CITY OF DAYTON

COUNCIL MEETING

September 5, 2017

A regular meeting of Dayton City Council held on Tuesday, September 5, 2017, 7:00 p.m. in the board meeting room of the Dayton Independent School Administration Building, Third & Clay Street, Dayton, KY.

Roll Call:

Mayor Boruske Present Member Haas Absent

Member Volter Present Member Lynn Present

Member Burns Present City Adm. Giffen Present

Member Neary Present City Att. Edge Present

Member Baker Absent

Mayor Boruske opened the meeting with a silent prayer and led the Pledge of Allegiance.

Guest Speakers:

Ashel Kruetzkamp with St. Elizabeth advised on how St. Elizabeth is helping with the heroin epidemic by educating physicians and schools, extending its clinic to help those struggling with addiction including pregnant moms, developed a hotline by partnering with county fiscal courts, pursued local and regional funding to help expecting moms and emergency room visits, and provides Narcan kits to patients, law enforcement and first responders. St. Elizabeth helps with syringe access programs in communities to help lower Hepatitis C infections in NKY. The average cost to treat someone with Hepatitis C is $80,000.00 and to treat someone for the lifetime of their HIV infections is $600,000.00 to $800,000.00.

Amanda Peters is with the Heroin Response Task Force, they have talked to schools, judicial departments and medical professionals, helped with addiction treatment centers in Kenton and Campbell County, offer transitional care for families, and support local enforcement to get drugs off the street. The Heroin Response Task Force meets the 2nd Tuesday of every month @9 pm at the Kenton County Detention Center.

Dr. Nora Savani is an infectious disease doctor with 35 years of experience. Dr. Savani has seen an increase in the last few years of untreated Hepatitis C. Dr. Savani advised that Hepatitis is 100% treatable and preventable and as a community, we need to work together. Member Volter questioned why primary care physicians are not testing kids for Hepatitis C. Dr. Savani explained that it cost $80,000.00 to treat someone with Hepatitis C. Member Neary would to like to work with St. Elizabeth to have a public meeting to talk about these issues in order to see what Dayton can do as a community. Ashley Kruetzkamp with St. Elizabeth agreed to set that up.

Audience:

Ken Henson, 119 4th Ave., would like to know what the city is doing about the flooding to his basement from the development on his street. City Adm. Giffen advised that last time he talked to Mr. Henson, he was talking to the developer and is not aware of what Mr. Henson and the developer discussed. This issue is between the developer and Mr. Henson, not the city. Mr. Henson said this is city owned land where the developer placed the road. Since then, Mr. Henson turned a claim into his home owners insurance and he will get a letter from them stating the problems. City Att. Edge advised at this point the city won’t take any action and Mr. Henson needs to work with the developer. Mr. Henson has received the developer’s phone number and email.

Marcia at Speers Court would like to know what the police are doing about the drug issue. Marcia has called the police several times about suspected drug use and feels the police are doing nothing about this. City Att. Edge stated the drug use needs to happen in front of the officer in order for the officer to take action. City Att. Edge said Marcia has a few options on how to handle; one is to file a police report that she has personally witnessed the drug use and take the report to county court. The second way is to be persistent and as a group make complaints to the landlord. Chief Halfhill said he has given others at Speers Court the drug task force number.

Mayor’s Report:

Motion by Member Burns, seconded by Member Neary to approve the minutes from July 18th and August 1, 2017, meetings as received. Motion carried- so ordered.

First Reading:

CITY OF DAYTON, KENTUCKY

ORDINANCE NO. 2017-#16

AN ORDINANCE PROVIDING FOR THE IMPOSITION, LEVY, COLLECTION AND APPORTIONMENT OF TAXES FOR THE CITY OF DAYTON, CAMPBELL COUNTY, KENTUCKY FOR THE FISCAL YEAR JULY 1, 2017 THROUGH JUNE 30, 2018.

NOW, THEREFORE BE IT ORDAINED BY THE CITY OF DAYTON, CAMPBELL COUNTY, KENTUCKY AS FOLLOWS:

Section I

There shall be imposed, levied and collected for the Fiscal Year July 1, 2017 through June 30, 2018, by the City of Dayton, Kentucky, the sum of .4950 under the General Chapter of said City, as amended, and also an Act concerning the assessment and valuation for taxation of the corporate franchise and intangible properties, as amended, on each $100.00 valuation of real and mixed property; .5009 on all automobile and watercraft personal property and .750 on all other personal property, choses in action, evidence of debt, and corporate franchises within said City as certified by the Property Valuation Administrator to Council, as assessed and returned for taxation to said City by the State Railroad Commission, the State Board of Valuation and Assessments and the Revenue Cabinet and certified by the State Auditor to the Council; if for any reason property has not been listed for taxation, then by the Mayor and Council; further, upon such property within the corporate limits of said City subject to taxation, except the deposits of Banks and Trust Companies, hereinafter mentioned.

Section II

Said levy and assessment of .4950 on real and mixed property; .5009 on all automobile and watercraft personal property and .750 on all other personal property on each $100.00 valuation as set out above, shall be imposed, collected, levied and apportioned to and for the following purposes, and in the following proportions:

Real Property:

For the current general and incidental expenses of said City the sum of .4450.

For the acquisition and maintenance of parks within the City, the sum of .0500.

Personal Property:

For the current general and incidental expenses of said City the sum of .750.

For the acquisition and maintenance of parks within the City, the sum of __________.

Automobiles and Watercraft:

For the current general and incidental expenses of said City the sum of .750.

Section III

There shall be imposed and collected for said City, as permitted under KRS Chapter 136 on the taxable fair cash value of bank deposits within the city as assessed, corrected, altered, certified and returned by the Revenue Cabinet or as assessed by the Mayor and Council, if for any reason said deposits have not been listed in any manner for taxation, sum equal to twenty-five thousandths of one percent (.025%) of those deposits. The levy called for in this Section shall be imposed, levied, collected and apportioned for payment of incidental expenses of the City. Those banks upon which the above tax is imposed may pay the sum due less 2% if paid by December 31, 2017 or the full amount by January 31, 2018. Thereafter the penalty and interest herein shall be imposed.

Section IV

All revenues received are hereby apportioned as in the preceding Sections and set apart and shall be apportioned and set apart exclusively for the several purposes therein mentioned. Any transfer of such funds are hereby prohibited.

Section V

The City Clerk/Treasurer shall make out the tax bills in accordance with the altered, corrected and returned assessment list in books provided for that purpose and said City Clerk/Treasurer shall show in the books of the City the total amount of taxes collectable for the year. Further, the City Clerk/Treasurer shall publish all notices of taxes due as required by law, if any, according to the requirements of KRS Chapter 424.

Section VI

The taxes hereby levied shall be due and payable on and after September 30, 2017 at the office of the City Clerk/Treasurer and shall be delinquent after November 8th, 2017, or as otherwise provided by Council by order, and the City Clerk/Treasurer shall thereafter proceed to attach to each bill a penalty of 10%. The City Clerk/Treasurer shall proceed to collect the delinquent taxes as provided by law until such time as the Council shall instruct the City Clerk/ Treasurer to refer all delinquent bills to the City Attorney for collection by taking legal action, if necessary. Interest at the rate of 12% per annum shall be charged on the account of such tax from November 9th, 2017, or as otherwise provided by Council by order, to the date of payment.

Section VII

This ordinance shall be signed by the Mayor, attested by the City Clerk, recorded, published, and shall be in effect at the earliest time provided by law.

PASSED by City Council of the City of Dayton, Campbell County, Kentucky assembled in regular session.

First Reading: 9/5/17

Second Reading: ___________________

_____________________________

MAYOR VIRGIL L. BORUSKE

ATTEST:

________________________

DONNA LEGER

CITY CLERK/TREASURER

CITY OF DAYTON, KENTUCKY

MUNICIPAL ORDER NO. 2017#10R

A MUNICIPAL ORDER of the City of Dayton, Kentucky authorizing the Mayor to EXECUTE AN AGREEMENT WITH grw eNGINEERS FOR THE DESIGN PHASE OF THE DAYTON SAFE ROUTES TO SCHOOL PROJECT..

WHEREAS, the City of Dayton Kentucky desires to employ the professional services of GRW Engineers for the design phase of the Dayton Safe Routes to School Project.

BE IT HEREBY ORDERED BY THE CITY OF DAYTON, KENTUCKY AS FOLLOWS:

Section I

That the Mayor may sign and execute all necessary documents to effectuate the attached and incorporated Agreement with GRW Engineers.

Section II

That this Order shall be maintained and indexed in the Official Order Book by the City Clerk/Treasurer.

_____________________________

MAYOR VIRGIL L. BORUSKE

ATTEST:

________________________

DONNA LEGER

CITY CLERK/TREASURER

Motion by Member Burns and seconded by Member Lynn to approve 2017-10R as read.

Comments:

Member Neary would like to know who is involved in the design phase. City Adm. Giffen said there will be a stake holder meeting where stakeholders on the avenue, council members, and some public can attend.

ROLL CALL:

Member Volter Aye Member Baker Absent

Member Burns Aye Member Haas Absent

Member Neary Aye Member Lynn Aye

Motion carried- so ordered.

CITY OF DAYTON, KENTUCKY

RESOLUTION NO. 2017-11R

A RESOLUTION TO ADOPT AGREEMENT WITH COMMONWEALTH OF KENTUCKY FOR DAYTON SAFE ROUTES TO SCHOOL PROJECT.

WHEREAS, the federal-aid highway program state administered funding was awarded the amount of $279,600;

WHEREAS, this amount will be authorized in phases as federal requirements are met for the Dayton Safe Routes to School Project; and

WHEREAS, City of Dayton does hereby authorize the Mayor to sign the above-mentioned Agreement, as well as any other necessary documents relating to the project.

BE IT HEREBY RESOLVED BY THE CITY OF DAYTON, KENTUCKY AS FOLLOWS:

Section I

That the Mayor may sign and execute all necessary documents to effectuate this project including but not limited to the attached and incorporated Agreement between the Commonwealth of Kentucky Transportation Cabinet and the City of Dayton (Contract #1800000753).

Section II

That this Resolution shall be maintained and indexed in the Official Resolution Book by the City Clerk/Treasurer.

So Adopted this 5^th Day of September, 2017.

_____________________________

MAYOR VIRGIL L. BORUSKE

ATTEST:

________________________

DONNA LEGER

CITY CLERK/TREASURER

Agreement Between

the Commonwealth of Kentucky Transportation Cabinet

And

City of Dayton

Dayton Safe Routes to School

Fed proj# 3002-263 & 4002-003/auth# 88788

CONTRACT# 1800000753/item# 06-03505

PROJECT AWARD: $279,600

AUTHORIZED PHASE/AMOUNT: DESIGN $87,000

This AGREEMENT is made and entered into by and between the Commonwealth of Kentucky, Transportation Cabinet, hereinafter the “CABINET” and the City of Dayton, hereinafter the “RECIPIENT”.

WITNESSETH:

WHEREAS, the Federal Highway Administration (FHWA), through the CABINET, has approved $87,000 in federal funding for the Dayton Safe Routes to School hereinafter the “PROJECT”, known as Federal Project Number 3002-263 and 4002-003 and the applicable Catalog of Federal Domestic Assistance number is 20.205-Highway Planning and Construction,

WHEREAS, the Federal-aid Highway Program is a State Administered Reimbursement Program and the RECIPIENT shall carry out this PROJECT in accordance with applicable Federal and State laws and regulations including all of Title 49 United States Code (USC), Title 23 United States Code (USC), 49 Code of Federal Regulations (CFR), 23 Code of Federal Regulations (CFR), and 2 CFR 200,

WHEREAS, the RECIPIENT must comply with applicable CABINET policies and procedures,

WHEREAS, Federal-aid projects are to serve a public purpose, the RECIPIENT is responsible for maintaining any real property or facilities improved pursuant to the PROJECT on a non-profit basis,

WHEREAS, the RECIPIENT shall refer to the Federal-Aid Project Development Guide for Local Public Agencies, hereinafter the “GUIDE”, and any future revisions for assistance in complying with this AGREEMENT,

WHEREAS, the RECIPIENT shall outline, undertake, and complete the work as described in the Scope of Work and Budget Summary (Attachment A) in accordance with the terms and conditions of this AGREEMENT, and consistent with the FHWA Contract Administration Manual, the CABINET/FHWA Stewardship Agreement, FHWA Form 1273 and all applicable State and Federal laws and regulations,

WHEREAS, the RECIPIENT shall demonstrate and shall maintain adequate staff, provide delivery systems, and sufficient accounting control to complete the PROJECT in accordance with all Federal and State laws and regulations addressed herein, and

WHEREAS, the RECIPIENT has agreed to provide a minimum of 20% matching funds on the TAP funded portion of the project and understands match is not required for SRTS funded portion and to accept responsibility for all administration, staffing, maintenance and operation costs for the Project as identified under this AGREEMENT;

NOW THEREFORE, in consideration of the mutual covenants and agreements herein set forth, the CABINET and the RECIPIENT hereby agree as follows:

Section 1. Scope of Work & Budget Summary. It is understood that the PROJECT will enhance the transportation system as further described in the Scope of Work and Budget Summary (Attachment A, attached hereto and made a part of this AGREEMENT). In the Scope of Work and Budget Summary, the RECIPIENT is to include detailed expectations, individual activities, estimates, and a schedule with milestones which the CABINET will use as checkpoints for the PROJECT. Further, the RECIPIENT is to define the roles, responsibilities, and authorities of the various entities and/or organizational units with regard to the project development and project delivery processes specific to this PROJECT in the Scope of Work and Budget Summary.

The RECIPIENT shall identify and provide a point of contact, including adequate contact information, for who shall be responsible to manage this PROJECT on the RECIPIENT’s behalf, submit the Scope of Work and Budget Summary to the CABINET, and be responsible for ensuring that the RECIPIENT adheres to all terms and conditions of this AGREEMENT. The RECIPIENT shall have final design plans, specifications, and a total estimate prepared by a Professional Engineer licensed to practice in the Commonwealth of Kentucky and approved by the CABINET prior to any construction. The Project Development Checklist (LPA-PDC) (Appendix 1 of the GUIDE) shall be submitted by the RECIPIENT and certified by the CABINET prior to construction.

Section 2. Effective Date of Agreement and Term of Eligible Reimbursement. It is understood the effective date of this AGREEMENT is the date the AGREEMENT is signed by the Secretary of the CABINET. After execution of the AGREEMENT, the CABINET will return a copy of the AGREEMENT to the RECIPIENT and issue a Notice to Proceed to begin work on a particular Phase of the PROJECT. Expenditures made prior to the effective date of the AGREEMENT and before the Notice to Proceed for the particular Phase covering the expenditure shall not be eligible for reimbursement. The Term of Eligible Reimbursement under this AGREEMENT shall end 6/30/2019 unless that Term is extended or amended by written agreement in accordance with the provisions of KRS 45A and CFR Part 200 as to period of performance. Any and all funding obligated for any Phase of this PROJECT defined by the original Scope of Work and authorized changes shall be available to reimburse the RECIPIENT for eligible work activities completed and costs incurred after the effective date of this AGREEMENT and the Notice to Proceed covering that Phase of the PROJECT. If the PROJECT cannot be completed during the Term of Eligible Reimbursement under this AGREEMENT, the RECIPIENT must provide justification why the PROJECT end date should be extended and identify the new Term of Eligible Reimbursement being requested.

Section 3. Funding Out Provision. The CABINET may terminate this contract if funds are not appropriated to the contracting agency or are not otherwise available for the purpose of making payments without incurring any obligation for payment after the date of termination, regardless of the terms of the contract. The CABINET shall provide the RECIPIENT thirty (30) calendar days written notice of termination of the contract.

This AGREEMENT is contingent upon the continued availability of appropriated Federal funding. If the funding appropriated for any Phase of the PROJECT becomes unavailable for any reason including the Kentucky General Assembly’s failure to appropriate the funding, by operation of law or as the result of a reduction in Federal funding, further reimbursement of PROJECT expenditures may be denied, the PROJECT may be cancelled, the timeline extended or the scope amended by the CABINET either in whole or in part without penalty. Denial of further reimbursement, PROJECT cancellation, extension or amendment because of an interruption in the appropriated funding is not a default or breach of this AGREEMENT by the CABINET nor may such denial, cancellation, extension or amendment give rise to any claim against the CABINET.

Section 4. Duration of Project. It is understood and agreed by the parties hereto that the Scope of Work shall be completed within the period set forth herein under Section 2. In the event the RECIPIENT fails to perform the Scope of Work within the time allotted, or at any time the RECIPIENT fails to maintain adequate staff, project delivery systems, or sufficient accounting control, the CABINET reserves the right to cancel further reimbursements related to the PROJECT under the AGREEMENT. In the event the CABINET denies further reimbursement under this section, the RECIPIENT shall refund all reimbursements made by the CABINET to the RECIPIENT under this AGREEMENT.

Section 5. Project Funding. It is expressly understood that Federal funding for this PROJECT is being provided by the Federal Highway Administration (FHWA) through the CABINET, specifically through the Catalog of Federal Domestic Assistance program number 20.205, Highway Planning and Construction. The Federal share of the total cost of this AGREEMENT shall not exceed $87,000 (the amount indicated on Attachment A) unless otherwise approved in writing by the CABINET with the concurrence of FHWA. If the RECIPIENT completes the PROJECT for less than this amount, the remaining funds may only be used by the RECIPIENT upon written agreement of the CABINET and may only be used for eligible PROJECT costs within the original PROJECT scope. Unless otherwise stated, the funding for the PROJECT shall be authorized in Phases and no reimbursement shall be considered for expenditures made before a Notice to Proceed for that Phase has been received. Reimbursement requests will be considered only for and up to the funding amount and type of work described in the approved Scope of Work and Budget and authorized by the Notice to Proceed for that Phase. The RECIPIENT has agreed to accept up to $87,000 in Federal reimbursement funding available as authorized in Phases for eligible PROJECT costs and shall be responsible for any costs in excess of $87,000 necessary for completion of the approved Scope of Work and any authorized changes to the PROJECT.

The RECIPIENT shall pay all PROJECT expenses and only upon meeting all terms and conditions of this AGREEMENT will be eligible to receive Federal reimbursement funding. All charges to the PROJECT shall be supported by properly executed invoices, contracts, vouchers, or monthly employment data evidencing in proper detail the nature and propriety of the charge. The CABINET or FHWA may require additional documentation at their discretion.

Section 6. Allowable Costs. Funding may be used for restoration, repair, construction and other activities eligible under the Surface Transportation Program (STP) as defined within 23 USC 133(b). Funding may also be used for passenger and freight rail transportation and port infrastructure projects eligible for assistance under subsection 23 USC 601(a)(8). The PROJECT costs referred to in this AGREEMENT shall be those costs included in the Scope of Work (Attachment A) and submitted to the CABINET on the Reimbursement Request Form. The RECIPIENT shall follow 2. CFR 200.

The RECIPIENT is responsible for adhering to all Federal and State laws and regulations listed in this AGREEMENT and all documents referred to herein. Reimbursement by the CABINET shall not be provided to the RECIPIENT if any requirements listed within 23 CFR 123 are not met. The CABINET shall reimburse the RECIPIENT upon request by the RECIPIENT providing proof of payment through appropriate documentation, which includes but is not limited to the following: work progress completed to date, expenses, cancelled checks, bank statements, verified affidavits, and employment reports. The RECIPIENT shall also certify the work shown on the invoice has been performed in accordance with the terms of this AGREEMENT and approved plans and specifications, the cost(s) shown are verified and are true and correct, and the request for reimbursement in no way represents any degree of duplication of payments that have or will be received from other funding sources. This formal letter must be signed by the designated project manager for the RECIPIENT in responsible charge.

Reimbursement by the CABINET is also subject to the provisions of Sections 33 and 36 hereof. The CABINET or FHWA reserves the right to require additional documentation.

Section 7. Reporting and Monitoring The RECIPIENT shall maintain and comply with all reporting requirements outlined by the CABINET and FHWA.

This Federal-aid project is subject to the reporting requirements contained in the Federal Funding Accountability and Transparency Act (Transparency Act) of 2006 and its associated amendments. The Transparency Act requires entities receiving Federal awards such as Federal contracts, sub-contracts, grants and sub-grants, to disclose certain information. This Agreement is subject to 31 USC 6101, 2 CFR 170, and 2 CFR Subtitle A, Chapter I and Part 25. The CABINET may require that the RECIPIENT provide a completed Federal Funding Accountability and Transparency Act form prior to execution of this Agreement.

The making, recording and reporting of any purchases shall be undertaken in accordance with the requirements of KRS 45A and applicable federal guidelines. All checks, invoices, contract records, vouchers, orders, purchasing documents, and monthly employment data pertaining in whole or in part to the PROJECT shall be clearly identified and readily accessible. The RECIPIENT shall permit the CABINET and/or FHWA to conduct periodic site visits to ascertain compliance with Federal and State laws and regulations. The RECIPIENT shall maintain financial records for three years after the latest of project completion, the execution of the Project Closure Form by KYTC, Final Acceptance and final reimbursement.

Section 8. Environmental Requirements. With the advice and assistance of the CABINET, the RECIPIENT shall ensure that all applicable environmental requirements are met including the preparation of appropriate environmental documentation prepared pursuant to the National Environmental Policy Act (NEPA) of 1969 addressing the social and environmental effects of the proposed PROJECT. Adequate resources must be devoted to ensuring that all applicable environmental reviews under NEPA are completed on an expeditious basis and that the shortest existing applicable process under NEPA shall be utilized. Compliance with NEPA, Section 4(f) of 49 USC 303, Section 106 of the National Historic Preservation Act, Sections 401 and 404 of the Clean Water Act, Section 7 of the Endangered Species Act, and any other applicable environmental laws and regulations must be received to permit funding authorization by the FHWA. Specifically, Phase I design activities will be allowed to proceed without a valid environmental document; however, the commencement of any Phase II design, right-of-way acquisition, utility relocation, or construction activities shall not be permitted prior to approval of the appropriate environmental document. Federal funds will be available for reimbursement of construction costs upon successful completion of design activities.

Section 9. Land Acquisition. Should the PROJECT require the acquisition of any interest in real property by the RECIPIENT; the RECIPIENT must comply with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (49CFR part 24), State Law and KYTC Division of Right of Way & Utilities Guidance Manual and the RECIPIENT does not have the authority to acquire property by eminent domain, the applicability of the Uniform Relocation Assistance (URA) and Real Property Acquisitions Policies Act, 49 CFR Part 24 (as amended) shall be limited to the following requirements: (1) Prior to making an offer for the property, the property owner shall be advised in writing that should negotiations fail to result in an amicable agreement, the RECIPIENT will not be able to acquire the property, and (2) The property owner shall be informed in writing of what the RECIPIENT believes to be the fair market value of the property based upon a fair market value appraisal approved by the CABINET, Division of Right-of-Way and Utilities prior to any offer by the RECIPIENT.

The RECIPIENT shall ensure that all real property acquisition, relocation assistance, and property management are completed in a fair, equitable and approved manner consistent with all State and Federal laws and regulations governing the acquisition of real property for public use using State or Federal highway funding. (1) The RECIPIENT shall either adopt in writing the CABINET’s written Policies and Procedures for Right of Way Acquisition and Relocation Assistance or present its own written Policies and Procedures for approval by the CABINET’s Division of Right of Way and Utilities and, if applicable, the FHWA. (2) The RECIPIENT shall conduct all appraisals and appraisal reviews using personnel meeting the CABINET’s minimum qualifications and listed on the CABINET’s pre-qualified appraiser and reviewer list. (3) If the RECIPIENT chooses to use an acquisition consultant on all or any portion of the PROJECT, the selection of the consultant shall be in accordance with the CABINET’s Division of Right of Way Guidance Manual. (4) All appraisals must be reviewed and approved by the CABINET’s Central Office review appraisers, failure to do so will result in the PROJECT being ineligible for reimbursement. (5) The RECIPIENT shall provide property management in accordance with approved procedures and be responsible for the abatement of any asbestos containing materials and removal of contaminated soils pursuant to applicable State and Federal laws and regulations. (6) The RECIPIENT shall provide the CABINET and, when applicable, FHWA, necessary assurance that all real property has been acquired and all displaced individuals, businesses, non-profit organizations and farms have been offered relocation assistance according to applicable State and Federal laws and regulations. (7) The RECIPIENT shall provide the CABINET, and when applicable, FHWA, necessary documentation for review and approval at various stages of the acquisition process, as described in the CABINET’s Right of Way Relocation Assistance Guidance Manual.

The CABINET shall: (1) Review all appraisal reports to ensure proper appraisal practice and procedures as well as compliance with State and Federal laws and regulations, and (2) Approve the final value conclusion through the Director, Division of Right of Way and Utilities.

The RECIPIENT shall provide to the CABINET the following information on each parcel of real property to be acquired:

A title opinion for the Property,
An accurate legal description and plat delineating the shape and location of the Property to be acquired, (In accordance to KYTC Division of Design Specifications)
The total area of the Property,
The Property interest to be acquired

Should the acquisition of real property result in the displacement of a tenant-occupant, such displacement shall be subject to the requirements of the URA, as set out in implementing regulations 49 CFR Part 24. A displaced tenant shall be eligible for moving expenses and any other relocation expenses for which they might qualify.

Section 10. Restrictive Easements. The RECIPIENT acknowledges that the CABINET will require the placement of a restrictive easement approved by and in favor of the CABINET in the chain of title of any real property acquired or improved pursuant to the PROJECT in favor of the CABINET. If the Owner of any real property acquired or improved pursuant to the PROJECT is different from the RECIPIENT, then the Owner shall sign and be made a party to this AGREEMENT and the Owner hereby acknowledges, covenants and consents to the placement of a restrictive easement for perpetual maintenance of the property acquired or improved pursuant to the PROJECT in the chain of title in favor of the CABINET prior to final reimbursement by the CABINET.

Section 11. Reimbursable Utility Relocations. When conducting a utility relocation, KRS 177.035 and KRS 179.265 determine the necessity of payment on behalf of the utility company in question. When law requires the reimbursement of the work, the cost of constructing the most economical type of facilities that satisfactorily meet the service requirements of the former facilities is negotiated, and an agreement is executed between the project development party and the utility company. Utility relocations shall be designed by the utility company and shown on the PROJECT’s survey and general plan sheets. The impacted utility company, with its regular construction or maintenance personnel, and/or with an approved contractor or subcontractor, will furnish all engineering, administration, labor, and materials to make and complete all necessary adjustments of its facilities to accommodate the PROJECT. The project development party shall inspect the relocation and document the proper installation of the facilities. If it is determined that the utility relocation work is best conducted within the PROJECT’s construction contract, the party responsible for the PROJECT construction will negotiate, execute the agreement, and inspect the relocation work, under direct advisement of the project development party. If a conflict of interest arises between the obligated party and a utility company, the unobligated party shall intercede to provide the utility coordination.

Section 12. Non-Reimbursable Utility Relocations. When KRS 179.265 indicates the work is not reimbursable, the utility company shall design their relocation plan on the PROJECT’s survey and general plan sheets. The project development party shall perform a review and approval of the relocation per agency policy and procedure. The project development party shall inspect the relocation and document the proper installation of the facilities. If a conflict of interest arises between the obligated party and a utility company, the unobligated party shall intercede to provide the utility coordination.

Section 13. General Railroad Coordination. The party obligated to execute the project development portion of the PROJECT shall be charged with any railroad coordination for the PROJECT, the execution of a contract with the impacted railroad and oversight of the execution. All work related to the PROJECT shall be done in accordance with the CABINET’s Standards, Specifications, Standard Drawings, and Utilities and Rails Manual. Correspondence pertaining to railroad coordination may impact both the project development and construction of the PROJECT. Therefore any and all correspondence regarding railroad coordination activities must be provided to both contracted parties. The CABINET’s representative in such matter is the Central Office Rails Coordinator.

The project development party shall provide the following with the bid package for the PROJECT: a railroad coordination note defining any and all special project terms and conditions due to the involvement of the railroad company and an estimate of the PROJECT expenses for railroad coordination.

Section 14. General Utility Coordination. The party obligated to execute the project development portion of the PROJECT shall be charged with the identification of utility facilities in conflict with the PROJECT, the execution of a remedy for said conflict, and oversight of the execution. The CABINET encourages dutiful consideration of utility avoidance via design considerations. When avoidance is impossible, uneconomical or otherwise invalid, utility relocation is an acceptable remedy for conflict. All work related to the PROJECT shall be done in accordance with the CABINET’s Standards, Specifications, Standard Drawings, and Utilities and Rails Manual. Correspondence pertaining to utility coordination may affect both the project development and construction of the PROJECT. Therefore any and all correspondence regarding utility coordination activities must be provided to both contracted parties. The CABINET’s representative on these matters is the District Office Utility Supervisor.

The project development party shall provide the following upon full execution of the utility relocation for the PROJECT: 3 sets of as-built plans for each utility company that completes facility relocation on the project prior to the construction letting, a utility impact note defining the utilities identified in the PROJECT, relocations that have been performed, incomplete relocations, and completion schedules for the incomplete work.

Section 15. Permits and Licenses. The RECIPIENT is responsible for obtaining all permits and licenses required to initiate, perform and complete all phases of the PROJECT in an appropriate and timely manner. Per the CABINET/FHWA Stewardship Agreement, the PROJECT may require more involvement from the FHWA.

Section 16. Design and Construction Standards. All Federal and State design and construction criteria for the type of work shall be followed, including but not limited to 23 CFR 625, the CABINET’s Highway Design Manual, the CABINET’s Standard Drawings, the CABINET’s Standard Specifications for Road and Bridge Construction, the CABINET’s Drainage Manual, the CABINET’s Structural Design Manual, the American Association of State Highway Transportation Officials’ (AASHTO) “Policy on Geometric Design of Highways and Streets”, and the Institute of Transportation Engineers’ (ITE) Manual on Uniform Traffic Control Devices (MUTCD). All work performed shall be in accordance with the most recent edition of the CABINET’s Standard Specifications for Road and Bridge Construction, as revised, and as provided in Subsection 105.01 of said Specifications. All materials furnished shall be in accordance with Subsection 106 of said Specifications to include all CABINET List of Approved Materials. These standards, specifications, and criteria are incorporated in this AGREEMENT by this reference.

Section 17. Consultant Selection. The RECIPIENT shall be responsible for all PROJECT design activities, which may be completed either by the RECIPIENT’s staff or a consultant. If the RECIPIENT selects to perform the design work with internal staff, these costs will be eligible for an in-kind match if pre-approved by the CABINET Administering Office. If the RECIPIENT selects to perform the work through a consultant, the RECIPIENT, with the oversight and approval of the CABINET, shall be responsible for the advertisement, selection, and contracting for consultant engineering and related services for the PROJECT in compliance with the Federal requirements set forth in the Brooks Act, Public Law 92-582, the FHWA policy outlined in 23 CFR 172, CABINET policies and procedures, the CABINET procurement policies, and the Kentucky Model Procurement Code as defined within KRS 45A.730-750. This requires the use of a Qualifications Based Selection (QBS) process for the selection of all engineering and related services. By complying with KRS 45A.730-750, the required Federal provisions of the Brooks Act will be satisfied. All plans and specifications must be prepared by a professional engineer or architect licensed in the Commonwealth of Kentucky and prequalified by the CABINET to practice the type of work to be done. If no CABINET prequalification category exists, a consultant must receive approval by the CABINET prior to working on the PROJECT. The RECIPIENT may choose to enter into a letter agreement with a consultant that has a statewide contract with the CABINET instead of going through the procurement process itself.

Section 18. Contractor Procurement. The RECIPIENT shall be responsible for all PROJECT construction activities, which may be completed either by the RECIPIENT’s staff or by a contractor. If the RECIPIENT intends to use contractor services, the RECIPIENT shall be responsible for the advertisement, opening of bids, selection, and contracting for contractor services for the PROJECT, with the concurrence of the CABINET, in accordance with the Federal contract provisions listed in FHWA Form 1273 which take precedence over the Kentucky Model Procurement Code provisions KRS 45A.343 and KRS 45A.345-460, as well as KRS 424, 23 CFR 635, 23 USC 112. Bid proposals must be accepted for a minimum of 21 days from the date of the first advertisement for award. Contractors and subcontractors must be pre-qualified by the CABINET for the type of work prior to being awarded a contract. If no CABINET prequalification category exists, a contractor or subcontractor must receive the approval of the CABINET prior to working on the PROJECT.

The RECIPIENT shall prepare an independent engineer’s estimate in accordance with 23 CFR 630, Subpart B to compare against the contractors’ bids for reasonableness. The RECIPIENT shall thoroughly review all bids and obtain concurrence from the CABINET prior to the award or the rejection of any contract of bids for work or materials to be used on this PROJECT. Factors that should be considered and documented in reviewing submitted bids are: a comparison of the bids against the engineer’s estimate, the number of bids submitted, the distribution or range of bids received, the geographic location of bidders, any potential savings from readvertising the PROJECT, a comparison of bids against other recent bids for the same item or service, the urgency of the PROJECT, the number of times previously advertised or contracted for, the current market conditions, a comparison of unit bids versus engineer’s estimate unit bids, the funding available. Determining whether the bids received are adequate involves considering any critical safety improvements, emergency repair or replacement of damaged facilities, the opening of otherwise completed facilities to traffic, furthering a phased construction schedule, or any other factors deemed important by the CABINET or FHWA. Specific Federal requirements defined within 23 CFR 635 require that the award be made to the lowest responsive bidder meeting the criteria of responsibility established by the CABINET.

Section 19. Contract Administration and Inspection It is understood that the RECIPIENT shall be responsible for all aspects of administration, testing, and inspections to ensure the materials and construction meet CABINET specifications and Federal quality assurance specifications referenced in 23 CFR 637 and 23 CFR 635.105 (a) or (b). This includes providing daily on-site inspection of contractor work activities and prompt processing all of the paperwork associated with the construction contract, including any change orders. The RECIPIENT must receive prior written CABINET approval for all change orders, but such approval shall not increase the funding obligated to the RECIPIENT under this AGREEMENT or otherwise.

The RECIPIENT shall use the most recent edition of the CABINET’s Regional Highway and Bridge Construction Inspection advertisement for construction inspectors, or must receive CABINET approval to submit an Alternative Construction Inspection Plan. If the RECIPIENT does not have adequate staff to perform this work, the RECIPIENT may hire a consultant or enter into an agreement with another governmental agency to provide these services. The CABINET must review and approve the Construction Engineering and Inspection agreement and the agreement with the service provider and a copy of both in the PROJECT file as required by FHWA. If the RECIPIENT elects to hire a consultant, the RECIPIENT must ensure that the consultant staff is competent in construction inspection and performs all work under the direct supervision of a registered professional engineer or architect licensed in the Commonwealth of Kentucky. The use of a consultant does not relieve the RECIPIENT of ultimate responsibility for the proper administration and inspection of the construction. If a consultant is used to provide inspection services, the RECIPIENT must also provide an appropriately certified and licensed RECIPIENT employee to be in responsible charge of the PROJECT and oversee the inspections.

When an Alternative Construction Inspection Plan is submitted, the RECIPIENT must ensure sufficient quantity and quality are delivered and that proper inspection documentation is maintained. The Alternative Construction Inspection Plan must be performed under the supervision of a Professional Engineer licensed in the State of Kentucky, include credentials and experience of inspectors, indicate testing consistent with the CABINET’s Sampling Manual, detail the frequency, who will be responsible, and what will be included in reports, and coordinate with the CABINET’s construction inspector.

The CABINET and/or the FHWA may conduct an announced or unannounced field review of the PROJECT at any time. This field review is intended to verify conformance with all laws, regulations, and policies applicable to the Federal-aid Highway Program and provide assistance to the RECIPIENT where necessary.

Section 20. Davis-Bacon and Related Acts. The 1931 Davis-Bacon Act (prevailing Federal wage) requires the RECIPIENT of all Federal-aid construction projects to comply with contractor and subcontractor payment rates and fringe benefits as determined by the Secretary of Labor for corresponding classes of laborers and mechanics engaged on similar construction, alteration, and/or repair of public buildings or public works, painting, or decorating projects in the locality. Specific wage rates shall be included in the construction contract between the RECIPIENT and the contractor, which must also include a contract provision that overrides the general applicability provisions in Form FHWA-1273, Sections IV and V.

Section 21. The Contract Work Hours and Safety Standards Act. During the construction of the PROJECT, the RECIPIENT shall comply with the Contract Work Hours and Safety Standards Act which contains weekly (after 40 hours) overtime pay requirements and applies to most Federal contracts which may require or involve the employment of laborers and mechanics, including watchmen and guards. Section 107 of the Act provides health and safety standards on covered construction work which are administered by the Occupational Safety and Health Administration (OSHA). The RECIPIENT shall refer to the Contract Work Hours and Safety Standards Act for the requirements under this provision.

Section 22. The Copeland “Anti-Kickback” Act. The RECIPIENT shall comply with the “Anti-Kickback” section of the Copeland Act, which makes it punishable to induce any person working on a Federally funded or assisted construction project to “give up any part of the compensation to which he is entitled under his contract of employment.” The RECIPIENT shall refer to the Copeland Act for the requirements under this provision.

Section 23. Title VI – Civil Rights Act of 1964. The RECIPIENT shall comply with all requirements imposed by Title VI of the Civil Rights Act of 1964 (78 Stat. 252), the Regulations of the United States Department of Transportation issued thereunder (CFR Title 49, Subtitle A, Part 21), and the assurance by the RECIPIENT pursuant thereto, including prohibition regarding discrimination.

Section 24. Equal Employment Opportunity (Equal Opportunity Act of 1972). In connection with the execution of this AGREEMENT, the RECIPIENT shall take affirmative action and not discriminate against any employee or applicant for employment to ensure that applicants are employed, and that employees are fairly treated during their employment. Such actions shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection of training including apprenticeship. The RECIPIENT shall incorporate the foregoing requirements of this paragraph in all subcontracts for services covered by this AGREEMENT.

Section 25. Non Discrimination (Executive Order 11246). Discrimination (because of race, religion, color, national origin, sex, sexual orientation, gender identity, age, or disability) is prohibited. This section applies only to contracts utilizing federal funds, in whole or in part. During the performance of this contract, the RECIPIENT agrees as follows:

The RECIPIENT will not discriminate against any employee, applicant, contractor or consultant for employment because of race, religion, color, national origin, sex, sexual orientation, gender identity, or age. The RECIPIENT further agrees to comply with the provisions of the Americans with Disabilities Act (ADA), Public Law 101-336, and applicable federal regulations relating thereto prohibiting discrimination against otherwise qualified disabled individuals under any program or activity. The RECIPIENT agrees to provide, upon request, needed reasonable accommodations. The RECIPIENT will take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, religion, color, national origin, sex, sexual orientation, gender identity, age or disability. Such action shall include, but not be limited to the following; employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensations; and selection for training, including apprenticeship. The RECIPIENT agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this non-discrimination clause.
The RECIPIENT will, in all solicitations or advertisements for work placed by or on behalf of the RECIPIENT; state that all qualified applicants will receive consideration for employment without regard to race, religion, color, national origin, sex, sexual orientation, gender identity, age or disability.
The RECIPIENT will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice advising the said labor union or workers’ representative of the RECIPIENT’s commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. The RECIPIENT will take such action with respect to any contract, subcontract or purchase order as the CABINET or FHWA may direct as a means of enforcing such provisions, including sanctions for noncompliance.
The RECIPIENT will comply with all provisions of Executive Order No. 11246 of September 24, 1965 as amended, and of the rules, regulations and relevant orders of the Secretary of Labor.
The RECIPIENT will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, as amended, and by the rules, regulations and orders of the Secretary of Labor, or pursuant thereto, and will permit access to the PROJECT books, records and accounts by the CABINET or FHWA and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations and orders.
In the event of the RECIPIENT’s noncompliance with the nondiscrimination clauses of this Agreement or with any of the said rules, regulations or orders, this Agreement may be cancelled, terminated or suspended in whole or in part and the RECIPIENT may be declared ineligible for further government contracts or federally-assisted construction contracts in accordance with procedures authorized in Executive Order No. 11246 of September 24, 1965, as amended, and such other sanctions may be imposed and remedies invoked as provided in or as otherwise provided by law.
The RECIPIENT will include the provisions of paragraphs (1) through (7) of section 202 of Executive Order 11246 in every contract, subcontract or purchase order unless exempted by rules, regulations or orders of the Secretary of Labor, issued pursuant to section 204 of Executive Order No.11246 of September 24, 1965, as amended, so that such provisions will be binding upon each contractor, subcontractor, consultant or vendor. The RECIPIENT will take such action with respect to any contract, subcontract or purchase order as the CABINET or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance; provided, however, that in the event a RECIPIENT becomes involved in, or is threatened with, litigation with a contractor, subcontractor or vendor as a result of such direction by the CABINET or FHWA, the RECIPIENT may request the United States to enter into such litigation to protect the interests of the United States.

Section 26. Disadvantaged Business Enterprise (DBE) Requirements. An applicant DBE firm must be given consideration for participation in the PROJECT and a DBE goal shall be set by the CABINET for work on the PROJECT. The CABINET shall review and approve the DBE goal based on CABINET processes and procedures. Any participating DBE firm must be certified as a DBE firm and be prequalified with the CABINET. The RECIPIENT agrees to comply with the DBE Requirements contained within 23 CFR 635 Subpart A, Section 1101(b) of Public Law 109-59, Chapter 3 of Title 49 USC and 49 CFR Part 26 to ensure equal opportunity to socially and economically disadvantaged small businesses.

Assurance. The contractor, subrecipient or subcontractor shall not discriminate in the performance of this AGREEMENT. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of contracts assisted by the United States Department of Transportation. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other allowable remedy the CABINET deems appropriate. Each contract signed with a contractor (and each subcontract the prime contractor signs with a subcontractor) must include this provision.

DBE Prompt Payment Requirement. The contract between the RECIPIENT and the contractor shall include a contract provision that requires the contractor to comply with 49 CFR 26.29 and pay its subcontractors within then (10) working days from receipt of each payment RECIPIENT makes to the contractor. The RECIPIENT shall prohibit the contractor from withholding retainage on any subcontract on this PROJECT to ensure prompt and full payment from the contractor to the subcontractor within 30 days after the subcontractor’s work is satisfactorily completed.

Section 27. Prohibited Interest. No member, officer, or employee of the CABINET or the RECIPIENT during his tenure or for one (1) year thereafter shall have any financial interest, direct or indirect, in this AGREEMENT or the proceeds thereof as identified in KRS 45A.340. The CABINET and the RECIPIENT shall comply with the requirements of the Executive Branch Code of Ethics KRS Chapter 11A. No member, officer, or employee of the CABINET or RECIPIENT shall collude or lobby on behalf of this PROJECT without penalty, including but not limited to suspension or debarment.

Section 28. Covenant Against Contingent Fees. The RECIPIENT warrants that no person, selling agency or other organization has been employed or retained to solicit or secure this AGREEMENT upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee. For breach or violation of this warranty, the CABINET shall have the right to annul this AGREEMENT without liability or, in its discretion, to deduct from the compensation, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee.

Section 29. Interest of Members of or Delegates to Congress. No funding has been or will be paid to a member or delegate to the Congress of the United States in connection with the awarding of this Federal contract. Nor shall any member of or delegate to the Congress of the United States receive any benefit arising out of this Federal contract.

Section 30. Standards for the Treatment of Historic Properties. Projects including but not limited to Historic preservation, impacting properties on or eligible for the Nation register of Historic Places shall meet applicable Secretary of the Interior’s Standards for the Treatment of Historic Properties, the Standards and Guidelines for Archeology and Historic Preservation, and all other applicable federal or state historic property requirements prior to the payment of any monies under this AGREEMENT.

Section 31. Maintenance as Public Facilities. The RECIPIENT agrees to maintain the facilities in an acceptable condition and for a public purpose in accordance with the Maintenance Plan (Attachment B, attached hereto and made a part of this AGREEMENT). In addition, any applicable landscaping in any project shall be maintained in an acceptable condition to include mowing, trimming, or other maintenance. In the event that the property is not maintained as a public facility, the RECIPIENT shall reimburse the FHWA for all proceeds provided for in this PROJECT including any applicable interest, unless such change in use is approved in writing by the CABINET and FHWA, if applicable.

Section 32. Americans with Disabilities Act. The RECIPIENT agrees to comply with the provisions of the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973, P.L. 93-112, and other applicable Federal regulations relating hereto, issued by the U.S. Department of Transportation. ADA prohibits discrimination against otherwise qualified individuals under any program or activity receiving Federal financial assistance covered by this AGREEMENT and imposes requirements that affect the design, construction, and maintenance of all transportation projects, to provide access to all facilities.

Section 33. Applicable Laws. This AGREEMENT shall be in accordance with the laws of the United States Department of Transportation, Federal Highway Administration, the United States of America, and the Commonwealth of Kentucky.

Section 34. Hold Harmless Clause. To the extent permitted by law, the RECIPIENT shall indemnify and hold harmless the FHWA and the CABINET and all of its officers, agents, and employees from all suits, actions, or claims of any character arising from any injuries, payments or damages received or claimed by any person, persons, or property resulting from implementation of any phase of the PROJECT or occurring on or near the PROJECT site.

Section 35. Contract Completion. The RECIPIENT is responsible for ensuring that all PROJECT construction activities have been completed and is responsible for providing all of the necessary paperwork as required by the construction contract. This involves conducting a pre-audit of all contract items and associated paperwork. When complete, the RECIPIENT’s project engineer in responsible charge of the PROJECT shall notify the CABINET the PROJECT is ready for final inspection. The RECIPIENT will conduct, document and submit to the CABINET a field inspection to verify completion of the work in substantial conformance with the AGREEMENT. The RECIPENT’s project manager shall certify the PROJECT was constructed in accordance with the plans and specifications and that the contractor has paid all suppliers and subcontractors in full.

In accordance with 2 CFR 200, the RECIPIENT shall maintain all PROJECT records for three (3) years after final payment.

Section 36. Audit and Inspection. The RECIPIENT, contractor and any subcontractors shall permit the CABINET, the Comptroller General of the United States and the Secretary of the United States Department of Transportation, or their authorized representatives, to inspect and approve all phases of the PROJECT and all relevant PROJECT data and records, including any audit(s) of the RECIPIENT pertaining to the PROJECT.

The RECIPIENT hereby acknowledges its duty to the CABINET to determine whether it is subject to the Single Audit Act of 1984, P.L. 98-502, and the Single Audit Act Amendments of 1996, P.L. 104-156. The RECIPIENT shall follow 2 CFR 200. In Accordance with 2 CFR 200 Subpart F, If the RECIPIENT has expended more than $750,000 in Federal funding from all sources in the RECIPIENT’s fiscal year, the RECIPIENT shall provide the CABINET copies of their 2 CFR 200 Subpart F audit reports within 9 months of their fiscal year end.

The RECIPIENT hereby acknowledges it is responsible to inform any entity it intends to hire or use as a contractor, as defined in KRS 45A.030(9), that the contracting agency, the Finance and Administration Cabinet, the Auditor of Public Accounts, and the Legislative Research Commission, or their duly authorized representatives, shall have access to any of the contractor’s books, documents, papers, records, or other evidence, which are directly pertinent to this AGREEMENT for the purpose of financial audit or program review. Furthermore, any of the contractor’s books, documents, papers, records or other evidence provided to the contracting agency, the Finance and Administration Cabinet, the Auditor of Public Accounts, or the Legislative Research Commission which are directly pertinent to the AGREEMENT shall be subject to public disclosure regardless of the proprietary nature of the information, unless specific information is identified and exempted and agreed to by the Secretary of the Finance and Administration Cabinet as meeting the provisions of KRS 61.878(1)(c) prior to the execution of the AGREEMENT. The Secretary of the Finance and Administration Cabinet shall not restrict the public release of any information, which would otherwise be subject to public release if a State government agency were providing the service.

Section 37. Campaign Finance. The RECIPIENT shall certify that the contractor swears under the penalty of perjury, as provided by KRS 523.020, that neither he/she nor the entity which he/she represents has knowingly violated any provisions of the campaign finance laws of the Commonwealth, and that the award of a contract to him/her or the entity which he/she represents will not violate any provisions of the campaign finance laws of the Commonwealth.

Section 38. Violations. Pursuant to KRS 45A.485, the RECIPIENT shall certify that all contractors shall reveal to the CABINET any final determination of a violation within the previous five (5) year period pursuant to KRS Chapter 139, 136, 141, 337, 338, 341 and 342. These statutes relate to the State sales and use tax, corporate and utility tax, income tax, wages and hours laws, occupational safety and health law, unemployment compensation law, and workers compensation insurance law, respectively.

The RECIPIENT shall certify that all contractors agree to be in continuous compliance with the provisions of KRS Chapters 136, 139, 141, 337, 338, 341 and 342 for the duration of this AGREEMENT. Failure to reveal a final determination of a violation of the referenced statutes or to comply with these statutes for the duration of this AGREEMENT shall be grounds for the cancellation of the contract or subcontract and disqualification of the contractor from eligibility for future State contracts for a period of two (2) years.

Section 39. Personal Service Contracts and Memoranda of Agreement. If this AGREEMENT comes under the purview of KRS 45A.690 – 45A.725, payments on personal service contracts and memoranda of agreement shall not be authorized for services rendered after disapproval of the Government Contract Review Committee unless the decision of the committee is overridden by the Secretary of Finance and Administration Cabinet or agency head, if the agency has been granted delegation authority.

Section 40. Disputes. Any dispute concerning a question of fact in connection with the work, not disposed of by agreement between the RECIPIENT and the CABINET, shall be referred to the Secretary of the Transportation Cabinet of the Commonwealth of Kentucky, or his duly authorized representative, whose decision shall be final. Regulations concerning any claims to be filed by a contractor are referenced in 23 CFR 635.124.

Section 41. Agreement Change. Any proposed change to the Scope of Work or time extension to this AGREEMENT shall comply with 23 CFR 635.120 and 635.121 and shall be evidenced in writing at the mutual consent of the RECIPIENT and the CABINET.

Section 42. Termination. The CABINET may cancel all reimbursements under this AGREEMENT at any time deemed to be in the best interest of the CABINET by giving thirty (30) calendar days written notice of such cancellation to the RECIPIENT. If reimbursement under this AGREEMENT is canceled under this section by reason other than violation of this AGREEMENT or any applicable law by the RECIPIENT, its agents, employees and contractors, the CABINET shall reimburse the RECIPIENT according to the terms hereof for all expenses incurred under this AGREEMENT to the date of such cancellation of reimbursement. The RECIPIENT may seek to cancel its obligations under this AGREEMENT at any time deemed to be in the best interest of the RECIPIENT by giving thirty (30) calendar days written notice of such request to the CABINET. If the CABINET agrees to allow the RECIPIENT to cancel the PROJECT or cancel its obligations under this AGREEMENT, the RECIPIENT shall reimburse the CABINET for all Federal funding reimbursements made under this AGREEMENT.

Section 43. Resolution. The RECIPIENT shall pass a resolution authorizing the Mayor, City of Dayton to sign this AGREEMENT on behalf of the RECIPIENT. An acceptable Resolution shall contain the Project name, description, amount of funds being provided and an acknowledgement that the RECIPIENT agrees to ratify and adopt all statements, representations, warranties, covenants, and agreements contained in the AGREEMENT. Furthermore, by accepting the funds the RECIPIENT agrees to all terms and conditions stated in the AGREEMENT. A copy of the resolution shall be attached to the AGREEMENT (Attachment C) and returned to the CABINET prior to full execution of this PROJECT.

IN TESTIMONY WHEREOF, the parties have hereto caused this AGREEMENT to be executed upon signature by their proper officers and representatives.

KENTUCKY TRANSPORTATION CABINET

Approved as to form and legality: Commonwealth of Kentucky

___________________________________ ___________________________________

Attorney Greg Thomas, Secretary

Transportation Cabinet Transportation Cabinet

Date: ______________________________ Date: ______________________________

LOCAL PUBLIC AGENCY

Approved as to form and legality: City of Dayton

___________________________________ ___________________________________

Attorney Mayor

City of Dayton

Date: ______________________________ Date: ______________________________

ATTACHMENT A

SCOPE OF WORK AND BUDGET SUMMARY

Scope of Work:

All federally-funded projects are set up in phases (design, ROW, utilities, construction). No work can begin on any phase of a project until the CABINET provides a written notice to proceed for that phase. Funding for this project will be programmed with FHWA as each phase is approved. Effective December 26, 2014, FHWA requires a project end date for each federal project phase programmed. As each phase of the project is programmed with FHWA a supplemental agreement will be sent to the project sponsor to add the funding and adjust the project end date. Any expenditure incurred by the project sponsor after the end date will not be eligible for reimbursement. If the project sponsor requires an extension, they must notify the Administering Office thirty (30) days before the project end date.

DUNS# 188593644

Construct new sidewalks and roadway markings along Dayton Pike and 7^th St to Dayton Pike and Chateau Dr and along Belmont Rd to Ervin Terrace and widen portions of sidewalks along 6^th Ave in intervals along two blocks in Dayton.

Original MOA

Phase of Work	Federal Funds	Match	Total Estimate per phase	FAIN#	Federal Award Date
Design (programmed SRTS)	$87,000	$0	$87,000	213002263LU2E	04/04/2014

Future Phase Estimates

Phase of Work	Federal Funds	Match	Total Estimate per phase
Right-of-Way (Estimated *SRTS*)	$50,000	$0	$50,000
Archeology (Estimated)	$0	$0	$0
Utilities (Estimated *SRTS*)	$24,200	$0	$24,200
Construction (Estimated *TAP*)	$118,400	$29,600	$148,000
Est Total Future Phases	$192,600	$29,600	$222,200
Est Completed Project Total	$279,600	$29,600	$309,200

ATTACHMENT B

ATTACH A RESOLUTION HERE

A sample resolution is included here

SAMPLE RESOLUTION

Whereas, the federal-aid highway program state administered funding was awarded the amount of $279,600, and

Whereas this amount will be authorized in phases as federal requirements are met for the Dayton Safe Routes to School Project, and

Whereas, City of Dayton does hereby authorize Mayor _______________________ to sign the above mentioned Agreement, as well as any other necessary documents relating to the project.

The vote taken on said Resolution, the result being as follows:

Motion Carried – Yes No (Please circle one)

Signature _____________________________________________ Date _______________

Title _______________________________________________________________________

Witness ____________________________________________________________________

ATTACHMENT C

PERSON IN RESPONSIBLE CHARGE

Upon federal-aid project delegation to the RECIPIENT by the CABINET, the undersigned hereby certifies the following, to the best of his or her knowledge and belief, on behalf of the RECIPIENT:

Pursuant to 23 CFR 635.105(c) (4), the RECIPIENT acting as a subrecipient of federal transportation funds must provide an employee of that agency, who is available full time, to be in responsible charge of the PROJECT. The individual in responsible charge of the PROJECT is held accountable for ensuring that all applicable Federal and State regulations are followed on the PROJECT. This person will have the authority and resources to manage the PROJECT and will be the primary point of contact with the CABINET. This person may be the project engineer provided that the project engineer is a full-time employee of the RECIPIENT. If the project engineer is a consultant, the person in responsible charge must be a full-time employee of the RECIPIENT.

The undersigned and the designated RECIPIENT’s person in responsible charge of this PROJECT has read and understands the contract administration and inspection responsibilities described in the CABINET’s Federal-Aid Highway Program Project Development Guide for Local Public Agencies (LPA Guide).

The undersigned will carry out this PROJECT in accordance with the applicable Federal and State laws and associated regulations identified in the LPA Guide.

The undersigned will enforce compliance with the above-mentioned laws, regulations, policies, and guidelines by its consultants, contractors, and subcontractors.

The undersigned certifies the designated person in responsible charge will:

Have the ability to visit the PROJECT or attend meetings related to the PROJECT as needed.
Be responsible for ensuring that the PROJECT is delivered on time in accordance with established milestones and the terms of the contract between the RECIPIENT and the CABINET.

In accordance with the requirements outlined above, RECIPIENT has selected the following individual as the person in responsible charge for the PROJECT:

Name:

Position with RECIPIENT:

E-mail:

Phone:

Signature:

Should the RECIPIENT require a change to the Person in Responsible Charge, they will notify the CABINET, designate a new Person in Responsible Charge, and resubmit the Attachment C within 7 days of the change. The new Attachment C will be incorporated into this Agreement upon approval by the CABINET.

______________________________________
Mayor/CJE Date

ATTACHMENT D

MAINTENANCE PLAN

The project sponsor will maintain the project for public use.

If a useful life date has been provided through consultation with FHWA it must be identified and included in the Maintenance Agreement.

ATTACHMENT E

PAYMENT REQUEST

Project Type: CMAQ SRTS NSB TE TAP

Vendor Name:	City of Dayton	Vendor Invoice No:	88788-001
Vendor Address:		Date of Request:
		Billing Period Service From – Service To (MM/DD/YY):	Time covered by this request, not the entire project
		Billing Period Service From – Service To (MM/DD/YY):	Time covered by this request, not the entire project
Contact Name:		Contract Number:	*PO2-628-18753**
Contact Title:		Authorization Number:	88788, 06-03505
Telephone Number:		Federal Numbers:	20.205 (CFDA), 4002-003

Budget Line Item	Contract (Federal) Amount	Contract (Federal) Amount Paid To Date	Current Request	Contract (Federal) Amount Remaining
Design (Total $87,000)	$87,000.00	$0.00	$0.00	$0.00


Right of Way (Total $50,000)	$50,000.00	$0.00	$0.00	$0.00

Utilities (Total $24,200)	$24,200.00	$0.00	$0.00	$0.00


Construction (Total $148,000)	$118,400.00	$0.00	$0.00	$0.00




SubTOTALS (80% of Total Paid by the LPA)			$0.00
20% Required Match (20% of Total Paid by the LPA)			$0.00
GRAND TOTAL Paid by LPA			$0.00

Motion by Member Volter, seconded by Member Neary to approve 2017-11R as read.

Comments:

Member Neary would like to know the time frame and wanted to make sure this is classified as a park. City Adm. Giffen advised there is no time frame yet because the city is waiting on legal items to be finished and this park was submitted to the National Park Service as a passive park. Council can look into this later for playground equipment. Member Neary requested to see the plans.

ROLL CALL:

Member Burns Aye Member Haas Absent

Member Neary Aye Member Lynn Aye

Member Baker Absent Member Lynn Aye

Motion carried – so carried.

CITY OF DAYTON, KENTUCKY

RESOLUTION NO. 2017-12R

A RESOLUTION BY THE CITY OF DAYTON, KENTUCKY, TO SUPPORT TRANSPORTATION ALTERNATIVE PROGRAM FUNDING APPLICATION

WHEREAS, increasing usage of public transportation serve the mobility needs of people while minimizing transportation related fuel consumption, mitigating traffic congestion and reducing air pollution; and

WHEREAS, MAP-21, the Moving Ahead for Progress in the 21st Century Act (PI. 112-141), was signed into law by President Obama on July 6, 2012, to address growing concerns about air quality, open space, and traffic congestion. The Transportation Alternative Program strengthens the cultural, aesthetic, and environmental aspects of the Nation’s intermodal transportation system; and

WHEREAS, this support is consistent with Kentucky Transportation Cabinet policies and the MAP-21 policies supporting alternative means of transportation.

NOW, THEREFORE BE IT RESOLVED, BY THE CITY OF DAYTON, KENTUCKY hold in reserve twenty percent (20%) of the proposed project costs for the purpose of matching the Transportation Alternative Program grant; and

NOW, THEREFORE BE IT FURTHER RESOLVED, BY THE CITY OF DAYTON, KENTUCKY THAT the City of Dayton, Kentucky supports the Transportation Alternative Program grant request and construction of the DAYTON KENTUCKY TANK ROUTE 12 IMPORVEMENT PROJECT as submitted by the City of Dayton, Kentucky

So Adopted this 5^th Day of September, 2017.

_____________________________

MAYOR VIRGIL L. BORUSKE

ATTEST:

________________________

DONNA LEGER

CITY CLERK/TREASURER

Motion by Member Neary, seconded by Member Volter to approve 2017-12R as read.

ROLL CALL:

Member Neary Aye Member Lynn Aye

Member Baker Absent Member Volter Aye

Member Haas Absent Member Burns Aye

Motion carried- so ordered.

CITY OF DAYTON, KENTUCKY

RESOLUTION NO. 2017-13R

A RESOLUTION OF THE CITY OF DAYTON, KENTUCKY APPROVING THE SECOND AMENDMENT TO THE AMENDED AND RESTATED DEVELOPMENT AGREEMENT.

WHEREAS, DCI and the City entered into an Amended and Restated Development Agreement dated June 1, 2009 (the “Development Agreement”), relating to the development of a mixed-use development project (referred to as Manhattan Harbour) along the City’s riverfront; and

WHEREAS, DCI and the City entered into the First Amendment to the Amended and Restated Development Agreement dated December 1, 2012 (the “First Amendment”) as a result of changing circumstances that necessitated amendment of the Development Agreement; and

WHEREAS, upon review of the Agreement by the City, the City desires certain modifications of the Development Agreement; and

WHEREAS, similarly due to the circumstances surrounding the development, DCI is unable to complete development of the Project without the support and cooperation of The Nelson Stark Company (“Nelson Stark”); and

WHEREAS, MHP has been formed to complete the Project and to assume responsibility for payment of Nelson Stark for previously performed work on the Project and for work to be performed in the future; and

WHEREAS, DCI desires to transfer and assign DCI’s rights, title and interests under the Development Agreement to MHP, for the purpose of enabling MHP to proceed with Project development in conformity with the Development Agreement to complete the Project; and

WHEREAS, DCI also desires to transfer and assign to MHP all right, title and interest that DCI may have to receive from the City the portion of the Incremental Tax Revenues;

BE IT HEREBY RESOLVED BY THE CITY OF DAYTON, KENTUCKY AS FOLLOWS:

Section I

The City approves and authorizes the Mayor to execute the herein attached and incorporated Second Amendment to the Amended and Restated Development Agreement and all other documents required to execute the terms agreed therein.

Section II

That this Resolution is hereby adopted and approved by the City Council of the City of Dayton, Kentucky this 5th day of September, 2017, and shall be effective immediately upon according to law. This Resolution shall be maintained and indexed in the Official Resolution Book by the City Clerk/Treasurer.

_____________________________

MAYOR VIRGIL L. BORUSKE

ATTEST:

________________________

DONNA LEGER

CITY CLERK/TREASURER

Second amendment

amended and restated DEVELOPMENT AGREEMENT

This Second Amendment to the Amended and Restated Development Agreement, dated as September 5^,2017 (the “Effective Date”)(the “Second Amendment”) between the City of Dayton, Kentucky (the “City”) and DCI PROPERTIES–DKY, LLC, an Ohio limited liability company (“DCI”), and MANHATTAN HARBOUR PROJECT LLC, a Kentucky limited liability company (“MHP”) and collectively referred to as the “Parties.”

RECITALS

WHEREAS, upon review of the Agreement by the City, the City desires certain modifications of the Development Agreement; and

WHEREAS, DCI also desires to transfer and assign to MHP all right, title and interest that DCI may have to receive from the City the portion of the Incremental Tax Revenues;

NOW, THEREFORE, for and in consideration of the foregoing premises and the mutual agreements herein set forth and further good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, so that MHP may proceed with the development of the Property, the parties hereby agree as follows:

Section 1. The Development Agreement and First Amendment shall remain in full force and effect except to the extent it has been modified by this Second Amendment. To the extent of any conflict between the provisions of the Development Agreement, the First Amendment and the Second Amendment, the later agreement shall control.

Section 2. DCI assigns and transfers to MHP all of DCI’s right, title and interest in and to the following:

(A) all of DCI’s right, title and interest in, to and under the Development Agreement, subject to any existing rights set forth in the prior assignment of a portion of the Development Agreement that is referenced in the Memorandum of Agreement to Assign Rights Under Development Agreement recorded with the Campbell County Clerk in MC 625, Page 343 together with a Partial Release of Agreement to Assign Rights Under Development Agreement recorded with the Campbell County Clerk in MC 642, Page 770; and as subsequently amended by First Amendment to Assign Rights Under Development Agreement dated December 15, 2015;

(B) all of DCI’s right, title and interest to the Incremental Tax Revenues that DCI now has or may in the future have the right to receive with respect to or by reason of its interest in the Development Agreement and the Project.

Section 3. MHP accepts this assignment and agrees to assume and perform all obligations set forth in the Development Agreement, the First Amendment and the Second Amendment and those obligations associated with receipt of the Incremental Tax Revenues.

Section 4. All references in the Development Agreement and First Amendment to DCI are hereby replaced with MHP.

Section 5. Section VI (B)(7.) of the Development Agreement is amended to read as follows:

Incremental revenues received and held by the City shall first be used to pay for or reimburse costs associated with the construction of the east-west road, secondly to pay for or reimburse costs paid by the Developer to acquire the interest of the RiverCity Lease, third to pay or reimburse costs not less than $2,000,000 for the construction of a city owned building or facility as articulated in Section VII of this agreement; and thereafter for or reimburse costs for public parking needed to support any multi-family rental or condominium projects in the TIF District. The City may, upon municipal order or resolution, may authorize reimbursement of public parking costs prior to disbursement of funds for the city owned building or facility.

Section 6. Section VII of the Development Agreement is amended to read as follows:

SECTION VII.

The Parties shall cooperate to build a one new City owned building or facility on property owned by the City located in the TIF District subject to the following terms and conditions:

At the City’s option, the Developer shall either (i) serve as development manager and construction manager (without any fee) for the City for the construction of the a City owned building or facility, or (ii) accept title to the property where the Center will be located (without assuming any liabilities then encumbering such property) and construct said building or facility which shall be conveyed to the City upon completion.

The City shall be responsible for obtaining all permits and approvals required for the construction of said building or facility to include acceptance of all contracts for design and construction.

It is the Parties intent that the cost of the design and construction of said building or facility shall be paid for or reimbursed to the City through TIF funds and that the area where said building or facility will be located will be included within the development area TlF district; provided that the aggregate costs and expenses to be paid from the proceeds of such TIF funds shall not exceed $2,000,000 and with the understanding that the City shall at its cost provide the land required for said building or facility. However, in the event that TlF funds are not available to fund said building or facility, the Developer shall pay third-party out-of-pocket expenditures required for the design, development and construction of said building or facility up to a maximum total contribution by the Developer of Five Hundred Thousand Dollars ($500,000), and the City shall be responsible for all third-party out-of-pocket expenditures for the design, development and construction of said building or facility in excess of Five Hundred Thousand Dollars ($500,000). Payment of at least $500,000 of said funds under either of the aforementioned situations described above shall be delivered in full no later than July 1, 2025. In the event that this does not occur by this date as a result of the first two items under Section VI (B) (7) not being satisfied, the Developer will relinquish ten percent (10%) of the annual TIF disbursement, to be applied towards said building or facility. Once the first two obligations are met under Section VI (B) (7) 100% of the annual TIF payment will be relinquished to the City until the obligation is satisfied.

The design, development and construction of said building or facility shall occur based upon a schedule proposed by the Developer and approved by the City, with such approval not being unreasonably withheld, and subject to delays due to force majeure or due to delays in the provision of information, decisions or approvals by the City.

Section 7. Section XVI of the Development Agreement is amended to read as follows:

SECTION XVI

Any notice to be given under this Agreement shall be in writing, shall be addressed to the Party to be notified at the address set forth below or at such other address as each Party may designate for itself from time to time by notice hereunder, and shall be deemed to have been given upon the earliest of (i)_ three (3) days following deposit in the U.S. Mail with proper postage prepaid, Certified or Registered, Return Receipt Requested, (ii) the next business day after delivery to a regularly scheduled overnight delivery carrier with delivery fees either prepaid or an arrangement, satisfactory with such carrier, made for the payment of such fees, or (iii) receipt of notice given by facsimile or personal delivery:

If to City: City of Dayton, Kentucky

Attn: City Administrator

514 Sixth Avenue

Dayton, Kentucky 41074

With copy to: Tom Edge, Esq.

319 York Street

Newport, Kentucky 41071

If to Developer or DCI: DCI Properties-DKY, LLC
Attn: David C. Imboden
451 Bayfront Place # 5310
Naples, FL 34102
Phone: (859) 445-3986

With copy to: Taft Stettinius & Hollister LLP

425 Walnut Street, Suite 1800

Cincinnati, OH 45202-3957

Attn: Robert B. Craig, Esq.

Telephone: (513) 381-2838

Email: craigr@taftlaw.com

If to Developer or MHP: Manhattan Harbour Project LLC

Attn: Paul J. Darpel

25 Town Centre Blvd.

Crestview Hills, KY 41017

Telephone: (859) 486-6868

Email: pdarpel@darpellaw.com

In Witness Whereof, the Parties hereto have hereunto set their hands on the date and year first above set forth herein, to be effective as of the Effective Date.

City of Dayton, Kentucky

By: _______________________

Name: Virgil L. Boruske

Title: Mayor

DCI Properties – DKY, LLC

By: _______________________

Name: David C. Imboden

Title: Member/Manager

Manhattan Harbour Project LLC

By: _______________________

Name: _____________________

Title: Member/Manager

COMMONWEALTH OF KENTUCKY )

)

COUNTY OF _______________ )

This foregoing Agreement was acknowledged to before me this ___ day of September, 2017 by David C. Imboden, as sole member and on behalf of DCI Properties-DKY, LLC, a Kentucky limited liability company.

_______________________________
Notary Public

Notary ID: ______________________

My Commission expires: ___________

COMMONWEALTH OF KENTUCKY )

)

COUNTY OF _______________ )

_______________________________
Notary Public

Notary ID: ______________________

My Commission expires: ___________

COMMONWEALTH OF KENTUCKY )

)

COUNTY OF ________________ )

This foregoing Agreement was acknowledged to before me this __ day of September, 2017 by ________________, as ________________ Member of Manhattan Harbour Project, LLC, a Kentucky limited liability company.

_______________________________ Notary Public

Notary ID: ______________________

My Commission expires: ___________

Exhibit A

Amended and Restated Development Agreement

EXHIBIT B

First Amendment to the Amended and Restated

Motion by Member Lynn, seconded by Member Burns to approve 2017-13R as read.

Comments:

Member Neary requested this to be tabled because he only received the final draft today. City Adm. Giffen advised Member Neary and Council received this last week and had a week to review. Member Neary would like to know about the Berry Street connector. Paul Darpel spoke on behalf of DCI Properties, Mark Stark, MBS and Manhattan Harbour Project to address questions about the Berry Street connector and stated nothing has changed for the Berry Street connector. This resolution is for financial stability and defining roles. City Adm. Giffen stated the agreement with the developer was to reimburse the developer for the road, acquire queen city lease, public parking, and a city building. The 2012 agreement was left to council to decide if they want Berry Street connector and in 2014 council voted yes. Member Volter referred to 2017-13R, section 1, page 2 ‘the first agreement, first amendment shall remain in full force unless it’s been modified.’ Per this document, since nothing has been modified for the Berry Street connector, it remains the same.

ROLL CALL:

Member Lynn Aye Member Neary Aye

Member Volter Aye Member Baker Absent

Member Burns Aye Member Haas Absent

Motion carried- so ordered.

CITY OF DAYTON, KENTUCKY

RESOLUTION NO. 2017-14R

RESOLUTION DECLARING THE OFFICIAL INTENT OF THE CITY OF DAYTON, KENTUCKY WITH RESPECT TO REIMBURSEMENT OF TEMPORARY ADVANCES MADE FOR CAPITAL EXPENDITURES FROM SUBSEQUENT BORROWINGS

WHEREAS, Treasury Regulation § 1.150-2 (the “Reimbursement Regulations”), issued pursuant to Section 150 of the Internal Revenue Code of 1986, as amended, (the “Code”) prescribes certain requirements by which proceeds of tax-exempt bonds, notes, certificates or other obligations included in the meaning of “bonds” under Section 150 of the Code (“Obligations”) used to reimburse advances made for Capital Expenditures (as hereinafter defined) paid before the issuance of such Obligations may be deemed “spent” for purposes of Sections 103 and 141 to 150 of the Code and therefore, not further subject to any other requirements or restrictions under those sections of the Code; and

WHEREAS, such Reimbursement Regulations require that an Issuer (as hereinafter defined) make a Declaration of Official Intent (as hereinafter defined) to reimburse any Capital Expenditure paid prior to the issuance of the Obligations intended to fund such Capital Expenditure and require that such Declaration of Official Intent be made no later than sixty (60) days after payment of the Capital Expenditure and further require that any Reimbursement Allocation (as hereinafter defined) of the proceeds of such Obligations to reimburse such Capital Expenditures occur no later than eighteen (18) months after the later of the date the Capital Expenditure was paid or the date the property acquired with the Capital Expenditure was placed in service, except that any such Reimbursement Allocation must be made no later than three years after such Capital Expenditure was paid; and

WHEREAS, the City of Dayton, Kentucky (the “Issuer”) wishes to ensure compliance with the Reimbursement Regulations;

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DAYTON, KENTUCKY:

SECTION 1. Definitions. The following definitions apply to the terms used herein:

“Allocation” means written evidence that proceeds of Obligations issued subsequent to the payment of a Capital Expenditure are to reimburse the Issuer for such payments. “To allocate” means to make such an allocation.

“Capital Expenditure” means any expense for an item that is properly depreciable or amortizable or is otherwise treated as a capital expenditure for purposes of the Code, as well as any costs of issuing Reimbursement Bonds.

“Declaration of Official Intent” means a written declaration that the Issuer intends to fund Capital Expenditures with an issue of Reimbursement Bonds and reasonably expects to be reimbursed from the proceeds of such an issue.

“Issuer” means either a governmental unit that is reasonably expected to issue Obligations, including the City of Dayton, Kentucky, or any governmental entity or 501(c)(3) organization that is reasonably expected to borrow funds from the actual issuer of the Obligations.

“Reimbursement” means the restoration to the Issuer of money temporarily advanced from other funds, including moneys borrowed from other sources, of the Issuer to pay for Capital Expenditures before the issuance of Obligations intended to fund such Capital Expenditures. “To reimburse” means to make such a restoration.

“Reimbursement Bonds” means Obligations that are issued to reimburse the Issuer for Capital Expenditures, and for certain other expenses permitted by the Reimbursement Regulations, previously paid by or for the Issuer.

“Reimbursement Regulations” means Treasury Regulation § 1.150-2 and any amendments thereto or superseding regulations, whether in proposed, temporary or final form, as applicable, prescribing conditions under which the proceeds of Obligations may be allocated to reimburse the Issuer for Capital Expenditures and certain other expenses paid prior to the issuance of the Obligations such that the proceeds of such Obligations will be treated as “spent” for purposes of Sections 103 and 141 to 150 of the Code.

SECTION 2. Declaration of Official Intent.

The Issuer declares that it reasonably expects that the Capital Expenditures described in Section (b), which were paid no earlier than sixty (60) days prior to the date hereof, or which will be paid prior to the issuance of any Obligations intended to fund such Capital Expenditures, will be reimbursed with the proceeds of Obligations, representing a borrowing by the Issuer in the maximum principal amount, for such Reimbursement, of approximately $3,000,000; and

The Capital Expenditures to be reimbursed are to be used for the acquisition, construction, installation and equipping of a new city administrative building in Dayton, Kentucky.

SECTION 3. Reasonable Expectations. The Issuer does not expect any other funds (including the money advanced to make the Capital Expenditures that are to be reimbursed), to be reserved, allocated on a long-term basis, or otherwise set aside by the Issuer or any other entity, with respect to the Capital Expenditures for the purposes described in Section 2(b).

SECTION 4. Severability. If any section, paragraph or provision of this Resolution shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any of the remaining provisions of this Resolution.

SECTION 5. Open Meeting. It is found and determined that all formal actions of this City Council of the Issuer concerning and relating to the adoption of this resolution were adopted in an open meeting of this City Council of the Issuer; and that all deliberations of this City Council of the Issuer and of any of its committees that resulted in such formal action, were in meetings open to the public, in compliance with the law.

SECTION 6. This Resolution shall take effect from and after its passage, as provided by law.

The undersigned has been authorized by the City Council of the City of Dayton, Kentucky to sign this resolution on behalf of the City Council of the Issuer.

Effective date: September 5, 2017

		City OF Dayton, KENTUCKY


		By:
			Mayor
Attest:


By:
	City Clerk

CERTIFICATE

The undersigned City Clerk of the City of Dayton, Kentucky, does certify that the foregoing is a true copy of a Resolution adopted by the City of Dayton, Kentucky at a meeting of the City Council held on the 5th day of September, 2017.

I further certify that all actions taken in connection with the resolution were in compliance with the requirements of KRS 61.810, 61.815, 61.820 and 61.823, and that said resolution is now in full force and effect, all as appears from the official records of the City in my custody and under my control.

Witness my hand as City Clerk of the City of Dayton, Kentucky, this 5th day of September, 2017.

City Clerk

City Adm. Giffen stated 2017-14R is to add the cost of 503 Berry Street ($65,000) and the demolition cost into the bond. The bond will be used to build the new city building. Any capital expenditures 60 days prior to this resolution is permitted to be added to the bond amount. This resolution does not lock the city into any type of financing it just keeps the doors open to allow us to add in the additional cost of 503 Berry and the demolition cost. A financial package must be submitted within 18 months of the resolution.

Motion by Member Burns, seconded by Member Volter to approve 2017-14R as read.

Comments:

Member Neary questioned why the $65, 000.00 that paid for 503 Berry was taking out of the Economic Development account instead of the General Fund. Mayor Boruske advised that when the city purchases a property and replaces it, this qualifies as Economic Development.

ROLL CALL:

Member Volter Aye Member Baker Absent

Member Burns Aye Member Haas Absent

Member Neary Aye Member Lynn Aye

Motion carried- so ordered.

Department Heads:

Mike Auteri, Fire Chief, submitted a copy of his report.

Dave Halfhill, Police Chief, submitted a copy of his report and congratulated Sgt Marksberry for graduating Sgt Academy.

Bob Yoder, Main Street Manager, submitted a copy of his report, which is listed below.

CCAP:

Awarded first Facade & Structural Improvement at 526 Sixth Avenue for installing windows in the front facade. The building owner is also working on the inside of the building to ready it for use by a retail or small office user.

NKY Designs and Abel Upholstery have closed. The family moved to Florida because of the husband taking a promotion at his company. Working with the building owner to get the space ready for a new tenant.

Dayton Bar & Grill and Christofield’s building have sold to a local business owner who plans on updating and upgrading the apartments and commercial spaces. The new owner is looking for offer commercial spaces for use as restaurants.

Events:

Final Food Truck Thursday for the year is this Thursday: Empanada’s Aqui.

TreeDevelop Dayton – If you’d like a tree visit www.daytonky.com/trees

NANO GRANT EVENTS:

Vine Street Block Party/Front Porch Concert: Saturday, October 14 5 PM to 9 PM, 500 Block of Vine Street.

High School Band Concert:

October 21st, 2 PM at the Memorial Park

Grants Update:

Received MOA from the State for the Dayton Pike, and CBD Streetscape projects.

Recreational Trail Grant: We did not receive RTP grant funding for Sargeant Park. Highly competitive and only Fort Thomas received funding in the entire NKADD district. The RTP Grant will reopen this fall.

Transportation Alternatives Program Grant: Working on a TAP grant application to upgrade bus stops, install street lights and mark KY 8 through Dayton with Shared Land Markers (Sharrows).

Environmental Stewardship Grant: Through the County Extension Service – Trees, shrubs and a butterfly garden at the new Vine Street Park.

Rich McAllister, Code Officer, submitted a report and will resubmit report to council again because some did not receive it.

City Attorney Report:

City Att. Edge worked on a new draft for occupational & payroll application. City Att. Edge is requesting a committee to review. Mayor Boruske advised the Finance Committee and Member Neary can review this.

Mayor Boruske requested if council can meet this Thursday or next Tuesday for have a second reading of the tax ordinance. Council agreed to meet this Thursday at 6:00 pm at Dayton Independent School Administration Building, Third & Clay Street, Dayton, KY.

City Administrator’s Report:

Three handicap applications- one for 812 Vine for Hannah Martinez, second for 626 3rd Ave. for Carol Hollingsworth and 816 Walnut St. for Carol Buschard. All three handicap applications (Hannah Martinez, Carol Hollingsworth, and Carol Buschard) meet the ordinance requirements

Motion by Member Burns, seconded by Member Neary to approve the handicap sign for Hannah Martinez. Motion carried- so ordered.

Motion by Member Burns, seconded by Member Neary to approve the handicap sign at for Carol Hollingsworth. Motion carried – so ordered.

Motion by Member Burns, seconded by Member Neary to approve the handicap sign for Carol Buschard. Motion carried- so ordered.

Two bids were received for the Cushman Cart and the highest bid was for $267.77 from Ken Schultz. Motion by Member Burns, seconded by Member Lynn to award the bid for the Cushman Cart to Ken Schultz. Motion carried- so ordered.

The city received four submissions for Qualifications from professional playground equipment companies to help with procuring, delivery and installation. The budget for the equipment was between $20,000.00 and $40,000.00. Based on the point system for qualifications DWA Recreation had the best proposal with 9 out of 10 points on the scale. City Adm. Giffen advised that he doesn’t have a definitive dollar amount for council yet, but he is meeting with the park board in two weeks and once he starts to meet with DWA Recreation, then he will have a dollar amount for council. Motion by Member Neary, seconded by Member Volter to approve DWA Recreation as preferred company for Vine Street Park. Motion carried- so ordered.

Special Event Application for GoReach Ministries for an event to honor Dayton’s first responders on September 7, 2017, at 7 pm on the corner of 6th & Berry. Motion by Member Burns, seconded by Member Neary to approve the special event application for GoReach Ministries. Motion carried- so ordered.

Unfinished Business:

Member Volter questioned why the Eagles and certain business were left out of the Tif District. City Adm. Giffen explained this was done to capture where the proposed city building would go and to use money from the Tif to help pay for the city building. The further south around the flood wall was captured in case the developer wanted to develop along the riverfront. Should the developer choose to develop more inland on the riverfront this would cover them. City Att. Edge stated that the city pays 80% of the tax revenues received to the Tif. If the city includes too many businesses, this will take away from the cities revenues for property taxes.

Adjournment:

Motion by Member Lynn, seconded by Member Burns to adjourn. Motion carried- so ordered.

Respectfully Submitted,

Tiffany Myers

Assistant Clerk/Treas.

Donna Leger

Clerk/Treas.

ATTEST:

Virgil L. Boruske

Mayor

City of Dayton, Kentucky

September 5, 2017, CITY OF DAYTON COUNCIL MEETING MINUTES

CITY OF DAYTON, KENTUCKY

Section I

Section II

Section III

Section IV

Section V

Section VI

Section VII

CITY OF DAYTON, KENTUCKY

Section I

Section II

CITY OF DAYTON, KENTUCKY

Section I

Agreement Between

the Commonwealth of Kentucky Transportation Cabinet

And

City of Dayton

Dayton Safe Routes to School

Fed proj# 3002-263 & 4002-003/auth# 88788

CONTRACT# 1800000753/item# 06-03505

CITY OF DAYTON, KENTUCKY

CITY OF DAYTON, KENTUCKY

Section 3. MHP accepts this assignment and agrees to assume and perform all obligations set forth in the Development Agreement, the First Amendment and the Second Amendment and those obligations associated with receipt of the Incremental Tax Revenues.

Section 4. All references in the Development Agreement and First Amendment to DCI are hereby replaced with MHP.

In Witness Whereof, the Parties hereto have hereunto set their hands on the date and year first above set forth herein, to be effective as of the Effective Date.

The Capital Expenditures to be reimbursed are to be used for the acquisition, construction, installation and equipping of a new city administrative building in Dayton, Kentucky.

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