favor indicating that a County or Statewide debate and solution is more appropriate than a patchwork of individual city ordinances, or soliciting input from residents and businesses on the support for or opposition to a smoking ban before making any proposals. Mayor Kragness questioned how to accomplish getting input and expressed that she believes input is needed from both residents and businesses. 08/09/04 1 Councilmember Peppe expressed that he believes that if businesses wanted no smoking they would have made an effort to have already established a no smoking atmosphere; and that it would be important to solicit input from the community regarding smoking in City parks. Councilmember Carmody expressed that she would be in favor of a smoking ban. City Manager Michael McCauley discussed that a letter could be written to restaurants and bars that informs the City Council is interested in receiving input on whether or not to consider a smoking ban in Brooklyn Center. An article could also be published in the next City Watch Newsletter with a target date of January or February 2005. It was the consensus of the Council to have something drafted and brought back to the Council for consideration. MISCELLANEOUS City Manager Michael McCauley discussed a recent e-mail virus and to delete any e-mail that contains messages regarding something they ordered that is uiiknown to them. Councilmember Lasman informed that she had received information from a resident during National Night Out with regard to paintball actions taking place on Durnam Island in Brooklyn Park. The resident expressed concern about the complaint not being addressed by the City of Brooklyn Park. Councilmember Lasman questioned if the Council would be interested in sending a letter to the Brooklyn Park City Council regarding this issue. She expressed that she believes it is the responsibility of the Brooklyn Center City Council to help with this complaint since Brooklyn Center residents are affected. It was the consensus of the Council to have a letter drafted for the Mayor's signature. Councilmember Lasman informed that there would be a Neighborhood Watch event on September 14, 2004, on Woodbine Lane since they were not able to have one on August 3, 2004. She asked if one other Council Member might be able to attend. Councilmember Carmody informed that she would be able to attend the event. Councilmember Lasman asked that copies of City ordinances that are helpful to newcomers be copied and provided for that evening. Council discussed a letter received with concern about a property on Emerson Avenue North. ADJOURNMENT A motion by Councilmember Lasman, seconded by Councilmember Carmody to adj ourn the Study Session at 6:37 p.m. Motion passed unanimously. City Clerk Mayar 08/09/04 -2- 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 AUGUST 9, 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, Director of Public Warks/City Engineer Todd Blomstrom, City Attorney Charlie LeFevere, and Deputy City Clerk Maria Rosenbaum. No one wished to address the CounciL 2. INVOCATION Patt Rogich, St. Alphonsus Church, offered the Invocation. 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 7:03 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, Public Warks Director/City Engineer Todd Blomstrom, Police Chief Scott Bechthold, City Attorney Charlie LeFevere, and Deputy City Clerk Maria Rosenbaum. 5. PLEDGE OF ALLEGIANCE The Pledge of Allegiance was recited. 08/09/04 -1- DRAFT 6. COUNCIL REPORT e Councilmember Carhlody reported that she attended the National Night Out Kickoff Event on August 2, 2004; National Night Out on August 3, 2004; and the League of Minnesota Cities Regional meeting. Councilmember Carmody discussed that she was participating in the Walk A Mile event and introduced Anne Nelson Fisher, a Councilmember from the City of Brainerd. She shared that her and Councilmember Nelson Fisher had visited some homes in Brooklyn Center, the Earle Brown Heritage Center, and the Community Center. Councilmember Carmody informed that she would be making a trip to Brainerd to visit their community in the near future. Councilmember Lasman reported that she attended the National Night Out Kickoff Event on August 2, 2004, and encouraged any interested residents in getting a group together for National Night Out to do so. Councilmember Niesen reported that she received a compliment from a neighbor with regards to the dust control from the construction on East Twin Lake Boulevard. Councilmember Niesen wished to express thanks to City staff for their wark on keeping the dust from the construction on East Twin Lake Boulevard to a minimum. Councilmember Niesen reported that she participated in National Night 0ut on August 3, 2004. Mayor Kragness reported that she participated in National Night Out on August 3, 2004, by riding along with the Police Chief; and discussed that the City Council had their annual Council Retreat on August 7, 2004, to discuss their future goals. 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 amendment to the July 26, 2004, regular session meeting minutes: Motion passed unanimously. 7a. APPROVAL OF MINUTES A motion by Councilmember Lasman, seconded by Councilmember Carmody to approve the July 26, 2004, study, regular, and work session meeting minutes with the following amendment: Pa�e 7 Councilmernber Carmody informed that she is not highly in favor of raising the filing fees; however, she believes it is appropriate of the Charter Commission to review this request. Motion passed unanimously. 08l09/04 -2- DRAFT 7b. LICENSES A motion by Councilmember Lasman, seconded by Councilmember Cannody to approve the following list of licenses. Motion passed unanimously. COMMERCIAL KENNEL Brooklyn Pet Hospital 4900 France Avenue North Cutting Edge Pet Care Inc. 4900 France Avenue North MECHANICAL Grondahl Mechanical Inc. 6135 Kellogg Avenue South, Minneapolis Midwest Maintenance and Mechanical 710 Pennsylvania Avenue South, Minneapolis United Heating A/C Inc. 1295 Kachamore Road, Medina RENTAL (No calls for service in last 12 months for all pronertiesl RenewaL• 5329 33 Brooklyn Boulevard Amy Lewis Initial: 5431 Camden Avenue North Robert Lehse 3807 Janet Lane Mai-Thuong Nguyen 4110 Lakebreeze Avenue North Nhia Her 6007 Lyndale Avenue North Erroll Edwards 6936 Newton Avenue North Nao lee TOBACCO RELATED PRODUCT Casa Tobacco 6014 Shingle Creek Parkway 7c• RESOLUTION ESTABLISHING TAXICAB LICENSE FEES AND PAWNBROKER LICENSE FEES RESOLUTION NO. 2004-101 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION ESTABLISHING TAXICAB LICENSE FEES AND PAWNBROKER LICENSE FEES The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Carmody. Motion passed unanimously. 7d. RESOLUTION DECLARING A PUBLIC NUISANCE AND ORDERING THE REMOVAL OF DISEASED TREES 08/09/04 -3- DRAFT RESOLUTION NO. 2004-102 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION DECLA.RING A PUBLIC NtJISANCE 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. RESOLUTION APPOINTING ELECTION JIJDGES RESOLUTION NO. 2004-103 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION APPOlNT1NG ELECTION NDGES The motion for the ado tion of the fore oin resolution was dul seconded b Councilmember P g g Y Y Carmody. Motion passed unanimously. 7f. APFROVAL OF SITE PERFORMANCE GUARANTEE REDUCTION FOR TWIN LAKES III, LLC, 3900 LAKEBREEZE AVENUE NORTH A motion by Councilmember Lasman, seconded by Councilmember Carmody to approve site performance guarantee reduction for Twin Lakes III, LLC, 3900 Lakebreeze Avenue North. Motion passed unanimously. 7g. RESOLUTION AUTHORIZING FUND TRANSFERS FOR 2003 STREET RECONSTRUCTION PROJECT RESOLUTION NO. 2004-104 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION AUTHORIZING FUND TRANSFERS FOR 2003 STREET RECONSTRUCTION PROJECT The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Carmody. Motion passed unanimously. 08/09/04 -4- DRAFT 8. COUNCIL CONSIDERATION ITEMS 8a. RESOLUTION EXPRESSING RECOGNITION OF AND APPRECIATION FOR THE DEDICATED PUBLIC SERVICE OF THE EARLE BROWN DAYS COMMITTEE Mayor Kragness read the resolution expressing recognition of and appreciation for the dedicated public service of the Earle Brown Days Committee. RESOLUTION NO. 2004-105 Councilmember Lasman introduced the following resolution and moved its adoption with great appreciation: RESOLUTION EXPRESSING RECOGNITION OF AND APPRECIATION FOR THE DEDICATED PUBLIC SERVICE OF THE EARLE BROWN DAYS COMMITTEE The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Niesen. Motion passed unanimously. 8b. RESOLUTION EXPRESSING APPRECIATION FOR THE DONATION OF THE BROOKLYN CENTER LIONESS CLUB IN SUPPORT OF THE ANNUAL HALLOWEEN PARTY Mayor Kragness read the resolution expressing appreciation for the donation of $100 from the Brooklyn Center Lioness Club in support of the annual Halloween Party. RESOLUTION NO. 2004-106 Councilmember Lasman introduced the following resolution and moved its adoption with great appreciation: RESOLUTION EXPRESSING APPRECIATION FOR THE DONATION OF THE BROOKLYN CENTER LIONESS CLUB IN SUPPORT OF THE ANNUAL HALLOWEEN PARTY The motion for the adoption of the faregoing resolution was duly seconded by Councilmember Peppe. Motion passed unanimously. Sc. RESOLUTION APPROVING AMENDMENT TO TIiE FIRE DEPARTMENT RELIEF ASSOCIATION BY-LAWS City Manager Michael McCauley discussed that the Brooklyn Center Fire Relief Association had requested an increase of $6,000 in the lump sum benefit. 08/09/04 -5- DRAFT Subsequent to the Work Session discussion on July 26, 2004, the Fire Relief Association requested that the increase in pension be made effective as of January 1, 2004, instead of prospective to January l, 2005. Based on the actuarial analysis that would increase the benefit in the current year he would see no reason not to make the lump sum benefit change effective this year, rather than next. He informed that if the Council were to approve the resolution it does direct the Fire Relief Association to review in August 2005 and encourages them to begin implementation of Springsted's contingency cash target amount. RESOLUTION NO. 2004-107 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION APPROVING AMENDMENT TO THE FIRE DEPARTMENT RELIEF ASSOCIATION BY-LAWS The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Carmody. Councilmember Niesen expressed that she believes this approval would show great appreciation to the firefighters. Councilmember Carmody expressed that she believes the City is lucky to have volunteer firefighters. Motion passed unanimously. 8d. REQUEST OF COUNCILMEMBER KAY LASMAN FOR RECONSIDERATION OF RESOLUTION NO. 2004-99 TO REQUEST CHARTER COMMISSION REVIEW OF FILING FEES -RESOLUTION RESCINDING RESOLUTION NO. 2004-99 REQUESTING BROOKLYN CENTER CHARTER COMMISSION TO REVIEW SECTION 4.04 OF THE CITY CHARTER Mr. McCauley discussed that this resolution would rescind Resolution No. 2004-99 and causes no action. Councilmember Lasman discussed that her intent was to save the City some money and did not wish to discourage anyone from running for City Council. After thinking it over, she realized the City Council cannot be judges of people's intentions when they file for:candidacy and the City Council should encourage people to participate in local government. Councilmember Lasman withdrew her support of Resolution No. 2004-99. 08/09/04 -6- DRAFT RESOLUTION NO. 2004-108 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION RESCINDING RESOLUTIOI� NO. 2004-99 REQUESTING BROOKLYN CENTER CHARTER COMMISSION TO REVIEW SECTION 4.04 OF THE CITY CHARTER The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Carmody. Motion passed unanimously. 8e. REPORT ON CODE ENFORCEMENT SWEEP Police Chief Scott Bechthold discussed the 2004 Second Quarter Code Enforcement Sweep Report. He outlined the citywide calls for service along with calls for service for Brookdale, Apartments, and Motor Vehicle Accidents. The main increase for citywide calls for service is due to suspicious activity; and the significant drop in calls for service with apartments is attributed to the new rental ordinance and the involvement in the Association for Rental Management (ARM), the close relationship that the Neighborhood Liaison Office (NLO) has with problem residents, and the new rental ordinance. Mr. Bechthold informed that the crime index totals have decreased ten percent since 2002 and discussed that the implemented crime strategy had helped with the decreasing numbers. Mr. Bechthold discussed that even thou h this re ort is called a summer swee the Police g P P� Department continues enforcement all year round. Councilmember Carmody questioned the number of motor vehicle accidents being down and if that was due to the clean up of the area from I-694 to 69�' and Brooklyn Boulevard. Mr. Bechthold discussed that the decrease in motor vehicle accidents would be attributed to a lot of enforcement efforts. Councilmember Carmody questioned how residents could be assured a response back if they were to report a concern or complaint. Mr. Bechthold informed that a lot of times the concern or complaint being left is one that is in progress and that residents need to notify the NLO that they would like a response back or a follow-up telephone ca1L Councilmember Carmody questioned how the Police Department deals with a chronic offender. Mr. Bechthold discussed that the Police Department is an enfarcement arm and that they are not in control of the Hennepin County Bench. He informed that the Police Department has been working with the City's Prosecutor about an approach to deal with code enforcement issues. Councilmember Carmody questioned if there were plans to make code enforcement on-going instead of only having a sweep once a year. Mr. Bechthold informed that even through the winter the NLO does patrol the City; however, the winter hides a lot of code violations. 08/09/04 8f. RESOLUTION ACCEPTING 2004 ANNUAL DEER MANAGEMENT IMPLEMENTATION PLAN REPORT AND ADOPTING THE CITY MANAGER RECOMMENDATIONS THEREIN Mr. McCauley discussed that the Council adopted a Deer Management Plan and that the plan requires an annual progress report each summer regarding implementation of the annual strategies. The first season of the plan implementation had been completed and a determination had been made that the number of deer in Brooklyn Center continues to exceed the recommended norm fifteen to twenty deer per square mile of habitat area. This resolution would accept the 2004 Annual Deer Management Implementation Plan Report and adopts the recommendations to conduct another deer hunt in the same format after Thanksgiving. Mayor Kragness questioned if the Twin Lake area would be considered during a planned deer hunt. Assistant City Manager/Director of Operations Curt Boganey discussed that the Twin Lake area had been reviewed; however, most of the area where deer are a concern is in Crystal. Councilmember Lasman questioned if the Riverwood area would be participating or phased in a planned deer hunt in the future. Mr. McCauley discussed that they would not be able to hunt in a neighborhood area. RESOLUTION NO. 2004-109 Councilmember Carmody introduced the following resolution and moved its adoption: RESOLUTION ACCEPTING 2004 ANNUAL DEER MANAGEMENT IMPLEMENTATION PLAN REPORT AND ADOPTING THE CITY MANAGER RECOMMENDATIONS THEREIN The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Lasman. Motion passed unanimously. 8g. REQUEST FROM MINNESOTA DEPARTMENT OF TRANSPORTATION FOR MODIFICATIONS TO T.H. 100 ACCESS AT 50� AVENUE NORTH Mr. McCauley discussed that the Minnesota Deparhnent of Transportation (Mn/DOT) had requested a modification to close SO Avenue and install the permanent paving and permanent access ramp improvements over a six or so week period. The trade off being proposed is a potentially safer configuration and completion of the proj ect this year rather than temporary lanes going through the winter. Dave Raley, Mn/DOT Project Supervisor, addressed the Council to discuss their request and informed that County Road 81 had opened last week so that could be one of the alternates used if 50�' Avenue were to close. 08/09/04 -8- Mayor Kragness questioned when the closure would take place. Mr. Raley informed that they would anticipate closing 50�' Avenue in late August and that they want to coordinate with the paving contractor before starting the closure. Councilmember Carmody questioned the neighborhood improvements in that area and if the alternate routes would be drivable during this closure. Public Works Director/City Engineer Todd Blomstrom informed that the construction area is anticipated to be paved on September 15, 2004, and that there will be about two thirds of gravel until that area is paved. Councilmember Niesen expressed support for moving the project ahead and resolving the current problems with turning at 50�' Avenue from Highway 100. Mr. Raley informed that they are four months ahead of schedule for the T.H. 100 project. A motion by Councilmember Niesen, seconded by Councilmember Lasman to adopt position on proposed alternate. Motion passed unanimously. 9. ADJOURNMENT There was a motion by Councilmember Carmody, seconded by Councilmember Lasman to adjourn the City Council meeting at 7:55 p.m. Motion passed unanimously. City C�erk Mayor 08/09/04 9 DRAFT 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 AUGUST 9, 2004 CITY HALL COUNCIL CHAMBERS 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. SMOHING BANS This item was discussed at the Study Session. MISCELLANEOUS There were no miscellaneous items discussed. City Clerk Mayor 08/09/04 1 DRAFT MINUTES OF THE PROCEEDINGS OF THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER 1N THE COUNTY OF HENNEPIN AND THE STATE OF MINNESOTA JOINT WORK SESSION WITH FINANCIAL COMMISSION AUGUST 16, 2004 CITY HALL COUNCIL CHAMBERS CALL TO ORDER The Brooklyn Center City Council met in Work Session and was called to order byMayor Myrna Kragness at 6:30 p.m. ROLL CALL Mayor Myrna Kragness, and Councilmembers Kathleen Carmody and Diane Niesen. Councilmember Kay Lasman and Bob Peppe were absent and excused. Also present: City Manager Michael McCauley, Assistant City Manager/Director of Operations Curt Boganey, Fiscal and Support Services Director Dan Jordet, and Deputy City Clerk Maria Rosenbaum. Others present were Financial Commission Chair ponn Escher, and Commissioners Timothy Elftmann, Jay Hruska, and Mark Nemec. REVI EW OF 2005 GENERAL FUND BUDGET City Manager Michael McCauley discussed that the overall revenues in the General Fund would increase 7/l Oths of one percent with a three percent levy increase in the General Fund. The Local Government Aid (LGA) loss of $335,033 is greater than the revenue raised by a three percent levy increase. A three percent increase in the General Fund Levy raises $275,860 {$284,407 estimated uncollectible}, and the overall increase in all City and Housing and Redevelopment Authority (HRA) levies is $212,301 or 1.97 percent. On the expenditure side there are a number of pressures that include wages and benefits that are included in the draft budget at three percent. This increase appears to be in the mid to low range of what might be expected to happen in the public sector and lower than the general trend in the private sector. The draft reflects shifting one street maintenance position to the Storm Water Utility Fund and a shift of some current General Fund personnel costs to the Liquor Fund. There are some expenditures that have been requested that can be removed in the next iteration of the draft General Fund Budget without requiring program or service cuts, but those reductions will be at the margin and would only be in the range of $20,000 to $30,000. 08/16/04 -1- DRAFT Mr. McCauley requested direction as to what number should be proposed far the preliminary levy on September 13, 2004. Councilmember Carmody expressed that she believes the Council needs to make a decision if the Council would like to budget any money for REACH. Councilmember Niesen questioned if the City had to switch to the 800 mhz for police and fire and if that would be a one-time expense. Mr. McCauley discussed that the City does have to switch to 800 mhz and that there will be grant monies that will need to be matched along with some on-going capital costs. Plus, there is a continuing cost to Hennepin County for participation in the annual metro radio system. Councilmember Carmody informed that she has a concern with the repair and replacement of buildings and the need for funding for this purpose. Financial Commission Chair ponn Escher expressed that he would like the Council to consider a three percent General Fund Levy increase plus full replacement of lost LGA. Mayor Kragness asked that each member present indicate what alternate for consideration should move forward for the September 13, 2004, preliminary adoption. It was the consensus of those present that the preliminary General Fund levy increase be proposed at three percent plus full replacement of lost LGA ($335,033) which results in a 5.08 percent increase in all taxes levied by the City and HRA. Councilmember Carmody expressed that she would still like to consider a budget for REACH. Mr. McCauley suggested that the Council continue discussion regarding REACH at the next Wark Session. MISCELLANEOUS Mr. Escher questioned if the Financial Commission would need to meet other than the scheduled j oint meetings with the City Council. Mr. McCauley suggested that the Financial Commission might wish to meet to discuss the fund balance. Mr. Escher suggested September 9, 2004, 7:00 p.m. ADJOURNMENT A motion by Councilmember Carmody, seconded by Councilmember Niesen to adjourn the Work Session at 8:10 p.m. Motion passed unanimously. City Clerk Mayar 08/16/04 -2- DRAFT City Council Agenda Item No. 7b City o f Brooklyn Center A Millennium Community TO:' Michael J. McCauley, City Manager FROM: Maria Rosenbaum, De��City Clerk DATE: August 18, 2004 SUBJECT: Licenses far 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 August 23, 2004 are as follows: MECHANICAL Commercial Plumbing Heating, Inc. 24428 Greenway Avenue, Forest Lake RENTAL Renewal: 5401 63` Avenue North John Schwarz No Calls 6744 France Avenue North Donald Renelt No Calls 3318 MumfordRoad North Olufemi Olagbajv 1 call Disturbing Peace on 7/9/2004 5655 Northport Drive Cindy and Raymond Scherbing No Calls 7208 Perry Court North Vicnent Okonkwo No Calls InitiaL• 6706 Bryant Avenue North Sompong Thammavangla No Calls 7236 Emerson Avenue North Kao Vang No Calls 4113 Lakebreeze Avenue North Dale Grover No Calls 5328 and 5330 Queen Avenue North Chad and Amy Buche No Calls 6301 Shingle Creek Parkway Recreation and Community Center Phone TDD Number Brooklyn Center, MN 55430-2199 (763) 569-3400 City Hczll TDD Number (763) 569-3300 FAX (763) 569-3434 FAX (763) 569-3494 w w w. cityo fb roohlyncenter. o rg City Council Agenda Item No. 7c MEMORANDUM TO: Michael J. McCauley, City Manager FROM: Ronald A. Warren, Plannin and Zonin S a ialis�� t�(—'�•l� g g P SUBJECT: Site Performance Guarantee Reduction DATE: Au�ust 17, 2004 The following site performance guarantee being held by the City for the completion of various site improvements should be recommended to the City Council for reduction: Global Hennepin County Properties, LLC (2000 Freeway Boulevard) Planning Commission Application No. 2003-019 Amount of Guarantee- $200,000 (Certificate of Deposit) Obligor Global Hennepin County Properties, LLC All site im rovements and conditions for p which a site performance guarantee was posted have been completed with respect to this 2003 2004 project. An as built survey has been submitted to the Engineering Department and other engineering related items have been completed. Landscaping for this developrrient was installed this summer and is in compliance with the landscape plan; however, some landscaping appears to be dead or dying at various locations on the site. Specifically, at the northeast corner of the building, decorative trees and a coniferous tree are dead or dying and at the southwest corner of the site between the parking lot/drive lane and street right of way, decorative trees are dead or dying. Also, two unscreened trash containers are being stored in the north parking lot. A review of the record indicates that trash containers were to be stored inside the building in the loading dock area. If Global proposes to store trash containers outside, they will have to be enclosed by a screening device compatible with the building and located in an area not designated for parking, driving or loading. It is recommended that the City Council authorize reduction of the $200,000 performance guarantee to $35,000 pending review next spring of the viability of the landscape improvements and compliance with the screening requirements for trash containers. City Council Agenda Item No. 7d Member introduced the following resolution and moved its adoption: RESOLUTION NO. RESOLUTION AUTHORIZING APPROVAL OF THE ISSUANCE OF A PREMISES PERMIT FOR BROOKLYN CENTER FIRE RELIEF ASSOCIATION TO CONDUCT LAWFUL GAMBLING AT COYOTE GRILLE, 2101 FREEWAY BOULEVARD, BROOKLYN CENTER, MINNESOTA WHEREAS, the Brooklyn Center Fire Relief Association has applied to the Minnesota Charitable Gambling Board for a premises permit to conduct lawful gambling at Coyote Grille, 2101 Freeway Boulevard, Brooklyn Center, Minnesota; and WHEREAS, the Minnesota Charitable Gambling Control Board requires a municipality to submit a resolution authorizing approval of the issuance of any lawful gambling premises permit within its borders; and WHEREAS, the Brooklyn Center Fire Relief Association has submitted all appropriate and necessary documentation for the premises permit and a background investigation has been conducted by the Brooklyn Center Police Department regarding all named gambling managers and nothing was found in that investigation that would preclude the issuance of a Minnesota Lawful Gambling License; and WHEREAS, the Brooklyn Center Fire Relief Association agrees to provide to the City of Brooklyn Center each month copies of the monthly reports they submit to the Charitable Gambling Board. NOW THEREF ORE, BE IT RESOLVED by the City Council of the Crty of Brooklyn Center, that the issuance of a premises permit to the Brooklyn Center Fire Relief Association to conduct lawful gambling at Coyote Grille, 2101 Freeway Boulevard, Brooklyn Center, Minnesota, is hereby approved. Aueust 23. 2004 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. Minnesota lawful Gambling sros LG214 Premises Permit Application Pa °f2 FOR BOARD USE ONLY (see Required Attachments on Page 2) AIIIIUaI F@@ ��SO Check# Organization information Organization name Organization license number �Rbo��y� c�.,vr�� F'�RE f��4��� Assoc, osa�6 Name of chief executive officer (CEO) Daytime phone number K�h+ KoRr�rtnl �b3 �'69 33! 1 Gambling premises information Name of estabfishment where gambling will be conducted Street address (do not use a P.O. box number) �o �l o�"� G�;11 t 2•� I wia.Y 81 v� Ciry or township County Zip code bRODk"LYN �ENTE� /�ENI✓ �J�!��O Does your organization own the building where the gambling will be conducted? Yes �No If no, attach LG215 Lease for Lawful Gambling Activity Gambling bank account information Bank name Bank account number �REmER �RNk �g�g.3oa�a9 Bank street address City State/Zip code 5S4o SRooK �Y� aLV� Rca�kcr� ��r�R n► N s5'va 1 Address(es) of off-site storage space of gambling equipment related to this site (Do not use a P.O. box number) Address City State/Zip code G aso a.ed�Ly N� �v 3�ooKc.v�' c�.nrrcR M N �S�{ 1�j Bingo occasions (including bar bingo) Enter day and beginning/ending hours of bingo occasions (indicate A.M. or P.M.). An occasion must be at least 1-1/2 hours, not to exceed 4 hours. No more than 10 bingo occasions may be conducted per week. B�ainnina/Endina Hours Beoinnina/Endina Hours to to to to to to to to to to Noon hour bingo Noon hour bingo must be conducted between 11:00 a.m. and 2:00 p.m. on a leased premises which must have a license for the sale of intoxicating beverages on the premises under chapter 340A. Check the day(s) that noon hour bingo will be conducted. _Sunday _Monday Tuesday _Wednesday Thursday _Friday _Saturday LG214 Premises Permit A IICat1011 Page 2 of 2 pp sios Data Privacy The information requested on this form (and any attachments) your premises permit. When the Board issues your premises will be used by the Gambling Control Board (Board) to permit, all of the information that you have provided to the Board in determine your qualifications to be involved in lawful gambling the process of applying for your premises permit will become public activities in Minnesota, and to assist the Board in conducting a except for your social seeurity number, which remains private. If background investigation of you. You have the right to refuse the Board does not issue you a premises permit, all the information to supply the information requested; however, if you refuse you have provided in the process of applying for a premises permit to supply this information, the Board may not be able to remains private, with the exception of your name and address determine your qualifications and, as a consequence, may which will remain public. refuse to issue you a premise's permit. If you supply the information requested, the Board will be able to process your Private data about you are available only to the following: Board application. members, Board staff whose work assignment requires that they have access to the information; the Minnesota Depa�tment of Public This form may require the disclosure of your social security Safety; the Minnesota Attorney General; the Minnesota number. If so, your social security number will be used to Commissioners of Administration, Finance, and Revenue; the determine your compliance with tlie tax laws of Minnesota. Minnesota Legislative Auditor, national and intemational gambling Authorization for requiring your social security number is regulatory agencies; anyone pursuant to court order; other found at 42 U.S.C. 405 (c)(i). individuals and agencies that are specificaily authorized by state or federal law to have access to the information; individuals and Your name and address will be public information when agencies for which law or tegal order authorizes a new use or received by the Board. All the other information that you sharing of information after this notice was given; and anyone with provide will be private data about you until the Board issues your consent. Acknowledgment and Oath I hereby consent that local law enforcement officers, the Board or agents of the board, or the commissioner of revenue or public safety or agents of the commissioners may enter the premises to enforce the law. The Board is authorized to inspect the bank records of the gambling account whenever necessary to fulfill requirements of current gambling rules and law. I declare that: 1. I have read this application and all information submitted to the Board is true, accurate, and complete; 2. All required information has been fully disclosed; 3. I am the chief executive officer of the organization; 4. I assume full responsibility for the fair and lawful operation of all activities to be conducted; 5. I will familiarize myself with the laws of Minnesota governing lawful gambling and rules of the Board and agree, if. licensed, to abide by those laws and rules, including amendments to them; 6. Any changes in application information will be submitted to the Board and local unit of government within 10 days of the change; and 7. I understand that failure to provide required information or providing false or misleading information may result in the denial or revocation of the license. �,�.�--t�,�,!o�v�.� g -r� -o �,r Signature of Chief Executive OfFcer (Designee may not sign) Date Print name ��n�T �C� N'1A1� Required Attachments 1. If the premises is leased, attach a copy of your lease. NpriE; There is a monthly regulatory fee of 0.1% Use form LG215 Lease for lawFul Gambling Activity. (,001) of gross receipts from lawful gambling 2. Attach the resolution from the local unit of govemment condueted at the site. The fee is reported on (city or county) which shows approval of your application. the Gi Lawful Gambfing Monthly Summary and 3. For each premises permit application, a$150 annual premises Tax Return and paid with the monthly tax permit fee is required. Make the check payable to the "State report. of Minnesota." Mail the a lication with attachments ta Q�stions? Call the Licensing Section of the Gambling Control pp Board at 651-639-4000. If you use a TTY, call the Board by using Gambling Control Board the Minnesota Relay Service and ask to place a call to 651-639- 1711 West County Road B, Suite 300 South 4000. Roseville, MN 55113 This form will be made available in alternative format (i.e. large �nnt Braille) uoon reauest. Minn�sota Lawfu/ Gambling s/o4 LG215 Lease for Lawful Gambling Activity Pa 1 of Z Name of legal owner of premises Street address Cily State Zp Daytime phone s� k k a 14t13 S�Vtt�' ��'4►'�►�ers -,�i01 ���rwny��� �Yoo�<�i�► �iN��er iln ,�sK3b i� 7�1/-• q6 Name of lessor Street address G' State Zi �Y p Daytime phone I f same as lega l owner, write in "SAME'� Q e Name of leased premises Street address City 7 �P 55 �"3 D Daytime phone ['oy'o�e C'rr��l/� �l o l �ve�way��vcb �vrao�<�yN��-�PrHn 7B�' .7fij,�6l0d Name of lessee (organizaUon leasing the premises) Organization license number Daytim ph o ne _I t� �F a o� a.3 �r 3 a Rent Information (for activity involving pull-tabs, tipboards, paddlewheels, and pull-tab dispensing devices. No lease required for raffles.) Booth operetion sales of gambling equipmerrt by an employee (or Bar operation sales of gambling equipmerrt within a leased volunteer) of a licensed organization within a separate endosure t�hat is premises by an employee of the Iessor from a common area where disGnct from areas where food and beverages are sold. _____f� and bevera� are also sold_ Does your organization OR any other organizat�iQn conduct gambling from a booth operetion at this location? X Yes No L J If you answered �/CS to the question above, rent limits are If you answered I70 to the question above, rent limits are based on tt�e following combinations of operation: based on the following combinatlons of operation: Bootf� operation Bar operation Booth operation and pull-tab dispensing device Bar operation with pull-tab dispensing device Booth operation and bar operation Pul1-tab dispensing device only Booth operation, bar operation, and pull-tab dispensing device The maximum rent allowed may not exceed the limits The maximum rent allowed may not exceed the limits established under Minnesota Statute 349.18, Subd. 1(b)(4). established under Minnesota Statute 349.18, Subd. 1(b)(4). The limit as of May 1, 2004 is $1,750 in total per month The limit as of May 1, 2004 is $2,500 in total per month for all organizations at this premises. for all organizations at this premises. Complete one option: Complete one option: Option A: 0 to 10% of th gross profits per month. Option A: 0 to 20% of the gross profits per month. Percentage to be paid Percentage to be paid Option B: When gross profits are $4,000 or less per month, $0 to Option B: When gross profits are $1,000 or less per month, $0 to $400 per month may be paid. Amount to be paid $200 per month may be paid. Amount to be paid Option C: $0 to $400 per month may be paid on the first $4,000 Option C: $0 to $200 per month may be paid on the first $1,000 of gross profit. Amount to be paid Plus 0% to of gross profits. Amount to be paid.$ Plus 0% to SO% of the gross profits may be paid per month on gross profits 20% of the gross profits may be paid per month on gross profits over $4,000. Percentage to be paid over $1,000. Percentage to be paid Check all activities that will be conducted: �Pull-tabs _Pull-tabs with dispensing device Tpboards _Paddlewheel �Paddlewheel with table Rent Information: Bingo Bingo and/or Bar Bingo Occasions Noon Hour Bingo Occasions Rent for bingo and all other gambling activities condueted during a bingo occasion may not exceed: Rent may not exceed $25 per day for noon hour •$200 per occasion for up to 6,000 square feet bingo conducCed between 11 a.m. and 2 p.m. at a •$300 per occasion for up to 12,000 square feet premises with a license for the sale of intoxicating •$400 per occasion for more than 12,000 square feet beverages on the premises. •$25 per occasion for bar bingo conducted at any time in a Rent to be paid per bingo occasion bar (regardless of square footage). Your organization must conduct another form of lawful gambling, and the r premises must serve intoxicating liquor or 3.2 percent For any new bingo acUvity not previously malt beverages. included in a Premises PermitApplication, attach a separate sheet of paper listing the Rent to be paid per bingo occasion days and hours that bingo will be conducted. I L--------- Amended if this is an amended lease showing changes occurring during the term of the current premises permit, both parties that signed the lease must initial and date all changes. Changes must be submitted to the Gambling Control Board Lease at least 10 days prior to the change. Write in the date that the changes will be effective Only Lessor Date Organization Date r T t LG215 Lease for Lawful Gambling Activity 5io4 Page 2 of 2 Lease Term The terrn of this lease agreement will be The lessor, the lessor's immediate family, and any agents or concurrent witl� the premises permft issued by tf�e Gambling empioyees of tf�e lessor will not require the organization to Cantrol Board (Board), perform any action that would vio(ate statute or rule. Management of Gambiing Prohibited The owner of the If there is a dispute as to whether any of these lease provisions premises or the lessor wi11 not manage the conduct of gambling have been violated, the lease will remain in effect pending a final at ti�e premises. determination by the Compliance Review Group (CRG) of the Gambling Control Board. Participation as Players Prohibited The lessor, the lessor's The lessor shall not modiry or terminate this lease in whole or in immediate family, and any agents or gambling employee5 of ti�e part due to tlie lessors violation of the provisions listed in this lessor wili not partiapate as players in the wnduct of lawful lease. gambling on tlie premises. Arbitration Process The lessor agrees to arbitration when a Illegal Gambling violation of these lease provisions is alleged. The arbitrator shall be The lessor is aware of the prohibition against illegal gambling the CRG. in Minnesota Statutes 609.75, and tt�e penalties for illegal gambting violations in Minnesota Rules 7861.Q050, Subpart 3. Access to permitted premises The Board and its agents, the To the best of the lessors knowledge, the lessor affirms that �mmissioners of revenue and public safety and their agents, and any and all games or devices located on tf�e premises are not law enforcement personnel have access to the permitted premises being used, and are not capable of being used, in a manner at anyreasonable time during the business hours of the lessor. that violates the prohibitions against iilegal gambling in Minnesota Statutes 609.75, and the penalties for illegal The organization has access to the permitted premises during any gambiing violations in Minnesota Rules 7861.0050, Subpart 3. time reasonable and when necessary for the conduct of lawful Notwithstanding Minnesota Rules 7861.0050, Subpart 3, an 9ambiing on the premises. organiration must continue making rent payments, pursuant Lessor records The lessor shall maintain a record of all money to the terms of the lease, if the organization or its agents are received from the organization, and make the record available to found to be solely responsible for any illegal gambling conducted �-,e Board and its agents, and the commissioners of revenue and at that site that is prohibited by Minnesota Rules 7861.0050, public safety and their agents upon demand. The record shall be Subpart 1, or Minnesota Statutes 609.75, unless the maintained for a period of 3-1/2 years. organization's agents responsible for the illegal gambling activity are also agents or employees of the lessor. Rent all-inclusive Amounts paid as rent by the organization to The lecsor shall not modify or terminate the lease in whole or the lessor are all-indusive (except bingo rent). No other services or in part because the organization reported to a state or local �Penses provided or contracted by the lessor may be paid by the law enforcement authority or the Board the occurrence at the organization, including but not limited to trash removai, janitoriai site of illegal gambting activity in which the organization did not and cieaning serviees, snow removal, lawn services, electnciry, partidpate. heat, security, searity monitoring, storage, other utilities or Other Prohibitions services, and in the case of bar operations, cash shortages. Any The lessor will not im other expenditures made by an organization that is related to a pose restrictions on the organization with teased premises must be approved by tlie director of the Gambling respect to providers (distributors) of gambling-related equipment Control Board. Rent payments may not be made to an individual. and services or in the use of net profits for lawful purposes. Acknowledgment of Lease Terms All obligations and agreements are contained in or attached to this tease and are subject to the approval of the director of the Gambling Control Board. I affirm that the lease information is the total and only agreement between the lessor and the organization. There is no other agreement and no other consideration required between the parties as to the lawful gambling and other matters related to the lease. Any changes in this lease Vvill be submitted to the Gambling Control Board at least 10 days prior to the effective date of the change. Other Terms or conditions: �t. C�� tAS[ Q���afi 5. '�"D CI,C.�►�J� ,��iU l l/"I i f r 4 ,�'�.�.��'I. /U g-,�-� y Sigriature of lesso� Date re of organization offi�l (Lessee) Date ,1\Iir_1� G�r-l�alv�n 1�n S �heS ll� TO.t'�� 6R 4 "�aw�i�:� n� Pnnt name and title of lessor I Print name and titte of lessee 1 Questions on this form shoufd be directed to the Licensing Section of the Gambling Control Board (Board) at 651-639-4000. I This publication will be made available in altemative fortnat (i.e. large print, Braille) upon request. If you use a TTY, you can call the Board by using the Minnesota Relay Service and ask to place a call to 651-639�000. The information requested on this form will become public information when received by the Board, and will be used to determine your compliance with Minnesota statutes and rules goveming lawful gambling activities. City Council Agenda Item No. 7e 4 MEMO Date: August 19, 2004 To: Michael McCauley. City Manager From: Curt Boganey, Assistant City ManagE�i� Subject: Repair of Arch at Earle Brown Heritage Center- Property Damage Release On June 24 2004, a Metro Connections service truck irreparably damaged the wooden arch on Summit Dr. North at the Earle Brown Heritage Center. For public safety reasons the arch was completely removed. This matter was promptly reported to the appropriate insurance companies and all repair and incurred cost have been identified. Through the thorough and expeditious work of the staff we have reached a settlement with Metro Connections Inc and Acuity Insurance in the amount of 21,212.47. This payment will fully reimburse the City for the necessary repairs and associated costs incurred. It is recommended that the City accept this payment and authorize the property damage release attached. Rug 18 02 09:15a SUSRNPORTER p.2 �'ROPERTY D AMAGE RELEqSE W A W N�! IlRUralco Lqnpm� Claim Number. KP9723 Claim Adjuster. Sue Porter IN CONSIpERATI�N of the sum of finrenty one thousand and two hundred and tweive doltars and 47/10 ao��ars. receipt and sufficiency of wtiich is hereby acknowiedged, Ilwe re�ease, acquit artd forever discha e Connection INC. and ACW7Y, A Mutual Ins�rance Company, Shebo ���212i2-47} agents, employees, successors and assigns, and ali other persans, tirms or corporations who are or Metro ygan, Wisconsin, their heirs, r�epresentatives. and from al! claims, demands, actions, darnages, costs, loss of use andJor value, of whatever kind or n m�ght be I+able, of now or hereafter exist, arising out of, or in consequence of DAMAGE OR OESTRUCTION TO PROPLR7Y, pgrsp� real, s ature, which may Pe��fca(!Y described as tnsured damage arch at the Earl Brown Hertiiage Center, and arising from an accident occurring vn or about .►une Z4,2004 or The undersigned, as further consideration for this compromise and settlement, states, represents, wamants a agrees: nd (1) That this settlement is a compromise of a doubtful and disputed claim; that the payment is not to be constr an admission af liability; and, ihat tiability is expressly denied by the party or parties released. (2) 1"hat the acceptance of the abo�e-mentioned 5um shall not prejudice, foreclose ar bar any claim that ued as have for personal injuries, rr�edical expenses, compensation or damages other than to mylour pro rt not released herein, which claims and causes of action are s may pecifically reserved, y sAecifically 3) T h e u n d e r s g n e d fu rt her warrants and repr that there �mpanies or other thrrd-p2rties who have rights against the parties refea5ed herein based �pon subrogation, derivation are no known persons, firms, corporations, insurance or assignment orig�nating from the claims of the unders;gned arising out of the accident described above or an aiher basis. In the event that any person, firm, carporation or i�surance company does indeed hau r' subrogation, derivation or assignment, or any other basis against the parties released herein f r y accident qescribed above, t�e unde i e►ghts baseci upon such claims. 9�ed agrees to defend and hold harmless the parties re eased herein the (4) Thi5 release conta+ns the entire agreement between the parties hereto. The terms of this release are contr and not a mere recital. 7"he undersigned has/have carefully read and understood ihe contents of this release. INVE FURTNER STATE THA7 INVE HAVE CAREFULLY F�EAD 7HE FOREGOING RELEASE actuat CONTENTS THEREOF� qNp ��E SIGN TNE SAME AS MY/OUR OWN FR�E ACT. AND KNOW YHE Rel ease of atl claim5 witness my/our hand(s) and sea((s) this at day of WITNESSEb BY: CAUTlON! R�AD SEFORE SIGNWG (SEAL) (SEAL) (SEAL) SC�le k�w, in �m� stvtr. rr,quir� ��I ddvic� ypu o( thv {ottpwin�: A p�� toRtrnife insulanct, (reW whl� c�7lpBny or pp�on, fiierc e a�F�lemy�t ol cieim or rhalce� �pplicstbn for inaurgncs d crime i! he or she knawingly antl Nnth ���1 lo no(rn��d eny K�23(6-01) wnlninine� eny fe�, or docepli�e 4n(orrRetioq. CITY OF BROOKLYN CENTER ESTIMATE OF COSTS INCURRED AT EBHC REMOVAL AND REPLACEMENT OF DAMAGED ARCH 6/24/2004 Remove arch from truck, remove the arch safety hazard: Labor, at overtime rates 385.24 Equipment 292.46 6/25/2004 Cut up, load, and haul the debris away: Labor 209.62 Equipment 221.23 Landfill dumping charge 73.80 Estimate: Visible Glass, Inc. Replacement of arch, excluding paintin� 18,120.00 Estimate: EBHC staff to paint the arch-materials and labor 900.00 Subtotal 20,202.35 Administrative fee 1,010.12 TOTAL ESTIMATED COST: 21,212.47 City Council Agenda Item No. 7f MEMORANDUM DATE: August 18, 2004 TO: Michael J. McCauley, City Manager FROM: Joyce Gulseth, Public Works Adil7inistrative Aide 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 with approved procedures. It is anticipated tl7at this resolution will be submitted for�council consideration each meeting during the summer and fall as new trees are marked. 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 certain 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 nuisance. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center, Mimlesota that: 1. The diseased trees at the following addresses are hereby declared to be a public nuisance: PROPERTY OWNER PROPERTY ADDRESS _TREE NUMBER BETHANY PALLAS TIMOTHY SCHULTZ 6006 EWING AVE N 293 JOHN KELLY DANIEL SOFFA 3606 58 AVE N 294 KEVIN FRENNING 5713 JAMES AVE N 295 KEITH CONNIE BIROSH 420 67 AVE N 296 MORRIS RUTH COOPER 500 67 AVE N 297 NAZNEEN KHATQON 6213 CHOWEN AVE N 298 TERRIE PHILLIPS 4412 66 AVE N 299 TODD DESCHEPPER 6122 COLFAX AVE N 300 CARL FRANCES GOLUB 5307 BRYANT AVE N 301 RICHARD JOLEEN MILLER 5127 FRANCE AVE N 302 TENESHIA DEMOND PLUNKETT 5906 VINCENT AVE N 303 PEDRO GARCIA/FRANCISCA GUADARRAMA 5211 FRANCE AVE N 304 CITY OF BROOKLYN CENTER VARIOUS PARKS 305,306 HUGO PATRICIA LINDNER 5328 PENN AVE N 307 KIMBERLY PEARSON 5700 DUPONT AVE N 308 WILLIAM GRISSAM NINA DOREE 5814 FREMONT AVE N 309 TRAVIS LORENSON 5835 CAMDEN AVE N 310 ARLENE LOCKWOOD 5615 HALIFAX AVE N 311 DAVID THEISEN 5559 LYNDALE AVE N 312 JUDITH DEAN PAURUS 627 58 AVE N 313 RENATO DEBORAH JAPOR 5848 BRYANT AVE N 314 TRAITEN GLJNDERSON 630 58 AVE N 315 GRANT JOHNSON 5530 BRYANT AVE N 316 RESOLUTION NO. 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 detei 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 removed by the �City. All removal costs, iilcludiizg legal, financing, and adininistrative charges, shall be specially assessed against the property. Date Mayar ATTEST: City Clerk The motion for the adoption of the foregoing resolution was duly seconded by member and upon vote being taken thereon, the followin voted in favar thereof: g and the following voted against the same: whereupon said resolution was declared duly passed and adopted. I City Council Agenda Item No. 7g c•;iyar MEIVIORANDUM anooxLYN CENTER DATE: August 16, 2004 TO: Michael McCauley, City Manager FROM: Todd Blomstrom, Director of Public Works 1�'" SUBJECT: Resolution Approving Change Order No. l, Improvement Project Nos. 2004-01, 02, 03 and 04, Contract 2004-A, Noi•tl�port Area Neighborhood Street Utility Iinprovements The City of Broaklyn Center entered into Contract 2004-A with S.R. Weiden�a, Inc. for completion of the I�lorthport Area Street and Utility Improvenlents. During the first six weeks of construction, two connact change order items were address ui the field as described on the attaclled Change Order No. 1. The first item iilvolved n7odifications to the sanitary sewer desigi7 to provide for a sewer connection at the intersection of France Avenue and 53� Place. The second iten� involved illiilor repairs to a water hydrant that was damaged by Contractor forees. The cost of the hydrant repair �would be assessed against the Contractor as a deduction from the contract amount. Attached for City Couileil consideration is a resolutiotl approving Chailge Order No. 1 in tl�e amount of $2, 65.95 for the Northpoi Area Neighborhood Street Utility Improvements, Improvement Project Nos. 2004-01, 02, 03 and 04, Contract 2004-A. Member introduced the following resolution and moved its adoption: RESOLUTION NO. RESOLUTION APPROVING CHANGE ORDER NO. l, IMPROVEMENT PROJECT NOS. 20�4-01, 02, 03 and 04, CONTRAGT 2004-A, NORTHPORT. AREA NEIGHBORHOOD STREET UTILITY IMPROVEMENTS WHEREAS, pursuailt to a written contract signed with the City of Brooklyn Center, Minnesota, S.R. Weidema, Inc. of Maple Grove, Mini7esota completed additional work to provide for a sanitary sewer connection at the intersection of France Avenue and 53`� Place; and WHEREAS, the Contractor has agreed to assume the cost for repairs to a water hydrant near the intersection of France Avenue and 55"' Avenue North as part of Contract 2004-A. NOW, THEREFORE, BE IT RESOLVED by the City Council of the Ciry of Brooklyn Center, Mirulesota that Change Order No. 1 is herby approved in the amount of $2,165.95. The revised contract amowlt shall be as follows: Original Contract Amount 2,673,332.07 Change Order No. 1 2.165.95 Revised Contract Amount 2,675,498.02 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. City of Brooklyn Center CHANGE ORDER NO. 1 Contractor: S.R. Weidema Inc. Jul 22 2004 Address: 17600 113`�' Avenue Nortl� Maple Grove, MN 55369 Project: Northport Area Neigl�borl�ood Street Utility Improvements Improvement Praject Nos. 2004-01, 02, 03 04 Contract No. 2004-A Ii1 accordance with the tern�s of this Contract, the Contractor is hereby authorized and instructed to perfonn the work as altered by tl�e following provisioi�s: The following items were not included i�� the unit price proposal forn� or deemed to be necessary to complete the project according ro the intended design. This cl�ange order resolves all outstanding contract adjustme��t claims fi the Conh for all worlc completed tl�ro�igh J�ily 22, �2004 for the project. L Sanitary Sewer Connection France 53� Place Intersectioiu Payment for core drilling for one (1) sanitary sewer n�anhole along France Avei��ie to allow connection to sanitaiy sewer system on 53` Place. This item also inciudes 5 L.F. of 15-inch diameter RCP sanitary sewer pipe, connection to existing sanitary sewer main and 4 hours of Contractor lal�oc and equipment time. Total Compensation for Labor, Materials and Ec�uipment: 2,542.00 2. Hydrant Repair: Minor repair to water main hydrant operating assembly for hydrant located near intersection of France Avenue and 55` Avenue North. Hydrant was damaged during connectio�� of temporary water system. Hydrant repair completed on July 13, 2004 by other contractor (Invoice No. 0499-01). Total deduction for Labor, Materials and Equipment: 376.05 TOTAL CHANGE ORDER NO. 1 2,165.95 Original Contract Amount 2,673,332.07 Change Order No. 1 7 1 ES 95 Revised Contract Amount 2,675,498.02 Page 1 Change Order No. 1 Contract 2004-A July 22, 2004 CHANGE IN CONTRACT TIME The Contract completion date is extended by 1.0 days due to the items noted above. The final co�npletion date is October 23, 2004. Accepted: S.R. WEIDEMA, INC. Approved: CITY OF BROOKLYN CENTER By g Contractor's Authorized Represeiltative City Manager Date: Date: By: Director of Public Works Date: Page 2 City Council Agenda Item No. 7h MEMORANDUM DATE: August 18, 2004 TO: Michael J. McCauley, City Manager FROM: Joyce Gulseth, Public Works Administrative Aide SUBJECT: Resolution Amending Special Assessment Levy Roll Nos. 15997, 15998, 15999 and 16000 to Provide for the Deferment of Special Assessments On March 8, 2004, the City Council by Resolution 2004-40 approved Special Assessment Levy Nos. 15997 and 15998 for the Northport Area Neighborhood Street and Storn1 Drainage Improvements. On April 12, 2004, the City Council by Resolution 2004-55 approved Special Assessment Levy Nos. 15999 and 16000 for the 73 Avenue North Street and Storm Drainage Improvements. The attached resolution amends the respective levy rolls to provide for the deferment of special assessments on two propei�ties where qualifying persons are eligible because they are at least 65 years of age or older and whosehousehold meets certain financial cllaracteristics. Member introduced the following resolution and moved its adoption: RESOLUTION NO. RESOLUTION AMENDING SPECIAL ASSESSMENT LEVY ROLL NOS. 15997 AND 15998 TO PROVIDE FOR THE DEFERMENT OF SPECIAL ASSESSMENTS WHEREAS, pursuant to proper notice duly given as i•equired by law, the City Council has met and heard aild passed upon all objections to the proposed Special Assessment Levy Nos. 15997 and 15998 for the following improvements: NORTHPORT AREA STREET IMPROVEMENTS IMPROVEMENT PROJECT NQ. 2004-01 NORTHPORT AREA STORM DRAINAGE IMPROVEMENTS IMPROVEMENT PROJECT NO. 2004-02 WHEREAS, Special Assessment Levy Nos. 15997 and 15998 were approved by the City Council on March 8, 2004; and WHEREAS, the City Council has established a program to defer a portion of the special assessments of qualifying persons who are at least 65 years of age or older or who are retired due to permanent and total disability whose households meet certain financial characteristics. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center, Minnesota that: l. A certain property owner is eligible to defer a portion of their speciai assessment. Special Assessment Levy No.15997 is llereby amended to reduce the previous amount of $2, 806.00 from the following assessments to the new amount as noted: Pid# Amount 03-118-21-24-0039 $976.00 Special Assessment Levy No.15998 is hereby amended to reduce the previous amount of $892.00 from the following assessments to the new amount as noted: Pid# Amount 03-118-21-24-0039 $282.00 RESOLUTION NO. Date Mayor ATTEST: City Clerk The motion for the adoption of die foregoing resolution was duly seconded by member and upon vote being taken thereon, the following voted in favor ther�of: and the following voted against the same: whereupon said resolution was declared duly passed and adopted. Member introduced the following resolution and moved its adoption: RESOLUTION NO. RESOLUTION AMENDING SPECIAL ASSESSMENT LEVY ROLL NOS. 15999 AND 16000 TO PROVIDE FOR THE DEFERMENT OF SPECIAL ASSESSMENTS WHEREAS, pursuant to proper notice duly given as required by law, the City Council has met and heard and passed upon all objections to the proposed Special Assessment Levy Nos. 15999 and 16000 for the following improvements: 73r AVENUE STREET AND STORM DRAINAGE IMPROVEMENTS IMPROVEMENT PROJECT NO. 2004-06 WHEREAS, Special Assessment Levy Nos. 15999 and 16000 were approved by the City Council on April 12, 2004; and WHEREAS, the City Council has established a program to defer a portion of the special assessments of qualifying persons who are at least 65 years of age or older or who are retired due to permanent and total disability whose households meet certain financial characteristics. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center, Minnesota that: 1. A certain property owner is eligible to defer a portion of their special assessment. Special Assessment Levy No.15999 is hereby amended to reduce the previous amount of $2,806.00 from the following assessments to the new amount as noted: Pid# Amount 26-119-21-41-0107 $1; 908.00 Special Assessment Levy No.16000 is hereby amended to reduce the previous amount of $892.00 from the following assessments to the new amount as noted: Pid# Amount 26-119-21-41-0107 $592 00 RESOLUTION NO. Date Mayor ATTEST: Ciry 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. City Council Agenda Item No. 7i MEMORANDUM DATE: August 17, 2004 TO: Michael J. McCauley, City Manager TROM: Todd Blomstro��1, Director of Pliblic Works SUBJECT: ResolL�tion Providing for Hearing on Proposed Special Assessments for Delinquent Public Utility Service Accounts Attacl�ed for City Council consideration is a resohition ordering a public hearing on Monday, Septenlber 13, 2004 at 7:00 p.n1. or as soon thereafter to hear and pass upon �11 objectioi�s, if a�1y, to the }�roposed special assessn�ents for delinquent public utility service accounts. Property owners witll delinqlient public utilities service accounts l�ave received notice of delinquent accolmt in accordance with the established collection policy aizd have not inade payinent. The proposed levy roll has over 430 entries and is quite lengthy. It will be available for inspectioil Monday night. Futw�e council actions include the public ]�earing at the specified date and adoptio�l of the resolutioi� to certify the special assessment ]evy rolls with Hennepin County. Tl�e interest rate is 5.5 percent, as previotlsly established by tl�e Co�mcil. Member introduced the following resolution and moved its adoption: RESOLUTION NO. RESOLUTION PROVIDING FOR A HEARING ON PROPOSED SPECIAL ASSESSMENTS FOR DELINQUENT PUBLIC UTILITY SERVICE ACCOUNTS BE IS RESOLVED by the City Council of the City of Brooklyn Center, Minnesota that: 1. A hearing shall be held on the 13th day of September, 2004 in City Hall at 7 p.m. or as soon thereafter as the matter may be heard, to pass upon the proposed assessments for the following charges: Delinquent Public Utility Service Accounts 2. The City Clerk with the assistance of the Director of Public Works shall forthwith prepare assessment rolls for the above charges, and shall keep them on file and open to inspection by any interested persons. 3. The City Clerk is directed to cause a notice of the hearing on the proposed assessment to be published once in the official newspaper at least two weeks prior to the heari�g. 4. The City Clerk shall cause mailed notice to be given to the owner of each parcel described in such assessment rolls not less than .two weeks prior to the hearing. Date Mayor ATTEST: Ciry Clerk The motion for the adoption of the foregoing resolution was duly secanded by member and upon vote being taken thereon, the following voted in favor thereof: and the following voted against tlle same: whereupon said resolution was declared duly passed and adopted. City Council Agenda Item No. 8a I Member introduced the following resolution and moved its adoption: RESOLUTION NO. RESOLUTION EXPRESSING APPRECIATION FOR THE DONATION OF THE BROOKLYN CENTER FIRE RELIEF ASSOCIATION IN SUPPORT OF THE ANNUAL HALLOWEEN PARTY WHEREAS, the Brooklyn Center Fire Relief Association has presented to the City a donation of five hundred dollars ($500) and has designated it be used to support the annual Halloween Party; and WHEREAS, the City Council is appreciative of the donation and commends the Brooklyn Center Fire Relief Association for its civic efforts. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center, Minnesota: l. Acknowledges the donation with gratitude. 2. Appropriates the donation to the corresponding activity budget. Au�ust 23. 2004 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. I City of Brooklyn Center A Millennium Community MEMQRANDUM DATE: 8/10/04 TO: Michael J. McCauley, City Manager f FROM: Jim Glasoe, Director of Community Activities, Recreation and Services r(/�'f t SUBJECT: Resolution Expressing Appreciation For The Donation Of The Brooklyn Cen�r Fire Relief Association in Support of the Annual Halloween Party �1 The Brooklyn Center Fire Relief Association has presented to the City a donation of five hundred dollars ($500.00). They have designated that it be used to support the annual Halloween party. The annual Halloween party attracts upwards of two hundred children. The children participate in games and activities; receive prizes and special Halloween treats, all in a safe environment. Staff recommends acceptance of this donation and asks that it be coded to the correspondin g activity budget. 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 Council Agenda Item No. 8b Member introduced the following resolution and moved its adoption: RESOLUTION NO. i RESOLUTION EXPRESSING APPRECIATION TO MARSHALL FIELD'S FOR THEIR APPROVAL OF A GRANT AWARDING THE BROOKLYN CENTER POLICE DEPARTMENT $2,000 FOR THE PURCHASE OF A SURVEILLANCE CAMERA AND ACCESSORIES WHEREAS, Marshall Field's has approved a grant awarding funding to the City of Brooklyn Center Police Department for the purchase of a surveillance camera and accessories and has presented to the City a check in the amount of $2,000 for said purchase; and WHEREAS, the City Council is appreciative of the $2,000 awarded to the City of Brooklyn Center Police Department and commends Marshall Field's for its civic efforts. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center, upon the recommendation of the City Manager: 1. Acknowledges the grant awarded to the City with gratitude. 2. Appropriates the monies from the grant awarded to the police department to the corresponding activity budget. Au�ust 23, 2004 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. I I BROOKLYN �QOOKLYN CElyT POLICE DEPARTMENT POLICE MEMORANDUM TO: Michael McCauley, City Manager FROM: Scott Bechthold, Chief of Police SUBJECT: City Council Resolution to Marshall Field's DATE: August 9, 2004 Attached please find a City Council resolution expressing appreciation to Marshall Field's for their approval of a grant awarding the City of Brooklyn Center Police Department $2,000. The monies will be used by the police department to purchase a surveillance camera and accessories. SB:lch Q TARGET. j��jlt�Q�j�Q�''�/,��� I�'�e�"Vy1L S TARGET FOUNDATION O July 8, 2004 Chief Scott Bechthold Brooklyn Center Police Department 6645 Humboldt Avenue North Brooklyn Center, MN 55430-1853 Dear Chief Bechthold: Target Corporation is pleased to inform Brooklyn Center Police Department that a grant has been approved in the amount of $2,000 for support of a surveillance camera and accessories. The Target Corporation family of giving programs, comprised of Target, Marshall Field's and Mervyn's, is proud to support public agencies and nonprofit organizations such as yours that make our communities a better plaee to live and work. Target Corporation is committed to giving back to the communities in which we operate stores. This year, we will give over $2 million a week to nonprofit organizations nationwide. We would appreciate being identified as Marshall Field's in any announcements or recognition of this grant. We hope this grant will further the important work you do and wish you success in your worthwhile efforts. S� cerel��� C ���Sherry igues Field C dinator Community Relations Encl. check charitable contribution receipt Target Corporation Family of Giving Programs 1000 Nicollet Mall, TPS-3080, Minneapolis, Minnesota 55403 22301 Foothill Boulevard, MS 4790, Hayward, California 94541 City Council Agenda Item No. 8c PROCLAMATION DECLARING SEPTEMBER 12-18, 2004, TO BE PISCAL AND SUPPORT SERVICES WEEK WHEREAS, �iscal an support services provi in our community by the Fiscal and Support Services De�artment have an impact on our citizens' everyday lives; and WHEREAS, the Fisca Support Division provi �or the �iscal management o� all �unds o� the City; processing and maintenance o� all accounting transactions and recorc�s; maintenance and application o� a accountin� policies and procedures; preparation o payro accounts receivable, accounts paya and uti� b�ll in�s; coordination o� annual �inancial auc�it; preparation o� t�e annual �inancial report; anc� analysis and recommenc�ations re�ardin� bond sales, investment pro�rarns, and ris�Z management activities; and WHEREAS, t�e Assessing Division provic�es �or maintenance o� all property recorcls �or the City to inclucle accurate and timely valuation o� all properties; a�ministration and collection o� special assessments; mana�ement o� th property ata system (PDS); preparation anc� recommen�ations �or board o� review activities; and coordination wit� the C'ommunity Development Department to ensure all property improvements are properly recorded; and WHEREAS it is important t�at our community recognize the value o� t�e Fiscal and support Services Department; and WHEREAS, the Fiscal ancl Support Services sta{� contribute to the success o� local �overnment operations and activities, and it is liig�ily appropriate that their services be reco�nized ancl appreciated. NOW, THEREFORE, I, AS MAYOR OF THE CITY OF BROOKLYN CENTER, State o� Minnesota, with the consent an support o� the Broo�Zlyn Center City Council, c�o hereby proclaim the wee� o� September 12 throu�h 18, 2004, to be Fiscal and Support Services Wee�Z in the City o� Broo�lyn Center and encoura�e a citizens to recognize the contributions that the Fiscal and Support Services sta� ma�e every c�ay. Au�u6t 23, 2004 Date Mayor ATI'EST: City C.'ler�Z City Council Agenda Item No. 8d 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: August 17, 2004 SUBJECT: Mayoral Appointment to Financial Commission Financial Commission (one vacancy) The Financial Commission is composed of a chairperson and six members. There exists one vacancy on the eommission due to the resignation of Robert Milne. The expiration of the term is December 31, 2005. Notice of vacancy on the Financial Commission was posted at City Hall and Community Center and on the City's web site and aired on Cable Channel 16 from June 28, 2004, through July 28, 2004. Announcement was made in the July 8, 2004, edition of Brooklyn Center Sun-Post. A letter was sent to tl�ose persons who previously had submitted an application for appointment to a Brooklyn Center advisory commission informing them of the vacancies and requesting that they call the City Clerk if they are interested in applying for either commission. They were given the choice of either reapplying or having tl�eir application previously submitted considered. Notices were also sent to current advisory commission members. Attached for City Council Members only are copies of the applications received: Dan Remiarz 6201 June Avenue North Earl Simons 7201 Knox Avenue North A letter was sent to the applicants notifying them that their application for appointment would be considered at the August 23, 2004, City Council meeting. As requested by the City Council, the City Advisory Commission Bylaws and City Council Resolution Establishing the Financial Commission Duties and Responsibilities are not included in the materials but can be found on the City's web site at www.citvofbrooklvncenter.or� and clicking on Mayor/ Council/ Commissions/ Charter, then Advisory Commissions. The membership roster is also available at this site. Other attachments include: 1) Memorandum from Mayor Kragness indicating her nomination. 2) Procedures for filling commission vacancies adopted by the City Council on March 27, 1995. Recommended Council Action: Motion by Council to ratify the Financial Commission nomination by Mayor Kragness with term expiring December 31, 2005. 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 w zvw. cityo fbrooklyncenter. org 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, Mayo DATE: August 17, 2004 SUBJECT: Financial Commission Appointment As outlined in our policy for filling commission vacancies, I would request ratification from Council Members for the following nomination: Earl Simons 7201 Knox 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 (763) 569-3434 FAX (763) 569-3494 ww w. cityo fbrooklyncenter. org City of Brooklyn Center Procedures for Filling Commission/Task Force Vacancies Adopted by Council3/27/95 The following process for filling commission/task force vacancies was approved by the City Council at its March 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: 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. CO[3I3CIL PROCEDURE3 ESTABLISHED FOR FILLING COMMISSION VACANCIES Cit� Council Agenda Item No. Se G'i1� o! MEMORANDUM an��hLYN C'ENTER DATE: August 16, 2004 TO: Michael McCauley, City Manager I'ROM: Todd Blomstrom, Director of Public Works SUB3ECT: Resolution Authorizing Execution of a Joint Powers Agreenient with the City of Rogers for Cooperative Purchase of Athletic Field Lighting at Grandview Park The 2004 Capital Improvements Ftmd budget includes $338,200 for improveinents to Grandview Park as part of the Earle Brown Elen�entary School site improven7ents. A nlajority of this fw�ding amotiint was included in the budget to provide athletic field 1igl�ting systems� for a soccer field and baseball field that are cui bei�lg constructed within the park. The City of Rogers recently solicited bids fi•om electrical contractors for the installation of athletic field lightii7g. The electrical bid was structured to allow other units of govenlment the opportui�ity to enter into contract with the successful bidder as part of a Joint Powers Agreement with tl�e City of Rogers. The City of Brooklyn Center participated in a sinzilar Joll1t Powers Agreement with the Gity of Rogers in 2001 for tl�e _installatioi� of athletic field lighting at Evergreen Park. On August 10, 2004, the City of Rogers awarded a two-year electrical contract to Electric Systems of Aiioka, Inc. for the sale and delivery of athletic field lighting installations. The City of Rogers also approved Resolution No. 2004-� 1 author�zing the City of Rogers to enter into joint powers agreements far the cooperative purchasing by other units of govenvnent of lighting facilities, scoreboards, and sound systems under the current electrical bid. The estim�ted cost for installation of athletic field ligl�ting for Grandview Park is $145,800 based on the awarded electrical contract fron� tl�e City of Rogers. It may be possible for City staff to negotiate some additional savings in the contract price depending oi� the installation schedule for the lighting systems. Attached for City Council consideration is a resolution authorizing the City of Brooklyn Center to enter into a joint powers agreement with the City of Rogers for cooperative purchase of athletic field lighting at Grandview Park. Member introduced the following resolution and moved its adoption: RESOLUTION NO. RESOLUTION AUTHORIZING EXECUTION OF A JOINT POWERS AGREEMENT WITH THE CITY OF ROGERS FOR COOPERATIVE PURCHASE OF ATHLETIC FIELD LIGHTING AT GRANDVIEW PARK WHEREAS, the City's Capital Improvements Fund budget includes fuiiding for the purchase and installation of atl7letic field lights at Grandview Park in conjunction with the site improvements at Earle Brown Elementary School; and WHEREAS, the City of Rogers has initiated a cooperative purchasing venture for the acquisition of lighting facilities following conlpetitive bidding procedures; and WHEREAS, the estimated cost for said athletic field lights through the cooperative purchasing venture is $145,800 based on the approved site plans on file with the City Engineer; and WHEREAS, the City Council desires to purchase the athletic field lights for Grandview Park through tl�e cooperative purchasing venture with the City of Rogers. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center, Minnesota that the Mayor and City Manager are authorized to execute a joint powers agreement in the name of the City of Brooklyn Ceilter with the City of Rogers for the purchase of athletic field lighting for Grandview Park. 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. f Tabulation of Bids Athletic Facilities Li�htin� Electro Mechanical Shortstop Electric Electric Systems of Contracting Anoka, Inc. Field Type Field Size Maintained Number of Poles Footcandles Football 360' x 160' 50 4 99,252.00 98,485.00 f 94,526.00 Football 360' x 160' 40 4 77,396.00 76,865.00 72,333.00 Football 360' x 160' 30 4 57,453.00 57,960.00 54,201.00 Football 360' x 160' I 50 6 105,988.00 104,800.00 99,989.00 Soccer 360' x 225' 30" 4 72,460.00 72,113.00 69,674.00 Soccer 360' x 225' 20 4 64,724.00 63,809.00 61,061.00 Baseball 325' x 400' x 325' 50/30 S 106,990.00 103,460.00 99,991.00 I Baseball 325' x 380' x 325' 35/25 8 88,280.00 86,424.00 J 82,505.00 Baseball 325' x 380' x 325' 50/30 6 102,875.00 101,161.00 97,977.00 Baseball 325' x 380' x 325' 35/25 6 81,190.00 82,752.00 78,068.00 'I oftball 300' x 300' x 300' SQ/30 6 71,572.00 71,070.00 66,889.00 Softball 300' x 300' x 300' 30/20 6 59,365.00 58,481.00 55,481.00 Softball 280' x 280' x 280' 50/30 6 68,675.00 67,925.00 65,947.00 Softball 280' x 280' x 280' 30/20 6 57,955.00 55,239.00 54,156.00 Softball 280' x 280' x 280' 50/30 4 72,259.00 70,866.00 67,866.00 Softball 280' x 280' x 280' 30/20 4 53,327.00 52,566.00 50,788.00 Tennis 4 Courts 40 4 36,775.00 36,773.00 34,367.00 Tennis 4 Courts 30 4 32,772.00 32,966.00 31,698.00 Tennis 2 Courts 30 4 30,240.00 28,827.00 28,262.00 Hockey 200' x 85' 30 4 30,846.00 30,264.00 29,100.00' Hockey 200' x 85' 20 2 21,085.00 20,049.00 19,704.00 Ice Arena 200' x 85' 80 56,603.00 56,199.00 53,908.00 Ice Arena 200' x 85' 50 49,258.00 48,525.00 46,884.00 G�nnasium 3 Courts ?5 48,301.00 47,141.00'� 46,444.00 Gymnasium 3 Courts 50 41,052.00 39,796.00 38,637.00 Spill and Glare Per Fixture 125.00 130.00 115.00 Control X 80 1,586,798.00 $1,564,646.00 $1,�;00,871.00'� 08/17/04 TUE 11:34 FAa 612 428 4470 CITY OF ROGERS [�002 CfTY OF ROGERS COUPERATNE PURCNASING 1. JOWT EXERCISE OF POWERS (Minnesota State Statute 471.59) WITNESSETH_ WHERFJAS, pursuant to Minnesota Statutes Section 471.59 (Joint Exercise of Powers), the City of Rogers has the legat authorrty to errter intd an agreemerTt, through adians of their goveming body, to jointly or cooperatively exercise any power common to the contracting powers or any similar powers, including those which are the same except for territorial limits within which they may be exe�cised; and WHEREAS, the parties to this agreement are of the opinio� that the fotmation of this ag�eement to administer the terms of this agreement are in the best interest of their respective govemmental units; NOW, THEREFORE, IN CONSIDERATION OF THE MUTUALPROMISES AND AGREEMENTS CONTAINED HEREIN, THE PARTIES DO AGREE AS FOLLOWS: This proposal, is a contract that may be applied to other govemmental units for the purchase of additional quantities of the equipment specfied in this proposal in accordance with Minnesota State Statute 471.59 .loint Exercise of Powers, and State Statute hereby included in and a part of this proposal. In the event the City of Rogers enters an agreement with other govemmental units for the purchase of additianal equipment all aspects of this p�oposal shall apply unless otherwise stated by the bidder in an attachment affixed with this proposal. Instructions to Bidder of these General Provisions. Any applicable reference to the City of Rogers in this proposal shall apply to any other govemmentaF unit(s) entering an ag�eement with the City of Rogers and any applicable refe�ence to govemmental unit(s) in this proposal shall apply to the City of Rogers, in accordance with these gene�al provisions. 2. BIDS AND AWARDS !t is understood and agreed that the City of Rogers, pursuant to the terms of the Agreement and in acc,ordance with its established practices and the laws goveming purchases by the City of Rogers, shall solicit bids, and shall tabulate, evaluate, and discuss with any other govemmental unit that may enter into this Agreement or a substantiafly similar agreement with the City of Rogers, all bids ���_�ivev purs�aa�# s«ch �r t,??� �f �c�c��� �h�l� ��k� an award on behatf af itsei� and d�l �uct Farticipdti��g gove,�me►�tal ��i#� Y� the lowest responsive, responsible bidder responding to the solicitation for bids upon �majority agreeme�t of the authorized representative of a11 such participating govemmental units. This award shall establish the prices and estimated quantities to be purchased by each of the parties hereto included in such award in accordance with this Agreement. 17 08/17/04 TUE 11:36 FAX 428 4470 CITI OF ROGERS �]003 1 The pa�ties shall be liable for any osde� placed by them in accordance wrth this agreement, but shall not be liable for any othe� sums_ 3. ORDERS. DELNERY. AND PAYMENT, After the award is made tor the estimated quantities of items, designed pursuant to this Joint Powers agreeme�t, each of the parties her�eto agrees to order from the successful bidder such quaritities as shail be consisUent with its needs. Each party agrees to make arrangements wrth the succ�essful bidder for ordering, deiivery, shipment, and payment with cespect to the items it wishes to order. Ait disbursements of public funds by any of the pacties in payment for such items shal{ be made in accordance with all laws of the State of Minnesota and of the party making such disbursement. All Pa�ties must provide for the strict accountability of all funds ernptoyed hereunder, in accordance with the rules and regulatio�s such party ordinarity applies with respect to such funds_ 4. LlAB1LITY OF THE C1TY OF ROGERS The City of Rogers shall endeavor in good faith to maintain a high degree of efficiency with respect to any services provided hereunder; however, the sole and exclusive remedy for any breach of this agr�eement by the City Administrator and the City of Rogers' tiability of any kind whatsoever, including but not limited to liability for late, negligent or nonperformance or fo� any respect regarding its he�ein obligations, shall be limited to correcting diligently any such deficiency as is reasonably possib4e under the pertinent circumstances. Fu�thermore, the City of Rogers does not warrant pr4duct quality or service. If lower prices are offered to Political Subdivisions by a vendor on subsequent annual contracts or price agreements, that same pricing structure must be extended to the City of Rogers on existing comparable contracts which the vendor may have in effed with the state of the time. Failure to comply may result in cancellation of the State. Additional surety bond(s) in the amount of no less than 5% of the amaunt of the price quoted for this unit shall be required at the discretion of any other govemmental unit entering into this agreement for equipment ordered_ Said bond(s) shafl be delivered within 10 calendar days of placement of order. It is the City of Rogers intent that the duration of fhe Cooperative Purchasing or Joint Powers provisions of this Co�tract be from the initial purchase order date to a period of 36 months. A�reements entered into under this law must be by an action, normalfy a resoiufiiur�, or the goverr�i�g �iociy ofi the city saliciiing th� bid or quotat�4n, a� t`�� goveming body of the city wishing to make the purchase under the bid or quotation_ A copy of a resolution is supplied for an example. 18 OS/17/04 TUE 11:5� FAX 612 428 4470 CITY OF ROGERS t�li.uty COOPERATIVE PURCHA.SE AGREEMENT TIIIS J�INT P�WERS AGR.EEMENT made as of 2004, by and between the City of Rogers, a Muznesota municipal corporation ("Rogers") and ("Authorized Governrnental Unit"). RECITALS The parties recite and declare: A. The City of Rogers has entered into a.n Agreeme�at (Supply Contract) relating to the acquisition of lighting facilities following competitive bidding. �ogers and the Authorized Goverrunental Unit under Minnesota Statute 471.59 wish to combine their purchasing functions as specifically pzovided below, so that the authorized govenunental uzut may avail itself of the prices that have been agreed upon by the City and its vendor. In consideration of the mutual covenants contained in this Cooperative Purchase Agreement the parties agree as follows: 1. Tenn. This joint power agreement shall be effective on the date Rogers obtains the signature of the Authonized Goverrunental Unit, but shall in no event to be in force and effect no latex than August 10, 2005. The parties understand and agxee that the Authorized Governniental Unit may purchase lighting faciliries as anore particularly described in that certain resolution of the City No. 2004-69 relating to purchasing lighting facilities from Electric Systems of Anoka, Inc. (hereinafter "Electric"). 2. Use of �'otms. To purchase ligliting facilities under the City's contract with Electric, the Authorized Gover-runental Unit shall issue a purchase order in accordance with the terms and conditions of the contract with Electric and any requirements applicable to the Authorized Governmental Unit's governing body. The Authorized Governmental Unit shall send purchase order(s) directly to the vendor (Electric} and will make payments directly to the vendor in accordance with its established procedu.re and terms of the Rogers contract. The Authorized Governmental Unit will not use the goods available under the City's contract with Electric for puzposes of resale and the Authorized Governmental Unit must be the end user of the goods purchased. 3. Liability. The Authoz Governznental Unit agrees that neither Rogers nor its employees personally assume responsibility or liability for any amounts due or claimed to be due, pursuant to any purchase ordet entered or issued by the Autl�orized Governmental Unit. The Autl�orized Governmental Unit will indemnify, common save and hold harmless the City and its employees from any loss, damage, or. expense, including payment of attomey fees allowable by law, which arise or may arise from the Authoiized Governmental Unit's use of this joint power agreement and from any dispute or claim arising from any transaction between the authorized goveminental unit and Electric, whether or not the loss, damage, 08/17/04 TUE 11:51 FAX 612 428 4470 CITX OF ROGERS l�0'LO dispute; or claim arises during half the period of this joint powers agreern;ent_ The City's liability will be governed by provisions of Mi.nnesota Staiutas. IN WITNESS WHEREOF, the parties have caused this CoopeFative Purchase Agreement to be executed effective as of the day and yeaz first above written. (Authorized Governmental Unit) By Its By Its CITY OF ROGERS By Leigh J_ Stanley Its Mayor By Stacy Doboszenski Its Ciry Clerk STATE OF MINNESOTA S5 COUNTY OF HENNEPIN The foregoing instrument was ackn.owledged befoze me this day of 2Q04, by Leigh J. Stanley, the Mayor and by Stacy Doboszenski, the City Clerk of t}�e City of Rogers, a municipal corporation under the laws of Minnesota, on behalf of said Municipal Corporation. Notary Public County, MN 08/17/04 TUE 11:52 FAX 612 428 4470 CITY OF ROGERS 1�021 STATE OF MINNESOTA ss COUNTY OF HENNEPIN The foregoing instrument was acknowledged before me this day of 2004, by the and by the a f (Authorized Governmental Unit), a coiporation under the laws of Minnesota, on behalf of said corporation. Notary Public Counry, MN City Council Agenda Item No. 8f MEMORANDUM TO: Michael J. McCauley, City Manager FROM: Ronald A. Warren Plannin and Zonin S ec' list g g P SUBJECT: An r O dmance Amendin Cha ter 35 of the Cit Ordinances Re ar g p y g ding Flood Plain Management DATE: August 17, 2004 On the August 23, 2004, City Council agenda is consideration of a first reading of An Ordinance Amending Chapter 35 of the City Ordinances Regarding Flood Plain Management. This ordinance amendment was reviewed and recommended by the Planning Commission at their meeting on August 12, 2004. The Federal Emergency Management Agency (FEMA) is requiring that all communities adopt Flood Plain Management measures that satisfy the requirements of the National Flood Insurance Program (NFIP). The main reason for this mandate is that updated flood plain maps and a new flood insurance study for Hennepin County have been completed and must be incorporated into our Flood Plain Management Ordinance. Other than the adoption of the new maps and the study, the other changes required do not seem substantive. These changes are primarily housekeeping matters along with clarifying definitions and additional requirements and findings for variances to be granted. These flood plain ordinance changes are required to be effective by September 2, 2004, which is the effective date of the new flood plain maps and study. If the mandatory amendments are not adopted by September 2, the City risks suspension from the National Flood Insurance Program. If this ordinance amendment follows the normal ordinance adoption process beginning with the first reading on August 23, 2004, it will become effective on October 23, 2004. If the City chooses to adopt a short term moratorium on development in the city's special flood hazard areas until the mandatory revisions become effective, persons within the city will still be eligible far flood insurance during that time. The City Attorney is preparing an emergency ordinance which, if adopted on Monday evening, will become effective on August 30, 2004. The emergency ordinance, establishing the moratorium on development in flood hazard areas would be for 60 days and wauld coincide with the October 23, 2004 effective date for the Flood Plain Management Ordinance Amendments. Attached for the Council's review is a copy of Section 35-2100 through 35-2220 of the City Ordinances, which is the Flood Plain Management Ordinance, a memo to the Planning Commission relating ta the Flood Plain Amendments and a copy of the Planning Commission Minutes from August 12, 2004 relating to their consideration of this matter. It is recommended that the City Council have a first reading on the Ordinance Amending Chapter 35 of the City Ordinances Regarding Flood Plain Management and also adopt the emergency maratorium ordinance prepared by the City Attorney. MEMORANDUM TO: Plaruiing Commission Members FROM: Ronald A. Warren, Planning Commission Se tary -�-t .�:�J DATE: August 12, 2004 SUBJECT: Flood Plain Ordinance Amendments The Federal Emergency Management Agency (FEMA), along with the Minnesota Department of Natural Resources (MnDNR), are requiring that all communities adopt flood plain management measures that satisfy the requirements of the National Flood Insurance Program (NFIP). The primary reason for such a mandate is that updated flood plain maps and a new flood insurance study for Hennepin County have been completed and must be incorporated into our Flood Plain Management Ordinance. Some additional mandatory language relating to flood plain management is also required to be adopted. These flood plain ordinance changes are required by FEMA to be effective by September 2, 2004, the effective date of the new flood plain maps and study. Other than the adoption of the new maps and the study, the changes to the ordinance do not seem substantive. The changes seem merely to be housekeeping matters along with clarifying definitions. Nevertheless, they must be effective by September 2, 2004, or the City risks suspension from the National Flood Insurance Program on that date. Our ordinance adoption process will take us beyond that September 2 date. Therefore, we, as well as many other cities in the county, face two options. Either let the program be suspended ar adopt a short term moratorium on development in the city's special flood hazard areas until the mandatory revisions become effective. If the latter option is chosen, persons will still be eligible for flood insurance during that time. If the ordinance amendment follows a normal course, it will be on the Cit Council a enda far Y g first reading on August 23. Second reading, public hearing and adoption would be scheduled for September 13, 2004. The effective date of the ordinance, if adopted, is 30 days following its publication (September 23, 2004), or October 23, 2004. CITY OF BROOKLYN CENTER ORDINANCE NO. INTERIM EMERGENCY ORDINANCE REGARDING DEVELOPMENT IN THE CITY'S FLOODPLAIN AREA ESTABLISHING A MORATORIUM TO ENACT REQUIRED OFFICIAL CONTROLS THE COUNCIL OF THE CITY OF BROOKLYN CENTER ORDAINS AS FOLLOWS: Section l. BackQround. 1.01. The City wishes to temporarily prevent development in the City's floodplain area until it has an apportunity to revise its official controls required by the state and federal government. 1.02. The City wishes to maintain its eligibility in the National Flood Insurance Program, which requires participating communities to adopt and enforce floodplain management regulations meeting minimum federal and state requirements in return for federally-backed flood insurance being made available throughout the community. 1.03. The City of Brooklyn Center voluntarily participates in the National Flood Insurance Program. 1.04. Minnesota Statutes, Section 462.355, Subd 4 allows the City to adopt an interim ordinance for the purpose of protecting the planning/zoning control process and the health, safety and welfare of the citizens. 1.05. City Charter section 3.06 authorizes the Council to adopt emergency ordinances. Section 2. Findin�s. 2.01. The City Council finds it necessary to have an opportunity to review and amend its official controls as they relate to land use development within certain areas of the community prior to the time it must make decisions on develapment within those areas. 2.02. The City Council finds that the adoption af an interim ordinance for the described area is essential to enable it to preserve the planning/zoning control process and to protect the health, safety and welfare of the citizens of the community. 2.03. The National Flood Insurance Program regulations require that an updated floodplain management ordinance be adopted by September 2, 2004 or the community will be suspended from the program for failure to adopt the necessary regulations and such suspension would mean an unmediate loss of flood insurance benefits to the community and perhaps an increased exposure to flood risk. ORDINANCE NO. 2.04. The City will not ha�e time to adopt the required amendments to its floodpiain management regulations in accordance with the requirements of its charter for the adoption of ordinances. Therefore the Council fmds that there is a need to adopt an emergency interim ordinance to preserve eligibility of properties in the city for the benefits of flood insurance. Section 3. Duration. 3.01. The City Council deems it in the best interest of the community to adopf a temporary emergency moratorium on all new development in the identified Special Flood Hazard Area shown on the Flood Insurance Rate Map, dated September 2, 2004 until the sixty first day following adoption of this ordinance so as to maintain this community's eligibility in the National Flood Insurance Program until such time as an adequate floodplain management ordinance can be adopted by the City Council. 3.02. For the purpose of this moratorium, "development" shall mean new building construction, placement of manufactured or modular structures and recreation vehicles, substantial improvements or substantial repairs to existing structures, filling, paving, mining, excavating, dredging, and similar activities, utilities, levee, dike, or darn constnzction, and any other activity that may change the course of surface waters. For the purposes of this moratorium, "Special Flood Hazard Area" shall mean that area subject the base flood as shown on the Flood Insurance Rate Map Hennepin County, Minnesota all jurisdictions and specifically map nuriibers 27053C 0203 E, 27053C 0204E, 27053C 0208 E, 27053C 0209 E, 27053C 0212 E and 27053C 0216 E, all dated September 2, 2004. Section 4. Enforcement. 4.01. The City may enforce this ordinance by mandamus, injunction or other appropriate civil remedy in any court of competent jurisdiction. Section 5. Senarablitv. 5.01. Every section, provision and part of this ordinance is declared separable from every other section, provision and part of this ordinance. If any section, provision or part of this ordinance is adjudged to be invalid by a court of competent jurisdiction, such judgment sha11 not invalidate any other section, provision or part of this ordinance. Section 6. Effect on Pendine Anvlications. 6.01 All applications subject to this moratorium that are pending or that are received during the time this ordinance is in effect shall be deemed to be denied for purposes of Minnesota Statutes, Section 15.99. The City Manager shall cause notification of such denial to be given to all applicants stating the adoption of this ordinance as the reason therefor. Fees paid in connection with such applications sha11 be returned or refunded to the applicant. ORDINANCE NO. Section 7. Effective Date. 7.01. T'his Ordinance shall take effect upon its adoption by the City Council and its publication in the City's official newspaper. Adopted this day of 2004. Mayor ATTEST: City Clerk Date of Publication: Se tember 2 2004 P Effective Date: September 2, 2004 CITY OF BROOKLYN CENTER Notice is hereby given that a public hearing will be held on the 13�' day of September, 2004, at 7:00 p.m. or as soon thereafter as the matter may be heard at City Hall, 6301 Shingle Creek Parkway, to consider an Ordinance Amending Chapter 35 of the City Ordinances Re ardin Flood Plain g g Management. 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 CHAPTER 35 OF THE CITY ORDINANCES REGARDING FLOOD PLA1N MANAGEMENT THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER DOES ORDAIN AS FOLLOWS: Section 1. Chapter 35 of the City Ordinances of the City of Brooklyn Center is hereby amended in the following manner: �e�tinn �S- .11 STATtTTORY AUTHORIZATIQN, FINDINGS OF FACT AND PURPOSE. 2. Findings of Fact c_ Natinnal Fln�cl Tn�uran�P Prngram ('�m�ncP This nrdinance is aci�nted t� cn�1v �x�ith the n�lea anc� r.gnlati�n� �f the Natinnal Fln�r] Tns»ran Prnrrram cndifiec� as 44 C',nc�P nf F d ral RP�ilatinn� Pa,-t 59-7R, as amenc�Pd, S� as tn maintain the r.nmmnnitv'� Pligihili in the Nati�nal Finnc� Tn�nranc Prn�uram S�� 5-� 12Il. GENERAL PROVISIONS. 2. Establishment of Official Zoning Map The Official Zoning Map together with all materials attached thereto is hereby adopted by reference and deelared to be a part of this ordinance. The attached material shall include the [�`I����c� �k����°��r�c:� �;t��c1� f:.>r t(�ti �:it�,- ial° ���•��c�I�.l�z� �:`�.�t�t° }���.�:���ec� 1�� 21��: c:�i°r��� I�a.���•�u��;� ;�c����.i.��:i�tr��ti��n �G��vc� 1�et�� 7, .1 ���2, ��cf thc l°':�����c� �:3c:}�.�:���<tr� ���i ��'1��c��3���aL� :�•1����: a��c� �'lc�i�� tz�.�u��anc� IZatc t(�erc�z��, all �s�ae:�a�i�:.c� the; ct�t�t�;:1��.c� :1���s�:��c����r�t 1. �Sre����rc�I l3t�rr :E:.���i���;�:� Fln�d Tn�urance St��c� V n1nmP 1 nf 2 and V�lnm? rZf 1ie,nnP C:ni�nt„ Minnes�ta, all �urisrlictinnS and th Fl�nci Insurance Rate Ma�.�anel� numhererl �7�5�(`�?0� F, �7f15�('(l?�4 F, ?7�5��' �7�5�C'.(12�9 F., �7S1S'�C �7(1S�f F, f�r th .(':it� nf Rrn�kl;m (�'PntPr, dated Se t emher 2�p4 as dPVelnnec� h�✓ the Federal FmPr�.en�v Mana¢ement A Pnsv —o—�- The Offieial Zoning Map shall be on file in the Office of the City Clerk and the Zoning Administrator. I ORDINANCE NO. 8. Definitions Unless specifically defined below, words or phrases used in this ordinance shall be interpreted so as to give them the same meaning as they have in common usage and so as to give this ordinance its most reasonable application. T,�we�t Flnnr the lnwect fln�r nf the lnwe�t en .l�S .d ar (inch�din hasPmentl An unfinished �r flnnd rP�i�tant n lntnr n�ecl Cn�PI� f �T rking �f vehicle� hn,� il�lino ar.r.ecs nr �t�rage in an ar .a nther than a h S m nt ar a n�t ��nSiclered a h�iildin �)WP.C flnnr Mant�fact��r .d N�me struch�re,�ran�nnrtahle in nne �r m�re secti�n� which is huilt �n a nermanPnt chas�i� anci iS d�i�ned f�r i��P w�th �r withnnt a I nPrmanPnt frnmdati�n when attacherl tn the rennirerl nt;l;t;P.c The term "manufactnrPCi hnm ct�es nnt incl �d th term "recreati�nal vehicle_" Recreati�nal V.hic1P a vehicle that is hi�ilt �n Singl ..e chassis, is�nar f.et nr ]ecc when measured at the large�t hnri�nnta r' 'nn, is de�io ed tn hP �elf-nrnn 11 d �r nermanentl� t�wahle h� l�i ht dii tn�ck, aY1CI 1C C�PSIa eci n_ r�v nnt fnr nSe aS a nermanent dwelling hnY a� temn�rary living anarterS fnr recreati�nal tr avel nr seas�nal iacP F�r the nnrnnses nf this nrc�inance, the term recreatinnal vehicle Shall h �n��n�us with the term travel trailer/trav .1 v.hi .1 �nhstantial 1�amaoP meanS damas�P �f an� �ri�in ���tl ainPd h� a�tn��h�re wh r thP c�st nf rPStnring the stn�ct�rre tn it� hef�r c�amaued c�ndi inn wnnlc� eaual nr ex d 5� �cent nf the m rk .t valuP nf th fir h fnr th dama P �cci�rrPd Suh�tantial imnr�vement —�xrithin an c�n� ..i�tive '�fi5-��neri�d, any r.c�nstn�c i�n� rehahilitatinn �including n�rmal maintenan and r.nair�, re after damau� �r nther imnrnvement nf a strnnfi�re� the r.�st nf which eanals nr exceeds S�� .r ..n nf the market valuP �f the �tn� .h�r h fnr the "ctate �f c�nstn� ,tinn" nf the imnr�vement_ Thi� tPrm incli�cle� �tn�ct��rP� which have inclirrer] "�i�h�tantial damag regardlesS nf the a�t��a� air wc►rk nerfnrmed_ The term d�e� n�t, h�wever,jn lnd ither• 2 An v�n�ect f�r i�nrnvement nf a stn�ch�re tn c�rrect exiStina vi�lati�n� �f StatP nr lc►cal health, sanitar„ nr �af c�de Snecificati�n� which have h.Pn id ntifi h� the l�cal c�de enfnrcPment nfficial anrl whi .h ar hP minimmm �e�P�eary tn a��nre safe living cc►nditinns. ORDINANCE NO. h An� alterati�n nf an "hi�tnri Stn�ct��rP nrovidec3 that the alterati�n will n�t nr�einciP the Stn� t�rrP'� �ntinnecl d�i�natic�n aS an "hi�tnrie �trnM Fnr th� nmm��e �f this (�rdinan e, "hi�t�ri h�rP" chall he as clPfinecl in C:nc� �f F.c� xal R.gnlati�n�, Part 59 Sectinn �5-21 ESTABLISHMENT OF ZONING DISTRICTS. 1. Districts a. Floodway District The Floodway District shall include those areas designated as floodway on the [I'1������ �3��!�r���;���• a��c� 1�'(c��?c������ ?��1<���] Fl��c� Tn�»rance RatP Man adopted in Section 35-2120.2. b. Flood Fringe District The Flood Fringe District sha11 include those areas designated as floodway fringe on the [(�I�?�.�c� 1:����:€�c�a�°�. a��ci IA'I�.3c�c�1���z�• :�-�:a�� Fln�d Tn�nranc Rat Mar adopted in Section 35 2120.2 as_he.in within 7.nne AF, 7.nne An nr 7.nn AH hnt hPino lneatec� �ntSicle nf thP flnnd�x�av c. General Flood Plai n Distnct The General Flood Plain District shall include those areas designated as �t�r1�t��t7�he't'c:c� s� �,C3t��� 7.nne A nr 7,nnP� AR. 7.�ne A(�, nr 7,�ne AH withn»t a fJa4sLt�a� on the Flood Insurance Rate Map adopted in Section 35-2120.2. 2. Compliance b. Modifications, additions, structural alterations, n�rn,al mainte.nance and r nair, or repair after damage to existing nonconforming structures and nonconforming uses of structures or land are regulated by the general provisions of this ordinance and specifically Section 35-2200. 5��5-�L44. FLOODWAY DISTRICT (FV�. 4. Standards for Floodway Special Uses e. Accessory Structures ORDINANCE NO. 3) Whenever possible, structures sha11 be constructed with the longitudina.l axis parallel to the direction of flood flow; and, (c) Accessory structures shall be elevated on fill or structurally dry flood- proofed in accordance with the FP-1 or FP-2 flood-proofing classifications in the State Building Code. As an alternative, an aecessory structure may be flood-proofed to the FP-3 or FP-4 flood- proofing classification in the State Building Code provided the accessory structure constitutes a minimal investment, does not exceed 500 square feet in size, and for a detached garage, the detached garage must be used solely for parking of vehicles and limited storage. All flood-proofed accessory structures must meet the following additional standards a����r�����•iate�: (1) The structure must be adequately anchored to prevent flotation, collapse or lateral movement of the structure and shall be designed to equalize hydrostatic flood forces on exterior walls; and (2) Any mechanical and utility equipment in a structure must be elevated to or above the Regulatory Flood Protection Elevation or properly flood-proofed. i T� allnw fnr thP Pnuali�ati�n �f hvdr�static »ressi�re mnst he a minimum nf twn "autnmatic" n eninus in the nntSid wall� nf th �tn�ctnre havin¢ a t�tal net area nf n�t lecc than �ne snuare inc.h f�r ever�� �are fnnt nf enclnsed area �uh�ect tn fl��din.g_ There mn�t he c► e}z ni�n¢s �n at lea�t twc► �icle� �f the �tn�eh�re anc� h. b�ttc�m nf all ening� mnst he nn higher than nne fn�t ah�ve the l�we�t aci�a�Pnt gr c� tn th stni .turP. T J�in� hliman interventi�n t� nne�n a,g ra a c��nr nrinr tn flnndinn will nnt �atisf; th�_ 'S r�iiirement fc►r autnmatie �n�nin$� S�tiQn_.�5-� 1.�4_ FLOOD FRINGE DISTRICT (FF). 4. Standards for Flood Fringe Special Uses: ORDINANCE NO a. Alternative elevation methods other than the use of fill may be utilized to elevate a structure's iowest floor above the Regulatory Flood Protection Elevation. These alternative methods may include the use of stilts, pilings, parallel walls, etc., or above-grade, enclosed areas such as crawl spaces or tuck under garages. The base or floor of an enclosed area shall be considered above-grade and not a structure's basement or lowest floor if: 1) the enclosed area is above-grade on at least one side of the structure; 2) is designed to internaliy flood and is constructed with flood resistant materials; and 3) is used solely for parking of vehicles, building access or storage. The above-noted alternative elevation methods are subject to the following additional standards: (1) Design and Certification The structure's design and as-built condition must be certified by a registered professional engineer or architect as being in compliance with the general design standards of the State Building Cade and, specifically, that all electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities must be at or above the Regulatory Flood Protection Elevation or be designed to prevent flood water from entering or accumulating within these components during times of flooding. (2) Specific Standards for Above-Grade, Enclosed Areas Above-grade, fully enclosed areas such as crawl spaces or tuck under garages must be designed to internally flood and the design plans must stipulate: a) [`�1��:] A minimum area of "�ntnmatic" openings in the walls where internal flooding is to be used as a flood proofing technique. [��'��ez� �:��=�,r�..i���;� as�e �1G�c��� iz� xc �tr��ct���•�°'s L�G��.(;� i:c� }���c��,�c�� �c�r e;z�i:r c>�":I�e:��>c1 L�Et#�:r� �:i� ���tzs:tlz�� ��t'e.<,;;tt�'�;� There Shall he a minim�im �f twn �nT ing,, c►n at lea�t twn sid s �f the �tn� .rnr anc� the bottom of all openings shall be no higher than one-foot above grade. T}�. ai�tnmatic �neninac chall ha�,P, a. minimum net arPa nf nnt lecc t� �p��tiare inch fnr every �,n fn�t s»hiect tn fl��eling unle�c 3 re�istered nr�fes�ic►nal en�ineer nr �rchitect certifies that a smaller net area w�nlc� snfficP. The ant�matic openings may be equipped with screens, louvers, valves, or other coverings or devices provided that they permit the automatic entry and exit of flood waters withc,_ ��t a� f�rm nf hnman interventi�n; and b) That the enclosed area will be designed of flood resistant materials in accordance with the FP-3 or FP-4 classifications in the State Building Code and sha11 be used solely for building access, parking of vehicles or storage. ORDINANCE NO. 5. Standards for All Flood Fringe Uses: b. Commercial Uses accessory land uses, such as yards, railroad tracks, and parking lots may be at elevations lower than the Regulatory Flood Protection Elevation. However, a permit for such facilities to be used by the employees or the general public shall not be granted in the absence of a flood warning system that provides adequate time for evacuation if the area would be inundated to a depth and velncit� si�ch that wh n mi�lti}��ing the cienth (in feet) timP� vel�citT fin fe ner �P�nn�ll the nr�dnct m�mh r exc d� frn�r (41 ��.�t�s'.z�tt;€° tI�<��t t��<�� ��r �t�1.����t 15� 1������� itte� ��•e�te;r tl�.��� .f:t��r f:w� t ��r �;�;c°c�z��i] upon occurrence of the regional flood. S.�ti�.� 5-� 12Q. ADMINISTR.ATION. 2. Permit Requirements: a. Permit Required. A Permit issued by the Zoning Administrator in conformity with the provisions of this Ordinance shall be secured prior to the erection, addition, m�dificati�n, rehahilitatinn (incll'clin� nnrmal maintenance and a�, or alteration of any building, structure, or portion thereof; prior to the use or change of use of a building, structure, or land nri�r tn the c�nstn�cti�n nf a c�am, fencP, c,r e,n-si e sPnti�, �.��t� prior to the change or extension of a nonconforming use; =rinr t� the re�air �f a stn�chire th t has heen dam u_PCI� fln�d t�rnac3�, nr an� nther snnrce; and prior to the placement of fill, excavation of materials, or the storage of rnaterials or equipment within the flood plain. r N�tificatinn� f�r Water �nr� AitPrna innc The 7�nino Administratnr �hall n�tifv, in riv .rin sit ti��,�acent cnmm»nities and the C'nmmiSSi�ner �f the T�enartment nf Nat��ral R.�rn�r e� nrinr t� the cnmmnni anthnri�ing� alterati�n nr relncatinn nf a watPrrni�r�e Tf th annlicant ha� annliPrl fnr a nermit tn wnrk in the hecl� nf nnhli waters nnrsnan tn Minne��t� S atirt �'hanter 1 �3C"r, thi� �hall �nffir.P ac ar�Pni�ate nntic�P tn thP ('nmmisGinn x nf Natural ReS�nrcec A r.nny nf said nc►tificati�n shall a1Sn he snhmittPd t� th C:hicaan Regi�nal (�ffice nf h F.dPr l Fm rgenc� AgPTI(`v (FFMAI_ N�tificatinn tn FF.MA WhPn Ph�cical C',ha TnerPace nr T�e�reacP thP nn_ �ear �Fl�nri F,levati�n_ A� sn�n ac is,�.ZTacticahle, nnt later than �ix m�n h after the date �i�ch cun= �rfin� inf�rrrtati�n hecnmea availahlP, the� 7nnin.� Administratrn shall n�tifv thP C hi�,g� Reginnal nffice nf FF.MA nf thP �aPC hy �uhmittinu as�y nf �aid tPChnical �r S�ientific dat�_ ORDINANCE NO 3. Board of Adjustment: c. Variances. The Board may authorize upon appeal in specific cases such relief or Variance from the terms of this Ordinance as are consistent with the provisions of Section 35-240 of the Zoning Ordinance. In the granting of such Variance, the Board of Adjustment shall clearly identify in writing the specific conditions that existed consistent with the criteria specified in Section 35-240 which justified the granting of the Variance. No Variance shall have the effect of allowing in any district uses prohibited in that district, permit a lower degree of flood protection than the Regulatory Flood Protection Elevation for the particular area, or permit standards lower than those required by State law. The f�llnwin� additinnal v�riance criteria nf the Federal Fm rg .n�r.� ManagemPnt AgPs� mn�t hP �ati�fied• �l Varian�PC chall nnt he i��uPCi h� a cnmmi�nity �uithin an� d.�ignat� regnlat�rv fl��dwa3� if an3� increase in flnnd level� dnring the haS flnncl �lis .har e wrn�ld result_ Variance� �hall nnlv hP. i�st��]?y a cnmmimit� unnn a�hnwing nf gn�cl and st�fficient canse, (ii) a determinati�n that failnre t� o ant the varianc �uld resiilt in excentinnal hard�hin tn the annlicant, and iiL)__a determinatinn that h urantin� nf a variancP ��ill n�t result in increasecl fln�d heightS, aciditinnal thr t� tn �,lhlir cafel��, extra�rc�inar� rn �hli� exn .nS create nnisan calite franc� �n nr victimi�ati�n nf th �nnhlic, �r cnnflict wj�h exiSting l�cal laws nr nrclin n. �l VarianceS shall �nl� hP issn .d i�nnn a dPterminatinn that th variancP is the minimum n..e�sar�,t,snn�irlerin�the flnod ha�ard, t� aff�rd rP1iPf S�r �5-��nQ NONCONF�RMING USES IN THE FLOOD HAZARD ZONES. 1. A structure or the use of a structure or premises which was lawful before the passage or amendment of this Ordinance but which is not in conformity with the provisions of this Ordinance may be continued subject to the following conditions[;]_ Hist�ric Stn�rP� a� c]efined in �eetinn '�5-�l R nf thi� (�rclinanr.e chall he sii 'eet tn the nr�visinns �f .tinn �5-���n, 1 a-1� ORDINANCE NO. b. Any srr��ct,�rai alteration or addition to a nonconforming structure or nonconforming use which would result in increasing the flood damage potential of that structure or use shall be protected to the Regulatory Flood Protection Elevation in accordance with any of the elevation on fill or flood-proofing techniques (i.e., FP-1 thru FP-4 flood-proofing classifications) allowable in the State Building Code, except as further restricted in Subsection c below. e. If any nonconforming use or structure is [�����•c��i:� ���r i��;�i�.�i���. ��.ixi.�{.�:i �zt"1 Y.:y��:;i�:� :��.�i �?�'I'i;��l� �3I' 111t;��"€:, i}.�i� i�_*i �tst�'�i�`C �%i3�l�t% i'�� ��7.0 �[xzlf,`; C`e�` ��=�:��s°�.t�;#:t�?�?� �ub�tantially �amag�� a� clefinerl in tinn �5- 1 R nf thi� nrdinattce, it shall not be reconstructed except in conforrnity with the provisions of this Ordinance. The applicable provisions for establishing new uses or new structures in Sections 35-2140, 35-2150, or 35-2160 will apply depending upon whether the use or structure is in the Floodway, Flood Fringe or General Flood Plain District, respectively. f_ Tf a snhstantial 1T7111T(1VPmPll1 nr�»rc a� �E'finaii eP�+;..,, zc_���n Q �f this (�rrlinanr.P, frnm any cnmhinatinn nf a hnildinu additi�n tn th nnt��•�P tlimen�inn� nf the Pxi�ting h»i 'idin� nr a rehahilitati�n, rPCnn�tn� tic►n, altPrati'nn, Qr �ther imnrnvemPnt tn thP �nc;�P rlimPncinnc ..f a„ PV;�t;,, n�n��nfn� ���i;� hnilcling, then thP hnilding additinn r nnirPd h� SPCtinn �5_����hl ahnvPl anc� the PxiStin n�nrnnfnrmin� hnilciin.g�.muGt meet the reanirements nf �ti�n �5-2 nr �5 Sn nf this Orciinance fnr nPw ctructure�, �ne. i�nnn wheth r th Strii tnr i� in th Fl�nd�x�ay �r Flnnd FringP ni�trirt, re��n tivel� S�tian._.�5-����, AMENDMENTS. The flood plain designation on the Official Zoning Map shall not be removed from flood plain areas unless it can be shown that the designation is in enor or that the area has been filled to or above the elevation of the [�°c.�.:�si������� ��€��>�f] r�'gul�tnT fl��cl nrntecti�n elPVati�n and is contiguous to lands outside the flood plain. Special exceptions to this rule may be permitted by the Commissioner of Natural Resources if he determines that, through other measures, lands are adequately protected for the intended use. Section 2. This ordinance shall become effective after adoption and upon thiriy days following its legal publication. Adopted this day of 2004. Mayor ATTEST: City Clerk Date of Publication Effective DatP (Brackets indicate matter to be deleted, underline indicates new matter.) That area bounded by the following: County Road No. 10 on.the north; State Highway 100 on the east and south; Xerxes Avenue on the west, except for Tract A, Registered Land Survey No. 1151. Lot l, Block l, Metro Motors Addition; Lot 1, 2 and 3, Block 1, Regal Road Development Addition; Lot 1, Block 6, Wangstad's Brooklyn Terrace Addition; Lot 1, Block 1, Chrysler Motars Corporation 2nd Addition. 5. The following properties are designated as PUD/R3 (Planned Unit DevelopmentlMultiple Family Residence): Lots 1 through 13, Block 1, Estates of Riverwood Addition Lots 1 through 8, Block 2, Estates of R.iverwood Addition Section 35-2000., OVERLAY DISTRICTS. In addition to the land use dis�icts listed in Section 35-300 ofthis ordinance, the following Overlay Districts are hereby established: 1. Flood Plain District 2. Critical Area District 3. Historical Preservation District 4. CC Central Commerce Overlay District Any land which is classified by this ordinance as being within an Overlay District shall be subject to the regulations governing land use activities within such a district in addition to the use regulations established in Sections 35-300 through 35-331 of this ordinance, and to any other regulations as applicable. Section 35-2100. FLOOD PLAIN MANAGEMENT. Section 35-2110. STATUTORY AUTHORIZATION, ,FIlVDINGS OF FACT AND pURpOSE. 1. Statutory Authorization The Legislature of the State of Minnesota has, in Minnesota Statutes Chapter 103F and Chapter 368.01, delegated the responsibility to local governmental units to adopt regulations designed to minimi�e flood losses. Therefore, the City Council of the City of Brooklyn Center, Minnesota, does ordain as follows: 2. Findings of Fact City ofBrooklyn Center 35-113 July 5, 2003 a. The flood hazard areas of the City of Brooklyn Center, Minnesota, are subject to periodic inundation which results in potential loss of life, loss of property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, ail of which adversely affect the public health, safety, and general welfare. b. Methods of Use to Analyze Flood Hazards. This ordinance is based upon a reasonable method of analyzing flood hazards which is consistent with the standards established by the Minnesota Depamilent of Naturai Resources. 3. Statement of Purpose It is the purpose of this ordinance to promote the public health, safety, and general welfare and to minimize those losses described in Section 35-2110.2a by provisians contained herein. Section 35-2120., GENERAL pROVISIONS. 1. Lands to which Ordinance Applies This ordinance shall apgly to all lands within the jurisdiction of the City of Brooklyn Center shown on the 0� cial Zoning Map and/or the attachments thereto as being located within the boundaries of the Floodway, Flood Fringe, or General Flood Pla.in Districts. 2. Establishment of Official Zoning Map The Official Zoning Map together with all materials attached thereto is hereby adopted by reference and declared to be a part of this ordinance. The attached material shall include the Flood Insurance Study for the City of Brooklyn Center prepared by the Federal Insurance Administration dated February 17, 1982, and the Flood Boundary and Floodway Maps and Flood Insurance Rate Maps therein, all as amended by the attached Amendment No. 1, prepared by Barf Engineering. The Official Zoning Map shall be on file in the Office of the City Clerk and the Zoning Administrator. 3. Regulatory Flood Protection Elevation The Regulatory Flood Protection ElEVation shall be an elevation no lower than one foot above the elevation of the regional flood plus any increases in flood elevation caused by encroachments on the flood plain that result from designation of a floodway. 4. Interpretation City ofBrooklyn Center 35-114 City Ordinance a. In their interpretation and application, the provisions of this ordinance shall be held to be minimum requirements and shail be liberally construed in favor of the City and shall not be deemed a limitation or repeal of any other powers granted by State Sta.tutes. b• The boundaries of the zoning districts shall be determined by scaling distances on the Official Zoning Map. Where interpretation is needed as to the exact location of the boundaries of the district as shown on the Official Zoning Map, as for example where there appears to be a conflict between a mapped boundary and actual field conditions and there is a formal appeal of the decision of the Zoning Administrator, the Board of Adjustrnent shall make the necessary interpretation. All decisions will be based on elevation on the regional (100 year) flood profile and other available teehnical data. Persons contesting the location of the district boundaries shall be given a reasonable opporhuiity to present their case to the Board of Adjustment and to submit technical evidence. S. Abrogation and Greater Restrictions It is not intended by this ordinance to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this ordinance imposes greater restrictions, the provisions of this ordinance shall prevail. A11 other ordinances inconsistent with tlus ordinance are hereby repealed to the extent of the inconsistency only. 5• Warning and Disclaimer of Liability This ordinance does not imply that areas outside the flood plain districts or land uses permitted within such districts will be free from flooding or flood damages. This ordinance shall not create liability on the part of the City of Brooklyn Center or any officer or employee thereof for any flood damages that result from reliance on this ordinance or any administrative decision lawfully made thereunder. 7. Severability If any section, clause, provision, or portion of this ordinance is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this ordinance shall not be affected thereby. City ofBrooklyn Center 35-115 City Ordinance 8. Defuutions Unless specifically defined below, words or phrases used in this ordinance shall be interpreted so as to give them the same meaning as they have in common usage and so as to give this ordinance its most reasonable application. Eaual De�ree of Encroachment a method of determining the location of floodway boundaries so that flood plain lands on both sides of a stream are capable of conveying a proportionate share of flood flows. Flood a temporary increase in the flow or stage of a stream or in the stage of a wetland or lake that results in the inundation of normally dry azeas. Flood Freauencv the frequency for which it is expected that a specific flood stage or discharge may be equalled or exceeded. Flood Frinee that portion of the flood plain outside of the floodway. Flood fringe is synonymous with the term "floodway fringe" used in the Flood Insurance Study for the City of Brooklyn Center. Flood Plain the beds proper and the areas adjoining a wetland, lake or watercourse which have been or hereafter rnay be covered by the regional flood. Flood-Proofin� a combination of structural provisions, chan es, or ad'ustments to g J properties and structures subject to flooding, primarily for the reduction or elimination of flood damages. Floodwav_ the bed of a wetland or lake and the channel of a watercourse and those portions of the adj oining flood plain which are reasonably required to carry or store the regional flood discharge. Obstruction any dam, wall wharf, embankment, levee, dike, pile, abutrnent, projection, excavation, channel modification, culvert, building, wire, fence, stockpile, refuse, fill, structure, or matter in, along, across, or projecting into any channel, watercourse, or regulatory flood plain which may impede, retard, or change the direction of the flow. of, water, either in itself oz by catching or collecting debris carried by such water. Reach a hydraulic engineering term to describe a longitudinal segment of a stream or river influenced by a natural or man-made obstruction. In an urban area, the segment of a stream or river between two consecutive bridge crossings would most typically constitute a reach. City ofBrooklyn Center 35-116 City Ordinance I Re�ional Flood a flood which is representative of large floods known to have occurred generally in Minnesota and reasonably characteristic of what can be expected to occur on an average frequency in the magnitude of the 100-year recurrence interval. Regional flood is synonymous with the term "base flood" used in the F1ood Insurance Study. Re�ulatorv Flood Protection Elevation The Regulatory Flood Protection Elevation shall be an elevation no lower than one foot above the elevation of the regional flood plus any increases in flood elevation caused,by encroachments on the flood plain that result from designation of a floodway. Section 35-2130., ESTABLISHMENT OF ZONING DISTRICTS. 1. Districts a. Floodway District The Floodway District shall include those areas designated as floodway on the Flood Boundary and Floodway Map adopted in Section 35-2120.2. b. Flood Fringe District The Flood Fringe District shall include those areas designated as floodway fringe on the Flood Boundary and Floodway Map adopted in Section 35-2120.2. c. General Flood Plain District The General Flood Plain District shall include those areas designated as unnumbered A Zones on the Flood Insurance Rate Map adopted in Section 35-2120.2. 2. Compliance No new structure or land shall hereafter be used and no structure shall be located, extended, converted, or structurally altered without full compliance with the terms of this ordinance and other applicable regulations which apply to uses within the jurisdic�ion of this ordinance. Within the Floodway,, Flood Fringe and General Flood Plain Districts, all uses not listed as permitted uses or special uses in Sections 35-2140, 215Q, and 2160 that follow, r�spectively, shall be prohibited. In addition, a caution is provided here that: a. New manufactured homes and replacement manufactured homes are subject to the general provisions of this ordinance. b. Modifications, additions, structural alterations or repair after damage to existing nonconfonning structures and nonconforming uses of structures or land are regulated by the general provisions of this ordinance and specifically Section 35-2200. City ofBrooklyn Center 35-117 City Ordinance c. As-built elevations for elevated or flood-proofed structures must be certified by ground surveys and flood-groofing techniques must be designed and certified by a registered professional engineer or architect as specified in the general provisions of this ordinance and specifically as stated in Section 35-2190 of this ordinance. Section 35-2140. FLOODWAY DISTRICT (FV�. 1. Permitted Uses a. General f arnun asture azin g P g, outdoor plant nursenes, honc�ulture, truck farn�ung, forestry, sod farming, and vvild crop harvesting. b. Industrial-Commercial loading azeas, parking areas, and airport landing strips. c. Private and public golf courses, tennis courts, driving ranges, archery ranges, picnic grounds, boat launching ramps, swimming areas, parks, wildlife and nature preserves, game farms, fish hatcheries, shooting preserves, target ranges, trap and skeet ranges, hunting and fishing areas, and single or multiple purpose recreational trails. d. Residential lawns, gardens, parking areas, and play areas. 2. Standards for Floodway Permitted Uses a. The use shall have a low flood dama e otenti g P al. b. The use shall be pemussible in the underlying zoning district if one exists. c. The use shall not obstruct flood flows or increase flood elevations and shall not involve structures, fill, obstructions, excavations or storage of materials or equipment. 3. Special Uses a. Structures accessory to the uses listed in Section 35-2140.1 above and the uses listed i.n subsection b through g below. b. Extraction and storage of sand, gravel, and other materials. c. Marinas, boat rentals, docks, piers, wharves, and water control structures. d. Railroads, streets, bridges, utility transmission lines, and pipelines. e. Storage yards for equipment, machinery, or materials. City ofBrooklyn Center 35-118 City Ordinance f. Placement of fi1L g. Structural works for flood control such as levees, dikes and floodwalls constructed to any height where the intent is to protect individual struci�res and levees or dikes where the intent is to protect agricultural crops for a frequency flood event equal to or less than the 10-year frequency flood event. 4. Standazds for Floodway Special Uses a• All Uses. No structure (temporary or permanent), fill (including fill for roads and levees), deposit, obstruction, storage of materials, or equipment, or other uses may be allowed as a Special Use that will cause any increase in the stage of the 100-year or regional flood or any obstruction of flood flows or increase in flow velocity, or cause an increase in flood damages in the reach or reaches a.ffected. b. All floodway Special Uses shall be subj ect to the procedures and standards contained in Section 35-2190.4 of this ordinance. c• The special use shall be permissible in the underlying zoning district if one exists. d. Fill 1) Fill, dredge spoil and all other similar materials deposited or stored in the flood plain shall be protected from erosion b ve et y g ative cover, mulchuig, nprap or other acceptable method. 2) Dredge spoil sites and sand and gravel operations shall not be allowed in floodway uniess a long-term site development plan is submitted which includes an erosion/sedimentation prevention element to the plan. 3) As an altemative, and consistent with Subsection 2 immediately above, dredge spoil disposal and sand and gravel operations may allow temporary, on-site storage of,fill or other materials which would have caused an increase to the stage of the 100-year or regional flood l�ut only after the City has received an appropriate plan which assures the removal of the materials from the floodway based upon the flood waming time ava�lable. The Special Use Permit must be title registered with the property in the Office of the County Recorder. e. Aecessory St� 1) Accessory structures shall not be designed for human habitation. City ofBrooklyn Center 35-119 Ciry Ordinance 2) Accessory structures, if pemutted, shall be constructed and placed on the building site so as to offer the minimum obstruction to the flow of flood waters. 3) Whenever possible, structures sha11 be constructed with the longitudinal axis parallel to the direction of flood flow; and, b) So far as practicable, structures shall be placed approximately on the same flood flow lines as those of adjoin.ing structures.� c) Accessory structures shall be elevated on fill or structurally dry flood- proofed in accordance with the FP-1 or FP-2 flood-proofing classifications in the State Building Code. As an alternative, an accessory structure may be flood-proofed to the FP-3 or FP-4 flood-proofing classification in the State Building Code provided the accessory structure constitutes a minimal investrnent, does not exceed 500 square feet in size, and for a detached garage, the detached garage must be used solely for parking of vehicles and limited storage. All flood-proofed accessory structures must meet the following additional standards, as appropriate: (1) The structure must be adequately anchored to prevent flotation, collapse or lateral movement of the structure and shall be designed to equalize hydrostatic flood forces on exterior walls; and (2) Any mechanical and utili e ui ment in a ty q p structure must be elevated to or above the Regulatory Flood Protection Elevation or properly flood-proofed. f. Storage of Materials and Equipment 1) The storage or processing of materials that are, in time of flooding, flammable, explosive, or potentially injurious to human, animal, or plant life is prohibited. 2) Storage of other materials or equipment may be allowed if readily removable from the area within the time available after a flood waming and in accordance with a plan approved by the City of Brooklyn Center. g. Structurai Works for Flood Control that will change the course, current or cross section of protected wetlands or public waters shall be subject to the provisions of Minnesota Statute, Chapter 103G. Community-wide structural works for flood control intended to remove areas from the regulatory flood plain shall not be allowed in the Iloodway. City ofBrooklyn Center 35-120 City Ordinance h. A levee, dike or floodwall constructed in the floodway shall not cause an increase to the 100-year or regional flood and the technical analysis must assume equal conveyance or storage loss on both sides of a stream. Section 35-2I50. FLOOD FRINGE DISTRICT (FF). 1. Permitted Uses: Permitted Uses shall be those uses of land or structures listed as Permitted Uses i� the underlying zoning use district(s). If no pre-existing, underlying zoning use districts exist, then any residential or nonresidential structure or use of a strueture or land shall be a Permitted Use in the Flood Fringe provided such use does not eonstitute a public nuisance. All Permitted Uses sha11 comply with the standards for Flood Fringe "Pernzitted Uses" listed in Section 35-2150.2 and the standards for all Flood Fringe "Permitted and Special Uses" listed in Section 35-2150.5. 2. Standards for Flood Fringe Perniitted Uses: a. All structures, including accessory structures, must be elevated on fill so that the lowest floor, including basement floor, is at or above the Regulatory Flood Protection Elevation. The finished fill elevation for structures shall be no lower than one (1) foot below the Regulatory Flood Protection Elevation and the fill shall extend at such elevation at least fifteen (15) feet beyond the outside limits of the structure erected thereon. b. As an alternative to elevation on fill, accessory structures that constitute a minimal investment and that do not exceed 500 square feet for the outside dimension at ground level may be intemally flood-proofed in accordance with Section 2140.4e2c. c. The cumulative placement of fill where at any one time in excess of one thousand (1,000) cubic yards of fill is located on the parcel shall be allowable only as a Special Use, unless said fill is specifically intended to elevate a structure in accordance with Section 35-2150.2a. d. The storage of any materials or equipment shall be elevated on fill to the Regulatory Flood Protection Elevation. e. The provisions of Section 35-2150.5 of this Ordinance shall apply. 3. Special Uses: Any structure that is not elevated on fill or flood- proofed in accordance with Section 35-2150.2a-b or any use of land that does not comply with the standards in Section 35-2150.5 shall only be allowable as a Special Use. An application for a Special Use Permit shall be subject to the standards and criteria and evaluation procedures spec�ed in Sections 35-2150.4 and 35-2190.4 of this Ordinance. City ofBrooklyn Center 35-121 Ciry Ordinance I 4. Standards for Flood Fnnge Special Uses: a. Altemative elevation methods other than the use of fill may be utilized to elevate a structure's lowest floor above the Regulatory Flood Protection Elevation. These alternative methods may include the use of stilts, pilings, parallel walls, etc., or above-grade, enclosed areas such as crawl spaces or tuck under garages. The base or floor of an enclosed area shall be considered above-grade and not a structure's basement or lowest floor if: 1) the enclosed area is above-grade on at least one side of the structure; 2) is designed to internally flood and is constructed with flaod resistant materials; and 3) is used solely for parking of velucles, building access or storage. The above-noted alternative elevation methods are subject to the following additional standazds: (1) Design and Certification The structure's design and as-built condition must be certified by a registered professional engineer or azchitect as being in compliance with the general design standards of the State Building Code and, specifically, that all electrical, heating, ventilation, plumbing and air conditioning equipment and other service facilities must be at or above the Regulatory Flood Protec�on Elevation or be designed to prevent flood water from entering or accumulating withi.n these components during times of flooding: (2) Specific Standards for Above-Crrade, Enclosed Areas Above-grade, fully enclosed azeas such as crawl spaces or tuck under garages must be designed to internally flood and the design plans must stipulate: a) The min;mum area of openings in the walls where internal flooding is to be used as a flood-proofing technique: When openings aze placed in a structure's walls to provide for entry of flood waters to equalize pressures, the bottom of all openings shall be no higher than one foot above-grade. Openings may be equipped with screens, louvers, valves, or other coverings or devices provided that they permit the automatic entry and exit of flood waters. b) That the enclosed azea will be designed of flood resistant matenals in accordance with the FP-3 or FP-4 classi.fications in the State Building Code and shall be used solely for building aecess, parking of vehicles or storage. b. Basements, as defined by Section 35-900 of this Ordinance,�shall be subject to the following: 1) Residential basement construction shall not be allowed below the Regulatory Flood Protection Elevation. I City of Brooklyn Center 35-122 City Ordinance 2) Nonresidential basements may be allowed below the Regulatory Flood Protection Elevation provided the basement is structurally dry flood-proofed in accordance with Section 35-2150.4c of this Ordinance. c. All azeas of nonresidential structures including basements to be placed below the Regulatory Flood Protection Elevation shall be flood- proofed in accordanee with the structlu�ally dry flood-proofing classifications in the State Building Code. Structurally 'dry flood- proofing must meet the FP-1 or FP-2 flood-proofing classification in the State Building Code and this shall require making the structure watertight with the walls substantially impermeable to the passage of water and with structural components having the capability of resisti�g hydrostatic and hydrodynamic loads and the effects of buoyancy. Structures flood-proofed to the FP-3 or FP-4 classification shall not be permitted. d. When at any one time more than 1,000 cubic yards of fill ar other similaz material is located on a parcel for such activities as on-site storage, landscaping, sand and..gravel operations, landfills, roads, dredge spoil disposal or construction of flood control works, an erosion/sed.imentation contral plan must be submitted. The plan must clearly specify methods to be used to stabilize the fill on site for a flood event at a minimum of the 100-year or regional flood event. The. plan must be prepared and certified by a registered professional engineer. The plan may incorporate alternative procedures for removal of the material from the flood plain if adequate flood warning time exists. e: Storage of Materials and Equipment: 1) The storage or processing of materials that aze, in time of flooding, flammable, explosive, or potentially injurious to human, animal, or plant life is prohibited. 2) Storage of other materials or equipment may be allowed if readily removable from the area within the time available after a flood warning and in accordance with a plan approved by the City of Brooklyn Center. f. The provisions of Section 35-2150.5 of this Ordinance shall also apply. 5. Standards for All Flood Fringe Uses: a. A11 new principal s�uctures must have vehicular access at or above an elevation not more than two (2) feet below the Regulatory Flood Protection Elevation. Ci o Brookl n Center 35-123 Ci Ordinance �v f y ry If a variance to this requirement is granted, the Board of Adjustment must specify lim.itations on the period of use or occupancy of the structure for times of floodi.ng and only after determiiung that adequa.te flood waming time and loaal flood emergency response procedures exis�t. b. Commercial Uses accessory land uses, such as yards, railroad tracks, and parking lots may be at elevations lower.than the Regulatory Flood Protection Elevation. However, a permit for such facilities to be used by the employees or the general public shall not be granted in the absence of a flood waming system that provides adequate time for evacuation if the area would be inundated to a depth greater than two feet or be subj ect to flood velocities greater than four feet per second upon occurrence of the regional �Iood. c. Manufacturing and Industrial Uses measures shall be taken to m;niT„i,P �terference with normal plant operations especially along streams havi.ng protracted flood durations. Certain accessory land uses, such as yards and pazking lots, may be at lower elevations subject to requirements set out in Section 35-2150.Sb above. In considering permit applications, due consideration shall be given to needs of an industry whose busi.ness requires that it be located in flood plain azeas. d. Fill shall be properly compacted and the slopes shall be properly protected by the use of riprap, vegetative cover or other aeceptable method. The Federal Emergency Management Agency (FEMA) has established criteria for removi.ng the special flood hazard area designahon for certain structures properly elevated on fill above the 100-year flood elevation FEMA's requirements incorporate specific fill compaction and side slope protection sta.ndards for multi-stzucture or multi-lot developments. These standards should be investigated prior to the initiation of site preparation if a change of special flood hazard azea designation will be requested. e. Flood plain developments shall not adversely affect the hydraulic capacity of the channel and adjoining flood plai.n of any tributary watercourse or dra,inage system where a floodway or other encroachment limit has not been specified on the Official Zoning Map. f. A.11 manufactured homes must be securely anchored to an adequately anchored foundation system that resists flotation, collapse and lateral movement. Methods of anchoring may include, but aze not to be li.mited to, use of over-the-top or frame ties to ground anchors. This requirement is in addition to applicable state or local anchori.ng requirements for resisti.ng wi.nd forces. r,; City of Brooklyn Center 35-124 City Ordinance g. If fill is placed or there is encroachment of any kind in the flood fringe, compensatory storage of equal or greater volume than the encroachment upon the flood fringe must be provided withi.n the flood plain. This encroachment shall not create any surcharge, nor shall it create hazardous velocities. Section 35-21 60 GENER.AL FLOOD PLAIN DISTRICT. l. Perniissible Uses: The uses listed in Section 35-2140.1 of this Ordinance shall be permitted uses. b. All other uses shall be subj ect to the floodway/flood fringe evaluation criteria pursuant to Section 3 5-2160.2 below. Section 3 5-2140 shall apply if the proposed use is in the Floodway District and Section 35-2150 shall apply if the proposed use is in the Flood Fringe Distric� 2. Procedures for Floodway and Flood Fringe Determinations Within the General Flood Plai.n District. a. Upon receipt of an application for a Special Use Permit for a use within the General Flood Plain District, the applicant shall be required to furnish such of the following information as is deemed necessary by the Zoning Administrator for the determination of the Regulatory Flood Protection Elevation and whether the proposed use is within the Floodway or Flood Fri.nge District 1) A typical valley cross-section showing the channel of the stream, elevation of land areas adjoining each side of the channel, cross-sectional areas to be occupied by the proposed development, and high water information. 2) Plan (surface view) showing elevations or contours of the ground; pertinent structure, fill, or storage elevations; size, location, and spatial arrangement of all proposed and existing struciures on the site; location and elevations of streets; photographs showing existing land uses and vegetation upstream and downstream; and soil type. 3) Profile showi.ng the slope of the bottom of the channel or flow line of the stream for at least 500 feet in either direction from the proposed development. b. The applicant shall be responsible to submit one copy of the above information to a designated engineer or other expert person or agency for technical assistance in determi��ng whether the proposed use is in the Floodway or Flood Fringe District and to determi.ne the Regulatory Flood Protection Elevation. Ciiy of Brooklyn Center 35-125 City Ordinance Procedures consistent with Minnesota Regulations 1983, Parts 6124.5000 6120.6200 shall be followed in this expert evaluation. The designated engineer or expert is strongly encouraged to discuss the proposed teehnical evaluation methodology with the respective Department of Natural Resources' Area Hydrologist prior to commencing the analysis. The designated engi.neer or expert shall: 1) Esti.mate the peak discharge of the regional flood. 2) Calculate the water surface profile of the regional flood based upon a hydraulic a.nalysis of the stream channel and overbank areas. 3) Compute the floodway necessary to convey or store the regional flood. A.n equal degree of encroachment on both sides of the stream within the reach shall be assumed in computing floodway boundaries. c. The Zoning Administrator shall present the technical evaluation and findings of the designated engineer or expert to the City Council. The City Council must formally accept the technical evaluation and the recommended Floodway and/or Flood Fringe District boundary or deny the permit application. The City Council, prior to official action, may submit the application and a11 supporting data and analyses to the Federal Emergency Management Agency, the Department ofNaturai Resources or the Planning Commission for review and comment. Once the Floodway and Flood Fri.nge Boundaries have been determined, the City Council shall refer the matter back to the Zoning Administrator who shall process the pernut application consistent with the applicable provisions of Section 35-2140 and 35-2150 of this Ordinance. Section 35-2170. SUBDIVTSIONS. .1. Review Criteria: No land shall be �subdivided which is unsuitable for the reason of flooding, inadequate drainage, water supply or sewage treatinent facilities. All lots within the flood plain districts shall contain a building site at or above the Regulatory Flood Protection Elevation. All subdivisions shall have water and sewage treatrnent facilities that comply with the provisions of this Ordinance and have road access both to the subdivision and to the individual buildi.ng sites no lower than two (2) feet.below the Regulatory Flood Protection Elevation. For all subdivisions in the flood plai.n, the Eloodway and Flood Fri.nge boundaries, the Regulatory Flood Protection Elevation and the required elevation of all access roads shall be clearly labelled on all preliminary plat drawings. Ciry of Brooklyn Center 35-126 Ci Ordinance 2. Floodway/Flood Fringe Determinations in the General Flood Plain District: In the i General Flood Plain District, applicants shall provide the information re uired in Section q 3 5-2160.2 of this Ordinance to deterniine the 100-year flood elevation, the Floodway and Flood Fringe District boundaries and the Regulatory F1ood Protection Elevation for the subdivision site. 3. Removal of Special Flood Hazard Area Designation: The Federal Emergency Management Agency (FEMA) has established criteria for removi.ng the special flood hazard azea designation for certain structures properly elevated on fill above the 100-year �lood elevation. FEMA's requirements incorporate specific fill compaction and side slo e P protection standards for multi-structure or multi-lot developments. These standards should be investigated prior to the initiation of site preparation if a change of special flood hazard azea designation will be requested. Section 35-2180. PUBLIC U'IZLITIES, R.AILROADS, ROADS, AND BRIDGES. 1. Public Utilities: All public utilities and facilities such as gas, electrical, sewer, and water supply systems to be located in the flood plain shall be flood-proofed in accordance with the State Buildi.ng Code or elevated to above the Regulatory Flood Protection Elevation. 2. Public Transportation Facilities: Railroad tracks, roads, and bridges to be located within the flood plain shall comply with Sections 35-2140 and 35-2150 of this Ordinance. Elevation to the Regulatory Flood Protection Elevation shall be provided where failure or interruption of these transportation facilities would result in danger to the public health or safety or where such facilities aze essential to the orderly' functioning of the azea. Minor or auxiliary roads or railroads may be constructed at a lower elevation where failure or interruption of transportation services would not endanger the public health or safety. 3. On-site Sewage Treatment and Water Supply Systems: Where public utilities are not provided: 1) On-site water supply systems must be designed to�minimi�p or eliminate infiltration of flood waters into the systems; and 2) New or replacement on-site sewage treatment systems must be designed to minimi�e or eliminate infiltration of flood waters into the systems and dischazges from the systems,into flood waters and they shall not be subj ect to impairment or contamina.tion during times of flooding. Any sewag�e treatment system designed in accordance with the State's current statewide standards for on-site sewage treatrnent systems sha11 be determined to be in compliance with this Section. Section 35-2181. MANUFACTURED HOMES. Manuf'aetured homes shall conform to the definition contai.ned in Section 35-900 of this ordi.nance and shall also be subject to the provisions of Section 35-530 regardi.ng buildings in the R1 and R2 districts. For the purposes of flood plai.n regulation, manufactured homes sha11 be subject to the same restrictions as site built homes. Ci o Brookl n Center t3' .f Y 35 127 Ci Ordinan ce Section 35-2182. ADULT ESTABLIS�IMENTS. l. Findings and Purpose. Studies conducted by the Minnesota Attomey General, the American Planning Association, and cities such as S� Pau1, Minnesota; Indianapolis, Indiana; Hopkins, Minnesota; Ramsey, Min.nesota; Minnetonka, Minnesota; Rochester, Minnesota; Phoenix, Arizona; Los Angeles, California; and Seattle, Washi.ngton have studied the impacts that adult establishments have in those communities. These studies have concluded that adult establishments have adverse impacts on the surrounding neighborhoods. These impacts include increased cri.me rates, lower property values, increased �ansiency, neighborhood blight, and potential health risks. Based on these studies and find.ings, the City Council concludes: a. Adult establishments have adverse secondary impacts of the types set forth above. b. The adverse impacts caused by adult establishments tend to diminish if adult establishments are governed by geographic, licensing, and health requirements. c. It is not the intent of the City Council to prohibit adult establishments from having a reasonabl� opporhznity to locate in the city. d. Minnesota Statutes, Section 462357, allows the City to adopt regulations to promote the public health, safety, morals and general welfare. e. The public health, safety, morals. and general welfare wi.11 be promoted by the City adopting regulations governing adult establishments. 2. Definitions: For purposes of this section, the following terms have the meanings given them. a. "Adult Establishment" means a business where seaually-oriented materials are sold, bartered, distributed, leased, or furnished and which meet any of the following criteria: 1) a business where sexually oriented materials are provided for use, consumption, enjoyment, or entertainment on the business premises; 2) a business that is distinguished or characterized by an emphasis on the description or display of specified sexual activities; Ciiy of Brooklyn Center 35-128 City Ordinance 3) a business that is distinguished or characterized by an emphasis on the description or display of specified anatomical areas; 4) an adult cabazet as defined in Section 19-1900; Subdivision 1; 5) a business providing sexually oriented materials only for off site use, consumption, enj oyment or entertainment if the portion of the business used for such purpose exceeds 25% of the retail floor area of the business or 500. square feet, whichever is less. b. "Sexually oriented materials" means visual, printed or aural materials, objects or devices that are distinguished or characterized by an emphasis on the depiction or description of specified anatomical areas or specified sexual activities. c. "Specified Anatomical Areas" means: 1) Less than completely and opaquely covered human genitals, pubic regions, buttocks, anuses, or female breasts below a point immediately above the top of the azeola; and 2) Human male genitals in a discemable turgid state, even if completely and opaquely covered. d, "Specified Sexual Activities" means: 1) Actual or si�nulated: sexual intercourse; oral copulation; anal intercourse; oral-anal copulation; bestiality; direct physical stimulation of unclothed genitals; flagellation or torture in the context of a sexual relationship; the use of excretory functions in the context of a sexual relationship; anilingus; buggery; coprophagy; coprophilia; cunnilingus; fellatio; necrophilia; pederasty; pedophilia; piquerism; sapphism; or zooerastia; 2) Clearly depicted human genitals in the state of sexual stimulation, arousal, or tumescence; 3) Use of human or animal ejaculation, sodomy, oral copulation, coitus, or masturbation; 4) Fondling or touching of nude human genitals, pubic iegions, buttocks, or female breasts; Ciry of Brooklyn Center 35-129 Ci Ordinance 5) Situations involvi.ng a person or persons, any of whom are nude, who are clad in undergarments or in sexually revealing costtunes and engaged in the flagellation, torture, fetteri.ng, bind.ing, or other physical restraint of any person; 6) Erotic or lewd touchi.ng, fondling, or other seaually oriented contact with an animal by a human being; or 7) Human excretion, urination, menstruation, or vaginal or anal irrigation. 3. Adult establishments may be located only as allowed by Section 35-330 of this code. Section 35-2190. ADMIl�iISTR.ATTON. 1. Zoning Admi.nistrator: A Zoning Administrator designated by the City Manager shall administer and enforce this Ordinance. If the Zoning Administrator finds a violation of the provisions of this Ordinance, the Zoning Adm.inistrator shall notify the person responsible for such violation in accordance with the procedures stated in Secfion 35- 2210 of the Ordinanee. 2. Permit Requirements: a Permit Required. A Permit issued by the Zoning Administrator in conformity with the provisions of this Ordinance shall be secured prior to the erection, addition, or alteration of any building, structure, or portion thereof; prior to the use or cha.nge of use of a buildi.ng, structute, or land; prior to the change or extension of a nonconforming use; and prioz to the placement of fill, excavation of materials, or the storage of materials or equipment within the flood plain. b. Application for Permit Application for aPermit shall be made in duplicate to the Zoning Administrator on forms furnislied by the Zoning Administrator and shall include the following where applicable: plans in duplicate drawn to scale, showing the nature, location, dimensions, and elevations of the lot; existing or proposed structures, fill, or storage of materials; and the location of the foregoing in relation to the stream channeL c. State and Federal Permits. Prior to granti.ng a Permit or processing an application for a Special Use Permit or Variance, the Zoning Administrator shall determine that the applicant has obtai.ned all necessary State and Federal Permits. City ofBrooklyn Center 35-130 City Ordinance d. Certi.ficate of Zoning Compliance for a New, Altered, or Nonconfomung Use. It sha11 be unlawful to use, occupy, or peimit the use or occupancy of any building or premises, or part thereof, hereafter created, erected, changed, converted, altered, or enlarged in its use or structure until a Certificate of Zoning Compliance shall have been issued by the Zoning Administrator stating that the use of the buildi.ng or land conforms to the requirements of this Ordinance. e. Construction and Use to be as Provided on Applications, Plans, Perniits, Variances and Certificates of Zoning Compliance. Permits, Special Use Permits, or Certificates of Zoning Complianee issued on the basis of approved plans and applications authorize only the use, arrangement, and construction set forth in such apgroved plans and applications, and no other use, arrangement, or construction. Any use, arrangement, or construction at variance with that authorized shall be deemed a violation of this Ordinance, and punishable as provided by Section 35-2210 of this Ordinance. f. Certification. The applicant shall be required to submit certification by a registered professional engineer, registered architect, or registered land surveyor that the finished fill and building elevations were accomplished in compliance with the provisions of this ordinance. Flood-proofing measures shall be certified by a registered professional engineer or registered azchitec� g. Record of First Floor Elevation. The Zoning Administra.tor shall mai.ntain a record of the elevation of the lowest floor (including basement) of a11 new structures and alterations or additions to existing structures in the flood plain. The Zoning Adminis�ator shall also maintain a record of the elevation to which structures or alterations and additions to structures are flood-proofed. 3. Board of Adjustment: a. Rules. The Board of Adjustment shall adopt rules for the conduct of business and may exercise all of the powers conferred on such Boards by State law. b. Administrative Review. The Board shall heaz and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement or administration of this Ordinance. City ofBrooklyn Center 35-131 City Ordinance c. Variances. The Board may authorize upon appeal in specific cases such relief or Variance from the terms of this Ordinance as are consistent with the provisions of Section 35-240 of the Zoning Ordinance. In the granting of such Variance, _the Board of Adjustment shall cleazly identify in writing the specific conclitions that existed consistent with the criteria specified in Section 35-240 which justified the granting of the Variance. No Variance shall have the effect of allowing in any district uses prohibited in that district, permit a lower degzee of flood protection than the Regulatory Flood Protection Elevation for the particular azea, or permit standards lower than those required by State law. d. Hearings. Upon filing with the Board of Adjustment of an appeal from a decision of the Zoning Administrator, or an application for a variance, the Boazd shall fix a reasonable time for a hearing and give due notice to the parties in interest as specified by law. The Board shall submit by mail to the Commissioner ofNatural Resources a copy of tb.e application for proposed Variances sufficiently in advance so that the Commissioner will receive at least ten (10) days notice of the hearing. e. Decisions. The Board shall aizive at.a decision on such appeal or Variance within 48 days of referral to the Board. In passing upon an appeal, the Boazd may, so long as such action is in confomuty with the provisions of this Ordinance, reverse or affirm, wholly or in part, or modify the order, requirement, decision or determination of the Zoni.ng Administrator or other public official. It shall make its decision in writing setting forth the findings of fact and the reasons for its decisions. In granti.ng a Variance, the Board may prescribe appropriate conditions and safeguards such as those specified in Section 35- 2190.4, which are in conformity with the purposes of this Ordinance. Violations of such conditions and safeguards, when made a part of the terms under whieh the Variance is granted, shall be deemed a violation of this Ordi.nance punishable under Section 35-2210. A copy of all decisions granting Variances shall be forwarded by mail to the Commissioner ofNatural Resources withinten (10) days of such action. f. Appeals. Appeals from any decision of the Board may be made, and as specified in this Community's Official Controls and also Minnesota Statutes. g. Flood Insurance Notice and Record Keeping. The Zoning Admi.nistrator shall notify the applicant for a variance that: Ciiy of Brooklyn Center 35-132 City Ordinance 1) The issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25 for $100 of insurance coverage; and 2) Such construction below the 100-year or regional �lood level increases risks to life and property. Such notification shall be mai.ntained with a record of all variance actions. A community shall maintain a record of all variance actions, ineluding justification for their issuance, and report such variances issued in its annual or biennial report submitted to the Administrator of the National Flood Insurance Program, 4. Special Uses. The City Council shall hear and decide applications for Special Uses permissible under this Ordinance. Applications shall be submitted to the Director of Planning and Inspections who shall forward the application to the Planning Commission for consideration. a, Hearings. Upon fili.ng with the Planning and Inspection Department an application for a Special Use Permit, the Director of Planning and Inspeetion shall submit by mail to the Commissioner of Natural Resources a copy of the application for proposed Special Use sufficiently in advance so that the Commissioner will receive at least ten (10) days notice of the hearing. b. Decisions. The City Council shall arrive at a decision on a Special Use withi.n 48 days of a recommendation by the Planning Commission. In granting a Special Use Permit, the City Council shall prescribe appropriate conditions and safeguards, in addition to those specified in Section 35-2190.4f, which aze in conformity with the purposes of this Ordinance. Violations of such conditions and safeguards; when made a part of the terms under which the Special Use Permit is granted, sha11 be deemed a violation of this Ordinance punishable under Section 35-2210. A copy of a11 decisions granting Special Use Permits shall be forwarded by mail to the Commissioner ofNatural Resources within ten (10) days of such action. c. Procedures to be followed by the City Council in Passing on Special Use Permit Applications Within all Flood Plain Districts. 1) Require the applicant to fiunish such of the following information and. additional information as deemed necessary by the City Council for determining the suitability of the particulaz site for the proposed use. a) Five Sets of Plans drawn to scale showing the nature, location, dimensions, and elevation of the lot, e�cisting or proposed structures, fill,'storage of materials, flood-proofing measures, and the relationship of the above to the location of the stream channeL City of Brooklyn Center 35-133 City Ordinance 9) The relationship of the proposed use to the comprehensive plan and flood plai.n management program for the azea. 10) The safety of access to the property in times of flood for ordinary and emergency vehicles. 11) The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters expected at the site. 12) Such other factors which are relevant to the purposes of this Ordinance. e. Time for Acting on Application, The City Council shall act.on an application in the manner described above within 48 days from receiving a recommendation from the Planning Commission on the application, except that where additional information is required pursuant to Section 35-2190.4d ofthis Ordinance, the City Council shall render a written decision within 30 days from the receipt of such additional information. f. Conditions Attached to Special Use Permits. Upon consideration of the factors listed above and the purpose of this Ordinance, the City Council shall attach such conditions to the granting of Special Use Permits as it deems necessary to fulfill the purposes of this Ordinance. Such conditions may include, but are not limited i to, the following: 1) Modification of waste treahnent and water supply facilities. 2) Limitations on penod of use, occupancy, and operation. 3) Imposition of operational contrals, sureties, and deed iestrictions. 4) Requirements for construction of channel modifications, compensatory storage, dilces, levees, and other protective measures. 5) Flood-proofin.g measures, in accordance with the State Building Code and this Ordinance. The applicant shall submit a plan or document certified by a registered professional engineer or architect that the flood-groofing measures aze consistent with the Regulatory Flood Protection Elevation and associated flood factors for the particular area. 1 City ofBrooklyn Center 35-135 City Ordinance Section 35-2200. NONCONFORNIlNG USES IN THE FLOOD HAZARD ZONE5. 1. A structure or the use of a structure or premises which was law�ul before the passage or amendment of this Ordi.nance but which is not in conformity with the provisions of this Ordinance may be continued subj ect to the followi.ng conditions: a No such use shall be expanded, changed, enlazged, or altered in a way which increases its nonconfomuty. b. Any alteration or addition to a nonconforming structure or nonconforming use which would result in increasing the flood damage patential af that structure or use sha11 be protected to the Regulatory Flood Protection Elevation in accordance with any of the elevation on fill ar flood-pzoofing techniques i.e. FP-1 thru FP-4 flood-proofing classifications) allowable in the State Building Code, except as further restricted in Subsection c below. c. The cost of any structural alterations or additions to any nonconforming structure over the life of the structure shall not exceed S 0 percent of the market value of the structure unless the conditions of this Section aze satisfied. The cost of all structvral alterations and additions constructed since the adoption of the Community's initial flood plain controls must be calculated into today's current cost which will include all costs such as construcdon materials and a reasonable cost placed on all manpower or labor. If the current cost of all previous and proposed alterations and additions exceeds 50 percent of the current market value of the structure, then the structure must meet the standards of Section 35-2140 or 35-2150 of this Ordinance for new structures depending upon whether the structure is in the Floodway or Flood Fringe, respectively. d. If any nonconforming use is discontinued for 12 consecutive months, any future use of the buildi.ng premises sha11 conform to this Ordinance. The assessoz sha11 notify the Zoning Administrator in writing of instances of nonconforming uses which have been disconti.nued for a period of 12 months. e. If any nonconfornv.ng use or structure is destroyed by any means, including floods, to an extent of 50 percent or more of its market value at the time of destruction, it shall not be reconstructed except in conformity with the provisions of this Ordinance. The applicable provisions for establishing new uses or new structures in Sections 35-2140, 35-2150, or 35-2160 will apply depending upon whether the use or structure is in the Floodway, Flood Fri.nge or General Flood Plai.n District, respectively. City ofBrooklyn Center 35-136 City Ordinance Section 35-2210. PENALTIES FOR VIOLATION. 1. Violation of the ro p vlsions of tlus Orduiance or failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with grants of Variances or Special Uses) shall constitute a misdemeanor and shall be punishable as defined by law. 2. Nathing herein contained shall prevent the City of Brooklyn Center from taking such other lawful action as is necessary to prevent or remedy any violation. Such actions may include, but are not limited to: a. In responding to a suspected ordinance violatian, the Zoning Administrator and the City may utilize the full arra.y of enforcement actions available to it including, but not lim.ited to, prosecution and fines, injunctions, after-the-fact permits, orders for corrective measures or a request to the National Flood Insurance Program for den.ial of flood insurance availability to the guilty party. The community must act in good faith to enforce these official controls and to correct ordinance violations to the extent possible so as not to jeopazdize its eligibility in the National Flood Insurance Program. b. When an ordinance violation is either discovered by or brought to the attention of the Zoning Administrator, the Zoning Administrator shall imm.ediately investigate the situation and document the nature and extent of the violation of the official control. As soon as is reasonably possible, this information will be submitted to the appropriate Department of Natural Resources' and Federal Emergency Management Agency Regional Office along with the Community's plan of action to conect the violation to the degree possible. a The Zoning Administrator shall notify the suspected party of the requirements of this Ordinance and all other Official Controls and the na.ture and extent of the suspected violation of these controls. If the structure and/or use is under construction or development, the Zoning Administrator may order the construction or development immediately halted until a proper pernut or approval is granted by the Community. If the construction or development is already completed, then the Zoni.ng Administrator may either: 1) issue an order identifying the corrective actions that must be made within a specified time period to bring the use or structure into compliance with the official controls, or 2) notify the responsible party to apply for an after-the-fact permit/development approval within a specified period of time not to exceed 30 days. City ofBrooklyn Center 35-137 City Ordinance d. If the responsible party does not appropriately respond to the Zoning Admini at str or t�ttitn the specified penod of time, each additional day that lapses shall constitute an additional violation of this Ordinance and shall be prosecuted accordingly. The Zoning Administrator shall also, upon the lapse of the specified response period, notify the landowner to restore the land to the condition which existed prior to the violation of this Ordinance. Section 35-2220. AMENDMENTS. The flood plain designation on the Official Zoning Map shall not be removed from flood pla.in areas unless it can be shown that the designation is in error or that the area has been filled to or above the elevation of the regional flood and is contiguous to lands outside the flood plain. Special exceptions to this rule may be permitted by the Commissioner of Natlu�al Resources if he determines that, through other measures, lands are adequately protected for the intended use. All amendments to this Ordinance, including amendments to the Official Zoning Map, must be submitted to and approved by the Commissioner ofNatural Resources prior to adoption. Changes in the Official Zqning Map must meet the Federal Emergency Mana.gement Agency's (FEMA.) Techn.ical Conditions and Criteria and must receive prior FEMA approval before adoption. The Commissioner of Natural Resources must be given ten (10) days written notice of all hearings to consider an amendment to this Ordinance and said notice shall include a draft of the ordinance amendment or technical study under consideration. Section 35-2230. GRADING AND EROSION CON TROL PLAN. 1. A satisfactory erosion control and grading plan consistent with the Minnesota Pollution Control Agency's Best Management Practices Handbook �must be approved by the City Engineer before a grading or building permit is issued for construction, if the construction will result in disturbing the soil. 2. The grading and erosion control plan must provide 2 foot contour lines with spot elevations of proposed grades in relation to existing grades on the subject property and adjacent land. Also, location and type of erosion control devices shall be clearly labeled. 3. Every effort shall be made to minim�P disturbance of existing ground cover. To minimize the erosion potential of exposed azeas, restoration of ground cover shall be provided within five (S) days after completion of the grading operation; in no event shall erosion control devices be removed until ground cover is established. 4. Every effort shall be made during the building pezmit application process to determ.i.ne the fu11 extent of erosion control required. However, the City Engineer may require additional controls to correct specific site related problems as normal inspections are pezformed. City of Brooklyn Center 35-138 City Ordinance 5. All erosion control noted on the approved plan shall be installed prior to the initiation af an site ad' y gr ing or construction. Noncompliance with the grading and erosion control plan shall constitute grounds for an order from the City to halt all construction. 6. All grading and construction activity that results in disturbance of the ground sha11 com 1 PY with Minnesota Pollution Control Agency's Best Management Practices. Section 3.5-2240._ CC CENTR.AL COMMERCE OVERLAY DISTRICT. 1. Land may be designated as being within the CC Central Commerce Overlay District by city ordinance. Land use within any area so designated shall comply with the regulations of this section in addition to all regulations applicable to the underlying land use district established in Sections 35=300 through 35-331 of this Code and other regulations as applicable. 2. The following uses are allowed in the CC Central Commerce Overlay District: a. Finance, insurance, real estate and investment o�ce. b. Medical, dental, osteopathic, chiropractic and optometr offices. The compounding, dispensing or sale (at retail) of drugs, prescription items, patent or ro riet P P �Y medicines, sick room supplies, prosthetic devices or items relating to any of the foregoing when conducted in the building occupied rimaril b medical de t P Y Y n al, osteopathic, chiropractic or optometric offices. c. The following office uses: I 1) Legal 2) Engineering and architectural 3) Educational and scientific research (excluding laboratory facilities) 4) Accountin auditin and bookkee i g g p ng 5) An urban planning agency d. Beauty and barber services. e. Funeral and crematory services. f. Photographic services. g. Apparel repair, alteration and cleaning pickup stations, shoe repair. h. Advertising offices, provided that the fabrication of signs shall not be apernutted use. Ciry ofBrooklyn Center 35-139 City Ordinance MINUTES OF THE PROCEEDINGS OF THE PLANNING COMMISSION OF THE CITY OF BROOKLYN CENTER IN THE COUNTY OF HENNEPIN AND THE STATE OF MINNESOTA STUDY SESSION AUGUST 12, 2004 CALL TO ORDER The Planning Commission meeting was called to order by Chair ProTem Newman at 7:38 p.m. ROLL CALL Chair ProTem Rex Newman, Commissioners Graydon Boeck, Sean Rahn, Dianne Reem, and Tim Roche were present. Also present were Secretary to the Planning Commission/Planning and Zoning Specialist Ronald Warren, and Planning Commission Recording Secretary Rebecca Crass. Chair Tim Willson was absent and excused. APPROVAL OF MINUTES JULY 15, 2004 There was a motion by Commissioner Reem, seconded by Commissioner Roche, to approve the minutes of the July 15, 2004 meeting as submitted. The motion passed. Commissioner Boeck abstained as he was not present at the meeting. CHAIR' S EXPLANATION Chair ProTem Newman explained the Planning Commission's role as an advisory body. One of the Commission's functions is to hold public hearings. In the matters concerned in these hearings, the Commission makes recommendations to the City Council. The City Council makes all final decisions in these matters. STUDY ITEM: AN ORDINANCE AMENDiNG CHAPTER 35 OF THE CITY ORDINANCES REGARDING FLOOD PLA1N MANANGEMENT Mr. Warren described the proposed ordinance amending Chapter 35 of the City Ordinances Regarding Flood Plain Management. Mr. Warren explained that The Federal Emergency Management Agency (FEMA), along with the Minnesota Department of Natural Resources (MnDNR), are requiring that all communities adopt flood plain management measures that satisfy the requirements of the National Flood Insurance Program (NFIP). These flood plain ordinance changes are required by FEMA to be effective by September 2, 2044, the effective date of the new flood plain maps and study, or the City risks suspension from the National Flood Insurance Program on that date. He stated that there are no substantive changes to the ordinance, only some minor changes that the City is required to adopt as part of the National Flood Protection Program. The most significant changes are the new flood plain maps and a new flood plain study. The City Council will review the ordinance amendment on August 23, 2004 and given the normal ordinance adoption process, the ordinance would become effective on October 23, 2004. He further explained that the City will not meet the requirements of adopting the ordinance and having it effective by September 2, 2004, therefore, the Commission may want to consider recommending the adoption of a short term maratorium on development in the city's special flood hazard areas until such time that the ordinance is effective following the city's requirements for publication, etc. If the latter option is chosen, persons will still be eligible for flood insurance during that time. Commissioner Boeck commented on the ro osed amendments and noted that the Shin le Creek P P g Watershed Management Commission had just been informed today that new grants are available to update flood plain maps again. Mr. Warren pointed out that the flood plain maps that are part of the current ordinance amendment have been at least in process for about ten years. He speculated that the grants referred to by Commissioner Boeck may relate to the next updating of the flood plain maps. The Commissioners briefly discussed the ordinance amendment and the possibility of adopting a moratorium. ACTION TO RECOMMEND APPROVAL OF AN ORDINANCE AMENDING CHAPTER 35 OF THE CITY ORDINANCES REGARDING FLOOD PLAIN MANAGEMENT There was a motion by Commissioner Boeck, seconded by Commissioner Rahn to recommend approval of an Ordinance Amending Chapter 35 of the City Ordinances Regarding Flood Plain Management. The motion passed unanimously. Voting in favor: Chair ProTem Newman, Commissioners Boeck, Rahn, Reem and Roche. The motion passed unanimously. ACTION TO RECOMMEND A 60 DAY EMERGENCY MOR.ATORNM THAT WOULD SUSPEND DEVELOPMENT 1N FLOOD ZONE AREAS WITHIN THE CITY OF BROOKLYN CENTER There was a motion by Commissioner Boeck, seconded by Commissioner Rahn to recommend approval of a 60 day emergency moratorium that would suspend development in flood zone areas within the City of Brooklyn Center. The motion passed unanimously. Voting in favor: Chair ProTem Newman, Commissioners Boeck, Rahn, Reem and Roche. The motion passed unanimously. OTHER BUSINESS There was no other business. ADJOURNMENT There was a motion by Commissioner Reem_, secanded by Commissioner Boeck, to adjourn the Planning Commission meeting. The motion passed unanimously. The meeting adjourned at 8:09 p.m. Chair Recarded and transcribed by: Rebecca Crass City Council Agenda Item No. 8g C.itv of BROOh �LY�v Office of the City Clerk CENTEK MEMORANDUM TO: Michael J. McCauley, City Manager FROM: Sharon Knutson, City Clerk DATE: August 18, 2004 SUBJECT: An Ordinance Amending Section 1-104 of the City Code Relating to the Licensing of Commercial Kennels; Amending Sections 12-901 and 12-903 of the City Code Relating to the Licensing of Rental Housing; Adding Section 23-006.05 to the City Code and Amending Sections 23-610, 23-661, 23-1204, and 23-2309 of the City Code Relating to General Licensing Regulations and the Payment of Property Taxes; Repealing Sections 23-1001 Through 23-1008 of the City Code Relating to the Licensing of Coin-Operated and Self-Service Dry Cleaning Machines At its June 28, 2004, work session, the City Council directed staff to prepare an ordinance amendment that would require real estate taxes be paid as a condition for approval of certain types of business licenses. The City Code currently requires that real estate taxes be paid prior to the issuance of licenses for liquor, pawnbrokers, secondhand goods dealers, motor vehicle dealerships, and tattoo and body piercing establishments. I've prepared the attached ordinance amendment implementing the condition of payment of property taxes for the following business licenses: Commercial Kennel Rental Housing Tobacco Related Products Bowling Alleys Public Dancing Filling Stations Saunas and Sauna Baths Massage Parlors Rap Parlors, Conversation Parlors, Adult Encounter Groups, Adult Sensitivity Groups, Escort Services, Model Services, Dancing Services, ar Hostess Services Amusement Devices The payment of property taxes requirement is added to Chapter 23 in the general licensing regulations section and lists out the specific licenses to which it applies. Pawnbrokers, secondhand goods dealers, motor vehicle dealerships, and tattoo and body piercing establishments were included in the listing, and the specific sections for each respective license were deleted in the ordinance amendment. Memo to Michael J. McCauley Page 2 August 18, 2004 City Attorney Charlie LeFevere drafted the sections relating to the licensing of rental hausing and included that the license holder be current on the payment of utility fees, taxes, and assessments due on the licensed property and other rental property in the city owned by the license holder. After review of requirements far certain types of licenses, it is also recommended to repeal Section 23- 1001 through 23-1008 relating to the licensing of coin-operated and self-service dry cleaning machines. This section has been in effect since 1961, and the regulations for building and ventilation safety issues relating to solvents used in the machines is handled through building permits and inspections. Attachment CITY OF BROOKLYN CENTER Notice is hereby given that a public hearing will be held on the 13th day of September 2004 at 7 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 Section 1-104 of the City Code Relating to the Licensing of Commercial Kennels; Amending Sections 12-901 and 12-903 of the City Code Relating to the Licensing of Rental Housing; Adding Section 23-006.05 to the City Code and Amending Sections 23-610, 23-661, 23-1204, and 23-2309 of the City Code Relating to General Business Licensing and the Payment of Property Taxes; Repealing Sections 23-1001 Through 23-1008 of the City Code Relating to the Licensing of Coin-Operated and Self-Service Dry Cleaning Machines. Auxiliary aids for persons with disabilities are available upon request at least 96 hours in advance. Please contact the City Clerk at 763-569-3300 to make arrangements. ORDINANCE NO. AN ORDINANCE AMENDING SECTION 1-104 OF THE CITY CODE RELATING TO THE LICENSING OF COMMERCTAL KENNELS; AMENDING SECTIONS 12-901 AND 12-903 OF THE CITY CODE RELATING TO THE LICENSING OF RENTAL HOUSING; ADDING SECTION 23-006.05 TO THE CITY CODE AND AMENDING SECTIONS 23- 610, 23-661, 23-1204, AND 23-2309 OF THE CITY CODE RELATING TO GENERAL LICENSING REGULATIONS AND THE PAYMENT OF PROPERTY TAXES; REPEALING SECTIONS 23-1001 THROUGH 23-I008 OF THE CITY CODE RELATING TO THE LICENSING OF COIN- OPERATED AND SELF-SERVICE DRY CLEANING MACHINES THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER DOES ORDAIN AS FOLLOWS: Section 1. Section 1-104 of the Brooklyn Center City Code relating to the licensing of commercial kennels is amended to read: Section 1-104. APPLICATION PROCEDURES AND ISSUANCE OF LICENSES. Applications for all licenses required by this ordinance shall be made to the City Clerk. 1. Apnlication for Commercial Kennel License. a. Initial application for a eommercial kennel license shall be made to the City Clerk. The application shall state the name and address of the applicant, the property address or legal description of the proposed kennel location, a sketch or drawing of the proposed kennel describing construction, operation, and the appraximate number of animals to be confined therein, together with their age, breed, and sex, and together with the applicable license fee. ORDINANCE NO. b. Hearin� Reauired. A commercial kennel license application shall be referred to the Public Health Sanitarian who shall review the kennel design and operation and make a recommendation to the City Council on the adequacy thereof. Applications for commercial kennel license shall be placed on the agenda of the City Council for a public hearing at the regular City Council meeting next following 14 days after the application is received. Not less than seven (7) days before the date of the public hearing, the City Clerk shall mail notice of the hearing to the applicant and to the owners of property within 150 feet of the proposed kennel location. The failure of any owner to receive such notice shall not invalidate the proceedings. c. Council ApbrovaL The City Council may approve the commercial kennel license and may attach to such approval any conditions necessary to insure compliance with this ordinance, with Chapter 19 of City Ordinances, and any other condition necessary to protect the health, safety, welfare, and property values in the immediate area. The City Council may deny a commercial kennel license upon finding that the establishment of the kennel would constitute a public nuisance, or would adversely affect the health, safety, welfare or property values of the person residing, living, or owning property within the immediate area. The form of approval for a license shall be the resolution of approval, a certified copy of which shall be forwarded to the applicant. d. Renewal of License. A copy of the commercial kennel license shall be forwarded to the City Clerk who shall maintain a register of kennel licenses. Subject to any time limitation set by the City Council, the license shall be valid for a period of one year and until October 1 of the then current calendar year and shall be renewable on October 1 of each year thereafter by the City Clerk upon payment of a renewal license fee set forth by City Council resolution, only in the event no complaint regarding the kennel's operation has been received during the license year. In the event that no revocation of the license is made or contemplated by the City Council, the license shall be renewable as set forth in this subdivision. e. License Revocation. In the event a complaint has been received by City officials, a report thereof shall be made to the City Council by the City Clerk and the City Council may direct the applicant to appear to show cause why the license should not be revoked. A license may be revoked for violation of this ordinance, Chapter 19 of the Brooklyn Center Ordinances, or any condition imposed at the time of issuance. f. Condition of License No license shall be �ranted or renewed for oneration on anv pronertv on which taxes. assessments. or other financial claims of the state. countv, school district. or citv are due, delinauent. or unnaid. In the event a suit has been commenced under Minnesota Statutes. Section 278.01-278.03. auestioning the amount or validitv of taxes, the Citv Council mav on application waive strict comnliance with this nrovision; no waiver mav be �ranted, however. L ORDINANCE NO. for ta�ces or anv nortion thereof which remain unnaid for a neriod exceeding one (11 vear after becomin� due. Section 2. Section 12-901 of the Brooklyn Center City Code is amended to read: Section 12-901. LICENSING OF RENTAL tJNITS. 1. License Required. No person shall operate a rental dwelling without first having obtained a license to do so from the City of Brooklyn Center as hereinafter provided. There shall be two types of licenses: regular and provisional. Provisional licenses are defined in Section 12- 913. 2. License Term. Regular licenses will be issued for a period of two years. Provisional licenses will be issued for a period of six months. All licenses, regular and provisional, will be reviewed every six months after the beginning of the license term to determine the license status. 3. License renewal. License renewals shall be filed at least 90 days prior to license expiration date. Within two weeks of receipt of a complete application and of the license fee required by Section 12-902, the Compliance official shall schedule an inspection. No application for an initial or renewal license shall be submitted to the city council until the Compliance official has determined that all life, health safety violations or discrepancies have been corrected. 4. Condition of License. Prior to issuance or renewal of a license and at all times durin�, the license term, a license holder must be current on the navment of all utilitv fees, taxes, and assessments due on the licensed nronertv and anv other rental real pronertv in the citv owned bv the license holder. In the event a suit has been commenced under Minnesota Statutes. Section 278.01-278.03. auestionin� the amount or validitv of taxes. the Citv Council mav on annlication waive strict comnliance with this nrovision: no waiver mav be sranted, however, for t�es or anv portion thereof which remain unnaid for a neriod exceedine one (11 vear after becomin� due. Section 3. Section 12-903 of the Brooklyn Center City Code is amended to read: Section 12-903. OWNER OR AGENT TO APPLY. License applicatioan or renewal shall be made by the owner of rental units or his legally constituted agent. Application forms may be acquired from and subsequently filed with the compliance official. The applicant shall supply: 1. First, middle (if any), and last name, address, date of birth, and telephone number of dwelling owner, owning partners if a partnership, corporate officers if a corparation. 2. Name, address, and telephone number of designated resident agent, if any. 3. Name, address, and telephone number of vendee, if the dwelling is being sold through a contract for deed. ORDINANCE NO. 4. Legal address of the dwelling. 5. Number of dwelling units within the dwelling. 6. Description of procedure through which tenant inquiries and camplaints are to be processed. 7. Status of utilitv fees, nro�ertv taxes, and other assessments on the dwelline and other rental real nronertv in the citv owned bv the annlicant. Every person holding an operating license shall give notice in writing to the compliance official within five business days after any change of this information. Notice of transfer of ownership shall be as described in Section 12-908. Section 4. The Brooklyn Center City Code is amended by adding a new Section 23-006.05 relating to general business licensing and the payment of property taxes. Section 23-006.05 PAYMENT OF PROPERTY TAXES REOUIRED. No license shall be �ranted or renewed for tobacco related nroducts; bowlin� allevs; uublic dancin�; fillin� stations; pawnbrokers; secondhand �oods dealers: motor vehicle dealershins: saunas and sauna baths; massaee parlors; ran narlors. conversation narlors, adult encounter �rouns, adult sensitivitv �rouns, escort services. model services, dancin� services. or hostess services; amusement devices: or tattoo and bodv niercin� establishments for oneration on anv nropertv on which taxes, assessments. or other financial claims of the state, countv, school district, or citv are due, delinauent, or unnaid. In the event a suit has been commenced under Minnesota Statutes. Section 278.01-278.03. auestionine the amount or validitv of taxes, the Citv Council mav on apnlication waive strict comnliance with this nrovision: no waiver mav be �ranted, however, for taxes or anv nortion thereof which remain unnaid for a neriod exceedin� one (1) vear after becomin� due. Section 5. Section 23-610 of the Brooklyn Center City Code relating to the licensing of pawnbrokers is amended to read: Section 23-610. PLACES INELIGIBLE FOR LICENSES. A license will not be issued or renewed under this section for any place or for any business: �I� t���;�:.g. 6�5sc�:�sti��;l�tw, i�i• ��tl��;;• lil���n:;i4i1 c;I:zi��zs c�9� i17e C'i1�� t��� t3�c: `�t<3tt: c,(' ;-1������:sc�t<� i��� ti��:: liw�:�a,��E:�';� 1���:>ii�e�5 �a�°�::�11i�� a�L: c�cli:�l���i��� �3nc3 ur��?ai�1.:] a. [l�.] If the premise is located within 300 feet of, or in the same building as; or on the same legally subdivided lot, piece, or parcel of land as any of the following uses: a school, day care center, church, hospital, on-sale liquor establishment, halfway house, currency exchange operation, theater, residence, secondhand goods dealer, tattoo establishment, body piercing establishment, massage parlor, sauna, or another pawnshop; provided however, that a pawnshop and a secondhand ORDINANCE NO. I goods dealer may occupy a single licensed premises in common if both activities are licensed for that premises; b. Where operation of a licensed premise would violate zoning ordinances; c. [i1.� Where the applicant's present license was issued conditioned upon the applicant making specified improvements to the licensed premise or ihe property of the licensed premise which improvements have not been completed or; d. [e.] Established as a pawnshop after April 2, 1996, which is within ten (10) driving miles of any gambling casino. Section 6. Section 23-661 of the Brooklyn Center City Code relating to the licensing of secondhand goods dealers is amended to read: Section 23-661. PLACES INELIGIBLE FOR LICENSES. A license will not be issued or renewed under this section for any place or for any business: [a. �t� t4r��::;, ���s��;�x��e��t� c�r c3tl�c;�� 1i�laa�ei��1 �.:(G�irx�s c?�` t��e C`it�- c�r l(��: ��'l�z����;;��a1:<� t���, l�cc:��see's (,��airl��,s ��r��:�n���;e �€.za. ci�:li�����x���t ,�t��� ��:�a��{�ic�;� a. Within 300 feet of, or in the same building as, or on the same legally subdivided lot piece, ar parcel of land as any of the following uses: a school or day care center if the secondhand goods dealer will receive firearms or if located within 300 feet of a pawnshop, tattoo establishment, currency exchange operation, massage parlor, body piercing establishment, sauna, or another secondhand goods dealer; provided however, that a pawnshop and a secondhand goods dealer may occupy a single licensed premises in common if both activities are licensed for that premises; b. [c;.] Where operation of a licensed premise would violate zoning ordinances; or c. [cl,] Where the applicant's present license was issued conditioned upon the applicant making specified improvements to the licensed premise or the property of the licensed premise which improvements have not been completed. Section 7. Section 23-1204 of the Brooklyn Center City Code relating to the licensing of motor vehicle dealerships is amended to read: Section 23-1204. CONDITIONS IN, OF AND FOR MOTOR VEHICLE DEALER LICENSES. No motor vehicle dealer's license shall be issued except under the following conditions: i ORDINANCE NO. a. No Class A motor vehicle dealer license shall be issued to any person who does not possess and operate under a new car franchise or contract in and for the City of Brooklyn Center, except that such license may be issued to any person not operating under such new car franchise if such licensee operates and maintains in Brooklyn Center an enclosed garage, showroom or other car display or rental structure on the land, which structure shall have a true and full City Assessor's value equal to at least twice the true and full value of land used by such licensee in the sale of new and used cars. b. Every Class A licensee shall provide, operate and maintain in the City of Brooklyn Center at least one equipped and manned repair shop or facility capable of repairing the motors, engines, brakes, lights, tires, electrical and other operating equipment of any motor vehicle sold by such dealer. c. No motor vehicle dealer license of any class shall be issued for any place or business ��1�ic-}� t4���� ��r�= �i:iizlc�uc:��t c�i:i t1�4 �•��;c�r�l.� c�{' t���. z;1`��c,�; �3t` ii�e: I?e��i����i:x� �:'6>����t� .�1.�.�clitc�r c���] which is not zoned therefore. d. Each licensee shall provide sufficient parking space on licensee's premises for all motor vehicles repaired or processed by such licensee. e. The applicant for any license required under this ordinance shall file an application for plan approval with the Secretary of the Brooklyn Center Planning Commission. Such application shall be accompanied by a detailed map, plat or drawing of the place of business for which such license is to be issued showing among other information, the address, location and dimensions thereof; the location, type and dimensions of any building, fence, and lighting equipment thereon; the intended plan of all vehicle parking, the location and dimensions of processed car storage space; all curb openings; all driveways and alleyways therein and thereon; and a certificate by the City Engineer approving the drainage and paving on such place of business. Unless changes are thereafter made, the same plan or map and other information need not be resubmitted for any renewaL f. The payment of the fees hereinafter set forth. g. The approval and filing of the bond as hereinafter set forth for Class A licenses. h. The obedience to all of the other conditions and provisions, governing such business or operation set forth in this ordinance, other ordinances of Brooklyn Center, and the laws of the State of Minnesota. Section S. Section 23-2309 of the Brooklyn Center City Code relating to the licensing of tattoo and body piercing establishments is amended to read: ORDINANCE NO. Section 23-2309. PLACES INELIGIBLE FOR LICENSE I�i� 1���.�t5�, s}:�4�1_1 ��e `�r° «r ����ac:�:v�::.�3 it�r c}��rc�r�t�tiE�t� ijt�t G�r�� �r {�r�� ��.}�ii:l€ t:a:txe;�. ���d�;�z;s�� =z�t:�, ��r a:�t���r f�t�4����°a�tl clGii���� cSf� t���. �;t4�ie. ��,��r�t� ���I:�E>��1 �.�;;i:���c:l, c�� c�-it�. �.rc: c;�rc�, ���l�r�c���:��t. ��r unpaict. Ct� t1��: ii:e��t :;�it l�<�:� �z���� cta�����������c:� ����ci�:t° 1�-1����:::���t�� '��.��i:�at�:�, ��:.clic�s� �7f�.{)l-?7�.!)3, ��r�L�iic�r�ir�� i.l�� s�����:��:����t: c�r �-;z(it�?t� ��f t����°�. �f�� {�'it>� ('r.���z��°zl n�z��- <i{���lie,&it:it�:t� a�ar�� :;iz�ict �:c�.������li�����;�:: ���:?1:�� t? ��f��i�;it.�r�a :t�£� ��t�i.�c�� �12z[1' �?f; k?I`t�t�EC C�i, ��C7Ii �•Z%(;C, �(.)7` �il'i�.;+ t�i' "tllt% �t�:I`� I;?I1 P�lt.�'t;'C?.t� �-E �7.1t_'-�l �"='.t.1:c`it[1?. LgI1���2�L�. :�i)i' �>�:r:ic_�c� ��.�;�°��:�i:�� (1 j 4c���� F�!te:.�� l7�cc.�z���it� c����.� a. No license shall be granted or renewed if the property is not properly zoned or does not qualify as a legal nonconforming use for tattooing and/or body piercing establishments. b. [c:.] Premises Licensed For Alcoholic Beverages. No license shall be granted or renewed if the premises is licensed for the furnishing of alcoholic beverages or is an adult establislunent pursuant to Section 35-2182. c. [ti.] No license shall be granted if the premises is within 340 feet of, or in the same building as, or on the same legally subdivided lot, piece, or parcel of land as any of the following uses: a church, school, day care center, hospital, on-sale liquor establishment, halfway house, currency exchange operation, theater, residence, pawnshop, secondhand goods dealer, massage parlor, sauna, or another tattoo or body piercing establishment. Section 9. Sections 23-1001 through 23-1008 of the City Code relating to coin- operated and self-service dry cleaning machines are hereby repealed. Section 10 This ordinance shall be effective after adoption and thirty days following its legal publication. Adopted this day of 2004. Mayor ATTEST: City Clerk Date of Publication Effective Date (Brackets indicate matter to be deleted, underline indicates new matter.) 1Vlemoran du.m To: Michael McCauley, City Manager From: Brad Hoffman, Community Development Director Date: 8/18/2004 Re: Hotel Development Agreement The attached deve�opment agreement for EDA consideration calls for the construction of a 200 room hotel of which a least 10 percent of the rooms must be suites and also a minimum 25,000 square foot water park. The development will also include a minimum 150 seat restaurant. It will be a Radisson or other flag acceptable to the EDA. (Note, the developer has had problems coming to terms with Radisson and is planning on a Holiday Select that is Inter Continentals upscale business/conference hotel. The developer and representatives of Inter Continental will be available to discuss this issue with the EDA.'The actual building would be extremely comparable if not more grand than the:originally proposed Radisson). The development will also include an enclosed, climate-controlled link between the hotef and the Earle Brown Heritage Center. Under the terms of the agreement, the EDA will sell its 6 plus acre site located immediately west of the Earle Brown Heritage Center to the developer for $2,165,000. Payment of the land is deferred for up to 20 years or at such time as the property is refinanced. The EDA acquired the property in November of 2000 for $1,075,000. Construction must commence by May 1, 2005.At1 plans and architectural design is subject to the approval of the EDA. The EDA will pay the developer $1,000,000 for the design and construction of the EDA portion of the physical link. The current cost estimate for this project is slightly more than $31,000,000. The developer is committed to a$7,000,000 equity contribution. They have a commitment for financing the project up to $19,000,000. With the EDA deferring the land sale and paying our share of the link, the is still a gap of approximately $2,000,000. Under this agreement, the developer would receive the TIF generated by this project for the remainder of the districts life. The district terminates with 2009 pay 2010. The developer can potentially capture 1 August 18, 2004 up to 4 years of TIF if they can start construction yet this year and then only to the extent that they have eligible and qualifying expenses. The maximum the developer could receive is $2,600,000. The dollar figure is based upon a minimum market value of $23,000,000 for the development. The agreement stipulates that the minimum capital expenditure for construction including furniture, fixtures and equipment but not the link will be $20,000,000. The principals in this project are Kent Oliver and John Sheehan. The property will be managed by OH Hospitality which is owned by Kent Oliver. The hotel will be a 7 story building. The EDA and the Hotel as part of the agreement will enter into a cross access agreement for the link and for parking. Operational items that have yet to be addressed but would be outside of this agreement include the interaction of staffs promoting and selling conferences and meetings The developer has yet to select a restaurant for the site although Kent Oliver does has experience with restaurants in his other hotels. As previously noted, the developer and a hotel representative will be available to discuss this project with the EDA. Z MEMORANDUM TO: Michael McCauley, City Manager FROM: Brad Hoffman, Community Development Director DATE: August 18, 2004 SUBJECT: Brooklyn Hotel Partners Development Agreement (Radisson) The EDA will hold a public hearing on the "Business Subsidy" as provided in the development agreement with Brooklyn Hotel Partners (Radisson) as well as the disposition (sale) of land to the partnership. Attached is a copy of the memo previously received by the EDA outlining the terms and conditions of the agreement. Representatives of the partners will be present for this meting. The resolution before the EDA approves the development agreement that address the terms of the sale and the business subsidy. Member introduced the following resolution and moved its adoption: EDA RESOLUTION NO. RESOLUTION AUTHORIZING EXECUTION OF A DEVELOPMENT AGREEMENT A. WHEREAS, the Economic Development Authority of Brooklyn Center, Minnesota (the "Authority") has caused to be prepared a Development Agreement (the "Development Agreement") between the Authority and Brooklyn Hotel Partners, LLC, a Minnesota limited liability company (the "Developer") in connection with a hotel development (the "Project") to be constructed by the Developer within a t� increment financing district. B. WHEREAS, based on the representations and covenants made by the Developer in the Development Agreement, the Authority has agreed to give the Developer certain tax increment assistance in connection with the Project. NOW, THEREFQRE, BE IT RESOLVED by the Economic Development Authority of Brooklyn Center as follows: Section 1. The Board of Commissioners hereby approves the Development Agreement in substantially the form submitted, and the Executive Director is hereby authorized and directed to execute the Development Agreement on behalf of the Authority. Au�ust 23. 2004 Date President Tl�e motion for the adoption of tl�e 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. STATE OF MINNESOTA COUNTY OF HENNEPIN ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER I, the undersigned, being the duly qualified and acting Secretary of the Economic Development Authority of Brooklyn Center, Minnesota, DO HEREBY CERTIFY that I have carefully compared the attached and foregoing extract of minutes with the original minutes of a meeting of the Board of Commissioners of the Economic Development Authority of Brooklyn Center held on the date therein indicated, which are on file and of record in my office, and the same is a full, true and complete transcript therefrom insofar as the same relates to a Resolution Approving and Authorizing the Execution of a Development Agreement. WITNESS my hand as such Secretary of the Economic Development Authority of Brooklyn Center this 23 day of August, 2004. Secretary DEVELUPMENT AGREEMENT BY AND BETWEEN ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER AND BROOKLYN HOTEL PARTNERS, LLC ,2004 1278398v10 TABLE OF CONTENTS Page ARTICLE I DEFINITIONS 3 Section 1.1 Definitions 3 ARTICLE II REPRESENTATIONS AND WARRANTIES 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 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 Plaris 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 ofthe 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 Section 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 i 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_ 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 1NSURANCE 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 10.1 Representation as to Development 28 Section 10.2 Limitations on Transfer 28 Section 10.3 Indemnification ..................................................................................29 Section Limitation ...........................................................................................29 ARTICLE XI EVENTS OF DEFALJI.,T AND REMEDIES 30 Section 1 l.l 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 S ection 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 129 Superseding Effect 34 Section 12.10 Relationship of Parties 34 Section Mediation ...........................................................................................34 Section Venue .................................................................................................34 Section 12.13 Provisions Surviving Rescission or Expiration 34 Section 12.14 Time of Essence 34 ia�s3ss�io -ii- I TA,BLE OF CONTENTS (continued) I Page EXHIBIT A LEGAL DESCRII'TION AND PID NUMBER OF DEVELOPMENT PROPERTY A-1 I EXHIBIT B SOURCES AND USES B-1 EXHIBIT C CERTIFICATE OF RELEASE OF FORFEITURE G1 EXHIBIT D QUIT CLAIM DEED D-1 EXHIBIT E PERMITTED ENCUMBRANCES E-1 EXHIBIT F MORTGAGE ..........................................................................................................F-1 EXHIBIT G LAND SALE PROMISSORY NOTE FOR BROOKLYN HOTEL PARTNERS LLC G-1 EXHIBITH SITE PLAN ...........................................................................................................H-1 EXHIBIT I BUSINESS SUBSIDY REPQRT .............................................................................I-1 EXHIBIT J CONCEPT RENDERING OF WATER PARK J-1 EXHIBIT K TIMELINE ..................................................................:.........................................K-1 EXHLBIT 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 DESCRIl'TION OF ELIGIBLE COSTS 0-1 1278398v10 -111- I DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT is made and entered into this day of 2004, b and between the E Y CONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER, a public body corparate and politic organized and existing under the i laws of the State of Minnesota (the "Authority") and BROOKLYN HOTEL PARTNERS, LLC, a Minnesota limited liability 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 "Ta�c Increment Act"), the Authority has created Tax Increment Financing District No. 02 as a redevelopment district (the "Tax Increment District"), and has adopted a t� 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 more particularly described in Section 4.12 (collectively, the "Minimum Improvements"). WHEREAS, in order to aehieve 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 Development Agreement and conveying the Development Property to the Developer, the Authority has required that the Developer enter into this Agreement to establish the Developer'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, morals 1278398v10 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. I 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: i i i 1278398v10 2 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. "Authority Documents" means the documents to be executed andJor delivered by the Authority at the Closing pursuant to Section 3.9 of this Agreement. "Authoriry 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. "Autlzoriry Representative" means the Executive Director of the Authority or his designee. "Authority 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 l, 2005. "Completio�i 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 specifications, drawings and related documents which are submitted to the building official of the City. Co�anection means the physical connection between the hotel ta be constructed on the Development Property as part of the Minimum Improvements and the Earle Brown Heritage Center, Iocated adjacent to the Development Property. "Construction Lender" means the lender or Ienders on the Construction Mortgage Loan. "Construction Mortgage Loan means the construction mortgage loan or loans to be obtained by the Developer to provide construction and permanent financing for the construction of the Minimum Improvements. "Cou�zry" 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 Iiability company, its successors or permitted assigns. "Developer's Docume�zts" means the documents to be executed andlor delivered by the Developer at the Closing pursuant to Section 3.9 of this Agreement. "Develo er Event o De ault" means the oecurrence of an Event of Default set forth in P .f .f 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. "Eligible 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 1, 201 l. "Minimum Improveme�its" means the construction of a full-service hotel consisting of I at least 200 rooms, an indoor water park consisting of at least 25,000 square feet and the connection which are more 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 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 "Note Payme�zt Date" means February 1 and August 1 of each year commencing August l, 2007 and continuing through the Final Payment Date. "Permitted E�zcumbrances" means the permitted encumbrances described in Exhibit E attached hereto. "Preliminary Pla�zs" 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 tlie 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 for the Redevelopment Project Area approved by the City and the Authority. "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 a� least one (1) full bathroom. "Tax IncrementAct" means Minnesota Statutes, Section 469.174 through 469.1799, as amended. "Tax Increment District" means Tax Incrennent 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 Increme�zt 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. "Timeli�ze" means the timeline attached hereto as Exhibit K. "Title Company" 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 or other similar judicial action, directly results in delays, (d) the outbreak of war, acts of terrorism or insurrection, (e) acts of any Federal, State or local governmental unit 1278398v10 5 I I i which directly result in delays, fl strikes or walkouts, (g) delays in delivery of materials for the Minimum Improvements, or (h) soil conditions of the Development Property. 1278398v10 6 ARTICLE II REPRESENTATIONS AND WARRANTIES Section 2.1 Reqresentations and Warranties of the Authoritv. The Authority makes the following representations and warranties: a The Aut O honty is a pubhc body corporate and polrtic 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 docunnents 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 consumrnation 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 or proceeding against the Authority before any court, arbitrator, adnninistrative 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 Authority or officer of the Authority, has 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 objectives 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 1278398v10 Tax Increments, among other things, to reimburse the Developer for a portion of the costs of the Eligible Costs. Section 2.2 ReAresentations and Warranties bv the Developer. The Developer represents and warrants to the Authority that. (a) The Developer is a limited liability company organized and in good 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 I transactions contemplated thereby, and the fulfillment of the terms and conditions thereof do not and will not conflict with or result in a breach of any of the terms or conditions of the Developer's organizational documents, any restriction or any agreement or 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 wiIl 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 or 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 ar�d deliver this Agreement or the validity of this Agreement. i (e) The construction of the Minimum Improvements 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 for 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 re uired b this A eement includin but not limited to the com letion of construction of the q Y g P Minimum Improvements by the Completion Date. (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 g (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 ARTICLE III CONVEYANCE OF DEVELOPMENT PROPERTY Section 3.1 Purchase and Sale of Develoument Pronertv. 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 ProAertv. The Authority and the Developer agree that the Closing on the conveyance of the Development Property shall occur on the Closing Date. In tl�e event that the Closing has not occurred 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 referred 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 I 1278398v10 1 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 accomrnodation to the Developer, and the Authority makes no representation or 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 Develouer's Ri�ht to Insnect. Developer is hereby granted the right to enter upon and inspect, analyze, and test the Development Property for 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 for 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 ar inspections referred to in this Section. Section 3.8 Contingencies to Closin� on Development Propertv. (a) Developer'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 VI. (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. tz�a39s�lo 11 (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 or waived in writing on or 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, far 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 I 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 subj ect to conditions, acceptable to the Authority, for the Hotel and the restaurant to be located in the Hotel 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 confractor ar 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 commencernent of the work covered by their respective contracts. Section 3.9 Closin� on the Develoument Prot�ertv (a) Time and Place. Subject to the terms and conditions of this Agreement, I 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 1 2 (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 or investigation, there are no outstanding, unsatisfied judgments, tax liens or bankruptcies against or involving the Development Property; that there has been no labor or 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 Glosing, the Developer shall execute, where appropriate, and deliver all af 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 for 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 work 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 premium for the title insurance policy, the mortgage registry taac 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. 1278398v10 1 3 I Section 3.11 Acknowled�ements bv Developer. 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 eonstruction 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. I i2�a39s�io 14 I 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 color 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 for which is attached hereto as Exhibit H) on the Development Property in conformance with the approved Construction Plans for the Minirnum Improvements. No material changes shall be made to the Construction Plans for the Minimum Improvements without the Authority's prior 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 linprovements 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 or regulations. If the Construction Plans are not approved by the Authority, then the Developer shall make such changes as the Authority may reasonably require. 1278348v10 1 I I (b) The approval of the Construction Plans, or any proposed amendment to 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, zoning regulation, environmental law or other law or regulation, or that the Minimum Improvements will meet the qualifications for i 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 the Construction Plans, or any proposed amendment to the Construction Plans, by the Authority will not constitute a waiver of any Developer Event of Default. 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 Development Property in conformity with the Construction Plans approved by the Authority. At all times during construction, upon the request of the Authority, the Developer will 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 Operation. (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 Rest�onsibilities of the Developer. (a) The Developer will construct, operate and maintain, or cause to be 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 conternplated in the Construction Plans approved by the Authority. i2�s39a�io 16 (b) The Developer will obtain, in a timely manner, all required permits, 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 for 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 Certificate 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 Authority 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 Forfeiture 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 recorded in the proper office for recordation of deeds and other instruments pertaining to the Development Property. Section 4.9 Completion. The Developer shall notify the Authority when the construction of the Minimum Improyements have been substantially completed; and, upon receipt of the Certificate of Occupancy, will provide the Authority with a copy thereof. Section 4.10 Certain Annrovals. The Developer acknowledges and agrees that any approval by the Authority given pursuant to this Agreement does not constitute the consent or approval of the City or any other governmental body or entity to the Development, the subdivision of the Development Property, the plans for 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 l�] I Section 4.11 Business Subsidv Agreement. (a) In order to satisfy the provisions of Minnesota Statutes, Section ll 6J.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 public 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 4.11 the Developer covenants that it will provide or cause to be provided 30 full-time equivalent 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 bySection 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 Closing 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 construet 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: I Grantor Value Grantor Value 1278398v10 g (h) The Developer represents that it is not in default on the date hereof on any subsidy agreernent entered into by the Developer under tlie 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 L 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 enalt of $100 for each subse uent da until the re ort is filed u to a P Y q Y p P maximum of $1,000. The Develo er shall file these re orts with the Authorit m care of the P P Y� i 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 far at least five years from the Benefit Date is a requirement of the Subsidy Law (subject to procedures therein allowing relaxation 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. i2�s39s�io 19 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 4.13 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 or withheld in the Authority's sole and absolute discretion. The Connection shall be enclosed, heated, air conditioned and have magnetic security doors at the common property line between the Earle Brown Heritage Center and the Development Property. The Authority shall control the hours the security doors 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 ta 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 2� AR I T CLE 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, ar(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 terms 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 eonditions 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 or 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 issuance 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 i (3) The principal of the Note and interest thereon shall be payable solely from Tax 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 Tax Increments for the payment of the accrued and unpaid interest on the Note are insufficient for 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 axe 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 or 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 Improvements. 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. I iz�s39s�io 22 ARTICLE VI CERTAIN FINANCING PROVISIONS Section 6.1 Encumbrance of the Development Propertv. Until the Completion Date, neither the Developer nor any successor 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, or portion thereof, whether by express agreement or operation of law, or suffer any encumbrance or lien to be made on or 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, organization and other actual costs of development). Section 6.2 Conv of Notice of Default to Mort�agee. 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 or 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�agee's Oqtion 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 aware 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 Autharity or otherwise limit any of the Authority's rights or remedies under this Agreement or the Note. 1278398v10 23 I ARTICLE VII REAL PROPERTY TAXES AND ASSESSMENTS Section 7.1 Real Pronertv Taxes and Assessments. The Authority shall pay any real estate t�es and instaliments of special assessments with respect to the Development Property payable prior to the year in which a Closing occurs. Anyreal 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 all 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 fhereafter. 1278398v10 24 ARTICLE VIII INSURANCE AND CONDEMNATION Section $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 Authority, 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 or 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 before the cancellation ar 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 ar 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 or 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 or 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 25 I successor will apply the Net Proceeds of any insurance relating to such damage received by the Developer or its successar 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 or 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 Improvernents 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 payment 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 and/or possession of the Development Property and Minimum Improvements, 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. I 1278398v10 26 ARTICLE IX DEVELOPER COVENANTS Section 9.1 Maintenance and Operation 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 working in or attending the Development for 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 Recinrocal 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 areas on the Development Property. 1278398v10 27 ARTICLE X TRANSFER LIMITATIONS AND INDEMNIFICATION Section 10.1 Representation as to Develot�ment. The Developer represents to the Authority that its purchase of the Development Property, and its other undertakings under this A eement are for the ose of deve lo in commercial ro erties and not for the u os i P� P g p P p r p e o f specu lation in lan d ho l ding. T he 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 qualifications and identity of the Developer are of particular concern to the Authority. The 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. 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, mortgage, transfer or otherwise encumber in any other mode or manner this Agreement, the Development Property or the Minimum Improvements, or any interest therein, without the 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 fu1fi11 the obligations 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 Aet, 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 obhgations with respect thereta 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 contractors, consultants and legal counsel, servants and employees thereof (hereinafter, for purposes of this Section, collectively the "Indemnified Parties") shall not be liable for and agrees to indemnify and hold harmless the Indemnified Parties against any and all losses or damages to property or 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 afaresaid 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. 1278398v10 29 L 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; or (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; or (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 bankrupt; or if a petition or answer proposing the adjudication of Developer, as a bankrupt or its reorganization under any present or future Federal bankruptcy act or any similar Federal or State law shall be filed in any court and such petition or answer shall not be discharged or denied within ninety {90) days after the filing thereof; or a receiver, trustee or liquidator of Developer, or of the Development, or part thereof, shall be appointed in any proceeding brought against Developer, and shall not be discharged �vithin 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 or 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 more of the following actions: (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 performance under this Agreement and the Tax Increment Note. I (c) If the Developer Event of Default occurs prior to the Closing Date, the Authority may cancel and terminate this Agreement, pursuant to Minnesota Statutes, Section 559.21 upon thirty (30) days written notice of default. 1278398v10 3 (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 enfarce performance and observance of any obligation, agreement, or covenant of the Developer under this Agreement. Section 11.4 Revestin� Title in the Authoritv. If, subsequent to conveyance of the Development Property to the Developer, and before issuance of any Certificate of Release of Forfeiture 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 ar 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 or successors in interest to and in the Development Property shall revert to the Authority. Section 11.5 Develoner 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 or 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 otherparty, 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, or for the enforcement of performance or observance of any obligation or agreement on the part of the Developer 1278398v10 3 1 contained in this Agreement, the Developer will on demand therefor reimburse the Authority for the reasonable fees of such attorneys and such other reasonable expenses so incurred. I 1278398v10 3 2 ARTICLE XII ADDITIONAL PROVISIONS Section 12.1 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 A�ents. 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 or other sales commission or fee payahle to any broker hired or engaged by the indemnifying party in respect of the transactions contemplated by this Agreement. Section 12.3 Titles 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 or 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 or delivered personally to Developer at C�4MBRIDGE 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 55$07, 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, or 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 Counterparts. 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�as9s�io 33 Section 12.7 Consents and Approvals. In all cases where consents or approvals are required hereunder, such consents or approvals sha11 not be unreasonably conditioned, delayed or withheld. All consents or approvals shall be in writing in order to be effective. Section 12.8 Representatives. Bxcept 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 Superseding 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 Relationshiq 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 mediator then any party can request the administrator of the Hennepin County District Court Civil ADR Program and/or 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 enforcement of this Agreement shall be controlled by and determined in accardance with the laws of the State of Minnesota, and the Developer agrees that a111ega1 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 Surviving Rescission or Exniration. Sections 10.3 and 1 I.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. 1278398v10 34 IN WITNESS WHEREOF, the Authority 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 1278398-v10 35 BROOKLYN HOTEL PARTNERS LLC By: Its: I I i2�s39svlo 3 6 EXHIBIT A LEGAL DESCRIPTIONS AND PID NUMBER OF DEVELOPMENT PROPERTY Legal Description: Lot 1, Block l, Addition A, 3137, Brooklyn Farm PID Number: 35-119-21-43-0016 A-1 EX�iIBIT B SOURCES AND USES Total Sources Construction Loan 1�, �03 200 Owner EquitY 7 �9� Other 3 5 (1 ("i Total Sources 2 g, 328 000 Total Development Costs Building Construction Construction Costs 2 2_ 60Q 000 Underground Parking Environmental Demolition Site Work Landscaping ROW Utilities Construction Contingency 6 50 000 Builders Risk Permits Sub-TotalBuildingConstruction 23,250,000 Land Acquisition 2 ,165 000 Soft Cost Construction City Fees Architectural 1 035 000 Engineering Plat Inspecting Architect Total Soft Construction Soft Cost Sales Broker Draws Broker Commissions Marketing Sales Office Marketing Advertising 1278398v10 B-1 �I Sub-Total Soft Cost Sales Soft Cost Operations LegalOperations 478,000 Insurance Operations CLC Plat Other Soft Cost Bank Reimbursable Real Estate Taxes Developers FFE 2,400,000 Sub-Total Soft Cost Operations Construction Loan Interest Construction Loan Closing Costs Title Insurance Mortgage Registration Tax 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 Development Costs 29,328,000 1278398v10 $-2 EXHIBIT C e CERTIFICATE OF RELEASE OF FORFEITURE WHEREAS, the Economic Development Authority of Brooklyn Center (the "Grantor"), a public body corporate and politic, by a Deed recarded in the Office of the County Recorder or the Registrar of Titles in and for the County-of Hennepin and State of Minnesota, as Document 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 Grantor and the Grantee dated 2004 (the "Development Agreement"); and WHEREAS, the Grantee has to the present date performed said covenants and conditions insofar as it is able in a manner deemed sufficient by the Grantor to permit the execution and recording of this certification; NOW, THEREFORE, this is to certify that all the conditions required to be satisfied by the Grantee under Section 4.8 of the Development Agreement have been satisfied by the Grantee therein and that the provisions for forfeiture of title and right to reentry for breach of condition subsequent by the Grantor, contained therein, are hereby released absolutely and forever insofar as they apply to the land described herein, and the County Recarder or the Registrar of Titles in and for the County of Hennepin and State of Minnesota is hereby authorized to accept for recording and to record the filing of this instrument, to be a conclusive determination of the satisfactory termination of the covenants and conditions of the contract referred to herein which 1278398v10 C-1 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 full 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 BROOKL.YN 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 corporate and politic organized and existing under the Constitution and laws of the State of Minnesota, on behalf of said Authority. Notary Public 1278398v10 C-2 EXHIBIT D QUIT CLAIM DEED Corporation Partnership or Limited Liability Company to Corporation, Partnership or Lirnited Liability Company No delinquent taxes 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 CONSIDERATION, 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 record, 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 Develo ment Agreement have been satisfied, P 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 Agxeement 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. i2�ss9s�io 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 Grantar 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 or rental of any portion of the Property. It is intended and agreed that the above and foregoing agreement and covenants shail be covenants running with the land, and that they shall, in any event, and without regard to technical I 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 e uit for the benefit q Y 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, or any part thereof or 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 B 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 1NSTRUMENT WAS DRAFTED BY: Briggs and Morgan, P.A. (MMD) W2200 First National Bank Building 332 Minnesota Street St. Paul, MN 55101 i2�s398vio D-3 Exhibit A Legal Description of the Property i2�a39s�io D-4 EXHIBIT E PERMITTED ENCUMBRANCES 1. Real estate t�es and special assessments due and payable in 2004 and subsequent years. 2. All easements, covenants, conditians 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. 12�s39g�io E-1 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. Mortga�e Pronertv_. That said Mortgagor 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 HUNDRED SIXTY-FIVE THOUSAND AND NO/100 DOLLARS ($2,165,000.00) (the "Land Sale Loan"), 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 paxk on tne 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 HUNDRED 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. IL 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; 1278398v10 F-1 D. That the Property shall be kept and maintained in good condition, repair, and operating condition free from any waste, misuse, or any hazardaus 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 Ieast the sum of �he full insurable value of the Property for 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 prior written consent of the Mortgagee; I. 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) I K. To comply with nondiscrimination, equal opportunity, affirmative marketing and minority and women's business enterprises set forth in 24 CFR 51 L 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 Standaxds. 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. 12'18398v10 F_2 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. IIL 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 OCCUPRNT OF THE PROPERTY AND PUBLICATION OF SAID NOTICE FOR SIX WEEKS IN 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 1N SAID STATUTES, EXPRESSLY WANES 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 e�ent of default; 1278398v10 F-3 2. The action required to cure such default; 3. A date, not less than ten (10) days from the date the notice is mailed to Mortgagor, by which such default on or before the date specified in the notice may result in acceleration of the sums secured by this Mortgage and sale of the Property. The notice shall 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 Mortgagee's option, may declare all of the sums secured by the Mortgage to be immediately due 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 of: a. A sale of the Property pursuant to the power of sale contained in this Mortgage; or b. A judgment enforcing this Mortgage if: (i) Mortgagor pays Mortgagee all sums constituting the default actually existing under this Mortgage and the Note at the commencernent 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 Martgage 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. (a) Mortgagor shall default in the payment of the principal sum of the Note when due and which default shall continue without cure for thirty (30) days following 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 aecordance with the provisions of applicable documents and which default shall continue without cure for thirty (30) days following written notice thereof by Mortgagee. i27s39g�io F-4 c Mo O rtgagor shall default in the erformance or observance of an other p Y agreements or conditions re uired to be erformed or observed b Mort a ar q p y g g under tYus Mortgage or the Note which default shall continue without cure far thirty (30) days following written notice thereof by Mortgagee. (d) Any representation or warranty made by a Mortgagor in this Mortgage or any collateral document shall prove untrue in any material respect or materially misleading as the time such representation or warranty was made. (e) Mortgagor shall become unable to pay its debts as the same become due, or shall make an assignment for the benefit of creditors or shall be adjudicated bankrupt; or shall file a voluntary petition in bankruptcy or to effect a plan or other arrangement with creditors, or to liquidate assets under court supervision, or shall have applied for or permitted the appointment of a receiver or trustee or custodian for any of the property or assets of Mortgagor or a trustee, receiver or custodian shall have been appointed for any" 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. Execution shall have been levied against the Project or 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 for a period of more than sixty (60) days. (g) The Project is materially damaged or destroyed by fire or other casualty and the loss in the reasonable judgment of Mortgagee, is not adequately covered by additional owner equity ar 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. Subject 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 1278398v10 F-5 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 (U12) 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 Mortgagar will permit the Mortgagee's authorized representatives to enter the Property at all times during normal business hours for the purpose of inspecting the sarne; provided the Mortgagee shall have no duty to make such inspections and shall not incur any liability 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 or 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 or 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 deterrnine, but only with the prior written consent of the Mortgagee, subject to the Permitted Encumbrances identified in Exhibit B. J. (Reserved) K. If the Mortgagor fails to perform any of the covenants and agreements contained in this Mortgage or if any action or proceeding is commenced which effects the Property or the interest of the Mortgagee therein, or the title thereto, then the Mortgagee, at Mortgagee's option, upon thirty (30) days advance written notice to Mortgagor, may perform such covenants and iz�as9a�io F-6 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 IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be duly exeeuted 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. Notary Public THIS 1NSTRUMENT WAS DRAFTED BY: Briggs and Morgan, P.A. 2200 First National Bank Building 332 Minnesota Street Saint Paul, Minnesota 55101 Telephone: (651) 808-6600 Fax: (651) 808-6450 1278398v10 F'_g EXAIBIT 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 RECENED, 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 permanent loan (not a construction loan) on the Development Property in excess of the original principal amount of the loan; or (5) tne 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 Development 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 according to the Minnesota State Statutes. 1278398v10 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 ar 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: iz�s39s�io G-3 I 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 for 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 tax 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 (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 continuously used and occupied the Project, and the Developer expects said occupancy to continue for the foreseeable future. Verify 1278398v10 I_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 By: 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 Director i2�s39avio I-3 EXHIBIT J CONCEPT RENDERING OF WATER PARK i 1278398v10 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 l, 2005 Closing May l, 2005 Commencement of Construction of Minirnum Improvements December 31, 2006 Substantial Completion of Construction of Minimum Improvements 1278398v10 K-1 EXHIBIT L RECIPROCAL ACCESS AND PARKING AGREEMENT 1278398v10 L-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 BROOKLI'N HOTEL PARTNERS, LLC, a Minnesota limited liability company ("Developer"), as of 200_ (the "Execution Date"). RECITAL S A. EDA is the owner of certain land located in Hennepin County; Minnesota, which is 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 reeiprocal easements, in, to, over, and across their respective properties. AGREEMENT: EDA and Developer agree as follows: l. Definitions 1.1 Center. The "Center" shall mean the Earle Brown Heritage Center and the adjacent hoteUindoor 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. 1657143v1 1.3 Develoner Tract. The "Developer Tract" shall mean the property which is legally described as: Lot 1, Block 1, Brooklyn Farm, according to the plat thereof on file and of record in the affice 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 Aereement. 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 same may be amended, supplemented and extended from time to time. 1.5 EDA Tract. The "EDA Tract" shall mean the property which is legally 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 HoteUWateraark Facilitv. The "HoteUWaterpark Facility" shall mean the buildings and improvements of the hotel and indoor waterpaxk facility to be constructed and loeated by Developer on the Developer Tract in accordance with and pursuant to the terms of the Development Agreement. 1.8 Occunant. "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 compliance 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 sueh 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 transfened. 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 1657143v1 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 far 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. [Should we provide automatic release upon transfer, without notice requirement?] 1.10 ParkinE 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. l.l 1 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. L 13 Permittee. "Permittee" shall mean all Occupants and the officers, directors, employees, agents, contractors, customers, vendars, 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 or notice. L 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 or government entity. 1657143v1 3 1.15 Site Plan. The "Site Plan" shall mean the site plan which is attached to this Agreement as Exhibit A. 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 continue 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 a11 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 or 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. e 3. Easements 3.1 Parkin�, Each Owner, for itself and its successors and assigns, hereby grants and conveys to each other Owner for 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 and across the Parking Lot Area of the grantor Owner's Tract. Such easement rights shall be subject ta the following reservations and agreements as well as other provisions contained in this Agreement: 3. L 1 An Owner may at any time make changes to, close off, andlor 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. 1657143v1 4 3.1.1.2 No governmental rule, ordinance ar 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. 3.1.1.3 The number of remaining parking spaees 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 therefor. 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, far itself and its successors and assigns, hereby grants and conveys to each other Owner for its use and the use of its Permittees, 1657143v1 5 i in common with others entitled to use the same, a perpetual, non-exclusive easernent for the passage of pedestrians over and across the Pedestrian Link Corridor 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: 3.2.1 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 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 elosing 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 Corridar Area or its Tract. 3.2.4 No Permittee shall be charged for the right to use the Fedestrian Link Corridor Area. 3.2.5 The Pedestrian Link shall be used only as a pedestrian walkway. 3.3 Tempararv Access for Construction. EDA, for itself, its snccessors 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 for 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 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. Nothing contained in this subsection 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 1657143v1 6 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) such changes, closing and/ar 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 andlor 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 buildmgs, 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 any purpose 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. [Is EDA property subject to other easements for access or parking? Any shared utilities?] 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 specrfications approved by EDA under the Development Agreement. 4.2 Modifications. No change, modification or 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 Corridor Area far pedestrian access is not unreasonably restricted or hindered. 4.2.2 No governmental rule, ardinance 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. i6s�la3�i 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. 4.2.4 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 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 enelosed 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 doirig 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 local laws, codes and ordinances. 4.3 Certain Onerations. The Owner of the EDA Tract shall 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 appropriate in its sole discretion. The Pedestrian Link shall have passage doors into the Conference Facility and the HoteUWaterpark Facility. Said doors shall remain closed (other than to allow passage of pedestrians, or 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. [specified temperatures for HVAC?] 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, I 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 1657143v1 i 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 I [Life safety systems?]. Each Owner shall operate, maintain and repair all utilities, services and systems serving the Pedestrian Link that are located within its Tract, as well as all equipment used to monitor such utilities, services and systems, and the costs of such o eration, maintenance and P repair shall be paid by such Owner. Each Owner shall pay for all utilities serving the Pedestrian Link on its Tract. [Any need to address provision of emergency services from one Tract or the other?] 4.5 Ownershib. Once the initial construction of the Pedestrian Link has been 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, subject to the terms and conditions 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 occurrence, 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 orxestoration 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 destroyed or partially destroyed by fire or other casualty ar occurrence and the Owner thereof does not rebuild ar restare such Facility as provided in subsection 7.2 (c) (the "non-rebuilding Owner"), the Pedestrian Link need not be restored 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 non-rebuilding Owner. In such event the non-rebuilding Owner shall also perform the same work (including removal of the Pedestrian Link and ground axea 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. [Does this seem fair to EDA?] If insurance proceeds are insufficient to cover the expense of such repairing and restoring as required herein, the non- rebuilding Owner shall, nonetl�eless, 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 Hotel/Waterpark Facility, provided, however, that if an Owner intends to replace its Facility and the same is rebuilt within two years of any such dernolition 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 any Facility to be demolished, (b) supporting and securing of the Pedestrian Link during demolition and/or restoration of the replacement Facility, (c) repair or replacement of all Pedestrian Link components 1657143v1 9 I i 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 Pedestrian Link sha11 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 demolition or destruction, the easement granted herein over the Pedestrian Link 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 �hat 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 ordinance 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 for the construction of the Pedestrian Link in accordance with and pursuant to the terms of the Development Agreement. Hawever, 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 af 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. [Should cost of repair work be included in the $1MM to be paid by EDA?] 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 appiicable federal, state and locai laws, codes and ordinances and using only all new materials and equipment, and (b) the Pedestrian Link and restated facilities and impravements to be installed and/or constructed by or under Developer will be free from material defects for a period of one year beginning 30 days following the issuance of a certificate of occupancy for the Pedestrian Link. 165�143v1 1 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 for 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 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 harmless 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 or 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 far any consequential damages. 6. Maintenance and Rebair 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 nnaintenance 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 or replaced with materials at least equal to the original quality of the materials being repaired ar replaced. The maintenance and repair obligation for the Parking Lot Area in any event shall include but not be limited to the following: 1657143v1 1 1 6.2.1 Road, Drivewav and Access Areas. Maintaining a1i paved surfaces and curbs m a smooth and evenly covered condrtion which mamtenance work shall include cleaning, sweeping, restriping, repairing, resurfacing and overlays. 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 Sien and markers. Placing, keeping in repair, replacing and repainting any appropriate directional signs or markers. 6.2.4 Li�htin�. Operating, keeping in repair, cleaning and replacing when necessary any lighting facilities in the Parking 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 corridors, doors and glass shall be periodically cleaned. 6.2.6 Si�na�e and Exits. Maintaining, repairing and replacing all directorial signs and emergency exit signage. 6.2.7 Structure. Maintaining, repairing and replacing when necessary the Pedestrian Link, its structural components, roof, drainage facilities and access doors and windows. 6.2.8 HVAC. Maintaining, repairing and replacing when necessary all 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 Iighting, and all securitty systems. 6.3 Pavment for Ne�li�ence. Notwithstanding the provisions of subsection 6.1 (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. 1657143v1 12 I 6.4 General Easement Renair 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 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 ar better than the condition which existed prior to the commencement of such work. Buildin� Imnrovements 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 or 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 or demolished, or (b) erect other building improvements or improvements in such location, or (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 altematives 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) ar(b) of this subsection. 8. Develooer ParkinE Developer, for itself and its successors and assigns, agrees that the parking area contained on the Developer Tract shall contain sufficient parking spaces in order 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. 1657143v1 1 3 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 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. [EDA to have its insurance carrier/agent review these specifications make appropriate adjustments for EDA insurance.] 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 I limited 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 canstructing Owner shall carry such Property Insurance Policy in Builder's Risk form or comparable coverage written on a completed value basis, and shall include broad form contractual liability, products/completed operations, independent contracts, broad form praperty 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 liability (including reasonable attorneys' fees and cost of suit incurred in connection with all claims) axising 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 Agreement, each Owner (the "Releasing Owner") hereby releases and waives for itself and on behalf of its insurer, any other Owner (the "Released Owner") from any liability for any loss or damage to all property of such Releasing Owner located upon any portion of the Center, wluch lass or damage is of the type generally covered by property insurance provided under the Comprehensive Replacement Cost Forrn, 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 actually carried. Each Owner agrees to use its best efforts to obtain, if needed, appropriate endorsements to its olicies of P. msurance with respect to the foregoing release; provided, however, that failure to 1657143v1 14 obtain such endorsements shall not affect any release given pursuant to this subsection. 9.5 General Reauirements. The insurance required by this Section shall specifically extend to contractual obligations of the insured party arising out of the indemnification obligations set forth in this Agreement. Such insurance may be carried under a blanket policy or policies which includes other liabilities, 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 taxes 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 foreclosnre 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 or 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 sueh release and discharge within such 14 day period, the Owner of the Tract against which sueh 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 1657143v1 15 L Agreement. Provided that EDA fulfills its obligations to pay Develaper 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 aIl 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 work performed by or under Developer, on the EDA Tract. 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 for a specific time period, consent shall be given or withheld within 30 days of the receipt of the request for 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 Agreement shall be held by the Owner owning the Tract to which such right relates. Any purchaser of any Tract in the Center shall automatically acquire any right to consent at such time as such 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 or 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 or 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 Owner 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 restore 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 other property interest existing pursuant to this Agreement which does not reduce ar 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. 1657143v1 1 6 I 14. Default 14.1 Force Maieure. The time within which any Owner to this Agreement is required 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 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 occurrenee causing the delay and if the Owner so exeused 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' priar 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, or (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 suck� 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 the terms, provisions, covenants or conditions of this Agreement that the Defaulting Owner is obligated to perform 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 reflecting costs) the Defaulting 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 1657143v1 1"] held by any institutional lender, or any extension, renewal, modification or 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 record 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 Min.nesota gaverning mechanics liens. 14.4 Estop�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 subsection14.3, against any Tract, and whether or 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 delir�quent 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, abave, 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 Notwithstandine Breach. It is expressly agreed that no breach of this Agreemenf shatl (a) entitle any Owner to eancel, 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. 15. Notices All notices given under this Ageement 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 1657143v1 1 I EXHIBIT M INTENTIONALLY OMITTED iz�a39a�ro M-1 EXHIBIT N FORM OF TAX INCREMENT NOTE UNITED STATES OF AMERICA STATE OF MINNESOTA COUNTY OF HENNEPIN ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER, MINNESOTA TAX INCREMENT 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, or its registered assigns (the "Registered Owner"), but only in the manner, at the times, from the sources of revenue, and to the extent hereinafter provided. The principal amount of this Note 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 or in part pursuant to the terms hereof. 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 Payment Date") (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 Tax 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 "T� 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, 1278398v10 N-1 I 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 earliest. 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 general obligation of the City of Brooklyn Center, Minnesota, 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 prior written consent of the Authority. In order 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 performed 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 maruler 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 actual issuance and delivery, does not cause the indebtedness of the Authority to exceed any constitutional statutory limitation thereon. 1278398v10 N_2 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 I Chair Executive Directar i I 1278398vI0 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 DIRECTOR l Brooklyn Hotel Partners, LLC 200 i2�ss9s�io N-4 EXHIBIT O DESCRIPTION OF ELIGIBLE COSTS Parking 1 f Landscaping Lighting Signage SAC and WAC I Storm Sewer Improvements Soil Corrections Handicapped Accessibility Improvements Building Sprinkler System Site Improvements Footing and Foundations 1278398v10 O-1 AGENDA CITY COUNCIL WORK SESSION August 23, 2004 Immediately Following Regular City Council Meeting at 7:00 P.M City Council Chambers 1. Smoking Ban a. Mayor Kragness: Resolution supporting Hennepin County smoking ban b. braft i. Letter to Restaurants Liquor License holders ii. Survey for City Watch 2. Council Member Carmody: Discussion of potential funding for Reach program 3. Discussian of letter from City of Plymouth inquiring about interest in a meeting of Shin le Creek Watershed Mana ement cities I g g 4. Discussion of policy development regarding the use of Constitution Hall by non- profit organizations for fund raising auctions/sales 5. Council review of Draft Council Leadership Workshop report and goals statement 6. October l l t City Council meeting: continuing review of whether to cancel due to LMC conference I 7. Adjourn I I. y City of Brooklyn Center A Millennium Community MEMOR.ANDUM TO: Mayor Kragness, Councilmembers Carmody, Lasman, Niesen, and Peppe FROM: Michael J. McCaule City Manager DATE: August 18, 2004 SUBJECT: Work Session Agenda Items A�enda Item 1. Smokin� Ban 1. a. Mayor Kragness requested that the Council review the ericlosed resolution format that she received urging Hennepin County to adopt a county-wide smoking ban. b. In response to the August 9�' Work Session, draft letters to restaurants/liquor license holders and a survey form for City Watch are included. City Watch would be delivered around December 17�'. This would a11ow for responses in January and Council review at the beginning of February or the end of January as the Council would direct. Agenda Item 2. Reach Program Council Member Carmody requested Council discussion regarding whether the Council wishes to include the Reach program in the 2005 budget so that a response can be given to the presentation made by Reach at a recent City Council meeting. Agenda Itern 3. City of Plymouth inquiry As indicated in the attached letter from the Plymouth City Manager, Plymouth is inquiring if cities in the Shingle Creek Watershed wish to meet to discuss capital improvement funding. Currently, capital funding is done through grants and individual city expenditures. This has avoided conflicts over use of capital funds raised throughout the district being directed to one place or another. The benefits of that approach are that one area is not being taxed to fund improvements in another. The shortcomings are that improver�ents may not be made due to a lack of funding in one community where the benefits might inure to downstream communities. The item is on the agenda far City Council direction on a response to the inquiry. 6301 Shingle Creeii Parkway Recreation and Community Center Fhone TDD Number Brooklyn Center, MN 55430-2199 (�63) 569-3400 City Hall TDD Number (763) 569-3300 FA.X (763) 569-3434 FAX (763) 569-3494 www.cityofbrooklyncenter.org Agenda Item 4. The City has been asked about a potential fundraising activity in Constitution HaIL This is a type of activity that has not been held in Canstitution Hall. As indicated in the attached memo, this is a policy issue that needs Council direction. Agenda Item 5. 'The Draft report on the Council Workshop and Goals for 2005 is attached for Council review prior to placement on a regular agenda for adoption. Agenda Item 6. The City Council diseussed the October 11 City Council meeting on July 2f and decided to leave the meeting date on the schedule or the time being. Two City Council members indicated at that time that they would be attending the League of Minnesota Cities Annual Conference in Duluth that is being held on October 10�'through October 12 I would like to discuss contingency planning if the meeting date is retained to insure a quorum. With only 3 Council members planning to attend, it may be necessary to have a back-up plan should one of the 3 rnembers be unable to attend at the last minute due to an unavoidable eonflict. i CITY OF (CITY NAME) HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. RESOLUTION SUPPORTING, ADVOCATING AND URGING THE HENNEPIN COUNTY BOARD OF COMMISSIONERS TO ENACT A COUNTY-WIDE SMOKE FREE ORDINANCE PROHIBITING SMOKING IN PLACES OF EMPLOYMENT BE IT RESOLVED by the City Council of the City of (city name), Minnesota (the "City"), as follows: WHEREAS The (city name) City Council does hereby find that: (1) Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution, and that breathing secondhand smoke (also known as environmental tobacco smoke) is a cause of disease in healthy nonsmokers, ineluding heart disease, stroke, respiratory disease, and lung eancer. The U.S. Surgeon General has determined that secondhand smoke is responsible for the early deaths of 65,000 Americans annually. (2) The Public Health Service's National Toxicology Program has listed secondhand smoke as a known carcinogen (U.S. DHHS, 2000, citing Cal. EPA, 1997). (3) Secondhand smoke is particularly hazardous to elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease. Children exposed to secondhand smoke have an increased risk of asthma, respiratory infections, sudden infant death syndrome, developmental abnormalities, and cancer. (4) The Americans With Disabilities Act, which requires that disabled persans have access to public places and workplaces, deems impaired respiratory function to be a disability. (5) The U.S. Surgeon General has determined that the simple separation of smokers and nonsmokers within the same air space may reduce, but does not eliminate, the exposure of nonsmokers to secondhand smoke. The Environmental Protection Agency has determined that secondhand smoke cannat be reduced to safe levels in businesses by high rates of ventilation. Air cleaners, which are only capable of filtering the particulate rnatter and odors in smoke, do not eliminate the known toxins in secondhand smoke. i (6) A significant amount of secondhand smoke exposure occurs in the workplace. Employees who work in smoke-filled businesses suffer a 25- 50% higher risk of heart attack and higher rates of death from cardiovascular disease and cancer, as well as increased acute respiratory disease and measurable decrease in lung function. (7) Smoke-filled workplaces result in higher worker absenteeism due to respiratory disease, lower productivity, higher cleaning and maintenance costs, increased health insurance rates, and increased liability claims for diseases related to exposure to secondhand smoke. (8) Smoking is a potential cause of fires. WHEREAS, (city name) residents and business commumty are concerned that the enactment of a local ordinance prohibiting smoking in places of employment will result in an un- level playing field for the community's businesses because businesses in adjacent communities will not be subject to the same regulation; and WHEREAS, the (city name) City Council has heard from many residents about their support for smoke-free workplaces; and WHEREAS the City deems it prudent, reasonable and necessary to support, advocate and urge the passage of a county-wide ordinance (1) to protect the public health and welfare by prohibiting smoking in public places and places of employment; and (2) to guarantee the right of nonsmokers to breathe smoke free air, and to recognize that the need to breathe smoke free air shall have priority over the desire to smoke. NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF (city name), MINNESOTA THAT: The City Gouncil hereby supports, advocates and urges the Hennepin County Board of Commissioners enact an ordinance establishing all places of employment in Hennepin County as smoke free. The City Council recognizes that this resolution is only a first step in creating smoke-free workplaces in (city name) and will continue to address the problem of smoking in public places and places of employment on a city level. The City Council will continue to take leadership an this issue and will work to protect the health of the citizens of (city name) by guaranteeing their right to smoke free air. ADOPTED by the City Council this (date) day of (month, year). (mayor' s name Mayor ATTEST: Proposed Hennepin County Smoke-Free Ordinance Page 1 of 1 Michael McCauley From: Myrna Kragness Sent: Wednesday, August 18, 2004 5:07 PM To: Michael McCauley Subject: FW: Proposed Hennepin County Smoke-Free Ordinance From: Lynn.Moore@co.hennepin.mn.us [mailto:Lynn.Moore@co.hennepin.mn.us] Sent: Wed 8/18/2004 4:19 PM To: mbernhardson@ci.bloomington.mn.us; Myrna Kragness; stevela@ci.brooklyn-park.mn.us, bheitkamp@ci.champlin.mn.us; tgerhardt@ci.chanhassen.mn.us; svergin@ci.corcoran.mn.us; anorris@ci.crystal.mn.us; sborders@ci.dayton.mn.us; danay@cityofdeephaven.org; sneal@edenprairie.org; ghughes@ei.edina.mn.us; LynnRJohn@aoLcam; linda.loomis@ci.golden-valley.mn.us; grfd@mr.net; tnagel@savillex.com; jcpaulli@ties2.net; bscott@townofhassan.com; genellie@hopkins.mn.com; thirsch@ci.independence.mn.us; sstahmer@ci.long-lake.mn.us; lorettocityclerk@hotmaiLcom; msteffenson@ci.maple-grove.mn.us; cityhall@mapleplain.com; chad.adams@ci.medina.mn.us; mayor@ci.minneapolis.mn.us; Jgunyou@eminnetonka.com; mtkabch@qwest.net; dlotter@ci.minnetrista.mn.us; KandisHanson@cityofmound.com; ddonahue@ci.new-hope.mn.us; rmoorse@ci.orono.mn.us, Ilarson@ci.osseo.mn.us; lahrens@ci.plymouth.mn.us; sorduno@ci.richfield.mn.us; mholtz@diversifiedadjustment.com; nancye@cityofrockford.org; geitel@ci.rogers.mn.us; mmornson@ci.saint- anthony.mn.us; stboni@visi.com; jjacobs@wilkersonhegna.com; wlove@ci.shorewood.mn.us; billweeks@mchsi.com; sirvine@cityoftonkabay.net; alo@wayzata.org; danay@cityofdeephaven.org Cc: Kerri.Pearce.Ruch@co.hennepin.mn.us Subject: Proposed Hennepin County Smoke-Free Ordinance Dear Mayors, City Administrators, City Managers, City Clerks, or Other City O�cials: Please find the attached document containing the proposed Hennepin County Smoke-Free Ordinance. This is a County-wide ordinance. (See attached fite: Ordinance #24.doc) I have also included the press release announcing Hennepin Counry's plans to hold a public hearing on this proposed Ordinance with contact names and telephone numbers to call with questions: (See attached file: Smoking ban hearing NR.doc) Thank you. Lynn A. Ivloore Supervising Environmentalist Epidemiology Environmental Health Hennepin County (952)351-5215 fax: (952) 351-5222 08/19/2004 Hennepin County News Public Affairs 612-348-3848 300 South Sixth Street, Minneapolis, MN 55487-0011 Aug. 17, 2004 Contact: Commissioner Gail Dorfman, 612-348-7883 Commissioner Randy Johnson, 612-348-7885 Carolyn Marinan, Public Affairs, 612-348-5969 Hennepin County conducts public hearing on smoking ban Hennepin County will conduct a public hearing on a proposed countywide ban on smoking in most food establishments on Tuesday, Sept. 14, at 1:30 p.m. on the 24 floor of the Hennepin County Government Center. The smoking ban proposal, contained in Ordinance 24, would apply to all of Hennepin County, creating smoke-free environments in licensed food or beverage establishments including bars. Exemptions would include outdoor spaces of food establishments, private clubs, and guest rooms of hotels or motels. Ordinance 24 will be available on Hennepin's Web site on Aug. 18. To view, log into www.hennenin.us, scroll to the bottom of the page and click on "Ordinances" in the "Reference" box on the right-hand side. To receive a printed copy, call Hennepin County Public Health at 612-348-3925 or contact the Clerk of the Board at 612-348-5433. If you want to testify at the Sept. 14 hearing, please call the Clerk of the Board at 612-348- 5433 to register. Written testimony may also be submitted for the record. Send your comments to: Clerk of the Board, Hennepin County Government Center, 300 S. 6�' St., A-2400, Minneapolis, MN 55487. Commissioners will consider a smoking-ban ordinance at their Aug. 24 committee meeting prior to the Sept. 14 full board meeting. To testify at this meeting, cantact Commissioner Gail Dorfman's office at 612-348-7883 to register. —30— News releases, news tips and fact sheets are available on Hennepin County's Web site www.hennepin.us under "Your County Government" and "Newsroam. ORDINANCE NO. 24 SMOKE-FREE ORDINANCE "The Hennepin County Board of Commissioners does ordain:" SECTION 1: PURPOSE. 1.01 Purpose. This Ordinance is enacted to protect the health, safety, and general welfare of the people of Hennepin County pursuant to powers granted under Minnesota Statutes Chapters 945A and 375 and subsequent recodifications and/or amendments, and other applicable legislation, as may be adopted from time to time. 1.02 Obiectives. The principal objectives of this Ordinance are: A. To prevent secondhand smoke exposure and its adverse health effects on patrons and employees of food establishments; and B. To protect, in particular, the health of vulnerable populations including children and those with chronic health conditions. SECTION 2: GENERAL PROVISIONS. 2.01 Sco�e. This Ordinance shall be applicable to all food establishments. 2.02 Prohibitions. A. Smoking is prohibited in the inc}oor areas of food establishments unless atherwise excluded. B. No#hing in this Ordinance shall prevent the proprietor or other person in charge of any place including, without limitation, any residence, motor vehicle or outdoor space, from prohibiting smoking in any such place. C. Nothing in this Ordinance shall prevent other local levels of govemment within Hennepin County from adopting measures to protect citizens from secondhand smoke. D. This Ordinance is intended to complement the Minnesota Clean {ndoor Air Act, Minnesota Statutes, Sections 144.411 to 144.417, or other applicable law, as amended from time to time. Nothing in this Qrdinance authorizes smoking in any Iocation where smoking is prohibited or restricted by other laws. 2.03 Exclusions. This Ordinance does not apply to: A. Outdoor spaces of food establishments. B. Locations where smoking is expressly authorized by state or federal law, rule, or regulation. C. Private clubs. This exclusion shail not a I when this or anization is Pp Y 9 open to the pubiic #o serve food and/or beverages. In addition, this exclusion shall not apply to the extent the organization is established to avoid compliance with this Ordinance. D. The use of tobacco as part of a recognized religious ritual or activity. E. Guest rooms of a hotel or moteL F. Food establishments located in a house of worship when the food service is Iimited to preparation, service or consumption by the members of the house of worship and not advertised to the public. 2.04 Jurisdiction. This Ordinance shall apply throughout all of Hennepin County as follows: A. A statutory or home rule charter city that maintains a delegation of authority agreement with the Minnesota Department of Health and/or the Minnesota Department of Agriculture to regulate food establishments pursuant to Minnesota Statues 145A.07 and/or 28A.075 may either: 1. Elect to enforce this Ordinance or a local ordinance; or 2. Provide verification to Hennepin County of its intention to have the Health Authority enforce this Ordinance by submitting a resolution of the City Council or authorized City official to Hennepin County. B. The Health Authority shall be responsible for enforcing this Ordinance for areas within its delegation of authority agreement with the Minnesota Department of Health and the Minnesota Department of Agriculture to regulate food establishments pursuant to Minnesota Statutes 145A.07 and 28A.075. The Health Authority shal( also be responsible for enforcing this Ordinance: 1. In food establishments in cities under the provisions in section 2.04, subpart A., 2., of this Ordinance; and 2. In food establishments not delegated by the Minnesota Department of Agriculture pursuant to Minnesota Statutes 28A.075 located within cities maintaining a delegation of authority agreement with the Minnesota Department of Health pursuant to Minnesota Statutes 145A.07. SECTION 3: DEFINITIONS. 3.01 Food establishment. °Food establishment" means those establishments defined in Minnesota Rules 4626.OQ2Q, subpart 35, including an establishment that has an on-sale non-intoxicating malt liquor license; an on-sale intoxicating liquor license; an on-sale wine license and/or strong beer liquor Iicense issued by the State of Minnesota, the municipality within which it is located, or Hennepin County. 3.02 Health Authority. "Health Authority" means the Hennepin County Human Services Department and its designated employees, agents, or contractors, as the Hennepin County Board may designate. 3.03 Other �erson in charqe. "Other person in charge" has the meaning specified in the Minnesota Clean Indoor Air Act Rules, Minnesota Rules, part 4620.D100, subpart 10, as amended from time to time. 3.04 Private club. "Private club" means a civic organization, service club, fraterna{ organization or congressionally chartered veterans' club, when admission to the organization is limited to members and members' guests. 3.05 Proprietor. "Proprietor" has the meaning specified by the Minnesota Clean Indoor Air Act Rules, Minnesota Rules, part 4620.0100, subpart 13, as amended from time to time. 3.06 Smokinq. "Smoking" means the inhaling, exhaling or combustion of any cigar, cigarette, pipe, tobacco product, weed, plant or any other similar article. "Smoking" includes possessing or carrying a lighted cigar, cigarette, pipe or any other lighted smoking equipment. SECTION 4: ADMINISTRATION. Except where otherwise specified, this Ordinance is subject to all provisions of the Hennepin County Administrative Ordinance, Ordinance No. 1, as may be amended from time to time. SECTION 5: RESPONSIBILITIES OF PROPRIETORS. 5.01 Proarietors or other aerson in charae shalL• A. Post "no smoking" signs that comply with the requirements for sign placement and size of letters consistent with the Minnesota Clean IndoorAir Act Rules, Minnesota Rules, part 4620.0500, as may be amended from time to time; and B. Ask any person who smokes in an area where smoking is prohibited to refrain from smoking and, if the person does not refrain from smoking after being asked to do so, ask the person to leave the food establishment. SECTION 6: ENFORCEMENT. 6.01 Inspections. Compliance with the requirements of this Ordinance will be verified: A. As part of a routine food establishment inspection conducted by the Health Authority pursuant to Hennepin County Ordinance No. 3, Food Protection Ordinance; B. As part of routine food estabfishment inspection conducted by a statutory or home rule charter city that maintains a delegation of I authority agreement with the Minnesota Department of Health and/or the Minnesota Department of Agriculture to regulate food estabJishments pursuant to Minnesota Statues 145A.07 and/or 28A.075; or C. As part of a complaint investigation. 6.02 Access to aremises and records. The proprietor or other person in charge shall, upon the request of the Health Authority and after proper identifieation, permit access to all parts of the establishment as often as necessary, and at any reasonable time for the purpose of inspection and shall exhibit and allow copying of any and all records necessary to ascertain compliance with this Ordinance. 6.03 Interference with the Health Authoritv. No person shall in any way interfere with or hinder the Health Authocity in the perFormance of duties, or refuse the Health Authority to make such inspections. SECTION 7: PENALTY. 7.01 Misdemeanor. Any person who violates this Ordinance, or who permits a violation to exist on the premises under his/her control, or fails to take action to abate the existence of the violation(s) within a specified time period, when ordered or notified to do sa by the Health Authority, shall be guilty of a misdemeanor, and upon conviction thereaf shall be punished as provided by law. Each day of violation constitutes a separate offense. 7.02 Adverse license action. Violation of any provision of this Ordinance by a proprietor or other person in charge shall be adequate grounds for the denial, refusal to renew, revocation or suspension of a Iicense to operate a food establishment as determined by the Health Authority. 7.03 Civil remedies. In the event of a violation or a threat of violation of this Ordinance, the City Attorney or County Attorney may take appropriate actian to enforce this Ordinance, including application for injunctive relief, action to compel performance, or other appropriate action in court, if necessary, to prevent, restrain, correct, or abate such violations or threatened violations. The City Attorney or County Attorney enforcing provisions of this Ordinance may seek costs and dispersements, including attorneys' fees. 7.04 Citations. Whenever the Health Authority discovers a violation of this Ordinance, a citation may be issued to the person alleged to have committed the violation. The citation shall be issued to the person charged with the violation, or in case of a corporation or municipality, to any officer or agent expressly or impliedly authorized to accept such issuance. SECTION 8: FEES. Fees for Health Authority complaint investigation, verification, and enforcement of violations of this Ordinance in food establishments shall be those established by resolution, as amended from time to time, of the Hennepin County Board of Commissioners. SECTION 9: SEPARABILITY. If any provision or application of this Ordinance is held invalid, that invalidity shall not affect other provisions or applications of this Ordinance. SECTION 10: CAPTIONS. The captions printed in boldfaced type before sections of this Ordinance are mere catch words to indicate the content of the section. SECTION 11: EFFECTIVE DATE. After passage by the Hennepin County Board of Commissioners, this Ordinance shall take effect on March 31, 2005. Passed by the Board of County Commissioners of Hennepin County, Minnesota, this day of County of Hennepin State of Minnesota By: Chair, Board of County Commissioners Attest: Clerk of the County Board Dear Restaurant Owner or Liquor Licensee: The City Council has been approached regarding the adoption of an ordinance prohibiting smoking in restaurants and bars in Brooklyn Center. As you are aware, there is currently a great deal of discussion about prohibiting smoking, especially in restaurants and bazs. Several cities have adopted ordinances banning smoking in restaurants, bars, and other places. The City Council will be considering this issue in January of 2005. Before taking any action, the City Council wanted to solicit input from residents and the hospitality industry in Brooklyn Center. A survey will be sent in the City Watch Newsletter in December asking residents for their input. By this letter, the City Council is soliciting your comments and opinions regarding the advisability of adopting a smoking ban in restaurants and bars in Brooklyn Center. The City Council would appreciate receiving your comments in whatever format you would chose. If you would like to e-mail your comments, please e-mail your comments to citvclerknu,ci-brooklvn-center.mn.us; if you would like to send written comments, please mail them to Deputy City Clerk, City of Brooklyn Center, 6341 Shingle Creek Parkway, Brooklyn Center, MN 55430; or feel free to contact all or any ofthe City Council members. Sincerely, Myrna Kragness Mayor DRAFT Several Cities have adopted ordinances prohibiting smoking in restaurants and bars. The City Council would like your input on whether the City of Brooklyn Center should consider adopting an ordinance prohibiting smoking in restaurants and bars. Please take a moment to let the City Council know your thoughts by completing the following survey. Should Brooklyn Center ban smoking in bars and restaurants? Yes Yes, only if other surrounding cities adopt a similar ban No Undecided Should the City of Brooklyn Center encourage Hennepin County to adopt a county-wide ban on smoking in bars and restaurants? Yes No Undecided Should the City of Brooklyn Center encourage the State of Minnesota to adopt a state-wide ban on smoking in bars and restaurants? Yes No Undecided Comments: Return by U.S. mail to: Return by E-Mail to: Deputy City Clerk citvelerkCa�ci.brooklvn-center.mn.us City of Brooklyn Center 6301 Shingle Creek Parkway Brooklyn Center, MN 5543Q r� Formeriy for Resources, Inc. u'estxenneptn •Community Services A Center for Recreation Education /�dvocacy Counseling �"�ealth May 13, 2005 Ms. Maria Rosenbaum City of Brooklyn Center 6301 Shingle Creek Parkway Brooklyn Center, MN 55430 Dear Maria, Enclosed please find a brief overview of our presentation regarding adaptive recreation for citizens with disabilities. I also enclose 5 copies ofour annual report and recreation brochure for council members to review. I have 3 citizens with disabilities, one parent, and myself who will speak at the council meeting. We will be requesting reinstatement into the park recreation budget for 2005. Thank you for helping, Maria. Sincerely, Mary Perkins Executive Directar Enelosures 1001 Highway 7 Room 217 Hopkins, MN 55305 952.988,4177 Fax: 952.988.4020 ,�c r� Formerly West Hennepin f o r R e s o u r c e s, n C. Communi Sen�ices A Center for Recreation Education Advocacy Counseling Health BROOKLYN CENTER ADAPTIVE RECREATION FAST FACTS The City of Brooklyn Center has offered park and recreation services to its children and adults with disabilities for nearly 25 years Residents of Brooklyn Center with disabilities have participated in both adaptive (disability only) and inclusive (mainstreamed) recreation services through the eity's involvement in the Northwest Adaptive Recreation Consortium which includes 8 northwest municipalities The city is charged a base rate of $3,000 plus an additional amount based on the number of participants from the previous year In 20Q3, 153 participants were counted and the cost was $6,694.00 FOR THE YEAR This small amount purchases Substantial services including: athletic leagues and social clubs special events holiday parties training for city staff in how to include people with disabilities into all park programs individual skill assessment consultation with parents, professionals or other city groups about disabiliry related issues Participation in the consortium keeps Brooklyn Center in compliance with many ADA requirements. The program is guided by certified therapeutic recreation specialists and supported by psychologists, social workers with disabiliry expertise Brooklyn Center was the onlv suburban community to completely eliminate the service due to budget cuts Residents with disabilities are being excluded from participation and are being hurt by the decision Citizens with disabilities NEED this service as it is the orsly means they have to maintain relationships, physical fitness and social integration 1001 Highway 7 Room 217 Hopkins, MN 55305 952.988.4177 Fax; 452.988.4020 i n i I Y �j�•�� �fi l� x ��,'�J i E t' '�:i 1 `5 t R Ed���,t�a�, t eu•eitioii z �'ldvacacy C�unseling Health j .r,' i q rE �N� r r� 1 P .$CH Y� 1 j 1 ����kJ.?r. F: '�waY' ,R S r r i i f �IJ A'j 7�.�' M1 r 1 y n T �'e. r t F I 'i S� �Y� Y i. 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I� �r F�� g a`�� x j W 4�r I A, V` f,�V. r g I 6 f� i Y' t c i a -.4 .��,.s�x"�^ a.�.a. v"i .�:i`��.,'�m �`y� .r `�f�t.. E�� i A x ;4 at i f Y:, f�`iS i OUR PROGRAMS �'�M INCLUSION .;''�r `�y ,�t�. a ,r, ��.'�.i i( d� 3 S h �t 'hrougi�oui the year, a variei of r �d����,��,� z n,,,f Y REA r r,��„ CH for Resources can help you find ���„����������n,��,� �rograms a�e offered to children, yfi ��u, j������>� 3.� programs and locate services n�cessary '°���'r �r5.^ �7 r�����'r.�; teens, ancl aduits including: r� for successful community p S s-ti {r`'r��`�' c�rficipation. w S��c ial ck �(�s Special evei�ts Basketball ���i, a� �1,: Our inclusion consultation service can help i� �r rP N 1( V ^I �k T I e .w l�i ty r Dc.rr�cc�s 5oft��c7N (io�vlinq I<arate you participate in a variety of community t �.-y�'� 4,< 5 s� i.. F e ,e :�N n� �w T n s �J r-o< <7 �o► r� ting of recreational I�roc�rams and access the many resources ��`�r,�'�"� -�4� y.� t�����:3���� =r available throughout the metro area. r offerings and/or to be added to our y �,a t �t `f`�r�r; riewsietler mc�iling list, cc�ll us at �f needed, inclusion aides can attend t n q r..' A. x s ��i�ai fi -i'. •n s r m n 952-98�-4177. programs with residents of: i r 5 4 �y 5u }i°.i drc '4.:: 3 _�a,.� a ��y��� r i r rl �j�k+�� ,�"�7Y Brooklyn Center a s a�,������r' "TAItE FIVE" RESPITE l r 3� p a R t t3�'�� Our "lake Five'" f?espite is desi ned for B�oGkiyn Park r w f,�`� ,x ��n. ,'t i r� n �p° FS A� T� T ql �1 t"�'�' '4 �t" f 'k�,�, youtfi, 1422 years of age and is provided Chanhassen rD� f� w �4����";�,rvs�,�ti;��;��'�: M �3 1� A 7 �I �Y X�Y durin the da �`�4l',°�wr x' y cn school release days, Chaska �r s M �a,�"����f��s holiclays c�nd s�_immer breaks. Respite is �ut,i� i Y 4 ��4 Crystal ,ry�� p ;�:`��`��?u�',; f �,fb° rnodeled aFter a teen center format. ,�a �As' v� .s� .�a..°� ,�,r,p ��,����„���,�fE` Our respifie center contains a lounge Golden Vailey i� i, f� �i x,, „s '�N y� S�` �`s� f a�] �Y x 4 y t, t .F��� S�'� �l.Y� ���5f ��TA'Y•�v�{YS��k d�fiZ.31tp; hA91 equip�ed with leisure equipment, Ho kins �`�Ky>t,W� x�y.� k ���,�N,� �'������r p �f'� j����; fiz���'u�'f $�E� s music, a creaiive arts c�rea, and game tY� Mapie Grove w �r t l ,��.�F� Y �y�..Yi iM� 0������4'�ik� i r i �i tables. Pariicipants are able to make ��'<�.�s� �i ,r���� r cl��ices anc� move freely to various Minnetonka w ar'' ,r •'u �zd� ��'s"� supervised activity areas, Field frips and New Hope �s 4'����R�.s��� rr��'�{� �'r �r��„tT�i'�'��1�1,_ a �f r i ��y� ,p c i o�porlunities for community integration Piymouth nv`;5 3 x� h J r �'r���'��.�+G�`�3� t� places lil<e museums, theaters and �'F �'�'r�`� ,H vt' SJ jJu r� ,�'C I .�,tGt�'� �i} �Y 1 f �4 ,c' �ObrJIIISC�CI{C� r y�� ���l�'�'��?Tfi��''��y-s.7�e���,'����st`; bow4ing affeys are also offered. 'Er.r� 'I�lt��idv��,t�'y4����y=�fi �����t,p a 1 A nuiritious lunch and transportation are St. Louis Park ��4� �'�'`�7� 'M a, J 7` 7�' 4 E^' Jr i.�� �,l`�'�s� 1 �C pt t e ln tli t 1.� l� A T i A �5�r� ��g�_ availabie daily to all who participate. f Yi '3S r a 4 'EL t�'�y� A 4 '�1 J'y�' ���i`N �iy� ��t S�F 4�T To get more information F'����;�;� t�° on upcoming respite �yJ Call us an tim F s t x s���,{���, �+?s'1, v �-�r �„ax d '"tir'1< 4 t 1 Y �,r 1 r ��n i� z. e F 4"a'` ,[�I i �5 t j k� y�)�Pt' a i dates and/or to enroll, '4 5 2.'� 8 g, 4 1 7 7 �—�r y F y������:� r tk i M 1 N r' 4 �v ��1�t�_-�_ y�� ca41 us at 952=988-4177. r� y y ��j,� r�j Y r �9 R 1 4 41X�js Y,11 4 3 1 F a °�.0 F f. i�' i r fi 4 K r,<� i u: Y��� r' 1�• r �;q i 1 n� ti a w.r �Fi �'s o ...:<-c 1 1., G'!}�... 4` v r,tiC' x .-jq;' -a .6�° �R a.�' i �s� F, ',�yt���.. 1.`����� N A r �i� t i �s 1 �i' t� y q t t I t, M I t'} sr, 'i' td �,�`f r 'd t 4 �f" 3 �n ii �3 �i �k. ,kF �i�y�„`�'�,s �W r y^ 'r fT .f T f z i i� r �,������i�`�,�d�� �r3 6 .�.t. l r Si F 1 ,a� ;"'l� A ti t t d� t '�t Y n f!'. t i a�, 3 R`� �'T- T�'������' i y' ;.t �7� i <1 '�i 4 Y�" ^".4 �g-, ':t "�i'�'� .�.°wG ar i_ t �ft py r�'�...' �3�'�'��� r @4. w :t s ;r' .,n� r r_. .t a>. �;j1 s'�� l`��iM a�'$ r r` i i i t xk t �t,� b ya 7. `z �y i e 0 F� r FZ ai..� y L r Y�� j k bf �iy:.?. c a "�r� i w' t� i '�.w:;: i �j f �i f �i�'���� �'fy+.� F F t k R �._S A.. i tF S r i ^J i1' 1 i 4 a ���i+- `k ,i6 y Y� p�� i F� a t� 1�± �t!s ,j�.p Qc ..�f F 1'�F �M y 'SP h '4. t r r =�L� a �i 1 i: :�.�v i I� �1 :N 1 yA 1 -�S'� iN i t i Y'�'2 ti i /t 1 iTs 'c+r' .r F' fy SFy c•.:j• +-�j,' 7 ��`i s, ..f l "i�IS�.ip4��1� .t}..' .i`sy�Y �.1 1. �1 �1� 4;; y t r. vI r k r s y�F �i'. 4 S f z ��j*i =��F.1� cL�' '��,,.rr u ��yr r L zt r' uf� s �j �11k�?�. '�i L 4 i.� f �e t� �.rJ�i\� w L� p �YW r fr��,� �f�.�- 7t �.x Jf L 4�f ��1F �t; �II t �'7 y ��,�.�x d Pe S�� t �+t...� j` �y�L.C�•�. p Y y y Y .Y i J ..1:9i I .�e.�• Lr .ti SiH.�� 4.Li'♦ M 3I 4 l7� 1a M t c y r ��J 1 6��... f�. �-t ��c� 4 i s ;y .v Y h I'+:�t .J I 't 14� sc l= 3�,4' tit� i. r a t t ��p i a y ra .rv R•' k: S..�,.,, i t° t"1'f S i r`: ��a� a j t y. a d s :Y c L�.' f e y��� yy. �k$9} e M�+ r i a i *ri�f,� t. �S j,� Z��; I�t7vs. �Y'.� tl 5 'w2�� 1 Os'Fr. ��.a.'. I.'.�� f sSr T •t t p 97.�f �+i ���/�rF.- �F' p 1 .�-.1• F�. R �r�i��'�. rf,i,4� k r ��y S i ��T'�'�kc}s�'� y t'�L�'� ��t�..� �!.1, �7 S T�-� t Y s ;t t r 4 ^t t h r..,: yyt -.3� n 4,� tx� �F ,i n +w•� rti a�. p+�e�y t� �r� j i�'�i` a �'4 .r> r'H i�"�� 'p it {�n'tC'' ���Y' j 'r ��nl �rvk l,2 P �4'�, n' �--.s..,...�..�. r �t�`�s,r x�r a�� s ic. .x- c �,a qS.'' m��=4 `Y �.,ti d .s F-�».y 4 'i.��-�'C--ti "�t x� •--�C' 1 �i 2� 6�,`y .�xtznding a hand to em ower eo le p Dear Friends of REz�CH, M4SSION STATEMENT Our mission is to provide supporf and training for individuals Reaching Success means and families with developmental disobilities. The ogency assists building on one's strengths individuals in developing and utilizing skills and attitudes that will maximize independence pnd integration into the larger and developing one's community, capabilities. All of us experience life's triumphs PROGRAM SERVICES and find success with the Counseling help of our families, outreacn Education and Skilis Training nnar Perk�n5 friends and communities. Empowerment and Su y pport Groups Executive Director None of us is truly Therapeutic Recreation Community Inclusion independent as we all rely Respite Services on others to help us along life �ourney. Information and Referral Transportation Here a[ REACH, we strive to offer that extra hand PROGRAM HIGHTLIGHTS OF THE YEAR help families and people affected by disabilities the ways [ha[ they �vish [o be helped. We help In July of 2002, our organization officially beeame Reach For Resources. REACH is an acronym that stands for Recreation people iden[ify [heir o�vn s[rengths and build on �ducation Advocacy �ounseling and Heaith. 0ur new name better describes our vision of empowe�ing people with their o�vn capabilities. Last year over 1,200 disabilities to REACH their ful! potentiaL people were served by REACH through a variety i- Our respite program, called "Take Five,"' won the Award ot of services. We counseled those who felt troubled Excellence from The Minnesota Recreation and Park Association taught life skills to those needing to learn, found for se#ting a standard of excellence in the fieid of �ecreation parks and leisure serviees.'" resources for those seeking new supports, and created places of friendship and recreation Our educotion department expanded its parent support program for parents with disabilities. In addition to our parenting throughout our entire community. c�asses, we now have a one-to-one outreach program specifieally designed to help moms and dads with disabilities become better parents. Thirty percent more adults care Our small staff touehed many lives but also relied receiving training services. on [he many friends of REACH �vho contributed Counseling services were expanded with the addition of another their time, money and their goods to help further full time therapist to provide both case manogement and clinical services. When family members are included, REACH our mission. Thank you [o all our community assisted over 1,200 people affected by disobilities in 2002. partners for eLtending your hands in friendshi to p One of our goals is to help people with disabilities integrate help us make this a communiry rich with into their communities by helping them use their neighborhood resources. In 2002, 87°� of the people who requested help with opportunity for people of all �abilities. integrotion were successful in using their neighborhood resources. l y Another REACH goal is to help people with disabilities prevent L� or resolve personal crises that eould create severe disruption in their lives, in 2002, 99% of people at risk for these crises prevented or successfully �esolved them with ihe help of Mary Perkins REACH's counseling, outreach and trainfng programs. _v`' a� F y.c`f r Ew;�.,�""�=�.�x.z. r _.�...�f�,�>.,,.... 2��2 Cor�r���a���r �Cor�tr��u�ors ���ema TaCO Be�� Cifies 97 KfCZ Target Brooklyn Park 'rtcC�j1�� D'Amico and Sons Timberwolves y� Davanni's Walker Art Center Edinburgh Dairy 9ueen Target Greatiqnd; ANNUAL APPEAL M EMBERS Ken Maggie Schneeberg Glamour Shots Maple 6rove AND SPECIAL APPEAL Nathan Schofie�d Goiden Rozor Stylists ISD 279 NIEMBERS Azza Shaolan Hennepin Pa�ks Marie B. Siivemagel KDwB 101.3 Ftv� MATCHING GIFTS Deen Ajibola/Amas Incorporated Jeff Maxine Skold Kelly's 19th Hole Margaret Argall Joan Surma KFC American Express Cindy Atkinson Lloyd Beverly Swanson McDonald's in Minnetonka ING Foundation Linda Butch Bialick Jeanne Swedberg Medina Entertainment Center The Bieber Family Foundation Richard Ann Von Sickle Minneapolis Pianetprium MEMORIALS Leonord Borgstrom Rocheile Tdscher Minnesota Twins John Hetterick/No Place Nancy Borgstrom John Diane Thompson Minnesota Vikings Allan Kathy Boucher Mike Urgo/Community Involvement Minnesota Zoo Like Home Sherwin linda Brodsky Pro rams Old Country Buffet N1ar}� Ellen Kaui John Andrea Casey And gsset Mary Perkins y Perkins Royce and Jan Sanner Greg Cheryl Choukqlas VFW Post 425 Hopkins Rainbow Foods Annis Diane Clark The Wheelock Family St. Paul Saints .lames Cornwell Waltraud Whitmore Science Museum of Minnesota RESPITE SCHOLARSHIPS The Marvin Fish Family Virginia Wolfgram Gary Stone Bechier Landscape. Inc. Christine Dvorak John Mary Ann Wolters Walter Cecilee Faster Walter Virgina Zobel P�ease accept our apology if your name is misspelled or missing Marvin Rosemory Fish from any of the lists in this report. Stephan Garmon SPQNSORS Michael Gwenn Garmon A speciaV Thank you for your support to the cities of: Tim Piper Garmon The Baratz Family Foundation Brooklyn Center, Brooklyn Park. Chanhassen, Chaska, Debby Grote The John Barbetta Famiiy Crystal, Golden Valley, Hopkins, Maple Grove, Minnetonka, Mary Gustafson Bechler Landscape, Inc. New Hope, Plymouth, Robbinsdale and St. Louis Park. Deb Hagen Kristin Bender 'lanlon/Boston Garden Benefit Partners, inc. Don Hanna The Bialick Family tster Harrington Brooklyn Pork Community Patricia Shain Haug Organization Morie Heiland Buerkle Acura of Brooklyn Park John Hetterick Cify of Brooklyn Park 2002 Financial Chris Hickman Annis Clark Dave Hoffman Colwell Industries f n f�o r m a ti o n Margaret Holste Commercial Furniture Services r Leroy Johnson Comprehensive Valuation Services Jan Kaul Dean Superior Vending Ca. REVENUES Mary Ellen Kaul Duke Realty investments Barbara Kleist Bert Gardner Program Fees S 756,767 Paul Sally Kraske Susan Gray Misc. Income S 104 Terrance Judith LaBissoniere Dave Hoffman Contributions 23,305 Sharon Lane Osseo �ions Club Interest Income 5andra Lindell Osmonics S 2,021 Gary Loeber Robbinsdale Jaycees Total Revenues: S 782,197 John Lundquist Jan 5anner Beverly Montgomery Kari Schamber EXPENSES Nickofas &Judith Neiss Skold Dental Laboratory, Inc. Jerry Sharon Nelson The 9th Grpde Government Classes Program Services S 669,625 Janet Nelson at Champtin High School Administrative/6eneral S 291 Julie Orr VFW Crystal Post 494 Totai Expenses 669,916 Bruce Merry Jo Parker VFW Minnetonka Post 398 Mary Perkins Waimort Brooklyn Park George Petros Bonnie Munger Welsh Companies Balonce Sheet as of December 31, 2002 Ratph Pettyjohn Sue Whitney Ann Popper Assets Derek PurneO DONORS Current Assets S 410,628 M. Audrey Rachner Fixed Assets S 51,620 Sandro Ramstod Applebee's Totai Assets Linda Rebone Arby's S 462,248 Kay Riley BiII's Superette John Alice Rivers BloCkbuster Liabilities and Net Assets Stuart Linda Ruehle Blondies Current Liabilities S 19,866 Loretta Solinger Burger King Net Assets S 422,382 Jan Royce Sanner Caribou Coffe� Totpl Liabilities and Net Assets S 462,248 Kari John Schamber Chili's �-�,r�;�s��� 2002 Board of Directors F Christala Culhane 'a Piper Gormon a i� 1 Susan Gray Gary Johnson Mary Ellen Koul Chris Klug George Pettos Jan Sanner 2003 REACH STAFF Kari Schamber Maxine Skold Mary Perkins Executive Director Jeanne Swedberg lisa Rivers Director of Counseling 5heri Petersen Director of Educatlon and Training Renae Luiner Director of Recreation y�� ond inciusion Services 7ara Porker Assistant Director-West F::`.lt:: LoAnne Woods Adminfstrative AssisTant �i,� Matthew Smith Outreoch Worker �f_ Eunice Welinitz i Outreach Worker Y+, Sara Hicks Mental Health Practitioner Jill Baumgortner Outreach Therapist .n i 2002 REACH VOLUNTEERS y Margaret Argoll Max Bialick ac�� Jammer Bundel Jacob Corlson ,_.s,� Nancy Danielson Taro pubbs Maureen Grazzini Jamie Haubenschild Erika tngwerson Chris Klug Brod Kunz Taro Lumley Debby Maschke Melissa Parker Andy 5oltvedt -•.��r i I c�r�r oF PLY�OUTH- August 4, 2004 Cities of Maple Grove Brooklyn Park Brooklyn Center New Hope Crystal Osseo Ronbinsdale Minneapolis Dear City Managers: In early July, we received a letter from the Shingle Creek Watershed Management Commissionrelating to approval of its operating budget and assessments to member communities. The letter included the following sta.tement: "The Commission requests that the member cities as soon as possible begin discussing a long-term strategy for funding capital improvement projects and speeial studies such as TMDLs and resource manageznent plans. The Commission requests that this strategy be developed and in place by Spring 2005 for the development of the 2006 budget and capital improvement program" The letter goes on to suggest specific items for discussion (copy enclosed). My question is quite simple Is your city interested in attending a meeting to discuss these issues? Each city could send one elected official and one appointed official to a meeting for an initial discussion. The commissioners of the Shingle Creek Watershed Management Commission could also be invited to attend. Plymouih would be glad to host a meeting, but would also be happy to travel to one of your communities if you are interested in hosring. Could you please give me a call at 763-509-5051 or by e-mail Lahrens(a�ci.vlvmouth.mn.us to let me lrnow your thoughts. If we deternune that everyone is willing to meet, we can then determine where and when. Sincerely, �:��i Laurie Ahrens City Manager Enclosure PLYMOUTH �I.ddin� Quality to Life 3400 PLYMOUTH BOULEVARD PLYMOUTH, MINNESOTA 55447-1482 TELEPHONE (763) 509-5000 �PRINTE�ONFECVCLEDPAGER �N/WW.L`�. r� I I 07/29/04 07:35 FAX 76�55a9�26 JASS �tuut GEMEHT COMMtSStOH M��� MN 55�47 �H�� Pl mou 3235 �ernbrook Lane F T63 553-9326 Telephone (763)553-1144 A� �6�� va� -7 f2�1 �"i� t O P o s t-it' Fax Note Q�Y From To �,r ��1� Co CoJDepl- June 30, 2004 55 2O iPtwne t► Phone �1 F�� SD9-- 551a �Fex# Mayors City Managers Shingle Creek Watenhed Management Commission Hennepin County, M innesota Dear .yliayors aud M�agers: At its 3une 10, 2004 meeting, tlie Shing1eCreek Wat,ershedManagen �m�� balance of rev nue from sources, of$426,190. Assessmentstomembercomsnunitiestotal$268,190, application fees, and interest income. e ro osed Joint Powers Ageement amendment establishing �.n "Assessment �°e C'le'�isso P P without the consent of a majority of cities has not yet been execu�ted by a11 the m prepared this budget as if that amendment was in place 004 the best a ta available when the C o�mmss'onas 2.3 percent, the change in t�e CPT from Rpril 20031A Ap bud�et committee met in May. The tatal member assessment or 2005 is 2.1 percent greater thar► the 2Q�4 smen� asscs The 2005 budget continues tlie existing operating proBTams �"ltb 5°me mmor modifications. Other expenditures were considered for 2005 that would have required an assessment aboveti i re� nt oads proposals were for Total Ma7:imum Daily Load (1MDL) implementation ac inthewatershed'Slakes. Afifthwouldbeginstreambenkf �°$�a any of these acti ties 2 O5, but tliey in Brooklyn Park. The Commission chose not to go remain priarity activities for consideration ia 2406, a]ons with additional potential activities (see attachment). It should be noted that the TMDL studies completed tA date in Shing�e C�a� �e as es ment to mber which, in part, is why the operating budget [$426,190] �s h g [$20�,1�0]. Th� chal�e�ae for the Commission is, we �hel"im sion go�ing to oe �ske� te P�'�;�����cially in more competitive in tiie future. We also beheve the C m more stream bank restoration projects similar to t�e one eS o�� 4R Co� ssion and itis member Co�mission is going to participate in TMDL end s�ea�'° b cities wi11 have to develop additional revenue sources �e�eTh W i�an that s urr additional unpiementation projects and programs will beoinnin� tbe p}an Amendment review process identifled additional studies and plaas ihat should also be considered. The Commission requests that the member cities as 9Oa�ai 5 b�a.�� T1�ID� and esonrce m nagemen for funding capltal improvement projects and specaal s plans. The Commission requests that this strategY be devcloped and in place by Spri�a 2005 for the development of the 2006 budget and capital improvement prograu► BROOK�YN CENTER BROOKLI'N PA1� CRYS7AL A�1-E GROVE MINNEAPOLIS N�V1► H�P� OSSEO PLl'N►�UTH ROBBINSDAL City of Brooklyn Center A Millennium Community MEMORANDUM TO: Mayor Kragness, Councilmembers Carmody, Lasman, Niesen, and Peppe FROM: Michael J. McCauley DATE: August l8, 2004 SUBJECT: Use of Constitution Hall for Fundraising Use of Constitution Hall has generally been reserved for non-profit organizations and resident use. Limited use of the facility is allowed, for higher fees, by local businesses for training or meetings. The non-profit and resident uses have been for a variety of activities and types of uses. Those uses have not previously included direct fundraising events where items would be sold or auctioned. Brooklyn Peacemakers has requested the use of Constitution Hall for a potential event that would have a number of activities and facets. Most of the proposed activities such as a bicycle safety rodeo, chili taste testing, and displays regarding the impacts of drunk driving would be similar to or consistent with past uses of Constitution Hall. Peacemakers has also broached the idea of conducting a silent auction as part of a fundraising event during this time. Mr. Glasoe is in the proeess of reviewing policies that may be in place at other cities for use of facilities like Constitution Hall to develop a more formalized policy and structure for use of Constitution Hall. This matter is on the Work Session agenda at this time for Council discussion and input regarding the use of Constitution Hall by non-profit organizations for sales or auctions as fundraisers. The issue is potentially more complex then it would first appear. For example, we have been approached by for-profit businesses about using Constitution Hall to conduct sales events. Under our current policy of restricting use to non-profit organizations and community resident use, those requests have been denied. However, if a private business paired with a non-profit organization, it could potentially be a non-profit organization requesting to conduct a sale that would in reality be run by a for-profit business that would otherwise be ineligible to use Constitution Ha1L 'There might be some iype of an arrangement whereby a percentage of the proceeds of the sale would go to the non-profit organization, but the bulk of the proceeds and tl�e real beneficiary inthat situation could be the private business. On the issue of using Constitution Hall for fundraising activities, there are a number of options including: 6301 Shingle Creek Parkway Recreation and Community Center 1'hone 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 A) Fundraisers are permitted where: a. The event is a food event for which the non-profit organization is the sponsor and recipient of all net proceeds b. The event involves the sale of donated items and the non-profit organization is the sponsor and recipient of all net proceeds c. Tickets are sold for entertainment performed by a public or non-profit organization d. Tickets are sold for entertainment by a private person or organization and the non-profit organization is the sponsor of the event and the recipient of all net proceeds B) Fundraisers are not perrnitted: a. A third party conducts a sale or show involving merchandise or services C) Persons using Constitution Hall are not perrnitted to: a. Charge an admission fee for an event except as specifically authorized (i.e. Dinner cost) b. Offer items for sale c. Offer items for sale to the general public, but may have a silent auction open only to ticketed participants in an event Staff is requesting City Council direction as we prepare formal policies. The policy issues revolve around the distinction between non-profit and for-profit uses, as well as the availability of commercial venues such as the hotel, Up Front events, and the Earle Brown Heritage Center. City of Brooklyn Center A Millennium Corrtmunity MEMORANDUM TO: Mayor Kragness, Counci mbers C Lasman, Niesen, and Peppe FROM: Michael J. McCauley DATE: August 18, 2004 SUBJECT: Draft Report on Council Leadership Workshop Attached piease find a copy of Mr. Neu's draft report. I have stricken language on page 4 in Section 2. c. While the City is facing substantial fiscal pressures that have significant impacts on our ability to plan for the future, I do not see us in a potential fiscal crisis. This may simply be a matter of semantics. Given how monetary affairs are managed in the City, we are not in danger of over extending ourselves and being unable to meet obligations. We may be unable to sustain certain operations and we may suffer a weakening, but we are not in any danger of default. On page 5 in Section B. 1. b. and also on page 8 in Section (4) I have stricken the word mil as it would relate to levy increases. The City levies a flat dollar amount for taxes. We do not do a mil levy. A mil format is an alternate format that was used before the current tax capacity system in Minnesota. That format has the City Council set a tax rate. As you are aware, the City Council adopts a flat dollar amount and the tax rate is then generated by using the flat dollar amount over the accumulated t� capacity in the City. The City Council has no control over the mathematics of that computation. The rate is set from the dollar amount of the levy adoption as opposed to setting a rate that generates a dollar amount. As is the Council's usual protocol, tlie Council reviews the report and the draft goals contained in the report for discussion and potential revision or correction prior to placing the City Council goals and report on a regular City Council agenda. 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 (�63) 569-3434 FAX (763) 569-3494 www.cityofbrooklyncenter.org I coM�nNY CITY OF BROOKLYN CENTER, MINNESOTA CITY COUNCIL LEADERSHIP WORKSHOP Conducted on August 7, 2004 SUMMARY OF KEY OBSERVATIONS AND CONCLUSIONS MADE BY THE PARTICIPANTS Submitted by Carl H. Neu, Jr. August 9, 2004 ONeu and Company and the Center for the Future of Local GovernanceT"', 2004 CITY OF BROOKLYN CENTER, MINNESOTA CITY COUNCIL LEADERSHIP WORKSHOP Conducted on August 7, 2004 SUMIWIARY OF KEY OBSERVATIONS AND CONCLUSIONS MADE BY THE PARTICIPANTS Submitted by Carl H. Neu, Jr. August 9, 2004 L INTRODUCTION On August 7, 2004, the Mayor, three City Council mernbers, City 1Vlanager and Assistant City Manager of Brooklyn Center conducted a City Council Leadership Workshop. A copy of the objectives and agenda for this workshop is included in this report as Appendix A. II. SUMMARY OF KEY OBSERVATIONS AND CONCLUSIONS MADE BY T�IE PARTICIPANTS. A. Review of Major Accomplishments and Major Frustrations Experienced by the City and City Council during the last 12 Months. The City of Brooklyn Center, like most cities in the state of Minnesota and throughout the country, has been experiencing many challenges, fiscal pressures and changing political conditions that affect dramatically the nature of the issues confronting it and its ability to deal with these issues. The purpose of the assessment of major accomplishments and major frustrations experienced during the last 12 months is to establish a comprehensive and balanced perspective about all of the things that the City and the Council have managed to achieve in spite of these challenges and pressures. 2 1. Major Accomplishments and Major Frustrations Experienced during the last 12 Months. Maior Accomplishments Major Frustrations Street, curb, and gutter Revitalization efforts (still program (revitalization) have a lot to do) Code Enforcement Money (availability of funds, especially with declining LGA) Crime mapping (prevention Code enforcement (ability and anticipation) to sustain on a continuous basis) 69 Street Development Opportunity Site (need for well-thought out plan) Handling LGA cuts Liquor store and Earle Brown profitability Traffic enforcement Crime issues (publicized armed robbery instances) Twin Lake LGA and its impact on the City's budget Park improvements (quality Joslyn land area (unresolved of life) issues): roads water level final work to be completed Highway 100 development Assessing citizens' evaluation of council performance 694 Highway construction What is "the overarching plan" for Opportunity Site? Joslyn development Traffic issues Radisson Hotel 3 ARM Association (rental management) National Night Out Transit hub under construction Viewpoint New library New Earle Brown School 2. GeneraY Conclusions about Major Accomplishments and Majar Frustrations Experienced during the last 12 Months. Upon reviewing the Summary of Mayor Accomplishments and Frustrations, the Council reached the following general conclusions: a. The City and the Council have accomplished a great deal given the challenges and declining financial situation the City has been experiencing. b. The City's ability to deal with many of the issues it is facing requires a high level of interdependence or collaboration with other agencies. c. The City is facing real fiscal pressures a�-�e�-be-e� The �ity needs to work iIIV closely with other agencies to affect this issue, not only for Brooklyn Center but for many municipalities throughout the State. d. A big picture perspective is needed by the City to achieve the accomplishments it desires because of the interdependence the City has with the State and other agencies affecting its ability to accomplish its aspirations. e. There is a definite need to focus on a few "most critical issues" the City needs to address to position itself for the future strategically and to reverse the decline in municipal revenues stemming primarily fram the decrease in LGA funds. 4 B. City Council Goals for the Year 2005. 1. Critical realities affecting the City s options for the year 2005. As an introduction to the goal-setting process, the participants spent time identifying the following critical realities that are going to affect dramatically the City's options and abilities as it addresses major factors affecting the nafure and quality of the future of the community and its ability to sustain service delivery consistent with citizen desires and expectations. The following critical realities were identified: a. The "Opportunity Site" existing within the center of the city represents a vital and strategic opportunity for redefining and enhancing the future image, prosperity, economic vitality, and residential/commercial/business components of the city. The development of this Opportunity Site is of extreme importance and must be addressed with extraordinary council and city staff efforts to ensure the creation of a new and vibrant Brooklyn Center "Downtown" blueprint and eventual reality. b. The City budget situation is becoming increasingly more serious due to continuous declines/shortfalls in LGA funding which already total $3.4 million for the 2004 budget. Additionally, the City could lose the rest of its LGA funding from the State. The only apparent manner in which significant revenue increases can be derived to support the general fund during the next three to five years is through a tax��v3=, increase. The economic development occurring in the City probably will not produce appreciable revenue increases unti12010 and beyond. c. The combination of having to seize the potentials the Opportunity Site affords the City and to address the funding situation necessitates that the City focus most of its energies, both council and staff, on these two critical issues. This means that the City's ability to enhance or expand current service levels and quality, or to take on additional programs will be severely limited; possibly non-existent for the immediate future. The current general fund budget, if increased through regular taa� increases over the next several years, may be capable of sustaining current service levels and quality. 5 d. The Council and Staff, during the year 2005, will have to do the following: Focus their primary energies on dealing with the opportunities arising from the Opportunity Site and addressing the impact of funding realities that the City will experience for the next several years. Communicate strongly to the community the absolute importance of these two issues. Manage citizen expectations about what other things the City will be capable of doing above and beyond sustaining current service levels and quality. In short, the City can not take on new projects or commitments other than the two high-priority items mentioned above and sustaining to the fullest extent possible, current service levels and quality. 2. Goals for 2005 a. Goal No. 1: Create a new Brooklyn Center "Downtown" blueprint. (Opportunity Site Brooklyn Center's Central Business District) (1) Issue: Defining and building the future "Downtown" of Brooklyn Center. (2) Long-term outcome: creation of an exciting and suceessful "mixed-use" Downtown for Brooklyn Center. (3) Benefits: a new image and exciting experience for our community's benefit and future expanded commercial tax base attraeting new businesses and supporting current businesses new excitement about Brooklyn Center and its Downtown area utilization of a prime location "greening" of Brooklyn Center 6 creating a whole new image for the City attracting new residents to the community. (4) Focus 2005: Establish a well-defined process for receiving public input and participation and defining the key components and parameters desired for the area. (Meetings, Charettes, etc.) Define key components and parameters desired for the future development of the area. Solicitation of proposals from development communities. Revise of the City's Comprehensive Plan and related Zoning Ordinances. Amend the current funding (T.I.F. Tax District 3) mechanism. Issue bonds. Acquire property. b. Goal No. 2. Continue funding of community services. (1) Issue: City's ability to sustain its current service levels and quality given current fianding situations and declines in LGA funds from the State. (2) Long-Term Outcome: The long-term outcome will be determined by which choices the City makes pertaining to funding of City services. The following four approaches need to be taken: Defining options which might include levy increases, reducing costs, a mix of both. Prioritizing city services so that available funding can be directed ta high-priority services. 7 Selecting the option or options the city wishes to pursue relative to revenue generation and funding of city services. Implementing that option and adjusting city service levels accordingly. (3) Benefits: Establishing realistic expectations among the citizens about what services the city ean provide given current funding realities and options. Prioritizing services so that if service cuts are required as a result of funding decreases, available funding will go to the higher-priority services. Seek means of increasing revenues. (4) Focus2004: Council meeting with City Finance Commission to establish levy for 2005. Council adopting mil levy increase for 2005. (5) Focus 2005: Definition of projected equipment needs and unfunded future costs anticipated in each of the City's departments. Support legislative change in LGA formula (work with AMM and legislative representatives). Develop council consensus on service funding priorities. Communicate with the community that the council is working strongly on building a stronger future for the City through concentrating its efforts on the Opportunity Site 8 and the benefits that can ensure from it for the entire community. c. Goal No. 3: Sustain Code Enforcement, Crime Prevention, and Traffic Enforcement Efforts. d. Goal No. 4: Continue the Street Reconstruction Program. Important Note: Goals 1 and 2 become the "super ordinate goals" that will be absorbing most of the council's leadership and the rnunicipal staff's management capacity during 2005. Goals 3 and 4 are reflective of the council's commitment to sustain the efforts these goals addressed because of their extreme importance to the community. C. City Council City Manager Working Relationships The responses received from the council members to the Pre-Workshop Questionnaire, a copy of which is attached to this report as Appendix B, identified a number of issues pertaining to the City Council-City Manager relationship. The issues identified included: How does the City Council and its members know what is going on within the City, and what are the concerns that may exist among the City's employees? What is the best way to evaluate the City Manager's performance? What are the appropriate communications channels and means that should exist within the City? How do Council members handle information they receive from the public about perceived problems within City operations and practices? Because 2 City Council members were absent, it was not possible to discuss these issues fully and develop a consensus on what actions the council may wish to take, if any, relative to these issues. It is recommended that this discussion be continued at the scheduled February 5, 2005 City Council Leadership Workshop. I 9 r D. Elections 2004 Prior to the elections of 2002, the Council and City Manager established a protocol defining to how information would be provided to candidates during the election process. It is recommended that this protocol be published for the benefit of the Council and all candidates so there is a clear understanding of how information can be obtained, to whom it will be distributed, etc., throughout the entire election process. E. Dates for 2005 The suggested date for the next City Council Workshop is February 5, 2005. Suggested topics for this workshop include the following: Orientation of all Council members on: How this City Council conducts its business in terms of ineeting procedures and protocols. The City Council-City Manager Partnerships with emphasis on roles and relationships within thc partnerships, and how Council members, Manager and Staff inembers should cornmunicate with each other. Establishing a new Vision for the City Council and the City. Establishing a Mission Statement. Creating an Operating Philosophy Statement defming the values and principles that will govern the CounciI's conduct and service provided to the community. Reviewing and updating the Goals for 2005 to reflect current information on City finances and input from newly-elected Council members. Discussion of establishing the City Manager Evaluation Process desired by the CounciL Team building within the Council. 10 I III. RECOMMENDATIONS FROM THE FACILITATOR A. Goals for 2005. It is recommended that the Council and City Manager do the following: 1. Review the four proposed Goals to ensure that the wording reflects Council's desires and what it wishes to communicate to the community. 2. Establish the means to emphasize that Goals 1 and 2 are the primary focal points of the Council and City Management for the year 2005 because of their extraordinary importance, both to the future of the community and its ability to sustain currently its capacity to deliver services. 3. The City Council and Staff move aggressively towards implementing the action steps for Goal No. 1 with particular emphasis on expanded communications throughout the community and garnering citizen input and participation in the process far establishing the key concepts and parameters desired for the Opportunity Site. 4. Communicate aggressively with the citizens the reaiity of the City's financial situation and the implications that emerge for the next three to five yeazs in terms of taacation, service levels and quality, and the expectations the citizens have about what the City can delivery to and do for them. B. Council Meetings and Council-Manager Relationships. The following recommendation is offered: The issues, identified II. C. above, should be considered for possible discussion by the full council at its scheduled February 5, 2005 Leadership Workshop. This would afford an opportunity for the full council to identify what actions it may wish to take relative to any of these issues. 11 COMp�NY City of Brooklyn Center, Minnesota City Council Leadership Workshop August 7, 2004 8:30 a.m. 5:00 p.m. 1. Objectives Upon completion of this workshop, the participants will have: a. reviewed the major accomplishments of the City Council during the last twelve months b. identified the major challenges and issues the Council, Manager, and City will have to confront with a strategic and assertive leadership stance during 2005 and beyond c. defined from a"big picture strategic perspective" the results/outcomes City Council desire to achieve relative to the major challenges and issues it must confront d. established City Council's proposed goals for 2005 e. defined, within the context of the City Council-City Manager/Staff Partnership, the following: 13 the expectations the Mayor, Council members and City Manager have about the respective roles of, and contributions needed from, each other in achieving the results and goals desired by City Council strategies for strengthening the performance of, and working relationships between, City Council and the City Manager. City Manager evaluation process. f. identified strategies and processes for: increasing the ability of City Council to focus on leadership issues increasing the effectiveness and productivity of city council meetings enhancing the contribution of council members toward achieving effective council meetings, performance and constituency representation enhancing and applying the "success factors" ofteam work within counciL g. addressed issues council members have identified in the pre-workshop questionnaire as "topics for discussion". h. addressed "Elections 2004" "How are things shaping up?" ground rules City will follow pertaining to candidates issues that need to be debated during the election campaign council member expectations about their role influence behavior in the forthcoming elections. 2. Agenda a. Pre-workshop Questionnaire b. August 7, 2004 8:3Q a.m. Welcome, Introductions, and Review of Workshop Objectives 8:45 a.m. Last 12 months: Review of Accomplishments 14 9:00 a.rn. Looking Ahead: Major Challenges and Issues Confronting Brooklyn Center 2005 and Beyond 9:30 a.m. Pre-Workshop Questionnaire Feedback 10:15 a.m: Key "big picture strategic" outcomes/results Council desires relative to the challenges-issues confronting the City. 11:00 a.m. Goals 2005 12:00 Noon Working Lunch The City Council-City Manager Partnership for Croal Achievement 1:00 p.m. City Council Leadership and Team Building: Strategies for Achieving and Sustaining High Performance as a Governing Body. 4:00 p.m. Elections 2004 4:45 p.m. Date far 2005 Workshops 5:00 p.m. Conclusion 15 City of Brooklyn Center, Minnesota Summary of Pre-Workshop Questionnaire Responses 4 Respondents L Personal Information on Participants 2. What, in your opinion, are the really major challenges/issues confronting the City of Brooklyn Center: 2005 and beyond? No vision for the future in terms of redevelopment Future of Brookdale and its effect on surrounding area and tax base Lack of funding from State Decrease of LGA Decreasing percentage of owner-occupied housing Population needs and desires with aging and more diverse population Lack of control and equity in discussions in terms who talks and for how long. Communication barriers between Council and city staff Council and citizenry, Council and other Council members Large of immigrants moving in housing, code, gang issues assoeiated with this Role of City Manager amount of control and authority Overarching plan for development which pulls together the myriad individual plans that have been commissioned and reported on over the years (Broolclyn Bivd., Opportunity Site, Twin Lake Management, Walk and Wheel Trails...} Fear of new council member may be uninterested, uninformed or unwilling to be productive councilmember Redevelopment Plan 17 Increasing residential property taxes from rising home values, decreasing C/I property values and tax rates, TIF recovery periods, inflation, loss of businesses, school funding issues, and cost of government at local and State level. Negative image Money, Money, Money. Gan issues Asian g Single family homes being purchased and rented out fair market rate and Section 8 3. City Council Performance: a. Compared to a year ago, in your opinion, has the City Council become (check one): More functional/productive _1 Less functional/productive _3 Stayed about the same Directly relates to above concerns of lack of control and equity. We still do not function well as a team. as a governing and policy setting body? b. What has contributed to or affected City Council's overall performance as a governing-policy setting body? Things/Factors that have Things/Factors that have Increased or Promoted Council's Reduced or Inhibited Council's Functionalitv and Productivitv Functionalitv and Prodnctivitv We primarily agree on most major Not following our approved issues and it makes meetings go discussion rules smoothly typically! Getting to now each other better Grandstanding li Retreats Unfairness in amount of time dedicated to discussion items. One council member sametimes dominates the discussion and does not cede the floor Pre-meeting study session has Rehashing old issues or diseussing helped somewhat things with tons of questions without vocalizing specific concerns Improved structure of ineeting Monopolizing the floor protocol Change of local editor at SunPost Lack of funds to do a11 we'd Iike to (to Sarah) do No action items for Council members between meetings other than the regular liaison role Lame duck attitudes and levels of (non) participation Goals may need to be pared down and refined Attitude that the City Manager is always right (99%) Frustration Having Mayor AND CounciT member both belong to same organization: AMM 2 yeaxs in a row) Attitudes of superiarity and competitiveness Symbolism over substance actions (City Mgr. Asst City Mgr. New Finance Director raises vs. a hard stance on Council compensation. 19 No effective Parliamentarian; impatience, rudeness and lack of civility or RR of Order Communication obstacles: email restriction, city staff communication restriction, excessive "off-camera" stuff People's double standards Unknown reason o€ argument regarding comment from Mayor: "You're only 1 of 5— the others may not agree with you" People being in a hurry to leave Study Session Council Meeting EDA Work Session may affect Attitude that it's ore important to "SECOND!" a motion than to think about the proposal, seconds mostly automatic. Commission appointment issues Agenda item surprises/consent Agenda Council unaware how city staff perceives their Manager Term "micro manage" as opposed to "the buck stops here" Same people appointed to same liaison roles little cross traininglexperience 20 4. At the August 23, 2003 workshop, we addressed the issue of Effective Council Meetings. a. What "gains" have been made in improving council meeting effectiveness? Not many We tried to follow the new rules and that didn't last long. One step forward 2 steps back Mayor doesn't rush things through and direct everything to go how she might like is more fair. We have a chance now though people are tapping pens, leaving, talking to bring up subjects of desired discussion at each meeting. b. In your opinion, what still needs to be addressed or done to increase council meeting effectiveness? Mayor: control discussion Full and fair debate using RR of Order if people don't like that they shouldn't be in government which is based on rules of fair debate and civility. Council Members: realize that while we have different views, we all deserve the opportunity to share those. A better understanding of Roberts Rules of Order. Keeping to subject, not going off track on questions. Attitude that Council needs some feedback and interaction with staff in order to make fully informed decisions. Council members need to study information on agenda, formulate questions so they pertain to the issue at hand and come to the meeting prepared to operate with some level of efficiency. c. Other observations about City Council meetings (regular meetings, work sessions, and study sessions). We always seem to be in a hurry to get out. If I have a question that takes 2-5 minutes, is it that much of a hardship? 21 Would prefer no pre-meeting study session. One council member tends to monopolize the conversation during on camera meetings. 5. In your opinion, what are the most important topics we should address during the workshop? We may need to pare down and prioritize goal list, to better fit budgetary constraints. TOpiC Outcome/Result Desired Long-term redevelopment Have a majority supported of opportunity site plan! Pare list of goals Better use of resources Get tfie Mayor to have the A meeting I want to go to discussion rules ready and and getting something follow them. Also, have done! statements or questions ready to help stop problems. Council consideration of Meetings are more efficient meeting agenda items and and businesslike staying "on topic" with questions Stating things as though More congeniality and they are an opinion of one, respect throughout the when in fact, a11 of us share counciL it. Makes it look as though the remaining council doesn't agree. Staff/residents unified voice. Whether to continue having Are they daing any good? these workshops Full and fair debate what does that mean to YOU Roie of City Manager how 22 rnuch control and authority is enough? Dropping study session portion of ineetings what's the point we're told to just ask our questions befarehand anyway and then we re-ask them on camera (good but redundant) or not (not always good) Communication obstacles why can't we remove them and how can we work effectively with them? Future viability of being stand-alone government entity given the cost of govermnent and BC's economic demo's. Robert's Rules of Order and Parliamentarian who's in charge? BC's interactions with State Reps? 6. Other comments or observations you wish to make. 23