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2018-05-15 Council PacketCITY OF MENDOTA HEIGHTS CITY COUNCIL AGENDA May 15, 2018 – 7:00 pm Mendota Heights City Hall 1. Call to Order 2. Roll Call 3. Pledge of Allegiance 4. Adopt Agenda 5. Consent Agenda a. Approval of May 1, 2018 City Council Minutes b. Approval of Change Order for Fiber Installation c. Master Services Agreement – KLJ Engineering d. Approve Resolution 2018-36 Supporting the Minnesota Department of Public Safety Grant Program e. Approve Resolution 2018-37 Requesting Extension to Complete the 2040 Comprehensive Plan Update f. Acknowledge Building Activity Report g. Approval of Claims List 6. Public Comments 7. Presentation a. Presentation of Jerry Murphy Community Service Award Recipients 8. Public Hearing - none 9. New and Unfinished Business a. Ordinance 522 Amending City Code Section 3-2 Tobacco Sales and Summary Publication b. Sump Pump Inspection Program Discussion c. Change to Halloween Bonfire d. Change of Council Meeting Date from July 3, 2018 to July 2, 2018 10. Community Announcements 11. Council Comments 12. Adjourn Guidelines for Citizen Comment Period: “The Citizen Comments section of the agenda provides an opportunity for the public to address the Council on items which are not on the agenda. All are welcome to speak. Comments should be directed to the Mayor. Comments will be limited to 5 minutes per person and topic; presentations which are longer than five minutes will need to be scheduled with the City Clerk to appear on a future City Council agenda. Comments should not be repetitious. Citizen comments may not be used to air personal attacks, to air personality grievances, to make political endorsements, or for political campaign purposes. Council members will not enter into a dialogue with citizens, nor will any decisions be made at that presentation. Questions from the Council will be for clarification only. Citizen comments will not be used as a time for problem solving or reacting to the comments made, but rather for hearing the citizen for information only. If appropriate, the Mayor may assign staff for follow up to the issues raised.” CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Regular Meeting Held Tuesday, May 1, 2018 Pursuant to due call and notice thereof, the regular meeting of the City Council, City of Mendota Heights, Minnesota was held at 7:00 p.m. at City Hall, 1101 Victoria Curve, Mendota Heights, Minnesota. CALL TO ORDER Mayor Garlock called the meeting to order at 7:00 p.m. Councilors Duggan, Paper, and Petschel were also present. Councilor Miller arrived at 7:25 p.m. PLEDGE OF ALLEGIANCE Council, the audience, and staff recited the Pledge of Allegiance. AGENDA ADOPTION Mayor Garlock presented the agenda for adoption. Councilor Petschel moved adoption of the agenda. Councilor Duggan seconded the motion. Ayes: 4 Nays: 0 Absent: 1 (Miller) RECOGNITION A) DOUG HENNES, PLANNING COMMISSION Mayor Garlock, on behalf of the City Council, presented a plaque to Mr. Doug Hennes, for serving three terms on the Planning Commission from 2007 to 2018. B) RESOLUTION 2018-34 RECOGNIZING MARK WESTLAKE, ST. THOMAS ACADEMY, NATIONAL SPACE SCIENCE TEACHER OF THE YEAR Councilor Petschel introduced Mr. Westlake, a science teacher at St. Thomas Academy. She stated that he is a teacher who teaches young men how to be competent at science, how to dream, how to create, how to fail, how to learn from failing, and how to accomplish extraordinary things. He started and has led the experimental vehicle program at St. Thomas Academy, which, last year, won the World Championship in terms of getting the most mileage out of a vehicle with the least possible fuel. Councilor Petschel then read the resolution recognizing Mr. Mark Westlake as National Space Educator of the Year. page 3 Councilor Petschel moved to adopt RESOLUTION 2018-34 RECOGNIZING AND HONORING MARK WESTLAKE AS NATIONAL SPACE EDUCATOR OF THE YEAR. Mayor Garlock seconded the motion. Ayes: 4 Nays: 0 Absent: 1 (Miller) CONSENT CALENDAR Mayor Garlock presented the consent calendar and explained the procedure for discussion and approval. Councilor Petschel moved approval of the consent calendar as presented and authorization for execution of any necessary documents contained therein, pulling items a) Approval of April 17, 2018 City Council Minutes; b) Approval of April 17, 2018 Council Closed Session Minutes; c) Acknowledge the March 27, 2018 Planning Commission Meeting Minutes; g) Developer’s Agreement for “The Oaks of Mendota Heights”, located at 2511-2525 Condon Court; l) Approval of Claims List. a. Approval of April 17, 2018 City Council Minutes b. Approval of April 17, 2018 Council Closed Session Minutes c. Acknowledge the March 27, 2018 Planning Commission Meeting Minutes d. Acknowledge the March 21, 2018 Airport Relations Commission Meeting Minutes e. Approval of City Administrator Compensation Placement on Pay Matrix, and Adjustment f. Ratify 2018-2019 Labor Agreement with the Minnesota Public Employee Association g. Developer’s Agreement for “The Oaks of Mendota Heights”, 2511-2525 Condon Court h. Approve Grading Permit at 2455 Visitation Drive i. Approve Grading Permit at 1179 Centre Pointe Circle j. Acknowledgement of Fire Synopsis Report k. Approval of Treasurer’s Report l. Approval of Claims List Councilor Duggan seconded the motion. Ayes: 4 Nays: 0 Absent: 1 PULLED CONSENT AGENDA ITEM A) APPROVAL OF APRIL 17, 2018 CITY COUNCIL MINUTES B) APPROVAL OF APRIL 17, 2018 COUNCIL CLOSED SESSION MINUTES Councilor Petschel explained that she had these two items pulled from the Consent Agenda as she and Councilor Duggan would need to recuse themselves from voting on them since they were not present at the meeting. She requested that the minutes be moved to New and Unfinished Business, later in the meeting after Councilor Miller arrives. C) ACKNOWLEDGE THE MARCH 27, 2018 PLANNING COMMISSION MEETING MINUTES page 4 Councilor Duggan explained that he appreciated that the minutes were almost verbatim. He requested that the minutes for any contentious issues going forward be prepared in the same manner. Councilor Duggan moved to acknowledge the March 27, 2018 Planning Commission minutes. Mayor Garlock seconded the motion. Ayes: 4 Nays: 0 Absent: 1 (Miller) G) DEVELOPER’S AGREEMENT FOR “THE OAKS OF MENDOTA HEIGHTS”, LOCATED AT 2511-2525 CONDON COURT (DICK BJORKLUND PROPERTIES, LLC) Councilor Duggan noted that this has been a challenge for many years for Mr. Bjorklund; ensuring that what they have built has been outstanding projects. Councilor Duggan moved to adopt the Developer’s Agreement for “The Oaks of Mendota Heights”, located at 2511-2525 Condon Court (Dick Bjorklund Properties, LLC). Mayor Garlock seconded the motion. Ayes: 4 Nays: 0 Absent: 1 (Miller) Mr. Dick Bjorklund came forward and expressed his appreciation to the Council, Public Works Director Ryan Ruzek, and Community Development Director Tim Benetti for all their help. L) APPROVAL OF CLAIMS LIST Councilor Duggan noted that the City Hall remodel had a $39,524.84 payment. He requested dated totals on what has been paid for this City Hall improvement project. Councilor Duggan moved to approve the Claims List. Mayor Garlock seconded the motion. Ayes: 4 Nays: 0 Absent: 1 (Miller) PUBLIC COMMENTS Mr. David Hiner, 1295 Kendon Lane, explained that when he moved to the area, they had septic systems and wells for many years. Now they are hit with the destruction of Lemay Lake. There is a problem with the dumping of drain water into it. There is also a problem with the city dumping the street sweeper debris and vac-truck debris too close to Lemay Lake. Mr. Hiner spoke about the Michael Development site. They are going to put in tanks and a new pipe for the stormwater, however, it will eventually erode the ground and go into the lake. Stormwater near Augusta Shores goes directly into the east end of Lemay Lake. He and his neighbors have fought hard to preserve Lemay Lake and they now find themselves in another situation where the lake is being destroyed. page 5 He encouraged the Council to request that Michael Development make the new apartments for people ages 55 and over. In terms of Lake Augusta, the water is going to run downhill and erode a path to Augusta Lake, putting more silt into the lake that is already beyond repair. Mr. Ruzek says there are two storm sewer lines that are dumping into Augusta Lake. Mr. Ruzek is trying to get them to fix it. He questioned why this does not happen with Rogers Lake. He requested that the councilors go out and view the problem. Ms. Rachel Quick 554 Junction Lane, participated in a project at Valley Park with Great River Greening. She thought this was an amazing project and she understood that it was supported and sponsored by the City of Mendota Heights. There were 205 volunteers removing buckthorn and planting native species to prevent the things that are impacting water quality. PRESENTATIONS No items scheduled. PUBLIC HEARING No items scheduled. NEW AND UNFINISHED BUSINESS A) RESOLUTION 2018-35 APPROVING A WETLANDS PERMIT REQUEST FOR ELEVATION HOMES / ROB & SUEMI TUTTLE AT 954 WAGON WHEEL TRAIL (PLANNING CASE NO. 2018-10) Community Development Director Tim Benetti explained this request for a Wetlands Permit to Elevation Homes on behalf of Drs. Rob and SueMi Tuttle. Per City Code 12-2-6, any construction within 100 feet of a wetland or lake feature requires this permit. The subject property is approximately 4.02 acres in size, with approximately 1.97 of the area buildable. The existing house would be removed. Elevation Homes plans to construct a 5,500 square foot, two story home with a 1,193 square foot attached three-car garage. The location of this proposed building meets all setbacks. It is proposed to remove approximately 26-28 trees that are in poor shape. As part of the replacement plan, the owners are looking to putting in 24 new trees; 14 deciduous and 10 evergreens; primarily along the north edge of the driveway and on the east side. Most of the trees in the rear area will be preserved or maintained. Councilor Duggan asked about a park dedication fee as he did not see it in the documentation. Mr. Benetti replied that the park dedication fee is only applicable if they are planning new lots; however, this is not a new lot. page 6 Councilor Paper, referring to the Background section that reads “All new work should have very little, if any impacts to the adjacent lake or wetland features” asked what the spacing would be on the double row of silt fencing and what else was being done to ensure that nothing runs into this lake. Mr. Benetti replied that there would be regular inspections; it is also incumbent on the builder to ensure that the silt fence is well maintained during the duration of the project. Councilor Duggan moved to adopt RESOLUTION 2018-35 APPROVING A WETLANDS PERMIT FOR PROPERTY LOCATED AT 954 WAGON WHEEL TRAIL. Councilor Miller seconded the motion. Ayes: 5 Nays: 0 B) AMENDMENT TO THE RECREATIONAL FACILITY RESERVATION/SPECIAL EVENT POLICY Recreation Program Coordinator Meredith Lawrence explained the proposed amendment to the Mendota Heights Recreational Facility/Special Event Policy, amending priority categories. The reason for this request was due to increasing demand from sports and clubs, and the deviation from traditional sports seasons. Staff recommended amending the priority categories. The amended list separates city recognized youth athletic associations from city recognized community youth organizations and clubs. This will make the process easier for staff and clearer when administering the fields to those who want to use them. In March 2018, staff allocated the fields for the 2018 season and they will not be reallocated due to this priority list amendment. The new priority list would be effective for the 2019 year. Ms. Lawrence clarified that staff has a request for Mendota Heights Athletic Association and Sibley Area Youth Hockey to be part of the #4 category (Youth Athletic Associations) and the #5 category (Recognized Community Youth Organizations and Clubs) would include – but would not be limited to – organizations such as Rev Soccer Club. Councilor Paper asked why Sibley Area Youth Hockey was included in the #4 category. Ms. Lawrence replied that staff works very closely with Sibley Area Youth Hockey; they use the city’s rinks in the winter and staff feels that they are a community based organization solely with Mendota Heights and the school district. Councilor Duggan, referencing number 5-b-iii, noted that he liked the statement that ‘the organization must be able to confidently provide . . .’ He then referenced 5-b-iii-3 that reads ‘There must be a policy for determining teams based on ability’ and stated that he assumed there is a determination of what are those policies and how they would be implemented. Ms. Lawrence confirmed that this was true. Councilor Duggan mentioned that staff may want to pluralize some of the items on next page. Councilor Petschel asked for clarification of the word “confidentially” in number 5-b-iii. Ms. Lawrence replied that the word should be ‘confidently’; however, the information they provide would be kept confidential. page 7 Councilor Paper, referencing the coach’s certification and training, stated that he could speak from experience that there is a background check and concussion training that all coaches are required to go through. Councilor Petschel moved to approve the amended Mendota Heights Recreational Facility/Special Event Policy, which includes youth athletic associations as a separate priority category in the allocation of fields and facilities. Councilor Duggan seconded the motion. Ayes: 5 Nays: 0 C) APPROVAL OF THE 2018 GREAT RIVER GREENING WORK PLANS Public Works Director Ryan Ruzek explained that the Council was being asked to approve two purchase orders for Great River Greening. The purchase orders are for management of invasive plants and prairie management. Over the last several years, Great River Greening has been assisting Mendota Heights in invasive species management in Valley Park. In 2018, Great River Greening is proposing to continue work at Rogers Lake Park. They are proposing to have three smaller events, which would help control the buckthorn and garlic mustard. The second purchase order would be for prairie management at Pilot Knob Hill. The purchase order amounts include the following: Valley Park, the city contribution would be $2,500 while also having private volunteer in-kind funds of $18,000. Mendota Heights would haul away the cut buckthorn. Rogers Lake, the city contribution would be $7,500 while also having private volunteer in- kind funds of $4,000. Mendota Heights would haul away the cut buckthorn. Pilot Knob Hill, the city contribution would be $10,700 while also receiving $22,800 from the Minnesota Environment and Natural Resource Trust. The work plan at Pilot Knob was also underspent by $2,000 in 2017. Councilor Petschel commented on her wonderful experience working the event at Valley Park with Great River Greening. Councilor Duggan asked if other areas of the community that have buckthorn will be included in these plans at some point in the future. Mr. Ruzek replied that they are in the process of developing a plan with the Parks and Recreation Commission. Staff is also looking to review the possibility of hiring a volunteer staff coordinator. Councilor Petschel moved to authorize the purchase orders in the not to exceed amount of $10,000 and a not-to-exceed amount of $10,700 to Great River Greening. Councilor Duggan seconded the motion. Ayes: 5 Nays: 0 D) APPROVAL OF APRIL 17, 2018 CITY COUNCIL MINUTES / APPROVAL OF APRIL 17, 2018 COUNCIL CLOSED SESSION MINUTES page 8 Consent agenda items a and b were presented for approval. Councilors Duggan and Petschel were recused from voting. Councilor Duggan moved to approve the April 17, 2018 City Council Minutes and to approve the April 17, 2018 Council Closed Session minutes. Councilor Paper seconded the motion. Ayes: 3 Nays: 0 Recused: 2 (Duggan and Petschel) COMMUNITY ANNOUNCEMENTS City Administrator Mark McNeill announced that the city wide clean-up day is May 5, 2018 from 8:00 a.m. to 12:00 p.m. at Mendakota Park. The Mendota Heights Par 3 also has opened for the season. COUNCIL COMMENTS Mayor Garlock stated that the West St. Paul City Council approved the City of Mendota Heights’ plan to establish a memorial for Officer Scott Patrick at Smith and Dodd. Councilor Petschel noted that she, Mr. McNeill, and Mr. Benetti had an opportunity to sit down with the merchants in The Village to talk with them about their concerns and ask questions; it was a very positive and productive meeting. She also expressed her appreciation to Public Works for putting up all of the new wood duck boxes on the ponds. Councilor Miller stated that he saw on the west end of Rogers Lake a group of kids and parents cleaning the bank. He thanked them for their efforts. Councilor Paper expressed his appreciation to Chief of Police Kelly McCarthy for the community information event put on last Thursday. It was well attended. He heard of lot of very positive comments. He also reminded everyone that District 197 has an upcoming referendum vote on May 8, 2018. Early voting is open at the district offices. Additional information can be found on the District 197’s website. Councilor Duggan expressed how he was impressed at the low key and in charge way Mayor Garlock ran the meetings while he was away. He also suggested that staff be allowed approximately 60 days to address Mr. Hiner’s issues and try to get back to him. He noticed that The Plaza has lots of challenges, the biggest being the wetland creek area. He asked staff to take a look, take pictures, and determine what can be done to provide a much better creek – like what used to be there. He talked with two police officers and they suggested that the Council consider a round-about at South Plaza Drive to handle the traffic, and possibly another round-about at Highway 149 and Wagon Wheel to help move traffic along. page 9 He noted that the small businesses in Lilydale are still open and suggested that residents visit them if they can. ADJOURN Councilor Miller moved to adjourn. Councilor Petschel seconded the motion. Ayes: 5 Nays: 0 Mayor Garlock adjourned the meeting at 8:05 p.m. ____________________________________ Neil Garlock Mayor ATTEST: _______________________________ Lorri Smith City Clerk page 10 DATE: May 15, 2018 TO: Mayor and City Council, City Administrator FROM: Cheryl Jacobson, Assistant City Administrator SUBJECT: Change Order—Backbone Fiber Installation Introduction The City Council is asked to approve a change order for the installation of additional conduit and fiber optic cable to complete the City’s connection to the Dakota County fiber ring. Background At its October 3, 2017, the City Council awarded a contract to Castrejon for the installation of conduit and fiber optic cable to connect to the Dakota County fiber ring (the backbone extension along Lexington Avenue). LOGIS, acting as project manager for the City, has determined that the hand hole to connect to the Dakota County fiber is not at the location originally indicated. Instead of the connection being at Lexington and Mendota Heights Road, the connection is at Medallion and Mendota Heights Road. Given the location change, the installation of additional fiber and conduit is needed to get to the Medallion location to connect to existing Dakota County fiber. Budget Impact Castrejon has submitted a change order in the amount of $21,500. The additional cost would be included in the cost share agreement with Dakota County, which includes Dakota County suppling the materials and contributing two-thirds of the costs of construction. Total Change Order Amount: $21,500.00 Dakota County Supplied Materials: ($3,660.00) Change Order Total: $17,840.00 (Construction Costs) If approved, the City will move forward with the project and invoice Dakota County for their portion of the construction costs when the project is complete. The City’s portion of costs will be paid with funds made available from the City Cable Fund. Recommendation Staff has reviewed the change order with LOGIS, and recommends approval. page 11 Action Requested If the Council concurs, it should, by motion, approve the change order as submitted by Castrejon, for the installation of conduit and fiber optic cable to complete the backbone connection the Dakota County fiber ring, in the amount of $17,840.00. page 12 REQUEST FOR COUNCIL ACTION DATE: May 15, 2018 TO: Mayor, City Council, and City Administrator FROM: Ryan Ruzek, P.E., Public Works Director SUBJECT: Master Services Agreement – KLJ Engineering COMMENT: INTRODUCTION The Council is asked to authorize a Master Services Agreement with Kadrmas, Lee, & Jackson, Inc. (KLJ Engineering). BACKGROUND The purpose of establishing a consultant pool is to allow the City to simply award work orders to selected consultants within the pool without going through a full Request for Proposal (RFP) process for each work order. Selected consultants would have a rate schedule that would be accepted along with their SOQ and would be held to those billing rates. A work-hour limit could be negotiated within each work order issued so a “not to exceed” price is arrived at prior to work order award. This is a process many other cities throughout the Metro Area use for managing their consultants, and it has proven effective in saving staff time by eliminating the drafting, publishing RFPs, reviewing proposals and awarding contracts. Mendota Heights entered in a Master Services Agreement with the following consulting firms in 2016: 1. General Municipal Services (project development, feasibility reports, etc.) a. Bolton & Menk b. SRF Consulting Group (MnDOT specialty) c. Stantec d. TKDA (MnDOT specialty) e. WSB & Associates 2. Landscape Architecture a. Kimley-Horn b. SRF Consulting Group 3. Geographic Information System (GIS) a. Northpoint Geographic b. RESPEC 4. Land Surveying a. Stonebrooke Engineering b. Sunde Land Surveying page 13 5. Natural Resources/Water Resources (including surface water & storm sewer) a. Barr b. Emmons & Oliver Resources c. MSA Professional Services 6. Geotechnical/Soils Analysis & Material Testing a. Braun Intertec b. Northern Technologies 7. Traffic/Transportation a. SRF Consulting Group b. Stonebrooke Engineering 8. Construction Inspections a. Bolton & Menk b. Stantec 9. Utilities a. Foth Infrastructure & Environmental b. Short, Elliott, & Hendrickson DISCUSSION Mendota Heights has awarded several projects to KLJ Engineering over the past year due unavailability of consultants from the existing pool, current work with other agencies (MnDOT), and a familiarity of city operations (former Public Works Director). The city has been satisfied with the work it has awarded to KLJ Engineering and staff desires to add them to the existing consultant pool under General Municipal services due to their varying areas of expertise. BUDGET IMPACT None. Expenditures for consultant service within the pre-approved pool of firms would be dependent upon approved work with the City Capital Improvement Plan (CIP) or other budgeted project or program. RECOMMENDATION Staff recommends Council approve KLJ Engineering for the Mendota Heights Pre-Qualified Consultant Pool. That would be reflected by adding its name under #1 (above). Staff further recommends that Council authorize staff to execute a master agreement contract. ACTION REQUIRED If Council wishes to act on the staff recommendation, pass a motion approving KLJ Engineering for the Mendota Heights Pre-Qualified Consultant Pool and authorizing staff to execute a master agreement contracts. This action requires a simple majority vote. page 14 MASTER AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES AGREEMENT made between the CITY OF MENDOTA HEIGHTS, a Minnesota municipal corporation, hereinafter called the "OWNER", and KADRMAS, LEE, & JACKSON, INC. (d.b.a. KLJ) hereinafter called the "ENGINEER". OWNER intends to secure professional ENGINEERING services, according to the terms of this Agreement. 1. SUPPLEMENTAL AGREEMENT OWNER intends to secure professional consulting for general municipal engineering, utility engineering, natural/water resources, landscape architectural, traffic analysis, geographic information system (GIS), material testing, construction inspection, and/or land survey services on an ongoing basis for general City services and multiple projects, according to the terms of this agreement. OWNER and ENGINEER shall enter into project specific supplemental agreements. This Master Agreement shall be deemed incorporated into the Supplemental Agreements unless a Supplemental Agreement specifically provides that it is not incorporated. If there is a conflict between the terms of the Supplemental Agreement and the Master Agreement, the terms of the Master Agreement shall control unless the Supplemental Agreement specifically provides that despite the conflict the terms of the Supplemental Agreement apply. This Agreement is not a commitment by OWNER to ENGINEER to issue any Task Orders. ENGINEER shall not be obligated to perform any prospective Task Order unless and until OWNER and ENGINEER agree as to the particulars of the Specific Project, including the scope of ENGINEER’ services, time for performance, ENGINEER’S compensation, and all other appropriate matter 1.1 DELIVERY ORDERS ASSIGNED 1.1.1 OWNER, when assigning work to the ENGINEER, will provide a scope of work as part of a delivery order request to the ENGINEER. The delivery order scope of work issued by OWNER may or may not include all provisions listen in the agreement herein. 1.1.2 ENGINEER will respond, within the specified time period in the delivery order, with a statement of understanding of the work requested and a “not-to-exceed” cost for completion of the work. 1.1.3 Once agreed upon, OWNER will authorize work on the delivery order to begin. 2. PUBLIC IMPROVEMENT PROJECT SERVICES OF ENGINEER 2.1 STUDY AND REPORT PHASE / FEASIBILITY REPORT 2.1.1. Consult with OWNER to clarify and define OWNER'S requirements for the Project, review available data and attend necessary meetings and be available for general consultation. page 15 2.1.2. Advise OWNER as to the necessity of OWNER'S providing or obtaining from others data or services of the types described in paragraph 4, and assist OWNER in obtaining such data and services. 2.1.3. Identify and analyze requirements of governmental authorities having jurisdiction to approve the design of the Project and participate in consultations with such authorities. 2.1.4. Provide analyses of OWNER'S needs, planning surveys, site evaluations and comparative studies of prospective sites and solutions. 2.1.5. Provide a general economic analysis of OWNER'S requirements applicable to various alternatives. 2.1.6. The ENGINEER shall conduct and prepare preliminary studies, layouts, sketches, preliminary field work, preliminary cost estimates, estimates of assessment rates, and shall assist the OWNER in obtaining required subsurface investigations as required for the preparation of the Feasibility Reports. The Feasibility Reports shall conform to the requirements of Minn. Stat. Chapter 429 if the cost of the project may be assessed in whole or part. The report shall contain schematic layouts, sketches and conceptual design criteria with appropriate exhibits to indicate clearly the considerations involved (including applicable requirements of governmental authorities having jurisdiction as aforesaid) and the alternative solutions available to OWNER and setting forth ENGINEER'S findings and recommendations. This Report will be accompanied by ENGINEER'S opinion of probable costs for the Project, including the following which will be separately itemized: construction cost and indirect cost consisting of engineering costs and contingencies, and (on the basis of information furnished by OWNER) allowances for such other items as charges of all other professionals and consultants, for the cost of land and rights-of-way, for compensation for or damages to properties, for interest and financing charges and for other services to be provided by others for OWNER. The total of all construction and indirect costs are hereinafter called "Total Project Costs". 2.1.7. Furnish five (5) printed copies of the Study and Report documents and one (1) electronic file and review them in person with OWNER. 2.1.8. The ENGINEER shall assist with presenting the Feasibility Reports to the proper reviewing agencies and to the City Council. The ENGINEER shall appear at the public hearing to present the information. 2.2 PRELIMINARY DESIGN PHASE 2.2.1. In consultation with OWNER and on the basis of the accepted Study and Report documents, determine the general scope, extent and character of the Project; attend necessary meetings and be available for general consultation. 2.2.2. Prepare Preliminary Design documents consisting of final design criteria, preliminary drawings, outline specifications and written descriptions of the Project. 2.2.3. Advise OWNER if additional data or services of the types described in paragraph 4.4 are necessary and assist OWNER in obtaining such data and services. 2.2.4. Based on the information contained in the Preliminary Design documents, submit a revised opinion of probable Total Project Costs. page 16 2.2.5. Furnish preliminary legal descriptions and exhibits for all permanent and temporary easements anticipated to construct the Project. 2.2.6. Furnish three (3) copies of the above Preliminary Design documents and one (1) electronic copy and present and review them in person with OWNER 2.3 FINAL DESIGN PHASE 2.3.1. On the basis of the accepted Preliminary Design documents, the City’s design standards, and the revised opinion of probable Total Project Costs prepare for incorporation in the Bidding Documents final drawings to show the general scope, extent and character of the work to be furnished and performed by Contractor(s) (hereinafter called "Plans") and Specifications. 2.3.2. Provide technical criteria, written descriptions and design data for use in filing applications for permits with or obtaining approvals of such governmental authorities as have jurisdiction to approve the design of the Project and assist OWNER in consultations with appropriate authorities. The ENGINEER shall submit all applications and permit support data to the appropriate agencies and submit copies to the OWNER. 2.3.3. Based on property information received from Owner in accordance with Paragraph 4.4, provide legal descriptions and exhibits for all easements, property surveys or related engineering services needed for the transfer of interests in real property and field surveys for design purposes and engineering surveys and staking to enable Contractor(s) to proceed with their work. 2.3.4. Advise OWNER of any adjustments to the latest opinion of probable Total Project Costs caused by changes in general scope, extent or character or design requirements of the Project or Construction Costs. Furnish to OWNER a revised opinion of probable Total Project Costs based on the Plans and Specifications. 2.3.5. Prepare for review and approval by OWNER, its legal counsel and other advisors contract agreement forms, general conditions and supplementary conditions, and (where appropriate) bid forms, invitations to bid and instructions to bidders, and assist in the preparation of other related documents. 2.3.6. Attend necessary hearings and meetings and be available for general consultation. 2.3.7. Furnish three (3) copies of the listed Final Design documents, including the Plans and Specifications, and present and review them in person with OWNER. 2.3.8. The ENGINEER shall furnish one copy of all design calculations when requested by OWNER. 2.4 BIDDING OR NEGOTIATING PHASE 2.4.1. The ENGINEER shall prepare and forward the Advertisement for Bids to the designated publications, online bidding site, and official newspaper and the OWNER. The ENGINEER shall supply up to thirty (30) sets of full size final Plans and Specifications for use in obtaining bids and submitting for general review. The ENGINEER shall maintain a record of prospective bidders to whom Bidding Documents have been issued, attend pre-bid meetings and receive and process deposits for Bidding Documents. page 17 2.4.2. Prepare Contract Documents. 2.4.3. Issue addenda as appropriate to interpret, clarify or expand the Bidding Documents. 2.4.4. Consult with and advise OWNER as to the acceptability of the prime contractor and subcontractors, suppliers, and other persons and organizations proposed by the prime contractor(s) (herein called "Contractor(s)") for the portions of the work where acceptability is required by the Bidding Documents. 2.4.5. Consult with and advise OWNER concerning and determining the acceptability of substitute materials and equipment proposed by Contractor(s) when substitution prior to the award of contracts is allowed by the Bidding Documents. 2.4.6. Attend the bid opening, prepare bid tabulation sheets and assist OWNER in evaluating bidder qualifications and recommendations on bids, and in assembling and awarding contracts for construction, materials, equipment and services. 2.5 CONSTRUCTION PHASE 2.5.1. General Administration of Construction Contract. ENGINEER shall consult with and advise OWNER and act as OWNER'S representative. All of OWNER'S instructions to Contractor(s) will be issued through ENGINEER who will have authority to act on behalf of Owner to the extent provided in the General Conditions except as otherwise provided in writing. The General Conditions shall not be modified without the written agreement of the OWNER. 2.5.2. Visits to Site and Observation of Construction. In connection with observations of the work of Contractor(s) while it is in progress: 2.5.2.1. ENGINEER shall make visits to the site at intervals appropriate to the various stages of construction as ENGINEER deems necessary in order to observe as an experienced and qualified design professional the progress and quality of the various aspects of Contractor(s) work. In addition, if requested by OWNER, ENGINEER shall provide the services of a Resident Project Representative (and assistants as agreed) at the site to assist ENGINEER and to provide more continuous observation of such work. Based on information obtained during such visits and on such observations, ENGINEER shall endeavor to determine in general if the work is proceeding in accordance with the Contract Documents and ENGINEER shall keep OWNER informed of the progress of the work. 2.5.2.2. The Resident Project Representative (and any assistants) will be ENGINEER'S agent or employee and under ENGINEER'S supervision. 2.5.2.3. ENGINEER shall not, during such visits or as a result of such observations of Contractor(s)' work in progress, supervise, direct, or have control over Contractor(s)' work, nor shall ENGINEER have control or charge of and shall not be responsible for the Contractor(s)' means, methods, techniques, sequences, or procedures of construction selected by Contractor(s), for safety precautions and programs incident to the page 18 work of Contractor(s) or for any failure of Contractor(s) to comply with laws, rules, regulations, ordinances, codes, or orders applicable to Contractor(s) furnishing and performing their work. Accordingly, ENGINEER can neither guarantee the performance of the construction contracts by Contractor(s) nor assume responsibility for Contractor(s)' failure to furnish and perform their work in accordance with the Contract Documents. 2.5.2.4. If ENGINEER observes or otherwise becomes aware of defects or deficiencies in the work, or nonconformance to the Contract Documents, ENGINEER shall promptly give written notice thereof to OWNER. 2.5.3. Defective Work. During such visits and on the basis of such observation, ENGINEER may disapprove of or reject Contractor(s) work while it is in progress if ENGINEER believes that such work will not produce a completed Project that conforms generally to the Contract Documents or that it will prejudice the integrity of the design concept of the Project as reflected in the Contract Documents. 2.5.4. Interpretations and Clarifications. ENGINEER shall issue necessary interpretations and clarifications of the Contract Documents and in connection therewith prepare work directive changes and change orders as required for OWNER'S approval. 2.5.5. Shop Drawings. ENGINEER shall review and approve (or take other appropriate action in respect of) Shop Drawings, samples and other data which Contractor(s) are required to submit, but only for conformance with the design concept of the Project and compliance with the information given in the Contract Documents. Such reviews and approvals or other action shall not extend to means, methods, techniques, sequences or procedures of construction or to safety precautions and programs incident thereto. 2.5.6. Substitutes. ENGINEER shall evaluate and determine the acceptability of substitute materials and equipment proposed by Contractor(s). 2.5.7. Inspections and Tests. ENGINEER shall have authority, as OWNER'S representative, to require special inspection or testing of the work by Contractor, and shall receive and review all certificates of inspections, testing and approvals required by laws, rules, regulations, ordinances, codes, orders or the Contract Documents (but only to determine generally that their content complies with the requirements of, and the results certified indicate compliance with, the Contract Documents). ENGINEER shall be entitled to rely on the results of such tests. 2.5.8. ENGINEER shall respond to all written claims submitted by Contractor in a timely fashion. ENGINEER shall not be liable for the results of any such interpretations or decisions rendered in good faith. 2.5.9. Applications for Payment. Based on ENGINEER'S on-site observations as an experienced and qualified design professional, on information provided by the Resident Project Representative and on review of applications for payment and the accompanying data and schedules: 2.5.9.1. ENGINEER shall determine the amounts owing to Contractor(s) and recommend in writing payments to Contractor(s) in such amounts and page 19 the OWNER shall verify the amounts. Such recommendations of payment will constitute a representation to OWNER, based on such observations and review, that the work has progressed to the point indicated, and that, to the best of ENGINEER'S knowledge, information and belief, the quality of such work is generally in accordance with the Contract Documents (subject to an evaluation of such work as a functioning whole prior to or upon Substantial Completion, to the results of any subsequent tests called for in the Contract Documents and to any other qualifications stated in the recommendation). In the case of unit price work, ENGINEER'S recommendations of payment will include final determinations of quantities and classifications of such work (subject to any subsequent adjustments allowed by the Contract Documents). 2.5.9.2. By recommending any payment ENGINEER will not thereby be deemed to have represented that exhaustive, continuous or detailed reviews or examinations have been made by ENGINEER to check the quality or quantity of Contractor(s)' work as it is furnished and performed beyond the responsibilities specifically assigned to ENGINEER in this Agreement and the Contract Documents. ENGINEER'S review of Contractor(s)' work for the purposes of recommending payment will not impose on ENGINEER responsibility to supervise, direct or control such work or for the means, methods, techniques, sequences or procedures of construction or safety precautions or programs incident thereto or Contractor(s)' compliance with laws, rules, regulations, ordinances, codes or orders applicable to their furnishing and performing the work. It will also not impose on ENGINEER responsibility to make any examination to ascertain how or for what purposes any Contractor has used the money paid on account of the Contract Price, or to determine that title to any of the work, materials or equipment has passed to OWNER free and clear of any lien, claims, security interests or encumbrances, or that there may not be other matters at issue between OWNER and Contractor that might affect the amount that should be paid. 2.5.10. Contractor(s)' Completion Documents. ENGINEER shall receive and review maintenance and operating instructions, schedules, guarantees, bonds and certificates of insurance, tests and approvals which are to be assembled by Contractor(s) in accordance with the Contract Documents (but such review will only be to determine that their content complies with the requirements of, and in the case of certificates on inspection, tests and approvals the results certified indicate compliance with, the Contract Documents); and shall transmit them to OWNER with written comments. 2.5.11. Inspections. ENGINEER shall conduct an inspection to determine if the work is substantially complete and a final inspection to determine if the completed work is acceptable so that ENGINEER may recommend, in writing, final payment to Contractor(s) and give written notice to OWNER and the Contractor(s) that the work is acceptable (subject to any conditions therein page 20 expressed), but any such recommendation and notice will be subject to the limitations expressed in paragraph 2.5.5. 2.5.12. Limitation of Responsibilities. ENGINEER shall not be responsible for the acts or omissions of any Contractor, or of any subcontractor or supplier, or any of the Contractor(s)' or subcontractors' or suppliers' agents or employees of any other persons (except ENGINEER'S own employees and agents) at the site or otherwise furnishing or performing any of the Contractor(s)' work; however, nothing contained in paragraphs 2.5.1 through 2.5.12 inclusive, shall be construed to release ENGINEER from liability for failure to properly perform duties and responsibilities assumed by ENGINEER in the Contract Documents. 2.6 OPERATIONAL PHASE 2.6.1. Provide assistance in the closing of any financial or related transaction for the Project. 2.6.2. Provide assistance in connection with the refining and adjusting of any equipment or system. 2.6.3. Assist OWNER in training OWNER'S staff to operate and maintain the Project. Training shall be mutually agreed upon within the Supplemental Agreement as Additional Services as defined in Section 3 of this agreement. 2.6.4. Assist OWNER in developing systems and procedures for control of the operation and maintenance of and record keeping for the Project. 2.6.5. Within ninety (90) days after completion of a Project, prepare a set of reproducible record prints of Drawings and an electronic version that satisfy the City of Lakeville Record Drawing requirements, attached hereto, showing those changes made during the construction process, based on the marked-up prints, drawings and other data furnished by Contractor(s) to ENGINEER and which ENGINEER considered significant. ENGINEER will not be responsible for any errors or omissions in the information provided by Contractor that is incorporated in the record drawings and record documents. Final payment will be made only after record drawings are received by the OWNER. 2.6.6. In company with OWNER, visit the Project to observe any apparent defects in the completed construction, assist OWNER in consultations and discussions with Contractor(s) concerning correction of such deficiencies, and make recommendations as to replacement or correction of defective work. 2.6.7. Assist OWNER in preparation of assessment roll for City improvement projects and attend assessment hearings. 3. ADDITIONAL PUBLIC IMPROVEMENT PROJECT SERVICES OF ENGINEER 3.1 SERVICES REQUIRING ADVANCE AUTHORIZATION. If authorized in writing by OWNER, ENGINEER shall furnish or obtain from others Additional Services of the types listed in paragraphs 3.1.1 through 3.1.12, inclusive. These services are not included as part of Basic Services except to the extent provided otherwise by attached Supplemental Agreement or Work Order and will be paid for by OWNER as indicated in Section 6. page 21 3.1.1. Preparation of applications and supporting documents (in addition to those furnished under Basic Services) for private or governmental grants, loans or advances in connection with the Project; preparation or review of environmental assessments and impact statements; review and evaluation of the effect on the design requirements of the Project of any such statements and documents prepared by others; and assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project. 3.1.2. Field Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the accuracy of drawings or other information furnished to OWNER by others, including surveys to verify location or improve accuracy of record information provided by Contractor under Paragraph 2.6.5. 3.1.3. Services resulting from significant changes in the general scope, extent or character of the Project or its design including, but not limited to, changes in size, complexity, OWNER'S schedule, character of construction or method of financing; and revising previously accepted studies, reports, design documents or Contract Documents when such revisions are required by changes in laws, rules, regulations, ordinances, codes or orders enacted subsequent to the preparation of such studies, reports or documents, or are due to any other causes beyond ENGINEER'S control. 3.1.4. Providing renderings or models for OWNER'S use. 3.1.5. Preparing documents for alternate bids requested by OWNER for Contractor(s)' work which is not executed or documents for out-of-sequence work. 3.1.6. Investigations and studies involving, but not limited to, detailed consideration of operations, maintenance and overhead expenses; providing value engineering during the course of design; the preparation of feasibility studies, cash flow and economic evaluations, rate schedules and appraisals; assistance in obtaining financing for the Project; evaluating processes available for licensing; assisting OWNER in obtaining process licensing; detailed quantity surveys of material, equipment and labor; and audits or inventories required in connection with construction performed by OWNER. 3.1.7. Furnishing services of independent professional associates and consultants for other than Basic Services (which include, but are not limited to, customary civil, structural, mechanical and electrical engineering and customary architectural design incidental thereto); and providing data or services of the types described in paragraph 4.4 when OWNER employs ENGINEER to provide such data or services in lieu of furnishing the same in accordance with paragraph 4.4. 3.1.8. Services during out-of-town travel required of ENGINEER other than visits to the site or OWNER'S office. 3.1.9. Assistance in connection with bid protests, rebidding or renegotiating contracts for construction, materials, equipment or services, except when such assistance is required to complete services called for in paragraph 2.4. 3.1.10. Preparation of operating, maintenance and staffing manuals to supplement Basic Services under paragraph 2.5.10. page 22 3.1.11. Preparing to serve or serving as a consultant or witness for OWNER in any litigation, arbitration or other legal or administrative proceeding involving the Project unless the ENGINEER is a defendant (except for assistance in consultations which is included as part of Basic Services. 3.1.12. Additional services in connection with the Project, including services which are to be furnished by OWNER in accordance with Section 4, and services not otherwise provided for in this Agreement. 3.2 SERVICES NOT REQUIRING ADVANCE AUTHORIZATION. When required by the Contract Documents in circumstances beyond ENGINEER'S control, ENGINEER shall furnish or obtain from others, as circumstances require during construction and without waiting for specific authorization from OWNER, Additional Services listed in paragraphs 3.2.1 through 3.2.5, inclusive. These services are not included as part of Basic Services except to the extent provided otherwise by attached Supplemental Agreement. ENGINEER shall advise OWNER promptly after starting any such additional services which will be paid for by OWNER. 3.2.1. Services in connection with work directive changes and change orders to reflect changes requested by OWNER if the resulting change in compensation for Basic Services is not commensurate with the additional services rendered. 3.2.2. Services in making revisions to Plans and Specifications occasioned by the acceptance of substitutions proposed by Contractor(s); and services after the award to each contract in evaluating and determining the acceptability of an unreasonable or excessive number of substitutions proposed by Contractor. 3.2.3. Services resulting from significant delays, changes or price increases occurring as a direct or indirect result of material, equipment or energy shortages. 3.2.4. Additional or extended services during construction made necessary by (1) work damaged by fire or other cause during construction, (2) a significant amount of defective or neglected work of any Contractor, (3) acceleration of the progress schedule involving services beyond normal working hours, and (4) default by any Contractor. 3.2.5. Services (other than Basic Services during the Operational Phase) in connection with any partial use of any part of the Project by OWNER prior to Substantial Completion. 4. OWNER'S PUBLIC IMPROVEMENT PROJECT RESPONSIBILITIES. OWNER shall do the following: 4.1 Designate in writing a person to act as OWNER'S representative with respect to the services to be rendered under this Agreement, such person shall have complete authority to transmit instructions, receive information, interpret and define OWNER'S policies and decisions with respect to ENGINEER'S services for the Project. 4.2 Provide criteria and information as to OWNER'S requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility and expandability, and any budgetary limitations; and furnish copies of design and construction standards OWNER will require to be included in the Plans and Specifications. page 23 4.3 Assist ENGINEER by placing at ENGINEER'S disposal all available information pertinent to the Project including previous reports and any other data relative to design or construction of the Project. 4.4 Furnish to ENGINEER as required for performance of ENGINEER'S Basic Services except to the extent provided otherwise by attached amendment, the following: 4.4.1. Data prepared by or services of others, including without limitation, borings, and subsurface explorations, hydrographic surveys, laboratory tests and inspections of samples, materials and equipment; 4.4.2. Appropriate professional interpretations of all the foregoing; 4.4.3. Environmental assessment and impact statements, if needed; 4.4.4. Property, boundary, easement, right-of-way, topographic and utility surveys; 4.4.5. Property descriptions; and 4.4.6. Zoning, deed and other land use restrictions; All of which ENGINEER may use and rely upon in performing services under this Agreement. 4.5 Provide engineering surveys or authorize ENGINEER to establish reference points for construction to enable Contractor(s) to proceed with the layout of the work. 4.6 Arrange for access to and make all provisions for ENGINEER to enter upon public and private property as required for ENGINEER to perform services under this Agreement. 4.7 Examine all studies, reports, sketches, Drawings, Specifications, proposals and other documents presented by ENGINEER. Obtain advice of an attorney, insurance counselor and other consultants as OWNER deems appropriate for such examination and render in writing decisions pertaining thereto within a reasonable time so as not to delay the services of ENGINEER. 4.8 Prepare applications and provide support for approvals and permits from all governmental authorities having jurisdiction over the Project and such approvals and consents from others as may be necessary for completion of the Project. 4.9 Provide such accounting, independent cost estimating and insurance counseling services as may be required for the Project, such legal services as OWNER may require or ENGINEER may reasonably request with regard to legal issues pertaining to the Project including any that may be raised by Contractor(s), such auditing service as OWNER may require to ascertain how or for what purpose any Contractor has used the monies paid under the construction contract, and such inspection services as OWNER may require to ascertain that Contractor(s) are complying with any law, rule, regulations, ordinance, code or order applicable to their furnishing and performing the work. 4.10 If OWNER designates a person to represent OWNER at the site who is not ENGINEER or ENGINEER'S agent or employee, the duties, responsibilities and limitations of authority of such other person and the affect thereof on the duties and responsibilities of ENGINEER and the Resident Project Representative (and any assistants) will be set forth in a supplemental agreement. page 24 4.11 If more than one prime contract is to be awarded for construction, materials, equipment and services for the entire Project, designate a person or organization to have authority and responsibility for coordinating the activities among the various prime contractors. 4.12 Furnish to ENGINEER data or estimated figures as to OWNER'S anticipated costs for services to be provided by others for OWNER so that ENGINEER may make the necessary findings to support opinions of probable Total Project Costs. 4.13 Attend the pre-bid meeting, bid opening, pre-construction meetings, construction progress and other job-related meetings and substantial completion inspections and final payment inspections. 4.14 Give prompt written notice to ENGINEER whenever OWNER observes or otherwise becomes aware of any development that affects the scope of timing of ENGINEER'S services, or any defect or nonconformance in the work of any Contractor. 4.15 Furnish, or direct ENGINEER to provide, Additional Services as stipulated in paragraph 3.1 of this Agreement or other services as required. 4.16 Require all Private Utilities with facilities in the OWNER’S right of way to: (a) Locate and mark said utilities upon request; (b) Relocate and/or protect said utilities as determined necessary to accommodate the proposed Work; (c) Submit a schedule of the necessary relocation/protection activities to the OWNER for review. 4.17 Bear all costs incident to compliance with the requirements of this Section 4. 5. PERIODS OF PROJECT SERVICE 5.1 The provisions of Section 6 and the various rates of compensation for ENGINEER'S services provided for elsewhere in this Agreement have been agreed to in anticipation of the orderly and continuous progress of the Project through completion of the Construction Phase. ENGINEER'S obligation to render services hereunder will extend for a period which may reasonably be required for the design, award of contracts, construction and initial operation of the Project including extra work and required extensions thereto. 5.2 The services called for in the Study and Report Phase will be completed and the Report submitted within the agreed period after written authorization to proceed with that phase of services which will be given by OWNER. 5.3 After acceptance by OWNER of the Study and Report Phase documents indicating any specific modifications or changes in the general scope, extent or character of the Project desired by OWNER, and upon written authorization from OWNER, ENGINEER shall proceed with the performance of the services called for in the Preliminary Design Phase and shall submit preliminary design documents and a revised opinion of probable Total Project Costs within the agreed period. 5.4 After acceptance by OWNER of the Preliminary Design Phase documents and revised opinion of probable Total Project Costs, indicating any specific modifications or changes in the page 25 general scope, extent or character of the Project desired by OWNER, and upon written authorization from OWNER, ENGINEER shall proceed with the performance of the services called for in the Final Design Phase; and shall deliver Contract Documents and a revised opinion of probable Total Project Costs for all work of Contractor(s) on the Project within the agreed period. 5.5 ENGINEER'S services under the Study and Report Phase, Preliminary Design Phase, and Final Design Phase, shall each be considered complete when the submissions for that phase have been accepted by OWNER. 5.6 After acceptance by OWNER of the ENGINEER'S Drawings, Specifications and other Final Design Phase documentation including the most recent opinion of probable Total Project Costs and upon written authorization to proceed, ENGINEER shall proceed with performance of the services called for in the Bidding or Negotiating phase. This Phase shall terminate and the services to be rendered thereunder shall be considered complete upon commencement of the Construction Phase or upon cessation of negotiations with prospective Contractor(s). 5.7 The Construction Phase will commence with the execution of the first prime contract to be executed for the work of the Project or any part thereof and will terminate upon written recommendation by ENGINEER of final payment on the last prime contract to be completed. Construction Phase services may be rendered at different times in respect of separate prime contracts if the Project involves more than one prime contract. 5.8 The Operational Phase will commence during the Construction Phase and will terminate upon the last of the following events: (1) one year after the date of Substantial Completion, as defined in the Contract Documents, if the last prime contract for construction, materials and equipment on which substantial completion is achieved; (2) after final payment to the Contractor(s); (3) after all known issues have been satisfactorily resolved. 5.9 If OWNER requests significant modifications or changes in the general scope, extent or character of the Project, the time of performance of ENGINEER'S services shall be adjusted equitably. 5.10 OWNER shall give prompt authorization to proceed or not proceed with any phase of services after completion of the immediately preceding phase. 5.11 In the event that the work designed or specified by ENGINEER is to be furnished or performed under more than one prime contract, or if ENGINEER'S services are to be separately sequenced with the work of one or more prime contractors (such as in the case of fast-tracking), OWNER and ENGINEER shall, prior to commencement of the Final Design Phase, develop a schedule for performance of ENGINEER'S services during the Final Design, Bidding or Negotiating and Construction Phases in order to sequence and coordinate properly such services as are applicable to the work under such separate contracts. 6. PAYMENTS TO ENGINEER 6.1 PAYMENT. For Project services, ENGINEER will be paid in accordance with the Supplemental Agreement between the parties for the Project. page 26 6.2 OTHER PROVISIONS CONCERNING PAYMENTS. 6.2.1. If OWNER fails to make any payment due ENGINEER for services and expenses within thirty five (35) days after receipt of ENGINEER'S statement therefor, the amounts due ENGINEER will be increased at the rate of one-half percent (1/2%) per month from said thirtieth day, and in addition, ENGINEER may, after giving seven (7) days' written notice to OWNER, suspend services under this Agreement until ENGINEER has been paid in full all amounts due for services, expenses and charges. 6.2.2. In the event of termination by OWNER under paragraph 8.1 upon the completion of any phase of the Basic Services, progress payments due ENGINEER for services rendered through such phase shall constitute total payment for such services. In the event of such termination by OWNER during any phase of the Basic Services, ENGINEER will be paid for services actually and necessarily rendered during that phase by ENGINEER'S principals and employees engaged directly on the Project, on the basis of ENGINEER'S Hourly Costs based upon the fee schedule on file with the City. In the event of any such termination, ENGINEER also will be reimbursed for the reasonable charges of independent professional associates and consultants employed by ENGINEER to render Basic Services and paid for all unpaid Additional Services and unpaid reimbursables. 6.2.3. Records of ENGINEER'S time pertinent to ENGINEER'S compensation under this Agreement will be kept in accordance with generally accepted accounting principles. Copies will be made available to OWNER at cost on request prior to final payment for ENGINEER'S services. 6.2.4. ENGINEER shall comply with Minnesota Statute § 471.425. ENGINEER must pay Subcontractor for all undisputed services provided by Subcontractor within ten (10) days of ENGINEER’S receipt of payment from OWNER. ENGINEER must pay interest of one and five- tenths percent (1.5%) per month or any part of a month to Subcontractor on any undisputed amount not paid on time to Subcontractor. The minimum monthly interest penalty payment for an unpaid balance of One Hundred Dollars ($100) or more is Ten Dollars ($10). 7. CONSTRUCTION COST AND OPINIONS OF COST 7.1 CONSTRUCTION COST. The construction cost of the entire Project (herein referred to as "Construction Cost") means the total cost to OWNER of those portions of the entire Project designed and specified by ENGINEER, but it will not include indirect costs such as ENGINEER'S compensation and expenses, the cost of land, rights-of-way, or compensation for or damages to, properties unless this Agreement so specifies, nor will it include OWNER'S legal, accounting, insurance counseling or auditing services, or interest and financing charges incurred in connection with the Project or the cost of other services to be provided by others to OWNER pursuant to paragraph 4. (Construction Cost is one of the items comprising Total Project Cost which is defined in paragraph 2.2.6). 7.2 OPINIONS OF COST. Since ENGINEER has no control over the cost of labor, materials, equipment or services furnished by others, or over the Contractor(s) methods of determining prices, or over competitive bidding or market conditions, ENGINEER'S opinions of probable Total Project Costs and Construction Cost page 27 provided for herein are to be made on the basis of ENGINEER'S experience and qualifications and represent ENGINEER'S best judgment as an experienced and qualified professional engineer, familiar with the construction industry; but ENGINEER cannot and does not guarantee that proposals, bids or actual Total Project or Construction Costs will not vary from opinions of probable cost prepared by ENGINEER. 8. GENERAL 8.1 INDEPENDENT CONTRACTOR. The City hereby retains the Engineer as an independent contractor upon the terms and conditions set forth in this Agreement. The Engineer is not an employee of the City and is free to contract with other entities as provided herein. Engineer shall be responsible for selecting the means and methods of performing the work. Engineer shall furnish any and all supplies, equipment, and incidentals necessary for Engineer's performance under this Agreement. City and Engineer agree that Engineer shall not at any time or in any manner represent that Engineer or any of Engineer's agents or employees are in any manner agents or employees of the City. Engineer shall be exclusively responsible under this Agreement for Engineer's own FICA payments, workers compensation payments, unemployment compensation payments, withholding amounts, and/or self-employment taxes if any such payments, amounts, or taxes are required to be paid by law or regulation. 8.2 TERMINATION. OWNER may terminate this Agreement and any Supplemental Agreement without cause by written notice delivered to the ENGINEER. Upon termination under this provision if there is no fault of the ENGINEER, the ENGINEER shall be paid for services rendered and reimbursable expenses until the effective date of termination. If however, the OWNER terminates the Agreement because the ENGINEER has failed to perform in accordance with this Agreement, no further payment shall be made to the ENGINEER, and the OWNER may retain another contractor to undertake or complete the work identified in the Contract Documents. If as a result, the OWNER incurs total costs for the work (including payments to both the present contractor and a future contractor) which exceed the not to exceed amount specified in the Contract Documents, if any, then the ENGINEER shall be responsible for the difference between the cost actually incurred and the Agreement amount. 8.3 DOCUMENTS, WORK PRODUCT, & INSTRUMENTS OF SERVICE. The work product of Consultant, including data, information, drawings, results, ideas, developments, plans, specifications, reports or inventions, regardless of format or media, which Consultant conceives or reduces to practice during the course of its performance under this Agreement are Instruments of Service, and Consultant shall retain an ownership and property interest therein (including the right of reuse at the discretion of the Consultant). Consultant grants to the City and irrevocable license to use such Instruments of Service as deemed necessary by the City. Consultant will furnish the City with electronic data versions of drawings, reports or other written documents (“Digital Data”) compatible with the City’s software if requested by the City and provide such information in hard copy form. In the event of any conflict between hard copy documents and the Digital Data, the hard copy document shall govern. The Digital Data shall be prepared in a format required by the City for its use. Any Digital Data submitted by the Consultant to the City is submitted for an acceptance period of 60 days. Any defects that the page 28 City discovers during this period and reports to the Consultant will be corrected by the Consultant at no extra charge. For correction of defects reported to the Consultant after the Acceptance Period, the City shall compensate Consultant on an hourly basis at Consultant’s billing rates. The City understands that the Digital Data is perishable and the City is responsible for maintaining it. All data collected, created, received, maintained, or disseminated, or used for any purposes in the course of the Consultant’s performance of the Agreement is governed by the Minnesota Government Data Practices Act, Minnesota Statutes 1984, Section 13.01, et seq. or any other applicable state statutes and state rules adopted to implement the Act, as well as state statutes and federal regulations on data privacy. The Consultant agrees to abide by these statutes, rules and regulations and as they may be amended. Consultant makes no representation that Instruments of Service provided for any specific project are suitable for reuse, modification or benefit of City or others on extensions of the Project, modifications or any other project. Any reuse or modification of Consultant’s Instruments of Service without written verification or adaption by Consultant, as appropriate for the specific purpose intended, will be at the City’s sole risk and without liability or legal exposure to Consultant. The City shall indemnify and hold harmless the Consultant from all claims, damages, losses and expenses, including attorneys’ fees, arising out of any reuse or modification of the Instruments of Service without the participation of the Consultant. 8.4 MINNESOTA GOVERNMENT DATA PRACTICES ACT. The ENGINEER must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to (1) all data provided by the City pursuant to this Agreement, and (2) all data, created, collected, received, stored, used, maintained, or disseminated by the ENGINEER pursuant to this Agreement. The ENGINEER is subject to all the provisions of the Minnesota Government Data Practices Act, including but not limited to the civil remedies of Minnesota Statutes Section 13.08, as if it were a government entity. In the event the ENGINEER receives a request to release data, the ENGINEER must immediately notify the OWNER. The OWNER will give the ENGINEER instructions concerning the release of the data to the requesting party before the data is released and the ENGINEER will be reimbursed as Additional Public Improvement Services by OWNER under Paragraph 3.1for ENGINEER’S reasonable costs in complying with a request to release data. ENGINEER agrees to defend, indemnify, and hold the OWNER, its officials, officers, agents, employees, and volunteers harmless from any claims resulting from ENGINEER’S officers’, agents’, owners’, partners’, employees’, volunteers’, assignees’ or subcontractors’ unlawful disclosure and/or use of protected data. The terms of this paragraph shall survive the cancellation or termination of this Agreement. 8.5 INSURANCE 8.5.1. ENGINEER shall secure and maintain such insurance as will protect ENGINEER from claims under the Worker's Compensation Acts, automobile liability, and from claims for bodily injury, death, or property damage which may arise from the performance of services under this Agreement. Such insurance shall be written for amounts not less than: Commercial General Liability $1,000,000 each occurrence/aggregate Automobile Liability $1,000,000 combined single limit Excess/Umbrella Liability $10,000,000 each occurrence/aggregate page 29 The OWNER shall be named as an additional insured on the general liability and umbrella policies on a primary and non-contributory basis. That part of the Excess/Umbrella Liability Insurance limit in excess of the required Excess/Umbrella coverage may be utilized to supplement and meet the required limits for Commercial General and Automobile Liability Insurance. 8.5.2. Professional Liability Insurance. The ENGINEER shall secure and maintain a professional liability insurance policy. Said policy shall insure payment of damages for legal liability arising out of the performance of professional services for the OWNER, in the insured's capacity as ENGINEER, if such legal liability is caused by a negligent act, error or omission of the insured or any person or organization for which the insured is legally liable. Said policy shall provide minimum limits of $1,000,000 with a deductible maximum of $250,000 unless the OWNER agrees to a high deductible. 8.5.3. Before commencing work the ENGINEER shall provide the OWNER a certificate of insurance evidencing the required insurance coverage in a form acceptable to OWNER. The certificate shall provide that such insurance will not be canceled, materially changed, or renewal refused until at least 10 days prior written notice has been given to ENGINEER and OWNER in the case of cancellation due to non-payment of premium and at least 30 days prior written notice for any other reason, or such longer notification periods as may be required by statute. Within three days of receipt of such written notice, ENGINEER shall provide a copy of the notice to OWNER. 8.5.4 ENGINEER shall procure and maintain insurance as required by and set forth in this Agreement. Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, the total liability, in the aggregate, of ENGINEER and ENGINEER’S officers, directors, members, partners, agents, employees, and Consultants to OWNER and anyone claiming by, though, or under OWNER for any and all claims, losses, costs, or damages whatsoever arising out of, resulting from, or in any way related to the Specific Project or the Task Order from any cause or causes, including but not limited to the negligence, professional errors or omissions, strict liability, breach of contract, indemnity obligations, or warranty express or implied, of ENGINEER or ENGINEER’S officers, directors, members, partners, agents, employees, or Consultants (hereafter “OWNER’S Claims”), shall not exceed the total insurance proceeds paid on behalf of or to Engineer by ENGINEER’S insurers in settlement or satisfaction of OWNER’S Claims under the terms and conditions of ENGINEER’S insurance policies applicable thereto (excluding fees, costs and expenses of investigation, claims adjustment, defense, and appeal), up to the amount of insurance required under this Agreement. 8.6 INDEMNIFICATION. The ENGINEER agrees, to the fullest extent permitted by law, to indemnify and hold OWNER harmless from any damage, liability, or cost (including reasonable attorney's fees and costs of defense) to the extent caused by ENGINEER’s acts, errors, or omissions in the performance of professional services under this Agreement and those of his or her subcontractors or anyone for whom the ENGINEER is liable. The OWNER agrees, to the fullest extent permitted by law, to indemnify and hold ENGINEER harmless from any damage, liability, or cost (including reasonable attorney's fees and costs of defense) to the extent caused by OWNER’s acts, errors, or omissions in the performance of page 30 professional services under this Agreement and those of his or her subcontractors or anyone for whom the OWNER is liable. 8.7 PROFESSIONAL STANDARDS. The standard of care for all professional engineering and related services performed or furnished by ENGINEER under this Agreement will be the care and skill ordinarily used by members of the subject profession practicing under similar circumstances at the same time and in the same locality. Engineer makes no warranties, express or implied, under this Agreement or otherwise, in connection with any services performed or furnished by Engineer. OWNER shall not be responsible for discovering deficiencies in the technical accuracy of ENGINEER’S services. ENGINEER shall correct deficiencies in technical accuracy without additional compensation, unless such corrective action is directly attributable to deficiencies in OWNER-furnished information. 8.8 AFFIRMATIVE ACTION. The Consultant shall not discriminate under the contract against any person in accordance with federal, state and local regulations. The Consultant shall not discriminate in employment practices on the basis of race, color, creed, religion, national origin, sex, age, marital status, public assistance status, veteran status, handicap or disability; that it has agreed to take affirmative action to recruit minorities, women and handicapped persons into its employment. The Consultant shall furnish documentation that shows they have adopted a written affirmative action policy. If during the term of the Agreement, it is discovered that the Consultant is not in compliance with the applicable regulations as aforesaid, or if the Consultant engages in any discriminatory practices, then the City, through the office, may cancel said Agreement as provided by the cancellation clause of the Agreement. 8.9 ETHICS. The Consultant certifies that they do not presently have an interest in real estate, development proposals or have a client with development proposals or real estate interests which are in the City or which will directly benefit or be affected by projects they are assigned. Furthermore, the Consultant agrees that the will not acquire interest in any real estate of development proposals or accept a contract with any client owning real estate or having a development proposal in the City or which will be directly affected or benefited by a project without first notifying and discussing said interest or contract with the City. The Consultant shall not assign any interest in the contract and shall not transfer any interest in the same without the prior written consent of the City. The Consultant shall not accept any private client or project which, by nature, places it in ethical conflict during its representation of the City. To remove any potential or actual conflict of interest, a consultant representing any private party client submitting a project or activity to the City shall not represent or review the project or activity on behalf of the City. The Consultant shall maintain records that reflect all revenues, costs incurred and services provided in the performance of the Agreement. The Consultant will also agree that the City, the State Auditor, or legislative authority, or any of their duly authorized representatives at any time during normal business hours, and as often as they may deem reasonably necessary, shall have access to and the right to examine, audit, excerpt, and transcribe any books, documents, papers, records, etc., and accounting procedures and practices of the Consultant which are relevant to the contract. The Consultant represents that it has, or will secure at its own expense, all personnel required in page 31 performing services under the Agreement. Any and all personnel of the Consultant or other persons, while engaged in the performance of any work or services required by the Consultant under the Agreement, shall have no contractual relationship with the City and shall not be considered employees of the City. The Consultant shall agree that nothing in the Agreement is intended or should be construed in any manner as creating or establishing the relationship of co- partners between the parties hereto or as constituting the Consultant as the agent, representative, or employee of the City for any purpose or in any manner whatsoever. The Consultant is to be and shall remain an independent contractor with respect to all services performed under the Agreement. 8.10 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall be construed to give any rights to anyone other than OWNER and ENGINEER. 8.11 CONTROLLING LAW/VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota, without giving effect to the principles of conflict of laws. All proceedings related to this contract shall be venued in the Dakota County District Court. 8.12 SUCCESSORS AND ASSIGNS 8.12.1. OWNER and ENGINEER each is hereby bound and the partners, successors, executors, administrators and legal representatives of OWNER and ENGINEER are hereby bound to the other party, to this Agreement and to the partners, successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements, and obligations of this Agreement. 8.12.2. Neither OWNER nor ENGINEER shall assign, sublet or transfer any rights under or interest in (including, but without limitation, monies that may become due or monies that are due) this Agreement without the written consent of the other, except to the extent that any assignment, subletting or transfer is mandated by law or the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Nothing contained in this paragraph shall prevent ENGINEER from employing such independent professional associates and consultants as ENGINEER may deem appropriate to assist in the performance of services hereunder. 8.12.3. Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than OWNER and ENGINEER, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the OWNER and ENGINEER and not for the benefit of any other party. 8.13 PROMPT PAYMENT TO SUBCONTRACTORS. Pursuant to Minn. Stat. §471.25, Subd. 4a, the Contractor must pay any subcontractor within ten (10) days of the Contractor's receipt of payment from the City for undisputed services provided by the subcontractor. The Contractor must pay interest of 1½ percent per month or any part of the month to the subcontractor on any undisputed amount not paid on time to the subcontractor. page 32 The minimum monthly interest penalty payment for an unpaid balance of $100.00 or more is $10.00. For an unpaid balance of less than $100.00, the Contractor shall pay the actual penalty due to the subcontractor. A subcontractor who prevails in a civil action to collect interest penalties from the contractor shall be awarded its costs and disbursements, including attorney's fees, incurred in bringing the action. 8.14 COPYRIGHT/PATENT INFRINGEMENT. ENGINEER shall indemnify OWNER for claims charging infringement of any copyright or patent by the reason of the use or adoption of any design, Drawings or Specifications supplied by ENGINEER, and ENGINEER shall hold harmless OWNER from loss or damage resulting therefrom. ENGINEER shall not be responsible for any claims charging infringement of any copyright or patent by reason of the use or adoption of and design, or Specification supplied by the OWNER. 8.15 NOTICES. Any notice required under this Agreement will be in writing, addressed to the appropriate party at its address on the signature page and given personally, by facsimile, by registered or certified mail postage prepaid, or by a commercial courier service. All notices shall be effective upon the date of receipt. 8.16 SURVIVAL. All express representations, waivers, indemnifications, and limitations of liability included in this Agreement will survive its completion or termination for any reason. 8.17 SEVERABILITY. Any provision or part of the Agreement held to be void or unenforceable under any Laws or Regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon OWNER and ENGINEER, who agree that the Agreement shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 8.18 WAIVER. A party’s non-enforcement of any provision shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. page 33 9. PRIOR AGREEMENT This Agreement supersedes all prior written and oral contracts and agreements except for the following: _______________________________________________________________________ ________________________________________________________________________ IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as of the day and year first above written. OWNER: ENGINEER: CITY OF MENDOTA HEIGHTS ____________________________________ BY: BY: Its Mayor Its ____________ AND Its City Clerk page 34 DATE: May 15, 2018 TO: Mayor, Council and City Administrator FROM: Kelly McCarthy, Chief of Police & Emergency Manager SUBJECT: Resolution 2018-36 to Support the Minnesota Department of Public Safety Grant Program INTRODUCTION The Council is asked to adopt a resolution which would, if successful, would allow for participation in traffic law enforcement programs. BACKGROUND The Mendota Heights Police Department participates in the Minnesota Department of Public Safety’s Toward Zero Deaths campaign with the other Dakota County agencies. The Mendota Heights Police Department puts a high priority on traffic enforcement and works regularly with neighborhoods, the Mendota Heights Traffic Safety Committee and the State of Minnesota to provide targeted enforcement. The fiscal agent overseeing this campaign enters into a grant agreement with the Minnesota Department of Public Safety and rotates between the Dakota County agencies every two years. The Mendota Heights Police Department is seeking to be the fiscal agent for the grant agreement for the time period from October 1, 2018 through September 30, 2020. This commitment would not require any additional funding and reimbursement for administrative duties could be requested through the grant. BUDGET IMPACT There is no impact on the budget. RECOMMENDATION If Council desires to implement the recommendation, pass a motion authorizing the Mayor to sign Resolution 2018-36 A RESOLUTION TO SUPPORT OF THE MINNESOTA DEPARTMENT OF PUBLIC SAFETY GRANT PROGRAM. page 35 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA RESOLUTION 2018- 36 A RESOLUTION SUPPORTING THE MINNESOTA DEPARTMENT OF PUBLIC SAFETY GRANT PROGRAM WHEREAS, the City of Mendota Heights, on behalf of its Police Department, desires to be the lead organization for the grant agreement with the Minnesota Department of Public Safety, for traffic safety enforcement projects during the period from October 1, 2018 through September 30, 2020; and WHEREAS, a resolution must be provided to the Office of Traffic Safety from the lead organization authorizing participation in the program; and WHEREAS, the Chief of Police, Kelly McCarthy, or her successor, is designated the authority to execute such agreements and amendments as are necessary to implement the project on behalf of the Mendota Heights Police Department and to be the fiscal agent and administer the grant. NOW THEREFORE BE IT RESOLVED, the Mendota Heights City Council does hereby enter into a grant agreement with the Minnesota Department of Public Safety, for traffic safety enforcement projects during the period from October 1, 2018 through September 30, 2020. Adopted by the City Council of the City of Mendota Heights this fifteenth day of May, 2018. CITY COUNCIL CITY OF MENDOTA HEIGHTS ___________________________ Neil Garlock, Mayor ATTEST ______________________________ Lorri Smith, City Clerk page 36 Request for City Council Action MEETING DATE: May 15, 2018 TO: Mayor and City Council, City Administrator FROM: Tim Benetti, Community Development Director SUBJECT: Resolution Requesting Extension to Complete the 2040 “Decennial” Comprehensive Plan Update Submittal to the Metropolitan Council Introduction The City Council is being asked to approve and adopt a resolution requesting additional time within which to complete its 2040 “Decennial” Comprehensive Plan Update; and authorize the city administrator to submit an application for such extension to the Metropolitan Council with a detailed timetable and plan for completing the review and amendment. Background Per Minnesota Statutes Section 473.864, local governmental units must review and amend their comprehensive plans and their fiscal devices and official controls at least once every ten years to ensure comprehensive plans conform to the metropolitan system plans. Minnesota Statutes 473.858 and 473.864 also require local governmental units to complete their reviews by December 31, 2018; however, the law also authorizes the Metropolitan Council to grant extensions to local government unit’s additional time within which to complete their plan review and amendments. As the Council is aware, the city is currently in the process of preparing and completing its 2040 Comprehensive Plan. However, due to new staff addition in 2017; some pressing land use/development matters through most of 2017, a late start last year by our planning consultants, and a request to add more information related to natural resources, the city is now requesting an extension to the Metropolitan Council in order to have more time to fully review, prepare and complete this plan. The Council should be aware that these types of extension requests are somewhat common and expected from many metropolitan government units; and the Met Council typically does not deny or reject most local government’s request for such extensions. Recommendation Staff recommends that the Mendota Heights City Council approve and adopt RESOLUTION 2018-37, REQUESTING ADDITIONAL TIME WITHIN WHICH TO COMPLETE COMPREHENSIVE PLAN “DECENNIAL” REVIEW AND UPDATE OBLIGATIONS FOR THE CITY. Action Required The action requires a simple majority vote. page 37 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA RESOLUTION 2018 - 37 RESOLUTION REQUESTING ADDITIONAL TIME WITHIN WHICH TO COMPLETE 2040 COMPREHENSIVE PLAN “DECENNIAL” REVIEW AND UPDATE OBLIGATIONS FOR THE CITY OF MENDOTA HEIGHTS WHEREAS, Minnesota Statutes section 473.864 requires local governmental units to review and, if necessary, amend their entire comprehensive plans and their fiscal devices and official controls at least once every ten years to ensure comprehensive plans conform with metropolitan system plans and ensure fiscal devices and official controls do not conflict with comprehensive plans; and WHEREAS, Minnesota Statutes sections 473.858 and 473.864 require local governmental units to complete their “decennial” reviews by December 31, 2018; and WHEREAS, Minnesota Statutes section 473.864 authorizes the Metropolitan Council to grant extensions to local governmental units to allow local governmental units additional time within which to complete the “decennial” review and amendments; and WHEREAS, any extensions granted by the Metropolitan Council must include a timetable and plan for completing the review and amendment; and WHEREAS, at its January 10, 2018 meeting the Metropolitan Council authorized its staff to administratively review and grant extensions if extension requests are submitted by May 31, 2018; and WHEREAS, extensions for completing decennial updates do not change any due dates for surface water management plans or water supply plans; and WHEREAS, the City will not be able to complete its “decennial” review by December 31, 2018 for the following reasons: changes in City staff in 2017 delayed the start and progress on the comprehensive plan; unexpected Contract Planner delays; community interest in key planning issues has resulted in the City Council taking more time to thoroughly explore these issues; and therefore more time is needed to adequately complete the plan. WHEREAS, the City Council finds it is appropriate to request from the Metropolitan Council an extension so the City can have additional time to complete and submit to the Metropolitan Council for review an updated comprehensive plan and amend its fiscal devices and official controls. page 38 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF MENDOTA HEIGHTS, MINNESOTA, AS FOLLOWS: 1. The City Administrator is directed to submit to the Metropolitan Council no later than May 31, 2018 a letter requesting an extension to April 1, 2019. 2. The City Administrator must include with the request a reasonably detailed timetable and plan for completing the review and amendment by April 1, 2019. Adopted by the City Council of the City of Mendota Heights this 15th day of May, 2018. CITY COUNCIL CITY OF MENDOTA HEIGHTS ________________________________ Neil Garlock, Mayor ATTEST: ________________________________ Lorri Smith, City Clerk page 39 2040 COMP PLAN EXTENSION REQUEST LOCAL PLANNING HANDBOOK Please send your cPmpleted request form and accompanying Resolution via email or mail to the Reviews Coordinator at the Metropolitan Council by May 31, 2018. Your responses to the following questions will provide the Metropolitan Council with information needed to review your extension request. 1.Please provide the following information: Community Name Contact Person Request Date Phone Number Email Address 2. PLANNING PROCESS TIMELINE: Please provide the target dates for each step of the planning process identified below. If you have already completed a step, indicate “completed” with the date in the table. Process Step Target Date Completion of draft plan text and mapping Initiation of 6-month review/comment period by adjacent jurisdictions, affected special districts, and school districts Public hearing date City Council / Town Board / County Board action Date of plan submission to the Metropolitan Council Completion of fiscal devises and official controls review/amendment 3. PLANNING ISSUES: Please identify the issue(s) below that are contributing to the need for the requested extension. F Staff workload F Contract planner delays F Issues affecting adjacent communities F Data/mapping/GIS F Area development or redevelopment plan(s) in process F Planning Commission/City Council/Board member concerns F Population, household, employment forecast issues F Sewer flow forecast issues F MUSA/Growth staging plan F Public participation process F Density policy issues F Community Designation considerations F Development of plan components: {Existing Land Use {Future Land Use {Housing {Surface Water Management {Transportation {Wastewater {Parks and Trails {Water Supply {Implementation {Mississippi River Corridor Critical Area (MRCCA) {Other Continue to next page City of Mendota Heights Tim Benetti, Community Development Director May 16, 2018 (651) 255-1142 timb@mendota-heights.com July 13, 2018 August 1, 2018 July 24, 2018 January/February 2019 April 1, 2019 December 31, 2019 Natrual Resources Plan ✔ ✔ ✔ ■ ■ page 40 4. Mark all that apply to your community. F Planning Grant recipient F Mapping Services requested 5. ADDITIONAL INFORMATION: Please provide explanation of the planning issues checked on the previous page. Include a realistic appraisal of your community’s ability to submit your updated plan for review by indicated deadline, as well as the subsequent review/amendment of fiscal devices and official controls. Please contact your Sector Representative if you need any assistance. Metropolitan Council 390 Robert Street North Saint Paul, MN 55101 metrocouncil.org Main: 651.602.1000 TTY: 651.291.0904 Public Information: 651.602.1500 public.info@metc.state.mn.us LOCAL PLANNING HANDBOOK February 2018 page 41 5/11/2018 Mendota Heights Building Activity Report Mike Andrejka, Building Official April 1, 2018 thru April 30, 2018 January 1, 2018 thru April 30, 2018 January 1, 2017 thru April 30, 2017 January 1, 2016 thru April 30, 2016 Building Permit No.Valuation Fee Collected Building Permit No.Valuation Fee Collected Building Permit No.Valuation Fee Collected Building Permit No.Valuation Fee Collected SFD 0 -$ $0.00 SFD 3 1,717,925.00$ $18,856.62 SFD 4 1,920,000.00$ $21,337.81 SFD 2 972,850.00$ 11,049.53$ Apartment 0 -$ $0.00 Apartment 0 -$ $0.00 Apartment 1 4,523,000.00$ $33,080.62 Apartment 0 -$ -$ Townhouse 2 450,000.00$ $4,516.88 Townhouse 6 1,146,000.00$ $13,438.13 Townhouse 2 450,000.00$ $4,516.88 Townhouse 6 1,465,000.00$ 16,170.54$ Condo 0 -$ $0.00 Condo 0 -$ $0.00 Condo 0 -$ $0.00 Condo 0 -$ -$ Misc 38 675,184.60$ 9,348.09$ Misc 128 2,336,404.47$ 32,582.72$ Misc 161 1,892,579.16$ 29,294.81$ Misc 146 2,248,951.56$ 31,229.84$ Commercial 0 -$ $0.00 Commercial 2 5,250,960.00$ $38,287.14 Commercial 10 672,880.00$ $10,614.31 Commercial 10 1,313,255.00$ 13,920.09$ Sub Total 40 1,125,184.60$ 13,864.97$ Sub Total 139 10,451,289.47$ 103,164.61$ Sub Total 178 9,458,459.16$ 98,844.43$ Sub Total 164 6,000,056.56$ 72,370.00$ Trade Permit No.Valuation Fee Collected Trade Permit No.Valuation Fee Collected Trade Permit No.Valuation Fee Collected Trade Permit No.Valuation Fee Collected Plumbing 21 $2,009.68 Plumbing 86 $8,163.22 Plumbing 53 $4,343.13 Plumbing 79 7,202.25$ Water 0 $0.00 Water 0 $0.00 Water 0 $0.00 Water 1 10.00$ Sewer 4 $300.00 Sewer 17 $1,275.00 Sewer 13 $988.00 Sewer 9 675.00$ Mechanical 48 $4,314.86 Mechanical 180 397.00$ $17,329.39 Mechanical 108 $12,539.81 Mechanical 113 9,875.09$ Sub Total 73 6,624.54$ Sub Total 283 26,767.61$ Sub Total 174 $17,870.94 Sub Total 202 17,762.34$ License No.Valuation Fee Collected Licenses No.Valuation Fee Collected Licenses No.Valuation Fee Collected Licenses No.Valuation Fee Collected Contractor 10 $500.00 Contractor 197 $9,850.00 Contractor 220 $11,000.00 Contractor 207 10,350.00$ Total 123 1,125,184.60$ 20,989.51$ Total 619 10,451,289.47$ 139,782.22$ Total 572 9,458,459.16$ 127,715.37$ Total 573 6,000,056.56$ 100,482.34$ NOTE: All fee amounts exclude SAC, WAC and State Surcharge. Amounts shown will reflect only permit, plan review fee and valuation totals page 42 page 43 page 44 page 45 page 46 page 47 page 48 page 49 page 50 page 51 page 52 page 53 DATE: May 15, 2018 TO: Mayor and City Council FROM: Mark McNeill, City Administrator SUBJECT: Presentation of Jerry Murphy Community Service Award COMMENT: INTRODUCTION The second annual Jerry Murphy Community Service Awards will be presented at the May 15th City Council meeting. BACKGROUND The purpose of this award is to recognize individuals who have been selected by the Award Committee as being outstanding volunteers in the Mendota Heights community, in the spirit of the contributions of long-time Police Reservist and volunteer Garold “Jerry” Murphy. Jerry served on the Police Department for more than 48 years, as a member of the Civil Defense team, a reserve officer, and then as a licensed part-time Police Officer. Over the years Jerry rose to the rank of Captain of the Police Reserves program, and served as its coordinator. He was instrumental in forming that group into what it is today—he set the rules and guidelines, and shared his wisdom and expertise about what it took to be an outstanding volunteer in the community. Following his death on November 2, 2015, the City established an annual award to commemorate the community service work that Jerry did, by recognizing outstanding volunteers in the Mendota Heights community. A selection committee made up of elected officials, staff, and members of the community solicited nominations. The Committee selected the following winners for 2018: Susan Light and Cindy Johnson—Sue and Cindy have given much to Mendota Heights as certified Master Gardeners. They were instrumental in helping to get Mendota Heights designated as a “Pollinator Friendly” community. page 54 Their interaction with the City began in 2013 with their design of a pollinator-friendly landscaping project during a reconstruction of Victoria Road. They have also provided hands-on assistance to City staff and community volunteers for pollinator friendly plantings at City Hall, education for the City’s Public Works Department for pollinator friendly programs in the parks system, and similar educational seminars for members of the public. Ron Katzenmaier—Ron served for 17 years on the Mendota Heights Fire Department. During much of that time he led the fire prevention and education activities of the Fire Department. He was instrumental in the creation of the Mendota Heights Fire Department Reserve program, and continues to serve the community as Captain of the Fire Reserves. A public reception honoring these individuals will be held in the City Hall lobby at beginning 6:15 PM preceding the May 15th Council meeting. RECOMMENDATION The Council should recognize Susan Light, Cindy Johnson, and Ron Katzenmaier as the 2018 recipients of the annual Garold “Jerry” Murphy Community Service Award. _______________________ Mark McNeill City Administrator page 55 Request for City Council Action DATE: May 15, 2018 TO: Mayor, City Council, and City Administrator FROM: Lorri Smith, City Clerk SUBJECT: Ordinance 522 Amending City Code Section 3-2 Tobacco Sales COMMENT: Introduction The Council is asked to consider the adoption of Ordinance 522 Amending City Code 3-2, prohibiting the sale of flavored tobacco products in all licensed tobacco establishments in Mendota Heights, with the exception of the flavors of tobacco, mint, menthol, and wintergreen. Background At the March 20, 2018 Council meeting, the Council heard from representatives from the Dakota County Public Health Department and ALMAS, a student group from Henry Sibley High School about the negative effects that flavored tobacco and tobacco products have on persons under 18 years of age. After hearing the presentation and Council discussion, the Council directed staff to bring a proposed ordinance to a Council Work Session for discussion. On April 3, 2018, the Council met in a work session to discuss the proposed changes. The Council directed staff to prepare an ordinance that would prohibit the sale of flavored tobacco products in all licensed establishments, excluding the flavors of tobacco, mint, menthol, and wintergreen. The Council also directed staff to meet with the license holders to explain the proposed changes and hear their concerns. On April 6, 2018, city staff notified the six licensed tobacco establishments of the proposed City Code changes to be considered at the May 15, 2018 Council meeting. Staff invited the licensees to meet with city staff on April 24, 2018, to discuss the proposed changes and answer their questions. One representative from SuperAmerica, and another from an association representing neighborhood businesses attended the meeting and expressed their concerns. Although the attendees stated they do not argue the negative health impacts tobacco, the concerns they shared included that a ban would: - hurt both the store and the city of Mendota Heights - would drive customers to another city - would put Mendota Heights’ stores at a disadvantage - would decrease their stores’ sales of other items that a customer might purchase - no one has studied the effectiveness of this policy - takes this product away from adults who may wish to purchase it - urged the Council to look to the State of MN to make a change and not isolate Mendota Heights stores page 56 In addition to prohibiting the sale of flavored tobaccos, the proposed changes also update several other sections of the City Code: - adds the language of ‘electronic delivery device’ throughout, along with a definition - adds a definition for ‘cigar’ - adds a definition for ‘flavored product’ - deletes the definition for ‘minor’ since this was replaced with ‘persons under 18 years of age’ throughout - adds a definition for ‘sale’ - amends the Penalties section (3-2-12) to be consistent with State Statute 461.12 - makes the prohibition of flavored tobacco products effective September 1, 2018. Recommendation Based on previous direction of the City Council, staff recommends the Council adopt Ordinance 522 Amending City Code Section 3-2 Tobacco Sales, and approve the summary publication. Action Required If the Council concurs, it should approve Ordinance 522: AN ORDINANCE AMENDING CITY CODE SECTION 3-2 TOBACCO SALES Adoption of Ordinance 522 requires a 3/5th vote. Adoption of the summary publication requires a 4/5th vote of the council. page 57 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA ORDINANCE NO. 522 AN ORDINANCE AMENDING CITY CODE SECTION 3-2 TOBACCO SALES The City Council of the City of Mendota Heights, Minnesota, does hereby ordain: Section 1. Section 3-2 of the City Code shall be amended by the following language: Chapter 2 TOBACCO SALES 3-2-1: PURPOSE: 3-2-2: DEFINITIONS AND INTERPRETATION: 3-2-3: LICENSE: 3-2-4: LICENSE FEE: 3-2-5: GROUNDS FOR DENIAL OF LICENSE: 3-2-6: PROHIBITED SALES; ILLEGAL ACTS: 3-2-7: SELF-SERVICE SALES: 3-2-8: RESPONSIBILITY FOR EMPLOYEES: 3-2-9: COMPLIANCE CHECKS AND INSPECTIONS: 3-2-10: CIVIL ENFORCEMENT: 3-2-11: NOTICE OF VIOLATION: 3-2-12: PENALTIES: 3-2-13: HEARINGS AND APPEALS: 3-2-14: SEVERABILITY: 3-2-1: PURPOSE: Because the city recognizes that many persons under the age of eighteen (18) years purchase or otherwise obtain, possess and use tobacco, tobacco products, tobacco related devices, electronic delivery devices, and nicotine or lobelia delivery devices, and such sales, possession and use are violations of both state and federal laws; because marketing and public health research and tobacco industry documents reveal that tobacco companies have used fruit, candy, and alcohol flavors as a way to target youth and young adults persons under 18 years of age and that the presence of flavors in tobacco products can make it more difficult for youth, young adult, persons under 18 years of age and adult tobacco users to quit; and because studies, which the city hereby accepts and adopts, have shown that most smokers begin smoking before they page 58 have reached the age of eighteen (18) years and that those persons who reach the age of eighteen (18) years without having started smoking are significantly less likely to begin smoking; and because smoking has been shown to be the cause of several severe health problems which subsequently place a financial burden on all levels of government; this chapter shall be intended to regulate the sale, possession and use of tobacco, tobacco products, tobacco related devices, electronic delivery devices, and nicotine or lobelia delivery devices for the purpose of enforcing and furthering existing laws, to protect minorspersons under 18 years of age against the serious effects associated with the illegal use of tobacco, tobacco products, tobacco related devices, electronic delivery devices, and nicotine or lobelia delivery devices, and to further the official public policy of the state in regard to preventing young peoplepersons under 18 years of age from starting to smoke use tobacco products as stated in Minnesota statutes section 144.391, public policy. (Ord. 458, 12-3-2013) 3-2-2: DEFINITIONS AND INTERPRETATION: Except as may otherwise be provided or clearly implied by context, all terms shall be given their commonly accepted definitions. The singular shall include the plural and the plural shall include the singular; the masculine shall include the feminine and vice versa; the term "shall" means mandatory and the term "may" means permissive. The following terms shall have the definitions given to them: CIGAR: Any roll of tobacco that is wrapped in tobacco leaf or in any other substance containing tobacco, with or without a tip or mouthpiece, which is not a cigarette as defined in Minn. Stat. § 297F.01, subd. 3, as may be amended from time to time. COMPLIANCE CHECKS: The system the city uses to investigate and ensure that those authorized to sell tobacco, tobacco products, tobacco related devices, and nicotine or lobelia delivery devicestobacco, tobacco products, tobacco related devices, electronic delivery devices, and nicotine or lobelia delivery devices are following and complying with the requirements of this chapter. Compliance checks shall involve the use of minorspersons under 18 years of age as authorized by this chapter. Compliance checks shall also mean the use of minors persons under 18 years of age who attempt to purchase tobacco, tobacco products, tobacco related devices, or nicotine or lobelia delivery devices for educational, research and training purposes as authorized by state and federal laws. Compliance checks may also be conducted by other units of government for the purpose of enforcing appropriate federal, state or local laws and regulations relating to tobacco, tobacco products, tobacco related devices, and nicotine or lobelia delivery devicestobacco, tobacco products, tobacco related devices, electronic delivery devices, and nicotine or lobelia delivery devices. ELECTRONIC DELIVERY DEVICES: Any product containing or delivering nicotine, lobelia, or any other substance intended for human consumption through the inhalation of aerosol or vapor from the product. Electronic delivery device includes, but is not limited to, devices manufactured, marketed, or sold as e-cigarettes, e-cigars, e-pipes, vape pens, mods, tank systems, or under any other product name or descriptor. Electronic delivery device includes any component part of a product, whether or not marketed or sold separately. Electronic delivery device does not include any product that has been approved or certified by the United States Food and Drug Administration page 59 for sale as a tobacco-cessation product, as a tobacco-dependence product, or for other medical purposes, and is marketed and sold for such an approved purpose. FLAVORED PRODUCT: Any tobacco, tobacco product, tobacco related device, electronic delivery device, and nicotine or lobelia delivery device that contains a taste or smell, other than the taste or smell of tobacco, menthol, mint, or wintergreen that is distinguishable by an ordinary consumer either prior to or during the consumption of the product, including, but not limited to, any taste or smell relating to chocolate, cocoa, vanilla, honey, fruit, or any candy, dessert, alcoholic beverage, herb, or spice. A public statement or claim, whether express or implied, made or disseminated by the manufacturer of a tobacco, tobacco product, tobacco related device, electronic delivery device, and nicotine or lobelia delivery device licensed product, or by any person authorized or permitted by the manufacturer to make or disseminate public statements concerning such products, that a product has or produces a taste or smell other than tobacco, menthol, mint, or wintergreen, will constitute presumptive evidence that the product is a flavored product. INDIVIDUALLY PACKAGED: The practice of selling any tobacco or tobacco product wrapped individually for sale. Individually wrapped tobacco and tobacco products shall include, but not be limited to, single cigarette packs, single bags or cans of loose tobacco in any form, and single cans or other packaging of snuff or chewing tobacco. Cartons or other packaging containing more than a single pack or other container as described in this definition shall not be considered "individually packaged". INDOOR AREA: All space between a floor and a ceiling that is bounded by walls, doorways, or windows, whether open or closed, covering more than fifty percent (50%) of the combined surface area of the vertical planes constituting the perimeter of the area. A wall includes any retractable divider, garage door, or other physical barrier, whether temporary or permanent. LOOSIES: The common term used to refer to a single or individually packaged cigarette or any other tobacco product that has been removed from its packaging and sold individually. The term "loosies" does not include individual cigars with a retail price, before any sales taxes, of more than two dollars ($2.00) per cigar. MINOR: Any person who has not yet reached the age of eighteen (18) years. MOVABLE PLACE OF BUSINESS: Any form of business operated out of a truck, van, automobile, or other type of vehicle or transportable shelter and not a fixed address storefront or other permanent type of structure authorized for sales transactions. NICOTINE OR LOBELIA DELIVERY DEVICES: Any product containing or delivering nicotine or lobelia intended for human consumption, or any part of such a product, that is not tobacco as defined in this section, not including any product that has been approved or otherwise certified for legal sale by the United States food and drug administration for tobacco use cessation, harm reduction, or for other medical purposes, and is being marketed and sold solely for that approved purpose. RETAIL ESTABLISHMENT: Any place of business where tobacco, tobacco products, page 60 tobacco related devices, electronic delivery device, or nicotine or lobelia delivery devices are available for sale to the general public. The phrase shall include, but not be limited to, grocery stores, convenience stores, restaurants, and drugstores. SALE: Any transfer of goods for money, trade, barter or other consideration. SELF-SERVICE MERCHANDISING: Open displays of tobacco, tobacco products, tobacco related devices, or nicotine or lobelia delivery devices in any manner where any person shall have access to the tobacco, tobacco products, tobacco related devices, or nicotine or lobelia delivery devices, without the assistance or intervention of the licensee or the licensee's employee. Such assistance or intervention shall involve the actual physical exchange of the tobacco, tobacco product, tobacco related device, electronic delivery device, or nicotine or lobelia delivery devices between the customer and the licensee or employee. Self-service sales are interpreted as being any sale where there is not an actual physical exchange of the product between the clerk and the customer. "Self-service merchandising" shall not include vending machines. SMOKING: Inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated product, whether natural or synthetic, containing, made, or derived from nicotine, tobacco, marijuana, or other plant, that is intended for inhalation. Smoking also includes carrying or using an activated electronic delivery device.Inhaling or exhaling smoke from any lighted or heated cigar, cigarette, pipe, or any other lighted or heated tobacco or plant product. Smoking also includes carrying a lighted or heated cigar, cigarette, pipe, or any other lighted or heated tobacco or plant product intended for inhalation. TOBACCO OR TOBACCO PRODUCTS: Tobacco and tobacco products includes cigarettes and any product containing, made, or derived from tobacco that is intended for human consumption, whether chewed, smoked, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, or any component, part, or accessory of a tobacco product; cigars; pipe tobacco; snuff, fine cut or other chewing tobacco; cheroots; stogies; perique; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff flour; cavendish; shorts; plug and twist tobaccos; dipping tobaccos; refuse scraps, clippings, cuttings, and sweepings of tobacco, and other kinds or forms of tobacco. Tobacco excludes any tobacco product that has been approved by the United States food and drug administration for sale as a tobacco cessation product, as a tobacco dependence product, or for other medical purposes, and is being marketed and sold solely for such an approved purpose. TOBACCO RELATED DEVICES: Include aAny tobacco product as well as a pipe, rolling papers, or other device intentionally designed or intended to be used in a manner which enables the chewing, sniffing, or smoking of tobacco or tobacco products. Tobacco related devices also includes components of tobacco-related devices which may be marketed or sold separately. VENDING MACHINE: Any mechanical, electric or electronic, or other type of self- service device which, upon the insertion of money, tokens or other form of payment, dispenses the tobacco, tobacco product or tobacco related devices and includes page 61 vending machines equipped with manual, electric or electronic locking devices. (Ord. 458, 12-3-2013) 3-2-3: LICENSE: A. License Required: No person shall sell or offer to sell any tobacco, tobacco products or tobacco related device, electronic delivery device, or nicotine or lobelia delivery device without first having obtained a license to do so from the city clerk or other such city office which the city council may from time to time designate to carry out the duties of the city clerk set forth in this chapter. B. Application: An application for a license to sell tobacco, tobacco products, tobacco related devices, electronic delivery device, or nicotine or lobelia delivery devices shall be made on a form provided by the city. The application shall contain the full name of the applicant, the applicant's residential and business addresses and telephone numbers, the name of the business for which the license is sought, and any additional information the city deems necessary. Upon receipt of a completed application, the city clerk shall forward the application to the city council for action at its next regularly scheduled city council meeting. If the city clerk shall determine that an application is incomplete, he or she shall return the application to the applicant with notice of the information necessary to make the application complete. C. Action: The city council may either approve or deny the license, or it may delay action for a reasonable period of time as necessary to complete any investigation of the application or the applicant it deems necessary. If the city council approves the license, the city clerk shall issue the license to the applicant. If the city council denies the license, notice of the denial shall be given to the applicant along with notice of the applicant's right to appeal the city council's decision. D. Term: All licenses issued under this section shall expire on December 31 of the year of issuance. E. Revocation Or Suspension: Any license issued under this section may be revoked or suspended as provided in this chapter. F. Transfers: All licenses issued under this section shall be valid only on the premises for which the license was issued and only for the person to whom the license was page 62 issued. No transfer of any license to another location or person shall be valid without the prior approval of the city council. G. Movable Place Of Business: No license shall be issued to a movable place of business. Only fixed location businesses shall be eligible to be licensed under this section. H. Display: All licenses shall be posted and displayed in plain view of the general public on the licensed property. I. Renewals: The renewal of a license issued under this section shall be handled in the same manner as the original application. The request for a renewal shall be made at least thirty (30) days but no more than sixty (60) days before the expiration of the current license. J. Issuance As Privilege And Not A Right: The issuance of a license under this section shall be considered a privilege and not an absolute right of the applicant and shall not entitle the holder to an automatic renewal of the license. K. Smoking Not Permitted: Smoking shall not be permitted and no person shall smoke within the indoor area of any establishment with a retail tobacco license. Smoking for the purposes of sampling tobacco, tobacco products, tobacco related devices, and nicotine or lobelia delivery devicestobacco, tobacco products, tobacco related devices, electronic delivery devices, and nicotine or lobelia delivery devices is prohibited. L. E-Cigarettes: Smoking of e-cigarettes, or electronic delivery devices as defined herein, is prohibited in any area that Minnesota state statute restricts the smoking of tobacco products with the exception of businesses licensed to sell on-sale liquor. (Ord. 458, 12-3-2013) 3-2-4: LICENSE FEE: No license shall be issued under this chapter until the appropriate license fee is paid in full. The license fee will not be prorated for any applicants. The fee for a license under page 63 this chapter shall be set in accordance with a fee schedule adopted by the city council. (Ord. 458, 12-3-2013) 3-2-5: GROUNDS FOR DENIAL OF LICENSE: The following shall be grounds for denying the issuance or renewal of a license under this chapter. The following list is not exhaustive or exclusive: A. The applicant is under the age of eighteen (18) years. B. The applicant has been convicted within the past five (5) years of any violation of a federal, state, or local law, ordinance provision, or other regulation relating to tobacco, tobacco products, tobacco related devices, electronic delivery devices, or nicotine or lobelia delivery devices. C. The applicant or license holder has had a license to sell tobacco, tobacco products or tobacco related devices, electronic delivery devices, or nicotine or lobelia delivery devices revoked within the preceding twelve (12) months of the date of application or is subject to penalties under section 3-2-12 of this chapter. D. The applicant or license holder fails to provide any of the information required on the application or provides false or misleading information. E. The applicant or license holder is prohibited by federal, state or other local law, ordinance or regulation from holding such a license. F. The applicant or license holder has outstanding fines, penalties, or property taxes owed to the city. (Ord. 458, 12-3-2013) 3-2-6: PROHIBITED SALES; ILLEGAL ACTS: A. Sales Prohibited: 1. It shall be a violation of this chapter for any person to sell, offer for sale, give away, furnish or otherwise deliver tobacco, tobacco products, tobacco related devices, electronic delivery devices, or nicotine or lobelia delivery devices: page 64 a. To any person under the age of eighteen (18) years. b. By means of any type of vending machine. c. By means of self-service merchandising whereby the customer does not need to make a verbal or written request to an employee of the licensed premises in order to receive the tobacco, tobacco product, tobacco related device, electronic delivery device, or nicotine or lobelia delivery device and whereby there is not a physical exchange of the tobacco, tobacco product, tobacco related device, or nicotine or lobelia delivery device between the licensee or the licensee's employee, and the customer. All tobacco, tobacco products, tobacco related devices, and nicotine or lobelia delivery devicestobacco, tobacco products, tobacco related devices, electronic delivery devices, and nicotine or lobelia delivery devices shall be stored behind the counter. d. By means of "loosies" as defined in section 3-2-2 of this chapter. e. Containing opium, morphine, jimsonweed, belladonna, strychnos, cocaine, marijuana, or other deleterious, hallucinogenic, toxic or controlled substances except nicotine and other substances found naturally in tobacco or added as part of an otherwise lawful manufacturing process. f. By any other means, to any other person, in any other manner or form prohibited by federal, state or other local law, ordinance provision or other regulation. B. Flavored products: No person shall sell or offer for sale any flavored product in any retail establishment as defined in section 3-2-2 of this chapter. BC. Illegal Acts: Unless otherwise provided, the following acts shall be violations of this chapter: 1. Sales: For any person to sell or otherwise provide any tobacco, tobacco product, tobacco related device, electronic delivery device, or nicotine or lobelia delivery device to a minorperson under 18 years of age. 2. Possession: For any minorperson under 18 years of age to have in his or her possession any tobacco, tobacco product, tobacco related device, or nicotine or lobelia delivery device. This subsection shall not apply to minors persons under 18 years of age lawfully involved in a compliance check. 3. Use: For any minor person under 18 years of age to smoke, chew, sniff or otherwise use any tobacco, tobacco product, tobacco related device, or nicotine or lobelia delivery device. 4. Procurement: For any minor person under 18 years of age to purchase or attempt to purchase or otherwise obtain any tobacco, tobacco product, tobacco related device, or nicotine or lobelia delivery device, and it shall be a violation of this chapter for any person to purchase or otherwise obtain such items on behalf of a minorperson under 18 years of age. It shall further be a violation for any person to coerce or attempt to coerce page 65 a minorperson under 18 years of age to illegally purchase or otherwise obtain or use any tobacco, tobacco product, tobacco related device, electronic delivery device, or nicotine or lobelia delivery device. This subsection shall not apply to minorspersons under 18 years of age lawfully involved in compliance checks. 5. False Identification: For any minorperson under 18 years of age to attempt to disguise his or her true age by the use of a false form of identification, whether the identification is that of another person or one on which the age of the person has been modified or tampered with, to represent an age older than the actual age of the person. 6. Smoking: Notwithstanding any exceptions for tobacco products shops as set forth in the Minnesota clean Clean indoor Indoor air Air actAct, no licensee shall directly or indirectly permit smoking in the licensed premises. All licensees under this chapter shall be responsible for the actions of their employees and patrons in regard to any smoking in the licensed premises. (Ord. 458, 12-3-2013) 3-2-7: SELF-SERVICE SALES: It shall be unlawful for a licensee under this chapter to allow the sale of tobacco, tobacco products, tobacco related devices, electronic delivery devices, or nicotine or lobelia delivery devices by any means whereby the customer may have access to such items without having to request the item from the licensee or the licensee's employee and whereby there is not a physical exchange of the tobacco, tobacco product, tobacco related device, electronic delivery devices, or nicotine or lobelia delivery device between the licensee or his or her clerk and the customer. All tobacco, tobacco products, tobacco related devices, and nicotine or lobelia delivery devicestobacco, tobacco products, tobacco related devices, electronic delivery devices, and nicotine or lobelia delivery devices shall either be stored behind a counter or other area not freely accessible to customers or in a case or other storage unit not left open and accessible to the general public. New retailers selling tobacco, tobacco products, tobacco related devices, electronic delivery devices, and nicotine or lobelia delivery devices tobacco commencing business after the effective date hereof shall comply with this section immediately. (Ord. 458, 12-3-2013) 3-2-8: RESPONSIBILITY FOR EMPLOYEES: All licensees under this chapter shall be responsible for the actions of their employees in regard to the sale of tobacco, tobacco products, tobacco related devices, electronic delivery devices, or nicotine or lobelia delivery devices on the licensed premises and the sale of such an item by an employee shall be considered a sale by the license holder. (Ord. 458, 12-3-2013) 3-2-9: COMPLIANCE CHECKS AND INSPECTIONS: All licensed premises shall be open to inspection by city officials during regular business hours. From time to time, but at least once per year, a Mendota Heights police officer or other city employee as designated by the city council shall conduct compliance checks to ensure compliance with the provisions of this chapter. Such compliance checks shall page 66 utilize, with the written consent of their parents or guardians, minorspersons over the age of fifteen (15) years but less than eighteen (18) years, to enter the licensed premises to attempt to purchase tobacco, tobacco products, tobacco related devices, electronic delivery devices, or nicotine or lobelia delivery devices. MinorsPersons under 18 years of age used for the purpose of compliance checks shall be supervised by designated law enforcement officers or other designated city personnel. MinorsPersons under 18 years of age used for compliance checks shall not be guilty of the unlawful purchase or attempted purchase or the unlawful possession of tobacco, tobacco products, tobacco related devices, or nicotine or lobelia delivery devices when such items are obtained as part of the compliance check. No minorperson under 18 years of age used in compliance checks shall attempt to use a false identification misrepresenting the minor'sperson under 18 years of age, age, and all minorspersons under 18 years of age lawfully engaged in a compliance check shall answer all questions about the minor'sperson under 18 years of age, age asked by the licensee or his or her employee and shall produce any identification, if any exists, for which he or she is asked. Nothing in this section shall prohibit other compliance checks authorized by state or federal laws for educational, research or training purposes or required for the enforcement of a particular state or federal law. (Ord. 458, 12-3-2013) 3-2-10: CIVIL ENFORCEMENT: The license holder shall be responsible for the conduct of its agents or employees while they are on the licensed premises. Any violation of this chapter shall be considered an act of the license holder for purposes of imposing a civil penalty, license suspension or revocation. Each violation, and every day in which a violation occurs or continues, shall constitute a separate offense. (Ord. 458, 12-3-2013) 3-2-11: NOTICE OF VIOLATION: Upon discovery of a suspected violation, the Mendota Heights police department shall inform the city clerk of the suspected violation. The city clerk shall then send to the license holder, by mail, a written notice of the civil violation. The notice shall inform the license holder of the penalty and the license holder's right to request a hearing regarding the violation of this chapter pursuant to section 3-2-13 of this chapter. (Ord. 458, 12-3-2013) 3-2-12: PENALTIES: A. Licensees: Any licensee found to have violated this chapter or whose employee shall have violated this chapter shall be charged an administrative fine as set forth by resolutionState Statute 461.12. B. Individuals: Individuals found to be selling tobacco to minorspersons under 18 years of age in violation of this chapter shall be charged an administrative fee of fifty dollars ($50.00)as set forth by State Statute 461.12. page 67 C. Misdemeanor And Other Prosecution: Nothing in this section shall prohibit the city attorney or county attorney from seeking prosecution as a misdemeanor for any violation of this chapter, or from enforcing any other applicable state or federal law or regulation in addition to or instead of any civil enforcement remedy that may be sought under this chapter. D. Penalties Reviewed Annually: Penalties in this section may be annually reviewed and new fine amounts adopted by resolution. (Ord. 458, 12-3-2013) 3-2-13: HEARINGS AND APPEALS: A. Request And Time For Hearings: 1. Following receipt of a notice of denial issued under section 3-2-3 of this chapter or a notice of violation and penalty issued under section 3-2-12 of this chapter or a notice of revocation, an applicant or license holder may request a hearing before the hearing officer appointed by the city council, or his/her designee. A request for hearing shall be made by the applicant or license holder in writing and filed with the city clerk within ten (10) days of the mailing of the notice of denial or alleged violation. Following receipt of a written request for hearing, the applicant or license holder shall be afforded an opportunity for a hearing before the hearing officer. 2. If a person accused of violating this chapter so requests, a hearing shall be scheduled, the time and place of which shall be published and provided to the accused violator. 3. Such hearing shall be held before a hearing examiner as determined by the city council and shall be open to the public. B. Findings And Actions: If, after the hearing, the applicant or license holder is found ineligible for a license, or in violation of this chapter, the hearing officer may affirm the denial, impose a fine, issue a suspension or revocation, or impose any combination thereof. The decision shall be in writing and set forth the reasons for the findings of the hearing officer. A copy shall be provided to the applicant or license holder. Likewise, if the hearing officer finds that no violation occurred or finds grounds for not imposing any penalty, such findings shall be recorded and a copy provided to the applicant or license holder. C. Decisions: If the hearing officer determines that a violation of this chapter did occur, that decision, along with the hearing officer's reasons for finding a violation and the page 68 penalty to be imposed under section 3-2-12 of this chapter, shall be recorded in writing. A copy shall be provided to the accused violator. Likewise, if the hearing officer finds that no violation occurred or finds grounds for not imposing any penalty, such findings shall be recorded and a copy provided to the acquitted accused violator. D. Appeals: Any appeal from the decision of the hearing officer must be filed with the district court within ten (10) days of the mailing of the hearing officer's decision. E. Default: If the applicant or license holder has been provided written notice of the denial or violation and if no request for a hearing is filed within the ten (10) day period, then the denial, penalty, suspension and/or revocation imposed pursuant to this chapter shall take immediate effect by default. The city clerk shall mail the notice of denial, fine, suspension and/or revocation to the applicant or license holder. (Ord. 458, 12-3-2013) 3-2-14: SEVERABILITY If any section or provision of this ordinance is held invalid, such invalidity will not affect other sections or provisions that can be given force and effect without the invalidated section or provision. Section 2. This Ordinance shall be in effect from and after September 1, 2018. Adopted and ordained into an Ordinance this 15th day of May, 2018. CITY COUNCIL CITY OF MENDOTA HEIGHTS Neil Garlock, Mayor ATTEST ___________________________ Lorri Smith, City Clerk page 69 CITY OF MENDOTA HEIGHTS SUMMARY PUBLICATION OF ORDINANCE NO. 522 AMENDING CITY CODE SECTION 3-2 TOBACCO SALES The City Council of the City of Mendota Heights, MN ordains: The City of Mendota Heights Code of Ordinances, Title 3, Chapter 2, Tobacco Sales is hereby amended to prohibit the sale flavored tobacco in any licensed tobacco establishment in Mendota Heights. This includes any tobacco product, tobacco-related device, electronic delivery device, or nicotine or lobelia delivery product that contains a taste or smell, other than the taste or smell of tobacco, menthol, mint or wintergreen. The ordinance will take effect on September 1, 2018. The complete text of this ordinance may be obtained at the city hall or from the City’s website at www.mendota-heights.com. Adopted this 15th day of May, 2018. CITY COUNCIL OF MENDOTA HEIGHTS /s/ Neil Garlock, Mayor Attest: /s/ Lorri Smith, City Clerk page 70 April 11, 2018 Dear Mayor Garlock and Members of the Mendota Heights City Council: I am writing on behalf of the American Heart Association to express our support for the proposed ordinance that would restrict the sale of flavored tobacco products. The A merican Heart Association’s mission is to build healthier lives, free of cardiovascular diseases and stroke. Reducing tobacco use is a key goal for achieving our mission and this ordinance will make significant headways in helping to achieve that goal. While the American Heart Association would also prefer to have menthol included in these restrictions, the ordinance is an important step toward reducing youth tobacco use. Flavored tobacco is one of the primary ways the tobacco industry is appealing to youth. Cheap cigars and other flavored products serve as a way to get youth addicted and create lifelong customer for the tobacco industry. Some of these products sell for as little as three cigars for $1. The packaging is bright and colorful and often hardly distinguishable from candy. Many flavored tobacco products contain the same flavorings use to make Koo-Aid and candy. Flavoring masks the harshness of tobacco and serves as a stepping stone to the use of other tobacco products. Mendota Heights has been a longtime leader when it comes to protecting the health and safety of our youth. We need to continue to do everything we can to protect the health of our young people. By taking these products out of stores youth visit daily, Mendota Heights will help prevent another generation from becoming lifelong tobacco users. Thank you for your consideration. Sincerely, Justin Bell – J.D. Regional Vice President of Advocacy – Iowa, Minnesota and South Dakota American Heart Association 2750 Blue Water Road – Suite 250 Eagan, MN 55121 952-278-7921 justin.bell@heart.org page 71 REQUEST FOR COUNCIL ACTION DATE: May 15, 2018 TO: Mayor, City Council, and City Administrator FROM: Ryan Ruzek, P.E. – Public Works Director SUBJECT: Sump Pump Inspection Program COMMENT: INTRODUCTION The City Council is asked to provide direction to staff on the continuation of the sump pump inspection program. BACKGROUND Wet weather impacts the sanitary sewer system by means of Inflow and Infiltration (I/I). I/I can come from cracks in sewer pipes, broken pipe joints, tree root penetrations, or manholes, but the most prevalent possible sources for sudden increases in flow are illegal discharges to the sanitary sewer system. The most common of these discharges are basement sump pumps. Eliminating, or greatly reducing the contribution to the sanitary sewer system from sump pumps would allow for a more predictable total sewer flow projection and make the budget process for the sanitary sewer utility fund more stable. It would also greatly reduce the risk of future severe flow increases and avoid future penalty surcharges. The Mendota Heights City Council authorized a contract with Foth Infrastructure & Environmental (Foth) at its November 15, 2016 meeting. The contract was for a not-to-exceed price of $217,580 to inspect approximately 2000 homes (which is approximately one-half of the City’s residences.). This program was funded through the City’s Water Utility Fund. The current billing for this service is around $138,000, which is well under the contracted amount. Of the 1,954 homes that were in the study area, approximately 222 remain as non-compliant. 161 of the 222 are non-compliant due to no response being received from the homeowner. The adopted 2018 City fee schedule identifies a surcharge amount of $75/quarter that is to be charged to properties that are noncompliant. DISCUSSION Approximately half of the homes in Mendota Heights were inspected in 2017 and 216 remain as non-compliant following the Phase I sump pump inspection program. Foth is proposing to implement Phase II of this program for the not-to-exceed price of $189,948. The remaining budget from Phase I of the program is $79,850, resulting in an additional expense of $110,098. page 72 Staff asks for direction from the Council on initiating the sump pump surcharge. Issues that may arise from this surcharge fee may be questions of fairness. Only half of the homes in the city were inspected; the homes that did not reply to the inspection in Phase I would likely then request an inspection for which the city is not currently staffed. Significant new news is that the Met Council Environmental Service (MCES) recently notified the city that its 2019 rate is expected to increase by a marginal 1.47 percent, which is well below the regional average of 3.5 percent. Flows from Mendota Heights to the treatment plant reduced by approximately 15 million gallons (mg) in 2017. We are hoping this trend continues for 2018 and beyond. The flow reduction could be contributed to many factors including 2017 sump pump disconnections, sewer lining, resident water conservation, or drier weather. BUDGET IMPACT The water utility fund has an adequate balance to continue with Phase II of the inspection program. Enacting the sump pump surcharge on the current 222 non-compliant properties would result in a fee of $16,650 per quarter or $66,000 over a year. Staff expect a large portion of these properties that provide proof of compliancy would have the fee waived as the goal of this program is to have all homes compliant with the ordinance. RECOMMENDATION It is staff’s opinion that the $110,098 which would otherwise be spent on completing the sump pump inspection program could be more effectively spent by lining problem sanitary sewer areas. If necessary, the sump pump inspection program could be re-implemented in the future. In the interests of equity, we further recommend to not impose the $75 non-compliance surcharge at this time. ACTION REQUIRED Council is asked to discuss, and provide direction to Council. page 73 To: Mayor and City Council From: Mark McNeill, City Administrator Subject: Halloween Bonfire Change Date: May 15, 2018 COMMENT: INTRODUCTION: The City Council is asked to consider a change in the manner in which the annual Halloween Bonfire is operated, in that locally-produced brush would not be used as the fuel for the fire. BACKGROUND: Over the past couple of years, there has been some discussion about the way that development may impact the ability to keep the Halloween bonfire tradition alive at its current location at the vacant lot behind the Mendota Plaza building. For now, the lot is still available. Once the lot is developed, another site would need to be found; there appear to be no easy alternatives. There is a concern at the current site that the bonfire may create some air quality problems for the nearby buildings--the brush that is burned is sometimes green, and often wet. Heavy smoke can result. One new development which might be impacted is “The Reserve” apartment building, which is set to open this summer. In addition, Gemini Medical will also be occupied this summer, and that is located across the street from the burn site. One alternative for keeping the bonfire tradition going at the current site would be to seek a way to have a cleaner burning fire. There is a local company which generates large quantities of oak pallets each month, and offers them free for the taking. The fires from that wood burn clean and hot. If acceptable to the City Council, the City’s Public Works employees could stop to pick up the pallets periodically as enough are generated, and then stockpile them at Public Works until the date of the Halloween bonfire. The City would then burn those, instead of the past practice of having people bring brush to the site. On the downside, there will likely be residents who appreciated the ability to dispose of brush at no charge. They will now have to haul the material to other locations out of town to do disposal. page 74 It should also be noted that portions of the Friendly Hills neighborhood, and the existing businesses in the Plaza, have also been close to the bonfire, but it has been successfully held previously. There have been occasional complaints received about smoke, but generally those have related to lingering smoke on the following day. BUDGET IMPACT: The cost to the City would be the time and resources needed to gather and store the pallets by Public Works. RECOMMENDTION: If the City Council sees potential issues with smoke, I then recommend the City change to the use of pallets (or similar clean scrap lumber which would be gathered by Public Works) to fuel the annual Halloween Bonfire, and to post notice that brush will no longer be accepted. ACTION REQUIRED: If the Council concurs, it should, by motion, authorize only the use of pallets or clean scrap lumber for burning at the Halloween Bonfire. Mark McNeill City Administrator page 75 To: Mayor and City Council From: Mark McNeill, City Administrator Subject: Change of Date—First City Council Meeting in July Date: May 15, 2018 COMMENT: INTRODUCTION: The Council is asked to change the date of the first regular City Council meeting in July. BACKGROUND: The July 4th holiday falls on a Wednesday this year. Because of that, the Council may wish to change the date of the regular Council meeting normally held Tuesday, July 3rd, to the preceding evening, Monday, July 2nd. That action would accommodate meeting attendees with holiday travel plans an extra evening. Taking action now will allow for sufficient notice to affected parties. DISCUSSION: The only schedule conflict would be that the ISD 197 School Board normally meets in the City Council Chambers on the first Monday evening of each month. However, the Board is not meeting in July, so the Council Chambers are available. RECOMMENDTION: I recommend that the date of the meeting be moved ahead by one day, to Monday, July 2nd. The starting time would remain at 7 PM. ACTION REQUIRED: If the Council concurs, it should, by motion set the first regular City Council meeting of July for Monday, July 2nd. Mark McNeill City Administrator page 76