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08/01/2016 - City Council RegularAGENDA EAGAN CITY COUNCIL EAGAN MUNICIPAL CENTER BUILDING AUGUST 1, 2016 6:30 P.M. I. ROLL CALL AND PLEDGE OF ALLEGIANCE II. ADOPT AGENDA III. RECOGNITIONS AND PRESENTATIONS A. CITIZEN RECOGNITION of Officer Joe Moseng IV. CONSENT AGENDA (Consent items are acted on with one motion unless a request is made for an item to be pulled for discussion) A. APPROVE MINUTES B. PERSONNEL ITEMS C. APPROVE Check Registers D. APPROVE Contracts E. AMEND IRU Agreements with Dakota County for the Dodd Road JPA Fiber Project F. APPROVE JPA between City of Eagan and Dakota County Drug Task Force for Drug Detection Dog Handler G. ADOPT resolution proclaiming Tuesday, August 2, 2016 as National Night Out H. SCHEDULE public hearing date for September 6, 2016 to certify delinquent nuisance abatement bills I. SCHEDULE public hearing date for September 6, 2016 to certify delinquent utility bills J. APPROVE Temporary On -Sale Liquor License and waive the license fee for the Eagan Foundation on October 6, 2016 at 1501 Central Parkway K. APPROVE Exempt Permit for the Eagan Foundation to hold a raffle on October 6, 2016 at 1501 Central Parkway L. APPROVE Temporary On -Sale Liquor License and waive the license fee for Faithful Shepherd Catholic School on November 19, 2016 at 3355 Columbia Drive M. APPROVE Exempt Permit for Faithful Shepherd Catholic School to hold a raffle on November 19, 2016 at 3355 Columbia Drive N. APPROVE Final Payment, Contract 16-11, Well 11— Rehabilitation 0. AWARD Contract 16-21 Central Area Lighting Improvements P. APPROVE resolution for a street name change - MV Eagan, LLC Q. APPROVE Extended Working Hours, Project 1221/ County Project 31-90 — Pilot Knob Road Storm Structure Rehabilitation R. APPROVE Cost Share, Operation and Maintenance Agreement with Property Owner at 695 Hay Lake Court S. APPROVE Telecommunications Lease Amendment Agreement with AT&T T. APPROVE Cooperation Agreement with Dakota County CDA for participation in Community Development Block Grants through FY 2019 U. APPROVE resolution to accept donation from Central Park Commons for Food Truck Festival V. ADOPT resolution to accept a $500 donation from the Eagan Citizen's Crime Prevention Association W. AUTHORIZE the application for a grant from the Metropolitan Regional Arts Council in the amount of $10,000 for an Organizational Development Grant X. APPROVE Extended Working Hours, Project 1095/County Project 31-76 — Pilot Knob Rd Corridor Improvements Y. APPROVE Comprehensive Guide Plan Amendment and Rezoning for Outlot I, Gopher Eagan Industrial Park 2nd Addition — City of Eagan V. PUBLIC HEARINGS A. CONSIDER — a business subsidy pursuant to Minnesota Statutes Sections 116J.993 to 116J.995 to J & J Solutions, Inc. d/b/a Corvida Medical, Inc VI. OLD BUSINESS A. ORDINANCE AMENDMENT- Temporary Family Dwellings -An Ordinance Amendment to City Code Chapter 11 relative to temporary family dwellings VII. NEW BUSINESS A. PRELIMINARY PLANNED DEVELOPMENT - The Gardner School - A Preliminary Planned Development to allow a 16,200 sq. ft. daycare and early childhood education facility located at 1195 Town Centre Drive B. CONDITIONAL USE PERMIT- Dart Advantage Warehousing - A Conditional Use Permit to allow outdoor storage of semi -tractors and trailers located at 2841 Beverly Drive VIII. LEGISLATIVE / INTERGOVERNMENTAL AFFAIRS UPDATE IX. ECONOMIC DEVELOPMENT AUTHORITY A. CALL TO ORDER B. ADOPTAGENDA C. CONSENTAGENDA 1. APPROVE EDA Minutes 2. SCHEDULE Public Hearing on August 16, 2015 to consider sale and purchase agreement with JR Hospitality for Lot 1, Block 1, Cedar Grove Parkway 4th Addition D. OLD BUSINESS E. NEW BUSINESS F. OTHER BUSINESS G. ADJOURN X. ADMINISTRATIVE AGENDA A. City Attorney B. City Council Comments C. City Administrator D. Director of Public Works E. Director of Community Development XI. VISITORS TO BE HEARD (for those persons not on the agenda) XII. CLOSED SESSION XIII. ADJOURNMENT 4b� City of Eap ma TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS FROM: CITY ADMINISTRATOR OSBERG DATE: JULY 29, 2016 SUBJECT: AGENDA INFORMATION FOR AUGUST 1, 2016 CITY COUNCIL MEETING ADOPT AGENDA After approval is given to the August 1, 2016 City Council agenda, the following items are in order for consideration. Agenda Information Memo August 1, 2016, Eagan City Council Meeting RECOGNITIONS AND PRESENTATIONS A. Recognition Of Officer Joseph Moseng By Eagan Resident Gordon Finley Facts: ➢ Police Chief McDonald will introduce Eagan Resident Gordon Finley and Officer Joseph (Joe) Moseng to the Mayor and Council. ➢ On December 17, 2013, at approximately 8:54 a.m., Eagan Police and Fire Personnel were dispatched to Mr. Finley's home on Ponderosa Circle in regards to a structure fire. Officer Moseng was one of the first responding officers to arrive and forced open a door to see if anyone was inside the residence. No one was home, but the family dog escaped the fire. In the wake of the tragedy, Officer Moseng kept in contact with Mr. Finley. ➢ In appreciation for Officer Moseng's efforts, Mr. Finley wanted an opportunity to address the Mayor and Council and present a plaque. He will be joined by his wife Kathy and pet "Frankie". Attachments: (0) Agenda Information Memo August 1, 2016 Eagan City Council Meeting CONSENT AGENDA The following items referred to as consent items require one (1) motion by the City Council. If the City Council wishes to discuss any of the items in further detail, those items should be removed from the Consent Agenda and placed under Old or New Business unless the discussion required is brief. A. Approve Minutes Action To Be Considered: To approve the minutes of the July 19, 2016 regular City Council meeting as presented or modified. Attachments: (1) CA -1 July 19, 2016 Minutes MINUTES OF A REGULAR MEETING OF THE EAGAN CITY COUNCIL Eagan, Minnesota JULY 19, 2016 A Listening Session was held at 6:00 p.m. prior to the regular City Council meeting. Present were Mayor Maguire and Councilmembers Bakken, Fields, Hansen and Tilley. A regular meeting of the Eagan City Council was held on Tuesday, July 19, 2016 at 6:30 p.m. at the Eagan Municipal Center. Present were Mayor Maguire and Councilmembers Bakken, fields, Hansen and Tilley. Also present were City Administrator Osberg, Assistant City Administrator Miller, Communications Director Garrison, Director of Community Development Hutmacher, City Planner Ridley, Director of Public Works Matthys, Director of Parks and Recreation Pimental, Police Chief McDonald, Fire Chief Scott, City Clerk Scipioni, City Attorney Dougherty, and Executive Assistant Stevenson. AGENDA Councilmember Hansen moved, Councilmember Tilley seconded a motion to approve the agenda as presented. Aye:5 Nay:0 RECOGNITIONS AND PRESENTATION There were no recognitions and presentations to be heard. CONSENT AGENDA Councilmember Fields moved, Councilmember Bakken seconded a motion to approve the Consent agenda as presented: Aye: 5 Nay: 0 A. It was recommended to approve the minutes of July 5, 2016 regular City Council meeting as presented. B. Personnel Items: 1. It was recommended to hire seasonal and temporary employees for the summer of 2016: Michael Klein, Brady Wallner, Mitchell Cumming, Kyle Salage, Molly Mccoy, Trevor Anderson, Joshua Brown, Dorea Arguelles, Jack Johnson -Macpherson, and Mara Johnson. 2. It was recommended to hire Marvel Hughes, Part Time Custodian at the Eagan Community Center. 3. It was recommended to hire a Full Time Engineering Tech, to be named. 4. It was recommended to hire a Full Time Fire Fighter, to be named. C. It was recommended to ratify the check register dated July 1 and July 8, 2016 as presented. D. It was recommended to approve the ordinary and customary contract with Pros of the Rope, LLC. E. It was recommended to approve a temporary on -sale liquor license and waive the license fee for St. John Neumann Catholic Church on August 13 and 14, 2016 at 4030 Pilot Knob Road. F. It was recommended to adopt a resolution approving an Exempt Permit for Faithful Shepherd Catholic School to conduct a raffle on September 16, 2016 at 3355 Columbia Drive. G. It was recommended to approve a temporary on -sale liquor license and waive the license fee for Church of St. Thomas Beckett on September 11, 2016 at 4455 South Robert Trail. City Council Meeting Minutes July 19, 2016 2 page H. It was recommended to adopt a resolution approving an Excluded Bingo Permit for the Church of St. Thomas Becket to conduct bingo on September 11, 2016 at 4455 South Robert Trail. I. It was recommended to adopt a resolution approving a Premise Permit for the Eagan High School Football Booster Club to conduct lawful gambling at New Bohemia Eagan, 1278 Town Centre Drive Suite 195. J. It was recommended to approve an Off -Sale Liquor License for Minnesota Fine Wines & Spirits, LLC doing business as Total Wine & More, located at 1440 Central Park Commons. K. It was recommended to approve an On -Sale and Sunday Liquor License for Loco U&ME, LLC doing business as Valley Lounge, located at 3385 Sibley Memorial Highway. L. It was recommended to approve Professional Services Agreements with Thomas Ferber and Nancy Gibbs for temporary election consultation services. M. It was recommended to receive bids for City Contract 16-23 (Country Hollow Lift Station — Sanitary Sewer Improvements), award a contract to G.F. Jedlicki, Inc., for the bid amount of $326,995.00, and authorize the Mayor and City Clerk to execute all related documents. N. It was recommended to approve Change Order No. 2 to Contract 15-23 (Well No. 3 Resotration — Water System Improvements) and authorize the Mayor and City Clerk to execute all related documents. 0. It was recommended to approve a Joint Powers Agreement with the Dakota County Transportation Department and the City of Mendota Heights for Project 1220, Pilot Knob Road (CSAH 31) & 1-494 — Traffic Signal Revisions, and authorize the Mayor and City Clerk to execute all related documents. P. It was recommended to approve the recommendations of the Public Works Committee regarding an appeal to a water meter surcharge. Q. It was recommended to approve the final payment for Contract 16-16 (Denmark Avenue Rain Garden Rehabilitation) in the amount of $497.35 to Outdoor Lab Landscape Design, LLC and accept the improvements for perpetual City maintenance subject to warranty provisions. R. It was recommended to approve a Cost Share, Operation and Maintenance Agreement with Mary and Curtis Kenkel (3669 Pinecrest Court) to help implement a Shoreland and Upland Buffer Project at Fish Lake through the Water Quality Cost -Share Partnership Program and authorize the Mayor and City Clerk to execute all related documents. S. It was recommended to schedule a Public Hearing on August 1, 2016 to consider a business subsidy pursuant to Minnesota Statutes Sections 116J.993 to 116J.995 to J & & Solutions, Inc. d/b/a Corvida Medical, Inc., for development of business at 3660 Dodd Road. T. It was recommended to approve a Final Subdivision, Willow Ridge at Wescott, to create 15 lots upon approximately 10 acres located at 1055 and 1085 Wescott Road, north of Wescott Road and east of Lexington Avenue. U. It was recommended to approve a Final Plat (West End Trap Club) to create one lot upon approximately 19 acres located at 4899 Brooklyn Lane. PUBLIC HEARINGS Variances — City of Eagan City Administrator Osberg introduced the item noting the Council is being asked to consider approval of parking setback variances for two properties along 3386 and 3390 Pilot Knob Road associated with the Pilot Knob Road Corridor Improvements. City Council Meeting Minutes July 19, 2016 3 page Public Works Director Matthys gave a staff report and provided a site map. Mayor Maguire opened the public hearing. There being no public comment, he turned the discussion back to the Council. Councilmember Bakken moved, Councilmember Fields seconded a motion to approve parking setback Variances for two properties along at 3386 and 3390 Pilot Knob Road associated with Pilot Knob Road Corridor Improvements (County Project 31-76/City Project 1095), for 3386 Pilot Knob Road, a 10 foot parking setback variance, and 3390 Pilot Knob Road, a 13 foot parking setback variance. Aye: 5 Nay: 0 OLD BUSINESS There were no old business items to be heard. NEW BUSINESS Rezoning, Preliminary Planned Development and Preliminary Subdivision (Summerbrooke) — DR Horton Inc. MN City Administrator Osberg introduced the item noting this item was before the Council on April 5, 2016. The item was continued to the June 7 meeting and requested that the applicant consider their concerns regarding the Rezoning to R -IS and access. Subsequently, the applicant withdrew the R -1S Rezoning and Variance requests and submitted for a Rezoning to Planned Development and a Preliminary Planned Development; the preliminary subdivision request hasn't changed in a substantive way. City Planner Ridley gave a staff report and provided a site map. The applicant was present and available for questions. The Council discussed the development. Mayor Maguire opened the public comment. The following residents spoke against the request and shared their concerns regarding traffic, retaining wall, density, and street connection: John Kenley, 750 Camberwell Drive, and Kristie and Brad Hagen, 758 Camberwell Drive. Gary and Ayrica Ash, 755 Diff ley Road, shared their concerns regarding their property. There being no further public comment, Mayor Maguire turned the discussion back to the Council. After further discussion several Councilmembers stated concerns regarding the cul-de-sac and southern lot sizes. City Attorney Dougherty clarified that the cul-de-sac modification discussed and the loss of a lotus part of the Final Subdivision application would not require a new Public Hearing. Councilmember Hansen moved, Councilmember Fields seconded a motion to approve a Rezoning from A, Agricultural, to PD, Planned Development, upon approximately 15 acres located at 775 and 785 Diffley Road. Aye: 3 Nay: 2 (Bakken and Tilley) City Council Meeting Minutes July 19, 2016 4 page Councilmember Hansen moved, Councilmember Fields seconded a motion to approve a Preliminary Planned Development (Summerbrooke) for the development of a single family neighborhood consisting of 33 lots upon approximately 15 acres located at 775 and 785 Diffley Road, subject to the following amended conditions: Aye: 3 Nay:2 (Bakken and Tilley) 1. The property shall be subdivided and platted prior to Final Planned Development approval. 2. The developer shall execute a Preliminary Planned Development Agreement which includes the following plans. • Site Plan (per Site Plan dated May 13, 2016) • Tree Preservation Plan • Tree Mitigation Plan 3. A Final Planned Development Agreement shall be executed prior to issuance of any building permits. The Final Planned Development Agreement shall be recorded against the property at the Dakota County Recorder's office. The following plans are necessary for each Final Planned Development Agreement: • Site Plan • Tree Preservation Plan • Tree Mitigation Plan 4. The term of the Preliminary Planned Development shall be five (5) years. 5. Lots meeting the R-1 minimum dimensional standards of 85' width and 12,000 s.f. area shall be subject to R-1 zoning standards. Those lots meeting the R -IS minimum standards of 65' width and 8,000 s.f. area shall be subject to R -IS zoning standards. 6. Lots that exceed 11,999 s.f. are allowed a maximum building coverage of 20% and lots under 12,000 s.f. are allowed a maximum building 25% coverage. 7. Lots that exceed 11,999 s.f. are allowed a minimum side yard setback of 5' for a garage and 10' for the house and lots under 12,000 s.f. are allowed a minimum side yard setback of 5' for the garage and 6' for the house. 8. Any monument or neighborhood identification signs shall be subject to City Sign Code standards. Any such signs shall be consistent in design throughout the development, and sign plans shall be provided at the time of Final Planned Development. 9. All erosion/sediment control plans submitted for development and grading permits shall be prepared by a designer who has received current Minnesota Department of Transportation (MNDOT) training, or approved equal training as determined by the City Engineer in designing stormwater pollution prevention plans. 10. All personnel responsible for the installation of erosion/sediment control devices, and the establishment of vegetation for the development, shall have received Erosion/Sediment Control Inspector/Installer certification through the University of Minnesota, or approved equal training as determined by the City Engineer. 11. Erosion control measures shall be installed and maintained in accordance with City Code and engineering standards. 12. All existing well and septic systems on the site shall be abandoned in accordance with Dakota County and City standards as part of this development. Well sealing records shall be provided to the City. 13. The developer shall enter into an encroachment agreement with the City, in a form acceptable to the City Attorney, for all retaining walls located in drainage and utility easements. 14. All retaining walls shall be privately owned and maintained. City Council Meeting Minutes July 19, 2016 5 page 15. The developer shall obtain and provide for review by the city attorney a temporary construction easement or agreement from neighboring properties for any off-site work necessary to construct the retaining walls prior to the release of the plat for recording. 16. The developer shall meet all requirements of Minn. Rules Ch. 8420 including application to the City regarding the wetland boundary and any proposed wetland replacement. The City decisions regarding such application shall occur prior to Final Subdivision submittal. 17. This development shall meet the City's Post Construction Stormwater Management Requirements (City Code §4.34) for stormwater management and surface water quality, including Runoff Rate Control and 1.1" Volume Control (or Alternative Stormwater Management Designs, if fully documented, including on-site testing results and if accepted by the City Engineer) on the site's new impervious surface area (including effective soil remediation for the site's disturbed soils that are to be revegetated). 18. The developer shall provide adequately sized pre-treatment (e.g. forebay, etc.) at, or immediately upstream of, all stormwater management facility (e.g. infiltration basin) inlets to provide for effective capture and easily -accessible cleanout of fine -sand sized particles and floatable pollutants. Details shall be included in applicable plan sheet(s). 19. The developer shall provide unobstructed equipment access paths (without obstructions from grading, private utilities, landscaping, trees/branches, large shrubs, etc.), from street -edge to all surface stormwater facilities' inlets/outlets. The unobstructed equipment access path (e.g. 15' width reinforced turf system from street edge to both forebay inlet areas) shall be capable of fully supporting typical maintenance/excavation equipment, for periodic maintenance access to the surface storm water facilities. 20. The developer shall provide the City with soil boring logs prior to receiving city approval to permit land disturbing activity from a minimum of four soil -borings within any proposed infiltration area, extending a minimum of 10' below the bottom of the proposed infiltration feature, to evaluate and ensure suitability (or properly document for limitations) of infiltration. If the soil boring logs and on-site infiltration testing indicate incompatibility of existing sub -soil permeability with the submitted and reviewed design plans for meeting volume control requirements, the developer shall revise the design and/or construction plans (e.g. over- excavation/soil-amendment depth, etc.), or at the direction and acceptance of the City Engineer shall proceed with Alternative Stormwater Volume Control Designs, to ensure volume control requirements are fully met, to the satisfaction of the City Engineer. 21. The developer shall provide construction details, prior to receiving city approval to permit land disturbing activity, of the proposed infiltration system for City review/acceptance by the City Engineer and include in construction plans. Construction details shall include infiltration/filtration basin cross-section(s), construction sequencing/protection/restoration notes, sizing/volume tables, details for stable inlets/outlets/emergency overflows, unobstructed inspection/maintenance access areas to inlets/outlets, soil amendment criteria, live planting, seeding and temporary/permanent erosion -control details, etc., to ensure infiltration practice is properly designed, constructed, planted, and adequately protected during/after construction to prevent clogging, and able to be properly maintained (e.g. unobstructed equipment access, etc.) to function as intended. These graphical details and notes shall be prominently included in all applicable plan sheets (e.g. Grading Plan, Utility Plan, etc.). Volume and placement of iron - enhanced sand filtration media shall be planned (and documentation/calculations provided to the City Water Resources staff) to achieve a minimum of 25 -years lifespan based on modeled dissolved phosphorus load for the iron -enhanced sand filter. 22. Prior to receiving city approval to permit land disturbing activity, the property owner shall provide detailed Soil Management Strategies for City review, and acceptance by the City City Council Meeting Minutes July 19, 2016 6 page Engineer, that provide clear assurances that by final grading, prior to installation of any irrigation and plantings, the disturbed areas that are to be revegetated will have protected and/or restored soil permeability to non -compacted soil conditions in the top 12" of soil with no less than 5% soil organic matter content and less than 200 psi of soil compaction in the top 12" of topsoil, to comply with Volume Control requirements. These graphical details, soil remediation area graphical depictions/keys and notes on soil protection/restoration shall be included in the Stormwater Management Plan and prominently included in all applicable plan sheets (e.g. Erosion &Sediment Control Plan, Grading & Drainage Plan, Landscape Plan, etc.) to clearly convey requirement to the contractors involved. 23. Prior to receiving a Certificate of Occupancy for any affected residential construction, Soil Management Strategy implementation documentation (e.g. representative on-site soil samples, compaction testing and soil organic content test results) shall be provided to City Water Resources staff to verify approved soil management strategy compliance. 24. During infiltration/filtration system area over-excavation/sub-soil work, the developer shall provide the City Water Resources staff with 24-hour advance notice of the occurrence of infiltration verifications and also prior to any excavation and/or soil backfilling within the infiltration practice. 25. The developer shall provide the City Engineer as -built plans before the City returns any Stormwater-related Performance Financial Guarantees on the development site, that demonstrate that all constructed stormwater conveyance structures, stormwater management facilities (forebay, infiltration practice, etc.), and soil management strategies conform to design and/or construction plans, as approved by the City. As -built volumes (for retention) shall be provided for the forebay and infiltration practice. The developer shall submit to the City Engineer certification that the stormwater management facilities have been installed in accord with the plans and specifications approved. This certification shall be provided by a Professional Engineer licensed in the State of Minnesota. 26. This development shall provide hydrant spacing and locations in accordance with City Fire Department and Public Works standards. 27. The developer shall acquire a drainage and utility easement for all public utilities that extend onto neighboring properties in a form acceptable to the City Attorney prior to the release of the plat for recording. 28. The developer shall provide a proposal/infrastructure plan to be approved by staff to provide telecommunications fiber to the home (FTTH) or conduit to all home sites to permit third party providers to install FTTH within the neighborhood. This development shall install fiber optic cable, or a conduit for future installation, during construction of the development. 29. All construction traffic associated with this development shall access and exit the site only via the Diffley Road. 30. The developer shall acquire right-of-way or a roadway easement, of sufficient size, in a form acceptable to the city attorney for the cul-de-sac that extends to the property to the east prior to the release of the plat for recording. 31. The concrete sidewalk proposed within public right-of-way shall be a minimum of 6 feet in width if concrete, or 8 feet in width if bituminous. A Trail Dedication credit shall apply if the pedestrian facility is an 8 foot wide bituminous trail. 32. This development shall be subject to a cash parks dedication payable at the time of Final Subdivision at the rates then in effect. 33. The developer shall fulfill current tree mitigation requirements through the installation of two - hundred sixty-seven (267) Category A trees and with the balance being provided with a cash City Council Meeting Minutes July 19, 2016 7 page ($59,400.00 per plan dated March 24, 2016) prior to any site disturbance or at time of Final Subdivision. 34. Mitigation trees shall not be installed in any public easement area. 35. The developer shall protect the preserved trees' critical root zones through the placement of required Tree Protective measures (i.e. orange colored silt fence or 4 foot polyethylene laminate safety netting), to be installed at the Drip Line or at the perimeter of the Critical Root Zone, whichever is greater, of significant trees/woodlands to be preserved on-site. 36. The developer shall schedule a site meeting with adjacent landowners to address actions required to protect critical root zones of off-site trees. The City of Eagan Supervisor of Forestry shall attend this meeting. 37. The developer shall contact the City Forestry Division and set up a pre -construction site inspection at least five days prior to the issuance of the grading permit to ensure compliance with the approved Tree Preservation Plan and placement of the Tree Protection Fencing. Councilmember Hansen moved, Councilmember Fields seconded a motion to approve a Preliminary Subdivision (Summerbrooke) to create 33 lots upon approximately 15 acres located at 775 and 785 Diffley Road, subject to the conditions per the revised conditions of approval: Aye: 3 Nay: 2 (Bakken and Tilley) 1. The developer shall comply with these standards conditions of plat approval as adopted by Council on February 2, 1993: Al, B1, B2, B3, B4, C1, C2, C3, C4, E1, F1, G1, H1, 11 and L1. 2. The property shall be platted. 3. All erosion/sediment control plans submitted for development and grading permits shall be prepared by a designer who has received current Minnesota Department of Transportation (MNDOT) training, or approved equal training as determined by the City Engineer in designing stormwater pollution prevention plans. 4. All personnel responsible for the installation of erosion/sediment control devices, and the establishment of vegetation for the development, shall have received Erosion/Sediment Control Inspector/Installer certification through the University of Minnesota, or approved equal training as determined by the City Engineer. 5. Erosion control measures shall be installed and maintained in accordance with City Code and engineering standards. 6. All existing well and septic systems on the site shall be abandoned in accordance with Dakota County and City standards as part of this development. Well sealing records shall be provided to the City. 7. The developer shall enter into an encroachment agreement with the City, in a form acceptable to the City Attorney, for all retaining walls located in drainage and utility easements. 8. All retaining walls shall be privately owned and maintained. 9. The developer shall obtain and provide for review by the city attorney a temporary construction easement or agreement from neighboring properties for any off-site work necessary to construct the retaining walls prior to the release of the plat for recording. 10. This development shall meet all requirements of Minn. Rules Ch. 8420 including application to the City regarding the wetland boundary and any proposed wetland replacement. The City decisions regarding such application shall occur prior to Final Subdivision submittal. 11. This development shall meet the City's Post Construction Stormwater Management Requirements (City Code §4.34) for stormwater management and surface water quality, including Runoff Rate Control and 1.1" Volume Control (or Alternative Stormwater City Council Meeting Minutes July 19, 2016 8 page Management Designs, if fully documented, including on-site testing results and if accepted by the City Engineer) on the site's new impervious surface area (including effective soil remediation for the site's disturbed soils that are to be revegetated). 12. The developer shall provide adequately sized pre-treatment (e.g. forebay, etc.) at, or immediately upstream of, all stormwater management facility (e.g. infiltration basin) inlets to provide for effective capture and easily -accessible cleanout of fine -sand sized particles and floatable pollutants. Details shall be included in applicable plan sheet(s). 13. The developer shall provide unobstructed equipment access paths (without obstructions from grading, private utilities, landscaping, trees/branches, large shrubs, etc.), from street -edge to all surface stormwater facilities' inlets/outlets. The unobstructed equipment access path (e.g. 15' width reinforced turf system from street edge to both forebay inlet areas) shall be capable of fully supporting typical maintenance/excavation equipment, for periodic maintenance access to the surface storm water facilities. 14. The developer shall provide the City with soil boring logs prior to receiving city approval to permit land disturbing activity from a minimum of four soil -borings within any proposed infiltration area, extending a minimum of 10' below the bottom of the proposed infiltration feature, to evaluate and ensure suitability (or properly document for limitations) for infiltration. If the soil boring logs and on-site infiltration testing indicate incompatibility of existing sub -soil permeability with the submitted and reviewed design plans for meeting volume control requirements, the developer shall revise the design and/or construction plans (e.g. over- excavation/soil-amendment depth, etc.), or at the direction and acceptance of the City Engineer shall proceed with Alternative Stormwater Volume Control Designs, to ensure volume control requirements are fully met, to the satisfaction of the City Engineer. 15. The developer shall provide construction details, prior to receiving city approval to permit land disturbing activity, of the proposed infiltration system for City review/acceptance by the City Engineer and include in construction plans. Construction details shall include infiltration/filtration basin cross-section(s), construction sequencing/protection/restoration notes, sizing/volume tables, details for stable inlets/outlets/emergency overflows, unobstructed inspection/maintenance access areas to inlets/outlets, soil amendment criteria, live planting, seeding and temporary/permanent erosion -control details, etc., to ensure infiltration practice is properly designed, constructed, planted, and adequately protected during/after construction to prevent clogging, and able to be properly maintained (e.g. unobstructed equipment access, etc.) to function as intended. These graphical details and notes shall be prominently included in all applicable plan sheets (e.g. Grading Plan, Utility Plan, etc.). Volume and placement of iron - enhanced sand filtration media shall be planned (and documentation/calculations provided to the City Water Resources staff) to achieve a minimum of 25 -years lifespan based on modeled dissolved phosphorus load for the iron -enhanced sand filter. 16. Prior to receiving city approval to permit land disturbing activity, the property owner shall provide detailed Soil Management Strategies for City review, and acceptance by the City Engineer, that provide clear assurances that by final grading, prior to installation of any irrigation and plantings, the disturbed areas that are to be revegetated will have protected and/or restored soil permeability to non -compacted soil conditions in the top 12" of soil with no less than 5% soil organic matter content and less than 200 psi of soil compaction in the top 12" of topsoil, to comply with Volume Control requirements. These graphical details soil remediation area graphical depictions/keys and notes on soil protection/restoration shall be included in the Stormwater Management Plan and prominently included in all applicable plan sheets (e.g. Erosion & Sediment Control Plan, Grading & Drainage Plan, Landscape Plan, etc.) to clearly convey requirement to the contractors involved. City Council Meeting Minutes July 19, 2016 9 page 17. Prior to receiving a Certificate of Occupancy for any affected residential construction, Soil Management Strategy implementation documentation (e.g. representative on-site soil samples, compaction testing and soil organic content test results) shall be provided to City Water Resources staff to verify approved soil management strategy compliance. 18. During infiltration/filtration system area over-excavation/sub-soil work, the developer shall ensure that a Certified Soil Scientist will be present to verify and document that practice area sub -soils are suitable for a saturated condition infiltration rate of 1 -inch per hour or greater (but less than 8.0 -inch per hour). If the sub -soil infiltration rates are less than 1 -inch per hour (or greater than 8.0 -inch per hour), the developer shall immediately notify the City Engineer and revise the volume control practice(s) as necessary (e.g. over-excavation/soil-amendment depth, etc.) to ensure volume control requirements are fully met. Documentation shall be provided to the City within 48 -hours after infiltration testing. The developer shall provide the City Water Resources staff with 24-hour advance notice of the occurrence of infiltration verifications and also prior to any excavation and/or soil backfilling within the infiltration practice. 19. The developer shall provide the City Engineer as -built plans before the City returns any Stormwater-related Performance Financial Guarantees on the development site, that demonstrate that all constructed stormwater conveyance structures, stormwater management facilities (forebay, infiltration practice, etc.), and soil management strategies conform to design and/or construction plans, as approved by the City. As -built volumes (for retention) shall be provided for the forebay and infiltration practice. The developer shall submit to the City Engineer certification that the stormwater management facilities have been installed in accord with the plans and specifications approved. This certification shall be provided by a Professional Engineer licensed in the State of Minnesota. 20. This development shall provide hydrant spacing and locations in accordance with City Fire Department and Public Works standards. 21. The existing house on Lot 20, Block 1, shall connect to city sanitary sewer upon installation of the sewer in the development. 22. Two water and sewer services shall be installed from the utilities under the cul-de-sac during construction of the development to allow for future subdivision of Lot 20, Block 2. 23. The developer shall acquire a drainage and utility easement for all public utilities that extend onto neighboring properties in a form acceptable to the City Attorney prior to the release of the plat for recording. 24. The developer shall provide a proposal/infrastructure plan to be approved by staff to provide telecommunications fiber to the home (FTTH) or conduit to all home sites to permit third party providers to install FTTH within the neighborhood. This development shall install fiber optic cable, or a conduit for future installation, during construction of the development. 25. All construction traffic associated with this development shall access and exit the site only via the Diffley Road. 26. The developer shall acquire right-of-way or a roadway easement, of sufficient size, in a form acceptable to the city attorney for the cul-de-sac that extends to the property to the east prior to the release of the plat for recording. 27. The concrete sidewalk proposed within public right-of-way shall be a minimum of 6 feet in width, or 8 feet in width if bituminous. A Trail Dedication credit shall apply if the pedestrian facility is an 8 foot wide bituminous trail. 28. This development shall be subject to a cash parks dedication payable at the time of Final Subdivision at the rates then in effect. City Council Meeting Minutes July 19, 2016 10 page 29. The Development shall be responsible for the construction of 300 feet of "public sidewalk", consistent with the development plans and City specifications, for which a credit of $9,360 shall be applied towards the $7,750 Trail Dedication due, to satisfy trail dedication. 30. If Lot 20 is subdivided in the future, additional park dedication shall be required for the new lot; however, trail dedication shall be satisfied as the developer has exceeded the trail dedication due. 31. When access to Diffley Road to Lot 20 is restricted, a new access shall be from the City public street. 32. The developer shall fulfill current tree mitigation requirements through the installation of two - hundred sixty-one (261) Category A trees and with a cash payment of $55,800.00. two -hundred sixty-seven (267) Category A trees and with the balance being provided with a cash ($59,400.00 per plan dated March 24, 2016) prior to any site disturbance or at time of Final Subdivision. 33. Mitigation trees shall not be installed in any public easement area. 34. The developer shall protect the preserved trees' critical root zones through the placement of required Tree Protective measures (i.e. orange colored silt fence or 4 foot polyethylene laminate safety netting), to be installed at the Drip Line or at the perimeter of the Critical Root Zone, whichever is greater, of significant trees/woodlands to be preserved on-site. 35. The developer shall schedule a site meeting with adjacent landowners to address actions required to protect critical root zones of off-site trees. The City of Eagan Supervisor of Forestry shall attend this meeting. 36. The developer shall contact the City Forestry Division and set up a pre -construction site inspection at least five days prior to the issuance of the grading permit to ensure compliance with the approved Tree Preservation Plan and placement of the Tree Protection Fencing. 37. The developer shall acquire a public drainage and utility easement of sufficient size and location, as determined necessary by engineering standards, for all public utilities and drainage ways that extend onto the property located at 755 Diffley Road as determined by the City Engineer. LEGISLATIVE / INTERGOVERNMENTAL AFFAIRS UPDATE City Administrator Osberg announced Laurie Halverson was one of the State Representatives named Legislators of Distinction by the League of Minnesota Cities. The League of Minnesota Cities selected 15 members of the Minnesota House of Representatives and 16 state senators as Legislators of Distinction for 2016. The honor recognizes legislators for specific actions that aided efforts of Minnesota cities during this year's legislative session. ADMINISTRATIVE AGENDA There were no administrative agenda items to be heard. VISITORS TO BE HEARD Past practice and policy during election years, from the opening of the Council candidate filing period through the November election, the Visitors to be Heard segment of the meeting shall occur for a period of time not to exceed ten minutes and will not be televised. There were no visitors to be heard. City Council Meeting Minutes July 19, 2016 11 page ADJOURNMENT Councilmember Tilley moved, Councilmember Bakken seconded a motion to adjourn the meeting at 8:15 p.m. Aye: 5 Nay: 0 Date Mayor City Clerk Agenda Information Memo August 1, 2016 Eagan City Council Meeting CONSENT AGENDA B. Personnel Items ITEM 1. Action To Be Considered: Authorize the hiring of Susan Peterson, temporary office support to Police Records. Facts: ➢ The City Council authorized the replacement of a FT Clerical Tech on April 19, 2016 ➢ The recruitment phase of filling this position will likely take until October 24, 2016. ➢ Staffing has been further reduced due to a leave of absence in the department. Due to the current workload, staff recommends hiring a temporary employee to assist with office related duties until a regular full time employee can be hired. Informative: ➢ Tom Strid has been hired as a FT Engineering Technician o This hiring was approved 7/19/16 ➢ Andrea Froeber has been hired as a PT Clerical Tech IV- Community Development o This hiring was approved 7/19/16 ➢ Jacob McPherson has been hired as a FT Firefighter o This hiring was approved 7/19/16 Agenda Information Memo August 1, 2016 Eagan City Council Meeting CONSENT AGENDA C. Ratify Check Registers Action To Be Considered: To ratify the check register dated July 15 and July 22, 2016 as presented. Attachments: (2) CC -1 Check register dated July 15, 2016 CC -2 Check register dated July 22, 2016 Agenda Information Memo August 1, 2016, Eagan City Council Meeting CONSENT AGENDA D. Approve Contracts Action To Be Considered: To approve the ordinary and customary contracts listed below. Facts: The contracts listed below are in order for Council approval. Following approval, the contracts will be electronically executed by the Mayor and City Clerk. Contracts to be approved: Agreement with Tom Wollan Sr. for flag football officiating services Entertainment Agreement with The Family Trade for musical entertainment during Harvest of Art Attachments: (0) The contracts are available from the City Clerk's Office. Agenda Information Memo August 1, 2016 Eagan City Council Meeting CONSENTAGENDA E. Amend IRU Agreementswith Dakota County for Dodd Road Fiber Project Action To Be Considered: To amend IRU Agreementswith Dakota County for Dodd Road Fiber Project Facts: ➢ On June 21, 2016 Council Meeting, Council approved a Joint Powers Agreement with Dakota Countyforthe Dodd Road Fiber Project. It was determined thatthe IRUs used in this agreement had old exhibitsthat referenced incorrect fiber assignments and pathway. This amendment to the IRU Agreements updates and corrects the exhibits to reflect the use of assigned strands and fiberroute. ➢ As part of the agreement, the County plans to lease strands for use in County facilities. It plans to repopulate the City's existing conduit with fiber and supplythe City with fiberstrands with no additional investment from the City. ➢ The term of this contract is for 20 years. The County will pay the City one-time fee of $58,188 for this fiber IRU. Attachments: (3) CE -1 IRU Agreement CE -2 IRU Agreement CE -3 IRU Agreement FIBER OPTIC CABLE INDEFEASIBLE RIGHT TO USE AGREEMENT BY AND BETWEEN DAKOTA COUNTY AS GRANTOR F.�� E CITY OF EAGAN AS GRANTEE EXHIBITS Attachments A, Fiber Cable Diagram B. IRU Cable and Fibers by Segment FIBER OPTIC CABLE INDEFEASIBLE RIGHT TO USE THIS FIBER OPTIC CABLE INDEFEASIBLE RIGHT TO USE together with any attached exhibits (collectively the "Agreement") made and entered into by and between Dakota County, acting by and through its Board of Commissioners ("IRU Grantor", or "the County"), and City of Eagan, a Minnesota,municipal corporation ("IRU Grantee" or "the City"). The IRU Grantor and IRU Grantee may be referred to herein individually as a "Party" or collectively as the "Parties." BACKGROUND A. The City has constructed a fiber optic communications system throughout the City of Eagan's central business districts, which includes fiber optic cable, referred to herein as the "City IRU Conduit" (hereinafter defined). B. The County is developing a broadband fiber optic network backbone within Dakota County to facilitate electronic communications between government owned facilities and infrastructure. C. To further the development of the fiber optic network backbone, the County intends to construct new Fiber Optic Cable between the Eagan City Hall and the County Western Service Center in Apple Valley and other connected backbone segments of new Fiber Optic Cable. D. In conjunction with this Fiber Optic Indefeasible Right To Use Agreement, Dakota County as IRU Grantor desires to authorize the City of Eagan as IRU Grantee to use specific Fibers within certain Fiber Optic Cable segments on the terms and conditions set forth below. E. This Agreement is entered into pursuant to Mini. Stat. § 471.59. DEFINITIONS The following terms are used in this IRU: A. "Effective Date" is the date upon which all Parties have executed this Agreement. B. "Fiber" means a glass strand or strands which is/are used to transmit a communication signal along the glass strand in the form of pulses of light. C. "Fiber Optic Cable" or "Cable" means a collection of fibers with aprotective outer covering. D. "TRU Cable" means a Cable containing one or more Fibers, constructed and owned by the City, described in Exhibit B, in which the County has an IRU pursuant to the terms of this Agreement. E. "IRU Fibers" means the specific unused Fiber described in Exhibit B, an IRU for which is granted to the County in the IRU Cable. F. "Indefeasible Right of Use" or "IRU" means an indefeasible right to use the IRU Fibers, provided, however, .that granting of such IRU does not convey legal title to the IRU Fibers. G. "Optical Splice Point" means a point where the County's Cable is connected to the City's Cable within a splice enclosure. H. "Relocation" means any physical movement of fiber optic cable or conduit required due to reconstruction, modification, change in grade, expansion or relocation of a County road or highway, or a city street. I. "County Right of Way" means the real property, including all fee simple, casements, access rights, rights of use and other interests, owned and/or operated by the County, devoted to County road or highway purposes. In consideration of their mutual promises, the parties expressly agree as follows: ARTICLE I LICENSES Section 1.1 IRUGrant. The County desires to obtain an IRU in the IRU Cable further described in Exhibits A and B to this Agreement, which is incorporated into this Agreement by reference. In consideration of the promises by the City in this .Agreement and the Agreement entered into by the.Parties for this fiber optic cable project, the City grants an IRU to the County in the IRU Cable identified in Exhibits A and B hereto. The City.shall deliver to the County the right to use .the IRU Fibers, including, but not limited to, handholes, splice enclosures, and related equipment but excluding any electronic or optronic equipment at termination points located in City facilities. Prior to use, the City shall coordinate with County the use of any handholes and splice enclosures required for the IRU Fibers. The County shall be entitled to use the IRU Fibers for any lawful purposes subject to (i) agreeing to be bound by all laws, regulations and any requirements of the County regarding access to County rights of way, and (ii) otherwise complying with the terms and conditions of this IRU. Section 1.2 License to County's Facilities. Subject to the terms and conditions of this Agreement, City hereby grants to the County a license to access and use the IRU Fibers within the Fiber Optic Cable Segments described below during the term of this Agreement. Exclusive use of two strands of Fiber from Fire Station #2 to the AccessEagan splice point #6 located at the intersection of Dodd Road and Yankee Doodle Rd. (Segment 4) Exclusive use of two strands of Fiber in each of four fiber sheaths installed by the City of Eagan in Segment 5 as described below. 2 First, two strands of single mode Fiber from the equipment room in Sperry Tower to the splice point located at the intersection of Towerview Rd. and Pilot Knob Rd. Second, two strands of single mode Fiber along Pilot Knob Rd. to the AccessEagan splice point #1 (SP #1) located at the intersection of Pilot Knob and Central Pkwy. Third, two strands of Fiber from AccessEagan SP #1 to SP #2 located at the intersection of Yankee Doodle Rd, and Lexington Ave. Fourth, two strands of Fiber from AccessEagan SP #2 to Fire Station #2. Section 1.3 Use of City and County Property. Notwithstanding anything contained to the contrary in this .Agreement, the Panties acknowledge and agree that nothing contained in this Agreement shall operate to limit, interfere with, or otherwise adversely affect each Party's right to manage, control, construct, relocate, maintain, replace and expand their fiber optic network equipment and infrastructure that either may deem necessary or desirable in its sole discretion, subject only to the TRU and the County's license to the IRU Conduit. ARTICLE II EFFECTIVE DATE AND TERM The County shall be entitled to use the IRU Fibers granted by the City upon the Effective Date. The .term of this Agreement shall be for twenty (20) years unless terminated in writing by the Parties or one of the events set forth in Section 10.2 of this Agreement occurs, whichever is first. Fibers. ARTICLE III LICENSE FEES No license fee will be charged to the County for the use of the IRU Cable or the IRU ARTICLE IV MAINTENANCE AND REPAIR Section 4.1 Installation. The County shall be fully responsible for installing the Cable it shall own and all equipment necessary to connect the County's Cable to its fiber optic network. The County must notify the City prior to installing the Cable and prior to accessing existing handholes owned by the City. Section 4.2 Maintenance and Repair. The County shall be fully responsible for maintaining and repairing the Cable the County owns and all of its equipment used to connect the Cable to the County's fiber optic network and associated equipment. 3 ARTICLE V SPLICING The County shall be responsible for the cost of the initial splicing of the County's Fibers at any Optical Splice Points and any additional splicing equipment that it requires to connect fibers to its optical fiber network. The County must obtain the City's written consent prior to splicing any City owned Cable. ARTICLE VI REPRESENTATIONS AND WARRANTIES Section 6.1 The County warrants that its use of the IRU Fibers shall comply with all applicable governmental codes, ordinances, laws, rules, .regulations and/or restrictions. Section 6.2 The City represents and warrants that it has the right to ,grant this IRU in the IRU Fibers. Section 6.3 The County's sole and exclusive remedy and the City's sole and exclusive maximum liability under this Agreement for failure of -the IRU Fibers shall be, at the sole option of the City, to repair or replace any defective portion of the IRU Fibers, provided that the City is promptly notified in writing upon discovery by the County that any portion of the IRU Fibers has failed to conform with the terms of this IRU, such writing to include an explanation of alleged failures. Section 6.4 Neither party's warranties extend to defects caused by acts of God, accident, fire or other hazard, or by any misuse, neglect, alterations, storage, attempts to repair, or use of other supplies not meeting specifications. THE FOREGOING WARRANTIES AND REMEDIES CONSTITUTE THE ONLY WARRANTIES WITH RESPECT TO THE IRU FIBERS. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS 'OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNES'S FOR A PARTICULAR PURPOSE, NEITHER PARTY SHALL IN ANY EVENT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY NA'T'URE WHATSOEVER FOR ANY REASON. ARTICLE VII LIABILITY; INDEMNIFICATION Section 7.1 Neither City nor County shall be liable to the other for any indirect, special, punitive or consequential damages arising under this Agreement or from any breach or partial breach of the provisions of this Agreement or arising out of any act or omission of either Party hereto, its directors, officers, employees, servants, contractors and/or agents, Section 7.2 The County assumes, releases and agrees to indemnify, defend, protect and save City (including its officers, agents, representatives and employees) harmless from and 4 against any claim, damage, loss, liability, .injury, cost and expense (including reasonable attorney's fees and expenses) in connection with any loss or damage to any person or property arising out of or resulting in any way from the acts or omissions to act, negligence or willful misconduct of the County, its directors, officers, employees, servants, contractors and/or agents in connection with the exercise of its rights and obligations under the terms of this IRU. The City assumes, releases and agrees to indemnify, defend, protect and. save County (including its officers, agents, representatives and employees) harmless from and against any claim, damage, loss, liability, injury, cost and expense (including reasonable attorney's fees and expenses) in connection with any loss or damage to any person or property arising out of or resulting in any way from the acts or omissions .to act, negligence or willful misconduct of the City, its directors, officers, employees, servants, contractors and/or agents in connection with the exercise of its rights and obligations under the terms of this IRU. Section 7.3 Nothing contained herein shall operate as a limitation on the right of either Party hereto to bring an action for damages, including consequential damages, against any third party based on any acts or omissions of such third party as such acts or omissions may affect the construction, operation or use of the Fiber, Cable, or IRU Fibers; provided, however, that (i) the Parties to this Agreement shall not have any claim against the other: Party for indirect, incidental, special, punitive or consequential damages (including, but not litnited to, any claim from any customer for loss of services), and (ii) each Party hereto shall assign such rights or claims, execute such documents and do whatever else may be reasonably necessary to enable the injured party to pursue any such action against such third party. ARTICLE VIII FORCE MAJE URE The obligations of the parties hereto are subject to force majeure and neither party shall be in default under this Agreement if any failure or delay.in performance is caused by strike or other labor dispute; accidents; acts of God; fire; flood; earthquake; lightning; unusually severe weather; material or facility shortages or unavailability not resulting from such party's failure to timely place orders therefor; lack of transportation; acts of any governmental authority; condemnation or the exercise of rights of eminent domain; war or civil disorder; or any other cause beyond the reasonable control of either party hereto. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. ARTICLE IX RE'LOCATION OF CABLE Section 9.1 The Parties shall have the right to relocate the IRU Cable at any time upon written notice to the other Party (a "Relocation"). The County shall be responsible for all costs associated with a Relocation of the IRU Cable in County Right -of -Way that is required by alteration of the County Right -of. -Way or by the request of a third party having authority to require the move. The County may seek and receive funding or reimbursement from a third party for a Relocation by the County and the City shall have no right to such funds or reimbursements and shall not pursue a claim against such funds. The City shall be responsible for all costs associated with a Relocation of the IRU Cable in City street Right -of -Way that is required by alteration .of the City Right -of -Way or by the request of a third partyhaving authority to require the move. The City may seek and receive funding or reimbursement from a third party for a Relocation by the City and the County shall have no right to such funds or reimbursements and shall not pursue a claim against such funds, Section 9.2 Either Party shall give the other Party at least sixty (60) days prior notice of any such Relocation, if possible. The relocating party shall have the right to determine the extent of, :the timing of, and the .methods to use for such Relocation; provided that any such relocated Cable, Fibers and Conduit shall be constructed and tested in accordance with industry standard specifications and requirements. In addition, the relocating party shall use reasonable efforts to ensure Relocation does not result in an adverse change to the operations, performance or connection points with the network of the other party, or end points of the applicable IRU Cable and Fibers. Section 9.3 Each party has the right to review the Relocation plans at least fourteen (14) days prior to commencement of any Relocation, Either party may submit comments on the Relocation plans, which comments shall not delay commencement of the Relocation. Both parties shall have the right to have a representative present at the time a Relocation occurs, ARTICLE X CONFIDENTIALITY The Parties agree and recognize that this Agreement as well as information and documents the Parties receive from one another during the tern of this Agreement may be considered public data under the Minnesota Government Data Practices Act, Minn. Stat. Ch 13. The Parties agree to comply with the Minnesota Government Data Practices Act as it applies to all data provided by the Parties under this .Agreement, and as it applies to all data created, collected, received, stored, used, maintained, or disseminated by any Patty under this Agreement, The civil remedies of Minn, Stat. § 13.08 apply to the release of the data referred to in this clause by any Party. If either Party receives a request to release data arising out of or related to the Facility or the use, operation or maintenance thereof, the Party receiving the request must immediately notify the other Party of the request. The Parties will promptly consult and discuss the best way to respond to the request. ARTICLE XI ABANDONMENT; TERMINATION; EFFECT OF TERMINATION Section 11.1 Should the City decide to abandon all or part of the IRU Fiber during the term of this Agreement, it may do so by providing sixty (60) days' notice informing County in writing of its intent to abandon, Such abandonment shall be at no cost to either Party except as set forth in this Article. If the City provides notice of intent to abandon, the County may notify the City prior to the expiration of the notice period of its intent to take ownership of the IRU 6 Fibers. If the County provides timely notice of such intent, the Parties will execute any agreements or documents .transferring legal title of the IRU Fibers to the County, at no cost to either Party. Section 11.2 This Agreement shall terminate upon the first to occur of the following: (a) Automatically upon the effective date abandonment by the City. (b) Upon written notice from either Patty to the other if a default occurs that is not cured within the time allowed hereunder or an event of default occurs under Section 11.2, Section 11.31f this IRU terminates under Section 11.2(a) neither Party shall have any liability to the other Party for the use of the IRU Fibers; If this Agreement terminates under Section 10.2(b), the non -defaulting party shall not have any liability to the defaulting. party, and the defaulting party shall be liable for such damages to the non -defaulting party as the non - defaulting party may establish in a court of law, except as limited by this Agreement. Upon termination of this Agreement for any reason, the Parties agree to promptly draft and execute any documents reasonably required to effect such termination. Section 11.4 Upon termination of this Agreement for any reason, the City shall cease to have any rights to the IRU Fibers or other rights under this Agreement or any obligations under this Agreement except for obligations under this Section and any other obligations that arose prior to such termination. Whenever title to the IRU Conduit vests in the County, the City shall, promptly after receiving a written request therefore from the County, deliver to the County an executed bill of sale, in form reasonably acceptable to the County, confirming the transfer of title. ARTICLE XII DEFAULT Section 12.1 Neither Party shall be in default under this IRU unless and until the other Party shall have given the defaulting party written notice of such default and the defaulting party shall have failed to cure the default within thirty (30) days after written receipt of such notice; provided, however, that where a default cannot be reasonably cured within the thirty (30) day period, if the defaulting party shall promptly proceed to cure the default with due diligence, the time for curing the default shall be extended for a period of up to ninety (90) days from the date of receipt of the default notice or until the default is cured, whichever is shorter. Section 12.2 Upon the failure by the defaulting party to timely cure any default after notice thereof from the non -defaulting party, .the non -defaulting party may take any action it determines, in its discretion, to be necessary to correct the default, and/or pursue any legal remedies it may have under applicable law or principles of equity relating to the breach. 7 ARTICLE XIII NOTICES Section 13.1 Unless otherwise provided herein, all notices and communications concerning this Agreement shall be in writing and addressed as follows: If to the City: City of Eagan Attn: IT Department 3830 Pilot Knob Road Eagan, MN 55122 With a copy to: City Attorney Dougherty, Molenda, Solfest, .Hills & Bauer P.A. 14985 Glazier Avenue, Suite 525 Apple Valley, MN 55124 If to County: Dakota County Attn: Information Technology Department Director 1590 Highway 55 Hasting, MN 55033 With a copy to: County Attorney's Office Attn: Civil Division 1560 Highway 55 Hastings, MN 55033 Section 13.2 Unless otherwise provided herein, notices shall be sent by certified U.S. Mail, return receipt requested, or by commercial overnight delivery service which provides acknowledgment of delivery, or by facsimile, and shall be deemed delivered: if sent by U.S. Mail, five (5) days after deposit; if sent by facsimile, or commercial overnight delivery service, upon verification of receipt. ARTICLE XIV LIMITATION ON CITY PROPERTY INTEREST This Agreement does not grant the County any property interest or estate in or lien upon the City's property, Optical Fiber Network or any components thereof or any.Intellectual Property, except for use of the IRU Fibers during the term of this Agreement. All liens, claims and charges of the County at any time shall not attach to any interest of the City or in any property owned by the City. ARTICLE XV GOVERNING LAW AND VENUE This Agreement shall be governed and construed in accordance with the laws of the State of Minnesota without regard to its conflict of laws provision. The Parties agree that any action arising out of this Agreement or with respect to the enforcement of this Agreement shall be venued in the Dakota County District Court, State of Minnesota. ARTICLE XVI INDEPENDENT CONTRACTOR The performance by the County and the City of all duties and obligations under this Agreement shall be as independent contractors and not as agents of the other Party, and no persons employed or utilized by a performing party shall be considered the employees or agents of the other. Neither Party shall have the authority to enter into any agreement purporting to bind the other without its specific written authorization. The Parties agree that this Agreement does not create a partnership between., or a joint venture of the County and the City. ARTICLE XVII NIISCELLANEOUS Section 17.1 The headings of the.Articles in this TRU are strictly for convenience and shall not in any be construed as amplifying or limiting any of the terms, provisions or conditions of this IRU. Section 17.2 In construction of this IRU, words used in the.singular shall include the plural and the plural, the singular, and "of is used in .the inclusive sense, in all cases where such meanings would be appropriate. Section 17.3 If any provision of this IRU is found by any court of competent jurisdiction to be invalid or unenforceable, then the parties hereby waive such provision to the extent that it is found to be invalid or unenforceable and to the extent that to do so would not deprive one of the parties of the substantial.benefit of its bargain. Such provision, to the extent allowable by law and the preceding sentence, shall not be voided or canceled, but instead will be modified by such court so that it becomes enforceable with all of the other terms of this IRU continuing in full force and effect. .Section 17.4 This IRU may be amended only by a written instrument executed by all Parties. Section 17.5 No failure to exercise and no delay in exercising, on the part of either Party hereto, any right, power or privilege hereunder shall operate as a waiver hereof, except as expressly provided herein. Any waiver by either Party -of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other or .subsequent breach and shall not be construed to be a modification of the terms of this Agreement unless and until agreed to in writing by both Parties. 9 Section 17.6 In the event of a conflict between the provisions of this IRU and those of the Exhibits, the .provisions of the Exhibits .shall prevail and the IRU will be deemed corrected accordingly. Section 17.7 This IRU has been fully negotiated between and jointly drafted by the parties. Section 17.8 All actions, activities, consents, approvals and other undertakings of the parties in this IRU shall be performed in a reasonable and timely manner. Section 17.9 Unless expressly defned.herein, words having well known technical or trade meanings shall be so construed. Section 17.10 This IRU is solely for the benefit of the parties hereto and their permitted successors and assigns. ARTICLE XVIII ENTIRE AGREEMENT This Agreement, any Exhibits referenced and attached hereto or to be attached hereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersede any and all prior negotiations, understandings and agreements with respect hereto, whether oral or written. IRU GRANTOR: COUNTY OF DAKOTA By: 41-- Its: okn spa v Approved as to Form. ./s/ Jay R. Stassen 7/14/2016 Assistant County Attorney Date IRU GRANTEE: CITY OF EAGAN By: Mike Maguire Its: Mayor Christina M. Scipioni Its: Clerk KS16-267 County -Eagan Dodd Road Fiber Project — City Owned Fiber IRU v2 10 Exhibit A Exhibit B Description of Fiber Segment Details, Ownership and Use Segment 1 This segment consists of an empty, existing 1 1/z" conduit for the fiber optic cable installation running from the Eagan City Hall to the intersection of 120th Street and Dodd Rd. Ownership of conduit remains with the City upon execution of this Agreement. The County will install 288 strands of fiber within the existing conduit. The County will own and maintain the fiber in Segment 1, The City will have use of the following 48 strands of fiber within the 288 strand.sheath: ® Orange tube ® Green tube Brown tube ® Slate tube Segment 2 This segment consists of an empty, existing 11/2" conduit for the fiber optic cable installation running from Fire Station #2 MER to the intersection of Westcott Rd. and Westcott Hills Dr: Ownership of the conduit remains with the City upon execution of this Agreement. The County Will install 96 strands of within the conduit. The County will own and maintain the fiber in Segment 2. The City will have use of the following 48 strands of fiber from the City Hall within the 288 strand and 96 strands sheaths: 288 sheath 96 sheath White tube Orange tube Red tube Green tube Yellow tube Brown tube Black tube Slate tube Segment 3 TI -ds segment consists of 144 strands of new fiber to be installed by the County from AccessEagan handhole #13 to AccessEagan handhole #123. The County will own and maintain the fiber in Segment 3, The City will have use of the following 48 strands of fiber within the 144 :strand sheath: ® Orange tube ® Green tube ® Brown tube • Slate tube Segment 4 This segment consists of 144 strands of the existing fiber optic cable owned and previously installed by the City from Fire Station #2 to the AccessEagan splice point #6 located at the intersection of Dodd Road and Yankee Doodle Rd. The City will own and .maintain the fiber in Segment 4, The County will have use of the following two strands of fiber within the 144 strand sheath: ® Pink Tube/Green Strand Pink Tube/Brown Strand Segment 5 This segment consists of four fiber sheaths installed by the City of Eagan along the .Segment 5 path. First cable is 24 single mode fiber from the equipment room in Sperry Tower to the splice point located at the intersection. of Towerview Rd. and Pilot Knob Rd. The second cable is 144 single mode fiber that was installed and owned by the City of Eagan along Pilot Knob Rd. to the AccessEagan,splice point #.1 (SP #1) located at the intersection of Pilot Knob and Central Pkwy. The third cable is 288 strands of fiber cable that was installed and owned by the City of Eagan from AccessEagan'SP #1 to SP #2 located at the intersection of Yankee Doodle Rd. and Lexington Ave, The fourth segment is 144 fiber cable that was installed and owned by the City of Eagan from AccessEagan SP #2 to Fire Station #2. The City will own and maintain the fiber in Segment 5. The County will have the use of the following two strands of fiber along Segment 5: ® First cable 24 fibers Blue Tube/Pink Strand and Blue Tube/Aqua:Strand 0 Second cable 144 fibers Blue Tube/Pink Strand and .Blue Tube/Aqua. Strand ® Third cable 288 fibers Orange Tube/Pink Strand and Orange Tube/Aqua Strand ® Fourth cable 144 fibers Aqua Tube/Pink Strand and Aqua Tube/Aqua Strand ® The County will cover all costs needed to interconnect these fiber sheaths if the splice connection has not already been made. The City will provide a pair of fiber to the County to use temporarily from Fire Station #2 to Eagan City Hall to interconnect County switches at Eagan City Hall and Fire Station #2. When all fiber construction for this Project has been completed as described in this JPA., the County will use its own fiber strands to make the interconnect between Eagan City Hall and Fire .Station #2. FIBER OPTIC CABLE INDEFEASIBLE RIGHT TO USE AGREEMENT BY AND BETWEEN CITY OF EAGAN AS GRANTOR mm DAKOTA COUNTY AS GRANTEE EXHIBITS Attachments A. Fiber Cable Diagram B. IRU Cable and Fibers by Segment FIBER OPTIC CABLE INDEFEASIBLE RIGIiT TO USE THIS FIBER OPTIC CABLE INDEFEASIBLE RIGHT TO. USE together with any attached exhibits (collectively the "Agreement") .made and entered into by and between City of Eagan, a Minnesota municipal corporation ("IRU Grantor", or "the City"), and Dakota County, acting by and through its Board of Commissioners ("IRU Grantee" or "the County"). The IRU Grantor and TRU Grantee may be referred to herein individually as a "Party" or collectively as the "Parties." BACKGROUND A. The County has developed a broadband fiber optic network backbone within Dakota County to facilitate electronic communications between government owned facilities, which includes fiber optic cable, referred to herein as the "County IRU Conduit" (hereinafter defined). B. The City has constructed a fiber optic communications system throughout the City of Eagan's central business districts, the expansion of wluch benefits the residents and businesses in the City and the County. C. In conjunction with this Fiber Optic Cable Indefeasible Right To Use Agreement, City of Eagan as IRU Grantor desires to authorize Dakota County as IRU Grantee to use specific Fibers within certain Fiber Optic Cable segments on the. terms and conditions set forth below. D. This Agreement is entered into pursuant to Minn. Stat. § 471.59. DEFINITIONS The following terms are used in this IRU: A. "Effective Date" is the date upon which all Parties have executed this Agreement. B. "Fiber" means a glass strand or strands which is/are used to transmit a communication signal along the glass strand in the form of pulses of light. C. "Fiber Optic Cable" or "Cable" means a collection of fibers with a protective outer covering. D. "IRU Cable" means a Cable containing one or more Fibers, constructed and owned by the County, described in Exhibit B, in which the City has an IRU pursuant to the terms of this Agreement. E. "IRU Fibers" means the specific unused Fiber described in Exhibit B, an IRU for which is granted to the Count in the IRU Cable. F. "Indefeasible Right of Use" or "IRU" means an indefeasible right to use the IRU Fibers, .provided, however, that granting of such TRU does not convey legal title to the IRU Fibers. G. "Optical Splice Point" means a point where the County's Cable is connected to the City's Cable within a splice enclosure. H. "Relocation" means any physical movement of fiber optic cable or conduit required due to reconstruction, modification, change in grade, expansion or relocation of a County road or highway, or a city street. I. "County Right of Way" means the real property, including all fee simple, easements, access rights, rights of use and other interests, owned and/or operated by the County, devoted to County road or highway purposes. In consideration of their mutual promises, the parties expressly agree as follows: ARTICLE+ I LICENSES Section 1.1 :IRU Grant. The City desires to obtain an IRU in the IRU Cable further described in Exhibits A and B to this Agreement, which is incorporated into this Agreement by reference. In consideration of the promises by the County in this Agreement and the Agreement entered into by the Parties for this fiber optic cable project, the County giants an IRU to the City in the IRU Cable identified in Exhibits A and B hereto. The County shall deliver to the City the right to use the IRU Fibers, including, but not limited to, handholes, splice enclosures, and related equipment but excluding any electronic or optronic equipment at termination points located in County facilities. Prior to use, the County shall coordinate with City the use of any handholes and splice enclosures required for the IRU Fibers. The City shall be entitled to use the IRU Fibers for any lawful purposes subject to (i) agreeing to be bound by all laws, regulations and any requirements of the County regarding access to County rights of way, and (ii) otherwise complying with the terms and conditions of this IRU. Section 1.2 License to County's Facilities. Subject to the terms and conditions of this .Agreement, County hereby grants to the City a license to access and use the IRU Fibers within the Fiber Optic Cable segments described below during the term of this Agreement. Exclusive use by the City of 48 fiber strands within the 288 fiber cable installed by the County from the Eagan City Hall to the intersection of 120th Street and Dodd Road. The specific strands subject to this IRU segment are identified in Attachment B. Exclusive use by the City of 48 fiber strands within the 96 fiber cable installed by the County from the intersection of Westcott Road and Westcott Hills Drive to Eagan Fire Station #2. The specific strands subject to this IRU segment are identified in Attachment B. Exclusive use by the City of 48 fiber strands within the 144 fiber cable installed by the County fron-i AccessEagan handhole.#13 to AccessEagan handhole #123. The specific strands subject to this TRU segment are identified in Attachment B. Section 1.3 Use of County Property. Notwithstanding anything contained to the contrary in this Agreement, the Parties acknowledge and agree that nothing contained in this Agreement shall operate to limit, interfere with, or otherwise adversely affect each Party's right to manage, control, construct, relocate, maintain, replace and expand their fiber optic network equipment and infrastructure that either may deem necessary or desirable in its sole discretion, subject only to the IRU and the City's license to the IRU Conduit. ARTICLE II EFFECTIVE DATE AND TERM The City shall be entitled to use the IRU Fibers granted by the County upon the Effective Date. The term of this Agreement shall be for twenty (20) years unless terminated in writing by the Parties or one of the events set forth in Section 10.2 of this Agreement occurs, whichever is first. ARTICLE III LICENSE FEES No license fee will be charged to the City for the use of the IRU Cable or the IRU Fibers. ARTICLE IV MAINTENANCE AND REPAIR Section 4.1 Installation. The City shall be fully responsible for :install ng any Cable it shall own and all equipment necessary to connect the City's Cable to its fiber optic network. The City must notify the County prior to installing the Cable and prior to accessing existing handholes owned by the County. Section 4.2 Maintenance and Repair. The City shall be fully responsible for maintaining and repairing the Cable it owns and all of its equipment used to connect the Cable to the City's fiber optic networkandassociated equipment. ARTICLE V SPLICING The City shall be responsible for the cost of the initial splicing of the City's Fibers at any Optical Splice Points and any additional splicing equipment that it requires to connect fibers to its optical fiber network. The City must obtain the County's written consent prior to splicing any County owned Cable. ARTICLE VI REPRESENTATIONS AND WARRANTIES Section 6.1 The City warrants that its use of the IRU Fibers shall comply with all applicable governmental codes, ordinances, laws, rules, regulations and/or restrictions. Section 6.2 The County represents and warrants that it has the right to grant this IRU in the IRU Fibers. Section 6.3 The City's sole and exclusive remedy and the County's sole and exclusive maximum liability under this Agreement for failure of the IRU Fibers shall be, at the sole option of the County, to repair or replace any defective portion of the IRU Fibers, provided that the County is promptly notified in writing upon discovery by the City that any portion of the IRU Fibers has failed to conform with the terms of this IRU, such writing to include an explanation of alleged failures. Section 6.4 Neither party's warranties extend to defects caused by acts of God, accident, fire or other hazard, or by any misuse, neglect, alterations, storage, attempts to repair, or use of other supplies not.meeting specifications. THE FOREGOING WARRANTIES AND REMEDIES CONSTITUTE THE ONLY WARRANTIES WITH RESPECT TO THE IRU FIBERS.. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, .STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY SHALL IN ANY EVENT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER FOR ANY REASON. ARTICLE VII LIABILITY; INDEMNIFICATION Section 7.1 Neither City nor County shall be liable to the other for any indirect, special, punitive or consequential damages arising under this Agreement or from any breach or partial breach of the provisions of this Agreement or .arising out of any .act or omission of either Party hereto, its directors, officers, employees, servants, contractors and/or agents. Section 7.2 The County assumes, releases and agrees to indemnify, defend, protect and save City (including its officers, agents, representatives and employees) harmless from and against any claim, damage, loss, liability, injury, cost and expense (including reasonable attorney's fees and expenses) in connection with any loss or damage to any person or property arising out of or resulting in any way from the acts or omissions to act, negligence or willful misconduct of the County, its directors, officers, employees, servants, contractors and/or agents in connection with the exercise of its rights and obligations under the terms of this IRU. The City assumes, releases and agrees to indemnify, defend, protect and save County (including . its officers, agents, representatives and employees) harmless from and against any claire, damage, loss, liability, injury, cost and expense (including. reasonable attorney's fees and expenses) in connection with any loss or damage to any person or property arising out of or resulting in any way from the acts or omissions to act, negligence or willful misconduct of the City, its directors, officers, employees, servants, contractors and/or agents in connection with the exercise of its rights and obligations under the terms of this IRU. Section 7.3 Nothing contained herein shall operate as a limitation on the right of either Party.hereto to bring an action for damages, including consequential damages, against any third party based on any acts or omissions of such thud party as such acts or omissions may affect the construction, operation or use of the Fiber, Cable, or IRU Fibers; provided, however, that (i) the Parties to this Agreement shall not have any claim against the other Party for indirect, incidental, special, punitive or consequential damages (including, but not limited to, any claim from any customer for loss of set -vices), and (ii) each Party hereto shall assign such rights or claims, execute such documents and do whatever else may be reasonably necessary to enable the injured party to pursue any such action against such third party. ARTICLE VIII FORCE MAJE URE The obligations of the parties hereto are subject to force majeure and neither party shall be in default under this Agreement if any failure or delay in performance is caused by strike or other labor dispute; accidents; acts of God; fire; flood; earthquake; lightning; unusually severe weather; material or facility shortages or unavailability not resulting from such party's failure to timely place orders therefor; lack of transportation; acts of any governmental authority; condemnation or the exercise of rights of eminent domain; war or civil disorder; or any other cause beyond the reasonable control of either party hereto. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. ARTICLE IX RE'LOCATION OF CABLE Section 9.1 The Parties shall have the right to relocate the IRU Cable at any time upon written notice to the other Party (a "Relocation"). The County shall be responsible for all costs associated with a Relocation of the IRU Cable in County Right -of --Way that is required by alteration of the County Right -of -Way or by the request of a third party having authority to require the move. The County may seek and receive funding or reimbursement from a third party for a Relocation by the County and the City shall have no right to such funds or reimbursements and shall not pursue a claim against such funds. The City shall be responsible for all costs associated with a Relocation of the IRU Cable in City street Right -of -Way that is required by alteration of the City Right -of -Way or by the request of a third party having authority to require the move. The City may seek and receive funding or reimbursement from a third party for a Relocation by the City and the County shall have no right to such funds or -reimbursements and shall not pursue a claim against such funds. 61 Section 9.2 Either Party shall give the other Party at least sixty (60) days prior notice of any such Relocation, if possible. The relocating party shall have the right to determine the extent of, the timing of, and the methods to use for such Relocation; provided that any such relocated Cable, Fibers and Conduit shall be constructed and tested in accordance with industry standard specifications and requirements. In addition, the relocating party shall use reasonable efforts to ensure Relocation does not result in an adverse change to the operations, performance or connection points with the network of the other party, or end points of the applicable IRU Cable and Fibers. Section 9.3 Each party has the right to review the Relocation plans at least fourteen (14) days prior to commencement of any Relocation. Either party may submit comments on the Relocation plans, which comments shall not delay commencement of the Relocation, Both parties shall have the right to have a representative present at the tune a Relocation occurs. ARTICLE X CONFIDENTIALITY The Parties agree and recognize that this Agreement as well as information and documents the Parties receive from one another during the term of this Agreement may be considered public data under the Minnesota Government Data Practices Act, Minn. Stat. Ch 13, The Parties agree to comply with the Minnesota Government Data Practices Act as it applies to all data provided by the Parties under this Agreement, and as it applies to all data created, collected, received, stored, used, maintained, or disseminated by any Party under this Agreement. The civil remedies of Minn. Stat. § 13.08 apply to the release of the data referred to in this clause by any Party. If either Party receives a request to release data arising out of or related to the Facility or the use, operation or maintenance thereof, the Party receiving the request must immediately notify the other Party of the request. The Parties will promptly consult and discuss the best way to respond to the request. ARTICLE XI ABANDONMENT; TERMINATION; EFFECT OF TERMINATION Section 11.1 Should the County decide to :abandon all or part of the IRU Conduit during the term of this Agreement, it may do so by providing sixty (60) days' notice informing City in writing of its intent to abandon. Such abandonment shall be at no cost to either Party except as set forth in this Article. If the County provides notice of intent to abandon, the City may notify the County prior to the expiration of the notice period of its intent to take ownership of the IRU Fibers. If the County provides timely notice of such intent, the Parties will execute any agreements or documents transferring legal title of the IRU Fibers to the City, at no cost to either Party. Section 11.2 This Agreement shall terminate upon the first to occur of the following: (a) Automatically upon the effective date abandonment by the County. (b) Upon written notice from either Party to the other if a default occurs that is not cured within the time allowed hereunder or an event of default occurs under Section 11,2, Section 11.3 If this IRU terminates under Section 11.2(a) neither Party shall"have any liability to the other.P arty for the use of the IRU Fibers; If this Agreement terminates under Section 10.2(b), the non -defaulting party shall not have any liability to the defaulting party, and the defaulting party shall be liable for such damages to the non -defaulting party as the non - defaulting party may establish in a court of law, except as limited by this Agreement. Upon termination of this Agreement for any reason, the Parties agree to promptly draft and execute any documents reasonably required to effect such tennination. Section 11.4 Upon termination of this Agreement for any reason, the City shall cease to have any rights to the IRU Fibers or other rights under this Agreement or any obligations under this Agreement except for obligations under this Section and any other obligations that arose prior to such termination. Whenever title to the IRU Conduit vests in the City, the County shall, promptly after receiving a written request therefore from the City, deliver to the City an executed bill of sale, in form reasonably acceptable to the City, confirming the transfer of title, ARTICLE XII DEFAULT Section 12,1 Neither Party shall be in default under this TRU unless and until the other Party shall have given the defaulting party written notice of such default and the defaulting party shall have failed to cure the default within thirty (30) days after written receipt of such notice; provided, however, that where a default cannot be reasonably cured within the thirty (30) :day period, if the defaulting party shall promptly proceed to cure the default with due diligence, the time for curing the default shall be extended for a period of up to ninety (90) days from the date of receipt of the default notice or until the default is cured, whichever is shorter. Section 12.2 Upon the failure by :the defaulting party to timely cure any default after notice thereof from the non -defaulting party, the non -defaulting party may take any action it determines, in its discretion, to be necessary to correct the default, and/or pursue any legal remedies it may have under applicable law or principles of equity relating to the breach, ARTICLE XIII NOTICES Section 13.1 Unless otherwise provided herein, all notices and communications concerning this Agreement.shall be in writing and addressed as follows; If to the City; City of Eagan Attn: IT Department 3830 Pilot Knob Road Eagan, MN 55122 With a copy to: City Attorney Dougherty, Molenda, Solfest, Hills & Bauer P.A. 149.85 Glazier Avenue, Suite 525 Apple Valley, MN 55124 If to County: Dakota County Attn: Information Technology Department Director 1590 Highway 55 Hasting, MN 55033 With a copy to: County Attorney's Office Attn: Civil Division 1.560 Highway 55 Hastings, MN 55033 Section 13.2 Unless otherwise provided herein, notices shall be sent by certified U.S. Mail, return receipt requested, or by commercial overnight delivery service which provides acknowledgment .of delivery, or by facsimile, and shall be deemed delivered: if sent by U.S. Mail, five (5) days after deposit; if sent by facsimile, or commercial overnight delivery service, upon verification of receipt. ARTICLE XIV LINIITATION ON CITY PROPERTY INTEREST This Agreement does not grant the City any property interest or estate in or lien upon the County's property, Optical Fiber Network or any components thereof or any Intellectual Property, except for use of the IRU Fibers during the term of this Agreement. All liens, claims and charges of .the City at any time shall not attach to any interest of the County or in any property owned by the County. ARTICLE XV GOVERNING LAW AND VENUE This Agreement shall be governed and construed in :accordance with the laws of the State of Minnesota without regard to its .conflict of laws :provision. The Parties agree that any action arising out of this Agreement or with respect to the enforcement of this Agreement shall be venued in the Dakota County District Court, State of Minnesota. ARTICLE XVI INDEPENDENT CONTRACTOR The performance by the County and the City of all duties and obligations under this Agreement shall be as independent contractors and not as agents of the other Party, and no persons employed or utilized by a performing party shall be considered the employees or agents of the other. Neither Party shall have the authority to enter into any agreement purporting to bind the other without its specific written authorization. The Parties agree that this Agreement does not create a partnership between, or a joint venture of the County and the City. ARTICLE XVII AHSCELLANEOUS Section 17.1 The headings of the Articles in this IRU are strictly for convenience and shall not in any be construed as amplifying or limiting any of the terms, provisions or conditions of this IRU. Section 17.2 In construction of this IRU, words used in the singular shall include the plural and the plural, the singular, and "of' is used in the inclusive sense, in all cases where such meanings would be appropriate. Section 17.3 If any provision of this IRU is found by any court of competent jurisdiction to be invalid or unenforceable, then the parties hereby waive such provision to the extent that it is found to be invalid or unenforceable and to the extent that to do so would not deprive one of the parties of the: substantial benefit of its bargain. Such provision, to the extent allowable by law and the preceding sentence, shall not be voided or canceled, but instead will be modified by such court so that it becomes enforceable with all of the other terms of this IRU continuing in full force and effect. Section 17.4 This IRU may be amended only by a written instrument executed by all Parties. Section 17.5 No failure to exercise and no delay in exercising, on the pari of either Party hereto, any right, power or privilege hereunder shall operate as a waiver hereof, except as expressly provided herein. Any waiver by either Party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be construed to be a modification of the terms of this Agreement unless and until agreed to in writing by both Parties. Section 17.6 In the event of a conflict between the provisions of this IRU and those of the Exhibits, the provisions of the Exhibits shall prevail and the IRU will be deemed corrected accordingly. Section 17.7 This IRU has been fully negotiated between and jointly drafted by the parties. Section 17.8 All actions, activities, consents, approvals and other undertakings of the parties in this IRU shall be perforrned in a reasonable and timely manner. Section 179 Unless expressly defined herein, words having well known technical or trade meanings shall be so construed. W] Section 17.10 This IRU is solely for the benefit of the parties hereto and their permitted successors and assigns. ARTICLE XVIII ENTIRE AGREEMENT This Agreement, any Exhibits referenced and attached hereto or to be attache&hereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersede any and all prior negotiations, understandings and agreements with respect hereto, whether oral or written. IRU GRANTOR: COUNTY OF DAKOTA P By: _ Its: a Approved as to Form /s1 Jay R Stassen 7/14/2016 Assistant County Attorney Date IRU GRANTEE: CITY OF EAGAN By: Mike Maguire Its: Mayor By: Christina M. Scipioni Its: Clerk KS16-260 County -Eagan Dodd Road Fiber Project—County Owned Fiber IRU v1 10 Exhibit A Exhibit B Description of Fiber Segment Details, Ownership and Use Segment 1 1 This segment consists of an empty, existing 11/2" conduit for the fiber optic cable installation running from t-ke Eagan City Hall to the intersection of 120th Street and Dodd Rd. Ownership of conduit remains with the City upon execution of this Agreement. The County will install 288 strands of fiber within the existing conduit, The County will own and maintain the fiber in Segment 1. The City will have use of the following 48 strands of fiber within the 288 strand sheath: ® Orange tribe ® Green tube ® Brown tube • Slate tube Segment 2 This segment consists of an empty, existing 11/2" conduit for the fiber optic cable installation running from Fire Station #2 MER to the intersection of Westcott Rd. and Westcott Hills Dr. Ownership of the conduit remains with the City upon execution of this Agreement. The County will install 96 strands of within the conduit. The County will own and maintain the fiber in Segment 2. The City will have use of the following 48 strands of fiber from the City Hall within the 288 strand and 96 strands sheaths: 288 sheath 96 sheath White tube Orange e tube Red tube Green tube Yellow tube Brown tube Black tube Slate tube Segment 3 This segment consists of 144 strands of .new fiber to be installed by the County from AccessEagan handhole #13 to AccessEagan handhole #123. The County will own and maintain the fiber in Segment 3. The City will have use of the following 48 strands of fiber within the 144 strand sheath: ® Orange tube • Green tube • Brown tube ® Slate tube Segment 4 This segment consists of 144 strands of the existing fiber optic cable owned and previously installed by the City from Fire Station #2 to the AccessEagan splice point #6 located at the intersection of Dodd Road and Yankee Doodle Rd. The City will own and maintain the fiber in Segment 4, The County will have use of the following two strands of fiber within the 144 strand sheath: ® Pink Tube/Green Strand • Pink Tube/Brown Strand Segment 5 This segment consists of four fiber sheaths installed by the City of Eagan along the Segment 5 path. First cable is 24 single mode fiber from the equipment room in Sperry Tower to the splice point located at the intersection of Towerview Rd. and Pilot Knob Rd. The second cable is 144 single mode fiber that was installed and owned by the City of Eagan along Pilot Knob Rd. to the .AccessEagan splice point #1 (SP #1) located at the intersection of.Pilot Knob and Central Pkwy. The third cable is 288 strands of fiber cable that was installed and owned by the City of Eagan from AccessEagan SP #1 to SP #2 located at the intersection of Yankee Doodle Rd. and Lexington Ave. The fourth segment is 144 fiber cable that was installed and owned by the City of Eagan from AccessEagan SP #2 to Fire Station #2. The City will own and maintain the fiber in Segment 5, The County will have the use of the following two strands of fiber along Segment 5: First cable 24 fibers Blue Tube/Pink _Strand and Blue Tube/Aqua Strand ® Second cable 144 fibers .Blue Tube/Pu1k Strand and Blue Tube/Aqua Strand ® Third cable 288 fibers Orange Tube./Pink Strand and Orange Tube/Aqua Strand ® Fourth cable 144 fibers Aqua Tube/Pink Strand and Aqua Tribe/Aqua Strand ® The County will cover all costs needed to interconnect these fiber sheaths if the splice connection has not already been made. The City will provide a pair of fiber to the County to use temporarily from Fire Station #2 to Eagan City Hall to interconnect County.switches at Eagan City Hall and Fire Station #2. When all fiber construction for this Project has been completed as described in this Agreement, the County will use its own fiber strands to make the interconnect between Eagan City Hall and Fire Station #2. FIBER OPTIC CONDUIT INDEFEASIBLE RIGHT TO USE AGREEMENT BY AND BETWEEN CITY OF EAGAN AS GRANTOR AND DAKOTA COUNTY AS GRANTEE EXHIBITS Exhibits A, IRU Conduit Location FIBER OPTIC CONDUIT INDEFEASIBLE RIGHT TO USE THIS FIBER OPTIC CONDUIT INDEFEASIBLE RIGHT TO USE AGREEMENT together with any attached exhibits (collectively the "Agreement") is entered into by and between Dakota County, acting by and through its Board of Commissioners ("IRU Grantee", or "the County"), and City of Eagan, a Minnesota municipal corporation ("IRU Grantor" or "the City"). The IRU Grantee and IRU Grantor may be referred to herein individually as a "Party" or collectively as the "Parties." BACKGROUND A. The City has constructed a fiber optic communications system throughout the City of Eagan's central business districts, which includes an empty and used fiber optic conduit, referred to herein as the "IRU Conduit" (hereinafter defined), B. The County is developing a broadband fiber optic network backbone within Dakota County to facilitate electronic communications between government owned facilities and infrastructure. C. To further the development of the fiber optic network backbone, the County requires use of the City's IRU Conduit referenced herein. D. This Agreement is entered into pursuant to Minn. Stat. § 471.59. DEFINITIONS The following terms are used in this Agreement: A. "Effective Date" is the date upon which all Parties have executed this Agreement. B. "Fiber" means a glass strand or strands which is/are used to transmit•a communication signal along the glass strand in the form of pulses of light. C. "Fiber Optic Cable" or "Cable" means a collection of fibers with a protective outer covering. D. "Indefeasible Right of Use" or "IRU" means an indefeasible right to use the IRU Conduit, provided, however, that granting of such IRU does not convey legal title to the IRU Conduit. E. "IRU Conduit" means the empty and unused fiber optic conduit that is subject to this Agreement and described in Segments 1 and 2 in Exhibit B. F. "Optical Splice Point" means a point where the County's Cable is connected to the City's Cable within a splice enclosure. G. "County Right of Way" means the real property, including all fee simple, easements, access rights, rights of use and other interests, owned and/or operated by the County, devoted to County highway purposes. H. "County's Facilities" refers to any optic or electronic equipment to be installed by the County within or connected to the IRU Conduit. In consideration of their mutual promises, the Parties expressly agree as follows; ARTICLE I LICENSES Section 1.1 IRU Grant. The County desires to obtain an IRU in the IRU Conduit further described in Exhibit A to this Agreement, which is incorporated into this Agreement by reference. In consideration of the promises by the County in this Agreement, the City grants an IRU to the County in the IRU Conduit and associated termination hardware identified in Exhibit A hereto. The City shall deliver to the County the right to use its IRU Conduit, including, but not limited to, handholes, splice enclosures, and related equipment but excluding any electronic or optronic equipment. Prior to use, the County shall coordinate with City the handholes and splice enclosures that will be used for this project. The County shall be entitled to use the IRU Conduit for any lawful purposes subject to (i) agreeing to be bound by all laws and regulations and (ii) otherwise complying with the terms and conditions of this Agreement. Section 1.2 License to City's Facilities. Subject to the terms and conditions of this Agreement, City hereby grants to the County a license to access and use the IRU Conduit for the installation of 288 strands of optical fiber and the operation, maintenance and repair of the County's installed fibers thereafter. The specific conduit subject to this TRU is identified in Exhibit A. Section 1.3 Use of City Property. Notwithstanding anything to the contrary in this Agreement., the Parties acknowledge and agree that nothing contained in this Agreoment shall operate to limit, interfere with, or otherwise adversely affect each Party's right to manage, control, construct, relocate, maintain, replace and expand their fiber optic network equipment and infrastructure that either may deem necessary or desirable in its sole discretion, subject only to this TRU and the County's license to the IRU'Conduit. ARTICLE II EFFECTIVEE DATE AND TERM' The County shall be entitled to use the IRU Conduit granted by the City upon the Effective Date. The term of this Agreement shall be for twenty (20) years unless terminated in writing by the Parties or one of the events set forth in Section 10.2 of this Agreement occurs, whichever is first. 2 ARTICLE III LICENSE FEES No license fee will be charged to the County for the installation of its Cable or the use or access to the IRU Conduit. ARTICLE IV INSTALLATION, MAINTENANCE AND REPAIR Section 4.1 Installation. The County shall be fully responsible for installing the Cable and all equipment necessary to connect the County's Cable to its fiber optic network. The County must seek and obtain written approval from the City prior to installing the Cable and prior to accessing existing handholes owned by the City. Section 4.2 Maintenance and Repair. The County shall be fully responsible for maintaining and repairing the Cable installed in the IRU Conduit and all of its equipment used to connect the County's Cable to network equipment or splice enclosures. Section 4.3 Exclusion from Cost Sharing. Any work completed by the County relating to or arising out of this Agreement shall :not be subject to and is expressly excluded from any cost sharing agreements or provisions between the Parties. The County shall be responsible for all costs associated with its installation, maintenance and repair of the Cable and the equipment set forth in Sections 4.1 and 4:2 of this Agreement. ARTICLE V SPLICING The County shall be responsible for the cost of the initial splicing of the County's Fibers at the Optical Splice Points and any additional splicing equipment that it requests or requires. The County must obtain the City's written consent prior to splicing any City owned Cable. ARTICLE VI REPRESENTATIONS AND WARRANTIES Section 6.1 County warrants that its respective .use of the IRU Conduit shall comply with all applicable governmental codes, ordinances, laws, rules, regulations and/or restrictions. Section 6.2 The City represents and warrants that it has the right to grant this IRU in the IRU Conduit. ARTICLE VII LIABILITY; INDEMNIFICATION Section 7.1 Neither City nor County shall be liable to the other for any indirect, special, punitive or consequential damages arising under this Agreement or from any breach or partial breach of the provisions of this Agreement or arising out of any art or omission of either Party hereto, its directors, officers, employees, servants, contractors and/or agents. Section 7.2 The County assumes, releases and agrees to indemnify; defend, protect and save City (including its officers, agents, representatives and employees) harmless from and against any claim, damage, loss, liability, injury, cost and expense (including reasonable attorney's fees and expenses) in connection with any loss or damage to any person or property arising out of or resulting in any way from the acts or omissions to act, negligence or willful misconduct of the County, its directors, officers, employees, servants, contractors and/or agents in connection with the exercise of its rights and obligations under the terms of this Agreement. The City assumes, releases and agrees to indemnify, defend, protect and save County (including its officers, agents, representatives and employees) harmless from and against any claim, damage, loss, liability, injury, cost and expense (including reasonable attorney's fees and expenses) in connection with any loss or damage to any person or property arising out of or resulting in any way from the acts or omissions to act, negligence or willful misconduct of the City, its directors, officers, employees, servants, contractors and/or agents in connection with the exercise of its rights and obligations under the terms of this Agreement. Section 7.3 Nothing contained herein shall operate as a limitation on the right of either Party hereto to bring an action for damages, including consequential damages, against any third party based on any acts or omissions of such third party as such acts or omissions may affect the construction, operation or use of the Fiber, Cable, or IRU Conduit.; provided, however, that (i) the Parties to this Agreement shall not :have any claim against the other Party for indirect, incidental, special, punitive or consequential damages (including, but not limited to, any claim from any customer for loss of services), and (ii) :each Party hereto shall assign such rights or claims, execute such documents and do whatever else may be reasonably necessary to enable the injured party to pursue any such action against such third party. ARTICLE VIII FORCE MAJEURE The obligations of the Parties hereto are subject to force majeure and neither Party.shall be in default under this Agreement if any failure or delay -in performance is caused by strike or other.labor dispute; accidents; acts of God; fire; flood; earthquake; lightning; unusually severe weather; material or facility shortages or unavailability not resulting from such Party's failure to timely place orders therefor; lack of transportation; acts of any governmental authority; condemnation or the exercise of rights of enunent domain; war or civil disorder; or any other cause beyond the reasonable control of either Party hereto. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. 11 ARTICLE IX CONFIDENTIALITY The Parties agree and recognize that this Agreement as well as information and documents the Parties receive from one another during the term of this Agreement may be considered public data under the Minnesota Government Data Practices Act, Minn. Stat. Ch 13. The Parties agree to comply with the Minnesota Government Data Practices Act as it applies to all data provided by the Parties under :this Agreement, and as it applies to all data created, collected, received., stored, used, maintained, or disseminated by any Party under this Agreement. The civil remedies of Minn. Stat. § 13.08 apply to the release of the data referred to in this clause by any Party, If either Party receives a request to release data arising out of or related to the IRU Conduit or the use, operation or maintenance thereof, the Pauly receiving the request must immediately notify the other Party of the request. The Parties will promptly consult and discuss the best way to respond to the request. ARTICLE X ABANDONMENT; TERMINATION; EFFECT OF TERMINATION Section 10.1 Should the City decide to abandon all or part of the IRU Conduit, it may do so by providing sixty (60) days' notice informing County in writing of its intent to abandon. .Such abandonment shall be at no cost to either Party except as set .forth in this Article. If the City provides notice of intent to abandon, the County may notify the City prior to the expiration of the notice period of its intent to take ownership of the Conduit. If the County provides timely notice of such intent, the City and County will execute any agreements or documents transferring legal title of the Conduit to the County, at no cost to either Party. Section 10.2 This Agreement shall terminate upon the first to occur of the following: (a) Automatically upon the effective date abandoninent by the City. (b) Uponn written notice from either Party to the other if a default occurs that is not cured within the time allowed hereunder or an event of default occurs under Section 11.2. Section 10..3 If this Agreement terminates under Section 10.2(a) neither Party shall have any liability to the other Party for the use of the IRU Conduit; If this Agreement terminates under Section 10.2(b), the non -defaulting party shall not have any liability to the defaulting party, and the defaulting panty shall be liable for such damages to the non -defaulting party as the non - defaulting party may establish in a court of law. Upon termination of this Agreement for any reason, the Parties agree to promptly draft and execute any documents reasonably required to effect such termination. Section 10.4 Upon termination of this Agreement for any reason, the County shall cease to have any rights to the IRU Conduit or other rights under this Agreement or any obligations under this Agreement except for obligations under this Section and any other obligations that arose prior to such termination. Whenever title to the IRU Conduit vests in the County, the City shall, promptly after receiving a written request therefore from the County, deliver to the County .5 an executed bill of sale, in form reasonably acceptable to the County, confirming the transfer of title, but no such bill of sale shall be necessary to vest title in the County. ARTICLE XI DEFAULT Section 11.1 Neither Party shall be in default under this Agreement unless and until the other Party shall have given the defaulting party written notice of such default and the defaulting party shall have failed to cure the default within thirty (30) days after written receipt .of such notice; provided, however, that where a default cannot be reasonably cured within the .thirty (3 0) day period, if the defaulting party shall promptly proceed to cure the default with due diligence, the time for curing the default shall be extended for a period of up to ninety (90) days from the date of receipt of the default notice or until the default is cured, whichever is shorter. Section 11.2 Upon the failure by the defaulting party to timely cure any default after notice thereof from the non -defaulting party, the non -defaulting .party may take any action it determines, :in its discretion, to be necessary to correct the default, and/or pursue any legal remedies it may have under applicable law or principles of equity relating to the breach. ARTICLE XII NOTICES Section 12.1 Unless otherwise provided herein, all notices and cormnunications concerning this Agreement shall be in writing and addressed as follows: If to the City: City of Eagan Attn: IT Department 3830 Pilot Knob Road Eagan, MN 55122 With a copy to: City Attorney Dougherty, Molenda, Solfest, Hills & Bauer P.A. 14985 Glazier Avenue, Suite 525 Apple Valley, MN 55124 If to County: Dakota County Attn: Information Technology Department Director 1590 Highway 55 Hasting, MN 55033 With a copy to: County Attorney's Office Attn: Civil Division 1560 Highway 55 Hastings, MN 55033 0 Section 12.2 Unless otherwise provided herein, notices shall be sent by certified U.S. Mail, return receipt requested, or by commercial overnight delivery service which provides acknowledgment of delivery, or by facsimile, and shall be deemed delivered: if sent .by U.S. Mail, five {5) days after deposit; if sent by facsimile, or commercial overnight delivery service, upon verification of receipt. ARTICLE XIII ASSIGNMENT,, SUCCESSION Section 13.1 Except as provided in this Article, neither Party shall assign this Agreement to any other person or entity without the prior written consent of the other Party. Section 13.2 Subject to the provisions of this Article, each of the Parties' respective rights and obligations hereunder shall be binding upon and shall inure to the benefit of the Parties hereto and each of their respective permitted successors and assigns and lien holders. ARTICLE XIV GOVERNING LAW AND VENUE This Agreement shall be governed and construed in accordance with the laws of the State of Minnesota without regard to its conflict of laws provision. The Parties agree that any action arising out of this Agreement or with respect to the enforcement .of this Agreement shall be venued in the Dakota County District Court, State of Minnesota. ARTICLE XV INDEPENDENT CONTRACTOR The performance by the County and the City of all duties and obligations under this Agreement shall be as independent contractors and not as agents of the other.Party,, and no persons employed or utilized by either Party shall .be considered the employees or agents of the other. Neither Party shall have the authority to enter into any agreement purporting to bind the other without its specific written authorization. The Parties agree that this Agreement does not create a partnership between, or a joint venture of the County and the City. ARTICLE XVI MISCELLANEOUS Section 16.1 The headings of the Articles in this Agreement are strictly for convenience and shall not in any way be construed as amplifying or limiting any of the terns., provisions or conditions of this Agreement. Section 16.21n construing this Agreement, words used in the singular shall include the plural and the plural, the singular, and "of' is used in the inclusive sense, in all cases where such meanings would be appropriate. Section 16.3 If any provision of this Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, then the Parties hereby waive such provision to the extent that it is found to be invalid or unenforceable and to the extent that to do so would not deprive one of the Parties of the substantial benefit of its bargain. Such provision, to the extent allowable by law and the preceding sentence, shall not be voided or canceled, but instead will be modified by -such court so that it becomes enforceable with all of the other terms of this Agreement continuing in fall force and effect. Section 16.4 This IRU may .be amended only by a written instrument executed by all Parties. Section 16.5 No failure to exercise and no delay in exercising, on the part of either Party hereto, any right, power or privilege hereunder shall operate as a waiver hereof, except as expressly provided herein. Any waiver by either Party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be construed to be a modification of the terms of this Agreement unless and until agreed to in writing by both Parties. Section 16.6 In the event of a conflict between the provisions of this Agreement and those of the Exhibits, the provisions of the Exhibits shall prevail and the Agreement will be deemed corrected accordingly. Sectionl6.7 This Agreement has been fully negotiated between and jointly drafted by the Parties. Section 16.8 All actions, activities, consents, approvals and other undertakings of the Parties in this Agreement shall be performed in a .reasonable and timely manner. Section 16.9 Unless expressly defined herein, words having well known technical or trade meanings shall be so constiued. Section 16.10 This Agreement is solely for the benefit of the Parties hereto and their permitted successors and assigns. ARTICLE XVII ENTIRE AGREEMENT This Agreement, any Exhibits referenced and attached hereto or to be attached hereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersede any and all prior negotiations, understandings and agreements with respect hereto, whether oral or written. IRU GRANTEE: COUNTY OF DAKOTA By: Its: k m• (levrek, Approved as to Forn1 /s/ JU R Stassen 7/14/2016 Assistant County Attorney Date IRU GRANTOR: CITY OF EAGAN By: Mike Maguire Its: Mayor Christina M. Scipioni Its: Clerk KS16-261 County -Eagan Dodd Road Fiber Project —Conduit IRU v2 �l Exhibit A Description of Fiber Segment Details, Ownership and Use Segment 1 This segment consists of an empty, existing 11/2" conduit for the fiber optic cable installation running from the Eagan City Hall to the intersection of 120th Street and Dodd Rd. Ownership of conduit remains with the City upon execution of this Agreement. The County will install 288 strands of fiber within the existing conduit. The County will own and maintain the fiber in Segment 1. The City will have use of the following 48 strands of fiber within the 288 strand sheath: • Orange tube • Green tube • Brown tube • Slate tube Segment 2 This segment consists of an empty, existing 11/2" conduit for the fiber optic cable installation running from Fire Station #2 MER to the intersection of Westcott Rd. and Westcott Hills Dr. Ownership of the conduit remains with the City upon execution of this Agreement, The County will install 96 strands of within the conduit. The County will own and maintain the fiber in.Segment 2. The City will have use of the following 48 strands of fiber from the City Hall within the 288 strand and 96 strands sheaths: 288 sheath 96 sheath White tube Orange tube Red tube Green tube Yellow tube Brown tube Black tube Slate tube Segment 3 This segment consists of 144 strands of new fiber to be installed by the County from AccessEagan handhole #13 to AccessEagan handhole #123. The County will own and maintain the fiber:in Segment 3. The City will have use of the following 48 strands of fiber within the 144 strand sheath: • Orange tube • Green tube • Brown tube • Slate tube Segment 4 This segment consists of 144 strands of the existing fiber optic cable owned and previously installed by the City from Fire Station #2 to the AccessEagan. splice point .#6 located at the intersection of Dodd Road and Yankee Doodle Rd. The City will own and maintain the fiber in Segment 4. The County will have use of the following two strands of fiber within the 144 strand sheath: o Pink Tube/Green Strand Pink Tube/Brown Strand Segment 5 This segment consists of four fiber sheaths installed by the City of Eagan along the Segment 5 path. First cable is 24 single mode fiber from the equipment room in Sperry, Tower to the splice point located at the intersection of Towerview Rd. and Pilot Knob Rd. The second cable is 144 single mode fiber that was installed and owned by the City of Eagan along Pilot Knob Rd. to the AccessEagan splice point #1 (SP #1) located at the intersection of Pilot Knob and Central Pkwy. The third cable is 288 strands of fiber cable that was installed and owned by the City of Eagan from AccessEagan SP #1 to SP #2 located at the intersection of Yankee Doodle Rd. and Lexington Ave. The fourth segment is 144 fiber cable that was installed and owned by the City of Eagan from AccessEagan SP #2 to Fire Station #2. The City will own and maintain the fiber in Segment 5. The County will have the use of the following two strands of fiber along Segment 5: o First cable 24 fibers Blue Tube/Pink Strand and Blue Tube/Aqua Strand • Second cable 144 fibers Blue Tube./Pink Strand and Blue Tube/Aqua Strand ® Third cable 288 fibers Orange Tube/Pink Strand and Orange Tube/Aqua Strand • Fourth cable 144 fibers Aqua Tube/Pink Strand and Aqua Tube/Aqua Strand ® The County will cover all costs needed to interconnect these fiber sheaths if the splice connection has not already been made. ® The City will provide a pair of fiber to the County to use temporarily from Fire Station #2 to Eagan City Hall to interconnect County switches at Eagan City Hall and Fire Station #2. When all fiber construction for this Project has been completed as described in this Agreement, the County will use its own fiber strands to make the interconnect between Eagan City Hall and Fire Station #2. 01 Agenda Information Memo August 1, 2016, Eagan City Council Meeting CONSENT AGENDA F. Approve The Execution Of A Joint Powers Agreement With The Dakota County Drug Task Force To Provide The Care And Handling Of A Drug Detection Dog. Action To Be Considered: To execute a Joint Powers Agreement (JPA) with the Dakota County Drug Task Force to provide care and handling of a drug detection dog. Facts: ➢ The Dakota County Drug Task Force has utilized 2 drug detection dogs over the last several years with agreements between various entities to care and handle the K -9's. ➢ Recently one Task Force Agent was called back to his city which left the Task Force posting for a handler. ➢ Police Administration authorized Detective Peter Meyer to express interest to be a handler and after a selection process he was chosen to be the Handler for K-9 Marley. ➢ Marley has been a certified drug detection dog for approximately 4 years. Detective Peter Meyer is scheduled to take Marley through certification training in August of 2016. ➢ The City Attorney has reviewed the agreement. Attachments: (1) CF -1 Joint Powers Agreement JOINT POWERS AGREEMENT BETWEEN THE DAKOTA COUNTY DRUG TASK FORCE AND THE CITY OF EAGAN FOR DRUG DETECTION DOG HANDLER THIS AGREEMENT is made and entered into by and between the Dakota County Drug Task Force (DCDTF), a joint powers organization acting through the Dakota County Drug Task Force Administrative Board (Board) and the City of Eagan (City). WHEREAS, the Dakota County Drug Task Force (DCDTF) was created pursuant to a Joint Powers Agreement of certain member cities in Dakota County, the City of Savage, and the County of Dakota (County) pursuant to authority conferred upon the parties by Minnesota Statutes §471.59 (Joint Powers Agreement); and WHEREAS, the DCDTF is governed by the Board; and WHEREAS, the Board has the authority to enter into any contract necessary or proper for the exercise of its powers or the fulfillment of its duties and the Board may authorize the Chair of the Board to execute contracts on behalf of the Board; and WHEREAS, the DCDTF and the Board are in need of an Officer to perform Drug Detection Dog handling responsibilities; and WHEREAS, the City, through its Police Department, is willing to assign an officer with the requisite skills and training to perform Drug Detection Dog handling responsibilities. NOW, THEREFORE, in consideration of the mutual promises and benefits that each party shall derive from this Agreement, and other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows: ARTICLE I SERVICES The duties and responsibilities of the parties for the care and handling of a drug detection dog are stated and described imthe memorandum Regarding Drug Detection Dog, dated July 8, 2016, attached and incorporate herein as Exhibit A, and the Dakota County Drug Task Force Joint Powers Agreement, attached and incorporated herein as Exhibit B. ARTICLE II TERM OF AGREEMENT Notwithstanding the date of signatures on this Agreement, the City shall provide services commencing on August 1, 2016 continuing through December 31, 2019 or until termination in accordance with Article III of this Agreement. ARTICLE III TERMINATION Either party may terminate this Agreement upon thirty (30) days notice to the other party with or without cause. ARTICLE 111 AUTHORIZED REPRESENTATIVES AND LIAISONS 3.1 Authorized Rearesentatives. The following named persons are designated the Authorized Representatives of the parties for purposes of this Agreement. These persons have authority to bind the party they represent and to consent to modifications, except that the authorized representatives shall have only the authority specifically or generally granted by their respective governing boards. Notice required to be provided pursuant to this Agreement shall be provided to the following named persons and addresses unless otherwise stated in this Agreement, or in a modification of this Agreement. DCDTF: Phil Oeffling DCDTF President, or successor P.O. Box 21304 Eagan, MN 55121 Telephone: 651-994-6220 City of Eagan: James McDonald Police Chief, or successor 3830 Pilot Knob Road Eagan, MN 55122 Telephone: (651) 675-5700 In addition, notification to the County regarding termination of this Agreement by the other party shall be provided to the Office of the Dakota County Attorney, Civil Division, 1560 Highway 55, Hastings, MN 55033. 3.2 Liaisons. To assist in the day-to-day performance of this Agreement and to ensure compliance and provide ongoing consultation, a liaison shall be designated by the County and the DCDTF. The County and the DCDTF shall keep each other continually informed, in writing, of any change in the designated liaison. At the time of execution of this Agreement, the following persons are the designated liaisons: DCDTF: City of Eagan: Sgt. James Gabriel, Commander Peter Meyer P.O. Box 21304 3830 Pilot Knob Road Eagan, MN 55121 Eagan, MN 55122 Telephone: 651-994-6220 Telephone: (651) 675-5700 ARTICLE IV GENREAL PROVISIONS 4.1 Government Data Practices Act. The DCDTF and the City must comply with the Minnesota Government Data Practices Act, Minn. Stat. Ch. 13, as it applies to all data provided under this Agreement and as it applies to all data created, collected, received, stored, used, maintained, or disseminated by the parties under this Agreement. The civil remedies of Minn. Stat. §13.08 apply to the release of the data referred to in this clause by either the City or the DCDTF. 4.2 Audits/Access To Records. Each entity shall allow the other entity access to its records at reasonable hours, including all books, records, documents, and accounting procedures and practices relevant to the subject matter of this Agreement, for purposes of audit. 4.3 Governing Law, Jurisdiction and Venue. Minnesota Law, without regard to its choice of law provisions governs this Agreement. Venue for all legal proceedings involving the Agreement, or its breach, must be in the appropriate state or federal court, with competent jurisdiction in Dakota County Minnesota. 4.4 Merger. This Agreement is the final expression of the agreement of the parties and the complete and exclusive statement of the terms agreed upon and shall supersede all prior negotiations, understandings, or agreements. 4.5 Severability. The provisions of this Agreement shall be deemed severable. If any part of this Agreement is rendered void, invalid or unenforceable, such rendering shall not affect the validity and enforceability of the remainder of this Agreement unless the part or parts that are void, invalid or otherwise unenforceable shall substantially impair the value of the entire Agreement with respect to either party. 4.6 Amendments. Any amendments to this Agreement must be in writing and will not be effective until it has been executed and approved by the individuals who signed the original Agreement, or their successors in office. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated below. DAKOTA COUNTY DRUG TASK FORCE Approved as to form /s/Helen R. Brosnahan 7/21/16 By: Assistant County Attorney/Date County Attorney File No. KS -16-274 Chair, Administrative Board Date of Signature CITY OF EAGAN By: Mike Maguire, Mayor Date of Signature By: Christina Scipioni, Clerk Date of Signature Agenda Information Memo August 1, 2016, Eagan City Council Meeting CONSENT AGENDA G. Adopt A Proclamation Recognizing August 2, 2016, As "National Night Out" In Eagan Action To Be Considered: Adopt a proclamation recognizing August 2, 2016, as National Night Out in Eagan. Facts: Tuesday, August 2, 2016, is the 33rd annual National Night Out celebration. ➢ National Night Out is sponsored by National Association of Town Watch (NATW). ➢ The City of Eagan has participated in National Night Out since 1998 (18 years). ➢ Participation has grown every year in Eagan. This year there are 196 registered neighborhoods who will participate in the celebration. Police and Fire units will visit these gatherings. ➢ Eagan residents are asked to join millions of their fellow citizens across the United States in this celebration of Community, Crime Prevention and strong police/community partnerships. ➢ Strong neighborhoods are essential to public safety and homeland security. ➢ From 5:30 to 9:30 p.m., residents are encouraged to lock their doors, turn on outside lights and spend the evening outside with their neighbors. ➢ For questions or more information, please contact the Eagan Police Department Crime Prevention Unit at 651-675-5727. Attachments: (1) CG -1 Proclamation CITY OF EAGAN PROCLAMATION NATIONAL NIGHT OUT 2016 WHEREAS, the National Association of Town Watch (NATW) is sponsoring a unique, nationwide, crime, drug and violence prevention program on August 2nd, 2016, called "National Night Out"; and WHEREAS, the "33rd Annual National Night Out" provides a unique opportunity for Eagan to join forces with thousands of other communities across the country in promoting cooperative, police -community crime prevention efforts; and WHEREAS, the Eagan Police Department plays a vital role in crime, drug and violence prevention efforts and is supporting "National Night Out 2016" locally; and WHEREAS, it is essential that all citizens of Eagan be aware of the importance of crime prevention programs and the impact that their participation can have on reducing crime, drugs and violence in Eagan; and WHEREAS, police -community partnerships, neighborhood safety, awareness and cooperation are important themes of the "National Night Out" program; NOW, THEREFORE, BE IT RESOLVED that the Eagan City Council does hereby call upon all citizens of Eagan to join with the City of Eagan and the National Association of Town Watch in supporting "33rd Annual National Night Out" on August 2nd, 2016. BE IT FURTHER RESOLVED that the Mayor and Council do hereby proclaim Tuesday, August 2nd, 2016 as "National Night Out" in the City of Eagan. Motion made by: Seconded by: Those in favor: Those against: Dated: CITY OF EAGAN CITY COUNCIL By: Its Mayor Attest: Its City Clerk CERTIFICATION I, Christina Scipioni, City Clerk of the City of Eagan, Dakota County, Minnesota, do hereby certify that the foregoing resolution was duly passed and adopted by the City Council of the City of Eagan, Dakota County, Minnesota, in a regular meeting thereof assembled this , 2016. Christina Scipioni, City Clerk Agenda Information Memo August 1, 2016, Eagan City Council Meeting CONSENT AGENDA H. Schedule public hearing date for September 6, 2016 to certify delinquent nuisance abatement bills Action To Be Considered: To schedule a public hearing for September 6, 2016 to consider final assessment of the delinquent nuisance abatement bills and certify them to Dakota County for collection with property taxes. Facts: ➢ On a semi-annual basis, the City reviews and considers delinquent nuisance abatement bills for certification to property tax statements for collection. Nuisance abatement bills include fees for false alarm calls, mowing and noxious weed removal, refuse removal and diseased tree removal. ➢ Additional information will be provided at the time of the public hearing. Attachments: (0) Agenda Information Memo August 1, 2016, Eagan City Council Meeting CONSENT AGENDA Schedule public hearing date for September 6, 2016 to certify delinquent utility bills Action To Be Considered: To schedule a public hearing for September 6, 2016 to consider final assessment of the delinquent utility bills and certify them to Dakota County for collection with property taxes. Facts: ➢ On a semi-annual basis, the City reviews and considers delinquent utility bills for certification to property tax statements for collection. ➢ Additional information will be provided at the time of the public hearing. Attachments: (0) Agenda Information Memo August 1, 2016, Eagan City Council Meeting CONSENT AGENDA J. Approve a Temporary On -Sale Liquor License and waive the license fee for The Eagan Foundation on October 6, 2016 at 1501 Central Parkway. Action To Be Considered: To approve a temporary on -sale liquor license and waive the license fee for the Eagan Foundation on October 6, 2016 at 1501 Central Parkway. Facts: ➢ The Eagan Foundation has requested a temporary on -sale liquor license be issued to it for the 151h Annual Wine and Beer Tasting on October 6, 2016. The event will be held at the Eagan Community Center, 1501 Central Parkway. ➢ The Eagan Foundation has requested that the $150.00 license fee be waived. ➢ The application form has been submitted and deemed in order by staff. Following Council approval, the application will be forwarded to the Department of Public Safety — Alcohol and Gambling Enforcement Division for final approval. Attachments: (1) CJ -1 Letter from Eagan Foundation BRINGING NEIGHBORS TOGETNER June 29, 2016 Mayor Mike Maguire Eagan City Council Members 3830 Pilot Knob Road Eagan, MN 55122 Dave Osberg, City Administrator City of Eagan 3830 Pilot Knob Road Eagan, MN 55122 Re: A Taste of the Eagan Foundation, 15th Annual Wine Tasting and Silent & Live Auction Event Dear Mayor Maguire, Eagan City Council Members, and Mr. Osberg and City Staff: The Eagan Foundation again wants to thank the City of Eagan for its ongoing partnership with the Foundation in our efforts to make Eagan the best and most involved community in Minnesota. We are planning our 15th Annual Wine Tasting and Silent & Live Auction to be held on Thursday, October 6, 2016 at the beautiful Eagan Community Center. This event is our primary fundraiser for the year and we expect in excess of 300 attendees at what has come to be a community signature event. We ask the Council to waive, as it most graciously has in the previous years, the fee for the Temporary On -Sale Liquor License for the event. We have enclosed our application for the license, along with the supporting paperwork. We will forward more information to the Council and Staff about the event as the day draws near, but for now, please save the date — October 6, 2016. Please contact me directly at 612-481-0211 if you have any questions or concerns. Thank you for your consideration. Most sincerely, �, Amy Hero Jones Program Administrator Agenda Information Memo August 1, 2016, Eagan City Council Meeting CONSENT AGENDA K. Approve Exempt Permit for the Eagan Foundation to hold a raffle on October 6, 2016 at 1501 Central Parkway Action To Be Considered: To adopt a resolution approving an Exempt Permit for the Eagan Foundation to conduct a raffle on October 6, 2016 at 1501 Central Parkway. Facts: ➢ The Eagan Foundation has applied for an Exempt Permit with the Gambling Control Board to hold a raffle as listed above. ➢ All requirements for the application have been met and staff deems it in order for approval. Attachments: (1) CK -1 Resolution RESOLUTION NO. _ CITY OF EAGAN APPLICATION FOR EXEMPT PERMIT EAGAN FOUNDATION WHERAS, The Eagan Foundation has applied for an Exempt Permit to conduct a raffle on October 6, 2016; and WHEREAS, the Eagan Police Department has reviewed the application and has not identified any reason to deny; and NOW, THEREFORE, BE IT RESOLVED that the City Council of Eagan, Dakota County, Minnesota, hereby approved the Exempt Permit for the Eagan Foundation to conduct a raffle on October 6, 2016 at 1501 Central Parkway. Motion by: Seconded by: Those in favor: Those against: Date: August 1, 2016 CERTIFICATION CITY OF EAGAN CITY COUNCIL By: Its Mayor Attest: Its Clerk I, Christina M. Scipioni, Clerk of the City of Eagan, Dakota County, Minnesota, do hereby certify that the foregoing resolution was duly passed and adopted by the City Council of the City of Eagan, Dakota County, Minnesota, in a regular meeting thereof assembled this 1St day of August, 2016. City Clerk Agenda Information Memo August 1, 2016, Eagan City Council Meeting CONSENT AGENDA L. Approve a Temporary On -Sale Liquor License and waive the license fee for Faithful Shepherd Catholic School on November 19, 2016 at 3355 Columbia Drive. Action To Be Considered: To approve a temporary on -sale liquor license and waive the license fee for Faithful Shepherd Catholic School on November 19, 2016 at 3355 Columbia Drive. Facts: ➢ Faithful Shepherd Catholic School has requested a temporary on -sale liquor license be issued to them for their Mistletoe Market event on November 19, 2016. The event will be held inside Faithful Shepherd Catholic School, located at 3355 Columbia Drive. The event is a fundraiser for the school. ➢ Faithful Shepherd Catholic School has requested that the $150.00 license fee be waived. ➢ The application form has been submitted and deemed in order by staff. Following Council approval, the application will be forwarded to the Department of Public Safety —Alcohol and Gambling Enforcement Division for final approval. Attachments: (1) CL -1 Letter from FSCS Ed Agenda Information Memo August 1, 2016, Eagan City Council Meeting CONSENT AGENDA M. Approve Exempt Permit for Faithful Shepherd Catholic School to hold a raffle on November 19, 2016 at 3355 Columbia Drive Action To Be Considered: To adopt a resolution approving an Exempt Permit for Faithful Shepherd Catholic School to conduct a raffle on November 19, 2016 at 3355 Columbia Drive. Facts: ➢ Faithful Shepherd Catholic School has applied for an Exempt Permit with the Gambling Control Board to hold a raffle as listed above. ➢ All requirements for the application have been met and staff deems it in order for approval. Attachments: (1) CM -1 Resolution RESOLUTION NO. _ CITY OF EAGAN APPLICATION FOR EXEMPT PERMIT FAITHFUL SHEPHERD CATHOLIC SCHOOL WHERAS, Faithful Shepherd Catholic School has applied for an Exempt Permit to conduct a raffle on November 19, 2016; and WHEREAS, the Eagan Police Department has reviewed the application and has not identified any reason to deny; and NOW, THEREFORE, BE IT RESOLVED that the City Council of Eagan, Dakota County, Minnesota, hereby approved the Exempt Permit for Faithful Shepherd Catholic School to conduct a raffle on November 19, 2016 at 3355 Columbia Drive. Motion by: Seconded by: Those in favor: Those against: Date: August 1, 2016 CERTIFICATION CITY OF EAGAN CITY COUNCIL By: Its Mayor Attest: Its Clerk I, Christina M. Scipioni, Clerk of the City of Eagan, Dakota County, Minnesota, do hereby certify that the foregoing resolution was duly passed and adopted by the City Council of the City of Eagan, Dakota County, Minnesota, in a regular meeting thereof assembled this 1St day of August, 2016. City Clerk Agenda Information Memo August 1, 2016 Eagan City Council Meeting CONSENT AGENDA N. Contract 16-11, Well No. 11 Rehabilitation Water System Improvements Action To Be Considered: Approve the final payment for Contract 16-11 (Well No. 11 Rehabilitation — Water System Improvements) in the amount of $43,340.00 to Bergerson-Caswell Inc., and accept the improvements for perpetual City maintenance subject to warranty provisions. Facts: ➢ Contract 16-11 refurbished Well No. 11, including equipment removal, equipment disassembly and inspection, replacement of worn or broken parts, equipment reassembly, coating protection, televising the actual well (determine physical condition), cleaning the casing, installation, and final inspection/tests. ➢ The City's Public Works Department (Utilities Division) operates 21 deep water wells as the source of Eagan's municipal drinking water supply. The average operational life of a deep water well is approximately seven years or 45,000 running hours. On average, the City of Eagan contracts to rehabilitate three wells per year. ➢ These improvements have been completed, inspected by representatives of the Public Works Department and found to be in order for favorable Council action of final payment and acceptance for perpetual maintenance subject to warranty provisions. Attachments (0) Agenda Information Memo August 1, 2016 Eagan City Council Meeting CONSENT AGENDA O. Contract 16-21, Central Area Street Light Improvements Action To Be Considered: Receive the bids for Contract 16-21 (Central Area - Street Light Improvements), award a contract to Taylor Electric Company, LLC, for the base bid in the amount of $279,175, approve the purchase of related material/ equipment and authorize the Mayor and City Clerk to execute all related documents. Facts: ➢ Contract 16-21 provides for miscellaneous maintenance repairs and LED luminaire retrofits of the City -owned streetlight systems in the Central Area, including Yankee Doodle Road (CSAH 28), Denmark Avenue, Promenade Avenue, and Northwood Parkway. ➢ This project is programmed in the City's 2016-2020 Capital Improvement Plan, which was approved by the City Council on June 2, 2015. ➢ On June 21, 2016, the Council approved the plans and specifications for Contract 16-21 and authorized the solicitation of competitive bids. ➢ Formal bids were received on Thursday, July 28, 2016. A summary of bids received is attached. ➢ The City will purchase certain equipment and materials directly from vendors to recognize the cost benefits of sales -tax exemption. The equipment and materials will be installed by Taylor Electric Company, LLC as part of this contract. ➢ All of the construction activity for said improvements has been designed to occur within existing public right-of-way or easements. ➢ All bids have been reviewed for compliance with the bid specifications and accuracy on unit price extensions and summations. The base bid of $279,175 has been reviewed by the Public Works Department (Engineering) and found to be in order for favorable Council action. Attachments (1) CO -1 Bid Summary BID SUMMARY CENTRAL AREA STREET LIGHT IMPROVEMENTS CITY PROJECT 1217 CITY CONTRACT 16-21 Bid Date/ Time: 10:30 a.m., Thursday, July 28, 2016 Bidders Total Base Bid Engineer's Estimate: $354,410.00 % Over/Under Estimate 1. Taylor Electric Co. $279,175.00 -21% Agenda Information Memo August 1, 2016 Eagan City Council Meeting CONSENT AGENDA P. Street Name Change — MV Eagan, LLC Action To Be Considered: Approve a street name change of Northwest Parkway to Vikings Parkway subject to the applicant being responsible for all costs associated with the name change (i.e. sign replacement etc.). Facts: ➢ The Preliminary Planned Development and Preliminary Subdivision of MV Eagan Ventures were approved by Council action on June 21, 2016. ➢ The requested street name change is a result of the proposed reconfiguration of Northwest Parkway and desire of the applicant to establish a relationship between the Vikings Headquarters site and the street from which access to it is to be provided. ➢ Two parcels not owned by the applicant are currently addressed off of Northwest Parkway; 815 Northwest Parkway and 855 Northwest Parkway. ➢ City Staff will inform all utility companies, post office and other entities of address and street name changes. Attachments (2) CP -1 Location Map CP -2 Letter from Applicant W® 4 GR ;u CA Y3 CL (D cn Q to 0 own ol— C) in (D o w CL C) r - C) ca y E 0 C CDcn CL 0 CD OR N) IC) O -n C) CD R Z�> 0 own (D I � • B 12 1 G G S M O R E A N July 28, 2016 City of Eagan Attn: Mike Ridley, City Planner 3830 Pilot Knob Road Eagan, MN 55122 2200 IDS Center 80 South 8th Street Minneapolis MN 55402-2157 tel 612.977,8400 fax 612.977.8650 RE: Street Name Change Petition- Northwest Parkway Dear Mike: Patrick E. Mascia (612)977-8283 pmascia@briggs,com On behalf of the owners of all of the land situated on Northwest Parkway between Lone Oak Road and Ames Crossing Road ("Owners"), we petition and request that the City of Eagan rename Northwest Parkway to "Vikings Parkway" from Northwest Parkway's intersection with Dodd Road to its intersection with Ames Crossing Road. We understand that only two property owners located on Northwest Parkway between Dodd Road and Lone Oak Road have Northwest Parkway addresses. One owner, Venstar, owns vacant land at the corner of Dodd and Northwest Parkway. The other owner, CSM, owns the building located at the corner of Northwest Parkway and Lone Oak Road. In support of our petition, we include a letter of support from Venstar. CSM has verbally indicated that it does not object to our petition, but desires to discuss the petition with its tenants and hopes to submit its letter of support before the August 1 City Council meeting. NARRATIVE Northwest Parkway was given its name because Northwest Airlines located its headquarters campus on the land now owned by the Owners for over 30 years. However, when Northwest Airlines merged with Delta Airlines (headquartered in Atlanta, Georgia), Delta Airlines decided to vacate the buildings comprising the Northwest Airlines headquarters campus in Eagan and sold the land to an affiliate of The Excelsior Group, which then sold the land to the Owners. Briggs and Morgan, Professional Association Minneapolis I St. Paul I www.briggs.com 7794979v2 BRIGGS AND MORGAN The Owners are planning to develop a 200 acre mixed use planned development on the land, which planned development was preliminarily approved by the City of Eagan on June 21, 2016. The anchor of the development, as explained in greater detail in the Narrative submitted in support of the Owners' Preliminary Planned Development application, is a new headquarters and training facility for the Minnesota Vikings professional football club on approximately 40 acres of the development land. The Owners have commenced tree removal and grading activities on the Vikings' headquarters land and intend to apply for final approvals for construction of the various buildings and other site improvements comprising the Vikings' headquarters on August 8, 2016. The Owners and the Minnesota Vikings have made, and will continue to make, a significant investment to make the development an international destination and to build the Vikings' headquarters on a part of the site as the anchor of the planned development. We therefore request that the City of Eagan rename Northwest Parkway as "Vikings Parkway" to commemorate the new "Home of the Vikings" instead of the departed Northwest Airlines headquarters. We are eager to call Eagan home and, to that end, look forward to designating "Eagan, Minnesota" as the originating location of all press releases distributed by the Vikings from the Vikings' headquarters after the Vikings move in to their new home. Thank you for your consideration of our request. Ver, rt yours, Patrick E. Mascia 7794979v2 -"44:x_.•-.- EN"S`HTIe►R.� LLC Real Estate Developrnent/Manageanent July 25, 2016 City of Eagan Attn: Mike Ridley 3830 Pilot Knob Road Eagan, MN 55122 Re: Street Name Change — Northwest Parkway Dear Mike: Venstar, LLC, as owner of that certain land located at the intersection of Dodd Road and Northwest Parkway, Eagan, Minnesota, supports the Street Name Change Petition submitted by the owners of the former Northwest/Delta Airlines headquarters land and consents to any action taken by the City of Eagan to rename "Northwest Parkway". Sincerely, Brenda :Quaye Chief Manager Venstar, LLC Agenda Information Memo August 1, 2016 Eagan City Council Meeting CONSENT AGENDA Q. Project 1221/ County Project 31-90 Pilot Knob Road Storm Structure Rehabilitation Request for Extension of Working Hours Action To Be Considered: Authorize a variance to the Construction Activity Noise Regulations to exempt Ryan Contracting for storm structure rehabilitation on Pilot Knob Road/ CSAH 31 (Cliff Road to the Apple Valley border) between 6:00 a.m. and 7:00 a.m., Monday through Friday, from August 15, 2016 through September 2, 2016. Facts: ➢ The Dakota County Transportation Department has contracted with Ryan Contracting for storm structure rehabilitation on Pilot Knob Road/ CSAH 31 (Cliff Road to the Apple Valley border) in south-central Eagan. The City of Eagan is participating financially in the rehabilitation through a joint powers agreement with the County. ➢ Section 10.37 of the City Code prohibits construction activity or the use of tools and equipment for construction activity between the hours of 10:00 p.m. and 7:00 a.m. within the City. ➢ On July 14, 2016, County and City staff received a request from Ryan Contracting, the contractor for Dakota County, requesting that Ryan Contracting crews be allowed to work from 6:00 a.m. to 7:00 a.m. Monday through Friday from August 15 through September 2. ➢ The purpose of the request is to limit the length of impact of the construction activity upon the traveling public and adjacent properties along this busy stretch of roadway. ➢ The City Council has approved numerous previous similar contractor requests to reduce the impact (number of days) of the construction activity. Attachments (2) CQ -1 Location Map CQ -2 Contractor Request DIFFLEY RD. a — -�� w w W _F CLIFF ROAD APPLE VALLEY / YANKEE- DOODLE • RD. LONE OAK -D m PI A■— !4 w yQ z O v \z\/ R w J Construction Location for Proposed Variance I / r-',,�i CLIFF - ROAD Proposed Variance to Location Map 411 Construction Activity Noise Regs. City of Eap Pilot Knob Road Storm Structure Rehab. August 1, 2016 July 14, 2016 City of Eagan Attn: Dale Ronning 3830 Pilot Knob Road Eagan, MN 55122 RE: CP 31-90 Dear Ms. Reilly: SENT VIA: EMAIL Please let this letter serve as our request for extended working hours on the above referenced project. We are requesting the work hours be extended to 6am-9pm, Monday through Friday for two weeks, while working on this project. The main reason for asking for additional work hours is to insure the quality of our workmanship and to allow for more cure time for the freshly laid concrete and for the bituminous to gain more strength before driving on the improved surface. We appreciate your time on this matter and look forward to hearing back from you. If you have any questions, please do not hesitate to contact me at 612=282-4330 or email tomr@ryancont.com. Thank you. submitted, Tho/h' as J1AVan Pre�id.orft `-- /brt 26480 France Ave ° P.O. Box 246 ° Elko New Market, Minnesota 55020 ° 952-894-3200 0 Fax: 952-894-3207 Agenda Information Memo August 1, 2016 Eagan City Council Meeting CONSENT AGENDA R. Cost -Share, Operation and Maintenance Agreement Lauri Holland Action To Be Considered: Approve a Cost Share, Operation and Maintenance Agreement with Lauri L. Holland (695 Hay Lake Court) to help implement a Shoreland and Upland Buffer Project at Hay Lake through the Water Quality Cost -Share Partnership Program and authorize the Mayor and City Clerk to execute all related documents. Facts: On December 4, 2012, the City Council approved a Water Quality Cost -Share Partnership Program (Program), the purposes of which are to: 1) improve water quality in downstream public waterbodies; 2) reduce stormwater runoff into the storm sewer system and public waterbodies; 3) preserve, protect and enhance native plant communities around public waterbodies; and 4) educate and engage the public on the value of improving public water resources, and to develop empowerment and partnership opportunities. ➢ The Program is funded from the stormwater utility fund and is being administered by Water Resources staff according to City Council priorities as designated in approved capital improvement programs, lake management plans, and development agreements. The Program is provided up to $50,000 annually in the 2016-2020 Public Works Department's Capital Improvement Program. ➢ The property owner will engage a specialized contractor to prepare, plant, and establish a shoreland buffer at Hay Lake, on approximately 2,400 square feet of the parcel and along approximately 240 linear feet of shoreline, to protect shoreland and upland soils from erosion, reduce stormwater runoff and nutrient impacts to Hay Lake and enhance native plant communities. The property owner will be responsible for long-term maintenance of the site for a minimum of the next 10 years. This project will be a lake -viewable demonstration of effective shoreland buffer/restoration practices that may influence other lake residents to follow. ➢ The project should be substantially completed by the end of 2016 at a total estimated cost of $8,270.00. An estimated cost -share of $6,202.50 (75% of project costs) from the City will be matched by approximately $2,067.50 of funding (25% of project costs) from the property owner. ATTACHMENTS (1) CR -1 Cost -Share, Operation and Maintenance Agreement CITY OF EAGAN WATER QUALITY COST SHARE PARTNERSHIP PROGRAM COST SHARE, OPERATION AND MAINTENANCE AGREEMENT This Agreement is made this day of , 2016, by and between Laura L. Holland, a single person (the "Owner"), and the City of Eagan, a Minnesota municipal corporation (the "City"), (collectively the "Parties"). WHEREAS, the Owner is the fee title holder of real property located at 695 Hay Lake Court, Eagan, Minnesota, and legally described as follows: Lot 4, Block 1, PATRICK ADDITION, Dakota County, Minnesota (the "Property"); WHEREAS, the Owner desires to perform a water quality improvement project (the "Project") to install Shoreland and Upland Buffer Protection (the "Improvements") as depicted on and in accordance with the proposal attached hereto as Exhibit A and incorporated herein (Exhibit A will be referred to as the "Plans and Specifications"); WHEREAS, the Owner has have submitted an application for assistance with the Project under the City's Water Quality Cost Share Partnership Program (the "Program"); WHEREAS, the City finds that the Project will serve a public purpose by supporting one or more of the following public water resource priorities: a. improving water quality in downstream public waters; b. reducing stormwater runoff into the public storm -sewer system and public waters; c. preserving, protecting and enhancing native plant communities around public waters; and d. educating and engaging the public on the value of improving public water resources, and empowerment and partnership opportunities; WHEREAS, the City finds that the Owner and the proposed Project meet the eligibility requirements for participation in the Program; and WHEREAS, the City agrees to provide the Owner with certain financial and technical assistance for the Project through the Program, subject to the terms and conditions hereinafter set forth; NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and obligations of the Parties hereinafter set forth, the Parties agree as follows: 1. Plans and Specifications. a. Owner's Responsibility. The Owner shall be responsible for development of the plans/design, specifications and itemized cost estimate for the Improvements (the "Plans and Specifications"). b. City Review. The Owner shall submit the Plans and Specifications to the City for review and written approval by the City Engineer or her designee prior to installation of the Improvements. Notwithstanding the foregoing, the Owner shall be solely responsible to determine the adequacy of the Plans and Specifications and to comply with all applicable laws and regulations, and the City shall have no liability for the Plans and Specifications or the Improvements. e. Modification of Plans and Specifications. Any modification to the approved Plans and Specifications must be approved in writing by the City Engineer or his designee. 2. Installation. a. Standards. The Improvements shall be installed in accordance with the approved Plans and Specifications. b. Labor and Materials. The Owner shall select, obtain and pay for all labor and materials for the Project, consistent with the Plans and Specifications, subject to partial reimbursement as provided in this Agreement. c. Photogrqphs. The Owner shall take photographs to document the Project. d. Time for Completion. The Project must be completed within one year from the date of execution of this Agreement, unless an extension has been requested and granted by amendment of this Agreement. e. Report. Within 30 days after completion of the Project, the Owner shall submit to the City Engineer or his designee a project completion report in a form required by the City (including supporting photographs). OA 3. Reimbursement. a. Reimbursement Request. As the Improvements are completed and approved by the City Engineer or his designee, the Owner shall submit to the City Engineer or his designee a written request for reimbursement including (i) a detailed itemization of costs, (ii) original receipts or paid invoices and (iii) itemization and documentation of the Owner's Match as defined below (collectively the "Reimbursement Request"). b. Reimbursement Amount. The City shall reimburse the Owner pursuant to the Reimbursement Request for up to $10,326.60 for eligible project costs, and not to exceed seventy-five percent (75 %) of total Project costs. Reimbursement Schedule. The City shall issue reimbursement to the Owner within thirty (30) days of receipt of a completed Reimbursement Request. d. Eligible Costs. All Project costs will be reviewed and verified by the City Engineer or his designee as eligible, practical and reasonable. The City reserves the right to make adjustments to the Project costs submitted for reimbursement based on this review. Subject to the foregoing, the following Project costs are eligible for reimbursement: i. Materials for the Improvements. ii. Contracted labor costs for site preparation, installation and establishment period (2 years maximum period post -installation) of the Improvements. iii. Contracted design / engineering fees, and soil -analysis, but only if approved in writing by the City Engineer or his designee before contracted design / engineering / soil -analysis work begins. e. Ineligible Expenses. i. Notwithstanding any provision of this Agreement to the contrary, purely aesthetic components of the Improvements are not eligible for reimbursement and shall not be considered part of the Project costs. ii. Funding will only cover work performed after this Agreement has been signed, with the exception of pre -project planning / design / engineering costs that may be allowed to be included, determined on a case-by-case basis, if pre -approved in writing by the City Engineer or his designee. f Owner's Match. i. The Owner shall be responsible for a minimum of twenty-five percent (25 %) of Project costs, which can include in-kind labor value. 3 4. Maintenance. a. Maintenance Obli ag tion. For a period of ten (10) years commencing on the date the Improvements are completed and approved by the City Engineer or his designee, the Owner shall maintain and repair, when necessary, the Improvements in accordance with the Plans and Specifications. b. Maintenance Costs, The Owner shall be solely responsible for all costs associated with long-term maintenance and repairs of the Improvements. 5. Inspections and Reports. a. Annual Inspections. The Improvements shall be inspected annually, between May 15 and October 15, by a Qualified Person selected by the Owner to determine whether or not the Improvements are functioning in accordance with the Plans, Specifications and this Agreement. As used in this Agreement, the term "Qualified Person" shall mean a person approved by the City Engineer based on shoreland and upland buffer best management practice training and experience. The Owner's responsibilities under this Section shall be at the Owner's sole cost and expense. If, as a result of the inspection, the Improvements are determined not to be functioning in accordance with the Specifications and this Agreement, the Owner shall restore/repair the Improvements to function as specified herein. b. City Notification and Independent Inspection. The City shall be notified at least 24 hours prior to the annual inspections or any significant maintenance of the Improvements and, at the sole cost of the City, a representative of the City may observe any inspection or maintenance. The City shall have right of entry onto the Property to inspect the Improvements at any time to evaluate the installation and maintenance of the Improvements. c. Inspection and Maintenance Report. The Owner shall submit a report to the City Engineer or his designee by e-mail or mail, no later than thirty (30) days after any annual inspection and/or maintenance of the Improvements, providing the following information: i. Date and time of inspection. ii. Log of findings. iii. Date and time of maintenance. iv. Details of maintenance performed. v. Photographic documentation. 6. Standards for Performance. Any act of construction, installation, maintenance, or repair to be performed under this Agreement shall be performed in a good and workmanlike manner pursuant to sound engineering practices and in compliance with all applicable governmental requirements. 0 7, Right of Entry. The City, its agents and employees shall have the right to enter the Property to inspect and to implement the terms of this Agreement, The City, its agents and employees shall not be subject to or liable for any claims of trespass in connection with such entry. 8. Indemnification. The Owner shall indemnify and hold the City and its City Council members, officers, employees, agents, representatives, attorneys, successors and assigns, harmless from any and all claims arising out of or related to (i) the installation, use, maintenance, repair, removal, damage or destruction of the Improvements, (ii) injury to the Owner or any third party caused by or related to the Improvements, and. (iii) damage to real property or personal property of the Owner or any third party caused by or related to the Improvements. 9. Amendment, Release or Termination. Notwithstanding anything herein to the contrary, no amendment, release or termination of any of the provisions of this Agreement shall be effective or may be filed of record unless the City consents to the amendment, release or termination. Such consent must be evidenced by a resolution duly approved by the City Council, or successor body. The Owner, on behalf of herself and her successors and assigns, expressly acknowledge and agree that the City has no obligation whatsoever to approve or act upon any proposed amendment, release or termination, may withhold or delay consent for any reason or no reason whatsoever, and may condition consent upon such terms as the City deems desirable. The Owner, on behalf of herself and her successors and assigns, further agree and covenant, consistent with this acknowledgment, not to institute any legal proceedings against the City on the grounds that the City failed to respond appropriately to a proposed amendment, release or termination and to indemnify the City against any expense, including litigation costs, which the City incurs as a result of any violation by that party of this covenant. The City may, at any time, give up the right to approval granted hereunder, said action to be evidenced by City Council resolution or other format approved by the City Attorney. 10. Remedies for Default. a. Termination. If the Owner fails to perform the Owner's obligations as and when required under this Agreement (a "Default"), and fails to cure such Default within thirty (30) days after the City gives written notice to the Owner specifying the Default, subject to such extension as may be reasonably necessary due to weather conditions, then the City may terminate this Agreement by written notice to the Owner. b. Repayment. Upon termination of this Agreement, the City Engineer or his designee shall determine the amount, if any, by which the reimbursement to the Owner for Project costs under this Agreement exceeded the public benefit received by the City from the Project (the "Overage"). The Owner shall repay the Overage to the City within thirty (30) days after receipt of an invoice from the City describing the calculation and the amount of the Overage. If the Owner fails to timely repay such funds, the Owner shall be responsible for the City's attorneys' fees and costs enforcing this Agreement, including costs of collection. c. Force Majeure. Notwithstanding the foregoing, the Owner shall not be liable for repayment of funds received under this Agreement if the failure was caused by reasons proven to be beyond the Owner's control. 11. Duration, This Agreement shall constitute a covenant running with the land and shall be binding upon and inure to the benefit of the Parties, and any and all of their successors and assigns. 12. Recording Agreement. The City will record this Agreement against the Property with the Dakota County Recorder's Office within thirty (30) days of full execution of this Agreement, and shall provide the Owner with verification of this recording. 13. Governing Law; Venue. The laws of the State of Minnesota shall govern the interpretation, validity, performance, and enforcement of this Agreement. Any dispute regarding this Agreement shall be venued in the State of Minnesota District Court in Dakota County. Owners' (or Representative's) Contact Information for Long -Term Inspection/Maintenance: Owner: Lauri L. Holland 695 Hay Lake Court Eagan, MN 55123 Telephone:�Z ' dd Email: �P\'6119-�5`��� v�M h �a �t� . C.0 [Signature pages follow] 6 IN WITNESS WHEREOF, the undersigned have executed this Cost Share, Operation and Maintenance Agreement effective as of the date first listed above. OWNER: STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) The foregoing was acknowledged before me this 2-05 day of \)l kA , 2016, by Lauri L. Holland, a single person. N a ie AMANDA JAYNE PREUSSE 3 . 3 Notary Public 5iri:v of Minnesota My 1:;�'jvl„sion Expires • Jonurary 31, 2020 CITY: CITY OF EAGAN, a Minnesota municipal corporation Mike Maguire Its: Mayor 51 Christina M. Scipioni Its: Clerk STATE OF MINNESOTA ) ss. COUNTY OF DAKOTA ) The foregoing was acknowledged before me this day of , 2016, by Mike Maguire and Christina M. Scipioni, the Mayor and Clerk of the City of Eagan, a Minnesota municipal corporation, on behalf of the municipal corporation. 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Facts: ➢ The City has received an application from New Cingular Wireless PCS, LLC (AT&T) for the upgrade of wireless communication system antennas on the Safari reservoir site located at 2091 Royale Drive in south Eagan. ➢ The application has been reviewed by the City's Engineering Consultant, Radio Communication Consultant, City Attorney's Office and Public Works Department personnel and found to be consistent with other past lease agreements and in order for favorable Council consideration. Attachments (1) CS -1 Fourth Amendment to Lease Agreement Market: Minnesota Tenant's Cell Site Name: Hwy 35E and 77 Tenant's Site #: 10104046/ WLSMNU3191 Landlord's Cell Site Name: Safari FOURTH AMENDMENT TO LEASE AGREEMENT THIS FOURTH AMENDMENT TO LEASE AGREEMENT ("Fourth Amendment"), dated as of the latter of the signature dates below ("Effective Date"), is by and between the City of Eagan, a Minnesota municipal corporation, ("Landlord") and New Cingular Wireless PCS, LLC, a Delaware limited liability company, flea AT&T Wireless Services of Minnesota, Inc. ("Tenant"). Recitals A. Landlord and Tenant (or its predecessor -in -interest) entered into a Lease Agreement dated October 21, 2003, as amended by that certain First Amendment to Lease Agreement dated July 10, 2007, as further amended with a Second Amendment to Lease Agreement dated June 15, 2012, as further amended with a Third Amendment to Lease Agreement dated October 7, 2014 (collectively, the "Lease") whereby Landlord leased to Tenant those certain premises described on Exhibit B-3 ("Premises") at the Safari Water Tank, therein described, that are a portion of the Property located at 2091 Royale Drive, City of Eagan, County of Dakota, State of Minnesota. B. Landlord and Tenant desire to amend certain provisions of the Lease as expressly set forth in this Fourth Amendment. Agreement IN CONSIDERATION of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows: 1. LEASE OF PREMISES. The Lease is amended to allow Tenant to remove, replace and install such additional equipment as specifically set forth on Exhibit B-3 attached hereto and incorporated herein ("Additional Equipment"). The Additional Equipment set forth on Exhibit B-3 shall be constructed and installed in accordance with the plans and specifications as set forth on Exhibit B-3 and in accordance with the rules and regulations of Landlord and state and local laws and building codes. Except as set forth on Exhibit B-3, Tenant shall not be allowed to make any other additions or replacements of the Additional Equipment or any other equipment or Antenna Facilities without Landlord's prior written consent. Nothing contained in this Fourth Amendment shall be deemed a waiver of any provision(s) in the Lease that requires Tenant to obtain Landlord's consent for any improvements or changes to Tenant's equipment in the future. If Tenant occupies any other portion of ground space located at the Property or any other space on the water reservoir, other than as expressly shown on Exhibit B-3 Tenant shall be in material default under the terms of the Lease and this Fourth Amendment and shall reimburse Landlord for all attorney's fees, court costs, unpaid rent for any portion of the Property so occupied and all other costs and expenses incurred by Landlord as a result of Tenant's unauthorized occupancy. 2. CONSTRUCTION STANDARDS. All work to be performed by Tenant and its contractors, agents, and employees shall be done in a good and workmanlike manner and of a first class quality and in accordance with the plans and specifications set forth on Exhibit B-3. Tenant shall not be permitted in any material way to vary its construction from the plans and specifications set forth on Exhibit B-3 without Landlord's prior written consent. Tenant shall timely pay for all work to be performed upon the Property and shall not allow a lien to attach to the Property. Tenant shall defend, indemnify and hold harmless Landlord from any and all costs, charges, liens, suits, actions, and expenses including but not limited to attorney's fees and court costs, (collectively, "Costs"), arising out of or related to: (1) Tenant's negligence or misconduct in the installation, use, operation, maintenance and presence of the Additional Equipment, Tenant's Antenna Facilities or any other equipment of Tenant or its agents, contractors or assigns, except to the extent such Costs are caused by the negligence or willful misconduct of Landlord; and (2) Tenant's, or tenant's agent's, contractor's or employee's entry or presence upon the Premises; (3) any default by Tenant under the Lease and any amendments thereto. The terms and conditions of this paragraph shall survive the expiration or earlier termination of the Lease. 3. COSTS. Tenant shall reimburse Landlord for all of Landlord's costs and expenses including but not limited to, attorney's fees, third party consultant fees, staff administrative time, and any other fees and costs incurred by Landlord in connection with the preparation and negotiation of this Fourth Amendment and any other future amendments of the Lease (collectively, "Landlord Expenses"). Tenant shall pay all Landlord Expenses within thirty (30) days after Landlord submits an invoice to Tenant for the Landlord Expenses. If Tenant fails to pay any the Landlord Expenses or any other sums owed to Landlord under the Lease or any other future amendments thereto, within thirty (30) days after Landlord submits such invoice to Tenant, Tenant shall pay to Landlord interest on such sums at the rate of fifteen percent (15%) per annum ("Interest") plus a late fee (to cover Landlord's administrative expenses with such late payment) of Two Hundred and 00/100 Dollars ($200.00) per month ("Late Fee") until all sums owed to Landlord have been paid in full. In addition to the Interest and Late Fee Tenant shall also be responsible for any attorney's fees, administrative expenses, collection costs and any other sums incurred by Landlord if Tenant fails to timely pay all sums owed to Landlord pursuant to the Lease, this Fourth Amendment and any other amendments to the Lease. Any failure to timely pay any sums owed within the applicable time periods set forth in this Fourth Amendment, the Lease or any other amendments to the Lease shall be a material default under the Lease. The terms of this paragraph shall survive the expiration or earlier termination of the Lease. 4. FAILURE TO REMOVE IMPROVEMENTS. Upon expiration or earlier termination of the Lease for any reason, Tenant shall remove its Antenna Facilities (including all Additional Equipment) from the Property on or before the date of expiration or termination, and shall repair any damage to the Property caused by such equipment, normal wear and tsar, and casualty excepted, all at Tenant's sole cost and expense, whether removed by Tenant or Landlord. Any such personal property or facilities which are not removed on or before the date this Lease terminates shall, at Landlord's option, be deemed abandoned and become the property of Landlord. In the event Tenant leaves any personal property, equipment or any portion of its Antenna Facilities on the Property without Landlord's written consent, Tenant shall reimburse Landlord for the cost of removing and disposing of or storing the same, including but not Iimited to all costs and expenses associated with Landlord's administrative time in removing the personal property. Tenant shall be responsible for paying Base Rent and all other sums owed under this Lease until such time that Landlord or Tenant has removed the Antenna Facilities from the Property. In the event Landlord attempts to collect on any unpaid sums owed by Tenant under the Lease or this Fourth Amendment or Landlord brings any other action to enforce the terms of the Lease, as amended, including, but not limited to, Tenant's removal of its Antenna Facilities, Tenant shall be responsible for all costs of collection including, but not limited to, attorneys' fees, court costs, and expert witness fees whether or not Landlord files suit against Tenant and all costs of Landlord's administrative time and expense. The terms of this Section shall survive the termination or other expiration of this Lease. 5. INCREASE IN RENT. Effective as of the date of this Fourth Amendment, the rent owed by Tenant to Landlord pursuant to the Lease shall increase by One Hundred Twenty-six and 28/100 Dollars ($126.28) per year, which shall be subject to adjustment and increases as set forth in the Lease ("Rent Increase"). The Rent Increase is a result of the Tenant leasing an additional 2.8 square feet of new space as described in this Fourth Amendment which Tenant has been utilizing without Landlord's permission. Upon execution of this Fourth Amendment, Tenant shall pay to Landlord the sum of One Hundred Twenty-six and 28/100 Dollars ($126.28) as and for the rent of the new space for the 2016 calendar year. Except as modified herein, all remaining terms regarding the Rent and any increases thereto shall remain unchanged. 6. OTHER TERMS AND CONDITIONS REMAIN. In the event of any conflict between the terms of the Lease, any other amendments and this Fourth Amendment, the terms of this Fourth Amendment shall control. Except as expressly set forth in this Fourth Amendment, the Lease and all prior amendments shall remain otherwise unmodified and remain in full force and effect. Each reference in the Lease and the Fourth Amendment to themselves shall be deemed also to refer to this Fourth Amendment and all prior amendments to the Lease. 7. RMEMNIFICATION. Tenant agrees to indemnify, defend and hold Landlord harmless from any and all claims, costs, penalties, fines, lawsuits, demands, and expenses, including attorney's fees and court costs, arising out of or related to (1) any negligence or misconduct in any entry upon the Property by Tenants agents, contractors, and employees, except to the extent caused by the negligence or willful misconduct of Landlord; (2) the presence of Tenant's Antenna Facilities, the Additional Equipment or any other equipment or personal property of Tenant upon Landlord's Property; (3) any default by Tenant under the Lease, as amended. The indemnification provisions contained in the Fourth Amendment shall be construed as additional indemnification obligations of Tenant and shall not be construed in any way to limit or eliminate any of the indemnification provisions of Tenant contained Pa in the Lease. Tenant shall not be required to indemnify Landlord from Landlord's negligence or willful misconduct. All indemnification obligations of Tenant as set forth in the Lease and this Fourth Amendment and any other amendments of the Lease shall survive the termination or expiration of the Lease. 8. LIMITATION OF LANDLORD'S LIABILITY. Landlord's liability for damages to Tenant under the Lease and this Fourth Amendment shall be limited to the actual and direct costs of equipment removal and shall specifically exclude any recovery for value of the business of Tenant as a going concern, future expectation of profits, loss of business or profit or related damages to Tenant. In no event shall Landlord be liable for any other monetary penalty or any other damages other than as set forth herein. The terms of this paragraph shall survive the termination or expiration of the Lease. 9. CROSS -DEFAULT. In the event that Tenant or any permitted assignee of Tenant defaults under any of its obligations under the terms of the Lease, this Fourth Amendment or any other amendments of the Lease, Tenant shall, at Landlord's option, be in default under all other leases or other site agreements with Landlord, including but not limited to leases of any other property owned by Landlord. If Landlord elects to exercise its right of cross - default as provided above, Tenant shall be in default under any and all other leases or other site agreements with Landlord until such time that Tenant has, to Landlord's satisfaction, cured the defaults under any and all leases and agreements with Landlord. Further, if Tenant or any permitted assignee defaults under the terms of any other leases or site agreements with Landlord, Tenant shall be in default under the terms of this Lease. 10. AS-BUILTS AND PUNCHLIST MATTERS. Tenant shall complete construction and installation of the Additional Equipment within sixty (60) days after execution of this Fourth Amendment. Within twenty (20) days after Tenant completes the construction and installation of the Additional Improvements, Tenant shall provide Landlord with "As -Built" drawings in paper and electronic format as required by Landlord and which is compatible with Landlord's existing file systems ("As-Builts"). Tenant shall also complete all punch -list items ("Punch List") within twenty (20) days after Landlord or Landlord's contractors provides the Pinch List to Tenant or Tenant's contractors. In the event that Tenant fails to provide the As-Builts or complete the Punch -List items within the time period set forth above, Tenant shall pay a daily fee to Landlord of $100 per day for each day that Tenant has not completed its obligations as set forth in the paragraph until such time as Tenant completes its obligations set forth herein. 11. SURVIVAL OF OBLIGATIONS. All of Tenant's indemnification obligations and obligations to pay rent, fees and other sums owed to Landlord under the Lease and any amendments to the Lease shall survive the expiration or earlier termination of the Lease. 12. AFFIRMATION OF LEASE. Except as set forth herein, all terms and conditions of the Lease and any prior amendments shall remain in fu11 force and effect. 13. COUNTERPARTS. This Fourth Amendment may be executed in duplicate counterparts, each of which will be deemed an original. 14. AUTHORITY. Each person signing this Fourth Amendment represents and warrants that he or she has the right, power and legal capacity to enter into this Fourth Amendment and that such signature will bind the party for who such signor signs this Fourth Amendment. 15. CONFLICT. In the event of a conflict between any terms contained this Fourth Amendment and the Lease or any other prior amendments, the terms of this Fourth Amendment shall control. 16. CAPITALIZED TERMS. All capitalized terms used but not defined herein shall have the same meanings as defined in the Lease. 17. NOTICES. Tenant's notice addresses in the Lease are deleted in their entirety and replaced with the following: If to Tenant: New Cingular Wireless PCS, LLC Attn: ?Network Real Estate Administration Re: Cell Site# MPLSMNU3191; Cell Site Name: Hwy 35E & Hwy 77 (MN) FA No.: 10104046 575 Morosgo Dr. Atlanta, GA, 30324 With a copy to: New Cingular Wireless PCS, LLC Attn: Legal Department Re: Cell Site #: MPLSMNU3191; Cell Site Name: Hwy 35E & Hwy 77 (MN) FA N'o.: 10104046 208 S. Akard Dallas, TX, 75202-4206 18. RECORDING. Tenant shall not record this Fourth Amendment or the Lease or any other Amendments to the Lease without the prior written consent of Landlord. 19. CONSTRUCTION. Landlord and Tenant agree that each of them has participated in the drafting of the Lease, all prior amendments and this Fourth Amendment (collectively the "Agreement") and that the Agreement shall not be construed against the party that drafted it. Both Landlord and Tenant acknowledge and agree that any Court interpreting the Agreement shall not construe any portion of the Agreement in favor of or against Landlord or Tenant based upon any rule of law or construction that would construe the Agreement against the party that drafted it. (The remainder ofthispaee has been intentionally Lefl blank ,Signature page to Lollow.7 :I IN WITNESS WHEREOF, the parties have caused their properly authorized representatives to execute this Fourth Amendment on the dates set forth below. LANDLORD: City of Eagan, a Minnesota municipal Corporation By: Print Name: Title: Mayor Date: By: Print Name: Title: City Clerk Date: TENANT: New Cingular Wireless PCS, LLC, a Delaware limited liability company, fka AT&T Wireless Services of Minnesota, Inc. By: Jvu /1� b� Print Name: Name. P4ar-1 kwffleisW Its: TWO, Mana"r of� tate & Construction Date: pate °—� 1 U Agenda Information Memo August 1, 2016, Eagan City Council Meeting CONSENT AGENDA T. APPROVE Cooperation Agreement with Dakota County to participate in the Dakota County Urban County Designation for CDBG, HOME and ESG funding through FY 2019 Action To Be Considered: To approve a Cooperation Agreement with Dakota County to participate in the Dakota County Urban County designation for CDBG, HOME and ESG funding through FY 2019 and authorize the Mayor to execute the appropriate documents. Facts: ➢ On May 3, the City Council authorized deferral of its Metropolitan City status with regards to CDBG funding through HUD and elected instead to participate in the Dakota County Urban County designation. ➢ This relationship has permitted the City to rely on the Dakota County CDA to coordinate a number of functions related to these programs and the documentation and compliance steps necessary to conform to HUD standards. As part of this coordination, the City of Eagan is allowed to additionally receive HOME and Emergency Solutions Grant (ESG) funds. Under a City Entitlement Status, only CDBG funds would be available. The purpose of the Cooperation Agreement is to authorize the County to cooperate with participating cities to undertake, or assist in undertaking, community renewal and lower income housing assistance activities pursuant to community development block grants as authorized in the Housing and Community Development Act of 1974. Attachments: (1) CT -1 Cooperation Agreement COOPERATION AGREEMENT FOR THE DAKOTA COUNTY COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM THIS AGREEMENT made and entered into by and between the COUNTY OF DAKOTA, State of Minnesota, hereinafter referred to as "COUNTY" and the CITY OF EAGAN, hereinafter referred to as "COOPERATING COMMUNITY", said parties to this Agreement each being governmental units of the State of Minnesota, and is made pursuant to Minnesota Statutes, Section 471.59. WITNESSETH: WHEREAS, Title I of the Housing and Community Development Act of 1974, as amended, provides for a program of community development block grants; and WHEREAS, Dakota County, Minnesota qualifies under said law as an "urban county" eligible to receive community development block grant funds; and WHEREAS, the County's population, among other factors, is a determinant of the eligibility of the County and the amount of resources which may be made available to the County to undertake activities under the afore -referenced law; and WHEREAS, part 570, Chapter V of the Title 24 of the Code of Federal Regulations set forth regulations governing the applicability and use of funds under Title I; and WHEREAS, Section 570.105, titled "qualifications as urban county" provides that computation of the County's population may include persons residing in "unincorporated areas" and in "its included parts of general local government with which it has entered into cooperative agreements to undertake or to assist in the undertaking of essential activities pursuant to community development block grants;" and WHEREAS, it is in the interest of the Cooperating Community to have its population counted together with other municipalities of Dakota County who similarly agree. NOW, THEREFORE, in consideration of the mutual covenants and promises contained in this Agreement; the parties mutually agree to the following terms and conditions. I. DEFINITIONS For the purposes of this Agreement, the terms defined in this section have the meanings given to them: A. "The Act" means the Housing and Community Development Act of 1974, Title I, of Public Law 93-383, as amended (42 USC 5301 et sea.) B. "Regulations" means the rules and regulations promulgated pursuant to the Act, including but not limited to 24 CFR Part 570. C. "HUD" means the United States Department of Housing and Urban Development. D. "Cooperating Community" means any city or township in Dakota County which has entered into a cooperative agreement which is identical to this agreement. E. "Dakota County CDA" means the Dakota County Community Development Agency which will provide administrative services for the County under this program. F. "Essential Community Development and Housing Assistance Activities" means community renewal and lower income housing activities, specifically urban renewal and publicly assisted housing. The definitions contained in 42 USC 5302 of the Act and 24 CFR 570.3 of the Regulations are incorporated herein by reference and made a part hereof. Il. PURPOSE The Cooperating Community and the County have determined that it is desirable and in the interests of its citizens that the County qualifies as an urban county within the provisions of the Act. This Agreement contemplates that identical agreements will be executed between the County and other cities and townships in Dakota County and such numbers will enable the County to so qualify under the Act. The purpose of this Agreement is to authorize the County to cooperate with the Cooperating Community to undertake, or assist in undertaking, community renewal and lower income housing assistance activities pursuant to community development block grants as authorized in the Act and the Regulations. III. TERM OF AGREEMENT The term of this Agreement is for a period commencing on the effective first day of Federal Fiscal Year 2017, and terminating no sooner than the end of Federal Fiscal Year 2019. This Agreement is extended automatically for each subsequent three-year program period unless written notice of termination to be effective at the end of the current three-year program is given by the County to the Cooperating Community or by the Cooperating Community to the County following the same schedule as the "opt out" notification requirements as established by HUD. A copy of such written notice of termination, if given by either party, shall be provided to the appropriate office of the U.S. Department of Housing and Urban Development (HUD). The County shall provide written notification to the Cooperating Community of the Community's right to "opt out" and terminate this Agreement at least thirty (30) days prior to the "opt out" date. This -Agreement shall remain in effect until the Community Development Block Grant, HOME Investment Partnership Program funds, and Emergency Solutions Grant (ESG), and program income received with respect to activities carried out during the three-year qualification period (and any successive qualification periods) are expended and the funded activities completed, and that the County and Cooperating Community cannot terminate or withdraw from the cooperation agreement while it remains in effect, Notwithstanding .any other provision of this Agreement, this Agreemerrt-shall be terminated at the end of any program year during which HUD withdraws its designation of Dakota County as an Urban County under the Act. IV. METHOD The Cooperating Community hereby agrees that it will undertake, or assist in undertaking, essential community development and housing assistance activities as described in Section I of this Agreement. The County shall prepare and submit to HUD and appropriate reviewing agencies, all necessary applications for basic grant amount under the Act. In making the application, the County shall address the goals and needs of County as developed in meetings between the Cooperating Community, its citizens and the County, and also address the Act and other relevant Minnesota and/or Federal statutes and regulations. The parties agree to cooperate fully in establishing priorities and in preparation of the application for basic grant amount. The Cooperating Community and the County agree that the County shall establish a reasonable time schedule for the development of the grant application. 2 It is anticipated by the parties that the party ultimately implementing a project funded by monies received from the grant may be either the Cooperating Community, its agent, or the Dakota County CDA. The determination of which party will implement the project will be made by the parties after consideration of the nature and scope of the project, and the ability of each party to undertake the project, though it is understood by the Cooperating Community that the County shall have final responsibility for selecting projects, submitting the Consolidated Plan to HUD, and filing annual grant requests. The County is hereby authorized to distribute to the Cooperating Community such funds as are determined appropriate for the Community to use in implementing a project. Contracts let and purchases made pursuant to a project under this Agreement shall conform to the requirements applicable to the entity undertaking the project. it is understood by the parties hereto that the County will be entering into an Administrative Services Contract with the Dakota County CDA under which the Dakota County CDA will provide those administrative services necessary to carry out obligations of the County under this Cooperation Agreement, The Cooperating Community agrees to cooperate with the Dakota County CDA to the extent necessary to achieve the purposes of this Agreement. V. SPECIAL PROVISIONS Nothing in this Agreement shall be construed to prevent or otherwise modify or abrogate the right of the Cooperating Community or the County to submit individual applications for discretionary funds in the event County does not receive designation as an urban county entity under the Act. The Cooperating Community and the County mutually agree to indemnify and hold harmless each other from any claims, losses, costs, expenses or damages resulting from the acts or omissions of their respective officers, agents and employees relating to activities conducted by either under this Agreement, the Act or the Regulations. In the event that there is a revision of the Act, Regulations, and/or the provisions of the Urban County Qualification Notice in effect at the time of renewal of this Agreement which would make this Agreement out of compliance with the Act, Regulations, or Urban County Qualification Notice, both parties will review this Agreement to renegotiate those items necessary to bring the Agreement into compliance. Both parties understand and agree that the refusal to renegotiate this Agreement will result in effective termination of the Agreement as of the date it is no longer in compliance with the Act and/or Regulations as amended. All funds received by the County under the Act shall be deposited in the County treasury. The Cooperating Community and the County shall maintain financial and other records and accounts in accordance with requirements of the Act and Regulations. Such records and accounts will be in such form as to permit reports required of the County to be prepared therefrom and to permit the tracing of grant funds and program income to final expenditure. The Cooperating Community and the County agree to make available all records and accounts with respect to matters covered by this Agreement at all reasonable times to their respective personnel and duly authorized federal officials. Such records shall be retained as provided by law, but in no event for a period of less than three years from the date of completion of any activity funded under the Act or less than three years from the last receipt of program income resulting from activity implementation. The County shall perform all audits of the basic amounts and resulting program income as required under the Act and Regulations. The parties mutually agree to take all required actions to comply with the provisions of the National Environmental Policy Act of 1969, Title VI of the Civil Rights Act of 1964, Title VIII of the Civil Rights Act of 1968, Executive Order 11988, Section 109 of the Housing and Community Development Act of 1974 and all other applicable requirements of the Act and Regulations in the use of basic grant amounts. Nothing in this Article shall be construed to lessen or abrogate the County's responsibility to assume all obligations of an applicant under the Act, including the development of applications pursuant to 24 CFR 570.300 et seq. The parties further agree to take all actions necessary to assure compliance with the County's certification required by Section 104 (b) of Title I of the Housing and Community Development Act of 1974, as amended, regarding Title VI of the Civil Rights Act of 1964, the Fair Housing Act, and affirmatively furthering fair housing, They also agree to assure compliance with section 109 of Title I of the Housing and Community Development Act of 1974 (which incorporates Section 504 of the Rehabilitation Act of 1973 and the Age Discrimination Act of 1975), the Americans with Disabilities Act of 1990, and other applicable laws. They also agree that the County shall not fund activities in, or in support of, a unit of general local government that does not affirmatively further fair housing within its own jurisdictions or that impedes the County's actions to comply with its fair housing certification. The parties further agree that pursuant to 24 CFR 570.501 (b), the Cooperating Community is subject to the same requirements applicable to subrecipients, including a written agreement as set forth in 24 CFR 570.503. Such agreements are only entered into when a Cooperating Community chooses to propose a project and actually will receive funds from the County's entitlement allocation. The parties further agree that the Cooperating Community has adopted and is enforcing; 1, A policy prohibiting the use of excessive force by law enforcement agencies within its jurisdiction against any individuals engaged in non-violent civil rights demonstrations; and 2. A policy of enforcing applicable State and local laws against physically barring entrance to or exit from a facility or location which is the subject of such non-violent civil rights demonstrations within jurisdictions. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed. APPROVED AS TO FORM: Assistant County Attorney Date: -7-11—Zof6 CITY OF EAGAN By: Its: Date: And: Its: Date: COUNTY OF DAKOTA, STATE OF MINNESOTA By: I N Its: Chair of the Date: Attested By: Jeni Reynolds Administrative Coordinator to the Board SUPPLEMENT TO THE COOPERATION AGREEMENT FOR THE DAKOTA COUNTY COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM THIS AGREEMENT, made and entered into and between the COUNTY OF DAKOTA, State of Minnesota, and the CITY OF EAGAN, (hereinafter "COUNTY" and "COOPERATING COMMUNITY", respectively) said parties to this Agreement each being governmental units of the State of Minnesota, and is made pursuant to Minnesota Statutes Section 471.59. WITNESSTH: WHEREAS, Title iI of the Cranston — Gonzales National Affordable Housing Act of 1990 (42 U.S.C. 12701 et seq. as amended) provides for program known as the HOME Investment Partnership Program; and, WHEREAS, Dakota County, Minnesota qualifies under said law as a member of the HOME Consortium formed by Anoka, Dakota, Ramsey and Washington Counties, and the Cities of Coon Rapids in Anoka County and Woodbury in Washington County; and, WHEREAS, part 92 of Title 24 of the Code of Federal Regulations sets forth regulations governing the applicability and use of funds under Title 11; and WHERAS, the governing regulations require that units of local government enter into a cooperation agreement with the County for participation in the HOME Program, which shall be the same cooperation agreement participation in the Community Development Block Grant Program; NOW, THEREFORE, the parties mutually agree to the following terms and conditions. I. The following terms defined in the Cooperation Agreement for the Dakota County Community Development Block Grant Program shall have the meaning contained herein, in addition to the meaning given in that agreement: A. "The Act" means the HOME Investment Partnership Act, Title 11 of the Cranston - Gonzales National Affordable Housing Act, 42 U.S.C. 12701 et seq., as amended. B. "Regulations" means those regulations found at 24 CFR Part 92, as amended. II. The Definitions contained in the Act and in the Regulations are incorporated herein by reference and are made a part hereof. Ill. The purpose of this Agreement is to authorize the County to cooperate with the Cooperating Community in undertaking, or assisting in undertaking, the activity as authorized in the Act and in the Regulations. IV. By executing this Agreement, the Cooperating Community understands that it: A. May not apply for grants from appropriations under the Small Cities or State Community Development Block Grant Programs for fiscal years during the period in which it participates in the County's Community Development Block Grant Program; and, B. May receive a formula allocation under the HOME Program only through the County, and cannot form a HOME Consortium for participation in the Program except through the County, during the period in which it participates in the County's Community Development Block Grant Program. This does not preclude the urban county or a unit of government participating with the urban county from applying to the State for HOME funds, if the State allows. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed. APPROVED AS TO FORM: COUNTY OF DAKOTA, STATE OF MINNESOTA a By: Assistant County Attorney Its: Eha4iiF of th a ard Date: 7- //- 06IF4 CITY OF EAGAN By: Its: Date:. And: Its: Date: Date: -7'- j 2 -i �o Attested By: `"S� Jen! Reynolds Administrative Coordinator to the Board 2 SECOND SUPPLEMENT TO THE COOPERATION AGREEMENT FOR THE DAKOTA COUNTY COMMUNITY DEVELOPMENTBLOCK GRANT PROGRAM THIS AGREEMENT made and entered into by and between the COUNTY OF DAKOTA, State of Minnesota, hereinafter referred to as "COUNTY" and the CITY OF EAGAN, hereinafter referred to as "COOPERATING COMMUNITY", said parties to this Agreement each being governmental units of the State of Minnesota, and is made pursuant to Minnesota Statutes Section 471.59. WITNESSETH: WHEREAS, The McKinney-Vento Homeless Assistance Act of 1987, as amended by the Homeless Emergency Assistance and Rapid Transition to Housing (HEARTH) Act of 2009 provides for the program known as the Emergency Solutions Grant (ESG); and WHEREAS, the ESG Program supersedes the regulations governing the applicability and use of funds under the Emergency Shelter Grant Program as defined in part 576 of Title 24 of the Code of Federal Regulations; and WHEREAS, the Secretary has been directed to allocate ESG Program assistance to metropolitan cities, urban counties, and States (for distribution to local governments and private nonprofit organizations in the States); and WHEREAS, the County of Dakota is defined as an urban county by HUD and is eligible for CDBG, HOME, and ESG funds; and WHEREAS, assistance provided under the ESG Program may be used for the following activities: (1) The renovation, major rehabilitation, or conversion of buildings to be used as emergency shelters. (2) The provision of essential services related to emergency shelter or street outreach, including services concerned with employment, health, education, family support services for homeless youth, substance abuse services, victim services, or mental health services, if a. such essential services have not been provided by the local government during any part of the immediately preceding 12 -month period or the Secretary determines that the local government is in a severe financial deficit; or -- b. the use of assistance under this subtitle would complement the provision of those essential services. (3) Maintenance, operation, insurance, provision of utilities, and provision of furnishings related to emergency shelter. (4) Provision of rental assistance to provide short-term, or medium-term housing to homeless individuals or families or individuals or families at risk of homelessness. Such rental assistance may include tenant -based or project -based rental assistance. (5) Housing relocation or stabilization services for homeless individuals or families or individuals or families at risk of homelessness, including housing search, mediation or outreach to property owners, legal services, credit repair, providing security or utility deposits, utility payments, rental assistance for a final month at a location, assistance with moving costs, or other activities that are effective at: a. stabilizing individuals and families in their current housing; or b. quickly moving such individuals and families to other permanent housing; and WHEREAS, the governing regulations require that units of local government enter into a Cooperation Agreement with the County for participation in the ESG Program, which shall be the same Cooperation Agreement participation in the Community Development Block Grant Program. NOW, THEREFORE, the parties mutually agree to the following terms and conditions. I. DEFINITIONS The following terms defined in the Cooperation Agreement for the Dakota County Community Development Block Grant Program shall have the meaning contained herein, in addition to the meaning given in that Agreement: A. "ESG' — Originally known as the Emergency Shelter Grant Program and now means Emergency Solutions Grant Program. B. "Secretary" - The term means the Secretary of Housing and Urban Development. C. "Urban County" — The term means any county within a metropolitan area which i. is authorized under State law to undertake essential community development and housing assistance activities in its unincorporated areas, if any, which are not units of general local government; and ii. either -- 1, has a population of 200,000 or more (excluding the population of metropolitan cities therein) and has a combined population of 100,000 or more (excluding the population of metropolitan cities therein) in such unincorporated areas and in its included units of general local government (and in the case of counties having a combined population of less than 200,000, the areas and units of general local government must include the areas and units of general local government which in the aggregate have the preponderance of the persons of low and moderate income who reside in the county) a. in which it has authority to undertake essential community development and housing assistance activities and which do not elect to have their population excluded, or b. with which it has entered into cooperation agreements to undertake or to assist in the undertaking of essential community development and housing assistance activities; or 2. has a population in excess of 100,000, a population density of at least 5,000 persons per square mile, and contains within its boundaries no incorporated places as defined by the United States Bureau of the Census. 2 Il. PURPOSE The purpose of this Second Supplement to the Cooperation Agreement is to authorize the County to cooperate with the Cooperating Community in undertaking, or assisting in undertaking, the ESG Program to assist individuals and families quickly regain stability in permanent housing after experiencing a housing crisis or homelessness. Ill. METHOD By executing this Second Supplement to the Cooperation Agreement, the Cooperating Community understands that it is a participant in the ESG program and may only receive a formula allocation under the ESG Program as a part of the urban county, although this does not preclude the urban county or a unit of government within the urban county from applying to the State for ESG funds, if the State allows. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed. APPROVED AS TO FORM: COUNTY OF DAKOTA, STATE F MINNESOTA 0 By: Assistant County Attorney Its: Chair of th Bard Date: Date: 11L- 1 Attested By: ✓l� Jeni Reynolds Administrative Coordinator to the Board CITY OF EAGAN By: Its: Date: And: Its: Date: Agenda Information Memo August 1, 2016, Eagan City Council Meeting CONSENT AGENDA U. Approve A Resolution To Accept A Donation For Eagan Food On 4 Wheels Food Truck Festival From Central Park Commons Action To Be Considered: To approve a resolution to accept an event partnership donation for Eagan Food On 4 Wheels Food Truck Festival from Central Park Commons and direct the Mayor and City Clerk to sign the appropriate documents. Cash Donation: ➢ $1,500 from Central Park Commons Budget Adjustment: ➢ The $1,500 Central Park Commons donation was a budgeted item in 3061.4663; no budget adjustment necessary. Facts: ➢ The Food On 4 Wheels Food Truck Festival was held for the first time in 2014 attracting over 8,000 visitors. ➢ Central Park Commons is scheduled to open their first retail store, Hy Vee, near the time of the Eagan Food On 4 Wheels Food Truck Festival. Attachments: (2) CU -1 Resolution CU -2 Partnership Agreement — Central Park Commons CITY OF EAGAN RESOLUTION TO ACCEPT DONATION FOR UPCOMING 2016 EAGAN FOOD ON 4 WHEELS FOOD TRUCK FESTIVAL EVENT FROM CENTRAL PARK COMMONS WHEREAS, Eagan Parks and Recreation offers the Eagan Food On 4 Wheels Food Truck Festival on September 10, 2016 that offer partnership opportunities; and WHEREAS, Central Park Commons expressed an interest in partnering with Eagan Parks & Recreation for the Eagan Food On 4Wheels Food Truck Festival; and WHEREAS, Central Park Commons will to donate $1,500 to Eagan Food On 4Wheels Food Truck Festival and; NOW, THEREFORE, BE IT RESOLVED that the Eagan City Council does hereby accept the donation of $1,500 to support Eagan Food On 4 Wheels Food Truck Festival. Motion made by: Seconded by: Those in favor: Those against: Dated 8-1-2016 CITY OF EAGAN CITY COUNCIL By: Mayor Attest: City Clerk CERTIFICATION I, Christina M.Scipioni, City Clerk for the City of Eagan, Dakota County, Minnesota, do hereby certify that the foregoing resolution was duly passed and adopted by the City Council of the City of Eagan, Dakota County, Minnesota, in a regular meeting thereof assembled the 1st day of August, 2016. City Clerk 2016 Eagan Parks & Recreation Food On 4 Wheels Food Truck Festival Partnership Central Park Commons - $1,500 Total Promotional Partnership Summary: In July 2016, Central Park Commons approached the City of Eagan with interest in partnering at the Food On 4 Wheels Food Truck Festival as the event coincides with the opening of Central Park Commons' first retail store, Hy Vee, followed by other new businesses. Central Park Commons' location adjacent to the Eagan Festival Grounds makes this a natural partnership. Event Summary: The Food On 4 Wheels is a Food Truck Festival event, first held in the City of Eagan in 2014, exceeded attendance expectations by 50% with more than 8,000 people attending. In 2016, the event has expanded the length of the event, added more food trucks, additional seating and booked Boogie Wonderland, a popular headliner band with a big attendance draw. 2016 Event Plans 0 23+ food trucks expected; a very popular attendance draw. The last Eagan food truck event attracted over 8,000 attendees. 0 Beer, wine & bottled water area at the Festival Grounds Pavilion, contracted out to a provider. 0 Two entertainment bands will perform at the Eagan Rotary Band Shell. Boogie Wonderland and the band Armadillo Jump are contracted to perform. Both are very popular bands that have a big attendance draw. Awards: The 2014 event earned the Minnesota Recreation & Parks Association Award of Excellence. Event Date: Saturday, September 10, 2016 Event Time: Food Trucks 3:00 — 7:30 p.m. Music 3:00 — 8:00 p.m. Event set up begins at Noon Event Location: Eagan Central Park / Eagan Festival Grounds, 1501 Central Parkway, Eagan Event Target Audience: This event attracts adults 18+. It is primarily an adult event. Eagan Parks and Recreation Department Central Park Commons Partnership Proposal 2016 TOTAL PARNTERSHIP AMOUNT - $1,500 Eagan Food On 4 Wheels Food Truck Event - $1,500 Central Park Commons' Proposed Partnership Role: This will be Central Park Commons' first year as an event partner with the City of Eagan Parks & Recreation Dept. Central Park Commons marketing staff will coordinate Central Park Commons businesses to share three (3) 10 x 10 booth spaces with a mix of their businesses, including Hy -Vee, the first scheduled tenant to open shared booth space. The purpose of the booth space at the event will be to promote the grand opening of Central Park Commons, Hy Vee and other Central Park Commons businesses who choose to participate. • Note: The Urgency Room, located in Eagan has already signed on as an event partner representing the medical industry. • Central Park Commons will provide the necessary high resolution logos to use in the marketing materials for the event designed by the City of Eagan. • Central Park Commons and the Central Park Commons businesses participating in the Central Park Commons shared booth at the event may if they wish provide promotional items featuring their organization during their booth visits at the event as they are able and in the quantities they choose. • Central Park Commons will provide a check for $1,500 their financial partnership for the Eagan Food On 4 Wheels Food Truck Event paid no later than September 9, 2016. The City of Eagan will send an invoice to Central Park Commons. Payment should be made payable to the City of Eagan and submitted to: Kerry Phillips, Eagan Parks & Recreation, 3830 Pilot Knob Rd., Eagan, MN 55122. Eagan Food On 4 Wheels Event • Central Park Commons will provide an interactive experience at Eagan Food On 4 Wheels on the Saturday, September 10, 2016 from 3 — 8:00 p.m. with three (3) 10 x 10 size booths located on the Eagan Festival Grounds in a high traffic area of the event site. o Approved interactive booth experiences may include giveaway promotional items, contests/prize drawings, collection of attended contact information or other activity upon approval by event coordinator. Purpose of booth is to allow Central Park Commons and their approved businesses with the opportunity to engage with event attendees to promote the development's grand opening and opening of the new retailers and businesses at that location. o Event Date - Saturday, September 10, 2016 from 3 — 8 p.m. at the Eagan Festival Grounds ■ Set up begins Noon; ready to open booth by 2:45 p.m. ■ Event begins 3:00 p.m. ■ Food Trucks 3:00 — 7:30 p.m. ■ Music 3:00 — 8:00 p.m. ■ Clean up from 8 — 9 p.m. • Central Park Commons or their participating retailers including Hy Vee will provide their own 10 x 10 canopy tents and tent weights for the event. The City of Eagan will provide three 8 ft. table, 2 chairs. Additional tables for under the canopy tents are available upon request. • Central Park Commons will be identified on all Food On 4 Wheel Food Truck Festival event collateral as a partner with logo and/or name listed depending on space available on collateral. Collateral includes: o 4" x 9" full color, double sided rack cards (distributed at City of Eagan facilities, local businesses and cross promoted at other City of Eagan events prior to event date) o 8 1/2" x 11" full color flyers (distributed in community and on City of Eagan website as a downloadable flyer file). o 11" x 17" full color posters (distributed in community) • Central Park Commons logo will be included in the City of Eagan's Discover Parks & Recreation Program guide sent to 26,000+ Eagan households (Fall 2016 issue) as part of the event advertisement event description. • Central Park Commons logo or name will be included in Food On 4 Wheels newspaper ads in Twin Cities focused newspapers (if secured) and Sun Thisweek Newspapers (Eagan/Burnsville area) listed as an event partner. • Central Park Commons will be mentioned as an event partner/sponsor in event related press releases. • Central Park Commons will provide the City of Eagan a high resolution .JPG logo file in full color and one -color for related partnership/sponsorship exposure as detailed in agreement. Additional file types accepted include: .EPS, .TIF, .PDF. .JPG and .EPS are the preferred file types. Contact: Kerry Phillips — Recreation Supervisor Office: (651) 675-5525 Cell: (651) 402-0256 Email: kphillips@cityofeagan.com Trade Agreement Disclaimer Ownership of Promotional Materials: Any plan, idea and all promotional materials created by Central Park Commons or Eagan Parks and Recreation Department shall be and will remain the property of both parties. Agreement The City of Eagan Parks and Recreation Department and Central Park Commons agree to the terms of the sponsor partnership as outlined above. Mayor Mike Maguire Central Park Commons Representative --End-- Date Date Agenda Information Memo August 1, 2016, Eagan City Council Meeting CONSENT AGENDA V. Adopt A Resolution Accepting A Donation From The Eagan Citizen's Crime Prevention Association (ECCPA) Action To Be Considered: Adopt a resolution accepting a $500.00 donation from the Eagan Citizen's Crime Prevention Association that will be used to reimburse the City for expenses related to the police department purchasing a camera. Facts: ➢ The Eagan Citizen's Crime Prevention Association is forwarding a $500.00 donation to reimburse the City for expenses related to the police department's purchase of a "360Fly Camera". ➢ The camera will be used to enhance the department's social media efforts related to public interaction and education. Attachments: (1) CV -1 Resolution CITY OF EAGAN RESOLUTION ACCEPTING DONATION TO THE CITY OF EAGAN Eagan Citizen's Crime Prevention Association WHEREAS, the City Council of the City of Eagan encourages public donations to help defray the costs to the general public of providing services in Eagan; and WHEREAS, the Eagan Citizen's Crime Prevention Association has presented the police department with a donation in the amount of $500.00. The funds will be used to reimburse the City for expenses related to a camera system. WHEREAS, Minnesota Statutes §465.03 requires that all gifts and donations of real or personal property be accepted only with the adoption of a resolution approved by two-thirds of the members of the City Council; and NOW, THEREFORE, BE IT RESOLVED by the City Council of Eagan, Dakota County, Minnesota, that the donation is hereby accepted for use by the City; BE IT FURTHER RESOLVED, that the City sincerely thanks the Eagan Citizen's Crime Prevention Association for the gracious and generous donation. ADOPTED this 1st day of August, 2016. CITY OF EAGAN CITY COUNCIL By: It's Mayor Attest: It's Clerk Motion by: Seconded by: Those in Favor: Those Against: Date: Agenda Information Memo August 1, 2016 City Council Meeting CONSENT AGENDA W. Authorize the application for a grant from the Metropolitan Regional Arts Council in the amount of $10,000 for an Organizational Development Grant Action to Be Considered: Authorize the submission of a grant application to the Metropolitan Regional Arts Council in the amount of $10,000 for an Organizational Grant. Facts: ➢ Metropolitan Regional Arts Council (MRAC) has Organizational Development grants for up to $10,000 for projects designed to strengthen the organization, encourage significant and long term impact and/or develop new systems. ➢ Grants are awarded with a 25% cash match. ($2,500). This match has been included in the 2017 budget draft. Additionally, staff salaries for project management of the program are included in the cash match. ➢ The arts continue to expand in Eagan, including activities managed by Eagan Art House staff, including: 0 150% increase in Eagan Art House participation since 2008. o Implementation of Public Art policy for the City of Eagan in 2015 and Inclusion of public art selection to the Advisory Parks & Recreation Commission duties. o Current consultancy with Forecast Public Art to assist with inclusion of public art in 2018 Comprehensive Guide. o Over 12 visual art exhibitions with 6 location partners. Exhibits feature over 75 local artists annually. o Eagan Artist Connect artist networking group expanded from 5 to 50 artists in 2 years. ➢ The arts continue to expand in the Eagan Community: o Significant response from the community in the Eagan Forward process, resulting in 2 arts -related strategies. o 10% annual growth of attendees at Eagan Art Festival. o Continued growth of participants and attendees in other arts groups, including Eagan Theater Company, Eagan Men's Chorus, Eagan Women of Note. o Formation of new arts non-profit, Art Works Eagan in 2016. 200 attendees at their kickoff event on July 15tH o Continued impact of Caponi Art Park to the community. They are the 2016 recipient of the Arts Achievement Award from the Metropolitan Regional Arts Council. ➢ The grant funding will support the following: o Strategic planning and visioning with City of Eagan staff, partners and stakeholders to formulate actions plans for sustainability of the arts in Eagan. o Convening of Eagan arts organizations to an Arts Summit to discuss collaboration and future partnership opportunities and expectations. o Define role of the City in arts programming and arts visioning. o Discuss how to best connect with the community and reach underserved populations through the arts. o Provide examples of comparable cities with multi -disciplinary arts with public/private arts partnerships. o Contract with professional consultant to facilitate the projects. o The project will take place from January through October 2017. ➢ The grant will be submitted on September 12, 2016. Attachments: (0) Agenda Information Memo August 1, 2016 Eagan City Council Meeting CTPi*1UffTCIV►I7_1 X. Project 1095/ County Project 31-76 Pilot Knob Road Corridor Improvements Request for Extension of Working Hours Action To Be Considered: Authorize a variance to the Construction Activity Noise Regulations to exempt Max Steininger, Inc. for roadway improvements on Pilot Knob Road/ CSAH 31 (Central Parkway to Yankee Doodle Road) between 6:00 a.m. and 7:00 a.m., Monday through Saturday, from August 2, 2016, through November 30, 2016, as well as from 10:00 pm, Friday, August 19, 2016, through 5:00 am, Monday, August 22, 2016, and from 10:00 pm, 'Friday, August 26, 2016, through 5:00 am Monday, August 29, 2016. Facts: ➢ The Dakota County Transportation Department has contracted with Max Steininger, Inc. for roadway expansion improvements on Pilot Knob Road/ CSAH 31 (Central Parkway to Yankee Doodle Road) in north -central Eagan. The City of Eagan is participating financially in the rehabilitation through a joint powers agreement with the County. ➢ Section 10.37 of the City Code prohibits construction activity or the use of tools and equipment for construction activity between the hours of 10:00 p.m. and 7:00 a.m. within the City. ➢ On July 27, 2016, County and City staff received a request from Max Steininger, Inc., the contractor for Dakota County, requesting that Max Steininger crews be allowed to work from 6:00 a.m. to 7:00 a.m. Monday through Saturday from August 2 through November 30, and throughout the weekends of August 19-22 and August 26-29, 2016. ➢ The purpose of the request is to limit the length of impact of the construction activity upon the traveling public and adjacent properties along this busy stretch of roadway, and to complete the project within the 2016 construction season. ➢ The City Council has approved numerous previous similar contractor requests to reduce the impact (number of days) of the construction activity. Attachments (2) CX -1 Location Map CX -2 Contractor Request 8 :1- 1 DIFFLEY RD. w a DOODLE • RD. r� a UJ U.IE�] )ECLIFF ROAD Cite of Eagan MENDOTA HEIGHTS 1494 Construction Location for Proposed Variance YANKEE(- DOODLE • RD. r� LONE OAK RD. u.i a z 0 c� z W J 43 J " O a --CLIFF ROAD�--,,�_ r .. Proposed Variance to Location Map Construction Activity Noise Regs. Pilot Knob Road Improvements August 1, 2016 S�`EINING;ER MIS I N C O R P O R A I E D E X C A V A T I O N • DEMO LITI ON • S H O R I N G July 27, 2016 City Of Eagan 3830 Pilot Knob Road Eagan, MN '55122 Attention: Mr. John Gorder Reference: Pilot Knob Road project, CSAH 31 (From 800 ft North of 1-35 E to 600 ft North of Northwood/Central Parkway, Eagan, MN. Dear Mr. Gorder: As you know, currently this project is experiencing utility relocation delays. Since, project has tight deadlines that county may still would like to achieve, we may be directed to accelerate or take it upon ourselves to do so. We would appreciate if our working hours are not restricted by 7am to 7pm on this project. Kindly approve our request for extended working hrs 6am to 10 pm, Monday thru Saturday from now to Nov 30, 2016. Please know that our request does not imply that we will be working 6am to l Open everyday but would like the flexibility to do so if directed. In addition to that, we will attempt to close Marice Dr. and the Wells Fargo intersection on the east side, for the weekend of August 19th. This means that these intersections will be closed starting IOpm on Friday the 19th and will be open by no later than Monday, August'22 by 5am. For the weekend, Friday, August 26 the following week, we will be closing Norwest CT at 1 Opm and will open it no later than 5am, Monday August 29th. Please note that these two weekends the, request is to work through without any working hours restrictions. Chances are that we will get everything done Saturday but if something falls apart we have time to address it during that weekend. If you have any questions, please feel free to contact me. We will keep the City informed on schedule .updates in our weekly meetings that are held at 1 pm every Wednesdays at the job trailer. We appreciate the opportunity to work in the City again. S' cerely, Bobby Kathuria Max Steininger, Inc. 3050 LEXINGTON AVENUE scum • EAGAN, MPNNESOTA 55121 • PHONE 651 454-6620 • FAX 651 454-6716 EEO/AA EMPLOYER Agenda Information Memo August 1, 2016 Eagan City Council Meeting CONSENTAGENDA Y. Comprehensive Guide Plan Amendment & Rezoning — City of Eagan Actions To Be Considered: Approve a Comprehensive Guide Plan Amendment to change the land use designation from Park (P) to Limited Industrial (IND) and a Rezoning from Park (P) to Limited Industrial (1-1) for Outlot I, Gopher Eagan Industrial Park 2nd Addition. Required Vote For Approval: Majority of Council Members Present Facts: ➢ The City Council reviewed the proposal and directed staff to submit the Comprehensive Guide Plan Amendment to the Metropolitan Council for review and approval on June 7, 2016. ➢ Staff was notified on July 27, 2016 that the Metropolitan Council had completed their review, determined no further review or action was necessary and that the City could place the amendment into effect. ➢ The City was approached last year by Gerten's, the operator of the adjacent composting business on outlots owned by Gopher Resources, about acquiring the subject property in order to insure the ability to continue the composting operation. ➢ At their regular meeting of May 3, 2016, the City Council directed staff to initiate a Land Use Plan Amendment, Rezoning and Ordinance Amendment. Additionally, they approved the purchase agreement and directed the APC to review the conveyance in relation to the Comprehensive Plan. ➢ The APC held the Public Hearing on May 24 and they are recommending approval of the Guide Plan Amendment and Rezoning. They also affirmed the sale is consistent with the proposed Comprehensive Plan Amendment. Attachments: (5) CY-1 Location Map CY-2 May 24, 2016 APC Minutes CY-3 Planning Report CY-4 Exhibits CY-5 Met Council Approval Letter Advisory planning Commission May 24, 2016 Page 15 of 17 C. City of Eagan Properly Applicant Name: City of Eagan, City of Eagan Location: 805 Yankee Doodle Road; Outlot I, Gopher Eagan Industrial Park 2nd Addition Application: Comprehensive Guide Plan Amendment A Comprehensive Guide Plan Amendment from P, Park to IND, Limited Industrial. File Number: 11 -CG -02-05-16 Application: Rezoning A Rezoning of approximately 12 acres from P, Park to 11, Limited Industrial. File Number: 11-RZ-05-05-16 City Planner Ridley introduced this item and highlighted the information presented in the City Staff report dated May 19, 2016. Chair Filipi opened the public hearing. There being no public comment, Chair Filipi closed the public hearing and turned the discussion back to the Commission. Member Vanderpoel questioned if the subject site was the City's dog park location. City Planner explained it was not. Member Sagstetter moved, Member Woebke seconded a motion to recommend approval of a Comprehensive Plan Amendment from Park (P) to Limited Industrial (IND). All voted in favor. Motion carried 7-0. Member Sagstetter moved, Member Woebke seconded a motion to recommend approval of a Rezoning from Park (P) to Limited Industrial (1-1) for a 12 acre parcel. All voted in favor, Motion carried 7-0. PLANNING REPORT CITY OF EAGAN REPORT DATE: May 19, 2016 CASE: 11 -CG -02-05-16 11-RZ-05-05-16 APPLICANT: City of Eagan HEARING DATE: May 24, 2016 PROPERTY OWNER: Same PREPARED BY: Michael J. Ridley, AICP REQUEST: Comprehensive Guide Plan Amendment & Rezoning LOCATION: 805 Yankee Doodle Road COMPREHENSIVE PLAN: Limited Industrial — IND ZONING: Park — P SUMMARY OF REQUEST The City of Eagan is requesting approval of a Comprehensive Plan Amendment from Park (P) to Limited Industrial (IND) and Rezoning from Park (P) to Limited Industrial (I-1) for an approximately 12 acre undeveloped parcel currently platted as Outlot I, Gopher Eagan Industrial Park 2"a Addition located at 805 Yankee Doodle Road. BACKGROUNDIHISTORY The subject parcel was platted in September 1988 and remains undeveloped. The City was approached last year by Gerten's, the operator of the adjacent composting business on Outlot H & G, about acquiring the property in order to insure the ability to continue the composting operation. Outlots H & G are owned by Gopher Resources and Gerten's leases the land and operates under an Interim Use Permit (IUP). The City Council indicated their willingness to sell the property and re -guide and rezone Outlot I earlier this year. A value for the parcel was established by Dakota County and a Purchase Agreement has been prepared. The property had gone tax forfeit prior to the City acquiring it a number of years ago; as such, the City is listed as owner but any payment from a sale will go to Dakota County. The proposed sale will put the site back on the tax rolls. At their regular meeting of May 3, 2016, the City Council directed staff to initiate a Land Use Plan Amendment, Rezoning and Ordinance Amendment. Additionally, they approved the Planning Report — Guide Plan Amendment & Rezoning May 24, 2016 Page 2 purchase agreement and directed the APC to review the conveyance in relation to the Comprehensive Plan. Part and parcel with the Comprehensive Plan Amendment and Rezoning, the City is also proposing an Ordinance Amendment to provide for composting as a Conditional Use in the I-1 Zoning District. This is a request by Gerten's due to the uncertainty presented by an IUP. EXISTING CONDITIONS The undeveloped site contains a wetland in the southwest corner and is heavily wooded with significant topography (up to 40' of grade change) generally on the northern half of the site. EVALUATION OF REQUEST The proposed Land Use amendment and rezoning are consistent with zoning and uses in the area. The subject site is adjacent to other Industrial zoned properties to the west and the Gopher Resources Industrial PD zoned properties to the east. SUMMARY/CONCLUSION The City Council indicated their willingness to sell the property, re -guide and rezone Outlot I earlier this year. The proposed sale will put the site back on the tax rolls. ACTIONS TO BE CONSIDERED To recommend approval of a Comprehensive Plan Amendment from Parks (P) to Limited Industrial (IND) for a 12 acre undeveloped parcel located at 805 Yankee Doodle Road. To recommend approval of a Rezoning from Park (P) to Limited Industrial (I-1) for a 12 acre parcel located at 805 Yankee Doodle Road. To affirm that the sale of Outlot I, Gopher Eagan Industrial Park 2nd Addition to GLG Properties (Gertens) is consistent with the proposed Comprehensive Plan Amendment. JUMBER DRAWING NUMBffi _ DRAWING NUMBER � DRAWING N wxNaams�aunal . cn�nworeu � ruvwlumMmaa+ • rtme,cnxmzm wNNvnoxdvevarl 41 4 _ '3NI'1 1171dW n } 9 sl � am '39D'LZ'dAL •zl � .50,[0. 5 n011a35 30 %i ms 314 io % 35 3Ht i4 3NI1143M 9H1 ON4 ZI NOI17i4 iv %i MS dLL io 6/I M5 3NL io 3NI1 litl3�� ^� S 0 � N � � ® D F N cr a N N J q up � NlioN n S h: Icea'vls VY' \\JJ 'm ----�...:. Nfzc' L4'a18 9 , ^3`3 � 3 � c ��.■///---®A/ �,/ L- 4z'3hd lLi dML'11 No z3S io yl 9Y 3NG i0 3NN lstll ggS v� ra�dN p � � � �III �i 3N10M 4Z'Shb'LZ JMl'zl N°LL�3S do %IMS 3HL l03NIt 153M 4 v � 2 N V - � 3 pl 5!4, 1 �4Z'3h'LIL'dAll'II NOLL"/3i do%�I3S 3N1 i0 z/1.33N1 d0 YI"31N1 ii 3M1 AHMbvli m s r`Cnl i✓ 0. 1\1 i 'gJ.l.,' .3,V7NVFj lV3 41 July 27, 2016 Mr. Michael Ridley City of Eagan 3820 Pilot Knob Road Eagan, MN 55122 RE: City of Eagan, Comprehensive Plan Amendment - Administrative Review Metropolitan Council Review File No. 20606-19 Metropolitan Council District No, 15 Dear Mr. Ridley: We received the City's Outlot I, Gopher Eagan Industrial Park 2 amendment on July 12, 2016. The amendment reguides 12 acres from Park to Limited Industrial The proposal is located at 805 Yankee Doodle Road. Council staff finds the amendment meets the Comprehensive Plan Amendment Administrative Review Guidelines revised by the Council on July 28, 2010. The proposed amendment does not affect official forecasts or the City's ability to accommodate its share of the region's affordable housing need. Therefore, the Council will waive further review and action; and the City may place this amendment into effect. The amendment, explanatory materials, and the information submission form will be appended to the City's Plan in the Council's files. If you have any questions about this review, contact Patrick Boylan, Principal Reviewer, at 651-602-1438. Sincerely, ,�- I,'sa ' eth Baraja ;Manager Local Planning ssistance CC: Steve O'Brien, Minnesota Housing Tod Sherman, Development Reviews Coordinator, MnDOT Metro Division Steven Chavez, Metropolitan Council District 15 Patrick Boylan Raya Esmaeili, Reviews Coordinator N: ICommDevILPAIConimunitieslEaganlLetterslEagan 2016 CPA Outlol 1 Gopher Eagan Industrial Park 2 20606-19 Admin Reviemdocx I METROPOLITAN C O U N C I L Agenda Information Memo August 1, 2016 Eagan City Council Meeting PUBLIC HEARING A. Approve A Business Subsidy Pursuant To Minnesota Statutes Sections 116J.993 To 116J.995 For J & J Solutions, Inc. D/B/A Corvida Medical, Inc. Action To Be Considered: To APPROVE a resolution authorizing a business subsidy pursuant to Minnesota Statutes Sections 116J.993 to 116J.995, a Grant Contract, a Minnesota Investment Fund Loan and other related documents for J & J Solutions, Inc. d/b/a Corvida Medical, Inc., and authorize the Mayor and City Administrator to execute the same. Facts: ➢ J & J Solutions (dba Corvida Medical) is a medical device company currently located in Coralville Iowa that has recently received FDA approval to manufacture an effective closed drug delivery system designed to protect health care workers and patients from direct exposure to hazardous pharmaceuticals typically administered during chemotherapy treatment. ➢ Corvida Medical intends to produce the product in partnership with Pioneer Plastics at their facility at 3660 Dodd Road. ➢ On April 5, 2016 the Eagan City Council considered and approved a Minnesota Investment Fund (MIF) Application to the State of Minnesota to assist Corvida Medical in the amount of $400,000. ➢ On April 11, 2016, the State of Minnesota awarded the City of Eagan $360,000 in assistance and required that the City of Eagan participate with a $40,000 loan from its Revolving Loan Fund. ➢ The loan agreement under consideration provides $400,000 in business assistance to Corvida Medical as a repayable loan with a term of 72 months and bearing interest of zero percent. The funds are to be used exclusively for the purchase of equipment, automation tooling, molds, manufacturing cells and fixtures. ➢ The conditions of the agreement require Corvida Medical to create 17 new, permanent jobs in the City of Eagan and provide a minimum of $5.5 million of equity to complete the project. The draft grant contract and loan agreement is attached and available for public review. ➢ The consideration of the business subsidy requires a public hearing and City Council action to approve related agreements. Attachments: (4) PHA -1 Location Map PHA -2 Resolution Authorizing Business Subsidy PHA -3 Draft MIF Grant Contract PHA -4 Draft Loan Agreement and Related Documents 7 Resolution No. RESOLUTION APPROVING BUSINESS SUBSIDY FOR J & J SOLUTIONS, INC. D/B/A CORDIVA MEDICAL, INC. WHEREAS, J & J Solutions, Inc. d/b/a Cordiva Medical, Inc. ("Corvida") has applied for a business subsidy from the City of Eagan, Dakota County, Minnesota ("City") in the amount of $40,000.00. WHEREAS, pursuant to the Minnesota Business Subsidy Act, set forth in Minnesota Statutes, Sections 116J.993 to 116J.995 ("Act"), the City is authorized to grant a business subsidy for the public purpose of creating more jobs. WHEREAS, the City desires to provide a business subsidy in the amount of $40,000.00 to Corvida, subject to the terms and conditions set forth in the Loan Agreement ("Agreement"), a copy of which is attached to this Resolution. WHEREAS, the City Council ("Council") has reviewed the Agreement. BE IT RESOLVED by the City Council of the City of Eagan, Dakota County, Minnesota, that the Council approves the terms and provisions of the Agreement and directs the Mayor and City Clerk to execute the Agreement. ADOPTED by the Council this 1 st day of August, 2016. Mike Maguire, Mayor ATTEST: Christina M. Scipioni, 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: Maguire, Bakken, Hansen, Fields and Tilley; and the following voted against the same: none. WHEREUPON, said resolution was declared duly passed and adopted and was signed by the Mayor and his signature attested by the City Clerk. STATE OF MINNESOTA GRANT CONTRACT DEPARTMENT OF EMPLOYMENT AND ECONOMIC DEVELOPMENT BUSINESS AND COMMUNITY DEVELOPMENT DIVISION Minnesota Investment Fund Grant Contract CDAP-16-0007-H-FY 16 Grant Amount: $360,000.00 Grantee: City of Eagan Borrower: J&J Solutions, Inc. d/b/a Corvida Medical This Grant Contract is between the State of Minnesota, acting through the Department of Employment and Economic Development, Business and Community Development Division, ("STATE") and City of Eagan, 3830 Pilot Knob Road, Eagan, MN 55122 ("GRANTEE"). Recitals 1. Under Minn. Stat. §§ 116J.035 and 116J.8731, Minnesota Investment Fund, the State is empowered to enter into this Grant. 2. The State is in need of local units of government to administer projects in accordance with Minn. Stat. §§ 116J.8731 Minnesota Investment Fund; Minnesota Rules Chapter 4300; and policies and procedures developed by the State. 3. The Grantee represents that it is duly qualified and agrees to perform all services described in this Grant Contract to the satisfaction of the -State. If administrative costs are eligible under this Grant pursuant to Minn. Stat: § 1613.98, subdivision 1, the Grantee agrees to minimize administrative costs as a condition of this Grant. 4. The Grant Contract in the amount of $360,000 will fund a portion of a loan in the amount the $400,000. The City of Eagan through its Revolving Loan Fund program will supply $40,000 of the $400,000 loan. Payments from the ,$400,000.1oan will be divided pro rata between the MIF Grant and the City of Eagan''s RLFamount. Net Proceeds (after payment of all legal fees and other costs of collection) from the sale of collateral will be shared pro rata between the MIF Grant balance and the City of Eagan's RLF balance. ` Grant Contract, 1. Term of Grant Contract 1.1 Effective Date: April 11, 2016. Per Minn. Stat. § 16B.98 subd. S and Minn. Stat. § 1613.98 subd. 7, no payments will be made to the Grantee until this Grant Contract is fully executed. 1.2 Benefit Date: The earlier of. a) the date the purchase of equipment funded by the loan is put into service; or b) June 30, 2017. 1.3 Compliance Date: 2 years from Benefit Date but no later than June 30, 2019. 1.4 Expiration Date: 3 months after Compliance Date but no later than September 30, 2019. 1.5 Survival of Terms. The following clauses survive the expiration or cancellation of this Grant Contract: 8. Liability; 9. State Audits; 10. Government Data Practices; 12. Publicity and Endorsement; 13. Governing Law, Jurisdiction and Venue; 15. Data Disclosure; and Exhibit A 4. Repayments. Rev. 1/14/2015 2. Grantee's Duties 2.1 Duties. The Grantee, who is not a State employee, will perform the duties specified in Exhibit A which is attached and incorporated into this Grant Contract. 2.2 Application. The Grantee has made application ("APPLICATION") to the State for the purpose of providing a loan to J&J Solutions, Inc. d/b/a Corvida Medical, ("BORROWER") in the manner described in the application which is incorporated into this Grant Contract by reference. 2.3 Provisions for Contracts and Sub -grants a) Contract Provisions. The Grantee must include in any contract and sub -grant, including the loan agreement with the Borrower; in addition to provisions that define a sound and complete agreement, such provisions that require contractors, sub - grantees and the Borrower to comply with applicable state and federal laws. b) Payment of Contractors and Sub -Contractors. The Grantee must ensure that all contractors and subcontractors ;performing work covered by; this Grant are paid for their work that is satisfactorily completed. 3. Time The Grantee must comply with all of the time requirements described in this Grant Contract. In the performance of this Grant, time is of the essence. 4. Consideration of payment 4.1 Consideration. The State will pay the Grantee under this Grant Contract as follows: a) Compensation. The Grantee, will be reimbursed according to the approved Budget contained in Exhibit B, which is attached and incorporated into the Grant Contract portion of this Grant Contract. b) Total Obligation. Thee total obligation of the State for all compensation and reimbursement to the Grantee under this Grant Contract will not exceed $360,000.00. 4.2 Payment. a) Invoices. The State will disburse funds to the Grantee pursuant to this Contract, ,based upon payment requests submitted by the Grantee and reviewed and approved Eby the State. ` Payment requests must be accompanied by supporting invoices that relate. to the activities in the approved budget and the documentation detailed in Section;4.2.b. of this Grant Contract. The State will provide payment request forms. If the Grantee has received invoices from the Borrower for expenditures made after effective date of this Grant Contract but before the Grant is closed or until all funds are disbursed, whichever is earlier, the Grantee shall submit those invoices to the State for review and approval no later than 25 days after the end date of the state fiscal year of June 30t`. To ensure that all funds are drawn down by the expiration date of the Grant, all Grantee payment requests must be received by the State at least 30 days prior to the Expiration Date. b) Documentation. The following information must be submitted and approved by the State before funds will be released: 1) Minnesota Investment Fund loan agreement, promissory note, amortization schedule, and evidence of security agreement and UCC filing on equipment, Rev. 1/14/2015 2 automation tooling, molds, manufacturing cells and fixtures with a purchase value of at least $3,100,000.00 2) Documentation that the following lenders have closed on their financing: a. Evidence of equity injection in the amount of $5,500,000.00 3) Invoices for equipment, automation tooling, molds, manufacturing cells and fixtures costs. Funds will be released on a cost-sharing ratio of 13.0% Grant funds to 87.0% other funds c) Eligible Costs. Eligible costs include the costs identified in Exhibit B of this Grant Contract that are incurred during the contract period. 5. Conditions of Payment All services provided by the Grantee under this Grant Contract must be performed to the State's satisfaction, as determined at the sole discretion of the State's Authorized Representative and in accordance with all applicable federal, state and local laws, ordinances, rules, and regulations. The Grantee will not receive payment for work found by the State to be unsatisfactory or performed in violation of federal, state or local law. The State will not authorize disbursement of 'funds if there has :been any adverse change in the Borrower's financial condition, organization, operations, or their ability to repay the project financing. 6. Authorized Representative The State's Authorized Representative is Bradley Simenson, Senior Loan Officer, 0 National Bank Building, 332 Minnesota Street, Suite 8200, St. Paul, NIN 55101, 651-259- 7428, bradley.simenson@state..mn.us, or .his/her successor, and has the responsibility to monitor the Grantee's performance, and the authority to accept the services provided under this Grant Contract. If the services are satisfactory, the State's Authorized Representative will certify acceptance on each payment requestform. submitted for payment. The Grantee?s Authorized Representative is Erik Slettedahl, Community Development/Specialist, 3830 Pilot Knob Rd, Eagan, MN 55122, 651-675-5692, eslettedahl@cityofeagan.com, or his/her " successor. If the Grantee's Authorized Representative changes at any time during_ this Grant Contract, the Grantee must immediately notify the State. 7. Assignment, Amendments, Waiver, and Grant Contract Complete 7.1 ;Assignment. The Grantee shall neither assign nor transfer any rights or obligations under this Grant Contract without the prior written consent of the State, approved by the same parties who executed and approved this Grant Contract, or their successors in office. 7.2 Amendments. Anyamendment to this Grant Contract must be in writing and will not be effective until it has been executed and approved by the same parties who executed and approved the original Grant Contract, or their successors in office. 7.3 Waiver. If the State fails to enforce any provision of this Grant Contract, that failure does not waive the provision or the State's right to enforce it. 7.4 Grant Contract Complete. This Grant Contract contains all negotiations and agreements between the State and the Grantee. No other understanding regarding this Grant Contract, whether written or oral, may be used to bind either party. Where provisions of the Application are inconsistent with the other provisions of this Contract, the other provisions of this Contract will take precedence over the provisions of the Application. g. Liability Rev. 1/14/2015 Subject to the provisions and limitations of Minn. Stat. § 466, the Grantee must indemnify, save, and hold the State, its agents, and employees harmless from any claims or causes of action, including attorney's fees incurred by the State, arising from the performance of this Grant Contract by the Grantee or the Grantee's agents or employees. This Clause will not be construed to bar any legal remedies the Grantee may have for the State's failure to fulfill its obligations under this Grant Contract. 9. State Audits Under Minn. Stat. § 1613.98, subd. 8, the Grantees books, records, documents, and accounting procedures and practices of the Grantee or other party relevant to this Grant Contract or transaction are subject to examination by the State and/or the State Auditor or Legislative Auditor, as appropriate, for a minimum of six (6) years from the end of this Grant Contract, receipt and approval of all final reports, date of final repayment to the State, or the required period of time to satisfy all State and program retention.requirements, whichever is later. 10. Government Data Practices The Grantee and State must comply with the Minnesota Government Data Practices Act, Minn. Stat. § Ch. 13, as it applies to all data provided by the State under this Grant Contract, as it applies to all data created, collected, received, stored, used, maintained, or disseminated by the Grantee under this Grant Contract. The civil remedies of Minn. `Stat. § 13.08 apply to the release of data referred to in this Clause by either the Grantee or the State. If the Grantee receives a request to release the data referred to in this Clause, the Grantee must immediately notify the State. The State will give the Grantee instructions concerning the release of the data to the requesting party before the data is released. The Grantee's response to the request shall comply with all applicable law. 11. Workers' Compensation The Grantee certifies that it is in compliance with Minn. Stat. § 176.181, subd. 2, pertaining to workers' compensation insurance coverage. The Grantee's employees and agents will not be considered State employees. Any claims that may arise under the Minnesota Workers' Compensation Acton behalf of these employees and any claims made by any third party as a consequence .of any act or omission on the part of these employees are in no way the State's obligation or responsibility.. 12. Publicity and Endorsement 12.1 Publicity. Any publicity regarding the subject matter of this Grant Contract must identify the State as the sponsoring agency. For purposes of this provision, publicity includes notices, informational pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for the Grantee individually or jointly with others, or any subcontractors, with respect to the program, publications, or services provided resulting from this Grant Contract. 12.2 Endorsement. The Grantee and the Borrower must not claim that the State endorses its products or services. 13. Governing Law, Jurisdiction, and Venue Minnesota law, without regard to its choice -of -law provisions, governs this Grant Contract. Venue for all legal proceedings out of this Grant Contract, or its breach, must be in the appropriate state or federal court with competent jurisdiction in Ramsey County, Minnesota. 14. Termination 14.1 Termination by the State. The State may immediately terminate this Grant Contract with or without cause, upon 30 days' written notice to the Grantee. Upon termination, the Rev. 1/14/2015 4 Grantee will be entitled to payment, determined on a pro -rata basis for approved costs incurred. 14.2 Termination for Cause. The State may immediately terminate this Grant Contract if the State finds that there has been a failure to comply with the provisions of the Grant Contract, that reasonable progress has not been made or that the purposes for which the funds were granted have not been or will not be fulfilled. The State may take action to protect the interests of the State of Minnesota, including the refusal to distribute additional funds and requiring the return of all or part of the funds already disbursed. 14.3 Termination for Insufficient Funding. The State may immediately terminate this Grant Contract if: a) It does not obtain funding from the Minnesota. Legislature; b) Or, if funding cannot be continued at a levelsufficient to allow for the payment of the services covered here. Termination must be by written or electronic notice to the Grantee, The State is not obligated to pay for any,services that are provided after notice and effective date of termination. However', the Grantee will be entitled to payment determined on a pro -rata basis, for services satisfactorily performed to the extent that funds are available. The State will not be assessed any penalty if the contract is terminated because of the decision of the Minnesota, Legislature, or other funding source, not to appropriate funds. The. State must provide the Grantee notice of lack of funding within a reasonable time of the State's receiving that notice. 15. Data Disclosure Under Minn. Stat. § 270C.65, subd. 3:, and other applicable law, the Grantee consents to disclosure of its social security number, federal employer tax identification number, and/or Minnesota tax identification number, already, provided to the State, to federal and state agencies and state personnel involved with the payment of state obligations. These identification numbers may be used in the .enforcement of federal and state tax laws which could result in action requiring the Grantee to file state tax returns and pay delinquent state tax liabilities, if any. Other Provisions 16. Affirmative Action The Grantee is encouraged to prepare and implement an affirmative action plan for the employment of minority persons,:women, and the qualified disabled and submit the plan to the Commissioner of'Human Rights as required by Minn. State. § 363A.36. 17. Conflict of Interest The Grantee shall comply with the Conflict of Interest provisions of Minn. Stat. §§ 471.87 and 471.88. 18. Successors and Assignees This Contract shall be binding upon any successors or assignees of the parties. 19. Minnesota Business Subsidy Law This Contract must comply, if appropriate, with the Minnesota Business Subsidy Law, Minn. Stat §§ 116J.993 -116J.995. 20. Debarment and Suspension Certification (if applicable) The Grantee agrees to follow the President's Executive Order 12549 and the implementation regulation "Non -procurement Debarment and Suspension: Notice and Final Rule and Interim Rev. 1/14/2015 Rule," found at 53 FR 19189, May 26, 1988, as amended at 60 FR 33041, June 26, 1995, including Appendix B, "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Execution — Lower Tier Covered Transactions;" unless excluded by law or regulation. Rev. 1/14/2015 6 1. STATE ENCUMBRANCE VERIFICATION 3. STATE AGENCY Individual certifies that funds have been encumbered as required by Minn. Stat. § §16A.15 and 16C. 05. Signed: By: (with delegated authority) Date: Title: Date: SWIFT Contract/PO No(s) 2. GRANTEE The Grantee certifies that the appropriate person(s) have executed the grant contract on behalf of the Grantee as required by applicable articles, bylaws, resolutions, or ordinances. City of Eagan By: Mike Maguire Its: Mayor By: Christina M. Scipion Its: Clerk Distribution: Agency Grantee State's Authorized Representative — Photo Copy Rev. 1/14/2015 7 EXHIBIT A GRANTEES DUTIES The Grantee, who is not a State employee, will, 1. Administer the project in accordance with the requirements of the Minnesota Investment Fund Program, Minn. Stat. § I I6J.8731; Minn. Rules, Chapter 4300; and policies and procedures developed by the State. 2. Enter into a Loan Agreement with the Borrower for $400,000.00, ("LOAN") and assure the following conditions are included in such Agreement: 2.1 Conditions a) Loan Term: 6 Years from Initial Disbursement b) Interest Rate: 0.0% c) Collateral: Security agreement and UCC filing on equipment, automation tooling, molds, manufacturing cells and fixtures with <a purchase value of at least $3,100,000.00. 2.2 Job Creation and Wages a) The Borrower identified 3 full-time equivalent (FTE) base jobs that must be maintained until the Compliance Date. b) The Borrower will create 17 permanent non -contract FTE jobs, all paying at least $15.00 per hour or more in wages, exclusive of Benefits, and $17.50 per hour including Benefits. Benefits are defined as one or more of the following: health, dental, life and disability insurance, retirement program and,profit sharing paid by the Borrower. In addition, the weighted average cash wage level for the new permanent non -contract FTE jobs shall exceed $20.00 per hour. c) If the Borrower fails'tomeet the job creation and wage goal level commitments by the Compliance Date, the Grantee may, after holding a public hearing, extend the grant period for one yea- from the Compliance .Date, after approval by the State. If, after the extension, the Borrower fails to meet the job creation goal and wage level commitment, the Borrower will be required to repay the Grantee all or a proportional share of the Loan funds on an accelerated term. The Grantee will then also be required to return to the State all or a proportional share of the Loan funds. 2.3 Payment of Prevailing=Wages to .Contractors Minn. 'Stat, § 116J.871 applies if a business receives $500,000 or more in State loan funds and the State funds are used for construction, installation (including equipment), remodeling and repairs. 2.4 Surety Deposits Required for Construction Contracts Minn. Stat. § 290.9705, pertains to foreign corporations that perform construction work in Minnesota and applies if state funds are used for construction. 2.5 Job Listing Agreement Minn. Stat. § 1161L.66, subd. 1, applies when a business or private enterprise receives $200,000 or more per year in funds from the State. When applicable, the business or private enterprise shall agree to enter into a Job Listing Agreement with the MN Department of Employment and Economic Development. Rev. 1/14/2015 3. Require the Grantee's attorney to review the loan agreement, promissory note, security agreement, mortgage, guaranty and/or other documents, if any, considered necessary to secure the loan to ensure they are valid, binding and enforceable. 4. This Section is in reference to the pro rata share of the payments made for the MIF Grant balance. If the Borrower is in compliance with Section 2.2 of Exhibit A of this Grant Contract, the Grantee may retain 40% of each principal MIF Grant payment made by the Borrower, up to $100,000. Repay to the State 60% of each principal MIF Grant payment made by the Borrower until the Grantee has received $100,000. Once the Grantee has received $100,000 of principal payments, the Grantee will repay the State 100% of every payment on the MIF Grant portion of the loan until paid in full. In the event the loan is not paid in full, principal amount the Grantee retains will be reduced proportionally. 5. The Grantee will establish and maintain a revolving loa' fund (RLF) consistent with the requirements in Section 2 of the Recitals section of this contract and State RLF Guidelines published by DEED. The Grantee must retain financial control and decision making authority regarding the use of repayments from the loan. However, the Grantee may loan or grant money from its RLF to a regional development commission, or other regional entity, or statewide community capital fund to capitalize or to provide the local match required for capitalization of a regional or statewide RLF. The State must provide written approval prior to the release of funds to an organization. 6. Reporting 1) Minnesota Investment Fund Submit to the State annual progress reports Ion forms provided by the State until project goals have been met or until the Compliance Date; whichever is later.. There reports must be submitted January 25`'' of each year for the period ending December 31, for.as long as the project remains open. At the discretion of the State or Grantee additional reporting may be required. This information must be submitted to the Grantee no later than: a) January 252 20,117 for theperiod ending December 31, 2016 b) January 25, 2018 for the period. ending December 31, 2017 c) January 25, 2019 for the period ending December 31, 2018 d) Within 25 days of the Compliance Date. 1) The final report nust be submitted no later than 25 days after the Compliance Date. 2) The State, at its, discretion, may require the submittal of additional progress reports. 3) Information'required in this report includes, but is not limited to the following: • Permanent jobs created • Hourly base wage • Date of hire • Job titles • Hourly value of benefits • Benefits provided • Project expenditures • Status of project • Status of payments 2) Minnesota Business Assistance Form Submit to the MN Department of Employment and Economic Development, Office of Economic Analysis, no later than April ls` of each year until the project goals have been met. 7. Keep financial records, including properly executed contracts, invoices, receipts, vouchers, and other documents sufficient to evidence in proper detail the nature and propriety of the expenditures made pursuant to this contract. Accounting methods must be in accordance with Rev. 1/14/2015 generally accepted accounting principles. 8. Complete the project in accordance with the approved budget within the time frames specified in this Grant Contract. 9. Promptly notify the State of any proposed material change in the scope of the project, budget or completion date, which must be approved by the State, prior to implementation. 10. Have on file the necessary documentations to show that all project funds have been used for the items stated in the application. Financial Summary: MIF Bank Equity Other CitV Total Property Acquisition $ $ $ $ $ $ Site Improvement $ $ $' $ $ $ Renovation of Existing Buildings $ $ $ $ $ $ Construction $ $ $ $ $ $ Machinery & Equip. $360,000 $ $3,800,000 $40,000 $4,200,000 Administration $ $ $ $ $ $ Roads $ $ $ $ $ $ Water $ $ $ $ $ $ Sewer (Sanitation) $ $ $ $ $ $ Other $ $ $ $ $ $ Other $ $ $ $ $ $ Total Project Cost $360,000 $ $3,800,000 $ $40,000 $4,200,000 Rev. 1/14/2015 10 LOAN AGREEMENT MINNESOTA INVESTMENT FUND THIS LOAN AGREEMENT is made and entered into as the day of , 2016 by and between the City of Eagan, a Minnesota municipal corporation (the "Lender"), and J & J Solutions, Inc., an Iowa corporation, d/b/a Corvida Medical (the "Borrower"). (The Lender and Borrower are hereinafter referred to as the "Parties.") WITNESSETH: WHEREAS, the Lender has applied to the Minnesota Department of Employment and Economic Development for a Minnesota Investment Fund Grant (the "MIF Grant") pursuant to an application (the "Grant Application") and received approval for said grant in the amount of $360,000.00; and WHEREAS, the Borrower has applied to the City of Eagan for a Revolving Loan Fund (the "RLF Loan") pursuant to an application (the "RLF Application") and received approval for said RLF Loan in the amount of $40,000.00; and WHEREAS, Lender has agreed to make a loan to Borrower, funded pro rata with the MIF Grant and the RLF Loan in the total amount of $400,000.00. WHEREAS, Grant Contract Number CDAP-16-0007-H-FY16 (the "Grant Contract") between the Minnesota Department of Employment and Economic Development (the "State") and the Lender has been executed and requires that the Borrower provide sufficient funds to complete financing and agree to loan terms with the Lender regarding the MIF Grant and the RLF Loan; and WHEREAS, the Parties hereto agree to incorporate into this Agreement by reference said Grant Application and Grant Contract as if fully set forth herein word for word; NOW THEREFORE, it is agreed by and between the Parties hereto as follows: {02091854.DOCX} ARTICLE 1 Definitions Section 1.1. Definitions. In this Agreement, unless a different meaning clearly appears from the context: "Benefit Date" means the earlier of a) the date the purchase of equipment, automation tooling, molds, manufacturing cells and fixtures is put into service; or b) June 30, 2017. "Benefits" mean health, life, dental and disability insurance, retirement compensation and profit sharing paid by the Borrower as part of employee's compensation. "Borrower" means J & J Solutions d/b/a Corvida Medical, an Iowa corporation. "City" means the City of Eagan. "County" means Dakota County. "Compliance Date" means the date that is two (2) years after the Benefit Date. "Development Property" means the real property described at Exhibit A attached hereto. "Eagan's RLF Program" means the City's Revolving Loan Fund Program. "Equipment" means the equipment, automation tooling, molds, manufacturing cells and fixtures purchased by the Borrower; with the Loan and described in Exhibit B attached hereto. "Full -Time Equivalent Job" means an employee that is employed 2080 hours per year. "Grant Contract" means Minnesota Department of Employment and Economic Development Grant Contract # CDAP-16 0007-H-FY16. "Initial Disbursement Date" 'means the date of the first disbursement of any Loan Proceeds by the Lender to the. Borrower. "Jurisdiction" means a city, county or township. "Lender" means the City of Eagan. "Leveraged Funds" means the funds described in Section 2.2. of this Agreement. "Loan" means the funds loaned by the Lender to the Borrower pursuant to this Agreement. "Loan Proceeds" means the funds disbursed to the Borrower pursuant to this Agreement and any proceeds thereof. {02091854.DOCX} 2 11AHF" means the Minnesota Investment Fund, Minn. Stat. § 116J.8731 and Minn. Rules Chapter 4300. "MIF Grant" means the grant of funds by the State to the Lender pursuant to the Grant Contract. "Project" means the Borrower's acquisition of equipment, automation tooling, molds, manufacturing cells and fixtures. "State" means the Minnesota Department of Employment and Economic Development. "Termination Date" means the date of the final payment made to the Lender. ARTICLE 2 Financing for Project Section 2.1. Project Financing. The Borrower has secured a commitment for the financing necessary to complete the Project, in a form and under conditions satisfactory to the Borrower. Section 2.2. Borrower's Equity and Other Financing. The Borrower shall, prior to the disbursement of any Loan proceeds, have raised not less than $5,500,000.00 in its offering of its 2016 Unsecured Convertible Promissory Notes (exclusive of the Loan) to be used for the completion of the Project and Borrower's general corporate purposes, including, without limitation, payroll for personnel located within the corporate limits of Lender. Section 2.3. MIF Loan/Grant. The MIF Grant will be used by the Lender to make a loan to the Borrower of not more than $400,000.00 for the purchase of equipment, automation tooling, molds, manufacturing cells and fixtures. The Borrower's obligations under this Agreement are expressly contingent on the Lender'.s receipt of funds from the State in an amount adequate to make the Loan. ARTICLE 3 MIF Loan Terms and Conditions Section 3.1. Basic Loan Terms. The principal amount of the Loan shall not exceed $400,000.00. The Loan shall bear interest at a rate of zero percent (0.0%) per annum. The Loan terms may not be modified without prior written approval from the State. The Loan shall be used exclusively for the purchase of equipment, automation tooling, molds, manufacturing cells and fixtures. The teirn of the Loan is set forth in Section 5.4 of this Agreement. Section 3.2. Prepayment. Prepayment of the Loan may occur at any time during the Loan without penalty. {02091854.Docx} Section 3.3. Assignment. If, prior to the Termination Date, the Borrower sells, conveys, transfers, further mortgages or encumbers, or disposes of the Development Property, or any part thereof or interest therein, or enters into an agreement to do any of the foregoing, the Borrower shall immediately repay all amounts then outstanding on the Loan. This shall be in addition to any other remedies at law or equity available to the Lender. Section 3.4. Termination. This Agreement shall automatically terminate without any notice to Borrower: (1) if no Loan Proceeds have been disbursed to the Borrower prior to January 1, 2017; or (2) if. (a) the Borrower has not received any disbursement of Loan Proceeds from the Lender; and (b) the Borrower fails to pay its debts as they become due, makes an assignment for the benefit of its creditors, admits in writing its inability to pay its debts as they become due, files a petition under any chapter of the Federal Bankruptcy Code or any similar law, state or federal, now or hereafter existing, becomes "insolvent" as that term is generally defined under the Federal Bankruptcy Code, files an answer admitting insolvency or inability to pay its debts as they become due in any involuntary bankruptcy case commenced against it, or ;fails to obtain a dismissal of such case within sixty (60) days after its commencement or convert the case from one chapter of the Federal Bankruptcy Code to another chapter, or is the subject of an order for relief in such bankruptcy case, or is adjudged a bankrupt .or insolvent, or has a custodian, trustee, or receiver appointed for it, or has any court take jurisdiction of its property, or any part thereof, in any proceeding for the purpose of reorganization, arrangement, ,dissolution, or liquidation, and such custodian, trustee, or receiver is not discharged, or such jurisdiction is not relinquished, vacated, or stayed within sixty (60) days of the appointment. Section 3.5. Promissory Note. The Borrower shall execute a'promissory note in substantially the form set forth by the State. Section 3.6. Surety Deposits Required for Construction Contracts. If the Borrower is hiring, contracting, or having a contract with a nonresidential person or foreign corporation to perform construction work, the Borrower must comply with Minnesota Statutes 290.9705, as amended, by deducting and witholding eight percent of cumulative calendar year payments to the contractor which exceeds $50,000.00. This condition may be waived if (1) the contractor gives the commissioner a cash surety or a bond, secured by an insurance .company licensed by Minnesota, conditioned that the contractor will comply with all applicable provisions of this chapter and chapter 297A, or (2) the contractor has done construction work in Minnesota at any time during the three calendar years prior to entering the contract and has fully complied with all provisions of this chapter and chapter 297A for the three prior years. Section 3.7. Annual Financial Statements. For the term of the loan, upon request of the Lender, the Borrower shall submit the most recent annual financial statement prepared in accordance with generally accepted accounting principles. The annual financial statements shall include a profit and loss statement, balance sheet, statement of cash flow, notes and an opinion from the accountants of such statements acceptable to the Lender. (02091854.DOCX) 4 Section 3.8. Hazard Insurance. The Borrower shall maintain insurance in adequate amounts covering loss or damage to the collateral. The Lender must be listed as loss payee. ARTICLE 4 Default and Collateral Section 4.1. Default. The Borrower shall be in default under this Agreement upon the happening of any one or more of the following events: (a) the Borrower fails to pay when due any amount payable on the Loan and such nonpayment is not remedied within ten (10) business days after written notice thereof to the Borrower by the Lender; (b) the Borrower is in breach in any material respect, of any obligation or agreement under this Agreement (other than nonpayment of any amount payable on the Loan) and remains in breach in any material respect for thirty (30) business days after written notice thereof to the Borrower by the Lender; provided, however, that if such breach shall reasonably be incapable of being cured within such thirty (30) business days after 'notice, and if the Borrower commences and diligently prosecutes the appropriate steps to cure such breach, no default shall exist so long as the Borrower is proceeding to cure such breach; (c) if any material covenant, warranty, or representation of the Borrower shall prove to be untrue in any material respect, provided such .covenant, warranty or representation of the Borrower remains untrue in any material respect for thirty (3 0) business days after written notice thereof to the Borrower by the Lender; provided, however, that if such untruth shall reasonably be incapable of being corrected within such thirty (30) business days after notice, and if the Borrower commences and diligently prosecutes the appropriate steps to correct such untruth, no default shall exist so long as the Borrower is so proceeding to correct such untruth; (d) the Borrower on or ;after the Initial Disbursement Date, fails to pay its debts as they become due, makes an assignment for the benefit of its creditors, admits in writing its inability to pay its debts as they become due, files a petition under any chapter of the Federal Bankruptcy Code or any similar law, state or federal, now or hereafter existing, becomes "insolvent" as that term is generally defined under the Federal Bankruptcy Code, files an answer admitting insolvency or inability to pay its debts as they become due in any involuntary bankruptcy case commenced against it, or fails to obtain a dismissal of such case within sixty (60) days after its commencement or convert the case from one chapter of the Federal Bankruptcy Code to another chapter, or be the subject of an order for relief in such bankruptcy case, or be adjudged a bankrupt or insolvent, or has a custodian, trustee, or receiver appointed for it, or has any court take jurisdiction of its property, or any part thereof, in any proceeding for the purpose of reorganization, arrangement, dissolution, or liquidation, and such custodian, trustee, or receiver is not discharged, or such jurisdiction is not relinquished, vacated, or stayed within sixty (60) days of the appointment; (e) a final judgment is entered against the Borrower that the Lender reasonably deems {02091854.DOCX} 5 will have a material, adverse impact on the Borrower's ability to comply with the Borrower's obligations under this Agreement; (f) the Borrower sells, conveys, transfers, encumbers, or otherwise disposes of all or any part of the Equipment without the prior written approval of the Lender; (g) the Borrower merges or consolidates with any other entity without the prior written approval of the Lender; or (h) there is a loss, theft, substantial damage, or destruction of all or any part of the Equipment that is not remedied to the Lender's satisfaction within sixty (60) business days after written notice thereof by the Lender to the Borrower. Section 4.2. Remedies Upon Default. (a) In the event of a default, the Lender shall have the right as its option and without demand or notice, to declare all or any part of the Loan immediately due and payable, and in addition to the rights and remedies granted hereby, the Lender shall have all of the rights and remedies available under the Uniform Commercial Code and any other applicable law. (b) The Borrower agrees in the event of a default to make the collateral available to the Lender. The Borrower agrees to pay the costs _ and expenses incurred by the Lender in enforcing its rights under this Agreement, including but not limited to the Lender's attorneys fees. If any notice of sale, disposition or other intended action by the Lender is required by law to be given to the Borrower, such notice shall be deemed reasonably and properly given if mailed to the Borrower at the; Development. Property or at such other address of the Borrower as may be shown herein, at least fifteen (15) days before such sale, disposition or other intended action. Section 4.3. Collateral. The Borrower shall grant to the Lender a lien on certain equipment pursuant to the security agreement in substantially the form prescribed by the State. Section 4.4. Default on Business Subsidy Act Requirements. (a) In the event of an Event of Default arising from a breach by the Borrower of any provision of Section 7.1 of this Agreement, if the implicit price deflator for government consumption expenditures and gross investment for state and local governments prepared by the Bureau of Economic Analysis of the United States Department of Commerce for the 12 -month period ending March 31St of the previous year, exceeds three percent (3.0%) on the date of the earliest such Event of Default, the Borrower shall, in addition to any other payment required hereunder, pay to the Lender the difference between the present value of the interest actually paid and accrued on the Loan as of the date of the payment required by this Section 4.4, and the amount of interest that would have been paid and accrued on the Loan if the interest rate of the Loan at all times had been equal to the implicit price deflator on the date of the earliest Event of Default. {02091854.DOCX} 6 (b) Nothing in tlmis Section 4.4 shall be construed to limit the Lender's rights or remedies under any other provision of this Agreement, and the provisions of Section 4.4(a) are in addition to any other such right or remedy the Lender may have available. ARTICLE 5 Loan Disbursement Provisions Section 5.1. Payment Requisition Documentation and Format. Loan disbursements shall be for the acquisition of equipment, automation tooling, molds, manufacturing cells and fixtures and shall not exceed $400,000.00. The Loan shall be disbursed to the Borrower only after the Lender has received from the Borrower an invoice or invoices for the purchase of equipment, automation tooling, molds, manufacturing cells and fixtures costs. Upon receipt of such invoice or invoices, the Lender will disburse an amount equal to thirteen percent (13.0%) of amount of the invoice or invoices, up to a total disbursement amount of $400,000.00. Section 5.2. Provision for Evidentiary Materials. No disbursements of Loan funds shall be made until all evidentiary materials required by the State have been submitted and approved by the State. These evidentiary materials shall include, but not necessarily be limited to, the materials described in Article 6 of this Agreement and the invoices described in Section 5.1. Section 5.3. Project Time Frame. The time frame outlined in the Grant Application pertaining to the Project shall be met by the Borrower. Section 5.4. Loan Terms. The term of the Loan shall be up to seventy-two (72) months, commencing as of the Initial Disbursement Date. The Loan shall bear interest at a rate of zero percent (0.0%) per annum and interest shall commence to accrue as of the Initial Disbursement Date. Section 5.5. Loan Repayments Schedule. Payments of principal shall commence on the first day of the first month immediately following the lnitial Disbursement Date, and shall continue on the first day of each and every month thereafter until paid in full. Such payments shall fully amortize the Loan over seventy-two (72) months; provided, however, the entire remaining unpaid balance of principal shall be due and payable in full on the first day of the seventy-second (72) month following the Initial Disbursement Date. Section 5.6. Leveraged Funds. The Leveraged Funds described in the Grant Application must be used for the same purposes and under the same terms, rates, and conditions as specified therein unless prior written consent is received from the State. Section 5.7. Adverse Changes. The State will not authorize disbursement of funds if there has been any adverse change in the Borrower's financial condition, organization, operations or their ability to repay the project financing. {02091854.DOCX} 7 ARTICLE 6 Provision of Evidentiary Material Requirement Section 6.1. Provision of Evidentiary Materials. In addition to those materials described in Section 5.2 of this Agreement, the Borrower shall provide the Lender with all evidentiaiy materials according to the format and timetable cited in the Grant Contract. The Lender will forward these materials to the State and assist in expediting reviews leading to a release of the Loan. Section 6.2. Documentation of Use of Funds. The Borrower must provide the Lender with necessary documentation that the Loan and the Leveraged Funds have been used for the items and purposes stated in the Grant Application prior to submitting the final progress report and requesting grant closeout from the State. Section 6.3. Job Creation Documentation. The Borrower shall annually complete and provide to the Lender notification of employment of hiring each new permanent employee for inclusion in the Lender's annual Progress Report to the Grantor. The notification requirement must be provided to the Lender no later than January 15 of each year and shall terminate on the Compliance Date if the Borrower is not then in breach of Section 7, on forms provided by the Lender. This information must include: (a) Permanent jobs created. (b) Job title per job. (c) Date employee(s).hired. (d) Hourly wage. (e) Hourly value of benefits paid. (f) Benefits. ARTICLE 7 Business Subsidy Agreement Section 7.1. Business Subsidy Agreement. The provisions of this Section constitute the "business subsidy agreement" for purposes of the Minnesota Business Subsidy Act (Minnesota Statutes Sections 116J.993-995 and its successor statute.) (a) The Borrower acknowledges and agrees that the provisions of Minnesota's Business Subsidy Act apply to this Agreement, as Borrower is receiving under the terms of this Agreement government assistance. (1) The subsidy provided to the Borrower includes the $400,000.00 Loan made hereunder which will be used for the acquisition of equipment, automation tooling, molds, manufacturing cells and fixtures. (2) The public purposes and goals of the subsidy are to increase net jobs in the City. (3) The goals for the subsidy are to create jobs that pay a livable wage, per {02091854.DOCX} 8 Section 7.1(b) of this Agreement. (4) If the goals are not satisfied, the Borrower shall make payment to the Lender as required in Section 4.4. (5) The subsidy is needed because start-up costs make the Project economically infeasible without the Loan. (6) The Borrower must continue operations in the jurisdiction for at least five years following the Benefit Date. (7) The Borrower does not have a parent corporation. (8) In addition to the assistance provided under this Agreement, The Borrower has received or expects to receive as part of this project, the following financial assistance from other "grantors" as defined in the Business Subsidy Act: none. (b) By no later than the Compliance Date and continuing through at least the Compliance Date, the Borrower shall create at least seventeen (17) new permanent, non -contract Full -Time Equivalent Jobs (the "New Jobs") on the Development Property or otherwise within the corporate limits of the City (excluding the three (3) permanent, full time non -contract equivalent jobs previously existing on the Development Property as of April 11, 2016 which must also be maintained from the date of this Agreement through at least the Compliance Date. The New Jobs must pay a base wage of at least $15.00 per hour, exclusive of Benefits and $17.50 per hour including Benefits. In addition, the weighted average cash wage level for the new FTE shall exceed $20.00 per hour. If the Borrower fails to meet the job creation goal and wage level commitment on the Compliance Date, the Borrower will be required to return all, or a proportional share of the Loan. Section 7.2. Reporting. The Borrower shall provide to the Lender information regarding job and wage goals and results for two years after the benefit date or until the goals are met, whichever is later. This reporting requirement will expire if the goals are met by the Compliance Date. If the goals are not met, the Borrower must continue to provide information on the loan until the loan is repaid. The information must be filed on forms developed by the State. The report must be filed no later than March 1 of each year for the previous year. If the Borrower does not submit the report, the Lender shall mail the Borrower a warning within one week of the required filing date. If, after: 1>4 days of the postmarked date of the warning, the Borrower fails to provide a report, the Borrower must pay to, the Lender a penalty of $100.00 for each subsequent day until the report is filed. The maximum penalty shall not exceed $1,000.00. ARTICLE 8 First Source Employment Agreement Section 8.1 First Source Employment Referral Agreement. (Minnesota Statutes Section 116L.66 and any successor statutes.) The Borrower shall list any vacant or new positions with the local Workforce Development Center. {02091854.DOCX} 9 ARTICLE 9 Provision of Monitoring Information Related To Project Progress Section 9.1. Provision of Progress Information. The Borrower shall provide to the Lender information for incorporation into progress reports, as required by the State and as needed by the Lender, to monitor project implementation for compliance with Grantor and local guidelines. This information must be provided no later than January 10 of each year until the Grantor administratively closes the grant file. ARTICLE 10 Nondiscrimination Section 10.1. Nondiscrimination. The provisions of Minnesota Statutes, Section 181.59 and any successor statutes, which relate to civil rights and discrimination, shall be considered a part of this Agreement as though wholly set forth herein and the Borrower shall comply with each such provision throughout the term of this Agreement. ARTICLE 11 Borrower's Acknowledgments Representation. and Warranties Section 11.1. Acknowledgments. (a) The Borrower acknowledges that the Lender, in order to obtain funds for part of the Borrower's activities in connection with the Project, has applied for the MIF Grant to the State under the Minnesota Investment Fund Program, Business and Community Development Division, and that the Lender has entered into the Grant Contract with the State, setting forth the terms, conditions, and requirements of the MIF Grant. The Borrower further acknowledges that it has made certain, representations and statements in the Grant Application concerning its activities relating to the Project, and that the Borrower is designated and identified under the Grant Contract. (b) A copy of the Grant Contract shall be on file in the offices of the Lender. In the event any provision of this Agreement relating to the Borrower's obligations hereunder is inconsistent with the provisions of the Grant Contract relating to the Borrower's activities there under, the provisions of the Grant Contract shall prevail. (c) The Borrower acknowledges that nothing contained in the Grant Contract or this Agreement, nor any act of the State or the Lender, shall be deemed or construed to create between the State and the Borrower (or, except as Borrower and Lender between the Lender and the Borrower) any relationship, including but not limited to that of third -party beneficiary, principal and agent, limited or general partnership, or joint venture. Section 11.2. Representations and Warranties. The Borrower warrants and represents, in connection with the MIF Grant and for the benefit of the State and the Lender, that: {02091854.Docx} 10 (a) Representations, statements, and other matters provided by the Borrower relating to those activities of the Project to be completed by the Borrower, which were contained in the Grant Application, were true and complete in all material respects as of the date of submission to the Lender and that such representations, statements, and other matters are true as of the date of this Agreement and that there are no adverse material changes in the financial condition of the Borrower's business. (b) To the best of the Borrower's knowledge, no member, officer, or employee of the Lender, or its officers, employees, designees, or agents, no consultant, member of the governing body of the Lender, and no other public official of the Lender, who exercises or has exercised any functions or responsibilities with respect to the Project during his or her tenure shall have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work to be performed in connection with the Project or in any activity, or benefit there from, which is part of the Project. (c) The Borrower acknowledges that the State, in selecting the Lender as recipient of the Grant, relied in material part upon the assured completion of the Project to be carried out by the Borrower, and the Borrower warrants that said Project will be carried out as promised. (d) The Borrower warrants that to the best of its knowledge, it has obtained all federal, state, and local governmental approvals, reviews, and permits required by law to be obtained in connection with the Project and has undertaken and completed all actions necessary for it to lawfully execute this Agreement as binding upon it. (e) The Borrower warrants that it shall keep and maintain books, records, and other documents relating directly to the Leveraged Funds, and that any duly authorized representative of the State shall, at all reasonable times, have access to and the right to inspect, copy, audit, and examine all such books, records, and other documents of the Borrower until such time that the Lender and the State have both- determined that all issues, requirements, and close-out procedures relating to or arising out of the MIF Grant have been settled and completed. (f) The Borrower warrants that no transfer of any or all of the Loan Proceeds by the Lender to the ,.Borrower shall be or be deemed an assignment of Loan Proceeds, and the Borrower shall neither succeed to any rights, benefits, or advantages of the Lender under the Grant Contract, nor attain any right, privileges, authorities, or interest in or under the Grant Contract. (g) The Borrower warrants that it has fully complied with all applicable local, state, and federal laws pertaining to its business and will continue such compliance throughout the terms of this Agreement. If at any time notice of noncompliance is received by the Borrower, the Borrower agrees to take any necessary action to comply with the local, state, or federal law in question. {02091854.DOCX} I I ARTICLE 12 Other Special Conditions Section 12.1. Antitrust. The Borrower hereby assigns to the State of Minnesota any and all claims for overcharges as to goods and services provided in connection with this Agreement resulting from antitrust violations that arise under the antitrust laws of the United States or the antitrust laws of the State. Section 12.2. Workers Compensation Insurance. The Borrower has obtained workers compensation insurance as required by Minnesota Statutes, Section 176.181, subd. 2. The Borrower's workers compensation insurance information is as follows: (a) Company Name: J & J Solutions, Inc. d/b/a Coivida Medical (b) Policy Number: HJUB-6695699-1-16 (c) Local Agent: Noah S. Greenwald Section 12.3. Business with the State of Minnesota/State Tax Laws, The Borrower is required by Minnesota Law to provide its Minnesota tax identification number if it does business with the State of Minnesota. This information may be used in the enforcement of Federal and State tax laws. Supplying these numbers could result in an action to require the Borrower to file State tax returns and pay delinquent State tax liabilities. This Agreement will not be approved unless these numbers are provided. These numbers will be available to Federal and State tax authorities and State personnel involved in the payment of State obligations. Minnesota Tax ID: 3543965 Federal Employer ID: 26-2096960 Section 12.4.- Grant Closeout. The Borrower shall, prior to grant closeout from the State, provide the Lender with all documentation necessary to demonstrate that the Loan has been used for the items and purposes set forth in the Grant Application. Section 12.5. Review of Documents. The Borrower shall not be entitled to any disbursement of Loan Proceeds until the Lender's legal counsel and the State have reviewed and approved this Agreement and the exhibits attached hereto. Section 12.6. Effect on Other Agreements. Nothing in this Agreement shall be construed to modify any term of any other agreement to which the Lender and the Borrower are parties. Section 12.7. Release and Indemnification Covenants. Except for any breach of the representations and warranties of the Lender or the negligence or other wrongful act or omission {02091854.DOCX} 12 of the following named Parties, the Borrower agrees to protect and defend the Lender and the governing body members, officers, agents, servants, and employees thereof, now and forever, and further agrees to hold the aforesaid harmless from any claim, demand, suit, action, or other proceeding whatsoever by any person or entity whatsoever arising or purportedly arising from the acquisition, construction, installation, ownership, maintenance, and operation of the Project and the Borrower's activities on the Development Property. Section 12.8. Modifications. This Agreement may be modified solely through written amendments hereto executed by the Borrower and the lender and approved by the State. Section 12.9. Notices and Demands. Any notice, demand, or other communication under this Agreement by either party to the other shall be sufficiently given or delivered only if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally: (a) as to the Lender: City of Eagan ATTN:Community Development Director 3830 Pilot Knob Road Eagan, MN 55122 with a copy to Robert B. Bauer, City Attorney Dougherty, Molenda, Solfest, Hills & Bauer P.A. 14985 Glazier Avenue, 'Suite 525 Apple Valley, MN 5.5124 (b) as to the Borrower: J &;J Solutions, Inc. d/b/a Corvida Medical 2261 'Crosspark Road, Suite 127 Coralville, IA 52241 or at such other address with respect to any party as that party may, from time to time, designate in writing and forward to the others as provided in this Section 12.9. Section 12.10. Conflict of Interests:; Representatives Not Individually Liable. No employee, officer or agent of the Lender shall participate in the administration of a contract supported by this loan if a conflict of interest, real or apparent, would be involved. No employee, officer or agent of the Lender may obtain a financial interest in any agreement with respect to this loan. No employee, officer, or agent of the Lender shall be personally liable to the Borrower or any successor in interest in the event of any default or breach by the Lender or for any amount that may become due to the Borrower or on any obligation or term of this Agreement. Section 12.11. BindingEffect. ffect. The covenants and agreements in this Agreement shall bind and benefit the heirs, executors, administrators, successors, and assigns of the Parties to this Agreement. Section 12.12. Provisions Not Merged With Deed. None of the provisions of this Agreement {02091854.DOCX) 13 are intended to or shall be merged by reason of any deed transferring any interest in the Development Property and any such deed shall not be deemed to affect or impair the provisions and covenants of this Agreement. Section 12.13. Titles of Articles and Sections. Any titles of the several parts, Articles, and Sections of this Agreement are inserted only for convenience of reference and shall be disregarded in construing or interpreting any of its provisions. Section 12.14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. Section 12.15. Choice of Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the state of Minnesota without regard to its conflict of laws provisions. Any disputes, controversies, or claims arising out .of this Agreement shall be heard in the state or federal courts of Minnesota, and all Parties to this Agreement waive any objection to the jurisdiction of these courts, whether based on convenience or otherwise. Section 12.16. Waiver. The failure or delay of any party to take any action or assert any right or remedy, or the partial exercise by any party of any right or remedy shall not be deemed to be a waiver of such action, right, or remedy if the circumstances creating such action, right, or remedy continue or repeat. Section 12.17. Entire Agreement. This Agreement,with the exhibits hereto, constitutes the entire agreement between the Parties pertaining to its subject matter and it supersedes all prior contemporaneous agreements, representations, and understandings of the Parties pertaining to the subject matter of this Agreement. Section 12.18. SeparabilitX. Wherever possible, each provision of this Agreement and each related document shall be interpreted so that it :is valid under applicable law. If any provision of this Agreement or any related document is to any extent found invalid by a court or other governmental entity of competent jurisdiction, that provision shall be ineffective only to the extent of .such invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement or any other related document. Section 12.19. Iminuni1y. Nothing in this Agreement shall be construed as a waiver by the Lender of any immunities, defenses, or other limitations on liability to which the Lender is entitled by law, including but not limited to the maximum monetary limits on liability established by Minnesota Statutes, Chapter 466. Section 12.20. Publicity and Endorsement. (a) Publicity. Any publicity regarding the subject matter of this loan contract must identify the State as the sponsoring agency. For purposes of this provision, publicity includes notices, informational pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for the Grantee individually or jointly with others, or any subcontractors, (02091854.DOCX) 14 with respect to the program, publications, or services provided resulting from this grant contract. (b) Didorse7nent. The Grantee and the Borrower must not claim that the State endorses it's products or services. [Remainder of page intentionally blank] {02091854.DOCX} 15 IN WITNESS WHEREOF, the Lender has caused this Agreement to be duly executed in its name and behalf and the Borrower has caused this Agreement to be duly executed in its name and behalf as of the date first above written. LENDER: City of Eagan By: Mike Maguire Its: Mayor By: Christina M. Scipioni Its: Clerk BORROWER: {02091854.DOCX} 16 EXHIBIT A Legal Description/Address of Development Property Lot 1, Block 1, Hussain Addition, according to the recorded plat thereof, Dakota County, Minnesota. {02091854.DOCX} EXHIBIT B List of Equipment {02091854.DOCX} SECURITY AGREEMENT This security agreement (the "Security Agreement") is made and given as of this day of , 2016, by J & J Solutions, Inc. d/b/a Corvida Medical with its principal place of business at 2261 Crosspark Road, Suite 127, Coralville, IA 52241 (the "Borrower") in favor of the City of Eagan, with its offices at 3830 Pilot Knob Road, Eagan, MN 55122 and its endorsees, successors and assigns (the "Lender"). RECITALS A. Lender and Borrower have entered into a certain Loan Agreement, dated as of the date hereof (the "Loan Agreement"), pursuant to which Lender will loan to Borrower no more than $400,000 (the "Loan") to assist with the purchase of equipment, automation tooling, molds, manufacturing cells and fixtures on the Development Property. The Borrower has agreed to grant to the Lender a security interest in certain pieces of equipment (the "Equipment) described on the Exhibit B attached hereto, such Equipment to be located at the Development Property site .described on the Exhibit A attached hereto (the "Development Property"). Borrower's payment obligations under the Loan Agreement will be evidenced by a promissory note (the "Note") dated as of the date hereof. B. As security for the repayment of the Loan, Lender has required that Borrower execute and deliver to Lender this Security Agreement granting a security interest to Lender in the Equipment. C. The Note, this Security Agreement, and any other instruments or documents given as security for the Loan are herein referred to as the "Loan Documents". NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged by Borrower, it is agreed as follows: I Grant of Security Interest. As security for the payment and performance of the Note and all other liabilities, obligations, and indebtedness of Borrower to Lender due or to become due, direct or indirect, absolute or contingent, joint or several, howsoever created, now or hereafter at any time created, arising, or evidenced under or pursuant to the Note or this Agreement or any other document or instrument evidencing or securing the Note, Borrower' acknowledges the intent of Lender to take a first purchase money security interest (the "PMSI") in and further does hereby transfer, assign, and grant to Lender a security interest in all of Borrower's right, title, and interest in and to the following (hereinafter collectively referred to as the "Collateral"), whether now owned or hereafter acquired or arising: (a) the Equipment; and (b) any and all proceeds of the foregoing. {02091851.Docx} Borrower agrees to provide all reasonable cooperation requested by Lender in connection with the PMSI. 2. Borrower's Representations, Warranties and Covenants. Borrower represents, warrants, covenants, and agrees: Organization. Borrower is an Iowa corporation validly existing and in good standing under the laws of the state of Iowa and doing business in Minnesota, and Borrower has full power and authority to execute, deliver, and perform the Loan Documents, and to own its property and conduct its business as presently conducted and as proposed to be conducted. (b) Authorization. The execution, delivery, and performance of this Security Agreement have been duly authorized by all necessary action and will not: (i) require any consent or approval of any entity that has not been obtained; or (ii) violate any provision of any indenture, contract, agreement, or instrument to which Borrower is a party or by which it is bound. (c) Performance by Borrower: Unless Borrower obtains Lender's prior written consent, Borrower shall not: (i) terminate its interest in any of the Collateral; or (ii), sell, transfer, or assign, or offer to sell, transfer or assign all or any part of the Collateral or permit all or any part of the Collateral to be sold, transferred, or assigned; or (iii) , remove or consent to the removal of any of the Equipment from the Development Property. (d) Title to Collateral. Borrower shall keep good marketable title to all of the Collateral, and none of the Collateral is subject to any lien or security interest except for the security interest created by this Security Agreement, security interests shown of record in the office of the Iowa Secretary of State as of the date hereof and other security interests consented to in writing by Lender. Lender acknowledges there are blanket security interests shown in the UCC filing records of the Iowa Secretary of State, recorded prior to the date of this Security Agreement, but it is Lender's intent to create a purchase money security interest in the collateral. Borrower has not granted, and will not grant or permit to exist, any lien or security interests in all or a portion of the Collateral other than the liens in favor of Lender, liens or security interests shown of record in the office of the Iowa Secretary of State as of the date hereof, as such lines may attach to the Collateral, and other liens consented to in writing by Lender. Borrower shall (02091851.DOCx) 2 defend the Collateral against all claims and demands of all and any other persons at any time claiming any interest therein adverse to Lender. (e) Actions and Proceedings. There are no actions at law, suits in equity, or other proceedings pending before or expected to be filed with any governmental agency, commission, bureau, tribunal, or other arbitration proceedings against or affecting Borrower that if adversely determined would adversely affect Borrower's interest in the Collateral or would adversely affect the rights of Borrower to pledge and assign all or a part of the Collateral or the rights and security afforded Lender hereunder. (f) Insurance. Borrower agrees it will keep the Equipment insured at all times against loss by fire and other hazards concerning which, ;in the judgment of Lender, insurance protection is reasonably necessary and in amounts sufficient to protect against loss or damage of the Equipment. Such policy or policies will contain a loss payable clause in favor: of Lender or its successors or assigns, in form satisfactory to Lender, provided,, however, that Borrower may, at its reasonable discretion, self -insure the Equipment. (g) No Fixture. If any of the Collateral is or becomes a fixture, Borrower agrees to furnish Lender, at Lender's request, with a statement or statements signed by all persons who have or claim an interest in the real estate concerned, which statements shall provide that the signer :consents to the security interest created hereby anddisclaims any interest in the Collateral as fixtures. (h) Understandings Regarding Collateral. Borrower acknowledges that the Collateral is of the design, and manufacture specified for and by Borrower, and that Borrower is satisfied that the same is suitable for its intended purposes. Borrower further acknowledges and agrees that Lender has not made, and does not make, any representation, warranty, or covenant with respect to merchantability, fitness for any purpose, durability, patent, copyright or economic mark infringement, suitability, or capability of any item of Collateral in any respect or in connection with any other purpose or use of Borrower, or any other representation, warranty, or covenant of any kind or character expressed or implied with respect thereto. Borrower accordingly agrees not to assert any claim whatsoever against Lender based thereon. Borrower further agrees, regardless of cause, not to assert any claim whatsoever against Lender for loss of anticipatory profits or consequential damages. (i) Use of Collateral. The Collateral will be used for its intended business purpose and will at all times be located at the Development Property, 0) Condition of Collateral. Borrower will keep the Collateral in good condition and repair, reasonable wear and tear excepted, will permit Lender to enter upon the Development Property at reasonable times for the purpose of (02091851.Docx) 3 examining the Collateral. (k) Costs of Collection. In the event of any action or proceeding to collect or realize upon the Collateral or to enforce any of Lender's rights hereunder, Borrower shall pay: (i) all of Lender's attorneys' fees and other legal expenses, with interest thereon, incurred by Lender; (ii) all taxes, levies, insurance expenses, :and costs of repairs to, or maintenance of, the Collateral; and (iii) all costs of Lender incurred in taping possession of, disposing of or preserving the Collateral after any Event of Default (defined below). 3. Event of Default. Upon the event of a default under the Loan Agreement, Lender may exercise any remedy available to it under the terms of the Loan Agreement. 4. Further Assurances. Borrower shall execute and deliver to Lender, promptly and at Borrower's expense, Uniform Commercial Code ("Code") financing statements and evidence of tax filings and payments, including without limitation a UCC -1 Financing Statement in substantially the form set forth by the Iowa Secretary of State's Office and Minnesota Secretary of State's Office. Borrower agrees that: (i) Lender is authorized, at its option, to file a carbon, photographic, or other reproduction of this Agreement as a financing statement and that such statement shall be sufficient as a financing statement under the Code; and (ii) Lender is authorized to file financing statements or amendments thereto without the signature of Borrower, provided that if a signature is required by law, then Borrower appoints Lender as Borrower's attorney-in-fact to execute any such financing statements. 5. Cumulative Remedies. All of Lender's rights and remedies herein are cumulative and in addition to any rights or remedies available at law or in equity including the Code, and may be exercised concurrently or separately. Borrower shall pay all costs, expenses, losses, damages and legal costs (including attorneys' fees) incurred by Lender as a result of enforcing any terms or conditions of this Agreement. 6. No Liabilityposed on Lender. Lender shall not be obligated to perform or discharge, nor `does it hereby undertake to perform or discharge any obligation; duty, or liability, nor shall this Agreement operate to place responsibility for the control, care, or management of the Equipment upon Lender. 7. Indemnification. Borrower agrees to defend, protect, indemnify and hold Lender harmless of and from any and all liability, loss, and damage that Lender does, may, or might incur under or by reason of this Agreement, and of and from any and all claims and demands whatsoever which may be asserted against Lender by reason of any alleged obligations or undertakings to perform or discharge any of the terms, covenants, or {02091 as 1.Docx} 4 agreements contained herein. Should Lender incur any such liability or be required to defend against any such claims or demands, or should a judgment be entered against Lender, the amount thereof, including costs, expenses, and reasonable attorney's fees, shall bear interest thereon at the rate then in effect on the Note, shall be secured hereby, shall be added to the Loan, and Borrower shall reimburse Lender for the same immediately upon demand, and upon the failure of Borrower so to do, Lender may declare the Loan immediately due and payable. 8. Expenses of Lender. All expenses in protecting, storing, warehousing, insuring, handling, and shipping of the Collateral, all costs of keeping the Collateral free of liens, encumbrances and security interests (other than the security interest created by this Agreement) and the removing of the same and all excise, property, sales, and use taxes imposed by state, federal, or local authority on any of the Collateral or with respect to the sale thereof, shall be borne and paid for by Borrower and if Borrower fails to promptly pay any amounts thereof when due, Lender may, at its option, but shall not be required to, pay the same, and upon such payment the same shall constitute obligations and shall bear interest at the rate specified in the Note and shall be secured by the security interests granted hereunder. 9. Continuing Rights. The rights and powers of Lender hereunder shall continue and remain in full force effect until the Loan, is paid in full. 10. Books and Records. Borrower will pernit Lender and its representatives to examine Borrower's books and records (including data processing records and systems) with respect to the Collateral and make copies thereof at any time and from time to time, and Borrower will furnish such information reports to Lender and its representatives regarding the Collateral as Lender and its representatives may from time to time request. Lender shall have the authority, at any time, to require Borrower to place upon Borrower's books and records relating to the Collateral and other rights to payment covered by the security interest created in this Agreement a notation stating that any such Collateral and other rights of payment are subject to a security interest in favor of Lender. 11. Effect on Other Agreements. Nothing in this Agreement shall be construed to modify any tern of any other agreement to which Lender and Borrower are parties. 12. Release and .Indemnification Covenants. Except for any breach of the representations- and warranties of Lender or the negligence or other wrongful act or omission of the following named parties, Borrower agrees to protect and defend Lender and the governing body members, officers, agents, servants and employees thereof, now and forever, and further agrees to hold the aforesaid harmless from any claim, demand, suit, action or other proceeding whatsoever by any person or entity whatsoever arising or purportedly arising from the acquisition, construction, installation, ownership, maintenance, and operation of the Equipment. 13. Modifications. This Agreement may be modified solely through written amendments hereto executed by Lender and Borrower and approved by the State. (02091851.DOCX) 5 14. Notices and Demands. Any notice, demand, or other communication under this Agreement by either party to the other shall be sufficiently given or delivered only if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally: (a) as to the Lender: City of Eagan ATTN: Community Development Director 3830 Pilot Knob Road Eagan, MN 55122 (b) as to the Borrower: J & J Solutions, Inc. d/b/a Corvida Medical 2261 Crosspark Road, Suite 127 Coralville, IA 52241 or at such other address with respect to any party as that party may, from time to time, designate in writing and forward to the others as provided in this Section 14. 15. Conflict of Interests; Representatives Not Individually Liable. No officer or employee of Lender may acquire any financial interest, direct or indirect, in this Agreement, the Equipment, or in any contract related to the Equipment. No officer, agent, or employee of Lender shall be personally liable to Borrower, or any successor in interest, in the event of any default or breach by Lender or for any amount which may become due to Borrower or on any obligation or term of this Agreement. 16. Binding Effect. The covenants and agreements in this Agreement shall bind and benefit the heirs, executors, administrators, successors, and assigns of the parties to this Agreement. 17. Merger. None of the, provisions of this Agreement are intended to or shall be merged by reason of any deed transferring any interest in the Development Property and any such deed shall not be deemed to affect or iinpair the provisions and covenants of this Agreement. 18. Titles .of Articles and Sections. Any titles of the several parts, Articles, and Sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. 19. Counterparts, This Agreement may be executed in any number of counterparts, each of whom shall constitute one and the same instrument. 20. Choice of Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the state of Minnesota without regard to its conflict of laws provisions. Any disputes, controversies, or claims arising out of this Agreement shall be heard in the state or federal courts of Minnesota, and all parties to this {02091851.DOCX} 6 Agreement waive any objection to the jurisdiction of these courts, whether based on convenience or otherwise. 21. Waiver. The failure of any party to take any action or assert any right or remedy, or the partial exercise by any party of any right or remedy, shall not be deemed to be a waiver of such action, right, or remedy if the circumstances creating such action, right, or remedy continue or repeat. 22. Entire Agreement. This Agreement, with the other Loan Documents constitutes the entire agreement between the parties pertaining to.its subject matter and it supersedes all prior contemporaneous agreements, representations, and understandings of the parties pertaining to the subject matter of this Agreement. 23. Separability. Wherever possible, each provision of this ;.Agreement and each related document shall be interpreted so that it is valid under applicable law. If any provision of this Agreement or any related document is to any extent found invalid by a court or other governmental entity of competent jurisdiction, that provision shall be ineffective only to the extent of such invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement or any other related document. 24. Immuni . Nothing in this Agreement shall be construed as a waiver by the Lender of any immunities, defenses, or other limitations on liability to which the Lender is entitled by law, including but not limited to the maximum monetary limits on liability established by Minnesota Statutes, Chapter 466. 25. Other Matters. All representations and warranties contained in this Agreement or in any other agreement between Borrower and Lender shall survive the execution, delivery and performance "' of this Agreement and the creation and payment of any indebtedness to ,Lender. Borrower waives notice of the acceptance of this Agreement by Lender. IN WITNESS WHEREOF, Lender has caused this Agreement to be duly executed in its name and behalf and Borrower has caused this Agreement to be duly executed in its name and behalf as of the date :first above written. LENDER: City of Eagan By: Mike Maguire Its: Mayor {02091851.Docx} 7 Christina M. Scipioni Its: Clerk BORROWER: J & J Solutions, Inc., an Iowa corporation d/b/a Corvida Medical {02091851.DOCX} 8 EXHIBIT A TO SECURITY AGREEMENT DEVELOPMENT PROPERTY LEGAL DESCRIPTION Lot 1, Block 1, Hussain Addition, according to the recorded plat thereof, Dakota County, Minnesota. {02091851: DOCXI EXHIBIT B TO SECURITY AGREEMENT DESCRIPTION OF EQUIPMENT {02091851. DOCXI PROlVHSSORY NOTE $400,000.00 2016 J & J Solutions, Inc., an Iowa Corporation, d/b/a Coivida Medical (the "Borrower"), for value received, hereby promises to pay to the City of Eagan (the "Lender") or its assigns, at its designated principal office or such other place as the Lender may designate in writing, the principal sum of Four Hundred Thousand and No/100 Dollars ($400,000.00) as may be advanced under this Note, with interest as hereinafter provided, in any coin or currency which at the time or times of payment is legal tender for the payment of private debts in the United States of America. The principal of this Note is payable in installments due as follows: I The Loan shall bear interest at a rate of zero percent; (0.0%) per annum and interest shall commence to accrue as of the Initial Disbursement Date as defined in the Loan Agreement, as hereinafter defined 2. The Loan may be disbursed in up to three installments, which installments are referred to herein as Tranche A, Tranche B and Tranche C. The repayment of the Loan amounts may occur as follows: a. Tranche A: Payments of principal of Tranche A shall commence on the first day of the first month'' immediately following the Initial Disbursement Date, and continue on the first day of each and every month thereafter. The monthly payment for Tranche A shall be made in 72 equal monthly payments in the amount of $2,730.00 monthly payments. Such payments shall fully amortize the Loan over seventy-two (72j months; provided, however, the entire remaining unpaid balance of principal shall be due and payable in full on August 1, 2022. b. Tranche B: The date of disbursement of Tranche B is referred to herein as the Tranche B Disbursement Date. Payments of principal of Tranche B shall commence on the first dayof the first month immediately following the Tranche B Disbursement Date, and continue on the first day of each and every month thereafter. The monthly payment for Tranche B shall be determined by the following formula: a) the numerator being the amount of the Tranche B disbursement; and b) the denominator being the number of whole months starting with the date of the Tranche B disbursement date through August 1, 2022. c. Tranche C: The date of disbursement of Tranche C is referred to herein as the Tranche C Disbursement Date. Payments of principal of Tranche C shall commence on the first day of the fust month immediately following the Tranche C Disbursement Date, and continue on the first day of each and every month thereafter. The monthly payment for Tranche B shall be determined by the following formula: a) the numerator being the amount of the Tranche B disbursement; and b) the denominator being the number of whole months starting with the date of the Tranche C disbursement date through August 1, 2022, 3. However, if the goajs are not met by the Compliance Date (as those terms are defined in the Loan Agreement), the Borrower agrees to repay all or a part of the principal amount of this Note on a pro rata basis and an accelerated basis (as further described in Section 3 the "Recaptured Principal"), plus interest set at the greater of 3.0% or the implicit price deflator defined in Minnesota Statutes, Section 275.70, Subdivision 2 ("Recapture Interest"), accruing from and after the Initial Disbursement Date, compounded annually. Recaptured Principal plus Recapture Interest thereon shall be repaid not later than 30 days after the Lender notifies the Developer of the amount to be repaid pursuant to Section 7.1 of the Loan Agreement. If the goals are only met in part on the Compliance Date, the Borrower will repay a pro rata portion of the principal amount of this Note (plus Recapture Interest). 4. The Borrower shall have the right to prepay the principal of this Note, in whole or in part, without prepayment penalty. 5. This Note is given pursuant to the Loan Agreement and is secured by a Security Agreement of even date herewith (the "Security Agreement") covering certain personal property located in Dalcota County, Minnesota. In the event any such security is found to be invalid for whatever reason, such invalidity shall constitute an event of default; hereunder. All of the agreements, conditions, covenants, provisions, and stipulations contained in the Loan Agreement, or any instrument securing this Note are hereby made a part of this Note to the same extent and with the same force and effect as if they were fully set forth herein. It is agreed that time is of the essence of this Note. If a default occurs under the Loan Agreement, or any instrument securing this Note, then the Lender of this `Note may at its right and option, without notice, declare immediately due and payable the pr ncipal balance of this Note, together with any costs of collection including attorney fees incurred by the Lender of this Note in collecting or enforcing payment hereof, whether suit be brought or not, and all other sums due hereunder, or under any instrument securing this Note. The Borrower agrees that the Lender of this Note may, without notice to the Borrower of this Note and without affecting the liability of the Borrower of this Note, accept additional or substitutesecurity for this Note, or release any security or any party liable for this Note or extend or renew this Note. 6. The remedies of the Lender of this Note as provided herein, and in the Loan Agreement, or any other instrument securing this Note, shall be cumulative and concurrent and may be pursued singly, successively, or together, and, at the sole discretion of the Lender of this Note, may be exercised as often as occasion therefore shall occur; and the failure to exercise any such right or remedy,shall in no event be construed as a waiver or release thereof. The Lender of this Note shall not be deemed, by any act of omission or commission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the Lender of this Note and then only to the extent specifically set forth in the writing. A waiver with reference to one event shall not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event. This Note may not be amended, modified, or changed except only by an instrument in writing signed by the party against whom enforcement of any such amendment, modifications, or change is sought. 2 7. This Note shall be governed by and construed in accordance with the laws of the state of Minnesota without regard to its conflict of laws provisions. Any disputes, controversies, or claims arising out of this Note shall be heard in the state or federal courts of Minnesota, and all parties to this Note waive any objection to the jurisdiction of these courts, whether based on convenience or otherwise. 8. The headings used in this Note are solely for convenience of reference, are no part of this Note, and are not to be considered in construing or interpreting this Note. 9. This Note, with the other Loan Documents, constitutes the entire Note between the parties pertaining to its subject matter and it supercedes all prior contemporaneous Notes, representations, and understandings of the parties pertaining to the subject matter of this Note. 10. Separability. Wherever possible, each provision of this Note and each related document shall be interpreted so that it is valid under applicable law. If :any provision of this Agreement or any related document is to any extent found invalid by a court or other governmental entity of competent jurisdiction, that provision shall be ineffective only to the extent of such invalidity, without invalidating the remainder of such provision or the remaining provisions of this Note or any other related document. 11. IT IS HEREBY CERTIFIED AND RECITED that all conditions, acts, and things required to exist, happen, and be performed precedent to or in the issuance of this Note do exist, have happened, and have been performed in regular and due form as required by law. IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed as of the _day of , 2.016. J & J Solutions, Inc., an Iowa corporation, d/b/a Corvida Medical By: Its: Agenda Information Memo August 1, 2016, Eagan City Council Meeting OLD BUSINESS A. Ordinance Amendment to City Code Chapter 11 relative to temporary family dwellings — City of Eagan Action To Be Considered: To approve an Ordinance Amendment to Chapter 11, Section 11.40, Subd. 11, relative to temporary dwellings. Required Vote For Approval: Majority of Council Members Present Facts: ➢ The Governor signed into law an option for property owners to provide transitional housing for seniors; specifically, to allow a temporary family health care dwelling to be placed in the yard or driveway of a single family lot. Local governments were provided an opt out option from the program if they determine this type of expedited land use permitting was not well-suited to their community. ➢ The City of Eagan adopted an Accessory Dwelling Unit (ADU) ordinance that can accommodate the creation of a temporary or permanent private dwelling space within the principal structure. ➢ Opting out is required to be done by ordinance prior to September 1, 2016, when the law goes into effect. ➢ The APC held the Public Hearing on July 28 and they are recommending approval of the Ordinance Amendment. Attachments: (3) OBA-1 Draft July 26, 2016, APC Minutes OBA-2 Planning Report OBA-3 Draft Ordinance Advisory Planning Commission July 26, 2016 Page 8 of 9 C. Temporary Family Dwellings Application: Ordinance Amendment An Ordinance Amendment to City Code Chapter 11 relative to temporary family dwelling. File Number: 01 -OR -02-07-16 City Planner Ridley introduced this item and highlighted the information presented in the City Staff report dated July 18, 2016. Chair Fillpi opened the public hearing. There being no public comment, Chair Fillpi closed the public hearing and turned the discussion back to the Commission. Member Sagstetter moved, Member Piper seconded a motion to recommend approval of an Ordinance Amendment to Chapter 11, Section 11.40, Subd. 11, relative to temporary dwellings. Chair Fllipi commented that read the state legislation and found it somewhat troubling. He further stated that he is pleased the City has an ADU ordinance in place, with better performance standards, as an alternative to the state legislation. All voted in favor. Motion carried 6-0. PLANNING REPORT CITY OF EAGAN REPORT DATE: July 18, 2016 APPLICANT: City of Eagan PROPERTY OWNER: N/A REQUEST: Ordinance Amendment LOCATION: City-wide COMPREHENSIVE PLAN: N/A ZONING: N/A SUMMARY OF REQUEST CASE: 01 -OR -02-07-16 HEARING DATE: July 26, 2016 PREPARED BY: Michael J. Ridley, AICP The City of Eagan is requesting approval of an Ordinance Amendment to City Code, Section 11.40, Subd. 11. relative to Temporary Dwellings. BACKGROUND/HISTORY On May 12, 2016, Governor Dayton signed into law the creation and zoning regulations for temporary family health care dwellings to be placed in the yard or driveway of a single family lot as a permitted use that could not be prohibited by local ordinance. The new law also provides an "opt out" option for municipalities. The law defines "Temporary family health care dwelling" as a mobile residential dwelling providing an environment facilitating a caregiver's provision of care for a mentally or physically impaired person ... At their regular meeting of June 21, 2016, the City Council directed staff to initiate an Ordinance Amendment to allow Eagan to officially opt out. EXISTING CONDITIONS The City Code presently allows Accessory Dwelling Units (ADU) that can accommodate the creation of a temporary or permanent private dwelling space within the principal single family residential structure. Planning Report — Ordinance Amendment July 26, 2016 Page 2 EVALUATION OF REQUEST The City's ADU ordinance is written to provide an option to create a separate living unit within an existing detached single family structure. The City Council determined that the temporary dwelling option was not in the City's best interest given existing City Code accommodations and directed staff to take the necessary steps to opt out. SUMMARY/CONCLUSION The City's existing ADU ordinance provides a viable option for residents looking to provide separate dwelling options for caretaking or other purposes. The City Attorney prepared the attached draft Amendment. ACTION TO BE CONSIDERED To recommend approval of an Ordinance Amendment to Chapter 11, Section 11.40, Subd. 11, relative to temporary dwellings. ORDINANCE NO. 2ND SERIES AN ORDINANCE OF THE CITY OF EAGAN, MINNESOTA, AMENDING EAGAN CITY CODE CHAPTER ELEVEN ENTITLED "LAND USE REGULATIONS" BY ADDING SECTION 11.40, SUBD. 11, UNDER WHICH THE CITY "OPTS -OUT" OF THE REQUIREMENTS OF MINNESOTA STATUTES, SECTION 462.3593 (LAWS 2016, CHAPTER 111, SECTION 3) GOVERNING TEMPORARY FAMILY HEALTH CARE DWELLINGS The City Council of the City of Eagan does ordain: Section 1. Chapter 11 of the Eagan City Code is hereby amended by adding §11.40, subd. 11, to read as follows: SUBD. 11. Opt -Out of Temporary Family Health Care Dwelling Zoning Laws. A. Purpose. On May 12, 2016, Governor Mark Dayton signed into law the creation and zoning regulations of temporary family health care dwellings, as defined in and codified as Minn. Stat. § 462.3593 (Laws 2016, Chapter 111, Section 3). This new law provides that a municipality may, by ordinance, "opt out" of the application of the requirements of this new law. Pursuant to authority granted by Minnesota Statutes, Section 462.3593, subdivision 9, it is in the best interest of the City and its residents that the City of Eagan not be subject to the mandates of Minnesota Statutes, Section 462.3593 requiring temporary dwellings be allowed in residential districts. B. Exercise of Opt -out. The City opts out of the application of the requirements of Laws 2016, Chapter 111, section 3, codified at Minn. Stat. §462.3593, and accordingly the provisions therein shall not apply within the City. Section 2. Effective date. This ordinance shall take effect upon its adoption and publication according to law. ATTEST: CITY OF EAGAN City Council By: Christina M. Scipioni By: Mike Maguire Its: City Clerk Its: Mayor Date Ordinance Adopted: Date Ordinance Published in the Legal Newspaper: Date of Advisory Planning Commission Hearing: Agenda Information Memo August 1, 2016, Eagan City Council Meeting NEW BUSINESS A. Preliminary Planned Development and Final Planned Development — The Gardner Preschool Actions To Be Considered: To approve a Preliminary Planned Development to allow the development of an approximately 16,200 s.f. single -story childcare facility upon property located at 1195 Town Centre Drive, subject to the conditions listed in the APC minutes, as amended. Because this is a single -lot development, approval of the Preliminary Planned Development Amendment will also constitute approval of the Final Planned Development upon recording of the Final PD Agreement. Required Vote For Approval: ➢ Preliminary Planned Development and Final PD —At least three votes Facts: ➢ The applicant is proposing to clear the site and redevelop the property with a one-story approximately 16,200 s.f. child care facility. ➢ The existing Eagan Heights Commercial Park PD, established in 1985, designates the property as CSC (Community Shopping Center) zoning and as such, the evaluation of the proposal is as compared to CSC standards. ➢ The site was originally developed in 1991 for use as an automobile emission testing facility. ➢ A Final PD was approved in 2000 to allow a 4,800 sf retail/office/warehouse building for the operation of an elevator or lift sales and service company which remodeled the existing building. ➢ With the change in use and redevelopment of the existing site; a new Preliminary Planned Development is warranted. ➢ The proposal satisfies typical CSC zoning standards and no deviations are requested. ➢ Approval of the Preliminary Planned Development constitutes the Final Planned Development approval upon recording of the Final PD Agreement. ➢ A public hearing was held at the July 26, 2016, Advisory Planning Commission meeting and the APC did recommend approval. Issues: None 60 -Day Agency Action Deadline: ➢ August 14, 2016 Attachments: (4) NBA -1 Location Map NBA -2 Draft July 26, 2016 APC Minutes NBA -3 Planning Report NBA -4 Report Exhibits u Advisory Planning Commission July 26, 2016 Page 2 of 9 IV. PUBLIC HEARING New Business A. The Gardner School Applicant Name: Jay Joiner, The Gardner School Location: 1195 Town Centre Dr; Lot 1, Block 1, Town Centre 100 Ninth Addition Application: Preliminary Planned Development A Preliminary Planned Development to allow a 16,200 sq. ft. daycare and early childhood education facility. File Number: 15 -PD -03-06-16 Planner Thomas introduced this item and highlighted the information presented in the City Staff report dated July 19, 2016. Chair Filipi opened the public hearing. There being no public comment, Chair Filipi closed the public hearing and turned the discussion back to the Commission. Member Vanderpoel asked about the amount of parking provided, and whether it is sufficient for both staff and families using the daycare. Mr. Joiner stated not all staff drive to the school, and the family drop-offs and pick-ups are staggered over a few hours In the morning and evening, so there is no big rush all at once. Member Vanderpoel asked about whether the materials from the existing building demolition would be reused or recycled. Mr. Joiner stated there are no hazardous materials in the existing building to be mitigated. They do not plan to reuse any of the materials, and they will use a demolition contractor who will properly dispose of the materials. Member Heckman asked about parking for special events. Mr. Joiner Indicated there are 2-3 such special events per year and they have had no complaints at their other facilities about a lack of parking on those occasions. Mr. Piper clarified the verbiage to add a condition requiring a tree inventory and mitigation plan be provided. Member Piper moved, Member Vanderpoel seconded a motion to recommend approval of a Preliminary Planned Development to allow the development of an approximately 16,200 s.f. single -story childcare facility upon property located at 1195 Town Centre Drive. Approval of the Preliminary Planned Development simultaneously constitutes the Final Planned Development for the property, subject to the following conditions as amended: Advisory Planning Commission July 26, 2016 Page 3 of 9 A Final Planned Development Agreement shall be executed and recorded with the Dakota County Recorder's office. The following exhibits shall be required for the Agreement: • Final Site Plan • Final Building Elevations • Final Landscape Plan • Final Site Lighting Plan 2. The building shall meet City Code standards for exterior materials to be verified at the time of Building Permit application. 3. Rooftop mechanical units shall be screened by a physical screen if the parapet wall and setback placement are not suffice. 4. A detailed grading, drainage, erosion, and sediment control plan shall be prepared in accordance with current City standards and codes prior to Building Permit approval. 5. All erosion/sediment control plans submitted for development and grading permits shall be prepared by a designer who has received current Minnesota Department of Transportation (MNDOT) training, or approved equal training as determined by the City Engineer in designing stormwater pollution prevention plans. 6. All personnel responsible for the construction and management of erosion/sediment control devices, and the establishment of vegetation for the development, shall have received Erosion/Sediment Control site management certification through the University of Minnesota, or approved equal training as determined by the City Engineer. 7. Erosion control measures shall be installed and maintained in accordance with City code and engineering standards. 8. No retaining walls shall be allowed in the drainage and utility easement along the entire east property line. 9. The developer shall meet the City's post Construction Stormwater Management Requirements (City Code §4.34) for stormwater management and surface water quality, including Runoff Rate Control and 1.1" Volume Control on the site's new and fully - reconstructed impervious surface area (including effective soil remediation to ensure soil permeability for the site's disturbed soils that are to be revegetated). 10. The developer shall provide adequately sized and planned pre-treatment (e.g. sediment filter structure, etc.) at, or immediately upstream of, all stormwater management facilities (e.g. infiltration basin) inlets to provide for effective capture and easily -accessible cleanout of coarse particles, fine -sand sized particles and floatable pollutants. Details shall be included in applicable plan sheet(s) 11. Prior to receiving City approval to permit land disturbing activity, the developer shall provide the City with soil boring logs from each proposed infiltration/filtration area, extending a minimum of 10' below the bottom of the proposed infiltration/filtration feature, to evaluate and ensure suitability for infiltration. If the soil boring logs indicate incompatibility of existing sub -soil permeability with the submitted and reviewed design plans for meeting volume control requirements, the developer shall revise the design Advisory Planning Commission July 26, 2015 Page 4 of 9 and/or construction plans (e.g. over-excavation/soil-amendment depth, etc.), and if justified and permitted by the City shall follow the sequencing order in the Permissible Alternative Stormwater Volume Control Designs, to ensure volume control requirements are fully met. 12. Prior to receiving city approval to permit land disturbing activity, the developer shall provide construction details of the proposed infiltration systems for City review/acceptance by the City Engineer and include in construction plans. Construction details shall include infiltration basin cross-section(s), Individual practice drainage area/sizing/volume tables, maximum depth of 1.5 -feet (not including below -grade soil media depth), details and elevations for stable inlets/outlets/emergency overflows, public storm sewer connection details (e.g. coring only, etc.), soil media criteria, live planting and seeding details, temporary & permanent erosion -control protection details (e.g. rows of sediment protection at the top and base of side slope, erosion -control blanket, etc.), construction sequencing/protection/restoration notes (e.g. no equipment within basin, etc.) and other details and notes to ensure infiltration practices are properly designed, constructed, planted, and adequately protected during / after construction to prevent clogging, and will be able to be properly maintained to function as intended. These graphical details and notes shall be prominently includedin all applicable plan sheets (e.g. Grading Plan, Utility Plan, etc.). All infiltration basins shall include live -plantings with a minimum of 18 -inch on -center plant spacing. 13. Prior to receiving city approval to permit land disturbing activity, the developer owner shall provide detailed Soil Management Strategies for City -review, and acceptance by the City Engineer, that provide clear assurances that by final grading, prior to installation of any irrigation and plantings, the disturbed areas that are to be revegetated will have protected and/or restored soil permeability to non -compacted soil conditions In the top 12" of soil with no less than 5% soil organic matter content and less than 200 psi of soil compaction in the top 12" of topsoil, to comply with Volume Control requirements. These graphical details and notes on soil protection/restoration shall be included in the Stormwater Management Plan and prominently included in all applicable plan sheets (e.g. Erosion & Sediment Control Plan, Grading & Drainage Plan, Landscape Plan, etc.). 14. Prior to proceeding with land disturbing activity, the developer shall enter into a long- term stormwater management system maintenance agreement with the City, detailing the annual inspection and maintenance required to occur to ensure proper operation and performance of the permanent stormwater management system on each parcel, in a form acceptable to the City Attorney. 16. Before the City returns any Stormwater-related Performance Guarantee Fees on the development site, Soil Management Strategy Implementation documentation (e.g. representative on-site soil samples, compaction testing and soil organic content test results) shall be provided to City Water Resources staff to verify approved soil management strategy compliance. 16. During infiltration/filtration system area over-excavation/sub-soil work, the developer shall provide verifying documentation that practice area sub -soils are suitable for a saturated condition infiltration rate of 0.9 -inch per hour or greater (but less than 8.0 -inch per hour). If the sub -soil infiltration rates are less than 0.9 -inch per hour (or greater than 8.0 -inch per hour), the developer shall immediately notify the City Engineer. Documentation shall be provided to the City within 48 -hours after infiltration testing. The Advisory Planning Commission July 26, 2016 Page 5 of 9 developer shall provide the City Water Resources staff with 24-hour advance notice of the occurrence of infiltration verifications and also prior to any excavation and/or soil backfilling within the infiltration practices (City Water Resources staff contactlinstructions shall be clearly/prominently listed on appropriate plan sheets). 17. Before the City returns any Stormwater-related Performance Guarantee Fees on the development site, the developer shall provide the City Engineer as -built plans that demonstrate that all constructed stormwater conveyance structures, stormwater management facilities (e.g. infiltration practices) and soil management strategies conform to design and/or construction plans, as approved by the City. As -built volumes (for retention) shall be provided for the infiltration practices. The developer shall submit to the City Engineer certification that the stormwater management facilities have been installed in accord with the plans and specifications approved. This certification shall be provided by a Professional Engineer or Landscape Architect licensed in the State of Minnesota. 18. The developer shall restore the sidewalk, street, curb and gutter, and boulevard damaged during Installation of the new water service, and abandonment of the old service, in a manner acceptable to the City Engineer. 19. Abandonment of the water and sanitary sewer services shall be performed according to City standards. 20. The developer shall provide hydrant spacing and locations in accordance with City Fire Department and Public Works standards. 21. The developer shall submit a proposal/infrastructure plan to be approved by staff to provide telecommunications fiber to the premises (FTTP). This development shall include the installation of fiber optic cable, or a conduit for future installation, in its construction plans at the time of Building Permit. 22. All public and private streets, drainage systems, and utilities necessary to provide service to this development shall be designed and certified by a registered professional engineer in accordance with City adopted codes, engineering standards, guidelines, and policies. 23. The developer shall be responsible for the acquisition of all regulatory agency permits required by the affected agency prior to Building Permit approval. 24. The developer shall enter into an encroachment agreement for the existing entrance monument that is located in a drainage and utility easement, in a form acceptable to the City Attorney, 25. Automatic irrigation shall be provided for all landscaped areas. A financial guarantee for installation of the landscaping shall be provided in accordance with the City's landscape ordinance, at the time of Building Permit. 26. The Landscape Plan shall be revised to specify the type and quantity of each plant, provide screening of the transformer equipment and to enhance the screening of the parking lot per City Code. Advisory Planning Commission July 26, 2016 Page 6 of 9 27. The Photometric Plan shall overlay the Site Plan and be revised so that the parking lot and drive aisle lighting achieves a minimum of 0.5 footcandles and shall include an overall average to minimum ratio to ensure that site lighting is uniform. 28. The trash enclosure shall be constructed of brick to match the building, with an opaque gate that is compatible with the building finish materials. 29. Building address numbers shall be installed consistent with the provisions of Section 2.78 of City Code. 30. The monument sign base shall be constructed of a masonry material to match the brick on the principal building. 31. The playground area shall be enclosed with decorative metal fencing and the Architectural Plan shall be revised to identify the fence details. 32. The -developer shall Inventory the trees on the property and provide a mitigation plan for staff review and approval prior to release of the Final Planned Development Agreement for recording. All voted in favor. Motion carried 6-0. PLANNING REPORT CITY OF EAGAN REPORT DATE: July 19, 2016 APPLICANT: The Gardner School PROPERTY OWNER: Access Lifts Inc REQUEST: Preliminary Planned Development LOCATION: 1195 Town Centre Drive COMPREHENSIVE PLAN: O/S-Office/Service ZONING: PD, Planned Development SUMMARY OF REQUEST CASE: 15 -PD -03-06-16 HEARING DATE: July 26, 2016 APPLICATION DATE: June 15, 2016 PREPARED BY: Sarah Thomas The developer is requesting approval of a Preliminary Planned Development to allow the development of an approximately 16,200 s.f. single -story childcare facility upon property located at 1195 Town Centre Drive, legally described as Lot 1, Block 1, Town Centre 100 Ninth Addition. As a single lot, one -phase development, approval of the Preliminary Planned Development simultaneously constitutes the Final Planned Development for the property upon execution and recording of the Final Planned Development Agreement. AUTHORITY FOR REVIEW Planned Development: City Code Chapter 11.60, Subd. 18, A., states the intent of the Planned Development zoning district as follows: 1. Providing greater flexibility in environmental design and relaxation of strict application of the zoning ordinance in exchange for greater creativity and environmental sensitivity. 2. Recognizing the economic and cultural advantages that will accrue to the residents of a planned community. 3. Encouraging a more creative and efficient approach to the use of the land. 4. Encouraging the preservation and enhancement of desirable site characteristics, natural features, and open space. Planning Report — The Gardner School July 26, 2016 Page 2 5. Encouraging a development pattern that is consistent with land use density, transportation facilities and community facilities objectives of the Comprehensive Plan. BACKGROUND/HISTORY The subject site is included in the Eagan Heights Commercial Park Planed Development that was approved in the summer of 1985. The Preliminary Planned Development Agreement stipulates that CSC, Community Shopping Center, district uses are intended on the property. The property was platted in 1991 and a Conditional Use Permit was approved to allow an automobile emission testing facility. A Final Planned Development was approved in 2000 to allow a 4,800 sf retail/office/warehouse building specifically to allow the operation of an elevator or lift sales and service company, which included a remodel of the Vehicle Emissions Center building. EXISTING CONDITIONS Access to the 1.7 acre is from Town Centre Drive which is a two lane roadway with concrete sidewalks on both sides. The northern half of the site is currently developed with a building and parking lot, and there are several large trees around the perimeter of the property. The site lies within the Shoreland Overlay District of O'Leary Lake; however, the site drains away from the Lake and therefore is not subject to the requirements of the Shoreland Overlay District. SURROUNDING USES The following existing uses, zoning, and comprehensive guide plan designations surround the subject property: Existing Use Zoning Land Use Designation North Medical Office PD, Planned Development SA/MU, Special Area/Mixed Use South Residential- Senior PD, Planned Development SA/OS, Special Housing Area/Office Service East Residential -Apartment PD, Planned Development SA/MU, Special Area/Mixed Use West Office PD, Planned Development SA/OS, Special Area/Office Service Planning Report — The Gardner School July 26, 2016 Page 3 EVALUATION OF REQUEST Description of Proposal — The proposed development consists of the construction of a single story childcare facility of approximately 16,200 sf. The facility would provide educational and childcare services for up to 205 children, (ages 6 weeks to 5 years of age) in 14 classrooms, and approximately 35 staff. The facility does not own or utilize busses/vans, thus they will not require parking as is the case with most other childcare facilities. The Site Plan identifies the building located on the northern portion of the property, with parking to the south and an outdoor playground located west of the building; a stormwater infiltration basin is located east of the building and a raingarden is located between the playground and parking lot. The playground area is enclosed by a 6'vinyl-coated, chain link fence with mesh fabric. The developer's narrative indicates construction of the property is intended to start fall 2016, and anticipated to be completed in fall 2017 to begin the new school year. The developer indicates the facility will operate from 6:30 a.m. to 6:30 p.m. Due to the location of the facility nearby high density residential, professional office, commercial and retail uses, the playground fence should be constructed of a decorative material. Further, chain link fence with mesh fabric is typically permitted only in Industrial areas. The decorative metal fence is similar to the playground fence recently approved at Prestige Preschool which is a 6' black metal fence and is also consistent with the decorative iron fence atop the retaining wall at the CityVue retail center. A decorative fence was also required with the At Home Apartments proposal, on the property to the east, earlier this year. The proposal is subject to a Preliminary Planned Development because it consists of a different use and redevelopment of the site that differs from the existing Final Planned Development Agreement. Compatibility with Surrounding — The surrounding area is a mix of residential and office uses. The proposed development is intended to blend in both functionally and aesthetically with the surrounding properties and uses. Public Benefit — The developer states the childcare facility would provide a first class daycare and early childhood educational facility to the City of Eagan and surrounding community residents. The narrative also indicates development of the site would "redevelop... what currently is an older building and deteriorating site ... to feature a new building comprised of high-quality materials such as stone and brick, increased greenspace and landscaping, and upgraded storm water treatment facilities." Bulk Standards — The Eagan Heights Commercial Park PD identified the parcel based on CSC, Community Shopping Center, zoning standards. As such, this proposal will be evaluated against typical CSC standards. Planning Report — The Gardner School July 26, 2016 Page 4 A Conforming Plan was not submitted as the area is already zoned PD and the proposal meets the bulk standard requirements found in the CSC zoning district. A similarly zoned Town Centre 100 parcel (1101 Town Centre Drive) located to the east of the subject site also contains a daycare facility. Setbacks — Both parking and building setbacks are satisfied. The following minimum setbacks apply to the property: Town Centre Dr. Side Yard Rear Yard Building 30' 10' 20' Parking 20' 5' Building Coverage — The proposed building coverage ratio is 22%, which is less than the typical CSC standard of a maximum 30%. Building Height — Proposed building height is approximately 18'. The building design includes a portico with an architectural cupola which increases the overall height to approximately 25'. This is consistent with the typical ordinance standard of 35'. Green Space — Commercial properties are subject to providing a minimum 30% green space. The proposed development provides 40% green space. Parking — The Site Plan proposes a total of 46 parking stalls for the proposed 16,200 sf daycare. This exceeds the typical standard for daycare facilities of ten parking stalls plus one stall for each 500 square feet of building or 42, in this case. The dimensional standards in the City Code also appear to be satisfied. The proposed parking stalls are 10' x 19', with a 24' two-way drive aisle, except for the parking stalls adjacent to the building. These stalls are 18' deep; however, the adjacent walkway is 10' in width and can accommodate an overhang from a vehicle. Grading — Site grading occurred with the initial development; however, the entire site will be disturbed during grading of the proposed re -development. The site generally slopes from southwest to northeast, with elevations ranging from 912 to 907. The preliminary Grading Plan is acceptable with modification. A detailed grading, drainage, erosion, and sediment control plan should be prepared in accordance with current City standards and .codes prior to final planned development approval. All erosion/sediment control plans submitted for development and grading permits should be prepared by a designer who has received current Minnesota Department of Transportation (MNDOT) training, or approved equal training as determined by the City Engineer in designing stormwater pollution prevention plans. Also, all personnel responsible for the construction and management of erosion/ sediment control devices, and the establishment of vegetation for the development, should have received Erosion/Sediment Control site management certification through the University of Minnesota, or approved equal training as determined by the City Engineer. Erosion control measures should be installed and maintained in accordance with City code and engineering standards. Planning Report — The Gardner School July 26, 2016 Page 5 The Grading Plan shows the construction of a retaining wall within the drainage and utility easement along the northeast edge of the site. That easement covers a storm sewer and a deep sanitary sewer line, and a retaining wall will limit access for maintenance of those facilities. No retaining walls should be allowed in the drainage and utility easement along the entire east property line. Wetlands — Because there are no wetlands on site, City Code § 11.67, wetland protection and management regulations, does not apply. Stormwater Management/Water Quality — The developer proposes to fully -reconstruct the impervious surfaces totaling approximately 44,575 square feet (1.02 acres) and an additional 30,056 square feet (0.69 acres) of disturbed/graded soils, on the 1.71 -acre site. This redevelopment will need to comply with the City's Post Construction Stormwater Management Requirements (City Code §4.34) for stormwater management and surface water quality, including Runoff Rate Control and 1.1" Volume Control (including Soil Management Strategies to restore permeability to disturbed soils that are to be revegetated). To meet the 1.1" Volume Control requirement for this application, based on 44,575 square feet of new/fully-reconstructed impervious, 4,086 cubic feet of retention (e.g. infiltration basin(s)) would need to be provided. The developer proposes to meet City Rate Control requirements (no net increase over pre - development conditions) with two infiltration basins and a sub -surface perforated pipe gallery. Volume Control requirements are proposed to be met through the creation of two infiltration basins with pre-treatment practices at each basin (grass filter strip at surface inlet at west basin and 4' depth sump with skimmer hood at piped inlet to east basin) for treating impervious surfaces. For the Soil Management Strategy (for Volume Control requirements of revegetated soils (sod, landscape, etc.) the developer proposes to loosen soils (rip/till) to a 12 -inch depth and incorporate 3 -inches of MnDOT 3890 Grade 2 Compost to restore permeability in the top 12 - inches of soil. According to the developer's submittal for meeting stormwater volume control requirements the proposed infiltration basins would provide 4,157 cubic feet of retention. No geotechnical evaluation was provided with the submittal to determine infiltration capability of sub -soils beneath each proposed basin. Eagan Water Resources staff has reviewed the developer's plans and stormwater management/design summary and finds the proposed plans, to meet City Code §4.34 Post - Construction Stormwater Management Requirements, are acceptable with conditions to ensure effective impervious area capture, pre-treatment effectiveness, infiltration capacity and capability verification, effective soil remediation to restore soil permeability (on all disturbed soils that are to be revegetated), effective infiltration basin and sub -surface pipe gallery construction techniques/staging/oversight, and future inspection and maintenance needs are performed for continued function. Storm Water Drainage — The preliminary Storm Drainage Plan is acceptable. The entire site lies within Drainage District D (as designated in the City Storm Water Management Plan — 2007), and generally flows north toward City Pond DP -5 located north of Yankee Doodle Road. Storm water runoff from the development will drain via an on-site storm sewer system to two rain Planning Report — The Gardner School July 26, 2016 Page 6 gardens/infiltration basins, and ultimately connect to the existing public storm sewer located in the northeast corner of the site. Utilities — The preliminary Utility Plan is acceptable. Trunk water main of sufficient size and capacity is available along the south side of Town Centre Drive. Installation of the new service will require open cutting the sidewalk, boulevard, and street. The developer should restore the sidewalk, street, curb and gutter, and boulevard damaged during installation of the new water service, and abandonment of the old service, in a manner acceptable to the City Engineer. The existing water and sanitary sewer services that serve the existing building on the site are proposed to be abandoned and replaced with new services. Abandonment of the water and sanitary sewer services should be performed according to city standards. This development should provide hydrant spacing and locations in accordance with City Fire Department and Public Works standards. Trunk sanitary sewer of sufficient size, depth, and capacity is available along the east side of the site for connection by this property. Sanitary sewer District N (as designated in the City's Comprehensive Sanitary Sewer Plan) serves the entire site. Streets/Access/Pedestrian Circulation — Town Centre Drive, located along the south edge of the site, is a 44 -foot wide undivided two lane roadway with shoulders and a sidewalk in both the north and south boulevards. The proposed development shows construction of a parking lot with two driveway access's onto Town Centre Drive, and a private sidewalk connecting to the existing public sidewalk. Easements/Permits/Right-of-Way — The existing public sidewalk located in the north Town Centre Drive boulevard is partially located out of the right-of-way. A 15 foot wide sidewalk easement (Document No. 692806) was dedicated in 1985 to accommodate the sidewalk. The existing entrance monument is proposed to remain. The developer should enter into an encroachment agreement for the existing entrance monument that is located in a drainage and utility easement, in a form acceptable to the City Attorney. This development should be responsible for the acquisition of all regulatory agency permits required by the affected agency prior to building permit approval. Landscaping/Screening — The Landscape Plan appears acceptable with modification. The plan shows a variety of 43 overstory deciduous trees located along the north and west perimeter of the property as well as within the parking lot islands. Shrubs and perennials are identified adjacent to the front of the building, around the perimeter of the playground, at the base of the monument sign and provide screening of the trash enclosure. The Landscape Plan should be revised to specify the type and quantity of each plant species. The plan should also include screening of the transformer equipment. Additionally, wherever a surface parking area faces a street frontage, such frontage should be screened with a decorative Planning Report — The Gardner School July 26, 2016 Page 7 wall, railing, hedge, or a combination of these elements, to a minimum height of 2 Meet above the level of the parking lot, at the build -to line. Automatic irrigation should be provided for all landscaped areas. A financial guarantee for installation of the landscaping should be provided in accordance with the City's Landscape Ordinance, at the time of Building Permit. Building Elevations/Architecture — The building is primarily comprised of brick and glass (Class I) and manufactured stone (Class II) materials, along with a Class III material, (Hardieplank siding and boards, an engineered cementitious lap siding). As previously mentioned, a portico is designed at the building entrance. The glass windows break up each facade as is Code requirement for any fagade exceeding 40 ft and each fagade appears to be treated equally. The ordinance requirements pertaining to CSC zoning requires at least two Class I materials shall be utilized, comprising at least 65% of the building, and up to 35% of the building may be comprised of Class III or IV materials. The proposal meets the requirements. Mechanical Equipment — City Code requires a minimum 30" parapet or screen wall for new buildings, and that rooftop mechanical units be placed at least 20' from the edge of the building. Additionally, a physical screen should be used in combination with the parapet wall if the mechanical equipment cannot be fully screened by a parapet design, as is the case with the proposed design. The parapet rises at the end caps of the building which makes the rooftop units in the middle of the building partially viewable. Further, the setback from the building edge is not met. The developer should provide screen wall details and the wall should made of materials that match other architectural features of the building. A ground mounted electrical transformer is located west of the eastern driveway. As previously mentioned, the Landscape Plan should be revised to provide landscaping on all four sides of the transformer. Trash/Recycling Enclosure — City Code requires that trash be stored indoors or within an enclosure attached to the building in commercial developments. In addition, the enclosure must be large enough to enclose both trash and recyclable materials containers. Trash storage is proposed to be within an enclosure attached to the southeast corner of the building. The trash enclosure should be constructed of brick to match the building, with an opaque gate that is compatible with the building finish materials. Building Address Numbers — Building address numbers should be installed consistent with the provisions of Section 2.78 of City Code. Planning Report — The Gardner School July 26, 2016 Page 8 Lighting — The City Code states "Site lighting is required as is necessary for security, safety and traffic circulation. Such illumination shall be indirect and diffused or shielded. Lighting shall not be directed upon public rights-of-way or adjacent properties and the source of light shall not be visible from off the property." The Site Lighting Plan proposes 4 single and 1 double mounted LED light fixture poles. The photometric plan should overlay the Site Plan and be revised so that the parking lot and drive aisle lighting achieves a minimum of 0.5 footcandles. Also, the revised plan should include an overall average to minimum ratio to ensure that site lighting is uniform. Signage — City Code allows one monument sign and up to three total building signs on two building elevations. The developer proposes to update the existing monument sign and provide two building signs on the south and east elevations. Specific sign plans were not provided; therefore, the signs should meet City Code requirements. Further, the sign base should be constructed to match the principal building materials. The existing monument sign is located within an existing drainage and utility easement. As previously mentioned, an encroachment agreement is necessary for the sign to remain. If the sign is relocated, it must meet setback requirements of 10 ft from any dividing line, including the easement. Financial Obligation — At this time, there are no pending assessments on the parcels proposed for platting. Based upon a study by City staff of the financial obligations collected in the past and proposed use for the property, there are no outstanding charges to be collected at time of final planned development or connection to the City's utility system. Tree Preservation — There are no tree preservation issues associated with this development proposal. Parks and Recreation — The planned development has previously fulfilled the parks dedication requirement. SUMMARY/CONCLUSION The Gardner School is requesting approval of a Preliminary Planned Development to allow an approximately 16,200 sf single -story childcare facility upon the property at 1195 Town Centre Drive. The Eagan Heights Commercial Park Planned Development established the site as CSC zoning; however, the site was approved for an emission testing facility and most recently a retail/office/warehouse building specifically to allow the operation of an elevator or lift sales and service company. The proposed childcare facility appears to be compatible with the mix of uses in the area. There are no deviations to City Code standards associated with this proposal. Planning Report— The Gardner School July 26, 2016 Page 9 ACTION TO BE CONSIDERED To recommend approval of a Preliminary Planned Development to allow the development of an approximately 16,200 s.f. single -story childcare facility upon property located at 1195 Town Centre Drive. Approval of the Preliminary Planned Development simultaneously constitutes the Final Planned Development for the property. If approved the following conditions shall apply: 1. A Final Planned Development Agreement shall be executed and recorded with the Dakota County Recorder's office. The following exhibits shall be required for the Agreement: • Final Site Plan • Final Building Elevations • Final Landscape Plan • Final Site Lighting Plan 2. The building shall meet City Code standards for exterior materials to be verified at the time of Building Permit application. 3. Rooftop mechanical units shall be screened by a physical screen if the parapet wall and setback placement are not suffice. 4. A detailed grading, drainage, erosion, and sediment control plan shall be prepared in accordance with current City standards and codes prior to Building Permit approval. 5. All erosion/sediment control plans submitted for development and grading permits shall be prepared by a designer who has received current Minnesota Department of Transportation (MNDOT) training, or approved equal training as determined by the City Engineer in designing stormwater pollution prevention plans. 6. All personnel responsible for the construction and management of erosion/sediment control devices, and the establishment of vegetation for the development, shall have received Erosion/Sediment Control site management certification through the University of Minnesota, or approved equal training as determined by the City Engineer. Erosion control measures shall be installed and maintained in accordance with City code and engineering standards. 8. No retaining walls shall be allowed in the drainage and utility easement along the entire east property line. Planning Report — The Gardner School July 26, 2016 Paize 10 9. The developer shall meet the City's Post Construction Stormwater Management Requirements (City Code §4.34) for stormwater management and surface water quality, including Runoff Rate Control and 1.1" Volume Control on the site's new and fully - reconstructed impervious surface area (including effective soil remediation to ensure soil permeability for the site's disturbed soils that are to be revegetated). 10. The developer shall provide adequately sized and planned pre-treatment (e.g. sediment filter structure, etc.) at, or immediately upstream of, all stormwater management facilities (e.g. infiltration basin) inlets to provide for effective capture and easily -accessible cleanout of coarse particles, fine -sand sized particles and floatable pollutants. Details shall be included in applicable plan sheet(s) 11. Prior to receiving City approval to permit land disturbing activity, the developer shall provide the City with soil boring logs from each proposed infiltration/filtration area, extending a minimum of 10' below the bottom of the proposed infiltration/filtration feature, to evaluate and ensure suitability for infiltration. If the soil boring logs indicate incompatibility of existing sub -soil permeability with the submitted and reviewed design plans for meeting volume control requirements, the developer shall revise the design and/or construction plans (e.g. over-excavation/soil-amendment depth, etc.), and if justified and permitted by the City shall follow the sequencing order in the Permissible Alternative Stormwater Volume Control Designs, to ensure volume control requirements are fully met. 12. Prior to receiving city approval to permit land disturbing activity, the developer shall provide construction details of the proposed infiltration systems for City review/acceptance by the City Engineer and include in construction plans. Construction details shall include infiltration basin cross-section(s), individual practice drainage area/sizing/volume tables, maximum depth of 1.5 -feet (not including below -grade soil media depth), details and elevations for stable inlets/outlets/emergency overflows, public storm sewer connection details (e.g. coring only, etc.), soil media criteria, live planting and seeding details, temporary & permanent erosion -control protection details (e.g. rows of sediment protection at the top and base of side slope, erosion -control blanket, etc.), construction sequencing/protection/restoration notes (e.g. no equipment within basin, etc.) and other details and notes to ensure infiltration practices are properly designed, constructed, planted, and adequately protected during / after construction to prevent clogging, and will be able to be properly maintained to function as intended. These graphical details and notes shall be prominently included in all applicable plan sheets (e.g. Grading Plan, Utility Plan, etc.). All infiltration basins shall include live -plantings with a minimum of 18 -inch on -center plant spacing. Planning Report — The Gardner School July 26, 2016 Paize 11 13. Prior to receiving city approval to permit land disturbing activity, the developer owner shall provide detailed Soil Management Strategies for City review, and acceptance by the City Engineer, that provide clear assurances that by final grading, prior to installation of any irrigation and plantings, the disturbed areas that are to be revegetated will have protected and/or restored soil permeability to non -compacted soil conditions in the top 12" of soil with no less than 5% soil organic matter content and less than 200 psi of soil compaction in the top 12" of topsoil, to comply with Volume Control requirements. These graphical details and notes on soil protection/restoration shall be included in the Stormwater Management Plan and prominently included in all applicable plan sheets (e.g. Erosion & Sediment Control Plan, Grading & Drainage Plan, Landscape Plan, etc.). 14. Prior to proceeding with land disturbing activity, the developer shall enter into a long- term stormwater management system maintenance agreement with the City, detailing the annual inspection and maintenance required to occur to ensure proper operation and performance of the permanent stormwater management system on each parcel, in a form acceptable to the City Attorney. 15. Before the City returns any Stormwater-related Performance Guarantee Fees on the development site , Soil Management Strategy implementation documentation (e.g. representative on-site soil samples, compaction testing and soil organic content test results) shall be provided to City Water Resources staff to verify approved soil management strategy compliance. 16. During infiltration/filtration system area over-excavation/sub-soil work, the developer shall provide verifying documentation that practice area sub -soils are suitable for a saturated condition infiltration rate of 0.9 -inch per hour or greater (but less than 8.0 -inch per hour). If the sub -soil infiltration rates are less than 0.9 -inch per hour (or greater than 8.0 -inch per hour), the developer shall immediately notify the City Engineer. Documentation shall be provided to the City within 48 -hours after infiltration testing. The developer shall provide the City Water Resources staff with 24-hour advance notice of the occurrence of infiltration verifications and also prior to any excavation and/or soil backfilling within the infiltration practices (City Water Resources staff contact/instructions shall be clearly/prominently listed on appropriate plan sheets). 17. Before the City returns any Stormwater-related Performance Guarantee Fees on the development site, the developer shall provide the City Engineer as -built plans that demonstrate that all constructed stormwater conveyance structures, stormwater management facilities (e.g. infiltration practices) and soil management strategies conform to design and/or construction plans, as approved by the City. As -built volumes (for retention) shall be provided for the infiltration practices. The developer shall submit to the City Engineer certification that the stormwater management facilities have been installed in accord with the plans and specifications approved. This certification shall be provided by a Professional Engineer or Landscape Architect licensed in the State of Minnesota. Planning Report — The Gardner School July 26, 2016 Paize 12 18. The developer shall restore the sidewalk, street, curb and gutter, and boulevard damaged during installation of the new water service, and abandonment of the old service, in a manner acceptable to the City Engineer. 19. Abandonment of the water and sanitary sewer services shall be performed according to City standards. 20. The developer shall provide hydrant spacing and locations in accordance with City Fire Department and Public Works standards. 21. The developer shall submit a proposal/infrastructure plan to be approved by staff to provide telecommunications fiber to the premises (FTTP). This development shall include the installation of fiber optic cable, or a conduit for future installation, in its construction plans at the time of Building Permit. 22. All public and private streets, drainage systems, and utilities necessary to provide service to this development shall be designed and certified by a registered professional engineer in accordance with City adopted codes, engineering standards, guidelines, and policies. 23. The developer shall be responsible for the acquisition of all regulatory agency permits required by the affected agency prior to Building Permit approval. 24. The developer shall enter into an encroachment agreement for the existing entrance monument that is located in a drainage and utility easement, in a form acceptable to the City Attorney. 25. Automatic irrigation shall be provided for all landscaped areas. A financial guarantee for installation of the landscaping shall be provided in accordance with the City's landscape ordinance, at the time of Building Permit. 26. The Landscape Plan shall be revised to specify the type and quantity of each plant, provide screening of the transformer equipment and to enhance the screening of the parking lot per City Code. 27. The Photometric Plan shall overlay the Site Plan and be revised so that the parking lot and drive aisle lighting achieves a minimum of 0.5 footcandles and shall include an overall average to minimum ratio to ensure that site lighting is uniform. 28. The trash enclosure shall be constructed of brick to match the building, with an opaque gate that is compatible with the building finish materials. 29. Building address numbers shall be installed consistent with the provisions of Section 2.78 of City Code. Planning Report — The Gardner School July 26, 2016 Page 13 30. The monument sign base shall be constructed of a masonry material to match the brick on the principal building. 31. The playground area shall be enclosed with decorative metal fencing and the Architectural Plan shall be revised to identify the fence details. Bff&-p4j.b-gmF� VA. 4 IV R 3AV AHMNM as E m � > o 03 p a 'a�Y - LL o m a) _ o V U iai�K C N O �.,` s LO ($ i N N C OIl V P °g UDO U 'O Y m O CCS 4� ❑Q i �, O *� tm G.� JLO Z O U) Bff&-p4j.b-gmF� VA. 4 IV R 3AV AHMNM a� LL 0 0 LO 0 0 T C C 0 .� N O N = � N U O C C O N O C �O N co N N .0 O O CL @ Q E N N N 9 C E a _O 0 d Q C. p co L CD o M i � O L- 0- P R z 0 v N Z (D s a� p^ (D M L W (9 a � U ALTA/NSPS Land Title Survey P.H. DAKOTA COUNTY, MNd SOTA BnD ADDRESS OF SURVEYED PREMISES: 1195 Town Centre Drive F _S EIEVATION DATUM e: (aa aux) Eagan, MN 55122 ," �wwp BBL+. (PLR rvAx) GRAPHIC SCALE � sa ,: % , Ism aux) An The American Till. A ca Company, Commitment N. N - i J9 - (v L] -- IINCH=DO FELT I�'n°'m"m'"'--- ^"'^"m`^m � IS TI 6w NV, R/x:B D(PCA� ) Pe'.m.�wae.mnwwn i'ren'n'®' mmme,v.,wuu 1 ::•l: l: r:•� R•W (.D,.... --- NORTH _. ,.•5=+ s=F.3s": 7x9. NADeJ.(1986 Aa)) uiae-is% BENCHMRRH MNOOT C POINT: ANKEE MNOJ] N99°46"42"7" 7.74_ _ _ _Q? - _ �.--x//=esB_• _ _ - - - - - Z. 3 x55- - - -w LEBENR DENOTES IRON FWND > >�" -po> p,O,, p - Eer.e. w,ud Mmz.t 1\ " e� 1��9 5 MONUMENT As LABELED DENOTES IRON MMOMENT .T, MARRED RLS{ 45156 0 DENOTES HENNEPN CWNTY SECTION CORNER ) waea gP,ne-,av M •�- xm sD1 1e DENOTESEINEH MANHOLE ENOST.B. RES ® TES - MA..- 1 _ la, T1 �,• q w 9Dx D0 NOTES ENOTES HYDRRANT 6w dl +x « \ ® r 1; 1 '• IS DENOTES GAS. METER w DENOTES POWER POLE '.' _ wlv® MURK�::iw 1 1 ( ) m.�.d1 ° 1 w , -., - >n 1 > ; aoe Wp 'o ..• 11 E f•1' ram V111r 'IDs" 1 . i EIEVA 5.0 NON �- DENODENOTES SIGN 9 DGENOiEs UtNT POLE EMOTES CABLE PEDESTAL 1 1 11 �� CAL BO% m DENOTES BY "' ••• 1 X01 $) 1 4 DENDTES `ACT LAND (NOT DEUNEATED) } \ { I 11 ''s 'M 1 0 DENOTES SOL BORNG (BY OTHERS) I`G°n :T 6uA• D.T2xe "(� 1 ®DENOTES RETNN NG WALL - DENOTES E%ISNNO CONTOURS I,ve,a { d '�p^a �✓%' ' 1 1-•snn 1 _ - -WS >-DENOS E -NG SANITARY SEYED 11 mos t --' 1 n -O1OS111 WATER MAN ,•,`,- Y 1 I 1°m •• T.. \ 1 - DENOTES G -HEAD .1E -.EMOTES UNDERGROUND ELECIRC UNE UNDERGROUND F"• �1)wvn �" _ __ - y� oex�mw. m {� .m ud 1 s; ^'•"" �1 -cu-DENOTES UNDERGROUND GAS LINE a-TENOIES UNDERGROUND CABLE UNE \{ • s'2 g ~ 11 3 �Yf�""x p� L DENOTES UNDERGROUND RGER OPTIC UNE ~� - ID NG SETBACK UNE 1Ev� •au.r v {I `. DENOTES GILT FENCE DENDTEs ONCRETE SURFACE ODENOlES BINM NOUS SUNFACE CERTIFICATION Cuny T. EEE 11, LLC De awom limped I Db9Ry compT - American TRI. msumnce mpp 1\ Lrt BM BT el9c xT T.3 1 g �/' If ° DTON B I AOU ,k\ vYy fes' 1 rW ontl .EPR Pm Ge ..a A4'.g Deve.pmcuE . Tb - ­b a bd UbtCly CGmp.mI Thco is o ce 11 11.1 Ins I ntl Ines er L r y map ar pia o 1 GAq IH ,TAH. it ,. bosetl w matle In ReNSPS. nta for ALb Lana e an In IM1e 2016 M'nimub SAd IL $ Sarva M MSPS, ontl of It— 6, pmily ¢slab sM1etl a otlopietl 51 ALTA Items ,, 2, 3 by , e t ^� � +,69B SD R. BUILDING 1], 16, ova 19 mi Tub1 A IM1 f Th 3 B.17. TTY ! d x.ek sus c on March 31st 2016 a ereo, e 1^� r{� m D.G, / Iam petetl 11 �'S1 6 1 m R, GION Mun D.N _�5 n e N 45356 sI� ON 3 ---- (r so•zssse-- °4 4rrs'-'- - 1533 DESCRIPTION OF SURVEYED PREMISES - •-Rus t ` TOWN I a CENTRE DRIVE r BT:.: per U. American elle Insurance C.mp.ny, Commitment NG=_ s]T9954_GH 2. DammV. eAt D.le: FCity zs, 20C.6 --tit ]:3g.k Mo - Lne .1111 preMBes is eRu.letl in lne City . E.g1 n, Covnty .I D 1ODU NINTH ADD TIOrv,iA .-1. C. -W Crfnnesma. low to 1, Blask 1, TOWN CENEPE C. -W, ----------- J.---- --------------- SITE PHOTOS DAKOTA COUNTY, MNd SOTA ue oc Dndlli.. note ned or .cider -Ing the sz of Ihisµrvey.Notlalotemenlslspmade co e.1,q the existence o undergroundor ov he cuss EIEVATION DATUM ' ly9y F" 'yz`^ ,y y "� - - CONTOUR INTERVAL I FT MINOR 5 IT, TIAJOR NTOURS RASED ON GRWNO SURUEY L€ The American Till. A ca Company, Commitment N. N - i J9 - Accarding to the American DRO Insurance company, OP-H.enl No. NCS-T]ag5a- ORIENTATION Commiimenl�0"' Febru.rpy 25, 2016 al 7,30 AA.U. -Fee p mteresl n -W1 I. Accers U(Is Inc, . mnes.l. ear oration. BEkel. Cc ARy BASEOsUp" _. ,.•5=+ s=F.3s": 7x9. NADeJ.(1986 Aa)) sanitary cleanout BENCHMRRH MNOOT C POINT: ANKEE MNOJ] Item 5-9, Are nal surveyrel-d. Item 10, 'WI,I ton oscontolnetl In the --1, Deetl dated Jonuory 18, 1991, recartled Feb.ory 5, 1991, os Document No. 973042. (NAV EIEVATIW (NAVD86) = 9]6.9] DAKOTA CWNtt COOROINAIES (NA08J (ig66)) E:55O60].468 VICINITY MAP PART OF SEC. Y.T. T. 27, RTW. 23 .eat,'... •--.mu -.- � T. N side of building - r_ 2. Address .f Lh.. YY,Ad premise. 1195 Tarn Centre CH. Eagan MN 55122 PID NO 3102624430015 rveyetl Premise rwy mop.N in Flood Zone % (accord ng to the Cly of Eag.n's Plonnn ontl Zoning w by g) A of 029, o.nuo chance of 6.oa, are s of iR ..nub chance o1 hood w,IN a m -0eept Ss a 1 n o w'tM1 atlra nag. sa Mnn 1 s an B.I.a p Dl d y vee 1— % num cn nee o .d s a p,o Ny 1s in Pees Nem nee Pup 'fmanly Panm,No. 27037COU65E by iM1e Fed Emergency Management Agency Agency (Sala map p-1 IT o ool Panted' sa It 1 - Id not be Nexetl). rwyors nate .sal on NA PRM the ora. c Nu '1 b --.Aly el tle TT, d/mapped bsu Boundary ores of Me surveyed pr .Ises' 74.667± sq 11 (1.71 acres) 6(.iA) A zoning report/etler w of prowtlea. with the cUN. Zoning Mop f om GHb City of Eo9.nszb- a or ment sh.«s Incl prio ,ty oa be ngr Tb -D PD -Pi.. NJ Development 'map date October 16. 2p14). d-ICityy Cade -tion 11.6 -Use Sis NII IS ontl a'eaayb, S.bd. le lbverb­­­. oy Ob . elated to o.ned ereo enl 0i.tH.l. A- see ecl.n G. There are ib marked or TiAd parking o eaz andira (IS regular, 1 h ,H..p d). 11. Ulilllies snow. hereon ore observed Erc.v.tlons were 1 mode during the .ces gl PHI, to locate underground UIHIIIes and/or .-Dr- The locml.- .1 underground plBitless and/or slmcuryly ures var may y Iron locations shnand adaitio l underground utilities and/.r structures may be d Contact GopherSiote a0ne Call Notific.U.n Center al (651) 454-0002 for ver TR ..n .1 u1911y Aypeand fold IocaUon, p or to excawllon. The Gopher Stale One Coll Utility -,b was nollfetl In the process .f Hill survey Nckel 8160841512. Tho follDwng uBilly Co.P bl, were nollfetl and the status as of 3/31/2016 T.: NO Nw= TO The led .-by xosW..pl don 3/31/2016 and N',, unmown whether .11 bbn Uilly companies responaea by Not date 16.No Db - a uwon, r ng h.. nee. ..teed, IN ver Ine tats 1. ins nDrlM1 ontl to the wast a dander construClla. Sb of iM1e grading done .n porcethe .do.c pore. H. the wast of Ule suA-1-po ce encroached upon thb -I- W-1. See Ile. A n .Ie Ba Encroachments ,]. Th cilyof E.g.n Engineer ng Deportment w onlacled regortl ng propoaea chongas n street right o wayl nes ontl they M1.ve Intl Calef Inot mere are n0 known c a .1 1- lime 16. As of 3/31/2016, H.- ... no --Ad av dente that ao-1-d de neat(.. hos bean -d -1 - NOTES DAKOTA COUNTY, MNd SOTA ue oc Dndlli.. note ned or .cider -Ing the sz of Ihisµrvey.Notlalotemenlslspmade co e.1,q the existence o undergroundor ov he cuss (NoSCALE) aer. locfllies Mol may allecl Ine or development of the --d pre Ises. onlmw No slalemenl is m.tle whether int. site meals the American Olcobllily Acl Requiremenla for TITLE COMMITMENT NO. NCS-719954-CH12SCHEDULE B -SECTION TWO EXCEPTIONS cessibllily. The American Till. A ca Company, Commitment N. N - i J9 - Accarding to the American DRO Insurance company, OP-H.enl No. NCS-T]ag5a- SpnTx. Exemptions: . SB ecll Commitment pate: Febmary 25, 2016 at 7:30 AMchedule Commiimenl�0"' Febru.rpy 25, 2016 al 7,30 AA.U. -Fee p mteresl n -W1 I. Accers U(Is Inc, . mnes.l. ear oration. Items I, Is nDl survey reloletl. Item 2, Please dee notes and encro.cnm U, secllons .1 this surrey. G- .hats were loran at th. top bock of curb SW ­d pre Ises Fos direct access 1. Town Centre Drive, . public street. possible Item 4. It's unk.... it here ore any easement. or claims of easements nal shown by public retard Ple.sesee possible ---Ib section of Ihls su y Item 5-9, Are nal surveyrel-d. Item 10, 'WI,I ton oscontolnetl In the --1, Deetl dated Jonuory 18, 1991, recartled Feb.ory 5, 1991, os Document No. 973042. OUI •Surveyor's Nate: W.monly Deed 4escrihes sub)ecl property. Item 11, Ore. B..n utllib. easements , sham on the recorded Dials of ioxn Centre 100 First Atltlllion ontl Town C Db IOD Nit- Addillon. •Surveyor's Nate: dThd easement areas M1ave been shown M1ere.n. It...12_,4, Ara n.t..rvb,m IUd. Em G. RUD & SONS INC. 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'r 1 : .... y : ASL LED SERIES Cat.# 22.4" Job 1.5" Type ARENSITUROAD LIGHTER 438 mm 569 mm 675 mm SPECIFICATIONS 78 mm 109 mm Construction: Controls: • Stylish vertically finned die-cast and extruded • 0-1 OV dimming standard photocell, occupancy aluminum for maximum heat dissipation sensor and wireless available for complete 5.9" on/off and dimming control • Separate optical and electrical compart- 7.4" ment for improved thermal management and • 7 -pin ANSI C136.41-2013 photocontrol optimum component operation receptacle option available for twist lock 91 mm photocontrols or wireless control modules • EPA: 8L- .SM2 (control accessories sold separately) 16L - .62 ft2 24L -.74 ft2 • Dimming leads can be pulled for use with remote control devices, order as special Optics: • Premium engineered individual Installation: acrylic lenses deliver IES Type Il, III, IV and V • Tool -less entry to wiring/driver compartment distributions • Universal mounting block works with #2 drill • Lens distributions are field rotatable (in 90° pattern (See page 4 Illustration) increments) or exchangeable for job site fine-tuning • Fixture ships with slotted mounting block to accomodates wide range of drill patterns foi • 3000K, 4000K, or 5000K (70 CRI) CCT easy retrofit opportunities (See page 4 illustration for dimensions) • Zero uptight • Mast arm fitter accessory or option available Electrical: for 2-3/8" OD brackets • Configured with 8, 16, or 24 high current and high output LEDs to replace 150, 250 and 400w Finish: HID respectively • TGIC thermoset polyester powder paint finish applied at nominal 2.5 mil thickness • Universal 120-277 VAC input voltage, 50/60 Hz Warranty: Five year limited warranty (for more infor- • Single driver, 2100mA drive current mation visit: htto://www.hubbelloutdoor.com/ resources/warranty/ • Ambient operating temperature -40'C to 40° C Listings: • Drivers have greater than 90% power • DesignLights Consortium (DLC) qualified, factor and less than 20% THD consult DLC website for more details: htto://www.designliQhts.ora/QPL • LED drivers have output power over - voltage, over -current protection and short • Listed to UL1598 and CSA C22.2#250.0 - circuit protection with auto recovery 24 for wet locations and 40'C ambient temperatures • Field replaceable surge protection device provides 1OKA and 19KV protection meeting • 3G rated for ANSI C136.31 high vibration ANSI/IEEE C62.41.2 Category C High and applications Surge Location Category 33; Automatically takes fixture off-line for protection when device • IP65 optical assembly is consumed • IDA approved CERTIFICATIONS/LISTINGS sus .. ORDERING INFORMATION - STOCK CONFIGURATIONS ° HUBBELL Outdoor Lighting PRODUCTIMAGE(S ASL -24L ASL -16L ASL -8L DIMENSIONS I .1o 'HI NN= '- 1 B I; N 11.7" 17.25" 22.4" 26.6" 1.5" 3.1" 4.3" 297 mm 438 mm 569 mm 675 mm 38 mm 78 mm 109 mm H I J K L M 5.9" 3.6" 2.5" 7.4" 2.3" 6.7" 150 mm 91 mm 63 mm 188 mm 58 mm 170 mm SHIPPING INFORMATION CONFIGURABLE ORDERING INFORMATION NEXT PAGE ® Hubbell Outdoor Lighting • 701 Millennium Boulevard • Greenville, SC 29607 • Phone: 864-678-1000 Outdoor Lighting H B E LL Due to our continued efforts to improve our products, product specifications are subject to change without notice. Outdoor 0 2016 HUBBELL OUTDOOR LIGHTING, All Rights Reserved • For more information visit our website: www.bobbelloutdoor.com • Printed In USA ASLLE6-SPEC 6116 20.75 (52.7) Canon Di dri 10, 15.125 (38.4) 6.9375 (17.6) ASL -8L 15(6.8) ASL -161. 19(8.6) 25 (63.5) 15.125 (38.4) 6.9375 (17.6) ASL -24L 24(10:8) 25 (63.5) 1 15.125 (38.4) 6.9375 (17.6) CONFIGURABLE ORDERING INFORMATION NEXT PAGE ® Hubbell Outdoor Lighting • 701 Millennium Boulevard • Greenville, SC 29607 • Phone: 864-678-1000 Outdoor Lighting H B E LL Due to our continued efforts to improve our products, product specifications are subject to change without notice. Outdoor 0 2016 HUBBELL OUTDOOR LIGHTING, All Rights Reserved • For more information visit our website: www.bobbelloutdoor.com • Printed In USA ASLLE6-SPEC 6116 ORDERING INFORMATION ORDERING EXAMPLE: ASL -A -241 -4K -210 -4 -1.1 -DB i r r• i i ii ►• r• i ASL ASL A Arm 8L 8 High 3K 3000K, 70 CRI 2 IES TYPE II U Universal BL Black F Fusing (voltage Series MAF Mast Arm brightness 4K 4000K, 70 CRI 210 21 OOmA 1 120 DB Dark Bronze specified and de - Fitter LEDs 3 IES TYPE III termined by voltage 16L 16 High 5K 5000K, 70 CRI 2 208 GR Gray field) brightness 4 IES TYPE IV 3 240 PS Platinum Silver 7PR2 7 -pin ANSI twist -lock LEDs 5 4 277 photocell receptacle 1ESTYPEV WH White 24L 24 High CCt Custom Color IRPAM Round pole adapter brightness (Replace X with 3, 4, LEDs 5 or 6 indicating pole RATA-XX1 diameter) SCP -REMOTE $CPW Programmable 1- Contact factory for minimum order quantities motion sensor with 2— 7 -pin ANSI C136.41-2013 receptacle for dimming control use with standard Twist -Lock® photo controls, shorting caps, and (line voltage device ANSI C136.41 external wireless not for use with control devices with and without 7PR receptacle motion/occupancy override option and external ASL8L3LENS wireless control ASL8L4LENS devices); A minimum ASLBL5LENS of one SCP -REMOTE 1 accessory remote ASL16L control required for 2 configuration; Wide ASL24L Ions with motion de- 3 tection radius equal to 1.3 X luminaire mounting height (approx. distance) TB Terminal block ACCESSORIES- order separately Catalog Number ASL -MAF Descrip tion Mast arm kit with wildlife shield for mountin on 23/8" OD arms ASL-ARMMTG-XX1 Arm mounting kit for side of pole attachment RATA-XX1 Single round arm tenon fits 2 3/8" OD, requires ASL -MAF accessory kit for stocked configurations SCP -REMOTE Remote control for SCPW option. Order at least one per project to program and control CL1S-RPA * -ACC-XX1 Round Pole Adapter * denotes pole diameter; 3 = 3'/a" -3 3/a"; 4 = 3 7/8" - 6" WB-CR-XX1 Wall bracket. Re uires universal mounting block option. PTL -1 Photocontrol - twist -lock cell 120 - Requires 7PR option PTL -8 Photocontrol - twist -lock cell 120-27 - Requires 7PR option PSC Shorting ca - twist -lock - Requires 7PR option ASLBL2LENS Type II, 2 lenses included ASL8L3LENS Type III, 2 lenses included ASL8L4LENS Type IV, 2 lenses included ASLBL5LENS Type V, 2 lenses included 1 - Replace XX with color choice, eg.: DB for Dark Bronze ASL -MAF installed ASL -MAF - Fits 2-3/8" OD arms �. ASL -MAF ASL -MAF INSTALLED RATA CR-RPA(X) WB -CR -XX Wall Mount Accessory WB -CR -XX __.._. designed to applications ® Hubbell Outdoor Lighting • 701 Millennium Boulevard • Greenville, SC 29607 • Phone: 864-678-1000 HUBBELL HUBBELL Due to our continued efforts to improve our products, product specifications are subject to change without notice. wvv� Outdoor Lighting ©2016 HUBBELL OUTDOOR LIGHTING, All Rights Reserved •For more information visit our website: www:hubbelloutdoor.com Printed in USA ASLLED-SPEC 6/16 .: Q0' ASL8L2LENS ASL8L3LENS ASL8L4LENS ASL8L5LENS ' rr r• r r• r ASL8L 1 2 ASL16L 2 4 ASL24L 3 6 Wall Mount Accessory WB -CR -XX __.._. designed to applications ® Hubbell Outdoor Lighting • 701 Millennium Boulevard • Greenville, SC 29607 • Phone: 864-678-1000 HUBBELL HUBBELL Due to our continued efforts to improve our products, product specifications are subject to change without notice. wvv� Outdoor Lighting ©2016 HUBBELL OUTDOOR LIGHTING, All Rights Reserved •For more information visit our website: www:hubbelloutdoor.com Printed in USA ASLLED-SPEC 6/16 PERFORMANCE DATA I - Lumen values are from photometric tests performed In accordance with IESNA LM -79-08. Data Is considered to be representative of the configurations shown. Actual performance may differ as a result of end-user environment and application. ELECTRICAL DATA LUMINAIREAMBIENT TEMPERATURE FACTOR (LATE) PROJECTED LUMEN MAINTENANCE 1113FRATING HOIIF r r rrr •r r rrr -r rrr rr rrr rr 25°C/77°F 1.00 0.93 0.90 0.86 0.75 >125,000 40°C / 104°F 0.99 0.900.86 0.81 0.67 >88,000 1. Projected per IESNATM-21-11 C Cree XP -L, 2100mA,105°C Ts, 6,000hrs) EPA r ASL8L .50 1 @ 90° ASL16L .62 ASL24L .74 r r AWL .88 3@120* ASL16L .99 ASL24L 1.11 0` C 32`F 1.06 10° C 50° F 1.03 20° C 68° F 1.01 25'C 77°F 1.00 30° C 86'F 0.99 40'C 104° F 0.97 50° C 122° F 0.94 Use these factors to determine relative lumen output for average ambient temperatures from 0-40°C (32-104°F). r r ASL8L 1.00 2@180' ASL16L 1.24 ASL24L 1.48 ASL8L 1.42 4@90' ASL16L 1.66 ASL24L 1.90 ® Hubbell Outdoor Lighting • 701 Millennium Boulevard • Greenville, SC 29607 • Phone: 864-678-1000 HUBBELL HUBBELL Outdoor Lighting Due to our continued efforts to improve our products, product specifications are subject to change without notice. 0 2016 HUBBELL OUTDOOR LIGHTING, All Rights Reserved • For more information visit our website: www.hubbelloutdoDr.com • Printed in USA ASLLED-SPEC 6/16 PHOTOMETRICS For additional photometric information and IES downloads, visit our web site at www.hubbelloutdoor.com ASL -8L-51 ARM/MOUNTING BLOCK Fixture ships with universal mounting block for ease of installation. Compatible with #2 drill pattern. —r— 1/2" dia hole ASL -161 ® Hubbell Outdoor Lighting • 701 Millennium Boulevard • Greenville, SC 29607 • Phone: 864-678-1000 5�u,' BABE d HUBBELL Outdoor Lighting Due to our continued efforts to Improve our products, product specifications are subject to change without notice. 0 2016 HUBBELL OUTDOOR LIGHTING, All Rights Reserved • For more Information visit our website: www.hubbelloutdoor.com • Printed In USA ASLLE6-SPEC 6116 Ej w i ii R I, 0 i�I., r y,�''� EZl99 NW'Ntl'Jtl3 O BAN.3i11N3�NMO1 Stitl �� 2 Ell 100HOS 213N021VO 3H1 .sem Q NoIsIA3a uaam�w go iNg Qg 2n �s e E - `s � �3g sEo6o @ 0 ��� T< R �R`2 F?8s A✓� Ell g // 11 PfA fWf $ W L O Rol Wgm g�g wQG o e r W tl"�^� o R R cod n ��13 bol g€ 9� < B� €� W R= W 1 a 8 � �5 aa �d d H d j _ a 580 � 0000 : m ------------ ---- i v a 12 Nipl a ! ] N_� t a m _ IIIY�a b a m m \ m � _ s r \ zh \ / / r / F/4' nx � ��• \ 11 / a \\ ... \ • / / � I // 11 PfA fWf _ � \ e r m t a : m ------------ ---- m \ m � _ m : a 1/4' fiA FOOT \ - / F/4' nx � ��• / a m m m m = m m a , r ° i m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m m n T T m �.NOOL•.� a/€3! aE _moi E o t, 31 Wole '^ �'�d Q �reIfll fZl99 NCD W'NtlOtl3 ~ w V! G+Oea. ®3AIi10381N30 NM01581L h p`�dHY'"� e � 3� E dd®• = �� IOOH3S'dDNCMV03Hl Noisin3a �� 9 -1 0 0 A' mei mei moi �o� 111®i■►e � ,� ®li 3 �� X111®i■►e a p �i�: ®® I --g I ���;®I■ ® ® 3. ® � I moi■ 1� ON II— — ®oi' --3- El : s�iF�•F ' • �IiC�ll� 0 ti�Ol)t �i ft Et g Q +^I�1�+ CZtSS NW'NtlOV3 w W O j;�� 3AItl03tl1N30 NM015611 ! IOOHOS aON 3NVO 9H1 Z3. NOISIA3N L ooc ENi 3A]HO 38'IZN3� NM.1 96t I ®Sy' - .1 100HOS FJDNCIUVE) 3Hi NOISIAFIa EI: to '17 o w, Ld RN hp INDM.9-.6 11 z otl F3 co El. v z O uj ....... . . ......... Lu c� Lu co Nn Z< zs .. . .................................................... . . .... ............. . . .... a g,. -i H T ------------- ..... . ......... .. . 41. — ---------- — ---------- — - ---------------- c) 080 o Up, 1z o 48 igb i z RE U- .... .. ....... .. .. t bb. ---- ------------- CO .... . ....... zS L N l99 NW'NtlOV3 , zj: WOice: i�� 3AIilO 3tl1N3O NMOL 96" Z§ . d s' •' IOOHOS'd3NCIWE) 3Hl — Q 3HY•W�. s` FFr � Noisin3a To: Sarah Thomas -- City Planner City of Eagan From: Jay Joiner The Gardner School Trisha Sieh, P.E. Kimley-Horn Date: June 1511, 2016 Subject: Proposed Planned Development for The Gardner School 1195 Town Centre Drive, Eagan, MN IM 2550 University Avenue W. Suite 238N St, Paul, MN 55114 The Gardner School seeks to build a first-class daycare and early childhood education facility to benefit the City of Eagan and surrounding community residents. The Gardner School provides academically focused early childhood education for ages 6 weeks to 5 years. The goal of The Gardner School is to create a rich learning environment to stimulate each child's physical, social, emotional, and intellectual growth. The Gardner School (TGS) offers an academically oriented research based curriculum, which provides a comprehensive [earning environment, even for our youngest students. Research suggests that the richer a child's environment, the more neural connections the brain creates. TLS's DLM Early Childhood -Express is designed to match instruction with the latest research regarding how children learn and develop. Secondly, all lead teachers and administration within each school are required to have four-year degrees in Early Childhood Education, or a closely related field. Additionally, TLS's extracurricular "Enrichment Program" offers in-house, semi -private lessons including instruction in foreign language, music and drama, sports readiness, dance and ballet, gymnastics and Be Smart Kids computer instruction. To further differentiate TGS as an academically -focused private preschool, students who are three years and older are required to wear uniforms. Each facility is equipped with a full scale cafeteria and a dedicated Chef that prepares health conscience, nutritionally - balanced meals. TGS also utilizes the PreciousStatus app, which provides "real-time" communication and updates to parents regarding each child's day. The exterior door and the door from the lobby to the classrooms both require keypad access. The facility will have a capacity of 205 children in 14 classrooms with a staff of approximately 35. Hours of operation will be 6:30 am -- 6:30 pm. Child drop-off and pick-up primarily occur daily between 7:00 a.m. and 9:00 a.m. and 4:00 p.m. and 6:00 p.m. With this naturally staggered drop-off and pickup window, there is never a surge in traffic as parents travel to and from work at various times. The Gardner School proposes to redevelop the former Access Lifts site at 1195 Town Centre Drive, with a complete demolition and new building construction. What currently is an older building and deteriorating site, is proposed to feature a new building comprised of high-quality materials such as stone and brick, increased greenspace and landscaping, and upgraded storm water treatment facilities. The proposed project consists of a 16,200 SF daycare building, with associated parking, playground area, stormwater infliltration areas, and site appurtenances. The current zoning of the Site is Planned Development. A continuation of the Planned Development zoning is Ki i, n! e.4 VnS;), H or n requested with this proposal. The Site and Architectural design meet the City of Pagan General Provisions and Performance Standards, thus no deviations are requested. The surrounding properties consist of mixed use office and retail properties. The Site is currently designated for Office/Service land use and falls within the 2030 Central Commons Special Area Plan. The proposed daycare center will help contribute to the Central Commons Special Area vision through the incorporation of a clean, active, and walkable redevelopment. Construction is scheduled to start in the fall of 2016, with a grand opening in the fall of 2017 to begin the new school year. Should you have any questions or comments, please do not hesitate to contact me at (651) 643-0470, or by email at trisha.sieh@kimley-horn.com Sincerely, Trisha Sieh, P.P. Kimley»> hlarn June 30, 2016 Sarah Thomas City of Eagan - Planner 3830 Pilot Knob Road Eagan, MN 55122 RE: Preliminary Planned Development — Gardner School Ms. Thomas, Kimley-Horn received the Preliminary Planned Development review comments for the incomplete submittal via email on June 23, 2016 (as well as a copy via US Mail) for the proposed development located at 1195 Town Centre Drive in Eagan, MN. All of the Review Findings from the Report have been copied below and Kimley-Horn offers the corresponding responses in red. Please review and let me know if there are any questions in regards to the responses offered. Upon review by City staff, it was determined that the application is incomplete. The City cannot proceed with review until the application submittals are complete. The following item(s) are required for your application request: • Certified Mailing List Certified bailing list and labels are provided with this re -submittal. • Original signatures on Application and Escrow Deposit Agreement Application and Deposit Agreement with original signatures are provided with this re -submittal. • Clarify status of Company name as City Attorney's office has verified it does not exist/not registered in State of MN The Gardner School is currently registering with the State of Minnesota Department of Revenue. • The Preliminary Planned Development will be processed with the Final Planned Development to expedite the process. A Final PD application fee of $350 is required. No additional escrow is needed. Final PD application fee is provided with this re -submittal. rumley>Mornrage 2 In addition, please address the following issues: 1. Easements a. Remove all trees from D/U easement on east side of property Trees removed from easement. See sheet L1.O. b. Setbacks should be based from the edge of the 15' trail easement along the south side of the site, not the property line. According to our title search, there is no trail easement, therefore comment not applicable. Please let us know if you have record of a trail easement on this property. c. Remove entrance monument from D/U easement. If it remains, an Encroachment Agreement will be required (verify if you propose to reface or replace/relocate) The new monument sign hos been removed; the existing monument will be re -used and refaced. See sheet C3.O. d. D/U easement along south property line can be reduced from 15'to 10' (if no private utilities are in it). Trail easement can be reduced to 2' beyond the edge of the existing trail. Easement vacation would need to be performed. May want to vacate all easements and re -dedicate. /t appears there is a communication line utility within the southern easement, therefore reduction is not applicable. As per 1b above, we cannot find record of a trail easement. As such, easement vacation/adjustments are not proposed. 2. Utilities a. Water Main L Abandon the existing water service to city standards Note added to sheet C2.0 to existing water service. b. Storm sewer I. Show direction of flow on pipes See sheet C4.O for updated pipe directions. 3. Storm Water a. Rate Control L Should be based on not to exceed "pre -development condition" (vs. existing condition). Stormwater report and calculations have been updated to account for pre -development 72NNHIM17; ii. Ordinance 4.34 "pre -development" definition: means land conditions prior to creation of any impervious surface on the property. Comment acknowledged. Report and calculations have been modified accordingly. Kimley>Marn Page 3 iii. Recalculate in Hydrocad and update tables (and revise rate control practices as needed to achieve no net increase over pre -development). Comment acknowledged. Report and calculations have been modified accordingly to have post - development rates achieving no not increase over pre -development rates. b. Volume Control: L Pretreatment for Infiltration Basins: 1. Rock inlet (at West Basin) is not appropriate pre-treatment for infiltration basin (not maintainable). Substitute with sediment filtration practice. See sheet C4.1— A grass filter strip will be utilized for pre-treatment. 2. Sump (for East Basin) should be 4 -foot minimum sump depth, with skimmer hood on outlet pipe. See sheet C4.0 — Structure S-8 is noted to have a 4'sump, and the outlet pipe to the pond ii. Infiltration Basins: 1. Swale with 3" of topsoil is not an infiltration basin - utilize appropriate soil media/depth in both basins (in addition to 2 -foot minimum/2-foot spacing sub -soil ripping with soil media incorporation into sub -soil); See sheet C4.1 for addition of sub soil ripping note to the rain garden infiltration basin and the updated note for soiljmedia depth within the infiltration basin. 2. Bottom of the basins should be flat. Comment acknowledged. Sheet C4.0 shows updated grading for flat basins. 3. Basin bottoms should be live planted (max. of 2 -foot on -center planting) with appropriate plant species. See sheet L1.0 for updated plantings within basins. 4. Sump pipe outlet into West Infiltration Basin should be stabilized to protect from scour/erosion. Assuming this comment was intended for the East Infiltration Basin, see sheet C4.1 detail for pipe outlet stabilization. Skimmer structure with rip rap will be installed at the outlet. c. There will also need to be some minor note edits, such as: L Add Water Resources Staff contact info for scheduling inspections at Infiltration Basin over - excavation and during Soil Management Strategy" implementation: contact Water Resources Specialist at 651-675-5335 or gthompson@cityofeagan.com This note has been added to sheets C4.0 and C4.1 1'r 11 Fumley>Morn Page 4 4. Building Elevations — Provide material percentages per class per elevation See updated architectural elevations. 5. Lighting specifications — Fixture type, height, avg/min ratios (0 min). Would be helpful to provide footcandles on Site Plan. See photometric sheet and specifications. 6. Signage — Provide clarification on placement, add plantings around sign base and sign details. If details are unknown, sign will be subject to standard City Code requirements. The existing sign will be re-claded and re faced. See updated architectural plans and sheet L1.0 for planting updates. 7. Landscaping — Add foundation plantings to building. See sheet L1.0 for planting updates. Please contact me at (651) 643-0470 or Trisha.Sieh@kimley-horn.com should you have any questions or comments. Sincerely, Trish Sieh, PE Agenda Information Memo August 1, 2016, Eagan City Council Meeting NEW BUSINESS B. Conditional Use Permit — Dart Advantage Warehousing (2841 Beverly Lane LLC) Action To Be Considered: To approve (or direct preparation of Findings of Fact for Denial) a Conditional Use Permit to allow outdoor storage of semi -trucks and trailers upon property located at 2841 Beverly Drive, subject to the conditions listed in the APC minutes. Required Vote For Approval: ➢ Majority of Councilmembers present Facts: ➢ The property is zoned 1-1, Limited Industrial, in which outdoor storage is a conditional use. ➢ The property contains a recently constructed 140,000 s.f. warehouse building. ➢ The CUP is requested for Dart Advantage Warehousing, which will occupy the building. Portions of the building will also be leased to other tenants. ➢ The outdoor storage is proposed along the southeast edge of the property. ➢ Conditions of approval call for a revised site lighting plan to provide additional lighting in the area of outdoor storage. ➢ The proposal satisfies the performance standards in the City Code with the exception of an enclosure, which may not be necessary. ➢ The Advisory Planning Commission held a public hearing on the proposal at their July 26, 2016 meeting, and did recommend approval. Issues: ➢ None 60 -Day Agency Action Deadline: August 14, 2016 Attachments: (4) NBB-1 Location Map NBB-2 Draft July 26, 2016, APC Meeting Minutes NBB-3 Planning Report NBB-4 Report Exhibits ■ � § CD % R> tm fCD �ƒ � � �o Com_ (9 o 4�d a �Q \ - - - , 0 2 2 3 ) o \ 2°� 2 . glop \ Advisory Planning Conunission July 26, 2016 Page 7 of 9 B. Dart Advantage Warehousing Applicant Name: Gary Santoorjian, 2841 Beverly Lane LLC Location: 2841 Beverly Drive; Lot 1, Block 1, Atlas 2nd Addition Application: Conditional Use Permit A Conditional Use Permit to allow outdoor storage of semi -tractors and trailers. File Number: 02 -CU -10-06-16 Planner Dudziak introduced this item and highlighted the information presented in the City Staff report dated July 20, 2016. Member Sagstetter asked if a condition should be added stating the outdoor storage shall cease or be reduced if the proof of parking area is utilized. Planner Dudziak responded the Commission may choose to add such a condition. The applicant, Gary Santoorjian, on behalf of Dart Advantage Warehousing (DAW) and 2841 Beverly Lane LLC, stated the bulk warehouse parking needs are typically very low, and the outdoor storage will increase and decrease as needed with tenants' parking needs. Mr. Santoorjian further stated agreement with the conditions in the staff report. He added his appreciation to the City for assistance in completing the construction and necessary inspections to get a timely occupancy permit allowing DAW to move into the building. Chair Filipi opened the public hearing. There being no public comment, Chair Filipi closed the public hearing and turned the discussion back to the Commission. Member Piper moved, Member Heckman seconded a motion to recommend approval of a Conditional Use Permit to allow outdoor storage of semi -trailers and tractors, subject to the following conditions: 1. This Conditional Use Permit shall be recorded with the Dakota County Recorder's office; within 60 days of approval by the City Council, with the following exhibits: Site Plan dated March 2, 2096 2. The owner shall submit a revised Site Lighting Plan with additional lighting of the outdoor storage area to achieve an average of 0.5 footcandles. 3. The outdoor storage area shall be paved with bituminous asphalt or concrete before any outdoor storage may occur. All voted in favor. Motion carried 6-0. PLANNING REPORT CITY OF EAGAN REPORT DATE: July 20, 2016 APPLICANT: 2841 Beverly Lane LLC CASE: 02 -CU -10-06-16 HEARING DATE: July 26, 2016 PROPERTY OWNER: 2841 Beverly Lane LLC APPLICATION DATE: June 15, 2016 REQUEST: Conditional Use Pernut LOCATION: 2841 Beverly Drive PREPARED BY: Pam Dudziak COMPREHENSIVE PLAN: IND, Limited Industrial ZONING: I-1, Limited Industrial SUMMARY OF REQUEST The applicant is requesting approval of a Conditional Use Permit to allow outdoor storage of semi -trailers and tractors on property located at 2841 Beverly Drive, legally described as Lot 1, Block 1, Atlas 2nd Addition. AUTHORITY FOR REVIEW City Code Chapter 11, Section 11.50, Subdivisions 4C and 4D provide the following. Subdivision 4C states that the Planning Commission shall recommend a conditional use permit and the Council shall issue such conditional use permits only if it finds that such use at the proposed location: Will not be detrimental to or endanger the public health, safety, or general welfare of the neighborhood or the City. 2. Will be harmonious with the general and applicable specific objectives of the Comprehensive Plan and City Code provisions. 3. Will be designed, constructed, operated and maintained so as to be compatible in appearance with the existing or intended character of the general vicinity and will not change the essential character of that area, nor substantially diminish or impair property values within the neighborhood. Planning Report — 2841 Beverly Lane LLC July 26, 2016 Page 2 4. Will be served adequately by essential public facilities and services, including streets, police and fine protection, drainage structures, refuse disposal, water and sewer systems and schools. 5. Will not involve uses, activities, processes, materials, equipment and conditions of operation that will be hazardous or detrimental to any persons, property or the general welfare because of excessive production of traffic, noise, smoke, fumes, glare or odors. 6. Will have vehicular ingress and egress to the property which does not create traffic congestion or interfere with traffic on surrounding public streets. 7. Will not result in the destruction, loss or damage of a natural, scenic or historic feature of major importance. 8. Is appropriate after considering whether the property is in compliance with the City Code. Subdivision 41), Conditions, states that in reviewing applications of conditional use permits, the Planning Commission and the Council may attach whatever reasonable conditions they deem necessary to mitigate anticipated adverse impacts associated with these uses, to protect the value of other property within the district, and to achieve the goals and objectives of the Comprehensive Plan. In all cases in which conditional uses are granted, the Council shall require such evidence and guarantees as it may deem necessary as proof that the conditions stipulated in connection therewith are being and will be complied with. BACKGROUND/HISTORY The property was platted in 2008. Earlier this year, a Building Permit was issued for the construction of a 140,000 s.£ warehouse on the property. Construction of the building and development of the site is nearly complete. EXISTING CONDITIONS The site is currently under construction to build a warehouse, parking lot, install water and sanitary sewer services, and extend a public street across the northeast side of the property to the east property line. These improvements are being performed under a separate Building Permit. Standard drainage and utility easements are located around the entire lot and over the ponding area at the north end of the parcel. The southwest edge of the site is bordered by railroad tracks owned by Canadian Pacific Railway. The parcel drains to the northeast with elevations ranging from 872' to 846'. A sanitary sewer lift station is located along the southeast edge of the site. P1araiing Report — 2841 Beverly Lane LLC July 26, 2016 Pave 3 SURROUNDING USES The site has industrial uses to the north, west, and south. Across Hwy. 55 to the east are office and commercial uses. EVALUATION OF REQUEST Description of Proposal — The applicant is proposing outdoor storage of 43 semi -trucks and trailers along the southeast side of the property. Due to the grades and the ponding at the front of the site, the building and storage area are setback substantially from the public street. Code Requirements — In addition to the requirements for a conditional use permit listed above, City Code Section 11.70, Subdivision 22, C, 2, lists performance standards for outdoor storage as follows: a. Outdoor storage items shall be placed within an enclosure as necessary to achieve appropriate security and containment or for public safety reasons when determined necessary by the city. In general business (GB) and community shopping center (CSC) zoning districts, the enclosure shall be attached to the principal building and be constructed of materials - which are aesthetically compatible with the principal building. In limited industrial (I--1) and general industrial (I--2) zoning districts, the enclosure may be detached from the principal building. An enclosure is not proposed and may not be necessary. b. The storage area shall be located in the side or rear yards and shall not encroach into any required front building setback area or other required setbacks. The proposed outdoor storage is located in the side yard and satisfies required setbacks. C. The outdoor storage area shall be screened fi°om view from the public right-of- way and from any adjacent property which is designated for residential uses in the comprehensive guide plan. Landscape screening is proposed between the pond and pavement southeast of the building, where the loading docks and outdoor storage are located. There are no adjacent properties designated for residential use. Planning Report — 2841 Beverly Lane LLC July 26, 2016 Page 4 d. The storage area shall not interfere with any pedestrian or vehicular movement. The proposed outdoor storage does not conflict with pedestrian or vehicular movement. e. The storage area shall not take up required parldng spaces or landscaping areas. The proposed outdoor storage area is also designated as proof of parking. The site plan provides for 71 parking stalls along the northwest side of the building, and additional proof of parking for 145 stalls. Required parking for a 141,000 s.f. warehouse is 150 stalls. If additional off-street parking is needed and the proof of parking areas required to be utilized, then the outdoor storage would need to cease or be reduced. f. The storage area shall be surfaced with concrete or an approved equivalent to control dust and erosion. The surface shall be properly maintained to prevent deterioration. The outdoor storage area is proposed to be surfaced with bituminous asphalt or concrete. The outdoor storage area shall be paved with bituminous asphalt or concrete before any outdoor storage may occur. Compatibility with Surrounding Area — The proposed use appears compatible with surrounding area, which is occupied with industrial uses similar to the subject site. Landscaping — A Landscape Plan was provided with the Building Permit application. The southeast side of the property is landscaped with a mix of deciduous and evergreen trees. A line of upright arbot vitae along the top of the retaining wall south east of the building, and some spruce trees off that southeast end of the retaining wall. These evergreen materials will provide screening of the loading dock and outdoor storage areas. Site Lighting — Site lighting is shown on the Landscape Plan. City Code requires site lighting to be provided as is necessary for security, safety and traffic circulation. Building mounted lighting is proposed on the two long sides of the building. No additional pole mounted lighting is proposed on the outer edges of the pavement over the proposed outdoor storage area. The applicant believes the wall -mounted lighting is adequate for security purposes. The City Code lacks an objective standard as to the amount of illumination necessary to achieve the necessary "security, safety and traffic circulation." Staff has typically applied a minunutn standard of 0.5 footcandles level is for off-street parking areas. As proposed, the 0.5 footcandle level extends approximately 50' out from the building, Planning Report — 2841 Beverly Lane LLC July 26, 2016 Pav-e 5 and covers the loading dock areas, but does not extend as far as the proposed outdoor storage area. Additional lighting of the outdoor storage area should be provided to achieve an average of 0.5 footcandles. Wetlands — Because there are no wetlands on site, City Code § 11.67, wetland protection and management regulations, does not apply. Stormwater Management/ Water Quality — Storm water requirements were previously satisfied with the original development of the site. Utilities — A private storm sewer system, and water and sewer services of sufficient size, depth, and capacity, are being installed along with the warehouse building currently under construction. Streets/Access/Circulation — Public street access will be via Beverly Drive, a city street in Mn/DOT right-of-way, which is currently under construction and being extended to the east property line. Two parking lot entrances are being constructed onto Beverly Drive. Parkin /S�ge Area — The area proposed for overnight parking of trailers is a bituminous asphalt parking lot surrounded by concrete curb and gutter, which is currently under construction. City Code requires parking lots to be surfaced with a material to control dust and drainage, and that the surface shall be properly maintained to prevent deterioration. Bituminous asphalt is the most -widely -used surfacing material to accomplish this requirement and is required for outdoor storage areas. Financial Obli ag tion — At this time, there are no pending assessments on the parcel. Parks and Recreation — Cash park and trail dedications were satisfied with the issuance of the building permit. SUMMARY/CONCLUSION The applicant is proposing outdoor storage of semi -trucks and trailers in a limited industrial zoning district. The building is under construction and nearly complete. The proposed outdoor storage appears to be consistent with surrounding uses and largely satisfies City Code performance standards with the exception of the enclosure, which may not be necessary. The conditions of approval call for a revised Site Lighting Plan to provide additional illumination of the outdoor storage area for security. ACTION TO BE CONSIDERED To recommend approval of a Conditional Use Permit to allow outdoor storage of semi -trailers and tractors on property located at 2841 Beverly Drive, legally described as Lot 1, Block 1, Atlas 2" d Addition. 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[fig U DSXW2 LED 3OC' 1000 40K'f4-M MVOLT OUTDOOR PHOTOMETRIC REPORT CATALOG: DSXW2 LED 30C 1000 40K T4M MVOLT TEST �' 22504P115 TEST LAB: SCALED PHOTOMETRY VAST NOTES: SCALED FROM ABSOLUTE TEST. 22604PO TEST DATE: 11/.5/2012 CATALOG: DSXW2 LEC? 30C 1000 40K T4M MVOLT DESCRIPTION: DSXW2 LECA WITH 3 LIGHT ENGINES, 30 LEA'S, 1000MA CD. 0 DRIVER, 4000K LED, TYPE 4 MEDIUM OPTIC SERIES: D -SERIES WALL SIZE 2 LAMP CATALOG: 1�ICHIA 2183 4000K LANIP: LED "AfIlP OUT TOTAL LUMINAIRE LUMENS: 11129.5, AB _%0LU"I E :aJ9DQ PHOTOME f Y BALLA5F / DPIVER:: LEDINTA35OC21tiDHO INPUT It h G'E-, 109 LUMINOUS OPENING: RECTANGLE (L:3", W: 11.04") MaxCd.. 7,796.3 AT HORIZONTAL: 351, VERTICAL: 701 ROADWAY CLASS: SHORT, TYPE IV Polar Candela Distribution 71800 1800 1700 IWIL 1500 $4fl � � 4 3 6150(0 13t1� �l�CdV yy ((qq d.�LF� •• .�Fi�VyyL{{� 21�lVU q qry d.:hS°4 i,3CiCE i6€i° CD. 0 go,, 5,341 Soo :aJ9DQ [ay��ii.Uryry��55 �)al L 7,800 ilf�s: 11'� 1C1° 209 300 4f3'^+ ." I�`lrd.50 H-' Max . -00H -goo Hi 4 1 0 1 3 4 Page 1 of 4 OFA ,°, r`= Isofootcandle Plot 1 a 1. 2 3 4 Y IN 20 Fc 1 fc 10 fc a U.> Fr. S fc: P (I.1 fc 2 50% May Cd Distance in units of mount height (20ft) - M - Max Cd *TEST BASED ON ABSOLUTE PHOTOMETRY IAACRE LAMP LUMENS=L€. M" - T TAL. *CUTOFF CLASSTFICATION A14D EFRCIEN Y GANkUT BE PROPERLY CALCULATED FOR ASSOLUTEE PHOTOMETRY. VISUAL PHOTOMETRIC: TOOL 1.2.47 COPYRIGHT 2016, AC:UrTY 3RANDS LIGHT-ING. THIS PHOTOMETRIC REPORT HAS BEEN GENERA D USING METHODS RECOMMENDED BY THE IESNA. CALCULATIONS ARE BASED ON PHOTOMETRIC DATA PROVIDED BY THE MANUFACTURER, AND THE ACCURACY OF THIS PHOTOMETRIC REPORT IS DEPENDENT ON THE ACCURACY OF THE DATA PROVIDED. END-USER ENVIRONMENT AND APDL ICATION (INCLUDING, BUT NOT LIM ED -ra, VOLTAGE VARIATION AND DIRT ACCUMULATION) CAN CAUSE ACTUAL PHOTOMETRIC PERFORMANCE 1_0 DIFFER FROM THE PERFORMANCE CALCULATED USING THE DATA PROVIDED BY THE MANUFACTURER. THIS REPORT IS PROVIDED WITHOUT WARRANTY AS TO ACCURACY, COMPLETENESS, RELIABILITY OR OTHERWISE. IN NO EVENT WILL ACUITY BRANDS LIGHTING BE RESPONSIEILE FOR ANY LOSS RESULTING FROM ANY USE OF THIS REPORT, 22604PI15 PUBLISH VISUAL PHOTOMETRIC TOOL. PAGE I OF 4 Iitt1)://www,visual-3d.c.om/idols/photometricN,ie er/ e- ault.aspx?i=103884 6/27/2016 AGENDA CITY OF EAGAN REGULAR MEETING OF THE ECONOMIC DEVELOPMENT AUTHORITY EAGAN MUNICIPAL CENTER August 1, 2016 A. CALL TO ORDER B. ADOPT AGENDA C. CONSENTAGENDA 1. APPROVE EDA Minutes 2. SCHEDULE PUBLIC HEARING for August 16, 2016 to consider sale and Purchase Agreement for Lot 1, Block 1, Cedar Grove Parkway 4th Addition D. OLD BUSINESS E. NEW BUSINESS OTHER BUSINESS G. ADJOURN Agenda Information Memo August 1, 2016 Eagan Economic Development Authority Meeting NOTICE OF CONCURRENT ACTIONS The Council acting as the Board of Commissioners of the Economic Development Authority (“EDA”) may discuss and act on the agenda items for the EDA in conjunction with its actions as a Council. A. CALL TO ORDER ACTION TO BE CONSIDERED: To convene a meeting of the Economic Development Authority to run concurrent with the City Council meeting. B. ADOPT AGENDA ACTION TO BE CONSIDERED: To adopt the Agenda as presented or modified. C. CONSENT AGENDA ACTION TO BE CONSIDERED: To approve the Consent Agenda as presented or modified. 1. APPROVE MINUTES EDAC1-1 Minutes of the July 19, 2016 EDA meeting. 2. SCHEDULE PUBLIC HEARING for August 16, 2016 to consider sale and Purchase Agreement for Lot 1, Block 1, Cedar Grove Parkway 4th Addition. ACTION TO BE CONSIDERED: To Schedule a Public Hearing on August 16, 2016 to consider sale and purchase agreement of Lot 1, Block 1, Cedar Grove Parkway 4th Addition in the Cedar Grove Redevelopment Area between the EDA and JR Hospitality II, LLC.  On May 17, 2016, The Morrissey Hospitality Group (MHG) informed City Staff the company is not able to proceed with the Home 2 Suites hotel project within the Cedar Grove Redevelopment Area and requested the EDA begin the repurchase process of the subject property. The City Attorney and MHG arranged the repurchase, and th e property was reacquired by the EDA on July 20, 2016.  On July 20, 2016, the Finance Committee recommended preparation of a purchase agreement for a new buyer (JR Hospitality II, LLC), under similar terms for consideration at a future meeting. The City Attorney and representatives of JR Hospitality have completed the purchase agreement for consideration and it is being made available at this time.  In order to formally consider the sale of publicly owned property for private use, the EDA must hold a public hearing in its regard. This action would set the public hearing for consideration of the sale on August 16, 2016. EDAC-2 Draft Purchase Agreement between the EDA and JR Hospitality II, LLC D. OLD BUSINESS There are no Old Business items at this time. E. NEW BUSINESS There are no New Business items at this time. F. OTHER BUSINESS There are no other items at this time. G. ADJOURNMENT ACTION TO BE CONSIDERED: To adjourn the EDA Meeting. MINUTES OF A MEETING OF THE EAGAN ECONOMIC DEVELOPMENT AUTHORITY Eagan, Minnesota July 19, 2016 A meeting of the Eagan Economic Development Authority was held on Tuesday, July 19, 2016 at the Eagan Municipal Center. Present were President Maguire, Commissioner Bakken, Commissioner Fields, Commissioner Hansen and Commissioner Tilley. Also present were Executive Director Osberg, City Attorney Dougherty, and Community Development Director Hutmacher. CALL TO ORDER President Maguire called the Economic Development Authority meeting to order. ADOPT AGENDA Commissioner Bakken moved, Commissioner Fields seconded a motion to approve the agenda as presented. Aye:5 Nay:0 CONSENT AGENDA Commissioner Bakken moved, Commissioner Fields seconded a motion to approve the Consent Agenda as presented. Aye: 5 Nay: 0 1. It was recommended to approve the minutes of July 5, 2016. 2. It was recommended to approve Grant Contract, Minnesota Investment Fund Loan Agreement and other related documents with Prime Therapeutics and authorize the President and Executive Director to execute the same. There was no Old Business. There was no New Business. There was no Other Business. OLD BUSINESS NEW BUSINESS OTHER BUSINESS ADJOURNMENT Commissioner Bakken moved, Commissioner Hansen seconded a motion to adjourn the meeting. Aye: 5 Nay: 0 Date David M. Osberg, Executive Director SALE AND PURCHASE AGREEMENT THIS SALE AND PURCHASE AGREEMENT (the "Agreement"), is made as of 2016 (the "Effective Date" of this Agreement) between the Eagan Economic Development Authority, a public body corporate and politic and a political subdivision of the State of Minnesota (the "Seller") and JR Hospitality 11, LLC, a Minnesota limited liability company, and its assigns (the "Buyer") In consideration of the mutual covenants and agreements hereinafter contained, the parties agree as follows: 1.) SALE AND PURCHASE OF REAL PROPERTY. Seller shall sell to Buyer, and Buyer shall purchase from Seller the following property (the "Real Property"): a parcel of undeveloped land located in the City of Eagan (the "City"), Dakota County, Minnesota, legally described as Lot 1, Block 1, Cedar Grove Parkway Ot' Addition. 2.) PURCHASE PRICE AND MANNER OF PAYMENT. The purchase price ("Purchase Price") to be paid by Buyer to Seller is as follows: (a) Real Property. The Purchase Price for the Real Property shall be Four Hundred Ninety-one Thousand Seven Hundred Six and No/100 Dollars ($491,706.00). (b) Ramp Contribution. Buyer shall provide a cash payment of Four- Hundred Eighty-nine Thousand Two Hundred Ninety-seven and No/100 Dollars ($489,297.00) as and for its contribution for a non-exclusive easement to use 129 stalls in the adjacent two-level parking garage in accordance with the Parking Ramp Easement and Operating Agreement, the form of which is attached hereto as Exhibit A. 3.) EARNEST MONEY, Twenty-five Thousand and No/100 Dollars ($25,000.00) as earnest money to be deposited with First American Title Company (hereinafter "Title Company") no later than three (3) business days after the Effective Date (the "Earnest Money"), to be held in escrow by the Title Company in accordance with the terms of Title Company's standard escrow agreement. The balance of the Purchase Price, plus or minus any prorations and other adjustments required hereunder, shall be paid in cash, wire transfer, or guaranteed funds on the Closing Date, - 4.) CONDITIONS TO BUYER'S OBLIGATIONS. The obligations of Buyer under this Agreement are conditioned upon satisfaction or waiver by Buyer of each of the following by the respective dates indicated: (a) Access. Seller shall allow Buyer and Buyer's agent's access to the Real Property without charge and at all reasonable tunes for the purpose of investigation and testing. Buyer shall pay all costs and expenses of such investigation and testing and shall indemnify, defend and hold Seller and the Real Property harmless from all costs and liabilities relating to Buyer's activities; provided that Buyer shall not be responsible for existing conditions on the Real Property nor the cost of investigations or studies completed by Seller before the Effective Date. Buyer shall 1 SALE AND PURCHASE AGREEMENT THIS SALE AND PURCHASE AGREEMENT (the “Agreement”), is made as of _________________, 2016 (the “Effective Date” of this Agreement) between the Eagan Economic Development Authority, a public body corporate and politic and a political subdivision of the State of Minnesota (the “Seller”) and JR Hospitality II, LLC, a Minnesota limited liability company, and its assigns (the “Buyer”). In consideration of the mutual covenants and agreements hereinafter contained, the parties agree as follows: 1.) SALE AND PURCHASE OF REAL PROPERTY. Seller shall sell to Buyer, and Buyer shall purchase from Seller the following property (the “Real Property”): a parcel of undeveloped land located in the City of Eagan (the “City”), Dakota County, Minnesota, legally described as Lot 1, Block 1, Cedar Grove Parkway 4th Addition. 2.) PURCHASE PRICE AND MANNER OF PAYMENT. The purchase price (“Purchase Price”) to be paid by Buyer to Seller is as follows: (a) Real Property. The Purchase Price for the Real Property shall be Four Hundred Ninety-one Thousand Seven Hundred Six and No/100 Dollars ($491,706.00). (b) Ramp Contribution. Buyer shall provide a cash payment of Four Hundred Eighty-nine Thousand Two Hundred Ninety-seven and No/100 Dollars ($489,297.00) as and for its contribution for a non-exclusive easement to use 129 stalls in the adjacent two-level parking garage in accordance with the Parking Ramp Easement and Operating Agreement, the form of which is attached hereto as Exhibit A. 3.) EARNEST MONEY. Twenty-five Thousand and No/100 Dollars ($25,000.00) as earnest money to be deposited with First American Title Company (hereinafter “Title Company”) no later than three (3) business days after the Effective Date (the “Earnest Money”), to be held in escrow by the Title Company in accordance with the terms of Title Company’s standard escrow agreement. The balance of the Purchase Price, plus or minus any prorations and other adjustments required hereunder, shall be paid in cash, wire transfer, or guaranteed funds on the Closing Date. 4.) CONDITIONS TO BUYER’S OBLIGATIONS. The obligations of Buyer under this Agreement are conditioned upon satisfaction or waiver by Buyer of each of the following by the respective dates indicated: Access. Seller shall allow Buyer and Buyer’s agent’s access to the Real Property without charge and at all reasonable times for the purpose of investigation and testing. Buyer shall pay all costs and expenses of such investigation and testing and shall indemnify, defend and hold Seller and the Real Property harmless from all costs and liabilities relating to Buyer’s activities; provided that Buyer shall not be responsible for existing conditions on the Real Property nor the cost of 2 investigations or studies completed by Seller before the Effective Date. Buyer shall further repair any material damage to the Real Property caused by or occurring as a result of Buyer’s testing. (a) Cooperation. Seller shall, without charge to Buyer, cooperate in Buyer’s attempts to obtain all governmental approvals and permits necessary in Buyer’s judgment in order to allow the lawful use of the Real Property for Buyer’s intended purposes. Nothing in this Agreement shall be deemed a waiver of the Eagan City Council’s right to exercise its legislative discretion to approve or reject any development proposal presented to the City by Buyer. (b) Documents. Within ten (10) days after the date of this Agreement, Seller shall deliver to Buyer true and correct copies of all of the Documents (as hereinafter defined) for Buyer’s examination and analysis. (d) Document Review. Buyer shall have determined in its sole discretion, that it is satisfied with its examination and analysis of all contracts, agreements, plans, warranties and all other documents in connection with the Real Property (together with any amendments thereto), including, without limitation, the following (all of which are collectively referred to herein as the “Documents”): (i) Tests. To the extent available, results of soil tests, percolation tests, structural engineering tests, masonry tests, water, oil, gas, mineral, asbestos, radon, formaldehyde, PCB or other environmental tests, inspection reports, surveys, market studies and core samples, if any, which relate to the Real Property or the business carried upon therein and which are either in Seller’s possession or control. (ii) Phase I ESA. Copies of any environmental reports, including any Phase I Environmental Site Assessments and/or Phase II Environmental Site Assessments, concerning all or part of the Real Property that are in Seller’s possession or control. (iii) Surveys and Maps. To the extent available, surveys, plats or other depictions relating to the Real Property and copies of all wetland analyses, planning studies, aerial photographs, topographical maps or studies, engineering studies and plans and mylars. (iv) Title Insurance Policies. All title insurance policies with exception documents related to the Real Property. (v) Contracts. All agreements, contracts, agreements or other instruments affecting all or any portion of the Real Property, if any, (collectively the “Contracts”), including, without limitation, all warranties and guaranties given to, assigned to, or benefiting Seller or the Real Property. (c) Governmental Approvals. Buyer shall have obtained, at its sole cost and expense, all governmental permits, approvals and licenses as Buyer deems necessary in its sole discretion for its intended development, construction and use of the Real Property. (d) Compliance with Laws. On or before the Inspection Deadline, Buyer shall have reasonably determined that the Real Property and Buyer’s intended use there of fully complies with all existing local, state, and federal regulations concerning the maintenance and operation of the Real Property, including zoning, building, health and safety, fire safety and environmental codes and laws and such use is and will be a legal conforming use. 3 (e) Title. Title shall have been found acceptable by Buyer in its sole discretion, or been made acceptable, in accordance with the requirements and terms of Section 6 below. (f) Financing. Buyer shall have obtained financing in the form of equity and construction financing for the purchase of the Real Property on terms satisfactory to Buyer in Buyer’s sole discretion. (g) Hotel Franchise. Buyer shall successfully procure approval of a hotel franchise agreement for the Real Property to operate a Hilton Home 2 hotel on terms satisfactory to Buyer in Buyer’s sole discretion. (i) Environmental Remediation. Seller shall have completed all environmental remediation on the Real Property that can reasonably be completed prior to any construction activity, provided that in any event Seller shall have obtained from the Minnesota Pollution Control Agency a “no association” letter expressly to or for the reliance of Buyer and sufficient in Buyer’s sole discretion for Buyer to be an “innocent purchase” and to be protected from being a “responsible party” under applicable federal, state and local environmental laws. If there are any delays in completing environmental remediation as specified by this Agreement through no fault of Buyer, Buyer and Seller shall work in good faith to extend the timelines established in this Agreement; provided that such extensions shall not hinder nor delay Buyer’s efforts to finance or lease the Project to prospective tenants. (j) Storm Water. The Real Property is presently served by an existing, permitted offsite storm water system along Minnesota State Highway 13 and Silver Bell Road, and such system complies with all applicable laws. Buyer shall have received confirmation from the City that such off-site storm water systems are adequate to serve the Real Property, has an efficient and properly placed access point on the Real Property and Buyer’s proposed development thereon, that it can utilize, without cost, other than typical annual maintenance costs, such system for the transport, storage and treatment of all storm water from the Proposed Project. (k) Representations and Warranties. The representations and warranties of Seller contained in this Agreement will be true now and on the Closing Date as if made on the Closing Date. (l) Utility Location. Buyer shall have confirmed that the location of the utilities coming into the Real Property is acceptable. (m) Government Fees. Buyer shall have confirmed the amount of all governmental fees in connection with the development of the Real Property is acceptable. If any condition set forth in this Section 4 has not been satisfied or waived by Buyer on or before October 28, 2016 (the “Inspection Deadline”), then Buyer may, at Buyer’s option, terminate this Agreement. Upon receipt of such notice from Buyer, Title Company shall promptly return the Earnest Money to Buyer. Upon such termination and return, neither Seller nor Buyer shall have any further rights or obligations under this Agreement except for the covenants set forth in the last paragraph of this Section 4 regarding liens arising out of Buyer’s activities on the Real Property (the “Surviving Covenant”). If Buyer has not terminated this Agreement on or before the Inspection Deadline, then Buyer shall be deemed to have waived the contingencies set forth herein. Notwithstanding anything to the contrary in this Agreement, in the event that this Agreement is terminated by Buyer for any reason under this Agreement other than as a remedy for a Seller default pursuant to Section 26 below, the Title Company shall not release the Earnest Money to Buyer until 4 Buyer delivers a written request therefor. If this Agreement is so terminated, Buyer shall not allow liens to be filed against the Real Property as a result of Buyer’s activities on the Real Property and, if any liens are filed, Buyer shall promptly cause them to be released. 5.) CONDITIONS TO SELLER’S OBLIGATIONS. The obligations of Seller under this Agreement are conditioned upon Buyer obtaining, at Buyer’s sole cost and expense, all regulatory approvals, provided that if Buyer is satisfied in its sole discretion with such approvals, Seller shall not have a right to terminate this Agreement pursuant to this Section 5. 6.) TITLE MATTERS. Title examination shall be conducted as follows: (a) Title Evidence. Within ten (10) business days after receipt of the Documents, the parties shall obtain the following title evidence (collectively, the “Title Evidence”): (i) Title Insurance Commitment. Buyer shall order a commitment (“Title Commitment”) from Title Company for an ALTA Form B 2006 Owner’s Policy of Title Insurance committing to insure a marketable title to the Real Property in Buyer; Buyer shall request that the Title Company delete so-called “standard exceptions” related to survey matters, parties in possession, and liens for labor, materials and services; including affirmative insurance regarding appurtenant easements, separate real estate tax parcel, in the amount of the Purchase Price, and issued by the Title Company. The cost of the Title Commitment shall be paid by the Seller. The Title Commitment shall include complete and accurate copies of all matters described in Schedule B thereof; and (ii) Survey. Seller shall provide, at Seller’s cost, a current survey of the Real Property, certified to Seller, Buyer, Title Company and Buyer’s lender, prepared in accordance with ALTA/ACSM standards and such other requirements as requested by Buyer or Buyer’s lender (the “Survey”). Seller shall deliver a copy of the survey to Buyer, and Buyer shall have five (5) days following receipt thereof, to either approve or disapprove of the composition of the Real Property as depicted therein. If the Buyer disapproves of the survey, the parties shall confer as to reconciling the issues with the survey. The cost of the Survey shall be paid by the Seller. (b) Buyer’s Objections. Within ten (10) days after receiving the last item of the Title Evidence (but no later than September 30, 2016), Buyer shall notify Seller of any objections (“Objections”) to matters disclosed in the Title Evidence. Buyer shall be deemed to have automatically made Objections to any mortgage, judgment, tax lien, mechanic’s lien and any other monetary lien against the Real Property (collectively “Monetary Liens”). With respect to any update to the Title Commitment and/or the Survey, Buyer shall have 10 days after Buyer’s receipt of the applicable updated Title Commitment and/or Survey to notify Seller of any Objections; provided that Buyer shall not have the right to object to any matters that were shown on a previous Title Commitment and/or Survey and not timely objected to by Buyer. Seller shall use reasonable efforts to correct any Objections which shall include, if applicable, payment of the Monetary Liens out of proceeds from Closing on the Closing Date if they are not satisfied prior thereto. At Closing, Buyer shall have the right to require endorsement(s) to the Title Policy. If the Objections are not cured prior to the Closing Date, Buyer will have the option to do any of the following by notice provided to Seller: 5 (i) Terminate. Terminate this Agreement pursuant to Section 4 herein, on or before the Closing Date. Upon receipt of such notice from Buyer, Title Company shall promptly return the Earnest Money to Buyer. Upon such return, neither Seller nor Buyer shall have any further rights or obligations under this Agreement, except for the Surviving Covenants; or (ii) Waive. Waive the Objections and close the transaction contemplated by this Agreement as if such Objections had not been made. (c) Title Policy. If the Closing occurs, Title Company shall issue an owner’s title insurance policy (“Title Policy”) pursuant to the Title Commitment, or a suitable markup of the Title Commitment initiated by the Title Company undertaking to issue such a Title Policy within a reasonable time in the form required by the Title Commitment as approved by Buyer. 7.) CLOSING PROCEDURES. (a) Closing Date. The closing of the purchase and sale contemplated by this Agreement (the “Closing”) shall occur on October 31, 2016 (the “Closing Date”). The Closing shall take place at 10:00 a.m. local time at the office of Title Company, or such other location as determined by the Seller. (b) Seller’s Closing Documents. On the Closing Date, Seller shall execute and/or deliver to Buyer the following (collectively, the “Seller’s Closing Documents”): (i) Deed. A Limited Warranty Deed (the “Deed”), in recordable form, conveying marketable title to the Real Property to Buyer, free and clear of all encumbrances, other than those encumbrances not objected to or waived pursuant to Section 6. The deed must incorporate a covenant running with the land as required by MINN. STAT. § 469.105; (ii) Title Policy. The Title Policy, or a suitably marked-up Title Commitment, as provided for in Section 6, herein; (iii) Seller’s Affidavit. An Affidavit by Seller indicating that on the Closing Date there are no outstanding, unsatisfied judgments, tax liens, or bankruptcies against or involving Seller or the Real Property; that there has been no skill, labor, or material furnished to the Real Property for which payment has not been made or for which mechanics’ liens could be filed; and there are no other unrecorded interests in the Real Property, together with whatever standard owner’s affidavit as may be required by the Title Company to issue the Title Policy; (iv) FIRPTA Affidavit. A nonforeign affidavit, properly executed and in recordable form, containing such information as is required by IRC Section 1445(b)(2) and its regulations; (v) Original Documents. Seller shall deliver to Buyer all original Documents (or suitable copies thereof) that may be necessary for Buyer to develop and operate the Real Property. Where necessary to comply with statutory record retention requirements, Seller may retain originals of records and provide copies to Buyer; and 6 (vi) Parking Ramp Easement and Operating Agreement. A Parking Ramp Easement and Operating Agreement substantially in the form as set forth on Exhibit A attached hereto; (vii) Repurchase Agreement. A repurchase agreement substantially in the form as set forth on Exhibit B; and (viii) Other Documents. All other documents reasonably determined by Buyer or the Title Company to be necessary to transfer the Real Property to Buyer. (c) Buyer’s Closing Documents. On the Closing Date, Buyer will execute and/or deliver to Seller the following (collectively, “Buyer’s Closing Documents”): (i) Purchase Price. The balance of the Purchase Price to be paid as required by Section 2; (ii) Parking Ramp Easement and Operating Agreement. A Parking Ramp Easement and Operating Agreement substantially in the form as set forth on Exhibit A attached hereto; (iii) Repurchase Agreement. A repurchase agreement substantially in the form as set forth on Exhibit B; and (iv) Title Documents. Such affidavits of Buyer or other documents as may be reasonably required by the Title Company in order to record Seller’s Closing Documents and issue the Title Policy. 8.) PRORATIONS. Seller and Buyer shall make the following prorations and allocations at the Closing: (a) Title Insurance and Closing Fee. Seller shall pay the cost of the Commitment and the Survey and Buyer shall pay the premium for the Title Policy and any endorsements obtained. Seller and Buyer will each pay one-half of any reasonable and customary closing fee or charge imposed by the Title Company or its designated closing agent. (b) Deed Tax. Seller shall pay all state deed tax due on the Deed to be delivered by Seller under this Agreement. (c) Real Estate Taxes and Special Assessments. Seller shall pay or cause to be paid all general real estate taxes, if any, payable for the Real Property in the years prior to the year in which the Closing occurs, and any deferred or Green Acres real estate taxes. Seller and Buyer shall prorate the general real estate taxes, if any, payable for the Real Property in the year of closing as of the Closing Date based upon the calendar year. Seller shall pay, on or before the Closing Date, all special assessments levied, “pending,” deferred or constituting a lien against the Real Property as of the Closing Date, including, without limitation, all installments of special assessments, including interest, payable in the year of Closing. Nothing in this subparagraph shall be deemed a waiver of the City’s ability to lawfully impose future special assessments on the Real Property as well as any assessments that may be agreed to by Buyer as part of the development of the Real Property. Buyer shall be responsible for any Metropolitan or City sewer and water charges associated specifically with the development of the Real Property, but Buyer 7 shall not be responsible for any sanitary area charges, water area charges or storm sewer area charges. (d) Recording Costs. Seller will pay the cost of recording all documents necessary to place record title in Seller in the condition warranted by Seller in this Agreement. Buyer will pay the cost of recording all other documents. (e) Attorneys’ Fees. Seller and Buyer shall each pay its own attorneys’ fees in connection with the preparation and negotiation of this Agreement and the Closing, except that a party defaulting under this Agreement or any of its respective Closing Documents shall pay the reasonable attorneys’ fees and court costs incurred by the nondefaulting party to enforce its rights regarding such default. (f) Event of Repurchase. In the event that Seller needs to exercise its right to repurchase the Property as allowed under the Repurchase Agreement, all prorations and closing costs shall be allocated in accordance with the provisions of this Section 8. This provision shall survive the Closing and the delivery of the deed. 9.) OPERATION PRIOR TO CLOSING. During the period from the Effective Date through the Closing Date (the “Executory Period”), Seller shall not execute any contracts, easements, leases, or other agreements or allow any new encumbrances to exist regarding the Real Property, nor perform any act that would impair or encumber the title to the Real Property or affect the condition of the Real Property. 10.) REPRESENTATIONS AND WARRANTIES BY SELLER. Seller represents and warrants to Buyer as follows, which representations and warranties shall be true and correct as of the Closing: (a) Organization; Authority. Seller has the requisite power and authority to execute and perform this Agreement and any Seller’s Closing Documents to be signed by it; such documents have been (or will be prior to Closing) duly authorized by all necessary action on the part of Seller and at the Closing shall have been duly executed and delivered; such execution, delivery, and performance by Seller of such documents does not conflict with or result in a violation of any judgment, order, or decree of any court or arbiter to which Seller is a party, or any agreement by which Seller is bound; and such documents are and shall be valid and binding obligations of Seller, enforceable in accordance with their terms. (b) Title to Real Property. Seller owns the Real Property and has good marketable title, free and clear of all encumbrances, except those encumbrances listed in the Title Commitment. (c) Mechanic’s Liens. All labor and materials which have been provided to the Real Property have been fully paid for or will be fully paid for, prior to the Closing Date. (d) Utilities. Gas, sanitary, and storm sewer and water lines are available to the Real Property. Seller has received no notice of actual or threatened reduction or curtailment of any utility service now supplied to the Real Property. (e) Rights of Others to Purchase Real Property. Seller has not entered into any other contracts, agreements or understandings, whether oral or written, for the sale of all or any portion of the Real Property, and there are no existing rights of first refusal or options to purchase all or any portion of the Real Property, or any other rights of others that might prevent the consummation of this Agreement. 8 (f) Compliance with Laws. The Real Property and the current use thereof fully complies with all existing local, state, and federal regulations concerning the maintenance and operation of the Real Property, including zoning, building, health and safety, fire safety, and environmental codes and laws and such use is a legal conforming use. No notice of violations of the same have been received. To the best of Seller’s knowledge, no other permits or licenses are required in order to use the Real Property as intended by Buyer, other than those required by the City acting in its legislative capacity. (g) Litigation and Other Matters. Seller has received no notice, and has no knowledge of any pending or threatened notice, of a violation of any statutes, ordinances, regulations, judicial decrees, or orders, or the pendency or threat of any lawsuits, administrative or arbitration hearings, governmental investigations, proceedings, applications, petitioners, or other matters affecting the Real Property or the use thereof. (h) Private Restrictions. There are no contracts, leases, private restrictions, or agreements with any public authority that will not appear in the Title Commitment and that will affect the present or future uses that may be made of the Real Property, including but not limited to size or cost of buildings or structures; limitation on use or restrictions in regard to fences, roofs, garages, and heights of buildings or structures, except for building and zoning codes; agreements to subject architectural plans to an association or other group; provisions requiring improvements; provisions requiring the joining of others in group actions; or restrictions imposed on the Real Property due to its historical significance. (i) Condemnation. Seller has not received any notice of any pending condemnation, eminent domain or other similar action, suit or proceeding that would affect the Real Property. To the best of Seller’s knowledge, after due inquiry, there are no such proceedings pending or threatened against the Real Property and there are no applications, ordinances, petitions, resolutions, or other matters pending before any governmental agency in regard to access routes, curb cuts, median strips, or other contemplated actions of public agencies that might tend to diminish or curtail the full flow of traffic proximate to the Real Property and access thereto. Seller has not received a notice of any pending or threatened condemnation, eminent domain or other similar action, suit or proceeding that would affect the Real Property. (j) Storage Tanks. There are no above-ground or underground tanks that are located in or about the Real Property. All tanks that have been removed have been removed and closed in compliance with all federal, state and local laws. (k) Wells and Septic. Seller knows of no wells on the Real Property. At the time of Closing, Seller will deliver any required well certificate pursuant to applicable laws. There is no “individual sewage treatment system” within the meaning of Minn. Stat. Section 115.55 on or serving the Real Property. Sewage generated at the Real Property goes to a facility permitted by the Minnesota Pollution Control Agency. (l) Assessments. Seller has not received any notice of any actual or proposed special assessments or reassessments of the Real Property. (m) Hazardous Substances. Except as set forth in the Phase I Survey dated August 2004 prepared by Braun Intertec, Phase I Survey updated September 2012 by Braun Intertec and Phase II Survey dated April 2006 prepared by Braun Intertec, there are no Hazardous Substances stored, deposited or located within the property or under the surface of the property. For purposes of this warranty and representation, the term “Hazardous Substances” means asbestos and asbestos- 9 containing materials, polychlorinated biphenyls, nuclear fuel or materials, chemical waste, radioactive materials, explosives, known carcinogens, petroleum products, or other dangerous, toxic, or hazardous pollutant, contaminant, chemical, material or substance defined as hazardous or as a pollutant or contaminant in, or the release or disposal of which is regulated by, any Environmental Laws. For purposes of this Agreement, the term “Environmental Laws” shall mean the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601-9657, as amended, and any other federal, state and local laws, rules and regulations dealing with Hazardous Substances, the environment or public health. (n) FIRPTA. Seller is not a “foreign person,” “foreign partnership,” “foreign trust” or “foreign estate,” as those terms are defined in Section 1445 of the Internal Revenue Code. (o) Airport Zoning Ordinance. For the purposes of satisfying any applicable requirements of Minn. Stat. § 360.065, a copy of any airport zoning regulations affecting the Real Property can be reviewed or obtained at the Office of the Dakota County Recorder. Except for the warranties, covenants and representations explicitly set forth in this Agreement, Seller and Buyer agree that Buyer will accept possession of the Real Property in its AS-IS condition, WITH ALL FAULTS, and the sale of the Real Property to Buyer shall be without any other representation, covenant or warranty of any kind, express or implied, and Buyer, for Buyer, Buyer’s agents, attorneys, representatives, heirs and assigns does hereby disclaim and renounce any other representation or warranty. Seller will indemnify Buyer and its successors and assigns against, and will hold Buyer and its successors and assigns harmless from, any expenses or damages, including reasonable attorneys’ fees that Buyer incurs because of the breach of any of the above representations and warranties, whether such breach is discovered before or after Closing, for two (2) years after the Closing Date. Notwithstanding anything to the contrary contained in the foregoing, Buyer’s recovery shall be limited to the amount of available insurance proceeds and nothing herein shall be deemed a waiver of Seller’s statutory tort limits under Minn. Stat. Chapter 466. 11.) RIGHT OF FIRST REFUSAL. For a period of two years following the Closing, Buyer shall have the right of first refusal to purchase Lot 2, Block 1, Cedar Grove Parkway 4th Addition (the “Restricted Property”) for the purpose of developing a second hotel. This exclusivity shall survive the Closing. In the event Seller obtains an offer to purchase the Restricted Property to develop a hotel which the staff at the City of Eagan will recommend that the Seller accept (the “Offer”), Seller shall provide Buyer with written notice and a copy of such offer. Buyer shall have thirty (30) days to determine whether it will match the business terms of the Offer and give Seller notice thereof. If Buyer so chooses, Buyer and Seller shall enter into a purchase agreement similar to this Agreement including provisions for a one hundred fifty (150) day Inspection Period, a title review process but with the price and other business terms of the Offer. If Buyer declines to match the Offer, Seller may proceed with the sale to the thirty party, provided that if no such sale occurs within one hundred eighty (180) days thereafter, this right of first refusal will again be applicable to the property subject to the Offer. 12.) REPRESENTATIONS, WARRANTIES AND INDEMNITY BY BUYER. Buyer represents and warrants to Seller that Buyer has the power and authority to execute this Agreement and any Buyer’s Closing Documents signed by it; that all such documents have been authorized by all necessary action on the part of Buyer and at the Closing shall have been duly executed and delivered; that the execution, delivery, and performance by Buyer of such documents does not conflict with or violate any judgment, order or decree of any court or arbiter or any agreement by which Buyer is bound; and that all such documents are valid and binding obligations of Buyer and are enforceable in accordance with their terms. 10 Buyer will indemnify Seller and its successors and assigns against, and will hold Seller and its successors and assigns harmless from, any expenses or damages, including reasonable attorneys’ fees that Seller incurs because of the breach of any of the above representations and warranties, whether such breach is discovered before or after Closing, for two (2) years after the Closing Date. 13.) CONDEMNATION. If, prior to the Closing Date, any governmental entity commences any eminent domain proceedings (“Proceedings”) against all or any part of the Real Property, Seller shall give notice to Buyer of such fact, and, at Buyer’s option (to be exercised by notice to Seller within thirty (30) days after Seller’s notice), this Agreement shall terminate, in which event Title Company shall promptly return the Earnest Money to Buyer. Upon such termination and return, neither Seller nor Buyer shall have any further rights or obligations under this Agreement, except for the Surviving Covenant. If Buyer does not give such notice, then there shall be no reduction in the Purchase Price, provided, however, that Seller shall assign to Buyer at the Closing Date all of Seller’s right, title, and interest in and to any award made or to be made in the Proceedings. Prior to the Closing Date, Seller shall not designate counsel, appear in, or otherwise act with respect to the Proceedings without Buyer’s prior written consent. 14.) ASSIGNMENT. Buyer reserves the right, at Buyer’s sole discretion, to assign all or part of its interest in and to this Agreement to an affiliate of Buyer. Notwithstanding the foregoing, neither Seller nor Buyer may assign its rights under this Agreement for any other purpose, without the prior written consent of the other party. 15.) SURVIVAL. All of the covenants, representations and warranties made in this Agreement which either by their terms expressly survive Closing, or are contained in any schedule, exhibit, certificate, or document delivered at Closing, will survive and be enforceable after the Closing. 16.) NOTICES. Any notice required or permitted to be given under any provision of this Agreement shall be in writing and shall be deemed to have been given in accordance with this Agreement, if it is mailed, by United States certified mail, return receipt requested, postage prepaid; or if deposited cost paid with a nationally recognized, reputable overnight courier, properly addressed as follows: If to Seller: Eagan Economic Development Authority 3830 Pilot Knob Road Eagan, Minnesota 55122 with a copy to: Dougherty, Molenda, Solfest, Hills & Bauer P.A. 14985 Glazier Avenue, Suite 525 Apple Valley, Minnesota 55124 Attn: Robert B. Bauer If to Buyer: JR Hospitality II, LLC 1416 Horseshoe Circle Eagan, MN 55122 with a copy to: Tammy J. Schemmel, Esq. Barna, Guzy and Steffen, Ltd. 200 Coon Rapids Blvd. NW, #400 Coon Rapids, MN 55433 11 and to: Jamie L. Cox, Esq. Vice Cox & Townsend PLLC 2307 River Rd., Suite 203 Louisville, KY 40206 Notice shall be effective, and the time for response to any notice by the other party shall commence to run, one (1) business day after any such mailing or deposit. Either Seller or Buyer may change its address for the service of notice by giving notice of such change to the other party, in any manner above specified, ten (10) days prior to the effective date of such change. Notwithstanding the foregoing, any party may give any other party written notice hereunder by any means other than by United States registered or certified mail or overnight courier, which is reasonably calculated to reach the other party, including but not limited to hand delivery, email transmission or facsimile transmission, provided that any such notice shall be deemed to have been given and shall be effective only when actually received by the addressee, proof of which shall be furnished by the party sending such notice 17.) CAPTIONS; EXHIBITS. The section and paragraph headings or captions appearing in this Agreement are for convenience only, are not a part of this Agreement, and are not to be considered in interpreting this Agreement. All schedules, exhibits, addenda or attachments referred to herein are hereby incorporated in and constitute a part of this Agreement. 18.) ENTIRE AGREEMENT; MODIFICATION. This written Agreement constitutes the complete agreement between Seller and Buyer and supersedes any prior oral or written agreements between them regarding the Real Property. There are no oral agreements that change this Agreement, and no amendment of any of its terms will be effective unless in writing and executed by both Seller and Buyer. 19.) BINDING EFFECT. This Agreement binds and benefits Seller and Buyer and their respective successors and assigns. 20.) CONTROLLING LAW. This Agreement has been made under, and will be interpreted and controlled by, the laws of the State of Minnesota. 21.) WAIVER. No waiver of the provisions of this Agreement shall be effective unless in writing, executed by the party to be charged with such waiver. No waiver shall be deemed a continuing waiver or waiver in respect of any subsequent breach or default, either of similar or different nature, unless expressly stated in writing. 22.) COUNTERPARTS. This Agreement may be executed in any number of counterparts and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute but one Agreement. 23.) FACSIMILE SIGNATURES. This Agreement may be executed with signatures transmitted by facsimile or email and shall constitute a binding agreement with such signatures. Nonetheless, any party providing facsimile or emailed signatures shall provide the other party with the original signatures within five (5) business days after providing the facsimile signature page(s). 24.) SEVERABILITY. If any provision of this Agreement is invalid or unenforceable, such provision shall be deemed to be modified to be within the limits of enforceability or validity, if feasible; however, if the offending provision cannot be so modified, it shall be stricken and all other provisions of this Agreement in all other respects shall remain valid and enforceable. 12 25.) LIMITATION OF LIABILITY. Upon Closing, Buyer shall neither assume nor undertake to pay, satisfy or discharge any liabilities, obligations or commitments of any Seller other than those specifically agreed to between the parties and set forth in this Agreement. 26.) REMEDIES. Time is of the essence of this Agreement. If Seller fails to perform any of its obligations under this Agreement, Buyer may (i) terminate this Agreement and obtain a full refund of all the Deposits; and/or (ii) seek and recover from Seller specific performance of this Agreement. If any actions is brought to specifically enforce this Agreement, Seller shall waive the defense that there is an adequate remedy at law. If Buyer defaults in performance of its obligations under this Agreement, Seller shall have the right to terminate this Agreement in the manner provided by Minn. Stat. Sec. 559.21 and to obtain the Earnest Money (to the extent paid by Buyer) as liquidated damages. Such termination of this Agreement and receipt of the Deposits will be the only remedies available to Seller for such default by Buyer, and Buyer will not be liable for damages or specific performance. 27.) REAL ESTATE BROKERS. Seller represents to Buyer that it has entered into a Preliminary Development Agreement with Pratt Development, Inc. (“Seller’s Broker”) in connection with the transactions contemplated by this Agreement. Buyer represents to Seller that it has not engaged a broker in connection with the transactions contemplated by this Agreement. All brokers’ fees, finder’s fees, commissions or other similar fees to be paid to Seller’s broker, Buyer’s broker and/or any employees or agents thereof in connection with the transactions contemplated by this Agreement shall be paid by Seller at Closing from Seller’s proceeds therefrom. The provisions of this Section 27 shall survive the Closing. Seller and Buyer have executed this Agreement as of the date set forth above. BUYER: JR Hospitality II, LLC, a Minnesota limited liability company By: ____________________________________ _________________________________ Its: ______________________________ SELLER: Eagan Economic Development Authority, a public body corporate and politic and a political subdivision of the State of Minnesota By: ____________________________________ Mike Maguire Its: President By: ____________________________________ David M. Osberg Its: Executive Director EXHIBIT “A” Parking Ramp Easement and Operating Agreement EXHIBIT “B” Repurchase Agreement further repair any material damage to the Real Property caused by or occurring as a result of Buyer's testing. (b) Cooperation. Seller shall, without charge to Buyer, cooperate in Buyer's attempts to obtain all governmental approvals and permits necessary in Buyer's judgment in order to allow the lawful use of the Real Property for Buyer's intended purposes. Nothing in this Agreement shall be deemed a waiver of the Eagan City Council's right to exercise its legislative discretion to approve or reject any development proposal presented to the City by Buyer. (c) ' Documents. Within ten (10) days after the date of this Agreement, Seller shall deliver to Buyer true and correct copies of all of the Documents (as hereinafter defined) for Buyer's examination and analysis. (d) Document Review. Buyer shall have determined in its sole discretion, that it is satisfied with its examination and analysis of all contracts, agreements, plans, warranties and all other documents in connection with the Real Property (together with any amendments thereto), including, without limitation, the following (all of which are collectively referred to herein as the "Documents"): (i) Tests. To the extent available, results of soil tests, percolation tests, structural engineering tests, masonry tests, water, oil, gas, mineral, asbestos,, radon, formaldehyde, PCB or other environmental tests, inspection reports, surveys, market studies and core samples, if any, which relate to the Real Property or the business carried upon therein and which are either in Seller's possession or control. (ii) Phase I ESA. Copies of any environmental reports, including any Phase I Environmdntal Site Assessments and/or Phase H Environmental Site Assessments, concerning all or part of the Real Property that are in Seller's possession or control. (iii) Surveys and Maps. To the extent available, surveys, plats or other depictions relating to the Real Property and copies of all wetland analyses, planning studies, aerial photographs, topographical maps or studies, engineering studies and plans and mylars. (iv) Title Insurance Policies. All title insurance policies with exception documents related to the Real Property. (v) Contracts. All agreements, contracts, agreements or other instruments affecting all or any portion of the Real Property, if any, (collectively the "Contracts"), including, without limitation, all warranties and guaranties given to, assigned to, or benefiting Seller or the Real Property. O, (d) Governmental Approvals. Buyer shall have, obtained, at its sole cost and expense, all governmental permits, approvals and licenses as Buyer deems necessary in its sole discretion for its intended development, construction and use of the Real Property. (e) Compliance with Laws. On or before the Inspection Deadline, Buyer shall have reasonably determined that the Real Property and Buyer's intended use there of fully complies with all existing local, state, and federal regulations concerning the maintenance and operation of the Real Property, including zoning, building, health and safety, fire safety and environmental codes and laws and such use is and will be a legal conforming use. (f) Title. Title shall have been found acceptable by Buyer in its sole discretion, or been made acceptable, in accordance with the requirements and terms of Section 6 below. (g) Financing. Buyer shall have obtained financing in the form of equity and construction financing for the purchase of the Real Property on terms satisfactory to Buyer in Buyer's sole discretion. (h) Hotel Franchise. Buyer shall successfully procure approval of a hotel franchise agreement for the Real Property to operate a Hilton Home 2 hotel on terms satisfactory to Buyer in Buyer's sole discretion. (i) Environmental Remediation. Seller shall have completed all environmental remediation on the Real Property that can reasonably be completed prior to any construction activity, provided that in any event Seller shall have obtained from the Minnesota Pollution Control Agency a "no association" letter expressly to or for the reliance of Buyer and sufficient in Buyer's sole discretion for Buyer to be an "innocent purchase" and t6 be protected from being a "responsible party" under applicable federal, state and local environmental laws. If there are any delays in completing environmental remediation as specified by this Agreement through no fault of Buyer, Buyer and Seller shall work in good faith to extend the timelines established in this Agreement; provided that such extensions shall not hinder nor delay Buyer's efforts to finance or lease the Project to prospective tenants. 0) Storm Water. The Real Property is presently served by an existing, permitted offsite storm water system along Minnesota State Highway U and Silver Bell Road, and such system complies with all applicable laws. Buyer shall have received confirmation from the City that such off-site storm water systems are adequate to serve the Real Property, has an efficient and properly placed access point on the Real Property and Buyer's proposed development thereon, that it can utilize, without cost, other than typical annual maintenance costs, such system for the transport, storage and treatment of all storm water from the Proposed Project. (k) Representations and Warranties. The representations and warranties of Seller contained in this Agreement will be true now and on the Closing Date as if made on the Closing Date. (1) Utili , Location. Buyer shall have confirmed that the location of the utilities coming into the Real Property is acceptable. (m) Government Fees. Buyer shall have confirmed the amount of all governmental fees in connection with the development of the Real Property is acceptable. If any condition set forth in this Section 4 has not been satisfied or waived by Buyer on or before October 28, 2016 (the "Inspection Deadline"), then Buyer may, at Buyer's option, terminate this Agreement. Upon receipt of such notice, from Buyer, Title Company shall promptly return the Earnest Money to Buyer. Upon such termination and return, neither Seller nor Buyer shall have any further rights or obligations under this Agreement except for the covenants set forth in the last paragraph of this Section 4 regarding liens arising out of Buyer's activities on the Real Property (the "Surviving Covenant"). If Buyer has not terminated this Agreement on or before the Inspection Deadline, then Buyer shall be deemed to have waived the contingencies set forth herein. Notwithstanding anything to the contrary in this Agreement, in the event that this Agreement is terminated by Buyer for any reason under this Agreement other than as a remedy for a Seller default pursuant to Section 26 below, the Title Company shall not release the Earnest Money to Buyer until Buyer delivers a written request therefor. If this Agreement is so terminated, Buyer shall not allow liens to be filed against the Real Property as a result of Buyer's activities on the Real Property and, if any liens are filed, Buyer shall promptly cause them to be released. 5.) CONDITIONS TO SELLER'S OBLIGATIONS. The obligations of Seller under this Agreement are conditioned upon Buyer obtaining, at Buyer's sole cost and expense, all regulatory approvals, provided that if Buyer is satisfied in its sole discretion with such approvals, Seller shall not have a right to terminate this Agreement pursuant to this Section 5. 6.) TITLE MATTERS. Title examination shall be conducted as follows: (a) Title Evidence. Within ten (10) business days after receipt of the Documents, the parties shall obtain the following title evidence (collectively, the "Title Evidence"): (i) Title Insurance Commitment. Buyer shall order a commitment ("Title Commitment") from Title Company for an ALTA Form B 2006 Owner's Policy. of Title Insurance committing to insure a marketable title to the Real Property in Buyer; Buyer shall request that the Title Company delete so-called "standard exceptions" related to survey matters, parties in possession, and liens for labor, materials and services; including affirmative insurance regarding appurtenant easements, separate real estate tax parcel, in the amount of the Purchase Price, and issued by the Title Company. The cost of the Title Commitment shall be paid by the Seller. The Title Commitment shall include complete and accurate copies of all matters described in Schedule B thereof; and (ii) Survey. Seller shall provide, at Seller's cost, a current survey of the Real Property, certified to Seller, Buyer, Title Company and Buyer's lender, prepared in accordance with ALTA/ACSM standards and such other requirements as requested by Buyer or Buyer's lender (the "Survey"). Seller shall deliver a copy of the survey to Buyer, and. Buyer shall have five (5) days following receipt thereof, to either approve or disapprove of the composition of the Real Property as depicted therein. If the Buyer disapproves of the survey, the parties shall confer as to reconciling the issues with the survey. The cost of the Survey shall be paid by the Seller. (b) Buyer's Objections. Within ten (10) days after receiving the last item of the Title Evidence (but no later than September 30, 2016), Buyer shall notify Seller of any objections ("Objections") to matters disclosed in the Title Evidence. Buyer shall be deemed to have automatically made Objections to any mortgage, judgment, tax lien, mechanic's lien and any other monetary.lien against the Real Property (collectively "Monetary Liens"). With respect to any update to the Title Commitment and/or the Survey, Buyer shall have 10 days after Buyer's receipt of the applicable updated Title Commitment and/or Survey to notify Seller of any Objections; provided that Buyer shall not have the right to object to any matters that were shown on a previous Title Commitment and/or Survey and not timely objected to by Buyer. Seller shall use reasonable efforts to correct any Objections which shall include, if applicable, payment of the Monetary Liens out of proceeds from Closing on the Closing Date if they are not satisfied prior thereto. At Closing, Buyer shall have the right to require endorsement(s) to the Title Policy. If the Objections are not cured prior to the Closing Date, Buyer will have the option to do any of the following by notice provided to Seller: (i) Terminate. Terminate this Agreement pursuant to Section 4 herein, on or before the Closing Date. Upon receipt of such notice from Buyer, Title Company shall promptly return the Earnest Money to Buyer. Upon such return, neither Seller nor Buyer shall have any further rights or obligations under this Agreement, except for the Surviving Covenants; or (ii) Waive. Waive the Objections and close the transaction contemplated by this Agreement as if such Objections had not been made. (c) Title Policy. If the Closing occurs, Title Company shall issue an owner's title insurance policy ("Title Policy") pursuant to the Title Commitment, or a suitable markup of the Title Commitment initiated by the Title Company undertaking to issue such a Title Policy within a reasonable time in the form required by the Title Commitment as approved by Buyer. 7.) CLOSING PROCEDURES. (a) Closing Date. The closing of the purchase and sale contemplated by this Agreement (the "Closing") shall occur on October 31, 2016 (the "Closing Date"). The Closing shall take place at 10:00 a.m. local time at the office of Title Company, or such other location as determined by the Seller. (b) Seller's Closing Documents. On the Closing, Date, Seller shall execute and/or deliver to Buyer the following (collectively, the "Seller's Closing Documents"): (i) Deed. A United Warranty Deed (the "Deed"), in recordable form, conveying marketable title to the Real Property to Buyer, free and clear of all encumbrances, other than those encumbrances not objected to or waived pursuant to Section 6. The deed must incorporate a covenant running with the land as required by MINN. STAT. § 469.105; (ii) Title Policy. The Title Policy, or a suitably marked -up Title Commitment, as provided for in Section 6, herein; (iii) Seller's Affidavit. An Affidavit by Seller indicating that on the Closing Date there are no outstanding, unsatisfied judgments, tax liens, or bankruptcies against or involving Seller or the Real Property; that there has been no skill, labor, or material furnished to the Real Property for which payment has not been made or for which mechanics' liens could be filed; and there are no other unrecorded interests in the Real Property, together with whatever standard owner's affidavit as may be required by the Title Company to issue the Title Policy; (iv) FIRPTA Affidavit. A nonforeign affidavit, properly executed and in recordable form, containing such information as is required by IRC Section 1445(b)(2) and its regulations; (v) Original Documents. Seller shall deliver to Buyer all original Documents (or suitable copies thereof) that may be necessary for Buyer to develop'and operate the Real Property. Where necessary to comply with statutory record retention requirements, Seller may retain originals of records and provide copies to Buyer; and (vi) Parking Ramp Easement and Operating Agreement. A Parking Ramp Easement and Operating Agreement substantially in the form as set forth on Exhibit A attached hereto; (vii) Repurchase Agreement. A repurchase agreement substantially in the form as set forth on Exhibit B; and (viii) Other Documents. All other documents reasonably determined by Buyer or the Title Company to be necessary to transfer the Real Property to Buyer. (c) Buyer's Closing Documents. On the Closing Date, Buyer will execute and/or deliver to Seller the following (collectively, "Buyer's Closing Documents"): (i) Purchase Price. The balance of the Purchase Price to be paid as required by Section 2; (ii) Parking Ramp Easement and Operating Agreement. A Parking Ramp Easement and Operating Agreement substantially in the form as set forth on Exhibit A attached hereto; (iii) Repurchase Agreement. A repurchase agreement substantially in the form as set forth on Exhibit B; and (iv) Title Documents: Such affidavits of Buyer or other documents as may be reasonably required by the Title Company in -order to record Seller's Closing Documents and issue the Title Policy. 8.) . PRORATIONS. Seller and Buyer shall make the following prorations and allocations at the Closing: (a) Title Insurance and Closing Fee. Seller shall pay the cost of the Commitment and the Survey and Buyer shall pay the premium for the Title Policy and any endorsements obtained. Seller and Buyer will each pay one-half of any reasonable and customary closing fee or charge imposed by the Title Company or its designated closing agent. (b) Deed Tax. Seller shall pay all state deed tax due on the Deed to be delivered by Seller, under this Agreement. (c) Real Estate Taxes and Special Assessments. Seller shall pay or cause to be paid all general real estate taxes, if any, payable for the Real Property in the years prior to the year in which the Closing occurs, and any deferred or Green Acres real estate taxes. Seller and Buyer shall prorate the general real estate taxes, if any, payable for the Real Property in the year of closing as of the Closing Date based upon the calendar year. Seller shall pay, on or before the Closing Date, all special assessments levied, "pending," deferred or constituting a lien against the Real Property as of the Closing Date, including, without limitation, all installments of special assessments, including interest,. payable in the year of Closing. Nothing in this subparagraph shall be deemed a waiver of the City's ability to lawfully impose future special assessments on the Real Property as well as any assessments that may be agreed to by Buyer as part of the development of the Real Property. Buyer shall be responsible for any Metropolitan or City sewer and water charges associated specifically with the development of the Real Property, but Buyer shall not be responsible for any sanitary area charges, water area charges or storm sewer area charges. (d) Recording_ Costs. Seller will pay the cost of recording all documents necessary to place record title in Seller in the condition warranted by Seller in this Agreement. Buyer will pay the cost of recording all other documents. (e) AttompYs' Fees. Seller and Buyer shall each pay its own attorneys' fees in connection with the preparation and negotiation of this Agreement and the Closing, except that a party defaulting under this Agreement or any of its respective Closing Documents shall pay the reasonable attorneys' fees and court costs incurred by the nondefaulting party to enforce its rights regarding such default. (f) Event of Repurchase. In the event that Seller needs to exercise its right to repurchase the Property as allowed under the Repurchase Agreement, all prorations and closing costs shall be allocated in accordance with the provisions of this Section 8. This provision shall survive the Closing and the delivery of the deed. 9.) OPERATION PRIOR TO CLOSING. During the period from the Effective Date through the Closing Date (the "Executory Period"), Seller shall not execute any contracts, easements, leases, or other agreements or allow any new encumbrances to exist regarding the Real Property, nor perform any act that would impair or encumber the title to the Real Property or affect the condition of the Real Property, 10.) REPRESENTATIONS AND WARRANTIES BY SELLER. Seller represents and warrants to Buyer as follows, which representations and warranties shall be true and correct as of the Closing: (a) Organization; Authority. Seller has the requisite power and authority to execute and perform this Agreement and any Seller's Closing Documents to be signed by it; such documents have been (or will be prior to Closing) duly authorized by all necessary action on the part of Seller and at the Closing shall have been duly executed and delivered; such execution, delivery, and performance by Seller of such documents does not conflict with or result in a violation of any judgment, order, or decree of any court or arbiter to which Seller is a party, or any agreement by which Seller is bound; and such documents are and shall be valid and binding obligations of Seller, enforceable in accordance with their terms. (b) Title to Real Property. Seller owns the Real Property and has good marketable title, free and clear of all encumbrances, except those encumbrances listed in the Title Commitment. (c) Mechanic's Liens. All labor and materials which have been provided to the Real Property have been fully paid for or will be fully paid for, prior to the Closing Date. (d) Utilities. Gas, sanitary, and storm sewer and water lines are available to the Real Property. Seller has received no notice of actual or threatened reduction or curtailment of any utility service now supplied to the Real Property. (e) Rights of Others to Purchase Real Property. Seller has not entered into any other contracts, agreements or understandings, whether oral or written, for the sale of all or any portion of the Real Property, and there are no existing rights of first refusal or options to purchase all or any portion of the Real Property, or any other rights of others that might prevent the consummation of this Agreement._ (i) Compliance with Laws. The Real Property and the current use thereof fully complies with all existing local, state, and federal regulations concerning the maintenance and operation of the Real Property, including zoning, building, health and safety, fire safety, and environmental codes and laws and such use is a legal conforming use. No notice of violations of the same have been received. To the best of Seller's knowledge, no other permits or licenses are required in order to use the Real Property as intended by Buyer, other than those required by the City acting in its legislative capacity. (g) Litigation and Other Matters. Seller has received no notice, and has no knowledge of any pending or threatened notice, of a violation of any statutes, ordinances, regulations, judicial decrees, or orders, or the pendency or threat of any lawsuits, administrative or arbitration hearings, governmental investigations, proceedings, applications, petitioners, or other matters affecting the Real Property or the use thereof. (h) Private Restrictions. There are no contracts, leases, private restrictions, or agreements with any public authority that will not appear in the Title Commitment and that will affect the present or future uses that may be made of the Real Property, including but not limited to size or cost of buildings or structures; limitation on use or restrictions in regard to fences, roofs, garages, and heights of buildings or structures, except for building and zoning codes; agreements to subject architectural plans to an association or other -group; provisions requiring improvements; provisions requiring the joining of others in group actions; or restrictions imposed on the Real Property due to its historical significance. - (i) Condemnation. Seller has not received any notice of any pending condemnation, eminent domain or other similar action, suit or proceeding that would affect the Real Property. To the best of Seller's knowledge, after due inquiry, there are no such proceedings pending or threatened against the Real Property and there are no applications, ordinances, petitions, resolutions, or other matters pending before any governmental agency in regard to access routes, curb cuts, median strips, or other contemplated actions of public agencies that might tend to diminish or curtail the full flow of traffic proximate to the Real Property and access thereto. Seller has not received a notice of any pending or threatened condemnation, eminent domain or other similar action, suit or proceeding that would affect the Real Property. 0) Storage Tanks. There are no above -ground or underground tanks that are located in or about the Real Property. All tanks that have been removed have been removed and closed in compliance with all federal, state and local laws.. (k) Wells and Septic. Seller knows of no wells on the Real Property. At the time of Closing, Seller will deliver any required well certificate pursuant to applicable laws. There is no "individual sewage treatment system" within the meaning of Minn. Stat. Section 115.55 on or serving the Real Property. Sewage generated at the Real Property goes to a facility permitted by the Minnesota Pollution Control Agency. (1) Assessments. Seller has not received any notice of any actual or proposed special assessments or reassessments of the Real Property. (in) Hazardous Substances. Except as set forth in the Phase I Survey dated August 2004 prepared by Braun Intertec, Phase I Survey updated September 2012 by Braun Intertec and Phase 11 Survey dated April 2006 prepared by Braun Intertec, there are no Hazardous Substances stored, deposited or located within the property or under the surface of the property. For purposes of this warranty and representation, the term "Hazardous Substances" means asbestos and asbestos- containing materials, polychlorinated biphenyls, nuclear fuel or materials, chemical waste, radioactive materials, explosives, known carcinogens, petroleum products, or other dangerous, toxic, or hazardous pollutant, contaminant, chemical, material or substance defined as hazardous or as a pollutant or contaminant in, or the release or disposal of which is regulated by, any Environmental Laws. For purposes of this Agreement, the term "Environmental Laws" shall mean the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601-9657, as amended, and any other federal, state and local laws, rules and regulations dealing with Hazardous Substances, the environment or public health. (n) FIRPTA. Seller is not a "foreign person," "foreign partnership;" "•foreign trust" or "foreign estate," as those terms are defined in Section 1445 of the Internal Revenue Code. (o) Airport Zoning Ordinance. For the purposes of satisfying any applicable requirements of Minn. Stat. § 360.065, a copy of any airport zoning regulations affecting the Real Property can be reviewed or obtained at the Office of the Dakota County Recorder. Except for the warranties, covenants and representations explicitly set forth in this Agreement, Seller and Buyer agree that Buyer will accept possession of the Real Property in its AS -IS condition, WITH ALL FAULTS, and the sale of the Real Property to Buyer shall be without any other representation, covenant or warranty of any kind, express or implied, and Buyer, for Buyer, Buyer's agents, attorneys, representatives, heirs and assigns does hereby disclaim and renounce any other representation or warranty. Seller will indemnify Buyer and its successors and assigns against, and will hold Buyer and its successors and assigns harmless from, any expenses or damages, including reasonable attorneys' fees that Buyer incurs because of the breach of any of the above representations and warranties, whether such breach is discovered before or after Closing, for two (2) years after the Closing Date. Notwithstanding anything to the contrary contained in the foregoing, Buyer's recovery shall be limited to the amount of available insurance proceeds and nothing herein shall be deemed a waiver of Seller's statutory tort limits under Minn. Stat. Chapter 466. 11.) RIGHT OF FIRST REFUSAL. For a period of two years following the Closing, Buyer shall have the right of first refusal to purchase Lot 2, Block 1, Cedar Grove Parkway 411 Addition (the "Restricted Property") for the purpose of developing a second hotel. This exclusivity shall survive the Closing. In the event Seller obtains an offer to purchase the Restricted Property to develop a hotel which the staff at the City of Eagan will recommend that the Seller accept (the "Offer"), Seller shall provide Buyer with written notice and a copy of such offer. Buyer shall have thirty (30) to determine whether it will match the business terms of the Offer and give Seller notice thereof. If Buyer so chooses, Buyer and Seller shall enter into a purchase agreement similar to this.,Agreement including provisions for a one hundred fifty (150) day Inspection Period, a title review process but with the price and other business terms of the Offer. If Buyer declines to match the Offer, Seller may proceed with the sale to the thirty party, provided that if no such sale occurs within one hundred eighty (180) days thereafter, this right of first refusal will again be applicable to the property subject to the Offer. 12.) REPRESENTATIONS WARRANTIES AND INDEMNITY BY BUYER. Buyer represents and warrants to Seller that Buyer has the power and authority to execute this Agreement and any Buyer's Closing Documents signed by it; that all such documents have been authorized by all necessary action on the part of Buyer and at the Closing shall have been duly executed and delivered; that the execution, delivery, and performance by Buyer of such documents does not conflict with or violate any judgment, order or decree of any court or arbiter or any agreement by which Buyer is bound; and that all such documents are valid and binding obligations of Buyer and are enforceable in accordance with their terms. Buyer will indemnify Seller and its successors and assigns against, and will hold Seller and its successors and assigns harmless from, any expenses or damages, including reasonable attorneys' fees that Seller incurs because of the breach of any of the above representations and warranties, whether such breach is discovered before or after Closing, for two (2) years after the Closing Date, 13.) CONDEMNATION. If, prior to the Closing Date, any governmental entity commences any eminent domain proceedings ('Troceedings") against all or any part of the Real Property, Seller shall give notice to Buyer of such fact, and, at Buyer's option (to be exercised by notice to Seller within thirty (30) days after Seller's notice), this Agreement shall terminate, in which event Title Company shall promptly return the Earnest Money to Buyer. Upon such termination and return, neither Seller nor Buyer shall have any further rights or obligations under this Agreement, except for the Surviving Covenant. If Buyer does not give such notice, then there shall be no reduction in the Purchase Price, provided, however, that Seller shall assign to Buyer at the Closing Date all of Seller's right, title, and interest in and to any award made or to be made in the Proceedings. Prior to the Closing Date, Seller shall not designate counsel, appear in, or otherwise act with respect to the Proceedings without Buyer's prior written consent. 14.) ASSIGNMENT. Buyer reserves the right, at Buyer's sole discretion, to assign all or part of its interest in and to this Agreement to an affiliate of Buyer. Notwithstanding the foregoing, neither Seller nor Buyer may assign its rights under this Agreement for any other purpose, without the prior written consent of the other party. 15.) SURVIVAL. All of the covenants, representations and warranties made in this Agreement which either by their terms expressly survive Closing, or are contained in any schedule, exhibit, certificate, or document delivered at Closing, will survive and be enforceable after the Closing. 16.) NOTICES. Any notice required or permitted to be. given under any provision of this Agreement shall be in writing and shall be deemed to have been given in accordance with this Agreement, if it is mailed, by United States certified mail, return receipt requested, postage prepaid; or if deposited cost paid with a nationally recognized, reputable overnight courier, properly addressed as follows: If to Seller: Eagan Economic Development Authority 3830 Pilot Knob Road .. Eagan, Minnesota 55122 with a copy to: Dougherty, Molenda, Solfest, Hills & Bauer P.A. 14985 Glazier Avenue, Suite 525 Apple Valley, Minnesota 55124 Attn: Robert B. Bauer If to Buyer: JR Hospitality Il, LLC 1,416 Horseshoe Circle Eagan, MN 55122 with a copy to: Tammy J. Schemmel, Esq. Barna, Guzy and Steffen, Ltd. 200 Coon Rapids Blvd. NW, #400 Coon Rapids, MN 55433 and to: Jamie L. Cox, Esq. Vice Cox & Townsend PLLC 2307 River Rd., Suite 203 Louisville, KY 40206 Notice shall be effective, and the time for response to any notice by the other party shall commence to run, one (1) business day after any such mailing or deposit. Either Seller or Buyer may change its address for the service of notice by giving notice of such change to the other party, in any manner above specified, ten (10) days prior to the effective date of such change. Notwithstanding the foregoing, any party may give any other party written notice hereunder by any means other than by United States registered or certified mail or overnight courier, which is reasonably calculated to reach the other party, including but not limited to hand delivery, email transmission or facsimile transmission, provided that any such notice shall be deemed to have been given and shall be effective only when actually received by the addressee, proof of which shall be furnished by the party sending such notice 17.) CAPTIONS, EXIIIBITS. The section and paragraph headings or captions appearing in this Agreement are for convenience only, are not a part of this Agreement, and are not to be considered in interpreting this Agreement. All schedules, exhibits, addenda or attachments referred to herein are hereby incorporated in and constitute a part of this Agreement. �. 18.) ENTIRE AGREEMENT; MODIFICATION. This written Agreement constitutes the complete agreement between Seller and Buyer and supersedes any prior oral or written agreements between them regarding the Real Property. There are no oral agreements that change this Agreement, and no amendment of any of its terms will be effective unless in writing and executed by both Seller and Buyer. 19.) BINDING EFFECT. This Agreement binds and benefits Seller and Buyer and their respective successors and assigns. 20.) CONTROLLING LAW. This Agreement has been made under, and will be interpreted and controlled by, the laws of the State of Minnesota. 21.) WAIVER. No waiver of the provisions of this Agreement shall be effective unless in writing, executed by the parry to be charged with such waiver. No waiver shall be deemed a continuing waiver or waiver in respect of any subsequent breach or default, either of similar or different nature, unless expressly stated in writing. 22.) COUNTERPARTS. This Agreement may be executed in any number of counterparts and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute but one Agreement. 23.) FACSIMILE SIGNATURES. This Agreement may be executed with signatures transmitted by facsimile or email and shall constitute a binding agreement with such signatures. Nonetheless, any party providing facsimile or emailed signatures shall provide the other party with the original signatures within five (5) business days after providing the facsimile signature page(s). 24.) SEVERABILITY. If any provision of this Agreement is invalid or unenforceable, such provision shall be deemed to be modified to be within the limits of enforceability or validity, if feasible; however, if the offending provision cannot be so modified, it shall be stricken and all other provisions of this Agreement in all other respects shall remain valid and enforceable. 25.) LIMITATION OF LIABILITY. Upon Closing, Buyer shall neither assume nor undertake to pay, satisfy or discharge any liabilities, obligations or commitments of any Seller other than those specifically agreed to between the parties and set forth in this Agreement. 26.) REMEDIES. Time is of the essence of this Agreement. If Seller fails to perform any of its obligations under this Agreement, Buyer may (i) terminate this Agreement and obtain a full refund of all the Deposits; and/or (ii) seek and recover from Seller specific performance of this Agreement. If any actions is brought to specifically enforce this Agreement, Seller shall waive the defense that there is an adequate remedy at law. If Buyer defaults in performance of its obligations under this Agreement, Seller shall have the right to terminate this Agreement in the manner provided by Minn, Stat. Sec. 559.21 and to obtain the Earnest Money (to the extent paid by Buyer) as liquidated damages. Such termination of this Agreement and receipt of the Deposits will be the only remedies available to Seller for such default by Buyer, and Buyer will not be liable for damages or specific performance. 27.) REAL ESTATE BROKERS. Seller represents to Buyer that it has entered into a Preliminary Development Agreement with Pratt Development, Inc. ("Seller's Broker") in connection with the transactions contemplated by this Agreement. Buyer represents to Seller that it has not engaged a broker in connection with the transactions contemplated by this Agreement. All brokers' fees, fmder's fees, commissions or other similar fees to be paid to Seller's broker, Buyer's broker and/or any employees or agents thereof in connection with the transactions contemplated by this Agreement shall be paid by Seller at Closing from Seller's proceeds therefrom. The provisions of this Section 27 shall survive the Closing. Seller and Buyer have executed this Agreement as of the date set forth above. JR Hospitality H, LLC, a Minnesota limited liability company By: Its: SELLER: Eagan Economic Development Authority, a public body corporate and politic and a political subdivision of the State of Minnesota By: Mike Maguire Its: President By: David M. Osberg Its: Executive Director X01 1 Parking Ramp Easement and Operating Agreement q: 1. Repurchase Agreement EXHIBIT "A" TO SALE AND PURCHASE AGREEMENT PARKING RAMP EASEMENT AND OPERATING AGREEMENT THIS PARKING RAMP EASEMENT AND OPERATING AGREEMENT (the "Agreement"), is made this day of , 2016 to be effective as of 2016 by the Eagan Economic Development Authority, a public body corporate and politic and a political subdivision of the State of Minnesota (the "EDA") and JR Hospitality Il, LLC, a Minnesota limited liability company, and its assigns (the "Developer"). . Recitals WHEREAS, EDA has completed the construction of the Ramp (as hereinafter defined) and is the owner of the Ramp Parcel (hereinafter defined); WHEREAS, of even date herewith Developer has acquired from EDA the Hotel Parcel (hereinafter defined); WHEREAS, Developer has agreed to make a financial contribution to EDA for the construction on the Ramp Parcel (hereinafter defined) of a two (2) level parking ramp (together with all on and off-site pedestrian and vehicular entry and access ways thereto, the "Ramp") containing at least 1,400istalls, and EDA has agreed to construct the Ramp; WHEREAS, Developer has obtained all City of Eagan, Minnesota (the "City") approvals for development on the Hotel Parcel of a X2`3 room limited service hotel (the "Hotel Developta�e�at"); �. j. WHEREAS, (i) the "Hotel Parcel" means that certain real property located in Dakota County, Minnesota which is legally described on Exhibit A attached hereto and incorporated herein; (ii) the "Ramp Parcel" means that certain real property located in Dakota County, Minnesota which is legally described on Exhibit B attached hereto and incorporated herein; and (iii) "Developer" means Developer as identified above and any subsequent owner of fee simple title to the Hotel Parcel. WHEREAS, EDA desires to establish and impose on the Ramp Parcel, for the use and benefit of Developer and the Hotel Parcel, the hereinafter specified easements, covenants, and agreements; and WHEREAS, the establishment and imposition on the Ramp Parcel of such easements, covenants and agreements was a material inducement and consideration for Developer's acquisition of the Hotel Parcel from EDA and is a material inducement and consideration for Developer's development of the Hotel Development on the Hotel Parcel; WHEREAS, EDA entered into a Parking Ramp Easement and Operating Agreement dated April 2, 2013 (the "Paragon Agreement") with Paragon Outlets Eagan, LLC ("Paragon" pursuant to which Paragon has a non-exclusive easement for 1,114 parking stalls (the "Paragon Stalls") to the benefit of the parcel on which Paragon has constructed a Shopping Center ("Shopping Center"). NOW THEREFORE, EDA hereby declares that this Agreement and the easements, covenants and agreements set forth herein shall constitute covenants running with the Ramp Parcel for the benefit of and appurtenant to the Hotel Parcel, and that the Ramp Parcel is held and shall be held, owned, used, occupied, leased, mortgaged, improved and conveyed subject to this Agreement and the easements, covenants, and conditions set forth herein. All of the easements, covenants and agreements shall run with the Ramp Parcel and shall be binding upon all persons owning or acquiring any right, title or interest therein, and their heirs, personal representatives, successors and assigns and shall inure to the benefit of all persons owning or acquiring any right, title or interest therein, and their heirs, personal representatives, successors and assigns. ARTICLE 1 EASEMENTS 1.1 Parking Easement. EDA hereby grants and conveys to Developer, for the benefit of and appurtenant to the Hotel Parcel, a nonexclusive, permanent and perpetual easement upon and across no fewer than 129 parking stalls (the "Developer Funded Parking Stalls") within reasonable proximity to the Hotel Development, within the Ramp for the purpose of vehicular parking by Developer and the occupants, employees, contractors, customers, visitors and invitees of the Hotel Development (the "Parking Easement").. EDA agrees that except as provided in this Agreement with respect to temporary closures, in no event shall there ever be fewer than 1,400 parking stalls in the Ramp. 1.2 Access Easement. EDA hereby grants and conveys to Developer, for the benefit of and appurtenant to the Hotel Parcel, a nonexclusive, permanent easement for vehicular and pedestrian ingress and egress over, upon and across the entry ways, drive aisles, walkways, stairwells and vertical and other pedestrian transportation devices and ways within or serving the Ramp (the "Access Easement"; the Access Easement and the Parking Easement are collectively referred to herein as the "Easements"). 1.3 Impairment Prohibited. EDA shall not install or permit to remain any structure, obstruction, fence, planting or other material that may damage or interfere with the intended purposes of the Easements, except for temporary obstructions required for the safe performance of repairs and maintenance of the Ramp. 1.4 Payment Prohibited. In no event shall EDA require payment or assess any type of charge or fee for parking in the Ramp, provided that EDA may require financial contribution toward the construction and/or maintenance of the Ramp from developers or owners of other of the parcels designated as Outlots A and B, Paragon Addition and Lot 1, Block 2, Cedar Grove Parkway 41h Addition. 2 ARTICLE 2 PARKING RAMP OPERATION, USE AND MAINTENANCE 2.1 Ramp Operation. EDA shall manage the operation of the Ramp in first-class manner and at least to the standard of management of other parking ramps serving first class regional retail shopping centers in the Minneapolis/St. Paul market. EDA's management services shall include, but not be limited to, (i) .providing utilities, employing, supervising and overseeing personnel for, or contracting for the operation, maintenance and repair of the Ramp, (ii) providing or obtaining security, janitorial and other services for the Ramp, (iii) obtaining equipment, material and supplies for the Ramp, and (iv) ensuring clear and efficient traffic and access to, from and within the Ramp. EDA shall keep the Ramp open for parking and access purposes seven (7) days per week twenty-four (24) hours per day (and shall remain open at all times to the extent required to provide for pedestrian access to vehicles and pedestrian and vehicular egress from the Ramp), except for such temporary closures as are permitted under any other provision of this Agreement. The Ramp shall be operated and maintained in a manner that will provide direct or indirect pedestrian access from the Hotel Parcel (the "Hotel") through both levels of the Ramp and ultimately to the Shopping Center. The parties will agree on a reasonable system for identifying vehicles parked by hotel guests, staff and other hotel related parties. 2.2 Repairs and Maintenance. As part of its management of the Ramp, EDA shall, at its sole cost and expense but subject to reimbursement by Developer to the extent provided for in Section 2.5, maintain and repair the Ramp to keep it at least in a first class and safe condition and compliant with all laws, ordinances, statutes, codes rules and regulations ("Laws"). In furtherance and not in limitation of the foregoing, EDA shall: (a) keep the Ramp clean, sightly and free from litter, glass, refuse, filth, excessive dust, debris and graffiti; (b) inspect, clean, repair and maintain all lighting fixtures and relamp and reballast the same as needed to maintain illumination of the Ramp and surrounding areas to at least the standards of first-class municipal parking garages and the vehicle and pedestrian safety of the Hotel Development's occupants, employees, contractors, customers, visitors and invitees; (c) inspect, test, clean, repair and maintain all mechanical, electrical and life safety equipment and systems, including without limitation elevators and other pedestrian transportation equipment and sprinkler, smoke and fire control systems; (d) promptly remove ice and snow from the Ramp and salt and sand the Ramp as needed to keep the Ramp reasonably free from ice and snow and to enable use of the Ramp at all times required hereunder; (e) replace expansion joint system elements as needed; (f) perform general structural maintenance as needed; 3 (g) repaint and/or recoat all painted and coated surfaces with materials of quality at least as high as those utilized in the initial construction of the Ramp; (h) clean, repaint, repair and replace all directional and other signage within or about the Ramp or located elsewhere on the EDA Property providing direction to the Ramp; (i) remove and repair any damaged building materials, including spalling and cracked concrete and corroding metal; and (j) provide operational security cameras that record activity in the Ramp, which recordings shall be kept and made available in accordance with the Data Practices Act and provide security patrols at reasonable intervals. 2.3 TemporaU Closure. If any portion of the Ramp requires closure to accommodate repair or maintenance, such closure shall be of minimal duration and extent and shall be scheduled so as to cause the least practicable disruption to the operation of the Ramp and the Easements. Not in any instance, except in the case of an emergency, shall a temporary closure occur which would not allow Hotel Development's occupants, employees, contractors, customers,. visitors and invitees access to the Hotel Development. During periods of high seasonal retail traffic, such as back -to -school and Thanksgiving/Black Friday and Christmas holidays, as identified by Developer, EDA shall use good faith efforts to schedule any such closures for times the Hotel Development is not open for business. Except in the case of emergency involving risk of personal injury or death or damage to property, EDA shall provide at least five (5) business days' notice of such closure to Developer, and shall to the extent practicable incorporate into the closure schedule or work scope such reasonable mitigation measures as may be recommended by Developer. In the case of an emergency closure, EDA shall provide notice thereof to Developer as soon as reasonably practicable. If any such closure would have the effect of reducing the number of Developer Funded Parking Stalls from that required under Section 1.1 hereof, EDA shall provide temporary parking, at EDA's sole cost, in substitution thereof, reasonably proximate to the Hotel Development. 2.4 Alterations. Except as provided in Article 3 hereof with respect to an Expansion, EDA shall not alter the design or appearance of the Ramp by utilization of finishes or materials of manifestly lower quality than those utilized in the initial construction or in such manner as would impair efficient traffic flow therein or close, remove or take out of service any of the entrances to or exits from the Ramp. 2.5 Cost Reimbursement. Beginning when the Hotel Development opens for business to the general public (the "Opening Date") Developer shall pay to EDA, Developer's Share (hereinafter defined) of Approved Operating Costs (hereinafter defined) pursuant to the following provisions: (a) Promptly following the end of each calendar year but not later than March 30 of each year, EDA shall submit to Developer a statement of Developer's Share of Approved Operating Costs (hereinafter defined). Within thirty (30) days following EDA's submission of the statement to Developer, Developer shall pay Developer's Share of Approved Operating Costs (hereinafter defined) to EDA. In the event of a partial M calendar year after the Opening Date, Developer's obligations shall be prorated based on the ratio of the total number of days after the Opening Date in such calendar year to thirty hundred sixty-five (365). (b) "Developer's Share" means a fraction, the numerator of which is the number of Developer Funded Parking Stalls and denominator of which is the total number of parking stalls within the Ramp. "Operating Costs" means the reasonable out of pocket costs, including reasonable City staff time at standard rates if City employees provide the services, incurred by EDA in connection with the management, operation, maintenance and repair of the Ramp (and including the reasonable cost of insurance premiums for insurance maintained by EDA solely on the Ramp), calculated in accordance with generally accepted accounting principles. Any management fee included in Operating Costs will not exceed commercially reasonable market rate fees. In no event shall Operating Costs include costs (i) resulting from defects in the design or construction of the Ramp or the Expansion, (ii) covered by or required to be covered by insurance hereunder, (iii) resulting from the negligence or willful misconduct of EDA or the City, its employees or contractors, or (iv) that would be treated as capital expenditures under generally accepted accounting principles. ."Approved Operating Costs" means (i) those Operating Costs contained in a budget for each calendar year prepared by EDA and submitted to Developer not later than sixty days prior to the end of the prior calendar year that are approved by Developer in writing, which approval shall not be unreasonably withheld or delayed, and (ii) the Major Repair Reserve. "Major Repair Reserve" means a reserve for major repairs to the Ramp, including structural repairs, necessary to prolong the useful life of the Ramp, such Major Repair Reserve to be funded in annual installments by Developer not later than on each anniversary of the date the Ramp is fully opened to the public commencing with the first such anniversary in the amounts shown on Exhibit C attached hereto and made a part hereof. In the event of a partial year between the Opening Date and the anniversary of the date the Ramp opened, Developer's obligations for contributions to the Major Repair Reserve shall be prorated based on the ratio of the number of days from the Opening Date to such anniversary date to three hundred sixty (365). Notwithstanding that Exhibit C shows payments only through year 50, Developer's obligation commences in the first year anniversary after the hotel is opened, as aforesaid, and will continue, escalating at an inflation factor of 2.1 percent per annum, in perpetuity so long as this Agreement is in force and effect. The parties shall, promptly following the opening of the Ramp to the public, execute and record among the Land Records of Dakota County, Minnesota, a declaration of the date that the Ramp fully opened to the public, which shall be binding with respect to the date installment payments of the Major Repair Reserve are due and payable. (c) Developer or its ft -m of independent certified accountants shall have the right from time to time but not more frequently than annually to audit the books and records of the EDA relating to the operation and management of the Ramp. If any such audit establishes that EDA has misstated Developer's Share of Operating Costs for any calendar year, a reconciling payment shall promptly be made by EDA to Developer or by Developer to EDA, as applicable. The cost of any such audit shall be borne by Developer unless the audit establishes an overstatement of Developer's Share of Operating Costs by more than five (5) percent, in which event EDA shall reimburse Developer the reasonable cost of the audit, which reimbursement shall not constitute an Operating Cost. (d) If in any calendar year EDA incurs an Operating Cost that is not an Approved Operating Cost or exceeds the applicable Approved Operating Cost, and the parties dispute whether Developer should properly bear any portion of such Operating Cost notwithstanding that it is not an Approved Operating Cost or exceeds an Approved Operating Cost, Developer shall pay Developer's Share of the Approved Operating Cost pursuant to the provisions hereof and any undisputed portion of an Operating Cost that is not an Approved Operating Cost, and the parties shall submit any disputed Operating Cost to the dispute resolution procedure pursuant to Article 7. 2.6 EDA Lien for Non -Payment. If Developer shall default in the full, faithful and punctual performance of its obligation to pay Developer's Share of Operating Costs or any installment of the Major Repair Reserve in accordance with and subject to the provisions of Section 2.5 hereof, and such default continues for thirty (30) days after notice from EDA thereof, EDA, in addition to all other remedies it may have at law or in equity, shall have the right and benefit of a lien attached to the Hotel Parcel to take effect upon recordation of a proper claim of lien among the land records of Dakota County, Minnesota. 2.7 Parking Ramp Usage. EDA agrees and covenants that the parking structure shall remain open and useable by Developer twenty-four (24) hours each day, and continuously for three hundred sixty-five (365) days each year; EDA further agrees and covenants that said parking structure shall be fully useable for a period of not less than fifty (50) years from the date the Hotel opens for business to the public. Developer acknowledges that Paragon has a non-exclusive easement to use 1,114 parking stalls within the ramp that is contemplated to contain 1,530 stalls. If it is discovered that the occupants and invitees of the Shopping Center consistently and routinely utilize parking stalls within the ramp in excess of their allotted stalls to the detriment of the Hotel, Developer and EDA shall meet and confer and propose reasonable mitigation measures, including dispute resolution procedure pursuant to Article 7, and work with the Shopping Center to cause its occupants and invitees to utilize a greater number of onsite parking stalls at the outlet mall. Without limiting in any manner Developer's rights with respect to the Parking Easement, if to the material detriment of other dedicated users of parking stalls within the Ramp, the occupants and invitees of the Hotel Development consistently and routinely utilize parking stalls within the Ramp in excess of the Developer Funded Parking Stalls, Developer shall meet and confer with EDA and propose reasonable mitigation measures, including the dispute resolution procedure pursuant to Article 7. 2.8 Dedication of Stalls Prohibited. EDA shall not grant rights to other persons or entities the exclusive use of dedicated parking stalls within the Ramp or otherwise that would exclude Developer and the occupants and invitees of the Hotel Parcel from the use of any parking stalls within the Ramp. Developer should not be permitted to designate any exclusive parking stalls. 6 ARTICLE 3 EXPANSION OF THE RAMP 3.1 Approval of Plans. Any and all construction of the Ramp in connection with an Expansion (hereinafter defined), and any other improvements or modifications to all or any part of the Ramp, shall be made in accordance with plans and specifications and a schedule approved by EDA and Developer in writing, which approval shall not be unreasonably withheld. Developer's approval of the plans and specifications for the Expansion shall be deemed to have been granted if the design of the Expansion utilizes the same or substantially similar materials and finishes as those utilized in the initial construction, of the Ramp, will not impede efficient traffic flow within the Ramp or close, remove or take out of service any of the entrances to or exits from the Ramp. The Developer shall have fifteen (15) business days after receipt of the completed plans and specifications and schedule to make any comments to the EDA. If no comments are received, Developer shall be deemed to have waived any objections to the design and construction schedule for the expansion of the Ramp. If any objections are received, the EDA shall attempt to incorporate any comments made by the Developer to the plans and specifications and the schedule. Notwithstanding the foregoing, if the EDA determines, in the EDA's reasonable discretion, that the contract for the expansion of the ramp must be awarded to avoid delay, then the EDA may, in its sole discretion, award the contract and the Parties shall participate in the dispute resolution procedure provided in Article 7. 3.2 Storage and Staging. No portion of the Ramp may be used for storage or staging of equipment or materials except for reasonable quantities of equipment used for the maintenance of the Ramp, including snow removal. 3.3 Interference; Construction Practices. All .construction of the Expansion shall be performed in accordance with best safety practices and conducted in such a manner as to minimize interference with the operation of the Ramp. EDA shall cause its contractor to physically separate the work site from the Ramp by temporary fencing or temporary construction walls with secured access, limited to construction personnel and other authorized persons, and that adequate provision for dust and debris mitigation shall be put into place to ensure that all portions of the Ramp outside of the work site are kept clean and free of excessive dust and debris. If any portion of the Ramp requires closure to accommodate such construction, such closure shall be of minimal duration and phased so as to cause the least practicable disruption to the operation of the Ramp. If any such closure would have the effect of reducing the number of Developer Funded Panting Stalls from that required under Section 1.1 hereof, EDA shall provide temporary parking in substitution thereof, reasonably proximate to the Hotel Development. ARTICLE 4 INSURANCE 4.1 Insurance Required During Construction. EDA shall procure and maintain, at all times during the process of any construction or improvement of the Ramp or the Expansion until completion of construction and opening of the Ramp or Expansion for parking and access 7 purposes, insurance against loss or damage to the Ramp under a policy or policies covering such risks as are ordinarily insured against for similar structures, including: (a) Builder's risk insurance, written on the `Builder's Risk -Completed Value Basis" with loss proceeds paid to the EDA in an amount equal to 100 percent of the insurable value of the Ramp during the process of construction exclusive of footings, foundations, and underground items; (b) Commercial general liability insurance with limits against bodily injury and property damage of not less than $500,000 per person for bodily injury and property damage and $1,500,000 for bodily injury and property damage for each occurrence and including premises -operations and products -completed operations coverage and contractual liability; and (c) Workers' compensation insurance, with statutory coverage. EDA shall cause its contractors constructing or improving the Ramp or the Expansion to maintain insurance including coverages and limits of at least the greater of (i) the foregoing minimums, or (ii) industry standards. 4.2 Insurance Required After Construction. Upon completion of construction of the Ramp for parking and access purposes, EDA shall insure the Ramp in the manner and in the amounts usual and customary for facilities of the same general nature, including: (a) Insurance against loss or damage under a policy or policies providing so called all risk insurance covering such risks as are ordinarily insured against by similar businesses on a 100% replacement cost basis, but in no event less than an amount equal to the insurable value of the Ramp; and (b) Commercial general liability insurance with limits against bodily injury and property damage of not less than $500,000 per person for bodily injury and property damage and $1,500,000 for bodily injury and property damage for each occurrence and including premises -operations and products -completed operations coverage and contractual liability. 4.3 General Requirements. EDA shall provide Developer with certificates of insurance evidencing the foregoing insurance. All policies required to be maintained by EDA shall be primary and non-contributory with any similar policies maintained by Developer. All policies except Workers Compensation shall name Developer as additional insured thereunder as applicable, and contain deductibles not in excess of industry standards. EDA shall cause the insurance to be required to be maintained pursuant to Sections 4.1 and 4.2 to be increased upon any increase to the statutory tort limits applicable to EDA by the amount of the increase. Such increased limits may be provided by an Umbrella or Excess Liability policy so long as such policy follows the form of the underlying General Liability policy. The certificates of insurance shall provide that Developer must be given (30) thirty days advance written notice of the modification, amendment or cancellation of the insurance. All such insurance shall be in form and amount satisfactory to any mortgagee of the Hotel Development. 4.4 Bonds. EDA shall cause the general contractor performing the initial construction of the Ramp and any expansion and other alteration of the Ramp to obtain for the benefit of EDA payment and performance bonds covering the entire work from sureties meeting the credit and licensing standards generally required by municipalities in the Minneapolis/St. Paul region for work of similar scope and magnitude. 4.5 Restoration Following Casualiy. EDA shall as promptly as practicable following damage to or destruction of the Ramp by casualty or other cause, cause such damage or destruction to be repaired or restored to a like -new condition substantially the same as originally built in accordance with the standards contained in Article 2 hereof and to the full extent required for Developer and the occupants and invitees of the Hotel Parcel to continue to receive the entire benefit of the Easements. EDA acknowledges the critical function of the Ramp to provide parking for the Hotel Parcel and accordingly agrees to work with Developer in identifying reasonable substitute temporary parking facilities for EDA to procure for Developer if a casualty or other event adversely affects the availability of the Easements to the occupants and invitees of the Hotel Parcel. 4.6- Condemnation. If title to any material portion of the Ramp is taken through, power of eminent domain or sold under threat thereof, EDA shall as promptly as practicable following the vesting of such title in the condemner, cause the remaining portion of the Ramp to be repaired or restored in accordance with the standards contained in Article 2 hereof and in such manner as to comprise a functional, unified whole to the full extent required for Developer and the occupants and invitees of the Hotel Parcel to continue to receive the entire benefit of the Easements. 4.7 Indemnification. (a) EDA shall indemnify, defend and hold Developer (which shall be deemed to include, to the full extent applicable, Developer, its partners, members, shareholders, trustees, beneficiaries, officers, employees, agents, consultants, attorneys and representatives) harmless from and against and in respect of any and all claims, demands, actions, suits, proceedings, losses, costs, expenses, obligations, liabilities, damages; recoveries, and deficiencies including interest, penalties and reasonable attorneys' fees, that Developer incurs or suffers, that arise out of, result from or relate to the construction, use, maintenance, repair, reconstruction or inspection of the Ramp and the Expansion except to the extent resulting from the negligence or willful misconduct of Developer. Notwithstanding anything to the contrary contained in the foregoing, Developer's recovery shall be limited to the amount of insurance EDA is required to maintain pursuant to the provisions of this Article 4. (b) Developer shall indemnify, defend. and hold EDA (which shall be deemed to include, to the full extent applicable, EDA, its officers, employees, agents, consultants, attorneys and representatives) harmless from and against and in respect of any and all claims, demands, actions, suits, proceedings, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies including interest, penalties and reasonable attorneys' fees, that EDA incurs or suffers, that arise out of, result from or 9 relate to Developer's use of the Easements, but only to the extent resulting from the negligence or willful misconduct of Developer. 4.8 Municipal Tort Limits. Nothing contained in this Article 4 shall constitute a waiver by EDA of its statutory tort limits; provided, however, that with respect to claims of third parties, Developer shall be entitled to the full protection of EDA's indemnification provided in Section 43(a). ARTICLE 5 ENFORCEMENT OF EASEMENTS, COVENANTS AND AGREEMENTS 5.1 Enforcement. Nothing in the following provisions of this Section 5.1 shall affect the status of the Ramp as a public parking garage open for use by the general public. Each of the easements, covenants and agreements as set forth herein shall be enforceable by Developer. No other person shall have any right to enforce any such easements, covenants and agreements, nor shall any other person, other than Developer acid the occupants and invitees of the Hotel Parcel, have any interest in the easements covenants and agreements hereby created and declared. Nothing contained herein shall constitute a dedication of any interest in such easements, covenants and agreements to the public or give any members of the public any rights hereunder., Failure to enforce the easements, covenants and agreements herein contained shall in no way be deemed a waiver of the right to do so thereafter. 5.2 Self Help. Without limiting the provisions of Section 5.1 hereof, if (a) EDA is in default under any of the provisions hereof this Agreement, and such default continues more than ten (10) days after notice from Developer thereof if the case of a default under the other provisions hereof, or (b) notwithstanding the foregoing, if any condition exists on or within the Ramp that constitutes or creates an immediate threat to health, life or safety or damage to or destruction of property. Developer shall have the right, but not the obligation, (and in the case of clause (a), upon notice to EDA) to take such actions as it may deem' necessary or desirable to remedy such condition. If Developer elects to remedy any such condition, EDA shall reimburse Developer the cost thereof within ten (10) days after. Developer provides a written request therefor, accompanied by supporting invoices. Any reimbursement amount not timely paid shall bear interest until paid at a rate equal to the lesser of (i) twelve percent (12%) per annum or (ii) the highest amount allowed by law. 5.2 Remedies for Violation. In the event of any violation or attempted or threatened violation of the terms hereof or any interference or attempted or threatened interference with the rights and obligations herein granted, each of the easements, restrictions, and covenants may be enforced by a proceeding at law or in equity or both.. If any person entitled to enforce the easements, restrictions and covenants shall elect to enforce the terms hereof by a proceeding in equity, such person may petition for a restraining order or injunction, temporary or permanent, prohibiting such violation or interference and demanding compliance with the provisions, which restraining order and injunction shall be obtainable upon proof of the existence of such violation or attempted or threatened violation or interference. 10 5.3 Cost of Enforcement. If either party hereto seeks to enforce any of the easements or restrictions and covenants created herein in judicial proceedings, the prevailing party therein shall be reimbursed by the other for all or any part of the costs incurred therein, including but not limited to reasonable attorneys' fees, costs and expenses. ARTICLE 6 MISCELLANEOUS 6.1 Notices. Notices required or permitted to be given under any provision of this Agreement shall be in writing and shall be deemed to have been given in accordance with this Agreement, if it is mailed, by United States Certified Mail, return receipt requested, postage prepaid; or if deposited cost paid with a nationally recognized, reputable overnight courier, properly addressed as follows: If to EDA: Eagan Economic Development Authority 3830 Pilot Knob Road Eagan, Minnesota 55122 with a copy to: Dougherty, Molenda, Solfest, Hills & Bauer P.A. 14985 Glazier Avenue Suite 525 Apple Valley, Minnesota 55124 Attn: Robert B. Bauer If to Developer: JR Hospitality II, LLC 1416 Horseshoe Circle Eagan, MN 55122 with a copy to: Tammy J. Schemmel, Esq. Barna, Guzy and Steffen, Ltd. 200 Coon Rapids Blvd. NW, #400 Coon Rapids, MN 55433 Notice shall be' effective, and the time for response to any notice by the other party shall commence to run, three (3) business days after any such mailing or one (1) business day after deposit with any such overnight courier. Either party hereto may change its address for the service of notice by giving notice of such change to the other party, in any manner above specified, ten (10) days prior to the effective date of such change. Notwithstanding the foregoing, any party may give any other party written notice hereunder by any means other than by United States registered or certified mail or overnight courier, which is reasonably calculated to reach the other party, including but not limited to hand delivery, email transmission or facsimile transmission, -provided that any such notice shall be deemed to have been given and shall be effective only when actually received by the addressee, proof of which shall be furnished by the party sending such notice. 11 6.2 No Amendments. No amendment or modification of the terms of this Agreement will be effective unless in writing and executed by Developer, or its successors, and the owner of the Ramp Parcel, and consented to by each and every holder of any mortgage(s) on the Hotel Parcel and Ramp Parcel or any part thereof. 6.3 Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. 6.4 Captions. The title of this instrument and the captions or headings of the articles, sections and subsections hereof are for convenience of reference only and are not to be used in the interpretation of this instrument. 6.5 Waiver. Failure by any party to enforce any provision of this Agreement shall not be deemed a waiver of the right to do so thereafter. 6.6 Generally. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto. Time is of the essence with respect to the payment and performance of the obligations set forth in this Agreement. No third party beneficiary rights are created.by this Agreement. 6.7 Counterparts. This Agreement may be executed in any number of counterparts with the same force and effect as if all signatures were appended to one document, each of which shall be deemed an original. ARTICLE 7 DISPUTE RESOLUTION Except in connection with a proceeding in equity, which will be governed by the rules of procedure of the applicable court, claims, disputes or other matters in question between the parties hereto arising out of or relating to this Agreement or any breach hereof shall be first submitted to mediation, with the parties mutually agreeing upon a mediator and sharing equally the cost thereof. If the parties cannot agree on the mediator, one shall be appointed by the District Court for Dakota County, Minnesota. If the dispute is not resolved through mediation, it shall be governed by the laws of the State of Minnesota with the venue for any dispute being the District Court for Dakota County, Minnesota. 12 IN WITNESS WHEREOF, the undersigned has executed this instrument the day and year first set forth in accordance with the requirements of the Act. DEVELOPER: JR HOSPITALITY H, LLC By It . V STATE OF MINNESOTA) )ss. COUNTY OF DAKOTA ) EDA: EAGAN ECONOMIC DEVELOPMENT AUTHORITY go No Mike Maguire Its: President David M. Osberg Its: Deputy Executive Director The foregoing instrument was acknowledged before me this _ day of , 2016, by Mike Maguire and David M. Osberg, the President and Executive Director of the Eagan Economic Development Authority, a public body corporate and politic and a political subdivision of the State of Minnesota, on behalf of the public body. Notary Public STATE OF ./4 6`nw'e•s ° f1 ) )ss. COUNTY OFo ) The foregoing instrument was acknowledged before me this �rday of 2016, by �3 R lteLl , the V.P. of JR Hospitality II, LLC, a Minnesota limited liability company, on behalf of the limited liability company. Mvw:n tkF •'.R TAMMY J SCHEMMEL NO' P blit NOTARY PUBLIC - MINNESOTA MY COMMISSION EXPIRES 01131117 13 THIS INSTRUMENT WAS DRAFTED BY: Dougherty, Molenda, Solfest, Hills & Bauer P.A. 14985 Glazier Avenue, Suite 525 Apple Valley, Minnesota 55124. (952)953-8857 14 Legal Description of the Hotel Parcel Lot 1, Block 1, Cedar Grove Parkway 4th Addition I' 0 Legal Description of the Ramp Parcel Lot 1, Block 1, CEDAR GROVE PARKWAY 2'D ADDITION, Dakota County, Minnesota, EXHIBIT C Hotel Outlot 2 -128 stalls Year. Hotel Qutlot=2 Yearly. Maintenance. Payment Anqual CPI Inflation Rote Garage'Age 2016 3j927,79 2,10% 3 2017 $4.,010.27 24.10% 4 2018 $4,-0941.49 2.10% 5 2019 $4,180.47 2.10% 6 2020 -4 ,268 26 210%.. 2021 $4,357.89 240% ........ . . . ............ 2022 $4,449,41 2;10% 9 2023 $4,542,85 2.109/0 10 2024 $41638.25 2.10% 11 2025 $4,735.65 2.10% 12 2026 $4i835,10 Z,10% 13 2028 $5,040.30 2.10% 15 2020 $5446,15 2,10% 16 .2-030 $5,254.22 2.10% 17 2031 $5,364.56 2:10% -10% 18 .2032 477,21 2.10% 19 2033 $5,592,24 2.10.% 20 2034 $5;709 67, 2095 $5.18.29.58 2.10% 22 2036 $5-052,00 2.10% 28 2037 $6 1 F6.99 2.10% 24 2088 $6,204.61 2039 $.6 334.90 zioy. 26 2040 M467.94 2.10.% 27. 2042 $6,742.44 2.10% 29 2043 $604,03 2.10% 30 2044 $7f,028.60 2.10% 31 2045 PiV.6t20 2.10% 32: 2046 $7,326.90 2.10%38 2047 $7-;480.76 2.10% 34 2048- $7,637 86 1210% 35 2049 $7,798.25 2,10% 36 2650 $7,962,02 2.10% 37 .2051 $8,129.22 2.10% 38 2052 $8,299,93 2..10% 39 2053 $8,474.23 % 2:10% 40 2054 $8,652.19 2.10% 41 2055 '.. . . .... . ... . 2056 ..... $9,019,40 43 2057 $9,208.81 2.10% 44 2058 $9,402.19 2.10%. 45 2059 $9,599.64 2.10% 46 2060 $9,801.23 2.10% 47 2061 $10j007.06 2.10% 48 :2662 $10,217.20 2.1651. 49. 10,14 H I C C TO SALE AND PURCHASE AGREEMENT RE' PURCHASE AGREEMENT This Agreement is made and entered into effective as of the day of , 2016, by and between the Eagan Economic Development Authority, a public body corporate and politic and a political subdivision of the State of Minnesota (the "EDA") and JR Hospitality II, LLC, a Minnesota limited liability company, and its assigns (the "Developer"). , WHEREAS, the EDA and Developer have entered into a Purchase Agreement, dated , 2016 (the "Contract") relating to the sale and purchase of a certain tract or parcel of land situated in Dakota County, Minnesota, described as follows: Lot 1, Block 1, Cedar Grove Parkway 4th Addition (the "Property"); and WHEREAS, contemporaneously herewith the EDA has conveyed to Developer the Property. NOW, THEREFORE, in further consideration of this conveyance and in furtherance of the understanding between the parties, Developer hereby grants to the EDA the following option to repurchase the Property; Section 1. REPURCHASE: If Developer has not commenced construction thereof within forty-five (45) days from the date of this Agreement (the "Construction Commencement Deadline"), then the EDA shall have the option of repurchasing the Property for a purchase price of Nine Hundred Eighty-one Thousand Three and No/100 Dollars ($981,003.00) less $49,170.60 (commission paid by EDA) less the amount of any liens on the Property resulting from action by the Developer unless the Construction Commencement Deadline is extended by mutual agreement of the parties. "Commenced Construction" shall mean the installation of footings and foundation for the construction of a hotel. The EDA may exercise this option to repurchase by giving written notice to Developer within thirty (30) days after the Construction Commencement Deadline. Upon receiving the repurchase price in cash from the EDA (which amount must be paid within thirty (30) days after the notice of option exercise is given), Developer shall convey to the EDA by limited warranty deed the Property free and clear of any liens and encumbrances placed or suffered thereon by Developer, which liens and encumbrances shall be paid off by Developer on or before closing. Section 2. RELEASE: If written notice of '6ption exercise is not timely given to Developer or if Developer has Commenced Construction within the required period, this option to repurchase shall terminate absolutely and the EDA shall upon Developer's request, execute and deliver to Developer a release of this repurchase right in recordable form. Section 3. NOTICE: All notices, demands and requires required or permitted to be given under this Agreement must be in writing and shall be deemed to have been properly given or served either by personal delivery or by depositing the same in the United States Mail, addressed to the EDA or to Developer, as the case may be, prepaid and registered or certified mail, return receipt requested, at the following addresses: If to Seller: Eagan Economic Development Authority 3830 Pilot Knob Road Eagan, Minnesota 55122 with a copy to: Dougherty, Molenda, S.olfest, Hills & Bauer P.A. 14985 Glazier Avenue, Suite 525 Apple Valley, Minnesota 55124 Attn: Robert B. Bauer If to Buyer: JR Hospitality II, LLC 1416 Horseshoe Circle Eagan, MN 55122 with a copy to: Tammy J. Schemmel, Esq. Barna, Guzy and Steffen, Ltd. 200 Coon Rapids Blvd. NW, #400 Coon Rapids, MN 55433 And a copy to: Jamie L. Cox, Esq. Vice Cox & Townsend PLLC 2307 River Rd., Suite 203 Louisville, KY 40206 Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given tshall be deemed to be receipt of the notice, demand or request. Either party shall have the right from time to time and at any time upon at least ten (10) days' written notice thereof, to change their respective addresses and each shall have the right to specify as its address any other address within the United States of America. Section 4. MISCELLANEOUS. The provisions of this Agreement are intended in each instance to be binding upon and inure to the benefit of the signatories hereto, to the successors and assigns of Developer who become owners of the Property and to the successors and assigns of the EDA to whom the right, title and interest herein is specifically assigned. Either party may record this instrument in the appropriate real estate records. 2 IN WITNESS WHEREOF, the parties have caused this instrument to be executed as of the date and year first above written. Repurchase Agreement Developer's Signature Page DEVELOPER: JR Hospitality II, LLC, a Minnesota limited Liability company By: Its. STATE OF Ahfieso+- ) )ss. COUNTY OFAg, ) The foregoing instrument was acknowledged before me this -2�day of JwL,'jC , 2016, by 2"� , the V-�? of JR Hospitality II, LL(f, a Minnesota limited liability company, on behalf of the limited liability company. TAMMY J SCHEMMEL NOTARY PUBLIC • MINNESOTA MY COMMISSION EXPIRES 01131117 �A�eX - � � No ary PVblic Repurchase Agreement FDA's Signature Page EDA: Eagan Economic Development Authority, a public body corporate and politic and a political subdivision of the State of Minnesota Mike Maguire Its: President David M. Osberg Its: Executive Director STATE OF MINNESOTA) )ss. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me, a notary public, this day of , 2016, by Mike Maguire and David M. Osberg, President and Executive Director of the Eagan Economic Development Authority, a public body corporate and politic and a political subdivision of the State of Minnesota, on behalf of the public body. THIS INSTRUMENT DRAFTED BY: Notary Public Dougherty, Molenda, Solfest, Hills & Bauer P.A. 14985 Glazier Avenue, Suite 525 Apple Valley, MN 55124 (952) 432-3136 L,