Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
01-16-2016 CCP
The following is the agenda for the regular meeting of the City Council to be held at 7:00 PM on Monday, January 11, 2016 in the City Council Chambers, City Hall, 590 40th Avenue N.E., Columbia Heights, Minnesota. The City of Columbia Heights does not discriminate on the basis of disability in the admission or access to, or treatment or employment in, its services, programs, or activities. Upon request, accommodation will be provided to allow individuals with disabilities to participate in all City of Columbia Heights' services, programs, and activities. Auxiliary aids for disabled persons are available upon request when the request is made at least 96 hours in advance. Please call the City Clerk at 763 - 706 -3611, to make arrangements. (TDD /706 -3692 for deaf or hearing impaired only.) 1. CALL TO ORDER 2. ROLL CALL 3. INVOCATION Invocation provided by Dan Thompson, Heights Church 4. PLEDGE OF ALLEGIANCE 5. ADDITIONS /DELETIONS TO MEETING AGENDA (The Council, upon majority vote of its members, may make additions and deletions to the agenda. These may be items brought to the attention of the Council under the Citizen Forum or items submitted after the agenda preparation deadline.) 6. PROCLAMATIONS, PRESENTATIONS, RECOGNITION, ANNOUNCEMENTS, GUESTS pg 6 1. Resolution Accepting a Donation from Northeast Bank for the New City Library MOTION: Move to waive the reading of Resolution 2016 -05, there being ample copies available to the public. MOTION: Move to adopt Resolution 2016 -05, accepting certain donations received by the City of Columbia Heights from Northeast Bank. 2. Barb Kondrick and Bri Belanger announcement regarding winter reading programs at the library 3. Presentation of Heart Safe Community Proclamation pg 9 7. CONSENT AGENDA (These items are considered to be routine by the City Council and will be enacted as part of the Consent Agenda by one motion. Items removed from consent agenda approval will be taken up as the next order of business.) 01 -11 -2016 Mayor COLUMBIA Gary L. Peterson CH HEIGHTS Robertlm Williams Robert A. Willia Bruce Nawrocki City of Columbia Heights Donna Schmitt John Murzyn, Jr. 590 40'h Avenue NE, Columbia Heights, MN 55421 -3878 (763) 706 -3600 TDD (763) 706 -3692 City Manager Visit our website at: www.columbiaheightsmn.gov Walter R. Fehst The following is the agenda for the regular meeting of the City Council to be held at 7:00 PM on Monday, January 11, 2016 in the City Council Chambers, City Hall, 590 40th Avenue N.E., Columbia Heights, Minnesota. The City of Columbia Heights does not discriminate on the basis of disability in the admission or access to, or treatment or employment in, its services, programs, or activities. Upon request, accommodation will be provided to allow individuals with disabilities to participate in all City of Columbia Heights' services, programs, and activities. Auxiliary aids for disabled persons are available upon request when the request is made at least 96 hours in advance. Please call the City Clerk at 763 - 706 -3611, to make arrangements. (TDD /706 -3692 for deaf or hearing impaired only.) 1. CALL TO ORDER 2. ROLL CALL 3. INVOCATION Invocation provided by Dan Thompson, Heights Church 4. PLEDGE OF ALLEGIANCE 5. ADDITIONS /DELETIONS TO MEETING AGENDA (The Council, upon majority vote of its members, may make additions and deletions to the agenda. These may be items brought to the attention of the Council under the Citizen Forum or items submitted after the agenda preparation deadline.) 6. PROCLAMATIONS, PRESENTATIONS, RECOGNITION, ANNOUNCEMENTS, GUESTS pg 6 1. Resolution Accepting a Donation from Northeast Bank for the New City Library MOTION: Move to waive the reading of Resolution 2016 -05, there being ample copies available to the public. MOTION: Move to adopt Resolution 2016 -05, accepting certain donations received by the City of Columbia Heights from Northeast Bank. 2. Barb Kondrick and Bri Belanger announcement regarding winter reading programs at the library 3. Presentation of Heart Safe Community Proclamation pg 9 7. CONSENT AGENDA (These items are considered to be routine by the City Council and will be enacted as part of the Consent Agenda by one motion. Items removed from consent agenda approval will be taken up as the next order of business.) 01 -11 -2016 City of Columbia Heights City Council Agenda January 11, 2016 Page 2 A. Approve Minutes of the City Council p 10 MOTION: Move to approve the minutes of the City Council meeting of December 14, 2015 B. Accept Board and Commission Meeting Minutes p 35 MOTION: Move to accept the minutes from the Public Arts Commission meeting from Nov. 10, 2015. MOTION: Move to accept the minutes from the Public Arts Commission meeting from December 9, 2015. MOTION: Move to accept the minutes from the EDA meeting from December 7, 2015. MOTION: Move to accept the minutes from the Traffic Commission meeting from December 7, 2015. MOTION: Move to review the unapproved minutes from the Traffic Commission meeting of Jan. 4, 2016 MOTION: Move to accept the minutes from the Library Board meeting from December 2, 2015. C. Authorization to Purchase Police Vehicles p 53 MOTION: Move to authorize the purchase of two 2016 Ford Police Interceptor Utility vehicles and one 2016 Chevy Impala unmarked vehicle under the State of Minnesota bid, with funding to come from 431.42100.5150, in the amount of $77,976.28 and that the Mayor and City Manager are authorized to enter into a contract for same. These vehicles will be used as marked patrol cars and unmarked police vehicles. MOTION: Move to authorize the Police Chief to expend up to $61,216.00 to set up and outfit two marked patrol cars and an unmarked vehicle. D. Approve Change Order No. 1 For Concrete Alley Construction, City Project No. 1402 55 MOTION: Move to approve Contract Change Order No. 1 for the 2015 Concrete Alley Construction, Project 1402, to New Look Contracting, Inc. of Rogers, Minnesota in the amount of $49,584.96 for a new contract amount of $631,920.71. p 59 E. Final Compensating Change Order and Final Payment for Miscellaneous Concrete, Project No. 1500 MOTION: Move to approve the final compensating change order and accept the work for 2015 Miscellaneous Concrete Repairs and Installations, City Project No. 1500, and authorize final payment of $53,885.58 to New Look Contracting Inc. of Rogers, MN. F. Accept Bids and Award Contract for Library Shelving p 63 MOTION: Move to accept bids and award a contract for FF &E — Shelving, Canopy Tops and End Panels for the new City Library, City Project No. 1410, to Embury LTD based upon their low, qualified, responsible bid in the amount of $94,909.30 from Fund 450 - 51410 -5185; and, furthermore, to authorize the Mayor and City Manager to enter into a contract for the same. G. Approve Change Orders for Library Construction Package CP -2, City Project No. 1410 p 65 MOTION: Move to approve contract Change Order Nos. 1, 2 and 3 for Library Bid Package CP -2, Project 1410, to Ebert Construction for a deduct of $1,758 for a new contract amount of $5,110,842. MOTION: Move to approve contract Change Order Nos. 1 and 2 for Library Bid Package CP -2, Project 1410, to Cool Air Mechanical totaling $132,586 for a new contract amount of $947,856. MOTION: Move to approve contract Change Order Nos. 1 and 2 for Library Bid Package CP -2, Project 1410, to Peoples Electric totaling $44,153 for a new contract amount of $794,653. E City of Columbia Heights City Council Agenda January 11, 2016 Page 3 H. Approval of Power Purchase Agreements to Add Solar Power at four City Buildings pg 67 MOTION: Move to accept the Solar Engineering Study prepared by Apex Engineering of Anoka and authorize the preparation of a 10 year PPA for adding solar power at Top Valu 1; and the preparation of a 15 year PPA at the Public Safety Building, the Municipal Service Center, and the new Library. MOTION: Move to approve Power Purchase Agreements to add solar power to Top Valu 1 (4950 Central Avenue); Public Safety Building; Municipal Service Center; and the new City Library. Public Works Blanket Orders for 2016 Purchases pg 180 MOTION: Move for approval to authorize staff to process blanket purchase orders in an amount not to exceed the 2016 budget amounts for: • De -icing salt for salt /sanding operations purchased off the State of Minnesota Purchasing Contract. • Fuel (unleaded and diesel) for City vehicles from the State of Minnesota Purchasing Contract and the Anoka County Cooperative Agreement. • Bituminous asphalt for patching /paving City streets and alleys from Commercial Asphalt, or City of St. Paul, or T.A. Schifsky & Son's. • Curb stop and service repairs, for delinquent accounts and foreclosed properties. J. Adopt Resolution 2016 -01 establishing Property Maintenance Code fees pg 181 MOTION: Move to waive the reading of Resolution 2016 -01, there being ample copies available to the public. MOTION: Move to adopt Resolution 2016 -01, being a Resolution establishing Property Maintenance Code fees as of February 1, 2016. K. Appointments to Columbia Heights Volunteer Firefighters Relief Association board of trustees for 2015. pg 185 MOTION: Move to appoint Councilmember John Murzyn, Jr. and City Manager Walt Fehst to the Columbia Heights Volunteer Firefighters Relief Association Board of Trustees for 2016. L. Adopt Resolution 2016 -02 Designating Official Depositories for the City of Columbia Heights pg 186 MOTION: Move to waive the reading of Resolution 2016 -02, there being ample copies available to the public. MOTION: Move to adopt Resolution 2016 -02, being a resolution designating official depositories for the City of Columbia Heights. pg 189 M. Adopt Resolution 2016 -03 to Accept Certain Donations Received by the City of Columbia Heights MOTION: Move to waive the reading of Resolution 2016 -03 there being ample copies available to the public. MOTION: Move to adopt Resolution 2016 -03 being a resolution to accept certain donations received by the City of Columbia Heights. N. Designation of Legal Newspaper for 2016. pg 192 MOTION: to designate the Sun Focus News as the City of Columbia Heights official legal newspaper for 2016. City of Columbia Heights City Council Agenda January 11, 2016 Page 4 O. Appointment of Council Liaisons and Staff Assignments to City Boards & Commissions and External Boards. MOTION: To approve the recommended listing of Council /Staff Assignments. pg 194 P. Resolution Authorizing the Submittal of the 2016 Community Development Block Grant Funding Application pg 197 MOTION: Move to waive the reading of Resolution 2016 -06, there being ample copies available to the public. MOTION: Move to adopt Resolution 2016 -06, authorizing the submittal of the 2016 Community Development Block Grant Funding Application for the development of a park and recreation building at the City of Peace Park, 1305 Circle Terrace Boulevard NE. Q. Resolution Authorizing the Execution of the Development Contract for Plat of Huset Park Senior Living pg 215 MOTION: Move to waive the reading of Resolution 2016 -07, there being ample copies available to the public. MOTION: Move to adopt Resolution 2016 -07, authorizing the execution of the Development Contract for Plat of Huset Park Senior Living, Anoka County MN, between the City of Columbia Heights and Columbia Heights Leased Housing Associates I, LLLP. R. Resolution Approving the Final Plat for Huset Park Senior Living pg 243 MOTION: Move to waive the reading of Resolution 2016 -04, there being ample copies available to the public. MOTION: Move to adopt Resolution 2016 -04, approving the Final Plat for Huset Park Senior Living S. Resolution 2016 -09 restricting parking on the south side of lookout place between Bakken Boulevard and 5t" Street and 30 feet from each corner on the north side of Lookout Place between Bakken 255 Boulevard and 5t" Street. pg MOTION: Move to waive the reading of Resolution 2016 -09, there being ample copies available to the public. MOTION: Move to adopt Resolution 2016 -09, being a resolution restricting parking on the south side of Lookout Place and 30' from each corner on the north side of Lookout Place between Bakken Boulevard and 5t" Street, based on the recommendation of the Traffic Commission. T. Adopt Ordinance 1624, a Cable Television Franchise Ordinance for Qwest Broadband Services DBA Centurylink. pg 258 MOTION: Move to waive the reading of Ordinance 1624, there being ample copies available to the public. MOTION: Move to adopt Ordinance 1624, being a Cable Television Franchise Ordinance granting a Franchise to Qwest Broadband Services Inc., DBA Centurylink to construct, operate and maintain a cable system in the City of Columbia Heights, Minnesota. MOTION: Move to approve the summary for publication for Ordinance 1624, being a Cable Television Franchise Ordinance granting a Franchise to Qwest Broadband Services Inc., DBA Centurylink to construct, operate and maintain a cable system in the City of Columbia Heights, Minnesota. City of Columbia Heights City Council Agenda January 11, 2016 Page 5 U. Approve Business License Applications MOTION: Move to approve the items as listed on the business license agenda for January 11, 2016. pg 323 V. Payment of Bills MOTION: Move that in accordance with Minnesota Statute 412.271, subd. 8, the City Council has pg 326 received the list of claims paid covering check number 159437 through 159795 in the amount of $1,933,107.96. MOTION: Move to approve the Consent Agenda items. 8. PUBLIC HEARINGS 9. ITEMS FOR CONSIDERATION A. Other Ordinances and Resolutions B. Bid Considerations C. New Business and Reports 10. ADMINISTRATIVE REPORTS Report of the City Manager Report of the City Attorney 11. CITIZENS FORUM At this time, citizens have an opportunity to discuss with the Council items not on the regular agenda. Citizens are requested to limit their comments to five minutes. Anyone who would like to speak shall state his /her name and address for the record. 12. ADJOURNMENT Walt Fehst, City Manager 5 CH COLUMBIA HEIGHTS AGENDA SECTION PROCLAMATIONS ITEM NO. 6 -1 MEETING DATE JANUARY 11, 2016 CITY OF COLUMBIA HEIGHTS - COUNCIL LETTER ITEM: I Resolution Accepting Donation from Northeast Bank for the New City Library DEPARTMENT: Community Development CITY MANAGER'S APPROVAL: BY /DATE: Joe Hogeboom, January 6, 2016 BY /DATE: BACKGROUND: The Walter C. Rasmussen — Northeast Bank Foundation has approved a donation to the City of Columbia Heights for the benefit of the new Public Library. The donation is a five -year commitment of $3,000 annually. The first installment will be granted in 2016. In recognition of this donation, a plaque will be placed within the new Library near the central fireplace /lounge area recognizing Northeast Bank for its generosity. Mr. Tom Beck, President and CEO of Northeast Bank, will be formally present the donation to the City Council at the January 11 meeting. RECOMMENDED MOTION(S): Motion: Move to waive the reading of Resolution No. 2015 -05, there being ample copies available to the public. Motion: Move to adopt Resolution 2016 -05, accepting certain donations received by the City of Columbia Heights from Northeast Bank. ATTACHMENTS: Resolution 2015 -05 (1 page) Letter Northeast Bank, dated October 9, 2016 (1 page) 6 Resolution Accepting Donation from Northeast Bank for the New City Library RESOLUTION NO. 2016 -05 A resolution of the City Council for the City of Columbia Heights, Minnesota, RESOLUTION ACCEPTING CERTAIN DONATIONS RECEIVED BY THE CITY OF COLUMBIA HEIGHTS FROM NORTHEAST BANK. BE IT RESOLVED By the City Council ( "Council ") of the City of Columbia Heights, Minnesota ( "City ") as follows: Section 1. Recitals. 1.01. The City of Columbia Heights has received the following donation: $15,000 (in 5 yearly installments of $3,000) Walter Rasmussen — Northeast Bank Foundation For the benefit of the new Columbia Heights Public Library Now, therefore, in accordance with the foregoing, and all ordinances and regulations of the City of Columbia Heights, the City Council of the City of Columbia Heights makes the following: ORDER OF COUNCIL BE IT HEREBY RESOLVED by the City Council of the City of Columbia Heights, that the City of Columbia Heights accepts these donations, subject to the donor - prescribed terms listed. Passed this day of , 2016 Offered by: Seconded by: Roll Call: Gary L. Peterson, Mayor Attest: Katie Bruno, City Clerk /Council Secretary q1t Northeast WBank Strength of a Leader. Hand of a Friend. October 9, 2015 Mr. Joe Hogeboom City of Columbia Heights /Community Development Department 590 401h Avenue NE Columbia Heights, MN 55421 RE: Columbia Heights Public Library Corporate Donation Dear Mr. Hogeboom and Library Development Committee, 77 Broadway Street NE Minneapolis, MN 55413 Tel. 612- 379 -8811 Fax 612- 362 -3262 Northeast Bank is proud of its ongoing partnership with the City of Columbia Heights and the community at large. Since 1978, the Columbia Heights community has been an integral piece of Northeast Bank's growth and legacy. Relationships matter to us. In 2016, our address will be changing, but our commitment to the Columbia Heights community will remain the same. With this in mind, we would ask that the Columbia Heights Public Library Corporate Donation Committee accept a 5 -year commitment of $3,000 annually towards the naming of the Fireplace Lounge Area within the new facility. We join you in celebrating the success of this project and the wonderful asset it brings to the Columbia Heights community. Sincerely, X11- Belva H. Rasmussen Chair MEMBER FDIC Q EOJAL HOJS!NG LENDER Thomas M. Beck President /CEO COLUMBIA HEIGHTS' HEART SAFE COMMUNITY PROCLAMATION WHEREAS, the City of Columbia Heights, in the State of Minnesota, has always recognized the importance of AEDs and CPR as valuable assets in saving lives during sudden cardiac arrest; and WHEREAS, according to the Minnesota Department of Health, sudden cardiac arrest is the second leading cause of death in Minnesota and responsible for almost 20% of all deaths; and WHEREAS, the City of Columbia Heights places the highest value on our citizens, their families and friends, our city employees and local businesses, and everyone who chooses to visit this great city, the City is dedicated to providing the highest level of public safety. The goal of a Heart Safe Community is to make the community a safer place to live, work, and play by being prepared to reduce the number of deaths and disabilities associated with sudden cardiac arrest; and WHEREAS, the county of Anoka and Allina Health have certified Columbia Heights as a Minnesota Heart Safe Community for our concerted and proactive efforts to make AEDs more readily available in the community and to educate and train the public in sudden cardiac arrests, CPR, and AEDs. NOW, THEREFORE, BE IT RESOLVED, that I, Gary Peterson, MAYOR, on behalf of the City Council of the City of Columbia Heights and all the citizens of this community, do hereby proclaim Columbia Heights a Heart Safe Community as of January 1, 2016. Our commitment to a healthier, safer, and better community benefits the residents, employees, and visitors of Columbia Heights. As a Heart Safe Community, Columbia Heights hopes to increase not only awareness, but also the success rate and survival rate for those suffering from sudden cardiac arrest. Mayor Gary L. Peterson January 11, 2016 OFFICIAL PROCEEDINGS CITY OF COLUMBIA HEIGHTS CITY COUNCIL MEETING DECEMBER 14, 2015 The following are the minutes for the regular meeting of the City Council held at 7:00 PM on MONDAY December 14, 2015 in the City Council Chambers, City Hall, 590 40th Avenue N.E., Columbia Heights, Minnesota 1. CALL TO ORDER Mayor Peterson called the meeting to order at 7:00 p.m. 2. ROLL CALL Present: Mayor Peterson, Councilmembers Nawrocki, Schmitt, Williams and Murzyn, Jr. Also Present: Walt Fehst; City Manager, Jim Hoeft; City Attorney, Gary Gorman; Fire Chief, Scott Nadeau; Police Chief, Kevin Hansen; Public Works Director, Joseph Kloiber; Finance Director, Kelli Bourgeois; HR Director /Assistant to the City Manager; Katie Bruno; City Clerk /Council Secretary 3. INVOCATION Invocation provided by Jin Kim, Church of All Nations Pastor Kim thanked the Police Department for their proactive measures in developing a strategic plan for policing efforts in the city. Mayor Peterson expressed gratitude to the Ministerial Association. 4. PLEDGE OF ALLEGIANCE 5. ADDITIONS /DELETIONS TO MEETING AGENDA (The Council, upon majority vote of its members, may make additions and deletions to the agenda. These may be items brought to the attention of the Council under the Citizen Forum or items submitted after the agenda preparation deadline.) 6. PROCLAMATIONS, PRESENTATIONS, RECOGNITION, ANNOUNCEMENTS, GUESTS 7. CONSENT AGENDA (These items are considered to be routine by the City Council and will be enacted as part of the Consent Agenda by one motion. Items removed from consent agenda approval will be taken up as the next order of business.) A. Approve Minutes of the City Council MOTION: Move to approve the minutes of the City Council meeting of November 23, 2015 MOTION: Move to approve the minutes of the City Council Work Session of December 7, 2015 C. Consideration of canceling the City Council meeting scheduled for December 28, 2015. MOTION: Move to waive the reading of Resolution No. 2015 -96, there being ample copies available to the public. MOTION: Move to adopt Resolution 2015 -96, being a Resolution canceling the City Council meeting scheduled for December 28, 2015. D. Approve Volunteer Firefighter Relief Association Bylaw Change *Removed for discussion E. Approve Transfer of Funds from General Fund to Fire Department Budget MOTION: Move to approve the transfer of $24,981.75 from the General Fund to the Fire Department budget. F. Authorize Mayor and City Manager to Enter into Contract for Police Service with the City of Hilltop *Removed for discussion. G. Authorize School Liaison Officer Contract with Columbia Heights School District *Removed for discussion H. Approve Transfer of Funds MOTION: The $8,330 received from the Columbia Heights School District for various traffic direction and security details, and the $4,000 received from Anoka County as partial reimbursement for overtime for our officer assigned to the Anoka Hennepin Drug Task Force, and the $720 received from Anoka County as reimbursement for detox transports, and the $492.34 received from Coon Rapids for our participation in the Toward Zero Death traffic enforcement be transferred to line 1020, Overtime. The total is $13,542.34. I. Approve the extension of the fire service contract with the City of Hilltop. *Removed for discussion J. Adopt Resolution 2015 -99 accepting the Feasibility Report for Street Rehab Program Zones 2 and 3 and ordering the Public Improvement Hearing, City Project No. 1602. *Removed for discussion K. Adopt Resolution 2015 -100 accepting the Feasibility Report for 2016 MSA Rehab and ordering the Public Improvement Hearing, City Project No. 1605. *Removed for discussion L. Adopt Resolution 2015 -101 approving plans and specifications and ordering advertisement for bids for Stinson Boulevard Improvements. *Removed for discussion M. Resolution 2015 -102 designating "No Parking" on the west side of Stinson Boulevard from 37th Avenue NE to Silver Lane NE for the 2016 Street and Utility Improvement Project *Removed for discussion N. Adopt Resolution 2015 -103 being a Resolution to use an alternative method to disseminate Bids and Requests. *Removed for discussion O. Approve final compensating change order and final payment for miscellaneous concrete, Project 1400 MOTION: Move to approve the final compensating change order and accept the work for Miscellaneous Concrete, City Project No. 1400; and to authorize final payment of $15,918.75 to SpeckTacular Companies, Inc. of Elko, MN. P. Consideration to Re -Issue Rental License MOTION: Move to issue a rental- housing license to Jordan Gall to operate the rental property located at 3906 Tyler Street N.E. in that the provisions of the Property Maintenance Code have been complied with Q. Approve Business License Applications MOTION: Move to approve the items as listed on the business license agenda for December 14, 2015 R. Payment of Bills MOTION: Move that in accordance with Minnesota Statute 412.271, subd. 8, the City Council has ii received the list of claims paid covering check number 159178 through 159436 in the amount of $ 1,878,324.24. Councilmember Nawrocki requested that items D, F, G, I, J, K, L, M and N be removed from the Consent Agenda for discussion. Motion by Councilmember Williams, seconded by Councilmember Nawrocki to approve Consent Agenda items A, B, C, E, H, O, P, Q, and R. All Ayes, Motion Carried. Councilmember Nawrocki requested that the following items be removed from the Consent Agenda for discussion: D. Approve Volunteer Firefighter Relief Association Bylaw Change Fire Chief Gary Gorman explained Paid -on -Call Firefighters accrue an annual pension based on service months in a calendar year. If a firefighter leaves the Fire Department prior to accruing 60 months, their account is held for five years and then redistributed. We have had firefighters leave the Fire Department after only a few months of service. Their accounts, based on a few service months, will continue to earn minimal interest but is also charged fund maintenance fees that are distributed equally across all accounts. The State Auditor's Office has advised the Relief Association to add language to the bylaws that addresses this situation. The Relief Association Board of Trustees met and approved the proposed new language of Article IV, Section 4.6 of Appendix D. First Reading of the proposed language to the full membership was held on November 16, 2015. Second Reading and approval of the full membership was held November 23, 2015. Motion by Councilmember Williams, seconded by Councilmember Murzyn, Jr. to approve the addition of Article IV, Section 4.6 to Appendix D of the Columbia Heights Volunteer Firefighters Relief Association Bylaws. All Ayes, Motion Carried. F. Authorize Mayor and City Manager to Enter into Contract for Police Service with the City of Hilltop Councilmember Nawrocki questioned if fringe benefits are included in the contract. Police Chief Scott Nadeau explained he uses a formula to address service needs of the City of Hilltop, this formula allows us to be closer to adequately funded then we were in the past. Nadeau reported he anticipates additional expenses in 2018 because of the scheduled implementation of the encrypted radio system throughput Anoka County . City Manager Fehst reported he received compliments form the City Attorney for Hilltop for both the Police Chief and Fire Chief. Motion by Councilmember Williams, seconded by Councilmember Nawrocki to authorize the Mayor and the City Manager to enter into a Police Service Contract with the City of Hilltop starting January 1, 2016 and extending through December 31, 2018 at the rates specified in the contract. All Ayes, Motion Carried. G. Authorize School Liaison Officer Contract with Columbia Heights School District Police Chief Scott Nadeau reported we have had a liaison officer in the High School for a longtime, and since about 2007 we have had one in the Middle School. The School liaisons serve an essential role for the Police Department. The officers are compensated by the school district, based on an agreed upon formula. Motion by Councilmember Murzyn, Jr. seconded by Councilmember Williams to authorize the Mayor and Police Chief to enter into a Joint Powers agreement with Columbia Heights Public Schools for the provision of a Police School Liaison Officer program as stipulated in the Joint Powers Agreement for the period of January 1 through December 31, 2016. All Ayes, Motion Carried IN I. Approve the extension of the fire service contract with the City of Hilltop Fire Chief Gary Gorman explained the City has been using the current formula with the Hilltop contract since 2004. The contract for consideration is a three year contract; 2016 -2018. The City of Hilltop approved the contract at their December 7, 2015 meeting. Motion by Councilmember Murzyn, Jr. seconded by Councilmember Williams to authorize the Mayor and City Manager to enter into a three -year Fire and EMS service contract with the City of Hilltop starting January 1, 2016 and extending through December 31, 2018. All Ayes, Motion Carried. J. Adopt Resolution 2015 -99 accepting the Feasibility Report for Street Rehab Program Zones 2 and 3 and ordering the Public Improvement Hearing, City Project No. 1602 Public Works Director Kevin Hansen gave an overview of the proposed projects. In 2016 Zones 2 and 3 will be combined. The City uses three tools to evaluate roads; Structure testing, nondestructive testing, and an overall Condition Index. Two streets are proposed in the project; 41St Ave (Reservoir to Stinson; mill and overlay) and 43rd Ave. (Reservoir to Arthur; partial reconstruction.) Additionally as part of a Fridley program; a portion of 45th Ave between Main St and University Ave., this project has been delayed since 2012. Councilmember Nawrocki questioned if both the Fridley and Columbia Heights portions will be done in the same manner. Director Hansen stated they would be the same. Councilmember Williams commented that the recently constructed 44th Ave turned out well, and questioned how long the surface would have lasted without the mill and overlay. Hansen explained if roads are maintained in time, you can possibly get 25 -30 years of use. Councilmember Nawrocki commented that many of the roads proposed for construction are in good condition. Hansen noted that is why various analyses are completed. Motion by Councilmember Williams, seconded by Councilmember Schmitt to waive the reading of Resolution 2015 -99, there being ample copies available to the public. All Ayes, Motion Carried. Motion by Councilmember Williams, seconded by Councilmember Schmitt to adopt Resolution 2015 -99, being a resolution accepting the Feasibility Report for the Street Rehab Program Zones 2 and 3, City Project No. 1602, and ordering the Public Improvement Hearing beginning at6:45 PM on February 1, 2016. All Ayes, Motion Carried. K. Adopt Resolution 2015 -100 accepting the Feasibility Report for 2016 MSA Rehab and ordering the Public Improvement Hearing, City Project No. 1605. Public Works Director Kevin Hansen reported substantial work on state aid streets has not been done for about 25 years. For 2016 Jefferson Ave (from 40th to 44th ) is being recommended for improvements. Councilmember Nawrocki stated he thinks residents rates on state aid streets should be discounted due to increased traffic volume, as well as restricted parking. Hansen reported the council does take traffic counts into consideration, and in this instance, a 15% subsidy is given. Councilmember Nawrocki stated he would like to see the money received from the state be used towards improvements on those specific streets. Motion by Councilmember Williams, seconded by Councilmember Schmitt to waive the reading of Resolution 2015 -100, there being ample copies available to the public. All Ayes, Motion Carried. Motion by Councilmember Williams, seconded by Councilmember Schmitt to adopt Resolution 2015 -100, being a resolution accepting the Feasibility Report for 2016 MSA Rehab, City Project No. 1605, and ordering the Public Improvement Hearing beginning at 7:00 PM on March 7, 2016, All Ayes, Motion Carried. 13 L. Adopt Resolution 2015 -101 approving plans and specifications and ordering advertisement for bids for Stinson Boulevard Improvements. Public Works Director Kevin Hansen reported this is a joint project with the City of St. Anthony; with a cooperative agreement approved in June 2015. Councilmember Nawrocki expressed concern with accessibility for the residents of the senior facility on Stinson Blvd. Director Hansen stated they may be able to grant temporary access via McKinley, or 40tH Motion by Councilmember Williams, seconded by Councilmember Schmitt to waive the reading of Resolution 2015 -101, there being ample copies available to the public. All Ayes, Motion Carried. Motion by Councilmember Williams, seconded by Councilmember Schmitt to adopt Resolution 2015 -101 approving the plans and specifications and ordering Advertisement for Bids for Stinson Boulevard Improvements, City Project 1508. All Ayes, Motion Carried. M. Resolution 2015 -102 designating "No Parking" on the west side of Stinson Boulevard from 37th Avenue NE to Silver Lane NE for the 2016 Street and Utility Improvement Project Public Works Director Kevin Hansen reported that the three lane roadway does not provide adequate width for parking on both sides of the street, and is currently signed for no- parking. In order to expend Municipal State Aid funds on the construction, a No Parking Resolution must be designated by the City Council. Motion by Councilmember Williams, seconded by Councilmember Schmitt to waive the reading of Resolution 2015 -102, there being ample copies available to the public. All Ayes, Motion Carried. Motion by Councilmember Williams, seconded by Councilmember Schmitt to adopt Resolution 2015 -102 designating "No Parking" on the west side of Stinson Boulevard from 37th Avenue NE to Silver Lane NE for the 2016 Street and Utility Improvement project. All Ayes, Motion Carried, N. Adopt Resolution 2015 -103 being a Resolution to use an alternative method to disseminate Bids and Requests Public Works Director Kevin Hansen explained that statutory requirements now allow cities to use their website or industry trade journals as an alternative to publicize solicitations of bids, requests for information, and requests for proposals. Staff recommends using the City's website as an alternative means to disseminate solicitations of bids, requests for information, and requests for proposals for construction and maintenance projects. For the first six months after this designation, the City will continue to publish solicitations of bids, requests for information, and requests for proposals in the Sun Focus newspaper and the publication will also indicate where to find the designated alternative method. Councilmember Nawrocki stated he would prefer we continue to advertise in the paper, noting many people may not have access to a computer. Councilmember Nawrocki shared his opinion that City Hall doesn't always get important information out to the public. Mayor Peterson commented that the City makes information available, noting questions can always be addressed to council or city staff. Motion by Councilmember Williams, seconded by Councilmember Schmitt to waive the reading of Resolution 2015 -103, there being copies available to the public. All Ayes, Motion Carried. Motion by Councilmember Williams, seconded by Councilmember Schmitt to adopt Resolution 2015 -103 being a resolution to use on alternative method to disseminate bids and request. 4 Ayes, 1 Nay, Motion Carried. 8. PUBLIC HEARINGS 14 A. First Reading of Ordinance 1624, a Cable Television Franchise Ordinance Mike Bradley; Bradley, Hagen & Gullikson reported Century Link approached the City earlier in the year seeking a franchise. The process outlined by statute was followed, and staff has negotiated a cable franchise. Mr. Bradley went over some of the key points of the agreement including a complete equitable build -out, and additional build -out based on market success. PEG commitments are; 4 access channels, in HD if supported, video on demand. The franchise agreement has a five year term. Councilmember Nawrocki asked if the channels will remain the same as with Comcast. Mr. Bradley stated they will for the most part. Councilmember Nawrocki stated he has experienced less than satisfactory customer service with Century Link for his telephone service, and expressed concern with their customer service requirements for cable television. Mike Bradley noted Exhibit A addresses customer service requirements. Councilmember Schmitt noted that the middle school is not located within the City. Mr. Bradley noted that it would not be covered under the franchise agreement if it is not in Columbia Heights. City Manager Walt Fehst asked when Century Link will be available to residents. Patrick Haggerty, representing Century Link explained they will start contacting residents who initially qualify following the adoption of the ordinance in January. Mr. Haggerty stated they will follow up with direct mail and field service representatives. Councilmember Nawrocki questioned how their rates will compare to Comcast. Mr. Haggerty stated they will be competitive. Motion by Councilmember Williams, seconded by Councilmember Murzyn, Jr. to close the public hearing and to waive the reading of Ordinance 1624, a Cable Television Franchise Ordinance, there being ample copies available to the public. All Ayes, Motion Carried. Motion by Councilmember Williams, seconded by Councilmember Murzyn, Jr. to establish the second reading of Ordinance 1624, for Monday, January 11, 2016, at approximately 7:00 p.m. in the City of Columbia Heights Council Chambers. All Ayes, Motion Carried. B. Resolution 2015 -97, adopting a budget for the year 2016, setting the city levy, approving the HRA levy, and approving a tax rate increase. City Manager Walt Fehst reported the levy presented this fall was the lowest in ten years. Because of the unknown subsidy in fiscal disparities, projections were $453,000 less than expected. This resulted in increases to taxpayers as high as 15 -16 %. Manager Fehst noted the council met a worksession earlier in the month to address the deficit. Reductions and deferments in the budget were recommended, as well as the use of some LGA funds which have been set aside for unforeseen events. Fehst stated that if the council does not take action on the item tonight, residents could be paying up to a 16% increase in their taxes. Councilmember Murzyn, Jr. suggested trading in two backhoes instead of one as planned. Murzyn, Jr. has been talking to other communities, and they have indicated that one backhoe is adequate. Finance Director Joe Kloiber explained that adopting the budget resolution sets the limits on what can be spent. By itself, it is not an action to trade -in or auction equipment. That would require an additional action by the Council. For example, at the point at which the Council awards the purchase of a new backhoe to a particular vendor, the Council could act to address the matter of trade -in or auction existing equipment. Councilmember Nawrocki stated if staff is not reduced, there is no change in expenses. Director Kloiber clarified that of the $453,000; $109,000 are one time deferrals. Councilmember Nawrocki questioned the difference in the total tax lev from the preliminary 15 adopted budget. Director Kloiber noted it is an approximate 4.2% reduction. Motion by Councilmember Williams, seconded by Councilmember Murzyn, Jr. to waive the reading of Resolution 2015 -97, there being ample copies available to the public. All Ayes, Motion Carried. Motion by Councilmember Williams, seconded by Councilmember Murzyn, Jr. to close the public comment and adopt Resolution 2015 -97, being a resolution adopting a budget for the year 2016, setting the city levy, approving the HRA levy, and approving a tax rate increase. All Ayes, Motion Carried. 9. ITEMS FOR CONSIDERATION A. Other Ordinances and Resolutions 1. Utility Rate Recommendations Director of Public Works Kevin Hansen reported Utility Rate Studies were done in 2003 and in 2007, an update was done in 2010. These studies resulted in a 5 year plan; expiring in 2014, rates were kept flat in 2015. The water, sanitary sewer and refuse costs are all influenced by contracts, beyond our control. The following recommendations are made: Average Family Utility Bill (increase): 2015 0.00 %, 2016 3.00 %, 2017 6.20%x, 2018 3.50 %, 2019 3.50 %. Average: 3.24 %. Councilmember Nawrocki questioned what an average utility bill would be? Director Hansen reported in 2015 it would be $207.96. In 2016, it would be $214.00 (quarterly). Motion by Councilmember Williams, seconded by Councilmember Murzyn, Jr. to waive the reading of Resolution 2015 -98, there being ample copies available to the public. All Ayes, Motion Carried. Motion by Councilmember Williams, seconded by Councilmember Murzyn, Jr. to adopt Resolution 2015- 98 which establishes utility rates for Water Service, Sanitary Sewer Service, Storm Sewer and Refuse for 2016 through 2019. All Ayes, Motion Carried. 2. Request Approval of Emergency Ordinance No. 1625 /Establishing a Moratorium Regulating the Residency Location of Predatory Offenders Within the City Police Chief Scott Nadeau reported there are some concerns with the number of level 3 sex offenders in the cities of Columbia Heights and Hilltop. Currently there are five registered offenders in Columbia Heights, while Anoka County has eleven. Nadeau reported that Hennepin County and Brooklyn Center have adopted moratoriums. A moratorium would allow City Staff and the City Attorney an opportunity to study the issue and bring an informed recommendation to the council. It was reported that the City of Hilltop has recently adopted a similar moratorium. Councilmember Nawrocki questioned if this would limit any new residents moving in. City Attorney Jim Hoeft explained a moratorium would severely limit allowing, noting there would be permissible circumstances. Councilmember Schmitt questioned the process for voting on an Emergency Ordinance; citing Chapter 2, Section 20 - ... "the emergency is defined or declared in a preamble thereto, and separately voted upon by and agreed to by at least four members of the council..." City Attorney Hoeft explained that when the City Charter was produced, interim ordinances did not exist. The Charter allowed for referendum, requiring two - readings of an ordinance in order to allow time for residents to determine if they would petition for a referendum. If something was deemed an Emergency, it was deemed as a way to circumvent referendums. Interim ordinance moratoriums are temporary transactions, and not subject to referendum, taking effect immediately. Councilmember Schmitt suggested the Charter be updated to reflect the Interim ordinances. 16 Motion by Councilmember Williams, seconded by Councilmember Nawrocki to waive the reading of Emergency Ordinance No. 1625, being an ordinance establishing a moratorium regulating the residency location of predatory offenders within the city, there being ample copies available to the public. All Ayes, Motion Carried. Motion by Councilmember Williams, seconded by Councilmember Murzyn, Jr. to adopt Emergency Ordinance No. 1625, being an ordinance establishing a moratorium regulating the residency location of predatory offenders within the city. All Ayes, Motion Carried. B. Bid Considerations 1. Adopt Resolution 2015 -104 being a resolution accepting bids and awarding the contract for 2015 Sanitary Sewer Lining, City Project No. 1504 Director of Public Works Kevin Hansen gave an overview of the project; noting six bids were received. Bids ranged from $135,439.25 to $183,606.75. Motion by Councilmember Murzyn, Jr., seconded by Councilmember Williams to waive the reading of Resolution 2015 -104, there being ample copies available to the public. All Ayes, Motion Carried. Motion by Councilmember Murzyn, Jr., seconded by Councilmember Williams to adopt Resolution 2015- 104, being a resolution accepting bids and awarding the contract for 2015 Sanitary Sewer Lining, City Project No. 1504 to Visu -Sewer of Pewaukee, Wisconsin based upon their low, qualified, responsible base bid in the amount of $97,414.25 and accepting Alternate 1 in the amount of $38,025 for a total contract award of $135,439.25, with funds to be appropriated from Fund 652 -51504 -5185; and, furthermore, to authorize the Mayor and City Manager to enter into a contract for the same. All Ayes, Motion Carried. 2. Accept proposals and award contract for Water Tower Rehab Engineering Services Director of Public Works Kevin Hansen gave an overview of the project; noting the water tower was last coated in 1996. In 2008 structural defects were noted. RFPs were prepared; four bids were received, ranging from $42,605 - $49,524. Motion by Councilmember Murzyn, Jr., seconded by Councilmember Williams to award Engineering Services for the Water Tower Rehab, Project 1507, to the firm of Bolton & Menk based upon their proposal dated November 13, 2015 for a lump sum fee of $43,000, plus reimbursables, appropriated from Fund 651 -51507 -3050. All Ayes, Motion Carried. 10. ADMINISTRATIVE REPORTS Report of the City Manager City Manager Walt Fehst reported progress continues on the new library. Fehst wished council and staff a Merry Christmas, and thanked them for a good year. Councilmember Nawrocki reported he attended a meeting for the North Star Rail Committee, he noted rides are subsidized $17 -$18 per rider per way. Councilmember Nawrocki commented again that the date and location of the Friends of the Library meetings are not being posted on the City's cable channels. Councilmember Nawrocki reported the Public Arts Commissioners have submitted a resignation letter, and questioned the next steps. Manager Fehst stated he understands that the commission will continue to work together, no longer affiliated with the City. 17 Councilmember Schmitt commented that she has served as the liaison for the Arts Commission, and reported they have a lot of good ideas to pursue. Schmitt reported that the group intends to be very active in the community. Councilmember Nawrocki commented that he is not in agreement with the new City Hall hours of 8:00 -4:30, as he would like our hours to be more accommodating to residents. Councilmember Nawrocki recommended that a plaque be erected in the new library thanking the tax payers of Columbia Heights for their large monetary donation towards the library project. City Manager Walt Fehst suggested brining that idea up to the Library Board. Councilmember Nawrocki extended Season's Greetings to everyone. Report of the City Attorney Mr. Hoeft wished Happy Holidays to everyone. 11. CITIZENS FORUM At this time, citizens have an opportunity to discuss with the Council items not on the regular agenda. Citizens are requested to limit their comments to five minutes. Anyone who would like to speak shall state his /her name and address for the record. Frost Simula —1700 49th Ave NE commented on the proposed business development at 47th And Central Ave, indicating he would like to see a bank built instead of a jiffy lube. Mayor Peterson thanked Kassie Peterman from the Sun Focus for her dedicated service, and reminded all to remember our servicemen and women. The Mayor wished all Merry Christmas, Happy Hanukah, Happy Kwanza and Happy Holidays to all. 12. ADJOURNMENT Meeting adjourned at 9:53 p.m. R spectively Submitted, Katie Bruno, Council Secretary /City Clerk RESOLUTION NO. 2015 -96 BEING A RESOLUTION CANCELING THE CITY OF COLUMBIA HEIGHTS REGULAR CITY COUNCIL MEETING SCHEDULED FOR MONDAY DECEMBER 28,2015 WHEREAS: The City of Columbia Heights has historically cancelled the second meeting in December; and WHEREAS: The City Council has agreed to cancel the regular Council meeting scheduled for Monday, December 28, 2015; NOW, THEREFORE, BE IT RESOLVED, that all interested parties be advised of this change. 18 RESOLUTION NO. 2015 -97 A resolution of the City Council for the City of Columbia Heights, Minnesota, adopting a budget for the year 2016, setting the City levy, approving the HRA levy, and approving a tax rate increase. Whereas, on December 14th 2015, the City Council held a public meeting on the proposed 2016 budget and property tax levy; and Whereas, notice of this public meeting and the estimated effect of the proposed property tax levy was mailed prior to the hearing to each property owner by the County of Anoka, as required under the State of Minnesota Truth -in- Taxation statute; Now, therefore, in accordance with all ordinances and regulations of the City of Columbia Heights, the City Council of the City of Columbia Heights makes the following: ORDER OF COUNCIL IT IS HEREBY RESOLVED: Section A. The budget for the Cit}- of Columbia Heights for the year 2016 is hereby approved and adopted with appropriations for each of the funds listed below. Capital Bond 19 Expense Governmental Funds General Fund 11,022,668 Planning & Inspections 293,533 Economic Development Authority Admin. 295,216 Cable Television 134,122 Library 845,931 After School Programs 44,000 Special Project Fund 25,000 Public Safety- Other 169Al2 Capital Project Funds 3,354,033 Debt Service Funds 1J55,169 Capital Bond 19 Proprietary Funds Revenue Assets Principal Water Fund 3,073,042 935,290 241,028 Sewer Fund 2,352,584 82,290 35,000 Refuse Fund 1,981,991 0 0 Storm Sewer Fund 781,625 358,000 120,256 Liquor Fund 9,267,661 0 180,000 Central Garage 715,088 0 0 Building Maintenance 163A32 0 0 Information Systems 372A52 0 0 Total Including Interfund Transfers 36,646,959 1,375,580 576,284 Section B. The estimated gross revenues to fund the budget of the City of Columbia Heights for the year 2016, including general ad valorum tax levies and use of fund balances, are as listed below. Section C. The following sums of money are levied for the current year, collectable in 2016 upon the taxable property in the City of Columbia Heights, for the purposes listed below. 20 Revenue Governmental Funds General Fund 10,978,668 Planning & Inspections 293,533 Economic Development Authority Admin. 294,050 Cable Television 230,900 Library 845,931 After School Programs Special Project Funds 25,000 Public Safety- Other 169,412 Capital Project Funds 3,297,184 Debt Service Funds 1,828,947 Proprietary Funds Water Fund 3,210,400 Sewer Fund 1,849,500 Refuse Fund 1,928,500 Storm Sewer Fund 709,600 Liquor Fund 9,473,050 Central Garage 708,370 Building Maintenance 163,500 Information Systems 335,000 Use of Fund Balance 305,414 Total Including Interfund Transfers 36,646,959 Section C. The following sums of money are levied for the current year, collectable in 2016 upon the taxable property in the City of Columbia Heights, for the purposes listed below. 20 Estimated General Fund Levy8,641,452 Estimated Library Levy 813,999 Estimated EDA Fund Levy Total 78,023 9,533,474 Section D. The City Council of the City of Columbia Heights hereby approves the Columbia Heights Housing and Redevelopment Authority Tax Levy for the fiscal year 2016 in the amount of $202,364. BE IT FURTHER RESOLVED: That the County Auditor is authorized to fix a property tax rate for taxes payable in the year 2016 that is higher than the tax rate calculated for the City of Columbia Heights for taxes payable in 2015. BE IT FURTHER RESOLVED: That the City of Columbia Heights, pursuant to Resolution 2015 -07, has previously called and redeemed all bond principal and interest payments on General Obligation Bond Series 2007A applicable for taxes payable in 2016 in the amount of $137,255 and that the County Auditor is authorized to cancel the related Bond Levy in its entirety for taxes payable in 2016. BE IT FURTHER RESOLVED: That the City of Columbia Heights has adequate fund balances and reserves to pay bond principal and interest payments on General Obligation Bond Series 2008B in the amount of $439,360 and that the County Auditor is authorized to cancel $439,360 of the related Bond Levy for taxes payable in 2016, leaving a balance of $218,410 to be levied for taxes payable in 2016 for Series 2008B. BE IT FURTHER RESOLVED: That the City of Columbia Heights has adequate fund balances and reserves to pay bond principal and interest payments on General Obligation Bond Series 2009A in the amount of $4,091 and that the County Auditor is authorized to cancel $4,091 of the related Bond Levy for taxes payable in 2016, leaving a balance of $223,872 to be levied for taxes payable in 2016 for Series 2009A. BE IT FURTHER RESOLVED: That the City of Columbia Heights has adequate fund balances and reserves to pay bond principal and interest payments on General Obligation Bond Series 2013A in the amount of $104,787 and that the County Auditor is authorized to cancel the related Bond Levy in its entirety for taxes payable 2016. 21 BE IT FURTHER RESOLVED: That the City of Columbia Heights has adequate fund balances and reserves to pay bond principal and interest payments on General Obligation Bond Series 2015A in the amount of $5,454 and that the County Auditor is authorized to cancel $5,454 of the related Bond Levy for taxes payable in 2016, leaving a balance of $480,000 to be levied for taxes payable in 2016 for Series 2015A. BE IT FURTHER RESOLVED: That the Finance Director /Treasurer of the City of Columbia Heights is hereby instructed to transmit a certified copy of this resolution to the County Auditor of Anoka County, Minnesota. RESOLUTION NO. 2015 -98 A resolution of the City Council for the City of Columbia Heights, Minnesota, Whereas, a Utility Rate Study has been completed which has analyzed the past, current and future financial health of the City of Columbia Heights' Water, Sanitary Sewer, Storm Sewer and Refuse funds and; Now, therefore, in accordance with the foregoing, and all ordinances and regulations of the City of Columbia Heights, the City Council of the City of Columbia Heights makes the following: FINDINGS OF FACT In accordance M.S. 103G.29, and with the operating costs and rates to be paid by the City of Columbia Heights to the Metropolitan Council Environmental Services and the Minneapolis Water Department and other primary vendors of the City's utility funds, the following quarterly rates shall be effective for all billings rendered on or after January 1, 2016: 1. Water Supply Conservation Rates: Second tier rates established in section 2 below, apply as follows: Residential Second tier rate is for water use greater than 25,000 gallons per quarter per dwelling unit. Non- Residential - Less than linch Meter Second tier rate is for water use greater than 25,000 gallons per quarter. Non - Residential - linch Meter or larger Second tier rate is for water use greater than 250,000 gallons per quarter. Irrigation Meters: The Second Tier rate applies to all water run through sprinkler meters. 2. Water Supply Rates: Customer Classification Year 2016 2017 2018 2019 22 Residential Single Family Fixed Fee Tier 1 per 1000 Gallons Tier 2 per 1000 Gallons Water Meter Surcharge Residential Multi - Family Fixed Fee (Per Dwelling Unit) Tier 1 per 1000 Gallons Tier 2 per 1000 Gallons Non - Residential Commercial Fixed Fee (Based on Meter Size) Less than 1" Meter 1" Meter 1.5" Meter Customer Classification 2" Meter 3" Meter 4" and Larger Meter Tier 1 per 1000 Gallons Tier 2 per 1000 Gallons 3. Sanitary Sewer Disposal Rates: Customer Classification Residential Single Family Fixed Fee Rate per 1000 Gallons Maximum Charge per Quarter Residential Multi - Family Fixed Fee (Per Dwelling Unit) Rate per 1000 Gallons Non - Residential Commercial Fixed Fee (Based on Meter Size) Less than 1" Meter 1" Meter 1.5" Meter 2" Meter 3" Meter 4" Meter Rate per 1000 Gallons $ 25.25 $ 27.27 $ 28.22 $ 29.21 $ 3.79 $ 4.09 $ 4.23 $ 4.38 $ 4.73 $ 5.11 $ 5.29 $ 5.48 $ 3.00 $ 3.00 $ 3.00 $ 3.00 $ 25.25 $ 27.27 $ 28.22 $ 29.21 $ 3.79 $ 4.09 $ 4.23 $ 4.38 $ 4.73 $ 5.11 $ 5.29 $ 5.48 $ 25.25 $ 27.27 $ 28.22 $ 29.21 $ 50.50 $ 54.54 $ 56.45 $ 58.43 $ 63.13 $ 68.18 $ 70.57 $ 73.04 Year 2016 2017 2018 2019 $ 101.00 $ 109.08 $ 112.90 $ 116.85 $ 227.25 $ 245.43 $ 254.02 $ 262.91 $404.00 $ 436.32 $451.59 $467.40 $ 3.79 $ 4.09 $ 4.23 $ 4.38 $ 4.73 $ 5.11 $ 5.29 $ 5.48 Year 2016 2017 2018 2019 Sanitary sewer volume rates apply as follows: $ 21.96 $ 23.72 $ 24.55 $ 25.41 $ 2.38 $ 2.57 $ 2.66 $ 2.75 $ 81.46 $ 87.97 $ 91.05 $ 94.16 $ 21.96 $ 23.72 $ 24.55 $ 25.41 $ 2.38 $ 2.57 $ 2.66 $ 2.75 $ 21.96 $ 23.72 $ 24.55 $ 25.41 $ 43.92 $ 47.43 $ 49.09 $ 50.81 $ 54.90 $ 59.29 $ 61.37 $ 63.52 $ 87.84 $ 94.87 $ 98.19 $ 101.63 $ 197.64 $213.45 $ 220.92 $ 228.65 $ 351.36 $ 379.47 $ 392.75 $ 406.50 $ 2.38 $ 2.57 $ 2.66 $ 2.75 23 • Residential use up to 25,000 gallons per quarter per dwelling unit, single and multi- family. • Non - residential use for all volume metered. 4. Storm Sewer Rates: Customer Classification R -1 Single Family Residential R -2 One and Two Family Residential R -3 Multi - Family Residential R -4 Multi - Family Residential RB Residential Business LB Limited Business District GB General Business District $ 78.17 Customer Classification CBD Central Business District I Light Industrial 1 -1 Heavy Industrial MWW Minneapolis Water Works 5. Residential Refuse: Year 2016 2017 2018 2019 $ 10.24 $ 11.06 $ 11.45 $ 11.85 $ 10.24 $ 11.06 $ 11.45 $ 11.85 $ 67.57 $ 72.98 $ 75.53 $ 78.17 $ 67.57 $ 72.98 $ 75.53 $ 78.17 $ 131.54 $ 142.06 $ 147.03 $ 152.18 $ 131.54 $ 142.06 $ 147.03 $ 152.18 $ 148.68 $ 160.57 $ 166.19 $ 172.01 Year 2016 $ 319.96 2017 2018 2019 $ 148.68 $ 160.57 $ 166.19 $ 172.01 $ 116.08 $ 125.37 $ 129.76 $ 134.30 $ 131.54 $ 142.06 $ 147.03 $ 152.18 $ 16.32 $ 17.63 $ 18.25 $ 18.89 Service Size Year 2016 2017 2018 2019 30 Gallon Container $ 37.19 $ 37.95 $ 39.28 $ 40.65 60 Gallon Container $ 38.96 $ 39.75 $ 41.14 $ 42.58 90 Gallon Container $ 48.59 $ 49.58 $ 51.32 $ 53.11 1YardService $ 127.53 $ 130.13 $ 134.68 $139.40 1- 1 /2Yard Service $ 174.01 $ 177.56 $ 183.77 $ 190.21 2 Yard Service $ 203.20 $ 207.35 $ 214.61 $ 222.12 3 Yard Service $ 261.58 $ 266.92 $ 276.26 $ 285.93 4 Yard Service $ 319.96 $ 326.49 $ 337.92 $ 349.74 6 Yard Service $436.70 $445.61 $461.21 $477.35 8 Yard Service $481.13 $490.95 $508.13 $ 525.92 Recycle and Yard Waste Per Dwelling Unit (1 -3 Units) Recycle without Yard Waste $ 15.61 $ 15.93 $ 16.49 $ 17.06 Per Dwelling Unit (4 or More Units) $ 8.11 $ 8.28 $ 8.57 $ 8.87 Additional refuse information: • Quarterly prices shown are for weekly pickup. • Household recycling cost is based on every -other week collection. • Optional cart for yard waste is not included in the yard waste service price. Cart is available for an additional 24 cost. • 90 gallon refuse service allows for additional trash bags not in container to be picked up. • 2 yard compacted service computed as 6 yard non - compacted. 6. Senior Utility Rates (same as residentiat except as below): Owner Occupied Home Income - qualified Senior Water- Fixed Fee Sanitary Sewer- Fixed Fee Maximum Charge per Quarter Refuse -Any Size Container Up to 90 Gallons Year 2016 2017 2018 2019 $ 19.62 $ 21.19 $ 21.93 $ 22.70 $ 16.17 $ 17.46 $ 18.07 $ 18.70 $ 75.67 $ 81.71 $ 84.57 $ 87.45 $ 37.19 $ 37.95 $ 39.28 $ 40.65 RESOLUTION NO. 2015 -99 A resolution of the City Council for the City of Columbia Heights, Minnesota, Whereas, a Utility Rate Study has been completed which has analyzed the past, current and future financial health of the City of Columbia Heights' Water, Sanitary Sewer, Storm Sewer and Refuse funds and; Now, therefore, in accordance with the foregoing, and all ordinances and regulations of the City of Columbia Heights, the City Council of the City of Columbia Heights makes the following: FINDINGS OF FACT In accordance M.S. 103G.29, and with the operating costs and rates to be paid by the City of Columbia Heights to the Metropolitan Council Environmental Services and the Minneapolis Water Department and other primary vendors of the City's utility- funds, the following quarterly rates shall be effective for all billings rendered on or after January 1, 2016: 3. Water Supply Conservation Rates: Second tier rates established in section 2 below, apply as follows: Residential Second tier rate is for water use greater than 25,000 gallons per quarter per dwelling unit. Non- Residential - Less than linch Meter Second tier rate is for water use greater than 25,000 gallons per quarter. 25 Non- Residential - linch Meter or larger Second tier rate is for water use greater than 250,000 gallons per quarter. Irrigation Meters: The Second Tier rate applies to all water run through sprinkler meters. 4. Water Supply Rates: Customer Classification Year 2016 2017 2018 2019 Residential Single Family Fixed Fee Tier 1per 1000 Gallons Tier 2 per 1000 Gallons Water Meter Surcharge Residential Multi - Family Fixed Fee (Per Dwelling Unit) Tier 1per 1000 Gallons Tier 2 per 1000 Gallons Non - Residential Commercial Fixed Fee (Based on Meter Size) Less than 1" Meter 1" Meter 1.5" Meter Customer Classification 2" Meter 3" Meter 4" and Larger Meter Tier 1 per 1000 Gallons Tier 2 per 1000 Gallons 4. Sanitary Sewer Disposal Rates: Customer Classification Residential Single Family Fixed Fee Rate per 1000 Gallons Maximum Charge per Quarter Residential Multi - Family Fixed Fee (Per Dwelling Unit) Rate per 1000 Gallons Year Year $ 25.25 $ 27.27 $ 28.22 $ 29.21 $ 3.79 $ 4.09 $ 4.23 $ 4.38 $ 4.73 $ 5.11 $ 5.29 $ 5.48 $ 3.00 $ 3.00 $ 3.00 $ 3.00 $ 25.25 $ 27.27 $ 28.22 $ 29.21 $ 3.79 $ 4.09 $ 4.23 $ 4.38 $ 4.73 $ 5.11 $ 5.29 $ 5.48 $ 25.25 $ 27.27 $ 28.22 $ 29.21 $ 50.50 $ 54.54 $ 56.45 $ 58.43 $ 63.13 $ 68.18 $ 70.57 $ 73.04 2016 2017 2018 2019 $ 101.00 $ 109.08 $ 112.90 $ 116.85 $ 227.25 $ 245.43 $ 254.02 $ 262.91 $404.00 $ 436.32 $451.59 $467.40 $ 3.79 $ 4.09 $ 4.23 $ 4.38 $ 4.73 $ 5.11 $ 5.29 $ 5.48 2016 2017 2018 2019 $ 21.96 $ 23.72 $ 24.55 $ 25.41 $ 2.38 $ 2.57 $ 2.66 $ 2.75 $ 81.46 $ 87.97 $ 91.05 $ 94.16 $ 21.96 $ 23.72 $ 24.55 $ 25.41 $ 2.38 $ 2.57 $ 2.66 $ 2.75 26 Non - Residential Commercial Fixed Fee (Based on Meter Size) Less than 1" Meter $ 21.96 $ 23.72 $ 24.55 $ 25.41 1" Meter $ 43.92 $ 47.43 $ 49.09 $ 50.81 1.5" Meter $ 54.90 $ 59.29 $ 61.37 $ 63.52 2" Meter $ 87.84 $ 94.87 $ 98.19 $ 101.63 3" Meter $ 197.64 $213.45 $ 220.92 $ 228.65 4" Meter $ 351.36 $ 379.47 $ 392.75 $ 406.50 Rate per 1000 Gallons $ 2.38 $ 2.57 $ 2.66 $ 2.75 Sanitary sewer volume rates apply as follows: • Residential use up to 25,000 gallons per quarter per dwelling unit, single and multi- family. • Non - residential use for all volume metered. 4. Storm Sewer Rates: Customer Classification Year 2016 2017 2018 2019 R -1 Single Family Residential $ 10.24 $ 11.06 $ 11.45 $ 11.85 R -2 One and Two Family Residential $ 10.24 $ 11.06 $ 11.45 $ 11.85 R -3 Multi - Family Residential $ 67.57 $ 72.98 $ 75.53 $ 78.17 R -4 Multi - Family Residential $ 67.57 $ 72.98 $ 75.53 $ 78.17 RB Residential Business $ 131.54 $ 142.06 $ 147.03 $ 152.18 LB Limited Business District $ 131.54 $ 142.06 $ 147.03 $ 152.18 GB General Business District $ 148.68 $ 160.57 $ 166.19 $ 172.01 Customer Classification Year 2016 2017 2018 2019 CBD Central Business District $ 148.68 $ 160.57 $ 166.19 $ 172.01 1 Light Industrial $ 116.08 $ 125.37 $ 129.76 $ 134.30 1 -1 Heavy Industrial $ 131.54 $ 142.06 $ 147.03 $ 152.18 MWW Minneapolis Water Works $ 16.32 $ 17.63 $ 18.25 $ 18.89 5. Residential Refuse: Service Size Year 2016 2017 2018 2019 30 Gallon Container $ 37.19 $ 37.95 $ 39.28 $ 40.65 60 Gallon Container $ 38.96 $ 39.75 $ 41.14 $ 42.58 90 Gallon Container $ 48.59 $ 49.58 $ 51.32 $ 53.11 Ward Service $ 127.53 $ 130.13 $ 134.68 $139.40 1- P2Yard Service $ 174.01 $ 177.56 $ 183.77 $ 190.21 2 Yard Service $ 203.20 $ 207.35 $ 214.61 $ 222.12 3 Yard Service $ 261.58 $ 266.92 $ 276.26 $ 285.93 4 Yard Service $ 319.96 $ 326.49 $ 337.92 $ 349.74 6 Yard Service $436.70 $445.61 $461.21 $477.35 27 8 Yard Service $481.13 $490.95 $508.13 $ 525.92 Recycle and Yard Waste Per Dwelling Unit (1 -3 Units) $ 15.61 $ 15.93 $ 16.49 $ 17.06 Recycle without Yard Waste Per Dwelling Unit (4 or More Units) $ 8.11 $ 8.28 $ 8.57 $ 8.87 Additional refuse information: • Quarterly prices shown are for weekly pickup. • Household recycling cost is based on every -other week collection. • Optional cart for yard waste is not included in the yard waste service price. Cart is available for an additional cost. • 90 gallon refuse service allows for additional trash bags not in container to be picked up. • 2 yard compacted service computed as 6 yard non - compacted. 6. Senior Utility Rates (same as residentiat except as below): Owner Occupied Home Income - qualified Senior Water- Fixed Fee Sanitary Sewer- Fixed Fee Maximum Charge per Quarter Refuse -Any Size Container Up to 90 Gallons Year 2016 2017 2018 2019 $ 19.62 $ 21.19 $ 21.93 $ 22.70 $ 16.17 $ 17.46 $ 18.07 $ 18.70 $ 75.67 $ 81.71 $ 84.57 $ 87.45 $ 37.19 $ 37.95 $ 39.28 $ 40.65 RESOLUTION 2015 -100 A resolution of the City Council for the City of Columbia Heights, Minnesota, WHEREAS, the City Council of Columbia Heights is proposing to rehabilitate select state aid streets in the city that have not been rehabilitated under the street program, and WHEREAS, pursuant to Resolution No. 2015 -80, a report has been prepared by the City Engineer with reference to the Program, and the following street(s): Jefferson Street, 40th Avenue to 44th Avenue WHEREAS, the report provides information regarding whether the proposed project is feasible, necessary and cost - effective, and Said report is hereby received by the City Council of Columbia Heights on December 14, 2015. Now, therefore, in accordance with the foregoing, and all ordinances and regulations of the City of Columbia Heights, the City Council of the City of Columbia Heights makes the following: 28 FINDINGS OF FACT 1. The Council will consider the improvement of such streets in accordance with the report and the assessment of abutting or benefited property for all or a portion of the cost of the improvement pursuant to Minnesota Statutes, Chapter 429 at an estimated total cost of the improvement of $286,585. 2. A public hearing shall be held on such proposed improvement on the 7t" day of March, 2016, in the City Council Chambers at 590 40th Avenue N.E. at 7:00 P.M. and the City Clerk shall give mailed and published notice of such hearing and improvement as required by law. RESOLUTION NO. 2015 -101 A resolution of the City Council for the City of Columbia Heights, Minnesota, Whereas, pursuant to a Joint Powers Agreement (JPA) passed by the Council on June 22, 2015 the City of St. Anthony has prepared plans and specifications for Reconstruction of Stinson Boulevard from 37th Avenue to 150 feet north of 401h Avenue; Now, therefore, in accordance with the foregoing, and all ordinances and regulations of the City of Columbia Heights, the City Council of the City of Columbia Heights makes the following: FINDINGS OF FACT 1. Such plans and specifications identified as 2015 Street Rehabilitation, Stinson Boulevard from 37th to 150 feet north of 40th Avenue, City Project Number 1508 are hereby approved. 2. The City of St. Anthony shall prepare and cause to be inserted in the official paper and in a trade journal an advertisement for bids upon making of such improvement under such approved plans and specifications. The advertisement shall be published a minimum of three weeks prior to the bid opening, shall specify the work to be done, shall state that bids will be received by representatives of the City Council of St. Anthony and Columbia Heights until 10:00 a.m. on Wednesday, January 27, 2016 at which time they will be publicly opened at the place designated, will then be tabulated and will be considered by the Columbia Heights Council on Monday, March 14, 2016 in the Council Chamber. Any bidder whose responsibility is questioned during consideration of the bid will be given an opportunity to address the council on the issue of responsibility. No bids will be considered unless sealed and filed with the clerk and accompanied by a cash deposit, bid bond, or certified check payable to the City of Columbia Heights for 5 percent of the amount of such bid. RESOLUTION NO. 2015 -102 A resolution of the City Council for the City of Columbia Heights, Minnesota, Whereas, the City of Columbia Heights has planned improvements to Stinson Boulevard NE, State Aid Route No. 113 -113, between 37th Avenue NE and 190 feet north of 40th Avenue NE; and Whereas, the City of Columbia Heights has ordered the project for the 2016 Street and Utility Improvements; and Whereas, the City of Columbia Heights will be expending Municipal State Aid System funds on improvements to Stinson Boulevard NE; and 29 Whereas, this improvement does not provide adequate width for parking on both sides of the street; and approval of the proposed construction as a Municipal State Aid Street project must therefore be conditioned upon certain parking restrictions. Now, therefore, in accordance with the foregoing, and all ordinances and regulations of the City of Columbia Heights, the City Council of the City of Columbia Heights makes the following: FINDINGS OF FACT The City of Columbia Heights shall prohibit the parking of motor vehicles on the west side of Stinson Boulevard th NE from 37th Avenue NE to 190 feet north of 40 Avenue NE. RESOLUTION NO. 2015 -103 A resolution of the City Council for the City of Columbia Heights, Minnesota, Whereas, Minn. Statute § 331A.03 Subd. 3(b), allows a city to use its web -site or recognized industry trade journals as an alternative to disseminate solicitations of bids, requests for information and requests for proposals; Now, therefore, in accordance with the foregoing, and all ordinances and regulations of the City of Columbia Heights, the City Council of the City of Columbia Heights makes the following: FINDINGS OF FACT That from this day forward, the City of Columbia Heights may use the Columbia Heights website, www.columbiaheightsmn.gov , as an alternative means to disseminate solicitations of bids, requests for information, and requests for proposals for city construction, maintenance, and other improvement projects. That for the first six (6) months after this designation of an alternative means of dissemination, the city shall continue to publish solicitations of bids, requests for information and request for proposals, in the same official newspaper of the city in addition to the alternative method and that the publication in the official newspaper must indicate where to find the designated alternative method. That any dissemination by alternative means must be in substantially the same format and for the same period of time as a publication would otherwise be required under Minn. Statute § 331A.03 Subd. 3.0 RESOLUTION NO. 2015 -104 A resolution of the City Council for the City of Columbia Heights, Minnesota, Whereas, pursuant to an advertisement for bids for City Project No. 1504, Sanitary Sewer Lining bids were received, opened and tabulated according to law. Now, therefore, in accordance with the foregoing, and all ordinances and regulations of the City of Columbia Heights, the City Council of the City of Columbia Heights makes the following: FINDINGS OF FACT 30 The following bids were received complying with the advertisement: Bidder Base Bid Alt.1 Base Bid with Alt. 1 Visu -Sewer Inc. $ 97,414.25 $ 38,025.00 $ 135,439.25 Michels Corporation $ 108,547.75 $ 37,740.00 $ 146,287.75 Insituform Technologies $ 116,831.00 $ 39,000.00 $ 155,831.00 Veit & Company, Inc. $ 123,042.00 $ 37,500.00 $ 160,542.00 Lametti & Sons, Inc. $ 124,868.00 $39,000.00 $ 163,868.00 Hydro -Kiean $ 132,708.00 $ 50,898.75 $ 183,606.75 It appears that Visu- Sewer, Inc. of Pewaukee, Wisconsin 53072 is the lowest responsible bidder. NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF COLUMBIA HEIGHTS, MINNESOTA: The Mayor and City Manager are hereby authorized and directed to enter into a contract with Visu- Sewer, Inc. in the name of the City of Columbia Heights, for the 2015 Sanitary Sewer lining, City Project No. 1504, according to plans and specifications therefore approved by the Council. The City Engineer is hereby authorized and directed to return, forthwith, to all bidders, the deposits made with their bids except the deposit of the successful bidder and the next lowest bidder shall be retained until the contract has been signed. City Project No. 1504 shall be funded from the Sanitary Sewer Construction Fund. ORDINANCE NO. 1624 (First Reading- Summary) CABLE TELEVISION FRANCHISE ORDINANCE AN ORDINANCE GRANTING A FRANCHISE TO QWEST BROADBAND SERVICES, INC., D /B /A CENTURYLINK TO CONSTRUCT, OPERATE AND MAINTAIN A CABLE SYSTEM IN THE CITY OF COLUMBIA HEIGHTS, MINNESOTA, FOR THE PURPOSE OF PROVIDING CABLE SERVICE; SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE SYSTEM AND THE PUBLIC RIGHTS -OF -WAY IN CONJUNCTION WITH THE CITY'S RIGHT -OF -WAY ORDINANCE, IF ANY; AND PRESCRIBING PENALTIES FOR THE VIOLATION OF THE PROVISIONS HEREIN; The City Council of the City of Columbia Heights, Minnesota ordains: STATEMENT OF INTENT AND PURPOSE Qwest Broadband Services, Inc., d /b /a CenturyLink ( "Grantee "), applied for a cable franchise to serve the City. The City will adopt separate findings related to the application and the decision to grant a cable franchise to Grantee, which shall be incorporated herewith by reference. The City intends, by the adoption of this Franchise, to bring about competition in the delivery of cable services in the City. 31 Adoption of this Franchise is, in the judgment of the Council, in the best interests of the City and its residents. The specific terms and conditions of the Franchise Ordinance, Sections 11.101 to 11.114, and Exhibits are available for review at City Hall, 590 40th Avenue NE, Columbia Heights, MN 55421. ORDINANCE NO. 1625 (Emergency) ORDINANCE ESTABLISHING A MORATORIUM REGULATING THE RESIDENCY LOCATION OF PREDATORY OFFENDERS WITHIN THE CITY WHEREAS, predatory offenders present a significant threat to the public safety of the community as a whole, especially children, females, and vulnerable populations. Predatory offenders are likely to use physical violence and to repeat their offenses. The cost of predatory offender victimization to society at large, while not precisely calculable, is significant; and WHEREAS, the City Council finds that a disproportionately high number of predatory offenders are being placed in the City and it is in the best interest of the public to study and consider options for addressing and minimizing the public safety impacts of such placements; and WHEREAS, the City may amend and enact ordinances and regulations under its police powers as it sees fit, including through the adoption of moratoria and temporary regulations enacted to allow the City sufficient time to prepare and adopt permanent regulations; and WHEREAS, the City does not currently have an ordinance regulating the location of predatory offenders within its boundaries; and WHEREAS, the City has a compelling interest in promoting, protecting and improving health, safety and general welfare of the City's citizens; and WHEREAS, the City needs to study and evaluate the need to limit /prohibit certain predatory offenders from establishing temporary or permanent residence in certain locations where children are known to regularly congregate in a concentrated number; and WHEREAS, the Council has under consideration a temporary ordinance limiting the residency location of predatory offenders in order to study and consider a permanent ordinance limiting the residency location of predatory offenders within the City. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Columbia Heights, Minnesota, as follows: Section 1. Definitions The following words, terms, and phrases, when used in this Ordinance, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1.01 "Child" means any person under the age of eighteen (18). 1.02 "Designated predatory offender" means any person who has been categorized as a Level 111 predatory offender under Minnesota Statutes, Sec. 244.052, any successor statute, or a similar statute from another state in which that person's risk assessment indicates a high risk of re- offense. 32 1.03 "Permanent residence" means a place where a person abides, lodges, or resides for 14 or more consecutive days, 1.04 "Temporary residence" means a place where a person abides, lodges, or resides for a period of 14 or more days in the aggregate during any calendar year and which is not the person's permanent address, or a place where the person routinely abides, lodges, or resides for a period of four or more consecutive or non- consecutive days in any month and which is not the person's permanent residence. 1.05 "School" means a public or non - public elementary or secondary school. 1.06 "Licensed child care center" means a group child care center currently licensed by the applicable County or the State of Minnesota. 1.07 "Public playground" means a publicly- owned, improved park or other outdoor area designed, equipped, and set aside primarily for children's play. Section 2. Temporary Regulations on Predatory Offenders 2.01 It shall be unlawful for any designated predatory offender to establish a permanent or temporary residence within 2,000 feet of any school, licensed child care facility, public playground, or any other place where children are commonly known to regularly congregate. 2.02 For purposes of determining the minimum distance separation required by this Section, the requirement shall be measured by following a straight line from the outer property line of the permanent or temporary residence of the designated predatory offender to the nearest outer property line of the protected property. 2.03 A designated predatory offender residing within a prohibited area as described in this Section does not commit a violation of this Ordinance if any of the following apply: A. The person established the permanent or temporary residence and reported and registered the residence pursuant to Minnesota Statutes, Sec. 243.166 and 243.167 or any successor statute, prior to the effective date of this ordinance; B. The school, licensed child care center, or public playground within 2,000 feet of the person's permanent or temporary residence was opened after the person established such residence and reported and registered the residence pursuant to Minnesota Statutes, Sec. 243.166 and 243.167, or any successor statute; C. The residence is also, as of the effective date of this ordinance, the primary residence of the person's parents, grandparents, siblings, or spouse; or D. The residence is a property purchased, leased, or contracted with and licensed by the Minnesota Department of Corrections prior to the effective date of this ordinance. 2.04 The regulations imposed by this Section shall be in effect for a period of one year from the date of its adoption, until the final adoption of an amendment to the City Code regarding the residency location of predatory offenders, or upon its express repeal by the City Council, whichever occurs first. Section 3. Enforcement 33 3.01 A violation of this Ordinance shall be a misdemeanor. In addition, the City may enforce this Ordinance by mandamus, injunction, or other appropriate civil remedy in any court of competent jurisdiction, or through any administrative penalties program of the City Code. Section 4. Study of Issues 4.01 City staff is directed to study the impacts of the residency of predatory offenders within the City and determine if further or different limits to residency restrictions for such offenders will further protect the needs of the public. Staff is further directed to draft amendments to the current City Code as may be necessary to further the goals expressed above for consideration by the City Council. Section 5. Effective Date 5.01 This Ordinance shall become effective immediately upon its adoption. 34 Columbia Heights Public Arts Commission Minutes Keyes Room, Murzyn Hall Tuesday, November 10, 2015 6:30 pm Present: Sarah Arneson, Betsy Jetson, Rita Nau, Gretchen Nelson, and Jennifer Tuder Absent: Laura Palmer (alternate) Guests: PAC Liaison Donna Schmitt Called to order at 6:30 pm Approve the minutes from August 12, 2015, (Moved by Rita Nau; seconded by Sarah Arneson; passed by commission) Approve the minutes from September 9, 2015, (Moved by Rita Nau; seconded by Sarah Arneson; passed by commission) Approve the corrected minutes from October 14, 2015, (Moved by Betsy Jetson; seconded by Rita Nau; passed by commission) Correction: There are 23 artists on the Directory of Local Artists Old Business a. Sub - Committee Updates 1. Grants- Murals Sub - Committee i. Heights Theatre Mural Project 1. Betsy reviewed Mayor Peterson's comments from the Oct. 14 meeting 2. Gretchen emphasized the Mayor's prioritizing of the mural project. Break called at 6:42 pm; meeting reconvened at 7:06 ii. Mississippi Watershed Management Organization/Stewardship Fund Grant 1. Deadlines in November and May 2. Tabled until March 2016 Agenda 2. Policy Sub - Committee i. Nothing to report 3. Electronic Communications Sub - Committee i. Early January deadline to go live b. Ron Parizek (NEMAA) /future guest speaker? 1. NEMAA board - -- willing to speak with us at a future date 2. Parizek and Arneson discussed a possible arts fair at the Jamboree New Business a. PAC Members Update 1. Carrie Magnuson resigned 2. Two spots open for commissioners 3. Jen Tuder will serve as interim secretary for November and December MI b. Taste of the Heights 1. PAC discussed hosting a small, participant- created mural 2. Discussed difficulties with supplies and staffing 3. Motion to withdraw from participating in the Taste of the Heights event this year (Moved by Sarah Arneson; seconded by Betsy Jetson; passed by commission) c. Heighten the Arts Update 1. Jen reported her informal meeting with Tara Lawrence, a Columbia Academy theatre teacher interested in making connections with local arts organizations. 2. Tara inquired about how the Arts Commission could assist with publicity; Jen brought that forward to the Commission 3. Gretchen reported her meeting with Heighten the Arts a. The Arts Center was discussed again, since Heighten the Arts asked about the idea. b. Donna reported that there's been no action from the city. d. Muralists 1. Rita discussed two muralists she has met. 2. Gretchen reported her research on muralists 3. Other ideas for potential mural locations were discussed. Break at 7:35; reconvened at 7:39 a. Adam Turmin was also mentioned as possible muralist. e. 2016 Meeting Dates 1. Moved to the December 9, 2015, agenda. Adjourned at 7:42 (Moved by Rita Nau; seconded by Sarah Arneson; passed by commission) 37 Columbia Heights Public Arts Commission Minutes -DRAFT Keyes Room, Murzyn Hall Wednesday, December 9, 2015 6:30 pm Present: Sarah Arneson, Betsy Jetson, Rita Nau, Gretchen Nelson, and Jennifer Tuder Absent: Laura Palmer (alternate) Guests: PAC Liaison Donna Schmitt (arrived 6:45 pm) Called to order at 6:30 pm Motiont to approve the minutes from November 10, 2015, (Moved by Sarah Arneson; seconded by Betsy Jetson; passed by commission) Old Business a. Sub - Committee Updates 1. Grants - Murals Sub - Committee i. Nothing to report 2. Policy Sub - Committee i. Nothing to report 3. Electronic Communications Sub - Committee i. Nothing to report b. Ron Parizek (NEMAA) /future guest speaker? i. Nothing to report New Business a. PAC Members Update 1. Nothing to report b. Heighten the Arts Update 1. Nothing to report c. Muralists 1. Nothing to report d. 2016 Meeting Dates 1. No changes in meeting dates for 2016 e. Future direction of the commission 1. Commissioners discussed challenges to our goals for supporting arts in the community 2. Gretchen Nelson read a draft letter of resignation to the city council (see attached) 3. Motion to approve and send the letter to the city council (Moved by Betsy Jetson; seconded by Sarah Arneson; approved by the commission) Adjourned at 7:12 pm (Moved by Rita Nau; seconded by Sarah Arneson; passed by commission) 38 ECONOMIC DEVELOPMENT AUTHORITY (EDA) MINUTES OF THE MEETING OF DECEMBER 7, 2015 IN CONFERENCE ROOM 1 The meeting was called to order at 6:30 pm by Chair Peterson. Members Present: Bruce Nawrocki, Donna Schmitt, Gary Peterson, John Murzyn, Gerry Herringer, Marlaine Szurek, and Bobby Williams. Staff Present: Walt Fehst, Joseph Hogeboom, and Shelley Hanson. PLEDGE OF ALLEGIANCE- RECITED CONSENT ITEMS 1. Approve the Minutes from October 12, 2015. 2. Approve the Financial Report and Payment of Bills for September and October 2015 on Resolution 2015 -25. Questions by Members: Nawrocki noted that personnel expenses are over budget. Hogeboom said that salaries are split between funds 201 and 204 and that transfers are made between the two funds. He said the figures indicated on these statements are only for fund 204 (The EDA fund). Once the transfers are made, personnel expenses will be within budgeted amounts. He said next year the salaries will be charged differently to more accurately reflect the time spent in each fund by personnel in the department. Hogeboom told Nawrocki he would bring more detailed information on personnel expenses for both funds to the next meeting. Motion by Schmitt, seconded by Williams, to waive the reading of Resolution 2015-25 there being an ample amount of copies available to the public. All ayes. MOTIONPASSED. Motion by Schmitt, seconded by Williams, to approve the consent agenda as presented. All ayes. MOTION PASSED. EDA RESOLUTION 2015 -25 RESOLUTION OF THE COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY (EDA) APPROVING THE FINANCIAL STATEMENTS FOR SEPTEMBER & OCTOBER 2015 AND PAYMENT OF BILLS FOR THE MONTHS OF SEPTEMBER & OCTOBER 2015. WHEREAS, the Columbia Heights Economic Development Authority (EDA) is required by Minnesota Statutes Section 469.096, Subd. 9, to prepare a detailed financial statement which shows all receipts and disbursements, their nature, the money on hand, the purposes to which the money on hand is to be applied, the EDA's credits and assets and its outstanding liabilities; and WHEREAS, said Statute also requires the EDA to examine the statement and treasurer's vouchers or bills and if correct, to approve them by resolution and enter the resolution in its records; and 39 EDA Minutes Page 2 December 7, 2015 WHEREAS, the financial statement for the months of September & October 2015 has been reviewed by the EDA Commission; and WHEREAS, the EDA has examined the financial statements and finds them to be acceptable as to both form and accuracy; and WHEREAS, the EDA Commission has other means to verify the intent of Section 469.096, Subd. 9, including but not limited to Comprehensive Annual Financial Reports, Annual City approved Budgets, Audits and similar documentation; and WHEREAS, financials statements are held by the City's Finance Department in a method outlined by the State of Minnesota's Records Retention Schedule, NOW, THEREFORE BE IT RESOLVED by the Board of Commissioners of the Columbia Heights Economic Development Authority that it has examined the referenced financial statements including the check history, and they are found to be correct, as to form and content; and BE IT FURTHER RESOLVED the financial statements are acknowledged and received and the check history as presented in writing is approved for payment out of proper funds; and BE IT FURTHER RESOLVED this resolution is made a part of the permanent records of the Columbia Heights Economic Development Authority. Passed this 7th day of December, 2015 MOTION BY: SECONDED BY: AYES: All ayes BUSINESS ITEM 1. Single family Home Lot Sales Program — Lot Sale Authorization Hogeboom explained that in September, the Economic Development Authority (EDA) created the Single Family Home Lot Sales Program. Tollberg Homes has proposed to purchase each of the existing lots in the program for $22,500 per lot. The lots are listed as follows: 4606 Polk Street NE PID 25- 30 -24 -33 -0030 4636 Polk Street NE PID 25- 30 -24 -33 -0025 4641 Tyler Street NE PID 25- 30 -24 -33 -0038 4600 Polk Street NE PID 25- 30 -24 -33 -0031 4648 Polk Street NE PID 25- 30 -24 -33 -0023 40 4618 Polk Street NE PID 25- 30 -24 -33 -0028 EDA Minutes Page 3 December 7, 2015 Tollberg Homes has included a proposal that describes the company's portfolio and plans for the abovementioned lots. Staff has reached out to other communities in which Tollberg has built homes, and has received very positive feedback about the quality of Tollberg Homes' product, as well as the company's professionalism. Listing prices for the abovementioned lots were established at the Estimated Market Value for the individual properties, ranging from $40,200 to $50,600. Hogeboom explained that he had contacted about 20 builders and received feedback from a number of them that the lots currently available in the program, which are located in the Heritage Heights neighborhood, are generally of lower value than other properties in the City. (This will hopefully change when new housing stock is introduced into the neighborhood.) Hogeboom said he did get a verbal offer from another builder of $7,500 per lot, but he told that builder that the EDA would not consider that low of an offer. Staff feels that the offer from Tollberg Homes, which exceeds a local real estate agent's estimated values of the properties, is acceptable and should be considered by the Economic Development Authority. Staff recommends that the Economic Development Authority call a public hearing on Monday, January 4, 2016 to approve the conveyance of certain lots to Tollberg Homes. Questions /comments from members: Jerry Tollefson, from Tollberg Homes was present to answer questions. He told members that his company has built homes in Minot, ND and recently they have been building in Anoka, Coon Rapids, and Crystal. He said his homes are a quality product and he is not willing to cheapen the construction as the reputation of his company is at stake. He explained that they did a lot of research and established a price point not to exceed $200,000 for this area. Therefore, after taking into consideration the cost to construct the homes, they determined the purchase price of the lots could not be more than the $22,500 that has been offered. Tollefson said he is confident that he can build and sell the 6 houses during the next year to improve the neighborhoods. He passed out comparable sales figures he had gathered for commission members to review. Nawrocki asked what the EMV were on the lots. Hogeboom told him they ranged between $40,200 to $50,600. Nawrocki then asked what the realtors thought the lots were worth. Hogeboom said Remax estimated that the lots would sell for between $7,500 - $15,000. Hogeboom reminded members that the scattered site lots sold for $7,500 each and the Pierce Street lot went for $15,000. He said the price being offered tonight by Tollberg Homes is much higher than those sales. 41 EDA Minutes Page 4 December 7, 2015 Nawrocki wanted to know what the City paid for the lots and what the demo costs were. Hogeboom said the acquisition costs and demo costs were paid for by CDBG Grant funds. The only cost to the City thus far has been for the clean -up of the sites and general maintenance such as mowing. Murzyn asked what the costs were for sewer & water work done for those lots. Hogeboom said he would gather this information and have it for the members for the January Public Hearing. Szurek said we may sit on these lots a while if we hold firm to a higher price. She felt it is important to get them sold and built on in order to improve the neighborhood appearance and get them back on the tax rolls. Fehst stated that this. is three times the amount we got for the scattered site lots. Schmitt asked if Tollefson builds the houses on spec and then sells them, or if he waits till he has buyers. Tollefson stated he would purchase all the lots and then he plans on building two houses at a time. He lists them once they are sheetrocked prior to final finishing so that buyers can upgrade their options if they chose to. Nawrocki asked Hogeboom if neighbors are notified of the Public Hearing. Hogeboom stated that generally for an EDA Public Hearing it is published in the paper and it is posted on the agenda notices in various places. He said in this case he would also notify the builders that had previously been contacted, but that neighbors in the surrounding area are not generally notified. Motion by Williams, seconded by Herringer, to hold a public hearing of the EDA on January 4, 2016 to approve the conveyance of certain lots to Tollberg Homes. All ayes. MOTION PASSED. ADMINISTRATIVE REPORT A. January Goalsettim- Hogeboom told members that the last goal setting session was held two years ago. Some of the goals have been completed, some are in progress, and others haven't started yet. He will bring an update to the members at the January meeting. Hogeboom also informed the members that the 2016 CDBG application process starts in January and he will be attending a meeting regarding the criteria that is required to be part of the application. B. Development Proiect Update- Hogeboom gave members an update of the businesses opening at 5200 & 5220 Central Avenue. He also told them he hopes to bring information to them early next year regarding the Rainbow Mall site. 42 EDA Minutes Page 5 December 7, 2015 Hogeboom said the Final Plat for the Huset Park Sr Housing project will go before the City Council in January. They are planning on submitting the building permit documents once that is approved and then start construction in late winter. He told members that the new owners of the NE Business Center are working hard on getting a commercial tenant for the upper floors of the business center. They are confident they will be able to get a tenant who needs that much space. NE Bank will be moving out of the building once their new location in New Brighton is finished. The auto moratorium will be discussed at the work session following this meeting. Venture Pass has a proposal for the 47'x' & Central Avenue site that would include a Jiffy Lube, so the Council needs to be aware of this plan prior to making a final decision about changes to our Ordinance for future auto related businesses in the city. It was noted that the next meeting will be Monday, January 4th at 6:30 in Conference Room 1. The meeting was adjourned at 7:07 pm. Respectfully submitted, Shelley Hanson Secretary 43 OFFICIAL PROCEEDINGS COLUMBIA HEIGHTS TRAFFIC COMMISSION MONDAY, DECEMBER 7, 2015 CALL TO ORDER The meeting was called to order by Chairperson Ed Carlson at 5:30 p.m. ROLL CALL Members present: Commissioners Ed Carlson, Brian Clerkin, Kevin Doty, and Leonard Olson Members absent: Commissioner Charles Tyler Staff Present: Kathy Young, Assistant City Engineer Lenny Austin, Police Captain Sue Schmidtbauer, Public Works Secretary Council Liaison: Donna Schmitt APPROVAL OF MINUTES Motion by Doty, seconded by Olson, to approve the minutes of August 3, 2015, as presented. Motion passed unanimously. OLD BUSINESS None OTHER OLD BUSINESS None NEW BUSINESS A. REQUEST FOR NO PARKING ON SOUTH SIDE OF LOOKOUT PLACE BETWEEN JOLLY LANE AND 5T" STREET Ms. Veronica Johnson has requested the two short blocks on the south side of Lookout Place between Jolly Lane /Bakken Boulevard and 5th Street be designated as "No Parking ". The concern is the combination of intersections close together and the width of Lookout Place, especially during the winter months. Lookout Place is 30' wide. As a comparison, most residential streets in Columbia Heights are 31' to 33' wide. The distance between street centerlines is about 110'. There are no driveways in this section of Lookout Place. Approximately three vehicles can park on each block. Ms. Veronica Johnson stated that Lookout Place gets very narrow in the winter. Currently there is parking room for three cars on each block. Stated it is difficult to see around cars between Jolly Lane and Veteran's Way because of the way it is set up. In the winter cars park during the night and then get plowed around causing the snow to build up. Ms. Johnson stated these units have 4 -8 cars per unit. The association rule in the rest of the development states residents must park vehicles in the garages —two in garage and two in driveway. Lookout Place is not part of the association; it's a city street. Ms. Cornelia Boisjoli belongs to the housing association. The association rules state you can park in garages and driveways but not on the street. She has tried to direct this parking issue through the association but they state Lookout Place is a city street and they cannot enforce the City's rules. She has also 44 Traffic Commission Minutes — December 7, 2015 Page 2 discussed this with Captain Austin. The association currently plows Lookout Place as a courtesy to the City. The association has a "No Parking" rule for rest of the streets. She supports no parking on the south side of Lookout Place and would also like no parking on the north side. Fire trucks cannot get through in the winter. She has almost been hit when leaving the association from the north side of Lookout Place and pulling out onto 5th Street due to having to pull out further to see oncoming traffic. Carlson stated cars are not supposed to be parked on street overnight. Ms. Boisjoli stated she has been calling the police daily to have cars removed because she is concerned about emergency vehicles getting through. Captain Austin stated he has received complaints in the past —the police generally hit a few areas each night and then will focus on a certain area if they receive complaints. Robert Boisjoli agrees with his roommate. States Lookout Place is the road he turns into to get to his home and it is very narrow, making it difficult to get in. It is also difficult getting people to not park on the street. He would like to see the law enforced on that section of street. A resident at 401 Lookout Place would also like the no parking enforced in winter time, but does not feel it is necessary in the summer. He has four cars at his home. Street parking does affect him if family members are staying with him. A resident from 409 Lookout Place feels the south side needs no parking but not the north side, feels parking is needed on at least one side of the street. Doty suggested no parking on the south side of Lookout Place with signage stating no parking 30 feet back from each corner on the north side. Residents agreed with this plan. Wade Felska of Jolly Lane is a board member and feels strongly that Lookout Place does not have the area to support two sides of parking. He supports all statements that have been made. Motion by Doty to call for a Public Hearing at the next Traffic Commission meeting to designate "No Parking" on the south side of Lookout Place between Bakken Boulevard and 5th Street and designate "No Parking" 30 feet from each corner on the north side of Lookout Place between Bakken Boulevard and 5th Street. Motion seconded by Clerkin. Motion passed unanimously. B. REQUEST FOR 4 -WAY STOP SIGNS AT HUSET PARKWAY AND 5T" STREET Mr. Sam Kader has requested 4 -way STOP signs be installed at the intersection of Huset Parkway and 51h Street. The concern is the speed of vehicles driving through this intersection. This is a school bus stop and vehicles do not stop or yield for pedestrians. Traffic stops on 5th Street. Visibility at the intersection is good. The crosswalk on Huset Parkway is located on the south side of the intersection and is signed as a pedestrian crossing. The Police Department reviewed the accident record at this intersection for the last five years. There has been one accident. The intersection does not meet the MMUTCD guidelines for 4 -way stop signs. Mr. Kader stated his children get picked up by the bus at Huset Parkway and 5th Street and traffic is miserable. Some drivers stop and others drive 40 -50 mph. There is a curve on the north side and they come around it very fast. He is requesting a 4 -way stop sign because he feels this would be safer than just a pedestrian crossing. The pedestrian crossing is on the south side. Mr. Kader states that in the morning cars only come to a rolling stop. Cornelia Boisjoli stated she is familiar with that intersection. She states people do drive fast consistently at 40 -50 mph. It would help if there was a speed limit sign or a larger pedestrian sign, etc. Carlson advised that drivers violate speed limit signs all the time. Ms. 45 Traffic Commission Minutes — December 7, 2015 Page 3 Boisjoli stated there are no speed limit signs on that parkway. She would also like the street painted for a pedestrian crosswalk. Young stated the crosswalk is in and marked. Olson asked about a sign in middle of road. Young doesn't think a speed limit sign will make a difference; feels emphasis on the crosswalk is needed. She stated we can put up a "Crosswalk Ahead" sign and during warmer months place a portable sign in the street with an arrow. Clerkin agrees with emphasizing the crosswalk and drivers must stop by state law signage. Motion by Olson to deny the request for 4 -way stop signs based on the fact this doesn't meet MMUTCD guidelines, and instead add to the pedestrian signs and signage except for snow months. Seconded by Clerkin. Motion passed unanimously. It was also decided that there is a need for a better paint job and signage at the crosswalk. C. REQUEST FOR YIELD OR STOP SIGNS ON 43RD AVENUE AT MC LEOD STREET A resident has requested a STOP or YIELD sign at the intersection of McLeod Street and 43rd Avenue, stopping traffic on 43rd Avenue. The concern is the limited visibility at the intersection. This is a "T" intersection. Traffic on 43rd Avenue must turn left or right onto McLeod Street. The hill and fence on the northwest corner of the intersection does limit sight distance somewhat. The Police Department reviewed the accident record at this intersection for the last five years. There has been one accident and alcohol was a contributing factor in the crash. The intersection does not meet the guidelines in the MMUTCD for yield or stop signs. Motion by Olson to deny the request to install a YIELD or STOP sign at the intersection of 43rd Avenue and McLeod Street based on the information at hand. Seconded by Doty. Motion passed unanimously. D. REQUEST FOR NO PARKING ON STINSON BOULEVARD FROM 37T" AVENUE TO SILVER LANE (SAINT ANTHONY) The City Council has accepted the feasibility study and called for a public hearing to reconstruct Stinson Boulevard between 37th Avenue and Silver Lane. The street is proposed to be narrowed from 42' to 37' wide, providing room for a sidewalk or trail on each side of the street. The proposed street will be striped with two through lanes and a center turn lane, similar to current striping. The 37' width does not provide enough room for on street parking. The "No Parking" designation must be approved by the City Council at their next meeting to maintain the proposed hearing and construction schedule. Residents adjacent to Stinson Boulevard will have the opportunity to address the Council at a Public Improvement Hearing. Part of the funding for the above project is coming from State Aid. They require a "No Parking" resolution from the City Council in order to approve the funds so this is just formalizing what is currently in place. Staff will be meeting with residents at the assessment hearing so no public hearing is needed. Motion by Olson to designate the west side of Stinson Boulevard from 37th Avenue to Silver Lane as "No 46 Traffic Commission Minutes —December 7, 2015 Page 4 Parking ". Seconded by Clerkin. Motion passed unanimously. OTHER NEW BUSINESS None REPORTS A. CITY ENGINEER The City of Fridley is seeking MnDOT funding to improve traffic flow and safety on 53rd Avenue near Central Avenue. According to a study prepared by Bolton & Menk, Inc., 53rd Avenue experiences a crash severity rate almost four times the state -wide average. The most favorable proposal is to construct a roundabout near the Target /Medtronic entrance with a raised median extending east to Central Avenue. Traffic from driveways along this section of 53rd Avenue would be right in /right out only. This configuration is expected to improve peak evening traffic flows by reducing conflicting traffic movements, such as trying to make a left turn from the businesses onto 53rd Avenue. Fridley staff did look at placing a driveway behind the businesses on the north side but the grade is too steep so this is not feasible. Carlson states the roundabout will make it tough to get in and out of Embers. Olson feels the roundabout would put a pinch on businesses and still be dangerous. He thinks the state needs to change the timing of the eastbound traffic lights to release more traffic on 53rd, this would get more traffic out and ease the backups, should also have a combined straight through and right turn lane to Applebee's to provide more relief. The Traffic Commission feels a roundabout will make things worse and will hurt the businesses. Feels will still have crashes, just at a lower speed. Austin questioned if this is just a proposal —Young stated we need to get funding from M n DOT. B. POLICE None C. COMMISSIONERS Doty asked if we can put a speed trailer on Huset Parkway. Austin stated he can get it placed in the next couple of weeks for the January meeting. ADJOURNMENT Motion by Olson, seconded by Clerkin, to adjourn the meeting at 6:18 p.m. Motion passed unanimously. Respectfully submitted, Sue Schmidtbauer Public Works Secretary Erg UNAPPROVED OFFICIAL PROCEEDINGS COLUMBIA HEIGHTS TRAFFIC COMMISSION MONDAY, JANUARY 4, 2016 CALL TO ORDER The meeting was called to order by Chairperson Ed Carlson at 5:30 p.m. ROLL CALL Members present: Commissioners Ed Carlson, Brian Clerkin, Kevin Doty, and Leonard Olson Members absent: Commissioner Charles Tyler Staff Present: Kathy Young, Assistant City Engineer Lenny Austin, Police Captain Sue Schmidtbauer, Public Works Secretary Council Liaison: Donna Schmitt APPROVAL OF MINUTES Motion by Doty, seconded by Olson, to approve the minutes of December 7, 2015, as presented. Motion passed unanimously. PUBLIC HEARING TO DESIGNATE LOOKOUT PLACE AS NO PARKING Residents present: Veronica Johnson, 351 Jolly Lane Mohamed Botan, 401 Lookout Place (arrived late) Kathy Young, Assistant City Engineer, advised that at the Traffic Commission meeting on December 7, 2015, Commissioners called for a Public Hearing to consider restricting parking on Lookout Place. Ms. Veronica Johnson submitted a request for "No Parking" on the south side of Lookout Place, the concern being the combination of intersections close together and the width of Lookout Place, especially during the winter months. Several area residents attended the Traffic Commission meeting on December 7. The Commissioners and residents discussed the "No Parking" request. All residents in attendance agreed with no parking on the south side of Lookout Place from Bakken Boulevard to 5th Street. Resident opinions were split concerning no parking on the north side of Lookout Place. Visibility of traffic on 5th Street is an issue when vehicles are parked on the north side of Lookout Place. The private streets in the area have no street parking on either side. At the December meeting, the Traffic Commission called for a public hearing to consider "No Parking" on the south side of Lookout Place and "No Parking" for 30' from each corner on the north side of Lookout Place between Bakken Boulevard and 5th Street. Ms. Veronica Johnson faces Lookout Place. She was concerned about parking on the south side of Lookout Place and other residents were concerned about parking on the north side. Mr. Mohamed Botan stated he lives on the corner, so this is the only place to park in front of his house. Olson explained 48 Traffic Commission Minutes —Jan uary4, 2016 Page 2 that there is a visibility issue at the corners and we want to make it safe for both sides of the street. That is why no parking will be allowed 30' from the corner on the north side. Motion by Olson to designate "No Parking" on the south side of Lookout Place between Bakken Boulevard and 5th Street and designate "No Parking" 30 feet from each corner on the north side of Lookout Place between Bakken Boulevard and 5th Street. Motion seconded by Clerkin. Motion passed unanimously. Explained to residents that motions will be on the January 11th council meeting agenda. OLD BUSINESS None OTHER OLD BUSINESS None NEW BUSINESS REQUEST TO REMOVE NO PARKING DESIGNATION ON THE EAST SIDE OF JACKSON STREET On behalf of Immaculate Conception Church, Mr. Steve Smith has requested the No Parking signs for Saturday and Sunday be removed. The signs are on the east side of Jackson Street near the north end. The church feels there is no longer a need for a no parking restriction. In checking with the Fire and Police Chiefs, there are no concerns with removing the No Parking signs. Staff considers a Public Hearing necessary to discuss removing the "No Parking" designation, as residents may object to on street parking. For example, the streets adjacent to First Lutheran Church are posted "No Parking on Sundays" based on resident request. Motion by Olson to call a Public Hearing for the next Traffic Commission meeting to remove "No Parking Sunday" and "No Parking Saturday" signs on the east side of Jackson Street from 41St Avenue to approximately 230 feet south of 41" Avenue. Seconded by Carlson. Motion passed unanimously. OTHER NEW BUSINESS Commissioner Clerkin requested no parking 20' from the southeast corner of 5th Street and 40th Avenue so it is possible to see around trucks. There is a daycare center there now and no stores. He stated he has almost been hit many times coming from that intersection and would like it addressed at the next meeting. Young stated she will put it on the agenda. REPORTS A. CITY ENGINEER None B. POLICE Captain Austin reported the speed survey for Huset Parkway showed speeds higher than he 49 Traffic Commission Minutes — January 4, 2016 Page 3 anticipated, but nothing close to 50 mph. Speeds shown are averages with the top speed being around 37 or 38 mph. He stated that the curve in the road will throw speed perception off. However, in a residential area 37 or 38 is getting up there. Olson stated that with the park nearby he can see the concern. The plan is to mark the pedestrian crossing more clearly once the weather clears up. C. COMMISSIONERS Doty questioned what a long time meant regarding removing the No Parking signs on Jackson Street. He stated he has parked across from the person in question three times recently. States this person does come out in good weather and when in good health. Doty saw him last year and two years ago. He can still protest. Captain Austin stated he has not received a police call in years. The commissioners agreed that they need to revisit this at next the meeting when someone from the church is present. ADJOURNMENT Motion by Olson, seconded by Doty, to adjourn the meeting at 5:54 p.m. Motion passed unanimously. Respectfully submitted, Sue Schmidtbauer Public Works Secretary i•161 CH COLUMBIA HEIGHTS Columbia Heights Public Library 820, 40th Avenue NE, Columbia Heights, MN 55421 -2996 • Ph: 763 - 706 -3690 • TDD: 763 - 706 -3692 COLUMBIA HEIGHTS PUBLIC LIBRARY Approved BOARD OF TRUSTEES 1/6/2016 MINUTES December 2, 2015 The meeting was called to order by Chair Patricia Sowada at 6:32 p.m. Members present were: Nancy Hoium, Steve Smith, Patricia Sowada, Catherine Vesley and Council Liaison Gary Peterson. Also present: Library Director Renee Dougherty, Recording Secretary Renee Rewitzer and Brian Olson. Absent: Barbara Tantanella. The minutes of the November 4, 2015, Board meeting were approved as mailed. The bill list dated 11/4/2015 was reviewed. It was moved, seconded, and passed that the bills be paid. The bill list dated 11/18/2015 was reviewed. It was moved, seconded, and passed that the bills be paid. The November 2015 accounting was reviewed. Catherine Vesley asked if Anoka County Library has connected to the fiber optic system. According to Olson, Anoka County is connected to the fiber optic system at great savings. Vesley asked if Columbia Heights Library was connected and Dougherty replied that the library is purchasing internet service through the city of Columbia Heights and is not utilizing the county fiber at this time. The county fiber is merely the conduit; Anoka County does not sell or provide internet service to cities. Old Business: 1. The Foundation sent out a direct mail solicitation to local businesses requesting a financial gift to the new library. They also sent a letter to individuals. The Foundation movie fundraiser this year is scheduled for Saturday, December 12, at the Heights Theatre and will feature Tom Hanks in " The Polar Express" Musical entertainment begins at 1:00 p.m. with the movie following at 1:30 p.m. Tickets are $10.00. 2. The new library construction progress is slightly behind schedule. Dougherty and Jane Dedering from HGA will have one more meeting regarding shelving placement. Sowada asked if people are making donations to the new library and Vesley replied in the affirmative. Smith said that he approached Thomas Meierbachtol, a retiree who has been taking daily photos of the construction site, to share them with Smith. Meierbachtol also shared the photos with Library staff. Peterson reported that Pat Proft will be donating books to the new library. Columbia Heights Public Library Board of Trustees Minutes November 4, 2015 Page 2 3. Dougherty will interview for part -time Pages this week and will make a recommendation next Monday. She hopes to hire four applicants. Sowada asked how the new Children's Librarian is doing and Dougherty replied that she's adjusted well and is doing a fine job. Belanger hosted four Head Start class visits last week. Smith encouraged board members to go downstairs to greet Bri and Kelly next time they're at the library. New Business: 1. Anoka County and Bibliotheca are currently working on a contract for the RFID system. Columbia Heights Public Library will be eligible for the same prices for RFID tags, self -check kiosks, security gates, and staff stations that Anoka County Library received. Items from the Floor: 2. The City Manager has asked each Department to reduce the proposed budget for 2016 by 1 %. For the library, 1% equals $8,500. Dougherty sought Board advice and suggested reductions in Professional Development and the Out of Town Travel lines. Vesley said it would be unwise to cut staffing, hours or books. Smith asked what services would be compromised with a reduced number of Pages and Dougherty replied that lines at the circulation desk would be longer, the phones would go unanswered and that returned materials would not be re- shelved in a timely manner. 3. Catherine Vesley shared information about the free Annual Tea at Banfill -Locke on December 3, 2015, from 5 to 7 p.m. Peterson said there will be a Christmas Carol /Hymn Sing at the Oakhill Baptist Church in Fridley on December 13 beginning at 6:30 p.m. 4. There being no further business, the meeting was adjourned at 7:15 p.m. Respectfully submitted, Renee J. Rewitzer Recording Secretary, Library Board of Trustees The City of Columbia Heights does not discriminate on the basis of disability in the admission or access to, or treatment or employment in, its services, programs, or activities. Upon request, accommodation will be provided to allow individuals with disabilities to participate in all City of Columbia Heights services, programs, and activities. 52 COLUMBIA HEIGHTS AGENDA SECTION CONSENT ITEM NO. 7C MEETING DATE JANUARY 11, 2016 CITY OF COLUMBIA HEIGHTS - COUNCIL LETTER ITEM: Authorization to Purchase Police Vehicles ......................... DEPARTMENT: Police Department CITY MANAGER'S APPROVAL:,, BY /DATE: Scott Nadeau /December 23, 2015 15t' BY /DATE: BACKGROUND: As a part of the Police Department Capital Equipment replacement plan to maintain a safe and dependable vehicle fleet, the Police Department requests authorization to purchase two Ford Police Interceptor patrol vehicles. The purchase of two marked squad cars per year allows the department to keep the fleet in better working order, and aids in controlling costs on replacement parts. This also allows the marked squads to be rotated out of the police fleet after four years of service and rotated into another department in the city, who in turn get a better operating vehicle for conventional uses. In addition, the police department is requesting authorization to purchase one 2016 Chevy impala from the State Vehicle Contract. The vehicle scheduled for replacement is a 2008 Dodge Charger with over 90,000 miles on it. The Chevy Impala will be utilized as an unmarked vehicle for police functions. The State of Minnesota has awarded the contract for the delivery of Ford police vehicles to Nelson Auto Center of Fergus Falls, MN. The 2016 contract for the Chevy Impala has been awarded to Ranger GM of Hibbing, MN. The Police Department is requesting to purchase the following vehicles: 2 —2016 Ford Police Interceptor Utility vehicles (incl options) $53,199.90 1 — 2015 Chevy Impala Fleet 1GY69 $24,776.38 Total: $77,976.28 The Police Department is also requesting to expend up to $61,216.00 for outfitting and setting up these vehicles for police use. This amount includes the standard set -up as has been done in the past, plus the purchase of necessary equipment for the squads, including laptop computers. An additional expense this year is the addition of encrypted squad radios which have gone end -of -life and are due for replacement. This is the amount that was budgeted in the Police Departments 2016 Capital Equipment budget. STAFF RECOMMENDATION: It is our recommendation to the Council that new marked patrol vehicles, and an unmarked police vehicle, be purchased, with a total purchase price to be $77,976.28. The Police Department is also requesting authorization to expend up to $61,216,00 for outfitting and setting up these vehicles. RECOMMENDED MOTION(S): MOTION: Move to authorize the purchase of two 2016 Ford Police Interceptor Utility vehicles and one 2016 Chevy Impala unmarked vehicle under the State of Minnesota bid, with funding to come from 431.42100.5150, in the amount of $77,976.28 and that the Mayor and City Manager are authorized to enter into a contract for same. These vehicles will be used as marked patrol cars and unmarked police vehicles. MOTION: Move to authorize the Police Chief to expend up to $61,216.00 to set up and outfit two marked patrol cars and an unmarked vehicle. 53 City of Columbia Heights - Council Letter COUNCIL ACTION: Item Strip Out Old Squad Build New Squads Recessed Cage Shop Supplies squad lights Tomar siren box Console Computer mount dock station for cf31 arm rests Secondary cage for SUV Window bars /door covers Push Bumpers console base plate Utility Cargo Organizer Power Tamers Seat Covers Squad Graphics Light Bar /lighting package Unmarked Setup Unmarked Lighting Unmarked Gunlocker /Vault Unmarked radio head Sub Total Outfitting total: Total ATTACHMENTS: none 2016 Squad Purchase Est Price Ext. $500.00 $4,500.0 0 $689.00 $350.00 $708.00 $900.00 $389.00 $325.00 $838.00 $175.00 $ 500.00 $600.00 $350.00 $120.00 $1,150.0 0 $2,300.00 $150.00 $300.00 $989.00 $1,978.00 $1,300.0 0 $2,600.00 $2,000.0 0 $4,000.00 $1,500.0 0 $1,500.00 $2,000.0 0 $2,000.00 $1,200.0 0 $1,200.00 $700.00 $700.00 $38,466.00 $1,000.00 $9,000.00 $1,378.00 $700.00 $1,416.00 $1,800.00 $778.00 $650.00 $1,676.00 $350.00 $1,000.00 $1,200.00 $700.00 $240.00 $61,216.00 $139,192.28 Page 2 Item Est Price Total Ford Interceptor Utility $25,562.95 $51,125.90 Unmarked vehicle $24,776.38 $24,776.38 Dlr Options Ford $1,037.00 $2,074.00 Sub total $77,976.28 Ford dealer option breakdown Dark car feature $ 17.00 Rear view camera $ 408.00 LED Spotlight $ 345.00 Keying $ 45.00 Radio Suppression $ 87.00 Window Switches $ 30.00 Light Housing Pre - Drilled $ 110.00 rear dome light $ 45.00 heated outside mirrors $ 53.00 delete carpet $ (103,00) MISC Equipment CF 31 Toughbook $4,550.00 $9,100.00 Encrypted Squad Radios $4,550.00 $13,650.00 $22,750.00 54 CH COLUMBIA HEIGHTS AGENDA SECTION CONSENT ITEM NO. MEETING DATE JANUARY 11, 2016 CITY OF COLUMBIA HEIGHTS - COUNCIL LETTER ITEM: APPROVE CHANGE ORDER NO. 1 FOR CONCRETE ALLEY CONSTRUCTION, CITY PROJECT NO. 1402 DEPARTMENT: Public Works CITY MANAGER'S APPROVAL: BY /DATE: Kevin Hansen / January 6, 2016 BY /DATE: BACKGROUND: The 2015 Concrete Alley Construction project is substantially complete with only punch /warranty list items remaining. Modifications and additional work was required during construction due to field conditions. ANALYSIS /CONCLUSIONS: The change order (attached) is for the following construction items: • Items 1 & 2: Additional bituminous driveway replacement to better match existing driveway to new alley. • Items 3 & 4: Construct retaining walls in accordance with design prepared by Professional Engineer. • Item 5: High early concrete on commercial alley: Van Buren Street to Central Avenue, 39th to 40th Avenues. • Item 6: Class A aggregate for concrete to minimize popouts. • Item 7: Bump out retaining wall to accommodate utility pole. • Item 8: Storm sewer base slab. • Item 9: Convert 12" RCP to 12" DIP at one location with shallow pipe. • Item 10: Extra drain tile at low point along retaining wall where ground water was evident. • Items 11 & 12: Remove and install 6' high wood fence and install 42" chain link fence at retaining walls, coordinated with property owners. • Item 13: Seal pavers. Additions to the contract modified quantities using the contract bid price and negotiated amount based on the contractor's time and needed materials. Staff recommends approval of the Change Order No. 1 for the Concrete Alley projects. A copy of the change order is attached. RECOMMENDED MOTION(S): Move to approve Contract Change Order No. 1 for the 2015 Concrete Alley Construction, Project 1402, to New Look Contracting, Inc. of Rogers, Minnesota in the amount of $49,584.96 for a new contract amount of $631,920.71. ATTACHMENT(S): Change Order No. 1 55 CHANGE ORDER 1 Project: 2015 Concrete Alley Construction City Project: 1402 Owner: City of Columbia Heights Date of Issuance: December 30, 2015 637-3 81h Avenue N.E. Columbia Heights, MN 55421 Contractor: New Look Contracting, Inc. Engineer: City Engineer 14045 Northdale Blvd Rogers, MN 55374 You are directed to make the following changes in the Contract Documents: Description: Staff directed the contractor to modify quantities because of field conditions. Cost for the work was either bid prices or negotiated. Purpose of Change Order: The contract has been modified to include the following: CHANGE IN CONTRACT PRICE CHANGE IN CONTRACT TIME Original Contract Price: Original Contract Time: $ 582,335.75 Additions to the contract approved by Council Net Change from Previous Change Order: $ None Contract Price Prior to this Change Order: Contract Time Prior to this Change Order: $ 582,335.75 Net Increase of this Change Order: Net Increase (Decrease) of Change Order: $ 49,584.96 Contract Price with all Approved Change Orders: Contract Time with Approved Change Orders: $ 631,920.71 N/A Approved Approved By: By: City Engineer (Contractor) City Manager Walt Fehst Mayor Gary Peterson Date of Council Action 56 Attachment to Change Order 1 City Project No. 1402 Page 1 Owner: City of Columbia Heights Contractor: New Look Contracting Project: 2015 Concrete Alley Construction Description of Changes: The City requested the following work for additions, changes, or modifications to the contract documents: • Items 1 and 2: Aggregate base class 5, and Bituminous patch special, 3" driveway Additional driveway replacement was done to better match existing driveway grades to new alley. Costs will be appropriated from the special assessment /infrastructure fund. • Items 3 and 4: Modular block retaining wall and Structural concrete backfill As provided in the specifications, the block retaining wall was designed by a professional engineer after the contract was awarded. The change order reflects the final design quantities. Costs will be appropriated from infrastructure fund. Item 5: High early concrete High early concrete was used on the alley between Van Buren Street to Central Avenue from 39th Avenue to 40th Avenue. This provided a 3 day cure time rather than a 7 day cure to accommodate the businesses along Central Avenue. Costs will be appropriated from the special assessment /infrastructure fund. Item 6: Class A aggregate Class A aggregate was used in the alley construction. Class A aggregate results in fewer popouts than general use aggregate. A popout is loss of concrete surface and underlying aggregate up to the size of a quarter, and 1/4" to 1/2" deep. MnDOT allows 15 -20 popouts per square yard of concrete surface with general use aggregate. Costs will be appropriated from the special assessment /infrastructure fund. Item 7: Bump out retaining wall A bump out for the utility pole was constructed behind 3928 Central Avenue. The bump out allowed the majority of the retaining wall to be constructed on alley right of way rather than private property. Costs will be appropriated from the infrastructure fund. • Item 8: Storm sewer base slab A new base was installed under the existing storm sewer manhole in 43'd Avenue. The manhole was exposed to connect the new storm sewer pipe from the alley. The existing manhole was constructed without a base. Costs will be appropriated from the storm sewer fund. Item 9: Convert 12" RCP to 12" DIP 12" DIP was installed in lieu of RCP across the parking lot driveway due to the shallow depth of the pipe. Costs will be appropriated from the storm sewer fund. 57 Attachment to Change Order City Project No. 1402 Page 2 • Item 10: Extra drain tile at low point along retaining wall Ground water was observed during the retaining wall construction. Drain tile pipe was installed to direct the ground water to the storm sewer catch basin. Costs will be appropriated from the storm sewer fund. Items 11 and 12: Remove and install 6' huh wood fence and Install chain link fence Staff met with property owners after the retaining walls were constructed to finalize fencing options. Costs will be appropriated from the infrastructure fund. • Item 13: Seal pavers The pavers were sealed in accordance with the suppliers recommendations. The sealant is designed to minimize salt damage to the pavers. Costs will be appropriated from the storm sewer fund. CHANGE ORDER 1 No. Item Description Unit Quantity Unit Price Total Price 1 Aggregate base class 5, CV Cu. Yd. 26 $35.00 $910.00 2 Bituminous patch special, 3" driveway Sq. Yd. 157 $36.00 $5652.00 3 Modular block retaining wall (SRW) Sq. Ft. 178 $26.00 $4628.00 4 Structural concrete backfill Cu. Yd. 31 $250.00 $7750.00 5 High early concrete Cu. Yd. 250 $17.60 $4400.00 6 Class A aggregate Ton 337 $12.95 $4364.15 7 Bump out retaining wall Lump Sum 1 $1100.00 $1100.00 8 Storm sewer base slab Lump Sum 1 $998.13 $998.13 9 Convert 12" RCP to 12" DIP Lump Sum 1 $1165.20 $1165.20 10 Extra drain tile at low point along wall Lump Sum 1 $770.25 $770.25 11 Remove and install 6' high wood fence Lump Sum 1 $1891.98 $1891.98 12 Install chain link fence Lump Sum 1 $4911.50 $4911.50 13 Seal pavers Lump Sum 1 $11043.75 $11043.75 TOTAL CHANGE ORDER $49,584.96 Fund: Special Assessment /Infrastructure (415/430) $22,129.63 Infrastructure (430) $13,478.00 Storm (653) $13,977.33 58 CH COLUMBIA HEIGHTS AGENDA SECTION CONSENT ITEM NO. MEETING DATE JANUARY 11, 2016 CITY OF COLUMBIA HEIGHTS - COUNCIL LETTER ITEM: FINAL COMPENSATING CHANGE ORDER AND FINAL PAYMENT FOR MISCELLANEOUS CONCRETE, PROJECT NO. 1500 DEPARTMENT: Public Works CITY MANAGER'S APPROVAL: , BY /DATE: Kevin Hansen /January 6, 2016 BY /DATE: BACKGROUND: The contractor has completed the 2015 Miscellaneous Concrete Repairs and Installations. This annual program consisted of curb and gutter, driveway, and sidewalk improvements /repairs throughout the city. The change order consists of work approved by the City Council, as well as typical work added during Phase 2 of the contract. A spreadsheet with the fund distribution is attached. STAFF RECOMMENDATION: The Miscellaneous Concrete Program is set up on an annual basis with a preliminary estimate of quantities for the entire year. The quantities of work will vary from year to year based upon actual work performed in the two phases (late spring and fall). Staff recommends approval of the compensating change order and final payment to New Look Contracting, Inc. and acceptance of the work. A copy of the change order and the Engineer's Report of Final Acceptance is attached. RECOMMENDED MOTION(S): Move to approve the final compensating change order and accept the work for 2015 Miscellaneous Concrete Repairs and Installations, City Project No. 1500, and authorize final payment of $53,885.58 to New Look Contracting Inc. of Rogers, MN. ATTACHMENT(S): Change Order Engineer's Report of Final Acceptance Fund Distribution Spreadsheet 59 FINAL COMPENSATING CHANGE ORDER Project: 2015 Miscellaneous Concrete Repairs and Installations City Project: 1500 Owner: City of Columbia Heights Date of Issuance: January 6, 2016 6373 8th Avenue N.E. Columbia Heights, MN 55421 Contractor: New Look Contracting, Inc. Engineer: City Engineer 14045 Northdale Blvd. Rogers, MN 55374 You are directed to make the following changes in the Contract Documents: Description: Change in original contract price to compensate for additional work added to the contract by the City. No. Item Description Unit Quantit Unit Price Total Price 1 Remove sidewalk S.F. 104 $ 3.00 $ 312.00 2 Construct 4" concrete sidewalk S.F. 104 $ 7.50 $ 780.00 3 Remove concrete/bit driveway S.F. 1,041 $ 3.00 $ 3,123.00 4 Construct 8" concrete driveway S.F. 1,041 $ 7.50 $ 7,807.50 5 Place 3" agg base under 8" concrete S.F. 1,041 $1.00 $1,041.00 $13,063.50 Purpose of Change Order: The contract has been modified to include additional quantities for installation of concrete curb and gutter and alley. CHANGE IN CONTRACT PRICE CHANGE IN CONTRACT TIME Original Contract Price: Original Contract Time: $ 56,508.00 Previous Change Orders No. _ to No. Net Change from Previous Change Order: None Contract Price Prior to this Change Order: Contract Time Prior to this Change Order: $ 56,508.00 Net Increase (Decrease) of this Change Order: Net Increase (Decrease) of Change Order: $ 13,063.50 Contract Price with all Approved Change Orders: Contract Time with Approved Change Orders: $ 69,571.50 Recommended Approved By: By; City Engineer New Look Contracting, Inc. City Manager Walt Fehst 60 CITY OF COLUMBIA HEIGHTS ANOKA COUNTY, MINNESOTA ENGINEER'S REPORT OF FINAL ACCEPTANCE 2015 MISCELLANEOUS CONCRETE REPAIRS AND INSTALLATIONS CITY PROJECT NUMBER 1500 January 6, 2016 TO THE CITY COUNCIL COLUMBIA HEIGHTS, MINNESOTA HONORABLE MAYOR AND CITY COUNCIL MEMBERS: This is to advise you that I have reviewed the work under contract to New Look Contracting, Inc. The work consisted of curb and gutter, alley, driveway, and sidewalk improvements /repairs throughout the City. The contractor has substantially completed the project in accordance with the contract. It is recommended; herewith, that final payment be made for said improvements to the contractor in the amount as follows: ORIGINAL CONTRACT PRICE $56,508.00 CHANGE ORDERS $13,063.50 FINAL CONTRACT AMOUNT $69,571.50 FINAL WORK APPROVED $69,562.00 ALL PRIOR PAYMENTS ($15,676.42) BALANCE DUE $53,885.58 Sincerely, CITY OF COLUMBIA HEIGHTS Kevin R. Hansen City Engineer 1.1 l i� Z Z Z LL W H W U z O U U) Z O W z Q J J W U U) iE 00 000 000 00 Oo0 00 O J O O L O O O O U? O O O O O O O O O Z co V NOO ONCl) 00 0000 00 N V 1-- 000 ONO (DO W h0 646c, O O O Iq hMM 000 mlZr O V LO F- LO 4 (0 0 O LO N N N 0 F Q ER EA [f1 �3 ffJ ER (A ER 6H3 U z 00 aooi Cl m(o"r 00 000 c-iri" 00 oo 000 (0 (o00 00 00 O Q O O N 00 000 NN 0) O V M m M M M M N N N F- O O I- Cl) O C U Ln O M O OR N 1-0 NO O o'p O O (fl O r-- V> a0 O Y a m y 69 61) m Q Z Q (U LO _ V V ('J N N H Lq O O LQ O 0 z 00 Z V O N N h 0 w Lo if) Y O 6q (A (A N C D Q �} 64 m O r a 00 00 Z Q LO LO M M O O O O O O co II- O O 0- H LO O O O LO O (o Ln O N N Z m O mNM O(D0 co �� 1� LO O N O M 1.- 0 co N V O V t0 000 coo V V C ER 64 a7 LO N 6q N( 4 c m O Q Ef) EH 6) 63 N ~ K3 ER _ (n O O O O O O (o (D O OJ <C MM OOO 0J W Z 000 (DO (� N N N 1- t` N N O O O O O O O LO O O O LO M Z h 0 O O 1- N Z N LO N N O N N V V O N (fl 6q D) (6 Q HJ fA ea F O >m > Z Q O LO O O O Z M O O Oq F LO 00 O O C Z N N O O Lo p_ a) D LO h LO co LO y a) O LO V U) m Q (H ff3 EA 6 N _ a) Z Q O In O CD O O <t U- Z O r M co H O LOO O O 00 O O LO O in c _0 Z co of o o m > Z V)0) OD 00 a`) o 5 O C7 m 2E � � �ifi c c Q m o > H (� 0 (� Z o0 00 a �� C) C) Q) (D � N N W O O O Cl O O O O O O O O O O O H U t0 O Lo O LO O LO O O LO O In O O O M00 NCI- M1- Mlh MI- O LO VN ?2 d ER ER fA ER ER fA EA (ft EA EH 64 ER EA (fJ (A C (1) O m m cl m m L � Y O°c m m 3 Q) Q m > d -2 -2 o w m c o o m cl U U N a) m N w C m2 C N "O m o m 2m a) W N — E2 U — U m U Y U C M L) cr. C C 0 m C 0 m C 0 m 3 C 0 a) E U m a) o c ov m c0 W r-iD :2 _ 't N 00 U U la U U U m -0 U U) UC -0 O 0> > 2 > 2 2 > 2 LO 2 > 2 O N 0 O o O� O� U O N _ E C E C C E C E E C E C m Of or UU 0 0 U D�U DUI— a�U 1— CH COLUMBIA HEIGHTS AGENDA SECTION CONSENT ITEM NO. 7F MEETING DATE JANUARY 11, 2016 CITY OF COLUMBIA HEIGHTS - COUNCIL LETTER ITEM: ACCEPT BIDS AND AWARD CONTRACT FOR LIBRARY FF &E —STEEL SHELVING, CANOPY TOPS AND END PANELS DEPARTMENT: Public Works CITY MANAGER'S APPROVAL: ,j � � ff BY /DATE: Kevin Hansen / January 7, 2016 BY /DATE: / le-ht 0/ BACKGROUND: Awarded contracts for the new City Library include CP -1 and CP -2, and site utilities. While work is progressing on the building, other components of the new Library also need to be initiated to be ready for the opening in June of 2016. The contract with HGA also included design and project administration for FF &E —furniture, fixtures and equipment. As furniture, office equipment and steel shelving can have lead times of 8 -12 weeks, procurement needs to occur now to allow for May 2016 installation STAFF RECOMMENDATION: Plans and specifications were prepared by HGA and advertised on the City website, QuestCDN and the local newspaper. Two bids were received on January 6t" for the manufacture, delivery, storage, and installation of welded steel shelving, canopy tops and end panels. The bidding documents were specific that bidders were required to include with, or prior to, the submission of their bids shop drawings for shelving and an end panel mockup. These submittals were required to expedite the review process and provide an example of the wood end panel to evaluate the quality of the end panels / canopy tops for materials and construction. Only one of the bidders met this requirement. In addition, two addenda's were issued for during bidding — bidders are required to acknowledge addenda on the bid form to ensure the bids received meet specifications. Again, only one of the bidders acknowledged the two addenda on the submitted bid form. Further, the bid referenced a specific manufacturer for welded steel shelving, MJ Industries, or pre- approved equal. Pre - approval was required prior to bid submission. Jones did not submit to have their product line pre- approved. For these reasons, the bid from Jones Library Sales of Carlisle, Iowa was rejected as non - responsive. The bid from Embury met all of the bidding requirements and came in under the Architects estimate of $127,000 by over $32,000. Based on the bids received, HGA Architects and Public Works staff recommend award of contract to Embury LTD in the amount of $94,909.30. HGA Architects have had several past Library projects with Embury and commented on the high quality of their work and are a company that can deliver on time. RECOMMENDED MOTION(S): Move to accept bids and award a contract for FF &E — Shelving, Canopy Tops and End Panels for the new City Library, City Project No. 1410, to Embury LTD based upon their low, qualified, responsible bid in the amount of $94,909.30 from Fund 450 - 51410 -5185; and, furthermore, to authorize the Mayor and City Manager to enter into a contract for the same. ATTACHMENT (S): Bid Opening Minutes 63 CITY OF COLUMBIA HEIGHTS Minutes of Bid Opening on Wednesday, January 6, 2016, 2:00 p.m. Columbia Heights Library Furniture, Fixtures & Equipment City Project Number 1410 Pursuant to an advertisement for bids for Furniture, Fixtures & Equipment, City Project 1410, an administrative meeting was held on January 6, 2016 at 2:00 p.m. for the purpose of bid opening. Attending the meeting was: Kevin Hansen, City Engineer Jennifer McMaster, HGA Architects Stephan Harvey, Embury Ltd. Bids were opened and read aloud as follows: Bidder Base Bid Jones Library Sales, Inc. $ * Embury Ltd. $ 94,909.30 * Non - responsive, disqualified Respectfully submitted, Kevin Hansen City Engineer 64 CH 1 COLUMBIA HEIGHTS AGENDA SECTION CONSENT ITEM NO. 7G MEETING DATE JANUARY 11, 2016 CITY OF COLUMBIA HEIGHTS - COUNCIL LETTER ITEM: ACCEPT CHANGE ORDERS FOR LIBRARY PACKAGE CP -2, CITY PROJECT NO. 1410 DEPARTMENT: Public Works CITY MANAGER'S APPROVAL: BY /Date: Kevin Hansen / January 5, 2016 BY /Date: / O Background: Awarded contracts for the new City Library include CP -1 and CP -2, and site utilities. Work is 95% complete on CP -1, and progressing with the structural foundation and floor on CP -2. During the course of plan review, bidding and construction — the following items have changed, added or modified requiring a change order to the respective contracts. For CP -2, the following contracts are represented for the building construction: 1. General Contractor: Ebert Construction 2. Fire Protection: Breth - Zensen 3. Mechanical Cool Air Mechanical, Inc. 4. Electrical: Peoples Electric Co. Analysis /Conclusions: The change orders are for the following additions or deletions to the contract modifying the respective contracts: ICS Consulting and Public Works staff recommend approval of the Change Orders for Library Bid Package CP -2. RECOMMENDED MOTION(S): Move to approve contract Change Order Nos. 1, 2 and 3 for Library Bid Package CP -2, Project 1410, to Ebert Construction for a deduct of $1,758 for a new contract amount of $5,110,842. Move to approve contract Change Order Nos. 1 and 2 for Library Bid Package CP -2, Project 1410, to Cool Air Mechanical totaling $132,586 for a new contract amount of $947,856. Move to approve contract Change Order Nos. 1 and 2 for Library Bid Package CP -2, Project 1410, to Peoples Electric totaling $44,153 for a new contract amount of $794,653. ATTACHMENT(S): Change Order Summary Sheet 65 Change Order #1 Change Order #2 Change Order #3 Ebert Continuous glass in entry lobby and solid Credit for piling Credit for Construction surface counters. depths. Builders Risk insurance. Cool Air State plumbing code review of roof drains and HVAC automation Mechanical, Inc. piping. Change VAV box sizes to match airflow. control systems. Peoples Electric Change parking lot light pole locations. Code Change in size of Co. review for rigid conduit in roof system. Primary transfer switch for power service to building (in lieu of Xcel) generator. ICS Consulting and Public Works staff recommend approval of the Change Orders for Library Bid Package CP -2. RECOMMENDED MOTION(S): Move to approve contract Change Order Nos. 1, 2 and 3 for Library Bid Package CP -2, Project 1410, to Ebert Construction for a deduct of $1,758 for a new contract amount of $5,110,842. Move to approve contract Change Order Nos. 1 and 2 for Library Bid Package CP -2, Project 1410, to Cool Air Mechanical totaling $132,586 for a new contract amount of $947,856. Move to approve contract Change Order Nos. 1 and 2 for Library Bid Package CP -2, Project 1410, to Peoples Electric totaling $44,153 for a new contract amount of $794,653. ATTACHMENT(S): Change Order Summary Sheet 65 � N w Y o a — N c `^ �P a; o c c v r o m U c fV CL u V = Z Z W v � a = 2 > 0 0 U � � v o c G1 = V "> C E- 0 i., V v tUif p •- P — P ^ �n O uU O n O O _0 O V � N 00 O O O 14 00 -0 N C. l3 m O n M N N O V r4 r rn O b4 64 b4 64 OD Ln rn n C, Ln N N 7 � N t U o N N O ri N O N — v U L N N 0 V 0 N 0 U 0 N o O z Z z z z Z Z z c a a a 6 ai 3 6 6 C C C C C C C a f6 L r co co co ca cc co co V V V u U ru u. u V u C C C 4 0 C C O C C b4 b9 b9 a b0 v b4 b9 '� N Y O XD C C C C C C 0 U U V U U U Ln co � U V U U U U hA U U T T T T T O T T E E E E E E E Q Q Q Q Q Q Q N a N Q L O O U L O 6 � O Y Y v * O J J N Q N U m S N 2 O O J i 0 C a� u c c O U O 3 O_ +J C C C V U O O 0 o O c c U U V V V V b V V J J J N M V U L L N N 0 O C C C c: N m N 0 N N O O O L L W W U U U Q Q v co a C U oA t OV a) 0 v o0 00 00 0 0 w w w U U d d -0 m -0 -0 -0 U u a a Q a s u� U � U u u 0 0 0 0 0 0 0 H w bb w bOCO w bb4 C ba).O u b � v b cz U U U U U U U M N — N — N — O O O O O O � O O O O O O O O M M L C) C> O O o 0 0 0 0 O O O o 0 0 0 co Oo co co co co co O O O O O Cl O In L? L? L? L? I? L? NN V N N N N U V V U V U V b b td td cd b cd C C C C C C C U U V U U U U �n uU x _0 � N O O 14 00 -0 7 l3 O N O � N hA 0 � O 7 � N t U O Y ri W v U L L c w 3 0 0 a f6 L r E � u U ru N N N E 4 0 O O Y O L 0 v •- '� N Y O XD '0 0 c 0 Y > co � U _ L O hA L O c O U m u ._ U 2 ru N a N Q L O O U L O 6 � O v * O O O N Q N U O O O 0 C a� u O U O 3 O_ +J n O C O O 0 M N M Q U Y w 0 O O N m N 0 O C oA — ' m co a C U oA t OV C U O O 00 > ,� M t -0 m -0 -0 -0 U u a a Q a s u� U � U u u 00 0 00 00 H 0 u � v f0 Gy H u W d O � y � L Q d a py W O U CH COLUMBIA HEIGHTS AGENDA SECTION CONSENT ITEM NO. 7H MEETING DATE JANUARY 11, 2016 CITY OF COLUMBIA HEIGHTS - COUNCIL LETTER ITEM: POWER PURCHASE AGREEMENTS TO ADD SOLAR POWER AT FOUR CITY BUILDINGS DEPARTMENT: Public Works CITY MANAGER'S APPROVAL: BY /DATE: Kevin Hansen / January 5, 2016 BY /DATE:' BACKGROUND: At the Council Meeting on November 9, 2015, the City Council authorized the preparation of Power Purchase Agreements (PPA) for adding solar panels for electrical power generation at four (4) public buildings: Top Valu 1 liquor store, the Public Safety Building, the Municipal Service Center, and the new Library. The Solar Engineering report detailing the cash flow and long term benefit was also accepted by the Council on November 9, 2015. In Minnesota, consideration for solar power is largely due to both Federal Tax Credits and State Programs providing incentives for solar power. A large push is being made in 2015 and 2016 as the solar programs are either being reduced or eliminated at the end of 2016. Two programs available and evaluated for adding solar power to our City buildings are: • Made in Minnesota (MIM) • Rooftop Solar Made in Minnesota is a state lottery based system providing rebates for equipment made in Minnesota. The program is for smaller systems up to 40KW. Staff applied for this program and Top Valu 1, located at 4950 Central Avenue, was selected by the State from the lottery program. Rooftop Solar is a new program started in 2015 for larger systems from 10OKW to 1,000KW utilizing Xcel Energy capacity credits and demand charges, which provide reductions in the electric billings we pay to Xcel. This program would apply to the other three buildings. In both of the programs above, there are minimal or no upfront costs to the City. A third party investor purchases and installs the systems and operates them within a specific timeframe: 10 years for MIM, and 15 or 20 years for the Rooftop Solar program. The City enters into a Power Purchase Agreement (PPA) with the third party operator for the program timeframe, projected with a modest annual cost savings. At the end of the term, the ownership of the panels is turned over to the City along with the full energy benefits. SOLAR PPA(s): Attached is the complete Solar Agreement to provide rooftop solar at four (4) municipal buildings. Due to the two different programs, we will have two separate PPA's — one covering the MIM program and one for the Rooftop Solar Program for the other three buildings. Staff forwarded the PPA's to both our City Attorney and the League of MN Cities for review. The Agreement has been revised to include their comments. 67 City of Columbia Heights - Council Letter The complete Solar Agreement consists of the following: • Guaranteed Energy Savings Agreement with the following exhibits: A. Scope of Work B. Schedule of payments C. Certificate of final acceptance D. Guaranteed Savings Calculation E. Not Used F. Measurement and Annual Reporting G. Owner (CITY) Responsibilities H. General Requirements I. Project Schedule J. Insurance K. Rooftop PPA L. MIM PPA M. MIM Site Lease Agreement Page 2 A. Scope of Work: Apex will coordinate the installation of solar panel arrays at the four City buildings. This work includes all engineering, permits, mobilization, construction, and connection to the electrical grid. The work will be conducted by contractors hired by Apex, with permits pulled through the City or State. Insurance and bonding will be provided to the City and maintained for the duration of the construction. B. Payments by the City: Once the installation is complete, Columbia Heights shall pay Apex $1.00. C. Certificate of Final Acceptance: Apex will certify to the City that the installation is complete and will deliver energy at each building as detailed in the Engineering Report. Final acceptance also includes detailing the final cost of installation at each building, as -built plans, and Operating and Maintenance manuals for the type of equipment installed. D. Guaranteed Savings: This section provides the minimum amount of energy savings calculated at each building on an annual basis. E. Not Used F. Apex shall prepare an annual report for the duration of each PPA that details the energy saved (energy produced by the solar panels) at each building. G. City Responsibilities: Details responsibilities of the City for each site for both during construction and for the duration of the PPA. This includes site access, major remodeling or changes to the building(s), providing internet access (for monitoring). H. General Requirements: This section details other requirements during installation such as protecting the site, storage of materials on -site, temporary power, sanitary facilities, parking and site cleanup. I. Project Schedule: The project would take place beginning in March until startup in October. J. Insurance: Minimum insurance requirements. Prior to beginning any work, Insurance Certificates will be provided to the City. K. PPA — Rooftop: This is the PPA covering the three (3) municipal buildings — Public Safety, Public Works and the new Library. This Agreement is between the investor, New Energy Equity, LLC out of Maryland or 'System Owner' and the City of Columbia Heights or 'Host Customer.' It provides that the System Owner will: i) Design, install, operate and maintain the solar electric generating system at the three buildings; and 68 City of Columbia Heights - Council Letter Page 3 ii) Install and test the system(s) to meet the Engineering Report and technical requirements; and iii) City will purchase the energy produced from the solar panels; and iv) Provide mutual indemnification to Host Customer; and v) At all times during the agreement will maintain insurance coverage. PPA — MIM: This is the PPA covering Top Value 1 liquor store. This Agreement is between the investor, Apex Efficiency Solutions or 'Seller' and the City of Columbia Heights or 'Purchaser.' It provides that the Seller will: a. Design, install, operate and maintain the solar electric generating system at the three buildings; and b. Install and test the system(s) to meet the Engineering Report and technical requirements; and c. City will purchase the energy produced from the solar panels; and d. Provide mutual indemnification to Host Customer; and e. At all times during the agreement will maintain insurance coverage. M. MIM Site Lease: Specific to MIM, the Site Lease provided defines the space (rooftop) and equipment (solar panels) and access to the site for the Top Valu 1 installation and operation for the 10 year period of the PPA. Cumulatively, adding solar power to these four buildings is projected to save the City $444,000 in 20 years following installation and over $1,015,000 after 25 years of operation. RECOMMENDED MOTION(S): Move to approve the Power Purchase Agreement to add solar power to Top Valu 1 (4950 Central Avenue); the Public Safety Building; the Municipal Service Center; and the new City Library. Attachment: Solar Agreement, with exhibits A -M 69 pexFacility Solutions • Efficiency Solutions • Arena Solutions This Guaranteed Energy Savings Agreement ( "Agreement "), is made by and between the City of Columbia Heights, hereafter referred to as CLIENT with an office at 590 40th Ave NE, Columbia Heights, MN 55421, and Apex Efficiency Solutions, SBC, a Minnesota Special Benefit Corporation, with its principal place of business at 403 Jackson Street, Anoka, MN 55303 hereafter referred to as CONTRACTOR. CLIENT and CONTRACTOR may be referred to as "Party" or collectively as "Parties." 1.0 RECITALS WHEREAS, the CLIENT is authorized under Minnesota Statutes Section 471.345 subd.13, (the Statute ") to enter into guaranteed energy savings agreements with a qualified provider not exceeding twenty years for the purpose of implementing comprehensive utility cost - savings measures to improve the energy efficiency of an independent school district facility provided the cost of implementing the measures will not exceed the amount to be saved in utility operation and maintenance costs over a twenty year period and the qualified provider provides a written guarantee that the energy or operating cost savings will meet or exceed the cost of the system; and WHEREAS, CLIENT signed the Detailed Engineering Study Agreement on March 24, 2015 for CONTRACTOR to provide a Detailed Engineering Study / Technical Energy Audit at the CLIENT's Premises; and WHEREAS, CONTRACTOR represents that it is qualified, willing and able to responsibly act as guarantor for energy, operational and maintenance cost savings (the "Savings "), and to provide or to arrange for long term debt financing as hereafter set forth; WHEREAS, CLIENT has reviewed the Project Costs and Savings and believes it to be reasonable and accurate; WHEREAS, CLIENT is authorized under the Statute to make payments required by the debt service obligation from the Savings obtained from the installation of the utility cost savings measures described herein; and WHEREAS, CLIENT has published notice of, and held a meeting in which it proposed to award the contract, the names of the parties to the proposed contract, and the contract's purpose. NOW, THEREFORE, in consideration of the mutual benefits and obligations set forth herein, the parties hereto agree as follows: 2.0 DEFINITIONS The terms defined in this section shall, for all purposes of this Agreement, have the meaning herein specified. "Acts of God" An Act of God is an unusual, extraordinary and sudden manifestation of an event that could not under normal circumstances have been anticipated or expected. Ordinary weather conditions of normal intensity for the locality shall not be considered as an Act of God "Change" shall mean substitutions, additions, or deletions within the scope of the Agreement as expressly approved in writing by CLIENT. "Completion Date" shall mean the date on which CLIENT issues the Certificate of Final Completion. "Extra Work" shall mean work outside the scope of this Agreement. "Guarantee Commencement Date" shall mean the Completion Date. "Guarantee Term End Date" shall mean the date on which CONTRACTOR's guarantee term ends. "Guarantee Year" shall mean each twelve (12) month period during the term of this Agreement, beginning on the Completion Date. Agreement ral pexFacility Solutions • Efficiency Solutions • Arena Solutions "Measured and Verified Savings" shall mean utility cost savings calculated using utility consumption data recorded by utility meter(s). "Pre- agreed Savings" shall mean utility cost savings calculated using generally accepted engineering methods when actual measurements are impossible or not cost effective. "Final Acceptance" The work has progressed to the point where the system is generating power which is available for consumption by the Client. This date is referred to and commencement of commercial operation in the Power Purchase Agreement (PPA). "Total Actual Savings" shall mean the sum of the reconciled utility cost savings, and the operation and maintenance cost savings. "Utility Savings" shall mean the difference between the utility consumption under the pre - contract conditions and the utility consumption after the "Work" has been completed under the contract. Utility savings shall be calculated in comparison to an established baseline of utility consumption. "Work" means activities set forth in Exhibit A. "Working Days" means Monday through Friday excluding State holidays. "Solar Power Purchase Agreement" means the agreement contained in Exhibit K and L. The Solar Power Purchase Agreement may be referred to as "Power Purchase Agreement" or'PPA." 3.0 EXHIBITS The following Exhibits are attached hereto and made a part hereof thereby: ® Exhibit A - Scope of Work ® Exhibit B - Schedule of Payments ® Exhibit C - Certificate of Final Acceptance ® Exhibit D - Facility Operating Parameters & Utility Savings Calculation Methods ❑ Exhibit E - Not Used ® Exhibit F - Contractor's Measurement and Verification Responsibilities ® Exhibit G - CLIENT's Maintenance Responsibilities ® Exhibit H - General Requirements & Site - specific Requirements ® Exhibit I - Project Schedule ® Exhibit J - Insurance Coverage ® Exhibit K - Solar Power Purchase Agreement ® Exhibit L - Made In Minnesota Solar Power Purchase Agreement ® Exhibit M - Rooftop Lease Agreement 4.0 TERM OF CONTRACT Effective Date: The Effective Date of this Agreement shall be the date all signatures required have been obtained on this agreement, the Solar Power Purchase Agreement in Exhibit K and L, and the Rooftop Lease Agreement in Exhibit M. CONTRACTOR shall not begin work under this Agreement until this Agreement is fully executed and CONTRACTOR has been notified by CLIENT's Contact to begin the work. Agreement 2 71 ApexFacility Solutions • Efficiency Solutions • Arena Solutions Term: Unless otherwise canceled or terminated, this Agreement shall expire twenty (20) years after the Completion Date. 5.0 CONTACTS For the purpose of administration of this Agreement, the following individuals will be the contact personnel authorized to speak on behalf of the respective parties. CLIENT Contact: Kevin Hansen, (hereafter "CLIENT Contact "). CONTRACTOR shall render all services pursuant to this Agreement under the direction of the CLIENT Contact or the designated representative. CONTRACTOR Contact: Mark Rasmussen, CONTRACTOR (hereafter "CONTRACTOR Contact "). CLIENT shall provide all the direction and supervision pursuant to this Agreement under the direction of the CONTRACTOR Contact or the designated representative. 6.0 CONTRACTOR'S DUTIES Equipment and Materials: CONTRACTOR shall provide all materials, and equipment necessary to perform the work. CONTRACTOR shall provide CLIENT with specifications, drawings, cut sheets, and other information required by CLIENT regarding the materials and equipment for review, acceptance and approval pursuant to Section 7.0 Acceptance, prior to implementation of the work. Installation Services: CONTRACTOR shall install, replace and refurbish equipment and energy systems components at the Facility, as more specifically described in Exhibit A. CONTRACTOR shall provide CLIENT with specifications, drawings, and other information required by CLIENT regarding installation, replacement and refurbishment for review, acceptance and approval pursuant to Section 7.0 Acceptance, prior to implementation of the WORK's. CONTRACTOR shall provide the installation, replacement and refurbishment services with minimum interruption to the normal business of the Facility. CONTRACTOR shall perform all Work under this Agreement according to the schedule set forth in Exhibit I. Damaged Facilities to be restored: Where CONTRACTOR, subcontractors or any of its agents, causes damage to any part of the Facility during the Work, CONTRACTOR shall restore or replace the damaged part to its original condition or to the reasonable satisfaction of CLIENT as determined by the CLIENT Contact. Personnel: CONTRACTOR shall secure, at its own expense, all personnel required in the performance of this Agreement. Such personnel shall not be deemed employees of CLIENT for any purposes whatsoever. CONTRACTOR further represents that all of the services required hereunder will be performed by CONTRACTOR or under its supervision, all personnel so engaged shall be fully qualified and authorized under applicable law to perform such services, and that CONTRACTOR is responsible for all Work of its subcontractors and agents. Cleanup: CONTRACTOR shall keep the premises and the surrounding area free from accumulation of waste materials or rubbish caused by the Work and, upon completion of the Work, CONTRACTOR shall remove all waste materials, rubbish, tools, construction equipment, machinery, and surplus materials. Safety: CONTRACTOR shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of the Work. CONTRACTOR shall comply with all applicable laws, ordinances, rules, regulations, and lawful orders of public authorities related to safety of persons or property. Disposal Manifests: CONTRACTOR shall provide to the CLIENT Contact copies of all records (e.g., manifests, disposal facility receipt, etc.) which indicate that CONTRACTOR has disposed of any and all equipment, including lamps, and ballasts. Completion of Work: After CONTRACTOR has performed all Work, CONTRACTOR shall submit a written Notice of Final Completion to the Facility's CLIENT Contact as described in Exhibit C. Compliance: CONTRACTOR shall ensure that all Work complies with current local, state, and federal construction and environmental codes and regulations. Agreement 3 72 pexFacility Solutions • Efficiency Solutions • Arena Solutions 7.0 ACCEPTANCE Authority: The CLIENT Contact shall have final authority to review and approve specifications, drawings, and related documents concerning the Work, to approve and accept all equipment, materials and services, and to approve CONTRACTOR's invoices for payment. No approval by the CLIENT will act as a waiver of the CLIENT's rights hereunder or relieve CONTRACTOR of its obligations hereunder. Construction Documents: During the construction period, CONTRACTOR shall keep copies of Construction Documents at the Facility for review by CLIENT at all reasonable hours and shall provide a complete set to the CLIENT upon completion of each portion of the work. Satisfactory Performance: Within fifteen (15) Working Days of receipt of an invoice, CLIENT shall have the right to review the Work performed by CONTRACTOR on the Facility, for purposes of determining whether the Work is deemed satisfactory. Where CLIENT finds the Work performed by CONTRACTOR unsatisfactory, the CLIENT Contact shall provide CONTRACTOR with a written notice of unsatisfactory Work within fifteen (15) Working Days of its receipt of CONTRACTOR's invoice. CONTRACTOR shall cure the work within ten (10) Working Days after receiving the CLIENT Contact's notice of unsatisfactory Work. When the invoiced Work has been completed to the satisfaction of the CLIENT Contact, the CLIENT Contact shall approve the invoice for payment. Work Completion: Upon receipt of the written Notice of Work Completion and project completion documents by CONTRACTOR (as described in Exhibit B), the CLIENT Contact shall review all Work and all project completion documents within fifteen (15) Working Days. Upon approval of all Work and project completion documents, the CLIENT Contact shall send the dated Certificate of Final Completion (Exhibit C) to all parties. In the event the CLIENT reasonably determines that additional work is required to complete the project, it shall inform CONTRACTOR, and CONTRACTOR shall perform the additional work in accordance with a mutually agreed upon prompt schedule. 8.0 CHANGE AND EXTRA WORK Amendments of Agreement and Exhibits: The Parties expressly recognize, prior to the Completion Date, that there may be Change or Extra Work, either at the request of CLIENT, at the suggestion of CONTRACTOR, or as the result of an "act of God "; but in each event upon a mutual agreement that the proposed Change or Extra Work is proper. The Parties also recognize that the correct interpretation and administration of this Agreement depends in large part on the accuracy of all of the exhibits attached hereto, which may need to be amended according to the type of Change or Extra Work agreed to by the Parties, and therefore the Parties agree to amend this Agreement or the exhibits hereto as appropriate to reflect the agreed upon Change or Extra Work. Any "Change" or "Extra Work" providing for price, energy savings guarantee, or project schedule adjustments or relief will be made in accordance with the procedures established herein. CLIENT Initiated: CLIENT, at any time prior to the Completion Date, may propose "Changes" or "Extra Work" in writing. CONTRACTOR shall respond by submitting to CLIENT a proposed written proposal containing the initial cost, annual energy and annual utility, operational and maintenance cost savings, payback period, and a schedule for completion of the Change or Extra Work within ten (10) Working Days of CLIENT's request. CONTRACTOR shall perform the Changes or Extra Work only upon receipt of CLIENT's approval of the written proposal and after execution of an amendment to this Agreement when an amendment is required for performance of the Extra Work or Changes. Any Change or Extra Work performed by CONTRACTOR which is not approved by CLIENT in writing shall not be approved for payment and will not be included in the final scope of Work. The Parties will amend this Agreement accordingly. CONTRACTOR Initiated: CONTRACTOR, at any time prior to the Completion Date, may propose "Changes" or "Extra Work" in writing. CONTRACTOR shall submit to CLIENT a written proposal that explains the circumstances for the change, initial cost, annual energy and utility, operational and maintenance cost savings, payback calculations and a schedule for completion of the Change or Extra Work CLIENT may accept or reject the request within ten (10) Working Days. Failure by CLIENT to respond within ten (10) Working Days to the proposed change order shall be deemed a rejection by CLIENT. CONTRACTOR shall perform the Changes or Extra Work only upon approval by CLIANT and receipt of the written proposal, and after execution of an Agreement 4 73 a pex Facility Solutions • Efficiency Solutions • Arena Solutions amendment to this Agreement when an amendment is required for performance of the Extra Work or Changes. The Parties will amend this Agreement accordingly. 9.0 COMPENSATION AND PAYMENT Total Obligation: The CLIENT's total obligation under this Agreement and it's exhibits, including compensation for mobilization, engineering, permits, utility interconnection, and prepayment of the power purchase agreement shall be One dollar. ($1.00). Invoices: CLIENT will pay CONTRACTOR after CONTRACTOR presents an invoice for the work completed and the CLIENT Contact accepts the invoice. Invoices must be submitted timely and according to the schedule contained in Exhibit B. Payment shall be made within 30 days following the receipt of a correct and proper invoice for the completed delivery of the product or services. If the invoice is incorrect, defective, or otherwise improper, CLIENT will notify CONTRACTOR within ten (10) Working Days of discovering the error. Conditions of Payment: All services provided by CONTRACTOR under this Agreement must be performed to CLIENT's satisfaction, in accordance with all applicable federal, state, and local laws, ordinances, rules, and regulations. CONTRACTOR will not receive payment for Work found by CLIENT to be unsatisfactory or performed in violation of federal, state, or local law. 10.0 CONTRACTOR'S ENERGY SAVINGS GUARANTEE Guarantee Term: The term of CONTRACTOR's Guarantee shall be the Term of the Agreement and shall survive any earlier cancellation or termination of this Agreement. CONTRACTOR's guarantee will be terminated if the Technical Services Agreement - Performance Assurance Services are cancelled by the CLIENT. Total Guaranteed Savings: CONTRACTOR guarantees that the amount to be saved in utility, operation and maintenance costs over the term of this Agreement shall be at least the "Total Guaranteed Savings" as set forth in Exhibit E which Total Guaranteed Savings are sufficient to satisfy the total debt service payment required under the debt obligation. Annual Meetings: CLIENT and CONTRACTOR shall meet at least once annually for the purpose of, reviewing utility loads, changes in utility rates, operating hours and maintenance issues of equipment installed under this contract, for the previous Guarantee Year. At each annual meeting, CLIENT will provide CONTRACTOR with the applicable utility rates for the previous Guarantee Year. The Parties agree to hold the Annual Meeting within thirty (30) Working Days after the final month of each Guarantee Year. In the event of chronic or material equipment failure, CLIENT and CONTRACTOR will meet within a reasonable time after a request by the CLIENT to discuss a timely cure for the failure. Guarantee Reconciliation: While within the guarantee term, CONTRACTOR shall perform a guarantee reconciliation at the end of each Guarantee Year and submit a guarantee reconciliation report with updated Exhibits E2 and E3 to the CLIENT Contact within forty-five (4S) Working Days of each Guarantee Year anniversary, and at the Guarantee Term End Date. CONTRACTOR shall calculate the Total Actual Savings as set forth in Exhibit E3 for the immediately previous Guarantee Year. In the event that the Total Actual Savings realized by CLIENT are less than the Guaranteed Savings, CONTRACTOR shall remit an amount equal to such deficiency to CLIENT within forty-five (45) Working Days of the guarantee reconciliation submittal. Survival: This Section 10.0 survives the termination of the Agreement and terminates only upon Completion by CONTRACTOR of a final Guarantee Reconciliation and final payment of any savings deficiencies. CONTRACTOR's guarantee will be terminated if the Technical Services Agreement - Performance Assurance Services are cancelled by the CLIENT. 11.0 CLIENT RESPONSIBILITIES CLIENT agrees to perform the following tasks in addition to those set out in Exhibit G of this Agreement: Daily Operations: After acceptance by CLIENT of the Work performed by CONTRACTOR, CLIENT shall be responsible for all routine maintenance as set out in the original equipment manufacturer's documentation provided by CONTRACTOR to the CLIENT. Exhibit D contains a set of operating parameters that need to be Agreement 5 74 pexFacility Solutions • Efficiency Solutions • Arena Solutions maintained to obtain the Utility Cost Savings and the Operation and Maintenance Cost Savings outlined in Exhibit E1. Automatic Functions: To protect public health and safety, or CLIENT property, CLIENT may manually override any automatic function provided by CONTRACTOR's equipment furnished hereunder, or make changes in operating procedures specified. In that event, the Parties shall make the necessary changes to the established baseline. Access CLIENT shall grant CONTRACTOR reasonable access to the Facility to perform CONTRACTOR's Verification Responsibilities. Energy Management System: CLIENT shall provide standard energy management system reports to CONTRACTOR for Guarantee Reconciliation when requested by CONTRACTOR. 12.0 INSURANCE CONTRACTOR shall maintain in full force and effect, at its expense, property, casualty, worker's compensation and liability insurance as specifically described in Exhibit J. The insurance is for the benefit of the Facility. In the event of loss or damage to the property under this Contract, loss payment will be made in favor of the Facility. 13.0 ASBESTOS /HAZARDOUS MATERIALS CONTRACTOR shall have no obligation to remove asbestos or other hazardous materials encountered during the Work performed under this Agreement. Any removal of asbestos or other hazardous material shall be the sole responsibility of CLIENT. In the event CONTRACTOR encounters asbestos or other hazardous material, CONTRACTOR shall stop all Work immediately and shall notify CLIENT at once to determine the appropriate action. Any delay in completion of the Work according to the completion schedule in Exhibit I caused by CONTRACTOR's encounter with asbestos or other hazardous material and CLIENT's determination of appropriate action to correct the situation shall not constitute an Event of Default. Where a delay under this section will be for a significant amount of time, as determined by the parties, but where the Work under this Agreement is otherwise substantially complete, the parties agree to amend this Agreement appropriately so that payment hereunder can begin notwithstanding the delay caused hereunder. 14.0 INDEMNIFICATION CONTRACTOR shall defend, indemnify and save and hold harmless CLIENT, its agents and employees, from and against any and all claims, demands, or causes of action, and damages, including all attorney's fees incurred by CLIENT, arising out of the performance of this Agreement by CONTRACTOR or CONTRACTOR's agent, employees, or subcontractors, except for gross negligence by CLIENT. This section shall not be construed to bar any legal remedies CONTRACTOR may have for CLIENT's failure to fulfill its obligations pursuant to this Agreement. 15.0 PERFORMANCE AND PAYMENT BONDS CONTRACTOR shall furnish performance and payment bonds (the "Bonds "), each in amounts equal to the Construction Cost. The Bonds shall cover completion of the physical work per the approved design, and shall not cover any design obligation or any guarantee or warranty of efficiency or system performance. The Bonds shall not cover any obligation of the contractor to ensure that the work as constructed will result in any particular level of energy savings. Any suit on the Bonds must be brought within the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit. Payment Bond is intended for the use and benefit of all persons furnishing labor and materials who are engaged by CONTRACTOR. Performance Bond is intended for the use and benefit of the CLIENT to complete the work as described in Exhibit A. These bonds shall be released within thirty (30) Working Days of the Completion Date. The surety for each such bond shall be an insurance company or corporate surety licensed to do business in the state of Minnesota. The bonds shall contain a provision requiring reasonable advance notice to CLIENT in the event that CONTRACTOR is in default of any obligation in relation to the bond. 16.0 REPRESENTATIONS AND WARRANTIES CONTRACTOR warrants and represents to CLIENT as follows: Agreement 6 75 Apex Facility Solutions • Efficiency Solutions • Arena Solutions A. It has all requisite power, authority, licenses, permits, and franchises, corporate or otherwise, to execute and deliver this Agreement and perform its obligations hereunder. B. Its execution, delivery, and performance of this Agreement have been duly authorized by, and are in accordance with, its organic instruments; this Agreement has been duly executed and delivered for it by the signatories so authorized; and it constitutes its legal, valid and binding obligation. C. Its execution, delivery, and performance of this Agreement will not result in a breach or violation of, or constitute a default under, any agreement, lease or instrument to which it is a party or by which it or its properties may be bound or affected. D. It has not received any notice, nor to the best of its knowledge is there pending or threatened any notice, of any violation of any applicable laws, ordinances, regulations, rules, decrees, awards, permits or orders which would materially adversely affect its ability to perform hereunder. E. It has made secure provisions for promptly paying all its suppliers and subcontractors in connection with this Agreement. F. It has prepared the Engineering Report in good faith based on generally accepted engineering practices and mathematical formula. G. It has all right, title and interest in, or appropriate licenses to use, any intellectual property required by this Agreement to be installed, employed, or modified. H. The services performed under this Agreement will be of high professional standards and quality. To the extent consistent with other specific terms and warranties of the Agreement, CONTRACTOR further represents that all services and goods provided under this Agreement: (i) are free from defects in material and workmanship; (ii) are of the quality, size and dimensions ordered; (iii) are fit for the particular needs and purposes of the CLIENT as may be communicated to CONTRACTOR; (iv) comply with all warranties and representations expressed by CONTRACTOR orally or in any written advertisement, correspondence, response to the CLIENT's RFP or RFI, or other document provided to or in the possession of the CLIENT; (v) comply with all applicable laws, codes and regulations. CONTRACTOR's Warranty/Assignment of Manufacturer's Warranty: CONTRACTOR expressly warrants to CLIENT that all equipment (including the material supplied by CONTRACTOR) installed as part of this Agreement are new, in good and proper working condition and all Work performed under this Agreement shall be free from material defects and protected by appropriate written warranties covering all parts and equipment performance. CONTRACTOR agrees to deliver all warranty documentation to the CLIENT Contact as required in Section 4.10. CONTRACTOR agrees that CLIENT will pursue rights and remedies against manufacturer for equipment under warranties in the event of equipment malfunction or improper or defective function, and defect in parts, workmanship and performance. CONTRACTOR agrees to cooperate with CLIENT in enforcing warranties. All warranties shall be transferable and extend to CLIENT. The warranties shall specify that only new and non - re- conditioned parts may be used and installed when repair is necessitated by malfunction. All warranties required hereunder shall be in force for a minimum of one year from the date of final completion per Exhibit C. 17.0 EVENTS OF DEFAULT Default by CLIENT. Each of the following events or conditions shall constitute an "Event of Default" by CLIENT: A. Failure to make payments in accordance with this Agreement. B. Any other material failure to perform or comply with the terms and conditions of this Agreement, including breach of any covenant or duty contained herein, provided that such failure continues for thirty (30) Working Days after written notice to CLIENT demanding that such failure to perform be cured or, if cure cannot be effected in such thirty (30) Working Days, without commencement of a cure and diligent Agreement 7 76 ApexFacility Solutions • Efficiency Solutions • Arena Solutions subsequent completion thereof. In the event the default is cured within said periods, this Agreement shall remain in full force and effect Default by CONTRACTOR: Each of the following events or conditions shall constitute an "Event of Default" by CONTRACTOR: A. The installation of the materials and equipment is not completed in a timely or satisfactory manner, according to the terms of this Agreement, provided however that CONTRACTOR shall have thirty (30) Working Days from receipt of written notice that it is in default to cure said default. In the event the default is cured, this Agreement shall remain in full force and effect. B. Any representation or warranty furnished by CONTRACTOR in this Agreement, which is false or misleading in any material respect when made. C. Any other material failure by CONTRACTOR to perform or comply with the terms and conditions of this Agreement, including breach of any covenant or duty contained herein, provided that such failure continues for thirty (30) Working Days after written notice to CONTRACTOR demanding that such failure to perform be cured, or if cure cannot be effected in such thirty (30) Working Days, without commencement of a cure and diligent subsequent completion thereof. In the event the default is cured within said period, this Agreement shall remain in full force and effect. 18.0 REMEDIES UPON DEFAULT Default by CLIENT. Upon the occurrence of an Event of Default by CLIENT, CONTRACTOR may elect to enforce one or more of the following remedies: A. Terminate this Agreement by delivery of a notice declaring termination, whereupon CONTRACTOR may enter the premises on which the Services are being performed and remove CONTRACTOR's property; B. Seek damages in the amount of all payments, then or thereafter owing from CLIENT to CONTRACTOR pursuant to this Agreement, together with all costs and expenses reasonably incurred in exercise of its remedies (including reasonable attorneys' fees and court costs) in seeking and enforcing any or all of the remedies provided in this section; C. Seek specific performance of the terms and conditions of this Agreement to the extent permitted by law, including without limitation injunctive relief where appropriate; and /or D. Suspend further provision of the Services. If delivery of the Services has been suspended as a result of CLIENT's default and CLIENT and CONTRACTOR agree to arrange for the reinstatement of the delivery of the Services, CLIENT shall pay to CONTRACTOR a performance reinstatement fee in such amount or amounts, and payable on such date or dates as shall be reasonably acceptable to CONTRACTOR, as will reimburse CONTRACTOR for its actual costs (including overhead) to be incurred in reinstating delivery of the Services; provided, however, that nothing herein shall obligate CONTRACTOR to reinstate the delivery of Services. Default by CONTRACTOR: Upon the occurrence of an Event of Default by CONTRACTOR, CLIENT shall have the right to: A. Terminate the Agreement by delivering a notice declaring termination (permitting CONTRACTOR to enter the Premises and remove all of its Property); and /or B. Seek specific performance of the terms and conditions of this Agreement to the extent permitted by law, including without limitation injunctive relief where appropriate; C. Seek damages in the amount of all payments, then or thereafter owing from CONTRACTOR to CLIENT pursuant to this Agreement, together with all costs and expenses reasonably incurred in exercise of its remedies (including reasonable attorneys' fees and court costs) in seeking and enforcing any or all of the remedies provided in this section; Agreement 8 77 pexFacility Solutions • Efficiency Solutions • Arena Solutions 19.0 TERMINATION For Uncured Breach: Either party may terminate this Agreement thirty (30) days after written notice to the other party of any material breach of this Agreement by such party that has not been cured within such thirty (30) day period (an "Event of Default "). The notice must set forth the nature of the breach with reasonable specificity. Notwithstanding the foregoing, CONTRACTOR shall have the right to terminate this Agreement if CLIENT fails to pay any amounts due hereunder within five (5) days after written notice. Bankruptcy: In addition to Section 19.0 and any other rights it may have at law or in equity, either party may terminate and without liability suspend all activity related to this Agreement immediately if the other party is adjudicated a bankrupt, ceases to do business as a going concern, makes an assignment for the benefit of creditors, permits the appointment of a receiver, or otherwise avails itself of or becomes subject to any bankruptcy or insolvency statute. 20.0 GENERAL PROVISIONS Governing Law, Jurisdiction and Venue: This Agreement is governed by the laws of the State of Minnesota. The venue for any proceedings is agreed to be in CLIENT's County, State of Minnesota, and CONTRACTOR consents to such jurisdiction. CONTRACTOR shall incorporate the requirements of this Section in its agreements with subcontractors, consultants, and independent contractors in connection with this Agreement. Conditions Beyond Control of CONTRACTOR: Neither party will be responsible for any failure to comply with, or for any delay in performance of, the terms of this Agreement where the failure or delay is due to acts of God or the public enemy, war, riot, embargo, fire, explosion, sabotage, flood, strikes, labor disputes, default of subcontractors, accident, or, without limiting the foregoing, any circumstances of like or different character beyond its control (collectively, "Force Majeure Event "). If either party is unable to perform under this Agreement for more than sixty (60) due to a Force Majeure Event, then the other party may terminate this Agreement upon fifteen (15) days' written notice. Notices and Changes of Address: All notices to be given by either party to the other shall be in writing and must be either delivered in person or mailed by registered or certified mail, return receipt requested, addressed as follows: To CONTRACTOR: Apex Efficiency Solutions, SBC 403 Jackson Street, Suite 308 Anoka, MN 55303 Attn: Mark Rasmussen To the CLIENT: City of Columbia Heights 590 401h Avenue NE Columbia Heights, MN 55421 Attn: City Manager Or such other addresses as either party may hereinafter designate by a written notice to the other Successors and Assigns: CONTRACTOR binds itself jointly and severally, his successors, executors, and administrators to CLIENT in respect to all covenants of this Agreement. CONTRACTOR shall not assign or transfer any part of its interest in this Agreement. Permits: CONTRACTOR shall be responsible for obtaining all governmental permits, consents, and authorizations as may be required to perform it obligations hereunder. Agreement g 78 pexFacility Solutions • Efficiency Solutions • Arena Solutions Compliance by CONTRACTOR's Subcontractors and Consultants: CONTRACTOR shall provide and require in all of its contracts or subcontracts with other parties who provide services in regard to performance of this Agreement that such subcontractors, consultants, or other parties contracting with CONTRACTOR with regard to performance of this Agreement shall comply with those requirements of Minnesota law specified herein and otherwise required of persons performing work for the CLIENT of the type contemplated under this Agreement. No Waiver: The failure of CONTRACTOR or CLIENT to insist upon the strict performance of the terms and conditions hereof shall not constitute or be construed as a waiver or relinquishment of either parry s right to thereafter enforce the same in accordance with this Agreement in the event of a continuing or subsequent default on the part of CONTRACTOR or CLIENT. The waiver of any default by either party shall not be deemed a continuing waiver, but shall apply only to the instance to which such a waiver is directed. Complete Agreement: This Agreement, when executed, together with all exhibits attached hereto as provided for by this Agreement, shall constitute the entire agreement between both parties and this Agreement may not be amended, modified or terminated except in writing signed by the parties hereto. The terms and conditions contained in this Agreement shall govern and shall take precedence over any different or additional terms and conditions which CONTRACTOR may have included in any documents attached to or accompanying this Agreement. Any handwritten changes on the face of this document shall be ignored and have no legal effect unless initialed by both parties. Severability: In the event that any clause or provision of this Agreement or any part thereof shall be declared invalid, void or unenforceable by any court having jurisdiction, such invalidity shall not affect the validity or enforceability of the remaining portions of this Agreement unless the result would be manifestly inequitable or unconscionable. Recitals: The background recitals set forth at the beginning of this Agreement are expressly incorporated into and made an integral part of the body of this Agreement and the terms of the Recitals fix the obligations of the parties and are binding upon them in the same way and to the same extent as all other provisions of this Agreement. Headings: The headings of all provisions are for ease of reference only. The headings in no way define, limit or describe the scope, intent or obligations of the provisions of this Agreement and therefore are not to be used in construing this Agreement. Amendments: Amendments to this Agreement shall be valid only if they are in writing and are signed by the same parties, or their successors in office, who signed the original Agreement. Limitation on CLIENT Liability: In no event shall the parties be liable to one another for any indirect, consequential, incidental, lost profits or like expectancy damages arising out of this agreement. Ownership of Works and Intellectual Property Rights: For the purposes of this paragraph, the term "Works" includes creative writings, research data and reports, writings, sound recordings, pictorial reproductions, drawings, film and video recordings, and other graphical representations, software, business methods, inventions, improvements, and discoveries, and works of any similar nature (whether or not eligible for copyright, trademark, patent or other proprietary rights), which are to be prepared for the CLIENT and delivered under this Agreement. It does not include any of CONTRACTOR's background intellectual property. Ownership of the Works and all copyrights, trademarks, patents and other proprietary rights in the Works shall be owned exclusively by CONTRACTOR. The CLIENT agrees that all copyrightable Works shall be considered a "work made for hire" and that the CONTRACTOR is the author of and owns all rights in and to the Works. Notwithstanding the foregoing, the CLIENT shall have a license to utilize the Works to maintain its equipment or to complete the Work in the event of a termination of CONTRACTOR for cause. The CLIENT shall not have a license to use the Works for any other project. Agreement 10 79 ApexFacility Solutions • Efficiency Solutions • Arena Solutions IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed intending to be bound thereby. CLIENT: By: Its: CONTRACTOR: By: Date: Agreement 11 80 pexFacility Solutions • Efficiency Solutions • Arena Solutions Exhibit A Scope of Work Scope of work includes: • Mobilization costs for startup and construction of the system. • Engineering including roof analysis, electrical analysis and other engineering as required for proper installation and permitting requirements. • Permits required for construction activities on solar system construction • Work and fees required for utility interconnection of solar systems to the utility grid. All other scope required for complete installation and operation of PV systems are included in PPA in Exhibit K. Exhibit A 1 81 Apex Exhibit B Schedule of Payments Facility Solutions • Efficiency Solutions • Arena Solutions Exhibit B 1 82 ' Mobilization Engineering, Permits & Utility Interconnect 1 Total Payments $1 $1 Exhibit B 1 82 pexFacility Solutions • Efficiency Solutions • Arena Solutions CERTIFICATE OF FINAL ACCEPTANCE (Commencement of Commercial Operation) Pursuant to the Agreement, by and between the CONTRACTOR and the CLIENT, the CLIENT does hereby acknowledge the following: 1. Completion and Acceptance. The CLIENT agrees that the Work specified in the agreement and any applicable amendments thereof have been completed by the CONTRACTOR and are hereby accepted by the CLIENT. 2. Project Completion Documents. The CLIENT has received four (4) copies of the following project completion documents a) Final detailed project costs b) All amended exhibits C) All as -built documentation d) Operating manual including vendor cut sheet giving general instructions and installation instructions, name plate data, parts list along with local service representative and pricing sheet, detailed system description with operating instruction, and detailed adjustment instructions including alignments, tolerances, etc. e) Manufacturer warranty documentation and information including contact names and telephone numbers. 3. Energy Conservation Measure (ECM) Approval. ECM Description Client Approval Signature Date Solar Power Generation System Exhibit C 1 83 pexFacility Solutions • Efficiency Solutions • Arena Solutions GENERAL This section identifies the terms and conditions for savings guarantees for this Agreement. GUARANTEED SAVINGS CALCULATION Apex guarantees that the systems shall product the following amount of energy on an annual basis: • Library (135 kW system) - 158,000 kWh annually • Public Works (85 kW system) - 99,000 kWh annually • Public Safety (101 kW system) - 118,000 kWh annually • Top Valu 1 Made In Minnesota system (40 kW system) - 46,100 kWh annually UTILITY COST SAVINGS ADJUSTMENT In the Measurement and Verification reports we will provide cost savings data with the energy savings guarantee calculated as outlined below. For the purpose of calculating savings under this guarantee, utility rates used will be the base rates paid by the Client subject to the following: The base rate shall be stipulated at $.105 per kWh escalated at 2.5% annually. This rate represents the value of solar energy to the Client. Exhibit D 84 pexFacility Solutions • Efficiency Solutions • Arena Solutions Not Used Exhibit E 85 pexFacility Solutions • Efficiency Solutions • Arena Solutions Measurement and Annual Reporting Scope of Services: The CONTRACTOR shall provide the services identified in the summary table included in this section: An annual report will be prepared and presented to the Client showing actual energy generated by the systems and compared to the guaranteed energy production amount. CONTRACTOR's Equipment: The CONTRACTOR may provide tools, documentation, panels, or other equipment in the facility for the CONTRACTOR's convenience in performing the CONTRACTOR's Measurement and Verification Responsibilities. That equipment shall remain the CONTRACTOR's property. The CONTRACTOR retains the right to remove such items at any time during the term, or upon the termination of CONTRACTOR's Measurement and Verification Responsibilities. Exhibit F 86 pexFacility Solutions • Efficiency Solutions • Arena Solutions Owner (CITY) Responsibilities Scope of Services: The CONTRACTOR shall provide the services identified in the summary table included in EXHIBIT A. The CLIENT hereby agrees to assume the following responsibilities as part of this Agreement: 1. Notification of Problems. The CLIENT shall promptly notify the CONTRACTOR of any system or building changes, which may impact the CONTRACTOR's ability to meet its obligation in Exhibit E. 2. Current Responsibilities. The CLIENT shall perform the following work before the Completion Date: • Be available for a project kick off meeting and project completion meeting • Be available for any on -site safety concerns as they may arise during project construction • CLIENT to make the CONTRACTOR aware of any specific customer site conditions that will need to be adhered to during the construction phase of the project. 3. Provide the CONTRACTOR copies of all Utilities (gas, agri - fuels, oil, water, and electric bills) upon request. 4. Provide the CONTRACTOR with the following information: • Major schedule changes within 72 hours of occurrence • Major Facility Construction /Remodeling /Expansion changes or plans S. Discuss with the CONTRACTOR before any changes with respect to utility deregulation or any proposed utility agreements, as it pertains to the facilities within this contract. 6. Provide the installation and monthly cost of electronic access (internet or dedicated telephone line) used by the solar metering and monitoring system for on -line analysis, data transfer, and trouble- shooting between the CONTRACTOR and the facilities. Exhibit G 87 pexFacility Solutions • Efficiency Solutions • Arena Solutions GENERAL REQUIREMENTS 1. CONTRACTOR'S USE OF PREMISES The CONTRACTOR shall limit his or her use of premises for work and storage to allow for facility occupancy in all areas. The CONTRACTOR shall assume full responsibility for the protection and safekeeping of products under this contract stored on the site and shall move any products under his or her control that interfere with Facility operations. Z. BUILDING OCCUPANCY The CONTRACTOR shall cooperate with the CLIENT to establish work schedules if disruption is necessary in any area. 3. ENERGY SYSTEM DISRUPTION The CONTRACTOR shall consult with the CLIENT prior to disrupting any energy systems. 4. STORAGE OF MATERIALS The CONTRACTOR shall make arrangements with CLIENT to provide for the storage of materials on the job site. If such arrangements cannot be made, CONTRACTOR shall provide facilities necessary for storage. This may also include crew quarters and lunchroom facilities if necessary. All CONTRACTOR storage areas must be confined to the area designated by the CLIENT. S. RECEIVING, HANDLING, AND STORAGE The CONTRACTOR shall receive from carriers at the CLIENT and check, unload, handle and store all materials and equipment that are to be incorporated in the construction under these Specifications. The CONTRACTOR shall be responsible for the prompt unloading of materials and equipment. The CONTRACTOR shall provide all storage facilities for CONTRACTOR- furnished materials and equipment. The CONTRACTOR MAY NOT use the CLIENT receiving area, personnel or equipment to receive any materials unless approved by the CLIENT. 6. TEMPORARY LIGHT, POWER AND WATER The CLIENT will furnish all AC electricity and water. However, the CONTRACTOR shall furnish and pay for any /all temporary conduit, wiring and piping, as may be required from the nearest available point of service and shall remove same upon completion of the Work at no cost to the CLIENT. CLIENT shall be responsible for costs of utility usages and demand for connections to the CLIENT's systems. 7. SANITARY FACILITIES The CONTRACTOR shall make arrangements with the CLIENT for the use of sanitary facilities and shall be responsible for the cleanliness and conditions of said facilities until completion of the project. The CONTRACTOR shall remove any workman creating a nuisance on the premises from the site. 8. DEMOLITION AND REMODELING WORK: The CONTRACTOR shall remove existing equipment and materials noted on the Drawings or in the Specifications to be removed or as required for the installation of new construction. Dust, noise and vibration shall be controlled and held to a minimum. Demolition work shall be coordinated and conducted in a manner that will not interfere with the normal operation of the adjacent work areas. This work shall be planned in advance with the CLIENT. 9. PARKING Parking will be available as designated by the CLIENT. 10. CLEAN -UP AND RESTORATION OF DISTURBED AREAS The CONTRACTOR shall be responsible for cleaning all work areas. Interiors - at the end of each day or shift, the CONTRACTOR shall pick -up, sweep or vacuum the work area to prevent tracking dirt through the facility. Damage to the facility including equipment, structures or the CONTRACTOR at his or her cost must restore finish. Exterior - all sidewalk and other areas must be clear of excavated material and equipment. The walk areas must be swept clean to prevent tracking into building. Excavation must be well barricaded and lit at night. Exhibit H 1 88 pexFacility Solutions • Efficiency Solutions • Arena Solutions The CONTRACTOR must repair any damage to blacktop, concrete or grass areas from excavation or equipment. Grass areas must be repaired by excavation and replacing black dirt to 12 inches below grade and sodding the area. 11. Environmental Attributes and Incentives a. Environmental Attributes. Seller shall have all right, title, and interest in and to all Environmental Attributes related to the System. At Seller's expense, Purchaser agrees to cooperate with Seller in any applications for Environmental Attributes related to the System. b. Environmental Incentives. Seller shall have all right, title, and interest in and to all Environmental Incentives related to the System. Any Environmental Incentive related to the System that is initially credited or paid to Purchaser shall be assigned by Purchaser to Seller without delay. At Seller's expense, Purchaser agrees to cooperate with Seller in any applications for Environmental Incentives related to the System. c. Impairment of Environmental Attributes and Incentives. Neither Party shall take any action or suffer any omission that would have the effect of impairing the value of the Environmental Attributes and Environmental Incentives. Exhibit H 2 89 G 0 0 T U G N U W r G O O U w X CL Q MI �I V V .O .7 k W rn r 10 0 ti d' a N a w a n v � N n. n N W r r N d a � tp y b t0 N � y A a 0 N m. Z Z ro E E N d. O. � C c v N � M O' m � c Z m 0 E c c n M,N a T 1 N � - -' LL lD 1p t0 lD w Yi E E �I — '• :> O a � a a a m I - O m u I m c i o E c 3 c E ! o c ID E _ a Q N O _ d ti L O W�LL � C O •o ti N n .-i N m v �n �o n •' o pexFacility Solutions • Efficiency Solutions • Arena Solutions Exhibit J Insurance The CONTRACTOR, at its expense, shall maintain the following insurance for the duration of this Agreement. COM—Pf -- OR agrees el 01 tlm•n d1ifIng: thEr germ Al IN't A_ neernrre b have aid Mmp i-1 fare Ins=rm, chra gear a sdfwfis ram. o VrrrGMm nr Z%rpevm!e_ insurawe poky, as fuikm& _. Cno'- pnMcinl i'is!nprol I inttiity atsa ll list Itasca Count', as er• dd[Ak - al bt,urad w1Ahttw to,lowing irmi- r- - -ma t'mis AIL, Genaral A.ggmgotc $3,OOD.M P xluct�-- ComP+eled Cpa atirAls Agariivato $3,000 000 191` M, rPA Adwertisirg IrKUry $1,5(DG.rrOo Earn 0Yi .)".nre' Combino h ec dFr Jr4:,rr and PhVerty r'.FFmtwgr $.1,501(coo Limits 6. A,UWI'aUW JidWy - Cumtw ud. tdrglu 41nt: ewh eccurmnc-i tor todijy ini" af)u prcimty uamay` o%�ing nwrred, ncn- n>xn�r iRra tijmd au^cw-aNig6 VISEM -1000 c. Yaorker5' Cvnry�r :saGa� arrrJ Eat►ulw}ror "R C iial�lf:y� St31Wt4ry Urn4w ti the Crtntraelar is hand twW& lhf? mete r1F Mimesu?a. a)verego r►a.;st apolg to vimesaia laws :tilts ti 8. �rnlalcyer'9 l?�haN Updoy "wry by, ALaJdarFt - Eac;i Accident Mi,'1Cd rttar Ilistbase - Pt%cy Last MVIOW ©isear;,e -Each t. "PlMye...e MAW The CONTRACTOR shall provide to the CLIENT certificates of insurance evidencing compliance with the requirements within 15 days after this Agreement is signed. The certificates will show the CLIENT as an additional insured on the insurance coverage's. Exhibit J 92 Apex Exhibit K Facility Solutions • Efficiency Solutions - Arena Solutions Exhibit K Rooftop PPA 93 SOLAR PHOTOVOLTAIC SYSTEM POWER PURCHASE AGREEMENT This Solar Photovoltaic System Power Purchase Agreement ( "Agreement ") is made and entered into as of , 2015 ( "Effective Date "), by and between New Energy Equity, LLC, a Maryland limited liability company ( "System Owner "), and City of Columbia Heights, a municipal corporation located at 590 40th Ave. NE Columbia Heights, Minnesota ( "Host Customer "). Each of System Owner and Host Customer may be referred to herein as a "Party" and collectively, as the "Parties." RECITALS WHEREAS, Host Customer owns and controls certain properties located in Columbia Heights, Minnesota which use electricity ( "Premises "); WHEREAS, System Owner is willing to design, install, insure, own, operate and maintain a solar photovoltaic electric generating system ( "System "), on Premises; WHEREAS, the System would satisfy a portion of Host Customer's electricity requirements at Host Customer's Premises, and System Owner desires to sell and Host Customer desires to purchase all of the electricity generated by the System ( "Output "); WHEREAS, Host Customer is willing to provide System Owner with access to, and the right to occupy a portion of, its property for the purpose of having the System Owner design, install, operate and maintain the System; WHEREAS System Owner and Host Customer agree that System Owner will obtain and retain all Environmental Credits and all Financial Incentives and Tax Benefits associated with the installation, ownership, operation and Output of the System; NOW, THEREFORE, in consideration of the agreements and covenants hereinafter set forth, the Parties hereby covenant and agree as follows: ARTICLE I DEFINITIONS AND INTERPRETATION 1.1 Definitions "Agreement" means this Solar Photovoltaic System Power Purchase Agreement, as the same may be modified or amended from time to time in accordance with the provisions hereof. "Ancillary Services" means any supplemental services necessary to support the transmission of electric power from a seller to a purchaser and available from the System from time to time, whether existing as of the Effective Date or thereafter. 94 "Capacity" means electrical capacity that is dependent upon the availability and operation of the System, measured in kilowatts. "Contractors" means the independent contractors engaged by System Owner to perform any of System Owner's obligations hereunder and shall include the independent contractors subcontracted by independent contractors engaged by System Owner as set forth in Section 4.4. "Defaulting Party" means the Party responsible for an uncured Event of Default "Delivery Point" means the physical location where the System connects to the Site Electrical System. "Dispute" means a dispute as defined in Section 18.1. "Disruption of Delivery" means a disruption of delivery when the System Owner is capable of generating and delivering Output to Host Customer as set forth in Section 11.3. "Due Date" means the due date that Host Customer must pay an invoice for Output as set forth in Section 9.6.1. "Effective Date" means the date of execution of this Agreement. "Environmental Credits" means any and all federal, state or local renewable energy or emissions credits, offsets, or green tags, whether related to any renewable portfolio standard, renewable energy purchase requirement, carbon cap or trade market, or otherwise, whether existing as of the Effective Date or enacted thereafter and whether available to System Owner as owner of the System or producer of Output or available to Host Customer as the purchaser or user of Output. "Event of Default" means the events set forth in Section 15.1. "Financial Incentives and Tax Benefits" means any and all federal, state or local rebates, tax credits, energy production credits, or depreciation incentives related to any renewable portfolio standard or other renewable energy purchase requirement or otherwise, whether existing as of the Effective Date or enacted thereafter and whether available to System Owner as producer of Output or available to Host Customer as the purchaser or user of Output. "Force Majeure" shall have the meaning set forth in Section 14.1. "Force Majeure Event" means the events of Force Majeure as set forth in Section 14.1. "Host Utility" means the electric distribution company serving or connected to the Host Customer. "Indemnifying Party" means the Party responsible for indemnifying the Indemnified Parties as set forth in Section 15.3. "Installation Period" means the period commencing on the satisfaction of the pre - installation conditions of Section 3.1 and continuing to the Service Commencement Date. 95 "Late Fee" means the late fee that System Owner may impose on Host Customer for payments not made by the Due Date pursuant to Section 9.6.2. "Meter" means the standard instrument(s) and equipment installed at the Site by System Owner as part of the System to be used to measure and record the Output delivered to the Host Customer at the Delivery Point. "Net Metering Arrangements" shall have the meaning set forth in Section 4.7 herein. "Non- Defaulting Party" means the Party to whom the Defaulting Party is liable in accordance with the provisions of Article XV. "Non- Delivery Period" means the unexcused non - delivery of Output by System Owner as set forth in Section 15.1.1. "Output" means, and is limited to, the electricity produced by the System and delivered to Host Customer at the Delivery Point. "Person" means any natural person, partnership, trust, estate, association, corporation, limited liability company, governmental authority or agency or any other individual or entity. "Premises" means Host Customer's property, as described in Exhibit PPA -A. "Services" means the design, installation and testing of the System and, upon successful completion of installation and testing, the operation, maintenance and repair of the System, by System Operator as necessary to produce and delivery Output to Host Customer in accordance with the terms and conditions of this Agreement. "Service Commencement Date" means the successful completion of the installation and testing of the System with notice to Host Customer that the System is ready to deliver Output as set forth in Section 4.9. "Service Term" means the period commencing on the Service Commencement Date and continuing until the termination of this Agreement. "Site" means the area on the Premises described in Exhibit PPA -A on which the System Owner will install the System. "Site Electrical System" means Host Customer's existing building electrical systems that are owned or leased, operated, maintained and controlled by Host Customer, and which systems are interconnected with the Host Utility. "Solar Electricity Price" means the price specified in Exhibit PPA -C that Host Customer shall pay System Owner for the delivery of Output. "System" means all equipment and materials, including but not limited to photovoltaic arrays, DC /AC inverters, wiring, meters, tools, software, and any other property now or hereafter installed, owned, operated, or controlled by System Owner for the purpose of, or incidental or useful to, maintaining and modifying the use of the solar generation system and providing 96 Output to Host Customer at the Delivery Point. The System is described more particularly in Exhibit PPA -B. For the avoidance of doubt, the System specifically excludes any part of the Site Electrical System. "Tariff' means the tariff of the Host Utility that set forth the interconnection and net metering standards and requirements for the System to operate and for System Owner to deliver Output to Host Customer in accordance with terms and conditions of this Agreement. "Term" means the period of time that this Agreement shall be in effect as set forth in Article II. 1.2 Interpretation In this Agreement, unless the context requires otherwise, the singular includes the plural and the plural the singular, words importing any gender include the other gender; references to statutes, sections or regulations are to be construed as including all statutory or regulatory provisions consolidating, amending, replacing, succeeding or supplementing the statute, section or regulation referred to; the words "including," "includes" and "include" shall be deemed to be followed by the words "without limitation" or "but not limited to" or words of similar import; references to articles, sections (or subdivisions of sections), exhibits, annexes or schedules are to those of this Agreement unless otherwise indicated; references to agreements and other contractual instruments shall be deemed to include all exhibits and appendices attached thereto and all subsequent amendments and other modifications to such instruments, and references to Persons include their respective successors and permitted assigns. 1.3 Service Contract The Parties intend that this Agreement be treated as a "service contract" within the meaning of Section 7701(e) of the Internal Revenue Code. ARTICLE II TERM 2.1 The Term of this Agreement shall commence on the Effective Date and shall terminate 15 years following the Service Commencement Date, unless terminated earlier in accordance with provisions of this Agreement. 2.2 At the time that Host Customer notifies System Owner of its election pursuant to Section 12.1.6, Host Customer may request that System Owner agree to a renewal of the Agreement beyond the end of the Service Term. Any agreement to renew this Agreement shall be subject to negotiation and agreement between the Parties. 97 ARTICLE III SYSTEM DETAILED DESIGN 3.1 Pre - Installation Conditions 3.1.1 Completion of Detailed System Design At the time of the execution of this Agreement, Host Customer shall have provided System Owner with all available, necessary and up -to -date Premises, Site and Site Electrical System drawings, specifications and other documentation that System Owner may reasonably require to develop and complete a detailed System design. For this purpose Host Customer shall provide System Owner with access to the Premises and the Site to verify field conditions, and shall make appropriate staff available to answer questions and provide information required by System Owner to support the detailed design process. 3.1.2 Receipt of Required Third Party Authorizations Within ten (10) days of the execution of this Agreement, Host Customer shall have obtained or shall obtain on behalf of itself and System Owner, any and all easements, leases, licenses, consents, acknowledgments, approvals and other rights and authorizations from third parties, including entities or persons holding any mortgage or other lien or lease burdening the Premises on the Effective Date, necessary for System Owner to begin installation of the System at the Site, to install and test the System, to produce and deliver Output to Host Customer to the Delivery Point, and to own, operate and maintain the System under this Agreement. Host Customer shall obtain and forward the foregoing authorizations and approvals to System Owner as each is received. 3.1.3 Receipt of all Necessary Construction and Other Permits System Owner shall apply for, pay for, and obtain all necessary construction and other permits from local authorities and Host Utility. Host Customer shall cooperate with System Owner as necessary in the permitting process and shall apply directly for permits if necessary. System Owner shall deliver copies of all permits obtained to Host Customer upon Host Customer's request, and where applicable Host Customer shall do the same. 3.1.4 Failure to Satisfy Pre - Installation Conditions (a) If System Owner determines in its sole discretion that a pre - installation condition set forth in this Section 3.1 cannot be satisfied, or that the System as described in Exhibit PPA -B cannot be installed on the Site because the roof is structurally inadequate to support the System, the Site Electrical System is inadequate to accept the Output of the System, or architectural and other requirements are discovered that would add to the cost of the System, System Owner will notify Host Customer that the System cannot be constructed as proposed, and this Agreement will terminate with neither Party having further obligations under this Agreement; provided 98 however, that the Parties may agree to amend this Agreement to accommodate a revised, feasible System in which case the Parties shall agree to a revised System design and execute an amendment to this Agreement with revised Exhibits PPA -A, PPA -B and PPA -C. (b) If System Owner determines that the drawings, specifications and other documentation provided to System Owner by Host Customer pursuant to Section 3.1.1 are not correct or complete, and that revisions thereto would add to the cost of the System, System Owner will notify Host Customer that the System cannot be constructed as proposed, this Agreement will terminate, and Host Customer will reimburse System Owner for all reasonable third party and materials costs incurred up to termination; provided however, that the Parties may agree to amend this Agreement to accommodate a revised, feasible System in which case the Parties shall agree to a revised System design and execute an amendment to this Agreement with revised Exhibits PPA -A, PPA -B and PPA -C. ARTICLE IV SYSTEM INSTALLATION 4.1 System Installation 4.4.1 Installation Schedule System Owner will provide Host Customer with a proposed installation schedule and an estimated Service Commencement Date. Host Customer shall have five (5) business days to review and comment on the schedule or the proposed schedule will be considered approved. System Owner will notify Host Customer of any material changes to the proposed schedule and any revisions to the estimated Service Commencement Date during the Installation Period. 4.1.2 Right of Access During Installation Period System Owner and its Contractors shall have the right of access specified in Article VI during the Installation Period and will coordinate installation activities with Host Customer to minimize interference with normal operations at the Premises, to the extent reasonably practical and without causing undue delay in the Service Commencement Date. Any work that requires interruption of electricity to Host Customer's Premises will be identified in the installation schedule, and System Owner or its Contractors will receive approval from Host Customer prior to any such interruption. 4.1.3 Installation to Specifications and Standards Upon satisfaction of the pre - installation conditions of Section 3.1, System Owner will begin installation at the Site. System Owner shall install, and test the System on the Site in accordance with the technical specifications set forth in Exhibit PPA -B. System Owner shall perform Services in a good and workmanlike manner and in compliance with all applicable laws and regulations, including System compliance with the Host Utility's interconnection and Tariff requirements. 4.1.4 Output During System Testing 99 During the Installation Period, System Owner or its Contractors may test the System, and Host Customer shall accept delivery of any Output resulting from such testing during the Installation Period. There shall be no charge to Host Customer for Output delivered from the System during the Installation Period. 4.1.5 Connection of System to Site Electrical System System Owner shall be responsible for the interconnection of the System to the Site Electrical System and shall be solely responsible for all equipment, maintenance, and repairs associated with such interconnection equipment in accordance with the terms and conditions of this Agreement. Host Customer shall at all times own and be responsible for the operation and maintenance of the Site Electrical System at and from the Delivery Point. 4.2 Hazardous Materials and Refuse 4.2.1 Host Customer Representation Host Customer represents that at the time it executes this Agreement, it has disclosed to System Owner any and all hazardous materials that exist at the Site or Premises in Exhibit PPA- A of this Agreement. 4.2.2 System Owner Responsibilities During the Installation Period and thereafter, System Owner agrees and shall cause its Contractors to agree, as follows: (a) To take reasonable measures to reduce or mitigate noise, dust, the spread of debris and installation materials; (b) To remove all debris, extra materials, scaffolding, tools, machinery and other installation materials from the Site and other work areas at the conclusion of the Installation Period; and (c) To use and dispose of any "hazardous materials" as defined in any applicable federal or state environmental laws brought to the Site or the Premises in connection with Services being performed in accordance with all applicable laws. 4.2.3 Effect of Discovery of Hazardous Materials If System Owner or its Contractors discover any hazardous materials existing on the Premises or the Site during the installation and testing of the System that System Owner reasonably believes may require removal or remediation, or that otherwise impairs or prevents installation and testing of the System, System Owner shall promptly notify Host Customer, and System Owner may, in its sole discretion, suspend installation or testing of the System until such time as Host Customer has removed the hazardous materials and remediated the Premises to System Owner's satisfaction. System Owner shall have no responsibility or liability in respect of hazardous materials existing at the Premises (other than any hazardous materials brought to the Premises by or on behalf of System Owner). If Host Customer does not agree on a schedule and terms to remove the hazardous materials which permits System Owner to resume installation 100 within five (5) days following the discovery of such hazardous materials at the Premises or the Site, then such failure shall be an Event of Default, Host Customer shall be liable for damages as a Defaulting Party in accordance with the provisions of Article XV, and System Owner may terminate this Agreement. 4.2.4 Mutual Indemnification Each Party agrees to indemnify and hold harmless the other Party for any claims, fines, damages, and costs (including attorney's and consultant's fees) arising out of hazardous material liability to the extent the Party is responsible for such hazardous materials and is thus an Indemnifying Party under Section 15.3. This clause shall survive the termination of this Agreement and expiration of the Service Term. 4.3 Licenses, Permits and Inspections During Installation System Owner shall maintain and shall ensure that its Contractors maintain all required licenses and permits during the Installation Period. System Owner and its Contractors shall obtain all inspections required by all authorities having jurisdiction during the Installation Period and during the Term. Certificates of inspection or other appropriate documentation by said authorities shall be delivered to Host Customer upon completion of the installation of the System. 4.4 Contractors 4.4.1 Subcontract Requirements System Owner may hire Contractors by subcontracting the performance of any part or all of the Services System Owner is obligated to provide hereunder. All Contractors so engaged by System Owner shall be required by contract to have all permits, licenses, insurance and registrations required to perform the Services subcontracted to them. 4.4.2 Identification of Contractors to Host Customer System Owner shall provide Host Customer with (a) the identification of all Contractors to be engaged by System Owner, and (b) evidence that such Contractors have obtained and will maintain insurance as required by Article XVI. All Contractors shall follow Host Customer's Premises access protocols, including sign -in, security and safety orientation, before commencing any work at the Premises. 4.4.3 Host Customer Right to Remove Contractors from Site for Cause Host Customer shall have the right to require the removal from the Site of any Contractor or the agents, employees or subcontractors of such Contractor, who, in Host Customer's sole judgment, exhibit unsafe work practices, unacceptable quality of workmanship, or behavior inappropriate for the workplace. 4.5 Safe Workplace 101 While at the Premises and the Site, System Owner and its Contractors will take all reasonable and customary steps to ensure the safety of workers and visitors in accordance with all applicable laws. System Owner shall cause the work to be carried out in accordance with Host Customer's published safety program, a copy of which is appended hereto as Exhibit PPA - E. 4.6 Installation of Meter System Owner shall install the Meter at the Delivery Point to measure the amount of Output delivered by the System to Host Customer. System Owner will own, operate and maintain the Meter during the Service Term at its own expense. 4.7 Net Metering Arrangements 4.7.1 System Owner Notification to Make Net Metering Arrangements System Owner shall provide Host Customer with timely notification that Host Customer must make Net Metering Arrangements with the Host Utility in order for System Owner to be able to complete the installation and testing of the System. Within five (5) business days of such notification from System Owner, Host Customer shall enter into Net Metering Arrangements by executing such agreements as may be required by Host Utility to permit the interconnection of the System with the Site Electrical System and to allow any Output of the System not consumed by the Host Customer to flow to the Host Utility. Host Customer shall promptly provide copies of such agreements and arrangements to System Owner when executed. 4.7.1 Required Documentation System Owner shall provide Host Customer with documentation under System Owner's control that the Host Utility requires by its Tariff to demonstrate that the System complies with the requirements of the Host Utility's interconnection standards. 4.8 Internet Access Consistent with the System Description and Specifications in Exhibit PPA -B, Host Customer shall make available to System Owner such internet access at the Premises and the Site as System Owner shall require for the continuous remote monitoring of the System's operation and performance. 4.9 Notification of Service Commencement Date Upon the successful completion of the installation and testing of the System and Host Utility approval to operate the System, System Owner shall provide Host Customer with notice that the System is ready to deliver Output and of the Service Commencement Date on the form in Exhibit PPA -F. 102 ARTICLE V OPERATION AND MAINTENANCE OF THE PREMISES, SYSTEM, SITE, AND SITE ELECTRICAL SYSTEM 5.1 System Owner Operation, Maintenance and Repair of System 5.1.1 System Owner shall maintain the System in good working condition, ordinary wear and tear, and shall operate the System in accordance with all applicable laws, regulations and ordinances. 5.1.2 If the System is damaged due to the negligence or intentional misconduct of Host Customer, then Host Customer shall be responsible for such costs incurred by System Owner for the repair or replacement of the System to the extent of its negligence or intentional misconduct. 5.2 System Owner Operation and Maintenance Contractors 5.2.1 Contractor Requirements System Owner may engage Contractors to operate, maintain and repair the System. System Owner shall require any such Contractors to have all licenses, permits and registrations and obtain inspections required for such service providers, and any such Contractors shall maintain insurance as required by Article XVI. 5.2.2 Identification of Contractors to Host Customer System Owner shall provide Host Customer with (a) the identification of all Contractors with whom System Owner contracts to operate, maintain and repair the System, and (b) evidence that such Contractors have obtained and will maintain insurance as required by Article XVI. All Contractors shall follow Host Customer's Premises access protocols, including sign -in, security and safety orientation, before commencing any work at the Premises. 5.2.3 Host Customer Right to Remove Contractors from Site for Cause Host Customer shall have the right to require the removal from the Site of any Contractor or the agents, employees or subcontractors of such Contractor, who, in Host Customer's sole judgment, exhibit unsafe work practices, unacceptable quality of workmanship, or behavior inappropriate for the workplace. 5.2.4 Safe Workplace While at the Premises and the Site, System Owner and its Contractors will take all reasonable and customary steps to ensure the safety of workers and visitors in accordance with all applicable laws. System Owner shall cause the work to be carried out in accordance with Host Customer's published safety program, a copy of which is appended hereto as Exhibit PPA- E. 103 5.3 Host Customer Operation, Maintenance and Repair of Premises and Site 5.3.1 Host Customer Responsibility and Coordination with System Owner Host Customer shall be solely responsible for the operation, maintenance and repair of the Premises and the Site, including any repair, maintenance or replacement of the roof on which the System is located. Host Customer will advise System Owner in writing prior to making any adjustments, modifications, or upgrades to the Premises or Site to ensure that the Output of the System is not negatively impacted. The duration of any maintenance or repair that disrupts System Output shall constitute a Disruption of Delivery on the part of the Host Customer in accordance with Section 11.3, and shall not constitute a Non - Delivery Period by System Owner as set forth in Section 15.1.1; provided, that if the need for any such repair or maintenance is caused by the negligence or intentional misconduct of System Owner, then the period required for maintenance or repair shall not constitute a Disruption of Delivery on the part of the Host Customer. Host Customer and System Owner shall coordinate such activities so as to minimize disruption to the System. 5.3.2 Separate Contract to Accommodate Host Customer Site Roof Repair If during the Term of this Agreement, Host Customer performs Site repairs or maintenance which may include replacement of the roof on which the System is located, Host Customer will contract separately with System Owner to disassemble, temporarily relocate, move, and reassemble System components as necessary to coordinate with the repairs, maintenance or replacement. System Owner will coordinate with Host Customer to minimize the disruption of Output during such repairs, maintenance, or replacement, and to restore the System to full capacity in a timely manner; provided, however that the duration of the repairs, maintenance or replacement shall constitute a Disruption of Delivery on the part of the Host Customer in accordance with the provisions of Section 11.3, and shall not constitute a Non - Delivery Period by System Owner in accordance with the provisions of Section 15.1.1. 5.4 Host Customer Maintenance and Repair of Site Electrical System Host Customer shall maintain the Site Electrical System in good working order, and shall perform such other maintenance, repair and upgrades as may be required including but not limited to such work required by the Host Utility or by applicable laws, regulations, ordinances, and codes. Host Customer will advise System Owner in writing prior to making any adjustments, modifications, or upgrades to the Site Electrical System to ensure that the Output of the System is not negatively impacted. The duration of any maintenance, repair, or upgrade that disrupts System Output shall constitute a Disruption of Delivery on the part of the Host Customer in accordance with Section 11.3, and shall not constitute a Non - Delivery Period by System Owner as set forth in Section 15.1.1; provided, that if the need for any such repair or maintenance is caused by the negligence or intentional misconduct of System Owner, then and the period required for such maintenance or repair shall not constitute a Disruption of Delivery on the part of the Host Customer. Host Customer and System Owner shall coordinate such activities so as to minimize disruption to the System. 104 5.5 Notice of System Malfunction and Non - Interference Host Customer shall notify System Owner immediately upon learning of (a) any material malfunction of or damage to the System and (b) any interruption or alteration of the energy supply to the Premises. Host Customer may not adjust, modify, maintain, alter, service or in any way interfere with the System, except as authorized in writing by System Owner, or in the event of an emergency if there is an imminent threat to life or property in which case Host Customer shall give System Owner or its designated Contractor immediate notice of such emergency. Host Customer shall be responsible for any damage to the System that is caused by its negligent or intentional interference with the System. 5.6 Host Customer Continuing Responsibility for Net Metering At all times during the Service Term, Host Customer shall maintain the Net Metering Arrangements and any other related agreements. 5.7 Host Customer Continuing Responsibility for Internet Access Consistent with the System Description and Specifications in Exhibit PPA -B, Host Customer shall make available to System Owner such internet access at the Premises and the Site as System Owner shall require for the continuous remote monitoring of the System's operation and performance. VI ACCESS AND SPACE PROVISIONS 6.1 Adequate Space for Installation Host Customer shall provide System Owner and its Contractors with adequate space on the Premises and the Site during the Installation Period for System Owner's installation and testing of the System, including reasonable staging and lay down areas. 6.2 Adequate Access for System Owner; Grant of License 6.2.1 Host Customer shall provide System Owner adequate access to the Premises and the Site for System Owner's installation, operation, maintenance, and, to the extent applicable, repair, replacement or removal of all or part of the System. Host Customer shall provide System Owner access to the Premises during regular business hours, outside of regular business hours upon reasonable request of System Owner, and at any time in the event of an emergency as may be necessary for System Owner to fulfill its obligations under this Agreement. Such access shall be subject to reasonable supervision by Host Customer as Host Customer may require. System Owner shall use reasonable efforts to minimize disruption to Host Customer's operations. 6.2.2 This Agreement shall constitute a non - exclusive license throughout the Term of this Agreement granting System Owner reasonable access to, occupancy of and use of the Premises for System Owner to exercise its rights and meet its obligations hereunder. Host 105 Customer will insure that any other license or other allowed use of the Premises shall not interfere with System Owner's reasonable access hereunder. 6.2.3 As used in this Article VI access rights applicable to System Owner shall include access for System Owner's agents, Contractors and assigns. 6.3 Access by Host Customer to System Because the System will be located on the Premises, the Parties acknowledge that Host Customer will have access to the Site for maintenance of Host Customer's property, safety, security, and emergency purposes. Host Customer shall take all reasonable actions to ensure that the operation of the System is not disrupted when Host Customer accesses the Site, and that the System will not be damaged thereby as a result of the actions or inactions of Host Customer, its designee(s) or invitees. 6.4 Prevention of Unauthorized Access Host Customer, in consultation with the System Owner, shall develop and implement, prior to the Service Commencement Date, written policies, systems and practices to prevent unauthorized access to and trespass on the System and to prevent harm or damage to the System or to Output. VII ADDITIONAL COVENANTS 7.1 Ownership of System by System Owner 7.1.1 Host Customer and System Owner (a) intend that the System shall at all times be the personal property of System Owner severable from the Site and the Premises and shall not become a fixture and (b) shall each take such actions as are reasonably required by the other Party to ensure that the System constitutes the personal property of System Owner and shall not become a fixture. 7.1.2 If any person attempts to claim ownership of or other rights to the System by asserting any claim against or through Host Customer, and such claim is not attributable to any act or omission of System Owner, Host Customer agrees to protect and defend System Owner's title to the System, at Host Customer's expense. Host Customer will at all times keep the System free from any legal process and any lien not attributable to any act or omission of System Owner, and will give System Owner immediate notice if any legal process or lien is asserted or made against the System or against Host Customer where the System may be subject to any lien, attachment or seizure by any Person. 7.2 Use of Premises 7.2.1 Host Customer intends to continue to use the Premises in a manner similar to its present use throughout the Term, except as has been disclosed to System Owner by Host Customer and included in Exhibit PPA -A of this Agreement. Host Customer shall give 106 reasonable prior notice to System Owner of any material modification of the Premises or change in the use of the Premises that would have an impact on the operation of the System or on Host Customer's consumption of Output. 7.2.2 If Host Customer provides a notice to System Owner pursuant to Section 7.2.1 that it seeks to make a material modification of the Premises or to change the use of the Premises in a way that would have an impact on the operation of the System or on Host Customer's consumption of Output, the Parties shall attempt to amend this Agreement so as to preserve to System Owner the economic benefits of this Agreement prior to such modification or change. If the Parties are unable to reach agreement on an amendment within ten (10) business days of the date Host Customer notifies System Owner of such change or modification, System Owner shall have the right to treat such change as an Event of Default hereunder and terminate this Agreement. In such event, (a) System Owner shall have the right to remove the System from Host Customer's property and the Premises and (b) Host Customer shall be liable for damages in accordance with the provisions of Article XV. 7.3 Obstructions 7.3.1 Host Customer shall not install or permit to be installed on the Premises (or any other property owned or controlled by Host Customer) any physical obstruction to the operation of the System that reduces Output. 7.3.2 In the event that any obstruction that could reasonably be expected to reduce Output is proposed to be erected or installed on property other than the Premises or other than property owned or controlled by Host Customer, Host Customer shall promptly deliver to System Owner copies of any notice relating thereto received by Host Customer, and System Owner shall have the right to intervene or to direct Host Customer to intervene (at System Owner's expense) in any proceeding and to contest the installation or erection of any such obstruction. In the event such obstruction is installed, (a) System Owner shall have the right to remove the System from Host Customer's property and the Premises and (b) Host Customer shall be liable for damages in accordance with the provisions of Article XV. 7.4 Status of Premises and Site 7.4.1 In the event that any or all of the Premises is or becomes subject during the Term to a new lease, security interest, lien or mortgage, Host Customer shall require that the lessor or the holder of such security interest, lien or mortgage enter into an agreement with System Owner, or provide an estoppel reasonably acceptable to System Owner and the lenders, acknowledging and recognizing System Owner's rights under this Agreement and acknowledging that the System is the personal property of System Owner severable from the Site and not a fixture. 7.4.2 If necessary after the execution of this Agreement, Host Customer shall from time to time grant to System Owner easements, leases, licenses, consents, acknowledgments, and approvals and other rights System Owner reasonably requires for the installation and testing of the System, production and delivery of Output to the Delivery Point, and the operation and maintenance of the System under this Agreement. 107 7.5 Host Customer's On -going Ability to Perform During the Term of the Agreement and when requested by System Owner, Host Customer shall promptly provide reasonable evidence of creditworthiness and ability to pay amounts due under this Agreement. VIII ENVIRONMENTAL CREDITS AND SYSTEM ATTRIBUTES 8.1 System Attributes System Owner shall at all times during the Term of this Agreement own and retain exclusive rights to any and all attributes, products or economic benefits attributable to the System or to the production and delivery of Output, including but not limited to Environmental Credits, Capacity and Ancillary Services. 8.2 Environmental Credits All Environmental Credits, whether available directly or indirectly, shall be and shall remain the property of System Owner for the Service Term. System Owner shall have sole use of such Environmental Credits and shall be permitted to use such Environmental Credits for itself, or to sell, grant, convey, or otherwise dispose of such Environmental Credits to any other Person, in System Owner's sole discretion. Host Customer hereby grants, makes and conveys to System Owner an absolute and irrevocable assignment of any and all right, title and interest Host Customer may at any time have in or to any Environmental Credits. 8.3 Documentation At System Owner's request, Host Customer will complete any and all documentation required to substantiate the existence, nature, and /or quantity of Environmental Credits produced by the System, or required to validate System Owner's rights to and ownership of the Environmental Credits. IX PURCHASE AND SALE OF OUTPUT On and after the Service Commencement Date and through the end of the Service Term, System Owner shall deliver and sell to Host Customer to the Delivery Point, and Host Customer shall accept delivery and purchase at the Delivery Point, all of the Output at the price and the terms and conditions set forth in Exhibit PPA -C of this Agreement. 9.1 Solar Electricity Price Beginning on the Service Commencement Date, the Solar Electricity Price paid by Host Customer for Output shall be as specified in Exhibit PPA -C. 9.2 Other Electricity Purchases 9.2.1 System to Reduce Other Electricity Purchases The Parties intend that the Output will reduce Host Customer's purchase of electricity from the Host Utility or retail electricity suppliers, and acknowledge that the System is not expected to meet the entirety of Host Customer's demand for electricity. To the extent that at any time the Output is insufficient to meet all of Host Customer's electricity demand, Host Customer will be responsible for purchasing electricity from such other sources. The Parties further intend that Host Customer's obligations to purchase Output shall not be reduced by the installation of another power source(s) on the Premises. 9.2.2 Other Electricity Purchase Agreements Host Customer shall be responsible for maintaining and fulfilling all obligations to any of its other electricity service providers, including but not limited to any competitive electric supplier of generation or transmission services to Host Customer, and for meeting all requirements imposed by any such electricity service provider and by any federal, state or local government agencies with respect to such services and to the purchase of the Output. 9.3 Sale Only to Host Customer In no event shall System Owner sell, or be deemed to have sold, Output to any Person other than Host Customer. 9.4 Host Customer Net Meteriniz Obli ag tion The Parties recognize and acknowledge that, from time to time, (a) the Output may exceed Host Customer's demand for electricity or (b) Host Customer will otherwise be unable to consume Output delivered to the Delivery Point. Host Customer shall nonetheless accept and take title to the Output at the Delivery Point and shall have in place and maintain Net Metering Arrangements as required by Tariff or by the Host Utility to deliver to the Host Utility any Output that exceeds Host Customer's demand for, or ability to consume, electricity; provided that if, through no cause attributable to Host Utility or System Owner, Host Customer fails to enter into, fails to maintain or otherwise fails to comply with the required Net Metering Arrangements, and as a result of such failure, System Owner cannot deliver Output to Host Customer, then such failure shall constitute a Disruption of Delivery and an Event of Default, and Host Customer shall be liable to System Owner for the electricity that the System produced, or was capable of producing, and that would otherwise have been delivered to Host Customer as Output, in accordance with the provisions of Article XV. 9.5 Taxes Host Customer shall either pay or reimburse System Owner for any and all taxes assessed on the generation, sale, delivery or consumption of electric energy produced by the System. For purposes of this Section, "Taxes" means any state and local ad valorem, occupation, generation, privilege, gross receipts, sales, use, consumption, excise, transaction, and other taxes, regulatory fees, surcharges or other similar charges, but shall not include any income 109 taxes or similar taxes imposed on System Owner's revenues due to the sale of energy under this Agreement, which shall be System Owner's responsibility. The purchaser is required to provide the seller with any documentation for exemptions from taxes. 9.6 Invoice and Pa3Ment Following the end of each calendar month during the Service Term, System Owner shall prepare and provide Host Customer an invoice for the Output delivered in the prior month (or partial month if the Service Commencement Date is not the first day of a month). Deliveries during the month of an anniversary date shall be prorated as to the applicable Solar Electricity Price. The amount due for the Output shall be determined by multiplying the applicable Solar Electricity Price by the Output delivered (or deemed delivered) to Host Customer during such month, and each invoice shall set forth in reasonable detail the calculation of all amounts owed. A sample invoice calculation is shown in Exhibit PPA -D. Delays in the issuance of any such invoice shall not constitute any waiver of Host Customer's obligation to pay once Host Customer has actually received and invoice from System Owner, or System Owner's right to collect, any payment under any such invoice. 9.6.1 Payments Subject to its contest rights set forth in Section 9.6.3, Host Customer shall pay the full amount of each invoice on or before the thirtieth (30t") day following issuance thereof ( "Due Date "). All payments made by Host Customer under this Agreement shall be by electronic funds transfer pursuant to the instructions set forth in Exhibit PPA -D attached hereto, or by check payable to System Owner (unless otherwise directed in writing by System Owner) at the address for notices set forth in Section 18.3, as such instructions or address may be modified by System Owner by notice to Host Customer in writing. 9.6.2 Late Payment Fees If any part of a monthly payment is not made by Host Customer within thirty (30) days following the Due Date, Host Customer agrees to pay System Owner a late fee that shall accrue on the basis of one percent (1 %) per month (or such lower percentage as and if required by applicable law) on the amount of such late payment ( "Late Fee "). 9.6.3 Contest Rights Host Customer shall notify System Owner in writing within five (5) business days of issuance of the monthly invoice of any portion of the invoiced amount that it has a reasonable basis to dispute in accordance with Section 18.1 and the basis for such Dispute. The contested portion of any invoiced amount shall not relieve Host Customer of its obligation to pay the uncontested portion of such invoice as set forth in Section 9.6.1. ARTICLE X METERING 110 During the Service Term, System Owner shall, at its own expense, own, operate and maintain the Meter and provide necessary Meter related services. 10.1 Meter Reading System Owner shall cause the Meter to be read at the end of each calendar month, and shall cause the Output delivered to Host Customer to be recorded. The reading shall be used as the basis for calculating the amount to be invoiced pursuant to Section 9.6 under this Agreement. 10.2 Alternative Measures in Event of Non - Operability If the Meter is out of service or registers inaccurately, then the measurement of the Output shall be determined by the following alternatives, in the following order: (a) any alternative or back -up meter that System Owner or Host Utility may have installed, if registering accurately; (b) a mathematical calculation, if upon a calibration test of such Meter a percentage error is ascertainable; or (c) estimates of deliveries of Output by reference to quantities measured during periods of similar conditions when such Meter was registering accurately. 10.3 Calibration 10.3.1 System Owner shall notify Host Customer of the time it will test and calibrate the Meter and Host Customer may witness such testing. Host Customer may request that System Owner to re -test and re- calibrate the Meter, and any such testing shall be at Host Customer's expense if such tests indicate that the Meter is accurate within plus or minus two percent (2 %). Host Customer may witness any re- tests. 10.3.2 If, upon testing, any Meter is found to be accurate or in error by not more than plus or minus 2 percent ( +2 %), then previous recordings of such Meter shall be considered accurate in computing deliveries of Output hereunder, but such Meter shall be promptly adjusted to record correctly. 10.3.3 If, upon testing, any Meter shall be found to be inaccurate by an amount exceeding plus or minus 2 percent ( ±2 %), then such Meter shall be promptly repaired or adjusted to record properly and any previous readings from such Meter used to compute invoices for Output shall be corrected to zero error. If no reliable information exists as to the period over which such Meter registered inaccurately, it shall be assumed for purposes of correcting previous invoices that such inaccuracy began at a point in time midway between the testing date and the next previous date on which such Meter was tested and found to be accurate. 10.3.4 If upon testing, any Meter shall be found to be inaccurate by an amount exceeding plus or minus two percent ( +2 %), then the payments for Output made since the previous test of such Meter shall be adjusted to reflect the corrected readings as determined in accordance with Section 10.3.3. If the difference in the previously invoiced amounts minus the adjusted payment is a positive number (Meter has over - registered Output), that difference will offset amounts owing by Host Customer to System Owner in subsequent month's). If the difference is a negative number (Meter has under - registered Output), the difference shall be added to the next month's invoice and paid by Host Customer to System Owner on the Due Date of such invoice. 111 ARTICLE XI OUTPUT INTERRUPTIONS 11.1 Intermittent Interruptions Are Expected Host Customer acknowledges and understands that the System, as a solar photovoltaic system, will produce Output intermittently, and will not provide Host Customer with an uninterrupted supply of electricity. THIS AGREEMENT PROVIDES NO WARRANTY OR GUARANTEE TO HOST CUSTOMER OF AN UNINTERRUPTED SUPPLY OF ELECTRICITY. System Owner shall not be liable to Host Customer for any intermittent interruption in Output during the Term, nor shall System Owner be responsible for Host Customer's cost of alternative supplies of electricity during any such interruption. If delivery of Output from the System is interrupted other than as a result of the default, negligent acts or omissions of Host Customer or as otherwise provided in Section 11.2, System Owner will make commercially reasonable efforts to restore Output in a timely manner. 11.2 Interruption of Output 11.2.1 Notwithstanding anything to the contrary herein, System Owner shall have the right to interrupt, reduce or discontinue the delivery of Output for purposes of inspection, maintenance, repair, replacement, or alteration of the System, or at the direction of authorized governmental authorities or electric utilities. Other than in the event of an unexpected interruption or in the event of an emergency, System Owner shall give Host Customer notice prior to an interruption of Output and an estimate of the expected duration of the interruption. 11.2.2 System Owner shall not be required to supply Output to Host Customer at any time System Owner reasonably believes the Site or Site Electrical System to be unsafe, but in no event will System Owner have any responsibility to inspect or approve the Site Electrical System. Similarly, Host Customer, should it deem System to be in an unsafe condition, shall have the right to direct System Owner to disconnect System, or, in the case of imminent danger caused by such unsafe condition, Host Customer may disconnect System from its Site or Site Electrical System without penalty under this Agreement. In such an occurrence, Host Customer shall notify System Owner of said unsafe condition and of the emergency disconnection without delay. 11.3 Disruption of Delivery In the event that System Owner is capable of generating and delivering Output to Host Customer, but Host Customer fails to accept delivery of such Output (a "Disruption of Delivery "), Host Customer agrees to pay System Owner for such Output as follows: 11.3.1 Payments that Host Customer would have made to System Owner for Output that would have been produced during the period of the Disruption of Delivery, as determined by 112 historic billing data or as represented by the National Renewable Energy Laboratory PV Watts modeling software given the System attributes during the period of Disruption of Delivery; 11.3.2 Beginning on the fifth (51h)day following the commencement of the Disruption of Delivery, revenues that System Owner would have received under any state solar incentive program and any other assistance program with respect to Output that would have been produced during the period of the Disruption of Delivery; and 11.3.3 Beginning on the fifth (5t') day following the commencement of the Disruption of Delivery, revenues from Environmental Credits that System Owner would have received with respect to Output that would have been produced during the period of the Disruption of Delivery with due consideration to compliance fee payments to governmental authorities that may be caused by the Disruption of Delivery. 11.3.4 Payments will be made in accordance with the terms of Section 9.6. 11.4 Cost to Restore Service Following Interruption System Owner shall bear any costs associated with restoring service following any interruption of the supply of Output from the System as a result of System Owner's operation of the System. Host Customer shall bear the costs associated with the restoration of the delivery of Output if an interruption is caused by the actions or inactions of Host Customer or the condition of the Premises, Site or Site Electrical System. ARTICLE XII SYSTEM PURCHASE OPTIONS 12.1 Purchase Option 12. 1.1 Provided that Host Customer has fulfilled all obligations to System Owner under this Agreement, at the expiration of the Service Term Host Customer shall have the option to purchase the System by notifying System Owner in writing at least ninety (90) days prior to the end of the Service Term that Host Customer intends to exercise its option under this Section 12.1. 12.1.2 If Host Customer exercises its option under this Section 12. 1, Host Customer shall pay System Owner an amount equal to fair market value for the System and its Output. 12.1.3 Upon Host Customer's payment for the System, System Owner shall furnish the System to Host Customer, including all components thereof and operation manuals, in the condition at the time of determination of the fair market value, subject to normal wear and tear. 12.1.4 The term "fair market value" as used herein shall mean (i) the price that would be negotiated in an arm's- length, free market transaction, for cash, between an informed, willing seller and an informed, willing buyer (other than the user currently in possession), neither of whom is under compulsion to complete the transaction, for the purchase of the System as removed from the Site at the date of determination, de- installed, packed, crated and ready for 113 shipment to such buyer or, if higher, as installed on the Site and (ii) as determined by the mutual agreement of the Parties. If unable to agree, the Parties shall select a nationally recognized independent appraiser with experience and expertise in the solar photovoltaic industry to value the System; such valuation to be binding absent fraud or manifest error. The costs of the appraisal shall be borne equally by the Parties. If the Parties are unable to agree on the selection of an appraiser, such appraiser shall be selected by the two proposed appraiser firms. 12.1.5 Transfer to Host Customer Upon transfer of ownership of the System to Host Customer, System Owner shall have no further obligation with respect to the performance, installation, operation, maintenance or repair of any part or component of the System; provided, however, System Owner agrees to pass through and to transfer to Host Customer any applicable manufacturers' warranties provided on the System, to the extent that such warranties are transferable. 12.1.6 Non - Election and Removal 12.1.6 If Host Customer does not purchase the System pursuant to Section 12.1, or if System Owner and Host Customer do not agree to renew this Agreement pursuant to Section 2.2, System Owner shall, within ninety (90) days after the end of the Service Term, remove the System from the Site at its expense including the reasonable expense of repairing any adverse impact such removal directly causes to the Site or the Premises. ARTICLE XIII REPRESENTATIONS 13.1 Host Customer Representations Host Customer makes the following representations and warranties to System Owner: 13.1.1 Host Customer is duly authorized and has the power to enter into this Agreement and perform its obligations hereunder. 13.1.2 Host Customer has all the rights required to enter into this Agreement and perform its obligations hereunder, and has obtained all necessary consents, if any, from third parties including any mortgagee. 13.1.3 This Agreement is enforceable against Host Customer in accordance with its terms and does not conflict with or violate the terms of any other agreement to which Host Customer is a party, including, if applicable, any agreement pursuant to which Host Customer leases, occupies, or has financed the Premises or the Site. 13.1.4 Host Customer has no knowledge of any facts or circumstances that could materially adversely affect its ability to perform its obligations hereunder including its creditworthiness pursuant to Section 7.5. 114 13.1.5 The information provided to System Owner by Host Customer pursuant to this Agreement as of the Effective Date is true and accurate in all material respects including but not limited to: data concerning energy usage for the Premises; and construction drawings for the Premises in existence as of the Effective Date. 13.1.6 Host Customer shall use its best efforts to satisfy all conditions precedent in Section 3.1. 13.2 System Owner Representations System Owner makes the following representations and warranties to Host Customer: 13.2.1 System Owner is duly authorized and has the power to enter into this Agreement and perform its obligations hereunder. 13.2.2 System Owner has all the rights required to enter into this Agreement and perform its obligations hereunder, and has obtained all necessary consents, if any, from third parties including any mortgagee. 13.2.3 This Agreement is enforceable against System Owner in accordance with its terms and does not conflict with or violate the terms of any other agreement to which System Owner is a party. 13.2.4 System Owner has no knowledge of any facts or circumstances that could materially adversely affect its ability to perform its obligations hereunder including its creditworthiness. 13.2.5 The information provided to System Owner by Host Customer pursuant to this Agreement as of the Effective Date is true and accurate in all material respects. 13.2.6 System Owner shall use its best efforts to satisfy all conditions precedent in Section 3.1. ARTICLE XIV FORCE MAJEURE 14.1 Definition of Force Majeure Force Majeure Events Force Majeure means any circumstance not within the reasonable control, directly or indirectly, of the Party affected, but only if and to the extent that (a) such circumstance, despite the exercise of due diligence, cannot be or be caused to be prevented, avoided or removed by such Party, (b) such event is not due to such Party's negligence or intentional misconduct, (c) such event is not the result of any failure of such Party to perform any of its obligations under 115 this Agreement, (d) such Party has taken all reasonable precautions, due care, and reasonable alternative measures to avoid the effect of such event and to mitigate the consequences thereof, and (e) such Party has given the other Party prompt notice describing such event, the effect thereof and the actions being taken to comply with this Agreement. Subject to the foregoing conditions, Force Majeure Events may include: strikes or other labor disputes, other than strikes or labor disputes solely by employees of the Party declaring the Force Majeure Event or as a result of such Party's failure to comply with a collective bargaining agreement; adverse weather conditions and other acts of nature; earthquakes; and riot or civil unrest; provided, that Force Majeure Events shall not include any inability to make any payments that are due hereunder or to any third party or to procure insurance required to be procured hereunder. 14.2 No Default Neither System Owner nor Host Customer shall be considered to be in default in the performance of its obligations under this Agreement to the extent that performance of any such obligation is prevented or delayed by a Force Majeure Event. Not withstanding any provision herein to the contrary, the Host Customer shall not be obligated to make payments under this Agreement for any period during which the System Owner is unable to deliver Output to the Host Customer by reason of a Force Majeure Event. 14.3 Notice and Cure If a Party is prevented or delayed in the performance of any such obligation by a Force Majeure Event, then such Party shall immediately provide notice to the other Party of the circumstances preventing or delaying performance and the expected duration thereof. Such notice shall be confirmed in writing as soon as reasonably possible. The Party affected by a Force Majeure Event shall use commercially reasonable efforts to remove or repair the cause of the Force Majeure Event and shall resume performance of its obligations as soon as reasonably practicable. 14.4 Termination for Force Mai Either Party shall be entitled to terminate this Agreement upon ten (10) days prior written notice to the other Party if any Force Majeure Event affecting the other Party has been in existence for a period of forty -five (45) consecutive days or longer, unless such Force Majeure Event ceases prior to the expiration of such forty -five (45) day period. ARTICLE XV DEFAULT, REMEDIES AND LIMITATIONS, INDEMNITY, RELEASE AND DISCLAIMER 15.1 Default. Each Party (the "Defaulting Party ") shall be liable to the other Party (the "Non - Defaulting Party ") for the following "Events of Default." MR 15.1.2 Material Misrepresentation Representations, warranties and other statements made by a Party that misrepresents a material fact as of the Effective Date or thereafter, and such misrepresentation has a material adverse effect on the other Party that is not cured within ten (10) business days from the earlier of (a) notice from the Party affected by the misrepresentation and (b) the discovery or determination by a Party of its misrepresentation; provided, that if the Party that has made the misrepresentation commences an action to cure such misrepresentation within such ten (10) business day period, and thereafter proceeds with all due diligence to cure such failure, the cure period shall extend for an additional thirty (30) days after the expiration of the initial ten (10) business day period. 15.1.3 Bankruptcy A Party (a) voluntarily or involuntarily files or has filed against it a bankruptcy or other similar petition, (b) enters into an assignment of its assets for the benefit of its creditors or (c) otherwise is unable to pay its debts as they become due. 15.2 Remedies. Upon the occurrence of, and during the continuation without cure of, an Event of Default, the Non - Defaulting Party shall have the option, but not the obligation, to terminate this Agreement, and the Defaulting Party shall be liable to the Non - Defaulting Party for damages for Default. 15.2.1 If a Host Customer Event of Default occurs, (i) System Owner shall have the right to terminate this Agreement upon thirty (30) days prior written notice to Host Customer, and promptly following such termination, shall have the right to remove the System from the Premises, and (ii) Host Customer shall be liable to System Owner for actual, direct damages. At all times following an Event of Default by the Host Customer until the termination of this Agreement, System Owner shall have the right, but not the obligation, to deliver the Output to the Host Customer, and the Host Customer shall be obligated to purchase and pay for such Output in accordance with this Agreement. 15.2.2 If a System Owner Event of Default occurs, then Host Customer shall have the right to terminate this Agreement upon thirty (30) days prior written notice to System Owner. Following such termination, System Owner shall have the right to remove the System from the Site within thirty (30) days after such termination, and shall promptly make or have made any repairs to the Site to the extent necessary to repair any adverse impact such removal causes to the Site. 15.2.3 Host Customer shall be liable to System Owner for any actual, direct damages, including but not limited to lost revenues for the sale of Output due to a Disruption of Delivery, cause by a Host Customer Event of Default. Subject to ordinary wear and tear of the System, Host Customer agrees to pay System Owner for the reasonable costs and expenses relating to any repairs to, direct or indirect harm to, or loss of the System, to the extent resulting from negligence or intentional misconduct of Host Customer or any of its contractors, agents, tenants, employees, partners, owners, subsidiaries, affiliates or invitees, or resulting from the failure of 118 Host Customer to reasonably protect the System from trespass or other unauthorized access as provided herein. 15.2.4 System Owner shall be liable to Host Customer for any actual, direct damages caused by a System Owner Event of Default. System Owner agrees to pay Host Customer for the reasonable costs and expenses relating to any repairs to, direct or indirect harm to, or loss of the Site or Host Customer's personal property or fixtures on the Site, to the extent resulting from negligence or intentional misconduct of System Owner or any of its contractors, second -tier contractors, agents, employees, partners, owners, subsidiaries or affiliates. 15.2.5 Limitation of Liability While the Defaulting Party shall be liable to the Non - Defaulting Party for actual, direct damages caused by an Event of Default, neither Party shall be liable to the other Party for any special, indirect or consequential damages arising out of the performance or non - performance of this Agreement, whether caused by negligence, tort, strict liability, breach of contract, or breach of warranty. 15.2.6 Reservation of Rights Neither termination nor the exercise of any other right or remedy by a Non - Defaulting Party hereunder shall eliminate the Non - Defaulting Party's right to pursue any other remedy given under this Agreement now or hereafter existing at law, in equity or otherwise. 15.3 Mutual General Indemnity To the maximum extent permitted by law, each Party hereto (the "Indemnifying Party ") shall defend, indemnify and hold harmless the other Party and the directors, officers, shareholders, partners, agents and employees of such other Party, and the affiliates of the same (collectively, the "Indemnified Parties "), from and against all loss, damage, expense and liability in connection with this Agreement (including court costs and reasonable attorney's fees) to the extent caused by, or arising out of, the negligent acts or omissions of the Indemnifying Party, or the failure of the Indemnifying Party to comply with the provisions of this Agreement. 15.4 Defense of Claims An Indemnifying Party shall have the right to defend an Indemnified Party by counsel (including insurance counsel) of the Indemnifying Party's selection reasonably satisfactory to the Indemnified Party, with respect to any claims within the indemnification obligations hereof, subject to any limitations imposed by the Indemnifying Party's insurer. The Parties shall give each other prompt written notice of any asserted claims or actions indemnified against hereunder and shall cooperate with each other in the defense of any such claims or actions. No Indemnified Party shall take any action relating to such claims or actions within the indemnification obligations hereof without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, and no Indemnifying Party shall settle any such claims without the Indemnified Party's prior written consent, unless the settlement includes a full and unconditional release of claims against the Indemnified Party. 119 15.5 Release of Liens and Claims So long as Host Customer has paid all amounts that become due and owing to System Owner hereunder, System Owner shall hold harmless Host Customer from all liens and claims filed or asserted by System Owner's independent contractors, second -tier contractors or other third parties against Host Customer or the Premises for services performed or material furnished to System Owner by such parties. System Owner shall, at no cost to Host Customer, promptly release, discharge or otherwise remove any such lien or claim by bonding, payment or otherwise and shall notify Host Customer of such release, discharge or removal. If System Owner does not timely cause any such lien or claim to be released, discharged or otherwise removed, Host Customer shall have the right (but not the obligation) to pay all sums necessary to obtain releases, discharges or removals (including the settlement of any lien or claim). In such event, Host Customer shall have the right to deduct all amounts so paid (plus reasonable attorneys' fees) from amounts due System Owner hereunder. Alternatively, upon reasonable demand by Host Customer, System Owner shall reimburse Host Customer for such amounts 15.6 Disclaimer of Warranties EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER (INCLUDING ANY SERVICES, GOODS, MATERIALS OR OTHER ITEMS SUPPLIED HEREUNDER), INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. ARTICLE XVI INSURANCE 16.1 System Owner's Insurance 16. 1.1 System Owner's Insurance Coverage At all times relevant to this Agreement, System Owner shall maintain (or shall cause its Contractors to maintain), with a company or companies licensed or qualified to do business in the State of Minnesota and rated A / VIII or above by A.M. Best, the following insurance coverage: (a) Workers' compensation insurance in compliance with appropriate federal and State of Minnesota laws, and employers liability insurance with limit of not less than $1,000,000 per accident or disease for each employee; (b) Commercial general liability insurance, occurrence form, including, but not limited to, contractual coverage for all of the provisions or this Agreement, with limits of not less than $2,000,000 per occurrence and in the aggregate, $2,000,000 products and completed operations aggregate, and $1,000,000 personal injury and advertising injury per offense. Host Customer shall be endorsed as an additional insured on the System Owner's coverage. 120 16.2 Host Customer's Insurance 16.2.1 Host Customer's Insurance Coverage At all times relevant to this Agreement, Host Customer shall maintain the following insurance coverages with the League of Minnesota Cities Insurance Trust, or alternatively, an insurance company agreeable to the System Owner: (a) Workers' compensation insurance in compliance with appropriate federal and State of Minnesota laws, and employers liability insurance with limit of not less than $1,000,000 per accident or disease for each employee; (b) Commercial general liability insurance or its equivalent, including, but not limited to, contractual coverage for all of the provisions or this Agreement, with limits of not less than $2,000,000 per occurrence and in the aggregate, $2,000,000 products and completed operations aggregate; and $1,000,000 personal injury and advertising injury per offense. If coverage is provided on a claims -made basis, the retroactive or prior acts date of such coverage shall not be after the effective date of this Agreement and Host Owner shall maintain such insurance for a period of at least three (3) years, following completion of this Agreement. If such insurance is discontinued, extended reporting period coverage must be obtained by Host Owner to fulfill this requirement. (c) Property coverage will be maintained providing replacement cost value for the System pursuant to Section 5.1.2 and for property that is in Host Customer's care, custody and control, with limits not less than the replacement value of the System. This coverage shall include appropriate riders for specialty equipment as necessary. 16.2.2 Deductibles In addition, Host Customer must provide the System Owner with a bona fide list of all deductibles, retentions, or any other cost sharing agreements affecting this coverage. These deductibles, retentions, or other forms of cost sharing shall not exceed $10,000. 16.3 Certificates Host Customer and System Owner shall cause certified copies of all required insurance policies to be endorsed by the insurance providers for the above coverages. Evidence of the above insurance policies shall be provided on a continuous basis and on a standard ACORD form 25, providing not less than thirty (30) days notice of cancellation or material alteration or in the case of non - payment of premium, at least 10 days' written notice of cancellation. All policies listed in Section 16.2.1 shall grant System Owner and Host Customer, its successors, subsidiaries, directors, officers, agents and employees a waiver of subrogation. The commercial general liability policy in Section 16.2.1(b) shall name the System Owner, its successors, subsidiaries, directors, officers, agents and employees as an additional insured. The property 121 coverage policy in Section 16.2.1(c) shall name System Owner, its successors, subsidiaries, directors, officers, agents and employees as a loss payee. ARTICLE XVII ASSIGNMENT 17.1 Assignment by Host Customer Host Customer shall not assign this Agreement without the consent of System Owner, such consent not to be unreasonably withheld. 17. 1.1 Substitute Solar Energy Power Purchase and Sale Agreement In the event that Host Customer terminates this Agreement during the Term because it will no longer own or occupy the Premises, Host Customer shall use commercially reasonable efforts to facilitate discussions between System Owner and a successor owner or occupant of the Premises regarding the sale of Output to such new owner or occupant pursuant to an assignment of this Agreement acceptable to System Owner. In the event that System Owner accepts such an assignment or enters into an agreement with such new owner or occupant for the sale of Output on terms at least as favorable to System Owner as this Agreement, then Host Customer shall have no further liability to System Owner. Otherwise, Host Customer shall be liable to System Owner for damages in accordance with the provisions of Article XV. 17.2 Assignment by ystem Owner 17.2.1 System Owner may, with the prior written consent of Host Customer which consent shall not be unreasonably withheld, assign its interest in and be released from its obligations under this Agreement, as long as the assignee shall expressly assume this Agreement and agrees to be bound by the terms and conditions hereof. 17.2.2 System Owner may, without the consent of Host Customer, (a) transfer or assign all or substantially all of its rights and obligations hereunder to an affiliate or successor or (b) collaterally assign to its lenders, in connection with a financing of the System, all or any part of System Owner's rights or obligations hereunder. Host Customer agrees to provide acknowledgements, consents, or certifications reasonably requested by System Owner's lenders in conjunction with such financing. System Owner shall inform Host Customer of any such transfers or assignments. ARTICLE XVIII MISCELLANEOUS 122 18.1 Disputes The Parties agree to attempt to resolve any dispute, controversy or claim (each, a "Dispute ") arising out of or relating to this Agreement or any breach or alleged breach hereof through an informal process that shall be assigned to an executive officer of each Party. In the event such a process fails, each Party may seek appropriate relief in an appropriate forum. 18.2 Confidentiality 18.2.1 Both Parties agree that this Agreement and its performance by both Parties are proprietary and confidential to the Parties, and that disclosure of the terms of this Agreement or of the costs incurred under this Agreement to third parties could place one or both Parties at a commercial disadvantage. Subject to the other provisions of this Section, each Party agrees not to disclose to any third parties the terms of this Agreement or costs incurred by either Party under this Agreement without the other Party's prior written consent, which consent shall not be unreasonably withheld, or to the extent of any disclosure required under applicable law or court order; provided, that disclosing Party first shall have given advance notice to other Party so as to permit said other Party to attempt to obtain a protective order requiring that the confidential information to be disclosed be used only for the purposes for which the order was issued or to vacate or otherwise quash the order or other legal process. System Owner agrees to keep confidential all documents, utility bills, architectural and mechanical plans, and any other information provided by Host Customer under this Agreement. Each Party may disclose confidential information hereunder to its authorized representatives, attorneys, agents, consultants and employees on a need to know basis so long as such persons agree in writing to be bound by the confidentiality obligations of this Section 18.2.1. 18.2.2 Notwithstanding anything to the contrary set forth herein or in any other agreement to which the Parties are parties or by which they are bound, the obligations of confidentiality contained herein and therein, as they relate to the transaction, shall not apply to the U.S. federal tax structure or U.S. federal tax treatment of the transaction, and each Party (and any employee, representative, or agent of any Party hereto) may disclose to any and all persons, without limitation of any kind, the U.S. federal tax structure and U.S. federal tax treatment of the transaction. The preceding sentence is intended to cause the transaction not to be treated as having been offered under conditions of confidentiality for purposes of Section 1.6011- 4(b)(3) (or any successor provision) of the Treasury Regulations promulgated under Section 6011 of the Code and shall be construed in a manner consistent with such purpose. In addition, each Party acknowledges that it has no proprietary or exclusive rights to the tax structure of the transaction or any tax matter or tax idea related to the transaction. 18.2.3 The Parties agree and acknowledge that each Party may promote the installation and use of the System by any means; provided, that neither Party shall identify the other by name (or in the case of the Host Customer, by location) without the consent of the other Party and the approval by such other Party of all written materials identifying such other Party. 18.3 Notices Any written notice, direction, instruction, request or other communication required or permitted under this Agreement shall be deemed to have been duly given on the date of receipt, 123 and shall be delivered (a) personally to the Party to whom notice is to be given, (b) by electronic mail to the Party to whom notice is to be given (provided receiving Party issues an electronic mail receipt acknowledgment), (c) by a recognized overnight delivery service to the Party to whom notice is to be given, or (d) to the Party to whom notice is to be given, by first class registered or certified mail, return receipt requested, postage prepaid (with additional notice by regular mail), and addressed to the addressee at the address stated opposite its name below, or at the most recent address specified by written notice given to the other Party in the manner provided in this Section 18.3. If to System Owner: New Energy Equity, LLC 705 Melvin Ave., Suite 100 Annapolis, MD 21401 Attention: Matthew Hankey If to Host Customer: City of Columbia Heights 590 40th Ave. NE Columbia Heights, MN 55421 Attention: 18.4 Applicable Law and Jurisdiction; Waiver 18.4.1 This Agreement is made and shall be interpreted and enforced in accordance with the laws of Minnesota. The Parties hereby consent and submit to the personal jurisdiction of the courts of Minnesota. 18.5 Entire Agreement This Agreement and any documents expressly incorporated herein by reference shall constitute the entire Agreement between the Parties regarding the subject matter hereof and supersedes all prior agreements, understandings, representations, and statements, including any marketing materials and sales presentations whether oral or written. There are no agreements, understandings, or covenants between the Parties of any kind, expressed or implied, or otherwise, pertaining to the rights and obligations set forth herein that have not been set forth in this Agreement. 18.6 Amendments and Modifications No amendments or modifications of this Agreement shall be valid unless evidenced in writing and signed by duly authorized representatives of both Parties. 124 18.7 Invalidity The invalidity or unenforceability, in whole or in part, of any portion or provision of this Agreement will not affect the validity and enforceability of any other portion or provision hereof. Any invalid or unenforceable portion or provision shall be deemed severed from this Agreement and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain such invalid or unenforceable portion or provision. Notwithstanding the provisions of the preceding sentence, should any term or provision of this Agreement be found invalid or unenforceable, the Parties shall immediately renegotiate in good faith such term or provision of this Agreement to effectuate the same intent and to eliminate such invalidity or unenforceability. 18.8 Counterpart Execution This Agreement may be executed and delivered by the Parties in any number of counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. 18.9 Neutral Interpretation The Parties acknowledge that this is a negotiated Agreement and, in the event of any dispute over its meaning or application, this Agreement shall be interpreted fairly and reasonably and neither more strongly for, nor more strongly against, either Party. 18.10 Headings Any headings or captions contained in this Agreement are for reference purposes only and are in no way to be construed to interpret, define or limit the scope, extent or intent of this Agreement or any provision hereof. 18.11 No Waiver No waiver of any of the terms and conditions of this Agreement shall be effective unless in writing and signed by the Party against whom such waiver is sought to be enforced. Any waiver of the terms hereof shall be effective only in the specific instance and for the specific purpose given. The failure of a Party to insist, in any instance, on the strict performance of any of the terms and conditions hereof shall not be construed as a waiver of such Party's right in the future to insist on such strict performance. 18.12 Survival Any provisions that are necessary to give effect to the intent of the Parties hereunder after the termination or expiration of this Agreement shall survive the termination or expiration of this Agreement. 125 IN WITNESS WHEREOF, the duly authorized representatives of the Parties have each executed this Solar Energy Power Purchase and Sale Agreement, as of the Effective Date. New Energy Equity, LLC Name and Title City of Columbia Heights 126 LIST OF EXHIBITS Exhibit PPA -A Description of Premises and Site Exhibit PPA -B System Description and Specifications Exhibit PPA -C Solar Electricity Price Exhibit PPA -D Sample Invoice and Electronic Fund Transfer Instructions Exhibit PPA -E Host Customer Safety Program Exhibit PPA -F Form of Notice of Installation Completion and Service Commencement Date 127 EXHIBIT PPA -A Description of Premises and Sites Library Parcel Number 36- 30 -24 -33 -0148 located at 3939 Central Ave NE Columbia Heights, MN 55421. Public Safety Parcel Number 36- 30 -24 -13 -0100 located at 825 41st Ave. NE Columbia Heights, MN 55421 Public Works Parcel Number 35- 30 -24 -43 -0008 located at 637 38th Ave. NE Columbia Heights, MN 55421. 128 EXHIBIT PPA -B System Description and Specifications The Library system is a 135 kW roof mount installation comprised of approximately 483 solar modules. In this location and at this orientation, the system is expected to produce 158,000 kWh of electricity per year. r3 i The Public Safety system is a 101 kW roof mount installation comprised of approximately 362 solar modules. In this location and at this orientation, the system is expected to produce 118,090 kWh of electricity per year. 129 The Public Works system is a 85 kW roof mount installation comprised of approximately 452 solar modules. In this location and at this orientation, the system is expected to produce 99,000 kWh of electricity per year. ' L M-rf.-Tq, caemwsrz -r ^ _ In- ---- ��c� ' WT The Public Works system is a 85 kW roof mount installation comprised of approximately 452 solar modules. In this location and at this orientation, the system is expected to produce 99,000 kWh of electricity per year. ' L M-rf.-Tq, caemwsrz -r ^ Exhibit PPA -C Solar Electricity Price Contract Year Energy Price ($ /kWh) 1 $ 0.1575 2 $ 0.1614 3 $ 0.1655 4 $ 0.1696 5 $ 0.1739 6 $ 0.1782 7 $ 0.1827 8 $ 0.1872 9 $ 0.1919 10 $ 0.1967 11 $ 0.2016 12 $ 0.2067 13 $ 0.2118 14 $ 0.2171 15 $ 0.2225 131 EXHIBIT PPA -D Sample Invoice and Electronic Funds Transfer Instructions !; NEW ENERGY '• ate EQUITY 705 Melvin Ave Ste 100 Annapolis MD 21401 443 - 267 -5012 www.newenergVeguitV.com TO Custome TBD INVOICE NO. 007 -15 DATE October 6,2015 CUSTOMER ID XXX SHIP TO Period Due Date Delivery Point 9/1-9/30 Net 30 St Lukes I NVOICE Quantity Units DESCRIPTION Type Unit Price Amount 4357.05 kWh kWh electricity delivered Solar PV For additional details regarding solar generation duringthe month please visit www.solaros.datareadings.com and use the following username and password user: password: Remit by check payable to: New Energy Equity LLC 705 Melvin Ave Ste 100 Annapolis MD 21401 Attn: Accounting THANK YOU FOR YOUR BUSINESS! SUBTOTAL SALES TAX TOTAL 132 EXHIBIT PPA -E Host Customer Safety Program To Be Added at Contract Execution 133 EXHIBIT F Form of Notice of Installation Completion and Service Commencement Date New Energy Equity, LLC ( "System Owner ") hereby notifies City of Columbia Heights ( "Host Customer ") that pursuant to the Solar Photovoltaic System Power Purchase Agreement between the Parties dated , 2015 the System has been installed and tested successfully and is fully operational and is ready to produce Output to be delivered to Host Customer at the Delivery Point beginning , 2015, the Service Commencement Date. Invoicing calculations will be based on the following Meter readings recorded on the Service Commencement Date: Building Meter Reading (kWh) Upon receipt of this Notice of Installation Completion and Service Commencement Date please sign one of the duplicate originals of this notice and return one fully executed original to the undersigned. New Energy Equity, LLC [Date] City of Columbia Heights [Name & Title] [Date] 134 Exhibit L MIM PPA This SOLAR POWER PURCHASE AGREEMENT (this "Agreement ") is made and entered into as of November 17, 2015 (the "Effective Date ") by and between Apex Efficiency Solutions, SBC, a Minnesota special benefit corporation ( "Seller "), and the City of Columbia Heights, a municipality ( "Purchaser "). Each of Seller and Purchaser are sometimes referred to as a "Party" and collectively as the "Parties." 1113011 1F -11k� WHEREAS, Purchaser conducts its business at the Premises (defined below); WHEREAS, the Premises are owned by Purchaser (in its capacity as owner of the Premises, "Owner ") WHEREAS, Owner and Seller are parties to that certain System Site Lease Agreement dated of even date herewith (the "Site Lease "), pursuant to which Owner has leased to Seller that certain portion of the Premises referred to herein as the Project Site (as defined in the Site Lease) and granted to Seller certain easements on, over, and across the Premises for the installation, maintenance, and operation of the System (defined below); WHEREAS, Seller desires to install the System on the Project Site and sell the electricity generated by the System to Purchaser, on the terms set forth herein; and WHEREAS, Purchaser desires to purchase from Seller the electricity generated by the System on the terms set forth herein. NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser hereby agree as follows: AGREEMENT 1. DEFINITIONS. Capitalized terms used herein shall have the respective meanings set forth in Exhibit A. 2. PURCHASE AND SALE OF ENERGY. 2.1 Sale of Energy. Seller shall sell to Purchaser and Purchaser shall purchase from Seller all of the Energy generated by the System, as and when the same is produced. Seller shall deliver the Energy to the Delivery Point, and Purchaser shall accept the Energy delivered for the full Delivery Term. 2.1.1 If, for any reason, Purchaser's electric requirements are less than the Energy produced by the System Purchaser shall nevertheless pay for all Energy as and when PPA 1 135 produced by System pursuant to the terms of this Agreement. To the extent permitted by applicable law, Purchaser may deliver any excess Energy to Utility in accordance with the Net Metering Rules. 2.1.2 To the extent that Purchaser's electricity requirements exceed the Energy produced by the System, Purchaser shall purchase such excess electricity from Utility. Purchaser shall be responsible for all charges, applicable taxes, penalties, ratcheted demand or similar charges assessed by Utility for transmission and distribution service and other services necessary to meet the full energy requirements of Purchaser. 2.1.3 Purchaser shall be entitled to utilize the entire Energy output of the System; provided, however, that Seller shall not be required to deliver a minimum amount, or any other specific quantity, of Energy from the System. Anything herein to the contrary notwithstanding, there is no guarantee that Purchaser will realize any energy cost savings as result of this Agreement or the purchase of Energy from the System. 2.2 Contract Term; Delivery Term. This Agreement shall have a delivery term (the "Delivery Term ") of ten (10) years commencing on the Commercial Operation Date. The term of this Agreement (the "Contract Term ") shall commence on the Effective Date and shall end upon the expiration of the Delivery Term, unless terminated earlier in accordance with the terms of this Agreement. 2.3 Environmental Incentives. 2.3.1 Environmental Incentives. Seller shall have all right, title, and interest in and to all Environmental Incentives related to the System. Any Environmental Incentive related to the System that is initially credited or paid to Purchaser shall be assigned by Purchaser to Seller without delay. At Seller's expense, Purchaser agrees to cooperate with Seller in any applications for Environmental Incentives related to the System. 2.3.2 Impairment of Environmental Attributes and Incentives. Neither Party shall take any action or suffer any omission that would have the effect of impairing the value of the Environmental Attributes and Environmental Incentives. 2.3.3 Environmental Attributes. Seller shall have all right, title, and interest in and to all Environmental Attributes related to the System. At Seller's expense, Purchaser agrees to cooperate with Seller in any applications for Environmental Attributes related to the System. 3. THE SYSTEM. 3.1 Installation, Operation, and Maintenance of the System. Seller shall be responsible for the installation, operation, and maintenance of the System in a manner consistent with Prudent Operating Practice. If the supply of Energy from the System is PPA 2 136 interrupted as a result of malfunction or other shutdown, Seller shall use commercially reasonable efforts to remedy such interruption. Both Parties shall comply with all applicable laws and regulations relating to the operation of the System and the generation and sale of Energy, including obtaining and maintaining in effect all relevant approvals and permits. 3.2 Maintenance of Health and Safety. Seller shall take all reasonable safety precautions with respect to the operation, maintenance, repair, and replacement of the System and shall comply with all applicable health and safety laws, rules, regulations, and permit requirements. If Seller becomes aware of any circumstances relating to the Premises or the System that creates an imminent risk of damage or injury to any Person or any Person's property (and, should Purchaser become aware of such circumstances, Purchaser shall promptly notify Seller with respect thereto), Seller shall take prompt action to prevent such damage or injury and shall promptly notify Purchaser. Such action may include disconnecting and removing all or a portion of the System, or suspending the supply of Energy to Purchaser. 3.3 Assistance with Permits and Licenses. Upon Seller's request, Purchaser shall assist and cooperate with Seller, to acquire and maintain approvals, permits, and authorizations or to facilitate Seller's compliance with all applicable laws and regulations related to the construction, installation, operation, maintenance, and repair of the System, including providing any building owner or occupant authorizations, signing and processing any applications for permits, local utility grid interconnection applications, and rebate applications as are required by law to be signed by Purchaser. Purchaser shall also deliver to Seller copies of any necessary approvals, permits, rebates, or other financial incentives that are required by law in the name or physical control of Purchaser. 3.4 Commercial Operation Date. Seller shall notify Purchaser of the occurrence of the Commercial Operation Date. 3.5 Early Termination. In the event that the Notice to Proceed Date has not occurred within one (1) year following the Effective Date, either Party may terminate this Agreement upon thirty (30) days' written notice to the other party delivered at any time prior to the actual Notice to Proceed Date; provided, however, that the foregoing date shall be extended on a day- for -day basis for any Force Majeure occurring after the Effective Date and prior to the Notice to Proceed Date. Seller shall refund to Purchaser the first installment of the Prepayment Amount (if already paid by Purchaser) within one hundred eighty (180) days of an early termination under this Section. 3.6 Seller's Taxes. Subject to Section 3.7, Seller is solely responsible for all income, gross receipts, ad valorem, personal property, or other similar taxes and any and all franchise fees or similar fees relating to Seller's ownership of the System. 3.7 Purchaser's Taxes. Purchaser is responsible for paying timely all taxes, charges, levies, and assessments against the Premises. Purchaser is also responsible for paying all sales, use, and other taxes, and any and all franchise fees or similar fees assessed against Purchaser as a result of Purchaser's purchase of the Energy and, in the event that Purchaser exercises the PPA 3 137 Purchase Option, its purchase and ownership of the System, which fees are not otherwise the obligation of Seller. 3.8 Notice of Damage. Purchaser shall promptly notify Seller of any physical conditions or other circumstances of which Purchaser becomes aware that indicate there has been or might be damage to or loss of the use of the System or that could reasonably be expected to adversely affect the System. 4. PAYMENT AND METERING. 4.1 Consideration for Energy Delivered. As consideration for the delivery of Energy by Seller, Purchaser shall pay the following amounts: 4.2 Payments for Energy delivered under this Agreement shall be made at the applicable Energy Price. 4.3 Invoicing. Seller shall invoice Purchaser for payments as they become due for Energy on a monthly basis. Seller shall deliver each invoice within thirty (30) Business Days after the end of each billing period. Each invoice shall set out the amount of Energy delivered in kWh during such billing period, the then - applicable Energy Price, and the total amount then due to Seller. The amount due shall be prorated for any partial billing period during the Contract Term. Such invoice shall include sufficient details so that Purchaser can reasonably confirm the accuracy of the invoice including, among other details, beginning and ending meter readings. Purchaser shall pay the amount due to Seller within thirty (30) days after receipt of each invoice. A processing charge may be applied to any payments not made by automated funds transfer. 4.4 Disputed Amounts. A Party may in good faith dispute the correctness of any invoice (or any adjustment to any invoice) under this Agreement at any time within thirty (30) days following the delivery of the invoice (or invoice adjustment). In the event that either Party disputes any invoice or invoice adjustment, such Party shall nonetheless pay the full amount of the applicable invoice or invoice adjustment (except any portions thereof that are reasonably believed to be inaccurate or are not reasonably supported by documentation, payment of which amounts may be withheld subject to adjustment as hereinafter set forth) on the applicable payment due date, except as expressly provided otherwise elsewhere in this Agreement, and to give written notice of the objection to the other Party. Any required payment will be made within five (5) Business Days after resolution of the applicable dispute, together with interest accrued at the Interest Rate from the due date to the date paid. 4.5 Metering of Delivery. Seller shall measure the amount of Energy supplied to Purchaser at the Delivery Point using a commercially available, revenue -grade metering system. Such meter shall be installed and maintained at Seller's cost. Purchaser shall cooperate with Seller to enable Seller to have reasonable access to the meter as needed to inspect, repair, and maintain such meter. At Seller's option, the meter may have standard industry telemetry and /or automated meter reading capabilities to allow Seller to read the meter remotely. If PPA 4 138 Seller elects to install telemetry allowing for remote reading, Purchaser shall allow for the installation of necessary communication lines and shall reasonably cooperate in providing access for such installation. 4.6 Meter Verification. On each of the fifth, tenth and fifteenth anniversary of the Commercial Operation Date, or earlier upon Purchaser's reasonable request, Seller shall test the meter and provide copies of any related test results to Purchaser. The tests shall be conducted by a qualified independent third party. Seller shall notify Purchaser seven (7) days in advance of each such test, and shall permit Purchaser to be present during such tests. If a meter is inaccurate, Seller shall promptly cause the meter to be repaired or replaced. If a meter is accurate or inaccurate by two percent (2 %) or less, then Purchaser shall pay the costs of the meter testing. If a meter is inaccurate by more than two percent (2 %), then Seller shall pay for the costs of the meter testing. If a meter is inaccurate by more than two percent (2 %) and the duration of such inaccuracy is known, then prior invoices shall be adjusted accordingly and any amounts owed to Purchaser shall be credited against future invoices for Energy deliveries. If a meter is inaccurate by more than two percent (2 %) and it is not known when the meter inaccuracy commenced, then prior invoices shall be adjusted for the amount of the inaccuracy on the basis that the inaccuracy persisted during the twelve month period preceding the test and any amounts owed to Purchaser shall be credited against future invoices for Energy deliveries. 4.7 Books and Records. To facilitate payment and verification, each Party shall maintain all books and records necessary for billing and payments, including copies of all invoices under this Agreement, for a period of at least two (2) years, and Seller shall grant Purchaser reasonable access to those books, records, and data at the principal place of business of Seller. Purchaser may examine such books and records relating to transactions under, and administration of, this Agreement, at any time during the period the records are required to be maintained, upon request with reasonable notice and during normal business hours. 5. OPTION TO PURCHASE SYSTEM; END OF TERM. 5.1 Grant of Purchase Option. Seller hereby grants to Purchaser the right and option to purchase all of the Seller's right, title, and interest in and to the System on the terms set forth herein ( "Purchase Option "). Purchaser may exercise the Purchase Option simultaneously with the termination of this Agreement pursuant to Section 10.2 (the "Purchase Option Date "), provided that no Purchaser Event of Default, or any event which with the passage of time will become a Purchaser Event of Default, has then occurred and is ongoing. 5.2 Determination of Purchase Price. If Purchaser wishes to exercise the Purchase Option, it shall deliver an exercise notice to Seller within thirty (30) days of the Purchase Option Date (the "Exercise Period "). Any such exercise notice shall be irrevocable once delivered. The Purchase Price for the System shall be the fair market value ( "FMV "). FMV shall be determined PPA 5 139 by an independent appraiser hired by Seller to estimate the value of a comparable in- service system. 5.3 Terms and Date of System Purchase. The Parties shall consummate the sale of the System to Purchaser no later than forty -five (45) days following Purchaser's exercise of the Purchase Option. On the effective date of such sale (the "Transfer Date ") (a) Seller shall surrender and transfer to Purchaser all of Seller's right, title, and interest in and to the System and shall retain all liabilities, and profits arising from or relating to the System that arose prior to the Transfer Date; (b) Purchaser shall pay the Purchase Price to Seller in readily available funds, and shall assume all liabilities arising from or relating to the System as of and after the Transfer Date; (c) Purchaser shall pay all amounts due under this Agreement for Energy delivered hereunder; and (d) both the Seller and the Purchaser shall (i) execute and deliver a bill of sale and assignment of contract rights, together with such other conveyance and transaction documents as are reasonably required to fully transfer and vest title to the System in Purchaser, and (ii) deliver ancillary documents, including releases, resolutions, certificates, third -party consents and approvals, and such similar documents as may be reasonably necessary to complete and conclude the sale of the System to Purchaser. The purchase and sale of the System shall be on an "as -is, where -is" basis, and Seller shall not be required to make any warranties or representations with regard to the System, but Seller shall, to the extent reasonably possible, transfer or assign to Purchaser all manufacturer and third -party warranties with respect to the System or any part thereof. Purchaser shall pay all transaction and closing costs associated with exercise of the Purchase Option. 5.4 End of Term. In the event Purchaser declines to exercise its Purchase Option in connection with the final Purchase Option during the Contract Term, then, at least thirty (30) days before the expiration of the Contract Term, the Parties shall use commercially reasonable efforts to negotiate and document an extension of the Contract Term. In the event the Parties fail to reach agreement regarding such an extension, then Seller shall, within one hundred eighty (180) days after the date of expiration of the Contract Term, remove the System from the Premises. Other than as specifically provided otherwise herein or in the Site Lease, the removal of the System shall be at the cost of Seller. 6. TITLE AND RISK OF LOSS. 6.1 Title. Seller shall at all times retain title to and be the legal and beneficial owner of the System, and the System shall remain the personal property of Seller and shall not attach to or be deemed a part or fixture of the Premises. Seller may file one or more precautionary financing statements in jurisdictions it deems appropriate with respect to the System in order to protect its rights in the System. 6.2 Risk of Loss. Seller shall bear the risk of loss for the System, except to the extent caused by the breach by Purchaser of its obligations under this Agreement, the Site Lease or the negligence or intentional misconduct of Purchaser or its invitees. PPA 6 140 6.3 System Casualty. Upon the total damage, destruction, or loss of the System, or, in the reasonable opinion of Seller's insurance provider, the System is determined to have experienced a constructive total loss, Seller shall have the option, in its sole discretion, to repair or replace the System or terminate this Agreement. Seller shall notify Purchaser in writing of its election within thirty (30) days after the date of the damage to the System. Seller shall under all circumstances be entitled to all insurance proceeds with respect to the System. If Seller elects to repair or replace the System, Seller shall undertake such repair or replacement as quickly as practicable. If Seller elects to terminate this Agreement, the termination shall be effective immediately upon delivery of the notice under this Section 6.3. 7. FORCE MAIEURE. 7.1 Force Maieure. To the extent either Party is prevented by an event of Force Majeure from performing its obligations under this Agreement, such Party shall be excused from the performance of its obligations under this Agreement (other than the obligation to make payments when due). The Party claiming Force Majeure shall use commercially reasonable efforts to eliminate or avoid the Force Majeure and resume performing its obligations; provided, however, that neither Party is required to settle any strikes, lockouts or similar disputes except on terms acceptable to such Party, in its sole discretion. The non - claiming Party shall not be required to perform or resume performance of its obligations to the claiming Party corresponding to the obligations of the claiming Party excused by Force Majeure. 7.2 Notice. In the event of any delay or nonperformance resulting from an event of Force Majeure, the Party suffering the event of Force Majeure shall, as soon as practicable, notify the other Party in writing of the nature, cause, date of commencement thereof and the anticipated extent of any delay or interruption in performance; provided, however, that a Party's failure to give timely notice shall not affect such Party's ability to assert Force Majeure unless the delay in giving notice prejudices the other Party. 8. ADDITIONAL COVENANTS. 8.1 Liens. Purchaser shall not directly or indirectly cause, create, incur, assume or suffer to exist any mortgage, pledge, lien (including mechanics', labor or materialman's lien), charge, security interest, encumbrance or claim on or with respect to the System or any portion thereof. If Purchaser breaches it obligations under this Section 8.1, it shall promptly notify Seller in writing, shall promptly cause any lien to be discharged and released of record without cost to Seller, and shall indemnify Seller against all claims, losses, costs, damages, and expenses, including reasonable attorneys' fees, incurred in discharging and releasing such lien. 8.2 Additional Purchaser Financial Information. If requested by Seller, Purchaser shall deliver (i) within one hundred eighty (180) days following the end of each fiscal year, a copy of Purchaser's annual report containing audited consolidated financial statements with footnotes for such fiscal year. Such financial statements shall be for the most recent accounting period and prepared in accordance with generally accepted accounting principles consistently PPA 7 141 applied; provided, however, that if any such financial statements are not available on a timely basis due to a delay in preparation or certification, such delay shall not be deemed a Purchaser Event of Default so long as Purchaser diligently pursues the preparation, certification and delivery of the statements. 9. REPRESENTATIONS AND WARRANTIES. 9.1 Representations and Warranties of Purchaser. Purchaser represents and warrants to Seller that: 9.1.1 Purchaser has the requisite capacity to enter into this Agreement and fulfill its obligations hereunder, that the execution and delivery by it of this Agreement and the performance by it of its obligations hereunder have been duly authorized by all requisite action of its governing body, and that, subject to compliance with and obtaining all required governmental approvals under any applicable regulatory laws or regulations governing the sale or delivery of Energy, the entering into of this Agreement and the fulfillment of its obligations hereunder does not contravene any law, statute or contractual obligation of Purchaser; 9.1.2 This Agreement constitutes Purchaser's legal, valid and binding obligation enforceable against it in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws now or hereafter in effect relating to creditors' rights generally; 9.1.3 No suit, action or arbitration, or legal administrative or other proceeding is pending or has been threatened against the Purchaser that would have a material adverse effect on the validity or enforceability of this Agreement or the ability of Purchaser to fulfill its commitments hereunder, or that could result in any material adverse change in the business or financial condition of Purchaser; 9.1.4 No governmental approval (other than any governmental approvals which have been previously obtained) is required in connection with the due authorization, execution and delivery of this Agreement by Purchaser or the performance by Purchaser of its obligations hereunder which Purchaser will be unable to obtain in due course; and 9.2 Representations and Warranties of Seller. Seller represents and warrants to Purchaser that: 9.2.1 Seller has the requisite corporate, partnership or limited liability company capacity to enter into this Agreement and fulfill its obligations hereunder, that the execution and delivery by it of this Agreement and the performance by it of its obligations hereunder have been duly authorized by all requisite action of its stockholders, partners or members, and by its board of directors or other governing body, and that, subject to compliance with and obtaining all required governmental approvals under any applicable regulatory laws or regulations governing the sale or delivery of Energy, the entering into of this PPA 8 142 Agreement and the fulfillment of its obligations hereunder does not contravene any law, statute or contractual obligation of Seller; 9.2.2 This Agreement constitutes Seller's legal, valid and binding obligation enforceable against it in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws now or hereafter in effect relating to creditors' rights generally; 9.2.3 No suit, action or arbitration, or legal administrative or other proceeding is pending or has been threatened against the Seller that would have a material adverse effect on the validity or enforceability of this Agreement or the ability of Seller to fulfill its commitments hereunder, or that could result in any material adverse change in the business or financial condition of Seller; and 9.2.4 Neither the System nor any of Seller's services provided to Purchaser pursuant to this Agreement infringe on any third party's intellectual property or other proprietary rights. 10. DEFAULTS /REMEDIES. 10.1 Seller Event of Default. Each of the following events shall constitute a "Seller Event of Default ": 10.1.1 Seller fails to pay to Purchaser any amount when due under this Agreement and such breach remains uncured for ten (10) Business Days following notice of such breach to Seller; 10.1.2 (i) Seller commences a voluntary case under any bankruptcy law; (ii) Seller fails to controvert in a timely and appropriate manner, or acquiesces in writing to, any petition filed against Seller in an involuntary case under any bankruptcy law; or (iii) any involuntary bankruptcy proceeding commenced against Seller remains undismissed or undischarged for a period of sixty (60) days; and 10.1.3 Seller materially breaches any other term of this Agreement and (i) if such breach is capable of being cured within thirty (30) days after Purchaser's notice to Seller of such breach, Seller has failed to cure the breach within such thirty (30) day period, or (ii) if Seller has diligently commenced work to cure such breach during such thirty (30) day period but such breach is not capable of cure within such period, Seller has failed to cure the breach within a further one hundred fifty (150) day period (such aggregate period not to exceed one hundred eighty (180) days from the date of Purchaser's notice). 10.2 Purchaser's Remedies. If a Seller Event of Default has occurred and is continuing, Purchaser may terminate this Agreement by written notice to Seller following the expiration of the applicable cure period, and may exercise any other remedy it may have at law or equity, including, exercising the Purchase Option. PPA 9 143 10.3 Purchaser Event of Default. Each of the following events shall constitute a "Purchaser Event of Default ": 10.3.1 Purchaser fails to pay to Seller any amount when due under this Agreement and such breach remains uncured for thirty (30) Business Days following notice of such breach to Purchaser; 10.3.2 (i) Purchaser commences a voluntary case under any bankruptcy law; (ii) Purchaser fails to controvert in a timely and appropriate manner, or acquiesces in writing to, any petition filed against Purchaser in an involuntary case under any bankruptcy law; or (iii) any involuntary bankruptcy proceeding commenced against Purchaser remains undismissed or undischarged for a period of sixty (60) days; 10.3.3 Owner breaches any of its obligations under the Site Lease; 10.3.4 Purchaser breaches any of its obligations under Section 2.3.4; 10.3.5 Purchaser ceases to conduct business at the Premises; 10.3.6 Purchaser (i) refuses to execute any document required for Seller to obtain any Environmental Incentives related to the System, or (ii) causes any material change to the condition of the Premises that has a material adverse effect on the System; and 10.3.7 Purchaser materially breaches any other term of this Agreement and such breach remains uncured for thirty (30) days following notice of such breach to Purchaser, or such longer cure period as may be agreed to by the Parties. 10.4 Seller's Remedies. If a Purchaser Event of Default has occurred and is continuing, Seller may terminate this Agreement by written notice to Purchaser following the expiration of the applicable cure period. Seller may also exercise any other remedy it may have at law or equity, including recovering from Purchaser all resulting damages, which damages shall include, but not be limited to, projected payments for Energy generated for the remainder of the Contract Term; the cost of removing the System from the Premises; any loss or damage to Seller due to lost or recaptured Environmental Incentives, and the recapture of the investment tax credit under Section 48 of the Internal Revenue Code, the grant in lieu of tax credits pursuant to Section 1603 of Division B of the American Recovery and Reinvestment Act of 2009, and accelerated depreciation for the System; and all other amounts of any nature due under this Agreement (collectively, the "PPA Damages "). Pending Purchaser's payment of the PPA Damages, Seller may remain on the Premises and sell Energy produced by the System to any third party. 10.5 Waiver of Consequential Damages. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE PARTIES AGREE THAT TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE OR LIABLE, WHETHER IN CONTRACT, TORT, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER BASIS, FOR SPECIAL, INDIRECT, INCIDENTAL, PPA 10 144 MULTIPLE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS OR LOSS OR INTERRUPTION OF BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THE SYSTEM OR THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE PPA DAMAGES SHALL NOT BE CONSIDERED CONSEQUENTIAL DAMAGES AND SHALL NOT BE SUBJECT TO THE LIMITATIONS SET FORTH IN THIS SECTION. 10.6 Limitation of Liability. SELLER'S MAXIMUM LIABILITY UNDER THIS AGREEMENT (WHETHER IN CONTRACT, WARRANTY, INDEMNITY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) SHALL IN NO EVENT EXCEED ONE HUNDRED THOUSAND DOLLARS ($100,000.00). 11. NOTICES. Any notice required, permitted, or contemplated hereunder shall be in writing and addressed to the Party to be notified at the address set forth below or at such other address or addresses as a Party may designate for itself from time to time by notice hereunder. Such notices may be sent by personal delivery or recognized overnight courier, and shall be deemed effective upon receipt. To Seller: Apex Efficiency Solutions, SBC 403 Jackson, St, Suite 308 Anoka, MN 55303 Attention: Mark Rasmussen Phone: 763 - 201 -8952 To Purchaser: City of Columbia Heights 590 401h Ave N E Columbia Heights, MN 55421 Attention: City Manager Phone: 763.706 -3600 12. GOVERNING LAW; VENUE. 12.1 Choice of Law. This Agreement shall be construed in accordance with the laws of the State of Minnesota, without regard to its conflict of laws principles. 12.2 VENUE. PURCHASER AND SELLER EACH HEREBY IRREVOCABLY SUBMITS IN ANY SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY, WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN STEARNS COUNTY, MINNESOTA AND WAIVES ANY AND ALL OBJECTIONS TO JURISDICTION THAT IT MAY HAVE UNDER THE LAWS OF THE UNITED STATES OR OF ANY STATE. PURCHASER AND SELLER EACH WAIVE ANY OBJECTION THAT IT MAY HAVE (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON FORUM NON CONVENIENS) TO THE LOCATION OF THE COURT IN WHICH ANY PROCEEDING IS COMMENCED. PPA 11 145 13. INDEMNIFICATION. 13.1 Seller's Indemnity to Purchaser. Seller shall indemnify, defend, and hold harmless Purchaser (including Purchaser's permitted successors and assigns) and Purchaser's subsidiaries, directors, officers, members, shareholders, employees and agents (collectively, "Purchaser Indemnified Parties ") from and against any and all third -party claims, losses, costs, damages, and expenses, including reasonable attorneys' fees, incurred by Purchaser Indemnified Parties arising from or relating to (i) Seller's breach of this Agreement, or (ii) Seller's negligence or willful misconduct. Seller's indemnification obligations under this Section 14.1 shall not extend to any claim to the extent such claim is due to the gross negligence, sole negligence, or willful misconduct of any Purchaser Indemnified Party. 13.2 Purchaser's Indemnity to Seller. Purchaser shall indemnify, defend, and hold harmless Seller (including Seller's permitted successors and assigns) and Seller's subsidiaries, directors, officers, members, shareholders, employees and agents (collectively, "Seller Indemnified Parties ") from and against any and all third -party claims, losses, costs, damages, and expenses, including reasonable attorneys' fees, incurred by Seller Indemnified Parties arising from or relating to (i) Purchaser's breach of this Agreement, or (ii) Purchaser's negligence or willful misconduct. Purchaser's indemnification obligations under this Section 14.2 shall not extend to any claim to the extent such claim is due to the gross negligence, sole negligence, or willful misconduct of any Seller Indemnified Party. 14. INSURANCE. 14.1 Insurance Required. Each Party shall maintain in full force and effect throughout the Contract Term, with insurers of recognized responsibility authorized to do business in the State in which the System will be located, assigned an A.M. Best rating of no less than A- IX, insurance coverage in the amounts and types set forth on Exhibit C. Each policy of insurance maintained by Purchaser shall (a) name Seller as loss payee (to the extent covering risk of loss or damage to the Premises or the System) and as an additional named insured as its interests may appear (to the extent covering any other risk); and (b) contain endorsements providing that such policy shall not be cancelled or amended with respect to the named insured and its designees without thirty (30) days' prior written notice to Seller. Each Party shall, within ten (10) days of written request therefor, furnish current certificates of insurance to the other Party evidencing the insurance required hereunder. 14.2 Waiver of Subrogation. Each policy of insurance required hereunder shall provide for a waiver of subrogation rights against the other Party, and of any right of the insurers to any set -off or counterclaim or any other deduction, whether by attachment or otherwise, in respect of that policy. 14.3 No Waiver of Obligations. The provisions of this Agreement shall not be construed in a manner so as to relieve any insurer of its obligations to pay any insurance proceeds in accordance with the terms and conditions of valid and collectable insurance policies. The liabilities of the Parties to one another shall not be limited by insurance. PPA 12 146 15. MISCELLANEOUS. 15.1 Assignments. Neither Party shall have the right to assign any of its rights, duties, or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. The foregoing notwithstanding, Seller may assign any of its rights, duties, or obligations under this Agreement, without the consent of Purchaser, (i) to any of its Affiliates, (ii) to any third party in connection with a financing transaction, or (iii) to any purchaser of the System. 15.2 Entire Agreement. This Agreement and the Site Lease represent the full and complete agreement between the Parties hereto with respect to the subject matter contained herein and supersedes all prior written or oral agreements between the Parties with respect to the subject matter hereof. 15.3 Amendments. This Agreement may only be amended, modified, or supplemented by an instrument in writing executed by duly authorized representatives of Seller and Purchaser. 15.4 No Partnership or Joint Venture. Seller and Seller's agents, in the performance of this Agreement, shall act in an independent capacity and not as officers or employees or agents of Purchaser. This Agreement shall not impart any rights enforceable by any third party (other than a permitted successor or assignee bound to this Agreement). 15.5 Headings; Exhibits. The headings in this Agreement are solely for convenience and ease of reference and shall have no effect in interpreting the meaning of any provision of this Agreement. Any Exhibits referenced within and attached to this Agreement, including any attachments to the Exhibits, shall be a part of this Agreement and are incorporate by reference herein. 15.6 Remedies Cumulative; Attorneys' Fees. No remedy herein conferred upon or reserved to any Party shall exclude any other remedy herein or by law provided, but each shall be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. If any action, arbitration, judicial reference, or other proceeding is instituted between the Parties in connection with this Agreement, the losing Party shall pay to the prevailing Party a reasonable sum for attorneys' and experts' fees and costs incurred in bringing or defending such action or proceeding (at trial and on appeal) and /or enforcing any judgment granted therein. 15.7 Waiver. The waiver by either Party of any breach of any term, condition, or provision herein contained shall not be deemed to be a waiver of such term, condition, or provision, or any subsequent breach of the same, or any other term, condition, or provision contained herein. Any such waiver must be in a writing executed by the Party making such waiver. PPA 13 147 15.8 Severability. If any part, term, or provisions of this Agreement is determined by an arbitrator or court of competent jurisdiction to be invalid, illegal, or unenforceable, such determination shall not affect or impair the validity, legality, or enforceability of any other part, term, or provision of this Agreement and shall not render this Agreement unenforceable as a whole. Instead, the part of the Agreement found to be invalid, unenforceable, or illegal shall be amended, modified, or interpreted to the extent possible to most closely achieve the intent of the Parties and in the manner closest to the stricken provision. 15.9 No Public Utility. Nothing contained in this Agreement shall be construed as an intent by Seller to dedicate the System to public use or subject itself to regulation as a "public utility" (as such term may be defined under any applicable law). 15.10 Service Contract. The Parties acknowledge and agree that, for accounting and tax purposes, this Agreement is not and shall not be construed as a capital lease and, pursuant to Section 7701(e)(3) of the Internal Revenue Code, this Agreement is and shall be deemed to be a service contract for the sale to Purchaser of energy produced at an alternative energy facility. 15.11 Forward Contract. The Parties acknowledge and agree that the transaction contemplated under this Agreement constitutes a "forward contract" within the meaning of the United States Bankruptcy Code, and the Parties further acknowledge and agree that each Party is a "forward contract merchant" within the meaning of the United States Bankruptcy Code. 15.12 Publicity. The Parties agree that each may, from time to time, issue press releases regarding the System, provided, however that neither Party shall issue a press release regarding the System without the prior consent of the other Party, which consent shall not be unreasonably withheld or delayed. The Parties shall cooperate with each other in connection with the issuance of such press releases. Purchaser shall not make claims which are not consistent with Section 2.3. 15.13 Counterparts and Facsimile Signatures. This Agreement may be executed in counterparts, which shall together constitute one and the same agreement. Facsimile or portable document format ( ".PDF ") signatures shall have the same effect as original signatures, and each Party consents to the admission in evidence of a facsimile or photocopy of this Agreement in any court or arbitration proceedings between the Parties. 15.14 Further Assurances. 15.14.1 Additional Documents. Upon the receipt of a written request from the other Party, each Party shall execute such additional documents, instruments, and assurances and take such additional actions as are reasonably necessary and desirable to carry out the terms and intent hereof. Neither Party shall unreasonably withhold, condition, or delay its compliance with any reasonable request made pursuant to this section. PPA 14 148 15.14.2 Certificates. From time to time, Purchaser shall provide within five (5) Business Days after receipt of a written request from Seller (i) a lien waiver from any party purporting to have a lien, security interest, or other encumbrance on the Premises, confirming that it has no interest in the System, or (ii) an estoppel certificate attesting, to the knowledge of Purchaser, of Seller's compliance with the terms of this Agreement or detailing any known issues of noncompliance, and making such other representations, warranties, and accommodations reasonably requested by the recipient of the estoppel certificate. PPA [SIGNATURE PAGES FOLLOW] 15 149 IN WITNESS WHEREOF, the Parties have caused this Power Purchase Agreement to be duly executed and delivered as of the Effective Date. SELLER PURCHASER APEX EFFICIENCY SOLUTIONS, SBC CITY OF COLUMBIA HEIGHTS ME Name: Greg Ackerson Title: C.E.O. .., 16 M Name: Title: 150 EXHIBIT PPA -A DEFINITIONS "Affiliate" means, with respect to any person or entity, any other person or entity controlling, controlled by or under common control with such first person or entity. For purposes of this definition and this Agreement, the term "control" (and correlative terms) means the right and power, directly or indirectly through one or more intermediaries, to direct or cause the direction of substantially all of the management and policies of a person or entity through ownership of voting securities or by contract, including, but not limited to, the right to fifty percent (50 %) or more of the capital or profits of a partnership or, alternatively, ownership of fifty percent (50 %) or more of the voting stock of a corporation. "Agreement" has the meaning set forth in the Preamble. "Annual Prepaid Energy" has the meaning set forth in Section 4.1.1. "Annual Production Estimate" means, for any Contract Year, the applicable amount set forth on Exhibit F. "Business Day" means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday. "Commercial Operation Date" means the date when the first of the solar energy generating systems comprising the System is "placed in service" for purposes of Section 48 of the Internal Revenue Code. "Confidential Information" has the meaning set forth in Section 16.1. "Contract Term" has the meaning set forth in Section 2.2. "Contract Year" means the twelve (12) month period commencing on the Commercial Operation Date, and each consecutive twelve (12) month period thereafter during the Delivery Term. "Delivery Point" means the point of interconnection between the System and the Premises' internal electrical system. "Delivery Term" has the meaning set forth in Section 2.2. "Effective Date" has the meaning set forth in the Preamble. "Energy" means electrical energy that is generated by the System, expressed in kWh. (PPA -A - 1) 151 "Energy Price" means, for any Contract Year, the applicable amount set forth on Exhibit to "Environmental Attributes" means any and all environmental benefits, air quality credits, emissions reductions, offsets, and allowances, howsoever entitled, attributable to energy generation by a renewable fuel source and its displacement of energy generation by conventional, nonrenewable, and /or carbon -based fuel sources. Environmental Attributes include, but are not limited to, (1) any benefit accruing from the renewable nature of the generation's motive source; (2) any avoided emissions of pollutants to the air, soil, or water (such as sulfur oxides (SOX), nitrogen oxides (NO.), carbon monoxide (CO), and other pollutants other than those that are regulated pursuant to state or federal law); (3) any avoided emissions of carbon dioxide (CO2), methane (CH4), and other greenhouse gases that have been determined by the United Nations Intergovernmental Panel on Climate Change to contribute to the actual or potential threat of altering the Earth's climate by trapping heat in the atmosphere; (4) any property rights that may exist with respect to the foregoing attributes howsoever entitled; (5) any green tags, renewable energy credits or similar credits, including RECs created pursuant to applicable law ( "RECs "); and (6) any reporting rights to these avoided emissions, including, but not limited to, green tag or REC reporting rights. Environmental Attributes do not include (i) any energy, capacity, reliability, or other power attributes, (ii) Environmental Incentives, or (iii) emission reduction credits encumbered or used for compliance with local, state, or federal operating and /or air quality permits. "Environmental Incentives" means any and all financial incentives, from whatever source, related to the construction, ownership, or operation of the System. Environmental Incentives include, but are not limited to, (i) federal, state, or local tax credits; (ii) any other financial incentives in the form of credits, reductions, or allowances that are applicable to a local, state, or federal income taxation obligation; and (iii) other grants, rebates, or subsidies, including utility incentive programs. Environmental Incentives do not include Environmental Attributes. "Exercise Period" has the meaning set forth in Section 5.2. "FMV" has the meaning set forth in Section 5.2. "Financing Party" has the meaning set forth in Section 11.1. "Force Majeure" means any act or event that delays or prevents a Party from timely performing obligations under this Agreement or from complying with conditions required under this Agreement if such act or event, despite the exercise of reasonable efforts, cannot be avoided by, and is beyond the reasonable control of and without the fault or negligence of, the Party relying thereon as justification for such delay, nonperformance, or noncompliance, which includes, without limitation, an act of God or the elements, site conditions, extreme or severe weather conditions, explosion, fire, epidemic, landslide, mudslide, sabotage, terrorism, lightning, earthquake, flood, volcanic eruption or similar cataclysmic event, an act of public enemy, war, blockade, civil insurrection, riot, civil disturbance, or strike or other labor difficulty (PPA -A - 2) 152 caused or suffered by a Party or any third party beyond the reasonable control of such Party. However, financial cost alone or as the principal factor shall not constitute grounds for a claim of Force Majeure. "Governmental Authorities" means any national, state, regional, municipal or local government, any political subdivision thereof, or any governmental, quasi - governmental, regulatory, judicial or administrative agency, authority, commission, board or similar entity having jurisdiction over the System or its operations, the Premises, the Project Site or otherwise over any Party. "Independent Appraiser" has the meaning set forth in Section 5.2. "Interest Rate" means an annual rate equal to the lesser of (a) twelve (12) percent and (b) the highest interest rate permitted by applicable law. "kWh" means kilowatt- hours. "Net Metering Rules" means the rules established pursuant Minn. Stat. § 21613.164. "Notice to Proceed Date" means the date on which physical work of a significant nature relating to the installation of the System on the Project Site commences. "Owner" has the meaning set forth in the Preamble. "Party" and "Parties" have the meanings set forth in the Preamble. "Person" means any individual, corporation (including, without limitation, any non -stock or non - profit corporation), limited liability company, partnership, joint venture, association, joint -stock company, trust, unincorporated organization, or governmental body. "PPA Damages" has the meaning set forth in Section 10.4. "Premises" has the meaning set forth in the Site Lease. "Prepaid Credit" has the meaning set forth in Section 4.1.1(b). "Prepayment Amount" has the meaning set forth in Section 4.2. "Project Site" means has the meaning set forth in the Site Lease. "Prudent Operating Practice" means the practices, methods, and standards of professional care, skill, and diligence engaged in or approved by a significant portion of the electric power industry for solar energy facilities of similar size, type, and design as the System that, in the exercise of reasonable judgment, in light of the facts known at the time, would have been expected to accomplish results consistent with applicable law, reliability, safety, environmental protection, applicable codes, and standards of economy and expedition. (PPA -A - 3) 153 "Purchase Option" has the meaning set forth in Section 5.1. "Purchase Price" has the meaning set forth in Section 5.2. "Purchase Option Date" has the meaning set forth in Section 5.1. "Purchaser" has the meaning set forth in the Preamble. "Purchaser Event of Default" has the meaning set forth in Section 10.3. "Purchaser Indemnified Parties" has the meaning set forth in Section 14.1. "Seller" has the meaning set forth in the Preamble. "Seller Event of Default" has the meaning set forth in Section 10.1. "Seller Indemnified Parties" has the meaning set forth in Section 14.2. "Site Lease" has the meaning set forth in the Recitals. "System" means the solar energy generating systems described in Exhibit B. "Transfer Date" has the meaning set forth in Section 5.3. "Utility" means the Purchaser's electrical utility company. (PPA -A - 4) 154 EXHIBIT PPA -B DESCRIPTION OF THE SYSTEM • 39.7 kW Roof mounted - fixed solar array at TopValu I (PPA -B - 1) 155 EXHIBIT PPA -C INSURANCE REQUIREMENTS Insurance requirements shall be as set forth in the Site Lease. (PPA -C —1) W EXHIBIT PPA -D ENERGY PRICE Contract Year I Energy Price ($ /kWh) 1 $0.220 2 $0.223 3 $0.227 4 $0.230 5 $0.233 6 $0.237 7 $0.241 8 $0.244 9 $0.248 10 .252 (PPA -D — 1) 157 EXHIBIT PPA -E Annual Production Estimate Contract Year I Annual Production Estimate (kWh) 1 48,917 2 48,673 3 48,429 4 48,187 5 47,946 6 47,706 7 47,468 8 47,230 9 46,994 10 46,759 (PPA -E — 1) 158 Exhibit M MIM Rooftop Lease Agreement November 17, 2015 SYSTEM SITE LEASE AGREEMENT This SYSTEM SITE LEASE AGREEMENT (this "Agreement ") is made and entered into as of September 15, 2015 (the "Effective Date ") by and between Apex Efficiency Solutions, SBC, a Minnesota special benefit corporation ( "Lessee "), and The City of Columbia Heights, a municipality ( "Lessor "). Each of Lessor and Lessee are sometimes referred to as a "Party" and collectively as the "Parties." WHEREAS, Lessor is the owner of certain real property located in multiple locations in Minnesota, together with certain improvements, buildings, and other structures, as more particularly described on Exhibit RLA 1 attached hereto (the "Premises ") and which includes the areas on which the System will be installed at the locations described on Exhibit RLA 1 (the " Proiect Site "); WHEREAS, Lessee is the developer, owner, and operator of photovoltaic solar energy generation equipment and facilities; WHEREAS, Lessee (as Seller) and Lessor (in this capacity, "Purchaser ") are parties to that certain Solar Power Purchase Agreement dated of even date herewith (the "PPA "), pursuant to which Lessee has agreed to sell to Purchaser, and Purchaser has agreed to purchase from Lessee, all of the electrical energy produced by the Systems (as defined in the PPA) to be installed and operated on the Premises by Lessee; and WHEREAS, as a condition to entering into the PPA, Lessee requires Lessor to enter this Agreement. NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee hereby agree as follows: AGREEMENT 1. DEFINITIONS. Capitalized terms used but not defined herein shall have the meanings assigned to them in the PPA. 2. LEASE. 2.1 Lease. Lessor hereby leases the Project Site to Lessee in accordance with the terms and conditions and for the purposes set forth herein. The Parties intend that this lease Rooftop Lease Agreement 159 create a valid and present interest in the Project Site in favor of Lessee. Therefore, this Agreement is an interest in and encumbrance upon the Project Site which shall run with the land and shall be binding upon the Project Site and Lessor and its successors and assigns for the benefit of Lessee and its successors and assigns. 2.2 Term. The term of this Agreement (the "Term ") shall begin on Effective Date and shall end ten (10) years after the Commercial Operation Date (as defined in the PPA); provided that this Agreement shall automatically terminate (i) upon the termination or expiration of the PPA for a reason other than termination by Lessee following an Event of Default by Purchaser or Lessor in its capacity as Purchaser under the PPA, and (ii) in the case of termination by Lessee following an Event of Default by Purchaser or Lessor in its capacity as Purchaser under the PPA, following the payment of PPA Damages (as defined in the PPA) to Lessee. 2.3 Payment to Lessor. Lessee shall pay to Lessor as rent the one -time sum of one hundred dollars ($100.00) (the "One -Time Payment ") within thirty (30) days after the Effective Date. Lessor acknowledges and agrees that the One -Time Payment constitutes payment in full of rent for the Term, and no additional amount shall be due or owing to Lessor under this Agreement. 2.4 Permitted Uses. Lessee shall have the right to occupy and use the Project Site for solar energy conversion, for the collection and transmission of electric power, and for related and incidental purposes and activities (collectively, "Operations ") including, but not limited to, the construction, installation, improvement, relocation, operation, maintenance and repair of the System and, as may be occasioned by the termination of the PPA, removal of the System. 2.5 Lessee's Exercise of Rights. Lessee may construct and install the System on the Premises in the manner Lessee deems reasonable and appropriate; provided, however, that Lessee shall not unreasonably interfere with Lessor's use, operation, or maintenance of the Premises. The System shall be installed within the areas of the Project Site. 2.6 Premises Utilities. Lessor shall provide existing and available utilities to the Project Site in connection with Lessee's construction, start -up, maintenance, repair, replacement, operation and removal of the System. Lessor acknowledges and agrees that Lessee's use of the Premises includes the nonexclusive appurtenant right to the use of water lines, sewer lines, storm water lines, power lines, and telephone and communication lines. Without limiting the generality of the foregoing, At Lessee's request, Lessor shall provide Lessee with high -speed internet access at the Project Site during the entire Term. 2.7 Construction Laydown Area. Lessor shall provide Lessee sufficient space on the Premises for the temporary storage and staging of tools, materials and equipment reasonably necessary during installation and any maintenance, repair, replacement or removal of the System, provided that Lessee shall use commercially reasonable efforts to minimize disruption to Lessor's operations, and provided further that Lessee understands and acknowledges that space is limited at the Premises. Lessor and Lessee shall coordinate and cooperate in Rooftop Lease Agreement 2 determining the amount of space and specific portion of the Premises necessary for such purposes. 2.8 Notice. Except as may be required by an emergency, Lessee shall give Lessor reasonable written or telephonic notice before any entry onto the Premises outside of normal business hours by Lessee's employees, agents, or contractors. Notwithstanding anything to the contrary in this Agreement, Lessee shall be permitted to access the Premises (i) during normal business hours and (ii) twenty -four (24) hours a day, seven (7) days a week for emergency purposes as reasonably determined by Lessee. In the event Lessee enters the Premises due to an emergency, Lessee shall promptly notify Lessor of its entry and the nature of the emergency. Unless otherwise agreed in advance, normal business hours shall mean Monday through Saturday, 7AM through 7PM. 3. EASEMENTS. 3.1 Access Easement and Use Rights. Lessor grants Lessee a nonexclusive easement for access and use of the Premises, on, under, over, and across the Premises and any other real property adjacent to the Premises and owned by Lessor (collectively, the "Easement Area "), for the purposes of locating, installing, operating, maintaining, improving, repairing, relocating, and removing the System on the Premises (the "Use Rights "). The Use Rights include the right of parking, access, and ingress to and egress from the System on, over, and across the Easement Area during the Term, and shall survive, unless Purchaser has exercised the Purchase Option, for a period of one hundred eighty (180) days following the termination of this Agreement for the purpose of removing the System. Without limiting the foregoing grant, Lessor covenants that the Use Rights may be used to achieve all the purposes set forth in the PPA. 3.2 Solar Easement. Lessor hereby grants Lessee a solar easement on, over, and above the Easement Area for the free passage of solar radiation to the System. Such easement shall extend horizontally three hundred sixty degrees (360 °) across the entire Easement Area, together extending vertically through all space located above the surface of the Easement Area, that is, one hundred eighty degrees (180 °) or such greater number or numbers of degrees as may be necessary to extend from each point on and along a line drawn along the surface of the ground from each point along the exterior boundary of the Easement Area. Lessor shall not obstruct, or allow any tenant or assignee of Lessor to obstruct, the passage of direct solar radiation across the Easement Area to the System. Trees, structures, and improvements located on the Easement Area as of the Effective Date shall be allowed to remain, and Lessee may not require their removal; provided that Lessee may require that any trees or other vegetation be pruned or trimmed to the point that they do not obstruct the passage of direct solar radiation across the Easement Area to the System to a degree greater than on the Effective Date. Lessor shall not place or plant any trees, structures, or improvements on the Easement Area after the Effective Date that may, in Lessee's sole judgment, impede or interfere with the passage of direct solar radiation to the System, unless Lessor has received prior written approval from Lessee. Lessee and Lessor further agree to execute and record such Rooftop Lease Agreement 3 161 instruments or addenda to this Agreement as may be required under applicable State or local law to evidence the solar easement granted in this Section. 4. RIGHTS OF LESSEE. 4.1 Solar Resources. Lessee shall have the sole and exclusive right to convert all of the solar resources of, and to conduct Operations on, the Premises. Lessor shall not grant any rights in the Premises purporting to permit others to conduct Operations on the Premises in derogation of Lessee's sole and exclusive rights and privileges hereunder. Without the prior written consent of Lessee, Lessor shall not (i) waive any right available to Lessor or grant any right or privilege subject to the consent of Lessor by law or contract, including without limitation any environmental regulation, land use ordinance, or zoning regulation, with respect to setback requirements, or other restrictions and conditions respecting the placement of the System on the Premises or (ii) grant, confirm, acknowledge, recognize, or acquiesce in any right claimed by any other Person to conduct Operations on the Premises, and Lessor agrees to give Lessee notice of any such claims and to cooperate with Lessee in resisting and disputing such claims. 4.2 Signage. Lessee shall have the right to erect, modify, and maintain reasonable signage on the Premises with respect to the System and to Lessee's interests therein. 4.3 Enforcement of Legal Rights. Lessee shall have the right to enforce Lessor's rights under applicable laws protecting solar energy systems from obstruction. Lessor shall cooperate with any efforts by Lessee to enforce such rights. 5. DESIGN AND CONSTRUCTION OF SYSTEM. 5.1 Design and Construction. Lessor hereby consents to the construction of the System in accordance with the plans and specifications set forth on the attached Exhibit RLA 3. Lessee shall cause its contractors to comply with Lessor's reasonable and customary safety requirements and to coordinate construction of the System with Lessor so as to reasonably minimize disruption to the Premises and to Lessor's normal operations and activities thereon. Lessee shall not release Hazardous Materials on the Premises. As used in this Agreement, "Hazardous Materials" means any substance, material, waste, pollutant, or contaminant listed or defined as hazardous or toxic under any applicable law, and asbestos and petroleum, including crude oil or any fraction thereof, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas). 5.2 Acknowledgment of Lessor. Lessor acknowledges that the installation of all or a portion of the System will require physically mounting and adhering the System to the roof of the Premises, including penetrations into the roof surface. Lessor agrees to review and approve any System load studies provided by Lessee, including those relating to the weight of the System and the integrity of the roof. If ground mount system, Lessor acknowledges that the installation of the System may require penetrations into building. Rooftop Lease Agreement 4 162 5.3 Removal Upon Termination. Upon the termination or expiration of this Agreement for any reason, unless Purchaser has exercised the Purchase Option in the PPA, Lessee shall, within one hundred eighty (180) days after the date of expiration, remove the System from the Premises, and restore the rooftop to its condition as of the Effective Date, normal wear and tear excepted. Other than as specifically provided otherwise herein or in the PPA, the removal of the System shall be at the cost of Lessee. 6. THE PROJECT SITE. 6.1 Confirmation of Ownership. At the request of Lessee, Lessor shall obtain executed and acknowledged instruments and such other documents as Lessee or Lessee's title company may require to confirm Lessor's ownership of the Project Site or to complete or evidence the full granting of the leasehold interest in the Project Site as intended by this Agreement. 6.2 Liens. 6.2.1 Subordination. Lessor shall cooperate with Lessee to obtain a Subordination, Non - Disturbance and Attornment Agreement (an "SNDA ") from each lienholder which provides on terms reasonably acceptable to Lessee that the lien and rights of the lienholder shall be subordinate to this Agreement. Lessor will also obtain any necessary consent and /or SNDA in favor of Lessee and on terms reasonably acceptable to Lessee from any and all entities having a possessory interest in the Premises. 6.2.2 Notice to Premises Lienholders and Release. Lessor shall give effective notice of Lessee's ownership of the System and the System's status as personal property to all parties having an interest in or any mortgage, pledge, lien (including mechanics', labor or materialmen's liens), charge, security interest, or encumbrance of any nature (collectively, "Liens ") upon the real property and fixtures that are part of the Premises. If there is any Lien against the Premises that could reasonably be construed as prospectively attaching to the System as a fixture of the Premises, Lessor shall obtain a disclaimer or release of such Lien. Lessor consents to the filing of a disclaimer of the System as a fixture of the Premises in the office where real estate records are customarily filed in the jurisdiction of the Premises, and any other filing by Lessee in a public office regarding its ownership of the System deemed necessary or appropriate by Lessee, and Lessor hereby appoints Lessee as its agent with regarding to any such filing and authorizes Lessee to take required actions on Lessor's behalf required for such filing. 6.2.3 System Liens. Lessor shall not directly or indirectly allow any Lien on or with respect to the System by, through or under Lessor. If Lessor becomes aware of a Lien on the System by, through or under Lessor, Lessor shall promptly give Lessee written notice of such Lien and shall take such action as is necessary or appropriate to have such Lien discharged and removed. Lessor shall indemnify Lessee against all reasonable costs and expenses (including reasonable attorneys' fees) incurred in discharging and releasing any such Lien. Rooftop Lease Agreement 5 163 6.2.4 Premises Liens. Lessee shall not directly or indirectly allow any Lien by, through or under Lessee, on or with respect to the Premises or any interest therein, excluding Lessee's leasehold interest created pursuant to this Agreement, or any other asset of Lessor, including, without limitation, any Lien arising from or relating to the construction, ownership, maintenance or operation of the System by Lessee. Lessee shall defend and indemnify Lessor against all costs and expenses (including reasonable attorneys' fees and court costs at trial and on appeal) incurred in discharging and releasing any such Lien. 6.3 Quiet Enjoyment. Lessee shall enjoy quiet and peaceful use, enjoyment and possession of the Project Site, free from any claim of any entity or person of superior title thereto without hindrance to or interference with or molestation of Lessee's quiet enjoyment thereof, and neither Lessor nor any person claiming by, through or under Lessor shall disturb Lessee's quiet and peaceful use, enjoyment and possession of the Project Site. 6.4 No Interference. Lessor hereby agrees, for itself, its agents, employees, representatives, successors, and assigns, that it will not initiate or conduct activities that it knows or reasonably should know may damage, impair, or otherwise adversely affect the System or its functions, including without limitation activities that may adversely affect the System's exposure to sunlight. Lessor further covenants for itself and its agents, employees, representatives, successors, and assigns that it will not (i) interfere with or prohibit the free and complete use and enjoyment by Lessee of its rights granted under this Agreement; (ii) take any action that will interfere with the availability and accessibility of solar radiation over and above the Premises; (iii) take any action that will or may interfere with the transmission of electrical energy to or from the Premises; (iv) take any action that may impair Lessee's access to the Premises for the purposes specified in this Agreement; (v) plant or maintain any vegetation or erect or maintain any structure that will, during daylight, cast a shadow on the System; or (vi) take any action that may impair Lessee's access to any portion of the System. 6.5 System Property of Lessee; Transfer of the Premises. Lessor acknowledges and agrees that Lessee is the exclusive owner and operator of the System and all equipment (including, but not limited to, photovoltaic modules or panels, inverters, meters, wire, data monitoring equipment, and cabling), components and moveable property of Lessee attached to or used in the operation of the System, that no portion or component of the System is a fixture, and that in the event that the Premises are sold, leased, assigned, mortgaged, pledged, or otherwise alienated or encumbered (a "Transfer "), such Transfer shall not attach to or affect the System, or Lessee's ownership rights to the System. 6.6 Transfer of Premises. Lessor shall not Transfer all or any portion of the Premises unless the transferee agrees in writing that its interest in the Premises is subject and subordinate in all respects to the terms of this Lease. Lessor shall give Lessee at least sixty (60) days' prior notice of any Transfer of all or any portion of the Premises. Any such notice shall identify the transferee, the portion of the Premises to be transferred, and the proposed date of the Transfer. Rooftop Lease Agreement 6 164 6.7 Premises Security, Health and Safety. Lessor shall provide reasonable measures for the security of the Premises, including restricting access to the area on which the System is located and providing monitoring of the Premises' security alarms. Lessor shall maintain the Premises in a structurally sound and safe condition consistent with all applicable Laws. If Lessor becomes aware of any circumstances relating to the System that creates an imminent risk of damage or injury to the System or any employee of Lessee, Lessor shall promptly notify Lessee. 6.8 System Security. Lessee may install all security measures that Lessee, in its sole discretion, determines are or may be reasonably necessary for the System. Such measures may, but will not necessarily, include warning signs, fences, barbed wire closed and locked gates, and other measures appropriate and reasonable to protect against damage or destruction of the System or injury or damage to persons or property resulting from the System and Operations. 6.9 Maintenance of Premises. Lessor shall, without interfering with the operation of the System, maintain the Premises in good condition and repair, including the integrity of the roof, so that Lessee is able to comply with its obligations under this Agreement and the PPA. Lessor shall use commercially reasonable efforts to maintain Lessor's electrical energy equipment located on the Premises in good condition and repair so as to be able to receive and use the Energy generated by the System. Lessor shall maintain its connection and service contract(s) with its local utility, or any successors thereto, so that Lessor can, upon any suspension or interruption of delivery of energy from the System, provide the Premises with its full requirements for electricity. 6.10 System Maintenance. During the Term, Lessee shall, at Lessee's sole cost, maintain the System, the Project Site and all areas of the Premises used by Lessee in the Operations, in accordance with applicable laws and Prudent Operating Practices. 6.11 Roof Maintenance. If the system is located on the roof, Lessor shall be solely responsible for, and bear all costs and expense relating to, maintaining the roof of the buildings on which the System is located, including all required repair (including leak repair), remediation and maintenance of such roof, unless such repair, remediation and maintenance is required as a direct result of the negligent installation of the System. Lessor shall consult with Lessee before performing any required roof repair, remediation and maintenance that may affect the System, and Lessee shall be permitted to witness any such repair, remediation and maintenance. In the event the System must be temporarily disconnected or removed in order for Lessor to perform roof repair, remediation or maintenance, Lessor shall consult with Lessee in advance of any such activity, Lessee shall disconnect and remove the System at Lessor's expense, and Lessor shall pay to Lessee PPA Damages for the period during which the System is disconnected. Lessor shall be responsible for maintaining and enforcing all warranties relating to the roof. 6.12 Ground Maintenance. If the system is ground mounted, Lessor shall be solely responsible for, and bear all costs and expense relating to, maintaining the ground on which the System is located, including all required repair (including sprinkler system), unless such repair, Rooftop Lease Agreement 7 165 remediation and maintenance is required as a direct result of the negligent installation of the System. Lessor shall consult with Lessee before performing any required repair, remediation and maintenance that may affect the System, and Lessee shall be permitted to witness any such repair, remediation and maintenance. In the event the System must be temporarily disconnected or removed in order for Lessor to perform repair, remediation or maintenance, Lessor shall consult with Lessee in advance of any such activity, Lessee shall disconnect and remove the System at Lessor's expense, and Lessor shall pay to Lessee PPA Damages for the period during which the System is disconnected. Lessor shall be responsible for maintaining any grass mowing or general land maintenance. 6.13 System Relocation. In the event of an emergency, Lessor may request that Lessee relocate the System, at Lessor's expense, to another suitable location on the Premises, provided that (a) the Parties shall use reasonable efforts to perform the relocation during the months of October through March and outside of normal business hours and (b) Lessor shall pay to Lessee PPA Damages for the period during which the System is disconnected in connection with such relocation. 6.14 Clean Condition. Lessee shall not unreasonably clutter the Project Site or the Premises and shall collect and dispose of any and all of Lessee's refuse and trash. 6.15 Taxes. Lessor shall pay when due all real property taxes and assessments possessory interest taxes, business or license taxes or fees, service payments in lieu of such taxes or fees, annual or periodic license or use fees, excises, assessments, bonds, levies, fees or charges of any kind which are assessed, levied, charged, confirmed, imposed or levied against the Premises by any governmental body or public authority. 7. REPRESENTATIONS AND WARRANTIES 7.1 Representations of Lessor. Lessor represents and warrants to Lessee that: 7.1.1 Lessor has the requisite corporate, partnership or limited liability company capacity to enter into this Agreement and fulfill its obligations hereunder, that the execution and delivery by it of this Agreement and the performance by it of its obligations hereunder have been duly authorized by all requisite action of its stockholders, partners or members, and by its board of directors or other governing body, and that the entering into of this Agreement and the fulfillment of its obligations hereunder does not contravene any law, statute or contractual obligation of Lessor; 7.1.2 this Agreement constitutes Lessor's legal, valid and binding obligation enforceable against it in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws now or hereafter in effect relating to creditors' rights generally; 7.1.3 no suit, action or arbitration, or legal administrative or other proceeding is pending or has been threatened against the Lessor that would have a material adverse effect Rooftop Lease Agreement 8 W on the validity or enforceability of this Agreement or the ability of Lessor to fulfill its commitments hereunder, or that could result in any material adverse change in the business or financial condition of Lessor; 7.1.4 Lessor owns the Premises in fee simple, subject to no liens or encumbrances except as set forth in Exhibit RLA 2. All persons having any ownership or possessory interest in the Premises (including spouses) are signing this Agreement; 7.1.5 there are no Hazardous Materials on or under the Project Site; and 7.1.6 no governmental approval (other than any governmental approvals which have been previously obtained) is required in connection with the due authorization, execution and delivery of this Agreement by Lessor or the performance by Lessor of its obligations hereunder which Lessor will be unable to obtain in due course. 7.2 Representations of Lessee. Lessee represents and warrants to Lessor that: 7.2.1 Lessee has the requisite corporate, partnership or limited liability company capacity to enter into this Agreement and fulfill its obligations hereunder, that the execution and delivery by it of this Agreement and the performance by it of its obligations hereunder have been duly authorized by all requisite action of its stockholders, partners or members, and by its board of directors or other governing body, and that the entering into of this Agreement and the fulfillment of its obligations hereunder does not contravene any law, statute or contractual obligation of Lessee; 7.2.2 this Agreement constitutes Lessee's legal, valid and binding obligation enforceable against it in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws now or hereafter in effect relating to creditors' rights generally; 7.2.3 no suit, action or arbitration, or legal administrative or other proceeding is pending or has been threatened against the Lessee that would have a material adverse effect on the validity or enforceability of this Agreement or the ability of Lessee to fulfill its commitments hereunder, or that could result in any material adverse change in the business or financial condition of Lessee; and 7.2.4 no governmental approval (other than any governmental approvals which have been previously obtained) is required in connection with the due authorization, execution and delivery of this Agreement by Lessee or the performance by Lessor of its obligations hereunder which Lessee will be unable to obtain in due course. 8. DEFAULT; REMEDIES. 8.1 Lessee Default. Each of the following events shall constitute a "Lessee Default ": Rooftop Lease Agreement 0 167 8.1.1 Lessee materially breaches any term of this Agreement and (i) if such breach is capable of being cured within thirty (30) days after Lessor's notice of such breach, Lessee has failed to cure the breach within such thirty (30) day period, or (ii) if Lessee has diligently commenced work to cure such breach during such thirty (30) day period but such breach is not capable of cure within such period, Lessee has failed to cure the breach within a further one hundred fifty (150) day period (such aggregate period not to exceed one hundred eighty (180) days from the date of Lessor's notice); and 8.1.2 (i) Lessee commences a voluntary case under any bankruptcy law; (ii) Lessee fails to controvert in a timely and appropriate manner, or acquiesces in writing to, any petition filed against Lessee in an involuntary case under any bankruptcy law; or (iii) any involuntary bankruptcy proceeding commenced against Lessee remains undismissed or undischarged for a period of sixty (60) days. 8.2 Lessor's Remedies. If a Lessee Default has occurred and is continuing, Lessor may terminate this Agreement by written notice to Lessee following the expiration of the applicable cure period, and may exercise any other remedy it may have at law or equity. 8.3 Lessor Defaults. The following events shall be defaults with respect to Lessor (each, a "Lessor Default "): 8.3.1 Lessor materially breaches any term of this Agreement and such breach remains uncured for thirty (30) days following notice of such breach to Lessor, or such longer cure period as may be agreed to by the Parties; and 8.3.2 (i) Lessor commences a voluntary case under any bankruptcy law; (ii) Lessor fails to controvert in a timely and appropriate manner, or acquiesces in writing to, any petition filed against Lessor in an involuntary case under any bankruptcy law; or (iii) any involuntary bankruptcy proceeding commenced against Lessor remains undismissed or undischarged for a period of sixty (60) days. 8.4 Lessee's Remedies. If a Lessor Default has occurred and is continuing, Lessee may terminate this Agreement by written notice to Lessor following the expiration of the applicable cure period. Lessee may also exercise any other remedy it may have at law or equity, including recovering from Lessor all resulting damages, which damages shall include, but not be limited to, the PPA Damages and all other amounts of any nature due under this Agreement. 9. LIMITATIONS. 9.1 Limitation of Liability. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE PARTIES AGREE THAT TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE OR LIABLE, WHETHER IN CONTRACT, TORT, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER BASIS, FOR SPECIAL, INDIRECT, INCIDENTAL, MULTIPLE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS OR LOSS OR Rooftop Lease Agreement 10 168 INTERRUPTION OF BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THE SYSTEM OR THIS AGREEMENT. THE FOREGOING NOTWITHSTANDING, THE PPA DAMAGES SHALL NOT BE CONSIDERED CONSEQUENTIAL DAMAGES AND SHALL NOT BE SUBJECT TO THE LIMITATIONS SET FORTH IN THIS SECTION. 9.2 Equitable Relief, The Parties acknowledge that money damages would not be a sufficient remedy for any breach of this Agreement, and that, accordingly, in the event of any such breach or threatened breach, either Party shall be entitled to immediately seek any and all remedies available to it at law or in equity, including but not limited to an injunction or specific performance, from a court of competent jurisdiction. 10. FINANCING ACCOMMODATIONS. 10.1 Lessor Acknowledgment. Lessor acknowledges that Lessee may finance the System and that Lessee's obligations may be secured by, among other collateral, a pledge or collateral assignment of this Agreement and a security interest in the System. In order to facilitate such financing, and with respect to each Financing Party Lessor agrees as follows: 10.1.1 Consent to Collateral Assignment. Lessee shall have the right to assign this Agreement as collateral for financing or refinancing of the System, and Lessor hereby consents to the collateral assignment by Lessee to any Financing Party of Lessee's right, title, and interest in and to this Agreement. 10.1.2 Financing Party's Rights Following Default. Notwithstanding any contrary term of this Agreement: (a) Financing Party, as collateral assignee, shall be entitled to exercise, in the place and stead of Lessee, any and all rights and remedies of Lessee under this Agreement in accordance with the terms of this Agreement. Financing Party shall also be entitled to exercise all rights and remedies of secured parties generally with respect to this Agreement and the System. (b) Financing Party shall have the right, but not the obligation, to pay all sums due under this Agreement and to perform any other act, duty, or obligation required of Lessee hereunder or cause to be cured any default or event of default of Lessee in the time and manner provided by the terms of this Agreement. Nothing herein requires Financing Party to cure any default of Lessee (unless Financing Party has succeeded to Lessee's interests) to perform any act, duty, or obligation of Lessee, but Lessor hereby gives Financing Party the option to do so. (c) Upon the exercise of remedies under its security interest in the System, including any sale thereof by Financing Party, whether by judicial proceeding or under any power of sale, or any conveyance from Lessee to Financing Party, Financing Party shall give notice to Lessor of the transferee or assignee of this Agreement. Any such exercise of remedies shall not constitute a Lessee Default. Rooftop Lease Agreement 11 Im (d) Upon any rejection or other termination of this Agreement pursuant to any process undertaken with respect to Lessee under the United States Bankruptcy Code, at the request of Financing Party made within ninety (90) days of such termination or rejection, Lessor shall enter into a new site lease agreement with Financing Party or its assignee on substantially the same terms as this Agreement. 10.1.3 Financing Party Cure Rights. Lessor shall not exercise any right to terminate or suspend this Agreement unless Lessor has given prior written notice to each Financing Party of which Lessor has notice. Lessor's notice of an intent to terminate or suspend must specify the condition giving rise to such right. Financing Party has the longer of thirty (30) days and the cure period allowed for a default of that type under this Agreement to cure the condition; provided that if the condition cannot be cured within such time but can be cured within the extended period, Financing Party may have up to an additional ninety (90) days to cure if Financing Party commences to cure the condition within the thirty (30) day period and diligently pursues the cure thereafter. Lessor's and Lessee's obligations under this Agreement shall otherwise remain in effect, and Lessor and Lessee shall be required to fully perform all of their respective obligations under this Agreement during any cure period. 10.1.4 Continuation Following Cure. If Financing Party or its assignee acquires title to or control of Lessee's assets and cures all defaults existing as of the date of such change in title or control within the time allowed by Section 10.1.3, then this Agreement shall continue in full force and effect. 10.2 Notice of Defaults and Events of Default. Lessor agrees to deliver to each Financing Party a copy of all notices that Lessor delivers to Lessee pursuant to this Agreement. 11. NOTICES. 11.1 Notices. Any notice required, permitted, or contemplated hereunder shall be in writing and addressed to the Party to be notified at the address set forth below or at such other address or addresses as a Party may designate for itself from time to time by notice hereunder. Such notices may be sent by personal delivery or recognized overnight courier, and shall be deemed effective upon receipt. To Lessee: Apex Efficiency Solutions, SBC 403 Jackson, St, Suite 308 Anoka, MN 55303 Attention: Mark Rasmussen Phone: 763 - 201 -8952 Rooftop Lease Agreement 12 170 To Lessor: City of Columbia Heights 590 401h Ave NE Columbia Heights, MN 55421 Attn: City Manager Phone: 763.706 -3600 12. GOVERNING LAW; DISPUTES. 12.1 Choice of Law. This Agreement shall be construed in accordance with the laws of the State of Minnesota, without regard to its conflict of laws principles. 12.2 Disputes. The Parties agree to attempt to resolve any dispute, controversy or claim (each, a "Dispute ") arising out of or relating to this Agreement or any breach or alleged breach hereof through an informal process that shall be assigned to an executive officer of each Party. In the event such a process fails, each Party may seek appropriate relief in an appropriate forum. 13. INDEMNIFICATION. 13.1 Lessee's General Indemnity. Lessee shall indemnify, defend, and hold harmless Lessor (including Lessor's permitted successors and assigns) and Lessor's subsidiaries, directors, officers, members, shareholders, employees and agents (collectively, "Lessor Indemnified Parties ") from and against any and all third -party claims, losses, costs, damages, and expenses, including reasonable attorneys' fees, incurred by Lessor Indemnified Parties arising from or relating to (i) Lessee's breach of this Agreement, or (ii) the negligence or willful misconduct of Lessee's invitees. Lessee's indemnification obligations under this Section 13.1 shall not extend to any claim to the extent such claim is due to the negligence or willful misconduct of any Lessor Indemnified Party. 13.2 Lessee's Environmental Indemnity. Lessee shall indemnify, defend and hold harmless the Lessor Indemnified Parties against, any claims, costs, damages, fees, or penalties arising from a violation by Lessee or Lessee's agents or contractors of any federal, State, or local law, ordinance, order, or regulation relating to the generation, manufacture, production, use, storage, release or threatened release, discharge, disposal, transportation, or presence of any Hazardous Material on or under the Premises. 13.3 Lessor's General Indemnity. Lessor shall indemnify, defend, and hold harmless Lessee (including Lessee's permitted successors and assigns) and Lessee's subsidiaries, directors, officers, members, shareholders, employees and agents (collectively, "Lessee Indemnified Parties ") from and against any and all third -party claims, losses, costs, damages, and expenses, including PPA Damages and reasonable attorneys' fees, incurred by Lessee Indemnified Parties arising from or relating to (i) Lessor's breach of this Agreement, (ii) the negligence or willful misconduct of Lessor, Lessor's tenants, or Lessor's invitees, or (iii) the failure of building or roof to support, in whole or in part, the System as installed, including Rooftop Lease Agreement 13 171 changes in roof surface incline. Lessor's indemnification obligations under this Section 13.3 shall not extend to any claim to the extent such claim is due to the gross negligence or willful misconduct of any Lessee Indemnified Party. 13.4 Lessor's Environmental Indemnity. Lessor shall indemnify, defend and hold harmless the Lessee Indemnified Parties for, from, and against, any claims, costs, damages, fees, or penalties, including PPA Damages, arising from the presence of any Hazardous Materials on or under the Premises, except to the extent that such presence is attributable to a violation by Lessee or Lessee's agents or contractors of any federal, State, or local law, ordinance, order, or regulation relating to the generation, manufacture, production, use, storage, release or threatened release, discharge, disposal, transportation, or presence of any Hazardous Material on or under the Premises. 14. INSURANCE. 14.1 Insurance Required. Each Party shall maintain in full force and effect throughout the Term, with insurers of recognized responsibility authorized to do business in the State in which the System will be located, insurance coverage in the amounts and types set forth on Exhibit RLA 4. Each policy of insurance maintained by Lessor shall (a) name Lessee as loss payee (to the extent covering risk of loss or damage to the Premises or the System) and as an additional insured as its interests may appear (to the extent covering any other risk); and (b) contain endorsements providing that such policy shall not be cancelled or amended with respect to the named insured and its designees without thirty (30) days' prior written notice to Lessee, in the case of non - payment of premium, at least 10 days' written notice of cancellation shall be provided. Each Party shall, within ten (10) days of written request therefor, furnish current certificates of insurance to the other Party evidencing the insurance required hereunder. Lessee shall add the City as an additional insured to the Lessee's liability insurance. 14.2 Waiver of Subrogation. Each policy of insurance required hereunder shall provide for a waiver of subrogation rights against the other Party, and of any right of the insurers to any set -off or counterclaim or any other deduction, whether by attachment or otherwise, in respect of that policy. 14.3 No Waiver of Obligations. The provisions of this Agreement shall not be construed in a manner so as to relieve any insurer of its obligations to pay any insurance proceeds in accordance with the terms and conditions of valid and collectable insurance policies. The liabilities of the Parties to one another shall not be limited by insurance. 15. MISCELLANEOUS. 15.1 Assignments. Neither Party shall have the right to assign any of its rights, duties, or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. The foregoing notwithstanding, Lessee may assign any of its rights, duties, or obligations under this Agreement, without the consent of Rooftop Lease Agreement 14 `A Lessor, (i) to any of its affiliates, (ii) to any third party in connection with a financing transaction, or (iii) to any purchaser of the System. 15.2 Entire Agreement. This Agreement and the PPA represent the full and complete agreement between the Parties hereto with respect to the subject matter contained herein and supersedes all prior written or oral agreements between the Parties with respect to the subject matter hereof. 15.3 Amendments. This Agreement may only be amended, modified, or supplemented by an instrument in writing executed by duly authorized representatives of Lessee and Lessor. 15.4 No Partnership or Joint Venture. Lessee and Lessee's agents, in the performance of this Agreement, shall act in an independent capacity and not as officers or employees or agents of Lessor. This Agreement shall not impart any rights enforceable by any third party (other than a permitted successor or assignee bound to this Agreement). 15.5 Headings; Exhibits. The headings in this Agreement are solely for convenience and ease of reference and shall have no effect in interpreting the meaning of any provision of this Agreement. Any Exhibits referenced within and attached to this Agreement, including any attachments to the Exhibits, shall be a part of this Agreement and are incorporate by reference herein. 15.6 Remedies Cumulative; Attorneys' Fees. No remedy herein conferred upon or reserved to any Party shall exclude any other remedy herein or by law provided, but each shall be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. If any action, arbitration, judicial reference, or other proceeding is instituted between the Parties in connection with this Agreement, the losing Party shall pay to the prevailing Party a reasonable sum for attorneys' and experts' fees and costs incurred in bringing or defending such action or proceeding (at trial and on appeal) and /or enforcing any judgment granted therein. 15.7 Waiver. The waiver by either Party of any breach of any term, condition, or provision herein contained shall not be deemed to be a waiver of such term, condition, or provision, or any subsequent breach of the same, or any other term, condition, or provision contained herein. Any such waiver must be in a writing executed by the Party making such waiver. 15.8 Severability. If any part, term, or provisions of this Agreement is determined by an arbitrator or court of competent jurisdiction to be invalid, illegal, or unenforceable, such determination shall not affect or impair the validity, legality, or enforceability of any other part, term, or provision of this Agreement and shall not render this Agreement unenforceable as a whole. Instead, the part of the Agreement found to be invalid, unenforceable, or illegal shall be amended, modified, or interpreted to the extent possible to most closely achieve the intent of the Parties and in the manner closest to the stricken provision. Rooftop Lease Agreement 15 173 15.9 Counterparts and Facsimile Signatures. This Agreement may be executed in counterparts, which shall together constitute one and the same agreement. Facsimile or portable document format ( ".PDF ") signatures shall have the same effect as original signatures, and each Party consents to the admission in evidence of a facsimile or photocopy of this Agreement in any court or arbitration proceedings between the Parties. 15.10 No Partnership or Sale... Nothing contained in this Agreement shall be deemed or construed by the Parties or by any third person to create the relationship of principal and agent, partnership, joint venture, buyer and seller real property, or any other association between Lessor and Lessee, other than the relationship of lessor and lessee. 15.11 Memorandum of Lease. Lessor and Lessee agree to execute and record a memorandum of this Lease. Lessor shall execute, with notarization, and deliver to Lessee together with the its initial delivery of the signed Agreement a recordable Memorandum of Lease in a form reasonably acceptable to the Parties ( "Memorandum of Lease "), which shall include the Exhibit RLA 1 description of the Project Site and which Lessee shall then record in the Official Records of the County in which the Project Site is located. Lessee shall be responsible for the cost of recordation. 15.12 Estoppel Certificate. From time to time, upon written request by Lessee, Lessor shall provide within seven (7) days thereafter an estoppel certificate attesting, to the knowledge of Lessor, of Lessee's compliance with the terms of this Agreement, or detailing any known issues of noncompliance. Rooftop Lease Agreement [SIGNATURE PAGE, FOLLOWS] 16 174 IN WITNESS WHEREOF, the Parties have caused this System Site Lease Agreement to be duly executed and delivered as of the Effective Date. LESSEE LESSOR Apex Efficiency Solutions, SBC City of Columbia Heights M Name: Greg Ackerson Name: Title: C.E.O. Title: Exhibit L 17 110 TopValu I Liquor 4950 Central Ave NE Columbia Heights, MN 55421 EXHIBIT RLA 1 PREMISES; PROJECT SITE Exhibit L (RLA -1) iril EXHIBIT RLA 2 ENCUMBRANCES ON LESSOR'S TITLE Exhibit L (RLA -2) 177 EXHIBIT RLA 3 DESCRIPTION OF THE SYSTEM • 39.7 kW Roof mounted —fixed solar array at TopValu I Exhibit L (RLA -3) 178 ApexFacility Solutions • Efficiency Solutions • Arena Solutions EXHIBIT RLA 4 INSURANCE REQUIREMENTS (a) Lessee shall obtain and maintain the following insurance policies: (i) Commerical general liability insurance against liability of not less than two million dollars ($2,000,000) combined single limit per occurrence and annual aggregate. Lessee shall in no event be obligated to repair or replace Lessor's buildings or Premises; and (ii) Lessee may satisfy the insurance requirements contained in this Agreement though any combination of primary and /or excess coverage. (b) Lessor shall obtain and maintain the following insurance policies: (i) Commercial general liability insurance against liability for injury to or death of any Person or damage to property in connection with the use, operation or condition of the Premises of not less than two million dollars ($2,000,000) combined single limit per occurrence and annual aggregate. Lessee shall be named as an additional insured under this liability insurance; (ii) All -risk property insurance covering the replacement value of the Premises and the System. Lessee shall be named as an additional insured under this policy; and (iii) Lessor may satisfy the insurance requirements contained in this Agreement though any combination of primary and /or excess coverage. Exhibit L (RLA -4) 179 CH COLUMBIA HEIGHTS AGENDA SECTION CONSENT ITEM NO. MEETING DATE JANUARY 11, 2016 CITY OF COLUMBIA HEIGHTS - COUNCIL LETTER ITEM: PUBLIC WORKS BLANKET ORDERS FOR 2016 PURCHASES DEPARTMENT: Public Works CITY MANAGER'S APPROVAL: BY /DATE: Kevin Hansen / January 5, 2016 BY /DATE: Background: Public Works has several purchases that are routine in nature and repetitive each year but require Council approval because they exceed the charter limitation of $15,000. Staff is requesting authorization to process blanket purchase orders for 2016 to cover the items described herein. Analysis /Conclusions: The adopted 2016 Public Works budget has the following amounts established for: 2016 Budgeted Amounts • De -icing salt for sanding operations $ 35,500 • Fuel for City vehicles $179,759 • Bituminous asphalt for patching and paving $ 55,700 • Water Service Stop Box Repairs $ 70,000 Public Works Department purchases de -icing salt off of the State of Minnesota Contract, which is bid for the 2015 -2016 winter season for multiple municipalities. The 2015 -2016 contract for salt is in effect from June 8, 2015 until June 7, 2016, so the vendor and unit price may change. The current contract supplier is Compass Materials. In the past, the City has purchased its unleaded and diesel fuel from two sources: the State of Minnesota fuel purchasing contract and the Anoka County Cooperative Purchasing Contract. The City will purchase 50% of its fuel off the state contract and the remainder off the lowest available purchasing contract, which in recent years has been Anoka County. For street patching and repairs, staff obtains unit price bids for asphalt materials annually, and in 2015, the primary source was Commercial Asphalt, but is subject to mix (type) availability on high demand days. For delinquent accounts and foreclosed properties, the City makes water stop box repairs in accordance with City ordinance. Pricing for curb stop repairs is provided on a unit price basis for a one -year term through 2016. Recommended Motion: Move for approval to authorize staff to process blanket purchase orders in an amount not to exceed the 2016 budget amounts for: • De -icing salt for salt /sanding operations purchased off the State of Minnesota Purchasing Contract. • Fuel (unleaded and diesel) for City vehicles from the State of Minnesota Purchasing Contract and the Anoka County Cooperative Agreement. • Bituminous asphalt for patching /paving City streets and alleys from Commercial Asphalt, or City of St. Paul, or T.A. Schifsky & Son's. • Curb stop and service repairs, for delinquent accounts and foreclosed properties. KH:bt 180 CH COLUMBIA HEIGHTS AGENDA SECTION CONSENT ITEM NO. 7J MEETING DATE JANUARY 11, 2016 CITY OF COLUMBIA HEIGHTS - COUNCIL LETTER ITEM: Resolution 2016 -01 Establishing Property Maintenance Code Fees DEPARTMENT: Fire CITY MANAGER'S APPROVAL: BY /DATE: Gary Gorman tv BY /DATE: January 11, 2016 Chapter 5A of City Code, pertaining to the Property Maintenance Code provides for establishing fees through Council Resolution. The last rental license fee change was February 1, 2009. Costs of the rental property licensing and inspection program have risen, along with the number of rental properties over the past seven years. At the last increase in 2009 the City had approximately 700 rental properties. At this time the number has risen to 970 properties. This increase in rental properties has pulled more time and resources away from fire department business. The increase in rental licensing rates will close the gap between actual costs and revenue. The attached city comparison chart shows where our current and proposed rates stand with other older first ring type of communities. The only new item is a proposed fee for Family Exempt properties. In the past these licenses have been free. In the beginning there were only about a dozen or less of these licenses a year and they used very little of our time. These licenses have increased dramatically to 66 this year and are using as much of our time as regular rental properties. Family Exempt properties fill out an application like all other rental properties and we perform an exterior inspection only. We are proposing the basic fee of $55.00 to cover our minimum costs of processing the application. STAFF RECOMMENDATION: Approve Resolution 2016 -01 changing the Property Maintenance Code fees as of February 1, 2016. RECOMMENDED MOTION(S): Motion: Move to waive the reading of Resolution 2016 -01, there being ample copies available to the public. Motion: Move to adopt Resolution 2016 -01, being a Resolution establishing Property Maintenance Code fees as of February 1, 2016. ATTACHMENTS: License fee comparisons Resolution 2016 -01 181 z 0 v N .. � N o CL 0 ` L N U N al L v N o0 'y Y U a a -6 v Z a `6 c o m aJ 5a J Ca — aJ C �` �, N O F+ N 3 , Q = M �C ++ N C O - O' M _ �C to L CO -C — aJ m Cu L C Y a) O J S CL i� s 3 G L C Q C c C 3 3 a+ Y o C o Y CL " O V �, H U Q v� U m m L LL n � vi � Z U Z ° v*'i � U Z � m 2 _ � Q r^ V F' z 0 o 0 o 0 0 0 0 0 o 0 0 0 0 0 o 0 o 0 in 0 O 0 o 0 0 0 o 0 0 0 0 0 o 0 0 0 o 0 0 0 Ln 0 o° ° Z D O I.ri i, o6 o 0 o oo M v o v Ln o M c,i N o -4 I-� O uS oo 0 �O 0 LO 0 �O of Ln oe a o N 0 �4 0 oo oo �T r, M r� o ° QV i!i L? [Y V? M i/T M VT M V} M VT M VT M �/} M �? N V1 N V} N V} N V� N V? N V► N VT N �/? r1 VT c-I V? �--� VT -i VT iA Z W V_ M J N $ ` J` a` y Q ZZ i L Y =3 Y O Y W Y U C N Z f0 aJ C CL Y N C O = R d a+ d d C L Oa O C2 t6 a) Z v 6 C a) C C Y � +W Y Ii N . L °- O - � N [L m v N Q N O N z C O O 2 L C Q U U in m LL Co U Z Z m N U V) to ~ Z0 O O 0 O 0 O 0 O 0 O 0 O 0 O o O O O m o o O O O o O 0 O o O O O o O 0 O 0 O o O In °o °o O t6 I� L 1 n l6 N l6 O o6 Ol N CO 6 Vl O in I� M n N 6 N O N O N rl �-i o ri O c-I O 00 O d' V. M lD `-I N O a M M M V> M V) N V> N V)- N V)- N V), N 44 N -Ln N Vt N V)- N -Ln N v► N t4 N Ln ci V4 ci J). V� V� V), V ` o a a` u ^v W � z c L Y c i Z ao '� Y ra a ` i'n L oa '� — — N — 3 — a1 to ' X iai 0 t ai U m CL _ a) Y @ CL m T C CL m CL — r° O °" a1 Q ai a L co U CLO m Y Y @ C L E C O cc O Ln m Q r r °O 00 d 'z vYi u '� 7 •i C Q O O N O > O Q� u z m m Zn m u° vii v� u° LL Ln z z z = L,n > Q 4 z ~ O O o O 0 O 0 o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 In 0 O 0 m 0 0 0 0 0 0 0 0 0 0 O Q O O O Ln O O M O O O N O Ln O to O 11n I.n N N ci W W W � W � V Q t V} M V} N VT N in N V} N V} ri NF .--I V} r-I V} 14 V► .-i V} iq V} ci Vf ri V� 11 V? t4 VT V} A V? V). [/T L v 0 CL 0 N C L rr �^ N 4-J 3 v 1MI11 �I / -C rTL^ '� C ��D+. 3 J I�Yy = cJ C Y OC d Y O v1 :3 d IAN G Q t to U C .T. !6 a C i M C O 'O d Y @ CL N a) O_ !Z y� O CL f0 m �� LL W J m T e 7 N aJ C C — Y £ C a) w (n +.' C .3 O ? N = N t C N C .O C C Y C Y in t O w E l7 3 o a v) C ! p� C N o 3 Q 'U 3: c J z o z c_ o o 2 L 0 Q z N z CO CO U m U N m to N LL of N O U ~ Q O O O` C o O O o o O O o O 0 N O O ON N O O O O O Q O O .6 Ql O 01 In (� O l0 O n O IA O V1 in cF O V O N O c O O ^ o0 lD O lD O Ln O Ln O 't O M V> V> V4 V� V> in 44 V> V> t4 V)� Vr to <n V> Vr Q U N W a RESOLUTION NO. 2016 -01 A RESOLUTION OF THE CITY COUNCIL FOR THE CITY OF COLUMBIA HEIGHTS, MINNESOTA, ESTABLISHING PROPERTY MAINTENANCE CODE FEES AS AUTHORIZED BY CHAPTER 5A OF CITY CODE OF 2005 Whereas, Ordinance No. 1490, City Code of 2005, pertaining to Property Maintenance Code regulations provides for the establishing of fees; and Whereas, the City has authorized changes to Property Maintenance Code fees from time to time; and Whereas, the City finds there is a need to modify the Property Maintenance Code fee structure at this time; and Now, therefore, in accordance with the foregoing, and all ordinances and regulations of the City of Columbia Heights, the City Council of the City of Columbia Heights makes the following: The Property Maintenance Code fee structure listed below shall be adopted and effective February 1, 2016. Rental property license Rental property license Rental property license Rental property license Rental property license Family Exempt properti RENTAL LICENSING FEES - 1 thru 3 units —4 units - 5 thru 10 units - 11 thru 30 units — over 30 units es License Reinstatement after Revocation /Suspension License Transfer Fee Licensing Late Fee Reinspection Fee $175.00 per building $55.00 per building plus $32.50 per unit $55.00 per building plus $26.00 per unit $55.00 per building plus $21.00 per unit $55.00 per building plus $15.00 per unit $55.00 Five times annual license fee $25.00 $100.00 $100.00 per inspection ABATEMENT FEES Immediate Abatement Administrative Fee $75.00 per abatement Abatement Administrative Fee $200.00 per abatement 183 City of Columbia Heights - Council Resolution Page 2 Passed this day of 12015 Offered by: Seconded by: Roll Call: Gary L. Peterson, Mayor Attest: Katie Bruno, City Clerk /Council Secretary 184 0 CH COLUMBIA HEIGHTS AGENDA SECTION CONSENT ITEM NO. 7K MEETING DATE JANUARY 11, 2016 CITY OF COLUMBIA HEIGHTS - COUNCIL LETTER ITEM: Appointments to Fire Relief Association Board of Trustees DEPARTMENT: Fire CITY MANAGER'S APPROVAL: BY /DATE: BY /DATE: / BACKGROUND: State Statute 424a.04 mandates that the City Council annually appoint two trustees to the Columbia Heights Volunteer Firefighters Relief Association board of trustees. Under the Statute one of the trustees must be an elected official and the other can be an elected or appointed official. STAFF RECOMMENDATION: To follow State Statute the Columbia Heights Volunteer Firefighters Relief Association is requesting the City Council appoint Councilmember John Murzyn, Jr. and City Manager Walt Fehst to the board of trustees. RECOMMENDED MOTION(S): Move to appoint Councilmember John Murzyn, Jr. and City Manager Walt Fehst to the Columbia Heights Volunteer Firefighters Relief Association Board of Trustees for 2016. 185 aPPOINTEMNTS TO fIRE rELIEF bOARDS OF TRUSTEES CH COLUMBIA HEIGHTS AGENDA SECTION CONSENT ITEM NO. 7L MEETING DATE JANUARY 11, 2016 CITY OF COLUMBIA HEIGHTS - COUNCIL LETTER ITEM: ADOPT RESOLUTION 2016 -002 DESIGNATING OFFICIAL DEPOSITORIES FOR THE CITY OF COLUMBIA HEIGHTS DEPARTMENT: Finance CITY MANAGER'S APPROVAL: BY /DATE: Jackie Zillmer /January 5, 2016 BY /DATE: % BACKGROUND: Each year the council designates by resolution the depositories for city funds and investments. The attached resolution follows the general format of the resolution passed in previous years. Under this resolution, investment firms that may be used by the city must be located in the State of Minnesota, and all investments must comply with authorized investments as set forth in Minnesota statutes. Although the City's general banking transactions are conducted through Northeast Bank, the City of Columbia Heights does maintain accounts at Wells Fargo Bank of Minnesota, N.A. and U.S. Bank for certain ancillary or specialized services. STAFF RECOMMENDATION: It is staff's recommendation that we maintain these three banking relationships as they meet the City's current needs and, in combination, they provide capacity for addressing the City's evolving needs for electronic banking services. RECOMMENDED MOTION(S): Move to waive the reading of Resolution 2016 -002, there being ample copies available to the public. Move to adopt Resolution 2016 -002, being a resolution designating official depositories for the City of Columbia Heights. ATTACHMENTS: Resolution 2016 -002 186 RESOLUTION NO. 2016 -002 A resolution of the City Council for the City of Columbia Heights, Minnesota, designating official depositories for the City of Columbia Heights. Now, therefore, in accordance with all ordinances and regulations of the City of Columbia Heights, the City Council of the City of Columbia Heights makes the following: ORDER OF COUNCIL IT IS HEREBY RESOLVED, that Northeast Bank, Wells Fargo Bank of Minnesota, N.A., and U.S. Bank are hereby designated as depositories of the funds of this corporation. IT IS FURTHER RESOLVED, that checks, drafts, or other withdrawal orders issued against the funds of this corporation on deposit with said banks shall be signed by the following: Mayor City Manager Treasurer - Finance Director and that said banks are hereby fully authorized to pay and charge to the account of this corporation any checks, drafts, or other withdrawal orders. BE IT FURTHER RESOLVED, that Northeast Bank, Wells Fargo Bank of Minnesota, N.A., and U.S. Bank are hereby requested, authorized and directed to honor checks, drafts or other orders for the payment of money drawn in this corporation's name, including those drawn to the individual order of any person or persons whose name or names appear thereon as signer or signers thereof, when bearing or purporting to bear the facsimile signatures of the following: Mayor City Manager Treasurer - Finance Director and that Northeast Bank, Wells Fargo Bank of Minnesota, N.A., and U.S. Bank shall be entitled to honor and to charge this corporation for all such checks, drafts or other orders, regardless of by whom or by what means the facsimile signature or signatures thereon may have been affixed thereto, if such facsimile signature or signatures resemble the facsimile specimens duly certified to or filed with the Banks by the Treasurer or other officer of his corporation. BE IT FURTHER RESOLVED, with respect to limited - purpose imprest bank accounts at Northeast Bank, the applicable signatories in the foregoing part of this resolution, for both original and facsimile signatures, shall be any two of the three persons listed above. BE IT FURTHER RESOLVED, that any and all resolutions heretofore adopted by the City Council of the corporation and certified to as governing the operation of this corporation's account(s) with it, be and are hereby continued in full force and effect, except as the same may be supplemented or modified by the foregoing part of this resolution. 187 City of Columbia Heights - Council Resolution 2016 -002 Page 2 BE IT FURTHER RESOLVED, that all transactions, if any, relating to deposits, withdrawals, re- discounts and borrowings by or on behalf of this corporation with said banks prior to the adoption of this resolution be, and the same hereby are, in all things ratified, approved and confirmed. BE IT FURTHER RESOLVED, that any bank designated above as a depository, may be used as a depository for investment purposes, so long as the investments comply with authorized investments as set forth in Minnesota Statutes. BE IT FURTHER RESOLVED, that any brokerage firm with offices in the State of Minnesota may be used as a depository for investment purposes so long as the investments comply with the authorized investments as set forth in Minnesota Statutes. Passed this day of , 2015 Offered by: Seconded by: Roll Call: Gary L. Peterson, Mayor Attest: Katie Bruno, City Clerk /Council Secretary 188 CH COLUMBIA HEIGHTS AGENDA SECTION CONSENT ITEM NO. 7M MEETING DATE JANUARY 11, 2016 CITY OF COLUMBIA HEIGHTS - COUNCIL LETTER ITEM: ADOPT RESOLUTION 2016 -003 TO ACCEPT CERTAIN DONATIONS RECEIVED BY THE CITY OF COLUMBIA HEIGHTS DEPARTMENT: Finance CITY MANAGER'S APPROVAL: BY /DATE: Jackie Zillmer /January 5, 2016 BY /DATE: BACKGROUND: Annually, staff compiles in resolution format a list of private donations received by the City and submits these for formal acceptance by the City Council. The main intent of this is to comply with Minnesota Statute 465.03 Gifts to Municipalities. That statute provides that municipalities can accept donations subject to donor terms, if the acceptance is by a resolution approved by at least two - thirds of the City Council. It should be noted that this statute prohibits accepting donations with religious or sectarian purposes STAFF RECOMMENDATION: Staff recommends that the City Council adopt the following motions: RECOMMENDED MOTION(S): Move to waive the reading of Resolution 2016 -003 there being ample copies available to the public. Move to adopt Resolution 2016 -003 being a resolution to accept certain donations received by the City of Columbia Heights. ATTACHMENTS: Resolution 2016 -003 189 RESOLUTION NO. 2016 -003 A resolution of the City Council for the City of Columbia Heights, Minnesota, to accept certain donations received by the City of Columbia Heights. Whereas, the City Of Columbia Heights has received the following donations: Date Donor 5/11/2015 HESSELROTH,TED 12/30/2015 COLUMBIA HEIGHTS PUBLIC LIBRARY FOUNDATION 10/2/2015 ANONYMOUS 1/21/2015 HANSEN, ROSALI E 6/17/2015 PALS 9/28/2015 COLUMBIA HEIGHTS LIONS CLUB 3/13/2015 FINANCIALONE 6/25/2015 COLUMBIA HEIGHTS SISTER CITY 6/25/2015 NORTHEAST STATE BANK 6/25/2015 COLUMBIA HEIGHTS POST NO 230 V.F.W. 5/5/2015 COLUMBIA HEIGHTS ATHLETIC BOOSTERS 5/14/2015 COLUMBIA HEIGHTS LIONS CLUB 7/6/2015 COLUMBIA HEIGHTS ATHLETIC BOOSTERS 8/18/2015 COLUMBIA HEIGHTS ATHLETIC BOOSTERS 10/1/2015 COLUMBIA HEIGHTS ATHLETIC BOOSTERS 10/1/2015 COLUMBIA HEIGHTS ATHLETIC BOOSTERS 4/20/2015 TRI DGELL,DAVI D 8/18/2015 FRIENDS OF FRIDLEYSENI0RS 12/31/2015 COLUMBIA HEIGHTS ATHLETIC BOOSTERS Doc Ref Amount Purpose 153913 100.00 Library 157119 2,080.00 Library 1019 6.60 General 153041 100.00 Tree donation 154293 100.00 Fi reworks 155721 1,000.00 Fi reworks 153425 100.00 Heights Idol 154384 100.00 Heights Idol 154385 100.00 Heights Idol 154386 100.00 Heights Idol 153870 200.00 Jamboree 153956 280.00 Jamboree 154469 15,000.00 Recreation 155066 450.00 Recreation 155801 300.00 Recreation 155802 225.00 Recreation 153743 10.00 Seniors 155065 250.00 Seniors 20,501.60 Batti ng Cage a nd PitchingMa chi ne Now, therefore, in accordance with the foregoing, and all ordinances and regulations of the City of Columbia Heights, the City Council of the City of Columbia Heights makes the following: ORDER OF COUNCIL BE IT HEREBY RESOLVED by the City Council of the City Of Columbia Heights, that the City of Columbia Heights accepts these donations, subject to the donor - prescribed terms listed. 190 City of Columbia Heights - Council Resolution 2016 -003 Passed this day of 12016 Offered by: Seconded by: Roll Call: Gary L. Peterson, Mayor Attest: Katie Bruno, City Clerk /Council Secretary 191 Page 2 CH COLUMBIA HEIGHTS AGENDA SECTION CONSENT ITEM NO. 7N MEETING DATE JANUARY 11, 2016 CITY OF COLUMBIA HEIGHTS - COUNCIL LETTER ITEM: Designation of Legal Newspaper DEPARTMENT: Administration CITY MANAGER'S APPROVAL: r BY /DATE: Katie Bruno BY /DATE: BACKGROUND: Annually the City Council designates an official newspaper for publishing of legal notices and other required publications. State Statute 331A addresses the requirements of a legal newspaper, some of the requirements include that the newspaper: • Be published at least twice a month • Be registered with the Secretary of State's office • Be circulated in the political subdivision which it purports to serve • Have its known office of issue established in either the county in which it lies, or the political subdivision which the newspaper purports to serve • File a copy of each issue immediately with the State Historical Society • Submit to the secretary of state by December 31 a filing containing the newspaper's name, address of its known office of issue, telephone number, and a statement that it has complied with all of the requirements of this section and paid the fee. The Sun Focus submitted a letter of interest for 2016. The Sun Focus fees are $11.50 (a .20 increase from last year's quote) per column inch for first insertion and $6.25 (a .55 increase from last year's quote) per column inch, for each subsequent insertion. Most of the legal notices we submit are subsequent insertions. The Star Tribune charges $5.60 per inch wide line. The Star Tribune is approximately four times more expensive than the Sun Focus. Staff was asked to look into the Northeaster, however it does not meet the requirements of a legal newspaper, as it is not registered with the Secretary of State. RECOMMENDED MOTION(S): Motion to designate the Sun Focus News as the City of Columbia Heights official legal newspaper for 2016. ATTACHMENTS: Bid Letter from Sun Media 192 Designation of Legal Newspaper Memo MEDIA December 2015 City of Columbia Heights City Council 590 - 40th Avenue NE Columbia Heights, MN 55421 Dear City Council Members: Please accept the following bid from the Columbia Heights /Fridley Sun -Focus for legal newspaper designation for the City of Columbia Heights. This newspaper is qualified by the State of Minnesota as a legal newspaper under Minnesota Statutes Section 331A.02, Subd. 1. The following rate structure for legals is effective January 1, 2016: First insertion: $11.50 per column inch Subsequent insertions: $6.25 per column inch Characters per inch: 320 Lines per inch: 9 A notarized affidavit will be provided for each notice published. Additional affidavits are $2.50 each. A $20.00 charge will be assessed on legal notices that require typing. All published legal notices are posted on the Sun -Focus website at no additional charge. The Sun -Focus is published weekly on Fridays. The deadline is 11:00 a.m. on Monday for publication on Friday of the same week. Please email legal notices to sunlegals @ecm- inc.com. Thank you for considering the Sun -Focus as the official newspaper for the City of Columbia Heights for the upcoming year. We appreciate the opportunity to serve the needs of your community. Sincerely, Michael Jetchick Sales Manager 10917 VALLEY VIEW ROAD, EDEN PRAIRIE, MN 55344 • 952- 846 -2019 • FOCUS.MNSUN.COM 193 CH COLUMBIA HEIGHTS AGENDA SECTION WORK SESSION ITEM NO. 70 MEETING DATE JANUARY 11, 2016 CITY OF COLUMBIA HEIGHTS - COUNCIL LETTER ITEM: Appointment of Council Liaisons and Staff Assignments to City Boards & Commissions and External Boards DEPARTMENT: Administration CITY MANAGER'S APPROVAL: BY /DATE: Katie Bruno BY /DATE: if. BACKGROUND: Annually the Council appoints liaisons to City Boards & Commissions as well as assigning delegates to External Boards. City Boards and Commissions include; Library Board, Park & Recreation Commission, Planning & Zoning Commission, Traffic Commission and Charter Commission. External Boards include; The League of Minnesota Cities, Mississippi Water Management Organization, Rice Creek Watershed Advisory Board, North Star Corridor Development Authority and The Anoka County Joint Law Enforcement Council. STAFF RECOMMENDATION: RECOMMENDED MOTION(S): To make recommendations for appointments to various boards and commissions for the 2016 calendar year. ATTACHMENTS: Listing of recommended appointments 194 G: \Admin\ Council \Worksessions \2016 \Appoinment of Liaisons.docx 2016 COUNCIL LIAISONS AND STAFF ASSIGNMENTS TO CITY BOARDS & COMMISSIONS AND EXTERNAL BOARDS City Boards and Commissions: Library Board Park & Recreation Commission Planning & Zoning Commission Traffic Commission Charter Commission External Boards: The League of Minnesota Cities Mississippi Water Management Organization Rice Creek Watershed Advisory Board North Star Corridor Development Authority The Anoka County Joint Law Enforcement Council Anoka County Fire Protection Council Columbia Heights School District Liaison Council Liaison Council Liaison Council Liaison Council Liaison Council Liaison (Alternate) Mayor Peterson Mayor Peterson Councilmember Murzyn Councilmember Schmitt Councilmember Nawrocki Councilmember Williams Delegate Councilmember Nawrocki Alternate City Manager Fehst Delegate Councilmember Schmitt Alternate Linda Johnson (City of Hilltop) Delegate Councilmember Williams Alternate Kevin Hansen Delegate Councilmember Nawrocki Alternate Fehst Delegate Mayor Peterson Alternate Scott Nadeau Delegate Councilmember Murzyn Alternate Gary Gorman Delegate Councilmember Schmitt 195 2016 COUNCIL LIAISONS AND STAFF ASSIGNMENTS TO CITY BOARDS & COMMISSIONS AND EXTERNAL BOARDS City Boards and Commissions: Library Board Park & Recreation Commission Planning & Zoning Commission Traffic Commission Charter Commission External Boards: The League of Minnesota Cities Mississippi Water Management Organization Rice Creek Watershed Advisory Board North Star Corridor Development Authority The Anoka County Joint Law Enforcement Council Anoka County Fire Protection Council Columbia Heights School District Liaison Council Liaison Council Liaison Council Liaison Council Liaison Council Liaison (Alternate) Mayor Peterson Mayor Peterson Councilmember Murzyn Councilmember Schmitt Councilmember Nawrocki Councilmember Williams Delegate Councilmember Nawrocki Alternate City Manager Fehst Delegate Councilmember Schmitt Alternate Linda Johnson (City of Hilltop) Delegate Councilmember Williams Alternate Kevin Hansen Delegate Councilmember Nawrocki Alternate Fehst Delegate Mayor Peterson Alternate Scott Nadeau Delegate Councilmember Murzyn Alternate Gary Gorman Delegate Councilmember Schmitt 196 CH COLUMBIA HEIGHTS AGENDA SECTION CONSENT ITEM NO. 7P MEETING DATE JANUARY 11, 2016 CITY OF COLUMBIA HEIGHTS - COUNCIL LETTER ITEM: Resolution Authorizing the Submittal of the 2016 Community Development Block Grant Funding Application DEPARTMENT: Community Development CITY MANAGER'S Af PROVAL: Z BY /DATE: Joe Hogeboom, January 6, 2016 BY /DATE: BACKGROUND: Each year, Anoka County manages the distribution of federal Community Development Block Grant (CDBG) funds. Anoka County has established a list of priority projects, which receive first consideration from the County Board. For 2016, staff would like to apply for funding related to the construction of a park building to be located in the east section of LaBelle Park, on Circle Terrace Boulevard. This section of LaBelle Park is being referred to as "City of Peace Park" in promotional materials. The proposed park building would be used for a number of different activities. The building could be used for recreation programming, school events and tutoring sessions, police outreach, neighborhood events, voting, and other activities. The Police Department's outreach to the Circle Terrace neighborhood over the past several years has shown that the neighborhood strongly desires a central meeting place. Providing an opportunity to enhance neighborhood outreach will help facilitate the goals and principals of the highly successful Community Oriented Policing (COP) model currently in place in Columbia Heights. Staff would like to request $300,000 in CDBG funding for this project, which is the maximum amount that the County will allocate to any one project. Staff believes that construction of the proposed building, as well as other improvements to the park, will be accommodated within that budget. Staff met with the Anoka County Community Development Department, and was told that this project would be considered a high priority and would likely be considered for funding. The 2016 CDBG application is due on Friday, January 15th. Therefore, staff must bring the application for formal consideration to the City Council at its January 11th meeting. Staff has discussed this application at the January 41h City Council Work Session. RECOMMENDED MOTION(S): Motion: Move to waive the reading of Resolution No. 2015 -06, there being ample copies available to the public. Motion: Move to adopt Resolution 2016 -06, authorizing the submittal of the 2016 Community Development Block Grant Funding Application for the development of a park and recreation building at the City of Peace Park, 1305 Circle Terrace Boulevard, NE. ATTACHMENTS: Location Map (1 page) Resolution 2016 -06 (1 page) 2016 CDBG Application (15 pages) 197 Resolution Authorizing the Submittal of the 2016 CDBG Funding Application N CO uj 1 1 co to 44 uj to t V cc 04 cl rm) CM IN icl 0 c� M 0 CL W m 4-J 4- (U O L- U & 0 Q. 0 L. CL a to V V- Q) (1) 0 0- 2 CL tU (0 lwk via M 'D 4MW Lo N RESOLUTION NO. 2016 -06 A resolution of the City Council of Columbia Heights, Minnesota, Authorizing the Submittal of the 2016 Community Development Block Grant Funding Application for the Development of a Park and Recreation Building at the City of Peace Park, 1305 Circle Terrace Boulevard, NE. WHEREAS, the City of Columbia Heights has adopted a Park Plan that identifies the need for a park and recreational facility at 1305 Circle Terrace Boulevard, NE; and WHEREAS, the City of Columbia Heights, and its Economic Development Authority, have identified goals and objectives to continue efforts to improve the Circle Terrace Neighborhood; and WHEREAS, the City of Columbia Heights is seeking Community Development Block Grant (CDBG) funds in an amount of $300,000 for the construction of a park and recreational facility at 1305 Circle Terrace Boulevard; and WHEREAS, the use of CDBG funds are consistent with the program's national objective of benefiting low and moderate income people. NOW, THEREFORE BE IT RESOLVED that the city of Columbia Heights acts as the legal sponsor for the 2016 Community Development Block Grant Program to be submitted by January 15, 2016; and BE IT FURTHER RESOLVED that the City of Columbia Heights has the legal authority to apply for financial assistance, and the institutional, managerial and financial capability to ensure adequate protection administration; and BE IT FURTHER RESOLVED that the City Manager, or his designee, and the Mayor, are hereby authorized to execute such agreements as are necessary to implement the project on behalf of the application; and BE IT FURTHER RESOLVED that the City Council of the City of Columbia Heights, Minnesota has authorized staff to submit an application for $300,000 for the construction of a park and recreational building at 1305 Circle Terrace Boulevard, NE. ORDER OF THE CITY COUNCIL Passed this day of , 2016 Offered by: Seconded by: Roll Call: Gary L. Peterson, Mayor Attest: Katie Bruno, City Clerk Resolution 2016 -06 199 Anoka County MINNESOTA The Community Development Block Grant (CDBG) /HOME Investment Partnership Program project application is due to the Anoka County Community Development office no later than 12 Noon on Friday, January 15, 2016. An Application Guide is available, online, with instructions on completing the application, details on submission of the application, and contact information is provided in the event there are additional questions. Anoka County Community Development is hosting a Technical Assistance Training at 10:00 a.m. on Thursdayy. December 10, 2015 - it is highly recommended that all applicants attend this training opportunity. GENERAL INFORMATION ❑✓ Requesting CDBG Funding F-1 Requesting HOME Funding F] Requesting CHDO /HOME Funding Title of Project: City of Peace Park - Recreation Center Applicant: City of Columbia Heights Contact Person /Title: Joseph S. Hogeboom, Community Development Director Street Address: 590 40th Avenue NE City: Columbia Heights Zip Code: 55421 Phone #: 763 - 706 -3675 Email: jogeboom@columbiaheightsmn.gov Type of Organization: ❑✓ Local Government F-1 Non -Profit Organization ❑ For -Profit Organization F1 Institution of Higher Education Faith -Based Organization ❑ Public Agency Community Housing Development Organization (CHDO) Community Based Development Organization (CBDO) Anoka County Department: Other (specify): PROJECT INFORMATION Project Address: 1305 Circle Terrace Boulevard NE, Columbia Heights, MN 55421 Project Service Area: Columbia Heights, Hilltop, So. Fridley This project will be completed in: 1:1 6 months ❑✓ 12 months F-1 18 months Project Activity (Select the one HUD activity listed in the Application Guide that best fits this project; example: 030 Fire Stations or 14B Rehabilitation: Multi-Unit Residential): 03F - Parks, Recreational Facilities FUNDING REQUEST Amount ($) of Request: $300,000 Amount ($) of Applicant Resources: $50,000 Amount ($) from Other Sources: Total Project Cost ($): $350,000 Does the total project cost account for federal prevailing wages if applicable (reference the Application Guide for information on federal prevailing wage)? F] No ❑✓ Yes Can this project be partially funded? Indicate if a loan or grant is preferred: No❑ Yes Loan a Grant Will CDBG /HOME funding be used to leverage additional funding? W1 No ❑ Yes Have all other funding sources been formally committed? F] No ❑✓ Yes Is there a fiscal agent other than the applicant? No F1 Yes *If, yes, was selected, please provide contact information: BUDGET Consult the Application Guide for requirements on this section. The budget proposal is in an Excel document available online; a hard copy of the budget in that form must be submitted with this proposal. MATCH - HOME FUNDED PROJECTS ONLY ❑✓ N/A - Applying for CDBG Funding Specify the type of MATCH contribution the applicant will use to meet the 25% MATCH requirement. BUDGET NARRATIVE Provide an explanation of the project budget and funding sources including leveraged funds and how they are applied towards your project: $300,000 is requested for the construction of a Park and Recreational facility, as well as site work to the park. PROJECT NARRATIVE Project description: As a mature inner -ring suburban community, Columbia Heights has struggled in recent years to provide outreach and opportunities to new residents. Many new generation Columbia Heights residents are from different cultural backgrounds, making access to recreational, educational and community enrichment opportunities a challenge. One of the more challenging areas of the community centers around the Circle Terrace neighborhood, and the intersection of State Trunk Highway 65 (Central Avenue) and Anoka County State Aid Highway 2 (40th Avenue NE). In fact, this particular neighborhood is within the only Qualified Census Tract (515.01) in Anoka County. As such, this area is considered a "Difficult Development Area" by the U.S. Department of Housing and Urban Development (HUD). Over the past five years, the City of Columbia Heights has increased its efforts to provide services to this area. A small play lot existed on Circle Terrace Boulevard for a number of years. When the opportunity presented itself for the City to acquire additional property, the City Council ceased the opportunity. The City now owns .58 acres in the heart of the Circle Terrace neighborhood. In the summer of 2015, the City Council approved a Park Plan that would enable the expansion of the play lot into the "City of Peace Park" and add a much needed recreational service building. The proposed recreational facility would be approximately in size, and would serve as a hub for a wide variety recreational and community outreach uses. Recreational programming for youths, adults and seniors would take place within the facility. The Columbia Heights School District has also expressed an interest in utilizing the facility for educational outreach activities such as adult education classes, enrichment opportunities and community activities. The Columbia Heights Police Department, which practices the principals of Community Oriented Policing, will also use the building for public community outreach and events. Additional site improvements would also occur at the City of Peace Park, including the construction of a new sport court facility, the upgrading of playground equipment and the enhancing of landscaping and other features. Describe the need and urgency for the proposed project. Include the consequences if the project is not funded: Because of the inequities that exist between southern Anoka County and other areas of the twin cities with respect to access to recreational and extracurricular opportunities, it is important that the City of Peace Park be development and enhanced as quickly as possible. As mentioned in the attached Funding Proposal, not having access to quality community engagement activities has proven to lead to higher instances of crime and other negative consequences. Also, with the rising costs of building materials and labor, it is critical that the facility be developmed as quickly as possible. Describe the applicant's fiscal management including financial reporting and record keeping: The City of Columbia Heights does have the fiscal management tools necessary to complete this project and administer the program. The City's annual budget reports, as well as the annual Comprehensive Annual Financial Report, highlight the financial capabilities of the City of Columbia Heights. PUBLIC INFRASTRUCTURE - CDBG FUNDING N/A - Applying for HOME Funding Does this project involve infrastructure? 1-1 No ❑✓ Yes, complete the following If the application is requesting assistance for water /sewer improvements, street improvements, or other infrastructure, answer the following questions. Identify the urgency of the improvement: (Is a public building considered infrastructure ?) Is the improvement included in the city /town improvement plan? Yes, the City's Comprehensive Plan refers to individual area plans for park and recreational planning. This site is part of the approved LaBelle Park Master Plan. What circumstances led to the need for federal assistance? The Circle Terrace neighbhorhood is a lower- income community which is often times unable to provide all of the necessary community services to its residents. Federal assistance is necessary in order to development this greatly needed facility. SLUM /BLIGHT REMOVAL (NATIONAL OBJECTIVE) - CDBG FUNDING F1 N/A - Applying for HOME Funding Does this project qualify as Slum /Blight? ❑✓ No ❑ Yes, complete the following: If this project is for slum /blight removal, verification must be made in order to assure that a CDBG- funded activity meets the national objective regarding slums and blight. Verification for this project falls within one of the following categories: ❑ Elimination of Slums and Blight Area Basis (SBA) ❑ Elimination of Slums and Blight Spot Basis (SBS) Describe /identify the site location or boundaries - Include map attachment: This site is located at 1305 Circle Terrace Boulevard, in Columbia Heights. A Site Plan of the park, which includes the location of the proposed building, is attached. Indicate the percentage of building or public improvements that were deteriorated when the project was designed as slum /blight, and the year of designation: na % designated in na (year) Describe the public improvement /type of condition: na Describe the conditions that qualify the project as slum or blight: na BENEFIT TO LOW AND MODERATE INCOME PEOPLE (NATIONAL OBJECTIVE) - CDBG FUNDING ❑ N/A - Applying for HOME Funding Does this project meet the Benefit to Low and Moderate Income People national objective? ❑ No ❑✓ Yes, complete the following Identify one benefit group that will meet the Low /Moderate Income national objective. Carefully review the following activity definitions in the Application Guide before selecting an option ❑ Low /Moderate Income Jobs (LMJ) (Creation or Retention) ❑ Low /Moderate Income Clientele (LMC) (Public Facilities or Organizations) Low /Moderate Income Area Benefit (LMA) - Required: outlined in service area map ❑ Low /Moderate Income Housing (LMH) (Construction and Rehabilitation) ❑Single - Family Housing ❑Multi- Family Housing Describe the process for collecting income and beneficiary data, including who will collect it and how the data will be stored: Once the recreational building is operational, the City will conduct volunteer surveys which seek income and beneficiary data of program participants and other building users. The data would be securely stored at Columbia Heights City Hall. HOUSING ACTIVITIES Is this project a housing activity? Fv—(] No ❑ Yes, complete the following *All housing activities will be considered for HOME funds before the use of CDBG Type of Housing: Single - Family F2 -, 3 -, or 4 -plex ❑ Multi- Family Tenancy: ❑ Owner - Occupied Renter - Occupied Income Levels of Clients: ❑ Townhome ❑ Single -Room Occupancy 0 -30% Area Median Income 31 -50% Area Median Income F151 -60% Area Median Income ❑ 61 -80% Area Median Income Other: Non - Homeless Special Needs Population Served: Fl Elderly (62 years +) ❑ Developmentally Disabled F] Severe Mental Illness ❑ HIV /AIDS Total Number of Units in Project: Number Occupied: Number Vacant: Benefit to Homeless: F] N/A ❑ Homeless Individuals FHomeless Families Alcohol /Drug Abuse ❑ Physical Disability Victims of Domestic Violence ❑ N /A Describe how the location of the housing opportunity, in whole or part, provides and promotes greater choice and will not create undue concentration of poverty in any given area: na What are the current racial and income demographics of the neighborhood (not city) the project is located in? na Describe how the project location will connect residents to jobs, transportation, and community resources: na 10 ACQUISITION, REHABILITATION, DEMOLITION, CLEARANCE, AND CONVERSION ❑ N/A - Applying to administer a Down Payment Assistance Program (DPA) or Tenant Based Rental Assistance (TBRA) Program Type of Project: ❑ Single - or Multi - Family Housing ❑ Farm Land and Structures ❑ Vacant Land; Free From any Structures ❑ Business, Commercial, or Industrial Site Control - Indicate the status of the project site and attach documentation: ❑ Applicant owns property - Date acquired: ❑ Lease - Expiration date: ❑ Option to Purchase - Expiration date: ❑ Other - Describe: Zoning - Is the site zoned for the proposed activity? ❑ No ❑ Yes *If, no, provide an explanation and timetable to change zoning or obtain variance: Appraisal - If request is for property acquisition, has an appraisal been completed within the last 12 months? ❑ No; current fair market value is: ❑ Yes; attach copy to application Relocation - Will the project require relocation (moving) of any occupants of a structure? ❑ Temporary ❑ Permanent ❑ No relocation necessary General Information Notice - Has a General Information Notice to sellers and /or tenants of Relocation or No Relocation benefits been completed? ❑ Yes; provided to occupants on the following date: ❑ No; will be completed on the following date: ❑ N/A III I ENVIRONMENTAL CONCERNS N/A - Applying to administer a Down Payment Assistance Program (DPA) or Tenant Based Rental Assistance (TBRA) Program Is the project currently underway? F1Yes; and a federally- accepted environmental review has been completed Yes; but there has not been an environmental review F] No; project will not begin before an environmental review is completed by Anoka County Noise Abatement and Control: Distance from nearest railroad Distance from nearest major roadway Distance from nearest airport ❑ More, or F] Less than 3,000 feet F] More, or II Less than 3,000 feet RMore, or ❑ Less than 3,000 feet Wetland Protection - Is there wetland associated with the proposed project? FI No F] Yes Flood Hazard Area - Is there evidence or knowledge that a portion of the proposed project is located in a 100— or 500 -year flood plain? F-1 No 1-1 Yes Does the project include repair, rehabilitation, or conversion of existing building /facilities? F] No F-1 Yes Does the project involve new construction, acquisition of undeveloped land or any construction that requires ground disturbance? ❑ No ❑ Yes Is there any presence of lead or lead hazards within the property? No F-1 Yes Fl Unknown Does the project involve existing units that are 50 years or older? F] No ❑ Yes *If, yes, does the property have historical significance? FI No F] Yes Fl Unknown 12 USE OF CONTRACTORS AND CONSULTANTS In accordance with federal regulations, CDBG /HOME funds may not be used to directly or indirectly employ, award contracts to, or otherwise engage the services or any contractor or subrecipient during any period of debarment, suspension, or placement of ineligibility status. Will you hire a contractor or consultant to complete this project? No 1-1 Yes, complete the following: Name of consultant /firm and owner: How were they selected? Is the consultant /firm already under contract with your organization? ❑ No ❑ Yes Is this consultant /firm a women or minority owned business? F1 No Fi Yes If you are unable to complete this section at the time of application, all contracts must be reviewed for debarment before a CDBG release of funds. Contact Anoka County with updated information. MARKET STUDY - HOME FUNDED PROJECTS ONLY ❑✓ N/A - Applying for CDBG Funding All awarded projects must provide Anoka County a Market Study done by a 3rd party - Will your organization have the ability to provide this? No ❑ Yes 13 CONFLICT OF INTEREST As an applicant requesting funding, will any of your employees, agents, consultants, officers, or elected officials meet any of the following conflicts of interest: ❑ Yes No Participate in the decision making process for the approval of this application? (i.e., an Anoka County Commissioner or HRA Trustee) ❑ Yes No Have a financial interest or reap a financial benefit from this program /activity? ❑ Yes No Han an interest in any contract, subcontract, or agreement with respect to this application either for themselves or those with whom they have family or business ties during the program year and for one year thereafter? *If you selected, "yes," to any of the above, clearly describe the conflict below: REQUIRED DOCUMENTATION The following documents are required to be attached with the application submission: ♦ Resolution of governing body requesting funds or board minutes approving submission of application ♦ Budget proposal - using the Excel document provided online ♦ If non -profit - State and Federal Tax Exemption Determination Letter - 501 (c)(3) ♦ List of Board of Directors /Council or Trustees for Nonprofit applications ♦ Project timeline or project schedule The following documents are ideas for supportive documentation, which could assist Anoka County Community Development in further understanding your project: ♦ Building /area information and photographs ♦ Appraisals ♦ Supporting documentation, such as, survey, phase 1 /II environmental, census data, etc. ♦ Phase level environmental report ♦ Map or sketch of project area ♦ Professional certification, analysis of feasibility and /or cost estimate A copy of the applicant's Audit, Management & Compliance Report and Certificate of Liability Insurance will be required before the Subrecipient Agreement can be completed, if your project is funded. 14 CERTIFICATION I hereby acknowledge that by applying for CDBG funds, this activity may require compliance in the following areas: ♦ Utilization of minority and women contractors ♦ Labor Standards Provisions (Davis -Bacon Act) ♦ Uniform Relocation Act and Section 104(d) ♦ Section 3 ♦ Environmental Regulations ♦ Flood Insurance ♦ Lead -Based Paint Assessment and /or Remediation or Abatement ♦ Debarred, suspended, and ineligible contractors and subrecipients ♦ Handicapped accessibility ♦ Title VI of the Civil Rights Act of 1964 ♦ Title VII of the Civil Rights Act of 1969 - Fair Housing Act DUNS M 04- 9614 -324 If not disclosed on this application, the DUNS number will be required upon the finalization of the subrecipient agreement if your program /activity is selected for funding. I certify that the information contained in this application is true and correct and that it contains no misrepresentations, falsifications, intentional omissions, or concealment of material facts and that the information given is true and complete to the best of my knowledge and belief. I further certify that no contracts have been awarded, funds committed, or construction begun on the proposed program, and that none will be prior to issuance of a Release of Funds by the Program Administrator. Signature of Authorized Official Name of Authorized Official Joseph S. Hogeboom Title Community Development Director Date January 11, 2015 15 CH COLUMBIA HEIGHTS AGENDA SECTION CONSENT ITEM NO. 7Q MEETING DATE JANUARY 11, 2016 CITY OF COLUMBIA HEIGHTS - COUNCIL LETTER ITEM: Resolution Authorizing the Execution of the Development Contract for Plat of Huset Park Senior Living DEPARTMENT: Community Development CITY MANAGE 'S PPROVAL: r BY /DATE: Joe Hogeboom, January 6, 2016 BY /DATE: /x BACKGROUND: In 2014, the City Council approved the Site Plan and the Preliminary Plat for the Huset Park Senior Living development project. The project consists of a 191 unit multi - family senior apartment building to be located at the northeast corner of the intersection of University and 37th Avenues. As a final component of this project, the Final Plat and a Development Contract must be approved. The Development Contract addresses physical development components of the project. The contract addresses construction of the project, as well as maintenance of certain site areas once the project is complete. The Contract has been reviewed by the City Attorney's office, as well as the Public Works Department. Once it is authorized to do so by the City Council, the Developer intends to begin construction on the site early this spring. RECOMMENDED MOTION(S): Motion: Move to waive the reading of Resolution No. 2015 -07, there being ample copies available to the public. Motion: Move to adopt Resolution 2016 -07, authorizing the execution of the Development Contract for Plat of Huset Park Senior Living, Anoka County MN, between the City of Columbia Heights and Columbia Heights Leased Housing Associates I, LLLP. ATTACHMENTS: Resolution 2016 -07 (1 page) Development Contract (25 pages) 215 Resolution Authorizing the Huset Park Senior Living Development Contract RESOLUTION NO. 2016 -07 A resolution of the City Council of Columbia Heights, Minnesota, Authorizing the Execution of the Development Contract for Plat of Huset Park Senior Living, Anoka County MN, Between the City of Columbia Heights and Columbia Heights Leased Housing Associates I, LLLP. WHEREAS, the approved a Site Plan and Preliminary Plat for the Huset Park Senior Living development project; and WHEREAS, the Huset Park Senior Living development project consists of a 191 unit, multi - family senior housing building to be located at the northeast corner of University Avenue and 37th Avenue; and WHEREAS, certain public improvements will be completed as a component of the project, including the installation of a publicly used sidewalk along 37th Avenue and a publicly used trail along University Avenue; and WHEREAS, certain infrastructure improvements associated with the project are necessary to be reviewed and monitored by the City. NOW, THEREFORE BE IT RESOLVED that the City Council authorizes the Mayor and the City Manager to execute the Development Contract for Plan of Huset Park Senior Living, Anoka County MN with Columbia Heights Leased Housing Associates I, LLLP on behalf of the City of Columbia Heights. ORDER OF THE CITY COUNCIL Passed this day of , 2016 Offered by: Seconded by: Roll Call: Gary L. Peterson, Mayor Attest: Katie Bruno, City Clerk Resolution 2016 -07 216 DEVELOPMENT CONTRACT FOR PLAT OF HUSET PARK SENIOR LIVING ANOKA COUNTY, MINNESOTA 217 INDEX TO CITY OF COLUMBIA HEIGHTS DEVELOPMENT CONTRACT FOR HUSET PARK SENIOR LIVING, ANOKA COUNTY, MINNESOTA RECITALS ARTICLE 1 — DEFINITIONS 1.1 Terms 1.2 City of Columbia Heights 1.3 Developer, Owner 1.4 Plat 1.5 Development Plans 1.6 Development Contract 1.7 Council 1.8 PWD 1.9 Director of PWD 1.10 County 1.11 Developer Improvements 1.12 Developer Public Improvements 1.13 Developer Default 1.14 Force Majeure 1.15 Developer Warranties A. Authority B. No Default 218 ARTICLE 3 — RESPONSIBILITY FOR COSTS 3.1 Developer Improvement Costs 3.2 Enforcement Costs 219 C. Present Compliance With Laws D. Continuing Compliance With Laws E. No Litigation F. Full Disclosure G. Two Year Warranty On Proper Work and Materials H. Obtaining Permits 1.16 City Warranties A. Authority 1.17 Formal Notice ARTICLE 2 — DEVELOPER IMPROVEMENTS 2.1 Developer Improvements 2.2 Boulevard and Area Restoration 2.3 Street Maintenance 2.4 Occupancy 2.5 Approval of Contractors and Engineer 2.6 Construction 2.7 Inspection 2.8 Faithful Performance of Construction Contracts 2.9 City Acceptance ARTICLE 3 — RESPONSIBILITY FOR COSTS 3.1 Developer Improvement Costs 3.2 Enforcement Costs 219 3.3 Time of Payment ARTICLE 4 — DEVELOPER WARRANTIES 4.1 Statement of Developer Warranties ARTICLE 5 — CITY WARRANTIES 5.1 Statement of City Warranties ARTICLE 6 — INDEMNIFICATION OF CITY 6.1 Indemnification of City ARTICLE 7 — CITY REMEDIES UPON DEVELOPER DEFAULT 7.1 City Remedies 7.2 No Additional Waiver Implied by One Waiver 7.3 No Remedy Exclusive 7.4 Emergency ARTICLE 8 - ESCROW DEPOSIT 8.1 Escrow Requirement 8.2 Escrow Release and Escrow Increase; Developer Improvements ARTICLE 9 — MISCELLANEOUS 9.1 City's Duties 9.2 No Third Party Recourse 9.3 Validity 9.4 Recording 220 9.5 Binding Agreement 9.6 Contract Assignment 9.7 Amendment and Waiver 9.8 Governing Law 9.9 Counterparts 9.10 Headings 9.11 Inconsistency 9.12 Access 9.13 Landscaping 9.14 Park Dedication 9.15 Record Drawings 9.16 Additional Agreements 9.17 Release of Development Contract EXHIBIT A — LIST OF DEVELOPMENT PLANS EXHIBIT B — DEVELOPER PUBLIC IMPROVEMENTS EXHIBIT C — ESCROW AND PARK DEDICATION CALCULATION 221 CITY OF COLUMBIA HEIGHTS DEVELOPMENT CONTRACT FOR HUSET PARK SENIOR LIVING THIS AGREEMENT, made and entered into on the day of , 2015, by and between the CITY OF COLUMBIA HEIGHTS, a municipality of the State of Minnesota, (hereinafter referred to as the CITY), and COLUMBIA HEIGHTS LEASED HOUSING ASSOCIATES I, LLLP, (hereinafter referred to as the OWNER and DEVELOPER) identified herein. WHEREAS, the DEVELOPER has applied to the CITY for approval of the preliminary and final PLAT; WHEREAS, the CITY has approved the final PLAT subject to the following conditions: 1. That the DEVELOPER enter into this DEVELOPMENT CONTRACT, which contract defines the work which the DEVELOPER undertakes to complete within the PLAT; AND 2. The DEVELOPER shall provide an irrevocable letter of credit, or cash deposit, in the amount and with conditions satisfactory to the CITY, providing for the actual construction and installation of such improvements within the period specified by the CITY. WHEREAS, the DEVELOPER has filed Three (3) complete sets of the DEVELOPMENT PLANS with the CITY; WHEREAS, the DEVELOPMENT PLANS have been prepared by a registered professional engineer and have been submitted to and approved by the DIRECTOR OF THE PWD. NOW, THEREFORE, subject to the terms and conditions of this DEVELOPMENT CONTRACT and in reliance upon the representations, warranties and covenants of the parties herein contained, the CITY, OWNER and DEVELOPER agree as follows: 222 ARTICLE L DEFINITIONS 1.1 TERMS. The following terms, unless elsewhere defined specifically in the DEVELOPMENT CONTRACT, shall have the following meanings as set forth below. 1.2 CITY. "CITY" means the City of Columbia Heights, a Minnesota municipal corporation. 1.3 DEVELOPER: OWNER. BUILDER. "DEVELOPER - OWNER" means Columbia Heights Leased Housing Associates I, LLLP, a Minnesota Limited Liability Limited Partnership. 1.4 PLAT. "PLAT" means the plat of HUSET PARK SENIOR LIVING, in the City of Columbia Heights, Anoka County, Minnesota. 1.5 DEVELOPMENT PLANS. "DEVELOPMENT PLANS" means all those plans, drawings, specifications and surveys identified and checked on the attached EXHIBIT `A,' and hereby incorporated by reference and made a part of this DEVELOPMENT CONTRACT. 1.6 DEVELOPMENT CONTRACT. "DEVELOPMENT CONTRACT" means this instant contract by and among the CITY, OWNER and DEVELOPER. 1.7 COUNCIL. "COUNCIL" means the Council of the City of Columbia Heights. 1.8 PWD. "PWD" means the Public Works Department of the City of Columbia Heights. 1.9 DIRECTOR OF PWD. "DIRECTOR OF PWD" means the Director of Public Works Department of the City of Columbia Heights and his delegates. 1.10 COUNTY. "COUNTY" means Anoka County, Minnesota. 1.11 DEVELOPER IMPROVEMENTS. "DEVELOPER IMPROVEMENTS" means and includes all the improvements identified on the attached EXHIBIT `B.' 1.12 DEVELOPER PUBLIC IMPROVEMENTS. "DEVELOPER PUBLIC IMPROVEMENTS" means and includes, jointly and severally, all the improvements identified and checked on the attached Exhibit B that are further labeled "public ". DEVELOPER PUBLIC IMPROVEMENTS are improvements to be constructed by the DEVELOPER within public right -of -way and which are to be approved and later accepted by the CITY. DEVELOPER PUBLIC IMPROVEMENTS are part of DEVELOPER IMPROVEMENTS. 223 1.13 DEVELOPER DEFAULT. "DEVELOPER DEFAULT" means and includes, jointly and severally, any of the following or any combination thereof: a) failure by the DEVELOPER to timely pay the CITY any money required to be paid under the DEVELOPMENT CONTRACT; b) failure by the DEVELOPER to timely construct the DEVELOPER PUBLIC IMPROVEMENTS according to the DEVELOPMENT PLANS and the CITY standards and specifications; C) failure by the DEVELOPER to observe or perform any covenant, condition, obligation or agreement on its part to be observed or performed under this DEVELOPMENT CONTRACT; d) breach of the DEVELOPER WARRANTIES. 1.14 FORCE MAJEURE. "FORCE MAJEURE" means acts of God, including, but not limited to floods, ice storms, blizzards, tornadoes, landslides, lightning and earthquakes (but not including reasonably anticipated weather conditions for the geographic area), riots, insurrections, war or civil disorder affecting the performance of work, blockades, power or other utility failures, and fires or explosions. 1.15 DEVELOPER WARRANTIES. "DEVELOPER WARRANTIES" means that the Developer hereby warrants and represents the following: A. AUTHORITY. Developer is organized and in good standing under the laws of the State of Minnesota. DEVELOPER has the right, power, legal capacity and authority to enter into and perform its obligations under this DEVELOPMENT CONTRACT, and no approvals or consents of any persons are necessary in connection with the authority of DEVELOPER to enter into and perform its obligations under this DEVELOPMENT CONTRACT. B. NO DEFAULT. DEVELOPER is not in default under any lease, contract or agreement to which it is a party or by which it is bound which would materially affect performance under this DEVELOPMENT CONTRACT. DEVELOPER is not a party to or bound by any mortgage, lien, lease, agreement, instrument, order, judgment or decree which would prohibit the execution or performance of this DEVELOPMENT CONTRACT by DEVELOPER or prohibit any of the transactions provided for in this DEVELOPMENT CONTRACT. C. PRESENT COMPLIANCE WITH LAWS. DEVELOPER has complied with and is not in violation of applicable federal, state or local 224 statutes, laws, and regulations (including, without limitation, permits and licenses and any applicable zoning, environmental or other law, ordinance or regulation) affecting the PLAT and the DEVELOPMENT PLANS and the DEVELOPER IMPROVEMENTS; and DEVELOPER is not aware of any pending or threatened claim of any such violation. D. CONTINUING COMPLIANCE WITH LAWS. DEVELOPER will comply with all applicable federal, state and local statutes, laws and regulations (including, without limitation, permits and licenses and any applicable zoning, environmental or other law, ordinance or regulation) affecting the PLAT and the DEVELOPMENT PLANS and the DEVELOPER IMPROVEMENTS. E. NO LITIGATION. To the best of DEVELOPER'S knowledge, there is no suit, action, arbitration or legal, administrative or other proceeding or governmental investigation pending, or threatened against or affecting DEVELOPER, except as disclosed in writing to the City, or the PLAT, or the DEVELOPMENT PLANS or the DEVELOPER IMPROVEMENTS. DEVELOPER is not in material default with respect to any order, writ, injunction or decree of any federal, state, local or foreign court, department, agency or instrumentality. F. FULL DISCLOSURE. None of the representatives and warranties made by DEVELOPER or made in any exhibit hereto or memorandum or writing furnished or to be furnished by DEVELOPER or on its behalf contains or will contain any untrue statement of material fact or omit any material fact the omission of which would be misleading. G. TWO YEAR WARRANTY ON PROPER WORK AND MATERIALS. The DEVELOPER warrants all work required to be performed by it under this DEVELOPMENT CONTRACT against poor material and faulty workmanship for a period of two (2) years after its completion and acceptance by the CITY. The DEVELOPER shall be solely responsible for all costs of performing repair work required by the CITY within thirty (30) days of the repair work being completed. H. OBTAINING PERMITS. The DEVELOPER shall obtain in a timely manner and pay for all required permits, licenses and approvals, and shall meet, in a timely manner, all requirements of all applicable, local, state and federal laws and regulations which must be obtained or met before the DEVELOPER IMPROVEMENTS may be lawfully constructed. 1.16 CITY WARRANTIES. "CITY WARRANTIES" means that the CITY hereby warrants and represents as follows: 225 A. AUTHORITY. CITY is a municipal corporation duly incorporated and validly existing in good standing the laws of the State of Minnesota. CITY has the right, power, legal capacity and authority to enter into and perform its obligations under this DEVELOPMENT CONTRACT. 1.17 FORMAL NOTICE. "FORMAL NOTICES" means notices given by one party to the other if in writing and if and when delivered or tendered either in person or by depositing it in the United States Mail and in a sealed envelope, by certified mail, return receipt requested, with postage and postal charges prepaid, addressed as follows: If to CITY: City of Columbia Heights Attention: City Manager 590 40th Avenue N.E. Columbia Heights, Minnesota 55413 If to DEVELOPER Columbia Heights Leased Housing Associates I, LLLP c/o Ronald Mehl, Senior Developer 2905 Northwest Blvd Suite 150 Plymouth, Minnesota 55441, and Winthrop and Winestine P.A. Attention: John D. Wolde 225 South Sixth Street Suite 3500 Minneapolis, MN 55402, and Alliant ALP 80, LLC c /o: Alliant Management Company, LLC 21600 Oxnard Street, 12th Floor Woodland Hills, CA 91367 Attn: Brian Goldberg, and Bocarsly Emden, Cowen Esmail and Arndt, LLP 633 West 5th Street, 6th Floor Los Angeles, CA Attn: Kyle Arndt, Esq. or to such other address as the party addressed shall have previously designated by notice given in accordance with this Section. Notices shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, or on the third day after mailing if ` IR mailed as provided above, provided, that a notice not given as above shall, if it is in writing, be deemed given if and when actually received by a party. ARTICLE 2 DEVELOPER IMPROVEMENTS 2.1 DEVELOPER IMPROVEMENTS. The DEVELOPER shall install, at its own cost, the DEVELOPER IMPROVEMENTS in accordance with the DEVELOPMENT PLANS. The DEVELOPER IMPROVEMENTS shall be completed by the dates shown on EXHIBIT `B,' except as completion dates are extended by subsequent resolution of the COUNCIL. Failure of the CITY to promptly take action to enforce this DEVELOPMENT CONTRACT after expiration of time in which the DEVELOPER IMPROVEMENTS are to be completed shall not waive or release any rights of the CITY; the CITY may take action at any time thereafter, and the terms of this contract shall be deemed to be automatically extended until such time as the DEVELOPER IMPROVEMENTS are completed to the CITY's reasonable satisfaction. 2.2 BOULEVARD AND AREA RESTORATION. The DEVELOPER shall lay cultured sod or hydro seed in all boulevards within 21 days of the completion of street related improvements and restore all other areas disturbed by the development grading operation in accordance with the approved erosion control plan, over the entire PLAT. 2.3 STREET MAINTENANCE. The DEVELOPER shall clear, on a daily basis, any soil, earth or debris from the streets and wetlands within or adjacent to this PLAT resulting from the grading or building on the land within the PLAT by the DEVELOPER or its agents, and shall restore to the CITY's specifications any gravel base contaminated by mixing construction or excavation debris, or earth in it, and repair to the CITY's specifications any damage to bituminous surfacing resulting from the use of construction equipment. 2.4 OCCUPANCY. Unless otherwise agreed to by the City, no certificate of occupancy and no occupancy of any building in the PLAT shall occur until the DEVELOPER IMPROVEMENTS have been installed. Unless otherwise agreed to by the City, this provision excludes Site Landscaping and Site Street Lighting. 2.5 APPROVAL OF CONTRACTORS AND ENGINEER. Any contractor or engineer preparing plans and specifications selected by the DEVELOPER to design, construct or install any DEVELOPER PUBLIC IMPROVEMENTS must be approved in writing by the DIRECTOR OF PWD, which approval shall not be unreasonably withheld; provided however that the CITY hereby specifically approves Loucks Engineers, BKV Group, Benson -Orth, Eagle Building Company, Stonebridge Construction, Stevens Construction Corp., Big -D Construction Corp. and Weis Builders for such purposes. 227 2.6 CONSTRUCTION. The construction, installation, materials and equipment related to DEVELOPER PUBLIC IMPROVEMENTS shall be in accordance with the DEVELOPMENT PLANS. The DEVELOPER shall cause the contractors to furnish the PWD with a written schedule of proposed operations, subcontractors and material suppliers, at least five (5) days prior to commencement of construction work. The DEVELOPER shall notify the CITY in writing, coordinate and hold a pre - construction conference with all affected parties at least three (3) days prior to starting construction of any DEVELOPER PUBLIC IMPROVEMENTS. 2.7 INSPECTION. The PWD or its designated representative shall periodically inspect the work installed by the DEVELOPER, its contractors, subcontractors or agents. The DEVELOPER shall notify the PWD two (2) working days prior to the commencement of the laying of utility lines, subgrade preparation, the laying of gravel base for street construction or any other improvement work which shall be subsequently buried or covered to allow the CITY an opportunity to inspect such improvement work. Upon receipt of said notice, the City shall have a reasonable time, not to be less than three (3) working days, to inspect the improvements. Failure to notify the CITY to allow it to inspect said work shall result in the CITY'S right pursuant to Article 8 to withhold the release of any portion of the escrow amount resulting from work being performed without the opportunity for adequate CITY inspection. 2.8 FAITHFUL PERFORMANCE OF CONSTRUCTION CONTRACTS. The DEVELOPER shall fully and faithfully comply with all terms of any and all contracts entered into by the DEVELOPER for the installation and construction of all of the DEVELOPER PUBLIC IMPROVEMENTS; and the DEVELOPER shall obtain lien waivers. Within thirty (30) days after FORMAL NOTICE, the DEVELOPER agrees to repair or replace, as directed by the CITY and at the DEVELOPER's sole cost and expense, any work or materials that within two (2) years after acceptance of the DEVELOPER PUBLIC IMPROVEMENTS by the CITY becomes defective in the commercially reasonable judgment of the City. 2.9 CITY ACCEPTANCE. The DEVELOPER shall give FORMAL NOTICE to the CITY within thirty (30) days once DEVELOPER PUBLIC IMPROVEMENTS have been completed in accordance with this DEVELOPMENT CONTRACT and the ordinances, CITY standards and specifications and the DEVELOPMENT PLANS. The CITY shall then inspect the DEVELOPER PUBLIC IMPROVEMENTS and notify the DEVELOPER of any DEVELOPER PUBLIC IMPROVEMENTS that do not so conform. Upon compliance with this DEVELOPMENT CONTRACT and CITY ordinances, standards and specifications, and the DEVELOPMENT PLANS, the DEVELOPER PUBLIC IMPROVEMENTS shall become the property of the CITY upon FORMAL NOTICE of acceptance by the CITY. After acceptance, the DEVELOPER PUBLIC IMPROVEMENTS become the property of the CITY. If the DEVELOPER PUBLIC IMPROVEMENTS do not conform, 228 FORMAL NOTICE shall be given to the DEVELOPER of the need for repair or replacement. ARTICLE 3 RESPONSIBILITY FOR COSTS 3.1 DEVELOPER IMPROVEMENT COSTS. The DEVELOPER shall pay for the DEVELOPER IMPROVEMENTS; that is, all costs of persons doing work or furnishing skills, tools, machinery or materials, or insurance premiums or equipment or supplies and all just claims for the same; and the CITY shall be under no obligation to pay the contractor or any subcontractor any sum whatsoever on account thereof, whether or not the CITY shall have approved the contract or subcontract. 3.2 ENFORCEMENT COSTS. The DEVELOPER shall pay the CITY for costs incurred in the enforcement of this DEVELOPMENT CONTRACT, including engineering and attorneys' fees. 3.3 TIME OF PAYMENT. The DEVELOPER shall pay all bills from the CITY within thirty (30) days after billing. Bills not paid within thirty (30) days shall accrue interest at the rate of 6% per year. ARTICLE 4 DEVELOPER WARRANTIES 4.1 STATEMENT OF DEVELOPER WARRANTIES. The Developer hereby makes and states the DEVELOPER WARRANTIES. ARTICLE 5 CITY WARRANTIES 5.1 STATEMENT OF CITY WARRANTIES. The City hereby makes and states the CITY WARRANTIES. ARTICLE 6 INDEMNIFICATION 6.1 INDEMNIFICATION OF THE CITY. Except for any damages or claims that arise solely from the willful misconduct or gross negligence of the CITY, the DEVELOPER shall indemnify, defend and hold the CITY its COUNCIL, agents, employees, attorneys and representatives harmless against and in respect of any and all claims, demands, actions, suits, proceedings, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including 229 interest, penalties and attorneys' fees, that the CITY incurs or suffers, which arise out of, results from or relates to: a) breach by the DEVELOPER of the DEVELOPER WARRANTIES; b) failure of the DEVELOPER to timely construct the DEVELOPER PUBLIC IMPROVEMENTS according to the DEVELOPMENT PLANS and the CITY ordinances, standards and specifications; C) failure by the DEVELOPER to observe or perform any covenant, conditions, obligation or agreement on its part to be observed or performed under this DEVELOPMENT CONTRACT; d) failure by the DEVELOPER to pay contractors, subcontractors, laborers, or materialmen; e) failure by the DEVELOPER to pay for materials; f) failure to obtain the necessary permits and authorizations to construct the DEVELOPER PUBLIC IMPROVEMENTS; g) construction of the DEVELOPMENT PUBLIC IMPROVEMENTS. ARTICLE 7 CITY REMEDIES UPON DEVELOPER DEFAULT 7.1 CITY REMEDIES. If a DEVELOPER DEFAULT occurs, that is not caused by FORCE MAJEURE, the CITY shall give the DEVELOPER FORMAL NOTICE of the DEVELOPER DEFAULT, specifying the nature of the asserted default, and the DEVELOPER shall have to cure the DEVELOPER DEFAULT within a thirty (30) days cure period, hereinafter defined as "CURE PERIOD ". Said CURE PERIOD may be extended by the CITY for a reasonable period of time to be determined by the DIRECTOR OF PWD, at his sole discretion, provided that the DEVELOPER submits, to the CITY using the FORMAL NOTICE procedures of Section 1.17 within the CURE PERIOD, a reasonable plan or contract bid that demonstrates that it is impractical to cure the DEVELOPER DEFAULT within the CURE PERIOD. If the DEVELOPER, after FORMAL NOTICE to it by the CITY, does not cure the DEVELOPER DEFAULT within the CURE PERIOD or DIRECTOR OF PWD approved extension thereof, then the CITY may avail itself of any remedy afforded by law and any of the following remedies. a) the CITY may specifically enforce this DEVELOPMENT CONTRACT; b) the CITY may suspend any work improvement or obligation to be performed by the CITY; 230 C) the CITY may collect on the irrevocable letter of credit or cash deposit; d) the CITY may deny building and occupancy permits for buildings within the PLAT; e) the CITY may, at its sole option, perform the work or improvements to be performed by the DEVELOPER, in which case the DEVELOPER shall within thirty (30) days after written billing by the CITY reimburse the CITY for any costs and expenses incurred by the CITY. In the alternative, the CITY may in whole or in part, specially assess any of the costs and expenses incurred by the CITY; and the DEVELOPER and OWNER hereby waive any and all procedural and substantive objections to the installation and construction of the work and improvements and the special assessment resulting therefrom, including but not limited to notice and hearing requirement and any claim that the special assessments exceed benefit to the PLAT. The DEVELOPER and OWNER hereby waive any appeal rights up to the amount indicated on EXHIBIT `C' pursuant to Minn. Stat. 429.081. Upon an event of default, the limited partners of the OWNER shall have the right to cure any such default and the CITY shall accept such default as if cured by the OWNER itself. 7.2 NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER. In the event any agreement contained in this DEVELOPMENT CONTRACT is breached by the DEVELOPER and thereafter waived in writing by the CITY, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other concurrent, previous or subsequent breach hereunder. All waivers by the CITY must be in writing. 7.3 NO REMEDY EXCLUSIVE. No remedy herein conferred upon or reserved to the CITY shall be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under the DEVELOPMENT CONTRACT or now or hereafter existing at law or in equity or by statute; provided however that the CITY shall not have the power to exercise both the remedy provided by Section 7.1(c) and, concurrently or sequentially, the remedy provided by Section 7.1(e), to the extent that the remedy in Section 7.1(c) provides reimbursement to the City for any costs and expenses incurred by the City. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle 231 the CITY to exercise any remedy reserved to it, it shall not be necessary to give notice, other than the FORMAL NOTICE. 7.4 EMERGENCY. Notwithstanding the requirement relating to FORMAL NOTICE to the DEVELOPER in case of a DEVELOPER DEFAULT and notwithstanding the requirement relating to giving the DEVELOPER a thirty (30) day period to cure the DEVELOPER DEFAULT, in the event of an emergency as determined by the Director of PWD, resulting from the DEVELOPER DEFAULT, the CITY may perform the work or improvement to be performed by the DEVELOPER without giving any notice or FORMAL NOTICE to the DEVELOPER and without giving the DEVELOPER a forty -eight (48) hour period to cure the DEVELOPER DEFAULT. In such case, the DEVELOPER shall within thirty (30) days after written billing by the CITY reimburse the CITY for any and all costs incurred by the CITY. In the alternative, the CITY may, in whole or in part, specially assess the costs and expenses incurred by the CITY; and the DEVELOPER and OWNER hereby waive any and all procedural and substantive objections to the installation and construction of the work and improvements and the special assessments resulting there from, including but not limited to notice and hearing requirements and any claim that the special assessments exceed benefit to the PLAT. The DEVELOPER and OWNER hereby waive any appeal rights up to the amount indicated on EXHIBIT `C' pursuant to Minn. Stat. 429.081. ARTICLE 8 ESCROW DEPOSIT 8.1 ESCROW REQUIREMENT. Contemporaneously herewith, the DEVELOPER shall deposit with the CITY an irrevocable letter of credit, or cash deposit for the amounts set forth on EXHIBIT `C.' All cost estimates shall be acceptable to the DIRECTOR OF PWD. The total escrow amount was calculated as shown on the attached Exhibit C. The bank and form of the irrevocable letter of credit, or cash deposit shall be subject to approval by the City Finance Director and City Attorney and shall continue to be in full force and effect until released by the CITY pursuant to Section 8.2 below. The irrevocable letter of credit shall be for a term ending December 31, 2017. In the alternative, the letter of credit may be for a one year term provided it is automatically renewable for successive one year periods from the present or any future expiration dates with a final expiration date of December 31, 2017, and further provided that the irrevocable letter of credit states that at least sixty (60) days prior to the expiration date the bank will notify the City if the bank elects not to renew for an additional period. The irrevocable letter of credit shall secure compliance by the DEVELOPER with the terms of this DEVELOPMENT CONTRACT. The CITY may draw down on the irrevocable letter of credit or 232 cash deposit, without any further notice than that provided in Section 7.1 relating to a DEVELOPER DEFAULT, for any of the following reasons: a) a DEVELOPER DEFAULT; or b) upon the CITY receiving notice that the irrevocable letter of credit will be allowed to lapse before December 31, 2017. With CITY approval, the irrevocable letter of credit or cash deposit may be reduced pursuant to Section 8.2 from time to time as financial obligations are paid. 8.2 ESCROW RELEASE AND ESCROW INCREASE, DEVELOPER IMPROVEMENTS. Periodically, upon the DEVELOPER's written request and upon completion by the DEVELOPER and acceptance by the CITY of any specific DEVELOPER PUBLIC IMPROVEMENTS, ninety percent (90 %) of that portion of the irrevocable letter of credit, or cash deposit covering those specific completed improvements only shall be released. The final ten percent (10 %) of that portion of the irrevocable letter of credit, or cash deposit, for landscaping improvements shall be held until acceptance by the CITY and expiration of the warranty period under Section 1.15 hereof; in the alternative, the DEVELOPER may post a bond satisfactory to the CITY with respect to the final ten percent (10 %). If it is determined by the CITY that the DEVELOPMENT PLANS were not strictly adhered to, or that work was done without CITY inspection, the CITY may require, as a condition of acceptance, that the DEVELOPER post an irrevocable letter of credit, or cash deposit equal to 125% of the estimated amount necessary to correct the deficiency or to protect against deficiencies arising there from. Said additional irrevocable letter of credit, or cash deposit, shall remain in force for such time as the CITY deems reasonably necessary, not to exceed two (2) years. In the event that work, which is concealed, was done without permitting CITY inspection, then the CITY may, in the alternative, require the concealed condition to be exposed for inspection purposes. ARTICLE 9 MISCELLANEOUS 9.1 CITY'S DUTIES. The terms of this DEVELOPMENT CONTRACT shall not be considered an affirmative duty upon the CITY to complete any DEVELOPMENT IMPROVEMENTS. 9.2 NO THIRD PARTY RECOURSE. Third parties shall have no recourse against the CITY under this DEVELOPMENT CONTRACT. 233 9.3 VALIDITY. If any portion, section, subsection, sentence, clause, paragraph or phrase of this DEVELOPMENT CONTRACT is for any reason held to be invalid, such decision shall not affect the validity of the remaining portion of this DEVELOPMENT CONTRACT. 9.4 RECORDING. The PLAT shall be recorded with the COUNTY Recorder and the DEVELOPER shall provide and execute any and all documents necessary to implement the recording. 9.5 BINDING AGREEMENT. The parties mutually recognize and agree that all terms and conditions of this recordable DEVELOPMENT CONTRACT shall run with the PLAT and shall be binding upon the heirs, successors, administrators and assigns of the DEVELOPER. 9.6 CONTRACT ASSIGNMENT. The DEVELOPER may not assign this DEVELOPMENT CONTRACT without the written permission of the CITY. 9.7 AMENDMENT AND WAIVER. The parties hereto may by mutual written agreement amend this DEVELOPMENT CONTRACT in any respect. Any party hereto may extend the time for the performance of any of the obligations of another, waive any inaccuracies in representations by another contained in this DEVELOPMENT CONTRACT or in any document delivered pursuant hereto which inaccuracies would otherwise constitute a breach of this DEVELOPMENT CONTRACT, waive compliance by another with any of the covenants contained in this DEVELOPMENT CONTRACT and performance of any obligations by the other or waive the fulfillment of any condition that is precedent to the performance by the party so waiving of any of its obligations under this DEVELOPMENT CONTRACT. Any agreement on the part of any party for any such amendment, extension or waiver must be in writing. No waiver of any of the provisions of this DEVELOPMENT CONTRACT shall be deemed, or shall constitute, a waiver of any other provisions, whether or not similar, nor shall any waiver constitute a continuing waiver. 9.8 GOVERNING LAW. This DEVELOPMENT CONTRACT shall be governed by and construed in accordance with the laws of the State of Minnesota. 9.9 COUNTERPARTS. This DEVELOPMENT CONTRACT may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. 9.10 HEADINGS. The subject headings of the paragraphs and subparagraphs of this DEVELOPMENT CONTRACT are included for purposes of convenience only, and shall not affect the construction of interpretation of any of its provisions. 9.11 INCONSISTENCY. If the DEVELOPMENT PLANS are inconsistent with the words of this DEVELOPMENT CONTRACT or if the obligations imposed 234 hereunder upon the DEVELOPER are inconsistent, then that provision or term which imposes a greater and more demanding obligation on the DEVELOPER shall prevail. 9.12 ACCESS. The DEVELOPER hereby grants to the CITY, its agents, employees, officers, and contractors a license to enter the PLAT to perform all inspections deemed appropriate by the CITY during the installation of DEVELOPER IMPROVEMENTS by the DEVELOPER. 9.13 LANDSCAPING. Installation and Maintenance. The following regulations shall govern the installation and maintenance of landscaping and screening materials. a) All landscaping materials and screening materials shall be installed in conjunction with site development and prior to issuance of a final certificate of occupancy and building. b) A letter of credit or other security as acceptable to the CITY shall be deposited with the DIRECTOR OF PUBLIC WORKS, in an amount equal to ten percent (10 %) of the estimated cost of landscaping, fencing and /or screening. The letter of credit, or portions thereof, shall be forfeited to maintain and /or replace materials for a period of time to include at least two (2) growing seasons, as defined by MnDOT specifications. A portion of the letter of credit may be released after one growing season as determined by the DIRECTOR OF PUBLIC WORKS. C) A decorative, permanent fence shall be installed at the west property line boundary with the University Avenue ROW, consisting of masonry columns and iron fencing with a design approved by the CITY, and as depicted on EXHIBIT `D,' attached herein. The OWNER shall be responsible for the on -going maintenance of the fencing. Any landscaping west of the fence shall require a MnDOT permit and Maintenance Agreement, with copies provided to the CITY. Where new fencing is installed along the MnDOT ROW, the DEVELOPER shall be responsible for the removal of any existing chain link or other fencing to the extent such removal may be permitted by MnDOT. d) The OWNER shall be responsible for continued maintenance of fencing, landscaping and screening materials to remain in compliance with the requirements of this Section. e) All DEVELOPMENT turf irrigation systems shall include rain detecting shutoff devices to control irrigation function during wet weather. 9.14 PARK DEDICATION. Subject to reduction for all applicable existing credits in favor of the DEVELOPER, the CITY hereby determines Park Dedication Fees in the amount of $1,500.00 per unit, and that such fees are paid at Final PLAT Approval by the CITY, or prior to issuance of any and all permits. The calculation shall be as provided in EXHIBIT `C.' 235 9.15 RECORD DRAWINGS. The OWNER shall provide to the CITY, upon completion of the DEVELOPER IMPROVEMENTS, a complete set of Record Drawings documenting the constructed or "as- built" condition of the DEVELOPER IMPROVEMENTS. The Record Drawings shall be submitted in electronic and hard copy form consistent with CITY requirements, and provided to the PWD within six (6) months of the completion of the DEVELOPER IMPROVEMENTS. Additionally, the OWNER shall include in the Record Drawings GPS Data of all sanitary sewer and water main service locations at the service extensions or property lines. The GPS Data shall include X, Y & Z coordinate data consistent with City requirements. 9.16 ADDITIONAL AGREEMENTS. A. The OWNER and the CITY hereby agree that the maintenance costs of the large storm water pond located at the northwest corner of 37u' Street and Huset Parkway shall be shared by the DEVELOPMENT and CITY on an 67% (DEVELOPMENT) — 33% (CITY) split. Necessary storm water maintenance activities shall be conducted or cause to be conducted by the CITY, with said costs billed to the DEVELOPMENT by the CITY, payable within 30 days. In order to enforce the provisions of this Section 9.16(C), the governing documents of all homeowners' associations (collectively, the "HOA ") shall be subject to the reasonable review and approval of the City Attorney to assure that the HOA's documents include a requirement for said necessary storm water pond maintenance and reimbursement to the City for two thirds (67 %) of said cost. B. The OWNER hereby agrees to place a 10 foot wide paved trail along the University Avenue ROW. The CITY agrees to assist in MnDOT permitting prior to the installation of the trail. The design and construction of the trail shall be the responsibility of the OWNER, meeting CITY trail requirements. C. The OWNER hereby agrees to place a 6 foot wide sidewalk along the 37th Avenue NE ROW. The design and construction of the sidewalk shall be the responsibility of the OWNER, meeting CITY sidewalk requirements. D. The OWNER hereby agrees to construct a monument sign which will incorporate the City logo. The design and construction of the sign shall be the responsibility of the OWNER, subject to final approval by the CITY. E. The DEVELOPER shall dedicate public easements over the public sidewalk adjacent to 37t' Avenue NE, as well as the onsite stormwater management features, including the Stormwater Pond and water hydrants. F. The OWNER and the CITY hereby agree to the Inspections and Maintenance Activities for the Filtration System contained in Civil Sheet 3 -4. 236 9.17 RELEASE OF DEVELOPMENT CONTRACT. Upon completion of all DEVELOPER IMPROVEMENTS and all DEVELOPER PUBLIC IMPROVEMENTS, and upon the expiration of the Section 1.15G. TWO YEAR WARRANTY ON PROPER WORK AND MATERIALS, the DEVELOPER may submit to the CITY a draft release of this DEVELOPMENT CONTRACT for review and approval by the CITY's attorney. 237 IN WITNESS WHEREOF, the parties have executed this DEVELOPMENT CONTRACT. CITY OF COLUMBIA HEIGHTS By: By: Gary Peterson, Mayor Walt Fehst, City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF ANOKA DEVELOPER: COLUMBIA HEIGHTS LEASED HOUSING ASSOCIATES I, LLLP Mark S. Moorhouse Its Senior Vice President On this day of , 2015, before me a Notary Public within and for said County, personally appeared to me Gary Peterson and Walt Fehst, personally known, who being each by me duly sworn, each did say that they are respectively the Mayor and City Manager of the City of Columbia Heights, the municipality named in the foregoing instrument, and that the seal affixed to said instrument was signed and sealed in behalf of said municipality by authority of its City Council and said Mayor and City Manager acknowledged said instrument to be the free act and deed of said municipality. Notary Public STATE OF MINNESOTA ) ss. COUNTY OF ANOKA ) On this day of , 2015, before me a Notary Public within and for said County, personally appeared , to me personally known, who being by me duly sworn, said that he is the Senior Vice President of Columbia Heights Leased Housing Associates I, LLC, the general partner of Columbia Heights Leased Houseing Associates I, LLLP, on behalf of said partnership. Notary Public 238 THIS INSTRUMENT DRAFTED BY: Kevin Hansen, P.E. Public Works Director /City Engineer City of Columbia Heights 637 38th Avenue N.E. Columbia Heights, MN 55421 763/706 -3705 James Hoeft City Attorney Bama, Guzy, and Steffen, ltd 200 Coon Rapids Boulevard Suite 400 Coon Rapids, MN 763/783 -5122 239 EXHIBIT A LIST OF DEVELOPMENT PLANS DOMINIUM SENIOR HOUSING PLAN DESCRIPTION DESIGN PLAN DATE 1. Development Plat Loucks 2 3. 4. 5. 6. WA Erosion Control and Grading Plan Loucks Street /Trail Plan (Private) Loucks Utility /Site Plan (Public /Private) Loucks Landscape Plan BKV Group Street Light Plan (private) BK`' Group Building Plan BKV Group 240 EXHIBIT B DEVELOPER PUBLIC IMPROVEMENTS The items indicated with "PUBLIC" below are those DEVELOPER IMPROVEMENTS that are DEVELOPER - PUBLIC IMPROVEMENTS. COMPLETION DATE 6/31/17 6/31/17 6/31/17 12/31/17 12/31/17 12/31/17 12/31/17 12/31/17 IMPROVEMENT Grading /Removals /Erosion Control Plan Utilities (Sanitary Sewer and Water Mains) Utilities (Storm Sewer) Streets /Trail (Plat - Private) Trails (Plat - Public) Sidewalks (Plat — Public) Landscaping Street Lighting Note: Pursuant to Section 2.4, all Developer Improvements must be completed prior to the final occupancy of the building on Huset Park Senior Living. Unless otherwise agreed to by the City, this provision shall exclude Site Landscaping and Site Street Lighting. -2- 241 EXHIBIT C ESCROW AND PARK DEDICATION CALCULATIONS) Park Dedication Fee $1,500 /unit x 191 units = $286,500 Land Credit from Phase I - 67,058 _ $219,442 DEVELOPER IMPROVEMENTS 1. Erosion Control/Restoration 2. Site Utilities 3. Public Street Connections (1) 4. Landscaping (incl. Retaining Walls) 5. University Avenue Fence 6. Trail / Sidewalk 7. Monument Sign MULTIPLIED BY: 1.25 EQUALS: $ 45,000 $ 225,000 $ NA — existing curb cut $ 195,000 $ 97,500 $ 35,000 $ 20,000 $ 617,500 $ 771,875 In addition to the deposit or letter of credit required above, the DEVELOPER shall also deposit $10,000 in cash with the CITY contemporaneously with execution of this DEVELOPMENT CONTRACT. This $10,000 shall be to pay the CITY for engineering review and site inspection fees at the CITY's standard rates charged for such tasks. Upon acceptance of the DEVELOPER PUBLIC IMPROVEMENTS, the CITY shall return to the DEVELOPER any remaining portion of the $10,000 not otherwise charged against the DEVELOPER for engineering review and inspection performed by the CITY. To the extent the engineering review and inspection fees, calculated according to the CITY's standard rates, exceed the $10,000 deposit, the DEVELOPER is responsible for payment of such excess within thirty (30) days after billing by the CITY. 242 CH COLUMBIA HEIGHTS AGENDA SECTION CONSENT AGENDA ITEM NO. 711 MEETING DATE JANUARY 11, 2016 CITY OF COLUMBIA HEIGHTS - COUNCIL LETTER ITEM: Resolution approving the Final Plat for Huset Park Senior Living DEPARTMENT: Community Development CITY MANAGER'S PROVAL: BY /DATE: Elizabeth Holmbeck, January 6, 2016 BY /DATE: BACKGROUND: On behalf of Dominium, Columbia Heights Leased Housing Associates has requested Final Plat Approval per Code Section 9.104 (M), for the vacant site located northeast of the 37th Avenue NE. and University Avenue NE. intersection. The site is currently comprised of three lots of record: 317 37th Avenue NE., 3700 5th St. NE., and 450 38th Avenue NE. The applicant is removing the existing lot lines, and re- platting the property to allow for a senior housing apartment building to be constructed on the site. At the October 12th, 2015 City Council meeting, the Site Plan and Preliminary Plat were approved by the City Council. Once the Final Plat is approved, the applicant will begin preliminary site work. State Building Code prevents constructing a new building over a property line. Furthermore, in order to obtain a Certificate of Occupancy for the property, the lot lines must be removed. The development site is located in the Mixed Use Zoning District. Properties to the north and east are also zoned in the Mixed Use Zoning District. The properties to the east and west are zoned in the Light Industrial Zoning District, and the properties to the south are located in the City of Minneapolis. The Comprehensive Plan guides this area for Mixed -Use, Transit Oriented Development. The City's Mixed -Use Districts allow for residential, commercial, and institutional uses. The City's Comprehensive Plan aims to enhance the transit connections along University Avenue and to provide additional housing for the projected aging population. Constructing a senior housing apartment building is consistent with the City's Comprehensive Plan. The vacant site will be redeveloped to include a four story senior housing building and site improvements on the parcel which will enhance the pedestrian and transit connections to the surrounding area. RECOMMENDATION: The applicant came before the Planning and Zoning Commission on October 6th, 2015. The Planning and Zoning Commission recommended unanimously to the City Council to approve the Preliminary and Final Plat for Huset Park Senior Living. The applicant came before the City Council on October 12th, 2015 for preliminary plat approval. The City Council voted unanimously to approve the Preliminary Plat for Huset Park Senior Living. RECOMMENDED MOTION(S): Motion: Move to waive the reading of Resolution No. 2016 -04, there being ample copies available to the public. Motion: Move to adopt Resolution No. 2016 -04, being a resolution approving the Final Plat for Huset Park Senior Living, subject to the following conditions: 243 Huset Park Senior Living City of Columbia Heights - Council Letter Page 2 1. All required state and local codes, permits, licenses and inspections will be met and in full compliance. 2. The applicant shall be responsible for the cost of filing and recording written easements with the Anoka County Recorder's Office. 3. Upon approval of the Final Plat, the applicant shall be responsible for filing and recording the Final Plat with the Anoka County Recorder's Office within one year of the date of City Council action. In the event that a Final Plat is not recorded within this time period, the Final Plat will become void. ATTACHMENTS. Resolution No. 2016 -04 Planning Report Application Location Map Final Plat 244 RESOLUTION NO. 2016 -04 A resolution approving the Final Plat for Huset Park Senior Living. Whereas, a proposal has been submitted by Columbia Heights Leased Housing Associates I, LLLP on behalf of Dominium to the City Council requesting Final Plat Approval from the City of Columbia Heights at the following site: ADDRESS: 317 37th Avenue NE., 3700 5th St. NE., and 450 38th Avenue NE. LEGAL DESCRIPTION: On file at City Hall. THE APPLICANT SEEKS THE FOLLOWING: Final Plat Approval per Code Section 9.104 (M). Whereas, the Planning and Zoning Commission held a public hearing on October 6th, 2015 and recommended unanimously to approve the Preliminary and Final Plat; Whereas, the City Council held a public hearing on October 12th, 2015 and voted unanimously to approve the Preliminary Plat; Whereas, the City Council has considered the advice and recommendations of the Planning and Zoning Commission regarding the effect of the proposed Plat upon the health, safety, and welfare of the community and its Comprehensive Plan, as well as any concerns related to compatibility of uses, traffic, property values, light, air, danger of fire, and risk to public safety in the surrounding areas; Now, therefore, in accordance with the foregoing, and all ordinances and regulations of the City of Columbia Heights, the City Council of the City of Columbia Heights makes the following: FINDINGS OF FACT Section 9.104 (M) (6) of the Zoning Ordinance outlines two conditions that must be met in order for the City to approve a Final Plat. They are as follows: (a) The Final Plat substantially conforms to the approved Preliminary Plat. (b) The Final Plat conforms to the requirements of City Code Section 9.115. Further, be it resolved, that the attached plans, maps, and other information shall become part of this Final Plat Approval; and in granting approval the City and the applicant agree that the Plat shall become null and void if the project has not been completed within one (1) calendar year after the approval date, subject to petition for renewal. CONDITIONS 1. All required state and local codes, permits, licenses and inspections will be met and in full compliance. 2. The applicant shall be responsible for the cost of filing and recording written easements with the Anoka County Recorder's Office. 3. Upon approval of a Final Plat, the applicant shall be responsible for filing and recording the Final Plat 245 City of Columbia Heights - Council Resolution Page 2 with the Anoka County Recorder's Office within one year of the date of City Council action. In the event that a Final Plat is not recorded within this time period, the Final Plat will become void. Passed this 11th day of January, 2016. Offered by: Seconded by: Roll Call: Attest: Katie Bruno, City Clerk /Council Secretary ORDER OF COUNCIL Gary L. Peterson, Mayor 246 CH COLUMBIA HEIGHTS CITY OF COLUMBIA HEIGHTS PLANNING AND ZONING COMMISSION PLANNING REPORT CASE NUMBER: 2015 -1004 DATE: September 28, 2015 TO: Columbia Heights Planning and Zoning Commission APPLICANT: Dominium /Columbia Heights Leased Housing Associates I, LLLP DEVELOPMENT: Huset Park Senior Living LOCATION: 317 37th Avenue NE., 3700 5th St. NE., and 450 38th Avenue NE. REQUEST: Preliminary /Final Plat Approval PREPARED BY: Elizabeth Holmbeck, Associate City Planner INTRODUCTION On behalf of Dominium, Columbia Heights Leased Housing Associates has requested Preliminary and Final Plat Approval per Code Section 9.104 (L) and (M), for the vacant site located northeast of the 37th Avenue NE. and University Avenue NE. intersection. The site is currently comprised of three lots of record: 317 37th Avenue NE., 3700 5th St. NE., and 450 38th Avenue NE. The applicant is proposing to remove the existing lot lines, and re -plat the property to allow for a senior housing apartment building to be constructed on the site. State Building Code prevents constructing a new building over a property line. Furthermore, in order to obtain a Certificate of Occupancy for the property, the lot lines must be removed. ZONING ORDINANCE The site is currently comprised of three properties. The three properties are located in the Mixed Use Zoning District. The properties to the north and east are also located in the Mixed Use Zoning District. The properties to the east and west are located in the Light Industrial Zoning District, and the properties to the south are located in the City of Minneapolis. COMPREHENSIVE PLAN The Comprehensive Plan guides this area for Mixed -Use, Transit Oriented Development. The City's Mixed -Use Districts allow for residential, commercial, and institutional uses. The City's Comprehensive Plan aims to enhance the transit connections along University Avenue and to provide additional housing for the projected aging population. Constructing a senior housing apartment building is consistent with the City's Comprehensive Plan. The vacant site will be 317 37th Avenue NE., 3700 5th St. NE., and 450 38th Avenue NE. 247 City of Columbia Heights Planning and Zoning Commission October 6, 2015 Planning Report Page 2 redeveloped to include a four story senior housing building and site improvements on the parcel which will enhance the pedestrian and transit connections to the surrounding area. DESIGN GUIDELINES The subject property is not located in the Design Guideline Overlay District and as such, is not governed by the Design Guideline standards. FINDINGS OF FACT Section 9.104 (L) (6) of the Zoning Ordinance outlines three conditions that must be met in order for the City to grant a Preliminary Plat. They are as follows: (a) The proposed Preliminary Plat conforms to the requirements of City Code Section 9.115. This is correct. (b) The proposed subdivision is consistent with the Comprehensive Plan. This is correct. (c) The proposed subdivision contains parcel and land subdivision layout that is consistent with good planning and site engineering design principles. This is correct. Section 9.104 (M) (6) of the Zoning Ordinance outlines two conditions that must be met in order for the City to grant Final Plat approval. They are as follows: (a) The Final Plat substantially conforms to the corresponding Preliminary Plat. This is correct. (b) The Final Plat conforms to the requirements of City Code Section 9.115. This is correct. RECOMMENDATION Staff recommends that the Planning and Zoning Commission approve the proposed Preliminary and Final Plat request made by Dominium on behalf of Columbia Heights Leased Housing Associates for the properties located at 317 37th Avenue NE., 3700 5th St. NE., and 450 38th Avenue NE. 248 City of Columbia Heights Planning and Zoning Commission October 6, 2015 Planning Report Page 3 Motion: Move to waive the reading of Resolution No. 2015 -65, there being ample copies available to the public. Motion: That the Planning and Zoning Commission recommends that the City Council approve the Preliminary and Final Subdivision Plat for the properties located at 317 37th Avenue NE., 3700 5th St. NE., and 450 38th Avenue NE. subject to certain conditions of approval that have been found to be necessary to protect the public interest and ensure compliance with the provisions of the Zoning and Development Ordinance, including: 1. All required state and local codes, permits, licenses and inspections will be met and in full compliance. 2. The applicant shall be responsible for the cost of filing and recording written easements with the Anoka County Recorder's Office. 3. An approved Preliminary Plat shall be valid for a period of one year from the date of the City Council approval. In the event that a Final Plat is not submitted within this time period, the Preliminary Plat will become void. 4. Upon approval of a Final Plat, the applicant shall be responsible for filing and recording the Final Plat with the Anoka County Recorder's Office within one year of the date of City Council action. In the event that a Final Plat is not recorded within this time period, the Final Plat will become void. ATTACHMENTS Resolution No. 2015 -65 Application Location Map Preliminary /Final Plat 249 CITY OF COLUMBIA HEIGHTS PRELIMINARY J FINAL SUBDIVISION PLAT APPLICATION To be filled out by City: CASE NO.: DATE RECEIVED: APPLIC. ORD.: 9 104(x) 9104(L), 9.114(A) - 9.114(D) DATE LETTER OF COMPLETION: PRESENT ZONING' APPROVAL DATE PER STATUTE: PRESENT LAND USE PLAN DESIGNATION: REVIEW PERIOD EXTENDED: PRELIMINARY PLAT FINAL PLAT To be filled out by Applicant: PROPOSED NAME OF PLAT PROJECT ADDRESS /LOCATION Columbia Heights Leased Housing Associates I, LLLP Plat -3700 5th Street NE, Columbia Heights, MN 55421 (final address to be determined) LEGAL DESCRIPTION OF PROPERTY INVOLVED (attach separate page if necessary): attached as a separate page PRESENT USE OF PROPERTY: Vacant Land Site PROPOSED USE OF PROPERTY: High- Density Multifamily Housing REASON FOR REQUEST (please attach a written narrative describing your request and justification for approval. The narrative must fully describe the proposal to insure its compatibility with surrounding uses and its consistency with Zoning requirements and the Comprehensive Plan.) Columbia Heights Leased Housing Associates 1, LLLP APPLICANT PHONE 763.354.5656 FAX E -MAIL rmeN @dominiuminc.com PAGER CELL # ADDRESS 2905 Northwest Blvd., Ste. 150 CITY Plymouth STATE MN ZIP 55441 FEE OWNER OF PROPERTY Columbia Heights Leased Housing Associates I, LLLP ADDRESS 2905 Northwest Blvd., Ste. 150 CITY Plymouth PHONE FAX KAKI STATE Page 1 of 2 ZIP 55441 250 NN(171' Development Site Ul Ul Z 3923 1962 3952 O 3915 ol 3948 3911 to MURZYN HALL COMMUNITY S6, LPG \1.139071 A HUSET PROFTPL PAM( 3891 r Z Ki--A 500 JOLLY LN NF 383 -7 323' bM X X 3821 f413WO ORENDORF WAY NF z I). z V PARKVILVV 11 Z R11 Z + +.31 [33., F. hs,A R -�- OPIX-T. 3� J04, W�2j Z,"3?b) f.0 - -,<,?, �3 M'I I , 38'6 1"� 38 N� '38 NAEGELE AVE NE 3*5, X d!'r 3 ,�> ev.)V 'L� LOMIANKI LN NF —31JII AVE NE 'i - 3� ELT In 3614 In P MI-2' aj 3VI, 3 3 - 1-6 z 3-6-1 1606 _ 61 yi 16b 37M A70 7 P- t - W, M 4 4 3_8 �6 3 "80 2 in 3 a 00 L 800 380 38TH AVE NE 38TH AVE C', h sc %0 ?- I- C' -- in In jr, r- 533 545 Ic I R, 37TH AVE NE 252 X. M inn iv LU cc w"I H RHOU i Muni M1 ENE H In! 1 asn NMI oil is, x o- wl 1 I 1 a, - a- P; IN 4g, All -I fill! 1 —1 O f lip 11"M O z Z rz C) Z �41 k cc % -- — — — — — — — - — — m�m 4VI N - -- - - - - - - - - — — — — — — — — -- — — — — — — — — — — — — — — — — — — — — — — UP 'ON 70"H YufuJ) gN amen A41—)vun — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — CH COLUMBIA HEIGHTS AGENDA SECTION CONSENT ITEM NO. 7S MEETING DATE JANUARY 11, 2016 CITY OF COLUMBIA HEIGHTS - COUNCIL LETTER ITEM: RESOLUTION 2016 -09 RESTRICTING PARKING ON THE SOUTH SIDE OF LOOKOUT PLACE BETWEEN BAKKEN BOULEVARD AND 5T" STREET AND 30 FEET FROM EACH CORNER ON THE NORTH SIDE OF LOOKOUT PLACE BETWEEN BAKKEN BOULEVARD AND 5T" STREET. DEPARTMENT: Public Works CITY MANAGER'S APPROVAL: BY /DATE: Kevin Hansen / January 7, 2016 BY /DATE: BACKGROUND: At the December Traffic Commission meeting a request for "No Parking" on Lookout Place was discussed. The concern is the combination of intersections close together and the width of Lookout Place, especially during the winter months. Lookout Place is 30' wide. As a comparison, most residential streets in Columbia Heights are 31' to 33' wide. There are no driveways in this section of Lookout Place. The distance between intersections on the south side is about 110'. Approximately three vehicles could park on each block along the south side. Approximately eight vehicles can park along the north side of Lookout Place. Private streets in the area have no street parking on either side. Visibility of traffic on 5th Street is an issue when vehicles are parked on the north side of Lookout Place. ANALYSIS /CONCLUSIONS: The Traffic Commission held a public hearing to consider "No Parking" on the south side of Lookout Place and "No Parking" for 30' from each corner on the north side of Lookout Place between Bakken Boulevard and 5th Street at their meeting on January 4, 2016. Property owners within 300' of the intersections were notified of the hearing by mail. One person was in attendance at the hearing and supported the proposed parking restrictions. Staff recommends the parking restrictions, based on the recommendation of the Traffic Commission. RECOMMENDED MOTION(S): Move to waive the reading of Resolution 2016 -09, there being ample copies available to the public. Move to adopt Resolution 2016 -09, being a resolution restricting parking on the south side of Lookout Place and 30' from each corner on the north side of Lookout Place between Bakken Boulevard and 5th Street, based on the recommendation of the Traffic Commission. ATTACHMENT(S): Resolution 2016 -09 Lookout Place Aerial 255 RESOLUTION NO. 2016 -09 A resolution of the City Council for the City of Columbia Heights, Minnesota, Whereas, the existing street, Lookout Place, does not provide adequate width for effective traffic flow with parking on the south side of the street between Bakken Boulevard and 5th Street and does not provide adequate visibility on the north side at the corners of Bakken Boulevard and 5th Street; and WHEREAS, the private streets in the area have no street parking on either side; and WHEREAS, the Traffic Commission held a public hearing on January 4, 2016 and recommended the proposed "No Parking" restrictions. Now therefore, in accordance with the foregoing, and all ordinances and regulations of the City of Columbia Heights, the City Council of the City of Columbia Heights makes the following: FINDINGS OF FACT That the "City" shall ban the parking of motor vehicles along the south side of Lookout Place between Bakken Boulevard and 5th Street at all times and ban the parking of motor vehicles 30 feet from each corner on the north side of Lookout Place between Bakken Boulevard and 5th Street. ORDER OF COUNCIL Passed this 11th day of January, 2016 Offered by: Seconded by: Roll Call: Gary L. Peterson, Mayor Attest: Katie Bruno, City Clerk /Council Secreta 256 A AN KA cc�t" N IV Lookout Place N .Ardal Phila: Flnsn Sprnp of 2014 257 LO CH COLUMBIA HEIGHTS AGENDA SECTION CONSENT ITEM NO. 7T MEETING DATE JANUARY 11, 2016 CITY OF COLUMBIA HEIGHTS - COUNCIL LETTER ITEM: Second Reading of Ordinance 1624, a Cable Television Franchise Ordinance DEPARTMENT: Administration CITY MANAGER' APPROVAL: s. BY /DATE: Kelli Bourgeois 01/08/2016 BY /DATE: / ,,1 BACKGROUND: Introduction Following the submission of an application for a cable television franchise for the City of Columbia Heights (the "City "), the above - entitled matter initially came before the City for a public hearing on March 23, 2015. Said public hearing was held open through March 27, 2015, for the purpose of allowing additional written public comments. Following the public hearing, the City Staff prepared a detailed report entitled "Staff Report on CenturyLink Cable Franchise Application" (the "Report "). The City received and filed the Report and directed City staff to a negotiate cable television franchise with CenturyLink. City staff negotiated a cable television franchise with CenturyLink and it is now before the Council for consideration. The City must hold a public hearing on the proposed franchise ordinance and adopt written findings related to its final decision. Supporting Information On March 12, 2015, the City received a cable franchise application from CenturyLink. Comcast Cable currently has a non - exclusive franchise agreement with the City, which means the City Council may grant additional franchises to provide cable service in the City. A public hearing on the application was held on March 23, 2015, and additional written comments from the public were accepted through March 27, 2015. Following the public hearing, staff prepared a Report, which recommended that the City receive and file the Report and direct staff to negotiate a cable franchise with CenturyLink, consistent with the Report. On May 11, 2015, the City adopted the recommendation. This action did not approve a franchise. The City's outside attorney, Mike Bradley, Bradley Hagen & Gullikson, LLC, in consultation with Kelli Bourgeois, Assistant to the City Manager, engaged in cable franchise negotiations with CenturyLink. The attached cable franchise is the product of those negotiations. In reviewing the CenturyLink cable franchise, there are two primary issues to consider. The first is whether federal law preempts Minnesota's 5 -Year Build Statute. Minnesota Statues Section 238.084, subdivision 1(m) requires all initial franchises to have a provision that requires a cable operator build out its cable system at a rate of 50 plant miles per year and that its cable system be substantially complete within 5 years. As the Report indicated, CenturyLink claims that this 5 -Year Build Statute is an unlawful barrier to entry and is preempted by federal law and an FCC decision referred to as the 621 Order. The Report also indicated that there is no case law in Minnesota directly addressing preemption of the 5 -Year Build Statute. The Report concluded that CenturyLink has a good faith basis on its preemption claim and is willing to indemnify the City related to any litigation surrounding the grant of a franchise to CenturyLink. CenturyLink refused to incorporate the language of the 5 -Year Build Statute in the proposed franchise, based on its preemption argument. As described below, the proposed CenturyLink franchise ordinance has provisions for a reasonable 258 City of Columbia Heights - Council Letter Page 2 build -out of the city. The proposed franchise ordinance also has provision for defense and indemnification of the City regarding this issue. The next issue is whether the CenturyLink franchise contains a reasonable build -out schedule. The franchise ordinance recognizes that CenturyLink has already constructed a legacy communications system throughout the City, which is capable of providing telephone and internet service. The build -out provisions in the franchise are related to upgrades of the legacy system to make it capable of providing cable service to all city residents. The proposed CenturyLink Franchise addresses build -out as follows: • Complete Equitable Build -Out. Goal is to build -out the entire city over 5 -year term, based on market success, with a significant investment targeted to areas below the median income in the city. • Initial Minimum Build -Out Commitment. 15% of the city over two years. • CenturyLink must make its best effort to complete the initial deployment in a shorter period of time. • Equitable Deployment to households in the City. • Must include a significant number of households below the medium income of the City. • CenturyLink permitted to serve more households than the initial commitment. • Quarterly Meetings. Starting January 1, 2016, CenturyLink must meet with the City and show to the City's satisfaction: • Number of households capable of being served and actually served. • Compliance with anti - redlining requirements. • Maps and documentation "showing exactly where within the City the Grantee is currently providing cable service." Additional Build -Out Based on Market Success. Starting January 1, 2016, the CenturyLink build - out commitment will increase if its penetration rate is at least 27.5% in the areas that it is offering service. o Example: If CenturyLink is offering service to 60% of the City and CenturyLink has penetration of 30% in that area, then the build -out commitment will increase by 15 %, to cover 75% of the city. o Additional build -out commitment continues until all households are served. • Line Extension. No initial mandatory line extension, unless CenturyLink becomes the dominate cable provider. Then the City decides CenturyLink's build -out schedule, including a density requirement that is the same or similar to Comcast's density requirement. The City may consider whether the Initial Minimum Build -Out Commitment of 15% of the City over two years is reasonable. CenturyLink claimed in its application that it initially would be providing service to a greater portion of the City. During negotiations however, CenturyLink was concerned about having too high a commitment in the franchise ordinance and that cities in Minnesota and elsewhere would use a greater commitment as a new standard. CenturyLink refused to increase the Initial Minimum Build -Out Commitment above 15 %. However, the provisions related to Quarterly Meetings and Additional Build -Out Based on Market Success are designed to quicken and increase CenturyLink's initial Build -Out Commitment. The franchise also has provisions requiring that residents of the City be included in an equitable initial build commitment and that a significant number of households below the medium income of the city also be included in the initial build -out. CenturyLink must also use its best efforts to complete its initial build faster than two years. 259 City of Columbia Heights - Council Letter Page 3 Another issue related to the reasonable build -out is whether the penetration rate triggering additional build - out is reasonable. CenturyLink claims that it needs a penetration rate of 27.5% in order to commit to an additional mandatory build in the city. This penetration number is based on internal CenturyLink return on investment models. Given Comcast's penetration rate in the City is around 40 -50 %, a penetration rate of 27.5% may be difficult to obtain and, therefore, it is possible that CenturyLink may not be required to build - out more than its initial commitment. Economic redlining or "cherry picking' was identified as a concern through the public hearing process. As the Report noted, cherry picking is prohibited by the Federal Cable Act. See 47 U.S.C. § 541(a)(3). The proposed CenturyLink franchise prohibits cherry picking, identical to the Comcast franchise. To ensure compliance, CenturyLink has an additional $500 per day penalty /liquidated damage for violating the build -out and economic redlining provisions of the Franchise. The Report also described the State's level playing field statute, which requires competitive cable franchises not to be more favorable or less burdensome than an incumbent's franchise as it relates to franchise fees, support of public, educational, and governmental access television and the area served. CenturyLink is required to pay a franchise fee of 5% of its Gross Revenues (Identical to Comcast Franchise). The Franchise Area is the entire city (Identical to Comcast Franchise). The Public, Educational, and Governmental ( "PEG ") Access Requirements of the CenturyLink franchise meet, and in places exceed, Comcast's franchise commitments. The CenturyLink PEG commitments are summarized as follows: • Number of Access Channels. CenturyLink will provide 4 Access Channels (same number of Access Channels as Comcast). • Format of Access Channels. CenturyLink will provide all 4 Access Channels in HD if the City sends them in HD format (Comcast will provide up to 2 Access Channels in HD over time). • Electronic Programming Guide. CenturyLink will have similar requirement as Comcast. • Channel Placement. CenturyLink will make all Access Channels accessible at Channel 21 through the "Columbia Heights Mosaic." The Access Channels will be physically located in the 8000s (Comcast has no mosaic and is required to have all the HD Access Channels located near the broadcast channels). • Public Service Announcements. CenturyLink will allow the City to air PSAs on non - Access channels during periods of unsold /unused air time (Exceeds Comcast's commitment). • Video On- Demand. CenturyLink will provide 25 hours of VOID (Exceeds Comcast's PEG commitment). • PEG Support. CenturyLink will pay a PEG Fee in support of the Access Channels of $.90 adjusted by CPI starting in 2016. (Amount of funding identical to Comcast). Overall, the CenturyLink cable franchise is substantially similar to the Comcast cable franchise in most respects. The following highlights the differences between the two cable franchises: • Term. CenturyLink's Franchise term is 5 years. Comcast's term is 15+ years. • Indemnification of the City. CenturyLink has an additional indemnification commitment that Comcast does not have. 260 City of Columbia Heights - Council Letter Page 4 • Access Channel Commitments. CenturyLink may provide more channels in HD than Comcast. CenturyLink is providing 25 hours of VOD programming, while Comcast is not providing any. PEG support may be used for capital and operational support under the CenturyLink franchise. • Twin Cities Metro PEG Interconnect Network. CenturyLink will provide a network to allow cities throughout the metro area to share live programming with one another. We believe this will be the only such network in the country. • Penalties /Liquidated Damages. CenturyLink franchise has additional damages for violating the Build -Out and Economic Redlining provisions of the franchise that is not in the Comcast franchise. • Build -Out. CenturyLink Franchise has a reasonable build -out commitment based on market success. Comcast does not have a build -out provision, as it built -out the City many years ago. • Line Extension. The CenturyLink franchise does not have an immediate line extension requirement. The City will determine a line extension obligation similar to Comcast's line extension if CenturyLink obtains a 50% penetration level in the City. Comcast has a line extension requirement. At their December 14th meeting the City Council held a public hearing and held the first reading of the Ordinance. STAFF RECOMMENDATION: The City Council must now hold the second reading and act to either approve or deny Cable Franchise Ordinance 1624. The City Council must also consider and approve the Ordinance Summary for publication in the City's legal newspaper. RECOMMENDED MOTION(S): MOTION: Move to waive the reading of Ordinance 1624, a Cable Television Franchise Ordinance, there being ample copies available to the public. MOTION: Move to approve the second reading and adopt Ordinance 1624, approving the proposed franchise ordinance and directing staff to draft findings consistent with its decision. MOTION: Move to approve Summary Ordinance 1624 for publication in the City's legal newspaper. ATTACHMENTS: Ordinance 1624 Ordinance 1624 Summary 261 ORDINANCE NO. 1624 CITY OF COLUMBIA HEIGHTS, MINNESOTA CABLE TELEVISION FRANCHISE ORDINANCE Date: January 11, 2016 KIM ORDINANCE NO. 1624 AN ORDINANCE GRANTING A FRANCHISE TO QWEST BROADBAND SERVICES, INC., D /B /A CENTURYLINK TO CONSTRUCT, OPERATE AND MAINTAIN A CABLE SYSTEM IN THE CITY OF COLUMBIA HEIGHTS, MINNESOTA, FOR THE PURPOSE OF PROVIDING CABLE SERVICE; SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE SYSTEM AND THE PUBLIC RIGHTS -OF -WAY IN CONJUNCTION WITH THE CITY'S RIGHT -OF -WAY ORDINANCE, IF ANY; AND PRESCRIBING PENALTIES FOR THE VIOLATION OF THE PROVISIONS HEREIN; The City Council of the City of Columbia Heights, Minnesota ordains: STATEMENT OF INTENT AND PURPOSE Qwest Broadband Services, Inc., d /b /a CenturyLink ( "Grantee "), applied for a cable franchise to serve the City. The City will adopt separate findings related to the application and the decision to grant a cable franchise to Grantee, which shall be incorporated herewith by reference. The City intends, by the adoption of this Franchise, to bring about competition in the delivery of cable services in the City. Adoption of this Franchise is, in the judgment of the Council, in the best interests of the City and its residents. SECTION 11.101 SHORT TITLE AND DEFINITIONS (A) Short Title. This Franchise Ordinance shall be known and cited as the "CenturyLink Cable Communications Code." (B) Definitions. For the purposes of this Franchise, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number; words in the singular number include the plural; and the masculine gender includes the feminine gender. Unless otherwise expressly stated, words not defined herein or in the City Code shall be given the meaning set forth in Title 47 of the United States Code, as amended, or Chapter 238 of Minnesota Statutes, as amended and, if not defined therein, the words shall be given their common and ordinary meaning. The word "shall" is always mandatory and not merely directory. The word "may" is directory and discretionary and not mandatory. (1) "Affiliate" means any Person who owns or controls, is owned or controlled by, or is under common ownership and control with the Grantee. 263 (2) "Basic Cable Service" means the lowest priced tier of Cable Service that includes the lawful retransmission of local television broadcast signals and any public, educational and governmental access programming required by this Franchise to be carried on the basic tier. Basic Cable Service as defined herein shall not be inconsistent with 47 U.S.C. § 543(b)(7). (3) "Cable Service" or "Service" means (1) the one -way transmission to Subscribers of (a) video programming or (b) other programming services; and (2) Subscriber interaction, if any, which is required for the selection or use of such video programming, or other programming services. Cable Service, as defined herein, does not include any service that is only classified as an information service or a telecommunications service under applicable laws, orders and regulations. The City and Grantee shall conform the definition of Cable Service herein to any binding changes in applicable laws and regulations defining Cable Service or to any binding orders or decisions defining Cable Service. Cable Service shall also include any video programming service for which a franchise from a local government is permitted under state law. (4) "Cable System" or "System" means the facility of the Grantee consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide Cable Service, which includes video programming and which is provided to multiple Subscribers within the City, but such term does not include: (1) a facility that only serves to retransmit the television signals of one or more television broadcast stations; (2) a facility that serves Subscribers without using any Rights -of -Way; (3) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title Il of the Communications Act, except that such facility shall be considered a System (other than for purposes of 47 U.S.C. § 541(c)) if such facility is used in the transmission of video programming directly to Subscribers, unless the extent of such use is solely to provide interactive on -demand services; (4) an open video system that complies with 47 U.S.C. § 573; (5) any facilities of any electric utility used solely for operating its electric utility system; or (6) a translator system which receives and rebroadcasts over - the -air signals. The term "Cable System" or "System" also includes a cable communications system as defined in Minn. Stat. § 238.02, subd. 3. The foregoing definitions of "Cable System" or "System" shall not be deemed to circumscribe or limit the valid authority of the City to regulate or franchise the activities of any other communications or information system or provider of communications service or information service to the full extent permitted by law. This definition shall include any facility that isa "cable system" under federal law or a "cable communications system" under state law. (5) "Channel" means a portion of the electromagnetic frequency spectrum which is used in a Cable System and which is capable of delivering a television channel (as television channel is defined by the Federal Communications Commission by regulation) whether in an analog or digital format. 2 264 (6) "City" means City of Columbia Heights, a municipal corporation, in the State of Minnesota, acting by and through its City Council, or its lawfully appointed designee. (7) "City Cod " means the Columbia Heights City Code, as amended from time to time. (8) "City Council" means the governing body of the City. (9) "Drop" means the cable that connects the ground block on the Subscriber's residence or institution to the nearest feeder cable of the System. (10) "Educational Access Channel" or "Educational Channel" means any Channel(s) on the System set aside by the Grantee for educational use by educational institutions, as contemplated by applicable law. (11) "FCC" means the Federal Communications Commission, its designee, and any legally appointed, designated or elected agent or successor. (12) "Franchise" or "Cable Franchise" means this agreement, as may be amended from time to time, any exhibits attached hereto and made a part hereof, and any related ordinance adopted by the City Council approving this agreement and awarding this Franchise to the Grantee for the express purposes specified herein. (13) "Governmental Access Channel" Channel(s) on the System set aside designee(s). or "Governmental Channel" means any by the Grantee for use by the City or its (14) "Grantee" is Qwest Broadband Services, Inc., d /b /a CenturyLink, and its lawful successors, transferees or assignees. (15) "Gross Revenue" means all revenue derived directly or indirectly by the Grantee or its Affiliates, subsidiaries or parent from the operation of the Cable System in the City to provide Cable Services. Gross Revenue includes, but is not limited to, basic, premium, pay - per -view and other video fees, gross advertising revenues and home shopping revenues, Installation, disconnection, and reconnection fees and charges, equipment rental fees, equipment sale revenues, programming guide revenues, Lockout Device revenues, FCC regulatory fees, leased access channel fees, late fees and administrative fees and franchise fees. Gross Revenue shall not include refundable deposits, bad debt (provided that bad debt that is written off but subsequently collected shall be included in Gross Revenues in the period collected), investment income, programming launch support payments, advertising sales commissions paid to unaffiliated entities, nor any taxes, fees or assessments directly imposed or assessed by any governmental authority on the Grantee's services that are collected by the Grantee on a governmental entity's behalf, provided that franchise fees shall not be regarded as such taxes, fees or 3 265 assessments. The City acknowledges that Grantee maintains its financial books and records, including those books and records pertaining to the City and the calculation of Gross Revenues, in accordance with Generally Accepted Accounting Principles. In the event that the Grantee shall, during the term of this Franchise or any extension(s) thereof, bundle, tie or combine Cable Services (which are subject to the franchise fee provisions hereof) with non -Cable Services that are not subject to the franchise fee provisions hereof, so that Subscribers pay a single fee for more than one class or type of service or receive a discount on Cable Services, a pro rata share of the revenue received for the bundled, tied, or combined services shall, to the extent reasonable, be allocated to Gross Revenues for purposes of computing the franchise fee. To the extent there are published charges or a la carte prices and they are reasonable under applicable law, the pro rata share of revenues allocated to Gross Revenues shall be computed on the basis of the published charge or a la carte price for each of the bundled, tied, or combined services, when purchased separately. Throughout the term of this Franchise, the Grantee agrees that it will not intentionally or unlawfully allocate service revenues for the purpose of evading or reducing the franchise fee payments required herein. If particular non -Cable Services and the revenues derived therefrom may be lawfully included in Gross Revenues for the purpose of assessing a franchise fee at any time after the Effective Date of this Franchise, the City may immediately commence, though on a reasonable implementation schedule, the assessment of a franchise fee on such services to the maximum amount permitted by applicable law. (16) "Household" means a distinct address in the Qwest Corporation ( "QC") network database, whether a residence or small business, subscribing to or being offered cable service. Grantee represents and warrants that it has access to the QC network database and shall demonstrate to the City's reasonable satisfaction how the data required in Section 11.102 are calculated and reported using the QC network database. (17) "Installation" means the connection of the System from feeder cable to the point of connection with the Subscriber Converter, television monitor /receiver or other terminal equipment. (18) "Lockout Device" means an optional mechanical or electrical accessory to a Subscriber's terminal which inhibits the viewing of a certain program, certain Channel, certain Channels or certain signals provided by way of the Cable System. 0 266 (19) "Node" means the transition point between optical light transmission and RF transmission of signals being delivered to and received from the Subscriber's premises. (20) "Normal Business Hours" means those hours during which most similar businesses in the community are open to serve customers. In all cases, "normal business hours" must include some evening hours at least one night per week and /or some weekend hours. (21) "Normal Operating; Conditions" means those service conditions that are within the control of the Grantee. Conditions that are ordinarily within the control of the Grantee include, but are not limited to, special promotions, pay - per -view events, rate increases, regular peak or seasonal demand periods, and the construction and maintenance of the System. Conditions that are not within the control of the Grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. (22) "PEG" or "PEG Access" means public, educational and governmental access programming. For purposes of this Franchise, "governmental" includes (but is not limited to) public libraries, the State, the City Council and City agencies and departments, and the signals generated and transmitted by those entities. (23) "Person" means any individual, partnership, association, joint stock company, joint venture, domestic or foreign corporation, stock or non -stock corporation, limited liability company, professional limited liability corporation, or other organization of any kind, or any lawful successor or transferee thereof, but such term does not include the City. (24) "Public Access Channel(s)" means any Channel(s) on the System set aside by the Grantee for use by the general public, as contemplated by applicable law. (25) "Right -of -Way" or "Rights -of -Way" means the area on, below, or above a public roadway, highway, street, cartway, bicycle lane, and public sidewalk in which the City has an interest, including other dedicated rights -of -way for travel purposes and utility easements of the City which, consistent with the purposes for which they were created, obtained or dedicated, may be used for the purpose of installing, operating and maintaining a System. A Right -of -Way does not include the airwaves above a Right -of -Way with regard to cellular or other non -wire telecommunications or broadcast services. No reference herein to a "Right -of- Way" shall be deemed to be a representation or guarantee by the City that its interest or other right to control or use such property is sufficient to permit its use for the purpose of installing, operating and maintaining the System. (26) "Right -of -Way Ordinance" means the ordinance codifying requirements regarding regulation, management and use of Rights -of -Way in the City, including registration and permitting requirements. 5 267 (27) "Set Top Box" means an electronic device (sometimes referred to as a receiver) which may serve as an interface between a System and a Subscriber's television monitor, and which may convert signals to a frequency acceptable to a television monitor of a Subscriber and may, by an appropriate selector, permit a Subscriber to view all signals of a particular service. (28) "State" means the State of Minnesota and its agencies and departments. (29) "Subscriber" means any Person or entity that lawfully receives Service via the System. In the case of office buildings or multiple dwelling units, the "Subscriber" means the lessee, tenant or occupant. SECTION 11.102 GRANT OF AUTHORITY AND GENERAL PROVISIONS (A) Grant of Franchise. This Franchise is granted pursuant to the terms and conditions contained herein and in applicable law. The Grantee shall comply with all provisions of this Franchise and applicable laws, regulations and codes. Failure of the Grantee to construct, operate and maintain a System as described in this Franchise or to meet obligations and comply with all provisions herein and all applicable laws and regulations, may be deemed a violation of this Franchise. (1) Nothing in this Franchise shall be deemed to waive the lawful requirements of any generally applicable City ordinance existing as of the Effective Date. (2) Each and every term, provision or condition herein is subject to the provisions of state law, federal law, and local ordinances and regulations. The City Code of the City, as the same may be amended from time to time, is hereby expressly incorporated into this Franchise as if fully set out herein by this reference. Notwithstanding the foregoing, the City may not unilaterally alter the material rights and obligations of Grantee under this Franchise. (3) This Franchise shall not be interpreted to prevent the City from imposing additional lawful conditions, including additional compensation conditions for use of the Rights -of -Way, should Grantee provide service other than cable service. (4) The parties acknowledge that Grantee intends that Qwest Corporation ( "QC "), an affiliate of Grantee, will be primarily responsible for the construction and installation of the facilities in the Rights -of -Way, constituting the cable communications system, which will be utilized by Grantee to provide cable service. Grantee promises, as a condition of exercising the privileges granted by this Franchise, that any affiliate of the Grantee, including QC, directly or indirectly involved in the construction, management, or operation of the cable communications system will comply with all applicable federal, state and local laws, rules and regulations regarding the use of the City's rights of way. The City agrees that to the extent QC violates any applicable laws, rules and regulations, 268 the City shall first seek compliance directly from QC. In the event, the City cannot resolve these violations or disputes with QC, or any other affiliate of Grantee, then the City may look to Grantee to ensure such compliance. Failure by Grantee to ensure QC's or any other affiliate's compliance with applicable laws, rules and regulations shall be deemed a material breach of this Franchise by Grantee. To the extent Grantee constructs and installs facilities in the rights -of -way, such installation will be subject to the terms and conditions contained herein. (5) No rights shall pass to Grantee by implication. Without limiting the foregoing, by way of example and not limitation, this Franchise shall not include or be a substitute for: (i) Any other permit or authorization required for the privilege of transacting and carrying on a business within the City that may be required by the ordinances and laws of the City; (ii) Any permit, agreement, or authorization required by the City for Right -of- Way users in connection with operations on or in Rights -of -Way or public property including, by way of example and not limitation, street cut permits; or (iii) Any permits or agreements for occupying any other property of the City or private entities to which access is not specifically granted by this Franchise including, without limitation, permits and agreements for placing devices on poles, in conduits or in or on other structures. (6) This Franchise is intended to convey limited rights and interests only as to those Rights -of -Way in which the City has an actual interest. It is not a warranty of title or interest in any Right -of -Way; it does not provide the Grantee with any interest in any particular location within the Right -of -Way; and it does not confer rights other than as expressly provided in the grant hereof. (7) This Franchise does not authorize Grantee to provide telecommunications service, or to construct, operate or maintain telecommunications facilities. This Franchise is not a bar to imposition of any lawful conditions on Grantee with respect to telecommunications, whether similar, different or the same as the conditions specified herein. This Franchise does not relieve Grantee of any obligation it may have to obtain from the City an authorization to provide telecommunications services, or to construct, operate or maintain telecommunications facilities, or relieve Grantee of its obligation to comply with any such authorizations that may be lawfully required. (B) Grant of Nonexclusive Authority. (1) Subject to the terms of this Franchise, the City hereby grants the Grantee the nonexclusive right to own, construct, operate and maintain a System in, along, among, upon, across, above, over, or under the Rights -of -Way. The grant of authority set forth in this Franchise applies only to the Grantee's provision of Cable Service; provided, however, that nothing herein shall limit the Grantee's 7 269 ability to use the System for other purposes not inconsistent with applicable law or with the provision of Cable Service; and provided further, that any local, State and federal authorizations necessary and lawful for the Grantee's use of the System for other purposes are obtained by the Grantee. This Franchise does not confer any rights other than as expressly provided herein, or as provided by federal, State or local law. No privilege or power of eminent domain is bestowed by this Franchise or grant. The System constructed and maintained by Grantee or its agents pursuant to this Franchise shall not interfere with other uses of the Rights -of -Way. The Grantee shall make use of existing poles and other aerial and underground facilities available to the Grantee to the extent it is technically and economically feasible to do so. The City makes no representation or guarantee that its interest in or right to control any Right -of -Way is sufficient to permit the Grantee's use, and the Grantee shall gain only those rights to use that are within the City's power to convey. (2) Notwithstanding the above grant to use Rights -of -Way, no Right -of -Way shall be used by Grantee if the City determines that such use is inconsistent with the terms, conditions, or provisions by which such Right -of -Way was created or dedicated, or with the present use of the Right -of -Way. (3) This Franchise and the right it grants to use and occupy the Rights -of -Way shall not be exclusive and this Franchise does not, explicitly or implicitly, preclude the issuance of other franchises or similar authorizations to operate Cable Systems and other video networks in the City. (4) This Franchise authorizes only the use of Rights -of -Way for the provision of Cable Service. Therefore, the grant of this Franchise and the payment of franchise fees hereunder shall not exempt the Grantee from the obligation to pay compensation or fees for the use of City property, both real and personal, other than the Rights -of -Way; provided, however, that such compensation or fees are required by City ordinance, regulation or policy and are lawful and nondiscriminatory. (C) Lease or Assignment Prohibited. No Person or governmental body may lease Grantee's System for the purpose of providing Cable Service to Subscribers until and unless such Person shall have first obtained and shall currently hold a valid Franchise or other lawful authorization containing substantially similar burdens and obligations to this Franchise, including, without limitation, a requirement on such Person to pay franchise fees on such Person's or governmental body's use of the System to provide Cable Services, to the extent there would be such a requirement under this Franchise if the Grantee itself were to use the System to provide such Cable Service. Any assignment of rights under this Franchise shall be subject to and in accordance with the requirements of Section 11.110(E). E 270 (D) Franchise Term. The term of this Franchise shall extend from the date of acceptance by the Grantee until December 31, 2020, unless sooner renewed, revoked or terminated as herein provided, or unless extended by the City. (E) Compliance with Applicable Laws, Resolutions and Ordinances. (1) The terms of this Franchise shall define the contractual rights and obligations of the Grantee with respect to the provision of Cable Service and operation of the System in the City. However, the Grantee shall at all times during the term of this Franchise be subject to all lawful exercise of the police powers of the City. The grant of this Franchise does not relieve the Grantee of its obligations to obtain any generally applicable licenses, permits and other authorizations as may be required by the City Code, as it may be amended, for the privilege of operating a business within the Rights -of -Way, to the extent not inconsistent with this Franchise. Except as provided below, any unilateral modification or unilateral amendment to this Franchise, or the rights or obligations contained herein, must be within the lawful exercise of City's police powers, in which case the provision(s) modified or amended herein shall be specifically referenced in an ordinance of the City authorizing such amendment or modification. This Franchise may also be modified or amended with the written consent of Grantee as provided in Section 11.113 (C) herein. (2) The Grantee shall comply with the terms of any City ordinance or regulation of general applicability which addresses usage of the Rights -of -Way within the City which may have the effect of superseding, modifying or amending the terms of Section 11.103 and /or Section 11.108(E)(3) herein, except that the Grantee shall not, through application of such City ordinance or regulation of Rights -of -Way, be subject to additional burdens with respect to usage of Rights -of -Way which exceed burdens placed on similarly situated Rights -of -Way users. Nothing in this Section shall prohibit Grantee from lawfully challenging any ordinance or regulation in a manner consistent with applicable law. (3) In the event of any conflict between Section 11.103 and /or Section 11.108(E)(3) of this Franchise and any City ordinance or regulation which addresses usage of the Rights -of -Way, conflicting terms in Section 11.103 and /or Section 11.108(E)(3) of this Franchise shall be superseded by such City ordinance or regulation, except that the Grantee shall not, through application of such City ordinance or regulation of Right -of -Way, be subject to additional burdens with respect to usage of Rights -of -Way which exceed burdens placed on similarly situated Right -of -Way users. Nothing in this Section restricts Grantee's right to lawfully challenge any ordinance under applicable law. (4) In the event any City ordinance or regulation which addresses usage of the Rights -of -Way adds to, modifies, amends, or otherwise differently addresses issues addressed in Section 11.103 and /or Section 11.108(E)(3) of this Franchise, the Grantee shall comply with such ordinance or regulation of general 0 271 applicability, regardless of which requirement was first adopted except that the Grantee shall not, through application of such City ordinance or regulation of Rights -of -Way, be subject to additional burdens with respect to usage of Rights - of -Way which exceed burdens placed on similarly situated Rights -of -Way users. Nothing in this Section restricts any right or cause of action Grantee may have to lawfully challenge in a court of competent jurisdiction any Right -of -Way Ordinance or regulation adopted by the City which adds to, modifies, amends or differently addresses issues covered in Section 11.103 and /or Section 11.108(E)(3) of this Franchise. Notwithstanding the foregoing, the City does not waive or limit in any way all immunities, arguments, remedies, defenses and causes of action it may have under the Minnesota Constitution, this Franchise and applicable laws, regulations, orders, and decisions. (G) Territorial Area Involved. This Franchise is granted for the corporate boundaries of the City, as they exist from time to time. In the event of annexation by the City, or as development occurs, any new territory shall become part of the territory for which this Franchise is granted. (1) Reasonable Build -Out of the Entire City. The Parties recognize that Grantee, or its affiliate, has constructed a legacy communications system throughout the City that is capable of providing voice grade service. The Parties further recognize that Grantee or its affiliate must expend a significant amount of capital to upgrade its existing legacy communications system and to construct new facilities to make it capable of providing cable service. Further, there is no promise of revenues from cable service to offset these capital costs. The Parties agree that the following is a reasonable build -out schedule taking into consideration Grantee's market success and the requirements of Minnesota state law. (i) Complete Equitable Build -Out. Grantee aspires to provide cable service to all households within the City by the end of the initial term of this Franchise. In addition, Grantee commits that a significant portion of its investment will be targeted to areas below the median income in the City. (ii) Initial Minimum Build -Out Commitment. Grantee agrees to be capable of serving a minimum of fifteen percent (15 %) of the City's households with cable service during the first two (2) years of the initial Franchise term, provided, however that Grantee will make its best efforts to complete such deployment within a shorter period of time. This initial minimum build -out commitment shall include an equitable deployment to households throughout the City and to a significant number of households below the medium income in the City. Nothing in this Franchise shall restrict Grantee from serving additional households in the City with cable service; (iii) Quarterly Meetings. Commencing January 1, 2016, and continuing throughout the term of this Franchise, Grantee shall meet quarterly with the City Manager, or his/her designee. At each quarterly meeting, Grantee shall present information acceptable to the City (to the reasonable satisfaction of the City) showing the 10 272 number of households Grantee is presently capable of serving with cable service and the number of households that Grantee is actually serving with cable service. Grantee shall also present information acceptable to the City (to the reasonable satisfaction of the City) that Grantee is equitably serving all portions of the City in compliance with this subsection 11.102(G). In order to permit the City to monitor and enforce the provisions of this section and other provisions of this Franchise, the Grantee shall promptly, upon reasonable demand, show to the City (to the City's reasonable satisfaction) maps and provide other documentation showing exactly where within the City the Grantee is currently providing cable service; (iv) Additional Build -Out Based on Market Success. If, at any quarterly meeting, Grantee is actually serving twenty seven and one -half percent (27.5 %) of the Households capable of receiving cable service, then Grantee agrees the minimum build - out commitment shall increase to include all of the Households then capable of receiving cable service plus an additional fifteen (15 %) of the total households in the City, which Grantee agrees to serve within two (2) years from the quarterly meeting; provided, however, the Grantee shall make its best efforts to complete such deployment within a shorter period of time. For example, if, at a quarterly meeting with the City Manager, Grantee shows that it is capable of serving sixty percent of the households in the City with cable service and is actually serving thirty percent of those households with cable service, then Grantee will agree to serve an additional fifteen percent of the total households in the City no later than 2 years after that quarterly meeting (a total of 75% of the total households). This additional build -out based on market success shall continue until every household in the City is served; (v) Line Extension. Grantee shall not have a line extension obligation until the first date by which Grantee is providing Cable Service to more than fifty percent (50 %) of all subscribers receiving facilities based cable service from both the Grantee and any other provider(s) of cable service within the City. At that time, the City, in its reasonable discretion and after meeting with Grantee, shall determine the timeframe to complete deployment to the remaining households in the City, including a density requirement that is the same or similar to the requirement of the incumbent franchised cable operator. (H) Written Notice. Except as otherwise provided herein, all notices, reports, or demands required to be given in writing under this Franchise shall be deemed to be given when delivered personally to any officer of the Grantee or the City's designated Franchise administrator, via courier or e-mail, or forty -eight (48) hours after it is deposited in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the party to whom notice is being given, as follows: If to City: City of Columbia Heights, Minnesota 590 40t1i Avenue N.E. Columbia Heights, Minnesota 55421 -3878 Attention: City Manager 11 273 With copies to: Michael R. Bradley Bradley Hagen & Gullikson, LLC 1976 Wooddale Drive, Suite 3A Woodbury, Minnesota 55125 If to Grantee: Qwest Broadband Services, Inc. d/b /a CenturyLink 1801 California St., 10a' Mr. Denver, CO 80202 Attn: Public Policy With copies to: Qwest Broadband Services Inc., d/b /a CenturyLink 200 S. 5t1' Street, 21" Flr. Minneapolis, MN 55402 Attn: Public Policy Such addresses may be changed by either party upon notice to the other party given as provided in this Section. (I) Effective Date. This Franchise shall become effective on February 10, 2016 (the "Effective Date "), provided that: (i) all conditions precedent to its effectiveness as an ordinance of the City have occurred; (ii) all conditions precedent to its execution are satisfied; (iii) it has been approved and adopted by the City Council in accordance with applicable law; and (iv) it has been accepted and signed by the Grantee and the City in accordance with Section 11.114. (J) Competitive Equity. (1) Any Cable Service Franchise granted by the City shall be nonexclusive and shall not preclude the City from granting other or further Cable Service franchises. The City reserves the right to grant one (1) or more additional Cable Service franchises. The City shall amend this Franchise, as requested by the Grantee, if it grants additional Cable Service franchises or similar authorizations that contain material terms or conditions which are substantially more favorable or less burdensome to the additional franchise holder than the material terms and conditions herein. A word for word identical franchise or authorization for a competitive entity is not required so long as the regulatory and financial burdens on each entity are generally equivalent. (2) In the event an application for an additional Cable Service franchise is filed with the City, the City shall notify the Grantee. SECTION 11.103 CONSTRUCTION STANDARDS (A) Registration, Permits and Construction Codes. 12 274 (1) Grantee shall strictly adhere to all State and local laws and building and zoning codes currently or hereafter applicable to the location, construction, installation, operation or maintenance of the System in the City and give due consideration at all times to the aesthetics of public and private property. (2) Repeated failure to obtain permits or to comply with permit requirements shall be grounds for revocation of this Franchise, or any lesser sanctions provided herein or in any other applicable law, code or regulation. (B) Repair of Rights -of -Way and Property. Any Rights -of -Way, or any sewer, gas or water main or pipe, drainage facility, electric, fire alarm, police communication or traffic control facility of the City, or any other public or private property, which is disturbed, damaged or destroyed during the construction, repair, replacement, relocation, operation, maintenance, expansion, extension or reconstruction of the System shall be promptly and fully restored, replaced, reconstructed or repaired by the Grantee, at its expense, to the same condition as that prevailing prior to the Grantee's work and shall maintain the surface in good condition for six months thereafter, to the extent consistent with applicable statutes and rules and to the extent required of other utilities making use of the Rights -of- Way. It is agreed that in the normal course, with respect to fire and police department facilities and equipment, and water and sewer facilities, and other essential utilities and services, as determined by the City, such restoration, reconstruction, replacement or repairs shall be commenced as quickly as possible under the circumstances after the damage, disturbance or destruction is incurred, and the Grantee shall take diligent steps to complete the same, unless an extension of time is obtained from the appropriate City agency or department. In all other cases, reconstruction, replacement, restoration or repairs shall be commenced within no more than three (3) days after the damage, disturbance or destruction is incurred, and shall be completed as soon as reasonably possible thereafter. If the Grantee shall fail to perform the repairs, replacement, reconstruction or restoration required herein, and to remove all dirt, rubbish and material, the City shall have the right to put the Rights -of -Way, public or private property back into good condition. In the event City determines that the Grantee is responsible for such disturbance or damage, the Grantee shall be obligated to fully reimburse the City for required repairs, reconstruction and restoration. This remedy shall be in addition to any other remedy available to the City for noncompliance with the City Code, the Right -of -Way Ordinance, State law and applicable rules, regulations, standards and requirements. (C) Conditions on Right -of -Way Use. (1) Nothing in this Franchise shall be construed to prevent City from constructing, maintaining, repairing or relocating sewers; grading, paving, maintaining, repairing, relocating and /or altering any Right -of -Way; constructing, laying down, repairing, maintaining or relocating any water mains; or constructing, maintaining, relocating, or repairing any sidewalk or other public work. 13 275 (2) All System transmission and distribution structures, lines and equipment erected by the Grantee within the City shall be located so as not to obstruct or interfere with the use of Rights -of -Way, except for normal and reasonable obstruction and interference which might occur during construction and to cause minimum interference with the rights of property owners who abut any of said Rights -of- Way and not to interfere with existing public utility installations. (3) The Grantee shall, at its sole expense, by a reasonable time specified by the City, protect, support, temporarily disconnect, relocate or remove any of its property when required by the City by reason of traffic conditions; public safety; Rights - of -Way construction; street maintenance or repair (including resurfacing or widening); change in Right -of -Way grade; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks or any other type of government -owned communications or traffic control system, public work or improvement of government -owned utility; Right -of -Way vacation; or for any other purpose where the convenience of the City would be served thereby. If the Grantee fails, neglects or refuses to comply with the City's request, the City may protect, support, temporarily disconnect, relocate or remove the appropriate portions of the System at the Grantee's expense. The City shall not be liable to the Grantee for damages resulting from the City's protection, support, disconnection, relocation or removal, as contemplated in the preceding sentence, except where such damage is the result of the City's gross negligence or willful misconduct. (4) All poles, conduits, or other fixtures placed in any Right -of -Way shall be so placed as to comply with all reasonable and lawful requirements of the City. (5) The Grantee shall, upon request of any Person holding a moving permit issued by City, temporarily move its wires or fixtures to permit the moving of buildings with the expense of such temporary removal to be paid by the Person requesting the same, and the Grantee shall be given not less than ten (10) days' advance written notice to arrange for such temporary changes. (6) To the extent consistent with generally applicable City Code provisions, rules and regulations, the Grantee shall have the right to remove, cut, trim and keep clear of its System trees or other vegetation in and along or overhanging the Rights -of- Way. However, in the exercise of this right, the Grantee agrees not to cut or otherwise injure said trees to any greater extent than is reasonably necessary. All trimming shall be performed at no cost to the City or a homeowner. (7) Grantee shall use its best efforts to give reasonable prior notice to any adjacent private property owners who will be negatively affected or impacted by Grantee's work in the Rights -of -Way. (8) If any removal, relaying or relocation of the System is required to accommodate the construction, operation or repair of the facilities of a Person that is authorized 14 276 to use the Rights -of -Way, the Grantee shall, after thirty (30) days' advance written notice and payment of all costs by such Person, commence action to effect the necessary changes requested by the responsible entity. If multiple responsible parties are involved, the City may resolve disputes as to the responsibility for costs associated with the removal, relaying or relocation of facilities among entities authorized to install facilities in the Rights -of -Way if the parties are unable to do so themselves, and if the matter is not governed by a valid contract between the parties or any State or federal law or regulation. (9) In the event the System is contributing to an imminent danger to health, safety or property, as reasonably determined by the City, after providing actual notice to the Grantee, if it is reasonably feasible to do so, the City may remove or relocate any or all parts of the System at the Grantee's expense. (D) Undergrounding of Cable. (1) Where existing poles, underground conduits, ducts or wire - holding structures are available for use by the Grantee, but it does not make arrangements for such use, the City may require, through the established permit, or any other applicable procedure, the Grantee to use such existing poles and wire - holding structures if the City determines that the public convenience would be enhanced thereby. The Grantee may decline to use such third -party structures after (i) demonstrating to the City that such use would be incompatible with the Grantee's regular requirements for aerial or underground facilities, and (ii) receiving the City's approval, which shall not be unreasonably withheld. (2) The Grantee agrees to place its cables, wires or other like facilities underground, in the manner as may be required by the provisions of the City Code, the Right - of -Way Ordinance and City policies, procedures, rules and regulations, as amended from time to time, where all utility facilities are placed underground. The Grantee shall not place facilities, equipment or fixtures where they will interfere with any existing gas, electric, telephone, water, sewer or other utility facilities or with any existing installations of the City, or obstruct or hinder in any manner the various existing utilities serving the residents of the City. To the extent consistent with the City Code, the Right -of -Way Ordinance, and City policies, procedures, rules and regulations, System cable and facilities may be constructed overhead where poles exist and electric or telephone lines or both are now overhead. However, in no case may the Grantee install poles in areas of the City where underground facilities are generally used by the utilities already operating. If the City, at a future date, requires all electric and telephone lines to be placed underground in all or part of the City, the Grantee shall, within a reasonable time, similarly move its cables and lines. If the City reimburses or otherwise compensates any Person using the Rights -of -Way for the purpose of defraying the cost of any of the foregoing, the City shall also reimburse the Grantee in the same manner in which other Persons affected by the requirement are reimbursed. If the funds are controlled by another governmental entity, the 15 277 City shall not oppose or otherwise hinder any application for or receipt of such funds on behalf of the Grantee. (E) Installation of Facilities. (1) No poles, conduits, ducts, cabinets, pedestal mounted boxes, similar structures, or other wire - holding structures shall be erected or installed by the Grantee without a required City permit or other authorization from the City. (2) No placement of any pole, cabinet, box, equipment or wire - holding structure of the Grantee is to be considered a vested fee interest in the Rights -of -Way or in City property. Whenever feasible, all transmission and distribution structures, lines, wires, cables, equipment and poles or other fixtures erected by the Grantee within the City are to be so located and installed as to cause minimum interference with the rights and convenience of property owners. (F) Safety Requirements. (1) All applicable safety practices required by law shall be used during construction, maintenance and repair of the System. The Grantee agrees, at all times, to employ ordinary and reasonable care and to install and maintain in use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage or injuries to the public or to property. All structures and all lines, equipment and connections in the Rights -of -Way shall at all times be kept and maintained in a safe condition, consistent with applicable safety codes. (2) The Grantee's construction, operation or maintenance of the System shall be conducted in such a manner as not to interfere with City communications technologies related to the health, safety and welfare of City residents. (3) The Grantee shall install and maintain such devices as will apprise or warn Persons and governmental entities using the Rights -of -Way of the existence of work being performed on the System in Rights -of -Way. (4) The Grantee shall be a member of the One Call Notification System (otherwise known as "Gopher State One Call ") or its successor, and shall field mark the locations of its underground facilities upon request. Throughout the term of this Franchise, the Grantee shall identify the location of its facilities for the City, free of charge. (G) Removal of Facilities at Expiration of Franchise. At the expiration of the term for which this Franchise is granted, or upon the expiration of any renewal or extension period which may be granted, the City shall, subject to any other lawful and valid authorizations the Grantee may have to use the System in Public Rights -of -Way, have the right to require the Grantee, at the Grantee's sole expense: (i) to remove all portions of the System from all Rights -of -Way within the City; and (ii) to restore affected sites to their original 16 278 condition. The City may not order removal the System, or portions thereof, until the parties have exhausted all applicable processes governing cable television franchise renewals set forth in 47 U.S.C. § 546. Should the Grantee fail, refuse or neglect to comply with the City's directive, all portions of the System, or any part thereof, may at the option of the City become the sole property of the City, at no expense to the City, or be removed, altered or relocated by the City at the cost of the Grantee. The City shall not be liable to the Grantee for damages resulting from such removal, alteration or relocation. SECTION 11.104 DESIGN PROVISIONS (A) System Capacity and Technical Design. (1) The Grantee's System generally shall have at least the following characteristics: (a) a modern design, utilizing an architecture that will permit additional improvements necessary for high - quality and reliable service throughout the Franchise term, and the capability to operate continuously on a twenty -four (24) hour a day basis without severe material degradation during operating conditions typical to the Minneapolis /St. Paul metropolitan area; (b) standby power generating capacity at the headend. The Grantee shall maintain motorized standby power generators capable of powering all headend equipment for at least twenty -four (24) hours. The back -up power supplies serving the System shall be capable of providing power to the System for not less than three (3) hours per occurrence measured on an annual basis according to manufacturer specifications in the event of an electrical outage. The Grantee shall maintain sufficient portable motorized generators to be deployed in the event that the duration of a power disruption is expected to exceed three (3) hours; (c) a System that conforms to or exceeds all applicable FCC technical performance standards, which standards are incorporated herein by reference, industry standards and manufacturers' specifications concerning the transmission and reception of analog and digital video programming and other programming services, and any other applicable technical performance standards. Upstream signals shall at all times meet or exceed manufacturers' specifications for successful operation of upstream equipment provided by the Grantee or approved for use by the Grantee at any Subscriber's premises. End of the line performance must meet or exceed FCC specifications at the end of the Subscriber Drop; (d) a System that shall, at all times, comply with applicable, then - current federal, State and local rules, regulations, practices and guidelines 17 279 pertaining to the construction, upgrade, operation, extension and maintenance of Cable Systems, including, by way of example (but not limitation): (i) National Electrical Code, as amended from time to time; and (ii) National Electrical Safety Code (NESC), as amended from time to time. (e) facilities and equipment sufficient to cure violations of FCC technical standards and to ensure that Grantee's System is in compliance with the standards specified in subsection 11.104(A)(1)(d); (f) such facilities and equipment as are necessary to maintain, operate and evaluate the Grantee's System for compliance with FCC technical and customer service standards, as such standards may hereafter be amended; (g) status monitoring equipment to alert the Grantee when and where back -up power supplies are being used; (h) antenna supporting structures designed in accordance with any applicable, then - current governmental building codes, as amended, and painted, lighted and erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration, the FCC and all other applicable codes and regulations; (i) the Grantee shall provide adequate security provisions in its Subscriber site equipment to permit parental control over the use of Grantee's Cable Service. The Grantee, however, shall bear no responsibility for the exercise of parental controls and shall incur no liability for any Subscriber's or viewer's exercise or failure to exercise such controls; (j) facilities and equipment capable of operating within the temperature ranges typical to the climate of the City over the calendar year; (k) the System shall be constructed and operated (i) so that there is no material deterioration in the quality of Public Access Channel, Educational Access Channel or Governmental Access Channel signals after delivery of such signals to the first interface point with Grantee's System, Grantee's headend or the subscriber network, and (ii) so that PEG signals are at the same or better level of technical quality and reliability as commercial signals carried by the Grantee on its System, so long as the PEG signal comes to the Grantee at that level of quality. All processing equipment used by the Grantee for processing PEG signals will be of similar quality to the processing equipment used for commercial Channels; and 18 280 (1) the Grantee shall insure that the System complies with applicable FCC rules and regulations pertaining to signal leakage and shall ensure there is no degradation of picture quality delivered to Subscribers. (2) All power supplies for the System shall be equipped with standby power capability in accordance with Section 11.104(A)(1)(b). Additionally, the Grantee shall use status monitoring equipment at all power supply locations in the System. Such equipment shall have the capabilities described in Section 11.104(A)(1)(g). (3) Emergency Alert System. The Grantee shall maintain an Emergency Alert System ( "EAS ") fully compliant with local, State and federal EAS requirements. This EAS shall at all times be operated in compliance with FCC regulations. (4) The Grantee shall, in connection with any new underground System construction, install conduit adequately sized to address future System rebuilds or System additions, with the intent to limit the need to reopen Rights -of -Way for construction and installation work. (5) The Grantee shall not assert or otherwise raise any claim before a court of competent jurisdiction or any administrative agency alleging that, as of the Effective Date of this Franchise, the minimum System design and performance requirements set forth in this Franchise are unenforceable under or inconsistent with then current applicable laws or regulations, or any orders, rules or decisions of the FCC. (B) System Construction. (1) Subject to the reasonable build -out provisions in subsection 11.102(G)(1), the Grantee shall construct and operate its System so that it is able to offer and provide Cable Service to all Persons within the City as of the Effective Date of this Franchise, upon request, without charging such Persons more than the Standard Installation charges for the individual Drop. Notwithstanding anything to the contrary in this Franchise, the Grantee shall continue to offer Cable Service to all locations serviceable prior to the Effective Date of this Franchise. The requirements in this paragraph may be waived in writing by the City, in its sole discretion, upon request. (2) Except as otherwise provided herein, and subject to the reasonable build -out provisions in subsection 11.102(G)(1), the Grantee shall be given a reasonable period of time to construct and activate cable plant to service annexed or newly developed areas in the City. (3) All System construction and maintenance shall be performed in accordance with applicable laws, procedures, standards and regulations. 19 281 (4) The Grantee shall provide the City with notice prior to commencement of all steps of System construction or maintenance in which possible service disruptions or major physical construction activities may occur, including but not limited to: (i) pedestal and cabinet placements or replacements; (ii) underground duct placements or replacements; (iii) overlashing of aerial fiber optic, coaxial or copper lines; and (iv) underground placement or replacement of vaults and cables. (5) The Grantee shall maintain complete and comprehensive maps of the System throughout the Franchise term, and shall make them available to the City for inspection, upon request, on a confidential basis, to the extent confidential treatment is permitted by law. Such maps shall be updated as changes occur in the System. The Grantee shall provide to the City, upon request, (including any electronic form regularly maintained in the normal course of business) copies of all strand maps showing the Grantee's facilities and equipment in the Rights -of- Way, and on private property where necessary to investigate citizen complaints or to determine Franchise compliance. The Grantee shall also maintain throughout the Franchise term a full set of headend, hub, and Node routing diagrams, showing routing from source input to combiner output and routing between headends, hubs, and Nodes for all System signal transport. Such routing diagrams shall be made available to the City for inspection, upon request, on a confidential basis, to the extent confidential treatment is permitted by law. In addition, the Grantee shall, upon request, provide the City with all data and information specified in Minnesota Rules, Part 7819.4100. At the City's request, the Grantee shall provide existing data on its existing facilities within the Rights -of -Way in the form maintained by the Grantee at the time the request was made, if available. (6) Following commencement of any major System construction, the Grantee shall, upon request of the City, meet with the City and provide an update on the progress of the System construction. Prior to the beginning of the System construction, and periodically during each phase of construction, the Grantee shall inform the public and its Subscribers, through various means, about: (i) the progress of the construction; (ii) areas where construction crews will be working; and (iii) any expected temporary interruptions to existing services which may occur. (C) System Maintenance. (1) The Grantee shall interrupt service only for good cause and for the shortest time possible. Such interruption shall occur during periods of minimum use of the System. The Grantee shall use its best efforts to provide the City with at least twenty -four (24) hours prior notice of a planned service interruption, except for a planned service interruption which will have a minimal impact on Subscribers usually meaning affecting less than one hundred (100) Subscribers or less than a fifteen (15) minute interruption. If service is interrupted for more than twenty - four (24) consecutive hours, Subscribers shall be credited pro rata for such interruption, upon notifying Grantee orally or in writing. 20 282 (2) Maintenance of the System shall be performed in accordance with the technical performance and operating standards established by FCC rules and regulations. Should the FCC choose to abandon this field and does not preempt the City's entry into this field, the City may adopt such technical performance and operating standards as its own, and the Grantee shall comply with them at all times. (D) Technical Standards. The technical standards used in the operation of the System shall comply, at minimum, with the applicable technical standards promulgated by the FCC relating to Cable Systems pursuant to Title 47, Section 76.601, et seq., as may be amended or modified from time to time, which regulations are expressly incorporated herein by reference, as well as applicable industry standards (e.g., NTSC and ATSC), manufacturers' specifications and good engineering practices. The results of tests required by the FCC shall be retained by the Grantee in a manner consistent with applicable law, and shall be made available to the City for inspection upon written request or as otherwise permitted by applicable law, including Minn. Stat. § 238.084, Subd. 1(q). (E) System Tests and Inspections; Special Testing. (1) Grantee shall perform all tests necessary to demonstrate compliance with the requirements of the Franchise and other performance standards established by law or regulation. (2) The City shall have the right to inspect all construction or installation work performed pursuant to the provisions of the Franchise. In addition, the City may require special testing of a location or locations within the System if there is a regular pattern of controversy or unresolved complaints regarding such construction or installation work or pertaining to such location(s). Demand for such special tests may be made on the basis of complaints received or other evidence indicating a regular pattern of unresolved controversy or noncompliance. Such tests shall be limited to the particular matter in controversy or unresolved complaints. The City shall endeavor to so arrange its request for such special testing so as to minimize hardship or inconvenience to Grantee or to the Subscribers caused by such testing. (3) Before ordering such tests, Grantee shall be afforded thirty (30) days following receipt of written notice to investigate and, if necessary, correct problems or complaints upon which tests were ordered. The City shall meet with Grantee prior to requiring special tests to discuss the need for such and, if possible, visually inspect those locations which are the focus of concern. If, after such meetings and inspections, the City wishes to commence special tests and the thirty (30) days have elapsed without correction of the matter in controversy or unresolved complaints, the tests shall be conducted at Grantee's expense by a qualified engineer selected by City and Grantee shall cooperate in such testing. Any costs and expenses associated with testing or retesting the System shall not 21 283 be considered franchise fees and shall not be deducted from or offset against franchise fee payments or other payments made to the City. (4) Unless otherwise provided in this Franchise, tests shall be supervised by the Grantee's chief technical authority, or designee, who shall certify all records of tests provided to the City. (5) The Grantee shall provide the City with at least two (2) business days' prior written notice of, and opportunity to observe, any special tests required by the City pursuant to subparagraph (2) of this Section and performed on the System. (a) Test results shall be provided to the City within fourteen (14) days of a written request by the City, unless otherwise required by the terms of this Franchise. (b) If any test indicates that any part or component of the System fails to meet applicable requirements, the Grantee, without requirement of additional notice or request from the City, shall take corrective action, retest the locations and advise the City of the action taken and the results achieved by filing a written report certified by the Grantee's chief technical authority, or designee. Any costs associated with testing or retesting the System shall not be considered franchise fees and shall not be deducted from or offset against franchise fee payments or other payments made to the City. (F) FCC Reports. Unless otherwise required by the terms of this Franchise, the results of any tests required to be filed by Grantee with the FCC or in the Grantee's public file, as it relates to Cable Service in the City, shall upon request of City also be made available to the City for review at Grantee's local offices within ten (10) days of the request. (G) Lockout Device. Upon the request of a Subscriber, Grantee shall make available a Lockout Device at its regular and nondiscriminatory charge to Subscribers. (H) Types of Service. Any change in programs or services offered shall comply with all lawful conditions and procedures contained in this Franchise and in applicable laws or regulations. (I) Uses of System. The Grantee shall, upon request of the City, advise the City of all active uses of the System, for both entertainment and other purposes, and the City shall have the right to conduct unannounced audits of such usage. 22 284 SECTION 11.105 SERVICE PROVISIONS (A) Customer Service Standards. The Grantee shall at all times comply with applicable FCC customer service standards and all applicable State standards, which standards are incorporated into and made a part of this Franchise. Applicable customer service standards in effect on the Effective Date of this Franchise include, but are not limited to, those customer service requirements set forth in this Section 11.105 and Exhibit A, which is attached hereto and incorporated herein. Nothing in this Franchise shall limit the City's ability to adopt and, upon 90 days' notice to Grantee, enforce additional or stricter customer service standards than those delineated in federal law to the extent permitted by applicable law. The parties acknowledge that Grantee may pass through to Subscribers direct and verifiable costs attributable to complying with such additional or stricter customer service standards adopted by the City in any manner consistent with and permitted by applicable law. (B) Video Programming. Except as otherwise provided in this Franchise or in applicable law, all video programming decisions remain the discretion of the Grantee, provided that the Grantee notifies the City and Subscribers in writing thirty (30) days prior to any Channel additions, deletions or realignments unless otherwise permitted under applicable federal, State and local laws and regulations. Grantee shall cooperate with the City, and use best efforts to provide all Subscriber notices to the City prior to delivery to Subscribers. (C) Regulation of Service Rates. (1) The City may regulate rates for the provision of Cable Service, equipment, or any other communications service provided over the System to the extent allowed under federal or State law(s). The City reserves the right to regulate rates for any future services to the extent permitted by law. (2) The Grantee shall provide at least one billing cycle prior written notice (or such longer period as may be specified in FCC regulations) to Subscribers and to the City of any changes in rates, regardless of whether or not the Grantee believes the affected rates are subject to regulation, except to the extent such notice requirement is specifically waived by governing law. Bills must be clear, concise and understandable, with itemization of all charges. (D) Subscriber Contracts. Upon written request, the Grantee shall provide the City any standard form Subscriber contract utilized by the Grantee then in effect. If no such written contract exists, Grantee shall provide the City with a document completely and concisely stating the length and terms of the Subscriber contract offered to customers. The length and terms of any Subscriber contract(s) and current Subscriber rates and charges shall be available for public inspection at Grantee's offices during Normal Business Hours. 23 285 (E) Service Credit. (1) In the event a Subscriber establishes or terminates service and receives less than a full month's service, Grantee shall prorate the monthly rate on the basis of the number of days in the period for which service was rendered to the number of days in the billing cycle. (2) If, for any reason, Service is interrupted for more than twenty -four (24) consecutive hours in any thirty (30) day period, Subscribers shall be credited pro rata for such interruption upon notifying Grantee orally or in writing. (F) Refunds or Credits. (1) Any refund checks shall be issued promptly, but not later than either: (a) the Subscriber's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier; or (b) the return of the equipment supplied by the Grantee if Service is terminated. (2) Any credits for Cable Service shall be issued no later than the Subscriber's next billing cycle following the determination that a credit is warranted. (G) Late Fees. Fees for the late payment of bills shall not be assessed until after the Service has been fully provided and, as of the due date of the bill notifying Subscriber of an unpaid balance, the bill remains unpaid. The Grantee shall comply with all State and local consumer protection laws and regulations pertaining to late fees, and such fees shall not exceed any amount permitted by State or local law. (H) Notice to Subscribers. Subscriber notices shall comply with those FCC regulations then in effect and with the requirements set forth in Exhibit A. (I) Anticompetitive Acts Prohibited. The Grantee shall not engage in acts prohibited by federal or State law that have the purpose or effect of limiting competition for the provision of Cable Service or other multichannel video programming services in the City. (J) Office Availability and Drop Boxes. (1) The Grantee shall install, maintain and operate, throughout the term of this Franchise, a single staffed payment center with regular business hours in the City. The purpose of the payment center(s) shall be to receive Subscriber payments. All subscriber remittances at a payment center shall be posted to Subscribers' accounts within forty -eight (48) hours of remittance. Subscribers shall not be 24 286 charged a late fee or otherwise penalized for any failure by the Grantee to properly credit a Subscriber for a payment timely made. (2) The Grantee shall, at the request of a Subscriber, deliver or retrieve electronic equipment (e.g., Set Top Boxes and remote controls) to or from the Subscriber's premises. The rate(s) or charge(s) for such delivery or retrieval shall not exceed the amounts permitted by rate regulation rules and applicable law. (3) The Grantee shall provide Subscribers and the City with at least sixty (60) days' prior notice of any change in the location of the customer service center serving the City, which notice shall apprise Subscribers of the customer service center's new address, and the date the changeover will take place. SECTION 11.106 PEG ACCESS PROVISIONS (A) Public, Educational and Government Access Capacity on the System. (1) The City or its designee is hereby designated to operate, administer, promote, and manage PEG Access (public, educational, and governmental) programming and PEG Access Channels on the Cable System. The City may designate one (1) or more entities, including a non -profit access corporation or a municipal joint powers commission, to operate, manage, administer, promote and/or program any Public Access Channel, Governmental Access Channel or Educational Access Channel. As of the Effective Date, Independent School District #13 is designated to operate, manage, administer, promote and program any Educational Access Channel or Educational Access Channel capacity on the Cable System. The City may change the designation of a PEG Access manager at any time, in its sole discretion. (2) Within 120 days of Effective Date, the Grantee shall provide four (4) channels (the "Access Channels ") to be used for PEG access programming on the Basic Service Tier. The City has the sole discretion to designate the use of each Access Channel. Grantee shall provide a technically reliable path for upstream and downstream transmission of the Access Channels, which will in no way degrade the technical quality of the Access Channels, from an agreed upon demarcation point at the City's Master Control Center and from any other designated Access providers' locations, to Grantee's headend, on which all Access Channels shall be transported for distribution on Grantee's subscriber network. The Access Channels shall be delivered without degradation to subscribers in the technical format (e.g. HD or SD) as delivered by the City and any designated Access provider to Grantee at each demarcation point at City Hall and at the designated Access providers' locations. City agrees that Grantee shall be allowed to meet the obligations of this subsection by providing, free of charge and at no cost to the City, a direct fiber connection and necessary equipment to transmit PEG 25 287 programming from the City's designated and permanent location of its Master Control Center to the Grantees headend ( "PEG Origination Connection "). In the event Grantee is not able to obtain all of the PEG programming at the PEG Origination Connection, the Grantee agrees to undertake construction of direct connections and necessary equipment to each of the programming origination sites as identified on the effective date of this franchise, free of charge and at no cost to the City, within a reasonable period of time taking into consideration weather and related technical issues. The City will give Grantee written notice detailing the point of origination and the capability sought by the City. (i) All of the Access Channels will be made available through a multi- channel display (i.e. a picture in picture feed) on a single TV screen called a "mosaic" (the "Columbia Heights Mosaic "), where a cable subscriber can access via an interactive video menu one of any of the 4 Access Channels. The Columbia Heights Mosaic will be located on Channel 21. The 4 Access Channels will be located at Channels 8052 -8055. The Columbia Heights Mosaic will contain only Access Channels authorized by the City. (ii) Grantee will make available to the City the ability to place detailed scheduled Access Channel programming information on the interactive channel guide by putting the City in contact with the electronic programing guide vendor (" EPG provider ") that provides the guide service (currently Gracenote). Grantee will be responsible for providing the designations and instructions necessary to ensure the Access Channels will appear on the programming guide throughout the City and any necessary headend costs associated therewith. The City shall be responsible for providing programming information to the EPG provider. (iii) For purposes of this Franchise, the term channel shall be as commonly understood and is not any specific bandwidth amount. The signal quality of the Access Channels shall be the same as the local broadcast channels, provided such signal quality is delivered to Grantee at the Access Channels' respective demarcation points. (iv) Grantee will provide, at no cost to the City, air time on non- Access channels during periods in which ample unsold /unused air time on such channels exists for City public service announcements (PSAs). The City will provide a 30- second PSA prior to the start of each month on a mutually agreed -upon schedule. (v) In the event Grantee makes any change in the Cable System and related equipment and facilities or in its signal delivery technology, which requires the City to obtain new equipment in order to be compatible with such change for purposes of transport and delivery of the Access Channels to the Grantee's headend, Grantee shall, at its own expense and free of charge to the City, or its designated entities, purchase such equipment as may be necessary to facilitate the cablecasting of the Access Channels in accordance with the requirements of the Franchise. W 288 (vi) Neither the Grantee nor the officers, directors, or employees of the Grantee is liable for any penalties or damages arising from programming content not originating from or produced by the Grantee and shown on any public access channel, education access channel, government access channel, leased access channel, or regional channel. (vii) Within one hundred twenty (120) days of a written request from the City, Grantee shall make available as part of Basic Service to all Subscribers a PEG Access Video -on Demand (PEG -VOD) Service and maintain a PEG -VOD system. The PEG -VOD system shall be connected by the Grantee such that: (a) Twenty -five (25) hours of programming, or such greater amount as may be mutually agreed to by the parties, as designated and supplied by the City, or its Designated Access Provider to the Grantee may be electronically transmitted and /or transferred and stored on the PEG -VOD system; and (b) A database of that programming may be efficiently searched and a program requested and viewed over the PEG -VOD system by any Subscriber in the City; and (c) Programming submitted for placement on the PEG -VOD system, shall be placed on and available for viewing from the PEG -VOD system within forty -eight (48) hours of receipt of said programming; (d) The hardware and software described in subsection 11.106(2)(viii) below, shall be in all respects of the same or better technical quality as the hardware and software utilized by Grantee in the provision of any other video on demand services offered over the Cable System, and shall be upgraded at Grantee's cost, when new hardware or software is utilized on Grantee's Cable System for other video on demand services. Grantee shall provide reasonable technical assistance to allow for proper use and operation when encoding hardware or software is installed and /or upgraded at City's facilities. (viii) To ensure compatibility and interoperability, the Grantee shall supply and maintain all necessary hardware and software to encode, transmit and/or transfer Government Access programming from the City to the PEG -VOD system. The City shall be responsible for all monitoring of any equipment provided under this Section, and notifying Grantee of any problems. Grantee shall provide all technical support and maintenance for the equipment provided to the City by Grantee under this Section. After notification of any equipment problems, Grantee shall diagnose and resolve the problem within forty eight (48) hours. Major repairs which cannot be repaired within the forty eight (48) hour timeframe shall be completed within seven (7) days of notice, unless, due to Force Majeure conditions, a longer time is required. "Major repairs" are those that require equipment to be specially obtained in order to facilitate the repairs. The quality of signal and the quality of service obtained by a Subscriber utilizing the PEG -VOD 27 289 service shall meet or exceed the quality standards established for all other programming provided by the Grantee and as established elsewhere in this Franchise Agreement. (3) Grantee shall make available sufficient capacity on the System to deliver to Subscribers each PEG Channel signal as received, with no material degradation of quality, in accordance with this Section. The City or its designee(s) shall allocate the PEG Access Channels in its sole discretion. Grantee shall maintain one additional Channel in reserve for PEG use as of the Effective Date. The parties acknowledge that Grantee may use this Channel to provide commercial programming subject to reclamation by the City. The City may reclaim the loaned PEG Channel for PEG use in accordance with this Section. The City may rename, reprogram, or otherwise change the use of the PEG Channels in its sole discretion, provided such use is lawful, and retains the general purpose of the provision of PEG communications. The City may secure additional PEG Channel capacity pursuant to Minn. Stat. § 238.084, which is expressly incorporated herein by reference. The City shall provide ninety (90) days' prior written notice to the Grantee of the City's intent to activate an additional PEG Access Channel. (4) Any PEG Access Channel reassignment must be to a Channel that meets or exceeds the service and technical standards required by this Franchise. (5) PEG Channels must be made available to all Subscribers in the City, regardless of the tier of service subscribed to by the Subscriber. (6) In the event the Grantee makes any change in the System and related equipment and facilities or in signal delivery technology, which change directly or indirectly causes the signal quality or transmission of PEG Access Channel programming or PEG Access services to fall below the service quality or technical levels provided for in subsection 11.104(A)(1)(k), the Grantee shall, at its own expense, provide any necessary technical assistance, transmission equipment and training of PEG personnel, and in addition, provide necessary assistance so that PEG Access programming facilities may be used as intended, including, among other things, so that live and recorded programming can be produced, edited, encoded and transmitted efficiently to Subscribers and so that Subscribers receive PEG Access programming which has technical characteristics (e.g., picture quality and audio quality) that comply with the requirements set forth in this Section. (7) All PEG Channels shall be either transmitted in the same format as provided to Grantee, or Grantee shall bear the cost of converting the PEG Access Channels for carriage on its System. All PEG Access Channels shall be carried on the Basic Cable Service tier. Throughout the term of this Franchise, the Access Channels shall be provided to all subscribers regardless of the tier or package of Cable Service subscribed to by the Subscriber. 290 (B) Charges for Use. Channel time and playback of prerecorded programming on the PEG Access Channel(s) must be provided without charge to the City, PEG Access programmers and PEG Access managers. The Grantee shall also provide downstream transmission of the PEG Channels at no charge to the City, PEG Access programmers and PEG Access managers. (C) PEG Access Rules. The City may adopt reasonable rules and procedures regarding the use of PEG Channels pursuant to Section 611(d) of the Cable Communications Policy Act of 1984, as amended, 47 U.S.C. § 531(d), and Chapter 238 of Minnesota Statutes. The City may, in its sole discretion, delegate the authority to promulgate such rules to an entity managing a particular PEG Access Channel. The City shall have the sole authority to resolve any disputes regarding allocation or utilization of PEG Access Channels. (D) PEG Support Obligations. (1) Grantee will pay a monthly PEG Fee of $0.90 per subscriber per month until the franchise renews. The PEG Fee will be remitted to the City on a quarterly basis. The PEG Fee will be paid to the City at the same time as the Franchise Fee. Starting with the 2016 calendar year, the City may elect to increase this fee based on the incumbent's cable franchise PEG support obligation, or the Consumer Price Index. Any such election must be made in writing to the Franchisee no later than September 1st prior to the year in which the increase shall apply. In no event shall the monthly per subscriber fee be in an amount different from the incumbent cable provider. The PEG Fee may be used for operational or capital support of PEG programming. (2) In the event the payment required by subsection 11.106(D)(1) is not made on or before the required date, the Grantee shall pay, during the period such unpaid amount is owed, additional compensation and interest charges computed from such due date, at an annual rate of ten percent (10 %) or the maximum rate permitted by law. The Grantee waives any right to claim that any interest or penalties imposed hereunder constitute franchise fees within the meaning of 47 U.S.C. § 542. Failure to pay required the PEG Grant in a timely manner shall also be a material violation of this Franchise, subject to all sanctions and remedies herein, and the City may, at its discretion, declare this Franchise void and of no further force and effect. (3) The Grantee agrees that if it utilizes an electronic programming guide or visual interface under its control on its System for all Channels, the PEG Access Channels shall be clearly identified so that Subscribers will have ready access to all PEG Access Channels. 29 291 (4) If the incumbent franchised cable operator agrees to provide any support of the Access Channels in excess of the amount identified above or to any payment in support of any other PEG - related commitment after the Effective Date of this Franchise, the City, in its reasonable discretion, after meeting with the Grantee, will determine whether Grantee's PEG Fee should be changed. If Grantee is required to pay any additional PEG Fee, such amount must be based upon a per subscriber /per month fee. (E) Return Feeds From PEG Access Signal Origination Sites to the Grantee's Headend. (1) The Grantee shall provide without charge facilities and equipment so that PEG Access signals can be routed from the PEG origination sites onto an appropriate PEG Channel on the Cable System. Upstream transmission provided by the Grantee under this Section shall include all equipment and facilities necessary for amplification, optical conversion, receiving, transmitting, switching, and headend processing of upstream PEG signals from each PEG Access signal origination site. All such equipment, including but not limited to the electronics at each PEG Access signal origination site, shall be installed, repaired, and maintained in good working order by the Grantee on the Grantee's side of the point of interconnection, provided, however, that the Grantee shall not be responsible for the cost of repairing any damage caused by the owner or operator of the PEG Access signal origination site or its agents or invitees. The reasonably certain and quantifiable incremental costs of construction of such upstream PEG Access signal transmission facilities and of associated equipment may be recovered from Subscribers as a separate line item on Subscriber bills in any manner consistent with and to the extent permitted by applicable law. Any and all incremental costs incurred by Grantee under this paragraph may not be recovered or itemized on Subscribers' bills more than once. (2) The Grantee shall be responsible for ensuring that signals for each PEG Access Channel are correctly routed from each PEG access signal origination site on to the correct PEG Channel for distribution to Subscribers. (3) Every upstream feed provided pursuant to this Section shall ensure that the quality of PEG Access signals delivered to Subscribers shall meet the standards provided in this Section. (4) Grantee shall provide the aforementioned cabling, electronics, equipment, software and other materials at no cost to the City. This equipment shall include one (1) encoder for each Access Channel. (F) Backup Facilities and Equipment. Subject to subsection 11.106(E), the Grantee shall design, build and maintain all PEG upstream feeds, interconnection and distribution facilities so that such feeds function as reliably as the Grantee's Cable System as a whole within the City, and are no more likely to fail than is the Grantee's Cable System as a whole within the City. 30 292 (G) Editorial Control. Except as expressly permitted by federal law, the Grantee shall not exercise any editorial control over the content of programming on the designated PEG Channels (except for such programming as the Grantee may produce and cablecast on such Channels). (H) Regional Channel 6. The Grantee shall designate standard VHF Channel 6 for uniform regional Channel usage, to the extent required by applicable law. (I) Leased Access Channels. The Grantee shall provide leased access Channels as required by federal and State law. (J) PEG Obligations. Except as expressly provided in this Franchise, the Grantee shall not make any changes in PEG Access support or in the transmission, reception and carriage of PEG Access Channels and equipment associated therewith, without the prior consent of the City. (K) Costs and Payments Not Franchise Fees. The parties agree that any and all costs and expenses to the Grantee and payments from the Grantee associated with the provisions of Sections 11.106 and 11.107 of this Franchise are voluntary and cable- related, and are not intended to constitute and are not part of a franchise fee and fall within one or more of the exceptions to 47 U.S.C. § 542. SECTION 11.107 MUNICIPAL SERVICES (A) Twin Cities Metro PEG Interconnect Network. Grantee shall provide a discrete, non- public, video interconnect network, from an agreed upon demarcation point at the City's Master Control Center to Grantee's headend. The video interconnect network shall not exceed 50 Mbps of allocated bandwidth, allowing PEG operators that have agreed with Grantee to share (send and receive) live and recorded programming for playback on their respective systems. Where available the Grantee shall provide the video interconnect network and the network equipment necessary for the high - priority transport of live multicast HD /SD video streams as well as lower - priority file - sharing. Grantee shall provide 50 Mbps bandwidth for each participating PEG entity to send its original programming, receive at least two additional multicast HD /SD streams from any other participating PEG entity, and allow the transfer of files. Each participating PEG entity is responsible for encoding its own SD/HD content in suitable bit rates to be transported by the video interconnect network without exceeding the 50 Mbps of allocated bandwidth. (B) Cable Service to Public Buildings. Grantee shall, at no cost to the City, provide Basic Service and Expanded Basic Service (currently Prism Essentials) or equivalent package of Cable Service and necessary reception equipment to up to seven (7) outlets at City Hall and to each Independent School District at the current locations located in the City that originates PEG programming. Grantee shall, at no cost to the City, provide Basic Service and Expanded Basic Service (currently Prism Essentials) or equivalent package 31 293 of Cable Service and necessary reception equipment to up to three (3) outlets at all other government buildings, schools and public libraries located in the City where Grantee provides Cable Service, so long as these government addresses are designated as a Household and no other cable communications provider is providing complementary service at such location. For purposes of this subsection, "school" means all State - accredited K -12 public and private schools. Outlets of Basic and Expanded Basic Service provided in accordance with this subsection may be used to distribute Cable Services throughout such buildings; provided such distribution can be accomplished without causing Cable System disruption and general technical standards are maintained. Such outlets may only be used for lawful purposes. SECTION 11.108 OPERATION AND ADMINISTRATION PROVISIONS (A) Administration of Franchise. The City Manager or other designee shall have continuing regulatory jurisdiction and supervision over the System and the Grantee's operation under the Franchise. The City, or its designee, may issue such reasonable rules and regulations concerning the construction, operation and maintenance of the System as are consistent with the provisions of the Franchise and law. (B) Delegated Authority. The City may appoint a citizen advisory body or a Joint Powers Commission, or may delegate to any other body or Person authority to administer and enforce the Franchise and to monitor the performance of the Grantee pursuant to the Franchise. The Grantee shall cooperate with any such delegatee of the City. (C) Franchise Fee. (1) During the term of the Franchise, Grantee shall pay quarterly to the City a franchise fee in an amount equal to five percent (5 %) of its quarterly Gross Revenues, in a manner consistent with federal law, or such other amounts as are subsequently permitted by federal or State law. (2) Any payments due under this provision shall be payable quarterly. The payment shall be made within forty five (45) days of the end of each of Grantee's fiscal quarters together with a report showing the basis for the computation. The City shall have the right to require further supporting information for each franchise fee payment, which information shall be furnished directly to the City, subject to the confidentiality provisions of this Franchise, so long as such information is maintained in the ordinary course of business. In addition, the Grantee shall file with the City an annual report showing all Gross Revenues for the prior calendar year. This report shall be filed with the City within thirty (30) days of the end of each calendar year. (3) All amounts paid shall be subject to review or audit and recomputation by the City and acceptance of any payment shall not be construed as an accord that the 32 294 amount paid is in fact the correct amount. The Grantee shall be responsible for providing the City and /or its designee(s) all documents, records and certifications necessary to confirm the accurate payment of franchise fees, regardless of whether such documents and records are held by the Grantee, an Affiliate or any other agent of the Franchisee. The Grantee shall maintain such documents and records for five (5) years, unless in the Grantee's ordinary course of business specific records are retained for a shorter period, but in no event less than three (3) years. If an audit or review discloses an overpayment or underpayment of franchise fees, the City shall notify the Grantee of such overpayment or underpayment. The City's audit /review expenses shall be borne by the City unless the audit determines that the payment to the City should be increased by more than five percent (5 %) in the audited period, in which case the costs of the audit shall be borne by the Grantee as a cost incidental to the enforcement of the Franchise. Any additional amounts due to the City as a result of the audit or review shall be paid to the City within thirty (30) days following written notice to the Grantee by the City of the underpayment, which notice shall include a copy of the audit /review report. If the recomputation results in additional revenue to be paid to the City, such amount shall be subject to a ten percent (10 %) annual interest charge. If the audit or review determines that there has been an overpayment by the Grantee, the Grantee may credit any overpayment against its next quarterly franchise fee payment. (4) In the event any franchise fee payment or recomputation amount is not made on or before the required date, the Grantee shall pay, during the period such unpaid amount is owed, the additional compensation and interest charges computed from such due date, at an annual rate of ten percent (10 %). (5) Nothing in this Franchise shall be construed to limit any authority of the City to impose any tax, fee or assessment of general applicability. (6) The franchise fee payments required by this Franchise shall be in addition to any and all taxes or fees of general applicability and all direct or indirect PEG support costs, expenses and payments. The Grantee shall not have or make any claim for any deduction or other credit of all or any part of the amount of said franchise fee payments from or against any of said payments and taxes or fees of general applicability, except as expressly permitted by law. The Grantee shall not apply nor seek to apply all or any part of the amount of said franchise fee payments as a deduction or other credit from or against any of said payments, taxes or fees of general applicability, except as expressly permitted by law. Nor shall the Grantee apply or seek to apply all or any part of the amount of any of said costs, expenses and payments, and taxes or fees of general applicability as a deduction or other credit from or against any of its franchise fee obligations, except as expressly permitted by law. (D) Access to Records. The City, in its sole discretion, shall have the right to inspect, upon reasonable notice and during Normal Business Hours, or require the Grantee to provide 33 295 within a reasonable time, copies of any records maintained by Grantee or an Affiliate or subsidiary of the Grantee which relate to System operations including (but not limited to) the Grantee's accounting and financial records. (E) Reports and Maps to be Filed with the City. (1) The Grantee shall file with the City, at the time of payment of the franchise fee, a report of all Gross Revenues in substantially the form as attached as Exhibit B. (2) The Grantee shall prepare and furnish to the City, upon request, such information and data that are reasonably necessary for the City to enforce the terms and conditions of this Franchise and applicable law. The Grantee shall not be required to create new reports under this Section, but shall supply all requested data and information that are maintained in the ordinary course of business, regardless of format or form, in a manner that can be viewed by the City, subject to the confidentiality provisions of Section 11.108(H). (3) If required by the City, the Grantee shall make available to the City the maps, plats, and permanent records of those maps identifying the general location and character of Cable System facilities constructed, including underground facilities, and shall update said maps from time to time upon written request. In addition, the Grantee must promptly make available mapping information for any of its underground facilities in accordance with Minnesota Rules, Parts 7819.4000 and 7819.4100. (F) Periodic Evaluation. (1) The City may require evaluation sessions at any time during the term of this Franchise, upon fifteen (15) days' written notice to the Grantee. (2) Topics which may be discussed at any evaluation session may include, but are not limited to, application of new technologies, System performance, programming offered, PEG Access Channel capacity, facilities and support, municipal uses of cable, Subscriber rates, customer complaints, amendments to this Franchise, judicial rulings, FCC rulings, line extension policies and any other topics the City deems relevant. (3) Nothing in this Section shall require the change or modification of any provision of this Franchise, except as may be agreed to in writing by the Grantee and the City. (G) Review of PEG Cost Recovery. The City may review the Grantee's pass- through and recovery of PEG - related costs and expenses included in any line item on Subscribers' bills and /or in the Grantee's rate base. Subject to the confidentiality provisions of this Franchise, the Grantee shall be responsible for providing the City and /or its designee(s) all documents, records and certifications maintained in the ordinary course of business and 34 296 necessary to confirm the accurate pass- through and recovery of PEG - related costs incorporated in its rate base and /or itemized on Subscriber billing statements, regardless of whether such documents and records are held by the Grantee, an Affiliate or any other agent of the Grantee. The Grantee shall maintain such documents and records for five (5) years, unless in the Grantee's ordinary course of business specific records are retained for a shorter period, but in no event less than three (3) years. If a review discloses an over - recovery of PEG - related costs, the City shall notify the Grantee of such over - recovery and may order Subscriber refunds. Any refunds owed to Subscribers shall be made by Grantee within ninety (90) calendar days of receiving an order from the City, or such other time period as may be provided for in applicable laws or regulations. (H) Confidential Treatment of Certain Information Furnished by Grantee Pursuant to this Franchise. The Grantee shall provide books, documents, information and records to the City, and /or its agents, in accordance with the terms of this Franchise; provided, however, that requested books, documents, information and records that are confidential or proprietary may be disclosed to the City and /or its agents pursuant to a non - disclosure agreement, an example of which is attached hereto as Exhibit C, whereby the information required to be disclosed under this Franchise will be provided for a specific purpose defined in the non - disclosure agreement. The intent of the parties is to work cooperatively to insure that those books, documents, information and records necessary for the City's monitoring, administration and enforcement of Franchise obligations are provided to the City, and /or its agents, or made available for review. If the Grantee requests that the City and /or its agents review particular books, documents, information and /or records at Grantee's offices, and the City or its agents agree, in their sole discretion, then the Grantee shall pay all actual costs incurred by the City and /or its representative(s) in traveling to Grantee's offices and reviewing and analyzing requested documents, books, records and /or information. To the extent that Grantee furnishes documents, books, information and /or records directly to the City, City officials agree to protect any proprietary or confidential books or records, in accordance with the terms of an executed non - disclosure agreement substantially in the form attached hereto as Exhibit C, to the extent permitted by law or by any applicable State or federal order or decision. The Grantee shall be responsible for clearly and conspicuously identifying and marking confidential or proprietary documents, books, records and information as "confidential" or "proprietary" consistent with the terms of an executed non - disclosure agreement. If the City receives a lawful demand from any Person for disclosure of any information properly and lawfully designated by the Grantee as confidential or proprietary pursuant to an enforceable non - disclosure agreement then in effect, the City shall, so far as consistent with applicable law, advise the Grantee and provide the Grantee with a copy of any written request by the party demanding access to such information within a reasonable time. If the Grantee believes that the disclosure of such documents by the City would cause irreparable harm to the Grantee's rights under federal or State law, the Grantee may institute an action in Anoka County State District Court or a Federal Court of competent jurisdiction in Minnesota to prevent the disclosure by the City of such documents. The Grantee shall join the Person requesting the documents to such an action. The Grantee shall defend, indemnify and hold the City harmless from any claim or judgment as well as any costs, expenses, damages, penalties and attorney's fees incurred in participating in any such proceeding. The Grantee shall WR 297 also make arrangements for the return of confidential or proprietary information to the Grantee's designated offices at Grantee's sole expense, unless otherwise agreed to in writing by the parties. SECTION 11.109 GENERAL FINANCIAL AND INSURANCE PROVISIONS (A) Letter of Credit. (1) Within 30 days of the Effective Date of this Franchise, the Grantee shall deliver to the City an irrevocable and unconditional Letter of Credit, effective on the Effective Date, in a form and substance acceptable to the City, from a National or State bank approved by the City, in the amount of $25,000.00, and maintain such Letter of Credit for the duration of this Franchise, and any extension(s) thereof. The Letter of Credit shall provide that funds will be paid to the City, upon written demand of the City, and in an amount solely determined by City in payment for any monies, fees and /or taxes owed by the Grantee to the City or any Person pursuant to its obligations under this Franchise, or in payment for any damage incurred by the City, or any Person as a result of any acts or omissions by the Grantee pursuant to this Franchise. (2) If the Grantee fails to make timely payment to the City of any amount due under this Franchise or applicable law, the City may, after ten (10) business days written notice to the Grantee, make a claim against the Letter of Credit for the amount due, with interest and any applicable penalties. (3) If the City determines that the Grantee is in default of any provision of this Franchise which is subject to liquidated damages pursuant to subsection (B) below, and determines that the collection of liquidated damages is appropriate, upon ten (10) days' written notice to the Grantee, the City may make a claim against the Letter of Credit for the amount of the liquidated damages. (B) Liquidated Damages. (1) Because it may be difficult to calculate the harm to the City in the event of a breach of this Franchise by Grantee, the parties agree to liquidated damages as a reasonable estimation of the actual damages. To the extent that the City elects to assess liquidated damages as provided in this Franchise and such liquidated damages have been paid, such damages shall be the City's sole and exclusive remedy for time period that liquidated damages have been assessed and collected by the City. Nothing in this Section is intended to preclude the City from exercising any other legal or equitable right or remedy with respect to a breach that continues past the time the City stops assessing liquidated damages for such breach. we 298 (2) Prior to assessing any liquidated damages, the City shall mail to the Grantee a written notice by certified or registered mail of the alleged violation(s) and the proposed liquidated damages, specifying the violation(s) at issue. The Grantee shall have thirty (30) days from the date of receipt of the written notice to cure or commence to cure, as is appropriate depending on the nature of the alleged violation, or to file a written response refuting the alleged violation or explaining why additional time for cure is necessary. In the case of breaches of requirements measured on a monthly, quarterly or longer period (such as customer service standards), Grantee's cure period shall be no less than one such period. (3) The City may not assess any liquidated damages if the Grantee has reasonably responded to the City's written notice of violation or cured or commenced to cure, as may be appropriate, a violation within a reasonable time frame not to exceed thirty (30) days following receipt of written notice from the City, unless some other cure period is approved by the City. In the event Grantee fails to cure or commence to cure, or fails to refute the alleged breach, the City may assess liquidated damages and shall inform Grantee in writing of the assessment. Grantee shall have thirty (30) days to pay the damages. (4) The first day for which liquidated damages may be assessed, if there has been no cure after the end of the applicable cure period, shall be the day after the end of the applicable cure period, including any extension of the cure period granted by the City. (5) The Grantee may appeal (by pursuing judicial relief or other relief afforded by the City) any assessment of liquidated damages within thirty (30) days of receiving written notice of the assessment. The Grantee's obligation to pay the liquidated damages assessed shall be stayed pending resolution of the appeal. (6) In no event may liquidated damages be assessed for a time period exceeding one hundred twenty (120) days. If after that amount of time the Grantee has not cured or commenced to cure the alleged breach to the satisfaction of the City, the City may pursue all other remedies at law or in equity. (7) Liquidated damages shall be as follows: (a) For failure to timely complete construction as provided in this Franchise or any side agreement, unless the City approves the delay, the damages shall be $250.00 per day for each day, or part thereof, such failure occurs or continues. (b) For failure to provide data, records, documents, reports or information or to cooperate with the City during an application process or System review or as otherwise provided herein, the liquidate damages shall be $150.00 per day for each day, or part thereof, such failure occurs or continues. 37 299 (c) For failure of the Grantee to comply with construction, operation or maintenance standards, the penalty shall be $150.00 per day for each day, or part thereof, such failure occurs or continues. (d) For failure to provide the services, equipment, facilities and payments required by this Franchise, including, but not limited to, the implementation and the utilization of the PEG Channels /capacity and the provision of PEG payments, the liquidated damages shall be $250.00 per day for each day, or part thereof, such failure occurs or continues. (e) For Grantee's material breach of any written contract or agreement with or to the City or its designee, the liquidated damages shall be $250.00 per day for each day, or part thereof, such breach occurs or continues, unless such breach is addressed by Section 11.109(B)(7)(a). (f) For failure to comply with any of the material provisions of this Franchise, customer service standards or City ordinance or regulation for which liquidated damages are not otherwise specifically provided pursuant to this paragraph 11.109(B)(7), the liquidated damages shall be 150.00 per day for each day, or part thereof, such failure occurs or continues. (g) For failure to comply with the reasonable build -out provisions and for economic redlining in violation of Section 11.102(G) and 11.111 and 47 U.S.C. § 541(a)(3): Five Hundred dollars ($500) per day for each day or part thereof that such violation continues. (8) Each violation of any provision of this Franchise shall be considered a separate violation for which separate liquidated damages can be imposed; provided, however, Grantee will not be charged more than one penalty provision for each separate violation. (9) In the event that Grantee fails to pay liquidated damages pursuant to the provisions of Section 11.109(B)(7), the City may draw upon the Letter of Credit or any subsequent Letter of Credit delivered pursuant hereto, in whole or in part. If the City is obliged to draw upon the Letter of Credit, and the obligation to pay is not stayed pursuant to Section 111.109(B)(5), the Grantee shall replace or replenish to its full amount the same within ten (10) days and shall deliver to the City a like replacement Letter of Credit or certification of replenishment for the full amount stated in Section 11.109(A)(1) as a substitution of the previous Letter of Credit. This shall be a continuing obligation for any withdrawals from the Letter of Credit. (10) The collection by the City of any damages, monies, fees, or taxes from the Letter of Credit shall not affect any other right or remedy available to the City, nor shall any act, or failure to act, by the City pursuant to the Letter of Credit, be deemed a waiver of any right of the City pursuant to this Franchise or otherwise, including 300 (C) (but not limited to) its right to recover from the Grantee any additional damages, losses, costs and expenses that are incurred by the City by reason of the Grantee's breach of this Franchise once the initial 120 -day period for assessing liquidated damages has expired. Alternative Remedies. (1) No provision of this Franchise shall be deemed to bar the right of either party to seek or obtain judicial relief from a violation of any provision of this Franchise, applicable law or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in this Franchise or applicable law nor the exercise thereof shall be deemed to bar or otherwise limit the right of either party to recover monetary damages, as allowed under applicable law, or to seek and obtain judicial enforcement of obligations by means of specific performance, injunctive relief or mandate, or any other remedy at law or in equity. (2) The City specifically does not, by any provision of this Franchise, waive any right, immunity, limitation, defense or protection (including complete damage immunity) otherwise available to the City and its officers, elected and appointed officials, boards, commissions, agents, or employees under federal, State, or local law including by example, but not limitation, Section 635A of the Cable Act. The Grantee shall not have any monetary recourse against the City, or its officers, elected and appointed officials, boards, commissions, agents or employees for any loss, costs, expenses or damages arising out of any provision or requirement of this Franchise or the enforcement or non - enforcement thereof, subject to applicable law. (D) Indemnification of City. (1) The City, its officers, boards, committees, commissions, elected and appointed officials, employees, volunteers and agents shall not be liable for any loss or damage to any real or personal property of any Person, or for any injury to or death of any Person, arising out of or in connection with the Grantee's construction, operation, maintenance, repair or removal of the System or as to any other action of the Grantee with respect to this Franchise. (2) The Grantee shall indemnify, defend, and hold harmless the City, its officers, boards, committees, commissions, elected and appointed officials, employees, volunteers and agents, from and against all claims, suits, causes of action, proceedings and judgments, and all liability, damages, fees, costs, and penalties arising therefrom, which they may legally be required to pay as a result of the City's award, exercise, administration, or enforcement of the Franchise or the Grantee's installation, construction, operation and /or maintenance of the System. Wt 301 (3) Nothing in this Franchise relieves a Person from liability arising out of the failure to exercise reasonable care to avoid injuring the Grantee's facilities while performing work connected with grading, regrading, or changing the line of a Right -of -Way or public place or with the construction or reconstruction of a sewer or water system. (4) Grantee shall contemporaneously with this Franchise execute an Indemnity Agreement in the form of Exhibit D, which shall indemnify, defend and hold the City harmless for any claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and reasonable attorneys' fees or reasonable expenses arising out of the actions of the City in granting this Franchise. This obligation includes any claims by another franchised cable operator against the City that the terms and conditions of this Franchise are less burdensome than another franchise granted by the city or that this Franchise does not satisfy the requirements of applicable state law(s). (E) Insurance. (1) As a part of the indemnification provided in Section 11.109(D), but without limiting the foregoing, Grantee shall file with the City at the time of its acceptance of this Franchise, and at all times thereafter maintain in full force and effect at its sole expense, a comprehensive general liability insurance policy, including broadcaster's /cablecaster's liability, copyright and trademark liability, and contractual liability coverage, in protection of the Grantee, the City, and its officers, elected and appointed officials, boards, commissions, agents, volunteers and employees for any and all damages, losses, costs, fees and penalties which may arise as a result of this Franchise. The policy or policies shall name the City as an additional insured, and in their capacity as such, City officers, elected and appointed officials, boards, commissions, commissioners, agents, volunteers and employees. (2) The policies of insurance shall be in the sum of not less than $1,000,000.00 for personal injury or death of any one Person, and $2,000,000.00 for personal injury or death of two or more Persons in any one occurrence, $1,000,000.00 for property damage to any one person and $2,000,000.00 for property damage resulting from any one act or occurrence. (3) The policy or policies of insurance shall be maintained by the Grantee in full force and effect during the entire term of the Franchise, and any extension(s) thereof. Each policy of insurance shall contain a statement on its face that the insurer will not cancel the policy or fail to renew the policy, whether for nonpayment of premium, or otherwise, and whether at the request of the Grantee or for other reasons, except after sixty (60) days' advance written notice have been provided to the City. The Grantee shall not cancel any required insurance policy without submission of proof that the Grantee has obtained alternative insurance satisfactory to the City which complies with this Franchise. .o 302 (4) All insurance policies shall be with sureties qualified to do business in the State, with an A- or better rating of insurance by Best's Key Rating Guide, Property /Casualty Edition, and shall be subject to approval by the City or its designee. (5) All insurance policies shall be available for review by the City and the Grantee shall keep on file with the City certificates of insurance. (6) Failure to comply with the insurance requirements of this Section shall constitute a material violation of this Franchise. SECTION 11.110 SALE, ABANDONMENT, TRANSFER AND REVOCATION OF FRANCHISE (A) City's Right to Revoke. (1) In addition to all other rights which the City has pursuant to law or equity, the City reserves the right to commence proceedings to revoke, terminate or cancel this Franchise, and all rights and privileges pertaining thereto, if it is determined by the City that: (a) the Grantee has violated material provisions(s) of this Franchise; or (b) the Grantee has attempted to evade any of the provisions of the Franchise; or (c) the Grantee has practiced fraud or deceit upon the City or Subscribers. The City may revoke this Franchise without the hearing required by Section 11.110(B)(2) herein if the Grantee is adjudged a bankrupt. (B) Procedures for Revocation. (1) The City shall provide the Grantee with written notice of a cause for revocation and the intent to revoke and shall allow the Grantee sixty (60) days subsequent to receipt of the notice in which to correct the violation or to provide adequate assurance of performance in compliance with the Franchise. In the notice required herein, the City shall provide the Grantee with the basis of the revocation. (2) The Grantee shall be provided the right to a public hearing affording due process before the City Council prior to the effective date of revocation, which public hearing shall follow the sixty (60) day notice provided in subsection 11.110(B)(1) above. The City shall provide the Grantee with written notice of its decision together with written findings of fact supplementing said decision. 41 303 (3) Only after the public hearing and upon written notice of the determination by the City to revoke the Franchise may the Grantee appeal said decision with an appropriate state or federal court or agency. (4) During the appeal period, the Franchise shall remain in full force and effect unless the term thereof sooner expires or unless continuation of the Franchise would endanger the health, safety and welfare of any Person or the public. (C) Abandonment of Service. The Grantee may not abandon the System or any portion thereof without having first given three (3) months' written notice to the City. The Grantee may not abandon the System or any portion thereof without compensating the City for damages resulting from the abandonment, including all costs incident to removal of the System if required by the City pursuant to Section 11.110(D). (D) Removal After Abandonment, Termination or Forfeiture. (1) In the event of termination or forfeiture of the Franchise or abandonment of the System, the City shall have the right to require the Grantee to remove all or any portion of the System from all Rights -of -Way and public property within the City, unless the Grantee is permitted to utilize the entire System and occupy the Rights - of -Way pursuant to a lawful and valid authorization in effect as of the date of termination or forfeiture. (2) If the Grantee has failed to commence removal of the System, or such part thereof as was designated by City, within thirty (30) days after written notice of the City's demand for removal is given, or if the Grantee has failed to complete such removal within twelve (12) months after written notice of the City's demand for removal is given, the City shall have the right to apply funds secured by the Letter of Credit and Performance Bond toward removal and/or declare all right, title, and interest to the System, or portion thereof, to be in the City with all rights of ownership including, but not limited to, the right to operate the System, or portion thereof, or transfer the System to another for operation by it. (E) Sale or Transfer of Franchise. (1) No sale or transfer of the Franchise, or sale, transfer, or fundamental corporate change of or in the Grantee, including, but not limited to, a fundamental corporate change in the Grantee's parent corporation or any entity having a controlling interest in the Grantee, the sale of a controlling interest in the Grantee's assets, a merger including the merger of a subsidiary and parent entity, consolidation, or the creation of a subsidiary or affiliate entity, shall take place until a written request has been filed with the City requesting approval of the sale, transfer, or corporate change and such approval has been granted or deemed granted, provided, however, that said approval shall not be required where the Grantee grants a security interest in its Franchise and/or assets to secure an indebtedness; subject to the foregoing provisions, upon notice to the City, Grantee may 42 304 undertake legal changes necessary to consolidate the corporate or partnership structure of Grantee provided there is no change in the controlling interests of Grantee or any corporate affiliate; provided, however, Grantee must seek approval of any transaction constituting a transfer under state law. Approval of a transfer or sale request that is subject to this Section 11.110(E) shall not be unreasonably withheld. (2) Any sale, transfer, exchange or assignment of stock in the Grantee, or Grantee's parent corporation or any other entity having a controlling interest in the Grantee, so as to create a new controlling interest therein, shall be subject to the requirements of this Section 11.110(E). The term "controlling interest" as used herein is not limited to majority stock ownership, but includes actual working control in whatever manner exercised. (3) The Grantee shall file all documents, forms and information required to be filed by applicable law. (4) The City or its designee shall have such time as is pennitted by federal law in which to review a transfer request. (5) The parties acknowledge and agree that incidental costs and fees and any other lawful fees and costs associated with reviewing and /or acting on a Franchise transfer, sale or transfer of the Grantee or the System, a fundamental corporate change or change of control may be required in an amount to be established by resolution of the City Council, to the extent consistent with applicable law. (6) In no event shall a sale, transfer, corporate change, or assignment of ownership or control pursuant to subsection (1) or (2) of this Section be approved without the Grantee remaining, or (if other than the current Grantee) the transferee becoming a signatory to this Franchise and assuming or continuing to have all rights and obligations hereunder. (7) In the event of any proposed sale, transfer, corporate change, or assignment pursuant to subsection (1) or (2) of this Section, the City shall have the right to purchase the System for the value of the consideration proposed in such transaction to the extent provided State law. The City's right to purchase shall arise upon the City's receipt of notice of the material terms of an offer or proposal for sale, transfer, corporate change, or assignment, which the Grantee has accepted. Notice of such offer or proposal must be conveyed to the City in writing and be separate from any general announcement of the transaction. (8) The City shall be deemed to have waived its right to purchase the System pursuant to this Section only in the following circumstances: (a) If the City does not indicate to Grantee in writing, within sixty (60) days of receipt of written notice of a proposed sale, transfer, corporate change, 43 305 or assignment as contemplated in Section 11.110(E)(7) above, its intention to exercise its right of purchase; or (b) It approves the assignment or sale of the Franchise as provided within this Section. (9) No Franchise may be transferred if the City determines the Grantee is in noncompliance of the Franchise unless an acceptable compliance program has been approved by the City. The approval of any transfer of ownership pursuant to this Section shall not be deemed to waive any rights of the City to subsequently enforce noncompliance issues relating to this Franchise even if such issues predated the approval, whether known or unknown to the City. (10) Any transfer or sale of the Franchise without the prior written consent of the City shall be considered to impair the City's assurance of due performance. The granting of approval for a transfer or sale in one instance shall not render unnecessary approval of any subsequent sale or transfer for which approval would otherwise be required. SECTION 11.111 PROTECTION OF INDIVIDUAL RIGHTS (A) Discriminatory Practices Prohibited. The Grantee shall not deny service, deny access, or otherwise discriminate against Subscribers (or group of potential subscribers) or general citizens on the basis of race, color, religion, national origin, sex, age, status as to public assistance, affectional preference, or disability. The Grantee shall comply at all times with all other applicable federal, State, and City laws, and all executive and administrative orders relating to nondiscrimination. (B) Subscriber Privacy. The Grantee shall at all times comply with federal and State laws governing Subscriber privacy, including, but not limited to, Minn. Stat. § 238.084, Subd. 1(s). SECTION 11.112 UNAUTHORIZED CONNECTIONS AND MODIFICATIONS (A) Unauthorized Connections or Modifications Prohibited. It shall be unlawful for any firm, Person, group, company, corporation, or governmental body or agency, without the express consent of the Grantee, to make or possess, or assist anybody in making or possessing, any unauthorized connection, extension, or division, whether physically, acoustically, inductively, electronically or otherwise, with or to any segment of the System or receive services of the System without the Grantee's authorization. .. 306 (B) Removal or Destruction Prohibited. It shall be unlawful for any firm, Person, group, company, or corporation to willfully interfere, tamper, remove, obstruct, or damage, or assist thereof, any part or segment of the System for any purpose whatsoever, except for any rights the City may have pursuant to this Franchise or its police powers. SECTION 11.113 MISCELLANEOUS PROVISIONS (A) Franchise Renewal. Any renewal of this Franchise shall be performed in accordance with applicable federal, State and local laws and regulations. The term of any renewed Franchise shall be limited to a period not to exceed fifteen (15) years. (B) Work Performed by Others. Grantee shall ensure that all applicable obligations of this Franchise are adhered to with regard to work performed by any subcontractor, or others performing any work or services pursuant to the provisions of this Franchise; however, in no event shall any such subcontractor or other Person performing work obtain any rights to maintain and operate a System or provide Cable Service. Upon request, the Grantee shall provide notice to the City of the name(s) and address(es) of any entity, other than the Grantee, which performs substantial services pursuant to this Franchise. (C) Amendment of Franchise Ordinance. The Grantee and the City may agree, from time to time, to amend this Franchise by a written instrument executed by the City and the Grantee. Such written amendments may be made subsequent to a review session pursuant to Section 11.108(F) or at any other time if the City and the Grantee agree that such an amendment will be in the public interest or if such an amendment is required due to changes in federal, State or local laws. Provided, however, nothing herein shall restrict the City's exercise of its police powers to the extent permitted by law. (D) Compliance with Federal, State and Local Laws. (1) If any federal or State law or regulation shall require or permit the City or the Grantee to perform any service or act or shall prohibit the City or the Grantee from performing any service or act which may be in conflict with the terms of this Franchise, then as soon as possible following knowledge thereof, either party shall notify the other of the point in conflict believed to exist between such law or regulation. The Grantee and the City shall conform to State laws and rules regarding cable communications not later than one year after they become effective, unless otherwise stated, and to conform to federal laws and regulations regarding cable as they become effective. (2) The Grantee and the City agree that the terms and conditions of this Franchise are not severable. 45 307 (3) The Grantee shall, at all times during the term of this Franchise, including all extensions or renewals hereof, comply with applicable federal, State and local laws and regulations. (E) Nonenforcement by City. The Grantee shall not be relieved of its obligations to comply with any of the provisions of this Franchise by reason of any failure or delay of the City to enforce prompt compliance. The City may only waive its rights hereunder by expressly so stating in writing. Any such written waiver by the City of a breach or violation of any provision of this Franchise shall not operate as or be construed to be a waiver of any subsequent breach or violation. (F) Rights Cumulative. All rights and remedies given to the City by this Franchise or retained by the City herein shall be in addition to and cumulative with any and all other rights and remedies, existing or implied, now or hereafter available to the City at law or in equity, and such rights and remedies shall not be exclusive, but each and every right and remedy specifically given by this Franchise or otherwise existing or given may be exercised from time to time and as often and in such order as may be deemed expedient by the City and the exercise of one or more rights or remedies shall not be deemed a waiver of the right to exercise at the same time or thereafter any other right or remedy. (G) Grantee Acknowledgment of Validity of Franchise. The Grantee acknowledges that it has had an opportunity to review the terms and conditions of this Franchise and that under current law the Grantee believes that said terms and conditions are not unreasonable, unlawful or arbitrary, and that the Grantee believes the City has the power to make the terms and conditions contained in this Franchise. (H) Governing Law. This Franchise shall be governed in all respects by the laws of the State of Minnesota. (I) Force Majeure. The Grantee shall not be deemed in default of provisions of this Franchise or the City Code where performance was rendered impossible by war or riots, labor strikes or civil disturbances, floods or other causes beyond the Grantee's control, and the Franchise shall not be revoked or the Grantee penalized for such noncompliance, provided that the Grantee, when possible, takes immediate and diligent steps to bring itself back into compliance and to comply as soon as possible, under the circumstances, with the Franchise without unduly endangering the health, safety and integrity of the Grantee's employees or property, or the health, safety and integrity of the public, the Rights -of -Way, public property or private property. (J) Rights of Third Parties. This Franchise is not intended to, and shall not be construed to, grant any rights to or vest any rights in third parties, unless expressly provided herein. (K) Captions and Headings. The captions and headings of sections throughout this Franchise are intended solely to facilitate reading and reference to the sections and provisions of this Franchise. Such captions shall not affect the meaning or interpretation of this Franchise. When any provision of the City Code is expressly mentioned herein, such .e 308 reference shall not be construed to limit the applicability of any other provision of the City Code that may also govern the particular matter in question. (L) Merger of Documents. This Franchise, and the attachments hereto, constitute the entire Franchise agreement between the City and the Grantee, and supersede all prior oral or written franchises, drafts and understandings. SECTION 11.114 PUBLICATION; EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS (A) Publication; Effective Date. This Franchise shall be published in accordance with applicable local and Minnesota law. (B) Acceptance. (1) The Grantee shall voluntarily accept this Franchise within thirty (30) days of its adoption by the City Council, unless the time for acceptance is extended by the City. Such acceptance by the Grantee shall be deemed the grant of this Franchise for all purposes; provided, however, this Franchise shall not be effective until all City ordinance adoption procedures are complied with and all applicable timelines have run for the adoption of a City ordinance. In the event acceptance does not take place or does not take place in a timely manner, or should all ordinance adoption procedures and timelines not be completed, this Franchise and any and all rights granted hereunder to the Grantee shall be null and void. (2) Upon acceptance of this Franchise, the Grantee and the City shall be bound by all the terms and conditions contained herein and in the Charter of the City of Columbia Heights. Specifically, the Grantee agrees that: (a) this Franchise is not inconsistent with applicable laws and regulations at the time it is executed; (b) it shall be subject to and will perform on its part all of the terms of Sections 94 -102, inclusive, of the Charter of the City of Columbia Heights; (c) it shall not issue any capital stock on account of the Franchise or the value thereof, and that the Grantee shall have no right to receive, upon condemnation proceedings brought by the City to acquire the public utility exercising such Franchise, any return on account of the Franchise or its value; (d) notwithstanding anything to the contrary herein, no sale or lease of this Franchise shall be active until the assignee or lessee hall have filed in the office of the City Clerk an instrument, duly executed, reciting the fact of 47 309 such sale or lease, accepting the terms of the Franchise, and agreeing to perform all the conditions required of the Grantee hereunder; (e) notwithstanding anything to the contrary herein, and subject to State laws and regulations, every grant of permission contained in this Franchise for the erection of poles, masts, or other fixtures in the Rights -of -Way and for the attachment of wires thereto, or for the laying of tracks in, or of pipes or conduits, under places of any permanent or semi- permanent fixtures whatsoever, shall be subject to the condition that the City Council shall have the power to require such alternations therein, or relocation or rerouting thereof, as the City Council may at any time deem necessary for safety, health, or convenience of the public, and particularly that it shall have the power to require the removal of poles, masts and other fixtures bearing wires and the placing underground of poles, masts, and of other fixtures bearing wires and the placing underground of all wires for whatsoever purpose used; and (f) acceptance of this Franchise, and every extension or renewal hereof, in writing by the Grantee within thirty (30) days after its passage by the City Council and before its submission to the vote of the people in the case of a referendum. No such Franchise shall be binding upon the City until its acceptance by the Grantee. Such acceptance shall be construed to be an acceptance of and consent to all the terms, conditions and limitations contained in the ordinance granting this Franchise as well as of the provisions of the Charter of the City of Columbia Heights. (3) The Grantee shall accept this Franchise in the following manner: (a) This Franchise will be properly executed and acknowledged by the Grantee and delivered to the City. (b) With its acceptance, unless otherwise stated in the Franchise, the Grantee shall also deliver any payments, performance bond, letter of credit and insurance certificates required herein that have not previously been delivered. (4) This Franchise shall bind and benefit the parties hereto and their respective authorized heirs, beneficiaries, administrators, executors, receivers, trustees, successors and assigns. Passed and adopted this 11'x' day of January, 2016. This ordinance shall be in full force and effect from and after thirty (30) days after its passage. First Reading: December 14, 2015 Second Reading: January 11, 2016 310 Date of Passage: Offered by: Seconded by: Roll Call: Mayor Gary L. Peterson Attest: Katie Bruno, City Clerk ACCEPTED: This Franchise is accepted and we agree to be bound by its terms and conditions. Dated: .J QWEST BROADBAND SERVICES, INC., DBA CENTURYLINK By: _ Its: 311 EXHIBIT A CUSTOMER SERVICE REQUIREMENTS (1) The Grantee shall have a publicly listed toll -free telephone number which shall be operated so as to receive public and Subscriber complaints and requests on a twenty -four (24) hour -a -day, seven (7) days -a -week, 365 days -a -year basis. During Normal Business Hours, trained representatives of Grantee shall be available to respond to Subscriber inquiries. (2) The Grantee shall maintain adequate numbers of telephone lines and personnel to respond in a timely manner to schedule service calls and answer Subscriber complaints or inquiries in a manner consistent with laws and regulations adopted by the FCC and/or the City where applicable and lawful. Under Normal Operating Conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no less than ninety (90) percent of the time under Normal Operating Conditions, measured on a quarterly basis. Under Normal Operating Conditions, the customer will receive a busy signal less than three (3) percent of the time. The Grantee shall respond to written complaints with a copy to the City or its designee within thirty (30) days, and upon request provide a copy to the City, subject to applicable State and Federal law, including but not limited to, consumer privacy. (3) Excluding conditions beyond the control of the Grantee, the Grantee shall commence working on a service interruption within twenty -four (24) hours after the service interruption becomes known and pursue to conclusion all steps reasonably necessary to correct the interruption. The Grantee must begin actions to correct other service problems the next business day after notification of the service problem, and pursue to conclusion all steps reasonably necessary to correct the problem. (4) Except as provided in paragraph (3), the Grantee shall schedule appointments for Installations and other service calls either at a specific time or, at a maximum, during a four hour time block to commence not later than 8:00 a.m. and end not earlier than 7:00 p.m. and may also schedule service calls outside such hours for the convenience of customers. The Grantee shall use its best efforts to not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment. If the installer or technician is late and will not meet the specified appointment time, he /she must use his/her best efforts to contact the customer and reschedule the appointment at the sole convenience of the customer. Service call appointments must be met in a manner consistent with FCC standards. (5) Subject to the Grantee's obligations pursuant to law regarding privacy of certain information, the Grantee shall prepare and maintain written records of all complaints made to the City regarding Grantee's service, and provided to Grantee, and the resolution of such complaints, including the date of such resolution. Such written records shall be on file at the local office of Grantee. The Grantee shall provide the City with a written summary of such complaints and their resolution upon request of the City. As to Subscriber complaints, the Grantee shall comply with FCC record - keeping regulations, and make the results of such record - keeping available to the City upon request. 312 (6) The Grantee shall respond to written complaints from the City in a timely manner, and provide a copy of each response to the City within thirty (30) days. In addition, the Grantee shall respond to all written complaints from Subscribers within (30) days of receipt of the complaint. (7) The Grantee shall provide each Subscriber at the time Cable Service is installed, and at least every twelve (12) months thereafter, the following materials: (a) Instructions on how to use the Cable Service; (b) Billing and complaint procedures, and written instructions for placing a service call, filing a complaint or requesting an adjustment (including when a Subscriber is entitled to refunds for outages and how to obtain them); (c) A schedule of rates and charges, Channel positions and a description of products and services offered; (d) Prices and options for programming services and conditions of subscription to programming and other services; and (e) A description of the Grantee's Installation, Service, maintenance and arbitration policies, Subscriber privacy rights, and privacy rights (only at Installation of such service), delinquent Subscriber disconnect and reconnect procedures and any other of its policies applicable to Subscribers. (8) Copies of materials specified in paragraph (7) shall be provided to the City upon request. (9) All Grantee promotional materials, announcements and advertising of Cable Service to Subscribers and the general public, where price information is listed in any manner, shall be clear, concise, accurate and understandable. W 313 EXHIBIT B FRANCHISE FEE WORKSHEET Basic Cable Service Expanded Basic Digital Service Tiers Equipment Guide Installation Premium Services Pay- Per -View Other Income Franchise Fee PEG Fee FCC Fee Bad Debt Late Fee Shopping Ad Sales Other Non -Sub Revenue TOTAL 314 EXHIBIT C FORM CONFIDENTIALITY AGREEMENT CONFIDENTIALITY AGREEMENT BY AND BETWEEN [INSERT NAME], AND QWEST BROADBAND SERVICES, INC. THIS AGREEMENT is made as of the date first written below by Qwest Broadband Services, Inc. (hereinafter "CenturyLink "), a corporation, the City of Columbia Heights, a Minnesota municipal corporation (the "City ") and [INSERT NAME] (hereinafter "Consultant "). WHEREAS, the City of Columbia Heights. Minnesota (the "City ") has granted CenturyLink a cable franchise in the form of an ordinance and agreement (the "Ordinance "); and WHEREAS, the City has the power to enforce and administer the Ordinance; and WHEREAS, Section 11.108 of the Ordinance authorizes the City to review and recompute franchise fees paid by CenturyLink and to require CenturyLink to provide all records necessary to confirm the accurate payment of franchise fees; and WHEREAS, the City has retained the Consultant to perform a review and recalculation of any amounts due to the City under the Ordinance ( "Review "); and WHEREAS, conduct of the Review may require the Consultant to have access to certain information that may be considered by CenturyLink to be proprietary and confidential; and WHEREAS, in connection with the Review. CenturyLink may be required to produce documentation, notwithstanding any claims of confidentiality by CenturyLink; and WHEREAS, CenturyLink and the Consultant (hereinafter collectively the "Parties ") desire to enter into a working relationship which will permit the review of necessary documentation so that the Review can be completed, while providing reasonable assurances to CenturyLink that any documentation it produces that is legitimately considered confidential will not be publicly disclosed by the Consultant. to the extent permissible under applicable laws and regulations or this Agreement. NOW, THEREFORE, the Parties agree as follows: 1. This Agreement shall apply only to "Confidential Information." as defined herein. The purpose of the disclosure of Confidential Information hereunder shall be for the purpose of permitting the Consultant to perform the Review. The Consultant agrees to use the Confidential Information (defined below in Section 2) for such purpose and related actions (such as 315 preparation of a report to City officials, and to enforce the terms of the franchise) in accordance with the terms of the franchise, the Ordinance and this Agreement. 2. The term "Confidential Information" shall mean and refer to all CenturyLink confidential or proprietary information, documents, and materials, whether printed or in machine - readable form or otherwise, including, but not limited to, processes, hardware, software, inventions, trade secrets, ideas, designs, research, know -how, business methods, production plans, marketing and branding plans, human resource policies, programs, and procedures relating to and including but not limited to organizational structure, management, marketing and branding strategies, products and services, customer service, human resource and employee benefit policies, programs, and services, and internal communication processes and technology tools. Confidential Information shall include all CenturyLink financial information, data, and records legitimately marked by CenturyLink as "Confidential" provided to the Consultant. 3. Subject to Sections 4 and 5 hereof: a. The Consultant agrees to use the same degree of care and scrutiny as they would use with respect to their own confidential information, but in any case using no less than a reasonable degree of care, to avoid, to the extent permissible under applicable law and this Agreement, disclosure, publication, or dissemination of any or all of the Confidential Information obtained hereunder; and b. Confidential Information will be kept confidential for a period of three (3) years from the date hereof and shall not, without the prior written consent of CenturyLink, be disclosed to a third party, except to the extent required or allowed by law, a court or this Agreement, by the Consultant, in any manner whatsoever, in whole or in part. 4. Consultant agrees that with respect to Confidential Information they will: a. Not use the Confidential Information other than in connection with the Review and related uses contemplated herein; b. At CenturyLink's reasonable request and at CenturyLink's sale cost, return promptly to CenturyLink or destroy (and confirm such destruction in writing to CenturyLink) any and all portions of the Confidential Information disclosed under this Agreement (including copies forwarded to subcontractors and /or agents), together with all copies thereof, that come into their possession; and c. Prepare a Review report to the City in accordance with Section 8 of this Agreement. Confidential Information may be used as reasonably necessary to defend such report's findings against any challenge by CenturyLink or a third party, under procedures mutually agreed upon by the Parties to assure confidentiality to the extent permissible under applicable law or this Agreement. 2 316 5. It is understood, however, that the foregoing provisions in Sections 1, 2, 3, and 4 above shall not apply to any portion of the Confidential Information which: a. Was previously known to either the City or Consultant without obligation of confidentiality pursuant to this Agreement; b. Is obtained by either the City or Consultant after the date hereof from a third party lawfully in possession of such information and which is not in violation of any contractual or legal obligation to CenturyLink with respect to such information; c. Is or becomes part of a public record or the public domain through no fault of either the City or Consultant or any of its or their respective employees, subcontractors, or agents; d. Is required to be disclosed by subpoena, statute, or administrative or judicial action provided that the City and the Consultant as soon as reasonably possible after notice of such action notifies CenturyLink of such action to give CenturyLink the opportunity to seek any other legal remedies to maintain such Confidential Information in confidence prior to the required disclosure. CenturyLink shall indemnify and hold harmless the Consultant and the City from any and all expenses of any type or nature which may occur to the Consultant or the City by reason of any legal or administrative proceedings pursued to protect the confidentiality of CenturyLink's records; or e. Is approved for disclosure and release by written authorization of CenturyLink. 6. All the Confidential Information disclosed to, delivered to or acquired by Consultant from CenturyLink hereunder shall be and remain the sole property of CenturyLink. 7. Disclosure of the Confidential Information disclosed by CenturyLink to Consultant shall not constitute any option, grant or license to either the City or Consultant of such Confidential Information under any patent, know -how, or other rights heretofore, now, or hereinafter held by CenturyLink. It is understood and agreed that the disclosure by CenturyLink of the Confidential Information hereunder shall not result in any obligation on the part of either party to enter into any farther agreement with the other with respect to the subject matter hereof or otherwise. 8. Any final Review report prepared by Consultant that references or is based upon Confidential Information provided shall disclose such information only to the extent necessary to convey essential report information (e.g., as in a compilation, abstract or aggregation). Any such disclosure shall not be a violation of this Agreement. The Consultant shall provide CenturyLink a copy of their Review report prior to the public release of such report to the City, and CenturyLink shall notify Consultant within five (5) business days of such notice if it reasonably believes that the Review report contains Confidential Information (other than Confidential Information expressed as a compilation, abstract or aggregation) and the Parties shall negotiate in 317 good faith changes to the Review report to prevent disclosure of Confidential Information (other than Confidential Information expressed as a compilation, abstract or aggregation). If disclosure of Confidential Information (other than Confidential Information expressed as a compilation, abstract or aggregation) is absolutely essential to the report, the Parties shall in good faith negotiate toward an agreed manner of presenting the information while protecting the interests of CenturyLink and the City. Consultant shall not release any confidential or proprietary information except in accordance with the terms of this Agreement. The Consultant shall have reasonable access to all requested documents. The requested documents shall be delivered to [INSERT NAMES] at the addresses set forth in Section 10. The Consultant shall be permitted to view and review such documents to the extent necessary to complete the Review and any subsequent enforcement proceeding pursuant to the Ordinance, and may take and retain any handwritten or typewritten (i.e., notes typed on a computer or similar device) notes they deem necessary. Such notes, to the extent they refer to or contain Confidential Information (other than Confidential Information expressed as a compilation, abstract or aggregation) in any manner, shall be deemed within the scope of this Agreement. 9. This Agreement is binding on the Parties, their successors and assigns. No modification of this Agreement shall be effective unless in writing and signed by the Parties hereto. 10. Notices hereunder shall be in writing and shall be deemed to have been delivered as of the day they are received when delivered personally, via certified mail, or via nationally recognized overnight courier: a. if to Consultant: Attention: [INSERT] b. if to City: c. if to CenturyLink: 11. CenturyLink's waiver of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive its right thereafter to enforce and compel strict compliance with every term and condition hereof. 12. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Minnesota, without regard to its principles of conflicts of law. 13. This Agreement may be executed in counterparts and constitutes the complete agreement between the Parties hereto and supersedes and cancels any and all prior communications and agreements between the Parties with respect to the disclosure of Confidential Information related to the purposes described herein and the subject matter hereof. IN WITNESS HEREOF, the Parties hereby indicate their agreement this day of 120 [SIGNATURE BLOCKS] M 318 EXHIBIT D INDEMNITY AGREEMENT INDEMNITY AGREEMENT made this day of , 2016, by and between Qwest Broadband Services, Inc., a Delaware Corporation, party of the first part, hereinafter called "CenturyLink," and the City of Columbia Heights, a Minnesota Municipal Corporation, party of the second part, hereinafter called "City." WITNESSETH: WHEREAS, the City of Columbia Heights has awarded to Qwest Broadband Services, Inc. a franchise for the operation of a cable communications system in the City of Columbia Heights; and WHEREAS, the City has required, as a condition of its award of a cable communications franchise, that it be indemnified with respect to all claims and actions arising from the award of said franchise. NOW THEREFORE, in consideration of the foregoing promises and the mutual promises contained in this agreement and in consideration of entering into a cable television franchise agreement and other good and valuable consideration, receipt of which is hereby acknowledged, CenturyLink hereby agrees, at its sole cost and expense, to fully indemnify, defend and hold harmless the City, its officers, boards, commissions, employees and agents against any and all claims, suits, actions, liabilities and judgments for damages, cost or expense (including, but not limited to, court and appeal costs and reasonable attorneys' fees and disbursements assumed or incurred by the City in connection therewith) arising out of the actions of the City in granting a franchise to CenturyLink. This includes any claims by another franchised cable operator against the City that the terms and conditions of the CenturyLink franchise are less burdensome than another franchise granted by the City or that the CenturyLink Franchise does not satisfy the requirements of applicable federal, state, or local law(s). The indemnification provided for herein shall not extend or apply to any acts of the City constituting a violation or breach by the City of the contractual provisions of the franchise ordinance, unless such acts are the result of a change in applicable law, the order of a court or administrative agency, or are caused by the acts of CenturyLink. The City shall give CenturyLink reasonable notice of the making of any claim or the commencement of any action, suit or other proceeding covered by this agreement. The City shall cooperate with CenturyLink in the defense of any such action, suit or other proceeding at the request of CenturyLink. The City may participate in the defense of a claim, but if CenturyLink provides a defense at CenturyLink's expense then CenturyLink shall not be liable for any attorneys' fees, expenses or other costs that City may incur if it chooses to participate in the defense of a claim, unless and until separate representation is required. If separate representation to fully protect the interests of both parties is or becomes necessary, such as a conflict of interest, in accordance with the Minnesota Rules of Professional Conduct, between the City and the counsel selected by CenturyLink to represent the City, Century Link shall pay, from the date 319 such separate representation is required forward, all reasonable expenses incurred by the City in defending itself with regard to any action, suit or proceeding indemnified by CenturyLink. Provided, however, that in the event that such separate representation is or becomes necessary, and City desires to hire a counselor any other outside experts or consultants and desires CenturyLink to pay those expenses, then City shall be required to obtain CenturyLink's consent to the engagement of such counsel, experts or consultants, such consent not to be unreasonably withheld. Notwithstanding the foregoing, the parties agree that the City may utilize at any time, at its own cost and expense, its own attorney or outside counsel with respect to any claim brought by another franchised cable operator as described in this agreement. The provisions of this agreement shall not be construed to constitute an amendment of the cable communications franchise ordinance or any portion thereof but shall be in addition to and independent of any other similar provisions contained in the cable communications franchise ordinance or any other agreement of the parties hereto. The provisions of this agreement shall not be dependent or conditioned upon the validity of the cable communications franchise ordinance or the validity of any of the procedures or agreements involved in the award or acceptance of the franchise, but shall be and remain a binding obligation of the parties hereto even if the cable communications franchise ordinance or the grant of the franchise is declared null and void in a legal or administrative proceeding. It is the purpose of this agreement to provide maximum indemnification to the City under the terms set out herein and, in the event of a dispute as to the meaning of this Indemnity Agreement, it shall be construed, to the greatest extent permitted by law, to provide for the indemnification of the City by CenturyLink. This agreement shall be a binding obligation of and shall inure to the benefit of, the parties hereto and their successor's and assigns, if any. QWEST BROADBAND SERVICES, INC. Dated: 52016 By: Its: AA 320 STATE OF LOUISIANA PARISH OF OUACHITA The foregoing instrument was acknowledged before me this day of 2016, by , the of Qwest Broadband Services, Inc., a Delaware Corporation, on behalf of the corporation. NOTARY PUBLIC Print Name: Bar Roll #/Notary ID #: _ My Commission Expires: CITY OF COLUMBIA HEIGHTS By Its: Department Head Responsible For Monitoring Contract Approved as to form: Assistant City Attorney 321 CABLE TELEVISION FRANCHISE ORDINANCE ORDINANCE SUMMARY ORDINANCE NO.1624 AN ORDINANCE GRANTING A FRANCHISE TO QWEST BROADBAND SERVICES, INC., D/B /A CENTURYLINK TO CONSTRUCT, OPERATE AND MAINTAIN A CABLE SYSTEM IN THE CITY OF COLUMBIA HEIGHTS, MINNESOTA, FOR THE PURPOSE OF PROVIDING CABLE SERVICE; SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE SYSTEM AND THE PUBLIC RIGHTS -OF -WAY IN CONJUNCTION WITH THE CITY'S RIGHT -OF -WAY ORDINANCE, IF ANY; AND PRESCRIBING PENALTIES FOR THE VIOLATION OF THE PROVISIONS HEREIN; The City Council of the City of Columbia Heights, Minnesota ordains: STATEMENT OF INTENT AND PURPOSE Qwest Broadband Services, Inc., d/b /a CenturyLink ( "Grantee "), applied for a cable franchise to serve the City. The City will adopt separate findings related to the application and the decision to grant a cable franchise to Grantee, which shall be incorporated herewith by reference. The City intends, by the adoption of this Franchise, to bring about competition in the delivery of cable services in the City. Adoption of this Franchise is, in the judgment of the Council, in the best interests of the City and its residents. The specific terms and conditions of the Franchise Ordinance, Sections 11.101 to 11.114, and Exhibits are available for review at City Hall, 590 40th Avenue NE, Columbia Heights, MN 55421. 322 CH COLUMBIA HEIGHTS AGENDA SECTION CONSENT AGENDA ITEM NO. 7U MEETING DATE JANUARY 11, 2016 CITY OF COLUMBIA HEIGHTS - COUNCIL LETTER ITEM: LICENSE AGENDA DEPARTMENT: Community Development CITY MANAGER'S PROVAL: BY /Date: January 6, 2016 BY /Date: j BACKGROUND /ANALYSIS Attached is the business license agenda for the January 11, 2016 Council meeting. This agenda consists of applications for 2016 Contractor Licenses, and the Food Truck License for El Taco Loco Inc. At the top of the license agenda you will notice a phrase stating *Signed Waiver Form Accompanied Application. This means that the data privacy form has been submitted as required. If not submitted, certain information cannot be released to the public. RECOMMENDED MOTION: Move to approve the items as listed on the business license agenda for January 11, 2016 as presented. 323 Jan 11, 2016 lic agenda City of Columbia Heights - Council Letter TO CITY COUNCIL January 11, 2016 *Signed Waiver Form Accompanied Application CONTRACTOR'S LICENSES -2016 BLDG Cities 1 Plumb & Htg Inc 787 Hubbard Ave, St Paul $60 *AEP Construction LLC 16025 37'1 Ave N, Plymouth $60 *Metropolitan Mech Cont 7450 Flying Cloud Dr, Eden Prairie $60 *Rick's Plumbing Inc. 170122 1 " Ave NW, Cedar $60 *Champion Plumbing 3670 Dodd Rd, Eagan $60 *Nice Neat Plumbing 2227 6th St NE, Mpls $60 *Cichy's Water /Sewer 3346 Snelling Ave S, Mpls $60 *Horwitz Inc 4401 Quebec Ave N, New Hope $60 Larson Plumbing 3095 162nd Ln NW, Andover $60 *McQuillan Bros PI/Htg 1171 E Hwy 36, St Paul $60 *Faircon Service Co. 764 Vandalia St. St Paul $60 *TelCom Const 2218 200th St E, Clearwater $60 *Stanley & Wencl 8786 Egan Dr, Savage $60 *Artistic Plumbing 6349 Quebec Ave N, Brk Pk $60 *Uptown Plumbing 3110 Washington St, Mpls $60 *North Anoka Plumb 22590 Rum River Blvd, St Francis $60 *Practical Systems 4342B Shady Oak Rd, Hopkins $60 *Louis DeGideo Services 21033 Heron Way, Lakeville $60 *Velocitel 1033 Skokie Blvd, Northbrook $60 *Plumb Right Corp 121682 d Ave N, Brk Pk $60 *Pronto Htg & AC 7415 Cahill Rd, Edina $60 DR Peterson 933 11th Ave S, Hopkins $60 *Kraus Anderson 525 So 81h St, Mpls $60 *Corp Mechanical 5114 Hillsboro Ave N, New Hope $60 *Pressure Creek PI PO Box 1045, Princeton $60 *Assoc Mech Cont PO Box 237, Shakopee $60 *Modern Htg & Ac 2318 1St St NE, Mpls $60 *Superior Co 1244 601h Ave NW, Rochester $60 *Marsh Heating & AC 6248 Lakeland Ave N, Brk Pk $60 *Kath HVAC 3096 Rice St, Little Canada $60 *Roto Rooter 14530 27th Ave N, Plymouth $60 *Genz Ryan PI & Htg 2200 Highway 13, Burnsville $60 Mr. Rooter Plumbing 5155 E River Rd, Fridley $60 Blue Ox Htg 5720 International Pkwy, New Hope $60 *B & D Plumb/Htg 4145 MacKenzie Crt, St Michael $60 *Seasonal Control Mech 6225 Cambridge st, St Louis Pk $60 Noah Acq /Ben Franklin 5718 International Pkwy, New Hope $60 Norblom Plumbing 1465 Selby Ave, St Paul $60 *Wright Tree Service Inc 5930 Grand Ave, W Des Moines $60 *Neighborhood Tree Care 5176 Hughes Ave, Fridley $60 *Bartlett Tree Experts 2724 Fembrook Ln N, Plymouth $60 Treehugger Tree Care PO Box 21543, Mpls $60 *Aaspen Tree Service 970 Wayzata Blvd, Wayzata $60 324 Page 2 City of Columbia Heights - Council Letter *Northeast Tree Inc *Hiawatha Tree Service *Arbor Tree Service *Rainbow Tree Co 2124 Marshall St NE, Mpls 5225 43'a Ave S, Mpls PO Box 290298, Brk Center 11571 K -Tel Dr, Minnetonka FOOD TRUCK LICENSE *El Taco Loco LLC 4220 Central Ave NE, Col. Hts $60 $60 $60 $60 $50 325 Page 3 LU 2 OD J O LL O H U c a) ca CL L m N M �D O N U O U � � a) 70 O a) E W z z U 0 U U 4— O N � _0 C m cn �Ww Q o LU z L m cn c C 0 O � U 0 0 LL U O } U a) 1- U a) C3 N rn I,- o cu N co ca N () O) cu cc O CD o Co 0 co O � O O m a) L -Q — Z W W J cn o cu (/) U C H W Q 0- LJJ LLJ U Z z 0O Z Z Z LL O w Q > Q LJ._ O } _ Ur = Q D O U LL 0 O �_ O U cB O O co co L L a) E c6 N O a) -C U m v a)) c a) ca CL L m N M t- 04 M W W * * * * * * H C7 * * W W * * x� O * * r� U * H * * W r * * a U) y+ 'J * a r * * a, 0 * * U?+ U I * * W 000 * * Alli >HoLn * * * * U) H i7 C7 * * a) l0 U * * LO C t'o * * m -H o * * 0 r ,a * * z m K * H LO * * * * * * H H * * m a * * a u s4 �4s4N�,uP�4z4 * * a +-) +J N 4-) +J +) +-) -P +J 4J u +J +) +J a) k * H U * 0 0 0 0* U r z z m s u * * z (n a 0 * * D n +) * zzzz* O a V) * * U n 0 -ri * * H x * z z z z* 0�-i * * x x * * o �4 * W wWW* Ca * * \ U) * aaaa * o a * * ..... ........ uro * * 41 111 * * * * ** 0 u W m * * +) N . . . . . p n 040 ,i . . N . . . . . . . . ,-i 0 U) 0) * * H 4) Ul U 0) U * * -rA N S4 a) W 0 a 4-) 0 m v z -H u * * U �L 70 . .+�v \� +)a)z H * * v a) 0 a) -) � a) s4 (u u Q a) U C z Uw * * -I a ulU a)'OCC . . .0 ort X CC< z * * a) z U 4) 0 W W ... W x N N W rho * * U -I 0< (0 U C a) 0 W -N al l 4c N H Q rl rl z 1) • a) U) Sa a) Ti a) U) H\ * * V a m=6 vro(0 0 z40 (0 Q) U)a) 'o (1) Coi G r * * S-I o ,D x U i_, r aC a) o -11 S (0 S-I ;� 4-3 H ,q a o * * 0 -H ra 10 U N N S4 U -n '0 0 U k U a) td rl (0 0 cn \ * * 04 +) U C a) �j 7 �j a) 0 C P Sa C �J r--I (V U a) C h U (D Q Z 4000 s4a)CCN0 VH Cu C < O * * * * ** C4 0 H 44 U U) h h U a> H a as > JO i U H U ai m � H x c� H W x w H FC ma D r aN O U r 0 Ga O 1 a >i 0 H d' H In u (D z H H m H a p H O U +J z U) D •H O x x �o U H N O C N U\ H H H O W M H •. mm m.. H aH H U� zH Q O ZN H \ W r 0 m\ U H F:� 0 H 0 0 0 0 w Lo 0 Lr) 0 0 0 4 H0m0ko �o0r-- m0HorN000H jmr - HHoor n voL000toH z 0 f) O N m w 0 m w 00 m r in N O r r O N m O O H N O w N O M N M H w I'LOOr HNO11000Hm O M1 d NHwO w0 N O 0 M00' OMN O Ln in lf)tn lO m 1D O w cM ww w c 4 ONOw H m H in r�, M d O a r N a M o o r N r N N m N N O O dM O W r O H H l0 N M H m H H C n l0 0 V O H H r M if) H r N O to N N O H N 1;3' H H l0 -' d' N H H N H d' H M N v m H M M w w MH Htn HNN to H N N NO Mm MH d N H M H H w H Lo N M Ntf) Ln Lf) in U7 N NLr) N N N N in in Ln N N Ln na) Ln Ln in Ln in N N N N N N N U) N N Ln Ln Ln N in in NLo Q H H H H H ri H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ .Y.i l0 Q0 1-0 w �D 110 w to w O Q0 l0 l0 l0 w w to w 0 10 10 110 w l0 w l0 w l0 110 to w 110 l0 l0 110 to l0 w w to w w �o l0 w w w U H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H x N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N (N N N N N N N N N N N U H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H x U W x U r O 0 Q U cD z H x U W x U x x z z � W rwm0HNMd•tolOrwmOHNMd a)lOrwmOHNMTLn lOrwmOHNMd Ln OrwmOHNM MMMa v vv d•a•a•��T<r Lo u)u)u>Ln n 4 uu Lo Lo �ot-oio�ow o o�,owr rrrrrrrrrwwww v 'T IVITIVcv,IgwIT w a•a+e cca• -VcTIV I- IT �w -V v ;v v a d•vT��T 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 m m m m m m m m m m m m m m in to U) N U1 U) in in N N N N in N N in Lo Ln Lo N Ln Nu-) Ln N Lo N N N N Ln Ntr) Ul to in N Lo N N N U) U) U) N N in H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H u x a w 0x U% z< 4 • U 0U44 Z < x U U 3 W H HO O H M H 0 z U z i H 04 0 2 m H Q 04 > U H D �+ D U H H a x U U H W>H x Da z >4 U w w0 >{ 00 '1 a ax U wW dam 90ZC4 W Z Z ,CQ U U a z N a z U W >q < w z m m x < W m X 0 z< H (n x H F4 O >10z fxCY.U) m0 U HD >4U4U0 Ux D HCLH w >C7 C4 maHH OW z zzUQH C7 HZ W H Z 0 41 f14 0 XXnHa P+'z HX U I pqW H u W 3H HHZa <W Z H<wH H000HP4UOWP: WH ZOHZ <a4gW HU' Oa HH(4U Hsi zzD U H ark UHO> ma wUzHw4QaawU3< QE+ am D9f� Qa,m\Oa z0014H � 4HFC H U w D m 0 0 z w x z W4m0.1W Fg04Wm O HZZ44U) •\ ap<c : HOH 1 W W m W wz0L 8:0 Ww> 53M Pn'HM<> W DxHaHmUmH3OQOxa0H0 v)c4a1z WHa l4<0 H w >Wz hmmxw wH0.1 > < 9 w H z q w w 0;UIa 014 Q D>P7DamCQcQummHHmH WIC\ Haz>1wa W Q404Hac4HDa, >jl M 9:<n <u ZUZOH 01HW 0- Z14 aQa0Ha000 r.4>,> W mDWWmWH0 OwaQa <W9UUZW XHM>l> -i XH U\HZ Haza Wa m 31-1 U < 14D00zU Z0143U DDH wz\Ha ZIZW Zm00F:�>H0QW H < X Q �WH m z z w mm0Hz0HD I WO W C40WH9 WxHW W 0 Z U W > F:4 W H 4 G 4 Z0 Pa OL H WHxaamZDZHH>rC 4U mWC4ZWWx Dx co W WOHZ04P00P9 rCQ1-1 00H04 01PDa4Fg0 <Zu+ZHU0MZ- QWHxLI4 aZwmZxmQ2 xOHzQQZ �CHXZZC4mm W W W WC4<9WH00HU04XX WHa W0 ;T 90UZZh0P4H Uww FCFCFCFCFC<FCFCCOCgMMMM WUUUUUUQWW WW W 4444 44 00007 lj HHHht xIq X X 2 00 N co U) N E x H W x w rn 04 Q r aN o U r O Ga O I fZ o Ed H Ln Ua U c� z H E U) H a p H 0 U +- z U� .H o xU k l0 U H vo 4 N U \ H H H O 2r W M E •• U) 0) >i H H a H H U O 2 H �o 2 N H \ w r- 0 v? \ U H �C o E OOOOOIOON vM 'TNOOOOOlOmLocc0000HH N N to N to d' ID N 610 Ln 0014 NN O ION Q . a' N O O O O N N N M l0 O 01 O O N d' O> N O l0 O O O O O N M O H Ln H 41 N M dl Ln OHM 61 O O H N O M O N 4 1 N d' O M O n O 0 0 r to O N O M 0) O M O Ln (N' O N r 00 o N N d O r NHNMMONONd' Nd' ONOr OIOMOOLnr MOv Lnd'M MNHIOIOONOI M N M M N M N N O N Ln H O Lo M N M H N N H H H O H V� C) cr H M N H M M H dw d') N H N H w E o o Lo Lo (o Ln Ln Ln d) o Ln Lo Ln N Ln Lo Ln Lo d) (n d) Ln L Lo N Ln Lo L<) Lo Ln (n Ln Lo Lq Lo a) Ln u-) a) u) Ln Ln Lo N Ln Ln Ln Q H H H H H H H H H H H H H H H-1 1111 H H H H H H H H H H H H H H H H H H H H H H H H H H H H H \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ 110 l0 110 to ID 0 IO ID 0 0 l0 lD IO IO ko to ID 0 w l0 IO �o �o 1-0 0 IO to to to 0 to IO Ifl to ID IO M M M M M M M M M M U H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H N N N N N N N N N N U H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H x U W x U E z Q o 0 z H x U F4 x U x x z z W CQ IT u-) l D r N 01 O H N M IT N I O r N m O H N M d' L n I O r N O) O H N M IT 0 O r N 6) O H N M IT N I o r N 61 O N N N N N N m 0) 61 m m 61 O) 01 0l 61 O O O O O O O O O O H H H H H H H H H H N N N N (\I N N N N N M y d' d' C C y d' v V' y y y T mil' y C Ln u) Ln Lo Lo o Lo Ln Ln Lo Ln Ln Lo In u) Ln Ln Ln u� N Lo Ln Lo N Ln Lo Lo V7 Ln Ln N 61 (y) (3) 0) 0) 01 0) 0) 0) M 0) 61 0) 0) Ol 0) 0) 0) 0) 0) 0) 0) 61 O1 Ol M 0) 01 0) 0) M O) M 0) 0) 0) 01 6) 0) M 0) 0) 0) 0) 6) M 0) Ln Ln Ln Ln N Ln Lo Ln u) Ln Ln Ln Ln N Ln Ln o is Ln Ln (n u) N N N Ln Lo if) Ln N Ln (n u-) u) o Lo Ln Lo N N N N Ln Ln Ln u) Lo H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H Z W 0 0 00 U(70H Ufx 549 U Z 2 O F�2U) z a Wa,QUO zz0 N EE H U W O E H a E fZ \ Z U H H 0 >+ 0 0 — > N 0 U a XU H a HOUH aO'H a U) U) N z x U > 2 0 H O W H U FC fZ U Z 0 W Q O Z N fx W W W 0 0 >+ >i a H Z U U W H zE H HU)Z 0H 04 Zz CO u) OzfZaZ N H z zW HO NU) Z H C) a n z H99< W a E Z z H U) co co a U) O$ fZ U U) E H H 2 a U (Z O, 04 x a x 0 03 wow w- mw Oxw co I F�4 zZ0.1E£ m W W U H w zz wEZ fZ E2C7aU) u U U) HWHz0 C4 H EU) U)Hz a La U)QFCW W HUU)W w o azawU i7 f24 0Zz0Z Uzw 0EH WP,0 U hfZEaOC4 p 0 0 EN EH U 2 O E <<EZ0ZUH�D 2X wzZ; 49 z z < wwcn Ea» Z HQZ M1Qp0 Zw ZxW HO COx4O H UlU3lZHUEr.� Zlo � > U fZUH O E I w C) HC4(1)N a, 30- U) W p;W H W xwwWC7xzU)rl;f4nEm 2 W a0 O wU) a F.� (4 44 xMWH>4>43rWU > >0f4EHQR:< O QQ> Y1 W44 hzQZ cn fZEZhZC7W Hu)WaEEE H WafZWwzwg OZQEQUZHOE S a \lZ 0M 00U)rC> ZZxxHZZHHHZN 9w mmHz"4 Z4 C W -9C4u z >a M W U H H U HmI-wHOUxHW00000QZU)£ �G w\w39 2; UZUW O x0xU Ea •QQZx11XF4HU) CO 3 NUww NNfY Ua<n,"0Z0HHQ Q U) C42fZ W0Fq Hxm) l H WEER W ZZ2H0ZaWEEC7aZ0 H <Nrx xxxH EQfZNW XC4wfZDH W W 2U)HZW lZ CZ00HHHZZOZ0ZfZfZ w�)w wE >rCW w00E W HOcnW H0fT4 9 9X0 Ct OEE HxU)z33 W HWxHHH2O0H U U Q ZZOZ 2XX2ZZZ0N WNN xrxf zu) rncnl nEEEEEEE > >33Z333>C>4N 99< <<< 0) N M m M F x H W x w FZ� t7 a) a Z r aN O U r 0 44 > O 1 a �H o F d' H to Ua 0 0 z H F U) H F4 >1 a SH H 0 U +) Z m � �O x x Q0 0 H N O ,4' N U\ H H \ H 0 £ r wM F•• U) 0) > H m.. H aH H U o Z H � o z N H \ 4 r 0 m\ U H <0 F O H 0 0 0 w0 W 000 to MH m00IT LO 0 tr) 1010611001000000 M O 00 r 000 N 000NN0 O H O O 61 to m 61 0 0 0 N m w O H H �' N 61 N 61 N M O v m O o to O N to T H M 0 0 w 0 0 0 N d' �o r O 'T LO r HMO00 01 r a' M 00 to N to to N N T m 01 to 0 od' Lo O T O O N to H O q d' N N w w O O r M to v 00 O H N H H N l0 W r 16 H N r r M M d' H H W 0 61 C W N m lfl O r M to to 0 to W O M 00 d' r CO O M o r r r;C tf)HNH NNr N 6l N to cT MM 1061 HH 0NM Hl0 HH r Mu)MHOHw H H N N w F Q x U W x U x 0 W x U F z a n Q 0 U z H x U W x U x x z z P7 W to to to to N u) N N to Ln to to to to to N to uo 0 u) tO u) to to to N to to Ln to N N to N N N u) N N to u) u7 N to u) to to H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ M M M M M (`') M (M M M (`) M M M M M M M M (y) M M M M M M M M IM M M M M (`') M M M M M M (') (`) (M M M ('') M N N N N N N N N N N N N N N N. N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ N N N N N N N N N N N N N N N N N N N (`J N N N N N N N N N N N N N N N N N N N N N N N N N N N H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H HNM "T to lO r N 61 OHNM d' to w r 0mOHNM a' to w r O 01 O H N M d' u) 10 r m m o NM vu)10r MMMMMMMMM -;3, T T rd'b'Q'd'd' wLo to tf) to to to N u-) Lo w w 10 w w w lD lfl w0.o r r r r r- F- rr to to Lo Lo Ln N N N Lo Lo u)N to to u)(o to u) to N to u) LO to N to N to N io N U1 u) to W to N N to Ln u) to to u) N to 0) 61 61 61 61 0) 61 61 0) 0) 61 01 61 6) 01 01 dl 61 0) 01 61 0) 61 m 61 0) 61 61 61 m 61 0) 61 61 61 61 61 01 61 61 01 Ol 0) 0) 61 61 61 Ln Ln N to to to t.o N to tr) to to to u) N to to to N N to N to to u) u) to N u) N to to N N N to N u) N N N N to to N Ln N H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H Q N a r4< U w x u 90 a2 F xU > 3H3Um u 00 mO mm F O a OZUm ZPnFi0 Z ZUaFF ax GHQ U U UHzw <WHa,7. U H U z a U H a U N w H Z w a w u n 9 u m x < O Z a Z wa z0a, 9 z F x< H Ul> z£UQ Z Z4 NmXO H 44 HZ ammHU' 0U)(D<P W H U)>HOOgH O a U2 ] G 4 U) a H0PG a U I Z > m FF zFinaN HPQ Z0WG,01 >+ w(IQ N 03uNN0w QHcog W <0 H NFZ[ U)Up< N H000Hz F Fr�z04 HW z0 aHaaa m H �-+U) Z0 4n > Uo H 1-1 C4 H am az.7- WQzu w H(y'F f�NmH UO<a04 W\zaa Qi aZ00 O(D 44 > a 0 m Z O w w F a Z a,' 0 H a z a 0 ll a N x U m H O P' H N U Z G+ m - < as HF( FU)W a m FOW WONM (0 W HFZWMZW #I-- H0HU)P; 0>4 wxx3 QC49><zxmzmQ7z >ma m >OxHwazU W 0 M U Z Z 000 WF; >4 a1FC WZW41WWHZWHa H W UrL WH Wf. FCHzwW \zFZHww a m FN "I. z 9 p ma0HZ r4 HFC�F Q5 tiCz >+WFmx0040 WaaaH0HQa >alA w Z a 0 1-1 Z0 01 fCa4 4 U zOH wU g>+ WDDC7WWN aP7H0 Ql(�U)T4 PMHzaw > >a 0mp0W 2i wzF>Fawm4U UFwNw Faz> w aUOUmH H00z0a wmUmaU \ M W X Z z 44 W4ZmQF >Q4>i0Q 0 a0 4 Z m H x Z0P54Wn M4 1 < p H 0 M P:0wpw4 ZHwzmWHz H w >4mW ODWZZ94ZU2 4 H 0 P P XP4NmXUHUWC4O:M 0 a4 X0x •wOFZz mxP:QD aq Z CO�HNZZZP<ZUXZ <a> 4WEO �HZZ4WU)Xax�aFQZ xz m�cFc<WwW40 Q9WWWWxH000- <4 XXxHaawWaa FCW000 ZZhOW FCP0P MWCQa1WP74MUUUU000UUUQQOQW W W1,41 F.40 7070 4C EjxxxHHHtt`4 0 M M U) E- H F:. as a a � aN O O Ga > O I >1 o H a` H � Ua 0 t7 z H H U) H a >1 a i4 H 0 U +� Z N Q -H O x x to u H N O '(11 N U \ H H \ H O W(n H U) of '�H H H F H H U to Z H Q O zN H \ Ga t� 0 va \ U H K4 0 H N M W I` Lo 00 l0 O O O O M l0 Lo 0- r� N h 00 0 0 000 0 0 0 LO O M O iO io w O I- O O O m O I- H N O M O N O f- LO N M O O O io M H m O m N O M d• I, O O dO O O O O N O N� I- v� t7i o)o O r M to NH Md' LO O 00 C1 M F� NH LO r� O 10 LO 01 10 0 V' V• W MO 00 OO C; l0 H d• r- M N N N 01 O 01 00 M LO N N r r dl N N O O O Ln M Lo W o1 10 H T w H I- M w U1 m N H M Lo 01 m H TNW H MNHr H NhN of rH l- 0100 h co 000 dl I`H LO a) 11 [rO O O M H H N H w H Q x U W x U x U W x U F z z u C7 z H x U W x U x x z z < F:4 �Q m o oLOLnd)n oLoLnd) Lo NU) 44NNLo uI4Lf)Ln U )u) NLn NU)U)Ln u7NNu) NNa")LONtocO oLou1NLOLo H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H ci H H H H H H H H H H H H \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ M ('-) M M ('-) M M M M M co 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 f`l M M M M N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N (Ij N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H 00 m O H N M 4' Ln lfl I` W 0) O H N M d' LO 10 I^ M of O H N M zr N W m O H N M ,r N 10 r- w 01 O H N M 'T r` r O 00 W N N O 00 O W W 01 of m a) m a1 m m a1 01 0 0 0 0 0 0 0 0 0 0 H H H H H H H H H H N N N N N Ln Lo N LO tO o Ln Lo LO LO Lo 4 dO to LO Lo Lo LO lO o Ln L010 w to 1010 Dla 10 w to to w 1fl to lo 'D l4 w 10 w w to to to 10 m of a) of of o) o1 a1 m a) ai Ol a) m of of of o1 dl of 01 m o) m 0) 0) of 0) 01 0) 0) 0l 0) of 61 01 01 a) 61 m m of 01 of 01 01 0) iO iO io io Lo LO LO cO iO N LO Lo Lo aO tO io Lo Lo U) N if) Lo Ul N N U) Lo U) U) N N N N N N N io N N Ln U) N U7 N to U7 N H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H Ow • U < �-i zaa U U z OO U << U I U O O a z H w m z z U) x U) a Q H H H z u co U2 Uri Z 0 Fi H H FU W P4\ > 00 014 zU) co O z 0 cn HUH HWH 0 to co U) a 7 H FC0 H W (4 a cn u) aFz u P w 4 H S. < z O H < w H 'z, �" H Q, H PY (i) ,'Z 'Z U) Fn 0 O HC7 Z 0NZ04 0 W 04 0a m z Z�l U U�-i 0HZ 0 0 Hco H2UH U)z2 w04U) F HH z P4 !Y xJH H 4C)': HH,'ZM Fl HO CAW - azU) x z� H�-I H 3�cx HPax Hz OW � H>- w >U H Z W W H U fZrt a fSP4()z,HU) 9H 7 cn 9U1 U) W Z HDDz W H w w z H3 FC U)WFCo0Y FQ xHzw 0 P U W W Z Za40HHW4UW00 U)x xW UF4F H4 u x 0 z H WO 2 9 zz 4 <x 90P C9Wz�4<< HWQ04 a WFa U) CQ 0zza wH U) H U) F UI 0: cn w Z E H Q a > O W a< FC Z H\ a P4 Z>+ Q< Z(/)9i-H P4ZHpaW4P Hal 3 WFCZF WP47 3W�D QU- P42ZH W W W(D w U0 EC 4r-� 00NWP:M U arx�9:0UZ3oH NU K4 gC : g H > > 0 Z aQ Ga OFUH C)< azaa ula xWr. 900ZH4U uwxwx HHWWZW Oa U) FP 4HZMzx\H ZNaaMMHZ x9nQ -i )cnFC00F 0 0 \HH aHHH H 9 1 HWHUx�W000 9w P4 wzz4wW W wwC4xUZHzza >Fa\P;H0 FH�C4 H4 aaHW ,DNUWNNZ xQO 7+000`ZZZm W WU)Wco Hx4 O aH04rH�WZr�h00X <nW W04WZ4 DpHZZZZZ W aX2XXXXXXXzzoo000aaaaa0awr�mcUnM0 )cMnmranM0MM Mc Dn ) >D3333X M co M Ln H x H W x w (D H K cq a, aN O U� 0 w O 1 a O H d' H u-) Ua U 0 z H H H a S4 H O U +) Z V) z .H O x U U H all O U\ H H O W M H•• Cf)rn >-1 H Ua.. H H H U lD zH �o Z N H \ 44 O U) \ U H <O H O H d O H lD H O H lD Ln 0 l0 0 0 0 0 H 1D Ln H N O 1- r M N 0 0 0 m H Ln m O -v O N M M O m W O M O N 0 N 0 1 -0 mm0 wh00r -0 0 0 0 Lo Tr- HO d'O T M w O T LD, m lD O N O v M Ln O Ln T Ln O Oh 0 Dl Ln CD N 61 61 to M M H 1D 61 lfl OD O Ol N M O l0 W O OJ O 1� Q' N M N Ol O M lD O t` Ln M O 01 co, 0l OJ N H O Ln 1` H Ln r- <D M h lD H d' t` M N O Ln d' '31 al h N w M lD lD M H O M 0) N Ln w 00 O lD m lD [h lD H O m m O a' H 1- H co d' H H O N d' O7 O a' M 4T OJ dT M H r- 'T 0\ N N H O H N N M N H 1- H O H N M N N 0] H H M W H F� Ln Ln Ln Ln N Lo N Ln Ln Ln Lo N Ln Ln Ln Ln N Ln Ln Ln a) Ln N Ln Lo Lo Lo Lo N Ln Ln Ln N Lo N Ln n Lr) Ln N Lr) N N Ln LO �f) Ln Q H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ x M O O O O O O O O O O O O O O O o 0 0 0 0 0 0 0 0 0 O 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 U N 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 M M M M M M M M M M M M M x N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N U H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H U W x U H Z 0 0 Q U 0 z H x U W x U x x z Z W W Ln lD 1, O m O H N M r Ln 0 l- W m O H N M d' Ln lD I- O m O H N M cT Ln �o r O m O H N M QT N lD r W m O H N N N N N M M M M M M M M M M IT v aT '31 'T a' d• IT IT cT N Ln LO Ln N LO W, Ln to Ln lD 0 w w lfl lD lD w w Q0 rr lD lD W lD ID l0 lD l0 l0 lD lD lD l0 tO l0 W tD l0 l0 ID lD lD 0 lD l0 lD lD lD lD -0 w LD w 110 w l0 lfl w w lfl W w to lD w to w Ol 6l 0) al Ol Ol dl dl M Ol 6r 61 Ol M M Dl Ol Ol M Ol 0) M M M M M M 0) 0) M M 0) M M O M M M 0) M M M M M O M M Lo o Lo Ln Ln Ln Lo o Lo N Ln Lo Ln LO N Ln N Ln Ln Ln N Ln Ln Ln Ln Ln Lo N Ln Ln Ln N Lo Ln Ln Ln N N Ln N Ln Ln N Ln Ln Ln Lo H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H U Uaz E m >H a Hw x o z za< x 2 z zr$ UO U) x> H a, o W < U; W Q z U x U U C4 S x U H U a, W Z H U H F:C Z 44 WUW00U U>1 Ua a x a a, z W x H H 0wzUZUza�nzz >l a Z o r.4 UH HZ U)2 < H H U) H 4 H < U) >1 0 U (n "z, D U` H z, U x >i U ai W O U) a > 0 a a U) a H H 01 'z, U) O z U 1x H z al (nu N<xr: L6 ZZH mXUH pQ 04 F�C W w w 0 H H z Or� HFf N H H co H w H W Z FA O z Z 4 a, H - U U) a U) U H H V >l U O Ua z0xwzazw W UHw a zD WQO rn>� H H U a a4 M a Z00 w0 <a+a+ 3HHUW x0 co0zzUP 4HH PxaD%WZW042 W HN WOW a+ U1 UFCHa UP: ,W(7$>1 04 H4 W a W 0 C40%WW W P < H U U Z � XC)ZXH xHFg0 1 zwco0 WU(4Ox W> 044 W % EHXHx44X HHWUYU) U?+ W 402014 mw OWa<Oa Z<0 HWZ < WpmwxU3 WZ>WHHZHZx U�U HO Q>+UW -IZPOQ 9 MUM4HMH0U) H zHWO 0C)WO;ZC4O4H0HH QH0 QQUC4zHH H< Z . r4 4 E4 a zQOa0wzrHxw0wwwa zxawwwwH9aUQZxEcnc n\>�>ixn3a>1DU)0pwa umila 1 0pQ r< n \\HwNx Ha<UUUaWU04 w4 xza00UM 0Px<>iUM 4 DH Q4MPa04 azzmQH\ �x�44W a ax44HwwzxxaaHzcUUHN>Ha'<UUWZ v,2oxwuxwoOww�w QQW > > >QaWWOaHamzaUFg4Z9004ZP cUXaaW�- Z%4W0 � ZZXXaw N9<< FCFCFC <�Cg4FC<<gW0.1MMWaIMWU000UOUQQW WWGl4 G,G �C�xx x 000� N M M mw H x H w x w F(: c7 H Q' M a X D I- 0 U r 0 Ga O I C4 o H d' H N U 0 U z H U) H F4 >� a S4 H O U JJ z U) D .,, O x x�o U H N O 4 N U\ H H H O r W M H •- m C) >i H m .. H a� H H U �o 2H O zN H \ [_, r 0 m\ F�4o H m o m O O N O O H O O O O O O u) ID N O O O V' N O O O r 0 0 lD M to O N O r m 0) r m N 0 0 0 H O N 'z w v mr o v v o o zv Ln H N Lo N O H m r M H o 0 H O m O N m O H O w O N r r1D o w v o m 0 O rN41 d' O C) Nd'N mLn 61OOHN Nr N 0611 H 00"C m O T O r w 0 O M O m N M Ln H r N Io N M N M Lo r NMNOOioP l Ln r Hm V'Nr rm MOOH lO N O N M N N H H Cl N Q0 M H N H H M M H to d' Ln lD qv H M N a H �D m C7' N r d' H N so N N M H H H w H FS, Ln N Lo LO NLO NLn Lo to LO u)Lf)u)cnLn Ln Lf)NLn in NN Lo NN Ln u) u) N N N Lo Lo N Lr) Ln u) N Lo Ln N l0 I'D 110 lD l0 Q H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ .Y, 0000000000000000000000000000000000000000001D1DWIDlo U 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 M M M M M M M M M 0 0 0 0 0 x N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N H H H H H U H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H O O O O O #k .Y. U W x U H 2 O O Q U C� z H x U w x U x x z 2 Fc Ft� m m N M d' Ln l0 r m m O H N M IT Lo w r m m O H N M 43' Ln 0 r m m O H N M a• u) to r m m O H N M C N l0 r m r r r r r r r r m m m m m m m ao m m 0) m rn rn m m 0) m rn a) 0 0 0 0 0 0 0 0 0 o H H H H H H H H H w�ow\D kO �o Io tD to l0 l0 l0 l0 to to to to to to ID lD to �o �o to to W w r r r r r r r r r r r r r r r r r rr m m rn 6m 0) of m m 0) 61 0) 0) m Ol Cl m 0) rn C) m rn C) m m 0) 01 0) 0) C) C) C) Cl h) m C) C) 0) Cl h) C) a C) a) 0) 0) C) 61 Ln Lo u) Ln N N Lf) Ln Ln M Lo Lo N u) M ll) M Ln Ln Ln Ln Ln u-) Ln Lo Ln u) N Ln N Lo N Ln N N u) N N Lo Ln u) Lo Ln Lo N N Ln H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H a z0 • Ow O z U U O 00 FC4 F¢ u H El H O U I m U H m z a m Q U z H H U H Z >+mDD U P: m W Uz U HO H a H \ H 00— 7H ZHFq U 0 W 9P:ZH m z H a H U P: F4 mmaHU a 9Q0 zP:7Zm>4 DH W H a HU U)WP: z 05 W W Hz W W a �'1 mm 20 HH awH W H Ha FCZ Y40:H H HFC 22mQH U)U Xa W Q H QaU4P:U 0 z W W X 0G Da < z z W H 00 w >G Of 0:n4NHDWH O O 0U)w wprnwU) > HHzpGO a> UOUw0HWm DaUHS a H H x W a ,3H 0- w x m u FCP: xHH aHH>+m0Hz0; O H cL w3a z 2us9z azm mW (DUwmH maFC NP;wW z 9 H amH as HDUwmw mww xa Om zmw (0 •HH;3(D 0Um x H u wwUH WDwzOa ha p0 L7 z0 a H 0 z)Hm4mxz[v< UHHHZ W HHDZ❑[„ZFZ� as WUZF fro g0 WmU SH ❑OaHmH0 OW C4 0 0 Z Z H2ZxmXH H>m 04 Mf4Z4a,a>m❑ Z H H WZW>+ P +9a<n 4+HW WP 04x49 9W�9:HgNH UW3❑ U)DwHHxww0 F:�❑Pa 124 W >mPamU Uam00Pxp w w m w r4 Q 9 0r p U FcaHrxH3 U > >rzHU 3 H m0 Hm0 X wW F�HmZ ❑❑ amm \P;HOWHz Wfx�4H 4P:WwWmH QQU ❑w<m>+0:z90 H04ZmwwwWP>1WHWW HaMwwwUawU0PX wWFC 444 Wa> ,4 mH2a0xW0- xxUUHWaa WaQ❑4<0X gHOm NU NN x2 x z w W W044PZHOFCrxU ❑mxHHHHmZaaZ0H a P mm2HFC WHHaH>+a < 12) QZr4 xO4nZD aUP:P:GaGa HOH0W 01 U WDD P:2> -iH1'4 Z x %0ZW >Q H H H h h h X 3 X X 2 X z 3 Z Z 0 0 0 O a a a a a a O O O m M W p E> 3 3 3 3 k O FC 4 g M M M u) r H x H w x w J4 a Q r aN O U r O Ga > O 1 fx > o E a� H Ln Oa 0 U z H H U) H a S4 H 0 U +-) z U) �D •H O xU xw U H N O 4 (,q U\ H H H O �r W M U) m >-I H U) .. H H H U w zH O zN H \ 44 r- 0 U) U H FC 0 H N 01 a'OOOOMlOOM00 W dlH N a"OOwOOdw0000000�OM OOOrO�nOONNO�nM OHN00N0wo- Q' woorHmmm000Ln oHMw00000NNN00NmoNoomLn4mr O 3 NN o000O nw 011n 00 wOr M00 OO C OC N OD nOwHMO w 0l O w Ln Nw 61 O wNHNNHMM w - Lr OJ m N H O)000)Ln w0) Ln Lo H M N Ln w N Ln Ln Ln v cr Ln -f O O H N 61 11 HN �' MwH Nwr w07 0) N w Iv IM wIv r Ln N io) w HM H d'H 0)HN H N M r d M O 0 O H H w H Q x U W x U x U W x U i OQ 0 W FC 0 z H x U W x U x x z z F[; < m W w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w 0 w w w w w w w 0 w w 0 w w 0 H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ w 0 0 w w w w w 0 w w w w w w w w 0 0 10 w w w w w w w w w w w w w w w 0 w w w w w w l0 w w w w O O o 0 O o O O o o O o 0 0 o 0 0 0 O O 0 0 O O O 0 0 0 O O O 0 o O 0 O 0 0 0 o O o 0 0 0 O O H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H 0 0 o 0 0 0 O O O O O 0 O O O O o 0 O 0 0 0 o O o 0 o o o o O o o o O o o o o o o o o o o O o O OH N M d' Ln w r M M O H N M l;v LOW r w m O H N M Q' 4w r m 0\ O H N M Q' un w r O m O H N M d• N H N N N N N N N N N N M M M M M M M M M (n v a' Td' T T�v U) N N N Ln u-) u) Lo ern Lo ww w'9 w r r r r r r r r r r r r r I- r r r r rr r r r r r r r r r I-. r r r r r r r r r r r r r r r rr r r- 0) m 0) 0) 0) 0) 0l 0) 0) 0) 0) 0) 01 m 01 01 m G) 01 Ol 01 dl Ol Ol 61 Ol Ol Ol 61 6l dl 61 m 0) 0) m 01 0) 0) m dl m 0) 01 0) 61 0) Lo Ln Lo Ln U) n N Ln Lo n n Ln to U) to Ln N N o 4 Lo Ln N Lo U) Ln o Lo o N Ln N N u) N N Lo N Lo Ln U) N N Ln N N Lo H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H z N a H W u £ FC Z . H Fc Ix �R:U U Hfz0 Om Ha 0 P a O O UU) c7Q4 Ua >FCU HQ DO U[.+ o 2 U Uzzw zHHza Pzu as 1 U 0 z> O Ha H H w W r�U) OH Z0xU) UzaOZ z U)H Fc >H H a w woxx z U)z XOH H H g H < >10 W HU)U) 0 5 U) 0 0 FC>+U FC0 x 0 m z (D 0ZE-+N q UFCCC Oi0LHZUWH `Z+ CLUE Z W H Ei W 44 O w z2H <2 NH Hfli Ww WnCYHHH H u HFCp w U 0HFf, HNz00 NFC >0Z0MZZN4ZZM ZHx>4 zZ UWO H w < a N azWZUC4 ,7CGW Za4W<4Wg PF:4< 7 U) HQUNU)\a Z < M 44WHH 9QZH HHUZ O MOz Wf4pC4 " U)HHxNZ fx Fa )04ww0>�HNN 4100 U) •xwD Ha 0 1x4W H NH u)0MW WHxWOU2H W W 054UHU)X H:k 0FgWHU)p4401 O 1 r-4 W>+HZjl;J% UFC>ZZ WU)W w 0 Z x WaHxHP; WU)a w004Hw Ww W < x M 0 H [uWHHaf-i XU04 W UM yFGwfxzWH w 0 Z % Q>+>- Q0. El U' ( UMZU)x MU0<44FC U)ZH H C7U)aNZ WH "044>WZP�WUZZ ZHH FC <Z w QUU N\OaP; W Ha 5> -iz>+W D xN44HHH0 w W FcPxu0z0hw> >�xhaHzaw z 0HWa fn Ox HHU)WO \HUWWH a4U)hW UN 9 -,0000\H3 H 0 x z Hx u < Pf C Z W Hx zw2 Umw >i0H\Q HH90.'WO Z7CQ[QH W MQHHWZU I HHON waIMWxHwWZM \��9 I FCu)ZWO1 lZfxx0HWOFCaazxQZaHXHa(4<FgWWU wHx a U)WXwx0WFCHZF�z W W0WHxfxaaafZFCZQHNFLZ WnU0<>' X Qz90zmzxaxOzHX x3H0 X Z(4<9WW W W400xQD<<W xx000xPxWU0XHHa W'V90000ZZ04 0H<< < 9 9 9 M M M MC Q WMMMUU000UUUUQW WW 4+k �W000 Xa! xHHHhhxa£ v M M (n m H x 0 H w x w FC 0 H d P7 a D r aN O U r 0 w > O i fx >+ o H �r H � Ua c� z H H H a �a i4 H 0 U +1 z U) a �O xU k' 10 U H 00 ,C, N U\ H H \ H 0 W M H .. U) m >+ H H aH 54 H U w zH FC o Z N H \ G.. r 0 U H �o H Hd'O r H m O m in M M 0010 m O o m N O M OOOO(n mN v z crrOHIZ 00 LO 0)NMN0 m1010rN0mm000lomr m a O NOOMm0JOd,C M1 NOOOOHm TlOrrm 0Nmm0') 1- 0CUOmrMLnmHmmrcMH n0IT0m10mMN m N IT O H (`') H H O H M H N l0 in -T H O m r o 0 11 N LO r M H NM H Hl0 Hrct' H w N Q x U W x U U W x U H z O O Q U z H x U W x U x x z z W CO 10 10 to �o to Q0 w Q0 110 w 14 ID 10 w 10 �o Q0 �o w lfl w w 1fl ID 0 w to w 0 H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ 10 10 10 w 0 Q0 10 w w 1-0 10 w 0 10 10 w 0 Q0 10 10 10 10 10 19 10 10 10 0 w 19 0 0 0 0 O 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H 000000000000000000000000000000 10 r m m O H N M�T u) kD r m m O H N M d' u) to r m m O H N M C' N 10 10 10 10 r r r r r- 0') 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 Ln in in In U) in N u) N Ln Ln in N u) n N Ln N 4 N ul N N Ln N Lo to u) N Lo H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H w O a4 13� Z M U) Q U W H H a a a U OH O H \Z u) 00--W >i W H u U H u MU)az z W >+ D 0 PL U W z a W W H < x u 4 01 U)WHa z H H»F(,' z U) a a,DZ04 W p2olW H a U z z O X a H a H U H (f) w U) Z co < U) H H z a O D w Q D x U a H- a 0 W U>tnU) oa Q Ong z 2204 x x r�W W 0U) H W WDO Hulww H a3H(7 04 Q4 Ox Z W LZI >+H u cn0Urnz \H00 HZPZWHHHa0Z HDUZZ WFC WH> z<9 >+ 0 WHH04 a u)0 U)H2 'Z M z W H z U M>+ H F[, z FC 13 !r4>4p 9F4C)< Haa 3H DHHp,'SD - a49 FC,x W W 0 H QUHaHFCQwaw rx 02Y �5: w0aaH2 aUS >a> a p H 0 u) xup;3: CzHzWau)Dz0 W W w< HQ (11) U) HaHWH>+H0x\WH UU)QxOUx W0 44jlx00W WxUfxHaW\W QQHx ,4H W NN m9 PC P�,i:zQHwmn 4zWU) WHHlx<WOHQ W WHHa0 zQ f= gg j H W W W HW 0 FCh000HHH13:ZHHHHHUW XXXXXZOW a 04 a, a4 ZOaMViU WWED$$33$XN m r O H 1 M m H LO Cl) Cl) H x H w x w F:�U H ma a r a N O U r 0 44 > O 1 0Z ? o H a' H Ln Ua 0 0 z H H H a �a i4 H O U +� z �x �O xU U ri N o ,C� N U H 0 r W t''> H .• U) rn aH H U zH �a z H \ w r 0 U� U H 90 H z Q O w H Q x U W x U x U W x U x O Q z w x z 0.l rn r O M M rn H a E- E- 0 H H a 0 a W a 0 w O 0 Q W H z H a Q a O U w a Cl) M co w E 0 x� 0 a H N W FC xU W Fc a H W r � N ,-a r 00 U U) w a 0 o O t,O ;T >i O Ln Haa H U (n I I U) E-i M Ln O H r m 0 NM O O'T 0 W of M M r d' m OLr) N Q' 0 M O 110 Ei 110 l0 I l0 l0 N 0) O O m m cv O O r ;T M m N x M O O in N m d' d' d' O Ol 'z, 0) m W > 01 10 M m OD (Y) 0 0 Ln Ln 0 0) Ln a' M Ln M (3) N m1 o 0 M 00 M 00 N r r r �I W d' In Ol r 0) N M O M N in r H H rl Ln M r M lo -v vH co 01 co dl O W O O 0 M O 0\ N O l0 In d' O ri l0 O H M 00 0) H Lo r d' M dl H H N r r-I U. H H 41 a a !q ',_J 00 H H r-I r-I Ln N M Ln O r rl O ul 01 N H M IT M 'J M M •rl P] M H cr 0) M co M H lzp M W M M x (j) ra v Ln r rn (n m 0) H H Zx Ux OHW W W< Ga W W U I WH zH �WNa >C7Xa >+ Uu]H N I � a z< D a H W 1 a w H z Z Z U 1 U I 04 00z0 0 H m I Q W H H H 0 FCW W n M M I I H 1 I I Q hz a I w awa w Q H H w mtoa°azzz � I Zx Ux OHW W W< Ga W W I WH zH �WNa >C7Xa >+ Uu]H I � a z< D a H W 1 a w H z Z Z U 1 I 04 00z0 0 H m I Q W H H H 0 FCW W I O z H w M Z O Q 1 U�:) a a H z H h 1 H a H H O z< z H H< (Y H H W U) 0 I z Zr I WFC<ZFCH aW0XZ4W I H UWH?+a I WM I ;>a(4 HaU) aW >wla, >1 �+ Q M0ZMa I 0 H •• I WFgE, 4H 4Fc axwa0HH a<,H I U M01 ,Z I QHU) H•J 0 >a4WaF�QHHQa E aP cZQ I U >+ r-I O I ',>H >w 014wx> Haaazw w 9 0w I � M•• H I ? z Q `-1 x a a H O N H M H H a 2: z 0 H H W m HgHHgW U< aH04 HHG+W 0 C7HDU Q I (D x Fa r1 a 1 H >i MN 44 Il a D Fcaaa m Uaz4mz z I z z H I F� '7_, H Q H a I H< Z 01 U< W a < H X H< D H •• a l Q >FCW >W<OaPPHHW Hazwx0zzQaaa W •• I �' a U�.o a u wax HxaaWW H wHWwzanWHa0Ha a w1 U zr1 < M I Z 9 CO OAHW aNaaNE SN0(Y ZH44Z W $o U W 1 w0FCQE- <HwaQ <9< H<<WWHHW r-I nzOZ a a a Q 1 U U a W W N U a FC x W U U U U 3 M a M 4 M U CQ H U H F(; z I U FC H\ a G, r a O Q Q I U�\ z Z 1 HHM T N M In O rI N M Ln O H 0l O H N m T m N H to o v H ,z, 'z, I Z H Uri 0 'a 1 0000 H ri N C to r r H N M M IO O O O O 000 O N W N O U FC,O w 44 1 rI N N N N N N N N m m IT T d' a''3' 101010 to 10 l0 r r r w m H 0.1 0.1 I w n M M