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cp11-23-2010 cAGENDA REGULAR MEETING — HUTCHINSON CITY COUNCIL TUESDAY, NOVEMBER 23, 2010 1. CALL TO ORDER — 5:30 P.M. 2. INVOCATION — Riverside Assembly of God Church 3. PLEDGE OF ALLEGIANCE 4. PUBLIC COMMENTS 5. MINUTES (a) REGULAR MEETING OF NOVEMBER 9, 2010 Action — Motion to approve as presented 6. CONSENT AGENDA (Purpose: onlyfor items requiring Council approval by external entities that would otherwise ave een e egate tot e City Administrator. Traditionally, items are not discussed.) (a) RESOLUTIONS AND ORDINANCES 1. RESOLUTION NO. 13809 - RESOLUTION AUTHORIZING TRANSFER OF FUNDS FROM ENTERPRISE FUNDS TO 2010 IMPROVEMENT BOND CONSTRUCTION FUND AND 2010 CONSTRUCTION FUND TO GENERAL FUND AND CAPITAL PROJECT FUND FOR ENGINEERING AND ADMINISTRATION FEES • 2. ORDINANCE NO. 10 -0662 — AN ORDINANCE AUTHORIZING THE SALE OF MUNICIPALLY OWNED REAL PROPERTY TO SILVER LAKE CAPITAL PARTNERS, LLC; PURCHASE OF LAND FROM SILVER LAKE CAPITAL PARTNERS, LLC AND USE OF COMMUNITY IMPROVEMENTFUND (b) PLANNING COMMISSION ITEMS CONSIDERATION OF AMENDING ZONING ORDINANCE SECTION 154.118 ADDING LANGUAGE TO THE FENCE REQUIREMENTS REGARDING FENCE SETBACKS FROM TRAILS WITH FAVORABLE PLANNING COMMISSION RECOMMENDATION (WAIVE FIRST READING AND SET SECOND READING AND ADOPTION OF ORDINANCE NO. 10- 0663 FOR DECEMBER 14, 20 10) (c) CONSIDERATION FOR APPROVAL OF ITEMS FOR SCHOOL ROAD NW IMPROVEMENT PROJECT (LETTING NO. 1, PROJECT NO. 11 -01) — ORDERING PREPARATION OF REPORT ON IMPROVEMENT AND CALLING HEARING ON IMPROVEMENT (d) CONSIDERATION FOR APPROVAL OF ITEMS FOR PLAZA 15 PARKING LOT IMPROVEMENTS, CITY PARKING LOT B RECONSTRUCTION AND TRUNK HIGHWAY 15 AND SOUTH GRADE ROAD INTERSECTION RECONFIGURATION PROJECTS (LETTING NO. 5, PROJECT NO. 11 -06, 11 -07 AND 11 -08) — ORDERING PREPARATION OF REPORT ON IMPROVEMENT, RECEIVING REPORT AND CALLING HEARING ON IMPROVEMENT (e) CONSIDERATION FOR APPROVAL OF ISSUING 2011 ANNUAL LICENSES (f) CONSIDERATION FOR APPROVAL OF USE OF FACILITIES AGREEMENT BETWEEN HUTCHINSON SCHOOL DISTRICT AND CITY OF HUTCHINSON FOR 2010 -2012 CITY COUNCIL AGENDA -- NOVEMBER 23, 2010 (g) CONSIDERATION FOR APPROVAL OF ISSUING OFF -SALE 3.2 MALT LIQUOR LICENSE TO NORTHERN TIER RETAIL LLC (NEW OWNERS OF SUPERAMERICA) (h) CONSIDERATION FOR APPROVAL OF ISSUING TRANSIENT MERCHANT/PEDDLER LICENSE TO JERILYN BREITKREUTZ (i) C LAIMS, APPROPRIATIONS AND CONTRACT PAYMENTS Action — Motion to approve consent agenda 7. PUBLIC HEARINGS — 6:00 P.M. - NONE 8. COMMUNICATIONS RE UESTS AND PETITIONS (Purpose: to provide Council with information necessary to cra t wise pa icy. A ways oo ing toward t e uture, not monitoring pst) (a) PRESENTATION ON CITY OF HUTCHINSON WELLNESS PROGRAM — WELLS FARGO ADVISORS Action — (b) UPDATE ON HRA HOUSING AND RADON TESTING — JEAN WARD, HRA EXECUTIVE DIRECTOR Action - 9. UNFINISHED BUSINESS • (a) CONSIDERATION FOR APPROVAL OF PROPOSED CHANGES TO THE BY -LAWS OF HUTCHINSON HEALTH CARE Action - 10. NEW BUSINESS (a) CONSIDERATION FOR APPROVAL OF AWARD OF GUARANTEED ENERGY SAVINGS CONTRACT TO AMERESCO, INC. Action — Motion to reject — Motion to approve (b) CONSIDERATION FOR APPROVAL OF SETTING CITY COUNCIL ORGANIZATIONAL MEETING FOR JANUARY 3, 2011 Action — Motion to reject — Motion to approve (c) CONSIDERATION FOR APPROVAL OF R -BAN FINANCING FOR SENIOR CARE HOUSING PROJECT Action — Motion to reject — Motion to approve (d) CLOSED SESSION PURSUANT TO MINNESOTA STATUTE 1P.05, SUBD, 3(C) TO DISCUSS PROPERTY ACQUISITION OF PROPERTY LOCATED AT 105 2' AVENUE SE Action — Motion to reject— Motion to approve •11. GOVERNANCE ( Purpose: to assesspast organ izationalperformance, developpolicy that guides the organization and Council and manage the logistics of the Council. May include monitoring reports, policy development and governance process items.) 2 CITY COUNCIL AGENDA — NOVEMBER 23. 2010 (a) PLANNING, ZONING AND BUILDING DEPT. MONTHLY REPORTS FROM SEPTEMBER AND OCTOBER 2010 (b) HUTCHINSON PLANNING COMMISSION MEETING MINUTES FROM OCTOBER 19, 2010 (c) CITY OF HUTCHINSON FINANCIAL REPORT FOR OCTOBER 2010 12. MISCELLANEOUS 13. ADJOURN • F- 1 LJ AGENDA REGULAR MEETING — HUTCHINSON CITY COUNCIL TUESDAY, NOVEMBER 23, 2010 1. CALL TO ORDER — 5:30 P.M. 2. INVOCATION — Riverside Assembly of God Church 3. PLEDGE OF ALLEGIANCE 4. PUBLIC COMMENTS 5. MINUTES (a) REGULAR MEETING OF NOVEMBER 9, 2010 Action — Motion to approve as presented 6. CONSENT AGENDA (Purpose: only for items requiring Council approval by external entities that would otherwise have been delegated to the City Administrator. Traditionally, items are not discussed.) (a) RESOLUTIONS AND ORDINANCES 1. RESOLUTION NO. 13809 - RESOLUTION AUTHORIZING TRANSFER OF FUNDS FROM ENTERPRISE FUNDS TO 2010 IMPROVEMENT BOND CONSTRUCTION FUND AND 2010 CONSTRUCTION FUND TO GENERAL FUND AND CAPITAL PROJECT FUND FOR ENGINEERING AND ADMINISTRATION FEES 2. ORDINANCE NO. 10 -0662 — AN ORDINANCE AUTHORIZING THE SALE OF MUNICIPALLY OWNED REAL PROPERTY TO SILVER LAKE CAPITAL PARTNERS, LLC; PURCHASE OF LAND FROM SILVER LAKE CAPITAL PARTNERS, LLC AND USE OF COMMUNITY IMPROVEMENTFUND (b) PLANNING COMMISSION ITEMS (c) CONSIDERATION FOR APPROVAL OF ITEMS FOR SCHOOL ROAD NW IMPROVEMENT PROJECT (LETTING NO. 1, PROJECT NO. I 1 -01) — ORDERING PREPARATION OF REPORT ON IMPROVEMENT AND CALLING HEARING ON IMPROVEMENT (d) CONSIDERATION FOR APPROVAL OF ITEMS FOR PLAZA 15 PARKING LOT IMPROVEMENTS, CITY PARKING LOT B RECONSTRUCTION AND TRUNK HIGHWAY 15 AND SOUTH GRADE ROAD INTERSECTION RECONFIGURATION PROJECTS (LETTING NO. 5, PROJECT NO. 11 -06, 11 -07 AND 11 -08) — ORDERING PREPARATION OF REPORT ON IMPROVEMENT, RECEIVING REPORT AND CALLING HEARING ON IMPROVEMENT (e) CONSIDERATION FOR APPROVAL OF ISSUING 2011 ANNUAL LICENSES (f) CONSIDERATION FOR APPROVAL OF USE OF FACILITIES AGREEMENT BETWEEN HUTCHINSON SCHOOL DISTRICT AND CITY OF HUTCHINSON FOR 2010 -2012 (g) CONSIDERATION FOR APPROVAL OF ISSUING OFF -SALE 3.2 MALT LIQUOR LICENSE TO NORTHERN TIER RETAIL LLC (NEW OWNERS OF SUPERAMERICA) (h) CONSIDERATION FOR APPROVAL OF ISSUING TRANSIENT MERCHANT/PEDDLER LICENSE TO JERILYN BREITKREUTZ CITY COUNCIL AGENDA — NOVEMBER 23, 2010 (i) CLAIMS, APPROPRIATIONS AND CONTRACT PAYMENTS Action — Motion to approve consent agenda 7. PUBLIC HEARINGS — 6:00 P.M. - NONE 8. COMMUNICATIONS, REQUESTS AND PETITIONS (Purpose: to provide Council with information necessary to craft wise policy. Always looking toward the future, not monitoring past) (a) PRESENTATION ON CITY OF HUTCHINSON WELLNESS PROGRAM — WELLS FARGO ADVISORS Action — (b) UPDATE ON HRA HOUSING AND RADON TESTING — JEAN WARD, HRA EXECUTIVE DIRECTOR Action - 9. UNFINISHED BUSINESS (a) CONSIDERATION FOR APPROVAL OF PROPOSED CHANGES TO THE BY -LAWS OF HUTCHINSON HEALTH CARE Action - 10. NEW BUSINESS (a) CONSIDERATION FOR APPROVAL OF AWARD OF GUARANTEED ENERGY SAVINGS CONTRACT TO AMERESCO, INC. Action — Motion to reject — Motion to approve (b) CONSIDERATION FOR APPROVAL OF SETTING CITY COUNCIL ORGANIZATIONAL MEETING FOR JANUARY 3, 2011 Action — Motion to reject — Motion to approve (c) CONSIDERATION FOR APPROVAL OF R -BAN FINANCING FOR SENIOR CARE HOUSING PROJECT Action — Motion to reject — Motion to approve (d) T Y STATUTE D. E (C) TO DISCUSS PROPERTY ACQUIS T ON OF PR P R LOCATED AT 05 2 'AVENUE Action — Motion to reject— Motion to approve 11. GOVERNANCE (Purpose: to assesspast organizationalperformance, developpolicy thatguides the organization and Council and manage the logistics of the Council. May include monitoring reports, policy development and governance process items.) (a) PLANNING, ZONING AND BUILDING DEPT. MONTHLY REPORTS FROM SEPTEMBER AND OCTOBER 2010 (b) HUTCHINSON PLANNING COMMISSION MEETING MINUTES FROM OCTOBER 19, 2010 (c) CITY OF HUTCHINSON FINANCIAL REPORT FOR OCTOBER 2010 2 CITY COUNCIL AGENDA - NOVEMBER 23, 2010 12. MISCELLANEOUS 13. ADJOURN MINUTES REGULAR MEETING — HUTCHINSON CITY COUNCIL TUESDAY, NOVEMBER 9, 2010 I . CALL TO ORDER — 5:30 P.M. Mayor Steve Cook called t e meeting to order. Members present were Jim Haugen, Eric Yost, Bill Arndt and Chad Czmowski. Others present were Gary Plotz, City Administrator, and Marc Sebora, City Attorney. 2. INVOCATION — Due to the absence of a pastor, the invocation was dispensed. 3. PLEDGE OF ALLEGIANCE 4. PUBLIC COMMENTS 5. MINUTES (a) REGULAR MEETING OF OCTOBER 26, 2010 Mayor Cook noted that the minutes in the Miscellaneous section need to be changed to reflect that the rental of the tractors for the leaf vacuum is $5000 and not $35,000. It was also noted that the minutes reflect that Bill Arndt was absent, and he was not. Motion by Czmowski, second by Cook, to approve the minutes as presented with the revisions noted above. Motion carried unanimously. 6. CONSENT AGENDA (Purpose: onlyfor items requiringCouncil approval by external entities that would otherwise ave eett e egate tot e City Administrator. Traditionally, items are not discussed.) (a) RESOLUTIONS AND ORDINANCES RESOLUTION NO. 13802 — A RESOLUTION AUTHORIZING DEFERRED ASSESSMENT 2. RESOLUTION NO. 13803 — A RESOLUTION AUTHORIZING DEFERRED ASSESSMENT (b) CONSIDERATION FOR APPROVAL OF ISSUING COMMERCIAL HAULING LICENSE TO RENVILLE SIBLEY SANITATION (c) CONSIDERATION FOR APPROVAL OF ISSUING SHORT -TERM GAMBLING LICENSE TO HUTCHINSON WRESTLING CLUB ON FEBRUARY 27. 2011 (d) CONSIDERATION FOR APPROVAL OF ISSUING SHORT -TERM GAMBLING LICENSE TO HUTCHINSON EAGLES 4441 FOR APRIL 16, 2011 (e) CONSIDERATION FOR APPROVAL OF ISSUING CATERER'S PERMIT TO HUTCHINSON EAGLES AERIE 4441 FOR NOVEMBER 18, 2010 (f) CONSIDERATION FOR APPROVAL OF SALE OF CITY -OWNED VEHICLES /EQUIPMENT (g) CLAIMS, APPROPRIATIONS AND CONTRACT PAYMENTS (h) CONSIDERATION FOR APPROVAL OF SHORT -TERM GAMBLING LICENSE FOR ST. ANASTASIA CATHOLIC CHURCH ON DECEMBER 16, 2010 Motion by Haugen, second by Arndt, to approve the consent agenda. Motion carried unanimously. 7. PUBLIC HEARINGS — 6:00 P.M. - NONE S- (Q) CITY COUNCIL MINUTES— NOVEMBER 9, 2010 8. COMMUNICATIONS RE UESTS AND PETITIONS (Purpose: to provide Council with information necessary to era t wise pot icy. A ways oo ing toward t e uture, not monitoring past) (a) UPDATE ON SOUTHWEST INITIATIVE FOUNDATION ACTIVITIES— GARRETT BACKES Garrett Backes, Southwest Initiative Foundation (SWIF), presented before the Council. Mr. Backes provided a presentation on the activities SWIF has been involved in from July 1, 2009 to June 30, 2010. SWIF is a regional community foundation serving 18 counties in southwest Minnesota. Mr. Backes reviewed S WIF's assets, mission, and initiatives. Initiatives include economic advancement, community & leadership development, building regional capacity and philanthropy. Mr. Backes also noted that SWIF's 25 -year anniversary will be in 2011. (b) DISCUSSION OF SNOW EMERGENCY ORDINANCE INFORMATION AND IMPLEMENTATION John Olson, Public Works Manager, presented before the Council. Mr. Olson explained that information on the snow emergency ordinance will be going out in residents' utility bills this week. In addition, the information is posted on the City's web site and residents may call 234 -5699 to find out if a snow emergency is put into effect. Mayor Cook suggested sending a reminder notice out via Nixle after the initial notification is put out. Large amounts of snow, wind and/or icing would cause a snow emergency to go into effect. 9. UNFINISHED BUSINESS (a) CONSIDERATION FOR APPROVAL OF "REVISED" JOB EVALUATION /COMPENSATION STUDY PROJECT Gary Plotz, City Administrator, presented before the Council. Mr. Plotz noted that previously the Council had voted to not institute a job evaluation/compensation study. However, since that vote, the cost of the study has been reduced somewhat and some feedback has been received from Council Members indicating that perhaps the study could be reconsidered. Brenda Ewing, Human Resources Director, presented before the Council. Ms. Ewing explained that the pay equity piece can be completed by staff using software provided by the State of Minnesota, hence a reduction, as well as a reduction in the compensation analysis. A further reduction could be had if the consultant would not complete a review of the performance -based pay. Part of the study would be to review the comparable city listing currently in place. Discussion was held regarding comparing benefit packages with other cities. Ms. Ewing stated she could gather data comparing benefit packages amongst other cities. Motion by Czmowski, second by Cook, to approve revised job evaluation/compensation study project using revised Quotation 1 which includes a revised review of the performance -based pay. Roll call vote — Haugen — aye; Arndt — nay; Yost — aye; Czmowski — aye; Cook — aye. Motion carried 4 to 1. 10. NEW BUSINESS (a) CONSIDERATION FOR APPROVAL OF ITEMS FOR ENERGY CONSERVATION PERFORMANCE: CONTRACTING "ENERGY SERVICES AGREEMENT" WITH AMERESCO Kent Exner, City Engineer, presented before the Council. Mr. Exner explained that an agreement has been prepared for the Council's consideration. This agreement encompasses a lighting overview that describes the lighting improvements and their associated benefits, as well as a project cost summary. The Council's action for this evening is to consider approving a Public Notice of Award to consider the award of a guaranteed energy savings contract to Ameresco, Inc., for the implementation of energy conservation and facility improvement measures. The actual agreement will be considered for approval at the next Council meeting. If the contract is awarded, a Notice to Proceed and Energy Services Agreement will need to be executed. Upon execution, Ameresco will then proceed with scheduling completion of the project. The start date of the project will be subject to the availability of Hutchinson Utilities' rebates. Council Member Haugen asked about project delivery. Mr. Exner explained that Ameresco received various quotes at the time they submitted their project scope and they will re- examine the quotes they received. Mr. Exner noted that the payback is expected to begin to be seen in five years. CITY COUNCIL MINUTES — NOVEMBER 9. 2010 Motion by Arndt, second by Cook, to authorize Publication of Notice of Award to consider the award of the agreement with Ameresco at the November 23, 2010, City Council meeting. Motion carried unanimously. (b) CONSIDERATION FOR APPROVAL OF LAND SALE TO WARRIOR MANUFACTURING AND LAND PURCHASE FROM WARRIOR MANUFACTURING AS REQUESTED BY HUTCHINSON ECONOMIC DEVELOPMENT AUTHORITY Miles Seppelt, EDA Director, presented before the Council. Mr. Seppelt explained that Warrior Manufacturing has requested that the City buy back the 10.5 acre lot it purchased from the City in December of 2009. In its place, Warrior is seeking to purchase the 3.18 acre lot to the east of their current facility. Warrior has determined the 10.5 acre lot was too bid for their needs and that the 3.18 acre east lot is a better fit for their future growth. The EDA is recommending and requesting approval of this land venture. When the 10.5 acre lot is sold in the future, those funds will be returned to the Community Improvement Fund. An ordinance is before the Council for their consideration for the transactions. The sale of the 3.17 acres of city land to Warrior Manufacturing for $40,000 per acre. The City will purchase the 10.49 acres from Warrior Manufacturing for a total of $206,976 along with the assessments in the amount of $108,024, totaling $315,000. $187,885 would be used from the City's Community Improvement Fund. Mayor Cook suggested that Warrior Manufacturing acquire any fees that are necessary as part of the transactions. Mr. Seppelt also noted that the transaction should actually be in the name of Silver Lake Capital Partners, LLC, whom is the owner of Warrior Manufacturing. Motion by Czmowski, second by Cook, to waive first reading and set second reading and adoption of Ordinance No. 10 -0662 for November 23, 2010, including acquisition of closing fees by Silver Lake Capital Partners, LLC (Warrior Manufacturing). Motion carried unanimously. (c) CONSIDERATION FOR APPROVAL OF RESOLUTION NO. 13804 - A RESOLUTION DESIGNATING A PORTION OF THE CITY'S GENERAL FUND FOR THE PURPOSE OF ADDITIONAL MOSQUITO SPRAYING Marc Sebora, City Attorney, presented before the Council. Mr. Sebora explained that he drafted a Resolution based on the action of the Council at the last meeting requestin& that a mosquito spraying reserve fund be established. $15,000 from the City's general fund will be designated for additional mosquito spraying applications and the City Administrator can make the approval for the disbursements of monies. The initial $15,000 will come from the fund balance in 2010 and will essentially be a separate line item in the 2011 budget. This $15,000 is in addition to the $35,000 that is already levied. Council Member Arndt raised some concerns with the additional funds and he suggested having staff be trained to operate the equipment. It was noted that by establishing a separate fund, it authorizes staff that authority to act in a timely manner and not have to wait for a Council meeting for approval of additional applications. Motion by Czmowski, second by Cook, to approve Resolution No. 13804 creating a mosquito spraying reserve account. Roll call vote was taken: Haugen — nay; Arndt —nay; Yost —aye; Czmowski —aye; Cook — aye. Motion carried 3 to 2. (d) CONSIDERATION FOR APPROVAL OF AMENDING HUTCHINSON CITY POLICY 3.23 — CONFERENCES AND SEMINARS (OUT OF STATE) Gary Plotz, City Administrator, presented before the Council. Mr. Plotz explained that the revised policy allows for out -of -state travel for Creekside personnel within a 450 -mile radius. The purpose of the travel would be for business purposes only and not for training or conferences. These business purposes could include quality control, marketing, new product development, equipment evaluation and customer development and service. The out -of -state travel is subject to approval by the City Administrator. Motion by Arndt, second by Czmowski, to approve amending Hutchinson City Policy No. 3.23 pertaining to out of state conferences and seminars. Motion carried unanimously. (e) CANVASSING OF 2010 MUNICIPAL ELECTION RESULTS Marc Sebora explained that the municipal election results must be canvassed by the City Council as noted in state law. The Council, specifically Jim Haugen, Eric Yost and Chad Czmowski read the election results per precinct. CITY COUNCIL MINUTES — NOVEMBER 9, 2010 Motion by Haugen, second by Yost, to certify City of Hutchinson election results as correct. Motion carried unanimously. 11. GOVERNANCE (Purpose: to assesspast organizationalperformance, developpolicy thatguides the organization and Council and manage the logistics of the Council. May include monitoring reports, policy development and governance process items.) (a) RESOURCE ALLOCATION COMMITTEE MEETING MINUTES FROM OCTOBER 5, 2010, AND NOVEMBER 2, 2010 (b) WEED NOTICE MONTHLY REPORT FOR OCTOBER 2010 Council Member Arndt asked if there are "problem properties ". Kent Exner explained that the environmental specialist develops good working relationships with property owners on issues related to weeds. (c) HUTCHINSON HOUSING & REDEVELOPMENT AUTHORITY BOARD MINUTES FROM SEPTEMBER 21, 2010 Council Member Yost noted that the Secretary /Treasurer is listed as two different individuals in the minutes. Staff will research. 12. MISCELLANEOUS Council Member Haugen — Mr. Haugen inquired if the Council needed to evaluate itself in compliance with Policy Governance. It was noted that that does need to be done and the proper procedure to do so will be researched. Gary Plotz — Mr. Plotz provided an update on progress made on the skate park lighting issue. Kent Exner — Mr. Exner provided an update on the Adams Street improvement project and the senior housing project. Mayor Cook — Mayor Cook asked if a report could be given on the current foreclosures for 2010. The HRA Director will provide an update to the Council. Mayor Cook asked for an update from the Finance Director on where the funds will be earmarked from the recycling credit. He also asked that the 2011 fee increases be placed on the next Council agenda. Motion by Arndt, second by Cook, to set enterprise fund budget workshop for November 2' ), 2010, at 4:00 p.m. Motion carried unanimously. Reminder of Town Hall Budget Meeting on November 18, 2010, at 6:00 p.m. 13. ADJOURN Motion by Arndt, second by Cook, to adjourn at 7:20 p.m. Motion carried unanimously rd RESOLUTION 13809 TRANSFERRING FROM WATER, WASTEWATER, STORM WATER FUNDS TO 2010 IMPROVEMENT BOND CONSTRUCTION FUND AND 2010 IMPROVEMENT BOND CONSTRUCTION FUND TO GENERAL FUND 6 CAPITAL PROJECTS FUND FOR ENGINEERING AND ADMINISTRATION FEES BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF HUTCHINSON, MINNESOTA: THAT, $32,285 is hereby transferred from the Water Fund to the 2010 Construction Fund. THAT, $114,523 is hereby transferred from the Sewer Fund to the 2010 Construction Fund. THAT, $60,000 is hereby transferred from the Storm Water Fund to the 2010 Construction Fund. THAT, $371,023 is hereby transferred from the 2010 Construction Fund to the General Fund for Engineering Fees. THAT, $63,546 is hereby transferred from the 2010 Construction Fund to the General Fund for Administration Fees. THAT, $63,546 is hereby transferred from the 2010 Construction Fund to the Capital Projects Fund for the purpose of Comprehensive Planning and topography mapping. THAT, said transfers are hereby effective and to apply to the 2010 fiscal year. Adopted by the City Council this 23rd day of November 2010. ATTEST: Gary D. Plotz City Administrator Steven W. Cook Mayor ORDINANCE NO. 10 -0662 AN ORDINANCE OF THE CITY OF HUTCHINSON, MINNESOTA, AUTHORIZING THE SALE OF MUNICIPALLY OWNED REAL PROPERTY TO SILVER LAKE CAPITAL PARTNERS, LLC; PURCHASE OF LAND FROM SILVER LAKE CAPITAL PARTNERS, LLC AND USE OF COMMUNITY IMPROVEMENT FUND THE CITY OF HUTCHINSON ORDAINS: Section 1. Warrior Mfg. has greatly exceeded its job creation and wage goals and is a valued corporate citizen of the City of Hutchinson and Warrior Mfg. has significant potential for future growth, which this transaction will greatly facilitate. It is in the interest of the City of Hutchinson to promote industrial expansion. The acquisition of a 10.5 acre lot from Warrior Mfg. will aid the City of Hutchinson in the recruitment of additional companies to the industrial park and funds utilized from the Community Improvement Fund will be repaid with the future sale of industrial park lots. Section 2. The City Administrator, Gary D. Plotz, or his designee is authorized to sign any and all documents on behalf of the City to effectuate the closing of this transaction. Section 3. THE CITY COUNCIL OF THE CITY OF HUTCHINSON, MINNESOTA, HEREBY AUTHORIZES AND DIRECTS THE FOLLOWING: 1. Sale of approximately 3.18 acres of industrial park land (Lot 1, Block 4, Energy Park North 2" Addition) to Silver Lake Capital Partners, LLC, for approximately $127,113.88. 2. Purchase of approximately 10.5 acres of land (Lot 1, Block 3, Energy Park North 2 "d Addition) from Silver Lake Capital Partners, LLC, for approximately $206,976 and payment of the remaining nine (9) years of assessments in the amount of approximately $97,221.60 plus interest. 3. Use of approximately $182,754.98 from the City's Community Improvement Fund to complete this transaction. 4. All fees arising from this transaction are to be paid by Silver Lake Capital Partners, LLC. 5. City staff shall take such actions as necessary to give effect to this ordinance. Section 4. This ordinance shall take effect upon its adoption and publication. Adopted by the City Council this 23`d day of November, 2010. ATTEST: Gary D. Plotz City Administrator Steven W. Cook Mayor (o (a)(2) F- I L r1 L_J Hutchinson yy�� Date: November2,2010 To: Honorable Mayor & City Council Prorn: Miles R. Sopped Economic Development Director RE Sale of land to Warrior Mfg and Purchase of land from Warrior Mfg, Background Warrior Manufacturing has requested that the City buy back the 10.5 acre lot it purchased from the City in December of 2009- In its place, Warrior is seeking to purchase the 3.18 acre lot to the east of their current facility. 0 Warrior has determined the 10.5 acre lot ultimately was too big for their needs and that the 3.18 acre east lot would be a better fit for the company's future growth. The EDA Board of Directors and the EDA Finance Team have reviewed this transaction thoroughly and are recommending and requesting City Council approval. Other Considerations Agreeing to this transaction will help facilitate Warriors expansion plans. • The 10.5 lot the city would acquire will be highly desirable from a development perspective. • When the 10.5 acre lot is sold in the future, those funds will be returned to the Community Improvement Fund. • Warrior Mfg. has met and greatly exceeded its job creation and wage requirements: Reguested Action • Enclosed in your packet is a resolution authorizing and directing the following actions: 1) Authorizing the sale of 3.17 acres of city land to Warrior Manufacturing for $40,000 per acre, totaling $127,113.88 2) Authorizing the purchase of 10.49 acres of land from Warrior Manufacturing for a total of $206,976 and payment of assessments on said land in the amount of $108,024. These together total $315,000. 3) Authorizing the use of approximately $187,885 from the city's Community Improvement Fund (CIF) to complete this transaction. 4) Directing City staff to take such actions as necessary to give effect to this resolution. I will be in attendance at the November 9' City Council meeting to make a short presentation and answer any questions you may have. In the meantime, if you have any questions or need additional information, please give me a call at 234 -4223 at any time. Thank you for your time and consideration. u L, (b)1 Jobs We es Total Com ensatlon Goal 10 $9.301 hour $10.231 hour Actual 38 $15.41 /hour $18.58 1hour • Enclosed in your packet is a resolution authorizing and directing the following actions: 1) Authorizing the sale of 3.17 acres of city land to Warrior Manufacturing for $40,000 per acre, totaling $127,113.88 2) Authorizing the purchase of 10.49 acres of land from Warrior Manufacturing for a total of $206,976 and payment of assessments on said land in the amount of $108,024. These together total $315,000. 3) Authorizing the use of approximately $187,885 from the city's Community Improvement Fund (CIF) to complete this transaction. 4) Directing City staff to take such actions as necessary to give effect to this resolution. I will be in attendance at the November 9' City Council meeting to make a short presentation and answer any questions you may have. In the meantime, if you have any questions or need additional information, please give me a call at 234 -4223 at any time. Thank you for your time and consideration. u L, (b)1 0 IJ MEMORANDUM DATE: November 17, 2010 for the November 23, 2010 City Council meeting TO: Hutchinson City Council FROM: Dan Jochum, Planning Director Bonnie Baumetz, Planning Coordinator SUBJECT: Consideration of Amendment to Zoning Ordinance Section 164.118 to add language to the fence requirements regarding fence setbacks from trails. Background: The purpose of this amendment is to add language to the fence ordinance that would basically create a two (2) foot setback from the trail to fences, walls, and other similar structures. The reason for amending the ordinance is to minimize any potential safety issues that may be caused by having a fence too close to a trail. Plannina Commission Meetina: The Planning Commission held a public hearing and considered the request at their November 16'" meeting. After discussion, the Commission recommended approval as amended with a 3 ayes to 1 nay vote. Recommendation: The Planning Commission recommended approval of the request and the attached ordinance. (a(b)1 11 F_ I L r1 LJ PUBLICATION NO. ORDINANCE NO. 10 -0663 AN ORDINANCE AMENDING CITY CODE CHAPTER 154; SECTION 154.118, TO AMEND LANGUAGE TO THE FENCE REQUIREMENTS ALONG TRAILS THE CITY COUNCIL OF THE CITY OF HUTCHINSON, MINNESOTA ORDAINS: Notice of public hearing was duly given and publication of said hearing was duly made to appear to the satisfaction of the City Council that it would be in the best interests of the City to amend the City Code, Title }CV: Land Usage, to amend Chapter 154, Section 154.118, to amend language to the fence requirements for properties along trails. § 154.118 FENCES AND WALLS. (A) In any zoning district, fences, walls, and hedges, may be built or planted, subject to meeting the following requirements: (1) Fences, walls, hedges, or other obstructions shall not encroach on any public right -of -way and must be a minimum of five feet from any of the rights -of -way (excluding alleys). In addition fences walls hedges landscapine or other obstructions within two (2) feet of the edse of trails are prohibited when the trails are not located in a right -of -way. (2) Fences and walls may be built up to, but not on, interior property lines. (3) No fence or wall shall exceed 6 feet in height in any residential district. (4) The finished side of the fence shall be to the outside of the property with the posts to the inside, unless the fence is the same on both sides. (5) Fences and walls within non - residential districts may be constructed up to 8 feet in height, unless otherwise limited within the zoning district of the subject property, or if a higher fence is required to meet the screening requirements of the ordinance. Fences and walls over 6 feet require certification by a structural engineer. Refer to specific zoning district of the property for additional requirements and development standards. (6) On comer lots, no obstructions over 30 inches high are allowed within the "sight triangle ", as identified on the following diagram. I 25' if 25'0 (7) Approval of a fence permit is required prior to construction of any fence or wall. (' (b) Ordinance # 10 -0663 • Section 154.118 Fences and Walls December 14, 2010 Page 2 (B) The Zoning Administrator may prohibit development in accordance with the above in instances that would produce a safety or traffic hazard. ('89 Code, § 11.10.07) (Ord. 464, passed 1 - -96; Am. Ord. 02 -321, passed 10 -8 -02) Penalty see ' 10.99 EFFECTIVE DATE OF ORDINANCE. This ordinance shall take effect upon is adoption and publication. Adopted by the City Council this 14'b day of December, 2010. Attest: Gary D. Plotz Steven W. Cook City Administrator Mayor n L • (4(01 AGENDA HUTCHINSON PLANNING COMMISSION Tuesday, November 16, 2010 5:30 p.m. 1. CALL TO ORDER 5:30 P.M. 2. PLEDGE OF ALLEGIANCE 3. CONSENT AGENDA A. CONSIDERATION OF MINUTES DATED OCTOBER 19, 2010 4. PUBLIC HEARINGS A. CONSIDERATION OF AMENDING ZONING ORDINANCE SECTION 154.118 ADDING LANGUAGE TO THE FENCE REQUIREMENTS REGARDING FENCE SETBACKS FROM TRAILS Moti�_nT:6 close_ — Mo onto approve with staff recom endations —Motion to reject 5. NEW BUSINESS 6. OLD BUSINESS 7. COMMUNICATION FROM STAFF 8. ADJOURNMENT c0��) An Economic Developmenr Avrhorrry MEMORANDUM Date: November 2, 2010 To: Honorable Mayor & City Council From: Miles R. Seppelt Economic Development Director RE: Sale of land to Warrior Mfg and Purchase of land from Warrior Mfg. Background Warrior Manufacturing has requested that the City buy back the 10.5 acre lot it purchased from the City in December of 2009- In its place, Warrior is seeking to purchase the 3.18 acre lot to the east of their current facility. U(b) Warrior has determined the 10.5 acre lot ultimately was too big for their needs and that the 3.18 acre east lot would be a better fit for the company's future growth. The EDA Board of Directors and the EDA Finance Team have reviewed this transaction thoroughly and are recommending and requesting City Council approval. Other Considerations • Agreeing to this transaction will help facilitate Warrior's expansion plans. • The 10.5 lot the city would acquire will be highly desirable from a development perspective. • When the 10.5 acre lot is sold in the future, those funds will be returned to the Community Improvement Fund. • Warrior Mfg. has met and greatly exceeded its job creation and wage requirements: Requested Action Enclosed in your packet is a resolution authorizing and directing the following actions: 1) Authorizing the sale of 3.17 acres of city land to Warrior Manufacturing for $40,000 per acre, totaling $127,113.88 2) Authorizing the purchase of 10.49 acres of land from Warrior Manufacturing for a total of $206,976 and payment of assessments on said land in the amount of $108,024. These together total $315,000. 3) Authorizing the use of approximately $187,885 from the city's Community Improvement Fund (CIF) to complete this transaction. 4) Directing City staff to take such actions as necessary to give effect to this resolution. I will be in attendance at the November 9'h City Council meeting to make a short presentation and answer any questions you may have. In the meantime, if you have any questions or need additional information, please give me a call at 234 -4223 at any time. Thank you for your time and consideration. (0 (e) Jobs Wages Total Com pensation Goal 10 $9.30 / hour $10.23 / hour Actua! 38 $15.411 hour $18.58 1hour Requested Action Enclosed in your packet is a resolution authorizing and directing the following actions: 1) Authorizing the sale of 3.17 acres of city land to Warrior Manufacturing for $40,000 per acre, totaling $127,113.88 2) Authorizing the purchase of 10.49 acres of land from Warrior Manufacturing for a total of $206,976 and payment of assessments on said land in the amount of $108,024. These together total $315,000. 3) Authorizing the use of approximately $187,885 from the city's Community Improvement Fund (CIF) to complete this transaction. 4) Directing City staff to take such actions as necessary to give effect to this resolution. I will be in attendance at the November 9'h City Council meeting to make a short presentation and answer any questions you may have. In the meantime, if you have any questions or need additional information, please give me a call at 234 -4223 at any time. Thank you for your time and consideration. (0 (e) MEMORANDUM DATE: November 17, 2010 for the November 23, 2010 City Council meeting TO: Hutchinson City Council FROM: Dan Jochum, Planning Director Bonnie Baumetz, Planning Coordinator SUBJECT: Consideration of Amendment to Zoning Ordinance Section 154.118 to add language to the fence requirements regarding fence setbacks from trails. Background: The purpose of this amendment is to add language to the fence ordinance that would basically create a two (2) foot setback from the trail to fences, walls, and other similar structures. The reason for amending the ordinance is to minimize any potential safety issues that may be caused by having a fence too close to a trail. Planning Commission Meeting: The Planning Commission held a public hearing and considered the request at their November 16th meeting. After discussion, the Commission recommended approval as amended with a 3 ayes to 1 nay vote. Recommendation: The Planning Commission recommended approval of the request and the attached ordinance. (a W PUBLICATION NO. ORDINANCE NO. 10 -0663 AN ORDINANCE AMENDING CITY CODE CHAPTER 154; SECTION 154.118, TO AMEND LANGUAGE TO THE FENCE REQUIREMENTS ALONG TRAILS THE CITY COUNCIL OF THE CITY OF HUTCHINSON, MINNESOTA ORDAINS: Notice of public hearing was duly given and publication of said hearing was duly made to appear to the satisfaction of the City Council that it would be in the best interests of the City to amend the City Code, Title XV: Land Usage, to amend Chapter 154, Section 154.118, to amend language to the fence requirements for properties along trails. § 154.118 FENCES AND WALLS. (A) In any zoning district, fences, walls, and hedges, may be built or planted, subject to meeting the following requirements: (1) Fences, walls, hedges, or other obstructions shall not encroach on any public right -of -way and must be a minimum of five feet from any of the rights -of -way (excluding alleys). In addition, fences walls hedges landscaping, or other obstructions within two (2) feet of the edge of trails are prohibited when the trails are not located in a right -of -way. (2) Fences and walls may be built up to, but not on, interior property lines. (3) No fence or wall shall exceed 6 feet in height in any residential district. (4) The finished side of the fence shall be to the outside of the property with the posts to the inside, unless the fence is the same on both sides. (5) Fences and walls within non - residential districts may be constructed up to 8 feet in height, unless otherwise limited within the zoning district of the subject property, or if a higher fence is required to meet the screening requirements of the ordinance. Fences and walls over 6 feet require certification by a structural engineer. Refer to specific zoning district of the property for additional requirements and development standards. (6) On corner lots, no obstructions over 30 inches high are allowed within the "sight triangle ", as identified on the following diagram. i LJ � J (7) Approval of a fence permit is required prior to construction of any fence or wall. (e (b Ordinance # 10 -0663 Section 154.118 Fences and Walls December 14, 2010 Page 2 (B) The Zoning Administrator may prohibit development in accordance with the above in instances that would produce a safety or traffic hazard. ('89 Code, § 11.10.07) (Ord. 464, passed 1 - -96; Am. Ord. 02 -321, passed 10 -8 -02) Penalty, see ' 10.99 EFFECTIVE DATE OF ORDINANCE. This ordinance shall take effect upon is adoption and publication. Adopted by the City Council this 14`h day of December, 2010. Attest: Gary D. Plotz City Administrator Steven W. Cook Mayor �0 M TO: Mayor & City Council FROM: Kent Exner, City Engineer RE: Consideration of Items for School Road NW Improvements Project (Letting No. 1 /Project No. 11 -0 1) DATE: November 23, 2010 City staff requests that the City Council approve the appropriate Resolutions to set a Public Hearing for the above referenced letting at the December 14'h City Council meeting. City staff will be administering a Neighborhood Meeting prior to the Public Hearing to familiarize adjacent property owners with the proposed project improvements and potential assessment amounts. We recommend that the attached Resolutions be approved. cc: Gary Plotz, City Administrator ( (C) RESOLUTION NO. 13805 RESOLUTION ORDERING PREPARATION OF REPORT ON IMPROVEMENT LETTING NO. 1 /PROJECT NO. 11 -01 WHEREAS, it is proposed to improve: School Road NW from TH 7/22 to Golf Course Road NW roadway reconstruction, curb and gutter, draintile installation, bituminous /concrete surfacing, stormwater /drainage improvements, water distribution /sanitary sewer repairs /upgrades, street lighting, trails /sidewalks, landscaping, restoration and appurtenances; and WHEREAS, it is proposed to assess the benefited property for all or a portion of the cost of the improvement, pursuant to Minnesota Statutes, Chapter 429, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF HUTCHINSON, MINNESOTA: THAT, the proposed improvement, called Letting No. 1 /Project No. 11 -01, be referred to the Engineer for study and that that person is instructed to report to the Council with all convenient speed advising the Council in a preliminary way as to whether the proposed improvement is necessary, cost- effective, and feasible; whether it should best be made as proposed or in connection with some other improvement; the estimated cost of the improvement as recommended; and a description of the methodology used to calculate individual assessments for affected parcels. Adopted by the Council this 23rd day of November 2010. Mayor: Steven W. Cook City Administrator: Gary D. Plotz (' (C-) HUTCHINSON PUBLIC WORKS /ENGINEERING DEPARTMENT Hutchinson. City Center /11 I Hassan St SE./Hutchinson MN 55350- 2522/320- 234 - 4209 /FAX 320- 234 -4240 ENGINEERING REPORT & FEASIBILITY STUDY: TO: Mayor & City Council FROM: Kent Exner, City Engineer DATE: November 23, 2010 SUBJECT: Letting No. 1 /Project No. 11 -01 I have studied the following proposed improvements and find that the proposed project is feasible and recommend it be constructed: L1 /P11 -01 School Road NW from TH 7/22 to Golf Course Road NW roadway reconstruction, curb and gutter, draintile installation, bituminous /concrete surfacing, stormwater /drainage improvements, water distribution /sanitary sewer repairs /upgrades, street lighting, trails /sidewalks, landscaping, restoration and appurtenances ESTIMATED COST TOTAL Gonstruction Cost $1,150,000 Engineering $172,500 Administration $69,000 Fiscal/Legal/interest $40,000 $34,500 Engineering Services $17,200 ESTIMATED TOTAL $1,443,200 ESTIMATED FUNDING TOTAL Assessable Costs $120,000 Federal Aid $920,000 City - Bonding $363,200 City - Water Funds $40,000 City - Wastewater Funds $0 City - Stormwater Funds $0 ESTIMATED TOTAL $1,443,200 c' (G) RESOLUTION NO. 13806 RESOLUTION RECEIVING REPORT AND CALLING HEARING ON IMPROVEMENT LETTING NO. 1 /PROJECT NO. 11 -01 WHEREAS, pursuant to a resolution of the Council adopted November 23rd, 2010, a report has been prepared by Kent Exner, Public Works Director /City Engineer with reference to the following proposed improvements: School Road NW from TH 7122 to Golf Course Road NW roadway reconstruction, curb and gutter, draintile installation, bituminous /concrete surfacing, stormwater /drainage improvements, water distribution /sanitary sewer repairs /upgrades, street lighting, trails /sidewalks, landscaping, restoration and appurtenances; and said report was received by the Council on November 23rd, 2010- NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF HUTCHINSON, MINNESOTA: 1. The Council will consider the improvement of such street(s)s in accordance with the report and the assessment of 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 $1,443,200.00. 2. A public hearing shall be held on such proposed improvements on the 14th day of December, 2010, in the Council Chambers of the Hutchinson City Center at6:00 P.M., and the Clerk shall give mailed and published notice of such hearing and improvements as required by law. Adopted by the Hutchinson City Council this 23rd day of November 2010. Mayor: Steven W. Cook City Administrator: Gary D. Plotz 6 (C') C TO: Mayor & City Council FROM: Kent Exner, City Engineer RE: Consideration of Items for Plaza 15 Parking Lot Improvements, City Parking Lot B Reconstruction and TH 15 & South Grade Road Intersection Reconfiguration Projects (Letting No. 5/Project No. 11 -06, 07 & 08) DATE: November 23, 2010 City staff requests that the City Council approve the appropriate Resolutions to set a Public Hearing for the above referenced letting at the December I e City Council meeting. City staff will be administering meetings with adjacent property owners (those who are proposed to be assessed) prior to the Public Hearing to familiarize them with the proposed project improvements and potential assessment amounts. We recommend that the attached Resolutions be approved. cc: Gary Plotz, City Administrator RESOLUTION NO. 13807 RESOLUTION ORDERING PREPARATION OF REPORT ON IMPROVEMENT LETTING NO. &PROJECT NO's. 11 -06, 111-07,1111-08 WHEREAS, it is proposed to improve: Project No. 11 -06: Plaza 15 Parking Areas by roadway /parking lot reconstruction, curb and gutter, draintile installation, bituminous /concrete surfacing, stormwater /drainage improvements, water distribution /sanitary sewer repairs /upgrades, street lighting, trails /sidewalks, landscaping, restoration and appurtenances; and Project No. 11 -07: City Parking Lot "B" at Franklin St & 1st Ave SW by roadway /parking lot reconstruction, curb and gutter, draintile installation, bituminous /concrete surfacing, stormwater /drainage improvements, water distribution /sanitary sewer repairs /upgrades, street lighting, trails /sidewalks, landscaping, restoration and appurtenances; and Project No. 11 -08: TH15 South & South Grade Road SW Intersection by roadway /parking lot reconstruction, curb and gutter, bituminous /concrete surfacing, stormwater /drainage improvements, traffic signals, restoration and appurtenances; and WHEREAS, it is proposed to assess the benefited property for all or a portion of the cost of the improvement, pursuant to Minnesota Statutes, Chapter 429, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF HUTCHINSON, MINNESOTA: THAT, the proposed improvement, called Letting No. 5 /Project No's. 11 -06, 11 -07, 11 -08, be referred to the Engineer for study and that that person is instructed to report to the Council with all convenient speed advising the Council in a preliminary way as to whether the proposed improvement is necessary, cost - effective, and feasible; whether it should best be made as proposed or in connection with some other improvement; the estimated cost of the improvement as recommended; and a description of the methodology used to calculate individual assessments for affected parcels. Adopted by the Council this 23rd day of November 2010. Mayor: Steven W. Cook Administrator: Gary D. Plotz (c i� HUTCHINSON PUBLIC WORKS/ENGINEERING DEPARTMENT Hutchinson City Center /111 Hassan St SE/Hutchinson MN 55350-2522/320-234-4209/FAX 320 -234 -4240 ENGINEERING REPORT & FEASIBILITY STUDY TO: Mayor & City Council FROM: Kent Exner, City Engineer DATE: November 23, 2010 SUBJECT: Letting No. 5 /Project No. 11 -06, 07 & 08 I have studied the following proposed improvements and find that the proposed project is feasible and recommend it be constructed: L5/P11 -06 Plaza 15 Parking Areas by roadway /parking lot reconstruction, curb and gutter, draintile installation, bituminous /concrete surfacing, stormwater /drainage improvements, water distribution /sanitary sewer repairs /upgrades, street lighting, trails /sidewalks, landscaping, restoration and appurtenances; an L5/P11 -07 City Parking Lot "B" at Franklin St & 1st Ave SW by roadway /parking lot reconstruction, curb and gutter, draintile installation, bituminous /concrete surfacing, stormwater /drainage improvements, water distribution /sanitary sewer repairs /upgrades, street lighting, trails /sidewalks, landscaping, restoration and appurtenances L5/P11 -08 TH15 South & South Grade Road SW Intersection by roadway /parking lot reconstruction, curb and gutter, bituminous /concrete surfacing, stormwater /drainage improvements, traffic signals, restoration and appurtenances ESTIMATED COSTS P11 -06 P11 -07 P11 -08 TOTAL Construction Cost $455,000 $157,000 $80,000 $692,000 City - Bonding Engineering $68,250 $23,550 $12,000 $103,800 $0 Administration $27,300 $9,420 $4,800 $41,520' Fiscal/Legal/Interestt $13,650 $4,710 $2,400 $20,760 Engineering Services $10,000 $5,000 $20,000 $35,000 ESTIMATED TOTALS $574,200 $199,680 $119,200 $893,080 ESTIMATED FUNDING P11 -06 P11 -07 P11` -08 TOTAL -! Assessable Costs $427,000 $100,000 $0 r $527,000 City - Bonding $147,200 $99,680 $119,200 _ $366,080 City -Water Funds $0 $0 $0 $0 City - Wastewater Funds $0 $0 $0 $0 City - Stormwater Funds $0 $0 $0 $0 ESTIMATED TOTALS - $574,200 $199,680 $119,200 $893,080' � Cd) RESOLUTION NO. 13808 RESOLUTION RECEIVING REPORT AND CALLING HEARING ON IMPROVEMENT LETTING NO. 5 /PROJECT NO's. 11-06,11-07,11-08 WHEREAS, pursuant to a resolution of the Council adopted November 23rd, 2010, a report has been prepared by Kent Exner, Public Works Director /City Engineer with reference to the following proposed improvements: Project No. 11 -06: Plaza 15 Parking Areas by roadway /parking lot reconstruction, curb and gutter, draintile installation, bituminous /concrete surfacing, stormwater /drainage improvements, water distribution /sanitary sewer repairs /upgrades, street lighting, trails/sidewalks, landscaping, restoration and appurtenances; and Project No. 11 -07: City Parking Lot "B" at Franklin St & 1st Ave SW by roadway /parking lot reconstruction, curb and gutter, draintile installation, bituminous /concrete surfacing, stormwater /drainage improvements, water distribution /sanitary sewer repairs /upgrades, street lighting, trails /sidewalks, landscaping, restoration and appurtenances; and Project No. 11 -08: TH15 South & South Grade Road SW Intersection by roadway /parking lot reconstruction, curb and gutter, bituminous /concrete surfacing, stormwater /drainage improvements, traffic signals, restoration and appurtenances; and said report was received by the Council on November 23rd, 2010. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF HUTCHINSON, MINNESOTA: 1. The Council will consider the improvement of such street(s)s in accordance with the report and the assessment of 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 $893,080.00. 2. A public hearing shall be held on such proposed improvements on the 14th day of December, 2010, in the Council Chambers of the Hutchinson City Centerat 6:00 P.M., and the Clerk shall give mailed and published notice of such hearing and improvements as required by law. Adopted by the Hutchinson City Council this 23rd day of November 2010. Mayor: Steven W. Cook City Administrator: Gary D. Plotz b (d) 2011 LICENSE RENEWALS To: Mayor and City Council From: Cori Reinhart, Administrative Technician Date: November 23, 2010 The following businesses /organizations have submitted renewal applications and payments for licenses effective January 1, 2011 — December 31, 2011: Massage Licenses • Genesis Salon & Enso Spa • Hutchinson Therapeutic Massage • Mary Lou's Therapeutic Massage • Massage Therapy By The Woods • Red Clover Massage & Wellness • The Hair Lounge & Spa Services Garbage/Hauling Licenses • Waste Management Pawn Licenses • Security Coin & Pawn Shop Inc. Tattoo Licenses Taxi Licenses • Quality Transportation Tobacco Licenses • Casey's General Store • Cattoor Oil Co., Inc. Sinclair • Cobom's Inc. Cash Wise • Coborn's Inc. Holiday Station • Crow River Golf Club • Erickson's Diversified Corporation — EconoFoods • Erickson's Oil Products, Inc. — Freedom Value Center • Hutchinson Co -op (x 2) • Hutchinson Outpost • Lamplighter Lounge II, Inc. • Murphy Oil Corporation • Northern Tier Retail LLC — SuperAmerica • Pipe Dreams • Smokes 4 Less • Walmart (e) �C 4CC Vv USE OF FACILITIES HUTCHINSON SCHOOL DISTRICT AND CITY OF HUTCHINSON 2010 -2012 Recreation Center It shall be the policy of the School District and the City of Hutchinson to rent the Recreation Center Building/Burich Arena dry floor facilities at a cost of $35 per hour with the rentee providing a minimum of one building supervisor. Roberts Park/Linden Park (Softball) Estimate 40 days of use, which includes 30 softball games — 10 "A" squad games, 10 "B" squad games, and 10 "C" squad games. As soon as weather permits, usually the first week in April, practice is moved outdoors to Linden and Roberts Park. The above - mentioned 40 days does not account for any inclement weather cancellations. It shall be the policy of the School District and the City of Hutchinson that the school district will rent Roberts Park for $2,400 per softball season for the above - mentioned use. This cost is based on 40 days X 8 fields. This includes material, labor and use of City equipment. VMF Field (Baseball) Use of Veteran's Memorial Field shall be $1,000 for the season, which includes games and practices. General Guidelines When use of facilities or cancellation is needed because of inclement weather, a contact must be made by noon to the city's PRCE Director by the School Activities Director, and facilities can be used only upon approval of the above - mentioned directors. Renters shall always follow the approved time schedule. Renters shall assist in setup for activities or for the next activities. Renters shall leave the facilities in good condition. The renter's supervisor of the activity must stay until all participants have left the building including emergency situations. (0 2 LEASE AGREEMENT HUTCHINSON SCHOOL DISTRICT Burich Arena THIS AGREEMENT, made this first day of July 2010 by the City of Hutchinson, a municipal corporation, hereinafter called First Party, and the Independent School District No. 423 of McLeod County, hereinafter called Second Party, WITNESSETH: WHEREAS, the First Parry has assumed the operation and maintenance of Burich Arena, through the guidance and recommendation(s) of the Civic Arena Board; WHEREAS, it is the desire of the Second Party to rent Burich Arena for programming to be conducted and sponsored through its physical education program and/or extra - curricular programs; NOW, THEREFORE, in consideration of the premises and the terms and covenants hereinafter set forth, the parties hereby mutually agree as follows: 1. PREMISES: The First Party agrees to lease and hereby does lease, and the Second Party agrees to take and hereby does take Burich Arena, east rink and west rink. 2. TERMS OF LEASE: This lease shall be from the term of July 1, 2010 through June 30, 2012. 3. RENTAL PAYMENT AND GAME RECEIPTS: The Second Party agrees to pay the First Party a rental payment for the premises as shown below: 2010 -11 2011 -12 TOTAL TOTAL Practice Ice 225 hours $150. $150. $33,750. $33,750. 20 Games Varsity /J.V. $600. $650. $12,000. $13,000. TOTAL $45,750 $46,750 Each yearly total amount will be paid on or before April I" of 2011 and 2012 respectively. All game admission receipts shall be the property and responsibility of the Second Party. Hockey games in excess of 20 Varsity /J.V shall be billed at the agreed upon game rates. 4. DEFINITIONS a. "Ice- time" - The period of time the ice is on the floor of the premises and utilized for hockey games and/or practices. b. "Non- Ice - Time" - The period of time no ice is on the floor and utilization is for sports other than hockey, i.e., tennis, track, softball, soccer, baseball. C. Exclusive use - The time the Second Party is in possession of the premises for "ice- time" and "non- ice - time" use, without interference from the First and/or Second Party(s), except for normal maintenance of the building. 5. USE OF FACILITIES: The First Party agrees to lease the premises for exclusive use at the following designated times and activities. V0 a. The Second Party shall be allotted 225 hours of ice time per school year. In the event more than 225 hours practice ice time is used, the Second Party shall be billed at the agreed hourly rate. b. All practice time(s) for Boys Squads and Girls Squads shall be scheduled as agreed upon between the city's Facilities & Operations Manager and School Activities Director. c. Game ice -time shall be set by schedule. All hockey games shall be Monday through Saturday, excluding holidays. All regularly scheduled hockey games and dates are set forth in a schedule and may be canceled and/or rescheduled only after mutual consultation of the First Party and the Second Party, or their respective representatives. d. In the event the facility is rendered unfit for hockey use due to fire or any other cause, the Second Party's obligation for rent shall be adjusted on a pro -rata basis and the party of the first part shall refund within 30 days after termination that portion of the rent covering the period of non -use. If the damage cannot be repaired within 30 days, the Second Party may exercise the option to terminate. FIRST PARTY RESPONSIBLITIES: a. To provide all utilities, including heat, light, water, sewer, refuse; maintain all ice - making and cleaning equipment and machines; flooding the ice rinks; cleaning of the ice surfaces; maintaining the parking lot; and the normal maintenance, repair and replacement of dasherboards, goals and nets; and make all necessary structural alterations, repairs and maintenance. b. To provide janitor service for cleaning of the locker and shower area and cleaning of the bleacher area, storage area and upper arena areas as needed. C. To operate, maintain and receive revenues from all concessions and/or vending machines, unless otherwise assigned in whole or part. SECOND PARTY RESPONSIBILITIES: a. To provide personnel and supplies for the sale and collection of admission tickets. b. To provide for payment of any Minnesota sales tax for admission. C. To provide towel and laundry service. d. To designate personnel to supervise students at any time the building is being used by its students under this agreement, and to designate one individual to be responsible for key(s) for use of the building while in use by its students. e. To be responsible for loss or theft of school and/or personnel property while stored or otherwise within the premises. f. To make all arrangements and/or payment for announcer(s), scoreboard operator(s), referees and supervisory personnel. g. To designate the coach or supervisor for seeing all pieces of equipment and supplies of the school and players are picked up and properly stored in the areas and cabinets, as provided by the First Parry, and to see that all students are out of the building by one -half (1/2) hour after close of practice or game. G? (� 4 8. RULES AND REGULATIONS: The rules and regulations of Independent School District No. 423 pertaining to student conduct shall be in effect during all times this building is used by the school. Additional policies governing the conduct of students may be developed as needed by Burtch Arena and the school administration. The policies, rules and regulations shall be enforced by school personnel as assigned by the school administration and the city personnel as assigned by the city's Facilities & Operations Manager. 9. INSURANCE: The First Party agrees to pay a sum equal to the actual expense for bodily injury and property damage insurance. 10. INDEMNIFICATTONS: The Second Party agrees to save harmless, protect and indemnify the First Party from any and all claims, not fully covered by Section 9 Insurance, of every kind and nature whatsoever arising out of the personal injury or property damage on the leased premises while it is under control of and being used by the party of the second part. Each party agrees to name the other as an "additional insured party" in liability insurance policies. 11. SUCCESSORS AND ASSIGNS: All provisions of the lease, herein stated, are binding upon the successors or assigns of the respective parties. IN WITNESS WHEREOF, the parties have signed this agreement to be effective the day and year above written. In presence of CITY OF HUTCHINSON BY Mayor BY City Administrator INDEPENDENT SCHOOL DISTRICT NO, 423 BY r Chairman BY_� "1�J Clerk �x MEMORANDUM POLICE / EMERGENCY MANAGEMENT SERVICES TO: Mayor & Council FROM: Chief Dan Hattenk DATE: November 12, 2010 RE: Consent Agenda - Liquor License Application and Investigation Rex Butcher /Northern Tier Retail LLC A background check was conducted on Mr. Rex Butcher in reference to his obtaining a Liquor License in the City of Hutchinson. Butcher is the President of Northern Tier Retail LLC who will be the new owners of the Super America Convenience Store located at 1210 Highway 7 W. The investigation revealed there is no criminal history in the State of Minnesota on Rex Butcher. He has a valid driver's license and there is no record on him in the Minnesota Courts or in our local records. Super America has had an off -sale 3.2 Malt Liquor License for many years. The last violation of sale to a minor was on 12/30/1999 during a City wide compliance check. The local manager for Super America is Jessica Wenzel. She has had contact with the police department for reporting incidents that have occurred at Super America. It would be my recommendation to grant Mr. Butcher /Northern Tier this liquor license. /csb 2010 -01 -0032 6 (g) ca i I I 1 ^Inssui Saco SGOhhn1I thrrchiasom MN 553550 (320) 5675151 Xas: (320) 234 -4240 P ro - ra Off -Sale Fee: $300.00 City of Hutchinson APPLICATION FOR 3.2 MALT LIQUOR LICENSE — OFF SALE In provisions of the City of Hutchinson Municipal Code Chapter 112 All applications must be received at least two weeks_bc+fore City Council Meeting in order to be considered SuperAmerica 114315 Business 1210 Hwy. 7 W*— _Hutchinson Business Address City 320) 587 -6223 Phone Number Northern Tier Retail LLC X203) 244, - 6550._. Corporation Name Phone Number -_---- Ridgefield__.. CT.. -.__ Corporation Address City State siness (il necessary, list additional Rex Eric Butcher Prospective President eff. 1 Name rlrle Oscar Ignacio Rodriguez Prospective Secretary and Tr ------------ _.. Name -. ........._ Tale eff: 1 Vamc rifle wekhm _ _ _ The i'ollowing items need to be completed and�or atI ached _ in order roe —1h —e applicati _ on to be procccsed: Certificate of insurance (made out in the name of the City of Hutchinson 0 yes ❑ no Application fee paid in full (check or money order): Ig yes L7 no Ll no 30 + /2010 The above listed business hereby applies for a license for the terns of one year to sell IN ORIGINAL PACKAGES ONLY, 3.2 MALT" LIQUORS, as the same are defined by law, for consumption "OFF" thow certain piernises in the City of Hutchinson described above at which place said applicant operates the business listed above and to that end represents and state as follows: 'That said applicant is a citizen of the United States; of good moral character and repute; and has attained the age of 21 years: that he /she is proprietor of this estahikhment for which the license will be issued if tfi is application is granted. 2010 6 (�) 01). of ifulchinsnn ,Ippla won for 3, 2 AM 11 L.ryvmr f,irenee - (�(f Gilr Pog, 2 r+f 2 That said applicant makes this application pursuant and subject to all the laws of the State of Minnesota and the ordinances and regulations of said City of Hutchinson applicable thereto, which are hereby made a part hereof, and hereby agrees to observe and obey the same. Each Applicant further states that he/she is not now the holder of, nor has he/she made application for, nor does he intend to make application for a Federal Retail Dealer's Special tax stamp for the sale of intoxicating liquor. I declare that the information I have provided on this application is truthful, and I authorize the City of Hutchinson to investigate the information submitted. September 28, 2010 Srgnulrov afnefh_ori:ed t h'Gr 0/ organisation Dow Police G approved ❑ denied Notes: Police Dare LIQUOR ESTABLISHMENT Ordinance 112.019 requires that the manager of the establishment be "a natural person who is a resident of the City ". Please complete and sign the following confirming the above. Establishment SupPr�mg iea 114315 OQU-58776223 Grtablishment Name Phone Ntunber 1210 Hwy. 7 W. EszabT[sdnnenr :address Hutchinson OfY MN 55350 State Ztp Northern Tier Retail LLC (203) 244 -6550 Oxner;'Corpurate Name Fhon hmnber 37 Danbury Rd., Suite 204 Ridgefield CT 06877 -4079 Owner /Corporate ,address Man 0111 State Zip Jessica Sean Wen,ze_l _ (302) 587- -2310 A9anager I<4nne - - -� Phone Numher 1197 Prairie View Circle Hutchinson MN 55350 Mano�er Addresa� �� —City ,State 42 I declare that the information 1 have provided on this application is truthful, and I authorize the City of Hutchinson to investigate the information submitted. of owner or awhoraed <Wzeer of September Z<3, 2010 Ohre (0 (,q-) �✓ 1 °\ MEMORANDUM POLICE 1 EMERGENCY MANAGEMENT SERVICES TO: Mayor & Council FROM: Chief Dan Hatteno DATE: November 19, 2010 RE: Consent Agenda — Transient Merchant A background check was conducted on Jerilyn Breitkreutz in reference to her obtaining a transient merchant license to conduct a weekly garage sale from a building located at 235 Third Avenue SW, in the City of Hutchinson. The investigation revealed there is no criminal history on Jerilyn Breitkreutz in the State of Minnesota. In searching Hutchinson Police Services records, we have not had contact with Jerilyn Breitkreutz or at her place of business. In searching our computer aided dispatch (CAD) records, there have been three incidents in the past year where Ms. Breitkreutz had placed signs for her sales in the public right of way. The signs were removed and returned to Ms. Breitkreutz. It would be my recommendation to grant Jerilyn Breitkreutz the transient merchant license. /csb 2010 -01 -0033 & Ch Y 66uu \\ :iii I I 1 Hassan Street Southeaa Hutchinson, MN 55350 (320)587 - 5151 /Fax. (320)234 -0240 City of Hutchinson APPLICATION FOR PEDDLERS, SOLICITORS, AND TRANSIENT MERCHANTS Application Type (choose one) ❑ Solicitor ,5125.00 Date of Application w Transient ;Merchant 5125.00 ` ❑ Peddler 5125.00 ❑Parade Peddler $30.00 Ap2licant Information 2" X 2" Picture Required Name: Vii ��1 �f2ii KY2_�tz 1 � Height: t Weight: J Jr Eye Color: ' li-C& Driver's License Number: MAJ Permanent Address: ✓ 42 co a a' ia r City State Zip Permanent Telephone: Temporary Address: J City State ZIP Temporary Telephone Access: Have you been convicted of any crime, misdemeanor, or violation of any municipal ordinance, other than traffic violations? ❑ yes li&o If yes, state the nature of offense and punishment or penalty assessed therefore: ('W City afHutchinson Application for Peddlers, Solicitors, and Transient Merchants Page 2 q(4 Location Information P. Location Name lu. ft h/ Son 5 "3.!i) Location Address Ci State zip Business Information Describe relationship between applicant and employer: Describe nature of business and describe item(s) offered: ? kU Crs Describe method of delivery: l)!U Describe source of supply: J ayti�n��— �, fa u S f'fl, — Supplier Name J lam— Suppler Phone Number Supplier Address City State Zip �6uppher Name Suppler Phone Number vZ 9 C,lA.LI Supplier Address J City State Zip Supplier Name Suppler Phone Number Su he,Address Ci S(ate Zi Reference Information Provide two (2) property owners (preferably in McLeod County) for character references: Properq Owner Name Property 0,' ,, Phone A'u erer r Property Owner Address City State ZIP r Property Owner Name Prop rty Oi Numbei v. -,%z-''� Property Owner Address Cp S); tat � (A City of Hutchinson Application for Peddlers, Solicitors, and Transient Merchams Page 3 of J List last (up to three (3)) previous city(ies) where you carried on same activity: to lhte(s) of Activity to Cty State Date(s) of Activity to Date(s) of Activity Checklist The following items need to be completed and/or attached in order for the application to be processed: Application /Investigation fee paid in full (check or money order): .yes ❑ no Application completed in full and signed: 1 yes ❑ no I hereby certify I have completely filled out the entire above application and that the application is true, correct, and accurate. I fully understand that any person who violates any provision of the Peddlers, Solicitors, and Transient Merchants Ordinance No. 673 is guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding $1,000.00 or by imprisonment for a period not exceeding 90 days or both, plus, in either case, the costs of prosecution. Internal Use Only Police ❑ approved ❑ denied Notes: City Council ❑ approved ❑ denied Notes: H Transient do Date b (ti) ELECTRONIC FUNDS TRANSFERS AMOUNT $1,987.15 $36,437.00 $594.00 $11,412.00 LCD) COUNCIL MEETING 11/23/10 TAX FUND PAYABLE TO FUEL HATS MN DEPT OF REV SALES TAX LIQUOR MN DEPT OF REV USE TAX PRCE CIVIC ARENA MN DEPT OF REV SALES & USE TAX WATER SEWER CREEKSII MN DEPT OF REV AMOUNT $1,987.15 $36,437.00 $594.00 $11,412.00 LCD) PAYROLL ELECTRONIC FUNDS TRANSFERS PAYROLL DATE: 11/19/2010 Period Ending Date: 11/13/2010 $57,585.38 IRS - Withholding Tax Account Federal Withholding Employee /Employer FICA Employee /Employer Medicare $11,012.36 MN Department of Revenue State Withholding Tax $36,441.80 Public Employee Retirement Association Employee /Employer PERA/DCP Contributions $4,648.56 TASC Employee Flex Spending Deductions $400.00 MNDCP Employee Contributions - Deferred Comp $1,339.60 ING Employee Contributions - Deferred Comp $2,026.15 ICMA Retirement Trust Employee Contributions - Deferred Comp $693.58 MN Child Support System Employee Deductions $114,147.43 Total Electronic Funds Transfer (Q (� ) PAYROLL ELECTRONIC FUNDS TRANSFERS PAYROLL DATE: 11/15/2010 Severance Check Period Ending Date: 11/14/2010 $26,524.66 IRS - Withholding Tax Account Federal Withholding Employee /Employer FICA Employee /Employer Medicare $4,113.63 MN Department of Revenue State Withholding Tax $30,638.29 Total Electronic Funds Transfer PAYROLL ELECTRONIC FUNDS TRANSFERS PAYROLL DATE: 11/8/2010 Period Ending Date: 11/6/2010 $6,902.73 IRS - Withholding Tax Account Federal Withholding Employee /Employer FICA Employee /Employer Medicare $1,302.10 MN Department of Revenue State Wthholding Tax $8,204.83 Total Electronic Funds Transfer Severance Check 01) AMENDED AND RESTATED BYLAWS OF HUTCHINSON HEALTH CARE Hutchinson Health Care (the "corporation ") is a nonprofit health care corporation, including a hospital, nursing home, and clinic, organized under the laws of the State of Minnesota. The mission ( "Mission ") of Hutchinson Health Care is "to promote health and provide care alternatives to our community." The Board of Directors of Hutchinson Health Care is responsible for the quality of care rendered by the corporation and must accept and discharge this responsibility to do all that is necessary to fulfill the corporation's obligation to its patients, clients, and residents. The corporation is formed as the result of the conclusions of a community task force which has recommended that assets and activities of the City of Hutchinson, Minnesota ( "City ") with respect to delivery of health care services be transferred to a private nonprofit entity not controlled by the City as a way to more effectively and efficiently provide for the health care needs of residents in the primary service area of Hutchinson Community Hospital ( "Hospital "). The corporation was formed under the auspices of community representatives serving on the task force and not by the City under Section 144.581 of the Minnesota Statutes. Acknowledging that the corporation needs the cooperation of the City of Hutchinson to deliver on certain aspects of its mission, the corporation has provided for certain rights to be exercised by the City as provided in these Bylaws. At the time of adoption of these Restated Bylaws, the corporation offers a wide variety of services including, in addition to hospital inpatient and outpatient services and clinical services, emergency room, and nursing home services. The corporation defines its fundamental nature ( "Fundamental Nature ") as an independent private health care provider, providing a reasonable range of acute care and outpatient hospital services and clinic services. SECTION 1.1 Number and method of election. The Board of Directors of this corporation shall consist of an odd number of no fewer than seven (7) and no more than eleven (11) persons, and, subject to such limitation, the number of members of the Board of Directors shall be such as may be designated from time to time by the Board of Directors. Members of the Board of Directors shall be elected or appointed as set forth below in accordance with the nominations process described in Section 4.5 of these Bylaws. (a) Appointed Directors. Within the Board size parameters established from time to time by the Board, the largest number of directors which constitute a minority of the total 9 (a-) number of authorized directors shall be appointed by the City Council of the City (the "City Council "). No more than two (2) of such appointees may concurrently serve as members of the City Council. (b) Ex Officio Director. There shall be one (1) Ex Officio Director, who shall be the physician serving from time to time as the Chief of the Medical Staff of the Hospital. The Ex Officio Director shall have voting rights. (c) Community Directors. The remainder of the directors shall be elected by the Board of Directors of this corporation at the annual meeting of this corporation and shall be known as Community Directors. At least two (2) of the Community Directors shall be residents of the Hospital's Geographic Service Area at the time of election, and of those, at least one director shall be a resident of the City. The Geographic Service Area shall mean the area composed of the lowest number of contiguous zip codes from which the Hospital draws at least 75 percent of its inpatients. SECTION 1.2 Board Composition. The composition of the Board of Directors is subject to the following limitations: (a) Credentialed practitioners. At any given time, no more than one -third of the directors may be health care professionals credentialed to provide services at the Hospital or any other health care facility owned by this corporation. (b) Directors of other systems. At any given time, a majority of the directors of this corporation shall be persons who are neither: (i) directors of any other health care providers or health care systems residing outside the Hospital's Geographic Service Area; nor (ii) directors of any single health care provider or health care system. (c) Employees. No employee of this corporation shall be a member of the Board of Directors; provided, however, that this requirement shall not apply to health care professionals credentialed to provide services at the Hospital or any other health care facility owned by this corporation. SECTION 1.3 Terms. Except as otherwise provided in Section 1.1, each director of this corporation other than the Ex Officio Director shall be elected or appointed to serve for a term of three years, and, unless the Board of Directors has determined that a successor will not be elected or appointed, until his or her successor has assumed office; or until the director's prior death, resignation or removal. Each Community Director and Appointed Director is limited to serving four consecutive terms. The term of office of the Ex Officio Director shall be coterminous with his or her term as Chief of the Hospital's Medical Staff. The Community Directors and Appointed Directors shall each be divided into three classes as nearly equal in number as possible, so that the terms of office of approximately one -third of the Community Directors and approximately one -third of the Appointed Directors shall expire each year. -2- SECTION 1.4 Compensation. Directors shall not receive compensation for their service as directors; provided, however, that this corporation may reimburse directors for reasonable and necessary expenses incurred while performing the duties of a director. SECTION 1.5 Removal; resignation; vacancies. Any director may at any time be removed with or without cause by the Board of Directors; provided, however, that an Appointed Director may be removed by the Board of Directors only for cause by the affirmative vote of two - thirds of the directors of this corporation. For purposes of the foregoing sentence, "cause" shall mean breach of fiduciary duty. An Appointed Director may also be removed with or without cause by the City Council. Any director may resign at any time by giving written notice to the Chair or the Secretary. The resignation shall be effective without acceptance when the notice is received by the Chair or the Secretary, unless a later effective date is specified in the notice. Any vacancy occurring because of the death, resignation or removal of a Community Director may be filled by a person elected by the Board of Directors for the unexpired term of such director provided; however, that the Board complies with the requirements of Section 1.1(c) and Section 1.2 of these Bylaws. Any vacancy occurring because of the death, resignation or removal of an Appointed Director shall be filled by a person appointed by the City Council; which shall fill the vacancy within 60 days following the date the vacancy occurs. Any vacancy resulting from an increase in the number of Community Directors may be filled by a person elected by the Board of Directors for a full term of office unless the Board of Directors designates a shorter term of office. MEETINGS OF THE BOARD OF DIRECTORS SECTION 2.1 Annual meeting. The annual meeting of the Board of Directors for the purpose of electing Community Directors and officers and transacting such other business as may properly come before the meeting shall be held in the City at the time and place designated from time to time by the Board of Directors, provided that, by unanimous action of the Board of Directors, another place of meeting within the State of Minnesota may be designated. SECTION 2.2 Other meetings. Other meetings of the Board of Directors may be held at such time and place as are announced at a previous meeting of the Board of Directors, however the Board of Directors shall meet at least quarterly. The annual meeting serves as a quarterly meeting. Meetings of the Board of Directors may also be called at any time (a) by the Chair, (b) by the Board of Directors, or (c) upon the request of three or more members of the Board of Directors. Anyone entitled to call a meeting of the Board of Directors may make a written request to the Secretary to call the meeting, and the Secretary shall give notice of the meeting, setting forth the time and place thereof, to be held between two and thirty days after receiving the request. If the Secretary fails to give notice of the meeting within seven days from the day on which the request was made, the person or persons who requested the meeting may fix the time and place of the meeting and give notice in the manner hereinafter provided. -3- SECTION 2.3 Notice of meetings. Notice of each meeting of the Board of Directors for which notice is required, and of each annual meeting, stating the time and place thereof, shall be given to all directors by electronic communication or in person at least two days before the meeting, or shall be mailed to each director at least five days before the meeting. A director may be given notice by electronic communication only if the director has previously consented to receive notice in such form of electronic communication. All such notices not given in person shall be sent to the director at his or her postal or electronic address according to the latest available records of this corporation. Any director may waive notice of a meeting before, at or after the meeting, orally, in writing, by electronic communication, or by attendance. Attendance at a meeting is deemed a waiver unless the director objects at the beginning of the meeting to the transaction of business because the meeting is not lawfully called or convened and the director does not participate in the meeting. SECTION 2.4 (Quorum and voting. The presence of at least a majority of the members of the Board of Directors shall constitute a quorum at any meeting thereof, provided that at least one Appointed Director is present. The directors present at any meeting, although less than a quorum, may adjourn the meeting from time to time. If a quorum is present when a duly called meeting is convened, the directors present may continue to transact business until adjournment, even though the withdrawal of one or more directors leaves less than the number otherwise required for a quorum. At all meetings of the Board of Directors, each director shall be entitled to cast one vote on any question coming before the meeting. A majority vote of the directors present at any meeting, if there be a quorum, shall be sufficient to transact any business, unless a greater number of votes is required by law or these Bylaws. A director shall not appoint a proxy for himself or herself or vote by proxy at a meeting of the Board of Directors. For purposes of determining whether a director has met his or her fiduciary duties as a director, but for no other purpose, a director who is present at a meeting of the Board of Directors when an action is approved by the Board of Directors is presumed to have assented to the action unless the director votes against the action or is prohibited from voting on the action. SECTION 2.5 Action without a meeting. Any action that could be taken at a meeting of the Board of Directors may be taken by written action signed by all of the directors. SECTION 2.6 Meetinp-s held using remote communication. A director may participate in a meeting of the Board of Directors by means of conference telephone or, if authorized by the Board of Directors, by such other means of remote communication, in each case through which that director, other directors so participating, and all directors physically present at the meeting may communicate with each other on a substantially simultaneous basis. Participation in a meeting by remote communication constitutes presence at the meeting. -4- g /a" SECTION 2.7 Actions Subject to Supermajority Approval. The following actions shall require the approval of at least two- thirds of the total number of authorized directors; provided, however, that the actions listed in subsections (a) through (i) shall not be effective unless the voting member has approved the action or waived its rights as described in Article VIII of these Bylaws: (a) Amendments to the Articles of Incorporation of this corporation. (b) Amendments to the Preamble and Sections 1. 1, 1.2, 1.4, 1.5, 2.4, 2.5, 2.7, 4. 1, 4.2, 4.3, 4:4, -4.5, 8.1, 8.2, 8.3, 8.4, 8.5 or 8.7 of these Bylaws, including Exhibit A, in accordance with Section 7.3 of these Bylaws. (c) Merger, consolidation, liquidation, dissolution, or sale or lease, or other transfer, or mortgage or other grant of a security interest, of or in, all or substantially all of the assets of this corporation, provided that nothing herein is intended to restrict the ability of the corporation to mortgage, grant a security interest or otherwise encumber as collateral or security for debt held by an institutional lender or bond trustee all or any part of the corporation's assets in the ordinary course of business financing transactions where the proceeds of such transactions are used to support the corporation's health care operations. (d) Any subleases or assignments which if executed would bring the aggregate of subleased or assigned space to a percentage of 30% or more of the space identified with or referenced in the corporation's hospital license (provided, however, that space associated with leases or assignments in which the services provided in such space or spaces are "provider -based services" billed by and in the name of this corporation under applicable Medicare statutes and regulations as in effect from time to time shall not be deemed a lease or assignment for purposes of this limitation). (e) Closure of the Hospital. (f) Contributions of cash or cash - equivalents that in the aggregate exceed 1.5 percent of the net income of the corporation during any fiscal year to any person(s) or entit(ies) without receipt of fair market value consideration in return; provided, however, that such contributions shall be made for the charitable purposes described in Section 501(c)(3) of the Internal Revenue Code ( "IRC ") and shall be in furtherance of the corporation's health care mission; and provided further that this provision shall not prohibit: (1) the provision of free or reduced price medical care in accordance with the Hospital's charity care /community benefit policies or payor agreements; (2) payment of recruitment incentives to physicians and other health care practitioners provided in accordance with the applicable policies of this corporation; or (3) donations of used equipment or supplies to a governmental -5- entity or nonprofit organization exempt from income tax under IRC Section 501(c)(3). (g) Add additional members or create additional member rights. (h) Any action(s) the result of which would cause this corporation to fall outside the definition of the Fundamental Nature of the corporation, or a transfer of assets to a joint venture in which this corporation is a participant (whether or not controlled), the result of which would be that this corporation would no longer directly meet the Fundamental Nature definition. (i) Transfer of assets to an entity wholly owned or wholly controlled by this corporation (unless such wholly owned or controlled entity gives to the City the same director appointment, membership, and other rights as the City possesses with respect to this corporation, in which case, such transfer will require in any event a supermajority approval). (j) Transfer of assets to an entity wholly owned or wholly controlled by this corporation, in which the City has the same director appointment, membership, and other rights as the City possesses with respect to this corporation. (k) Transfer of assets to a joint venture in which this corporation is a participant (whether or not controlled). (1) Closure of Emergency Room or transfer of nursing home. (m) Entering into a management agreement with a third party, other than the manager as of the date of approval of these Bylaws, covering the day -to -day operations of all or substantially all of the Hospital and/or nursing home owned by this corporation. (n) Declaration of a dividend to the member. (Dividends are not contemplated, however, the tool is available if extraordinary /windfall circumstances arise, should the Board of Directors choose to use it.) (o) Delegation of authority to the Executive Committee to approve specific transactions identified in Section 4.3(e). OFFICERS SECTION 3.1 Designation and term. The officers of this corporation shall include a Chair, a Vice Chair, a Secretary, a Treasurer, and a President. Officers other than the President shall be elected by the Board of Directors to serve for terms of one year and until their respective successors are elected and have qualified. The President shall serve at -6- a (a-) the pleasure of the Board of Directors. Any officer may at any time be removed by the Board of Directors with or without cause. Any officer may resign at any time by giving written notice to the Chair or the Secretary. The resignation shall be effective without acceptance when the notice is received by the Chair or the Secretary, unless a later effective date is specified in the notice. The same person may hold more than one office at the same time, except the offices of (a) Chair and Vice Chair and (b) Chair and Secretary. The officers, except the Chair and Vice Chair, need not be directors of this corporation. SECTION 3.2 Chair. The Chair shall, when present, preside at meetings of the Board of Directors, and shall perform such other duties as are prescribed by the Board of Directors. The Chair shall not also be the President. SECTION 3.3 Vice Chair. During the absence or disability of the Chair, it shall be the duty of the Vice Chair to perform the duties of the Chair. SECTION 3.4 Secretary. The Secretary shall perform or properly delegate and oversee the performance of the following duties: (a) keep accurate minutes of all meetings of the Board of Directors and of the members; (b) be responsible for the custody of the records, documents and papers of this corporation; and (c) keep proper records of all transactions of this corporation. The Secretary shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice to the office of Secretary, or imposed by these Bylaws. SECTION 3.5 Treasurer. The Treasurer shall perform or properly delegate and oversee the performance of the following duties: (a) keep accurate financial records of this corporation; (b) deposit money, drafts, and checks in the name of and to the credit of this corporation in the banks and depositories designated by the Board of Directors; (c) endorse for deposit notes, checks, and drafts received by this corporation as ordered by the Board of Directors, making proper vouchers for the deposit; (d) disburse corporate funds and issue checks and drafts in the name of the corporation, as ordered by the Board of Directors; and (e) upon request, provide the Chair and the Board of Directors an account of transactions of this corporation and of the financial condition of this corporation. The Treasurer shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice to the office of Treasurer, or imposed by these Bylaws. SECTION 3.6 President. The President shall be the chief executive officer of this corporation. He or she shall: (a) have general active management of the business of this corporation; (b) see that orders and resolutions of the Board of Directors are carried into effect; and (c) have the authority to sign and deliver in the name of this corporation deeds, mortgages, bonds, contracts, or other instruments pertaining to the business of this corporation, except in cases in which the authority to sign and deliver is required by law to be exercised by another person or is expressly delegated by the Articles of Incorporation, the Bylaws or the Board of Directors exclusively to one or more other persons. -7- SECTION 3.7 Additional powers. Any officer of this corporation, in addition to the powers conferred upon him or her by these Bylaws, shall have such powers and perform such additional duties as may be prescribed from time to time by the Board of Directors. SECTION 4.1 Committees. Except as ided in Section 4.2 of these Bylaws, f° ara:nT the FxeetAiv. Cofn...:..ea *w:..This corporation shall not have committees witheut nless formed by or with the approval of the Board of Directors No committee shall have the authority of the Board of Directors except as provided in Section 4.2 of these Bylaws regarding the Executive Committee. The Board of Directors may establish advisory committees, the members of which shall be appointed by the Board of Directors or, if expressly authorized by the Board of Directors, by the Chair. All fnembefs of s- committees shall be .eting niefabers. Eaeh sue Each committee shall at all times be subject to the control and direction of the Board of Directors. Except as otherwise provided in these Bylaws, committee members need not be directors. SECTION 4.2 Executive Committee. There shall be an Executive Committee consisting of the Chair, Vice Chair, Secretary and Treasurer. If none of these is an Appointed Director, the Board shall elect an Appointed Director to serve as a voting member of the committee. The President; shall serve as an ex officio non - voting member-of the committee. The Chair of this corporation shall be the chair of the Executive Committee. The Executive Committee shall have the authority of the Board of Directors in the management of the business of this corporation in the interval between meetings of the Board of Directors, provided, however, that the Executive Committee shall not have authority to act on any matter described in Section 2.7 of these Bylaws or matters listed in Section 4.3 below, except as specifically provided in Section 4.3(e) and Section 2.7(o). The presence of all the members of the Executive Committee shall constitute a quorum at any meeting thereof, but the committee members present at any meeting, although less than a quorum, may adjourn the meeting from time to time. SECTION 4.3 Prohibited Actions. Notwithstanding any provision of these Bylaws apparently to the contrary, the Executive Committee shall not have the authority to take any of the following actions: (a) Amend or repeal the Articles of Incorporation or Bylaws of this corporation; (b) Elect, appoint, or remove any member of the Board of Directors or the Executive Committee, or any officer of this corporation; (c) Adopt or approve a plan of merger or consolidation with another corporation; -8- 9 (00 (d) Authorize the sale, lease, exchange, mortgage or other disposition of all or substantially all the assets of this corporation; (e) Authorize the sale, lease, exchange, mortgage or other disposition of the assets of this corporation in the ordinary course of business, unless the Board of Directors has by resolution approved such delegation as provided in Section 2.7(o) and such resolution references both the specific transaction and the specific assets for which authority is delegated; (f) Authorize the voluntary dissolution of the corporation or revoke proceedings t etherefor; or (g) Amend or repeal any resolution of the Board of Directors. SECTION 4.4 Audit/Compliance Committee. There shall be an Audit/Compliance Committee consisting of the Treasurer, who shall be the chair of the committee, and at least one other Direeterdirec r. There shall be at least one Appointed Director, who may be the Treasurer, and at least one non - director member with expertise in the areas of finance or consumer advocacy The Treastifer of this ^t' ^ shall be the ehaif of the Audit C mitte The Audit/Compliance Committee shall (a) review this corporation's financial matters and report on them to the Board of Directors, (b) recommend independent auditors for approval by the Board of Directors, and (c) review this corporation's compliance program, including matters relating to charity care, discounts and collections and report on the program to the Board of Directors. SECTION 4.5 Governance Committee. There shall be a Governance Committee consisting of three or more Direetersda. There shall be at least one Appointed Director, and the number of Community Directors shall equal or exceed the number of Appointed Directors. The Governance Committee shall nominate individuals to serve as Community Directors and officers of this corporation, shall supply criteria and desired competencies, may suggest candidates to the City for Appointed Director positions and shall have such other duties as the Board of Directors shall determine from time to time. The corporation is committed to maintaining a Board having diverse competencies, aimed at effective oversight of the health care enterprise. The Governance Committee shall periodically review and recommend to the Board the general and special competencies that should be reflected in Board membership and create, manage and regularly review a list of potential board members from which a slate of candidates for Board of Director vacancies can be developed (the "Candidate List "). For vacancies in Appointed Director positions, the Governance Committee will forward to the City the Board's most recently adopted competency based board criteria, identify the special competencies with respect to which the Governance Committee believes the current Board has gaps, and list those candidates from the Committee's Candidate List who would -9- 9 Cad comply, in the Committee's judgment, with the criteria, given the competencies of the other current Board members. In making its appointments, the City will review the corporation's board criteria, the special competency gaps and consider names forwarded, if any, by the Governance Committee, but shall be free to appoint whomever the City determines. For vacancies in Community Director positions, the Governance Committee will identify and forward to the Board the special competencies with respect to which the Governance Committee believes the current Board has gaps, and list those candidates from the Committee's Candidate List who would comply, in the Committee's judgment, with the Board's most recent competency based board criteria, taking into account the competencies of the other current Board members. In filing vacancies for Community Board positions, the Board will review the corporation's board criteria, the special competency gaps and consider names forwarded by the Governance Committee, but shall be free to elect such individuals as it determines. SECTION 4.6 Meetings and voting. Meetings of each advisory committee shall be called and held in accordance with the provisions of Sections 2.2 to 2.6 of these Bylaws as they apply to meetings of the Board of Directors. INDEMNIFICATION SECTION 5.1 Indemnification. This corporation shall indemnify its directors, officers, committee members, and employees against such expenses and liabilities, in such manner, under such circumstances, and to such extent, as required or permitted by Minnesota Statutes, Section 317A.521, subd. 2, as amended from time to time, or as required by other provisions of law; provided, however, that no indemnification shall be made with respect to any claim, issue or matter as to which the person shall be adjudged to be liable to this corporation. SECTION 5.2 Advances. This corporation shall advance expenses in such manner, under such circumstances, and to such extent, as required or permitted by Minnesota Statutes, Section 317A.521, subd. 3, as amended from time to time; provided, however, that this corporation shall not advance expenses incurred in defense of a claim brought by or in the right of this corporation or expenses incurred in pursuing a claim against this corporation. The provisions of this Section are not intended to limit the ability of a person to receive advances as an insured under an insurance policy maintained by this corporation. SECTION 5.3 Insurance. This corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, committee member, or employee against any liability asserted against and incurred by such person in or arising from such capacity, whether or not this corporation would otherwise be required to indemnify the person against the liability. -10- 2 (a) MEDICAL STAFF SECTION 6.1 Authority. In accordance with applicable law, the Board of Directors shall have the ultimate authority to determine the categories of practitioners eligible and criteria for appointment to the medical staffs of facilities operated by the corporation. The Board of Directors shall have final authority on all matters involving medical staff membership, clinical privileges and corrective action after consideration of the medical staffs recommendations; provided, however, that the Board of Directors may act in any event in which the medical staff fails to adopt and submit such recommendations within the time frame set forth in the medical staff bylaws and any supporting documents. SECTION 6.2 Dele ag tion. Subject to the ultimate authority of the Board as set forth in Section 6.1 of these Bylaws and in accordance with legal and accreditation requirements, the Board of Directors has authority to delegate to the medical staffs of the facilities operated by the corporation the responsibility for monitoring and ensuring the quality of care provided in such facilities, making recommendations concerning applications for appointment and reappointment to the medical staff and clinical privileges, and such other matters as the Board of Directors in its discretion deems appropriate. MISCELLANEOUS SECTION 7.1 Fiscal year. Unless otherwise fixed by the Board of Directors, the fiscal year of this corporation shall begin on January 1 and end on the succeeding December 31. SECTION 7.2 Corporate seal. This corporation shall have no seal. SECTION 7.3 Amendments. The Bylaws of this corporation may be amended only as provided in this Section 7.3. (a) The Board of Directors may amend the Sections of the Bylaws listed in Section 2.7(b) of these Bylaws by the approval of at least two - thirds of all directors of this corporation as provided in Section 2.7, provided, however, that no such amendment shall be effective without the approval of the voting member. (b) The voting member may propose amendments to the Sections of the Bylaws listed in Section 2.7(b) above, provided, however, that no such amendment shall be effective without the approval of at least two- thirds of all directors of this corporation as provided in Section 2.7 of these Bylaws. (c) Sections of the Bylaws other than those listed in Section 2.7(b) above may be amended by the affirmative vote of a majority of the directors present at a meeting of the Board of Directors at which a quorum is present. The voting member shall be notified of any such amendments, but such amendments shall -11- be immediately effective irregardless of notice and without approval by the voting member. The voting member shall have no power to propose amendments to Sections other than those listed in Section 2.7(b) above. (d) Notwithstanding the foregoing, the voting member may unilaterally amend any Section of the Bylaws of this corporation upon any of the following events: (i) the Lease between this corporation and the City effective December 31, 2007 terminates for any reason other than as a result of the exercise of the purchase option set forth in such lease, (ii) continued noncompliance by this corporation with the Operating Parameters set forth in Sections B, C or D of Exhibit A attached to these Bylaws at the expiration of the cure period as provided for such Operating Parameters, provided that the City furnishes written notice within the periods stated in such Sections of its intent to exercise its amendment rights, or (iii) the Board of Directors votes to undertake any action described in Section 2.7(c) or 2.7 (d) of these Bylaws or to cease all or substantially all the operations of this corporation. The voting member shall have no power to amend these Bylaws unilaterally in any other circumstance. SECTION 7.4 Authority to borrow, encumber assets. No director, officer, agent or employee of this corporation shall have any power or authority to borrow money on its behalf, to pledge its credit or to mortgage or pledge its real or personal property except within the scope and to the extent of the authority delegated by resolutions adopted from time to time by the Board of Directors. Authority may be given by the Board of Directors for any of the above purposes and may be general or limited to specific instances. SECTION 7.5 Execution of instruments. Deeds, mortgages, bonds, checks, contracts and other instruments pertaining to the business and affairs of this corporation may be signed on behalf of this corporation by the President, the Chair, the Vice Chair, or such other person or persons as may be designated from time to time by the Board of Directors. SECTION 7.6 Deposit of funds. All funds of this corporation shall be deposited from time to time to the credit of this corporation in such banks, trust companies or other depositories as the Board of Directors may approve or designate, and all such funds shall be withdrawn only in the manner or manners authorized by the Board of Directors from time to time. LIMITED MEMBER RIGHTS SECTION 8.1 Context for Creation of Member Rights. As described in the Preamble to these Bylaws, this corporation was formed by a community task force, which believed that this corporation should provide certain limited rights to the City concerning the commitment of this corporation to continue its mission. This corporation agrees that the City should receive the benefit of all residual assets should all or substantially all of the assets of the corporation be sold, merged with, or leased or transferred to others, or should this -12- a (Q) corporation cease operations as a health care provider of the type contemplated under these Bylaws. Although this corporation had no voting members when it was incorporated, the Board of Directors has determined that it is in the best interests of this corporation to permit the City to become a voting member solely for the purpose of ensuring that the City receives the benefit of any residual assets or resources and has the opportunity to approve the final disposition of the corporation's assets or the proceeds from disposition thereof. Accordingly, these Bylaws confer on the City certain limited member rights which become exercisable only upon the occurrence of events or Board of Director actions described herein. If or when those events occur, the City may exercise the membership rights described in these Bylaws. The City shall have no membership rights other than those described in these Bylaws. The rights set forth herein require acceptance of such membership rights by action of the City Council at any time following adoption of these Bylaws. SECTION 8.2 Limited Membership Rights. The City shall have the following membership rights, and only these membership rights: (a) In the event that the Board of Directors approves an action described in Section 2.7(a) -(i) of these Bylaws, the City has the power to approve or veto the action. The action shall not be effective without the approval of the City. (b) As described in Section 7.3 of these Bylaws, the City has the power to approve and propose amendments to these Bylaws. (c) The City may sell or transfer its membership rights to this corporation or to a third party, but only if such sale or transfer is approved in advance by at least two - thirds of the directors of this corporation. The consideration given in exchange for such membership rights will be determined by the parties to the transaction, but in any event, is wholly unrelated to any purchase option or payment obligations set forth in the Lease. SECTION 8.3 Resig an tion. The City may resign one or more of its enumerated membership rights at any time, but shall not have the right thereafter to reinstate such rights. SECTION 8.4 Dues. This corporation shall not have the right to impose dues, assessments or fees on the City without the consent of the City. SECTION 8.5 Dividends. The City shall have the right to receive dividends as a member. (Dividends are not contemplated, however, the tool is available if extraordinary /windfall circumstances arise, should the board ever choose to use it.) SECTION 8.6 Member Meetines. This corporation shall not be required to hold annual meetings of the member as a result of the limited membership rights set forth in Section 8.2 of these Bylaws. -13- 9(a) SECTION 8.7 No Prospective Waiver. No consent given, or waiver by, the member with respect to any right under these bylaws shall be deemed or construed to be consent or waiver with respect to any other application of such right or other rights, and the failure to act with respect to a right, or failure to declare that a right has been triggered, shall not constitute a waiver of such rights hereunder, except as specifically provided in Exhibit A or Section 7.3. -14- 1.114 W.11A y 11f:111113 Y 1[1 Operating Parameters, and Effects of Default The corporation and the City (as a limited member) have agreed that the corporation will exceed certain performance parameters and fundamental standards set forth in Sections A, B, C and D, below (collectively, the "Operating Parameters "). On or before the 150th day after the end of this corporation's Fiscal Year, this corporation will submit to the City its computations and certification of compliance with each of the Operating Parameters set forth in Sections A and B, based on financial results audited by a firm of qualified Certified Public Accountants. Section A If this corporation is not in compliance with any of the Operating Parameters set forth in this Section A when such computations are due, this corporation shall provide a written plan detailing how it will satisfy the Operating Parameters in this Section A within a reasonable time period specified by the City (the "Workplan"). The City may also require this corporation to engage, within forty -five (45) days of the City's written notice, a management consultant mutually selected by the City and this corporation (the "Consultant ") for the purpose of reviewing the deficiency and making recommendations regarding the operation and administration of the health care system. This corporation shall give full and prompt consideration to the Consultant's recommendations and, to the fullest extent feasible and consistent with this corporation's charitable mission, its obligations under this Agreement, and the interests of the community it serves, this corporation shall undertake its best efforts to implement such recommendations. Notwithstanding the foregoing, this corporation shall take no action pursuant to its Workplan or in response to the Consultant's recommendations that would jeopardize this corporation's 501(c)(3) status, compliance with bond covenants under any Existing Bonds or Future Bonds, or its adherence to legal, regulatory or accreditation standards and requirements. So long as this corporation fails to comply with any of the Operating Parameters set forth in Section A, the corporation will provide to the City, not later than on the last day of each fiscal quarter, or at such other interval as the corporation and the City may agree, a letter from the Consultant (if engaged) to the effect that in his or her judgment, this corporation is implementing such recommendations in orderly fashion. (1) Maximum Annual Debt Coverage Ratio of at least 1.3 times. (2) Cash to Debt Ratio of at least 50 percent. (3) Days Cash on Hand of 60 days. -15- q (00 (4) Operating Margin of at least 1.5 percent in at least 1 of the last 2 Fiscal Years. Section B If the corporation is not in compliance with the Operating Parameters set forth in this Section B, or fails to submit its required computations and certification of compliance with the Operating Parameters, then no later than one hundred twenty (120) days from its receipt of such computations and certification, or in the event of a failure to submit such computations and certifications, no later than one hundred twenty (120) days from their due date, the City may provide written notice to the corporation that its voting member's amendment rights set forth in Section 7.3(d) shall be effective as of such 120th day. The failure to provide such notice in any one Fiscal Year shall not constitute a waiver of the City's notice and member amendment rights in any subsequent Fiscal Year in which the corporation is not in compliance with the Operating Parameters set forth in this Section B, or fails to submit its required computations and certification of compliance. (1) Maximum Annual Debt Coverage Ratio of at least 1.15 times in at least 1 of the last 3 Fiscal Years. (2) Cash to Debt Ratio of at least 30 percent. (3) Days Cash on Hand of 45 days. (4) Operating Margin of at least 1.5 percent in at least 1 of the last 3 Fiscal Years. Section C If at any time, this corporation is not in compliance with any of the Operating Parameters set forth in this Section C, following either (i) a period equal to the cure period stated in the notice from the applicable agency threatening revocation of authority or applicable statute or regulation with respect thereto, or (ii) if no specific cure period is provided by any such notice, statute, or regulation, a period of thirty (30) days from the date of the notice or actual knowledge of the event which resulted in the noncompliance, then no later than one hundred twenty (120) days from the close of such cure period or the date of such notice or knowledge of the event, as applicable, the City may provide written notice to the corporation that its voting member's amendment rights set forth in Section 7.3(d) shall be effective as of such 120th day; provided, however, that the aforementioned cure periods will be tolled during any period in which both (i) the corporation complies with the applicable administrative and/or legal process necessary to challenge or appeal the noncompliance or noncompliance determination, and (ii) during the pendency of such challenge or appeal, and before final determination of the matter, the corporation continues to have authority to provide care and to bill and collect payment for the services rendered to all its patients for whom, otherwise, the noncompliance would prohibit the corporation from billing and collecting for services -16- q(Q) provided to such patients. The failure to provide such notice in any one Fiscal Year shall not constitute a waiver of the City's notice and member amendment rights in any subsequent Fiscal Year in which the corporation is not in compliance with the Operating Parameters set forth in this Section C. (a) The corporation shall obtain such licenses from the Minnesota Department of Health as are necessary to operate in accordance with its Fundamental Nature, including a hospital license, and maintain such licenses in good standing. (b) The corporation shall comply with all applicable Medicare conditions of participation or submit and implement corrective action plans satisfying same (or the federal government's primary health insurance program from time to time if the existing Medicare program is supplanted at any time). (c) The corporation shall obtain and maintain the health care system accreditation by the relevant state survey agency or the Joint Commission. (d) The corporation shall maintain tax- exempt status as an organization described in Section 501(c)(3) of the Internal Revenue Code, as amended. (e) At all times, the corporation shall be authorized and permitted to bill and collect for the provision of hospital and clinic services to patients under such government programs by which they are covered and services to members of the general public. Section D If the corporation is not in compliance with the Operating Parameters set forth in this Section D, then no later than one hundred twenty (120) days from its receipt of notice with regard to a default under paragraph 1 or deficiency under paragraph 2, the City may provide written notice to the corporation that its voting member's amendment rights set forth in Section 7.3(d) shall be effective as of such 120th day. The failure to provide such notice in any one Fiscal Year shall not constitute a waiver of the City's notice and member amendment rights in any subsequent Fiscal Year in which the corporation is not in compliance with the Operating Parameters set forth in this Section D. (1) Compliance with any financial covenants made by this corporation in connection with any future outstanding debt of the corporation issued as described in Section 17.10 of the Lease, which, if not complied with, would constitute an event of default; provided that this corporation shall be considered compliant during any period with respect to which the lender, or trustee acting on its behalf, has waived all defaults. (2) This corporation shall always operate such that the City is within the Hospital's Geographic Service Area as defined in Section 1.1 (c) of these Bylaws. -17- �(a) Amendments The parties acknowledge that the Operating Parameters have been designed as indicators of financial or quality jeopardy undercurrent market conditions. It is also acknowledged that the Operating Parameters are also based on Generally Accepted Accounting Principles ( "GAAP ") that currently exists. This corporation and the City shall, from time to time, amend the Operating Parameters as necessitated by changes in GAAP and market conditions in order to maintain their status as indicators of financial or quality jeopardy, taking into consideration the performance of similarly situated nonprofit corporations having comparable operations to this corporation's. Certain Definitions: Cash To Debt Ratio: For any Fiscal Year, shall mean the ratio of (1) Unrestricted Liquid Funds of the corporation to(2) the Long -Term Debt less cash or investments restricted under any Indenture (that has been excluded from Unrestricted Liquid Funds) of the corporation, all as shown in the audited financial statements of the corporation for any Fiscal Year. Days Cash on Hand: means the result of dividing the Unrestricted Liquid Funds of the corporation by daily operating expenses. Daily operating expenses is computed by dividing Total Operating Expenses less depreciation and amortization expense for such Fiscal Year by the number of days in that Fiscal Year. Existing Bonds: The following bonds issued by City: General Obligation Medical Facilities Revenue Refunding Bonds, Series 199713; General Obligation Medical Facilities Revenue Refunding Bonds, Series 1998A; General Obligation Taxable Medical Facilities Revenue Refunding Bonds, Series 199813; Taxable Medical Facilities Gross Revenue Bonds, Series 1998; General Obligation Medical Facilities Revenue Bonds, Series 2002D; and General Obligation Medical Facilities Revenue Bonds, Series 2003A. Future Bonds: Any indebtedness of the corporation that is entered into on or after the December 31, 2007 effective date of the Lease between the City and the corporation. Fiscal Year: Each 12 month period ending on the date specified in the Bylaws of this corporation. Currently, the fiscal year ends on December 31. Generally Accepted Accounting Principles (GAAP): GAAP is the standard framework of guidelines for financial accounting, as established in the United States of America. It includes the standards, conventions, and rules accountants follow in recording and summarizing transactions, and in the preparation of financial statements. GAAP for this purpose means those guidelines and rules applicable to this corporation. -18- 9 (Q) Long -Term Debt: All obligations which appear as a long -term liability on this corporation's financial statement in accordance with GAAP, including but not limited to revenue bonds, capital leases, bank or installment debt, and contracts for deed, plus or minus any amounts for unamortized discounts /premiums or deferred losses on refunding. However, Long -Term Debt excludes the debt to the City related to the payment required in Section 3.1 of the Lease Agreement. Maximum Annual Debt Coverage Ratio: Net Revenues for a Fiscal Year divided by the Maximum Annual Principal and Interest Requirement due in future fiscal years. The ratio is to be computed based on this corporation's audited financial statements. For any computation that requires reference to one or more Fiscal Years prior to the effective date of the Lease Agreement, the ratio is to be computed using the Net Revenues and Maximum Principal and Interest Requirement from the applicable Fiscal Year audited financial statements of the City enterprise Hutchinson Area Health Care. Maximum Annual Principal and Interest Requirement: The sum of the maximum principal and interest payments required to be paid in any future Fiscal Year on Long -Term Debt. If a Long -Term Debt issue has a balloon payment, for the purposes of this computation that balloon payment is to be amortized over a period of years equal to the lesser of 30 years less the total number of years that the issue has been outstanding (from inception) prior to the date of the balloon payment, or the remaining useful life of the asset being financed. For purposes of the preceding sentence, the "remaining useful life" shall be defined as the number of years remaining until the asset is fully depreciated per the depreciation schedule maintained by the corporation in accordance with GAAP. The interest rate to be applied during this period is equal to the rate required to be paid on the issue in the fiscal year preceding the balloon payment. The principal and interest amortization for the Fiscal Years including and subsequent to the balloon payment is to be computed assuming an equal annual amortization. If Long -term Debt includes a debt issue that has a variable interest rate, for purposes of computing future year interest requirements, the interest rate to be used is the rate in effect at the end of the Fiscal Year for which this computation is being made. Net Revenues: The aggregate of all operating and nonoperating revenues less Total Operating Expenses, except excluding (1) depreciation (2) amortization and (3) interest expense of this corporation, all determined in accordance with GAAP, for a Fiscal Year. However, Net Revenues are to exclude any (1) contribution or investment income that has been restricted by its donor for endowment (permanently restricted) purposes (2) unrealized gains and losses on investments (3) extraordinary or non - recurring items including gains or losses on refinancing, extinguishment of indebtedness, gains or losses of sales or other dispositions of property not in the ordinary course of business. Operating Margin: The sum of Total Operating Revenues less Total Operating Expenses divided by Total Operating Revenues for a Fiscal Year. The ratio is to be computed based on this corporation's audited financial statements. For the two Fiscal Years immediately after the effective date of the Lease Agreement, the prior year(s) ratio is to be computed using the -19- 9(x) Total Operating Revenues and Total Operating Expenses from the applicable Fiscal Year audited financial statements of Hutchinson Area Health Care. Total Operating Expenses: All expenses reported as operating expenses, in accordance with GAAP, that this corporation reports for a Fiscal Year, including (1) depreciation (2) amortization and (3) interest expense. Total Operating Revenues: All revenues reported as operating revenues, in accordance with GAAP, that this corporation reports for a Fiscal Year excluding any (1) contribution or investment income that has been restricted by its donor for endowment (permanently restricted) purposes (2) unrealized gains and losses on investments (3) extraordinary or non- recurring items including gains or losses on refinancing, extinguishment of indebtedness, gains or losses of sales or other dispositions of property not in the ordinary course of business. Unrestricted Liquid Funds: means (i) unrestricted cash, (ii) cash equivalents, (iii) escrow funds, if any, under that certain Escrow Agreement effective December 31, 2007 by and between this corporation and the City of Hutchinson, and (iv) board designated marketable debt and equity securities, but excluding and exclusive of: (1) all trustee -held funds; and (2) borrowed funds that are entrusted with a lender. -20- 9 (a) PUBLICATION NO. 7847 PUBLIC NOTICE OF AWARD TO WHOM IT MAY CONCERN: Pursuant to Minnesota Statute Section 471.345, notice is hereby given that the City Council of Hutchinson, Minnesota, will meet in the Council Chambers of the Hutchinson City Center, 111 Hassan Street SE, Hutchinson, MN at 5:30 pm on the 23rd day of November, 2010, to consider the award of a guaranteed energy savings contract to Ameresco, Inc. for the implementation of energy conservation and facility improvement measures. Dated: 11/07/2010 I � i� •� _I_.:. FlIT-ITM Fr-1 PUBLISHED IN THE HUTCHINSON LEADER ON THURSDAY, NOVEMBER 11TH, 2010. j0(a) AMERESCO� 3reen . Clean . Sustainable �lndcrson lakes Center 3855 West 78m Street, Suite 310 1 Wen Prairie, MN 55344 P: 952 942 5142 FF: 952 942 5421 imeresco.com Project Summary The Project includes a comprehensive city -wide lighting retrofit. The Lighting Survey Process included a building -by- building, fixture -by- fixture audit, resulting in a new fixture and lamp schedule. This will assist the City in the standardization of lighting systems and lower operating and maintenance costs. The Lighting Overview table summarizes the improvements and their benefits. Many of the lighting fixtures will be improved to provide better or the same quality of lighting with reduced energy consumption. A number of existing fixtures are in need of replacement or improvement, and this project will assist in addressing some of that need. In addition, Ameresco will be providing engineering and installation of Variable Frequency Drives for rotor motors at the Wastewater Treatment Facility. Non -Grant Scope This includes lighting improvements at the Fire Dept., Cemetery, Park & Rec Offices and Shops, Rec Center, WTP and W WTP. In addition to energy savings, including these sites in the project will have other benefits to the City (see City -Wide Lighting Scope Overview and Benefits). Many of the lighting systems are obsolete, i.e., T12 systems, or past normal service life and are in need of replacement. Other benefits include reduction in operating and maintenance costs, city-wide standardization of energy efficient lighting systems, better light distribution and levels and some aesthetic improvement. The types of lighting in these facilities are very similar to those included in the grant projects. Run time estimates, some conversions to vapor tight fixtures and outdoor site lighting were some of the contributing factors of these facilities not being eligible to receive grant funding. Project Comparison Table Scope of Work Total Project Grant Projects Non Grant Work Total Project Cost $340,614 $258,218 $82,396 Construction Costs ** $269,183 $204,067 $65,116 Project Fees ** $71,431 $54,152 $17,279 Grants $(139,054) $(139,054) $0 Rebates* $(27,600) $(21,794) $(5,806) City Funding Share $173,960 $97,370 $76,590 Energy Savings (guaranteed) $32,571 $28,926 $3,645 O &M Savings $2,700 $2,153 $547 Simple Payback (Energy Savings) 5.3 3.4 21.0 Energy + O &M Savings Payback 4.9 3.1 18.3 Detailed Study * ** $34,500 NA NA *The rebate amounts are estimates based on calculated reductions in energy use. Project must be completed before application for the rebates can be completed and is only rebate eligible during the same calendar year. * *Costs are relative to information provided in Ameresco's Project Summary provided at 8 -24 -10 Council Meeting ** *The City is responsible for the full cost of the Detailed Study per the Project Development Agreement dated 10/14/2009 Confidential Page 1 11/17/2010 1oCa% r� City of Hutchinson - City Wide Lighting Scope Overview and Benefits A ('lication � +sp L htin Desropmo Dc CPC Oe pt' Notes #2 Airport Rip1src 175W MH high ussr f tore with new T -8 lainp future X X X X X Instill new 28 Watt Tams in esistin T -8 Fixtures X X X OCN L1cV Srn,.. X X X X Replier 400W MH high usW fixture with new High Bay T-8 Iam p fixtute X X X X X #2 City Center, install new 28 Watt Lam s in exisdn T -8 Fixtures X X X Occu r, Sensors X X X X R lace exisdn U -tube fixtures with T lams X x X Chea r Bolbs Re lace incandescent down li is with CFI. lams X X X X Replace existin MH recessed cans down light Csxturs with CFL recessed cans X X X X R,21., coasting Ent S s with new LLD Entag, fixtures X X X X X #2 Ice Arena Install new 28 Watt Lam xisttn '1' -8 Fs- Lures X X X Oc.. sensors X X X X Re laze existin T'121am s with new 28W T81am s and ballast X X X X X 250w NE I Low Fa s Curates with T8 Va r Ti ht furor.. X X X X X Re lace existin Ex,t,ign, with new LRD F,ti,,ign fixtures X X X X X #1 Creek Side Instill new 28 Ni'att Lam sin exisrin T 8 Fixtures X X X Occu an< Sensors X X X X Re lace a MI i h fixture with new'1' -8 lam future X X X X X #1 Events Czntet 1 Install new 28 Watt Lam s in exisrin T -8 Dixtures X X X Occu arse Scnsoa x X X X #1 Evergreen Install new 28 Watt Lams zistin T -8 Fs- xtures X X X D.g Occu c Sets X X X X Re lace existing T12lam s with new MV 1'81am s and ballast X X X X X R lace incandescent down k is with CFL lams X X X X Not Fire Station lace cxistiv T121am s wide vcw 28W TB lam sand ballast X X X X X tiub=md Re ac candescent down I hts with CFL lams X X X X #1 ILNIS Install new M Watt Lams in i.i,tig T -8 Fixtures X X X 0'e. .. 0'e.p.ey sera. x x I x x Re lace 40OW MH high usW Future with new T 8 Ip future X X X X X Replur r.is6,g T121am s with new 28W T8 I, s and ballot X X X X X Re lace es,tsung Exit si s with new LED Exit siM futures X X X X X 300w Halo en Flood lights in Truck NVash Area with 150w Induction Wau Packs X X X #1 Library I Install new 28 NL'att Lams i. cxistirs T -8 Fi cores X X X Occu arse Sensors X X X X lace 400W MH trigh usa,e future with new 32M PSMH fixture X X AMERESCO Confidential 9/1/2010 Page 1 City of Hutchinson - City Wide Lighting Scope Overview and Benefits Gran[ A licasion Q �3`d yOw x,30 .® ,,�` 4`0' dVJ�C" 1�b `' ©�ro b LighnnDescriphon W °� V' 4a V` Y' CsO 2'�o P`e Notes #2 Liquor Hutch insall new 28 Watt iam in existin T -8 Flmres X X X Re lace existin '1'12lam s with new 28W T81am s and ballast X X X X X CFL HIBa fixtures with new 4' — 4 I.p T8HO Fluorescent RB, fixtures X X X X X Not Oakland 11.s rall ncw28Watt Lam sin cxlstur, T- 8FUtures X X X Submitted Cemetery Re lace incandescent down lights with CFL lams X X X X Replace ematurg T12 I= s with new 28W T81arn s and ballast X X X X X Not Park and Install new 28 Watt Lams in existin T -8 Fixtures X X X Submitted Rec Offices Occu cv Sensors X X X X Re lace incandescent down k is with CFL lams X X X X Re lace existing TI2lam s with new 28A' T8 Iam s and ballast X X X X X #1 Police Install new 28 Watt Lam s in existin T -8 Fixures X X X Department Occupant, Sensors x X X X Rc lace inrandescent down li hr, with CFL lams X X X X Re lace existin '1'12lam s with new 2BW T8 laarrn, and ballast X X X X X Delam. Fixtures X X X Not Recreation Install new 28 Watt Lam sin existin T -8 Fixtures X x X Submitted Center Occu an Sensors X X X X Re,l.e incand,s,.t down li is with CFL lams X X x X Re lace extant, T121am s with new 28Nk' T8 lams and ballast X X X X X Replace existin U -robe fixtures with 2' lams X X X Cheaper Bulbs Replace existing open RLM Fixtures with new 12' 3 I=p T8 direct/ indirect sus ended fixtures X X X X X Hnstua CFL Replace existing 12' deco ative poles and fixture heads with new 18'—single 250w MH fixture X X X pushes lighung lighting into parking lot Replace existing 12" square 150w MH surface fixture at comes with new surface mount 70w PSMH X X X X X Not W'IP Install new 28IX'att Lams xisdn 'F -8 Futures X X X Submitted oten an Sensors X X X X Not W VIT Install new 28 Watt Lams in existing T -8 Fi tares X X X Submitted Ocrup=cy Occupancy Sensors X X X X Ae lwe exis '1'12 lams with new 28W 1'8lara s and ballast X X X X X Replace Wall packs with 70W TIPS with full cutoff and photo cell X X X X X X im roved control of Fixture 150w MH i.ow Ba, fixtures in f.nwer Level with T8 HO Fluorescent Vapor Tight fixtures X X X X X X Color eenderin im mvement 250w UPS Low Bav fixtures in Lower Level with T8110 Fluorescent Vapor Tight fixtures X X X I X I X I X Jeolor rendering im rovement for safe p � AMERESCO Confidential 9/1/2010 Page 2 AMERESCO4 ENERGY SERVICES AGREEMENT BY AND BETWEEN THE CITY OF HUTCHINSON, MINNESOTA AND AMERESCO, INC. Confidential & Proprietary Information of Ameresco, Inc. EXECUTION COPY Page 1 [D�a� TABLE OF CONTENTS SECTIONS 1 Scope of Services 2 Ownership of FIM(s) 3 Intentionally Omitted 4 Compensation and Payment 5 Term 6 Guarantee of Savings 7 Right of Entry/Space 8 Changes in Services 9 Warranties 10 CUSTOMER Role and Responsibilities I 1 Defaults by CUSTOMER and Ameresco 12 Remedies for Default 13 Intentionally Omitted 14 Insurance and Bonds 15 Indemnification and Limitation of Liability 16 Agreement Interpretation and Performance 17 Privileged and Proprietary Information 18 Severability 19 Assignment and Subcontracting 20 Waiver 21 Force Majeure 22 Contract Documents 23 Notices 24 Records 25 Representations and Warranties 26 Independent Contractor 27 Additional Representation and Warranties of CUSTOMER 28 NegligenUWrongful Acts 29 Further Documents and Events 30 Third Party Beneficiaries 31 Notifications of Governmental Action - Occupational Safety and Health 32 References ATTACHMENTS ATTACHMENT A PROPERTY DESCRIPTION ATTACHMENT B SCOPE OF SERVICES ATTACHMENT C GUARANTEE OF SAVINGS ATTACHMENT D DELIVERY AND ACCEPTANCE CERTIFICATE ATTACHMENT D (1) PERCENT COMPLETE ACKNOWLEDGEMENT CERTIFICATE ATTACHMENT D (2) CERTIFICATE OF SUBSTANTIAL COMPLETION Confidential & Proprietary Information of Ameresco, Inc. Page 2 I o (a) ATTACHMENT E NOTICE TO PROCEED ATTACHMENT F CHANGE ORDER FORM ATTACHMENT G METHODOLOGY OF CALCULATING SAVINGS ATTACHMENT H DAVIS -BACON REQUIREMENTS Confidential & Proprietary Information of Ameresco, Inc. Page 3 /0(0-) ENERGY SERVICES AGREEMENT BY AND BETWEEN CITY OF HUTCHINSON, MN AND AMERESCO, INC. THIS ENERGY SERVICES AGREEMENT (the "Agreement ") is entered into this 23rd day of November , 2010, by and between the City of Hutchinson, Minnesota, having its principal place of business located at 111 Hassan Street, Hutchinson, MN 55350, (hereinafter referred to as "CUSTOMER ") and Ameresco, Inc. a Delaware corporation having its principal place of business at 111 Speen Street, Suite 410, Framingham, MA 01701 (hereinafter referred to as "Ameresco "). The parties to this Agreement shall be collectively referred to as the "Parties" and individually as a "Party." WHEREAS, Ameresco has submitted a Project Proposal dated February 17, 2010, (the "Proposal "), which was completed and delivered as described in the Project Development Agreement between the CUSTOMER and Ameresco, dated October 14, 2009; WHEREAS, CUSTOMER has selected certain improvement measures and desires Ameresco to complete a project (the "Project ") consisting of certain energy conservation services and installations at CUSTOMER's buildings described in Attachment A (the "Property "), and Ameresco wishes to perform such services; and WHEREAS, CUSTOMER owns and controls the Property NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, the Parties hereby agree as follows: SECTION I SCOPE OF SERVICES (a) Work: Upon delivery by CUSTOMER to Ameresco of a "Notice To Proceed ", substantially in the form attached to this Agreement as Attachment E, Ameresco shall furnish all labor, materials and equipment and perform all work required for the completion of the Scope of Services set forth in Attachment B (the "Scope of Services "), including the installation of the energy conservation measures and facility improvement measures identified therein ( "FIM(s) "), as such Scope of Services and such Attachments may be modified in accordance with this Agreement. CUSTOMER and Ameresco shall mutually plan the scheduling of the FIM(s). The FIM(s) shall be planned to minimize interruption of the daily routine of CUSTOMER's staff except as permitted in writing by CUSTOMER. (b) Disposal: Ameresco shall be responsible for disposal of all non - hazardous equipment and materials which are rendered useless and removed as a result of installation of the FIM(s) pursuant to this Agreement, the cost of which is included as part of the Project Confidential & Proprietary Information of Ameresco, Inc. Page 4 cost. In addition, Ameresco shall, at its cost, cause all lamps which are classified as hazardous wastes by the rules and regulations of the U.S. Environmental Protection Agency (40 CFR Parts 260 through 279) as may be applicable, and PCB - contaminated ballasts, if any, which have been rendered useless and removed as a result of the installations of the FIM(s) to be transported and disposed of. All existing PCB - contaminated ballasts, lamps and all other hazardous materials (if any), which are not being removed or otherwise rendered useless as a result of installation of the FIM(s) pursuant to this Agreement shall remain the responsibility of CUSTOMER and Ameresco shall assume no liability in connection with their removal, transportation or disposal. (c) Asbestos and Lead Paint: (i) Asbestos: Ameresco's Scope of Services is predicated on the viability of the Project without Ameresco encountering or disturbing asbestos or being required to perform any asbestos abatement or taking any other action with respect to asbestos. CUSTOMER hereby represents that there is no asbestos or other hazardous materials in any area wherein Ameresco shall be performing the Scope of Services. In the event that: (a) Ameresco encounters any friable asbestos which is in the vicinity of the Project, (b) Ameresco determines that its work shall result in the disturbance of asbestos material, or (c) Ameresco determines that the presence of asbestos material may impede Ameresco's work, Ameresco shall notify CUSTOMER of the same and CUSTOMER shall, at its cost, cause the asbestos to be lawfully removed, enclosed, encapsulated or otherwise abated in accordance with applicable laws, rules and regulations , or alternatively, CUSTOMER, at its cost, may provide written test reports showing that asbestos in that area has been properly removed, enclosed, encapsulated or otherwise abated in accordance with applicable laws rules and regulations. In the event Ameresco cannot determine whether any particular material does or does not contain asbestos, CUSTOMER upon Ameresco's written request, shall, at CUSTOMER's cost, lawfully perform tests or cause tests to be performed in order to determine whether or not such material contains asbestos and/or whether there are unacceptable levels of airborne particulate material containing asbestos and provide such test report to Ameresco. Under no circumstances shall Ameresco be required to handle asbestos. In the event it encounters asbestos that materially affects the Scope of Services or the Project schedule, Ameresco, at its option, may demobilize and cease construction in the area affected by the presence of asbestos until such time as CUSTOMER performs the actions required to be performed by CUSTOMER that are described in this Subsection. In the event that CUSTOMER does not promptly take action, as provided herein, or notifies Ameresco that it shall not take such action, Ameresco may, at its option, either remove the affected area from its Scope of Services (and make commensurate adjustments to it's rights and obligations) or mutually agree with CUSTOMER to terminate this Agreement in its entirety, any such agreement not to be unreasonably withheld. CUSTOMER shall be responsible for payment of the portion of the Work implemented prior to such termination. CUSTOMER shall be responsible for any and all costs (including termination) incurred by Ameresco that relate to the presence of asbestos. (ii) Lead Paint: Ameresco's Scope of Services is predicated upon the viability of the Project without Ameresco encountering or disturbing lead paint or being required to perform abatement or providing any notice or taking any other action with Confidential & Proprietary Information of Ameresco, Inc. Page 5 fb �a� respect to lead paint. CUSTOMER hereby represents that there is no exposed lead paint in any area in which Ameresco shall be performing the Scope of Services. In the event that Ameresco encounters lead paint in any area where it is to perform the Scope of Services, which services shall require disturbing lead paint, and Ameresco reasonably believes that such paint may be lead paint, CUSTOMER, upon Ameresco's written request, shall, at CUSTOMER's cost, lawfully perform tests or cause tests to be performed in order to determine whether or not such paint contains lead and shall provide a test report to Ameresco. In the event that: such test report demonstrates the presence of lead paint or Ameresco reasonably believes that performing its services under this Agreement is likely to cause the disturbance of lead paint in such a manner as to require Ameresco to provide any notification or take any actions pursuant to any federal, state or local laws, rules, or regulations and Ameresco notifies CUSTOMER of the same, CUSTOMER shall, in either case, at its cost, cause the lead paint to be lawfully removed, or otherwise abated in accordance with applicable laws, rules and regulations. Under no circumstances, shall Ameresco be required to perform services, which cause the disturbance of lead paint. In the event lead paint materially affects the Project Schedule, Ameresco, at its sole option, may demobilize and cease construction in the area affected by the presence of lead paint until such time as CUSTOMER performs the actions required to be performed by CUSTOMER. In the event that CUSTOMER does not promptly take action as provided herein or notifies Ameresco that it shall not take such action, Ameresco may, at its sole option, either remove the affected area from its Scope of Services (and make commensurate adjustments to the rights and obligations of the Parties) or mutually agree with CUSTOMER to terminate this Agreement in its entirety, which agreement shall not be unreasonably withheld and CUSTOMER shall be responsible for payment of the portion of the Work implemented prior to such termination. CUSTOMER shall be responsible for any and all costs (including termination) incurred by Ameresco that relate to the presence of lead paint. (d) Compliance With Law: The Parties shall comply with all federal, state and local laws, rules and regulations now in effect or known to be changing during the construction period, including, without limitation, the provisions of the Davis -Bacon Act as set forth on Attachment H. (e) Taxes: Sales and use taxes associated with the Work are included in the Contract Cost. CUSTOMER shall pay (or, if applicable, reimburse Ameresco for the payment of) all property taxes or other fees and assessments associated with the Work. (f) Duties, Obligations and Responsibilities of Ameresco: (i) All labor furnished under this Agreement shall be performed by personnel who are competent to perform the tasks undertaken, that all materials and equipment provided shall be new and of agreed upon quality unless otherwise agreed, and that the completed FIM(s) shall comply in all material respects with the requirements of this Agreement. (ii) Ameresco shall maintain the Project site in a reasonably clean condition during the performance of the construction Work. Confidential & Proprietary Information of Ameresco, Inc. Page 6 lo(a) (iii) Ameresco shall regularly, as mutually agreed upon by the Parties, clean the Project site of all debris, trash and excess material or equipment generated by Ameresco's construction work hereunder. (iv) Ameresco shall permit CUSTOMER or any of its representatives to enter upon the Project site to review or inspect the FIM(s) without formality or other procedure, except that all such entries must be in compliance with all safety procedures, rules and regulations. (v) Ameresco shall provide equipment manuals and other appropriate information regarding equipment installed hereunder to CUSTOMER at or about the time of "Substantial Completion" as such term is defined below. (vi) Ameresco shall, at its expense, comply with and obtain all applicable licenses and permits required by federal, state and local laws in connection with (i) the installation of the FIMs and (ii) the operation and/or maintenance of the FIMs (to the extent that Ameresco agrees to perform such operations and/or maintenance services). In the event that Ameresco cannot procure any such license or permit in light of a requirement that CUSTOMER is required to do so, CUSTOMER shall promptly procure the same. SECTION 2 Ownership of FIM(s) Ownership and title to each FIM or portion thereof, as applicable, shall automatically pass to CUSTOMER upon Ameresco's receipt of both (i) the executed Substantial Completion Certificate or each Percent Complete Acknowledgement Certificate substantially in the form attached to this Agreement as Attachment D (1), (including CUSTOMER's payment certification) delivered pursuant to Section 4 for such FIM or portion thereof, and (ii) the indefeasible payment in full of all of CUSTOMER's payment obligations to Ameresco pursuant to such Substantial Completion Certificate or Percent Complete Acknowledgement Certificate for such installed FIM or portion thereof. Prior to satisfaction of the conditions set forth in (i) and (ii) in the previous sentence with respect to an FIM or portion thereof, title to each FIM or portion thereof shall remain in the name of Ameresco. If, notwithstanding the intent of the Parties, CUSTOMER is deemed to hold title to any or all of the FIMs or portion thereof prior to the satisfaction of the conditions set forth in (i) and (ii) above, as security for the payment in full of the CUSTOMER'S obligations with respect to each such FIM or portion thereof, CUSTOMER hereby assigns, transfers and grants to Ameresco a security interest in such FIMs. CUSTOMER hereby authorizes Ameresco to file, from time to time, Uniform Commercial Code financing statements in such jurisdictions as may be necessary to perfect and maintain its security interest in such FIMs. If requested by Ameresco, CUSTOMER agrees to execute and deliver all further instruments and documents and take all further action, to the extent such action may not be undertaken by Ameresco on its own, that may be necessary in order to create, perfect and protect Ameresco's security interest in the FIMs and hereby irrevocably appoints Ameresco as CUSTOMER's attorney -in -fact with full power to sign such instruments and documents. Upon delivery of the Substantial Completion Certificate and satisfaction of clause (ii) above for each FIM, Ameresco's interest in the related FIMs shall be released and terminated, in each case without further action on any Party's part. SECTION 3 Intentionally Omitted Confidential & Proprietary Information of Ameresco, Inc. Page 7 16 (a) SECTION 4 Compensation and Payment (a) The "Contract Cost" shall be THREE HUNDRED SEVENTY -FIVE THOUSAND ONE HUNDRED FOURTEEN and 00 /100 Dollars ($375,114.00). (b) Upon delivery by CUSTOMER to Ameresco of a Notice to Proceed, substantially in the form attached to this Agreement as Attachment E, including proof of available funds sufficient to pay the Contract Cost, CUSTOMER shall pay Ameresco ten percent (10 %) of the Contract Cost. Thereafter, Ameresco shall submit invoices to Customer for monthly progress payments based upon the percentage of the Project construction and equipment procurement completed at the end of each month, so that Ameresco is paid the percentage of the Contract Cost that is commensurate with the percentage of completion of the Scope of Services. A Percent Complete Acknowledgement Certificate in the form attached hereto as Attachment D (1) will be executed by Customer during each month of the construction period showing percent complete and monthly payment due. CUSTOMER shall make payment to Ameresco, within thirty-five (35) days after the submission of each such invoice (the "Due Date "). (c) Upon Substantial Completion of the installation of an FIM (or portion thereof as applicable), Ameresco will deliver to CUSTOMER a Substantial Completion Certificate in the form of Attachment D (2). Within fourteen (14) calendar days after receipt of each Substantial Completion Certificate, CUSTOMER shall complete, execute and deliver to Ameresco each such Substantial Completion Certificate. For the purposes of this Agreement the term "Substantial Completion" shall mean that the subject FIM(S) have been installed by Ameresco, and, if such FIM(s) are equipment, such equipment is then operating in a manner consistent with each manufacturer's intended use and CUSTOMER is receiving beneficial use thereof. A final Delivery and Acceptance Certificate, attached hereto as Attachment D, shall be executed by Customer upon Substantial Completion of the installation of the final FIM. Customer shall not unreasonably withhold or delay the execution and delivery of the Delivery and Acceptance Certificate. (d) All amounts not paid to Ameresco on or before the due dates specified in Subsection 4(b), (c) and (d) shall accrue interest at the rate of 1.5% per month. If Ameresco is prohibited by law from charging interest at said rate but is instead limited by law to charging a maximum rate, which is a lower rate, Ameresco shall charge interest at said lower rate on all outstanding balances until payment in full is received. (e) As required by Minnesota Stat. 471.425 subd. 41, all subcontractors who are entitled to payment pursuant to and as a result of the provisions of the applicable subcontract, shall be paid by Ameresco within ten (10) days of receipt of payment from CUSTOMER. SECTION 5 Term This Agreement shall be effective on the date first above written and shall remain in effect through the "Guarantee Period" as such term is defined in Attachment C (the "Term ") or, unless Confidential & Proprietary Information of Ameresco, Inc. Page 8 )0 (a) terminated prior to such date, as provided for in Section 12 of this Agreement. Notwithstanding the foregoing, nothing in this Section 5 shall relieve CUSTOMER from paying amounts, which accrued prior to such termination of this Agreement, when due under this Agreement. SECTION 6 Guarantee of Savings To the extent set forth in Attachment C, and solely in accordance with Attachment C, Ameresco hereby guarantees that the amount of the Documented Savings (as such term is defined in Attachment C and determined in accordance with the measurement and verification plan set forth in Attachment D), shall equal or exceed the Annual Guaranteed Savings Amount (as such term is defined in Attachment C), to be achieved by CUSTOMER as a result of performance of the Scope of Services. SECTION 7 Right of Entry /Space During the Term of this Agreement, CUSTOMER shall provide Ameresco and its employees, agents and subcontractors access to the Property for the purpose of fulfilling Ameresco's obligations under this Agreement. CUSTOMER shall provide required rent free space for the installation and operation of the FIM(s) and shall protect such items and equipment in the same careful manner that CUSTOMER protects the Property. SECTION 8 Chanees in Services The Scope of Services may be changed only by mutual agreement of the Parties evidenced by execution of a "Change Order" substantially in the form attached to this Agreement as Attachment F, including the quantity, quality, dimensions, type or other characteristics of the FIMs. In addition, the Scope of Services may be reduced or expanded including, without limitation, the addition or reduction of other energy efficiency measures and facilities not included within the FIMs scheduled on Attachment B by the execution and delivery of a Change Order Form. Such Change Order Form may serve as a remedy for a partial default pursuant to Sections 11 and 12, below. Any and all change orders will be designed to comply with Minnesota Statutes 471.345, subd. 13 so that such change order(s) will not be subject to the competitive bidding requirements of Section 471.345 or other law or city charter. SECTION 9 Warranties Ameresco hereby agrees as follows: (a) Ameresco warrants that the work hereunder is warranted to be free from defects in materials and workmanship on a FIM by FIM basis, for a period of one (1) year from the date of execution of the Substantial Completion Certificate for such FIM by CUSTOMER. Any manufacturers' warranties which exceed this one (1) year period shall be assigned to Customer to the extent allowed by the manufacturer. Ameresco shall provide CUSTOMER with any and all documentation in its possession related to such warranties. Ameresco shall notify CUSTOMER of any warranties that are not assignable. (b) To furnish adequate protection from damage for all work and to repair damages of any Confidential & Proprietary Information of Ameresco, Inc. Page 9 l6 (d-) kind for which Ameresco or Ameresco's workmen are responsible, to the building or equipment, to Ameresco's own work, or to the work of others. (c) Any equipment or service provided under this Agreement which is or becomes defective during the Warranty Period shall be replaced by Ameresco at its cost. Ameresco shall make any such replacements promptly upon receiving notice from CUSTOMER. (d) EXCEPT AS PROVIDED IN THIS SECTION 9, AMERESCO MAKES NO FURTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER STATUTORY, WRITTEN, ORAL OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES AS TO THE VALUE, DESIGN, AND CONDITION OR FITNESS FOR USE OR PARTICULAR PURPOSE AND MERCHANTABILITY, REGARDING THE FIM(s). SECTION 10 CUSTOMER Role and Responsibilities (a) Operations: CUSTOMER shall operate all equipment installed hereunder in accordance with the manufacturer's recommendations and the manuals supplied to CUSTOMER by Ameresco. (b) Maintenance: CUSTOMER shall, at its expense, maintain the Property in good working condition during the Term of this Agreement. CUSTOMER shall maintain, at CUSTOMER's expense: (i) all equipment and other components included as part of the FfM(s), and (ii) all other equipment which is attached thereto and/or is integral to the proper functioning of the FIM(s). (c) Malfunctions: CUSTOMER shall notify Ameresco immediately in the event of any malfunction in the operation of the FIM(s) installed hereunder. (d) Protection of FIMs: Except in the case of emergency, CUSTOMER shall not remove, move, alter, turn off or otherwise significantly alter the operation of the equipment installed hereunder or the operation of the FIMs, or any individual part thereof, without the prior approval of Ameresco, which approval shall not be unreasonably withheld. After receiving Ameresco's approval, CUSTOMER shall proceed as instructed. CUSTOMER shall act reasonably to protect the FIM(s) from damage or loss, if, due to an emergency, it is not reasonable to notify Ameresco before acting. CUSTOMER agrees to protect and preserve the facility envelope and operating condition of all FIMs, mechanical systems and other energy consuming systems located on the Property. (e) Measurement System: CUSTOMER shall not move, modify or otherwise alter the measurement and verification system installed as part of the FIM(s) or any component thereof without the written consent of Ameresco unless such action is in accordance with manuals provided by Ameresco. (f) Adjustment to Baseline: If CUSTOMER does not reasonably protect the FIM(s) or maintain the Property in good repair and good working condition, Ameresco, after thirty (30) days advance notice to CUSTOMER, may adjust the baseline, as identified in Attachment D and Attachment G. (g) Changes to Property or Additional Equipment: CUSTOMER shall notify Ameresco in Confidential & Proprietary Information of Ameresco, Inc. Page 10 10 (0-) / writing at least thirty (30) days prior to making any changes to the Property that may affect the energy usage on the Property, including, but not limited to, changes in the hours or days or time of year that the Property is occupied or operated, the number of occupants (including, but not limited to, staff), the activity conducted, the equipment, the facilities, or the size of the Property. CUSTOMER shall also notify Ameresco regarding increases over time in numbers and usage of "plug in" devices such as computers and printers. In the event Ameresco receives such notification or otherwise determines that such a change has occurred, it may make the revisions to the Attachments or take such other action as may be provided for hereunder. Ameresco may also make retroactive adjustments if CUSTOMER has not provided timely notice and any payments shall be retroactively reconciled to reflect the changed baseline. (h) Energy Usage Data: CUSTOMER shall make available to Ameresco, on a monthly basis for the Term of this Agreement, copies of all energy bills, energy usage data, and any and all other such documentation maintained by CUSTOMER, as may be requested by Ameresco, which is required to perform all of its obligations under this Agreement. (i) Insurance and Risk of Loss or Damage: Without limiting any of its obligations or liabilities under this Agreement, CUSTOMER shall, at its expense, provide and maintain at all times during the Term of this Agreement, sufficient insurance against the loss, theft of or damage to the FIM(s), related equipment, and all equipment installed hereunder, for the full replacement value thereof. In addition CUSTOMER's Commercial General Liability insurance shall be primary for any property damage or bodily injury during the performance of the Work hereunder. Upon installation, CUSTOMER assumes all risk of loss of or damage to the FIM(s) from any cause whatsoever except to the extent that such loss or damage was caused by the sole negligence of Ameresco. In the event of loss or damage to any equipment installed hereunder, CUSTOMER shall promptly notify Ameresco and immediately return the same to good repair with the proceeds of any insurance received to the cost of such repair. If CUSTOMER determines that any of the FIM(s) are lost, stolen, confiscated, destroyed or damaged beyond repair, CUSTOMER shall replace the same with like equipment in good repair in a timely fashion. (j) Telephone: CUSTOMER is responsible for installing and maintaining telephone lines and all associated costs for the FIM(s) telephone lines or applicable energy management system communication systems. (k) Protection. CUSTOMER shall at all times act reasonably to protect the FIM(s) from loss or damage to the same extent and in the same manner in which it protects the Property. (1) Alteration: CUSTOMER agrees not to move or alter or change the FIM(s) in any way that may cause a reduction in the level of efficiency or savings generated by the FIM or the equipment installed hereunder without obtaining Ameresco's written approval. (m) Storage: CUSTOMER shall provide rent free space for Ameresco, or any of its subcontractors, to mobilize and store supplies, tools and equipment during installation of the FIM(s) or other activities by Ameresco on the Property as available pursuant to this Agreement for which such storage space may be required with locking capacity acceptable to Ameresco. Only Ameresco or any of Ameresco's subcontractors, and CUSTOMER's assigned personnel shall have access to storage. CUSTOMER shall not Confidential & Proprietary Information of Ameresco, Inc. Page 11 1 e (a) be liable for loss or damage to any supplies, tools or equipment stored during installation of the FIM(s) except to the extent such loss or damage is the result of CUSTOMER's negligence. (n) Fuel: CUSTOMER shall procure and pay for all energy and fuel for the operation of the Property. (o) Filings: CUSTOMER shall make all filings, if any, required of it by the State of Minnesota relating to the Project. Ameresco shall reasonably cooperate with CUSTOMER regarding any such filings. (p) Cooperation during Construction: CUSTOMER acknowledges and agrees that completion of the Scope of Services is dependent on CUSTOMER's cooperation in relocating personnel, furniture and equipment or taking such other actions as may be necessary by CUSTOMER in order to prepare space for work by Ameresco. CUSTOMER agrees to take all such actions as is reasonably requested by Ameresco in a timely manner in order to allow the Scope of Work to be accomplished hereunder. SECTION 11 Defaults by CUSTOMER and Ameresco (a) By CUSTOMER. CUSTOMER shall be in default under this Agreement upon the occurrence of any of the following: (i) CUSTOMER fails to pay when due any amount to be paid under this Agreement and such failure continues for a period of five (5) business days after notice of overdue payment is delivered by Ameresco to CUSTOMER; (ii) CUSTOMER fails to perform any of its required duties or obligations under this Agreement and fails to cure such failure and the effects of such failure within thirty (30) days of receipt of written notice of default, unless such failures and effects cannot be completely cured within thirty (30) days after said written notice, in which case a default shall exist only if CUSTOMER does not commence and diligently pursue to cure such failures and effects as soon as practicable; (iii) CUSTOMER enters receivership, or makes an assignment for the benefit of creditors, whether voluntary or involuntary, or a petition is filed by or against CUSTOMER under any bankruptcy, insolvency or similar law and such petition is not dismissed within sixty (60) days. (iv) CUSTOMER fails to cooperate in relocating personnel, furniture and equipment or to take such other actions as may be necessary by CUSTOMER in order to prepare space for work by Ameresco as is reasonably requested by Ameresco in a timely manner in order to allow the Scope of Work to be accomplished hereunder, may result in a Default in respect of the specific FIM or FIMs, that the failure is related to. (b) By Ameresco. Confidential & Proprietary Information of Ameresco, Inc. Page 12 /0(a) Ameresco shall be in default under this Agreement if Ameresco fails to perform any of its material duties or obligations under this Agreement and fails to cure such failure or effects of such failure within thirty (30) days of receipt of written notice of default, unless such failure or effects of such failure cannot be completely cured within thirty (30) days after said written notice, in which case a default shall exist only if Ameresco does not promptly commence and diligently pursue to cure such failure as soon as practicable. SECTION 12 Remedies for Default (a) In the event CUSTOMER defaults under this Agreement, Ameresco may: (i) bring actions for any remedies available at law or in equity or other appropriate proceedings for the recovery of damages, including amounts past due, and/or bring an action in equity for specific performance; and (ii) with or without recourse to legal process, Ameresco may terminate this Agreement by delivering written notice of termination at least thirty (30) days prior to the requested termination date. (iii) For a partial Default by CUSTOMER, Ameresco, at its option may, (a) Terminate the specific FIM or FIMs, that the failure is related to; or (b) Continue to work with CUSTOMER to install the FIM or FIMs, upon agreement between the parties as to the revised Scope of Work and Schedule and CUSTOMER's delivery of an executed Change Order Form in accordance with Section 8, hereof. (b) In the event Ameresco defaults under this Agreement, CUSTOMER may terminate this Agreement and bring an action in law for direct damages, or, for a default which occurs during the construction period, CUSTOMER may seek an action for injunctive relief. SECTION 13 Intentionally Omitted. SECTION 14 Insurance and Bonds (a) By Ameresco: Without limiting any of its obligations or liabilities under this Agreement, Ameresco shall provide and maintain at its expense, the following insurance coverage where reasonable market availability for such insurance exists: (i) Workers' Compensation and Employer's Liability Insurance as required by law. (ii) Comprehensive General Liability Insurance, including contractual liability, Bodily Injury per person, $1 million; Bodily Injury per occurrence, $1 million; Property Damage per occurrence, $1 million; Personal Injury per occurrence, $1 million; and Excess Liability, $5 million. (iii) Comprehensive Automobile Liability Insurance, including owned, non -owned and hired automotive equipment of, Bodily Injury per person, $1 million; Bodily Confidential & Proprietary Information of Ameresco, Inc. Page 13 !D (a-) Injury per occurrence, $1 million; Property Damage per occurrence, $1 million; and Excess Liability, $5 million. (iv) Ameresco shall deliver to CUSTOMER a Certificate of Insurance naming CUSTOMER as an additional insured party under paragraphs (ii) and (iii), above, and agrees to provide CUSTOMER with at least thirty (30) days notice of cancellation. Ameresco shall deliver to CUSTOMER Performance and Payment Bonds in a sum equal to the Contract Cost conditioned upon faithful performance of the Agreement by Ameresco, for the implementation of the FIM(s) as it may be from time to time modified by Change Orders within ten (10) days of issuance of a Notice to Proceed. The Performance Bond applies only to the installation portion of this Agreement and does not apply in any way to energy savings guarantees, payments or maintenance provisions, except that the Performance Bond shall guarantee that the installation of each F[M will be free of defective materials and workmanship for a period of twelve (12) months following completion and acceptance of the Work, such twelve (12) month period to run on an FIM by FIM basis as provided in Section 9. (b) By CUSTOMER: Without limiting any of its obligations or liabilities under this Agreement, CUSTOMER shall provide and maintain at its expense, insurance coverage consistent with the requirements of section 14 (i) and (ii), above. SECTION 15 Indemnification and Limitation of Liabiti (a) Neither Party nor its respective officers, directors, agents, employees, parent, subsidiaries or affiliates or their affiliates' officers, directors, agents or employees shall be liable, irrespective of whether such claim of liability is based upon breach of warranty, tort, (including negligence, whether of any of the Parties to this Agreement or others), strict liability, contract, operation of law or otherwise, to any other Party, or its affiliates, officers, directors, agents, employees, successors or assigns, or their respective insureds, for incidental, delay, punitive or consequential damages, connected with, related to or arising from performance or non - performance of this Agreement. (b) Ameresco's liability in contract for direct damages under this Agreement shall in all cases be limited to the sum of One Million Five Hundred Thousand Dollars ($1,500,000). (c) Ameresco agrees to defend, indemnify and hold CUSTOMER harmless from and against any and all claims for damages but only to the extent such damages arise by reason of bodily injury, death or damage to property caused by Ameresco's sole negligence or willful misconduct. To the extent that any such damages are covered by or under Ameresco's Comprehensive General Liability Insurance policy, Ameresco shall not be required to indemnify CUSTOMER in excess of the limits of such coverage. Ameresco, however, in no event shall be obligated to indemnify CUSTOMER to the extent that any such injury or damage is caused by the negligence of CUSTOMER or any entity for which CUSTOMER is legally responsible. Ameresco's liability to CUSTOMER pursuant to this Section 15(c) shall in all cases be limited to the actual proceeds of insurance under the policies maintained by Ameresco pursuant to the requirements of this Agreement (d) CUSTOMER agrees to defend, indemnify and hold harmless AMERESCO, its officers, agents and employees, from and against any and all claims for damages but only to the Confidential & Proprietary Information of Ameresco, Inc. Page 14 /6(0-) extent such damages arise by reason of bodily injury, death or damage to property caused by CUSTOMER's sole negligence or willful misconduct. CUSTOMER, however, in no event shall be obligated to indemnify Ameresco to the extent that any such injury or damage is caused by the negligence of Ameresco or any entity for which Ameresco is legally responsible. SECTION 16 Agreement Interpretation and Performance This Agreement shall be governed as to all matters whether of validity, interpretations, obligations, performance or otherwise exclusively by the laws of the State of Minnesota, except those requiring application of the law of another jurisdiction, and all questions arising with respect thereto shall be determined in accordance with such laws. Regardless of where actually delivered and accepted, this Agreement shall be deemed to have been delivered and accepted by all parties in the State of Minnesota. SECTION 17 Privileged and Proprietary Information Ameresco's systems, means, cost, and methodologies of evaluating, implementing, accomplishing and determining energy savings and the terms of the Agreement for this Project shall be considered privileged and proprietary information. CUSTOMER shall use the same level of effort to protect and safeguard such information as it employs to safeguard its own confidential information. CUSTOMER shall not disclose such proprietary information without the express written consent of an officer of Ameresco unless required to do so by statute or regulation. When any request for disclosure of such information is made under any applicable freedom of information law (the "FOIL "), CUSTOMER shall provide prompt verbal and written notice to Ameresco such that Ameresco will have the opportunity to timely object under the FOIL should it desire to object to such disclosure of that information in whole or in part. Ameresco must file any such objection or take such action within five (5) business days of receipt of such notice from CUSTOMER. In the event that CUSTOMER is required to make a filing with any agency or other governmental body, which includes such information, CUSTOMER shall notify Ameresco and cooperate with Ameresco in order to seek confidential treatment of such information included within any such filing or, if all such information cannot be protected from disclosure, to request that CUSTOMER be permitted to redact portions of such information, as Ameresco may designate, from that portion of said filing which is to be made available to the public. SECTION 18 Severabilitv If any provision of this Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, the invalidity of such provision shall not affect the other provisions of this Agreement, and all other provisions of this Agreement shall remain in full force and effect. SECTION 19 Assignments and Subcontracting (a) Ameresco may elect to use subcontractors in meeting its obligations hereunder. (b) CUSTOMER shall not assign, transfer, or otherwise dispose of this Agreement, the FIM(s), or any interest therein, or sublet or lend the FIM(s) or permit the FIM(s) to be Confidential & Proprietary Information of Ameresco, Inc. Page 15 (D (a -) used by anyone other than CUSTOMER and CUSTOMER's employees without the prior express written consent of Ameresco; provided that, CUSTOMER may, without obtaining the consent of Ameresco, assign its rights in the FIM(s) to any financial institution, lender or investor in connection with a leasing or financing arrangement for the FIM(s). (c) Ameresco shall not assign this Agreement in whole or in part to any other party without first obtaining the consent of CUSTOMER, which consent shall not be unreasonably withheld; provided that, Ameresco may assign, without obtaining the consent of CUSTOMER, its rights and obligations under this Agreement in whole or in part to any affiliated or associated company of Ameresco and its rights for payments under this Agreement to any financial institution, lender or investor in connection with a leasing or financing arrangement for the FIM(s). Ameresco shall notify CUSTOMER thirty (30) days prior to any such assignment and CUSTOMER agrees to acknowledge receipt of such notice within five (5) days. SECTION 20 Waiver Any waiver of any provision of this Agreement shall be in writing and shall be signed by a duly authorized agent of Ameresco and CUSTOMER. The waiver by either Party of any term or condition of this Agreement shall not be deemed to constitute a continuing waiver thereof nor of any further or future waiver of any additional right that such Party may be entitled to under this Agreement. SECTION 21 Force Majeure If either Party shall be unable to carry out any material part of its obligations under this Agreement, (except CUSTOMER's obligations to make payments when due), due to causes beyond its control ( "Force Majeure "), including, but not limited to, an act of God, strikes, lockouts or other industrial disturbances acts of public enemies orders or restraints of any kind of the government of the United States or any state or any of their departments agencies or officials or any other civil governmental, military or judicial authority, war, blockage, insurrection, riot, sudden action of the elements, fire, explosion, flood, earthquake, storms, drought, landslide, or explosion or nuclear emergency, this Agreement shall remain in effect but the affected Party's obligations shall be suspended for a period equal to the disabling circumstances, provided that: (a) the non - performing Party gives the other Party prompt written notice describing the particulars of the event of Force Majeure, including but not limited to the nature of the occurrence and its expected duration, and continues to furnish timely regular reports with respect thereto during the period of Force Majeure; (b) the suspension of performance is of no greater scope and of no longer duration than is required by the event of Force Majeure; (c) no obligations of either Party that arose before the event of Force Majeure causing the suspension of performance are excused as a result of the event Force Majeure; (d) the non - performing Parry uses reasonable efforts to remedy its inability to perform; and Confidential & Proprietary Information of Ameresco, Inc. Page 16 10 �� (e) the Term of this Agreement, as mutually agreed upon by CUSTOMER and Ameresco, shall be extended for a period equal to the number of days that the event of Force Majeure prevented the non - performing Party from performing. Any decision by CUSTOMER to close or change the use of the facilities or FIM's at the Property shall not constitute a Force Majeure excusing Customer's performance under this Agreement. SECTION 22 Contract Documents (a) Upon execution of this Agreement by both Parties, this Agreement and its Attachments shall constitute the entire Agreement between the Parties relating to the subject matter hereof, and supersedes all proposals, previous agreements, discussions, correspondences, and all other communications, whether oral or written, between the Parties relating to the subject matter of this Agreement. In the case of any conflict between this Agreement and the Attachments or any other document referred to in this Agreement, the provisions of this Agreement shall control. (b) This Agreement may not be modified or amended except in writing signed by the Parties. (c) Headings are for the convenience of reference only and are not to be construed as a part of the Agreement. Confidential & Proprietary Information of Ameresco, Inc. Page 17 10 �a,� SECTION 23 Notices All notices, requests, demands, elections and other communications under this Agreement, other than operational communications, shall be in writing and shall be deemed to have been duly given on the date when hand- delivered, or on the date of the confirmed facsimile transmission, or on the date received when delivered by courier that has a reliable system for tracking delivery, or six (6) business days after the date of mailing when mailed by United States mail, registered or certified mail, return receipt requested, postage prepaid. All notices shall be addressed to the following individuals: (a) If to CUSTOMER: City of Hutchinson I I IHassan St. NE Hutchinson, MN 55350 Attention: (b) If to Ameresco Ameresco, Inc. 1900 Spring Road, Suite 400 Oak Brook IL, 60523 Attention: Executive Vice President & General Manager, Central Region With a copy to: Ameresco, Inc. 111 Speen Street, Suite 410 Framingham, MA 01701, Attention: General Counsel Either Party may from time to time change the individual(s) to receive notices and/or its address for notification purposes by giving the other Party written notice as provided above. SECTION 24 Records To assist Ameresco in its performance of this Agreement, CUSTOMER shall (to the extent it has not already done so) furnish (or cause its energy suppliers and transporters to furnish) to Ameresco, upon its request, accurate and complete data (kept by CUSTOMER or CUSTOMER's energy suppliers and transporters in the regular course of their respective businesses) concerning energy usage for the existing facilities at the Property, including the following data for the most current thirty-six (36) month period: utility records, occupancy information; descriptions of any changes in building structure or heating, cooling or other systems or energy requirements; descriptions of all energy consuming or saving equipment used on Property; descriptions of all energy management procedures presently utilized. If requested by Ameresco, CUSTOMER shall also provide any prior energy analyses of the Property, to the extent available. SECTION 25 Representations and Warranties Each Party warrants and represents to the other Party that: Confidential & Proprietary Information of Ameresco, Inc. Page 18 �6�a/ (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, or are in accordance with, as to Ameresco, its organic instruments and, as to CUSTOMER, by all requisite action and are not in breach of any applicable law, code or regulation; this Agreement has been duly executed and delivered by the signatories so authorized, and constitutes each Party's legal, valid and binding obligation; (c) Its execution, delivery, and performance of this Agreement shall not result in a breach or violation of, or constitute a material 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; and (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) The persons executing this Agreement are fully authorized by law to do so; and (f) In addition, CUSTOMER warrants and represents to Ameresco that CUSTOMER has obtained or shall obtain all necessary governmental, legal, administrative and any other approval necessary for it to enter into this Agreement. SECTION 26 Independent Contractor Nothing in this Agreement shall be construed as reserving to CUSTOMER any right to exercise any control over or to direct in any respect the conduct or management of business or operations of Ameresco. The entire control or direction of such business and operations shall be in and shall remain in Ameresco, subject only to Ameresco's performance of its obligations under this Agreement. Neither Ameresco nor any person performing any duties or engaged in any work on the Property on behalf of Ameresco shall be deemed an employee or agent of CUSTOMER. Nothing in this Section shall be deemed to be a waiver of CUSTOMER's right to use its Property. CUSTOMER and Ameresco are independent of one another and shall have no other relationship relating to or arising out of this Agreement. Neither Party shall have or hold itself out as having the right or authority to bind or create liability for the other by its intentional or negligent act or omission, or to make any contract or otherwise assume any obligation or responsibility in the name of or on behalf of the other Party. SECTION 27 Additional Representations and Warranties of Customer CUSTOMER hereby warrants and represents to Ameresco that: (a) CUSTOMER intends to continue to use the Property in a manner reasonably similar to its present use; (b) CUSTOMER does not contemplate any changes to the electrical and thermal consumption characteristics of the Property except as may have been disclosed to Confidential & Proprietary Information of Ameresco, Inc. Page 19 lC �a� Ameresco by CUSTOMER in writing prior to the execution of this Agreement; (c) CUSTOMER has provided Ameresco with all records heretofore requested by Ameresco; and (d) CUSTOMER has not entered into any other agreements or understandings for the Property with persons or entities other than Ameresco regarding the provision of the Scope of Services. SECTION 28 Nealieent(Wron¢ful Acts To the extent allowed by law, it is understood and agreed that neither Party to this Agreement shall be liable for any negligent or wrongful acts, either of commission or omission, chargeable to the other, unless such liability is imposed by law, and that this Agreement shall not be construed as seeking to either enlarge or diminish any obligation or duty owed by one Party against the other or against third parties. SECTION 29 Further Documents and Events The Parties shall execute and deliver all documents and perform all further acts that may be reasonably necessary to effectuate the provisions of this Agreement, in that regard, it being understood and agreed that Ameresco covenants and agrees to execute or procure the execution of all documents reasonably required to release any lien held by Ameresco or its assignees upon the termination of this Agreement and payment of all amounts required to be paid by CUSTOMER to Ameresco, pursuant to this Agreement. It being further understood that CUSTOMER also agrees to execute all documents which may be reasonably required for Ameresco to obtain all licenses, permits and governmental approvals required by Ameresco for installation and operation of the FIM(s). Ameresco's obligations hereunder are also subject to obtaining all such licenses, permits and governmental approvals as are required to perform its obligations under this Agreement. CUSTOMER agrees that Ameresco shall have the right to all environmental, energy, tax, financial, and electrical - related attributes, rights, credits, deductions, benefits and characteristics associated with or arising out of the transactions contemplated by this Agreement or associated with the FIMs or with the energy, capacity or other electrical savings created under this Agreement, howsoever created or recognized in the United States, any political subdivision thereof or any foreign jurisdiction (other than dollar savings realized by CUSTOMER from reductions in CUSTOMER's energy use or other operating costs). CUSTOMER shall provide Ameresco all reasonable assistance in perfecting its rights to such attributes, rights, credits, benefits and characteristics. Ameresco's obligations hereunder are subject to obtaining all such required licenses, permits and governmental approvals. Ameresco shall require that its contractors and subcontractors in connection with this Project pay the rate of wages for workmen required for any work or construction to comply with the Department of Labor for the state of Minnesota. SECTION 30 Third Party Beneficiaries Confidential & Proprietary Information of Ameresco, Inc. Page 20 10 (a) Except as may be specifically provided for in this Agreement, the Parties hereto do not intend to create any rights for, or grant any remedies to, any third party beneficiary of this Agreement. SECTION 31 Notifications of Governmental Action _ Occupational Safe and Health The Parties agree to notify each other as promptly as is reasonably possible upon becoming aware of an inspection under, or any alleged violation of, the Occupational Safety and Health Act or any other provision of federal, state or local law, relating in any way to the undertakings of either Party under this Agreement. SECTION 32 References Unless otherwise stated, all references to a particular Attachment or to Attachments herein are to the referenced Attachment or Attachments which are attached to this Agreement and all such referenced Attachments are incorporated by reference within this Agreement. All references herein to a Section shall refer to a Section of this Agreement unless this Agreement specifically provides otherwise. IN WITNESS WHEREOF, the duly authorized officers or representatives of the Parties have set their hand on the date first written above with the intent to be legally bound. CUSTOMER AMERESCO, INC. Authorized Signature Name: Title: Authorized Signature Name: Title: Confidential & Proprietary Information of Ameresco, Inc. Authorized Signature Name: Title: Page 21 / o (a) ATTACHMENT A PROPERTY DESCRIPTION The following buildings, facilities, and areas, which are owned and operated by CUSTOMER, are included in the Scope of Services set forth in Attachment B: Airport 1700 Butler Field Dr SW Hutchinson, MN 55350 City Center 111 Hassan St SE Hutchinson, MN 55350 Civic Arena 900 Harrington St SW Hutchinson, MN 55350 Creekside Compost 1500 Adams St SE Hutchinson, MN 55350 Events Center 1005 Highway 15 S Hutchinson, MN 55350 Fire Department 205 3rd Ave SE Hutchinson, MN 55350 Hutchinson Area Transportation (HATS) 1400 Adams St SE Hutchinson, MN 55350 Library 50 Hassan St SE Hutchinson, MN 55350 Liquor Hutch 245 Washington Ave E Hutchinson, MN 55350 Oakland Cemetery 805 Highway 15 S Hutchinson, MN 55350 Parks Office and Shop 1100 Adams St SE Hutchinson, MN 55350 Confidential & Proprietary Information of Ameresco, Inc. Page 22 jo(a) Police Department 10 Franklin St SW Hutchinson, MN 55350 Recreation Center 900 Harrington St SW Hutchinson, MN 55350 Wastewater Treatment Facility 1300 Adams St SE Hutchinson, MN 55350 Water Treatment Plant 439 Prospect St NE Hutchinson, MN 55350 Confidential & Proprietary Information of Ameresco, Inc. Page 23 lo('-) ATTACHMENT B SCOPE OF SERVICES This Attachment sets forth a description of existing equipment and the Facility Improvement Measures (FIMs), and related equipment to be installed by Ameresco at the buildings set forth in Attachment A within the Property. The Scope of Services defined herein is predicated on the terms and conditions of the Agreement and the following: ♦ Installation of the FIM(s) and the included equipment is subject to change if Ameresco discovers unforeseen conditions at the Property that render its analysis of the Property inaccurate, or significantly affect Ameresco's anticipated economic benefit or Annual Guaranteed Savings. Any changes to the installation of the FIM(s) and the included equipment are subject to approval of CUSTOMER, which approval shall not be unreasonably withheld, conditioned or delayed. ♦ With the exception of lamps and ballasts removed as part of this project, handling or abatement of any hazardous materials, including asbestos containing material, is excluded from the Scope of Services. ♦ The scope of work and associated costs are based on materials / equipment and sub- contractors as noted (or submitted) to the City. Changes to these items may affect pricing of the scope of work to the City. ♦ The Contract Cost set forth in the Agreement is based on 100% availability of rooms / areas / systems to perform noted work scope during normal business hours. Overtime and off -hour shifts (2nd shift and 3rd shift) are not included. During the construction period, Ameresco and CUSTOMER will mutually develop and agree upon an implementation schedule which will include scheduling for the retrofit work planned in each facility and area and the rooms /areas or systems needed to perform noted work scope. ♦ The lighting scope includes only the locations and fixtures noted on associated schedule (Attachment G, Exhibit 1). Not all spaces are being addressed as part of the lighting scope. FIM FIM Description City Wide CW -1 Interior Lighting Improvements Wastewater Treatment Plant WTP W WTP -3 VFD on the Rotors Interior Li¢htin¢ Improvements Ameresco will be furnishing replacement of 32W T8 lamps with more efficient 28W T8 lamps. In addition, Ameresco will de -lamp fixtures (i.e. reduce number of bulbs within a fixture) in certain areas of the buildings. The 28W T8 lamps would use the existing instant start ballast. In addition to the re- lamping of the buildings, occupancy sensors will be furnished for selective areas. These occupancy sensors will provide automatic control of the lighting system that may be turned on and off automatically. New fixtures will be installed as indicated by the attached Lighting Survey & Audit (Attachment G, Exhibit 1) Airport Confidential & Proprietary Information of Ameresco, Inc. Page 24 Iv (aJ ♦ Replace four 175W MH fixtures with 4' T8 lamps ♦ Clean and Relamp existing 4' and 8' 2 -lamp wall bracket fixtures to 28w T8 lamps. Total of 12 Lamps ♦ Install ceiling mounted Occupancy Sensor in Flight Planning room ♦ Install wall switch Occupancy Sensors in 3 bathrooms ♦ Replace existing 400w MH Hi Bay fixtures with new 2x4 — 6 lamp Fluorescent Hi -Bay fixtures. 16 units total. City Center ♦ Replace 142 existing 2x2 — 3 lamp parabolic with new 2x2 — 3 lamp F17 /white parabolic fixture in existing locations. ♦ Clean and Relamp 99 existing 4'— 2 lamp strip / cove lighting fixtures. 128 lamps total. ♦ Relamp 20 existing incandescent downlights with 20w Par 30 CFL lamps. ♦ Replace 30 existing MH recessed cans downlight fixtures with 2 — 32 watt CFL recessed cans. ♦ Install ceiling mounted Occupancy Sensors in Office and Conference Rooms. Total of 19 sensors. ♦ Replace 12 existing Exit signs with new LED Exit sign fixtures. ♦ Relamp 46 existing incandescent recessed cans with 23 watt CFL Par 38 lamps. ♦ Clean and Relamp 19 existing 4'— 1 lamp strip / cove lighting fixtures. ♦ Relamp 2 existing 4' — 2 lamp Industrial fixtures with 28w ES T8 lamps. Civic Arena Main Ice Arena - Interior Building Lighting ♦ Main Arena Entry — Replace 2 existing 4' -2 lamp T12 Vapor Tight fixtures with new 4' -2 lamp T8 Vapor Tights in existing location ♦ Replace existing exit sign with new LED surface mount unit ♦ Hockey Lodge — Clean and Retrofit 6 existing 4'— 4 lamp T12 wraps to 28w ES T8 lamps and Electronic Ballast. Install wall switch Occupancy Sensor. ♦ 2nd level Seating Area— Replace 2 existing 8' — 2 lamp T12 strips with new 8' — 4 lamp T8 units in existing location. Relamp 16 existing 8' -4 lamp T8 retrofitted strips fixtures on structure beams to 28w ES T8 lamps. ♦ Replace 26 existing 8' — 2 lamp T12 strips with new 8'— 4 lamp Vapor Tight fixtures in existing locations. Typical of Arena Office, Concessions, Men's & Women's Restrooms, 6 Locker Rooms, Workshop /Electrical Room and Weight Room. ♦ Replace 2 existing 4' — 2 lamp T 12 strips with new 4' — 2 lamp Vapor Tight fixtures in existing locations. Typical of Arena Office entry and Locker Room #3. ♦ Relamp 4 existing med base Jelly Jar fixtures with 25w CFL lamps. Typical of Men's & Women's Restrooms and Locker Rooms #3 & #4. ♦ Clean and Relamp 17 existing 1x4 2 lamp recessed prismatic troffers in Locker Room Corridor to 28w ES T8 lamps. 34 total lamps. Confidential & Proprietary Information of Ameresco, Inc. Page 25 lO (0-) ♦ Install new 8' — 4 lamp T8 Vapor Tight fixtures in Mechanical / Storage room next to Electrical room. Demo existing lighting. ♦ Install 10 (1 each location) wall switch Occupancy Sensors. Typical of Arena Office, Concessions, Men's & Women's Restrooms and 6 Locker Rooms. ♦ Zamboni Ice Equipment Room — Replace 4 existing 250w MH Low Bays fixtures with 4 — 4' — 6 lamp T8 Vapor Tight fixtures in existing locations ♦ Compressor Room — Replace 5 existing 4' — 2 lamp T12 Industrial fixtures with new 4' — 2 lamp T8 units in existing locations. Relamp 2 remaining 4' - 2 lamp fixtures with 28w ES T8 lamps. West Ice Arena - Interior Building Lighting ♦ Replace 7 existing 8' — 2 lamp T12 / T8 strips with new 8' — 4 lamp Vapor Tight fixtures in existing locations. Replace existing exterior 8' — 2 lamp T12 Vapor Tight with new 8' — 4 lamp T8 Vapor Tight in existing location. ♦ Replace 3 existing Exit / Emergency Lighting Wall Packs with new LED Exit/Emergency Lighting units in existing locations. ♦ Restrooms - Replace 4 existing 8' —2 lamp T12 / T8 strips with new 8' —4 lamp Vapor Tight fixtures in existing locations. Install wall switch Occupancy Sensor. ♦ Replace existing 4' — 2 lamp T12 strip at restroom entry with new 4' — 2 lamp Vapor Tight fixture. ♦ Replace existing 4' — 2 lamp T12 strip at restroom entry with new 4' — 2 lamp Vapor Tight fixture. ♦ Replace existing 8' — 2 lamp T12 strips with new 8' — 4 lamp Vapor Tight fixtures in existing locations. Install Wall Switch Occupancy Sensor. Typical of four Locker Rooms. Creekside Compost Main Building - Office Area Lighting ♦ Replace 10 existing 20 — 4 lamp prismatic troffer fixtures with new 2x4 — 3 lamp T8 prismatic troffer units. ♦ Replace existing 4'— 2 lamp Industrial fixtures in Janitor / Mech. Room with new 4' — 2 lamp strip fixture in existing location. Install wall switch Occupancy Sensor ♦ Install ceiling mounted Occupancy Sensors in Office and Open Office. Total of 2 sensors and power packs. Garbage / Sort Bay ♦ Replace existing 400w MH Hi Bay fixtures with new 2x4 — 6 lamp Fluorescent Hi Bay fixtures in existing locations. 30 units total. Bagging Building - Office Area Lighting ♦ Clean and Relamp 7 existing 4' - 2 lamp Prismatic Wrap fixtures with 28w ES T8 lamps. ♦ Clean and Relamp 4 existing 4' - 4 lamp Prismatic Wrap fixtures in Office with 28w ES T8 lamps Install wall switch Occupancy Sensor. ♦ Install wall switch Occupancy Sensor in Restroom. ♦ Relamp existing Restroom 3 lamp Vanity fixture with 20w CFL vanity lamps. Confidential & Proprietary Information of Ameresco, Inc. Page 26 /0 (0) Bagging Bay ♦ Replace existing 400w MH Hi Bay fixtures with new 2x4 — 6 lamp Fluorescent Hi Bay fixtures in existing locations. ♦ Existing Cold Storage and Exterior 400w MH Hi bays to remain with no work. Events Center ♦ Clean and Relamp 123 existing 2x4 — 3 lamp Parabolic troffers. ♦ Clean and Relamp 38 existing 2x4 — 3 lamp Prismatic Lens troffers. ♦ Relamp 20 existing 4'— 2 lamp strips and Industrial fixtures. ♦ Relamp 2 existing 8' — 4 lamp Industrial fixtures. ♦ Install wall switch Occupancy Sensors in Unisex Restroom and 2 dressing rooms. ♦ Install ceiling mounted Occupancy Sensors in 2 Offices. ♦ Install 2 ceiling mounted Occupancy Sensors and one power pack to control lighting in Men's and Women's Restrooms. ♦ All CFL downlights and Decorative Bowl fixtures to remain with no work. Evergreen Dinning ♦ All 4' — 2 lamp surface mount cloud wrap fixtures to be cleaned and re- lamped to 28w Energy Saving T8 lamps. 39 unit's total. ♦ Replace existing 4'— 2 lamp T12 continuous Prismatic Wrap fixtures with new 4' -2 lamp T8 Prismatic Wrap units in Kitchen Area. 16 units total. Install in same locations. ♦ Replace existing 4'— 2 lamp T12 prismatic wrap fixtures with new 4' - 2 lamp T8 units in Panty Area. 2 units total. Install in same locations. ♦ Clean and Relamp existing 8 lamp Vanity fixtures in Restrooms to med -base CFL Vanity lamps. 2 fixtures total. ♦ Relamp existing med base socket in Janitors Closet with 25w CFL lamp. ♦ Install wall switch Occupancy Sensors in 2 bathrooms. ♦ Install wall switch Occupancy Sensors in 3 offices. Fire Department ♦ Relamp existing incandescent vanity fixtures in restrooms with 9w CFL lamp. 4 total. ♦ Replace existing 4'— 2 lamp T12 surface Prismatic Wrap fixtures with new 4' -2 lamp T8 Surface Prismatic Troffer. 19 units total. Install in same locations. ♦ Replace existing 4'— 4 lamp T12 surface Prismatic Wrap fixtures with new 4' -3 lamp T8 Surface Prismatic Troffer. 1 units total. Install in same locations. ♦ Replace existing 4' — 1 lamp T12 surface Prismatic Wrap fixtures with new 4' -2 lamp T8 Surface Prismatic Troffer. 2 units total. Install in same locations. ♦ Replace existing emergency lighting with 2 head halogen emergency packs. 2 total. Confidential & Proprietary Information of Ameresco, Inc. Page 27 HATS ♦ Clean and Re -lamp existing fixtures in Mechanical /Chemical/Air Rooms. 5 fixtures total. City of Hutchinson Office Area Lighting ♦ Clean and Relamp 8 existing 2x4 — 2 lamp Prismatic lens troffers. ♦ Clean and Relamp 30 existing 2x4 — 3 lamp Prismatic lens troffers. ♦ Clean and Relamp 14 existing 2x4 — 3 lamp Parabolic troffers. ♦ Install ceiling mounted Occupancy Sensors in State Patrol Office and Maintenance Office. Total of 4 sensors and power packs. McCloud County Office Area Lighting ♦ Clean and Relamp 42 existing 2x4 — 3 lamp Parabolic troffers. 126 lamps total. Typical of all offices and open office areas. ♦ Clean and Relamp 4 existing 4' — 2 lamp Industrial fixture in HUB room. ♦ Clean and Relamp 1 existing 4' — 4 lamp Prismatic Wrap fixture in Storage room. ♦ Install ceiling mounted Occupancy Sensors in 6 offices. Total of 6 sensors and power packs. MnDOT Office Area Lighting ♦ Clean and Relamp 55 existing 2x4-3 lamp Parabolic troffers. ♦ Clean and Relamp I i existing 2x4 — 3 lamp Prismatic lens troffers. ♦ Clean and Relamp 1 existing 8'-4 lamp Industrial fixture in Electrical room. ♦ Install ceiling mounted Occupancy Sensors in 7 offices and conference rooms. Total of 7 sensors and power packs. Truck / Maintenance Bay ♦ Replace existing 400w MH Hi Bay fixtures with new 2x4 — 6 lamp Fluorescent Hi Bay fixtures in existing locations. 46 units total. ♦ Demo existing 8' — 4 lamp Industrial fixtures in center run of two truck bays. Total of 10 fixtures. ♦ Replace existing 8'— 2 lamp and 4 lamp T12 Industrial shop fixtures with new 8' — 4 lamp T8 Industrial Shop fixtures. Typical of 12 various locations in Garage. ♦ Replace existing 4'— 2 lamp T12 Industrial shop fixtures with new 4' — 2 lamp T8 Industrial Shop fixtures. Typical of 6 various locations in Garage. ♦ Replace existing Exit lighting and Emergency lighting wall pack with new LED Exit and Emergency lighting combo unit. Typical of five locations. ♦ Demo existing HID wall pack with photo cell at Exit doors. Typical of 4 locations. ♦ Retrofit 19 existing 4' — 2 lamp T12 Industrial fixtures in Parts Dept. (both levels) with 28w T8 lamp and .88bf ballast. ♦ Retrofit 8 existing 4' — 2 lamp T12 Industrial fixtures with 28w T8 lamp and .88bf ballast. Total of 16 lamps and 8 ballasts. ♦ Relamp 2 existing 8' — 4 lamp Industrials in Generator Room with 28w ES T8 lamps. Total of 8 lamps. Confidential & Proprietary Information of Ameresco, Inc. Page 28 16 (0-) ♦ Replace existing 4'— 2 lamp Vapor Tight in Wash area with new 4'— 2 lamp Vapor Tight fixture. ♦ Replace 4 —300w Halogen Floodlights in Truck Wash Area with 150w Induction Wall Packs. Library ♦ Relamp existing 4' — 2 lamp fixtures with new 4' lamps. 159 units total. ♦ Relamp and reballast existing 4' — 2 lamp fixtures with new 4' lamps and ballast. 3 units total. ♦ Relamp and reballast existing 4' — 3 lamp fixtures with new 4' lamps and ballast. 9 units total. ♦ Relamp existing 100watt medium base A -lamp fixtures with 20w CFL dimmable. 1 unit total. ♦ Relamp existing 100watt medium base A -lamp fixtures with 25w CFL. 7 units total. Liquor Hutch ♦ Clean and Relamp 28 existing 4' —2 lamp suspended strip fixtures. • Clean and Relamp 13 existing 4' — 2 lamp T8 Vapor tight cooler fixtures. • Replace 5 existing 8' — 2 lamp F96T12 fixtures in rear stock area with 8' — 4 lamp T8 Industrial Strip fixtures. Install at existing location and mounting height. • Existing 2x2 parabolic fixtures to remain with no work. • Replace 20 existing 6 lamp CFL HiBay fixtures with new 4'— 4 lamp T8HO fluorescent HiBay fixtures. • Clean and Relamp 9 existing 2x4 — 3 lamp Parabolic troffers. Oakland Cemetery Interior Office Area Lighting ♦ All 2x4 -4 lamp and 2x4 -3 lamp recessed prismatic troffers are to be cleaned and re- lamped to 28w Energy Saving T8 lamps. ♦ Relamp existing 4' -2 lamp strip fixture in Mech. Room to 28w Energy Saving T8 lamps. ♦ Install wall switch Occupancy Sensors in bathroom. ♦ Install 2 ceiling mounted Occupancy Sensor in offices Garage Area Lighting ♦ All 8' -4 lamp T8 surface mounted strip fixtures are to be re- lamped to 28w Energy Saving T8 lamps. 12 — 8' 41, fixtures. Chapel Area Lighting ♦ Relamp 5 existing med base incandescent fixtures in basement area to 25w CFL lamps. ♦ Retrofit 8 existing 4' — 21amp T12 strips to 28w ES - T8 lamps and .88bf ballast. ♦ Clean and Relamp 4 decorative pendants in Chapel to 25w CFL lamps. ♦ Clean and Relamp 8 decorative wall sconces in Chapel to 13w CFL lamps. Confidential & Proprietary Information of Ameresco, Inc. Page 29 (0-) ♦ Clean and Relamp 5 existing 4' -2 lamp prismatic wrap fixtures in Chapel Foyer area to 28w Energy Saving T8 lamps. Park Offices and Shops • Relamp 6 existing 4'-2 lamp T8 Prismatic Wrap fixtures to 28w Energy Saving T8 lamps. • Install wall switch Occupancy Sensors in Restroom. • Replace 5 existing 4'-2 lamp T12 Prismatic wrap fixtures with new 4'— 2 lamp T8 Prismatic Wrap fixtures in front two Office areas. • Relamp existing 8' - 2 lamp surface incandescent fixture in Furnace Room to 13w CFL lamps. Garage Area Lighting ♦ All 8' -4 lamp T8 surface/ suspended mounted strip fixtures are to be re- lamped to 28w Energy Saving T8 lamps. Police Department Interior Office Area Lighting — Main Level ♦ Replace existing T12 tube indirect fixture in entry with new 12' — 3 lamp T8 direct / indirect fixture. Suspend at existing height. ♦ Replace 20 existing 2x4 — 4 lamp surface honeycomb troffer fixtures with new surface mount 2x4 — 3 lamp T8 Prismatic Lens fixtures in existing locations. Typical of 1 Open Office and 4 Private Office areas. ♦ Relamp 4 — recessed 4 lamp fixtures in Dispatch Office to 28w ES T8 lamps. ♦ Clean and Relamp 48 existing 4' — 2 lamp recessed or surface mount prismatic troffer fixtures. ♦ Clean and Relamp 4 existing 4'— 2 lamp Restroom Vanity fixtures. Typical of 3 restrooms. Install wall switch Occupancy Sensor. Typical of 3 locations. ♦ Clean and Relamp 6 existing 4' — 2 lamp Security fixtures. Typical of 3 Holding Cells. ♦ Relamp 6 — 4'— 2 lamp surface mounted strips in garage area with 28w ES T8 lamps. Interior Office Area Lighting — Lower Level ♦ Clean and Retrofit 15 existing 2x4 -4 lamp recessed prismatic troffers to 3 lamps fixtures using delamping - retrofit kits. ♦ Clean and Relamp 21 existing 4' — 2 lamp recessed or surface mount prismatic troffer fixtures. ♦ Relamp 13 existing 4' — 2 lamp strips fixtures to 28w ES T8 lamps. Typical of Mech and Storage areas. ♦ Clean and Relamp 4 existing 4' — 2 lamp Restroom / Locker room Vanity fixtures. Squad Car Garage Area Lighting ♦ All 8' -4 lamp T8 surface / suspended mounted strip fixtures are to be re — lamped to 28w Energy Saving T8 lamps. 19 — 8' -41, fixtures. ♦ Clean and Relamp existing 4'— 2 lamp Prismatic Wrap fixture in Restroom with 28w ES T8 lamps. EOC / Training Area Lighting Confidential & Proprietary Information of Ameresco, Inc. Page 30 10 (0 ♦ Replace 15 existing 8'— 2 lamp T12 strip/ Industrial fixtures with new 8' —4 lamp T8 fixtures in existing locations. ♦ Clean and Relamp existing 4' - 2 lamp and 4 lamp Prismatic Wrap fixtures to 28w ES T8 lamps. Typical of 40 locations. ♦ Clean and Relamp 4 existing 4 lamp prismatic troffer fixtures in Training Room to 28w ES T8 lamps. ♦ Relamp 23 existing 75w Incandescent recessed cans fixtures to 23w Dimmable CFL lamps. ♦ Relamp 4 existing 75w Track head fixtures to 23w Dimmable CFL lamps. ♦ Relamp 2 existing 8'— 2 lamp strip fixtures to 28w ES T8 lamps in Armory room. ♦ Relamp 2 existing 8' — 4 lamp strip fixtures in Training breakroom to 28w ES T8 lamps. Recreation Center Recreation Center - Interior Building Lighting Open Lobby and Entry areas — Replace existing open RLM fixtures with new 12' 3 lamp T8 direct / indirect suspended fixtures. Typical of 11 fixture locations. Recreation Center Offices ♦ Replace existing 2x2 prismatic troffer fixtures with new 2x2 — 3 lamp T8 parabolic troffer unit in existing location. Typical of 30 fixtures. ♦ Install 2 new ceiling mounted Occupancy Sensors control Open Office lighting. ♦ Install new wall switch Occupancy Sensor in each office. Typical of 5 offices. ♦ Gym Area corridor — Replace existing 2x2 prismatic troffer fixtures with new 2x2 — 3 lamp T8 parabolic troffer unit in existing location. ♦ Restroom — Replace existing 2x2 prismatic troffer fixtures with new 2x2 — 3 lamp T8 prismatic troffer unit in existing flanged location. Install wall switch Occupancy Sensor. ♦ Mech. / Storage Room — Retrofit existing 4' — 2 lamp strips to T8 lamps and .88bf ballast. 16 lamps / 8 ballast total. Maintain existing controls. ♦ Concessions Room - Replace existing 2x2 prismatic troffer fixtures with new 2x2 — 3 lamp T8 prismatic troffer unit in existing location. Typical of 8 fixtures. Install wall switch Occupancy Sensor. ♦ Towel room - Retrofit existing 4'— 2 lamp strips to T8 lamps and .88bf ballast. 8 lamps / 4 ballast total. Install wall switch Occupancy Sensor. ♦ Locker Room — Clean and Retrofit existing 1x4 — 2 lamp recessed flanged troffer to T8 lamps and .88bf ballast. Replaced existing surface med base circular fixture with new surface CFL ceiling circular fixture. Replace existing 4' — 2 lamp Vapor Tight fixtures with new 4' — 2 lamp T8 Vapor Tight fixtures. Relamp recessed shower light fixtures to 20w CFL med base lamp. Replace existing Exit signs with new LED Exit light fixtures. Relamp Locker Room janitor closet to 25w CFL med base lamp. Confidential & Proprietary Information of Ameresco, Inc. Page 31 10 (a) ♦ Locker Room Entry - Replace existing 2x2 prismatic troffer fixtures with new 2x2 — 3 lamp T8 parabolic troffer unit in existing location. Typical of 2 fixtures. ♦ Locker / Concessions Room - Replace existing 2x2 prismatic troffer fixtures with new 2x2 — 3 lamp T8 prismatic troffer unit in existing location. Install wall switch Occupancy Sensor. ♦ Pool Concessions — Replace existing 4' — 2 lamp Vapor Tight fixtures with new 4' — 2 lamp T8 Vapor Tight fixtures. Install wall switch Occupancy Sensor. ♦ Elec. /Storage Room —Retrofit existing 4'— 2 lamp strips to T8 lamps and .88bf ballast. Exterior Parking Lot lighting ♦ Replace 6 existing 12' decorative poles and fixture heads with new 18' — single 250w MH fixture assembly. Reuse existing base and wiring. Maintain existing controls. ♦ Replace existing 12" square 150w MH surface fixture at 2 entries with new surface mount 70w PSMH fixture. Water Treatment Plant ♦ Clean and Relamp existing fixtures in the office are to 28W T8 ♦ Install wall switch Occupancy Sensors in Storage Room and Men's and Women's Restrooms. ♦ Install ceiling mounted Occupancy Sensors in Supervisors Office, Lab Room, and Lunch Room. Waste Water Treatment Plant Wastewater Treatment Office Lighting ♦ Clean and Relamp existing fixtures to 28W T8 ♦ Install wall switch Occupancy Sensors in 3 Restrooms, 2 Locker Rooms, Office Storage room and Shop Storage Room. ♦ Install ceiling mounted Occupancy Sensors in 2 - Front Offices, 2 - Training/Break rooms and 2 - Maintenance Offices. ♦ Install 2 ceiling mounted Occupancy Sensors and 1 power pack to control existing lighting in open office area. ♦ Install 2 - cold temp rated wall mount Occupancy Sensors in each Vehicle Garage Area. Treatment Building 30 ♦ Clean and Relamp 4 existing 4' - 2 lamp T8 Industrial fixtures in Electrical Room. 8 lamps total. Maintain existing controls. ♦ Replace existing wall pack over double doors. Install new 70w HPS full cut- off wall pack with photo sensor in existing location. Treatment Building 50 — 100 / 200 / 300 ♦ Replace existing wall packs over double doors at each end of building. Install new 70w HPS full cut -off wall pack with photo sensor in existing location. Typical of 3 buildings, 6 total fixtures. Treatment Building 60 Confidential & Proprietary Information of Ameresco, Inc. Page 32 10 (0.-) ♦ Replace 4 existing 4'- 2 lamp T12 Industrial fixtures on Upper Level with new 4' — 2 lamp T8 Industrial fixtures in existing locations. ♦ Replace existing 4' -2 lamp T12 wall bracket fixtures at stair landing with new 4' — 2 lamp T8 Vapor Tight fixture in existing location. ♦ Replace 7 150w HPS Low Bay fixtures in Lower Level with 4'— 4 lamp T8 HO Fluorescent Vapor Tight fixtures. Install at same height and location. ♦ Replace existing wall packs around exterior of building. Install new 70w HPS full cut -off wall pack with photo sensor in existing locations. Total of 4. Treatment Building 80 ♦ Replace 15 existing 4'— 2 lamp T12 wall bracket and vapor tight fixtures with new 4' — 2 lamp T8 Vapor Tight fixtures in existing locations. Treatment Building MBR ♦ Replace 4 - 150w MH Low Bay fixtures in Lower Level with 4'— 4 lamp T8 HO Fluorescent Vapor Tight fixtures — Fixture on 24/7. ♦ Clean and Relamp 6 existing 4' — 2 lamp T8 Vapor Tight fixtures. ♦ Replace I - 150w MH Low Bay fixtures in Compressor Room with 4'— 4 lamp T8 HO Fluorescent Vapor Tight fixtures — Fixture on 24/7. ♦ Replace 3 2' T8 fixtures with 4' — 2 lamp T8 Fluorescent fixtures. Install at same height and location. Treatment Building 100 ♦ Clean and Relamp 4 existing 4' - 2 lamp T8 Industrial fixtures. Treatment Building 90 ♦ Replace existing 4' - 2 lamp T12 wall bracket and Industrial fixtures with new 4' — 2 lamp T8 Vapor Tight fixtures in existing locations. ♦ Replace existing Exit Signs with new LED Exit signs. Total of 3 units /locations. The lighting system improvements include re- lamping, retrofit or replacement of existing fixtures as noted in Section G. The exact quantities and locations are as noted in Section G, Exhibit 1. The scope includes improvements of the noted fixtures only and does not address or includes any fix -up / upgrade / replacement of existing wiring, switching, conduits, hangers, etc. If items are found to be in need of repair or replacement — this is not included in the scope of services and associated costing. Variable Speed Drives (VFD) on the Rotors The existing rotors for the aeration process do not have VFDs on them. The system is turned on and off based on the amount of flow into the plant. There are currently several motors and rotors, but most of the time only two are running at one time, and they turn on and off during the day. ♦ Install two 60 HP Variable Speed Drives ♦ Connect to the existing Process Control System Confidential & Proprietary Information of Ameresco, Inc. Page 33 10 (a-) ATTACHMENT C GUARANTEE OF SAVINGS SAVINGS GUARANTEE The aggregate amount of cumulative Documented Savings (as such term is defined below and as determined in accordance with the measurement and verification plan set forth in Attachment D), shall equal or exceed Two Hundred Thirty-six Thousand Sixty ($236,060.00) Dollars over the Term (the "Guarantee Amount"). The Guarantee Amount has been calculated by subtracting the amount of the grants the Customer expects to receive from the State of Minnesota from the Contract Cost. The "Annual Guaranteed Savings Amount" is: Thirty Two Thousand Five Hundred Seventy One and 00 /100 Dollars ($32,571.00). The Annual Guaranteed Savings Amount is made up of two (2) savings components: 1. Energy Savings; and 2. Repair & Maintenance Savings. Ameresco guarantees that the Annual Guaranteed Savings Amount will be achieved by operation and beneficial use of all FIMs taken in the aggregate, but does not guarantee the savings amount achieved by each individual FIM. Ameresco's obligations in respect of this Guarantee are subject to CUSTOMER performing all of its maintenance and other obligations under this Agreement that may affect achievement of the Annual Guaranteed Savings Amount. In the event that CUSTOMER fails to perform its obligations under this Agreement or interferes with, or permits any third party to take any action which, in the reasonable opinion of Ameresco, may prevent the achievement of the Annual Guaranteed Savings Amount under this Agreement, Ameresco may, after providing CUSTOMER thirty (30) days advance notice, adjust the Annual Guaranteed Savings Amount during the period in which such savings were affected to reflect the impact such actions had on same. Ameresco's rights set forth in this Attachment C shall not be in limitation of any other rights it is entitled to by law and under this Agreement. TERMS OF GUARANTEE Subject to the terms and conditions set forth in this Agreement, Ameresco guarantees that the Documented Savings shall equal or exceed the Annual Guaranteed Savings Amount set forth above for each Guarantee Year during the Term (as defined in Section 5 by reference to the Guarantee Period) until the cumulative Documented Savings over the Term equals the Guarantee Amount (the "Guarantee Period "). The first Guarantee Year shall be the consecutive twelve (12) month period beginning with the first day of the month following the date of the final Delivery and Acceptance Certificate. The Guarantee Period, or Term, as the case may be, shall terminate upon the first to occur of (i) the fifteenth anniversary of the date of the final Delivery and Acceptance Certificate or (ii) the date on which the cumulative Documented Savings equals the Guarantee Amount. Confidential & Proprietary Information of Ameresco, Inc. Page 34 /0 (0-) REVIEW OF GUARANTEED SAVINGS CALCULATIONS CUSTOMER has reviewed the Annual Guaranteed Savings Amount calculations and methodologies in Attachment G and finds that the calculations and assumptions used for calculation of the Annual Guaranteed Savings Amount should result in achievement of the Annual Guaranteed Savings Amount. SAVINGS AUDIT PROCEDURE A measurement and verification plan is set forth in the Delivery and Acceptance Certificate in Attachment D. The total savings achieved by the combined individual savings measures, including any "Stipulated Savings" as such term is defined in Attachment D, shall be deemed the total "Documented Savings ". The Annual Guaranteed Savings Amount shall be deemed achieved when the Delivery and Acceptance Certificate is executed by CUSTOMER. RECONCILIATION Measurements shall be completed and Documented Savings determined as described in Attachment D, the Delivery and Acceptance Certificate, upon completion of installation of the FIM(s). If upon completion of the Measurement and Verification set forth in Attachment D, the Annual Guaranteed Savings Amount is not achieved at the end of the first guarantee year, Ameresco shall pay CUSTOMER the amount by which the Annual Guaranteed Savings Amount exceeds the Documented Savings and may, at Ameresco's sole expense and discretion, including the cost of any required energy auditing, elect one of the following alternatives: (a) Install additional FIM(s), or modifications that are mutually agreed to by CUSTOMER in order to achieve the Annual Guaranteed Savings Amount, or (b) Pay CUSTOMER the amount by which the Annual Guaranteed Savings Amount exceeds the Documented Savings at the end of each Guarantee Year. Stipulated Savings shall not be measured or audited. These savings have been negotiated and agreed upon by Ameresco and CUSTOMER and are stipulated as set forth in Attachment D, Delivery and Acceptance Certificate. Ameresco and CUSTOMER agree that the Stipulated Savings are deemed satisfied for the Term of this Agreement, upon installation of the FIM(s). Confidential & Proprietary Information of Ameresco, Inc. Page 35 10 (a) ATTACHMENT D DELIVERY AND ACCEPTANCE CERTIFICATE This Attachment summarizes the results of the Measurement and Verification process for Projects implemented by Ameresco for CUSTOMER. The Annual Guaranteed Savings Amount is: Annual Energy Savings $29,871 Annual Repair & Maintenance Savings $2,700 Annual Guaranteed Savings Amount $32,571 ENERGY SAVINGS Ameresco guarantees the energy units saved (kWh, therms, gallons, etc) and not the dollar value associated with these savings as the customer's utility rates may change over time depending on purchasing ability, future contracts, etc. The utility rates notes in Table D1 below were used to calculate the energy cost savings in U.S. Dollars associated with the energy units saved for the purpose of this Agreement. CUSTOMER acknowledges that the utility rates set forth in Table D1 are reasonable and shall be used throughout the Term of the Guarantee Period in determining Documented Savings for purposes of the Guarantee. The method of verification of savings varies for each energy savings measure implemented. Table D1 summarizes the baseline utility rates, Table DI -A summarizes the baseline utility usage by month, and Table D2 summarizes the verification procedures used to determine documented savings associated with the project throughout the guarantee period. Table DI Facili Electric Rate. KWH Electric Rate KW Airport $ 0.0744 $ 6.00 City Center $ 0.0743 $ 6.00 Civic Arena $ 0.0743 $ 6.00 Compost $ 0.0741 $ 6.00 Events $ 0.0743 $ 6.00 Evergreen $ 0.0908 Fire $ 0.0927 HATS $ 0.0771 $ 6.00 Library $ 0.0742 $ 6.00 Liquor Hutch $ 0.0814 $ 6.00 Oakland Cemetery $ 0.0993 Parks Offices $ 0.0949 Police $ 0.0790 Rec Center $ 0.0742 $ 6.00 WWTP $ 0.0743 $ 6.00 Water Treatment Plant $ 0.0743 $ 6.00 Confidential & Proprietary Information of Ameresco, Inc. Page 36 /0 (') Table D1 -A Table D2 Savings Category Electrical kWh Electrical kW Jan -09 589,828 1,422 Feb -09 632,677 1,531 Mar -09 587,417 1,672 Apr -09 596,376 1,408 May-09 424,912 1,026 Jun -09 534,644 1,311 Jul -09 550,807 1,258 Aug-09 485,199 1,261 Sep -09 511,694 1,261 Oct -09 604,543 1,323 Nov -09 542,143 1,298 Dec-09 645,588 1,402 TOTAL 6,705,828 16,170 Table D2 Savings Category Verification Method Method A: Partially Measured Retrofit Isolation with Agreed To Interior Lighting Improvements Values. CW -1 The power (Watts) of the existing fixtures and the power (Watts) of the retrofit fixtures will be measured. The power (Watts) of approximately 5% of the fixtures will be measured. Power (Watt) measurements will be performed with a handheld true -RMS meter. Where applicable, the measurements wilt be performed at a wall switch or at a circuit breaker. If it is not possible to isolate the fixtures on one switch then measurements will be performed at the individual fixture. A comparison will then be determined between the proposed and actual pre and post retrofit values. All other parameters are stipulated and savings are calculated as summarized in Attachment G. Post installation measurement will be performed one -time prior to delivery and acceptance and the measured values will be used for all calculations throughout the Guarantee Period. Method A: Partially Measured Retrofit Isolation with Agreed To VFD on the Rotors Values. W W TP -3 Existing SCADA shall provide actual trend data for equipment runtime, average VFD speed, and other equipment operation parameters. Post installation measurement will be performed one -time for a period of one month prior to delivery and acceptance and the measured values will be used for all calculations throughout the Guarantee Period. Ameresco reserves the right to use a new one month trend data period if it is determined the initial one month trend data period occurred during a higher than average flow period. All other parameters are stipulated and savings are calculated as summarized in Attachment G. Confidential & Proprietary Information of Ameresco, Inc. Page 37 10 Cd- Repair & Maintenance Savings All Repair and Maintenance Savings are agreed to and based on calculations and assumptions summarized in Attachment G. No measurement is performed. Stipulated Enerev Savings The Annual Energy Savings identified in the table D3 below are Stipulated Savings documented by the calculations and methodologies described in Appendix G. CUSTOMER agrees that the Stipulated Savings are deemed satisfied upon installation of the related FIMs and the Stipulated Savings shall not be measured or audited. Table D3 Description Stipulated Energy Savings CW -1: Interior Lighting Improvements $0 W WTP -3: VFD on the Rotors $0 Total Annual Stipulated Energy Savings $0 Calculation of Annual Energy Savings Deviation Item D -1 (D- 1)Total Guaranteed Energy Savings $ $29.871 Item D -2 (D- 2)Total Measured Energy Savings Item D -3 (D- 3)Total Stipulated Energy Savings Item D -4 (D -4 = D -2 plus D -3) (D- 4)Total Actual Energy Savings Item D -5 (D -5 = D -4 minus D -1) (D -5) Savings Deviation If the Savings Deviation (Item D -5) is greater than or equal to zero, the Annual Guaranteed Savings Amount shall be deemed satisfied for the Guarantee Period. If the Savings Deviation (Item D -5) is negative it shall be deemed the annual shortfall. The annual shortfall for the first year shall be considered the annual shortfall for the following years until completion of the Scope of Services. Ameresco shall pay CUSTOMER the Savings Deviation (Item D -5 in Exhibit D) amount each year until the guarantee period is complete, or at Ameresco's discretion, shall install additional FIM(s), or make other changes agreed to by CUSTOMER, at Ameresco's cost, in order Confidential & Proprietary Information of Ameresco, Inc. Page 38 10 (0-) to achieve the Annual Guaranteed Savings Amount as set forth in the Agreement. Date completed Confidential & Proprietary Information of Ameresco, Inc. Page 39 10 (0') REPAIR & MAINTENANCE SAVINGS The Annual Repair & Maintenance Savings identified in the table below are Stipulated Savings documented by the calculations and methodologies described in Attachment G. CUSTOMER agrees that the Stipulated Savings are deemed satisfied upon installation of the related FIMs and the Stipulated Savings shall not be measured or audited. Description Stipulated Repair FIM CW -1: Interior Lighting Improvements & Maintenance FIM W WTP -3: VFD on the Rotors Savings CW -1: Interior Lighting Improvements $2,700 Total Annual Stipulated Operational Savings $2,700 PROJECT COMPLETION LOG Table D4 Sub- ro'ect Tasks Completion Date FIM CW -1: Interior Lighting Improvements FIM W WTP -3: VFD on the Rotors (special instructions etc.): Items furnished to CUSTOMER upon accepting this Delivery and Acceptance Certificate: ❑ Receipt of owner's manuals; sets. ❑ Receipt of instruction and training; ❑ Completion of inspection and walk- through. ❑ Receipt of warranty information. The aforementioned Project is hereby completed to the standards set forth in the Agreement denoted above and to the satisfaction of CUSTOMER. CUSTOMER I By: I Title: I Date: CUSTOMER accepts the pre- and post - construction savings measurements as set forth in the Delivery and Acceptance Certificate and agrees that all Guaranteed Savings have been satisfied and that the Work identified in Attachment B is complete. Confidential & Proprietary Information of Ameresco, Inc. Page 40 f (00 CUSTOMER assumes possession thereof on CUSTOMER By: Title: Date: Note: The Ameresco Project Manager may modify this project completion log to allow for the sign -off and tum -over of individual FIM work scope items as they are completed rather than waiting until entire project is 100% complete. Confidential & Proprietary Information of Ameresco, Inc. Page 41 /Q (0) ATTACHMENT D PERCENT COMPLETE ACKNOWLEDGEMENT CERTIFICATE Customer hereby acknowledges receipt and acceptance of the portion of the Facility Improvement Measure (the "FIM ") described in Attachment B to the Energy Services Agreement (the "Agreement ") dated , 2010 between Customer and Ameresco. Customer certifies that the work described in the related application for payment submitted by Ameresco has been completed in accordance with the Agreement and that the FIM(s) are percent complete, as substantiated by sufficient detail provided by Ameresco. Customer agrees to make payment to Ameresco as set forth in Section 4 of the Agreement. Date Accepted by Customer: Accepted for: CITY OF HUTCHINSON Accepted by: Name: Title: ACKNOWLEDGMENT OF AMERESCO Ameresco hereby acknowledges that the total amount due based upon percent complete for the FIM's described in Attachment B, and the Notice to Proceed, hereto is $ Date Accepted by Ameresco: Accepted for: AMERESCO, INC. Accepted by: Name: Title: Confidential & Proprietary Information of Ameresco, Inc. Page 42 /0 (0) ATTACHMENT D (2) CERTIFICATE OF SUBSTANTIAL COMPLETION PROJECT NAME & ADDRESS: PROJECT NO.: CONTRACT DATE: DESCRIPTION: The installation of [list each FIM being accepted with this certificate] under the Agreement has/have been reviewed and found to be substantially complete. The date of Substantial Completion of the forgoing FIM(s) is hereby established as: SUBSTANTIAL COMPLETION The date of Substantial Completion of an FIM is the date certified by Customer when such FIM is sufficiently complete in accordance with the Agreement so that Customer derives beneficial use thereof. The Substantial Completion date set forth above is the date of commencement of applicable warranties for such FIM(s), as required by the Agreement. A list of items to be completed or corrected is identified below as punchlist items. The failure to include any items on such punchlist does not alter the responsibility of Ameresco to complete all work in accordance with the Agreement. CONTRACTOR: Ameresco, Inc., 111 Speen Street, Suite 410, Framingham, Massachusetts 01701 AUTHORIZED NAME: (type or print) CUSTOMER: [CUSTOMER [ADDRESS[ DATE: AUTHORIZED DATE: NAME: (type or print) ITEMS Attach additional page(s) as necessary. Number of pages attached Confidential & Proprietary Information of Ameresco, Inc. Page 43 ro (a) ATTACHMENT E NOTICE TO PROCEED 12010 Executive Vice President and General Manager - Midwest Region Ameresco, Inc. 1900 Spring Road, Suite 400 Oak Brook IL 60523 SUBJECT: NOTICE TO PROCEED To Whom It May Concern: In accordance with the terms of our Energy Services Agreement dated 2010, City of Hutchinson hereby confirms that it has received grants and has other funds available to pay the Contract Cost in accordance with the Agreement and hereby issues this Notice to Proceed to Ameresco pursuant to Section 4 of the Agreement. Sincerely, City of Hutchinson 111 Hassan St SE Hutchinson, MN 55350 Signature Print Name Title Confidential & Proprietary Information of Ameresco, Inc. Page 44 /0 (0-) ATTACHMENT F CHANGE ORDER FORM (Request & Agreement for change in Plans and/or Specifications and/or Contract) Change Request No.:_ Customer: Department: Project No.: Title: I. REQUEST (a) Requested by:_ (b) Description of Contract II. AMERESCO'S AGREEMENT Date: Site: For all costs involved in this change including extensions of time herein requested Ameresco proposes to perform the work described in accordance with the provisions of the subject Agreement and certifies that the attached cost data is accurate, complete and current, and mathematically correct. Payment shall be made on the basis of: (_)(a) Predetermined lump sum total of: (add) (deduct) "(b) Lump sum "not -to- exceed ": (add) (deduct) (Max. price based on contract or negotiated unit prices) "(c) Time & Material Basis "not -to- exceed ": (add) (deduct) (Computed in accordance with provisions of the Contract) Place an "X" beside selected proposal method and strike out either (add) or (deduct) whichever does not apply. If necessary, attach detailed estimates and breakdown for above in accordance with change order instruction. A claim for work performed under protest shall be submitted per (c) above. An extension of contract time of calendar days to Ameresco: (name and title) CUSTOMER APPROVAL: Customer By: Title: (signature) Date: Contract Award Previous Deductions Previous Deductions Net Total This Change Total is requested. Confidential & Proprietary Information of Ameresco, Inc. Page 45 !D (0 ) ATTACHMENT G METHODOLOGY OF CALCULATING SAVINGS The methodology used for projecting savings resulting from the implementation of the project is summarized in the following equation: Total Annual Savings = Annual Energy Savings + Annual Maintenance & Repair Savings + Long Term Operational Savings Where: Total Annual Savings = The total annual savings associated with implementation of the project. Annual Energy Savings = The total annual savings associated with reduction in energy and utility consumption as a result of implementation of the project. Annual Maintenance & The total annual savings associated with reduction in operations, maintenance Repair Savings = and repair related expenses, including the reduction in deferred maintenance liability, as a result of implementation of the project. Long Term Operational The total annual savings resulting from capital replacement expenditures that are offset by the City as a result of implementation Savings = of the project. Measurement and Verification (M &V) involves two components: (1) verifying the ability of the project to generate all the projected savings; and (2) measuring actual performance of the project against the established baseline(s). These baselines are developed from a rigorously derived end - use analysis and historical energy consumption data. There are a variety of ways to accomplish the two primary M &V tasks. Techniques range from stipulating all factors affecting Facility Improvement Measure (FIM) performance to installing extensive, highly accurate metering systems. When deciding the appropriate level of sophistication for a particular plan, factors such as complexity of the measure, expected magnitude of savings from the measure, and the customer's aversion to risk all weigh upon the decision. In an effort to aid agencies in gaining an understanding of measurement and verification, an international guideline was established. Ameresco bases all of its site - specific measurement and verification plans on the International Performance Measurement and Verification Protocol (IPMVP). The general approach to determining energy savings in these plans involves comparing the energy use associated with a facility, or certain energy consuming systems within a facility, before installation of the TIM (baseline) and after installation of the FIM (post - installation). In general: Energy Savings = Baseline Energy Use) —Post Installation Energy Use Confidential & Proprietary Information of Ameresco, Inc. Page 46 1 b (0) Energy Cost Savings The Annual Energy Savings are calculated as set forth herein. The following table is a summary table. Note that the total calculated energy savings set forth in this Attachment G is projected to be greater than the annual energy savings included in the total Annual Guaranteed Savings Amount. Energy Savings Summary: Confidential & Proprietary Information of Ameresco, Inc. Page 47 10 (a-) Electric Savings Electrical Deman d Savings ECM 209611fim kWh kW CW -1 Interior Lighting Improvements 255,777 $ 19,558 1,004 $ 4,840 WWTP -3 VFD on the Rotors 100,135 $ 7,436 Confidential & Proprietary Information of Ameresco, Inc. Page 47 10 (a-) Calculation of Savings From Non - Lighting FM (Non- Lighting Savings) VFD on the Rotors (WWTP -3) Waste Water Treatment Plant Rotors VFD Addition Energy Calculations - Variable Frequency Drives Optimization 513,112 Year Hours Old Pump Total Total % Flow % Flow Hp kW Exist BASELINE Pump Energy KWH Proposed Pump Run KWH Savings Pump Energy KWH See Table Above 1760 120.0 58.2 1001% 100% 103090.9 103090.9 0 7000 120.0 58.0 1 00W 90% 410020.8 309885.8 100,135 513,112 1 412,977 100,135 $38,102 1 $30,666 $7,436 Assumptions 1 Measured KW is the Pump Motor energy. 2 Heating Breakeven /Lockout Temperature = 50 deg F VARIABLES See Table Above ...PRESENT HRSNVK OF SYSTEM OPERATION (HVACHRS) See Table Above ... HRSNVK OF ACTUAL BUILDING OCCUPANCY (HRSOCC) 52 ... WKS/YR OF AIR SYSTEM OPERATION (WPY) See Table Above ... Measured KW / Data Logger KW (FANKW) $0.0743 ...ELECTRICITY UNIT ($) COST /KWHR (ELECCOST) 40% ...Minimum Flow /Speed CALCULATIONS PUMP CURVE EQUATION = 0.9101 x %Flow A 3 + 0.0997 PUMP ENERGY COST ($NR.) = PUMP ENERGY* ELECCOST Confidential & Proprietary Information of Ameresco, Inc. Page 48 l0 (a ) Calculation of Savings from Lighting FIMs (Lighting Savings) LightingSavings = Baseline — Postlnstallation Baseline = I (kW,,., x Hrs. x Yom) fcV. Postlnstallation = Z (kWJetro x Hrs,,. x YWh) future Where: • MB�e = Base fixture kW, as per lighting audit calculation • kWre„n = Retrofit fixture kW, as per lighting audit calculation • HrsBase = Base fixture operating hours, as per lighting audit calculation • Hrs.„ = Retrofit fixture- operating hours (usually these will equal base hours), as per lighting audit calculation • $/kWh = Unit cost of electrical energy See attached Exhibit 1 to this Attachment G, (Lighting Survey and Audit). Operational Savings Average usage based on a two year average of product or maintenance usage. 2008 2009 Average Lighting 1 $ 3,142 $ 2,259 $ 2,700 VFD for Rotors $ $ - $ - Confidential & Proprietary Information of Ameresco, Inc. Page 49 10 (a) ATTACHMENT H DAVIS -BACON ACT REQUIREMENTS The provisions of the Davis -Bacon Act (the "Act "), which is codified at Subchapter IV of Chapter 31 of Title 40 of the United States Code, and the regulations and guidance promulgated thereunder (together with the Act, the "DBA ") apply to the Project, and the Customer and Ameresco certify and agree that with respect to the Project they will comply with the requirements of the DBA, as applicable. Ameresco understands its responsibility to flow down the required DBA contract language and wage determinations to subcontractors under this Agreement. FLOW DOWNS The following form contract language is incorporated in the Agreement as required and provided under 29 CFR, Part 5(A)(5.5): (1) Minimum wages. (i) All laborers and mechanics employed or working upon the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (a)(1)(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in Sec. 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under paragraph (a)(1)(ii) of this section) and the Davis -Bacon poster (WH -1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the Confidential & Proprietary Information of Ameresco, Inc. Page 50 10 (0-) workers. (ii) (A) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met: (1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and (2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (B) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30- day period that additional time is necessary. (C) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30 -day period that additional time is necessary. (D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (a)(1)(ii) (B) or (C) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification. (iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay Confidential & Proprietary Information of Ameresco, Inc. Page 51 10 (0) another bona fide fringe benefit or an hourly cash equivalent thereof. (iv) If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. (2) Withholdine. City of Hutchinson shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the contractor under this contract or any other Federal contract with the same prime contractor, or any other federally- assisted contract subject to Davis -Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), all or part of the wages required by the contract, the (Agency) may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. (3) Payrolls and Basic Records. (i) Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the project). Such records shalt contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section I(b)(2)(B) of the Davis -Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section I(b)(2)(B) of the Davis -Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification Confidential & Proprietary Information of Ameresco, Inc. Page 52 of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (ii) (A) The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the applicant, sponsor, or owner, as the case may be, for transmission to the City of Hutchinson. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee's social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH -347 is available for this purpose from the Wage and Hour Division Web site at http : / /www.dol.gov /esa/whd/fonns/ wh347instr.htm or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to the (write in name of appropriate federal agency) if the agency is a party to the contract, but if the agency is not such a party, the contractor will submit them to the applicant, sponsor, or owner, as the case may be, for transmission to the (write in name of agency), the contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the sponsoring government agency (or the applicant, sponsor, or owner). (B) Each payroll submitted shall be accompanied by a "Statement of Compliance',' signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following: (1) That the payroll for the payroll period contains the information required to be provided under Sec. 5.5 (a)(3)(ii) of Regulations, 29 CFR part 5, the appropriate information is being maintained under Sec. 5.5 (a)(3)(i) of Regulations, 29 CFR part 5, and that such information is correct and complete; (2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR part 3; (3) That each laborer or mechanic has been paid not less than the Confidential & Proprietary Information of Ameresco, Inc. Page a applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH -347 shall satisfy the requirement for submission of the "Statement of Compliance" required by paragraph (a)(3)(ii)(B) of this section. (D) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code. (iii) The contractor or subcontractor shall make the records required under paragraph (a)(3)(i) of this section available for inspection, copying, or transcription by authorized representatives of Farwell Area School or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the Federal agency may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. (4) Apprentices and Trainees. (i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less Confidential & Proprietary Information of Ameresco, Inc. Page 54 10(0-) than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (iii) Equal Employment Opportunity. The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30. (5) Compliance with Copeland Act Requirements. The contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract. Confidential & Proprietary Information of Ameresco, Inc. Page 55 0 (1' (6) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR 5.5(a)(1) through (10) and such other clauses as Farwell Area School may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5. (7) Contract Termination: Debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12. (8) Compliance with Davis -Bacon and Related Act Requirements. All rulings and interpretations of the Davis -Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract. (9) Disputes Concerning Labor Standards. Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives. (10) Certification of Eli ibg ility. (i) By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1). (ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1). (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. (1) Overtime Requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one -half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. (2) Violation Liability for Unpaid Wages Liquidated Damages. In the event of any violation of the clause set forth in paragraph (b)(1) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In Confidential & Proprietary Information of Ameresco, Inc. Page 56 10 (a) addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (b)(1) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (b)(1) of this section. (3) Withholding for or Unpaid Wages and Liquidated Damages. City of Hutchinson shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally- assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (b)(2) of this section. (4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (b)(1) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (b)(1) through (4) of this section. (b) In addition to the clauses contained in paragraph (b), in any contract subject only to the Contract Work Hours and Safety Standards Act and not to any of the other statutes cited in Sec. 5. 1, the Agency Head shall cause or require the contracting officer to insert a clause requiring that the contractor or subcontractor shall maintain payrolls and basic payroll records during the course of the work and shall preserve them for a period of three years from the completion of the contract for all laborers and mechanics, including guards and watchmen, working on the contract. Such records shall contain the name and address of each such employee, social security number, correct classifications, hourly rates of wages paid, daily and weekly number of hours worked, deductions made, and actual wages paid. Further, the Agency Head shall cause or require the contracting officer to insert in any such contract a clause providing that the records to be maintained under this paragraph shall be made available by the contractor or subcontractor for inspection, copying, or transcription by authorized representatives of the (write the name of agency) and the Department of Labor, and the contractor or Confidential & Proprietary Information of Ameresco, Inc. Page 57 1 0 (o) subcontractor will permit such representatives to interview employees during working hours on the job. Confidential & Proprietary Information of Ameresco, Inc. Page 58 10 (a) CERTIFICATION OF MINUTES RELATING TO A PROJECT ON BEHALF OF HUTCHINSON SENIOR CARE SERVICES Issuer: City of Hutchinson Governing Body: City Council Kind, date, time and place of meeting: A regular meeting held on November 23, 2010, at 5:30 o'clock P.M., in the Council Chambers at the Hutchinson City Center. Councilmembers present: Councilmembers absent: Documents attached: Minutes of said meeting including (pages): 1 through 5 RESOLUTION NO. 13 31 D RESOLUTION APPROVING A PROJECT ON BEHALF OF HUTCHINSON SENIOR CARE SERVICES; AUTHORIZING THE ISSUANCE OF HEALTH CARE REVENUE ANTICIPATION NOTES ( HUTCHINSON SENIOR CARE SERVICES PROJECT), SERIES 2010; AND APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY OF DOCUMENTS RELATING THERETO I, the undersigned, being the duly qualified and acting recording officer of the public corporation issuing the obligations referred to in the title of this certificate, certify that the documents attached hereto, as described above, have been carefully compared with the original records of the corporation in my legal custody, from which they have been transcribed; that the documents are a correct and complete transcript of the minutes of a meeting of the governing body of the corporation, and correct and complete copies of all resolutions and other actions taken and of all documents approved by the governing body at the meeting, insofar as they relate to the obligations and that the meeting was duly held by the governing body at the time and place and was attended throughout by the members indicated above, pursuant to call and notice given as required by law. WITNESS my hand officially as such recording officer this day of November, 2010. Gary D. Plotz, City Administrator 10 cc-) Member introduced the following resolution and moved its adoption, the reading of which was dispensed with by unanimous consent: RESOLUTION NO. 13 S 10 RESOLUTION APPROVING A PROJECT ON BEHALF OF HUTCHINSON SENIOR CARE SERVICES; AUTHORIZING THE ISSUANCE OF HEALTH CARE REVENUE ANTICIPATION NOTES ( HUTCHINSON SENIOR CARE SERVICES PROJECT), SERIES 2010; AND APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY OF DOCUMENTS RELATING THERETO BE IT RESOLVED by the City Council of the City of Hutchinson, Minnesota (the "City "), as follows: Section L Recitals and Findin¢s. 1.1 Pursuant to Minnesota Statutes, Sections 469.152 through 469.165 (the "Act "), the City is authorized to issue revenue bonds of the City on behalf of nonprofit entities such as Hutchinson Senior Care Services, a Minnesota nonprofit corporation (the "Corporation "). 1.2 The Corporation has advised this Council of its desire to undertake a project (the "Project "), comprising the following: (a) the acquisition, construction and equipping by the Corporation of an approximately 125,000 square foot comprised of 120 skilled nursing beds and 18 assisted living beds to be located at 1555 Sherwood Street SE in the City; and (b) costs of issuance of the Series 2010 Project Notes, as hereinafter defined, and capitalized interest, if any, on the Series 2010 Project Notes. 1.3 The Corporation has requested that the City issue its revenue bonds or notes, in one or more series, in the approximate aggregate principal amount of $13,600,000 (the "Series 2010 Project Notes ") pursuant to the Act to finance all or a portion of the cost of the Project. 1.4 The Corporation anticipates that the Project, once completed, will enhance employment in the City and the State as provided in the Application, and will enhance the Corporation's ability to provide quality health care services at reasonable cost. The Corporation has represented to the City that the issuance of the Series 2010 Project Notes is essential to the successful completion of the Project. 1.5 At a public hearing, duly noticed and held on September 28, 2010, in accordance with the Act and Section 147(f) of the Internal Revenue Code of 1986, as amended (the "Code "), on the proposal to undertake and finance the Project, all parties who appeared at the hearing were given an opportunity to express their views with respect to such proposal and interested persons were given the opportunity to submit written comments to the City Administrator before the date of the hearing. co-) 1.6 Drafts of the following documents relating to the Series 2010 Project Notes have now been presented to the City Council and shall be filed in the office of the City Administrator: (a) an Indenture of Trust (the "Indenture "), to be entered into between the City, the Corporation, Hutchinson Health Care, a Minnesota nonprofit corporation ( "HHC ") and U.S. Bank National Association, as trustee, whereby the Series 2010 Project Notes, denominated "Health Care Revenue Anticipation Notes (Hutchinson Senior Care Services Project), Series 2010," are created and their terms, conditions and forms established; (b) a Bond Purchase Agreement (the "Bond Purchase Agreement'), to be entered into between the City, the Corporation, HHC and the Underwriters named therein (the "Underwriters "), which provides for the sale by the City and the purchase by the Underwriters of the Series 2010 Project Notes; (c) a Continuing Disclosure Agreement between the Corporation and U.S. Bank National Association, as dissemination agent; and (d) an Official Statement relating to the Series 2010 Project Notes (the "Official Statement'). The Indenture and the Bond Purchase Agreement are collectively called the "Bond Documents." The Bond Documents are hereby made a part of this Resolution as fully as though set forth in full herein. 1.7 The Series 2010 Project Notes shall not constitute an indebtedness, a pecuniary liability, a moral or general obligation, a loan of the credit of the City or a charge, lien or encumbrance, legal or equitable, upon any property of the City, except the revenues specifically pledged to the payment thereof, and each Series 2010 Bond, when, as and if issued, shall recite in substance that the Series 2010 Bond, including interest thereon, is payable solely from the revenues and property specifically pledged to the payment thereof, and shall not constitute a debt or pecuniary liability of the City. Section 2. Determination to Proceed with the Proiect and Its Financin 2.1 On the basis of the information given to the City to date, it appears that it would be desirable for the City to issue the Series 2010 Project Notes under the provisions of the Act to finance the project in an aggregate principal amount not to exceed $13,600,000. 2.2 This Council hereby declares its present intent to proceed with the Project and its financing and to have the City issue its revenue bonds under the Act for these purposes. All details of the Series 2010 Project Notes and the provisions for payment thereof shall be subject to final approval of the Project by the Minnesota Department of Employment and Economic Development and may be subject to such further conditions as the City may specify. The Series 2010 Project Notes, if issued, shall not constitute an indebtedness, a pecuniary liability, a moral or a general obligation or a loan of the credit of the City or a charge, lien or encumbrance, legal or equitable, upon any property of the City, except the revenues specifically pledged to the payment thereof, and each Series 2010 Bond, when, as and if issued, shall recite in substance that 2 ►oCC) the Series 2010 Bond, including interest thereon, is payable solely from the revenues and property specifically pledged to the payment thereof, and shall not constitute a debt of the City within the meaning of any constitutional, statutory or charter limitation. 2.3 The Corporation has represented to the City that they intends to reimburse costs with respect to the Project from the proceeds of the Series 2010 Project Notes when issued. 2.4 The Mayor and the City Administrator are authorized to cooperate with the Corporation in obtaining the approval of the Commissioner of the Department of Employment and Economic Development for the issuance of the Series 2010 Project Notes, as required by the Act. The Application, with attachments, in substantially the form heretofore submitted to the Council is hereby approved, and the Mayor and the City Administrator are authorized to execute said documents on behalf of the City. Section 3. Authorization of the Bonds; Approval and Execution of Documents 3.1 The City hereby approves the issuance of the Series 2010 Project Notes under the Act and the Indenture, the sale thereof to the Underwriters in accordance with the Bond Purchase Agreement, and the loan of the proceeds of the Series 2010 Project Notes to the Corporation in accordance with the Indenture. 3.2 The forms and the execution and the delivery of the Bond Documents submitted to this Council are hereby approved, with such additions or modifications thereto and deletions therefrom as may be approved by the Mayor and the City Administrator prior to the execution and delivery thereof, the approval thereof to be conclusively evidenced by the execution and delivery of the Bond Documents by the appropriate officers of the City. The City recognizes that as of the date of adoption of this Resolution the detailed terms of the Series 2010 Project Notes are not finally resolved, and consequently when issued the Series 2010 Project Notes may be in fewer or more series than the forms of Bond Documents currently provide, and will bear interest at rates not yet determined, but the aggregate principal amount of Series 2010 Project Notes to be issued shall not exceed $13,600,000, and the initial interest rate on the Series 2010 Project Notes shall not exceed [8.00 %] per annum, and shall be set forth be in the Indenture, as finally executed. The Series 2010 Project Notes are expected to mature no later than 2 years from the date of issuance thereof. 3.3 The Mayor and the City Administrator are hereby authorized in their discretion at such time, if any, as they may deem appropriate, to execute and deliver the Bond Documents in the name and on behalf of the City. 3.4 The City hereby consents to the preparation and distribution by the Corporation and the Underwriters of the Official Statement and any Preliminary Official Statement deemed desirable by the Underwriter in connection with the offering of the Series 2010 Project Notes. The City has not made and will not make any independent investigation of the facts and statements provided in the Official Statement or the Preliminary Official Statement and makes no representations or warranties with respect to the information set forth therein; accordingly, the City assumes no responsibility with respect thereto, including without limitation as to matters I co-) relating to the accuracy, completeness or sufficiency of the Official Statement or the Preliminary Official Statement. 3.5 The Mayor, the City Administrator and the other officers of the City are hereby authorized to prepare and furnish to the Underwriters and to Bond Counsel certified copies of all proceedings and records of the City relating to the Series 2010 Project Notes and such other affidavits and certificates as may be required to show the facts relating to the Series 2010 Project Notes as such facts appear in the books and records in the officers' custody and control or as otherwise known to them. All such certified copies, affidavits and certificates, including any heretofore furnished, shall constitute representations of the City as to the truth of all statements contained therein. 3.6 In the absence of the Mayor or the City Administrator, any of the documents authorized by this Resolution to be executed and delivered may be executed and delivered by the acting or deputy Mayor or City Administrator, respectively. 3.7 The issuance by the City of the Series 2010 Project Notes in an aggregate principal amount up to $13,600,000 in the form and upon the terms set forth in the Indenture is hereby authorized. The Mayor and the City Administrator are hereby authorized in their discretion at such time, if any, as they may deem appropriate, to execute the Series 2010 Project Notes by manual or facsimile signatures as prescribed in the Indenture, to deliver the Series 2010 Project Notes to the Trustee or an authenticating agent for authentication and delivery thereof to the Underwriters, and to deliver to the Trustee a certified copy of this Resolution and all other documents required by the Indenture or the Bond Purchase Agreement. Section 4. Effective Date. 4.1 This Resolution shall be effective immediately upon its adoption. Adopted by the City Council of the City of Hutchinson, Minnesota, this 23rd day of November, 2010. Attest: City Administrator Mayor a D CC,) The motion for the adoption of the foregoing resolution was duly seconded by Member and upon vote being taken thereon, the following Members voted in favor thereof: and the following voted against the same: whereupon said resolution was declared duly passed and adopted. 10 CCU Planning, Zoning, and Building Dept. Monthly Report September, 2010 Building Department Permit Activities Planning, Zoning, and Building Department — Other Activities Facilities Management/Maintenance Activities: Evergreen Meals served in September Week Of Hutchinson Towers Lake Glencoe Brownton Stewart 9/2009 912010 2009 Year to Date 2010 Year to Date Total Number Inspections 144 167 1244 1168 Building Permits Issued by Type Number of Permits & Valuation Number of Permits & Valuation Number of Permits & Valuation Year to Date Number Permits & Valuation Commercial new 1 - $1,000,000 0 3 - $1,035,000 2-$499,400 Commercial Additions/ Remodels 6-$115,000 16 - $256,300 42 - $7,943,117 65 - $2,522,300 Industrial (new) 0 1 -$193,000 0 1 -$193,000 Industrial Additions /Remodels 0 0 1 -$418,800 2-$13,000 Fire Sprinkling 0 0 8-$138,725 4 - $68,550 Total New Residential Units (Single Family, twins, townhomes) 0 1 -$175,000 3-$588,000 6 - $1,034,000 Residential misc. (additions, repairs, remodels, etc ) 10 — $35,800 15-$46,260 56 - $480,860 119 - $1,230,982 Set fee permits reside, reroof, window replacement, misc. * 85 56 498 385 Subtotal Building Permits: $1,150,800 $670,560 $10,604,502 $5,561,232 Mechanical 7-$90,000 23 - $129,905 143 - $859,740 176 - $644,362 Plumbin * 6 9-$69,300 58 - $14,253 64-$69,300 Signs* 3 4 40 39-$108 Total Permits issued and valuation 118 - $1,240,800 125 - $869,765 859 — $11,478,495 863 - $6,275,002 ` Set fees not included in valuation Planning, Zoning, and Building Department — Other Activities Facilities Management/Maintenance Activities: Evergreen Meals served in September Week Of Hutchinson Towers Lake Glencoe Brownton Stewart 916 -9/10 260 167 99 126 58 67 9/13 -9/17 247 184 81 142 62 66 9/20 -9124 247 179 66 127 64 69 9/27 -9/30 Unavailable Unavailable Unavailable Unavailable Unavailable Unavailable Total 754 530 246 395 184 202 Total Meals Served in September - 2,311 Other Building Inspection Activities: The Building Official attended Fire Sprinkler Training 9/15 -16 and 9/22 -23 while the Building Inspector attended the SW Chapter of the ICC Meeting on September 15`h. The Building Department staff also worked with the Police Department regarding Nuisance Properties. Several pre - inspections were set up with Housing and g Redevelopment Authority for future home rehabilitations. Plannina and Zonina Monthly Activities MonthNear: September. 2010 Activity Number Additional Info. Zoning Review of Building Permits 28 Zoning Review of Sign permits 4 Planning /Zoning Applications Provided 0 Predevelopment Meetings/ 2 Planning Staff meeting, Meeting Pre - application Assistance with Crown Properties — Kids Inc. Planning Commission Applications 5 Conditional use permit Processed McDonald's 2nd order point Amendment to Sign ordinance Conditional use permit, Final plat, Site plan review Crown Addition day care development Joint Planning Applications 1 Conditional use permit to allow Reviewed and Processed shed in front yard Zoning Enforcement 1 Goebel's rummage sale on 5th Ave. off - premise and banner signs. Misc. Meetings Attended Comprehensive Plan update and discussion with staff Safety training, meeting with Jacques regarding Adams St. property, project fees and mapping meeting, shoreland discussion meeting with Mayor Cook and John Lofdahl, 2 meetings with Lutheran Social Services regarding Senior Center dining, site visit and meeting to Goebel rummage sale — 5 I ave, Meeting with Crown Properties — Kids Inc project, Special Activities: Dan Jochum attended the MN State Planning Conference in Mankato from September 22 to 24. He also attended a workshop on September 29 on variances, regarding the new information on the recent MN Supreme Court ruling on variances. Planning, Zoning, and Building Dept. Monthly Report October, 2010 Building Department Permit Activities Planning, Zoning, and Building Department— Other Activities Facilities Management/Maintenance Activities: Evergreen Meals served in October Week Of Hutchinson Towers Lake Glencoe Brownton Stewart 10/2009 1046,10 2009 Year to Date 2010 Year to Date Total Number Inspections 144 183 1380 1366 Building Permits Issued by Type Number of Permits & Valuation Number of Permits & Valuation Number of Permits & Valuation Year to Date Number Permits & Commercial (new) 1 -$65,000 1 -$800,000 4 - $1,100,000 3 - $1,299,400 Commercial Additions/ Remodels 5-$213,750 6 - $125,800 54 - $8,156,867 71 - $2,648,100 Industrial (new) 2 - $2,645,000 1 -$3,000 2 - $2,645,000 2-$196,000 Industrial Additions /Remodels 0 1-$489,000 1 -$418,800 3 - $502,000 Fire Sprinkling 1 -$18,000 1 -$13,215 9-$156,725 5 - $81,765 Total New Residential Units (Single Family, twins, townhomes) 0 0 3-$588,000 6 - $1,034,000 Residential misc. (additions, repairs, remodels, etc) 6-$46,000 17 - $79,281 62 - $526,860 136 - $1,310,263 Set fee permits (reside, reroof, window replacement, misc.)* 67 42 565 427 Subtotal Building Permits: $2,987,750 $1,510,296 $13,592,252 $7,071,528 Mechanical 18 - $291,500 22-$27,000 161 - $1,151,240 198 — $671,362 Plumbing* 10 5 68-$14,253 69-$69,300 Signs* 2 3 42 42-$108 Total Permits issued and valuation 112 - $3,279,250 99 - $1,537,296 971 - $14,757,745 962 - $7,812,298 * Set fees not included in valuation Planning, Zoning, and Building Department— Other Activities Facilities Management/Maintenance Activities: Evergreen Meals served in October Week Of Hutchinson Towers Lake Glencoe Brownton Stewart 10/1/2010 47 31 14 22 6 13 10/4 -10/8 277 156 81 116 61 66 10/11 -10/15 270 157 98 121 51 56 10/18 -10/22 272 157 80 142 56 68 10/25 -10/30 241 167 84 119 49 62 Total 1,107 668 357 520 223 265 Total Meals Served in October - 3,140 Other Building Inspection Activities: The Building Official attended a CCLD class in Mankato on 10/27/10. Several inspections were set up with Housing and Redevelopment Authority for future home rehabilitations. Planning and Zoning Monthly Activities Month/Year: October, 2010 Activity Number Additional Info. Zoning Review of Building Permits 16 Zoning Review of Sign permits 3 Planning /Zoning Applications Provided 1 Conditional Use Permit for High School Greenhouse — withdrawn by applicant Predevelopment Meetings/ Pre-application Assistance Planning Commission Applications Comprehensive Plan update and Processed discussion with Planning Commission Joint Planning Applications 1 Conditional use permit to allow Processed shed in front yard Zoning Enforcement 2 Letter regarding shed without a permit, verbal notice to remove off-premise sign Misc. Meetings Attended 8 UHL Companies — City Center HVAC, Railroad Authority Property Meeting, Randy Anderson — Crown Properties, Potential new business — HWY 15 South, Legislative Auditors Office — Conference Call regarding EAW's, Meeting with contractor 1209 Lewis Ave, Meeting with contractor on impervious surface /shoreland /rain gardens, meeting with realtor — non- conforming property MINUTES HUTCHINSON PLANNING COMMISSION Tuesday, October 19, 2010 Hutchinson City Council Chambers CALL TO ORDER 5:30 P.M. The meeting was called to order by Chairman John Lofdahl at 5:30 p.m. with the following members present: Chris Kovacic, Chad Czmowski, Dean Kirchoff, Dave Johnston and Chairman Lofdahl. Absent: Christie Rock and Jim Fahey Also present: Dan Jochum, Planning Director, Kent Exner, City Engineer, Marc Sebora, City Attorney and Bonnie Baumetz, Planning Coordinator 2. PLEDGE OF ALLEGIANCE 3. CONSENT AGENDA a) Consideration of Minutes dated September 21, 2010 Mr. Kovacic moved to approve the consent agenda as submitted. Seconded by Mr. Johnston. The consent agenda was approved unanimously 4. PUBLIC HEARINGS None 5. NEW BUSINESS a) REVIEW AND DISCUSSION OF COMPREHENSIVE PLAN WORK PLAN Mr. Jochum began the presentation by explaining why cities must plan. He explained the Comprehensive Plan is a document to rely on and a legal basis for land use controls. The plan is a guide for the council, property owners and developers. The City must work with all jurisdictions in the process of updating the plan. There is a need for re- evaluating the 2002 plan and include relevant facts. Citizen input is important. He stated ideally we should complete a yearly review of the plan to make updating much easier. He commented on the implementation and updating to keep the plan current. Citizen buy -in is important and citizens must be kept informed and given a choice. The plan is a decision making tool for the City. Mr. Jochum commented on the difference between planning and zoning. Mr. Jochum presented the work plan for updating the Comprehensive Plan. He commented on the project kick -off meeting and the process including the review of the current 2002 plan, background and past planning efforts, mapping and meetings including open houses. He commented on the topics to be included in the Comprehensive Plan and the need to include all City departments and outside sources for some areas of the plan such as transportation, housing, park and recreation, environment and economic development. 6. OLD BUSINESS None 11W Minutes Planning Commission — October 19, 2010 Page 2 COMMUNICATION FROM STAFF a) Mr. Jochum explained the sign ordinance was tabled by the City Council. The Council would like to include language to allow this type of sign in residential areas. He will draft language to allow these signs in residential areas without graphics only using letters and numbers. 8. ADJOURNMENT There being no further business the meeting adjourned at 6:15 p.m. !! (b) CITY OF HUTCHINSON FINANCIAL REPORTS (OCTOBER 2010 AS OF 11/1812010) EXPENDITURES BY DEPTARTMENT: MAYOR & CITY COUNCIL ADMINISTRATION ELECTIONS FINANCE DEPARTMENT MOTOR VEHICLE ASSESSING LEGAL PLANNING INFORMATION SERVICES POLICE DEPARTMENT EMERGENCY MANAGEMENT SAFETY COMMITTEE FIRE DEPARTMENT PROTECTIVE SERVICES ENGINEERING STREETS & ALLEYS CITY HALL BUILDING PARK/REC ADMINISTRATION RECREATION SENIOR CITIZEN CENTER CIVIC ARENA PARK DEPARTMENT RECREATION BLDG & POLL EVENT CENTER EVERGREEN BUILDING LIBRARY CEMETERY AIRPORT UNALLOCATED GENERAL EXP. TOTAL EXPENDITURES 2009 2010 2010 2010 2010 OCTOBER OCTOBER MONTH OF OCTOBER ADOPTED BALANCE PERCENT YTD OCTOBER YTD BUDGET REMAINING USED 36,851.76 2009 2010 2010 2010 2010 OCTOBER 31,141.21 OCTOBER MONTH OF OCTOBER ADOPTED BALANCE PERCENT DESCRIPTION: YTD OCTOBER YTD BUDGET REMAINING USED TAXES 1,974,714.61 - 2,073,927.61 4,404,300.00 2,330,372.39 47% LICENSES 47,865.75 20.47 54,581.04 58,281.00 3,699.96 94% PERMITS 195,550.04 53,362.36 175,081.97 297,596.00 122,514.03 59% INTERGOVERNMENTALREVENUE 1,429,849.84 230,715.13 1,289,304.65 2,164,243.00 874,938.35 60% CHARGES FOR SERVICES 1,111,792.22 75,615.59 1,160,572.27 1,767,647.00 607,074.73 66% FINES & FORFEITS 35,046.46 4,945.77 31,162.61 45,000.00 13,837.39 69% INTEREST ON INVESTMENTS (11,439.76) - 13,135.11 70,000.00 56,864.89 19% REIMBURSEMENTS 382,690.90 17,816.27 315,975.50 419,850.00 103,874.50 75% TRANSFERS 1,185,322.18 379,738.15 1,132,949.13 1,901,083.00 768,133.87 60% SURCHARGES 1,714.91 (1,252.83) 1,242.62 1,000.00 (242.62) 124% FUND BALANCE 1,088,655.63 - - 10,000.00 10,000.00 0% TOTAL REVENUES $ 6,353,107.15 $ 760,960.91 $ 6,247,932.51 $ 11,139,000.00 $ 4,891,067.49 56% EXPENDITURES BY DEPTARTMENT: MAYOR & CITY COUNCIL ADMINISTRATION ELECTIONS FINANCE DEPARTMENT MOTOR VEHICLE ASSESSING LEGAL PLANNING INFORMATION SERVICES POLICE DEPARTMENT EMERGENCY MANAGEMENT SAFETY COMMITTEE FIRE DEPARTMENT PROTECTIVE SERVICES ENGINEERING STREETS & ALLEYS CITY HALL BUILDING PARK/REC ADMINISTRATION RECREATION SENIOR CITIZEN CENTER CIVIC ARENA PARK DEPARTMENT RECREATION BLDG & POLL EVENT CENTER EVERGREEN BUILDING LIBRARY CEMETERY AIRPORT UNALLOCATED GENERAL EXP. TOTAL EXPENDITURES 2009 2010 2010 2010 2010 OCTOBER OCTOBER MONTH OF OCTOBER ADOPTED BALANCE PERCENT YTD OCTOBER YTD BUDGET REMAINING USED 36,851.76 2,784.51 32,550.95 56,310.00 23,759.05 58% 312,773.73 31,141.21 325,622.61 408,020.00 82,397.39 80% 554.10 1,443.65 9,904.35 14,000.00 4,095.65 71% 473,146.24 33,665.34 400,249.50 512,296.00 112,046.50 78% 218,935.08 17,844.68 222,482.57 234,028.00 11,545.43 95% 57,940.00 - 60,911.00 61,911.00 1,000.00 98% 161,265.97 18,811.89 172,446.62 230,363.00 57,916.38 75% 107,161.13 14,323.45 99,230.96 152,746.00 53,515.04 65% 231,860.45 24,262.91 254,284.17 283,083.00 28,798.63 90% 2,384,533.10 233,178.48 2,385,944.17 3,060,716.00 674,771.83 78% 5,828.78 108.40 11,110.44 18,000.00 6,889.56 62% 11,597.50 2,918.75 12,071.99 13,450.00 1,378.01 90% 340,490.98 33,773.86 356,810.07 437,194.00 80,383.93 82% 196,957.98 18,207.19 182,178.69 268,773.00 86,594.31 68% 375,919.12 32,466.10 358,428.84 462,781.00 104,352.16 77% 1,147,029.52 61,887.15 1,088,655.63 1,416,898.00 328,242.37 77% 96,881.19 10,128.42 101,933.03 143,532.00 41,598.97 71% 167,409.74 14,568.13 172,843.78 211,466.00 38,622.22 82% 217,179.99 7,661.08 211,567.01 219,566.00 7,998.99 96% 53,360.91 5,988.62 64,585.23 81,783.00 17,197.77 79% 254,963.37 30,875.59 251,515.45 326,489.00 74,973.55 77% 673,282.78 41,110.86 580,442.15 728,460.00 148,017.85 80% 129,881.30 6,805.22 115,564.24 141,716.00 26,151.76 82% 209,265.13 15,650.72 173,396.10 231,903.00 58,506.90 75% 8,979.55 453.73 13,533.85 14,050.00 516.15 96% 138,034.43 39,101.59 176,597.39 189,454.00 12,856.61 93% 137,052.65 11,107.79 103,866.24 134,541.00 30,674.76 77% 63,961.23 9,169.63 121,285.68 109,528.00 (11,757.68) 111% 713,036.33 163,428.14 672,120.89 975,943.00 303,822.11 69% $ 8,926,134.04 $ 882,867.09 $ 8,732,133.60 $ 11,139,000.00 $ 2,406,866.40 78% $ 8,926,134.04 $ 882,867.09 $ 8,732,133.60 $ 11,139,000.00 $ 2,406,866.40 78% / (C-) 2009 2010 2010 2010 2010 OCTOBER EXPENDITURES BY OCTOBER MONTH OF OCTOBER ADOPTED BALANCE PERCENT FUNCTION OF GOVERNMENT: YTD OCTOBER YTD BUDGET REMAINING USED GENERAL GOVERNMENT 1,697,369.65 158,845.77 1,679,615.76 2,096,289.00 416,673.24 80% PUBLIC SAFETY 2,939,408.34 320,652.78 2,948,115.36 3,798,133.00 850,017.64 78% STREETS & ALLEYS 1,522,948.64 72,015.57 1,447,084.47 1,879,679.00 432,594.53 77% PARKS & RECREATION 1,852,357.20 147,647.41 1,760,045.20 2,144,887.00 384,841.80 82% MISCELLANEOUS 914,050.21 183,705.56 897,272.81 _ _ 1,220,012.00 322,739.19 74% $ 8,926,134.04 $ 882,867.09 $ 8,732,133.60 $ 11,139,000.00 $ 2,406,866.40 78% / (C-) CITY OF HUTCHINSON FINANCIAL REPORTS (OCTOBER 2010 AS OF 11/18/2010) INVESTMENT REPORT October 31, 2010 Date Date Interest of of Institution Description Rate Purchase Maturity Amount Smith Barney CD's 2.75 % -3.15% 5/20/2009 5/29/2012 350,000.00 Smith Barney FHLB 2.000% 4/22/2010 4/15/2015 500,000.00 Smith Barney CD's 3.3 % -3.4% 6/10/2009 6/10/2013 300,000.00 Smith Barney CD's 2.450% 7/22/2009 7/23/2012 500,000.00 Smith Barney CD's 1.400% 1/27/2010 1/27/2012 248,000.00 Smith Barney CD's 1.400% 1/22/2010 1/23/2012 496,000.00 Edward Jones FHLB 1.500% 3/26/2008 3/26/2012 500,000.00 Wells Fargo FHLM - Step 2.500% 3/24/2010 11/19/2018 1,000,000.00 Wells Fargo FHLM - Step 2.000% 7/27/2010 7/27/2018 500,000.00 Wells Fargo FNMA - Step 2.000% 6/29/2010 7/12/2019 1,000,000.00 Wells Fargo FNMA - Step 2.500% 9/24/2010 9/29/2020 1,000,000.00 Wells Fargo FHLB - Step 2.000% 5/17/2010 5/17/2016 500,000.00 UBS Financial FHLB - Step 2.000% 3/23/2010 3/23/2016 500,000.00 $ 7,394,000.00 I1(0 ) RESOLUTION NO. 13811 A RESOLUTION CALLING FOR A PUBLIC HEARING ON THE APPLICATION FOR A GRANT UNDER THE COMMUNITY DEVELOPMENT BLOCK GRANT (CBDG) ECONOMIC DEVELOPMENT SET -ASIDE PROGRAM WHEREAS, in order to obtain a Community Development Block Grant (CBDG) Microenterprise Grant from the Minnesota Department of Employment and Economic Development it is necessary to obtain community input on the following: A. Proposed project, including the scope, project schedule, overall project cost, proposed financing, how the project will benefit low and moderate income persons; and, B. Housing and community development needs, including those of low and moderate income persons; and, C. Plans to minimize displacement of persons and businesses as a result of funded activities and pass the Residential Anti - displacement, Relocation Assistance and Displacement Minimization Plan. THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF HUTCHINSON, MINNESOTA, That a public hearing on the submittal of an application to the Minnesota Department of Employment and Economic Development for a grant under the Community Development Block Grant (CDBG) Economic Development Set -Aside program is hereby called and shall be held at 8:00 PM on December 14, 2010, at the City Council Chambers located at Hutchinson City Center, 111 Hassan Street SE, Hutchinson, Minnesota; BE IT FURTHER RESOLVED THAT, Notice of said public hearing shall be published in a newspaper of general circulation in the City of Hutchinson not less than ten (10) days prior to the date set for the public hearing. BE IT FURTHER RESOLVED THAT, Information and records regarding the proposed project be kept on file in the office of the Hutchinson Economic Development Authority and that this information be made available for public inspection during normal city business hours. Adopted by the City Council this 23`d day of November, 2010, ATTEST: Gary D. Plotz Steven W. Cook City Administrator Mayor