2020-09-01 Council agenda packetCITY OF MENDOTA HEIGHTS
CITY COUNCIL AGENDA
September 1, 2020 – 6:00 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 August 13, 2020 Council Work Session Minutes
b. Approval of August 18, 2020 Council Work Session Minutes
c. Approval of August 18, 2020 City Council Minutes
d. Acknowledge the July 28, 2020 Planning Commission Meeting Minutes
e. Acknowledge the March 10, 2020 Parks / Rec Commission Meeting Minutes
f. Approve City Hall Business Hours
g. Approve Resolution 2020-55 Approving Appraisal of Permanent Easements from MnDOT
– Valley Park Drainage Improvements
h. Approve Resolution 2020-56 Approving a Joint Powers Agreement with Dakota County for
2085 Valencour Circle
i. Approve Resolution 2020-52 Approving the CARES Act Grant Agreement with Dakota
County for COVID Related Election Expenses
j. Authorize Execution of the Space Needs Study Agreement with CNH Architects
k. Approve Proposal from Swanson-Haskamp Consulting LLC to Provide Consulting Planning
Services for the Comprehensive Plan Update
l. Approval of July 2020 Treasurer’s Report
m. Approval of Claims List
6. Citizen Comment Period (for items not on the agenda)
*See guidelines below
7. Presentations
a. Comcast Franchise Renewal Agreement (Brian Grogan, Attorney for NDC4)
8. Public Hearings
none
9. New and Unfinished Business
a. Resolution 2020-53 Approving a Preliminary and Final Plat of “MENDOTA HEIGHTS
SENIOR LIVING” – The Linden of Mendota Heights, 725 Linden Street & 735 Maple
Street (Planning Case No. 2020-16)
b. Resolution 2020-54 Approving a Wetlands Permit for 781 Pondhaven Lane
– John & Lisa Steveken (Planning Case No. 2020-18)
c. Discussion Regarding the Operation of the Rogers Lake Skatepark
10. Community Announcements
11. Council Comments
12. Adjourn
Guidelines for Citizen Comment Period: “The Citizen Comments section of the agenda
provides an opportunity for the public to address the Council on items which are not on the
agenda. All are welcome to speak.
Comments should be directed to the Mayor. Comments will be limited to 5 minutes per person
and topic; presentations which are longer than five minutes will need to be scheduled with the
City Clerk to appear on a future City Council agenda. Comments should not be repetitious.
Citizen comments may not be used to air personal attacks, to air personality grievances, to
make political endorsements, or for political campaign purposes. Council members will not
enter into a dialogue with citizens, nor will any decisions be made at that presentation.
Questions from the Council will be for clarification only. Citizen comments will not be used as
a time for problem solving or reacting to the comments made, but rather for hearing the
citizen for information only. If appropriate, the Mayor may assign staff for follow up to the
issues raised.”
CITY OF MENDOTA HEIGHTS
DAKOTA COUNTY
STATE OF MINNESOTA
Minutes of the City Council Work Session
Held August 13, 2020
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 1:30 pm. Councilmembers Paper, Petschel, Duggan and
Miller were also present.
City staff present included Mark McNeill, City Administrator; Cheryl Jacobson, Assistant City
Administrator; Ryan Ruzek, Public Works Director; Tim Benetti, Community Development Director;
Meredith Lawrence, Recreation Program Coordinator, Kristen Schabacker, Finance Director, Kelly
McCarthy, Police Chief, Wayne Wegener, Police Captain and John Boland, Public Works Superintendent.
DISCUSSION OF FY2021 PROPOSED BUDGET
Budget Overview- Mark McNeill provided an overview of the FY2021 proposed budget stating that the
preliminary levy increase for FY2021 would be 4.32%. Mr. McNeill noted that a conservative approach
was taken in the preparation of the FY2021 budget given the COVID-19 pandemic and an uncertain
economic recovery.
Police-Police Chief Kelly McCarthy stated the department worked hard to keep to the proposed budget as
flat as possible with little change for FY2021. Chief McCarthy highlighted the need for a pole camera,
which was included in the FY2020 budget but delayed given the pandemic. This is estimated to cost
$10,000, half of which might come from a donation from the Mendota Heights Criminal Apprehension
Fund.
Captain Wayne Wegener discussed the need to add one marked squad to the Police Department fleet. This
proposed addition would be through a lease costing approximately $9,000 annually along with a onetime
cost of $18,000 to equip the vehicle with necessary emergency equipment.
Chief McCarthy and Mr. McNeill discussed the need to begin the city hall and police department space
needs assessment. This study has been on hold due to the pandemic. With the recent civil unrest and
pandemic, staff recommended moving forward with the study. The study was a 2020 budgeted item, but
CARES Act funding could be used to cover its costs. The City Council was in agreement on moving
forward with the study.
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Public Works-Mark McNeill reviewed the proposed public works budgets including streets, parks, and
sewer utility funds.
John Boland discussed the need to replace the department’s 2008 bobcat with a tracked skid steer. The
new machine is estimated to cost $55,000 after a $15,000 trade-in. The current machine has reached its
end of life.
A request for a new plow truck was made to replace a 2007 plow truck. The new truck is proposed to
have equipment allowing for brine to be spread. The total estimated cost is $191,000 after a $40,000
trade-in.
A request for a new John Deere disc mower to mow unmaintained right-of-way areas was submitted. Mr.
Boland explained that staff is currently using a brush mower which presents safety concerns for road-side
use. The estimated cost is $9,000.
A request for a tire changer/balancer was submitted with an estimated cost of $13,200. Mr. Boland noted
that the current changer/balancer was bought used in the 1990’s, and that repair parts are hard to get and
one ton and lawn mower tires cannot be done on the existing machine.
A request for column jacks for use outside of the maintenance shop was discussed. Mr. Boland explained
that the city’s fire trucks and plow trucks do not fit on the current hoist. Adding the column jacks would
add the ability to do additional maintenance in-house. The estimated cost of the column jacks is $55,500,
the cost of which would be split between streets, parks, utility and fire funds.
A request to paint the Public Works shop was submitted. Mr. Boland noted that the shop is dark and in
need of painting. He explained that with painting light would be better reflected and is a general building
maintenance item. The estimated cost is $30,000, the cost of which would be split between streets, parks
and utility funds.
Mr. Boland discussed the need for a salt storage bin. The current storage location inside of the building
garage is causing corrosion of metal surfaces and deteriorating the concrete. An exterior storage bin is
proposed. The estimated cost is $201,000.
Ryan Ruzek explained the budget improvement proposal for completing phase 2 of the City’s natural
resource plan. The estimated cost is $55,000.
A request for funding to install and maintain native plantings in support of the City’s pollinator friendly
designation was discussed. The cost of the request is $10,000. Staff clarified that the native plantings are
not necessarily for rain gardens.
Recreation-The budget has been adjusted to reflect more accurately program offerings and changes but
overall relatively little change is proposed. A reduction to the summer playground program was noted as
well as increase to contracted programs.
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Councilor Duggan asked about the addition of translation services to the budget. Meredith Lawrence
explained that the cost is for translating program marketing flyers for use with the school district. The
district requires materials be translated in Spanish.
Mr. McNeill noted challenges faced with the continued operation of the skatepark at Rogers Lake. Ms.
Jacobson and Ms. Lawrence discussed the continued park vandalism and the changes seen in park users.
Staff recommended that a discussion regarding the future of the skatepark be had by the City Council.
Engineering-No notable changes were included in the engineering or recycling budget. Ryan Ruzek
indicated that changes to funding of the city’s Recycling Coordinator may be coming in future.
Community Development– Mark McNeill and Tim Benetti reviewed the Community Development budget
noting little change from 2020. Mr. Benetti talked about completion of the Comprehensive Plan. The
city had received an “incomplete” letter from the Metropolitan Council. Initial discussion on consultant
services to assist with the Plan’s completion took place.
ADJOURNMENT
There being no further business, Mayor Garlock adjourned the meeting at 3:30 p.m.
Neil Garlock
Mayor
ATTEST:
Lorri Smith, City Clerk
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CITY OF MENDOTA HEIGHTS
DAKOTA COUNTY
STATE OF MINNESOTA
Minutes of the City Council Work Session
Held August 18, 2020
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 3:45 pm. Councilmembers Paper and Petschel were also
present. Councilor Duggan arrived at 3:55 pm. Councilor Miller was absent.
City staff present included Mark McNeill, City Administrator; Cheryl Jacobson, Assistant City
Administrator; Ryan Ruzek, Public Works Director; Tim Benetti, Community Development Director;
Dave Dreelan, Fire Chief; Dan Johnson representing the Fire Relief Association; Lorri Smith, City Clerk;
and by telephone conferencing Kristen Schabacker, Finance Director.
CONTINUATION OF
DISCUSSION OF FY2020 PROPOSED BUDGET
FROM AUGUST 13, 2020
Fire Department and Fire Relief Association– Fire Chief Dave Dreelan explained that the department
worked hard to keep the budget similar to 2020. Significant increases were made to #4268 Snowplowing
of Firefighters Driveways, increased by 71.43% due to contractual changes. Councilor Petschel asked
about the budget for repairing the fire trucks. Chief Dreelan stated those costs are located under #4330
Equipment Repairs.
Chief Dreelan explained the request for the purchase of Self Contained Breathing Apparatus (SCBA) in
the amount of $225,000. The current SCBA cylinders will expire in February 2021.
Dan Johnson explained that the Fire Relief Association is requesting no change to the City’s contribution
towards the Relief Association.
Community Development– Tim Benetti, Community Development Director, explained the request for
$20,000 to conduct additional updates to the proposed 2040 Comprehensive Plan. The Council members
were in agreement to recommend going ahead with hiring a contractor to complete the needed updating
to the plan, not to exceed $20,000.
It was noted that the building inspector’s contract is proposed to increase by 2.5%.
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Mayor/Council Salaries – It was noted that there are no changes proposed for the Mayor’s or Council
members’ salaries.
The budget includes $1,200 for the Halloween Bonfire and $14,000 for the Fireworks Display.
Administration – Mr. McNeill noted no significant changes to the Administration budget. The IT budget
is decreased by 5%, which is due to significant upgrades which were made to the equipment in 2020.
Councilor Paper expressed concern about the city’s website and the need to upgrade it for ease of use.
Summary – Mr. McNeill explained that the budget as presented would be a 4.32% increase to the levy.
The Council expressed a desire for further tax relief if possible, and interest was also expressed in
receiving more information regarding the painting of the Public Works building’s garage interior as
outlined in a Budget Improvement Package.
It was noted that the budget can be reduced when approved in December, but not increased. The
preliminary budget will be included on the September 15th Council agenda for approval.
ADJOURNMENT
There being no further business, Mayor Garlock adjourned the meeting at 4:47 p.m.
Neil Garlock
Mayor
ATTEST:
Lorri Smith, City Clerk
page 8
CITY OF MENDOTA HEIGHTS
DAKOTA COUNTY
STATE OF MINNESOTA
Minutes of the Regular Meeting
Held Tuesday, August 18, 2020
Pursuant to due call and notice thereof, the regular meeting of the City Council, City of Mendota Heights,
Minnesota was held at 5:00 p.m. at City Hall, 1101 Victoria Curve, Mendota Heights, Minnesota.
CALL TO ORDER
Mayor Garlock called the meeting to order at 5:00 p.m. Councilors Duggan, Paper, Miller, and Petschel
were also present.
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,
noting that the public hearing for item 7a. will be continued as requested by the developer. No final action
will be taken by the Council tonight on that item.
Councilor Miller seconded the motion.
Ayes: 5
Nays: 0
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, with the exception of item f.
a. Approval of August 4, 2020 City Council Minutes
b. Approve Massage Licenses for Sharon Pollack and Cindy Messer
c. Approve Resolution 2020-49 Acknowledging the Receipt of an Additional Donation to the City
for the Scott Patrick Memorial 5k Race
d. Approve Wetland Conservation Act (WCA) Application for “No-Loss” Determination – Sutton
Pond
e. Approve Wetland Conservation Act (WCA) Application for “No-Loss” Determination –
Lexington Marie Pond
f. Acknowledge June 2020 Par 3 Financial Report
g. Approve the Purchase of AV Equipment for the Police Department
h. Approve the Purchase of City Hall Door Access Control Additions
i. Approving Resolution 2020-50 Accept Donation of Land from Robert and Kathleen Bonine
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j. Approve the Building Activity Report
k. Approval of Claims List
Councilor Miller seconded the motion.
Ayes: 5
Nays: 0
PULLED CONSENT AGENDA ITEMS
F) ACKNOWLEDGE JUNE 2020 PAR 3 FINANCIAL REPORT
Councilor Duggan acknowledged that in these challenging times, the Par 3 golf course is doing very well.
He commended City staff for their efforts this year.
Councilor Duggan moved to ACKNOWLEDGE JUNE 2020 PAR 3 FINANCIAL REPORT.
Mayor Garlock seconded the motion.
Ayes: 5
Nays: 0
PUBLIC COMMENTS
Greg Boland, 1215 Victoria Curve, asked how long item 7A would be delayed.
Community Development Director Tim Benetti replied that the City received a request from the applicant
to delay the application. He stated that the item could come back to the second meeting in September.
He stated that all property owners that received notification for the meeting tonight will receive a second
notification for the next meeting. He stated that there was an extension of the 60-day review period, which
would expire around October 28th.
Councilor Duggan stated that if the applicant fails to come forward during that time, he recommends a
motion to deny at the second meeting in October, to ensure the 60-day extension period does not expire.
PUBLIC HEARING
A) RESOLUTION 2020-46 APPROVING A CRITICAL AREA PERMIT AND CONDITIONAL
USE PERMIT FOR PROPERTY LOCATED AT 1217 VICTORIA CURVE
Councilor Petschel moved to open the public hearing.
Mayor Garlock seconded the motion.
No one from the public wished to come forward to speak on this item.
Councilor Petschel moved to table the public hearing to a future meeting date.
Mayor Garlock seconded the motion.
Ayes: 5
Nays: 0
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NEW AND UNFINISHED BUSINESS
A) ORDINANCE 558 AMENDING CITY CODE TO ADD NO PARKING ON MENDOTA
HEIGHTS ROAD AND WARRIOR DRIVE NAD ADDING AN ALL-WAY STOP AT CULLIGAN
LANE AND GLENHILL ROAD
Public Works Director Ryan Ruzek explained that the Council was being asked to approve Ordinance 558
amending City Code; Title 6, Chapter 3, Section 1 and 3.
Councilor Paper asked for more information on the areas shown in purple. Public Works Director Ryan
Ruzek explained the current parking regulations for those areas and confirmed the changes that would
take place when school is not in session.
Councilor Paper asked for clarification on the changes that would occur on Mendota Heights Road. Mr.
Ruzek confirmed that all parking controls would be eliminated on the north side (with the exception of
typical parking regulations) while the controls would remain on the south side.
Councilor Petschel commented that the Traffic Safety Committee recognizes that this is a challenging area
and wanted to find a way to make this area safer before school starts. She stated that the Committee will
continue to pursue options for this segment of the road in the future.
Councilor Paper asked why a four-way stop was chosen over a yield at Culligan Lane and Glenhill Road.
Mr. Ruzek stated that there are equal volumes of traffic on all legs and therefore the thought was to make
the traffic control equal for all.
Councilor Duggan stated that the School District should be advised of the action taken on Mendota Heights
Road so that information can be communicated to the parents of school children. He asked for the number
of accidents at the Culligan-Glenhill intersection. Public Works Director Ruzek commented that he is not
aware of any crashes at that intersection.
Councilor Duggan commented that it would seem that the intersection is working as is, and understands
that some people are concerned. He stated that there was a suggestion to trim tree branches near the
intersection and asked if that could be done. Mr. Ruzek stated that tree trimming would occur on the desire
of the adjacent landowner. He reviewed language from the City Code related to clearcutting.
Councilor Duggan asked for the results of the traffic control petition. Public Works Director Ryan Ruzek
stated that residents that signed the petition were asked to provide their first and second choices and he
provided additional details.
Councilor Petschel stated that the request was brought forward by parents of younger children. There
have been a number of near misses between cars and pedestrians or cyclists, which drove the request for
intersection control.
Councilor Duggan asked that the consideration be towards a yield with a review to be done after a length
of time and the four-way stop could be done at that time if warranted.
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Councilor Petschel stated that she would recommend a four way stop because of the narrow line of sight.
She stated that while it will take time for drivers to adjust, after that period, it will become second nature
and will be an improvement for this area.
Councilor Miller stated that he agrees with the four way stop because of the line of sight issues.
Mayor Garlock asked if orange flags would be placed on the stop sign to indicate the new stop sign. Public
Works Director Ryan Ruzek confirmed that flags would be placed on the top of the stop signs to identify
the change in traffic control for the first year.
Councilor Paper stated that he agrees that the safety of the children is the most important element.
Mayor Garlock invited members of the public to comment.
Shane Wright, 1908 Glenhill Road, stated that he has lived in this area for seven years and there is no line
of sight to the west at this intersection. He stated that there are additional drivers and bicycles in this area.
Drivers who are unfamiliar with this area cannot tell that they are approaching an intersection. He stated
that the additional new homes have increased traffic and people on bicycles in this area. He asked the
Council to support the changes recommended by the Traffic Safety Committee.
John Delaney, 1901 Glenhill Road, stated that he moved in one year ago and they were unsure of what to
do at the intersection. He stated that it is a four-way intersection with no control. He has seen multiple
vehicles go through the intersection without stopping and it is dangerous. He believed that a four-way or
two-way stop would be the best resolution. He did not believe a yield sign would be sufficient enough to
protect drivers and bicyclists.
Eric Johnson, 1902 Glenhill Road, stated that he supports the four-way stop.
Councilor Petschel moved to approve ORDINANCE 558 AMENDING TITLE 6, CHAPTER 3, OF THE
CITY CODE.
Councilor Miller seconded the motion.
Ayes: 5
Nays: 0
B) RESOLUTION 2020-51 PLANS FOR LEMAY LAKE EROSION CONTROL PROJECT
Public Works Director Ryan Ruzek provided a background on this item. The Council was being asked to
authorize staff to bid an erosion control project consisting of armoring two drainage channels that convey
storm water into Lemay Lake.
Councilor Petschel asked which fund the costs would come from. Public Works Director Ryan Ruzek
stated that the City maintains a stormwater utility fund, with a fee paid by users. It is used for these types
of improvements.
Councilor Miller asked what has changed in the past 20 years that has caused this lake to have erosion.
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Public Works Director Ryan Ruzek stated that in 2014, the rainfall intensity and stormwater regulations
were updated and substantially changed the stormwater design criteria. He stated that the past few years
have seen record setting rainfall levels.
Councilor Miller asked if the improvements proposed would fit existing and future needs. Mr. Ruzek
stated that the Mendota Heights Apartments development exceeds the City standards. The Augusta Shores
development was constructed under the standards of the mid-1990s. Improvements could be made to the
stormwater pond within that development to provide additional capacity and water quality improvement.
Councilor Miller asked why that is not included in this project. Public Works Director Ryan Ruzek replied
that the access to both of those project areas are completely separate. The Augusta Shores project would
require roadway disturbance along with curb and gutter. There are a number of items on the stormwater
capital improvement plan and the Augusta Shores project would come at a later time.
Councilor Miller stated that it would seem that the two projects would be tied together. Public Works
Director Ryan Ruzek replied that the erosion issues on Lemay Lake would need to be repaired and would
not be repaired through improvements to the Augusta Shores pond.
Councilor Miller asked if the Augusta Shores properties would be assessed for the pond improvement.
Public Works Director Ryan Ruzek stated that residents pay into the stormwater utility fund and those
funds are used to improve and maintain the City owned infrastructure. He stated that even on road
projects, the stormwater improvements are removed from the assessed cost and funded through the
stormwater utility fund.
Councilor Miller stated that he would like to avoid the situation of Lake Augusta. He stated that his
thinking was that if that situation can be prevented in Lemay Lake by completing the improvement now
and assessing the cost, he would support that.
Public Works Director Ryan Ruzek commented that the quality of Lemay Lake has improved with the
connection of homes to City water and sewer. He commented that the lake water quality is currently rated
as a “B”.
Councilor Petschel stated that while everyone would like to fix Lake Augusta, they are awaiting on results
from the study being completed by the watershed to ensure that the improvements are part of a larger
effort that will be a solution.
Councilor Paper stated that he agrees that the immediate need should be completed now with an eye on
the larger picture as that information comes forward.
Councilor Duggan stated that somewhere along the line the excess water is causing a problem. He stated
that if the issue is caused by increased rainfall and climate change, he can accept that but would want to
know if the increase in impervious surface was a factor and whether there could be a cost-share.
Mayor Garlock moved to adopt RESOLUTION 2020-51 APPROVING PLANS AND AUTHORIZING
THE ADVERTISEMENT OF BIDS FOR THE LEMAY LAKE EROSION CONTROL PROJECT.
Councilor Miller seconded the motion.
Ayes: 5 Nays: 0
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COMMUNITY ANNOUNCEMENTS
City Administrator Mark McNeill introduced the new City Attorney Elliot Knetsch, from the law firm of
Campbell-Knutson.
He advised of an upcoming City concert event at Mendotakota Park, and noted that there will be
precautions in place due to COVID.
COUNCIL COMMENTS
Councilor Petschel commented that she attended the groundbreaking ceremony for the new Grand Real
Estate building that is being developed at The Village. She stated that it is a good feeling to know that
there is a beautiful building agreed upon by the parties involved. She read aloud a statement from Grand
Real Estate which acknowledged the cooperation of City staff in helping to bring this project to fruition.
Mayor Garlock thanked the City staff and Council for the budget workshops that have been held recently,
recognizing the importance of tightening the budget for this year.
Councilor Paper thanked the Bonine family for the land donation to the City located near 3rd Avenue.
Councilor Duggan thanked the residents of Mendota Heights for making it a great community.
ADJOURN
Mayor Garlock moved to adjourn.
Councilor Paper seconded the motion.
Ayes: 5
Nays: 0
Mayor Garlock adjourned the meeting at 5:52 p.m.
____________________________________
Neil Garlock
Mayor
ATTEST:
_______________________________
Lorri Smith
City Clerk
page 14
CITY OF MENDOTA HEIGHTS
DAKOTA COUNTY, MINNESOTA
PLANNING COMMISSION MINUTES
July 28, 2020
The regular meeting of the Mendota Heights Planning Commission was held on Tuesday, July 28,
2020 in the Council Chambers at City Hall, 1101 Victoria Curve at 7:00 P.M.
The following Commissioners were present: Chair Mary Magnuson, Commissioners Patrick
Corbett, Litton Field, Michael Toth, and Andrew Katz. Those absent: Commissioners John
Mazzitello and Brian Petschel.
Approval of Agenda
The agenda was approved as submitted.
Approval of June 23, 2020 Minutes
COMMISSIONER CORBETT MOVED, SECONDED BY COMMISSIONER TOTH TO
APPROVE THE MINUTES OF JUNE 23, 2020
AYES: 5
NAYS: 0
Hearings
A) PLANNING CASE 2020-14
TEMPO HOMES AND VINH TRUONG, 1217 VICTORIA CURVE – CRITICAL
AREA PERMIT AND CONDITIONAL USE PERMIT
Community Development Director Tim Benetti explained that Calvin Tran with Tempo Homes,
as the applicant acting on behalf of Vinh Truong, is seeking a Critical Area Permit to construct a
new single-family dwelling on property situated in the Critical Area Overlay District. City Code
Section 12-305 requires a critical area permit (CAP) for all major development activities requiring
a building permit or special zoning approval in this overlay district. The applicants also seek a
conditional use permit (CUP) to construct an oversized attached garage up to 1,475 square feet in
size.
Hearing notices were published and mailed to all properties within 350-ft. of the site; comments
received were included in the packet.
Community Development Director Tim Benetti provided a planning staff report and a presentation
on this planning item to the Commission (which is available for viewing through the City’s
website).
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Staff recommended approval of this application based on the findings and with conditions.
Commissioner Corbett asked for details on ordinances dictating the position of the home on the
lot. He asked if the string method of determining setbacks was used, or whether it should be used.
He also asked if the adjacent homes are in compliance with the right-of-way setbacks.
Community Development Director Tim Benetti stated that staff and legal counsel came to the
conclusion that the string yard rule applies to the minimum front yard setback rule and provided
background information on that rule.
Commissioner Corbett stated that it would then appear there is no intent in the string method to
align home placement and is strictly a minimum front yard setback.
Community Development Director Tim Benetti confirmed that only establishes a minimum front
yard setback. He explained that a home could be placed further back on the lot, as long as the
other required setbacks are met.
Calvin Tran, Tempo Homes, representing the applicant, provided information on the owner of the
property, who works at the VA and chose this home selection because it was close to his work.
He also provided background information on himself and his past ten years of experience. He
stated that they have taken the issues of erosion and drainage, which he believes are addressed by
their plan. He stated that the design of the home is more modern, as he builds modern custom
homes. He stated that all the concerns of the neighbors have been taken into consideration. He
stated that they revised the drainage plan to address the issues of the neighbor, directing the water
away from adjacent lots and instead to Victoria Curve.
Commissioner Katz asked for details on the choice to place the home so far back on the lot.
Mr. Tran stated that they chose the back placement in order to minimize the impact of tree removal.
He noted that the driveway was also a concern, noting that the closer to Victoria Curve, the harder
it would be to meet the slope requirements because of the topography of the hill.
Commissioner Katz stated that it would appear that they are placing the home further back and at
the highest spot, therefore his concern would be for two of the neighbors who would have a house
sitting in an area that was their backyard or side yard. He stated that he would want to see a plan
in place to create a natural border to minimize that impacts to neighbors. He asked if any of the
grading would have to be changed on the property.
Mr. Tran stated that if they choose another location for the home, they will have to remove more
trees. He stated that he has a background in landscaping, and they have revised their erosion and
grading plan to drain the water out towards the street rather than to the adjacent neighbors.
Chair Magnuson opened the public hearing.
Alan Olstein, 1954 Glenhill Road, stated that he and his neighbors have concerns with the drainage
from this site. He stated that the applicant has stated that his plan has been modified to address
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some of the drainage concerns brought forward in previous conversations. He stated that if you
follow the arrows where water is going to flow, it goes into three of the adjacent neighboring lots.
He stated that they would like to know about the measures being contemplated to resolve this
drainage problem. He stated that a number of the neighbors have questions the choice of home
placement for the lot, considering the added distance between the roof and Victoria Curve, which
is where the water is supposed to go. He explained that additional front setback would only
increase the distance the water needs to travel.
Chair Magnuson asked if Mr. Olstein has had an opportunity to speak with the builder.
Mr. Olstein replied that they have not met with the builder and the first they heard of this request
was the notice from the City the previous week.
Greg Bolin, 1215 Victoria Curve, stated that he sent an email with photographs to staff last Friday.
He noted that his first concern is with the drainage for the site. He stated that the arrows on the
plan show water going right to his home/basement. He noted that he has been told that a swale is
included and wanted to ensure that would be provided to protect his home. He stated that in
reviewing the grading contours, many of the lines come close to mature trees on his property and
into some of his landscaping. He wanted to ensure that grading would be staked in order to prevent
damage to mature trees and landscaping. He stated that his final concern is with the home
placement. He noted that all of the homes were placed in a manner that each looks out into the
backyards of other, whereas the placement of this home would be in the middle of everyone’s line
of sight.
Chair Magnuson asked for details related to the elevation of the subject property compared to the
Bolin property.
Mr. Bolin replied that the subject property is about two feet higher than his property.
Lynn Burow, 1219 Victoria Curve, and property owner to the west, stated that her concern is with
the drainage. She stated that she does not want the water to go into her garage. She stated that she
does not mind the placement of the home as it is less impactful to her home and the trees would
remain.
Commissioner Katz asked if the resident has a problem with drainage currently.
Ms. Burow commented that sometimes the garage is wet after a large amount of snow melts. She
stated that she would not be concerned with the addition of the homes, as long as there is not
disturbance within 20 feet of her garage as she did not believe that would impact her home at that
point. She stated that if most of the drainage goes to the street, she believed there would not be an
additional issue.
Commissioner Katz asked if the resident has spoken with Tempo Homes.
Ms. Burow commented that she has not.
page 17
Commissioner Katz asked if the retaining wall between the resident garage and the property line
is existing.
Ms. Burow stated that she has a hand-built boulder wall that is not technically a retaining wall.
Commissioner Toth asked the type of soil on the subject site.
Public Works Director Ryan Ruzek replied that a soil survey has not been submitted. He
commented that staff would not be concerned about a wetland type soil, it would be a more stable
soil.
Commissioner Toth commented that if the type of soil were known, that would help to determine
the impact. He stated that it would also be helpful to know the elevation of the footings of the
homes to the east and west compared to what is being built. He reviewed some of those elevations
Public Works Director Ryan Ruzek provided details on the elevations of the proposed home.
Mr. Tran commented that the elevation of the proposed home on its east side is very similar to the
elevation of the home to the east.
Seeing no one further coming forward wishing to speak, Chair Magnuson asked for a motion to
close the public hearing.
COMMISSIONER KATZ MOVED, SECONDED BY COMMISSIONER TOTH, TO CLOSE
THE PUBLIC HEARING.
AYES: 5
NAYS: 0
COMMISSIONER CORBETT, MOVED, SECONDED BY COMMISSIONER FIELD, TO
RECOMMEND APPROVAL OF THE CRITICAL AREA PERMIT AND CONDITIONAL USE
PERMIT REQUEST FOR 1217 VICTORIA CURVE, WITH WOULD ALLOW THE
CONSTRUCTION OF A NEW SINGLE-FAMILY DWELLING WITH AN OVERSIZED
ATTACHED GARAGE, WITH THE FOLLOWING CONDITIONS:
1. A BUILDING PERMIT, INCLUDING ALL NEW GRADING AND DRAINAGE
WORK, MUST BE APPROVED BY THE CITY OF MENDOTA HEIGHTS PRIOR TO
THE COMMENCEMENT OF ANY NEW CONSTRUCTION WORK.
2. FULL EROSION AND SEDIMENT MEASURES WILL BE PUT IN PLACE PRIOR TO
AND DURING GRADING AND CONSTRUCTION WORK ACTIVITIES.
3. ALL GRADING AND CONSTRUCTION ACTIVITY WILL BE IN COMPLIANCE
WITH APPLICABLE FEDERAL, STATE AND LOCAL REGULATIONS AND
CODES, AS WELL AS IN COMPLIANCE WITH THE CITY’S LAND DISTURBANCE
GUIDANCE DOCUMENT.
4. A COMPLETE AND DETAILED LANDSCAPING PLAN MUST BE SUBMITTED TO
THE CITY FOR REVIEW AND APPROVAL AS PART OF ANY NEW BUILDING
PERMIT PROCESS. THE APPLICANT AGREES TO REPLANT ONE NEW TREE
page 18
(MINIMUM 2.5” CALIPER SIZE FOR DECIDUOUS AND 6’ FOR EVERGREENS)
FOR EACH SIGNIFICANT TREE REMOVED FROM THE SITE FOR THIS HOME
PROJECT. AS PER THE CITY’S POLLINATOR FRIENDLY POLICY, ALL NEW
TREES AND LANDSCAPING SHALL MEET THE CITY’S NATIVE PLANT LIST.
5. ALL WORK ON SITE WILL ONLY BE PERFORMED BETWEEN THE HOURS OF
7:00 A.M. AND 8:00 P.M. MONDAY THROUGH FRIDAY; 9:00 A.M. TO 5:00 P.M.
WEEKENDS.
6. ALL DISTURBED AREAS IN AND AROUND THE PROJECT SITE SHALL BE
RESTORED AND HAVE ESTABLISHED AND PERMANENT GROUND COVER
IMMEDIATELY AFTER THE PROJECT IS COMPLETED.
Further discussion:
Commissioner Field noted that many of the concerns expressed will be addressed throughout the
City review process.
Chair Magnuson encouraged the builder to make themselves available to the neighbors to hear
their concerns related to drainage.
AYES: 5
NAYS: 0
Chair Magnuson advised the City Council would consider this application at its August 4, 2020
meeting.
B) PLANNING CASE 2020-15
MICHELLE CULLIGAN, NW QUADRANT OF VICTORIA CURVE AND
GLENHILL ROAD – PRELIMINARY PLAT, CRITICAL AREA PERMIT,
CONDITIONAL USE PERMIT AND VARIANCES
Community Development Director Tim Benetti explained that Michelle Culligan, acting on behalf
of her parents and property owners Larry and Mary Culligan, is seeking to subdivide an existing
vacant parcel into nine (9) new lots, to be titled “Valley View Oak 3rd Addition” to Mendota
Heights.
Hearing notices were published and mailed to all properties within 350-ft. of the site; a number of
comments and/or concerns were received and included in the packet.
Community Development Director Tim Benetti provided a planning staff report and a presentation
on this planning item to the Commission (which is available for viewing through the City’s
website).
Staff recommended that the public hearing be held, and the issue then be tabled to allow input
from the Park and Recreation Commission. He noted that this would then come back to the
Planning Commission on August 25th.
page 19
Commissioner Field stated that the rules allow someone to testify once and asked how that would
apply in this situation where they could speak but then additional information could come forward
from the Park and Recreation Commission that they might want to respond to at the next meeting.
Commissioner Corbett believed that people are allowed to speak twice, as long as everyone has
had an opportunity to speak.
Chair Magnuson stated that she would be willing to allow people to respond at the second meeting
to things that may have changed.
Community Development Director Tim Benetti confirmed that staff would recommend allowing
people to comment at both meetings.
Michelle Culligan, applicant, stated that this land has been in their family for almost 100 years and
her parents currently live on the property. She stated that because of that, they take how the
property could be developed very seriously. She recognized that there are a number of challenges
with the topography and the Critical Overlay District and therefore reached out to staff early in
this process along with experts to help guide them. She stated that they have approached this in a
manner of working with the topography to minimize tree removal and maintain the wooded nature
of the property. She stated that they intended to hold a neighborhood meeting but refrained
because of COVID and the age of her parents and therefore felt that the public hearing would be
the best method of obtaining input.
Commissioner Corbett asked if this project would be feasible without the variances.
Ms. Culligan replied that it would be feasible without the variances but that would require
additional tree removal which would expose more of the bluff.
Commissioner Corbett asked if the retaining walls every 20 feet would be feasible.
Ms. Culligan confirmed that would be possible but would be costly, require tree removal and is
something she would rather avoid.
Chair Magnuson stated that the retaining walls would span multiple properties and therefore could
create a problem with maintenance. She asked how that would be handled.
Ms. Culligan stated that there has been discussion of an HOA to maintain that element and others.
She noted that discussion of a conservation easement was also discussed. She stated that the
homeowners themselves would also desire an association in order to preserve the environment and
nature of the neighborhood.
Commissioner Katz stated that he appreciates the spirit to attempting to keep the bluff and
vegetation preserved. He stated that because this is within the Critical Area, there is a possibility
that this area was used as a burial ground. He asked the procedure the property owners would
follow if bones were discovered.
page 20
Ms. Culligan stated that she is not aware of all the steps would be taken but acknowledged that
there is a procedure outlined.
Chair Magnuson confirmed that State law would govern that process.
Commissioner Katz stated that he simply wanted to ensure that the property owner was aware of
the process that would need to be followed if that were to occur and the expense/change in direction
that could be needed.
Tom Goodrum, planning consultant for the applicant, stated that he appreciates all of the comments
that have been received, recognizing that development within the Critical Area does not happen
all the time. He provided background information on his firm and their experience with bluff
development and critical area development. He also reviewed his experience with bluffs and
critical areas. He stated that although the retaining walls reach up to 23 feet, that height is only in
a very small area of the walls. He stated that they worked with the DNR and were conservative
on their slope analysis. He stated that they want to respect the slopes and they need the retaining
walls to help them with that. He noted that none of the retaining walls or house pads are up against
the 40-foot setback line. He stated that they attempted to stay east to the extent possible, which is
why variances are included. He stated that the soils on this site are fast draining. He stated that
any drainage coming off the slope would be brought to the retention pond for treatment and
disbursed at a much slower pace.
Commissioner Toth referenced the locations of the retaining wall and degree of slope, asking if
that would be a walkable slope. He stated that there is currently vegetation holding the soil in
place and asked how they would prevent erosion once the vegetation is removed.
Mr. Goodrum stated that they have a stormwater prevention plan to ensure that when the land is
striped, they establish erosion control measures. He stated that once they open the soil, they will
know which erosion control measures will be implemented. He commented that a 40 percent slope
would be slightly greater than a freeway embankment. He stated that the wall would be vertical
and provided details on the wall locations.
Commissioner Toth asked the type of material that would be used for the walls.
Mr. Goodrum replied that they are unsure as the soil type would dictate the materials/type
necessary. He recognized that the City has material requirements as well. He stated that they will
work with City staff to ensure the design meets everyone’s standards.
Chair Magnuson opened the public hearing.
Allen Olstein, 1954 Glenhill Road, stated that he wants the developers to be aware that the two
proposed properties across the street from his property are adjacent to a blind curve. He
commented on the hazard of backing out of property in that area.
Steven Douglas, 330 G Street, stated that there is a holding pond in the corner that is not visible
on this plan. He stated that about 20,000 gallons a day drain to that area and water comes into his
page 21
basement. He stated that he cannot handle any more water and has been unable to sell his home
because of that problem.
Bob Bruestle, 370 G Street (Mendota), stated that the former proposal of the development included
a holding pond, which is not a retaining pond. He stated that a small pipe came out of that pond
and inundated his yard. He stated that he blocked that pipe and is currently draining is through a
hose. He stated that when the soil is frozen there is not retention. He stated that he would like to
see a topographical map, as the property all slopes. He stated that the Mendota Springs have not
yet been addressed, noting that hillside is full of springs and if cut into, that water drains out. He
stated that there are two real Indian mounds under the original Culligan development. He stated
that this is a Critical Area and was initially looked at as urban open space. He commented that not
everything has to be developed to have equitable living. He encouraged the Commission members
to visit the area to see the slopes in person. He stated that in the winter, the water all comes down.
Brian Mielke, 1395 2nd Street (Mendota), stated that he is the Mayor of Mendota and they have
multiple concerns with this development. He stated that their concerns are not just what you see,
but what you do not see, like the underground springs. He stated that the proposed walls built into
the ground will disrupt the underground springs and adjacent properties. He stated that if the water
is going to be drained to a retention pond, it will still eventually go into Mendota. He stated that
he would think there is a reason this is the last undeveloped property in that area. He referenced a
landslide that occurred 12 years after a previous development was built, noting that if this
development is approved, the problems might not be seen today it will be seen in the future. He
stated that he would like to see the DNR response to the project, as the DNR expressed concerns
with development in Mendota. He stated that he is also curious if BWSR has commented.
Chair Magnuson asked if the springs have ever been marked.
Mr. Mielke stated that the Mendota property owners would welcome members of the Planning
Commission to come to their properties and see the water on the property from the natural springs.
Commissioner Katz asked if there is a list of ongoing issues with Mendota Heights that could be
addressed between the cities, rather than bringing concerns forward on a piece by piece basis with
projects. He stated that he wants to ensure that Mendota feels that Mendota Heights recognizes its
concerns and that there is a cooperative relationship.
Mr. Mielke commented that he believes there is a good relationship between the cities. He noted
that he does not have any other concerns outside of this development, which he was alerted of this
week.
Community Development Director Tim Benetti noted that notices were mailed to property owners
on July 14th and he sent something to the Mendota City Clerk prior to that date.
Mr. Mielke stated that he will provide his email to City staff and would like to have notices of this
type emailed to him as well.
page 22
Commissioner Katz commented that it appears the drainage issue in this case is the first concern.
He asked if there are other concerns.
Mr. Mielke stated that Mendota is a small city that operates differently than Mendota Heights. He
stated that some of the property owners in that area have accepted the wet conditions, they simply
do not want them made worse.
Steve Golias, 1308 4th Street (Mendota), stated that he owns block 34 and the triangle piece that
abuts this parcel. He stated that he is the Deputy Mayor of Mendota and has been on the Council
for 30 years. He stated that the development that occurred in the 1980s just happened, as the
process was much different then. He stated that the consequences from that development have
been severe. He stated that the property owner at 1290 4th Street has been at the hospital and was
unable to attend but also has concerns over this development. He stated that water does run 365
days of the year, even in the winter. He stated that they water their plants with water coming out
of the hills. He stated that the Mendota City Council only meets once per month and therefore its
Planning Commission and City Council could review the issue at their August meetings. He stated
that he has two homes on his property that are served with well water and has concern with the
damage that could occur to the springs in the hills with this development and the impact that could
have on their wells. He stated that when this project was proposed in the 1980’s, it was stopped
because MnDOT would not give access to 110. He stated that he is concerned with water runoff
from the steep slopes. He asked if the holding pond would be City owned and maintained.
Public Works Director Ryan Ruzek commented that the holding pond is City owned. He stated
that when the new pond on Victoria Curve was constructed, the storm sewer was stubbed in for
this property.
Mr. Golias stated that he would want to ensure that the pond does not discharge down slope. He
stated that he has concern with the disruption of the springs, impacts to wells, and would like to
know additional information about the sewage and how that would be discharged. He stated that
sometimes homeowners install swimming pools and asked if those would be allowed and if so,
how would drainage of those be handled. He stated that the subject property was an old wagon
trail and when he was young his father found an old musket. He stated that he would caution not
just against burial grounds, but other artifacts that could be found. He stated that his triangle piece
of property is landlocked and technically a part of Mendota Heights. He stated that if this goes
forward, he would like to have access to water or to allow that parcel to be a part of Mendota.
Mark Hunt, 1224 Culligan Lane, stated that there are a lot of issues with this property and it seems
that it would seem to have additional engineering completed. He stated that he is concerned with
the number of variances requested within the Critical Corridor area. He stated that the retaining
walls seem triple the size of anything in this area. He stated that he is very concerned with the
tightness proposed, noting that one lot would adjoin to his backyard. He stated that he does not
want to see the land stripped.
Ms. Culligan stated that they can explore the drainage concerns more. She stated that they could
have less variances, with a wider road, but that would have more impacts. She explained that they
are trying to work within the bounds of the property.
page 23
Mr. Goodrum stated that he appreciates the input from residents that have lived in the area for
years and from City staff, noting that they will attempt to address those concerns when they come
back in August.
Chair Magnuson encouraged the applicant and their team to make themselves available to the
residents and City staff of Mendota.
COMMISSIONER FIELD MOVED, SECONDED BY COMMISSIONER KATZ TO LEAVE
THE PUBLIC HEARING OPEN AND TABLE THE ISSUE TO THE AUGUST 25, 2020
REGULAR MEETING AND DIRECT STAFF TO BRING THIS LAND USE REQUEST ITEM
BACK TO THE PLANNING COMMISSION ON THIS SAME DATE.
AYES: 5
NAYS: 0
Community Development Director Tim Benetti noted that this will be reviewed by the Park and
Recreation Commission on August 12, 2020. He noted that notices are not typically sent out when
an item is tabled but stated that staff could send out notices prior to the August Planning
Commission meeting if desired.
Chair Magnuson advised staff to follow the normal process.
Staff Announcements / Updates
Community Development Director Tim Benetti gave the following verbal review:
• The Fred Peterson plat that was recommended for denial was presented to the Council and
was approved.
• The Verizon Wireless request for CUP was approved.
• The Preliminary and Final Plat of Cosgriff Place was approved.
• LDK Builders request for CUP was approved.
Adjournment
COMMISSIONER KATZ MOVED, SECONDED BY COMMISSIONER TOTH, TO
ADJOURN THE MEETING AT 9:03 P.M.
AYES: 5
NAYS: 0
page 24
CITY OF MENDOTA HEIGHTS, DAKOTA COUNTY, MINNESOTA
PARKS AND RECREATION MEETING
MARCH 10, 2020
The March meeting of the Mendota Heights Parks and Recreation Commission was held on
Tuesday, March 10, 2020, at Mendota Heights City Hall, 1101 Victoria Curve.
1. Call to Order – Chair Steve Goldade called the meeting to order at 6:30 p.m.
2. Roll Call – The following Commissioners were present: Chair Steve Goldade,
Commissioners: Patrick Cotter, Pat Hinderscheid, Bob Klepperich, Stephanie Meyer, and Dan
Sherer; absent: Commissioner Amy Smith and Student Representative Matthew Boland. Staff
present: Recreation Program Coordinator, Meredith Lawrence, Assistant City Administrator,
Cheryl Jacobson, Public Works Director, Ryan Ruzek, and City Administrator Mark McNeill.
3. Pledge of Allegiance
The Pledge of Allegiance was recited.
4. Approval of Agenda
Motion Klepperich/second Meyer, to approve the agenda AYES 6: NAYS 0
5.a Approval of Minutes from February 11, 2020 Regular Meeting
Motion Klepperich/second Hinderscheid to approve the minutes of the February 11, 2020 Parks
and Recreation Commission Regular Meeting. AYES 6: NAYS 0
6. Citizen Comment Period (for items not on the agenda)
None.
7. Acknowledgement of Reports
Chair Goldade read the titles of the two updates (Par 3 and Recreation Updates) and polled the
Commissioners for questions.
7.a Par 3 Update
Recreation Program Coordinator, Meredith Lawrence, briefly reviewed the unofficial 2019
financial report.
Commissioner Hinderscheid asked if the current period will be a time of expenses without
revenue.
Ms. Lawrence confirmed that although she does not have 2020 financial reports for the group as
of yet, the Par 3 would only have expens es and no revenue at this point for 2020. This report
was for the financial year 2019.
Commissioner Hinderscheid asked for details on the cost of the sprayer.
Ms. Lawrence replied that cost was $63,000 but was purchased through the Public Works
(Parks) department budget as it will be used for both the Par 3 and parks and therefore did not
come from the Par 3 budget. She confirmed that the new irrigation system will provide more
control over the amount of water used. She explained that she worked with the course’s turf
page 25
consultant to develop weekly and month ly maintenance calendars for the course that will help to
streamline course operations.
7.b Recreation Update
Recreation Program Coordinator Ms. Meredith Lawrence reported that registration opened the
previous week. She stated that there are a lot of new programs and about $30,000 has been
generated in revenue through registrations thus far. She noted that a warming house update
was also provided to the Commission that compared the 2019 season to the 2018 season.
Motion Meyer/second Cotter to acknowledge the staff reports. AYES 6: NAYS 0
8. Unfinished Business
8.a Work Session with City Council
City Administrator Mark McNeill stated that the City Council and Parks and Recreation
Commission have held a joint meeting annually for the past t wo years. He reported that the
meeting will take place at the Commission’s April 14th meeting with a focus on capital priorities
and funding. He advised that the Council held a workshop in February to discuss many
proposed park improvements. He noted that the joint meeting will be an opportunity to further
discuss those topics. He explained that the City is at a crossroads a s much of the parks
infrastructure is aging and as the City becomes fully developed, therefore funding will become a
priority topic. He also reviewed some of the changing demands on the park system and
believed that the Commission should look to the future to determine how those changing needs
could be met through strategic planning for the parks system.
Commissioner Hinderscheid stated that it seemed that during the February Council workshop it
seemed that pickleball may not have support.
Mr. McNeill explained that the issue was not whether there was support, but whether Valley
Park would be the appropriate location.
Commissioner Hinderscheid provided statistics on the number of tennis courts in Mendota
Heights and the recommended ratio of courts to residents based on the United States Tennis
Association.
Commissioner Sherer asked for historical input on a parks referendum and whether that has
been used as a funding source in the past.
Mr. McNeill replied that to his knowledge there was one parks referendum which occurred 30
years ago. He explained that traditionally cities fund parks through levies and/or development
fees.
Commissioner Cotter stated that the Commission has been talking about setting up a capital
improvement plan for each one of the parks on a set schedule. He stated that in terms of
funding, the Commission has discussed fundraising and partnerships as addi tional options. He
agreed that funding and structuring improvements are high priority items. He commented that
the City needs to have a method in place to accept donations from those that wish to contribute.
Chair Goldade asked for details on the financ ial parameters for the parks as discussed by the
Council at its workshop.
page 26
Mr. McNeill emphasized that was a workshop and no official action was taken but there was
consensus that the full balance should not be spent now. He explained that if the fund s are all
spent in 2020, there would be a gap of years without funding.
Chair Goldade referenced the list included in the packet from the July 2019 joint worksession
between the City Council and Park Commission, which was a collaboration between the two
groups.
Commissioner Meyer referenced the West St. Paul Ice Arena and asked for information on
contributions Mendota Heights has made.
Mr. McNeill replied that the City has contributed to the ice arena in the past but 2019 was the
last planned year that Mendota Heights contributed.
Commissioner Hinderscheid acknowledged that revenue for parks improvements is a challenge
and asked staff to research what would need to be done to allow donations for specific projects.
Mr. McNeill replied that the intent was that donations would go through the Mendota Heights
Foundation, assuming that the organization obtains its 501C3 status, which has been a
challenge. He noted that the City can receive donations directly but was unsure that the
contributor would receive the same tax credit. He stated that he can research the topic further.
Chair Goldade suggested that staff provide an update on the options for donations at the May
Commission meeting and noted that the Foundation could provide an update as well.
Mr. McNeill agreed that he could provide a report on the mechanics of that for the April meeting
work session with the City Council.
Commissioner Meyer referenced the sport court used on some tennis courts and stated that the
Commission has received mixed reviews on that surfacing. She stated that perhaps that could
be included in a future survey.
Chair Goldade asked the advantages and disadvantages of holding joint worksessions in
different months of the year.
Mr. McNeill replied that if something is intended to be included in the next year’s budget, the
meeting should take place by April or May as the budget is further along by June.
8.b Schedule Spring Park Visits
Recreation Program Coordinator Ms. Meredith L awrence reported that she met with the Chair
and Vice Chair to discuss the proposed parks tour for the Spring. She asked which parks the
Commission would like to visit and when the tour should occur.
It was the consensus of the Commission to hold the parks tour on May 21st at 4:00 p.m. visiting
Valley, Hagstrom King, and Victoria Highlands, and Marie parks.
Commissioner Meyer asked if there would be interest from the Commission in doing a bike trail
outing in addition to the parks tour. She agreed that she could develop a suggested route to
review.
page 27
8.c Community Engagement Check In
Recreation Program Coordinator Ms. Meredith Lawrence provided background information on
the purpose of the community engagement check -ins. She reported that she attended the PTA
meeting with Commissioners Meyer and Klepperich.
Chair Goldade stated that he is excited that three of the five check -ins have been completed
and there has been valuable information gained.
Commissioner Meyer reported that roughly 20 to 25 people attended the PTA meeting and there
was a lot of feedback received, including a desire for drinking fountains, dog waste dispensers,
and gaga pits. She stated that positive response was heard related to the covered dugout
improvements. She noted that comments were received regarding improvements at Hagstrom
King and Wentworth. She advised that requests were made for a community pool and inquiries
were made related to lighting for tennis courts. She stated that there was a desire for indoor
play areas for children and people were happy to hear about the warming house updates. She
commented that people liked the variety of uses provided in parks, such as Mendakota. She
commented on some of the specific parks in other communities that were ment ioned and the
trend for nature-based play areas. She stated that there was talk about the option of adding
canoe and paddleboard rentals to Rogers Lake.
Commissioner Klepperich stated that many compliments were received in regard to what
Mendota Heights has done for its citizens in terms of recreation and the parks facilities.
8.d Student Representative Position
Recreation Program Coordinator Ms. Meredith Lawrence reported that the Student
Representative position has been posted on the website and ot her platforms. She reported that
the current term will expire at the end of May and reviewed the available term which would be
open to sophomore or junior high school student s who reside in Mendota Heights.
Chair Goldade encouraged that may be interested to apply.
9. New Business
9.a Marie Avenue Street Improvements
Public Works Director Ryan Ruzek provided background details on the plans for the Marie
Avenue Street Improvements, noting that the Council will be asked to approve these plans at its
meeting on March 17th.
Commissioner Sherer referenced the segment of new trail across from Marie Park, noting that
would be a helpful addition but noted that there are trees in that location that provide shade for
the tennis court.
Mr. Ruzek commented that unfortunately there is too much shade provided that cause the court
to stay wet. He commented that the Master Gardeners will walk the site to assist with marking
trees for removal.
Chair Goldade referenced an informal trail used at Marie Park betwee n the tennis court and
hockey rink and asked if there is a thought to formalizing that with a stairway.
Mr. Ruzek commented that a stairway is out of the scope of this project. He stated that the
Council did approve $10,000 of native planting s in the budget this year, which will be focused on
page 28
Marie Park. He stated that will include a woodchip trail and perhaps that could be an option for
that informal trail area.
Commissioner Sherer asked if there would be pavement markings included for Valley Park.
Mr. Ruzek commented that was not included in the current plan but noted that he met with the
consultant the previous week to discuss the striping plan. He provided a brief update on those
plans.
Commissioner Cotter commented that it would seem that thi s would be the time for the Valley
Park improvement recommended by the Commission along with this construction but realized
that was not accepted by the Council.
Commissioner Sherer asked the timing of the project, noting the baseball season.
Mr. Ruzek commented that he is not concerned with the parking being gravel during the
baseball season. He stated that the timing of the baseball season is being considered for the
road closure that will be necessary for a portion of the project.
Commissioner Klepperich asked the ideal construction timeline, if the plans are approved by the
Council the following week.
Mr. Ruzek reviewed the proposed project schedule, noting that construction would most likely
occur from May to October.
Commissioner Meyer asked if a trail segment would remain.
Mr. Ruzek confirmed that all the existing trails would remain and be upgraded to “like-new”
condition.
Commissioner Meyer asked if the speed limit would be changed throughout Marie, as the width
is changed.
Mr. Ruzek reviewed the existing speed limits on the different segments of the road. He agreed
that it would be nice to have a consistent speed limit but that has not yet been decided.
Chair Goldade asked if there would be a ramp at the Eagle Ridge intersection.
Mr. Ruzek confirmed that there would be a ramp to access the trail.
Chair Goldade referenced the decision to remove the crosswalks at two intersections and asked
if bump outs were considered.
Mr. Ruzek commented that cost is an element for the project and ex plained that those were not
included as there does not appear to be a high volume of people crossing at the locations.
10. Staff Announcements
Recreation Program Coordinator Meredith Lawrence shared the following announcements:
Field permits were sent out the previous week to user groups
Registration is open for recreation programs online and at City Hall
page 29
Park Celebration donations are being accepted at this time for the June 6 th event
Family Kickball Tournament on May 16 th; registration is available on the School District
website
“Touch a Truck” event on May 9th at Public Works
Earth and Arbor Day Planting on April 25 th at 1 p.m.; additional volunteers are needed
Other events can be found on the city’s website
11. Student Representative Update
None.
12. Commission Comments and Park Updates
Commissioner Hinderscheid
Visited the dog park and spoke with some users
The pop-up encouraging residents to sign -up for updates is a great addition to the
website
Inver Grove Heights will be offering an archery program
Commissioner Meyer
Marie Park has had a lot of user activity
Commissioner Klepperich
The City does a great job with the Heights Highlights publication mailed to residents
Opportunity to purchase trees starting the following day, information is available on the
City website
Commissioner Sherer
Excited at the possibility that the golf course could open in March
Noted a lot of activity at Hagstrom King
There is a stockpile at Hagstrom King that needs to be removed by the contractor
Asked for an update on the basketball court
Mr. Ruzek stated that he has spoken with the contractor and with road restrictions it is possible
that construction season may not begin until May.
Commissioner Cotter
Looking forward to meeting with representatives from the Rogers Lake Association that
reached out to him
Excited to get back into the parks as Spring begins
Chair Goldade
Thanked citizens that provided input related to the baseball and softball fields and
clarified the improvements that have been approved by the City Council for this year so
far: backstop replacement at Friendly Hills and dugout covers at Hagstrom King with
additional discussion for Mendakota and Victoria Highlands
Attended the worksession the previous month and was pleased to hear the updates for
the warming house at Wentworth
13. Adjourn
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Motion Klepperich/Second Hinderscheid to adjourn the meeting at 7:58 PM
AYES 6: NAYS 0
Minutes drafted by:
Amanda Staple
TimeSaver Off Site Secretarial, Inc.
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DATE: September 1, 2020
TO: Mayor and City Council
FROM: Mark McNeill, City Administrator
SUBJECT: City Hall Hours
Comment:
INTRODUCTION
The Council is asked to consider making permanent the current hours of operation for City Hall.
BACKGROUND
Until last year, Mendota Heights City Hall was open from 8:00 AM to 4:30 M-F. However, in
April, 2019, the City Council approved a recommendation of staff to implement what was to be
“summer hours” of operation, wherein City Hall would operate from 7 AM to 4:30 PM,
Monday-Thursday, and from 7:00 AM to 11:30 on Friday. City Hall would then be closed on
Friday afternoons.
Following an initial success of the new schedule, in September of 2019, those hours were
extended for another year. That approval was with the understanding that it would be for an
additional year, and the topic would be revisited this September.
DISCUSSION
The past year has been unusual, in that the entire building was closed to the public from mid-
March to July 6th, due to the pandemic. During the times that it was open for business, people
were occasionally observed coming to the City Hall front door on Friday afternoons, unaware
that the building was not open. However, when asked, many times these people would be
looking for the Police Department. Where possible, they are directed to the lower level Police
entrance, which has kept the 4:30 PM closing hours. (The Police Department “front desk” hours
have remained the 8:00 to 4:30 hours; Public Works’ hours remain unchanged M-F).
The overall operation from a customer service standpoint has seemed to remain unchanged.
BUDGET IMPACT
The impact of the revised hours on the budget has been negligible.
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RECOMMENDATION
I recommend that the City Council authorize that the 7 AM to 4:30 PM M-TH, and 7:00 AM to
11:30 AM Friday schedule be made permanent.
If ever it is determined to be necessary, the City could easily revert to the traditional schedule.
ACTION REQUIRED
If the Council concurs, it should, by motion, authorize the regular City Hall hours of operation of
from 7:00 AM to 4:30 PM Monday through Thursday, and 7:00 to 11:30 AM on Friday, to
remain unchanged until further notice.
Mark McNeill
City Administrator
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REQUEST FOR COUNCIL ACTION
DATE: September 1, 2020
TO: Mayor, City Council, and City Administrator
FROM: Ryan Ruzek, P.E., Public Works Director
SUBJECT: Resolution 2020-55 Appraisal of Permanent Easements from MnDOT – Valley
Park Drainage Improvements
COMMENT:
INTRODUCTION
The Council is asked to approve a resolution accepting an appraised value, and granting two
permanent easements to MnDOT for improvements to the drainage outlets into Valley Park.
BACKGROUND
MnDOT owns storm sewer systems that collect drainage from I-35E and also conveys drainage
from Mendota Heights properties west of the interstate to the east side of the interstate. Two
locations at the outlets on the east side of I-35E have excessive erosion and are in need of
maintenance.
DISCUSSION
Mendota Heights City Council granted MnDOT a Zero Dollar Permit on November 6, 2019 as
Phase 1 of this project which included the tree removal portion of this project. The tree removal
was completed ahead of the project in the winter due to Mendota Heights being a restricted area
for the Northern Long-eared bat.
The Phase 2 portion of the project will include the addition of two drop structures which will
dissipate energy from the storm water and armoring two channels that convey storm water to
Valley Creek. Two locations have been appraised for permanent easements which MnDOT will
have maintenance responsibilities for.
The two locations are shown on the attached Appraisal Report. The two areas total 12,593
square feet. MnDOT calculated a land valley of the park property of $26,000 per acre. It is
proposing to compensate the city at 50 percent of this value, as this is for easement and not title
acquisition. Mendota Heights will remain the underlying land owner.
The compensation for the two easements totals $3,800.
BUDGET IMPACT
The City would deposit the monies into its general fund, and be put toward future park
improvements.
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RECOMMENDATION
Staff recommends Council approve Resolution 2020-55 accepting the appraised values and offer
for Parcel 433 and granting a permanent easement to the Minnesota Department of
Transportation. It further recommends that the proceeds be used for future park improvements
from the general fund.
ACTION REQUIRED
If Council wishes to enact the staff recommendation, it should pass a motion approving
RESOLUTION 2020-55, APPROVING A PERMANET EASEMENT TO THE
MINNESOTA DEPARTMENT OF TRANSPORTATION. This action requires a simple
majority vote.
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CITY OF MENDOTA HEIGHTS
DAKOTA COUNTY, MINNESOTA
RESOLUTION 2020-55
RESOLUTION APPROVING A PERMANENT EASEMENT TO THE MINNESOTA
DEPARTMENT OF TRANSPORTATION
WHEREAS, the City of Mendota Heights has interest in properties described as:
PID Number 27-03700-03-020 Government Lot 7, Section 23, Township 28 North,
Range 23 West known as Lot 3 Auditor’s Subdivision No. 2, shown as Parcel 433 on
Minnesota Department of Transportation Right of Way Plat Numbered 19-180.; and
WHEREAS, the Minnesota Department of Transportation (MnDOT) will need to utilize
said real property to construct, maintain, and operate the drainage system from Interstate 35E (I-
35E); and
WHEREAS, a purchase package was drafted by MnDOT including an appraisal and a
certified appraisal in the amount of $3800.00 for the permanent easements; and
WHEREAS, the Mendota Heights City Council accepted said certified appraisal amount,
and directs that the proceeds be deposited in the General Fund, and be used for future park
improvements.
NOW THEREFORE, BE IT RESOLVED, the Mendota Heights City Council hereby
approves and authorizes permanent easements to the State of Minnesota.
BE IT FURTHER RESOLVED, the Mendota Heights City Council herby authorizes
the Mayor to sign the Offer to execute the easement documents.
Adopted by the City Council of the City of Mendota Heights this first day of September, 2020.
CITY COUNCIL
CITY OF MENDOTA HEIGHTS
________________________________
ATTEST Neil Garlock, Mayor
_________________________
Lorri Smith, City Clerk
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REQUEST FOR COUNCIL ACTION
DATE: September 1, 2020
TO: Mayor, City Council, and City Administrator
FROM: Ryan Ruzek, P.E., Public Works Director
SUBJECT: Resolution 2020-56 Approve Joint Powers Agreement with Dakota County for
2085 Valencour Circle
COMMENT:
INTRODUCTION
The Council is asked to approve a Joint Powers Agreement (JPA) with Dakota County for the
acquisition and restoration of 2085 Valencour Circle.
BACKGROUND
Dakota County has been working with the City of Mendota Heights on acquiring the properties
that comprise Oheyawahe/Historic Pilot knob since 2004. Both Dakota County and the City
have also provided funding to Great River Greening for grazing activities and also serves on the
Oheyawahe/Historic Pilot Knob Task Force.
DISCUSSION
Mendota Heights and Dakota County worked jointly with the property owner of 2085 Valencour
Circle to enter into a purchase agreement on this property for inclusion into the
Oheyawahe/Historic Pilot Knob. With the assistance of Dakota County, Mendota Heights
submitted an application to the State of Minnesota for a Natural and Scenic Area grant which
was selected for funding.
The Joint Powers agreement identifies responsibilities of each party as well as the cost allocation
for the local share of grant. The JPA will need minor amendments as costs for this project are
finalized.
Dakota County is proposing a nearly equal split of the project costs not covered by the grant.
BUDGET IMPACT
The total estimated cost of this project is $436,600. The city will contribute the grant funds from
the State of Minnesota ($192,000) and its estimated share of the remaining costs are $124,150.
The Dakota County Share of the project is estimated to not exceed $128,450. The Dakota
County share is somewhat higher than that of the city as the restoration costs are proposed to be
split 80/20 with the County having the larger share.
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RECOMMENDATION
Staff recommends that Council approve the Joint Powers Agreement with Dakota County for
cost contribution of the acquisition and restoration of 2085 Valencour Circle.
ACTION REQUIRED
If the City Council concurs, it should pass a motion adopting:
Resolution 2020-56
JOINT POWERS AGREEMENT BETWEEN DAKOTA COUNTY AND THE CITY OF
MENDOTA HEIGHTS FOR ACQUISITION AND RESTORATION OF LAND FOR
PUBLIC USE.
This action requires a simple majority vote.
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CITY OF MENDOTA HEIGHTS
DAKOTA COUNTY, MINNESOTA
RESOLUTION 2020-56
JOINT POWERS AGREEMENT BETWEEN DAKOTA COUNTY AND THE CITY OF
MENDOTA HEIGHTS FOR ACQUISITION AND RESTORATION OF LAND FOR
PUBLIC USE
WHEREAS, Minn. Stat. 471.59 authorizes local governmental units to jointly or
cooperatively exercise any power common to the contracting parties; and
WHEREAS, Dakota County (“County”) is a political subdivision of the State of Minnesota;
and
WHEREAS, the City of Mendota Heights (“City”) is a Minnesota municipal corporation
(collectively herein the County and the City are referred to as the “Parties”); and
WHEREAS, the County and City are desirous of entering into this Agreement so that the
County and the City may share the actual costs for the acquisition and restoration of land, with a
Property Identification Number of 27-57600-03-060 (hereinafter “Property”) and adjacent to
Historic Pilot Knob (HPK), legally described in Exhibit A and generally depicted in Exhibit A-
1 of the agreement, attached hereto, to the public as an addition to HPK.
NOW THEREFORE IT IS HEREBY RESOLVED, by the Mendota Heights City Council
that in consideration of the mutual benefits that the County and the City shall derive from this Joint
Powers Agreement (“Agreement”), the Parties hereby enter into this Agreement for the purpose of
cooperation and funding by the County to the City for actual costs of the Project and to define the
responsibilities and obligations of the County and the City for cost contribution.
BE IT FURTHER RESOLVED that all funds provided by the County are to be used by the
City solely for this purpose, and that the City shall use funds pursuant to this Agreement exclusively
for the payment of actual costs as provided in this Agreement.
Adopted by the City Council of the City of Mendota Heights this first day of September, 2020.
CITY COUNCIL
CITY OF MENDOTA HEIGHTS
Neil Garlock, Mayor
ATTEST
_________________________
Lorri Smith, City Clerk
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JOINT POWERS AGREEMENT FOR ACQUISITION AND RESTORATION OF LAND FOR
PUBLIC USE IN MENDOTA HEIGHTS, MINNESOTA
This Joint Powers Agreement (hereinafter “Agreement”), and any amendments and
supplements hereto, is between Dakota County, a political subdivision of the State of
Minnesota, 1590 Highway 55, Hastings, MN 55033 (hereinafter "County") and the City of
Mendota Heights, a Minnesota municipal corporation, 1101 Victoria Curve, Mendota Heights,
MN 55118 (hereinafter "City") and collectively, the “Parties”.
WHEREAS, the area of the City known as Historic Pilot Knob/Oheyawahe (hereinafter
“HPK”) has ecological, scenic, and well-documented cultural and historical significance; and
WHEREAS; the City, County and other partners began working collaboratively in 2004
to protect this area from residential development; and
WHEREAS, by Resolution No. 05-519 (October 18, 2005) the Dakota County Board of
Commissioners authorized the expenditure of $410,000 of County funds to assist the City in
acquiring 8.4 acres for the future HPK; and
WHEREAS, by Resolution No. 07-573 (December 18, 2007) the Dakota County Board
of Commissioners authorized the expenditure of $410,000 of County funds to assist the City
in acquiring an additional 15.0 acres for the future HPK; and
WHEREAS, the County provided funding to Great River Greening to conduct natural
resource restoration of HPK, including pioneering the use of horses and sheep to graze
portions of HPK as part of the restoration effort; and
WHEREAS, two County staff were appointed by the City Council in 2020 to serve on
the HPK Task Force to make recommendations regarding capital improvements, natural
resource management, and education and interpretation programs on and for HPK to the City
Council; and
WHEREAS, one of the goals of the HPK Task Force is to identify land protection
opportunities, including two remaining residential properties adjacent to the east side of HPK;
and
WHEREAS, Christine M. Snyder, a single person and Trustee of the Christine M.
Snyder Living Trust, dated May 18,1999, as amended, (hereinafter "Seller"), owner of the
0.94-acre residential property located at 2085 Valencour Circle, with a Property Identification
Number of 27-57600-03-060 (hereinafter “Property”) and adjacent to HPK, contacted the
County about her interest in selling the Property, legally described in Exhibit A and generally
depicted in Exhibit A-1, attached hereto, to the public as an addition to HPK; and
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WHEREAS, the County contacted the City to determine their interest in collaborating to
acquire the Property as an addition to HPK; and the City was interested in acquiring the
Property, with the County’s assistance; and
WHEREAS, the County conducted an appraisal of the Property to determine the fair
market value of the property; and
WHEREAS, the City conducted a Phase I Environmental Assessment of the Property
to determine if there were any environmental concerns or liabilities, and none were found; and
W HEREAS, the County assisted the City in developing a Purchase Agreement for
acquiring the Property for $382,000, including a $10,000 option payment by the City to the
Seller due to the expected length of time before the City could acquire the Property, with
option payment credited to purchase price; and
WHEREAS, the County assisted, and the City submitted a Natural and Scenic Area
grant to the Minnesota Department of Natural Resources and was awarded a $192,500 grant
for acquisition of the Property and other associated costs; and
WHEREAS, the City completed a Phase I Archaeological Survey of the Property and
submitted it to the State Historic Preservation Office for review and approval; and
WHEREAS, Minn. Stat. § 471.59 authorizes local governmental units to jointly or
cooperatively exercise any power common to the contracting Parties; and
WHEREAS, the City represents that it is duly qualified and willing to perform the
services set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and benefits that the
County and the City will derive from acting cooperatively in this matter, the County and the
City hereby enter into this AGREEMENT for the purposes set forth herein.
I. CITY’S DUTIES City shall:
a. Acquire the fee title to the Property by October 31, 2020, as a natural area
addition to HPK, pursuant to the terms of the Purchase Agreement;
b. Salvage/demolish/remove the existing buildings and other improvements on
the Property following State Historic Preservation Office guidelines;
c. Complete initial Property restoration following State Historic Preservation
Office guidelines after the buildings are removed;
d. Work with the County to jointly develop a Natural Resource Management
Plan (hereinafter “NRMP”) for the Property within four months of acquisition;
e. Contribute up to 20 percent of the cost to implement the NRMP on the Property;
f. Provide and install signage on the Property indicating the use of County and
state funds to acquire and improve the Property;
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g. Complete and record a state grant-required Notice of Funding Restriction on
the Property; and
h. Complete the project in accordance with the approved budget to the extent
practicable and within the project period specified in this Agreement.
Any material change in the scope of the project, budget or completion date shall
require prior written approval by the County.
II. COUNTY’S DUTIES County shall:
a. Work with the City to jointly develop a NRMP for the Property within four
months of acquisition;
b. Complete and record a state Outdoor Heritage Fund -required Notice of
Funding Restriction on the Property;
c. Contribute up to 80 percent of the cost to implement the NRMP on the
Property; and
d. Provide signage associated with County funding or state funding obtained
through the County.
Any material change in the scope of the project, budget or completion date shall
require prior written approval by the City.
III. CONSIDERATION AND TERMS OF PAYMENT
A. PROJECT COST BUDGET
1. The estimated total cost to acquire fee title of the Property, including
appraisal, environmental and archaeological, closing, and
salvage/demolition/removal costs is $436,600.
a. The City will contribute $192,500 of state grant funds awarded to the City
and up to $122,050 of City funds toward the fee title acquisition of the
Property and other associated costs,
b. The County will contribute up to $122,050 toward the fee title acquisition
of the Property and other associated costs, including the use of state
Outdoor Heritage Funds appropriated to the County.
2. The estimated cost to restore the Property is $8,000.
a. The City will contribute up to $1,600 to remove invasive species, install
native seeds, trees and shrubs according to the approved NRMP.
b. The County will contribute up to $6,400 to remove invasive species, and
install native seeds, trees and shrubs according to the approved NRMP.
THE TOTAL CITY OBLIGATION SHALL NOT EXCEED Three Hundred Three
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Thousand Eight Hundred Fifty Dollars ($316,150).
THE TOTAL COUNTY OBLIGATION FOR ALL COMPENSATION AND
REIMBURSEMENTS TO THE CITY SHALL NOT EXCEED One Hundred
Sixteen Thousand One Hundred Fifty Dollars ($128,450).
Funds made available pursuant to this Agreement shall be used only for
expenses incurred in performing and accomplishing the purposes and activities
specified herein.
B. TERMS OF PAYMENT
1. PAYMENT/DISBURSEMENT SCHEDULE: The County will disburse funds to
the City pursuant to this Agreement at closing on the City’s purchase of the
Property based on a complete and accurate settlement statement and
review of the documents to be exchanged at closing placing title in the City.
2. CONDITIONS OF PAYMENT: All services provided by the City pursuant to
this Agreement shall be performed to the satisfaction of the County, as
determined at the sole discretion of its authorized representative, and in
accordance with all applicable federal, State, and local laws, ordinances,
rules and regulations. The City shall reimburse the County for any funds
provided by the County to the City pursuant to this Agreement, if the City
fails to acquire the Property and other responsibilities included in this
Agreement
III. TERM OF AGREEMENT The City shall perform the activities outlined in the
approved project scope during the period beginning with final execution of this Agreement
and ending when all obligations set forth in this Agreement have been satisfactorily fulfilled.
IV. CANCELLATION The County may cancel this Agreement at any time upon
thirty (30) days' written notice to the City if: (a) the County finds that there has been a failure
to comply with the provisions of this Agreement; (b) the County finds that reasonable progress
has not been made; or (c) that the purposes for which the funds were granted have not been
or will not be fulfilled. The County may take action to protect the interests of the County
including the refusal to disburse additional funds and require the return of all or part of the
funds already disbursed. This Agreement may be canceled by the City at any time upon thirty
(30) days written notice to the County, so long as County has disbursed no funds in fulfillment
of its obligations hereunder.
V. AUTHORIZED REPRESENTATIVES The County’s Authorized Representative
for the purposes of administration of this Agreement is the Dakota County Physical
Development Director. Such representative shall have final authority for acceptance of the
City’s services. The City’s Authorized Representative for purposes of administration of this
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Agreement is the City of Mendota Heights Administrator. The City’s Authorized
Representative shall have full authority to represent the City in its fulfillment of the terms,
conditions and requirements of this Agreement.
VI. ASSIGNMENT The City shall neither assign nor transfer any rights or
obligations under this Agreement without the prior written consent of the County.
VII. AMENDMENTS Any amendments to this Agreement shall be in writing and
shall be executed by the same Parties who executed the original Agreement or their
successors in office.
VIII. LIABILITY Each Party shall be responsible for the acts or omissions of its
officials, agents, and employees, and the results thereof, in carrying out the terms of this
Agreement, to the extent authorized by law and shall not be responsible for the
acts/omissions of the other Party and the results thereof. For purposes of determining total
liability for damages, the participating governmental units shall be considered to be a single
governmental unit, the total liability of which shall not exceed the limits for a single
governmental unit as provided in Minnesota Statutes, § 466.04, Subdivision 1.
Each Party shall defend, hold harmless, and indemnify the other Party, its officials,
agents, and employees, from any liability, loss, or damages the other Party may suffer or
incur as the result of demands, claims, judgments, or cost arising out of, or caused by the
indemnifying Party's negligence in the performance of its respective obligations under this
Agreement. This provision shall not be construed nor operate as a waiver of any applicable
limitation of liability, defenses, immunities, or exceptions by statute or common law
IX. AUDITS The books, records, documents and accounting procedures and
practices of the City, relevant to this Agreement, shall be subject to examination by the
County, the Legislative Auditor, the Secretary of the Interior, and the Comptroller General of
the United States, for a minimum of six years from the end of this Agreement. The parties are
authorized to substitute microfilm copies or photocopies of fully executed documents in lieu of
original records.
X. GOVERNMENT DATA PRACTICES ACT The parties will comply with the
Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to all
data assembled by the parties in accordance with this Agreement, and as it applies to all data
created, collected, received, stored, used, maintained, or disseminated by the parties in
fulfillment of this Agreement. The civil remedies of Minnesota Statutes Section 13.08 apply to
the release of the data referred to in this Article by either party.
XI. PUBLICITY/ACKNOWLEDGMENT/SIGNAGE Any publicity given to the
program, publications, or services provided resulting from this Agreement, including, but not
limited to notices, informational pamphlets, press releases, research, reports, signs, and
similar public notices prepared by or for the City or its employees individually or jointly with
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others shall identify the County as a sponsoring agency. Upon project completion, the City
shall post a permanent sign acknowledging County funding, in a form jointly approved by the
County and City at an appropriate location on the Property in accordance with the NRMP.
XII. JURISDICTION AND VENUE This Agreement shall be governed by the laws of
the State of Minnesota. Venue for all legal proceedings arising out of this Agreement, or
breach thereof, shall be in the state or federal court with competent jurisdiction in Dakota
County, Minnesota.
XIII. REPORTING REQUIREMENTS The City shall submit an interim status report
to the County by December 31, 2020, and a final report upon completion of Phase II
implementation of the NRMP or December 31, 2022, whichever occurs first.
XIV. LAND RETENTION REQUIREMENTS
A. NOTICE OF FUNDING RESTRICTION A recorded Notice of Funding
Restriction for any real property interest acquired in part or in full, from funds
appropriated to the Commissioner of Natural Resources for state acquisition
funding allocated to and through the County and City is required.
B. CONVERSION OF USE It is the intention of the parties that the Property shall
be owned, maintained and managed by the City consistent with the purpose and
type of property to properly protect the natural and/or scenic resources in
perpetuity. The City shall not at any time convert the Property to uses other than
the permitted uses specified in this Agreement without the prior written approval
of the County.
The interest in real property, or any portion of the interest in real property, shall
not be sold, transferred, pledged, or otherwise disposed of or further
encumbered without obtaining the prior written approval of the Lessard-Sams
Outdoor Heritage Council or its successor for the contribution of state grant
funds through the County and prior written approval from the Legislative Citizen
Commission on Minnesota Resources for the contribution of state grant funds
through the City. If the holder of the interest in real property fails to comply with
the terms and conditions of the grant agreement or work program, ownership of
the interest in real property shall transfer to the State.
The County will consider a conversion request only after all the following pre-requisites
have been met:
1. All practical alternatives to the conversion have been evaluated and rejected
on a sound basis;
2. The City has agreed to replace the converted lands with other lands of at
least equal fair market value and reasonably equivalent natural or scenic
resources as determined by the County;
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3. The LSOHC has approved the conversion request;
4. Any conversion approval required by the state Scenic and Natural Area
grant.
The County shall have the authority to approve or disapprove conversion requests.
XVI. NATURAL RESOURCE MANAGEMENT AND PROTECTION The City shall
protect, manage, and maintain, or cause to be maintained as provided for in the NRMP. All
state and federal accessibility laws, regulations, and standards shall be adhered to.
Vegetation management and similar safeguards and supervision shall be provided to the
extent feasible. Failure to adequately manage, maintain and protect the Property may result
in ineligibility of the City to receive future Land Conservation Program funds from the County.
XVII. PUBLIC ACCESS The City shall keep the Property open to the general public at
reasonable hours and at times of the year consistent with the purpose and type of use of the
Property and appropriate management and protection of natural resources in accordance
with City park ordinances.
XVIII. NATIVE PLANT SPECIES New vegetation (re)planted on the Property must be
native to Minnesota and preferably of the local ecotype, unless the NRMP expressly allows
the planting of species that are not native to Minnesota.
XIX. MONITORING The County’s authorized representative, or designee, shall be
allowed annual inspections to ensure that the City is in compliance with the terms of the
NRMP and that no conversion of use has occurred.
XX. OTHER PROVISIONS A copy of this Agreement and all incorporated elements
shall be permanently maintained on file by the City and the County.
-This Space Intentionally Left Blank-
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed,
intending to be bound by all the terms contained herein.
CITY OF MENDOTA HEIGHTS COUNTY OF DAKOTA
By: ____________________________ By: _________________________
Neil Garlock, Mayor Steven C. Mielke, Physical
Development Division Director
Date of Signature: ________________ Date of Signature: ___________
By: ____________________________
Lorri Smith, City Clerk
APPROVED AS TO FORM
Date of Signature: _______________
___________________________
APPROVED AS TO FORM Assistant County Attorney
Date of Signature _____________File
___________________________ Number: KS-2020-00359
City Attorney's Office
Date of Signature: ____________ Approved by Board
Resolution No. 20-___
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EXHIBIT A
Legal Description of the Christine M. Snyder Living Trust Property
Tract No. 478
Lot Six (6) in Block Three (3), Pilot Knob Heights, according to the recorded plat of
said addition on file in the officer of the Register of Deeds in and for said Dakota
County, Minnesota
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EXHIBIT A
General Depiction of the Christine M. Snyder Living Trust Property
Tract No. 478
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Request for City Council Action
MEETING DATE:September 1, 2020
TO:Mayor, City Council, and City Administrator
FROM:Kristen Schabacker, Finance Director
SUBJECT:CARES Act Grant Agreement related to Election Expenses
COMMENT:
INTRODUCTION
The Council is asked to approve Resolution 2020-52 Approving a CARES Act Grant Agreement with
Dakota County for COVID related election expenses.
BACKGROUND
The Office of the Secretary of State received funding through the 2020 CARES Act “to
prevent, prepare for, and respond to coronavirus, domestically or internationally, for the 2020
Federal election cycle.” Minnesota Laws 2020, Chapter 77, authorized the use of these funds,
including allowing for distributing these funds to local governments for use consistent with the
state and federal requirements. Dakota County received an allocation of the CARES Act
funding, which it is now distributing to cities and townships using a default allocation formula.
Mendota Heights default allocation amount is $ 6,281.41, which requires a local 20% funding
match. State law outlines the categories for which the funds can be used, such as:
1. Ensuring the health and safety of election officials and in-person voters, including
the purchase of sanitation and disinfectant supplies;
2. Public outreach and preparations for implementing social distancing guidelines
related to voting, including additional signs and staff;
3. Facilitation, support, and preparation for increased absentee voting, including voter
education materials, printing, and postage;
4. Preparation of training materials and administration of additional training of local
election officials; and
5. Preparation of new polling place locations;
BUDGET
The City has incurred COVID-related election expenses for the State Primary and more
expenses are expected for the General Election. This grant will reduce the expected budget
overage for the 2020 election cycle.
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RECOMMENDATION
Staff recommends the Council approve:
RESOLUTION 2020 - 52
APPROVING 2020 CARES ACT GRANT COUNTY-MUNICIPALITY AGREEMENT
FOR COVID-19 RELATED ELECTION EXPENSES
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CITY OF MENDOTA HEIGHTS
DAKOTA COUNTY, MINNESOTA
RESOLUTION 2020 - 52
APPROVING 2020 CARES ACT GRANT COUNTY-MUNICIPALITY AGREEMENT
FOR COVID-19 RELATED ELECTION EXPENSES
WHEREAS, the City of Mendota Heights has identified increased election expenses related to the
COVID-19 health pandemic; and
WHEREAS, Dakota County has received a 2020 CARES Act grant for increased election
expenses; and
WHEREAS, Dakota County has proposed to allocate default grant amounts to cities to help defray
increased elections expenses through a County-Municipality Agreement; and
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Mendota Heights
hereby selects the default funds allocation between the county and the municipality. The sum of
$6,281.41 will be provided by the county to the municipality under the CARES Act grant to which
the county is the Grantee, and the municipality acknowledges that it is subject to the provisions of
paragraphs 1 through 5, 7 through 11 and 13 through 15 of the 2020 CARES Act Grant Agreement
as if it were the Grantee.
BE IT FURTHER RESOLVED the City of Mendota Heights approves the 2020 CARES Act
Grant County-Municipality Agreement; and that City Clerk Lorri Smith, is hereby authorized to
execute such agreement and any amendments as are necessary to receive and use the funding for
the 2020 elections.
Adopted by the City Council of the City of Mendota Heights this 1st day of September, 2020.
CITY COUNCIL
CITY OF MENDOTA HEIGHTS
________________________________
Neil Garlock, Mayor
ATTEST:
________________________________
Lorri Smith, City Clerk
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1
CARES Act
Grant Application
In accordance with the requirements of Minnesota Laws 2020, Chapter 77
Minnesota Secretary of State Steve Simon
Contents
A. Background and General Instructions – Page 1
B. County Application – Page 3
C. County Certification – Page 5
D. Reporting Requirements – Page 6
E. County Allocation – Page 7
F. Allocation Formula – Page 9
G. Default Municipal Allocation – Page 10
Section A. Background and General Instructions
The Office of the Secretary of State (OSS) received funding through the 2020 CARES Act “to prevent,
prepare for, and respond to coronavirus, domestically or internationally, for the 2020 Federal
election cycle.” Minnesota Laws 2020, Chapter 77, authorized the use of these funds within
Minnesota, including allowing for distributing these funds to local governments for use consistent
with the state and federal requirements.
A work group including members of the OSS staff, county representatives, and city representatives
was tasked with determining a fair, equitable, and efficient way to allocate these funds to local
governments through a grant-making process. The work group focused on allocation with these
goals in mind:
1. Getting funds to counties/cities/towns directly to help with costs
2. Minimizing the complexity of the disbursement/reimbursement process
3. Sending out funds with direction on how to use and how to report back on use (and 20%
match), avoiding a “reimbursement” process
4. Ensuring the state, counties, cities, and towns benefits equitably
The work group recommended, and the OSS adopted, a grant-making structure that provides a
block-grant to Counties, with the instruction that Counties work with their municipalities to
determine a fair, equitable, and mutually agreeable method for allocating the funds within the
County and between municipalities. However, if a County and its encompassed municipalities
cannot come to a mutual agreement, a default allocation mechanism is provided. Both the
distribution of funds to Counties, and the default municipality distribution, are based on a formula
using various election-related factors (see Section F for the allocation formula factors).
Application Process
The OSS has divided the CARES Act funding based on a variety of election-related factors. In order
for a County to receive the CARES Act funding allocation, the County must do the following:
1. Complete and return the following materials to the OSS via email and hard copy:
a. County Application Information (Section B)
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2
b. County Certification (Section C)
c. A County Resolution Authorizing the Acceptance of Resources
2. Complete and return the grant agreement (the OSS will send this once application materials
are received).
Distribution of Funds within the County
Once a County receives the CARES Act funding, the County must work with the municipalities within
the County to determine a fair, equitable, and mutually agreeable method for allocating the funds
within the County and between municipalities. If an agreement cannot be reached by September 8,
2020, the County must distribute the funds based on the default allocation (See Section G).
All Counties receiving CARES Act funds under this agreement must report the allocation of local
funding within the County to the OSS by September 15, 2020. At the time of this report, Counties
must also certify that they have written agreements with municipalities on the distribution, or that
the County has utilized the default allocation.
Authorized Uses of the CARES Act Funding
The use of the CARES Act funds is restricted by both Federal and State law. State law outlines the
broad categories for which the funds can be used, including:
(1) ensuring the health and safety of election officials and in-person voters, including the
purchase of sanitation and disinfectant supplies;
(2) public outreach and preparations for implementing social distancing guidelines related to
voting, including additional signs and staff;
(3) facilitation, support, and preparation for increased absentee voting, including voter
education materials, printing, and postage;
(4) preparation of training materials and administration of additional training of local election
officials;
(5) preparation of new polling place locations; and
(6) purchasing an electronic roster system meeting the technology requirements of Minnesota
Statutes, section 201.225, subdivision 2, along with equipment necessary to support the
system.
The enabling legislation also specifies that a political subdivision is eligible to use the funds for no
more than 75 percent of the total cost of purchasing an electronic roster system and necessary
support equipment, and no more than 80 percent of the total cost of any other authorized
activities. The OSS will be providing an FAQ on authorized uses of these funds, and any jurisdictions
with questions about an authorized use should contact Julie Strother (julie.strother@state.mn.us).
Reporting Requirements
Counties must report on the use of the funds allocated to the County, including the distribution and
use by municipalities within the County by November 16, 2020 (see reporting materials, Section D).
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Section B. County Application
County Contact Information
County Name:
Name of Individual
Submitting Application:
Title of Individual Submitting
Application:
Address of Individual
Submitting Application:
E-Mail of Individual
Submitting Application:
Phone:
Fax:
Federal Tax ID of Jurisdiction:
Grant Application
Description of the purpose of the grant request, including intended use of the funds and expected
COVID-19 election-related costs:
Total Amount of Grant Request (cannot
exceed the amount identified in Section F):$
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4
Total Registered Voters Per Precinct within the County
Please attach a list of the total registered voters per precinct within the County.
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Section C. Certification
I certify that CARES Act Elections Grant funds will be used the County only for the purposes
authorized in the federal CARES Act, as further restricted by Minnesota Laws 2020, Chapter 77.
I certify that I will work with the municipalities within the County to determine a fair, equitable,
and mutually agreeable allocation of the funds within the County and between municipalities,
and if an agreement cannot be reached, the funds will be distributed pursuant to the OSS
identified default allocation.
I further certify that all information provided in this application is true and accurate.
County Name:______________________________________________________________
Printed Name of Individual
Submitting Application:______________________________________________________
Title of Applicant:___________________________________________________________
Signature: ________________________________________ Date: __________________
Please send the original application via mail and send an electronic copy. Our office will send
you confirmation of receipt of your electronic application or paper application, whichever
arrives to the OSS first.
Mail original applications to:
MN Secretary of State
Attention: Jenny Kurz
Retirement Systems of Minnesota Building
60 Empire Dr., Suite 100
Saint Paul, MN 55103
Email a copy of the application to:
Christine.Nelson@state.mn.us
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Section D. Reporting Requirements
Reports must be submitted by November 16, 2020 to elections.dept@state.mn.us
Progress Narrative
The CARES Act requires that states submit a report after each primary and general election that includes a
“full accounting of the State’s uses of the payments and an explanation of how such uses allowed the State to
prevent, prepare for, and respond to coronavirus.” Please provide a narrative report that describes how you
and the municipalities within your county used the funds to address the pandemic, the challenges you faced
in responding to it, and how you are meeting the requirement of a local 20% funding match, or 25% local
funding match for electronic rosters. Describe the major issues you and the municipalities within your county
faced in dealing with the pandemic in the election cycle.
Amount Expended and Unliquidated Obligations
Grant Funds Local Match
Voting Process Expenses:Including additional costs for
printing and mailing ballots, ballot tracking software, high
speed scanners and letter opening equipment, hardware
and software associated with absentee ballot
administration.
Staffing: Additional poll workers, election office staff
diverted to pandemic response, temporary staff.
Security and Training: Security for additional absentee
materials, pre- and post-election cleaning of polling places,
staff and poll worker training on prevention processes.
Communications: Notifying public of changes in registration,
ballot request options, precautions, or voting procedures.
Supplies: Additional supplies required in the polling place,
absentee voting locations, cleaning supplies, masks, or other
election-related and pandemic related supplies.
Other (describe):
Other (describe):
TOTAL:
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Section F. Allocation Formula
County Block Grant Amount and City/Town Point-of-Reference Amount Factors
This is a high-level review of the calculation and factors considered by the work group in determining
the county block grant amount and the city and town point-of-reference amounts. The concept is for
the county block grant amount to be distributed by mutual agreement between the county and all the
cities/townships within that county.
$8.32 million in CARES Act funding
o 40% allocated to the OSS = $3.33 million
o 60% allocated to counties (and cities and townships) = $4.99 million
Of the $4.99 million allocated to the counties (and cities and townships), it is distributed as
follows and based on per-unit rates:
o 2.5% is based on base allocation equally divided to each county = $1,433.9193
o 25.0% based on 2018 voter (Primary and General) count = $0.3527 per voter
o 20.0% based on 2018 General Absentee Voter count = $1.7777 per voter
o 20.0% is based on May 1 registered voter counts = $0.2942 per voter
o 20.0% is based on number of polling places = $347.6168 per polling place
o 2.5% is based on 2018 population = $0.0222 per person
o Precinct-based allocations equate to $166.2221 per polling place precinct and $27.3321
per mail ballot precinct
10.0% is based on number of total precincts = $121.4121 per precinct
2.5% is based on number of polling place precincts = $44.8100 additional per
polling place precinct
-2.5% is based on number of mail ballot precincts = reduction of $94.08 per mail
ballot polling place
This results in a range of county block grants of $5,241.70 to $1,117,423.48. Median is $24,827.45 and
average is $57,356.77.
Of the $4.99 million allocated to the counties (and cities and townships), the work group
recommends the counties and their cities and townships work to distribute the county’s block grant
funding. If agreement cannot be reached, then the work group provides point-of-reference
amounts for each city/township that operates an election day polling place. This totals $2.875
million.
o The original 60% county block allocation is split 20% county and 40% cities/townships. The
county receives the funding for mail ballot precincts and for absentee voting (if they
complete those tasks for the jurisdiction) the under this formula as well.
o The same factors listed above apply.
This results in a range of distributions of $30.82 to $237,630.19. Median is $589.66 and average is
$1,999.42.
After reducing the county block grant amount by the point-of-reference amounts as listed, the county
remaining portions (totaling $2.1 million) result in a range of $4,127.92 to $385,503.48. Median is
$11,623.78 and average is $24,308.91.
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1
STATE OF MINNESOTA
2020 CARES ACT GRANT COUNTY - MUNICIPALITYAGREEMENT
This Agreement (hereinafter “Agreement”) is made between __________________ County,
__________________________ ("Grantee"), and the [city][town] of __________________,
___________________________________(“Municipality”)
Recitals
1 Under Minnesota Laws 2020, Chapter 77, section 4, Grantee applied for and received funds as
requested in the grant application. Grantee entered into a Grant Agreement, which is attached as
Exhibit A and incorporated into this Agreement as described in paragraph 1.3 below.
2 Grantee represented that it is duly qualified and agreed to perform all services described in that
Agreement to the satisfaction of the State and in accordance with all federal and state laws
authorizing these expenditures. Pursuant to Minn.Stat.§16B.98, Subd.1, Grantee and Municipality
agree to minimize administrative costs as a condition of this grant.
3 Federal funds for this agreement are provided pursuant to the Coronavirus Aid, Relief, and Economic
Security Act, Public Law 116-136, hereinafter the CARES Act.
4. Grantee is responsible for elections within its county and Municipality operates polling places
within its jurisdiction. Both are in need of funds to take the necessary steps to respond to
coronavirus, domestically or internationally, for the 2020 election cycle.in a complete manner.
5. Municipality represents that it has insufficient resources to respond in a complete manner without the
grant amount provided pursuant to this agreement.
Agreement
1 Effectiveness of Agreement
1.1 Effective date:July ____, 2020, or the date all required signatures, have been affixed to the
agreement by Grantee and Municipality, whichever is later. No payments will be made to Grantee
until this Agreement is fully approved and executed.
1.2 Expiration date:December 31, 2020, or when all funds applied for and provided to Municipality
by Grantee have been expended, or returned to Grantee for transmission to the State pursuant to
paragraph 4.4 of the Agreement between Grantee and State, whichever occurs first.
1.3 Application of Terms.Municipality agrees to be subject to the obligations applicable to Grantee
in the Grant Agreement set forth in Exhibit A in the following paragraphs of that Agreement:
paragraphs 1 through 5; 7 through 11; and 13 through 16.
2 Municipality’s Duties
Municipality is hereby awarded $_______________ from the funds provided by State to Grantee in
the Grant Agreement set forth in Exhibit A, and will expend, no later than November 1 06, 2020, the
funds only for the federal and state purposes, in preparations for and the necessary events connected
with the primary election to be held August 11, 2020 and the general election to be held November 3,
2020, at which federal offices are on the ballot, and will return all unspent grant funds to Grantee, as
described in the Grant Application submitted by Grantee, which is attached as Exhibit B and
incorporated into this Agreement, by December 15, 2020.Grantee shall submit, by November 10,
2020, a financial reporting form to the Grantee in the form Grantee must use to report grant
expenditures to the State of Minnesota, stating the amount spent from this grant in calendar year 2020
for authorized expenses or electronic roster systems, a description of each expense or purchase, and
how much of the grant award is unexpended and is being returned, if any, and the total of the
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2
proportionate match required by Minnesota Laws 2020, Chapter 77, section 4.
3.Authorized Representative
Grantee’s Authorized Representative is [Name][Title][Physical/MailingAddress][Telephone
Number][ Email Address].
Municipality’s Authorized Representative is [Name][Title][Physical/MailingAddress][Telephone
Number][ Email Address].
Grant payment will be made to:
______________
Federal ID Number: ________________
If either Authorized Representative changes at any time before the funds provided for in this
Agreement are fully expended, parties must notify each other of the change.
GRANTEE (County)Grantee certifies that the appropriate person(s) have executed the Agreement on behalf of Grantee as required by
applicable resolutions or ordinances.
By: ____________________________________________
Signed: _____________________________________________
Title: ____________________________________________________
Date: _______________________________________________
MUNICIPALITY
Jurisdiction: ________________________________________
By: ________________________________________________
Title: ______________________________________________
Date: _______________________________________________
By: ________________________________________________
Title: ______________________________________________
Date: _______________________________________________
Distribution: Grantee
Municipality
page 74
OMD tq-l�g l
STATE OF MINNESOTA
2020 CARES ACT GRANT AGREEMENT
']'his Agreement (hereinafter "Agreement") is made between the State of Minnesota, (hereinafter, "State") acting
through its Secretaryof State, 180 State Offggtuilding, 100 Rev. Dr. Martin Luther King Jr. Boulevard, Saint
Paul, MN 55155-1299 ("Stage") and Dakola'Coimty, 1590 Hwy 55, Suite 2300 Hastings, MN 55033 ("Grantee").
Recitals
1 Under Minnesota Laws 2020, Chapter 77, section 4, Grantee is empowered to apply for the funds requested in
this Agreement, and submitted a grant application under subdivision 6 of that section, and State is empowered
to enter into this grant.
2 Grantee represents that it is duly qualified and agrees to perform all services described in this Agreement to
the satisfaction of State and in accordance with all federal and state laws authorizing this grant. Pursuant to
Minn.Stat § 1613.98, Subd. 1, Grantee agrees to minimize administrative costs as a condition of this grant.
3 Federal funds for this agreement are provided pursuant to the Coronavirus Aid, Relief, and Economic
Security Act, Public Law 116-136, hereinafter the CARES Act.
4 State is in need of assistance to prevent, prepare for, and respond to coronavirus, domestically or
internationally, for the 2020 election cycle.
5. Grantee is responsible for elections within their county and is in need of funds to take the necessary
steps to so respond in a complete manner.
6. Grantee represents that it has insufficient resources to respond in a complete manner without the grant
amount provided pursuant to this agreement.
Agreement
Effectiveness of Agreement
1.1 Effective date: August 19, 2020, or the date all required signatures, including those required by
Minnesota Statutes, § 16B.98, Subd. 5, have been affixed to the agreement by Grantee and State,
whichever is later. Per Minnesota Statutes,§ 166.98, Subd. 11, Grantee submitted and State approved a
work plan and budget as part of the Grant Application, incorporated herein. Per Minnesota Statutes
1i16B.98 Subd. 7, no payments will be made to Grantee until this Agreement is fully approved and
executed, and Grantee has been notified by State's Authorized Representative that they are in compliance
with the terms of this Agreement.
1.2 Expiration date: December 31, 2020, or when all funds applied for and provided to Grantee by State
have been expended, or returned pursuant to paragraph 4.4, whichever occurs first.
1.3 Survival of Terms. The following clauses survive the fulfillment of this Agreement: 4. Consideration and
Payment; 8. Liability; 9. Audits and Reports; 10. Government Data Practices; 12. Property and Casualty
Insurance; 13. Governing Law, Jurisdiction, and Venue; and 14. Data Disclosure.
Grantee's Duties
2.1 Activities. Grantee, who is not a state employee, will comply with required grants management policies
and procedures set forth through Minn.Stat.§16BL97,Subd. 4 (a) (1) and will use all funds provided as a
result of this Agreement for the federal and state purposes permitted under Public Law 116-136 and
Minnesota Laws 2020, chapter 77, section 4, subdivision 4, which are incorporated into this Agreement,
and as set forth in the Grant Application previously submitted by Grantee, incorporated herein, and
attached hereto. As Chief County Election Official, the County Auditor or Election Director is responsible
for fulfilling all requirements of Grantee under this agreement.
✓v
2.2 Award and Matching Funds. Grantee is hereby awarded $348,254.62. G�Smntee must match the funds
expended from this grant with local funds equivalent to 20% of the grant, or 25% of the funds expended
on electronic roster systems.
2.3 Expenditures. Grantee will expend the funds only for the federal and state purposes and as described in
the Grant Application submitted by Grantee, which is incorporated into this Agreement, except as set
forth in paragraph 2.4 of this Agreement.
Grantee will expend funds granted by this Agreement as well as the required match, on preparations for
and the necessary events connected with the primary election to be held August 11, 2020 and the general
election to be held November 3, 2020, at which federal offices are on the ballot, no later than November
16, 2020, and will return all unspent grant funds to the State by December 31, 2020.
2.4 Municipalities. Grantee must work with municipalities within Grantee's jurisdiction to determine
a fair, equitable, and mutually agreeable method for allocating grant funds within Grantee's jurisdiction
and between municipalities. Grantee and municipalities must enter into an agreement stating the
allocation and that the municipality is subject to the same terms as Grantee with respect to these funds. If
no agreement is reached by September 8, 2020, Grantee must allocate and distribute the funds based on
the default allocation contained in Section G of the Grant Agreement in Exhibit A. If the default
allocation is used, the governing body of both Grantee and each municipality receiving funds must
approve a resolution setting forth the allocation, and that by accepting the funds, the municipality is
subject to the terms set forth in paragraphs 1 through 5; 7 through 11; and 13 through 16 of this
Agreement as if it were the Grantee.
Grantee must report the allocation to municipalities within Grantee's jurisdiction to State by September
15, 2020. At the time of that report, Grantee must also certify that they have written agreements with
municipalities regarding the allocation and terms, or that the County has utilized the default allocation.
2.5 Reporting Requirements. Grantee shall report to the State as specified in this Agreement.
2.5.1 Progress Reporting. Grantee shall submit, by November 16, 2020, a financial reporting form
to the State utilizing the format identified by the State, stating the amount spent from this
grant in calendar year 2020 for authorized expenses or electronic roster systems, a description
of each expense or purchase, and how much of the grant award is unexpended and is being
returned, if any, and the total of the proportionate match required by Minnesota Laws 2020,
Chapter 77, section 4.
2.5.2 Other Requirements. Grantee must maintain financial records for each grant
sufficient to satisfy audit standards or other reporting requirements and must transmit those
records to the secretary of state upon request of the secretary of state.
2.5.3 Evaluation. State shall have the authority, during the course of this grant period, to
conduct an evaluation of the performance of Grantee.
2.5.4 Requirement Changes. State may modify or change all reporting forms at their
discretion during the grant period.
2.5.5 Special Requirements. The State reserves the right to append to the Agreement terms, at any
time before all grant funds have been expended, special administrative requirements deemed
necessary to assure Grantee's successful implementation of the program. The State will notify
the Grantee in writing of any special administrative requirements.
2.6 Accounting Requirements - Fiscal Control and Accounting Procedures.
Grantee's fiscal control and accounting procedures must be sufficient to:
(a) Permit preparation of reports required by this Agreement,
(b) Permit the tracing of funds to a level of expenditures adequate to determine that funds have not
been used in violation of this agreement, and
(c) Support accounting records through source documents, such as: cancelled checks, invoices and
paid bills, agreement and sub award documents, and records sufficient to detail history of
procurements.
2.7 Alterations in Spending Plan.
Any changes in the purposes for which this grant is spent that are still within the federal and state
purposes, or adjustments in local allocations, from those set forth in the grant application, must be
agreed to by the State.
3 Time
Grantee must comply with all the time requirements described in this Agreement. In the performance of
matters funded pursuant to this Agreement, time is of the essence.
4 Consideration and Payment
4.1 Consideration. The State will make an award to Grantee under this Agreement as follows:
(1) GrantAward Grantee will be awarded the amount listed in paragraph 2.2 of this Agreement.
(2) Total Obligation. The total obligation of State to Grantee under this Agreement will not exceed the
amount listed in paragraph 2.2 of this Agreement.
4.2 Fiscal Requirements. Grantee shall report to the State as provided by paragraph 2.5
of this Agreement.
4.2.1 Financial Guidelines. Grantee's eligible expenditures under this Agreement must be specifically
incurred by Grantee or municipalities with an agreement with Grantee. Grantee will report on all
expenditures pertaining to this Agreement as provided in paragraph 2.5.
4.2.2 Records. Grantee must retain all financial records for a minimum of six (6) years after the date of
submission of the final financial report, or until completion of an audit which has commenced before
the expiration of this six-year period, or until any audit findings and/or recommendations from prior
audit(s) have been resolved between the Grantee and State, whichever is later, and comply with all
other retention and access requirements for records provided in the jurisdiction's retention schedules.
Grantee must cooperate with any audits related to the use of these funds conducted by the United
States Election Assistance Commission, Office of the Inspector General. In addition, Grantee must
maintain records sufficient to report expenditures made during the term of this Agreement upon
request of the State, including but not limited to a final report prior to the end of the term of the
Agreement
4.3 Payment Invoices. State will pay the grant amount to an account of Grantee within 30 days after the
effective date of this Agreement.
4.4 Conditions.
(1) Payments under this Agreement will be made from federal and state match funds appropriated by
Minnesota Laws, 2020, Chapter 77, section 4. Grantee is responsible for compliance with all
requirements imposed on these funds and accepts full financial responsibility for any requirements
imposed by Grantee's failure to comply with statutory or Agreement requirements.
(2) Grant funds must be used only to increase the funds that would, in the absence of this grant, be made
available for the federal and state purposes.
(3) Grantee assures that these grant funds are required for the federal and state purposes because Grantee
has insufficient funds to respond completely to the coronavirus pandemic.
(4) Grantee will return all funds unexpended for the federal and state purposes on November 16, 2020 to
OSS no later than December 31, 2020,
5 Satisfaction
All duties required and agreements or assurances provided by Grantee in this Agreement must be
performed to State's satisfaction, as determined at the sole discretion of State's Authorized Representative
and in accordance with all applicable federal, state, and local laws, ordinances, rules, and regulations.
6 Authorized Representative
State's Authorized Representative is David Maeda, Director of Elections, 180 State Office Building, 100
Rev. Dr. Martin Luther King Jr. Boulevard, Saint Paul, MN 55155-1299, 651-556-0612, or his successor,
and has the responsibility to monitor Grantee's performance and compliance with this Agreement.
Grantee's Authorized Representative is Andy Lokken, Director of Elections, 1590 Hwy 55, Suite 2300
Hastings, MN 55033 651-438-4314 Andyjqk-kccn@co.dakota.mn.us.
Grant payment will be made to:
Dakota County
Federal ID Number: 41-6005786
Grantee must be registered as a vendor in the SWIFT system, or must provide a W-9 form with this
executed agreement, in order for State to register Grantee in the SWIFT system.
If Grantee's Authorized Representative changes at any time before the funds provided for in this
Agreement are fully expended, Grantee must immediately notify the State.
Assignment Amendments, Waiver, and Agreement Complete
7.1 Assignment
Grantee shall neither assign nor transfer any rights or obligations under this Agreement without the
prior written consent of State, approved by the same parties who executed and approved this
Agreement, or their successors in office.
7.2 Amendments
Any amendments to this Agreement must be in writing and will not be effective until it has been
executed and approved by the same parties who executed and approved the original Agreement, or
their successors in office.
7.3 Waiver
If State fails to enforce any provision of this Agreement, that failure does not waive the provision or
State's right to enforce it.
7.4 Agreement Complete
This Agreement contains all negotiations and agreements between State and Grantee. No other
understanding regarding this Agreement, whether written or oral, may be used to bind either party.
8 Liability
Grantee must indemnify, save, and hold State, its agents, and employees harmless from any claims or
causes of action, including attorney's fees incurred by State, arising from the expenditures of the funds
provided by this Agreement by Grantee or Grantee's agents or employees.
Audits and Reports
Under Minnesota Statutes, § 16C.05, subd. 5, and 168.98, subd. 8, Grantee's books, records, documents,
and accounting procedures and practices relevant to this Agreement are subject to examination by the
State and/or the State Auditor or Legislative Auditor, as appropriate, for a minimum of six years from the
end of this Agreement, receipt and approval of all final reports, or the required period of time to satisfy all
state and program retention requirements, whichever is later. Grantee must cooperate with any audits
related to the use of these funds conducted by the United States Election Assistance Commission, Office
of the Inspector General. In addition, Grantee must report expenditures made during the term of this
Agreement upon request of the State, including but not limited to a final report prior to the end of the term
of the Agreement.
10 Government Data Practices
Grantee and State must comply with the Minnesota Government Data Practices Act, Minnesota Statutes,
Ch. 13, as it applies to all data provided by the State under this Agreement, and as it applies to all data
created, collected, received, stored, used, maintained, or disseminated by Grantee under this Agreement.
The civil remedies of Minnesota Statutes, § 13.08 apply to the release of the data referred to in this clause
by either Grantee or State.
If Grantee receives a request to release the data referred to in this Clause, Grantee must immediately
notify State. State will give Grantee instructions concerning the release of the data to the requesting party
before the data is released. Grantee's response to the request shall comply with applicable law.
11 Workers' Compensation
Grantee certifies that it is in compliance with Minnesota Statutes, § 176.181, subd. 2, pertaining to
workers' compensation insurance coverage. Grantee's employees and agents will not be considered State
employees. Any claims that may arise under the Minnesota Workers' Compensation Act on behalf of
these employees and any claims made by any third party as a consequence of any act or omission on the
part of these employees are in no way the State's obligation or responsibility.
12 Property and Casualty Insurance
Grantee is required to maintain a property and casualty insurance policy covering "All Risk" (or
equivalent) of direct physical loss or damage, including, but not limited to, the perils of transit (if
applicable), theft, and flood for devices or systems acquired using funds granted under the
Agreement. The insurance limit shall be equal to the replacement cost of any electronic roster systems
purchased with funds from this grant. Any deductible shall be the sole responsibility of Grantee.
13 Governing Law, Jurisdiction, and Venue
Minnesota law, without regard to its choice -of -law provisions, governs this Agreement. Venue for all
legal proceedings out of this Agreement, or its breach, must be in the appropriate state or federal court
with competent jurisdiction in Ramsey County, Minnesota,
14 Data Disclosure
Under Minnesota Statutes, § 270.66, and other applicable law, Grantee consents to disclosure of its social
security number, federal employer tax identification number, and/or Minnesota tax identification number,
already provided to the State, to federal and state tax agencies and state personnel involved in the
payment of state obligations. These identification numbers may be used in the enforcement of federal and
state tax laws which could result in action requiring Grantee to file state tax returns and pay delinquent
state tax liabilities, if any, or pay other state liabilities.
15 Termination.
State may immediately terminate this Agreement with or without cause, upon 30 days' written notice to
Grantee.
16 Grantee Procurement
Grantee certifies that it will use the procurement processes applicable in Grantee's jurisdiction in
purchasing items or equipment with funds subject to this Agreement.
t. ENCUMBRANCE VERIFICATION 3. STATE (O (•e of the Secretary of State)
huq
cZ
hat funds have been encumbered as `
P ta slonaes, §§ �1I.1 Ind 16C.05. By:(witha egerted authority)
SignedTitle: Director ofelections
Date: __ _ ��_'_S � � o Dflte: O 2
Agreement No.
2. GRANTEE (County)
Grantee certifies that the appropriate person(s)
have mculed the Agreement ton behalf of Grantee as
required by gpplicable r4ohdiyns afurdin96ws.
By: _ _, — I _
By,
Title:
Date:
Distribution: Grantee
State's Authorized Representative
DATE: September 1, 2020
TO: Mayor and City Council
FROM: Kelly McCarthy, Police Chief
Mark McNeill, City Administrator
SUBJECT: Space Needs Study
Comment:
Introduction:
The City Council is asked to approve the hiring of CNH Architects of Apple Valley to perform an analysis
of the City Hall building, to determine future space needs.
Background:
The current City Hall building was constructed in 1988. Since that time, the City has grown, and the
types of services that the City organization provides have grown as well. The current layout of the
Administrative and public areas of the building are inefficient, and should be examined for optimal use,
both for now and in the future.
However, the major deficiencies in the building are seen most profoundly in the Police Department.
Some minor remodeling took place about four years ago, but that was done primarily to address water
infiltration problems, and rearrange existing space to squeeze in a couple more offices. However, many
of the current, and longer term health and safety needs for the Police Department were not addressed. For
example, the squad room serves several, often conflicting purposes—it is simultaneously a break room,
training room, roll call room, and work area.
Contaminated gear must be cleaned in what is the third stall of the police garage area. Good security is
lacking for the police section of the building, as well as for the employees’ personal vehicles and the
squad cars. There is no clean, dry storage for most of the Police Department, and this lack of storage
lends to inefficiencies relating to inventory control. In addition, the City is in competition with other
metro area public safety departments for good police officer candidates, and the existing facility does not
allow the MHPD to compete equally with other prospective employers.
Overall, the heating, ventilation, and mechanical systems serving the entire building are now more than
30 years old. Those should be examined to determine if improvements should be made for greater
efficiencies.
Knowing these needs, funding was provided in the FY20 budget for an architectural firm to perform a
study of the existing building. Staff recently contacted CNH Architects, which is the firm that did a space
needs analysis of the Mendota Heights Fire Station building. The results of that study were used for
actions which ultimately led to the construction of the Fire Station remodeling and building addition.
CNH is the project architect for that work.
page 75
Budget Impact:
CNH has provided a proposal to perform the space analysis (attached). As shown, it proposes to do this
for $12,200, plus reimbursables like mileage and other expenses. Those amounts are within the budget
that was provided for the work ($15,000).
If approved by the City Council, staff would work with CNH to determine a workable schedule.
Once completed, the study will allow for the City Council and staff to have a better understanding of
financial needs through the master project budget which would be created. It would allow for the
planning of the next steps, should it be determined to proceed.
Recommendation:
In view of the current needs, we recommend that the City Council authorize CNH Architects to perform a
space needs analysis of City Hall.
Action Required:
If the Council concurs, it should, by motion, accept the proposal of CNH Architects dated August 21,
2020, to perform a space needs analysis of the Mendota Heights City Hall building.
Kelly McCarthy Mark McNeill
Police Chief City Administrator
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7300 West 147th St, Suite 504, Apple Valley, MN 55124 | 952.431.4433 | www.cnharch.com | Page 1
PROPOSAL FOR ARCHITECTURAL SERVICES
PROJECT:City of Mendota Heights
City Hall and Police Department Needs Analysis Study
CNH NO.:19067
CLIENT:City of Mendota Heights
August 21, 2020
Mr. Mark McNeill
City Administrator
City of Mendota Heights
1101 Victoria Curve
Mendota Heights, MN 55120
DESCRIPTION
This space needs analysis will evaluate the current space shortages, security upgrade options, health
improvements (COVID separations) and evaluate general building systems upgrades that might be
relevant for a building of this age.
PART I – PROGRAMMING AND BACKGROUND INFORMATION
Our services for Part I will be broken into the following tasks as needed to evaluate existing conditions
and space needs goals
SERVICES PROVIDED
Kickoff meeting: This meeting will further discuss the project goals and fine-tune the
following steps. The meeting will also discuss the gathering and distribution of existing
project related data.
Program Development: During this step we will review a project program to evaluate space
needs
o Evaluate existing space functions and sizes
o Review space and functions that either need additional space or can be revised to
make better use of the space provided
o Review functions that are not provided currently but are needed to best meet the
needs of the City
Develop Existing Conditions Drawings: This step includes gathering existing drawings for
the current facility and creating a background to be used in future steps.
o Obtain existing drawings of City Hall / PD from city
o Create 3D digital plans of the existing conditions from the plans provided.
o Review digital plans to incorporate any significant changes not shown on the original
drawings provided.
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7300 West 147th St, Suite 504, Apple Valley, MN 55124 | 952.431.4433 | www.cnharch.com | Page 2
o Meeting with Planning department representatives to review planning ordinance
requirements as well as potential variance or PD submittal goals to maximize
buildable site
o Meeting with Building and Inspections for review of project expectations particularly
focusing on program or site impacts.
Review Mechanical and Electrical Systems Existing: This step includes providing a high
level review of types of systems used in the facility and approximate life-expectancy of each
major system.
PART II – CONCEPT PLAN DEVELOPMENT
Our services for Part II will include rough concept plans of the potential remodeling or additions needed
to address the information gathered in Part I.
SERVICES PROVIDED
Develop multiple floor plan and site plan options showing space diagrams and flows
investigating different approaches to meet the identified space needs.
Review plan options with City Staff gathering input on each
Revise site plan and floor plans based on staff feedback
Discuss MEP and general building system upgrades that would be recommended as part
of a remodel and addition process
PART III – COST ESTIMATE AND FINAL REPORT
Our services for Part III will include providing general square foot based cost estimates to determine the
general cost range of the addition and remodeling elements identified in Part II. This part will also
include putting all study elements into a written report for presentation to City Officials.
SERVICES PROVIDED
Analyze areas of addition, heavy remodeling and light remodeling assigning anticipated
construction budgets for each.
Develop a preliminary master budget including Owner soft costs associated with the
identified facility improvements.
Review budget and preliminary report documents with staff
Provide final written report of space needs analysis study.
Present report results to City Officials
SERVICES NOT PROVIDED
The following work scopes are not included in this study
Landscape design
Creative Placemaking design
Exterior image development
Detailed floor plans
Mechanical/Electrical design
Structural design
Civil design
Detailed cost estimating
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7300 West 147th St, Suite 504, Apple Valley, MN 55124 | 952.431.4433 | www.cnharch.com | Page 3
FEE
We propose the services indicated above as an hourly fee not to exceed $12,200, plus reimbursables
expenses for mileage and printing.
INFORMATION TO BE PROVIDED TO US
In a timely manner:
Original building drawings
Information on maintenance history and MEP system operations
SCHEDULE
A project schedule has not been determined at this time. We will work with you to determine a schedule
when the project is ready to proceed.
We appreciate your using us for this work and look forward to proceeding with the project.
Sincerely,
Quinn Hutson, AIA
Principal
CNH Architects, Inc
City of Mendota Heights .
________________________________
Name
________________________________
Signature
________________________________
Date
page 79
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Request for City Council Action
MEETING DATE: September 1, 2020
TO: Mayor Garlock and City Council
FROM: Tim Benetti, Community Development Director
Mark McNeill, City Administrator
SUBJECT: Professional Services Proposal for Consulting Planning Services
COMMENT:
INTRODUCTION
The Council is asked to consider a proposal from Swanson-Haskamp Consulting, LLC, to provide
assistance to the City to complete the City’s update of the 2040 Comprehensive Plan.
BACKGROUND
On October 4, 2016, the City Council approved a professional services contract with Stantec for planning
services related to the decennial 2040 Comprehensive Plan. Work began on the plan in mid-2017, and the
draft plan was completed and submitted for adjacent jurisdictional review around June 2019.
After the six-month review period expired, the draft plan was submitted to the Metropolitan Council for
official review and consideration. However, it was later returned with an “Incomplete for Review” letter,
dated January 17, 2020.
Since the contracted funds with Stantec had all been expended, city staff attempted to make the final
corrections, additions and changes in-house. However, it has not been able to devote the needed time to
working on the Plan, due to the unexpected heavy work load, pressing development and land use
applications and other responsibilities the past six months. This was further complicated by the COVID-
19 pandemic situation.
At the Council’s preliminary FY 2020 budget workshop meetings, city staff reported that it had reached out
for possible assistance to a trusted professional planning colleague, Jennifer Haskamp, owner of Swanson-
Haskamp Consulting, LLC of St. Paul. Ms. Haskamp agreed to meet with city staff. She examined our
Met Council incomplete letter, and reviewed the draft plan up to this point. She determined there was still
a considerable amount of work left to be done to meet the submittal requirements of the Met Council.
Ms. Haskamp was asked to submit a consulting services proposal, whereby she will assist city staff in
completing and ensuring the 2040 Comp Plan is submitted and completed by the end of this year. This
proposal is attached.
BUDGET IMPACT
The Swanson-Haskamp proposal estimates a price range of between $15,000 and $20,000 to complete the
work, based on hourly work, and which includes expenses. There is currently $10,000 in the 2020
Community Development Budget for consulting planner services. After reviewing this with the Finance
Director, it is recommended to take any amount which exceeds the final bill from the General Fund balance,
should that be necessary.
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RECOMMENDATION
Because no rezoning or re-guiding can take place until the 2040 Comprehensive Plan is approved by the
Metropolitan Council, it is important to get the items listed in the “Incomplete for Review” letter addressed
as soon as possible. The City did receive valuable assistance from members of the Mendota Heights
community during the initial update application consideration, but the Metropolitan Council found the final
product incomplete.
The proposed consultant has had success in getting several smaller cities’ Comp Plan updates approved.
For this reason, we recommend the hire of Swanson-Haskamp to assist the City to bring its 2040
Comprehensive Plan to completion.
ACTION REQUIRED
If the Council concurs, the City Council should pass a motion approving the Professional Services Contract
with Swanson Haskamp Consulting LLC, for Comprehensive Planning Services.
This matter requires a simple majority vote.
page 82
August 25, 2020
City of Mendota Heights
Attn: Mr. Tim Benetti
Community Development Director
1101 Victoria Curve
Mendota Heights, MN 55118
Transmitted via email:
timb@mendota-heights.com
RE: Proposal for 2040 Comprehensive Plan Update Completion and Submission
Swanson Haskamp Consulting, LLC
Dear Mr. Benetti,
Thank you for reaching out to me to discuss your needs regarding the 2040 Comprehensive Plan Update
(2040 Plan) for the City of Mendota Heights. SHC worked on several 2040 Plans in the metropolitan area
and I am confident that we can help the City complete its plan efficiently and effectively. Our team
understands the importance of creating a comprehensive plan that reflects the policy direction of the
community, that meets the Metropolitan Council’s checklist requirements and that is easy to use and
navigate. We will work collaboratively with you to ensure that the final 2040 Plan not only meets the
Metropolitan Council’s requirements, but also reflects the policy direction of the City for this planning
period.
We understand that Mendota Heights has prepared a draft 2040 Plan and that it was submitted to the
Metropolitan Council and associated agencies for review (including MRRCA and LSWMP review by the
watershed district). The Metropolitan Council issued an incomplete letter to the City (which is typical, in fact
every 2040 Plan we worked on this planning period received a letter) that identified several outstanding items
that are required to be addressed prior to resubmittal and eventual adoption. SHC has reviewed the
incomplete letters and concluded that most of the information requested can be handled administratively,
with only a few policy-related items identified within the incomplete letter. To that end we will work with the
city staff to determine the best path forward to address the policy related items and will keep the City’s policy
makers informed throughout the remaining steps of this process.
page 83
Time is of the essence, particularly since the City continues to experience ongoing daily inquiries regarding its
land use and zoning. We understand the importance of completing this planning process expeditiously and
we believe that it is reasonable to have fully revised plan within 60-days of contract execution. Our goal is to
submit the revised 2040 Plan to the Metropolitan Council by the end of the year, if not sooner.
Attached to this proposal please find our standard fee schedule including hourly billing rates and expense
reimbursements. We propose an hourly contract to complete the work and estimate $15,000 - $20,000
including expenses to finalize the plan. The estimate includes a second round of edits and modifications after
the Metropolitan Council reviews the revised 2040 Plan, which based on our experience with other clients, is
likely.
If you have any additional questions regarding this proposal, please contact me at the number or email below.
If needed, I am happy to attend your regular September 1, 2020 City Council meeting to introduce our firm
and answer any questions. We are excited for this opportunity and look forward to helping the City of
Mendota Heights finish this important planning document.
Sincerely,
Jennifer Haskamp, AICP
Owner & Principal Planner
Swanson Haskamp Consulting, LLC
jhaskamp@swansonhaskamp.com
(c) 651.341.4193
Attachments:
Attachment 1: 2020 Fee Schedule
page 84
Attachment 1: Fee Schedule
(2020)
Service Rate
Principal, Planner $150/Hour
Sr. Planner/ Sr. Landscape Architect $125/Hour
Planner $100/Hour
Document Preparation/Layout/Production
GIS Mapping
Document Layout
Graphics
$90/Hour
Mileage rate (Standard IRS rate)$0.575/mile
Printing and Mailing Services Actual Expenses
page 85
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CITY OF MENDOTA HEIGHTS
TREASURER'S REPORT JULY 2020
BALANCE COLLATERAL
Deerwood Bank
Checking Account .10%$1,229,627.90
Collateral - Bonds $1,200,000.00
Gov't. Guar.$250,000.00
Investments Cost PV
Saving Cert 7/27/2020 @ 1.50% Cherokee $14,064.33 $14,064.33
Branch Banking & Trust 1.60% 11/12/20 $245,000.00 $246,068.20
UBS Bank 3.10% 11/23/20 $245,000.00 $247,312.80
Premier Bank 3.00% 12/14/20 $245,000.00 $247,650.90
Safra National Bank 1.85% 1/7/21 $245,000.00 $246,906.10
BMW Bank 1.90% 2/16/21 $200,000.00 $201,954.00
Mizuho Bank 1.60% 2/18/21 $131,000.00 $132,097.78
Banc of California 0.75% 3/18/21 $245,000.00 $245,997.15
Texas Capital Bank 0.85% 3/19/21 $245,000.00 $246,158.85
New York Community Bank 1.80% 3/26/21 $245,000.00 $247,729.30
Valley National Bank 1.25% 4/8/21 $153,000.00 $154,207.17
Cathay Bank 1.10% 4/16/21 $120,000.00 $120,846.00
Washington Trust Western 1.15% 4/16/21 $245,000.00 $246,815.45
Sallie Mae Bank 2.30% 6/21/21 $132,000.00 $134,572.68
Bank of India NY 0.20% 6/23/21 $248,000.00 $248,166.16
Plains Capital Bank 0.20% 6/25/21 $245,000.00 $245,164.15
State Bank of India NY 0.20% 7/6/21 $245,000.00 $245,169.05
CIT Bank 1.90% 8/23/21 $245,000.00 $249,603.55
Morgan Stanley Private Bank 1.80% 9/13/21 $245,000.00 $249,574.15
Goldman Sachs Bank 1.85% 9/20/21 $145,000.00 $147,834.75
Enerbank 1.90% 9/27/21 $245,000.00 $250,000.45
Sallie Mae Bank 1.70% 11/15/21 $100,000.00 $102,018.00
Morgan Stanley Bank 1.70% 12/27/21 $245,000.00 $250,370.40
Wells Fargo Bank 1.80% 1/18/22 $125,000.00 $128,021.25
Ally Bank 1.70% 1/24/22 $245,000.00 $250,652.15
Axos Bank 1.55% 3/28/22 $245,000.00 $250,654.60
Comenity Bank 2.25% 07/18/22 $200,000.00 $206,470.00
Capital One Bank 2.05% 8/15/22 $245,000.00 $254,351.65
Capital One 2.05% 8/15/22 $245,000.00 $254,351.65
BMO Harris Bank 0.25% 01/29/24 $245,000.00 $245,093.10
HSBC Bank USA 2.05%11/26/24 $245,000.00 $246,499.40
JP Morgan Chase Bank 0.50% 7/30/25 $245,000.00 $245,404.25
Fidelity Institutional Government Portfolio (Piper)$6,773,810.47 $6,773,810.47
Gov't. Securities Fund 28% Sold 6/4 $433,187.00
MMkt Fd (WF)$145,149.53
TOTAL FUNDS AVAILABLE 7/31/2020 $15,294,839.23
Funds Available 1/1/2020 $17,090,918.68
Rates Money Market
July Bank 0.03%
5 Yr. Tr. 0.21%
10 Yr. Tr. 0.55%
page 87
TD Ameritrade Account Fire Station Bond Proceeds)
Cash $477.85
Federal Government Obligation Mutual Fund $2,032,254.52
Total for TD Ameritrade Account $2,032,732.37
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page 100
TO: Mayor and City Council
FROM: Mark McNeill, City Administrator
DATE: September 1, 2020
SUBJECT: Renewal of Comcast Cable Television Franchise Ordinance
COMMENT:
Introduction:
On September 15th, the Council will be asked to consider adopting the Comcast Cable Television
Franchise Ordinance (“Ordinance”) as recommended by the Northern Dakota County Cable
Communications Commission (“Commission”), and also to authorize the NDC4 Commission to
execute the mutually agreed-upon Side Letter with Comcast. The action will provide for a ten
year renewal of the franchise.
However, because of the amount of other business which is anticipated to be on the September
15th agenda, on September 1st the City Council will only hear the presentation by the Attorney for
NDC4 for the proposed renewal. Because the franchise renewal will be by Ordinance, before the
City Council can adopt an ordinance, by law the proposed change must be posted for a minimum
of ten days. In order to allow for that posting, the ordinance change adopting the franchise renewal
cannot be accommodated on the September 1st meeting.
Background:
The current cable television franchise was adopted in 2000 and initially expired in 2015. In
accordance with federal law, the franchise renewal process began in 2012. For a number of reasons
including corporate mergers, application for a competing franchise by CenturyLink, and
marketplace uncertainty caused by a new FCC Order, the renewal process was delayed several
times, and multiple extensions of the current cable television franchise term were granted by the
City.
The Commission is a Joint Powers Cooperative comprised of seven (7) Member Cities (Inver
Grove Heights, Lilydale, Mendota, Mendota Heights, South St. Paul, Sunfish Lake and West St.
Paul, Minnesota). Mendota Heights has two NDC4 Commission Representatives, City Councilor
Joel Paper and Citizen Representative Mickey Kieffer,
page 101
The Commission is authorized to negotiate, recommend, enforce, and administer the cable
television franchise on behalf of the Member Cities, however, each individual Member City adopts
a cable television franchise as a City Ordinance according to its own ordinance procedures
In July o f 2020 the Commission and Comcast came to mutual agreement on terms and conditions
of a renewal franchise. On August 5, 2020, the Commission passed a resolution recommending
adoption of the renewal franchise with strong support of all commissioners in attendance. Comcast
is in full support of the recommended ten-year renewal franchise and has agreed to execute the
franchise as soon as all seven Member Cities have adopted the Ordinance.
On August 19th Member Cities management staff, IT staff, and City Attorneys attended a briefing
presented by the Commission’s Executive Director, Jodie Miller, the Commission’s outside legal
counsel, Brian Grogan of Moss & Barnett, and LMCIT-assigned litigation attorneys, John Baker
and Katherine Swenson of Greene Espel. A summary of the presentation is included in the meeting
materials.
The ten-year renewal franchise provides the continuation of the 5% of gross revenues franchise
fee, and improves PEG fee funding from the per subscriber, per month flat fee to a PEG fee in the
amount of 2.25% of gross revenues. The renewal franchise maintains strong customer service and
rights-of-way protections, and enforcement tools including a bond and a letter of credit security
fund. Resources for local PEG programming including channels, technical support, and funding
for capital purchases are retained, and High Definition (HD) channels are available within 90 days
of enactment.
Most importantly, the Commission and Comcast found a mutual solution to continuing many of
the non-cash requirements in the current franchise. Important technical support items such as
transmission of live signals from city halls, connections with other metro area stations to share
programming, and cable TV service at city halls and the Commission’s office, will continue
without the threat of a future deduction from franchise fee payments as allowed by the 2019 FCC
“621 Order.” The “winding down” of the fiber I-Net that was used by cities, school districts, and
other institutional users under the current franchise, is covered within the attached side letter.
Reference Materials:
1. Resolution approved by the NDC4 Commission at its August 5, 2020, meeting;
2. PowerPoint presentation provided by Brian Grogan, the Commission’s outside legal
counsel;
3. Recommended Ordinance (559) to be considered by the City at the September 15, 2020
City Council meeting;
4. Mutually agreed-upon side letter to be executed by the Commission and Comcast (“Side
Letter”);
Budget Impact:
The Commission will continue to receive the franchise fee and PEG fee revenues from Comcast
on behalf of the Member Cities. Under the Joint Powers Agreement, the Commission remits an
annual payment of 25% of the franchise fees to each Member City in its proportionate share of the
total subscriber base. The Commission and Town Square Television utilize 75% of the franchise
fees and the PEG fee revenues to provide PEG programming and franchise administration to the
community on behalf of the Member Cities.
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Cable television subscribership has gradually declined over the past few years with the changes in
the marketplace and video viewing trends. This ten-year renewal franchise will provide some
certainty and a stabilization of the PEG fee capital funding as Town Square Television and the
Commission work on strategic planning for sustainability, assuming that the traditional cable video
market transitions to an all-internet industry.
Recommendation:
The only action recommended to take place on September 1st is to hear the presentation by
Attorney Grogan, and to ask questions.
At the following meeting, the Council will be asked to adopt what will be Ordinance 559, which
will authorize approval of the franchise Renewal, and then also adopt the side letter.
Action Required:
If the City Council should hear the presentation, and ask questions so that the Ordinance adoption
can be made at the September 15th meeting.
Mark McNeill
City Administrator
page 103
Draft – Informal Renewal Only
CITY OF , MINNESOTA
ORDINANCE GRANTING A CABLE TELEVISION FRANCHISE
TO
COMCAST OF ST. PAUL, INC.
July 30, 2020
page 104
TABLE OF CONTENTS
SECTION 1 DEFINITIONS .........................................................................................................1
SECTION 2 FRANCHISE ............................................................................................................6
SECTION 3 OPERATION IN STREETS AND RIGHTS-OF-WAY .......................................9
SECTION 4 REMOVAL OR ABANDONMENT OF SYSTEM ............................................13
SECTION 5 SYSTEM DESIGN AND CAPACITY .................................................................15
SECTION 6 PROGRAMMING AND SERVICES ..................................................................17
SECTION 7 LOCAL PEG PROGRAMMING .........................................................................18
SECTION 8 REGULATORY PROVISIONS ...........................................................................24
SECTION 9 BOND ......................................................................................................................25
SECTION 10 SECURITY FUND ...............................................................................................26
SECTION 11 VIOLATION PROCEDURE ..............................................................................28
SECTION 12 FORECLOSURE AND RECEIVERSHIP ........................................................30
SECTION 13 REPORTING REQUIREMENTS .....................................................................31
SECTION 14 CUSTOMER SERVICE POLICIES..................................................................32
SECTION 15 SUBSCRIBER PRACTICES ..............................................................................37
SECTION 16 COMPENSATION AND FINANCIAL PROVISIONS ...................................38
SECTION 17 MISCELLANEOUS PROVISIONS ..................................................................41
EXHIBIT A SD/HD PEG CHANNEL NUMBERS ............................................................. A-1
EXHIBIT B DELIVERY OF LIVE AND RECORDED PROGRAMMING TO AND
FROM BELOW LISTED ENTITIES ON C-RAN .........................................B-1
EXHIBIT C PEG MONITORING AND TRANSPORT .................................................... C-1
EXHIBIT D FRANCHISE FEE PAYMENT WORKSHEET ........................................... D-1
EXHIBIT E MONTHLY SUBSCRIBER DATA REPORT ................................................E-1
page 105
ORDINANCE NO.
AN ORDINANCE RENEWING THE GRANT OF A FRANCHISE TO COMCAST OF ST.
PAUL, INC. TO OPERATE AND MAINTAIN A CABLE SYSTEM IN THE CITY OF
, MINNESOTA; SETTING FORTH CONDITIONS ACCOMPANYING
THE GRANT OF A FRANCHISE; PROVIDING FOR CITY REGULATION AND
ADMINISTRATION OF THE CABLE SYSTEM; TERMINATING THE PRIOR FRANCHISE
FINDINGS
1. The City of [ ], Minnesota (“City”), pursuant to applicable federal
and state law, is authorized to grant one (1) or more nonexclusive cable television
franchises to construct, operate, maintain and reconstruct cable television systems within
the City limits.
2. Comcast of St. Paul, Inc., a Delaware corporation (“Grantee”) has operated a Cable System
in the City, under a cable television franchise granted pursuant to a Cable Television
Franchise Ordinance approved on or about April 1, 2000.
3. Negotiations between Grantee and the City have been completed and the franchise renewal
process followed in accordance with Minnesota Statutes Chapter 238 and the Cable Act
(47 U.S.C. §546).
4. The City has determined that it is in the best interest of the City and its residents to renew
the cable television franchise with Grantee.
5. The Franchise granted to Grantee by the City is nonexclusive and complies with existing
applicable Minnesota Statutes, federal laws and regulations.
6. The City has exercised its authority under Minnesota law to enter into a Joint and
Cooperative Agreement, and an Amended Joint and Cooperative Agreement, with other
cities authorized to grant cable communications franchises, and has delegated authority to
the Northern Dakota County Cable Communications Commission to make
recommendations to the City regarding this Franchise and to be responsible for the ongoing
administration and enforcement of this Franchise as herein provided.
NOW, THEREFORE, THE CITY OF [ ] DOES ORDAIN that a
franchise is hereby granted to Comcast of St. Paul, Inc., to operate and maintain a Cable System
in the City upon the following terms and conditions:
SECTION 1 DEFINITIONS
For the purpose of this Franchise, the following, terms, phrases, words, derivations and their
derivations shall have the meanings given herein. When not inconsistent with the context, words
used in the present tense include the future tense, words in the plural number include the singular
number and words in the singular number include the plural number. The word “shall” is always
page 106
mandatory and not merely directory. The word “may” is directory and discretionary and not
mandatory.
1.1 “Affiliate” means any Person controlling, controlled by or under common control of
Grantee.
1.2 “Applicable Law(s)” means any law, statute, charter, ordinance, rule, regulation, code,
license, certificate, franchise, permit, writ, ruling, award, executive order, directive, requirem ent,
injunction (whether temporary, preliminary or permanent), judgment, decree or other order issued,
executed, entered or deemed applicable by any governmental authority of competent jurisdiction.
1.3 “Basic Cable Service” means any service tier which includes the lawful retransmission of
local television broadcast, as set forth in Applicable Law, currently 47 U.S.C. § 522(3).
1.4 “Cable Act” means the Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521 et
seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as
further amended by the Telecommunications Act of 1996, as further amended from time to time.
1.5 “Cable Service” means (a) the one-way transmission to Subscribers of (i) Video
Programming or (ii) other programming service, and b) Subscriber interaction, if any, which is
required for the selection or use of such Video Programming or other programming service, as set
forth in Applicable Law, currently 47 U.S.C. § 522(6). For the purposes of this definition, “other
programming service” means information that a cable operator makes available to all Subscribers
generally.
1.6 “Cable System” or “System” means a facility, consisting of a set of closed transmission
paths and associated signal generation, reception, and control equipment that is designed to provide
Cable Service which includes Video Programming and which is provided to multiple Subscribers
within a community, but such term does not include:
(a) a facility that serves only to retransmit the television signals of one (1) or more
television broadcast stations;
(b) a facility that serves Subscribers without using any Streets;
(c) a facility of a common carrier which is subject, in whole or in part, to the provisions
of 47 U.S.C. § 201 et seq., except that such facility shall be considered a Cable System
(other than for purposes of 47 U.S.C. § 541(c)) to the extent such facility is used in the
transmission of Video Programming directly to Subscribers, unless the extent of such use
is solely to provide interactive on-demand services;
(d) an open video system that complies with section 47 U.S.C. § 573; or
(e) any facilities of any electric utility used solely for operating its electric utility
system.
Unless otherwise specified, it shall in this document refer to the Cable System constructed and
operated in the City under this Franchise.
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1.7 “Channel” means a portion of the electromagnetic frequency spectrum which is used in a
Cable System and which is capable of delivering a television channel as defined by the FCC by
regulation, as set forth in Applicable Law, currently 47 U.S.C. § 522(4).
1.8 “City” means the City of [ ], a municipal corporation in the State of
Minnesota, acting by and through its City Council, or its lawfully appointed designee.
1.9 “City Code” means the Municipal Code of the City of [ ],
Minnesota, as may be amended from time to time.
1.10 “Commission” means the Northern Dakota County Cable Communications Commission
or its successors or delegations, including representatives of the Member Cities as may exist
pursuant to a then valid and existing Joint and Cooperative Agreement and Amended Joint and
Cooperative Agreement between Member Cities.
1.11 “Converter” means an electronic device, including Digital Transport Adapters, which
converts signals to a frequency not susceptible to interference within the television receiver of a
Subscriber, and by an appropriate Channel selector also permits a Subscriber to view all Cable
Service signals.
1.12 “City Council” means the governing body of the City of , Minnesota.
1.13 “Day” means a calendar day, unless otherwise specified.
1.14 “Drop” means the cable that connects the Subscriber terminal to the nearest feeder cable
of the cable.
1.15 “Effective Date” means the date adopted by the last Member City Council, or the date
executed by both parties in accordance with Section 17.6 herein, whichever is later.
1.16 “FCC” means the Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
1.17 “Franchise” means the right granted by this Franchise Ordinance and the regulatory and
contractual relationship established hereby.
1.18 “Franchise Area” means the entire geographic area within the City as it is now constituted
or may in the future be constituted.
1.19 “Franchise Fee” means the fee assessed by the City to Grantee, in consideration of
Grantee’s right to operate the Cable System within the City’s Streets, determined in amount as a
percentage of Grantee’s Gross Revenues and limited to the maximum percentage allowed for such
assessment by federal law. The term Franchise Fee does not include the exceptions noted in 47
U.S.C. §542(g)(2)(A-E).
1.20 “GAAP” means generally accepted accounting principles as promulgated and defined by
the Financial Accounting Standards Board (“FASB”), Emerging Issues Task Force (“EITF”)
and/or the U.S. Securities and Exchange Commission (“SEC”).
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1.21 “Gross Revenues” means, and shall be construed broadly to include all revenues derived
directly or indirectly by Grantee and/or an Affiliated Entity that is the cable operator of the Cable
System, from the operation of Grantee’s Cable S ystem to provide Cable Services within the City.
Gross Revenues include, by way of illustration and not limitation:
(a) monthly fees for Cable Services, regardless of whether such Cable Services are
provided to residential or commercial customers, including revenues derived from the
provision of all Cable Services (including but not limited to pay or premium Cable
Services, pay-per-view, pay-per-event, and video-on-demand Cable Services);
(b) fees paid to Grantee for Channels designated for commercial/leased access use and
shall be allocated on a pro rata basis using total Cable Service Subscribers within the City;
(c) Converter, digital video recorder, remote control, and other Cable Service
equipment rentals, leases, or sales;
(d) installation, disconnection, reconnection, change-in service, “snow-bird” fees;
(e) Advertising Revenues as defined herein;
(f) late fees, convenience fees, and administrative fees;
(g) other service fees such as HD fees, convenience fees, broadcast fees, regional sports
fees, home tech support fees, bill payment fees for in-person or phone payments, additional
outlet fees, and related charges relating to the provisions of Cable Service;
(h) revenues from program guides and electronic guides;
(i) Franchise Fees;
(j) FCC regulatory fees;
(k) except as provided in subsection (ii) below, any fee, tax or other charge assessed
against Grantee by municipality, which Grantee chooses to pass through and collect from
its Subscribers; and
(l) commissions from home shopping channels and other Cable Service revenue
sharing arrangements, which shall be allocated on a pro rata basis using total Cable Service
Subscribers within the City.
(i) “Advertising Revenues” shall mean revenues derived from sales of
advertising that are made available to Grantee’s Cable System Subscribers within
the City and shall be allocated on a pro rata basis using total Cable Service
Subscribers reached by the advertising. Additionally, Grantee agrees that Gross
Revenues subject to Franchise Fees shall include all commissions, representative
fees, Affiliated Entity fees, or rebates paid to National Cable Communications and
Comcast Spotlight or their successors associated with sales of advertising on the
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Cable System within the City allocated according to this paragraph using total
Cable Service Subscribers reached by the advertising.
(ii) “Gross Revenues” shall not include:
1. actual bad debt write-offs, except any portion which is subsequently
collected, which shall be allocated on a pro rata basis using Cable Services
revenue as a percentage of total Subscriber revenues within the City;
2. Public, Education and Government (PEG) Fees; and
3. unaffiliated third-party advertising sales agency fees which are
reflected as a deduction from revenues.
Grantee shall allocate fees and revenues generated from bundled packages and services to
cable revenues pro rata based on current published rate card for the packaged services
delivered on a stand-alone basis as follows:
(i) To the extent revenues are received by Grantee for the provision of a
discounted bundle of services which includes Cable Services and non-Cable
Services, Grantee shall calculate revenues to be included in Gross Revenues using
a GAAP methodology that allocates revenue, on a pro rata basis when comparing
the bundled service price and its components to the sum of the published rate card,
except as required by specific federal, state or local law (for example, it is expressly
understood that equipment may be subject to inclusion in the bundled price at full
rate card value). The City reserves its right to review and to challenge Grantee’s
calculations.
(ii) Grantee reserves the right to change the allocation methodologies set forth
in this section in order to meet the standards required by governing accounting
principles as promulgated and defined by the Financial Accounting Standards
Board (“FASB”), Emerging Issues Task Force (“EITF”) and/or the U.S. Securities
and Exchange Commission (“SEC”). Grantee will explain and document the
required changes to the City upon request or as part of any audit or review of
Franchise Fee payments, and any such changes shall be subject to the next
subsection below.
(iii) Resolution of any disputes over the classification of revenue should first be
attempted by agreement of the parties, but should no resolution be reached, the
parties agree that reference shall be made to GAAP as promulgated and defined by
the Financial Accounting Standards Board (“FASB”), Emerging Issues Task Force
(“EITF”) and/or the U.S. Securities and Exchange Commission (“SEC”).
Notwithstanding the foregoing, the City reserves its right to challenge Grantee’s
calculation of Gross Revenues, including the interpretation of GAAP as
promulgated and defined by the FASB, EITF and/or the SEC.
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1.22 “Member Cities” means those cities that are parties to a then valid and existing joint powers
agreement which, at the time of granting this Franchise, include Inver Grove Heights, Lilydale,
Mendota, Mendota Heights, South St. Paul, Sunfish Lake, and West St. Paul.
1.23 “Normal Business Hours” means those hours during which most similar businesses in the
City are open to serve customers. In all cases, “Normal Business Hours” must include some
evening hours, at least one (1) night per week and/or some weekend hours.
1.24 “Normal Operating Conditions” means those Service conditions which are within the
control of Grantee. Those conditions which are not within the control of Grantee include, but are
not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and
severe or unusual weather conditions. Those conditions which are ordinarily within the control of
Grantee include, but are not limited to, special promotions, pay-per-view events, rate increases,
regular peak or seasonal demand periods, and maintenance or upgrade of the Cable System.
1.25 “PEG” means public, education and government.
1.26 “Person” means any natural person and all domestic and foreign corporations, closely-held
corporations, associations, syndicates, joint stock corporations, partnerships of every kind, clubs,
businesses, common law trusts, societies and/or any other legal entity.
1.27 “Street” means the area on, below, or above a public roadway, highway, street, cartway,
bicycle lane, and public sidewalk in which the City has an interest, including other dedicated
rights-of-way for travel purposes and utility easements. A Street does not include the airwaves
above a public right-of-way with regard to cellular or other nonwire telecommunications or
broadcast service.
1.28 “Subscriber” means a Person who lawfully receives Cable Service.
1.29 “Video Programming” means programming provided by, or generally considered
comparable to programming provided by, a television broadcast station.
1.30 “Wireline MVPD” means any entity, including the City, that utilizes the Streets to install
cable or fiber and is engaged in the business of making available for purchase, by Subscribers,
multiple Channels of Video Programming in the City, which could also include the City. For
purposes of this Franchise, the term “Wireline MVPD” shall not be limited to entities defi ned by
the FCC as “multichannel video programming distributors” and shall include entities that provide
multiple Channels of Video Programming via open video systems, as defined by the FCC, but it
is the intent of the Grantee and the City that the term Wireline MVPD shall not include small cell
providers, unless the City has the legal authority under Applicable Law to regulate or to impose
cable franchise obligations upon such small cell providers.
SECTION 2 FRANCHISE
2.1 Grant of Franchise. The City hereby authorizes Grantee to occupy or use the City’s
Streets subject to: 1) the provisions of this non-exclusive Franchise to provide Cable Service within
the City; and 2) all applicable provisions of the City Code. Unless this Franchise has expired
pursuant to Section 2.8 herein or this Franchise is otherwise terminated pursuant to Section 11.2
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herein, this Franchise shall constitute both a right and an obligation to provide Cable Services as
required by the provisions of this Franchise. Nothing in this Franchise shall be construed to
prohibit Grantee from: (1) providing services other than Cable Services to the extent not prohibited
by Applicable Law; or (2) challenging any exercise of the City’s legislative or regulatory authority
in an appropriate forum. The City hereby reserves all of its rights to regulate such other services
to the extent not prohibited by Applicable Law and no provision herein shall be construed to limit
or give up any right to regulate.
2.2 Reservation of Authority. The Grantee specifically agrees to comply with the lawful
provisions of the City Code and applicable regulations of the City. Subject to the police power
exception below, in the event of a conflict between A) the lawful provisions of the City Code or
applicable regulations of the City and B) this Franchise, the express provisions of this Franchise
shall govern. Subject to express federal and state preemption, the material terms and conditions
contained in this Franchise may not be unilaterally altered by the City through subsequent
amendments to the City Code, ordinances or any regulation of City, except in the lawful exercise
of City’s police power. Grantee acknowledges that the City may modify its regulatory policies by
lawful exercise of the City’s police powers throughout the term of this Franchise. Grantee agrees
to comply with such lawful modifications to the City Code; however, Grantee reserves all rights it
may have to challenge such modifications to the City Code whether arising in contract or at law.
The City reserves all of its rights and defenses to such challenges whether arising in contract or at
law. Nothing in this Franchise shall (A) abrogate the right of the City to perform any public works
or public improvements of any description, (B) be construed as a waiver of any codes or ordinances
of general applicability promulgated by the City, or (C) be construed as a waiver or release of the
rights of the City in and to the Streets.
2.3 Franchise Term. The term of this Franchise shall be ten (10) years from the Effective
Date, unless renewed, amended or extended by mutual written consent in accordance with Section
17.7 or terminated sooner in accordance with this Franchise.
2.4 Franchise Area. This Franchise is granted for the Franchise Area defined herein. Grantee
shall extend its Cable System to provide Service to any residential unit in the City in accordance
with Section 6.7 herein.
2.5 Franchise Nonexclusive. The Franchise granted herein shall be nonexclusive. The City
specifically reserves the right to grant, at any time, such additional franchises for a Cable System
as it deems appropriate provided, however, such additional grants shall not operate to materially
modify, revoke, or terminate any rights previously granted to Grantee other than as described in
Section 17.18. The grant of any additional franchise shall not of itself be deemed to constitute a
modification, revocation, or termination of rights previously granted to Grantee. Any additional
cable franchise grants shall comply with Minn. Stat. § 238.08 and any other applicable federal
level playing field requirements.
2.6 Periodic Public Review of Franchise. The City may conduct a public review of the
Franchise. The purpose of any such review shall be to ensure, with the benefit of full opportunity
for public comment, that the Grantee continues to effectively serve the public in accordance with
Applicable Law, and considering any new cable technology, Grantee’s performance with the
requirements of this Franchise, local regulatory environment, community needs and interests, and
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other such factors. So long as Grantee receives reasonable notice, Grantee shall cooperate in good
faith. The review shall not operate to modify or change any provision of this Franchise without
mutual written consent in accordance with Section 17.7 of this Franchise. The City and Grantee
shall each be responsible for their own costs regarding the conduct of, or cooperation with, any
such periodic review.
2.7 Transfer of Ownership.
(a) A sale or transfer of this Franchise, including a sale or transfer by means of a
“fundamental corporate change,” as defined in Minn. Stat. § 238.083 subd. 1, or the sale
or transfer of stock in Grantee so as to create a new “controlling interest,” as defined in
Minn. Stat. § 238.083 subd. 6, in the Cable System, shall require the written approval of
the City. Grantee shall submit a written request to the City for the City’s approval,
provided, however, that said approval shall not be required where Grantee grants a security
interest in its Franchise and assets to secure an indebtedness. The written approval of the
City shall not be required under this section for internal corporate reorganizations involving
Affiliates or pledges of the Franchise as collateral or security for any loan or other debt
instrument.
(b) City shall approve or deny in writing the sale or transfer request. City shall set forth
in writing with particularity its reason(s) for denying approval. City shall not unreasonably
withhold its approval.
(c) Any sale or transfer of stock in Grantee so as to create a new controlling interest in
the System shall be subject to the requirements of this Section 2.7. The term “controlling
interest” as used herein is not limited to majority stock ownership, but includes actual
working control in whatever manner exercised.
(d) In no event shall a transfer or assignment of ownership or control be approved
without the transferee becoming a signatory to this Franchise and assuming all rights and
obligations thereunder, and assuming all other rights and obligations of the transferor to
the City.
(e) In accordance with Minn. Stat. § 238.084, Subd. 1(y), the City shall have the right
to purchase the System in the event the Franchise or System is proposed to be transferred
or sold on the same terms and conditions as the offer pursuant to which transfer notice was
provided pursuant to this section. The City shall have thirty (30) days from receipt of an
application for consent under this Section 2.7 in which to give notice of its intention to
consider exercising such right.
(f) If the City has issued a written notice of franchise violation in accordance with the
terms of this Franchise, the transfer may be conditioned upon the transferee agreeing to a
mutually acceptable remediation plan. The approval of any transfer of ownership pursuant
to this section shall not be deemed to waive any rights of the Cit y to subsequently enforce
noncompliance issues relating to this Franchise even if such issues predated the approval,
whether known or unknown to the City.
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2.8 Expiration. Upon expiration of the Franchise, the City shall have the right at its own
election and subject to Grantee’s rights under Section 626 of the Cable Act to:
(a) extend the Franchise, though nothing in this provision shall be construed to require
such extension;
(b) renew the Franchise, in accordance with Applicable Laws;
(c) invite additional franchise applications or proposals;
(d) terminate the Franchise subject to any rights Grantee has under Section 626 of the
Cable Act; or
(e) take such other action as the City deems appropriate.
2.9 Right to Require Removal of Property. At the expiration of the term for which this
Franchise is granted, provided no renewal is granted, or upon its forfeiture or revocation as
provided for herein, the City shall have the right to require Grantee to remove at Grantee’s own
expense all or any part of the Cable System from all Streets and public ways within the Franchise
Area within a reasonable time. If Grantee fails to do so, the City may perform the work and collect
the cost thereof from Grantee. However, Grantee shall have no obligation to remove the Cable
System where it utilizes the system to provide other non-Cable Services and has any other authority
under Applicable Law to maintain facilitates in the public rights-of-way, or where Grantee is able
to find a purchaser of the Cable System who holds such authorization.
2.10 Continuity of Service Mandatory. It shall be the right of all Subscribers to receive Cable
Service in accordance with the terms of this Franchise and Applicable Law. In the event that
Grantee elects to overbuild, rebuild, modify, or transfer the system in accordance with Section 2.7,
or the City revokes or fails to renew the Franchise, Grantee shall make its best effort to ensure that
all Subscribers receive continuous uninterrupted service, regardless of the circumstances, while
the Franchise remains effective. In the event of expiration, revocation/termination, purchase,
lease-purchase, condemnation, acquisition, taking over or holding of plant and equipment, sale,
lease, or other transfer to any other Person, including any other grantee of a cable communications
franchise, the current Grantee shall cooperate fully to operate the system in accordance with the
terms and conditions of this Franchise for a temporary period sufficient in length to maintain
continuity of service to all Subscribers.
SECTION 3 OPERATION IN STREETS AND RIGHTS-OF-WAY
3.1 Use of Streets.
(a) Grantee may, subject to the terms of this Franchise and the City Code, erect, install,
construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along
the Streets within the City such lines, cables, conductors, ducts, conduits, vaults, manholes,
amplifiers, appliances, pedestals, attachments and other property and equipment as are
necessary and appurtenant to the operation of a Cable System within the City. Without
limiting the foregoing, Grantee expressly agrees that it will construct, operate and maintain
its Cable System in compliance with, and subject to, the requirements of the City Code,
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including by way of example and not limitation, those requirements governing the
placement of Grantee’s Cable System; and with other applicable City Codes, and will
obtain, pay for and maintain all permits and bonds required by the City Code in addition to
those required in this Franchise.
(b) All wires, conduits, cable and other property and facilities of Grantee shall be so
located, constructed, installed and maintained as not to endanger or unnecessarily interfere
with the usual and customary trade, traffic and travel upon, or other use of the Streets of
City. Grantee shall keep and maintain all of its property in good condition, order and repair
so that the same shall not menace or endanger the life or property of any Person. Grantee
shall keep accurate maps and records of all of its wires, conduits, cables and other property
and facilities located, constructed and maintained in the City.
(c) All wires, conduits, cables and other property and facilities of Grantee, shall be
constructed and installed in an orderly and professional manner in accordance with all
applicable requirements of the City Code and Applicable Law. All wires, conduits and
cables shall be installed, where possible, parallel with electric and telephone lines.
Multiple cable configurations shall be arranged in parallel and bundled with due respect
for engineering considerations.
(d) Nothing in this Franchise shall be construed to prevent the City from constructing,
maintaining, repairing or relocating sewers; grading, paving, maintaining, repairing,
relocating and/or altering any Street; constructing, laying down, repairing, maintaining or
relocating any water mains; or constructing, maintaining, relocating, or repairing any
sidewalk or other public work.
3.2 Construction or Alteration. Grantee shall in all cases comply with applicable sections of
the City Code, City resolutions and City regulations regarding the acquisition of permits and/or
such other items as may be reasonably required in order to construct, alter or maintain the Cable
System. Grantee shall, upon request, provide information to the City regarding its progress in
completing or altering the Cable System.
3.3 Non-Interference. Grantee shall exert its best efforts to construct and maintain a Cable
System so as not to interfere with other use of Streets. Grantee shall, where possible in the case
of above ground lines, make use of existing poles and other facilities available to Grantee. When
residents receiving underground service or who will be receiving underground service will be
affected by proposed construction or alteration, Grantee shall provide such notice as set forth in
the permit or in City Code of the same to such affected residents.
3.4 Consistency with Designated Use. Notwithstanding the above grant to use Streets, no
Street shall be used by Grantee if the City, in its sole opinion, determines that such use is
inconsistent with the terms, conditions or provisions by which such Street was created or
dedicated, or presently used under Applicable Laws.
3.5 Undergrounding.
(a) Grantee shall place underground all of its transmission lines which are located or
are to be located above or within the Streets of the City in the following cases:
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(i) all other existing utilities are required to be placed underground by statute,
resolution, policy or other Applicable Law;
(ii) Grantee is unable to get pole clearance;
(iii) underground easements are obtained from developers of new residential
areas; or
(iv) utilities are overhead but residents prefer underground (undergrounding
provided at cost paid by benefitted residents).
(b) If an ordinance is passed which involves placing underground certain utilities
including Grantee’s cable plant which is then located overhead, Grantee shall participate
in such underground project and shall remove poles, cables and overhead wires if requested
to do so and place facilities underground. The City and Grantee shall comply with the
provisions of Minn. Rules, Chapter 7819.3100 governing the relocation of existing
facilities. Nothing in this Franchise shall mandate that City provide reimbursement to
Grantee for the costs of such relocation and removal, and the Grantee shall not seek
damages or other compensation from the City for such compliance, unless reimbursement
is mandatory under Minn. Rules, Chapter 7819.3100. However, if the City makes available
funds for the cost of placing facilities underground, nothing herein shall preclude the
Grantee from participating in such funding to the extent consistent with the City Code or
Applicable Laws. If non-City funds, such as funds from residents or state or federal grant
funding, are made available to place electric or telephone lines underground, nothing herein
shall prohibit Grantee from participating in such funding.
(c) Grantee shall use conduit or its functional equivalent to the greatest extent possible
for undergrounding, except for Drops from pedestals to Subscribers’ homes and for cable
on other private property where the owner requests that conduit not be used. Cable and
conduit shall be utilized which meets the highest industry standards for electronic
performance and resistance to interference or damage from environmental factors. Grantee
shall use, in conjunction with other utility companies or providers, common trenches for
underground construction wherever available.
3.6 Maintenance and Restoration.
(a) Restoration. In case of disturbance of any Street, public way, paved area or public
improvement, Grantee shall, at its own cost and expense and in accordance with the
requirements of the City Code restore such Street, public way, paved area or public
improvement to substantially the same condition as existed before the work involving such
disturbance took place. All requirements of this section pertaining to public property shall
also apply to the restoration of private easements and other private property. Grantee shall
perform all restoration work within a reasonable time and with due regard to seasonal
working conditions. If Grantee fails, neglects or refuses to make restorations as required
under this section and any applicable City Code provision, then the City may do such work
or cause it to be done, and the cost thereof to the City shall be paid by Grantee. If Grantee
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causes any damage to private property in the process of restoring facilities, Grantee shall
repair such damage.
(b) Maintenance. Grantee shall maintain all above ground improvements that it places
on City Streets pursuant to the City Code and any permit issued by the City. In order to
avoid interference with the City’s ability to maintain the Streets, Grantee shall provide such
clearance as is required by the City Code and any permit issued by the City. If Grantee
fails to comply with this provision, and by its failure, property is damaged, Grantee shall
be responsible for all damages caused thereby.
(c) Disputes. In any dispute over the adequacy of restoration or maintenance relative
to this section, final determination shall be the prerogative of the City, Department of
Public Works and consistent with the City Code and any permit issued by the City.
3.7 Work on Private Property. Grantee, with the consent of property owners, shall have the
authority, pursuant to the City Code, to trim trees upon and overhanging Streets, alleys, sidewalks,
and public ways so as to prevent the branches of such trees from coming in contact with the wires
and cables of Grantee, except that at the option of the City, such trimming may be done by it or
under its supervision and direction at the reasonable expense of Grantee.
3.8 Relocation.
(a) Public Property. Grantee shall relocate its System and facilities in accordance with
the City Code. In addition, if, during the term of the Franchise, the City or any government
entity elects or requires a third party to alter, repair, realign, abandon, improve, vacate,
reroute or change the grade of any Street or other public property; or to construct, maintain
or repair any public improvement; or to replace, repair install, maintain, or otherwise alter
any cable, wire conduit, pipe, line, pole, wire-holding structure, structure, or other facility,
including a facility used for the provision of utility or other services or transportation of
drainage, sewage or other liquids, for any public purpose, Grantee shall, upon request,
except as otherwise hereinafter provided, at its sole expense remove or relocate as
necessary its poles, wires, cables, underground conduits, vaults, pedestals, manholes and
any other facilities which it has installed. The City and Grantee shall comply with the
provisions of Minn. Rules, Chapter 7819.3100 governing the relocation of existing
facilities. Nothing in this Franchise shall mandate that the City provide reimbursement to
Grantee for the costs of such relocation and removal, and the Grantee shall not seek
damages or other compensation from the City for such compliance, unless reimbursement
is mandatory under Minn. Rules, Chapter 7819.3100. However, if the City makes available
funds for the cost of placing facilities underground, nothing herein shall preclude the
Grantee from participating in such funding to the extent consistent with the City Code or
Applicable Laws. If non-City funds, such as funds from residents or state or federal grant
funding, are made available to place electric or telephone lines underground, nothing herein
shall prohibit Grantee from participating in such funding.
(b) Utilities and Other Franchisees. If, during the term of the Franchise, another entity
which holds a franchise or any utility requests Grantee to remove or relocate such facilities
to accommodate the construction, maintenance or repair of the requesting party’s facilities,
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or their more efficient use, or to “make ready” the requesting party’s facilities for use by
others, or because Grantee is using a facility which the requesting party has a right or duty
to remove, Grantee shall do so. The companies involved may decide among themselves
who is to bear the cost of removal or relocation, pursuant to City Code, and provided that
the City shall not be liable for such costs.
(c) Notice to Remove or Relocate. Any Person requesting Grantee to remove or
relocate its facilities shall give Grantee no less than forty-five (45) Days’ advance written
notice advising Grantee of the date or dates removal or relocation is to be undertaken,
provided that no advance written notice shall be required in emergencies or in cases where
public health and safety or property is endangered.
(d) Failure by Grantee to Remove or Relocate. If Grantee fails, neglects or refuses to
remove or relocate its facilities as directed by the City; or in emergencies or where public
health and safety or property is endangered, the City may do such work or cause it to be
done, and the cost thereof to the City shall be paid by Grantee. If Grantee fails, neglects
or refuses to remove or relocate its facilities as directed by another franchisee or utility,
that franchisee or utility may do such work or cause it to be done, and if Grantee would
have been liable for the cost of performing such work, the cost thereof to the party
performing the work or having the work performed shall be paid by Grantee.
(e) Procedure for Removal of Cable. Grantee shall not remove any underground cable
or conduit which requires trenching or other opening of the Streets along the extension of
cable to be removed, except as hereinafter provided. Grantee may remove any
underground cable from the Streets which has been installed in such a manner that it can
be removed without trenching or other opening of the Streets along the extension of cable
to be removed. Subject to Applicable Law, Grantee shall remove, at its sole cost and
expense, any underground cable or conduit by trenching or opening of the Streets along
the extension thereof or otherwise which is ordered to be removed by the City based upon
a determination, in the sole discretion of the City, that removal is required in order to
eliminate or prevent a hazardous condition. Underground cable and conduit in the Streets
which is not removed shall be deemed abandoned and title thereto shall be vested in the
City.
(f) Movement of Buildings. Grantee shall, upon request by any Person holding a
building moving permit, franchise or other approval issued by the City, temporarily
remove, raise or lower its wire to permit the movement of buildings. The expense of such
removal, raising or lowering shall be paid by the Person requesting same, and Grantee shall
be authorized to require such payment in advance. The City shall require all building
movers to provide not less than fifteen (15) Days’ notice to the Grantee to arrange for such
temporary wire changes.
SECTION 4 REMOVAL OR ABANDONMENT OF SYSTEM
4.1 Removal of Cable System. In the event that: (l) the use of the Cable System is
discontinued for any reason for a continuous period of twelve (12) months; or (2) the Cable System
has been installed in a Street without complying with the requirements of this Franchise or the City
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Code, Grantee, at its expense shall, at the demand of the City remove promptly from the Streets
all of the Cable System other than any which the City may permit to be abandoned in place. In
the event of any such removal Grantee shall promptly restore the Street to a condition as nearly as
possible to its prior condition or other public places in the City from which the System has been
removed. However, Grantee shall have no obligation to remove the Cable System where it utilizes
the system to provide other non-Cable Services and has any other authority under Applicable Law
to maintain facilities in the Street, or where Grantee is able to find a purchaser of the Cable System
who holds such authorization.
4.2 Abandonment of Cable System. In the event of Grantee’s abandonment of the Cable
System, City shall have the right to require Grantee to comply with the state right-of-way rules,
Minn. Rules, Chapter 7819. The Cable System to be abandoned in place shall be abandoned in
the manner prescribed by the City. Grantee may not abandon any portion of the System without
having first given three (3) months written notice to the City. Grantee may not abandon any portion
of the System without compensating the City for damages resulting from the abandonment.
4.3 Removal after Abandonment or Termination. If Grantee has failed to commence
removal of System, or such part thereof as was designated by the City, within thirty (30) Days
after written notice of the City’s demand for removal consistent with Minn. Rules, Ch. 7819, is
given, or if Grantee has failed to complete such removal within twelve (12) months after written
notice of the City’s demand for removal is given, the City shall have the right to apply funds
secured by the Bond toward removal and/or declare all right, title, and interest to the Cable System
for the City with all rights of ownership including, but not limited to, the right to operate the Cable
System or transfer the Cable System to another for operation by it.
4.4 City Options for Failure to Remove Cable System. If Grantee has failed to complete
such removal within the time given after written notice of the City’s demand for removal is given,
the City shall have the right to exercise one of the following options:
(a) Declare all right, title and interest to the System for the City or its designee with all
rights of ownership including, but not limited to, the right to operate the System or transfer
the System to another for operation by it; or
(b) Declare the System abandoned and cause the System, or such part thereof as the
City shall designate, to be removed at no cost to the City. The cost of said removal shall
be recoverable from the security fund, indemnity and penalty section provided for in this
Franchise or from Grantee directly.
(c) Upon termination of service to any Subscriber, Grantee shall promptly remove all
facilities and equipment from within the dwelling of a Subscriber who owns such dwelling
upon his or her written request, except as provided by Applicable Law. Such Subscribers
shall be responsible for any costs incurred by Grantee in removing the facilities and
equipment.
4.5 System Construction and Equipment Standards. The Cable System shall be installed
and maintained in accordance with standard engineering practices and shall conform, when
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applicable, with the National Electrical Safety Code, the National Electrical Code and the FCC’s
Rules and Regulations.
4.6 System Maps and Layout. In addition to any generally applicable mapping requirements
included in the City Code and required of other utilities, Grantee shall maintain complete and
accurate system maps, which shall include trunks, distribution lines, and nodes. Such maps shall
include up-to-date route maps showing the location of the Cable System adjacent to the Streets.
Grantee shall make all maps available for review by the appropriate City personnel.
SECTION 5 SYSTEM DESIGN AND CAPACITY
5.1 Availability of Signals and Equipment.
(a) The Cable System utilizes a fiber to the fiber node architecture, with fiber optic
cable deployed from Grantee’s headend to Grantee’s fiber nodes, tying into Grantee’s
coaxial Cable System serving Subscribers. The System shall pass a minimum of 750 MHz
(with a minimum passband of between 50 and 750 MHz) and shall be maintained to provide
to Subscribers a minimum of at least two hundred (200) or more activated downstream
video Channels, or such comparable video viewing capability as is provided in light of
developing technologies and video distribution practices in the future.
(b) The entire System shall be technically capable of transmitting industry-standard
digital television signals in a manner and quality consistent with applicable FCC
regulations.
(c) Grantee agrees to maintain the Cable System in a manner consistent with, or in
excess of the specifications in Section 5.1 (a) and (b) throughout the term of the Franchise
with sufficient capability and technical quality to enable the implementation and
performance of all requirements of this Franchise, including the exhibits hereto, and in a
manner which meets or exceeds FCC technical quality standards at 47 C.F.R. § 76 Subpart
K, regardless of the particular format in which a signal is transmitted.
5.2 Equal and Uniform Service. Grantee shall provide access to equal and uniform Cable
Service throughout the City consistent with Applicable Law.
5.3 System Specifications.
(a) System Maintenance. In all construction and service provision activities, Grantee
shall meet or exceed the construction, technical performance, extension and service
requirements set forth in this Franchise.
(b) Emergency Alert Capability. At all times during the term of this Franchise, Grantee
shall provide and maintain an Emergency Alert System (EAS) consistent with Applicable
law and regulations including 47 C.F.R., Part 11, and any Minnesota State Emergency
Alert System requirements. The City may identify authorized emergency officials for
activating the EAS insofar as the City’s process is consistent with the Minnesota State
Emergency Statewide Plan (“EAS Plan”). The City may also develop a local plan
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containing methods of EAS message distribution, insofar as the local plan is consistent
with Applicable Laws and the EAS Plan.
(c) Standby Power. Grantee shall provide standby power generating capacity at the
Cable System control center and at all hubs. Grantee shall maintain standby power system
supplies, rated for at least two (2) hours’ duration, throughout the trunk and distribution
networks. In addition, Grantee shall have in place throughout the Franchise term a plan,
and all resources necessary for implementation of the plan, for dealing with outages of
more than two (2) hours.
(d) Technical Standards. The technical standards used in the operation of the Cable
System shall comply, at minimum, with the technical standards promulgated by the FCC
relating to Cable Systems pursuant to Title 47, Section 76, Subpart K of the Code of Federal
Regulations, as may be amended or modified from time to time, which regulations are
expressly incorporated herein by reference. The Cable System shall be installed and
maintained in accordance with standard engineering practices and shall conform with the
National Electrical Safety Code and all other Applicable Laws governing the construction
of the Cable System.
5.4 Performance Testing. Grantee shall perform all system tests at the intervals required by
the FCC, and all other tests reasonably necessary to determine compliance with technical standards
required by this Franchise. These tests may include, at a minimum:
(a) Initial proof of performance for any construction;
(b) Tests in response to Subscriber complaints; and
(c) Tests reasonably requested by the City to demonstrate Franchise compliance.
(d) Written records of all system test results performed by or for Grantee shall be
maintained, and shall be available for City inspection upon request.
5.5 Special Testing.
(a) Throughout the term of this Franchise, City shall have the right to inspect all
construction or installation work performed pursuant to the provisions of the Franchise. In
addition, City may require special testing of a location or locations within the System if
there is a particular matter of controversy or unresolved complaints regarding such
construction or installation work or pertaining to such location(s). Demand for such special
tests may be made on the basis of complaints received or other evidence indicating an
unresolved controversy or noncompliance. Such tests shall be limited to the particular
matter in controversy or unresolved complaints. City shall endeavor to so arrange its
request for such special testing so as to minimize hardship or inconvenience to Grantee or
to the Subscribers impacted by such testing.
(b) Before ordering such tests, Grantee shall be afforded thirty (30) Days following
receipt of written notice to investigate and, if necessary, correct problems or complaints
upon which tests were ordered. City shall meet with Grantee prior to requiring special tests
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to discuss the need for such and, if possible, visually inspect those locations which are the
focus of concern. If, after such meetings and inspections, City wishes to commence special
tests and the thirty (30) Days have elapsed without correction of the matter in controversy
or unresolved complaints, the tests shall be conducted at Grantee’s expense by Grantee’s
qualified engineer. The City shall have a right to participate in such testing by having an
engineer of City’s choosing, and at City’s expense, observe and monitor said testing.
SECTION 6 PROGRAMMING AND SERVICES
6.1 Categories of Programming Service. Grantee shall provide video programming services
in at least the following broad categories subject to Applicable Law:
Local Broadcast (subject to federal carriage requirements)
Public Broadcast
News and Information
Sports
General Entertainment
Arts/Performance/Humanities
Science/Technology
Children/Family/Seniors
Foreign Language/Ethnic Programming
PEG Programming (to the extent required by the Franchise)
Movies
Leased Access
6.2 Changes in Programming Services. Grantee shall provide at least thirty (30) Days’ prior
written notice to Subscribers and to the City of Grantee’s request to effectively delete any broad
category of programming or any Channel within its control, including all proposed changes in
bandwidth or Channel allocation and any assignments including any new equipment requirements
that may occur as a result of these changes.
6.3 Parental Control Device or Capability. Upon request by any Subscriber, Grantee shall
make available a parental control or lockout device or functionality that will enable the Subscriber
to block all access to any and all Channels without affecting those not blocked. Grantee shall
inform Subscribers of the availability of the lockout device or functionality at the time of original
subscription and annually thereafter.
6.4 FCC Reports. The results of any tests required to be filed by Grantee with the FCC shall
also be copied to City within ten (10) Days of the conduct of the date of the tests.
6.5 Annexation. Unless otherwise provided by Applicable Law, including the City Code,
upon the annexation of any additional land area by City, the annexed area shall thereafter be subject
to all the terms of this Franchise upon sixty (60) Days written notification to Grantee of the
annexation by City. Unless otherwise required by Applicable Laws, nothing herein shall require
the Grantee to expand its Cable System to serve, or to offer Cable Service to any area annexed by
the City if such area is then served by another Wireline MVPD franchise to provide multichannel
video programming.
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6.6 Line Extension.
(a) Grantee shall construct and operate its Cable System so as to provide Cable Service
within the Franchise Area where there exists a density equivalent of seven (7) dwelling
units per one-quarter (1/4) mile of feeder cable as measured from the nearest active plant
of the Cable System if the extension is to be constructed using aerial plant, and nine (9)
dwelling units per one-quarter (1/4) mile of feeder cable as measured from the nearest
active plant if the extension is to be constructed using underground plant. The City, for its
part, shall endeavor to exercise reasonable efforts to require developers and utility
companies to provide the Grantee with at least fifteen (15) Days advance notice of an
available open trench for the placement of necessary cable.
(b) Any residential unit located within one hundred twenty-five (125) feet from the
nearest point of access on the Street from which the Cable System is designed to serve the
site shall be connected to the Cable System at no charge other than the standard installation
charge. Grantee shall, within fifteen (15) Days request by any potential Subscriber residing
in City beyond the one hundred twenty-five (125) foot limit, provide a quote identifying
the costs and construction schedule associated with extending service to such Subscriber.
Grantee shall perform the extension of service as soon as reasonably possible and in no
event later than the date committed in the quote, excluding events covered by Section 17.9
herein. The Subscriber shall pay the net additional Drop costs, unless the Grantee agrees
to waive said costs. To the extent consistent with Applicable Laws, Grantee agrees that it
shall impose installation costs for non-standard installations in a uniform and
nondiscriminatory manner throughout the City.
6.7 Nonvoice Return Capability. Grantee is required to use cable and associated electronics
having the technical capacity for nonvoice return communications.
SECTION 7 LOCAL PEG PROGRAMMING
7.1 Number of PEG Channels.
(a) Upon the Effective Date of this Franchise, Grantee will continue to make available
a minimum of seven (7) PEG Channels in Standard Definition (“SD”). Throughout the
term of this Franchise Grantee shall provide the PEG Channels on the Basic Cable Service
tier or such other most subscribed tier of Cable Service (within the Franchise Area) as may
be offered by Grantee in accordance with Applicable Law.
(b) For purposes of this Franchise, a high definition (“HD”) signal refers to a television
signal delivering picture resolution of either 720p or greater, or such other resolution in the
same range that Grantee commonly utilizes for other similar programming Channels.
7.2 HD PEG Channels.
(a) Within ninety (90) Days of the Effective Date of this Franchise, Grantee shall
provide five (5) SD PEG Channels and two (2) HD PEG Channels to be shared by the
Commission’s seven (7) Member Cities.
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(b) By January 1, 2022, and after ninety (90) Days written notice to the Grantee, which
notice Commission may send on or before October 1, 2021, Grantee shall provide five (5)
SD PEG Channels and three (3) HD PEG Channels to be shared by the Commission’s
seven (7) Member Cities. Following implementation of this Section 7.2(b), the Grantee
shall provide a total of eight (8) PEG Channels ((5) SD / (3) HD).
(c) The HD PEG Channels may duplicate the SD PEG Channels or may be
programmed with different “best of” content, based on Commission’s sole discretion.
(d) On or after the fifth (5th) anniversary of the Effective Date of this Franchise and
after ninety (90) Days written notice to the Commission, Grantee may require that the
Commission give back one (1) SD PEG Channel. Following implementation of this
Section 7.2(d), the Commission will have four (4) SD PEG Channels and three (3) HD
PEG Channels to be shared by the Commission’s seven (7) Member Cities.
(e) If Grantee terminates all SD Channels and SD Cable Services and provides all
Cable Services to all Subscribers in HD only, and after ninety (90) Days written notice to
the Commission, Grantee shall provide four (4) HD PEG Channels to be shared by the
Commission’s seven (7) Member Cities.
(f) The City acknowledges that receipt of an HD format PEG Channel may require
Subscribers to buy or lease special equipment, or pay additional HD charges applicable to
all HD services.
(g) The Commission shall pay for and be responsible for all HD playback servers to be
located at 5845 Blaine Avenue, Inver Grove Heights, MN (“Playback Facility”). Grantee
agrees that it shall be responsible for costs associated with the provision of encoders or
other equipment necessary to receive HD/SD signals at the headend, and to convert PEG
HD signals to SD consistent with the historic practice between the parties.
7.3 Control of PEG Channels. The control and administration of the PEG Channels shall rest
with the City. The City may delegate, from time to time over the term of this Franchise, such
control and administration to various entities as determined in City’s sole discretion. As of the
Effective Date of this Franchise the City has delegated control of the PEG Channels to the
Commission.
7.4 Transmission of PEG Channels. PEG Channels may be used for transmission of non-
video signals in compliance with Applicable Laws. This may include downstream transmission
of data using a protocol such as TCP/IP or current industry standards. Should Grantee develop the
capability to provide bi-directional data transmission, spectrum capacity shall be sufficient to allow
Subscribers to transmit data to PEG facilities.
7.5 PEG Channel Locations.
(a) Grantee shall continue cablecasting PEG programming on the Cable System on the
same Channel locations as such programming is cablecast within the City as of the
Effective Date. Current SD PEG Channel locations as of the Effective Date as well as the
location of the first two (2) HD PEG Channels to be provided under Section 7.2 are listed
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on Exhibit A. Grantee agrees not to change these PEG Channel locations more than two
(2) times during the term of this Franchise unless required by law for other programmers
with specific Channel number rights or pursuant to an overall Channel reorganization of
the entire Channel lineup. In no event shall any PEG Channel relocations be made prior to
ninety (90) days written notice to the City by Grantee, except for circumstances beyond
Grantee’s control. If relocated, Grantee will work in good faith with the City to identify
new Channel locations such that the PEG Channels will be located within reasonable
proximity to other broadcast or news Channels where available Channel numbers allow.
(b) Grantee agrees not to encrypt the PEG Channels differently than other commercial
Channels available on the Cable System.
(c) In the event Grantee requires relocation of a PEG Channel pursuant to Section
7.5(a), Grantee shall provide a rebranding reimbursement grant of One Thousand Five
Hundred and No/100 Dollars ($1,500) per relocated Channel.
7.6 Navigation to PEG Channels and Electronic Programming Guide. Grantee agrees that
if it utilizes any navigation interfaces under its control on its Cable System for all Channels, the
PEG Channels shall be treated in a non-discriminatory fashion consistent with Applicable Laws
so that Subscribers will have ready access to PEG Channels. Grantee will maintain the existing
ability of the City to place PEG Channel programming information on the interactive Channel
guide via the electronic programming guide (“EPG”) vendor (“EPG provider”) that Grantee
utilizes to provide the guide service. Grantee will be responsible for providing the designations
and instructions necessary for the PEG Channels to appear on the EPG. All costs and operational
requirements of the EPG provider shall be the responsibility of the City. City acknowledges that
the EPG may not be technically possible for all PEG programming, and that Grantee is not
responsible for operations of the EPG provider.
7.7 Ownership of PEG Channels. Grantee does not relinquish its ownership of or ultimate
right of control over a Channel by designating it for PEG use. A PEG access user – whether an
individual, education or government user – acquires no property or other interest by virtue of the
use of a Channel position so designated. Grantee shall not exercise editorial control over any
public, education, or government use of a Channel position, except Grantee may refuse to transmit
any public access program or portion of a public access program that contains obscenity,
indecency, or nudity in violation of Applicable Law.
7.8 PEG Monitoring. Grantee shall continue to provide the capability, without charge, for
Commission representatives at the four (4) City Hall locations and the Commission’s master
control facility listed in Exhibit C, to monitor and verify the audio and visual quality of PEG
Channels received by Subscribers as well as the existing connections and equipment at the
Commission’s master control facility. This will include equipment comparable to that deployed
to residential cable Subscribers that will allow the Commission to verify the accuracy of EPG
listings for the PEG Channels consistent with what is currently provided. Grantee shall also
maintain one (1) feed to the Commission office to provide the ability to monitor Subscriber
services and address Subscriber concerns which feed shall include all cable boxes and platforms
(i.e. Xfinity X1).
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7.9 PEG Transport. During the term of this Franchise, Grantee will provide PEG transport
as follows:
(a) The Commission may transmit signals for the PEG Channels in “real time”
upstream from the four (4) City Hall locations listed in Exhibit C to the Commission’s
playback facility currently located at 5845 Blaine Avenue, Inver Grove Heights, MN
(“Playback Facility”) to Grantee’s hub and head-end using existing fiber connections
without additional charge or offsets from Grantee. Grantee shall continue to provide
without charge or offsets, fiber backhaul and transmitter/receiver equipment for live PEG
programming from City Halls as is the practice on the Effective Date of this Franchise.
(b) Grantee shall provide the capability for the Commission, either through a fiber
connection, DOCSIS cable modem solution, or other technology of Grantee’s choosing, to
transmit live programming from additional locations of the Commission’s choosing,
subject to the Commission providing or renting necessary modems, encoders, decoders or
similar devices, configuring such equipment, and removing such equipment in the event of
interference with Grantee’s delivery of Cable Service. To the extent a set of mobile
DOCSIS cable modems (or such other devices as may replace DOCS IS modems during
the term of this Franchise) are utilized, such modems shall be able to connect to the
Subscriber network at permanent or temporary Drops, subject to two (2) weeks prior
written notice to Grantee and use upstream capacity on the Subscriber network to transmit
programming via the Subscriber network and the connections to the Playback Facility
equal to or of better quality than the PEG signals transmitted to Subscribers.
(i) The Commission shall be responsible for purchasing high speed internet
service for the transmission of live programming at market rates.
(ii) The Commission shall provide any necessary encoders, decoders or similar
devices and shall configure equipment and connections so that signals can be
transmitted to the Playback Facility.
(iii) Grantee may request that the Commission remove an encoder, or similar
device if it technically interferes with Grantee’s delivery of Cable Service.
(c) Grantee shall maintain the existing fiber paths/equipment and existing PEG
connectivity to the locations listed in Exhibit C during the term of this Franchise, without
additional charge (with no recurring, monthly costs or offsets, except that Grantee may
invoice the Commission for any actual repair or maintenance costs which shall not exceed
Five Thousand and No/100 Dollars ($5,000) per year and which shall be estimated to the
Commission in advance whenever possible, and shall be documented and invoiced to the
Commission for payment) to permit the Commission/City to transport PEG programming.
This will allow the Commission to continue cablecasting PEG programming from the
locations listed in Exhibit C and will maintain connections from the Commission’s master
control to Grantee’s hub and head-end without additional charge or offsets.
7.10 Interconnection with other Twin Cities PEG Stations. Grantee shall continue to make
the metro area fiber ring known as the PRISMA Ring available to the City, without charge, as long
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as the PRISMA Ring remains serviceable. The City may use the PRISMA Ring (or its equivalent)
to send and receive live and recorded programming to/from other Twin Cities PEG stations for as
long as the network remains viable. Grantee shall provide City access to the PRISMA Ring at an
agreed upon demarcation point. Grantee will provide use of and maintain the PRISMA Ring
without charge, but Grantee will not be obligated to replace network equipment on the PRISMA
Ring or for any equipment on the City’s side of the demarcation point. Grantee agrees to continue
to provide, without charge or offsets, use of Grantee’s Converged Regional Area Network (C-
RAN) for delivery of live and recorded programming to and from the entities listed on Exhibit B,
limited to six (6) multi-cast IP Channels. This obligation shall terminate if Grantee no longer
utilizes the C-RAN for its own business purposes. Grantee shall have no obligation to replace any
network equipment currently located in its headend facility or at the City or Commission facility
necessary to deliver or receive such programming over the C-RAN. Replacement of any decoding
equipment necessary to receive the programming via the C-RAN will be the responsibility of the
City and will require Grantee’s approval to ensure equipment compatibility. If there are
incremental equipment and maintenance costs specific to the PEG use of the C-RAN, Grantee will
notify the City of such costs and allow the City the option of reimbursing Grantee for such costs
or to cease using the C-RAN. Grantee shall not be responsible for providing a specific
performance level over the C-RAN or resolving any transmission issues caused by incompatibility
of audio or video file formats with interconnected equipment.
7.11 Future PEG Transport. At such time that the City determines:
(a) that the City desires the capacity to allow Subscribers in the City to receive PEG
programming (video or character generated) which may originate from schools, City
facilities, other government facilities or other designated facilities (other than those
indicated in paragraph 7.9); or
(b) that the City desires to establish or change a location from which PEG programming
is originated; or
(c) that the City desires to upgrade the connection to Grantee from an existing signal
point of origination,
the City will give Grantee written notice detailing the point of origination and the capability sought
by the City. After receipt of such notice by Grantee, Grantee and the City may enter into an
agreement which compensates Grantee in accordance with Applicable Law, for new sites added
or upgraded connections. After such an agreement has been executed, Grantee will implement
any necessary Cable System changes within a reasonable period of time. Nothing herein prevents
the City, or a private contractor retained by the City, from constructing said connection, as long as
such connection does not interconnect with Grantee’s Cable System without Grantee’s consent or
interfere with Grantee’s Cable System.
7.12 PEG Channel Carriage.
(a) The City or its designee shall be responsible for developing, implementing,
interpreting and enforcing rules for PEG Channel use.
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(b) The Grantee shall monitor the PEG Channels for technical quality to ensure that
they meet FCC technical standards including those applicable to the carriage of PEG
Channels, provided however, that the Grantee is not responsible for the production quality
of PEG programming productions. The City, or its designee, shall be responsible for the
production and quality of all PEG programming. Grantee shall carry all components of the
SD/HD PEG Channel(s) including, but not limited to, closed captioning, stereo audio and
other elements associated with the programming.
7.13 PEG Programming Financial Support.
(a) During the term of the Franchise, Grantee shall pay quarterly to the Commission a
PEG Fee in an amount equal to two and one-quarter percent (2.25%) of its quarterly Gross
Revenues, for the duration of this Franchise. Payments pursuant to this subsection shall be
paid to the Commission on the same schedule and including the same payment worksheets
as the Franchise Fee payments set forth in Section 16.1(a-c) of this Franchise.
(b) The PEG Fee may be used by City and Commission to fund PEG expenditures in
accordance with Applicable Law.
(c) The PEG Fee is not part of the Franchise Fee and instead falls within one or more
of the exceptions in 47 U.S.C. § 542, unless the PEG Fee is used by City or Commission
in violation of Applicable Law. The PEG Fee may be categorized, itemized, and passed
through to Subscribers as permissible, in accordance with 47 U.S.C. § 542 or other
Applicable Laws.
7.14 PEG Technical Quality and Support.
(a) Grantee shall not be required to carry a PEG Channel in a higher quality format
than that of the Channel signal delivered to Grantee, but Grantee shall not implement a
change in the method of delivery of PEG Channels that results in a material degradation of
signal quality or impairment of viewer reception of PEG Channels, provided that this
requirement shall not prohibit Grantee from implementing new technologies also utilized
for commercial Channels carried on its Cable System. Grantee shall meet FCC signal
quality standards when offering PEG Channels on its Cable System and shall continue to
comply with closed captioning pass-through requirements. There shall be no significant
deterioration in a PEG Channel signal from the point of origination upstream to the point
of reception (hub or head-end) or downstream to the Subscriber on the Cable System.
(b) Grantee shall provide a local (Twin Cities) response phone number, cell number,
and e-mail address for local (Twin Cities) technical support staff who are trained to
effectively respond to and resolve PEG related issues. For urgent issues (such as signal
problems during live programs) the Grantee will respond as soon as possible. For non-
urgent tech support requests the Grantee will respond within three (3) hours or forty-eight
(48) hours, depending upon the response time needed. Commission technical staff will
determine what requests are urgent or non-urgent. The Commission agrees to use best
efforts to verify that the issue is not on the Commission’s side of the demarcation point
before a call is made to Grantee.
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(c) Grantee agrees to continue its practice of providing to the Commission three (3)
satellite feeds from Grantee’s headend facility and/or hub site locations directly to the
Commission’s Playback Facility without charge to Commission. The Commission shall
be responsible for obtaining any necessary carriage and license agreements for the
programming aired on its PEG Channels to the extent the content providers require such
agreements. The Commission shall pay any license fees, copyright fees and other costs of
the programming provider. If Grantee receives a demand to cease and desist from providing
any programming content to the Commission under this section or the source of the
programming ceases to operate, Grantee may terminate such programming immediately
without prior notice, but will provide notice that such programming has been terminated as
soon as possible. If Grantee ceases to maintain the satellite reception facility through
which the programming is received, Grantee will give the Commission sixty (60) days prior
notice of the discontinuation to allow the Commission to obtain the programming from
another source.
7.15 Change in Technology. In the event Grantee makes any change in the Cable System and
related equipment and facilities or in its signal delivery technology, which requires the City to
obtain new equipment in order to be compatible with such change for purposes of transport and
delivery of the PEG Channels, Grantee shall, at its own expense and without charge to the City or
its designated entities, purchase such equipment as may be necessary to facilitate the cablecasting
of the PEG Channels in accordance with the requirements of the Franchise.
7.16 Relocation of Grantee’s Headend. In the event Grantee relocates its headend, Grantee
will be responsible for replacing or restoring the existing dedicated fiber connections at Grantee’s
cost so that all functions and capacity remain available, operate reliably and satisfy all applicable
technical standards and related obligations of the Franchise without charge to the City or its
designated entities.
7.17 Regional Channel Six. Grantee shall make available Regional Channel Six as long as it
is required to do so by Applicable Law.
7.18 Compliance with Minnesota Statutes Chapter 238. In addition to the requirements
contained in this Section 7 of this Franchise, Grantee and City shall comply with the PEG
requirements mandated by Minn. Stat. § 238.084.
SECTION 8 REGULATORY PROVISIONS
8.1 Intent. The City shall have the right to administer and regulate activities under the
Franchise to the full extent permitted by Applicable Law. The City may delegate to any other
body or Person authority to administer the Franchise and to monitor the performance of Grantee
pursuant to the Franchise. Grantee shall cooperate with any such delegates of the City.
8.2 Delegation of Authority to Regulate. The City reserves the right to delegate its regulatory
authority wholly or in part to another governmental entity, including, but not limited to, an entity
which may be formed to regulate several franchises in the region in a manner consistent with
Applicable Laws. As of the Effective Date of this Franchise, the Commission shall have
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continuing regulatory jurisdiction and supervision over the Cable System and Grantee’s operation
under the Franchise.
8.3 Regulation of Rates and Charges.
(a) Right to Regulate. The City reserves the right to regulate rates or charges for any
Cable Service within the limits of Applicable Law, to enforce rate regulations prescribed
by the FCC, and to establish procedures for said regulation or enforcement.
(b) Notice of Change in Rates and Charges. Throughout the term of this Franchise,
Grantee shall give the City and all Subscribers within the City at least thirty (30) Days’
notice of any intended modifications or additions to Subscriber rates or charges. Nothing
in this subsection shall be construed to prohibit the reduction or waiving of rates or charges
in conjunction with promotional campaigns for the purpose of attracting Subscribers or
users.
(c) Rate Discrimination Prohibited. Within any category of Subscribers, Grantee shall
not discriminate among Subscribers with regard to rates and charges made for any service
based on considerations of race, color, creed, sex, marital or economic status, national
origin, sexual preference, or (except as allowed by Applicable Law) neighborhood of
residence, except as otherwise provided herein; and for purposes of setting rates and
charges, no categorization of Subscribers shall be made by Grantee on the basis of those
considerations. Nevertheless, Grantee shall be permitted to establish (1) discounted rates
and charges for providing Cable Service to low-income, disabled, or low-income elderly
Subscribers, (2) promotional rates, and (3) bulk rate and package discount pricing.
SECTION 9 BOND
9.1 Performance Bond.
(a) Upon the Effective Date of this Franchise and at all times thereafter until the
Grantee has liquidated all of its obligations under this Franchise, the Grantee shall furnish
and file with Commission, on behalf of all Member Cities, a bond in the sum of One
Hundred Thousand and No/100 Dollars ($100,000.00) in such form and with such sureties
as shall be acceptable to the Commission (“Bond”). The Bond shall be conditioned upon
the faithful performance by Grantee of this Franchise and upon the further condition that
in the event Grantee shall fail to comply with any law, ordinance or regulation, there shall
be recoverable jointly and severally from the principal and surety of the Bond, any damages
or losses suffered by City as a result, including the full amount of any compensation,
indemnification or cost of removal of any property of Grantee, including a reasonable
allowance for attorneys’ fees and costs (with interest at prime rate plus two percent (2%)),
up to the full amount of the Bond, and which Bond shall further guarantee payment by
Grantee of all claims and liens against City, or any public property, and taxes due to City,
which arise by reason of the construction, operation, maintenance or use of the Cable
System.
9.2 Rights. The rights reserved by City with respect to the Bond are in addition to all other
rights the City may have under this Franchise or any other law.
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9.3 Reduction of Bond Amount. City may, in its sole discretion, reduce the amount of the
Bond.
9.4 Procedure to Draw on Bond.
(a) The parties shall follow the procedure set forth in Section 11.1 of this Franchise
regarding any draw on the Bond.
(b) In the event this Franchise is terminated in accordance with the procedure set forth
in Section 11, the City shall be entitled to collect from the Bond that amount which is
attributable to any damages sustained by the City as a result of said violation.
(c) Grantee shall be entitled to the return of the Bond, or portion thereof, as remains
one hundred and twenty (120) Days after the expiration of the term of the Franchise or
termination for violation thereof, provided the City has not notified Grantee of any actual
or potential damages incurred as a result of Grantee’s operations pursuant to the Franchise
or as a result of said violation.
(d) The rights reserved to the City with respect to the Bond are in addition to all other
rights of the City whether reserved by this Franchise or authorized by law, and no action,
proceeding or exercise of a right with respect to the Bond shall affect any other right the
City may have.
SECTION 10 SECURITY FUND
10.1 Security Fund. Within thirty (30) Days of the Effective Date, Grantee shall establish and
provide to the City or the Commission, on behalf of the City, as security for the faithful
performance by Grantee of all provisions of this Franchise, an irrevocable letter of credit from a
financial institution satisfactory to the City or the Commission in the amount of Twenty-Five
Thousand and No/100 Dollars ($25,000.00) (“Security Fund”). Failure to post the Security Fund
shall constitute a material violation of this Franchise. The Security Fund shall serve as security
for the faithful performance by Grantee of all the provisions of this Franchise and compliance with
all orders, permits and directions of the City and the payment by Grantee of any claim, liens, costs,
expenses and taxes due the City which arise by reason of the construction, operation or
maintenance of the Cable System. The obligation to establish the Security Fund required by this
paragraph is unconditional. If Grantee fails to establish the Security Fund as required, the City
may take whatever action is appropriate to require the establishment of that Security Fund and may
recover its costs, reasonable attorneys’ fees, and an additional penalty of Five Thousand Dollars
($5,000) in that action.
10.2 Withdrawal of Funds. The Security Fund shall permit the City to withdraw funds upon
demand (sight draft). Grantee shall not use the Security Fund for other purposes and shall not
assign, pledge or otherwise use this Security Fund as security for any other purpose.
10.3 Liquidated Damages. In addition to recovery of any monies owed by Grantee to City or
damages to City as a result of any acts or omissions by Grantee pursuant to the Franchise, City in
its sole discretion may charge to and collect from the Security Fund the following liquidated
damages:
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(a) For failure to provide data, documents, reports or information or to cooperate with
City during an application process, audit, or System review, the liquidated damage shall be
Two Hundred Fifty Dollars ($250.00) per Day for each Day, or part thereof, such failure
occurs or continues.
(b) For failure to comply with any of the provisions of this Franchise for which a
penalty is not otherwise specifically provided pursuant to this Section 10.3, the liquidated
damage shall be Two Hundred Fifty Dollars ($250.00) per Day for each Day, or part
thereof, such failure occurs or continues.
(c) For failure of Grantee to comply with construction, operation or maintenance
standards, the liquidated damage shall be Five Hundred Dollars ($500.00) per Day for each
Day, or part thereof, such failure occurs or continues.
(d) For failure to provide the services Grantee has proposed, including but not limited
to the implementation and the utilization of the PEG Channels, the liquidated damage shall
be Two Hundred Fifty Dollars ($250.00) per Day for each Day, or part thereof, such failure
occurs or continues.
10.4 Each Violation a Separate Violation. Each violation of any provision of this Franchise
shall be considered a separate violation for which separate liquidated damages can be imposed.
However, to the extent City remains a Member City of Commission, liquidated damages under
Section 10.3 for a violation of each Member City franchise shall be calculated by the Commission
as one violation, and not as multiple violations (one violation for each individual Member City
franchise). For example, liquidated damages per Day under section 10.3(a) would equal Two
Hundred Fifty Dollars ($250.00), not One Thousand Seven Hundred Fifty Dollars ($1,750) (seven
times the per Day liquidated damages amount).
10.5 Maximum Draw Per Violation. Any liquidated damages for any given violation shall be
imposed upon Grantee for a maximum of Twenty-Five Thousand and No/100 Dollars
($25,000.00). If after that amount of draw from the Security Fund Grantee has not cured or
commenced to cure the alleged breach to the satisfaction of the City, the City may pursue all other
remedies.
10.6 Withdrawal of Funds to Pay Taxes. If Grantee fails to pay to the City any taxes due and
unpaid; or fails to repay to the City, any damages, costs or expenses which the City shall be
compelled to pay by reason of any act or default of the Grantee in connection with this Franchise;
or fails, after thirty (30) Days’ notice of such failure by the City to comply with any provi sion of
the Franchise which the City reasonably determines can be remedied by an expenditure of the
Security Fund, the City may then draw from the Security Fund. Payments are not Franchise Fees
as defined in Section 16 of this Franchise.
10.7 Procedure for Draw on Security Fund. The parties shall follow the procedure set forth
in Section 11.1 of this Franchise regarding any withdrawal from the Security Fund.
10.8 Grantee’s Right to Pay Prior to Security Fund Draw. Grantee shall have the
opportunity to make prompt payment of any assessed liquidated damages and if Grantee fails to
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promptly remit payment to the City, the City may resort to a draw from the Security Fund in
accordance with the terms of this Franchise.
10.9 Failure to Establish Security Fund. City may draw on said Security Fund for the whole
amount thereof and hold the proceeds, without interest, and use the proceeds to pay costs incurred
by City in performing and paying for any or all of the obligations, duties and responsibilities of
Grantee under this Franchise that are not performed or paid for by Grantee pursuant hereto,
including attorneys’ fees incurred by the City in so performing and paying. The failure to establish
a Security Fund under section 10.1 may also, at the option of City, be deemed a violation by
Grantee under this Franchise. The drawing on the Security Fund by City, and use of the money so
obtained for payment or performance of the obligations, duties and responsibilities of Grantee
which are in default, shall not be a waiver or release of such violation.
10.10 Replenishment of Security Fund. If Commission or City exhaust the Security Fund under
Section 10.5 during a given violation proceeding, Grantee shall have no obligation to replenish the
Security Fund for such violation proceeding. However, Grantee must replenish the Security Fund
as security for any future franchise violation. If the amount of the Security Fund established under
Section 10.1 is not enough to secure the performance of the obligations described in Section 10.1,
then the City or the Commission must resort to the Bond provided in Section 9 or other
enforcement mechanisms provided under Section 11.
10.11 Collection of Funds Not Exclusive Remedy. The collection by City of any damages or
monies from the Security Fund shall not affect any other right or remedy available to City, nor
shall any act, or failure to act, by City pursuant to the Security Fund, be deemed a waiver of any
right of City pursuant to this Franchise or otherwise. Notwithstanding this section, however,
should the City elect to impose liquidated damages, that remedy shall remain the City’s exclusive
remedy for the one hundred twenty (120) Day period set forth in Section 10.5.
SECTION 11 VIOLATION PROCEDURE
11.1 Basis for Violation. City or Commission shall give written notice to Grantee if City, in
its sole discretion, determines that Grantee has:
(a) Violated any material provision of this Franchise or the acceptance hereto;
(b) Violated any law, ordinance, rule, order, regulation or determination of the City,
state or federal government, not in conflict with this Franchise;
(c) Attempted to evade any provision of this Franchise or the acceptance hereof;
(d) Practiced any fraud or deceit upon City or Subscribers;
(e) Made a material misrepresentation of fact in the application for or negotiation of
this Franchise; or
11.2 Violation Procedure. The written notice shall describe in reasonable detail the alleged
violation so as to afford Grantee an opportunity to remedy the violation.
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(a) Grantee shall have thirty (30) Days subsequent to receipt of the notice in which to
correct the violation (or if such violation is of such a character as to require more than thirty
(30) Days within which to cure the same, and Grantee fails to commence to cure the same
within said thirty (30) Day period and thereafter fails to use reasonable diligence, in City’s
sole opinion, to cure such violation as soon as possible).
(b) Grantee may, within ten (10) Days of receipt of notice, notify the City that there is
a dispute as to whether a violation or failure has, in fact, occurred. Such notice by Grantee
shall specify with particularity the matters disputed by Grantee and shall stay the running
of the above-described time until the Commission or City issues final findings of fact with
respect to the violation. However, all penalties shall accrue from the date of the notice of
violation until the Commission or City issues final findings of fact with respect to the
violation.
(c) The City or Commission shall hear Grantee’s dispute at the next regularly
scheduled or specially scheduled meeting. Grantee shall have the right to speak and
introduce evidence. The City or Commission shall determine whether Grantee has
committed a violation and shall make written findings of fact relative to its determination.
(d) If after hearing the dispute, the violation is upheld by the City or Commission, then
Grantee shall have thirty (30) Days within which to remedy the violation.
(e) If Grantee fails to cure the violation within thirty (30) Days, such violation shall be
a substantial breach and City may elect to terminate the Franchise, or establish and draw
on the Bond or Security Fund as provided in Sections 9 or 10.
(f) The City may place the issue of termination of this Franchise before the governing
body of City at a regular meeting. If City decides there is cause or reason to terminate, the
following procedure shall be followed:
(i) City shall provide Grantee with a written notice of the reason or cause for
proposed termination and shall allow Grantee a minimum of thirty (30) Days
subsequent to receipt of the notice in which to correct the violation.
(ii) Grantee shall be provided with an opportunity to be heard at a public hearing
prior to any decision to terminate this Franchise.
(iii) If, after notice is given and an opportunity to cure, at Grantee’s option, a
public hearing is held, and the City determines there was a violation, breach, failure,
refusal or neglect, the City may declare by resolution the Franchise terminated and
of no further force and effect unless there is compliance within such period as the
City may fix, such period may not be less than thirty (30) Days. No opportunity
for compliance need be granted for fraud or misrepresentation.
11.3 Failure to Enforce. Grantee shall not be relieved of any of its obligations to comply
promptly with any provision of the Franchise by reason of any failure of the City to enforce prompt
compliance, and City’s failure to enforce shall not constitute a waiver of rights or acquiescence in
Grantee’s conduct.
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11.4 Compliance with the Laws.
(a) If any federal or state law or regulation shall require or permit City or Grantee to
perform any service or act or shall prohibit City or Grantee from performing any service
or act which may be in conflict with the terms of this Franchise, then as soon as possible
following knowledge thereof, either party shall notify the other of the point in conflict
believed to exist between such law or regulation. Grantee and City shall conform to state
laws and rules regarding cable communications not later than one (1) year after they
become effective, unless otherwise stated, and shall conform to federal laws and
regulations regarding cable as they become effective.
(b) If any term, condition or provision of this Franchise or the application thereof to
any Person or circumstance shall, to any extent, be held to be invalid or unenforceable, the
remainder hereof and the application of such term, condition or provision to Persons or
circumstances other than those as to whom it shall be held invalid or unenforceable shall
not be affected thereby, and this Franchise and all the terms, provisions and conditions
hereof shall, in all other respects, continue to be effective and complied with, provided the
loss of the invalid or unenforceable clause does not substantially alt er the agreement
between the parties. In the event such law, rule or regulation is subsequently repealed,
rescinded, amended or otherwise changed so that the provision which had been held invalid
or modified is no longer in conflict with the law, rules and regulations then in effect, said
provision shall thereupon return to full force and effect and shall thereafter be binding on
Grantee and City.
SECTION 12 FORECLOSURE AND RECEIVERSHIP
12.1 Foreclosure. Upon the foreclosure or other judicial sale of the Cable System, Grantee
shall notify the City of such fact and such notification shall be treated as a notification that a change
in control of Grantee has taken place, and the provisions of this Franchise governing the consent
to transfer or change in ownership shall apply without regard to how such transfer or change in
ownership occurred.
12.2 Receivership. The City shall have the right to cancel this Franchise subject to any
applicable provisions of state law, including the Bankruptcy Act, one hundred twenty (120) Days
after the appointment of a receiver or trustee to take over and conduct the business of Grantee,
whether in receivership, reorganization, bankruptcy or other action or proceeding, unless such
receivership or trusteeship shall have been vacated prior to the ex piration of said one hundred
twenty (120) Days, or unless:
(a) Within one hundred twenty (120) Days after his election or appointment, such
receiver or trustee shall have fully complied with all the provisions of this Franchise and
remedied all defaults thereunder; and,
(b) Such receiver or trustee, within said one hundred twenty (120) Days, shall have
executed an agreement, duly approved by the Court having jurisdiction in the premises,
whereby such receiver or trustee assumes and agrees to be bound by each and every
provision of this Franchise.
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SECTION 13 REPORTING REQUIREMENTS
13.1 Quarterly Reports. Within thirty (30) Days after the end of each calendar quarter, Grantee
shall submit to the City along with its Franchise Fee payment, a report showing the basis for
computation of the Franchise Fee and PEG Fee payments signed by an authorized represent ative
of Grantee in form and substance substantially equivalent to Exhibit D attached hereto. This report
shall separately indicate Grantee’s Gross Revenues within the City including, but not limited to
such items as listed in the definition of “Gross Revenues” at Section 1.22 of this Franchise.
Nothing in the Franchise Fee payment worksheet form set forth in Exhibit D shall be construed to
modify the definition of “Gross Revenues” set forth in Section 1.21 of this Franchise.
13.2 Monitoring and Compliance Reports. Upon request, but no more than once a year,
Grantee shall provide a written report of any and all FCC technical performance tests for the
residential network required in FCC Rules and Regulations as now or hereinafter constituted.
13.3 Monthly Subscriber Data Report. Every other month starting in January, Grantee shall
provide the City with a Subscriber data report consistent with the format set forth in Exhibit E
attached hereto. In the event technical or programming changes require changes to the format of
the report, the City and Grantee shall work in good faith to make such changes without the need
to amend this Franchise.
13.4 Other Reports. Upon request of the City and in no event later than thirty (30) Days from
the date of receipt of such request, Grantee shall, without charge, prepare and furnish to the City,
at the times and in the form prescribed, such additional reports with respect to its operation, affairs,
transactions, or property, as may be reasonably necessary to ensure compliance with the t erms of
this Franchise. Grantee and City may in good faith agree upon taking into consideration Grantee’s
need for the continuing confidentiality as prescribed herein. Neither City nor Grantee shall
unreasonably demand or withhold information requested pursuant with the terms of this Franchise.
13.5 Confidential and Trade Secret Information. Grantee acknowledges that information
submitted by Grantee to the City may be subject to the Minnesota Government Data Practices Act
(“MGDPA”) pursuant to Minn. Stat. Chapter 13. The Commission shall follow all Applicable
Laws and procedures for protecting any confidential and trade secret information of Grantee that
may be provided to Commission. Grantee acknowledges that the Commission shall at all times
comply with the Minnesota Data Practices Act (“MDPA”) related to the release of information
and nothing herein shall be read to modify the Commission’s obligations under the MDPA.
13.6 Communications with Regulatory Agencies.
(a) Upon written request (unless service of copies is otherwise mandated by Applicable
Law) Grantee shall submit to City copies or online links to copies of any pleading,
applications, notifications, communications and documents of any kind, submitted by
Grantee or its Affiliates to any federal, state or local courts, regulatory agencies and other
government bodies if such documents directly relate to the operations of Grantee’s Cable
System within the Franchise Area. Grantee shall submit such documents to City no later
than thirty (30) Days after receipt of City’s request. Grantee and City shall comply with
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all Applicable Law governing confidential, privileged or proprietary rights to such
documents.
(b) In addition, Grantee and its Affiliates, City and Commission shall, within ten (10)
Days of any communication to or from any judicial or regulatory agency regarding any
alleged or actual violation of this Franchise, City regulation or other requirement relating
to the System, use its best efforts to provide the other party a copy of the communication,
whether or not specifically requested to do so.
SECTION 14 CUSTOMER SERVICE POLICIES
14.1 Response to Customers and Cooperation with City and Commission. Grantee shall
promptly respond to all requests for service, repair, installation and information from Subscribers.
Grantee acknowledges the City’s interest in the prompt resolution of all cable complaints and shall
work in close cooperation with the City to resolve complaints. Grantee shall provide the
Commission and the City with the name, address and telephone number of an office that will act
as the Grantee’s agent to receive complaints, regarding quality of service, equipment malfunctions,
billings, and similar matters. Grantee will maintain an “escalated complaint process” to address
unresolved complaints from Subscribers. A team of specifically identified employees of Grantee
shall be available to the City and the Commission via email and telephone for reporting issues.
These specifically identified employees of Grantee will have the ability to take actions to resolve
Subscriber complaints relating to billing, property or service restoration, technical appointments,
or any other Subscriber matters when necessary. Grantee will follow-up with the City or the
Commission in writing by email (and by phone when necessary) with a summary of the results of
the complaint(s).
14.2 Customer Service Agreement and Written Information. Grantee shall provide to
Subscribers access to their service agreement and the following information if not included in the
service agreement:
(a) Services to be provided and rates for such services.
(b) Billing procedures.
(c) Service termination procedure.
(d) Change in service notifications.
(e) Converter/Subscriber terminal equipment policy.
(f) How complaints are handled including Grantee’s procedure for investigation and
resolution of Subscriber complaints.
(g) The name, address, and phone number of the Person identified by the City as
responsible for handling cable questions and complaints for the City. This information
shall be prominently displayed and Grantee shall submit the information to the City for
review and approval as to its content and placement on Subscriber billing statements. A
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copy of the written information shall be provided to each Subscriber at the time of initial
connection and any subsequent reconnection.
14.3 Customer Service Standards.
(a) The City hereby adopts the customer service standards set forth in Part 76, §76.309
of the FCC’s rules and regulations, as amended.
(b) Grantee shall provide City with information demonstrating Grantee’s compliance
with each and every term and provision of Section 14.5.
(c) Grantee shall comply in all respects with the customer service requirements
established by the FCC and those set forth herein. The City reserves the right to enact
additional consumer protection laws or requirements to the extent such requirements are
not inconsistent with, and preempted by, the FCC’s customer service standards.
14.4 Local Office. Grantee shall maintain a convenient local customer service and bill payment
location for matters such as receiving Subscriber payments, handling billing questions, equipment
replacement and customer service information.
14.5 Cable System office hours and telephone availability. Grantee shall comply with the
standards and requirements for customer service set forth below during the term of this Franchise.
(a) Grantee will maintain a local, toll-free telephone access line which will be available
to its Subscribers twenty-four (24) hours a Day, seven (7) days a week.
(i) Trained Grantee representatives will be available to respond to customer
telephone inquiries during Normal Business Hours.
(ii) The access line may be initially answered by an interactive voice response
system but a Subscriber, under Normal Operating Conditions, shall have the option
to speak to a trained Grantee representative during Normal Business Hours.
Inquiries received after Normal Business Hours must be responded to by a trained
Grantee representative on the next business day.
(b) Under Normal Operating Conditions, telephone answer time by a customer
representative, including wait time, shall not exceed thirty (30) seconds when the
connection is made. If the call needs to be transferred, transfer time shall not exceed thirty
(30) seconds. These standards shall be met no less than ninety percent (90%) of the time
under Normal Operating Conditions, measured on a quarterly basis.
(c) Grantee shall not be required to acquire equipment or perform surveys to measure
compliance with the telephone answering standards above unless an historical record of
complaints indicates a clear failure to comply.
(d) Under Normal Operating Conditions, the customer will receive a busy signal less
than three percent (3%) of the time.
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(e) Customer service center and bill payment locations will be open at least during
Normal Business Hours and will be conveniently located.
(f) The Grantee shall utilize such equipment and software and keep such records as are
necessary or required to enable the City and Commission to determine whether the Grantee
is complying with all telephone answering standards required by applicable customer
service regulations and laws, as amended from time to time. The Grantee shall provide the
Commission with a quarterly report documenting Grantee’s compliance with this Section
14.5 as is the current practice.
14.6 Installations, Outages and Service Calls. Under Normal Operating Conditions, each of
the following standards will be met no less than ninety-five percent (95%) of the time measured
on a quarterly basis:
(a) Standard Installations will be performed within seven (7) business days after an
order has been placed. “Standard” Installations are those that are located up to one hundred
twenty-five (125) feet from the existing distribution system as more specifically set forth
in Section 6.7(b).
(b) Excluding conditions beyond the control of Grantee, Grantee will begin working
on “service interruptions” promptly and in no event later than twenty-four (24) hours after
the interruption becomes known. Grantee must begin actions to correct other Service
problems the next business day after notification of the Service problem.
(c) The “appointment window” alternatives for installations, Service calls, and other
installation activities will be either a specific time or, at maximum, a four (4) hour time
block during Normal Business Hours. (Grantee may schedule Service calls and other
installation activities outside of Normal Business Hours for the express convenience of the
customer.)
(d) Grantee may not cancel an appointment with a customer after the close of business
on the business day prior to the scheduled appointment.
(e) If Grantee’s representative is running late for an appointment with a customer and
will not be able to keep the appointment as scheduled, the customer will be contacted. The
appointment will be rescheduled, as necessary, at a time which is convenient for the
customer.
14.7 Communications between Grantee and Subscribers.
(a) Refunds. Refund checks will be issued promptly, but no later than either:
(i) The customer’s next billing cycle following resolution of the request or
thirty (30) Days, whichever is earlier, or
(ii) The return of the equipment supplied by Grantee if Cable Service is
terminated.
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(b) Credits. Credits for Cable Service will be issued no later than the customer’s next
billing cycle following the determination that a credit is warranted.
14.8 Billing:
(a) Consistent with 47 C.F.R. § 76.1619, bills will be clear, concise and
understandable. Bills must be fully itemized, with itemizations including, but not limited
to, Basic Cable Service and premium Cable Service charges and equipment charges. Bills
will also clearly delineate all activity during the billing period, including optional charges,
rebates and credits.
(b) In case of a billing dispute, Grantee must respond to a written complaint from a
Subscriber within thirty (30) Days.
14.9 Subscriber Information.
(a) Grantee will provide Subscribers access to the following information at any time:
(i) Products and Services offered;
(ii) Prices and options for programming services and conditions of subscription
to programming and other services;
(iii) Installation and Service maintenance policies;
(iv) Instructions on how to use the Cable Service;
(v) How to find or purchase programming carried on the System;
(vi) Billing and complaint procedures, including the address and telephone
number of the Commission’s office; and
(vii) A copy of its refund policy for Cable Services.
(b) Subscribers shall be advised of the procedures for resolution of complaints about
the quality of the television signal delivered by Grantee, including contact information for
the City and the Commission. Subscribers will be notified of any changes in rates or
programming or Channel positions as soon as possible in writing. Notice must be given to
Subscribers a minimum of thirty (30) Days in advance of such changes if the change is
within the control of Grantee. In addition, Grantee shall notify Subscribers thirty (30) Days
in advance of any significant changes in the information required by this Section 14.9.
14.10 Notice of Rate or Programming Changes. Grantee shall give thirty (30) Days written
notice to both Subscribers and the City before implementing any rate or Service change within the
control of Grantee. For the purpose of this section a “Service change” shall not include channel
additions or moves that do not impact rates. Such notice shall state the precise amount of any rate
change and briefly explain in readily understandable fashion the cause of the rate change. When
the change involves the deletion of Channels, each Channel deleted must be separately identified.
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14.11 Subscriber Contracts. Grantee shall, upon written request, provide the Commission with
any standard form residential Subscriber contract utilized by Grantee. If no such written contract
exists, Grantee shall file with the City a document completely and concisely stating the length and
terms of the Subscriber contract offered to customers. Grantee shall provide City a list of Grantee’s
current Subscriber rates and charges for Cable Service and a current Channel line-up showing all
Channels available in the City. Grantee shall also provide on a monthly basis a copy of a sample
Subscriber Bill to the Commission.
14.12 Refund Policy. If a Subscriber’s Cable Service is interrupted or discontinued, without
cause, for twenty-four (24) or more consecutive hours, Grantee shall, upon request by the
Subscriber, credit such Subscriber pro rata for such interruption. For this purpose, every month
will be assumed to have thirty (30) Days.
14.13 Late Fees. Grantee shall comply with all applicable state and federal laws with respect to
any assessment, charge, cost, fee or sum, however characterized, that Grantee imposes upon a
Subscriber for late payment of a bill. The City reserves the right to enforce Grantee’s compliance
with all Applicable Laws to the maximum extent legally permissible.
14.14 Disputes. All Subscribers and members of the general public may direct complaints,
regarding Grantee’s Service or performance to the chief administrative officer of the City or the
chief administrative officer’s designee, which may be a board or a commission of the City.
14.15 Subscriber Bills. Subscriber bills shall be designed in such a way as to present the
information contained therein clearly and comprehensibly to Subscribers, and in a way that (A) is
not misleading and (B) does not omit material information. Grantee may, in its sole discretion,
consolidate costs on Subscriber bills as may otherwise be permitted by Section 622(c) of the Cable
Act (47 U.S.C. § 542(c)).
14.16 Failure to Resolve Complaints. Grantee shall resolve a complaint within thirty (30) Days
in a manner deemed reasonable by the City under the terms of the Franchise.
14.17 Notification of Complaint Procedure. Grantee shall have printed clearly and
prominently on each Subscriber bill and in the customer service agreement provided for in Section
14.2, the twenty-four (24) hour Grantee phone number for Subscriber complaints. Additionally,
Grantee shall provide information to customers concerning the procedures to follow when they are
unsatisfied with measures taken by Grantee to remedy their complaint. This information will
include the phone number of the City office or Person designated to handle complaints.
Additionally, Grantee shall state that complaints should be made to Grantee prior to contacting the
City.
14.18 Subscriber Privacy.
(a) To the extent required by Minn. Stat. § 238.084 Subd. 1(s) Grantee shall comply
with the following:
(i) No signals including signals of a Class IV Channel may be transmitted from
a Subscriber terminal for purposes of monitoring individual viewing patterns or
practices without the express written permission of the Subscriber. The request for
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permission must be contained in a separate document with a prominent statement
that the Subscriber is authorizing the permission in full knowledge of its provisions.
Such written permission shall be for a limited period of time not to exceed one (1)
year which may be renewed at the option of the Subscriber. No penalty shall be
invoked for a Subscriber’s failure to provide or renew such permission. The
permission shall be revocable at any time by the Subscriber without penalty of any
kind whatsoever.
(ii) No information or data obtained by monitoring transmission of a signal
from a Subscriber terminal, including but not limited to lists of the names and
addresses of Subscribers or any lists that identify the viewing habits of Subscribers
shall be sold or otherwise made available to any party other than to Grantee or its
agents for Grantee’s business use, and also to the Subscriber subject of that
information, unless Grantee has received specific written permission from the
Subscriber to make such data available. The request for permission must be
contained in a separate document with a prominent statement that the Subscriber is
authorizing the permission in full knowledge of its provisions. Such written
permission shall be for a limited period of time not to exceed one (1) year which
may be renewed at the option of the Subscriber. No penalty shall be invoked for a
Subscriber’s failure to provide or renew such permission. The permission shall be
revocable at any time by the Subscriber without penalty of any kind whatsoever.
(iii) Written permission from the Subscriber shall not be required for the
conducting of system wide or individually addressed electronic sweeps for the
purpose of verifying System integrity or monitoring for the purpose of billing.
Confidentiality of such information shall be subject to the provision set forth in
subparagraph (ii) of this section.
14.19 Grantee Identification. Grantee shall provide all customer service technicians and all
other Grantee employees entering private property with appropriate picture identification so that
Grantee employees may be easily identified by the property owners and Subscribers.
SECTION 15 SUBSCRIBER PRACTICES
15.1 Subscriber Rates. There shall be no charge for disconnection of any installation or outlet.
If any Subscriber fails to pay a properly due monthly Subscriber fee, or any other properly due fee
or charge, Grantee may disconnect the Subscriber’s service outlet, provided, however, that such
disconnection shall not occur until after the later of: (i) forty-five (45) Days after the original due
date of said delinquent fee or charge; or (ii) ten (10) Days after delivery to Subscriber of written
notice of the intent to disconnect. If a Subscriber pays before expiration of the later of (i) or (ii),
Grantee shall not disconnect. After disconnection, upon payment in full of the delinquent fee or
charge and the payment of a reconnection charge, Grantee shall promptly reinstate the Subscriber’s
Cable Service.
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15.2 Refunds to Subscribers shall be made or determined in the following manner:
(a) If Grantee fails, upon request by a Subscriber, to provide any service then being
provided to the Subscriber, Grantee shall promptly refund all deposits or advance charges
paid for the service in question by said Subscriber. This provision does not alter Grantee’s
responsibility to Subscribers under any separate contractual agreement or relieve Grantee
of any other liability that may be available under Applicable Law.
(b) If any Subscriber terminates any monthly service because of failure of Grantee to
render the service in accordance with this Franchise, Grantee shall refund to such
Subscriber the proportionate share of the charges paid by the Subscriber for the services
not received. This provision does not relieve Grantee of liability established in other
provisions of this Franchise.
SECTION 16 COMPENSATION AND FINANCIAL PROVISIONS
16.1 Franchise Fees. During the term of the Franchise, Grantee shall pay quarterly to the City
or its delegate a Franchise Fee in an amount equal to five percent (5%) of its quarterly Gross
Revenues. If any such law, regulation or valid rule alters the five percent (5%) Franchise Fee
ceiling established by the Cable Act, then the City shall have the authority to (but shall not be
required to) increase the Franchise Fee accordingly, provided such increase is for purposes not
inconsistent with Applicable Law.
(a) Franchise Fees shall be paid quarterly not later than forty-five (45) Days following
the end of each quarter. Grantee shall include with each quarterly payment a Franchise
Fee payment worksheet, in form and substance substantially similar to Exhibit D, signed
by an authorized representative of Grantee. No acceptance of any payment shall be
construed as an accord that the amount paid is in fact, the correct amount, nor shall such
acceptance of payment be construed as a release of any claim which the City may have for
further or additional sums payable under the provisions of this section.
(b) Neither current nor previously paid Franchise Fees shall be subtracted from the
Gross Revenue amount upon which Franchise Fees are calculated and due for any period,
unless otherwise required by Applicable Law.
(c) Any Franchise Fees owing pursuant to this Franchise which remain unpaid after
the due dates specified herein shall be delinquent and shall immediately begin to accrue
interest at twelve percent (12%) per annum or two percent (2%) above prime lending rate
as quoted by the Wall Street Journal, whichever is greater.
16.2 Auditing and Financial Records. Throughout the term of this Franchise, the Grantee
agrees that the City or its designee, upon reasonable prior written notice of twenty (20) Days to
the Grantee, may review such of the Grantee’s books and records regarding the operation of the
Cable System and the provision of Cable Service in the Franchise Area which are reasonably
necessary to monitor and enforce Grantee’s compliance with the provisions of this Franchise.
Grantee shall provide such requested information as soon as possible and in no event more than
twenty (20) Days unless Grantee explains that it is not feasible to meet this timeline and provides
a written explanation for the delay and an estimated reasonable date for when such information
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will be provided. All such documents pertaining to financial matters that may be the subject of an
inspection by the City shall be retained by the Grantee for a minimum period of seven (7) years,
pursuant to Minn. Stat. § 541.05. The Grantee shall not deny the City access to any of the Grantee’s
records on the basis that the Grantee’s records are under the control of any parent corporation,
affiliated entity or a third party. The City may request in writing copies of any such records or
books that are reasonably necessary, and the Grantee shall provide such copies within thirty (30)
Days of the receipt of such request. One (1) copy of all reports and records required under this or
any other section shall be furnished to the City at the sole expense of the Grantee. If the requested
books and records are too voluminous, or for security reasons cannot be copied or removed, then
the Grantee may request, in writing within ten (10) Days of receipt of such request, that the City
inspect them at the Grantee’s local offices or at one of Grantee’s offices more convenient to City
or its duly authorized agent. If any books or records of the Grantee are not kept in such office and
not made available in copies to the City upon written request as set forth above, and if the City
determines that an examination of such records is necessary for the enforcement of this Franchise,
then all reasonable travel expenses incurred in making such examination shall be paid by the
Grantee.
16.3 Review of Record Keeping Methodology. Upon request, Grantee agrees to meet with a
representative of the City or its designee to review its methodology of record-keeping, financial
reporting, computing Franchise Fee obligations, and other procedures the understanding of which
the City deems necessary for understanding the meaning of reports and records.
16.4 Audit of Records. The City or its authorized agent may at any time and at the City’s own
expense conduct an independent audit of the revenues of Grantee in order to verify the accuracy
of Franchise Fees or PEG Fees paid to the City. Grantee and each parent company of Grantee
shall cooperate fully in the conduct of such audit. In the event it is determined through such audit
that Grantee has underpaid Franchise Fees in an amount of five percent (5%) or more than was
due the City, then Grantee shall reimburse the City for the entire cost of the audit within thirty (30)
Days of the completion and acceptance of the audit by the City.
16.5 Records to be reviewed. The City agrees to request access to only those books and
records, in exercising its rights under this section, which it deems reasonably necessary for the
enforcement and administration of the Franchise.
16.6 Indemnification by Grantee. Grantee shall, at its sole expense, fully indemnify, defend
and hold harmless the City and Commission, and in their capacity as such, the officers, agents and
employees thereof (collectively the “Indemnified Parties”), from and against any and all claims,
suits, actions, demands, liability and judgments for damage or otherwise except those arising
wholly from negligence on the part of the Indemnified Parties; for actual or alleged injury to
Persons or property, including loss of use of property due to an occurrence, whether or not such
property is physically damaged or destroyed, in any way arising out of or through or alleged to
arise out of or through the acts or omissions of Grantee or its officers, agents, employees, or
contractors or to which Grantee’s or its officers, agents, employees or contractors acts or omissions
in any way contribute, and whether or not such acts or omissions were authorized or contemplated
by this Franchise or Applicable Law; arising out of or alleged to arise out of any claim for damages
for Grantee’s invasion of the right of privacy, defamation of any Person, firm or corporation, or
the violation of infringement of any copyright, trademark, trade name, service mark or patent, or
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of any other right of any Person, firm or corporation; arising out of or alleged to arise out of
Grantee’s failure to comply with the provisions of any Applicable Law. Nothing herein shall be
deemed to prevent the Indemnified Parties from participating in the defense of any litigation by
their own counsel at such parties’ expense. Such participation shall not under any circumstances
relieve Grantee from its duty of defense against liability or of paying any judgment entered against
the Indemnified Parties.
16.7 Grantee Insurance. Upon the Effective Date, Grantee shall, at its sole expense take out
and maintain during the term of this Franchise public liability insurance with a company licensed
to do business in the State of Minnesota with a rating by A.M. Best & Co. of not less than “A -”
that shall protect the Grantee, City and its officials, officers, directors, employees and agents from
claims which may arise from operations under this Franchise, whether such operations be by the
Grantee, its officials, officers, directors, employees and agents or any subcontractors of Grantee.
This liability insurance shall include, but shall not be limited to, protection against claims arising
from bodily and personal injury and damage to property, resulting from Grantee’s vehicles,
products and operations. The amount of insurance for single limit coverage applying to bodily
and personal injury and property damage shall not be less than Three Million Dollars ($3,000,000).
The liability policy shall include:
(a) The policy shall provide coverage on an “occurrence” basis.
(b) The policy shall cover personal injury as well as bodily injury.
(c) The policy shall cover blanket contractual liability subject to the standard universal
exclusions of contractual liability included in the carrier’s standard endorsement as to
bodily injuries, personal injuries and property damage.
(d) Broad form property damage liability shall be afforded.
(e) City and Commission shall be named as an additional insured on the policy.
(f) An endorsement shall be provided which states that the coverage is primary
insurance with respect to claims arising from Grantee’s operations under this Franchise
and that no other insurance maintained by the City will be called upon to contribute to a
loss under this coverage.
(g) Standard form of cross-liability shall be afforded.
(h) An endorsement stating that the policy shall not be canceled without thirty (30)
Days’ notice of such cancellation given to City.
(i) City reserves the right to adjust the insurance limit coverage requirements of this
Franchise no more than once every three (3) years. Any such adjustment by City will be
no greater than the increase in the State of Minnesota Consumer Price Index (all
consumers) for such three (3) year period.
(j) Upon the Effective Date, Grantee shall submit to City a certificate documenting the
required insurance, as well as any necessary properly executed endorsements. The
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certificate and documents evidencing insurance shall be in a form acceptable to City and
shall provide satisfactory evidence that Grantee has complied with all insurance
requirements. Renewal certificates shall be provided to City prior to the expiration date of
any of the required policies. City will not be obligated, however, to review such
endorsements or certificates or other evidence of insurance, or to advise Grantee of any
deficiencies in such documents and receipt thereof shall not relieve Grantee from, nor be
deemed a waiver of, City’s right to enforce the terms of Grantee’s obligations hereunder.
City reserves the right to examine any policy provided for under this paragraph or to require
further documentation reasonably necessary to form an opinion regarding the adequacy of
Grantee’s insurance coverage.
SECTION 17 MISCELLANEOUS PROVISIONS
17.1 Posting and Publication. Grantee shall assume the cost of posting and publication of this
Franchise as such posting and publication is required by law and such is payable upon Grantee’s
filing of acceptance of this Franchise.
17.2 Guarantee of Performance. Grantee agrees that it enters into this Franchise voluntarily
in order to secure and in consideration of the grant from the City of a ten (10) year Franchise.
Performance pursuant to the terms and conditions of this Franchise is guaranteed by Grantee.
17.3 Entire Agreement. This Franchise contains the entire agreement between the parties,
supersedes all prior agreements or proposals except as specifically set forth herein.
17.4 Consent. Wherever the consent or approval of either Grantee or the City is specifically
required in this agreement, such consent or approval shall not be unreasonably withheld.
17.5 Prior Franchise Terminated. The cable television franchise originally granted by
Ordinance No. is hereby terminated. Nothing herein shall serve to waive any rights the
parties may have under Ordinance No. regarding: 1) the payment of franchise fees
and PEG fees; and 2) Grantee’s compliance with all applicable City Code obligations governing
Grantee’s facilities in Streets.
17.6 Franchise Acceptance. No later than thirty (30) Days following City Council approval of
this Franchise, Grantee shall execute and return to the City three (3) original franchise agreements.
The executed agreements shall be returned to the City accompanied by performance bonds,
security funds, and evidence of insurance, all as provided in this Franchise. In the event Grantee
fails to provide the required executed Franchise, insurance certificate as required by Section 16(j)
and the Bond, this Franchise shall be null and void. The Grantee agrees that despite the fact that
its written acceptance may occur after the Effective Date, the obligations of this Franchise shall
become effective on the Effective Date.
17.7 Amendment of Franchise. Grantee and City may agree, from time to time, to amend this
Franchise. Such written amendments may be made to address technology changes or advances
subsequent to a review session pursuant to Section 2.6 or at any other time if City and Grantee
agree that such an amendment will be in the public interest or if such an amendment is required
due to changes in federal, state or local laws; provided, however, nothing herein shall restrict City’s
exercise of its police powers.
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17.8 Notice. All notices, reports, or demands required to be given in writing under this
Franchise shall be deemed to be given when delivered personally to any officer of the Grantee or
the City’s administrator of this Franchise during Normal Business Hours or forty-eight (48) hours
after it is deposited in the United States mail in a sealed envelope, with registered or certified mail
postage prepaid thereon, addressed to the party to whom notice is being given, as follows:
If to City: City Administrator
City of
If to Commission: Executive Director
Northern Dakota County Cable Communications Commission
5845 Blaine Avenue
Inver Grove Heights, MN 55076
If to Grantee: General Manager
Comcast
10 River Park Plaza
St. Paul, MN 55107
Such addresses may be changed by either party upon notice to the other party given as provided in
this section.
Recognizing the widespread usage and acceptance of electronic forms of communication, emails
will be acceptable as formal notification related to the conduct of general business amongst the
parties to this contract, including but not limited to programming and price adjustment
communications required under section 14.12. Such communication should be addressed and
directed to the Person of record as specified above.
17.9 Force Majeure. In the event that either party is prevented or delayed in the performance
of any of its obligations, under this Franchise by reason of acts of God, floods, fire, hurricanes,
tornadoes, earthquakes, or other unavoidable casualties, insurrection, war, riot, vandalism, strikes,
delays in receiving permits where it is not the fault of Grantee, public easements, sabotage, acts or
omissions of the other party, or any other similar event beyond the reasonable control of that party,
it shall have a reasonable time under the circumstances to perform such obligation under this
Franchise, or to procure a substitute for such obligation to the reasonable satisfaction of the othe r
party.
17.10 Work of Contractors and Subcontractors. Work by contractors and subcontractors is
subject to the same restrictions, limitations and conditions as if the work were performed by
Grantee. Grantee shall be responsible for all work performed by its contractors and subcontractors,
and others performing work on its behalf as if the work were performed by it and shall ensure that
all such work is performed in compliance with this Franchise, the City Code and other Applicable
Law, and shall be jointly and severally liable for all damages and correcting all damage caused by
them. It is Grantee’s responsibility to ensure that contractors, subcontractors or other Persons
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performing work on Grantee’s behalf are familiar with the requirements of this Franchise, the City
Code and other Applicable Laws governing the work performed by them.
17.11 Governing Law. This Franchise is made pursuant to Minnesota Statutes Chapter 238 and
the City Code and is intended to comply with all requirements set forth therein. This Franchise
shall be deemed to be executed in the State of Minnesota, and shall be governed in all respects,
including validity, interpretation and effect, and construed in accordance with, the laws of the State
of Minnesota, as applicable to contracts entered into and performed entirely within the State.
17.12 Commission. In the event the City lawfully withdraws from the Commission, any
reference to the Commission in this Franchise shall thereafter be deemed a reference to the City
and the rights and obligations related thereto shall, where possible, accrue to the City unless or
until a new franchise is executed between Grantee and City. Nothing herein shall in any way
modify or alter any rights or obligations the City or Commission may have under the Amended
Joint and Cooperative Agreement between the parties.
17.13 Nonenforcement by City. Grantee shall not be relieved of its obligation to comply with
any of the provisions of this Franchise by reason of any failure of the City or to enforce prompt
compliance.
17.14 Captions. The paragraph captions and headings in this Franchise are for convenience and
reference purposes only and shall not affect in any way the meaning of interpretation of this
Franchise.
17.15 Calculation of Time. Where the performance or doing of any act, duty, matter, payment
or thing is required hereunder and the period of time or duration for the performance is prescribed
and fixed herein, the time shall be computed so as to exclude the first and include the last Day of
the prescribed or fixed period or duration of time. When the last Day of the period falls on
Saturday, Sunday or a legal holiday that Day shall be omitted from the computation and the next
business Day shall be the last Day of the period.
17.16 No Waiver. All rights and remedies given to the City by this Franchise or retained by the
City herein shall be in addition to and cumulative with any and all other rights and remedies,
existing or implied, now or hereafter available to the City, at law or in equity, and such rights and
remedies shall not be exclusive, but each and every right and remedy specifically given by this
Franchise or otherwise existing or given may be exercised from time to time and as often and in
such order as may be deemed expedient by the City and the exercise of one or more rights or
remedies shall not be deemed a waiver of the right to exercise at the same time or thereafter any
other right or remedy.
17.17 Grantee Acknowledgment of Validity of Franchise. Grantee acknowledges that it has
had an opportunity to review the terms and conditions of this Franchise and that under current law
Grantee believes that said terms and conditions are not unreasonable or arbitrary, and that Grantee
believes the City has the power to make the terms and conditions contained in this Franchise.
17.18 Survival of Terms. Upon the termination or forfeiture of the Franchise, Grantee shall no
longer have the right to occupy the Streets for the purpose of providing Cable Service. However,
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Grantee’s obligations to the City (other than the obligation to provide service to Subscribers) shall
survive according to their terms.
17.19 Competitive Equity.
(a) The City reserves the right to grant additional franchises or similar authorizations
to provide Video Programming services via Cable Systems or other Wireline MVPDs. The
City intends to treat Wireline MVPDs in a nondiscriminatory manner to the extent
permissible under Applicable Law. If, following the Effective Date of this Franchise, the
City grants such an additional franchise or authorization to a Wireline MVPD and Grantee
believes the City has done so on terms materially more favorable than the obligations under
this Franchise, then the provisions of this Section 17.21 will apply.
(b) As part of this Franchise, the City and Grantee have mutually agreed upon the
following terms as a condition of granting the Franchise, which terms may place the
Grantee at a significant competitive disadvantage if not required of a Wireline MVPD: the
obligation to pay to the City a Franchise Fee, Gross Revenues as provided for and defined
in this Franchise, and the obligation to comply with the requirements in this Franchise
regarding PEG funding, PEG Channels, records and reports, security instruments, audits,
dispute resolution, remedies, notice and opportunity to cure, and customer service
obligations (hereinafter “Material Obligations”). The City and Grantee further agree that
this provision shall not require a word for word identical franchise or authorization for
competitive equity so long as the regulatory and financial burdens on each entity are
materially equivalent.
(c) Within one (1) year of the adoption of a Wireline MVPD franchise or similar
authorization, Grantee must notify the City in writing of the Material Obligations in this
Franchise that Grantee believes exceed the Material Obligations of the wireline
competitor’s franchise or similar authorization. The City and Grantee agree that they will
use best efforts in good faith to negotiate Grantee’s proposed Franchise modifications, and
that such negotiation will proceed and conclude within a ninety (90) Day time period,
unless that time period is reduced or extended by mutual agreement of the parties. If the
City and Grantee reach agreement on the Franchise modifications pursuant to such
negotiations, then the City shall amend this Franchise to include the modifications. If the
City and Grantee fail to reach agreement in such negotiations, Grantee may, at its option,
elect to replace this Franchise by opting into the franchise or other similar lawful
authorization that the City grants to another Wireline MVPD (with the understanding that
Grantee may use its current system design and technology infrastructure to meet any
requirements of the new franchise), so as to ensure that the regulatory and financial burdens
on each entity are equivalent. If Grantee so elects, the City shall immediately commence
proceedings to replace this Franchise with the franchise issued to the other Wireline
MVPD. Notwithstanding anything contained in this section to the contrary, the City shall
not be obligated to amend or replace this Franchise unless the new entrant makes Cable
Services or similar downstream video programming service available for purchase by
Subscribers or customers under its franchise agreement with or similar authorization from
the City.
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(d) In the event the City disputes that the Material Obligations are different, Grantee
may bring an action in federal or state court for a determination as to whether the Material
Obligations are different and as to what franchise amendments would be necessary to
remedy the disparity. Alternatively, Grantee may notify the City that it elects to
immediately commence the renewal process under 47 U.S.C. § 546 and to have the
remaining term of this Franchise shortened to not more than thirty (30) months.
(e) Nothing in this Section 17.21 is intended to alter the rights or obligations of either
party under applicable federal or state law, and it shall only apply to the extent permitted
under Applicable Law and FCC orders. In no event will the City be required to refund or
to offset against future amounts due the value of benefits already received.
(f) To the extent the City has legal authority to grant a franchise or similar
authorization to a wireless provider of Cable Service, the competitive equity rights
provided by this section shall apply with respect to Material Obligations imposed in such
franchise or other similar agreement. In the event of a dispute regarding the City’s legal
authority, Grantee shall have the burden to demonstrate that such authority exists.
17.20 Treatment of negotiated provisions.
In consideration of the City and the Commission relinquishing any claim, title or right to
certain obligations set forth in the cable television franchise originally granted by
Ordinance No.___, Grantee agrees that for the term of this Franchise any costs incurred
by Grantee pursuant to Sections 7.2(g), 7.5(c), 7.8, 7.9, 7.10, 7.12, 7.14, 7.15, 7.16, 13.1,
13.2, 13.3, and 13.4 shall be treated by Grantee as Grantee’s business expense and not a
Franchise Fee under Sections 1.19 and 16.1 of this Franchise or as a PEG Fee under
Section 7.13 of this Franchise. Grantee reserves any rights it may have to recover from
Subscribers, as a separate line item from the PEG Fee in Section 7.13 of this Franchise,
any PEG capital costs set forth in Section 7.2(g), 7.8, 7.9, 7.10, 7.11, 7,15 and 7.16 as
may be permitted by Applicable Law as of the Effective Date.
Passed and adopted this day of 2020.
ATTEST CITY OF , MINNESOTA
By: By:
Its: City Clerk Its: Mayor
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ACCEPTED: This Franchise is accepted, and we agree to be bound by its terms and conditions.
COMCAST OF ST. PAUL, INC.
Date: By:
Its:
SWORN TO BEFORE ME this
___ day of ___________, 2020.
NOTARY PUBLIC
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Exhibit A
SD/HD PEG Channel Numbers
Channel Name SD Channel # HD Channel #
1. Community 14
2. Public Access 15
3. Multifaith Access 16
4. Government 18 799
5. Government 19 859
6. Education 20
7. Community Bulletin Board 21
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Exhibit B
Delivery of live and recorded programming to and from below listed entities on C-RAN
1. MCN 6 (1 receive ch and 1 send ch)
2. St. Paul (2 receive ch and 1 send ch)
3. Eagan (3 receive ch and 1 send ch)
4. Burnsville (1 receive ch)
5. Bloomington (1 receive ch)
6. CCX (1 receive ch)
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Exhibit C
PEG Monitoring
NAME ADDRESS
1. Inver Grove Heights City Hall 8150 Barbara Avenue, Inver Grove Heights, MN 55077
2. Mendota Heights City Hall 1101 Victoria Curve, Mendota Heights, MN 55118
3. NDC4 Commission and Town Square TV 5845 Blaine Avenue, Inver Grove Heights, MN 55076
4. South St. Paul City Hall 125 3rd Avenue, South St. Paul, MN 55075
5. West St. Paul City Hall 1616 Humboldt Avenue, West St. Paul, MN 55118
PEG Transport
NAME ADDRESS
1. Inver Grove Heights City Hall 8150 Barbara Avenue, Inver Grove Heights, MN 55077
2. Mendota Heights City Hall 1101 Victoria Curve, Mendota Heights, MN 55118
3. NDC4 Commission and Town Square TV 5845 Blaine Avenue, Inver Grove Heights, MN 55076
4. South St. Paul City Hall 125 3rd Avenue, South St. Paul, MN 55075
5. West St. Paul City Hall 1616 Humboldt Avenue, West St. Paul, MN 55118
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[Comcast letterhead]
July 30, 2020
Northern Dakota County Cable Communications Commission
5845 Blaine Avenue
Inver Grove Heights, MN 55076
Dear Northern Dakota County Cable Communications Commission:
The purpose of this letter of agreement is to memorialize commitments between Comcast of St.
Paul, Inc. (“Comcast”) and the Northern Dakota County Cable Communications Commission
(“Commission”) that are in addition to the obligations contained in the renewal franchise
agreement to be adopted by the Commission’s seven member cities (hereinafter collectively, “the
Franchise”). These items set forth herein: 1) have been negotiated in good faith and mutually
agreed to by the parties as part of the informal franchise renewal process pursuant to 47 U.S.C.
546(h); 2) are provided by Comcast in consideration of the grant of the Franchise by the City; and
3) specifically relate to unique community needs that exist in the Commission and its member
cities. This letter of agreement shall become effective upon approval by the Commission.
1. Complimentary Cable Service to Public Buildings/Schools
a. Comcast and the Commission agree that under the FCC Section 621 Order
(currently pending appeal), complimentary accounts are not a condition of the renewed
franchise. Comcast will itemize fair market value price for all former complimentary
service locations (approximately 46 sites in Comcast’s current Franchise effective April
2000, attached as Exhibit A), which shall be at rates at or below the attached Comcast
municipal pricing sheet at Exhibit C (Comcast’s municipal pricing sheet to be attached as
Exhibit C), and shall be subject to Comcast’s regular, nondiscriminatory rate adjustments.
b. Commission/City or former Complimentary Service recipients (schools, libraries,
et al) have the right to choose to retain Cable Service at the rates listed on the municipal
pricing sheet or terminate Cable Service to their Location.
c. If the FCC Section 621 Order (Third Report and Order in MB Docket No. 05-311
adopted by the FCC on August 1, 2019) (herein “621 Order”) is stayed or overturned by
action of the FCC or through judicial review, and franchise-mandated complimentary
services to public buildings are no longer considered to be “franchise fees” under 47 USC
§542, then for the remaining Franchise term Commission/City may require Comcast to
provide complimentary basic Cable Service to the former Complimentary Service
Locations listed in Exhibit B.
2. Institutional Network – I-Net
a. The I-Net is not a condition of the renewed cable franchise. Comcast will wind
down its I-Net obligation as follows:
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i. Comcast will provide existing dark fiber connections (former I-Net fiber),
at no charge, from the Effective Date of the renewed franchise through the end of
calendar year 2020 (“Termination Date”), to the following locations:
(A) Four (4) Inver Grove Heights sites; and
(B) Two (2) West St. Paul sites.
ii. Comcast will provide exactly what is in place today under the former
franchise(s) (franchises adopted in the year 2000) to the above six (6) sites – no
managed services required by the cities/sites.
iii. In the event the Cities should experience unavoidable fiber construction
delays in 2020 (i.e. the COVID-19 crisis, weather, early winter frost, etc.) the
Commission shall have the option to extend the Termination Date for any of the
above locations. Any such extension of the Termination Date shall not extend
beyond October 31, 2021. If such an extension is required, the Commission shall
pay Comcast $330 per location for each additional month beyond the end of
calendar year 2020.
iv. But for any unavoidable construction dela ys for the six sites noted above,
Comcast is relieved of the obligation to serve all other existing I-Net sites as of
January 1, 2021 and shall have no further obligation to provide I-Net services.
v. The parties agree that Comcast shall not treat any costs incurred in
performing under this Paragraph 2 as franchise fees, and agree that this provision
is a reasonable way to come into compliance with the 621 Order as contemplated
in the FCC’s Order on Reconsideration of the 621 Order (¶5)(Released Feb. 11,
2020).
The terms and conditions of this letter agreement are binding upon the Commission and Comcast
and their successors and assigns. In the event Comcast seeks to transfer the Franchise to another
entity, Comcast agrees to require the new transferee to honor the terms of this side letter agreement
as a condition of such transfer. Enforcement of the terms of this letter agreement shall be consistent
with the enforcement procedures set forth in the Franchise.
Acknowledged and agreed to this day of , 2020.
Comcast of St. Paul, Inc. Northern Dakota County Cable
Communications Commission
By: By:
Its: Its:
Date: Date:
6312627v1
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EXHIBIT A
NDC4 COMCAST FRANCHISE EXHIBIT B-1 Effective April 2000 to present
(FORMER) SERVICE TO PUBLIC AND PRIVATE BUILDINGS
Dakota County
IN NDC SYSTEM
Inver Glen Library
8098 Blaine Avenue
Inver Grove Heights, MN 55076
Wentworth Library
199 East Wentworth Avenue
West St. Paul, MN 55118
Northern Service Center
(under construction)
5 West Mendota Road
page 157
ISD #199
Inver Grove Elementary School Pine Bend Elementary School
4100 East 66th Street 9875 Inver Grove Trail
Inver Grove Heights, MN 55076 Inver Grove Heights, MN 55076
Hilltop Elementary School South Grove Elementary School
3201 East 68th Street 7650 Clayton Avenue
Inver Grove Heights, MN 55076 Inver Grove Heights, MN 55076
Salem Hills Elementary School
5899 East Babcock Trail
Inver Grove Heights, MN 55076
ALL IN ONE COMPLEX
Inver Grove Middle School Simley Senior High School
8167 Cahill Avenue East 2920 East 80th Street
Inver Grove Heights, MN 55076 Inver Grove Heights, MN 55076
ISD #199 District Office
2990 80th Street East
Inver Grove Heights, MN 55076
page 158
Inver Grove Heights
Inver Grove Heights City Hall Inver Grove Heights Police Department
8150 Barbara Avenue 8150 Barbara Avenue
Inver Grove Heights, MN 55077 Inver Grove Heights, MN 55077
IGH Fire Department IGH Fire Department
2059 Upper 55th Street E 7015 Clayton Avenue
Inver Grove Heights, MN 55077 Inver Grove Heights, MN 55076
ISD #197
Henry Sibley High School Friendly Hills Middle School
1897 Delaware Avenue 701 Mendota Heights Road
Mendota Heights, MN 55118 Mendota Heights, MN 55118
Heritage Middle School Somerset Elementary School
121 West Butler Avenue 1355 Dodd Road
West St. Paul, MN 55118 Mendota Heights, MN 55118
Mendota Heights Elementary School Moreland Elementary School
1979 Summit Lane 217 West Moreland Avenue
Mendota Heights, MN 55118 West St. Paul, MN 55118
Garlough Elementary School
1740 Charlton Street
West St. Paul, MN 55118
West St. Paul
West St. Paul City Hall
1616 Humboldt Avenue
West St. Paul, MN 55118
page 159
South St. Paul
South St. Paul City Hall South St. Paul Public Library
125 3rd Avenue 106 3rd Avenue N.
South St. Paul, MN 55075 South St. Paul, MN 55075
Wakota Arena (School) South St. Paul Municipal
141 East 6th Street Airport (Fleming Field)
South St. Paul, MN 55075 520 Airport Road
South St. Paul, MN 55075
(shall be considered a subsequently designated
building pursuant to Section 6(2) of this Franchise)
Lilydale
Lilydale City Hall
855 Sibley Memorial Hwy
Lilydale, MN 555118
Sunfish Lake
Sites to be determined
Mendota
Sites to be determined
Mendota Heights
Mendota Heights City Hall Mendota Heights Police Department
1101 Victoria Curve 1101 Victoria Curve
Mendota Heights, MN 55118 Mendota Heights, MN 55118
Mendota Heights Fire Department
2121 Dodd Road
Mendota Heights, MN 55120
page 160
South St. Paul Schools
South St. Paul High School
700 2nd St. N.
South St. Paul, MN 55075
District Office
104 5th Ave. So.
South St. Paul, MN 55075
ECFE
1549 5th Ave. So.
South St. Paul, MN 55075
Lincoln Center
357 9th Ave. N.
South St. Paul, MN 55075
Kaposia Education Center
1225 1st Ave. So.
South St. Paul, MN 55075
ALC
151 6th St. E.
South St. Paul, MN 55075
page 161
Private Schools
Convent of the Visitation School Emanuel Lutheran School
2455 Visitation Drive 115 Crusader Avenue
Mendota Heights, MN 55120 West St. Paul, MN 55118
St. Croix Lutheran High School St. John Vianney School
1200 Oakdale Avenue 1815 Bromley Street
West St. Paul, MN 55118 South St. Paul, MN 55075
St. Joseph's School St. Michael's School
1138 Seminole Avenue 335 E. Hurley Street
West St. Paul, MN 55118 West St. Paul, MN 55118
St. Thomas Academy Holy Trinity School
949 Mendota Heights Road 745 - 6th Avenue S.
Mendota Heights, MN 55120 South St. Paul, MN 55075
Colleges
Inver Hills Community College
2500 East 80th Street
Inver Grove Heights, MN 55076
page 162
EXHIBIT B
LOCATION ADDRESS
City of IGH
FIRE DEPT, INVER GROVE HTS 7015 CLAYTON AVE APT 1
FIRE DEPT, IGH 3 2059 UPPER 55TH ST E
FIRE DEPT, NEW STATION 2 9200 COURTHOUSE BLVD 55077
CITY OF, INVER GROVE 8150 BARBARA AVE
ISD #199
ELEM SCHOOL, HILLTOP 3201 68TH ST E
MIDDLE SCHOOL, IGH 8167 CAHILL AVE
SCHOOL, SIMLEY HIGH 2920 80TH ST E
SCHOOL, PINE BEN 9875 INVER GROVE TRL
ELEM SCHOOL, SALEM 5899 BABCOCK TRL
LIBRARIES
LIBRARY, INVER GROVE 8098 BLAINE AVE
LIBRARY, S ST PAUL 106 3RD AVE N
LIBRARY, WEST ST. PAUL Wentworth Avenue
CABLE COMM, NDC 5845 BLAINE AVE APT 1
CABLE COMM, NDC 5845 BLAINE AVE APT 2
CITY HALL, LILYDALE 1011 SIBLEY MEMORIAL HWY
City of Mendota Heights
CITY HALL, MENDOTA HEIGHTS 1101 VICTORIA CURV
POLICE DEPT, MENDOTA HGTS 1101 VICTORIA CURV
FIRE DEPT, MENDOTA HGTS 2121 DODD RD
ISD #197
HIGH SCHOOL, HENRY SIBLEY 1897 DELAWARE AVE APT A
SCHOOL, MENDOTA 1979 SUMMIT LN
MIDDLE SCHO, FRIENDLY HILLS 701 MENDOTA HEIGHTS RD
MIDDLE SCHOOL, HERITAGE 121 BUTLER AVE W
ELEM SCHOOL, PAUL MORELAND 217 MORELAND AVE W
ELEM SCHOOL, GARLOUGH 1740 CHARLTON ST
SOMERSET ELEMENTARY SCHOOL 1355 DODD ROAD
SOUTH ST. PAUL SCHOOLS #6
SENIOR HIGH, S ST PAUL 700 2ND ST N
CENTER, KAPOSIA EDUCATION 1225 1ST AVE S
ELEMENTARY, LINCOLN CENTER 357 9TH AVE N
BUILDING, S ST PAUL ADMIN 104 5TH AVE S
City of SSP
CITY HALL, SSP 125 3RD AVE N
FIRE, S ST PAUL 310 MARIE AVE
POLICE DEPT, S ST PAUL 125 3RD AVE N APT B
MAINT BUILDING, S ST PAUL 400 RICHMOND ST W
page 163
LOCATION ADDRESS
City of WSP
CITY HALL, W ST PAUL 1616 HUMBOLDT AVE APT A
FIRE FIGHTERS, INTL ASSN OF 1616 HUMBOLDT AVE APT B
POLICE, WEST ST PAUL 1616 HUMBOLDT AVE
PUBLIC WORKS, W ST PAUL 403 MARIE AVE E
page 164
EXHIBIT C
BUSINESS BASIC
CABLE PRICING
BUSINESS SELECT
CABLE PRICING
BUSINESS SERVICE
EQUIPMENT & FEES
Currently $24.60 -
includes BTV Fee.
Currently $42.65 - includes
BTV and RSN Fees.
$9.95 per piece of equipment (DTA
or HD Box). $5.00 per account for
HD Service
page 165
page 166
page 167
Northern Dakota County Cable
Communications Commission (NDC4)
August 19, 2020
Brian T. Grogan, Esq.
(612) 877-5340
www.lawmoss.com
Comcast Franchise Renewal
page 168
What are we here to consider?
⚫After more than 5 years of effort
⚫NDC4 and Comcast agree on new cable franchise
⚫August 5, 2020
•NDC4 unanimously recommends Member Cities approve cable franchise
⚫Each of the Member Cities will consider franchise at City Council meeting(s)
▪Process may take additional 6 weeks to complete due to meeting schedules
▪If approved, Comcast executes the 7 franchises
page 169
Timeline –how did we get here?
April 2000
⚫Comcast franchise granted
August 2012
•Comcast requests renewal
•Formal and informal
2013 and 2014
•NDC4 comprehensive needs assessment
Early 2014
•NDC4 commences informal renewal negotiations
June 2014
•Comcast proposes to transfer franchise
page 170
Timeline
February 2015
•CenturyLink applies for competitive franchise
March 2015
•Initial term of Comcast franchise expires
•NDC4 Member Cities grant extension
•First of 6 extensions of franchise term
April 2015
•Comcast terminates transfer request
March 2016
•CenturyLink granted franchises
Informal renewal negotiations between NDC4 and Comcast
page 171
Comcast Formal Renewal
February 2018
•NDC4 directs staff to begin preparing “formal” renewal documents required under
the Cable Act
•NDC4 prepares a Needs Report which includes:
−Formal Needs Assessment Report
−Request for Formal Renewal Proposal
−Model Cable Television Franchise Ordinance
April 4, 2018 –Full NDC4 Cable Commission approves the Needs Report
August 15, 2018 -Comcast submitted its Formal Proposal to NDC4 in response to the
Needs Report
page 172
Comcast Formal Renewal
December 12, 2018
•NDC4 recommends that the Member Cities issue a preliminary assessment that
the Comcast Formal Proposal should be denied and the Comcast Franchise should
not be renewed
1st Quarter 2019
•Member Cities each voted to preliminarily deny Comcast’s Formal Proposal
•LMC –insurance trust –assigns John Baker as litigation attorney
•Administrative Law Judge assigned
•Informal settlement meetings continued to run parallel to formal legal process
page 173
FCC 621 Order
⚫Order Adopted –August 2, 2019
⚫Effective Date -September 26, 2019
⚫Reinterprets -35 year old Cable Act
⚫Appeal of FCC 621 Order
•NDC4 and many others are parties to legal challenge
•Decision on appeal not expected until spring of 2021, or later
page 174
FCC 621 Order
⚫Nonmonetary franchise obligations –potential offset from FF
⚫Valued at “fair market value”
−Includes, but not limited to:
•Free or discounted service to schools and public buildings
•“Maintenance and use” for PEG transport
−Does not include cost of construction
•Institutional networks
•Separate network serving cities and schools
•Operator allowed to charge FMV
page 175
FCC 621 Appeal
•Cities ask “court” to issue Stay –December 4, 2019
•At the request of the Cable Industry
−FCC issues Order on Reconsideration -February 11, 2020
▪Deletes the language favorable to cities re franchise renegotiations
−Appears to leave option for unilateral franchise fee deductions
•6th Circuit denied Stay request –March 19, 2020
•Final decision on merits of case unlikely before 2021
page 176
Side Letter Agreement
Service to public buildings
a)Impact by FCC 621 order
b)Comcast has option to charge schools and public buildings for cable service
c)If FCC order is overturned by Court -then complimentary service is restored.
Institutional Network
a)Comcast will wind down I-Net
b)Dark fiber through end of 2020
•4 Inver Grove Heights sites; and
•2 West St. Paul sites.
c)Possible extension to 10/31/21
d)$330 per location for each additional month beyond the end of calendar year 2020.
page 177
Key Terms of New Franchise
1.10 year term
2.5% Franchise Fee
a)Strong definition of “Gross Revenues”
b)Bundled services addressed
c)Payments due within 30 days of end of quarter –along with report showing computation
3.Competitive Equity
a)Protection for Comcast should cable service competitor enter market
4.City Code incorporated
a)ROW protections
b)Definition of “street”
c)Minnesota Rules referenced to address utility protections for ROW
page 178
Key Terms of New Franchise
5.Performance Bond -$100,000
6.Letter of Credit -$25,000
7.Streamlined Enforcement Procedure
8.Strong Customer Service Standards
a)FCC standards
b)Franchise obligations
c)Reporting obligations
i.Trade secret/confidentiality
ii.Subscriber statistics due 6 times per year (currently monthly)
iii.Telephone Service Level (TSL) due quarterly (currently monthly)
page 179
Key Terms of New Franchise
9.7 PEG Channels
a)Channel #s 14, 15, 16, 18, 19, 20 and 21
b)Within 90 days of effective date
i.5 SD and 2 HD PEG Channels provided
c)3rd HD PEG Channel provided January 1, 2022
i.Retain 5 SD PEG channels
d)Upon 5th anniversary
i.Comcast can provide 90 days notice
i.Commission gives back 1 SD PEG Channel
ii.Resulting in 4 SD and 3 HD PEG channels
e)If Comcast terminates SD channels and services
i.Comcast moves to all HD lineup
ii.After 90 days written notice to Commission
iii.Comcast will provide 4 HD channels
page 180
Key Terms of New Franchise
10.PEG Fee
a)2.25% of gross revenues
i.Existing PEG fee started at $.83 –currently $1.99
b)Payment due quarterly to NDC4
i.PEG Fee is over and above 5% franchise fee
c)PEG Fee to be used for PEG capital purposes
d)Comcast can recoup additional PEG capital separate from PEG fee line item
i.Consistent with federal Cable Act and FCC regulations
page 181
Key Terms of New Franchise
11.PEG issues
a)Transport and Interconnection
i.Other Twin Cities PEG stations by Prisma and C-RAN
ii.Satellite feeds
iii.Fiber backhaul for city halls
iv.Cable modem for truck
b)Technical quality
c)PEG monitoring –NDC4 office and 4 City Halls
page 182
Member City Consideration
⚫NDC4 recommends adoption of new cable franchise with Comcast
•Approval to execute side letter with Comcast.
⚫Each Member City must follow local ordinance adoption procedures
•Same process each City uses to adopt any City ordinance
•May require multiple readings
•May require public hearing
•May require publication following approval
•Summary will be prepared for publication
⚫Timing
•Comcast to execute once all cities have adopted
•“Effective Date” triggers certain new franchise obligations
page 183
Questions?
Brian T. Grogan, Esq.
Moss & Barnett, A Professional Association
150 South Fifth Street, Suite 1200
Minneapolis, MN 55402
(612) 877-5340 phone / (612) 877-5031 facsimile
E-mail: Brian.Grogan@lawmoss.com
Web site: www.lawmoss.com
page 184
Request for City Council Action
MEETING DATE: September 1, 2020
TO: Mayor Garlock and City Council, City Administrator McNeill
FROM: Tim Benetti, Community Development Director
SUBJECT: Resolution No. 2020-53 Approving a Preliminary and Final Plat
of MENDOTA HEIGHTS SENIOR LIVING (Planning Case No. 2020-16)
Introduction
City Council is asked to consider adopting a resolution approving a combined preliminary and final plat of
a new subdivision to be titled “MENDOTA HEIGHTS SENIOR LIVING”. The applicant is Grand Real
Estate Advisors (GREA), doing business as MH Development LLC.
Background
This is a re-plat of the former city-owned parcels located in The Village, which are now being developed
by GREA into The Linden of Mendota Heights. The property has been assigned new addresses of 725
Linden Street and 735 Maple Street.
The subject plat consists of four parcels totaling 2.67 acres. As part of the PUD Amendment request
approving this new apartment/restaurant development, the city conditioned GREA must file a follow-up
application to re-plat these four parcels, once they obtained ownership and control of the development site.
At the August 25, 2020 Planning Commission meeting, a planning report was presented on this subdivision
item, and a public hearing was conducted. There were no written comments or objections to this request.
A copy of the 08/25/2020 Planning Report and related attachments, along with excerpt minutes are
appended to this memo.
Recommendation
The Planning Commission recommended unanimously (7-0) to approve the Preliminary and Final Plat of
MENDOTA HEIGHTS SENIOR LIVING.
Action Required
The City Council may affirm this recommendation by adopting RESOLUTION NO. 2020-53,
APPROVING THE PRELIMINARY AND FINAL PLAT OF MENDOTA HEIGHTS SENIOR LIVING
LOCATED AT 725 LINDEN STREET AND 735 MAPLE STREET.
This action requires a simple majority vote.
page 185
CITY OF MENDOTA HEIGHTS
DAKOTA COUNTY, MINNESOTA
RESOLUTION 2020-53
RESOLUTION APPROVING A PRELIMINARY & FINAL PLAT
(SUBDIVISION) OF MENDOTA HEIGHTS SENIOR LIVING
LOCATED AT 725 LINDEN STREET / 735 MAPLE STREET
(PLANNING CASE NO. 2020-16)
WHEREAS, under Planning Case No. 2020-16, Grand Real Estate Advisors, doing
business as MH Development LLC (the “Applicant”) applied for a new Preliminary and Final Plat
(subdivision) of lands to be titled “MENDOTA HEIGHTS SENIOR LIVING”, for the property
located at 725 Linden Street and 735 Maple Street (the “Subject Property”), and which is legally
described in attached Exhibit A: and
WHEREAS, the Subject Property is guided MU-PUD [Mixed Use-Planned Unit
Development] in the current 2030 Comprehensive Plan and located in the MU-PUD [Mixed Use-
Planned Unit Development] zoning district; and
WHEREAS, Title 11-1-1 of the City Code (Subdivision Regulations) allows the
subdivision of parcels, provided that the resulting lots are compliant with the requirements of the
applicable zoning district; and
WHEREAS, the Applicant is requesting to combine and re-plat four (4) parcels described
and illustrated on the proposed plat map titled MENDOTA HEIGHTS SENIOR LIVING, which
copy of said subdivision plat is attached as Exhibit B; and
WHEREAS, on August 25, 2020, the Mendota Heights Planning Commission held a
public hearing on this matter at their regular meeting, and whereupon closing the hearing and
follow-up discussion on this item, the Planning Commission recommended approval (by 7-0 vote)
of the requested subdivision plat request from the Applicant.
page 186
NOW THEREFORE BE IT RESOLVED by the Mendota Heights City Council that the
recommendation of approval by the Mendota Heights Planning Commission regarding the
proposed Preliminary and Final Plat of MENDOTA HEIGHTS SENIOR LIVING, as presented
under Planning Case No. 2020-16, and for the property located at 725 Linden Street and 735 Maple
Street, is hereby affirmed, and the Final Plat of MENDOTA HEIGHTS SENIOR LIVING is
hereby approved.
Adopted by the City Council of the City of Mendota Heights this 1st day of September, 2020.
CITY COUNCIL
CITY OF MENDOTA HEIGHTS
________________________________
Neil Garlock, Mayor
ATTEST:
________________________________
Lorri Smith, City Clerk
Drafted by: City of Mendota Heights
1101 Victoria Curve
Mendota Heights, MN 55118
page 187
EXHIBIT A
Legal Descriptions
Parcel 1:
Lot 1, Block 2, Mendota Heights Town Center. Dakota County, Minnesota
Abstract Property
Parcel ID Number 27-48335-02-010
Parcel 2:
Lot 1, Block 3, Mendota Heights Town Center. Dakota County, Minnesota
Abstract Property
Parcel ID Number 27-48335-03-010
Parcel 3:
Lot 2, Block 3, Mendota Heights Town Center. Dakota County, Minnesota
Abstract Property
Parcel ID Number 27-48335-03-020
Parcel 4:
Outlot D, Mendota Heights Town Center. Dakota County, Minnesota
Abstract Property
Parcel ID Number 27-48335-00-040
page 188
EXHIBIT B
page 189
Planning Staff Report
DATE: August 25, 2020
TO: Planning Commission
FROM: Tim Benetti, Community Development Director
SUBJECT: Planning Case 2020-16
Preliminary and Final Plat of Mendota Heights Senior Living
APPLICANT: Pope Architects, on behalf of Grand Real Estate Advisors / MH
Development LLC
PROPERTY ADDRESS: 725 Linden Street / 735 Maple Street
ZONING/GUIDED: MU-PUD [Mixed Use-Planned Unit Development]
ACTION DEADLINE: November 22, 2020
INTRODUCTION
Pope Architects, acting on behalf of Grand Real Estate Advisors, is requesting consideration of a
Preliminary Plat and Final Plat of the former city-owned parcels, generally located in The Village at
Mendota Heights. The lots are bounded by Dodd Road to the west, Maple Street to the south, and Linden
Street to the east (between the Linden Street Lofts condominiums and Mendakota Animal Hospital). The
proposed title of the plat is “MENDOTA HEIGHTS SENIOR LIVING”.
This item is being presented under a duly noticed public hearing process. A notice of hearing on this item
was published in the Pioneer Press newspaper; and notice letters of this hearing were mailed to all owners
within 350-feet of the affected parcels. The city received no comments or objections on this item.
BACKGROUND & DESCRIPTION of REQUEST
The subject properties consist of four original parcels: Lot 1/Blk. 3 at 0.48 acres, Lot 2/Blk. 3 at 0.79 acres,
Lot 1/Blk. 2 at 0.45 acres; and Outlot D with 0.95 acres. A total of 2.67 acres is available for this
development. The properties are currently guided and zoned MU-PUD [Mixed Use-Planned Unit
Development] and have been since 2002. No zoning or land uses changes are being requested under this
re-platting.
At the January 28th and February 27th planning commission meetings, the city was asked to consider a
conditional use permit application from Grand Real Estate Advisors of St. Paul (GREA), which approval
would officially amend the original 2002 Planned Unit Development of Mendota Heights Town Center
(now The Village at Mendota Heights). This CUP/PUD Amendment requested approval of a new three-
page 190
story, 48-unit senior, luxury apartment with an attached 4,300-sf restaurant. On March 4, 2020, the City
Council adopted Resolution No. 2020-14, approving the CUP and PUD Amendment plans for this site.
The city recently finalized the real estate closing of these four parcels on July 29th; and a separate
developer’s agreement has been completed and entered into between the city and the developers. The site
is now legally owned by MH Development LLC (a legal entity of GREA).
The city has assigned new addresses for this mixed-use development site; 725 Linden Street for the
apartments and 735 Maple Street for the new restaurant.
As part of the PUD Amendment process, the city conditioned that once GREA owned or obtained control
of the development site, they must file a follow-up application to re-plat the four original parcels, thereby
creating a new main development parcel for the apartment and restaurant use; a separate “off-site” parcel
for the adjacent parking lot; and re-establish the old outlot to the north created under the original Mendota
Heights Town Center plat.
The proposed plat illustrates the triangular shaped parcel as new Lot 1, Block 1, used for the development’s
off-site/adjacent parking lot; Lot 1 Block 2 is the new main parcel for the joint apartment/restaurant
building; and Outlot A is the slightly smaller and re-shaped outlot to be kept as a drainage and utility
easement for this and the surrounding properties.
The Final Plat map has all the necessary drainage and utility easements as requested along Hwy 149 (Dodd
Road) and other perimeter areas. Lot 1/Block 1 (the triangular shaped lot) is being dedicated with a drainage
and utility easement over the entire lot. MH Development LLC also intends to deed over Outlot A back to
the city, in order to keep ownership and maintenance rights on this drainage and utility area with the city.
This preliminary and final plat approval is more of a “house-keeping” item, which was intended to be filed
after the developer’s obtained possession of the former city-owned lands. The consideration, approval or
filing of this plat, even after construction has begun, is acceptable and does not impede or prohibit the
continued development of this site.
ALTERNATIVES
1. Recommend approval of the Preliminary and Final Plat of Mendota Heights Senior Living, with
condition the final plat must be submitted to the City of Mendota Heights for the Mayor and City Clerk
signatures, and filed with Dakota County Recorders at earliest opportunity by the Applicant; or
2. Recommend denial of the Preliminary and Final Plat of Mendota Heights Senior Living, based on
specific findings of fact which support such a recommendation of denial; or
3. Table the request, and require city staff and/or the applicant to provide additional information as needed
or requested.
STAFF RECOMMENDATION
Staff recommends approval of the Preliminary Plat and Final Plat of MENDOTA HEIGHTS SENIOR
LIVING, based on the attached findings of fact.
No other conditions of approval are being requested at this time. Conditions related to this plat were
previously memorialized in adopted Resolution No. 2020-14.
page 191
FINDINGS OF FACT FOR APPROVAL
Preliminary & Final Plat
MENDOTA HEIGHTS SENIOR LIVING
725 Linden Street / 735 Maple Street
The following Findings of Fact are made in support of approval of the proposed request:
1. The proposed plat meets the purpose and intent of the Subdivision Code.
2. The proposed plat request meets the purpose and intent of the City Code and is consistent with the
Comprehensive Plan.
3. All required easements will be dedicated under this plat for the benefit of the city, its agents and
representatives, private and/or public utility service providers, along with state and county agencies
as needed.
4. The proposed plat and lots are all consistent with the intended layout and plans associated with the
approved Planned Unit Development Amendment, submitted under Planning Case No. 2020-01,
officially authorized under Resolution No. 2020-14 and adopted March 4, 2020.
page 192
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GIS Map Disclaimer:This data is for informational purposes only and should not be substituted for a true title search, property appraisal, plat,survey, or for zoning verification. The City of Mendota Heights assumes no legal responsibility for the information containedin this data. The City of Mendota Heights, or any other entity from which data was obtained, assumes no liability for any errorsor omissions herein. If discrepancies are found, please contact the City of Mendota Heights.
Contact "Gopher State One Call" at 651-454-0002 for utility locations, 48 hours prior to any excavation.
8/20/2020
page 193
CITY OF MENDOTA HEIGHTS
DAKOTA COUNTY, MINNESOTA
RESOLUTION 2020-14
RESOLUTION APPROVING A CONDITIONAL USE PERMIT AUTHORIZING AN
AMENDMENT TO THE 2002 PLANNED UNIT DEVELOPMENT AND MASTER PLAN
FOR THE MENDOTA HEIGHTS TOWN CENTER
N/K/A THE VILLAGE AT MENDOTA HEIGHTS)
LOCATED AT 725 LINDEN STREET AND 735 MAPLE STREET
WHEREAS, Grand Real Estate Advisors (the "Applicant") has applied for a conditional
use permit to amend a previously approved planned unit development (PUD) and final master
development plan for the development originally titled The Mendota Heights Town Center, which
is now known as The Village at Mendota Heights, as proposed under Planning Case No. 2020-01
and for the properties legally described in Exhibit A; and
WHEREAS, this amendment seeks to amend the "West Neighborhood" of this original
Mendota Heights Town Center PUD plan, which called for fourteen (14) residential townhomes
and five (5) home -office style townhomes, to be replaced with a new mixed -used development
consisting of a three-story, 48 -unit senior apartment building with an attached sit-down style
cafe/restaurant, with underground and surface parking facilities, initially titled "Mendota Heights
Senior Apartments"; and
WHEREAS, on January 28, 2020, the Mendota Heights Planning Commission received a
planning staff report and presentation on this planning application item, held a public hearing on
this matter, received comments from the public and Applicant, and whereby this item was tabled
by the commission to the February 27, 2020 regular meeting; and
WHEREAS, at the February 27, 2020 meeting, staff and the Applicant provided additional
information for the planning commission's consideration, re -opened the public hearing, heard
additional comments from the public, and after closing the hearing, the commission recommended
unanimously (7- 0 vote) to approve the conditional use permit authorizing an amendment to The
Mendota Heights Town Center (n/k/a The Village at Mendota Heights) Planned Unit Development
page 194
and its Master Development Plan, with certain findings of fact to support such approval, and with
certain conditions of approval.
NOW THEREFORE BE IT RESOLVED by the Mendota Heights City Council that the
conditional use permit authorizing an amendment to The Mendota Heights Town Center (n/k/a
The Village at Mendota Heights) Planned Unit Development and its Master Development Plan, as
proposed under Planning Case No. 2020-01, is hereby approved with the following findings of
fact:
The proposed amendment to a Planned Unit Development Final Development Plan is
consistent with the Comprehensive Plan and applicable City Code requirements for
such a development.
2. The proposed amended planned unit development can be planned and developed to
harmonize with any existing or proposed development in the areas surrounding the
project site
3. The proposed project utilizes the planned unit development (PUD) zoning flexibility to
enhance development of the property without negatively impacting surrounding land
uses and natural resources.
4. The reduced setback and building separation does not pose any threat to the general
health, safety and welfare of the surrounding properties or diminishes the usefulness of
the planned development of this property.
5. The proposed PUD should be approved with a higher density allotment, due to:
a. it will be an effective and unified treatment of the development;
b. the development plan includes provisions for the preservation and replacement of
natural amenities;
c. financing is available to the applicant on conditions and in an amount which is
sufficient to assure completion of the planned unit development and the PUD is
consistent with the comprehensive plan; and
d. the new PUD Amendment plans can be and will be planned and developed to
harmonize with any existing or proposed development in the areas surrounding the
project site.
e. The proposed increased density is consistent with surrounding suburban
communities and would allow for adequate open space as part of the proposed
development; and
f. The increased density provides for construction of a housing type that is lacking in
the City and would help to reach the forecasted population projections
6. Construction of the proposed high-density residential development will help contribute
to meeting the projected Metropolitan Council's 2040 forecasted population and
household numbers.
Res 2020-14
Page 2
page 195
7. The new mixed-use senior residential with a restaurant use would be in character with
other surrounding uses in the existing PUD area.
8. The proposed trail and pedestrian connections included as part of the mixed-use
development project will facilitate a walkable and livable environment within the
overall Village at Mendota Heights PUD and the surrounding neighborhoods.
BE IT FURTHER RESOLVED, by the Mendota Heights City Council that the
conditional use permit authorizing an amendment to The Mendota Heights Town Center (n/k/a
The Village at Mendota Heights) Planned Unit Development and Master Development Plan, as
proposed under Planning Case No. 2020-01, is hereby approved with the following conditions:
1. The Developer shall enter into a Development Agreement with the City of Mendota
Heights, in a form prepared by the city attorney; and final draft shall be approved by
the city council.
2. Developer shall provide a clearly marked crosswalk on Maple Street over to the
separated parking lot, with final location and design approved by Public Works
Director.
3. Necessary drainage and utility easements shall be included on the Final Plat, as
determined by the Public Works Director and if necessary the Saint Paul Regional
Water Services.
4. All new buildings shall be constructed only in conformance to building and site plans
certified by a registered architect and engineers (as applicable); and in accordance with
all architectural and building standards found under Title 12-1E-8, Subpart F
Architectural Controls" and Subpart G — Structural, Electrical and Mechanical
Requirements.
5. Any ground -level mechanicals and utility appurtenances, must be screened with
vegetation or one or more of the materials used in the construction of the principal
structure, which must be reviewed and approved by the Planning Department as part of
the building permit process.
6. Plant material shall be utilized as a screening element for any building utility areas, but
shall not obstruct fire department connections or hydrants, to be reviewed by the
Planning and Fire Departments and verified as part of the building permit review
process.
7. A park dedication fee of $4,000/residential unit shall be paid at time of building permit
approvals.
Res 2020-14 Page 3
page 196
8. A performance bond or letter of credit shall be supplied by the applicant in an amount
equal to at least one and one-half (11/2) times the value of such screening, landscaping,
or other improvements, to be included as part of the Development Agreement.
9. The Developer and/or their respective agents shall be jointly and severally responsible
for the maintenance of all landscaping in a condition presenting a healthy, neat and
orderly appearance and free from refuse and debris. Plants and ground cover which are
required by an approved site or landscape plan and which have died shall be replaced
as soon as seasonal or weather conditions allow. All landscape areas must be irrigated.
10. The proposed water system shall be designed and constructed to Saint Paul Regional
Water Service (SPRWS) standards.
11. Building and grading permits shall be obtained from the City prior to construction
commencement.
12. All grading and construction activities as part of the proposed development shall be in
compliance with applicable federal, state, and local regulations and codes, as well as in
compliance with the City's Land Disturbance Guidance Document.
13. All applicable fire and building codes, as adopted/amended by the City, shall apply and
the buildings shall be fully -protected by an automatic fire sprinkler system.
Adopted by the City Council of the City of Mendota Heights this 4th day of March, 2020.
CITY COUNCIL
CITY OF MENDOTA HEIGHTS
Neil Garlock, Mayor
ATTEST:
L ri Smith, City Clerk
Res 2020-14 Page 4
page 197
EXHIBIT A
Legal Descriptions
Parcel 1:
Lot 1, Block 2, Mendota Heights Town Center. Dakota County, Minnesota
Abstract Property
Parcel ID Number 27-48335-02-010
Parcel 2:
Lot 1, Block 3, Mendota Heights Town Center. Dakota County, Minnesota
Abstract Property
Parcel ID Number 27-48335-03-010
Parcel 3:
Lot 2, Block 3, Mendota Heights Town Center. Dakota County, Minnesota
Abstract Property
Parcel ID Number 27-48335-03-020
Parcel 4:
Outlot D, Mendota Heights Town Center. Dakota County, Minnesota
Abstract Property
Parcel ID Number 27-48335-00-040
page 198
VICINITY MAPSUBJECTPROPERTIES1. Bearings shown hereon are based on the Dakota County Coordinate System relative to theNAD83(11) control adjustment.2. Elevations and contours shown hereon were established with GPS and are relative to theNAVD88 vertical datum.3. Date of field work was November 8, 2019.LEGEND 5898-000SHEETDMLJRAMENDOTAHEIGHTSAPARTMENTSMENDOTA HEIGHTS, MN01/06/POPE ARCHITECTS, IN1295 BANDANA BLVD N, SUITE 2ST. PAUL, MN 55108-27(651) 642-9200 | FAX (651) 642-11www.popearch.coWENCK ASSOCIATES, IN7500 OLSON MEMORIAL HWY, SUITE 3GOLDEN VALLEY, MN 554(763) 252-6800 | FAX (952) 831-12WWW.WENCK.COWARNING:THE CONTRACTOR SHALL BE RESPONSIBLE FOR CALLING FOR LOCATIONS OF ALL EXISTING UTILITIES. THEY SHALLCOOPERATE WITH ALL UTILITY COMPANIES IN MAINTAINING THEIR SERVICE AND/OR RELOCATION OF LINES.THE CONTRACTOR SHALL CONTACT GOPHER STATE ONE CALL AT 651-454-0002 AT LEAST 48 HOURS IN ADVANCE FORTHE LOCATIONS OF ALL UNDERGROUND WIRES, CABLES, CONDUITS, PIPES, MANHOLES, VALVES OR OTHER BURIEDSTRUCTURES BEFORE DIGGING. THE CONTRACTOR SHALL REPAIR OR REPLACE THE ABOVE WHEN DAMAGED DURINGCONSTRUCTION AT NO COST TO THE OWNER.GOPHER STATE ONE CALLTWIN CITY AREA: 651-454-0002TOLL FREE 1-800-252-1166CALL BEFORE YOU DIGCITY SUBMITTAL01/17/CITY SUBMITTAL11/18/CONCEPT SUBMITTAL02/07/CITY COMMENT REVISION 102/13/CITY SUBMITTAL02/18/2CITY COMMENT REVISION 202/25/2CITY COMMENT REVISION 3PARCEL 1: 19,476 S. F. (0.447 AC.)PARCEL 2: 20,768 S. F. (0.477 AC.)PARCEL 3: 34,457 S. F. (0.791 AC.)PARCEL 4: 41,459 S. F. (0.952 AC.)PLAT BOUNDARY AREA = 116,160 S. F. (2.667 AC.)LOT 1, BLOCK 1 = 19,476 S. F. (0.447 ± AC.)LOT 1, BLOCK 2 = 70,998 S. F. (1.630 ± AC.)OUTLOT A = 25,685 S. F. (0.590 ± AC.)DRAINAGE AND UTILITY EASEMENTS PROPOSED TO BE REDEDICATED:BEING 3 FEET IN WIDTH AND ADJOINING LOT LINES AND BEING 3 FEET INWIDTH AND ADJOINING PUBLIC WAYS AND REAR LOT LINES, UNLESSOTHERWISE INDICATED ON THIS PLAT.DRAINAGE AND UTILTY EASEMENT OVER ALL OF OUTLOT A.BEARING ORIENTATION NOTE:BEARINGS ARE BASED ON THE WEST LINE OF LOT 1, BLOCK 2, MENDOTAHEIGHTS TOWN CENTER HAS AN ASSUMED BEARING OF N 00 DEGREES 12MINUTES 37 SECONDS WEST.LEGAL DESCRIPTION OF PROPERTY TO BE PLATTEDPARCEL 1:CITY OF MENDOTA HEIGHTS(THIS PARCEL HAS NOT BEEN ASSIGNED AN ADDRESS)PID NUMBER: 27-48335-02-010PARCEL 2:CITY OF MENDOTA HEIGHTS(THIS PARCEL HAS NOT BEEN ASSIGNED AN ADDRESS)PID NUMBER: 27-48335-03-010PARCEL 3CITY OF MENDOTA HEIGHTS735 MAPLE STREETMENDOTA HEIGHTS MN 55118PID NUMBER: 27-48335-03-020PARCEL 4 :CITY OF MENDOTA HEIGHTS(THIS PARCEL HAS NOT BEEN ASSIGNED AN ADDRESS)PID NUMBER: 27-48335-00-040PRESENT OWNER / ADDRESS / PARCEL ID NO.EXISTING PARCEL AND PROPOSED PLAT AREAS MENDOTA HEIGHTS APARTMENTSPRELIMINARY PLAT OFParcel 1:Lot 1, Block 2, MENDOTA HEIGHTS TOWN CENTER,Dakota County, MinnesotaAbstract PropertyParcel 2:Lot 1, Block 3, MENDOTA HEIGHTS TOWN CENTER,Dakota County, MinnesotaAbstract PropertyParcel 3:Lot 2, Block 3, MENDOTA HEIGHTS TOWN CENTER,Dakota County, MinnesotaAbstract PropertyParcel 4:Outlot D, MENDOTA HEIGHTS TOWN CENTER,Dakota County, MinnesotaAbstract PropertyWENCK ASSOCIATES,1800 PIONEER CREEK CENTER,MAPLE PLAIN, MNGARY BJORKLUND, MN.LICENSE NUMBER 46563LAND SURVEYORMARCH 10, 2020DATE OF PRELIMINARY PLAT ZONINGMU-PUD MIXED USE PER CITY ZONING MAP 2018SURVEY NOTES DENOTES PUBLIC DRAINAGE AND UTILITY EASEMENTS TO BE VACATEDpage 199
WENCKASSOCIATESMENDOTA HEIGHTS SENIOR LIVINGpage 200
WENCKASSOCIATESLEGEND MENDOTA HEIGHTS SENIOR LIVINGpage 201
CITY OF MENDOTA HEIGHTS
DAKOTA COUNTY, MINNESOTA
PLANNING COMMISSION MINUTES
August 25, 2020
The regular meeting of the Mendota Heights Planning Commission was held on Tuesday, August 25, 2020
in the Council Chambers at City Hall, 1101 Victoria Curve at 7:00 P.M.
The following Commissioners were present: Chair Mary Magnuson, Commissioners John Mazzitello,
Patrick Corbett, Litton Field, Michael Toth, Brian Petschel, and Andrew Katz. Those absent: None
Approval of Agenda
The agenda was approved as submitted.
Approval of July 28, 2020 Minutes
COMMISSIONER FIELD MOVED, SECONDED BY COMMISSIONER TOTH TO APPROVE THE
MINUTES OF JULY 28, 2020.
AYES: 5
NAYS: 0
ABSTAIN: 2 (Mazzitello and Petschel)
Hearings
A) PLANNING CASE 2020-16
GRAND REAL ESTATE ADVISORS/MH DEVELOPMENT LLC, 725 LINDEN STREET
AND 735 MAPLE STREET – PRELIMINARY AND FINAL PLAT
Community Development Director Tim Benetti explained that Pope Architects, acting on behalf of Grand
Real Estate Advisors, is requesting consideration of a Preliminary Plat and Final Plat of the former City-
owned parcels, generally located in The Village at Mendota Heights. The lots are bounded by Dodd Road
to the west, Maple Street to the south, and Linden Street to the east. The proposed title of the plat is
“Mendota Heights Senior Living”.
Hearing notices were published and mailed to all properties within 350-ft. of the site; no comments or
objections to this request were received.
Community Development Director Tim Benetti provided a planning staff report and a presentation on this
planning item to the Commission (which is available for viewing through the City’s website).
Staff recommended approval of this application based on the findings.
Chair Magnuson asked if Outlot A would contain trees that would provide screening between the
condominiums and this facility.
Community Development Director Tim Benetti confirmed that area would remain undisturbed and function
as a needed drainage area and would also provide buffering.
page 202
Chair Magnuson opened the public hearing.
Seeing no one coming forward wishing to speak, Chair Magnuson asked for a motion to close the public
hearing.
COMMISSIONER MAZZITELLO MOVED, SECONDED BY COMMISSIONER TOTH TO CLOSE
THE PUBLIC HEARING.
AYES: 7
NAYS: 0
COMMISSIONER FIELD MOVED, SECONDED BY COMMISSIONER MAZZITELLO, TO
RECOMMEND APPROVAL OF THE PRELIMINARY PLAT AND FINAL PLAT OF MENDOTA
HEIGHTS SENIOR LIVING, BASED ON THE FINDINGS OF FACT.
AYES: 7
NAYS: 0
Chair Magnuson advised the City Council would consider this application at its September 1, 2020 meeting.
page 203
page 204
Request for City Council Action
MEETING DATE: September 1, 2020
TO: Mayor Garlock and City Council; City Administrator McNeill
FROM: Tim Benetti, Community Development Director
SUBJECT: Resolution No. 2020-54 Approving a Wetlands Permit for 781 Pondhaven Lane
(Planning Case No. 2020-18)
Introduction
City Council is asked to consider adopting a resolution approving a Wetlands Permit to John and Lisa
Steveken, owners of the property located at 781 Pondhaven Lane.
Background
City Code Section 12-2-6 requires a wetlands permit for any work conducted within 100-ft. of an adjacent
wetland or recognized water feature. The Steveken’s seek permission to install a new in-ground swimming
pool and fence to the rear area of their property. All new work should have minimal or nominal impacts to
the adjacent pond.
At the August 25, 2020 Planning Commission meeting, a planning report was presented on this Wetlands
Permit item, and a public hearing was conducted. There were no written comments or objections to this
request. A copy of the 08/25/2020 Planning Report and related attachments, along with excerpt minutes
are appended to this memo.
Discussion
The City can use its legislative authority when considering action on a Wetlands Permit, and has broad
discretion. The only limitations are that actions must be constitutional, rational, and in some way related
to protecting the health, safety and general welfare of the public.
Recommendation
The Planning Commission recommended unanimously (7-0 vote) to approve the Wetlands Permit, with
certain conditions and findings of fact to support said approval.
Action Required
The City Council may affirm this recommendation by adopting RESOLUTION NO. 2020-54,
APPROVING A WETLANDS PERMIT FOR 781 PONDHAVEN LANE.
This action requires a simple majority vote.
page 205
CITY OF MENDOTA HEIGHTS
DAKOTA COUNTY, MINNESOTA
RESOLUTION 2020-54
RESOLUTION APPROVING A WETLANDS PERMIT
FOR PROPERTY LOCATED AT 781 PONDHAVEN LANE
(PLANNING CASE NO. 2020-18)
WHEREAS, John and Lisa Steveken, (as “Applicant”) applied for a Wetlands Permit as
presented under Planning Case No. 2020-18, for the property located at 781 Pondhaven Lane (the
“Subject Property”), legally described in attached Exhibit-A; and
WHEREAS, the Subject Property is guided LR-Low Density Residential in the 2030
Comprehensive Plan, is situated in the R-1 One Family Residential District, and is located adjacent
to an established wetland/pond feature; and
WHEREAS, the Applicant seek permission to construct and install a new in-ground
swimming pool with deck and fence to the rear area of the Subject Property; and
WHEREAS, pursuant to Title 12-2-1 of the City Code, all new construction, related
improvements, grading, and/or removals made within one-hundred (100) feet of a wetland or water
resource-related area requires a wetlands permit; and
WHEREAS, on August 25, 2020 the Mendota Heights Planning Commission held a public
hearing on this matter at their regular meeting, and whereupon closing the hearing and follow-up
discussion on this item, the Planning Commission recommended unanimously (7-0 vote) to
approve the Wetlands Permit as presented under Planning Case No. 2020-18, with certain findings-
of-fact and conditions of approval as noted herein.
NOW THEREFORE BE IT RESOLVED by the Mendota Heights City Council, that the
recommendation from the Planning Commission is hereby affirmed, and the Wetlands Permit
requested for the property located at 781 Pondhaven Lane is hereby approved with the following
findings of fact:
page 206
A. The proposed construction activities related to the new pool project and allowed
under this Wetlands Permit meets the purpose and intent of the City Code and is
consistent with the Comprehensive Plan.
B. The re-establishment of the wetland buffer will provide adequate safeguards for
storm water, soil erosion and contaminant leeching into the adjacent pond/wetland.
C. The placement of the new fence inside the 25-foot wetland buffer area will have
minimal impacts to the adjacent pond/wetland and vegetative cover.
D. Adequate erosion control measures will be maintained and observed during
construction.
E. Any disturbed areas or vegetation removed as part of this pool project will be
planted in the disturbed areas after construction is completed.
BE IT FURTHER RESOLVED, by the Mendota Heights City Council that the Wetlands
Permit for the property located at 781 Pondhaven Lane, is hereby approved with the following
conditions:
1. The new pool structure shall comply with all standards and rules under Title 9
Building Regulations Section 9-2-1: Swimming Pools, and Title 12 Zoning of the
City Code, and the Minnesota State Building Code regulations. The new fence
must be a minimum of 5-ft. in height and fully installed and inspected prior to using
the swimming pool.
2. The new swimming pool and related structure work shall comply with all applicable
standards and conditions noted under Title 12, Chapter 2 Wetlands Systems of City
Code.
3. Draining or back-flushing of water from the pool shall be directed onto the owner's
property only, and shall not drain directly into the pond/wetland systems. Any
drainage onto public streets or other public drainage ways shall require permission
of the appropriate local city officials.
4. The Applicant/Owner shall replant and re-vegetate the 25-foot wetland buffer area
with plantings and materials as per the direction of the city’s Natural Resources
Technician.
5. Any new excavating, grading and/or construction activity related to the new pol
and fence work shall be in compliance with applicable federal, state, and local
regulations and codes, as well as in compliance with the City’s Land Disturbance
Guidance Document. Full erosion/sedimentation measures shall be installed prior
to commencement of work and maintained throughout the duration of the
construction project
page 207
6. A building permit must be approved prior to the commencement of any
construction work on this pool. Site construction shall occur only between the
hours of 7:00 am and 8:00 pm weekdays; and 9:00 am to 5:00 pm weekends.
7. All disturbed areas in and around the project site shall be restored and have an
established, protected and permanent ground cover immediately after the pool
project is completed.
Adopted by the City Council of the City of Mendota Heights this 1st day of September, 2020.
CITY COUNCIL
CITY OF MENDOTA HEIGHTS
________________________________
Neil Garlock, Mayor
ATTEST:
________________________________
Lorri Smith, City Clerk
Drafted by: City of Mendota Heights
1101 Victoria Curve
Mendota Heights, MN 55118
page 208
EXHIBIT-A
Legal Description
PID# 27-15151-01-120
LOT 12, BLOCK 1, BRIDGEVIEW SHORES 2nd ADDITION, DAKOTA COUNTY,
MINNESOTA
Abstract Property
page 209
Planning Staff Report
DATE: August 25, 2020
TO: Planning Commission
FROM: Tim Benetti, Community Development Director
SUBJECT: Planning Case 2020-18
WETLANDS PERMIT
APPLICANT: John Steveken
PROPERTY ADDRESS: 781 Pondhaven Lane
ZONING/GUIDED: R-1 One Family Residential/LR Low Density Residential
ACTION DEADLINE: October 6, 2020
INTRODUCTION
John Steveken is seeking approval of a Wetlands Permit to allow the installation of a new in-ground
swimming pool on the property located at 781 Pondhaven Lane.
A public hearing notice for this planning item was published in the Pioneer Press and notice letters were
mailed to all properties within 350-feet of the subject property. No comments or objections were received.
BACKGROUND / PROJECT DESCRIPTION
The subject property is 0.78 acres (33,985-sf.) in size, and contains a 3,750 sf. two-story single family
dwelling. The property located in the R-1 One Family Residential zone. Approximately one-half of the lot
is covered by the adjacent pond (see aerial image - below):
page 210
The pond is identified under the City’s Storm Water Management Plan (SWMP) as a “Freshwater Pond”;
and further classified as a Type III wetland (i.e. Slightly Susceptible Wetland).
The back one-half of the lot is also covered by a drainage and utility easement, dedicated under the
Bridgewater Shores 2nd Addition.
The homeowners have hired Kalifornia Pool & Spas to install a new 15’ x 32’ in-ground swimming pool,
along with a new concrete patio deck around the perimeter of the pool (see site plan image – below).
The Applicant’s surveyor was provided the ordinary high water (OHW) elevation of 875.10-ft. (as per the
SWMP), and was instructed to include a wetland buffer line (offset) of 25-feet from this elevation line.
Wetland buffer edges are not required by the ordinance, but are recommended in the SWMP as an effective
means to reducing negative impacts to the wetlands from adjacent development.
page 211
The pool structure itself does not impact the buffer; and the surrounding concrete pool deck edge just
touches the buffer line near the northeast corner.
The rear yard of the property is currently fenced with a 4-ft. high, white vinyl decorative style fence, but
the rear section along the back pond edge was recently removed by the homeowner.
Any yard that contains a pool (or the pool area itself) must have a 5 to 6-ft. high fence. The Applicant is
requesting to install a new 5-ft. or 6-ft. black aluminum decorative style fence along the rear yard area (see
images – below) as a replacement to the old fence.
As noted in the image above, the Applicant is seeking to install the rear section of the new fence inside the
25-foot buffer edge. The fence is not intended to impact or encroach over the OHW line or existing
pond/water line.
ANALYSIS
Pursuant to City Code Section 12-2-3, the Wetland Systems ordinance applies to wetlands and water
resource related areas, and to adjacent land within one hundred feet (100') of normal high water markers of
wetlands and water resource related areas as delineated on the official city wetlands systems map.
City Code Section 12-2-6 further states that any work or development upon or which would otherwise alter
a wetland or potentially impact a water related resource area, must obtain a written permit from the city;
with the list of activities noted as follows:
1. The deposit or removal of any debris, fill or other material over 100 cubic yards.
2. Any excavation over 100 cubic yards.
3. The digging, dredging, filling, or in any other way altering or removing any material from water
bodies, watercourses, wetlands, floodplain, or natural drainage system.
4. The construction, alteration, or removal of any structure.
page 212
5. The removal of vegetation.
6. The altering of any embankment, ponding, or changing of the flow of water or ponding capacity.
7. Permanently storing materials.
8. Disposing of waste materials (including sewage, garbage, rubbish, and other discarded materials).
9. Installation and maintenance of essential services.
The purpose of the Wetlands Systems Chapter of the City Code Title 12-2-1 is to:
• Provide for protection, preservation, maintenance, and use wetlands and water resource-related areas;
• Maintain the natural drainage system;
• Minimize disturbance which may result from alteration by earthwork, loss of vegetation, loss of wildlife
and aquatic organisms as a result of the disturbance of the natural environment or from excessive
sedimentation;
• Provide for protection of potable fresh water supplies; and
• Ensure safety from floods.
The Surface Water Management Plan provides certain guidelines and suggested standards (not
requirements) for the city to follow or implement when dealing with new development near natural water
features. The SWMP recommends a 25-foot no-disturbance/natural vegetative buffer zone from the
wetland edge, to provide an extra level or measure of erosion and silt protection, and any fertilizer/chemical
runoff from the lawn area.
It appears all major construction activities related to the building of the new pool and deck are far enough
away from the established pond edge; and any construction or installation work near the 25-ft. buffer should
be minimal or nominal. The new (and required) fencing however, is being requested to encroach or placed
inside this wetland buffer.
The subject property currently has an established and natural vegetative buffer in place, which was situated
outside the old fence line (see images – below).
Per the Wetland Ordinance Section 12-2-7 Standards and Conditions:
• Runoff from developed property and construction projects may be directed to the wetland only
when reasonably free of silt and debris and chemical pollutants, and at such rates such as not to
disturb wetland vegetation or increase turbidity.
page 213
• No deleterious waste shall be discharged in a wetland or disposed of in a manner that would cause
the waste to enter the wetland or other water resource area.
• Removal of vegetation shall be permitted only when and where such work within the W district has
been approved in accordance with the standards of this chapter.
• Removal of vegetation within the W district but outside the wetland shall be limited to that
reasonably required for the placement of structures and the use of property.
The Applicant has stated he is requesting to install the fencing farther out towards the pond edge in order
to obtain or provide additional yard space, due to some loss of the narrow back-yard space with the
installation of the new pool. The Applicant does not intend to remove this vegetative buffer area and turn
this yard space between the pool and new fence into additional lawn or “mow-able” area. Instead, he has
agreed to restore the natural vegetative wetland buffer edge in this area, with the fence closer to the pond,
and is willing to work with the city staff, namely the Natural Resource Technician on new planting types
and materials conducive to and beneficial for a wetland edge. Full erosion control measures will be
mandatory and held in place during and after the completion of the project, as per the city’s Land
Disturbance Guidelines.
The Applicant is fully aware that per Section 9-2-1 Swimming Pools, the drainage or back-flushing of water
from pool shall be directed onto the owner's property or into approved public drainage ways and shall not
drain onto adjacent private lands. Drainage onto public streets or other public drainage ways shall require
permission of the appropriate local city officials.
This new pool is intended to be a salt-water and closed filter cleaning system. As has been reported or
stated on other pool projects approved in the city, most pools of this type (or even in Midwest locations) do
not need or require continuous drainage or back flushing. However, for any flushing or drainage that may
be done with this pool, it must not be drained towards the wetland.
The scope and scale of this proposed new pool project fits nicely with the overall size of the property,
especially in this narrow stretch of rear-yard space. Most of the new work is being contained or limited to
the area in and around where the existing, flat, rear yard space exists today.
The following statements are presented for the Planning Commission to review and consider in your
determination of this wetland permit:
a) the work should have very little, if any impacts to the adjacent wetland feature;
b) the Applicant/Owners will provide for the protection and preservation of the adjacent
wetland/water resource feature by installing silt fence and stormwater run-off protection measures
as per the City’s Land Disturbance Guidelines and city staff direction;
c) the protective and natural wetland buffer area will be restored and replanted with vegetation that
ensures storm water, soil and contaminant runoff is reduced or minimized from the subject
property;
d) the Applicant/Owners will make every attempt to minimize disturbances of the vegetative buffer
area and other surrounding areas in order to protect and preserve the natural pond environment,
thereby minimizing and avoiding any impacts to wildlife and aquatic organisms.
ALTERNATIVES
1. Approve the Wetlands Permit based on certain findings of fact, along with specific conditions of
approval as noted herein; or
2. Deny the requested Wetlands Permit based on revised finding(s) of facts as determined by the Planning
Commission; or
page 214
3. Table the request and direct staff to extend the application review period an additional 60 days, pursuant
to MN State Statute 15.99.
STAFF RECOMMENDATION
Staff recommends approval of a Wetlands Permit to John Steveken and the property located at 781
Pondhaven Lane, which would allow the construction of a new in-ground swimming pool and fence located
within 100-feet of a wetland, based on the attached findings of fact and subject to the following conditions:
1. The new pool structure shall comply with all standards and rules under Title 9 Building Regulations
Section 9-2-1: Swimming Pools, and Title 12 Zoning of the City Code, and the Minnesota State
Building Code regulations. The new fence must be a minimum of 5-ft. in height and fully installed
and inspected prior to using the swimming pool.
2. The new swimming pool and related structure work shall comply with all applicable standards and
conditions noted under Title 12, Chapter 2 Wetlands Systems of City Code.
3. Draining or back-flushing of water from the pool shall be directed onto the owner's property only,
and shall not drain directly into the pond/wetland systems. Any drainage onto public streets or
other public drainage ways shall require permission of the appropriate local city officials.
4. The Applicant/Owner shall replant and re-vegetate the 25-foot wetland buffer area with plantings
and materials as per the direction of the city’s Natural Resources Technician.
5. Any new excavating, grading and/or construction activity related to the new pol and fence work
shall be in compliance with applicable federal, state, and local regulations and codes, as well as in
compliance with the City’s Land Disturbance Guidance Document. Full erosion/sedimentation
measures shall be installed prior to commencement of work and maintained throughout the duration
of the construction project
6. A building permit must be approved prior to the commencement of any construction work on this
pool. Site construction shall occur only between the hours of 7:00 am and 8:00 pm weekdays; and
9:00 am to 5:00 pm weekends.
7. All disturbed areas in and around the project site shall be restored and have an established, protected
and permanent ground cover immediately after the pool project is completed.
page 215
FINDINGS OF FACT FOR APPROVAL
Wetlands Permit for New Swimming Pool and Fence Improvements
781 Pondhaven Lane
Planning Case No. 2020-18
The following Findings of Fact are made in support of approval of the proposed requests:
1. The proposed construction activities related to the new pool project and allowed under this
Wetlands Permit meets the purpose and intent of the City Code and is consistent with the
Comprehensive Plan.
2. The re-establishment of the wetland buffer will provide adequate safeguards for storm water, soil
erosion and contaminant leeching into the adjacent pond/wetland.
3. The placement of the new fence inside the 25-foot wetland buffer area will have minimal impacts
to the adjacent pond/wetland and vegetative cover.
4. Adequate erosion control measures will be maintained and observed during construction.
5. Any disturbed areas or vegetation removed as part of this pool project will be planted in the
disturbed areas after construction is completed.
page 216
SITE PHOTOS – 781 PONDHAVEN LANE
STEVEKEN RESIDENCE
page 217
page 218
IMAGE of PROPOSED FENCE
page 219
August 6, 2020
To: Mendota Heights Planning Commission
From: John & Lisa Steveken
Re: Letter of Intent / Project Description
Planning Commission,
It is our desire to construct a 15 x 32 foot pool in our backyard at 781 Pondhaven Lane in Mendota
Heights. Pagel Pond butts up to our backyard and, although our project would encroach into the 25 foot
buffer area from the OHWL, the actual survey shows a minimal amount of encroachment. As a result, of
course, a 5 ft tall fence would also be in that buffer zone.
Since moving to Mendota Heights in 1997, our goals have remained consistent with the City of Mendota
Heights when it comes to protecting any natural and artificial wetlands. We remain steadfast in our desire
to maintain and protect any shoreline, aquatic life and native plants.
Our family appreciates your commitment towards our goal and we look forward to meeting with you to
answer any questions. Thank you.
Sincerely,
John & Lisa Steveken
612-840-6753 cell
jsteveken@mbasoft.com
page 220
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SCALE IN FEET
GIS Map Disclaimer:This data is for informational purposes only and should not be substituted for a true title search, property appraisal, plat,survey, or for zoning verification. The City of Mendota Heights assumes no legal responsibility for the information containedin this data. The City of Mendota Heights, or any other entity from which data was obtained, assumes no liability for any errorsor omissions herein. If discrepancies are found, please contact the City of Mendota Heights.
Contact "Gopher State One Call" at 651-454-0002 for utility locations, 48 hours prior to any excavation.
8/20/2020
MENDOTA HEIGHTS ROAD
page 221
781 Pondhaven Lane04/04/2017page 222
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WETLANDS MAP 781 Pondhaven Lane
City ofMendotaHeights050
SCALE IN FEET
GIS Map Disclaimer:This data is for informational purposes only and should not be substituted for a true title search, property appraisal, plat,survey, or for zoning verification. The City of Mendota Heights assumes no legal responsibility for the information containedin this data. The City of Mendota Heights, or any other entity from which data was obtained, assumes no liability for any errorsor omissions herein. If discrepancies are found, please contact the City of Mendota Heights.
Contact "Gopher State One Call" at 651-454-0002 for utility locations, 48 hours prior to any excavation.
8/20/2020
page 223
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page 229
B) PLANNING CASE 2020-18
JOHN STEVEKEN, 781 PONDHAVEN LANE – WETLAND PERMIT
Community Development Director Tim Benetti explained that John Steveken is seeking approval of a
Wetlands Permit to allow the installation of a new in-ground swimming pool on the property located at 781
Pondhaven Lane.
Hearing notices were published and mailed to all properties within 350-ft. of the site; no comments or
objections to this request were received.
Community Development Director Tim Benetti provided a planning staff report and a presentation on this
planning item to the Commission (which is available for viewing through the City’s website).
Staff recommended approval of this application based on the findings and with conditions.
Commissioner Mazzitello asked if the height requirement for a pool is five feet.
Community Development Director Tim Benetti confirmed that the ordinance requires a minimum of five
feet.
Commissioner Toth referenced the ordinary high-water level of 874 and asked if that water level has been
stable over the years.
Community Development Director Tim Benetti explained how the number was developed through
modeling. He noted that the buffer requirement begins from that point.
Chair Magnuson stated that she cannot recall a situation where someone has been allowed to encroach on
the 25-foot setback and asked what would be done to ensure that there would not be damage to the wetland
from erosion or land disturbance.
Community Development Director Tim Benetti stated that the Natural Resources Technician is a great
resource and advocate for helping residents with projects of this nature and also conducts reviews to ensure
erosion control measures are in place.
Public Works Director Ryan Ruzek replied that minimum construction activity is required for fencing and
therefore staff is not too concerned.
Commissioner Mazzitello stated that there will be disturbance within the 25-foot buffer to construct the
pool and noted that draft condition four states that the applicant must restore plantings in coordination with
the Natural Resources Technician.
Chair Magnuson opened the public hearing.
Seeing no one coming forward wishing to speak, Chair Magnuson asked for a motion to close the public
hearing.
COMMISSIONER MAZZITELLO MOVED, SECONDED BY COMMISSIONER TOTH, TO CLOSE
THE PUBLIC HEARING.
AYES: 7
page 230
NAYS: 0
COMMISSIONER MAZZITELLO MOVED, SECONDED BY COMMISSIONER PETSCHEL TO
RECOMMEND APPROVAL OF A WETLANDS PERMIT TO JOHN STEVEKEN AND THE
PROPERTY LOCATED AT 781 PONDHAVEN LANE, WHICH WOULD ALLOW THE
CONSTRUCTION OF A NEW IN-GROUND SWIMMING POOL AND FENCE LOCATED WITHIN
100 FEET OF A WETLAND, BASED ON THE FINDINGS OF FACT AND SUBJECT TO THE
FOLLOWING CONDITIONS:
1. THE NEW POOL STRUCTURE SHALL COMPLY WITH ALL STANDARDS AND RULES
UNDER TITLE 9 BUILDING REGULATIONS SECTION 9-2-1: SWIMMING POOLS, AND
TITLE 12 ZONING OF THE CITY CODE, AND THE MINNESOTA STATE BUILDING CODE
REGULATIONS. THE NEW FENCE MUST BE A MINIMUM OF 5 FEET IN HEIGHT AND
FULLY INSTALLED AND INSPECTED PRIOR TO USING THE SWIMMING POOL
2. THE NEW SWIMMING POOL AND RELATED STRUCTURE WORK SHALL COMPLY
WITH ALL APPLICABLE STANDARDS AND CONDITIONS NOTED UNDER TITLE 12,
CHAPTER 2 WETLANDS SYSTEMS OF CITY CODE.
3. DRAINING OR BACK-FLUSHING OF WATER FROM THE POOL SHALL BE DIRECTED
ONTO THE OWNER’S PROPERTY ONLY AND SHALL NOT DRAIN DIRECTLY INTO THE
POND/WETLAND SYSTEMS. ANY DRAINAGE ONTO PUBLIC STREETS OR OTHER
PUBLIC DRAINAGE WAYS SHALL REQUIRE PERMISSION OF THE APPROPRIATE
LOCAL CITY OFFICIALS.
4. THE APPLICANT/OWNER SHALL REPLANT AND RE-VEGETATE THE 25 FOOT
WETLAND BUFFER AREA WITH PLANTINGS AND MATERIALS PER THE DIRECTION
FO THE CITY’S NATURAL RESOURCES TECHNICIAN.
5. ANY NEW EXCAVATING, GRADING AND/OR CONSTRUCTION ACTIVITY RELATED
TO THE NEW POOL AND FENCE WORK SHALL BE IN COMPLIANCE WITH
APPLICABLE FEDERAL, STATE, AND LOCAL REGULATIONS AND CODES, AS WELL
AS IN COMPLIANCE WITH THE CITY’S LAND DISTURBANCE GUIDANCE DOCUMENT.
FULL EROSION/SEDIMENT MEASURES SHALL BE INSTALLED PRIOR TO
COMMENCEMENT OF WORK AND MAINTAINED THROUGHOUT THE DURATION OF
THE CONSTRUCTION PROJECT.
6. A BUILDING PERMIT MUST BE APPROVED PRIOR TO THE COMMENCEMENT OF ANY
CONSTRUCTION WORK ON THIS POOL. SITE CONSTRUCTION SHALL OCCUR ONLY
BETWEEN THE HOURS OF 7:00 A.M. AND 8:00 P.M. WEEKDAYS; AND 9:00 A.M. TO 5:00
P.M. WEEKENDS.
7. ALL DISTURBED AREAS IN AND AROUND THE PROJECT SITE SHALL BE RESTORED
AND HAVE AN ESTABLISHED, PROTECTED AND PERMANENT GROUND COVER
IMMEDIATELY AFTER THE POOL PROJECT IS COMPLETED.
AYES: 7
NAYS: 0
Chair Magnuson advised the City Council would consider this application at its September 1, 2020 meeting.
page 231
page 232
DATE: September 1, 2020
TO: Mayor and City Council, City Administrator
FROM: Meredith Lawrence, Recreation Program Coordinator
Cheryl Jacobson, Assistant City Administrator
SUBJECT: Discussion of Rogers Lake Skatepark
COMMENT:
INTRODUCTION
The City Council is asked to discuss the maintenance and operation of the Rogers Lake Skatepark.
BACKGROUND
In the early 2000’s, the City worked with the interested community members to design a city
skatepark. In 2003, the approval was received to build and install a Tier 1 skate park (including
ramps, jumps and obstacles) at Rogers Lake park within the fenced area of the then underutilized
tennis court. The skatepark opened in 2004.
The skatepark is part of the park system and is operated and maintained by the City. The skatepark
is utilized by skate boarders, in-line skaters, and BMX bikers of all ages and abilities. The park is
unsupervised and operates under the same park rules (e.g. hours of operation, etc.) as other city
parks.
Over the course of the past few years, the operation and maintenance of the skatepark has become
more challenging. The facility’s structural features have started to show their age and renovations
and improvements are needed. Additionally, there are several operational difficulties including
park location, frequent vandalism, do-it-yourself modifications and additions by users, and overall
public safety concerns.
At the September 1 City Council meeting, staff will present and discuss with the City Council the
future operation of the skatepark. The City Council is asked to consider options including:
• Provide the necessary funding to improve, upgrade and renovate park features, and address
operational challenges; or
• Maintain funding levels to support routine maintenance as is done currently, and address
operational challenges; or
• Close the skatepark and repurpose the park space for a different park amenity; or
• Some combination of the above
page 233
RECOMMENDATION
Staff recommends that the City Council discuss the future operation of the Rogers Lake Skatepark
and provide staff with direction regarding next steps.
ACTION REQUIRED
If Council concurs, it should, discuss the future operation of the Rogers Lake Skatepark and
provide staff with direction regarding next steps.
page 234