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ARDEN HILLS CITY COUNCIL-July 27, 2009 11 MOTION: Councilmember McClung moved and Councilmember Grant seconded a motion to Approve Planning Case 09-012 for Three Variances at 1126 Benton Way, Based on the Findings of Fact and the Submitted Plans, as Amended by the Five Conditions in the July 27, 2009 Report to the City Council. The motion carried unanimously (5- 0). D. Motion to Approve the Escrow Agreement Between the City and RRLD, and Old Republic National Title Insurance Company as the Escrow Agent City Administrator Moorse stated the Council, at its July 22, 2009 TCAAP work session, discussed the use of an Escrow Agreement in relation to disputed TCAAP reimbursable expenses. The City Attorney has recommended that the funds related to disputed reimbursable expenses be placed into an escrow account while the dispute is resolved. The Council requested that the City Attorney provide a letter discussing the pros and cons of placing the funds into an escrow account and this is provided. Mayor Harpstead asked if the developer was in agreement with setting up an escrow account. City Administrator Moorse stated the developer was in agreement at this time. Councilmember Grant asked who drafted the Escrow Agreement. City Administrator Moorse stated that initially it was drafted by the developer, but then it was reviewed by Steve Bubul and the City Attorney Jerry Filla. Councilmember Grant stated the original Preliminary Development Agreement (PDA) Section 23 relating to Dispute Resolution refers to non-binding mediation and the Escrow Agreement, Item 1 on the second page, second line references court or an arbitrators direct ordering. This would be binding arbitration. City Administrator Moorse clarified that the first step in the process is non- binding mediation as is stated in the PDA and if this is not possible then they would potentially move to the court process. Councilmember Grant stated that the Escrow Agreement is governing the escrow account. The Escrow Agreement is used to determine how money comes out of the escrow account and it does not matter what the PDA states.