02-17-15 CC Agenda Packet AGENDA
Regular Meeting
of the
City Council
Golden Valley City Hall
7800 Golden Valley Road
Council Chamber
February 17, 2015
6:30 pm
The Council may consider item numbers 1, 2, 3, 5 and 6
prior to the public hearings scheduled at 7 pm
1. CALL TO ORDER PAGES
A. Roll Call
B. Pledge of Allegiance
C. Presentation of Minnesota Heart Safe Community Award 3
2. ADDITIONS AND CORRECTIONS TO AGENDA
3. CONSENT AGENDA
Approval of Consent Agenda - All items listed under this heading are considered to be
routine by the City Council and will be enacted by one motion. There will be no
discussion of these items unless a Council Member or citizen so requests in which
event the item will be removed from the general order of business and considered in its
normal sequence on the agenda.
A. Approval of Minutes
1. Council/Manager - January 13, 2015 4-7
2. City Council Meeting - February 3, 2015 8-10
3. Council Executive Session - February 3, 2015 11
B. Approval of City Check Register 12
C. Licenses:
1. Gambling License Exemption and Waiver of Notice Requirement - St. 13-15
Bartholomew Church
2. Gambling License Exemption and Waiver of Notice Requirement - Northwest 16-18
Suburban Optimist Club
3. Multi-Family Rental Property Licenses 19-21
4. Solicitor's License - Clear Water Action 22-24
D. Minutes of Boards and Commissions:
1. Planning Commission Minutes - January 26, 2015 25-30
2. Human Services Fund - November 10, 2014 31-32
3. Civil Service Commission - November 21, 2014 33
4. Teen Committee - October 27, 2014 34-35
5. Bassett Creek Watershed Management Commission - December 18, 2014 36-42
E. Bids and Quotes:
1. Award Contracts for 2015 Street Construction and Maintenance Materials 43-44
F. Authorize Agreement for Professional Services with Barr Engineering Company for 45-57
DeCola Ponds and Medicine Lake Road Area Flood Mitigation Preliminary Design
G. Petitioning the Surface Transportation Board to Require an Environmental Impact 58-62
Statement (EIS) for the Construction of a Railroad Connector Track in Crystal 15-13
H. Authorize Agreements with New Energy Equity, Sundial Solar, and Xcel Energy for 63-201
Installation of Solar Arrays on City Buildings
3. CONSENT AGENDA - CONTINUED
I. Authorize Agreement with SEH, Inc. for Final Design and Construction Observation 202-211
for Glenwood Avenue Sidewalk Extension Project
J. Approval of Plat - Paisley Lane Woods 15-14 212-214
K. Authorization to Submit Community Development Block Grant Application for Pesch
Place Rehabilitation Project - 2000 Mary Hills Drive 15-15 215-219
L. Approving Golden Valley Fire Relief Association By-Law Changes 15-16 220-225
M. Call for Three Public Hearings - Special Assessments for 2015, 2016 and 2017 226-228
Pavement Management Program
N. Modifying 2015 General Wages and Salary to Include Accounting Technician and 229-230
Lead Community Service Officer (CSO) Positions 15-17
O. Approval of Requests for Beer and/or Wine Brookview Park 231-232
4. PUBLIC HEARINGS 7 PM
A. Public Hearing - Ordinance #542 - Removing Special Restrictions - 6000 Duluth Street 233-262
- King of Grace Lutheran Church and School, Applicant
5. OLD BUSINESS
6. NEW BUSINESS
A. First Consideration - Ordinance #543 - Adoption of 2014 National Electrical Code 263-265
and 2015 State Building Code
B. METRO Blue Line Extension Update 266-272
C. Announcements of Meetings
D. Mayor and Council Communications
7. ADJOURNMENT
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valley
Fire Department
763-593-80791763-593-8098(fax)
Executive Summary For Action
Golden Valley City Council Meeting
February 17, 2015
Agenda Item
1. C. Presentation of Minnesota Heart Safe Community Award
Prepared By
John Crelly, Fire Chief
Summary
On November 5, 2014, the City of Golden Valley was officially designated as a "Minnesota Heart
Safe Community". Each year 425,000 people suffer from Sudden Cardiac Arrest, over the past
two years the Fire Department has made it a priority to educate those who live, work and play in
the City on how to do Hands Only CPR and how to use an Automatic External Defibrillator (AED).
Over 2,100 people have been trained and local companies have stepped up in the effort to
provide the training for their people and have purchased AEDs. Grants and donations have been
received to help us purchase AEDs for emergency response and for public access in our city
buildings along with training AEDs and mannequins.
Council/Manager Meeting Minutes
January 13, 2015
Present: Mayor Harris and Council Members, Clausen, Fonnest, Schmidgall and Snope,
City Manager Tom Burt, Finance Director Sue Virnig, Director of Parks and Recreation
Rick Birno, Assistant City Manager Chantell Knauss, Maintenance Manager Bert Tracy,
City Engineer Jeff Oliver, Physical Development Director Marc Nevinski and
Administrative Assistant Judy Nally.
The meeting began at 6:45 pm in the Council Conference Room.
The following item was added to the agenda: City Council Meeting Guests, Presentations
and Recognitions.
Sochacki Park/Mary Hills Nature Area/Rice Lake Nature Area Project Update
Three Rivers Park District Associate Superintendent Jonathan Vlaming were present to
review plans to combine two nature areas in Golden Valley and one park in Robbinsdale
into one pocket regional park. Vlaming gave a PowerPoint presentation which included the
intent of the partnership, vision, three areas of focus, programming, capital improvements
and natural resource, 3 year Capital Improvements Program (CIP) timing and activities,
development of future CIP, review preliminary site map and neighborhood meeting
discussions.
Staff from Three Rivers, Golden Valley and Robbinsdale will meet to discuss operations
and maintenance issues. Three Rivers will prepare a draft Joint Powers Agreement. As
part of the agreement there will be a six person governance policy board comprised of the
Mayor and City Manager and the Three Rivers District Chair and the Commissioner who
represents the area. The agreement is expected to be brought back to the Council for
consideration at a future City Council meeting.
Sochacki Park in Robbinsdale is dedicated to Walter Sochacki and is not allowed to be
deeded to any other entity or change its name. The Council had no objections to using the
name Sochacki Park as the name for the combined park/nature area.
After discussion the Council consensus was to keep the park a natural area and use the
proposed 3 year CIP as a guide for the park, but also include language in the Joint Power
Agreement for possible expansion of programs and amenities in the future.
Pathway to Play at Schaper Park
Rick Birno and Three Rivers Park District Associate Superintendent Jonathan Vlaming
reviewed plans to incorporate a Pathway to Play trail/amenities at Schaper Park. The
proposed plan was to connect the area to the Luce Line trail. While researching the park
area it was discovered that the City and Three Rivers did not own the land west of
Schaper Pond and there are steep slopes and water issues that are not conducive to
placing the trail and play pods at this location. Golden Valley and Three Rivers will
research other possible locations for the project and report back to the Council at a future
meeting.
Council/Manager Meeting Minutes
January 13, 2015 — Page 2
Human Rights Commission 2014 Annual Report and 2015 Work Plan
Teresa Martin, Human Rights Commission (HRC) Chair, reviewed the 2014 Annual
Report, highlighting events held during the year including: HRC Conversations, Martin
Luther King Jr. Day and Children and Adults and Mental Illness; League of Women Voters
Talking About the Constitution event and September 11 Day of Service and
Remembrance events. Martin and Carla Johnson, Vice Chair, reviewed the 2015 Work
Plan highlighting proposed events including: Genocide Awareness program with Crystal,
New Hope and Robbinsdale HRCs; HRC Conversations Series on Human Sex Trafficking;
September 11 Day of Service and Remembrance. The HRC is also planning ahead for
2016 events. The HRC will reach out to the Teen Committee and would like to invite the
Police Department to attend a meeting. The Council thanked the Commission for their
work.
Asset and Infrastructure Evaluation and Set Strategic Planning Meeting Dates
Tom Burt reviewed the Asset and Infrastructure Evaluation PowerPoint presentation which
highlighted what makes a community livable, what is infrastructure, how do we maintain
this quality of life, what does the future look like, how to balance the quality of life with
infrastructure and operations, city assets and infrastructure for vehicles and equipment,
parks, Brookview Golf Course, buildings, storm sewers, water and sanity sewer and
streets, watermain break data, life cycle costs and debt levies. He also reviewed some of
the upcoming financial and infrastructure issues that have, and will continue to have, an
effect on the City in the future such as: future equipment, Pavement Management
Program, community center replacement, debt and estimated tax impact, and Douglas
Drive improvements. The Council also watched the Liquid Assets Minnesota video.
Each Council Member set a date to meet individually with the facilitator. The Council set
February 5, 2015, at 6:30 pm for Team Building. The Council set the following meeting
dates: Strategic Planning (Environmental Scan) for February 23, 2015 at 6:30 pm; and
Strategic Planning for March 12, 2015 at 6:30 pm and March 14, 2015 at 9 am.
2015 Government Affairs Priorities
Shep Harris and Andy Snope reviewed the 2014 Legislative Policies and reviewed the
proposed 2015 priorities. The Council discussed the policies and requested the following
be considered as 2015 priorities: public safety improvements at the Douglas Drive -
Highway 55 Intersection, Joint Water Commission infrastructure improvement funds,
DeCola Ponds area flood mitigation funds, Golden Valley community center capital
improvement funds, METRO Blue Line Extension funds, Metropolitan Council
inflow/infiltration grants - public and private improvements, opposition of levy limits,
inclusion of motor vehicles for city sales tax exemption, improvement of local government
public information notification procedures, Emerald Ash Borer disaster assistance, support
early voting initiatives, support tax incentives for community reinvestment and update
fiscal disparities formula.
Council/Manager Meeting Minutes
January 13, 2015 — Page 3
Staff was directed to contact the Cities of Crystal and Robbinsdale regarding the Joint
Water Commission infrastructure improvement funds priority prior to the Legislative
Breakfast which will be held on January 24, 2015. The 2015 Government Affairs Priorities
will be approved at the January 20, 2015 City Council Meeting.
Council Communications: Open Forum, Consent Agenda and Receive and File
Correspondence, City Council Guests and Presentations
Open Forum: Burt reviewed the history of televising Open Forum. After discussion by the
Council it was the consensus the Open Forum would continue to not be televised,
residents will be given the opportunity to present their issues but the Council will refrain
from any immediate interaction or problem solving. Depending upon the item brought
forward, the Council may request staff review the item and bring it back to a
Council/Manager meeting. If the item can be clarified at the meeting staff can provide the
resident with the information they request one on one.
Consent Agenda: The Council discussed various options for consideration of items that are
removed from the consent agenda. The Council consensus was to determine if an item is
removed to ask a question or make a statement. The Council will consider items removed
on a case-by-case basis. Council or staff will answer any questions; Council will deliberate
the issue and make a decision. If an item is removed more than one person will be allowed
to speak on an issue. If needed, the Council may request the item be placed on a future
Council/Manager meeting or City Council meeting for discussion and/or action.
Receive and File Correspondence: Burt reviewed the history of correspondence received
and stated in the past the Council would get letters that were sometimes received and
filed. Now emails are sent directly to Council but sometimes not received by staff. Staff is
requesting that if the Council wants a letter to be placed on the agenda they should
forward it to staff. Staff will place any letters and/or emails on the agenda when the item is
considered. For example, any correspondence received regarding the METRO Blue Line
will now be placed on the agenda on the second meeting of the month when the METRO
Blue Line Update is on the agenda. Any editorials received will not be placed on the
agenda and residents will be encouraged to attend the Open Forum if they have an issue
they would like to discuss.
City Council Meeting Guests, Presentations and Recognitions: The Council discussed the
Call to Order section of the City Council Agenda. That portion of the meeting is reserved
for presentations/recognitions. The Council discussed inviting residents, guests and/or
organizations to lead the Council in the Pledge of Allegiance; presentations and updates
by staff, other organizations and/or other governmental agencies; recognitions of
organizations and individuals. After discussion by the Council, it was the consensus that
any presentations and/or recognitions are to be placed on the agenda; no
guests/organizations will be invited to recite the Pledge of Allegiance; and only one
presentation/recognition will be placed on an agenda within a 10-minute limit.
Council/Manager Meeting Minutes
January 13, 2015 — Page 4
Council Assignments and Meeting Reimbursements
The Council discussed their preferred assignments to various boards, commissions and
committees. They directed staff to remove the Envision Connection Project Board of
Directors and add the Mayor as a representative to the Golden Valley Business Council.
The Council made no amendments to the additional meeting reimbursement list. These
items will be placed on a future City Council agenda for consideration.
Set Neighborhood Meeting Dates and Locations
The Council discussed if they wanted to continue to have Neighborhood Meetings. Due to
a lack of attendance the Council consensus was to not set specific Neighborhood Meeting
dates. If the Council as a whole feels a Neighborhood Meeting should be held, they will
determine the need on a case-by-case basis. If any meetings are held they will be posted,
held in a public building/facility and be accessible by all. The Council did agree that any
Council Member could meet with neighborhoods at individual homes but the meeting
would not be publicized on the website and no staff support will be provided. The
Neighborhood Meeting scheduled for January 29, 2015 was cancelled.
The meeting adjourned at 10:55 pm.
Judy Nally
Administrative Assistant
c x alt#, x. UNOFFICIAL MINUTES
i-T01 CITY COUNCIL MEETING
ir
GOLDEN VALLEY, MINNESOTA
all February 3, 2015
1. CALL TO ORDER
Mayor Pro Tem Snope called the meeting to order at 6:30 pm.
1A. Roll Call
Present: Mayor Pro Tem Snope, Council Members Clausen, Schmidgall, and Fonnest.
Mayor Harris arrived at 6:37 pm.
1B. Pledge of Allegiance
2. ADDITIONS AND CORRECTIONS TO AGENDA
MOTION made by Council Member Clausen, seconded by Council Member Fonnest to
approve the agenda of February 3, 2015, as revised: addition of 6A-West Broadway Transit
Study Planning Advisory Committee Nomination and the motion carried unanimously.
3. APPROVAL OF CONSENT AGENDA
MOTION made by Council Member Schmidgall, seconded by Council Member Clausen to
approve the consent agenda of February 3, 2015, as submitted and the motion carried
unanimously.
3A. Approve Minutes of City Council Meeting - January 20, 2015
3131. Approve City check register and authorize the payments of the bills as submitted.
3132. Approve Housing and Redevelopment Authority check register and authorize the
payments of the bills as submitted.
3C1. Approve solicitor's license for TakeAction Minnesota.
3C2. Approve solicitor's license for The Window Store.
3D. Accept for filing the Minutes of Boards and Commissions as follows:
1. Planning Commission - December 22, 2014
2. Board of Zoning Appeals - November 25, 2014
3. Human Rights Commission - December 18, 2014
4. Teen Committee - September 22, 2014
5. Joint City Council and Planning Commission - January 12, 2015
6. Environmental Commission - November 24, 2014
3E1. Approve purchase of one Toro 5910D Groundsmaster from MTI Distributing in the
amount of $95,641.21.
3E2. Approve the purchase of 5600 G-Series Bobcat Toolcat from Tri-State Bobcat, Inc. for
the total amount of$26,000 after trade-in.
3E3. 1. Motion to approve purchase of three Ford trucks from Midway Ford Commercial
Fleet and Government Sales for total purchase price of $82,971.
2. Motion to approve purchase of Reading Aluminum Utility truck bodies' plows and
accessories from Aspen Equipment for the total purchase price of $34,368.
3F. Adopt Resolution 15-11 authorizing submission of a request for matching funds
through the Hennepin County Economic Development Initiative and authorizing
entering into an agreement with the Metropolitan Consortium of Community
Developers for the Open To Business Initiative.
3G. Adopt Resolution 15-12 establishing limited clean up and property damage protection
for sewer back-ups and water main breaks for water and sewer customers.
Unofficial City Council Minutes -2- February 3, 2015
6. NEW BUSINESS
6A. West Broadway Transit Study Planning Advisory Committee Nomination
City Manager Burt and Physical Development Director Nevinski answered questions from
Council.
MOTION made by Council Member Snope, seconded by Council Member Clausen to
nominate Council Member Fonnest as the representative to the West Broadway Transit
Study Planning Advisory Committee and the motion carried unanimously.
MOTION made by Council Member Fonnest, seconded by Mayor Harris to nominate Council
Member Clausen as the alternate representative to the West Broadway Transit Study
Planning Advisory Committee and the motion carried unanimously.
6113. Announcements of Meetings
A Closed Executive Session of the Council regarding: Safety Issues, will immediately follow
inthe Manager's Conference room.
A Bottineau Planning Advisory Committee meeting will be held on February 5, 2015, at 6 pm
in the Council Chambers.
The City Council Strategic Planning Retreat will be held on February 5, 2015, at 7 pm in the
Council Conference Room.
Some Council Members may attend the Calvary Lutheran Church "Sweet Potato Pie
Reflections" event on February 8, 2015, from 2 to 4 pm.
Some Council Members may attend the New Hope City Council meeting on February 9,
2015, at 7 pm.
A Joint Meeting of the City Council/Planning Commission will be held on February 9, 2015,
immediately following the Planning Commission meeting in the Council Conference Room.
The next Council/Manager Meeting will be held on February 10, 2015, at 6:30 pm.
Some Council Members may attend "Make it OK to Talk about Mental Illness" on February
11, 2015, at 6:30 pm at North Hennepin Community College.
Some Council Members may attend the Golden Valley Historical Society Event: Minnesota
area 1930s depression-era projects on February 12, 2015, at 7 pm at the Historical Society.
The City Offices will be closed on February 16, 2015, in observance of President's Day.
The next City Council meeting will be held on February 17, 2015, at 6:30 pm.
Some Council Members may attend the Seven Dreams Education Foundation Bird Bash
fundraiser on February 21, 2015, starting at 5 pm at the Minneapolis Marriott Northwest.
Unofficial City Council Minutes -3- February 3, 2015
6C. Mayor and Council Communication
City Manager Burt reviewed the agenda for the February 9, 2015, Council/Manager meeting.
Council Member Clausen stated Northwest Suburbs Cable Communications Commissioner
Joan Russell has submitted her resignation and a new representative would need to be
appointed. Council will discuss the process for appointment at the next Council/Manager
meeting. Council thanked Ms. Russell for her past service on the Commission.
Council discussed directing the Planning Commission to study the current zoning of the
western part of the City along Golden Valley Road.
Council reminded residents of the winter parking ordinance and stated that due to the recent
snow, the snow plows would be out clearing the roads.
7. Adjournment
MOTION made by Mayor Harris, seconded by Council Member Clausen, and the motion
carried unanimously to adjourn the meeting at 6:55 pm.
Shepard Harris, Mayor
ATTEST:
Kristine A. Luedke, City Clerk
rite UNOFFICIAL MINUTES
go ell,,
'valleyCLOSED EXECUTIVE SESSION OF COUNCIL
GOLDEN VALLEY, MINNESOTA
February 3, 2015
The meeting began at 7:00 pm.
The following members were present: Mayor Harris, Council Members Clausen, Fonnest,
Schmidgall and Snope. Also present were: Thomas Burt, City Manager; Marc Nevinski,
Physical Development Director; Allen Barnard, City Attorney; and Kris Luedke, City Clerk.
1A. Chief Carlson reviewed safety procedures during Council meetings.
The meeting was adjourned at 7:40 pm.
Shepard M. Harris, Mayor
ATTEST:
Kristine A. Luedke, City Clerk
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763-593-80131763-593-8109(fax)
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Executive Summary For Action
Golden Valley City Council Meeting
February 17, 2015
Agenda Item
3. B. Approval of City Check Register
Prepared By
Sue Virnig, Finance Director
Summary
Approval of the check register for various vendor claims against the City of Golden Valley.
Attachments
• Document sent via email
Recommended Action
Motion to authorize the payment of the bills as submitted.
Cit of gG I,
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City Administration/Council
763-593-3991 /763-593-8109(fax)
Executive Summary For Action
Golden Valley City Council Meeting
February 17, 2015
Agenda Item
3. C. 1. Gambling License Exemption and Waiver of Notice Requirement - St. Bartholomew Church
Prepared By
Judy Nally, Administrative Assistant
Summary
As per State Statute organizations that conduct gambling within the City limits have to submit an
application for a lawful gambling permit to the State after the permit has been approved or
denied by the City. Depending upon the timing of the permit the applicants may request the City
to waive the 30-day waiting period.
Attachments
• Application for Exempt Permit (2 pages)
Recommended Action
Motion to receive and file the gambling license exemption and approve the waiver of notice
requirement for St. Bartholomew Church.
MINNESOTA LAWFUL GAMBLING 8/14
LG220 Application for Exempt Permit Page 1 of
An exempt permit may be issued to a nonprofit organization that: Application fee (nonrefundable)
• conducts lawful gambling on five or fewer days,and If the application is postmarked or received
• awards less than$50,000 in prizes during a calendar year. 30 days or more before the event,the application
If total prize value for the year will be$1,500 or less,contact the Licensing fee is$50; otherwise the fee is$100.
Specialist assigned to your county.
Organization Information
Organization Name: Previous Gambling Permit Number:
St. Bartholomew Church X-27273
Minnesota Tax ID Number, if any: Federal Employer ID Number(FEIN), if any:
9017486 41-0711478
Type of Nonprofit Organization (check one):
aFraternal a Religious Veterans =Other Nonprofit Organization
Mailing Address: City: State and Zip: County:
630 E Wayzata Blvd Wa zata 55391 Henn
Name of Chief Executive Officer(CEO): Daytime Phone: Email:
Fr. Michael A Van Sloun 952-473-6601 mvan o n s -b r
Nonprofit Status
Attach a copy of ONE of the following for proof of nonprofit status:
Nonprofit Articles of Incorporation OR a current Certificate of Good Standing.
Don't have a copy? This certificate must be obtained each year from:
Minnesota Secretary of State
Business Services Division
60 Empire Drive, Suite 100
St. Paul, MN 55103
Phone: 651-296-2803
IRS income tax exemption (SO1(c)) letter in your organization's name.
Don't have a copy? To obtain a copy of your federal income tax exempt letter, have an organization officer contact
the IRS at 877-829-5500.
IRS-Affiliate of national,statewide,or international parent nonprofit organization (charter).
If your organization falls under a parent organization, attach copies of both of the following:
a. an IRS letter showing your parent organization is a nonprofit 501(c) organization with a group ruling, and
b. the charter or letter from your parent organization recognizing your organization as a subordinate.
Gambling Premises Information
Name of premises where the gambling event will be conducted (for raffles, list the site where the drawing will take place):
Golden Valley Country Club
Address (do not use PO box): City or Township: Zip Code: County:
7001 Golden Valley Road Golden Valley 55427 Henn
Date(s) of activity (for raffles, indicate the date of the drawing):
A ril 25 2015
Check each type of gambling activity that your organization will conduct:
Bingo* =Paddlewheels* =Pull-Tabs* =Tipboards*
✓ Raffle (total value of raffle prizes awarded for the year:
*Gambling equipment for bingo paper, paddlewheels, pull-tabs, and tipboards must be obtained from a distributor
licensed by the Minnesota Gambling Control Board. EXCEPTION: Bingo hard cards and bingo number selection devices may
be borrowed from another organization authorized to conduct bingo.
To find a licensed distributor, go to www.mn.gov/gcb and click on Distributors under the LIST OF LICENSEES,
or call 651-539-1900.
LG220 Application for Exempt Permit 8/14
Page 2 of 2
Local Unit of Government Acknowledgment
CITY APPROVAL COUNTY APPROVAL
for a gambling premises for a gambling premises
located within city limits located in a township
The application is acknowledged with no waiting period. he application is acknowledged with no waiting period.
The application is acknowledged with a 30-day waiting he application is acknowledged with a 30-day waiting
period,and allows the Board to issue a permit after 30 days period,and allows the Board to issue a permit after
(60 days for a 1st class city). 30 days.
❑The application15 denied. (�/�/J he application is denied.
Print City Name: o/�t ej V Gt!l�'' Print County Name:
Sig of Ci P7sonel, Signature of County Personnel:
Title:UoAne A�f Date: Title: Date:
TOWNSHIP(if required by the county).
On behalf of the township, I acknowledge that the organization
is applying for exempted gambling activity within the township
limits. (A township has no statutory authority to approve or
Local unit of government must sign. deny an application, per Minn. Statutes, section 349.166.)
Print Township Name:
Signature of Township Officer:
Title: Date:
Chief Executive Officer's Signature
The information provided in this application is complete and accurate to the best of my knowledge. I acknowledge that the financial
report will be completed and returned to�{the
f Board
/Qwithin 30 da s of the event date.
Chief Executive Officer's Signature: "`�K'gye U. V t UG1 Date: 'r V
Print Name: Michael A Van Sloun
Requirements
Complete a separate application for: Financial report and recordkeeping required.
• all gambling conducted on two or more consecutive days,or A financial report form and instructions will be sent with your
• all gambling conducted on one day. permit,or use the online fill-in form available at
Only one application is required if one or more raffle drawings are www.mn.gov/gcb.
conducted on the same day.
Within 30 days of the event date,complete and return the
Send application with: financial report form to the Gambling Control Board. Your
a copy of your proof of nonprofit status,and organization must keep all exempt raffle records and reports for
application fee(nonrefundable). If the application is 3-1/2 years(Minn. Statutes,section 349.166,subd. 2(f)).
postmarked or received 30 days or more before the event,
the application fee is$50; otherwise the fee is$100. Make Questions?
check payable to State of Minnesota. Call the Licensing Section of the Gambling Control Board at
651-539-1900.
To: Gambling Control Board This form will be made available in alternative format(i.e. large
1711 West County Road B, Suite 300 South print, Braille) upon request.
Roseville, MN 55113
Data privacy notice: The information requested application. Your organization's name and ment of Public Safety;Attorney General;
on this form(and any attachments)will be used address will be public information when received Commissioners of Administration,Minnesota
by the Gambling Control Board(Board)to by the Board. All other information provided will Management&Budget,and Revenue;Legislative
determine your organization's qualifications to be private data about your organization until the Auditor,national and international gambling
be involved in lawful gambling activities in Board issues the permit. When the Board issues regulatory agencies;anyone pursuant to court
Minnesota. Your organization has the right to the permit,all information provided will become order;other individuals and agencies specifically
refuse to supply the information; however,if public. If the Board does not issue a permit,all authorized by state or federal law to have access
your organization refuses to supply this information provided remains private,with the to the information; individuals and agencies for
information,the Board may not be able to exception of your organization's name and which law or legal order authorizes a new use or
determine your organization's qualifications and, address which will remain public. Private data sharing of information after this notice was
as a consequence,may refuse to issue a permit. about your organization are available to Board given;and anyone with your written consent.
If your organization supplies the information members,Board staff whose work requires
requested,the Board will be able to process the access to the information; Minnesota's Depart-
c y oc ,n
M "E
alley City Administration/Council
763-593-3991 !763-593-8109(fax)
Executive Summary For Action
Golden Valley City Council Meeting
February 17, 2015
Agenda Item
3. C. 2. Gambling License Exemption and Waiver of Notice Requirement - Northwest Suburban
Optimist Club
Prepared By
Judy Nally, Administrative Assistant
Summary
As per State Statute organizations that conduct gambling within the City limits have to submit an
application for a lawful gambling permit to the State after the permit has been approved or
denied by the City. Depending upon the timing of the permit the applicants may request the City
to waive the 30-day waiting period.
Attachments
• Application for Exempt Permit (2 pages)
Recommended Action
Motion to receive and file the gambling license exemption and approve the waiver of notice
requirement for Northwest Suburban Optimist Club.
MINNESOTA LAWFUL GAMBLING 8/14
LG220 Application for Exempt Permit Page 1 of 2
An exempt permit may be issued to a nonprofit organization that: Application fee (nonrefundable)
• conducts lawful gambling on five or fewer days,and If thea application is
• awards less than$50,000 in prizes during a calendar year. PP postmarked received
30 days or more before the event,
the application
If total prize value for the year will be$1,500 or less, contact the licensing fee is$50; otherwise the fee is$100.
Specialist assigned to your county.
Organization Information
Organization Name: Previous Gambling Permit Number:
NORTHWEST SUBURBAN OPTIMIST CLUB x-04230-14-006
Minnesota Tax ID Number, if any: Federal Employer ID Number(FEIN),if any:
41-6037553
Type of Nonprofit Organization (check one):
Fraternal a Religious Veterans Mother Nonprofit Organization
Mailing Address: City: State and Zip: County:
7001 Golden Valley Rd Golden Valley MN 55427 Hennepin
Name of Chief Executive Officer(CEO): Daytime Phone: Email:
Harold Hill 763-546-9117 HalphillQemael.com
Nonprofit Status
Attach a copy of ONE of the following for proof of nonprofit status:
Nonprofit Articles of Incorporation OR a current Certificate of Good Standing.
Don't have a copy? This certificate must be obtained each year from:
Minnesota Secretary of State
Business Services Division
60 Empire Drive,Suite 100
St. Paul, MN 55103
Phone: 651-296-2803
IRS income tax exemption (501(c)) letter in your organization's name.
Don't have a copy? To obtain a copy of your federal income tax exempt letter,have an organization officer contact:
the IRS at 877-829-5500.
IRS-Affiliate of national, statewide,or international parent nonprofit organization (charter).
If your organization falls under a parent organization,attach copies of both of the following:
a. an IRS letter showing your parent organization is a nonprofit 501(c)organization with a group ruling,and
b. the charter or letter from your parent organization recognizing your organization as a subordinate.
Gambling Premises Information
Name of premises where the gambling event will be conduced (for raffles, list the site where the drawing will take place):
Golden Valley Golf& Country Club
Address (do not use PO box): City or Township: Zip Code: County:
7001 Gold-en Valley Rd Golden II 55427 Hennepin
Date(s) of activity (for raffles, indicate the date of the drawing):
May 14 2015
Check each type of gambling activity that your organization will conduct:
Bingo* =Paddlewheels* Pull-Tabs* =Tipboards*
10 Raffle (total value of raffle prizes awarded for the year: $1,750.00
)
*Gambling equipment for bingo paper,paddlewheels, pull-tabs, and tipboards must be obtained from a distributor
licensed by the Minnesota Gambling Control Board. EXCEPTION: Bingo hard cards and bingo number selection devices may
be borrowed from another organization authorized to conduct bingo..
To find a licensed distributor, go to www.mn.gov/gcb and dick on Distributors under the LIST OF LICENSEES,
or call 651-539-1900.
LG220 Application for Exempt Permit 8/14
Page 2 of 2
Local Unit of Government Acknowledgment
CITY APPROVAL COUNTY APPROVAL
for a gambling premises for a gambling premises
located within city limits located in a township
K(60
he application is acknowledged with no waiting period. he application is acknowledged with no waiting period.
he application is acknowledged with a 30-day waiting he application is acknowledged with a 30-day waiting
eriod, and allows the Board to issue a permit after 30 days period, and allows the Board to issue a permit after
days for a 1st class city). 30 days.
❑The applicationis denied. r e application is denied.
Print CityName: ae ld n ��`��7
Print County Name:
Si att,re of Qty %nl Signature of County Personnel:
Title: Date: �� I Title: Date:
TOWNSHIP(if required by the county).
On behalf of the township, I acknowledge that the organization
is applying for exempted gambling activity within the township
limits. (A township has no statutory authority to approve or
deny an application, per Minn.Statutes, section 349.166.)
Local unit of government must sign.
Print Township Name:
Signature of Township Officer:
Title: Date:
Chief Executive Officer's Signature
The information provided in this application is complete and accurate to the best of my knowledge. I acknowledge that the financial
report will be completed and returned to the Board within 30 days of the/event date.
t lelL" -�
Chief Executive Officer's Signature: Date:
Print Name:_ Harold Hill
Requirements
Complete a separate application for: Financial report and recordkeeping required.
+ all gambling conducted on two or more consecutive days, or A financial report form and instructions will be sent with your
• all gambling conducted on one day. permit,or use the online fill-in form available at
Only one application is required if one or more raffle drawings are www.mn.gov/gcb.
conducted on the same day.
Send application with: Within 30 days of the event date, complete and return the
financial report form to the Gambling Control Board. Your
acopy of your proof of nonprofit status, and organization must keep all exempt raffle records and reports for
application fee(nonrefundable). If the application is 3-1/2 years(Minn. Statutes, section 349.166, subd. 2(f)).
postmarked or received 30 days or more before the event,
the application fee is$50;otherwise the fee is$100. Make Questions7
check payable to State of Minnesota. Call the Licensing Section of the Gambling Control Board at
To: Gambling Control Board 651-539-1900.
1711 West County Road B, Suite 300 South This form will be made available in alternative format(i.e. large
Roseville, MN 55113 print, Braille) upon request.
Data privacy notice: The information requested application. Your organization's name and ment of Public Safety;Attorney General;
on this form(and any attachments)will be used address will be public information when received Commissioners of Administration, Minnesota
by the Gambling Control Board(Board)to by the Board. All other information provided will Management&Budget,and Revenue; Legislative
determine your organization's qualifications to be private data about your organization until the Auditor,national and international gambling
be involved in lawful gambling activities in Board issues the permit. When the Board issues regulatory agencies;anyone pursuant to court
Minnesota. Your organization has the right to the permit,all information provided will become order; other individuals and agencies specifically
refuse to supply the information; however, if public. If the Board does not issue a permit,all authorized by state or federal law to have access
your organization refuses to supply this information provided remains private,with the to the information; individuals and agencies for
information,the Board may not be able to exception of your organization's name and which law or legal order authorizes a new use or
determine your organization's qualifications and, address which will remain public. Private data sharing of information after this notice was
as a consequence, may refuse to issue a permit. about your organization are available to Board given; and anyone with your written consent.
If your organization supplies the information members, Board staff whose work requires
requested,the Board will be able to process the access to the information; Minnesota's Depart-
CIen M
MEMORANDUM
valley n
Fire Department
763-593-8079/763-593-8098(fax)
Executive Summary For Action
Golden Valley City Council Meeting
February 17, 2015
Agenda Item
3. C. 3. Multi-Family Rental Property Licenses
Prepared By
Dave Gustafson, Fire/Property Maintenance Specialist
Jill Lund, Administrative Assistant
Summary
As per City Code, some businesses are required to be licensed by the City. Listed below are the
complex name, address and fees of those who have submitted an application for approval for
multiple family rental licenses.
CALVARY CENTER APARTMENTS - 7650 Golden Valley Road
Base building fee $ 175
STAR Status Level 4 0
Total License Fee $ 175
COLONIAL APARTMENTS - 5743/5745/5747 Glenwood Avenue
Base building fee $ 375
STAR Status Level 2 360
Total License Fee $ 735
COPACABANA APARTMENTS - 1725 Lilac Drive North
Base building fee $ 125
STAR Status Level 1 588
Total License Fee $ 713
GOLDEN VALLEY ARMS APARTMENTS - 6150 St. Croix Avenue
Base building fee $ 175
STAR Status Level 2 510
Total License Fee $ 685
GOLDEN VALLEY ROAD APARTMENTS - 6200 Golden Valley Road
Base building fee $ 125
STAR Status Level 0 630
Total License Fee $ 755
MAYFAIR APARTMENTS- 5307/5311 Circle Down
Base building fee $ 250
STAR Status Level 0 720
Total License Fee $ 970
STONEHAVEN HOMES - 1400/145011500/1600 Douglas Drive
Base building fee $ 500
STAR Status Level 3 342
Total License Fee $ 842
TRENTWOOD APARTMENTS - 9110/9140/9200/9210/9240 Golden Valley Road
Base building fee $ 625
STAR Status Level 0 $ 1,620
Total License Fee $ 2,245
VALLEY CREEK WEST APARTMENTS- 1370 Douglas Drive
Base building fee $ 125
STAR Status Level 4 $
Total License Fee $ 125
VALLEY VIEW APARTMENTS - 6533/6535/6537/6539/6541/6543 Golden Valley Road
Base building fee $ 750
STAR Status Level 4 0
Total License Fee $ 750
VALLEY VILLAGE APARTMENTS - 600 Lilac Drive North.
Base building fee $ 750
STAR Status Level 1 $ 1,344
Total License Fee $ 2,094
WEST END APARTMENTS - 241/251/261/271 Yosemite Circle
Base building fee $ 500
STAR Status Level 3 474
Total License Fee $ 974
Recommended Action
Motion to authorize the issuance of license as recommended by staff.
c. o µ
r4
.. x %. n
alleyCity Administration/Council
763-593-3991 /763-593-8109(fax)
Executive Summary For Action
Golden Valley City Council Meeting
February 17, 2015
Agenda Item
3. C. 4. Solicitor's License - Clear Water Action
Prepared By
Judy Nally, Administrative Assistant
Summary
As per City Code, any individual or group intending to go door-to-door within the City selling
products, taking orders or soliciting for business or donations must be licensed by the City to do
SO.
Attachments
• Peddler/Solicitor License Application (2 pages)
Recommended Action
Motion to approve the solicitor's license for Clear Water Action.
Application and fee must be submitted to the City Manager's Office the Wednesday prior to
the City Council Meeting. Council Meetings are normally held the first and third Tuesday of
each month.
PEDDLER/SOLICITOR LICENSE APPLICATION
TO: Golden Valley City Council Fee Paid: $ 'L/
7800 Golden Valley Road Number of Persons:
Golden Valley, MN 55427 Type of License: Peddler olicitor
(circle one
Enclose the sum of$ �0,()L) for (number) peddlers/solicitors as required by
City Code of the City of Golden Valley and have complied with all the requirements of said
Code necessary for obtaining this license.
G1te , W"4, A: �
(Business or Individual Name or Organization to be Licensed)
MN Business ID Federal Business ID (FEIN)
Define Business
(Corporation, Proprietorship, artnership, Non-Profit, State of Incorporation or Individual)
330
(Address)
City, State arfd Zip Code)
(Telephone Number, including Area Code)
NOW, THEREFORE, KOS`C.\ 6,1 k hereby makes application for
2 (Applicant Name)
period of ��� �� through 12/31/ '5 ,
City Code. subject to the conditions and provisions of said
(Signature of Ap licant/Principal Officer)
Description of goods or services for sale (include prices) or indicate if soliciting donations.
If more space is needed, attach additional sheets (be specific):
NOTE: If the products for sale are changed or modified, you must give the City complete
information regarding such change or modification.
List the names and addresses of EACH person who will be peddling or soliciting on behalf
of said organization in the City, or, in the alternative, the name, address and telephone
number or numbers where a responsible person of said organization will maintain a list of
names and addresses of all persons engaged in peddling or soliciting in the City:
I I k.& K-asL4'eL k �(2 - G?,-7 - 15-08
(If more space is needed, attach additional sheets)
STATE OF tY)IN
COUNTY OF k N WIN)) ss.
I, i► "1 I G ��5ra 0-<- of Du".' LA/h4-"r :f10✓1
(Officer/Individual) (Name of Organization)
being first duly sworn, depose and say that all the foregoing information is true to his/her
own knowledge except as to matters therein stated on information and belief, and as to
such matters, he/she believes them to be true.
ignature of Applicant/Principal Officer)
Subscribed and sworn to before me this
rf day of f= -� , 201�
A-6k, 0 . 1�
(Signature)
M �
JUDITH A. NALLY
NOTARY PUBLIC-MINNESOTA
y, My Commission Expires
January 31,2020
X
Regular Meeting of the
Golden Valley Planning Commission
January 26, 2015
A regular meeting of the Planning Commission was held at the Golden Valley City Hall,
Council Chambers, 7800 Golden Valley Road, Golden Valley, Minnesota, on Monday,
January 26, 2015. Vice Chair Cera called the meeting to order at 7 pm.
Those present were Planning Commissioners Baker, Blum, Cera, Johnson, Segelbaum,
and Waldhauser. Also present was Planning Manager Jason Zimmerman, and
Administrative Assistant Lisa Wittman. Chair Kluchka was absent.
1. Approval of Minutes
December 22, 2014, Regular Planning Commission Meeting
Baker referred to the last paragraph on page 7 and said the word "this" should be changed
to the word "thinks."
Waldhauser referred to the sixth paragraph on page 5 and said the word "conscience"
should be changed to the word "conscious."
Waldhauser referred to the Laurel Ponds PUD public hearing. She said that the discussion
regarding fences was to preclude them along the property lines, but to allow them around
patios. However, the condition in the recommendation said fences are prohibited.
Zimmerman clarified that fences would be prohibited, but that privacy screening around
patios would be permitted.
MOVED by Baker, seconded by Johnson and motion carried unanimously to approve the
December 22, 2014, minutes with the above noted corrections.
January 12, 2015, Joint City Council and Planning Commission Meeting
MOVED by Waldhauser, seconded by Blum and motion carried unanimously to approve
the January 12, 2015, minutes as submitted.
2. Informal Public Hearing — Property Rezoning — 6000 Duluth Street— King of
Grace Lutheran Church and School - Z011-15
Applicant: King of Grace Lutheran Church and School
Addresses: 6000 Duluth Street
Purpose: To rezone the property from 1-1 Institutional with a setback restriction to
1-1 Institutional without restrictions.
Zimmerman reminded the Commission that this same request was heard in 2013. At that
time the Applicant withdrew their application before they went before the City Council.
Minutes of the Golden Valley Planning Commission
January 26, 2015
Page 2
Zimmerman discussed the current zoning of the property and explained the Applicant's
request to rezone their property in order to remove a setback restriction that requires a
120 foot setback along Kenneth Way. He stated that this area was previously zoned Single
Family residential, but was rezoned to Institutional in 1969. He explained that during the
rezoning process a protective covenant with the surrounding neighbors was also established
enforcing the 120 foot setback restriction. He stated that the covenant was effective through
1999 with a clause for an automatic 30 year extension unless a majority of neighbors agreed
to remove it. He added the covenant is a separate issue from the zoning restriction and that
the City Attorney has advised they be dealt with independently. He stated that staff is
recommending approval of the Applicant's request to rezone the property without restriction.
Cera noted that in 1969 the City approved the rezoning by adopting an ordinance. He asked
about today's rezoning process. Zimmerman stated that rezonings are approved by
ordinance and that the Official Zoning Map is also amended. Cera asked if the original
ordinance would need to be rescinded. Zimmerman said the City Council would rescind the
original ordinance.
Segelbaum said he doesn't recall seeing additional setback restrictions placed on properties
in the past, and that people usually just enter into private covenant agreements. He asked
Zimmerman if he has seen other situations similar to this one. Zimmerman said there are a
couple of cases where restrictions were put in place at the time of rezoning, but not many.
Segelbaum clarified that the Planning Commission's focus should be on the rezoning
request and that the covenant is outside of their domain and is up to the parties in the
covenant to change it. Zimmerman agreed.
Baker asked how the status of the covenant would affect the rezoning. Zimmerman stated
that nothing can happen in the 120 foot setback area unless both restrictions are removed.
He added that if the zoning restriction is removed and the covenant is determined to be
invalid, then the property would have the typical 35 foot front yard setback area.
Blum asked if there are many similar institutions in Golden Valley that have the older type of
zoning. Zimmerman said no and explained that the unusual thing in this case is that it was
residential property that was rezoned to Institutional which concerned neighbors who thought
there would be houses built there, not an Institutional use. Blum asked if it is correct to say
that the rest of the Institutional uses in Golden Valley are zoned without the restrictions this
one has. Zimmerman said yes.
Erwin Ekhoff, Administrative Pastor, King of Grace Church, said they are seeking to rezone
their property to the 1-1 Institutional Zoning District with no special restrictions. He said their
request is to make full use of their property in keeping with present codes just as all other
property owners under this zoning category. He stated that he met with City staff to discuss
the covenant as well as MN statute 500.20 which speaks to private covenants more than 30
years old and concludes that they may be disregarded. He referred to a site plan of their
property and explained that they would like to move their existing playground from the east
side of their property, which is in a traffic area, to the north side of the property so it is safer.
Minutes of the Golden Valley Planning Commission
January 26, 2015
Page 3
Cera asked Ekhoff if discussions have occurred with the other covenant
members/neighbors. Ekhoff said no because the opportunity hasn't been right yet.
Segelbaum asked Ekhoff if he has heard comments from any of the neighbors. Ekhoff said
no.
Waldhauser asked about the landscaping plans along the north side of the property. Ekhoff
said they've planted between 20 and 27 trees on the north side of their property.
Johnson asked how the north area of the property is currently used. Ekhoff said it is used as
an open playfield area.
Cera asked Ekhoff if they are willing to add more screening along the north side of the
property. Ekhoff said they would work with the City regarding landscaping and screening.
Segelbaum asked Ekhoff if they have plans for any future building expansions. Ekhoff said
right now the plan is to move the playground. He said he doesn't foresee any construction on
the north part of their property.
Waldhauser asked Ekhoff if they have plans to expand their parking area. Ekhoff said no.
Baker asked Ekhoff about their membership projections. Ekhoff said their membership is
holding and not declining.
Carol Lansing, Attorney with Faegre Baker Daniels, 90 South 7th Street, Minneapolis,
reiterated that the covenant is a private legal matter to be handled outside of the zoning
decision. She stated that the City has determined that a 35 foot front yard setback is
appropriate in the 1-1 Zoning District citywide, therefore they are requesting removal of the
very old restriction so that they can be with the modern times and be treated the same as
other Institutional properties in the City. She said that from a legal standpoint there is no
basis to put conditions on rezonings like was done in 1969. She added that state statute
says that all zoning regulations within a zoning district are to be uniform and applied
uniformly or you will run into constitutional problems.
Segelbaum stated that a deal was struck with the neighborhood back in 1969 with the
covenant and the rezoning and questioned the basis for going back on that deal and why it
wouldn't be binding. Lansing said that with respect to the covenant the 30 year duration
restriction was in place and all parties should have been aware that was the law they were
working with and by putting in an automatic extension they couldn't get around the statute.
She read a portion of case law regarding the purpose of the statute and the practical
limitations. She said 45 years ago times were different, the state has a statute in order to not
unduly hamper a city's ability to guide land use through future times and that the statute that
limited the duration to 30 years was in place then, so really the parties entered an agreement
that couldn't be enforced for more than 30 years. Segelbaum asked Lansing if she is saying
that the condition put on the rezoning done in 1969 is invalid. Lansing said she thinks it is
invalid and that if the City refuses to remove it, it would be the same as imposing it, and
would be treating this 1-1 property differently than others. Segelbaum said it would not be
considered a taking if it was already taken 30 years ago.
Minutes of the Golden Valley Planning Commission
January 26, 2015
Page 4
Cera opened the public hearing.
Jay Dworsky, 5930 Kenneth Way, asked how things are different today than when the
covenant was made in 1969, and how the covenant can be separate from the rezoning.
Joel Hendrickson, representing Joel and Lois Hendrickson, 6000 Kenneth Way, said he
knows the City has put a moratorium on dividing property and he appreciates the foresight of
the City stepping back from making actions that affect the future. He said the covenant
regarding this property wasn't imposed by the City, it was an agreement with the property
owners and the owner of the church at the time to give some assurance to the neighbors
that the property would remain residential by nature. He said there has been very little
communication with the neighbors by the church. He stated that the City has a jewel in the
rough with the green space in the covenant area that would be protected until 2029. He said
there have only been two covenants like this, both were with churches, and this is the only
remaining covenant in Golden Valley. He asked that the City consider what legal covenants
are versus restrictive conditions. He stated that if the land were rezoned it would really be
supporting a possible daycare or a senior high rise and proposals would have to be
considered according to the new zoning. He said the City also needs to consider how much
activity the neighborhood can support, the size of the structures and existing paved areas,
and where the rain water filters before it goes into Bassett Creek. He said ideally the City
would honor the covenant that is in place which assured the homeowners a residential look
and feel until 2029. He said if the rezoning is granted, he implores the City to require a
performance bond for the landscaping.
Richard Ekelund, 6020 Kenneth Way, said he enjoys the green space across the street and
he is concerned about it disappearing. He said there is no reason the neighbors and the
church can't get together and discuss the issues. He said he is also concerned about his
property value going down.
Barbara Paterson, 2040 Adair Avenue North, said the church has planted approximately
seven trees and it is a completely open space that is used for the school's physical
education. She said putting the playground on the north end of the property will eliminate the
area they use for physical education which is a Board of Education requirement.
Gary Dahlgren, 6050 Kenneth Way, said he likes the idea of having good churches and
schools and has nothing against the church, but he does have concerns about what is done
across the street from his property. He said the church's plans are vague and if the rezoning
starts to impact his property, he wants to be involved and have input and judgment in what
happens.
Seeing and hearing no one else wishing to comment, Cera closed the public hearing.
Segelbaum referred to the question regarding how things are different between now and
1969 when the zoning restrictions were adopted. Zimmerman said the church could speak to
what circumstances have changed for them. He said in terms of the zoning, the City would
not add conditions, and would uniformly apply the zoning requirements.
Minutes of the Golden Valley Planning Commission
January 26, 2015
Page 5
Segelbaum asked if the Applicant was required to have a neighborhood meeting.
Zimmerman said no.
Segelbaum asked if the Applicant could add a daycare or a senior high rise. Zimmerman
said those uses would require a Conditional Use Permit.
Cera asked if there are impervious surface requirements in the 1-1 Zoning District.
Zimmerman said that disturbances over a certain amount would require City and Bassett
Creek Water Management Commission review. Segelbaum asked if there are water run-off
restrictions in place. Zimmerman reiterated that there would be review and permits required
with site disturbance.
Segelbaum asked about the idea of requiring a performance bond for landscaping.
Zimmerman said it is common to have an escrow in place, but he is not sure if the City can
force them to have an escrow if they aren't constructing anything. Waldhauser asked if lawn
space is considered landscaping. Zimmerman said the Zoning Code says the front setback
areas have to be planted and landscaped and contain no off-street parking.
Baker asked if further review would be required to relocate the playground. Zimmerman said
it depends how much area is disturbed. Baker asked if there would be an opportunity for the
Planning Commission to put conditions on landscaping or screening. Zimmerman said the
Planning Commission can recommend and encourage additional landscaping and
screening, but can't place conditions on the rezoning.
Baker said he is concerned about the lack of communication between the church and the
neighborhood. He said he would like there to be deliberate communication to resolve
differences. Segelbaum asked if a meeting with the neighbors could be made a condition.
Zimmerman said the Commission can recommend that a meeting be held with the
neighbors.
Segelbaum referred to the Applicant's attorney's statement about constitutional violations
and questioned if that really is what the law says. Zimmerman said he hasn't been involved
in the discussions with the attorneys. Waldhauser said the notion that properties zoned the
same have to be treated the same has been made very clear to them. Segelbaum said this
property is zoned differently and he would like to hear from the City Attorney and have the
Applicant meet with the neighbors in the meantime. Cera said a lot of the issues in this case
are beyond zoning and will be worked on outside of the City's review process. Waldhauser
said she agrees that it was not legal to differentiate this Institutional property from other
Institutional properties. Segelbaum said he does not want to state that what was done in
1969 was invalid.
Johnson said every property owner is going to go by their best interests and it makes sense
to him to move the playground out of a traffic area.
Blum said it is unfortunate that the ordinance language matches the covenant language. He
said he wants it to be clear that even if the ordinance changes, the covenant still needs to be
addressed. He said it seems fair and equitable to rezone the property to allow them to be
like every other 1-1 Institutional property.
Minutes of the Golden Valley Planning Commission
January 26, 2015
Page 6
Cera summarized the recommendations the Commissioners discussed as follows: 1) A
meeting with the church and the neighbors should be held prior to City Council
consideration, 2) guidance should be received from the City Attorney regarding the
ordinance language, and 3) consideration should be given to additional buffering and
landscaping.
Waldhauser said she would like to clarify that the City Attorney's guidance should be related
to the zoning ordinance and not the covenant. Johnson said he would like the
recommendation regarding the neighborhood meeting not to be just with the parties of the
covenant since they are not supposed to consider the covenant language.
MOVED by Baker, seconded by Blum and motion carried unanimously to recommend
approval of rezoning the property at 6000 Duluth Street from 1-1 Institutional with a setback
restriction to 1-1 Institutional without restrictions with the following recommendations: 1) A
meeting with the church and the neighbors should be held prior to City Council
consideration, 2) guidance should be received from the City Attorney regarding the
ordinance language, and 3) consideration should be given to additional buffering and
landscaping.
--Short Recess--
5. Reports on Meetings of the Housing and Redevelopment Authority, City
Council, Board of Zoning Appeals and other Meetings
Baker gave an update on the most recent Bottineau community meeting and stated that
there will be a community open house on January 29.
Baker gave an update on the neighborhood meeting held on January 21 regarding the
subdivision moratorium.
6. Other Business
• Council Liaison Report
No report was given.
7. Adjournment
The meeting was adjourned at 8:17 pm.
Charles D. Segelbaum, Secretary Lisa Wittman, Administrative Assistant
Golden Valley Human Services Fund (GVHSF) Meeting
Minutes
November 10, 2014
Present: Hilmer Erickson, Kathryn Frommer, Elissa Heilicher, Alan Ingber, Craig
McDaniels, Connie Sandler, Toots Vodovoz, Peggy Watkins and Andrew Wold. Also
present: Jeanne Fackler, Staff Liaison
Not Attending: Michael Herring, Carolyn Kaehr, and Jennifer Rudolph.
Call to Order: Wold called the meeting to order at 6:50 p.m.
Agenda Changes or Additions: No changes or additions to the agenda.
October 13 minutes: Erickson moved and Vodovoz seconded the motion to approve the
minutes from October 13. The motion passed unanimously.
Applications for Funding: Members reviewed the presentations given by Canvas
Health/Crisis Connection, Second Harvest Heartland and the YMCA-New Hope. After much
discussion, the following motion was made:
Motion: Erickson moved and Heilicher seconded the motion to recommend to the city
council the following allocations for 2015:
Agency Request Recommended allocation
Canvas Health/Crisis Connection $2,200 $2,000
Crisis Nursery $5,000 $0
Dinner At Your Door $8,000 $8,000
PRISM $10,000 $7,000
Second Harvest Heartland $3,000 $3,000
Senior Services HOME $5,000 $5,000
Senior Services Outreach $3,500 $2,000
Sojourner Project $5,000 $5,000
The Bridge for Youth $4,000 $4,000
TreeHouse $5,000 $3,000
YMCA — New Hope $7,000 $5,000
TOTAL $57,700 $44,000
Canvas Health/Crisis Connection: Funds to be used to continue phone support.
Crisis Nursery: Eliminate funding for 2015
Dinner At Your Door. Funds to be used to supplement clients unable to afford delivery and
subsidize meals costs.
PRISM: Funds to be used to provide emergency and support services for Golden Valley
residents.
Senior Community Services HOME: Funds to be used to fund the sliding fee scale to assist
low-income Golden Valley seniors.
Second Harvest Heartland: Funding would go towards the shared maintenance cost for
PRISM.
Senior Community Services Outreach: Funds to be used for in-home service coordination
(case management) and counseling to Golden Valley residents.
Sojourner Project: Funds to be used to support Sojourner Project's Shelter and Community
Legal Advocacy Program for Golden Valley residents.
The Bridge for Youth: Funds to be used to cover the cost of cab fares for "Project Cab"
(emergency transportation) for Golden Valley residents.
TreeHouse: Funds to be used to offset the cost of transporting teens to the TreeHouse
facility in New Hope and St. Louis Park.
YMCA-New Hope: Funds to be used to provide scholarships for memberships and
programs for Golden Valley residents.
The motion passed unanimously.
Other Business:
Solicitation Letter: Fackler passed out a draft of the letter. The goal is to have the letter
ready for mailing by November 15tH
Run the Valley t-shirt: Fackler discussed trends in races, with offering a moisture wick
t-shirt as a way to increase runners. After discussion, the members decided to:offer the
moisture wick shirteliminate the T-shirt contest and ask the Communications Department to
design the shirt raise the entry fee by $5 to cover the increased cost of the shirt
Fackler will send a request for prices to t-shirt suppliers.
Council Meeting: Wold invited members to attend the December 2nd City Council meeting.
He will be presenting the annual report and ask the Council to approve the funding
recommendations. The meeting begins at 6:30 PM.
November minutes: Fackler will send the minutes prior to the December 2nd council
meeting for members approval.
Resignation: Carolyn Kaehr will be sending a letter to the Mayor indicating her resignation
from the Commission.
Next meeting: There will be no meeting in December. The next meeting will be January
12th
Adjournment: Sandler moved and Frommer seconded the motion to adjourn the meeting.
The meeting was adjourned at 7:40 p.m.
Respectfully submitted,
Andrew Wold, GVHSF Chair Jeanne Fackler, Staff Liaison
Police Civil Service Commission Meeting
7800 Golden Valley Road
Golden Valley, MN 55427
Friday, November 21, 2014 - 10 AM
Public Safety Building Conference Room
MINUTES
Call to Order
Attendance/Roll Call
The meeting was called to order by Commissioner Kumagai at 10:10 AM. Present at the
meeting were Commissioners Ben Peterson and Gloria Kumagai; Commander Jason
Sturgis, Lieutenant Steve Johnson, and Administrative Assistant Amanda Johnson. Chair
Roxanne Sienko was absent.
Approval of Minutes of September 19, 2014
Commissioner Peterson moved to approve the September 19, 2014 minutes as presented;
seconded by Commissioner Kumagai. The September 19, 2014 minutes were
unanimously approved.
Approval of Police Officer Eligibility Register
ster
Commander Sturgis advised the police officer hiring process has been completed. Two
written tests, a fitness test and two oral interviews were administered to candidates,
resulting in a final eligibility register of six candidates. Commander Sturgis advised
administration is seeking approval to certify this eligibility register.
Commissioner Kumagai stated she was pleased to see so many female candidates on the
register. She inquired how many persons of color had applied for the position, and
Commander Sturgis advised he did not have that information.
Commissioner Peterson asked if the policies and procedures of the Golden Valley Civil
Service Commission were followed during the promotional hiring process. Commander
Sturgis advised they were. Commissioner Peterson inquired whether police administration
had any reservations in recommending the list for approval and Commander Sturgis stated
they did not.
Commissioner Peterson moved to approve the Police Officer Eligibility Register; seconded
by Commissioner Kumagai. The Police Officer Eligibility Register was unanimously
approved. Commissioner Kumagai signed the register in Chair Sienko's absence.
Adjournment
Commissioner Peterson moved to adjourn the meeting; seconded by Commissioner
Kumagai. The meeting was adjourned at 10:14 AM.
Respectfully submitted,
Ben Peterson, Secretary
GOLDEN VALLEY TEEN COMMITTEE
Regular meeting at Brookview Community Center Minutes
October 27, 2014
1. Call to Order
Segelbaum called the meeting to order at 6:00 PM.
2. Roll Call
Present: Committee Members: Brittany Blazar, Melanie Blazar, Sam Buttress,
Sarah Carlson, Owen Hoeft, Shivani Nookala, Hannah Segelbaum and Non-Voting
Committee Member Olivia Behn.
City Staff: Brian Erickson, Recreation Supervisor; Carrie Anderson, Recreation
Supervisor.
Absent: Committee Members: Stella Haberman and Jack Knudson.
3. Approval
Shavoni motioned and Sarah seconded the motion to approve the minutes of
previous meeting.
4. Recreational center
Segelbaum mentioned recreational center; wants and location. Buttress mentioned
couches and places to lounge in this space. Anderson mentioned idea of teen music
concerts in this recreational space
5. Music opportunities
Segelbaum and Hoeft spoke about teen music and locations that concerts could
take place. Carlson mentioned street dance and block party aimed at bringing teens
together. Also, spoke about the possibility of this event happening at the water
tower. The idea of a teen programing event and community engagement
opportunities were also brought to attention.
6. Winter
Carlson mentioned the idea of events in the winter such as skiing, sledding, etc.
Segelbaum mentioned an event with ice skating and music. Brittany Blazar
mentioned a gaming tournament. Carlson mentioned rollerblading.
Intramural sports
Hoeft spoke about the possibility of intramural sports taking place in the summer. All
committee members agreed that this would be a positive addition to the Golden
Valley Community. Some of these sports could include: Ultimate frisbee, and/or
Volleyball taking place at Brookview Park or Theodore Wirth Park.
8. `Cool' places in or around Golden Valley
The committee spoke about places they enjoy hanging out in. Bowling alleys and the
depot coffee house were brought up, although neither exist in Golden Valley. The
committee concluded that there are no `cool' places to hang out in Golden Valley.
9. Task-force
Blazar reported on the most recent meeting of the Community Center Task Force.
The committee spoke about location number two for the recreation center. The
group decided not to have this building at Brookview Community Center, but near it.
10. Staff Updates
None.
11. Adjournment
Hoeft Motioned to adjourn at 6:45 PM.
Jack Knudson, Chair
ATTEST:
Hannah Segelbaum, Secretary
Itern 4A
13CWMC 1-15-15
Bassett Creek Watershed Management Commission
Minutes of Regular Meeting
December 18,2014
Golden Valley City Hall,8:30 a.m.
Commissioners and Staff Present:
Crystal Commissioner Guy Mueller, Vice Robbinsdale Not represented
Chair
Golden Valley Commissioner Stacy Hoschka, St. Louis Commissioner Jim de Lambert,Chair
Treasurer Park
Medicine Lake Commissioner Clint Carlson Administrator Laura Jester
Minneapolis Commissioner Michael Welch Attorney Charlie LeFevere, Kennedy& Graven
Minnetonka Not represented Engineer Karen Chandler, Barr Engineering Co.
New Hope Alternate Commissioner Pat Crough Recorder Amy Herbert
Plymouth Commissioner Ginny Black
Technical Advisory Committee(TAC)Members/Other Attendees Present:
Derek Asche, TAC, City of Plymouth Jeff Oliver,TAC, City of Golden Valley
Marge Beard, Plymouth Resident John O'Toole,Alternate Commissioner, City of Medicine
Lake
Eric Eckman, TAC, City of Golden Valley Bob Paschke, City of New Hope
Erick Francis,TAC, City of St. Louis Park Jim Prom, Councilmember, City of Plymouth
Christopher Gise, Golden Valley Resident Emily Resseger, Metropolitan Council
Leigh Harrod, Metropolitan Council Liz Stout,TAC, City of Minnetonka
Richard McCoy, TAC, City of Robbinsdale David Tobelmann, Alternate Commissioner, City of
Plymouth
Jane McDonald Black, Alternate Commissioner, City Scott Wylie, Golden Valley Resident
of Golden Valley
Linda Loomis, Chair Next Gen Plan Steering Karen Jensen, Metropolitan Council
Committee
1
BCWMC December 18, 2014, Meeting Minutes
1. CALL TO ORDER AND ROLL CALL
On Thursday, December 18,2014, at 8:35 a.m. in the Council Conference room at Golden Valley City Hall,
Chair de Lambert called to order the meeting of the Bassett Creek Watershed Management Commission
(BCWMC)and asked for roll call to be taken. The Cities of Minnetonka and Robbinsdale were absent from
the roll call.
2. CITIZEN FORUM ON NON-AGENDA ITEMS
No items were raised.
3. AGENDA
Commissioner Mueller moved to approve the agenda. Alternate Commissioner Crough seconded the motion.
Upon a vote,the motion carried 6-0 [Cities of Minneapolis, Minnetonka, and Robbinsdale absent from vote].
4. CONSENT AGENDA
Administrator Jester pointed out that for item 4F,the solicitation for letters of interest proposals for legal,
technical, and engineering consulting services would be published in Finance&Commerce and in the State
Register.
[Commissioners Black and Welch arrive]
Commissioner Welch requested the removal of item 4G--Approve revisions to BCWMC fiscal policies as
recommended by the Administrative Services Committee. Chair de Lambert said that the item would be
added to the agenda as item 5G. Commissioner Black moved to approve the Consent Agenda as amended.
Alternate Commissioner Crough seconded the motion. Upon a vote,the motion carried 7-0 [Cities of
Minnetonka and Robbinsdale absent from vote].
[The following items were approved as part of the Consent Agenda: the November 19, 2014, Commission
Meeting minutes,the monthly financial report, the payment of the invoices,the setting of the February 5,
2015, TAC meeting, Approval of comments on the Major Plan Amendment for the Mississippi Watershed
Management Organization,Approval to direct staff to submit solicitations for letters of interest proposals for
legal,technical,and engineering consulting services,Approval of the contract with Wenck for 2015 WOMP
operation.]
The general and construction account balances reported in the Financial Report prepared for the December
18, 2014, meeting are as follows:
Checking Account Balance $551,780.92
TOTAL GENERAL FUND BALANCE $551,780.92
TOTAL CASH& INVESTMENTS ON- $3,424,468.88
HAND (12/9/14)
2
BCWMC December 18, 2019, Meet-!ng Minutes
CIP Projects Levied—Budget Remaining ($2,698,600.87)
Closed Projects Remaining Balance $725,868.01
2013 Anticipated Tax Levy Revenue $14,954.83
2014 Anticipated Tax Levy Revenue $14,395.53
Anticipated Closed Project Balance $755,218.37
5. BUSINESS
A. Receive Final Report on 2012 Main Stem Restoration Project(CR2011)—Presentation by
Golden Valley Staff
Administrator Jester reminded the Commission of its procedure adopted this year to have cities provide
final reports of CIP projects. She said that she had developed a list of items to be included in the report.
Administrator Jester introduced Eric Eckman of the City of Golden Valley to present the final report on
the 2012 Main Stem Restoration Project(BCWMC CIP project#CR201 1).
Mr. Eckman provided background on the project and noted that the project area was from Wisconsin
Avenue to 10`h Avenue, and Duluth Street to the Crystal border. The contract was awarded in the summer
of 2012, construction started in December 2012 and was primarily completed by March 2013, and
planting work finished in summer 2013. He explained that the project restored 3,600 feet of shoreline
along the creek and that the feasibility study estimated a reduction of the phosphorous load by 60 pounds
per year and a reduction of the sediment load by 105,000 pounds per year.
Mr. Eckman reported that in addition to the areas restored through Commission funding, another
$130,000 in private investment was leveraged because some additional landowners(outside of the project
area)also restored their riparian areas.
Mr. Eckman reported that the rain and Flooding in June 2014 did not cause problems with the project. He
said that lessons learned include that it is good practice to communicate with the residents early on in the
project timeline about the project. Mr. Eckman said that the late fall/early winter construction timeframe
worked well to minimize erosion during construction. He added that another lesson learned is to secure
permits and construction access prior to bidding so that there are no delays. Mr. Eckman suggested that
for future projects if there are areas of the project in which the permits or access are not secured,then the
project could be split into smaller parcels with separate bids and contracts.
Mr. Eckman addressed the fact that establishing native plant communities is difficult. He said that there
are not incentives to the contractor to maintain the plantings during the warranty period because the
contractors are pre-paid for the work. Mr. Eckman suggested that the watershed somehow retain
watershed-wide services for plant maintenance. He said another idea to consider is for projects to be
broken into two projects including one contract for the project work and one contract for the two-to-three
year management of the plantings.
Commissioners offered comments, and Mr. Eckman and Mr. Oliver responded to questions.
3
BCWMC December 18, 2014, Meeting Minutes
Commissioner Welch requested that the Commission add to a future agenda a discussion of the format of
the final project reports. He said that one specific item worth discussing is how the report could include
information such as a table comparing the design plans and pollutant reductions to actual constructed
components and final pollutant removals.
Commissioner Tobelmann commented that the lessons learned need to be collected and the information
centralized so that they can be accessed by the Commission and all the member cities. Administrator
Jester said that the Commission will be designing a new website in 2015 and can create a lessons learned
section. Chair de Lambert said that he likes the idea proposed by Commissioner Welch, which is to
communicate in the final report information detailing to what extent the project goals were reached. Mr.
LeFevere noted that there isn't any reason that the Commission can't require access rights to be secured
before contracts are awarded.
B. Receive Report on Data and Trends from Bassett Creek WOMP Station—Presentation by
MCES Staff
Emily Resseger, Principal Environmental Scientist at Metropolitan Council Environmental Services
(MCES), introduced herself and MCES colleagues Leigh Harrod and Karen Jensen. She provided an
overview of the MCES and its work and background on the Watershed Outlet Monitoring Program
(WOMP). Ms, Resseger explained that the stream monitoring program started in the late 1980s, monitors
23 stream sites, and the data records of these sites range from 14 to 26 years. She explained that there are
9 stream sites in the Mississippi River region, including the Bassett Creek WOMP site. Ms. Resseger also
described the purpose of the data and the water quality assessment. She also noted that the MCES website
includes the full report on the Bassett Creek WOMP data and that a Bassett Creek factsheet is available
for use and distribution.
Ms. Resseger defined hydrology, summarized the hydrology of Bassett Creek, explained how flow is
estimated, and defined concentration and concentration trends. She reported that the concentration trends
for Bassett Creek indicate that the total suspended solids,total phosphorus and nitrate concentrations have
been declining in the creek, but that chloride concentrations have been increasing and are the highest of
the Metro streams monitored.
Ms. Resseger responded to questions and comments. She noted that the MCES will provide an annual
stream water quality summary, calculated loads and regional water quality assessment for the WOMP
stations. In the future, Ms. Resseger recommended that the MCES perform an updated trend analysis in
five years and perform special stuides. She also commented that the MCF,S could have a dialog with the
BCWMC about possible future special studies and she would like to have a meeting with Administrator
Jester and Engineer Chandler and any other BCWMC representative to talk about how the MCES can
help the BCWMC.
Ms. Jensen commented that she talks to other organizations about the Bassett Creek Watershed as an
example of a watershed that has achieved positive results.
Commissioner Black noted that there were a lot of questions and comments about chloride today, and she
requested that the topic be added to a future Commission agenda.
C. Consider Approval of 50% Plans for Schaper Pond Diversion Project(SL-3)
Administrator Jester reminded the Commission that this past summer it approved a contract with the City
of Golden Valley to design and construct the Schaper Pond project. She said that the City of Golden
Valley has entered into an agreement with Barr Engineering Company to design the project.
4
BCWMC December 18, 2014, Meeting Minutes
Mr. Oliver gave an overview of the project meetings between the City of Golden Valley and Barr
Engineering Company. He reported that the City started this week with preliminary activities on the
project's permitting.
Engineer Chandler displayed the 50%plan set on the projection screen. She provided background on the
project, saying that the project is being proposed because of the Sweeney Lake TMDL for phosphorous.
She explained that the TMDL calls for an annual reduction of 99 pounds of phosphorous to Sweeney
Lake.
Engineer Chandler described the options investigated in the feasibility study and the internal diversion
option selected by the Commission. Engineer Chandler went into further detail about the three different
internal diversion options considered and announced that the floating water baffle is the most feasible
internal diversion option for this project.
Engineer Chandler described the 380-foot long floating water baffle and other components of the project,
including cattail removal and berm construction resulting in 500 square feet of wetland fill, removal of 27
feet of the existing berm, She also described how 200 square feet of wetland fill would be required to
meet the City's request for establishing access points to maintenance areas. Mr. Oliver stated that the City
has two established wetland banks with the Minnesota Board of Water and Soil Resources(BWSR)and
the City plans to withdraw from them for this project.
Ms. Chandler pointed out items that are different in the 50%plans compared to the feasibility study,
including the need for the 700 square feet of wetland fill.
There was discussion, and Engineer Chandler responded to questions, including noting that the city may
not get the typical warranty on the floating water baffle due to the unusual use for the product in this case.
Commissioner Black moved to approve the 50%design. Commissioner Hoschka seconded the motion.
Upon a vote,the motion carried 7-0 [Cities of Minnetonka and Robbinsdale absent from vote].
Engineer Chandler noted that Barr Engineering and the City of Golden Valley are waiting to hear back
from the Department of Natural Resources(DNR)and the Minnesota Pollution Control Agency(MPCA)
about these 50% plans.
D. Consider Commission Involvement in Issue Resolution Team for Blue Line LRT(Bottineau Line)
Administrator Jester reported that the first Issue Resolution Team meeting was held last week and she and
Engineer Chandler attended. She said that plans for the Blue Line LRT are moving forward, and she and
Engineer Chandler recommend that Jeff Oliver and Richard McCoy represent the Commission at the
Issue Resolution Team meetings. She said that the meetings will be held twice a month through August
and Mr. Oliver and Mr. McCoy can update the Commission at its monthly meeting and can check in with
Chair de Lambert between meetings.
There was discussion about how the Commission would pay for Commission Engineer time if and when
they were involved with the project. Engineer Chandler noted Barr is tracking the time they spend on this
project and will use the"preliminary plat review"budget line item.
Commissioner Black moved to authorize Jeff Oliver and Richard McCoy to be the Commission's
representatives at the meetings and if they need assistance that they work with Administrator Jester and
that the Administrator and Engineer stay in close communication and that there is a ceiling on the
Engineer's budget of$5,000 for this item in 2015 out of the preliminary plat review line item and if that
ceiling is reached, staff will come back to the Commission. Commissioner Hoschka seconded the motion.
5
BCWMC December 18, 2014, Meeting Minutes
Upon a vote,the motion carried 7-0 [Cities of Minnetonka and Robbinsdale absent from vote].
E. Receive Update on Draft Watershed Management Plan
Administrator Jester announced that the transmittal letter went out and there is a copy of the letter in the
meeting packet. She said that the end of the 60-day comment period is the end of January 2015. She
suggested that the Commission communicate about the comment period to the individuals who attended
the Commission's Watershed Summit in June 2013 and to the groups such as Friends of Bassett Creek
and the Association of Medicine Lake Area Citizens(AMLAC), etc. The Commission agreed and
directed Administrator Jester to notify those parties that the draft plan is out for public comment and send
them a link to the draft plan.
F. Receive Update on Public Outreach Plan for Twin Lake Alum Treatment Project
Administrator Jester reported that she met with Jeff Oliver and Alternate Commissioner Jane McDonald
Black and other Golden Valley staff members about communication plans for the Twin Lake Alum
Treatment project. She provided an update on the draft communications plan, which includes the
development of a fact sheet, holding an open house, and developing signage to post at Twin Lake.
G. Approve Revisions to BCWMC Fiscal Policies as Recommended by Administrative
Services Committee
Administrator Jester stated that the Administrative Services Committee looked at some of the BCWMC's
fiscal policies in its 2011 Policies Manual. She said that because of changing fiscal situations and her
interest in putting more specificity around some of the fiscal policies, she recommend to the
Administrative Services Committee the changes proposed and as presented in the meeting packet.
Commissioner Welch had a question and then recommended that the sequence of the revised language be
changed so that the language specifies"to pay for non-capital work."
Commissioner Mueller moved to approve making these changes to the BCWMC's current policies as
amended in the Commission's discussion. Commissioner Welch seconded the motion.mon a vote,the
motion carried 7-0 [Cities of Minnetonka and Robbinsdale absent from vote].
Commissioner Welch commented that he thinks that in the future BCWMC policy issues should not be
placed on the consent agenda but instead on the regular agenda for discussion.
6. COMMUNICATIONS
A. Administrator:
i. Administrator Jester reported on the MAWD conference. She mentioned the presentation she
attended about Envision. There was discussion about Envision and the Commission
expressed interest in possibly having Erin Anderson Wenz of Barr Engineering present about
it to the Commission. Administrator Jester said that she would learn more about Envision at a
working meeting with Barr Engineering staff the following week.
B. Chair: No Chair Communications
C. Commissioners:
i. Commissioner Hoschka requested that the Commission search for less expensive catering and
volunteered to pick up catering orders.
ii. Commissioner Welch reported that the comment period for the Theodore Wirth Master Plan
h
BCWMC December 18, 2014, Meeting Minutes
closed this past Monday or Tuesday. Engineer Chandler said that the City of Golden Valley
was sending a comment letter and the Commission Engineer provided comments to the city
that they added to the letter. Engineer Chandler said that the Commission may be interested
in getting more involved when the plan gets further along.
D. TAC Members:
i. Richard McCoy announced that the City of Robbinsdale appointed an Alternate
Commissioner to the BCWMC this week.
E. Committees:
i. Commissioner Mueller reported that the Administrative Services Committee is working on a
Survey Monkey survey for evaluation of the Commission's key staff members that will be
distributed to the Commission in early January.
F. Legal Counsel: No Legal Communications
G. Engineer: No Engineer Communications
7. INFORMATION ONLY (Available at
h ttp://www.bassettereckwm o.o rg/Meetings/2014/2014-
December/2014DecemberMeetingPacket.htm)
A. Grant Tracking Summary and Spreadsheet
B. WCA Notice, Plymouth
8. ADJOURNMENT
Chair de Lambert adjourned the Bassett Creek Watershed Management Commission Regular Meeting at 11:25
a.m.
Amy Herbert, Recorder Date
Secretary Date
7
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Executive Summary For Action
Golden Valley City Council Meeting
February 17, 2015
Agenda Item
3. E. 1. Award Contracts for 2015 Street Construction and Maintenance Materials
Prepared By
Jeff Oliver, PE, City Engineer
Mark Ray, PE, Street Maintenance Supervisor
Summary
Staff has received quotes for concrete and asphalt materials used in Public Works maintenance
activities. Funding will be from the following sources in the adopted 2015-2016 Biennial Budget:
Concrete Repair 1452-6382
Street Maintenance 1440-6334
Staff recommends award of contracts to the low bids for each material as follows:
Materials Contractor Quote
Type LV4 Wearing Course C.S. McCrossan Construction, Inc. $48.10/Ton
Mix LVWE45030B
Type LV3 Non-Wearing Course C.S. McCrossan Construction, Inc. $43.30/Ton
Mix LVNW35030B
Type SP 9.5 Wearing Course Commercial Asphalt Co. $54.75/Ton
Mix SPWEB340C
Type SP 9.5 Wearing Course C.S. McCrossan Construction, Inc. $48.50/Ton
Mix SPWEB340B
Type SP 9.5 Wearing Course Commercial Asphalt Co. $54.45/Ton
Mix SPWEB240C
Type SP 9.5 Wearing Course C.S. McCrossan Construction, Inc. $49.00/Ton
Mix SPWEB240B
Type SP 9.5 Wearing Course C.S. McCrossan Construction, Inc. $56.00/Ton
Mix SPWEB330B
Materials Contractor Quote
Type SP 9.5 Wearing Course C.S. McCrossan Construction, Inc. $49.00/Ton
Mix SPWEA240B
Type SP 12.5 Non-Wearing Course C.S. McCrossan Construction, Inc. $49.20/Ton
Mix SPNWB230B
Type 3A32 Concrete Mixture Knife River $111.00/CY
Type 4000# Concrete Mixture Knife River $112.00/CY
Type 4000# Concrete Mixture (HE) Knife River $123.00/CY
Extra Delivery Cost for Loads under 5 CY Knife River $100.00/Load
Environmental Washout Knife River $20.00/Load
Recommended Action
Motion to award contracts for the 2015 Street Construction and Maintenance Materials to the
following companies as shown:
1. C.S. McCrossan for:
Type LV4 Wearing Course Mixture LVWE45030B at $48.10 per ton
Type LV3 Non-Wearing Course Mixture LVNW35030B at $43.30 per ton
Type SP 9.5 Wearing Course Mixture SPWEB340B at $48.50 per ton
Type SP 9.5 Wearing Course Mixture SPWEB240B at $49.00 per ton
Type SP 9.5 Wearing Course Mixture SPWEB330B at $56.00 per ton
Type SP 9.5 Wearing Course Mixture SPWEA240B at $49.00 per ton
SP 12.5 Non-Wearing Course Mixture SPNWB230B at $49.20 per ton
2. Commercial Asphalt Co. for:
Type SP 9.5 Wearing Course Mixture SPWEB340C at $54.75 per ton
Type SP 9.5 Wearing Course Mixture SPWEB240C at $54.45 per ton
3. Knife River for:
Type 3A32 Concrete at $105.00 per cubic yard
Type 4000# Concrete Mixture at $106.00 per cubic yard
Type 4000# Concrete Mixture High Early Strength at $117.00 per cubic yard
Extra delivery costs for concrete loads under 5 cubic yards at $100.00 per load
Environmental washout at $20.00 per load
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Golden Valley City Council Meeting
February 17, 2015
Agenda Item
3. F. Authorize Agreement for Professional Services with Barr Engineering Company for DeCola
Ponds and Medicine Lake Road Area Flood Mitigation Preliminary Design
Prepared By
Marc Nevinski, Physical Development Director
Jeff Oliver, PE, City Engineer
Eric Eckman, Public Works Specialist
Summary
A developer has approached the City with a proposal to redevelop a site located at the southeast
corner of Medicine Lake Road and Winnetka Avenue. The developer is in the process of acquiring
and assembling several of the parcels in the area, including the former VFW and Sifco sites and
parcels in between. The development proposal is called Liberty Crossing and the development
proposal includes multi-unit housing.
In 2011, the City retained Barr Engineering Company to perform a flood mitigation study in the
vicinity of DeCola Ponds, immediately southeast of this development site. The study also
investigated flooding on Medicine Lake Road, east of Winnetka Avenue and Terra Linda Drive,
located north of Medicine Lake Road in the City of New Hope, The flood-prone areas included in
the study have a tributary watershed that includes portions of the cities of Crystal, Golden Valley,
and New Hope. The findings of the initial study included a recommendation to further study the
potential flood reduction measures to reduce flood damage and roadway impacts, including the
need for flood storage in the vicinity of the proposed redevelopment site.
In 2014, the three cities approved a cooperative agreement to retain the services of Barr
Engineering for Phase 2 of the flood study (called the Medicine Lake Road and Winnetka Avenue
Area Long-Term Flood Mitigation Plan) to identify and evaluate the alternatives for long-term
flood mitigation inthe area.
Phase 2 of the study is ongoing, but one of the alternatives identified is to look for opportunities
to provide flood volume storage and conveyance near the area of flooding on Medicine Lake
Road between Winnetka Avenue and Rhode Island Avenue. The Liberty Crossing development
site in located precisely inthis area and is critical component ofthe flood mitigation alternatives
identified in the study.
Staff has met with the developer to discuss the development of a concept plan and preliminary
design that would serve to mitigate flood impacts associated with the Liberty Crossing
development and potentially create additional flood storage and conveyance for the larger study
area.
Due to its expertise in water resources and its experience working on the flood study, the City
requested a proposal from Barr Engineering Company for preliminary design services to
potentially incorporate flood storage into the Liberty Crossing site. A proposal was received from
Barr in an amount not to exceed $35,300 and the work is anticipated to be completed by
April 2015.
Funding for the project will come from the Storm Utility Fund.
Attachments
• Location map (1 page)
• Agreement for the Liberty Crossing Flood Mitigation Preliminary Design from Bar Engineering
Company (10 pages)
Recommended Action
Motion to authorize agreement for professional engineering services with Barr Engineering
Company for DeCola Ponds and Medicine Lake Road Area Flood Mitigation Preliminary Design for
an amount not to exceed $35,300.
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February 9, 2015
Mr.Jeff Oliver, PE
City Engineer
City of Golden Valley
7800 Golden Valley Road
Golden Valley, MN 55427
Re: Agreement for the Liberty Crossing Flood Mitigation Preliminary Design
Dear Mr. Oliver:
Thank you for the opportunity to provide professional engineering services to the City. We will do our
best to justify your expression of confidence in us. This letter, together with our Standard Terms
(attached), sets forth the Agreement between the City of Golden Valley and Barr Engineering Company
regarding the project to perform preliminary flood mitigation design work at the Liberty Crossing
development site. This site is a critical component of the flood mitigation alternatives identified in the
completed DeCola Ponds Area Flood Mitigation Study (DeCola Ponds study, Barr, April 2012) and the
ongoing Medicine Lake Road and Winnetka Avenue Area Long Term Flood Mitigation Plan (MLRWA plan,
Barr).
This letter presents the scope of professional consulting services we will provide for your project,
including the proposed work tasks, the cost estimate, and the schedule for the completion of the
proposed work. This scope includes tasks to be completed as part of the preliminary design of the flood
mitigation at the Liberty Crossing site and is based on discussions at our January 26, 2015 scoping
meeting with city staff. The scope for a second phase of the project (final design)will be developed upon
completion of the preliminary design work.
Introduction
The following is our proposed approach for the preliminary engineering work to be completed at the
Liberty Crossing development site (former VFW site and parcels to the south) located south of Medicine
Lake Road and east of Winnetka Avenue. This development site is located in an area known to experience
significant flooding during a variety of storm events. The completed DeCola Ponds study by the City of
Golden Valley and the ongoing follow-up MLRWA plan completed by the Cities of Golden Valley, New
Hope, and Crystal, identified the Liberty Crossing site as a critical location for flood volume storage and
flood conveyance. Although the follow-up flood mitigation study(MLRWA plan) is currently underway,
the purchase of the parcels and submittal of development plans for the Liberty Crossing development has
Barr Engineering Co. 4700 West 77th Street, Suite 200, Minneapolis, MN 55435 952.832.2600 www.barr.com
Mr.Jeff Oliver,PE
February 9,2015
Page 2
elevated the need for the City to work in partnership with the developer on incorporating the needed
flood mitigation components into the proposed development project.
Proposed Work Tasks
Task 1 —EducationaVBackground Meeting with the Developer
Task 1 will include one (1) meeting with the Liberty Crossing developer,engineers, and other
representatives to provide the history of the flooding in this area as well as a summary of the studies
completed to-date. This first meeting will include discussion of the impacts of the current flooding in this
area on the proposed development. Additionally, we will discuss the long-term flood mitigation needs for
this site including flood storage volumes(mitigation volume plus potential additional volume)and
conveyance needs.
This meeting was held on February 5,2015 and at the outcome of this meeting,the developer agreed to
work with the City of Golden Valley on incorporating the necessary flood mitigation storage and
conveyance.
Assumptions: N/A
Deliverables: One (1) meeting providing background of the flooding in the Medicine Lake
Road area
Task 2—Working Meeting with the Developer
Task 2 will include one (1)working meeting with the Liberty Crossing developer, engineers,and other
representatives to develop a project layout that will accommodate the necessary flood mitigation storage
and conveyance. This will include preparation for this working meeting including preliminary modeling to
evaluate project needs given the existing flooding conditions and evaluate impact on regional flooding
and help provide preliminary design parameters for the incorporation of the flood mitigation projects.
This meeting is scheduled for February 11, 2015.
Assumptions: N/A
Deliverables: One (1)working meeting to identify project layout options that accommodate
the flood mitigation needs
Task 3—Identify Utility Locations and Conflicts
Task 3 will include locating all public and private utilities on the Liberty Crossing development site, in
Medicine Lake Road north of the development site and at the intersection with Rhode Island Avenue,
along Rhode Island Avenue south of Medicine Lake Road, and around Pennsylvania Woods and DeCola
Ponds B. Utilities to be identified will include storm sewer,sanitary sewer(gravity and force mains) and
connections,water mains and connections, gas,electric, and communications.
Mr.Jeff Oliver,PE
February 9,2015
Page 3
We assume that the developer has completed a detailed existing conditions survey of Liberty Crossing
development site(including topography and utilities) and that we will be able to utilize this information.
We also assume that the City of Golden Valley will provide all available electronic utility information(in
CAD or GIS format) along with any available record drawings. The City of Golden Valley has requested
sanitary sewer information (electronic and record drawings)from the Metropolitan Council Environmental
Services. Additionally,we will utilize Gopher State One Call to locate utilities in areas outside of the
proposed development parcel/base map and will use GPS survey equipment to document the utility
locations in these areas. We expect this area to include the southern half of Medicine Lake Road adjacent
to the Liberty Crossing site, the full right of way along Rhode Island Avenue south of Medicine Lake Road,
and the area around the entrance to Dover Hill Apartments and north of DeCola Pond B.
Assumptions: Developer has completed a detailed existing conditions survey(topography and
utilities) of the Liberty Crossing development site; City of Golden Valley will provide all available
electronic utility information and any available record drawings for utilities in this area.
Deliverables: A preliminary base map of existing conditions utilities and topography for the
Liberty Crossing development parcel and surrounding area.
Task 4—Follow-up Meetings with the Developer
Task 4 includes preparation for and attendance at several follow-up meetings with the developer and city
staff.We expect these additional meetings will be necessary to work through iterations of the design
alternatives for the Liberty Crossing development to meet both the developer's needs and City's flood
mitigation requirements. We assume that we will need to prepare for and attend a total of three (3)
meetings with the developer to discuss and negotiate the various iterations of the project layout and
preliminary design of the flood mitigation project.
We can attend additional meetings as necessary on an additional time and expense basis.
Assumptions: N/A
Deliverables: Three (3) meetings to discuss iterations of the preliminary design and layout.
Task 3—Coordinated Hydrologic and Hydraulic Modeling
Task 5 includes additional hydrologic and hydraulic modeling that will be needed to evaluate the impact
of the preliminary flood mitigation design at the Liberty Crossing site on the regional flooding. The
developer will be responsible for the hydrologic and hydraulic modeling, and the water quality modeling
necessary to demonstrate compliance with the stormwater management requirements for the
development site. However, since this site is part of a regional flood area,we assume that we will utilize
the current existing conditions XP-SWMM model used for the MLWRA plan to evaluate the regional
impact of up to three(3) preliminary design iterations for the Liberty Crossing site, based on the meetings
between the City and the developer.
We will utilize the Atlas 14 10-, 50-, 100-, and 200-year, 24-hour design storm events and nested
distribution, to be consistent with the most recent modeling performed as part of the MLRWA plan.
These modeling efforts will be coordinated with the developer as much as possible.
Mr.Jeff Oliver,PE
February 9,2015
Page 4
Assumptions: Modeling of up to three(3) iterations of the preliminary flood mitigation design;
utilize the Atlas 14 10-, 50-, 100-, and 200-year, 24-hour design storm events with the nested
distribution.
Deliverables: XP-SWMM models reflecting the preliminary mitigation design, including a table
summarizing impacts of the proposed project on flood elevations in the key flood areas around
the development site.
Task 6—Development of Schematics and Renderings
In Task 6,we will develop schematics and perspective renderings for up to three (3) preliminary design
iterations for the Liberty Crossing development site, based on the meetings between the City and the
developer. This includes development of one(1)plan view schematic and one (1) perspective rendering
of each design iteration, as requested.
We recognize that the efforts in this task may not be necessary depending on how the meetings with the
developer proceed. However,we have budget allocated should these services be needed.
Assumptions: One(1) plan view schematic and one (1) street view rendering of up to three (3)
preliminary design iterations.
Deliverobles: Plan view schematics and street view renderings.
Task 7—Technical Memo Development
In Task 7,we will develop a technical memo summarizing the preliminary design work completed in the
tasks above,with the primary focus being on the preliminary design alternative that meets both the
developer's needs and City's flood mitigation requirements.We will provide an electronic draft of the
document for review by City staff and the developer or developer's representatives. We will revise the
technical memo based on comments received from City staff and the developer or developer's
representatives, and an electronic final draft of the technical memorandum will be submitted to City staff
and the developer. As City staff and the developer will be involved in the development of the alternatives
that will be evaluated,we assume the revisions to the draft technical memorandum will be minor and will
not require significant reworking or remodeling of the alternatives.
Assumptions: Revisions to draft memo will be minor and will not require significant reworking
or remodeling of the alternatives;All drafts of the technical memorandum will be electronic
Deliverables: One(1) electronic draft memorandum for review by City staff and the developer
or developer's representatives; one(1) electronic final memorandum incorporating revisions
based on the review comments.
Estimated Cost and Schedule
The table below describes the estimated costs associated with the tasks as described above in the scope
of services. Assumptions associated with these costs are included in the above text.The table below also
includes the estimated schedule for the services, and is based on a February 17, 2015 start date.
Mr.Jeff Oliver,PE
February 9,2015
Page 5
Task Description Estimated Amount Estimated
Hours Completion
1 Educational/Background Meeting 37 $4,600 February 5, 2015
with the Developer
2 Working Meeting with the 33 $3,900 February 11,2015
Developer
3 Identify Utility Locations and 29 $3,300 Late February 2015
Conflicts
4 Fallow-up Meetings with the 82 $9,600 March 2015
Developer
5 Coordinated Hydrologic and 43 $4,000 March 2015
Hydraulic Modeling
6 Development of Schematics and 68 $5,900 March 2015
Renderings
7 Technical Memo Development 40 $4,000 April 2015
Project Total $35,300
This Agreement will be effective for the duration of the services, unless earlier terminated by either the
City or us. We will commence work upon receipt of a copy of this letter signed by your authorized City
representative.We will inform you of our progress through periodic e-mail updates,telephone calls,
invoice details, and other communications.
For the services provided,you will pay us according to the attached Standard Terms. We will bill the city
monthly. The cost of the services will not exceed $35,300 without prior approval by the city.
We understand you or your designees have the authority to direct us. We will direct communications to
you at the City of Golden Valley,7800 Golden Valley Road. Direction should be provided to Jennifer
Koehler at Barr Engineering Co.4700 West 77th Street, Minneapolis, MN 55435.
During the term of this Agreement,we will maintain the following insurance coverages:
Worker Compensation Statutory
Employer Liability $500k per claim/$500k aggregate
Commercial General Liability$1M per claim/$2M aggregate, combined single limit
Mr.Jeff Oliver,PE
February 9,2015
Page 6
Automobile$1M combined single limit
Umbrella/excess policy as to above coverages $10M aggregate
Professional Liability(claims-made) $5M per claim/$5M annual aggregate
If this Agreement is satisfactory, please sign the enclosed copy of this letter in the space provided, and
return it to us.
Sincerely yours,
Barr Engi eering Co.
By
Kurt Leuthold
Its Vice President
Accepted this day of . 2015
City of Golden Valley
By
Thomas D. Burt
Its City Manager
Mr.Jeff Oliver,PE
February 9,2015
Page 7
Attachments
Standard Terms—Professional Services
Fee Schedule
BAR R
STANDARD TERMS-PROFESSIONAL SERVICES
Our Agreement with you consists of the accompanying letter or other authorization, Work Orders, and these Standard Terms —
Professional Services.
Section 1: Our Responsibilities water. If you are requesting that we provide services that
1.1 We will provide the professional services ("Services") include this risk, you agree to hold us harmless from
described in this Agreement. We will use that degree of such contamination claims, damages, and expenses,
including reasonable attorneys' fees, unless the loss is
care and skill ordinarily exercised under similar caused by our negligence.
circumstances by reputable members of our profession
practicing in the same locality. 2.6 You agree to make disclosures required by law. If we are
1.2 We will select the means, methods, techniquesrequired by law or legal process to make such, disclosures, you agree to hold us harmless and
sequences, or procedures used in providing our indemnify us from related claims and costs, including
Services. If you direct us to deviate from our selections, reasonable attorneys'fees.
you agree to hold us harmless from claims, damages,
and expenses arising out of your direction. Section 3: Reports and Records
1.3 We will acquire all licenses applicable to our Services 3.1 We will retain analytical data relating to the Services for
and we will comply with applicable law. seven years and financial data for three years.
1.4 Our duties do not include supervising your contractors or 3.2 Monitoring wells are your property and you are
commenting on, supervising, or providing the means and responsible for their permitting, maintenance and
methods of their work unless we accept any such duty in abandonment unless we accept that duty in writing.
writing. We will not be responsible for the failure of your Samples remaining after tests are conducted and field
contractors to perform in accordance with their and laboratory equipment that cannot be adequately
undertakings. cleansed of contaminants are your property. They will be
1.5 We will provide a health and safety program for our discarded or returned to you, at our discretion, unless
employees, but we will not be responsible for contractor, within 15 days of the report date you give written
job, or site health or safety unless we accept that duty in direction to store or transfer the materials at your
writing. expense.
1.6 Estimates of our fees or other project costs will be based 3.3 Our reports, notes, calculations, and other documents,
on information available to us and on our experience and and our computer software and data are instruments of
knowledge. Such estimates are an exercise of our our Services, and they remain our property, subject to a
professional judgment and are not license to you for your use in the related project for the
p j g guaranteed a purposes disclosed to us. You may not use or transfer
warranted. Actual costs may vary. You should add a our reports to others for a purpose for which they were
contingency. not prepared without our written approval. You agree to
1.7 The information you provide to us will be maintained in indemnify and hold us harmless from claims, damages,
confidence except as required by law. and expenses, including reasonable attorneys' fees,
Section 2: Your Responsibilities arising out of any unauthorized transfer or use.
3.4 Because electronic documents may be modified
2.1 You will provide access to property as required.
intentionally or inadvertently, you agree that we will not
2.2 You will provide us with prior reports, specifications, be liable for damages resulting from change in an
plans, changes in plans, and information about the electronic document occurring after we transmit it to you.
project which may affect the delivery of our Services. In case of any difference or ambiguity between an
You will hold us harmless from claims, damages, and electronic and a paper document, the paper document
related expenses, including reasonable attorneys' fees, shall govern. When accepting document transfer in
involving information not timely called to our attention or electronic media format, you accept exclusive risk
not correctly shown on documents you furnished to us. relating to long-term capability, usability, or readability of
documents, software application packages, operating
2.3 You agree to provide us with emergency procedure systems, and computer hardware.
information and information on contamination and
dangerous or hazardous substances or processes we 3.5 If you do not pay for the Services in full as agreed, we
may encounter in performing the Services. may retain reports and work not yet delivered to you and
you agree to return to us our reports and other work in
2.4 You agree to hold us harmless as to any claim that we your possession or under your control. You agree not to
are an owner, operator, generator, transporter, treater, use or rely upon our work for any purpose until it is paid
storer, or a disposal facility within the meaning of any for in full.
law governing the handling, treatment, storage, or
disposal of dangerous or hazardous materials. Section 4: Compensation
2.5 Site remediation services may involve risk of 4.1 You will pay for the Services as agreed upon or
contamination of previously uncontaminated air, soil, or according to our then current fee schedules if there is no
Documentl Ver.05/18/10
other written agreement as to price. An estimated cost is increased fee is not the purchase of insurance.
not a firm figure unless stated as such and you should
allow for a contingency in addition to estimated costs. 5.5 If you fail to pay within 60 days following invoice date,
we may considerer the default a total breach of our
4.2 You agree to notify us of billing disputes within 15 days Agreement and, at our option, we may terminate all of
and to pay undisputed portions of invoices within 30 our duties without liability to you or to others.
days of invoice date. For balances not paid under these
terms, you agree to pay interest on unpaid balances 5.6 we are involved in legal action to collect our
c
beginning 10 days after invoice date at the rate of 1.5% compensation, you agree to pay our collection
per month, but not to exceed the maximum rate allowed expenses, including reasonable attorneys'fees.
by law. 5.7 The law of the state in which the project site is located
4.3 If you direct us to invoice another, we will do so, but you will govern all disputes. Each of us waives trial by jury.
agree to be responsible for our compensation unless you No employee acting within the scope of employment
provide us with that person's written acceptance of the shall have any individual liability for his or her acts or
terms of our Agreement and we agree to extend credit to omissions and you agree not to make any claim against
that person. individual employees.
4.4 You agree to compensate us in accordance with our fee Section 6: Indemnification
schedule if we are asked or required to respond to legal 6.1 Each of us will indemnify and hold harmless the other
process arising out of a proceeding to which we are not from and against demands, damages, and expenses to
a party. the comparative extent they are caused by the negligent
4.5 If we are delayed by factors beyond our control, or if the acts, omissions, or breach of contract of the
project conditions or the scope of work change, or if the indemnifying party or of those others for whom the
standards change, we will receive an equitable indemnifying party is legally responsible.
adjustment of our compensation. 6.2 To the extent that may be necessary to indemnify either
4.6 In consideration of our providing insurance to cover of us under Section 6.1, you and we expressly waive, in
claims made by you, you hereby waive any right of offset favor of the other only, any immunity or exemption from
as to payment otherwise due us. liability that exists under any worker compensation law.
Section 5: Disputes,Damage,and Risk Allocation Section 7: Miscellaneous Provisions
5.1 Each of us will exercise good faith efforts to resolve 7.1 We will provide a certificate of insurance to you upon
disputes without litigation. Such efforts will include a request. Any claim as an Additional Insured shall be
meeting attended by each party's representative limited to losses caused by our sole negligence.
empowered to resolve the dispute. Disputes (except 7.2 This Agreement is our entire agreement, and it
collections)will be submitted to mediation as a condition supersedes prior agreements. Only a writing signed by
precedent to litigation. both of us making specific reference to the provision
5.2 We will not be liable for special, incidental, modified may modify it.
consequential, or punitive damages, including but not 7.3 Neither of us will assign this Agreement without the
limited to those arising from delay, loss of use, loss of written approval of the other. No other person has any
profits or revenue, loss of financing commitments or rights under this Agreement.
fees, or the cost of capital. Each of us waives against
the other and its subcontractors, agents, and employees 7.4 A writing may terminate this Agreement. We will receive
all rights to recover for losses covered by our respective an equitable adjustment of our compensation if our work
property/casualty or auto insurance policies. is terminated prior to completion as well as our fees and
expenses on the basis agreed upon through the effective
5.3 We will not be liable for damages unless you have date of termination.
notified us of your claim within 30 days of the date of
your discovery of it and unless you have given us an 7.5 We will not discriminate against any employee or
opportunity to investigate and to recommend ways of applicant for employment because of race, color, creed,
mitigating damages, and unless suit is commenced ancestry, national origin, sex, religion, age, marital
within two years of the earlier of the date of injury or loss status, affectional preference, disability, status with
and the date of completion of the Services. regard to public assistance, membership or activity in a
local human-rights commission, or status as a specially
5.4 For you to obtain the benefit of a fee which includes a disabled, Vietnam-era, or other eligible veteran. We will
reasonable allowance for risks, you agree that our take affirmative action to ensure that applicants are
aggregate liability will not exceed the fee paid for our considered, and employees are treated during their
services or$50,000,whichever is greater, and you agree employment, without regard to those factors. Our actions
to indemnify us from all liability to others in excess of will include, but are not limited to notifications, hiring,
that amount. If you are unwilling to accept this allocation promotion or employment upgrading, demotion, transfer,
of risk, we will increase our aggregate liability to recruitment or recruitment advertising, layoffs or
$100,000 provided that, within 10 days of the date of our terminations, rates of pay and other forms of
Agreement, you provide payment in an amount that will compensation, and selection for training or
increase our fees by 10%, but not less than $500, to apprenticeship. End of Standard Terms
compensate us for the greater risk undertaken. This
Document1 Ver.05/18/10
Bim: Fee Schedule-2015 Rev. 01/01/15
Rate*
Description (U.S. dollars)
Principal .........................................................................................................................................$145-295
Consultant/Advisor.........................................................................................................................$155-250
Engineer/Scientist/Specialist III......................................................................................................$125-150
Engineer/Scientist/Specialist II.........................................................................................................$95-120
Engineer/Scientist/Specialist I............................................................................................................$65-90
TechnicianIII..................................................................................................................................$125-150
TechnicianII.....................................................................................................................................$95-120
TechnicianI........................................................................................................................................$50-90
SupportPersonnel II ........................................................................................................................$95-150
SupportPersonnel I ...........................................................................................................................$50-90
Rates for litigation support services will include a 30% surcharge.
A ten percent(10%) markup will be added to subcontracts for professional support and construction
services to cover overhead and insurance surcharge expenses.
Invoices are payable within 30 days of the date of the invoice. Any amount not paid within 30 days shall
bear interest from the date 10 days after the date of the invoice at a rate equal to the lesser of 18
percent per annum or the highest rate allowed by applicable law.
Reimbursable expenses including, but not limited to, the actual and reasonable costs of transportation,
meals, lodging, parking costs, postage, and shipping charges will be billed at actual cost. Materials and
supplies charges, printing charges, and equipment rental charges will be billed in accordance with Barr's
standard rate schedules. Mileage will be billed at the IRS-allowable rate.
Principal category includes consultants, advisors, engineers, scientists, and specialists who are officers of the
company.
Consultant/Advisor category includes experienced personnel in a variety of fields. These professionals typically
have advanced background in their areas of practice and include engineers,engineering specialists, scientists,
related technical professionals, and professionals in complementary service areas such as communications and
public affairs.
Engineer/Scientist/Specialist categories include registered professionals and professionals in training (e.g.
engineers, geologists, and landscape architects), and graduates of engineering and science degree programs.
Technician category includes CADD operators, construction observers, cost estimators,data management
technicians,designers,drafters, engineering technicians, interns, safety technicians, surveyors, and water, air,
and waste samplers.
Support Personnel category includes information management, project accounting, report production,word
processing, and other project support personnel.
"Rates do not include sales tax on services that may be required in some jurisdictions.
city of ga
golden
n
Valle y Public Works Department
763-593-8030/763-593-3988(fax)
Executive Summary For Action
Golden Valley City Council Meeting
February 17, 2015
Agenda Item
3. G. Resolution Petitioning the Surface Transportation Board to Require an Environmental
Impact Statement (EIS) for the Construction of a Railroad Connector Track in Crystal
Prepared By
Marc Nevinski, Physical Development Director
Summary
Late last year, staff learned that Burlington Northern Santa Fe (BNSF) and Canadian Pacific (CP)
railroads are proposing to construct a connector track in the southwest quadrant of their
"diamond" crossing in Crystal. The connector track will enable trains to avoid congestion in the
Northtown Yard and other busy areas around the Metro. The map below shows the vicinity of the
proposed connection.
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Below is an illustration provided by BNSF showing the proposed connector routing.
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BNSF representatives have stated the connection will bring a significant increase in the frequency
of heavy freight trains on the BNSF line through Crystal, extending into Robbinsdale, Golden
Valley and Minneapolis. They have also stated that the pending agreement with CP does not
include restrictions on the type of freight to be moved on the BNSF track and that they are aware
that Bakken oil is among the cargo currently being shipped on the CP. Dozens of heavy freight
trains currently run on the CP each day. According to BNSF, those trains can be between 1-2 miles
in length. It is currently unknown what percentage of CP trains would be diverted to the BNSF at
the connection.
Trains of such length are expected to cause simultaneous blockage of four at-grade crossings in
Crystal and an additional crossing in Robbinsdale, impacting residents, businesses and public
safety movements. While crossings of the railroad in Golden Valley are grade-separated, noise
and vibrations from such trains are expected to impact residents and park users in the area.
Additionally, impacts to the floodplain and natural environment due to increased train traffic are
also of concern.
Crystal city staff reports its attorney has advised that the proposed rail connection is not subject
to any local, county or state permitting or review processes, and MnDOT staff indicates their role
is to only assess at-grade crossing safety. The U.S. Department of Transportation's Surface
Transportation Board (STB) is responsible for issuing a certificate of authorization for such a
connection and directs any environmental review process. If the STB determines that an EIS is
required, that process would include publication of the EIS and a public comment period that
would provide for community and citizen input on the project. A thorough environmental review
process including an EIS is essential to fully understand the impacts of the proposed connection.
Crystal staff has indicated they believe BNSF is positioning to avoid an EIS by acquiring necessary
properties for the connection prior to filing for authorization with the STB.
Staffs and elected officials from the cities of Crystal, Robbinsdale and Golden Valley have
engaged with elected officials from the State and MnDOT to better understand the proposed
connector project, as well as to identify ways to influence the connection.
Short of stopping the connector project, completion of an EIS is critical so that the connection
may be scrutinized by citizens, businesses and stakeholder agencies for potential adverse impacts
on the environment, neighborhoods and emergency services. The cities of Crystal and
Robbinsdale are considering resolutions similar to the one attached calling for an EIS.
Attachments
• Resolution of the City of Golden Valley petitioning the Surface Transportation Board to
Require an Environmental Impact Statement on Construction of Railroad Connector Track in
Crystal, Minnesota (2 pages)
Recommended Action
Motion to adopt Resolution of the City of Golden Valley Petitioning the Surface Transportation
Board to require an Environmental Impact Statement on Construction of Railroad Connector
Track in Crystal, Minnesota.
Resolution 15-13 February 17, 2015
Member introduced the following resolution and moved its adoption:
RESOLUTION OF THE CITY OF GOLDEN VALLEY PETITIONING THE
SURFACE TRANSPORTATION BOARD TO REQUIRE AN ENVIRONMENTAL
IMPACT STATEMENT ON CONSTRUCTION OF RAILROAD CONNECTOR
TRACK IN CRYSTAL, MINNESOTA
WHEREAS, Burlington Northern Santa Fe (BNSF) Railway Company and Canadian
Pacific (CP) Railway each own track that intersects in the city of Crystal, Minnesota and have
commenced a project to construct connector track at the site of the intersection; and
WHEREAS, the connector track would be built on land not currently owned by either
railroad and which is home to several active businesses; and
WHEREAS, such railroad connector track allows alternative routing of long trains
carrying heavy freight, including volatile oil products, currently transported on another route
through the Twin Cities metropolitan area; and
WHEREAS, the resulting re-routing due to new railroad connector track would
provide a new transportation route for long trains carrying heavy freight, including volatile oil
products, which poses numerous potentially negative safety and environmental effects in
the cities of Crystal, Robbinsdale, Golden Valley, and Minneapolis; and
WHEREAS, such effects include potential blockage in the city of Crystal of multiple
adjacent at-grade rail crossings by a single train, which can result in not only reduced
response capabilities of emergency first responders such as firefighters and police due to
long diversion of route but also increased roadway congestion impacting the community in
general; and
WHEREAS, such effects also includes passage of freight trains directly adjacent to
environmentally sensitive areas and prized park land in Golden Valley; and
WHEREAS, such freight traffic will introduce considerable noise, vibration and safety
impacts to residences and businesses located adjacent to and near the track; and
WHEREAS, such effects also include a dramatic increase in the volume, frequency
and length of freight trains on a little-used route; and
WHEREAS, such rail traffic will negatively impact sensitive park land, open space,
and
WHEREAS, the Surface Transportation Board in the United States Department of
Transportation is authorized under federal law to provide regulatory oversight of freight
railroads;
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Golden
Valley, that it urges the Surface Transportation Board to order the BNSF Railway Company
and the Canadian Pacific Railway to complete an Environmental Impact Statement prior to
acquiring land, completing final design, or commencing construction of the railroad
connector track.
BE IT FURTHER RESOLVED, that the City Clerk for the City of Golden Valley is
directed to prepare copies of this Resolution and transmit them to the Chairman of the
Surface Transportation Board, Minnesota's Senators and Representatives in the United
States Congress, and the City of Golden Valley's Senators and Representatives in the
Minnesota Legislature.
Shepard M. Harris, Mayor
ATTEST:
Kristine A. Luedke, City Clerk
The motion for the adoption of the foregoing resolution was seconded by Member
and upon a 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, signed by the Mayor
and his signature attested by the City Clerk.
gc,)
alley Public Works Department
763-593-8030/763-593-3988(fax)
Executive Summary For Action
Golden Valley City Council Meeting
February 17, 2015
Agenda Item
3. H. Authorize Power Purchase Agreements with New Energy Equity for Solar Array Installations
on Municipal Buildings and Agreement with Sundial Solar for Array Relocation Services
Prepared By
Jeff Oliver, PE, City Engineer
Eric Seaburg, EIT, Engineer
Summary
At its January 22, 2008, City Council meeting, the Council authorized the City's participation in the
U.S. Mayors Climate Protection Agreement. By entering into the agreement, the City joined many
other cities across the country that are committed to find ways to reduce global warming
pollution. As a result, the City has enacted numerous energy saving programs and projects in an
effort to reduce overall energy consumption. Many of these energy savings projects were driven
by state and regional grant programs and have resulted in a net decrease in energy costs and
energy consumption.
New Energy Equity Agreement
In January 2014, the City staff submitted a total of eight grant applications to the Minnesota
Department of Commerce's Made in Minnesota Solar Incentives Program, of which four were
selected for funding. The Made in Minnesota Solar program offers financial incentives for
construction of private, public, and residential solar array installations that are tied back into an
electric utility provider's main power grid. The program is funded via utility provider capital
improvement programs and is administered by the Department of Commerce. Of the four solar
array projects selected, one has been ruled out due to shading concerns. The remaining three
include solar arrays on:
1. Public Safety Building 40 kW System
2. Park Maintenance Building 40 kW System
3. Fire Station #3 16 kW System
The City has partnered with a third party investor, New Energy Equity (NEE), to utilize the
awarded grants. Over the past several months, City staff has worked on developing a Power
Purchase Agreement (PPA) with NEE to set the guidelines for a successful and long-term
partnership. The attached PPA is the result of many months of negotiation between City technical
and legal staff and NEE and is further described below.
By partnering with NEE, the solar arrays will be purchased, installed, and maintained by NEE.
There are no upfront capital costs for the City. The City, acting as the host site, will consume all
available energy produced by the solar arrays. In the event that there is excess or unused energy,
it will be pumped back into the Xcel power grid and the City will receive a credit on its monthly
Xcel statement. The City is liable to pay NEE at a per-kilowatt-hr rate for all energy produced by
the array and used by the City. The rate that the City is required to pay for the solar energy is set
forth in the contract and is at a rate lower than the City would be required to pay to Xcel for
standard power. The difference in the NEE rate and Xcel rate is the City's realized energy savings.
Some of the basic provisions of the PPA are as follows:
1. Contract term is 15 years, with City option to purchase system after 10 years at FMV.
2. NEE responsible for purchasing, installing, and maintaining the solar arrays.
3. NEE required to meet annual, predetermined output specifications.
4. City required to pay NEE a predetermined rate for solar power.
a. Year 1 NEE rate is $0.08 per kW-hr, fixed annual escalation rate of 2.5%
b. Year 1 Xcel rate is $0.011 per kW-hr, variable estimated escalation rate of 3.5%
5. NEE required to remove the system at the end of contract term.
Xcel Escalation Factor(variable) 3.50%
NEE Escalation Factor(fixed) 2.50%
Array Degradation (variable) -0.50%
Year: 2015 2016 2017 2018 2019 2020 2021
Xcel Rate [$/kWh] $0.110 $0.114 $_0.11_8 $0.122 $0_,_126____$0,131 __$0.135
NEE Rate [$/kWh] $0.080 $0.082 $0.084 $0.086 $0.088 $0.091 $0.093
Rate Difference [$kWh] $0.030 $0.032 $0.034 $0.036 $0.038 $0.040 $_0.042
Est. Annual Production [kWh] 135,793 135,114 134,438 133,766 133,097 132,432 131,770
City's Realized Savings $4,074 $4,303 $4,542 $4,790 $5,047 $5,315 $5,593
Year: 2022 2023 2024 2025 2026 2027 2028 2029
Xcel Rate [$/kWh] $0.140 $0.145 $0.150 $0.155 $0.161 $0.166 $0.172 $0.178
NEE Rate [$/kWh] $0.095 $0.097 $0.100 $0.102 $0.105 $0.108 $0.110 $0.113
Rate Difference [$kWh] $0.045 $0.047 $0.050 $0.053 $0.056 $0.059 $0.062 $0.065
Est. Annual Production [kWh] 131,111 130,455 129,803 129,154 128,508 127,866 127,226 126,590
City's Realized Savings $5,881 $6,181 $6,491 $6,814 $7,149 $7,496 $7,857 $8,231
Total Estimated Savings: __ $89,764
By authorizing the PPA with NEE, the City would be making a long-term and active approach in
reducing its carbon footprint. At the three municipal buildings where solar arrays are proposed,
the City's reliance on traditional Xcel power is estimated to be reduced by 25%. In addition, by
purchasing solar energy from NEE at a rate lower than traditional power, the City is
conservatively projected to save approximately $90,000 on electricity costs between the three
sites over the next 15 years.
Sundial Solar Agreement
Over the life of the agreement with New Energy Equity, the City will likely need to perform
reroofing activities at Fire Station #3. Staff has worked with Sundial Solar, which is NEE's certified
local contractor and the only party allowed to work on NEE's arrays, to develop an agreement for
array relocation services. By entering into an agreement now at a pre-negotiated rate, the City is
able to minimize its risk in unknown relocation costs and is able to budget for these costs when it
comes time to reroof. The agreement outlines a cost of$0.50 per DC watt of solar array. In
today's dollars, this would be a cost of approximately $7,000 to have the Fire Station #3 array
removed and reinstalled.
Attachments
• Location map (1 page)
• Park Maintenance Power Purchase Agreement (PPA) with New Energy Equity (NEE) (43 Pages)
• Public Safety Power Purchase Agreement (PPA) with New Energy Equity (NEE) (43 Pages)
• Fire Station #3 Power Purchase Agreement (PPA) with New Energy Equity (NEE) (43 Pages)
• Solar Photovoltaic System Removal and Reinstallation Agreement with Sundial Solar (6 Pages)
Recommended Action
Motion to authorize the Power Purchase Agreements with New Energy Equity and the System
Removal and Reinstallation Agreement with Sundial Solar.
-- i
Public Safety
7700 Golden Valley Rd
Street Maintenance
7710 Golden Valley Rd
Public Safety
Street
Maintenance
J;
Fire Station 3
3700 Golden Valley Rd
Park /
Maintenance
Fire
Station 3
Park Maintenance
7708 Golden Valley Rd
Approximate location
of solar arrays
Sources: Print Date:1/13/2015
:1�vJ Hennepin County Surveyors Office for Property
of Solar Array Project Ctyoff�ld&V; y orallotherla(ye0rs.
valev Site MaMM e
■ 0 30 60 120
Feet
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SOLAR PHOTOVOLTAIC SYSTEM
POWER PURCHASE AGREEMENT
This Solar Photovoltaic System Power Purchase Agreement ("Agreement') is
made and entered into as of January 28, 2015 ("Effective Date"), by and between NEW
ENERGY EQUITY LLC, a Maryland limited liability company, or assigns ("System
Owner"),and the City of Golden Valley,a municipal corporation located at 7800 Golden
Valley Road, Golden Valley MN 55427, ("Host Customer"). Each of System Owner and
Host Customer may be referred to herein as a"Party"and collectively,as the"Parties."
RECITALS
WHEREAS,Host Customer owns and controls certain property located in Golden
Valley,MN which uses electricity("Premises");
WHEREAS,System Owner is willing to design,install,own,operate and maintain
a solar photovoltaic electric generating system("System"),on Premises;
WHEREAS, the System would satisfy a portion of Host Customer's electricity
requirements at Host Customer's Premises, and System Owner desires to sell and Host
Customer desires to purchase,in accordance with the provisions hereof,all of the electricity
generated by the System("Output"};
WHEREAS, Host Customer is willing to provide System Owner with access to,
and the right to occupy a portion of, its property for the purpose of having the System
Owner design,install,operate and maintain the System;
WHEREAS System Owner and Host Customer agree that System Owner will
obtain and retain all Environmental Credits and all Financial Incentives and Tax Benefits
associated with the installation,ownership,operation and Output of the System;
NOW, THEREFORE, in consideration of the agreements and covenants
hereinafter set forth,the Parties hereby covenant and agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 Definitions
"Agreement"means this Solar Photovoltaic System Power Purchase Agreement,as
the same may be modified or amended from time to time in accordance with the provisions
hereof.
"Ancillary Services" means any supplemental services necessary to support the
transmission of electric power from a seller to a purchaser and available from the System
from time to time,whether existing as of the Effective Date or thereafter.
"Capacity"means electrical capacity that is dependent upon the availability and
operation of the System,measured in kilowatts.
"Contractors' means the independent contractors engaged by System Owner to
perform any of System Owner's obligations hereunder and shall include the independent
contractors subcontracted by independent contractors engaged by System Owner as set
forth in Section 4.4.
"Defaulting Party"means the Patty responsible for an uncured Event of Default
"Delivery Point"means the physical location where the System connects to the Site
Electrical System.
"Dispute"means a dispute as defined in Section 18.1.
"Disruption of Delivery"means a disruption of delivery when the System Owner
is capable of generating and delivering Output to Host Customer as set forth in Section
11.3.
"Due Date"means the due date that Host Customer must pay an invoice for Output
as set forth in Section 9.6.1.
"Effective Date"means the date of execution of this Agreement.
"Environmental Credits"means any and all federal,state or local renewable energy
or emissions credits, offsets, or green tags, whether related to any renewable portfolio
standard, renewable energy purchase requirement, carbon cap or trade market, or
otherwise, whether existing as of the Effective Date or enacted thereafter and whether
available to System Owner as owner of the System or producer of Output or available to
Host Customer as the purchaser or user of Output.
"Event of Default"means the events set forth in Section 15.1.
"Financial Incentives and Tax Benefits"means any and all federal, state or local
rebates, tax credits, energy production credits, or depreciation incentives related to any
renewable portfolio standard or other renewable energy purchase requirement or otherwise,
whether existing as of the Effective Date or enacted thereafter and whether available to
System Owner as producer of Output or available to Host Customer as the purchaser or
user of Output.
"Force Majeure"shall have the meaning set forth in Section 14.1.
14.1. "Force Majeure Event"means the events of Force Majeure as set forth in Section
"Host Utility"means the electric distribution company serving or connected to the
Host Customer.
"Indemnifying Party" means the Party responsible for indemnifying the
Indemnified Parties as set forth in Section 15.3.
"Installation Period"means the period commencing on the satisfaction of the pre-
installation conditions of Section 3.1 and continuing to the Service Commencement Date.
"Late Fee"means the late fee that System Owner may impose on Host Customer
for payments not made by the Due Date pursuant to Section 9.6.2.
"Meter" means the standard instrument(s) and equipment installed at the Site by
System Owner as part of the System to be used to measure and record the Output delivered
to the Host Customer at the Delivery Point.
"Net Metering Arrangements" shall have the meaning set forth in Section 4.7
herein.
"Non-Defaulting Party"means the Party to whom the Defaulting Party is liable in
accordance with the provisions of Article XV.
"Nan-Delivery Period" means the unexcused non-delivery of Output by System
Owner as set forth in Section 15.1.1.
"Output" means, and is limited to, the electricity produced by the System and
delivered to Host Customer at the Delivery Point.
"Person" means any natural person, partnership, trust, estate, association,
corporation, limited liability company, governmental authority or agency or any other
individual or entity.
"Premises"means Host Customer's property,as described in Exhibit A.
"Services" means the design, installation and testing of the System and, upon
successful completion of installation and testing,the operation,maintenance and repair of
the System, by System Operator as necessary to produce and delivery Output to Host
Customer in accordance with the terms and conditions of this Agreement.
"Service Commencement Date"means the successful completion of the installation
and testing of the System with notice to Host Customer that the System is ready to deliver
Output as set forth in Section 4.9.
"Service Term" means the period commencing on the Service Commencement
Date and continuing until the termination of this Agreement.
"Site"means the area on the Premises described in Exhibit A on which the System
Owner will install the System.
"Site Electrical System" means Host Customer's existing building electrical
systems that are owned or leased,operated,maintained and controlled by Host Customer,
and which systems are interconnected with the Host Utility.
"Solar Electricity Price"means the price specified in Exhibit C that Host Customer
shall pay System Owner for the delivery of Output.
"System" means all equipment and materials, including but not limited to
photovoltaic arrays, DC/AC inverters, wiring, meters, tools, software, and any other
property now or hereafter installed, owned, operated, or controlled by System Owner for
the purpose of or incidental or useful to,maintaining and modifying the use of the solar
generation system and providing Output to Host Customer at the Delivery Point. The
System is described more particularly in Exhibit B. For the avoidance of doubt,the System
specifically excludes any part of the Site Electrical System.
"Tariff' means the tariff of the Host Utility that set forth the interconnection and
net metering standards and requirements for the System to operate and for System Owner
to deliver Output to Host Customer in accordance with terms and conditions of this
Agreement.
"Term"means the period of time that this Agreement shall be in effect as set forth
in Article II.
1.2 Interpretation
In this Agreement,unless the context requires otherwise,the singular includes the
plural and the plural the singular, words importing any gender include the other gender,
references to statutes, sections or regulations are to be construed as including all statutory
or regulatory provisions consolidating,amending,replacing,succeeding or supplementing
the statute, section or regulation referred to; the words "including," "includes" and
"include" shall be deemed to be followed by the words "without limitation" or "but not
limited to"or words of similar import; references to articles, sections (or subdivisions of
sections), exhibits, annexes or schedules are to those of this Agreement unless otherwise
indicated; references to agreements and other contractual instruments shall be deemed to
include all exhibits and appendices attached thereto and all subsequent amendments and
other modifications to such instruments,and references to Persons include their respective
successors and permitted assigns.
1.3 Service Contract
The Parties intend that this Agreement be treated as a"service contract"within the
meaning of Section 7701(e)of the Internal Revenue Code.
ARTICLE H
TERM
2.1 The Term of this Agreement shall commence on the Effective Date and
shall terminate fifteen (15) years following the Service Commencement Date, unless
terminated earlier in accordance with provisions of this Agreement.
2.2 At the time that Host Customer notifies System Owner of its election
pursuant to Section 12.1.6, Host Customer may request that System Owner agree to a
renewal of the Agreement beyond the end of the Service Term.Any agreement to renew
this Agreement shall be subject to negotiation and agreement between the Parties.
ARTICLE III
SYSTEM DETAILED DESIGN
3.1 Pre-Installation Conditions
3.1.1 Com letion of Detailed System Des'
At the time of the execution of this Agreement,Host Customer shall have provided
System Owner with all available, necessary and up-to-date Premises, Site and Site
Electrical System drawings, specifications and other documentation that System Owner
may reasonably require to develop and complete a detailed System design. For this purpose
Host Customer shall provide System Owner with access to the Premises and the Site to
verify field conditions,and shall make appropriate staff available to answer questions and
provide information required by System Owner to support the detailed design process.
3.1.2 Receipt of Required Third Party Authorizations
Within ten(1 U)days of the execution of this Agreement,Host Customer shall have
obtained or shall obtain on behalf of itself and System Owner, any and all easements,
leases,licenses,consents,acknowledgments,approvals and other rights and authorizations
from third parties,including entities or persons holding any mortgage or other lien or lease
burdening the Premises on the Effective Date, necessary for System Owner to begin
installation of the System at the Site,to install and test the System,to produce and deliver
Output to Host Customer to the Delivery Point, and to own, operate and maintain the
System under this Agreement. Host Customer shall obtain and forward the foregoing
authorizations and approvals to System Owner as each is received.
3.1.3 Receipt of all Necessary Construction and Other Permits
System Owner shall apply for,pay for, and obtain all necessary construction and
other permits from local authorities and Host Utility. Host Customer shall cooperate with
System Owner as necessary in the permitting process and shall apply directly for permits
if necessary. System Owner shall deliver copies of all permits obtained to Host Customer
upon Host Customer's request,and where applicable Host Customer shall do the same.
3.1.4 Failure to Satisfy Pre-Installation Conditions
(a) If System Owner determines in its sole discretion that a pre-installation
condition set forth in this Section 3.1 cannot be satisfied, or that the System as described
in Exhibit B cannot be installed on the Site because the roof is structurally inadequate to
support the System, the Site Electrical System is inadequate to accept the Output of the
System, or architectural and other requirements are discovered that would add to the cost
of the System, System Owner will notify Host Customer that the System cannot be
constructed as proposed, and this Agreement will terminate with neither Party having
Rather obligations under this Agreement;provided however,that the Parties may agree to
amend this Agreement to accommodate a revised,feasible System in which case the Parties
shall agree to a revised System design and execute an amendment to this Agreement with
revised Exhibits A,B and C.
(b) If System Owner determines that the drawings, specifications and other
documentation associated with structural calculations„ electrical upgrades or other part of
the System provided to System Owner by Host Customer pursuant to Section 3.1.1 are not
correct or complete,and that revisions thereto would add to the cost of the System, System
Owner may ask Host Customer for revised documentation or may notify Host Customer
that the System cannot be constructed as proposed and terminate this Agreement; provided
however,that the Parties may agree to amend this Agreement to accommodate a revised,
feasible System in which case the Parties shall agree to a revised System design and execute
an amendment to this Agreement with revised Exhibits A,B and C.
ARTICLE IV
SYSTEM INSTALLATION
4.1 System Installation
4.4.1 Installation Schedule
System Owner will provide Host Customer with a proposed installation schedule
and an estimated Service Commencement Date. Host Customer shall have ten (10)
business days to review and comment on the schedule,and System Owner shall revise such
accordingly if changes are required by local law, jurisdiction or best solar installation
practices; should Host Customer fail to respond in such timefiame,the proposed schedule
will be considered approved. System Owner will notify Host Customer of any material
changes to the proposed schedule and any revisions to the estimated Service
Commencement Date during the Installation Period.
4.1.2 Right of Access During Installation Period
System Owner and its Contractors shall have the right of access specified in Article
VI during the Installation Period and will coordinate installation activities with Host
Customer to minimize interference with normal operations at the Premises, to the extent
reasonably practical and without causing undue delay in the Service Commencement Date.
Any work that requires interruption of electricity to Host Customer's Premises will be
identified in the installation schedule, and System Owner or its Contractors will receive
approval from Host Customer prior to any such interruption.
4.1.3 Installation to Specifications and Standards
Upon satisfaction of the pre-installation conditions of Section 3.1, System Owner
will begin installation at the Site. System Owner shall install, and test the System on the
Site in accordance with the technical specifications set forth in Exhibit B. System Owner
shall perform Services in a good and workmanlike manner and in compliance with all
applicable laws and regulations, including System compliance with the Host Utility's
interconnection and Tariff requirements.
4.1.4 Qutput During System Testing
During the Installation Period, System Owner or its Contractors may test the
System,and Host Customer shall accept delivery of any Output resulting from such testing
during the Installation Period. There shall be no charge to Host Customer for Output
delivered from the System during the Installation Period
4.1.5 Connection of System to Site Electrical System
System Owner shall be responsible for the interconnection of the System to the Site
Electrical System and shall be solely responsible for all equipment, maintenance, and
repairs associated with such interconnection equipment in accordance with the terms and
conditions of this Agreement. Host Customer shall at all times own and be responsible for
the operation and maintenance of the Site Electrical System at and from the Delivery Point.
4.2 Hazardous Materials and Refuse
4.2.1 Host Customer Representation
Except as disclosed on Exhibit A, Host Customer represents that at the time it
executes this Agreement,it has disclosed to System Owner any and all hazardous materials
that exist at the Site or Premises in Exhibit A of this Agreement.
4.2.2 System Owner Responsibilities
During the Installation Period and thereafter, System Owner agrees and shall cause
its Contractors to agree,as follows:
(CA To take reasonable measures to reduce or mitigate noise,dust,the spread of
debris and installation materials;
(b) To remove all debris, extra materials, scaffolding, tools, machinery and
other installation materials from the Site and other work areas at the conclusion of the
Installation Period;and
(c) To use and dispose of any "hazardous materials" as defined in any
applicable federal or state environmental laws brought to the Site or the Premises in
connection with Services being performed in accordance with all applicable laws.
4.2.3 Effect of Discovery_of Hazardous Materials
If System Owner or its Contractors discover any hazardous materials existing on
the Premises or the Site during the installation and testing of the System that System Owner
reasonably believes may require removal or remediation, or that otherwise impairs or
prevents installation and testing of the System, System Owner shall promptly notify Host
Customer,and System Owner may,in its sole discretion,suspend installation or testing of
the System until such time as Host Customer has removed the hazardous materials and
remediated. the Premises to System Owner's satisfaction. System Owner shall have no
responsibility or liability in respect of hazardous materials existing at the Premises(other
than any hazardous materials brought to the Premises by or on behalf of System Owner).
If Host Customer does not agree on a schedule and terms to remove the hazardous materials
which permits System Owner to resume installation within a reasonable timeframe
following the discovery of such hazardous materials at the Premises or the Site,then such
failure shall be an Event of Default, Host Customer shall be liable for damages for an
amount not in excess of the proceeds from the available insurance coverages, as a
Defaulting Party in accordance with the provisions of Article XV,and System Owner may
terminate this Agreement. System Owner and Host Customer agree to use reasonable
efforts to mitigate the damages to the Defaulting Party,including but not limited to moving
the installation to another location at the cost of Host Customer.
4.2.4 Mutuallndemnification
Each Party agrees to indemnify and hold harmless the other Party for any claims,
fines, damages, and costs (including attorney's and consultant's fees) arising out of
hazardous material liability to the extent the Party is responsible for such hazardous
materials and is thus an Indemnifying Party under Section 15.3. This clause shall survive
the termination of this Agreement and expiration of the Service Term.
4.3 Licenses.Permits and Inspections Durin�Installa}tion
System Owner shall maintain and shall ensure that its Contractors maintain all
required licenses and permits during the Installation Period. System Owner and its
Contractors shall obtain all inspections required by all authorities having jurisdiction
during the Installation Period and during the Term. Certificates of inspection or other
appropriate documentation by said authorities shall be delivered to Host Customer upon
completion of the installation of the System.
4.4 Contractors
4.4.1 Subcontract Requirements
System Owner may hire Contractors by subcontracting the performance of any part
or all of the Services System Owner is obligated to provide hereunder. All Contractors so
engaged by System Owner shall be required by contract to have all permits, licenses,
insurance and registrations required to perform the Services subcontracted to them.
4.4.2 Identification of Contractors to Host Customer
System Owner shall provide Host Customer with (a) the identification of all
Contractors to be engaged by System Owner,and(b)evidence that such Contractors have
obtained and will maintain insurance as required by Article XVI. All Contractors shall
follow Host Customer's Premises access protocols, including sign-in, security and safety
orientation,before commencing any work at the Premises.
4.4.3 Host Customer Right to Remove Contractors from Site for Cause
Host Customer shall have the right to require the removal from the Site of any
Contractor or the agents, employees or subcontractors of such Contractor, who, in Host
Customer's sole judgment, exhibit unsafe work practices, unacceptable quality of
workmanship,or behavior inappropriate for the workplace.
4.5 Safe Workplace
While at the Premises and the Site,System Owner and its Contractors will take all
reasonable and customary steps to ensure the safety of workers and visitors in accordance
with all applicable laws. System Owner shall cause the work to be carried out in
accordance with Host Customer's published safety program,a copy of which is appended
hereto as Exhibit E.
4.6 Installation of Meter
System mer shall install the Meter at the Delivery Point to measure the amount
of Output delivered by the System to Host Customer. System Owner will own, operate
and maintain the Meter during the Service Term at its own expense.
4.7 Net MeterinAMWements
4.7.1 System Owner Notification to Make Net Metering Arrangements
System Owner shall provide Host Customer with timely notification that Host
Customer must make Net Metering Arrangements with the Host Utility in order fnr System
Owner to be able to complete the installation and testing of the System. Within five(5)
business days of such notification from System Owner,Host Customer shall enter into Net
Metering Arrangements by executing such agreements as may be required by Host Utility
to permit the interconnection of the System with the Site Electrical System and to allow
any Output of the System not consumed by the Host Customer to flow to the Host Utility.
Host Customer shall promptly provide copies of such agreements and arrangements to
System Owner when executed.
4.7.2 Rgquired Documentation
System Owner shall provide Host Customer with documentation under System
Owner's control that the Host Utility requires by its Tariff to demonstrate that the System
complies with the requirements of the Host Utility's interconnection standards.
4.8 Internet Access
Consistent with the System Description and Specifications in Exhibit B,Host
Customer shall make available to System Owner such internet access at the Premises and
the Site as System Owner shall require for the continuous remote monitoring of the
System's operation and performance. System Owner will pay for any costs associated
with Internet upgrades that are directly attributed to the System.
4.9 Notification of Service Commencement Date
Upon the successful completion of the installation and testing of the System and
Host Utility approval to operate the System, System Owner shall provide Host Customer
with notice that the System is ready to deliver output and of the Service Commencement
Date on the form in Exhibit F.
ARTICLE V
OPERATION AND MAINTENANCE OF THE PREMISES,SYSTEM,
SITE,AND SITE ELECTRICAL SYSTEM
5.1 System Owner Operation,Maintenance and Rgair of Syg!gM
5.1.1 System Owner shall maintain the System in good worldng condition,
ordinary wear and tear,and shall operate the System in accordance with all applicable laws,
regulations and ordinances.
5.1.2 If the System is damaged due to the negligence or intentional misconduct
of Host Customer, then Host Customer shall be responsible for such costs incurred by
System Owner for the repair or replacement of the System to the extent of its negligence
or intentional misconduct.
5.2 System Owner Operation and Maintenance Contractors
5.2.1 Contractor Requirements
System Owner may engage Contractors to operate,maintain and repair the System.
System Owner shall require any such Contractors to have all licenses, permits and
registrations and obtain inspections required for such service providers, and any such
Contractors shall maintain insurance as required by Article XVI.
5.2.2 Identification of Contractors to Host Customer
System Owner shall provide Host Customer with (a) the identification of all
Contractors with whom System Owner contracts to operate, maintain and repair the
System,and(b)evidence that such Contractors have obtained and will maintain insurance
as required by Article XVI. All Contractors shall follow Host Customer's Premises access
protocols,including sign-in,security and safety orientation,before commencing any work
at the Premises.
5.2.3 Host Customer Richt to Remove Contractors from Site for Cause
Host Customer shall have the right to require the removal from the Site of any
Contractor or the agents, employees or subcontractors of such Contractor, who, in Host
Customer's sole judgment, exhibit unsafe work practices, unacceptable quality of
workmanship,or behavior inappropriate for the workplace.
5.2.4 Safe Workplace
While at the Premises and the Site, System Owner and its Contractors will take all
reasonable and customary steps to ensure the safety of workers and visitors in accordance
with all applicable laws. System Owner shall cause the work to be carried out in
accordance with Host Customer's published safety program,a copy of which is appended
hereto as Exhibit E.
5.3 Host Customer Operation,Maintenance and Repair of Premises and Site
5.3.1 Host Customer Responsibility and Coordination with System Owner
Host Customer shall be solely responsible for the operation,maintenance and repair
of the Premises and the Site,including any repair,maintenance or replacement of the roof
on which the System is located. Host Customer will advise System Owner in writing prior
to making any adjustments, modifications, or upgrades to the Premises or Site to ensure
that the Output of the System is not negatively impacted. The duration of any maintenance
or repair that disrupts System Output shall constitute a Disruption of Delivery on the part
of the Host Customer in accordance with Section 11.3, and shall not constitute a Non-
Delivery Period by System Owner as set forth in Section 15.1.1;provided,that if the need
for any such repair or maintenance is caused by the negligence or intentional misconduct
of System Owner,then the period required for maintenance ar repair shall not constitute a
Disruption of Delivery on the part of the Host Customer.Host Customer and System Owner
shall coordinate such activities so as to minimize disruption to the System.
5.3.2 Separate Contract to Accommodate Host Customer Site Roof Repair
If during the Term of this Agreement, Host Customer performs Site repairs or
maintenance which may include replacement of the roof on which the System is located,
Host Customer will contract separately with System Owner to disassemble, temporarily
relocate, move, and reassemble System components as necessary to coordinate with the
repairs, maintenance or replacement. System Owner will coordinate with Host Customer
to minimize the disruption of Output during such repairs,maintenance,or replacement,and
to restore the System to full capacity in a timely manner; provided, however that the
duration of the repairs, maintenance or replacement shall constitute a Disruption of
Delivery on the part of the Host Customer in accordance with the provisions of Section
11.3,and shall not constitute a Non-Delivery Period by System Owner in accordance with
the provisions of Section 15.1.1.
5.4 Host Customer Maintenance and Repair of Site Electrical System
Host Customer shall maintain the Site Electrical System in good working order,
and shall perform such other maintenance, repair and upgrades as may be required
including but not limited to such work required by the Host Utility or by applicable laws,
regulations, ordinances, and codes. Host Customer will advise System Owner in writing
Prior to making any adjustments,modifications,or upgrades to the Site Electrical System
that are likely to have a material impact on the Output to ensure that the Output of the
System is not negatively impacted.
The duration of any maintenance, repair, or upgrade that disrupts System Output
shall constitute a Disruption of Delivery on the part of the Host Customer in accordance
with Section 11.3,and shall not constitute a Non-Delivery Period by System Owner as set
forth in Section 15.1.1; provided, that if the need for any such repair or maintenance is
caused by the negligence or intentional misconduct of System Owner,then and the period
required for such maintenance or repair shall not constitute a Disruption of Delivery on the
Pad of the Host Customer. Host Customer and System Owner shall coordinate such
activities so as to minimize disruption t0 the System.
5.5 Notice of System Malfunction and Non-Interference
Host Customer shall notify System Owner immediately upon learning of(a) any
material malfunction of or damage to the System and(b)any interruption or alteration of
the energy supply to the Premises. Host Customer may not adjust,modify,maintain,alter,
service or in any way interfere with the System,except as authorized in writing by System
Owner,or in the event of an emergency if there is an imminent threat to life or property in
which case Host Customer shall give System Owner or its designated Contractor
immediate notice of such emergency. Host Customer shall be responsible for any damage
to the System that is caused by its negligent or intentional interference with the System.
5.6 Dost Customer Continuing Itesnonsibility for Net Metering
At all times during the Service Tema,Host Customer shall maintain the Net
Metering Arrangements and any other related agreements.
5.7 Host Customer Continuing ReWnsibility for Internet Access
Consistent with the System Description and Specifications in Exhibit B,Host
Customer shall make available to System Owner such internet access at the Premises and
the Site as System Owner shall require for the continuous remote monitoring of the
System's operation and performance.
VI
ACCESS AND SPACE PROVISIONS
6.1 Ad
Agate Space for Installation
Host Customer shall provide System Owner and its Contractors with adequate
space on the Premises and the Site during the Installation Period for System Owner's
installation and testing of the System,including reasonable staging and lay down areas.
6.2 Adequate Access for System Owner,Grant of License
6.2.1 Host Customer shall provide System Owner adequate access to the Premises
and the Site for System Owner's installation, operation, maintenance, and, to the extent
applicable,repair,replacement or removal of all or part of the System in accordance with
the teras herein. Host Customer shall provide, and System Owner shall have, access to
the Premises during regular business hours, outside of regular business hours only upon
reasonable advance request of System Owner,and at any time in the event of an emergency
as may be necessary for System Owner to fulfill its obligations under this Agreement. Such
access shall be subject to reasonable supervision by Host Customer as Host Customer may
require. System Owner shall use reasonable efforts to minimize disruption to Host
Customer's operations.
6.2.2 This Agreement shall constitute a non-exclusive license throughout the
Term of this Agreement granting System Owner reasonable access to, occupancy of and
use of the Premises for System Owner to exercise its rights and meet its obligations
hereunder according to the terms herein. Host Customer will insure that any other license
or other allowed use of the Premises shall not interfere with System Owner's reasonable
access hereunder.
6.2.3 As used in this Article VI access rights applicable to System Owner shall
include access for System Owner's agents,Contractors and assigns.
6.3 Access by Host Customer to System
Because the System will be located on the Premises,the Parties acknowledge that
Host Customer will have access to the Site for maintenance of Host Customer's property,
safety,security,and emergency purposes. Host Customer shall take all reasonable actions
to ensure that the operation of the System is not disrupted when Host Customer accesses
the Site, and that the System will not be damaged thereby as a result of the actions or
inactions of Most Customer,its designee(s)or invitees.
6.4 Prevention of Unauthorized Access
Host Customer, in consultation with the System Owner, shall develop and
implement, prior to the Service Commencement Date, written policies, systems and
practices to prevent unauthorized access to and trespass on the System and to prevent harm
or damage to the System or to Output.
VII
ADDITIONAL COVENANTS
7.1 +Ownership of System by System Owner
7.1.1 Host Customer and System Owner(a)intend that the System shall at all
times be the personal property of System Owner severable from the Site and the Premises
and shall not become a fixture and(b)shall each take such actions as are reasonably
required by the other Party to ensure that the System constitutes the personal property of
System Owner and shall not become a fixture.
7.1.2 If any person attempts to claim ownership of or other rights to the System
by asserting any claim against or through Host Customer,and such claim is not attributable
to any act or omission of System Owner, Host Customer agrees to protect and defend
System Owner's title to the System, at Host Customer's expense. Host Customer will at
all times keep the System free from any legal process and any lien not attributable to any
act or omission of System Owner, and will give System Owner immediate notice if any
legal process or lien is asserted or made against the System or against Host Customer where
the System may be subject to any lien,attachment or seizure by any Person.
7.2 Use of Premises
7.2.1 Host Customer intends to continue to use the Premises in a manner similar
to its present use throughout the Term, except as has been disclosed to System Owner by
Host Customer and included.in Exhibit A of this Agreement. Host Customer shall give
reasonable prior notice to System Owner of any material modification of the Premises or
change in the use of the Premises that would have an impact on the operation of the System
or on Host Customer's consumption of Output.
7.2.2 If Host Customer provides a notice to System Owner pursuant to Section
7.2.1 that it seeks to make a material modification of the Premises or to change the use of
the Premises in a way that would have an impact on the operation of the System or on Host
Customer's consumption of Output,the Parties shall attempt to amend this Agreement so
as to preserve to System Owner the economic benefits of this Agreement prior to such
modification or change. If the Parties are unable to reach agreement on an amendment
within ten (10)business days of the date Host Customer notifies System Owner of such
change or modification,System Owner shall have the right to treat such change as an Event
of Default hereunder and terminate this Agreement. In such event,(a)System Owner shall
have the right to remove the System from Host Customer's property and the Premises and
(b)Host Customer shall be liable for damages in accordance with the provisions of Article
XV,
7.3 Pbstructions
7.3.1 Host Customer shall not install or permit to be installed on the Premises(or
any other property owned or controlled by Host Customer)any physical obstruction to the
operation of the System that reduces Output.
7.3.2 In the event that any obstruction that could reasonably be expected to reduce
Output is proposed to be erected or installed on property other than the Premises or other
than property owned or controlled by Host Customer, Host Customer shall promptly
deliver to System Owner copies of any notice relating thereto received by Host Customer,
and System Owner shall have the right to intervene or to direct Host Customer to intervene
(at System Owner's expense)in any proceeding and to contest the installation or erection
of any such obstruction. In the event such obstruction is installed,(a)System Owner shall
have the right to remove the System from Host Customer's property and the Premises and
(b)Host Customer shall be liable for damages in accordance with the provisions of Article
XV.
7.4 Status of Premises and Site
7.4.1 In the event that any or all of the Premises is or becomes subject during the
Term to a new lease, security interest, lien or mortgage,Host Customer shall require that
the lessor or the holder of such security interest,lien or mortgage enter into an agreement
with System Owner, or provide an estoppel reasonably acceptable to System Owner and
the lenders,acknowledging and recognizing System Owner's rights under this Agreement
and acknowledging that the System is the personal property of System Owner severable
from the Site and not a fixture.
7.4.2 If necessary after the execution of this Agreement, Host Customer shall
from time to time grant to System Owner easements, leases, licenses, consents,
acknowledgments, and approvals and other rights System Owner reasonably requires for
the installation and testing of the System,production and delivery of Output to the Delivery
Point,and the operation and maintenance of the System under this Agreement.
7.5 Host Customer's On ggjag Ability to Perform
During the Term of the Agreement and when requested by System Owner, Host
Customer shall promptly provide reasonable evidence of creditworthiness and ability to
pay amounts due under this Agreement.
VIII
ENVIRONMENTAL CREDITS AND SYSTEM ATTRIBUTES
8.1 System Attributes
System Owner shall at all times during the Term of this Agreement own and retain
exclusive rights to any and all attributes,products or economic benefits attributable to the
System or to the production and delivery of Output, including but not limited to
Environmental Credits,Capacity and Ancillary Services.
8.2 Environmental Credits
All Environmental Credits, whether available directly or indirectly, shall be and
shall remain the property of System Owner for the Service Term. System Owner shall
have sole use of such Environmental Credits and shall be permitted to use such
Environmental Credits for itself, or to sell, grant, convey, or otherwise dispose of such
Environmental Credits to any other Person, in System Owner's sole discretion. Host
Customer hereby grants,makes and conveys to System Owner an absolute and irrevocable
assignment of any and all right,title and interest Host Customer may at any time have in
or to any Environmental Credits,
8.3 Documentation
At System Owner's request, Host Customer will complete any and all
documentation required to substantiate the existence, nature, and/or quantity of
Environmental Credits produced by the System, or required to validate System Owner's
rights to and ownership of the Environmental Credits.
IX
PURCHASE AND SALE OF OUTPUT
On and after the Service Commencement Date and through the end of the Service
Term, System Owner shall deliver and sell to Host Customer to the Delivery Point, and
Host Customer shall accept delivery and purchase at the Delivery Point,all of the Output
at the price and the terms and conditions set forth in Exhibit C of this Agreement.
4.1 Solar Electricity Price
Beginning on the Service Commencement Date,the Solar Electricity Price paid by
Host Customer for Output shall be as specified in Exhibit C.
9.2 Other Electricity Purchases
9.2.1 System to Reduce Other Electricity Purchases
The Parties intend that the Output will reduce Host Customer's purchase of
electricity from the Host Utility or retail electricity suppliers, and acknowledge that the
System is not expected to meet the entirety of Host Customer's demand for electricity. To
the extent that at any time the Output is insufficient to meet all of Host Customer's
electricity demand,Host Customer will be responsible for purchasing electricity from such
other sources. The Parties further intend that Host Customer's obligations to purchase
Output shall not be reduced by the installation of another power source(s)on the Premises.
9.2.2 Other Electricity Purchase Agreements
Host Customer shall be responsible for maintaining and fulfilling all obligations to
any of its other electricity service providers, including but not limited to any competitive
electric supplier of generation or transmission services to Host Customer, and for meeting
all requirements imposed by any such electricity service provider and by any federal,state
or local government agencies with respect to such services and to the purchase of the
output.
9.3 Sale Only to Host Customer
In no event shall System Owner sell, or be deemed to have sold, Output to any
Person other than Host Customer.
9.4 Host Customer Net Metering Obligation
The Parties recognize and acknowledge that,from time to time,(a)the Output may
exceed Host Customer's demand for electricity or (b) Host Customer will otherwise be
unable to consume Output delivered to the Delivery Point. Host Customer shall
nonetheless accept and take title to the Output at the Delivery Point and shall have in place
and maintain Net Metering Arrangements as required by Tariff or by the Host Utility to
deliver to the Host Utility any Output that exceeds Host Customer's demand for,or ability
to consume, electricity; provided that if, through no cause attributable to Host Utility or
System Owner, Host Customer fails to enter into, fails to maintain or otherwise fails to
comply with the required Net Metering Arrangements, and as a result of such failure,
System Owner cannot deliver Output to Host Customer,then such failure shall constitute
a Disruption of Delivery and an Event of Default, and Host Customer shall be liable to
System Owner for the electricity that the System produced, or was capable of producing,
and that would otherwise have been delivered to Host Customer as Output,in accordance
with the provisions of Article XV.
9.5 Taxes
Host Customer shall either pay or reimburse System Owner for any and all taxes
assessed on the generation,sale,delivery or consumption of electric energy produced by
the System. For purposes of this Section,"Taxes"means any state and local ad valorem,
occupation,generation,privilege,gross receipts, sales,use,consumption,excise,
transaction, and other taxes,regulatory fees,surcharges or other similar charges,but shall
not include any income taxes or similar taxes imposed on System Owner's revenues due
to the sale of energy under this Agreement,which shall be System Owner's
responsibility.
9.6 Invoice and Pa
vment
Following the end of each calendar month during the Service Term,System Owner
shall prepare and provide Host Customer an invoice for the Output delivered in the prior
month(or partial month if the Service Commencement Date is not the first day of a month).
Deliveries during the month of an anniversary date shall be prorated as to the applicable
Solar Electricity Price. The amount due for the Output shall be determined by multiplying
the applicable Solar Electricity Price by the Output delivered(or deemed delivered)to Host
Customer during such month, and each invoice shall set forth in reasonable detail the
calculation of all amounts owed. A sample invoice calculation is shown in Exhibit D.
Delays in the issuance of any such invoice shall not constitute any waiver of Host
Customer's obligation to pay once Host Customer has actually received and invoice from
System Owner,or System Owner's right to collect,any payment under any such invoice.
9.6.1 Payments
Subject to its contest rights set forth in Section 9.6.3, Host Customer shall pay the
full amount of each invoice on or before the twentieth (2015)day following issuance thereof
("Due Date"). All payments made by Host Customer under this Agreement shall be by
electronic funds transfer pursuant to the instructions set forth in Exhibit D attached hereto,
or by check payable to System Owner (unless otherwise directed in writing by System
Owner) at the address for notices set forth in Section 18.3,as such instructions or address
may be modified by System Owner by notice to Host Customer in writing.
9.6.2 Late PaMent Fees
If any part of a monthly payment is not made by Host Customer within twenty-five
(25)days following the Due Date,Host Customer agrees to pay System Owner a laze fee
that shall accrue on the basis of one percent(15/6)per month(or such lower percentage as
and if required by applicable law)on the amount of such late payment("Late Fee").
9.6.3 Contest Rights
Host Customer shall notify System Owner in writing within five(5)business days
of issuance of the monthly invoice of any portion of the invoiced amount that it has a
reasonable basis to dispute in accordance with Section 18.1 and the basis for such Dispute.
The contested portion of any invoiced amount shall not relieve Host Customer of its
obligation to pay the uncontested portion of such invoice as set forth in Section 9.6.1.
ARTICLE X
METERING
During the Service Term, System Owner shall, at its own expense, own, operate
and maintain the Meter and provide necessary Meter related services.
10.1 Meter Reading
System Owner shall cause the Meter to be read at the end of each calendar month,
and shall cause the Output delivered to Host Customer to be recorded. The reading shall
be used as the basis for calculating the amount to be invoiced pursuant to Section 9.6 under
this Agreement.
10.2 Alternative Measures in Event of Non ili
If the Meter is out of service or registers inaccurately,then the measurement of the
Output shall be determined by the following alternatives, in the following order. (a) any
alternative or back-up meter that System Owner or Host Utility may have installed, if
registering accurately; (b) a mathematical calculation, if upon a calibration test of such
Meter a percentage error is ascertainable; or (c) estimates of deliveries of Output by
reference to quantities measured during periods of similar conditions when such Meter was
registering accurately.
10.3 Cali tion
10.3.1 System Owner shall notify Host Customer of the time it will test and
calibrate the Meter and Host Customer may witness such testing. Host Customer may
request that System Owner to re-test and re-calibrate the Meter,and any such testing shall
be at Host Customer's expense if such tests indicate that the Meter is accurate within plus
or minus two percent(2%). Host Customer may witness any re-tests.
10.3.2 If,upon testing, any Meter is found to be accurate or in error by not more
than plus or minus 2 percent (+20/o), then previous recordings of such Meter shall be
considered accurate in computing deliveries of Output hereunder,but such Meter shall be
promptly adjusted to record correctly.
10.3.3 If, upon testing, any Meter shall be found to be inaccurate by an amount
exceeding plus or minus 2 percent(+20/o), then such Meter shall be promptly repaired or
adjusted to record properly and any previous readings from such Meter used to compute
invoices for Output shall be corrected to zero error. If no reliable information exists as to
the period over which such Meter registered inaccurately,it shall be assumed for purposes
of correcting previous invoices that such inaccuracy began at a point in time midway
between the testing date and the next previous date on which such Meter was tested and
found to be accurate.
10.3.4 If upon testing, any Meter shall be found to be inaccurate by an amount
exceeding plus or minus two percent(±20/o),then the payments for Output made since the
previous test of such Meter shall be adjusted to reflect the corrected readings as determined
in accordance with Section 10.3.3. If the difference in the previously invoiced amounts
minus the adjusted payment is a positive number(Meter has over-registered Output),that
difference will offset amounts owing by Host Customer to System Owner in subsequent
month(s). If the difference is a negative number(Meter has under-registered Output),the
difference shall be added to the next month's invoice and paid by Host Customer to System
Owner on the Due Date of such invoice.
ARTICLE XI
OUTPUT INTERRUPTIONS AND PERFORMANCE GUARANTEE
11.1 Intermittent Interruptions Are Exsected
Host Customer acknowledges and understands that the System, as a solar
photovoltaic system, will produce Output intermittently, and will not provide Host
Customer with an uninterrupted supply of electricity. THIS AGREEMENT PROVIDES
NO WARRANTY OR GUARANTEE TO HOST CUSTOMER OF AN
UNINTERRUPTED SUPPLY OF ELECTRICITY. System Owner shall not be liable to
Host Customer for any intermittent interruption in Output during the Term, nor shall
System Owner be responsible for Host Customer's cost of alternative supplies of
electricity during any such interruption. If delivery of Output from the System is
interrupted other than as a result of the default, negligent acts or omissions of Host
Customer or as otherwise provided in Section 11.2, System Owner will make
commercially reasonable efforts to restore Output in a timely manner.
11.2 Intemrption of Output
11.2.1 Notwithstanding anything to the contrary herein, System Owner shall have
the right to interrupt, reduce or discontinue the delivery of Output for purposes of
inspection,maintenance,repair,replacement,or alteration of the System,or at the direction
of authorized govenamental authorities or electric utilities. Other than in the event of an
unexpected interruption or in the event of an emergency, System Owner shall give Host
Customer notice prior to an interruption of Output and an estimate of the expected duration
of the interruption.
11.2.2 System Owner shall not be required to supply Output to Host Customer at
any time System Owner reasonably believes the Site or Site Electrical System to be unsafe,
but in no event will System Owner have any responsibility to inspect or approve the Site
Electrical System. Similarly, Host Customer, should it deem System to be inan unsafe
condition,shall have the right to direct System Owner to disconnect System,or,in the case
of imminent danger caused by such unsafe condition, Host Customer may disconnect
System from its Site or Site Electrical System without penalty under this Agreement. In
such an occurrence, Host Customer shall notify System Owner of said unsafe condition
and of the emergency disconnection without delay.
11.3 Disruption of Delivery
In the event that System Owner is capable of generating and delivering Output to
Host Customer,but Host Customer fails to accept delivery of such Output(a"Disruption
of Delivery"),Host Customer agrees to pay System Owner for such Output as follows:
11.3.1 Payments that Host Customer would have made to System Owner for
Output that would have been produced during the period of the Disruption of Delivery,as
determined by historic billing data or as represented by the National Renewable Energy
Laboratory PV Watts modeling software given the System attributes during the period of
Disruption of Delivery,
11.3.2 Beginning on the fifth (P)day following the commencement of the
Disruption of Delivery,revenues that System Owner would have received under any state
solar incentive program and any other assistance program with respect to Output that would
have been Produced during the period of the Disruption of Delivery;and
11.3.3 Beginning on the fifth (Y') day following the commencement of the
Disruption of Delivery, revenues from Environmental Credits that System Owner would
have received with respect to Output that would have been produced during the period of
the Disruption of Delivery with due consideration to compliance fee payments to
governmental authorities that may be caused by the Disruption of Delivery.
9.6. 11.3.4 Payments will be made in accordance with the terms of Section
11.4 Cost to Restore Service Following Interruption
System Owner shall bear any costs associated with restoring service following any
interruption of the supply of Output from the System as a result of System Owner's
operation of the System. Host Customer shall bear the costs associated with the restoration
of the delivery of Output if an interruption is caused by the actions or inactions of Host
Customer or the condition of the Premises,Site or Site Electrical System.
11.5 Extended Performance Guarantee
11.5.1 System Owner guarantees that during the fust fifteen (15_) years of
operation occurring after the date that Service Commencement Date is achieved, the
System will generate no less than the minimum number of kWh's identified in Exhibit G
"Minimum Output Guarantee"for each annual period
11.5.2 In the event that System energy output is less than the specified minimum
kWhs for the 365 day annual period in question, System Owner shall pay Host Customer
One Time Damages amount computed by multiplying the difference in the minimum
energy output guarantee shown in Exhibit G and the actual kWh production by the
difference between the then current solar off-settable electricity rate and the Power
Purchase Agreement raze from Exhibit C;
11.5.3 In the event that the actual output of the System is below the minimum
output guarantee for an annual period, commencing on the day that Service
Commencement Date is achieved, Host Customer shall notify System Owner pursuant to
Agreement Section 18.3 "Notices"and state the number of actual kWh's produced by the
System for the annual period in question and show all calculations associated with the
Payment System Owner must make to Host Customer pursuant to Agreement Section
11.5.2 above. In addition,Host Customer will provide any necessary payment instructions
with such notification. System Owner shall pay Host Customer within thirty(30)calendar
days after receiving Host Customer's notice of payment due and supporting calculations.
ARTICLE XII
SYSTEM PURCHASE OPTIONS
12.1 Purchase Option
12.1.1 Provided that Host Customer has fulfilled all obligations to System Owner
under this Agreement,at the expiration of the tenth(1 Oa')year of Service Term,and at the
expiration of the Service Term,Host Customer shall have the option to purchase the System
by notifying System Owner in writing at least ninety(90)days prior to the end of the tenth
(I Oa')year of the Service Term,or at least ninety(90)days prior to the end of the Service
Term that Host Customer intends to exercise its option under this Section 12.1.
Should any unanticipated tax significantly increase the power price Host Customer
expects to pay under this Agreement,and the system has been operating for more than six
(6)years,Host Customer shall have the right to purchase the System from System Owner
at fair market value.
12.1.2 If Host Customer exercises its option under this Section 12.1, Host
Customer shall pay System Owner an amount equal to fair market value for the System
and its Output.
12.1.3 Upon Host Customer's payment for the System, System Owner shall
fiirnish the System to Host Customer, including all components thereof and operation
manuals, in the condition at the time of determination of the fair market value, subject to
normal wear and tear.
12.1.4 The term "fair market value" as used herein shall mean (i) the price that
would be negotiated in an arm's-length, free market transaction, for cash, between an
informed, willing seller and an informed, willing buyer(other than the user currently in
possession), neither of whom is under compulsion to complete the transaction, for the
purchase of the System as removed from the Site at the date of determination,de-installed,
packed, crated and ready for shipment to such buyer or,if higher, as installed on the Site
and(ii)as determined by the mutual agreement of the Parties. If unable to agree,the Parties
shall select a nationally recognized independent appraiser with experience and expertise in
the solar photovoltaic industry to value the System; such valuation to be binding absent
fraud or manifest error. The costs of the appraisal shall be borne equally by the Parties. If
the Parties are unable to agree on the selection of an appraiser, such appraiser shall be
selected by the two proposed appraiser firms.
12.1.5 Transfer to Host Customer
Upon transfer of ownership of the System to Host Customer, System Owner shall
have no further obligation with respect to the performance, installation, operation,
maintenance or repair of any part or component of the System;provided,however,System
Owner agrees to pass through and to transfer to Host Customer any applicable
manufacturers' warranties provided on the System,to the extent that such warranties are
transferable.
12.1.6 Non-Election and Removal
12.1.6 If Host Customer does not purchase the System pursuant to Section 12.1,or
if System Owner and Host Customer do not agree to renew this Agreement pursuant to
Section 2.2,System Owner shall,within ninety(94)days after the end of the Service Term,
remove the System from the Site at its expense including the reasonable expense of
repairing any adverse impact such removal directly causes to the Site or the Premises.
ARTICLE XIII
REPRESENTATIONS
13.1 Host Customer RoMpgt1fions
Host Customer makes the following representations and warranties to System
Owner:
13.1.1 Host Customer is duly authorized and has the power to enter into this
Agreement and perform its obligations hereunder.
13.1.2 Host Customer has all the rights required to enter into this Agreement and
perform its obligations hereunder, and has obtained all necessary consents, if any, from
third parties including any mortgagee.
13.1.3 This Agreement is enforceable against Host Customer in accordance with
its terms and does not conflict with or violate the terms of any other agreement to which
Host Customer is a party, including,if applicable, any agreement pursuant to which Host
Customer leases,occupies,or has financed the Premises or the Site.
13.1.4 Host Customer has no knowledge of any facts or circumstances that could
materially adversely affect its ability to perform its obligations hereunder including its
creditworthiness pursuant to Section 7.5.
13.1.5 The information provided to System Owner by Host Customer pursuant to
this Agreement as of the Effective Date is true and accurate in all material respects
including but not limited to: data concerning energy usage for the Premises; and
construction drawings for the Premises in existence as of the Effective Date.
13.1.6 Host Customer shall use its best efforts to satisfy all conditions precedent
in Section 3.1.
13.2 System Owner Reuresentations
System Owner makes the following representations and warranties to Host
Customer:
13.2.1 System Owner is duly authorized and has the power to enter into this
Agreement and perform its obligations hereunder.
13.2.2 System Owner has all the rights required to enter into this Agreement and
perform its obligations hereunder, and has obtained all necessary consents, if any, from
third parties including any mortgagee.
13.2.3 This Agreement is enforceable against System Owner in accordance with
its terms and does not conflict with or violate the terms of any other agreement to which
System Owner is a party.
13.2.4 System Owner has no knowledge of any facts or circumstances that could
materially adversely affect its ability to perform its obligations hereunder including its
creditworthiness.
13.2.5 The information provided to System Owner by Host Customer pursuant to
this Agreement as of the Effective Date is true and accurate in all material respects,
13.2.6 System Owner shall use its best efforts to satisfy all conditions precedent in
Section 3.1.
ARTICLE XIV
FORCE MAJEURE
14.1 Definition of Force MajeureForce Majeure Events
Force Majeure means any circumstance not within the reasonable control,directly
or indirectly,of the Party affected,but only if and to the extent that(a)such
circumstance,despite the exercise of due diligence,cannot be or be caused to be
prevented,avoided or removed by such Party,(b)such event is not due to such Party's
negligence or intentional misconduct,(c)such event is not the result of any failure of
such Party to perform any of its obligations under this Agreement,(d)such Party has
taken all reasonable precautions,due care,and reasonable alternative measures to avoid
the effect of such event and to mitigate the consequences thereof,and(e)such Party has
given the other Party prompt notice describing such event,the effect thereof and the
actions being taken to comply with this Agreement. Subject to the foregoing conditions,
Force Majeure Events may include:strikes or other labor disputes,other than strikes or
labor disputes solely by employees of the Party declaring the Force Majeure Event or as a
result of such Party's failure to comply with a collective bargaining agreement;adverse
weather conditions and other acts of nature;earthquakes;and riot or civil unrest;
provided,that Force Majeure Events shall not include any inability to make any payments
that are due hereunder or to any third party or to procure insurance reqs to be
procured hereunder.
14.2 No Default
Neither System Owner nor Host Customer shall be considered to be in default in
the performance of its obligations under this Agreement to the extent that performance of
any such obligation is prevented or delayed by a Force Majeure Event.Not withstanding
any provision herein to the contrary, the Host Customer shall not be obligated to make
payments under this Agreement for any period during which the System Owner is unable
to deliver Output to the Host Customer by reason of a Force Majeure Event.
14.3 Notice and Cure
If a Party is prevented or delayed in the performance of any such obligation by a
Force Majeure Event,then such Party shall immediately provide notice to the other Party
of the circumstances preventing or delaying performance and the expected duration
thereof. Such notice shall be confirmed in writing as soon as reasonably possible. The
Party affected by a Force Majeure Event shall use commercially reasonable efforts to
remove or repair the cause of the Force Majeure Event and shall resume performance of its
obligations as soon as reasonably practicable.
14.4 Ternunation for Force Majeure
Either Party shall be entitled to terminate this Agreement upon ten(10)days prior
written notice to the other Party if any Force Majeure Event affecting the other Party has
been in existence for a period of forty-five (45) consecutive days or longer, unless such
Force Majeure Event ceases prior to the expiration of such forty-five(45)day period.
ARTICLE XV
DEFAULT,REMEDIES AND LIMITATIONS,
INDEMNITY,RELEASE AND DISCLAIMER
15.1 Default.
Each Party(the"Defaulting Party")shall be liable to the other Party(the"Non-
Defaulting Party)for the following"Events of Default."
15.1.1 Failure to Perform or to Meet a Material Obligation
(a) System Owner's unexcused failure to provide any Output following the
Service Commencement Date for a period of at least sixty(60)consecutive days during the
Service Term ("Non-Delivery Period"); provided that the Non-Delivery Period shall not
include any period during which the System is not operating due to a Force Majeure Event
or any period during which the Host Customer is in default hereunder or otherwise cannot
accept delivery of Output, and such periods shall interrupt any calculation of consecutive
days. and provided, further,that System Owner's failure to deliver Output following the
Non-Delivery Period shall not be a default for so long as System Owner,at its option,pays
to Host Customer on a monthly basis in arrears the positive difference,if any,between the
Solar Electricity Price Host Customer would have paid for Output during the Non-Delivery
Period and the rate for electricity service from Host Utility in effect at the time,until such
time as System Owner restores deliveries of Output to Host Customer.
(b) Host Customer's failure to pay an invoice following the Due Date,and such
failure continues for a period of thirty(30)days after System Owner provides written notice
of such nonpayment to Host Customer.
(c) Host Customer's modification or change in use of the Premises without
System Owner's prior written consent in a way that will adversely affect the System,failure
to keep the System free from legal process or to accommodate a modification or change in
use of the Premises,failure to obtain an acknowledgement from a financial entity that the
System is a fixture,or failure to demonstrate its ability to perform,all pursuant to Articles
VI and VII.
(d) Host Customer's Disruption of Delivery pursuant to Section 11.3.
(e) Host Customer's failure to remove hazardous materials pursuant to
Section 4.2.3.
(f) Host Customer's failure to maintain the Premises, Site and Site Electrical
System pursuant to Sections 5.3 and 5.4.
(g) Host Customer's failure to maintain the Net Metering Arrangements
pursuant to Section 5.6.
(h) Host Customer's failure to maintain the internet access pursuant to Section
5.7.
(i) Notice and Cure. Notwithstanding anything to the contrary herein,a Party's
failure to perform fully any material obligation under a provision of this Agreement
including but not limited to those provisions explicitly set forth in this Section 15.1.1,shall
not constitute an Event of Default unless and until either (a) such failure continues for a
period often(10)business days after written notice of such nonperformance from the other
Party or(b)if the nonperforming Party commences an action to cure such failure to perform
within such ten(10)business day period,and thereafter proceeds with all due diligence to
cure such failure, but such failure is still not cured within thirty (30) days after the
expiration of the initial ten(10)business day period.
15.1.2 Material Misrenzesentation
Representations, warranties and other statements made by a Party that
misrepresents a material fact as of the Effective Date or thereafter, and such
misrepresentation has a material adverse effect on the other Party that is not cured within
ten (10) business days from the earlier of (a) notice from the Party affected by the
misrepresentation and (b) the discovery or determination by a Party of its
misrepresentation; provided, that if the Party that has made the misrepresentation
commences an action to cure such misrepresentation within such ten (10) business day
period,and thereafter proceeds with all due diligence to cure such failure,the cure period
shall extend for an additional thirty (30) days after the expiration of the initial ten(10)
business day period.
15.1.3 Bankr ipt v
A Party(a)voluntarily or involuntarily files or has filed against it a bankruptcy or
other similar petition, (b) enters into an assignment of its assets for the benefit of its
creditors or(c)otherwise is unable to pay its debts as they become due.
15.2 Remedies.
Upon the occurrence of,and during the continuation without cure of,an Event of
Default,the Non-Defaulting Party shall have the option,but not the obligation,to
terminate this Agreement,and the Defaulting Party shall be liable to the Non-Defaulting
Party for damages for Default.
15.2.1 If a Host Customer Event of Default occurs, (i) System Owner shall have
the right to terminate this Agreement upon thirty (30) days prior written notice to Host
Customer, and promptly following such termination, shall have the right to remove the
System from the Premises, and (ii) Host Customer shall be liable to System Owner for
actual,direct damages. At all times following an Event of Default by the Host Customer
until the termination of this Agreement, System Owner shall have the right, but not the
obligation, to deliver the Output to the Host Customer, and the Host Customer shall be
obligated to purchase and pay for such Output in accordance with this Agreement.
15.2.2 If a System Owner Event of Default occurs,then Host Customer shall have
the right to terminate this Agreement upon thirty(30)days prior written notice to System
Owner. Following such termination, System Owner shall have the right to remove the
System from the Site within thirty (30) days after such termination, and shall promptly
make or have made any repairs to the Site to the extent necessary to repair any adverse
impact such removal causes to the Site.
15.2.3 Host Customer shall be liable to System Owner for any actual, direct
damages, including but not limited to lost revenues for the sale of Output due to a
Disruption of Delivery, cause by a Host Customer Event of Default. Subject to ordinary
wear and tear of the System,Host Customer agrees to pay System Owner for the reasonable
costs and expenses relating to any repairs to, direct or indirect halm to, or loss of the
System,to the extent resulting from negligence or intentional misconduct of Host Customer
or any of its contractors, agents, tenants, employees, partners, owners, subsidiaries,
affiliates or invitees, or resulting from the failure of Host Customer to reasonably protect
the System from trespass or other unauthorized access as provided herein.
15.2.4 System Owner shall be liable to Host Customer for any actual, direct
damages caused by a System Owner Event of Default. System Owner agrees to pay Host
Customer for the reasonable costs and expenses relaxing to any repairs to,direct or indirect
harm to,or loss of the Site or Host Customer's personal property or fixtures on the Site,to
the extent resulting from negligence or intentional misconduct of System Owner or any of
its contractors, second-tier contractors, agents, employees, partners, owners, subsidiaries
or affiliates.
15.2.5 Limitation of Liability
While the Defaulting Party shall be liable to the Non-Defaulting Party for actual,
direct damages caused by an Event of Default, neither Party shall be liable to the other
Party for any special,indirect or consequential damages arising out of the performance or
non-performance of this Agreement, whether caused by negligence, tort, strict liability,
breach of contract, or breach of warranty.
15.2.6 Reservation of Rights
Neither termination nor the exercise of any other right or remedy by a Non-
Defaulting Party hereunder shall eliminate the Non-Defaulting Party's right to pursue any
other remedy given under this Agreement now or hereafter existing at law, in equity or
otherwise.
15.3 Mutual General Indemnity
To the maximum extent permitted by law, each Party hereto (the"Indemnifying
Party") shall defend, indemnify and hold harmless the other Party and the directors,
officers,shareholders,partners,agents and employees of such other Party,and the affiliates
of the same (collectively, the "Indemnified Parties"), from and against all loss, damage,
expense and liability in connection with this Agreement (including court costs and
reasonable attorney's fees)to the extent caused by, or arising out of,the negligent acts or
omissions of the Indemnifying Party, or the failure of the Indemnifying Party to comply
with the provisions of this Agreement.
15.4 Defense of Claims
An Indemnifying Party shall have the right to defend an Indemnified Party by
counsel (including insurance counsel) of the Indemnifying Party's selection reasonably
satisfactory to the Indemnified Party,with respect to any claims within the indemnification
obligations hereof The Parties shall give each other prompt written notice of any asserted
claims or actions indemnified against hereunder and shall cooperate with each other in the
defense of any such claims or actions. No Indemnified Party shall take any action relating
to such claims or actions within the indemnification obligations hereof without the prior
written consent of the Indemnifying Party, which consent shall not be unreasonably
withheld,and no Indemnifying Party shall settle any such claims without the Indemnified
Party's prior written consent,unless the settlement includes a full and unconditional release
of claims against the Indemnified Party.
15.5 Release of Liens and Claims
So long as Host Customer has paid all amounts that become due and owing to
System Owner hereunder,System Owner shall hold harmless Host Customer from all liens
and claims filed or asserted by System Owner's independent contractors, second-tier
contractors or other third parties against Host Customer or the Premises for services
performed or material furnished to System Owner by such parties.System Owner shall,at
no cost to Host Customer,promptly release, discharge or otherwise remove any such lien
or claim by bonding,payment or otherwise and shall notify Host Customer of such release,
discharge or removal. If System Owner does not timely cause any such lien or claim to be
released,discharged or otherwise removed,Host Customer shall have the right(buff not the
obligation)to pay all sums necessary to obtain releases,discharges or removals(including
the settlement of any lien or claim). In such event, Host Customer shall have the right to
deduct all amounts so paid (plus reasonable attorneys' fees) from amounts due System
Owner hereunder. Alternatively, upon reasonable demand by Host Customer, System
Owner shall reimburse Host Customer for such amounts
15.6 Disclaimer of Warranties
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT,NEITHER
PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO
THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER (INCLUDING ANY
SERVICES, GOODS, MATERIALS OR OTHER ITEMS SUPPLIED HEREUNDER),
INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY
PURPOSE.
ARTICLE XVI
INSURANCE
16.1 System Owner's Insurance
16.1.1 System Owner's Insurance Coverage
At all times relevant to this Agreement, System Owner shall maintain (or shall
cause its Contractors to maintain), with a company or companies licensed or qualified to
do business in the State Minnesota and rated A/VIII or above by A.M.Best,the following
insurance coverage:
(a) Workers' compensation insurance in compliance with appropriate federal and
State of Minnesota laws, and employers liability insurance with limit of not less
than$1,000,000 per accident or disease for each employee;
(b) Commercial general liability insurance, occurrence form, including, but not
limited to,contractual coverage for all of the provisions or this Agreement,with limits of
not less than $2,000,000 per occurrence and in the aggregate, $1,000,000 products and
completed operations aggregate,and$1,000,000 personal injury and advertising injury per
offense;
16.2 Host Customer's Insurance
16.2.1 Host Customer's Insurance Coverage
At all times relevant to this Agreement, Host Customer shall maintain, with a
company or companies licensed or qualified to do business in the State of Minnesota and
rated A/VIII or above by A.M. Best,the following insurance coverage:
(a) Workers' compensation insurance in compliance with appropriate federal and
State of Minnesota laws, and employers liability insurance with limit of not less
than$1,000,000 per accident or disease for each employee;
(b) Commercial general liability insurance, occurrence form, including, but not
limited to,contractual coverage for all of the provisions or this Agreement,with limits of
not less than $2,000,000 per occurrence and in the aggregate, $2,000,000 products and
completed operations aggregate;and$1,000,000 personal injury and advertising injury per
offense.
(c)Property coverage will be maintained providing replacement cost value for the
System pursuant to Section 5.1.2 and for property that is in Host Customer's care,
custody and control,with limits not less than the replacement value of the System. This
coverage shall include appropriate riders for specialty equipment as necessary.
16.2.2 Deductibles
In addition,Host Customer must provide the System Owner with a bona fide list of
all deductibles, retentions, or any other cost sharing agreements affecting this coverage.
These deductibles,retentions,or other forms of cost sharing shall not exceed$10,000.
16.3 Certificates
Both parties shall cause certified copies of all required insurance policies to be
endorsed by the insurance providers for the above coverages. Evidence of the above
insurance policies shall be provided on a continuous basis and on a standard ACORD form
25-5,providing not less than thirty(30)days notice of cancellation or material alteration.
The insurance certificate(s)shall reflect the following changes to standard language:in the
cancellation clause delete"endeavor to" and"but failure to mail such notice shall impose
no obligation or liability of any kind upon the company and/or City, its agents or
representatives". All policies listed in Section 16 shall grant each of the parties, their
successors,subsidiaries,directors,officers,agents and employees a waiver of subrogation.
The commercial general liability policy in Section 16.2.1(b)shall name the System Owner,
its successors, subsidiaries, directors, officers, agents and employees as an additional
insured. The property coverage policy in Section 16.2.1(c) shall name System Owner, its
successors, subsidiaries, directors, officers, agents and employees as a loss payee. The
insurance listed in Section 16.1.1 shall name the Host Customer, its successors,
subsidiaries,directors,officers,agents and employees as an additional insured.
ARTICLE XVII
ASSIGNMENT
17.1 Assi ent by Hgst Customer
Host Customer shall not assign this Agreement without the consent of System
Owner, such consent not to be unreasonably withheld.
17.1.1 Substitute Solar Energy Power Purchase and Sale Agreement
In the event that Host Customer terminates this Agreement during the Term because
it will no longer own or occupy the Premises, Host Customer shall use commercially
reasonable efforts to facilitate discussions between System Owner and a successor owner
or occupant of the Premises regarding the sale of Output to such new owner or occupant
pursuant to an assignment of this Agreement acceptable to System Owner. In the event
that System Owner accepts such an assignment or enters into an agreement with such new
owner or occupant for the sale of Output on terms at least as favorable to System Owner
as this Agreement, then Host Customer shall have no further liability to System Owner.
Otherwise,Host Customer shall be liable to System Owner for damages in accordance with
the provisions of Article XV.
17.2 Assipmment by System Owner
17.2.1 System Owner may, with prior written consent of Host Customer which
consent shall not be unreasonably withheld, assign its interest in and be released from its
obligations under this Agreement, as long as the assignee shall expressly assume this
Agreement and agrees to be bound by the terms and conditions hereof.
17.2.2 System Owner may, without the consent of Host Customer, (a)transfer or
assign all or substantially all of its rights and obligations hereunder to an affiliate or
successor or (b) collaterally assign to its lenders, in connection with a financing of the
System,all or any part of System Owner's rights or obligations hereunder. Host Customer
agrees to provide acknowledgements, consents, or certifications reasonably requested by
System Owner's lenders in conjunction with such financing. System Owner shall inform
Host Customer of any such transfers or assignments.
.ARTICLE XVIII
MISCELLANEOUS
18.1 Dis u s
The Parties agree to attempt to resolve any dispute, controversy or claim(each, a
"Dispute") arising out of or relating to this Agreement or any breach or alleged breach
hereof through an informal process that shall be assigned to an executive officer of each
Party. In the event such a process fails, each Party may seek appropriate relief in an
appropriate forum.
18.2 Confidentiality
18.2.1 Both Parties agree that this Agreement and its performance by both Parties
are proprietary and confidential to the Parties, and that disclosure of the terms of this
Agreement or of the costs incurred under this Agreement to third parties could place one
or both Parties at a commercial disadvantage. Subject to the other provisions of this
Section, each Party agrees not to disclose to any third parties the terms of this Agreement
or costs incurred by either Party under this Agreement without the other Party's prior
written consent,which consent shall not be unreasonably withheld,or to the extent of any
disclosure required under applicable law or court order;provided,that disclosing Party first
shall have given advance notice to other Party so as to permit said other Party to attempt to
obtain a protective order requiring that the confidential information to be disclosed be used
only for the purposes for which the order was issued or to vacate or otherwise quash the
order or other legal process. Notwithstanding the aforementioned, System Owner will
accept reasonable public disclosures as required by applicable law or public policy. System
Owner agrees to keep confidential all documents,utility bills,architectural and mechanical
plans,and any other information provided by Host Customer under this Agreement. Each
Party may disclose confidential information hereunder to its authorized representatives,
attorneys, agents, consultants and employees on a need to know basis so long as such
persons agree in writing to be bound by the confidentiality obligations of this Section
18.2.1.
18.2.2 Notwithstanding anything to the contrary set forth herein or in any other
agreement to which the Parties are parties or by which they are bound,the obligations of
confidentiality contained herein and therein,as they relate to the transaction,shall not apply
to the U.S. federal tax structure or U.S. federal tax treatment of the transaction,and each
Party(and any employee,representative,or agent of any Party hereto)may disclose to any
and all persons, without limitation of any kind, the U.S. federal tax structure and U.S.
federal tax treatment of the transaction. The preceding sentence is intended to cause the
transaction not to be treated as having been offered under conditions of confidentiality for
purposes of Section 1.64114(b)(3) (or any successor provision) of the Treasury
Regulations promulgated under Section 6011 of the Code and shall be construed in a
manner consistent with such purpose. In addition,each Party acknowledges that it has no
proprietary or exclusive rights to the tax structure of the transaction or any tax matter or
tax idea related to the transaction
18.2.3 The Parties agree and acknowledge that each Party may promote the
installation and use of the System by any means;provided,that neither Party shall identify
the other by name(or in the case of the Host Customer,by location)without the consent
of the other Party and the approval by such other Party of all written materials identifying
such other Party.
18.3 Notices
Any written notice,direction,instruction,request or other communication required
or permitted under this Agreement shall be deemed to have been duly given on the date of
receipt,and shall be delivered(a)personally to the Party to whom notice is to be given,(b)
by electronic mail to the Party to whom notice is to be given (provided receiving Party
issues an electronic mail receipt acknowledgment),(c)by a recognized overnight delivery
service to the Party to whom notice is to be given,or(d)to the Party to whom notice is to
be given,by first class registered or certified mail,return receipt requested,postage prepaid
(with additional notice by regular mail),and addressed to the addressee at the address stated
opposite its name below,or at the most recent address specified by written notice given to
the other Party in the manner provided in this Section 18.3.
If to System Owner:
New Energy Equity LLC
705 Melvin Ave Suite 100
Annapolis MD 21401
If to Host Customer:
City of Golden Valley
7800 Golden Valley Road I Golden Valley,MN 55427
Attention:Eric Seaburg,E.I.T. I Engineer I ESeaburg@goldenvalleymn.gov
18.4 Applicable Law and Jurisdiction. Waiver
18.4.1 This Agreement is made and shall be interpreted and enforced in accordance
with the laws of Minnesota. The Parties hereby consent and submit to the personal
jurisdiction of the courts of Minnesota.
18.4.2 EACH OF SYSTEM OWNER AND HOST CUSTOMER HEREBY
WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR
ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS TRANSACTION.
18.5 Entire Agi'eement
This Agreement and any documents expressly incorporated herein by reference
shall constitute the entire Agreement between the Parties regarding the subject matter
hereof and supersedes all prior agreements, understandings, representations, and
statements, including any marketing materials and sales presentations whether oral or
written, There are no agreements,understandings,or covenants between the Parties of any
kind, expressed or implied, ar otherwise,pertaining to the rights and obligations set forth
herein that have not been set forth in this Agreement.
18.6 Amendments and Modifications
No amendments or modifications of this Agreement shall be valid unless evidenced
in writing and signed by duly authorized representatives of both Parties.
18.7 Invalidity
The invalidity or unenforceability, in whole or in part,of any portion or provision
of this Agreement will not affect the validity and enforceability of any other portion or
provision hereof. Any invalid or unenforceable portion or provision shall be deemed
severed from this Agreement and the balance of this Agreement shall be construed and
enforced as if this Agreement did not contain such invalid or unenforceable portion or
provision. Notwithstanding the provisions of the preceding sentence, should any term or
provision of this Agreement be found invalid or unenforceable, the Parties shall
immediately renegotiate in good faith such term or provision of this Agreement to
effectuate the same intent and to eliminate such invalidity or unenforceability.
18.8 Counterpart Execution
This Agreement may be executed and delivered by the Parties in any number of
counterparts, each of which when so executed and delivered shall be an original, but all
such counterparts shall together constitute but one and the same instrument.
18.9 Neutral interpretation
The Parties acknowledge that this is a negotiated Agreement and, in the event of
any dispute over its meaning or application,this Agreement shall be interpreted fairly and
reasonably and neither more strongly for,nor more strongly against,either party.
18.10 H§4W
Any headings or captions contained in this Agreement are for reference purposes
only and are in no way to be construed to interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof
18.11 No Waiver
No waiver of any of the terms and conditions of this Agreement shall be effective
unless in writing and signed by the Party against whore such waiver is sought to be
enforced. Any waiver of the terms hereof shall be effective only in the specific instance
and for the specific purpose given. The failure of a Party to insist,in any instance,on the
strict performance of any of the terms and conditions hereof shall not be construed as a
waiver of such Party's right in the firture to insist on such strict performance.
18.12 Survival
Any provisions that are necessary to give effect to the intent of the Parties hereunder
after the termination or expiration of this Agreement shall survive the termination or
expiration of this Agreement.
IN WITNESS WHEREOF,the duly authorized representatives of the Parties have
each executed this Solar Energy Power Purchase and Sale Agreement, as of the Effective
Date.
New Energy EquW LLC
By:.�'1�
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City of Golden Valley
By:
Thomas D.Butt,City Manager
By.
Shepard M.Harris,Mayor
LIST OF EXHIBITS
Exhibit A Description of Premises and Site
Exhibit B System Description and Specifications
Exhibit C Solar Electricity Price
Exhibit D Sample Invoice and Electronic Fund Transfer Instructions
Exhibit E Host Customer Safety Program
Exhibit F Form of Notice of Installation Completion and Service Commencement
Date
Exhibit G Minimum Output Guarantee
EXHIBIT A
Description of Premises and Site
The solar installation with be located on the rooftop of City of Golden Valley street
maintenance building Detailed information for the building can be found on the exhibit
below.
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EXHIBIT B
System Description and Specifications
The 39.36 kW(DC) solar system will consist of 96 410 Watt tenK RAIS XT-A PV
Modules,a tenK RAIS Inverter Bus consisting of 72 APS micro inverters,tenK RAIS XT
PV System aluminum ballasted racking system and an Locus LGATE 320 online data
monitoring system with irradiance meter and cell temperature.
Exhibit C
Solar Electricity Price
$.08/kWh,2.5% Escalator, 15 Years
Year PPA Rate
1 $0.0800
2 $0.0820
3 $0.0841
4 $0.0862
5 $0.0883
b $0.0905
7 $0.0928
8 $0.0951
9 $0.0975
10 $0.0999
11 $0.1024
12 $0.1050
13 $0.1076
14 $0.1103
15 $0.1130
EXHIBIT D
Sample Invoice and Electronic Funds Transfer Instructions
ieNEW"EN,
-ERGYry INVOICE
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New Energy Equity LLC
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EDIT E
Host Customer Safety Program
The Host Customer shall administer a safety protocol that will include a zero tolerance
policy for touching,interfering,moving,obstructing,or otherwise interfering with the
System Owner's array and supporting infrastructure by Host Customer staff and
contractors working on behalf of the Host Customer without the written consent of the
System Owner.
Additionally,Host Customer will assess and review its safety program with System
Owner on an annual basis and will make modifications or improvements as deemed
necessary by both parties.
EXIiff F
Form of
Notice of Installation Completion and Service Commencement Date
New Energy Equity LLC ("System Owner') hereby notifies ("Host
Customer') that pursuant to the Solar Photovoltaic System Power Purchase Agreement
between the Parties dated ,2014 the System has been installed and tested
successfully and is fully operational and is ready to produce Output to be delivered to Host
Customer at the Delivery Point beginning , 2014, the Service Commencement
Date.
Invoicing calculations will be based on the following Meter readings recorded on
the Service Commencement Date:
Bui_'lding Meter Reading(kWh)
Upon receipt of this Notice of installation Completion and Service Commencement
Date please sign one of the duplicate originals of this notice and return one fully executed
original to the undersigned.
Ian Palmer CEO
New Energy Equity LLC
[Date]
[Host Customer]
[Name&Title]
[Date]
Exhibit G
Minimum Output Guarantee
Expected Minimum
Team Year Production output
Guarantee
1 75%of
56,228 Expected
2 75%of
55,947 Expected
3T 75%of
55,667 Expected
4 75%of
55,389 Expected
5 75%of
55,112 Expected
6 75%of
54,836 Expected
7 75%of
54,562 Expected
8 75%of
54,289 Expected
9 75%of
54,018 Expected
10 75%of
53,748 Expected
11 75%of
53,479 Expected
12 75%of
53,212 Expected
13 75%of
52,946 Expected
14 75%of
52,681 Expected
15 75%of
52,417 Expected
SOLAR PHOTOVOLTAIC SYSTEM
POWER PURCHASE AGREEMENT
This Solar Photovoltaic System Power Purchase Agreement ("Agreement") is
made and entered into as of January 28, 2015 ("Effective Date"), by and between NEW
ENERGY EQUITY LLC, a Maryland limited liability company, or assigns ("System
Owner"),and the City of Golden Valley,a municipal corporation located at 7800 Golden
Valley Road, Golden Valley MN 55427,Most Customer'. Each of System Owner and
Host Customer may be referred to herein as a"Party"and collectively,as the"Parties."
RECITALS
WHEREAS,Host Customer owns and controls certain property located in Golden
Valley,MN which uses electricity("Premises");
WHEREAS,System Owner is willing to design,install,own,operate and maintain
a solar photovoltaic electric generating system("System"),on Premises;
WHEREAS, the System would satisfy a portion of Host Customer's electricity
requirements at Host Customer's Premises, and System Owner desires to sell and Host
Customer desires to purchase,in accordance with the provisions hereof;all of the electricity
generated by the System("Output");
WHEREAS, Host Customer is willing to provide System Owner with access to,
and the right to occupy a portion of its property for the purpose of having the System
Owner design,install,operate and maintain the System;
WHEREAS System Owner and Host Customer agree that System Owner will
obtain and retain all Environmental Credits and all Financial Incentives and Tax Benefits
associated with the installation,ownership,operation and Output of the System;
NOW, THEREFORE, in consideration of the agreements and covenants
hereinafter set forth,the Parties hereby covenant and agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 Definitions
"Agreement"means this Solar Photovoltaic System Power Purchase Agreement,as
the same may be modified or amended from time to time in accordance with the provisions
hereof.
"Ancillary Services" means any supplemental services necessary to support the
transmission of electric power from a seller to a purchaser and available from the System
from time to time,whether existing as of the Effective Date or thereafter.
"Capacity"means electrical capacity that is dependent upon the availability and
operation of the System,measured in kilowatts.
"Contractors" means the independent contractors engaged by System Owner to
perform any of System Owner's obligations hereunder and shall include the independent
contractors subcontracted by independent contractors engaged by System Owner as set
forth in Section 4.4.
"Defaulting Party"means the Party responsible for an uncured Event of Default
"Delivery Point"means the physical location where the System connects to the Site
Electrical System.
"Dispute"means a dispute as defined in Section 18.1.
"Disruption of Delivery"means a disruption of delivery when the System Owner
is capable of generating and delivering Output to Host Customer as set forth in Section
11.3.
"Due Date"means the due date that Host Customer must pay an invoice for Output
as set forth in Section 9.6.1.
"Effective Date"means the date of execution of this Agreement.
"Environmental Credits"means any and all federal,state or local renewable energy
or emissions credits, offsets, or green tags, whether related to any renewable portfolio
standard, renewable energy purchase requirement, carbon cap or trade market, or
otherwise, whether existing as of the Effective Date or enacted thereafter and whether
available to System Owner as owner of the System or producer of Output or available to
Host Customer as the purchaser or user of Output
"Event of Default"means the events set forth in Section 15.1.
"Financial Incentives and Tax Benefits"means any and all federal, state or local
rebates, tax credits, energy production credits, or depreciation incentives related to any
renewable portfolio standard or other renewable energy purchase requirement or otherwise,
whether existing as of the Effective Date or enacted thereafter and whether available to
System Owner as producer of Output or available to Host Customer as the purchaser or
user of Output.
"Force Majeure"shall have the meaning set forth in Section 14.1.
14.1. "Force Majeure Event"means the events of Force Majeure as set forth in Section
"Host Utility"means the electric distribution company serving or connected to the
Host Customer.
"Indemnifying Party" means the Party responsible for indemnifying the
Indemnified Parties as set forth in Section 15.3.
"Installation Period"means the period commencing on the satisfaction of the pre-
installation conditions of Section 3.1 and continuing to the Service Commencement Date.
"Late Fee"means the late fee that System Owner may impose on Host Customer
for payments not made by the Due Date pursuant to Section 9.6.2.
"Meter" means the standard instrument(s) and equipment installed at the Site by
System Owner as part of the System to be used to measure and record the Output delivered
to the Host Customer at the Delivery Point.
herein. "Net Metering Arrangements" shall have the meaning set forth in Section 4.7
"Non-Defaulting Party"means the Party to whom the Defaulting Party is liable in
accordance with the provisions of Article XV.
"Von-Delivery Period" means the unexcused non-delivery of Output by System
Owner as set forth in Section 15.1.1.
"Output" means, and is limited to, the electricity produced by the System and
delivered to Host Customer at the Delivery point.
"Person" means any natural person, partnership, trust, estate, association,
corporation, limited liability company, governmental authority or agency or any other
individual or entity.
"Premises"means Host Customer's property,as described in Exhibit A.
"Services" means the design, installation and testing of the System and, upon
successful completion of installation and testing,the operation,maintenance and repair of
the System, by System Operator as necessary to produce and delivery Output to Host
Customer in accordance with the terms and conditions of this Agreement.
"Service Commencement Date"means the successful completion of the installation
and testing of the System with notice to Host Customer that the System is ready to deliver
Output as set forth in Section 4.9.
"Service Term" means the period commencing on the Service Commencement
Date and continuing until the termination of this Agreement.
"Site"means the area on the Premises described in Exhibit A on which the System
Owner will install the System.
"Site Electrical System" means Host Customer's existing building electrical
systems that are owned or leased,operated,maintained and controlled by Host Customer,
and which systems are interconnected with the Host Utility.
"Solar Electricity Price"means the price specified in Exhibit C that Host Customer
shall pay System Owner for the delivery of Output.
"System" means all equipment and materials, including but not limited to
photovoltaic arrays, DC/AC inverters, wiring„ meters, tools, software, and any other
property now or hereafter installed, owned, operated, or controlled by System Owner for
the purpose of� or incidental or useful to,maintaining and modifying the use of the solar
generation system and providing Output to Host Customer at the Delivery Point. The
System is described more particularly in Exhibit B. For the avoidance of doubt,the System
specifically excludes any part of the Site Electrical System.
"Tariff' means the tariff of the Host Utility that set forth the interconnection and
net metering standards and requirements for the System to operate and for System Owner
to deliver Output to Host Customer in accordance with terms and conditions of this
Agreement.
"Term"means the period of time that this Agreement shall be in effect as set forth
in Article II.
1.2 Interpretation
In this Agreement,unless the context requires otherwise,the singular includes the
plural and the plural the singular, words importing any gender include the other gender;
references to statutes, sections or regulations are to be construed as including all statutory
or regulatory provisions consolidating,amending,replacing,succeeding or supplementing
the statute, section or regulation referred to; the words "including," "includes" and
"include" shall be deemed to be followed by the words "without limitation" or "but not
limited to"or words of similar import; references to articles, sections (or subdivisions of
sections), exhibits, annexes or schedules are to those of this Agreement unless otherwise
indicated, references to agreements and other contractual instruments shall be deemed to
include all exhibits and appendices attached thereto and all subsequent amendments and
other modifications to such instruments,and references to Persons include their respective
successors and permitted assigns.
1.3 Service Contract
The Parties intend that this Agreement be treated as a"service contract"within the
meaning of Section 7701(e)of the Internal Revenue Code.
ARTICLE H
TERM
2.1 The Term of this Agreement shall commence on the Effective Date and
shall terminate fifteen 15 ars following the Service Commencement Date, unless
terminated earlier in accordance with provisions of this Agreement.
2.2 At the time that Host Customer notifies System Owner of its election
pursuant to Section 12.1.6, Host Customer may request that System Owner agree to a
renewal of the Agreement beyond the end of the Service Term. Any agreement to renew
this Agreement shall be subject to negotiation and agreement between the Parties.
ARTICLE III
SYSTEM DETAILED DESIGN
3.1 Pmtfi- stallat on Conditions
3.1.1 Comuletion of Detailed System Design
At the time of the execution of this Agreement,Host Customer shall have provided
System Owner with all available, necessary and up-to-date Premises, Site and Site
Electrical System drawings, specifications and other documentation that System Owner
may reasonably require to develop and complete a detailed System design. For this purpose
Host Customer shall provide System Owner with access to the Premises and the Site to
verify field conditions,and shall make appropriate staff available to answer questions and
provide information required by System Owner to support the detailed design process.
3.1.2 Rgei of RpqgjEgd Third PM Authorizations
Within ten(10)days of the execution of this Agreement,Host Customer shall have
obtained or shall obtain on behalf of itself and System Owner, any and all easements,
leases,licenses,consents,acknowledgments,approvals and other rights and authorizations
from third parties,including entities or persons holding any mortgage or other lien or lease
burdening the Premises on the Effective Date, necessary for System Owner to begin
installation of the System at the Site,to install and test the System,to produce and deliver
Output to Host Customer to the Delivery Point, and to own, operate and maintain the
System under this Agreement. Host Customer shall obtain and forward the foregoing
authorizations and approvals to System Owner as each is received.
3.1.3 Receipt of all Necessary Construction and Other Permits
System Owner shall apply for,pay for, and obtain all necessary construction and
other permits from local authorities and Host Utility. Host Customer shall cooperate with
System Owner as necessary in the permitting process and shall apply directly for permits
if necessary. System Owner shall deliver copies of all permits obtained to Host Customer
upon Host Customer's request,and where applicable Host Customer shall do the same.
3.1.4 Failure to Satisfy Pre-Installation Conditions
(a) If System Owner determines in its sole discretion that a pre-installation
condition set forth in this Section 3.1 cannot be satisfied, or that the System as described
in Exhibit B cannot be installed on the Site because the roof is structurally inadequate to
support the System, the Site Electrical System is inadequate to accept the Output of the
System, or architectural and other requirements are discovered that would add to the cost
of the System, System Owner will notify Host Customer that the System cannot be
constructed as proposed, and this Agreement will terminate with neither Party having
further obligations under this Agreement;provided however,that the Parties may agree to
amend this Agreement to accommodate a revised,feasible System in which case the Parties
shall agree to a revised System design and execute an amendment to this Agreement with
revised Exhibits A,B and C.
(b) If System Owner determines that the drawings, specifications and other
documentation associated with structural calculations, electrical upgrades or other part of
the System Provided to System Owner by Host Customer pursuant to Section 3.1.1 are not
correct or complete,and that revisions thereto would add to the cost of the System,System
Owner may ask Host Customer for revised documentation or may notify Host Customer
that the System cannot be constructed as proposed and terminate this Agreement, provided
however,that the Parties may agree to amend this Agreement to accommodate a revised,
feasible System in which case the Parties shall agree to a revised System design and execute
an amendment to this Agreement with revised Exhibits A,B and C.
ARTICLE IV
SYSTEM INSTALLATION
4.1 System Installation
4.4.1 Installation Schedule
System Owner will provide Host Customer with a proposed installation schedule
and an estimated Service Commencement Date. Host Customer shall have ten (10)
business days to review and comment on the schedule,and System Owner shall revise such
accordingly if changes are required by local law,jurisdiction or best solar installation
practices; should Host Customer fail to respond in such timeframe,the proposed schedule
will be considered approved. System Owner will notify Host Customer of any material
changes to the proposed schedule and any revisions to the estimated Service
Commencement Date during the Installation Period.
4.1.2 Right of Access During Installation Period
System Owner and its Contractors shall have the right of access specified in Article
VI during the Installation Period and will coordinate installation activities with Host
Customer to minimize interference with normal operations at the Premises, to the extent
reasonably practical and without causing undue delay in the Service Commencement Date.
Any work that requires interruption of electricity to Host Customer's Premises will be
identified in the installation schedule, and System Owner or its Contractors will receive
approval from Host Customer prior to any such intemiption.
4.1.3 Installation to Specifications and Standards
Upon satisfaction of the pre-installation conditions of Section 3.1, System Owner
will begin installation at the Site. System Owner shall install,and test the System on the
Site in accordance with the technical specifications set forth in Exhibit B. System Owner
shall perform Services in a good and workmanlike manner and in compliance with all
applicable laws and regulations, including System compliance with the Host Utility's
interconnection and Tariff requirements.
4.1.4 Output During System Testing
During the Installation Period, System Owner or its Contractors may test the
System,and Host Customer shall accept delivery of any Output resulting from such testing
during the Installation Period. There shall be no charge to Host Customer for Output
delivered from the System during the Installation Period.
4.1.5 Connection of System to Site Electrical System
System Owner shall be responsible for the interconnection of the System to the Site
Electrical System and shall be solely responsible for all equipment, maintenance, and
repairs associated with such interconnection equipment in accordance with the terms and
conditions of this Agreement, Host Customer shall at all times own and be responsible for
the operation and maintenance of the Site Electrical System at and from the Delivery Point.
4.2 Hazardous Materials and Refuse
4.2.1 Host Customer Representation
Except as disclosed on Exhibit A, Host Customer represents that at the time it
executes this Agreement,it has disclosed to System Owner any and all hazardous materials
that exist at the Site or Premises in Exhibit A of this Agreement.
4.2.2 System Owner Responsibilities
During the Installation Period and thereafter,System Owner agrees and shall cause
its Contractors to agree,as follows:
(a) To take reasonable measures to reduce or mitigate noise,dust,the spread of
debris and installation materials;
(b) To remove all debris, extra materials, scaffolding, tools, machinery and
other installation materials from the Site and other work areas at the conclusion of the
Installation Period;and
(c) To use and dispose of any "hazardous materials" as defined in any
applicable federal or state environmental laws brought to the Site or the Premises in
connection with Services being performed in accordance with all applicable laws.
4.2.3 Effect of Discovery of Hazardous Materials
If System Owner or its Contractors discover any hazardous materials existing on
the Premises or the Site during the installation and testing of the System that System Owner
reasonably believes may require removal or remediation, or that otherwise impairs or
Prevents installation and testing of the System, System Owner shall promptly notify Host
Customer,and System Owner may,in its sole discretion,suspend installation or testing of
the System until such time as Host Customer has removed the hazardous materials and
remediated the Premises to System Owner's satisfaction. System Owner shall have no
responsibility or liability in respect of hazardous materials existing at the Premises(other
than any hazardous materials brought to the Premises by or on behalf of System Owner).
If Host Customer does not agree on a schedule and terms to remove the hazardous materials
which permits System Owner to resume installation within a reasonable timeframe
following the discovery of such hazardous materials at the Premises or the Site,then such
failure shall be an Event of Default, Host Customer shall be liable for damages for an
amount not in excess of the proceeds from the available insurance coverages, as a
Defaulting Party in accordance with the provisions of Article XV,and System Owner may
terminate this Agreement. System Owner and Host Customer agree to use reasonable
efforts to mitigate the damages to the Defaulting party,including but not limited to moving
the installation to another location at the cost of Host Customer.
4.2.4 Mutual Indemnification
Each Party agrees to indemnify and hold harmless the other Party for any claims,
fines, damages, and costs (including attorney's and consultant's fees) arising out of
hazardous material liability to the extent the Party is responsible for such hazardous
materials and is thus an Indemnifying Party under Section 15.3. This clause shall survive
the termination of this Agreement and expiration of the Service Term.
4.3 Licenses.Permits and Inspections During Installation
System Owner shall maintain and shall ensure that its Contractors maintain all
required licenses and permits during the Installation Period. System Owner and its
Contractors shall obtain all inspections required by all authorities having jurisdiction
during the Installation Period and during the Term. Certificates of inspection or other
appropriate documentation by said authorities shall be delivered to Host Customer upon
completion of the installation of the System.
4.4 Contractors
4.4.1 Subcontract Requirements
System Owner may hire Contractors by subcontracting the performance of any part
or all of the Services System Owner is obligated to provide hereunder. All Contractors so
engaged by System Owner shall be required by contract to have all permits, licenses,
insurance and registrations required to perform the Services subcontracted to them.
4.4.2 Identification of Contractors to Host Customer
System Owner shall provide Host Customer with (a) the identification of all
Contractors to be engaged by System Owner,and(b)evidence that such Contractors have
obtained and will maintain insurance as required by Article XVI. All Contractors shall
follow Host Customer's Premises access protocols, including sign-in, security and safety
orientation,before commencing any work at the Premises.
4.4.3 Host Customer Right tQ Remove Contractors from Site for Cause
Host Customer shall have the right to require the removal from the Site of any
Contractor or the agents, employees or subcontractors of such Contractor, who, in Host
Customer's sole judgment, exhibit unsafe work practices, unacceptable quality of
workmanship,or behavior inappropriate for the workplace.
4.5 Safe Workplace
While at the Premises and the Site, System Owner and its Contractors will take all
reasonable and customary steps to ensure the safety of workers and visitors in accordance
with all applicable laws. System Owner shall cause the work to be carried out in
accordance with Host Customer's published safety program,a copy of which is appended
hereto as Exhibit E.
4.6 Installation of Meter
System Owner shall install the Meter at the Delivery Point to measure the amount
of Output delivered by the System to Host Customer. System Owner will own, operate
and maintain the Meter during the Service Term at its own expense.
4.7 Net Metering Arrangements
4.7.1 System Owner Notification to Make Net Metering`Arrangements
System Owner shall provide Host Customer with timely notification that Host
Customer must make Net Metering Arrangements with the Host Utility in order for System
Owner to be able to complete the installation and testing of the System. Within five (5)
business days of such notification from System Owner,Host Customer shall enter into Net
Metering Arrangements by executing such agreements as may be required by Host Utility
to permit the interconnection of the System with the Site Electrical System and to allow
any Output of the System not consumed by the Host Customer to flow to the Host Utility.
Host Customer shall promptly provide copies of such agreements and arrangements to
System Owner when executed.
4.7.2 Required Documentation
System Owner shall provide Host Customer with documentation under System
Owner's control that the Host Utility requires by its Tariff to demonstrate that the System
complies with the requirements of the Host Utility's interconnection standards.
4.8 Internet Access
Consistent with the System Description and Specifications in Exhibit B,Host
Customer shall make available to System Owner such internet access at the Premises and
the Site as System Owner shall require for the continuous remote monitoring of the
System's operation and performance. System Owner will pay for any costs associated
with intemet upgrades that are directly attributed to the System.
4.9 Notification of Service Commencement Date
Upon the successful completion of the installation and testing of the System and
Host Utility approval to operate the System, System Owner shall provide Host Customer
with notice that the System is ready to deliver Output and of the Service Commencement
Date on the form in Exhibit F.
ARTICLE V
OPERATION AND MAINTENANCE OF THE PREMISES,SYSTEM,
SITE,AND SITE ELECTRICAL SYSTEM
5.1 Sygm Owner Operation.Maintenance and Rair of System
5.1.1 System Owner shall maintain the System in good working condition,
ordinary wear and tear,and shall operate the System in accordance with all applicable laws,
regulations and ordinances.
5.1.2 If the System is damaged due to the negligence or intentional misconduct
of Host Customer, then Host Customer shall be responsible for such costs incurred by
System Owner for the repair or replacement of the System to the extent of its negligence
or intentional misconduct.
5.2 System Owner Operation and Maintenance Contractors
5.2.1 Contractor Requirements
System Owner may engage Contractors to operate,maintain and repair the System.
System Owner shall require any such Contractors to have all licenses, permits and
registrations and obtain inspections required for such service providers, and any such
Contractors shall maintain insurance as required by Article XVI.
5.2.2 Identification of Contractors to Host Customer
System Owner shall provide Host Customer with (a) the identification of all
Contractors with whom System Owner contracts to operate, maintain and repair the
System,and(b)evidence that such Contractors have obtained and will maintain insurance
as required by Article XVI. All Contractors shall follow Host Customer's Premises access
protocols,including sign-in,security and safety orientation,before commencing any work
at the Premises.
5.2.3 Host Customer Right to Remove Contractors from Site for Cause
Host Customer shall have the right to require the removal from the Site of any
Contractor or the agents, employees or subcontractors of such Contractor, who, in Host
Customer's sole judgment, exhibit unsafe work practices, unacceptable quality of
workmanship,or behavior inappropriate for the workplace.
5.2.4 Safe Workplace
While at the Premises and the Site,System Owner and its Contractors will take all
reasonable and customary steps to ensure the safety of workers and visitors in accordance
with all applicable laws. System Owner shall cause the work to be carried out in
accordance with Host Customer's published safety program,a copy of which is appended
hereto as Exhibit E.
5.3 Host Customer Operation,Maintenance and Repair of Premises and Site
5.3.1 Host Customer Responsibility and Coordination with System Owner
Host Customer shall be solely responsible for the operation,maintenance and repair
of the Premises and the Site,including any repair,maintenance or replacement of the roof
on which the System is located. Host Customer will advise System Owner in writing prior
to making any adjustments, modifications, or upgrades to the Premises or Site to ensure
that the Output of the System is not negatively impacted. The duration of any maintenance
Or reps that disrupts System Output shall constitute a Disruption of Delivery on the part
of the Host Customer in accordance with Section 11.3, and shall not constitute a Non-
Delivery Period by System Owner as set forth in Section 15.1.1;provided,that if the need
for any such repair or maintenance is caused by the negligence or intentional misconduct
Of System Owner,then the period required for maintenance or repair shall not constitute a
Disruption of Delivery on the part of the Host Customer.Host Customer and System Owner
shall coordinate such activities so as to minimize disruption to the System.
5.3.2 Separate Contract to Accommodate Host Customer Site Roof Repair
If during the Term of this Agreement, Host Customer performs Site repairs or
maintenance which may include replacement of the roof on which the System is located,
Host Customer will contract separately with System Owner to disassemble, temporarily
relocate, move, and reassemble System components as necessary to coordinate with the
repairs,maintenance or replacement. System Owner will coordinate with Host Customer
to minimize the disruption of Output during such repairs,maintenance,or replacement,and
to restore the System to full capacity in a timely manner, provided, however that the
duration of the repairs, maintenance or replacement shall constitute a Disruption of
Delivery on the part of the Host Customer in accordance with the provisions of Section
11.3,and shall not constitute a Non-Delivery Period by System Owner in accordance with
the provisions of Section 15.1.1.
5.4 Host Customer Maintenance and Repair of SiteElecgrical System
Host Customer shall maintain the Site Electrical System in good working order,
and shall perform such other maintenance, repair and upgrades as may be required
including but not limited to such work required by the Host Utility or by applicable laws,
regulations, ordinances, and codes. Host Customer will advise System Owner in writing
Prior to making any adjustments,modifications,or upgrades to the Site Electrical System
that are likely to have a material impact on the Output to ensure that the Output of the
System is not negatively impacted.
The duration of any maintenance, repair, or upgrade that disrupts System Output
shall constitute a Disruption of Delivery on the part of the Host Customer in accordance
with Section 11.3,and shall not constitute a Non-Delivery Period by System Owner as set
forth in Section 15.1.1; provided, that if the need for any such repair or maintenance is
caused by the negligence or intentional misconduct of System Owner,then and the period
required for such maintenance or repair shall not constitute a Disruption of Delivery on the
part of the Host Customer. Host Customer and System Owner shall coordinate such
activities so as to minimize disruption to the System.
5.5 Notice of System Malfunction and Non-Interference
Host Customer shall notify System Owner immediately upon learning of(a) any
material malfunction of or damage to the System and(b) any interruption or alteration of
the energy supply to the Premises. Host Customer may not adjust,modify,maintain,alter,
service or in any way interfere with the System,except as authorized in writing by System
Owner, or in the event of an emergency if there is an imminent threat to life or property in
which case Host Customer shall give System Owner or its designated Contractor
immediate notice of such emergency. Host Customer shall be responsible for any damage
to the System that is caused by its negligent or intentional interference with the System.
5.6 Host Customer Continuing Responsibility for Net Metering
At all times during the Service Term,Host Customer shall,maintain the Net
Metering Arrangements and any other related agreements.
5.7 Host Customer Contin ' R ibilily for Internet Access
Consistent with the System Description and Specifications in Exhibit B,Host
Customer shall make available to System Owner such internet access at the Premises and
the Site as System Owner shall require for the continuous remote monitoring of the
System's operation and performance.
VI
ACCESS AND SPACE PROVISIONS
6.1 Adequate Space for Installation
Host Customer shall provide System Owner and its Contractors with adequate
space on the Premises and the Site during the Installation Period for System Owner's
installation and testing of the System,including reasonable staging and lay down areas.
6.2 Adequate Access for System Owner- Grant of License
6.2.1 Host Customer shall provide System Owner adequate access to the Premises
and the Site for System Owner's installation, operation, maintenance, and, to the extent
applicable,repair, replacement or removal of all or part of the System in accordance with
the terms herein. Host Customer shall provide, and System Owner shall have, access to
the Premises during regular business hours, outside of regular business hours only upon
reasonable advance request of System owner,and at any time in the event of an emergency
as may be necessary for System owner to fulfill its obligations under this Agreement. Such
access shall be subject to reasonable supervision by Host Customer as Host Customer may
require. System Owner shall use reasonable efforts to minimise disruption to Host
Customer's operations.
6.2.2 This Agreement shall constitute a non-exclusive license throughout the
Term of this Agreement granting System Owner reasonable access to, occupancy of and
use of the Premises for System Owner to exercise its rights and meet its obligations
hereunder according to the terms herein.Host Customer will insure that any other license
or other allowed use of the Premises shall not interfere with System Owner's reasonable
access hereunder.
6.2.3 As used in this Article V1 access rights applicable to System Owner shall
include access for System Owner's agents,Contractors and assigns.
6.3 Access by Host Customer to System
Because the System will be located on the Premises,the Parties acknowledge that
Host Customer will have access to the Site for maintenance of Host Customer's property,
safety,security,and emergency purposes. Host Customer shall take all reasonable actions
to ensure that the operation of the System is not disrupted when Host Customer accesses
the Site, and that the System will not be damaged thereby as a result of the actions or
inactions of Host Customer,its designee(s)or invitees.
6A Prevention of Unauthorized Access
Host Customer, in consultation with the System Owner, shall develop and
implement, prior to the Service Commencement Date, written policies, systems and
practices to prevent unauthorized access to and trespass on the System and to prevent harm
or damage to the System or to Output.
VU
ADDITIONAL COVENANTS
7.1 Ownership of System by System Owner
7.1.1 Host Customer and System Owner(a)intend that the System shall at all
times be the personal property of System Owner severable from the Site and the Premises
and shall not become a fixture and(b)shall each take such actions as are reasonably
required by the other Party to ensure that the System constitutes the personal property of
System Owner and shall not become a fixture.
7.1.2 If any person attempts to claim ownership of or other rights to the System
by asserting any claim against or through Host Customer,and such claim is not attributable
to any act or omission of System Owner, Host Customer agrees to protect and defend
System Owner's title to the System,at Host Customer's expense. Host Customer will at
all times keep the System free from any legal process and any lien not attributable to any
act or omission of System Owner, and will give System Owner immediate notice if any
legal process or lien is asserted or made against the System or against Host Customer where
the System may be subject to any lien,attachment or seizure by any Person.
7.2 Use of Premises
7.2.1 Host Customer intends to continue to use the Premises in a manner similar
to its present use throughout the Term, except as has been disclosed to System Owner by
Host Customer and included in Exhibit A of this Agreement. Host Customer shall give
reasonable prior notice to System Owner of any material modification of the Premises or
change in the use ofthe Premises that would have an impact on the operation of the System
or on Host Customer's consumption of Output.
7.2.2 If Host Customer provides a notice to System Owner pursuant to Section
7.2.1 that it seeks to make a material modification of the Premises or to change the use of
the Premises in a way that would have an impact on the operation of the System or on Host
Customer's consumption of Output,the Parties shall attempt to amend this Agreement so
as to preserve to System Owner the economic benefits of this Agreement prior to such
modification or change. If the Parties are unable to reach agreement on an amendment
within ten (10) business days of the date Host Customer notifies System Owner of such
change or modification,System Owner shall have the right to treat such change as an Event
of Default hereunder and terminate this Agreement. In such event,(a)System Owner shall
have the right to remove the System from Host Customer's property and the Premises and
(b)Host Customer shall be liable for damages in accordance with the provisions of Article
XV.
7.3 Obstructions
7.3.1 Host Customer shall not install or permit to be installed on the Premises(or
any other property owned or controlled by Host Customer)any physical obstruction to the
operation of the System that reduces Output.
7.3.2 In the event that any obstruction that could reasonably be expected to reduce
Output is proposed to be erected or installed on property other than the Premises or other
than property owned or controlled by Host Customer, Host Customer shall promptly
deliver to System Owner copies of any notice relating thereto received by Host Customer,
and System Owner shall have the right to intervene or to direct Host Customer to intervene
(at System Owner's expense)in any proceeding and to contest the installation or erection
of any such obstruction. In the event such obstruction is installed,(a)System Owner shall
have the right to remove the System from Host Customer's property and the Premises and
(b)Host Customer shall be liable for damages in accordance with the provisions of Article
XV.
7.4 Status of Premises and Site
7.4.1 In the event that any or all of the Premises is or becomes subject during the
Term to a new lease, security interest, lien or mortgage,Host Customer shall require that
the lessor or the holder of such security interest,lien or mortgage enter into an agreement
with System Owner, or provide an estoppel reasonably acceptable to System Owner and
the lenders,acknowledging and recognizing System Owner's rights under this Agreement
and acknowledging that the System is the personal property of System Owner severable
from the Site and not a fixture.
7.4.2 If necessary ager the execution of this Agreement, Host Customer shall
from time to time grant to System Owner easements, leases, licenses, consents,
acknowledgments, and approvals and other rights System Owner reasonably requires for
the installation and testing of the System,production and delivery of Output to the Delivery
Point,and the operation and maintenance of the System under this Agreement.
7.5 Host Customer's On-going Ability to Perform
During the Term of the Agreement and when requested by System Owner, Host
Customer shall promptly provide reasonable evidence of creditworthiness and ability to
pay amounts due under this Agreement.
VIII
ENVIRONMENTAL CREDITS AND SYSTEM ATTRIBUTES
8.1 System Attributes
System Owner shall at all times during the Term of this Agreement own and retain
exclusive rights to any and all attributes,products or economic benefits attributable to the
System or to the production and delivery of Output, including but not limited to
Environmental Credits,Capacity and Ancillary Services.
8.2 Environmental Credits
All Environmental Credits, whether available directly or indirectly, shall be and
shall remain the property of System Owner for the Service Term. System Owner shall
have sole use of such Environmental Credits and shall be permitted to use such
Environmental Credits for itself, or to sell, grant, convey, or otherwise dispose of such
Environmental Credits to any other Person, in System Owner's sole discretion. Host
Customer hereby grants,makes and conveys to System Owner an absolute and irrevocable
assignment of any and all right, title and interest Host Customer may at any time have in
or to any Environmental Credits.
8.3 Documentation
At System Owner's request, Host Customer will complete any and all
documentation required to substantiate the existence, nature, and/or quantity of
Environmental Credits produced by the System, or required to validate System Owner's
rights to and ownership of the Environmental Credits.
IX
PURCHASE AND SALE OF OUTPUT
On and after the Service Commencement Date and through the end of the Service
Term, System Owner shall deliver and sell to Host Customer to the Delivery Point, and
Host Customer shall accept delivery and purchase at the Delivery Point,all of the Output
at the price and the terms and conditions set forth in Exhibit C of this Agreement.
9.1 Solar ElectricLq Price
Beginning on the Service Commencement Date,the Solar Electricity Price paid by
Host Customer for Output shall be as specified in Exhibit C.
9.2 Other Electricity Purchases
9.2.1 System to Reduce Other Electricity Purchases
The Parties intend that the Output will reduce Host Customer's purchase of
electricity from the Host Utility or retail electricity suppliers, and acknowledge that the
System is not expected to meet the entirety of Host Customer's demand for electricity. To
the extent that at any time the Output is insufficient to meet all of Host Customer's
electricity demand,Host Customer will be responsible for purchasing electricity from such
other sources. The Parties further intend that Host Customer's obligations to purchase
Output shall not be reduced by the installation of another power source(s)on the Premises.
9.2.2 Other Electricity Purchase Agreements
Host Customer shall be responsible for maintaining and fidfilling all obligations to
any of its other electricity service providers, including but not limited to any competitive
electric supplier of generation or transmission services to Host Customer,and for meeting
all requirements imposed by any such electricity service provider and by any federal,state
or local government agencies with respect to such services and to the purchase of the
Output.
9.3 Sale Only to Host Customer
In no event shall System Owner sell, or be deemed to have sold, Output to any
Person other than Host Customer.
9.4 Host Customer Net Met'�rin Obligation
The Parties recognize and acknowledge that,from time to time,(a)the Output may
exceed Host Customer's demand for electricity or (b) Host Customer will otherwise be
unable to consume Output delivered to the Delivery Point. Host Customer shall
nonetheless accept and tame title to the Output at the Delivery Point and shall have in place
and maintain Net Metering Arrangements as required by Tariff or by the Host Utility to
deliver to the Host Utility any Output that exceeds Host Customer's demand for,or ability
to consume, electricity; provided that if, through no cause attributable to Host Utility or
System Owner, Host Customer fails to enter into, faits to maintain or otherwise fails to
comply with the required Net Metering Arrangements, and as a result of such failure,
System Owner cannot deliver Output to Host Customer,then such failure shall constitute
a Disruption of Delivery and an Event of Default, and Host Customer shall be liable to
System Owner for the electricity that the System produced, or was capable of producing,
and that would otherwise have been delivered to Host Customer as Output, in accordance
with the provisions of Article XV.
9.5 Taxes
Host Customer shall either pay or reimburse System Owner for any and all takes
assessed on the generation, sale,delivery or consumption of electric energy produced by
the System. For purposes of this Section,"Taxes"means any state and local ad valorem,
occupation,generation,privilege,gross receipts, sales,use,consumption„excise,
transaction,and other taxes,regulatory fees, surcharges or other similar charges,but shall
not include any income taxes or similar taxes imposed on System Owner's revenues due
to the sale of energy under this Agreement,which shall be System Owner's
responsibility.
9.6 Invoice and Payment
Following the end of each calendar month during the Service Term, System Owner
shall prepare and provide Host Customer an invoice for the Output delivered in the prior
month(or partial month if the Service Commencement Date is not the first day of a month).
Deliveries during the month of an anniversary date shall be prorated as to the applicable
Solar Electricity Price. The amount due for the Output shall be determined by multiplying
the applicable Solar Electricity Price by the Output delivered(or deemed delivered)to Host
Customer during such month, and each invoice shall set forth in reasonable detail the
calculation of all amounts owed. A sample invoice calculation is shown in Exhibit D.
Delays in the issuance of any such invoice shall not constitute any waiver of Host
Customer's obligation to pay once Host Customer has actually received and invoice from
System Owner,or System Owner's right to collect,any payment under any such invoice.
9.6.1 Payments
Subject to its contest rights set forth in Section 9.6.3,Host Customer shall pay the
full amount of each invoice on or before the twentieth (20'x)day following issuance thereof
("Due Date"). All payments made by Host Customer under this Agreement shall be by
electronic funds transfer pursuant to the instructions set forth in Exhibit D attached hereto,
or by check payable to System Owner (unless otherwise directed in writing by System
Owner)at the address for notices set forth in Section 18.3,as such instructions or address
may be modified by System Owner by notice to Host Customer in writing.
9.6.2 Late Payment Fees
If any part of a monthly payment is not made by Host Customer within twenty-five
(25)days following the Due Date,Host Customer agrees to pay System Owner a late fee
that shall accrue on the basis of one percent(1°/Q)per month(or such lower percentage as
and if required by applicable law)on the amount of such late payment("Late Fee").
9.6.3 Contest Rights
Host Customer shall notify System Owner in writing within five(5)business days
of issuance of the monthly invoice of any portion of the invoiced amount that it has a
reasonable basis to dispute in accordance with Section 18.1 and the basis for such Dispute.
The contested portion of any invoiced amount shall not relieve Host Customer of its
obligation to pay the uncontested portion of such invoice as set forth in Section 9.6.1.
ARTICLE X
METERING
During the Service Term, System Owner shall, at its own expense, own, operate
and maintain the Meter and provide necessary Meter related services.
10.1 MeterKeadiriff
System Owner shall cause the Meter to be read at the end of each calendar month,
and shall cause the Output delivered to Host Customer to be recorded. The reading shall
be used as the basis for calculating the amount to be invoiced pursuant to Section 9.6 under
this Agreement,
10.2 Alternative Measures in Event of Non-Operability
If the Meter is out of service or registers inaccurately,then the measurement of the
Output shall be determined by the following alternatives,in the following order: (a)any
alternative or back-up meter that System Owner or Host Utility may have installed, if
registering accurately; (b) a mathematical calculation, if upon a calibration test of such
Meter a percentage error is ascertainable; or (c) estimates of deliveries of Output by
reference to quantities measured during periods of similar conditions when such Meter was
registering accurately.
10.3 Calibration
10.3.1 System Owner shall notify Host Customer of the time it will test and
calibrate the Meter and Host Customer may witness such testing. Host Customer may
request that System Owner to re-test and re-calibrate the Meter,and any such testing shall
be at Host Customer's expense if such tests indicate that the Meter is accurate within plus
or minus two percent(2%). Host Customer may witness any re-tests.
10.3.2 If, upon testing,any Meter is found to be accurate or in error by not more
than plus or minus 2 percent (±2%), then previous recordings of such Meter shall be
considered accurate in computing deliveries of Output hereunder,but such Meter shall be
PromPdY 4usted to record correctly.
10.3.3 If, upon testing, any Meter shall be found to be inaccurate by an amount
exceeding plus or minus 2 percent (+20/o), then such Meter shall be promptly repaired or
adjusted to record properly and any previous readings from such Meter used to compute
invoices for Output shall be corrected to zero error. If no reliable information exists as to
the period over which such Meter registered inaccurately,it shall be assumed for purposes
of correcting previous invoices that such inaccuracy began at a point in time midway
between the testing date and the next previous date on which such Meter was tested and
found to be accurate.
10.3.4 If upon testing, any Meter shall be found to be inaccurate by an amount
exceeding plus or minus two percent(±29/o),then the payments for Output made since the
previous test of such Meter shall be adjusted to reflect the corrected readings as determined
in accordance with Section 10.3.3. If the difference in the previously invoiced amounts
minus the adjusted payment is a positive number(Meter has over-registered Output),that
difference will offset amounts owing by Host Customer to System Owner in subsequent
month(s). If the difference is a negative number(Meter has under-registered Output),the
difference shall be added to the next month's invoice and paid by Host Customer to System
Owner on the Due Date of such invoice.
ARTICLE XI
OUTPUT INTERRUPTIONS AND PERFORMANCE GUARANTEE
11.1 Intermittent Interruptions Are Expected
Host Customer acknowledges and understands that the System, as a solar
photovoltaic system, will produce Output intermittently, and will not provide Host
Customer with an uninterrupted supply of electricity. THIS AGREEMENT PROVIDES
NO WARRANTY OR GUARANTEE TO HOST CUSTOMER OF AN
UNINTERRUPTED SUPPLY OF ELECTRICITY. System Owner shall not be liable to
Host Customer for any intermittent interruption in Output during the Term, nor shall
System Owner be responsible for Host Customer's cost of alternative supplies of
electricity during any such interruption. If delivery of Output from the System is
interrupted other than as a result of the default, negligent acts or omissions of Host
Customer or as otherwise provided in Section 11.2, System Owner will make
commercially reasonable efforts to restore Output in a timely manner.
11.2 Interrutrtion of Output
11.2.1 Notwithstanding anything to the contrary herein, System Owner shall have
the right to interrupt, reduce or discontinue the delivery of Output for purposes of
inspection,maintenance,repair,replacement,or alteration of the System,or at the direction
of authorized governmental authorities or electric utilities. Other than in the event of an
unexpected interruption or in the event of an emergency, System Owner shall give Host
Customer notice prior to an interruption of Output and an estimate of the expected duration
of the interruption.
11.2.2 System Owner shall not be required to supply Output to Host Customer at
any time System Owner reasonably believes the Site or Site Electrical System to be unsafe,
but in no event will System Owner have any responsibility to inspect or approve the Site
Electrical System. Similarly, Host Customer, should it deem System to be in an unsafe
condition,shall have the right to direct System Owner to disconnect System,or,in the case
of imminent danger caused by such unsafe condition, Host Customer may disconnect
System from its Site or Site Electrical System without penalty under this Agreement. In
such an occurrence, Host Customer shall notify System Owner of said unsafe condition
and of the emergency disconnection without delay.
11.3 Disruution of Delivery
In the event that System Owner is capable of generating and delivering Output to
Host Customer,but Host Customer fails to accept delivery of such Output(a"Disruption
of Delivery'),Host Customer agrees to pay System Owner for such Output as follows:
11.3.1 Payments that Host Customer would have made to System Owner for
Output that would have been produced during the period of the Disruption of Delivery,as
determined by historic billing data or as represented by the National Renewable Energy
Laboratory PV Watts modeling software given the System attributes during the period of
Disruption of Delivery;
11.3.2 Beginning on the fifth (5th)day following the commencement of the
Disruption of Delivery,revenues that System Owner would have received under any state
solar incentive program and any other assistance program with respect to Output that would
have been produced during the period of the Disruption of Delivery;and
11.3.3 Beginning on the fifth (5"') day following the commencement of the
Disruption of Delivery, revenues from Environmental Credits that System Owner would
have received with respect to Output that would have been produced during the period of
the Disruption of Delivery with due consideration to compliance fee payments to
governmental authorities that may be caused by the Disruption of Delivery.
4.6. 11.3.4 Payments will be made in accordance with the terms of Section
11.4 Cost to Restore Service Following Interruption
System Owner shall bear any costs associated with restoring service following any
interruption of the supply of Output from the System as a result of System Owner's
operation of the System. Host Customer shall bear the costs associated with the restoration
of the delivery of Output if an interruption is caused by the actions or inactions of Host
Customer or the condition of the Premises,Site or Site.Electrical System.
11.5 Extended Performance Guarantee
11.5.1 System Owner guarantees that during the first fifteen (15_) years of
operation occurring after the date that Service Commencement Date is achieved, the
System will generate no less than the minimum number of kWh's identified in Exhibit G
"Minimum Output Guarantee"for each annual period.
11.5.2 In the event that System energy output is less than the specified minimum
kWhs for the 365 day annual period in question, System Owner shall pay Host Customer
One Time Damages amount computed by multiplying the difference in the minimum
energy output guarantee shown in Exhibit G and the actual kWh production by the
difference between the then current solar off-settable electricity rate and the Power
Purchase Agreement rate from Exhibit C;
11.5.3 In the event that the actual output of the System is below the minimum
output guarantee for an annual period, commencing on the day that Service
Commencement Date is achieved, Host Customer shall notify System Owner pursuant to
Agreement Section 18.3 "Notices"and state the number of actual kWh's produced by the
System for the annual period in question and show all calculations associated with the
payment System Owner must make to Host Customer pursuant to Agreement Section
11.5.2 above. In addition,Host Customer will provide any necessary payment instructions
with such notification. System Owner shall pay Host Customer within thirty(30)calendar
days after receiving Host Customer's notice of payment due and supporting calculations.
ARTICLE XII
SYSTEM PURCHASE OPTIONS
12.1 Purchase Option
12.1.1 Provided that Host Customer has fulfilled all obligations to System Owner
under this Agreement,at the expiration of the tenth(10h)year of Service Term,and at the
expiration of the Service Term,Host Customer shall have the option to purchase the System
by notifying System Owner in writing at least ninety(90)days prior to the end of the tenth
(10'x)year of the Service Term,or at least ninety(90)days prior to the end of the Service
Term that Host Customer intends to exercise its option under this Section 12.1.
Should any unanticipated tax significantly increase the power price Host Customer
expects to pay under this Agreement,and the system has been operating for more than six
(6)years,Host Customer shall have the right to purchase the System from System Owner
at fair market value.
12.1.2 If Host Customer exercises its option under this Section 12.1, Host
Customer shall pay System Owner an amount equal to fair market value for the System
and its Output.
12.1.3 Upon Host Customer's payment for the System, System Owner shall
furnish the System to Host Customer, including all components thereof and operation
manuals, in the condition at the time of determination of the fair market value, subject to
normal wear and tear.
12.1.4 The term "fair market value" as used herein shall mean (i) the price that
would be negotiated in an arm's-length, free market transaction, for cash, between an
informed, willing seller and an informed, willing buyer (other than the user currently in
possession), neither of whom is under compulsion to complete the transaction, for the
purchase of the System as removed from the Site at the date of determination,de-installed,
packed, crated and ready for shipment to such buyer or, if higher, as installed on the Site
and(ii)as determined by the mutual agreement of the Parties. Ifunable to agree,the Parties
shall select a nationally recognized independent appraiser with experience and expertise in
the solar photovoltaic industry to value the System; such valuation to be binding absent
fraud or manifest error. The costs of the appraisal shall be borne equally by the Parties. if
the Parties are unable to agree on the selection of an appraiser, such appraiser shall be
selected by the two proposed appraiser firms.
12.1.5 Transfer to Host Customer
Upon transfer of ownership of the System to Host Customer, System Owner shall
have no finther obligation with respect to the performance, installation, operation,
maintenance or repair of any part or component of the System;provided,however,System
Owner agrees to pass through and to transfer to Host Customer any applicable
manufacturers' warranties provided on the System,to the extent that such warranties are
transferable.
12.1.6 Non-Election and Removal
12.1.6 If Host Customer does not purchase the System pursuant to Section 12.1,or
if System Owner and Host Customer do not agree to renew this Agreement pursuant to
Section 2.2,System Owner shall,within ninety(90)days after the end of the Service Term,
remove the System from the Site at its expense including the reasonable expense of
repairing any adverse impact such removal directly causes to the Site or the Premises.
ARTICLE XIII
REPRESENTATIONS
13.1 Host Customer Representations
Host Customer makes the following representations and warranties to System
Owner:
13.1.1 Host Customer is duly authorized and has the power to enter into this
Agreement and perform its obligations hereunder.
13.1.2 Host Customer has all the rights required to enter into this Agreement and
perform its obligations hereunder, and has obtained all necessary consents, if any, from
third parties including any mortgagee.
13.1.3 This Agreement is enforceable against Host Customer in accordance with
its terms and does not conflict with or violate the terms of any other agreement to which
Host Customer is a party,including, if applicable, any agreement pursuant to which Host
Customer leases,occupies,or has financed the Premises or the Site.
13.1.4 Host Customer has no knowledge of any facts or circumstances that could
materially adversely affect its ability to perform its obligations hereunder including its
creditworthiness pursuant to Section 7.5.
13.1.5 The information provided to System Owner by Host Customer pursuant to
this Agreement as of the Effective Date is true and accurate in all material respects
including but not limited to: data concerning energy usage for the Premises; and
construction drawings for the Premises in existence as of the Effective Date.
13.1.6 Host Customer shall use its best efforts to satisfy all conditions precedent
in Section 3.1.
13.2 System Owner Representations
System Owner makes the following representations and warranties to Host
Customer:
13.2.1 System Owner is duly authorized and has the power to enter into this
Agreement and perform its obligations hereunder.
13.2.2 System Owner has all the rights required to enter into this Agreement and
Perform its obligations hereunder, and has obtained all necessary consents, if any, from
third parties including any mortgagee.
13.2.3 This Agreement is enforceable against System Owner in accordance with
its terms and does not conflict with or violate the terms of any other agreement to which
System Owner is a party.
13.2.4 System Owner has no knowledge of any facts or circumstances that could
materially adversely affect its ability to perform its obligations hereunder including its
creditworthiness.
13.2.5 The information provided to System Owner by Host Customer pursuant to
this Agreement as of the Effective Date is true and accurate in all material respects.
13.2.6 System Owner shall use its best efforts to satisfy all conditions precedent in
Section 3.1.
ARTICLE XIV
FORCE MAJEURE
14.1 Definition of Force Majeure ForceMajeure Events
Force Majeure means any circumstance not within the reasonable control, directly
or indirectly,of the Party affected,but only if and to the extent that(a)such
circumstance,despite the exercise of due diligence,cannot be or be caused to be
prevented, avoided or removed by such Party,(b)such event is not due to such Party's
negligence or intentional misconduct, (c)such event is not the result of any failure of
such Party to perform any of its obligations under this Agreement,(d)such Party has
taken all reasonable precautions, due care,and reasonable alternative measures to avoid
the effect of such event and to mitigate the consequences thereof,and(e)such Party has
given the other Party prompt notice describing such event,the effect thereof and the
actions being taken to comply with this Agreement. Subject to the foregoing conditions,
Force Majeure Events may include: strikes or other labor disputes,other than strikes or
labor disputes solely by employees of the Parry declaring the Force Majeure Event or as a
result of such Party's failure to comply with a collective bargaining agreement;adverse
weather conditions and other acts of nature;earthquakes;and riot or civil unrest;
provided,that Force Majeure Events shall not include any inability to make any payments
that are due hereunder or to any third party or to procure insurance required to be
procured hereunder.
14.2 No Default
Neither System Owner nor Host Customer shall be considered to be in default in
the performance of its obligations under this Agreement to the extent that performance of
any such obligation is prevented or delayed by a Force Majeure Event.Not withstanding
any provision herein to the contrary, the Host Customer shall not be obligated to make
payments under this Agreement for any period during which the System Owner is unable
to deliver Output to the Host Customer by reason of a Force Majeure Event.
14.3 Notice and Cure
If a Party is prevented or delayed in the performance of any such obligation by a
Force Majeure Event,then such Party shall immediately provide notice to the other Party
of the circumstances preventing or delaying performance and the expected duration
thereof. Such notice shall be confirmed in writing as soon as reasonably possible. The
Party affected by a Force Majeure Event shall use commercially reasonable efforts to
remove or repair the cause of the Force Majeure Event and shall resume performance of its
obligations as soon as reasonably practicable.
14.4 Termination for Force Majeure
Either Party shall be entitled to terminate this Agreement upon ten(10)days prior
written notice to the other Party if any Force Majeure Event affecting the other Party has
been in existence for a period of forty-five (45) consecutive days or longer, unless such
Force Majeure Event ceases prior to the expiration of such forty-five(45)day period-
ARTICLE
eriodARTICLE XV
DEFAULT,REMEDIES AND LIMITATIONS,
INDEMNITY,RELEASE AND DISCLAIMER
15.1 Default.
Each Party(the"Defaulting Party")shall be liable to the other Party(the"Non-
Defaulting Party")for the following"Events of Default."
15.1.1 Failure to Perform or to Meet a Material Obligation
(a) System Owner's unexcused failure to provide any Output following the
Service Commencement Date for a period of at least sixty(60)consecutive days during the
Service Term ("Non-Delivery Period"); provided that the Non-Delivery Period shall not
include any period during which the System is not operating due to a Force Majeure Event
or any period during which the Host Customer is in default hereunder or otherwise cannot
accept delivery of Output, and such periods shall interrupt any calculation of consecutive
days. and provided, fiuther,that System Owner's failure to deliver Output following the
Non-Delivery Period shall not be a default for so long as System Owner,at its option,pays
to Host Customer on a monthly basis in arrears the positive difference,if any,between the
Solar Electricity Price Host Customer would have paid for Output during the Non-Delivery
Period and the rate for electricity service from Host Utility in effect at the time,until such
time as System Owner restores deliveries of Output to Host Customer.
(b) Host Customer's failure to pay an invoice following the Due Date,and such
fbilure continues for a period of thirty(3 d)days after System Owner provides written notice
of such nonpayment to Host Customer.
(c) Host Customer's modification or change in use of the Premises without
System Owner's prior written consent in a way that will adversely affect the System,failure
to keep the System free from legal process or to accommodate a modification or change in
use of the Premises, failure to obtain an acknowledgement from a financial entity that the
System is a fixture,or failure to demonstrate its ability to perform,all pursuant to Articles
VI and VII.
(d) Host Customer's Disruption of Delivery pursuant to Section 11.3.
(e) Host Customer's failure to remove hazardous materials pursuant to
Section 4.2.3.
(f) Host Customer's failure to maintain the Premises, Site and Site Electrical
System pursuant to Sections 5.3 and 5.4.
(g) Host Customer's failure to maintain the Net Metering Arrangements
Pursuant to Section 5.6.
5.7. (h) Host Customer's failure to maintain the internet access pursuant to Section
(i) Notice and Cure. Notwithstanding anything to the contrary herein,a Party's
failure to perform fully any material obligation under a provision of this Agreement
including but not limited to those provisions explicitly set forth in this Section 15.1.1,shall
not constitute an Event of Default unless and until either (a) such failure continues for a
period often(10)business days after written notice of such nonperformance from the other
Party or(b)if the nonperforming Party commences an action to cure such failure to perform
within such ten(10)business day period,and thereafter proceeds with all due diligence to
cure such failure, but such failure is still not cured within thirty (30) days after the
expiration of the initial ten(10)business day period.
15.1.2 Material Misrepresentation
Representations, warranties and other statements made by a Party that
misrepresents a material fact as of the Effective Date or thereafter, and such
misrepresentation has a material,adverse effect on the other Party that is not cured within
ten (10) business days from the earlier of (a) notice from the Party affected by the
misrepresentation and (b) the discovery or determination by a Party of its
misrepresentation; provided, that if the Party that has made the misrepresentation
commences an action to cure such misrepresentation within such ten (10) business day
period,and thereafter proceeds with all,due diligence to cure such failure,the cure period
shall extend for an additional thirty (30) days after the expiration of the initial ten (10)
business day period.
15.1.3 Bankruntcv
A Party(a)voluntarily or involuntarily files or has filed against it a bankruptcy or
other similar petition, (b) enters into an assignment of its assets for the benefit of its
creditors or(c)otherwise is unable to pay its debts as they become due.
15.2 Remedies.
Upon the occurrence of,and during the continuation without cure of,an Event of
Default,the Non-Defaulting Party shall have the option,but not the obligation,to
terminate this Agreement,and the Defaulting Party shall be liable to the Nan-Defaulting
Party for damages for Default.
15.2.1 If a Host Customer Event of Default occurs, (i) System Owner shall have
the right to terminate this Agreement upon thirty (30) days prior written notice to Host
Customer, and promptly following such termination, shall have the right to remove the
System .from the Premises, and (ii) Host Customer shall be liable to System Owner for
actual,direct damages. At all times following an Event of Default by the Host Customer
until the termination of this Agreement, System Owner shall have the right, but not the
obligation, to deliver the Output to the Host Customer, and the Host Customer shall be
obligated to purchase and pay for such Output in accordance with this Agreement.
15.2.2 If a System Owner Event of Default occurs,then Host Customer shall have
the right to terminate this Agreement upon thirty(30)days prior written notice to System
Owner. Fallowing such termination, System Owner shall have the right to remove the
System from the Site within thirty (30) days after such termination, and shall promptly
make or have made any repairs to the Site to the extent necessary to repair any adverse
impact such removal causes to the Site.
15.2.3 Host Customer shall be liable to System Owner for any actual, direct
damages, including but not limited to lost revenues for the sale of Output due to a
Disruption of Delivery, cause by a Host Customer Event of Default. Subject to ordinary
wear and tear of the System,Host Customer agrees to pay System Owner for the reasonable
costs and expenses relating to any repairs to, direct or indirect harm to, or loss of the
System,to the extent resulting from negligence or intentional misconduct of Host Customer
or any of its contractors, agents, tenants, employees, partners, owners, subsidiaries,
affiliates or invitees,or resulting from the failure of Host Customer to reasonably protect
the System from trespass or other unauthorized access as provided herein.
15.2.4 System Owner shall be liable to Host Customer for any actual, direct
damages caused by a System Owner Event of Default. System Owner agrees to pay Host
Customer for the reasonable costs and expenses relating to any repairs to,direct or indirect
harm to,or loss of the Site or Host Customer's personal property or fixtures on the Site,to
the extent resulting from negligence or intentional misconduct of System Owner or any of
its contractors, second-tier contractors, agents, employees,partners, owners, subsidiaries
or affiliates.
15.2.5 Limitation of Liability
While the Defaulting Party shall be liable to the Non-Defaulting Party for actual,
direct damages caused by an Event of Default, neither Party shall be liable to the other
Party for any special,indirect or consequential damages arising out of the performance or
non-performance of this Agreement, whether caused by negligence, tort, strict liability,
breach of contract,or breach of warranty.
15.2.6 Reservation of Rights
Neither termination nor the exercise of any other right or remedy by a Non-
Defaulting Party hereunder shall eliminate the Nan-Defaulting Party's right to pursue any
other remedy given under this Agreement now or hereafter existing at law, in equity or
otherwise.
15.3 Mutual General Indemnity
To the maximum extent permitted by law, each Party hereto (the "Indemnifying
Party) shall defend, indemnify and hold harmless the other Party and the directors,
officers,shareholders,partners,agents and employees of such other Party,and the affiliates
of the same(collectively, the "Indemnified Parties"), from and against all loss, damage,
expense and liability in connection with this Agreement (including court costs and
reasonable attorney's fees)to the extent caused by, or arising out of the negligent acts or
omissions of the Indemnifying Party, or the failure of the Indemnifying Party to comply
with the provisions of this Agreement.
15.4 Defense of Claims
An Indemnifying Party shall have the right to defend an Indemnified Party by
counsel (including insurance counsel) of the Indemnifying Party's selection reasonably
satisfactory to the Indemnified Party,with respect to any claims within the indemnification
obligations hereof. The Parties shall give each other prompt written notice of any asserted
claims or actions indemnified against hereunder and shall cooperate with each other in the
defense of any such claims or actions. No Indemnified party shall take any action relating
to such claims or actions within the indemnification obligations hereof without the prior
written consent of the Indemnifying Party, which consent shall not be unreasonably
withheld,and no Indemnifying Party shall settle any such claims without the Indemnified
Party's prior written consent,unless the settlement includes a full and unconditional release
of claims against the Indemnified Party.
15.5 Release of Liens and Claims
So long as Host Customer has paid all amounts that become due and owing to
System Owner hereunder,System Owner shall hold harmless Host Customer from all liens
and claims filed or asserted by System Owner's independent contractors, second-tier
contractors or other third parties against Host Customer or the Premises for services
performed or material furnished to System Owner by such parties. System Owner shall,at
no cost to Host Customer,promptly release, discharge or otherwise remove any such lien
or claims by bonding,payment or otherwise and shall notify Host Customer of such release,
discharge or removal. If System Owner does not timely cause any such lien or claim to be
released,discharged or otherwise removed,Host Customer shall have the right(but not the
obligation)to pay all sums necessary to obtain releases,discharges or removals(including
the settlement of any lien or claim). In such event, Host Customer shall have the right to
deduct all amounts so paid (plus reasonable attorneys' fees) from amounts due System
Owner hereunder. Alternatively, upon reasonable demand by Host Customer, System
Owner shall reimburse Host Customer for such amounts
15.6 Disclaimer of Warranties
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT,NEITHER
PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO
THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER (INCLUDING ANY
SERVICES, GOODS, MATERIALS OR OTHER ITEMS SUPPLIED HEREUNDER),
INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY
PURPOSE.
ARTICLE XVI
INSURANCE
16.1 System Owner's Insurance
16.1.1 System Owner's Insurance Covem
At all times relevant to this Agreement, System Owner shall maintain (or shall
cause its Contractors to maintain), with a company or companies licensed or qualified to
do business in the State Minnesota and rated.A/VIII or above by A.M.Best,the following
insurance coverage.
(a) Workers' compensation insurance in compliance with appropriate federal and
State of Minnesota laws, and employers liability insurance with limit of not less
than$1,000,000 per accident or disease for each employee;
(b) Commercial general liability insurance, occurrence form, including, but not
limited to,contractual coverage for all of the provisions or this Agreement,with limits of
not less than $2,000,000 per occurrence and in the aggregate, $1,000,000 products and
completed operations aggregate,and$1,000,000 personal injury and advertising injury per
offense;
16.2 Host Customer's Insurance
16.2.1 Host Customer's Insurance Coverage
At all times relevant to this Agreement, Host Customer shall maintain, with a
company or companies licensed or qualified to do business in the State of Minnesota and
rated A/VIII or above by A.M.Best,the following insurance coverage:
(a) Workers' compensation insurance in compliance with appropriate federal and
State of Minnesota laws, and employers liability insurance with limit of not less
than$1,000,000 per accident or disease for each employee;
(b) Commercial general liability insurance, occurrence form, including, but not
limited to,contractual coverage for all of the provisions or this Agreement,with limits of
not less than $2,000,000 per occurrence and in the aggregate, $2,000,000 products and
completed operations aggregate;and$1,000,000 personal injury and advertising injury per
offense.
(c)Property coverage will be maintained providing replacement cost value for the
System pursuant to Section 5.1.2 and for property that is in Host Customer's care,
custody and control,with limits not less than the replacement value of the System. This
coverage shall include appropriate riders for specialty equipment as necessary.
16.2.2 Deductibles
In addition,Host Customer must provide the System Owner with a bona fide list of
all deductibles, retentions, or any other cost sharing agreements affecting this coverage.
These deductibles,retentions,or other forms of cost sharing shall not exceed$10,000.
16.3 Certificates
Both parties shall cause certified copies of all required insurance policies to be
endorsed by the insurance providers for the above coverages. Evidence of the above
insurance policies shall be provided on a continuous basis and on a standard ACORD form
25-5,providing not less than thirty(30)days notice of cancellation or material alteration.
The insurance certificate(s)shall reflect the following changes to standard,language:in the
cancellation clause delete"endeavor to"and"but failure to mail such notice shall impose
no obligation or liability of any kind upon the company and/or City, its agents or
representatives". All policies listed in Section lb shall grant each of the parties, their
successors,subsidiaries,directors,officers,agents and employees a waiver of subrogation.
The commercial general liability policy in Section 16.2.1(b)shall name the System Owner,
its successors, subsidiaries, directors, officers, agents and employees as an additional
insured. The property coverage policy in Section 16.2.1(c) shall name System Owner,its
successors, subsidiaries, directors, officers, agents and employees as a loss payee. The
insurance listed in Section 16.1.1 shall name the Host Customer, its successors,
subsidiaries,directors,officers,agents and employees as an additional insured.
ARTICLE XVII
ASSIGNMENT
17.1 Assignment by Host Customer
Host Customer shall not assign this Agreement without the consent of System
Owner, such consent not to be unreasonably withheld.
17.1.1 Substitute Solar Energy Power Purchase and Sale Aemment
In the event that Host Customer terminates this Agreement during the Term because
it will no longer own or occupy the Premises, Host Customer shall use commercially
reasonable efforts to facilitate discussions between System Owner and a successor owner
or occupant of the Premises regarding the sale of Output to such new owner or occupant
pursuant to an assignment of this Agreement acceptable to System Owner. In the event
that System Owner accepts such an assignment or enters into an agreement with such new
owner or occupant for the sale of Output on terms at least as favorable to System Owner
as this Agreement, then Host Customer shall have no further liability to System Owner.
Otherwise,Host Customer shall be liable to System Owner for damages in accordance with
the provisions of Article XV,
17.2 Assignment by ystem Owner
17.2.1 System Owner may, with prior written consent of Host Customer which
consent shall not be unreasonably withheld, assign its interest in and be released from its
obligations under this Agreement, as long as the assignee shall expressly assume this
Agreement and agrees to be bound by the terms and conditions hereof.
17.2.2 System Owner may, without the consent of Host Customer, (a)transfer or
assign all or substantially all of its rights and obligations hereunder to an affiliate or
successor or (b) collaterally assign to its lenders, in connection with a financing of the
System,all or any part of System Owner's rights or obligations hereunder. Host Customer
agrees to provide acknowledgements, consents, or certifications reasonably requested by
System Owner's lenders in conjunction with such financing. System Owner shall inform
Host Customer of any such transfers or assignments.
ARTICLE XVIII
MISCELLANEOUS
18.1 Disputes
The Parties agree to attempt to resolve any dispute, controversy or claim (each, a
"Dispute") arising out of or relating to this Agreement or any breach or alleged breach
hereof through an informal process that shall be assigned to an executive officer of each
Party. In the event such a process fails, each Party may seek appropriate relief in an
appropriate forum.
18.2 Confidentiality
18.2.1 Both Parties agree that this Agreement and its performance by both Parties
are proprietary and confidential to the Parties, and that disclosure of the terms of this
Agreement or of the costs incurred under this Agreement to third parties could place one
or both Parties at a commercial disadvantage. Subject to the other provisions of this
Section,each Party agrees not to disclose to any third parties the terms of this Agreement
or costs incurred by either Party under this Agreement without the other Party's prior
written consent, which consent shall not be unreasonably withheld,or to the extent of any
disclosure required under applicable law or court order;provid that disclosing Party first
shall have given advance notice to other Party so as to permit said other Party to attempt to
obtain a protective order requiring that the confidential information to be disclosed be used
only for the purposes for which the order was issued or to vacate or otherwise quash the
order or other legal process. Notwithstanding the aforementioned, System Owner will
accept reasonable public disclosures as required by applicable law or public policy. System
Owner agrees to keep confidential all documents,utility bills,architectural and mechanical
plans,and any other information provided by Host Customer under this Agreement. Each
Party may disclose confidential information hereunder to its authorized representatives,
attorneys, agents, consultants and employees on a need to know basis so long as such
persons agree in writing to be bound by the confidentiality obligations of this Section
18.2.1.
18.2.2 Notwithstanding anything to the contrary set forth herein or in any other
agreement to which the Parties are parties or by which they are bound, the obligations of
confidentiality contained herein and therein,as they relate to the transaction,shall not apply
to the U.S. federal tax structure or U.S. federal tax treatment of the transaction, and each
Parry(and any employee,representative,or agent of any Party hereto)may disclose to any
and all persons, without limitation of any kind, the U.S. federal tax structure and U.S.
federal tax treatment of the transaction. The preceding sentence is intended to cause the
transaction not to be treated as having been offered under conditions of confidentiality for
purposes of Section 1.60114(b)(3) (or any successor provision) of the Treasury
Regulations promulgated under Section 6011 of the Code and shall be construed in a
manner consistent with such purpose. In addition,each party acknowledges that it has no
proprietary or exclusive rights to the tax structure of the transaction or any tax matter or
tax idea related to the transaction.
18.2.3 The Parties agree and acknowledge that each Parry may promote the
installation and use of the System by any means;provided,that neither Party shall identify
the other by name(or in the case of the Host Customer, by location)without the consent
of the other Party and the approval by such other Party of all written materials identifying
such other Party.
18.3 Notices
Any written notice,direction,instruction,request or other communication required
or permitted under this Agreement shall be deemed to have been duly given on the date of
receipt,and shall be delivered(a)personally to the Party to whom notice is to be given,(b)
by electronic mail to the Party to whom notice is to be given (provided receiving Party
issues an electronic mail receipt acknowledgment),(c)by a recognized overnight delivery
service to the Party to whom notice is to be given,or(d)to the Party to whom notice is to
be given,by first class registered or certified mail,return receipt requested,postage prepaid
(with additional notice by regular mail),and addressed to the addressee at the address stated
opposite its name below,or at the most recent address specified by written notice given to
the other Party in the manner provided in this Section 18.3.
If to System Owner:
New Energy Equity LLC
705 Melvin Ave Suite 100
Annapolis MD 21401
If to Host Customer:
City of Golden Valley
7800 Golden Valley Road I Golden Valley,MN 55427
Attention:Eric Seaburg,E.I.T. I Engineer'ESeaburg@goldenvaUeymn.gov
18.4 Aunlicable Law and Jurisdiction:Waiver
18.4.1 This Agreement is made and shall be interpreted and enforced in accordance
with the laws of Minnesota. The Parties hereby consent and submit to the personal
jurisdiction of the courts of Minnesota
18.4.2 EACH OF SYSTEM OWNER AND HOST CUSTOMER HEREBY
WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR
ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS TRANSACTION.
18.5 Entire Agreement
This Agreement and any documents expressly incorporated herein by reference
shall constitute the entire Agreement between the Parties regarding the subject matter
hereof and supersedes all prior agreements, understandings, representations, and
statements, including any marketing materials and sales presentations whether oral or
written. There are no agreements,understandings,or covenants between the Parties of any
kind, expressed or implied, or otherwise,pertaining to the rights and obligations set forth
herein that have not been set forth in this Agreement.
18.6 Amendments and Modifications
No amendments or modifications of this Agreement shall be valid unless evidenced
in writing and signed by duly authorized representatives of both Parties.
18.7 Invalidi
The invalidity or unenforceability,in whole or in part,of any portion or provision
of this Agreement will not affect the validity and enforceability of any other portion or
provision hereof. Any invalid or unenforceable portion or provision shall be deemed
severed from this Agreement and the balance of this Agreement shall be construed and
enforced as if this Agreement did not contain such invalid or unenforceable portion or
provision. Notwithstanding the provisions of the preceding sentence, should any term or
provision of this Agreement be found invalid or unenforceable, the Parties shall
immediately renegotiate in good faith such term or provision of this Agreement to
effectuate the same intent and to eliminate such invalidity or unenforceability.
18.8 Counterpart Execution
This Agreement may be executed and delivered by the Parties in any number of
counterparts, each of which when so executed and delivered shall be an original, but all
such counterparts shall together constitute but one and the same instrument.
18.9 Neutral Interpretation
The Parties acknowledge that this is a negotiated Agreement and, in the event of
any dispute over its meaning or application,this Agreement shall be interpreted fairly and
reasonably and neither more strongly for,nor more strongly against,either Party.
18.10 Headings
Any headings or captions contained in this Agreement are for reference purposes
only and are in no way to be construed to interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
18.11 No Waiver
No waiver of any of the terms and conditions of this Agreement shall be effective
unless in writing and signed by the Party against whom such waiver is sought to be
enforced Any waiver of the terms hereof shall be effective only in the specific instance
and for the specific purpose given. The failure of a Party to insist,in any instance,on the
strict performance of any of the terms and conditions hereof shall not be construed as a
waiver of such Party's right in the future to insist on such strict performance.
18.12 Survival
Any provisions that are necessary to give effect to the intent of the Parties hereunder
after the termination or expiration of this Agreement shaft survive the tMdriation or
expiration of this Agreement.
IN WITNESS WHEREOF,the duly authorized representatives of the parties have
each executed this Solar Energy Power Purchase and Sale Agreement,as of the Effective
Date.
New Energy Equity LLC
By: 4wey,
' o
=- '�,oldenevalley
By:
Thomas D.Burt,City Manager
By:
Shepard M.Harris,Mayor
LIST OF EXHIBITS
Exhibit A Description of Premises and Site
Exhibit B System Description and Specifications
Exhibit C Solar Electricity Price
Exhibit D Sample Invoice and Electronic Fund Transfer Instructions
Exhibit E Host Customer Safety Program
Exhibit F Form of Notice of Installation Completion and Service Commencement
Date
Exhibit G Minimum Output Guarantee
EXHIBIT A
Description of Premises and Site
The solar installation with bc located on the rooftop of City of Golden Valleypublic
safety building.Detailed I ni'Ormation I'Or the building can be found on the exhibit below.
rt-eat varterwrrA
30 dor Valley q
Part
.e lAaler&:Bw4�F
;'&-*Va-,*-wnce
?'Ce Ss 3ai-Vabey R�
Exhibit A
LP�IIMOIAWW^.w"#W-71
EXHIBIT B
System Description and Specifications
The 39.36 kW(DC)solar system will consist of 96 410 Watt tenK RAIS XT-A PV
Modules,a tenK RATS Inverter Bus consisting of 72 APS micro inverters,tenK RAIS XT
PV System aluminum ballasted racking system and an Locus LGATE 320 online data
monitoring system with irradiance meter and cell temperature.
Exhibit C
Solar Electricity Price
$.08/kWh,2.5%Escalator,15 Years
Year PPA Rate
1 $0.0800
2 $0.0820
3 $0.0841
4 $0.0862
S $0.0883
6 $0.0905
7 $0.0928
8 $0.0951
9 $0.0975
10 $0.0999
11 $0.1024
12 $0.1050
13 $0.1076
14 $0.1103
15 $0.1130
EXHIBIT D
Sample Invoice and Electronic Funds Transfer Instructions
Sy INVOICE
Now Entergy EqLft LLC
W15 Aei.*Awe Ste I V--
WOKE IKX I.zq
D 2 14ti DATE C;ep-t-'ber i&zom
443-U7-30112 r-VSTO,ER ID 11ASIC,:3.4E)
www.n0wenwzegwftY.co
TO SHP TO NATtj
Fos Pa" Ch"
QYAWMV TVPW umarwo Awaut
SUBTOTAL SUBTOTAL
SALES TAX
TOTAL
Remit by check payable L. E(ectrDnic wire to;
He ;Ene-g,,.;Equity LLC Bank of America
13 veier A,.:e sit-=r ADA; 0160095,?,
ACC OUnt 9 446CZ9404717
Cledit tZ the aunt of:tWv,Energy Equity LLC
THAKV YOU FOR YOUR MAM
EXHIBIT E
Host Customer Safety Program
The Host Customer shall administer a safety protocol that will include a zero tolerance
policy for touching,interfering,moving,obstructing,or otherwise interfering with the
System Owner's array and supporting infiastructure by Host Customer staff and
contractors working on behalf of the Host Customer without the written consent of the
System Owner.
Additionally,Host Customer will assess and review its safety program with System
Owner on an annual basis and will make modifications or improvements as deemed
necessary by both parties.
EXHIBIT F
Form of
Notice of Installation Completion and Service Commencement Date
New Energy Equity LLC ("System Owner") hereby notifies {"Host
Customer") that pursuant to the Solar Photovoltaic System. Power Purchase Agreement
between the Parties dated .2014 the System has been installed and tested
successfully and is fully operational and is ready to produce Output to be delivered to Host
Customer at the Delivery Point beginning 2014, the Service Commencement
Date.
Invoicing calculations will be based on the following Meter readings recorded on
the Service Commencement Date:
B� Meter ReadingkWh
�
Upon receipt of this Notice of Installation Completion and Service Commencement
Date please sign one of the duplicate originals of this notice and return one fully executed
original to the undersigned.
Ian Palmer CEO
New Energy Equity LLC
[Date]
[Host Customer]
[Name&Title]
[Date]
Exhibit G
Minimum Output Guarantee
Minimum
Term Year Pted rodductio Output
Guarantee
1 75%of
56,938 Expected
2 75%of
56,653 Expected
3 75%of
56,370 Expected
4 75%of
56,088 Expected
5 75%of
55,808 Expected
6 75%of
55,529 Expected
7 75%of
55,251 Expected
8 75%of
54,975 Expected
9 75%of
54,700 Expected
10 75%of
54,4226 Expected
11 75%of
54,154 Expected
12 75%of
53,884 Expected
13 75%of
53,614 Expected
14 75%of
53,346 Expected
15 75%of
53,079 1 Expected
Tt•�'b't��, .aE"3
SOLAR PHOTOVOLTAIC SYSTEM
POWER PURCHASE AGREEMENT
This Solar Photovoltaic System Power Purchase Agreement ("Agreemenfis
made and entered into as of January 28, 2015 ("Effective Date"), by and between NEW
ENERGY EQUITY LLC, a Maryland limited liability company, or assigns ("System
Owner"),and the City of Golden Valley,a municipal corporation located at 7800 Golden
Valley Road, Golden Valley MN 55427, ("Host Customer). Each of System Owner and
Host Customer may be referred to herein as a"Party"and collectively,as the"Parties."
RECITALS
WHEREAS,Host Customer owns and controls certain property located in Golden
Valley,MN which uses electricity("Premises");
WHEREAS,System Owner is willing to design,install,own,operate and maintain
a solar photovoltaic electric generating system("System,),on Premises;
WHEREAS, the System would satisfy a portion of Host Customer's electricity
requirements at Host Customer's Premises, and System Owner desires to sell and Host
Customer desires to purchase,in accordance with the provisions hereof,all of the electricity
generated by the System{"Output");
WHEREAS, Host Customer is willing to provide System Owner with access to,
and the right to occupy a portion of, its property for the purpose of having the System
Owner design,install,operate and maintain the System;
WHEREAS System Owner and Host Customer agree that System Owner will
obtain and retain all Environmental Credits and all Financial Incentives and Tax Benefits
associated with the installation,ownership,operation and Output of the System;
NOW, THEREFORE, in consideration of the agreements and covenants
hereinafter set forth,the Parties hereby covenant and agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 Definitions
"Agreement"means this Solar Photovoltaic System Power Purchase Agreement,as
the same may be modified or amended from time to time in accordance with the provisions
hereof.
"Ancillary Services" means any supplemental services necessary to support the
transmission of electric power from a seller to a purchaser and available from the System
from time to time,whether existing as of the Effective Date or thereafter.
"Capacity"means electrical capacity that is dependent upon the availability and
operation of the System,measured in kilowatts.
"Contractors" means the independent contractors engaged by System Owner to
perform any of System Owner's obligations hereunder and shall include the independent
contractors subcontracted by independent contractors engaged by System Owner as set
forth in Section 4.4.
"Defaulting Party"means the Party responsible for an uncured Event of Default
"Delivery Point"means the physical location where the System connects to the Site
Electrical System.
"Dispute"means a dispute as defined in Section 18.1.
"Disruption of Delivery"means a disruption of delivery when the System Owner
is capable of generating and delivering Output to Host Customer as set forth in Section
11.3.
"Due Date"means the due date that Host Customer must pay an invoice for Output
as set forth,in Section 9.6.1.
"Effective Date"means the date of execution of this Agreement.
"Environmental Credits"means any and all federal,state or local renewable energy
or emissions credits, offsets, or green tags, whether related to any renewable portfolio
standard, renewable energy purchase requirement, carbon cap or trade market, or
otherwise, whether existing as of the Effective Date or enacted thereafter and whether
available to System Owner as owner of the System or producer of Output or available to
Host Customer as the purchaser or user of Output.
"Event of Default"means the events set forth in Section 15.1.
"Financial Incentives and Tax Benefits"means any and all federal,state or local
rebates, tax credits, energy production credits, or depreciation incentives related to any
renewable portfolio standard or other renewable energy purchase requirement or otherwise,
whether existing as of the Effective Date or enacted thereafter and whether available to
System Owner as producer of Output or available to Host Customer as the purchaser or
user of Output.
"Force Majeure"shall have the meaning set forth in Section 14.1.
14.1. "Force Majeure Event"means the events of Force Majeure as set forth in Section
"Host Utility"means the electric distribution company serving or connected to the
Host Customer.
"Indemnifying Party" means the Party responsible for indemnifying the
Indemnified Parties as set forth in Section 15.3.
"Installation Period"means the period commencing on the satisfaction of the pre-
installation conditions of Section 3.1 and continuing to the Service Commencement Date.
"Late Fee"means the late fee that System Owner may impose on Host Customer
for payments not made by the Due Date pursuant to Section 9.6.2.
"Meter" means the standard instrument(s) and equipment installed at the Site by
System Owner as Part of the System to be used to measure and record the Output delivered
to the Host Customer at the Delivery Point.
herein. "Net Metering Arrangements" shall have the meaning set forth in Section 4.7
"Non-Defaulting Party"means the Party to whom the Defaulting Party is liable in
accordance with the provisions of Article XV.
"Von-Delivery Period" means the unexcused non-delivery of Output by System
Owner as set forth in Section 15.1.1.
"Output" means, and is limited to, the electricity produced by the System and
delivered to Host Customer at the Delivery Point.
"Person" means any natural person, partnership, trust, estate, association,
corporation, limited liability company, governmental authority or agency or any other
individual or entity.
"Premises"means Host Customer's property,as described in Exhibit A.
"Services" means the design, installation and testing of the System and, upon
successful completion of installation and testing,the operation,maintenance and repair of
the System, by System Operator as necessary to produce and delivery Output to Host
Customer in accordance with the terms and conditions of this Agreement.
"Service Commencement Date"means the successful completion of the installation
and testing of the System with notice to Host Customer that the System is ready to deliver
Output as set forth in Section 4.9.
"Service Term" means the period commencing on the Service Commencement
Date and continuing until the termination of this Agreement.
"Site"means the area on the Premises described in Exhibit A on which the System
Owner will install the System.
"Site Electrical System" means Host Customer's existing building electrical
systems that are owned or leased,operated,maintained and controlled by Host Customer,
and which systems are interconnected with the Host Utility.
"Solar Electricity Price"means the price specified in Exhibit C that Host Customer
shall pay Sym Owner for the delivery of Output.
"System" means all equipment and materials, including but not limited to
photovoltaic arrays, DC/AC inverters, wiring, meters, tools, software, and any other
property now or hereafter installed, owned, operated, or controlled by System Owner for
the purpose of or incidental or useful to, maintaining and modifying the use of the solar
generation system and providing Output to Host Customer at the Delivery Point. The
System is described more particularly in Exhibit B. For the avoidance of doubt,the system
specifically excludes any part of the Site Electrical System.
"Tariff'means the tariff of the Host Utility that set forth the interconnection and
net metering standards and requirements for the System to operate and for System Owner
to deliver Output to Host Customer in accordance with terms and conditions of this
Agreement.
"Term"means the period of time that this Agreement shall be in effect as set forth
in Article IL
1.2 7nterpretalion
In this Agreement, unless the context requires otherwise,the singular includes the
Plural and the plural the singular, words importing any gender include the other gender;
references to statutes, sections or regulations are to be construed as including all statutory
or regulatory provisions consolidating,amending,replacing,succeeding or supplementing
the statute, section or regulation referred to; the words "including," "includes" and
"include" shall be deemed to be followed by the words "without limitation" or but not
limited to"or words of similar import; references to articles, sections(or subdivisions of
sections), exhibits, annexes or schedules are to those of this Agreement unless otherwise
indicated; references to agreements and other contractual instruments shall be deemed to
include all exhibits and appendices attached thereto and all subsequent amendments and
other modifications to such instruments,and references to Persons include their respective
successors and permitted assigns.
1.3 Service Contract
The Parties intend that this Agreement be treated as a"service contract"within the
meaning of Section 7701(e)of the Internal Revenue Code.
ARTICLE U
TERM
2.1 The Term of this Agreement shall commence on the Effective Date and
shall terminate fifteen (15) years following the Service Commencement Date, unless
terminated earlier in accordance with provisions of this Agreement.
2.2 At the time that Host Customer notifies System Owner of its election
pursuant to Section 12.1.6, Host Customer may request that System Owner agree to a
renewal of the Agreement beyond the end of the Service Term. Any agreement to renew
this Agreement shall be subject to negotiation and agreement between the Parties.
ARTICLE III
SYSTEM DETAILED DESIGN
3.1 Pre-Installation Conditions
3.1.1 Completion of Detailed System Design
At the time of the execution of this Agreement,Host Customer shall have provided
System Owner with all available, necessary and up-to-date Premises, Site and Site
Electrical System drawings, specifications and other documentation that System Owner
may reasonably require to develop and complete a detailed System design. For this purpose
Host Customer shall provide System Owner with access to the Premises and the Site to
verify field conditions,and shall make appropriate staff available to answer questions and
Provide information required by System Owner to support the detailed design process.
3.1.2 Receipt of Required.Third Party Authorizations
Within ten(10)days of the execution of this Agreement,Host Customer shall have
obtained or shall obtain on behalf of itself and System Owner, any and all easements,
leases,licenses,consents,acknowledgments,approvals and other rights and authorizations
from third parties,including entities or persons holding any mortgage or other lien or lease
burdening the Premises on the Effective Date, necessary for System Owner to begin
installation of the System at the Site,to install and test the System,to produce and deliver
Output to Host Customer to the Delivery Point, and to own, operate and maintain the
System under this Agreement. Host Customer shall obtain and forward the foregoing
authorizations and approvals to System fawner as each is received
3.1.3 Receipt of all Necessary Construction and Other Permits
System Owner shall apply for, pay for, and obtain all necessary construction and
other permits from local authorities and Host Utility. Host Customer shall cooperate with
System Owner as necessary in the permitting process and shall apply directly for permits
if necessary. System Owner shall deliver copies of all permits obtained to Host Customer
upon Host Customer's request,and where applicable Host Customer shall do the same.
3.1.4 Failure to Satisfy Pre-Installation Conditions
(a) If System Owner determines in its sole discretion that a pre-installation
condition set forth in this Section 3.1 cannot be satisfied, or that the System as described
in Exhibit B cannot be installed on the Site because the roof is structurally inadequate to
support the System, the Site Electrical System is inadequate to accept the Output of the
System, or architectural and other requirements are discovered that would add to the cost
of the System, System Owner will notify Host Customer that the System cannot be
constructed as proposed, and this Agreement will terminate with neither Party having
Rather obligations under this Agreement;provided however,that the Parties may agree to
amend this Agreement to accommodate a revised,feasible System in which case the Parties
shall agree to a revised System design and execute an amendment to this Agreement with
revised Exhibits A.B and C.
(b) If System Owner determines that the drawings, specifications and other
documentation associated with structural calculations, electrical upgrades or other part of
the System provided to System Owner by Host Customer pursuant to Section 3.1.1 are not
correct or complete,and that revisions thereto would add to the cost of the System,System
Owner may ask Host Customer for revised documentation or may notify Host Customer
that the System cannot be constructed as proposed and terminate this Agreement; provided
however, that the Parties may agree to amend this Agreement to accommodate a revised,
feasible System in which case the Parties shall agree to a revised System design and execute
an amendment to this Agreement with revised Exhibits A,B and C.
ARTICLE IV
SYSTEM INSTALLATION
4.1 System Installation
4.4.1 Installation Schedule
System Owner will provide Host Customer with a proposed installation schedule
and an estimated Service Commencement Date. Host Customer shall have ten (10)
business days to review and comment on the schedule,and System Owner shall revise such
accordingly if changes are required by local law, jurisdiction or best solar installation
practices;should Host Customer fail to respond in such timeframe,the proposed schedule
will be considered approved. System Owner will notify Host Customer of any material
changes to the proposed schedule and any revisions to the estimated Service
Commencement Date during the Installation Period.
4.1.2 Right of Access Dunn Instal ation Period
System Owner and its Contractors shall have the right of access specified in Article
VI during the Installation Period and will coordinate installation activities with Host
Customer to minimize interference with normal operations at the Premises, to the extent
reasonably practical and without causing undue delay in the Service Commencement Date.
Any work that requires interruption of electricity to Host Customer's Premises will be
identified in the installation schedule, and System Owner or its Contractors will receive
approval from Host Customer prior to any such interruption.
4.1.3 Installation to Specifications and Standards
Upon satisfaction of the pre-installation conditions of Section 3.1, System Owner
will begin installation at the Site. System Owner shall install, and test the System on the
Site in accordance with the technical specifications set forth in Exhibit B. System Owner
shall perform Services in a good and workmanlike manner and in compliance with all
applicable laws and regulations, including System compliance with the Host Utility's
interconnection and Tariff requirements.
4.1.4 Oatnut Dw7ng system Testing
During the Installation Period, System Owner or its Contractors may test the
System,and Host Customer shall accept delivery of any Output resulting from such testing
during the Installation Period There shall be no charge to Host Customer for Output
delivered from the System during the Installation Period.
4.1.5 Connection of Svstem to Site Electrical System
System Owner shall be responsible for the interconnection of the System to the Site
Electrical System and shall be solely responsible for all equipment, maintenance, and
repairs associated with such interconnection equipment in accordance with the terms and
conditions of this Agreement. Host Customer shall at all times own and be responsible for
the operation and maintenance of the Site Electrical System at and from the Delivery Point.
4.2 Hazardous Materials and Refi�se
4.2.1 Host Customer Rotation
Except as disclosed on Exhibit A, Host Customer represents that at the time it
executes this Agreement,it has disclosed to System Owner any and all hazardous materials
that exist at the Site or Premises in Exhibit A of this Agreement.
4.2.2 System Owner Responsibilities
During the Installation Period and thereafter,System Owner agrees and shall cause
its Contractors to agree,as follows:
(a) To take reasonable measures to reduce or mitigate noise,dust,the spread of
debris and installation materials;
(b) To remove all debris, extra materials, scaffolding, tools, machinery and
other installation materials from the Site and other work areas at the conclusion of the
Installation Period;and
(c) To use and dispose of any "hazardous materials" as defined in any
applicable federal or state environmental laws brought to the Site or the Premises in
connection with Services being performed in accordance with all applicable laws.
4.2.3 Effect of Discovery of Hazardous Materials
If System Owner or its Contractors discover any hazardous materials existing on
the Premises or the Site during the installation and testing of the System that System Owner
reasonably believes may require removal or remediation, or that otherwise impairs or
Prevents installation and testing of the System, System Owner shall promptly notify Host
Customer,and System Owner may,in its sole discretion,suspend installation or testing of
the System until such time as Host Customer has removed the hazardous materials and
remediated the Premises to System Owner's satisfaction. System Owner shall have no
responsibility or liability in respect of hazardous materials existing at the Premises(other
than any hazardous materials brought to the Premises by or on behalf of System Owner).
If Host Customer does not agree on a schedule and terms to remove the hazardous materials
which permits System Owner to resume installation within a reasonable timeframe
following the discovery of such hazardous materials at the Premises or the Site,then such
failure shall be an Event of Default, Host Customer shall be liable for damages for an
amount not in excess of the proceeds from the available insurance coverages, as a
Defaulting Party in accordance with the provisions of Article XV,and System Owner may
terminate this Agreement. System Owner and Host Customer agree to use reasonable
efforts to mitigate the damages to the Defaulting Party,including but not limited to moving
the installation to another location at the cost of Host Customer.
4.2.4 Mutual lndemnifica on
Each Party agrees to indemnify and hold harmless the other Party for any claims,
fines, damages, and costs (including attorney's and consultant's fees) arising out of
hazardous material liability to the extent the Party is responsible for such hazardous
materials and is thus an Indemnifying Party under Section 15.3. This clause shall survive
the termination of this Agreement and expiration of the Service Term.
4.3 Licenses.Permits and Inspections During Installation
System Owner shall maintain and shall ensure that its Contractors maintain all
required licenses and permits during the Installation Period. System Owner and its
Contractors shall obtain all inspections required by all authorities having jurisdiction
during the Installation Period and during the Term. Certificates of inspection or other
appropriate documentation by said authorities shall be delivered to Host Customer upon
completion of the installation of the System
4.4 Cqntrac rrs,
4.4.1 Subcontract Requirements
System Owner may hire Contractors by subcontracting the performance of any part
or all of the Services System Owner is obligated to provide hereunder. All Contractors so
engaged by System Owner shall be required by contract to have all permits, licenses,
insurance and registrations required to perform the Services subcontracted to them.
4.4.2 Identification of Contractors to Host Cua�omer
System Owner shall provide Host Customer with (a) the identification of all
Contractors to be engaged by System Owner,and(b)evidence that such Contractors have
obtained and will maintain insurance as required by Article XVI. All Contractors shall
follow Host Customer's Premises access protocols, including sign-in, security and safety
orientation,before commencing any work at the Premises.
4.4.3 Host Customer Ri&t to Remove Contractors from Site for Cause
Host Customer shall have the right to require the removal from the Site of any
Contractor or the agents, employees or subcontractors of such Contractor, who, in Host
Customer's sole judgment, exhibit unsafe work practices, unacceptable quality of
workmanship,or behavior inappropriate for the workplace.
4.5 Safe Workplace
While at the Premises and the Site, System Owner and its Contractors will take all
reasonable and customary steps to ensure the safety of workers and visitors in accordance
with all applicable laws. System Owner shall cause the work to be carried out in
accordance with Host Customer's published safety program,a copy of which is appended
hereto as Exhibit E.
4.6 Installation of Meter
System Owner shall install the Meter at the Delivery Point to measure the amount
of Output delivered by the System to Host Customer. System Owner will own, operate
and maintain the Meter during the Service Term at its own expense.
4.7 Net Metering,A_r W,,eni�
4.7.1 System Owner Notification to Make Net 1Vletering_Arrang ueu�ents
System Owner shall provide Host Customer with timely notification that Host
Customer must make Net Metering Arrangements with the Host Utility in order for System
Owner to be able to complete the installation and testing of the System. Within five (5)
business days of such notification from System Owner,Host Customer shall enter into Net
Metering Arrangements by executing such agreements as may be required by Host Utility
to permit the interconnection of the System with the Site Electrical. System and to allow
any Output of the System not consumed by the Host Customer to flow to the Host Utility.
Host Customer shall promptly provide copies of such agreements and arrangements to
System Owner when executed.
4.7.2 Required Documentation
System Owner shall provide Host Customer with documentation under System
Owner's control that the Host Utility requires by its Tariff to demonstrate that the System
complies with the requirements of the Host Utility's interconnection standards.
4.8 Internet Access
Consistent with the System Description and Specifications in Exhibit B,Host
Customer shall make available to System Owner such internet access at the Premises and
the Site as System Owner shall require for the continuous remote monitoring of the
System's operation and performance. System Owner will pay for any costs associated
with internet upgrades that are directly attributed to the System.
4.9 Notification of Service Commencement Date
Upon the successful completion of the installation and testing of the System and
Host Utility approval to operate the System, System Owner shall provide Host Customer
with notice that the System is ready to deliver Output and of the Service Commencement
Date on the form in Exhibit F.
ARTICLE V
OPERATION AND MAINTENANCE OF THE PREMISES,SYSTEM,
SITE,AND SITE ELECTRICAL SYSTEM
5.1 System Owner Operation.Maintenance and Repair of System
5.1.1 System Owner shall maintain the System in good working condition,
ordinary wear and tear,and shall operate the System in accordance with all applicable laws,
regulations and ordinances.
5.1.2 If the System is damaged due to the negligence or intentional misconduct
of Host Customer, then Host Customer shall be responsible for such costs incurred by
System Owner for the repair or replacement of the System to the extent of its negligence
or intentional misconduct.
5.2 System Owner Operation and Maintenance Contractors
5.2.1 Contractor Requirements
System Owner may engage Contractors to operate,maintain and repair the System.
System Owner shall require any such Contractors to have all licenses, permits and
registrations and obtain inspections required for such service providers, and any such
Contractors shall maintain insurance as required by Article XVI.
5.2.2 Identification of Contractors to Host Customer
System Owner shall provide Host Customer with (a) the identification of all
Contractors with whom System Owner contracts to operate, maintain and repair the
System,and(b)evidence that such Contractors have obtained and will maintain insurance
as required by Article XVI. All Contractors shall follow Host Customer's Premises access
protocols,including sign-in,security and safety orientation,before commencing any work
at the Premises.
5.2.3 Host Customer Right m Remove Contractors from Site for Cause
Host Customer shall have the right to require the removal from the Site of any
Contractor or the agents, employees or subcontractors of such Contractor, who, in Host
Customer's sole judgment, exhibit unsafe work practices, unacceptable quality of
workmanship,or behavior inappropriate for the workplace.
5.2.4 Safe Workplace
While at the Premises and the Site,System Owner and its Contractors will.take all
reasonable and customary steps to ensure the safety of workers and visitors in accordance
with all applicable laws. System Owner shall cause the work to be carried out in
accordance with Host Customer's published safety program,a copy of which is appended
hereto as Exhibit E.
5.3 Host Customer Operation.Maintenance and Repair of Premises and Site
5.3.1 Host Customer Ronsibility and Coordination with System Owner
Host Customer shall be solely responsible for the operation,maintenance and repair
of the Premises and the Site,including any repair,maintenance or replacement of the roof
on which the System is located., Host Customer will advise System owner in writing prior
to making any adjustments, modifications, or upgrades to the Premises or Site to ensure
that the Output ofthe System is not negatively impacted. The duration of any maintenance
or repair that disrupts System Output shall constitute a Disruption of Delivery on the part
of the Host Customer in accordance with Section 11.3, and shall not constitute a Non-
Delivery Period by System Owner as set forth in Section 15.1.1;provided,that if the need
for any such repair or maintenance is caused by the negligence or intentional misconduct
of System Owner,then the period required for maintenance or repair shall not constitute a
Disruption of Delivery on the part ofthe Host Customer.Host Customer and System Owner
shall coordinate such activities so as to minimize disruption to the System.
5.3.2 S@pgrate Contract to Accommodate Host Customer Site Roof ReMdr
If during the Term of this Agreement, Host Customer performs Site repairs or
maintenance which may include replacement of the roof on which the System is located,
Host Customer will contract separately with System Owner to disassemble, temporarily
relocate, move, and reassemble System components as necessary to coordinate with the
repairs, maintenance or replacement. System Owner will coordinate with Host Customer
to minimize the disruption of Output during such repairs,maintenance,or replacement,and
to restore the System to full capacity in a timely manner, provided, however that the
duration of the repairs, maintenance or replacement shall constitute a Disruption of
Delivery on the part of the Host Customer in accordance with the provisions of Section
11.3,and shall not constitute a Non-Delivery Period by System Owner in accordance with
the provisions of Section 15.1.1.
5.4 Hast Customer Maintenance and Repair of Site Electrical System
Host Customer shall maintain.the Site Electrical System in good working order,
and shall perform such other maintenance, repair and upgrades as may be required
including but not limited to such work required by the Host Utility or by applicable laws,
regulations, ordinances, and codes. Host Customer will advise System Owner in writing
prior to making any adjustments,modifications,or upgrades to the Site Electrical System
that are likely to have a material impact on the Output to ensure that the Output of the
System is not negatively impacted
The duration of any maintenance, repair, or upgrade that disrupts System Output
shall constitute a Disruption of Delivery on the part of the Host Customer in accordance
with Section 11.3,and shall not constitute a Non-Delivery Period by System Owner as set
forth in Section 15.1.1; provided, that if the need for any such repair or maintenance is
caused by the negligence or intentional misconduct of System Owner,then and the period
required for such maintenance or repair shall not constitute a Disruption of Delivery on the
part of the Host Customer. Host Customer and System Owner shall coordinate such
activities so as to minimize disruption to the System.
5.5 Notice of System Malfanction and Non-Interference
Host Customer shall notify System Owner immediately upon learning of(a) any
material malfunction of or damage to the System and(b)any interruption or alteration of
the energy supply to the Premises. Host Customer may not adjust,modify,maintain,alter,
service or in any way interfere with the System,except as authorized in writing by System
Owner,or in the event of an emergency if there is an imminent threat to life or property in
which case Host Customer shall give System Owner or its designated Contractor
immediate notice of such emergency. Host Customer shall be responsible for any damage
to the System that is caused by its negligent or intentional interference with the System.
5.6 Host Customer Continuing onsibility for Net Me-ten
nug
At all times during the Service Term,Host Customer shall maintain the Net
Metering Arrangements and any other relaxed agreements.
5.7 Host Customer Contin ' Res nsib' ' for Internet Access
Consistent with the System Description and Specifications in Exhibit B,Host
Customer shall make available to System Owner such internet access at the Premises and
the Site as System Owner shall require for the continuous remote monitoring of the
System's operation and performance.
VI
ACCESS AND SPACE PROVISIONS
6.1 Ad uate Soceftor Installation
Host Customer shall provide System Owner and its Contractors with adequate
space on the Premises and the Site during the Installation Period for System Owner's
installation and testing of the System,including reasonable staging and lay down areas.
6.2 Adequate Access for System Owner.Grant of License
6.2.1 Host Customer shall provide System Owner adequate access to the Premises
and the Site for System Owner's installation, operation, maintenance, and, to the extent
applicable,repair,replacement or removal of all or part of the System in accordance with
the terms herein. Host Customer shall provide, and System Owner shall have, access to
the Premises during regular business hours, outside of regular business hours only upon
reasonable advance request of System Owner,and at any time in the event of an emergency
as may be necessary for System Owner to fulfill its obligations under this Agreement. Such
access shall be subject to reasonable supervision by Host Customer as Host Customer may
require. System Owner shall use reasonable efforts to minimize disruption to Host
Customer's operations.
6.2.2 This Agreement shall constitute a non-exclusive license throughout the
Term of this Agreement granting System Owner reasonable access to, occupancy of and
use of the Premises for System Owner to exercise its rights and meet its obligations
hereunder according to the terms herein.Host Customer will insure that any other license
or other allowed use of the Premises shall not interfere with System Owner's reasonable
access hereunder.
6.2.3 As used in this Article VI access rights applicable to System Owner shall
include access for System Owner's agents,Contractors and assigns.
6.3 Access by Host Customer to System
Because the System will be located on the Premises,the Parties acknowledge that
Host Customer will have access to the Site for maintenance of Host Customer's property,
safety,security,and emergency purposes. Host Customer shall take all reasonable actions
to ensure that the operation of the System is not disrupted when Host Customer accesses
the Site, and that the System will not be damaged thereby as a result of the actions or
inactions of Host Customer,its designee(s)or invitees.
6.4 Prevention of Unauthorized Access
Host Customer, in consultation with the System Owner, shall develop and
implement, prior to the Service Commencement Date, written policies, systems and
Practices to prevent unauthorized access to and trespass on the System and to prevent harm
or damage to the System or to Output.
VII
ADDITIONAL COVENANTS
7.1 Ownership of System by System Owner
7.1.1 Host Customer and System Owner(a)intend that the System shall at all
times be the personal property of System Owner severable from the Site and the Premises
and shall not become a fixture and(b)shall each take such actions as are reasonably
required by the other Party to ensure that the System constitutes the personal property of
System Owner and shall not become a fixture.
7.1.2 If any person attempts to claim ownership of or other rights to the System
by asserting any claim against or through Host Customer,and such claim is not attributable
to any act or omission of System Owner, Host Customer agrees to protect and defend
System Owner's title to the System,at Host Customer's expense. Host Customer will at
all times keep the System free from any legal process and any lien not attributable to any
act or omission of System Owner, and will give System Owner immediate notice if any
legal process or lien is asserted or made against the System or against Host Customer where
the System may be subject to any lien,attachment or seizure by any Person.
7.2 Use of Premises
7.2.1 Host Customer intends to continue to use the Premises in a;manner similar
to its present use throughout the Tenn,except as has been disclosed.to System Owner by
Host Customer and included in Exhibit A of this Agreement. Host Customer shall give
reasonable prior notice to System Owner of any material modification of the Premises or
change in the use of the Premises that would have an impact on the operation of the System
or on Host Customer's consumption of Output.
7.2.2 If Host Customer provides a notice to System Owner pursuant to Section
7.2.1 that it seeks to make a material modification of the Premises or to change the use of
the Premises in a way that would have an impact on the operation of the System or on Host
Customer's consumption of Output,the Parties shall attempt to amend this Agreement so
as to preserve to System Owner the economic benefits of this Agreement prior to such
modification or change. If the Parties are unable to reach agreement on an amendment
within ten (10) business days of the date Host Customer notifies System Owner of such
change or modification,System Owner shall have the right to treat such change as an Event
of Default hereunder and terminate this Agreement. In such event,(a)System Owner shall
have the right to remove the System from Host Customer's property and the Premises and
(b)Host Customer shall be liable for damages in accordance with the provisions of Article
Xv.
7.3 Obstructions
7.3.1 Host Customer shall not install or permit to be installed on the Premises(or
any other property owned or controlled by Host Customer)any physical obstruction to the
operation of the System that reduces Output.
7.3.2 In the event that any obstruction that could reasonably be expected to reduce
Output is proposed to be erected or installed on property other than the Premises or other
than property owned or controlled by Host Customer, Host Customer shall promptly
deliver to System Owner copies of any notice relating thereto received by Host Customer,
and System Owner shall have the right to intervene or to direct Host Customer to intervene
(at System Owner's expense)in any proceeding and to contest the installation or erection
of any such obstruction. In the event such obstruction is installed,(a)System Owner shall
have the right to remove the System from Host Customer's property and the Premises and
(b)Host Customer shall be liable for damages in accordance with the provisions of Article
XV.
7.4 Status of Premises and Site
7.4.1 In the event that any or all of the Premises is or becomes subject during the
Term to a new lease, security interest, lien or mortgage,Host Customer shall require that
the lessor or the holder of such security interest, lien or mortgage enter into an agreement
with System Owner, or provide an estoppel reasonably acceptable to System Owner and
the lenders,acknowledging and recognizing System Owner's rights under this Agreement
and acknowledging that the System is the personal property of System Owner severable
fiom the Site and not a fixture.
7.4.2 If necessary after the execution of this Agreement, Host Customer shall
from time to time grant to System Owner easements, leases, licenses, consents,
acknowledgments, and approvals and other rights System Owner reasonably requires for
the installation and testing of the System,production and delivery of Output to the Delivery
Point,and the operation and maintenance of the System under this Agreement.
7.5 Host Customer's On-going Ability to Perform
During the Tenn of the Agreement and when requested by System Owner, Host
Customer shall promptly provide reasonable evidence of creditworthiness and ability to
pay amounts due under this Agreement.
VIII
ENVIRONMENTAL CREDITS AND SYSTEM ATTRIBUTES
8.1 System Attributes
System Owner shall at all times during the Term of this Agreement own and retain
exclusive rights to any and all attributes,products or economic benefits attributable to the
System or to the production and delivery of Output, including but not limited to
Environmental Credits,Capacity and Ancillary Services.
8.2 Environmental Credits
All Environmental Credits, whether available directly or indirectly, shall be and
shall remain the property of System Owner for the Service Term. System Owner shall
have sole use of such Environmental Credits and shall be permitted to use such
Environmental Credits for itself, or to sell, grant, convey, or otherwise dispose of such
Environmental Credits to any other Person, in System Owner's sole discretion. Host
Customer hereby grants,makes and conveys to System Owner an absolute and irrevocable
assignment of any and all right,title and interest Host Customer may at any time have in
or to any Environmental Credits.
8.3 Documentation
At System Owner's request, Host Customer will complete any and all
documentation required to substantiate the existence, nature, and/or quantity of
Environmental Credits produced by the System, or required,to validate System Owner's
rights to and ownership of the Environmental Credits.
TK
PURCHASE AND SALE OF OUTPUT
On and after the Service Commencement Date and through the end of the Service
Term, System Owner shall deliver and sell to Host Customer to the Delivery Point, and
Host Customer shall accept delivery and purchase at the Delivery Point, all of the Output
at the price and the terms and conditions set forth in Exhibit C of this Agreement.
9.1 Solar citvPrice
Beginning on the Service Commencement Date,the Solar Electricity Price paid by
Host Customer for Output shall be as specified in Exhibit C.
9.2 Other Electricity Purchases
9.2.1 System to Reduce Other Electricity Purchases
The Parties intend that the Output will reduce Host Customer's purchase of
electricity from the Host Utility or retail electricity suppliers, and acknowledge that the
System is not expected to meet the entirety of Host Customer's demand for electricity. To
the extent that at any time the Output is insufficient to meet all of Host Customer's
electricity demand,Host Customer will be responsible for purchasing electricity from such
other sources. The Parties further intend that Host Customer's obligations to purchase
Output shall not be reduced by the installation of another power source(s)on the Premises.
9.2.2 Other EiggIdeLty Purchase Ageements
Host Customer shall be responsible for maintaining and fulfilling all obligations to
any of its other electricity service providers, including but not limited to any competitive
electric supplier of generation or transmission services to Host Customer,and for meeting
all requirements imposed by any such electricity service provider and by any federal,state
or local government agencies with respect to such services and to the purchase of the
Output.
9.3 Sale Only to Host Customer
In no event shall System Owner sell, or be deemed to have sold, Output to any
Person other than Host Customer.
9.4 Host Customer Net Metering Obli ation
The Parties recognize and acknowledge that,from time to time,(a)the Output may
exceed Host Customer's demand for electricity or (b) Host Customer will otherwise be
unable to consume Output delivered to the Delivery Point Host Customer shall
nonetheless accept and take title to the Output at the Delivery Point and shall have in place
and maintain Net Metering Arrangements as required by Tariff or by the Host Utility to
deliver to the Host Utility any Output that exceeds Host Customer's demand for,or ability
to consume, electricity, provided that it through no cause attributable to Host Utility or
System Owner, Host Customer fails to enter into, fails to maintain or otherwise fails to
comply with the required Net Metering Arrangements, and as a result of such failure,
System Owner cannot deliver Output to Host Customer,then such failure shall constitute
a Disruption of Delivery and an Event of Default, and Host Customer shall be liable to
System Owner for the electricity that the System produced, or was capable of producing,
and that would otherwise have been delivered to Host Customer as Output,in accordance
with the provisions of Article XV,
9.5 Taxes
Host Customer shall either pay or reimburse System Owner for any and all taxes
assessed on the generation,sale,delivery or consumption of electric energy produced by
the System. For purposes of this Section, "Taxes"means any state and local ad valorem,
occupation,generation,privilege,gross receipts,sales,use,consumption,excise,
transaction,and other taxes,regulatory fees,surcharges or other similar charges,but shall
not include any income taxes or similar taxes imposed on System Owner's revenues due
to the sale of energy under this Agreement,which shall be System Owner's
responsibility.
9.6 Invoice and Payment
Following the end of each calendar month during the Service Term,System Owner
shall prepare and provide Host Customer an invoice for the Output delivered in the prior
month(or partial month ifthe Service Commencement Date is not the first day of a month).
Deliveries during the month of an anniversary date shall be prorated as to the applicable
Solar Electricity Price. The amount due for the Output shall be determined by multiplying
the applicable Solar Electricity Price by the Output delivered(or deemed delivered)to Host
Customer during such month, and each invoice shall set forth in reasonable detail the
calculation of all amounts owed. A sample invoice calculation is shown in Exhibit D.
Delays in the issuance of any such invoice shall not constitute any waiver of Host
Customer's obligation to pay once Host Customer has actually received and invoice from
System Owner,or System Owner's right to collect,any payment under any such invoice.
9.6.1 Payments
Subject to its contest rights set forth in Section 9.6.3,Host Customer shall pay the
full amount of each invoice on or before the twentieth (2CP)day following issuance thereof
("Due Date"). All payments made by Host Customer under this Agreement shall be by
electronic funds transfer pursuant to the instructions set forth in Exhibit D attached hereto,
or by check payable to System Owner (unless otherwise directed in writing by System
Owner)at the address for notices set forth in Section 18.3,as such instructions or address
may be modified by System Owner by notice to Host Customer in writing.
9.6.2 Late Payment Fees
If any part of a monthly payment is not made by Host Customer within twenty-five
(25)days following the Due Date,Host Customer agrees to pay System Owner a late fee
that shall accrue on the basis of one percent(1%)per month(or such lower percentage as
and if required by applicable law)on the amount of such late payment("Late Fee").
9.6.3 Contest Rigkts
Host Customer shall notify System Owner in writing within five(5)business days
of issuance of the monthly invoice of any portion of the invoiced amount that it has a
reasonable basis to dispute in accordance with Section 18.1 and the basis for such Dispute.
The contested portion of any invoiced amount shall not relieve Host Customer of its
obligation to pay the uncontested portion of such invoice as set forth in Section 9.6.1.
ARTICLE X
METERING
During the Service Term, System Owner shall, at its own expense, own, operate
and maintain the Meter and provide necessary Meter related services.
10.1 Meter geading
System Owner shall cause the Meter to be read at the end of each calendar month,
and shall cause the Output delivered to Host Customer to be recorded. The reading shall
be used as the basis for calculating the amount to be invoiced pursuant to Section 9.6 under
this Agree=ment.
10.2 Alternative Measures in Event of Non-Operability
If the Meter is out of service or registers inaccurately,then the measurement of the
Output shall be determined by the following alternatives,in the following order: (a)any
alternative or back-up meter that System Owner or Host Utility may have installed, if
registering accurately; (b) a mathematical calculation, if upon a calibration test of such
Meter a percentage error is ascertainable; or (c) estimates of deliveries of Output by
reference to quantities measured during periods of similar conditions when such Meter was
registering accurately.
10.3 Calibration
10.3.1 System Owner shall notify Host Customer of the time it will test and
calibrate the Meter and Host Customer may witness such testing. Host Customer may
request that System Owner to re-test and re-calibrate the Meter,and any such testing shall
be at Host Customer's expense if such tests indicate that the Meter is accurate within plus
or minus two percent(21%). Host Customer may witness any re-tests.
10.3.2 If,upon testing, any Meter is found to be accurate or in error by not more
than plus or minus 2 percent (+2%), then previous recordings of such Meter shall be
considered accurate in computing deliveries of Output hereunder,but such Meter shall be
promptly adjusted to record correctly.
10.3.3 If, upon testing, any Meter shall be found to be inaccurate by an amount
exceeding plus or minus 2 percent (±20/o), then such Meter shall be promptly repaired or
adjusted to record properly and any previous readings from such Meter used to compute
invoices for Output shall be corrected to zero error. If no reliable information exists as to
the period over which such Meter registered inaccurately,it shall be assumed for purposes
of correcting previous invoices that such inaccuracy began at a point in time midway
between the testing date and the next previous date on which such Meter was tested and
found to be accurate.
10.3.4 If upon testing, any Meter shall be found to be inaccurate by an amount
exceeding plus or minus two percent(±2%),then the payments for Output made since the
previous test of such Meter shall be adjusted to reflect the corrected readings as determined
in accordance with Section 10.3.3. If the difference in the previously invoiced amounts
minus the adjusted payment is a positive number(Meter has over-registered Output),that
difference will offset amounts owing by Host Customer to System Owner in subsequent
month(s). If the difference is a negative number(Meter has under-registered Output),the
difference shall be added,to the next month's invoice and paid by Host Customer to System
Owner on the Due Date of such invoice.
.ARTICLE XI
OUTPUT INTERRUPTIONS AND PERFORMANCE GUARANTEE
11.1 Intermittent Interruptions Are Expected
Host Customer acknowledges and understands that the System, as a solar
photovoltaic system, will produce Output intermittently, and will not provide Host
Customer with an uninterrupted supply of electricity. THIS AGREEMENT PROVIDES
NO WARRANTY OR GUARANTEE TO HOST CUSTOMER OF AN
UNINTERRUPTED SUPPLY OF ELECTRICITY. System Owner shall not be liable to
Host Customer for any intermittent interruption in Output during the Term, nor shall
System Owner be responsible for Host Customer's cost of alternative supplies of
electricity during any such interruption. If delivery of Output from the System is
interrupted other than as a result of the default, negligent acts or omissions of Host
Customer or as otherwise provided in Section 11-2, System Owner will make
commercially reasonable efforts to restore Output in a timely manner.
11.2 I_ntemMIjon of Output
11.2.1 Notwithstanding anything to the contrary herein, System Owner shall have
the right to interrupt, reduce or discontinue the delivery of Output for purposes of
inspection,maintenance,repair,replacement,or alteration of the System,or at the direction
of authorized governmental authorities or electric utilities. Other than in the event of an
unexpected interruption or in the event of an emergency, System. Owner shall give Host
Customer notice prior to an interruption of Output and an estimate of the expected duration
of the interruption.
11.2.2 System Owner shall not be required to supply Output to Host Customer at
any time System Owner reasonably believes the Site or Site Electrical System to be unsafe,
but in no event will System Owner have any responsibility to inspect or approve the Site
Electrical System. Similarly, Host Customer, should it deem System to be in an unsafe
condition,shall have the right to direct System Owner to disconnect System,or,in the case
of imminent danger caused by such unsafe condition, Host Customer may disconnect
System from its Site or Site Electrical System without penalty under this Agreement. In
such an occurrence, Host Customer shall notify System Owner of said unsafe condition
and of the emergency disconnection without delay.
11.3 Disruption of Delivery
In the event that System Owner is capable of generating and delivering Output to
Host Customer, but Host Customer fails to accept delivery of such Output(a ,Disruption
of Delivery"),Host Customer agrees to pay System Owner for such Output as follows:
11.3.1 Payments that Host Customer would have made to System Owner for
Output that would have been produced during the period of the Disruption of Delivery,as
determined by historic billing data or as represented by the National Renewable Energy
Laboratory PV Watts modeling software given the System attributes during the period of
Disruption of Delivery;
11.3.2 Beginning on the fifth (51)day following the commencement of the
Disruption of Delivery,revenues that System Owner would have received under any state
solar incentive program and any other assistance program with respect to Output that would
have been produced during the period of the Disruption of Delivery;and
11.3.3 Beginning on the fifth (5a') day following the commencement of the
Disruption of Delivery, revenues from Environmental Credits that System Owner would
have received with respect to Output that would have been produced during the period of
the Disruption of Delivery with due consideration to compliance fee payments to
governmental authorities that may be caused by the Disruption of Delivery.
9.6. 11.3.4 Payments will be made in accordance with the terms of Section
11.4 Cost to Restore Service Following Interruption
System Owner shall bear any costs associated with restoring service following any
interruption of the supply of Output from the System as a result of System Owner's
operation of the System. Host Customer shall bear the costs associated with the restoration
of the delivery of Output if an interruption is caused by the actions or inactions of Host
Customer or the condition of the Premises,Site or Site Electrical System.
11.5 Extended Performance Guarantee
11.5.1 System Owner guarantees that during the first fifteen (15_ years of
operation occurring after the date that Service Commencement Date is achieved, the
System will generate no less than the minimum number of kWh's identified in Exhibit G
"Minimum Output Guarantee"for each annual period.
11.5.2 In the event that System energy output is less than the specified minimum
kWhs for the 365 day annual period in question, System Owner shall pay Host Customer
One Time Damages amount computed by multiplying the difference in the minimum
energy output guarantee shown in Exhibit G and the actual kWh production by the
difference between the then current solar off-settable electricity raze and the Power
Purchase Agreement rate from Exhibit C;
11.5.3 In the event that the actual output of the System is below the minimum
output guarantee for an annual period, commencing on the day that Service
Commencement Date is achieved,Host Customer shall notify System Owner pursuant to
Agreement Section 18.3 "Notices"and state the number of actual kWh's produced by the
System for the annual period in question and show all calculations associated with the
Payment System Owner must make to Host Customer pursuant to Agreement Section
11.5.2 above. In addition,Host Customer will provide any necessary payment instructions
with such notification. System Owner shall pay Host Customer within thirty(30)calendar
days after receiving Host Customer's notice of payment due and supporting calculations.
ARTICLE XIII
SYSTEM PURCHASE OPTIONS
12.1 Purchase Option
12.1.1 Provided that Host Customer has fulfilled all obligations to System Owner
under this Agreement,at the expiration of the tenth(1 Ot`)year of Service Term,and at the
expiration of the Service Tenn,Host Customer shall have the option to purchase the System
by notifying System Owner in writing at least ninety(90)days prior to the end of the tenth
(10d)year of the Service Term,or at least ninety(90)days prior to the end of the Service
Term that Host Customer intends to exercise its option under this Section 12,1.
Should any unanticipated tax significantly increase the power price Host Customer
expects to pay under this Agreement,and the system has been operating for more than.six
(6)years,Host Customer shall have the right to purchase the System from System Owner
at fair market value.
12.1.2 If Host Customer exercises its option under this Section 12.1, Host
Customer shall pay System Owner an amount equal to fair market value for the System
and its Output.
12.1.3 Upon Host Customer's payment for the System, System Owner shall
furnish the System to Host Customer, including all components thereof and operation
manuals, in the condition at the time of determination of the fair market value, subject to
normal wear and tear.
12.1.4 The term "fair market value" as used herein shall mean (i) the price that
would be negotiated in an arm's-length, free market transaction, for cash, between an
informed, willing seller and an informed, willing buyer(other than the user currently in
possession), neither of whom is under compulsion to complete the transaction, for the
purchase of the System as removed from the Site at the date of determination,de-installed,
packed, crated and ready for shipment to such buyer or, if higher,as installed on the Site
and(ii)as determined by the mutual agreement of the Parties. If unable to agree,the Parties
shall select a nationally recognized independent appraiser with experience and expertise in
the solar photovoltaic industry to value the System; such valuation to be binding absent
fraud or manifest error. The costs of the appraisal shall be borne equally by the Parties. If
the Parties are unable to agree on the selection of an appraiser, such appraiser shall be
selected by the two proposed appraiser firms.
12.1.5 Transfer to Host Customer
Upon transfer of ownership of the System to Host Customer, System Owner shall
have no fiuther obligation with respect to the performance, installation, operation,
maintenance or repair of any part or component of the System;provided,however, System
Owner agrees to pass through and to transfer to Host Customer any applicable
manufacturers' warranties provided on the System, to the extent that such warranties are
transferable.
12.1.6 Non-Election and Removal
12.1.6 If Host Customer does not purchase the System pursuant to Section 12.1,or
if System Owner and Host Customer do not agree to renew this Agreement pursuant to
Section 2.2,System Owner shall,within ninety(90)days after the end of the Service Term,
remove the System from the Site at its expense including the reasonable expense of
repairing any adverse impact such removal directly causes to the Site or the Premises.
ARTICLE DTII
REPRESENTATIONS
13.1 Host Customer Representations
Host Customer makes the following representations and warranties to System
Owner:
13.1.1 Host Customer is duly authorized and has the power to enter into this
Agreement and perform its obligations hereunder.
13.1.2 Host Customer has all the rights required to enter into this Agreement and
perform its obligations hereunder, and has obtained all necessary consents, if any, from
third parties including any mortgagee.
13.1.3 This Agreement is enforceable against Host Customer in accordance with
its terms and does not conflict with or violate the terms of any other agreement to which
Host Customer is a party, including,if applicable, any agreement pursuant to which Host
Customer leases,occupies,or has financed the Premises or the Site.
13.1.4 Host Customer has no knowledge of any facts or circumstances that could
materially adversely affect its ability to perform its obligations hereunder including its
creditworthiness pursuant to Section 7.5.
13.1.5 The information provided to System Owner by Host Customer pursuant to
this Agreement as of the Effective Date is true and accurate in all material respects
including but not limited to: data concerning energy usage for the Premises; and
construction drawings for the Premises in existence as of the Effective Date.
13.1.6 Host Customer shall use its best efforts to satisfy all conditions precedent
in Section 3.1.
13.2 System Owner Representations
System Owner makes the following representations and warranties to Host
Customer.
13.2.1 System Owner is duly authorized and has the power to enter into this
Agreement and perform its obligations hereunder.
13.2.2 System Owner has all the rights required to enter into this Agreement and
perform its obligations hereunder, and has obtained all necessary consents, if any, from
third parties including any mortgagee.
13.2.3 This Agreement is enforceable against System Owner in accordance with
its terms and does not conflict with or violate the terms of any other agreement to which
System Owner is a party.
13.2.4 System Owner has no knowledge of any facts or circumstances that could
materially adversely affect its ability to perform its obligations hereunder including its
creditworthiness.
13.2.5 The information provided to System Owner by Host Customer pursuant to
this Agreement as of the Effective Date is true and accurate in all material respects.
13.2.6 System Owner shall use its best efforts to satisfy all conditions precedent in
Section 3.1.
ARTICLE XIV
FORCE MAJEURE
14.1 Definition of Force Majeure Force Maieure Events
Force Majeure means any circumstance not within the reasonable control,directly
or indirectly,of the Party affected, but only if and to the extent that(a)such
circumstance,despite the exercise of due diligence,cannot be or be caused,to be
prevented,avoided or removed by such Party,(b) such event is not due to such Party's
negligence or intentional misconduct, (c)such event is not the result of any failure of
such Party to perform any of its obligations under this Agreement,(d)such Party has
taken all reasonable precautions,due care,and reasonable alternative measures to avoid
the effect of such event and to mitigate the consequences thereof,and(e)such Party has
given the other Party prompt notice describing such event,the effect thereof and the
actions being taken to comply with this Agreement. Subject to the foregoing conditions,
Force Majeure Events may include:strikes or other labor disputes,other than strikes or
labor disputes solely by employees of the Party declaring the Force Majeure Event or as a
result of such Party's failure to comply with a collective bargaining agreement;adverse
weather conditions and other acts of nature; earthquakes;and riot or civil unrest;
provided,that Force Majeure Events shall not include any inability to make any payments
that are due hereunder or to any third party or to procure insurance required to be
procured.hereunder.
14.2 No Default
Neither System Owner nor Host Customer shall be considered to be in default in
the performance of its obligations under this Agreement to the extent that performance of
any such obligation is prevented or delayed by a Force Majeure Event.Not withstanding
any provision herein to the contrary, the Host Customer shall not be obligated to make
payments under this Agreement for any period during which the System Owner is unable
to deliver Output to the Host Customer by reason of a Force Majeure Event.
14.3 Notice and Cure
If a Party is prevented or delayed in the performance of any such obligation by a
Force Majeure Event,then such Party shall immediately provide notice to the other Party
of the circumstances preventing or delaying performance and the expected duration
thereof. Such notice shall be confirmed in writing as soon as reasonably possible. The
Party affected by a Force Majeure Event shall use commercially reasonable efforts to
remove or repair the cause of the Force Majeure Event and shall resume performance of its
obligations as soon as reasonably practicable.
14.4 Termination for Force Majeure
Either Party shall be entitled to terminate this Agreement upon ten(lo)days prior
written notice to the other Party if any Force Majeure Event affecting the other Party has
been in existence for a period of forty-five (45) consecutive days or Ionger, unless such
Force Majeure Event ceases prior to the expiration of such forty-five(45)day period.
ARTICLE XV
DEFAULT,REMEDIES AND LIMITATIONS,
INDEMNITY,RELEASE AND DISCLAIMER
15.1 Default.
Each Party(the"Defaulting Party")shall be liable to the other Party(the"Non-
Defaulting Party")for the following"Events of Default."
1.5.1.1 Failure to Perform or to Meet a Material Obligation
(a) System Owner's unexcused failure to provide any Output following the
Service Commencement Date for a period of at least sixty(60)consecutive days during the
Service Term ("Non-Delivery Period"); provided that the Non-Delivery Period shall not
include any period during which the System is not operating due to a Force Majeure Event
or any period during which the Host Customer is in default hereunder or otherwise cannot
accept delivery of Output,and such periods shall interrupt any calculation of consecutive
days. and provided, further,that System Owner's failure to deliver Output following the
Non-Delivery Period shall not be a default for so long as System Owner,at its option,pays
to Host Customer on a monthly basis in arrears the positive difference,if any,between the
Solar Electricity Price Host Customer would have paid for Output during the Non-Delivery
Period and the rate for electricity service from Host Utility in effect at the time,until such
time as System Owner restores deliveries of Output to Host Customer.
(b) Host Customer's failure to pay an invoice following the Due Date,and such
failure continues for a period of thirty(3 0)days after System Owner provides written notice
of such nonpayment to Host Customer.
(c) Host Customer's modification or change in use of the Premises without
System Owner's prior written consent in a way that will adversely affect the System,failure
to keep the System free from legal process or to accommodate a modification or change in
use of the Premises,failure to obtain an aclmowledgement from a financial entity that the
System is a fixture,or failure to demonstrate its ability to perform,all pursuant to Articles
VI and VII.
(d) Host Customer's Disruption of Delivery pursuant to Section 11.3.
(e) Host Customer's failure to remove hazardous materials pursuant to
Section 4.2.3.
(f) Host Customer's failure to maintain the Premises, Site and Site Electrical
System pursuant to Sections 5.3 and 5.4.
(g) Host Customer's failure to maintain the Net Metering Arrangements
pursuant to Section 5.6.
(h) Host Customer's failure to maintain the internet access pursuant to Section
5.7.
(i) Notice and Cure. Notwithstanding anything to the contrary herein,a Party's
failure to perform fully any material obligation under a provision of this Agreement
including but not limited to those provisions explicitly set forth in this Section 15.1.1,shall
not constitute an Event of Default unless and until either(a) such failure continues for a
period of ten(10)business days after written notice of such nonperformance from the other
Party or(b)if the nonperforming Party commences an action to cure such failure to perform
within such ten(10)business day period,and thereafter proceeds with all due diligence to
cure such failure, but such failure is still not cured within thirty (30) days after the
expiration of the initial ten(10)business day period.
15.1.2 Material Misrepresentation
Representations, warranties and other statements made by a Party that
misrepresents a material fact as of the Effective Date or thereafter, and such
misrepresentation has a material adverse effect on the other Party that is not cured within
ten (10) business days from the earlier of (a) notice from the Party affected by the
misrepresentation and (b) the discovery or determination by a Party of its
misrepresentation; provided, that if the Party that has made the misrepresentation
commences an action to cure such misrepresentation within such ten (10) business day
Period,and thereafter proceeds with all due diligence to cure such failure,the cure period
shall extend for an additional thirty (30) days after the expiration of the initial ten (10)
business day period.
15.1.3 Bankrupts
A Party(a)voluntarily or involuntarily files or has filed against it a bankruptcy or
other similar Petition, (b) enters into an assignment of its assets for the benefit of its
creditors or(c)otherwise is unable to pay its debts as theybecome due.
15.2 RqpLedies.
Upon the occurrence of, and during the continuation without cure of,an Event of
Default,the Non-Defaulting Party shall have the option,but not the obligation,to
terminate this Agreement,and the Defaulting Party shall be liable to the Non-Defaulting
Party for damages for Default.
15.2.1 If a Host Customer Event of Default occurs, (i) System Owner shall have
the right to terminate this Agreement upon thirty (30) days prior written notice to Host
Customer, and promptly following such termination, shall have the right to remove the
System from the Premises, and (ii) Host Customer shall be liable to System Owner for
actual,direct damages. At all times following an Event of Default by the Host Customer
until the termination of this Agreement, System Owner shall have the right, but not the
obligation, to deliver the Output to the Host Customer, and the Host Customer shall be
obligated to purchase and pay for such Output in accordance with this Agreement.
15.2.2 If a System Owner Event of Default occurs,then Host Customer shall have
the right to terminate this Agreement upon thirty(30)days prior written notice to System
Owner. Following such termination, System Owner shall have the right to remove the
System from the Site within thirty (30) days after such termination, and shall promptly
make or have made any repairs to the Site to the extent necessary to repair any adverse
impact such removal causes to the Site.
15.2.3 Host Customer shall be liable to System Owner for any actual, direct
damages, including but not limited to lost revenues for the sale of Output due to a
Disruption of Delivery, cause by a Host Customer Event of Default. Subject to ordinary
wear and tear ofthe System,Host Customer agrees to pay System Owner for the reasonable
costs and expenses relating to any repairs to, direct or indirect harm to, or loss of the
System,to the extent resulting from negligence or intentional misconduct of Host Customer
or any of its contractors, agents, tenants, employees, partners, owners, subsidiaries,
affiliates or invitees, or resulting from the failure of Host Customer to reasonably protect
the System from trespass or other unauthorized access as provided herein.
15.2.4 System Owner shall be liable to Host Customer for any actual, direct
damages caused by a System Owner Event of Default. System Owner agrees to pay Host
Customer for the reasonable costs and expenses relating to any repairs to,direct or indirect
harm to,or loss of the Site or Host Customer's personal property or fixtures on the Site,to
the extent resulting from negligence or intentional misconduct of System Owner or any of
its contractors, second-tier contractors, agents, employees,partners, owners, subsidiaries
or affiliates.
15.2.5 Limitation of Liability
While the Defaulting Party shall be liable to the Non-Defaulting Party for actual,
direct damages caused by an Event of Default, neither Party shall be liable to the other
Party for any special,indirect or consequential damages arising out of the performance or
non-performance of this Agreement, whether caused by negligence, tort, strict liability,
breach of contract,or breach of warranty.
15.2.6 Reservation of Rights
Neither termination nor the exercise of any other right or remedy by a Non-
Defaulting Party hereunder shall eliminate the Non-Defaulting Party's right to pursue any
other remedy given under this Agreement now or hereafter existing at law, in equity or
otherwise.
15.3 Mutual GeneralInd
To the maximum extent permitted by law, each Party hereto (the "Indemnifying
Party") shall defend, indemnify and hold harmless the other Party and the directors,
officers,shareholders,partners,agents and employees of such other Party,and the affiliates
of the same (collectively, the "Indemnified Parties"), from and against all loss, damage,
expense and liability in connection with this Agreement (including court costs and
reasonable attorney's fees)to the extent caused by, or arising out of,the negligent acts or
omissions of the Indemnifying Party, or the failure of the Indemnifying Party to comply
with the provisions of this Agreement.
15.4 Defense of Claims
An Indemnifying Party shall have the right to defend an Indemnified Party by
counsel (including insurance counsel) of the Indemnifying Party's selection reasonably
satisfactory to the Indemnified Party,with respect to any claims within the indemnification
obligations hereof. The Parties shall give each other prompt written notice of any asserted
claims or actions indemnified against hereunder and shall cooperate with each other in the
defense of any such claims or actions. No Indemnified Party shall take any action relating
to such claims or actions within the indemnification obligations hereof without the prior
written consent of the indemnifying Party, which consent shall not be unreasonably
withheld,and no indemnifying Party shall settle any such claims without the Indemnified
Party's prior written consent,unless the settlement includes a full and unconditional release
of claims against the Indemnified Party.
15.5 Release of Liens and Claims
So long as Host Customer has paid all amounts that become due and owing to
System Owner hereunder,System Owner shall hold harmless Host Customer from all liens
and claims filed or asserted by System Owner's independent contractors, second-tier
contractors or other third parties against Host Customer or the Premises for services
performed or material furnished to System Owner by such parties. System Owner shall,at
no cost to Host Customer,promptly release, discharge or otherwise remove any such lien
or claim by bonding,payment or otherwise and shall notify Host Customer of such release,
discharge or removal. If System Owner does not timely cause any such lien or claim to be
released,discharged or otherwise removed,Host Customer shall have the right(but not the
obligation)to pay all sums necessary to obtain releases,discharges or removals(including
the settlement of any lien or claim). In such event,Host Customer shall have the right to
deduct all amounts so paid (plus reasonable attorneys' fees) from amounts due System
Owner hereunder. Alternatively, upon reasonable demand by Host Customer, System
Owner shall reimburse Host Customer for such amounts
15.6 Disclaimer of Warranties
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT,NEITHER
PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO
THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER (INCLUDING ANY
SERVICES, GOODS, MATERIALS OR OTHER ITEMS SUPPLIED HEREUNDER),
INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY
PURPOSE.
ARTICLE XVI
INSURANCE
16.1 Svstem Owner's Insurance
16.1.1 System Owner's Insurance Coverage
At all times relevant to this Agreement, System Owner shall maintain (or shall
cause its Contractors to maintain),with a company or companies licensed or qualified to
do business in the State Minnesota and rated A/VIII or above by A.M.Best,the following
insurance coverage:
(a) Workers' compensation insurance in compliance with appropriate federal and
State of Minnesota laws, and employers liability insurance with limit of not less
than$1,000,000 per accident or disease for each employee;
(b) Commercial general liability insurance, occurrence form, including, but not
limited to,contractual coverage for all of the provisions or this Agreement,with limits of
not less than $2,000,000 per occurrence and in the aggregate, $1,000,000 products and
completed operations aggregate,and$1,000,000 personal injury and advertising injury per
offense;
16.2 I,Qst Customer's Insurance
16.2.1 Host Customer's Insurance Coverage
At all times relevant to this Agreement, Host Customer shall maintain, with a
company or companies licensed or qualified to do business in the Sate of Minnesota and
rated A/VIII or above by A.M. Best,the following insurance coverage;
(a) Workers' compensation insurance in compliance with appropriate federal and
State of Minnesota laws, and employers liability insurance with limit of not less
than$1,000,000 per accident or disease for each employee;
(b) Commercial general liability insurance, occurrence form, including, but not
limited to, contractual coverage for all of the provisions or this Agreement,with limits of
not less than $2,000,000 per occurrence and in the aggregate, $2,000,000 products and
completed operations aggregate;and$1,000,000 personal injury and advertising injury per
offense.
(c)Properly coverage will be maintained providing replacement cost value for the
System pursuant to Section 5.1.2 and for property that is in Host Customer's care,
custody and control,with limits not less than the replacement value of the System This
coverage shall include appropriate riders for specialty equipment as necessary.
16.2.2 Deductibles
In addition,Host Customer must provide the System Owner with a bona fide list of
all deductibles, retentions, or any other cost sharing agreements affecting this coverage.
These deductibles,retentions,or other forms of cost sharing shall not exceed$10,000.
16.3 Certificates
Both parties shall cause certified copies of all required insurance policies to be
endorsed by the insurance providers for the above coverages. Evidence of the above
insurance policies shall be provided on a continuous basis and on a standard ACORD form
25-S,providing not less than thirty(30)days notice of cancellation or material alteration.
The insurance certificate(s)shall reflect the following changes to standard language:in the
cancellation clause delete"endeavor to"and"but failure to mail such notice shall impose
no obligation or liability of any kind upon the company and/or City, its agents or
representatives". All policies listed in Section 16 shall grant each of the parties, their
successors,subsidiaries,directors,officers,agents and employees a waiver of subrogation.
The commercial general liability policy in Section 16.2.1(b)shall name the System Owner,
its successors, subsidiaries, directors, officers, agents and employees as an additional
insured. The property coverage policy in Section 16.2.1(c)shall name System Owner, its
successors, subsidiaries, directors, officers, agents and employees as a loss payee. The
insurance listed in Section 16.1.1 shall name the Host Customer, its successors,
subsidiaries,directors,officers,agents and employees as an additional insured.
ARTICLE XVII
ASSIGNMENT
17.1 Assignment by Host Customer
Host Customer shall not assign this Agreement without the consent of System
Owner, such consent not to be unreasonably withheld.
17.1.1 Substitute Solar Energy Power Purchase and Sale Agreement
In the event that Host Customer terminates this Agreement during the Term because
it will no longer own or occupy the Premises, Host Customer shall use commercially
reasonable efforts to facilitate discussions between System Owner and a successor owner
or occupant of the Premises regarding the sale of Output to such new owner or occupant
pursuant to an assignment of this Agreement acceptable to System Owner. In the event
that System Owner accepts such an assignment or enters into an agreement with such new
owner or occupant for the sale of Output on terms at least as favorable to System Owner
as this Agreement, then Host Customer shall have no further liability to System Owner.
Otherwise,Host Customer shall be liable to System Owner for damages in accordance with
the provisions of Article XV.
17.2 Assignment by System Owner
17.2.1 System Owner may, with prior written consent of Host Customer which
consent shall not be unreasonably withheld, assign its interest in and be released from its
obligations under this Agreement, as long as the assignee shall expressly assume this
Agreement and agrees to be bound by the terms and conditions hereof.
17.2.2 System Owner may, without the consent of Host Customer,(a)transfer or
assign all or substantially all of its rights and obligations hereunder to an affiliate or
successor or (b) collaterally assign to its lenders, in connection with a financing of the
System,all or any part of System Owner's rights or obligations hereunder. Host Customer
agrees to provide acknowledgements, consents, or certifications reasonably requested by
System Owner's lenders in conjunction with such financing. System Owner shall inform
Host Customer of any such transfers or assignments.
ARTICLE XVIII
MISCELLANEOUS
18.1 Disputes
The Parties agree to attempt to resolve any dispute, controversy or claim (each, a
"Dispute") arising out of or relating to this Agreement or any breach or alleged breach
hereof through an informal process that shall be assigned to an executive officer of each
Party. In the event such a process fails, each Party may seek appropriate relief in an
appropriate forum.
18.2 Confidentiality
18.2.1 Both Parties agree that this Agreement and its performance by both Parties
are proprietary and confidential to the Parties, and that disclosure of the terms of this
Agreement or of the costs incurred under this Agreement to third parties could place one
or both Parties at a commercial disadvantage. Subject to the other provisions of this
Section,each Party agrees not to disclose to any third parties the terms of this Agreement
or costs incurred by either Party under this Agreement without the other Party's prior
written consent,which consent shall not be unreasonably withheld,or to the extent of any
disclosure required under applicable law or court order; rota vided,that disclosing Party first
shall have given advance notice to other Party so as to permit said other Party to attempt to
obtain a protective order requiring that the confidential information to be disclosed be used
only for the purposes for which the order was issued or to vacate or otherwise quash the
order or other legal process. Notwithstanding the aforementioned, System Owner will
accept reasonable public disclosures as required by applicable law or public policy. System
Owner agrees to keep confidential all documents,utility bills,architectural and mechanical
plans,and any other information provided by Host Customer under this Agreement. Each
Party may disclose confidential information hereunder to its authorized representatives,
attorneys, agents, consultants and employees on a need to know basis so long as such
persons agree in writing to be bound by the confidentiality obligations of this Section
18.2.1.
18.2.2 Notwithstanding anything to the contrary set forth herein or in any other
agreement to which the Parties are parties or by which they are bound,the obligations of
confidentiality contained herein and therein,as they relate to the transaction,shall not apply
to the U.S. federal tax structure or U.S. federal tax treatment of the transaction,and each
Party(and any employee,representative,or agent of any Party hereto)may disclose to any
and all persons, without limitation of any kind, the U.S. federal tax structure and U.S.
federal tax treatment of the transaction. The preceding sentence is intended to cause the
transaction not to be treated as having been offered under conditions of confidentiality for
purposes of Section 1.6011-4(b)(3) (or any successor provision) of the Treasury
Regulations promulgated under Section 6011 of the Code and shall be construed in a
manner consistent with such purpose. In addition,each Party acknowledges that it has no
proprietary or exclusive rights to the tax structure of the transaction or any tax matter or
tax idea related to the transaction.
18.2.3 The Parties agree and acknowledge that each Party may promote the
installation and use of the System by any means;provided,that neither party shall identify
the other by name(or in the case of the Host Customer,by location) without the consent
of the other Party and the approval by such other Party of all written materials identifying
such other Party.
18.3 Notices
Any written notice,direction,instruction,request or other communication required
or permitted under this Agreement shall be deemed to have been duly given on the date of
receipt,and shall be delivered(a)personally to the party to whom notice is to be given,(b)
by electronic mail to the Party to whom notice is to be given (provided receiving party
issues an electronic mail receipt acknowledgment),(c)by a recognized overnight delivery
service to the Party to whom notice is to be given,or(d)to the Party to whom notice is to
be given,by first class registered or certified mail,return receipt requested,postage prepaid
(with additional notice by regular mail),and addressed to the addressee at the address stated
Opposite its name below, or at the most recent address specified by written notice given to
the other Party in the manner provided in this Section 18.3.
If to System Owner:
New Energy Equity LLC
705 Melvin Ave Suite 100
Annapolis MD 21401
If to Host Customer:
City of Golden Valley
7800 Golden Valley Road I Golden Valley,MN 55427
Attention: Eric Seaburg,E.I.T. J Engineer f ESeabwg@goldenvalleymn.gov
18.4 Awlicable Law and Jurisdiction;�Waiver
18.4.1 This Agreement is made and shall be interpreted and enforced in accordance
with the laws of Minnesota The Parties hereby consent and submit to the personal
jurisdiction of the courts of Minnesota.
18.4.2 EACH OF SYSTEM OWNER AND HOST CUSTOMER HEREBY
WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR
ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS TRANSACTION.
18.5 Entire Agreement
This Agreement and any documents expressly incorporated herein by reference
shall constitute the entire Agreement between the Parties regarding the subject matter
hereof and supersedes all prior agreements, understandings, representations, and
statements, including any marketing materials and sales presentations whether oral or
written. There are no agreements,understandings,or covenants between the parties of any
End,expressed or implied, or otherwise,pertaining to the rights and obligations set forth
herein that have not been set forth in this Agreement.
18.6 Amendments and Modifications
No amendments or modifications of this Agreement shall be valid unless evidenced
in writing and signed by duly authorized representatives of both Parties.
18.7 Invalidity
The invalidity or unenforceability,in whole or in part, of any portion or provision
of this Agreement will not affect the validity and enforceability of any other portion or
Provision hereof, Any invalid or unenforceable portion or provision shall be deemed
severed from this Agreement and the balance of this Agreement shall be construed and
enforced as if this Agreement did not contain such invalid or unenforceable portion or
provision. Notwithstanding the provisions of the preceding sentence, should any term or
provision of this Agreement be found invalid or unenforceable, the Parties shall
immediately renegotiate in good faith such term or provision of this Agreement to
effectuate the same intent and to eliminate such invalidity or unenforceability.
18.8 Counterpart Execution
This Agreement may be executed and delivered by the Parties in any number of
counterparts, each of which when so executed and delivered shall be an original, but all
such counterparts shall together constitute but one and the some instrument.
18.9 Neutrallnterpretation
The Parties acknowledge that this is a negotiated Agreement and, in the event of
any dispute over its meaning or application,this Agreement shall be interpreted fairly and
reasonably and neither more strongly for,nor more strongly against,either party.
18.10 HeadingsAny headings or captions contained in this Agreement are for reference purposes
only and are in no way to be construed to interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
18.11 No Waives
No waiver of any of the terms and conditions of this Agreement shall be effective
unless in writing and signed by the Party against whom such waiver is sought to be
enforced. Any waiver of the terms hereof shall be effective only in the specific instance
and for the specific purpose given. The failure of a Party to insist,in any instance,on the
strict performance of any of the terms and conditions hereof shall not be construed as a
waiver of such Party's right in the firture to insist on such strict performance.
18.12 Survival
Any provisions that are necessary to give effect to the intent of the Parties hereunder
after the termination or expiration of this Agreement shall survive the termination or
expiration of this Agreement.
IN WITNESS WHEREOF,the duly authorized representatives of the Parties have
each executed this Solar Energy Power Purchase and Sale Agreement,as of the Effective
Date.
New Energy Egaity LLC
B
y: L
v
Matth ,C
City of Golden Valley
By:
Thomas D.Bust,City Manager
By:
Shepard M.Harris,Mayor
LIST OF EXHIBITS
Exhibit A Description of Premises and Site
Exhibit B System Description and Specifications
Exhibit C Solar Electricity Price
Exhibit D Sample Invoice and Electronic Fund Transfer Instructions
Exhibit E Host Customer Safety Program
Exhibit F Form of Notice of Installation Completion and Service Commencement
Date
Exhibit G Minimum Output Guarantee
EXHIBIT A
Description of Premises and Site
The solar installation with he located on the rooftop of City of Golden Valley fire station
#3 building. Detailed information for the building; can be found on the exhibit below.
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EXHIBrr B
System Description and Specifications
The 15.58 kW(DC) solar system will consist of 38 410 Watt tenK RAIS XT-A PV
Modules, a tenK RAIS Inverter Bus consisting of 28 APS micro inverters,tenK RAIS XT
PV System aluminum ballasted racking system and an Locus LGATE 320 online data
monitoring system with irradiance meter and cell temperature.
Exhibit C
Solar Electricity Price
5.081 kWh,2.5%Escalator, 15 Years
Year PPA Rate
1 $0.0800
2 $0.0820
3 $0.0841.
4 $0.0862
5 $0.0883
6 $0.0905
7 $0.0928
8 Mom
9 $0.0975
10 $0.0999
11 $0.1024
12 $0.1050
13
$0.1076
14 $0.1103
15 $0.1130
EXHIBIT D
Sample Invoice and Electronic Funds Transfer Instructions
NEW ENERGY
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THM YOU FOR YOUR BUSIMESSI
EXIUBIT E
Host Customer Safety Program
The Host Customer shall administer a safety protocol that will include a zero tolerance
policy for touching,interfering, moving, obstructing, or otherwise interfering with the
System Owner's array and supporting infrastructure by Host Customer staff and
contractors working on behalf of the Host Customer without the written consent of the
System Owner.
Additionally, Host Customer will assess and review its safety program with System
Owner on an annual basis and will make modifications or improvements as deemed
necessary by both parties.
EXHIBIT F
Form of
Notice of Installation Completion and Service Commencement bate
New Energy Equity LLC ("System Owner") hereby notifies ("Host
Customer") that pursuant to the Solar Photovoltaic System Power Purchase Agreement
between the Parties dated_ .2014 the System has been installed and tested
successfully and is fully operational and is ready to produce Output to be delivered to Host
Customer at the Delivery Point beginning , 2014, the Service Commencement
Date.
Invoicing calculations will be based on the following Meter readings recorded on
the Service Commencement Date:
Buiidina Meter Reading_OkMN
Upon receipt of this Notice of Installation Completion and Service Commencement
Date please sign one of the duplicate originals of this notice and return one fully executed
original to the undersigned.
Ian Palmer CEO
New Energy Equity LLC
[Date]
[Host Customer]
[Name&Title]
[Date]
Exhibit G
Minimum Output Guarantee
Expected minimum
Term Year production output
Guarantee
1 75%of
22,267 Expected
2 75%of
22,156 Expected
3 75%of
22,045 Expected
4 75%of
21,935 Expected
5 75%of
21,825 Expected
6 75%of
21,716 Expected
7 75%of
21,607 Expected
8 75%of
21,499 Expected
9 75%of
21,392 Expected
10 75%of
21,285 Expected
11 75%of
21,178 Expected
12 75%of
21,072 Expected
13 75%of
20,967 1 Expected
14 75%of
20,862 Expected
15 75%of
20,758 Expected
B&F Rev 1
SUNDIAL ENERGY
SOLAR PHOTOVOLTAIC SYSTEM
REMOVAL AND REINSTALLATION AGREEMENT
RECITALS:
This ("Agreement") is made and entered into as of , 2015
("Effective Date"), by and between Sundial Energy LLC, doing business as SUNDIAL
SOLAR., a Minnesota company ("Contractor"), and the City of Golden Valley
("Customer"). Contractor and Customer are sometimes referred to individually as a
"Party" and collectively as the "Parties."
WHEREAS, Contractor is engaged in the business of engineering, procuring,
constructing and commissioning solar PV systems and has proposed a ("Contract
Price") for the removal and reinstallation of a Solar Photovoltaic System ("System") as
described by this Agreement; and
WHEREAS, Customer desires to contract with Contractor for removal and
reinstallation of the System described by this Agreement, and in accordance with the
terms and conditions of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Parties, and for the mutual
covenants contained herein, Contractor and Customer hereby agree as follows:
ARTICLE 1 SCOPE OF SERVICES
1.1 In the event Customer needs to replace a roof during the Term, Contractor shall
remove all solar equipment and interconnection components of the System, and
reinstall the System after the roof has been replaced, all as specified by this Agreement,
at the following Site owned by Customer:
Fire Station #3, 3700 Golden Valley Rd.; Public Safety, 7700 Golden Valley Rd.;
Park Maintenance, 7708 Golden Valley Rd.
Contractor's services related to the foregoing ("Scope of Services") shall be provided at
a fixed price ("Contract Price") and shall include all materials and labor, obtaining and
paying the fees for all required permits, and all other acts necessary to remove and
reinstall the System as specified by this Agreement.
1.2 At such time requested by Customer, Contractor shall remove all equipment that
is part of the System at the Site, including but not limited to:
a) The solar PV array including the number of PV modules necessary to
meet or exceed the desired DC power rating for the System.
b) Rigid metal frame and mounting system customized to the installation.
B&F Rev 1
C) All electrical components including conductive wiring, ground circuitry,
conduit, junction boxes, disconnects, switches, over-current protection, and any
associated hardware that was necessary to complete the installation to the point of
interconnection with the building and the utility grid.
d) UL listed and approved DC-to-AC inverters specifically matched to this
installation.
e) All other equipment and materials that was necessary for installation of
this PV system.
f) Electrical meter and production meter as required by the local utility.
g) Web-based solar production monitoring package.
1.3 Upon completion of removal and/or reinstallation, Contractor shall provide
Customer with all documentation necessary for Customer to determine that the System
has been removed from and/or reinstalled in full working order on the Site.
1.4 Customer may request Contractor to remove some or all of the solar equipment
temporarily for purposes of repairs, maintenance or replacement of roof systems or
other building systems.
1.5 Contractor's Scope of Services and Contract Price under this Agreement shall
include removal, temporary storage of solar equipment, and re-assembly/reinstallation
of solar equipment to its former condition, including interconnection to building and utility
electrical systems.
1.6 Except as specified, this Agreement does not include any other upgrades,
modifications, or repairs to any existing mechanical, electrical, plumbing or similar
system, even if necessary to remove the System. Except as specified, this Agreement
does not include any structural, architectural, or esthetic upgrades or additions that may
be necessary to properly remove the System or as may be requested by Customer.
ARTICLE 2 REMOVAL AND REINSTALLATION
2.1 Contractor shall manage its on-site construction services to minimize disruption
to the Customer and shall coordinate any required service interruptions to Customer or
Customer's facilities with Customer prior to such an event. Contractor shall supervise
and coordinate the performance of on-site work by its agents or employees and all
subcontractors or other third parties.
2.2 Prior to removal and reinstallation, Customer and Contractor shall negotiate a
plan for such work ("Work Plan") that will be the basis for Contractor's onsite work, the
timetable for removal of and reinstallation of the System, and the schedule for payments
by Customer. Contractor shall promptly notify Customer of any changes in the Work
Plan or timetable when Contractor becomes aware of such changes and shall
recommend amendments to the Work Plan as needed. Customer may request meetings
or written updates on the Work Plan and timetable for removal of the System and
Contractor will reasonably respond to such requests.
B&P Rev 1
2.3 All work shall be supervised by Contractor and performed by employees, agents
or subcontractors that are experienced in the removal and reinstallation of the specified
solar equipment.
2.4 All work related to disconnecting and reconnecting the System from the building
electrical systems and the electrical grid shall be performed by an experienced
journeyman or master electrician licensed for performance of such disconnections by
the State of Minnesota.
2.5 As part of this Agreement Contractor will not remove the web-based system for
monitoring System performance unless some or all of the components are in the way of
the roofing work being performed. If removal is needed, only those components that
directly affect the re-roofing project will be removed. All removed components will then
be reinstalled upon completion of the re-roofing project.
2.6 All labor to remove and reinstall the System shall be performed by Contractor or
its direct subcontractors. All workers will be required to conform to OSHA safety
practices and procedures during construction activities and will be required to conform
to Contractor's written safety plan. A copy of Contractor's safety plan will be provided to
Customer at Customer's request.
2.7 Contractor shall be responsible for any costs of disposal, transport, storage or re-
deployment of the System or any of its components.
2.8 Customer shall provide full and clear access to the site as identified in this
Agreement, including the building, power panels, roof area, interior rooms or any other
area reasonably necessary for Contractor to remove the System.
2.9 Customer shall cooperate with Contractor to obtain all required licenses, permits,
utility Interconnections and approvals necessary for removal and reinstallation of the
System. Customer shall cooperatively support all other activities that Contractor must
perform to the extent necessary to remove the System and reinstall the system upon
completion of the re-roofing project.
2.10 Contractor shall not be held liable for any incidental costs incurred by Customer
as a result of the System removal and reinstallation as specified herein, including but
not limited to, work time lost by Customer, its employees or agents, or any interruption
of electrical service, or suspension of mechanical services.
ARTICLE 3 CONTRACT PRICE
3.1 The total Contract Price for removal, and reinstallation of the System as
described by this Agreement, unless amended by Change Order, is guaranteed not to
exceed fifty cents ($0.50) per watt of DC nameplate capacity for the System. The
Parties acknowledge that this Agreement is based on a price denominated in 2015
B&F Rev 1
dollars and shall escalate at a rate of three percent (3%) per year for the duration of the
System's operation.
3.2 Customer shall make payment to Contractor on the terms and conditions as
defined in the Work Plan developed and agreed to by the Parties.
ARTICLE 4 DISPUTE RESOLUTION, AMENDMENT, CANCELLATION, TERM
4.1 The Parties shall make good faith efforts to resolve any claims, disputes or other
matters related to this Agreement by mediation. If mediation does not resolve the claim
or dispute, either Party may propose resolution by binding arbitration by written notice to
the other Party. Within 30 days of such written notice, the Parties shall agree on a single
arbitrator or each Party shall select an arbitrator that will select a third-party arbitrator for
the dispute. Arbitration shall take place in the seven-county metropolitan area of
Minneapolis-St. Paul. The Parties shall equally share the cost of any arbitrator fees or
any filing fees.
4.2 Either Party may cancel this Agreement in the event of a default or failure to
meet the terms and conditions of this Agreement by the other Party which is not met or
cured within 10 days of receiving notice of default or failure.
4.3 Cancellation of this Agreement shall be done by written notice to the other Party.
The Parties shall equitably agree on reimbursement of costs incurred prior to the date of
cancellation.
4.4 This Agreement may be amended only by written agreement of both Parties.
4.5 The term of this Agreement (the "Term") shall commence on the Effective Date
and continue for fifteen years thereafter.
ARTICLE 5 FORCE MAJEURE
5.1 Force Majeure shall mean any event or circumstance not within the control of the
Parties to the extent that the circumstance could not be prevented or avoided by a
Party, the event is not due to a Party's negligence or willful misconduct, or such an
event is not the result of any failure of a Party to perform any of its obligations under this
Agreement.
5.2 Force Majeure events may include but are not limited to Acts of God, war,
terrorism, riot or civil unrest, labor strikes, fire, floods, epidemics, or hazardous materials
existing on the Site prior to Contractor's start of construction.
5.3 Neither Customer nor Contractor shall be considered in default or breach in the
performance of their obligations under this Agreement to the extent that performance of
any such obligation is prevented or delayed by a Force Majeure circumstance or event.
B&F Rev 1
ARTICLE 6 INDEMNIFICATION and LIABILITY
6.1 To the maximum extent permitted by law, Contractor shall defend, indemnify and
hold harmless Customer from and against all loss, damage, expense and liability in
connection with this Agreement resulting from injury to or death of persons, and
damage to or loss of property, to the extent caused by or arising out of the willful acts,
negligent acts or omissions of Contractor or its failure to comply with the provisions of
this Agreement.
6.2 Except for claims related to gross negligence or willful misconduct, Contractor's
liability for claims by Customer shall not exceed the Contract Price. Neither Party shall
be liable to the other Party for any consequential or indirect loss or damage arising out
of this Agreement. The Parties further agree that the waivers and disclaimers in this
Agreement shall survive the expiration, termination or cancellation of this Agreement.
ARTICLE 7 INSURANCE
7.1 Contractor shall maintain and shall cause its subcontractors to maintain
insurance with a company or companies licensed or qualified to do business in
Minnesota. The following insurance shall be maintained during the entire period of
Contractor's performance under this Agreement, including the two-year period of
Contractor's labor warranty:
(a) Workers' compensation insurance in compliance with the laws of the State
of Minnesota, and employers liability insurance with a limit of not less than $1,000,000
per accident or incident for each employee;
(b) Commercial general liability insurance with coverage for all of the
provisions or this Agreement, with limits of not less than $2,000,000 per occurrence and
$1,000,000 for personal injury per offense;
(c) Automobile liability insurance, including vehicles owned, hired and non-
owned, with a combined single limit of not less than $1,000,000 per accident.
Contractor shall provide an insurance endorsement as proof of liability coverage
specified above. The endorsement of insurance shall name the City as an additional
insured and state that the Contractor's coverage shall be the primary and non-
contributory coverage in the event of a loss. Further, the endorsement shall provide for
written notice to the City, in accordance with the terms of the insurance policy before
cancellation, expiration, or change of coverage.
ARTICLE 8 MISCELLANEOUS PROVISIONS
8.1 Written notices or request for information under this Agreement shall be delivered
to the Party to whom notice is given by electronic means, a recognized delivery service,
or by first class or certified mail at the addresses below. Changes in addresses for
purposes of written notices shall be promptly provided to the other Party.
B&P Rcv 1
8.2 This Agreement is made and shall be interpreted and enforced in accordance
with the laws of the State of Minnesota without regard to conflict of law provisions. The
Parties hereby consent and submit to the personal jurisdiction of the courts of the State
of Minnesota.
8.3 This Agreement together with any attachments and exhibits shall constitute the
entire Agreement between the Parties and shall supersede all prior agreements,
understandings, representations, and statements, whether oral or written.
8.4 No amendments or modifications of this Agreement shall be valid unless in
writing and signed by duly authorized representatives of both Parties.
8.5 The invalidity or unenforceability of any portion or provision of this Agreement
shall not affect the validity and enforceability of any other portion or provision. Any
invalid or unenforceable portion or provision shall be deemed severed from this
Agreement and the balance of this Agreement shall be construed and enforced as if this
Agreement did not contain the invalid or unenforceable portion or provision. Any
provisions necessary to give effect to the intent of the Parties to this Agreement shall
survive the termination or expiration of this Agreement.
8.6 Neither Party shall assign this Agreement without the written consent of the other
Party, such consent not to be unreasonably withheld.
IN WITNESS WHEREOF, the Parties have executed this Agreement, as of the above
date above.
Sundial Energy LLC
By:
Its:
City of Golden Valley
By:
Thomas D. Burt, City Manager
golde, n 40�� ANDUM
0 ..
valley, Public Warks Department
763-593-8030/763-593-3988(fax)
Executive Summary For Action
Golden Valley City Council Meeting
February 17, 2015
Agenda Item
3. I. Authorize Agreement with SEH, Inc. for Final Design and Construction Observation for
Glenwood Avenue (CSAH 40) Sidewalk Extension Project
Prepared By
Jeff Oliver, PE, City Engineer
Eric Seaburg, EIT, Engineer
Summary
Hennepin County has established a Sidewalk Participation Program to support and enhance the
network of sidewalks along Hennepin County roads. The County offered a grant of 25%
contribution up to a maximum of$50,000 for any sidewalk project within the right-of-way of a
County road. In the Fall of 2013, by resolution of the City Council, the City applied for and was
awarded maximum funding for the Glenwood Avenue Sidewalk Extension Project (2015 CIP
Project 5-030, page 98).
Glenwood Avenue currently does not have sidewalk between Harold Avenue and Trunk
Highway 55. This segment is listed in Hennepin County's Pedestrian Plan as a high priority for
improvements. It is also listed in the City's comprehensive plan as a high priority sidewalk
connection. Currently, sidewalk exists on the south side of Glenwood Avenue from Harold
Avenue to the City's eastern border with Minneapolis. Filling this gap will provide pedestrians a
safer and more efficient access to amenities north and south of Trunk Highway 55. The sidewalk
extension will also complete the sidewalk system along Glenwood Avenue.
The City has received a proposal from SEH, Inc. for professional services for this project in the
amount of$96,800. The attached proposal includes the following the following work items:
Site Survey
Preliminary and Final Design
MnDOT/County Coordination
Construction Staking
Construction Observation
The City's 2015-2019 Capital Improvement Program, Streets Section (5-030, page 98) provides
$200,000 in 2015 for this project. With contributing funds from Hennepin County, this project will
have a budget of$250,000. Staff is requesting that the City Council authorize the professional
services agreement with SEH, Inc. for this project.
Attachments
• Location map (1 page)
• Professional Services Agreement from SEH, Inc. to Jeff Oliver, dated January 19, 2015, for
Glenwood Avenue Sidewalk Extension (7 pages)
Recommended Action
Motion to authorize agreement with SEH, Inc. for professional services on the Glenwood Avenue
Sidewalk Extension Project in the amount not to exceed $96,800.
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Glenwood Ave Sources:
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Sidewalk Extension Property Lines(2015)&Aerial Photography(2012).
-City of Golden Valley for all other layers.
Project No. 15-09 0 200 400 800
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January 19, 2015 RE: City of Golden Valley, Minnesota
Glenwood Avenue Sidewalk Extension
SEH No. 15-09 14.00
Mr. Jeff Oliver
City Engineer
City of Golden Valley
7800 Golden Valley Road
Golden Valley, MN 55427
Dear Jeff:
Thank you for the opportunity to provide professional services to the City of Golden Valley for the
Glenwood Avenue Sidewalk Extension Project. The City is requesting a scope of work that includes
preliminary design, final design, plan preparation, bidding services, and construction administration. This
letter serves as the Supplemental Letter Agreement in accordance with the Agreement for Professional
Services between the City of Golden Valley and SEH.
BACKGROUND
The City of Golden Valley proposes to construct one block (approximately 450 feet) of new sidewalk
along the west side of Glenwood Avenue from Hwy 55 to Harold Ave. There is currently a crosswalk on
the east side of Hwy 55 at Glenwood Ave but the pedestrian facilities do not extend south from the
intersection. There is existing sidewalk on the west side of Glenwood Ave, south of Harold Ave and along
the south side of Harold Ave, west of Glenwood Ave. The proposed sidewalk would connect this existing
sidewalk to the existing crossing at Hwy 55. In addition to the new sidewalk, ADA upgrades to the existing
facilities at Harold Ave and at Hwy 55 (both sidewalk and signals).
SCOPE OF WORK
Preliminary Survey
SEH will provide preliminary survey services for the project. The proposed survey work will include
obtaining vertical and horizontal control, available property corners and monument control, topographic
features, profiles and cross-section information. SEH will request a Gopher One State design locate to
gather private utility information and determine potential impacts.
Meetings/Project Communication
We propose to attend a kick off meeting with Public Works Staff at the beginning of the project. The
purpose of this meeting will be to confirm the goal of the project, identify concerns and determine options
available to the design team. SEH will develop a preliminary design and conduct a 60% design review
with Public Works Staff. A public meeting with adjacent property owners will also be held at this time to
Engineers I Architects I Planners I Scientists
Short Elliott Hendrickson Inc.,3535 Vadnais Center Drive,St.Paul,MN 55110-5196
SEH is 100%employee-owned I sehinc.com 1 651.490.2000 1 800.325.2055 888.908.8166 fax
Mr. Jeff Oliver
January 19, 2015
Page 2
review the project details and discuss potential easement needs. We also expect to coordinate the design
with MnDOT and County Staff for review and approval.
Preliminary Design,Final Design and Plan Preparation
SEH will prepare a preliminary design for the project based on discussions from the first meeting with City
Staff. Existing profiles and alignments will be reviewed and optimized for public safety as well as limiting
construction limits along the project. Public utility improvements are expected to be limited to a hydrant
relocation/replacement. Coordination with private utilities is anticipated as some relocations may be
required. A drainage culvert may need to be extended and signal upgrades are expected at Hwy 55.
Depending on the final alignment of the proposed sidewalk, a retaining wall may be required near
Hwy 55. If a wall is required within the Hwy 55 right-of-way, a MnDOT structural review will be required.
Construction plans will be prepared according to City standards and final plans will be submitted to City
Staff for review and approval.
Construction Staking
SEH will provide a survey crew for construction staking of the proposed improvements. Staking tasks for
this project will include removals, placement of horizontal and vertical control, utility staking for public
utilities, pedestrian ramp stakes, and signal stakes. All survey coordination for construction staking and
observation will be between the survey crew chief and the RPR.
Resident Project Representative(RPR)
The on-site Resident Project Representative (RPR) is the Engineer's agent in the field and will act as
directed by and under supervision of the Engineer. The RPR shall serve as the liaison with the contractor,
working principally through the contractor's superintendent. They will assist in helping the contractor
understand the intent of the Contract Documents. The field personnel will review the progress schedule,
shop drawings, and required submittals, Schedule of Materials Control and consult with the Engineer
concerning acceptability. The RPR will be responsible for maintaining job site files, for correspondence,
meeting reports, field orders, and supplemental agreements. They will keep a daily diary or log book.
Records pertaining to quantities and applications for payment will be the responsibility of the RPR. The
RPR will also keep information pertaining to record plans and will schedule the survey crew based on the
staking requests from the contractor's representative. The proposed budget assumes 4 weeks of
construction.
Record Plan Services
SEH will perform a record survey of the project area, which includes providing final top of structure and
invert surveys on new sewer structures. Benchmarks will be reestablished in the construction areas in
conjunction with the record survey. The City will complete the record drawings for all project areas.
PROJECT TEAM
Mike Kuno will be the Project Manager. Tim Wegwerth is assigned to the project as the Project Engineer,
providing preliminary and final design along with technical production work. Mike Kotila and John Gray
will provide the traffic and signal analysis. Other technical experts may be called upon to provide analysis
or participate in public meetings, depending on the actual project scope. Troy Anderson will provide RPR
services for the project. Sue Mason and Mike Kuno will attend the meetings with City Staff and the public
meeting.
SCHEDULE
We expect to begin working on the project as soon as the contract is signed. We anticipate preliminary
design to begin in January and would like to have 60% design completed and meet with adjacent property
owners in March. Final design will be completed by the end of March and plans will be submitted to the
Mr. Jeff Oliver
January 19, 2015
Page 3
City, Hennepin County, MnDOT and necessary agencies for review. Bidding will be dependent on the
review time required by the agencies.
COMPENSATION
SEH proposes to be compensated for the scope of work proposed in this Agreement on an hourly basis.
Compensation will be based on the hourly cost of personnel plus reimbursable expenses, including
reproductions, mileage and equipment. We have estimated the services described above to cost a total of
$96,800. The person/hour task budgets for each phase of the work are attached. The summary of
engineering services is as follows:
Meetings and Public Involvement $ 2,700
Preliminary Design $ 15,300
Final Design & Plan Preparation $ 45,200
Construction Administration/Observation $ 33,600
Glenwood Ave Sidewalk Extension $ 96,800
This agreement is an understanding of the project to date. If this document satisfactorily sets forth you
understanding of our agreement, please sign in the space below and return one copy to our office.
We look forward to working with you, your staff and the community on this project. Thanks for the
opportunity to continue to work with the City of Golden Valley.
Respectively submitted,
SHORT ELLIOTT HENDRICKSON, INC.
an M. Mason, PE Mike Kuno, PE
Principal Project Manager
ah
Approved this day of ' 2015
City of Golden Valley, Minnesota
By:
s:\fj\g\goldv\common\proposals\2015 glenwood ave sidewalk\letter agreement 2015 pmp_ah.docx
Glenwood Ave Sidewalk Extension Project
City of Golden Valley
SEH GOLDV#131160
January 19,1015
Prof.Client pinjert Graduate Graduate Prof. Gn.d..h, P.C. Graduate Rrid— S'"C-
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Task#1 rojei,t Manancmcnt
1.0 Meetings(Notice,Age.d.,Material,,Mi.aw,)
KickolTmecting-th Cut,Stall' 2 1 4 6
Kickoffnicefing with SEH Staff
—P,edcsien meetingWith utilities
Neighborhood inwing 15
Design review meetings
Deiagn learn meetings
CihC"ncilm"ting"
ic informational..ttt np,
!Final design—ow mectitu,
ITask Hour.,S..— 2 In
Task#2-Preliminan En-_i.—i.L
2.0 Data Collection
Collect Data from Client
Televise me tapes/lo gs
As-built tans
Parcel information
CAD b.s—aps
GIS na.ppirig
Existing—ter plimWmiidi.
Traffic counts
Properh m-cr information
Public works rports
Gecamhnical reports
Acnal alappinR/pholo grap by
Contours
Latest Client standards(recent proposal forn.
Prow tiholo garanlis(dri—a—sidewalks.landl, 3
lUlili(,One Call/prii ate utility maps
Existin topmraphic su—/point file
ISubtotal He-
4
2.1 Field Investigation
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Rme,traffic signs condition
Reim strect halits condition
Review traffic signals condition 3
Observe surface dr ainanc
Re,ic„street closure detour a,acts
ISubtotal Hours 3 —3
2.2 Prclinvii—Street and Unlit,De,ign
Reduce sur—data into basenrap
D—lep project surface model 1 I
Create-istimgcontours 1 I
Create street hpical sections 1 I
Establish proposed horizontal and vertical sinxt 1 4 8 14
Do clop and review cross sections/tic ins 4 8 12
Do,clop existing utilities in plan and profile I I
Drainage/Storm Smer Design
Idc,,I.f,storm catents 1 4
Pre parc proposod storm sewer la,out 2 2
Idmtifv tribulan storm,ater draana�c areas
Identify proposed sum p pu p connections
D—lop subcu(draintile netvrk —
Calculate design fl—s 3
S—proposed storm sm er system
Adjust street profile/storm sewer tooph drainage
Sanitary So—Design
Identif,sanitan sc,cr imp o,cmaits
blockapes
in pipe
Nmivt versus tocrichless repair areas
Revica,services
Develop manhole impro—cris plan
Dc,do reconstmction
Water Mai.Desig.
ldcntiP,—ter main nupro-meats
Id.,tif,—sting and prop.ed valves and hydrants
Dci clop recmmendod phasing plan
Roi-services
Determine tem poran water needs ilayout
D—lop reconstruction oIan
Street Lighting
ldmtif,street lighti-impr—icats
Idm(if%connection points
Develop street lighting la,o t
Glenwood APe Sidewalk Eetemion Project
w
City of Golden Valley
SEN GOLDV#131160
January 19,2015
Client Prnixr Gtmdmur RnE Grxduxte P.A G—I.— Prof. Graduxte Resident Sune�Crex Smsey
Billing Tirle aSr^ni MnI'.nu Engineer Fn_!.— Engineer Engimi E.,m-� Engh P -RrP. Chirf Ins eat Admin Teiii
O tir 1nixl
Tim NN...e LA, Ax to T.- Ni,k An,jir
Em rlo—Name Sue NI—n Mike Kunn wr;,�riYh N'ambnld Thnmlxi, Ron Leaf Ni'm Jahn Grx Sown]Eng. Andel. Drnn S.—,Inr 11
Trallic Ucsi"n -
Conduct traffic counts
Develop intersection geometric layouts 1 2 1 7
ldentifv trade si nin/si nal ou rovemem, I _ a 7 11
Sinal Justification Report - 10
Cost Estimating
Pr arc prelimmanuantitc estimate
Prepare relimmary cost estimate 1 1
Subtotal Hours 1 13 44'11 E= 2 2 12 10 6%
2.3 IRiaht of .v/Easements
Idcntif r
- c lancnt ri ld of—/easement needs
De, ri ht of wa,/easement documents
Devclo d hl of wac/easement cost estimate
Subtoml Hours
Task Hours Sumnwn J13 11 1 1 2 2 1 15 In 7;
Task#3-Bid Documents
3.0 De,elo t Convtructiun Plans
Title Sltav
I
Legend 1
I
General Layout 1 1
Orientation/Sunev Control I I
Estimated Ouantitics 2
Utility Tabulations(existing and proposed) I I
Earthwork Tabulation I 1 1 -
TN meal Sections 1 1
General Notes _ 1
6
Right of Wa/Easements I 1 -
Sequence of Operations/Phasing 12 3
Trallic Control 1 1 -
Erosion Control _ 3
Storm Water Pollution Prevention Plan SX'PPPI
E—ting Conditions/Remocals 1 1 -
Plan and Profile Sheets-street and stmnu sco cr _ a f
Plan and Profilc Shorts-sanitan soca and-n,
Retaining Wall _ 16 51 qg
Sidnvalk/Ped Ram s Layouts _ s 111
Pavement Markings/Signing 1
Street Lighting
Trak Si nals I 1 ru -
Cross Sections 1 1 -
Details/Standard Plates _ u 111
Quality control review x x 16
Construetability R.4- 1 1 1 12
Project site,alklhrou li plan re,ictc 1 1
Subtotal Hours % 36 87 1 6 51 20 1 215
3.1 Project Manual
Front end docun cats 2 1
Bidding requirements 1 2 3
Gcotwlmical data 1 2 3
Contract forms 1 1 _
Conditions of the contract 1 1
SupplementarN conditions 2 2 1
S ,cud ro'nions
Technical specifications 16 d 20
uahty control review 2 2 2 6
Subtotal Hours 1 _ 1 26 16 11
3.2 uantities,Bid Tab,Engineer's Estimate
Decclo statemcm.1 estimate quantities _ R to 20
Dctclo bid tab
Devclo on inwr's estimate - %
Subtotal Hours 3 W IS 30
3.3 A cncv Rccicns/Suhmjttal.
50%0, _ _ 1
95%CK—,R..i..,
Watershed di,o 1 g %
Department of Health
Hennepin Count/MnDOT 1 s 1 6 _
NPDES Permit/SWPPP
Grading and earthwork va nit
Private utilih review/matin, _ _
Fundin a e
Suhtotal Homs 1 6 1 12 i 1 14 5
41
P,ge of
Glenwood Ave Sidewalk Emersion Project
City of Golden Valley
SEH GOLDV#131160
January 19,2615
ch'in P j- G,,d,,t, P,,f Graduate P,f. Graduate Prof. G,,d,,t, &-Ad— SI—,',— So"
Senire NBilling Title Alnna ger EaInstrumentt Ad,!"Tech
. ll . tlEngineer I ,f Tuinl
rU_
Tim Wane L.k,, Kill,, T.,. Nwk A.p,,
Ernplo—Name Sioma.-I :Nike Kuno "--.1h Wambold Th aa,— R l Uld Wla i'g Jnhn Q., Signal Eng. Ander- D..i..l, Surer Intern Iflal-li
3.4 Bidding
Prepar,ad for bid I
Prepare electronic bidding documents 4
Res and to bid questions 4 4.
Prepare addenda
Attend bid opening 1 —1
Prepare tabulation of bid I
Prepare award recommendation letter I I
]Attend Council naaluig
Prepare notice to Proceed letter I i
PrinsPIP"clmcs of lans and proj-cel manual 4 4
7— JSubtotal Hoursfil 7 11 18
ITask Hours Sturman 16 84 101 6 54 1 14 40 21) _3;8
Task R;-Construction Sen-ices
4.0 Preconstruction Activities
Solana NPDES Permit
Dex clop preconstructio,meeting agenda
Attend preconstruction meeting 4
Create preconstruction ni tn, minute,—1c, 2
Review shop cli--ings 4
Create field quantitv book 2
Create application for pirl cut forms
! roecl
DcN, i2Lt Mslcitcr to,pbt,Sea k.,
2
ISubtotal Hours 1 1 7 18
4.1 Construction Administration(4 Weeks)
Project nianagennew 4 36
Weeki,construction unectin,,
Pirl application review 7
Materials les(ing coordination
Newsletter updates
Subconsultant jmoiccrcNic,
,Subtotal Him. 4 34 1 38
4*2 Co
Se:nstruction StakinL
c.t I
Stake construction[units
Stake erosion control(sill fence)
Stake removals 4 4 8
Stake grading contours 4 4
Stake sanitan sewer
Stake nater main
Stake storm sewer
Stake sub rade
Stake curb and antic,
Stake sidewalk
Slake ADA/Signal, 4 4
Subtotal Hours 16 1 16 1 3'
4.3 Construction Ob-alit) (4orcks)
full lime obsenelion 50 r,/,,.k, K 'nu 2118
Colad,,,atc construclum Maki-
C-,d.a(c tcstin, 4 4
Create pa,appl-tions 2
Subtotal Hours 8 208 216
4.4 Project Closeout
Sit,closeout akthrough 4
1),OP project lainchlist 2
PuIchlist coordination
Review O&M manuals
As built sunc%
As built structure sun cchrcasureaicnts 2
Create substantial counplesion Icticr
DeNclop final application for2LN2icnt 1 3
Dea clop closeout letter for"It—tor I I
Coordinate finaltoi—ro gaper,ork with contractor
Recommend final PaNcuent letter 1 —1
Create final assessment roll
Attend Council meeting
Complete as built dr-ings 3
lCreate acerc%closeout submittal 2
I221 L22 vlalkthrouLh and foll—up
_
,.r"_Int,o alkthrough and folio,up
Subtotal Hour,,, 16
31
Task Hones So it., 4 1 52
2311 16 16 335
1��e 2or 4
Gle-cood Ave 3idelvalk Extension Project
Qr of Gold—Vallee
SEH GOIDV#131160
January 19,2015
Client Projrrt Graduate Prof. Graduate Prot Glroduate Ptnf. Gredunte
Srl� Roid— S.—,C-1 Sunni
I
Admin Tool,
BillingTide
Tim W.— ' Nick A.Ji,
E.,plo—Na., Mike K.,,. ow—tio W..Nold Thome ..I., G,,� Si,.]E,F A.d,,,, Dian Sm Han
Task#1-Project Management
1Task Hours Summary
9 2
If
Subconsoltant
Ey tcnss
[Task Subtotal 1z2;
Task#2-Preli.i.— A,ine,rimi
ll.sLH ,,Su 4 1 13 44 2 2 15 1() 71
Rb— ..t IF—,
Ex I,....
Task Subtotal S696606
S 15,300.00
Task#3-Bid Dor-—-I s,
MA Hours Su.=rNr 16 84 111] 6 54 14 40 4 29 348
1S.b,,(,iisult.nt Fees
E.,ens,s
Task Subtotal S1,24N.81
545,200.00
Task Construction St,r,ira,
Task Hours Sam.— 4 52 2 8 230 U. 16 7 335
Subconsultanl Fees
E,,Itenses
Ta,kS.Nowl 5I657.87
533,600,00
Pr,)ir,t Suorroa—
PrLLt Hours Summary 21) 158 149 6 —
S.o� Summary62 2 16 ;5 10 234 16 16 36 774
1'-sultam Fco,s,
Es lenses
JTask Subtotal
596,81111.00
Page 4 of 4
oldef"I MEMORANDUM
C_ valley Planning Department
qp nn }�;!uyp 763-593-8095/763-593-8109(fax)
3.`,_. ........_. me rtwA 1R1 'WN�WW4
Executive Summary For Action
Golden Valley City Council Meeting
February 17, 2015
Agenda Item
3. J. Approval of Plat - Paisley Lane Woods
Prepared By
Jason Zimmerman, Planning Manager
Summary
At the August 19, 2014, City Council meeting, the Council held a public hearing on the Preliminary
Plat for the minor subdivision of Paisley Lane Woods (221 Paisley Lane). After the hearing, the
Council approved the Preliminary Plat which will allow two lots. The Final Plat has now been
presented to the City. Staff has reviewed the Final Plat and finds it consistent with the approved
Preliminary Plat and the requirements of City Code.
Attachments
• Resolution for Approval of Plat - Paisley Lane Woods (1 page)
• Final Plat of Paisley Lane Woods (1 page)
Recommended Action
Motion to adopt Resolution for Approval of Plat - Paisley Lane Woods.
Resolution 15-14 February 17, 2015
Member introduced the following resolution and moved its adoption:
RESOLUTION FOR APPROVAL OF PLAT - PAISLEY LANE WOODS
WHEREAS, the City Council for the City of Golden Valley, pursuant to due notice,
has heretofore conducted a public hearing on the proposed plat to be known as Paisley
Lane Woods covering the following described tracts of land:
Lot 2, Block 1, "Tralee"
WHEREAS, all persons present were given the opportunity to be heard;
NOW, THEREFORE, BE IT RESOLVED, by the City Council for the City of Golden
Valley, that said proposed plat be, and the same hereby is, accepted and approved, and
the proper officers of the City are hereby authorized and instructed to sign the original of
said plat and to do all other things necessary and proper in the premises.
Shepard M. Harris, Mayor
ATTEST:
Kristine A. Luedke, City Clerk
The motion for the adoption of the foregoing resolution was seconded by Member
and upon a 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, signed by the Mayor
and his signature attested by the City Clerk.
PAISLEY LANE WOODS F.T. DOC. No.
11
-
M1 KNOIX'ALL PERSONS BY THESE PRESENTS:Tbat LDK Bader,a Mitmesota co.Patsy,owna of the folloadng described prop=y timate in the Count,of Hennepin,Sum of Mi mm,m uiu
LM 2,Bleck 1,TRALLEF.
Has ceased the same m be mored and plated as PAISLEY LANE WOODS and d.beceby d dim,,m the publi f pubis use forme the nxmmt,F utility and dnisuge purposes as shown on the plat.
/ All Ln witness utereof LDK Bu decs,a Minnevsq..p.y has nuxd these pxsenb m be sipped by its{vq offices this_day of 20_ -
� / \✓Y• 55N9
n
N6
35.cc,
e
STATE OF MNNFSOTA
�0 COUNTY OF
' (3= v +y,ti The foregoing sircu.cnt tires ad—kdged befox me Ibis_day of ,20by L Kupetus,p,.Wm of IDK Builder a Minnesnq..parr nn N,Wf of..,d q Py.
^ � 4=e3 ZPo+ (Nogr\''s xipiamxj (.Nouary's prmtcd name)
I \
\\ Notan'Pubh, Courcy,M.--, My C—m—
j LOT 2
I
LOT 1 '�
I
I ■ lLOC K `\� \\ v� IGxgon�A.Prauh do hercbce rdk that this plat res prepaid by me nr under me dvea supenisinn;thntlam addy lJcensed Und Sun•<+�a in she State of Af esoq;that Chic pL tiro eosrcetxpresengtinn of the 6nmdan-suna�;tbm all mathematical data and
L^\ N LL \\m � la�el.ace b Idy delibuapW;n d.11 p.blic dl mnnumentsde Ibknn obis plat has-e heen,muill he cnuecdp set within one tear tharall\nsu hnnndanes and\ves lands as defined in Minneu�n Snmres,Secwm:Ali.Ol,Sind.1,a.of the date r.f the cudfiram ax
shown and labeled nn Chic plar,and ill public ways ax xM1rnsn and Uhekd nn Chic plat.
Dated dsic dayoi 20_-
�S O I
_ m I \\
`'• G R.Preach,Land Sun
\•; •_ •• , \ •_ v Mi.=.License No.24992 to
I
\•\ t t / I'I I ` M, ` \\\ \ STATE OF MINNESOTA
COUNTYOF HENNEPN
\\ `\ This i—mmem a ns nck—ledged before me nn this_day of 20_,by Gregory A.Prnsch.
lye I \ \\
I \
/ 00 IN I, (Noure's priatcd name)
N.—Public ,Cnu tyMim,,—, NJ,Cammoamo E\'Ptm
• n a
`--------------
-_______
___—
154.49
`I S 88'56'58"E 200.80 nv,"ze z o-
46.31
I (Y L,
\ GOLDEN VALLEY,MINNESOTA
This plat of PAISLEY LANE WOODS aas appmvcd and amp,d by the O y Cnune c f d,,Ciq of Golden\ m¢soq
'alley,Mi ,at a regWar��ting themed held dill_day of ,20_If appli.blc the morin.ammn and xemmnctdations of
the Commissioner of Tranipssrgdon and the Corny Higbv.-ay Engineer have been r I—d by the city or the pmsctihd 30 day period has elapsed xvhuutac ipt of meh amunuiq and xa+mmcndations,as pm\id.d M Muuu_sotn Sgwus,Seernm 5(IS.Oi,Sulsdi.isiun 2
I GOLDEN VALLEY,MINNESOTA
By Mayos By Gy(jerk
RESIDENT AND REAL ESTATE SERV ICES,Hetsmpm County,Minm:sma
I bcreby_d'that the,acres paynblc in and p—,can ha\•c bnm paid for land dexdbcd—hi,plat Dated the_day of 2f1_
Mark V.Chapin,H—pin 0—y A,,htor By Deputy
SCALE IN FEET DRAINAGE AND UTILITY
EASEMENTS ARE SHOWN THUS:
0 30 60 90
G i SLAI'EY DIVISION,Hennepin Qmnty,Minnesnq
1 6 Psysoant m Minneam S—Z,See.1838.565(1969)the,plat has been pp—d tbu_day of 20_
DENOTES�2/NCH BY 141NLH IP.OA PIPE AIOA'UME'.T _____--_—�
O 51r A-A'ARKEO 6YLCEN5E NUM5fR 24992. O O
UNLESS OTHfk(115f N'CTfD.
0 DCNOIT5 FOL:kD s21NGY IRON PrPE A'ONUME\"T BEING/O FEET IN WIDTH AND ADJOINING RIGHT OF Chti.,F.M"is.Hennepin r,.m S—ye Be
-4 E55 0'H:RW15F NO LED WAY LINE5 AND 6 FEE`W WIDTH AND ADJOINING
FOR THE PURPOSES OF THIS PLAT THE WEST LINE OF LOT
PIAT DEI:OTES R[LORD PLAT Of RALLfELOT LINES,UNLE55 OTHERVT
✓ISE SHOWN. 2,BLOCK 1, RALLEE'IS ASSUMED TO BEAR SOUTH
' '
RFGISTRAR OFTITLFS,Hennepin.County,M,.-
1 hueby cerdf,that the within plat of PAISIFY'LANE\VOODS was tdtd u+chis otTue thb dap o 20_,a�dd-h_M.
The Gregory Group,Inc.d.b.a. Merin McComsick.RefisnerofTiB By D pen
LOT SURVEYS COMPANY
LAND SURVEYORS
f'.1sv vry\pais ey lace—,J=-henoep nV INA!PLAT E3509.drvg
city of
*.
. .., ..
^ R AND ..
valley Planning Department
763-593-8095/763-593-8109(fax)
Executive Summary For Action
Golden Valley City Council Meeting
February 17, 2015
Agenda Item
3. K. Authorization to Submit Community Development Block Grant (CDBG) Application for Pesch
Place Rehabilitation Project - 2000 Mary Hills Drive
Prepared By
Jason Zimmerman, Planning Manager
Summary
The City participates in the CDBG program through the Hennepin County Consolidated Pool. The
Council annually approves a Joint Cooperation Agreement with Hennepin County to participate in
the Consolidated Pool. This Agreement allows Golden Valley and other cities within Hennepin
County that do not meet the criteria to have their own CDBG program to apply for CDBG funding.
This year, the City has been asked by Accessible Space, Inc., (ASI) to submit an application for
funding on their behalf. ASI has asked for $100,000 of CDBG funding in order to complete the
rehabilitation of Pesch Place located at 2000 Mary Hills Drive.
This house was built by the Courage Center in 1980 and acquired by ASI in 1993. Pesch Place
provides five shared units for adults with disabilities. In 2012, they received $78,105 in CDBG
funding to help pay for the replacements of a retaining wall, an upper level kitchen, and a wrap-
around deck. This final phase of work will renovate three bathrooms, replace floor materials in
residents' rooms and in the common area, and complete the replacement of the retaining wall.
At Pesch Place, all residents have an income below 50% of the median area income. This
rehabilitation fits into the Consolidated Pool plan by providing affordable housing to very low
income individuals with disabilities.
Attachments
• Location Map (1 page)
• Project Overview (1 page)
• Resolution Approving Proposed Application for 2015 Urban Hennepin County Community
Development Block Grant (CDBG) Program Funds and Authorizing Execution of Subrecipient
Agreement with Urban Hennepin County and Any Third Party Agreements (1 page)
Recommended Action
Motion to adopt Resolution Approving Proposed Application for 2015 Urban Hennepin County
Community Development Block Grant (CDBG) Program Funds and Authorizing Execution of
Subrecipient Agreement with Urban Hennepin County and Any Third Party Agreements.
2201 2200 2121 2130 4035 _ 5 ! 2201\ . / `'\ 3850 _F2
185
f y /
4020 !/ 2212 3840
�
Pyrnct l-r- 2111 2110 4025 F i� 2200
10 �-3830 2145
231 4221 2141 2105 2 2104 4015 40 r21-500 3831 1 _.
Q ar38
-'
4224 2101 2100 4005 � 2130~ ~3821 3700
4210 y \ j)rr 4001 (�
240 _ 1\\\L 2100
4200 4120 4110 4100 ., �.
Subiect Property
D 2080
---� \3801
��. 4000 2040 3900 y \ s
w �.
S
2000 f'�
.. a
4225
Y
3915
u � 4
m
Y
G
Sweeney Lake lsos 18 0
`\. 178 5
Scope of Work
Pesch Place
2000 Mary Hills Drive Golden Valley
1) Complete renovation of all three bathrooms, including tear-out/removal and replacement of all
flooring and shower tile, vanities, fixtures and roll-in showers (see detail re: showers below).
Estimated cost to complete: $15,000
2) Replace two existing accessible/roll-in tiled showers with ASI's preferred, customized fiberglass roll-in
shower manufactured by Best Bath Systems. If this system is not feasible due to installation barriers,
we will replace with ceramic or similar tile floor and ceramic/similar the shower surrounds.
Estimated cost to complete: $20,000
Estimated time to complete bathrooms (1-2): Approximately 3 to 4 months due to our need to
provide one accessible bathroom with a roll-in shower for resident use during the renovations. There
are two accessible bathrooms with roll-in showers (one on each of the two levels), and one accessible
bathroom without a roll-in shower.
3) Complete removal and replacement of all existing common area and residential unit floor coverings
with wheelchair accessible, slip resistant durable vinyl plank flooring and/or durable sheet vinyl.
Estimated cost to complete: $20,000
Estimated time to complete floor coverings: Approximately one month.
4) Complete grading, in-fill and construction of a lower level retaining wall on the northwest side of the
property. This work will correct chronic runoff and erosion of the existing area and preserve existing
and future plantings to be completed and paid for by the property.
Estimated cost to complete: $20,000
Estimated time to complete:Approximately one month.
5) Complete the construction of a wheelchair accessible, paved bituminous or concrete pathway from the
main entrance/upper level of the property connecting to the lower level of the property. This project
will ensure compliance with Equal Access/Section 504 requirements, as well as provide wheelchair
access to Courage Center and City bus stop on the north side of Golden Valley Road.
Estimated cost to complete: $25,000
Estimated time to complete: Approximately one month.
Total estimated cost of all proposed CDBG funded improvements: $100,000
Resolution 15-15 February 17, 2015
Member introduced the following resolution and moved its adoption:
RESOLUTION APPROVING PROPOSED APPLICATION FOR 2015 URBAN HENNEPIN
COUNTY COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) PROGRAM FUNDS
AND AUTHORIZING EXECUTION OF SUBRECIPIENT AGREEMNT WITH URBAN
HENNEPIN COUNTY AND ANY THIRD PARTY AGREEMENTS
WHEREAS, the City Council of the City of Golden Valley, through execution of a
Joint Cooperation Agreement with Hennepin County, is cooperating in the Urban Hennepin
County Community Development Block Grant Program; and
WHEREAS, the City of Golden Valley has developed a proposal for the use of 2015
Urban Hennepin County Community Development Block Grant funds;
BE IT RESOLVED, by the City Council for the City of Golden Valley approves the
following project for funding from the 2015 Urban Hennepin County Community
Development Block Grant Program and authorizes submittal of the proposal to Urban
Hennepin County/Consolidated Pool.
Activity Budget
Pesch Place Rehabilitation Project $100,000
BE IT FURTHER RESOLVED, that the City Council hereby authorizes and directs
the Mayor and the City Manager to execute the Subrecipient Agreement and any required
Third Party Agreement on behalf of the City to implement the 2015 Community
Development Block Grant Program.
BE IT FURTHER RESOLVED, that should the final amount of FY2015 CDBG
available to the City be different from the preliminary amount provided to the City, the City
Council hereby authorizes the City Manager to adjust project budget(s) to reflect an
increase of decrease in funding.
Shepard M. Harris, Mayor
ATTEST:
Kristine A. Luedke, City Clerk
The motion for the adoption of the foregoing resolution was seconded by Member
and upon a 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, signed by the Mayor
and his signature attested by the City Clerk.
city Oy
gotaentl.tl,40"' ry .aAdministrative Services Department
763-593-8013/763-593-3969(fax)
Executive Summary For Action
Golden Valley City Council Meeting
February 17, 2015
Agenda Item
3. L. Resolution Approving Golden Valley Fire Relief Association By-Law Changes
Prepared By
Sue Virnig, Finance Director
John Crelly, Fire Chief
Summary
The Golden Valley Fire Relief Association (GVFRA) would like the Council to consider changes to
their by-laws. Because this may impact future levies, the Council needs to approve these requests
at a future Council meeting. GVFRA Board Members Chris Gemlo and Bryan Magnuson will be in
attendance to review these changes.
By-law changes are the following:
Yearly Pension increase from $7300 to $7500
Deferred Interest Payment Method change to calendar year following separation
Interest on the Deferred Retirement Benefit to would be set to 0 percent.
Disability Amount defined for active and deferred members.
Attachments
• Article XI - Retirement Benefit (1 page)
• Article XI - Deferred Interest Payment Method; Disability Amount (2 pages)
• Article XI - Service Pension Interest on Deferred (1 page)
• Resolution Approving Golden Valley Fire Department Relief Association By-Law Changes (1
page)
Recommended Action
Motion to Adopt Resolution Approving Golden Valley Fire Relief Association By-Law Article XI
Increasing Service Pension, Section II-Disability Amount, Section I-Deferred Interest Payment and
Service Pension Interest.
Be it resolved by the Board of Trustees of the Golden Valley Fire Department Relief
Association, that at a meeting duly called and legally held at the Golden Valley Fire
Department Station 1 Training Room, in the City of Golden Valley, on the-`h day of
201 , that the attached by-law revisions are submitted to the membership
for approval, effective th9201 ._
ARTICLE XI.
RETIREMENT BENEFIT
Section I: Service Pension-An active member of the Association who leaves active duty with the Fire
Department is eligible to collect a lump sum service pension subject to the following:
a. Eligibility requirements:
1. Have left active service with the Golden Valley Fire Department;
2. Have completed at least 10 years of active service with the Fire Department before
leaving; and
3. Have been a member of the Association in good standing at least 10 years prior to
leaving the Fire Department.
b. Amount of Benefit- Each applicant shall be eligible for a service pension of$7,3500.00
per full year of active service as a firefighter with the fire department.
c. Early Vesting Provision- In the event a member with ten years or more, but less than
twenty years of active service on the City of Golden Valley Fire Department resigns, that
person shall be entitled to the following benefits that represent the early vested portion of
their total pension amount, reduced by four(4) percent per year for each year less than 20.
The following table shall be used to determine the pension amount, less any accrued
interest:
Completed Years of Service Early Vesting Reduction Pension Amount
10 40 percent $ X15.000
11 36 percent $ 51-+9252,800
12 32 percent $ �9.556961.200
13 28 percent $ 69;370,200
14 24 percent $ 77,67279,800
15 20 percent $ 87,60)90.000
16 16 percent $ 92100,800
17 12 percent $ i 09.209112.200
18 8 percent $ 120;889124,200
19 4 percent $ 133136.800
20 none $ (Ell 50.000
More than 20 none add $ 7,444.500 per year
1
Be it resolved by the Board of Trustees of the Golden Valley Fire Department Relief
Association, that at a meeting duly called and legally held at the Golden Valley Fire
Department Station 1 Training Room, in the City of Golden Valley, on the day of
, 201_, that the attached by-law revisions are submitted to the
membership for approval, effective the day of , 201_.
ARTICLE XI.
RETIREMENT BENEFIT
Section I: j. Deferred Interest Payment jllethod— Interest on a deferred service pension is creditable
beginning; on the first date of the calendar year next following the date on which the member
separated from active Fire Department service and active Association membership and
ending on the last date of the calendar year immediately before the year in which the deferred
member commences receipt of the deferred service pension. Members must be deferred for
an entire calendar year to receive interest for that year.
ARTICLE XII.
ANCILLARY BENEFITS
Section H: f. Disability Amount - Permanent disability benefits may be paid to permanently disabled
members of the Association out of the Special Fund following the submission and approval
of an Application for Distribution.
1~. For active members, a pennanent disability benefit equal to the benefit level for each year
that the member served as an active firefighter in the Fire Department, without regard to
minimum or partial vesting requirements, will be paid if, upon the date of permanent
disability, the member has notyey t separated from active service. The years of service must
be determined as of the date of disability. The member is eligible to receive the disabilit
benefit immediately upon approval by the Board.
h, For deferred members, a pennanent disability benefit equal to a disabled defeiTed member's
deferred service pension will be paid to the disabled deferred member. The permanent
disability benefit amount may not exceed the total earned service pension of the disabled
member.
i. For active and deferred members. temporary disability benefits are not provided by this
Association,
Arnowit of the disability shall depetid en the cause of the disability. if the disability is
dir-eetly fela4ed to daties peffefmed while on &4), as a paid, en eali Firefightter.- 1140414 C*
of Golden Valley of while peffeffiiiiig duties felated to afi apffeved asseeiation aetk,it�-�
disability amatmt shall he aii amount equal to his/bef"I yeaFs of sen4ee f:ntiltipfied by-t4ie
while afi diity as a paid, ofl eall Fifefightef with the City of Goidefl Vailey OF WhOO
Pension rate as speeified in Aftiele X! of these by laws. fedueed by 49tif(4)pefeent
1
per- yeaf 4;9F eaeli yeaF less thaH 20. "Hie mifiinitim affloutit payable shail be two (2) times the
The Aaliewilig, table shall be lised to deieFf:nifle tile Final disability Pension aj:nouflt�
Completed FaFIN, Vemiflm Reduction
5 Of Fess-- 60 peieeiit
€j 56 pefeent-
8 48-pefeent—
s� 44-pefeefrt—
4A --40 pe-feat
36 pefeent---
'2 32pef:eetit
1 28 peFeent-
14 24 peFeent—
i : 20 pefee„r
16— —16 pefeent
P 12 Pefeel_
!8 8 Pef ent
20 Of fiiefe flOne
2
Be it resolved by the Board of Trustees of the Golden Valley Fire Department
Relief Association, that at a meeting duly called and legally held at the Golden
Valley Fire Department Station 1 Training Room, in the City of Golden
Valley, on the wth day of , 201_, that the attached by-law revisions
are submitted to the membership for approval, effective th, 201_.
ARTICLE XI.
RETIREMENT BENEFIT
Section I: Service Pension - An active member of the Association who leaves active duty with
the Fire Department is eligible to collect a lump sum service pension subject to the
following:
a--Interest on the Deferred Retirement Benefit —No interest will be paid during
the period of deferral on a deferred lump-sum service pension. Wei-est ,"hall
.
0
.. Stat. ,
Stat § 69.7724..d Z pafagfaph (e) el r:i 69.773.
(1 '7^73 F d i d if tl
felief asseeiatieH tindef Minn, Stat. § 69.772 of 69,774, As of the date oPhis
been set by the beafdl 2006 - 0 2007
amendment, C .�c�� T-I.-,� >
-- 5�,;, 20ltirS=v��B,200S�--00%. 2010z -5-%, Y�tf-t--t--00*b 201 2-5.1,4 The
356.2P, is 0
.. bylaws,
50 , thef at4e
Resolution 15-16 February 17, 2015
Member introduced the following resolution and moved its adoption:
RESOLUTION APPROVING GOLDEN VALLEY FIRE DEPARTMENT RELIEF
ASSOCIATION BY-LAW ARTICLE XI INCREASING SERVICE PENSION, SECTION ll-
DISABILITY AMOUNT; SECTION I-DEFERRED INTEREST PAYMENT AND SERVICE
PENSION INTEREST
WHEREAS, the Golden Valley Fire Department Relief Association has by-laws
governing their process for active duty; and
WHEREAS, an active member of the Golden Valley Fire Department Relief
Association is eligible to collect a lump sum service pension subject to Article XI of the by-
laws; and
WHEREAS, the City of Golden Valley may be required to approve a relief
association's pension benefit level, and also may be required to make contributions to fund
relief association pension benefits; and
WHEREAS, the Article XI relates to a section of the by-laws; and
WHEREAS, the Annual Service Pension amount approved is attached;
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Golden
Valley, Minnesota, as follows:
Approve the Annual Service Pension in Article XI to $7,500.
Interest on the Deferred Retirement Benefit will not be paid.
Deferred Interest Payment period is defined.
Disability Amount for active and deferred is defined.
Shepard M. Harris, Mayor
ATTEST:
Kristine A. Luedke, City Clerk
The motion for the adoption of the foregoing resolution was seconded by Member
and upon a vote being taken thereon, the following voted in favor thereof:
and the following voted against the same.-
whereupon
ame:whereupon said resolution was declared duly passed and adopted, signed by the Mayor
and his signature attested by the City Clerk.
City0f
MEMORANDUM
'valley Administrative Services Department
763-593-8013/763-593-3969(fax)
Executive Summary For Action
Golden Valley City Council Meeting
February 17, 2015
Agenda Item
3. M. Call for Three Public Hearings - Special Assessments for 2015, 2016 and 2017 Pavement
Management Program
Prepared By
Sue Virnig, Finance Director
Summary
At this meeting, the Council should call for three public hearings for March 17, 2015, at 7 pm to
consider certifying the following special assessments:
First Public Hearing
2015 Pavement Management Program - Includes various improvements for streets in the
following locations:
• Gettysburg Avenue North from Plymouth Avenue North to Olympia Street
• Flag Avenue North from Cul-de-sac to Olympia Street
• Olympia Street from Gettysburg Avenue North to Flag Avenue North
• Winsdale Street from Hillsboro Avenue North to Gettysburg Avenue North
• Flag Avenue North from Olympia Street to Naper Street
Second Public Hearing
2016 Pavement Management Program - Includes various improvements for streets in the
following locations:
• Independence Avenue North from Cul-de-sac to Olympia Street
• Hillsboro Avenue North from Plymouth Avenue North to Winsdale Street
• Winsdale Street from Mendelssohn Avenue North to Hillsboro Avenue North
Third Public Hearing
2017 Pavement Management Program - Includes various improvements for streets in the
following locations:
• Independence Avenue North from Olympia Street to Earl Street
• Hillsboro Ave North from Olympia Street to Naper Street
• Gettysburg Avenue from Olympia Street to Naper Street
• Wheeler Boulevard from Cul-de-sac to Earl Street
• Naper Street from Mendelssohn Avenue North to Flag Avenue North
• Olympia Street from Mendelssohn Avenue to Gettysburg Avenue North
A legal notice will be published February 26 and March 5, 2015. On February 26, 2015, all
property owners will be mailed a hearing notice of the assessment, resolution that will be
considered, sample payment schedule and commonly asked questions.
Attachments
• Location Map for 2015 -2016-2017 Pavement Management Area (1 page)
Recommended Action
Motion to call for three public hearings for special assessments on the 2015 Pavement
Management Area, 2016 Pavement Management Area and 2017 Pavement Management Area on
March 17, 2015, at 7 pm.
Earl St
i Q Golden Ridge
Vic e
0'.4* Nature Area
6 >
0
E
2017 PMP
16 cj
Nap St
General Milk
Nature
10
Olympia st ,w, "-
Lakeview
Park
2016 PMP
2015 PMP
pop"
Plymouth A N
20159 20169 & Print Date:812712014
Sources:
-Hennepin County Surveyors Office for
Property Lines(2014)&Aerial Photography(2012).
_T -City of Golden Valley for all other layers,
2017 PMP 0 150 300 600
Feet
C1 V 1
4
valley
City Administration/Council
763-593-3989/763-593-8109(fax)
Executive Summary For Action
Golden Valley City Council Meeting
February 17, 2015
Agenda Item
3. N. Resolution Modifying 2015 General Wages and Salary to Include Accounting Technician and
Lead Community Service Officer (CSO) Positions
Prepared By
Chantell Knauss, Assistant City Manager
Summary
With the recent retirement of a long-tenured employee, some of the duties between the three
full-time General Services positions (Accounts Receivable/Election Assistant,
Assessment/Accounts Payable Technician, and Utility Billing/Accounts Payable Technician) were
adjusted. Based on the adjustment of duties, the Accounts Receivable/Election Assistant position
is recommended to be an Accounting Technician position. The wage schedule for the position
would remain the same as the Accounts Receivable/Election Assistant.
When staff submitted the 2015 General Wages and Salary resolution for Council approval, the
position of Lead CSO was inadvertently not included. The City has six full-time CSOs. The Lead
CSO is one of the six employees. This position was included in the 2015 Budget.
Attachments
• Resolution Modifying 2015 General Wages and Salary to include Accounting Technician and
Lead CSO positions (1 page)
Recommended Action
Motion to adopt Resolution Modifying 2015 General Wages and Salary to include Accounting
Technician and Lead Community Service Officer positions.
Resolution 15-17 February 17, 2015
Member introduced the following resolution and moved its adoption:
RESOLUTION MODIFYING 2015 GENERAL WAGES AND SALARY
FOR ACCOUNTING TECHNICIAN AND
LEAD COMMUNITY SERVICE OFFICER POSITIONS
BE IT RESOLVED, by the City Council of the City of Golden Valley that it hereby
adopts the following amendment to Resolution 14-98, modifying the general wages and salary
schedule for the new personnel named herein effective February 9, 2015:
NON-EXEMPT Step 1 Step 2 Step 3 Step 4 Step 5
Accounting Technician $21.91 $22.95 $23.99 $25.04 $26.08
Lead Community Service Officer $18.52 $19.40
Shepard M. Harris, Mayor
ATTEST:
Kristine A. Luedke, City Clerk
The motion for the adoption of the foregoing resolution was seconded by Member
and upon a vote being taken thereon, the following voted in favor thereof.-
and
hereof:and the following voted against the same.-
whereupon
ame:whereupon said resolution was declared duly passed and adopted, signed by the Mayor and
his signature attested by the City Clerk.
city 00 m �
4 it
golden
MEMORANDUM
l Finance Department
Vd. p t
763-593-8013/763-593-8109(fax)
Executive Summary For Action
Golden Valley City Council Meeting
February 17, 2015
Agenda Item
3. 0. Approval of Requests for Beer and/or Wine at Brookview Park
Prepared By
Kris Luedke, City Clerk
Summary
As per City Code Section 10.83, Subd. 2 I. "No person shall possess, display, consume or use
alcoholic beverages on any City park property, unless permission is granted by the Council." As
part of the application process for a Facilities Use Permit to use the large and small picnic shelters
at Brookview Park the applicant has the option to pay an additional $25 to be able to serve beer
and/or wine. Attached is a list of the individuals and/or organizations who have requested that
option.
Attachments
• Beer and/or wine request list (1 page)
Recommended Action
Motion to approve the requests for beer and/or wine at Brookview Park as recommended by
staff.
BEER AND/OR WINE REQUEST LIST
INDIVIDUAL OR ORGANIZATION CC DATE
DATE TIME SHELTER APPROVED
Tawakalitu Badmus 05-23 11 am - 4 pm Large 02-17-15
Tawakalitu Badmus 05-23 5 pm - 10 pm Large 02-17-15
ULLR Ski Club - Nancy Kastner 06-10 5 pm - 10 pm Large 02-17-15
Ruth Ponsonby 06-14 5 pm - 10 pm Large 02-17-15
ULLR Ski Club - Nancy Kastner 06-24 5 pm - 10 pm Large 02-17-15
Douglas George 06-27 11 am - 4 pm Large 02-17-15
ULLR Ski Club - Nancy Kastner 07-08 5 pm - 10 pm Large 02-17-15
Sarah Rosenberg 07-11 11 am - 4 pm Large 02-17-15
Janet Frisch 07-12 11 am - 4 pm Large 02-17-15
Dexter Bingham 07-18 5 pm - 10 pm Large 02-17-15
ULLR Ski Club - Nancy Kastner 07-22 5 pm - 10 pm Large 02-17-15
Elizabeth Bartlett 07-24 5 pm - 10 pm Small 02-17-15
Dale Olson 07-25 11 am - 4 pm Large 02-17-15
Elizabeth Barlett 07-26 11 am - 4 pm Small 02-17-15
ULLR Ski Club - Nancy Kastner 08-05 5 pm - 10 pm Large 02-17-15
Wes McFarland 08-07 5 pm - 10 pm Large 02-17-15
Lynn Schneider 08-15 5 pm - 10 pm Large 02-17-15
Madia Dade 08-16 5 pm - 10 pm Large 02-17-15
ULLR Ski Club - Nancy Kastner 08-19 5 pm - 10 pm Large 02-17-15
Robert Cooper 08-22 11 am - 4 pm Large 02-17-15
Robert Cooper 08-22 5 pm - 10 pm Large 02-17-15
ULLR Ski Club - Nancy Kastner 09-02 5 pm - 10 pm Large 02-17-15
ami tgolde" n M E er
M 0 R r ,
valley Planning Department
763-593-8095/763-593-8109(fax)
Executive Summary For Action
Golden Valley City Council Meeting
February 17, 2015
"60 Days" Deadline: February 20, 2015
Agenda Item
4. A. Public Hearing- Ordinance#542 - Removing Special Restrictions - 6000 Duluth Street- King of
Grace Lutheran Church and School, Applicant
Prepared By
Jason Zimmerman, Planning Manager
Summary
The Applicant, King of Grace Lutheran Church and School, is proposing to modify the zoning of
the property at 6000 Duluth Street to the standard "Institutional (1-1) Zoning District" in order to
remove a restrictive condition on the north setback area of the property. The property is
currently zoned "Institutional (1-1)," but has a restrictive condition that requires a 120-foot front
yard setback along Kenneth Way. The standard front yard setback area for the Institutional (1-1)
Zoning District is 35 feet.
The restrictive condition was placed on the property on August 5, 1969. At that time, King of
Grace rezoned four residential lots along Kenneth Way to allow for expansion to its campus. The
Village Council placed the setback restriction on the property in response to resident concerns.
King of Grace petitioned for the same rezoning in 2013, but withdrew their request prior to a
hearing in front of the Council. At that time, they wished to create a playground within the
restricted area. They were also considering expanding a parking lot along Brunswick Avenue.
To accomplish these long-range plans, the City Attorney has advised that the Ordinance that was
adopted on August 5, 1969, would need to be rescinded so that the special setback restriction
along the north side of the property would be removed, leaving only the underlying Institutional
(1-1) zoning in place. If these restrictions were to be removed, the property would still need to
meet all of the requirements of the Institutional (1-1) Zoning District.
The Planning Commission voted unanimously (7-0) to recommend approval of this request at
their meeting on January 26, 2015.
In addition to the restriction contained within the Ordinance, a private covenant exists that also
limits development on the property. The Applicant is working separately to remove this
covenant.
Attachment
• Location Map (1 page)
• Memo to the Planning Commission dated January 26, 2015 (2 pages)
• Planning Commission Minutes dated January 26, 2015 (6 pages)
• Planning Commission Minutes dated September 9, 2013, 2013 (6 pages)
• Ordinance No. 328 dated August 5, 1969 (1 page)
• Declaration of Protective Covenants (4 pages)
• City Code Section 11.46: Institutional Zoning District (6 pages)
• Official Zoning Map (1 page)
• Ordinance No. 542, Rescinding Ordinance No. 328 (1 page)
Recommended Actions
Motion to adopt Ordinance No. 542, Rescinding Ordinance No. 328.
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MEMORANDUM
valli.,y Planning Department D e ar ment
- -
763 593 8095/763-593-8109(fax)
Date: January 26, 2015
To: Golden Valley Planning Commission
From: Jason Zimmerman, Planning Manager
Subject: Informal Public Hearing
Rezoning Petition
6000 Duluth Street
King of Grace Lutheran Church and School, Applicant
Background and Proposed Use
The Applicant, King of Grace Lutheran Church and School, is proposing to rezone the property at
6000 Duluth Street to the standard "Institutional (1-1) Zoning District" in order to remove a
restrictive condition on the north setback area of the property. The property is currently zoned
"Institutional (1-1)," but has a restrictive condition that requires a 120-foot front yard setback along
Kenneth Way. The standard front yard setback area for the Institutional (1-1) Zoning District is 35
feet.
The restrictive condition was placed on the property on August 5, 1969. At that time, King of Grace
rezoned four residential lots along Kenneth Way to allow for expansion to its campus. The Village
Council placed the setback restriction on the property in response to resident concerns.
King of Grace petitioned for the same rezoning in 2013 but withdrew their request prior to a
hearing in front of the City Council. At that time they wished to create a playground within the
restricted area. They were also considering expanding a parking lot along Brunswick Avenue.
To accomplish these long-range plans, the Ordinance that was adopted on August 5, 1969, would
need to be replaced with a new zoning Ordinance that doesn't contain the setback restriction along
the north side of the property. The City Attorney has advised that in order to accomplish this, the
property must be formally rezoned. If the property is rezoned, it would still need to meet all of the
requirements of the Institutional (1-1) Zoning District.
In addition to the restriction contained within the Ordinance, a private covenant exists that also
limits development on the property. The Applicant is working separately to remove this
covenant.
Recommendation
Staff recommends approval of the Rezoning Petition, rezoning 6000 Duluth Street from
"Institutional (1-1)" with a restrictive northern setback to "Institutional (1-1)" with no special
restrictions in order to accommodate future site improvements.
Attachments
Location Map (1 page)
Ordinance No. 328 dated August 5, 1969 (1 page)
Declaration of Protective Covenants (4 pages)
Institutional Zoning District Section of City Code (6 pages)
Official Zoning Map (1 page)
Regular Meeting of the
Golden Valley Planning Commission
January 26, 2015
A regular meeting of the Planning Com ission was held at the Golden Valley City Hall,
uncil Chambers, 7800 Golden Valley oad, Golden Valley, Minnesota, on Monday,
Ja ry 26, 2015. Vice Chair Cera calle the meeting to order at 7 pm.
Those p ent were Planning Commiss' ners Baker, Blum, Cera, Johns , egelbaum,
and Waldh er. Also present was Pla ;ning Manager Jason Zimmer., n, and
Administrative sistant Lisa Wittman. hair Kluchka was absent
1. Approval of utes
d
December 22, 2014, ular PI nning Com on Meeting
Baker referred to the last paragraph age. ... and said the word "this" should be
changed to the word "thinks."
Waldhauser referred to the sixth pa , ph onage 5 and said the word "conscience"
should be changed to the word " nsci us."
Waldhauser referred to the urel Pon s PUD public h' ring. She said that the
discussion regarding fen 's was to pr lude them along property lines, but to allow
them around patios. ever, the con ition in the recomme ation said fences are
prohibited. Zimmer 'n clarified that fe ces would be prohibite , ut that privacy
screening aroun Zimmer,,,,
would be per itted.
MOVED by aker, seconded by John n and motion carried unanimous to approve the
Decembe 2, 2014, minutes with the bove noted corrections.
January 12, 2015, Joint City C ncil and Planning Commission Meeting
VED by Waldhauser, seconded b Blum and motion carried unanimously to approve
e January 12, 2015, minutes as su itted.
2. Informal Public Hearing — Property Rezoning — 6000 Duluth Street— King of
Grace Lutheran Church and School -Z011-15
Applicant: King of Grace Lutheran Church and School
Addresses: 6000 Duluth Street
Purpose: To rezone the property from 1-1 Institutional with a setback restriction
to 1-1 Institutional without restrictions.
Minutes of the Golden Valley Planning Commission
January 26, 2015
Page 2
Zimmerman reminded the Commission that this same request was heard in 2013. At that
time the Applicant withdrew their application before they went before the City Council.
Zimmerman discussed the current zoning of the property and explained the Applicant's
request to rezone their property in order to remove a setback restriction that requires a
120 foot setback along Kenneth Way. He stated that this area was previously zoned Single
Family residential, but was rezoned to Institutional in 1969. He explained that during the
rezoning process a protective covenant with the surrounding neighbors was also
established enforcing the 120 foot setback restriction. He stated that the covenant was
effective through 1999 with a clause for an automatic 30 year extension unless a majority
of neighbors agreed to remove it. He added the covenant is a separate issue from the
zoning restriction and that the City Attorney has advised they be dealt with independently.
He stated that staff is recommending approval of the Applicant's request to rezone the
property without restriction.
Cera noted that in 1969 the City approved the rezoning by adopting an ordinance. He
asked about today's rezoning process. Zimmerman stated that rezonings are approved by
ordinance and that the Official Zoning Map is also amended. Cera asked if the original
ordinance would need to be rescinded. Zimmerman said the City Council would rescind the
original ordinance.
Segelbaum said he doesn't recall seeing additional setback restrictions placed on
properties in the past, and that people usually just enter into private covenant agreements.
He asked Zimmerman if he has seen other situations similar to this one. Zimmerman said
there are a couple of cases where restrictions were put in place at the time of rezoning, but
not many.
Segelbaum clarified that the Planning Commission's focus should be on the rezoning
request and that the covenant is outside of their domain and is up to the parties in the
covenant to change it. Zimmerman agreed.
Baker asked how the status of the covenant would affect the rezoning. Zimmerman stated
that nothing can happen in the 120 foot setback area unless both restrictions are removed.
He added that if the zoning restriction is removed and the covenant is determined to be
invalid, then the property would have the typical 35 foot front yard setback area.
Blum asked if there are many similar institutions in Golden Valley that have the older type
of zoning. Zimmerman said no and explained that the unusual thing in this case is that it
was residential property that was rezoned to Institutional which concerned neighbors who
thought there would be houses built there, not an Institutional use. Blum asked if it is
correct to say that the rest of the Institutional uses in Golden Valley are zoned without the
restrictions this one has. Zimmerman said yes.
Erwin Ekhoff, Administrative Pastor, King of Grace Church, said they are seeking to rezone
their property to the 1-1 Institutional Zoning District with no special restrictions. He said their
request is to make full use of their property in keeping with present codes just as all other
property owners under this zoning category. He stated that he met with City staff to discuss
Minutes of the Golden Valley Planning Commission
January 26, 2015
Page 3
the covenant as well as MN statute 500.20 which speaks to private covenants more than
30 years old and concludes that they may be disregarded. He referred to a site plan of their
property and explained that they would like to move their existing playground from the east
side of their property, which is in a traffic area, to the north side of the property so it is
safer.
Cera asked Ekhoff if discussions have occurred with the other covenant
members/neighbors. Ekhoff said no because the opportunity hasn't been right yet.
Segelbaum asked Ekhoff if he has heard comments from any of the neighbors. Ekhoff said
no.
Waldhauser asked about the landscaping plans along the north side of the property. Ekhoff
said they've planted between 20 and 27 trees on the north side of their property.
Johnson asked how the north area of the property is currently used. Ekhoff said it is used
as an open playfield area.
Cera asked Ekhoff if they are willing to add more screening along the north side of the
property. Ekhoff said they would work with the City regarding landscaping and screening.
Segelbaum asked Ekhoff if they have plans for any future building expansions. Ekhoff said
right now the plan is to move the playground. He said he doesn't foresee any construction
on the north part of their property.
Waldhauser asked Ekhoff if they have plans to expand their parking area. Ekhoff said no.
Baker asked Ekhoff about their membership projections. Ekhoff said their membership is
holding and not declining.
Carol Lansing, Attorney with Faegre Baker Daniels, 90 South 7th Street, Minneapolis,
reiterated that the covenant is a private legal matter to be handled outside of the zoning
decision. She stated that the City has determined that a 35 foot front yard setback is
appropriate in the 1-1 Zoning District citywide, therefore they are requesting removal of the
very old restriction so that they can be with the modern times and be treated the same as
other Institutional properties in the City. She said that from a legal standpoint there is no
basis to put conditions on rezonings like was done in 1969. She added that state statute
says that all zoning regulations within a zoning district are to be uniform and applied
uniformly or you will run into constitutional problems.
Segelbaum stated that a deal was struck with the neighborhood back in 1969 with the
covenant and the rezoning and questioned the basis for going back on that deal and why it
wouldn't be binding. Lansing said that with respect to the covenant the 30 year duration
restriction was in place and all parties should have been aware that was the law they were
working with and by putting in an automatic extension they couldn't get around the statute.
She read a portion of case law regarding the purpose of the statute and the practical
limitations. She said 45 years ago times were different, the state has a statute in order to
not unduly hamper a city's ability to guide land use through future times and that the statute
Minutes of the Golden Valley Planning Commission
January 26, 2015
Page 4
that limited the duration to 30 years was in place then, so really the parties entered an
agreement that couldn't be enforced for more than 30 years. Segelbaum asked Lansing if
she is saying that the condition put on the rezoning done in 1969 is invalid. Lansing said
she thinks it is invalid and that if the City refuses to remove it, it would be the same as
imposing it, and would be treating this 1-1 property differently than others. Segelbaum said
it would not be considered a taking if it was already taken 30 years ago.
Cera opened the public hearing.
Jay Dworsky, 5930 Kenneth Way, asked how things are different today than when the
covenant was made in 1969, and how the covenant can be separate from the rezoning.
Joel Hendrickson, representing Joel and Lois Hendrickson, 6000 Kenneth Way, said he
knows the City has put a moratorium on dividing property and he appreciates the foresight
of the City stepping back from making actions that affect the future. He said the covenant
regarding this property wasn't imposed by the City, it was an agreement with the property
owners and the owner of the church at the time to give some assurance to the neighbors
that the property would remain residential by nature. He said there has been very little
communication with the neighbors by the church. He stated that the City has a jewel in the
rough with the green space in the covenant area that would be protected until 2029. He
said there have only been two covenants like this, both were with churches, and this is the
only remaining covenant in Golden Valley. He asked that the City consider what legal
covenants are versus restrictive conditions. He stated that if the land were rezoned it would
really be supporting a possible daycare or a senior high rise and proposals would have to
be considered according to the new zoning. He said the City also needs to consider how
much activity the neighborhood can support, the size of the structures and existing paved
areas, and where the rain water filters before it goes into Bassett Creek. He said ideally the
City would honor the covenant that is in place which assured the homeowners a residential
look and feel until 2029. He said if the rezoning is granted, he implores the City to require a
performance bond for the landscaping.
Richard Ekelund, 6020 Kenneth Way, said he enjoys the green space across the street and
he is concerned about it disappearing. He said there is no reason the neighbors and the
church can't get together and discuss the issues. He said he is also concerned about his
property value going down.
Barbara Paterson, 2040 Adair Avenue North, said the church has planted approximately
seven trees and it is a completely open space that is used for the school's physical
education. She said putting the playground on the north end of the property will eliminate
the area they use for physical education which is a Board of Education requirement.
Gary Dahlgren, 6050 Kenneth Way, said he likes the idea of having good churches and
schools and has nothing against the church, but he does have concerns about what is
done across the street from his property. He said the church's plans are vague and if the
rezoning starts to impact his property, he wants to be involved and have input and
judgment in what happens.
Minutes of the Golden Valley Planning Commission
January 26, 2015
Page 5
Seeing and hearing no one else wishing to comment, Cera closed the public hearing.
Segelbaum referred to the question regarding how things are different between now and
1969 when the zoning restrictions were adopted. Zimmerman said the church could speak
to what circumstances have changed for them. He said in terms of the zoning, the City
would not add conditions, and would uniformly apply the zoning requirements.
Segelbaum asked if the Applicant was required to have a neighborhood meeting.
Zimmerman said no.
Segelbaum asked if the Applicant could add a daycare or a senior high rise. Zimmerman
said those uses would require a Conditional Use Permit.
Cera asked if there are impervious surface requirements in the 1-1 Zoning District.
Zimmerman said that disturbances over a certain amount would require City and Bassett
Creek Water Management Commission review. Segelbaum asked if there are water run-off
restrictions in place. Zimmerman reiterated that there would be review and permits required
with site disturbance.
Segelbaum asked about the idea of requiring a performance bond for landscaping.
Zimmerman said it is common to have an escrow in place, but he is not sure if the City can
force them to have an escrow if they aren't constructing anything. Waldhauser asked if
lawn space is considered landscaping. Zimmerman said the Zoning Code says the front
setback areas have to be planted and landscaped and contain no off-street parking.
Baker asked if further review would be required to relocate the playground. Zimmerman
said it depends how much area is disturbed. Baker asked if there would be an opportunity
for the Planning Commission to put conditions on landscaping or screening. Zimmerman
said the Planning Commission can recommend and encourage additional landscaping and
screening, but can't place conditions on the rezoning.
Baker said he is concerned about the lack of communication between the church and the
neighborhood. He said he would like there to be deliberate communication to resolve
differences. Segelbaum asked if a meeting with the neighbors could be made a condition.
Zimmerman said the Commission can recommend that a meeting be held with the
neighbors.
Segelbaum referred to the Applicant's attorney's statement about constitutional violations
and questioned if that really is what the law says. Zimmerman said he hasn't been involved
in the discussions with the attorneys. Waldhauser said the notion that properties zoned the
same have to be treated the same has been made very clear to them. Segelbaum said this
property is zoned differently and he would like to hear from the City Attorney and have the
Applicant meet with the neighbors in the meantime. Cera said a lot of the issues in this
case are beyond zoning and will be worked on outside of the City's review process.
Waldhauser said she agrees that it was not legal to differentiate this Institutional property
from other Institutional properties. Segelbaum said he does not want to state that what was
done in 1969 was invalid.
Minutes of the Golden Valley Planning Commission
January 26, 2015
Page 6
Johnson said every property owner is going to go by their best interests and it makes
sense to him to move the playground out of a traffic area.
Blum said it is unfortunate that the ordinance language matches the covenant language.
He said he wants it to be clear that even if the ordinance changes, the covenant still needs
to be addressed. He said it seems fair and equitable to rezone the property to allow them to
be like every other 1-1 Institutional property.
Cera summarized the recommendations the Commissioners discussed as follows: 1) A
meeting with the church and the neighbors should be held prior to City Council
consideration, 2) guidance should be received from the City Attorney regarding the
ordinance language, and 3) consideration should be given to additional buffering and
landscaping.
Waldhauser said she would like to clarify that the City Attorney's guidance should be
related to the zoning ordinance and not the covenant. Johnson said he would like the
recommendation regarding the neighborhood meeting not to be just with the parties of the
covenant since they are not supposed to consider the covenant language.
MOVED by Baker, seconded by Blum and motion carried unanimously to recommend
approval of rezoning the property at 6000 Duluth Street from 1-1 Institutional with a setback
restriction to 1-1 Institutional without restrictions with the following recommendations: 1) A
meeting with the church and the neighbors should be held prior to City Council
consideration, 2) guidance should be received from the City Attorney regarding the
ordinance language, and 3) consideration should be given to additional buffering and
landscaping.
--Short Recess--
Reports on Meetin s of the Housing and Redevelopment Authority, City
Council, Board of oning Appeals and other Meetings
Baker ve an update on he most recent Bottineau co ity meeting and stated that
there will a community open house on Janu
Baker gave an date o the neigh "ood meeting held on January 21 regarding the
subdivision mora ium.
6. Other Busine
• Co cil Li ison port
No rep was given.
Adjournmen
The meeting was ad ourned at 8:17 pm.
Regular Meeting of the
Golden Valley Planning Commission
September 9, 2013
A regular meeting of the Planning C mission was held at the Golden Valley City Hall,
uncil Chambers, 7800 Golden Val y Road, Golden Valley, Minnesota, on Monday,
Sep er 9, 2013. Chair Kluchka c Iled the meeting to order at 7 pm.
Those present Planning Comm sioners Baker, Boudreau-Lan ' aka,
McCarty, Segelbaum Waldhaus . Also present was nity Development
Director Mark Grimes, City er J e Hogeboo Administrative Assistant Lisa
Wittman, Commissioner Cera was nt
1. Approval of Minutes
August 1 3 Regular Plan ng Commission Meetin
MOV y Waldhauser, seconded b McCarty and motion carried unanimously to
ove the August 12, 2013 minute s submitted.
2. Informal Public Hearing — Property Rezoning — 6000 Duluth Street— King of
Grace Lutheran Church and School -Z01 1-14
Applicant: King of Grace Lutheran Church and School
Addresses: 6000 Duluth Street
Purpose: To rezone the properties from 1-1 Institutional with a setback restriction
to 1-1 Institutional without restrictions.
Hogeboom referred to a site plan of the property and explained that it is currently zoned
Institutional with a restrictive condition requiring a 120-foot "landscaped" setback area
along the north property line. The applicant is proposing to rezone to property to the
standard Institutional zoning district without the restrictive setback condition. He
explained that this setback was established when the northern portion of the church
property was rezoned from residential and added that conditions on a rezoning request
are not allowed today. He showed the Commissioners an illustration of the applicant's
master plan and explained the applicant's proposal to construct a portion of a new
playground within the 120-foot restricted setback area. He stated that staff is
recommending approval of the applicant's request.
Waldhauser said she understands that restrictions can no longer be placed on rezoning
proposals and questioned if a PUD would be an option in this case. Hogeboom said a
PUD could be used, however PUDs are typically used when there is more than one
building on a property.
Baker asked Hogeboom if there is any record regarding the nature of the resident's
concerns in 1969. Hogeboom stated that the nature of the concerns was that an
institutional use would be too close and too impactful to the single family residential
properties to the north resulting in the restriction. Waldhauser noted that there are also
Minutes of the Golden Valley Planning Commission
September 9, 2013
Page 2
single family residential properties to the east and asked why there were no restrictions
placed on that side of the property. Hogeboom explained that the property along the
north side (the 120-foot setback area) of the applicant's property was originally platted
as single family residential lots so when the applicant replatted the property for an
institutional use that is when the restriction was placed on the property. So the church
pre-dates 1969 and this property was zoned Institutional before 1969.
McCarty asked if all four property lines are considered to be front yards and if any of the
setback requirements are being met on this property. Hogeboom explained that this
property does have four fronts and if the property were rezoned to the standard
Institutional zoning district, any structure or parking lot would have to meet the 35-foot
front yard setback requirement.
Segelbaum asked how the 120-foot setback area is currently being used. Hogeboom
suggested the applicant respond to that question.
Gregg Prest, Director of Trustees for King of Grace Lutheran Church and School,
Applicant, stated that they don't really use the 120-foot setback area at all except
occasionally for a picnic or event. He said the church has tried to abide by the
neighbor's desire that it not be used. He explained that their current playground area is
located in a traffic circle on the east side of the property which is not the best place for
it, so they would like to move it to the north side of their building where a portion of it
would be in the 120-foot setback area. He added that the proposed playground would
be an asset for the neighborhood and would be available for everyone to use. He
referred to the illustration of the church's master plan and noted that the parking lot
shown is not part of their plans at this time. He added that there is no plan at this time to
expand the church, school or parking lot areas at all.
Baker referred to the illustrated plan and asked if the lawn area shown is currently open
lawn. Prest said yes. Baker asked if the church uses that area regularly. Prest said no.
Segelbaum asked the applicant if they envision installing fencing or no trespassing
signs around the playground. Prest said no and reiterated that the proposed playground
is intended for everyone to use.
Waldhauser asked the applicant if they had considered putting the proposed playground
in a location that would be within the setback requirements. Prest said yes and
explained that the property is wetter to the south, there wouldn't be enough room to
squeeze the playground in and it would cause the playground to be further away from
the north entrance to the building. Waldhauser asked if they had considered using the
southern portion of the open lawn area. Prest said there is a hill and topography issues
in that area.
Baker said he likes the idea of allowing the neighborhood use of the playground but he
is concerned that it will be enclosed with plantings according to the illustration. He
suggested that the applicant consider a more open design for the playground. Prest
said that the plans aren't yet final.
Minutes of the Golden Valley Planning Commission
September 9, 2013
Page 3
Kluchka noted that the illustrated drawing is titled "Plan B" and asked about other
concepts that were considered. Prest said they have thought about other concepts and
said that one concept included putting in a ball field, but they decided not to go with that
plan.
Kluchka asked if they intend to have any outdoor services that may impact the
neighborhood. Prest said no, outdoor services are not their style. He added that they
had considered an amphitheater for teaching, but decided against that as well.
Kluchka opened the public hearing.
Joel Hendrickson, 6000 Kenneth Way, referred to what was said earlier about the
church predating the 1969 setback restriction agreement and said he disagrees and
asked that the City go back and look at the public record. He said there have been
plans like this before throughout the history of the agreement, none of which have
happened. He said when he bought his house the person selling it said good luck with
your neighbor meaning the church and that they never did what they promised to do. He
stated that neighbors have called the City and have been told that the City doesn't have
a copy of the restriction from 1969 that was registered at Hennepin County. He
distributed copies of the restrictive covenant to the Commissioners and stated that the
church imposed the covenant on themselves. He said there was previous dialogue
about the location of the playground when they built the gymnasium in 1993 because
they cut down the trees and he asked them what they were doing and they said that is
where they are putting a playground. He said the church said in 1984, when they built
their sanctuary that they were going to put in a parking lot and extra egresses on
Kenneth Way and the neighbors got together and reminded the City of the covenant
and the proposal was taken off the table because they realized the foolishness. He
stated that in the covenant there is also a damages clause and he doesn't think he
would have a hard time rallying his neighbors to seek damages. He said it's been great
to have a place for his kids to play. When the church installed a basketball court his son
would tell him about the kids they played basketball with and he called it the law of
unintended consequences because kids from Golden Valley Road would come to this
basketball court to play because there were hoops with nets. He said his son would tell
him about the language these kids used and where they were urinating and he thought
the church never anticipated that. He said that did affect the neighborhood and it
caused them to be more vigilant about calling for supervision when that was occurring.
He said he would like the church to abide by the covenant and added that the original
church was not this church. It was an apostolic Lutheran church and the reason the
covenant was put into place was to allow the streets to be put in for residential lots. He
said he always finds it ironic that he has to remind the church of the covenant. He
added that when he moved in he realized the "green plan" for the property had never
been done so rather than argue he planted three large, substantial trees with white
pines in between, at his cost. Now the white pines have been cut down and the church
is proposing to cut down the remaining balsams. He asked for a tax receipt, but the
church wouldn't give him one, which he finds interesting.
Minutes of the Golden Valley Planning Commission
September 9, 2013
Page 4
Grimes asked Mr. Hendrickson if the covenant was extended beyond 1999. Mr.
Hendrickson stated that the covenant was initially 30 years with an additional 30 years if
there was agreement with the 12 affected properties so in reality it is a 60-year
covenant that can be broken with an agreement of the neighbors so he is appalled that
this proposal has gotten to this stage. He said he wants the City to go back into the files
and realize there was a change in ownership from an initial sleepy apostolic Lutheran
church that outgrew their facility and sold it. It was then converted to residential and he
hopes the covenant will be upheld.
Barbara Patterson, 2040 Adair Avenue North, said she begs to differ with the church
saying that the open space is not used because the kids use it every single day. They
play baseball, they have Phy Ed and they play field hockey and soccer. She said she is
also concerned about traffic because the more things that are put there the more traffic
there will be. Also, they have a tendency to use the streets all the way around the
property which she feels is unsafe. They put out orange cones and run along the edge
of the street so there should be signs installed stating there are children at play.
Pastor Ekhoff, King of Grace Lutheran Church and School, said he would like to clarify
that they did not cut trees down. They had to be removed by law because a chemical
that was used on the property ended up killing them. He said the few times that the kids
do run on the street is to fulfill the requirements of the Presidential Fitness Program. He
explained that they notify the Police Department as best they can when that is
happening. He referred to the gym addition they built and stated that some trees were
cut down for that, but he doesn't believe any other trees were taken out other than a
cottonwood that fell into the street and had to be removed. He clarified that they are a
part of the Evangelical Lutheran Synod and not the Wisconsin Synod as Mr.
Hendrickson mentioned.
Seeing and hearing no one else wishing to comment, Kluchka closed the public hearing.
Grimes stated that he has never seen the covenant agreement distributed by Mr.
Hendrickson. He noted that the City is not listed as a party in the agreement but he
would like to review it with the City Attorney before this proposal moves forward.
Kluchka questioned how a zoning restriction and a covenant differ. Grimes said it is
unclear to him how the covenant and ordinance have worked in this case.
Boudreau-Landis asked if the covenant applies to the current property owner.
Segelbaum said he thinks it does.
Baker asked if the City is obligated to honor the covenant. Grimes said he is not sure
and would like to talk to the City Attorney about it. Baker asked how the City typically
responds to the existence of covenants. Grimes explained that if this property were
zoned standard Institutional without restrictions and there was a covenant and the
Church wanted to expand a neighbor, or someone party to the covenant, would
probably inform the City and the City would have to decide if it wanted to get into that
type of legal circumstance.
Minutes of the Golden Valley Planning Commission
September 9, 2013
Page 5
Waldhauser asked if it is up to the neighbors to enforce the covenant. Grimes said he
thinks it is because he doesn't think the City is a party included in the covenant.
Kluchka referred to covenant and asked what "no other activity therein" means and if it
means that there can be no programing in the 120-foot setback area in question.
Waldhauser stated that if the covenant is outside of the Planning Commission's purview
than the activity that takes place within the 120-foot setback area is even more outside
their purview. Baker said he thinks it is within their purview because of the ordinance
that was adopted by the City regarding the restriction. Segelbaum said the decision
before the Planning Commission is to eliminate the restrictive condition regarding the
zoning, not to interpret or modify the ordinance or the covenant.
Kluchka said he is concerned about enforcement issues and if people are doing what
they are supposed to be doing. He asked Grimes if there have been any complaints
regarding the applicant. Grimes stated that over the years there have been concerns
about the church expanding and he has received typical traffic related questions, but he
has not received many complaints. He added that the Church does do a good job in
following the Sign Code rules. Baker questioned if they should pursue the complaints
they've heard further with law enforcement staff. Kluchka said he thinks more research
about complaints would be good, but that is a moot point right now in the Planning
Commission's current review of the proposal.
McCarty agreed with Segelbaum that the covenant may be up to the neighbors to
enforce and that the Planning Commission is looking at the proposal as a rezoning at
this point. Grimes stated that the City Attorney wasn't aware of the covenant agreement.
He stated that conditioning a rezoning like the City did in 1969 is not legal today.
Waldhauser asked about the down side of leaving the zoning as it is keeping the
restrictive zoning condition in place. Grimes said the covenant would stand until it
expires in 2028. He said the zoning could be changed to the standard 1-1 Institutional
zoning district and the covenant would continue it if is a legitimate legal document.
Waldhauser stated that if the property is not rezoned it would just stay as it is and
questioned why the City would want to rezone it. Baker stated that if the City were to
persuade the neighbors that the covenant can be removed then the combination of the
rezoning and removal of the covenant would allow the Church to do what they are
proposing to do. Waldhauser stated that the neighbors don't want to remove the
covenant. Baker noted that they have only heard from two neighbors. Kluchka said if the
Church and neighbors came to together and decided that they don't want the covenant
anymore that would be a good indication to the City that this is something everyone
wants. Baker suggested that the Church look into eliminating the covenant before they
come back to the City for approval of their rezoning proposal. Kluchka asked if there is a
time limit as to when the Church can come back. Grimes said there is a 60-day time
frame to consider rezoning requests. Segelbaum said he thinks the Planning
Commission can vote on this proposal regardless of the covenant, but he would support
tabling the request.
Minutes of the Golden Valley Planning Commission
September 9, 2013
Page 6
McCarty stated that the proposed playground could be moved closer to the Church or to
the north side of the Church without the need to rezone the property or change the
covenant. Kluchka agreed that there are other ways to accomplish this proposal and
said he is inclined to deny this request. McCarty agreed that he would rather deny the
request instead of tabling the item in order to discuss covenants that don't affect them.
Boudreau-Landis agreed there are other options as well.
MOVED by McCarty, seconded by Backer and motion carried 5 to 1 to recommend
denial of the request to rezone the property located at 6000 Duluth Street from 1-1
Institutional with a setback restriction to 1-1 Institutional without restrictions. Segelbaum
voted no.
Informal Public Hearing — Preli inary Plan Review— Planned Unit
Development (PUD) #113 — Th Xenia
pplicant: Slosburg Company
Ad ss: 700 & 800 Xenia Av nue South
Purpose. To construct a 5-sto , 372-unit market rate apartment b ing.
Hogeboom referred a location map ar d discussed the applicant' roposal to
construct a 5-story, 3 nit apartment t uilding that will includ 42 parking spaces on
the 5.88 acre site locate t 700 & 800 )lenia Avenue Sout a discussed some of the
major amenities including a indoor poo%fitness center 'tdoor pool/courtyard, media
room, business center, obse tion dec , dog run ar, and upscale in-unit amenities.
He stated that he receives man alts re 3arding property because it is a vacant,
highly visible site. He stated that s ff is >eco ending approval of the Preliminary Plan
for The Xenia proposal.
Segelbaum asked if this property is i <: " F district. Hogeboom said no, it is not part of
a TIF district however, it was at c, poi
Segelbaum asked if there h� been of er seri s requests about developing this
property. Hogeboom stat that there w:s an offi retail proposal in 2009 but that
project was never don h
Waldhauser ask e ow this proposal c mpares to the 3. ,4 apartment proposal.
Hogeboom sta d that this project is s tiller than the 3.9.4 roposal and is more
comparable the Arcata apartment pr 'ject.
Baker a ed if this proposal has a seni r component. Hogeboom id no.
Wa auser asked why this developm nt is a PUD, Hogeboom state at multi-family
d elopments are traditionally done a a PUD to allow more flexibility in setbacks in
der to fit the site.
Vf t
ORDIME NO. 328
AN OTDINANCE AMENDING Tff-%WMG CODE
Instttutional Zoning District)
(King of Grace Lutheran Church)
The Village Council of the Village Hage of Bolden valley does
ordain as follows:
Section 1. The Zoning Code is amended in Section 11.01
thereof by adding thereto the following described tracts of land
which are hereby established as an 1-1 Institutional Zoning
District;
Etas I, 2, 3, 4. Block 2, Church Addition,
Golden Valley, Minnesota;
provided however, that a setback of one hundred twenty (120)
feet from the northerly line 'of said lots shall be required and
that all of said required setback area shall be required to be
landscaped with no other activity therein.
Section 2. This ordinance shall take effect and be in
force from and after its passage and publication.
Passed by the Village Council this 5th day of August, 1969.
' pares , yor
Attest s
RUE Pervaman, VillageCie--r7-
ROBERT M. SKARE
Village Attorney
-- 1200 First National Bank Building
Minneapolis, Minnesota 55402
DECLARATION OF PROTECTIVE COVENANTS
WHEREAS, King of Grace Evangelical Lutheran Church,. a
Minnesota corporation, is the owner of Lots 1 through 4, inclusive,
Block 2, Church Addition;
WHEREAS, said owner is 'desirous of changing the zoni.ng'of
the subject lots so as to permit the construction of a maximum of three
driveways over parts of Lot 5, Block 2, Church Addition;
WHEREAS, the adjoining owners of property legally described
as Lots I through 6, inclusive, Block 1, Church Addition, and Lots 1 through
6, inclusive , Block 1, Fourth Addition of Brunswick Court are desirous of
retaining the residential character of the neighborhood, and have withdrawn
their objection to the change and zoning upon the condition that the,following
covenants and restrictions be declared.
THEREFORE, King of Grace Evangelical Lutheran Church, a
Minnesota corporation, owner of Lots I through 4, Block 2, Church Addition,
Hennepin County, hereby imposes the following covenants and restrictions upon
the following described property:
The North 120 feet of Lots 1 through 4, inclusive,
Block 2, Church Addition
1. Said premises shall be maintained as an open, green'area, and
as such sodded and suitably landscaped so as to be compatible with the residential
character of the adjoining properties and be so maintained by the owner, its
successors and assigns.
2. No buildings, structures, fences, driveways or parking areas
shall be constructed thereon, nor shall the subject property be put to any use
incompatible with the residential character of the adjoining residential properties.
3; . These covenants and restrictions shall run with the land, and
be binding upon the owner, its successors and assigns for a period of thirty
years from the date!of recording. Said covenants and restrictions shall continue
for an additional, thirty year period unless released by a majority of the owners
of Lots 1 through 6; inclusive, Block 1, Church Addition, and Lots 1 through 6,
inclusive, B1'ock 1, Fourth Addition of Brunswick Court.
4. The covenants and restrictions contained herein are for the
benefit of the parties who may from time to time have an interest in premises
described in Paragraph 3 above and enforcement thereof against any party or
parties who shall violate or attempt to violate them, shall be by proceedings at
law or in equity to prevent him or them from so doing or to recover damages for
such violations. Failure to enforce any part of this declaration shall in no event
be deemed to be a waiver of the right to do so as to any subsequent violation.
5. Invalidation of any one of these covenants or any part of any
covenant by judgment or court order shall in no wise affect any of the other pro-
visions, which// shall remain in full force and effect.
Dated this day of August, 1969.
In the presence of: KING OF GRACE EVANGELICAL
LUTHERAN CHURCH, a
Minnesota orporatio
eta .
By
Its P esident
1
And f
Its Secretary
NO CORPORATE SEAL
3
STATE OF MINNESOTA )
SS.
COUNTY OF HENNEPIN )
On this ay of August, 1969, before me,a notary public
within and for said County personally appeared Ellsworth Z a h l and
Robe rt D e c h a i n e to be personally known, who being each by me duly
sworn did say that they are respectively the President and Secretary of the
corporation named in the foregoing instrument, and that said instrument was
signed andbeewi-ad in behalf of said corporation by authority of its Board of
Trustees and said Ellsworth Zahl and Robe rt Dechaine acknowledged
said instrument to be the free act and deed of said corporation.
ROBERT L',scxh= o,111'11 ,
Notary PUNIC, Hennopin couafy
Mt A.t r .
XV .commission uptces Feb , 1 S
r
r
XC71.6f p
v newfITUR Or orcag
TY OF NENNE71IN
y certify that the witiliri InstrNment
>d for r(-Cr)rd in thi- office on the
clay of DEC A. D 79th of ..
M., and vva6 d.ly rt-cordj;c! in book
f
Hennepin County Records
NEC187Eft OF DEGp�
'DEPUTY REMOTER OF aSBDQ ?
i
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§ 11.46
Section 11.46: Institutional Zoning District
Subdivision 1. Purpose
The purpose of the Institutional Zoning District is to establish areas where both
public and private institutional uses such as schools, hospitals, parks, golf courses,
nursing homes and public buildings may be located.
Subdivision 2. District Established
Properties shall be established within the Institutional Zoning District in the manner
provided for in Section 11.90, Subdivision 3 of this Chapter, and when thus
established shall be incorporated in this Section 11.46, Subdivision 2 by an
ordinance which makes cross-reference to this Section 11.46 and which shall
become a part hereof and of Section 11.10, Subdivision 2 thereof, as fully as if set
forth herein. In addition the Institutional Zoning Districts thus established, and/or
any subsequent changes to the same which shall be made and established in a
similar manner, shall be reflected in the official zoning map of the City as provided
in Section 11.11 of this Chapter.
*Subdivision 3. Uses Permitted
A. The following uses shall be permitted in the I-1 Institutional Zoning Sub-
District:
1. Churches
2. Schools, public and parochial, excepting colleges, seminaries and other
institutes of higher education
Source: Ordinance No. 567
Effective Date: 5-28-82
3. Essential Services - Class I
Source: Ordinance No. 80, 2nd Series
Effective Date: 11-28-91
4. Seasonal Farm Produce Sales
Source: Ordinance No. 127, 2nd Series
Effective Date: 4-27-95
B. The following uses shall be permitted in the I-2 Institutional Zoning Sub-
District:
1. Public and private libraries
2. Museums
Golden Valley City Code Page 1 of 6
§ 11.46
3. Colleges, seminaries and other institutes of higher education
Source: Ordinance No. 567
Effective Date: 5-28-82
4. Essential Services - Class I
Source: Ordinance No. 80, 2nd Series
Effective Date: 11-28-91
C. The following uses shall be permitted in the I-3 Institutional Zoning Sub-
District:
1. Rest homes, sanitariums, nursing homes, clinics and other buildings
incidental to the operation thereof
Source: Ordinance No. 567
Effective Date: 5-28-82
2. Essential Services - Class I
Source: Ordinance No. 80, 2nd Series
Effective Date: 11-28-91
D. The following uses shall be permitted in the I-4 Institutional Zoning Sub-
District:
1. Golf courses, country clubs and polo fields, excepting those carried on as
a business such as miniature golf courses
2. Parks, playgrounds, City offices, fire stations, and other lands incidental to
the operation of the City
Source: Ordinance No, 567
Effective Date: 5-28-82
3. Essential Services - Class I
Source: Ordinance No. 80, 2nd Series
Effective Date: 11-28-91
E. The following uses shall be permitted in the I-5 Institutional zoning Sub-
District:
1. Cemeteries
Source: Ordinance No. 567
Effective Date: 5-28-82
2. Essential Services - Class I
Source: Ordinance No. 80, 2nd Series
Effective Date: 11-28-91
*Subdivision 4. Conditional Uses
The following uses may be allowed in the following Institutional Zoning Sub-
Districts when approved by the Council in accordance with the provisions of this
Chapter:
Golden Valley City Code Page 2 of 6
§ 11.46
A. Congregate Housing. Housing for the elderly, providing at least one (1)
prepared meal per day, in a common dining room. Such housing may also
provide certain medical and social services over and above what might be
provided in a standard elderly apartment complex. Congregate housing may
be allowed as a Conditional Use only within the I-3 Institutional Zoning Sub-
District.
B. Elderly Housing. Housing (either subsidized or unsubsidized) specifically
designed and built for occupancy by elder persons in much the same way
that standard multi-family dwellings might be built and managed, but not
providing the same services as congregate housing, may be allowed as a
Conditional Use only within the I-3 Institutional Zoning Sub-District.
C. Hospitals and out-patient surgical facilities may be allowed as a Conditional
Use only within the I-3 Institutional Zoning Sub-District.
D. Lodge halls and private clubs may be allowed as a Conditional Use only
within the I-3 Institutional zoning Sub-District.
Source: Ordinance No. 567
Effective Date: 5-28-82
E. Residential facilities only within the I-3 Institutional Zoning Sub-District.
Source: Ordinance No. 653
Effective Date: 4-12-85
F. Child day-care facilities may also be permitted as a Conditional Use within
the I-1, I-2, I-3 and/or I-4 Institutional Zoning Sub-Districts.
Source: Ordinance No. 567
Effective Date: 5-28-82
G. Heliports, as herein defined.
H. Such other uses which, in the opinion of the Council, are reasonably
compatible with the uses specifically described in Subdivision 3, above, may
be permitted as a Conditional Use in any of the four Institutional Zoning Sub-
Districts set forth above.
Source: Ordinance No. 643
Effective Date: 11-16-84
I. Adult Day Care Centers shall be permitted as a Conditional Use within the I-
1, I-2, I-3 and/or I-4 Institutional Sub-Districts.
Source: Ordinance No. 264, 2nd Series
Effective Date: 12-13-01
Golden Valley City Code Page 3 of 6
§ 11.46
*Subdivision S. Height
No building or structure other than water tanks, water tank towers and lighting
fixtures, shall be erected to exceed three (3) stories in height in the Institutional
Zoning District. Church spires, belfries, chimneys and architectural finials may be
permitted to exceed the maximum provisions of this Section when erected in
accordance with this Chapter.
Source: Ordinance No. 609
Effective Date: 11-11-83
*Subdivision 6. Use of Land
For the purpose of maintaining the character of this Zoning District, no buildings or
structures shall occupy more than twenty-five percent (25%) of the area of the lot
or premises.
Source: Ordinance No. 567
Effective Date: 5-28-82
*Subdivision 7. Yard Requirements
Side and rear yards in the Institutional Zoning District shall not be less than fifty
(50) feet in width and depth, of which at least twenty-five (25) feet adjacent to the
property line shall be landscaped and maintained as a buffer zone.
Source: Ordinance No. 609
Effective Date: 11-11-83
*Subdivision S. Front Yards
No building or structure in an Institutional Zoning District shall be located less than
thirty-five (35) feet from the property line abutting a public street. All portions of a
parcel of land abutting a public street shall be regarded as front yards. All front
yards shall be planted, and landscaped, and shall contain no off-street parking.
Source: Ordinance No. 567
Effective Date: 5-28-82
*Subdivision 9. Accessory Uses
The following are permitted accessory uses in this Zoning District:
A. Essential Services - Class I
B. Accessory Structures. The following regulations and setbacks shall be
required for accessory structures in this Zoning District:
1. Location. A Detached accessory structure shall be located completely to
the rear of the principal structure, unless it is built with frost footings. In
that case, an accessory structure may be built no closer to the front
setback as the principal structure. If an addition is built on to an existing
principal structure that would create a situation where an existing garage
or accessory structure would not be completely to the rear of the addition
to the principal structure, the addition to the principal structure may be
built and the existing garage or accessory structure may remain and be
Golden Valley City Code Page 4 of 6
§ 11.46
considered conforming as long as there is at least ten (10) feet of
separation between the existing principal structure with the addition and
the existing garage or accessory structure. Additions may be made to the
existing garage or accessory structure as long as the ten (10) feet of
separation can be met.
2. Front setback. Accessory structures shall be located no less than the
required setback for this Zoning District from the front property line along
a street right-of-way line.
3. Side and rear setbacks. Accessory structures shall be located no less than
the required setback for principal structures in this Zoning District from a
side or rear yard property line.
4. Separation between structures. Accessory structures shall be located no
less than ten (10) feet from any principal structure and from any other
accessory structure.
5. Alley setback. Accessory structures shall be located no less than ten (10)
feet from an alley.
6. Height limitations. No accessory structure shall be erected in this Zoning
District to exceed a height of one (1) story. One (1) story may not exceed
ten (10) feet from the floor to the top plate. Attic space in accessory
structures shall be used only for storage and/or utility space.
7. Cornices and eaves. Cornices and eaves may not project more than thirty
(30) inches into a required setback.
8. Number and Size of accessory structures. Only one (1) accessory
structure shall be allowed on each property and no accessory structure
shall be larger in size than the principal structure. In no case shall an
accessory structure be greater than one thousand (1000) square feet or
less than one hundred-twenty (120) square feet in area. Accessory
structures include storage buildings, detached sheds, greenhouses,
gazebos and other shelters. Accessory structures not used solely for
storage and related activities shall have open sides from floor to ceiling,
except that they may have railings and temporary screening (used only
on two (2) sides at a time), all constructed in accordance with the building
code.
9. Design. All accessory structures constructed after the construction of the
principal structure must be designed and constructed of similar materials
as determined by the City Manager or his designee.
10. Building Permits. All accessory structures located in this Zoning District
require a building permit.
Golden Valley City Code Page 5 of 6
§ 11.46
11. Parking structures and garages. In this Zoning District, parking structures
and garages shall not be considered accessory structures if they are used
to meet the required number of parking spaces.
Source: Ordinance No. 344, 2nd Series
Effective Date: 05-25-06
*Renumbering Source (Subd. 3-9):
Ordinance 346, 2nd Series
Effective Date: 7-1-06
Golden Valley City Code Page 6 of 6
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i;
ORDINANCE NO. 542, 2ND SERIES
AN ORDINANCE AMENDING THE CITY CODE
Rescinding Ordinance No. 328
Institutional Zoning District King of Grace Lutheran Church
The City Council for the City of Golden Valley hereby ordains:
Section 1. City Code Chapter 11 entitled "Land Use Regulations (Zoning)" is
amended in Section 11.10, Subd. 2, by modifying the zoning of certain tracts of land by
rescinding Ordinance 328 thereby removing the special restrictions placed on the
northerly 120 feet of the property.
Section 2. City Code Chapter 1 entitled "General Provisions and Definitions
Applicable to the Entire City Code Including Penalty for Violation and Section 11.99
entitled "Violation a Misdemeanor" are hereby adopted in their entirety, by reference, as
though repeated verbatim herein.
Section 3. This Ordinance shall take effect from and after its passage and
publication as required by law.
Adopted by the City Council this 17th day of February 2015.
/s/Shepard M. Harris
Shepard M. Harris, Mayor
ATTEST.-
/s/Kristine
TTEST:/s/Kristine A. Luedke
Kristine A. Luedke, City Clerk
MEMORANDUM
:. valley Public r
ti c Wi ks Department
763-593-8030/763-593-3988(fax)
Executive Summary For Action
Golden Valley City Council Meeting
February 17, 2015
Agenda Item
6. A. Adoption of 2014 National Electrical Code and 2015 State Building Code
Prepared By
Jerry Frevel, Building Official
Summary
The State of Minnesota adopted the 2014 National Electrical Code on July 1, 2014, replacing the
2011 Code. The National Electrical Code is required to be adopted locally and is enforced through
consulting services provided by Stephen Tokle Inspections, Inc.
The State of Minnesota adopted the following Chapters of the 2015 State Building Code on
January 24, 2015:
1300 Minnesota Building Code Administration
1303 Minnesota Provisions to the State Building Code
1307 Minnesota Elevators and Related Devices Code
1309 Minnesota Residential Code
1311 Minnesota Conservation Code for Existing Buildings
1322 Minnesota Residential Energy Code
1341 Minnesota Accessibility Code
1346 Minnesota Mechanical and Fuel Gas Codes
Adoption of Chapter 1305 Minnesota Building Code will occur later this year.
Attachments
• Chapter 4, Section 4.01, Minnesota Building Code (underlined/strikeout version) (1 page)
• Ordinance #543, Adopting the 2015 State Building Code and Incorporation of the 2014
National Electric Code (1 page)
Recommendation
Motion to adopt Ordinance #543, amending the City Code, adopting the 2015 State Building Code
and Incorporation of the 2014 National Electric Code on first consideration.
ORDINANCE NO. 543, 2ND SERIES
AN ORDINANCE AMENDING THE CITY CODE
Adopting the 2015 State Building Code and
Incorporation of the 2014 National Electric Code
The City Council for the City of Golden Valley hereby ordains:
Section 1. City Code Section 4.01, entitled "Building Code Adopted" is amended by
Deleting the following items and replacing them as follows:
A. 1300 - Minnesota Building Code Administration
D. 1303 - Minnesota Provisions to the State Building Code
G. 1307 - Minnesota Elevators and Related Devices Code
H. 1309 - Minnesota Residential Code
I. 1311 - Minnesota Conservation Code for Existing Buildings
J. 1315 - Adoption of 2014 National Electrical Code
U. 1322 - Minnesota Residential Energy Code
N. 1341 - Minnesota Accessibility Code
O. 1346 - Minnesota Mechanical and Fuel Gas Codes
Section 8. This ordinance shall take effect and be in force from and after its passage
and publication.
Adopted by the City Council this 3rd day of March, 2015.
/s/Shepard M. Harris
Shepard M. Harris, Mayor
ATTEST:
/s/ Kristine A. Luedke
Kristine A. Luedke, City Clerk
4 •
Chapter •
BUILDINGS AND SIGNS
Section 4.01: Building Code Adopted
The Minnesota State Building Code, established pursuant to Minnesota Statutes
16B.59 to 16B.75, one copy of which is on file in the office of the Golden Valley City
Clerk, is hereby adopted as the Building Code for the City of Golden Valley. Such
code is hereby adopted by reference as though set forth verbatim herein, including
the following Chapters:
A. 1300 Administration ef the Minnesota State Building Code Minnesota
Building Code Administration
B. 1301 Building Official Certification
C. 1302 State Building Construction Approvals
D. 1303 Minnesota Provisions to the State Building Code
E. 1305 Adoption of the 2006 International Building Code
F. 1306 Special Fire Protection Systems
1. Chapter 1306.0020 Subd. 2
G. 1307 Elevators and Related Devices Minnesota Elevators and Related
Devices Code
H. 1309 Adeptien of the 2006 international Residential Gede Minnesota
Residential Code
I. 1311 Adeptien of the 2000 Guidelines for the Rehabilitatien ef
Existing Minnesota Conservation Code for Existing Buildings
J. 1315 Adeptien ef 2011 National Electrical Code Adoption of 2014
National Electrical Code
K. 1325 Solar Energy Systems
L. 1330 Fallout Shelters
M. 1335 Floodproofing Regulations
1. Parts 1335.0600 through 1335.1100 inclusive
N. 1341 Minnesota Accessibility Code
O. 1346 Adeptien ef the Minneseta State Mechanical Code composed e
the 2006 Internat`menal Mechanical Cede and the 2006
n,
inteFnat;ena' Fuel Gas Code with Minneseta Amendments
Minnesota Mechanical and Fuel Gas Codes
Golden Valley City Code
city of
v
val.1, Planning Department
763-593-8095/763-593-8109(fax)
Executive Summary For Action
Golden Valley City Council Meeting
February 17, 2015
Agenda Item
6. B. METRO Blue Line Extension Update
Prepared By
Jason Zimmerman, Planning Manager
Project Summary
The Issue Resolution Team (IRT) met in January and February to discuss a number of items,
including: the location of the Plymouth Avenue station platform, potential impacts to the Bassett
Creek floodplain, and a detailed look at both potential station locations.
The Metropolitan Council will be hosting a Community Workshop on Thursday, February 26,
2015, at 6 pm at St. Margaret Mary Church to receive public input on the benefits and impacts of
the two potential LRT station locations.
The Council will be appointing representatives to the Community Advisory Committee (CAC)
and the Business Advisory Committee (BAC) in March. These committees will meet monthly to
review and provide input into the light rail planning process.
Station Area Summary
A second open house was held at UROC on January 29 to display revised station area concepts
and answer questions from residents. The meeting materials can be viewed on the County's
Bottineau web site (www.hennepin.us/bottineau). Summary materials will also be posted when
they become available.
On February 5, 2015, the City's Bottineau Planning Advisory Committee (PAC) met to discuss the
upcoming recommendation by the Project Office to the Corridor Management Committee (CMC)
regarding the proposed stations in Golden Valley. The group discussed the pros and cons of
having one station at either Golden Valley Road or at Plymouth Avenue or of having both
stations.
Attachments
• February 26 Community Workshop flyer (1 page)
• Station Option Comparison (3 pages)
• Email regarding METRO Blue Line Extension (1 page)
Recommended Action
Receive and file METRO Blue Line Extension Update.
LINF
o�vE ��
L- COMMUNITY WORKSHOP W ��^
METROPOLITAN O
C O U N C I L `L 2
Golden Valley Road and Plymouth Avenue
Station Locations
The Metropolitan Council will host a community workshop on Thursday, February 26 to
receive public input on the benefits and impacts of two potential LRT station locations.
Two station locations intended to serve Golden Thursday, February 26, 2015
Valley/North Minneapolis residents were evaluated
in the Draft Environmental Impact Statement (Draft 6:00-7:30 pm
EIS) —Golden Valley Road and Plymouth Avenue. Church Of St. Margaret Mary —
Project designers and engineers want to hear from Visitation Hall
the public about their preferences and concerns with
2323 Zenith Ave. N.
the proposed stations. Golden Valley, MN 55422
Specifically: Map: https://goo.gl/maps/E5egM
• What are the potential benefits to your For those who may be new to the LRT project
neighborhood? city? region? or would like a refresher, general background
• What are the potential impacts to your information will be presented from 5:30-6:00 pm.
Staff will also be present until 8:00 pm to answer any
neighborhood? city? region? other questions.
• What should the project team know more about?
4 a� � Li
Participants will have the opportunity to review and �� G�eP U �RWVEN
comment on station concepts. Public input will help D � � a
inform a recommendation of which station(s) should �, _ ; ,v+C69 Z z' , TQN
Z Golden;Vallej••.. aULU
�Zmove forward for further desi n. `'��a',,•'i. iib'9 RoaBStatioVALLEY
AGENDA s LA EE rgT�E�J" OR
17TH A�N < <
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O
Activity Time
<�
Welcome and Overview 6:00 pm : :'Tt'iE(?DORE:�NI.RTH;:::' x Q 161N
Facilitated Workshop
(discussions in small groups) 6:30 pm 4 AVE
Wrap-up and Next Steps 7:30 pm
zu UL
HEODORE ••'•PI)/fpOUtFLAVen.0@:
IRTH PARK '•
:::'i$tOtlOrh: El
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Learn more about the
O Qa a
Potential Station Locations
Blue Line Extension Project at METRO Blue Line Extension
O 750 I,SOO LJ
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KAVE�N
www.B l u e Li n e Ext.o rq Feet
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Any individual who requires assistance to participate should contact Community Outreach Coordinator Sophia
Ginis (612-373-3895 or sophia.ainis@metrotransit.ora). Requests for special assistance should be made at least
three business days before the meeting.
Bottineau LRT Planning Advisory Committee
February 5, 2015
Station Option Comparison - Key Points
Two Station Option
Pros_ Cons
Each station serves a different function, Greater construction impacts with two
different neighborhoods, and different needs stations
More new infrastructure would be built that Parking in larger demand with two stations
benefits our community in the long term
Property values will increase in a larger area Building two stations will increase cost of
_ project _
Further improvements in access to the light Great noise impacts with train stopping twice
trail and development opportunities in the-area
Greater ridership numbers with two stations This option results in the maximum ecological
impact possible
Presence of additional police in the area Light rail travel time is increased with two
stations
Increased Theodore Wirth Park use More pressure is put on Theodore Wirth Park
with two stations
Surrounding Parks will be safer with more Surrounding parks will be used by more
people using them (isolation can make them people, which is not desirable to those using
unsafe) _ parks today
Two Station Option Key Points:
Pros: Each station serves a different function and serves different neighborhoods. Having two
stations will increase overall ridership, development opportunities, and opportunity to utilize
the assets of the area (parks, businesses, homes).
Cons: However, building two stations will have a greater impact on the surroundings in regards
to ecology, noise, light, and general construction work to build the track and stations. It will also
slow travel time and create larger demand in the area for parking and use of the surrounding
parks.
Golden Valley Road Station Option
Pros _ __ Cons
Less environmental impact on Basset Creek Noise impacts to nearby Golden Valley
residents with train stopping at GV Road
Better access for Golden Valley residents Uncooperative Minneapolis Park and
Recreation Board
Better access for Golden Valley businesses Light pollution impacts to nearby Golden
Valley residents and park users
Better bus service possible in Golden Valley More traffic and busses on Golden Valley Road
Improved infrastructure at the station area — Possibility of increased demand for on-street
electricity, water, street improvements parking in surrounding neighborhoods
Access for Courage Kenney residents, visitors, If station is a commuter destination, this
and employees negatively impacts the surrounding residents
Possibly less traffic impact on Golden Valley Increased safety concerns for nearby residents
Road due to Courage Kenny visitors
Roundabout at Golden Valley Road and With only this station, there is reduced access
Theodore Wirth Parkway a stronger possibility to light rail for North Minneapolis residents
with the building of this station
Better connections to the parks to the north of
the station could be provided (informed from
station area planning)
Faster travel time for LRT with one station
instead of two
Golden Valley Road Station Option Key Points:
Pros: If only Golden Valley Road station is built and Plymouth Station is not built, Golden Valley
residents will have easier access to light rail by using Golden Valley Road. Golden Valley Road
could potentially be improved to accommodate more car, bike, bus, and foot traffic to meet the
increased demand. This station has more potential to serve employees at nearby businesses,
particularly Courage Kenny's employees, as well as residents. Building only one station will
increase the travel time on the line, which could increase ridership.
Cons: However, building only Golden Valley Road station will reduce access to light rail for
many North Minneapolis residents. Plymouth Station has better access directly to Theodore
Wirth Park and its amenities. While the train would only stop once in this area, which could
increase travel time and therefore ridership, ridership potential is also lost in the Plymouth
station area.
Plymouth Station Option
Pros Cons
Better access to Wirth Park and its amenities Less accessible for many Golden Valley
residents
Park areas north of Golden Valley Road station Few parking options at this station
would be quieter and less impacted than if
Golden Valley Road station were built
Potential gains with Minneapolis Park and Not a great commuter station due to lack of
Recreation Board parking, which decreases ridership and
revenue
Fewer construction impacts on Golden Valley Public Safety jurisdiction issues need to be
Road station, road, and surroundings worked through
Less of an increase in traffic on Golden Valley Close to Penn Avenue station, which does not
Road than if that station were built maximize potential ridership numbers as well
as Golden Valley Road station could
Faster travel time for LRT with one station Little to no access for Courage Kenny
instead of two _ residents, visitors, and employees
Worse access for Golden Valley residents
_ Worse access for Golden Valley businesses
Less benefits to Golden Valley residents while
still experiencing all of the impacts of the light
rail
Plymouth Station Option Key Points:
Pros: Plymouth Station has better access directly to Theodore Wirth Park and its amenities. By
building only Plymouth Station, there is less impact to those living immediately adjacent to the
Golden Valley Road Station. There would likely be less traffic impacts on Golden Valley Road if
that station is not built.
Cons: However, if only Plymouth station is built and Golden Valley Road Station is not built,
Golden Valley residents will have more difficulty accessing light rail. Golden Valley Road station
has more potential to serve employees at nearby businesses, particularly Courage Kenny's
employees as well as residents. While the train would only stop once in this area, which could
increase travel time and therefore ridership, ridership potential is also lost in the Golden Valley
Road station area.
Sent: Tuesday, February 03, 2015 11:06 PM
To: Planning
Subject: Email the Planning Department [#205]
Name lames Allen Greene
Comments
have been mulling this email over ever since the Courage Center meeting concerning the LRT Blue
Line expansion. I came away feeling more frustration and feeling like the voices of the loudest, not
necessarily the majority, are being heard.
The meeting started off for me on a bad note when one of the folks who was introduced as a
member of the committee sitting behind me, took a cell phone call and proceeded to have the call
while sitting in the meeting. It made it difficult to hear the presentation and points made. Then after
that, this person sat there and basically mumbled and got the persons next to her (that is OBVIOUSLY
against the expansion), all worked up about things. I thought the folks on the committee were
supposed to be the ones presenting the information. My assessment of this particular person that was
on the committee was someone who was running some alternate agenda and NOT someone
representing the work being presented.
Then to cap it off were the comments made about "rif raf' from North Minneapolis, and "we pay
suburb taxes...." Not sure what that was about. However, the reality is that we are citizens of a metro
area and this transportation source will be a welcome thing to some of us and our neighborhood.
I am not originally from here and lived in Atlanta. Funny that the same arguments and feelings about
the Blue Line LRT were the same (for the lack of better terms) racially motivated feelings that prevented
the Marta train lines from expanding to what was at the time the 2 fastest growing counties in the
STATE of Georgia. Phrases like the trains will be crime burglaries etc.. ...News flash...that is NOT how
thieves tend to travel.
I wasn't able to be at the latest meeting. However, I feel to make sure my voice is heard, I am a
resident of Golden Valley and I support the LRT Blue Line expansion. It seems very clear that the work
that was presented shows a lot of ideas and actual validation of the "least intrusive"(at least that was
my impression). I also realize that as was stated, some of the items that have been presented, were
ideas. They weren't the final. In addition, I'm excited for the Golden Valley Road transit station and will
be a regular user!
Thanks!
Al Greene