The URL can be used to link to this page

2018-11-20 City Council PacketCITY OF MENDOTA HEIGHTS CITY COUNCIL AGENDA November 20, 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 November 7, 2018 City Council Minutes b. Approval of November 7, 2018 City Council Workshop Minutes c. Approval of November 13, 2018 Canvassing Board Minutes d. Approval of November 13, 2018 Joint City Council and Parks and Recreation Commission Work Session Minutes e. Accept Wetland Delineation Report for Somerset Elementary School f. Approve Purchase Order for City Hall HVAC Modifications g. Approval of Resolution 2018-89 Certifying Delinquent Sewer Accounts h. Approval of Resolution 2018-90 Certifying Delinquent Water Accounts i. Approval of the Building Activity Report j. Approval of October 2018 Treasurer’s Report k. Approval of Claims List l. Approval of the Fire Synopsis Report 6. Citizen Comment Period (for items not on the agenda) *See guidelines below 7. Public Hearing - none 8. New and Unfinished Business a. Ordinance No. 536 Tobacco Sales b. Resolution 2018-91 Authorizing Execution of a Contract for Private Development between City of Mendota Heights and The Heights of Mendota North, LLC (Michael Development). c. Approval of Amended Field and Facility Use Policy and Special Event Policy 9. Community Announcements 10. Council Comments 11. 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 Wednesday, November 7, 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 Paper, Miller, and Petschel were also present. Councilor Duggan was absent. 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 Miller seconded the motion. Ayes: 4 Nays: 0 Absent: 1 (Duggan) 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 a. Approve October 15, 2018 Joint Council/Planning Commission minutes b. Approve October 16, 2018 City Council Minutes c. Acknowledge the approved September 25, 2018 Planning Commission minutes d. Acknowledge the approved September 12, 2018 Parks-Rec Commission minutes e. Acknowledge the approved September 21, 2018 Parks–Rec Commission Special Meeting minutes f. Approve Resolution 2018-82 Authorize Disposal of Surplus Technology Related Equipment page 3 g. Approve Resolution 2018-83 Authorizing a Joint Powers Agreement for Waste Abatement Community Funding with Dakota County h. Accept Wetland Delineation Report for Friendly Hills Middle School i. Approve Resolution 2018-84 Accept Bids and Award Contract for the Wentworth Park Pond Improvements j. Approve Resolution 2018-85 MnDOT Limited Use Permits for Rogers Lake Trail k. Approve Selection of CivicRec as the City’s new Recreation Management System l. Approve Police Officer Hire m. Approval of Claims List Councilor Miller seconded the motion. Ayes: 4 Nays: 0 Absent: 1 (Duggan) PUBLIC COMMENTS There were no public comments. PUBLIC HEARING A) RESOLUTION 2018-86 ADOPTING AND CONFIRMING ASSESSMENTS FOR THE LEXINGTON HIGHLANDS & MENDAKOTA NEIGHBORHOOD IMPROVEMENTS Public Works Director Ryan Ruzek explained that the Council was being asked to adopt assessments for the Lexington Highlands and Mendakota Neighborhood Improvement Project. The Lexington Highlands neighborhood project involved rehabilitation, which is a complete pavement replacement, of Bwana Court, Avanti Drive, West Circle Court, Twin Circle Drive, Faro Lane, Summit Lane, and Vail Drive. The project also included a street rehabilitation to South Plaza Drive and to Mendakota Drive from Dodd Road to the Mendakota Court intersection. The project cost was $1,208,235.00. Staff estimated indirect costs (engineering, legal, administration, and finance) of approximately 20% or $240,000; bringing the total project costs to $1,449,982.00. The city is proposing to specially assess this project. • Lexington Highlands area cost is estimated to be $827,396.40; with $323,057.16 coming from special assessment and $504,339.24 coming from municipal bonds • South Plaza Drive area cost is estimated to be $258,303.60; with $68,804.47 coming from special assessments and $189,499.13 coming from municipal bonds • Mendakota Drive area cost is estimated to be $231,030.00; with $69,978.17 coming from special assessments and $161,051.83 coming from municipal bonds • Storm Sewer cost is estimated to be $133,152.00, with the total coming from the utility fund The Lexington Highlands Neighborhood included 81 assessable units. Taking the assessable costs of $827,396.40 and dividing in half (per the city assessment policy), the total assessment cost would have been $413,698.20; equaling an assessment amount for each unit of $5,107.38. However, the feasibility page 4 report identified a maximum assessment amount of $3,988.36. Therefore, staff proposed to remain with the $3,988.36 assessment amount per unit, equating to 37% of the project costs. The South Plaza Drive and Mendakota Drive used a front frontage assessment of $29.48 per foot; the total assessment ranged from $2,000 to approximately $15,000 for those business units. Assessment payments will be accepted at City Hall, interest free, until December 7, 2018. Unpaid assessments would then be certified to Dakota County and would be payable over a 10-year period at a 4.881% interest rate. Councilor Miller asked if the deadline for payment was consistent with past projects. Mr. Ruzek replied that it is consistent and the city always allows the 30 days. Councilor Paper noted that the 2nd lift course was completed rather quickly; typically there would be a longer time between courses. He asked if the quickness of this particular installation mattered. Mr. Ruzek replied in the negative; lift courses can actually be done all in the same day, depending on the amount of deep excavation work necessary. There was not a lot of deep excavations on this project. Mayor Garlock moved to open the public hearing. Councilor Miller seconded the motion. Ayes: 4 Nays: 0 Absent: 1 (Duggan) Mr. Larry Craighead, 1839 Faro Lane, noted that it was his understanding that if he did not get a rain garden, he would not be paying for one. Also, he understood that if he did not have a driveway curb installed that he would not need to pay for that either. However, his billing did not reflect either of these savings and he wanted to confirm that he would not be paying for them. Mr. Ruzek replied that rain gardens are not included in the assessments; they are shown under the storm sewer line item and would be paid for out of the utility fund. The curb and gutter are being paid 100% by the city. Individual properties are not paying for any curb. The assessment amount does not include either of those items. Mr. Dennis Davis, 1081 Avanti Drive, asked if there was any type of warranty on the work that was done. Mr. Ruzek replied that this project would have a standard one year warranty. Acceptance of the final project may be done before the end of the year or, if there are remaining items, this project would not get closed out until next June. That would then be the start of the one-year warranty period. If there are minor pavement maintenance items, the city pays 100% of maintenance costs. Councilor Petschel noted that to prolong the life of streets, the city does chip sealing as well. Mr. Ruzek confirmed and stated that the general lifespan of a street is approximately 25 years for the initial pavement and with these maintenance activities, hopefully it can be extended out to 30 or 40 years. Mayor Garlock moved to close the public hearing. Councilor Paper seconded the motion. Ayes: 4 Nays: 0 Absent: 1 (Duggan) page 5 Councilor Petschel moved to adopt RESOLUTION 2018-86 ADOPTING AND CONFIRMING ASSESSMENTS FOR THE LEXINGTON HIGHLANDS & MENDAKOTA NEIGHBORHOOOD IMPROVEMENTS. Councilor Miller seconded the motion. Ayes: 4 Nays: 0 Absent: 1 (Duggan) NEW AND UNFINISHED BUSINESS A) RESOLUTION 2018-87 APPROVING REVISED PURCHASING POLICY City Administrator Mark McNeill noted that at the last meeting, the Council authorized the purchase of a $63,000 emergency generator for use at City Hall. To do that, the Council needed to waive the existing policy on purchasing. This resulted in staff reviewing the current policy, which was last updated in 2011. It stipulated that any purchase over $50,000 should go through a formal bid process. The policy changes being proposed include: • Increasing the amount of the requirement for formal (sealed) bids from $50,000 to $100,000; still less than the state’s $175,000 limit • Increasing the amount that the City Administrator can approve for purchases without Council approval from $5,000 to $10,000; for budgeted expenditures only • Eliminating the current policy of requiring to “Buy American” for uniforms. This was initially included because of State law; however, that law has been repealed. • Adding a section on ethics and relationship expectations between City employees and vendors Councilor Petschel noted that the ethics piece was interesting, and asked how the consequences for ethics violations would be handled. Mr. McNeill replied that there are items under state law that cover what competitive and open bidding requirements are, and if someone is violating those, then they would be charged criminally. Otherwise, the city would deal with that with disciplinary action. Seeking to avoid these types of consequences is why this is being included in the policy. City employees will also be training so they understand the requirements. Councilor Miller moved to adopt RESOLUTION 2018-87 ADOPTING THE UPDATED PURCHASING POLICY FOR THE ACQUISITION OF GOODS AND SERVICES. Mayor Garlock seconded the motion. Ayes: 4 Nays: 0 Absent: 1 (Duggan) Councilor Petschel stated that she really liked that the City did not automatically approve spending up to $175,000 as allowed by state law, since City of Mendota Heights is not a large municipality. This lower figure represents the size of the city and the budget. page 6 COMMUNITY ANNOUNCEMENTS City Administrator Mark McNeill expressed the City’s appreciation to those who helped out with the Halloween Bonfire, and to Paster Properties for donating the site. Also, thanks to Elsius Metal Stamping and former employee George Novak for providing the fuel. He noted the Super Heroes Masquerade will take place on November 11, 2018. Sign up and information available online. The Par 3 is closed for the year. City Hall will be closed on November 12, 2018 in observance of Veterans Day. COUNCIL COMMENTS Councilor Paper stated that St. Thomas Academy football team continues to roll on and they are currently 10-0. They have another playoff game at Shakopee High School at noon on Nov 10 against Tartan. He also congratulated Councilor Petschel, Councilor Duggan, and Mayor Garlock for winning their elections. Councilor Miller expressed appreciation to everyone who attended the Halloween Bonfire, it was a great event. He also thanked Mayor Garlock for his military service. He noted that he will be putting together a survey that will be on his website for residents to let him know how he is doing as a Councilmember. Mayor Garlock expressed his appreciation to all of the staff for all of the hours they put in working on the election. It was a smooth process due to the time of all of the staff people. Councilor Petschel expressed appreciation to the residents for an outstanding voter turnout. There are long-term residents and engaged residents in the city and she is very proud to serve. ADJOURN Councilor Paper moved to adjourn. Councilor Petschel seconded the motion. Ayes: 4 Nays: 0 Absent: 1 (Duggan) Mayor Garlock adjourned the meeting at 7:28 p.m. ____________________________________ ATTEST: Neil Garlock Mayor _______________________________ Lorri Smith City Clerk page 7 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Council Workshop Tuesday, November 7, 2018 Pursuant to due call and notice thereof, a workshop of the Mendota Heights City Council was held at City Hall, 1101 Victoria Curve, Mendota Heights, Minnesota. CALL TO ORDER Mayor Garlock called the meeting to order at 6:00 p.m. Councilmembers Paper and Petschel were also present. Councilors Duggan and Miller were absent. Staff in attendance included City Administrator Mark McNeill, Assistant City Administrator Cheryl Jacobson, Finance Director Kristen Schabacker, Public Works Director Ryan Ruzek, Community Development Director Tim Benetti, City Attorney Andy Pratt and City Clerk Lorri Smith. REVIEW OF TAX INCREMENT FUNDAMENTALS, AND REQUEST FOR TIF ASSISTANCE FOR MICHAEL DEVELOPMENT SENIOR HOUSING Stacie Kvilvang, representing Ehlers and Associates, explained the basics of tax increment financing, and how the financing would work for Phase II of the redevelopment project, located at 2180 and 2160 Highway 13. Mike Swenson of Michael Development submitted an application for tax increment financing assistance for Phase II of the Mendota Heights Apartments development. It is proposed that Phase II would consist of 62 market rate units for seniors, aged 55+, with no income limits. Ms. Kvilvang provided a preliminary analysis and findings for the TIF assistance for Phase II. She explained the recommendation that the TIF assistance will provide the developer with up to $700,000 pay-as-you-go TIF assistance over an 11 year period. The assistance would be at no risk to the city. ATTENDANCE POLICY Councilor Paper recommended the Council direct staff to research and bring forward a new Council policy on Council members’ attendance at meetings. Mayor Garlock and Councilor Petschel agreed. UPDATE ON RETAINING WALL LOCATED AT THE VILLAGE Public Works Director Ruzek updated the Council on the retaining wall that is failing at The Village. He noted preliminary costs for two options for a temporary fix to be completed this fall. The Council was in agreement to install anchored barriers, ranging from $3,000 to $5,000, plus the cost for temporary warning signs to be installed at each end. City staff will receive quotes for a permanent fix to be completed next spring. page 8 ADJOURN Mayor Garlock adjourned the meeting at 6:40 p.m. ____________________________________ Neil Garlock, Mayor ATTEST: _______________________________ Lorri Smith, City Clerk page 9 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA STATE OF MINNESOTA Minutes of the Canvassing Board Meeting November 13, 2018 Pursuant to due call and notice thereof, the canvassing meeting of the City Council, City of Mendota Heights, Minnesota was held at 5:45 p.m. at City Hall, 1101 Victoria Curve, Mendota Heights, Minnesota. CALL TO ORDER Mayor Garlock called the meeting to order at 5:45 a.m. Also present were Council members Paper and Petschel. Councilors Duggan and Miller were absent. RESULTS CANVASSING The results presented showed that Neil Garlock was elected to the office of Mayor for a two year term. Elizabeth Petschel and Ultan Duggan were each elected to the City Council for four year terms. Councilmember Petschel moved adoption of Resolution 2018-88, “CANVASSING THE RETURNS OF THE NOVEMBER 6, 2018 GENERAL ELECTION.” Council member Paper seconded the motion. Ayes: 3 Nays: 0 ADJOURN Councilmember Petschel moved to adjourn the meeting. Council member Paper seconded the motion. Ayes: 3 Nays: 0 The meeting was adjourned at 5:46 p.m. ___________________________________ Neil Garlock, Mayor ATTEST ______________________________ Lorri Smith, City Clerk page 10 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Joint City Council – Parks and Recreation Commission Work Session Held November 13, 2018 Pursuant to due call and notice thereof, a work session of the City Council, City of Mendota Heights, Minnesota was held at the City Hall, 1101 Victoria Curve, Mendota Heights, Minnesota. CALL TO ORDER Mayor Garlock called the meeting to order at 6:00 pm. Councilmembers Paper and Petschel were present. Councilors Duggan and Miller were absent. Parks and Recreation Commission members present included Hinderscheid, Kipp, Miller, Klepperich, Tupper, Levine, and Goldade. City staff present included Cheryl Jacobson, Assistant City Administrator; Meredith Lawrence, Recreation Program Coordinator; Ryan Ruzek, Public Works Director; Kristen Schabacker, Finance Director; and Lorri Smith, City Clerk. PLAYGROUND IMPROVEMENTS BUDGET Public Works Director Ruzek presented options for 2019 improvements to Wentworth Park and Hagstrom King Park. He presented layouts for playground equipment at each of these parks. It was noted that some of the current play equipment will be maintained and integrated with the new equipment. Some of the current play equipment could be sold. The members discussed a budget amount for the improvements at each park. It was noted that, in the future, improvements to one park per year will be included in the Capital Improvement Plan. Ryan Ruzek stated that an inventory of the parks was conducted, and it was found that Wentworth Park and Hagstrom King Park need the improvements the most. The members discussed what they preferred to see in Mendota Heights parks and what amount they preferred to budget per year for park upgrades. Commissioner Tupper suggested that each neighborhood park reflect the needs of the neighborhood they are located in. She also suggested that each park include a unique feature. Options for sustainable funding for the Parks Fund were discussed. This item will be returned to the next Parks and Recreation Commission meeting for follow-up. RESIDENT FUNDRAISING FOR PARK/PLAYGROUND IMPROVEMENTS Recreation Program Coordinator Lawrence informed the members of a request from a resident to fundraise for park improvements at Hagstrom King Park. Members were in agreement that if any fundraising was conducted, then the proceeds should go to all of the parks. Staff will suggest to the resident that they work with the newly formed Mendota Heights Foundation, since it is a non-profit agency. page 11 PARK AND RECREATION ADMINISTRATIVE POLICIES FIELD AND FACILITY USE FEES; SPECIAL EVENTS Cheryl Jacobson and Meredith Lawrence presented a revised Field and Facility Use Policy and a revised fee schedule for review. It has been discussed that there is a need to offset the maintenance and administrative costs associated with field and facility usage through the implementation of use fees for all users. The Field and Facility Use Policy includes seven priority levels, which establish criteria for priority use. City staff is proposing to charge an application fee, a use fee, and a field prep fee. The proposed usage fees include either a per user fee, or a per hour/day rate or a per week rate. The fees would be added to the City’s 2019 fee schedule for approval by the City Council. By having a usage fee, this could also free up some of the field time. Councilor Paper suggested a usage fee based on per participant. He stated it would be more streamlined and equitable. Commissioner Goldade suggested less priority levels to simplify the policy. John Masica, representing Mendota Heights Athletic Association (MHAA), reminded the group that MAHA has purchased field equipment for the City to use. The group also gives out many scholarships to those who cannot afford the cost of their programs. He stated that the policy and the usage fees should to be fair. The fees would have to be passed along to their participants, and that 56% of the MHAA participants are residents of Mendota Heights. Rachel Quick, resident, suggested a flat fee contract for the athletic associations to simplify the fee schedule and billing. Staff was directed to work with MHAA to develop a fair and equitable fee schedule. The Special Event Policy being proposed would be used to coordinate tournaments, company celebrations, fundraising events, productions, exhibitions, community observances, festivals, entertainment, races, and other events being held on City property. No comments were heard. TOBACCO FREE POLICY FOR PARKS Ryan Ruzek presented a revised Tobacco Free Policy for the parks. The policy includes updated language to today’s standards and adds the prohibition of electronic nicotine delivery devices (such as vapors, e-cigarettes, etc.) in city parks. The members recommended no changes to the policy. This will be heard at the next City Council meeting. MENDOTA HEIGHTS PARK SYSTEM PLANNING Ryan Ruzek presented an overview of the existing parks in Mendota Heights. He presented maps showing the existing neighborhood parks, community parks, and natural resource areas in the City. The members discussed the southwest area of the city, which only includes a dog park. page 12 ADJOURN The meeting was adjourned at 9:00 pm. ___________________________ Neil Garlock, Mayor ____________________________ Lorri Smith, City Clerk page 13 REQUEST FOR COUNCIL ACTION DATE: November 20, 2018 TO: Mayor, City Council, and City Administrator FROM: Ryan Ruzek, P.E., Public Works Director SUBJECT: Accepting Wetland Delineation Report for the Somerset Heights Elementary School Site COMMENT: INTRODUCTION The Council is asked approve a Wetland Conservation Act (WCA) Joint Water Resources Application for wetland boundary and type for the Somerset Heights Elementary School site. BACKGROUND The City Council of Mendota Heights is the Local Governmental Unit (LGU) that administers Chapter 8420 of the Minnesota Wetland Conservation Act (WCA). A wetland delineation report for the Somerset Heights Elementary School site was submitted by Pinnacle Engineering on behalf of Independent School District (ISD) #197 on October 16, 2018. The delineation was performed in preparation for a proposed building and grounds renovation project. DISCUSSION The delineation identified one wetland basin on the site. Wetland 1 is located along the southern border of the site and has been identified as a riverine wetland, and is also identified on the National Wetland Inventory map. It is not identified as a MN Department of Natural Resources Public Water. Staff reviewed the delineation on October 18, 2018, and concurred with the boundaries as submitted in the report. No additional comments were received from the Technical Evaluation Panel. BUDGET IMPACT None, this process is a judicial requirement of the city. If council accepts the report, a Notice of Decision will be sent to Technical Evaluation Panel members and their respective agencies (Dakota County SWCD, BWSR, LMRWMO, Army Corps of Engineers.), as well as the applicant and any members of the public that requested notice (none). RECOMMENDATION Staff recommends that City Council approve and accept the report as submitted by Pinnacle Engineering for determination of wetland boundary and type, and direct staff to issue the Notice of Decision. ACTION REQUIRED If Council wishes to enact the staff recommendation, it should pass a motion accepting the delineation report and authorizing staff to issue a Notice of Decision. This action requires a simple majority vote. page 14 page 15 REQUEST FOR COUNCIL ACTION DATE: November 20, 2018 TO: Mayor, City Council, and City Administrator FROM: Ryan Ruzek, P.E., Public Works Director SUBJECT: Authorize Purchase Order for City Hall HVAC Improvements COMMENT: INTRODUCTION The Council is asked to authorize a purchase order to replace the HVAC condensing units at City Hall. BACKGROUND Mendota Heights City Council approved a generator replacement contract at their October 16, 2018 meeting. The generator replacement requires some exterior HVAC units be relocated. City Hall opened in 1989 and is currently still using the original HVAC equipment. This original equipment has had numerous costly repairs in the recent past. The equipment is also using R-22 refrigerant which is no longer produced and is costly to obtain as only recycled R-22 is allowed. R- 22 has been replaced by R-410A. The HVAC system at City Hall consists of 5 condensing units and air handlers. Two exterior condensing units are proposed to be relocated to provide a space for the new generator which is currently housed inside the building. A third condensing unit failed this fall and parts for this unit are obsolete. DISCUSSION Staff solicited three quotes for this work. It is proposed that instead of relocating the existing condensing units, the units should be replaced as parts are no longer available. The proposed project involves replacement of all five condensing units, replacement of the cooling coils inside the interior air handlers, concrete bases, clean out of existing refrigerant lines, and reconnecting the system for a complete set up. The following quotes were acquired for this project: DeVito Mechanical $63,780 NAC $68,752 Cool Air Mechanical $103,500 BUDGET IMPACT The costs of this improvement is proposed to be funded through the city hall facility levy which has additional funds from the water tower transfer. page 16 RECOMMENDATION Staff recommends that City Council authorize the purchase order for the HVAC project to the low bidder, DeVito Mechanical. ACTION REQUIRED If Council agrees with the staff recommendation, authorize Staff to execute a purchase order to DeVito Mechanical for $63,780. This action requires a simple majority vote. page 17 MEMO DATE: November 20, 2018 TO: Mayor, City Council and City Administrator FROM: Kristen Schabacker, Finance Director Sharon Hinze, Utility Billing Clerk SUBJECT: Delinquent Utility Charges DISCUSSION: There are currently 59 delinquent sewer accounts totaling $29,962.10 to be certified to Dakota County for collection with property taxes per City Code 10-3-7. In the year 2017, we certified approximately $20,428.46 of delinquent sewer charges to Dakota County for collection with property taxes. Further, per City Code 10-5-5, the City is authorized to certify to Dakota County for collection with property taxes and any unpaid costs for water charges that are past due to the Board of Water Commissioners of the City of St. Paul. There are 28 water accounts with the Board of Water Commissioners of the City of St. Paul totaling $3,523.54 to be certified this year. In the year 2017, we certified approximately $4,328.06 of delinquent water charges to Dakota County for collection with property taxes. In addition, per City Code 4-3-4B, the City is authorized to certify to Dakota County for collection with property taxes any unpaid costs for the cutting and removal of weeds, grass and other vegetation. However, there are no delinquent weed accounts to be certified this year. Per City Code and City Ordinance, we have included in these amounts all balances, interest and late charges. The total amount of said utility charges shall be paid with general taxes for the year 2018 and collectable in 2019. Per City Code and City Ordinance, letters were sent to property owners of sewer accounts past due in excess of two quarters, notifying them that if the delinquency was not paid by November 12, 2018, the amount due, plus seven percent (7%) interest and a $50.00 charge will be certified to Dakota County for collection with property taxes. ACTION REQUIRED: It is recommended that the city council approve the attached Resolutions: RESOLUTION NO. 2018-89 “RESOLUTION CERTIFYING DELINQUENT UTILITY CHARGES TO THE DAKOTA COUNTY AUDITOR FOR COLLECTION WITH REAL ESTATE TAXES.” RESOLUTION NO. 2018-90 “RESOLUTION CERTIFYING DELINQUENT WATER CHARGES TO THE DAKOTA COUNTY AUDITOR FOR COLLECTION WITH REAL ESTATE TAXES.” page 18 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA RESOLUTION 2018 - 89 A RESOLUTION CERTIFYING DELINQUENT UTILITY CHARGES TO THE DAKOTA COUNTY AUDITORS FOR COLLECTION WITH REAL ESTATE TAXES WHEREAS, under the provisions of City Code 10-3-7 adopted by the City Council of the City of Mendota Heights on February 18, 2003, it is provided that if sewer rental charges due to the City for the use of the City’s sewer system are not paid within thirty (30) days after the mailing of a billing statement thereof, the same shall be collected and the collection thereof enforced in the same manner and in all respects as county and state real estate taxes, subject to like penalty, cost and interest charges; and WHEREAS, the City Clerk has advised the City Council that the total sewer rental charges due to the City as of October 12, 2018, has been sent to the last known owner of said properties and that more than thirty (30) days has elapsed since the mailing of said statement; and WHEREAS, said properties are all situated in the City of Mendota Heights, County of Dakota, Minnesota, and the parcel identification number of said properties, and the total amount of sewer rental charges due for each said parcel through November 12, 2018, are more particularly described as follows: PARCEL ID NUMBER AMOUNT DUE 27-71275-02-260 $441.30 27-37600-03-110 $653.06 27-17150-02-100 $357.46 27-81250-01-090 $473.68 27-19810-01-100 $540.54 27-42100-08-130 $579.12 27-03800-13-020 $482.12 27-03800-37-030 $357.46 27-71050-00-340 $529.42 27-76402-02-030 $489.24 27-37650-05-030 $441.30 27-17151-04-010 $617.54 page 19 27-57500-03-110 $380.76 27-17100-02-090 $489.24 27-17100-01-210 $499.36 27-71150-14-030 $441.30 27-63300-01-020 $491.86 27-17850-00-160 $533.70 27-42100-08-090 $338.58 27-76401-00-050 $459.28 27-71100-01-050 $353.18 27-31300-02-110 $618.76 27-31300-02-100 $441.30 27-69702-07-140 $500.54 27-46500-01-010 $441.30 27-02300-50-021 $425.26 27-75900-01-080 $625.30 27-42100-08-070 $441.30 27-54200-01-071 $441.30 27-54200-01-081 $490.52 27-27800-13-030 $487.52 27-27800-19-050 $473.68 27-27800-05-090 $477.26 27-64600-02-170 $664.50 27-18301-01-200 $353.18 27-19150-00-130 $455.58 27-27800-18-060 $453.28 27-28400-04-110 $353.18 27-04100-36-018 $533.70 27-48225-01-040 $499.36 page 20 27-27800-20-011 $617.54 27-27800-20-050 $1,247.44 27-48350-01-250 $441.30 27-27800-19-130 $371.16 27-19851-02-020 $457.24 27-27800-12-070 $441.30 27-19850-04-030 $505.72 27-18301-05-060 $601.96 27-64550-00-150 $441.30 27-23365-01-320 $441.30 27-18302-06-110 $515.82 27-04100-36-011 $99.22 27-04100-36-017 $99.22 27-02400-75-010 $99.22 27-11000-01-010 $3,251.72 27-04000-25-010 $718.76 27-30700-00-110 $93.08 27-17150-02-080 $175.90 27-31900-00-040 $216.58 NOW, THEREFORE, IT IS HEREBY RESOLVED by the City Council of the City of Mendota Heights, Minnesota, as follows: 1. That the total of said utility charges set forth above is hereby adopted and confirmed as the proper unpaid utility charges due for the above-described properties through November 12, 2018, for each of said lots, pieces and parcels of land shall be a lien concurrent with the general taxes upon such parcels and all thereof. 2. That the total amount of said utility charges shall be payable with general taxes for the year 2018 collectable in 2019. 3. That the Utility Billing Clerk shall prepare and transmit to the Dakota County Auditor a certified copy of this Resolution with the request that each of said amounts shall be page 21 extended upon the property tax lists of Dakota County to be thereafter collected in the manner provided by law. 4. That a $50.00 service charge and seven percent (7%) interest has been added to each delinquent utility account in accordance with Ordinance No. 356 amending Ordinance No. 803. Adopted by the Mendota Heights City Council this 20th day of November, 2018. CITY COUNCIL CITY OF MENDOTA HEIGHTS ____________________________________________ Neil Garlock, Mayor ATTEST _____________________________________________ Lorri Smith, City Clerk page 22 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA RESOLUTION 2018 - 90 A RESOLUTION CERTIFYING DELINQUENT WATER CHARGES TO THE DAKOTA COUNTY AUDITORS FOR COLLECTION WITH REAL ESTATE TAXES WHEREAS, under the provisions of City Code 10-5-5 adopted by the City Council of the City of Mendota Heights on April 19, 2016, it is provided that if water charges are past due to the Board of Water Commissioners of the City of St. Paul and are not paid within thirty (30) days after the mailing of a billing statement thereof, the same shall be collected and the collection thereof enforced in the same manner and in all respects as county and state real estate taxes, subject to like penalty, cost and interest charges; and WHEREAS, the City Clerk has advised the City Council that the total water charges due to the Board of Water Commissioners of the City of St. Paul as of the middle of October, 2018 has been sent to the last known owner of said properties and that more than thirty (30) days has elapsed since the mailing of said statement; and WHEREAS, said properties are all situated in the City of Mendota Heights, County of Dakota, Minnesota, and the parcel identification number of said properties, and the total amount of water charges due for each said parcel through the middle of November, 2018 are more particularly described as follows: PARCEL ID NUMBER AMOUNT DUE 275420001071 $75.96 274210008130 $145.06 274210008120 $95.32 271710001210 $117.44 273760006070 $257.02 271715006020 $132.64 277640100050 $116.04 271715004170 $131.84 276970104030 $169.48 271915000130 $78.72 271915000150 $70.44 273130002160 $90.28 page 23 277105000360 $99.46 277105000340 $128.48 273860004070 $87.36 273190000040 $125.68 274530000230 $99.46 271715104010 $94.80 274495003040 $21.38 273767502020 $170.08 270230050021 $82.88 278125001090 $236.80 272780010010 $141.68 272780011030 $145.08 272780018060 $166.44 271981001100 $166.42 276810001050 $169.18 273777001130 $108.12 NOW, THEREFORE, IT IS HEREBY RESOLVED by the City Council of the City of Mendota Heights, Minnesota, as follows: 1. That the total of said water charges set forth above is hereby adopted and confirmed as the proper unpaid utility charges due for the above-described properties through the middle of October, 2018 for each of said lots, pieces and parcels of land shall be a lien concurrent with the general taxes upon such parcels and all thereof. 2. That the total amount of said water charges shall be payable with general taxes for the year 2018 collectable in 2019. 3. That the Utility Billing Clerk shall prepare and transmit to the Dakota County Auditor a certified copy of this Resolution with the request that each of said amounts shall be extended upon the property tax lists of Dakota County to be thereafter collected in the manner provided by law. Adopted by the Mendota Heights City Council this 20th day of November, 2018. page 24 CITY COUNCIL CITY OF MENDOTA HEIGHTS ____________________________________________ Neil Garlock, Mayor ATTEST _____________________________________________ Lorri Smith, City Clerk page 25 11/5/2018 Mendota Heights Building Activity Report Mike Andrejka, Building Official October 1, 2018 thru October 31, 2018 January 1, 2018 thru October 31, 2018 January 1, 2017 thru October 31, 2017 January 1, 2016 thru October 31, 2016 Building Permit No.Valuation Fee Collected Building Permit No.Valuation Fee Collected Building Permit No.Valuation Fee Collected Building Permit No.Valuation Fee Collected SFD 2 978,704.00$ $11,191.13 SFD 9 4,717,052.00$ $53,035.56 SFD 7 3,994,201.34$ $42,821.23 SFD 8 3,926,562.00$ 43,992.62$ Apartment 0 -$ $0.00 Apartment 1 9,466,820.00$ $65,710.84 Apartment 2 23,022,000.00$ $158,402.65 Apartment 0 -$ -$ Townhouse 2 285,467.89$ $5,026.88 Townhouse 18 3,938,993.89$ $43,000.88 Townhouse 8 1,790,000.00$ $17,992.39 Townhouse 16 3,705,000.00$ 38,676.69$ Condo 0 -$ $0.00 Condo 0 -$ $0.00 Condo 0 -$ $0.00 Condo 0 -$ -$ Misc 74 1,370,694.77$ 14,363.01$ Misc 520 7,646,672.57$ 103,636.09$ Misc 567 8,530,181.28$ 116,348.52$ Misc 543 6,621,479.44$ 95,938.11$ Commercial 2 690,000.00$ $4,456.75 Commercial 16 7,443,309.00$ $63,172.89 Commercial 33 9,637,380.00$ $96,379.71 Commercial 27 7,604,604.00$ 64,456.37$ Sub Total 80 3,324,866.66$ 35,037.77$ Sub Total 564 33,212,847.46$ 328,556.26$ Sub Total 617 46,973,762.62$ 431,944.50$ Sub Total 594 21,857,645.44$ 243,063.79$ 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 14 $1,631.78 Plumbing 188 $30,457.72 Plumbing 167 $28,887.25 Plumbing 175 15,859.83$ Water 0 $0.00 Water 0 $0.00 Water 0 $0.00 Water 3 30.00$ Sewer 2 $150.00 Sewer 36 $2,700.00 Sewer 31 $2,338.00 Sewer 29 2,175.00$ Mechanical 31 $3,581.21 Mechanical 412 397.00$ $52,889.52 Mechanical 332 $55,324.62 Mechanical 329 42,984.49$ Sub Total 47 5,362.99$ Sub Total 636 86,047.24$ Sub Total 530 $86,549.87 Sub Total 536 61,049.32$ License No.Valuation Fee Collected Licenses No.Valuation Fee Collected Licenses No.Valuation Fee Collected Licenses No.Valuation Fee Collected Contractor 0 $0.00 Contractor 282 $14,100.00 Contractor 311 $15,550.00 Contractor 302 15,100.00$ Total 127 3,324,866.66$ 40,400.76$ Total 1482 33,212,847.46$ 428,703.50$ Total 1458 46,973,762.62$ 534,044.37$ Total 1432 21,857,645.44$ 319,213.11$ NOTE: All fee amounts exclude SAC, WAC and State Surcharge. Amounts shown will reflect only permit, plan review fee and valuation totals page 26 page 27 page 28 page 29 page 30 page 31 page 32 page 33 page 34 page 35 page 36 page 37 Request for City Council Action MEETING DATE: November 20, 2018 TO: Mayor, City Council, and City Administrator FROM: Scott Goldenstein, Assistant Fire Chief SUBJECT: October 2018 Fire Synopsis Fire Calls For the month of October, the Mendota Heights Fire Department responded to 40 calls for service. Of those, 31 were located in Mendota Heights, one in Mendota, one in Sunfish Lake, and three were in Lilydale. We did have one vehicle fire on 35E as well as a commercial fire located at TivoliToo. The fire itself was primarily controlled with the building’s sprinkler system. The bulk of the fire departments actions revolved around locating the source, and then removal of smoke throughout the facility. In addition, seven calls were either false alarms or unintentional transmission of alarms, one was coded as a “smoke scare”, four medical calls, three were classified as hazardous material spills or leaks, and three involved utility power lines down and/or arcing, the other nine calls remaining were classified as “other” in nature. Of the calls listed above seven calls were cancelled before our arrival. Lastly, we were requested for mutual aid assistance from Inver Grove Heights and from South Metro. Total Mendota Hts. Mendota Sunfish Lake Lilydale Other Actual Fires 2 2 2 Medical 4 1 1 Haz Mat 8 7 False Alarm 7 1 1 Good Intent 17 2 Mutual Aid 2 Total 40 Department Training Opportunities EMS Section “C” and “D” – is our EMR annual medical refresher hours. This class is not mandatory but getting 16 hours to maintain a firefighter’s certification level is mandatory. Fire Behavior - This training class is a mandatory one and involves both classroom and hands-on elements to better understand current fire behavior. Alarm Systems - This class allows the firefighters to practice on alarm panel styles that they might encounter when responding to a call. Hazardous Materials - This class was broken into both classroom elements as well as hands-on portions to practice recognizing and identifying potentially hazardous situations and when they have identified them, putting the correct plan into play. page 38 MENDOTA HEIGHTS FIRE DEPARTMENT OCTOBER 2018 MONTHLY REPORT FIRE CALLS NO. 18220 -18259 NUMBER OF CALLS:40 FIRE ALARMS DISPATCHED:NUMBER STRUCTURE CONTENTS MISC.TOTALS TO DATE ACTUAL FIRES Structure - MH Commercial 1 $30,000 $20,000 $1,050,000 Structure - MH Residential $120,300 Structure - Contract Areas $550 Cooking Fire Vehicle - MH 1 $2,000 $25,500 Vehicle - Contract Areas $8,000 Grass/Brush/No Value MH Grass/Brush/No Value Contract TOTAL MONTHLY FIRE LOSSES MEDICAL Assist 4 $30,000 $20,000 $2,000 Extrication HAZARDOUS SITUATION FIRE LOSS TOTALS MENDOTA HEIGHTS Spills/Leaks 5 Arcing/Shorting 1 ALL FIRES, ALL AREAS (MONTH)$52,000 $1,204,350 Chemical Power Line Down 2 MEND. HTS. ONLY STRUCT/CONTENTS $1,170,300 FALSE ALARM Residential Malfunction 3 MEND. HTS. ONLY MISCELLANEOUS $23,500 Commercial Malfunction 1 Unintentional - Commercial 3 MEND. HTS. TOTAL LOSS TO DATE $1,193,800 Unintentional - Residential Criminal BILLING FOR SERVICES GOOD INTENT Smoke Scare 1 Dispatched & Cancelled 7 STRUCTURE CONTENT Steam Mistaken for Smoke Other 9 SPRINKLER ACTIVATION - MH 80,000.00$ 15,000.00$ MUTUAL AID 2 TOTAL CALLS 40 $0 LOCATION OF FIRE ALARMS:TO DATE LAST YEAR TOTALS:$80,000 $15,000 MENDOTA HEIGHTS 31 185 158 MENDOTA 1 9 3 FIRE MARSHAL'S TIME FOR MONTH SUNFISH LAKE 1 14 22 LILYDALE 3 26 16 INSPECTIONS 40.5 OTHER 4 12 12 INVESTIGATIONS TOTAL 40 246 211 RE-INSPECTION WORK PERFORME HOURS TO DATE LAST YEAR MEETINGS FIRE CALLS 499 3516 3171.5 MEETINGS 117.25 378.5 336 ADMINISTRATION 8.5 DRILLS 320.5 1531.25 1643.5 SPECIAL ACTIVITY 135.25 2289.75 2336.25 SPECIAL PROJECTS 3 FIRE MARSHAL 52 475 416 TOTAL FOR FIRE MARSHAL 52 TOTALS 1124 8190.5 7903.25 REMARKS:SEE OTHER SIDE FOR SYNOPSIS MISC LOSS - TOTALS page 39 Request for City Council Action DATE: November 20, 2018 TO: Mayor and City Council FROM: Lorri Smith, City Clerk Mark McNeill, City Administrator SUBJECT: Ordinance 536 Amending City Code Section 3-2 Tobacco Sales COMMENT: Introduction The Council is asked to consider the adoption of Ordinance 536 Amending City Code 3-2, prohibiting the sale of tobacco products to individuals under 21 years of age, and to prohibit the sale of mint, menthol, and wintergreen flavored tobaccos, in all licensed tobacco establishments in Mendota Heights. Background On October 2, 2018, the Council held a work session to consider a prospective change to the City Code which would prohibit the sale of tobacco products to individuals under 21 years of age, and to prohibit the sale of menthol, mint, and wintergreen flavored tobacco to all. This was a follow-up to action taken by the Council on May 15th, which prohibited the sale of other flavored tobaccos. As a result of the work session, the Council directed staff to prepare an ordinance that would prohibit the sale of tobacco products and nicotine delivery devices to individuals under 21 years of age in all licensed establishments, and to prohibit the sale of all flavored tobacco, including mint, menthol, and wintergreen. The Council also directed staff to meet with the license holders to explain the proposed changes and hear their concerns. Notifications were sent to the six Mendota Heights tobacco retailers of the proposed changes. On October 23, 2018, city staff was available to meet to discuss the proposed changes and answer questions. However, no one from the retail or tobacco community attended that meeting, although the City Clerk did receive a telephone call several days prior to that someone who had questions about the proposed changes. In addition to prohibiting the sale of all flavored tobaccos and increase the age limit from 18 to 21, the proposed changes also update several other sections of the City Code: - Clarifies the definition of “retail establishment” to sell to anyone, not just members of the general public. -Substitutes the term ‘retail establishment’ for ‘premises’. page 40 - Deletes paragraph (3-2-6 A.1.c), which references the prohibition of self-service tobacco merchandising, which is addressed in Section 3-2-7. - Clarifies that the ordinance changes will not apply to the possession, use, or procurement of tobacco by people under 21 years of age—the changes only prohibit the sale of tobacco products to those individuals. - Clarifies provisions for compliance checks. - The Penalties section (3-2-12) will remain consistent with State Statute 461.12, but amended with the reference to “18 years” in the statute to be changed to “21 years”. - Makes the City Attorney, and not the City Council, the party responsible for dealing with the judicial consideration. - Establishes the City Council, and not a hearing officer, to be the determining party as to penalties. - Makes the prohibition of all flavored tobacco products and sales to individuals under 21 years of age to become effective March 1, 2019. Recommendation Based on previous direction of the City Council, staff recommends the Council adopt Ordinance 536 Amending City Code Section 3-2 Tobacco Sales, and approve the summary publication. Action Required If the Council concurs, it should approve Ordinance 536 and the summary publication. AN ORDINANCE AMENDING CITY CODE SECTION 3-2 TOBACCO SALES Adoption of Ordinance 536 requires a 3/5th vote. Adoption of the summary publication requires a 4/5th vote of the council. page 41 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA ORDINANCE NO. 536 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. Title 3, Chapter 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: A. Tobacco use has been shown to be the cause of several serious health problems which subsequently place a financial burden on all levels of government; this ordinance is intended to regulate the sale of tobacco, tobacco-related devices, electronic delivery devices, and nicotine or lobelia delivery devices for the purpose of enforcing and furthering existing laws, and to protect youth and young adults against the serious effects associated with use and initiation. B. Youth and young people are particularly susceptible to the addictive properties of tobacco products, and are particularly likely to become lifelong users. National data page 42 show that about 95 percent of adult smokers begin smoking before they turn 21. The ages of 18 to 21 are a critical period when many smokers move from experimental smoking to regular, daily use. Electronic delivery device use among youth has recently tripled. Young minds are particularly susceptible to the addictive properties of nicotine. As a result, approximately 3 out of 4 teen smokers end up smoking into adulthood. C. Public health research and tobacco industry documents and marketing reveal that tobacco companies have used menthol, mint, wintergreen, fruit, candy, and alcohol flavors as a way to target youth and young adults. The presence of flavors in tobacco products can make it more difficult for youth, young adults, and adult tobacco users to quit. This ordinance is intended to regulate the sale of tobacco, tobacco-related devices, electronic delivery devices, and nicotine or lobelia delivery products to protect the public, especially youth and young adults, and to further the official public policy of the state in regard to preventing young people from starting to smoke as stated in Minn. Stat. § 144.391, as it may be amended from time to time. 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 persons under 18 years of age and that the presence of flavors in tobacco products can make it more difficult for 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 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 persons 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 persons under 18 years of age from starting to use tobacco products as stated in Minnesota statutes section 144.391, public policy. 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 page 43 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, 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 persons under 18 21 years of age as authorized by this chapter. Compliance checks shall also mean the use of persons under 18 21 years of age who attempt to purchase tobacco, tobacco products, tobacco related devices, electronic delivery 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, 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 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 menthol, mint, wintergreen, 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, 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 page 44 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. 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, tobacco related devices, electronic delivery devices, 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, electronic delivery devices, or nicotine or lobelia delivery devices in any manner where any person shall have access to the tobacco, tobacco products, tobacco related devices, electronic delivery 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 page 45 device. 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: Any 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 vending machines equipped with manual, electric or electronic locking devices. 3-2-3: LICENSE: A. License Required: No person shall sell or offer to sell any tobacco, tobacco products or tobacco related devices, electronic delivery devices, or nicotine or lobelia delivery devices 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 devices, 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 page 46 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 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, 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. 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 this chapter shall be set in accordance with a fee schedule adopted by the city council. 3-2-5: GROUNDS FOR DENIAL OF LICENSE: page 47 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 twenty-one (2118) 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. 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: a. To any person under the age of eighteen twenty-one (2118) years. i. Age Verification. Licensees must verify by means of government-issued photographic identification that the purchaser is at least 21 years of age. Verification is not required for a person over the age of 30. That the person appeared to be 30 years of age or older does not constitute a defense to a violation of this subsection. ii. Signage. Notice of the legal sales age and age verification requirement must be posted at each location where tobacco, tobacco products, tobacco related devices, electronic delivery devices, or nicotine or lobelia delivery devices are offered for sale. The required signage, which will be provided to the licensee by the city, must be posted in a manner that is clearly visible to anyone who is or is considering making a purchase. page 48 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, electronic delivery devices, and nicotine or lobelia delivery devices shall be stored behind the counter. c. By means of "loosies" as defined in section 3-2-2 of this chapter. d. 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. e. 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. C. Illegal Other Prohibited 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 person under 2118 years of age. 2. Possession: For any person 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 persons under 18 years of age lawfully involved in a compliance check. 3. Use: For any 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 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 person under 18 years of age. It shall further be a violation for any person to coerce or attempt to coerce a person under 18 years of age to illegally purchase or otherwise obtain or use any tobacco, tobacco page 49 product, tobacco related device, electronic delivery device, or nicotine or lobelia delivery device. This subsection shall not apply to persons under 18 years of age lawfully involved in compliance checks. 52. False Identification: For any person under 1821 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. 63. Smoking: Notwithstanding any exceptions for tobacco products shops as set forth in the Minnesota Clean Indoor Air Act, no licensee shall directly or indirectly permit smoking in the licensed premisesretail establishment. All licensees under this chapter shall be responsible for the actions of their employees and patrons in regard to any smoking in the licensed premisesretail establishment. 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, electronic delivery devices, and nicotine or lobelia delivery devices shall either be stored behind thea 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 rRetailers selling tobacco, tobacco products, tobacco related devices, electronic delivery devices, and nicotine or lobelia delivery devices commencing business after the effective date hereof shall comply with this section immediately. 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 premisesretail establishment premises and the sale of such an item by an employee shall be considered a sale by the license holder. 3-2-9: COMPLIANCE CHECKS AND INSPECTIONS: All licensed premisesretail establishments 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 Chief of Police, shall conduct compliance checks to ensure compliance with the provisions of this chapter. Such compliance checks shall utilize, with the written consent of their parents or guardians, persons over the age of fifteen (15) years but less than eighteen page 50 twenty-one (1821) years, to enter the licensed premisesretail establishment to attempt to purchase tobacco, tobacco products, tobacco related devices, electronic delivery devices, or nicotine or lobelia delivery devices. Prior written consent from a parent or guardian is required for any person under the age of 18 who participates in a compliance check. Persons 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. Persons 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 person used in the compliance checks shall attempt to use a false identification misrepresenting the person’s age, and all persons lawfully engaged in a compliance check shall truthfully answer all questions about the person’s age for which the person is No person under 18 years of age used in compliance checks shall attempt to use a false identification misrepresenting the person under 18 years of age, age, and all persons under 18 years of age lawfully engaged in a compliance check shall answer all questions about the person 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. 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 premisesretail establishment. Any violation of this chapter shall be considered an act of the license holder for purposes of imposing a civil penalty, or license suspension or revocation. Each violation, and every day in which a violation occurs or continues, shall constitute a separate offense. 3-2-11: NOTICE OF VIOLATION: Upon discovery of a suspected violation of this chapter, 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. 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 pursuant to the schedule found at Minnesota State Statutes, Section 461.12, Subdivision 2, as amended, with the reference to “18 years” in said statute to be changed to “21 years” for purposes of this Ordinance. B. Individuals: Individuals found to be selling tobacco, tobacco products, tobacco related devices, electronic delivery devices, or nicotine or lobelia delivery devicestobacco to page 51 persons under 18 21 years of age in violation of this chapter shall be charged an administrative feeine as set forth by State Statute 461.12, Subdivision 3, as amended, with the reference to “18 years” in said statute to be changed to “21 years” for purposes of this Ordinance. C. Persons Under the Age of 21: Persons under the age of 21 who use a false identification to purchase or attempt to purchase tobacco, tobacco products, tobacco related devices, electronic delivery devices, or nicotine or lobelia delivery devices products may only be subject to a non-criminal, non-monetary penalty, including but not limited to: civil tobacco-related education classes, diversion programs, community services, or another penalty that the city believes will be appropriate and effective. The city Council attorney will consult with the courts, educators, parents, children and other interested partiesto determine an appropriate penalty for persons under the age of 21 in the city. The penalty may be established by ordinance and amended from time to time. CD. Misdemeanor And Other Prosecution: Nothing in this section shall prohibit the city attorney or county attorney from seeking prosecution as a misdemeanor against any person 21 years and older 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. DE. Penalties Reviewed Annually: Penalties in this section may be annually reviewed and new fine amounts adopted by resolution. 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 officercity council. 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 officercity council 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 page 52 for the findings of the hearing officercity council. A copy shall be provided to the applicant or license holder. Likewise, if the hearing officer city council 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: Regardless of whether a hearing is held pursuant to this section, Iif the hearing officer city council determines that a violation of this chapter did occur, that decision, along with the hearing officercity council's reasons for finding a violation and the 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 city council 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 city council must be filed with the district court within ten (10) days of the mailing of the hearing officercity council'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 before the city council is filed within the ten (10) day period provided for by this section, then the denial, penalty, and/or 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, and/or suspension and/or revocation to the applicant or license holder. 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 March 1, 2019. Adopted and ordained into an Ordinance this 20th day of November, 2018. CITY COUNCIL CITY OF MENDOTA HEIGHTS Neil Garlock, Mayor ATTEST ___________________________ Lorri Smith, City Clerk page 53 CITY OF MENDOTA HEIGHTS SUMMARY PUBLICATION OF ORDINANCE NO. 536 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 any person from selling, offering for sale, giving away, furnishing or otherwise delivering tobacco, tobacco products, tobacco related devices, electronic delivery devices, or nicotine or lobelia delivery devices to any person under the age of twenty-one (21) years. The ordinance will also prohibit the sale of 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. This restriction now includes the flavors of menthol, mint or wintergreen. The ordinance is effective on March 1, 2019. 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 20th day of November, 2018. CITY COUNCIL OF MENDOTA HEIGHTS /s/ Neil Garlock, Mayor Attest: /s/ Lorri Smith, City Clerk page 54 Flavored Tobacco Restrictions and/or Tobacco 21 Policies in Minnesota As of 11/2/18 Flavor restrictions (Excludes menthol) Flavor restrictions (Includes menthol) Tobacco 21 Edina St. Louis Park Plymouth Bloomington Shoreview Falcon Heights Effective date for all three policies 7/8/18 Minneapolis Effective 8/1/18 North Mankato St. Peter Richfield Roseville Duluth Saint Paul Effective 11/1/18 Robbinsdale Mendota Heights* Minnetonka Lauderdale Excelsior *No exception for tobacco shops page 55 MEMENEEMENIM 1 ECXBERG LAMMERS IIII�olllllllllllll�Ill u�uuuui IIL IIILw 11 AlI"" IIL..AW rb ini 2101 Grdi �r i n Oml I\Ui �r l i luno omn t s Prohibits tobacco license holders to sell or otherwise deliver products to individuals under 21 years of age. IN Includes c , tobacco-related devrc s, electronic delivery devices, nicotine and lobelia lw r products. Includes and wintergreen in list of LL Flavored 19 menthol, mint, — "Flavored Pr u " in all forms, in all places, will be banned via Ordinance. NOT a violation for persons under 21 to possess, use, or procure • No false ID for persons under 21 years of age. • Persons under 18 years of age (with parental consent) may do compliance checks. 1 NEENEENEENIM 1 ECXBERG LAMMERS IIII�olllllllllllll�Ill u�uuuui IIL IIILw 11 AlI"" IIL..AW """'rblbacco 2101 Grdi �r ia�� ice 1..........1.......... s • Penalties follow state law (M.S. 461 . 12, subd. 2) 4 for license — First violation.- $75 admiir iv fine. — Second violation (within ):iir iv fine. — Third violation (within ): administrativefine & minimum - suspension. • Individuals violating sale provisions: $50 administrative fine. • Persons under 21 years of age using a fake ID: non-criminal penalties 2 IIIIIIII lli Ii'iIi'i'�i 1 IIII�olllllllllllll�Ill u�uuuui IIL IIILw 11 AlI"" IIL..AW IIIIIIII lli Ii'iIi'i'�i 1 IIII�olllllllllllll�Ill ENIM u�uuuui IIL IIIECXBERG LAMMERS Lw 11 AlI"" IIL..AW """'rblbaia�� ice ..................... N� ol r I i ��r I Ice • License Revocation — Question.- Should Council consider for a 4th violation within ? — M.S. 461. 19allows u is lites to adopt more stringentregulations. • Individuals under 21 years of age not subject to criminal penalties. — EXCEPTION.- Individual u r 21 selling tobacco to under-under-age persons ( fine). • Consider adding sentence that retailers who do not check ID of valid tobacco buyer are not in violation of Ordinance. • No exception on Menthol and Flavored Bans — Other cities allow adult-only tobacco establishmentsadult-onlycontinue ll these. — Mendota Heights has no suchestablishments. IIIIIIII lli Ii'iIi'i'�i 1 IIII�olllllllllllll�Ill ENIM u�uuuui IIL IIIECXBERG LAMMERS Lw 11 AlI"" IIL..AW """'rblb N newspaper.• If approved, publish summary of Ordinance in official Request for City Council Action MEETING DATE: November 20, 2018 TO: Mayor Neil Garlock and City Council FROM: Mark McNeil, City Administrator Tim Benetti, Community Development Director SUBJECT: Resolution Authorizing Execution of a Contract for Private Development (TIF Dist. No. 2, Mendota Hts. Apartments – Michael Development – Phase II) Introduction City Council is requested to consider adopting Resolution No. 2018-91-56 which approves a new Contract for Private Development (or Development Agreement) between The Heights of Mendota North, LLC (Michael Development) and the City of Mendota Heights. This is related to Phase II of the Mendota Heights Apartments development. Background On June 20, 2017, the City Council adopted Resolution No. 2017-48, which approved the establishment of Tax Increment Financing District No. 2, a new redevelopment district within the city’s Municipal Development District No. 1. The TIF District was established to provide financial assistance to Michael Development for eligible expenses associated with the redevelopment of the former Mendota Motel and Larson Garden Center properties, located at 2160 and 2180 HWY 13. Phase I included a separate Contract for Development on a new 70-unit, market rate apartment building, with a TIF Revenue Note of up to $634,000 and a maximum 9-year term. This Phase II contract is for a 62-unit, senior market-rate apartment facility, with a proposed TIF Note of $700,000 and an 11-year term. This Contract for Private Development ensures the developer will complete the development and complies with certain provisions established under said agreement, which are directly related to the Tax Increment Financing District No. 2. A related memo from Stacie Kvilvang with Ehlers providing a brief explanation of the Development Agreement terms, along with a draft contract agreement are appended to this memo. Budget Impact The Developer is scheduled to receive regular payments of tax increment revenues once the Developer has incurred qualified costs and the building is completed. These payments are based on a “pay as you go” arrangement for the Developer, whereby the City is not liable for any up-front payments. The Developer deposited a $15,000 escrow to cover the costs of processing this TIF application, including financial and legal consultants’ fees in the review, analysis and preparation of this agreement. The district also provides an allowance up to 10% of said TIF funds to be used for reimbursement of certain administrative costs incurred by the city. Action Required Adopt Resolution No. 2018-91, a Resolution Authorizing Execution of a Contract for Private Development between City of Mendota Heights and The Heights of Mendota North, LLC (Michael Development). page 56 Memo To: Tim Benetti – Community Development Director From: Stacie Kvilvang - Ehlers Date: November 20, 2018 Subject: TIF Development Agreement Terms - Michael Development On November 7, 2018, the City Council reviewed preliminary terms for TIF assistance for development a 62-unit senior independent apartment community by Michael Development. The City was in agreement with the amount of TIF assistance and term discussed at the work session. Following are the main terms within the above referenced Agreement: 1. General a. Development Agreement with The Heights of Mendota North, LLC. 2. Development and Timing of Construction a. Construction of a 62-unit senior independent apartment community and related parking b. Must commence construction by June 1, 2019 and be completed by December 31, 2020 3. Tax Increment a. The City created Redevelopment TIF District No. 2 on June 20, 2017, which included the property they are developing upon b. The Developer will be reimbursed for qualified costs in the form of a pay-as- you-go note in the amount of $700,000 i. Qualified costs include demolition and site clearing, site utilities, Xcel lines/transformer work, storm water ponding and earthwork/excavation ii. Issued upon proof of expenditure of qualified costs iii. Term of the TIF Note will be for 11 years iv. Interest will be simple, non-compounding paid at the lower of 5.25% or their actual financing rate v. Developer will receive 90% of the tax increment generated from the project page 57 4. Taxes a. Developer shall pay all real property taxes b. Developer cannot seek administrative or judicial review of constitutionality of the taxes or a deferral or abatement of the taxes c. Developer must inform the City in writing if they intend to petition for a reduction in their taxable value. The TIF payments will be withheld, without interest, until the tax petition is settled or dismissed. 5. Payment of City Costs a. Acknowledges that the developer has deposited $15,000 with the City to date to cover administrative, legal and fiscal consultant expenses. The Developer is required to pay 100% of the costs associated with the financial analysis to determine the level of TIF, and negotiation and drafting of the TIF agreement. 6. Minimum Assessment Agreement a. The Developer is required to record a Minimum Assessment Agreement with the property. The minimum value on January 2, 2020 for taxes payable in 2021 is $4,960,000 (50% of value) and the minimum value on January 2, 2021 for taxes payable in 2022 and going forward is $9,920,000. The MAA will be in effect until the TIF Note is paid in full. Please contact me at 651-697-8506 with any questions. page 58 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY, MINNESOTA RESOLUTION 2018-91 RESOLUTION AUTHORIZING EXECUTION OF A CONTRACT FOR PRIVATE DEVELOPMENT (MENDOTA HEIGHTS APARTMENTS – MICHAEL DEVELOPMENT) WHEREAS, The Heights Of Mendota North, LLC (the "Developer") has requested the City of Mendota Heights, Minnesota (the "City") to assist with the financing of certain costs incurred in connection with the construction of a 62-unit market-rate apartment building to be constructed by the Developer (the "Project"); and WHEREAS, the Developer and the City have determined to enter into a Contract for Private Development providing for the City's tax increment financing assistance for the Project (the "Contract"). NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Mendota Heights, Minnesota, as follows: 1. The City Council hereby approves the Contract in substantially the form submitted, and the Mayor and City Administrator are hereby authorized and directed to execute the Contract on behalf of the City. 2. The approval hereby given to the Contract includes approval of such additional details therein as may be necessary and appropriate and such modifications thereof, deletions therefrom and additions thereto as may be necessary and appropriate and approved by the City officials authorized by this resolution to execute the Contract. The execution of the Contract by the appropriate officer or officers of the City shall be conclusive evidence of the approval of the Contract in accordance with the terms hereof. Adopted by the City Council of the City of Mendota Heights this 20th day of November, 2018. CITY COUNCIL CITY OF MENDOTA HEIGHTS ________________________________ Neil Garlock, Mayor ATTEST: ________________________________ Lorri Smith, City Clerk page 59 STATE OF MINNESOTA COUNTY OF DAKOTA CITY OF MENDOTA HEIGHTS I, Mark McNeill, the undersigned, being the duly qualified and acting City Administrator of the City Council of the City of Mendota Heights, Minnesota, DO HEREBY CERTIFY that I have carefully compared the attached and foregoing extract of minutes with the original minutes of a meeting of the City Council City held on the date therein indicated, which are on file and of record in my office, and the same is a full, true and complete transcript therefrom insofar as the same relates to a Resolution Authorizing Execution of a Contract for Private Development. WITNESS my hand as such City Administrator of the City Council of the City of Mendota Heights, Minnesota this 20th day of November, 2018. _____________________________ Mark McNeill City Administrator page 60 EXTRACT OF MINUTES OF MEETING OF THE CITY COUNCIL OF THE CITY OF MENDOTA HEIGHTS, MINNESOTA HELD: November 20, 2018 Pursuant to due call and notice thereof, a regular meeting of the City Council of the City of Mendota Heights, Dakota County, Minnesota, was duly called and held at the City Hall in said City on November 20, 2018, at 7:00 p.m. The following members were present: and the following were absent: Member ________________ introduced the following resolution and moved its adoption: page 61 11193287v1 CONTRACT FOR PRIVATE DEVELOPMENT BETWEEN THE CITY OF MENDOTA HEIGHTS, MINNESOTA AND THE HEIGHTS OF MENDOTA NORTH, LLC Dated: November 20, 2018 This document was drafted by: BRIGGS AND MORGAN (MLI) Professional Association 2200 IDS Center 80 South 8th Street Minneapolis, MN 55402 page 62 11193287v1 1 CONTRACT FOR PRIVATE DEVELOPMENT THIS CONTRACT FOR PRIVATE DEVELOPMENT (the "Agreement") is made as of the 20th day of November, 2018, by and between the CITY OF MENDOTA HEIGHTS, MINNESOTA, a municipal corporation and political subdivision organized and existing under the laws of the State of Minnesota (the "City"), and THE HEIGHTS OF MENDOTA NORTH, LLC, a Minnesota limited liability company (the "Developer"). RECITALS WHEREAS, the City has determined that there is a need to promote and secure (i) the prompt development of certain property located within the City, which property is not now in productive use or in its highest and best use, in a manner consistent with the City's Comprehensive Plan, and (ii) additional housing opportunities within the City, thereby improving living standards, and in connection therewith has previously created Municipal Development District No. 1 (the "Development District"), pursuant to Minnesota Statutes, Sections 469.124 through 469.133, as amended (the "Development District Act"), and has also adopted a Development Program for the Development District (the "Development Program"); and WHEREAS, in furtherance of the goals and objectives of the Development Program, the City has created Tax Increment Financing (Redevelopment) District No. 2 (the "TIF District"), pursuant to Minnesota Statutes, Sections 469.174 through 469.1794, as amended (the "TIF Act"), and has adopted a Tax Increment Financing Plan therefor (the "TIF Plan"), which provides for the use of tax increment financing in connection with certain development within the Development District and the TIF District; and WHEREAS, in order to achieve the objectives of the Development Program and the TIF Plan, and particularly to make certain land in the Development District and the TIF District available for development by private enterprise in conformance with the Development Program and the TIF Plan, the City has determined to assist the Developer with the financing of certain costs of the following project (the "Project"): the acquisition of certain real property in the City as described in EXHIBIT A of this Agreement (the "Development Property"), and the development of a market-rate apartment building, to be constructed on the Property, totaling approximately 62 units with surface and underground parking (the "Minimum Improvements"), through the issuance of a Tax Increment Financing Revenue Note, in the total estimated aggregate principal amount of $700,000 (the "TIF Note"), as more particularly set forth in this Agreement; and WHEREAS, the City believes that the development and construction of the Project and fulfillment of this Agreement are vital and are in the best interests of the City, as well as the health, safety and welfare of residents of the City, and in accordance with the public purposes and provisions of applicable state and local laws and requirements under which the Project has been undertaken and is being assisted; and WHEREAS, the requirements of the Business Subsidy Law, Minnesota Statutes, Section 116J.993 through 116J.995, do not apply to this Agreement pursuant to an exemption for housing. NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the other as follows: page 63 11193287v1 2 ARTICLE 1 DEFINITIONS 1.1 Definitions. The following terms shall have the meanings given in this Agreement, unless a different meaning clearly appears from the context: "Administrative Costs" is as defined in Section 2.2(11) of this Agreement. "Administrative Expenses" means expenses incurred by the City with respect to the Project and the TIF Plan, the TIF Note, or this Agreement, as defined in Section 469.174, Subdivision 14 of the TIF Act, and in amounts equal up to ten percent (10%) of the Tax Increment received by the City. "Affiliate" means any person directly or indirectly controlling or controlled by or under direct or indirect common control with a person and any purchaser or all or substantially all of the assets of such person. For this purpose, "control" means the power to direct management and policies, directly or indirectly, whether through ownership of voting securities, by contract or otherwise, and the terms "controlling" and controlled" have correlative meanings. "Agreement" means this Contract for Private Development, as the same may be from time to time modified, amended or supplemented. "Authorizing Resolution" means the resolution of the City Council of the City authorizing issuance of the TIF Note and the approval of this Agreement. "Business Day" means any day except a Saturday, Sunday or a legal holiday or a day on which banking institutions in the City are authorized by law or executive order to close. "City" means the City of Mendota Heights, Minnesota. "County" means Dakota County, Minnesota. "Developer" means The Heights of Mendota North, LLC, a Minnesota limited liability company, its successors and assigns; "Development District" means Municipal Development District No. 1. "Development Program" means the Development Program approved in connection with the Development District. "Development Property" means the real property located in the City, as described in EXHIBIT A attached to this Agreement. "Event of Default" means any of the events described in Section 4.1 hereof. "Minimum Assessment Agreement" means that certain Minimum Assessment Agreement by and between the City and the Developer, and certified to by the County Assessor, regarding the page 64 11193287v1 3 placement of a minimum market value for the Development Property and the Minimum Improvements, a form of which is attached hereto as EXHIBIT C. "Minimum Improvements" means development of a market-rate apartment building, to be constructed on the Development Property, totaling approximately 62 units with surface and underground parking. "Project" means the acquisition of the Development Property, and the construction of a market-rate apartment building thereon, totaling approximately 62 units, with surface and underground parking. "Qualified Costs" means the following categories of costs that may be reimbursed to the Developer by the City out of Tax Increment: (1) Cost of acquisition of the Development Property; (2) Cost of site improvements and preparation of the Development Property; (3) Utility costs to service the Development Property; and (4) Such other costs as are incurred by the Developer and reasonably determined by the City to constitute Qualified Costs under the TIF Act. "State" means the State of Minnesota. "Tax Increment" means 90% of the tax increment revenue derived from the Development Property, which has been received and retained by the City in accordance with the provisions of Section 469.177 of the TIF Act. "Termination Date" means the earlier of (i) the date the TIF District terminates by law, (ii) the date by which the City has received sufficient Tax Increment with respect to the Project to reimburse itself for the Administrative Expenses and the Developer for all principal and accrued interest on the TIF Note, (iii) February 1, 2032, or (iv) the date this Agreement is terminated or rescinded in accordance with its terms hereunder. "TIF Act" means Minnesota Statutes, Sections 469.174 through 469.1794, as amended. "TIF District" means Tax Increment Financing (Redevelopment) District No. 2, located within the Development District, which was qualified as a redevelopment district under the TIF Act. "TIF Note" means the Tax Increment Financing Revenue Note (The Heights of Mendota North, LLC) to be executed by the City and delivered to the Developer pursuant to Article III hereof, in the approximate principal amount of $700,000, a copy of which is attached hereto as EXHIBIT B. "TIF Note Payment Date" means each February 1 and August 1, commencing on August 1, 2021, and thereafter to and including the Termination Date; provided, that if any such TIF Note page 65 11193287v1 4 Payment Date should not fall on a Business Day, the TIF Note Payment Date shall be the next succeeding Business Day. "TIF Plan" means the Tax Increment Financing Plan, approved for the TIF District by the City Council of the City pursuant to Resolution No. 2017-48, adopted on June 20, 2017. "Unavoidable Delays" means delays, outside the control of the party claiming its occurrence, which are the direct result of strikes, other labor troubles, unusually severe or prolonged bad weather, acts of God, fire or other casualty to the Project, litigation commenced by third parties which, by injunction or other similar judicial action or by the exercise of reasonable discretion, directly results in delays, or acts of any federal, state or local governmental unit (other than the City) which directly result in delays. (The remainder of this page is intentionally left blank.) page 66 11193287v1 5 ARTICLE 2 REPRESENTATIONS AND WARRANTIES 2.1 Representations and Warranties of the City. The City makes the following representations and warranties: (1) The City is a municipal corporation and political subdivision and has the power to enter into this Agreement and carry out its obligations hereunder. (2) The TIF District is a "redevelopment district" within the meaning of Section 469.174, Subdivision 10 of the TIF Act. (3) The Project is in conformance with the development objectives set forth in the Development Program. Separately from this Agreement, any land use permits required as a part of the Project shall be governed by City land use ordinances, specific land use approvals and other agreements. (4) The City makes no representation or warranty, either express or implied, as to the Development Property or its condition or the soil conditions thereon, or that the Development Property shall be suitable for the Developer's purposes or needs. (5) The persons executing this Agreement and related agreements and documents on behalf of the City have the authority to do so and to bind the City by their actions. (6) The City has received no notice or communication from any local, State or federal official that the activities of the Developer or the City in the Development District or the TIF District may be or will be in violation of any law or regulation. The City is aware of no facts the existence of which would cause it to be in violation of any local, State or federal law, regulation or review procedure. (7) To finance certain costs within the TIF District, the City proposes, subject to the other provisions of this Agreement, to apply certain Tax Increment through the TIF Note to reimburse the Developer for the Qualified Costs in connection with the Project. The City neither pledges nor provides any other financial assistance to the Developer to reimburse for the Qualified Costs in connection with the Project. 2.2 Representations and Warranties of the Developer. The Developer makes the following representations and warranties: (1) The Developer is a Minnesota limited liability company duly organized and in good standing under the laws of the State, has power to enter into this Agreement and to perform its obligations hereunder and, by doing so, is not in violation of any provisions of its articles, bylaws or the laws of the State. (2) The Developer will cause the Project to be acquired, constructed, maintained and operated in compliance with the terms of this Agreement, the Development page 67 11193287v1 6 Program, the TIF Plan, all issued permits for the Project and all local, State and federal laws and regulations (including, but not limited to, environmental, zoning, energy conservation, building code and public health laws and regulations). (3) The Developer will secure adequate financing to complete the Project, and will provide adequate evidence of said financing for the construction of the Project. (4) The construction of the Project to the size and scope contemplated by this Agreement would not have been undertaken by the Developer, and in the opinion of the Developer would not be economically feasible within the reasonably foreseeable future, without the assistance and benefit to the Developer provided for in this Agreement. (5) Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement is prevented, limited by or conflicts with or results in a breach of, the terms, conditions or provision of any contractual restriction, evidence of indebtedness, agreement or instrument of whatever nature to which the Developer is now a party or by which it is bound, or constitutes a default under any of the foregoing. (6) So long as the Developer owns the Development Property, the Developer shall promptly advise the City in writing of all litigation or claims affecting any part of the Project, which may delay or require changes in construction of the Project, and all written complaints and charges made by any governmental authority materially affecting the Project or materially affecting the Developer or its business, which may delay or require changes in construction of the Project. (7) The Developer will cooperate with the City in resolution of any traffic, parking, trash removal or public safety problems which may arise in connection with the construction of the Project. The Developer will additionally construct the Project as provided herein in accordance with all local, State and federal energy conservation laws and regulations that are applicable to the Project. (8) The Developer will obtain in a timely manner all required permits, licenses and approvals, and will meet in a timely manner all requirements of all applicable local, State and federal laws and regulations which must be obtained or met before the Project may be lawfully constructed. The Developer did not obtain a building permit for any portion of the Project before the date of approval of the TIF Plan. (9) The Developer has made its own projections of Tax Increment and revenues to be generated from the Project and of the Developer's return on investment and the Developer has not relied on any assumptions, calculations, determinations or conclusions made by the City, its governing body members, officers or agents, including the independent contractors, consultants and legal counsel, servants and employees thereof, with respect to the foregoing or in determining to proceed with the Project. (10) The person or persons executing this Agreement and related agreements and documents on behalf of the Developer have the authority to do so and to bind the Developer by their actions. page 68 11193287v1 7 (11) The Developer has deposited $_________ in escrow with the City to pay for, or reimburse the City for payment of, all City-incurred expenses in connection with the issuance of the TIF Note, analyzing the need for tax increment financing assistance, and the preparation of this Agreement (collectively, the "Administrative Costs"). Administrative Costs include, but are not limited to, fees paid to attorneys, the City's independent municipal advisor, and any engineering consultants retained by the City in relation to the Project. The City shall pay the Administrative Costs from the escrow funds deposited by the Developer. If the City in good faith requires additional funds to pay for or reimburse the Administrative Costs, the City shall inform the Developer in writing of such expenses, and the Developer shall deposit the requested amount into escrow with the City within 10 business days after receipt of the written notice. (12) The Developer agrees for itself, its successors and assigns and every successor in interest to the Development Property, or any part thereof, that the Developer and such successors and assigns shall operate, or cause to be operated, the Project as a multifamily residential rental facility and shall devote the Development Property to, and in accordance with, the uses specified in this Agreement. (The remainder of this page is intentionally left blank.) 15,000.00 page 69 11193287v1 8 ARTICLE 3 PROJECT FINANCING AND ADMINISTRATION 3.1 Issuance of the TIF Note. The City shall reimburse the Developer for a portion of the costs incurred for the Project, as identified in this Agreement, through the issuance of the TIF Note, in substantially the form attached to this Agreement as EXHIBIT B. The principal amount of the TIF Note shall be in the original aggregate principal amount not-to-exceed $700,000. (1) The TIF Note shall be dated, issued in the principal amount stated above, and delivered to the Developer upon receipt by the City from the Developer of evidence of Qualified Costs (shown in the form of contractor certifications, invoices, lien waivers, or the like), incurred in an amount equal to or exceeding the final principal amount of the TIF Note. (2) The TIF Note shall be deemed validly issued and the unpaid principal of the TIF Note shall bear simple non-compounding interest from the date that the City has determined the paid invoices are in compliance with the terms of the Development Agreement, at the lower of 5.25% per annum or the Developer's interest rate on the Project financing as determined by the City's municipal advisor. Interest shall be computed on the basis of a 360 day year consisting of twelve (12) 30-day months. (3) The principal amount of the TIF Note and the interest thereon shall be payable solely and exclusively from Tax Increment, and shall, subject to the limitations set forth in Section 4.2 hereof, be conditioned on the Developer being compliant with the terms and provisions of this Agreement and all issued permits for the Project. (4) On each TIF Note Payment Date and subject to the provisions of the TIF Note, the City shall pay to the Developer, solely from the Tax Increment received by the City during the preceding six months (or, with respect to the first TIF Note Payment Date, in the period commencing on the date of issuance of the TIF Note through the day prior to the first TIF Note Payment Date) principal and accrued interest on the TIF Note. All such payments shall be applied first to the payment of accrued interest and then to the payment of the principal of the TIF Note. (5) If, on any TIF Note Payment Date, the Tax Increment for payment of the accrued and unpaid interest on the TIF Note is insufficient for such purposes, the difference shall be carried forward, with interest at the rate set forth in the TIF Note, and shall be paid if and to the extent that on a future TIF Note Payment Date there is Tax Increment in excess of the amounts needed to pay the accrued interest then due on the TIF Note. (6) The City's obligation to make payments on the TIF Note on any TIF Note Payment Date or any date thereafter shall, subject to the limitations set forth in Section 4.2 hereof, be conditioned upon the requirement that (A) there shall not at that time be an Event of Default that has occurred and is continuing under this Agreement or any issued permits for the Project, and (B) this Agreement shall not have been rescinded pursuant to Section 4.2(b) hereof. page 70 11193287v1 9 (7) The TIF Note shall be governed by and payable pursuant to the additional terms thereof, as set forth in EXHIBIT B, and as provided in the Authorizing Resolution, the terms of which are incorporated into this Agreement by reference. In the event of any conflict between the terms of the TIF Note and the terms of this Section, the terms of the TIF Note shall govern. The issuance of the TIF Note pursuant and subject to the terms of this Agreement, and the taking by the City of such additional actions as bond counsel for the City may require in connection therewith, are hereby authorized and approved by the City. (8) No agreements or provisions contained in this Agreement shall give rise to any pecuniary liability of the City or a charge against its general credit or taxing powers, or shall obligate the City financially in any way except with respect to the application of the Tax Increment as specifically provided in this Agreement and in the TIF Note. The TIF Note, including principal and any other payments however designated, and the interest due thereon do not and shall never constitute a general obligation of the City within the meaning of any state constitutional or statutory provision and do not and shall not constitute or give rise to a pecuniary liability or moral obligation of the City, the State or any of its political subdivisions, or a charge against its general credit or taxing powers, or to the extent permitted by law, any pecuniary liability of any officer, employee or agent of the City. The provisions of this paragraph are controlling notwithstanding anything in this Agreement to the contrary. (9) The estimate of Qualified Costs eligible for Tax Increment is based upon budget estimates submitted by the Developer. The Developer understands and acknowledges that if the Qualified Costs exceed the Tax Increment, the Developer will only be reimbursed for Qualified Costs in the principal amount of the TIF Note, and accrued interest thereon. 3.2 Developer Acknowledgments. The Developer understands and acknowledges the following: (1) The City makes no representations or warranties regarding the amount of Tax Increment that will be available, or that revenues pledged to repayment of the TIF Note will be sufficient to pay all or any of the amounts payable on the TIF Note. The City additionally makes no representations as to the sufficiency of the Development Property (including soil conditions or the presence of any hazardous substances on the Development Property) for the Project. Any estimates of Tax Increment available prepared by the City, or the City's independent municipal advisor, consultants, agents, employees or officers in connection with the TIF District or this Agreement are for the sole benefit of the City, and are not intended as representations on which the Developer or any purchaser of the TIF Note may rely. The Developer further understands and acknowledges that no assistance is being provided by the City under this Agreement except through the issuance of the TIF Note, and the Developer has no claim against any funds of the City except as set forth in the Authorizing Resolution and the TIF Note. (2) Up to ten percent (10%) of Tax Increment will be retained by the City for the on-going Administrative Expenses related to the TIF District. page 71 11193287v1 10 3.3 Construction of Minimum Improvements. The Developer agrees that it will construct the Minimum Improvements on the Development Property in substantial accordance with this Agreement and the plans, specifications, drawings, and related documents relating to the construction work to be performed on the Development Property. At all times prior to the Termination Date and during which the Minimum Improvements are owned by the Developer, the Developer will operate and maintain, preserve and keep the Minimum Improvements or cause such improvements to be maintained, preserved and kept in good repair and condition. The City has no obligation to operate or maintain the Minimum Improvements. The Developer additionally agrees not to engage in any financing that creates any mortgage or other encumbrance or lien upon the Development Property or the Minimum Improvements, whether by express agreement or operation of law, or suffer any encumbrance or lien to be made on or attached to the Development Property or the Minimum Improvements, other than the liens or encumbrances directly and solely related to the acquisition, construction and equipping of the Development Property and the Minimum Improvements. 3.4 Commencement and Completion of Construction. Subject to Unavoidable Delays, the Developer shall commence construction of the Minimum Improvements no later than June 1, 2019. Such commencement shall at a minimum consist of subsurface excavation activities on the Development Property. Subject to Unavoidable Delays, the Developer shall substantially complete the construction of the Minimum Improvements no later than December 31, 2020. The Developer shall make such reports to the City regarding construction of the Minimum Improvements as the City deems necessary or helpful in order to monitor progress on construction of the Minimum Improvements. (The remainder of this page is intentionally left blank.) page 72 11193287v1 11 ARTICLE 4 EVENTS OF DEFAULT; INDEMNIFICATION 4.1 Events of Default Defined. The following shall be "Events of Default" under this Agreement and the term "Event of Default" shall mean whenever it is used in this Agreement any one or more of the following events: (1) Failure by the Developer to timely pay any ad valorem real property taxes assessed with respect to the Development Property. (2) Failure by the Developer to cause the construction of the Project to be completed pursuant to the terms, conditions and limitations of this Agreement or any issued permits for the Project. (3) Failure of the Developer to observe or perform any other covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement. (4) If the Developer shall: (a) file any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the United States Bankruptcy Act of 1978, as amended or under any similar federal or state law; or (b) make an assignment for the benefit of its creditors; or (c) admit in writing its inability to pay its debts generally as they become due; or (d) be adjudicated as bankrupt or insolvent; or if a petition or answer proposing the adjudication of the Developer as a bankrupt or its reorganization under any present or future federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within 60 days after the filing thereof; or a receiver, trustee or liquidator of the Developer, or of the Project, or part thereof, shall be appointed in any proceeding brought against the Developer, and shall not be discharged within 60 days after such appointment, or if the Developer, shall consent to or acquiesce in such appointment. 4.2 Remedies on Default. Whenever any Event of Default referred to in Section 4.1 occurs and is continuing, the City, as specified below, may take any one or more of the following actions after the giving of 30 days' written notice to the Developer, citing with specificity the item or items of default and notifying the Developer that it has 30 days within which to cure said Event of Default. If the Event of Default is by its nature incurable within 30 days, the City shall not take page 73 11193287v1 12 any one or more of the following actions below if the Developer, in the good-faith opinion of the City, is undertaking action to cure the Event of Default as soon as reasonably possible. (1) The City may suspend its performance under this Agreement and the TIF Note until it receives written assurances from the Developer, deemed adequate by the City, that the Developer will cure its default and continue its performance under this Agreement, and no interest shall accrue on the TIF Note for the benefit of the Developer while performance is suspended in accordance with this Section 4.2. (2) The City may cancel and rescind this Agreement and the TIF Note. (3) The City may take any action, including legal or administrative action, in law or equity, which may appear necessary or desirable to enforce performance and observance of any obligation, agreement, or covenant of the Developer under this Agreement. (4) Notwithstanding any provision to the contrary herein, the City agrees that if the Developer completes construction of the Project and has assigned the TIF Note to an assignee, which has been separately approved by the City, the City will not exercise any remedies set forth in this Section 4.2 which would have the effect of reducing, suspending or terminating any payments on the TIF Note. This paragraph shall not limit the City's remedies provided under any other agreement between the City and the Developer, provided such remedies do not have the effect of reducing, suspending or terminating any payments on the TIF Note. 4.3 No Remedy Exclusive. No remedy herein conferred upon or reserved to the City is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. 4.4 No Implied Waiver. In the event any agreement contained in this Agreement should be breached by any party and thereafter waived by any other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other concurrent, previous or subsequent breach hereunder. 4.5 Agreement to Pay Attorney's Fees and Expenses. Whenever any Event of Default occurs and the City shall employ attorneys or incur other expenses for the collection of payments due or to become due or for the enforcement or performance or observance of any obligation or agreement on the part of the Developer herein contained, the Developer agrees that it shall, on demand therefor, pay to the City the reasonable fees of such attorneys and such other expenses so incurred by the City. page 74 11193287v1 13 4.6 Indemnification of City. (1) The Developer releases from and covenants and agrees that the City, its governing body members, officers, agents, including the independent contractors, consultants and legal counsel, and employees thereof (collectively, the "Indemnified Parties"), shall not be liable for and agrees to indemnify and hold harmless the Indemnified Parties against any loss or damage to property or any injury to or death of any person occurring at or about or resulting from any defect in the Project, provided that the foregoing indemnification shall not be effective for any intentional actions of the Indemnified Parties that are not contemplated by this Agreement. (2) Except for any willful misrepresentation or any willful or wanton misconduct of the Indemnified Parties, the Developer agrees to protect and defend the Indemnified Parties, now and forever, and further agrees to hold the aforesaid harmless from any claim, demand, suit, action or other proceeding whatsoever by any person or entity whatsoever arising or purportedly arising from the actions or inactions of the Developer (or if other persons acting on its behalf or under its direction or control) under this Agreement, or the transactions contemplated hereby or the acquisition, construction, installation, ownership, and operation of the Project. (3) All covenants, stipulations, promises, agreements and obligations of the City contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the City and not of any governing body member, officer, agent, servant or employee of the City, as the case may be. (The remainder of this page is intentionally left blank.) page 75 11193287v1 14 ARTICLE 5 INSURANCE 5.1 Required Insurance. (1) The Developer agrees to provide and maintain at all times during the process of constructing the Minimum Improvements and, from time to time at the request of the City, will furnish the City with proof of payment of premiums on: (i) Builder's risk insurance, written on the so called "Builder's Risk Completed Value Basis," in an amount equal to one hundred percent (100%) of the insurable value of the Minimum Improvements at the date of completion, and with coverage available in nonreporting form on the so called "all risk" form of policy; (ii) Comprehensive general liability insurance (including operations, contingent liability, operations of subcontractors, completed operations and contractual liability insurance) together with an Owner's Contractor's Policy with limits against bodily injury and property damage of not less than $1,500,000 for each occurrence (to accomplish the above required limits, an umbrella excess liability policy may be used); and (iii) Workers' compensation insurance, with statutory coverage. The policies of insurance required pursuant to clauses (i) and (ii) above shall be placed with financially sound and reputable insurers licensed to transact business in the State. The policy of insurance delivered pursuant to clause (i) above shall contain an agreement of the insurer to give not less than thirty (30) days' advance written notice to the City in the event of cancellation of such policy or change affecting the coverage thereunder. The City shall be named as an additional insured under the policies of insurance referred to in (i) and (ii) above. (2) Upon completion of construction of the Minimum Improvements, and prior to the Termination Date, the Developer shall maintain, or cause to be maintained, at its cost and expense, and from time to time at the request of the City shall furnish proof of the payment of premiums on, insurance as follows: (i) Insurance against loss or damage to the Minimum Improvements under a policy or policies covering such risks as are ordinarily insured against by similar businesses, including (without limiting the generality of the foregoing) fire, extended coverage, vandalism and malicious mischief, heating system explosion, water damage, demolition, debris removal, collapse and flood, in an amount not less than the full insurable replacement value of the Minimum Improvements. No policy of insurance shall be so written that the proceeds thereof will produce less than the minimum coverage required by the preceding sentence, by reason of coinsurance provisions or otherwise, without the prior consent thereto in writing by the City. The term "full insurable replacement value" shall mean the actual replacement cost of the Minimum Improvements and shall be determined from time page 76 11193287v1 15 to time at the request of the City, but not more frequently than once every three years, by an insurance consultant or insurer, selected and paid for by the Developer and approved by the City; and (ii) Such other insurance, including worker's compensation insurance respecting all employees of the Developer, in such amount as is customarily carried by like organizations engaged in like activities of comparable size and liability exposure. In lieu of any of the foregoing, the Developer may provide assurance to the City that the Developer has self-insured for the amounts and terms satisfying this Section. (3) The parties agree that all of the provisions set forth in this Article shall terminate upon the Termination Date. 5.2 Evidence of Insurance. All insurance required in this Article shall be taken out and maintained in responsible insurance companies selected by the Developer which are authorized under the laws of the State to assume the risks covered thereby. The Developer agrees to deposit with the City copies of policies evidencing all such insurance, or a certificate or certificates or binders of the respective insurers stating that such insurance is in force and effect. Unless otherwise provided in this Article, each policy shall contain a provision that the insurer shall not cancel nor materially modify the policy without giving written notice to the Developer and the City at least 30 days before the cancellation or modification becomes effective. In lieu of separate policies, the Developer may maintain a single policy, blanket or umbrella policies, or a combination thereof, having the coverage required herein, in which event the Developer shall deposit with the City a certificate or certificates of the respective insurers as to the amount of coverage in force upon the Minimum Improvements. 5.3 Notification; Repair, Reconstruction and Restoration. So long as the Developer is the owner thereof and until the Termination Date, the Developer agrees to notify the City immediately in the case of damage exceeding $50,000 in amount to, or destruction of, the Minimum Improvements, or any portion thereof resulting from fire or other casualty. Subject to the rights of applicable lenders, in such event the Developer shall forthwith repair, reconstruct, and restore the Minimum Improvements to substantially the same or an improved condition or value as it existed prior to the event causing such damage and, to the extent necessary to accomplish such repair, reconstruction, and restoration, the Developer will apply the net proceeds of any insurance relating to such damage received by the Developer to the payment or reimbursement of the costs thereof. Any net proceeds remaining after completion of such repairs, reconstruction and restoration shall be the property of the Developer. In the event the Developer does not repair, reconstruct or restore the Minimum Improvements, the City shall have no further obligation to make payments to the Developer under the TIF Note. 5.4 Reconstruction of Minimum Improvements. If the Minimum Improvements are damaged or destroyed before or after completion thereof, but prior to the Termination Date, and the net proceeds from the Developer's applicable insurance policies are sufficient to pay all costs related thereto, and the holder of any mortgage covering the Development Property consents thereto, then the Developer shall commence the reconstruction of the Minimum Improvements page 77 11193287v1 16 within 180 days of the availability of such insurance proceeds. The Developer's obligation to reconstruct the Minimum Improvements shall end on the Termination Date. page 78 11193287v1 17 ARTICLE 6 USE OF TAX INCREMENT 6.1 Use of Tax Increment. Except with respect to its obligations to the Developer under this Agreement in connection with the Tax Increment, the City shall be free to use any Tax Increment it receives from the TIF District for any purpose for which such Tax Increment may lawfully be used under the TIF Act and pursuant to other general provisions of State law, and the City shall have no obligations to the Developer with respect to the use of such Tax Increment. 6.2 Reimbursement of Tax Increment. Section 469.176, Subdivision 4j of the TIF Act limits the use of Tax Increment in a redevelopment district to specific permitted uses. Section 469.1771, Subdivision 3 of the TIF Act requires the City to pay the County for Tax Increment distributed to the City and used to assist a project which does not qualify for tax increment assistance. If the City is required to pay Tax Increment to the County or any other governmental entity pursuant to Section 469.1771 of the TIF Act, or any other provision of the TIF Act, by reason of any Developer act or omission that is inconsistent with or contrary to the terms of this Agreement, the Developer agrees, for itself and its successors and assigns, to reimburse a similar amount to the City within 30 days' written notice from the City. This obligation to reimburse Tax Increment to the City shall run with the Development Property, and each subdivided part thereof, and shall bind the Developer and its successors and assigns. The City is authorized to undertake all necessary legal action to recover said amounts described in this Section from the Developer. Any sum owed under this Section but not reimbursed by the Developer or its successors and assigns shall remain a lien against the Development Property and the Minimum Improvements, or any part thereof, until paid. 6.3 Right to Collect Delinquent Taxes. The Developer acknowledges that the City is providing substantial aid and assistance in furtherance of the completion of the Minimum Improvements through issuance of the TIF Note. The Developer understands that the Tax Increment pledged to payment of the TIF Note is derived from real estate taxes on the Development Property and the Minimum Improvements, which taxes must be promptly, timely, and fully paid. To that end, the Developer agrees for itself, its successors and assigns, in addition to the obligation pursuant to State statute to pay real estate taxes, that it is also obligated by reason of this Agreement, through the Termination Date, to pay before delinquency all real estate taxes assessed against the Development Property and the Minimum Improvements. The Developer acknowledges that this obligation creates a contractual right on behalf of the City to sue the Developer or its successors and assigns to collect delinquent real estate taxes, and any penalty or interest thereon, and to pay over the same as a tax payment to the County. In any such suit, the City shall also be entitled to recover from the Developer the City's costs, expenses and reasonable attorney fees. Nothing in this Section shall prevent the Developer from contesting the amount of real estate taxes (whether because of valuation, classification or otherwise, but subject always to the requirements and restrictions of the Minimum Assessment Agreement) in accordance with State law. page 79 11193287v1 18 6.4 Reduction of Taxes. (1) The Developer agrees that through the Termination Date it will not cause a reduction in the real property taxes paid in respect of the Development Property through: (i) willful destruction of the Development Property or any part thereof; (ii) willful refusal to reconstruct damaged or destroyed property from insurance proceeds available to the Developer for such purposes; (iii) application for a deferral of real property tax on the Development Property pursuant to any law or regulation; or (iv) conveyance or transfer of the Development Property to any entity that is exempt from payment of real property taxes under State law. (2) Subject always to the requirements and restrictions of the Minimum Assessment Agreement, the Developer may use any administrative or legal process provided under State law to seek a reduction of market value of the Development Property and the Minimum Improvements for ad valorem tax purposes, provided that (i) promptly upon filing any petition or claim with any tax official, the Developer shall provide written notice of such action to the City, and (ii) if the Developer files such a position or claim, the City will withhold payment of any Tax Increment (without interest) that is attributable to the tax payable year that is the subject of the petition or claim until the petition or claim is fully resolved such that the County has finally determined the amount of property taxes payable with respect to the Development Property for that year. 6.5 Minimum Assessment Agreement. The parties hereto acknowledge and agree to execute that certain Minimum Assessment Agreement, a form of which is attached hereto as EXHIBIT C. The Minimum Assessment Agreement will provide that the minimum market value which shall be assessed for ad valorem tax purposes for the Development Property, together with the Minimum Improvements constructed thereon, shall be (i) $4,960,000 as of January 2, 2020, for taxes payable in 2021, and (ii) $9,920,000 as of January 2, 2021, for taxes payable in 2022, notwithstanding the progress of construction of the Minimum Improvements by such date, and said minimum value shall remain in effect as of each January 2 thereafter until the earlier of the following: (i) the date of receipt by the City of the final payment from the County of Tax Increment from the TIF District; or (ii) the date when the TIF Note and any interfund loan or loans attributable to the TIF District have been fully paid or defeased in accordance with their terms. The events referred to in this paragraph shall be evidenced by a certificate or affidavit in recordable form executed by the City. The Minimum Assessment Agreement shall be recorded with the County Recorder's Office. The Developer shall pay all costs of recording. page 80 11193287v1 19 ARTICLE 7 PROHIBITIONS AGAINST ASSIGNMENT AND TRANSFER 7.1 Representation as to Development. The Developer represents and agrees that its undertakings pursuant to this Agreement are and will be for the purpose of development of the Development Property and the Minimum Improvements and not for speculation in land holding. 7.2 Prohibition Against Developer's Transfer of Development Property and Assignment of Agreement. The Developer represents and agrees that prior to issuance of a Certificate of Occupancy by the City for the Minimum Improvements: (1) Except only by way of security for, and only for the purpose of obtaining financing necessary to enable the Developer or any successor-in-interest to the Development Property, or any part thereof, to perform its obligations with respect to making, owning or operating the Minimum Improvements under this Agreement, and any other purpose authorized by this Agreement, the Developer has not made or created and will not make or create or suffer to be made or created any total or partial sale, assignment, conveyance, or lease, or any trust or power, or transfer in any other mode or form of or with respect to this Agreement or the Development Property or any part thereof or any interest therein, or any contract or agreement to do any of the same, without the prior written approval of the City, unless the Developer remains liable and bound by this Agreement, in which event the City's approval is not required. In the absence of a specific written agreement by the City to the contrary, no such transfer or approval by the City thereof shall be deemed to relieve the Developer or any other party bound in any way by this Agreement or otherwise with respect to the construction of the Minimum Improvements from any of its obligations with respect thereto. (2) In the event the Developer, upon transfer or assignment of the Development Property or any portion thereof, seeks to be released from its obligations under this Agreement as to the portions of the Development Property that are transferred or assigned, the City shall be entitled to require, except as otherwise provided in this Agreement, as conditions to any such release that: (i) Any proposed transferee shall have the qualifications and financial responsibility, in the reasonable judgment of the City, necessary and adequate to fulfill the obligations undertaken in this Agreement by the Developer as to the portion of the Minimum Improvements or the Development Property to be transferred. (ii) Any proposed transferee, by instrument in writing satisfactory to the City and in form recordable among the County's land records, shall, for itself and its successors and assigns, and expressly for the benefit of the City, have expressly assumed all of the obligations of the Developer under this Agreement as to the portion of the Minimum Improvements or the Development Property to be transferred and agreed to be subject to all the conditions and restrictions to which the Developer is subject as to such portion; provided, however, that the fact that page 81 11193287v1 20 any transferee of, or any other successor-in-interest whatsoever to, the Minimum Improvements or the Development Property, or any part thereof, shall not, for whatever reason, have assumed such obligations or so agreed, and shall not (unless and only to the extent otherwise specifically provided in this Agreement or agreed to in writing by the City) deprive the City of any rights or remedies or controls with respect to the Development Property or any part thereof or the construction of the Minimum Improvements; it being the intent of the parties as expressed in this Agreement that (to the fullest extent permitted at law and in equity and excepting only in the manner and to the extent specifically provided otherwise in this Agreement) no transfer of, or change with respect to, ownership in the Minimum Improvements or the Development Property or any part thereof, or any interest therein, however consummated or occurring, and whether voluntary or involuntary, shall operate, legally or practically, to deprive or limit the City of or with respect to any rights or remedies or controls provided in or resulting from this Agreement with respect to the Minimum Improvements or the Development Property that the City would have had, had there been no such transfer. In the absence of specific written agreement by the City to the contrary, no transfer or approval by the City thereof shall be deemed to relieve the Developer, or any other party bound in any way by this Agreement or otherwise with respect to the construction of the Minimum Improvements, from any of its obligations with respect thereto. (iii) Any and all instruments and other documents involved in effecting the transfer of any interest in this Agreement or the Minimum Improvements or the Development Property governed by this Article shall be in a form reasonably satisfactory to the City. (3) Any notice of rejection from the City shall contain detailed reasons for the rejection. The City's approval of any transfer shall not be unreasonably withheld. In the event the foregoing conditions are satisfied, the Developer shall be released from its obligation under this Agreement as to the portion of the Minimum Improvements or the Development Property that is transferred, assigned or otherwise conveyed. (4) After the Minimum Improvements have been completed and a Certificate of Occupancy has been issued by the City, the Developer may transfer or assign any portion of the Development Property or the Developer's interest in this Agreement without the prior written consent of the City, provided that until the occurrence of the Termination Date, the transferee or assignee is bound by all the Developer's obligations hereunder. Prior to any such transfer or assignment, the Developer shall submit to the City written evidence of any such transfer or assignment, including the transferee or assignee's express assumption of the Developer's obligations under this Agreement. If the Developer fails to provide such evidence of transfer and assumption, the Developer shall remain bound by all of its obligations under this Agreement. 7.3 Affiliate. The prohibitions of this Article do not apply to any transfer of the Project to an Affiliate of the Developer. page 82 11193287v1 21 ARTICLE 8 ADDITIONAL PROVISIONS 8.1 Conflicts of Interest. No member of the governing body or other official of the City shall have any financial interest, direct or indirect, in this Agreement, the Development Property or the Project, or any contract, agreement or other transaction contemplated to occur or be undertaken thereunder or with respect thereto, nor shall any such member of the governing body or other official participate in any decision relating to the Agreement which affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested. No member, official or employee of the City shall be personally liable to the City in the event of any default or breach by the Developer or successor or on any obligations under the terms of this Agreement. 8.2 Titles of Articles and Sections. Any titles of the several parts, articles and sections of the Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. 8.3 Notices and Demands. Except as otherwise expressly provided in this Agreement, a notice, demand or other communication under this Agreement by any party to any other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally, and (1) in the case of the Developer is addressed to or delivered personally to: The Heights of Mendota North, LLC 971 Sibley Memorial Hwy, Suite 300 Lilydale, Minnesota 55118 Attention: Michael J. Swenson with copy to: (Developer's legal counsel) Larkin, Hoffman, Daly & Lindgren, Ltd. 8300 Norman Center Drive, Suite 1000 Minneapolis, Minnesota 55437-1060 Attention: Thomas P. Stoltman, Esq. (2) in the case of the City is addressed to or delivered personally to the City at: City of Mendota Heights 1101 Victoria Curve Mendota Heights, Minnesota 55118 Attention: City Administrator page 83 11193287v1 22 With copy to: Briggs and Morgan, P.A. 2200 IDS Center 80 South 8th Street Minneapolis, MN 55402 Attention: Mary Ippel or at such other address with respect to any such party as that party may, from time to time, designate in writing and forward to the other, as provided in this Section. 8.4 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. 8.5 Law Governing. This Agreement will be governed and construed in accordance with the laws of the State. 8.6 Expiration. This Agreement shall expire on the Termination Date. 8.7 Provisions Surviving Rescission or Expiration. Sections 4.5 (Agreement to Pay Attorney's Fees and Expenses) and 4.6 (Indemnification of City) shall survive any rescission, termination or expiration of this Agreement with respect to or arising out of any event, occurrence or circumstance existing prior to the date thereof. 8.8 Governing Law; Venue. This Agreement shall be construed in accordance with the laws of the State. Any dispute arising from this Agreement shall be heard in the State or federal courts of Minnesota, and all parties waive any objection to the jurisdiction thereof, whether based on convenience or otherwise. 8.9 Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to its subject matter and it supersedes all prior contemporaneous agreements, representations, and understandings of the parties pertaining to the subject matter of this Agreement. This Agreement may be modified, amended, terminated, or waived, in whole or in part, only by a writing signed by all of the parties. 8.10 Re-execution of Documents. The City and the Developer agree to re-execute any documents which may be necessary to correct an error or to enable said document to be filed of record. 8.11 Severability. If any provision or application of this Agreement is held unlawful or unenforceable in any respect, such illegality or unenforceability shall not affect other provisions or applications that can be given effect, and this Agreement shall be construed as if the unlawful or unenforceable provision or application had never been contained herein or prescribed hereby. page 84 S-1 IN WITNESS WHEREOF, the City has caused this Contract for Private Development to be duly executed in its name and on its behalf and its seal to be hereunto duly affixed, and the Developer has caused this Agreement to be duly executed in its name and on its behalf, on or as of the date first above written. CITY OF MENDOTA HEIGHTS, MINNESOTA By_______________________________ Neil Garlock, Mayor By_______________________________ Lorri Smith, City Clerk (SEAL) (City signature page for the Contract for Private Development, by and between the City of Mendota Heights, Minnesota, and The Heights of Mendota North, LLC) page 85 S-2 THE HEIGHTS OF MENDOTA NORTH, LLC By: ___________________________________ Its: ___________________________________ (Developer signature page for the Contract for Private Development, by and between the City of Mendota Heights, Minnesota, and The Heights of Mendota North, LLC) page 86 A-1 EXHIBIT A DESCRIPTION OF DEVELOPMENT PROPERTY Property located in the City of Mendota Heights, Dakota County, Minnesota with the following parcel identification numbers and/or legal description: 277520005020 277520005050 277520005070 277520005110 277520005110 277520005160 277520005380 277520005420 277520005421 page 87 B-1 EXHIBIT B FORM OF TIF NOTE No. R-1 $700,000 UNITED STATES OF AMERICA STATE OF MINNESOTA COUNTY OF DAKOTA CITY OF MENDOTA HEIGHTS TAX INCREMENT FINANCING REVENUE NOTE (THE HEIGHTS OF MENDOTA NORTH, LLC) The City of Mendota Heights, Minnesota (the "City"), hereby acknowledges itself to be indebted and, for value received, hereby promises to pay the amounts hereinafter described (the "Payment Amounts") to The Heights of Mendota North, LLC, a Minnesota limited liability company (the "Developer"), or its registered assigns (the "Registered Owner"), but only in the manner, at the times, from the sources of revenue, and to the extent hereinafter provided. The principal amount of this Note shall equal from time to time the principal amount stated above, as reduced to the extent that such principal installments shall have been paid in whole or in part pursuant to the terms hereof; provided that the sum of the principal amount listed above shall in no event exceed Six Hundred Thirty Four Thousand and No/100 Dollars ($700,000.00), as provided in that certain Contract for Private Development, dated as of November 20, 2018, as the same may be amended from time to time (the "Development Agreement"), by and between the City and the Developer. This Note shall be deemed validly issued and the unpaid principal amount hereof shall bear interest from the date that the Developer has submitted to the City and the City has determined that the closing statement, purchase agreement, and paid invoices in the amount of the Reimbursement Amount (as defined in the Development Agreement) are in compliance with the terms of the Development Agreement at the simple non-compounded rate of ______________________ percent (____%) per annum. Interest shall be computed on the basis of a 360 day year consisting of twelve (12) 30-day months. All capitalized but undefined terms herein shall be defined as in the Development Agreement. The amounts due under this Note shall be payable on each February 1 and August 1, commencing on August 1, 2021 and thereafter to and including the Termination Date, or, if the first payment date should not be on a Business Day, the payment shall be made on the next succeeding Business Day (the "Payment Dates"). On each Payment Date the City shall pay by check or draft mailed to the person that was the Registered Owner of this Note at the close of the last business day of the City preceding such Payment Date an amount equal to the Tax Increment received by the City during the six-month period preceding such Payment Date (or, with respect to the first Payment Date, in the period commencing on the date of issuance of this Note through the day that is prior to the first Payment Date). All payments made by the City under this Note page 88 B-2 shall first be applied to accrued interest and then to principal. This Note is pre-payable by the City, without penalty, in whole or in part, on any date. The Payment Amounts due hereon shall be payable solely from 90% of Tax Increment derived from the Development Property within the City's Tax Increment Financing District No. 2 (the "TIF District") within its Municipal Development District No. 1, which is paid to the City and which the City is entitled to retain pursuant to the provisions of Minnesota Statutes, Sections 469.174 through 469.1794, as the same may be amended or supplemented from time to time (the "TIF Act"). This Note shall terminate and be of no further force and effect following the Termination Date. The City makes no representation or covenant, express or implied, that the Tax Increment will be sufficient to pay, in whole or in part, the amounts which are or may become due and payable hereunder. In the event Tax Increment is not sufficient, the City is not responsible to further fund or reimburse the Developer (or its assigns or creditors) for any such shortfall. The City is not responsible to fund or reimburse any obligation of the Developer (or its assigns or creditors) unless expressly stated in this Agreement. Subject to the terms of the Development Agreement, the City's payment obligations hereunder shall be further conditioned on the fact that no Event of Default under the Development Agreement shall have occurred and be continuing at the time payment is otherwise due hereunder, but such unpaid amounts shall become payable if said Event of Default shall thereafter have been cured; and further, if pursuant to the occurrence of an Event of Default under the Development Agreement the City elects, subject to the provisions of Section 4.2 of the Development Agreement, to cancel and rescind the Development Agreement, the City shall have no further debt or obligation under this Note whatsoever. Reference is hereby made to all of the provisions of the Development Agreement, including without limitation Section 3.1 thereof, for a fuller statement of the rights and obligations of the City to pay the principal of this Note, and said provisions are hereby incorporated into this Note as though set out in full herein. This Note is a special, limited revenue obligation and not a general obligation of the City and is payable by the City only from the sources and subject to the qualifications stated or referenced herein. This Note is not a general obligation of the City, and neither the full faith and credit nor the taxing powers of the City are pledged to the payment of the principal of this Note and no property or other asset of the City, save and except the above referenced Tax Increment, is or shall be a source of payment of the City's obligations hereunder. This Note is issued by the City in aid of financing a project pursuant to and in full conformity with the Constitution and laws of the State of Minnesota, including the TIF Act. This Note may be assigned only with the consent of the City. In order to assign the Note, the assignee shall surrender the same to the City either in exchange for a new fully registered note or for transfer of this Note on the registration records for the Note maintained by the City. Each permitted assignee shall take this Note subject to the foregoing conditions and subject to all provisions stated or referenced herein. page 89 B-3 IT IS HEREBY CERTIFIED AND RECITED that all acts, conditions, and things required by the Constitution and laws of the State of Minnesota to be done, to have happened, and to be performed precedent to and in the issuance of this Note have been done, have happened, and have been performed in regular and due form, time, and manner as required by law; and that this Note, together with all other indebtedness of the City outstanding on the date hereof and on the date of its actual issuance and delivery, does not cause the indebtedness of the City to exceed any constitutional or statutory limitation thereon. IN WITNESS WHEREOF, the City of Mendota Heights, Minnesota, by its City Council, has caused this Note to be executed by the manual signatures of its Mayor and City Clerk and has caused this Note to be dated as of ___________________, 20____. _________________________________ _______________________________ City Clerk Mayor DO NOT EXECUTE UNTIL EVIDENCE OF QUALIFIED COSTS ARE GIVEN TO THE CITY - REFER TO SECTION 3.3(1). page 90 B-4 CERTIFICATION OF REGISTRATION It is hereby certified that the foregoing Tax Increment Financing Revenue Note was registered in the name of The Heights of Mendota North, LLC, and that, at the request of the Registered Owner of this Note, the undersigned has this day registered the Note in the name of such Registered Owner, as indicated in the registration blank below, on the books kept by the undersigned for such purposes. NAME AND ADDRESS OF REGISTERED OWNER DATE OF REGISTRATION SIGNATURE OF CITY ADMINISTRATOR The Heights of Mendota North, LLC 971 Sibley Memorial Hwy, Suite 300 Lilydale, Minnesota 55118 , 20 , 20 page 91 11193287v1 C-1 EXHIBIT C FORM OF MINIMUM ASSESSMENT AGREEMENT MINIMUM ASSESSMENT AGREEMENT BETWEEN THE CITY OF MENDOTA HEIGHTS, MINNESOTA AND THE HEIGHTS OF MENDOTA NORTH, LLC AND CERTIFIED BY: DAKOTA COUNTY ASSESSOR'S OFFICE Dated as of: _______________ This document was drafted by: BRIGGS AND MORGAN (MLI) Professional Association 2200 IDS Center 80 South 8th Street Minneapolis, MN 55402 page 92 11193287v1 C-2 MINIMUM ASSESSMENT AGREEMENT THIS MINIMUM ASSESSMENT AGREEMENT (the "Agreement"), is made on or as of the ________________, 20__, by and between the City of Mendota Heights, Minnesota, a municipal corporation and political subdivision existing under the laws of the State of Minnesota (the "City"), and The Heights of Mendota North, LLC, a Minnesota limited liability company (the "Developer"). WITNESSETH, that WHEREAS, on or before the date hereof, the City and the Developer entered into a Contract for Private Development (the "Development Agreement"), pursuant to which the City is to provide tax increment financing assistance to the Developer, derived from certain real property (the "Development Property") located within the City's Municipal Development District No. 1 and Tax Increment Financing District No. 2; and WHEREAS, pursuant to the Development Agreement, the Developer is obligated to acquire the Development Property, legally described on EXHIBIT A attached hereto, and construct certain improvements thereon, including a market-rate apartment building totaling approximately 62 units, with surface and underground parking (the "Minimum Improvements"); and WHEREAS, the City and the Developer desire to establish a minimum market value for the Development Property and the Minimum Improvements to be constructed thereon, pursuant to Section 469.177, Subdivision 8 of the TIF Act; and WHEREAS, the City and the Dakota County Assessor (the "Assessor") have reviewed the preliminary plans and specifications for the Minimum Improvements and have inspected the Development Property. NOW, THEREFORE, the parties to this Agreement, in consideration of the promises, covenants and agreements made by each to the other, agree as follows: 1. The minimum market value which shall be assessed for ad valorem tax purposes for the Development Property, together with the Minimum Improvements constructed thereon, shall be (i) $4,960,000 as of January 2, 2020, for taxes payable in 2021, and (ii) $9,920,000 as of January 2, 2021, for taxes payable in 2022, notwithstanding the progress of construction of the Minimum Improvements by such date, and said minimum value shall remain in effect as of each January 2 thereafter until termination of this Agreement under paragraph 2 hereof. 2. The minimum market value established herein shall be of no further force and effect and this Agreement shall terminate on the earlier of the following: (i) the date of receipt by the City of the final payment from the County of Tax Increment from the TIF District; or (ii) the date when the TIF Note and any interfund loan or loans attributable to the TIF District have been fully paid or defeased in accordance with their terms. The events referred to in this paragraph shall be evidenced by a certificate or affidavit in recordable form executed by the City. 3. This Agreement shall be promptly recorded in the County land records by the Developer by no later than December 31, 2018. The Developer shall pay all costs of recording. page 93 11193287v1 C-3 4. Neither the preambles nor provisions of this Agreement are intended to, nor shall they be construed as, modifying the terms of the Development Agreement between the City and the Developer. 5. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties. 6. Each of the parties has authority to enter into this Agreement and to take all actions required, and has taken all actions necessary to authorize the execution and delivery of this Agreement. 7. If any provision of this Agreement shall be held invalid and unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. 8. The parties hereto agree that they will, from time to time, execute, acknowledge and deliver, or cause to be delivered, such supplements, amendments and modifications hereto, and such required further instruments as may be reasonably required for correcting any inadequate, or incorrect, or amended description of the Development Property or the Minimum Improvements or for carrying out the expressed intention of this Agreement, including, without limitation, any further instruments required to delete from the description of the Development Property such part or parts as may be included with a separate assessment agreement. 9. Except as provided in paragraph 8 of this Agreement, this Agreement may not be amended nor any of its terms modified except by a writing authorized and executed by all parties hereto, in compliance with Section 469.177, Subdivision 8 of the TIF Act. 10. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 11. This Agreement shall be governed by and construed in accordance with the laws of the State. 12. Capitalized but undefined terms in this Agreement shall have the meanings assigned in the Development Agreement. (The remainder of this page is intentionally left blank.) page 94 11193287v1 C-4 CITY OF MENDOTA HEIGHTS, MINNESOTA By: ____________________________________ Its: Mayor By: ____________________________________ Its: City Clerk STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this ____ day of ____________, 20__, by Neil Garlock and Lorri Smith, the Mayor and City Clerk, respectively, of the City of Mendota Heights, Minnesota, a municipal corporation and political subdivision under the laws of the State of Minnesota, on behalf of the City. _________________________________ Notary Public (Signature page of the City of Mendota Heights, Minnesota to the Minimum Assessment Agreement) page 95 11193287v1 C-5 THE HEIGHTS OF MENDOTA NORTH, LLC By: ____________________________________ Its: ____________________________________ STATE OF MINNESOTA ) ) ss. COUNTY OF ___________ ) The foregoing instrument was acknowledged before me this ____ day of ____________, 20__, by Michael Swanson, the Chief Manager of The Heights of Mendota North, LLC, a Minnesota limited liability company, on behalf of the company. ____________________________________ Notary Public (Signature page of The Heights of Mendota North, LLC to the Minimum Assessment Agreement) page 96 11193287v1 C-6 EXHIBIT A TO MINIMUM ASSESSMENT AGREEMENT LEGAL DESCRIPTION OF THE PROPERTY page 97 11193287v1 C-7 CERTIFICATION BY COUNTY ASSESSOR The undersigned, having reviewed certain construction plans for the Minimum Improvements, and the market value assigned to the Minimum Improvements and the Development Property, as described in the Minimum Assessment Agreement, dated as of __________________, by and between the City of Mendota Heights, Minnesota, and The Heights of Mendota North, LLC, to which this certification is attached, states as follows: Legal Description of Property: The undersigned assessor, being legally responsible for the assessment of the above described property, certifies that the market values assigned to the land and improvements are reasonable. Nothing herein shall limit the discretion of the undersigned assessor or any other public official or body having the duty to determine the market value of the above-described Minimum Improvements and Development Property for ad valorem tax purposes, to assign to such Minimum Improvements and Development Property a market value in excess of the minimum market value specified above and in the Minimum Assessment Agreement. All capitalized but undefined terms herein are assigned definitions as provided in that certain Contract for Private Development, dated as of November 20, 2018, by and between the City of Mendota Heights, Minnesota, and The Heights of Mendota North, LLC. _________________________________ Assessor Dakota County, Minnesota STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this ____ day of ____________, 20__, by _______________, the Assessor for the County of Dakota, Minnesota. ____________________________________ Notary Public page 98 Request for City Council Action DATE: November 20, 2018 TO: Mayor and City Council, City Administrator FROM: Meredith Lawrence, Recreation Program Coordinator Cheryl Jacobson, Assistant City Administrator SUBJECT: Approval of the Revised Field and Facility Use Policy and Special Event Policy COMMENT: INTRODUCTION The City Council is asked to approve the revised Field and Facility Use Policy and revised Special Event Policy. BACKGROUND The City coordinates and issues permits for the use of city fields and facilities. City fields and facilities are often used in a multi-purpose manner and are requested by a variety of sports providers and users each year. The Field Use and Allocation policy has been in place since the early 1990’s, and has evolved as the City became more experienced and the sports environment changed. The Field and Facility Use policy was last amended in May of this year. Based on 2018 reservations and use, staff is recommending revisions to the Field and Facility Use Policy. Field and Facility Use Policy Staff is proposing a re-write of the policy which includes a general update and clarifying language to address current issues and questions. The policy was reviewed by the City Council and Parks and Recreation Commission at a joint meeting on November 13, 2018. The highlighted changes include: • Providing for the issuance of permits two times per year. Permit requests for use January through July would be accepted beginning the first business day in January. Permit requests for August through December would be due the first business day in May. • Priority group categories were clarified in response to staff experience with the number of groups and individuals requesting use of City fields. Additionally, selection criteria was clarified for user groups 3-7 in the event of competing requests. page 99 • City field and facility use fees are approved under the City’s Fee Schedule each year. The application and collection of fees over a number of past seasons and across users has been inconsistent and unclear. Language regarding the collection of use fees was added. Use fee rates will be presented for consideration at the first council meeting in December. Staff was unable to get data from user groups in time for consideration along with the proposed policy changes. • The policy addresses the non-use of city permitted fields by a user. When permits are issued, a specific field is reserved for the user, to the exclusion of others. Recognizing this exclusivity, clarifying language regarding the reissuance of permits in non-use situations was added. • Insurance coverage requirements were added. • Athletic special event requirements were added to the policy including the user’s responsibility for facility capacity including parking, traffic and conduct of participants and spectators. Special Event Policy From time to time, the City receives requests for events which rise to a higher usage level than what would be covered under the Field and Facility Use policy. The Special Event Policy was last reviewed in February of this year. In addition to a general update, staff is recommending the following changes: • Language was added regarding multiple day events, limiting the duration of the event to not more than 14 days in length. A user may submit a request for a second 14 day event, which may run consecutively to the original application. A minimum of ninety (90) days must elapse before any additional (third or more) similar event from the same applicant will be considered. • Insurance coverage requirements were added. Attachments: Field and Facility Use Policy, Special Events Policy BUDGET IMPACT The proposed policy changes do not have a direct budget impact. However, included in the 2019 preliminary budget is $71,832 for the addition of one Public Works Maintenance Worker beginning in April, 2019. The implementation of use fees, across all user types would be used to offset the costs of the additional position as well as administrative costs. Use fees will be considered at the first meeting in December. RECOMMENDATION Staff recommends that the City Council approve the revised Field and Facility Use Policy and revised Special Event Policy. ACTION REQUIRED If Council concurs, it should, by motion, approve the revised Field and Facility Use Policy and revised Special Event Policy. page 100 City of Mendota Heights Field and Facility Use Policy A. Purpose The City of Mendota Heights, hereinafter referred to as the “City”, coordinates and issues permits for the use of athletic fields and facilities owned by the City. The purpose of this policy is to establish guidelines for the allocation and management of City athletic fields and facilities. For purposes of this policy, fields shall be defined as an athletic area where people participate in sports and shall include facilities and fields, ice rinks, and tennis and basketball courts. The objectives to this policy include: allocating the use of the current athletic fields to support Parks and Recreation programs throughout the City, or for Mendota Heights’ residents, preserving the facilities offered by minimizing wear and tear, and preventing overuse while conserving maintenance costs. B. Field Use Permits The City will coordinate and allocate the use of city athletic fields and facilities for city and non- city organizations, groups, and individuals to play, practice, hold tournaments, and other sport and non-sport related events. Field and facility use permits are issued following the City’s permit process. Permit applicants must be 18 years of age or older. A permit is issued only after an allocation request is made, all required documents and information is received, and the City has approved the request, either in-part or in its entirety. A request does not constitute an approval. All reservations require the issuance of a permit. The use of a field or facility begins and ends at the times stated on the permit including set-up and clean-up. Any special requests or arrangements must be made as part of the permit application process. This includes special lining requests for fields. Each permit must also include an approximation of users at the facility for parking and amenity considerations. The City reserves the right to deny, limit or revoke use permits based upon an applicant’s performance history including compliance with established rules and policies, field conditions after use, and unruly behavior of participants and guests. Permits will be issued twice throughout the year: • Permit requests for usage during the first portion of the season (January through July) will be due on the first business day in January. • Permit requests for usage during the second portion of the season (August through December) will be due on the first business day in May. page 101 Reservations received after the deadline will be handled on a first-come, first-serve basis. Forms are available at City Hall or on the City’s website. C. Priority Group Classifications Due to the limited number of fields and facilities and the volume of requests, the City has established criteria for priority use. An organization’s priority group classification will be considered during the assignment of the priority for field and facility allocation. Priority use of fields will be given to traditional primary season sports and by priority group classification. Priority use of field will be allocated as follows: Priority #1: City of Mendota Heights Sponsored or Co-Sponsored Programming, Events and Activities This includes activities that are organized through or in connection with the City of Mendota Heights Parks and Recreation Department, directly sponsored by the City, or as a cooperative program with other jurisdictions. Reservations for City sponsored activities, programs, games, practices, leagues and tournaments may be taken at any time for any date. There are no use fees charged for City reservations. Priority #2: Public and Private Schools Located in Mendota Heights This includes schools that are located within the City of Mendota Heights. An agreement must be in place that defines the City of Mendota Heights’ reciprocal use of the school’s athletic facilities. If there is no agreement in place, the priority shall be moved to priority #4 and use fees will be assessed. Priority #3: Recognized Youth Athletic Associations This includes Youth Athletic Associations that are recognized by the City of Mendota Heights. Recognized youth athletic associations are defined by the following characteristics: • The association has nonprofit status under Section 501c3 or other applicable provision as defined by Internal Revenue Services (IRS) and is in good standing with the Minnesota Secretary of State. • The association conducts sports programs that are primarily social and/or recreational in nature. The association administers and abides by an “everyone plays” philosophy and has a no cut policy. • The association serves the athletic needs of youth in Mendota Heights, is primarily Mendota Heights based and has provided significant benefit and service to and for the City. Upon request, the association is able to provide team rosters to substantiate that the association (by sport) serves a majority Mendota Heights residents. page 102 • Registration must be open to the public. The association must not discriminate on the basis of race, ethnicity, economic status, gender, sexual orientation, religion, disability, or ability. Team assignments may be determined by ability, however, the organization must have a policy for determining teams based on ability. • The association conducts youth sports programming through volunteer coaches and board of directors selected by the membership. In addition to the characteristics of an association defined herein, recognized Youth Athletic Associations must submit the following to the City, annually: • Documentation from the Internal Revenue Service showing tax exempt status under Section 501c3 or other applicable provision. • Association bylaws, policies and procedures which govern operations. • A list of the Board of Directors for the association. • The association’s annual budget and annual financial statements summarizing the previous year’s financial activity. • Proof of coach’s certification training, including areas covered such as injury prevention, game rules, child abuse prevention, concussion training, and emergency procedures. The City will make every effort to accommodate all permit requests. In the event of competing requests from recognized associations in this category, the City will determine allocation of fields and facilities based on the following factors: • The percentage of verifiable Mendota Heights residents served in the permit request. The request which has the majority of Mendota Heights residents confirmed will receive a higher priority. Residency percentages will be established using rosters from the most current season. Rosters must be submitted no later than one week before the first reservation date. Rosters must be submitted in .xls or .csv format. Information provided must include: sport type, team name, season of sport/year, name, address including city and zip code. • Previous experience with the City of Mendota Heights. • Date and time of permit request. page 103 Priority #4: Recognized Community Youth Sports Clubs and Leagues This includes sports organizations which provide athletic leagues or clubs for Mendota Heights’ youth and are separate from the Youth Athletic Associations. The City recognizes that recreational play may be available through clubs and leagues and encourages organizations with recreational offerings to partner with City recognized Youth Athletic Associations for maximum field and facility accommodation. Youth sports clubs and leagues are defined by the following characteristics: • The organization may be for-profit or have nonprofit status under Section 501c3 or other applicable provision as defined by Internal Revenue Services (IRS) and is in good standing with the Minnesota Secretary of State. • The organization conducts sports programs that are primarily competitive in nature. The curriculum and programming is focused on the maximum development and exposure of players to the next level of play. • The association conducts youth sports programming through paid coaches, board members and/or administrative staff. • The association does not discriminate on the basis of race, ethnicity, background, sexual orientation, religion, disability, or ability. Team assignments may be determined by ability. There must be a policy for determining teams based on ability. In addition to the characteristics of a Youth Sport Club or League defined herein, recognized Youth Sport Clubs and Leagues must submit the following to the City, annually: • The organization’s bylaws, policies and procedures which govern operations. • A list of the Board of Directors for the organization. • The organization’s annual budget and annual financial statements summarizing the previous year’s financial activity. • Proof of coach’s certification training, including areas covered such as injury prevention, game rules, child abuse prevention, concussion training, and emergency procedures. In an event of competing requests from recognized organizations in the category, the City will determine allocation based on the following factors: • The percentage of verifiable Mendota Heights residents served in the permit request. The request which has the majority of Mendota Heights residents confirmed will receive a higher priority. page 104 Residency percentages will be established using rosters from the most current season. Rosters must be submitted no later than one week before the first reservation date. Rosters must be submitted in .xls or .csv format. Information provided must include: sport type, team name, season of sport/year, name, address including city and zip code. • Previous experience with the City of Mendota Heights. • Date and time of permit request. Priority #5: Mendota Heights Residents Use of the Facility for Personal Use This includes residents of Mendota Heights using fields and facilities for personal use. In an event of competing requests in the category, the City will determine allocation based on the following factors: • Date and time of permit request • Previous experience with the City of Mendota Heights Priority #6: Mendota Heights-Based Businesses/Commercial Organizations This includes business and commercial organizations that have a Mendota Heights office as evidenced by their address to use the facilities. In an event of competing requests in this category, the City will determine allocation based on the following factors: • Data and time of the permit request • Previous experience with the City of Mendota Heights Priority #7: Non-Mendota Heights Organizations, Businesses, and Individuals This includes all non-Mendota Heights residents, organizations, groups, and businesses who want to use the facilities. In an event of competing requests in this category, the City will determine allocation based on the following factors: • Date and time of the permit request • Previous experience with the City of Mendota Heights D. Sport Season Priority A sport in its traditional season will be given priority consideration for field and facility use over an out-of-season sport. The following are considered traditional sport seasons: • Spring/Summer: Baseball, Softball, T-Ball, Lacrosse page 105 • Fall: Soccer, Football • Winter: Hockey Fields and facilities will be used for the intended sport unless otherwise authorized by the City. The City will attempt to accommodate emerging sports, when feasible. E. Fees The City may charge application and use fees in order to recover public costs to operate, maintain, repair, improve and administer the use of City fields. For each application submitted, an application fee shall be assessed. Field use fees shall be approved by the City Council and included in the City’s Fee Schedule. Use fees are subject to change at the discretion of the City Council. All users who receive a permit for exclusive use of a field must pay the appropriate fee per the City fee schedule. Payments for permits must be received in advance of the start of the reservation. If a permit has multiple reservations over several dates, the City will bill and payments may be made on a monthly basis. Payments can be made by cash, check or credit/debit card. F. Non-Use of Fields, Field Exchange, or Sublease When permits are issued, a specific field is reserved for the user, to the exclusion of others. Recognizing this exclusivity, groups should only reserve the fields intended for use. Users may not assign their scheduled time to other groups or sublease fields under any circumstance. Any such action will result in the loss of rental/allocation privileges. A user may not “give up or exchange” their allocation or any part of it, without a written agreement between the impacted parties and City approval. Subleasing of fields without City approval will result in revocation of all permits for all parties. Any organization that has been allocated space and subsequently determines that it cannot use it according to the permit issued shall notify the City so that the field may be reallocated or otherwise used by another group or the general public. A pattern of continued non-use of a rented, permitted field may result in the revocation of the user permit. G. Field Closure, Permit Cancellation and Refunds The City attempts to be flexible in accommodating user groups, but ultimately, the health and safety of the user and the condition and playability of a field takes priority. This may require the closure of fields or facilities, denial of use of a field or facility, and/or the assignment of alternate sites for use. Field closures will be communicated to permit holders by the Recreation Program Coordinator. page 106 The City may cancel use of City fields/facilities for reasons including, but not limited to, any of the following reasons: • City maintenance work involving the facility or field • When the health or safety of participants is threatened • Inclement weather • Wear and tear of the field including field retirement for regrowth and rehabilitation • Unforeseen events including fire, drought, natural disaster or vandalism • Non-adherence to field and facility use policy, City ordinances, or use rules and regulations Permits cancelled by the City of Mendota Heights may be rescheduled as availability allows, or may be refunded in full. Permits cancelled due to non-adherence with field and facility use policy, City Ordinances, or use rules and regulations will not be refunded. Permits cancelled by the user: • More than 30 days in advance will receive a 100% refund (excluding application fee) • 15-30 days in advance will receive a 50% refund • Less than 14 days in advance will not receive a refund H. Maintenance The City performs maintenance on a routine basis to ensure fields and facilities are in good repair. The City will determine the appropriate number of hours each field can be used per season. Permit users will not be able to use the fields more than the hours allowed. This will be based on the field’s current condition and estimated intended City use throughout the year. Infield dragging. Infield dragging is done during the week (Monday – Friday) according to the schedule as defined by the City. Fields are not dragged or striped on the weekend (Saturday and Sunday) or on holidays; unless the user has paid a tournament preparation fee. Lining and striping of fields. Lining and striping of fields shall be done during the week (Monday –Friday) according to the schedule as defined by the City. Fields are not lined or stripped on the weekend (Saturday and Sunday) or on holidays. Fields will not be lined for more than one sport per field per season unless the City can accommodate it. Rink Flooding. Flooding of outdoor rinks will occur on an as needed basis, based on weather and rink conditions. Clean up and disposing of waste. Users are expected to dispose of waste in proper trash and recycling receptacles. The City of Mendota Heights prides itself on being a clean and green community, and renters are asked to recycle as much of their waste as possible. I. Insurance page 107 The permit holder agrees to indemnify and hold harmless the City from any and all claims resulting from the issuance of a field and facility use permit. Field and facility users must provide insurance coverage throughout the period of use naming the City of Mendota Heights as “additionally insured”. Permit holders will be required to provide proof of general liability insurance coverage at a minimum amount of $2,000,000 for property damage and bodily injury. Proof of insurance via a Certificate of Insurance must be provided at least 14 days prior to the first date of play or special event. J. Concession Sales No organization or person shall sell or offer any product, food or service for sale without the prior written approval of the City. The sale of beer or other alcoholic beverages, and the use of food trucks are prohibited. Groups wanting to use concession stands or offer food or beverages for sale will need to obtain the appropriate permits and/or licenses from the County or State and have said permits or licenses during the entire time of the event. A copy of the approved permit must be submitted to the City in order to obtain keys to the concessions stand. K. Athletic Special Events Athletic special events are activities on City property that include, but are not limited to, tournaments, clinics, camps, or any other activity other than regular season practices and games. Permits. Special events require a separate permit and should be requested outside of regular season play permits. Permit requests for special events will be accepted from user groups during the permit application timeframe identified in Section B of this policy. Tournament Contact and Information. Users must have an appointed tournament director/event manager on site, who can be contacted by City staff. Users will supply the Parks and Recreation Department with a schedule of games. Games shall not start before 8:00 am on any day of a tournament and may not be scheduled to start later than 6:30pm. Users must include in the application if spectators will be charged admission. Advertisement banners or signs may not be placed at any facility without permission from the Recreation Program Coordinator. Field Preparation, Maintenance and Clean-Up. Fields will not be prepped throughout the tournament day. Maintenance staff will prep the fields before the first scheduled game(s) of the day, if the user elects to pay the preparation fees. Users may not modify or alter City fields page 108 in any way. The City will not provide equipment for groups to prep fields on their own throughout the tournament. All users of City park field and facilities are expected to leave the area(s) in the same or better condition than which it was found. Users will be responsible for picking up all trash at the end of each day’s events. Users who fail to clean up may be charged by the City for excessive clean up. It is the responsibility of the permit holder to make sure areas are cleaned up. Facility Capacity. Users must provide the number of teams and estimated number of playing participants. Due to space limitations regarding parking and spectator capacity, the City has the right to decrease the number of games in order to comply with the facility’s size. Users are responsible for maintaining control over the conduct of participants and spectators while using fields and facilities. Tournament hosts will be responsible for traffic and parking control and adhere to all City parking regulations. Parking is allowed only in designated areas. No vehicles are allowed on City fields. Users are responsible for the coordination and rental of any additional portable restrooms and/or hand washing stations that are needed in order to accommodate special events. L. City Contact All communication with the Recreation Program Coordinator must be made through the spokesperson of the group. Athletic associations, clubs and leagues must choose one person who will be the City’s main contact. This eliminates confusion and establishes direct, efficient communication. Users should report any facility damage, accidents, dangerous or unsafe conditions to: City of Mendota Heights Recreation Program Coordinator Phone: 651-255-1354 or 651-452-1850 (Monday – Friday from 8:00 am to 4:30 pm) After Hours Phone: 651-302-3301 Email: parks@mendota-heights.com page 109 City of Mendota Heights Special Event Policy A. Purpose The City of Mendota Heights Parks and Recreation Department, hereinafter referred to as the “City”, coordinates and issues special event permits. Special events are activities on City property that include, but are not limited to tournaments, company celebrations, fundraising events, productions, exhibitions, community observances, festivals, entertainment, races, and other events to be held on City owned property. B. Special Event Permits Special event permits are issued following the City’s special event permit process. A permit is issued only after a request is made, all required documents and information is received, and the City has approved the request, either in-part or in its entirety. A request does not constitute an approval. Permit applicants must be 18 years of age or older. Requests may be submitted throughout the year and will be considered on a first come, first serve basis. Application forms will be made available at City Hall or on the City’s website. Permit requests shall be submitted no less than 60 days in advance of the desired date of the event. The City will review event applications and will notify the applicant no fewer than 45 days following the receipt of the request, as to whether the event can be accommodated and is approved. Events which are of multiple days in duration shall be limited to not more than 14 days in length. Applicants may submit an application for a second 14 day event, which may run consecutively to the original application. The application fee may be waived in such an event. A minimum of ninety (90) days must elapse before any additional (third or more) similar event from the same applicant will be considered. Groups that have a permit are allowed to use the designated permitted space, but public park areas will remain open for use by the public. A permit does not provide for exclusive use of restrooms and parking lots. Based on the estimated number of participants, the City may require the applicant to secure additional services and amenities such as to provide portable toilets, trash receptacles, and other support services. C. Fees The City may charge special event permit fees including an application fee. Other fees may apply, based on event attendance, location, and need for city services. Special event permit fees shall be approved by the City Council and included in the City’s Fee Schedule. Special event permit fees are subject to change at the discretion of the City Council. page 110 All users who receive a special event permit for must pay the appropriate fee per the city fee schedule. Payments for permits must be received in advance of the start of the event. If a permit has multiple reservations over several dates, the city will bill and payments shall be made on a monthly basis. Payments can be made by cash, check or credit/debit card. D. Insurance The permit holder agrees to indemnify and hold harmless the City from any and all claims resulting from issuance of the special event permit. Special event permit holders must provide insurance coverage throughout the period of use naming the City of Mendota Heights as “additionally insured”. Permit holders will be required to provide proof of general liability insurance coverage at a minimum amount of $2,000,000 for property damage and bodily injury. Proof of insurance via a Certificate of Insurance must be provided 14 days prior to the first date of play or special event. E. Concessions Sales No organization or person shall sell or offer any product, food or service for sale without the prior written approval of the City. The sale of beer or other alcoholic beverages, and the use of food trucks are prohibited. Users wanting to use concession stands or offer food or beverages for sale will need to obtain the appropriate permits and/or licenses from the County or State and have said permits or licenses during the entire time of the event. A copy of the approved permit must be submitted to the City. F. Public Safety or Staff Assistance City staff will review all applications to determine whether Public Safety, Public Works, or other City staffing assistance may be needed, regardless of whether said assistance has been requested. Fees for any City staff provided will be billed at hourly rates as determined by the City. The availability of city personnel cannot be guaranteed. If private security or cleanup is required, the applicant will be responsible for the costs thereof. G. Rules and Regulations for Special Events • The permit holder is required to be on-site during the entire event including set-up and clean-up of the event. A copy of the issued permit must be retained during the entire time of the rental and shown upon request. • Temporary objects, signs, banners and other materials must be removed from City property at the conclusion of the event. Users are not allowed to attach objects to trees, shrubs or park features. page 111 • The use of tents or any other temporary structures must be approved in advance by the City of Mendota Heights. • Marking of any trails, streets, parking lots, paths, sidewalks, race routes, parking lots or buildings by anything other than removable signage is prohibited. H. Cancellation Policy Reservations which are cancelled more than thirty (30) days in advance will receive a 100% refund. Reservations that are cancelled 15-30 days in advance will receive a 50% refund. Reservations cancelled less than 14 days in advance will not be entitled to a refund. The application fee of $25 is non-refundable regardless of the date cancelled. If the event is cancelled due to inclement weather, the permit holder should contact the City to reschedule the event. There shall be no refunds for weather-related cancellations. However, the permit holder may request to reschedule the event during the same calendar year at no additional charge. I. City Contact All communication with the City’s Recreation Program Coordinator must be made through the spokesperson of the group. Permit holders must choose one person who will be the City’s main contact. This eliminates confusion and establishes direct, efficient communication. Users should report any damage to City property, accidents, dangerous or unsafe conditions to: City of Mendota Heights Recreation Program Coordinator Phone: 651-255-1354 or 651-452-1850 (Monday – Friday from 8:00 am to 4:30 pm) After Hours Phone: 651-302-3301 Email: meredithl@mendota-heights.com Revised: XX/XX/2018 page 112