HomeMy WebLinkAboutCC - November 6, 20191685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755-5100
FAX (763) 755-8923 • WWW.ANDOVERMN.GOV
Regular City Council Meeting — Wednesday, November 6, 2019
Call to Order — 7:00 p.m.
Pledge of Allegiance
Resident Forum
Agenda Approval
1. Approval of Minutes (10/15/19 Regular; 10/22/19 Workshop)
Consent Items
2. Approve Payment of Claims — Finance
3. Accept Resignation of Taylor Moshier, Streets Maintenance Worker - Administration
4. Approve Appointment Building Inspector —Administration
5. Approve Dental Renewal and Employer Contribution—Administration
6. Approve Medical Renewal and Employer Contribution — Administration
7. Approve LMCIT Liability Coverage —Administration
8. Reimbursement Resolution/2020 Equipment Purchases — Finance
9. Approve License Agreement with Anoka County/Monument Sign - Planning
Discussion Items
10. Public Hearing on the Issuance and Sale of a Revenue Note for the YMCA of the Greater Twin
Cities/Conduit Financing for Andover YMCA Project —Administration
11. Public Hearing/Adopt Assessment Roll/19-2/2019 Street Reconstruction — Engineering
12. Public Hearing — Vacation of Drainage and Utility Easement -15281 Swallow St NW — Jesse
Moore — Planning
13. Public Hearing — 2019 Delinquent Service Charges —Administration
Staff Items
14. Administrator's Report —Administration
Mayor/Council Input
Adjournment
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1685 CROSSTOWN BOULEVARD N.W.. ANDOVER, MINNESOTA 55304 • (763) 755-5100
FAX (763) 755-8923 • WWW.ANDOVERMN.GOV
TO: Mayor and City Council �\��� '\�✓
CC: Jim Dickinson, City Administrator
FROM:
Michelle Harmer, Deputy City Cler
SUBJECT:
Approval of Minutes
DATE:
November 6, 2019
INTRODUCTION
The following minutes were provided by TimeSaver, reviewed by Administration and
submitted for City Council approval:
October 15, 2019 Regular
October 22, 2019 Workshop
The minutes are attached for your review.
ACTION REQUIRED
The City Council is requested to approve the above minutes.
Respectfully submitted,
Michelle Harmer
Deputy City Clerk
Attach: Minutes
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REGULAR ANDOVER CITY COUNCIL MEETING — OCTOBER 15, 2019
MINUTES
The Regular Bi -Monthly Meeting of the Andover City Council was called to order by Mayor Julie
Trude, October 15, 2019, 7:06 p.m., at the Andover City Hall, 1685 Crosstown Boulevard NW,
Andover, Minnesota.
Councilmembers present: Mike Knight, Sheri Bukkila, Valerie Holthus and Jamie Barthel
Councilmember absent: None
Also present: City Administrator, Jim Dickinson
Community Development Director, Joe Janish
Director of Public Works/City Engineer, David Berkowitz
City Attorney, Scott Baumgartner
Others
PLEDGE OFALLEGIANCE
RESIDENT FORUM
No one wished to address the Council.
AGENDA APPROVAL
Mayor Trude noted the changes to the agenda as follows:
Addition of Item #8b Approve Temporary Intoxicating Liquor License
Move Item # 10 to after Items # 11 and # 12
Remove Items #13 and #15
Motion by Bukkila, Seconded by Barthel, to approve the Agenda as amended above. Motion
carried unanimously.
APPROVAL OFMINUTES
September 24, 2019, Workshop Minutes: Correct as amended.
Mayor Trude requested a correction on page 4, line 9 change the phrase "in case by case" to "on a
case by case basis."
Mayor Trude requested a correction on page 7, line 28 change "various housing types" to "a variety
of housing types."
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Regular Andover City Council Meeting
Minutes — October 15, 2019
Page 2
Motion by Holthus, Seconded by Knight, to approve the September 24, 2019, Workshop minutes
as indicated above. Motion carried unanimously.
October 1, 2019, Workshop and Regular Meeting Minutes: Correct as written.
Motion by Holthus, Seconded by Knight, to approve the October 1, 2019 Workshop and Regular
meeting and workshop minutes as presented. Motion carried unanimously.
CONSENT ITEMS
Item 2 Approve Payment of Claims
Item 3 Approve Appointment — City Planner
Item 4 Accept Retirement of Jerry Streich - Fire Chief
Item 5 Approve 2020 Polling Locations (See Resolution R080-19)
Item 6 Approve Final Plat — Estates of Cedar Ridge — Bergeron Developers, LLC — Joshua
Bergeron (See Resolution R081-19)
Item 7 Award Bid & Quotes/17-26/Andover YMCA Community Center Expansion
Item 8 Approve 2019 Amended and Restated Joint Powers Agreement for a Coalition of
Metropolitan Communities/North Metro Mayors Association
Item 8b Approve Temporary Intoxication Liquor License for a Veterans Organization at Bunker
Hills Park Activity Center
Motion by Bukkila, Seconded by Barthel, to approve of the Consent Agenda as read. Motion
carried unanimously.
Commander Lenzmeier provided the September Sheriffs Office report including 1485 calls for
service, 11 felony arrests, 7 gross misdemeanor arrests, and 23 misdemeanor arrests. In addition,
the Sheriff Office reported 7 DWI's, of which, 4 were drug related. Mayor Trude asked if it took
more time to do the drug related tests. Commander Lenzmeier stated specially trained officers are
called in and need to acquire a warrant, so yes, it does take more time. Mayor Trude expressed
her thanks. Commander Lenzmeier detailed several significant events and provided an update on
the attempted robbery in August, informing the Council that the suspect has been identified and
arrested. Commander Lenzmeier stated that officers will be out in full force on Halloween to keep
residents safe.
HOLD PUBLIC HEARING/ADOPT ASSESSMENT ROLL118-381UNIVERSITY AVENUE
NWRECONSTRUCTION
Director of Public Works Berkowitz presented background on the project explaining University
Avenue from Andover Boulevard to 157�h Avenue was reconstructed during the summer of 2019
The project was jointly funded between the cities of Andover and Ham Lake. Mr. Berkowitz
showed a video of the road before and after the construction process.
Regular Andover City Council Meeting
Minutes — October 15, 2019
Page 3
1 Mr. Berkowitz detailed the cost of the project per unit and discussed an agricultural property
2 comprising of 4 units. Mr. Berkowitz explained the assessment process, how residents can pay,
3 the objection process, and deferral process. The final assessment amount was determined to be
4 $7,198.07 per unit to be assessed over an 8 -year period at 4.5% interest.
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6 Motion by Holthus, Seconded by Knight, to open the public hearing at 7:24 p.m. Motion carried
7 unanimously.
9 Richard MacGlover, 15245 University Avenue NE, Ham Lake, came forward and spoke about
10 flooding from water running off the road. He stated water runs into a nearby sod field and stands
11 for long periods of time. He would have liked to see the city address the drainage when road was
12 reconstructed.
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14 No one else wished to speak.
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16 Motion by Holthus, Seconded by Knight, to close the public hearing at 7:26 p.m. Motion carried
17 unanimously.
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19 Mayor Trude asked Mr. Berkowitz to address the Mr. MacGlover's concern.
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21 Mr. Berkowitz stated the City approached the City of Ham Lake and they indicated they weren't
22 interested in addressing the issue of drainage. Mr. Berkowitz stated the drainage issue Mr.
23 MacGlover addressed is on the Ham Lake side of the road and not an issue that Andover could
24 resolve on their own.
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26 Mayor Trude asked City Attorney Mr. Baumgartner about the normal course of water and liability.
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28 Mr. Baumgartner responded if the water is on a normal course and not altered by City due to
29 construction or reconstruction, it is the property owner's responsibility to remedy.
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31 Mr. MacGlover stated the water runs on the Ham Lake side and has increased since the road was
32 paved.
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34 Mayor Trude explained the City attempts to work with the City of Ham Lake, however, the City
35 cannot take action because the issue is not within its boundaries.
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37 Motion by Bukkila, Seconded by Holthus, to adopt Resolution No. R083-19 approving the
38 assessment roll for the improvement of Project No. 18-38, University Avenue NW Reconstruction.
39 Motion carried unanimously.
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41 HOLD PUBLIC HEARING. VACATION OF DRAINAGE AND UTILITY EASEMENT —
42 16381 INCA STREET NW, MICAH AND ABBE YPAYEUR
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44 Community Development Director Janish presented information in the staff report stating the
45 property owner is seeking to vacate a portion of the existing drainage and utility easement across
Regular Andover City Council Meeting
Minutes — October 15, 2019
Page 4
1 parts of the residential lot located at 16381 Inca Street NW within the Silver Meadows West
2 subdivision. Mr. Janish displayed a drawing showing the area on a map. Mr. Janish explained the
3 property owner is requesting the vacation of easement to increase the usable area for the
4 construction of an accessory structure. Mr. Janish stated the easement can be confined and still
5 provide an adequate drainage and utility easement.
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7 Motion by Bukkila, Seconded by Barthel to open the public hearing at 7:35 p.m. Motion carried
8 unanimously.
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10 No one wished to address this item.
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12 Motion by Bukkila, Seconded by Knight, to close the public hearing at 7:35 p.m. Motion carried
13 unanimously.
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15 Motion by Bukkila, Seconded by Holthus, to adopt Resolution No. R084-19 granting the vacation
16 of drainage and utility easement at 16381 Inca Street NW. Motion carried unanimously.
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18 HOLD PUBLIC HEARING/CONSIDER RESOLUTION ADOPTING 2020-2024 CAPITAL
19 IMPROVEMENT PLAN
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21 City Administrator Dickinson detailed the information in the staff report and presented a summary
22 of the Capital Improvement Plan (CIP). He stated the document is available for public viewing in
23 the Finance Department at City Hall and will be posted on the City website when approved. Mr.
24 Dickinson stated the CIP document is the product of numerous staff meetings and workshops with
25 the City Council throughout the year. Mr. Dickinson detailed the process and timeline for items
26 listed in the CIP. Mr. Dickinson briefly reviewed the annual expenditures stating the average
27 annual expenditure in the CIP is $7-9 million per year, with 2019 being an anomaly due to the City
28 Campus improvements. Mr. Dickinson stated the City Council is requested to hold a Public
29 Hearing to give the public the opportunity to comment on the proposed 2020-2024 Capital
30 Improvement Plan.
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32 Motion by Knight, Seconded by Holthus, to open the public hearing at 7:43 p.m. Motion carried
33 unanimously.
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35 At this time, there were no residents in the Chambers, and no one wished to address this item.
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37 Motion by Holthus, Seconded by Barthel, to close the public hearing at 7:43 p.m. Motion carried
38 unanimously.
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40 Motion by Barthel, Seconded by Knight, to adopt Resolution No. R082-19 approving the City of
41 Andover 2020-2024 Capital Improvement Plan.
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43 Mayor Trude stated Council and staff put a lot of time and effort into developing the CIP and
44 indicated most of the CIP funding is going to roads.
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Regular Andover City Council Meeting
Minutes — October 15, 2019
Page 5
1 Councilmember Bukkila stated there are projects in the CIP that not everyone agrees on but there
2 was a lot of discussion and many meetings throughout the year to reach this point. She stated this
3 document is fluid and not written in concrete.
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5 Councilmember Holthus thanked staff for their work on the CIP. Councilmember Knight
6 concurred.
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8 Mayor Trude stated there was a lot of work behind the scenes and thanked staff for taking the time
9 to evaluate the City's needs and set priorities. Mr. Dickinson stated most of the time and effort
10 was conducted by Finance and Public Works.
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12 Motion carried unanimously.
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14 CONSIDER CONDITIONAL USE PERMIT (CUP) — INTERIM PERFORMANCE
15 STANDARDS AND EXTERIOR STORAGE — 3098 162ND LANE NW — BEST OUTDOOR
16 SERVICES INC.ITOMROSSMEISL
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18 Mayor Trude acknowledged the applicant has withdrawn the application for a CUP.
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20 CONSIDER RESOLUTION CALLING FOR PUBLIC HEARING ON THE ISSUANCE OFA
21 REVENUE NOTE/CONDUIT FINANCING FOR THE YMCA OF THE GREATER TWIN
22 CITIES
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24 City Administrator Dickinson reviewed the information in the staff report with the Council. He
25 stated the City Council is requested to approve a resolution calling for a public hearing on the
26 issuance of a revenue note and authorizing the publication of a notice of hearing for the YMCA of
27 the Greater Twin Cities Project.
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29 Mr. Dickinson stated the City is entering into a conduit financing agreement with the YMCA and
30 explained that the City is lending its name to facilitate financing for the Community Center
31 expansion project. Mr. Dickinson stated the City has no obligation for payment of the debt and
32 the YMCA will have a financing agreement directly with the lender. The loan for the YMCA is
33 not charged against the City credit and the City is charging the YMCA .25% to cover staff and
34 legal expenses.
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36 Mr. Dickinson explained the YMCA is seeking $6.65 million to add gym space, childcare area,
37 studio space, fitness equipment, an elevator, remodeling the front entry, and contributing to
38 additional parking.
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40 Motion by Knight, Seconded by Barthel, to adopt Resolution No. R085-19 calling for a Public
41 Hearing at 7:00 p.m. on Wednesday, November 6, 2019 on the issuance of a revenue note and
42 authorizing the publication of a notice of hearing t herefor (YMCA of the Greater Twin Cities
43 Project). Motion carried unanimously.
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Regular Andover City Council Meeting
Minutes — October 15, 2019
Page 6
1 CONSIDER REQUEST OF DEVELOPER FOR THE VILLAS AT CROSSTOWN WOODS
2 DEVELOPMENT
4 Mayor Trude acknowledged the developer has formally withdrawn his request.
6 ADMINISTRATOR'S REPORT
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8 City Staff updated the Council on the administration and city department activities, legislative
9 updates, updates on development/CIP projects, and meeting reminders/community events.
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11 (Administrative Staff Report) Mr. Dickinson stated there are 95 new home permits this year. Mr.
12 Dickinson updated the Council on several projects, including Andover High School, the Public
13 Works and Community Center expansion, Legacy Christian Academy, and Riverdale Assembly
14 of God. He stated the WDE waste removal project is going well, with completion of drum removal.
15 He stated the next stage is removal of soil under the pit taking around 30-45 days. Mr. Dickinson
16 reminded the Council of a workshop meeting and a joint meeting with the Park and Recreation
17 Commission on October 22"d. Mr. Dickinson recognized the retirement of Jerry Streich effective
18 January 31, 2020. He stated the City is beginning the recruitment process and hopes to have the
19 new Chief on staff by the end of the year to work with Chief Streich for a month. Mr. Dickinson
20 commended Chief Streich on his service and dedication to the City of Andover.
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22 (Public Works/Engineering Department Report) Mr. Berkowitz updated the Council on the
23 Public Works project stating the anticipated occupancy date for the cold storage building is
24 December 1" and the vehicle maintenance building is February or March of 2020. Mr. Berkowitz
25 stated staff is preparing for 2020 street reconstruction projects and will be hosting neighborhood
26 information sessions in November and December. Mr. Berkowitz updated Council on the Hanson
27 Boulevard project indicating the final wear coat will be applied this week and hopefully the
28 streetlights will be installed before winter.
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30 (Community Development Department Report) Mr. Janish informed the Council that he is
31 working with Engineering on the 2040 Comprehensive Plan. He indicated his department is
32 reviewing commercial site plans and working with property owners on their projects. He stated
33 Mr. Griffiths is working with residents on code enforcement issues in their neighborhoods.
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35 MAYOR/COUNCIL INPUT
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37 (Community Center Advisory Commission) Mayor Trude announced she is an alternate
38 representative for the Community Center Advisory Commission. The Facilities Manager is
39 meeting to see if they can improve lighting and signage in the parking lot to make it safer for
40 community center patrons. She stated residents can get updates through the website and
41 Facebook. Mayor Trude shared that there are over 100 participants signed up for skating lessons
42 and over 100 participants for indoor soccer. She announced the YMCA will be holding a free
43 Halloween event and a free Cookies with Santa event. The Hockey Association has 2 more teams
44 than last year, bringing the total of teams to 19. She announced the projected opening for full
45 operation of the Community Center will be October 2020
Regular Andover City Council Meeting
Minutes — October 15, 2019
Page 7
(Cub Scouts) Mayor Trude is meeting with a Cub Scout Pack this week.
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ADJOURNMENT
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Motion by Holthus, Seconded by Bukkila, to adjourn. Motion carried unanimously. The meeting
adjourned at 8:07 p.m.
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8 Respectfully submitted,
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10 Shari Kunza, Recording Secretary
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REGULAR ANDOVER CITY COUNCIL MEETING MINUTES —OCTOBER I S, 2019
TABLE OF CONTENTS
PLEDGE OF ALLEGIANCE.........................................................................................................
1
RESIDENTFORUM......................................................................................................................
I
AGENDA APPROVAL..................................................................................................................
1
APPROVALOF MINUTES...........................................................................................................
1
CONSENTITEMS.........................................................................................................................
2
Item 2 Approve Payment of Claims............................................................................................
2
Item 3 Approve Appointment — City Planner..............................................................................
2
Item 4 Accept Retirement of Jerry Streich - Fire Chief..............................................................
2
Item 5 Approve 2020 Polling Locations(R080-19)....................................................................
2
Item 6 Approve Final Plat — Estates of Cedar Ridge — Bergeron Developers, LLC — Joshua
Bergeron(R081-19)...................................................................................................................
2
Item 7 Award Bid & Quotes/17-26/Andover YMCA Community Center Expansion ................
2
Item 8 Approve 2019 Amended and Restated Joint Powers Agreement for a Coalition of
Metropolitan Communities/North Metro Mayors Association ..................................................
2
ANOKA COUNTY SHERIFF'S OFFICE MONTHLY REPORT ................................................
2
HOLD PUBLIC HEARING/ADOPT ASSESSMENT ROLL/18-38/UNIVERSITY AVENUE
NW RECONSTRUCTION(R083-19).......................................................................................
2
HOLD PUBLIC HEARING: VACATION OF DRAINAGE AND UTILITY EASEMENT —
163 81 INCA STREET NW, MICAH AND ABBEY PAYEUR(R084-19)..............................
3
HOLD PUBLIC HEARING/CONSIDER RESOLUTION ADOPTING 2020-2024 CAPITAL
IMPROVEMENT PLAN(R082-19)..........................................................................................
4
CONSIDER CONDITIONAL USE PERMIT (CUP) — INTERIM PERFORMANCE
STANDARDS AND EXTERIOR STORAGE — 3098 162ND LANE NW — BEST
OUTDOOR SERVICES INC./TOM ROSSMEISL...................................................................
5
CONSIDER RESOLUTION CALLING FOR PUBLIC HEARING ON THE ISSUANCE OF A
REVENUE NOTE/CONDUIT FINANCING FOR THE YMCA OF THE GREATER TWIN
CITIES(R085-19)......................................................................................................................
5
CONSIDER REQUEST OF DEVELOPER FOR THE VILLAS AT CROSSTOWN WOODS
DEVELOPMENT......................................................................................................................
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ADMINISTRATOR'S REPORT....................................................................................................
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(Administrative Staff Report).....................................................................................................
6
(Public Works/Engineering Department Report)........................................................................
6
(Community Development Department Report)........................................................................
6
MAYOR/COUNCIL INPUT..........................................................................................................
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(Community Center Advisory Commission)..............................................................................
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(Cub Scouts)................................................................................................................................
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ADJOURNMENT...........................................................................................................................
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6 ANDOVER CITY COUNCIL WORKSHOP MEETING — OCTOBER 22, 2019
7 MINUTES
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10 The Workshop Meeting of the Andover City Council was called to order by Mayor Julie Trude,
11 October 22, 2019 6:00 p.m., at the Andover City Hall, 1685 Crosstown Boulevard NW, Andover,
12 Minnesota.
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14 Councilmembers present: Mike Knight, Sheri Bukkila, Valerie Holthus and Jamie Barthel
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16 Councilmember absent: None
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18 Park Commissioners present: Chair Jim Lindahl, Commissioners Ted Butler,-, Angela Marinello
19 Kathy McElhose, Mark Miskowiec, Dawn Perra and Jake Widmyer
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21 Also present: City Administrator, Jim Dickinson
22 Community Development Director, Joe Janish
23 Director of Public Works/City Engineer, David Berkowitz
24 Assistant Public Works Director, Todd Haas
25 Parks Maintenance Supervisor,; Jason Grode
26 Others
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28 Approval of the agenda
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30 Mayor Trude moved Item #If ahead of Item #la to accommodate residents in the audience.
31 Motion by Holthus, Seconded by Barthel to approve the Workshop agenda as amended.
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33 1. JOINT MEETING WITH PARK & RECREATION COMMISSION
34 f. DISCUSS MOWING AREAS WITHIN NATURAL AREAS VERSUS
35 IRRIGATEDAREAS
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37 Public Works Director Berkowitz gave background information on the decision to reduce mowing
38 in 2009 in order to cut costs.
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40 Jason Grode presented historical information on mowing and park maintenance from 2009 through
41 2019. Mr. Grode reviewed the growth in parks, trails, and irrigation, leading to a heavier workload
42 for the department. Mr. Grode stated staff has looked at areas where they can reduce mowing.
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44 Mr. Berkowitz stated one additional staff person has been added since 2009 despite the park and
45 trail growth.
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47 Mayor Trude questioned the installation of irrigation in parks and wanted the City to assess the
Andover City Council Workshop Meeting
Minutes — October 22, 2019
Page 2
benefits to the residents prior to installing irrigation.
Councilmember Holthus stated areas without irrigation wouldn't have to be mowed as often.
Mr. Grode replied that it depended on the weather. The City tries to put an inch to an inch and
half of water on the turf per week.
8 Park Commission Chair Lindahl responded irrigation was put in to keep the grass in good condition
9 and keep weeds out.
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11 Mayor Trude recognized the residents from Woodland Terrace and invited them to introduce
12 themselves and address the Council and Park and Recreation Commission.
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14 Judy and Mark Reier, 13420 Narcissus Street, and Ellen Kohn, 13415 Narcissus Street, introduced
15 themselves as neighbors of Woodland Terrace.
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17 Mrs. Reier explained when they moved in, the lot across the street was owned by the developer
18 and well landscaped and mowed. Since the City developed a park, it has changed. When irrigation
19 was added, the park looked better, but in 2009, the City let the outlot grow and did not mow it.
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21 Mr. Reier stated the outlot was used as a skating rink before it was moved to the baseball field
22 area. He said the park is well used. His main concern is the three large triangles behind the
23 pumphouse that are not mowed and look bad.
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25 Mrs. Reier stated she has adjusted to the drainage ditch not being mowed, but now she looks out
26 of her house and sees weeds. She said the pumphouse looks like it is sitting in weeds.
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28 Mr. Reier informed the Council if the City mowed the triangles, it would only be an additional
29 one-third acre.
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31 Councilmember Holthus clarified that residents would like the area from the top of ridge to the
32 trail mowed.
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34 Councilmember Bukkila asked if it would be better to add landscaping and a border between the
35 ridge and the slope. Ms. Kohn stated the tall grass is nice, but people walk in the park and she
36 loses them in the grass.
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38 Mayor Trude informed the residents this is the first time that staff has heard of this and that staff
39 will discuss the issue and come back with a solution. Park Commission Chair Lindahl stated a
40 solution could be to put in pollinator plants and strip mow. He stated the Conservation District
41 would help and the City could get grant money.
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43 Mayor Trude stated the City normally takes good care of areas by wellhouses and the City tries to
44 be a good neighbor. She stated that people are always receptive to better neighbors.
Andover City Council Workshop Meeting
Minutes — October 22, 2019
Page 3
1 Mr. Berkowitz responded that staff will come back with a solution and would like to continue the
2 conversation to talk about the bigger picture of mowing parks throughout the City.
4 Councilmember Bukkila would like staff to come up with options for a solution and the costs
5 associated with each option.
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7 Councilmember Holthus is receptive, however, believes the two areas should be mowed to the tree
8 line at Terrace Park. She inquired about the cost of mowing per hour.
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10 Mr. Grode responded it is approximately $70 per hour for staff, then equipment cost on top of that.
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12 Council came to a consensus to have staff develop options and come back with a plan for Terrace
13 Park.
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15 Mr. Berkowitz informed the Council and Park Commission that staff would like to evaluate
16 additional areas to be no mow zones. He stated the priorities are areas that are heavily used and
17 irrigated are regularly mowed. He stated that areas that aren't used, mowing can be reduced or
18 eliminated. He informed the Council that if mowing areas are added, it will lead to an increase in
19 the budget for staff, equipment, and contract mowing.
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21 Mayor Trude stated the City has different standards for parks in rural areas, parks in developed
22 areas, and parks with natural buffers.
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24 Councilmember Bukkila informed the Council and Park Commission that she lives near one of
25 those areas where mowing was reduced. She worked with staff so she could maintain on the other
26 side of her fence. She stated this area was not irrigated and had terrible weeds. She has found this
27 to be a great solution because the mowers are no longer bringing weeds over from the park side.
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29 Mayor Trude stated the impact on a neighbor needs to be considered when making the decision to
30 mow or not.
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32 Mr. Berkowitz informed the Council that staff consistently tells residents they aren't going to make
33 a change to the no mow zones and residents will have to come to Council before a change is make.
34 He stressed the importance of staff staying consistent with the message.
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36 Mayor Trude asked there be no additions to the no mow zones in well developed areas to maintain
37 a high City standard. She asked about Hidden Creek North where she saw people walking through
38 tall grass to get to baseball games and sit in tall grass to watch the games. She stated the area looks
39 forgotten.
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41 Commissioner Ted Butler stated he has been to that park many times as a coach and there is plenty
42 of space to watch the games without sitting in tall grass and there are bleachers.
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44 Commissioner Perra stated the tall grass acts as a buffer so kids don't run in the street.
Andover City Council Workshop Meeting
Minutes — October 22, 2019
Page 4
Mayor Trude asked everyone to look at it from a neighborhood welcoming perspective. When the
City stops mowing near a resident's lot it impacts their quality of life.
4 Park Commission Chair Lindahl stated he would like to see more plantings and proclaimed the
5 trend is coming for more natural areas.
7 Park Commission Chair Lindahl would like to see the trend of getting away from mowing and
8 install pockets with prairie plants attracting more birds and butterflies.
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10 Mayor Trude asked if staff had time to identify areas where these plantings could be done. She
11 stated that grant money would certainly help.
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13 Mr. Grode replied that staff has identified several pockets that were unused and could be turned
14 into natural areas.
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16 Park Commission Chair Lindahl stressed the importance of talking to the neighbors and telling
17 them the City is planting more prairie plants and not mowing as much.
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19 Mr. Berkowitz informed the Council that there are several areas where staff mows athletic fields
20 and warm up/spectator areas and leaves the perimeter as a natural area.
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22 Mayor Trude stated she likes the idea of working with neighbors and pollinator groups to find a
23 solution using community volunteer hours and grants.
24
25 a. DISCUSS UPDA TING OF THE PARK DEDICA TION STUD Y
26
27 Mr. Haas discussed the Park Dedication Plan and stated the Park Commission would like Council
28 to direct staff to update the plan to make it more accurate.
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30 Councilmember Bukkila has seen costs double from what was projected, and the list is only two
31 years old. She questioned if the City is moving too slowly in keeping up with cost estimates and
32 would like to see the plan updated annually.
33
34 Park Commission Chair Lindahl stated the City is divided into 4 zones and the Park Commission
35 looks at one zone per quarter but doesn't have the resources to change anything.
36
37 Mr. Haas stated the plan is set up to be updated every 5 years, however recently, costs are going
38 up at a faster rate.
39
40 Mayor Trude stated the City is probably behind on our park dedication fees.
41
42 Park Commission Chair Lindahl stated that labor costs have gone up because contactors are short
43 on labor and extremely busy, so they bid at a higher rate.
44
Andover City Council Workshop Meeting
Minutes — October 22, 2019
Page 5
1 Mr. Berkowitz stated the City has not seen this rate of cost increase in 20 years and pointed out
2 that multiple cities have not awarded projects due to high bids. Andover is planning for a 3%
3 annual increase in costs and that under normal circumstances, a five-year plan is adequate.
4
5 Councilmember Bukkila stated park dedication fees are only part of the issue. She stated the City
6 also needs to look at maintenance and replacement of items, taking into account the bigger picture
7 to keep pace with the current market and economy. Councilmember Bukkila would like to see the
8 plan updated each year.
9
10 Councilmember Barthel stated it would be nice to have it done annually to make adjustments to
11 what is actually going on and things that have occurred that weren't expected.
12
13 Consensus of the Council is to direct staff to update the Park Dedication and Facility Study
14 annually.
15
16 b. DISCUSS THE 2020-2024 CIP FOR PARKS
17
18 Mr. Haas presented the 5 -year plan and highlighted the projects listed in the plan.
19
20 2020
21 Andover Station North East Ballfield Lighting -$180,000 with $90,000 matching funds
22 from the baseball association.
23 Kelsey Round Lake Park Trail Expansion - $175, 000 with funds from a DNR grant.
24 2021
25 Prairie Knoll Park Parking lot with curb - $170, 000. Mr. Haas says the lot is being used
26 frequently now that associations are required to have parking attendants. When one lot is
27 full, attendants are directing them to the other lot.
28
29 2022 & 2023
30
31 There are projects staff would like to do, but there is no funding.
32 2024
33
34
35
36
37
38
39
40
41
42
43
44
Pine Hills North Parking lot - The Park Commission would like to see it constructed but
Council has removed it from the plan.
Mr. Dickinson stated park dedication funds are coming in sooner than expected and the Park
Commission will have funds to work with, but he doesn't envision that continuing into the future.
He stated there is an insurgence of cash flow at this time due to the City's interest rate being high
enough that developers are paying fees off.
Mayor Trude asked Mr. Dickinson to update the Park Commission on number of homes built at
least this year. Mr. Dickinson stated that Andover is at 101 new home permits pulled this year with
110 anticipated by year end.
Andover City Council Workshop Meeting
Minutes — October 22, 2019
Page 6
1 Councilmember Bukkila asked Mr. Dickinson to explain the Andover Station North land situation.
2 Mr. Dickinson explained the Andover Station North ballfields are technically on outlots owned by
3 the EDA and not on dedicated park land. At some point, the fields can be repurposed and sold.
4 Pine Hills North also includes land on outlots owned by the City.
6 Councilmember Bukkila asked if it was a good idea to use City dollars to make improvements on
7 property that can get turned over to be a tax generator.
8
9 Mayor Trude stated the repurposing of the outlots is quite a way out.
10
11 Commissioner Butler stated he understands using outlots for recreational purposes; however, the
12 challenge is if the City decides to sell the land, there would be a lot of pushback from park users
13 and residents. He stated there would have to be a replacement of the facility somewhere else in
14 the City.
15
16 Councilmember Bukkila stated there is a lot of potential park land in the City, whereas, there is
17 limited commercial and industrial property. She asked if it is smart to continue to develop parks
18 on land with the potential of being sold.
19
20 Park Commission Chair Lindahl stated sports are still growing and if a park is taken away, it must
21 be replaced somewhere else within the City.
22
23 Councilmember Bukkila wants the City to make decisions knowingly.
24
25 Councilmember Holthus asked if lights can be moved. Park Commission Chair Lindahl stated
26 yes, the poles can be moved to a different location.
27
28 Mayor Trude stated there is potential growth, perhaps in 10 years. The nearby business is growing,
29 however, not at the pace expected.
30
31 Councilmember Barthel asked if the property is owned by the EDA, why doesn't the EDA pay for
32 the lights. Commissioner Butler stated the Park Dedication Fund was in a deficit and the EDA
33 stepped up to help to attract activity to the area.
34
35 Mr. Dickinson stated the EDA helped because finishing the park helped market and develop the
36 surrounding area. Mr. Dickinson mentioned there are building restrictions near the WDE waste
37 site which prohibits development within a certain perimeter of the landfill. The City gave the
38 nearby business tax increment funding to build there. There is potential the restrictions could go
39 away now that the area is being cleaned up, but that will be out a number of years.
40
41 Mayor Trude stated the park helped develop the surrounding area, including the building of new
42 homes.
43
44 Councilmember Bukkila stated parks helped develop the area, but she didn't believe the ballfields
Andover City Council Workshop Meeting
Minutes — October 22, 2019
Page 7
were that much of a draw.
Mayor Trude stated she found that neighbors are happy with the entire park.
Park Commission Chair Lindahl stated when there are tournaments, the surrounding businesses
thrive. The park is both a draw and a benefit.
8 Commissioner Miskowiec asked about the parking lot at Prairie Knoll and if it could be built
9 without curbs as leaving out curbs would cut the cost significantly. Mr. Haas stated it is an option
10 and staff would bring plans to the Park Commission with a variety of options and the Park
11 Commission would select a recommendation to Council.
12
13 Mayor Trude stated curbs are there to keep cars off the fields.
14
15 Mr. Berkowitz stated that is correct and when there are areas with natural buffers, such as a ditch,
16 the City has not constructed curb. He stated there are options and alternatives.
17
18 Commissioner Butler asked a question about the Pine Hills North parking lot and since the Park
19 Fund is expecting more revenue, can the City move that up in the CIP. He stated he would like to
20 see the master plan completed.
21
22 Mayor Trude stated the Council focused on 2020 and not much past it. She stated the reason Pine
23 Hills North parking lot was pushed out past 2024 is that it is a rural park, an outlot, and there were
24 budget restraints making it not a high enough priority.
25
26 Commissioner Butler stated Prairie Knoll was designed to be paved and is not operating in an
27 efficient manner due to gravel. He stated that Prairie Knoll is a showcase park for turf sports,
28 especially soccer.
29
30 Councilmember Holthus asked the number of police calls the Sheriff receives from both Prairie
31 Knoll and Pine Hills. Mr. Haas replied there are calls for both parks, however, Prairie Knoll has
32 more than Pine Hills.
33
34 Commissioner Miskowiec understands the Council is receiving complaints but doesn't believe that
35 3-4 squeaky wheels should be driving the decision of which parking lot to install.
36
37 Councilmember Barthel stated he voted to move Pine Hills off the CIP due to budget constraints
38 and that if there is an increase in the funding wouldn't mind moving it back in.
39
40 Commissioner Butler stated the Park Commission would prefer to pave Pine Hills prior to Prairie
41 Knoll.
42
43 Councilmember Holthus asked about the requirements to installing curb and if the City could just
44 pave the parking lots at both locations and leave off the curb. Mayor Trude stated requiring curb
Andover City Council Workshop Meeting
Minutes — October 22, 2019
Page 8
is a City policy.
3 Mr. Berkowitz stated the City requires commercial properties to have curbs and asked the Park
4 Commission and Council how they want to have the City look. He stated every road has curb and
5 gutter. The few exceptions the City has involves a ditch where the water can run into. He stated
6 staff prefers consistency and supports few exceptions.
7
8 Councilmember Bukkila asked Mr. Berkowitz to explain the difference in types of curbing. Mr.
9 Berkowitz explained there are three types of curbs: B6 curb which has a 6 -inch riser;
10 surmountable curb which is in residential areas; and ribbon curbs, an 18 -inch piece of concrete,
11 which is typically used with runoff into ditches. He explained the benefits of curbing are
12 conveyance of water, strong edge along the bituminous road or parking lot, controls traffic and
13 parking, and lasts longer. He stated Pine Hills North has drainage ditches which may not require
14 a curb. He stated the cost difference between curb and no curb is around 15-25%. The difference
15 between a ribbon curb and a surmountable curb is minimal.
16
17 Mayor Trude stated it is City policy to have concrete curbs and the City needs to be careful of a
18 double standard where the City has different rules for itself than it requires for the businesses. The
19 only exception the City has made is where there is a drainage ditch because that is what the City
20 has done in neighborhoods. She stated the Council is consistent on this policy.
21
22 Park Commission Chair Lindahl stated the Park Commission has talked with associations using
23 Prairie Knoll to stagger their games so parking does not overlap. He stated Pine Hills North is
24 used more than Prairie Knoll.
25
26 Councilmember Bukkila asked if the Park Commission wanted to flip Pine Hills North and Prairie
27 Knoll in the budget and asked about the cost difference. Park Commission Chair Lindahl stated
28 yes, the Park Commission would prefer that.
29
30 Mayor Trude stated there is about $400,000 difference between the two projects. She stated she
31 remembers the Park Commission saying the City should finish a park once it is started. Mayor
32 Trude explained the paving of the parking lot would finish Prairie Knoll and that Council has been
33 listening to neighbors' complaints about the parking there for years.
34
35 Park Commission Chair Lindahl asked if the City could piggyback on a street project to get the
36 best price. Mr. Berkowitz replied it is tough to do a parking lot project with the street project and
37 it is better to bid a parking lot with a trail project.
38
39 Mr. Dickinson stated the Pine Hills North item was originally in for 2024 and that it can be
40 reviewed again in March when the Council and Park Commission work on the next CIP process.
41
42 Councilmember Holthus stated the Prairie Knoll parking lot is in the budget for $170,000 and Pine
43 Hills is in for $520,000. She stated since the margin is so large the City can't do a flip flop.
44
Andover City Council Workshop Meeting
Minutes — October 22, 2019
Page 9
Park Commission Chair Lindahl replied that the $520,000 includes adding a field and that the
parking lot portion is only $280,000.
Mayor Trude stated the City has had safety issues brought up by Sheriff s Office regarding Prairie
Knoll and the parking lot would address the safety issue.
Staff was directed to look at the options for parking lots and bring to the Park Commission for a
recommendation.
10 C. DISCUSS THE 2020-2024 CIP FOR PLAYGROUND EQUIPMENT
11 REPLACEMENT FOR PARKS
12
13 Mr. Berkowitz introduced the Playground Equipment Replacement Plan and stated playgrounds
14 have a 15 -year life. He informed Council when replacing playgrounds, staff looks at replacing
15 and refurbishing but believes a 15 -year replacement plan is the best way to stay on track for quality
16 playgrounds.
17
18 Mr. Grode displayed the list of 42 parks with playgrounds. He explained staff evaluates each
19 playground as they replace them. He stated some parks need concrete edging, fill replacement,
20 and items to make them ADA compliant. Mr. Grode went through the list of playgrounds for
21 possible refurbishing and those needing replacements. He explained if staff follows the 15 -year
22 replacement schedule which is an industry standard, then the City needs to replace 3 playgrounds
23 per year. He explained the cost of a refurbished playground is approximately $30,000 and a
24 replacement is approximately $60,000. He stated factors for refurbishing include the condition of
25 the structure, if new parts can fit the existing structure, and neighborhood input.
26
27 Commissioner McElhose asked the cost of woodchips vs rubber fill. Mr. Grode stated most cities
28 are removing rubber fill due to health issues. He said the City is starting to use Tamarack Flex
29 Fiber (used at Purple Park) because it lasts longer than woodchips.
30
31 Park Commission Chair Lindahl stated that more money is needed in order to replace 3 parks each
32 year.
33
34 Councilmember Holthus recommended focusing on parks that are larger and with more amenities
35 like ballfields, because those parks appeal to more ages. She also stated the City cannot let other
36 parks get so bad that they are dangerous.
37
38 Park Commission Chair Lindahl stated parks are a draw to the City and in order to keep that at a
39 quality level, the City needs to have 3 replaced per year instead of 2.
40
41 Mayor Trude asked if there were any suggestions other than more money.
42
43 Commissioner McElhose stated that refurbishing parks was one suggestion.
44
Andover City Council Workshop Meeting
Minutes — October 22, 2019
Page 10
Mr. Berkowitz stated the City could look at reducing the parks that have playgrounds in them and
taking a critical look at new parks and what amenities to put in them. He stated that cities are
moving away from smaller neighborhood parks and constructing larger community parks instead.
5 Commissioner Marinello stated one thought the Park Commission had was to not have
6 playgrounds at parks with ballfields designed for older ages making the assumption that older aged
7 kids have older siblings and those parks may not need a playground. She stated the parks with
8 younger age fields have more kids using the playground.
9
10 Councilmember Bukkila stated she understood the need for more money in the budget for
11 playground replacements and suggested moving towards the appropriate funds to replace three
12 playgrounds per year over the next 4 years.
13
14 Councilmember Knight asked if the City had any connections with real estate agencies because
15 they were the ones who would bring families into Andover. Park Commission Chair Lindahl stated
16 the City could get data from the school district for age projections.
17
18 Mr. Haas informed the Council and Park Commission that staff has sent out surveys to neighbors
19 around parks getting new playgrounds next year and has received several responses.
20
21 Mr. Dickinson stated the Playground Replacement Fund needs additional funding to do 3
22 replacements. He stated the question is can the City fill the gap with a one-time infusion or does
23 the City need to increase the annual budget.
24
25 Mr. Berkowitz stated his department could put in a request for $150,000 for the 2021 budget cycle
26 and see how that goes.
27
28 Mayor Trude said the Council will look at new developments and determine if a park is needed in
29 each one or if access to a park is enough. She stated that everyone usually wants a park.
30
31 d. DISCUSS THE 2020-2024 CIP FOR NEW TRAIL SEGMENT
32 IMPROVEMENTS
33
34 Mr. Haas presented the new trail improvements scheduled in the next 5 years.
35
36 2020 Andover Station North Trail Connection and Kelsey Round Lake Park — DNR grant partial
37 funding.
38 Railroad Underpass Trail Evaluation (Winslow Cove 2°a Addition). Mr. Berkowitz
39 informed the Council and Park Commission that the City has an agreement with Lennar
40 Homes to construct a trail under the railroad tracks to their new development, however, if
41 it is not feasible due to soil conditions, the City can sell the lot back to Lennar. The City
42 has two years to make this determination but will be conducting the research and study in
43 2020.
44
Andover City Council Workshop Meeting
Minutes —October 22, 2019
Page 11
1 2021 No trails are proposed.
2
3 2022 Crosstown Boulevard from Xeon Street to 1591h Avenue.
4 Railroad Underpass Trail (subject to evaluation and approval by City Council).
5
6 2023 Station Parkway from Thrush Street to Hanson Boulevard.
7
8 2024 Verdin Street from 161St Avenue to 1635 Lane.
9
10 Commissioner McElhose expressed her frustration with a great trail across the street from her with
11 no way to access it due to lack of crossings on Crosstown Boulevard. Mr. Berkowitz stated the
12 County does not put crossings in non -controlled intersections. The City is working on developing
13 a policy for pedestrian crossing zones.
14
15 Councilmember Knight asked if there is a plan for trails by the turkey faun. Mr. Berkowitz
16 explained there is a development planned in that area and it will include trails.
17
18
19 e. DISCUSS THE 2020-2024 CIP FOR TRAIL RECONSTRUCTION
20 IMPROVEMENTS INPARKS
21
22 Mr. Haas explained staff is seeing signs of trail reconstruction needed in park boundaries. He
23 presented the five-year plan for trail reconstruction:
24
25 2020 Hills of Bunker Lake West Park
26 2021 Kelsey Round Lake Park
27 2022 Tom Anderson Trail in Coon Creek Park
28 2023-2024 No other park trails have been identified for now. Potential projects will be
29 based on annual condition inspections.
30
31 DISCUSSION ON OTHER ITEMS
32
33 Mayor Trude opened the floor to the Park Commission to talk about items not on the agenda.
34
35 Commissioner Miskowiec expressed interest in not mowing the natural areas. He liked the idea
36 of expanding no mow zones but on a case by case basis. He suggested only adding mowed areas
37 if the City takes away a mowed area. He expressed his confidence in staff determining the no
38 mow zones.
39
40 Mayor Trude stated residents contact Councilmembers because they are elected so Council hears
41 more of the complaints. She urged the Park Commissioners to contact staff if they were contacted
42 and questioned by residents and did not know the responses.
43
44 Commissioner Widmyer spoke about the Parks Department needing more money for maintenance
Andover City Council Workshop Meeting
Minutes — October 22, 2019
Page 12
and replacement. He brought up charging fees for associations that use the parks.
Mayor Trude responded that initiating association fees is a politically charged issue. She stated
she understands that the City has more turf that needs to be mowed and more irrigation.
Commissioner Perra stated the City needs to recognize the cost of adding irrigation means
additional maintenance and would like to add more natural areas.
9 Park Commission Chair Lindahl stated there is a trend for decreased mowing and the City can
10 become a trendsetter.
11
12 Mayor Trude brought up pickleball and stated she was contacted by residents saying Andover is
13 the only City around that does not have outdoor courts.
14
15 Park Commission Chair Lindahl stated the Park Commission has looked at it but there hasn't been
16 a big push. He responded that most pickleball players use the community center indoor facilities.
17
18 The Park and Recreation Commissioners left the meeting.
19
20 g. 2040 COMPREHENSIVE PLAN UPDATE DISCUSSION
21
22 Mr. Janish explained the 2040 Comprehensive Plan has been deemed incomplete and there is a
23 discrepancy between what the City believes population growth will be and what the Met Council
24 has determined. This discrepancy is based on density rates within the MUSA boundary. Mr.
25 Janish informed the Council that the Met Council uses the lowest number of the City's zoning
26 range. The Met Council also uses gross land and not net land which takes out undevelopable areas.
27 Mr. Janish stated this process is bringing the population projection down. Mr. Janish stated staff
28 is looking for direction from Council on what variables to use and presented staff s
29 recommendation.
30
31 Mr. Janish stated staff would like to make the following changes: use net, not gross land; set low
32 density at 2-4 units per acre; set medium density at 4-9 units per acre; and set high density at 9-16
33 units per acre. Medium density always goes through a PUD to ensure distribution of density;
34 setting the number at 9 allows the ability to build affordable housing.
35
36 Councilmember Holthus clarified that staffs proposal is keeping Andover with the same
37 development standards but demonstrates the opportunity for affordable housing to meet the Met
38 Council standards.
39
40 Mr. Dickinson stated Councilmember Holthus is correct. He stated the City has 91 acres of
41 medium density and 112 acres of high density. He stated if we make changes to the
42 Comprehensive Plan after it is approved then the City would go through a Comprehensive Plan
43 Amendment.
44
2
Andover City Council Workshop Meeting
Minutes — October 22, 2019
Page 13
Mr. Janish stated if the plan is not approved, Andover won't be able to extend the MUSA line.
Mr. Dickinson presented other options of meeting the Met Council standards such as making the
family lot size lower and using the PUD process. He stated the last time the City made a significant
update to the Comprehensive Plan was the year 2000, the last submission proposed no changes.
7 Mr. Janish presented locations where Andover could have medium or high-density zones based on
8 sewer capcity. He compared it to developments already completed in the City. He assured the
9 Council that density pockets will need to be spread out due to pipe capacity. If Council is open to
10 these ideas, staff can fine tune the areas where medium and high density is most feasible.
11
12 Mr. Dickinson stated staff can bring this item back to the November 6`h workshop meeting. He
13 stressed the need for Council to define the strata and staff presented these numbers to Council as
14 a practical way to maintain the current format for how Andover is developing. When Council
15 decides on the strata, staff can identify smaller pockets where medium and high density is
16 preferred.
17
18 Mr. Janish stated staff is presenting a realistic number and not changing the character of Andover.
19
20 Mayor Trude stated the Council is more concerned about medium density because it will make
21 Andover look more like Blaine.
22
23 Councilmember Bukkila would like to see what Mr. Janish comes up with regarding medium and
24 high-density locations at the next meeting.
25
26 Mr. Janish stated as the number for the low end of the ranges is increased, the less acreage the City
27 needs to identify at that density.
28
29 Mayor Trude stated she would prefer single-family housing on smaller lots rather than 3-4 level
30 townhomes.
31
32 Mr. Janish clarified the consensus of the Council was to have flexibility on the low residential
33 range, bring back proposed locations for high and medium density, and present this information to
34 Council at the November 6th workshop.
35
36 Councilmember Knight left the meeting 9:15 p.m.
37
38 h. 2020-2024 BUDGET DEVELOPMENT UPDA TE DISCUSSION
39
40 Mr. Dickinson provided an update on health care negotiations. He informed the Council that
41 HealthPartners has proposed a 29% increase over 2019 and Andover is now above average for
42 rates. He presented the options for the City to control the increase and provide good health care
43 benefits as much as possible. Mr. Dickinson presented the following information:
44 HealthPartners - 29% increase
Andover City Council Workshop Meeting
Minutes — October 22, 2019
Page 14
1 Blue Cross Blue Shield — exceeded HealthPartner's increase
2 Medica — 45% increase
3 Sourcewell, Preferred One, and United Health — declined
4 PEEP — value plan 34.24% increase; however, the HSA plan is competitive but changing
5 to a completely different environment with a co -pay and referral environment (not open
6 access).
7
8 Mr. Dickinson stated to stay within an open access plan the best he can do is institute an HRA with
9 a 10-14% increase. He presented the bigger question of what type of employer does Andover want
10 to be. He stated it is a competitive marketplace, and if the City is not providing good health
11 insurance, the City is not going to be as competitive in the job market.
12 Councilmember Bukkila pointed out that there are employees in two different buildings on the
13 City campus and when one person gets sick, it tends to spread quickly. She stated if costs are too
14 high, employees won't go to the doctor and will come to work sick, spreading the illness.
15
16 Mayor Trude asked if employees pay anything towards the premium and most places have
17 employees pay something. Mr. Dickinson responded the City covers the entire cost for the lower
18 level single coverage and contributes towards family coverage.
19
20 Councilmember Bukkila stated she used to get free single coverage, but now pays for single
21 coverage. She stated her employer has multiple levels of coverage: single, employee plus children,
22 employee plus spouse, and family. Mr. Dickinson responded if the City had those options, the
23 family cost will go higher.
24
25 Mr. Dickinson stated the City provides options for two plans: one with lower out of pocket and
26 one with a higher deductible.
27
28 Councilmember Barthel asked what the employees preferred. Mr. Dickinson responded it depends
29 on who you talk to. He asked Council to take the information and think about it so they could
30 provide guidance.
31
32 Mayor Trude stated it's not just a financial issue, it's also a retention and recruitment issue. The
33 Council concurred.
34
35 Mr. Dickinson concurred and relayed that Andover has lost staff to neighboring cities and the
36 County, he will present a recommendation after receiving more feedback from the broker and the
37 City Insurance Committee.
38
39 STAFFING ISSUES
40
41 Mr. Dickinson reported that the Building Department will have some future retirements and he
42 reported that there is a potential leave where they may be reducing hours. He informed the Council
43 that there are big projects in the mix and appropriate staffing is essential. He proposed hiring a
44 provisional full-time, benefited, Building Inspector with appropriate licensing and when there is a
Andover City Council Workshop Meeting
Minutes — October 22, 2019
Page 15
1 retirement or resignation, the provisional employee would be permanent and staffing again
2 reevaluated.
3
4 The Council came to a consensus to move forward with Mr. Dickinson's proposal.
5
6 Mayor Trude asked about the Fire Chief position. Mr. Dickinson responded that the City is seeing
7 interest in the position and has received a handful of applications and with more expected.
8
9 i. COMMUNITY VISION, GOALSAND VALUES DOCUMENT REVIEW
10
11 Not discussed due to time constraints.
12
13 j. 2019 BUDGET PROGRESS REPORTS
14
15 Not discussed due to time constraints.
16
17 k. 2019 CITY INVESTMENTS REVIEW
18
19 Not discussed due to time constraints.
20
21 1. OTHER BUSINESS
22
23 None.
24
25 ADJOURNMENT
26
27 Motion by Bukkila, Seconded by Barthel, to adjourn. Motion carried unanimously. The meeting
28 adjourned at 9:42 p.m.
29
30 Respectfully submitted,
31
32 Shari Kunza, Recording Secretary
TIJ
1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755-5100
FAX (763) 755-8923 • WWW.ANDOVERMN.GOV
TO:
CC:
FROM:
SUBJECT:
DATE:
Mayor and Councilmembers
Jim Dickinson, City Administrator
Lee Brezinka, Finance
Payment of Claims
November 6, 2019
INTRODUCTION
Attached are disbursement edit lists for claims related to the on-going business of the City of Andover.
DISCUSSION
Claims totaling $262,738.84 on disbursement edit list 41 - #5 from 10/14/19 to 10/30/19 has been issued and
released.
Claims totaling $1,756,150.04 on disbursement edit list #6 dated 11/06/19 will be issued and released upon
approval.
BUDGET IMPACT
The edit lists consist of routine payments with expenses being charged to various department budgets and
projects.
ACTION REQUESTED
The Andover City Council is requested to approve total claims in the amount of $2,018,888.88. Please note
that Council Meeting minutes will be used as documented approval.
Respectfully submitted,
Lee Brezinka
Attachments: Check Proof Lists
Accounts Payable
Computer Check Proof List by Vendor
User: BrendaF
Printed: 10/11/2019- 8:54AM
Batch: 00414.10.2019
Invoice No Description
Amount Payment Date Acct Number
Vendor: OptumBan Optum Bank HSA Check Sequence: 1
2019 2019 Employer Contribution -T. Goodrich 3,250.00 10/14/2019 0101-45000-60310
Check Total: 3,250.00
Total for Check Run: 3,250.00
Total of Number of Checks: 1
WNAWR
Reference
ACH Enabled: False
AP -Computer Check Proof List by Vendor (10/11/2019 - 8:54 AM) Page 1
Accounts Payable
Computer Check Proof List by Vendor
User: BrendaF
Printed: 10/18/2019 - 11:17AM
Batch: 00418.10.2019
Invoice No Description
Amount Payment Date Acct Number
Reference
Vendor: KinectEG
Kinect Energy Group
Check Sequence: I
ACH Enabled: False
300393/58528621
Community Center
3,147.04
10/18/2019
2130-44000-62015
300393/59505743
Public Works
103.59
10/18/2019
0101-41930-62015
Check Total:
3,250.63
Vendor: LRRWMO
LRRWMO
Check Sequence: 2
ACH Enabled: False
2020 Street Reconstruction
175.00
10/18/2019
414049300-63005
Check Total:
175.00
Vendor: LRRWMO
LRRWMO
Check Sequence: 3
ACH Enabled: False
2020 Street Reconstruction
2,000.00
10/18/2019
4140-49300-63005
Check Total:
2,000.00
Vendor: RLPSves
RLP Services LLC
Check Sequence: 4
ACH Enabled: False
9356
PW Veh Maint/Cold Storage/Site Wk
2,300.00
10/18/2019
4303-49300-63010
9375
2019 NPDES -Hydro-Seeding
400.00
10/18/2019
5300-48300-63010
Check Total:
2,700.00
Total for Check Run: 8,125.63
Total of Number of Checks: 4
AP -Computer Check Proof List by Vendor (10/18/2019 - 11:17 AK Page 1
Accounts Payable
Computer Check Proof List by Vendor
User: BrendaF
Printed: 10/25/2019 - 3:44PM
Batch: 00422.10.2019
C I T Y d F
���OVER
Invoice No
Description
Amount
Payment Date
Acct Number
Reference
Vendor: AFLAC
AFLAC
Check Sequence: 1
ACH Enabled: False
058908
October 2019 Premium
487.08
10/25/2019
0101-00000-21209
Check Total:
487.08
Vendor: AndLacm
Andover Area Lacrosse Assn
Check Sequence: 2
ACH Enabled: False
Reissued Check back from 04/05/19
300.00
10/25/2019
0101-00000-24201
Check Total:
300.00
Vendor: AndGirlB
Andover Girls High School
Check Sequence: 3
ACH Enabled: False
Ad for 2019 - 2020 Program Order
250.00
10/25/2019
2130-44300-61325
Check Total:
250.00
Vendor: AnkCity
City of Anoka
Check Sequence: 4
ACH Enabled: False
INV00262
Traffic Signal - Bunker & 7th Ave
24.93
10/25/2019
0101-43400-62005
Check Total:
24.93
Vendor: AspenMil
Aspen Mills
Check Sequence: 5
ACH Enabled: False
244728
Uniform for A. Bmtsch
83.70
10/25/2019
0101-42200-61305
244729
Uniform for T. Swanson
159.00
10/25/2019
0101-42200-61305
245623
Uniform for G. Breems
52.95
10/25/2019
0101-42200-61305
Check Total:
295.65
Vendor: AssuSecu
Assured Security Inc.
Check Sequence: 6
ACH Enabled: False
A1023
Lock Labor@ Water Treatment Plant
181.00
10/25/2019
5100-48100-63105
Check Total:
181.00
Vendor: BaxMech
Baxter Mechanical, Inc.
Check Sequence: 7
ACH Enabled: False
100960323
Address Located in Ham Lake
61.00
10/25/2019
0101-42300-52195
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PM)
Page 1
Invoice No Description Amount Payment Date Acct Number Reference
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PM) Page 2
Check Total:
61.00
Vendor: BirchTre
Birch Tree Care
Check Sequence: 8
ACH Enabled: False
21080
EAB Management Program
748.96
10/25/2019
0101-45500-63005
Check Total:
748.96
Vendor: BoyerTm
Boyer Trucks
Check Sequence: 9
ACH Enabled: False
884071
Parts for Unit #78
310.04
10/25/2019
6100-48800-61115
885237
Tank Surge for Unit #206
91.21
10/25/2019
6100-48800-61115
886678
Parts for Unit #14-208
27.92
10/25/2019
6100-48800-61115
CM880297
Return Part from Unit 4206
-7.45
10/25/2019
6100-48800-61115
CM880616
Core Credit for Unit#203
-64.80
10/25/2019
6100-48800-61115
Check Total:
356.92
Vendor: Bro-Tex
Bro-Tex, Inc.
Check Sequence: 10
ACH Enabled: False
523890
Carpet Recycling
450.00
1025/2019
0101-46000-63010
Check Total:
450.00
Vendor: CanCross
Canine Crossing LLC
Check Sequence: 11
ACH Enabled: False
Escrow
Canine Crossing Vet
396.64
10/25/2019
7200-00000-24214
Interest
Canine Crossing Vet
0.09
10/25/2019
7200-41400-56910
Check Total:
396.73
Vendor: CCPIND
CCP Industries Inc
Check Sequence: 12
ACH Enabled: False
IN02403551
00 -JO Supro Max Refils
231.60
1025/2019
6100-48800-61020
Check Total:
231.60
Vendor: CedWrid
Cedar Management, Inc
Check Sequence: 13
ACH Enabled: False
3/2019 LABOR
March 2019 Labor
195.27
10/25/2019
4520-49300-63105
52019 LABOR
May 2019 Labor
86.64
10/25/2019
4520-49300-63105
8/2019 LABOR
August 2019 Labor & Parts
57.71
10/25/2019
4520-49300-63105
92019 LABOR
September 2019 Labor & Parts
202.89
10/25/2019
4520-49300-63105
Check Total:
542.51
Vendor: CedarPlu
Cedar Plumbing
Check Sequence: 14
ACH Enabled: False
7900
RPZ Test & Repair
3,424.01
10/25/2019
5100-48100-63100
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PM) Page 2
Invoice No Description Amount Payment Date Acct Number Reference
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PM) Page 3
Check Total:
3,424.01
Vendor: CenEngRN
CenterPoint Energy
Check Sequence: 15
ACE Enabled: False
Escrow
14327 7th Ave - Expansion 41
1,466.94
10/25/2019
7200-00000-24207
Interest
14327 7th Ave - Expansion #1
0.70
10/25/2019
7200-41400-56910
Check Total:
1,467.64
Vendor: Centerpt
CenterPoint Energy
Check Sequence: 16
ACH Enabled: False
110786514
1900 Veterans Memorial - Vehicle Maint
47.50
10/25/2019
6100-48800-62015
11078654-8
1900 Verterans Memorial - Cold Storage
17.18
10/25/2019
0101-41940-62015
Check Total:
64.68
Vendor: CentHtAi
Centraire Heating & A/C, Inc.
Check Sequence: 17
ACH Enabled: False
100995817
Incorrect Amount on Permit #2019-03320
30.60
10/25/2019
0101-42300-52195
Check Total:
30.00
Vendor: CenLink
CenturyLink
Check Sequence: 18
ACH Enabled: False
763 754-6713
Subway Q Community Center
54.61
10/25/2019
2130-44100-62030
763 755-0776
Public Works Service
24.99
10/25/2019
010141930-62030
763 755-0776
City Hall Service
24.99
10/25/2019
0101-41910-62030
763 755-0776
Community Center Service
25.00
10/25/2019
213044000-62030
763 755-0776
Fire Department Service
25.00
10/25/2019
0101-41920-62030
Check Total:
154.59
Vendor: ChetsSho
Chefs Shoes, Inc.
Check Sequence: 19
ACH Enabled: False
19426/128555
Safety Boots for Chris Olson
106.00
10/25/2019
010143100-61005
19426/128557
Safety Boots for John Wallace
153.00
10/25/2019
610048800-61020
19426/128558
Safety Boots for Mickey Grant
170.00
10/25/2019
0101-43100-61005
19426/128559
Safety Boots for Steve Thmn
150.00
10/25/2019
010145000-61020
19441/712701
Safety Boots for Jason Baumunk
134.84
10/25/2019
010143100-61005
19441/712702
Safety Boots for Kameron Kytonen
117.44
10/25/2019
0101-41600-61005
19441/714185
Safety Boots for Tim Green
173.99
10/25/2019
520048200-61005
19441/714186
Safety Boots for JeffOkerstrom
165.29
10/25/2019
0101-45000-61020
19441/714187
Safety Boots for Todd Lindorff
165.74
10/25/2019
0101-41930-61020
19441/714191
Safety Boots for Taylor Moshier
200.00
10/25/2019
0101-43100-61005
19441/714192
Safety Boots for Jerry Kroll
152.99
10/25/2019
0101-43100-61005
19441/714193
Safety Boots for Luke Virchow
199.74
10/25/2019
0101-43100-61005
19441/714195
Safety Boots for Dan Gray
165.74
10/25/2019
0101-45000-61020
19441/714197
Safety Boots for Wayne Goodrich
152.99
10/25/2019
510048100-61005
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PM) Page 3
Invoice No Description Amount Payment Date Acct Number Reference
19441/714198
Safety Boots for Ryan Eggink
200.00
10/25/2019
010143100-61005
19441/714199
Safety Boots for Scott Hautala
169.99
10/25/2019
6100-48800-61020
Check Total:
2,577.75
Vendor: CintasGK
Cintas Corp - Cintas Loc 416K
Check Sequence: 20
ACH Enabled: False
4032396213
Uniform Cleaning
167.41
10/25/2019
0101-43100-61020
4032396213
Uniform Cleaning
23.93
10/25/2019
0101-43300-61020
4032396213
Uniform Cleaning
71.74
10/25/2019
0101-45000-61020
4032396213
Unifonn Cleaning
23.92
10/25/2019
5100-48100-61020
4032396213
Unifonn Cleaning
47.82
10/25/2019
5200-48200-61020
4032396213
Uniform Cleaning
23.89
10/25/2019
6100-48800-61020
4032965113
Floor Mat Rental
37.46
10/25/2019
0101-41910-62200
4032965114
Floor Mat Rental
69.55
10/25/2019
0101-41930-62200
4032965331
Uniform Cleaning
172.97
10/25/2019
0101-43100-61020
4032965331
Uniform Cleaning
24.72
10/25/2019
0101-43300-61020
4032965331
Uniform Cleaning
74.13
10/25/2019
0101-45000-61020
4032965331
Uniform Cleaning
24.72
10/25/2019
5100-48100-61020
4032965331
Unifoam Cleaning
49.41
10/25/2019
5200-08200-61020
4032965331
Uniform Cleaning
24.68
10/25/2019
6100-48800-61020
Check Total:
836.35
Vendor: CMTDiver
CMT Janitorial Services
Check Sequence: 21
ACH Enabled: False
2144
Monthly Cleaning Service
1,052.60
10/25/2019
0101-41930-63010
2144
Monthly Cleaning Service
470.90
10/25/2019
0101-41920-63010
2144
Monthly Cleaning Service
1,246.50
10/25/2019
0101-41910-63010
Check Total:
2,770.00
Vendor: Colonial
Colonial Life & Accident
Check Sequence: 22
ACH Enabled: False
7156706-1101133
November 2019 Pretniutn - E7156706
279.90
10/25/2019
0101-00000-21210
Check Total:
279.90
Vendor: ConFleet
Consolidated Fleet Services, Inc
Check Sequence: 23
ACH Enabled: False
2019MC0165
Ground Ladders & Heat Sensors
1,074.25
10/25/2019
0101-42200-63010
Check Total:
1,074.25
Vendor: CoreMain
Core & Main LP
Check Sequence: 24
ACH Enabled: False
L382825
Water Meters
4,219.50
10/25/2019
5100-48100-61035
Check Total:
4,219.50
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PM) Page 4
Invoice No Description Amount Payment Date Acct Number Reference
Vendor: CorvalCo
Corval Constructors, Inc
Check Sequence: 25
ACH Enabled: False
855457
Repair on Boilers
2,023.00
10/25/2019
2130-44000-63105
Check Total:
2,023.00
Vendor: CountPri
Countryside Printing, Inc.
Check Sequence: 26
ACH Enabled: False
36020
Punch Cards
159.00
10/25/2019
2130-44400-61020
36033
Couseling Forms - 2 Part
165.00
10/25/2019
0101-42200-61005
Check Total:
324.00
Vendor: DehnGil
Dehn Oil Company
Check Sequence: 27
ACH Enabled: False
72591 -
Diesel Fuel
3,118.46
10/25/2019
6100-48800-61050
72592
Unleaded Fuel
1,028.25
10/25/2019
6100-48800-61045
72655
Diesel for Water Treatment Plant
1,143.03
10/25/2019
5100-48100-61050
74147
Unleaded Fuel
1,039.68
10/25/2019
6100-48800-61045
74148
Diesel Fuel
2,961.25
10/25/2019
6100-48800-61050
Check Total:
9,290.67
Vendor: DiamVoge
Diamond Vogel Paint
Check Sequence: 28
ACH Enabled: False
802190087
Yellow Traffic Paint
62.35
10/25/2019
0101-43100-61020
802190129
RAC 5 Guard & LL5-319
213.75
10/25/2019
0101-43100-61020
802190182
Returned LL5-319
-156.25
10/25/2019
0101-43100-61020
Check Total:
119.85
Vendor: ECM
ECM Publishers, Inc.
Check Sequence: 29
ACH Enabled: False
729432
Monthly Recycling Program
260.00
10/25/2019
0101-46000-63025
730883
CIP Plan - PH
67.50
10/25/2019
4140-49300-63025
730884
2019 Street Reconstruction
78.75
10/25/2019
4140-49300-63025
732958
Anoka Chamber Resource Guide
521.56
10/25/2019
2110-46500-63025
Check Total:
927.81
Vendor: Electins
Electrical Installers, Inc
Check Sequence: 30
ACH Enabled: False
100806673
Cancelled Job
120.00
10/25/2019
0101-42300-52230
Check Total:
120.00
Vendor: EmerAppa
Emergency Apparatus Maint
Check Sequence: 31
ACH Enabled: False
108368
Parts to Repair Unit #4820
269.48
10/25/2019
6100-48800-61115
108368
Labor to Repair Unit #4820
212.25
10/25/2019
6100-48800-63135
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PK Page 5
Invoice No Description Amount Payment Date Acct Number Reference
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PM) Page 6
Check Total:
481.73
Vendor: FacMotor
Factory Motor Parts Company
Check Sequence: 32
ACH Enabled:
False
128-ZO6284
Battery for Unit #566
48.83
10/25/2019
6100-48800-61115
128-ZO6328
Batteries
367.35
10/25/2019
6100-08800-61115
Check Total:
416.18
Vendor: Fastenal
Fastenal Company
Check Sequence: 33
ACH Enabled:
False
NWC8180609
Cable Ties
23.27
10/25/2019
5100-48100-61005
MNTC9180689
Cable Ties
100.64
10/25/2019
5100-48100-61005
Check Total:
123.91
Vendor: FletPrid
FleetPride Truck & Trailer Parts
Check Sequence: 34
ACH Enabled:
False
37130331
LW Penetrant Spray
219.96
10/25/2019
6100-48800-61020
Check Total:
219.96
Vendor: ForceAm
Force America Distributing LLC
Check Sequence: 35
ACH Enabled:
False
001-1383576
Hose
70.06
10/25/2019
6100-48800-61115
Check Total:
70.06
Vendor: GaryCarl
Gary Carlson Equipment
Check Sequence: 36
ACH Enabled:
False
113593-1
Rental of Tandem Roller
311.00
10/25/2019
0101-43100-62200
Check Total:
311.00
Vendor: GATRtmk
GATR Truck Center
Check Sequence: 37
ACH Enabled:
False
OSP535766
Parts for Unit #I1-207
609.14
10/25/2019
6100-48800-61115
Check Total:
609.14
Vendor: GmdElec
Grounded Electric, Inc.
Check Sequence: 38
ACH Enabled:
False
2019-03144
Cancelled Sob
45.00
10/25/2019
0101-42300-52230
Check Total:
45.00
Vendor: Hawkins2
Hawkins Inc
Check Sequence: 39
ACH Enabled:
False
4596685
Chemicals for Water Treatment Plant
230.00
10/25/2019
5100-48100-61040
Check Total:
230.00
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PM) Page 6
Invoice No Description Amount Payment Date Acct Number Reference
Vendor:
HIthPDen
Health Partners
Check Sequence: 40
ACH Enabled:
False
93035784
November 2019 Premium
56,737.52
10/25/2019
0101-00000-21206
93035784
November 2019 Premium
4,273.90
10/25/2019
0101-00000-21208
93035784
November 2019 Premium
729.63
10/25/2019
7100-00000-21218
Check Total:
61,741.05
Vendor:
HenSchei
Henry Schein, Inc.
Check Sequence: 41
ACH Enabled:
False
69531945
Nitrile Gloves
273.84
10/25/2019
0101-42200-61005
Check Total:
273.84
Vendor:
HighPtNw
High Point Networks
Check Sequence: 42
ACH Enabled:
False
140187
VMWam & Office 365 Software Contracts
1,954.00
10/25/2019
0101-41420-62305
Check Total:
1,954.00
Vendor:
HotsyEqu
HotsyMinnesota.com
Check Sequence: 43
ACH Enabled:
False
65040
Labor for Repair on Unit #316
173.25
10/25/2019
6100-48800-63135
65040
Parts for Repair on Unit #316
89.95
10/25/2019
6100-48800-61115
65040
Truck & Equipment Wash Bulk & Ripper
900.04
10/25/2019
6100-48800-61020
Check Total:
1,163.24
Vendor:
Indelco
Indelco Plastics Corp.
Check Sequence: 44
ACH Enabled:
False
INV 144046
Tubing & Female Adapter
184.99
10/25/2019
5100-48100-61135
Check Total:
184.99
Vendor:
InstrRes
Instrumental Research, Inc
Check Sequence: 45
ACH Enabled:
False
2137
September 2019 Total Coliform Testing
370.50
10/25/2019
5100-48100-63005
Check Total:
370.50
Vendor:
InterBat
Interstate All Battery Center
Check Sequence: 46
ACH Enabled:
False
1901202005193
Batteries
118.80
10/25/2019
0101-42200-61005
1901202005276
Battery for Unit #4819
166.95
10/25/2019
6100-48800-61115
Check Total:
285.75
Vendor:
JCFirePr
Johnson Controls Fire Protection LP
Check Sequence: 47
ACH Enabled:
False
21239776
Alarm Monitoring
578.40
10/25/2019
2130-44000-61120
Check Total: 578.40
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PM) �, Page 7
Invoice No Description Amount Payment Date Acct Number Reference
Vendor:
JRAdvanc
JR's Advanced Recyclers
Check Sequence: 48
ACE Enabled:
False
99117
Appliances& Electronics Recycling
440.00
10/25/2019
0101-46000-63010
Check Total:
440.00
Vendor:
KrebsbaV
Valed Krebsbach
Check Sequence: 49
ACH Enabled:
False
00031107
Soccer Camp Refund
128.00
10/25/2019
2130-44400-55523
Check Total:
128.00
Vendor:
Kriss
Kriss Premium Products Inc
Check Sequence: 50
ACH Enabled:
False
163857
CWT -540 Cooling Tower Treatment
433.75
10/25/2019
2130-44300-61020
Check Total:
433.75
Vendor:
KrookKim
Kimberly Krook
Check Sequence: 51
ACH Enabled:
False
Pool Escrow
Pool Escrow @ 1508 138th Lane NW
1,500.00
10/25/2019
0101-00000-24217
Check Total:
1,500.00
Vendor:
LanoEqui
Lano Equipment, Inc.
Check Sequence: 52
ACH Enabled:
False
02-707469
Heater Switch for Unit #120
25.83
10/25/2019
6100-48800-61115
Check Total:
25.83
Vendor:
LeagueMN
League of Minnesota Cities
Check Sequence: 53
ACH Enabled:
False
310894
InDesign- Annual Payment
532.50
10/25/2019
0101-41420-61320
310894
Acrobat Professional Annual Payment
609.00
10/25/2019
0101-41210-61320
Check Total:
1,141.50
Vendor:
LegShiel
Legal Shield
Check Sequence: 54
ACH Enabled:
False
31833
November 2019 Premium
95.70
10/25/2019
0101-00000-21219
Check Total:
95.70
Vendor:
LemunBu
Lennar Corporation
Check Sequence: 55
ACH Enabled:
False
Escrow
Winslow Cove 2nd Addition
86,380.00
10/25/2019
7200-00000-24209
Interest
Winslow Cove 2nd Addition
31.48
10/25/2019
7200-41400-56910
Check Total:
86,411.48
Vendor:
LepageSo
Lepage & Sons
Check Sequence: 56
ACH Enabled:
False
84500
Trash Removal for Parks
635.55
10/25/2019
0101-45000-62020
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PM) Page 8
Invoice No Description Amount Payment Date Acct Number Reference
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PM) Page 9
Check Total:
635.55
Vendor:
LubrTech
Lube -Tech
Check Sequence: 57
ACH Enabled: False
1472151
15W40 Motor Oil
1,413.10
10/25/2019
6100-48800-61115
Check Total:
1,413.10
Vendor:
LVCCom
LVC Companies
Check Sequence: 58
ACH Enabled: False
21663
Comm Cu. Kitchen Inspection
194.00
10/25/2019
2130-44100-63105
21663
Sr. Center Kitchen Inspection
194.00
10/25/2019
0101-41910-63105
Check Total
388.00
Vendor:
MacgEmer
Macqueen Emergency Group
Check Sequence: 59
ACH Enabled: False
W01703
Labor to Repair Unit #4886
485.30
10/25/2019
6100-48800-63135
W01703
Part to Repair Unit #4886
38.57
10/25/2019
6100-08800-61115
Check Total:
523.87
Vendor:
MacQueen
MacQueen Equipment Inc.
Check Sequence: 60
ACH Enabled: False
P22603
Pelican Tube Broom for Unit #169
719.65
10/25/2019
6100-48800-61115
Check Total:
719.65
Vendor:
Menards
Menards
Check Sequence: 61
ACH Enabled: False
10568
Drill Mixer
183.88
10/25/2019
0101-43300-61105
10570
Returned Drill Mixer
-169.00
10/25/2019
0101-43300-61105
10571
Rotary Hammer
159.00
10/25/2019
0101-43300-61105
11476
Tools
63.42
10/25/2019
5100-48100-61205
11805
Radar Illusion 2/24 2X4
239.70
10/25/2019
0101-41910-61120
12005
Pro Marking Paint
68.74
10/25/2019
0101-45000-61020
12322
Misc. Supplies
80.64
10/25/2019
0101-42200-61015
12510
Mise. Supplies
60.95
10/25/2019
0101-41970-61120
12654
Misc. Supplies
19.97
10/25/2019
0101-41920-61120
12660
Mise. Supplies
13.99
10/25/2019
0101-41920-61120
12818
Pipe Wrap
11.96
10/25/2019
5100-48100-61135
9576
Misc. Supplies
217.98
10/25/2019
0101-42200-61015
9576
Misc. Supplies
217.97
10/25/2019
0101-42200-61315
Check Total:
1,169.20
Vendor:
MetWes
Metro Sales Incorporated
Check Sequence: 62
ACH Enabled: False
INV 1445130
Ricoh Wide Format Lease
222.64
10/25/2019
2210-41600-62200
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PM) Page 9
Invoice No Description Amount Payment Date Acct Number Reference
INVI445130
Ricoh Wide Format Lease
87.12
10/25/2019
0101-42300-62200
INVI445130
Ricoh Wide Format Lease
87.12
10/25/2019
0101-41600-62200
INVI445130
Ricoh Wide Format Lease
87.12
10/25/2019
0101-41500-62200
INV 1450524
Contract Base Rate & Usage Charge
24.99
10/25/2019
0101-42300-61020
INV 1450524
Contract Base Rate & Usage Charge
24.99
10/25/2019
0101-41600-61020
INV 1450524
Contract Base Rate & Usage Charge
24.99
10/25/2019
0101-41500-61020
INV 1450524
Contract Base Rate & Usage Charge
63.87
10/25/2019
2210-41600-61020
Check Total:
622.84
Vendor: MNEquiprr
Minnesota Equipment
Check Sequence: 63
ACH Enabled: False
R30670
Parts for Unit 409-589
96.38
10/25/2019
6100-48800-63135
Check Total:
96.38
Vendor: MNS[FrCh
Minnesota State Fire Chiefs Association
Check Sequence: 64
ACH Enabled: False
200004134
Conference Registration - M. Winczewski
365.00
10/25/2019
0101-42200-61315
200004150
Conference Registration - K. McNallan
400.00
10/25/2019
0101-42200-61315
Check Total:
765.00
Vendor: Minutema
Minuteman Press
Check Sequence: 65
ACH Enabled: False
979209
Business Cards for P. Hellegers
87.22
10/25/2019
0101-41500-61005
Check Total:
87.22
Vendor: MRCutEdg
MR Cutting Edge
Check Sequence: 66
ACH Enabled: False
1502
Ice Scraper Blade
55.00
10/25/2019
2130-44300-61020
Check Total:
55.00
Vendor: MTE)ist
MTI Distributing Inc
Check Sequence: 67
ACH Enabled: False
1235271-00
Misc. Supplies
3,830.00
1025/2019
5100-48100-61135
1236926-00
Pulley -Idler for Unit 411-582
142.07
10/25/2019
6100-48800-61115
1237161-00
Misc. Hardware
16.11
10/25/2019
6100-48800-61020
1237161-00
Spacer -Idler for Stock
21.49
10/25/2019
610048800-61115
1237161-01
Hardware
18.65
10/252019
6100-48800-61020
1237371-00
Pulley -Idler & Spacer -Idler for Stock
128.53
10/25/2019
6100-48800-61115
1237974-00
Parts for Unit 416-583
64.63
10/25/2019
6100-48800-61115
Check Total:
4,221.48
Vendor: NMAnCaC
North Metro Animal Care & Control
Check Sequence: 68
ACH Enabled: False
1001
Boarding for Cat & Dog
264.32
10/25/2019
0101-42500-63010
AP -Computer Check Proof List by Vendor (10/25/2619 - 3:44 PM) Page 10
Invoice No Description Amount Payment Date Acct Number Reference
Check Total:
264.32
Check Sequence: 71
Vendor: NoValley North Valley, Inc.
Oil Filters
11.73
10/25/2019
Check Sequence: 69
Return Water Meter Deposit
1,300.00
15.61
10/25/2019
5100-00000-24201
Water Usage
-139.33
23.46
10/25/2019
5100-48100-55110
Meter Rental Fee
-291.00
53.53
10/25/2019
5100-48100-55150
Water Sales Tax
-9.93
25.44
10/25/2019
5100-00000-20301
Check Total:
859.74
5.02
10/25/2019
6100-48800-61115
Vendor: NoSanSup Northern Sanitary Supply
02 Sensor for Unit #77
54.39
10/25/2019
Check Sequence: 70
196661 Tissue, Bath
50.43
55.41
10/25/2019
5100-48100-61005
Check Total:
50.43
-46.72
10/25/2019
610048800-61115
Vendor: OReiAuto
O'Reilly Auto Parts
Check Sequence: 71
3253-441459
Oil Filters
11.73
10/25/2019
6100-48800-61115
3253-441674
Oil Filter
15.61
10/25/2019
6100-48800-61115
3253-441902
Oil Filters
23.46
10/252019
6100-48800-61115
3253-441963
BrakeBest Hardware for Unit #78
53.53
10/25/2019
6100-48800-61115
3253-442156
15A Circuit & Circuit Breaker
25.44
10/25/2019
6100-48800-61020
3253-442918
Thermostat for Unit #77
5.02
10/25/2019
6100-48800-61115
3253-442963
02 Sensor for Unit #77
54.39
10/25/2019
6100-48800-61115
3253-443006
Capsule for Unit #4886
55.41
10/25/2019
6100-48800-61115
3253-443259
Returned Hose Clamps
-46.72
10/25/2019
610048800-61115
3253-444507
Fuel & Oil Filters for Stock
83.49
10/25/2019
6100-48800-61115
3253-444699
Rangurd Beam for Unit #4810
79.90
10/25/2019
6100-48800-61115
3253-444881
Hyd & Oil Filter for Unit #114
10.26
10/25/2019
6100-48800-61115
3253-445044
Wiper Blades for Unit #70
10.18
10/25/2019
6100-48800-61115
Check Total:
381.70
Vendor: OtiDepot
Office Depot
Check Sequence: 72
383436962001
Office Supplies
17.40
10/25/2019
0101-42200-61005
383437723001
Office Supplies
9.09
10/25/2019
0101-42200-61005
383437724001
Office Supplies
37.43
10/25/2019
0101-42200-61005
383653265001
Office Supplies
66.36
10/25/2019
0101-42200-61005
385008875001
CH Office Depot Supplies
12.88
10/25/2019
0101-41600-61005
385008875001
CH Office Depot Supplies
21.46
10/25/2019
0101-42300-61005
385008875001
CH Office Depot Supplies
8.58
10/25/2019
0101-41230-61005
385008875001
CH Office Depot Supplies
12.88
10/25/2019
0101-41200-61005
385008875001
CH Office Depot Supplies
17.16
10/25/2019
0101-41500-61005
385008875001
CH Office Depot Supplies
8.58
10/25/2019
0101-41400-61005
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44P"
ACH Enabled: False
ACH Enabled: False
ACH Enabled: False
ACH Enabled: False
Page 11
Invoice No Description Amount Payment Date Acct Number Reference
385008875001
CH Office Depot Supplies
4.30
10/25/2019
0101-41300-61005
385009464001
Office Chair
359.98
10/25/2019
0101-41930-61020
388137059001
Office Chair
359.98
10/25/2019
0101-41400-61005
388338102001
CC Office Depot Supplies
82.69
10/25/2019
2130-44000-61005
388338102001
CC Office Depot Supplies
82.69
10/25/2019
2130-44300-61005
390379554001
PW Office Depot Supplies
0.98
10/25/2019
010IA3100-61005
390379554001
PW Office Depot Supplies
1.64
10/25/2019
5100-48100-61005
390379554001
PW Office Depot Supplies
0.46
10/25/2019
0101-46000-61005
390379554001
PW Office Depot Supplies
2.29
10/25/2019
0101-45000-61005
390379554001
PW Office Depot Supplies
3.15
10/25/2019
5200-48200-61005
390379554001
PW Office Depot Supplies
0.66
10/25/2019
0101-43200-61005
Check Total:
1,110.64
Vendor: OmannBro
Omann Brothers Paving, Inc.
Check Sequence: 73
ACH Enabled: False
14235
AC Fines Mix
246.12
10/25/2019
0101-43100-61125
Check Total:
246.12
Vendor: Optum
OptumQTR
Check Sequence: 74
ACH Enabled: False
9510028462
20193rd Qtr HSA Fees
438.75
10/25/2019
6200-48900-63005
Check Total:
438.75
Vendor: PionSecu
Pioneer SecureShred
Check Sequence: 75
ACH Enabled: False
38643
On Site City Paper Shredding Event
750.00
10/25/2019
0101-46000-63010
Check Total:
750.00
Vendor: Pirtek
Pirtek
Check Sequence: 76
ACH Enabled: False
53022315.001
Labor for Hydraulic Hose on Unit #124
31.00
10/25/2019
610048800-63135
S3022315.001
Hydraulic Hose for Unit#124
187.01
10/25/2019
6100-48800-61115
Check Total:
218.01
Vendor: Plunkett
PlunketVs Pest Control, Inc.
Check Sequence: 77
ACH Enabled: False
6445152
Pest Control
72.52
10/25/2019
2130-44000-63010
Check Total:
72.52
Vendor: R&RBrake
R & R Suspension
Check Sequence: 78
ACH Enabled: False
7017
Parts to Repair Unit #202
1,360.00
10/25/2019
6100-48800-61115
7017
Labor to Repair Unit #202
575.00
10/25/2019
610048800-63135
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PM) Page 12
Invoice No Description Amount Payment Date Acct Number Reference
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PK Page 13
Check Total:
1,935.00
Vendor: RESPEC
RESPEC
Check Sequence: 79
ACE Enabled: False
INV -1019-008
2019 3rd Qtr Fulcrum Subscription
136.50
10/25/2019
4140-49300-63005
INV -1019-008
2019 3rd Qtr Fulcrum Subscription
133.00
10/25/2019
5100-48100-63005
INV -1019-008
2019 3rd Qtr Fulcrum Subscription
133.00
10/25/2019
5200-48200-63005
INV -1019-008
20193rd Qtr Fulcrum Subscription
133.00
10/25/2019
2250-41600-63005
Check Total:
535.50
Vendor: RossmTM
Thomas & Mary Rossmeisl
Check Sequence: 80
ACH Enabled: False
Escrow
3098 162nd Lane NW
522.34
10/25/2019
7200-00000-24214
Interest
3098162nd Lane NW
0.02
10/25/2019
7200-41400-56910
Check Total:
522.36
Vendor: S&SInd
S & S Industrial Supply
Check Sequence: 81
ACH Enabled: False
306833
Hardware for Signs
283.75
10/25/2019
0101-43300-61030
Check Total:
283.75
Vendor: SafeFast
Safe -Fast, htc.
Check Sequence: 82
ACH Enabled: False
INV222670
Rainwear Jackets & Pants
50.91
10/25/2019
0101-45000-61020
INV222670
Rainwear Jackets & Pants
32.73
10/25/2019
0101-43100-61005
Check Total:
83.64
Vendor: SiteOneL
SiteOne Landscape Supply
Check Sequence: 83
ACH Enabled: False
95173142-001
Triple Weave Pipe Puller
92.15
10/25/2019
0101-45000-61020
Check Total:
92.15
Vendor: StPaulSt
St. Paul Stamp Works, Inc.
Check Sequence: 84
ACH Enabled: False
451960
Stamp Animal Tags
111.30
10/25/2019
0101-42500-61020
Check Total:
111.30
Vendor: SunLifeF
Sun Life Financial
Check Sequence: 85
ACH Enabled: False
238450
November 2019 Premium
162.30
10/25/2019
0101-00000-21217
238450
November 2019 Premium
50.88
10/25/2019
0101-42200-60330
238450
November 2019 Premium
1,600.18
10/25/2019
0101-00000-21205
238450
November 2019 Premium
85.18
10/25/2019
7100-00000-21218
238450
November 2019 Premium
900.30
10/25/2019
0101-00000-21216
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PK Page 13
Invoice No Description Amount Payment Date Acct Number Reference
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PM) Page 14
Check Total:
Vendor:
SuperVis
Superior Vision Insurance
0000327181
November 2019 Premium
PW Veh Maint/Cold Storage/Site WK
Check Total:
Vendor:
Schifsky
T.A. Schifsky & Sons, Inc
65274
M25122
AC Sand Mix
City Council Meeting
M25122
Check Total:
Vendor:
TahoSpl
Taho Sportswear, Inc.
19TS2929
Vendor:
Youth Tees
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PM) Page 14
Check Total:
Vendor:
TelcomCo
TelCom Construction Inc.
AND -001
0101-00000-21205
PW Veh Maint/Cold Storage/Site WK
659.82
Check Total:
Vendor:
Tfi esave
Timesaver
M25122
215.84
City Council Meeting
M25122
0101-43100-61125
Park & Recreation Meeting
10/25/2019
0101-41100-63005
Check Total:
Vendor:
TollbHme
Tollberg Homes LLC
Escrow
961.70
White Pine Wilderness 4th Addition
Escrow
2130-44400-61055
White Pine Wilderness 4th Addition
Escrow
White Pine Wilderness 4th Addition
Interest
Check Sequence: 91
White Pine Wilderness 4th Addition
Interest
2,500.00
White Pine Wilderness 4th Addition
Interest
White Pine Wilderness 4th Addition
422.52
10/25/2019
Check Total:
Vendor:
TCFilter
Twin City Filter Service, Inc.
0666205 -IN
Filters
Check Total:
Vendor:
TCGarage
Twin City Garage Door Co.
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PM) Page 14
Check Sequence: 89
Check Sequence: 86 ACH Enabled: False
185.89
659.82
10/25/2019
0101-00000-21205
185.89
659.82
Check Sequence: 87 ACH Enabled: False
215.84
Check Sequence: 90
10/25/2019
0101-43100-61125
215.84
10/25/2019
0101-41100-63005
145.00
10/25/2019
Check Sequence: 88 ACH Enabled: False
961.70
10/25/2019
2130-44400-61055
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PM) Page 14
Check Sequence: 89
ACH Enabled:
False
659.82
10/25/2019
4303-49300-61020
659.82
Check Sequence: 90
ACH Enabled:
False
180.00
10/25/2019
0101-41100-63005
145.00
10/25/2019
0101-45000-63005
325.00
Check Sequence: 91
ACH Enabled:
False
2,500.00
10/25/2019
7200-00000-24209
422.52
10/25/2019
7200-00000-24202
1,081.22
10/25/2019
7200-00000-24203
0.82
10/25/2019
7200-41400-56910
0.23
10/25/2019
7200-41400-56910
0.22
10/25/2019
7200-41400-56910
4,005.01
Check Sequence: 92
ACH Enabled:
False
3,695.24
10/25/2019
2130-44000-61020
3,695.24
Check Sequence: 93
ACH Enabled:
False
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PM) Page 14
Invoice No
Description
Amount
Payment Date
Acct Number
Reference
Z113776
Repair Garage Door @ Public Works
3,147.00
10/25/2019
0101-41930-63105
Check Total:
3,147.00
Vendor: Uline
Lime
Check Sequence: 94
ACH Enabled: False
112905022
Tools
430.51
10/25/2019
6100-48800-61205
112905022
Blown Wrap & Heavy -Duty Handwrapper
179.51
10/25/2019
610048800-61020
Check Total:
610.02
Vendor: USBankEq
US Bank Equipment Finance
Check Sequence: 95
ACH Enabled: False
397868704
Ricoh Copier Lease @ Public Works
140.50
10/25/2019
010141930-62200
Check Total:
140.50
Vendor: Verizon
Verizon Wireless
Check Sequence: 96
ACH Enabled: False
9840015305
Monthly Cell Phone Service
61.87
10/25/2019
010141200-62030
9840015305
Monthly Cell Phone Service
136.75
10/25/2019
0101-42300-62030
9840015305
Monthly Cell Phone Service
132.05
10/25/2019
213044000-62030
9840015305
Monthly Cell Phone Service
84.26
10/25/2019
010141500-62030
9840015305
Monthly Cell Phone Service
360.76
10/25/2019
0101-41600-62030
9840015305
Monthly Cell Phone Service
56.87
10/25/2019
0101-41400-62030
9840015305
Monthly Cell Phone Service
178.01
10/25/2019
0101-42200-62030
9840015305
Monthly Cell Phone Service
95.88
10/25/2019
010141420-62030
9840015305
Monthly Cell Phone Service
500.18
10/25/2019
0101-45000-62030
9840015305
Monthly Cell Phone Service
94.43
10/25/2019
5200-48200-62030
9840015305
Monthly Cell Phone Service
73.48
10/25/2019
0101-43300-62030
9840015305
Monthly Cell Phone Serviced
259.59
10/25/2019
0101-43100-62030
9840015305
Monthly Cell Phone Service
132.49
10/25/2019
6100-48800-62030
9840015305
Monthly Cell Phone Service
275.73
10/25/2019
5100-48100-62030
9840015305
Monthly Cell Phone Service
50.87
10/25/2019
0101-41910-62030
Check Total:
2,493.22
Vendor: Viklndus
Viking Industrial Center
Check Sequence: 97
ACH Enabled: False
3177905
Leather Drivers Gloves
104.80
10/25/2019
0101-45000-61020
3177905
Leather Drivers Gloves
104.80
10/25/2019
5200-48200-61005
3177905
Leather Drivers Gloves
104.78
10/25/2019
610048800-61020
3177905
Leather Drivers Gloves
104.80
10/25/2019
010143100-61020
Check Total:
419.18
Vendor: VoncoH
Vence II, LLC
Check Sequence: 98
ACH Enabled: False
0000052040
Street Sweeping -
349.32
10/25/2019
0101-43100-63010
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PM) Page 15
Invoice No Description Amount Payment Date Acct Number Reference
0000052155
Stumps & Environmental Fees
Check Total:
Vendor: WPWDevl,
W.P.W. Development Inc.
Escrow
White Pine Wilderness 2nd Addition
Interest
White Pine Wilderness 2nd Addition
7200-00000-24209
Check Total:
Vendor: WnMgmt2
Waste Management - Blaine
8342975-0500-2
PW Garbage Disposal
8342975-0500-2
PW Garbage Disposal
8342975-0500-2
PW Garbage Disposal
Check Total:
Vendor: WruckSew
Wrack Sewer and Portable Rental
3351
Portable Toilet Rental -
3538
Portable Toilet Rental
3538
Portable Toilet Rental
3538
Portable Toilet Rental
3538
Portable Toilet Rental
3538
Portable Toilet Rental
907.44
Check Total:
Vendor: WSB
WSB & Associates, Inc.
R-012615-000-14
Vet Mem Const-Nightgl to Tower
R-013849-000-6
Country Oaks North 4th Addition
R-013884-000-6
Catcher's Greek East
R-014010-000-6
PW Veh Maint/Cold Storage/Site WK
R-014151-000-5
CatchrCrkE/ShadbrkN SS&WM
R-014276-000-4
Shadowbrook North
Check Total
Total for Check Run:
Total of Number of Checks:
AP -Computer Check Proof List by Vendor (10/25/2019 - 3:44 PM)
779.04 10/25/2019 0101-43100-63010
251,037.69
102
Page 16
Check Sequence: 99
ACH Enabled: False
2,500.00
10/25/2019
7200-00000-24209
1.53
10/25/2019
7200-41400-56910
2,501.53
Check Sequence: 100
ACH Enabled: False
598.91
10/25/2019
0101-46000-62020
136.12
1025/2019
0101-45000-62020
172.41
10/25/2019
0101-41930-62020
907.44
Check Sequence: 101
ACH Enabled: False
70.00
10/25/2019
0101-00000-24201
304.00
10/25/2019
0101-00000-24201
521.00
10/252019
0101-00000-24201
50.00
10/25/2019
0101-00000-24201
108.00
10/25/2019
0101-00000-24201
628.00
10/25/2019
0101-45000-63010
1,681.00
Check Sequence: 102
ACH Enabled: False
8,448.50
10/25/2019
4140-49300-63005
158.74
10/25/2019
7200-00000-24203
1,044.00
10/25/2019
7200-00000-24203
2,801.25
10/25/2019
4303-49300-63005
452.00
10/25/2019
4110-49300-63005
339.00
10/25/2019
7200-00000-24203
251,037.69
102
Page 16
Accounts Payable
Computer Check Proof List by Vendor
User: BrendaF
Printed: 10/30/2019 - 11:22AM
Batch: 00428.10.2019
Invoice No Description
Amount Payment Date Acct Number
Vendor: BukkilaS Sheri Bukkila Check Sequence: I
Replace Lost Ck from 12/21/2016, #45433 295.52 10/30/2019 2110-46500-60140
Check Total: 295.52
Total for Check Run: 295.52
Total of Number of Checks: 1
Reference
ACH Enabled: False
AP -Computer Check Proof List by Vendor (10/30/2019 - 11:22 AM) Page 1
Accounts Payable
Computer Check Proof List by Vendor
User: BrendaF
Printed: 10/30/2019 - 2:16PM
Batch: 00429.10.2019
Invoice No Description
�S
Amount Payment Date Acct Number
Vendor: AnkCo03 Anoka Co Check Sequence: 1
Local Government Officials Meeting 10.00 10/30/2019 010141200-61310
Local Govermnent Officials Meeting 20.00 10/30/2019 0101-41100-61310
Check Total: 30.00
Total for Check Run: 30.00
Total of Number of Checks: 1
Reference
ACH Enabled: False
AP -Computer Check Proof List by Vendor (10/30/2019 - 2:16 PM) Page I
Accounts Payable
Computer Check Proof List by Vendor
User: BrendaF
Printed: 10/31/2019 - 30:42AM
Batch: 00406.11.2019
Invoice No Description
Vendor: 292Desig
292 Design Group, Inc.
17102.02-5
Community Center Expansion
Check Total:
Vendor: AAAStrip
AAA Striping Service Co.
106634
2019 Pavement Markings - Final Pyrnt
11,640.58
Check Total:
Vendor: AnkColO
Anoka Co Highway
JPA#C0006346
Hanson Blvd Reconstruction
JPA #C0006346
2018 Seal Coating
Check Total:
Vendor: AnkCol O
Anoka Co Highway
JPA #C0004154
Bunker from Crane to Jefferson
False
Check Total:
Vendor: DavisMec
Davis Mechanical Systems
Pymt #3 - 22A
PW Veh Maint/Cold Stomge/Site Wk
2,670.92
Check Total
Vendor: DesEarth
Designing Earth Contracting
Pymt #2-31A&33A
Community Center Expansion
Check Total:
Vendor: DesEarth
Designing Earth Contracting
Payment #5
Vet Mem Const-Nightgl to Tower
AP -Computer Check Proof List by Vendor (10/31/2019 - 10:42 AM)
?CN 6WR
,,d�; I
Amount
Payment Date
Acct Number
Reference
Check Sequence: 1
ACH Enabled:
False
11,640.58
11/06/2019
4403-49300-63005
11,640.58
Check Sequence: 2
ACH Enabled:
False
2,670.92
11/06/2019
4140-49300-63010
2,670.92
Check Sequence: 3
ACH Enabled:
False
178,230.17
11/06/2019
4140-49300-63010
127,174.00
11/06/2019
4120-49300-63010
305,404.17
Check Sequence: 4
ACH Enabled:
False
116,820.05
11/06/2019
4140-49300-63010
116,820.05
Check Sequence: 5
ACH Enabled:
False
80,635.05
11/06/2019
4303-49300-63010
80,635.05
Check Sequence: 6
ACH Enabled:
False
142,500.00
11/06/2019
4403-49300-63010
142,500.00
Check Sequence: 7
ACH Enabled:
False
159,555.22
11/06/2019
4140-49300-63010
Page I
Invoice No Description Amount Payment Date Acct Number Reference
Check Total:
159,555.22
Vendor: EbertCon
Ebert Construction
Check Sequence: 8
ACH Enabled: False
Pymt #5 - 6A
PW Veh Mamt/Cold Storage/Site Wk
3,217.17
11/06/2019
4303-49300-63010
Check Total:
3,217.17
Vendor: EbertCon
Ebert Construction
Check Sequence: 9
ACH Enabled: False
Pymt #1 - 2A
Community Center Expansion
1,844.90
11/06/2019
4403-49300-63010
Check Total:
1,844.90
Vendor: EmRespSo
Emergency Response Solutions
Check Sequence: 10
ACH Enabled: False
13909
Gear Uniforms
13,374.28
11/06/2019
0101-42200-61305
Check Total:
13,374.28
Vendor: EricElec
Erickson Electric Company, me.
Check Sequence: 11
ACH Enabled: False
Pymt #3 - 26A
PW Veh Maint/Cold Storage/Site Wk
61,275.00
11/06/2019
4303-49300-63010
Check Total:
61,275.00
Vendor: KeuchUnd
Keuchle Underground, Inc.
Check Sequence: 12
ACH Enabled: False
Final Pymt#5
2019 Street Reconstruction
62,332.12
11/06/2019
4140-49300-63010
Check Total:
62,332.12
Vendor: KMHErctr
KMH Erectors, Inc,
Check Sequence: 13
ACH Enabled: False
Pymt #2 - 5B
PW Veh Maint/Cold Storage/Site Wk
45,277.00
11/06/2019
4303-49300-63010
Check Total:
45,277.00
Vendor: LakeArea
Lake Area Roofing & Construction, Inc.
Check Sequence: 14
ACH Enabled: False
Pymt#2-7B
PW Veh Maint/Cold Storage/Site Wk
224,154.40
11/06/2019
4303-49300-63010
Check Total:
224,154.40
Vendor: ModElect
Modem Electrical Solutions, Inc.
Check Sequence: 15
ACH Enabled: False
Pymt #3 - 26A
Community Center Expansion
39,425.00
11/06/2019
4403-49300-63010
Check Total:
39,425.00
Vendor: MolmCon
Moa Concrete Products Co.
Check Sequence: 16
ACH Enabled: False
Pymt #3 - 3B
PW Veh Maint/Cold Storage/Site Wk
137,485.33
11/06/2019
4303-49300-63010
AP -Computer Check Proof List by Vendor (10/31/2019 - 10:42 AM)
Page 2
Invoice No Description Amount Payment Date Acct Number Reference
AP -Computer Check Proof List by Vendor (10/31/2019 - 10:42 AM)
137,485.33
Check Total:
Vendor: NoCounCo
North Country Concrete, In
Pymt #1 - 32B
Community Center Expansion
19,015.67
Check Total:
Vendor: NorthPav
Northland Paving, LLC
Pymt #1 - 32A
Community Center Expansion
Check Total:
Vendor: PrescrLa
Prescription Landscape Inc.
Pymt #1 - 32D
PW Veh Maint/Cold Storage/Site Wk
Check Total:
Vendor: RiMechan
RJ Mechanical, Inc.
Pymt #4 - 23A
PW Veh Maint/Cold Storage/Site Wk
Check Total:
Vendor: RiM
RiM Construction LLC
Payment #3
Community Center Expansion
Check Total:
Vendor: RIM
RJM Construction LLC
Payment #6
PW Veh Maint/Cold Stomge/Site Wk
Check Total:
Vendor: SteenWat
Steenberg-Watnrd Construction
Pymt#2-4A
PW Veh Maint/Cold Storage/Site Wk
Check Total:
Vendor: WellsCon
Wells Concrete
Pymt #1 - 3B
Community Center Expansion
Check Total
AP -Computer Check Proof List by Vendor (10/31/2019 - 10:42 AM)
137,485.33
Check Sequence: 17
19,015.67
11/06/2019 4403-49300-63010
19,015.67
Check Sequence: 18
121,006.25
11/06/2019 4403-49300-63010
28,975.00
28,975.00
11,780.00
11,780.00
75,917.07
75,917.07
51,944.46
51,944.46
11,257.50
11,257.50
28,642.90
28,642.90
Check Sequence: 19
11/06/2019 4303-49300-63010
Check Sequence: 20
11/06/2019 4303-49300-63010
Check Sequence: 21
11/06/2019 440349300-63010
Check Sequence: 22
11/06/2019 4303-49300-63010
Check Sequence: 23
11/06/2019 4303-49300-63010
Check Sequence: 24
11/06/2019 4403-49300-63010
ACH Enabled: False
ACH Enabled: False
ACH Enabled: False
ACH Enabled: False
ACH Enabled: False
ACH Enabled: False
ACH Enabled: False
ACH Enabled: False
Page 3
Invoice No Description
Total for Check Run:
Total of Number of Checks:
Amount Payment Date Acct Number
1,756,150.04
24
Reference
AP -Computer Check Proof List by Vendor (10/31/2019 - 10:42 AW Page 4
1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755-5100
FAX (763) 755-8923 • WWW.CI.ANDOVER.MN.US
TO: Mayor and Councilmembers
CC: James Dickinson City Administrator
FROM: Dana Makinen, Human Resources Manager
SUBJECT: Accept Resignation of Taylor Moshier, Streets Maintenance Worker
DATE: November 6, 2019
0
INTRODUCTION
This item is to acknowledge the resignation of Taylor Moshier, Streets Maintenance Worker.
DISCUSSION
Taylor Moshier has been offered a position with the City of Blaine and has accepted it. His last
day with the City of Andover will be November 15, 2019. Taylor has worked for the City of
Andover since May 2017.
In August the City of Andover hired a temporary employee, Luke Virchow, to cover while
another employee was on military leave. With Taylor leaving, we will now hire Luke as a
permanent employee.
BUDGETIMPACT
None. This was already identified in the 2019 Budget.
ACTION REQUESTED
The City Council is requested to acknowledge the resignation of Taylor Moshier and acknowledge
the change of Luke Virchow from temporary employee to permanent employee.
Respectfully submitted,
Dana Makinen
)oV
1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755-5100
FAX (763) 755-8923 • WWW.CI.ANDOVER.MN.US
TO:
CC:
FROM:
SUBJECT:
DATE:
Mayor and Councilmembers
James Dickinson, City
Dana Makinen, Human Resources
Approve Appointment — Building Inspector
November 6, 2019
0
INTRODUCTION
To ensure future consistency and succession planning, due to possible retirements and leave requests, the
position of Building Inspector was open. The Human Resources Department has completed the interview,
background check and selection process to fill this position.
Human Resources and City Administrator recommend hiring Joe Heidelberger. Mr. Heidelberger has 24
years of broad construction experience and worked as an intern with the City of Andover in 2018. Since
Mr. Heidelberger's internship he has been working for the City of Chanhassen as a Building Inspector.
Mr. Heidelberger is a licensed Building Official, who also has his Subsurface Sewage Treatment Systems
license from the Minnesota Pollution Control Agency.
BUDGET IMPACT
Mr. Heidelberger has been offered $69,167 annually, which is the 2019 Step Level 3, and then would be
eligible for any general increases and annual Step Increases after successful completion of his 6 -month
probationary period.
ACTION REQUESTED
The Council is requested to appoint Joe Heidelberger as the new Building Inspector.
Respectfully submitted,
Dana Makinen
1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755-5100
FAX (763) 755-8923 • WWW.CI.ANDOVER.MN.US
TO: Mayor and Councilmembers
CC: Jim Dickinson, City Administra
FROM: Dana Makinen, Human Resources Man
SUBJECT: Approve Dental Renewal and Employer Contribution
DATE: November 6, 2019
5.
The current City of Andover sponsored employee dental policy contract term expires December 31, 2019.
The Human Resources Department has worked with the City's broker North Risk Partners to seek either a
contract renewal with the current providers or marketing to other insurance providers to provide a quality,
yet affordable employee dental insurance plan. The resulting recommendation is provided below.
DISCUSSION
The employee dental plan proposed is with Health Partners Dental, our current carrier but it is designed to
offer comprehensive benefits within a competitive cost framework. Renewal rates are as listed:
Current Renewal
Rate Rate (3.8% increase)
Single $42.32 $43.95
Single+ 1 $89.19 $92.61
Family $140.22 $145.60
Based on the renewal, Human Resources is recommending that the City Council continue covering 100%
of a single dental premium and increase the City's contribution to $44 per month employer contribution to
a family premium.
BUDGETIMPACT
Funding for Dental Insurance would be provided for in the 2020 City Budget. Through the 2020 budget
process a 5% dental insurance increase was forecasted, the proposed program is below that forecast with
an actual increase of approximately 3.8% (based on current enrollment), however the City Contribution is
only increasing by $1.00 per employee resulting in approximately 2% increase.
ACTION REQUIRED
The Andover City Council is requested to approve the dental insurance proposal. The Council is also
requested to approve the employer contribution increase by covering 100% of a single dental premium
and increase the City's contribution to $44.00 per month employer contribution to a family premium
Respectfully submitted, /
Dana Makinen
C I T Y O F I/1
NDOVE tttlll/// '
1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755-5100
FAX (763) 755-8923 • WWW.CI.ANDOVER.MN.US
TO: Mayor and Councilmembers
CC: James Dickinson, City Admini
FROM: Dana Makinen, Human Resources
SUBJECT: Approve Health Insurance Contract and Employer Contribution
DATE: November 6, 2019
The current City sponsored employee health insurance policy contract expires December 31, 2019.
Administration, Finance and Human Resources departments have worked with the City's broker, North
Risk Partners, to seek either a contract renewal with the current provider, Health Partners, or market to
other insurance providers to provide a quality, yet affordable employee health insurance plan. The resulting
recommendation is provided below.
Since 2006 the City has offered a High Deductible Health Plan with a Health Savings Account (HSA) for
the employee health insurance program. This has allowed employees to have more control over their own
healthcare (Consumer Driven Healthcare), which is consistent with current marketplace trends. Due to
increases in the proposed 2020 renewal rates (29%), Administration has explored many different options
and strategies for the 2020 employee health insurance plan.
After much review and taking into consideration employee feedback, Administration is still recommending
staying with the Health Partners Open Access program. The existing two HSA plans with varying
deductibles will be eliminated and only one HSA plan with higher deductibles ($6,900 single and $13,800
family) and stacked with an HRA (Health Reimbursement Arrangement) will be offered for 2020. The
HRA will be funded utilizing premium savings that can be achieved from the proposed renewal to a new
higher deductible plan. Employees will have $3,500 single and $7,000 family deductibles; but with the
stacked HRA, the City will reimburse the reminder of the deductible, if needed, to the provider up to $3,400
for single and $6,800 for family. Current and proposed rates are as follows:
Current - HSA Plans
Single Family
Plan 1
Renewal - HSA/HRA Plan
Single Family
Deductible
$
3,500
$
7,000
$ 6,900 $ 13,800
Premium
$
555.80
$
1,445.02
$ 621.06 $ 1,614.69
11.74% 11.74%
F
Plan 2 (Buy -Up)
increase
Deductible
$
2,500
$
5,000
Premium
$
612.43
$
1,592.25
Based on past City practices and labor agreements, Administration is then recommending the City Council
continue covering 100% of a single employee health premium and 76% of the family premium ($1,227.17
per month). The City will continue to partially fund the employee HSA at the same level as 2019. In
addition, as in the past, if an employee opts out of the health insurance program, the City will provide an
in -lieu payment to the employee of $165.00 per month in taxable income.
BUDGETIMPACT
Funding for health insurance and HSA is provided for in the proposed 2020 City Budget as a significant
increase was forecasted through the 2020 budget development process. The recommended proposal reflects
a 9.4% increase for health insurance and HSA contribution for the City which is within the 2020 forecasted
increase. Funding for the HRA will come from the savings of moving to a higher deductible plan and will
be managed through the City's Risk Management Internal Service Fund. The proposed 2020 City Budget
will be adjusted accordingly.
ACTION REOUMED
The Andover City Council is requested to approve the Health Partners Open Access insurance renewal and
corresponding employer contributions.
Respectfully submitted,
Dana Makinen
1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755-5100
FAX (763) 755-8923 • WWW.ANDOVERMN.GOV
TO:
FROM:
SUBJECT:
DATE:
Mayor and Councilmembers
Jim Dickinson, City Administrator
Approve LMCIT Liability Coverage
November 6, 2019
INTRODUCTION
The League of Minnesota Cities Insurance Trust (LMCIT) requests that participating cities
annually decide whether or not to waive the statutory tort liability limits established by Minnesota
6. M-sTx1z1
DISCUSSION
Attached is the "LMCIT Liability Coverage — Waiver Form" provided by the LMCIT, which
provides a description of the options available to the City of Andover. Currently the City of
Andover DOES NOT WAIVE the monetary limits on municipal tort liability established by
Minnesota Statutes 466.04. Finance is recommending continuing with past practice.
BUDGETIMPACT
No budget impact if the City does not waive limits.
ACTION REQUESTED
The Andover City Council is requested to not waive the monetary limits on tort liability
established by Minnesota Statutes 466.04.
LMC
LEAGUE of
MINNESOTA
CITIES
LIABILITY COVERAGE — WAIVER FORM
Members who obtain liability coverage through the League of Minnesota Cities Insurance Trust
(LMCIT) must complete and return this form to LMCIT before the member's effective date of
coverage. Return completed form to your underwriter or email to pstechnu lmc.orE.
The decision to waive or not waive the statutory tort limits must be made annually by the
member's governing body, in consultation with its attorney if necessary.
Members who obtain liability coverage from LMCIT must decide whether to waive the statutory tort
liability limits to the extent of the coverage purchased. The decision has the following effects:
• If the member does not waive the statutory tort limits, an individual claimant could recover no more
than $500,000 on any claim to which the statutory tort limits apply. The total all claimants could
recover for a single occurrence to which the statutory tort limits apply would be limited to $1,500,000.
These statutory tort limits would apply regardless of whether the member purchases the optional
LMCIT excess liability coverage.
If the member waives the statutory tort limits and does not purchase excess liability coverage, a single
claimant could recover up to $2,000,000 for a single occurrence (under the waive option, the tort cap
liability limits are only waived to the extent of the member's liability coverage limits, and the LMCIT
per occurrence limit is $2,000,000). The total all claimants could recover for a single occurrence to
which the statutory tort limits apply would also be limited to $2,000,000, regardless of the number of
claimants.
• If the member waives the statutory tort limits and purchases excess liability coverage, a single claimant
could potentially recover an amount up to the limit of the coverage purchased. The total all claimants
could recover for a single occurrence to which the statutory tort limits apply would also be limited to
the amount of coverage purchased, regardless of the number of claimants.
Claims to which the statutory municipal tort limits do not apply are not affected by this decision.
LEAGUE OF MINNESOTA CITIES 145 University Avenue West PH: (651) 281-1200 FX: (651) 281-1298
INSURANCE TRUST St. Paul, Minnesota 55103 TF: (800) 925-1122 www.imc.org
LMCIT Member Name:
Check one:
❑ The member DOES NOT WAIVE the monetary limits on municipal tort liability established by Minn.
Stat. & 466.04.
F]The member WAIVES the monetary limits on municipal tort liability established by Minn. Stat. &
466.04, to the extent of the limits of the liability coverage obtained from LMCIT.
Date of member's governing body meeting:
Position:
2
1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755-5100
FAX (763) 755-8923 • WWW.CI.ANDOVER.MN.US
TO:
CC:
FROM:
SUBJECT:
DATE:
Mayor and Councilmembers
Jim Dickinson, City
Lee Brezinka, Finance Manager
Reimbursement Resolution / 2020 Equipment Purchases
November 6, 2019
The Andover City Council is requested to approve the reimbursement resolution to provide reimbursement for the
equipment purchases approved through the 2020 - 2024 City of Andover Capital Improvement Plan (CIP) and the
annual budget process.
The Andover City Council, as part of the October 15, 2019 Council meeting, officially adopting the 2020 - 2024
Capital Improvement Plan and on December 17, 2019 will officially adopt the 2020 Annual Operating Budget
that included $1,300,000 for General Obligation Equipment Notes planned for purchasing Public Safety and
Public Works equipment (see Exhibit A). Equipment funded by other sources include: turnout gear, information
technology equipment and lift station improvements.
BUDGETIMPACT
The equipment purchases were part of the 2020 - 2024 Capital Improvement Plan and budgeted in the 2020
Operating Budget.
The City Council is requested to approve the attached resolution providing for reimbursement of the equipment
purchases. The City Council is also requested to authorize staff to start the procurement process for acquiring the
equipment.
Respectfully submitted,
�L ��.
Lee Brezinka
Attachments: Reimbursement Resolution
Exhibit A
CITY OF ANDOVER
COUNTY OF ANOKA
STATE OF MINNESOTA
RES. NO.
MOTION by Councilmember to adopt the following
A RESOLUTION RELATING TO FINANCING OF CERTAIN PROPOSED PROJECTS TO BE
UNDERTAKEN BY THE CITY OF ANDOVER ESTABLISHING COMPLIANCE WITH REIMBURSEMENT
BOND REGULATIONS UNDER THE INTERNAL REVENUE CODE.
WHEREAS, the Internal Revenue Service has issued Section 1.103-18 of the Income Tax
Regulations (the "Regulations') dealing with the issuance of bonds, all or a portion of the proceeds of which
are to be used to reimburse the City for project expenditures made by the City prior to the time of the
issuance of the bonds; and
WHEREAS, the Regulations generally require that the City make a prior declaration of its official
intent to reimburse itself for such prior expenditures out of the proceeds of a subsequently issued
borrowing, that the borrowing occur and the reimbursement allocation be made from the proceeds of such
borrowing within one year of the payment of the expenditure or, if longer, within one year of the date the
project is placed in service, and that the expenditure be a capital expenditure; and
WHEREAS, the City desires to comply with requirements of the Regulations with respect to certain
projects hereinafter identified;
NOW THEREFORE BE IT RESOLVED that the City of Andover, Minnesota adopts a "declaration
of official intent" pursuant to Section 1.103-18 of the Regulations.
1. Official Intent Declaration
(a) The City proposes to undertake the following projects described on Exhibit A attached
hereto.
(b) Other than (i) expenditures to be paid or reimbursed from sources other than a borrowing
or (ii) expenditures permitted to be reimbursed pursuant to the transition provision of
Section 1.103-18(1)(2) of the Regulations or (iii) expenditures constituting preliminary
expenditures as defined in Section 1.103(1)(2) of the Regulations, no expenditures for the
foregoing projects as identified on Exhibit A have heretofore been made by the City and
no expenditures will be made by the City until after the date of this Resolution.
(c) The City reasonably expects to reimburse the City expenditures made for costs of
designated projects out of the proceeds of debt (the "Bonds") to be incurred by the City
after the date of payment of all or a portion of the costs. All reimbursed expenditures shall
be capital expenditures as defined in Section 1.150-1(h) of the Regulations.
(d) This declaration is a declaration of official intent adopted pursuant to Section 1.103-18
of the Regulations.
2. Budgetary Matters. As of the date hereof, there are no City funds reserved, allocated on a long-
term basis or otherwise, set aside (or reasonably expected to be reserved, allocated on a long-
term bases or otherwise set aside) to provide permanent financing for the expenditures related
to the projects, other than pursuant to the issuance of the Bonds. This resolution, therefore, is
determined to be consistent with the City's budgetary and financial circumstances as they exist
or are reasonably foreseeable on the date hereof, all within the meaning and content of the
Regulations.
3. Filing. This resolution shall be filed within 30 days of its adoption in the publicly available official
books and records of the City. This resolution shall be available for inspection at the office of
the City Clerk at the City Hall (which is the main administrative office of the City) during normal
business hours of the City on every business day until the date of issuance of the Bonds.
4. Reimbursement Allocations. The City's financial officer shall be responsible for making the
"reimbursement allocations" described in the Regulations, being generally the transfer of the
appropriate amount of proceeds of the Bonds to reimburse the source of temporary financing
used by the City to make payment of the prior costs of the projects. Each allocation shall be
evidenced by an entry on the official books and records of the City maintained for the Bonds,
shall specifically identify the actual prior expenditure being reimbursed or, in the case
reimbursement of a fund or account in accordance with Section 1.103-18, the fund or account
from which the expenditure was paid, and shall be effective to relieve the proceeds of the Bonds
from any restriction under the bond resolution or other relevant legal documents for the Bonds,
and under any applicable state statute, which would apply to the unspent proceeds of the Bonds.
MOTION seconded by Councilmember and adopted by the City Council of the City of Andover
on this day of with Councilmembers voting in favor
of the resolution, and Councilmembers
passed.
ATTEST:
Michelle Hartner — Deputy City
voting against, whereupon said resolution was
CITY OF ANDOVER
Julie Trude - Mayor
CITY OF ANDOVER
Description
Equipment Note Funded Items:
Replacement - 3/4 Ton Truck #12
Replacement - Engine 21 #4884
Replacement - SCBA Compressor
Replacement - Water Tanker 4161
New - Large Capacity Mower
Replacement - Front End Loader 4124
Replacement - One Ton Truck w/ Plow #133
New - Slide In Hotbox
Total Equipment Note
Equipment Funded by Other Sources:
Replacement - Turnout Gear
Replacement - 800 MHz radios
Windows Server 2019 DataCenter Licenses
Aruba Switch Upgrade
Lift Station Improvements
Total Other Equipment
Total Equipment
$ 30,000
510,000
65,000
175,000
110,000
275,000
80,000
19,000
$ 1,264,000
$ 23,000
General Fund
46,000
Capital Equipment Reserve
12,000
Capital Equipment Reserve
10,000
Capital Equipment Reserve
90,000
Sanitary Sewer Fund
$ 181,000
$ 1,445,000
Exhibit A
1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755-5100
FAX (763) 755-8923 • WWW.ANDOVERMN.GOV
TO: Mayor and City Councilmembers
CC: Jim Dickinson, City Administrator
FROM: Joe Janish, Community Development Doctor
SUBJECT: Approve License Agreement with Anoka County/Monument Sign - Planning
DATE: November 6, 2019
INTRODUCTION
The City Council is requested to approve the license agreement with Anoka County for the
proposed Monument Sign at 133`d Avenue and Hanson Blvd.
DISCUSSION
This license agreement will allow for placement of the sign as discussed and approved by the
Andover EDA.
ACTION REQUESTED
The City Council is requested to approve the license agreement with Anoka County for the
proposed Monument Sign at 133`d Avenue and Hanson Blvd.
pJani lly-�ubmjtted,
Joe sh
Andover Community Development Director
Anoka County Contract No. C0007634
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is made and entered into this _ day of
2019, by and between the County of Anoka, a political subdivision of the State of Minnesota,
2100 Third Avenue, Anoka, Minnesota 55303, hereinafter referred to as the "Licensor," and the
City of Andover, a Minnesota municipal corporation, 1685 Crosstown Boulevard Northwest,
Andover, Minnesota 55304, hereinafter referred to as the "Licensee."
WHEREAS, the Licensor owns right-of-way located at the northwest corner of Hanson
Boulevard NW and 133rd Ave. as depicted in Exhibit A, which is attached hereto and
incorporated herein ("County Property"); and
WHEREAS, Licensee desires to place a monument sign on the County Property, which
sign is more particularly described in Exhibit B, which is attached hereto and incorporated
herein ("Improvements'); and
WHEREAS, Licensee has requested and the Licensor has agreed to permit the
Improvements on the County Property pursuant terms and conditions contained here.
NOW, THEREFORE, in consideration of the mutual covenants and agreements stated
herein, the parties agree as follows:
GRANT OF LICENSE
The Licensor hereby grants to Licensee a license to install, construct, maintain, replace,
and repair the Improvements on the County Property at the location depicted in Exhibit A.
II. LIMITATIONS OF LICENSE
Licensor grants this License for the sole purpose of allowing the existence of the
Improvements and Licensee's right to construct, install, maintain, replace and repair said
Improvements on the County Property as provided herein. Licensee's placement of the
Improvements will be in the approximate location depicted in Exhibit A. Licensor must ensure
that the Improvements do not obstruct or impair traffic sightlines at the intersection.
III. MAINTENANCE AND PAYMENT OF COSTS
The Licensee shall be solely responsible for and pay for all costs associated with the
construction, installation, maintenance, replacement, repair and/or removal of the Improvements
on the County Property. After the construction and installation of the Improvements, the
Licensee shall restore the topographic grade of the County Property to the grade elevation that
existed prior to said construction and installation.
IV. REMOVAL OF IMPROVEMENTS
At such time as the County Property may need to be used to construct improvements to
Hanson Boulevard Northwest, and upon not less than 90 days' written request of the Licensor,
Licensee shall at its sole cost, remove the Improvements and restore the County Property to the
condition it was in prior to the grant of this License.
V. INDEMNIFICATION
Subject to the liability limits set forth in Minn. Stat. Chapter 466, the Licensee agrees to
and shall hold harmless the Licensor, its commissioners, officers, agents, and employees from
any and all liability and claims therefore concerning (including attorneys' fees), related to or
resulting from the use of County Property for the purposes permitted herein.
VI. COMPLIANCE WITH LAW
Licensee agrees to comply with all applicable federal, state and local law ordinances, or
any rules, regulations or standards of any agency of such governmental entity, which are
applicable to the use of the County Property as provided for herein.
VII. ENTIRE AGREEMENT
It is understood and agreed by the parties that the entire agreement of the parties is
contained herein and that this license agreement supersedes all oral agreements and
negotiations between the parties relating to the subject matter hereof as well as any previous
agreements presently in effect between the County and Owners relating to the subject matter
hereof.
VII. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each one of which
shall be deemed to be an original, but all such counterparts together shall constitute one and
the same instrument.
(Signature pages follows)
-2-
IN WITNESS WHEREOF, the parties hereto have set their hands on the date so
indicated.
COUNTY OF ANOKA CITY OF ANDOVER
0
M
Scott Schulte, Chair
Anoka County Board of Commissioners Its:
Dated:
Bv:
Rhonda Sivarajah
County Administrator
Dated:
APPROVED AS TO FORM
M
Christine Carney
Assistant County Attorney
Dated:
-3-
Dated:
By:
Its: _
Dated:
T 1 •1 1
.` .y .
4 .'
e _� .�
[ ..
'�` P. `'
�. .
',�.: �.
1 •'�
• �V
�! ,�% �, .
E3 3
Exhibit B
165.75"
34" 132"
«— s•
\VIi1XOMF TO
a NDOV 1 R 36"
I 55.
a
e
45.5"
Stone not an actual representation of size CUSTOMER APPROVAL X
185.5"
DATE: 10.4.19
These plans are the exclusive property of DeMars Signs Inc. and are the result of the
SALESMAN: SCOtt Madel
original work of its employees. They are submitted to your firm for the sole purpose of
your approval, assuming the signage will be manufactured by DeMars Signs Inc
41o93�Ave.""
LocanoN Andover
Artwork and design may not be distributed outside your firm without written consent
Coon Rapids, MN 55432
from DeMars Signs Inc. Use of this artwork and/or design without written consent is
SEL Barrington
prohibited; DeMars Signs Inc reserves the right to pursue legal action in violation of
763.786.5545
Noyes -
this agreement. This may include, but is not limited to a) Reimbursement for creating
above drawing. b) Any associated legal fees.
Stone not an actual representation of size CUSTOMER APPROVAL X
C I T Y O F __( D16.ND0VE
1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304
FAX (763) 755-8923 • WWW.ANDOVERMN.GOV
TO: Mayor and Council Members
FROM: Jim Dickinson, City Administrator
(76 3) 755-5100
SUBJECT: Public Hearing on the Issuance and Sale of a Revenue Note for the YMCA of the
Greater Twin Cities/Conduit Financing for Andover YMCA Project
DATE: November 6, 2019
The City Council is requested to hold a public hearing and consider approving the attached
resolution approving the issuance of a recreational facility note and authorizing the execution of
documents relating thereto (YMCA of the Greater Twin Cities Project).
Along with City Administration, representatives will be present from the YMCA of the Greater
Twin Cities and the City's Bond Council Briggs & Morgan to answer questions.
The Council is to give all persons who appear at the hearing an opportunity to express their views
with respect to the proposal that the City issue a conduit revenue note to finance the costs of the
construction, expansion, renovation, and equipping of the YMCA of the Greater Twin Cities
portion of the City's community center and certain other costs related to that Project. The Project
will be owned by the City, leased to the YMCA and is located at 13200 Hanson Blvd. NW within
the City.
The maximum principal amount of the Note to be issued to finance the Project is $6,650,000. The
Note, as and when issued, will not constitute a charge, lien, or encumbrance upon any property of
the City. The Note will be paid by revenues to be derived from the YMCA of the Greater Twin
Cities. Such Note will not be a charge against the City's general credit or taxing powers but will
be payable only from sums to be paid by the YMCA pursuant to the attached financing agreement.
BUDGETIMPACT
The proceeds will facilitate the YMCA's Andover YMCA Community Center Expansion Project.
The City will receive a .25% fee for the issuance.
Respectfully submitted,
Jim Dickinson
Attachments: -Resolution approving the issuance of a recreational facility note and authorizing
the execution of documents relating thereto
-Financing Agreement
-Continuing Covenant Agreement
Extract of Minutes of a Meeting of the
City Council of the City of Andover
Pursuant to due call and notice thereof, a regular meeting of the City Council of the City
of Andover was duly held in the City of Andover, Minnesota, on Wednesday, November 6, 2019,
at 7:00 o'clock P.M.
The following members were present:
and the following were absent:
During said meeting introduced the following resolution and moved its
adoption:
RESOLUTION NO.
RESOLUTION APPROVING THE ISSUANCE AND SALE OF A
RECREATIONAL FACILITY REVENUE NOTE AND AUTHORIZING
THE EXECUTION OF DOCUMENTS RELATING THERETO
(YMCA OF THE GREATER TWIN CITIES PROJECT)
WHEREAS,
(a) The purpose of Minnesota Statutes, Sections 469.152 to 469.165, as
amended (the "Act"), as found and determined by the legislature, is to promote the welfare of the
state by the active attraction and encouragement and development of economically sound industry
and commerce to prevent so far as possible the emergence of obligated and marginal lands and
areas of chronic unemployment;
(b) The City of Andover, Minnesota (the "City") desires to facilitate the
selective development of the community, retain and improve the tax base and help to provide the
range of services and employment opporamities required by the population, including recreational
opportunities; and the Project, as defined below, will assist the City in achieving those objectives
and will enhance the image and reputation of the community;
(c) Young Men's Christian Association of the Greater Twin Cities, a Minnesota
nonprofit corporation (the "Borrower"), and an organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended (the "Code"), has proposed that the City undertake a
program to finance the Project through the issuance of revenue notes or other obligations, in one
or more series (the "Note"), pursuant to the Act and in an aggregate principal amount not to exceed
$6,650,000;
12124540x2
(d) The "Project" consists of: (i) financing, in part, the construction, expansion,
renovation, and equipping of the Borrower's portion of the City's community center, located at
13200 Hanson Blvd. NW in the City, and (ii) financing the costs of issuing the Note. The Project
is owned by the City and leased to, and operated and managed by, the Borrower;
(e) The City has been advised by representatives of the Borrower that
conventional, commercial financing to pay the capital cost of the Project is available only on a
limited basis and at such high costs of borrowing that the economic feasibility of operating the
Project would be significantly reduced;
(f) Based on representations of the Borrower, no public official of the City has
either a direct or indirect financial interest in the Project nor will any public official either directly
or indirectly benefit financially from the Project;
(g) The Note, as and when issued, will not constitute a charge, lien or
encumbrance upon any property of the City and will not be a charge against the general credit or
taxing powers of the City;
(h) As required by the Act and Section 147(f) of the Code, a notice of public
hearing was published in the City's official newspaper and newspaper of general circulation, for a
public hearing on the proposed issuance of the Note by the City and the proposal of the Borrower
to undertake and finance the Project;
(i) As required by the Act and Section 147(f) of the Code, the City Council has
on this same date held a public hearing on the issuance of the Note by the City and the proposal
by the Borrower to undertake and finance the Project, at which hearing all those appearing who
desired to speak were heard and written comments were accepted; and
BE IT RESOLVED by the City Council of the City of Andover, Minnesota (the "City"),
as follows:
SECTION 1. LEGAL AUTHORIZATION AND FINDINGS.
1.1 Findings. The City hereby finds, determines and declares as follows
(a) The City is a municipal corporation and a political subdivision of the State
of Minnesota and is authorized under the Act to assist the project referred to herein, and to
issue and sell the Note for the purpose, in the manner, and upon the terms and conditions
set forth in the Act and in this Resolution.
(b) The issuance and sale of the Note by the City, pursuant to the Act, is in the
best interest of the City, and the City hereby determines to issue the Note and to sell the
Note to PNC Bank, National Association, Milwaukee, Wisconsin (the "Lender"). The City
will loan the proceeds of the Note (the "Loan") to the Borrower in order to finance the
Project.
(c) Pursuant to a Financing Agreement (the "Financing Agreement") to be
entered into between the City, the Borrower, and the Lender, the Borrower has agreed to
2
12124540x2
repay the Note in specified amounts and at specified times sufficient to pay in full when
due the principal of, premium, if any, and interest on the Note. In addition, the Financing
Agreement contains provisions relating to the maintenance and operation of the Project,
indemnification, insurance, and other agreements and covenants which are required or
permitted by the Act and which the City and the Borrower deem necessary or desirable for
their financing of the Project. A draft of the Financing Agreement has been submitted to
the City Council.
(d) Pursuant to the Financing Agreement, the City has pledged and granted a
security interest in all of its rights, title, and interest in the Financing Agreement to the
Lender (except for certain rights of indemnification and to reimbursement for certain costs
and expenses).
(e) Payments due under the Financing Agreement and Note shall also be
secured pursuant to a Continuing Covenant Agreement given between the Borrower and
the Lender. A draft of the Continuing Covenant Agreement has been submitted to the City
Council.
(f) The Note will be a special, limited obligation of the City. The Note shall
not be payable from or charged upon any funds other than the revenues pledged to the
payment thereof, nor shall the City be subject to any liability thereon. No holder of the
Note shall ever have the right to compel any exercise of the taxing power of the City to pay
the Note or the interest thereon, nor to enforce payment thereof against any property of the
City. The Note shall not constitute a debt of the City within the meaning of any
constitutional or statutory limitation.
(g) On the basis of information available to the City it appears, and the City
hereby finds, that the Project constitutes properties, real and personal, used or useful in
connection with a recreational and social services facility within the meaning of the Act;
that the Project furthers the purposes stated in the Act; that the availability of the financing
under the Act and the willingness of the City to furnish such financing will be a substantial
inducement to the Borrower to undertake the Project, and that the effect of the Project, if
undertaken, will be to assist in the prevention of the emergence of blighted and marginal
land, to help prevent chronic unemployment, to help the surrounding area retain and
eventually improve the tax base, to provide the range of service and employment
opportunities required by the population, to help prevent the movement of talented and
educated persons out of the State and to areas within the State where their services may not
be as effectively used, and to promote more intensive development and use of land within
the City and surrounding communities, and to provide available adequate recreational and
social services to residents of the State at a reasonable cost.
(h) It is desirable, feasible, and consistent with the objects and purposes of the
Act to issue the Note, for the purpose of financing the costs of the Project.
(i) The City has determined to proceed with the Project and the financing
thereof as required by Section 469.154 Subd. 4 of the Act and authorizes application to the
3
12124540x2
Department of Employment and Economic Development ("DEED") for the approval of the
Project.
SECTION 2. THE NOTE.
2.1 Authorized Amount and Form of Note. The Note is hereby approved and shall be
issued pursuant to this Resolution in substantially the form attached to the Financing Agreement
with such appropriate variations, omissions, and insertions as are necessary and appropriate and
are permitted or required by this Resolution, and in accordance with the further provisions hereof;
and the total aggregate principal amount of the Note that may be outstanding hereunder is expressly
limited to $6,650,000, unless a duplicate Note is issued pursuant to the Financing Agreement. The
Note shall bear interest at a rate or rates as set forth therein.
2.2 The Note. The Note shall be dated as of the date of delivery to the Lender, shall be
payable at the times and in the manner, shall bear interest at the rate, and shall be subject to such
other terms and conditions as are set forth therein.
2.3 Execution. The Note shall be executed on behalf of the City by the signatures of
its Mayor and the City Administrator and shall be sealed with the seal of the City; provided that
the seal may be intentionally omitted as provided by law. In case any officer whose signature shall
appear on the Note shall cease to be such officer before the delivery of the Note, such signature
shall nevertheless be valid and sufficient for all purposes, the same as if had remained in office
until delivery. In the event of the absence or disability of the Mayor or the City Administrator
such officers of the City as, in the opinion of the City Attorney, may act in their behalf, shall
without further act or authorization of the City Council execute and deliver the Note.
2.4 Delivery of Initial Note. Before delivery of the Note there shall be filed with the
Lender (except to the extent waived by the Lender) the following items:
(1) an executed copy of each of the following documents:
(a) the Financing Agreement; and
(b) the Continuing Covenant Agreement.
(2) an opinion of Counsel for the Borrower as prescribed by the Lender and
Bond Counsel;
(3) the opinion of Bond Counsel as to the validity and tax exempt status of the
Note;
(4) evidence that the Borrower is an organization described in Section 501(c)(3)
of the Code and is exempt from income taxation under Section 501(c)(3) of the Code;
(5) approval of the Project from DEED; and
I212454M
(6) such other documents and opinions as Bond Counsel may reasonably
require for purposes of rendering its opinion required in subsection (3) above or that the
Lender may reasonably require for the closing.
2.5 Disposition of Proceeds of the Note. Upon delivery of the Note to Lender, the
Lender shall, on behalf of the City, disburse the proceeds of the Note for financing the Project in
accordance with the terms of the Financing Agreement.
2.6 Registration of Transfer. The City will cause to be kept at the office of the City
Clerk a Note Register in which, subject to such reasonable regulations as it may prescribe, the City
shall provide for the registration of transfers of ownership of the Note. The Note shall be initially
registered in the name of the Lender and shall be transferable upon the Note Register by the Lender
in person or by its agent duly authorized in writing, upon surrender of the Note together with a
written instrument of transfer satisfactory to the City Administrator, duly executed by the Lender
or its duly authorized agent. The form of assignment included in the Note shall be sufficient for
said purpose.
Upon such transfer the City Administrator shall note the date of registration and the name
and address of the new Lender in the applicable Note Register and in the registration blank
appearing on the Note.
2.7 Mutilated, Lost or Destroyed Note. In case the Note issued hereunder shall become
mutilated or be destroyed or lost, the City shall, in accordance with the Financing Agreement and
if not then prohibited by law, cause to be executed and delivered, a new Note of like outstanding
principal amount, number and tenor in exchange and substitution for and upon cancellation of such
mutilated Note, or in lieu of and in substitution for such Note destroyed or lost, upon the Lender's
paying the reasonable expenses and charges of the City in connection therewith, and in the case of
a Note destroyed or lost, the filing with the City of evidence satisfactory to the City with indemnity
satisfactory to it. If the mutilated, destroyed or lost Note has already matured or been called for
redemption in accordance with its terms it shall not be necessary to issue a new Note prior to
payment.
2.8 Ownership of Note. The City may deem and treat the person in whose name the
Note is last registered in the Note Register and by notation on the Note whether or not such Note
shall be overdue, as the absolute owner of such Note for the purpose of receiving payment of or
on account of the principal balance, redemption price or interest and for all other purposes
whatsoever, and the City shall not be affected by any notice to the contrary.
2.9 Limitation on Note Transfers. The Note will be issued to an "accredited investor"
and without registration under state or other securities laws, pursuant to an exemption for such
issuance; and accordingly the Note may not be assigned or transferred in whole or part, nor may a
participation interest in the Note be given pursuant to any participation agreement, except to
another "accredited investor" or "financial institution" in accordance with an applicable exemption
from such registration requirements and with full and accurate disclosure of all material facts to
the prospective purchaser(s) ortransferee(s).
12124540x2
2.10 Issuance of a New Note. Subject to the provisions of Section 2.9 and the Financing
Agreement, the City shall, at the request and expense of the Lender, issue a new note, in aggregate
outstanding principal amount equal to that of the Note surrendered, and of like tenor except as to
number, principal amount, and the amount of the periodic installments payable thereunder, and
registered in the name of the Lender or such transferee as may be designated by the Lender.
SECTION 3. GENERAL COVENANTS.
3.1 Payment of Principal and Interest. The City covenants that it will promptly pay or
cause to be paid the principal of and interest on the Note at the place, on the dates, solely from the
source and in the manner provided herein and in the Note. The principal and interest are payable
solely from and secured by revenues and proceeds derived from the Financing Agreement, which
revenues and proceeds are hereby specifically pledged to the payment thereof in the manner and
to the extent specified in the Note and the Financing Agreement; and nothing in the Note or in this
Resolution shall be considered as assigning, pledging, or otherwise encumbering any other funds
or assets of the City.
3.2 Performance of and Authority for Covenants. The City covenants that it will
faithfully perform at all times any and all covenants, undertakings, stipulations, and provisions
contained in this Resolution, in the Note executed, authenticated, and delivered hereunder and in
all proceedings of the City Council pertaining thereto; that it is duly authorized under the
Constitution and laws of the State of Minnesota including particularly and without limitation the
Act, to issue the Note authorized hereby, pledge the revenues and assign the Financing Agreement
in the manner and to the extent set forth in this Resolution, the Note and the Financing Agreement;
that all action on its part for the issuance of the Note and for the execution and delivery thereof
has been duly and effectively taken; and that the Note in the hands of the Lender is and will be a
valid and enforceable special limited obligation of the City according to the terms thereof.
3.3 Enforcement and Performance of Covenants. The City agrees to enforce all
covenants and obligations of the Borrower under the Financing Agreement, upon request of the
Lender and being indemnified to the satisfaction of the City for all expenses and claims arising
therefrom, and to perform all covenants and other provisions pertaining to the City contained in
the Note and the Financing Agreement and subject to Section 3.4.
3.4 Nature of Security. Notwithstanding anything contained in the Note, the Financing
Agreement, the Continuing Covenant Agreement, or any other document referred to in Section 2.4
to the contrary, under the provisions of the Act the Note may not be payable from or be a charge
upon any funds of the City other than the revenues and proceeds pledged to the payment thereof,
nor shall the City be subject to any liability thereon, nor shall the Note otherwise contribute or give
rise to a pecuniary liability of the City or, to the extent permitted by law, any of the City's officers,
employees, and agents. No holder of the Note shall ever have the right to compel any exercise of
the taxing power of the City to pay the Note or the interest thereon, or to enforce payment thereof
against any property of the City other than the revenues pledged under the Financing Agreement;
and the Note shall not constitute a charge, lien or encumbrance, legal or equitable, upon any
property of the City; and the Note shall not constitute a debt of the City within the meaning of any
constitutional or statutory limitation; but nothing in the Act impairs the rights of the Lender to
enforce the covenants made for the security thereof as provided in this Resolution, the Financing
C
�rarzisi���
Agreement, and the Continuing Covenant Agreement, and in the Act, and by authority of the Act
the City has made the covenants and agreements herein for the benefit of the Lender; provided that
in any event, the agreement of the City to perform or enforce the covenants and other provisions
contained in the Note, the Financing Agreement, and the Continuing Covenant Agreement, shall
be subject at all times to the availability of revenues under the Financing Agreement sufficient to
pay all costs of such performance or the enforcement thereof, and the City shall not be subject to
any personal or pecuniary liability thereon.
SECTION 4. MISCELLANEOUS.
4.1 Severability. If any provision of this Resolution shall be held or deemed to be or
shall, in fact, be inoperative or unenforceable as applied in any particular case in any jurisdiction
or jurisdictions or in all jurisdictions or in all cases because it conflicts with any provisions of any
constitution or statute or rule or public policy, or for any other reason, such circumstances shall
not have the effect of rendering the provision in question inoperative or unenforceable in any other
case or circumstance, or of rendering any other provision or provisions herein contained invalid,
inoperative, or unenforceable to any extent whatever. The invalidity of any one or more phrases,
sentences, clauses or paragraphs in this Resolution contained shall not affect the remaining
portions of this Resolution or any part thereof.
4.2 Authentication of Transcript. The officers of the City are directed to furnish to
Bond Counsel certified copies of this Resolution and all documents referred to herein, and
affidavits or certificates as to all other matters which are reasonably necessary to evidence the
validity of the Note. All such certified copies, certificates and affidavits, including any heretofore
furnished, shall constitute recitals of the City as to the correctness of all statements contained
therein.
4.3 Authorization to Execute Agreements. The form of the proposed Financing
Agreement is hereby approved in substantially the form presented to the City Council, together
with such additional details therein as may be necessary and appropriate and such modifications
thereof, deletions therefrom and additions thereto as may be necessary and appropriate and
approved by Bond Counsel prior to the execution of the documents. The Mayor and the City
Administrator of the City are authorized to execute the Financing Agreement, and such other
documents as Bond Counsel considers appropriate in connection with the issuance of the Note, in
the name of and on behalf of the City. In the event of the absence or disability of the. Mayor or the
City Administrator such officers of the City as, in the opinion of the City Attorney, may act on
their behalf, shall without further act or authorization of the City Council do all things and execute
all instruments and documents required to be done or executed by such absent or disabled officers.
The execution of any instrument by the appropriate officer or officers of the City herein authorized
shall be conclusive evidence of the approval of such documents in accordance with the terms
hereof.
7
12124540x2
Adopted by the City Council of the City of Andover, Minnesota, this 6th day of November,
2019.
Mayor
ATTEST:
City Administrator
The motion for the adoption of the foregoing resolution was duly seconded by Member
, and after full discussion thereof and upon vote being taken thereon,
the following voted in favor thereof:
and the following voted against the same:
whereupon said resolution was declared duly passed and adopted.
12124540x2
STATE OF MINNESOTA
COUNTY OF ANOKA
CITY OF ANDOVER
I, the undersigned, being the duly qualified and acting City Administrator of the City of
Andover, DO HEREBY CERTIFY that I have compared the attached and foregoing extract of
minutes with the original thereof on file in my office, and that the same is a full, true and complete
transcript of the minutes of a meeting of the City Council duly called and held on the date therein
indicated, insofar as such minutes relate to a resolution authorizing the issuance of the Note.
WITNESS my hand this day of 2019.
City Administrator
.61
1212454M
FINANCING AGREEMENT
by and among
CITY OF ANDOVER, MINNESOTA,
YOUNG MEN'S CHRISTIAN ASSOCIATION OF THE GREATER TWIN CITIES
PNC BANK, NATIONAL ASSOCIATION
Relating to:
City of Andover, Minnesota
Recreational Facility Revenue Note
(YMCA of the Greater Twin Cities Project)
Series 2019
Dated as of November 1, 2019
121018180
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section1.01. Definitions...........................................................................................................2
Section 1.02. Incorporation of Certain Definitions by Reference ............................................. 7
Section 1.03. Computation of Time Periods............................................................................. 7
Section 1.04. Relation to Other Documents; Incorporation by Reference ................................ 7
Section1.05. Construction........................................................................................................ 7
ARTICLE II
THE NOTE
Section 2.01.
Authorized Amount of the Note; Form of Note ..................................................
8
Section 2.02.
Issuance of Note..................................................................................................
8
Section2.03.
Interest Rate.........................................................................................................
9
Section2.04.
Reserved..............................................................................................................9
15
Section 2.05.
Execution; Limited Obligation............................................................................
9
Section 2.06.
Mutilated, Lost, Stolen or Destroyed Note ........................................................
10
Section 2.07.
Exchangeability and Transfer of Note; Persons Treated as Owners .................
10
Section2.08.
Cancellation.......................................................................................................
11
Section2.09.
Reserved............................................................................................................11
Section 2.10.
Redemption of Note..........................................................................................
11
Section 2.11.
Notice of Redemption........................................................................................
13
ARTICLE III
THE LOAN AND ACCOUNTS
Section 3.01.
Loan of Note Proceeds......................................................................................
13
Section3.02.
Repayment of Loan ...........................................................................................
14
Section3.03.
[Reserved.].........................................................................................................
14
Section 3.04.
Unconditional Obligations.................................................................................
14
Section 3.05.
Prepayments of Loan .........................................................................................
15
ARTICLE IV
ACQUISITION OF THE PROJECT
Section 4.01.
Agreement to Undertake and Complete the Project ..........................................
15
Section4.02.
Reserved............................................................................................................15
Section 4.03.
Establishment of Completion Date and Certificate as to Completion ...............
15
Section 4.04.
Borrower Required to Pay Costs in Event Note Proceeds Insufficient .............
15
Section 4.05.
Borrower and Issuer Representatives and Successors .......................................
16
Section 4.06.
Plans and Specifications....................................................................................
16
ARTICLE V
CONDITIONS PRECEDENT TO PURCHASE OF NOTE
Section 5.01. Documentary Requirements.............................................................................. 17
Section 5.02. Incorporation by Reference............................................................................... 18
12101818x3
Section 6.01.
Section 6.02.
Section 6.03.
Section 6.04.
Section 6.05.
Section 6.06.
Section 6.07.
Section 6.08.
Section 6.09.
Section 6.10.
TABLE OF CONTENTS
(Continued)
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BORROWER
Organization; Power; Qualification............
Authorization; Enforceability .....................
Noncontravention.......................................
Governmental Approvals ............................
Litigation....................................................
Title to Properties ........................................
Absence of Defaults and Events of Default
Income Tax Status ......................................
Regarding the I'miect
Pate
................. 18
................. 18
................. 18
.............. 18
.............. 19
.............. 19
.............. 19
.............. 19
.............. 19
.............. 20
..........................................................................
Tax -Exempt Status of the Note...........................................................
ARTICLE VII
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ISSUER
Section 7.01.
Organization; Power; Qualification...................................................................
23
Section 7.02.
Authorization of Note Documents.....................................................................
23
Section 7.03.
Enforceability....................................................................................................
23
Section 7.04.
Governmental Approvals...................................................................................
23
Section7.05.
No Default.........................................................................................................
24
Section 7.06.
Obligations of Issuer..........................................................................................
24
Section 7.07.
Noncontravention..............................................................................................
24
Section 7.08.
Compliance with Law........................................................................................
24
Section7.09.
Litigation...........................................................................................................24
Section7.10.
Security..............................................................................................................
24
Section7.11.
Blue Sky............................................................................................................
25
Section 7.12.
Pending Legislation and Decisions...................................................................
25
Section 7.13.
Tax Covenants of the Issuer..............................................................................
25
ARTICLE VIII
MAINTENANCE AND TAXES
Section 8.01. Borrower's Obligations to Maintain and Repair ............................................... 25
Section 8.02. Taxes and Other Charges................................................................................... 26
ARTICLE IX
INSURANCE, EMINENT DOMAIN AND DAMAGE AND DESTRUCTION
Section9.01. Insurance............................................................................................................ 26
Section 9.02. Provisions Respecting Eminent Domain; Damage; Destruction ....................... 26
ARTICLE X
SPECIAL COVENANTS
Section 10.01. Access to the Facilities and Inspection.............................................................. 26
ii
12101818v3
TABLE OF CONTENTS
(Continued)
Page
Section 10.02.
Further Assurances and Corrective Instruments ................................................
27
Section 10.03.
Recording and Filing; Other Instruments..........................................................
27
Section 10.04.
Tax -Exempt Status............................................................................................
27
Section 10.05.
Indemnity Against Claims.................................................................................
27
Section 10.06.
Release and Indemnification.............................................................................
28
Section 10.07.
Non -Arbitrage Covenant...................................................................................
28
Section 10.08.
Notice of Determination of Taxability..............................................................
29
Section 10.09.
Duties and Obligations......................................................................................
29
Section 10.10.
Financial Statements..........................................................................................
29
Section 10.11.
Compliance with Laws......................................................................................
29
Section 10.12.
Maintenance of Existence..................................................................................
29
Section 10.13.
IRS Audit Expenses...........................................................................................
29
Section 10.14.
Reports to Issuer................................................................................................
29
ARTICLE XI
ASSIGNMENT, LEASE AND SALE
Section 11.01. Restrictions on Transfer of Issuer's Rights ....................................................... 29
Section 11.02. Assignment of Agreement by the Borrower or Lease or Sale of Project.......... 30
ARTICLE XII
EVENTS OF DEFAULT
Section 12.01. Events of Default............................................................................................... 30
Section 12.02. Rights and Remedies......................................................................................... 31
Section 12.03. Application of Moneys...................................................................................... 32
Section 12.04. No Waiver; Remedies........................................................................................ 32
ARTICLE XIII
MISCELLANEOUS
Section 13.01.
Amendments and Waivers.................................................................................
32
Section 13.02.
Execution in Counterparts.................................................................................
33
Section13.03.
Notices...............................................................................................................
33
Section13.04.
Severability........................................................................................................
33
Section 13.05.
Payments Due on Non -Business Days..............................................................
34
Section 13.06.
Liability of the Purchaser..................................................................................
34
Section 13.07.
Governing Law..................................................................................................
34
Section13.08.
Captions.............................................................................................................34
Section 13.09.
Successors and Assigns.....................................................................................
34
Section 13.10.
Complete and Controlling Agreement...............................................................
34
Section 13.11.
Contractual Interpretation..................................................................................
34
Section 13.12.
Electronic Signatures.........................................................................................
35
Section 13.13.
Third Party Beneficiaries...................................................................................
35
Section 13.14.
Limitation of Issuer's Liability..........................................................................
35
Section 13.15.
Issuer's Attorneys' Fees and Costs....................................................................
35
iii
121018180
TABLE OF CONTENTS
(Continued)
Section13.16. Release...............................................................................................
EXHIBIT A
INTEREST RATE PROVISIONS
EXHIBIT B
FORM OF NOTE
EXHIBIT C
DESCRIPTION OF THE PROJECT
EXHIBIT D
FORM OF DISBURSEMENT REQUEST
EXHIBIT E
FORM OF INVESTMENT LETTER
iv
121018180
Page
36
FINANCING AGREEMENT
THIS FINANCING AGREEMENT is dated as of November 1, 2019, and is made and
entered into by and among the CITY OF ANDOVER, MINNESOTA, YOUNG MEN'S
CHRISTIAN ASSOCIATION OF THE GREATER TWIN CITIES, and PNC BANK,
NATIONAL ASSOCIATION. All capitalized terms used herein and not otherwise defined shall
have the meanings assigned in Section 1.01 and Exhibit A or as otherwise provided in
Section 1.02.
WITNESSETH:
WHEREAS, Minnesota Statutes, Sections 469.152 through 469.165, relating to municipal
industrial development (the "Act"), give municipalities the power to issue revenue obligations for
the purpose of promoting the welfare of the state by the active attraction and encouragement and
development of economically sound industry and commerce to prevent so far as possible the
emergence of blighted and marginal lands and areas of chronic unemployment; and
WHEREAS, in furtherance of the public purpose for which the Issuer was created, the
Issuer proposes to issue its $6,650,000 in principal amount Recreational Facility Revenue Note
(YMCA of the Greater Twin Cities Project) Series 2019 (the "Note") pursuant to this Agreement,
to finance the acquisition, construction, expansion, renovation, and equipping of the Borrower's
portion of the Issuer's community center (the "Project"), and certain other costs related to the
Project, which is owned by the Issuer and leased to the Borrower, and is located at 13200 Hanson
Blvd. NW within the City of Andover, and to lend the proceeds of the sale of the Note to the
Borrower pursuant to the terms and conditions hereof, and
WHEREAS, the Borrower desires to borrow the proceeds of the Note upon the terms and
conditions set forth in this Agreement; and
WHEREAS, the Purchaser has agreed to purchase the Note from the Issuer; and
WHEREAS, all things necessary to make the Note, when issued, executed and delivered
by the Issuer, to the extent required pursuant to this Agreement, the valid, binding and legal
obligation of the Issuer according to the import thereof, except as otherwise stated herein, have
been done and performed, and the creation, execution and delivery of this Agreement, and the
issuance of the Note, subject to the terms hereof, have in all respects been duly authorized.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, including the covenants, terms and conditions hereinafter contained, and to induce
the Issuer to make the Loan and the Purchaser to purchase the Note, the Issuer, the Borrower and
the Purchaser agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions. In addition to terms defined at other places in this Agreement,
including Exhibit A, the following words and terms as used in this Agreement and the recitals
hereto shall have the following meanings unless the context or use clearly indicates another or
different meaning or intent.
"Acquisition" means the acquisition, construction, renovation, expansion, and equipping
of the Project.
"Act" has the meaning assigned to such term in the recitals hereto.
"Affiliate" has the meaning assigned to such term in the Continuing Covenant Agreement.
"Agreement" means this Financing Agreement.
"Applicable Law" means (a) all applicable common law and principles of equity and (b) all
applicable provisions of all (i) constitutions, statutes, rules, regulations and orders of all
Governmental Authorities, (ii) Governmental Approvals and (iii) orders, decisions judgments,
writs, injunctions and decrees of all courts (whether at law or in equity) and arbitrators.
"Approving Opinion" means, with respect to any action relating to the Note, the occurrence
of which requires an Opinion of Counsel, an Opinion of Counsel delivered by Bond Counsel to
the effect that such action (a) is permitted by this Agreement and the Act and (b) will not adversely
affect the exclusion of interest on the Note from gross income of the Owners for purposes of federal
income taxation.
"Authorized Denomination" means $250,000 and multiples of $0.01 in excess thereof or,
if less, the Principal Amount.
"Bankruptcy Code" means Title 11 of the United States Code, as amended, and any
successor statute or statutes having substantially the same function.
"Bond Counsel" means Briggs and Morgan, Professional Association or any other attorney
or firm of attorneys, which is admitted to practice law before the highest court of any state in the
United States of America or the District of Columbia and nationally recognized and experienced
in legal work relating to the issuance of tax-exempt bonds.
"Borrower" means Young Men's Christian Association of the Greater Twin Cities, a
Minnesota nonprofit corporation, and its permitted successors and assigns.
"Borrower Representative" means any one of the persons at the time designated to act on
behalf of the Borrower by written certificate furnished to the Issuer and the Purchaser containing
the specimen signatures of such persons and signed on behalf of the Borrower by the Treasurer of
the Borrower.
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"Business Day" means any day on which (a) the Federal Reserve System is in operation,
(b) the New York Stock Exchange is not closed and (c) banks in the State and in the State of New
York are open for business.
"Closing Date" means November.. 2019, subject to the satisfaction of the conditions
precedent set forth in Article V.
"Code" means the Internal Revenue Code of 1986, as amended, and the rulings and
regulations (including temporary and proposed regulations) promulgated thereunder, or any
successor statute thereto.
"Completion Date" means, with respect to the Project, the earliest of (a) three years after
the Issue Date, and (b) the date on which the Borrower Representative delivers a completion
certificate to the Purchaser pursuant to Section 4.03.
"Contract" means any indenture, contract, agreement (other than this Agreement), other
contractual restriction, lease, mortgage, instrument, certificate of incorporation, charter or by law.
"Continuing Covenant Agreement" means the Continuing Covenant Agreement dated as
of November 1, 2019 between the Borrower and the Purchaser.
"Cost(s) of the Project," "Cost' or "Costs" means all costs and allowances which the Issuer
or the Borrower may properly pay or accrue for the Project and which, under GAAP, are
chargeable to the capital account of the Project or could be so charged either with a proper election
to capitalize such costs or, but for a proper election, to expense such costs, including (without
limitation) the following costs:
(a) fees and expenses incurred in preparing the Plans and Specifications for the
Project (including any preliminary study or planning or any aspect thereof); any labor,
services, materials and supplies used or furnished in site improvement and construction;
any equipment for the Project; and all real and tangible personal property deemed necessary
by the Borrower and acquired in connection with the Project;
(b) fees for architectural, engineering, supervisory and consulting services;
(c) any fees and expenses incurred in connection with perfecting and protecting
title to the Project and any fees and expenses incurred in connection with preparing,
recording or filing such documents, instruments or financing statements as the Borrower,
the Purchaser or the Issuer may deem desirable to perfect or protect the rights of the Issuer
or the Purchaser under the Note Documents;
(d) any legal, accounting or financial advisory fees and expenses, including fees
and expenses of Bond Counsel and Counsel to the Issuer, the Borrower and the Purchaser,
any fees and expenses of the Issuer, the Purchaser or any rating agency, filing fees, and
printing and engraving costs incurred in connection with the authorization, issuance, sale
and purchase of the Note and the preparation of the Note Documents and all other
documents in connection with the authorization, issuance, sale and purchase of the Note;
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(e) interest to accrue on the Note prior to the Completion Date;
(f) any administrative or other fees charged by the Issuer or reimbursement
thereto of expenses in connection with the Project until the Completion Date; and
(g) any other costs and expenses relating to the Project which could constitute
costs or expenses for which the Issuer may expend Note Proceeds under the Act.
"Counsel" means an attorney or firm of attorneys, admitted to practice law before the
highest court of any state in the United States of America or the District of Columbia, including
any Bond Counsel.
"Default" means the occurrence of any event or the existence of any condition which
constitutes an Event of Default or the occurrence of any event or the existence of any condition
which with the giving of notice, the passage of time or both, would constitute an Event of Default.
"Default Rate" has the meaning assigned to such term in the Continuing Covenant
Agreement.
"Eminent Domain" means the taking of title to, or the temporary use of, the Facilities or
any part thereof pursuant to eminent domain or condemnation proceedings, or by any settlement
or compromise of such proceedings, or any voluntary conveyance of the Facilities or any part
thereof during the pendency of, or as a result of a threat of, such proceedings.
"Event of Default" shall have the meaning assigned to such term in Article XII.
"Facilities" means, collectively, (a) the Project and (b) all materials, supplies, equipment,
apparatus and other items of personal property owned by the Borrower and attached to, installed
in or used in connection with the Project, including water, gas, electrical, storm and sanitary sewer
facilities and all other utilities whether or not situated in easements.
"Fiscal Year" has the meaning assigned to such term in the Continuing Covenant
Agreement.
"GAAP" means generally accepted accounting principles in the United States of America
set forth in the opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or such other principles as may be approved by a significant segment
of the accounting profession in the United States of America, that are applicable to the
circumstances as of the date of determination, consistently applied.
"Governing Body" means the board, commission, council or other body in which the
general legislative powers of the Issuer are vested.
"Governmental Approvals" means an authorization, consent, approval, permit, license,
certificate of occupancy or an exemption of, a registration or filing with, or a report to, any
Governmental Authority.
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"Governmental Authority" means the government of the United States of America or any
other nation or any political subdivision thereof or any governmental or quasi -governmental entity,
including any court, department, commission, board, bureau, agency, administration, central bank,
service, district or other instrumentality of any governmental entity or other entity exercising
executive, legislative, judicial, taxing, regulatory, fiscal, monetary or administrative powers or
functions of or pertaining to government (including any supra -national bodies such as the
European Union or the European Central Bank), or any arbitrator, mediator or other Person with
authority to bind a party at law.
"Insurance Proceeds" means the insurance claims under and the proceeds of any and all
policies of insurance covering the Facilities or any part thereof, including all returned and unearned
premiums with respect to any insurance relating to such Facilities, in each case whether now or
hereafter existing or arising.
"Issue Date" means the date on which the Note are delivered to the Purchaser upon original
issuance.
"Issuer" means City of Andover, Minnesota, a municipal corporation and political
subdivision duly organized and existing under the Constitution and laws of the State, including the
Act, or any successor to its rights and obligations under this Agreement.
"Issuer Representative" means any one of the persons at the time designated to act on
behalf of the Issuer by written certificate furnished to the Borrower and the Purchaser containing
the specimen signatures of such persons and signed on behalf of the Issuer by its [AUTHORIZED
OFFICERS].
"Lease" means the Sublease Agreement between the Issuer and the Borrower dated as of
May 1, 2004 as amended by the First Amendment to Sublease Agreement dated June 24, 2019 and
the Second Amendment to Sublease Agreement dated November , 2019, as it may be further
amended and supplemented from time to time.
"Lien" means, with respect to any asset, any mortgage, deed of trust, lien, pledge, charge,
security interest, hypothecation, assignment, deposit arrangement or encumbrance of any kind in
respect of such asset, whether or not filed, recorded or otherwise perfected or effective under
Applicable Law, as well as the interest of a vendor or lessor under any conditional sale agreement,
capital or finance lease or other title retention agreement relating to such asset and, in the case of
securities, any purchase option, call or similar right of a third party with respect to such securities.
"Loan" means the loan from the Issuer to the Borrower of the proceeds of the Note, the
repayment obligation of which is evidenced by this Agreement.
"Maturity Date" means November , 2029.
"Net Proceeds" means, when used with respect to any Insurance Proceeds or proceeds
resulting from Eminent Domain, the gross proceeds therefrom less all expenses (including
attorneys' fees) incurred in the realization thereof.
"Note" has the meaning assigned to such term in the recitals hereto.
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"Note Documents" means, collectively, this Agreement, the Note, the Continuing Covenant
Agreement, the Lease, and the Tax Certificate.
"Note Proceeds" means the principal of the Note and any investment earnings thereon.
"Opinion of Counsel" means any opinion of Counsel delivered pursuant to this Agreement.
Each such opinion shall be addressed to the Borrower, the Issuer or the Purchaser.
"Outstanding" means, for any date of determination, any Note that has been executed and
delivered to the Purchaser hereunder, except:
(a) a Note cancelled or delivered for cancellation at or prior to such date;
(b) a Note in lieu of which others have been authenticated under Sections 2.06
and 2.07; and
(c) a Note, the principal of which has been previously paid or redeemed.
"Owner" means the registered owner of a Note.
"Permitted Liens" has the meaning assigned to such term in the Continuing Covenant
Agreement.
"Person" means an individual, a corporation, a partnership, an association, a joint venture,
a trust, a business trust, a limited liability company or any other entity or organization, including
a governmental or political subdivision or an agency or instrumentality thereof.
"Plans and Specifications" means the plans and specifications used in the Acquisition, as
the same may be revised from time to time by the Borrower in accordance with Section 4.06.
"Principal Amount" means the Outstanding principal amount of the Note.
"Project" has the meaning assigned to such term in the recitals hereto.
"Property" means, when used in connection with any Person, any and all rights, title and
interests of such Person in and to any and all property (including cash) whether real, personal or
mixed, or tangible or intangible, and wherever situated.
"Purchase Price" means, for any date of determination, an amount equal to 100% of the
principal amount of the Note Outstanding, plus accrued and unpaid interest thereon to the date of
purchase.
"Purchaser" means (a) if there is a single Owner of all of the Note, the Owner of the Note
and (b) if there is more than one Owner of the Note, the Owners owning a majority of the aggregate
Principal Amount of the Note. On the Issue Date, the initial Purchaser of the Note is PNC Bank,
National Association.
"Revenues" means all legally available revenues of the Borrower, subject to Permitted
Liens and excluding the rights to receive any gifts, donations, pledges, grants, legacies, bequests,
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demises or contributions heretofore or hereafter made and designated or specified by the donor or
maker thereof as being for a specific purpose other than the Project and thus not legally available
for payment of debt service on the Note.
"State" means the State of Minnesota.
"Tax Certificate" means the tax certificate of the Borrower dated the Issue Date.
"Written" or "in writing" means any form of written communication or a communication
by means of a facsimile device.
Section 1.02. Incorporation of Certain Definitions by Reference. Each capitalized
term used herein and not otherwise defined herein shall have the meaning provided therefor in the
Continuing Covenant Agreement, unless the context otherwise requires.
Section 1.03. Computation of Time Periods. In this Agreement, in the computation of
a period of time from a specified date to a later specified date, unless otherwise specified herein,
the word "from" means "from and including" and the words "to" and "until' each mean "to but
excluding" and the word "through" means "to and including."
Section 1.04. Relation to Other Documents; Incorporation by Reference.
(a) Nothing in this Agreement shall be deemed to amend or relieve the Issuer
or the Borrower of any of its obligations under any Note Document to which it is a party.
Conversely, to the extent that the provisions of any Note Document allow the parties hereto
to take or not take certain actions, the parties hereto nevertheless shall be fully bound by
the provisions of this Agreement.
(b) Except as provided in subsection (c) below, all references to this Agreement
or any other documents, including the other Note Documents, shall be deemed to include
all amendments, restatements, modifications and supplements thereto to the extent such
amendment, restatement, modification or supplement is made in accordance with the
provisions of such document and this Agreement.
(c) All provisions of this Agreement making reference to specific Sections of
any Note Document shall be deemed to incorporate such Sections into this Agreement by
reference as though specifically set forth herein (with such changes and modifications as
may be herein provided) and shall continue in full force and effect with respect to this
Agreement notwithstanding payment of the Note and all amounts due under or secured by
the Note Documents, the termination or defeasance thereof or any modification thereto or
any waiver given in connection therewith, so long as this Agreement is in effect and until
all amounts due and owing under this Agreement, the Note and the other Note Documents
are paid in full.
Section 1.05. Construction. Unless the context of this Agreement otherwise clearly
requires, references to the plural include the singular, to the singular include the plural and to the
part include the whole. The word "including" shall be deemed to mean "including but not limited
to," and "or" has the inclusive meaning represented by the phrase "and/or." The words "hereof,"
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"herein," "hereunder" and similar terms in this Agreement refer to this Agreement as a whole and
not to any particular provision of this Agreement. The Section headings contained in this
Agreement and the table of contents preceding this Agreement are for reference purposes only and
shall not control or affect the construction of this Agreement or the interpretation thereof in any
respect. Article, section, subsection, exhibit, schedule and annex references are to this Agreement
unless otherwise specified. Any exhibit, schedule or annex attached hereto is incorporated by
reference herein and is a constituent part of this Agreement.
ARTICLE II
THE NOTE
Section 2.01. Authorized Amount of the Note; Form of Note
(a) No Note may be issued under the provisions of this Agreement except in
accordance with this Article. The total maximum principal amount of the Note that may
be issued and Outstanding hereunder is expressly limited to $6,650,000. The Note shall be
designated "$6,650,000 City of Andover, Minnesota Recreational Facility Revenue Note
(YMCA of the Greater Twin Cities Project) Series 2019."
(b) The Note shall be in substantially the form of Exhibit B, with such
appropriate variations, omissions, substitutions and insertions as are permitted or required
hereby or are required by law and may have such letters, numbers or other marks of
identification and such legends and endorsements placed thereon as may be required to
comply with any Applicable Laws.
(c) The Note shall be in either typewritten or printed form, as the Borrower
shall direct, on behalf of the Issuer; provided that any expenses, including expenses of
printing, incurred in connection therewith shall be paid by the Borrower.
Section 2.02. Issuance of Note. The Note shall bear interest from the Issue Date, until
paid, at the rate set forth in Exhibit A, and shall mature, unless sooner paid, on the Maturity Date
on which date all unpaid principal, redemption premium, if any, and interest on the Note shall be
due and payable.
The Note shall be issued as a fully registered note without coupons in Authorized
Denominations. The Note (and any replacement Note) shall be numbered from R-1 upwards
bearing numbers not then contemporaneously outstanding (in order of issuance) according to the
records of the Issuer. Upon the initial issuance of the Note, the Issuer shall execute and deliver
the Note to the Purchaser, as the registered owner of the Note.
The Note shall be dated the Issue Date. The Note shall bear interest (i) from the Issue Date,
if executed and delivered prior to the first Interest Payment Date, or (ii) otherwise from the Interest
Payment Date that is, or that immediately precedes, the date on which such Note has been executed
and delivered (unless payment of interest is in default, in which case such Note shall bear interest
from the date to which interest has been paid).
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The principal and Purchase Price of, redemption premium, if any, and the interest on the
Note shall be payable in lawful currency of the United States. The principal and Purchase Price
of and redemption premium, if any, on the Note shall be paid to the Purchaser (without any
presentment thereof, except upon the payment of the final installment of principal, and without
any notation of such payment being made thereon), by the Purchaser debiting an account of the
Borrower as may be provided in the Continuing Covenant Agreement or in such other manner and
at such address in the United States as may be designated by the Purchaser in writing to the
Borrower.
All payments made shall be accompanied by sufficient information to identify the source
and proper application of such payment and, if the Note is sold or transferred, the Purchaser shall
notify the Borrower in writing of the name and address of the transferee, the effective date of the
transfer, the principal amount of the Note transferred and the payment information notated on the
Note as hereinafter described, and the Purchaser will, prior to delivery of such Note, make a
notation on such Note of the date to which interest has been paid thereon and of the amount of any
prepayments made on account of the principal thereof.
Section 2.03. Interest Rate. The Note shall bear interest as provided in Exhibit A from
the Issue Date to the date of payment in full of the Note. Interest on the Note shall be calculated
on the Principal Amount as described in Exhibit A.
Section 2.04. Reserved.
Section 2.05. Execution; Limited Obligation. The Note shall be executed on behalf of
the Issuer by the manual or facsimile signature of the Mayor and City Administrator of the Issuer.
In case any officer whose manual or facsimile signature shall appear on the Note shall cease to be
such officer before the delivery of such Note, such manual or facsimile signature shall nevertheless
be valid and sufficient for all purposes.
The Note shall be a limited obligation of the Issuer. The principal and Purchase Price of,
redemption premium, if any, and interest on the Note shall not be deemed to constitute or create
an indebtedness, liability or obligation of the Issuer, the State, or any political subdivision or
agency thereof within the meaning of any State constitutional provision or statutory limitation or
a pledge of the faith and credit or the taxing power of the State or any such political subdivision
or agency, including the Issuer and the State. The principal and Purchase Price of, redemption
premium, if any, and interest on the Note are payable solely from and secured by Revenues, all as
described in and subject to limitations set forth in this Agreement, for the equal and ratable benefit
of the Owners, from time to time, of the Note.
THE ISSUANCE OF THE NOTE WILL NOT CONSTITUTE A DEBT OR A PLEDGE
OF THE FAITH AND CREDIT OF THE ISSUER OR THE STATE AND NEITHER THE
FAITH AND CREDIT NOR THE TAXING POWER OF THE STATE OR ANY POLITICAL
SUBDIVISION THEREOF, INCLUDING THE ISSUER, WILL BE PLEDGED TO THE
PAYMENT OF THE NOTE. NONE OF THE ISSUER, THE STATE, OR ANY POLITICAL
SUBDIVISION OF THE STATE SHALL IN ANY EVENT BE LIABLE FOR THE PAYMENT
OF THE PRINCIPAL OR PURCHASE PRICE OF, REDEMPTION PREMIUM, IF ANY, OR
INTEREST ON THE NOTE OR FOR THE PERFORMANCE OF ANY PLEDGE,
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OBLIGATION OR AGREEMENT UNDERTAKEN BY THE ISSUER EXCEPT TO THE
EXTENT THAT THE MONEYS PLEDGED THERETO ARE SUFFICIENT THEREFOR. NO
OWNER OF ANY NOTE HAS THE RIGHT TO COMPEL ANY EXERCISE OF TAXING
POWER OF THE STATE OR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING
THE ISSUER, TO PAY THE NOTE OR THE INTEREST THEREON, AND THE NOTE DOES
NOT CONSTITUTE AN INDEBTEDNESS OF THE ISSUER, THE STATE OR ANY
POLITICAL SUBDIVISION OF THE STATE, OR A LOAN OF CREDIT OF ANY OF THE
FOREGOING WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY
PROVISION.
Section 2.06. Mutilated, Lost, Stolen or Destroyed Note. If any Note is mutilated, lost,
stolen or destroyed, the Issuer may execute a new Note of the same maturity, interest rate, principal
amount and tenor in lieu of and in substitution for the Note mutilated, lost, stolen or destroyed;
provided, that there shall be first furnished to the Issuer evidence satisfactory to it of the ownership
of such Note and of such loss, theft or destruction (or, in the case of a mutilated Note, such
mutilated Note shall first be surrendered to the Issuer), together with indemnity satisfactory to the
Issuer and compliance with such other reasonable regulations as the Issuer may prescribe. If any
such Note shall have matured or a redemption date pertaining thereto shall have passed, instead of
issuing a new Note, the Issuer may pay the same without surrender thereof, upon receipt of such
evidence, indemnification and payment of fees and expenses as described herein. The Issuer may
charge the Owner of such Note with its reasonable fees and expenses incurred in connection with
this Section.
Section 2.07. Exchangeability and Transfer of Note; Persons Treated as Owners.
The Issuer shall keep a registration book showing the name and address of the Owner of the Note.
Any Owner of a Note, in person or by such Owner's duly authorized attorney, may transfer
title to such Owner's Note upon surrender thereof at the principal office of the Issuer, by providing
the Issuer with a written instrument of transfer (in substantially the form of assignment attached to
the Note) executed by the Owner or such Owner's duly authorized attorney, and thereupon, the
Issuer shall execute and deliver in the name of the transferee or transferees a new Note of the same
aggregate principal amount and tenor as the Note surrendered (or for which transfer of registration
has been effected) and of any Authorized Denomination(s).
The Note may be exchanged upon surrender thereof at the principal office of the Issuer
with a written instrument of transfer satisfactory to the Issuer executed by the Owner or such
Owner's attorney duly authorized in writing, for an equal aggregate principal amount of the Note
of the same tenor as the Note being exchanged and of any Authorized Denomination(s). The Issuer
shall execute and deliver a Note that the Owner making the exchange is entitled to receive, bearing
numbers not contemporaneously then outstanding.
Such registrations of transfer or exchanges of a Note shall be without charge to the Owner
of such Note, but any taxes or other governmental charges required to be paid with respect to the
same shall be paid by the Owner of the Note requesting such registration of transfer or exchange
as a condition precedent to the exercise of such privilege. Any service charge made by the Issuer
for any such registration of transfer or exchange and all reasonable expenses of the Issuer and the
Purchaser shall be paid by the Purchaser, except after an Event of Default, and then by the
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Borrower. In case of any transfer, the Purchaser shall give the Borrower written notice of the
name and address of the transferee.
The person in whose name any Note shall be registered shall be deemed and regarded as
the absolute owner thereof for all purposes, and payment of or on account of either principal or
interest shall be made only to or upon the order of the registered owner thereof or such Owner's
duly authorized attorney, but such registration may be changed as hereinabove provided. All such
payments shall be valid and effectual to satisfy and discharge the liability upon such Note to the
extent of the sum or sums so paid.
Any Note issued upon any registration of transfer or exchange of the Note shall be legal,
valid and binding limited obligations of the Issuer, evidencing the same debt, and entitled to the
same security and benefits under this Agreement, as the Note surrendered upon such registration
of transfer or exchange.
Notwithstanding the foregoing, any sale or transfer of the Note must comply with the
conditions of the Continuing Consent Agreement, including delivery of an investment letter to the
Borrower and the Seller, Noteholder in the form attached as Exhibit E to this Agreement.
Section 2.08. Cancellation. Any Note that has been surrendered to the Issuer pursuant to
Sections 2.06 or 2.07, or for payment upon maturity or redemption prior to maturity, shall be
cancelled and destroyed by the Issuer.
Section 2.09. Reserved.
Section 2.10. Redemption of Note
(a) Optional Redemption. Subject to any limitations set forth in the Continuing
Covenant Agreement, the Note is subject to redemption in Authorized Denominations on
any Interest Payment Date at the direction of the Borrower in accordance with Section 3.05,
on behalf of the Issuer, in whole or in part, at a redemption price equal to the principal
amount of the Note to be redeemed plus accrued interest thereon to the redemption date.
Notwithstanding anything herein to the contrary, the Note may be redeemed in amounts
less than Authorized Denominations as required by Section 3.01(b) of the Continuing
Covenant Agreement.
[make whole language — to be provided by PNC]
(b) Extraordinary Optional Redemption. The Note is subject to redemption in
whole, at the direction of the Borrower, on behalf of the Issuer, at a redemption price equal
to 100% of the principal amount of the Note to be redeemed plus accrued interest thereon
to the redemption date, on any date for which the requisite notice of redemption can be
given, within one hundred eighty (180) days of the occurrence of any of the following
events:
(i) the Project shall have been damaged or destroyed to such an extent
that in the judgment of the Borrower (A) it cannot reasonably be restored within a
period of three (3) consecutive months to the condition thereof immediately
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preceding such damage or destruction, (B) the Borrower is thereby prevented from
carrying on its normal operations at the Project for a period of three (3) consecutive
months, or (C) it would not be economically feasible for the Borrower to replace,
repair, rebuild or restore the same;
(ii) title in and to, or the temporary use of, all or substantially all of the
Project shall have been taken under the exercise of the power of Eminent Domain
by any Governmental Authority or any Person acting under governmental authority
(including such a taking as, in the judgment of the Borrower, results in the Borrower
being prevented thereby from carrying on its normal operations at the Project for a
period of three (3) consecutive months);
(iii) as a result of any changes in the Constitution of the State, or the
Constitution of the United States of America or by legislative or administrative
action (whether state or federal) or by final decree, judgment, decision or order of
any court or administrative body (whether state or federal), this Agreement shall
have become void or unenforceable or impossible of performance in accordance
with the intent and purpose of the parties as expressed therein;
(iv) unreasonable burdens or excessive liabilities shall have been
imposed on the Borrower with respect to the operations of the Project, including
federal, state or other ad valorem, property, income or other taxes not being
imposed on the date of this Agreement that, in the judgment of the Borrower, render
the continued operation of the Project uneconomical;
(v) changes which the Borrower cannot reasonably control or overcome
in the economic availability of materials, supplies, labor, equipment and other
properties and things necessary for the efficient operation of the Project for the
purposes contemplated by this Agreement shall have occurred or technological
changes that the Borrower cannot reasonably overcome shall have occurred that, in
the judgment of the Borrower, render the continued operation of the Project
uneconomical;
(vi) legal curtailment of the Borrower's use and occupancy of all or
substantially all of the Project for any reason other than that set forth in (ii) above,
which curtailment shall, in the judgment of the Borrower, prevent the Borrower
from carrying on its normal operations at the Project for a period of three (3)
consecutive months; or
(vii) this Agreement is terminated prior to its expiration for any reason
other than the occurrence of an Event of Default under this Agreement.
Notwithstanding the foregoing provisions of this paragraph (b), any redemption
under this paragraph (b) shall be subject to the provisions of the Continuing Covenant
Agreement.
(c) Mandatory Sinking Fund Redemptions. The Note is not subject to
mandatory sinking fund redemption.
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(d) Reserved.
(e) Note to be Partially Redeemed. If less than all of the Outstanding Note
shall be called for redemption, the portion thereof remaining Outstanding shall be in an
Authorized Denomination. If there shall be called for redemption less than the principal
amount of the Note, (i) the Issuer shall execute and deliver, upon surrender of such Note,
without charge to the Owner thereof in exchange for the unredeemed principal amount of
such Note at the option of such Owner, a Note in any of the Authorized Denominations, or
(ii) to the extent provided in the form of the Note, the Owner may reflect the amount of the
Note being redeemed in the Table of Partial Redemptions without further action.
Section 2.11. Notice of Redemption. The Borrower may exercise its option to prepay the
Loan and thereby cause a redemption of the Note pursuant to Section 2.10(a) or (b) by giving
written notice to the Issuer and the Purchaser, not less than fifteen (15) days prior to the date
selected for redemption; provided, however, that, if such redemption is pursuant to Section 2.10(a)
or (b), the Borrower shall also deliver a certificate of a Borrower Representative certifying that the
conditions precedent to such redemption have been met, and that any conditions to such
redemption set forth in the Continuing Covenant Agreement have been met. Notwithstanding the
foregoing, the Borrower is not required to provide any notice of redemptions pursuant to
Section 2.10(a) which are effected as required by Section 3.01(b) of the Continuing Covenant
Agreement. A notice of optional redemption shall describe whether, and the conditions under
which, the call for redemption may be revoked. A Note properly called for redemption will cease
to bear interest on the date fixed for redemption, provided funds for its redemption have been duly
deposited with the Issuer and, thereafter, the Owner of such Note called for redemption shall have
no rights in respect thereof except to receive payment of the redemption price from the Issuer and
a new Note for any portion not redeemed. On a date no later than the date fixed for redemption in
such notice, the Borrower shall pay, on behalf of the Issuer, to the Owner moneys in an amount
sufficient, together with other moneys, if any, held by the Owner and available for the redemption
of the Note, to redeem the Note at the redemption price set forth above.
ARTICLE III
THE LOAN AND ACCOUNTS
Section 3.01. Loan of Note Proceeds.
(a) To provide funds for the Acquisition, the Issuer agrees that it will sell, issue
and deliver the Note in the aggregate principal amount not to exceed $6,650,000 to the
Purchaser. The Issuer agrees, upon the payment of its administrative fee in the amount of
$16,625 and upon the terms and conditions contained in this Agreement, to lend to the
Borrower the proceeds received by the Issuer from the sale of the Note.
(b) The Loan shall be made by depositing the proceeds from the initial sale of
the Note as follows: On the Closing Date, $ of the Note proceeds will be
disbursed to pay Costs of the Project, as provided in a closing memorandum signed by the
Borrower, and the remainder shall be deposited into an account held by the Purchaser (the
"Improvements Account'). Upon Purchaser's receipt of approved Disbursement Requests
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from the Borrower (in the form attached hereto as Exhibit D), the Purchaser shall advance
the remaining Note proceeds for the approved amounts to the Borrower and disburse such
proceeds to finance the Costs of the Project, provided that no more than 2% of the amount
actually advanced on the Note may be used to pay costs of issuance of the Note, and
provided further that all remaining Note proceeds shall be fully advanced and disbursed on
or before 2022.
Section 3.02. Repayment of Loan. The Borrower hereby agrees to repay the Loan by
making the following payments:
(a) The Borrower shall pay or cause to be paid, on behalf of the Issuer, to the
Owner on or before any Interest Payment Date for the Note or any other date that any
payment of interest, redemption premium, if any, or principal is required to be made in
respect of the Note pursuant to this Agreement or pursuant to Section 3.01(b) of the
Continuing Covenant Agreement, until the principal of, redemption premium, if any, and
interest on the Note shall have been fully paid or provision for the payment thereof shall
have been made in accordance with this Agreement, a sum which will enable the Issuer to
pay the amount payable on such date as principal of (whether at maturity or upon
redemption or acceleration or otherwise), redemption premium, if any, and interest on the
Note as provided in herein.
It is understood and agreed that all payments payable by the Borrower under this
Section 3.02 are assigned by the Issuer to the Owners of the Note, as their interests may
appear. The Borrower assents to such assignment. The Issuer hereby directs the Borrower,
and the Borrower hereby agrees, to pay directly to the Owners, in immediately available
funds, all payments payable by the Borrower pursuant to this Section 3.02(a). The Issuer
covenants that it will not pledge the payments payable by the Borrower under this Section
3.02 other than to secure the Note.
(b) The Borrower also shall pay or cause to be paid the reasonable fees and
expenses of the Issuer, such fees and expenses to be paid when due and payable by the
Borrower directly to the Issuer, for its own account. The Borrower also shall pay to the
Purchaser any amounts owed to the Purchaser under the Continuing Covenant Agreement.
(c) The Borrower also shall pay or cause to be paid when due and payable the
reasonable fees and expenses of the Issuer related to the Project and the issuance of the
Note, including without limitation, attorneys' fees and expenses.
(d) In the event the Borrower shall fail to make any of the payments required
in this Section 3.02, the item or installment so in default shall continue as an obligation of
the Borrower and shall bear interest at the Default Rate from the date due until the amount
in default shall have been fully paid.
Section 3.03. [Reserved.]
Section 3.04. Unconditional Obligations. The obligation of the Borrower to make the
payments required by Section 3.02 shall be absolute and unconditional. Except as expressly
provided for herein, the Borrower shall pay all such amounts without abatement, diminution or
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deduction (whether for taxes or otherwise) regardless of any cause or circumstance whatsoever
including any defense, set-off, recoupment or counterclaim that the Borrower may have or assert
against the Issuer, the Purchaser or any other Person.
Section 3.05. Prepayments of Loan. The Borrower may prepay all or any part of the
amounts required to be paid by it under Section 3.02 (and thereby cause a redemption of Note) at
the times and in the amounts provided in Section 2.10 for redemption of the Note, and in any such
case, the Borrower shall cause to be furnished to the Owners, on behalf of the Issuer, such amounts
on or prior to applicable redemption dates.
ARTICLE IV
ACQUISITION OF THE PROJECT
Section 4.01. Agreement to Undertake and Complete the Project. The Borrower
covenants and agrees to undertake and complete the Acquisition. Upon written request of the
Issuer, the Borrower agrees to make available to the Issuer (for review and copying) all the then
current Plans and Specifications. The Borrower shall obtain or cause to be obtained all necessary
permits and approvals for the Acquisition and the operation and maintenance of the Project.
The Borrower agrees to cause the Project to be completed as soon as may be practicable
and to cause all Note Proceeds to be expended no later than three years from the Issue Date. For
Costs of the Project incurred prior to receipt by the Issuer of the Note Proceeds, the Borrower
agrees to advance all funds necessary to reimburse the Issuer for such purpose. Such advances
may be reimbursed to the extent permitted by the Code.
Section 4.02. Reserved.
Section 4.03. Establishment of Completion Date and Certificate as to Completion.
Within thirty (30) days following the completion of the Project, the Borrower Representative shall
sign and deliver to the Purchaser a certificate stating that, except for amounts retained by the
Purchaser for Costs of the Project not then due and payable, or the liability for which the Borrower
is, in good faith, contesting or disputing, (a) the Project has been completed to the satisfaction of
the Borrower, and all labor, services, materials and supplies used in such Acquisition have been
paid for, and (b) the Project is suitable and sufficient for the efficient operation as a "project' (as
defined in the Act). Notwithstanding the foregoing, such certificate may state that it is given
without prejudice to any rights against third parties which exist at the date of such certificate or
which may subsequently come into being.
Section 4.04. Borrower Required to Pay Costs in Event Note Proceeds Insufficient.
If the Note Proceeds should not be sufficient to make payments of the Costs of the Project in full,
the Borrower agrees to pay directly such costs of completing the Project as may be in excess of
the Note Proceeds. THE ISSUER DOES NOT MAKE ANY WARRANTY OR
REPRESENTATION (EITHER EXPRESS OR IMPLIED) THAT THE NOTE PROCEEDS
WILL BE SUFFICIENT TO PAY ALL OF THE COSTS OF THE PROJECT OR THAT THE
PROJECT WILL BE SUITABLE FOR THE PURPOSES OF THE BORROWER. If, after
exhausting the Note Proceeds for any reason, the Borrower pays, or deposits moneys in the
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Borrower's deposit account with the Purchaser for the payment of, any portion of the Costs of the
Project pursuant to the provisions of this Section, the Borrower shall not be entitled to any
reimbursement therefor from the Issuer, nor shall it be entitled to any diminution of the amounts
payable under Section 3.02.
Section 4.05. Borrower and Issuer Representatives and Successors. At or prior to the
initial sale of the Note, the Borrower and the Issuer shall appoint a Borrower Representative and
an Issuer Representative, respectively, for the purpose of taking all actions and delivering all
certificates required to be taken and delivered by the Borrower Representative and the Issuer
Representative under the provisions of this Agreement. The Borrower and the Issuer, respectively,
may appoint alternate Borrower Representatives and alternate Issuer Representatives to take any
such action or make any such certificate if the same is not taken or made by the Borrower
Representative or the Issuer Representative. In the event any of such persons, or any successor
appointed pursuant to the provisions of this Section, should resign or become unavailable or unable
to take any action or deliver any certificate provided for in this Agreement, another Borrower
Representative or alternate Borrower Representative, or another Issuer Representative or alternate
Issuer Representative, shall thereupon be appointed by the Borrower or the Issuer, respectively. If
the Borrower or the Issuer fails to make such designation within ten (10) days following the date
when the then incumbent Borrower Representative or Issuer Representative resigns or becomes
unavailable or unable to take any such actions, the [AUTHORIZED OFFICERS] of the Borrower,
or the City Administrator of the Issuer, shall serve as the Borrower Representative or the Issuer
Representative, respectively.
Whenever the provisions of this Agreement require the Borrower's approval, require the
Borrower to take some action at the request of the Issuer or require the Issuer to take some action
at the request or direction of the Borrower, the Borrower Representative shall make such approval,
request or direction in writing unless otherwise specified in this Agreement. Any action so taken
with the written approval of or at the written direction of the Borrower Representative shall be
binding upon the Borrower and the Issuer and the Purchaser shall be authorized to rely on any such
approval or action.
Whenever the provisions of this Agreement require the Issuer's approval or require the
Issuer to take some action at the request of the Borrower, such approval shall be made or such
action shall be taken by the Issuer Representative and the Borrower and the Purchaser shall be
authorized to rely on any such approval or action.
Section 4.06. Plans and Specifications. The Borrower shall maintain a set of Plans and
Specifications at the Project which shall be available to the Issuer and the Purchaser for inspection
and examination during the Borrower's regular business hours. The Issuer and the Borrower agree
that the Borrower may supplement, amend and add to the Plans and Specifications, and the
Borrower may omit or make substitutions for components of the Project, with the approval of the
Issuer and subject to the requirements of the Continuing Covenant Agreement, including any
required consent of the Purchaser, and, provided that no such change shall be made which, after
giving effect to such change, would cause any of the representations and warranties set forth in
Article VI to be false or misleading in any material respect, or would result in a violation of the
covenant set forth in Section 10.04. If any such change would render materially incorrect or
inaccurate the description of the initial components of the Project as previously described in
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writing by the Borrower to the Purchaser, the Borrower shall deliver to the Issuer and the Purchaser
an Approving Opinion and thereafter, the Borrower, the Purchaser and the Issuer shall amend
Exhibit C to this Agreement to reflect such change. The Acquisition is subject to the approval of
the Issuer pursuant to the terms of the Lease.
ARTICLE V
CONDITIONS PRECEDENT TO PURCHASE OF NOTE
Section 5.01. Documentary Requirements. The obligation of the Purchaser to purchase
the Note is subject to the conditions precedent that the Purchaser shall have received, on or before
the Closing Date, the items listed below in this Section, each dated and in form and substance as
is satisfactory to the Purchaser. However, should the Purchaser purchase the Note prior to its
receipt of and approval of any of the following items, such purchase shall not be deemed to be a
waiver of any documentary requirement.
(a) Each of the items listed in Section 4.01 of the Continuing Covenant
Agreement.
(b) A certificate of the Governing Body of the Issuer certifying the names and
signatures of the Persons authorized to sign, on behalf of the Issuer, this Agreement and
the other Note Documents to which it is a party and the other documents to be delivered
by it hereunder or thereunder.
(c) An Opinion of Counsel to the Issuer to the effect that this Agreement and
the other Note Documents to which the Issuer is a party have been duly authorized,
executed and delivered by the Issuer and are legal, valid and binding agreements of the
Issuer enforceable against the Issuer in accordance with their terms.
(d) An Opinion of Counsel given by Bond Counsel to the effect that the Note
has been duly authorized and validly issued, that this Agreement creates a valid Lien on
the Revenues and that interest on the Note will not be included in gross income of the
Owners thereof for federal income tax purposes.
(e) A certificate of the Issuer, dated the Closing Date, stating that: (i) the
representations and warranties of the Issuer contained in this Agreement and in the other
Note Documents to which it is a party are correct on and as of the Closing Date as though
made on and as of such date; (ii) no petition by or against the Issuer has at any time been
filed under the Bankruptcy Code or under any similar law; (iii) no Default or Event of
Default has occurred and is continuing, or would result from the Issuer's execution and
performance of this Agreement or the other Note Documents to which it is a party; (iv) all
conditions precedent to the issuance of the Note have been satisfied and the Issuer has duly
executed and delivered the Note to the Purchaser.
(f) Such other documents, instruments, approvals and, if reasonably requested
by the Purchaser, certified duplicates of executed originals thereof, and opinions as the
Purchaser may reasonably request.
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Section 5.02. Incorporation by Reference. The conditions precedent contained in
Article IV of the Continuing Covenant Agreement are hereby incorporated by reference and shall
have the same force and effect as if set forth herein.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BORROWER
The Borrower represents and warrants as of the Closing Date as follows, which
representations and warranties shall survive the execution of this Agreement:
Section 6.01. Organization; Power; Qualification. The Borrower (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or
formation, (b) has the power and authority to own its Property and to carry on its businesses as
now being conducted and as currently contemplated to be conducted hereafter, and (c) is duly
qualified and authorized to do business in each jurisdiction in which the character of its Property
or the nature of its business requires such qualification and authorization.
Section 6.02. Authorization; Enforceability. The Borrower has the right, power and
authority and has taken all necessary corporate and other action to authorize the execution, delivery
and performance of this Agreement and each of the other Note Documents to which it is a party in
accordance with their respective terms. This Agreement and each of the other Note Documents to
which it is a party have been duly executed and delivered by the duly authorized officers of the
Borrower, and each such document constitutes the legal, valid and binding obligation of the
Borrower enforceable in accordance with its terms, except as such enforceability may be limited
by (a) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar
law affecting creditors' rights generally, and (b) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
Section 6.03. Noncontravention. The execution, delivery and performance by the
Borrower of this Agreement and each of the other Note Documents to which it is a party, in
accordance with their respective terms, and the transactions contemplated hereby and thereby do
not and will not (a) contravene or conflict with the Borrower's articles of incorporation, by-laws
or other organizational documents, (b) require any consent or approval of any creditor of the
Borrower, (c) violate any Applicable Law (including Regulations G, T, U or X of the Board of
Governors of the Federal Reserve System, or any successor regulations), (d) conflict with, result
in a material breach of or constitute a material default under any Contract to which the Borrower
is a party or by which it or any of its Property may be bound or (e) result in or require the creation
or imposition of any Lien upon any Property now owned or hereafter acquired by the Borrower
except Permitted Liens and such Liens, if any, expressly created by this Agreement or the other
Note Documents.
Section 6.04. Governmental Approvals. No further authorizations, consents or
approvals of Governmental Authorities are required in connection with the execution and delivery
by the Borrower of this Agreement or the other Note Documents to which the Borrower is a party
or in connection with the carrying out by the Borrower of its obligations under this Agreement or
the other Note Documents to which the Borrower is a party.
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Section 6.05. Litigation. There is no action, suit, proceeding, inquiry or investigation at
law or in equity or before or by any Governmental Authority pending, or, to the best knowledge
of the Borrower, threatened against or affecting the Borrower wherein an unfavorable decision,
ruling or finding would adversely affect (i) the transactions contemplated by, or the validity or
enforceability of, the Note Documents or (ii) the tax-exempt status of interest on the Note.
Section 6.06. Title to Properties. The Borrower has good, marketable title to or a
leasehold interest in its Property. [None of the Property of the Borwower- is subject to ally Lien,
The Borrower has complied with all obligations under all leases to
which it is a parry and under which it is in occupancy, and all such leases are in full force and
effect. The Borrower enjoys peaceful and undisturbed possession under all such leases.
Section 6.07. Absence of Defaults and Events of Default.
(a) No Default or Event of Default has occurred and is continuing.
(b) No defaults by the Borrower or any of its Affiliates exist under any
Contracts or judgments, decrees or orders, except for defaults that, singly or in the
aggregate, have not had and will not have a Material Adverse Effect (as defined in the
Continuing Covenant Agreement) or an adverse effect on the Borrower or the Borrower's
ability to perform its obligations under this Agreement or any of the other Note Documents.
Section 6.08. Income Tax Status. The Borrower is an organization described in Section
501(c)(3) of the Code, is not a "private foundation" as defined by Section 509(a) of the Code and
is exempt from federal income tax under Section 501(a) of the Code, except for taxes imposed on
unrelated business income pursuant to Section 511 of the Code. The Borrower has not received
any notice from the Internal Revenue Service that its returns are being audited or its status as an
organization described in Section 501(c)(3) of the Code is being investigated or challenged. The
Borrower is in continued compliance with all requirements of such status. The Borrower has not
taken any action or omitted to take any action, and to the best of its knowledge, knows of no action
taken or omitted to be taken by any other Person, which action, if taken or omitted, could adversely
affect the exclusion of interest on the Note from gross income for federal income tax purposes or
the exemption of such interest from State personal income taxes.
Section 6.09. Regarding the Project.
(a) The Project is suitable for or used in connection with the charitable purposes
of the Borrower, and the estimated Cost of the Project to be financed through the Loan is
not less than $6,650,000.
(b) The financing of the Project as provided under this Agreement and
commitments therefor made by the Issuer have induced the Borrower to expand or locate
its operations in the jurisdiction of the Issuer.
(c) The Borrower anticipates that upon completion of the Acquisition, the
Borrower will operate the Project as a "project" within the meaning of the Act until the
Note has been paid in full.
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(d) The Project is of the type authorized and permitted by the Act and the
Project is substantially the same in all material respects to that described in the notice of
public hearing published on October 18, 2019.
(e) The Borrower will cause all of the proceeds of the Note to be applied solely
to the payment of Costs of the Project, and not more than 5% of the Project financed with
the proceeds of the Note shall be used in any "unrelated trade or business" of the Borrower
within the meaning of Section 513(a) of the Code.
(f) The Borrower presently in good faith estimates the Costs of the Project to
equal or exceed the original principal amount of the Note.
(g) The Project will be located wholly within the City of Andover, Minnesota.
Section 6.10. Tax -Exempt Status of the Note. The Borrower has taken no action, and
has not omitted to take any action, which action or omission would in any way affect or impair the
excludability of interest on the Note from gross income of the Owners thereof for federal income
tax purposes.
(a) The Borrower covenants and agrees that, in order to assure that the interest
on the Note shall at all times be free from federal income taxation, the Borrower represents
and covenants with the Issuer and the Purchaser that it will comply with the applicable
provisions of Section 103 and Section 141 through 150 of the Code and as follows:
(i) The Project is and will continue to be leased to and operated by the
Borrower and no portion of the Project is managed by anyone other than the
Borrower or a governmental entity or an organization described in Section
501(c)(3) of the Code or pursuant to a "qualified management agreement' within
the meaning of all pertinent provisions of law, including all relevant provisions of
the Code and regulations, rulings and revenue procedures thereunder, including
Revenue Procedure 2017-13.
(ii) The Project will not be used by the Borrower in an unrelated trade
or business, determined by the application of Section 513(a) of the Code except to
an extent which does not adversely affect the tax-exempt status of the interest on
the Note.
(iii) No more than 5% of the net proceeds of the Note is to be used for
any private business use as defined in Section 141(b)(6) of the Code.
(iv) The payment of the principal of, or interest on, no more than 5% of
the net proceeds of the Note is (under the terms of the Note or any underlying
arrangement) directly or indirectly (a) secured by any interest in (i) property used
or to be used for a private business use, or (ii) payments in respect of such property,
or (b) to be derived from payments in respect of property, or borrowed money, used
or to be used for a private business use.
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(v) The aggregate authorized face amount of the Note (when increased
by any outstanding tax-exempt "qualified 501(c)(3) bonds" issued prior to 1997,
other than "qualified hospital bonds," of the Borrower, or any organization with
which the Borrower is under common management or control and is a test -period
beneficiary determined in accordance with Section 145(b) of the Code) does not
exceed $150,000,000 or, alternatively, at least 95% of the net proceeds of the Note
will be used for capital expenditures.
(vi) The weighted average maturity of the Note will not exceed the
estimated economic life of the Project financed by the Note by more than 20%, all
within the meaning of Section 147(b) of the Code.
(vii) While the Note remains outstanding, no portion of the proceeds of
the Note will be used to provide any airplane, skybox or other private luxury box,
any facility primarily used for gambling, or a store, the principal business of which
is the sale of alcoholic beverages for consumption off premises.
(viii) Not more than 2% of the proceeds of the Note will be used to finance
issuance expenses.
(ix) The Borrower agrees it will not use the proceeds of the Note in such
a manner as to cause the Note to be an "arbitrage bond" within the meaning of
Section 148 of the Code and applicable Treasury Regulations. The Borrower shall,
as applicable:
(A) maintain records identifying all "gross proceeds" and
"replacement proceeds" (as defined in Section 148(l)(6)(B) of the Code
attributable to the Note, the yield at which such gross proceeds or
replacement proceeds are invested, any arbitrage profit derived therefrom
(earnings in excess of the yield on the Note) and any earnings derived from
the investment of such arbitrage profit;
(B) make, or cause to be made as of the end of each fifth bond
year, the annual determinations of the amount, if any, of excess arbitrage
required to be paid to the United States, unless the Borrower obtains an
Opinion of Bond Counsel to the effect that such calculations need not be
made (the "Rebate Amount');
(C) pay, or cause to be paid, to the United States at least once
every fifth bond year the amount, if any, which is required to be paid to the
United States, including the last installment which shall be made no later
than 60 days after the day on which the Note is paid in full;
(D) not invest, or permit to be invested, "gross proceeds" of the
Note in any acquired nonpurpose obligations so as to deflect arbitrage
otherwise payable to the United States as a "prohibited payment' to a third
party; and
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(E) if applicable, retain all records of the determination of the
foregoing amounts until 6 years after the Note has been fully paid.
Unless the Opinion of Bond Counsel described in (B) above is provided,
the Borrower agrees that, in order to comply with this paragraph (ix), it shall
determine the Rebate Amount within 30 days after each 5th year of the anniversary
of the Closing and upon payment in full of the Note; upon request, the Borrower
shall furnish the Purchaser a certificate showing how such calculation was made.
(x) The Borrower has not leased, sold, assigned, granted or conveyed
and will not lease, sell, assign, grant or convey all or any portion of the Project or
any interest therein to the United States or any agency or instrumentality thereof
within the meaning of Section 149(b) of the Code.
(xi) In addition to the Note, no other obligations have been or will be
issued under Section 103 of the Code which are sold at substantially the same time
as the Note pursuant to a common plan of marketing and at substantially the same
rate of interest as the Note and which are payable in whole or part by the Borrower
or otherwise have with the Note any common or pooled security for the payment
of debt service thereon, or which are otherwise treated as the same "issue of
obligations" as the Note as described in Treasury Regulations Section 1.150-
(1)(c)(1);
(xii) No proceeds of the Note shall be invested in investments which
cause the Note to be federally guaranteed within the meaning of Section 149(b) of
the Code. If at any time the moneys in such funds exceed, within the meaning of
Section 149(b)(3)(B) of the Code, (i) amounts invested for an initial temporary
period until the moneys are needed for the purpose for which the Note was issued,
(ii) investments of a bona fide debt service fund, and (iii) investments of a reserve
which meet the requirement of Section 148(d) of the Code, such excess moneys
shall be invested in only those investments, which are (A) obligations issued by the
United States Treasury, (B) other investments permitted under regulations, or (C)
obligations which are (a) not issued by, or guaranteed by, or insured by, the United
States or any agency or instrumentality thereof or (b) not federally insured deposits
or accounts, all within the meaning of Section 149(b) of the Code; and
(xiii) Not otherwise use proceeds of the Note, or take or fail to take any
action within its control, the effect of which would be to impair the exemption of
interest on the Note from federal income taxation.
(xiv) Maintain such written procedures as appropriate and applicable to
ensure Borrower's principal responsibility for compliance with the post -issuance
requirements necessary to maintain the tax-exempt status of the interest on the
Note, including requirements that must be continually monitored, including (i)
monitoring the investment (pending expenditure) of Note Proceeds (and keep
detailed records thereof) in order to assure compliance with the arbitrage
requirements applicable to the Note, (ii) monitoring the expenditures of the Note
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Proceeds (and keep detailed records thereof), (iii) monitoring the use of the
Facilities in order to ensure that the Note continues to qualify as a qualified
501(c)(3) bond within the meaning of Section 145 of the Code, (iv) periodically
consulting with Bond Counsel with respect to arbitrage issues and compliance, and
(v) consulting with Bond Counsel as necessary to determine whether, and to what
extent, any change in the use or purpose of the financed facility will require any
remedial action under the relevant Treasury Regulations.
(xv) In order to qualify the Note and this Agreement under the
"governmental program" provisions of Section 1.148-1(b) of the Treasury
Regulations, the Borrower (and any "related person" thereto) will take no action
the effect of which would be to disqualify this Loan Agreement as an "acquired
program obligation" under said Section 1.148-1(b), including entering into any
arrangement, formal or informal, for the Borrower to purchase bonds or notes of
the Issuer in an amount related to the amount of the Note.
ARTICLE VII
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ISSUER
The Issuer represents, warrants, covenants and agrees as of the Closing Date that:
Section 7.01. Organization; Power; Qualification. The Issuer is a municipal
corporation duly organized and existing under and pursuant to the Constitution and laws of the
State, including the Act, and is authorized by the Act to execute and to enter into this Agreement
and the other Note Documents to which it is a parry and to undertake the transactions contemplated
herein and therein and to carry out its obligations hereunder and thereunder.
Section 7.02. Authorization of Note Documents. The Issuer has all requisite power,
authority and legal right to execute and deliver the Note Documents to which it is a parry and all
other instruments and documents to be executed and delivered by the Issuer pursuant thereto, to
perform and observe the provisions thereof and to carry out the transactions contemplated by the
Note Documents. All action on the part of the Issuer which is required for the execution, delivery,
performance and observance by the Issuer of the Note Documents has been duly authorized and
effectively taken, and such execution, delivery, performance and observation by the Issuer do not
contravene Applicable Law or any contractual restriction binding on or affecting the Issuer.
Section 7.03. Enforceability. This Agreement is, and each other Note Document to
which the Issuer is a parry when delivered will be, legal, valid and binding special obligations of
the Issuer enforceable against the Issuer in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
Section 7.04. Governmental Approvals. The Issuer has duly approved the issuance of
the Note and the Loan of the proceeds thereof to the Borrower for the Acquisition; no other
authorization or approval or other action by, and no notice to or filing with, any Governmental
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Authority is required as a condition to the performance by the Issuer of its obligations under any
Note Documents.
Section 7.05. No Default.
(a) There is no default of the Issuer in the payment of the principal of or interest
on any of its indebtedness for borrowed money or under any instrument or instruments or
agreements under and subject to which any indebtedness for borrowed money has been
incurred which does or could affect the validity and enforceability of the Note Documents
or the ability of the Issuer to perform its obligations hereunder or thereunder, and no event
has occurred and is continuing under the provisions of any such instrument or agreement
which constitutes or, with the lapse of time or the giving of notice, or both, would constitute
such a default.
(b) The Issuer is not in default under any of the provisions of the laws of the
State, where any such default would affect the issuance, validity or enforceability of the
Note or the transactions contemplated by the Note Documents to which it is a party.
Section 7.06. Obligations of Issuer. With respect to the Note, there are no other
obligations of the Issuer that have been, are being or will be (i) sold at substantially the same time,
(ii) sold pursuant to the same plan of financing, and (iii) reasonably expected to be paid from
substantially the same source of funds
Section 7.07. Noncontravention. The execution, delivery and performance of this
Agreement, the Note and each of the other Note Documents in accordance with their respective
terms do not and will not (a) contravene the Act, (b) require any consent or approval of any creditor
of the Issuer, (c) violate any Applicable Law (including Regulations G, T, U or X of the Board of
Governors of the Federal Reserve System, or any successor regulations) or (d) conflict with, result
in a material breach of or constitute a material default under any Contract to which the Issuer is a
party or by which it may be bound.
Section 7.08. Compliance with Law. In connection with the authorization, issuance and
sale of the Note, the Issuer has complied with all provisions of the Constitution and laws of the
State, including the Act.
Section 7.09. Litigation. There is no action, suit, proceeding, inquiry or investigation at
law or in equity or before or by any court, public board or body pending, or, to the best knowledge
of the Issuer, threatened against or affecting the Issuer wherein an unfavorable decision, ruling or
finding would adversely affect (i) the transactions contemplated by, or the validity or
enforceability of, the Note and the other Note Documents to which it is a party or (ii) the
tax-exempt status of interest on the Note.
Section 7.10. Security. The Issuer has not assigned or pledged and will not assign or
pledge its interest in this Agreement for any purpose other than to secure the Note. The Note
constitutes the only bonds or other obligations of the Issuer in any manner payable from this
Agreement, and except for the Note, no bonds or other obligations have been or will be issued on
the basis of this Agreement.
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Section 7.11. Blue Sky. No representation is made herein as to compliance with the
securities or "blue sky" laws of any jurisdiction.
Section 7.12. Pending Legislation and Decisions. There is no amendment, or to the
knowledge of the Issuer, proposed amendment to the Constitution of the State or any State law or
any administrative interpretation of the Constitution of the State or any State law, or any legislation
that has passed either house of the legislature of the State, or any judicial decision interpreting any
of the foregoing, the effect of which will materially adversely affect the issuance of the Note, the
security for the Note or the Issuer's obligations hereunder or under any of the other Note
Documents, or the Issuer's ability to repay when due its obligations under this Agreement, the
Note and the other Note Documents.
Section 7.13. Tax Covenants of the Issuer.
(a) The Issuer covenants and agrees as follows: (i) the Issuer will not
knowingly take or permit any action to be taken that would adversely affect the exclusion
from gross income for federal income tax purposes of the interest on the Note and, if it
should take or permit any such action, the Issuer shall take all lawful actions within its
power and control to rescind such action promptly upon having knowledge thereof; and
(ii) the Issuer will take such action or actions, including amending this Agreement, as may
be reasonably necessary in the opinion of Bond Counsel to comply fully with all Applicable
Laws, policies, procedures or other official statements promulgated or, to the extent
necessary in the opinion of Bond Counsel, proposed, by the United States Treasury or the
Internal Revenue Service pertaining to obligations described in Section 103 of the Code.
(b) The Issuer covenants and agrees that it has not taken or permitted to be taken
any action which will cause the interest on the Note to become includable in gross income
for federal income tax purposes; provided that none of the covenants and agreements
contained in this Section 7.13 will require the Issuer to enter an appearance or intervene in
any administrative, legislative or judicial proceeding in connection with any changes in
Applicable Laws or in connection with any generally applicable decisions of any
Governmental Authority affecting the exclusion from gross income for federal income tax
purposes of interest on the Note; and provided further that the Issuer's responsibilities, if
any, pursuant to this paragraph shall be limited to actions within its control.
ARTICLE VIII
MAINTENANCE AND TAXES
Section 8.01. Borrower's Obligations to Maintain and Repair. The Borrower agrees
that during the term of this Agreement it will keep and maintain all of its material properties and
equipment (including the Facilities) necessary to the operation of its business in good condition,
repair and working order, ordinary wear and tear excepted, and will make or cause to be made
from time to time all repairs thereto (including external and structural repairs) and renewals and
replacements thereto necessary for the operation thereof.
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Section 8.02. Taxes and Other Charges. The Borrower will promptly pay and discharge
or cause to be promptly paid and discharged, before the same become delinquent, all taxes,
assessments, governmental charges or levies and all utility and other charges incurred in the
operation, maintenance, use, occupancy and upkeep of the Facilities imposed upon it or in respect
of the Facilities before the same shall become in default, as well as all lawful claims which, if
unpaid, might become a lien or charge upon the Facilities or any part thereof, except such that are
contested in good faith by the Borrower for which the Borrower has maintained adequate reserves.
ARTICLE IX
INSURANCE, EMINENT DOMAIN AND DAMAGE AND DESTRUCTION
Section 9.01. Insurance. The Borrower will, during the term of this Agreement and at all
times while the Note is Outstanding, continuously maintain casualty and liability insurance on the
Facilities in amounts and covering such risks as are customarily insured against by businesses of
like size and type, paying as the same become due all premiums in respect thereof. In addition the
Borrower shall comply, or cause compliance, with applicable worker's compensation laws of the
State.
Section 9.02. Provisions Respecting Eminent Domain; Damage; Destruction. In case
of a taking or proposed taking of all or any part of the Facilities or any right therein by Eminent
Domain, the party hereto upon which notice of such taking is served shall give prompt written
notice to the other parties hereto. Each such notice shall describe generally the nature and extent
of the taking or proposed taking and any proceedings or negotiations related thereto. If at any time
while the Note is Outstanding, the Facilities, or any material portion thereof, shall be damaged or
destroyed by fire, flood, windstorm or other casualty, or title to, or the temporary use of, the
Facilities, or any material portion thereof, shall have been taken by the power of Eminent Domain,
the Borrower (unless it shall have exercised its option to prepay the Note in whole) shall cause the
Net Proceeds or an amount equal thereto to be used for the repair, reconstruction, restoration or
improvement of the Facilities or the redemption of the Note, or any combination thereof. In case
of any damage to or destruction of all or any part of the Facilities exceeding $50,000, the Borrower
shall give prompt written notice thereof to the Issuer and the Purchaser. Notwithstanding the
above, the Borrower shall comply with the terms of the Continuing Covenant Agreement relating
to the use of Net Proceeds.
ARTICLE X
SPECIAL COVENANTS
Section 10.01. Access to the Facilities and Inspection. The Issuer and the Purchaser,
and their respective agents and employees, shall have the right, at all reasonable times during
normal business hours of the Borrower upon the furnishing of reasonable notice to the Borrower
under the circumstances, to enter upon and examine and inspect the Project and to examine and
copy the books and records of the Borrower insofar as such books and records relate to Costs of
the Project or the Note Documents.
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Section 10.02. Further Assurances and Corrective Instruments. Subject to the
provisions of this Agreement, the Issuer and the Borrower agree that they will, from time to time,
execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such
supplements and amendments hereto and such further instruments as may reasonably be required
for carrying out the intention or facilitating the performance of this Agreement or the transactions
contemplated hereby.
Section 10.03. Recording and Filing; Other Instruments. The Borrower authorizes
Purchaser to cause this Agreement and all necessary financing statements (including continuation
statements) to be recorded and filed in such manner and in such places as may be required by law
to fully preserve and protect the security of the Owners and the rights of the Purchaser and to
perfect any security interest created by this Agreement. The Borrower authorizes Purchaser to file
continuation statements as required by law in order fully to preserve and to protect the rights of
the Purchaser or the Issuer in the assignment of certain rights of the Issuer under this Agreement.
The Borrower and the Issuer shall execute and deliver all instruments and shall furnish all
information and evidence deemed necessary or advisable in order to enable the Purchaser to
comply with this Section. The Borrower authorizes the Purchaser to file and re -file and record and
re-record or to cause to be filed and re -filed and recorded and re-recorded all instruments required
to be filed and re -filed and recorded and re-recorded and to continue or cause to be continued the
liens of such instruments for so long as the Note shall be Outstanding and any other amounts
remain due and payable under the Continuing Covenant Agreement.
Section 10.04. Tax -Exempt Status. The Borrower covenants and agrees that it has not
taken and will not take or cause to be taken, and has not omitted and will not omit or cause to be
omitted, any action which will result in interest paid on the Note being included in gross income
of the Owners of the Note for the purposes of federal income taxation.
The Borrower covenants and agrees that it will take or cause to be taken all required actions
necessary to preserve the exclusion from gross income for federal income tax purposes of interest
on the Note; and the Issuer covenants and agrees that it will take or cause to be taken all required
actions to preserve the exclusion from gross income for federal income tax purposes of interest on
the Note; provided that the Issuer has no obligation or responsibility to direct or cause the Borrower
to take any action.
Section 10.05. Indemnity Against Claims. The Borrower will pay and discharge and
will indemnify and hold harmless the Issuer and the Purchaser, and their respective directors,
members, officers, employees and agents, from any taxes, assessments, impositions and other
charges in respect of the Project. If any such claim is asserted, or any such lien or charge upon
payments, or any such taxes, assessments, impositions or other charges, are sought to be imposed,
the Issuer or the Purchaser, as the case may be, will give prompt written notice to the Borrower;
provided, however, that the failure to provide such notice will not relieve the Borrower of the
Borrower's obligations and liability under this Section and will not give rise to any claim against
or liability of the Issuer or the Purchaser. The Borrower shall have the sole right and duty to
assume, and shall assume, the defense thereof, with counsel reasonably acceptable to the Person
on behalf of whom the Borrower undertakes a defense, with full power to litigate, compromise or
settle the same in its sole discretion.
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Section 10.06. Release and Indemnification. The Borrower shall at all times protect,
indemnify and hold the Issuer and the Governing Body, and their respective members, directors,
officers, employees, attorneys and agents, harmless against any and all liability, losses, damages,
costs, expenses, taxes, causes of action, suits, claims, demands and judgments of any nature arising
from or in connection with the Acquisition or the use or occupancy of the Facilities, including all
claims or liability resulting from, arising out of or in connection with the acceptance or
administration of the Note Documents or the trusts thereunder or the performance of duties under
the Note Documents or any loss or damage to property or any injury to or death of any Person that
may be occasioned by any cause whatsoever pertaining to the Project or the use thereof, including
any lease thereof or assignment of any interest in this Agreement, such indemnification to include
the reasonable costs and expenses of defending itself or investigating any claim of liability and
other reasonable expenses and attorneys' fees incurred by the Issuer and the Governing Body, and
their respective members, directors, officers, employees, attorneys and agents, in connection
therewith, provided that the benefits of this Section shall not inure to any Person other than the
Issuer, the Governing Body, and their respective members, directors, officers, employees,
attorneys and agents, and provided further that such loss, damage, death, injury, claims, demands
or causes shall not have resulted from the gross negligence or willful misconduct of the Issuer, the
Governing Body or such members, directors, officers, employees, attorneys and agents. The
obligations of the Borrower under this Section shall survive the termination of this Agreement.
Section 10.07. Non -Arbitrage Covenant.
(a) The Borrower covenants that it will (i) not take, or fail to take, any action
or make any investment or use of the proceeds of the Note that would cause the Note to be
an "arbitrage bond" within the meaning of Section 148 of the Code and (ii) comply with
the requirements of Section 148 of the Code.
(b) In the event that all of the proceeds of the Note, including the investment
proceeds thereof, are not expended in a manner so as to qualify for an exemption from
arbitrage rebate, or if for any other reason a rebate is payable to the United States pursuant
to Section 148 of the Code, the Borrower shall calculate, or cause to be calculated, the
Rebate Amount to the United States of America, as described in the Tax Certificate. The
Borrower agrees to pay the amount so calculated, together with supporting documentation,
to the Purchaser so as to permit the Purchaser to pay such rebate to the United States of
America at the times required by the Code. The amount paid by the Borrower to the
Purchaser shall be deposited into a special fund designated as the Rebate Fund, which shall
be created and maintained in accordance with the terms of the Tax Certificate. The
Borrower shall maintain or cause to be maintained records of the determinations of the
rebate, if any, pursuant to this Section 10.07(b) until six (6) years after the retirement of
the Note. This Section 10.07(b) shall be construed in accordance with Section 148(f) of
the Code, including any applicable tax regulations promulgated under the Code. Nothing
contained in this Agreement shall be interpreted or construed to require the Issuer to pay
any applicable rebate, such obligation being the sole responsibility of the Borrower. The
Borrower shall pay all fees, costs and expenses associated with calculation of the Rebate
Amount and upon request from the Issuer provide the Issuer with a copy of such
calculation. The Issuer covenants that, if so requested by the Borrower, it shall execute
any form required to be signed by an issuer of tax-exempt bonds in connection with the
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payment of any rebate or the recovery of overpayment of any rebate amount under the
Code (including Internal Revenue Service Form 8038-T and Internal Revenue Service
Form 8038-R). The Borrower shall supply all information required to be stated in such
form and shall prepare such form. Except for the execution and delivery of such form upon
timely presentation by the Borrower, the Issuer shall have no responsibility for such form
or the information stated thereon.
Section 10.08. Notice of Determination of Taxability. Promptly after the Borrower first
becomes aware of the occurrence of a Determination of Taxability or an event that could trigger
the occurrence of a Determination of Taxability, the Borrower shall give written notice thereof to
the Issuer and the Purchaser.
Section 10.09. Duties and Obligations. The Borrower covenants and agrees that it will
fully and faithfully perform all the duties and obligations that the Issuer has covenanted and agreed
in this Agreement to cause the Borrower to perform and any duties and obligations that the
Borrower is required to perform. The foregoing shall not apply to any duty or undertaking of the
Issuer that by its nature cannot be delegated or assigned.
Section 10.10. Financial Statements. The Borrower shall, upon request, deliver to the
Purchaser and the Issuer as soon as practicable and in any event within 150 days after the end of
each Fiscal Year, the audited financial statements of the Borrower for such Fiscal Year.
Section 10.11. Compliance with Laws. The Borrower shall comply with all Applicable
Laws.
Section 10.12. Maintenance of Existence. The Borrower agrees that it will maintain its
organizational existence, will not dissolve or otherwise dispose of all or substantially all of its
Property and will not consolidate with or merge into another Person or permit one or more other
Persons to consolidate with or merge into it, except in strict compliance with the terms of
Applicable Law and the Continuing Covenant Agreement.
Section 10.13. IRS Audit Expenses. The Borrower agrees to pay any reasonable costs
incurred by the Issuer or the Purchaser as a result of the Issuer's or the Purchaser's compliance
with an audit, random or otherwise, by the Internal Revenue Service or the Minnesota Department
of Revenue with respect to the Note or the Project.
Section 10.14. Reports to Issuer. Annually, not later than March 1, in every year while
any portion of the Note remains Outstanding, the Borrower agrees to provide a report to the Issuer
documenting the then -outstanding principal amount of the Note. This provision cannot be
enforced by the Purchaser.
ARTICLE XI
ASSIGNMENT, LEASE AND SALE
Section 11.01. Restrictions on Transfer of Issuer's Rights. The Issuer agrees that,
except for the assignment of certain of its rights, title and interests under this Agreement to the
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Purchaser, it will not during the term of this Agreement sell, assign, transfer or convey its rights,
title and interests in this Agreement except as provided in Section 11.02.
Section 11.02. Assignment of Agreement by the Borrower or Lease or Sale of Project.
All or a portion of the rights, duties and obligations of the Borrower under this Agreement may be
assigned by the Borrower and the Project may be leased or sold as a whole or in part by the
Borrower, without having to obtain the consent of the Issuer; provided that unless permitted in the
immediately succeeding sentence, the Borrower shall not be released from its obligations
hereunder in connection with any such assignment, lease or sale. Upon the assignment of all of
the Borrower's rights, duties and obligations under this Agreement or the lease or sale of the
Project as a whole, the Purchaser may execute a release of the Borrower from its obligations
hereunder and under the other Note Documents and all references to the "Borrower" in this
Agreement, the other Note Documents and the Note shall mean the assignee, lessee or purchaser
if (i) such assignee, lessee or purchaser assumes the Borrower's obligations hereunder in writing,
(ii) such assignee, lessee or purchaser has a consolidated tangible net worth (after giving effect to
such assignment, lease or sale) of not less than the consolidated tangible net worth of the Borrower
and its consolidated subsidiaries immediately prior to such assignment, lease or sale; (iii) no Event
of Default has occurred and is continuing hereunder, and (iv) the Purchaser has consented in
writing to such release. Prior to any assignment, lease or sale pursuant to this Section, the
Borrower shall have caused to be delivered to the Issuer and the Purchaser, an Approving Opinion,
satisfactory in form and substance to each of them. For purposes of this Section, the term
"consolidated tangible net worth" means the difference obtained by subtracting total consolidated
liabilities (not including as a liability any capital or surplus item) from total consolidated tangible
assets of the Borrower and all of its consolidated Affiliates, computed in accordance with GAAP.
ARTICLE XII
EVENTS OF DEFAULT
Section 12.01. Events of Default. The term "Event of Default" shall mean any one or
more of the following events:
(a) Failure by the Borrower to make any payment required to be paid pursuant
to Section 3.02;
(b) The occurrence of an Event of Default under the Continuing Covenant
Agreement;
(c) Any representation or warranty made or deemed made by or on behalf of
the Issuer or the Borrower contained in this Agreement or in any instrument furnished in
compliance with or in reference to this Agreement proves false or misleading in any
material respect as of the date of the making or furnishing thereof,
(d) [Intentionally omitted;]
(e) Failure by the Borrower to observe or perform any of its other covenants,
conditions, payments or agreements under this Agreement (other than as described in
Sections 12.01 (a), 12.01(b), or 12.01(c)) for a period of thirty (30) days after written notice,
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specifying such failure and requesting that it be remedied, is given to the Borrower by the
Issuer or the Purchaser;
(f) The Borrower shall (i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, assignee, sequestrator, trustee, liquidator or
similar official of the Borrower of all or a substantial part of its property, (ii) admit in
writing its inability, or be generally unable, to pay its debts as such debts become due,
(iii) make a general assignment for the benefit of its creditors, (iv) commence a voluntary
case under the Bankruptcy Code (as now or hereafter in effect), (v) file a petition seeking
to take advantage of any other federal or state law relating to bankruptcy, insolvency,
reorganization, arrangement, winding -up or composition or adjustment of debts, (vi) fail
to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition
filed against the Borrower in an involuntary case under the Bankruptcy Code, or (vii) take
any corporate action for the purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the application or
consent of the Borrower, in any court of competent jurisdiction, seeking (i) the liquidation,
reorganization, arrangement, dissolution, winding -up, composition or adjustment of debts
of the Borrower, and such case or proceeding is not dismissed within 90 days, (ii) the
appointment of a trustee, receiver, custodian, assignee, sequestrator, liquidator or similar
official of the Borrower or of all or any substantial part of its assets, and such case or
proceeding is not dismissed within 90 days, or (iii) similar relief in respect of the Borrower
under any law relating to bankruptcy, insolvency, reorganization, arrangement,
winding -up, composition or adjustment of debts or an order for relief against the Borrower
shall be entered in an involuntary case under the Bankruptcy Code.
Section 12.02. Rights and Remedies.
(a) Upon the occurrence of an Event of Default, the Purchaser (i) may by notice
to the Issuer and the Borrower, declare the obligations of the Issuer under the Note and the
obligations of the Borrower hereunder, under the Loan and under the Continuing Covenant
Agreement to be immediately due and payable, and the same shall thereupon become
immediately due and payable (provided that, the obligations of the Issuer and the Borrower
shall be and become automatically and immediately due and payable without such notice
upon the occurrence of an Event of Default described in Section 12.01(f) or (g)), without
demand, presentment, protest or further notice of any kind, all of which are hereby
expressly waived by the Issuer and the Borrower; (ii) may cure any default, event of default
or event of nonperformance under this Agreement or any of the other Note Documents (in
which event the Borrower shall reimburse the Purchaser therefor pursuant to the
Continuing Covenant Agreement); (iii) may, subject to payments due under the Lease,
exercise its banker's lien or right of set off, (iv) may proceed to protect its rights by suit in
equity, action at law or other appropriate proceedings, whether for specific performance of
any covenant or agreement of the Issuer or the Borrower herein contained or in and of the
exercise of any power or remedy granted to the Purchaser hereunder or under any of the
Note Documents and/or (v) may exercise any other rights or remedies available under any
Note Document, any other agreement or at law or in equity. The rights and remedies of
the Purchaser specified herein are for the sole and exclusive benefit, use and protection of
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the Purchaser, and the Purchaser is entitled, but shall have no duty or obligation to the
Issuer, the Borrower or otherwise, (A) to exercise or to refrain from exercising any right or
remedy reserved to the Purchaser, or (B) to cause any other parry to exercise or to refrain
from exercising any right or remedy available to it under any of the Note Documents.
(b) From and after the occurrence of an Event of Default, all amounts owing to
the Purchaser hereunder, under the Note or under the other Note Documents shall accrue
interest daily at the Default Rate. Interest accruing at the Default Rate shall be due and
payable on demand.
(c) If the Purchaser shall have elected in its sole discretion the remedy set forth
in Section 12.02(a)(i), the Issuer and the Borrower shall immediately pay all amounts
outstanding hereunder, under the Note and under the other Note Documents.
Section 12.03. Application of Moneys. All of the moneys realized through the exercise
of the remedies provided in Section 12.02 shall be used to pay principal and Purchase Price of and
interest on the Note then due or overdue and costs incurred in the collection thereof (including
reasonable attorneys' fees). If the available moneys are not sufficient on any payment date to pay
principal and Purchase Price of and interest on the Note then due or overdue and costs incurred in
the collection thereof (including reasonable attorneys' fees), they shall be applied first to the
payment of costs incurred in the collection thereof (including reasonable attorneys' fees), second
to interest then due on the Note, in the order of maturity of the installments of such interest, third
to the payment of the unpaid principal or Purchase Price of the Note which shall have become due,
by reason of maturity, redemption, acceleration or otherwise and, fourth to the payment of any
other amounts owed by the Borrower to the Purchaser pursuant to the Note Documents.
Section 12.04. No Waiver; Remedies. No failure on the part of the Purchaser to exercise,
and no delay in exercising, any right, power or privilege under this Agreement shall operate as a
waiver of such right, power or privilege; nor shall any single or partial exercise of any right, power
or privilege under this Agreement preclude any other further exercise of such right, power or
privilege or the exercise of any other right, power or privilege. The rights and remedies herein
provided are cumulative and not exclusive of any rights or remedies provided by law or which the
Purchaser would otherwise have.
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Amendments and Waivers. No amendment or waiver of any provision
of this Agreement nor consent to any departure by the Borrower or the Issuer from any such
provision shall in any event be effective unless the same shall be in writing and signed by the
Purchaser. Any such waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given. In the event any agreement contained in this Agreement should
be breached by the Borrower or the Issuer and thereafter waived by the Purchaser, such waiver
shall be limited to the particular breach so waived for the specific period set out in such waiver
and such waiver shall not constitute a waiver of such breach for any other period and shall not
waive any other or similar breach hereunder.
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Section 13.02. Execution in Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the
same instrument.
Section 13.03. Notices. Except as otherwise provided herein, all notices, approvals,
consents, requests, and other communications hereunder shall be in writing and shall be deemed
to have been given when the writing is delivered if given or delivered by hand, overnight delivery
service or facsimile transmitter (with confirmed receipt) to the address or facsimile number set
forth below and shall be deemed to have been given on the date three days after being deposited
in the mail, if mailed, by first-class, registered or certified mail, postage prepaid, addressed as set
forth below. Where required herein, notice shall be given by telephone, and promptly confirmed
in writing, and shall be deemed given when given by telephone to the telephone numbers set forth
below. The Issuer, the Borrower, and the Purchaser may, by written notice given hereunder,
designate any different addresses, phone numbers and facsimile numbers to which subsequent
notices, certificates, approvals, consents, requests or other communications shall be sent.
To the Issuer: City of Andover, Minnesota
1685 Crosstown Blvd NW
Andover, MN 55304-2612
Attention: City Administrator
Telephone: 763-755-5100
Facsimile:
To the Borrower: Young Men's Christian Association of the Greater
Twin Cities
651 Nicollet Mall, Ste 500
Minneapolis, MN 55402
Attention: Chief Financial and Administrative
Officer
Telephone: 612-465-0585
Facsimile: 612-623-1006
To the Purchaser: PNC Bank, National Association
411 East Wisconsin Avenue, Suite 400
Milwaukee, WI 53202
Attention: Emily Alwood
Telephone: 414-270-7951
Facsimile: 312-338-8152
Section 13.04. Severability. If any provision of this Agreement is held to be in conflict
with any applicable statute or rule of law or is otherwise held to be unenforceable for any reason
whatsoever, such circumstances shall not have the effect of rendering the other provisions herein
contained invalid, inoperative, or unenforceable to any extent whatsoever. The invalidity of any
one or more phrases, sentences, clauses or Sections of this Agreement shall not affect the
remaining portions of this Agreement or any part thereof.
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Section 13.05. Payments Due on Non -Business Days. In any case where the date of
maturity of interest on or redemption premium, if any, or principal of the Note or the date fixed
for redemption or purchase of the Note shall not be a Business Day, then payment of such Purchase
Price, interest, redemption premium or principal, unless otherwise provided herein, need not be
made on such date but shall be made on the immediately succeeding Business Day, with the same
force and effect as if made on the date of maturity or the date fixed for redemption, and, in the case
of such payment, no interest shall accrue for the period from and after such date.
Section 13.06. Liability of the Purchaser. Neither the Purchaser nor any of its officers,
directors, employees or agents shall be liable or responsible for any of the following: (i) the use
that may be made of the Note Proceeds, the Loan or any amounts made available by the Purchaser
hereunder or for any acts or omissions of the Issuer or the Borrower in connection therewith; or
(ii) the validity, sufficiency or genuineness of documents, or of any endorsement(s) thereon, even
if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent
or forged unless caused by Purchaser or its officers, directors, employees or agents. In furtherance
and not in limitation of the foregoing, the Purchaser may accept documents that appear on their
face to be in order, without responsibility for further investigation, regardless of any notice or
information to the contrary.
Section 13.07. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State.
Section 13.08. Captions. The captions or headings in this Agreement are for convenience
only and in no way define, limit or describe the scope or intent of any provisions or Sections of
this Agreement.
Section 13.09. Successors and Assigns. This Agreement is a continuing obligation and
shall be binding upon and inure to the benefit of the Issuer, the Borrower, the Purchaser and their
respective successors, endorsees and assigns (but no other Person shall have any benefit, right or
interest under or because of this Agreement), except that neither the Issuer nor the Borrower may
assign or transfer its rights or obligations hereunder without the prior written consent of the
Purchaser.
Section 13.10. Complete and Controlling Agreement. This Agreement and the other
Note Documents completely set forth the agreements among the Issuer, the Purchaser and the
Borrower and fully supersede all prior agreements, both written and oral, among the Purchaser,
the Issuer and the Borrower relating to all matters set forth herein and in the Note Documents.
Section 13.11. Contractual Interpretation. The parties acknowledge that they have read
and fully understand the terms of this Agreement, have consulted with such attorneys, accountants,
advisors, or other professionals as they have deemed appropriate prior to executing this Agreement
with adequate opportunity and time for review thereof, and are fully aware of its contents and of
its legal effect. Accordingly, neither this Agreement nor any ambiguity herein shall be construed
against any party on the grounds that such party drafted this Agreement and instead, this
Agreement shall be interpreted as though drafted equally by all parties.
34
121018180
Section 13.12. Electronic Signatures. The parties agree that the electronic signature of
a party to this Agreement shall be as valid as an original signature of such party and shall be
effective to bind such parry to this Agreement. The parties agree that any electronically signed
document (including this Agreement) shall be deemed (i) to be "written" or "in writing," (ii) to
have been signed and (iii) to constitute a record established and maintained in the ordinary course
of business and an original written record when printed from electronic files. Such paper copies
or "printouts," if introduced as evidence in any judicial, arbitral, mediation or administrative
proceeding, will be admissible as between the parties to the same extent and under the same
conditions as other original business records created and maintained in documentary form. Neither
parry shall contest the admissibility of true and accurate copies of electronically signed documents
on the basis of the best evidence rule or as not satisfying the business records exception to the
hearsay rule. For purposes hereof, "electronic signature" means a manually signed original
signature that is then transmitted by electronic means; "transmitted by electronic means" means
sent in the form of a facsimile or sent via the internet as a "pdf' (portable document format) or
other replicating image attached to an e mail message; and, "electronically signed document"
means a document transmitted by electronic means and containing, or to which there is affixed, an
electronic signature.
Section 13.13. Third Party Beneficiaries. The Owners shall be third party beneficiaries
of this Agreement, and as such also agree and contract with the parties hereto to carry out all of
their obligations hereunder.
Section 13.14. Limitation of Issuer's Liability. It is understood and agreed by the
Borrower and the Purchaser that no covenant of the Issuer herein shall give rise to a pecuniary
liability of the Issuer or a charge against its general credit, or taxing powers. It is further
understood and agreed by the Borrower and the Purchaser that the Issuer shall incur no pecuniary
liability hereunder, and shall not be liable for any expenses related hereto, including administrative
expenses and fees and disbursements of the Issuer's attorney, Bond Counsel and fiscal consultant
retained in connection therewith, all of which expenses the Borrower agrees to pay.
Section 13.15. Issuer's Attorneys' Fees and Costs. If, notwithstanding the provisions
of Section 13.14 hereof, the Issuer incurs any expense, or suffers any losses, claims or damages,
or incurs any liabilities in connection with the transaction contemplated by this Agreement, the
Borrower will indemnify and hold harmless the Issuer from the same and will reimburse the Issuer
for any reasonable legal or other expenses incurred by the Issuer in relation thereto. The Borrower
shall also reimburse the Issuer for all other costs and expenses, including without limitation
reasonable attorneys' fees, paid or incurred by the Issuer in connection with (i) the discussion,
negotiation, preparation, approval, execution and delivery of this Agreement, the Note, and the
documents and instruments related hereto or thereto; (ii) any amendments or modifications hereto
or to the Note, and any document, instrument or agreement related hereto or thereto, and the
discussion, negotiation, preparation, approval, execution and delivery of any and all documents
necessary or desirable to effect such amendments or modifications; and (iii) the enforcement by
the Issuer during the term hereof or thereafter of any of the rights or remedies of the Issuer
hereunder or under the Note, or any document, instrument or agreement related hereto or thereto,
including costs and expenses of collection following an Event of Default, whether or not suit is
filed with respect thereto.
35
12101818v3
Section 13.16. Release. The Borrower hereby acknowledges and agrees that the Issuer
shall not be liable to the Borrower, and hereby releases and discharges the Issuer from any liability,
for any and all losses, costs, expenses (including attorneys' fees), damages, judgments, claims and
causes of action, paid, incurred or sustained by the Borrower as a result of or relating to any action,
or failure or refusal to act, on the part of the Purchaser with respect to this Agreement or the
documents and transactions related hereto or contemplated hereby, including the exercise by the
Purchaser of any of its rights or remedies pursuant to Article VI, the Note, or any collateral security
documents. The Borrower's release of the Issuer pursuant to the preceding sentence does not
extend to the Purchaser following the assignment of the Issuer's rights to the Purchaser hereunder.
[Remainder of page intentionally left blank]
36
121018180
IN WITNESS WHEREOF, the parties hereto have caused this Financing Agreement to be
duly executed and delivered by their respective officers thereunto duly authorized as of the date
first above written.
CITY OF ANDOVER, MINNESOTA
By
Julie Trude
Mayor
By
James Dickinson
City Administrator
[Signatures continued on following page]
S-1
12101818x3
[Signature page to Financing Agreement]
YOUNG MEN'S CHRISTIAN ASSOCIATION
OF THE GREATER TWIN
CITIES
By
Name: Karen Larson
Title: Chief Financial and Administrative
Officer
[Signatures continued on following page]
S-2
121018180
[Signature page to Financing Agreement]
PNC BANK, NATIONAL ASSOCIATION, as
Purchaser
By
Name
Title
a]
121018180
EXHIBIT A
INTEREST RATE PROVISIONS
Section 1.01. Definitions. In addition to words and terms defined elsewhere in the
Agreement, for the purposes of calculating the interest rate on the Note, the following words and
terms as used in the Agreement, the recitals thereto and this Exhibit A shall have the following
meanings unless the context or use clearly indicates another or different meaning or intent.
"Note Interest is Taxable" means that interest paid or to be paid on a Note is or will be
includable for federal income tax purposes in the gross income of the Purchaser or any other Owner
thereof, but excluding the inclusion of interest on such Note as an item of tax preference for
purposes of the calculation of an alternative minimum tax imposed on the Purchaser or such other
Owner.
"Determination of Taxability" means (a) any determination, decision, decree or advisement
by the Commissioner of Internal Revenue, or any District Director of Internal Revenue or any
court of competent jurisdiction to the effect that Note Interest is Taxable, or (b) the delivery to the
Purchaser or any Owner of an Opinion of Counsel, delivered by Note Counsel, to the effect that
Note Interest is Taxable. A Determination of Taxability also shall be deemed to have occurred on
the first to occur of the following:
(i) the date when the Borrower files any statement, supplemental statement, or
other tax schedule, return or document, which discloses that Note Interest is Taxable;
(ii) the effective date of any federal legislation enacted or federal rule or
regulation promulgated after the date of this Agreement which has the effect that Note
Interest is Taxable; or
(iii) if upon sale, lease or other deliberate action within the meaning of Treas.
Reg. § 1.141-2(d), the failure to receive an Approving Opinion.
"Fixed Rate" means a per annum rate of interest equal to [%
"Interest Payment Date" means (a) the first Business Day of each calendar month; (b) for
the Note subject to redemption in whole or in part on any date, the date of such redemption and
(c) the Maturity Date.
"Maximum Federal Corporate Tax Rate" means the maximum rate of income taxation
imposed on corporations pursuant to Section I l(b) of the Code, as in effect from time to time or,
if as a result of a change in the Code the rate of income taxation imposed on corporations generally
shall not be applicable to the Purchaser, the maximum statutory rate of federal income taxation
which could apply to the Purchaser. As of the Issue Date, the Maximum Federal Corporate Tax
Rate is 21%.
"Maximum Lawful Rate" means the maximum, non -usurious, lawful rate of interest that
may be contracted for, charged or received in connection with the relevant obligation under
A -I
121018180
applicable law without regard to any filing made by a lender with respect to notice of rates in
excess of any statutory or regulatory threshold interest rate.
"Taxable Date" means the date on which interest on the Note is first includable in gross
income of an Owner (including any previous Owner) thereof as a result of a Determination of
Taxability.
"Taxable Rate" means, for any date of determination, the rate of interest per annum equal
to the product of the interest rate on the Note then in effect multiplied by the quotient of (a) one
divided by (b) one minus the then current Maximum Federal Corporate Tax Rate in effect on the
date of calculation.
Section 1.02. Interest Rate on the Note. The interest rate on the Note shall be calculated
as follows:
(a) General. The Note shall bear interest from the Issue Date, until paid, at the
rate set forth herein (computed on the basis of a 360 -day year (consisting of twelve 30 -day
months)).
(b) InterestAccrual. Interest accrued on the Note shall be paid on each Interest
Payment Date (or, if such day is not a Business Day, the next succeeding Business Day)
commencing on the first Interest Payment Date following the Issue Date. The interest rate
on the Note will be determined as provided in this Exhibit A except that no rate shall exceed
the Maximum Lawful Rate.
(c) Fixed Rate. The Note shall bear interest at the Fixed Rate.
(d) Determination of Rate Conclusive. The determination of the interest rate
on the Note, and its calculation of the amount of interest due for any period, by the
Purchaser shall be conclusive and binding upon the Issuer, the Borrower, and the Owners
absent manifest error.
(e) No Liability. In determining the interest rate or rates that the Note shall
bear as provided in this Section, the Purchaser shall not have any liability to the Issuer, the
Borrower or any Owner except for Purchaser's gross negligence or willful misconduct.
(f) Adjustments to Interest Rates. Notwithstanding anything to the contrary
herein, (i) from and after any Taxable Date, the interest rate on the Note shall be established
at a rate equal to the Taxable Rate, and (ii) subject to the interest rate limitations of
Section 1.02(b) of this Exhibit A, upon the occurrence and continuation of any Event of
Default, from and after the effective date of such Event of Default, the interest rate on the
Note shall be established at a rate equal to the Default Rate. In the event that more than
one of a Taxable Date and an Event of Default have occurred, the interest rate on the Note
shall be established at a rate equal to the greatest of (A) the Default Rate, if any Event of
Default has occurred, (B) the Taxable Rate, if a Taxable Date has occurred, and (C) the
interest rate that otherwise would be applicable to the Note but for the provisions of this
paragraph.
FEW
121018180
(g) Excess Interest. Notwithstanding anything in this Agreement to the
contrary, if the rate of interest on the Note exceeds the Maximum Lawful Rate for such
Note, then (i) such Note shall bear interest at the Maximum Lawful Rate and (ii) interest
calculated at the rate equal to the difference between (A) the rate of interest for such Note
as calculated pursuant to this Agreement and (B) the Maximum Lawful Rate (the "Excess
Interest') shall be deferred until such date as the Note bears interest at an interest rate below
the Maximum Lawful Rate, as calculated pursuant to Section 1.02 of this Exhibit A, at
which time Excess Interest shall be payable with respect to such Note in amounts that,
when combined with the then -current interest due on the Note, do not exceed payment at
the Maximum Lawful Rate. Payments of deferred Excess Interest shall no longer be due
and payable upon the earlier to occur of the date on which the Note is tendered for purchase
in accordance with the terms hereof and are so paid or such Note is paid in full.
A-3
121018180
EXHIBIT B
FORM OF NOTE
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE WITH
SECTION 2.07 OF THE AGREEMENT AND AS PROVIDED HEREIN
Interest Rate
REGISTERED OWNER:
United States of America
State of Minnesota
County of Anoka
City of Andover
Recreational Facility Revenue Note
(YMCA of the Greater Twin Cities Project)
Series 2019
No. R -
Maturity Date
November , 2029
Issue Date
November _, 2019
PNC BANK, NATIONAL ASSOCIATION
FOR VALUE RECEIVED, the City of Andover, Minnesota, a municipal corporation
duly organized and existing under the Constitution and laws of the State of Minnesota (the
"Issuer"), hereby promises to pay to the Registered Owner specified above, or its registered assigns
(each, an "Owner"), on the Maturity Date specified above, unless redeemed prior thereto, an
aggregate principal amount equal to $6,650,000 (the "Principal Amount'), together with interest
thereon at the rate set forth above as may be adjusted as set forth in the Agreement (as hereinafter
defined) from the Issue Date specified above, but only from the sources and in the manner provided
in the Agreement on the [first Business Day of each calendar month] and on the Maturity Date
(each, an "Interest Payment Date") until the principal hereof is paid or duly provided for upon
redemption or maturity. Payment of the principal and Purchase Price of, redemption premium, if
any, and interest on this Note shall be made in lawful money of the United States of America which
on the respective dates of payment thereof shall be legal tender for the payment of public and
private debts. The Issuer has agreed that all amounts payable to the Owner with respect to any
Note held by the Owner shall be made to the Owner (without any presentment thereof, except upon
payment of the final installment of principal, and without any notation of such payment being
made thereon) in such manner or at such address in the United States of America as may be
designated by the Owner in writing to the Issuer and the Borrower (as hereinafter defined). Partial
payments of the principal on this Note may be noted on the Table of Partial Redemptions attached
herein in lieu of surrendering this Note in connection with such payment. In any case where the
date of maturity of the principal or Purchase Price of, redemption premium, if any, or interest on
this Note or the date fixed for redemption of this Note shall not be a Business Day, then payment
121018180
of such principal, Purchase Price, redemption premium or interest need not be made on such date
but shall be made on the immediately succeeding Business Day, with the same force and effect as
if made on the date of maturity or the date fixed for redemption, and, in the case of such payment,
no interest shall accrue for the period from and after such date.
This Note shall be a limited obligation of the Issuer, the principal and Purchase Price of,
redemption premium, if any, and interest on which are payable solely from and secured as
described in the Agreement, all as described in and subject to limitations set forth in the
Agreement, for the equal and ratable benefit of the Owners, from time to time of this Note.
THE PRINCIPAL AND PURCHASE PRICE OF, REDEMPTION PREMIUM, IF ANY,
AND INTEREST ON THIS NOTE SHALL NOT BE DEEMED TO CONSTITUTE A DEBT OR
A PLEDGE OF FAITH AND CREDIT OF THE STATE OF MINNESOTA, OR ANY
POLITICAL SUBDIVISION THEREOF, INCLUDING THE ISSUER. NEITHER THE STATE
OF MINNESOTA NOR ANY POLITICAL SUBDIVISION THEREOF, INCLUDING THE
ISSUER SHALL BE OBLIGATED TO PAY PRINCIPAL AND PURCHASE PRICE OF,
REDEMPTION PREMIUM, IF ANY, OR INTEREST ON THIS NOTE OR OTHER COSTS
INCIDENT THERETO EXCEPT FROM REVENUES. NEITHER THE FAITH AND CREDIT
NOR THE TAXING POWER OF THE STATE OF MINNESOTA OR ANY POLITICAL
SUBDIVISION THEREOF, INCLUDING THE ISSUER, IS PLEDGED TO THE PAYMENT
OF THE PRINCIPAL AND PURCHASE PRICE OF, REDEMPTION PREMIUM, IF ANY,
AND INTEREST ON THIS NOTE OR OTHER COSTS INCIDENT THERETO.
This Note is a duly authorized issue of revenue bonds of the Issuer in the aggregate
principal amount of $6,650,000 known as City of Andover, Minnesota Recreational Facility
Revenue Note (YMCA of the Greater Twin Cities Project) Series 2019 (the "Note"), dated as of
the Issue Date referenced above. The Note is issued under and pursuant to the Minnesota Statutes,
Section 469.152 to 469.165 (the "Act"), and a Financing Agreement (as amended, restated,
supplemented or otherwise modified from time to time, the "Agreement"), dated as of November
1, 2019, among the Issuer, the Young Men's Christian Association of the Greater Twin Cities (the
"Borrower"), and PNC Bank, National Association, as Purchaser (the "Purchaser"). Reference is
hereby made to the Agreement for the provisions, among others, with respect to the custody and
application of the proceeds of the Note, the collection and disposition of revenues, a description
of the funds charged with and pledged to the payment of the principal and Purchase Price of,
redemption premium, if any, and interest on the Note, the nature and extent of the security for the
Note, the terms and conditions under which the Note are or may be issued, the rights, duties and
obligations of the Issuer and the rights of the Owners of the Note. By the acceptance of this Note,
the Owner hereof assents to all of the provisions of the Agreement. Capitalized terms used herein
and not defined shall have the meanings assigned to them in the Agreement.
The Note has been issued for the purpose of (a) the acquisition, construction, expansion,
renovation, and equipping of the Borrower's portion of the Issuer's community center (the
"Project"), and certain other costs related to the Project, which is owned by the Issuer and leased
to the Borrower, and is located at 13200 Hanson Blvd. NW within the City of Andover, and
(b) payment of certain costs incurred in connection with the issuance of the Note. The Issuer has
agreed to lend the proceeds of the sale of the Note to the Borrower, and the Borrower has agreed
121018180
to make payments in an amount, corresponding to the Principal Amount of, interest rate on,
Purchase Price of and due dates of the Note.
The Note is issuable as a fully registered Note in the principal amount of $250,000 and
multiples of $0.01 in excess thereof (an "Authorized Denomination"). This Note may, at the option
of the Owner hereof, be exchanged for a Note of an equal aggregate principal amount and tenor as
the Note being exchanged and of any Authorized Denomination as provided in the Agreement.
This Note may be registered as transferred as provided in the Agreement, subject to certain
limitations therein contained, accompanied by a written instrument of transfer (in substantially the
form of the assignment attached hereto) duly executed by the Owner hereof or his/her duly
authorized attorney. Thereupon, one or more new Notes of any Authorized Denomination and in
the same aggregate principal amount and tenor as the Note surrendered (or for which registration
of transfer has been effected) will be issued to the designated transferee or transferees.
1. Redemption of Note. Subject to any limitations set forth in the Continuing
Covenant Agreement, the Note is subject to mandatory redemption, optional redemption, and
extraordinary optional redemption as set forth in the Agreement. Notice of redemption shall be
given as provided in the Agreement.
2. Miscellaneous. Under certain circumstances as described in the Agreement, the
entire principal of the Note may be declared due and payable in the manner and with the effect
provided in the Agreement.
Modifications or alterations to the Agreement may be made only to the extent and in the
circumstances permitted by the Agreement.
It is hereby certified that all acts, conditions and things required to happen, exist and be
performed under the laws of the State of Minnesota and under the Agreement precedent to and in
the issuance of this Note have happened, exist and have been performed as so required and that
the issuance, authentication and delivery of this Note have been duly authorized by the Issuer.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
12101818v3
IN WITNESS WHEREOF, the City of Andover, Minnesota has caused this Note to be
executed in its name and on its behalf by the manual or facsimile signatures of the Mayor and City
Administrator of the Issuer, the Issuer's seal having been intentionally omitted as permitted by
law, all as of the Issue Date referenced above.
CITY OF ANDOVER, MINNESOTA
By
Julie Trude
Mayor
By
James Dickinson
City Administrator
121018180
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
(Please print or type the Name and Address,
including the Zip Code of the Transferee, and the federal taxpayer identification or social security
number) the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Note on the books kept for registration and transfer
thereof, with full power of substitution in the premises.
Dated:
NOTICE: The signature on this Assignment must correspond with the name as it appears upon
the face of the within -mentioned Note in every particular, without alteration or enlargement or any
change whatever.
Signature Guaranteed
NOTICE: Signature(s) must be guaranteed by a member firm of the STAMP, SEMP or MSP
signature guaranty medallion program.
121018180
PROVISIONS AS TO REGISTRATION
The ownership of the unpaid principal balance of this Note and the interest accruing
thereon is registered on the books of the Issuer in the name of the holder last noted below.
Date of
Registration
.2019
121018180
Name and Address
Registered Owner
PNC Bank, National
Association
411 East Wisconsin Avenue
Suite 1400
Milwaukee, WI 53202
Signature of
City Administrator
TABLE OF PARTIAL REDEMPTIONS
Upon all partial redemptions (whether optional, mandatory or otherwise) the Owner shall make
the appropriate notation itself on the table below. The Owner's records relating to the outstanding
principal amount of the Note shall in all cases prevail; absent manifest error:
Date Amount Remaining Unpaid Signature of
Redeemed Princi al Amount Owner
[End of Form of Note]
121018180
EXHIBIT C
DESCRIPTION OF THE PROJECT
Construct, expand, renovate, and equip the Borrower's portion of the Issuer's community center
located at 13200 Hanson Blvd NW, Andover, MN, consisting of
C-1
121018180
EXHIBIT D
FORM OF DISBURSEMENT REQUEST
$ Requisition No.
PNC Bank, National Association
411 East Wisconsin Avenue, Suite 1400
Milwaukee, Wisconsin 53202
Ladies and Gentlemen:
On behalf of Young Men's Christian Association of the Greater Twin Cities (the
'Borrower"), I hereby requisition from the funds representing the proceeds of the $6,650,000
Recreational Facility Revenue Note (YMCA of the Greater Twin Cities Project) Series 2019 (the
"Note"), issued by the City of Andover, Minnesota (the "Issuer"), and dated November _, 2019,
which funds are to be advanced by PNC Bank, National Association (the "Purchaser"), under the
Financing Agreement, dated as of November 1, 2019 (the "Financing Agreement") between the
Issuer, the Borrower and the Purchaser, the sum of $
I hereby certify that (a) the amount set forth above was incurred by the Borrower in
connection with the Project (defined to in the Financing Agreement), is a proper charge against
the Costs of the Project (as defined in the Financing Agreement), and has not been the basis for
any prior requisition which has been paid; (b) this requisition contains no items representing
payment on account of any retained percentages which the Borrower is entitled to retain at this
date; (c) subject to the last sentence of this paragraph, the payment of this requisition will not result
in (i) less than substantially all (95% or more) of the proceeds of the Note to be expended under
this requisition and under all prior requisitions having been used for the acquisition and installation
of real property or property of a character subject to the allowance for depreciation under the
Internal Revenue Code of 1986, as amended (the "Code") or (ii) more than 2% of the proceeds of
the Note having been used to pay for issuance costs within the meaning of Section 147(g)(1) of
the Code; and (d) no "Event of Default" (as defined in the Financing Agreement), or event which
after notice or lapse of time or both would constitute such an 'Event of Default" has occurred and
not been waived. Notwithstanding the foregoing, the undersigned may requisition to pay issuance
costs with respect to the Note at any time and from time to time, so long as such requisition,
together with all prior requisitions, do not include amounts to pay issuance costs that exceed in
total 2% of the Note proceeds expected to be available to pay Costs of the Project.
Capitalized terms used in this requisition and certificate and not defined herein shall have
the meanings assigned thereto in the Financing Agreement.
D-1
The following paragraph applies when any requisition and certificate includes any item for
payment for labor or to contractors, builders or materialmen.
I hereby certify that insofar as the amount covered by the above requisition includes
payments to be made for labor or to contractors, builders or materialmen, including materials or
supplies, in connection with the construction of the Project, (i) all obligations to make such
payment have been properly incurred, and (ii) any such labor was actually performed and any such
materials or supplies were actually furnished or installed in or about the Project and are a proper
charge against the Costs of the Project.
Young Men's Christian Association of the
Greater Twin Cities
Borrower Representative
APPROVED this _ day of
PNC BANK, NATIONAL ASSOCIATION, as Purchaser
By:
Name:
Title:
D-2
EXHIBIT E
FORM OF INVESTMENT LETTER
[To be provided by PNC]
E-1
KUTAK ROCK LLP
DRAFT 10/28/2019
CONTINUING COVENANT AGREEMENT
between
YOUNG MEN'S CHRISTIAN ASSOCIATION OF THE GREATER TWIN CITIES
1
PNC BANK, NATIONAL ASSOCIATION
Relating to
CITY OF ANDOVER, MINNESOTA
RECREATIONAL FACILITY REVENUE NOTE
(YMCA OF THE GREATER TWIN CITIES PROJECT)
SERIES 2019
Dated as of November 1, 2019
4816-9435-3832.2
Table of Contents
Page
ARTICLE I
DEFINITIONS
Section1.01.
Definitions........................................................................................................
1
Section 1.02.
Incorporation of Certain Definitions by Reference .......................................
14
Section 1.03.
Accounting Matters........................................................................................
14
Section 1.04.
Computation of Time Periods........................................................................
14
Section 1.05.
New York City Time Presumption................................................................
14
Section 1.06.
Relation to Other Documents; Incorporation by Reference ..........................
14
Section1.07.
Construction...................................................................................................
15
ARTICLE II
PURCHASE OF NOTE
Section 2.01.
Purchase of Note............................................................................................
15
ARTICLE III
THE BORROWER'S OBLIGATIONS
Section 3.01.
Repayment Obligations..................................................................................
16
Section3.02.
Default Interest...............................................................................................
16
Section 3.03.
Determination of Taxability...........................................................................
16
Section 3.04.
Fees; Costs and Expenses..............................................................................
17
Section 3.05.
Computation of Interest and Fees..................................................................
18
Section 3.06.
Increased Costs..............................................................................................
18
Section3.07.
Net of Taxes, Etc............................................................................................
19
Section 3.08.
Method and Application of Payments............................................................
20
Section 3.09.
Maintenance of Accounts..............................................................................
21
Section3.10.
Cure................................................................................................................
21
Section 3.11.
Maximum Lawful Rate..................................................................................
21
ARTICLE IV
CONDITIONS PRECEDENT TO PURCHASE OF NOTE
Section 4.01.
Documentary Requirements...........................................................................
22
Section 4.02.
Credit Requirements......................................................................................
24
Section 4.03.
Additional Conditions Precedent...................................................................
24
ARTICLE V
REPRESENTATION AND WARRANTIES
Section 5.01.
Section 5.02.
Section 5.03.
Section 5.04.
Section 5.05.
Section 5.06.
4816-9435-3832.2
Organization; Power; Qualification .................................
Authorization; Enforceability ..........................................
Compliance of Agreement and Related Documents with
Organizational Documents, Etc .......................................
Governmental Approvals .................................................
Compliance with Applicable Law ...................................
Title to Properties
............................. 24
............................. 24
..................................................................
......................... 25
......................... 25
......................... 25
......................... 25
Table of Contents
(continued)
6
Section 5.07.
Tax Returns and Payments.............................................................................
25
Section5.08.
Litigation........................................................................................................
26
Section 5.09.
Absence of Defaults and Events of Default ...................................................
26
Section 5.10.
Financial Statements......................................................................................
26
Section 5.11.
Accuracy and Completeness of Information ..................................................
26
Section 5.12.
Income Tax Status..........................................................................................
27
Section 5.13.
Incorporation of Representations and Warranties ..........................................
27
Section5.14.
No Usury........................................................................................................
27
Section5.15.
Insurance........................................................................................................
27
Section5.16.
Reserved.........................................................................................................
27
Section 5.17.
Compliance with ERISA................................................................................
27
Section 5.18.
Investment Company Act..............................................................................
28
Section 5.19.
Federal Reserve Board Regulations...............................................................
28
Section 5.20.
Pending Legislation and Decisions................................................................
28
Section 5.21.
Environmental Matters...................................................................................
28
Section 5.22.
Anti -Terrorism Representations.....................................................................
29
Section5.23.
Reserved.........................................................................................................
29
Section5.24.
Labor Matters.................................................................................................
30
Section 5.25.
Sovereign Immunity.......................................................................................
30
Section 5.26.
Taxpayer Identification Number....................................................................
30
Section 5.27.
Concerning the Project...................................................................................
30
ARTICLE VI
AFFIRMATIVE COVENANTS
Section 6.01.
Section 6.02.
Section 6.03.
Section 6.04.
Section 6.05.
Section 6.06.
Section 6.07.
Section 6.08.
Section 6.09.
Section 6.10.
Section 6.11.
Section 6.12.
Section 6.13.
Section 6.14.
Section 6.15.
Section 6.16.
Section 6.17.
Section 6.18.
Section 6.19.
Section 6.20.
Compliance with Applicable Laws .......................................
Reporting Requirements.......................................................
Notices..................................................................................
Further Assurances................................................................
Right of Entry; Communication with Accountants ..............
Payment of Obligations; Removal of Liens ..........................
Reserved................................................................................
Insurance...............................................................................
Reserved................................................................................
Employee Benefit Plan Compliance .....................................
Disclosure to Participants......................................................
Proceedsof Note....................................................................
Compliance with Related Documents ....................................
Maintenance of Governmental Approvals .............................
Maintenance of Properties.....................................................
Preservation of Existence, Etc ...............................................
Reserved.................................................................................
Reserved.................................................................................
Reserved.................................................................................
Financial Requirements.........................................................
u
4816-9435-3832.2
.............. 31
.............. 31
.............. 32
.............. 33
.............. 34
.............. 34
.............. 34
.............. 35
.............. 35
.............. 35
.............. 35
.............. 35
............. 36
............. 36
............. 36
............. 36
............. 36
............. 36
............. 36
............. 36
Table of Contents
(continued)
ZZ
Section 6.21.
Most Favored Covenant.................................................................................
38
Section 6.22.
Filing of Agreement.......................................................................................
39
Section6.23.
Reserved.........................................................................................................
39
Section6.24.
Reserved.........................................................................................................
39
Section 6.25.
Project Covenants..........................................................................................
39
ARTICLE VII
NEGATIVE COVENANTS
Section7.01.
Amendments..................................................................................................40
Section 7.02.
Preservation of Existence, Ownership, Etc ....................................................
40
Section 7.03.
Change of Corporate Name, State of Incorporation or Location ...................
40
Section7.04.
Business.........................................................................................................
40
Section 7.05.
Certain Information........................................................................................
40
Section7.06.
Reserved.........................................................................................................
40
Section 7.07.
Accounting Methods and Fiscal Year............................................................
40
Section7.08.
Exempt Status................................................................................................
40
Section 7.09.
Optional Redemption; Defeasance................................................................
41
Section 7.10.
Limitation on Hedge Agreements..................................................................
41
Section7.11.
Liens...............................................................................................................
41
Section 7.12.
Federal Reserve Board Regulations...............................................................
41
Section7.13.
Indebtedness...................................................................................................
41
Section 7.14.
Creation of Affiliates; Loans and Transfers to Affiliates ..............................
41
Section 7.15.
Limitation of Certain Dispositions.................................................................
42
Section 7.16.
Off -Balance Sheet Liabilities.........................................................................
42
Section7.17.
Investment Policy...........................................................................................
42
Section7.18.
Reserved.........................................................................................................
42
Section 7.19.
Regarding the Project.....................................................................................
42
Section7.20.
Reserved.........................................................................................................
42
Section 7.21.
Sovereign Immunity.......................................................................................
42
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01. Events of Default........................................................................................... 43
Section 8.02. Consequences of an Event of Default............................................................ 45
Section8.03. Reserved......................................................................................................... 45
Section 8.04. No Waiver; Remedies.................................................................................... 45
Section 8.05. Injunctive Relief............................................................................................. 46
ARTICLE IX
NATURE OF OBLIGATIONS; INDEMNIFICATION
Section 9.01. Obligations Absolute..................................................................................... 46
Section 9.02. Liability of the Purchaser............................................................................... 47
Section9.03. Indemnification.............................................................................................. 47
4816-9435-3832.2
Table of Contents
(continued)
.,=4
ARTICLE X
MISCELLANEOUS
Section 10.01.
Right of Setoff................................................................................................
48
Section 10.02.
Amendments and Waivers.............................................................................
48
Section10.03.
Counterparts...................................................................................................
48
Section10.04.
Notices...........................................................................................................
48
Section10.05.
Severability....................................................................................................49
Section10.06.
Arbitration......................................................................................................
49
Section 10.07.
Governing Law; Consent To Jurisdiction; Waiver Of Jury Trial ..................
49
Section 10.08.
Successors and Assigns..................................................................................
50
Section 10.09.
Complete and Controlling Agreement...........................................................
52
Section10.10.
Patriot Act......................................................................................................52
Section 10.11.
No Advisory or Fiduciary Responsibility......................................................
52
Section 10.12.
Payment Set Aside.........................................................................................
53
Section 10.13.
Contractual Interpretation..............................................................................
53
Section 10.14.
Electronic Signatures.....................................................................................
53
ARTICLE XI
APPLICATION OF NOTE PROCEEDS
Section 11.01. Application of Note Proceeds........................................................................53
EXHIBIT A REDEMPTION SCHEDULE
EXHIBIT B FORM OF COMPLIANCE CERTIFICATE
1V
4816-9435-3832.2
CONTINUING COVENANT AGREEMENT
THIS CONTINUING COVENANT AGREEMENT is dated as of November 1, 2019,
by and between YOUNG MEN'S CHRISTIAN ASSOCIATION OF THE GREATER
TWIN CITIES and PNC BANK, NATIONAL ASSOCIATION. All capitalized terms used
herein and not otherwise defined shall have the meanings assigned in Section 1.01 or as
otherwise provided in Section 1.02.
WITNESSETH:
WHEREAS, at the request of the Borrower, the Issuer has agreed to issue its Note
pursuant to the terms of the Financing Agreement;
WHEREAS, pursuant to the Financing Agreement, the Issuer will loan the Note Proceeds
to the Borrower;
WHEREAS, the Borrower intends to use the Note Proceeds for the acquisition and
construction of the Project and to pay certain costs incurred in connection with the issuance of
the Note; and
WHEREAS, the Purchaser has agreed to purchase the Note, and as a condition to such
purchase, the Purchaser has required the Borrower to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, including the covenants, terms and conditions hereinafter contained, and to induce
the Purchaser to purchase the Note, the Purchaser and the Borrower agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. In addition to terms defined at other places in this
Agreement, the following defined terms are used throughout this Agreement with the following
meanings:
"Accountant" means an independent certified public accountant or a firm of independent
certified public accountants, selected by the Borrower and reasonably satisfactory to the
Purchaser.
"Affiliate" means, with respect to any Person, any other Person directly or indirectly
controlling or controlled by or under common control with such Person.
"Agreement" means this Continuing Covenant Agreement.
"Applicable Law" means (a) all applicable common law and principles of equity and (b)
all applicable provisions of all (i) constitutions, statutes, treaties, rules, regulations, ordinances,
codes and orders of all Governmental Authorities, (ii) Governmental Approvals and (iii) orders,
4816-9435-3832.2
decisions, judgments, writs, injunctions and decrees of all courts (whether at law or in equity)
and arbitrators.
"Available Net Assets" means the sum of net assets of the Borrower classified as either
unrestricted or temporarily restricted.
"Balloon Indebtedness" means Long -Term Indebtedness twenty-five percent (25%) or
more of the original principal amount of which (i) is due or required to be purchased by the
issuer thereof (other than at the option of the holder thereof) in any twelve (12) month period or
(ii) may, at the option of the holder thereof, be required to be redeemed, prepaid, purchased
directly or indirectly by the issuer of such Indebtedness or otherwise paid in any twelve (12)
month period, other than by redemption or acceleration thereof upon the occurrence of an event
of default; provided, that, in calculating the principal amount of such Indebtedness due or
required to be redeemed, prepaid, purchased or otherwise paid in any twelve (12) month period,
such principal amount shall be reduced to the extent that all or any portion of such amount is
required to be amortized prior to such twelve (12) month period.
"Bank Transferee" shall have the meaning assigned to such term in Section 10.08(c).
"Bankruptcy Code" means Title 11 of the United States Code, as amended from time to
time, or any successor statute thereto.
"Base Rate" means, for any day, a fluctuating rate of interest per annum equal to the
greatest of (i) the Prime Rate in effect at such time, (ii) the Overnight Bank Funding Rate in
effect at such time plus one half of one percent (0.50%), (iii) the Daily LIBOR Rate in effect at
such time plus one percent (1.00%), and (iv) seven percent (7.00%).
"Borrower" means Young Men's Christian Association of the Greater Twin Cities, a
nonprofit corporation duly organized and validly existing under the laws of Minnesota, and its
successors and assigns permitted hereunder.
"Business Day" shall have the meaning assigned to such term in the Financing
Agreement.
"Capitalized Lease" means any lease of property which, in accordance with GAAP, is
required or permitted to be capitalized on the financial statements of the Borrower.
"Cash and Liquid Investments" means, as of the date of determination, the sum of (i)
"cash and cash equivalents," plus (ii) "investments," less (iii) an amount equal to the permanently
restricted portion of the Borrower's endowment funds, all as set forth in the most recently
available audited financial statements of the Borrower or any other report of an Independent
Accountant.
"Change in Law" means the occurrence, after the Closing Date, of any of the following,
including any of the following that occur pursuant to the Dodd -Frank Wall Street Reform and
Consumer Protection Act or Basel III: (a) the adoption or taking effect of any Law, including
Risk -Based Capital Guidelines, (b) any change in any Law or in the administration,
interpretation, implementation or application thereof by any Governmental Authority or (c) the
2
4816-9435-3832.2
making or issuance of any request, rule, ruling, guideline, regulation or directive (whether or not
having the force of law) by any Governmental Authority.
"Closing Date" means November _, 2019, subject to the satisfaction of the conditions
precedent set forth in Article IV.
"Code" means the Internal Revenue Code of 1986, as amended from time to time, and all
rules and regulations (including temporary and proposed regulations) from time to time
promulgated thereunder, or any successor statute thereto.
"Completion Date" shall have the meaning assigned to such term in the Financing
Agreement.
"Contract" means any indenture, agreement (other than this Agreement), other
contractual restriction, lease, instrument, guaranty, certificate of incorporation, charter or by law.
"control", "controlled by" or "under common control with" means, when used with
respect to any specified Person, the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting rights, the power to appoint
officers, members, trustees or directors, by contract, statute or otherwise.
"Costs of the Project" shall have the meaning assigned to such term in the Financing
Agreement.
"Daily LIBOR Rate " means, for any day, the rate per annum determined by the Purchaser
by dividing (A) the Published Rate by (B) a number equal to 1.00 minus the percentage
prescribed by the Federal Reserve for determining the maximum reserve requirements with
respect to any eurocurrency fundings by banks on such day; provided, however, if the Daily
LIBOR Rate determined as provided above would be less than zero, then such rate shall be
deemed to be zero. The rate of interest will be adjusted automatically as of each Business Day
based on changes in the Daily LIBOR Rate without notice to the Borrower.
"Days Cash on Hand" means as of any date of calculation (i) the sum of Cash and Liquid
Investments divided by (ii) the difference between "total operating expenses" and "depreciation
and amortization" of the Borrower for the most recent Fiscal Year divided by three hundred
sixty-five (365).
"Debt Service" means, for any particular period of time, the aggregate, without
duplication, of the payments to be made during such period in respect of principal and interest
(including mandatory sinking fund obligations) on outstanding Long -Term Indebtedness,
provided that for purpose of such calculation:
(i) with respect to Balloon Indebtedness, it shall be assumed that principal
installments are due annually on the anniversary of the date of issuance of such
Indebtedness on a level basis through a maturity date that is the later of (a) the fifteenth
anniversary of the date of issuance or (b) the actual maturity date. For the avoidance of
doubt, the term "level basis" means annual principal installments equal to the outstanding
principal amount divided by the number of years remaining to maturity;
3
4816-9435-3832.2
(ii) variable interest rate Indebtedness shall be assumed to bear interest (a) at a
rate equal to the average annual rate of interest that was borne by such variable interest
rate Indebtedness during the then most recent Fiscal Year, or if such variable interest rate
Indebtedness was not then outstanding, the SIFMA Index for the preceding Fiscal Year,
or (b) if applicable, at a rate equal to the fixed rate the Borrower has agreed to pay to a
swap provider pursuant to an interest rate swap agreement in exchange for the swap
provider's agreement to pay interest at a variable rate;
(iii) such amount shall include payments on Capitalized Leases in such period;
(iv) such amount shall include interest to be paid with respect to Short -Term
Indebtedness in such period;
(v) with respect to Indebtedness subject to mandatory redemption or purchase in
specified amounts and at specified times, the amount of principal coming due on such
dates shall be taken into account;
(vi) such amount of principal and interest payable on any Indebtedness in any
such period shall be reduced by any amount which will be released during such period
from any debt service reserve fund securing such Indebtedness as a result of the
amortization or repayment of such Indebtedness in such period or a prior period; and
(vii) such amount shall exclude from interest on any Indebtedness any amounts
funded from such Indebtedness and dedicated and available solely for the payment of
such interest to the extent that such amounts are not included in Income Available for
Debt Service against which the Debt Service requirement is being compared.
"Debt Service Coverage Ratio" means, for any particular period of time, the ratio of the
fraction consisting of a numerator equal to the amount determined by dividing Income Available
for Debt Service for such period by the Maximum Annual Debt Service and a denominator of
1.00.
"Default" means the occurrence of any event or the existence of any condition which
constitutes an Event of Default or the occurrence of any event or the existence of any condition
which with the giving of notice, the passage of time, or both, would constitute an Event of
Default.
"Default Rate" means, for any date of determination, a fluctuating rate of interest per
annum equal to the Base Rate plus 3.00%.
"Determination of Taxability" shall have the meaning assigned to such term in the
Financing Agreement.
"EMMA" means the Municipal Securities Rulemaking Board's Electronic Municipal
Access System or any service or services established by the Municipal Securities Rulemaking
Board (or any of its successors) as a successor to the Electronic Municipal Access System.
4
4816-9435-3832.2
"Environmental Law(s)" means any and all federal, state, local and foreign statutes, laws,
regulations, ordinances, rules, codes, plans, judgments, orders, decrees, permits, concessions,
grants, restrictions, franchises, licenses, policies, binding and enforceable guidelines, agreements
or other governmental restrictions (or judicial or administrative interpretations thereof) relating
to air, water or land pollution, wetlands or the protection of the environment, public health and
safety or to emissions, discharges or releases of Hazardous Materials into the environment,
including ambient air, surface water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials or the clean up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time, and all rules and regulations from time to time promulgated thereunder, or any
successor statute thereto.
"ERISA Group" means the Borrower and all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower, are treated as a single employer and any affiliated service
group under Section 414 of the Code.
"Event of Default," in relation to this Agreement, shall have the meaning assigned to such
term in Section 8.01, and in relation to any Related Document, shall have the meaning set forth
therein.
"Event of Insolvency" means, with respect to any Person, the occurrence of one or more
of the following events:
(a) the issuance, under the laws of any state or under the laws of the United
States of America, of an order of rehabilitation, liquidation or dissolution of such Person;
(b) the commencement by or against such Person of a case or other
proceeding seeking liquidation, reorganization or other relief with respect to such Person
or its debts under any bankruptcy, insolvency or other similar state or federal law now or
hereafter in effect, including the appointment of a trustee, receiver, liquidator, custodian
or other similar official for such Person or any substantial part of its Property or there
shall be appointed or designated with respect to it, an entity such as an organization,
board, commission, authority, agency or body to monitor, review, oversee, recommend or
declare a financial emergency or similar state of financial distress with respect to it or
there shall be declared or introduced or proposed for consideration by it or by any
legislative or regulatory body with competent jurisdiction over it, the existence of a state
of financial emergency or similar state of financial distress in respect of it;
(c) the making of an assignment for the benefit of creditors by such Person;
(d) the inability or failure of such Person to generally pay its debts as they
become due;
(e) the declaration of a moratorium with respect to the payment of the debts of
such Person;
4816-9435-3832.2
(f) such Person shall admit in writing its inability to pay its debts when due;
(g) such Person is "insolvent" as defined in Section 101(32) of the
Bankruptcy Code; or
(h) the initiation of any action in furtherance of or to authorize any of the
foregoing by or on behalf of such Person.
"Excess Interest Amount" shall have the meaning assigned to such term in Section
3.11(b).
"Excluded Taxes" means, with respect to the Purchaser or any Owner, (a) taxes imposed
on or measured by its overall net income (however denominated), and franchise taxes imposed
on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under
the laws of which the Purchaser or such Owner is organized or in which its principal office is
located, and (b) any branch profits taxes imposed by the United States of America or any similar
tax imposed by any other jurisdiction in which the Borrower is located.
"Exposure" means, for any date of determination, with respect to a Person and any Hedge
Agreement, the amount of any Settlement Amount that would be payable by such Person if such
Hedge Agreement were terminated as of such date. Exposure shall be determined in accordance
with the methodology for calculating amounts due upon early termination as set forth in the
related Hedge Agreement and the notional principal amount, term and other relevant provisions
thereof.
"Facilities" shall have the meaning assigned to such term in the Financing Agreement.
"Financing Agreement" means the Financing Agreement dated as of November 1, 2019,
among the Issuer, the Purchaser and the Borrower.
"Fiscal Year" means the period of twelve (12) consecutive calendar months for which
financial statements of the respective entity have been examined by its Accountants; currently
for the Borrower, a year ending on December 31 sc
"GAAP" means generally accepted accounting principles in the United States of America
set forth in the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or such other principles as may be approved by a
significant segment of the accounting profession in the United States of America, that are
applicable to the circumstances as of the date of determination, consistently applied.
"Governing Body" means, with respect to the Borrower, its Board of Directors.
"Governmental Approvals" means an authorization, consent, approval, permit, license,
certificate of occupancy or an exemption of, a registration or filing with, or a report to, any
Governmental Authority.
6
4816-9435-3832.2
"Governmental Authority" means the government of the United States of America or any
other nation or any political subdivision thereof or any governmental or quasi -governmental
entity, including any court, department, commission, board, bureau, agency, administration,
central bank, service, district or other instrumentality of any governmental entity or other entity
exercising executive, legislative, judicial, taxing, regulatory, fiscal, monetary or administrative
powers or functions of or pertaining to government (including any supra -national bodies such as
the European Union or the European Central Bank), or any arbitrator, mediator or other Person
with authority to bind a parry at law.
"Guaranty Obligations" means, with respect to any Person, any obligation, contingent or
otherwise, of any such Person pursuant to which such Person has directly or indirectly
guaranteed any Indebtedness or other obligation of any other Person (the "obligee") and, without
limiting the generality of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of any such Person (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep well, to purchase assets, goods, securities or
services, to take -or -pay, or to maintain financial statement condition or otherwise) or (b) entered
into for the purpose of assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); provided, that the term "Guaranty Obligations" shall not include endorsements
for collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, materials, contaminants, chemicals, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or
wastes of any nature regulated pursuant to any Environmental Law.
"Hedge Agreement" means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond or bond price or
bond index swaps or options or forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross -currency rate swap
transactions, currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any of the foregoing),
whether or not any such transaction is governed by or subject to any master agreement, and (b)
any and all transactions of any kind, and the related confirmations, which are subject to the terms
and conditions of, or governed by, any form of master agreement published by the International
Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement,
or any other master agreement.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Income Available for Debt Service" means, with respect to the Borrower, for any period
of calculation, the sum of (i) excess of operating support and revenue over operating expenses,
plus (ii) interest expense, plus (iii) amortization expense, plus (iv) depreciation expense.
7
4816-9435-3832.2
"Indebtedness" means all obligations for borrowed money, all installment purchase and
similar obligations and all payments due with respect to Capitalized Leases, incurred or assumed
by the Borrower, but excluding any such obligation for which there has been established an
escrow or similar fund or account, satisfactory to the holder of such obligation, for the payment
in full of such obligation when due and for which such holder has exclusive recourse. In
calculating Indebtedness of the Borrower, there shall be excluded (i) accounts payable, trade
accounts or accrued expenses or liabilities or similar obligations incurred or assumed by the
Borrower in the ordinary course of business and (ii), in connection with one or more securities
lending transactions in which the Borrower is the transferor or "lender" of securities, any amount
stated as a liability for "amount payable under securities lending arrangement" (or similar) on the
consolidated statement of financial position of the Borrower but only to the extent of the amount
stated as an asset for 'collateral received under securities lending arrangement" ( or similar) on
the same consolidated statement.
"Independent" means when used with reference to an attorney, engineer, architect,
certified public accountant, consultant, or other professional person, a person who: (a) is in fact
independent; (b) does not have any material financial interest in the Borrower or the transaction
to which his certificate or opinion relates (other than payment to be received for professional
services rendered); and (c) is not connected with the Issuer or the Borrower as an officer,
director, or employee.
"Independent Consultant" means a regionally or nationally recognized firm of
Independent professional management consultants or an Independent management organization
or investment banking firm selected by the Borrower and knowledgeable in the nonprofit
industry in which the Borrower operates and having a favorable reputation for skill and
experience to render the particular report required.
"Initial Purchase Price" shall have the meaning assigned to such term in Section 2.01(a).
"Interest Payment Date" shall have the meaning assigned to such term in the Financing
Agreement.
"Investment Policy" means the investment policy of the Borrower delivered to the
Purchaser pursuant to Section 4.01(a).
"Investor Letter" shall have the meaning assigned to such term in Section 10.08(d).
"Issuer" means the City of Andover, Minnesota, a municipal corporation and political
subdivision duly organized and existing under the Constitution and laws of the State of
Minnesota, and its successors and assigns permitted hereunder.
"Land" means the real property upon which the Facilities are located.
"Law" means any treaty or any federal, regional, state and local law, statute, rule,
ordinance, regulation, code, license, authorization, decision, injunction, interpretation, order or
decree of any court or other Governmental Authority.
"Lease" shall have the meaning assigned to such term in the Financing Agreement.
8
4816-9435-3832.2
"Leverage Ratio" means, on any particular date, the ratio of a fraction consisting of a
numerator equal to the amount determined by dividing Total Liabilities as of such date by
Available Net Assets and a denominator of 1.00.
"Lien" means, with respect to any asset, any mortgage, deed of trust, lien, pledge, charge,
security interest, hypothecation, assignment, deposit arrangement or encumbrance of any kind in
respect of such asset, whether or not filed, recorded or otherwise perfected or effective under
Applicable Law, as well as the interest of a vendor or lessor under any conditional sale
agreement, capital or finance lease or other title retention agreement relating to such asset and, in
the case of securities, any purchase option, call or similar right of a third party with respect to
such securities.
"Long -Term Indebtedness" means, with respect to the Borrower, all Indebtedness
incurred or assumed by the Borrower for any of the following:
(i) payments of principal and interest with respect to money borrowed for an
original term, or renewable for a period from the date originally incurred, longer than one
year;
(ii) payments due under Capitalized Leases having an original term, or renewable
for a period from the date originally incurred, longer than one year; and
(iii) payments under installment purchase contracts or similar contracts for the
purchase or acquisition of Property having an original term in excess of one year;
including the current portion of Long -Term Indebtedness.
"Majority Noteholder" means the Noteholders with a majority of the aggregate principal
amount of the Note from time to time. As of the Effective Date, PNC Bank, National Association
shall be the Majority Noteholder.
"Margin Stock" shall have the meaning assigned to such term in Regulation U
promulgated by the Board of Directors of the Federal Reserve System, as now and hereafter from
time to time in effect.
"Material Adverse Change" means the occurrence of any event or change which in the
sole reasonable discretion of the Purchaser results in a material and adverse change in the
business, assets, liabilities, condition (financial or otherwise), operations or prospects of the
Borrower since the last day of the period reported in the audited annual financial statements of
the Borrower dated as of December 31, 2018, or which in the sole reasonable discretion of the
Purchaser materially and adversely effects (a) the enforceability of this Agreement or any
Related Document, (b) the ability of the Borrower to perform its obligations hereunder or
thereunder or (c) the rights of or benefits or remedies available to the Purchaser under this
Agreement or the Related Documents.
"Material Adverse Effect" means (a) with respect to the Borrower, a material and adverse
effect in the sole reasonable discretion of the Purchaser in the business, assets, liabilities,
condition (financial or otherwise), operations or prospects of the Borrower or (b) with respect to
9
4816-9435-3832.2
this Agreement or any Related Document, a material adverse effect in the sole reasonable
discretion of the Purchaser upon (i) the enforceability of this Agreement or any Related
Document, (ii) the ability of the Borrower to perform its obligations under this Agreement or any
Related Document or (iii) the rights of or benefits or remedies available to the Purchaser under
this Agreement or any Related Document.
"Material Indebtedness" means (a) any Indebtedness owed to the Purchaser or any
Affiliate of the Purchaser; (b) the Note; (c) any Indebtedness payable from or secured by the
Revenues which as to priority of payment is on a parity with or senior to the Note; and (d) any
other Indebtedness which has a principal amount outstanding of not less than $250,000
(measured in the case of any Hedge Agreement, by a Person's Exposure thereunder).
"Material Litigation" shall have the meaning assigned to such term in Section 5.08
"Maximum Annual Debt Service" means the maximum Debt Service due in any one
current or any future Fiscal Year of the Borrower.
"Maximum Lawful Rate" shall have the meaning assigned to such term in the Financing
Agreement.
"Multiemployer Plan" means at any time an employee pension benefit plan within the
meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then
making or accruing an obligation to make contributions or has made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during such five
(5) year period.
"Non -Bank Transferee" shall have the meaning assigned to such term in Section
10.08(d).
"Note Documents" shall have the meaning assigned to such term in the Financing
Agreement.
"Note Interest is Taxable" shall have the meaning assigned to such term in the Financing
Agreement.
"Note Proceeds" shall have the meaning assigned to such term in the Financing
Agreement.
"Note" means the $ City of Andover, Minnesota Recreational Facility
Revenue Note (YMCA of the Greater Twin Cities Project), Series 2019.
"Off -Balance Sheet Liabilities" means any liability or obligation, absolute, contingent or
otherwise, incurred under an "off-balance sheet arrangement" as defined in the Final Rule:
Disclosure in Management's Discussion and Analysis about Off -Balance Sheet Arrangements
and Aggregate Contractual Obligations, Securities And Exchange Commission 17 CFR Parts
228, 229 and 249, as such rule may be amended or supplemented from time to time.
"Other Taxes" shall have the meaning assigned to such term in Section 3.07(a).
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"Outstanding" shall have the meaning assigned to such term in the Financing Agreement.
"Overnight Bank Funding Rate" means, for any day, the rate comprised of both
overnight federal funds and overnight Eurocurrency borrowings by U.S.-managed banking
offices of depository institutions, as such composite rate shall be determined by the Federal
Reserve Bank of New York ("NYFRB"), as set forth on its public website from time to time, and
published on the next succeeding Business Day as the overnight bank funding rate by the
NYFRB (or by such other recognized electronic source (such as Bloomberg) selected by the
Purchaser for the purpose of displaying such rate); provided, that if such day is not a Business
Day, the Overnight Bank Funding Rate for such day shall be such rate on the immediately
preceding Business Day; provided, further, that if such rate shall at any time, for any reason, no
longer exist, a comparable replacement rate shall be determined by the Purchaser at such time
(which determination shall be conclusive absent manifest error). If the Overnight Bank Funding
Rate determined as above would be less than zero, then such rate shall be deemed to be zero.
The rate of interest charged shall be adjusted as of each Business Day based on changes in the
Overnight Bank Funding Rate without notice to the Borrower.
"Owner" shall have the meaning assigned to such term in the Financing Agreement.
"Participant(s)" means any bank(s) or other financial institution(s) which may purchase a
participation interest from the Purchaser in this Agreement and certain of the Related Documents
pursuant to a participation agreement between the Purchaser and the Participant(s).
"Patriot Act" means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Title III of Pub. L. 107 56
(signed into law October 26, 2001).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity succeeding to
any or all of its functions under ERISA.
"Permitted Liens" means Liens in favor of the Purchaser and any of the following Liens
securing any Indebtedness of the Borrower or its Affiliates on their Property, whether now
owned or hereafter acquired:
(a) Liens of carriers, warehousemen, mechanics and materialmen incurred in
the ordinary course of business for sums not yet due and payable;
(b) Liens incurred in the ordinary course of business in connection with
worker's compensation, unemployment insurance or other forms of governmental
insurance or employee benefits, or Liens to secure the performance of letters of credit,
bids, tenders, statutory obligations, leases and contracts (other than for borrowed funds)
entered into in the ordinary course of business or to secure obligations on surety or appeal
bonds;
(c) Purchase money liens on equipment purchased or leased by the Borrower
or its Affiliates;
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4816-9435-3832.2
(d) Liens for current taxes, assessments or other governmental charges that
are not delinquent or remain payable without any penalty;
(e) Liens representing obligations under gifts or contracts to expend monies in
a prescribed manner; and
(f) such other Liens, including, but not limited to, Liens subordinate to the
Liens of the Purchaser, utility or access easements, leases and subleases, that the
Borrower certifies will not interfere with or impair the use of or operations being
conducted in the Project;
(g) such minor defects, irregularities, encumbrances, easements, rights of way
and clouds on title as normally exist with respect to properties similar in character to the
Project, and as do not in the aggregate, in the opinion of Independent counsel, materially
impair the property affected thereby for the purposes for which it was acquired or is held
by the Borrower; and
(h) liens on Property of the Borrower which in the aggregate total
$10,000,000 or less.
"Person" means an individual, a corporation, a partnership, an association, a joint
venture, a trust, a business trust, a limited liability company or any other entity or organization,
including a governmental or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee benefit plan within the meaning of Section 3(3) of
ERISA. A "Plan" shall include, but shall not be limited to, an employee pension benefit plan
(including a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and either (a) is maintained, or
contributed to, by any member of the ERISA Group for employees of any member of the ERISA
Group or (b) has at any time been maintained, or contributed to, by any Person which was at
such time a member of the ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
"Plans and Specifications" shall have the meaning assigned to such term in the Financing
Agreement.
"Prime Rate" means the rate publicly announced by the Purchaser from time to time as
its "prime rate." The Prime Rate is determined from time to time by the Purchaser as a means of
pricing some loans to its borrowers. The Prime Rate is not tied to any external rate of interest or
index, and does not necessarily reflect the lowest rate of interest actually charged by the
Purchaser to any particular class or category of customers.
"Project" shall have the meaning assigned to such term in the Financing Agreement.
"Property" means, when used in connection with any Person, any and all rights, title and
interests of such Person in and to any and all property (including cash) whether real, personal or
mixed, or tangible or intangible, and wherever situated.
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"Published Rate" means the rate of interest published each Business Day in the Wall
Street Journal "Money Rates" listing under the caption "London Interbank Offered Rates" for a
one month period (or, if no such rate is published therein for any reason, then the Published Rate
shall be the Eurodollar rate for a one month period as published in another publication selected
by the Purchaser).
"Purchase Price" means, as of any date of determination, one hundred percent (100%) of
the principal amount of the Note which is Outstanding, plus accrued and unpaid interest thereon
to the date of purchase.
"Purchaser" means, initially, PNC Bank, National Association, a national banking
association organized and existing under the laws of the United States of America, and its
successors and assigns, and upon the receipt from time to time by the Borrower of a notice
described in Section 10.08(b) means the Person designated in such notice as the Purchaser, as
more fully provided in Section 10.08(b).
"Related Documents" means, collectively, the Note Documents and any exhibits,
schedules, instruments or agreements relating thereto.
"Revenues" shall have the meaning assigned to such term in the Financing Agreement.
"Risk -Based Capital Guidelines" means (a) the risk-based capital guidelines in effect in
the United States of America, including transition rules, and (b) the corresponding capital
regulations promulgated by regulatory authorities outside the United States of America including
transition rules, and any amendment to such regulations.
"Securities Act" means the Securities Act of 1933, as amended from time to time, or any
successor statute thereto.
"Settlement Amount" means, with respect to a Person and any Hedge Agreement, any
amount payable by such Person under the terms of such Hedge Agreement in respect of, or
intended to compensate the other parry for, the value of such Hedge Agreement upon an early
termination thereof.
"Short -Term Indebtedness" means all Indebtedness which is not Long -Term
Indebtedness.
"State" means the State of Minnesota.
"Tax Certificate" shall have the meaning assigned to such term in the Financing
Agreement.
"Taxable Date" shall have the meaning assigned to such term in the Financing
Agreement.
"Taxable Period" shall have the meaning assigned to such term in Section 3.03(a).
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4816-9435-3832.2
"Taxable Rate" shall have the meaning assigned to such term in the Financing
Agreement.
"Taxes" means, with respect to any Person, all present or future taxes, levies, imposts,
duties, deductions, withholdings (including backup withholding), assessments, fees or other
charges imposed by any Governmental Authority on such Person, including any interest, fines,
additions to tax or penalties applicable thereto.
"Total Liabilities" means all liabilities of the Borrower as of the date of calculation as
determined in accordance with GAAP.
"Withdrawal Liability" means liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
"written" or "in writing" means any form of written communication or a communication
by means of a facsimile device.
Section 1.02. Incorporation of Certain Definitions by Reference. Each capitalized
term used herein and not otherwise defined herein shall have the meaning provided therefor in
the Financing Agreement, unless the context otherwise requires.
Section 1.03. Accounting Matters. Unless otherwise specified herein, all accounting
terms used herein without definition shall be interpreted, all accounting determinations hereunder
shall be made, and all financial statements required to be delivered hereunder shall be prepared,
in accordance with GAAP. In the event of changes to GAAP which become effective after the
Closing Date, the Borrower and the Purchaser agree to negotiate in good faith appropriate
revisions of this Agreement so as to perpetuate the meaning and effect of such provisions as
originally negotiated and agreed upon.
Section 1.04. Computation of Time Periods. In this Agreement, in the computation of
a period of time from a specified date to a later specified date, unless otherwise specified herein,
the word "from" means "from and including" and the words "to" and "until" each mean "to but
excluding" and the word "through" means "to and including."
Section 1.05. New York City Time Presumption. All references herein to times of the
day shall be presumed to refer to New York City time unless otherwise specified.
Section 1.06. Relation to Other Documents; Incorporation by Reference.
(a) Nothing in this Agreement shall be deemed to amend, or relieve the
Borrower of any of its obligations under, any Related Document to which it is a party.
Conversely, to the extent that the provisions of any Related Document allow the
Borrower to take or not take certain actions, the Borrower nevertheless shall be fully
bound by the provisions of this Agreement.
(b) Except as provided in subsection (c) below, all references to this
Agreement or any other documents, including the Related Documents, shall be deemed to
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4816-9435-3832.2
include all amendments, restatements, modifications and supplements thereto to the
extent such amendment, restatement, modification or supplement is made in accordance
with the provisions of such document and this Agreement.
(c) All provisions of this Agreement making reference to specific Sections of
any Related Document shall be deemed to incorporate such Sections into this Agreement
by reference as though specifically set forth herein (with such changes and modifications
as may be herein provided) and shall continue in full force and effect with respect to this
Agreement notwithstanding payment of all amounts due under or secured by the Related
Documents, the termination or defeasance thereof or any modification thereto or any
waiver given in connection therewith, so long as this Agreement is in effect and until all
amounts due and owing to the Purchaser under this Agreement, the Note and the other
Related Documents are paid in full. No amendment, modification, consent, waiver or
termination with respect to any of such Sections shall be effective as to this Agreement
until specifically agreed to in writing by the Purchaser with specific reference to this
Agreement.
Section 1.07. Construction. Unless the context of this Agreement otherwise clearly
requires, references to the plural include the singular, to the singular include the plural and to the
part include the whole. The word "including" shall be deemed to mean "including but not
limited to," and "or" has the inclusive meaning represented by the phrase "and/or." The words
"hereof," "herein," "hereunder" and similar terms in this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement. The Section headings contained in
this Agreement and the table of contents preceding this Agreement are for reference purposes
only and shall not control or affect the construction of this Agreement or the interpretation
thereof in any respect. Article, section, subsection, exhibit, schedule and annex references are to
this Agreement unless otherwise specified. Any exhibit, schedule or annex attached hereto is
incorporated by reference herein and is a constituent part of this Agreement. The recitals hereto
are true and correct and are incorporated into this Agreement.
ARTICLE II
PURCHASE OF NOTE
Section 2.01. Purchase of Note.
(a) Initial Purchase Price. Upon the terms and conditions and based on the
representations, warranties and covenants of the Borrower set forth herein and in the
Related Documents, the Purchaser hereby agrees to purchase from the Issuer and the
Borrower hereby agrees to cause the Issuer to sell to the Purchaser, all, but not less than
all, of the Note at the purchase price of $[PAR AMOUNT] representing the aggregate
principal amount of the Note (the "Initial Purchase Price").
(b) Closing. On the Closing Date, the Borrower shall deliver to the Purchaser
the documents described in Article IV. Upon delivery of such documents, the Purchaser
will pay the Initial Purchase Price for the Note in immediately available federal funds
payable to the Borrower. One fully registered Note, in the aggregate principal amount
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4816-9435-3832.2
equal to the Initial Purchase Price, shall be issued to and registered in the name of the
Purchaser, or as otherwise directed by the Purchaser. The Note shall be so issued and
registered to and held by the Purchaser, or as otherwise directed by the Purchaser.
ARTICLE III
THE BORROWER'S OBLIGATIONS
Section 3.01. Repayment Obligations. The Borrower hereby unconditionally,
irrevocably and absolutely agrees to make prompt and full payment of all amounts due and
owing to the Purchaser under this Agreement, the Note and the other Related Documents
whether now existing or hereafter arising, irrespective of their nature, whether direct or indirect,
absolute or contingent, with interest thereon at the rate or rates provided in this Agreement, the
Note or such other Related Documents. Without limiting the generality of the foregoing, the
parties hereto acknowledge and agree that the payment obligations of the Borrower described in
this Section are obligations in the nature of a loan and separate and independent of the
Borrower's obligations under the Related Documents. The Borrower unconditionally,
irrevocably and absolutely agrees to pay to the Purchaser the following:
(a) Interest on an amount equal to the principal amount of the Note on each
Interest Payment Date at the interest rate applicable to the Note as set forth in the
Financing Agreement;
(b) Principal on the dates and in the amounts set forth in Exhibit A. The
Borrower shall cause the Note to be redeemed on the dates and in principal amounts
equal to the amounts required to be paid pursuant to this subsection, provided that such
redemptions shall not be subject to the redemption premiums set forth in Section 2.10(a)
of the Financing Agreement;
(c) To the extent that the Purchaser receives payment through ownership of
the Note, the Borrower's obligation to make payments pursuant this Section, to the extent
of the payment so received by the Purchaser, shall be deemed satisfied.
Section 3.02. Default Interest. The Borrower agrees to pay, or cause to be paid, to the
Purchaser, upon demand, interest on any and all amounts due and owing by the Borrower under
this Agreement, the Note or the other Related Documents from and after the earlier of (a) the
date amounts owed hereunder are due and not paid and (b) the occurrence and continuance of an
Event of Default, but only for so long as such amounts due remain unpaid or such Event of
Default continues, at the Default Rate. The obligations of the Borrower under this Section shall
survive the termination of this Agreement and the payment in full of the Note.
Section 3.03. Determination of Taxability.
(a) In the event a Taxable Date occurs, in addition to (but not in duplication
of) the amounts required to be paid pursuant to the Related Documents, the Borrower
hereby agrees to pay to the Purchaser and any other Owner, as applicable, on demand
therefor (i) an amount equal to the difference between (A) the amount of interest paid to
the Purchaser and such other Owner on the Note during the period in which interest on
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4816-9435-3832.2
the Note is includable in the gross income of the Purchaser or such other Owner
beginning on the Taxable Date (the "Taxable Period") and (B) the amount of interest that
would have been paid to the Purchaser and such other Owner during such Taxable Period
had the Note borne the Taxable Rate, and (ii) an amount equal to any interest, penalties or
charges owed by the Purchaser and such other Owner as a result of interest on the Note
becoming includable in the gross income of the Purchaser or such other Owner, together
with any and all attorneys' fees, court costs, or other out of pocket costs incurred by the
Purchaser or such other Owner in connection therewith.
(b) Subject to the provisions of subsections (c) and (d) below, the Purchaser
or such other Owner, as applicable, shall afford the Borrower the opportunity, at the
Borrower's sole cost and expense, to contest (i) the validity of any amendment to the
Code which causes the interest on the Note to be includable in the gross income of the
Purchaser or such other Owner or (ii) any challenge to the validity of the tax exemption
with respect to the interest on the Note, including the right to direct the necessary
litigation contesting such challenge (including administrative audit appeals).
(c) As a condition precedent to the exercise by the Borrower of its right to
contest set forth in subsection (b) above, the Borrower shall, on demand, immediately
reimburse the Purchaser and such other Owner, as applicable, for (i) any and all expenses
(including attorneys' fees for services that may be required or desirable, as determined by
the Purchaser and such other Owner, as applicable, in their sole discretion) that may be
incurred by the Purchaser and such other Owner, as applicable, in connection with any
such contest, and (ii) any and all penalties or other charges payable by the Purchaser and
such other Owner, as applicable, for failure to include such interest in its gross income.
(d) The obligations of the Borrower under this Section shall survive the
termination of this Agreement and the payment in full of the Note.
Section 3.04. Fees; Costs and Expenses. The Borrower shall pay within thirty (30)
days after demand:
(a) for each amendment of this Agreement or any Related Document, or
consent or waiver by the Purchaser under this Agreement or any Related Document, in
each case a maximum amount of $2,500 plus the reasonable fees and expenses of counsel
to the Purchaser;
(b) the reasonable fees and out of pocket expenses for counsel or other
reasonably required consultants to the Purchaser in connection with this Agreement or the
Related Documents, including, but not limited to, with respect to advising the Purchaser
as to its rights and responsibilities under this Agreement or the Related Documents or in
connection with responding to requests from the Borrower for consents, amendments and
waivers; and
(c) all of the Purchaser's reasonable out of pocket expenses (including fees
and expenses of counsel or other reasonably required consultants to the Purchaser) arising
in connection with the enforcement or administration of, or preservation of rights
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4816-9435-3832.2
(including in any bankruptcy or insolvency proceeding or any workout) in connection
with, this Agreement or the Related Documents.
Section 3.05. Computation of Interest and Fees. Interest payable hereunder shall be
calculated on the basis of a year of 360 days consisting of twelve 30 -day months. Interest shall
accrue during each period for which interest is computed from and including the first day thereof
to but excluding the last day thereof.
Section 3.06. Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall
(i) impose, modify or deem applicable any reserve, liquidity ratio,
special deposit, compulsory loan, insurance charge or similar requirement against
assets of, deposits with or for the account of, or advances, loans or other credit
extended or participated in by, the Purchaser or any Owner;
(ii) subject the Purchaser or any Owner to any Taxes of any kind
whatsoever with respect to this Agreement or the Note, or change the basis of
taxation of payments to the Purchaser or such Owner in respect thereof (except
for Indemnified Taxes covered by Section 3.07 and the imposition of, or any
change in the rate of, any Excluded Taxes payable by the Purchaser or any
Owner); or
(iii) impose on the Purchaser or any Owner any other condition, cost or
expense affecting this Agreement or the Note;
and the result of any of the foregoing shall be to increase the cost to the Purchaser or such
Owner of maintaining this Agreement or owning the Note, or to reduce the amount of any
sum received or receivable by the Purchaser or such Owner hereunder or under the Note
(whether of principal, interest or any other amount) then, upon written request of the
Purchaser or such Owner as set forth in subsection (c) below, the Borrower shall
promptly pay to the Purchaser or such Owner, as the case may be, such additional amount
or amounts as will compensate the Purchaser or such Owner, as the case may be, for such
additional costs incurred or reduction suffered.
(b) Capital Requirements. If the Purchaser or any Owner determines that any
Change in Law affecting the Purchaser or such Owner or the Purchaser's or such
Owner's parent or holding company, if any, regarding capital requirements, has or would
have the effect of reducing the rate of return on the Purchaser's or such Owner's capital
or the capital of the Purchaser's or such Owner's parent or holding company holding, if
any, as a consequence of this Agreement, or ownership of the Note, to a level below that
which the Purchaser or such Owner or the Purchaser's or such Owner's parent or holding
company could have achieved but for such Change in Law (taking into consideration the
Purchaser's or such Owner's policies and the policies of the Purchaser's or such Owner's
parent or holding company with respect to capital adequacy), then from time to time upon
written request of the Purchaser or such Owner as set forth in subsection (c) below, the
Borrower shall promptly pay to the Purchaser or such Owner, as the case may be, such
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4816-9435-3832.2
additional amount or amounts as will compensate the Purchaser or such Owner or the
Purchaser's or such Owner's parent or holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of the Purchaser or any
Owner setting forth the amount or amounts necessary to compensate the Purchaser or any
such Owner or the Purchaser's or any such Owner's parent or holding company, as the
case may be, as specified in subsection (a) or (b) above and delivered to the Borrower,
shall be conclusive absent manifest error. The Borrower shall pay the Purchaser or any
such Owner, as the case may be, the amount shown as due on any such certificate within
ten (10) days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of the Purchaser or any
such Owner to demand compensation pursuant to this Section shall not constitute a
waiver of the Purchaser's or any such Owner's right to demand such compensation.
(e) Survival. Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in this
Section shall survive the termination of this Agreement and the payment in full of the
Note and the obligations of the Borrower thereunder and hereunder.
Section 3.07. Net of Taxes, Etc.
(a) Any and all payments to the Purchaser or any Owner by the Borrower
hereunder or with respect to the Note shall be made free and clear of and without
deduction or withholding for any and all Indemnified Taxes. If the Borrower shall be
required by law to deduct or withhold any Indemnified Taxes imposed by the United
States or any political subdivision thereof from or in respect of any sum payable
hereunder or with respect to the Note, then (i) the sum payable shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Purchaser or such Owner
receives an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall timely
pay the full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law. If the Borrower shall make any payment under this
Section to or for the benefit of the Purchaser or such Owner with respect to Indemnified
Taxes and if the Purchaser or such Owner shall claim any credit or deduction for such
Indemnified Taxes against any other taxes payable by the Purchaser or such Owner to
any taxing jurisdiction in the United States then the Purchaser or such Owner shall pay to
the Borrower an amount equal to the amount by which such other taxes are actually
reduced; provided, that the aggregate amount payable by the Purchaser or such Owner
pursuant to this sentence shall not exceed the aggregate amount previously paid by the
Borrower with respect to such Indemnified Taxes. In addition, the Borrower agrees to
pay any present or future stamp, recording or documentary taxes and any other excise or
property taxes, charges or similar levies that arise under the laws of the United States or
any state of the United States from any payment made hereunder or under the Note or
from the execution or delivery of this Agreement or the Note, or otherwise with respect to
this Agreement or the Note (hereinafter referred to as "Other Taxes"). The Purchaser or
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4816-9435-3832.2
such Owner shall provide to the Borrower within a reasonable time a copy of any written
notification it receives with respect to Indemnified Taxes or Other Taxes owing by the
Borrower to the Purchaser or such Owner hereunder; provided, that the Purchaser or such
Owner's failure to send such notice shall not relieve the Borrower of its obligation to pay
such amounts hereunder.
(b) The Borrower shall, to the fullest extent permitted by law and subject to
the provisions hereof, pay the Purchaser or such Owner for the full amount of
Indemnified Taxes and Other Taxes including any Indemnified Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section paid by the Purchaser
or such Owner or any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally asserted; provided, that the Borrower shall not be obligated to
pay the Purchaser or such Owner for any penalties, interest or expenses relating to
Indemnified Taxes or Other Taxes arising from the Purchaser or such Owner's gross
negligence or willful misconduct. The Purchaser or such Owner agrees to give notice to
the Borrower of the assertion of any claim against the Purchaser or such Owner relating
to such Indemnified Taxes or Other Taxes as promptly as is practicable after being
notified of such assertion; provided, that the Purchaser or such Owner's failure to notify
the Borrower promptly of such assertion shall not relieve the Borrower of its obligation
under this Section. Payments by the Borrower pursuant to this Section shall be made
within thirty (30) days from the date the Purchaser or such Owner makes written demand
therefor, which demand shall be accompanied by a certificate describing in reasonable
detail the basis thereof. The Purchaser or such Owner agrees to repay to the Borrower
any refund (including that portion of any interest that was included as part of such
refund) with respect to Indemnified Taxes or Other Taxes paid by the Borrower pursuant
to this Section received by the Purchaser or such Owner for Indemnified Taxes or Other
Taxes that were paid by the Borrower pursuant to this Section and to contest, with the
cooperation and at the expense of the Borrower, any such Indemnified Taxes or Other
Taxes which the Purchaser or such Owner or the Borrower reasonably believes not to
have been properly assessed.
(c) Within thirty (30) days after the date of any payment of Indemnified Taxes
by the Borrower, the Borrower shall furnish to the Purchaser or such Owner, as
applicable, the original or a certified copy of a receipt evidencing payment thereof.
(d) Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in this Section shall
survive the termination of this Agreement and the payment in full of the Note and the
obligations of the Borrower thereunder and hereunder.
Section 3.08. Method and Application of Payments. All payments by or on behalf of
the Borrower to the Purchaser hereunder shall be fully earned when due and nonrefundable when
paid and made in lawful currency of the United States of America and in immediately available
funds. Amounts payable to the Purchaser hereunder shall be transferred to the Purchaser at such
account as the Purchaser may specify from time to time in writing to the Borrower. Any
payment received by the Purchaser after 3:30 p.m. on the date payment is due shall be deemed to
20
4816-9435-3832.2
have been received by the Purchaser on the next Business Day. If any payment hereunder is due
on a day that is not a Business Day, then such payment shall be due on the next succeeding
Business Day, and, in the case of the computation of the interest or fees hereunder, such
extension of time shall, in such case, be included in the computation of the payment due
hereunder. Payments received by the Purchaser shall be applied, first, to any fees, costs, charges
or expenses payable by the Borrower under this Agreement; second, to past due interest; third, to
current interest; and, fourth, to principal.
Section 3.09. Maintenance of Accounts. The Purchaser shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness of the Borrower and
the amounts payable and paid from time to time hereunder. In any legal action or proceeding in
respect of this Agreement, the entries made in such account or accounts shall be presumptive
evidence of the existence and amounts of the obligations of the Borrower therein recorded. The
failure to record any such amount shall not, however, limit or otherwise affect the obligations of
the Borrower hereunder to repay all amounts owed hereunder, together with all interest accrued
thereon as provided herein.
Section 3.10. Cure. The Purchaser shall have the right, but not the obligation, to cure
any Default, Event of Default or event of nonperformance. The Borrower agrees to pay to the
Purchaser on demand, any amounts advanced by or on behalf of the Purchaser, to the extent
required to cure any Default, Event of Default or event of nonperformance under this Agreement
or any Related Document, together with interest thereon at the Default Rate. The Purchaser shall
give the Borrower reasonably prompt notice of any such advances.
Section 3.11. Maximum Lawful Rate.
(a) If the amount of interest payable for any period in accordance with the
terms hereof or the Note exceeds the amount of interest that would be payable for such
period had interest for such period been calculated at the Maximum Lawful Rate, then
interest for such period shall be payable in an amount calculated at the Maximum Lawful
Rate for such period.
(b) Any interest that would have been due and payable for any period but for
the operation of subsection (a) above shall accrue and be payable as provided in this
subsection (b) and shall, less interest actually paid to the Purchaser or any other Owner,
as applicable, for such period, constitute the "Excess Interest Amount." If there is any
accrued and unpaid Excess Interest Amount as of any date then the principal amount with
respect to which interest is payable shall bear interest at the Maximum Lawful Rate, until
payment to the Purchaser and each other Owner, as applicable, of the entire Excess
Interest Amount.
(c) Notwithstanding the foregoing, on the date on which no principal amount
hereunder remains unpaid, to the extent possible without violating Applicable Law, the
Borrower shall pay to the Purchaser and each other Owner, as applicable, a fee equal to
any accrued and unpaid Excess Interest Amount.
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ARTICLE IV
CONDITIONS PRECEDENT TO PURCHASE OF NOTE
Section 4.01. Documentary Requirements. The obligation of the Purchaser to
purchase the Note is subject to the conditions precedent that the Purchaser shall have received,
on or before the Closing Date, the items listed below in this Section, each dated and in form and
substance as is satisfactory to the Purchaser. However, should the Purchaser purchase the Note
prior to its receipt and approval of any of the following items, such purchase shall not be deemed
to be a waiver of any documentary requirement.
(a) The following Borrower organizational documents:
(i) Copies of the resolutions of the Borrower approving the execution
and delivery of this Agreement and the Related Documents to which the Borrower
is a parry, approving the form of the Related Documents to which it is not a party
and the other matters contemplated hereby and thereby, certified by its Secretary
as being true and complete and in full force and effect on the Closing Date;
(ii) The organizational documents of the Borrower, certified to be in
full force and effect as of a date not more than thirty (30) days preceding the
Closing Date by an appropriate official of the State and certified by its Secretary
to be in full force and effect on the Closing Date;
(iii) Certificates issued by an appropriate official of the State, issued no
more than thirty (30) days preceding the Closing Date, stating that the Borrower is
in good standing in such jurisdiction;
(iv) A certificate of the Borrower certifying the names and signatures
of the persons authorized to sign, on behalf of the Borrower, this Agreement and
the Related Documents to which it is a party and the other documents to be
delivered by it hereunder or thereunder;
(v) A letter from the Internal Revenue Service to the effect that the
Borrower is an organization described in Section 501(c)(3) of the Code, and is
exempt from federal income taxation under Section 501(a) of the Code;
(vi) A certified copy of the investment policy of the Borrower; and
(vii) Copies of all Hedge Agreements to which the Borrower is a parry.
(b) The following financing documents:
(i) An executed original of this Agreement and each of the Related
Documents;
(ii) The specimen Note;
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4816-9435-3832.2
(iii) Such financing statements as may be required by the Purchaser;
R$TfI
(iv) Copies of Uniform Commercial Code, judgment and litigation, tax
liens and bankruptcy search reports dated a date reasonably near to the Closing
Date, listing all effective financing statements which name the Borrower (under
its present names and any previous names) as debtor, together with (a) copies of
such financing statements and (b) such Uniform Commercial Code termination
statements as the Purchaser may reasonably request.
(c) The following opinions, addressed to the Purchaser or on which the
Purchaser is otherwise expressly authorized to rely:
(i) From counsel to the Borrower, as to the due authorization,
execution and delivery of this Agreement and each of the Related Documents to
which it is a parry, their validity, binding effect and enforceability, the Borrower's
status as an organization described in Section 501(c)(3) of the Code, and such
other customary matters as the Purchaser may reasonably request;
(ii) From Bond Counsel, in customary form, an opinion to the effect
that the Note has been duly authorized and validly issued, that the Financing
Agreement creates a valid lien on the Revenues and that interest on the Note will
not be included in gross income of the Owners thereof for federal tax purposes;
and
(iii) Each other opinion delivered by any Person pursuant to the Related
Documents.
(d) The following documents relating to the Project:
(i) The Lease;
(ii) Copies of all security agreements or instruments constituting Liens
on any portion of the Project or on any Property located on the Land, and related
UCC -1 Financing Statements; and
(iii) Such other documentation with respect to the Project as may be
reasonably requested by the Purchaser.
(e) Evidence of liability and casualty insurance satisfactory to the Purchaser.
(f) A certificate signed by a principal officer of the Borrower, stating that on
and as of the Closing Date (i) the Borrower is in compliance with all of the terms,
provisions and conditions of each financial covenant and any other material provision of
this Agreement and the Related Documents and any Contract entered into in connection
with any Indebtedness; (ii) all requirements and preconditions to the issuance, execution,
delivery and purchase of the Note shall have been satisfied; (iii) the Borrower has
complied with all agreements and covenants and satisfied all conditions stated in this
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4816-9435-3832.2
Agreement on its part to be performed or satisfied at or prior to the Closing Date; (iv)
since December 31, 2018 there has been no event or occurrence which has caused or
might reasonably be anticipated to cause a Material Adverse Effect or which may
adversely affect the consummation of the transactions contemplated by this Agreement
and the Related Documents; (v) each representation and warranty on the part of the
Borrower contained in this Agreement and the Related Documents is true and correct as
though made on and as of the Closing Date, (vi) no Default or Event of Default has
occurred and is continuing or would result from the execution or performance of this
Agreement or the Related Documents to which the Borrower is a party; and (vii) no
petition by or against the Borrower has at any time been filed under the Bankruptcy Code
or under any similar Law.
(g) Such other instruments, documents and opinions as the Purchaser shall
reasonably require to evidence and secure the obligations of the Borrower under this
Agreement and the Related Documents and to comply with the provisions of this
Agreement and the Related Documents and the requirements of any Governmental
Authority to which the Purchaser or the Borrower is subject.
Section 4.02. Credit Requirements. Prior to the Closing Date, the Purchaser shall have
determined, in its sole discretion, based in part upon the information and reports submitted by the
Borrower, that the Borrower has met the Purchaser's credit requirements.
Section 4.03. Additional Conditions Precedent. On or prior to the Closing Date, the
Borrower shall have paid all reasonable costs and expenses of the Purchaser in connection with
the execution and delivery of this Agreement, the Related Documents and any other documents
delivered in connection with any of the foregoing including the reasonable fees and expenses of
counsel for the Purchaser and all costs associated with any title/lien searches.
ARTICLE V
REPRESENTATION AND WARRANTIES
The Borrower represents and warrants to the Purchaser as of the Closing Date as follows:
Section 5.01. Organization; Power; Qualification. The Borrower (a) is duly
organized, validly existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, (b) has the power and authority to own its Properties and to carry on
its businesses as now being conducted and as currently contemplated to be conducted hereafter
and (c) is duly qualified and authorized to do business in each jurisdiction in which the character
of its Properties or the nature of its business requires such qualification and authorization.
Section 5.02. Authorization; Enforceability. The Borrower has the right, power and
authority and has taken all necessary corporate and other action to authorize the execution,
delivery and performance of this Agreement and each of the Related Documents to which it is a
party in accordance with their respective terms. This Agreement and each of the Related
Documents to which it is a party have been duly executed and delivered by the duly authorized
officers of the Borrower, and each such document constitutes the legal, valid and binding
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4816-9435-3832.2
obligation of the Borrower enforceable in accordance with its terms, except as such
enforceability may be limited by (a) the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar Law affecting creditors' rights generally, and (b) general
principles of equity (regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 5.03. Compliance of Agreement and Related Documents with
Organizational Documents, Etc. The execution, delivery and performance by the Borrower of
this Agreement and each of the Related Documents to which it is a party, in accordance with
their respective terms, and the transactions contemplated hereby and thereby do not and will not
(a) contravene or conflict with the Borrower's articles of incorporation, by-laws or other
organizational documents, (b) require any consent or approval of any creditor of the Borrower,
(c) violate any Applicable Law (including Regulations G, T, U or X of the Board of Governors
of the Federal Reserve System, or any successor regulations), (d) conflict with, result in a breach
of or constitute a default under any Contract to which the Borrower is a parry or by which it or
any of its Property may be bound or (e) result in or require the creation or imposition of any Lien
upon any Property now owned or hereafter acquired by the Borrower except such Liens, if any,
expressly created by this Agreement or the Related Documents.
Section 5.04. Governmental Approvals. All authorizations, consents, and other
Governmental Approvals necessary for the Borrower to enter into this Agreement and the
Related Documents to which it is a party and perform the transactions contemplated hereby and
thereby have been obtained and remain in full force and effect and are subject to no further
administrative or judicial review. No other authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority is required for the due execution, delivery
and performance by the Borrower of this Agreement and each of the Related Documents to
which it is a party.
Section 5.05. Compliance with Applicable Law. The Borrower is in compliance in all
material respects with the requirements of all Applicable Laws, including all Governmental
Approvals, except in such instances in which (a) such requirement of Applicable Law is being
contested in good faith by appropriate proceedings diligently conducted by or on behalf of the
Borrower and (b) the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect and will not cause a Material Adverse Change.
Section 5.06. Title to Properties. The Borrower has good, marketable title to or a
leasehold interest in its Property. None of the Property of the Borrower is subject to any Lien,
except Permitted Liens. The Borrower has complied with all obligations under all leases to
which it is a party and under which it is in occupancy, and all such leases are in full force and
effect. The Borrower enjoys peaceful and undisturbed possession under all such leases.
Section 5.07. Tag Returns and Payments. (a) All federal, state and other tax returns of
the Borrower required by law to be filed have been duly filed, (b) all federal, state and other
taxes, assessments and other governmental charges or levies upon the Borrower, and the
respective properties, income, profits and assets of the Borrower that are due and payable have
been paid and (c) the charges, accruals and reserves on the books of the Borrower in respect of
such taxes and charges that are not yet due and payable are adequate to pay such taxes and
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4816-9435-3832.2
charges when such taxes and charges become due and payable, and the Borrower does not know
of any reason to anticipate any additional assessments for any of such years for which adequate
reserves have not been established.
Section 5.08. Litigation. There are no actions, suits or proceedings pending or
threatened against the Borrower or any Affiliate of the Borrower or any Property of the Borrower
or any such Affiliate before any Governmental Authority, which, in any case, (a) may have a
Material Adverse Effect, (b) seek injunctive relief, (c) allege any criminal misconduct by the
Borrower or any Affiliates of the Borrower, or (d) allege the violation of any Environmental
Laws or (e) are asserted against any Plan, its fiduciaries or its assets or against the Borrower or
any member of the ERISA Group in connection with any Plan (any of the foregoing referred to
herein as "Material Litigation").
Section 5.09. Absence of Defaults and Events of Default.
(a) No Default or Event of Default has occurred and is continuing.
(b) No defaults by the Borrower or any Affiliate of the Borrower exist under
any Contracts or judgments, decrees or orders, except for defaults that, singly or in the
aggregate, have not had and will not have a Material Adverse Effect.
Section 5.10. Financial Statements. The balance sheet of the Borrower as of December
31, 2018 and the related statement of revenues and expenses and changes in financial position for
the Fiscal Year then ended and the auditors' reports with respect thereto and the balance sheet of
the Borrower as of June 30, 2019 and the related statement of revenues and expenses and
changes in financial position for the quarter then ended, copies of which have heretofore been
furnished to the Purchaser, are complete and correct and fairly present the financial condition,
changes in financial position and results of operations of the Borrower for such dates and for
such periods, and were prepared in accordance with GAAP. Since December 31, 2018, there has
been no (a) Material Adverse Change or (b) increase in the Long -Term Indebtedness of the
Borrower, except for Indebtedness relating to the Note.
Section 5.11. Accuracy and Completeness of Information. All information, reports,
financial statements and other papers and data furnished to the Purchaser or its counsel by or on
behalf of the Borrower to the Purchaser were, at the time the same were so furnished, complete
and correct in all material respects, to the extent necessary to give the recipient a true and
accurate knowledge of the subject matter. No fact is known to the Borrower which has had or in
the reasonable judgment of the Borrower may in the future have a Material Adverse Effect which
has not been set forth in the financial statements referred to in Section 5.10 or in such
information, reports or other papers or data or otherwise disclosed in writing to the Purchaser
prior to the Closing Date. Any financial, budget and other projections furnished to the Purchaser
by the Borrower were prepared in good faith on the basis of the assumptions stated therein,
which assumptions were fair and reasonable in light of the conditions existing at the time of
delivery of such financial, budget or other projections, and represented, and as of the date of this
representation, represent the Borrower's best estimate of its future financial performance. No
document furnished or other written statement made to the Purchaser in connection with the
negotiation, preparation or execution of this Agreement or the Related Documents contains or
26
4816-9435-3832.2
will contain any untrue statement of a material fact or omits or will omit to state (as of the date
made or furnished) any material fact necessary in order to make the statements contained herein
or therein, in light of the circumstances under which they were or will be made, not misleading.
Section 5.12. Income Tax Status. The Borrower is an organization described in Section
501(c)(3) of the Code, is not a "private foundation" as defined by Section 509(a) of the Code and
is exempt from federal income tax under Section 501(a) of the Code, except for taxes imposed
on unrelated business income pursuant to Section 511 of the Code. The Borrower has not
received any notice from the Internal Revenue Service that its respective returns are being
audited or its respective status as an organization described in Section 501(c)(3) of the Code is
being investigated or challenged. The Borrower is in continued compliance with all
requirements of such status. The Borrower has not taken any action or omitted to take any
action, and to the best of its knowledge, knows of no action taken or omitted to be taken by any
other Person, which action, if taken or omitted, could adversely affect the exclusion of interest on
the Note from gross income for federal income tax purposes or the exemption of such interest
from State personal income taxes.
Section 5.13. Incorporation of Representations and Warranties. Except for those
representations and warranties which due to the passage of time are no longer true, the Borrower
hereby makes to the Purchaser the same representations and warranties made by the Borrower in
each Related Document to which it is a party, which representations and warranties, together
with the related definitions of terms contained therein, are incorporated herein by this reference
with the same effect as if each and every such representation and warranty and definition were
set forth herein in its entirety. No amendment to or waiver of such representations, warranties,
covenants or definitions made pursuant to the relevant Related Document or incorporated by
reference shall be effective to amend such representations and warranties and definitions as
incorporated by reference herein without the prior written consent of the Purchaser.
Section 5.14. No Usury.
(a) The terms of this Agreement and the Related Documents regarding the
calculation and payment of interest and fees do not violate any applicable usury laws.
(b) The Note is not subject to any Applicable Law prescribing a maximum
rate of interest.
Section 5.15. Insurance. The Borrower currently maintains insurance of such type and
in such amounts or in excess of such amounts as are customarily carried by, and insures against
such risks as are customarily insured against by, businesses of like type, size and character to the
Borrower and as required by the Financing Agreement.
Section 5.16. Reserved.
Section 5.17. Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and is in compliance in all material respects with the applicable provisions
of ERISA and the Code with respect to each Plan. No member of the ERISA Group, any plan
administrator or any of their respective agents or representatives has: (a) sought a waiver of the
27
4816-9435-3832.2
minimum funding standard under Section 412 of the Code or Section 303 of ERISA in respect of
any Plan; (b) failed to make any contribution or payment to any Plan, or made any amendment to
any Plan or benefit arrangement, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Code; (c) incurred any liability under
Title IV of ERISA other than a liability to the PBGC for premiums under Section 4007 of
ERISA; (d) received notice from any Person concerning the imposition of Withdrawal Liability
or a determination or expected determination of insolvency or reorganization within the meaning
of Title IV of ERISA; (e) filed a notice of intent to terminate a Plan with unfunded liabilities, (f)
received notice from the PBGC regarding the institution of proceedings to terminate a Plan,
impose liability (other than for premiums under Section 4007 of ERISA) in respect of any Plan,
or that a trustee is or will be appointed to administer a Plan, or (g) notice or knowledge of the
institution of proceedings under Section 515 of ERISA for the enforcement of contributions to a
Multiemployer Plan.
Section 5.18. Investment Company Act. Neither the Borrower nor any of its Affiliates
is an "investment company" or a company "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended.
Section 5.19. Federal Reserve Board Regulations. The Borrower is not engaged
principally, or as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying Margin Stock.
Section 5.20. Pending Legislation and Decisions. To the best knowledge of the
Borrower, there is no proposed amendment to the Constitution of the State or any State law or
any published administrative interpretation of the Constitution of the State or any State law, or
any proposition or referendum (or proposed proposition or referendum) or other ballot initiative
or any legislation that has passed either house of the legislature of the State, or any published
judicial decision interpreting any of the foregoing, the effect of which could reasonably be
expected to adversely affect (a) the issuance of, or security for, the Note, (b) the rights or
remedies of the Purchaser or of any Owner of the Note, or (c) the power or ability of the
Borrower to perform its obligations hereunder or under any of the Related Documents including
the Borrower's ability to repay when due its obligations under this Agreement, any Related
Document or any of its Material Indebtedness.
Section 5.21. Environmental Matters. In the ordinary course of its business, the
Borrower conducts an ongoing review of the effect of Environmental Laws on its business,
operations and Properties, in the course of which it identifies and evaluates associated liabilities
and costs (including any capital or operating expenditures required for clean up or closure of
Properties presently or previously owned or operated, any capital or operating expenditures
required to achieve or maintain compliance with environmental protection standards imposed by
Applicable Law or as a condition of any license, permit or contract, and related constraints on
operating activities, including any periodic or permanent shutdown of any facility or reduction in
the level of or change in the nature of operations conducted there at and any actual or potential
liabilities to third parties, including employees, and any related costs and expenses). On the
basis of this review, the Borrower has reasonably concluded that it has not failed to comply with
any Environmental Laws in a manner which may have a Material Adverse Effect.
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4816-9435-3832.2
Section 5.22. Anti -Terrorism Representations.
(a) Neither the Borrower nor any of its Affiliates is in violation of any laws
relating to terrorism or money laundering ("Anti -Terrorism Laws"), including Executive
Order No. 13224 on Terrorist Financing, effective September 24, 2001 (the "Executive
Order"), and the Patriot Act;
(b) Neither the Borrower nor any of its Affiliates is any of the following:
(i) a Person that is listed in the annex to, or is otherwise subject to the
provisions of, the Executive Order;
(ii) a Person owned or controlled by, or acting for or on behalf of, any
Person that is listed in the annex to, or is otherwise subject to the provisions of,
the Executive Order;
(iii) a Person with which the Purchaser is prohibited from dealing or
otherwise engaging in any transaction by any Anti -Terrorism Law;
(iv) a Person that commits, threatens or conspires to commit or
supports "terrorism" as defined in the Executive Order; or
(v) a Person that is named as a "specially designated national and
blocked person" on the most current list published by the Office of Foreign Asset
Control ("OFAC") or any list of Persons issued by OFAC pursuant to the
Executive Order at its official website or any replacement website or other
replacement official publication of such list;
(c) Neither the Borrower nor any of its Affiliates (i) conducts any business or
engages in making or receiving any contribution of funds, goods or services to or for the
benefit of any Person described in subsection (b) above, (ii) deals in, or otherwise
engages in any transaction relating to, any Property or interests in Property blocked
pursuant to the Executive Order or (iii) engages in or conspires to engage in any
transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts
to violate, any of the prohibitions set forth in any Anti -Terrorism Law.
Section 5.23. Reserved.
Section 5.24. Labor Matters. There are no strikes, walkouts, lockouts or other material
labor disputes or grievances against the Borrower or, to the knowledge of the Borrower,
threatened against or affecting the Borrower, and no significant unfair labor practice, charges or
grievances are pending against the Borrower, to the knowledge of the Borrower, threatened
against it before any Governmental Authority which could reasonably be expected to have a
Material Adverse Effect.
Section 5.25. Sovereign Immunity. The Borrower is not entitled to claim, and shall not
assert any claim, with respect to itself or its Property (irrespective of the use or intended use
thereof), of immunity on the grounds of sovereignty or similar grounds from suit, jurisdiction of
29
4816-9435-3832.2
any court, relief by way of injunction, order for specific performance or for recovery of property,
attachment of its assets (whether before or after judgment, in aid of execution, or otherwise) or
execution or enforcement of any judgment to which it or its Property might otherwise be entitled
in any suit, action or proceeding relating to this Agreement or any Related Document in the
courts of any jurisdiction, nor may there be attributed to the Borrower or its Property any such
immunity (nor shall such attribution be claimed by the Borrower).
Section 5.26. Taxpayer Identification Number. The Borrower's U.S. taxpayer
identification number is 45-2563299.
Section 5.27. Concerning the Project
(a) The Plans and Specifications and the anticipated use of the Project comply
with all applicable restrictive covenants, zoning ordinances, building laws and other
Applicable Laws (including the Americans with Disabilities Act, as amended). The
current zoning classification of the Land and any covenants and restrictions affecting the
Land permit the acquisition and intended use of the Project. The Borrower has obtained
(to the extent obtainable at this time) all permits and approvals of any type required to
construct the Project, and all such permits and approvals are final and unappealable and
remain in full force and effect without restriction or modification. All public
improvements included in the Project have been fully authorized by the appropriate
Governmental Authority. The Borrower has satisfied all conditions imposed by any
Governmental Authority in connection with any grant of subdivision or land development
approval.
(b) No notice of taking by eminent domain or condemnation of any part of the
Land has been received, and the Borrower has no knowledge that any such proceeding is
contemplated.
(c) No part of the Project has been damaged as a result of any fire, explosion,
accident, flood or other casualty which is not now fully restored.
(d) The Project has, or will have upon completion of construction, adequate
legal vehicular and pedestrian access to public roads; sewer, water and all other
appropriate utilities are available in sufficient quantities at ordinary costs through public
or unencumbered private easements to serve the Project; and if applicable, required
written approvals of septic tanks or wells have been issued by all appropriate
Governmental Authorities.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that it will comply, and will cause each Affiliate of
the Borrower to comply, with the following affirmative covenants until the date on which no
amount is due or owing to the Purchaser under this Agreement, the Note or any other Related
Document, unless the Purchaser shall otherwise consent in writing:
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4816-9435-3832.2
Section 6.01. Compliance with Applicable Laws. The Borrower shall comply with all
Applicable Laws, including all Environmental Laws.
Section 6.02. Reporting Requirements. The Borrower and each Affiliate of the
Borrower shall keep proper books of record and account in which full, true and correct entries
will be made of all dealings or transactions of or in relation to the business and affairs of such
Person on a consolidated or combined basis in accordance with GAAP. The Borrower shall
furnish to the Purchaser two copies of each of the following:
(a) Annual Financial Statements. As soon as available, and in any event
within 150 days after the close of each Fiscal Year of the Borrower, the financial
statements of the Borrower which shall be audited and reported on without qualification
by an Accountant and shall be certified to the Borrower by such Accountant as (i) having
been prepared in accordance with GAAP (applied on a basis consistent with that of the
preceding Fiscal Year) and (ii) fairly presenting the financial condition of the Borrower
as of the end of such Fiscal Year and reflecting its operations during such Fiscal Year and
(iii) showing all material liabilities, direct or contingent, and disclosing the existence of
any Off -Balance Sheet Liability, and shall include balance sheets, profit and loss
statements and statements of cash flows, together with notes and supporting schedules, all
on a consolidated and consolidating basis and in reasonable detail and including a copy of
any management letter or audit report provided to the Borrower by such Accountant.
(b) Quarterly Financial Statements. As soon as available, and in any event
within 45 days after the end of each fiscal quarterly period of each Fiscal Year of the
Borrower, the unaudited financial statements of the Borrower, including a balance sheet,
profit and loss statement, statement of cash flow and notes as of the end of such fiscal
quarterly period and for such fiscal quarterly period and the current Fiscal Year to the end
of such fiscal quarterly period, which shall be internally prepared by management of the
Borrower and presented to the Purchaser on a consistent basis, along with a certification
by a principal financial officer of the Borrower as to the matters set forth under clauses
(i), (ii) and (iii) of subsection (a) above.
(c) Certificate of Compliance. Simultaneously with the delivery of each set
of financial statements referred to in subsections (a) and (b) of this Section, a certificate
substantially in the form of Exhibit B signed by a principal financial officer of the
Borrower, (i) stating that such officer has made a review of activities during the
preceding period for the purpose of determining whether the Borrower has complied with
all of the terms, provisions and conditions of this Agreement and the Related Documents,
[and] (ii) attesting that, to the best of his/her knowledge, the Borrower has kept, observed,
performed and fulfilled each and every such covenant, provision and condition on its part
to be performed and no Event of Default or Default has occurred, or if an Event of
Default or Default has occurred such certificate shall specify such event or condition, the
nature and status thereof and any remedial steps taken or proposed to correct such event
or condition [and (iii) containing calculations of the applicable financial covenants (to the
extent applicable as of such date), including those in Section 6.20, certified by such
officer to be accurate and complete and made in accordance with this Agreement.
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4816-9435-3832.2
(d) Other Reports. Promptly upon request by the Purchaser, copies of any
financial statement or report furnished to any other holder of any securities or the Long -
Term Indebtedness of the Borrower and not otherwise required to be furnished to the
Purchaser pursuant to any other subsection of this Section.
(e) Amendments. Promptly after the adoption thereof, copies of any
amendments of or supplements to the articles of incorporation, by-laws or other
organizational documents of the Borrower and copies of any amendments to any of the
Related Documents.
(f) Material Event Notices. Immediately following any dissemination,
distribution or provision thereof to any Person, a copy of any Material Event Notice
disseminated, distributed or provided in satisfaction of or as may be required by the
provisions of Rule 15c2-12 promulgated pursuant to the Securities Exchange Act of
1934, as amended (17 C.F.R. Sec. 240 15c2-12), or any successor or similar legal
requirement.
(g) EMMA Filings. Copies of all filings made by the Borrower with EMMA
promptly after such filings are made.
(h) Hedge Agreements. Copies of all Hedge Agreements to which the
Borrower is a parry and all documents related thereto promptly following the execution
and delivery of such Hedge Agreements and documents.
(i) Other Information. Such other information respecting the business,
properties or the condition or operations, financial or otherwise, of the Borrower or any
Affiliate of the Borrower as the Purchaser may from time to time reasonably request,
including reports of any governmental audits and inspections.
Section 6.03. Notices
(a) Notice of Default. The Borrower shall provide to the Purchaser
immediate notice by telephone, promptly confirmed in writing, of any Default or Event
of Default.
(b) Notice of Material Adverse Change, Material Adverse Effect and
Taxable Date. The Borrower shall provide to the Purchaser in writing, promptly upon
learning thereof, notice of any Material Adverse Change or Taxable Date and any event
which constitutes or could reasonably be expected to have a Material Adverse Effect or
could reasonably be expected to cause a Taxable Date to occur.
(c) Litigation and other Notices. The Borrower shall provide to the
Purchaser in writing, promptly upon learning thereof, notice of:
(i) any Material Litigation or any other actions, suits, proceedings,
inquiry or investigation before any Governmental Authority against the Borrower
or any Affiliate of the Borrower which involve claims equal to or in excess of
$250,000;
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(ii) any criminal investigation or proceeding by a Governmental
Authority involving the Borrower or any Affiliate of the Borrower or any officer
or managerial employee of the Borrower or any Affiliate of the Borrower;
(iii) any communication from any labor union of an intent to strike the
Borrower or any Affiliate of the Borrower at a future date with such notice to
include a description of the action or actions that it proposes to take with respect
thereto; and
(iv) the occurrence of any event described in Section 5.17.
(d) Certain Related Document Notices. The Borrower shall furnish to the
Purchaser a copy of any material notice, certification, demand or other writing or
communication given by the Issuer to the Borrower or by the Borrower to the Issuer
under or in connection with any of the Related Documents, in each case promptly after
the receipt or giving of the same. Without limiting the foregoing, the Borrower shall
provide notice to the Purchaser upon any redemption, repayment, defeasance or other
payment or deemed payment of the Note pursuant to the Financing Agreement.
(e) Notice of Dispute. The Borrower shall promptly give written notice to the
Purchaser of any material dispute which may exist between the Borrower and the Issuer
or any dispute in connection with any transaction contemplated under any Related
Document.
Section 6.04. Further Assurances. The Borrower shall, upon the request of the
Purchaser, from time to time, execute and deliver and, if necessary, file, register and record such
further financing statements, amendments, continuation statements and other documents and
instruments and take such further action as may be reasonably necessary to effect the provisions
of this Agreement and the Related Documents. Except to the extent it is exempt therefrom, the
Borrower will pay or cause to be paid all filing, registration and recording fees incident to such
filing, registration and recording, and all expenses incident to the preparation, execution and
acknowledgment of such instruments of further assurance, and all federal or state fees and other
similar fees, duties, imposts, assessments and charges arising out of or in connection with the
execution and delivery of this Agreement, the Related Documents and such instruments of
further assurance.
Section 6.05. Right of Entry; Communication with Accountants. The Borrower shall
permit the duly authorized agents or representatives of the Purchaser during normal business
hours and upon reasonable notice to visit and inspect any of the premises of the Borrower, or any
parts thereof, and to examine its financial and corporate books, records and accounts and to make
copies thereof and extracts therefrom, and to discuss the Borrower's affairs, finances, business
and accounts with its officers, employees and agents.
Section 6.06. Payment of Obligations; Removal of Liens. The Borrower will pay (a)
all of its Indebtedness in accordance with the terms thereof, (b) all amounts payable by it
hereunder and under the Related Documents according to the terms hereof and thereof and (c) all
assessments or other governmental charges before the same become delinquent, all taxes,
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4816-9435-3832.2
assessments (general or special) and governmental charges of any kind whatsoever that may be
at any time lawfully assessed or levied against or with respect to the Borrower or any of its
Property or any interest thereon and promptly discharge or cause to be discharged all Liens
(other than Permitted Liens), fees and charges on such Property; provided that the Borrower may
withhold payment of sums described under subpart (c) where (i) the validity or amount thereof is
being contested in good faith by appropriate proceedings diligently conducted by or on behalf of
the Borrower, (ii) the Borrower has set aside on its books adequate reserves with respect thereto
in accordance with GAAP and (iii) the failure to make payment pending such contest could not
result in a Material Adverse Effect.
Section 6.07. Reserved.
Section 6.08. Insurance. The Borrower will at all times maintain insurance with respect
to its business operations and Properties against such risks, in such amounts, with such
companies and with such deductibles as is customary for business operations and Properties of
like size, location and character to those of the Borrower and which complies with the
requirements of the Financing Agreement.
Section 6.09. Reserved.
Section 6.10. Employee Benefit Plan Compliance. Each ERISA Group member shall
maintain and administer all Plans maintained by such ERISA Group member in compliance with
their terms and in all material respects with all Applicable Laws, including ERISA and the Code;
shall not permit any such Plan to experience unfunded liabilities; nor shall such ERISA Group
member permit a condition to exist or a transaction to occur with respect to any Plan maintained
by such ERISA Group member which could reasonably be expected to result in the incurrence
by such ERISA Group member of any material liability, fine or penalty. Each ERISA Group
member shall not, with regard to any Plan (a) engage in or permit any other party to engage in
any "prohibited transaction" (as defined in Section 4975 of the Code) with respect to a Plan, (b)
permit any Plan to incur any "accumulated funding deficiency" (as defined in Section 412 of the
Code or Section 302 of ERISA) whether or not waived, (c) either directly or indirectly, cause any
Plan to terminate, either under Section 4041 or 4042 of ERISA, in a manner that could result in
the imposition of a material Lien on the assets of an ERISA Group member pursuant to Section
4068 of ERISA or (d) take or permit any action that could result in a withdrawal or partial
withdrawal from a Plan and result in the assessment of any Withdrawal Liability against an
ERISA Group member; provided, that in the case of this clause (d), said withdrawal or partial
withdrawal shall be permissible if the resultant liability could not reasonably be expected to
result in a Material Adverse Effect.
Section 6.11. Disclosure to Participants. The Borrower agrees to permit the Purchaser
to disclose any information received by the Purchaser in connection herewith, including the
financial information described in Section 6.02, to any assignees or Participants of the Purchaser
without notice to or further consent from the Borrower, so long as any assignee has
confidentiality obligations regarding such information as stringent as the Purchaser's.
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4816-9435-3832.2
Section 6.12. Proceeds of Note. The Note Proceeds will be used solely for the purposes
described in the Financing Agreement. None of the Note Proceeds will be used to provide
inventories or working capital for the Borrower.
Section 6.13. Compliance with Related Documents. The Borrower shall perform and
comply in all material respects with the terms and conditions of the Related Documents that are
binding on it.
Section 6.14. Maintenance of Governmental Approvals. The Borrower shall at all
times maintain in effect, renew and comply with all the terms and conditions of all consents,
licenses, approvals, authorizations and other Governmental Approvals which are necessary or
appropriate under Applicable Law to conduct its businesses and activities as of the Closing Date
and thereafter and for the execution, delivery and performance of this Agreement and the Related
Documents to which it is a party.
Section 6.15. Maintenance of Properties. The Borrower shall at all times (a) maintain,
preserve and protect all of its material properties and equipment (including the Facilities)
necessary in the operation of its business in good working order and condition, ordinary wear
and tear excepted; (b) make all necessary repairs thereto and renewals and replacements thereof,
and (c) use commercially reasonable efforts to operate and maintain the facilities owned, leased
or operated by such Person now or in the future in a manner believed by such Person to be
consistent with prevailing industry standards in the locations where the facilities exist from time
to time.
Section 6.16. Preservation of Existence, Etc. The Borrower shall (a) preserve, renew
and maintain in full force and effect its legal existence under the Applicable Laws of the
jurisdiction of its organization and good standing in the State; (b) take all reasonable action to
maintain all rights, privileges, permits, licenses, qualifications and franchises necessary for the
normal conduct of its business; (c) preserve or renew all of its registered patents, trademarks,
trade names and service marks; and (d) preserve its status as a nonprofit corporation and
maintain its status as an organization described in Section 501(c)(3) of the Code and its
exemption from federal income tax under Section 501(a) of the Code or corresponding
provisions of future federal income tax laws as well as its exemption from income tax under
applicable State law.
Section 6.17. Reserved.
Section 6.18. Reserved.
Section 6.19. Reserved.
Section 6.20. Financial Requirements.
(a) Debt Service Coverage Ratio. (i) The Borrower covenants and
agrees that it shall not, in any event, permit the Debt Service Coverage Ratio to be
below 1.25 to 1.00 with respect to any Fiscal Year; provided that failure to
maintain such ratio shall not cause an Event of Default hereunder if the Borrower
35
4816-9435-3832.2
complies with the applicable requirements of clause (ii) below, subject to clause
(iii) below.
(ii) In the event that the Borrower shall fail with respect to any Fiscal
Year to maintain a Debt Service Coverage Ratio of at least 1.25 to 1.00, the
Borrower shall (A) deliver to the Purchaser notice of such failure, and (B) retain
an Independent Consultant within one hundred fifty (150) days of the end of the
Fiscal Year which will be responsible for reviewing the operations of the
Borrower and preparing a financial plan detailing the actions the Borrower shall
be reasonably expected to undertake to correct the failure. The Independent
Consultant's plan must be filed with the Purchaser within two hundred ten (210)
days of the end of such Fiscal Year. Upon the filing, the Borrower shall
implement the Independent Consultant's plan to the extent reasonably practicable.
The Borrower's obligations hereunder shall continue with respect to each such
failure with respect to any subsequent Fiscal Year. The failure to comply with the
terms and conditions of this clause (ii) shall be deemed to constitute an Event of
Default under Section 8.01(b) hereof.
(iii) Notwithstanding the aforesaid, the failure to maintain the Debt
Service Coverage Ratio at least equal to or greater than 1.00 to 1.00 with respect
to any Fiscal Year shall be deemed to constitute an Event of Default under
Section 8.01(b) hereof.
(b) Leverage Ratio. (i) The Borrower covenants and agrees that it
shall not, in any event, permit the Leverage Ratio to be greater than 0.80 to 1.00 at
the end of any Fiscal Year; provided that failure to maintain such ratio shall not
cause an Event of Default hereunder if the Borrower complies with the applicable
requirements of clause (ii) below, subject to clause (iii) below.
(ii) In the event that the Borrower shall fail at the end of any Fiscal
Year to maintain a Leverage Ratio equal to or less than 0.80 to 1.00, the Borrower
shall (A) deliver to the Purchaser notice of such failure, and (B) retain an
Independent Consultant within one hundred fifty (150) days of the end of the
Fiscal Year which will be responsible for reviewing the operations of the
Borrower and preparing a financial plan detailing the actions the Borrower shall
be reasonably expected to undertake to correct the failure. The Independent
Consultant's plan must be filed with the Purchaser within two hundred ten (210)
days of the end of such Fiscal Year. Upon the filing, the Borrower shall
implement the Independent Consultant's plan to the extent reasonably practicable.
The Borrower's obligations hereunder shall continue with respect to each such
failure at the end of any subsequent Fiscal Year. The failure to comply with the
terms and conditions of this clause (ii) shall be deemed to constitute an Event of
Default under Section 8.01(b) hereof.
(iii) Notwithstanding the aforesaid, the failure to maintain the Leverage
Ratio at equal to or less than 1.00 to 1.00 at the end of any Fiscal Year shall be
deemed to constitute an Event of Default under Section 8.01(b) hereof.
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4816-9435-3832.2
(c) Days Cash on Hand. (i) The Borrower shall calculate Days Cash
on Hand as of the end of any Fiscal Year and as of each June 30. The Borrower
shall maintain, as of each calculation date, Days Cash on Hand of not less than
ninety (90).
(ii) In the event that the Borrower shall fail as of the end of any Fiscal
Year or as of any June 30 to maintain a Days Cash on Hand of not less than ninety
(90), the Borrower shall (A) deliver to the Purchaser notice of such failure, and
(B) retain an Independent Consultant within one hundred fifty (150) days of the
end of the Fiscal Year which will be responsible for reviewing the operations of
the Borrower and preparing a financial plan detailing the actions the Borrower
shall be reasonably expected to undertake to correct the failure. The Independent
Consultant's plan must be filed with the Purchaser within two hundred ten (210)
days of the end of such Fiscal Year. Upon the filing, the Borrower shall
implement the Independent Consultant's plan to the extent reasonably practicable.
The Borrower's obligations hereunder shall continue with respect to each such
failure at the end of any subsequent Fiscal Year. The failure to comply with the
terms and conditions of this clause (ii) shall be deemed to constitute an Event of
Default under Section 8.01(b) hereof; provided that, for the avoidance of doubt,
no Event of Default shall be deemed to occur at any time that Days Cash on Hand
is less than ninety (90) if the Borrower is otherwise in compliance with this clause
(ii).
Section 6.21. Most Favored Covenant. In the event that the Borrower has previously
entered into or shall hereafter enter into or otherwise consent to any agreement or instrument (or
any amendment, supplement or modification thereto) (each a "Relevant Agreement") under
which any Person undertakes to make loans, to refinance or restructure existing Indebtedness or
to extend credit or liquidity to the Borrower or pursuant to which the Borrower and a Person
agree to a Hedge Agreement or other similar arrangement, which Relevant Agreement (i)
provides such Person with a covenant, provision or agreement which is more restrictive, as to the
Borrower, or (ii) gives or grants greater rights or remedies to such Person whether as to timing of
payment, priority of payment or Lien or otherwise (each, a "Favored Covenant") than, in the case
of (i), are undertaken by the Borrower herein or, in the case of (ii), are given or granted to the
Purchaser herein, then each such Favored Covenant shall automatically be deemed to be
incorporated into this Agreement and the Purchaser shall have the benefits of each such Favored
Covenant as if specifically set forth in this Agreement for the duration of such Relevant
Agreement. If necessary, the Borrower shall promptly enter into an amendment to this
Agreement to include the Favored Covenant; provided that the Purchaser shall maintain the
benefit of such Favored Covenant even if the Borrower fails to provide such amendment.
Notwithstanding anything to the contrary contained in this Section, each party hereto agrees that
no provision described in this Section shall be deemed incorporated into this Agreement if such
incorporation would cause the interest on the Note to be includable in the gross income of the
Owners thereof for federal tax purposes.
Section 6.22. Filing of Agreement. In the event the Borrower delivers or permits,
authorizes or consents to the delivery of this Agreement to any Person for delivery to the
Municipal Securities Rulemaking Board, prior to such delivery the Borrower agrees that it shall
37
4816-9435-3832.2
redact such information contained herein as may be requested by the Purchaser and which is
consistent with MSRB Notice 2011-17 (February 23, 2011). Only such copy of this Agreement
reflecting such redacted material shall be delivered to the Municipal Securities Rulemaking
Board.
Section 6.23. Reserved.
Section 6.24. Reserved.
Section 6.25. Project Covenants.
(a) The Borrower covenants and agrees to undertake and complete the
Project. The Borrower shall obtain or cause to be obtained all necessary permits and
approvals for the acquisition, operation and maintenance of the Project.
(b) All construction shall be performed strictly in accordance with all
Applicable Laws. The Project shall be constructed entirely on the Land and will not
encroach upon or overhang any easement, right of way, or any other land, and shall be
constructed wholly within applicable building setback restrictions.
(c) The Borrower shall maintain during construction of the Project, "all risk"
builders risk insurance and shall cause all contractors, where appropriate, to maintain
contractors' general and professional liability insurance in form and substance
satisfactory to the Purchaser. All contractors, subcontractors, mechanics or laborers and
other persons providing labor or material in construction of the Project shall have or be
covered by worker's compensation insurance, if required by Applicable Law.
(d) Nothing contained in this Agreement or any Related Document shall
constitute or create any duty on or warranty by the Purchaser regarding (i) the proper
application by the Borrower, general contractor or any subcontractor of the Note
Proceeds, (ii) the quality or condition of the Project, (iii) the completeness or adequacy of
the Plans and Specifications or the compliance thereof with Applicable Laws or (iv) the
competence or qualifications of the general contractor or any other party furnishing labor
or materials in connection with the Project. The Borrower acknowledges and agrees that
the Borrower has not relied and will not rely upon any experience, awareness or expertise
of the Purchaser regarding such matters.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that it will comply, and will cause each Affiliate of
the Borrower to comply, with the following negative covenants until the date on which no
amount is due or owing to the Purchaser under this Agreement, the Note or any other Related
Document, unless the Purchaser shall otherwise consent in writing:
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4816-9435-3832.2
Section 7.01. Amendments. The Borrower shall not materially amend, modify or
supplement, nor agree to any material amendment or modification of, deviation from, or
supplement to, any of the Related Documents.
Section 7.02. Preservation of Existence, Ownership, Etc. The Borrower shall not (a)
dissolve nor shall it sell, lease, assign, transfer or otherwise dispose of all or substantially all of
its Property or (b) consolidate or merge with or into any other Person or permit one or more other
Persons to consolidate with or merge into it or acquire all or substantially all of the Property of
any other Person.
Section 7.03. Change of Corporate Name, State of Incorporation or Location. The
Borrower shall not (a) change its name as it appears in official filings in the state of its
incorporation or other organization, (b) change its chief executive office or principal place of
business, or the location of its records concerning the Revenues, (c) change the type of entity that
it is, (d) change its organization identification number, if any, issued by its state of incorporation
or other organization, or (e) change its state of incorporation or organization or incorporate or
organize in any additional jurisdictions, in each case without at least ninety (90) days prior
written notice to the Purchaser.
Section 7.04. Business. The Borrower shall not engage in any business other than the
business in which it is currently engaged or a business reasonably related thereto.
Section 7.05. Certain Information. The Borrower shall not include in any offering
document any information concerning the Purchaser that is not supplied in writing, or otherwise
approved, by the Purchaser expressly for inclusion therein.
Section 7.06. Reserved.
Section 7.07. Accounting Methods and Fiscal Year. The Borrower will not adopt,
permit or consent to any material change in accounting practices other than as required or
permitted by GAAP.
Section 7.08. Exempt Status. The Borrower shall not take any action or omit to take
any action that, if taken or omitted, would cause any revocation or adverse modification of its
federal income tax-exempt status or which would adversely affect the excludability of interest on
the Note from the gross income of the Owners thereof for purposes of federal income taxation
under the Code.
Section 7.09. Optional Redemption; Defeasance. The Borrower shall not:
(a) optionally redeem the Note pursuant to the Financing Agreement if, after
giving effect to such redemption, there would be any unpaid Excess Interest Amount
owing under this Agreement; or
(b) defease, nor allow the defeasance of, the Note without having
contemporaneously satisfied all of its obligations hereunder.
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4816-9435-3832.2
Section 7.10. Limitation on Hedge Agreements. The Borrower shall not enter into any
Hedge Agreement without the prior written consent of the Purchaser.
Section 7.11. Liens. The Borrower shall not permit any of its Property to be subject to
any Liens or other encumbrances other than Permitted Liens.
Section 7.12. Federal Reserve Board Regulations. The Borrower shall not (a) use any
part of the Note Proceeds for the purpose of purchasing or carrying any Margin Stock or (b)
incur any Indebtedness to be reduced, retired or purchased by the Borrower out of such Note
Proceeds. The Borrower does not own and has no intention of acquiring any Margin Stock.
Section 7.13. Indebtedness. Neither Borrower nor any Affiliate of the Borrower shall
issue, incur, assume or guarantee any Indebtedness unless:
(a) No Default or Event of Default shall have occurred and be continuing;
(b) The Borrower shall have provided to the Purchaser a certificate
substantially in the form of Exhibit B hereto, upon which the Purchaser may conclusively
rely, certifying (on the basis of calculations as of the date of the issuance, incurrence,
assumption or guarantee of such Indebtedness) that the Borrower shall be in compliance
with each of the financial covenants set forth in Section 6.20 as of the date of the
issuance, incurrence, assumption or guarantee of such Indebtedness; and
(c) The Borrower shall have complied with all of the requirements of the
Related Documents in connection with the issuance, incurrence, assumption or guarantee
of such Indebtedness.
Section 7.14. Creation of Affiliates; Loans and Transfers to Affiliates.
(a) In no event shall the Borrower lend money, transfer assets, guarantee
Indebtedness or extend credit to or for the benefit of any Affiliate, or officer or employee
of the Borrower or any Affiliate in an aggregate amount at any time outstanding in excess
of $1,000,000, without the prior written consent of the Purchaser.
(b) Without limiting the foregoing, the Borrower will not, and will not permit
any Affiliate to, sell, lease or otherwise transfer any Property to, or purchase, lease or
otherwise acquire any Property from, or otherwise engage in any other transactions with,
any of its (or their) Affiliates, except in the ordinary course of business at prices and on
terms and conditions not less favorable to the Borrower or such Affiliate than could be
obtained on an arm's length basis from unrelated third parties.
Section 7.15. Limitation of Certain Dispositions. Neither the Borrower nor any
Affiliate of the Borrower shall:
(a) sell, lease or otherwise dispose of any portion of the Facilities;
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4816-9435-3832.2
(b) sell, assign, securitize, discount or otherwise dispose of, or grant or permit
any Lien on, its or their accounts receivable, with or without recourse, including as part
of any bulk sale or financing of accounts receivable; or
(c) sell or otherwise dispose of, including any disposition by lease, any
Project Property which is "property, plant or equipment" under GAAP ("PP&E") except
for dispositions or transfers of PP&E (i) no longer necessary for the operation of the
Project; (ii) replaced by PP&E of similar type or of substantially equivalent function and
value, which replacements shall be deemed to be incorporated immediately into and
constitute an integral part of the Facilities, and be subject to the terms of this Agreement
and the Related Documents; or (iii) constituting leases in the ordinary course of business
that are Permitted Liens.
Section 7.16. Off -Balance Sheet Liabilities. Neither the Borrower nor any Affiliate of
the Borrower has entered into, or will enter into, any Off -Balance Sheet Liabilities except in
compliance with Applicable Law and except as disclosed in the financial statements of the
Borrower delivered to the Purchaser insofar as disclosure therein is required under GAAP.
Section 7.17. Investment Policy. The Borrower shall not make any material
investments except as permitted by its Investment Policy.
Section 7.18. Reserved.
Section 7.19. Regarding the Project. No portion of the Project shall be used in any
"unrelated trade or business" of the Borrower within the meaning of Section 513(a) of the Code.
Section 7.20. Reserved.
Section 7.21. Sovereign Immunity. To the extent that the Borrower has or hereafter
may acquire under any applicable law any right to immunity from set off or legal proceedings on
the grounds of sovereignty or otherwise, the Borrower hereby irrevocably waives such right to
immunity for itself and agrees not to invoke any defense of immunity in respect of its obligations
arising under or related to this Agreement or any of the Related Documents.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01. Events of Default. The occurrence of any of the following events
(including the expiration of any specified time) shall constitute an "Event of Default," unless
waived by the Purchaser in writing:
(a) Payments. The Borrower shall fail to pay, or cause to be paid, when due
(i) any payment of the principal of, interest on or the Purchase Price of the Note or (ii)
any other amount owed by the Borrower to the Purchaser pursuant to this Agreement or
any of the Related Documents.
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4816-9435-3832.2
(b) Covenants. The Borrower shall fail to perform or observe any covenant
set forth in Sections 6.03(a), 6.03(b), 6.03(c), 6.05, 6.08, 6.12, 6.16 or 6.20 or Article VII.
(c) Other Covenants. The Borrower shall fail to perform any term, covenant,
condition or provision of this Agreement or any of the Related Documents (other than as
specified in any other subsection of this Section), which failure continues for thirty days
or more after the Borrower has received written notice thereof.
(d) Representations. Any representation or warranty made or deemed made
by or on behalf of the Borrower in this Agreement, in any Related Document or in any
certificate, financial statement or other statement furnished by or on behalf of the
Borrower pursuant to this Agreement or any of the Related Documents shall prove to
have been inaccurate, misleading or incomplete in any material respect when made or
deemed to have been made.
(e) Other Documents. The occurrence of an Event of Default under any of
the Related Documents.
(f) Default on Parity and Senior Indebtedness. The Borrower shall fail to
pay, or cause to be paid, when due any Indebtedness payable from or secured by the
Revenues which as to priority of payment is on a parity with or senior to the Note; or the
occurrence of any act or omission by the Borrower under any Contract under or pursuant
to which such Indebtedness is incurred or issued which results in any Indebtedness
payable from or secured by the Revenues which as to priority of payment is on a parity
with or senior to the Note becoming immediately due and payable.
(g) Default on Other Material Indebtedness. Except as provided in Section
8.01(f), Default by the Borrower in the payment of any amount when due in respect of
any Material Indebtedness; or default under any Contract under or pursuant to which such
Material Indebtedness is incurred or issued, and continuance of such default beyond the
period of grace, if any, allowed with respect thereto; or the occurrence of any act or
omission by the Borrower under any such Contract which results in such Material
Indebtedness becoming, or being capable of becoming, immediately due and payable (or,
with respect to any Hedge Agreement, which results in Hedge Agreement being
terminated early or being subject to early termination).
(h) Contest of Validity, Invalidity.
(i) The Borrower shall in writing claim, or repudiate its obligations
under, or initiate any legal proceedings to seek an adjudication that, any of the
provisions that provide for the payment of principal of or interest on the Note;
(ii) Any court of competent jurisdiction or other Governmental
Authority with jurisdiction to rule on the validity of this Agreement or the Related
Documents shall find or rule in a final non appealable judgment that any of the
provisions that provide for the payment of principal of or interest on the Note; or
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4816-9435-3832.2
(iii) Except as provided in clauses (i) and (ii) above, any provision of
this Agreement or any of the Related Documents shall cease to be valid and
binding or shall be declared null and void; or the Borrower or any Governmental
Authority shall contest any such provision; or the Borrower or any agent or
trustee on behalf of the Borrower shall deny that it has any further liability under
any provision of this Agreement or any of the other Related Documents; or the
Borrower shall (A) claim that this Agreement or any of the other Related
Documents is not valid or binding on it, (B) repudiate its obligations under this
Agreement or any of the other Related Documents, or (C) initiate any legal
proceedings to seek an adjudication that this Agreement or any of the other
Related Documents or the Borrower's obligation to repay any Material
Indebtedness is not valid or binding on it.
(i) Judgments. Entry or filing of any final, non -appealable judgment or any
similar process in an amount in excess of $250,000 against the Borrower or against any
of its Property and failure by the Borrower to stay the enforcement of such judgment or
other process for a period of 60 days or failure to pay or satisfy the same within 60 days.
0) Event of Insolvency. An Event of Insolvency shall have occurred with
respect to the Borrower.
(k) Validity and Perfection of Liens. Any Lien created by this Agreement or
any of the Related Documents in favor of the Purchaser, at any time and for any reason
(except as expressly permitted to be released by the terms of such governing document)
shall not constitute a valid and perfected Lien or shall fail to have the priority required by
this Agreement and the Related Documents, or the Borrower shall so assert in writing.
(1) Material Adverse Change. The occurrence of a Material Adverse
Change.
(m) Authorization of Default. The adoption of any resolution of the Borrower
to authorize any action or event that would constitute an Event of Default.
Section 8.02. Consequences of an Event of Default. If an Event of Default specified in
Section 8.01 shall occur, then in addition to any other rights or remedies available to the
Purchaser under any of the Related Documents or under Applicable Law, the Purchaser may
exercise any one or more of the following rights and remedies:
(a) by notice to the Borrower, accelerate all of the obligations of the Borrower
under this Agreement whereupon such obligations shall become immediately due and
payable without presentment, demand for payment, protest or notice of nonpayment or
dishonor, or other notice of any kind or character, all of which are hereby expressly
waived, and an action therefor shall immediately accrue; provided that, if any Event of
Default described in Section 8.010) shall occur, all of the obligations of the Borrower
under this Agreement shall automatically mature and be due and payable on the date of
the occurrence of such Event of Default without presentment, demand for payment,
43
4816-9435-3832.2
protest or notice of any kind to the Borrower or any other Person, all of which are hereby
expressly waived;
(b) (i) apply to any court of competent jurisdiction for, and obtain
appointment of, a receiver for the Project, (ii) either personally or by attorney or agent
and without bringing any action or proceeding, or by such a receiver, take whatever
action at law or in equity may appear necessary or desirable to collect the amounts due
and payable under this Agreement or the Related Documents or to enforce performance
or observance of any of the obligations of the Borrower under this Agreement and the
Related Documents, whether for specific performance of any agreement or covenant of
the Borrower or in aid of the execution of any power granted to the Purchaser in this
Agreement or the Related Documents or as otherwise available at law or in equity;
(c) deliver a notice to Borrower that an Event of Default has occurred and is
continuing and directing an acceleration of the Note or take such other remedial action as
is provided for in the Financing Agreement;
(d) cure any Default, Event of Default or event of nonperformance under this
Agreement or the Related Documents; provided, however, that the Purchaser shall have
no obligation to effect such a cure;
(e) exercise, or cause to be exercised, any and all remedies as it may have
under this Agreement or the Related Documents (other than as provided in subsection (b)
above) and as otherwise available at law and at equity;
Section 8.03. Reserved.
Section 8.04. No Waiver; Remedies. No failure on the part of the Purchaser to
exercise, and no delay in exercising, any right, power or privilege under this Agreement shall
operate as a waiver of such right, power or privilege; nor shall any single or partial exercise of
any right, power or privilege under this Agreement preclude any other further exercise of such
right, power or privilege or the exercise of any other right, power or privilege. The rights and
remedies herein provided are cumulative and not exclusive of any rights or remedies provided by
law or which the Purchaser would otherwise have. The rights and remedies of the Purchaser are
for the sole and exclusive benefit, use and protection of the Purchaser, and the Purchaser is
entitled, but shall have no duty or obligation to the Issuer, the Borrower or any other Person or
otherwise, (i) to exercise or to refrain from exercising any right or remedy reserved to the
Purchaser hereunder or under any Related Document, or (ii) to cause any Person to exercise or to
refrain from exercising any right or remedy available to it under any of the Related Documents.
Section 8.05. Injunctive Relief. The Borrower recognizes that in the event an Event of
Default occurs, any remedy of law may prove to be inadequate relief to the Purchaser; therefore,
the Borrower agrees that the Purchaser, if the Purchaser so requests, shall be entitled to
temporary and permanent relief in any such case.
44
4816-9435-3832.2
ARTICLE IX
NATURE OF OBLIGATIONS; INDEMNIFICATION
Section 9.01. Obligations Absolute. The obligations of the Borrower under this
Agreement shall be absolute, unconditional and irrevocable, and shall not be subject to any right
of setoff or counterclaim against the Purchaser or any Owner or any Participant and shall be paid
and performed strictly in accordance with the terms of this Agreement, under all circumstances
whatsoever, including the following circumstances:
(a) any lack of validity or enforceability of any of the Related Documents or
any other agreement or instrument delivered in connection herewith or therewith;
(b) any amendment or waiver of any provision of all or any of the Related
Documents;
(c) the existence of any claim, setoff, defense or other rights which the
Borrower may have at any time against the Issuer, the Purchaser (other than the defense
of payment to the Purchaser in accordance with the terms of this Agreement), any Owner,
any Participant or any other Person, whether in connection with this Agreement, the
Related Documents or any transaction contemplated hereby or thereby or any unrelated
transaction;
(d) any certificate or any other document presented under this Agreement or
the Related Documents proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect whatsoever; or
(e) any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing.
Notwithstanding this Section, the Purchaser acknowledges the Borrower may have the
right to bring a collateral action with respect to one or more of the foregoing circumstances. The
Borrower's payment obligations shall remain in full force and effect pending the final disposition
of any such action.
Section 9.02. Liability of the Purchaser. With respect to the Purchaser, the Borrower
assumes any and all risks with respect to the acts or omissions of the Issuer connection with this
Agreement or any amounts made available by the Purchaser hereunder. Neither the Purchaser
nor any of the officers, directors, employees or agents thereof shall be liable or responsible for
any of the following: (i) the use that may be made of the Note Proceeds or any amounts made
available by the Purchaser hereunder or for any acts or omissions of the Issuer or the Borrower in
connection therewith; (ii) the validity, sufficiency or genuineness of documents, or of any
endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (iii) payment by the Purchaser against presentation of
documents which do not comply with the terms of this Agreement, including failure of any
documents to bear any reference or adequate reference to this Agreement; (iv) the solvency of
any other Person; or (v) any other circumstances whatsoever in making or failing to make
payment under this Agreement or any Related Document, except only that the Borrower shall
45
4816-9435-3832.2
have a claim against the Purchaser, and the Purchaser shall be liable to the Borrower, to the
extent, but only to the extent, of any direct, as opposed to consequential, special, indirect or
punitive damages (the right to receive consequential, special, indirect or punitive damages being
hereby waived by the Borrower), suffered by the Borrower which are determined by a final and
nonappealable judgment of a court of competent jurisdiction to be caused by the Purchaser's
willful misconduct or gross negligence in connection with the administration of this Agreement.
In furtherance and not in limitation of the foregoing, the Purchaser may accept documents that
appear on their face to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary.
Section 9.03. Indemnification.
In addition to any and all rights of reimbursement, indemnification, subrogation or any
other rights pursuant hereto or under law or equity, the Borrower hereby agrees to indemnify and
hold harmless the Purchaser and its officers, directors and agents (each, an "Indemnitee") from
and against any and all claims, damages, losses, liabilities, reasonable costs or expenses
whatsoever (including reasonable attorneys' fees) which may incur or which may be claimed
against an Indemnitee by any Person or entity whatsoever (collectively, the "Liabilities") by
reason of or in connection with (a) the execution and delivery or transfer of, or payment or
failure to pay under, any Related Document; (b) the issuance and sale of the Note; and (c) the use
of the proceeds of the Note; provided that the Borrower shall not be required to indemnify an
Indemnitee for any Liabilities to the extent, but only to the extent, caused by the willful
misconduct or gross negligence of such Indemnitee. Nothing under this Section 9.03 is intended
to limit the Borrower's payment of its obligations hereunder.
ARTICLE X
MISCELLANEOUS
Section 10.01. Right of Setoff.
(a) Upon the occurrence of an Event of Default, the Purchaser and its
Affiliates may, at any time and from time to time, without notice to the Borrower or any
other Person (any such notice being expressly waived), setoff and appropriate and apply,
against and on account of, any obligations and liabilities of the Borrower to the Purchaser
or its Affiliates arising under or connected with this Agreement and the Related
Documents, without regard to whether or not the Purchaser shall have made any demand
therefor, and although such obligations and liabilities may be contingent or unmatured,
any and all deposits (general or special, including, but not limited to, Indebtedness
evidenced by certificates of deposit, whether matured or unmatured, but not including
trust accounts) and any other Indebtedness or other payment obligation at any time held
or owing by the Purchaser or its Affiliates to or for the credit or the account of the
Borrower.
(b) The Purchaser agrees promptly to notify the Borrower after any such
setoff and application referred to in subsection (a) above, provided that the failure to give
such notice shall not affect the validity of such setoff and application. Subject to the
46
4816-9435-3832.2
provisions of subsection (a) above, the rights of the Purchaser under this Section are in
addition to other rights and remedies (including other rights of setoff) which the
Purchaser may have.
Section 10.02. Amendments and Waivers. No amendment or waiver of any provision
of this Agreement or consent to any departure by the Borrower from any such provision shall in
any event be effective unless the same shall be in writing and signed by the Purchaser and the
Borrower. Any such waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given. In the event any agreement contained in this Agreement
should be breached by the Borrower and thereafter waived by the Purchaser, such waiver shall be
limited to the particular breach so waived for the specific period set out in such waiver and such
waiver shall not constitute a waiver of such breach for any other period and shall not waive any
other or similar breach hereunder.
Section 10.03. Counterparts. This Agreement may be signed in any number of
counterpart copies (and by different parties on different counterparts), each of which shall
constitute an original but all such copies shall constitute one and the same instrument.
Section 10.04. Notices. All notices, requests, demands, directions and other
communications (collectively "notices") under the provisions of this Agreement shall be in
writing (including facsimile communication), unless otherwise expressly permitted hereunder,
and shall be sent by first class mail or overnight delivery and shall be deemed received as
follows: (i) if by first class mail, five (5) days after mailing; (ii) if by overnight delivery, on the
next Business Day; (iii) if by telephone, when given to a person who confirms such receipt; and
(iv) if by facsimile, when confirmation of receipt is obtained. All notices shall be sent to the
applicable party at the following address or in accordance with the last unrevoked written
direction from such party to the other parties hereto:
if to the Borrower, addressed to it at:
YMCA of the Greater Twin Cities
651 Nicollet Mall, Suite 500
Minneapolis, MN 55402
Attention: Chief Financial and Administrative Officer
Facsimile: (612) 465-0585
Telephone: (612) 623-1006
or if to the Purchaser, addressed to if at:
PNC Bank, National Association
411 East Wisconsin Avenue, Suite 1400
Milwaukee, WI 53202
Attention: Emily Alwood
Facsimile: (312) 338-8152
Telephone: (414) 270-7951
47
4816-9435-3832.2
The Purchaser may rely on any notice (including telephone communication) purportedly
made by or on behalf of the other, and shall have no duty to verify the identity or authority of the
Person giving such notice, unless such actions or omissions would amount to gross negligence or
intentional misconduct.
Section 10.05. Severability. Any provision of this Agreement which is prohibited,
unenforceable or not authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition, unenforceability or nonauthorization without invalidating the
remaining provisions hereof or affecting the validity, enforceability or legality of such provision
in any other jurisdiction.
Section 10.06. Reserved.
Section 10.07. Governing Law; Consent To Jurisdiction; Waiver Of Jury Trial.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF MINNESOTA
WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PROVISIONS.
(b) TO THE EXTENT PERMITTED BY APPLICABLE LAWS, EACH OF
THE PARTIES HERETO HEREBY WAIVES ITS RIGHT TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT, THE RELATED DOCUMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, INCLUDING CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
OR STATUTORY CLAIMS.
(c) The covenants and waivers made pursuant to this Section 10.07 shall be
irrevocable and unmodifiable, whether in writing or orally, and shall be applicable to any
subsequent amendments, renewals, supplements or modifications of this Agreement. In
the event of litigation, this Agreement may be filed as a written consent to a trial by the
court.
Section 10.08. Successors and Assigns.
(a) Successors and Assigns Generally. This Agreement is a continuing
obligation and shall be binding upon the Borrower, its successors, transferees and assigns
and shall inure to the benefit of the Owner and its permitted successors, transferees and
assigns. The Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the Purchaser. Each Owner
may, in its sole discretion and in accordance with applicable Law, from time to time
assign, sell or transfer in whole or in part, this Agreement, its interest in the Note and the
Related Documents in accordance with the provisions of paragraph (b) or (c) of this
Section. Each Owner may at any time and from time to time enter into participation
agreements in accordance with the provisions of paragraph (d) of this Section. Each
Owner may at any time pledge or assign a security interest subject to the restrictions of
paragraph (e) of this Section. PNC Bank, National Association shall be the Purchaser
hereunder until such time as the Majority Noteholder designates an alternate Person to
48
4816-9435-3832.2
serve as the Purchaser hereunder by delivery of written notice to the Borrower and such
Person accepts and agrees to act as the Purchaser hereunder and under the Related
Documents. The Majority Noteholder may so designate an alternate Person to act as the
Purchaser from time to time. Upon acceptance and notification thereof to the Borrower,
the successor to the Purchaser for such purposes shall thereupon succeed to and become
vested with all of the rights, powers, privileges and responsibilities of the Purchaser, and
PNC Bank, National Association or any other Person being replaced as the Purchaser
shall be discharged from its duties and obligations as the Purchaser hereunder.
(b) Sales and Transfers by Owner to a Purchaser Transferee. Without
limitation of the foregoing generality, a Owner may at any time sell or otherwise transfer
to one or more transferees all or a portion of the Note to a Person that is (i) an Affiliate of
the Purchaser or (ii) a trust or other custodial arrangement established by the Purchaser or
an Affiliate of the Purchaser (each, a "Purchaser Transferee"). From and after the date of
such sale or transfer, PNC Bank, National Association (and its successors) shall continue
to have all of the rights of the Purchaser hereunder and under the other Related
Documents as if no such transfer or sale had occurred; provided, however, that (A) no
such sale or transfer referred to in clause (b)(i) or (b)(ii) hereof shall in any way affect the
obligations of the Purchaser hereunder, (B) the Borrower shall be required to deal only
with the Purchaser with respect to any matters under this Agreement and (C) in the case
of a sale or transfer referred to in clause (b)(i) or (b)(ii) hereof, only the Purchaser shall
be entitled to enforce the provisions of this Agreement against the Borrower.
(c) Sales and Transfers by Noteholder to a Non Purchaser Transferee.
Without limitation of the foregoing generality, a Owner may at any time sell or otherwise
transfer all or any portion of the Note to one or more transferees that the Purchaser
reasonably believes is qualified to purchase or hold the Note which are not Purchaser
Transferees (each a "Non Purchaser Transferee") if (A) written notice of such sale or
transfer, including that such sale or transfer is to a Non Purchaser Transferee, together
with addresses and related information with respect to the Non Purchaser Transferee,
shall have been given to the Borrower and the Purchaser (if different than the Noteholder)
by such selling Noteholder and Non -Purchaser Transferee, and (B) the Non Purchaser
Transferee shall have delivered to the Borrower and the selling Noteholder an investment
letter in substantially the form attached as Exhibit U to the Financing Agreement (the
"Purchaser Letter").
From and after the date the Borrower and the selling Noteholder have received
written notice and an executed Purchaser Letter, (A) the Non -Purchaser Transferee
thereunder shall be a party hereto and shall have the rights and obligations of a
Noteholder hereunder and under the other Related Documents, and this Agreement shall
be deemed to be amended to the extent, but only to the extent, necessary to effect the
addition of the Non -Purchaser Transferee, and any reference to the assigning Noteholder
hereunder and under the other Related Documents shall thereafter refer to such
transferring Noteholder and to the Non -Purchaser Transferee to the extent of their
respective interests, and (B) if the transferring Noteholder no longer owns any portion of
the Note, then it shall relinquish its rights and be released from its obligations hereunder
4816-9435-3832.2
and under the Related Documents; provided, however, that (1) the Borrower shall be
required to deal only with the Purchaser (and no other Purchaser Transferee or
Non -Purchaser Transferee) with respect to any matters under this Agreement; (2) only
the Purchaser shall be entitled to enforce the provisions of this Agreement against the
Borrower; and (3) in the event the Purchaser, any Purchaser Transferee or any
combination thereof ceases to be the owner of the Note, no Non -Purchaser Transferee
shall constitute a Noteholder hereunder or have the benefits of the terms and provisions
of any of this Agreement except to the extent necessary to give meaning and effect to the
provisions of the Financing Agreement.
(d) Participations. Each Noteholder shall have the right to grant
participations in all or a portion of such Noteholder's interest in the Note, this Agreement
and the other Related Documents to one or more other banking institutions; provided,
however, that (i) no such participation by any such Participant shall in any way affect the
obligations of the Purchaser hereunder and (ii) the Borrower shall be required to deal
only with the Purchaser, with respect to any matters under this Agreement, the Note and
the other Related Documents and no such Participant shall be entitled to enforce any
provision hereunder against the Borrower. The Borrower agrees that each Participant
shall be entitled to the benefits of Article III to the same extent as if it were the
Noteholder and had acquired its interest by assignment pursuant to paragraph (c) of this
Section; provided that such Participant shall not be entitled to receive any greater
payment under Article III, with respect to any participation, than the Noteholder would
have been entitled to receive, except to the extent such entitlement to receive a greater
payment results from a Change in Law that occurs after the Participant acquired the
applicable participation.
(e) Certain Pledges. In addition to the rights of the Purchaser set forth above,
the Purchaser may at any time pledge or grant a security interest in all or any portion of
its rights or interests under the Note, this Agreement or the Related Documents to secure
obligations of the Purchaser or an Affiliate of the Purchaser, including any pledge or
assignment to secure obligations to a Federal Reserve Bank or to any state or local
governmental entity or with respect to public deposits; provided that no such pledge or
assignment shall release the Purchaser from any of its obligations hereunder or substitute
any such pledgee or assignee for the Purchaser as a party hereto.
Section 10.09. Complete and Controlling Agreement. This Agreement and the
Related Documents completely set forth the agreements between the Purchaser and the Borrower
and fully supersede all prior agreements, both written and oral, between the Purchaser and the
Borrower relating to all matters set forth herein and in the Related Documents.
Section 10.10. Patriot Act. The Purchaser hereby notifies the Borrower that pursuant to
the requirements of the Patriot Act the Purchaser is required to obtain, verify and record
information that identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow the Purchaser to identify the Borrower in
accordance with the Patriot Act. The Borrower hereby agrees that it shall promptly provide such
information upon request by the Purchaser.
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4816-9435-3832.2
Section 10.11. No Advisory or Fiduciary Responsibility. In connection with all
aspects of the transactions contemplated by this Agreement and the Related Documents
(including in connection with any amendment, waiver or other modification of this Agreement or
of any Related Document), the Borrower acknowledges and agrees that: (a)(i) any arranging,
structuring and other services regarding this Agreement and the Related Documents provided by
the Purchaser or any Affiliate of the Purchaser are arm's length commercial transactions between
the Borrower on the one hand, and the Purchaser and any Affiliate of the Purchaser on the other
hand, (ii) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the
extent it has deemed appropriate, and (iii) the Borrower is capable of evaluating, and understands
and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement
and the Related Documents; (b)(i) the Purchaser and each Affiliate of the Purchaser is and has
been acting solely as a principal and has not been, is not, and will not be acting as an advisor,
agent or fiduciary for the Borrower or any other Person and (ii) neither the Purchaser nor any
Affiliate of the Purchaser has any obligation to the Borrower with respect to the transactions
contemplated by this Agreement and the Related Documents, except those obligations expressly
set forth herein; and (c) the Purchaser and each Affiliate of the Purchaser may be engaged in a
broad range of transactions that involve interests that differ from those of the Borrower, and
neither the Purchaser nor any Affiliate of the Purchaser has any obligation to disclose any of
such interests to the Borrower. To the fullest extent permitted by Applicable Laws, the Borrower
hereby waives and releases any claims that it may have against the Purchaser and each Affiliate
of the Purchaser with respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of the transactions contemplated by this Agreement and the Related
Documents.
Section 10.12. Payment Set Aside. To the extent that the Purchaser or any Owner
receives any payment from or on behalf of the Borrower, or the Purchaser exercises its right of
setoff, which payment or setoff amount or any part thereof is subsequently invalidated, declared
to constitute a fraudulent conveyance or preferential transfer, set aside, or required to be repaid
to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common
law or equitable cause (collectively, "Set Aside"); then, to the extent of any such Set Aside, the
obligations or part thereof intended to be satisfied shall be revived and continue in full force and
effect, as if such payment or setoff amount had not been received by the Purchaser or such
Owner.
Section 10.13. Contractual Interpretation. The parties acknowledge that they have
read and fully understand the terms of this Agreement, have consulted with such attorneys,
accountants, advisors, or other professionals as they have deemed appropriate prior to executing
this Agreement with adequate opportunity and time for review thereof, and are fully aware of its
contents and of its legal effect. Accordingly, neither this Agreement nor any ambiguity herein
shall be construed against any party on the grounds that such party drafted this Agreement and
instead, this Agreement shall be interpreted as though drafted equally by all parties.
Section 10.14. Electronic Signatures. The parties agree that the electronic signature of
a party to this Agreement shall be as valid as an original signature of such party and shall be
effective to bind such party to this Agreement. The parties agree that any electronically signed
document (including this Agreement) shall be deemed (i) to be "written" or "in writing," (ii) to
have been signed and (iii) to constitute a record established and maintained in the ordinary
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4816-9435-3832.2
course of business and an original written record when printed from electronic files. Such paper
copies or "printouts", if introduced as evidence in any judicial, arbitral, mediation or
administrative proceeding, will be admissible as between the parties to the same extent and under
the same conditions as other original business records created and maintained in documentary
form. Neither party shall contest the admissibility of true and accurate copies of electronically
signed documents on the basis of the best evidence rule or as not satisfying the business records
exception to the hearsay rule. For purposes hereof, "electronic signature" means a manually
signed original signature that is then transmitted by electronic means; "transmitted by electronic
means" means sent in the form of a facsimile or sent via the internet as a "pdf' (portable
document format) or other replicating image attached to an e mail message; and, "electronically
signed document" means a document transmitted by electronic means and containing, or to
which there is affixed, an electronic signature.
ARTICLE XI
APPLICATION OF NOTE PROCEEDS
Section 11.01. Application of Note Proceeds. The Issuer will loan the Note Proceeds
to the Borrower as provided in the Financing Agreement to be used by the Borrower to pay the
Costs of the Project.
52
4816-9435-3832.2
IN WITNESS WHEREOF, the parties hereto have caused this Continuing Covenant
Agreement to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
YOUNG MEN'S CHRISTIAN ASSOCIATION
OF THE GREATER TWIN CITIES
By
Name: Glen Gunderson
Title: President and Chief Executive Officer
By
Name: Karen Larson
Title: Chief Financial and Administrative
Officer
[Signatures continued on following page]
S-1
4816-9435-3832.2
[Signature page to Continuing Covenant Agreement]
PNC BANK, NATIONAL ASSOCIATION
By —
Name
Title
S-2
4816-9435-3832.2
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
The undersigned, a principal financial officer of the Young Men's Christian Association
of the Greater Twin Cities (the `Borrower"), hereby certifies as follows to PNC Bank, National
Association (the "Purchaser"), with reference to that certain Continuing Covenant Agreement
dated as of November 1, 2019 (the "Agreement"), between the Borrower and the Purchaser (any
capitalized terms used herein and not defined shall have its respective meaning as set forth in the
Agreement):
1. The undersigned has made a review of all activities of the Borrower during the
preceding fiscal year of the Borrower ended for the purpose of determining whether
or not the Borrower has complied with all of the terms, provisions and conditions of the
Agreement and the Related Documents.
2. [Borrower to select one]:
[To the best of the undersigned's knowledge, the Borrower has kept, observed, performed
and fulfilled each and every covenant, provision and condition in the Agreement (including those
financial covenants set forth in Section 6.20 of the Agreement as calculated below) and in the
Related Documents on its part to be performed and no Event of Default or Default has occurred.]
Is) 7
[An Event of Default or Default has occurred under [Section of the Agreement]. (If
selected, the Borrower must specify the specific event or condition, the nature and status thereof
and any remedial steps taken or proposed to correct such event or condition.)]
Calculation of Financial Covenants:
[INCLUDE CALCULATION FOR EACH REQUIRED FINANCIAL COVENANT -
FOR EXAMPLE:
(a) Debt Service Coverage Ratio.
Calculation:
Sum of.
(a) Excess of operating support and revenue over operating
expenses
(b) Plus interest expense
(c) Plus amortization expense
(d) Plus depreciation expense
Total
4816-9435-3832.2
Divided by Maximum Annual Debt Service
Debt Service Coverage Ratio: to 1.00
Covenant Requirement: 1.25 to 1.00
Compliance? (circle one): YES NO
(b) Leverage Ratio.
Calculation:
All liabilities of the Borrower as of the date of calculation
as determined in accordance with GAAP
Divided by:
The sum of net assets of the Borrower classified
as either unrestricted or temporarily restricted
Total
Leverage Ratio: to 1.00
Covenant Requirement: 0.80 to 1.00
Compliance? (circle one): YES NO
the sum of (i) "cash and cash equivalents," plus (ii) "investments," less (iii) an amount
equal to the permanently restricted portion of the Borrower's endowment funds
(c) Days Cash on Hand.
Calculation:
Sum of:
(a) Cash and cash equivalents
(b) Plus investments
(c) Less an amount equal to the permanently restricted
portion of the Borrower's endowment funds
Total
Divided by:
Difference of -
4816 -9435-3832.2
(a) Total operating expenses
(b) Less depreciation and amortization
Total
Divided by
Total
Days Cash on Hand:
Covenant Requirement:
Compliance? (circle one): YES NO
365
days
90 days
All amounts and calculations set forth in this Certificate are accurate and complete in all
respects and are made in accordance with the Agreement.
[Remainder of Page Intentionally Left Blank]
B-3
4816-9435-3832.2
IN WITNESS WHEREOF, the Borrower has executed and delivered this Certificate as of
the day of
YOUNG MEN'S CHRISTIAN ASSOCIATION
OF THE GREATER TWIN CITIES
By
Name
Title
4816-9435-3832.2
A CITY OFT.,sk"
..
1685 CROSSTOWN BOULEVARD N.W.. ANDOVER, MINNESOTA 55304 • (763) 755-5100
FAX (763) 755-8923 gWWW.ANDOVERMN.GOV
TO:
CC:
1014]5-1
Mayor and Council Members
Jim Dickinson, City Admini
David D. Berkowitz, Director
Engineer
SUBJECT: Hold Public Hearing/Adopt Assessment Roll/19-2/2019 Street Reconstruction
— Engineering
DATE: November 6, 2019
INTRODUCTION
The City Council is requested to hold a public hearing and approve the resolution adopting the
assessment roll for Project 19-2, 2019 Street Reconstruction.
DISCUSSION
During the summer of 2019 the streets in the neighborhood east of Crooked Lake, south of
Bunker Lake Boulevard, and west of Crooked Lake Boulevard were reconstructed. In
accordance with the City's Roadway Reconstruction Assessment Policy, twenty-five percent
(25%) of the total project costs are being assessed to the benefiting properties.
Two separate assessment amounts were determined based upon actual project costs. The first
rate is for properties on 135th Circle, which had existing concrete curb and gutter and no storm
drainage improvements made with this project. The second rate is for the remainder of the
project area, which added concrete curb and gutter and storm drainage improvements. The
following table depicts the costs, funding sources and assessment rate associated with the
project.
Actual Costs
Nei hborhood
135th Circle
Project Totals
Construction Costs
$1,211,008.53
$48,421.30
$1,259,429.83
Total Project Costs
$1,488,854.04
$59,530.75
$1,548,384.79
Storm Water Utility Funding
$50,000.00
$50,000.00
Total City Costs Road & Bridge Fund
$1,079,140.53
$44,648.06
$1,123,788.59
Total Assessable Costs
$359,713.51
$14,882.69
$374,596.20
Assessable Units **
80
5
Feasibility Assessment / Unit
$4,540.00
$3,040.00
Actual Assessment / Unit
$4,496.42
$2,976.54
** Includes 4 total (1 existing & 3 potential lots) for 13624 Gladiola Street NW
An example assessment for both assessment rates are attached for your information. The
assessment roll is available in the City Engineer's office for review.
Mayor and Council Members
November 6, 2019
Page 2 of 2
Attached are the following:
• Resolution adopting the assessment roll
• Example notice and letter sent to property owners
• Location map
• Assessment worksheet
• Example assessment roll
BUDGETIMPACT
This project is funded through a combination of City funds and special assessments. Twenty -
Five percent (25%) of the total project costs is being assessed to the benefiting properties as
identified in the City's Roadway Reconstruction Assessment Policy. As stormwater runoff from
the project drains directly into Crooked Lake, $50,000 of Storm Water Utility funds were
identified to improve drainage issues and improve water quality runoff within the area. The
remaining project costs are being funded through the City's Road and Bridge Fund. Based upon
current market conditions, the finance department is recommending these assessments be
extended over an 8 -year period at a 4.5% interest rate.
ACTION REQUIRED
The City Council is requested to hold a public hearing and approve the resolution adopting the
assessment roll for Project 18-38, University Avenue NW Reconstruction.
Respectfully submitted,
r d ri-
David D. Berkowitz
Attachments: Resolution �er & Notices Sent to Property Owners, Location Map, Assessment
Worksheet & Example Assessment Roll
CITY OF ANDOVER
COUNTY OF ANOKA
STATE OF MINNESOTA
RES. NO.
MOTION by Councilmember
to adopt the following:
A RESOLUTION ADOPTING THE ASSESSMENT ROLL FOR THE IMPROVEMENT OF
PROJECT NO. 19-2,2019 STREET RECONSTRUCTION,
WHEREAS, pursuant to proper notice duly given as required by law, the City
Council has met and heard and passed upon all objections to the proposed assessment
for the improvements.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ANDOVER,
MINNESOTA:
1. Such proposed assessment, a copy of which is attached hereto and made part hereof,
is hereby accepted and shall constitute the special assessment against the lands
named therein, and each tract of land therein included is hereby found to be benefited
by the proposed improvement in the amount equal to or greater than the assessment
levied against it.
2. Such assessment shall be payable in equal annual installments, extending over a
period of 8 years, the first of the installments to be payable on or before the first
Monday in January, 2020 and shall bear interest at a rate of 4_5 percent per annum
from the date of the adoption of this assessment resolution.
3. The owners of any property so assessed may, at any time prior to certification of the
assessment to the County Auditor, pay the whole of the assessment on such property
with interest accrued to the date of payment to the City Treasurer.
MOTION seconded by Councilmember
and adopted by the
City Council at a regular meeting this 6th day of November , 2019, with
Coun
voting in favor of the resolution, and Councilmembers
against, whereupon said resolution was declared passed.
CITY OF ANDOVER
ATTEST:
Julie Trude - Mayor
Michelle Hartner — Deputy City Clerk
voting
C I -9 ND T YOO F
VE
1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755-5100
FAX (763) 755-8923 • WWW.ANDOVERMN.GOV
CITY OF ANDOVER
COUNTY OF ANOKA
STATE OF MINNESOTA
PUBLIC HEARING
FOR
PROJECT NO. 19-2
NOTICE IS HEREBY GIVEN that the City Council of the City of Andover, Anoka County;
Minnesota will meet at the Andover City Hall, 1685 Crosstown Boulevard NW in the City
of Andover, on Wednesday , November 6 , _2019 at 7:00 PM to pass upon
the proposed assessment for street reconstruction in;the following described areas:
2019 Street Reconstruction
Neighborhood East of Crooked Lake, South of Bunker Lake Boulevard NW
and West of Crooked Lake Boulevard NW
The proposed assessment roll is on file for public inspection at the City Clerk's Office.
The total amount of the proposed assessment per lot ranges from $2,976.54 (135th
Circle NW) and $4,496.42 (Neighborhood) . Written or oral objections will be considered
at the meeting. No appeal may be taken as to the amount unless a signed, written
objection is filed with the Clerk prior to the hearing or presented to the presiding officer at
the hearing. The Council may upon such notice consider any objection to the amount of
a proposed individual assessment at an adjourned meeting upon such further notice to
the affected property owners as it deems advisable.
An owner may appeal an assessment to District Court pursuant to Minnesota Statutes
Section 429.081 by serving notice of the appeal upon the Mayor or Clerk of the City
within 30 days after the adoption of the assessment and filing such notice with the
District Court within ten days after service upon the Mayor or Clerk.
BY ORDER OF THE CITY COUNCIL
MicHelle Hartner - Deputy City Clerk
Publication Date: October 11, 2019 (Anoka Union)
1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755-5100
FAX (763) 755-8923 • WWW.ANDOVERMN.GOV
October 2, 2019
Re: Project No. 19-2, 2019 Street Reconstruction/Neighborhood East of Crooked
Lake, South of Bunker Lake Boulevard NW and West of Crooked Lake Boulevard
NW
Dear Property Owner:.
Please find enclosed the public hearing notice for the proposed assessment for your
street reconstruction. The public hearing is scheduled for Wednesday, November 6,
2019 at 7:00 p.m. at the Andover City Hall.
The estimated assessment per lot was $4,540.00 and the final assessment amount will
be $4,496.42. Once the public hearing is held and the assessments are approved by the
City Council a subsequent letter will be mailed explaining the payment process.
If you have any questions, feel free to contact me at (763) 767-5133 or Jason Law at
(763) 767-5130.
Sincerely,
0. c
David D. Berkowitz, P.E.
Director of Public Works/City Engineer
DDB:rja
Encl.
1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755-5100
FAX (763) 755-8923 • WWW.ANDOVERMN.GOV
October 2, 2019
Re: Project No. 19-2, 2019 Street Reconstruction/Neighborhood East of Crooked
Lake, South of Bunker Lake Boulevard NW and West of Crooked Lake Boulevard
NW
Dear Property Owner:
Please find enclosed the public hearing notice for the proposed assessment for your
street reconstruction. The public hearing is scheduled for Wednesday, November 6,
2019 at 7:00 p.m. at the Andover City Hall.
The estimated assessment per lot was $3,040.00 and the final assessment amount will
be $2,976.54. Once the public hearing is held and the assessments are approved by the
City Council a subsequent letter will be mailed explaining the payment process.
If you have any questions, feel free to contact me at (763) 767-5133 or Jason Law at
(763) 767-5130.
Sincerely,
David D. Berkowitz, P.E.
Director of Public Works/City Engineer
DDB:rja
Encl.
i
C I T Y O F
(AND0VER?'7P-Lk
1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755-5100
FAX (763) 755-8923 • WWW.ANDOVERMN.GOV
October 2, 2019
333224310042
Arthur & Gladys Sloth
29663 28811 Ln.
Aitkin, MN 56431
Re: Project No. 19-2, 2019 Street Reconstruction/Neighborhood East of Crooked
Lake, South of Bunker Lake Boulevard NW and West of Crooked Lake Boulevard
NW
Dear Property Owner:
Please find enclosed the public hearing notice for the proposed assessment for your
street reconstruction. The public hearing is scheduled for Wednesday, November 6,
2019 at 7:00 p.m. at the Andover City Hall.
The estimated assessment was $18,160.00 (4 potential units at $4,540.00 each) and the
final assessment amount will be $17,985.68 (4 potential units at $4,486.42 each). Once
the public hearing is held and the assessments are approved by the City Council a
subsequent letter will be mailed explaining the payment process.
If you have any questions, feel free to contact me at (763) 767-5133 or Jason Law at
(763)767-5130.
Sincerely,
David D. Berkowitz, P.E.
Director of Public Works/City Engineer
DDB:rja
Encl.
' JbWR Capital Improvement Plan (2019)
Project Name: ANNUAL STREET RECONSTRUCTION
AREA EAST OF CROOKED LAKE
L
E G E N D
10
Project Location
Lots/Parcels
[�
Park
Water
Right of Way
City Limits
M.
0 250 500 750
Feet
FINAL ANDOVER ASSESSMENT WORKSHEET
Project Name: 2019 Street Reconstruction
Project No.: 19-02
Feasibility Report Date: 12/18/18 Const. Amount: $1,254,040.00
Contract Award Date: 4/16119 Amount: $1,318,937.85
Actual Construction Cost Amount: $1,259,429.83
Final Expenses
Engineering (Includes Design, Surveying, Inspection, etc.):
$
186,408.88
Consulting Costs
$
2,795.00
Aerial Mapping (1%0 of street)
$
9,072.57
Drainage Plan (0.3% of street/storm)
$
3,778.29
Administration (3%)
$
37,782.89
Assessing (1%)
$
12,594.30
Bonding (0.5%)
$
-
Recording Fees / Legal & Easement
$
92.00
Advertising
$
669.00
Permit and Review Fees
$
1,140.00
Street Signs (Materials and Labor)
$
2,403.09
Material Testing
$
5,404.81
Easement Acquisition
$
3,985.00
Construction Interest
$
12,427.13
City Costs
$
10,402.00
Total Final Expenses
$
288,954.96
Expenses Multiplier 22.943316%
Total Final Project Cost Amount: $ 1,548,384.79
Construction Costs - Streets
$
1,211,008.53
Indirect Costs
$
277,845.51
Total Project Costs
$
1,488,854.04
i Water Utility Funding
$
(50,000.00)
Amount for Assessment Calculations
$
1,438,854.04
Assessable Costs (25%)
$
359,713.51
City Costs (75%) plus deductable costs
$
1,079,140.53
Feasibility Assessment Rate Per Unit $ 362,900.00 180* Units= $ 4,540.00
Actual Assessment Rate Per Unit $ 359,713.51 180* Units= $ 4,496.42
* Includes 3 potential units for 13624 Gladiola Street NW
Final Indirect Costs $ 11,109.45
Final Total Project Costs $ 59,530.75
Final Assessable Costs (25%) $ 14,882.69
Final City Costs (75%) plus deductable costs $ 44,648.06
Feasibility Assessment Rate Per Unit $ 15,200.00 / 5 Units= $ 3,040.00
Actual Assessment Rate Per Unit $ 14,882.69 15 Units= $ 2,976.54
Note: Totals are rounded to the nearest $10 for simplicity. Actual amounts will be used for the final assessments calculations.
Exhibit 5
2019 Street Reconstruction Final Assessment Roll - City of Andover
(City Project 19-02)
PED4
Owner
Property Address
Owner Address
City
State
Zip
Code
Units
Estimated
Assessment
Actual
Assessment
333224310009
MULVIHILL JACOB & AMY
2940135TH LN
2940135TH LN NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310010
BUYCO INC
13526 CROOKED LAKE BLVD
13526 CROOKED LAKE BLVD NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310011
DENTZ PAUL & MICHELLE
2830 135TH LN
1667 PELTIER LAKE DR
CENTERVILLE
MN
55038
1
$
4,540.00
$ 4,496.42
333224310012
FJELD DANIEL
2844135TH LN
2844135TH LN NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310013
HOLTZ DARYL R & LAURIE M
2858135TH LN
2858135TH LN NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310014
MCLAUGHLIN LESTER L & ROSE
2868135TH LN
2868135TH LN NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310015
BAILEY JEREMY&ALICIA
13526 GLADIOLA ST
13526 GLADIOLA ST NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310018
HAWKINSON KEITH G & SANDRA
13523 GLADIOLA ST
13523 GLADIOLA ST NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310020
MCKAY GERALD J & KAREN M
13525 GLADIOLA ST
13525 GLADIOLA ST NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310022
SPARER RANDALL V & LEOMA J
13522 GLADIOLA ST
13522 GLADIOLA ST NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310023
FEGLEY MICHAEL & RENNER JAIME
13524 GLADIOLA ST
13524 GLADIOLA ST NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310024
HUNTER DEAN W & JULIANN K
2856 BUNKER LAKE BLVD
7501 COUNTY RD 110 W
MINNETRISTA
AN
55364
1
$
4,540.00
$ 4,496.42
333224310025
TJOSVOLD MARY M & MARGARET W
13635 GLADIOLA ST
1555 118TH LANE NW
COON RAPIDS
MN
55448
1
$
4,540.00
$ 4,496.42
333224310027
BENJAMIN TRUSTEE GLORIA& BENJAMIN TRUSTEE WAYNE
13625 GLADIOLA ST
13625 GLADIOLA ST NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310028
WARD ADAM
13611 GLADIOLA ST
13611 GLADIOLA ST NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310029
SANBORN MICHAEL R
13556 EIDELWEISS ST
13556 EIDELWEISS ST NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310030
AGBONMA DESTINY
13565 GLADIOLA ST
13565 GLADIOLA ST NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310031
EVANS PAUL V & B L
13553 GLADIOLA ST
13553 GLADIOLA ST NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310032
SECORD KYLE & KASSANDRA
2859135TH LN
2859135TH LN NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310033
JENSEN ROBERT E & S A
2849135TH LN
2849135TH LN NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310036
HOFF GREGORY & KARNEY SUZANNE
13563 EIDELWEISS ST
13563 EIDELWEISS ST NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310038
IVERSON ROBERT J & CAROLYN J
13551 EIDELWEISS ST
13551 EIDELWEISS ST NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310040
GRUBER GLORIA
13540 CROOKED LAKE BLVD
13540 CROOKED LAKE BLVD NW
ANDOVER I
MN
55304
1
$
4,540.00
$ 4,496.42
333224310041
SMITH ANDREW & EMILY
2837135TH LN
2837135TH LN NW
ANDOVER
MN
55304 1
1
$
4,540.00
$ 4,496.42
333224310042
SLOTH ARTHUR & GLADYS
13624 GLADIOLA ST
29663 288TH LN
AITKIN
AN
56431
4 (1)
$
18,160.00
$ 17,985.68
333224310043
GISH ELLEN
13608 GLADIOLA ST
13608 GLADIOLA ST NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310044
HOSKINS SHANE & KELLI
13556 GLADIOLA ST
13558 GLADIOLA ST NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310045
TEIGEN GARY S & WENDY K
13554 GLADIOLA ST
13554 GLADIOLA ST NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224310046
ROLU GAYLE L
2815135TH CIR
2815135TH CIR NW
ANDOVER
MN
55304
1
$
3,040.00
$ 2,976.54
333224310047
BIERNAT BRANDON
2825 135TH CIR
2825135TH CIR NW
ANDOVER
MN
55304
1
$
3,040.00
$ 2,976.54
333224310051
ZOPFI KRISTINA
2833135TH CIR
2833135TH CIR NW
ANDOVER
MN
55304
1
$
3,040.00
$ 2,976.54
333224310054
FOLEY TIMOTHY P&PAULA RA
13520 GLADIOLA ST
13520 GLADIOLA ST NW
ANDOVER
MN
55304
1
$
4,540.00
1 $ 4,496.42
333224340003
FUNKTHOMASG&CLTRUSTEES
13504 GLADIOLA ST
13504 GLADIOLA ST NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224340006
GRISWOLD TRUSTEE JUDITH& GRISWOLD TRUSTEE WILLIAM
13428 GLADIOLA ST
1500 QUEBEC ST
CHAMPLIN I
MN
55316
1
$
4,540.00
$ 4,496.42
333224340007
CULLEN RICHARD& DARLA
13450 GLADIOLA ST
13450 GLADIOLA ST NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224340008
LAWRENCE BRADLEY & BRIGITTE
13458GLADIOLAST
13458GLADIOLASTNW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224340009
DURETTE STEPHEN & PETERSON DURETTE DEBRA
13440 GLADIOLA ST
13440 GLADIOLA ST NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224340011
WILLAMS NANCY
2811135TH AVE
2811135TH AVE NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224340012
LENTNER CURTIS & JACQUELYN
2823135TH AVE
2823135TH AVE NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224340013
BAIRNSON GEORGE
2835135TH AVE
2835135TH AVE NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224340014
IHEIL SANDRA
12847135TH AVE
12847135TH AVE NW
ANDOVER
MN
55304
1
1$
4,540.00
1 $ 4,496.42
333224340015
DZIUBAN ARNOLDR
12859135TH AVE
13306 GLADIOLA ST NW
ANDOVER
MN
55304
1
$
4,540.00
$ 4,496.42
333224340016
NASLUND GARY &JOYCE
2871135TH AVE
2871135TH AVE NW
ANDOVER
MN
55304
1
1 $
4,540.00
1 $ 4,496.42
PROPOSED LIST OF ASSESSED PROPERTIES
EXHIBIT 6
PID#
Owner
Property Address
Owner Address
City
State
Zip
Code
Units
Estimated
Assessment
Actual
Assessment
333224340017
OVERBY STEPHEN H & LISA M
13509 GLADIOLA ST
13509 GLADIOLA ST NW
ANDOVER
MN
55304
1
$ 4,540.00
$ 4,496.42
333224340019
GAMACHE BETH & MICHAEL
2815 134TH AVE
2815 134TH AVE NW
ANDOVER
MN
55304
1
$ 4,540.00
$ 4,496.42
333224340020
KOLINSKI KRISTOPHER
2829134TH AVE
2829134TH AVE NW
ANDOVER
MN
55304
1
$ 4,540.00
$ 4,496.42
333224340021
LARSON HAROLD J & LINDA L
2839134TH AVE
2839134TH AVE NW
ANDOVER
MN
55304
1
$ 4,540.00
$ 4,496.42
333224340022
KUIKEN AMBER &TURNER TREVOR
2849134TH AVE
1186150TH LN NW
ANDOVER
MN
55304
1
$ 4,540.00
$ 4,496.42
333224340023
HUNTINGTON JAMES
13365 GLADIOLA ST
13365 GLADIOLA ST NW
ANDOVER
AN
55304
1
$ 4,540.00
$ 4,496.42
333224340024
MILTZ MELANIER
13355 GLADIOLA ST
13355 GLADIOLA ST NW
ANDOVER
AN
55304
1
$ 4,540.00
$ 4,496.42
333224340025
GRANDELL JONATHAN & KATIE
13364 GLADIOLA ST
13364 GLADIOLA ST NW
ANDOVER
MN
55304
1
$ 4,540.00
$ 4,496.42
333224340026
GONZALEZ CLARA L S & ERNESTO G
13354 GLADIOLA ST
13354 GLADIOLA ST NW
ANDOVER
MN
55304
1
$ 4,540.00
$ 4,496.42
333224340027
NELSON SEAN T&CYNTHIA C
13344 GLADIOLA ST
13344 GLADIOLA ST NW
ANDOVER
MN
55304
1
$ 4,540.00
$ 4,496.42
333224340028
SCHILLINGER TERRY L&LAVELLA
13336 GLADIOLA ST
13336 GLADIOLA ST NW
ANDOVER
MN
55304
1
$ 4,540.00
$ 4,496.42
333224340029
ROSELAND TRUSTEE CONNIE& ROSELAND TRUSTEE ROY
13326 GLADIOLA ST
13326 GLADIOLA ST NW
ANDOVER
AN
55304
1
$ 4,540.00
$ 4,496.42
333224340030
SCOTT LORI
13316 GLADIOLA ST
13316 GLADIOLA ST NW
ANDOVER
MN
55304
1
$ 4,540.00
$ 4,496.42
333224340031
DZIUBAN ARNOLDR
13306 GLADIOLA ST
13306 GLADIOLA ST NW
ANDOVER
MN
55304
1
$ 4,540.00
$ 4,496.42
333224340032
GALAGUZ MAX
13338 EIDELWEISS ST
13338 EIDELWEISS ST NW
ANDOVER
MN
55304
1
$ 4,540.00
1 $ 4,496.42
333224340033
JUNGWIRTH CAROLE
13328 EIDELWEISS ST
13328 EIDELWEISS ST NW
ANDOVER
AN
55304
1
$ 4,540.00
$ 4,496.42
333224340034
SCHWALBE BRADLEY P
13318 EIDELWEISS ST
13318 EIDELWEISS ST NW
ANDOVER
AN
55304
1 1
$ 4,540.00
$ 4,496.42
333224340036
BLASER LEONARD
13307 GLADIOLA ST
13307 GLADIOLA ST NW
ANDOVER
AN
55304
1
$ 4,540.00
$ 4,496.42
333224340037
WILMINGTON SAVINGS FUND SOCIETY
13317 GLADIOLA ST
FSB TRUSTEE 600 DELEWARE A
WILMINGTON
DE
19801
1
$ 4,540.00
$ 4,496.42
333224340038
TAYLOR BENJAMIN &KRISTEN
13327 GLADIOLA ST
13327 GLADIOLA ST NW
ANDOVER
MN
55304
1
$ 4,540.00
$ 4,496.42
333224340039
ROSTBERG JACOB & KRISTEN
13337 GLADIOLA ST
13337 GLADIOLA ST NW
ANDOVER
MN
55304
1
$ 4,540.00
$ 4,496.42
333224340040
KUNZA JOHN J&DONNA M
2814134TH AVE
2814134TH AVE NW
ANDOVER
MN
55304
1
$ 4,540.00
$ 4,496.42
333224340045
WEIGHT MICHAEL P&TAMMY D
2828134TH AVE
2828134TH AVE NW
ANDOVER
MN
55304
1
$ 4,540.00
$ 4,496.42
333224340046
KOLINSKI GREGORY R & T M
13339 EIDELWEISS ST
13339 EIDELWEISS ST NW
ANDOVER
AN
55304
1
$ 4,540.00V4,496.426.42333224340047
NOYES ROGER L&JOYCEM
13329 EIDELWEISS ST
13329 EIDELWEISS ST NW
ANDOVER
MN
55304
1
$ 4,540.00.42333224340048
BAILEY JERRY D&JANETC
13319 EIDELWEISS ST
13319 EIDELWEISS ST NW
ANDOVER
MN
55304
1
$ 4,540.006.42333224340052
SCALZE VICTORIA
13437 GLADIOLA ST
13437GLADIOLASTNW
ANDOVER
MN
55304
1
$ 4,540.006.42333224340053
KNOWLTON LAVERN R&LINDAJ
13445 GLADIOLA ST
13445 GLADIOLA ST NW
ANDOVER
MN
55304
1
$ 4,540.006.42333224340054
BRIGHAM APRIL&RAY
13453 GLADIOLA ST
13453 GLADIOLA ST NW
ANDOVER
MN
55304
1
$ 4,540.006.42333224340055
PETERSON ROGER&WANDA
2868135TH AVE
2868135TH AVENW
ANDOVER
MN
55304
1
$ 4,540.006.42333224340056
OLSON JON
2860135TH AVE
2860135TH AVE NW
ANDOVER
MN
55304
1
$ 4,540.006.42333224340058
DIAZ-PENA CARLOS &DUINTEROSJOSE
2844135TH AVE
2844135TH AVE NW
ANDOVER
MN
55304
1
$ 4,540.006.42
333224340059
WERNER KRISTI
2836 135TH AVE
2836 135TH AVE NW
ANDOVER
MN
55304
1
$ 4,540.00
$ 4,496.42
333224340060
HENSEL RICHARD
2828135TH AVE
2828135TH AVE NW
ANDOVER
MN
55304
1
$ 4,540.00
$ 4,496.42
333224340061
DALLMANN KURT E & LARAE M
2820135TH AVE
2820135TH AVE NW
ANDOVER
AN
55304
1
$ 4,540.00
$ 4,496.42
333224340065
BELLRICHARD TODD
2816135TH CIR
2816135TH CUR NW
ANDOVER
MN
55304
1
$ 3,040.00
$ 2,976.54
333224340067
NELSON CHERYL
2852135TH AVE
2852135TH AVE NW
ANDOVER
MN
55304
1
$ 4$40.00
$ 4,496.42
333224340068
DAHLCAROLL
13514 GLADIOLA ST
13514 GLADIOLA ST NW
ANDOVER
MN
55304
1
$ 4,540.00
$ 4,496.42
333224340069
STRIKER SAMUEL
2834135TH CUR
3424 HIGHCREST RD
SAINTANTHON
AN
55418
1
$ 3,040.00
$ 2,976.54
TOTAL1
85
S 378,400.00
$ 374,596.30
Notes: 1)13624 Gladiola Street NW (PID 333224310042) includes 1 existing and 3 potential lots for a total of 4 units.
2) Total Assessments do not exactly match the cost estimate due to rounding.
PROPOSED LIST OF ASSESSED PROPERTIES
EXHIBIT 6
CITY OF ANDOVER
Special Assessment Roll
DATE: October 1, 2019
PROJECT: 19-02 2019 Street Reconstruction
PIN:
LOT:
BLOCK:
Address:
Street
Reconstruction
$ 4,496.42
Interest Rate: 4.50%
Number of Payments: 8
Annual Payment: $ 681.70
Principal Balance: $ 4,017.06 $ 3,516.13 $ 2,992.66 $ 2,445.63 $ 1,873.98 $ 1,276.61 $ 652.36 $
NOTE: 1. Interest will start accruing from the date the special assessment is adopted.
2020
2021
2022
2023
2024
2025
2026
2027
TOTAL
Principal $
479.36
$ 500.93
$ 523.47
$ 547.03
$ 571.65
$ 597.37
$ 624.25
$ 652.36
$ 4,496.42
Interest
202.34
180.77
158.23
134.67
110.05
84.33
57.45
29.34
957.18
Total $
681.70
$ 681.70
$ 681.70
$ 681.70
$ 681.70
$ 681.70
$ 681.70
$ 681.70
$ 5,453.60
Principal Balance: $ 4,017.06 $ 3,516.13 $ 2,992.66 $ 2,445.63 $ 1,873.98 $ 1,276.61 $ 652.36 $
NOTE: 1. Interest will start accruing from the date the special assessment is adopted.
DATE: October 1, 2019
PROJECT: 19-02 2019 Street Reconstruction
PIN:
LOT:
BLOCK:
Address:
Street
Reconstruction
$ 2,976.54
CITY OF ANDOVER
Special Assessment Roll
Interest Rate:
4.50%
Number of Payments:
8
Annual Payment:
$
451.27
2020
2021
2022
2023
2024
2025
2026
2027
TOTAL
Principal
$
317.33
$
331.61
$
346.53
$
362.12
$
378.42
$
395.45
$
413.24
$
431.84
$ 2,976.54
Interest
133.94
119.66
104.74
89.15
72.85
55.82
38.03
19.43
633.62
Total
$
451.27
$
451.27
$
451.27
$
451.27
$
451.27
$
451.27
$
451.27
$
451.27
$ 3,610.16
Principal Balance:
$
2,659.21
$
2,327.60
$
1,981.07
$
1,618.95
$
1,240.53
$
845.08
$
431.84
$
-
NOTE: 1. Interest will start accruing from the date the special assessment is adopted.
AC I T Y 0 F
11 AVYE
1685 CROSSTOWN BOULEVARD N.W.. ANDOVER, MINNESOTA 55304 . (763) 755-5100
FAX (763) 755-8923 • WWW.ANDOVERMN.GOV
TO: Mayor and Council Members
CC: Jim Dickinson, City Administrat
Joe Janish, Community DevelopZrcctoeW
FROM: Jake Griffiths, Associate Planner
SUBJECT: Public Hearing - Vacation of Drainage and Utility Easement — 15281 Swallow St NW —
Jesse Moore - Planning
DATE: November 6, 2019
INTRODUCTION
The property owner is seeking to vacate a portion of the drainage and utility easement across parts of the
residential lot located at 15281 Swallow Street NW within the Woodland Estates subdivision. The
easement area that is to be vacated is shown in yellow on the attached Easement Exhibit.
The property owner is requesting the vacation of easement to increase the usable area to have the ability
to construct an accessory structure in the future.
At the time the subdivision was approved, the drainage and utility easement area was provided for by the
developer. Since that time, Engineering has worked with the applicant and determined the easement can
be confined and still provide adequate drainage. This vacation will not impact and does not include
vacation of the Rural Co-op Power Association power line easement.
Engineering Department Review
The City of Andover Engineering Department completed a review of the proposed vacation of drainage
and utility easement. The Engineering Department does not find any issues from this proposal and are
comfortable with the easement.
ACTION REQUESTED
The Council is asked to hold a public hearing and approve the proposed vacation of drainage and utility
easement.
Respectfully submitted,
Jake Griffiths
Associate Planner
Attachments
Resolution
Location Map
Easement Vacation Exhibit
Cc: Jesse Moore, 15281 Swallow St NW, Andover, MN 55304
CITY OF ANDOVER
COUNTY OF ANOKA
STATE OF MINNESOTA
RES. NO
A RESOLUTION GRANTING THE VACATION OF DRAINAGE AND UTILITY
EASEMENT AT 15281 SWALLOW ST NW, LOT 18, BLOCK 4, WOODLAND ESTATES
FOURTH ADDITION, PIN 22-32-24-32-0090, LEGALLY DESCRIBED AS FOLLOWS AND
SHOWN ON EXHIBIT A:
To vacate that part of the drainage and utility easements as dedicated on Lot 18, Block 4,
WOODLAND ESTATES FOURTH ADDITION, Anoka County, Minnesota described as
follows:
The West 25 feet of the East 30 feet, except the North 35 feet of said Lot 18 and except the South
5.0 feet of said Lot 18 and except that part which lies Southeasterly of a line drawn from a point
in the south line of said Lot 18 distant 10.0 feet west of the southeast corner thereof to a point on
the east line of said Lot 18 distant 10.0 feet North of the southeast corner thereof.
WHEREAS, the property owner has requested to vacate the described drainage and utility
easement; and
WHEREAS, a public hearing was held and there was no opposition to the request; and
WHEREAS, the City Council finds the request would not have a detrimental effect upon the
health, safety, moral, and general welfare of the City of Andover.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Andover hereby
grants the vacation of drainage and utility easement subject to the following:
1. The vacation of easement shall be recorded with Anoka County as shown on "Exhibit A".
2. The vacation of easement shall not include the Rural Co-op Power Association easement.
Adopted by the City Council of the City of Andover on this 6th day of November 2019.
ATTEST
CITY OF ANDOVER
Michelle Harmer, Deputy City Clerk Julie Trude, Mayor
)OVE
Public Notification Area
Date Created: October 17, 2019
Disclaimer., The provider makes no representation or warranties with respect to the reuse of this data.
§ururijars grrtifirtttr
Easement Vacation Survey for:
JESSE MOORE
Property looted in Section N 88°40'43"W 42.98
2; Township 32, Range 24,
Asks County, Minnoota
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To vacate that part of the drainage and utility easements as dedicated on Lot 18, Block 4,
WOODLAND ESTATES FOURTH ADDITION, Anoka County, Minnesota described M
follows:
The West 25 feet of the East 30 feet, except the North 35 feet of said Lot 18 and except the
South 5.0 feet of said Lot l8 and except that part which lies Southeasterly of a line drawn
from a point in the south line of said Lot 18 distant 10.0 feet west of the southeast comer
thereof to a point on the east line of said Lot 18 distant 10.0 feet North of the southeast
comer thereof.
Legal Descerflon project No. 88722 Scale: l"=20' lems"raulou•www. qen, nrmamr.res veomee arm.aunae, mr
Lot 18, Block 4, WOODLAND ESTATESau.a.m.IMsnn.na un l un. seyLxensee rem samywanee.
FOURTH ADDITION F.B.No. 952:28 ma."ay �, u. wwdu. slam orMlmwaw
Anoka County, Minnesota
aaems. 15281 susti. Street Nw Surveyed this 8N day of October 2019.
Andover, MDI
DEM IAS R C 10-29-19 re, easement vanGon
LAND SURVEYING E ENGINEERINGapnea
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MNnupalh, Mlnnewe 55.1a OamaNrt.am R mau•Mb,n. wa. run. uasa
1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755-5100
FAX (763) 755-8923 • WWW.CI.ANDOVER.MN.US
TO: Mayor and Councilmembers
CC: Jim Dickinson, City Administrat
FROM: Lee Brezinka, Finance Manager
SUBJECT: Public Hearing for 2019 Delinquent Service Charges
DATE: November 9, 2019
INTRODUCTION
City Code Title 10 Chapter 3, 10-3-31); City Code Title 10 Chapter 1, 10-1-917; and City Code Title 8 Chapter 5, 8-
5-31) provide for the collection by assessment of unpaid sewer, water, storm sewer, street lighting service charges,
false alarm fines, tree removal, mowing fees and miscellaneous abatement fees. The assessment procedures directed
by state statute 429 is being followed by holding a public hearing to act upon the proposed assessment.
DISCUSSION
The total delinquent service charges were $327,302.89 as of September 26, 2019 when written notification to the
property owners and preparation of the preliminary assessment worksheets began.
Payments received prior to October 23rd have been applied to the delinquent accounts, reducing the delinquent
balance to $268,903.50. Delinquent balances as of October 23, 2019 are charged an administrative fee of 15% and
will carry an 8% interest rate when certified to Anoka County for collection with the 2020 taxes. Therefore, the total
assessment for delinquent sewer, water, storm sewer, street lighting services, false alarm fines, tree removal, mowing
fees and miscellaneous abatement fees is $330,751.31.
BUDGETIMPACT
This request will assist in reducing outstanding receivables for the City.
ACTION REQUESTED
The Andover City Council is requested to approve the attached resolution adopting the assessment roll after Council
has heard and passed upon all objections for delinquent sewer, water, storm sewer, street lighting charges, false alarm
fines, tree removal, mowing fees and miscellaneous abatement fees.
Respectfully submitted,
Lee Brezinka
Attachments: 2019 Delinquent Utility List
Resolution Adopting Assessment Roll for Delinquent Service Charges
CITY OF ANDOVER
COUNTY OF ANOKA
STATE OF MINNESOTA
RES. NO.
A RESOLUTION ADOPTING THE ASSESSMENT ROLL FOR THE CERTIFICATION OF
DELINQUENT SEWER, WATER, STORM SEWER, STREET LIGHTING CHARGES, FALSE
ALARM FINES, TREE REMOVAL, MOWING FEES AND/OR MISCELLANEOUS
ABATEMENT FEES.
WHEREAS, pursuant to a proper notice duly given as required by law, the council has met,
heard and passed upon all objections to the proposed assessment for the delinquent sewer, water,
storm sewer, street lighting charges, false alarm fines, tree removal, mowing fees and/or
miscellaneous abatement fees.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ANDOVER,
MINNESOTA:
1. Such proposed assessment, a copy of which is attached hereto and made part hereof, is
hereby accepted and shall constitute the special assessment against the lands named therein, and
each tract of land therein included is hereby found to be benefited by the proposed improvement
in the amount of the assessment levied against it.
2. Such assessment shall be payable in one annual installment on or before the first
Monday of January, 2020 and shall bear interest at the rate of 8 percent per year.
3. The owners of any property so assessed may, at any time prior to certification of the
assessment to the County Auditor, pay the whole amount of the assessment on such property with
interest accrued to the date of payment, except that no interest shall be charged if the entire
assessment is paid by November 6, 2019.
Adopted by the City Council of the City of Andover on this 6th day of November, 2019.
CITY OF ANDOVER
ATTEST:
Michelle Hartner — Deputy City Clerk Julie Trude, Mayor
CITY OF ANDOVER
2019 Delinquent Utility List
Pending Amount
to be Certified
Property Address
Amount
(including 23%)
1020 159TH LN NW
119.23
146.65
1047 152ND LN NW
467.16
574.61
1048152ND LN NW
418.25
514.45
1065162ND AVE NW
32.02
39.38
1076 161ST LN NW
601.15
739.41
1081139TH LN NW
222.56
273.75
1091160TH AVE NW
914.62
1,124.98
1092 142ND LN NW
903.20
1,110.94
1093 152ND LN NW
912.02
1,121.78
11177TH AVE NW
44.24
54.42
1103 161ST LN NW
1,062.57
1,306.96
1105139TH LN NW
735.18
904.27
1112140TH LN NW
259.77
319.52
1114162ND AVE NW
18.59
22.87
1137137TH LN NW
1,490.72
1,833.59
1155 142ND AVE NW
269.40
331.36
1158 166TH AVE NW
1,185.22
1,457.82
1169 159TH AVE NW
565.69
695.80
1173 167TH AVE NW
849.96
1,045.45
1212 142ND LN NW
446.55
549.26
1215142ND LN NW
580.87
714.47
1223 162ND AVE NW
946.07
1,163.67
1229 155TH LN NW
1,063.23
1,307.77
1230143RD LN NW
9.20
11.32
1237142ND AVE NW
281.91
346.75
1265 142ND AVE NW
550.16
676.70
1289 140TH LN NW
714.09
878.33
1293 146TH LN NW
239.99
295.19
1317 145TH AVE NW
568.33
699.05
1320153RD LN NW
891.37
1,096.39
1323 146TH LN NW
572.60
704.30
13319 HUMMINGBIRD 5T NW
514.28
632.56
13319 QUINN ST NW
688.40
846.73
13319 QUINN ST NW
261.39
321.51
13354 IBIS ST NW
793.52
976.03
13360 QUINN ST NW
253.89
312.28
13364 JAY ST NW
583.85
718.14
13373 LILY ST NW
877.40
1,079.20
13377 UPLANDER ST NW
487.45
599.56
13381 HUMMINGBIRD ST NW
446.05
548.64
13405 UPLANDER ST NW
667.27
820.74
1342 145TH AVE NW
655.29
806.01
13431 NARCISSUS ST NW
106.48
130.97
13434 JONQUIL ST NW
346.31
425.96
13436 NARCISSUS ST NW
358.48
440.93
1345 156TH LN NW
1,408.69
1,732.69
13453 GLADIOLA ST NW
146.65
180.38
13454 JAY ST NW
643.60
791.63
13455 SWALLOW ST NW
864.50
1,063.34
13482 MARTIN ST NW
491.02
603.95
1350153RD LN NW
927.89
1,141.30
13500 HIDDEN CREEK DR NW
578.93
712.08
13519 NARCISSUS ST NW
100.00
123.00
CITY OF ANDOVER
2019 Delinquent Utility List
Pending Amount
to be Certified
Property Address
Amount
(including 23%)
13536 PARTRIDGE CIR NW
453.21
557.45
13548 HEATHER ST NW
357.01
439.12
13548 JONQUIL ST NW
78.43
96.47
13562 PARTRIDGE CIR NW
330.36
406.34
13564 NARCISSUS ST NW
594.60
731.36
13565 POPPY ST NW
46.83
57.60
13577 XAVIS ST NW
491.66
604.74
13589 ORCHID ST NW
506.57
623.08
13601 ORCHID ST NW
124.39
153.00
13602 PARTRIDGE CIR NW
464.70
571.58
13604 HIDDEN CREEK DR NW
595.63
732.62
13611 BITTERSWEET ST NW
517.75
636.83
13611 GLADIOLA ST NW
160.16
197.00
13638 HIDDEN CREEK DR NW
740.20
910.45
13638 NARCISSUS ST NW
349.50
429.89
13642 PARTRIDGE CIR NW
83.42
102.61
13659 XAVIS ST NW
754.05
927.48
1367 162ND AVE NW
115.97
142.64
13677 XAVIS ST NW
880.90
1,083.51
13683 YUKON ST NW
108.24
133.14
13693 HIDDEN CREEK DR NW
752.62
925.72
13693 HIDDEN CREEK DR NW
243.95
300.06
13728 UNDERCLIFT ST NW
591.69
727.78
13746 YELLOWPINE ST NW
509.84
627.10
13748 ROUND LAKE BLVD NW
156.13
192.04
13755 QUINN ST NW
343.23
422.17
13763 RAVEN ST NW
1,040.55
1,279.88
1377142ND AVE NW
107.64
132.40
13770 BUTTERNUT ST NW
106.49
130.98
13775 GOLDENROD ST NW
580.21
713.66
13776 RAVEN ST NW
502.84
618.49
13777 NORTHWOOD DR NW
188.50
231.86
13780 QUINN ST NW
665.80
818.93
13787 HOLLY ST NW
231.39
284.61
13787 RAVEN ST NW
270.61
332.85
13788 VALE ST NW
407.12
500.76
13803 GOLDENROD ST NW
184.25
226.63
13807 QUAY ST NW
485.29
596.91
13808 ROUND LAKE BLVD NW
322.49
396.66
13819 QUINN ST NW
357.01
439.12
13819 VINTAGE Ci NW
563.00
692.49
13836 EVERGREEN ST NW
510.37
627.76
13839 NORTHWOOD DR NW
322.08
396.16
13841 SILVEROD Ci NW
497.61
612.06
13845 UNDERCLIFT ST NW
437.21
537.77
13847 SILVEROD CT NW
528.57
650.14
13848 SILVEROD CT NW
387.18
476.23
13852 ROUND LAKE BLVD NW
317.36
390.35
13853 SILVEROD Ci NW
178.64
219.73
13864 REDWOOD ST NW
549.30
675.64
13870 SILVEROD CT NW
122.72
150.95
13872 ROSE ST NW
564.79
694.69
13877 MARTIN ST NW
220.92
271.73
CITY OF ANDOVER
2019 Delinquent Utility List
Property Address
Amount
Pending Amount
to be Certified
(including 23%)
13878 CROSSTOWN DR NW
215.64
265.24
13885 WOODBINE ST NW
1,214.85
1,494.27
13888 BLUEBIRD ST NW
537.36
660.95
13890 SILVEROD CT NW
143.44
176.43
13893 BLUEBIRD ST NW
255.59
314.38
13895 EVERGREEN ST NW
51.39
63.21
13897 DRAKE ST NW
673.55
828.47
13901 MARTIN ST NW
459.32
564.96
13910 PARTRIDGE ST NW
357.00
439.11
13919 WINTERGREEN ST NW
1,521.16
1,871.03
13928 QUINN ST NW
356.99
439.10
13928 WINTERGREEN ST NW
551.15
677.91
13934 PARTRIDGE ST NW
89.50
110.09
13936 WOODBINE ST NW
559.72
688.46
13943 CROCUS ST NW
322.51
396.69
13952 MARTIN ST NW
415.26
510.77
13958 MARTIN ST NW
754.47
928.00
13961 HOLLY ST NW
656.52
807.52
13963 BLUEBIRD ST NW
686.90
844.89
13974 NORWAY ST NW
1,067.87
1,313.48
13977 TULIP ST NW
652.65
802.76
13979 FLORA ST NW
322.51
396.69
13980 YUCCA ST NW
104.45
128.47
13983 NORWAY Ci NW
83.02
102.11
13985 HOLLY ST NW
694.72
854.51
13990 JUNIPER ST NW
649.79
799.24
13994 SILVEROD ST NW
770.17
947.31
14000 YUCCA ST NW
559.72
688.46
14006 U N DERCLI FT ST NW
92.54
113.82
14011 JUNIPER CIR NW
428.17
526.65
14014 AZTEC ST NW
88.51
108.87
14014 NORWAY ST NW
1,086.04
1,335.83
14015 RAVEN ST NW
356.63
438.65
14017 QUINCE ST NW
297.20
365.56
14025 OLIVE ST NW
967.11
1,189.55
14026 QUINN ST NW
357.01
439.12
14027 CROSSTOWN BLVD NW
255.00
313.65
14028 AZTEC ST NW
843.80
1,037.87
14030 PRAIRIE RD NW
46.85
57.63
14031 NORWAY ST NW
860.12
1,057.95
14038 PARTRIDGE ST NW
357.01
439.12
14042 UNDERCLIFf ST NW
544.37
669.58
14081 AZTEC ST NW
232.13
285.52
14091 RAVEN ST NW
117.70
144.77
14091 RAVEN ST NW
12.52
15.40
141 139TH AVE NW
843.36
1,037.33
14104 ORCHID ST NW
858.02
1,055.36
1411 152ND AVE NW
960.41
1,181.30
14136 ORCHID ST NW
841.74
1,035.34
14149 ORCHID ST NW
963.98
1,185.70
14159 VALE ST NW
231.17
284.34
14165 ORCHID ST NW
537.40
661.00
14174 QUINN ST NW
460.96
566.98
CITY OF ANDOVER
2019 Delinquent Utility List
Pending Amount
to be Certified
Property Address Amount (including 23%)
1420 148TH LN NW
464.88
571.80
14206 QUAY ST NW
19.55
24.05
1422 138TH LN NW
521.77
641.78
14225 UNDERCLIFT Ci NW
142.18
174.88
14227 CRANE ST NW
149.80
184.25
142271VYWOOD ST NW
73.05
89.85
14231 VALE ST NW
681.08
837.73
14239 VINTAGE ST NW
167.25
205.72
14248 WOODBINE ST NW
562.77
692.21
14252 CRANE ST NW
1,197.25
1,472.62
14255 RAVEN ST NW
781.01
960.64
14257 BLUEBIRD ST NW
758.76
933.27
14260 ROUND LAKE BLVD NW
48.11
59.18
14263 ZILLA ST NW
348.12
428.19
14267 ROUND LAKE BLVD NW
176.98
217.69
14268 UNDERCLIFT ST
247.11
303.95
14269 VINTAGE ST NW
322.51
396.69
14270 CROSSTOWN BLVD NW
132.05
162.42
1428 146TH LN NW
46.89
57.67
14281 ZILLA ST NW
710.99
874.52
14284 XEON ST NW
630.62
775.66
14290 VALE ST NW
587.29
722.37
14296 BLUEBIRD ST NW
430.56
529.59
14297 ZILLA ST NW
695.98
856.06
14305 THRUSH ST NW
559.90
688.68
14311 ROUND LAKE BLVD NW
469.43
577.40
14317 CROSSTOWN BLVD NW
46.85
57.63
14320 PARTRIDGE ST NW
588.34
723.66
14322 RAVEN ST NW
304.99
375.14
14323 RAVEN ST NW
495.67
609.67
14325 ROUND LAKE BLVD NW
411.26
505.85
14326 EAGLE ST NW
425.42
523.27
14328 WOODBINE ST NW
322.35
396.49
14329 UNDERCLIFF ST NW
322.51
396.69
14348 VALE ST NW
498.62
613.30
14348 VINTAGE ST NW
329.83
405.69
14349 WOODBINE ST NW
224.59
276.25
1435 140TH AVE NW
1,361.63
1,674.80
14350 HUMMINGBIRD ST NW
99.41
122.27
14351 VALE ST NW
795.52
978.49
14352 EAGLE ST NW
527.65
649.01
14354 DRAKE ST NW
345.04
424.40
14354 OSAGE ST NW
16.64
20.47
14357 EAGLE ST NW
893.29
1,098.75
14357 PARTRIDGE ST NW
574.17
706.23
14381 XEON ST NW
22.07
27.15
14382 WINTERGREEN ST NW
330.49
406.50
14387 CRANE ST NW
656.10
807.00
14388JUNIPER ST NW
582.95
717.03
14391 WINTERGREEN ST NW
762.47
937.84
14399 VALE ST NW
399.15
490.95
14400 QUINN DR NW
485.17
596.76
14406 WINTERGREEN ST NW
136.85
168.33
CITY OF ANDOVER
2019 Delinquent Utility List
Pending Amount
to be Certified
Property Address
Amount
(including 23%)
14424 PRAIRIE RD NW
44.91
55.24
14429 OSAGE ST NW
599.48
737.36
14430 GOLDENROD ST NW
259.20
318.82
14435 VALE ST NW
323.89
398.38
14437 HUMMINGBIRD ST NW
870.51
1,070.73
14440 ROUND LAKE BLVD NW
46.89
57.67
14447 KERRY ST NW
440.33
541.61
14447 VALE ST NW
767.05
943.47
14451 JUNIPER ST NW
411.13
505.69
14458 INCA ST NW
52.34
64.38
14458 INCA ST NW
165.89
204.04
14459 VALE ST NW
732.48
900.95
14469 AZTEC ST NW
758.50
932.96
14469 XEON ST NW
132.62
163.12
14511 ELDORADO ST NW
944.53
1,161.77
14512 DAKOTA ST NW
766.73
943.08
14513 KERRY ST NW
517.28
636.25
14516 ROUND LAKE BLVD NW
511.36
628.97
14524 BLUEBIRD ST NW
674.16
829.22
14551 DAKOTA ST NW
914.22
1,124.49
14558 CRANE ST NW
607.13
746.77
1457160TH AVE NW
2,249.87
2,767.34
14579 JAY ST NW
116.17
142.89
14592 JAY ST NW
644.53
792.77
14606 DRAKE ST NW
533.33
656.00
14628 JAY ST NW
436.01
536.29
14642 DRAKE ST NW
149.84
184.30
14661 GROUSE ST NW
114.74
141.13
14672 HUMMINGBIRD ST NW
569.04
699.92
14705 PALM ST NW
21.59
26.56
14706 BLUEBIRD ST NW
563.50
693.11
14712 JAY ST NW
1,134.04
1,394.87
14734 EAGLE ST NW
733.39
902.07
14737 GROUSE ST NW
931.04
1,145.18
1474155TH LN NW
220.35
271.03
14745 EVERGREEN ST NW
21.59
26.56
1476155TH AVE NW
900.08
1,107.10
14761 GROUSE ST NW
533.93
656.73
14810 PALM ST NW
21.59
26.56
14810 UNIVERSITY AVE NW
11.13
13.69
14820 BLACKFOOT ST NW
46.89
57.67
1484155TH LN NW
212.33
261.17
14848 JAY ST NW
94.49
116.22
1485139TH LN NW
133.36
164.03
1485154TH IN NW
391.90
482.04
14912 MAKAH ST NW
11.77
14.48
14913 7TH AVE NW
46.89
57.67
14925 OSAGE ST NW
118.50
145.76
1493 144TH AVE NW
484.96
596.50
14977 EAGLE ST NW
473.04
581.84
14978 DRAKE ST NW
987.07
1,214.10
1500147TH AVE NW
808.22
994.11
15012 RAVEN ST NW
1,399.55
1,721.45
CITY OF ANDOVER
2019 Delinquent Utility List
Pending Amount
to be Certified
Property Address
Amount
(including 23%)
15012 ROUND LAKE BLVD NW
43.21
53.15
15020 DRAKE ST NW
67.22
82.68
15022 RAVEN ST NW
341.38
419.90
15030 AVOCET ST NW
699.97
860.96
15032 7TH AVE NW
46.69
57.43
15065 CRANE ST NW
482.40
593.35
15103 THRUSH ST NW
609.92
750.20
1511154TH AVE NW
796.20
979.33
15114 YELLOWPINE ST NW
14.42
17.74
1516148TH LN NW
270.17
332.31
15160 UPLANDER ST NW
114.05
140.28
15168 YELLOWPINE ST NW
977.77
1,202.66
15196 IVYW OOD ST NW
105.53
129.80
152 173RD AVE NW
10.83
13.32
15202 7TH AVE N
45.48
55.94
15212 7TH AVE NW
46.89
57.67
15216 BLUEBIRD ST NW
1,183.04
1,455.14
15221 ORCHID ST NW
32.84
40.39
15269 QUINN ST NW
497.89
612.40
1528 139TH LN NW
381.51
469.26
15282 AVOCET ST NW
946.93
1,164.72
15295 PARTRIDGE ST NW
800.88
985.08
15298 WINTERGREEN ST NW
624.00
767.52
153 139TH AVE NW
96.10
118.20
15321 MARTIN ST NW
156.55
192.56
15328 LINNET ST NW
111.61
137.28
1533 155TH LN NW
125.48
154.34
15333 VERDIN ST NW
887.51
1,091.64
15349 LINNET ST NW
1,075.87
1,323.32
1535 154TH AVE NW
716.86
881.74
15356 XEON ST NW
807.87
993.68
15400 MARTIN ST NW
317.76
390.84
15410 SILVEROD ST NW
33.18
40.81
1542 153RD LN NW
159.31
195.95
15437 UNITY ST NW
637.48
784.10
15451 PRAIRIE RD NW
46.89
57.67
15456 WINTERGREEN ST NW
784.74
965.23
15459 KIOWA ST NW
10.83
13.32
15464 WINTERGREEN ST NW
243.78
299.85
15466 MARTIN ST NW
820.47
1,009.18
15468 ELDORADO ST NW
21.59
26.56
15492 YELLOWPINE ST NW
122.86
151.12
15498 YELLOWPINE ST NW
381.53
469.28
1550181ST AVE NW
33.17
40.80
15503 AVOCET ST NW
894.95
1,100.79
15506 EAGLE ST NW
482.04
592.91
15513 YELLOWPINE ST NW
873.10
1,073.91
15523 POTAWATOMI ST NW
33.72
41.48
15524 KUMQUAT ST NW
20.51
25.23
15524 LARCH ST NW
46.87
57.65
15525 XEON ST NW
527.29
648.57
15525 YELLOWPINE ST NW
226.40
278.47
15532 NIGHTENGALE ST NW
46.89
57.67
CITY OF ANDOVER
2019 Delinquent Utility List
Pending Amount
to be Certified
Property Address
Amount
(including 23%)
15537 YELLOWPINE ST NW
714.19
878.45
15539 VALE ST NW
579.81
713.17
15544 EAGLE ST NW
668.51
822.27
15548 ROUND LAKE BLVD NW
105.53
129.80
15554 ROUND LAKE BLVD NW
44.24
54.42
15557 ROUND LAKE BLVD NW
46.89
57.67
15612 LARCH ST NW
10.83
13.32
15613 AVOCET ST NW
596.08
733.18
15614 PRAIRIE RD
46.26
56.90
15631 LINNET ST NW#308
33.04
40.64
15633 PRAIRIE RD NW
45.52
55.99
15640 SYCAMORE ST NW
46.89
57.67
15653 SYCAMORE ST NW
21.59
26.56
15658 FOX ST NW
46.89
57.67
15710 SYCAMORE ST NW
44.91
55.24
15722 DRAKE ST NW
1,600.58
1,968.71
15740 KIOWA ST NW
20.34
25.02
1576 141ST LN NW
900.25
1,107.31
15762 CROSSTOWN BLVD NW
33.70
41.45
15788 KILLDEER ST NW
709.32
872.46
15791 VALE ST NW
447.16
550.01
15817 KILLDEER ST NW
608.01
747.85
15819 MARTIN ST NW
888.28
1,092.58
15820 ROUND LAKE BLVD NW
46.89
57.67
15830 MAKAH ST NW
44.19
54.35
15831 MARTIN ST NW
1,129.05
1,388.73
15850 SYCAMORE ST NW
46.89
57.67
15874 AVOCET ST NW
1,147.12
1,410.96
15883 NORWAY ST NW
945.85
1,163.40
15884 YELLOWPINE ST NW
642.11
789.80
15919 NORWAY ST N W
1,155.95
1,421.82
15921 NARCISSUS ST NW
46.87
57.65
15921 SWALLOW ST NW
81.39
100.11
15931 VINTAGE ST NW
44.92
55.25
15934 SWALLOW ST NW
81.39
100.11
15943 LIN NET ST NW
105.39
129.63
15944 SYCAMORE ST NW
373.05
458.85
15955 DRAKE ST NW
668.10
821.76
15958 XEON ST NW
595.62
732.61
15959 POTAWATOMI ST NW
33.72
41.48
15969 VALE ST NW
477.44
587.25
15971 YELLOWPINE ST NW
782.81
962.86
15974 UNIVERSITY AVE NW
46.19
56.81
15978 VALE ST NW
493.65
607.19
15979 VALE ST NW
116.05
142.74
15986 CRANE ST NW
130.16
160.10
15987 QUINN ST NW
81.25
99.94
15999 XEON ST NW
558.58
687.05
16000 YELLOWPINE ST NW
452.36
556.40
16011 QUINCE ST NW
871.54
1,071.99
16011 SWALLOW ST NW
81.35
100.06
16014 QUAPAW ST NW
46.89
57.67
16015 QUAPAW ST NW
10.83
13.32
CITY OF ANDOVER
2019 Delinquent Utility List
Pending Amount
to be Certified
Property Address
Amount
(including 23%)
16028 QUINN ST NW
81.39
100.11
16034 VALE ST NW
434.01
533.83
16040 UNIVERSITY AVE NW
44.89
55.21
16044 SWALLOW ST NW
81.24
99.93
16074 YELLOWPINE ST NW
257.95
317.28
16109 VALLEY DR NW
46.85
57.63
16119 VINTAGE ST NW
46.09
56.69
16119 XENIA ST NW
46.03
56.62
16134 TULIP ST NW
32.84
40.39
16138 CRANE ST NW
171.22
210.60
16159 VALLEY DR NW
46.87
57.65
16173 UNITY ST NW
106.94
131.54
16200 VALLEY DR NW
46.89
57.67
16203 UNITY ST NW
163.23
200.77
16209 VALLEY DR NW
44.41
54.62
16228 TULIP ST NW
44.42
54.64
16236 TULIP ST NW
44.24
54.42
16238 7TH AVE NW
33.17
40.80
16279 CROSSTOWN BLVD NW
21.59
26.56
16309 WARD LAKE DR
46.89
57.67
16315 ROUND LAKE BLVD NW
45.91
56.47
16358 CROSSTOWN BLVD NW
45.12
55.50
16410 JUNIPER ST NW
69.05
84.93
16412 MAKAH ST NW
33.50
41.21
16435 ZUNI ST NW
46.89
57.67
16440 WARD LAKE DR NW
46.89
57.67
16441 WINTERGREEN ST NW
724.22
890.79
1645 148TH LN NW
483.30
594.46
16474 VENTRE ST NW
42.98
52.87
16481 YAKIMA ST NW
105.53
129.80
16491 ORCHID ST NW
22.98
28.27
16525 WARD LAKE DR NW
11.15
13.71
1653 147TH AVE NW
1,255.86
1,544.71
16559 WINTERGREEN ST NW
84.79
104.29
16563 HANSON BLVD NW
46.83
57.60
16604 YAKIMA ST NW
46.89
57.67
16615 JONQUIL ST NW
14.52
17.86
16645 ARGON ST NW
79.77
98.12
1665 147TH AVE NW
341.63
420.20
16655 CROCUS ST NW
46.74
57.49
16659 ELDORADO ST NW
46.89
57.67
1667147TH LN NW
525.40
646.24
16714 ARGON ST NW
46.89
57.67
16726 DAKOTA STREET NW
11.28
13.87
16727 ZION ST NW
73.62
90.55
16738 DAKOTA STREET NW
11.28
13.87
16764 DAKOTA STREET NW
11.28
13.87
1677147TH AVE NW
734.42
903.34
1682148TH AVE NW
499.85
614.82
1684181ST AVE NW
46.89
57.67
1685 146TH AVE NW
670.35
824.53
16862 DAKOTA STREET NW
22.74
27.97
1687155TH AVE NW
20.03
24.64
CITY OF ANDOVER
2019 Delinquent Utility List
Pending Amount
to be Certified
Property Address
Amount
(including 23%)
16888 DAKOTA STREET NW
16.23
19.96
16909 YELLOWPINE ST NW
327.52
402.85
16923 DAKOTA STREET NW
11.28
13.87
16926 DAKOTA STREET NW
22.74
27.97
1692711VARO ST NW
10.98
13.51
1693 145TH LN NW
100.00
123.00
16958 VALLEY VIEW DR NW
46.89
57.67
16960 DAKOTA STREET NW
11.79
14.50
16971 PARTRIDGE ST NW
105.53
129.80
16992 QUAY ST NW
46.86
57.64
17019 ARGON ST NW
15.69
19.30
17021 WACO ST NW
105.53
129.80
17025 EIDELWEISS ST NW
21.59
26.56
17038 DAKOTA STREET NW
22.74
27.97
17045 DAKOTA STREET NW
11.28
13.87
17046 AZTEC ST NW
46.83
57.60
1705148TH LN NW
563.09
692.60
17050 DAKOTA STREET NW
11.28
13.87
17065 WACO ST NW
99.67
122.59
17073 EIDELWEISS ST NW
44.24
54.42
17077 DAKOTA STREET NW
11.28
13.87
17090 DAKOTA STREET NW
11.28
13.87
17127 TULIP ST NW
46.89
57.67
17132 ROUND LAKE BLVD NW
11.15
13.71
17136 ARGON ST NW
46.74
57.49
17142 CROSSTOWN BLVD NW
46.89
57.67
17163 CROSSTOWN BLVD NW
46.83
57.60
17170 NAVAJO ST NW
32.84
40.39
17185 NAVAJO ST NW
46.18
56.80
1720148TH LN NW
861.08
1,059.13
17208 WOODBINE ST NW
11.51
14.16
1721 146TH AVE NW
524.94
645.68
17225 ROUND LAKE BLVD NW
46.89
57.67
17308 ROANOKE ST NW
46.89
57.67
17371 HEATHER ST NW
46.87
57.65
17466 AZTEC ST NW
200.92
247.13
1747 148TH LN NW
580.85
714.45
17528 FUNTWOOD ST NW
46.89
57.67
17536 QUAY ST NW
45.52
55.99
1755 146TH AVE NW
350.84
431.53
17559 QUAY ST NW
32.84
40.39
17605 HANSON BLVD NW
44.24
54.42
17641 PARTRIDGE ST NW
46.89
57.67
17648 ROUND LAKE BLVD NW
22.63
27.83
17715 YELLOWPINE ST NW
46.81
57.58
17726 ROUND LAKE BLVD NW
33.17
40.80
17739 SWALLOW ST NW
46.89
57.67
17750 AZTEC ST NW
46.92
57.71
17752 QUAY ST NW
46.89
57.67
17800 PALM ST NW
46.89
57.67
17801 SWALLOW CIR NW
33.23
40.87
17801 ZION ST NW
46.89
57.67
1781167TH AVE NW
46.87
57.65
CITY OF ANDOVER
2019 Delinquent Utility List
Pending Amount
to be Certified
Property Address
Amount
(including 23%)
17817 HANSON BLVD NW
21.59
26.56
17845 GLADIOLA ST NW
46.89
57.67
179 142ND AVE NW
495.78
609.81
17900 UPLANDER ST NW
46.15
56.76
17920 CROCUS ST NW
46.85
57.63
17931 ARROWHEAD ST NW
46.89
57.67
18001 TAMARACK ST NW
46.89
57.67
1801139TH AVE NW
426.45
524.53
18016 BLUEBIRD ST NW
46.89
57.67
18086 PALM ST NW
10.83
13.32
181 139TH AVE NW
857.10
1,054.23
1815 139TH AVE NW
305.87
376.22
1815 ANDOVER BLVD NW
46.89
57.67
1829 139TH AVE NW
341.01
419.44
1829 139TH AVE NW
240.87
296.27
1831 ANDOVER BLVD NW
136.12
167.43
1846 ANDOVER BLVD NW
97.69
120.16
1859 135TH AVE NW
1,007.60
1,239.35
1869 135TH AVE NW
445.83
548.37
1874134TH LN NW
489.28
601.81
1887134TH AVE NW
200.00
246.00
1896134TH AVE NW
160.81
197.80
1933 155TH AVE NW
548.56
674.73
1942 140TH AVE NW
639.61
786.72
1966154TH LN NW
484.74
596.23
1982134TH LN NW
1,196.73
1,471.98
1984153RD LN NW
761.17
936.24
2022 149TH AVE NW
1,009.56
1,241.76
2054 138TH AVE NW
356.67
438.70
2057142ND LN NW
115.39
141.93
2060139TH LN NW
79.63
97.94
2060 VETERANS MEMORIAL BLVD NW
883.86
1,087.15
2065 139TH AVE NW
357.01
439.12
2066175TH LN NW
10.83
13.32
2068142ND AVE NW
741.09
911.54
2097135TH LN NW
54.25
66.73
2101140TH LN NW
631.59
776.86
2102150TH LN NW
377.91
464.83
2103 134TH AVE NW
553.97
681.38
2103 134TH AVE NW
44.22
54.39
2103 134TH AVE NW
84.75
104.24
2111140TH LN NW
632.66
778.17
2115 ANDOVER BLVD NW
75.00
92.25
2116 139TH AVE NW
35.25
43.36
2121140TH LN NW
632.07
777.45
2128141ST AVE NW
576.07
708.57
2140140TH LN NW
632.66
778.17
2141140TH LN NW
632.66
778.17
2142 141ST LN NW
652.00
801.96
2149 141ST LN NW
1,005.77
1,237.10
2149161ST AVE NW
46.89
57.67
215144TH LN NW
89.95
110.64
2150 150TH LN NW
365.74
449.86
CITY OF ANDOVER
2019 Delinquent Utility List
Pending Amount
to be Certified
Property Address
Amount
(including 23%)
2151140TH LANE NW
287.80
353.99
2156 176TH LN NW
34.43
42.35
2161157TH LN NW
22.53
27.71
2195140TH LN NW
166.54
204.84
2209 151ST LN NW
501.82
617.24
2210154TH LN NW
33.37
41.05
2211159TH LN NW
36.40
44.77
2212141ST AVE NW
508.26
625.16
2214 135TH LN NW
118.18
145.36
2222 VETERANS MEMORIAL BLVD
NW
526.61
647.73
2227 161ST ST NW
46.89
57.67
2239 140TH AVE NW
253.30
311.56
2249140TH AVE NW
356.68
438.72
2257135TH AVE NW
44.65
54.92
2292 VETERANS MEMORIAL BLVD
NW
125.99
154.97
230177TH AVE NW
46.89
57.67
2306 VETERANS MEMORIAL BLVD
NW
87.53
107.66
2311 VETERANS MEMORIAL BLVD
NW
897.28
1,103.65
2315138TH LN NW
556.71
684.75
2320 S COON CREEK DR NW
312.18
383.98
2324169TH LN NW
21.78
26.79
2326 149TH AVE NW
650.81
800.50
2334 158TH AVE NW
26.00
31.98
2342 145TH AVE NW
157.30
193.48
2346 141ST LN NW
596.88
734.16
2347167TH AVE NW
46.89
57.67
2356 145TH AVE NW
93.66
115.20
2391 VETERANS MEMORIAL BLVD
NW
203.03
249.73
2427 135TH AVE NW
104.14
128.09
2435136TH LN NW
104.14
128.09
2439138TH AVE NW
611.25
751.84
2450177TH LN NW
46.89
57.67
2451 138TH AVE NW
602.96
741.64
2463 135TH AVE NW
531.72
654.02
2475161ST AVE NW
46.83
57.60
2482133RD LN NW
203.93
250.83
2515 138TH AVE NW
580.22
713.67
2518 176TH AVE NW
21.59
26.56
2525 138TH AVE NW
65.21
80.21
2527 138TH AVE NW
293.19
360.62
2539134TH AVE NW
568.13
698.80
254 150TH LN NW
21.66
26.64
2556154TH LN NW
1,102.88
1,356.54
2557 138TH AVE NW
51.67
63.55
2560140TH AVE NW
109.78
135.03
2575 ANDOVER BLVD NW
33.17
40.80
2613 140TH AVE NW
315.99
388.67
2619 138TH AVE NW
597.60
735.05
2643 139TH LN NW
78.47
96.52
2644140TH AVE NW
75.58
92.96
2646133RD LN NW
322.51
396.69
2659 139TH LN NW
322.51
396.69
2700161ST AVE NW
44.88
55.20
CITY OF ANDOVER
2019 Delinquent Utility List
Pending Amount
to be Certified
Property Address
Amount
(including 23%)
2708140TH LN NW
126.92
156.11
2713 139TH LN NW
47.33
58.22
2714133RD LN NW
308.15
379.02
2718 140TH LN NW
208.05
255.90
2719 140TH AVE NW
322.23
396.34
2738 140TH LN NW
322.51
396.69
2754 134TH AVE NW
322.14
396.23
2813 133RD AVE NW
308.08
378.94
2820 168TH LN NW
46.89
57.67
2820 172ND AVE NW
44.88
55.20
2856 BUNKER LAKE BLVD NW
74.78
91.98
2859 135TH LN NW
304.77
374.87
2875 161ST AVE NW
32.51
39.99
2876 174TH LN NW
22.08
27.16
289 139TH AVE NW
1,024.97
1,260.71
2903 141ST LN NW
118.22
145.41
2925 177TH AVE NW
33.74
41.50
2926142ND AVE NW
155.35
191.08
2937174TH LN NW
105.39
129.63
2938142ND AVE NW
75.31
92.63
2938142ND LN NW
322.51
396.69
2955 139TH AVE NW
645.95
794.52
298137TH LN NW
608.09
747.95
298143RD AVE NW
855.56
1,052.34
2990153RD AVE NW
21.78
26.79
3024166TH LN NW
16.54
20.34
3045 142ND LN NW
24.97
30.71
3061164TH LN NW
46.89
57.67
31 OLD CONSTANCE BLVD NW
46.19
56.81
310 143RD AVE NW
53.67
66.01
3104 174TH AVE NW
46.89
57.67
3118162ND LN NW
455.16
559.85
3129 174TH AVE NW
21.28
26.17
3130172ND AVE NW
46.83
57.60
3148 BUNKER LAKE BLVD NW
560.85
689.85
3149 136TH AVE NW
357.01
439.12
3155 BUNKER LAKE BLVD NW
308.03
378.88
3221 138TH AVE NW
538.28
662.08
3224 139TH AVE NW
333.66
410.40
3230176TH LN NW
46.89
57.67
3296139TH AVE NW
967.69
1,190.26
3297 139TH AVE NW
398.29
489.90
3308 173RD LN NW
46.89
57.67
3309173RD LN NW
46.89
57.67
3316140TH AVE NW
916.98
1,127.89
3336 138TH AVE NW
43.96
54.07
3339 174TH LN NW
21.75
26.75
3348168TH LN NW
105.36
129.59
3349 173RD AVE NW
84.75
104.24
3349 173RD LN NW
46.83
57.60
3352 139TH AVE NW
1,440.67
1,772.02
3384 178TH AVE NW
11.15
13.71
3385 178TH AVE NW
46.86
57.64
CITY OF ANDOVER
2019 Delinquent Utility List
Pending Amount
to be Certified
Property Address
Amount
(including 23%)
3407 138TH LN NW
452.00
555.96
3413 135TH AVE NW
322.51
396.69
3420 141ST LN NW
322.51
396.69
3437 141ST LN NW
322.33
396.47
3438 139TH LN NW
536.87
660.35
3447 S COON CREEK DR NW
2,006.83
2,468.40
3451138TH LN NW
535.48
658.64
3452 141ST LN NW
322.35
396.49
3456138TH LN NW
128.75
158.36
3457 167TH LN NW
74.39
91.50
3466169TH LN NW
49.65
61.07
3470175TH LN NW
46.87
57.65
3479 140TH LN NW
34.50
42.44
3500 136TH LN NW
71.98
88.54
3501135TH LN NW
322.51
396.69
3503140TH LN NW
686.17
843.99
3508 141ST LN NW
322.51
396.69
3510173RD LN NW
32.84
40.39
3511142ND LN NW
636.06
782.35
3521135TH LN NW
322.51
396.69
3521 136TH AVE NW
322.36
396.50
3522142ND AVE NW
308.19
379.07
3523 141ST LN NW
311.84
383.56
3531 136TH AVE NW
322.51
396.69
3535 134TH AVE NW
593.45
729.94
3542 142ND AVE NW
322.51
396.69
3554134TH AVE NW
289.03
355.51
3559 133RD LN NW
537.98
661.72
3561178TH LN NW
46.89
57.67
3615 145TH AVE NW
71.98
88.54
3616 140TH LN NW
658.46
809.91
3616161ST AVE NW
14.55
17.90
3617 141ST LN NW
125.18
153.97
3627178TH LN NW
105.53
129.80
3628 175TH AVE NW
103.85
127.74
3629 140TH LN NW
134.55
165.50
3635 145TH AVE NW
322.21
396.32
3649 139TH LN NW
600.82
739.01
3665 177TH AVE NW
73.20
90.04
3680 153RD LN NW
46.89
57.67
3689138TH LN NW
472.25
580.87
3694174TH LN NW
22.13
27.22
3705 174TH AVE NW
46.89
57.67
3714 174TH AVE NW
46.83
57.60
3719139TH AVE NW
281.41
346.13
3725174TH AVE NW
44.88
55.20
3729 139TH LN NW
213.14
262.16
3735 VALLEY VIEW DR NW
22.23
27.34
375 ANDOVER BLVD NW
21.59
26.56
3754172ND LN NW
33.70
41.45
3754174TH AVE NW
33.24
40.89
3783 140TH AVE NW
857.07
1,054.20
3808 172ND AVE NW
46.81
57.58
CITY OF ANDOVER
2019 Delinquent Utility List
Pending Amount
to be Certified
Property Address
Amount
(including 23%)
3814174TH AVE NW
46.89
57.67
3815 157TH AVE NW
46.56
57.27
3815 174TH AVE NW
46.89
57.67
383 159TH AVE NW
10.98
13.51
3831140TH AVE NW
457.01
562.12
3844174TH AVE NW
33.72
41.48
3851178TH LN NW
21.59
26.56
387144TH AVE NW
333.44
410.13
3876 139TH LN NW
267.95
329.58
3890 S ENCHANTED DR NW
49.50
60.89
3896145TH AVE NW
616.76
758.61
3945 169TH LN NW
10.83
13.32
3948 145TH AVE NW
642.30
790.03
3949 ENCHANTED DR NW
21.59
26.56
3951145TH AVE NW
161.49
198.63
3962 ENCHANTED DR NW
46.89
57.67
3963 ENCHANTED DR NW
46.89
57.67
3968 ENCHANTED DR NW
46.89
57.67
3974 168TH AVE NW
66.78
82.14
399 144TH AVE NW
362.90
446.37
399 144TH AVE NW
248.26
305.36
4039 146TH LN NW
566.43
696.71
4040 S ENCHANTED DR NW
33.72
41.48
4045 165TH AVE NW
21.59
26.56
4075 146TH AVE NW
98.58
121.25
4075165TH AVE NW
44.24
54.42
4088146TH LN NW
685.94
843.71
4088 165TH AVE NW
44.96
55.30
411 144TH AVE NW
1,466.12
1,803.33
4122 145TH LN NW
331.50
407.75
4136146TH AVE NW
1,126.84
1,386.01
4138145TH AVE NW
77.34
95.13
4141 146TH AVE NW
380.76
468.33
4148 146TH AVE NW
588.79
724.21
4157 145TH AVE NW
646.55
795.26
4160146TH AVE NW
376.94
463.64
4180 165TH AVE NW
46.89
57.67
4187 161ST LN NW
72.83
89.58
4191152ND AVE NW
46.89
57.67
421 CONSTANCE BLVD NW
46.89
57.67
4224165TH AVE NW
21.76
26.76
425 ANDOVER BLVD NW
21.43
26.36
429144TH LN NW
678.14
834.11
4311144TH LN NW
36.09
44.39
434 155TH AVE NW
46.89
57.67
4359155TH AVE NW
46.89
57.67
4420147TH LN NW
46.89
57.67
4426 149TH LN NW
46.85
57.63
445 137TH LN NW
897.11
1,103.45
445 140TH AVE NW
779.54
958.83
4531147TH LN NW
46.16
56.78
4560147TH LN NW
44.88
55.20
458139TH LN NW
696.52
856.72
CITY OF ANDOVER
2019 Delinquent Utility List
Pending Amount
to be Certified
Property Address
Amount
(including 23%)
4613161ST LN NW
44.92
55.25
4630147TH LN NW
21.77
26.78
4680147TH LN NW
46.85
57.63
4726162ND LN NW
46.16
56.78
4726165TH AVE NW
46.89
57.67
4862 170TH AVE NW
21.78
26.79
487140TH LN NW
1,527.90
1,879.32
4893 171ST AVE NW
39.11
48.11
4930 MARYSTONE LN NW
46.85
57.63
4954170TH LN NW
74.89
92.11
501140TH LN NW
225.63
277.52
5315 167TH AVE NW
25.93
31.89
536 155TH AVE NW
46.89
57.67
543140TH AVE NW
969.80
1,192.85
545 CONSTANCE BLVD NW
38.79
47.71
577 158TH AVE NW
21.59
26.56
59 ANDOVER BLVD NW
11.77
14.48
600142ND AVE. NW
377.77
464.66
665 177TH AVE NW
46.87
57.65
67173RD LN NW
100.02
123.02
702 158TH AVE NW
867.43
1,066.94
721 141ST LN NW
293.19
360.62
732 142ND AVE NW
70.13
86.26
733 141ST LN NW
678.42
834.46
745140TH LN NW
46.89
57.67
766158TH AVE NW
1,055.06
1,297.72
769 141ST LN NW
561.41
690.53
770 141ST LN NW
245.88
302.43
826 141ST AVE NW
42.01
51.67
838 138TH AVE NW
992.72
1,221.05
847141ST AVE NW
679.55
835.85
861 CROSSTOWN BLVD NW
21.15
26.01
862 138TH AVE NW
798.21
981.80
886 166TH AVE NW
105.53
129.80
914142ND AVE NW
691.89
851.02
928 CROSSTOWN BLVD NW
33.68
41.43
934142ND AVE NW
1,138.77
1,400.69
956143RD AVE NW
1,140.17
1,402.41
268,903.50
330,751.31
1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755-5100
FAX (763) 755-8923 • WWW.ANDOVERMN.GOV
TO:
FROM:
SUBJECT:
DATE:
Mayor and Councilmembers
Jim Dickinson, City Administrator
Administrator's Report
November 6, 2019
The Department Heads present at the meeting will provide a brief verbal update on various items
of interest to the City Council and to the residents at the meeting. Listed below are a few areas of
interest:
1. City Department Activities
2. Update on Development/CIP Projects
3. Meeting reminders
Upon receipt of the meeting packet, if a member of the Council would like an update on a particular
item, please notify me so an adequate update can be made.
,d,