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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
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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)
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Hutchinson
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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
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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-
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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.
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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;
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(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
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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.
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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
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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
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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.
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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.
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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.
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(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
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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.
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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.
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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(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.
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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:
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(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
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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
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Page 20
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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
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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.
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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.
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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
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♦ 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.
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♦ 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.
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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.
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♦ 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.
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♦ 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
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♦ 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.
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♦ 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
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♦ 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
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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.
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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).
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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
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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.
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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.
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to achieve the Annual Guaranteed Savings Amount as set forth in the Agreement.
Date completed
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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.
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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.
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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:
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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
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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
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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.
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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
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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:
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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
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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
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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
$
$ -
$ -
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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
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Page 50
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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
