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CCP 02-24-15
f I (l C["I'Y OF Our Mission is to Provide Otrality Public-Services in a Fiscally Responsible LAKE E L M O Manner IY/bile 1'reserning the City Open Space Character NOTICE OF MEETING City Council Meeting Tuesday, February 24, 2015 7:00 P.M. City of Lake Elmo 13800 Laverne Avenue North ends A. Call to Order B. Pledge of Allegiance C. Roll Call D. Order of Business E. Approval of Agenda F. Accept Minutes 1. Accept February 3,2015 City Council Meeting Minutes 2. Accept February 5,2015 Special City Council Meeting Minutes G. Council Reports H. Presentations/Public Comments/Inquiries I. Finance Consent Agenda 3. Approve Payment of Disbursements and Payroll 4. Accept Financial Report dated January 31, 2015 5. Accept Building Report dated January 31,2015 G. Accept City Assessor Report dated January 31,2015 7. Jane Road 201 Wastewater System- Approve Site Testing and Monitoring Plan 8. 2015 Seal Coat Project- West Lakeland Township Joint Services Agreement 9. 2015 Seal Coat Project-Authorize Preparation of Plans and Specifications J. Other Consent Agenda 1o. Planning Commission Appointments 11. Council Minutes Format 12. Hammes Estates 15C Addition Development Agreement Amendment Request; Resolution No. 2015-09 13. Savona Preliminary Plat Resolution Amendment; Resolution No. 2015-10 K. Regular Agenda 14. 39`h Street N: Street Br-Sanitary Sewer Improvements - Change Order No. 3 15. Amend City Facility Use Policy(tabled front previous meeting) 16. Recording of City Meetings (Bloyer request) 17. Ramsey Washington Suburban Cable Commission/Tim Finnerty- Comcast Transfer; Resolution No. 2015-11 18. Financial Planning Services Agreement 19. Water Surface Ordinance Amendment- Ordinary High Water Level- Lake Olson/Demontreville (Bloyer request) L. Discussion Item 20. Rural Area Development Discussion-No 1Vlemo (Bloyer request) M. Staff Reports and Announcements N. Executive Session to discuss pending or potential litigation relating to non-public employment matter. O. Adjourn LAKE ELMO CITY COUNCIL MINUTES FEBRUARY 3, 2015 CITY OF LAKE ELMO CITY COUNCIL MINUTES FEBRUARY 3,2015 Mayor Pearson called the meeting to order at 7.•00 pm. PRESENT:Mayor Mike Pearson and Council Members Julie Fliflet,Anne Smith,and Jill Lundgren. ABSENT: Council Member Bloyer Staff present: City Administrator Zuleger, City Attorney Snyder, Community Development Director Klatt, City Engineer Griffin,Finance Director Bendel,and City Clerk Bell. PLEDGE OF ALLIGENCE APPROVAL OF AGENDA Council Member Lundgren asked to add Item 9b.Mayor Pearson asked to remove Item 12. Council Member Smith pulled Items 7,9,and 10 for discussion.Council Member Fliflet pulled Items 8 and 9b for discussion. MOTION.•Council Member Lundgren moved TO APPROVE THE FEBRUARY3, 2014 CITY COUNCIL AGENDA AS AMENDED. Mayor Pearson seconded the motion. MOTION PASSED 3-1 (LUNDGREN NAY). ITEM 1:ACCEPT MINUTES The Council discussed changes to the submitted minutes. THE JANUARY 13, 2014 CITY COUNCIL MINUTES WERE APPROVED AS AMENDED BY CONSENSUS. THE JANUARY 20, 2014 CITY COUNCIL MINUTES WERE APPROVED AS AMENDED BY CONSENSUS. COUNCIL REPORTS: Mayor Pearson: attended Cable Commission and Lake Elmo Park Commission meetings.Met with residents on a code compliance issue; the mayor took issue with previous statements made regarding his interaction with a resident during past lake use meeting.Mayor Pearson recounted what his viewing of the video showed and his recent conversations with subject.He and the subject hoped for a compromise. Council Member Smith: Met with Council Member Fliflet and Washington County Commissioner Kriesel regarding library. Continuing discussions on finding a solution. Council Member Fliflet echoed the positive meeting sentiment. Council Member Fliflet: residents have concerns regarding traffic on Hwy 5. She would like staff to help coordinate an in-person meeting with state. Council Member Lundgren: worked on AED funding; talked to John Schiltz and LMC about creating a farmer's market; met with HOA and Valley Branch Watershed District advisory committee regarding milfoil issues. PUBLIC COMMENTS/INQUIRIES Dave Moore, 8680 Stillwater Blvd commended the mayor's maintenance of order.He spoke about previous statements made about sewer in the village.He stated that growth is coming and urged the Council to look at the historyto ensure that mistakes are not repeated.He also voiced his concern about past council meetings. Wally Nelson, 4582 Lilac Lane N., voiced his concerns regarding actions taken at previous meetings including the meeting schedule and committee appointments. Alex Hermon,2008 Paris Cove Ct.,asked how the officials became council members and for how long. FINANCE CONSENT AGENDA Page 1 of 5 i LAKE ELMO CITY COUNCIL MINUTES FEBRUARY 3,2015 3. Approve Payment of Disbursements and Payroll 4. 39th Street N.Street&Sanitary Sewer Improvements-Change Order No.2 5. Pumphouse No.4 Improvements -Compensating Change Order No.2 6. Pumphouse No.4 Improvements -Pay Request No.7 7. MOTION. Council Member Smith moved TO APPROVE THE FINANCE CONSENT AGENDA AS PRESENTED. Council Member Lwndgren seconded the motion. MOTION PASSED 4-0. ITEM 7: 2015 COMPENSATION ADJUSTMENTS Council Member Smith asked if the pay adjustments have historically been effective retroactively. Finance Director Bendel stated that they had not. MOTION.Mayor Pearson moved TO APPROVE THE 2015 COMPENSATIONADJUSTMENTS OF $34,297 AS RECOMMENDED BY THE CITY STAFF IN ACCORDANCE WITH THE 2015 CITY OF LAKE ELMO BUDGET AND GUIDED BY SATISFACTORY PERFORMANCE REVIEWS AND THE 2013 DPW CLASSIFICATION MATRIX IN THE SAME MANNER AS LAST YEAR. Council Member Fret seconded the motion. MOTION PASSED 3-1(SMITH-NAY). Council Member Smith requested a friendly amendment to look back at previous years to see if adjustments have ever been retroactive.The amendment was not accepted. OTHER CONSENT AGENDA ITEM 8: DESIGNATE OFFICIAL PUBLICATION NEWSPAPER OF RECORD MOTION. Council Member Fret moved TO DESIGNATE THE OAKDALE-LAKE ELMO REVIEW AS THE OFFICIAL NEWSPAPER OFRECORD FOR 2015AND DESIGNATE THE ST.PAUL PIONEER PRESS AS THE BACK-UP OFFICIAL NEWSPAPER ONANAS NEEDED BASIS. Council Member Smitb seconded the motion. MOTIONPASSED 4-0. ITEM 9: PUBLIC SAFETY AND FINANCE COMMITTEE APPOINTMENT Council Members Smith,Fliflet and Lundgren explained their opposition to the appointment of the former council member. Wally Nelson, 4582 Lilac Lane N., apologized to council if he was viewed as inappropriate, but believes he would continue to be an asset. MOTION.•_Vayor Pearson moved TO APPOINT WALLY NELSON TO THE LAKE ELMO PUBLIC SAFETY COMMITTEE. Them was no second. MOTION FAILS FOR LACK OF SECOND. Mayor Pearson explained his disappointment with the failure to appoint Mr.Nelson and why he thought Mr. Nelson has been an asset to the City's financial status. ITEM 9B: PLANNING COMMISSION APPOINTMENT MOTION: Council Member 1,undgmn moved TO APPOINT GARY FIELDS AS A FULL VOTING MEMBER OF THE PLANNING COMMISSION.Mayor Pearson seconded the motion. Council Member Fliflet noted that there may be multiple applicants who still may apply and would like to wait and appoint all new members at the same time. MOTION PASSED 4-0. ITEM 10:AMEND CITY FACILITY USE POLICY MOTION.•Mayor Pearson moved TO AMEND THE CITY OF LAKE ELMO PUBLIC FACILITY USE POLICY TO INCLUDE A PROVISION THAT ALL STATUTORILY CREATED PUBLIC BODIES AND TAXING AUTHORITIES USING THE CITY'S MEETING FACILITIES VIDEO RECORD THEIR PROCEEDINGS IN THE INTEREST OF PUBLIC TRANSPARENCY. Council Member Smith seconded the motion. Page 2 of 5 LAKE ELMO CITY COUNCIL MINUTES FEBRUARY 3,2015 Council Member Lundgren stated that she know the Valley Branch Watershed District does not want to record their meetings. It was noted that it is not statutorily required.Mayor Pearson explained he is in favor of public transparency. Council Member Fliflet does not believe there is a transparency issue because they are open public meetings. Council Member Lundgren would like to table the item until Council Member Bloyer is back MOTION. Mayor Pearson moved TO TABLE THE ITEM. Council Member Smith seconded the motion. MOTIONPASSED 4-0. REGULAR AGENDA ITEM 11: BLINKOFF POOL — SALE OF PROPERTY IN DEMONTREVILLE WILDLIFE PARK, RES NO 2015--05,RES.NO.2015--06, VACATION PUBLIC HEARING Community Development Director Klatt provided overview of the background. He explained the land sale discussion at the planning commission and the two recommended additional findings. Staff explained the reason the initial estimate given to the Parks Commission was not obtained. The estimate was based on the market value and City Assessor appraisal. City Attorney Snyder explained the legal options and implications of each. The question of whether the City would ever want to develop the park land was posed. It was pointed out that there is a natural gas pipeline running across the entire wildlife park that would make future development difficult. Mr. Snyder was comfortable with proposed solution. It was noted that a formal appraisal would cost the city couple thousand dollars. MOTION. Mayor Pearson moved TO OPEN PUBLIC HEARING. Council Member Lundgren seconded the motion. MOTIONPASSED 4-0.PubRc`Hearing Opened at 8.23pm David and Mary Blinkoff, 7920 DeMontreville Trail North, explained how the pool was permitted and installed.City Administrator Zuleger noted that the initial asking price offered the owners was $6,000.00.The Blinkoffs explained that they had done everything in good faith,but the local contractor has been responsible for the location.It was pointed out that the issue is time sensitive with the sale of their property. MOTION. Council Member Smith moved TO CLOSE PUBLIC HEARING. Council Member Lundgren seconded the motion. MOTION PASSED 4-0.Public Heating Closed at 8:27pm Mayor Pearson recused himself.His company did not install the pool,but may service it. MOTION A: Council Member Lundgren moved TO APPROVE RESOLUTION NO. 2015--05, A RESOLUTION VACATING A PORTION OF PUBLIC PARK LAND. Council Member FlIet seconded the motion. MOTIONA PASSED 3-0-1. (Pearson abstained) MOTION B. Council Member Lundgren moved TO APPROVE RESOLUTION NO. 2015-06, A RESOLUTION AUTHORIZING THE SALE OF CITY PROPERTY FOR $3,000. Council Member Fliflet seconded the motion.MOTIONB PASSED 4-0 Council Member Smith expressed her sympathy for the Blinkoffs but explained she would have preferred a higher negotiation price. Council Member Fliflet noted she wants to make sure it is clear this is not setting a precedent. City Clerk Bell explained that the previous question (Motion A) needs to be reconsidered as the vacation legally requires a 4/5 vote for approval. City Attorney Snyder stated that there is no conflict for the Mayor's vote. RECONSIDERATION OF MOTION A: Council Member Smith moved TO APPROVE RESOLUTION NO. 2015-05, A RESOLUTION VACATING A PORTION OF PUBLIC PARK LAND. Council Member Lundgren seconded the motion. MOTIONA PASSED 4-0. Point ofprivilege taken at 8:33pm.Reconvened at 8:40 pm. ITEM 13: 5TH STREET LANDSCAPING AND LIGHTING PLAN REVIEW Page 3 of 5 LAKE ELMO CITY COUNCIL MINUTES FEBRUARY 3,2015 Community Development Director Klatt presented the proposed 5th St. landscape design. Council Member Bloyer called in to meeting via phone. Council Member Lundgren asked about the acorn lamps and the dark skypolicy.It was explained that theywill be in compliant. The turn lanes were discussed. The plan does include left turn lanes and right in, right out turn lanes. There will be main neighborhood access points.It was explained that MSA roads require certain specifications. It was explained that the City will be responsible for maintenance.The homeowners do not abut the road,so the City will be responsible for it. It was noted that there has been Public Works input on the impact.It was also explained that the developers will be responsible for initial plantings. The replacement plantings will be City's responsibility. No FormalAction Requested ITEM 14: PLANNING COMMISSION WORK PLAN FOR 2015 Community Development Director Klatt presented the 2015 Planning Work Plan.The Council discussed the status of the Village Area planning.It was clarified that the chart did not indicate that it is complete. Mayor Pearson asked that the scope of the Village Work Group be defined and meetings be recorded. Council Member Bloyer asked if the meetings will be recorded. The council discussed the Village Work Group status. Council Member Bloyer's participation was discussed. It was explained that he is not able to vote by teleconference. No formal action taken ITEM 15: EASTON VILLAGE FINAL PLAT;RES.NO.2019--07 Community Development Director Klatt provided summary of the final plat proposal and the related changes from the preliminary plat. Remaining critical issues are 1) storm water management, 2) east village sewer trunk project, 3) platting of out lots, 4) airport (MAC) issues, and 5) final routine checklist items for plat approval.Planning Commission recommended approval 5-1. The required disclosure statement was discussed. Staff currently does not receive any complaints about the airport. The airport safety zones were discussed. The method of delivery of the disclosure statement to subsequent owners was discussed The lack of an identified builder was discussed The developer stated that he is still negotiating with builders. City Attorney Snyder explained that it is common in PUD applications to have a specified builder. The fact that there are a large number of walkout basements included in the proposal was discussed Whether all the conditions have been met was discussed Mr. Klatt stated that it is staff's opinion that the conditions have been sufficiently met to proceed for final plat approval.Mr.Snyder recommended to Council to make it clear that the future railroad crossing costs be borne by the developer. The proposed street names were discussed.There are concerns about causing confusion with non-connecting streets. The temporary access on Manning Ave. was discussed The developer explained his timeline. The park land credit was discussed It was noted that the Council wants the outlots addressed in the developer agreement. Possible future village design standards and how they would affect the approved plat were discussed. It was explained that there is a two-year timeframe from final plat approval that proposals are grandfathered in.It was also clarified that the Watershed did not specifically require all walkouts. The comprehensive plan's guiding principles for the Old Village were discussed. Mr. Klatt explained that preliminary plat approval includes comp plan compliance. The future railroad crossing and who would bear the costs were further discussed. It was clarified that the staff position is that the developer agreement will address the issue. The developer would prefer to have the costs assigned at a later phase,possibly with the future development plat to the north that will actually include the crossing.The Council opinion is that it is inevitable and favors addressing it sooner rather than later. MOTION. Council Member Smith moved TO TABLE THE ITEM. Council Member Flaflet seconded the motion. MOTIONA PASSED 4-0. Page 4 of 5 LAKE ELMO CITY COUNCIL MINUTES FEBRUARY 3,2015 Council Member Bloyer asked about Resolution 2014-46 comp plan amendment. He also requested that a land use discussion that allows 2.5 acre parcels be placed on next agenda; would like to file a formal data request from the Library Board regarding previous tenant Serenity Hypnosis and Massage. The Council decided to let the attorney decide any investigation issues. STAFF REPORTS AND ANNOUNCEMENTS City Administrator Zuleger: meeting with Adam Dunnick from Met Council on Friday 2/6/15 at 11:30 at Lake Elmo Inn; Carriage Station survey is complete; code enforcement review; There are two potential commercial buildings being proposed on I94 corridor;met with school site selectors. City Finance Director: working on year-end processing and downtown numbers. Council Member Fliflet recognized the large amount of work that the finance director has had in January. City Attorney Snyder: requested that two council members meet with him on code enforcement issue. Council Members Smith and Lundgren volunteered. Community Development Director Klatt:No report. ``� City Engineer Griffin:No report. City Clerk Bell: Noted that there is a special meeting Thursday, February 5th at 7:00 pm here at City Hall. The February 17th City Council meeting has been rescheduled to February24th at 7:00 pm.The Elmo Liquor License applicant will be meeting with the staff to consider zoning text amendment. Mayor Pearson Adjourned the meeting at 11.07pm. Wk LAKE ELMO CITY COUNCIL ATTEST: `` Mike Pearson,Mayor WE Adam K Bell,City Clerk =- ` Page 5 of 5 LAKE ELMO SPECIAL CITY COUNCIL MINUTES FEBRUARY 5, 2015 CITY OF LAKE ELMO SPECIAL CITY COUNCIL MINUTES FEBRUARY 5,2015 Mayor Pearson called the meeting to order at 7.•00 pm. PRESENT:Mayor Mike Pearson and Council Members Fliflet,Smith,Bloyer and Lundgren Staff present: Finance Director Bendel, City Attorney Snyder, Community Development Director Klatt, City Engineer Griffin,City Planner Johnson,City Administrator Zuleger,and Deputy Clerk Gumatz. PLEDGE OF ALLEGIANCE ITEM II: MUNICIPAL CONSENT ON PHASE 1 OF THE DOWNTOWN STREET AND UTILITY PROJECT,RESOLUTION NO.2015-08 City Administrator Zuleger gave an overview of how this project got moved up from 2018 to 2015.Many residents in the old village were having problems with their septic systems, as well as flooding issues each spring. City Administrator Zuleger also explained municipal consent and what the next steps are. Washington County Deputy Public Works Director Wayne Sandberg spoke about some of the problems in the old village. He also spoke about Washington County's role in this project and the cunty's partnership with the city. Mr. Sandberg also explained what would happen if Lake Elmo chose to delay this project. Washington County Commissioner Gary Kriesel also talked about the partnership between Lake Elmo and Washington County. City Planner Nick Johnson gave a presentation about Phase I Downtown Street and Utility Project.This includes Laverne Ave.,Upper 33rd St., 36th St., and the Regional Stormwater Improvements (downstream).Planner Johnson went over the proposed project schedule as well as gave an overview of what Municipal Consent is.The Preliminary Design for Phase I was outlined. There was further discussion about what would happen if the city did not approve or chose to delay Phase I. The Preliminary Design for Phase I outline presentation was continued. Planner Johnson presented options for 36th Street and Laverne Avenue north of 36th Street. Frank Squadrito,3570 Laverne Ave.,spoke about flooding issues on his property.He also spoke about his desire for city sewer and to see the water issues corrected. Dave Faint,3617 Laverne Ave.,spoke about the flooding issues on his property.He voiced his support for storm sewer. He also said that he prefers Option 2 for both Laverne Ave and 36th St.Mr.Faint also stated his concern for the flooding that takes place in the alley between Laverne and Layton. Bill Wacker, 3603 Laverne Ave., asked about extending 36th street. He also spoke about traffic in the old village when Lake Elmo Avenue is tom up.He felt that Lake Elmo Avenue should be redone first before the city roads. City Engineer Jack Griffin explained why the city streets were being done prior to Lake Elmo Avenue. Susan Dunn, 11018 Upper 33rd St N., thanked Washington County for partnering with the city. She also spoke about drainage issues in the old village. She hopes that Washington County is working with the Valley Branch Watershed District on this project.She also asked about the size of the pipes being used. Finance Director Bendel gave a report on the financial considerations regarding the project. The 2015 budget included this project at$8.2 million and now it is at$10 million.There was further discussion regarding the financing of the project as well as future sewer. City Administrator Zuleger spoke about some funding options for sewer. The city is looking at various grants to help pay for sewer costs. Stewart Johnson, 3603 Lake Elmo Avenue,is happy to see the improvements conung. He is also concerned about tree removal.He also spoke about assessment methodology. Page 1 of 2 LAKE ELMO SPECIAL CITY COUNCIL MINUTES FEBRUARY 5,2015 The trees and landscaping plan was discussed. Most of the decisions regarding what types of trees will be used as replacement trees will be made at a later date. Meeting recessed at 9.20pm.Meeting reconvened at 9.27pm. MOTION. Council Member Bloyer moved THAT AS WE MOVE FORWARD WITH MUNICIPAL CONSENT WE STRIP THE SIDEWALKS FROM EVERY STREET IN PHASE L Mayor Pearson seconded the motion. There was further discussion regarding sidewalks. There was also discussion about putting an overpass or underpass across Highway 5 and what the costs would be. MOTION FAILED 1-4(BL0YER-AYE). MOTION.• Mayor Pearson moved TO RECOMMEND APPROVAL OF RESOLUTION NO. 2015-08, APPROVING MU1VICL4L CONSENT FOR PHASE I OF THE DOWNTOWN STREET AND UTILITY PROJECT. Council Member Bloyer seconded the motion. The options for parking and sidewalks on Laverne Ave.were discussed.Option 1 includes parking and sidewalks on both sides of Laveme Ave. north of 36th Street. Option 2 has parking and sidewalks only on the west side of Laverne Ave. north of 361h Street. FIRST MOTION TO AMEND: Council Member Smith moved TO AMEND FOR LAVERNE AVE NORTH OF 36TH GO WITH OPTION 2.Mayor Pearson seconded the motion to amend The two options for Laverne Ave.north of 36th Street were further discussed.The Planning and Engineering perspectives and opinions were given.They both recommended sidewalks on each side of Laverne Ave. FIRST MOTION TO AMEND PASSED 3 2(SMITH/BLOYER—NA19. The regional stormwater management plan was discussed. Frank Ticknor from Washington County explained the stormwater management plan that the county is proposing. Placement of the stormwater pond was debated. It was explained that there are not very many places where the pond can be put because of the size needed. SECOND MOTION TO AMEND:Council Member Smith moved TO AMEND FOR 36TH STREET TO GO WITH OPTION L Council Member Bloyer seconded the motion to amend SECOND MOTION TO AMEND PASSED 5--0. ORIGINAL MOTION PASSED AS"ENDED 5--0. Mayor Pearson adjourned meeting at 10.•48pm. LAKE ELMO CITY COUNCIL ATTEST: Mike Pearson,Mayor Beckie Gumatz,Deputy Clerk Page 2 of 2 THE CITY UP LAKE ELMO MAYOR & COUNCIL COMMUNICATION DATE: February 24, 2015 CONSENT ITEM #3 MOTION AGENDA ITEM: Approve Disbursements in the amount of$247,751.86 SUBMITTED BY: Cathy Bendel, Finance Director THROUGH: Cathy Bendel, Finance Director REVIEWED BY: Dean Zuleger, City Administrator SUGGESTED ORDER OF BUSINESS: - Introduction of Item..............................................................City Administrator - Report/Presentation................................................City Administrator Questions from Council to Staff............................................. Mayor Facilitates - Call for Motion...............................................................Mayor& City Council Discussion.......................................................................Mayor& City Council - Action on Motion.................................................................... Mayor Facilitates POLICY RECOMMENDER: Finance FISCAL IMPACT: $247,751.86 SUMMARY AND ACTION REQUESTED: As part of its Consent Agenda, the City Council is asked to approve disbursements in the amount of$247,751.86. No specific motion is needed as this is recommended to be part of the Consent Agenda. LEGISLATIVE HISTORY: NA --page 1 -- City Council Meeting [Consent Agenda Item 3] February 24,2015 BACKGROUND INFORMATION/STAFF REPORT: The City of Lake Elmo has the fiduciary responsibility to conduct normal business operations. Below is a summary of current claims to be disbursed and paid in accordance with State law and City policies and procedures. Claim# Amount Description ACH $ 11,843.64 Payroll Taxes to IRS &MN Dept of Revenue 2/19/2015 ACH $ 6,417.85 Payroll Retirement to PERA 2/19/2015 DD6090-DD6111 $ 30,217.08 Payroll Dated(Direct Deposits)2/19/2015 42371-43425 $ 196,933.29 Accounts Payable 2/24/2015 2626-2663 $ 2,340.00 Library Card Reimbursement 2/24/2015 TOTAL $ 247,751.86 RECOMMENDATION: Based on the aforementioned, the staff recommends the City Council approve as part of the Consent Agenda the aforementioned disbursements in the amount of $247,751.86. ATTACHMENTS: 1. Accounts Payable—check registers --page 2-- _ O O O O O O O O ^ U O O O O O O O v v z z z z z z z z z 4t oll h i� d C.' C U c o Z i ems. O N O a i. 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M M M M a M M M M N N N N rq j O N O M C 00 y CO' N > a3 N p N o 3 a, v In y a ....i cc cV 3 N O O � N ^ o Dam _ o r THE CITY OF LAKE ELMO MAYOR & COUNCIL COMMUNICATION DATE: February 24, 2015 CONSENT ITEM #4 MOTION AGENDA ITEM: January 2015 Financial Reporting SUBMITTED BY: Cathy Bendel, Finance Director THROUGH: Cathy Bendel, Finance Director SUGGESTED ORDER OF BUSINESS: - Introduction of Item..............................................................City Administrator - Report/Presentation................................................City Administrator - Questions from Council to Staff.............................................Mayor Facilitates - Call for Motion ...............................................................Mayor& City Council - Discussion.......................................................................Mayor& City Council - Action on Motion....................................................................Mayor Facilitates POLICY RECOMMENDER: Finance FISCAL IMPACT: NA SUMMARY AND ACTION REQUESTED: As part of its Consent Agenda, the City Council is asked to accept the January 2015 Financial Reporting Packet. No specific motion is needed as this is recommended to be part of the overall approval of the Consent Agenda. BACKGROUND INFORMATION: The City of Lake Elmo has fiduciary authority and responsibility to conduct normal business operations and report the financial (unaudited) statement to the City Council. City guidelines suggest the Council be updated on a regular basis. STAFF REPORT: Attached please find the comparative financial statements for the month of January 2015 reflecting the monthly and year to date detail, comparing the actual results to the 2015 Budget. --page 1 -- City Council Meeting [Consent Agenda Item 4] February 24,2015 GENERAL FUND: The most significant budget to actual variances are highlighted below: Revenues: • Building Permit revenue for the month was 41% below budget. The budget was compiled for the full year only and the amount shown for the month of January is 1/12th of the total budgeted for the year. This represents 5 new home starts. • Sewer Permit revenue for the month was 100%below budget due to there being no new sewer permits in the month of January. • Zoning and permit revenue was 100% above budget due to the budget for January being zero. • Fine revenue for the month was 43% below budget. This is primarily a timing issue as there is very little court activity in January and the budget amount represents 1/12"' of the annual budgeted amount. Expenses: Most departments were at or below budget for the month due to the on-going diligent management of expenditures to the bottom line. A few items to note: • Mayor and Council —The League of MN annual dues cover 9/1 — 8/31 each year. As a result, the amount in January is the carryover amount paid in 2014 as well as the annual contribution of$5,000 made to the Youth Services Bureau in January for 2015. • Planning and Zoning — FT Salary expense is above budget due to as there not being as much billable developer activity to offset toward escrow proceeds as anticipated in the budget. • Engineering services expense is 24% above budget due to more general fund activity being worked on than anticipated in the budget. • City Hall—Repairs and Maintenance Bldg—The repairs and maintenance expense for the month was 188% above budget due to having to do some electrical work in the new space which was not planned for in the budget($1,068). • Fire—Repairs and Maintenance Bldg—The repairs and maintenance expense for January is $1,350 above budget due to there being a cost savings opportunity by paying for the annual lawn service up front for the two fire stations. This is a timing issue that will catch up throughout the year. • Building Inspection — The building inspection expenses are 46% below budget due to their utilization of a contracted inspector until the permit volume ramps up to a level justifying a staff addition. • Sand & Salt—Salt expense for the month was 6% above budget for the month of January. --page 2-- City Council Meeting [Consent Agenda Item 4] February 24,2015 RECOMMENDATION: Based on the aforementioned, the staff recommends the City Council accept the attached January Financial Report. ATTACHMENT: 1. January Financial Reports --page 3 -- e e a e e e e e e e o 0 0 0 o a e e G x b o b o M1 .. c F N � vS c ri ra vi e � vi c � vi o v o a r e 0 F } W O N O h O\ N O R R O h O O O C Q Vf O r O M1 N O O n O O n ^ W O O !I VI 0' r O N VI 0' 00 O O VI O R C Vl R M1 1 N R M1 � 0 R r ? N N VMI m e O o O o e O o 0 o e e e O e c o e O h N O ? 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W Fl C `o c F •• Z o •� 8 a F c a w Y 12 $ a F •E o ,__ x_ 6 '� ._._._ R _ S w 2 w c E ` z n ��~�V L c�z.c '0•'3� E �� �c��.= F�r H H Z F f ' ; � _ � m `� THE CITY OF LAKE ELMO MAYOR & COUNCIL COMMUNICATION DATE: February 24, 2015 CONSENT ITEM 5 AGENDA ITEM: New Single Family Home Pen-nit Report SUBMITTED BY: Rick Chase, Building Official THROUGH: Rick Chase, Building Official REVIEWED BY: Kyle Klatt, Planning Director SUGGESTED ORDER OF BUSINESS: - Introduction of Item.............................................................. City Administrator - Report/Presentation................................................City Administrator Questions from Council to Staff..............................................Mayor Facilitates - Call for Motion............................................................... Mayor& City Council - Discussion....................................................................... Mayor & City Council - Action on Motion.....................................................................Mayor Facilitates SUMMARY AND ACTION REQUESTED: As part of its Consent Agenda, the City Council is asked to accept the monthly new single family home pen-nit report through January, 2015. No specific motion is needed as this is recommended as part of the Consent Agenda. LEGISLATIVE HISTORY/BACKGROUND INFORMATION: 2015 2014 2013 New Homes 5 0 2 Total valuation $2,306,688 NA $806,200 Average home value 461,333 NA 403,100 Total Valuation year 3,946,191 167,840 861,994 RECOMMENDATION: Based on the aforementioned, the staff recommends the City Council accept the January, 2015 monthly new home building permit report. --page 1 -- THE CITY OF LAKE ELMO MAYOR & COUNCIL COMMUNICATION DATE: February 24, 2015 CONSENT ITEM# 6 AGENDA ITEM: Monthly Assessor Report SUBMITTED BY: Dan Raboin, City Assessor THROUGH: Cathy Bendel, Finance Director REVIEWED BY: Cathy Bendel, Finance Director SUGGESTED ORDER OF BUSINESS: - Introduction of Item.............................................................. City Administrator - Report/Presentation................................................City Administrator Questions from Council to Staff..............................................Mayor Facilitates - Call for Motion............................................................... Mayor& City Council - Discussion....................................................................... Mayor& City Council - Action on Motion.....................................................................Mayor Facilitates SUMMARY AND ACTION REQUESTED: As part of its Consent Agenda, the City Council is asked to accept the monthly assessor report for through January 2015 outlining work performed on behalf of the City of Lake Elmo. No specific motion is needed as this is recommended as part of the Consent Agenda. LEGISLATIVE HISTORY/BACKGROUND INFORMATION: Property splits/plats— 0 Sales collected and viewed— 8 Taxpayer inquiries—4 Miscellaneous inquiries - 5 Inspections—Residential—2; Commercial—0 Building pen-nit reviews— 8 Pictures taken— 1 Other work performed included: • Completion of 2015 assessments • Sales analysis, land values and neighborhood values --page 1 -- City Council Meeting [Consent Agenda Item 61 February 24,2015 • Monthly meeting with County residential and commercial supervisors • Input of all inspection and permit work • Perform sales verifications and land value analysis using MLS and other resources • Field telephone inquiries RECOMMENDATION: Based on the aforementioned, the staff recommends the City Council accept the January 2015 monthly assessor report. --page 2 -- I'I IG Cfll UI LAKE ELMO MAYOR & COUNCIL COMMUNICATION DATE: February 24, 2015 CONSENT ITEM# 7 AGENDA ITEM: Jane Road 201 Wastewater System(Tri-Lakes Remote D)—Approve Soil Testing and Monitoring Plan SUBMITTED BY: Ryan Stempski, Assistant City Engineer THROUGH: Dean A. Zuleger, City Administrator REVIEWED BY: Jack Griffin, City Engineer Mike Bouthilet, Public Works Cathy Bendel, Finance Director SUGGESTED ORDER OF BUSINESS (if removed from the ConsentAQenda): - Questions from Council to Staff.............................................Mayor Facilitates - Public Input, if Appropriate........................................Mayor Facilitates - Call for Motion ...............................................................Mayor&City Council - Discussion.......................................................................Mayor& City Council - Action on Motion....................................................................Mayor Facilitates POLICY RECOMMENDER: Engineering/Public Works. FISCAL IMPACT: $6,400.00. The estimated cost to coordinate, manage, and complete the recommended soil testing and monitoring plan for the Jane Road 201 Wastewater System is $6,400. This includes $3,600 for Soil Investigation and Design to install 2 piezometers to track groundwater movements, to excavate and review the distribution boxes, and to prepare a report on the findings. This also includes $2,800 for FOCUS Engineering to coordinate the work of Soil Investigation and Design, coordinate the work with Public Works to make the physical excavations on the site, and to work with Washington County regarding the code requirements and corrective action plan. Staff will track all costs associated with this work. As a potential public improvement the total project costs may be assessed to the benefitting property owners. --page 1 -- City Council Meeting [Consent Agenda Item 7] February 24,2015 SUMMARY AND ACTION REQUESTED: The City Council is respectfully requested to approve a soil testing and monitoring plan for the Jane Road 201 Wastewater System to be completed by Soil Investigation&Design, Inc.,Public Works,and FOCUS Engineering.If removed from the consent agenda,the recommended motion for this action is as follows: "Move to approve the soil testing and monitoring plan on the Jane Road 201 Wastewater System (Tri- Lakes Remote D) in the not to exceed amount of$6,400.00." LEGISLATIVE MSTORYBACKGROUND INFORMATION: At the November 18, 2014 City Council Meeting, staff was directed to investigate potential repair and/or replacement alternatives for the Jane Road 201 Wastewater System (Tri-Lakes Remote D). Staff was approved to spend an amount not to exceed $5,000 in total costs for this investigation. A report of alternatives was prepared by Soils Investigation and Design, Inc., which included a mound system and a pre-treatment system to rehabilitate the existing site. The report identified that rehabilitating the system on site was not feasible due to several site constraints, and if the site had been feasible the costs would range between$90,000 and$110,000.With several issues now discovered on the existing site, staff did does not recommend continuing with on-site replacement alternatives. Staff has also been working with Washington County to better understand the code compliance issues related to the Jane Road 201 wastewater system. Through these efforts it is been identified that additional site testing and monitoring work could provide evidence that the system is working as intended. Staff worked with Washington County and Soil Investigation and Design, Inc. to define the following additional tasks to determine the performance and life expectancy of this system: 1. Review the distribution boxes with Washington County and City Staff to determine characteristics of distribution. 2. Review an excavation pit six feet deep along the south side of the drainfield to determine soil layering and other characteristics. 3. Conduct two soil borings to three feet below the bottom of the existing trench and place two piezometers with data loggers in the borings. Data will be collected on a quarterly basis for a minimum of 12 months. Soil Investigation and Design, Inc.provided a proposal in the not to exceed amount of$3,600 to complete the scope of work identified above (see Attachment No. 1) with Public Work staff completing the trench box excavation work. The additional testing and monitoring is recommended to identify a short term solution for the existing properties currently connected to the system. A long term solution will also need to be researched by the City. This long term solution would potentially include a complete replacement of the existing system on a separate property to be acquired by the City. The Planning Department is in the process of identifying possible sites for this solution. --page 2-- City Council Meeting [Consent Agenda Item 7] February 24,2015 RECOMMENDATION: Staff is recommending that the City Council consider approving, as part of the Consent Agenda, a soil testing and monitoring plan for the Jane Road 201 Wastewater System to be completed by Soil Investigation & Design, Inc., Public Works, and FOCUS Engineering. If removed from the consent agenda, the recommended motion for this action is as follows: "Move to approve the soil testing and monitoring plan on the Jane Road 201 Wastewater System (Tri- Lakes Remote D) in the not to exceed amount of$6,400.00." ATTACHMENT(S): 1. Soil Investigation and Design, Inc. Proposal Dated January 23, 2015. --page 3 -- Soil Investigation and Design, Inc. 2809 78h Ave. N Greater Minnesota Brooklyn Park, MN 55444 Melrose,MN 56352 Metro: 651-260-3783 320-260-8874 pbrandt@soilinvestigations.us January 23, 2015 Mr. Ryan Stempski PE Focus Engineering Lake Elmo, MN 55042 Office: 651.300.4267 ryan.stempski@focusengineeringinc.com Re: Lake Jane 201 Continuing Investigation Dear Mr. Stempski, Thank you for the opportunity to estimate costs for your project.This proposal is for completing an investigation for the existing SSTS located on Parcel ID No. 1002921240030(Tri-Lakes Remote D -201 Wastewater System). We would suggest the following for investigating the existing SSTS (1) Review the distribution boxes with Washington County and City Staff to determine the characteristics of distribution. (Distribution boxes to be exposed by Lake Elmo Public Works for review.) (2) Review an excavation pit six feet deep along the south side of the drainfield to determine soil layering and other soil characteristics. (Excavation pit to be dug by Lake Elmo Public Works.) (3) We would also suggest that we conduct two soil borings to three feet below the bottom of the existing trench(approximately 8 feet deep).Then place two piezometers in the borings. The piezometers shall be placed in the middle of the system along the 940 contour on the north and south end of the drainfreld, a minimum of two feet from the influence of the drainfreld. The piezometers would be constructed using monitoring well materials and construction methods to protect groundwater. We would recommend placing data loggers in the piezometers to track groundwater movement. We would recommend collecting the data on a quarterly basis and providing a short report on the current conditions. We will prepare a letter reports documenting the results,recommendations and conclusions for both piezometer and the trenching investigation. The costs for the various tasks include travel,tools and materials. The services will be provided at a not to exceed amount of$3,600.00. We expect to have the City public works department expose the distribution boxes and complete the pit excavation referenced above, we will provide the seed and erosion control blankets.No work shall be completed beyond the estimate without prior City approval. At the client's option the client may extend the scope of work. We try to bring our projects in under our estimated costs. Proposed Schedule: Week of March 2nd to the 6tb meet with Washington County and City Staff for Task 1. Week of March 9th to the 13th complete soil trench, soil observation and piezometer placement. At the same time install data loggers,piezometers are to be installed prior to snowmelt. Week of March 16th to the 20th complete trench and piezometer placement report Week of July 20th to 25th collect data and produce interim report on water levels in the piezometers. Thank you for this opportunity if you have any questions or need for our services please feel free to contact me at 651-260-3783 and/or pbrandt@soilinvestigations.us Sincerely, fwfiO137 Paul Brandt PSS Principal Scientist Soil Investigation&Design, Inc. Terms of the Agreement I. Services Soil Investigation&Design, Inc., (Consultant), shall perform or subcontract for scientific, engineering and consulting services at the Project Site or Consultant's office(s), according to the provisions of this Agreement and such other proposals, quotations,purchase orders, scopes of work and other addenda which the parties may from time to time incorporate into the agreement. Consultant shall not perform services in excess and beyond the scope of this Agreement unless CLIENT(shall mean person or organization signing authorization) shall specifically direct such services verbally or in writing. II. Compensation CLIENT agrees to pay Consultant for services performed in accordance with the Hourly Rate Schedule provided in the proposal; quotation,purchase order or other addenda that in the future may be attached to this Agreement, or as the parties shall agree from time to time. A statement of estimated cost for services is not a firm figure unless stated as such. If there is no other agreement, CLIENT shall pay for services according to Consultant's most current hourly rate schedule. Cost estimates are based upon the best judgment of the requirements known at the time of the proposal and may be influenced by CLIENT needs and changes. Consultant will perform its services within the estimated costs to the extent practicable and will notify the CLIENT in advance of material variances that will increase the cost of the scope of work. Client understands and agrees to make payment in full to the contract in accordance with this agreement.Client may be entitled to reimbursement through other sources. Delay in the project or in the reimbursement process will not excuse CLIENT from payment in accordance with the terms of this agreement,unless otherwise agreed to in writing by the Consultant. All services are to be provided per the following HOURLY RATE SCHEDULE within the scope of this agreement. HOURLY RATE SCHEDULE Principal Soil Scientist $145 per hour Project Manager $100 per hour Technician $84 per hour The above hourly rate schedule prices are subject to change with a one month notice if the project extends over a one year period. III.Invoices and Payments A statement will be sent monthly for the portion of the services completed to the date of the statement. Full payment is required by the 15th of the month unless prior written arrangements have been made. Failure to timely pay the balance in full by the end of the month shall result in a finance charge of 1.5%per month or an annual interest percentage of approximately 18% applied against the remaining balance. If client does not timely pay account,client agrees to pay consultant for any and all court costs, legal expenses and attorney fees incurred for collection whether or not a lawsuit has been filed. By executing this agreement,the Client hereby agrees to the terms of payment; and if payment is not made on a timely basis, Client agrees to pay all costs of collection. Consultant may, after giving written notice, suspend services without liability until Client has paid in full all amounts due for services rendered and expenses incurred, including interest on past due amounts. In the event Client fails to pay Consultant within sixty(60)days following the invoice date, Consultant may consider the default a total breach of the Agreement,and may,at its option,terminate all of its duties without liability to Client or others. Consultant's suspension or termination of services due to Client's failure to pay in a timely manner,shall not waive Consultant's right to pursue collection of amount owed. You are notified that: The Consultant and any person or company supplying labor or materials for any improvement to the Client's property may file a lien against the Client's property if that person or company is not paid for their contributions. Under Minnesota law,the client has the right to pay persons and/or sub-consultants who supplied labor or materials for improvement(s) directly and deduct this amount from the Consultants contract price. IV.Tax and Fees on Services Client agrees to pay the amount of any tax, licenses or other fee(local, state or federal)specific to this agreement that may be imposed on the provision of services under this Agreement. V.Access Client(under its rights and privileges with respect to the project site) grants to Consultant and its sub-Consultants/contractors the authority and permissions to enter the Project Site where services are to be preformed. VI. Consultant Responsibilities Consultant represents that it is licensed and authorized to work in the State of Minnesota. The performance of services under this Agreement shall meet current scientific and engineering standard in effect in the industry at the time the service are preformed. Services shall be carried out with the degree of care and skill ordinarily exercised under similar circumstances by reputable members of the profession practicing in the same locality. Consultant provides no other representation to CLIENT, express or implied, and no warranty or guarantee is included or intended in the Agreement, or in any report, opinion, document or otherwise. VII. Client Responsibility 1. Consultant and Client affirm that the Client's knowledge of the site is limited in nature. Client agrees to provide Consultant with all of its known information regarding the existing and proposed condition of the Project Site.Client will provide Consultant with any new information as such information becomes available. Client warrants the completeness and accuracy of the information supplied to Consultant and acknowledges that Consultant is relying upon such information in the performance of services under this Agreement. 2. Client shall notify Consultant of any known potential or possible health or safety hazards or conditions existing on or near that Project Site prior to the commencement of services under this Agreement that the Client is aware of. 3. Client shall correctly show on plans or surveys furnished to the Consultant,the location of all subsurface structures, such as pipes,tanks, cables and utilities. Client agrees to indemnify and hold harmless Consultant, its officers, directors, agents, employees and sub-Consultants from and against all claims, damages, losses and related expenses involving subsurface structures that the Client is aware of. 4. Client shall be fully responsible for the cooperation and safety of its employees and/or agents during the provision of services under this Agreement. 5. Client is fully responsible for the reporting of any environmental matters to the proper federal,state and local regulatory authorities as may be required by law.The Client recognizes that the Consultant may also be required by law and/or regulation to report known environmental conditions to regulators. The Client authorizes the Consultant to act as its reporting agent. 6. Client recognized that environmental, geological, hydrogeologic and geotechnical conditions at the Project Site may vary from those encountered during the provision of services under this Agreement.The accuracy of services relating to specific test(e.g., a specific soil boring) may not represent conditions a short distance away. Client acknowledges that the use of tests, calculations, analyses, methods and procedures are in a constant state of refinement by regulatory agencies and advancements in the field. Further, the provision of services relating to development and potential site uses is subject to changing and evolving standards. Client recognized that projects involving development may not occur or develop as anticipated and/or may be subject to government regulations that require the achievement of results not contemplated by Client or which cannot be accomplished under current conditions. 7. Client recognizes and appoints Consultant as the Consultant for this project,to include but not be limited to; the items mentioned in the scope of work, items that may be added by mutual written consent, any testing, design, clean-up, and restoration of the site as needed. CLIENT recognizes that consultant may hire, manage, and dismiss as needed all sub-Consultants. VIII. Samples Consultant shall retain soil,rock,water and other samples from the Project Site for a period of thirty(30) days following the analysis. The samples will be discarded or returned to Client, at Consultant's discretion,unless Client request specific disposition at Client's cost and expense. IX. Reports Unless otherwise directed,Consultant will be provided two(2)copies of each report documenting the provisions of services herein to the Client. All notes, logs, field data,test, laboratory analyses, calculations and other documents,as instruments of service herein,shall remain the property of the Consultant. The Consultant agrees that the Client owns the project reports and has the use of the documents prepared by Consultant for this project on this site and is limited to the defined scope of services identified in this Agreement. Any other use or reuse shall be at Client's sole risk and Client agrees to indemnify, defend and hold harmless Consultant,its officers, directors, agents, employees and sub-Consultants for all claims, damages and expenses arising out of such other use. If Client does not pay for Consultants services, Client agrees that all report and other work will be returned to Consultant and will not be used by Client for any purpose whatsoever. X. Confidentiality The Consultant shall not release any information concerning services under the Agreement except with the express prior authorization of the other Client. However,when by rule or law Consultant is required to report instances or actions the Consultant shall release the required information to the appropriate regulatory agency. Consultant,upon the request of Client, shall execute reasonable and customary confidentiality agreement furnished by Client. Client agrees that Consultant may use and publish Client's name and a general description of services provided in describing Consultant's experience and qualifications to other clients or potential clients. XI.Insurance Consultant shall maintain: 1. Workers compensation and employee liability insurance coverage in accordance with statutory requirements. 2. Comprehensive general and automobile liability insurance coverage. Consultant will furnish a certificate of insurance upon request. If Client requests increased or additional insurance coverage,Consultant will purchase such coverage, if obtainable, at the sole cost and expense of the Client. XII.Limitation of Liability It is understood and agreed that, in seeking consulting services under this agreement,the Client is requesting the Consultant to undertake for the Client's benefit,potentially uninsurable obligation. The Liability of Consultant, its agents and sub-Consultants, for claims of loss or damages in the performance of services under this Agreement, shall not exceed 100% of the compensation received by Consultant as its professional fee under this Agreement. In no event shall the parties hereto or their agents and representatives be liable for special, incidental, consequential or penal losses and/or damages, including but not limited to delay, loss of use, loss of profits, loss of opportunity, loss of product or revenue or cost of capital. The Client agrees to indemnify, defend and hold Consultant and its agents and representatives harmless from and against all claims,losses damages, costs and liabilities relating to this project under this Agreement. XIII. Ownership of Documents All design components, ideas,plans specifications, field data, notes, calculations, estimates and other documents we prepare, as instruments of service, shall remain property of the Consultant. The Consultant agrees that the Client owns the project reports and has the use of the documents prepared by Consultant for this project on this site and is limited to the defined scope of services identified in this Agreement. Client agrees that all reports and other work furnished to the Client or his agents that are not paid for, will be returned upon demand and will not be used by the client for any purpose whatsoever. We will retain pertinent records relating to the services performed for a period of five (5) years following the submission of the report, during which period the records will be made available to the Client at reasonable times for a reasonable fee. Remarks: Our efforts will be directed at performing the work and accomplishing the objectives defined.The estimated cost and schedule are based on the Consultant's judgment of the requirements known at the time of the proposal. The successful completion within cost and schedule limits can be influenced favorably or adversely by changes in work scope and schedules as indicated by the Client's needs. The Consultant will notify the Client in advance if schedule costs are expected to exceed the estimate. In such events,the Client may wish to 1) authorize additional funds to complete the work as originally defined,2)re-define the scope of work in order to fit the remaining funds, or 3)request that work be stopped at a specific expenditure level. MISCELLANEOUS PROVISIONS This Agreement may be terminated by either party upon written notice should the other party fail substantially to perform in accordance with its terms through no fault of the party initiating the termination. Failure of the Client to make payment as provided herein shall be considered substantial non-performance and cause for termination. The Consultant shall be compensated in full for all Services performed to and Expenses incurred as of the termination date together with any cost which are directly attributable to termination which are not otherwise paid. The drawings specifications and other documents may not be used for construction unless the account is paid in full. The Client shall be responsible for all expenses incurred for the collection of hourly and/or fixed fees including but not limited to attorney fees. The Client shall pay Consultant on an hourly basis for all time spent on the Project up to the time of termination. The terms and conditions of this Agreement may be amended only by written instrument signed by both parties Acceptance of this Agreement by separate instrument is limited to the terms contained in the instrument of acceptance, whether in the form of a purchase order, acknowledgment, acceptance or other document. Authorization and Payment Terms Authorization can be initiated by signing both copies of this proposal and returning one copy to Soil Investigation&Design, Inc. Payment will be in accordance with"Section 4: Fee Payment" as outlined on the attached "General Terms and Agreement." Thank you for this opportunity. will be happy to answer any questions you may have regarding this proposal. Authorization for Soil Investigation&Design, Inc.: Soil Investigation&Design, Inc.: 4*4r-eo Authorized Signature Date 7/10/14 Name: Paul Brandt, Principal Scientist AUTHORIZATION FOR THE CLIENT: Client: Authorized Signature Date Name: This proposal is Valid for 30 days unless signed and return TI IC CITY OF LAKE ELMO MAYOR & COUNCIL COMMUNICATION DATE: February 24, 2015 CONSENT ITEM# 8 AGENDA ITEM: 2015 Seal Coat Project—West Lakeland Township Joint Services Agreement SUBMITTED BY: Ryan Stempski, Assistant City Engineer THROUGH: Dean A. Zuleger, City Administrator REVIEWED BY: Jack Griffin, City Engineer Mike Bouthilet, Public Works Cathy Bendel, Finance Director SUGGESTED ORDER OF BUSINESS (if removed front the ConsentAQenda): Questions from Council to Staff............................................. Mayor Facilitates - Public Input, if Appropriate........................................Mayor Facilitates - Call for Motion...............................................................Mayor& City Council - Discussion.......................................................................Mayor& City Council - Action on Motion....................................................................Mayor Facilitates POLICY RECOMMENDER: Engineering. FISCAL IMPACT: Cost savings of $3,000 in engineering and administration services. Seal coat unit price reduction also anticipated based on economy of scale at the time of construction bids. Through a joint project effort, it is anticipated that project cost savings can be realized through an economy of scale and sharing in project expense for preparation of plans and specifications, bidding, and construction administration. In addition, staff believes that by combining the project work for both communities, we can continue to promote a more favorable bidding enviromnent that may result in lower overall construction costs. SUMMARY AND ACTION REQUESTED: The City Council is respectfully requested to consider approving the West Lakeland Township Joint Services Agreement for the 2015 Seal Coat Project. If removed from the consent agenda, the recommended motion for this action is as follows: --page 1 -- City Council Meeting [Consent Agenda Item 8] February 24,2015 "Move to approve the TVest Lakeland Township Joint Services Agreement Pr the 2015 Seal Coat Project." LEGISLATIVE HISTORY/BACKGROUND INFORMATION: Staff has reviewed and updated the Joint Services Agreement with West Lakeland Township in preparation of the 2015 Seal Coat Project. Staff is recommending that the city continue to work jointly with West Lakeland Township to perform seal coating for routine maintenance of city and township streets. The agreement identifies the terms and conditions upon which the City of Lake Elmo prepares and administrates a contract for the 2015 Seal Coat Project to be completed on streets within both the city and township. Each jurisdiction pays its portion of the construction costs and shares in the engineering design, bidding and construction administration costs. The construction observation services would be contracted directly by each jurisdiction. The City of Lake Elmo is defined as the lead entity and prepares the plans and specifications with input from the township. The city bids the project and enters into a contract with the selected contractor for all the work. West Lakeland will pay a fee to the city in the amount of $3,000 to reimburse the city for the design, bidding and construction administration services related to the project. The township will reimburse the city within 30 days of receiving contractor invoices for the work performed by the contractor on West Lakeland streets. RECOMMENDATION: Staff is recommending that the City Council consider approving, as part of the Consent Agenda, the West Lakeland Township Joint Services Agreement for the 2015 Seal Coat Project. If removed from the consent agenda,the recommended motion for this action is as follows: "Move to approve the West Lakeland Township Joint Services Agreement for the 2015 Seal Coat Project." ATTACHMENT(S): 1. West Lakeland Township Joint Services Agreement for the 2015 Seal Coat Project. --page 2-- JOINT SERVICES AGREEMENT FOR THE 2015 SEAL COAT PROJECT This Agreement is made this day of 2015, by and between the West Lakeland Township (hereinafter referred to as "West Lakeland") and the City of Lake Elmo (hereinafter referred to as"Lake Elmo"). WHEREAS, it is the desire of the parties, and it is the purpose of this Agreement, that certain road-related services be performed or contracted by Lake Elmo on behalf of West Lakeland for the purpose of seal coating certain street segments as designated by West Lakeland; NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth below,the above parties hereto agree as follows: 1. Term: The term of this Agreement shall commence upon the date of execution and shall be for the duration of the one year warranty period for the 2015 Seal Coat Project. 2. Services. For the term of this Agreement, Lake Elmo shall provide West Lakeland with the following services in and on behalf of West Lakeland and at the direction of West Lakeland's Engineer: a. Lake Elmo will provide professional engineering services to prepare Plans and Specifications and Contract documents for the 2015 Seal Coat Project. The project will include seal coating of street segments located in West Lakeland, in addition to the street segments located in Lake Elmo for which Lake Elmo is otherwise contracting. b. Prior to March 24, 2015, West Lakeland will provide Lake Elmo with a plan, designating and depicting the street segments to be seal coated in West Lakeland, said plan to be suitabable for inclusion in the Plan documents, along with a tabulation of the estimated quantities (in square yards) showing the seal coating work to be performed in West Lakeland as a part of the project. c. Lake Elmo will advertise the 2015 Seal Coat Project for contractor bids and may award a contract for seal coating, or a portion of thereof, as deemed in the best interests of Lake Elmo. If Lake Elmo awards a contract for the 2015 Seal Coat Project and West Lakeland agrees, the award shall include that portion of streets within West Lakeland. d. Lake Elmo will provide professional engineering services for the construction administration of the contract. e. At its sole cost and expense, West Lakeland will provide a construction observer to inspect the seal coat work performed on West Lakeland streets. 3. Payments. West Lakeland shall make payments to Lake Elmo for services related to the project or directly for services as follows: a. West Lakeland will pay Lake Elmo a fee in the amount of $3,000 for engineering and administration fees performed by Lake Elmo for the seal coat project. Lake Elmo will invoice this amount to West Lakeland once the Lake Elmo City Council accepts the bids and awards the construction contract. b. Lake Elmo will make Contractor payments for all work completed in accordance with the Contract. West Lakeland will reimburse Lake Elmo for the work completed and paid to the contractor in accordance with the contract for the actual quanitites of work performed on West Lakeland streets. c. Lake Elmo will invoice West Lakeland for services to be reimbursed by West Lakeland as outlined above and West Lakeland will pay all invoices within 30 days after receipt of the invoice. Lake Elmo shall include with its invoices copies of the contractor's claims showing the amount charged for the work performed and materials used in West Lakeland. 4. Insurance. Lake Elmo shall require its contractor(s) to provide insurance as specified below, and West Lakeland shall be named as an additional insured on such insurance: Comprehensive General Liability $1,000,000 per occurrence, $2,000,000 aggregate Auto Liability $1,200,000 per occurrenace Workers compensation Statutory amount 5. Indemnification. Lake Elmo agrees to defend, indemnify and hold harmless West Lakeland, and its officials, agents and employees from and against all claims, actions, damages, losses and expenses, including attorneys fees, arising out of or resulting from Lake Elmo's performance of the duties required under this Agreement, provided that any such claim, action, damage, loss or expense is caused in whole or in part by an alleged negligent act, omission, or willful misconduct (including, but not limited to, a claimed breach of contract made by the contractor) of Lake Elmo. Lake Elmo agrees to require, as part of its contract with the contractor used to provide the seal coating, to include West Lakeland in the contractor's indemnification obligation under the contract. West Lakeland agrees to defend, indemnify and hold harmless Lake Elmo, and its officials, agents and employees from and against all claims, actions, damages, losses and expenses, including attorneys' fees, arising out of or resulting from West Lakeland's performance of the duties required of it under this Agreement, provided that any such claim, action, damage, loss or expense is caused in whole or in part by an alleged negligent act or omission or willful misconduct of West Lakeland. This provision shall not be construed as a waiver by either party of any defenses, immunities or limitations on liability to which they are entitled, under Minnesota Statutes, Chapter 466 or otherwise. Under no circumstances shall a party be required to pay on behalf of itself and other parties, any amounts in excess of the limits of liability established in Minnesota Statutes, Chapter 466, applicable to any one party. The limits of liability for some or all of the parties may not be added together to determine the maximum amount of liability for any party. 6. Service Contract. This is a service contract. The parties do not intend to create, and nothing herein shall be construed as creating, a joint powers agreement, joint venture, or joint enterprise. However, to the extent a court of competent jurisdiction may find such a relationship exists, Lake Elmo and West Lakeland shall be considered a single governmental entity as provided 2 in Minnesota Statutes, section 471.59, subdivision la for the purposes of determining total liability. The limits of liability for Lake Elmo and West Lakeland shall not be added together to determine the maximum amount of liability for either party or for any occurrence. 7. Contracting Procedure and Oversight. Lake Elmo shall be solely responsible for letting the contracts for the services to be provided hereunder in accordance with all applicable laws, rules, and regulations. The bonds obtained from the contractor for the work shall include the work to be performed in West Lakeland. Lake Elmo shall,to the extent reasonably necessary, assist West Lakeland to draw upon the performance bond as needed to complete or correct any work the contractor fails to perform in West Lakeland in accordance with the contract. West Lakeland will be responsible for inspecting the work to be performed in West Lakeland, but Lake Elmo shall be responsible for generally overseeing the contractor's performance of services in accordance with the contract. 8. Miscellaneous. This Agreement is solely for the benefit of the parties hereto and no other person shall have any right, claim, or interest in it. 9. Legal Compliance. Both parties agree to comply with all applicable state, federal and local laws, rules and regulations in carrying out their respective obligations under this Agreement. 10. Entire Agreement. This Agreement represents the entire agreement between Lake Elmo and West Lakeland and supersedes and cancels any and all prior agreements or proposals, written or oral, between the parties relating to the subject matter hereof. No amendments, addenda, alterations, or modifications to the terms and conditions of this Agreement shall be effective unless in writing and signed by both parties. IN WITNESS WHEREOF, the parties have set forth their hands on the day and year first written above. CITY OF LAKE ELMO TOWN OF WEST LAKELAND By: By: Its Mayor Its Town Chairperson Date Date By: By: Its City Administrator Its Town Clerk-Treasurer Date Date 3 THE CITY OF LAKE ELMO MAYOR & COUNCIL COMMUNICATION DATE: February 24, 2015 CONSENT ITEM # 9 AGENDA ITEM: 2015 Seal Coat Project—Authorize Preparation of Plans & Specifications SUBMITTED BY: Ryan Stempski, Assistant City Engineer THROUGH: Dean A. Zuleger, City Administrator REVIEWED BY: Jack Griffin, City Engineer Mike Bouthilet, Public Works Cathy Bendel, Finance Director SUGGESTED ORDER OF BUSINESS (if removed front the ConsentA,genda): - Questions from Council to Staff............................................. Mayor Facilitates - Public Input, if Appropriate........................................Mayor Facilitates - Call for Motion...............................................................Mayor& City Council Discussion.......................................................................Mayor& City Council - Action on Motion.................................................................... Mayor Facilitates POLICY RECOMMENDER: Engineering and Public Works. FISCAL IMPACT: $8,500 for Engineering Design, Bidding and Construction Services. Engineering and Public Works have identified the street seginents to be seal coated and crack sealed in 2015. Engineering is estimating the cost for these improvements to be $179,000, which includes $155,000 for seal coating and $24,000 for crack sealing. This estimate includes both engineering and construction related costs. These costs remain within the 2015 Street Maintenance Budget which has programmed $186,578 for this work. This authorization is for the engineering design, bidding and construction services for the project in the amount of $8,500. If the council approves the West Lakeland Township Joint Services Agreement the city will be reimbursed $3,000 of this amount. Once contract bids are received the council will be asked to approve the construction costs for the project. --page 1 -- City Council Meeting [Consent Agenda Item 9] February 24,2015 SUMMARY AND ACTION REQUESTED: The City Council is respectfully requested to consider authorizing the 2015 Seal Coat Project engineering services to initiate the preparation of plans and specifications. If removed from the consent agenda, the recommended motion for this action is as follows: "Move to authorize engineering services to FOCUS Engineering Inc. in the not to exceed amount of$8,500 for the 2015 Seal Coat Project" LEGISLATIVE HISTORYBACKGROUND INFORMATION: As part of the annual street maintenance program, certain street and roadway segments are treated with crack sealing and seal coating to preserve and extend the useful service life of the pavement. The City maintains a 5-year rolling street maintenance plan which identifies and programs paved City streets with a proposed maintenance application and designated year. Best management practices for street maintenance are followed to maximize benefit on the City's investments. Crack sealing will be scheduled in the spring to prepare the streets for the 2015 Seal Coat Project. The proposed 2015 Seal Coat Project will consist of 7.2 miles of City streets including the following neighborhoods or street segments: Hidden Meadows (Rock Point Church), Discover Crossing, St. Croix's Sanctuary, Fields of St. Croix, 42°d Street N, Beaut Crest Estates, 31" Street N from Stillwater Boulevard to TH 5, Jamley Avenue N from 28th Street to 31s' Street, Myron Ellman, Eden Park I" and 2nd Additions, and The Forest. See attached 2015 Seal Coat Project Map. RECOMMENDATION: Staff is recommending that the City Council consider authorizing, as part of the Consent Agenda, the 2015 Seal Coat Project engineering services to initiate the preparation of plans and specifications. If removed from the consent agenda, the recommended motion for this action is as follows: "Move to authorize engineering services to FOCUS Engineering Inc. in the not to exceed amount of$8,500 for the 2015 Seal Coat Project" ATTACHMENT(S): 1. 2015 Seal Coat Project—Location Map --page 2-- llle �IY711.5 /t►'o rhll/' � _f j-. I Tnwrrship _1 Oal�n D 1 � 1 el ! um 1 - LIfE LIR �`r+xrsnlu4A ^C� LI[t LL\T I 10\D r.1<m Ranc•. i CI.a....a Y9 aptoW �. WIlShl cra. war City of 1 Oakdale •. , West , LW-Alanli To►flnshi LI[E L ' P `1(JJ Iv,.T ,�z Jcx«artr- ...Ar�•a �'t 1 1 I F 1 1 _ 1 IRs/SIHD� / S e/ yl Yx $ tp I 5 1IY1' rT— I / 1 1 f City of Wvodhlrr�' .-Y, Of 2015 SEAL COAT PROJECT LOCATION MAP N THE CITY Of' 12 City Hall W E LAKE ELMO afi55La1- avenueN r`� Parcels (3511,[aaoo S "'"`°"" Subdivisions 0.5 0.25 0 0.5 Miles T !� Public Works Building W51dea1[veN City Parks Street Legend (6S1j1d1'3"0 ty (O> Fire Stations • Golf Course Map Date: February 2015 State Hwys ;,;,�°.;a „ Lake Elmo Regional County Roads ""`gin N s i Park Reserve City Streets ::fi1„ .,w„ PoA 015ve r 11511 nwup (8511 aaDAafifi 2015 Seal Coat Project ♦ Schools Lakes Created By:Planning Department F' THE CITY OF c LAKE ELMO MAYOR & COUNCIL COMMUNICATION DATE: February 24,2015 CONSENT ITEM# 10 AGENDA ITEM: Planning Commission Appointments SUBMITTED BY: Beckie Gumatz,Deputy Clerk THROUGH: Dean Zuleger,City Administrator REVIEWED BY: Adam Bell,Assistant City Administrator/City Clerk SUGGESTED ORDER OF BUSINESS(if removed from the Consent Agenda): - Introduction of Item.......................................................................................City Clerk - Report/Presentation.....................................................................City Clerk - Questions from Council to Staff.........................................................Mayor Facilitates - Call for Motion...........................................................................Mayor&City Council - Discussion...................................................................................Mayor&City Council - Action on Motion................................................................................Mayor Facilitates POLICY RECCOMENDER: Mayor Pearson, Staff FISCAL IMPACT: None SUMMARY AND ACTION REQUESTED: Council interviewed Mr. Jess Hartley and Ms. Wendy Griffm prior to the City Council Meeting on February 3, 2015. Per Mayor Pearson's request, Council is now asked to appoint Mr.Hartley and Ms. Griffm to the Planning Commission as alternates. If removed from the Consent Agenda, the recommended action can be approved through the following motions: "Move to appoint Jess Hartley as Alternate I to the Planning Commission." "Move to appoint Wendy Griffin as Alternate 2 to the Planning Commission." LEGISLATIVE HISTORY/BACKGROUND INFORMATION: The Planning Commission consists of 7 full voting members and 2 alternates. At this time, the Planning Commission currently has 2 alternate member openings. RECOMMENDATION: If removed from the Consent Agenda, the recommended action can be approved through the following motion: "Move to appoint Jess Hartley as an Alternate to the Planning Commission." "Move to appoint Wendy Griffin as an Alternate to the Planning Commission." --page 1 -- THF.CATY (A' LAKE ELN10 MAYOR & COUNCIL COMMUNICATION DATE: February 24, 2015 CONSENT ITEM # 11 AGENDA ITEM: Council Minutes Format SUBMITTED BY: Adam Bell, City Clerk THROUGH: Dean Zuleger, City Administrator REVIEWED BY: Beckie Gumatz, Deputy Clerk SUGGESTED ORDER OF BUSINESS: - Introduction of Item............................................................................City Clerk - Report/Presentation...................................................................... Staff - Questions from Council to Staff............................................. Mayor Facilitates - Call for Motion ...............................................................Mayor & City Council Discussion.......................................................................Mayor& City Council - Action on Motion.................................................................... Mayor Facilitates POLICY RECOMMENDER: City Clerk FISCAL IMPACT: None. SUMMARY AND ACTION REQUESTED: The City Council is being asked to accept the City Clerk's proposed format for City Council minutes.No formal action or motion is being requested at this time. LEGISLATIVE HISTORY/BACKGROUND INFORMATION (SWOT): There have been several recent Council and staff discussions about the format and content of various council minutes. Several Council members have requested that the City Clerk identify a solution to attempt to resolve some of the previous disputes based on best practices and related legal requirements. It is the City Clerk's recommendation that the council adopt a more summary form of council minutes. It is staffs belief that the minutes include more detail about the discussion than is necessary or appropriate. In part due to the lack of a quality historical record of previous council actions, staff has been striving to provide a more thorough legislative history, but this attempt at improving the record has been at the expense of overcompensation. As previously mentioned, over the past several months, there have been numerous occasions where the intent and/or content of the individuals speaking during the meetings as reflected in the record have been questioned, discussed, or debated. Including lengthy summaries of what was said can cause a substantial delay in the minutes' completion. This policy would also benefit the council. By adopting a more --page 1 -- City Council Meeting [Regular Agenda Item 11] February 24,2015 F summary format, the council can receive the minutes much sooner and also avoid the he said/she said arguments can and do easily arise. The proposal would not ignore the policy disagreements, but would instead let the record speak for itself. It has become increasingly difficult to interpret € and select what to include, especially with long meetings, as has become normal. € It is the staffs professional opinion, based on formal clerk training and comparing other cities' t best practices, that the minutes should record what was done and why, but not what was said. In addition, with video records now readily available and better quality than ever before,there is no need for detailed summaries of discussion. If a governing body wishes to have verbatim minutes, an actual transcript should be obtained via a stenographer. This is what other communities that c do choose to have transcripts do. Any written comments by the Council or the public would be included in full as an exhibit either attached to the minutes, agenda packets, or the meeting I records. E The League of MN Cities' City and Mayor's Handbooks outline what the minutes should entail and summarize the state statutes regarding minutes. From the LMC Handbooks: Minutes of council meetings: The clerk determines the actual wording of the minutes,unless the council 4 adopts a standard form by motion or specifically directs the clerk to change the wording. [It is of note that { any disagreements between the clerk and council on the true facts set out in the minutes may be required I to be resolved through judicial inquiry and determination.] Generally the clerk has wide discretion as to how to keep the minutes. A verbatim record of everything that was said is not normally required. However,the law does require that the following be included in the F ,. minutes: The clerk must include the following information in the minutes: [ • The members of the public body who are present (Minn. Stat. §§ 13D.01. subd. 4; 331A.01, subd 6; 15.17, subd 1.) • The members who make or second motions (Minn. Star. § 412.151, subd 1; 412.191, subd 3; 331A.01. subd 6) t • Roll-call vote on motions (Afinn. Stat. ff 331A.01, subd. 6; 412.151, subd 1; 412.191, subd 3.) � • Subject matter of proposed resolutions or ordinances. Ofinn. Stat. §§331A.01, subd 6; 412.151, subd. 1.) • Whether the resolutions or ordinances are defeated or adopted (Alien. Star. Sf 331A.01, subd 6; 412.191, subd 3) { • The votes of each councilmember, including the mayor (Alien. Slat. 3§ 13D.01, subd. 4; 331A.01, subd 6; 412,151, subd 1; 412.191, .subd 3.) In addition, Lake Elmo City Code § 31.02 states that meeting procedure should follow Robert's t Rules of Order as stated here: C §31.02 PRESIDING OFFICER. (A) Who presides. The Mayor shall preside at all meetings of the Council. In the absence of the Mayor, ' the Acting Mayor shall preside. In the absence of both, the Clerk shall call the meeting to order and shall preside until the Council Members present at the meeting choose I of their members to act temporarily as presiding officer. (B) Procedure. The presiding officer shall preserve order, enforce the rules of procedure adopted by the City Council, and determine without debate, subject to the formal decision of the Council on appeal, all ; questions of procedure and order. Except as otherwise provided by statute or by the provisions of this subchapter, the proceedings of the Council shall be conducted in accordance with the latest edition of Robert's Rules of Order. C Appeal procedure. An Council Member may appeal to the Council a ruling of the presiding officer. ( ) PP P Y Y PP g P g ;. If the appeal is seconded, the member may speak once, solely on the question involved, and the presiding --page 2-- i i City Council Meeting [Regular Agenda Item II] February 24.2015 i officer may explain the ruling, but no other Council Member shall participate in the discussion. The appeal shall be sustained if it is approved by a majority of the members present, including the presiding officer. If there is a tie vote on the appeal,the original ruling of the presiding officer shall stand. E (1997 Code, § 200.01)(Am. Ord. 97-201,passed 11-20-2007) From the Roberts's Rules official website: Question 1 S: Isn't it necessary to summarize matters discussed at a meeting in the minutes of that meeting in k order for the minutes to be complete? Answer. Not only is it not necessary to summarize matters discussed at a meeting in the minutes of that meeting, it is improper to do so. Minutes are a record of what was done at a meeting, not a record of what was said. [RONR(1 Ith ed.),p. 468, 11. 16-18; see also p. 146 of RONRIB.] Reg_ardina the minutes recording/correction in the city code. it simply states: � I §31.03 MINUTES. (A) Recording. Minutes of each Council meeting shall be kept by the Clerk or, at the direction of the Clerk, by the Deputy Clerk. In the absence of both, the presiding officer shall appoint a temporary f recording secretary. Ordinances,resolutions, and claims need not be recorded in full in the minutes if they appear in other permanent records of the Clerk and can be accurately identified from the description given in the minutes. ! (B)Approval. The minutes of each meeting shall be reduced to typewritten form, shall be signed by the Clerk, and copies shall be delivered to each Council Member as soon as practicable after the meeting. At the next regular Council meeting following the delivery, approval of the minutes shall be considered by the Council. The minutes need not be read aloud, but the presiding officer shall call for any additions or corrections. If there is no objection to a proposed addition or correction, it may be made without a vote of the Council. If there is an objection,the Council shall vote upon the addition or correction. If there are no j additions or corrections,the minutes shall stand approved. (1997 Code, § 200.01) } s RECOMMENDATION: Based on the aforementioned, the staff recommends the City Council accept the City Clerk's proposed summary format for City Council minutes. No formal action or motion is being requested at this time. If further direction is needed, staff requests that Council communicate with the Clerk and staff. Any specific issues with a particular set of submitted minutes should be addressed on an individual basis. R k i k i { --page 3 -- THE CITY OF LAKE ELMO MAYOR & COUNCIL COMMUNICATION DATE: February 24,2015 CONSENT ITEM# 12 AGENDA ITEM: Hammes Estates I"Addition Residential Subdivision—Amendment of Approved Developer's Agreement SUBMITTED BY: Nick M. Johnson, City Planner THROUGH: Dean Zuleger, City Administrator REVIEWED BY: Jack Griffin, City Engineer Dave Snyder, City Attorney Kyle Klatt, Community Development Director Cathy Bendel, Finance Director SUGGESTED ORDER OF BUSINESS (if removed from the Consent Agenda): - Introduction of Item.....................................Community Development Director - Report/Presentation..............................Community Development Director Questions from Council to Staff.............................................Mayor Facilitates - Call for Motion...............................................................Mayor& City Council Discussion.......................................................................Mayor&City Council - Action on Motion....................................................................Mayor Facilitates POLICY RECCOMENDER: Staff is recommending that the City Council approve an amendment to the approved Hammes Estates 1" Addition Development Agreement. The requested amendments would incorporate the necessary City payments for the oversizing of watermain within the development, as well as increase the number of permitted model homes from 4 to 5 at the request of the developer. FISCAL IMPACT: $50,045.00 (estimated). Upon acceptance of the public improvements for the development, the City would need to pay an estimated amount of$50,045 for the oversizing of watermain from 8-inch to 12"inch. The oversizing credit would be paid from the City's water enterprise fund. SUMMARY AND ACTION REQUESTED: The City Council is being asked to approve amendments to the approved Development Agreement for the Hammes Estates 1s1 Addition residential subdivision as part of the Consent Agenda. The requested amendments include adding the provisions for the City payment of watermain oversizing, which was not addressed in the --page 1 -- i City Council Meeting [Consent Agenda Item 12] February 24,2015 previously approved agreement. In addition, the developer is requesting to increase the number of model homes permitted from four homes to five. Should the requested action be removed from the Consent Agenda, the motion to take the recommended action on the request is as follows: "Move to adopt Resolution No. 2015-09, approving the requested amendments to the approved Development Agreement for the Hammes Estates 1s'Addition residential subdivision." LEGISLATIVE HISTORY/STAFF REPORT: The Hammes Estates l't Addition residential subdivision Final Plat was approved on October 7, 2014. In addition to the Final Plat, the Development Agreement for Hammes Estates 1't Addition was also approved on the same date. The resolutions of approval of these two actions can be found in Attachments#5 and#6. When the original Development Agreement was approved, it did not account for the necessary oversizing of watermain within the Hammes Estates residential development. Upon completion and acceptance of the public improvements, the City would be responsible to pay a credit to the landowner/developer for the installation of oversized watermain. The proposed amendments to the approved Development Agreement are directly related to the payment of the watermain oversizing credit. Oversizing of City utilities within private developments is a common practice necessary to provide adequate sewer, water or storm sewer service to a broader area. In the case of watermain, the locations of oversized pipe are based on modeling of the City's entire water system to determine where oversizing of pipe and other infrastructure upgrades are necessary to optimize the performance of the overall system. More specifically,providing adequate flow and water pressure in different areas of the City requires that certain segments be oversized to provide optimal service. In terms of the oversizing credit, a typical residential subdivision can be served by 8-inch watennain. However, in certain locations, the City's water system may require a 12- inch watermain to be installed. In this case, the oversizing credit owed to the developer would be for the increased cost of oversizing an 8-inch watermain to a 12-inch watermain. This methodology is a widely accepted practice to determine oversizing credits. In the case of Hammes Estates 1st Addition, it was determined that the cost of the oversized watermain and supporting structures/material result in an oversizing credit of$50,045.00. This estimated cost is submitted by the developer's engineer, and then reviewed by the City Engineer. The estimated oversizing cost, the review by the City Engineer, and location of the watermain oversizing is in Attachment#3. In addition,the oversizing costs are also found in Exhibit B of the proposed Development Agreement(Attachment#2). It should also be noted that the amendment to the approved Development Agreement specifies that the City will pay the actual costs of construction for the oversizing. The$50,045.00 oversizing reimbursement is an estimate at this time. Finally,please note that the developer's engineer's estimate (Attachment#3) included a slight calculation error in the oversizing cost of watermain. The correct calculation is reflected in Exhibit B of the Development Agreement. In addition to the oversizing of the watermain,the proposed amendments to the Development Agreement also increase the number of model homes allowed from 4 homes to 5 model homes. --page 2-- City Council Meeting [Consent Agenda Item 12] February 24,2015 This request has been submitted by the developer(Attachment#4). The reason for this request is that the proposed residential subdivision will include homes built by 5 different home builders. According to the developer, 4 custom builders will participate in Hammes Estates in addition to Ryland Homes. The reason they would like to increase the number of model homes to 5 is to allow each builder participating in the project to have a model home. Staff has reviewed this request and found the modest increase to be reasonable. Prior to any model homes being constructed, the developers/builders will need to submit as-built grading survey to ensure that the lots meet the approved Grading Plan. In addition, they will need to demonstrate that there is adequate access to the model homes for emergency services. Per the approved Development Agreement, the location of the model lots is subject to the approval of the Community Development Director. To document the proposed amendments to the Development Agreement, staff has redlined the previously approved version to highlight the proposed changes. In addition to the amendments related to watennain oversizing and model homes, there are some changes related to the review of the document by the City Attorney. These limited changes are a result of review by the agreement by the Attorney and the developer's representation. The developer found all the requested changes by the City Attorney to be acceptable. STRENGTHS,WEAKNESSES, OPPORTUNITIES,THREATS: Strengths: Approval of the proposed amendments to the approved Development Agreement for Hammes Estates Is' Addition clarifies the City's responsibility with regards to watermain oversizing. In addition, permitting one additional model home in the development supports the proposed plan of Hammes West, LLC to bring forward a mix of custom home builders to the project. Weaknesses: None Opportunities: With the completion of the amendments to the Development Agreement, the Agreement can be executed and the plat recorded. This would allow for the submission of the necessary City sewer and water fees (SACs and WACs). The developers are hoping to begin utility and street construction in the spring. Threats: 5 model homes as part of the development is the maximum amount that is acceptable. Constructing homes prior to the acceptance of the public improvements can have some elements of risk. However, staff is confident the risk can be mitigated by requiring as-built survey on all model lots and requiring proper access for emergency services should an accident occur while the homes are under construction. RECOMMENDATION: Based on the above Staff Report, Staff is recommending that the City Council approve amendments to the approved Development Agreement for the Hammes Estates I" Addition residential subdivision as part of the Consent Agenda. Should the requested action be removed from the Consent Agenda, the motion to take the recommended action on the request is as follows: --page 3 -- City Council Meeting [Consent Agenda Item 12] February 24,2015 "Move to adopt Resolution No. 2015-09, approving the requested amendments to the approved Development Agreementfor the Hammes Estates Is,Addition residential subdivision." ATTACHMENTS: 1. Resolution No. 2015-09 2. Hammes Estates Developer's Agreement—Final Draft w/Proposed Amendments 3. Watermain Oversizing Cost Estimates 4. Developer Request to Increase#of Model Homes 5. Resolution No. 2014-81 6. Resolution No. 2014-82 --page 4-- CITY OF LAKE ELMO WASHINGTON COUNTY STATE OF MINNESOTA RESOLUTION NO. 2015-09 A RESOLUTIONAPPROVING AMENDMENTS TO THEAPPROVED DEVELOPMENT AGREEMENT FOR HAMMES ESTATES I ST ADDITION WHEREAS, the City of Lake Elmo is a municipal corporation organized and existing under the laws of the State of Minnesota; and WHEREAS,The Ryland Group, Inc., 7599 Anagram Drive, Eden Prairie, MN ("Applicant")has previously submitted an application to the City of Lake Elmo ("City") for a Final Plat for Hammes Estates 1st Addition; and WHEREAS,The Lake Elmo City Council adopted Resolution No. 2014-81 on October 7,2014 approving the Final Plat for Hammes Estates 1st Addition; and WHEREAS,The Lake Elmo City Council adopted Resolution No. 2014-82 on October 7, 2014, approving the Development Agreement for Hammes Estates 1st Addition; and WHEREAS,the Applicant and City have agreed to amend the approved Development Agreement to include provisions related to utility oversizing and other limited amendments. NOW,THEREFORE,based on the information received,the City Council of the City of Lake Elmo does hereby approve the amended Developer's Agreement for Hammes Estates 1" Addition and authorizes the Mayor and City Clerk to execute the document. Passed and duly adopted this 241h day of February 2015 by the City Council of the City of Lake Elmo, Minnesota. Mike Pearson, Mayor ATTEST: Adam Bell, City Clerk 1 Resolution 2015-09 (reserved for recording information) DEVELOPMENT CONTRACT (Public sewer and water) Hammes Estates 1st Addition AGREEMENT dated , 2015, by and between the CITY OF LAKE ELMO a Minnesota municipal corporation ("City'), and The Ryland Group, Inc. a Maryland Corporation (the "Developer"). 1. REQUEST FOR PLAT APPROVAL. The Developer has asked the City to approve the plat for Hammes Estates 1st Addition (referred to in this this Contract as the "plat"). The land is situated in the County of Washington, State of Minnesota, and is legally described as: That part of the South Half of the Northeast Quarter of Section 34, Township 29 North, Range 21 West, Washington County, Minnesota, EXCEPT the East 60.00 feet of the North 967 feet of said South Half of the Northeast Quarter thereof. AND EXCEPT Parcel 3 of Washington County Highway Right of Way Plat 49-19B, recorded September 18, 1985 as Document Number 492530. 2. CONDITIONS OF PLAT APPROVAL. The City hereby approves the plat on condition that the Developer enter into this Contract, furnish the security required by it, and record the plat with the County Recorder or Registrar of Titles within (180)days after the City Council approves the final plat. 1 3. RIGHT TO PROCEED. Unless separate written approval has been given by the City, within the plat or land to be platted, the Developer may not grade or otherwise disturb the earth, remove trees, construct sewer lines, water lines, streets, utilities, public or private improvements, or any buildings until all the following conditions have been satisfied: 1) this agreement has been fully executed by both parties and filed with the City Clerk, 2) the necessary security has been received by the City, 3) the plat has been recorded with the Washington County Recorder's Office, and 4) the City's Community Development Director has issued a letter that all conditions have been satisfied, a preconstruction conference has been held, and that the Developer may proceed. 4. HOA DOCUMENTS. The required HOA documents shall be recorded with the Washington County Recorder's Office within thirty(30) days of the plat being recorded with the County. 5. PHASED DEVELOPMENT. This plat is a phase of a multi-phased preliminary plat, the City may refuse to approve final plats of subsequent phases if the Developer has breached this Contract and the breach has not been remedied. Development of subsequent phases may not proceed until Development Contracts for such phases are approved by the City. Park charges and area charges for sewer and water referred to in this Contract are not being imposed on outlots, if any, in the plat that are designated in an approved preliminary plat for future subdivision into lots and blocks. Such charges will be calculated and imposed when the outlots are final platted into lots and blocks. 6. PRELIMINARY PLAT STATUS. The plat is a phase of a multi-phased preliminary plat, the preliminary plat approval for all phases not final platted shall lapse and be void unless final platted into lots and blocks, not outlots, within five (5) years after preliminary plat approval. 7. CHANGES IN OFFICIAL CONTROLS. For two (2) years from the date of this Contract, no amendments to the City's Comprehensive Plan or official controls shall apply to or affect the residential use, development density, lot size, lot layout or dedications of the approved final plat unless required by state or federal law or agreed to in writing by the City and the Developer. Thereafter, notwithstanding anything in this Contract to the contrary, to the full extent permitted by state law, the City may require compliance with any amendments to the City's Comprehensive Plan, official controls, platting or dedication 2 requirements enacted after the date of this Contract. 8. DEVELOPMENT PLANS. The plat shall be developed in accordance with the following plans and at the Developer's sole expense. The plans shall not be attached to this Contract. If the plans vary from the written terms of this Contract, the written terms shall control. The plans are: Plan A— Final Plat Plan B — Final Grading, Drainage, and Erosion Control Plans Plan C— Final Sanitary Sewer, Water Main, Storm Sewer, and Street Plans Plan D — Final Landscape Plan 9. IMPROVEMENTS. The Developer shall install and pay for the following: A. Streets B. Sanitary Sewer C. Watermain D. Surface Water Facilities (pipe, ponds, rain gardens, etc.) E. Grading and Erosion Control F. Sidewalks/Trails G. Street Lighting H. Underground Utilities I. Street Signs and Traffic Control Signs J. Landscaping and Street Trees K. Tree Preservation and Reforestation L. Wetland Mitigation and Buffers M. Monuments Required by Minnesota Statutes The improvements shall be installed in accordance with the City subdivision ordinance and the City's Engineering Design and Construction Standards Manual and pursuant to the direction of the City Engineer. The Developer shall submit plans and specifications which have been prepared by a competent registered professional engineer to the City for approval by the City Engineer. The Developer shall instruct its engineer to provide adequate field inspection personnel to assure an acceptable level of quality control to the extent that the Developer's engineer will be able to certify that the construction work meets the approved City standards as a condition of City acceptance. In addition, the City may, at the City's discretion and at the Developer's expense, have one or more City inspectors and a soil engineer inspect the work on 3 a full or part-time basis. The Developer's engineer shall provide for on-site project management. The Developer's engineer is responsible for design changes and contract administration between the Developer and the Developer's contractor. The Developer or his engineer shall schedule a pre-construction meeting at a mutually agreeable time at the City Hall with all parties concerned, including the City staff, to review the program for the construction work. All labor and work shall be done and performed in the best and most workmanlike manner and in strict conformance with the approved plans and specifications. No deviations from the approved plans and specifications will be permitted unless approved in writing by the City Engineer. The Developer agrees to furnish to the City a list of contractors being considered for retention by the Developer for the performance of the work required by the Contract. The Developer shall not do any work or furnish any materials not covered by the plans and specifications and special conditions of this Contract, for which reimbursement is expected from the City, unless such work is first ordered in writing by the City Engineer as provided in the specifications. 10. CITY ENGINEERING ADMINISTRATION AND CONSTRUCTION OBSERVATION. Prior to the commencement of any construction activity authorized under this agreement, the Developer shall submit an escrow for City Engineering Administration and Construction Observation in an amount provided under paragraph 36. Summary of Cash Requirements. Thereafter, the Developer shall reimburse the City each month, within 30 days of receiving an invoice, for all engineering administration and construction observation performed during the construction of the plat at normal City rates for such Services. If the Developer fails to pay the invoiced amount within such 30-day period, and such failure continues for an additional five (5) business days after written notice from the City of such failure, the City may draw upon the escrow and stop the work on site until said escrow has been replenished in its full amount. City engineering administration will include monitoring of construction progress and construction observation, consultation with Developer and his engineer on status or problems regarding the project, coordination for testing, final inspection and acceptance, project monitoring during the warranty period, and processing of requests for reduction in security. Construction observation may be performed by the City's in-house staff or consulting engineer. Construction observation shall include, at the discretion 4 of the city, part or full time inspection of proposed public utilities and street construction. Services will be billed on an hourly basis at normal City rates therefore. The direction and review provided through the inspection of the improvements should not be considered a substitute for the Developer required management of the development. Developer will cause the contractor(s) to furnish the City with a schedule of proposed operations at least five (5) days prior to the commencement of construction of each type of Improvement. City shall inspect all Developer Installed Improvements during and after construction for compliance with approved plans and specifications. Developer will notify the City Engineer at such times during construction as the City Engineer requires for inspection purposes. Such inspection is pursuant to the City's governmental authority, and no agency orjoint venture relationship between the City and Developer is thereby created. 11. CONTRACTORS/SUBCONTRACTORS. City Council members, City employees, and City Planning Commission members, and corporations, partnerships, and other entities in which such individuals have greater than a 25% ownership interest or in which they are an officer or director may not act as contractors or subcontractors for the public improvements identified in Paragraph 8 above. 12. PERMITS. The Developer shall obtain or require its contractors and subcontractors to obtain all necessary permits, including but not limited to: A. Right-of-Way Excavations and Obstructions: • City of Lake Elmo, Right-of-Way Utility Installation(s) • City of Lake Elmo, Right-of-Way Obstruction(s) • Washington County, Utility Installations(s) • Washington County, Street or Driveway Access(s) • Minnesota Department of Transportation, Utility Installation • Minnesota Department of Transportation, Right-of-Way Permit B. Watermain Extensions: • Minnesota Department of Health C. Sanitary Sewer Extensions: • Minnesota Pollution Control Agency • Metropolitan Council Environmental Services D. Stormwater Management: • Valley Branch Watershed District Permit E. Erosion, Sedimentation Control: • Minnesota Pollution Control Agency, General NPDES Stormwater Permit 5 • SW PPP (Stormwater Pollution Prevention Plan) F. Wetland Mitigation: • Board of Water and Soil Resources,W CA G. Construction Dewatering: • Minnesota Department of Natural Resources 13. TIME OF PERFORMANCE. The Developer shall install all required public improvements by October 31, 2015, with the exception of the final wear course of asphalt on streets. The Developer shall have the option of installing the wearing course of streets within one (1) year following initial commencement of work on the required basic improvements or installing it after the first course has weathered a winter season, consistent with warranty requirements, however final acceptance of the improvements will not be granted until all work is completed including the final wear course. The Developer may, however, request an extension of time from the City. If an extension is granted, it shall be conditioned upon updating the security posted by the Developer to reflect cost increases and amending this agreement to reflect the extended completion date. Final wear course placement outside of this time frame must have the written approval of the City Engineer. 14. LICENSE. The Developer hereby grants the City, its agents, employees, officers and contractors a license to enter the plat to perform all work and inspections deemed appropriate by the City in conjunction with plat development. 15. CONSTRUCTION ACCESS. Construction traffic access and egress for grading, public utility construction, and street construction is restricted to access the subdivision via the planned construction access off of Keats Avenue. No construction traffic is permitted on other adjacent local streets. 16. CONSTRUCTION SEQUENCE AND COMPLIANCE. The City will require the Developer to construct the improvements in a sequence which will allow progress and compliance points to be measured and evaluated. The Developer and/or their representatives are required to supervise and coordinate all construction activities for all improvements and must notify the City in writing stating 6 when the work is ready for the inspection at each of the measurable points defined in the following paragraphs 16., 17. and 18. For the purpose of this paragraph, Electronic message (email) shall be deemed an acceptable method of notification provided it is captioned "Notice pursuant to Development Agreement". 17. EROSION CONTROL. Prior to initiating site grading, the erosion control plan, Plan B, shall be implemented by the Developer and inspected and approved by the City. Erosion control practices must comply with the approved plans and specifications for the plat, with all watershed district permits and with Minnesota Pollution Control Agency's Best Management Practices. The City may impose additional erosion control requirements as deemed necessary. The parties recognize that time is of the essence in controlling erosion. If the Developer does not comply with the erosion control plan and schedule or supplementary instructions received from the City, the City may take such action as it deems appropriate to control erosion. The City will endeavor to notify the Developer in advance of any proposed action, but failure of the City to do so will not affect the Developer's and City's rights or obligations hereunder. If the Developer does not reimburse the City for any cost the City incurred for such work within ten (10) days, the City may draw down the security to pay any costs. No development, utility or street construction will be allowed and no building permits will be issued unless the plat is in full compliance with the approved erosion control plan. If building permits are issued prior to the acceptance of public improvements, the Developer assumes all responsibility for erosion control compliance throughout the plat and the City may take such action as allowed by this agreement against the Developer for any noncompliant issue as stated above. Erosion control plans for individual lots will be required in accordance with the City's building permit requirements, or as required by the City or City Engineer. 18. GRADING PLAN. The plat shall be graded in accordance with the approved grading drainage and erosion control plan, Plan "B". The plan shall conform to Engineering Design and Construction Standards Manual. All grading shall be completed within the Subdivision prior to the preparation and submittal of the as-constructed grading plan. 7 Within thirty (30) days after completion of the grading, the Developer shall provide the City with a "record" grading plan certified by a registered land surveyor or engineer that all trails, ponds, swales, and ditches have been constructed on public easements or land owned by the City. The "record" plan shall contain site grades and field verified elevations of the following: a) cross sections of ponds; b) location and elevations along all swales, emergency overflows, wetlands, wetland mitigation areas if any, ditches, locations and dimensions of borrow areas/stockpiles; c) lot corner elevations and house pads; and d) top and bottom of retaining walls. The City will not issue any building permits until the approved certified record grading plan is on file with the City. 19. STREET AND UTILITY IMPROVEMENTS. All storm sewers, sanitary sewers, watermain, and streets shall be installed in accordance with the approved Plans and Specifications for Public Improvements, Plan "C". The plan shall conform to the City's Engineering Design and Construction Standards Manual. Curb and gutter and the first lift of the bituminous streets, sidewalks, the boulevards graded, street signs installed, and all restoration work on the site shall be completed in accordance with the approved plans. Once the work is completed, the Developer or its representative shall submit a written request to the City asking for an inspection of the initial improvements. The City will then schedule a walk- through to create a punch list of outstanding items to be completed. Upon receipt of the written punch list provided by the City, the punch list items must be completed by the Developer and the City notified to re- inspect the improvements. The final bituminous wear course may be installed in accordance with paragraph 12. above. 20. STREET MAINTENANCE DURING CONSTRUCTION. The Developer shall be responsible for all street maintenance until the streets are accepted by the City in writing. Warning signs shall be placed when hazards develop in streets to prevent the public from traveling on same and to direct attention to detours. If and when streets become impassable, such streets shall be barricaded and closed. In the event residences are occupied prior to completing streets, the Developer shall maintain a smooth surface and provide proper surface drainage to insure that the streets are passable to traffic and emergency vehicles. The Developer shall be responsible for keeping streets within and without the 8 subdivision clean of dirt and debris that may spill, track, or wash onto the street from Developer's operation. The Developer may request, in writing, that the City keep the streets open during the winter months by plowing snow from the streets prior to final acceptance of said streets. The City shall not be responsible for repairing the streets because of snow plowing operations. Providing snow plowing service does not constitute final acceptance of the streets by the City. The Developer shall contract for street cleaning within and immediately adjacent to the development. At a minimum, scraping and sweeping shall take place on a weekly basis. A copy of this contract shall be approved by the City before grading is started. The contract shall provide that the City may direct the contractor to clean the streets and the contractor will bill the Developer. 21. OWNERSHIP OF IMPROVEMENTS. Upon completion of the work and construction required by this Contract, the improvements lying within public easements shall become City property. Prior to acceptance of the improvements by the City, the Developer must furnish the City with a complete set of reproducible "record" plans, an electronic file of the "record" plans in accordance with the City's Engineering Design and Construction Standards Manual together with the following affidavits: - Developer/Developer Engineer's Certificate - Land Surveyor's Certificate certifying that all construction has been completed in accordance with the terms of this Contract. All necessary forms will be furnished by the City. Upon receipt of "record plans" and affidavits, and upon review and verification by the City Engineer, the City Engineer will accept the completed public improvements. 22. PARK DEDICATION. The Developer shall pay a cash contribution of $107,554 in satisfaction of the City's park dedication requirements. This charge is based on the park dedication requirement for all the areas to be platted within the Hammes Estates Preliminary Plat. No additional fees in lieu of land dedication will be charged for future developments within the preliminary plat area. The charge was calculated as follows: 2.1 acres (5.7 acres of park land provided subtracted from 7.8 acres of park land required) at $51,216 per acre per the submitted appraisal for the property. The Developer shall 9 receive a credit from the cash amount due for the actual costs of the North East Park Plan Improvements depicted in the Final Landscape Plans Dated September 22, 2014. These improvement shall include: 16- feet by 24-feet shelter, picnic table, bike rack, grill station, retaining wall, fishing pier, canoe rack, concrete hardsurface, woodland seed mix restoration, landscaping, and parking lot improvements. The Developer shall deposit $107,554 with the City at time of final plat to be held by the City in escrow until such time as park improvements have been installed. Upon installation of park improvements, the City shall release the credited amount to the Developer. 23. SANITARY SEWER AND WATER UTILITY AVAILABILITY CHARGES (SAC AND WAC). The Developer shall be responsible for the payment of all sewer availability charges (SAC) and all water availability charges (WAC) with respect to the Improvements required by the City and any state or metropolitan government agency. The sewer availability charge (SAC) in the amount of $3,000.00 per REU shall be paid by the Developer prior to the City recording the final plat. The total amount to be paid by the Developer is $171,000.00. The water availability charge (WAC) in the amount of $3,000.00 per REU shall be paid by the Developer prior to the City recording the final plat. The total amount to be paid by the Developer is $171,000.00. In addition, a sewer connection charge in the current amount of $1,000.00 per REU, a Met Council sewer availability charge in the current amount of $2,435.00 per REU, and a water connection charge in the current amount of $1,000.00 per REU will be collected by the City at the time the building permit is issued for each lot. These amounts are charged at the time of building permit in accordance with the latest city fee schedule. 24. TRAFFIC CONTROL SIGNS. Traffic control signs shall be included as part of the public street improvements, and the installation costs shall be included in the street construction calculations. 25. STREET LIGHTS. The Developer is responsible for the installation of street lights 10 consistent with a street lighting plan approved by the City. The Developer shall coordinate the installation of street lights with Xcel Energy in conjunction with the other improvements, and agrees to pay Xcel Energy for all upfront costs associated with the street lighting system, including underground cables, posts, lamps, ballasts, starters, photocells, and glassware. All street lights will be leased by the City upon final acceptance of the system. The Developer shall also pay $499.68 in payment for the first year operating costs for street lights. 26. WETLAND MITIGATION. The Developer shall complete wetland mitigation/restoration in accordance with the approved Plans and Specifications and in accordance with any applicable Watershed or agency Permits. If the mitigation work is found to be incomplete or restoration is unsuccessful the City may draw down the security at any time during the warranty period if the Developer fails to take corrective measures to be used by the City to perform the work. Prior to the acceptance of the public improvements for the Hammes Estates plat, all wetland buffers shall be delineated and identified via staking and signage that is acceptable to the City. 27. BUILDING PERMITS/CERTIFICATES OF OCCUPANCY. A. Public sewer and water, curbing, and one lift of asphalt shall be installed on all public and private streets prior to issuance of any building permits, except fivefew model homes on lots acceptable to the Community Development Director. B. Prior to issuance of building permits, wetland buffer monuments shall be placed in accordance with the City's zoning ordinance. The monument design shall be approved by the Community Development Department. C. Written certification of the as-constructed grading must be on file at the City for the block where the building is to be located. D. Breach of the terms of this Contract by the Developer, including nonpayment of billings from the City, shall be grounds for denial of building permits and/or withholding of other permits, inspection or actions, including lots sold to third parties, and the halting of all work in the plat. E. If building permits are issued prior to the acceptance of public improvements, the 11 Developer assumes all liability and costs resulting in delays in completion of public improvements and damage to public improvements caused by the City, Developer, their contractors, subcontractors, materialmen, employees, agents, or third parties. F. No sewer and water connection permits may be issued until the streets needed for access have been paved with a bituminous surface and the utilities are tested and approved by the City Engineer. G. The City will not issue a certificate of occupancy for any building constructed on any lot or parcel in the Plat, including any model homes authorized under this agreement, until Public sewer and water, curbing, and one lift of asphalt is installed on all public and private streets; all utilities are tested and approved by the City Engineer; and the as- constructed grading must be on file at the City for the block where the building is to be located. 28. RESPONSIBILITY FOR COSTS. A. In the event that the City receives claims from labor, materialmen, or others that work required by this Contract has been performed, the sums due them have not been paid, and the laborers, materialmen, or others are seeking payment from the City, and in the future event that such claims have not been resolved by the Developer within thirty (30) days after written notice from the City, the Developer hereby authorizes the City to commence an Interpleader action pursuant to Rule 22, Minnesota Rules of Civil Procedure for the District Courts, to draw upon the letters of credit in an amount up to 125 percent of the claim(s) and deposit the funds in compliance with the Rule, and upon such deposit, the Developer shall release, discharge, and dismiss the City from any further proceedings as it pertains to the letters of credit deposited with the District Court, except that the Court shall retain jurisdiction to determine payment of attorneys'fees pursuant to this Contract. B. Except as otherwise specified herein, the Developer shall pay all costs incurred by it or the City in conjunction with the development of the plat, including but not limited to legal, planning, engineering and inspection expenses incurred in connection with approval and acceptance of the plat, the preparation of this Contract, review of construction plans and documents, and all costs and expenses 12 incurred by the City in monitoring and inspecting development of the plat. All amounts incurred and due at the time, must be fully paid prior to execution and release of the final plat for recording. C. The Developer shall hold the City and its officers, employees, and agents harmless from claims made by itself and third parties for damages sustained or costs incurred resulting from plat approval and development. The Developer shall indemnify the City and its officers, employees, and agents for all costs, damages, or expenses which the City may pay or incur in consequence of such claims, including attorneys'fees. D. The Developer shall reimburse the City for costs incurred in the enforcement of this Contract, including reasonable engineering and attorneys'fees. E. The Developer shall pay in full all bills submitted to it by the City for obligations incurred under this Contract within thirty (30) days after receipt. Bills not paid within thirty (30) days shall be assessed a late fee per the City of Lake Elmo adopted Fee Schedule. Upon request, the City will provide copies of detailed invoices of the work performed. 29. City Payments. In the event city payments are required by Section 29.A below, within thirty (30) days of the City's final acceptance of the Improvements, pursuant to Section 21 of this Agreement, but only if the Developer is not in default under this Agreement, the City shall pay to the Developer the sums set forth in the attachment to this Agreement as Exhibit B. The actual amount of the reimbursement shall be based on actual construction costs which will be verified by the Developer to the City in the Plans submitted to the City as required in Section 21. This payment by the City shall be the City's only responsibility with regard to construction of the Improvements and in no case shall act as a waiver of any other right of the City under this Agreement or under applicable laws, ordinances, or rules. A. City payments pursuant to this Agreement shall be: $50,045.00 30. SPECIAL PROVISIONS. The following special provisions shall apply to plat development: A. Implementation of the recommendations listed in the September 18, 2014 Engineering memorandum is required along with all conditions of approval listed in any City Council resolution approving the plat. 13 B. Within thirty(30)days of the plat being recorded at the County, the Developer shall convey Outlot A and C to the City by warranty deed, free and clear of any and all encumbrances. C. The Developer shall install a temporary turnaround at the southern end of June Avenue North until it is extended as part of future phases of the Hammes Estates development. D. The Developer must obtain a sign permit from the City Building Official prior to installation of any permanent subdivision identification signs. F. The Developer shall provide for a minimum green belt/buffer of 100 feet around all of the adjacent Stonegate subdivision. This buffer shall be secured by a covenant running in favor of the City_ and a title commitment issued therefore. G. All trails shall be located within the easements and dedicated to the City of Lake Elmo. Title commitments from a regional title company shall be provided for all land so dedicated. H. The Developer shall be responsible for the construction of all improvements within the Keats Avenue (CSAH 19) right-of-way as required by Washington County and further described in the review letter received from the County dated May 6, 2014. The required improvements shall include, but not be limited to: modifications to the median crossing in this area, continuation of a bituminous trail through the median, turn lanes, and other improvements as required by the County. I. The Developer shall observe all other County requirements as specified in the Washington County review letter dated May 6, 2014. J. The Developer shall enter into a maintenance agreement with and satisfactory to the City that clarifies the individuals or entities responsible for any landscaping installed in areas outside of land dedicated as public park and open space on the final plat. K. Any land under which public trails are located will be accepted as park land provided the Developer constructs said trails within the dedicated areas as part of the public improvements for the subdivision and easements are provided where required by the City. L. No more than one hundred units depicted on the preliminary plat (100) may be 14 approved as part of a final plat until a second access is provided to the subdivision via a connection through the property to the south of the Hammes Estates. M. The Developer shall be responsible to monitor the restored southern shoreline of Goose Lake for invasive species for a period of 5 years as specified in the MN DNR Public Waters Work Permit. N. The Developer shall submit all documentation of remediation activities related to a recorded soil contamination on the site to the Minnesota Pollution Control Agency for review and approval. The Developer shall submit the acknowledgment of approval from the Minnesota Pollution Control Agency to the City prior to the issuance of building permits for all lots in the recorded plat affected by the soil contamination event. The Developer must submit the acknowledgement of successful remediation from the MPCA prior to the City's consideration of subsequent phases of the Hammes Estates development. 31. MISCELLANEOUS. A. The Developer may not assign this Contract without the written permission of the City Council. The Developer's obligation hereunder shall continue in full force and effect even if the Developer sells one or more lots, the entire plat, or any part of it. B. Retaining walls that require a building permit shall be constructed in accordance with plans and specifications prepared by a structural or geotechnical engineer licensed by the State of Minnesota. Following construction, a certification signed by the design engineer shall be filed with the City Engineer evidencing that the retaining wall was constructed in accordance with the approved plans and specifications. All retaining walls identified on the development plans or by special conditions referred to in this Contract shall be constructed before any other building permit is issued for a lot on which a retaining wall is required to be built. C. Appropriate legal documents FGgaFd;-,-,—including Homeowner Association documents, covenants and restrictions relating to the plat approval and outlots and conveyances, as approved by the City Attorney, shall be filed within thirty (30) days of the recording of the plat. No third- party beneficiary status is hereby conferred. All outlots and common areas, including Outlots-Q-a D, shall be maintained in good order and repair by a homeowner's association, and, if it does not do so,then the City may perform the work and assess the costs against the individual lots within the plat of Hammes Estates and without regard to the formalities or requirements of Minn. Stat. §429. D. Developer shall take out and maintain or cause to be taken out and maintained until six (6) months after the City has accepted the public improvements, public liability and property damage insurance covering personal injury, including death, and claims for property damage which may arise out of Developer's work or the work of its subcontractors or by one directly or indirectly employed by any of them. Limits for bodily injury and death shall be not less than $500,000 for one person and $1,000,000 for each occurrence; limits for property damage shall be not less than $200,000 for each occurrence; or a combination single limit policy of $1,000,000 or more. The City shall be named as an additional insured on the policy, and the Developer shall file with the City a certificate evidencing coverage prior to the City signing the plat.The certificate shall provide that the City must be given thirty(30)days advance written notice of the cancellation of the insurance. E. Third parties shall have no recourse against the City under this Contract. F. If any portion, section, subsection, sentence, clause, paragraph, or phrase of this Contract is for any reason held invalid, such decision shall not affect the validity of the remaining portion of this Contract. G. The action or inaction of the City shall not constitute a waiver or amendment to the provisions of this Contract. To be binding, amendments or waivers shall be in writing, signed by the parties and approved by written resolution of the City Council. The City's failure to promptly take legal action to enforce this Contract shall not be a waiver or release. H. This Contract shall run with the land and may be recorded against the title to the property. The Developer covenants with the City, its successors and assigns, that the Developer has fee title to the property being final platted and/or has obtained consents to this Contract, in the form attached hereto, from all parties who have an interest in the property; that there are no unrecorded interests in the property being final platted; and that the Developer will indemnify and hold the City harmless for any breach of the foregoing covenants. I. Each right, power or remedy herein conferred upon the City is cumulative and in 16 addition to every other right, power or remedy, express or implied, now or hereafter arising, available to City, at law or in equity, or under any other agreement, and each and every right, power and remedy herein set forth or otherwise so existing may be exercised from time to time as often and in such order as may be deemed expedient by the City and shall not be a waiver of the right to exercise at any time thereafter any other right, power or remedy. J. The Developer represents to the City that the plat complies with all city, county, metropolitan, state, and federal laws and regulations, including but not limited to: subdivision ordinances, zoning ordinances, and environmental regulations. If the City determines that the plat does not comply, the City may, at its option, refuse to allow construction or development work in the plat until the Developer does comply. Upon the City's demand, the Developer shall cease work until there is compliance. 32. EVENTS OF DEFAULT. The following shall be "Events of Default" under this Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement, any one or more of the following events: A. Subject to unavoidable delays, failure by Developers to commence and complete construction of the Public Improvements pursuant to the terms, conditions and limitations of this Agreement and the continuance of such failure for a period of thirty(30)days after written notice thereof(provided, however, that in the event of a bona fide emergency, the City shall only be required to give such notice as is practicable under the circumstances). B. Failure by Developers to substantially observe or perform any material covenant, condition, obligation or agreement on their part to be observed or performed under this Agreement and the continuance of such failure for a period of thirty (30) days after written notice thereof(provided, however, that in the event of a bona fide emergency, the City shall only be required to give such notice as is practicable under the circumstances). 33. REMEDIES ON DEFAULT. Whenever any Event of Default occurs, the City, subject to any rights of third parties agreed to by the City pursuant to this Agreement, or otherwise by written, executed instrument of the City, may take any one or more of the following: A. The City may suspend its performance under the Agreement until it receives assurances from Developers, deemed adequate by the City, that Developers will cure their default and continue their performance under the Agreement. Suspension of performance includes the right of the City to withhold permits including, but not limited to, building permits. B. The City may initiate such action, including legal or administrative action, as is necessary for the City to secure performance of any provision of this agreement or recover any amounts due under this Agreement from Developers, or immediately draw on the Letter of Credit, as set forth in this Agreement. In the event of any uncorrected failure to maintain any common area or landscape areas, the City may undertake to do the work and assess the costs to the individual lots within the plat without regard to the formalities or requirements of Minn. Stat. §429.. 18 34. ENFORCEMENT BY CITY; DAMAGES. The Developer acknowledges the right of the City to enforce the terms of this Agreement against the Developer, by action for specific performance or damages, or both, or by any other legally authorized means. The Developer also acknowledges that its failure to perform any or all of its obligations under this Agreement may result in substantial damages to the City; that in the event of default by the Developer,the City may commence legal action to recover all damages, losses and expenses sustained by the City; and that such expenses may include, but are not limited to, the reasonable fees of legal counsel employed with respect to the enforcement of this Agreement. 35. WARRANTY. The Developer warrants all improvements required to be constructed by it pursuant to this Contract against poor material and faulty workmanship. The Developer shall submit either cash or a letter of credit for twenty-five percent (25%)of the amount of the original cost of the improvements. A. The required warranty period for materials and workmanship for the utility contractor installing public sewer and water mains shall be two (2) years from the date of final written City acceptance of the work. B. The required warranty period for all work relating to street construction, including concrete curb and gutter, sidewalks and trails, materials and equipment shall be subjeGt ts one (1) year from the date of final written acceptance, unless the wearing course is placed during the same construction season as the bituminous base course. In those instances, the Developer shall guarantee all work, including street construction, concrete curb and gutter, sidewalks and trails, material and equipment for a period of two (2)years from the date of final written City acceptance of the work. C. The required warranty period for sod, trees, and landscaping is two growing seasons following installation. D. The required warranty for landscaping within storm water infiltration areas (Outlot A) shall be three (3) years following installation. The Developer shall also enter into a funded maintenance agreement with the City for a period of three (3) years prior to acceptance of the landscaping for within these storm water infiltration areas. Said maintenance agreement shall include requirements for the proper care of native plantings and the elimination of weeds and invasive species. 19 36. SUMMARY OF SECURITY REQUIREMENTS. To guarantee compliance with the terms of this agreement, payment of special assessments, payment of the costs of all public improvements, and construction of all public improvements, the Developer shall furnish the City with an irrevocable letter of credit, in the form attached hereto, from a bank, cash escrow or a combination cash escrow and Letter of Credit ("security")for$2,880,829.56. The amount of the security was calculated as follows: CONSTRUCTION COSTS: Streets $489,243.50 Sanitary Sewer $569,227.75 Watermain $359,915.00 Surface Water Facilities (pipe, ponds, rain gardens, $479,785.50 etc.) Grading $25,000.00 Erosion Control $25,801.90 Sidewalks/Trails $117,684.00 Street Lighting Xcel to Install, to be pre-paid directly by Developer Street Signs and Traffic Control Signs $3,550.00 Landscaping $222,656.00 Tree Preservation and Restoration $3,600.00 Wetland Mitigation and Buffers Separate letter of credit through Watershed District Monuments $5,700.00 Miscellaneous Facilities N/A Developer's Record Drawings $2,500.00 Construction Sub-Total $2,304,663.65 Total Project Securities (at 125% Construction $2,880,829.56 Costs) 20 This breakdown is for historical reference; it is not a restriction on the use of the security. The bank shall be subject to the approval of the City Administrator. The City may draw down the security, without notice, for any violation of the terms of this Contract or if the security is allowed to lapse prior to the end of the required term. If the required public improvements are not completed at least thirty (30) days prior to the expiration of the security, the City may also draw it down. If the security is drawn down, the proceeds shall be used to cure the default. 37. REDUCTION OF SECURITY. Upon written request by the Developer and upon receipt of proof satisfactory to the City Engineer that work has been completed and financial obligations to the City have been satisfied, with City Engineer approval the security may be reduced as follows: A. Up to 50%, or $1,440,414.78 of the security provided in accordance with paragraph 32. above may be released when: (1) Developer's obligations under this Agreement have been completed and the Public Improvements have been found to be complete to the satisfaction of the City including all corrective work for any identified punch list items, but not including the final wear course; and (2) completion of the Improvements is done to the satisfaction of the City and evidence of such is provided by the City in writing and satisfactory evidence of payment, such as lien waivers are provided. B. Up to an additional 25%, or $720,207.39 of the security provided in accordance with paragraph 32. above may be released when: (1) Developer's obligations under this Agreement have been completed and the Improvements have been found to be complete to the satisfaction of the City including all corrective work for any identified punch list items and including the final wear course; and (2) Improvements are accepted by the City in writing and satisfactory evidence of payment, such as lien waivers, are provided. C. Twenty percent (25%) of the amounts certified by the Developer's engineer shall be retained as security until: (1) all improvements have been completed, (2) iron monuments for lot corners have been installed, (3) all financial obligations to the City satisfied, (4) the required "record" plans have been received and approved by the City, (5) a warranty security is provided, and (6) the public improvements are accepted by the City. 38. SUMMARY OF CASH REQUIREMENTS. The following is a summary of the cash 21 requirements under this Contract which must be furnished to the City at the time of final plat approval: Sewer Availability Charge (SAC) $171,000.00 Water Availability Charge (WAC) $171,000.00 Park Dedication $107,554.00 Street Light Operating Fee $499.68 City Base Map Upgrading $1,425.00 City Engineering Administration $50,000.00(Based on two months of Escrow administration/observation) Total Cash Requirements $501,478.68 39. NOTICES. Required notices to the Developer shall be in writing, and shall be either hand delivered to the Developer, its employees or agents, or mailed to the Developer by certified mail at the following address: 36 Moonlight Bay, Stillwater, MN 55082. Notices to the City shall be in writing and shall be either hand delivered to the City Administrator, or mailed to the City by certified mail in care of the City Administrator at the following address: Lake Elmo City Hall, 3800 Laverne Avenue N. Lake Elmo, Minnesota 55042. 40. EVIDENCE OF TITLE. Developer shall furnish the City with evidence of its fee ownership of the property being platted by way of an attorney's title opinion or title insurance policy dated not earlier than thirty(30) days prior to the execution of the plat. CITY OF LAKE ELMO BY: Mayor (SEAL) AND City Clerk 22 DEVELOPER: THE RYLAND GROUP, INC. BY: Its STATE OF MINNESOTA ) ( ss. COUNTY OF WASHINGTON ) The foregoing instrument was acknowledged before me this day of 2 , by and by the Mayor and City Clerk of the City of Lake Elmo, a Minnesota municipal corporation, on behalf of the corporation and pursuant to the authority granted by its City Council. NOTARY PUBLIC STATE OF MINNESOTA ) ( ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2015, by The Ryland Group, Inc., a Maryland corporation, for and on behalf of the corporation. NOTARY PUBLIC DRAFTED BY: City of Lake Elmo 3800 Laverne Avenue North Lake Elmo, MN 55042 (651)747-3901 23 FEE OWNER CONSENT TO DEVELOPMENT CONTRACT , fee owners of all or part of the subject property, the development of which is governed by the foregoing Development Contract, affirm and consent to the provisions thereof and agree to be bound by the provisions as the same may apply to that portion of the subject property owned by them. Dated this day of 2 STATE OF MINNESOTA ) ( ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2 , by NOTARY PUBLIC DRAFTED BY: City of Lake Elmo 3800 Laverne Avenue North Lake Elmo, MN 55042 (651)747-3901 24 MORTGAGE CONSENT TO DEVELOPMENT CONTRACT , which holds a mortgage on the subject property, the development of which is governed by the foregoing Development Contract, agrees that the Development Contract shall remain in full force and effect even if it forecloses on its mortgage. Dated this day of 2 STATE OF MINNESOTA ) ( ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2 , by NOTARY PUBLIC DRAFTED BY: City of Lake Elmo 3800 Laverne Avenue North Lake Elmo, MN 55042 (651)747-3901 25 EXHIBIT "A' TO DEVELOPMENT CONTRACT Legal Description of Property Being Final Platted as Hammes Estates 1st Addition That part of the South Half of the Northeast Quarter of Section 34, Township 29 North, Range 21 West, Washington County, Minnesota, EXCEPT the East 60.00 feet of the North 967 feet of said South Half of the Northeast Quarter thereof. AND EXCEPT Parcel 3 of Washington County Highway Right of Way Plat 49-1913, recorded September 18, 1985 as Document Number 492530. 26 EXHIBIT "B" TO DEVELOPMENT CONTRACT City Oversizing Payment Calculation Cost Cost Increase Contract Item unit (8"to 12"WM) uantit Amount Watermain LF 12.50 3,104 $38,800.00 Gate Valves EA 1 225.00 4 4 900.00 Plugs EA 345.00 2 $690.00 Fittings Lbs 5.00 1,131 5 655.00 Total Oversizing Estimate 50 045.00 27 IRREVOCABLE LETTER OF CREDIT No. Date: TO: City of Lake Elmo Dear Sir or Madam: We hereby issue,for the account of (Name of Developer) and in your favor,our Irrevocable Letter of Credit in the amount of$ available to you by your draft drawn on sight on the undersigned bank at its offices in Minnesota. The draft m ust: a) Bear the clause, "Drawn under Letter of Credit No. dated 2 , of (Name of Bank) "• b) Be signed by the Mayor or City Administrator of the City of Lake Elmo. c) Be presented for payment at (Address of Bank) on or before 4:00 p.m. on November 30, 2 This Letter of Credit shall automatically renew for successive one-year terms unless, at least forty-five (45) days prior to the next annual renewal date (which shall be November 30 of each year), the Bank delivers written notice to the Lake Elmo City Administrator that it intends to modify the terms of, or cancel,this Letter of Credit. Written notice is effective if sent by certified mail, postage prepaid, and deposited in the U.S. Mail, at least forty-five(45) days prior to the next annual renewal date addressed as follows: City Administrator, City Hall, 3800 Laverne Ave. N. Lake Elmo Minnesota 55042 and is actually received by the City Administrator at least thirty(30) days prior to the renewal date. This Letter of Credit sets forth in full our understanding which shall not in any way be modified, amended, amplified,or limited by reference to any document,instrument,or agreement,whether or not referred to herein. This Letter of Credit is not assignable. This is not a Notation Letter of Credit. More than one draw may be made under this Letter of Credit. This Letter of Credit shall be governed by the most recent revision of the Uniform Customs and Practice for Documentary Credits,International Chamber of Commerce Publication No.500. We hereby agree that a draft drawn under and in compliance with this Letter of Credit shall be duly honored upon presentation. BY: Its 28 MEMORANDUM FOCUSENGINEERING, inc. Cara Geheren,P.E. 651.300.4261 Jack Griffin,P.E. 651.300.4264 Ryan Stempski,P.E. 651.300.4267 Date: February 18, 2015 Chad Isakson,P.E. 651.300.4283 To: Nick Johnson, City Planner Re: Hammes Estates—Watermain Oversize Costs From: Jack Griffin, P.E.,City Engineer The City has requested that the standard 8-inch diameter watermain be oversized to a 12-inch trunk watermain within a portion of the Hammes subdivision as depicted on the attached exhibit. The Hammes Estates preliminary plans have included the trunk watermain accordingly. Engineering received the attached watermain oversize cost determination as prepared by Westwood Professional Services, dated February 2, 2015. The costs have been reviewed and appear to be an appropriate estimate for the oversizing requested. PAGE 1 of 1 2/19/2015 Focus Engineering,Inc.Mail-Hammes Oversizing Jack Griffin <jack.griffin@focusengineeringinc.com> eyi;oc�41� Hammes Oversizing Ryan Bluhm <Ryan.Bluhm@westwoodps.com> Mon, Feb 2, 2015 at 9:41 AM To: Nick Johnson <NJohnson@lakeelmo.org> Cc: Jack Griffin <jack.griffin@focusengineeringinc.com>, Brian McGoldrick <brianjmcgoldrick@hotmail.com>, "Sonstegard, Mark" <msonsteg@ryland.com> Nick and Jack, The oversizing costs are as follows; - 12"watermain versus 8"watermain—3104LF x$12.50/LF = $37,248 - 12" Gate valves versus 8" Gate Valves—4 ea x$1225 = $4900 - 12" Plugs versus 8" Plugs—2 ea x$345 = $690 - 3481 Lbs of fittings versus 2350Lbs for 8" pipe = 1131`$5 = $5655 Total Oversizing = $48,493 1 hope this helps. See the attached sketch for the location of the 12"watermain. Thanks Ryan Bluhm Senior Project Manager Ryan.Bluhm@westwoodps.com Direct (952) 906-7432 Main (952) 937-5150 Cell (952) 873-9300 Multi-Disciplined Surveying & Engineering 7699 Anagram Drive I Eden Prairie, MN 55344 westwoodps.com (888) 937-5150 [Quoted text hidden] Confidentiality Statement: This message and any attachments may contain confidential, proprietary or legally privileged information. Any unauthorized dissemination, use, or disclosure of this information, either in whole or in part, is strictly prohibited. The contents of this e-mail are for the intended recipient and are not meant to be relied upon by anyone else. If you have received this message in error, please advise the sender by reply e-mail, and delete this message and any attachments. Thank you. in 12-inchwatermain.pdf 313K https://mail.google.com/mail/u/0/?ui=2&ik=885060bd59&view=pt&cat=City%20of%2OLake%20EImo%2 FPrivate%2ODevelopments%2F Hammes%20E... 1/1 1 Lt Ir to +� lilt ` — 0 14 = _ ------- - j! r 4$: •S9 ~ G rx KE47SAWME �( � asaK p aI c y WAS€a I : - s - � s -= 5 =a L A.g6Sg84 K' ,sS�Sb ,SSA ,q4>,5�, 9 ,yk,Y.:�laKg R 8 TAT N Y' Ra2i£ § R ,L t1 LiF �� .=s Yi§ ta Z R RRoom— 'dV HAMMES WEST LLC 36 Moonlight Bay Stillwater, MN 55082 (651) 439-3636 February 19, 2015 City of Lake Elmo Attn: Nick Johnson Per our conversation, I am requesting the number of model lot building permits be expanded from four to five. This will give each builder in our development a model for the Fall parade. Thank you in advance for your assistance. SInIcerely, ,-J-$rain Meol2rilc f / Chief Manager Hammes West LLC CITY OF LAKE ELMO WASHINGTON COUNTY STATE OF MINNESOTA RESOLUTION NO. 2014-81 A RESOLUTIONAPPROVING A FINAL PLAT FOR HAMMES ESTATES WHEREAS,the City of Lake Elmo is a municipal corporation organized and existing under the laws of the State of Minnesota; and WHEREAS,Hammes West, LLC, 36 Moonlight Bay, Stillwater, MN (Applicant)has submitted an application to the City of Lake Elmo (City) for a Final Plat for Hammes Estates, a copy of which is on file in the City of Lake Elmo Community Development Department; and WHEREAS,the Lake Elmo Planning Commission held a public hearing on May 12, 2014 to consider the Hammes Estates Preliminary Plat and continued discussion on the Preliminary Plat until its June 23,2014 meeting; and WHEREAS,the Lake Elmo Planning Commission has submitted its report and recommendation concerning the Preliminary Plat as part of a memorandum to the City Council for the July 1, 2014 City Council Meeting; and WHEREAS,the Lake Elmo Planning Commission adopted a motion recommending approval of the Preliminary Plat; and WHEREAS,the City Council reviewed the Preliminary Plat request at its July 1, 2014 meeting and adopted Resolution No. 2014-55 approving the Preliminary Plat; and WHEREAS, the Lake Elmo Planning Commission met on September 22, 2014 to review the Final Plat for Hammes Estates consisting of 57 single-family residential lots; and WHEREAS, on September 22, 2014 the Lake Elmo Planning Commission adopted a motion to recommend that the City Council approve the Final Plat for Hammes Estates with conditions; and WHEREAS, the City Council reviewed the recommendation of the Planning Commission and the Final Plat for Hammes Estates at a meeting held on October 7,2014; and NOW,THEREFORE,based upon the testimony elicited and information received, the City Council makes the following: FINDINGS 1) That the procedure for obtaining approval of said Final Plat is found in the Lake Elmo City Code, Section 153.08. 1 Resolution 2014-81 2) That all the requirements of said City Code Section 153.08 related to the Final PIat have been met by the Applicant. 3) That the proposed Final Plat for Hammes Estates consists of the creation of 57 single-family residential lots. 4) That the Hammes Estates Final Plat is consistent with the Preliminary Plat and Plans as approved by the City of Lake Elmo on July 1, 2014 and revised on August 25, 2014. 5) That the Hammes Estates Final Plat is consistent with the Lake Elmo Comprehensive Plan and the Future Land Use Map for this area. 6) That the Hammes Estates Final Plat complies with the City's Urban Low Density Residential zoning district. 7) That the Hammes Estates Final Plat complies with all other applicable zoning requirements, including the City's landscaping, storm water, sediment and erosion control and other ordinances, except as noted in this report or attachment thereof. 8) That the Hammes Estates Final Plat complies with the City's subdivision ordinance. 9) That the Hammes Estates Final Plat is consistent with the City's engineering standards with the exceptions noted by the City Engineer in his review comments to the City dated September 18, 2014. CONCLUSIONS AND DECISION NOW, THEREFORE, BE IT RESOLVED THAT the City Council does hereby approve the Final Plat for Hammes Estates subject to the following conditions: 1) Final grading, drainage, and erosion control plans,utility plans, sanitary and storm water management plans, and street and utility construction plans shall be reviewed and approved by the City Engineer prior to the recording of the Final Plat. All changes and modifications to the plans requested by the City Engineer in a memo dated 9/18/14 shall be incorporated into these documents before they are approved. 2) The developer shall provide evidence in a form satisfactory to the City Attorney that warrants it has fee interest in area included in the Hammes Estates Final Plat. 3) Prior to the execution of the Final Plat by City officials, the Developer shall enter into a Developer's Agreement acceptable to the City Attorney and approved by the City Council that delineates who is responsible for the design, construction, and payment of the required improvements with financial guarantees therefore. 2 Resolution 2014-81 4) All easements as requested by the City Engineer and Public Works Department shall be documented on the Final Plat prior to the release of the Final Plat for recording. 5) A Common Interest Agreement concerning management of the common areas of Hammes Estates and establishing a homeowner's association shall be submitted in final form to the Community Development Director before a building permit may be issued for any structure within this subdivision. Said agreement shall comply with Minnesota Statues 515B.3-103, and specifically the provisions concerning the transfer of control to the future property owners. The applicant shall also enter into a maintenance agreement with the City that clarifies the individuals or entities responsible for any landscaping installed in areas outside of land dedicated as public park and open space on the Final PIat. 6) The applicant shall provide fees in lieu of land dedication for 2.1 acres of land to fulfill the City's parkland dedication requirements in a pro-rated amount for the Phase 1 Area or in an amount addressing the total site. 7) The Final Landscape Plan shall be revised per the requested modifications of the City Landscape Consultant, documented in a memo dated 9/18/14. Final Landscape Plans shall be approved prior to the release of Final Plat for recording. 8) The applicant shall provide evidence that all conditions attached to the Valley Branch Watershed District permit for the Final Plat and associated grading work have been met prior to the commencement of any final grading activity. 9) The applicant must provide written authorization to perform any work in the Electrical Transmission easement areas prior to the release of the Final Plat for recording. 10)The applicant shall provide evidence that Washington County has approved final construction plans for all required work within the Keats Avenue right-of-way as described in a letter from the County dated May 6, 20I3. Final Construction Plans provided to the City shall be updated to include the improvements approved by Washington County 11)The applicant shall abide by all conditions of the MN DNR Public Waters Work Permit dated 8/27/14. 12)The applicant must revise the Goose Lake Park Plan to provide greater separation between the public use area and the lift station maintenance area. The applicant will be responsible for all necessary watershed district permitting requirements related to the Goose Lake Park improvements. 13)Per the recommendation of the Fire Chief, the applicant must submit all documentation related to the mitigation of the soil contamination to the Minnesota Pollution Control Agency's Voluntary Brownfield Program for review and approval prior to the issuance of any building pennits for the lots affected by the soil contamination. 14)Prior to the acceptance of the public improvements for the I s`Phase of the Hammes Estates subdivision, all wetland buffers shall be delineated and identified via staking or signage that is acceptable to the City. 3 Resolution 2014-81 15)Any boardwalk trail segments included in the Hammes Estates subdivision must be designed to accommodate bicycle traffic. 16)All trees impacted by the northern buffer trail must be inventoried and replaced at the schedule or rate specified in the City's tree preservation ordinance (§154.257). Passed and duly adopted this 7" day of October 2014 by the City Council of the City of Lake Elmo, Minnesota. Mike Pearson,Mayor ATTEST: Adam Bell, City Clerk 4 Resolution 2014-81 CITY OF LAKE ELMO WASHINGTON COUNTY STATE OF MINNESOTA RESOLUTION NO. 2014-82 A RESOLUTIONAPPROVING THE DEVELOPER'S AGREEMENT FOR HAMMES ESTATES 1 ST ADDITION WHEREAS, the City of Lake Elmo is a municipal corporation organized and existing under the laws of the State of Minnesota; and WHEREAS,The Ryland Group, Inc., 7599 Anagram Drive, Eden Prairie,MN ("Applicant")has previously submitted an application to the City of Lake Elmo ("City") for a Final Plat for Hammes Estates 1"Addition; and WHEREAS,the Lake Elmo City Council considered and approved the Preliminary Plat request for Hammes Estates at a meeting held on July 1,2014; and WHEREAS, The Lake Elmo City Council adopted Resolution No. 2014-82 on October 7, 2014 approving the Final Plat for Hammes Estates 1 S`Addition; and WHEREAS, Condition (2) of said Resolution No. 2014-82 establishes that,prior to the execution of the Final Plat by City officials,the Applicant is to enter into a Developer's Agreement with the City; and WHEREAS, the Applicant and City have agreed to enter into such a contract, and a copy of the Developer's Agreement was submitted to the City Council for consideration at its October 7, 2014 meeting. NOW, THEREFORE,based on the information received, the City Council of the City of Lake Elmo does hereby approve the Developer's Agreement for Hammes Estates 1S`Addition and authorizes the Mayor and City Clerk to execute the document. Passed and duly adopted this 71h day of October 2014 by the City Council of the City of Lake Elmo, Minnesota. Mike Pearson, Mayor ATTEST: dam Bell, City Clerk 1 Resolution 2014-82 THE CITY OF LAKE ELMO MAYOR & COUNCIL COMMUNICATION DATE: February 24, 2015 CONSENT ITEM# 13 AGENDA ITEM: Lennar Request to Amend Savona Preliminary Plat Approval Condition No. 19 SUBMITTED BY: Kyle Klatt, Community Development Director THROUGH: Dean Zuleger, City Administrator REVIEWED BY: Nick Johnson, City Planner Jack Griffin, City Engineer SUGGESTED ORDER OF BUSINESS: - Introduction of Item.....................................Community Development Director - Report/Presentation..............................Community Development Director - Questions from Council to Staff............................................. Mayor Facilitates - Call for Motion...............................................................Mayor&City Council - Discussion.......................................................................Mayor& City Council - Action on Motion....................................................................Mayor Facilitates POLICY RECCOMENDER: Staff is recommending that the City Council approve a request by Lennar Corporation to amend a condition that was attached to the City's approval of the Savona Preliminary Plat. FISCAL IMPACT: None. The request would allow the platting of additional lots that would bring in SAC and WAC payments. SUMMARY AND ACTION REQUESTED: The City Council is being asked to consider a request from Lennar Corporation to amend Condition No. 19 from Resolution No. 2013-064 that limits the number of residential units that can be platted within the Savona residential subdivision until such time that a secondary access is provided to the subdivision (beyond the current access to Keats Avenue that was constructed with the first phase of the project). Lennar is asking that this condition be reworded to limit the overall number of building permits that may be issued within the subdivision instead of platted units for the reasons stated in the attached letter. Given the level of platting that has occurred over the past two years within projects adjacent to Savona, Staff is recommending approval of the request,but is asking that the Council consider two conditions with this approval that will require the developer to continue building 5th --page 1 -- City Council Meeting [Consent Agenda Item 131 February 24,2015 Street as future single-family phases are platted, and to require that all necessary utility improvements are in place to serve the first two subdivision phases. Staff is recommending that the City Council approve the request to amend the Resolution approving the Preliminary Plat for Savona by adopting the following motion: "Move to adopt Resolution No. 2015-010, amending Resolution No. 2013-064 approving a preliminary plat for Savona." STRENGTHS,WEAKNESSES, OPPORTUNITIES,THREATS: Strengths: Approval of the request will allow additional platting of lots and allow the developer to respond to favorable market conditions. Platting around Savona has occurred that will allow for the secondary access to be provided on a faster time schedule than was anticipated when the preliminary plat was approved. The developer would still be limited to an overall number of units pending the completion of secondary access. Weaknesses: Staff has generally been recommending that a secondary access be provided into developments that exceed 100-150 units. Opportunities: Amending the secondary access condition will allow Lennar to plat additional townhouses in an area that is adjacent to the improved portion of 5th Street. Threats: There is no specific time frame for the completion of any secondary access, although the next phases of either Boulder Ponds or Hammes West will likely provide this connection. RECOMMENDATION: Based on the aforementioned, Staff is recommending that the City Council approve the request to amend Condition No. 19 from Resolution No. 2013-064 that limits the number of residential units that can be platted within the Savona residential subdivision until such time that a secondary access is provided to the subdivision through the following motion: "Move to adopt Resolution No. 2015-10, amending Resolution No. 2013-064 approving a preliminary plat for Savona." ATTACHMENTS: 1. Resolution No. 2015-10 2. Letter of Request from Lennar Corporation --page 2-- CITY OF LAKE ELMO WASHINGTON COUNTY, MINNESOTA RESOLUTION NO. 2015-10 A RESOLUTIONAMENDING RESOLUTIONNO. 2013-064 APPROVING A PRELIMINARY PLAT FOR SAVONA WHEREAS,the City of Lake Elmo is a municipal corporation organized and existing under the laws of the State of Minnesota; and WHEREAS,U.S. Home Corporation(d/b/a Lennar), 16305 36d'Avenue North, Suite 600,Plymouth, MN (Applicant)has submitted a request to the City of Lake Elmo (City) to amend one of the conditions attached to Resolution No. 2013-064 approving a Preliminary Plat for Savona, a copy of which is on file in the City of Lake Elmo Community Development Department; and WHEREAS,the Lake Elmo Planning Commission held a public hearing on July 22, 2013 to consider the Savona Preliminary Plat and continued discussion on the Preliminary Plat until its July 29, 2013 meeting; and WHEREAS,the Lake Elmo Planning Commission adopted a motion recommending approval of the Preliminary Plat; and WHEREAS,the City Council reviewed the Preliminary Plat request at its August 6, 2013 meeting and adopted Resolution No. 2013-064 approving the Preliminary Plat; and WHEREAS, said Resolution No. 2013-064 included Condition 19 as follows: No more than half of the residential units depicted on the preliminary plat (155)may be approved as part of a final plat until a second access is provided to the subdivision, either via a connection to Hudson Boulevard to the south, Inwood Avenue (CSAH 13)to the west, or back to Keats Avenue(CSAH 19) through the property to the north of Savona. WHEREAS, the City Council approved a Final Plat for Savona on February 18, 2014 and for Savona 2"d Addition on September 16,2014, which will allow for the construction of 111 single-family and multi-family units; and WHEREAS,the Applicant has submitted a request to revise said condition to allow for the platting of lots in excess of the 155 units prior to the provision of a secondary access into the development. NOW,THEREFORE,based upon the testimony elicited and infonnation received, the City Council makes the following: FINDINGS 1) That platting activity in the area around Savona has occurred that will provide for a secondary access for Savona when 5`" Street is constructed to the western property line as part of future development phases. 1 2) That platting activity to the north will bring another secondary connection point to within 300 feet of the Savona boundary. 3) That the Applicant has consented to not allowing building permits beyond 155 total units until such time that a secondary access into the development is provided. CONCLUSIONS AND DECISION NOW,THEREFORE, BE IT RESOLVED THAT the City Council does hereby amend Condition 19 of Resolution No. 2014-064 to read as follows: 19)A building permit may not be granted for more than half of the residential units depicted on the preliminary plat(155)until a second access is provided to the subdivision, either via a connection to Hudson Boulevard to the south, Inwood Avenue(CSAH 13) to the west, or back to Keats Avenue(CSAH 19) through the property north of Savona. NOW,THEREFORE,BE IT FURTHER RESOLVED THAT the approval of this amendment will subsequently amend Section 28 (L) of the development contracts for Savona and Savona 2nd Addition that reference Condition 19 of Resolution No. 2013-064 NOW,THEREFORE,BE IT FURTHER RESOLVED THAT the approval of this amendment is conditioned upon the following: a) That the Applicant continue to plat and construct 5th Street as part of future project phases, and that this construction will, at a minimum, extend as far west as the westernmost lot to be platted in future phases. b) That all required utility improvements are completed to provide the level of service required by the City Engineer within Savon and Savona 2°d Addition, including,but not limited to,the extension of a water service line to Hudson Boulevard North. Passed and duly adopted this 24th day of February 2015 by the City Council of the City of Lake Elmo, Minnesota. Mike Pearson, Mayor ATTEST: Adam Bell, City Clerk 2 LE N NAM Mr. Kyle Klatt Community Development Director City of Lake Elmo RE:Savona Preliminary Plat Condition of Approval#19 Hello Kyle, Per our recent discussions,one of the preliminary plat conditions(Condition#19)stipulates that"No more than half of the residential units depicted on the preliminary plat(155)may be approved as part of a final plat until a second access is provided to the subdivision, either via a connection to Hudson Boulevard to the south, Inwood Avenue (CSAH 13) to the west, or back to Keats Avenue (CASAH 19) through the property to the north of Savona." We respectfully request that this condition be amended to govern building permits, rather than platted lots. We understand the intent of this condition, and the fact that it was written when Lennar was the only builder in the area at that time.Given the properties to the north and west are likely to be underway soon and secondary access is anticipated from both locations, modifying the condition to account for the number of building permits will result in still regulating overall unit count,which is what generates traffic to/from an area.We propose the condition be revised in the following manner: "A building permit may not be granted for more than half of the residential units depicted on the preliminary plat (155) until a second access is provided to the subdivision, either via a connection to Hudson Boulevard to the south, Inwood Avenue (CSAH 13) to the west, or back to Keats Avenue (CSAH 19)through the property north of Savona." This will allow Lennar to continue platting and building homes (up to 50%) in Savona while these neighboring parcels begin developing. Please contact me with questions. Thank you, Paul J.Tabone Land Entitlement Mgr Lennar Minnesota 16305 36th Avenue N, Suite 600 • Plymouth, MN 55446 . LEMWAR.COM THE CITY OF LAKE ELMO MAYOR & COUNCIL COMMUNICATION DATE: February 24, 2015 REGULAR ITEM# 14 AGENDA ITEM: 39`h Street North: Street and Sanitary Sewer Improvements - Change Order No. 3 SUBMITTED BY: Chad Isakson,Project Engineer THROUGH: Dean A. Zuleger, City Administrator REVIEWED BY: Jack Griffin, City Engineer Cathy Bendel, Finance Director SUGGESTED ORDER OF BUSINESS: - Introduction/Staff Presentation.....................................................City Engineer - Questions from Council to Staff............................................. Mayor Facilitates - Public Input, if Appropriate........................................Mayor Facilitates - Call for Motion...............................................................Mayor& City Council - Discussion.......................................................................Mayor&City Council - Action on Motion....................................................................Mayor Facilitates POLICY RECOMMENDER: Engineering. FISCAL IMPACT: $19,435.00. This change order increases the contract amount for the project by $19,435.00 bringing the revised construction contract to $1,921,082.80. With this change order the project remains within the authorized project budget and contingencies. SUMMARY AND ACTION REQUESTED: The City Council is respectfully requested to consider approving Change Order No. 3 for the 39d' Street North: Street and Sanitary Sewer Improvements, thereby increasing the contract amount by $19,435.00. The recommended motion for the action is as follows: "Move to approve Change Order No. 3 for the 39"'Street North:Street and Sanitary Sewer Improvements thereby increasing the contract amount by$19,435.00." --page 1 -- City Council Meeting [Regular Agenda Item 14] February 24,2015 LEGISLATIVE HISTORY/BACKGROUND INFORMATION: This change order is being processed due to unforeseen subsurface conditions found by the Contractor in the trenchless installation of a 30-inch casing pipe within the Union Pacific Railroad Right-of-Way. An obstruction was encountered during the installation and the casing pipe could not be further advanced, in the opinion of the Contractor,utilizing the construction methods employed by the Contractor. The Contractor has therefore made a claim that differing or unusual subsurface conditions warrant a change in contract price in accordance with Section 4.03. The Contractor mobilized equipment and employed a ramming method to hammer the pipe in an attempt to advance the pipe past the obstruction located at approximately Station 0+40 at the direction of the City.The cost for utilizing this method was a lump sum amount of$19,435.00. This was an option reviewed by all parties involved and determined to provide the best opportunity to get through the obstruction at the lowest cost incurred by the City. Unfortunately the attempt of ramming the existing 30-inch pipe in place did not work.Boulder and cobble obstructions in the soil caused the casing pipe to remain stuck in place. Options are currently being presented by the Contractor for City review to determine the most cost effective way to proceed with completing the crossing. Future costs are unknown at the moment, however it is expected that a larger casing pipe will need to be installed at a higher cost and it is expected that the higher cost will exceed the project's contingency budget. Staff's recommendation on how to proceed will be presented to the Council for consideration at either the February 24, 2015 meeting or the March 3,2015 meeting. RECOMMENDATION: Staff is recommending that the City Council consider approving Change Order No. 3 for the 39`" Street North: Street and Sanitary Sewer Improvements, thereby increasing the contract amount by $19,435.00. The recommended motion for the action is as follows: "Move to approve Change Order No. 3 for the 39"'Street North:Street and Sanitary Sewer Improvements thereby increasing the contract amount by$19,435.00." ATTACHMENT(S): 1. Change Order No. 3 --page 2-- CONTRACT CHANGE ORDER FORM CITY OF LAKE ELMO, MINNESOTA FOCUS ENGINEERING, inc. 39TH ST N:STREET AND SANITARY SEWER IMP PROJECT NO.2014.131 CHANGE ORDER NO. 3 DATE: February 6, 2015 TO: GEISLINGER&SONS,INC,511 CENTRAL AVE S,PO BOX 437,WATKINS, MINNESOTA 55389 This Document will become a supplement to the Contract and all provisions will apply hereto.The Contract Documents are modified as follows upon execution of this Change Order. CHANGE ORDER DESCRIPTION/JUSTIFICATION: This change order is being processed due to unforeseen subsurface conditions found by the Contractor in the trenchless installation of a 30- inch casing pipe within the Union Pacific Railroad Right-of-Way. An obstruction was encountered during the installation,and the casing pipe could not be further advanced,in the opinion of the Contractor,utilizing the construction methods employed by the Contractor.The Contractor has therefore made a claim that differing or unusual subsurface conditions warrant a change in contract price in accordance with Section 4.03.Contractor is requesting additional compensation in the lump sum amount of$19,435.00 to employ a ramming method to hammer the pipe in an attempt to advance the pipe past the obstruction located at approximately Station 0+40.This change order together with the contract unit price provides compensation in full for the railroad right-of-way pipe crossing as detailed in the plans and specifications for the project. Attachments (list documents supporting change): None ITEM DESCRIPTION OF PAY ITEM UNIT QTY UNIT PRICE INCREASE/(DECREASE) CO3-1 30-INCH CASING PIPE-PIPE HAMMER LS 1 $19,435.00 $19,435.00 NET CONTRACT CHANGE $19,435.00 Amount of Original Contract $ 1,760,458.80 Sum of Additions/Deductions approved to date(CO Nos. 1,2) $ 141,189.00 Contract Amount to date $ 1,901,647.80 Amount of this Change Order (ADD) (DEDUCT-) (Pig CHANGE) $ 19,435.00 Revised Contract Amount $ 1,921,082.80 The Contract Period for Final Completion will be (UNCHANGED) (INCREASED)Ri,^ED) (DEGREASED) 0 days APPROVED BY ENGINEER: FOCUS Engineering,inc. APPROVED BY CONTRACTOR ENGINEER BY 2/6/2015 DATE DATE APPROVED BY OWNER: CITY OF LAKE ELMO,MINNESOTA BY BY DATE DATE FOCUS Engineering,inc. CHANGE ORDER FORM THE CITY OF LAKE ELMO MAYOR & COUNCIL COMMUNICATION DATE: February 24,2015 REGULAR ITEM#: 15 AGENDA ITEM: Amend City Facility Use Policy SUBMITTED BY: Mayor THROUGH: City Council REVIEWED BY: City Administrator/City Clerk SUGGESTED ORDER OF BUSINESS: - Introduction of Item..................................................................................Mayor - Report/Presentation................................................City Administrator - Questions from Council to Staff.............................................Mayor Facilitates - Call for Motion ...............................................................Mayor&City Council - Discussion.......................................................................Mayor&City Council - Action on Motion....................................................................Mayor Facilitates POLICY RECCOMENDER: Mayor Mike Pearson FISCAL IMPACT: Negligible...cost of DVDs SUMMARY AND ACTION REQUESTED: The City Council is asked to consider amending the City facility use policy to include a requirement that all statutorily created public bodies using the City of Lake Elmo facilities video record their proceedings in the interest of public transparency. The recommended motion is as follows: "Move to amend the City of Lake Elmo Public Facility Use Policy to include a provision that all statutory created public bodies and taxing authorities using the City's meeting facilities video record their proceedings in the interest of public transparency." BACKGROUND INFORMATION: In 2013, the City Council adopted the practice of recording all public meetings including but not limited to City Council, Commissions, Committees and work groups that officially act on behalf of the residents of Lake Elmo via authority granted by state statutes. In 2014, the City acquired, via its cable franchise agreement, state of the art portable video equipment that extends the City's recording capabilities to parks, other municipal facilities, and the library. This policy would formalize and extend the video recording requirement for all non-city statutory public bodies and taxing authorities using City of Lake Elmo meeting facilities for the purpose of public transparency, Council education, and public information via broadcast on the --page 1 -- City Council Meeting [Regular Agenda Item 15] February 24,2015 City's public access channel. UPDATE: The City Council discussed this item on 2/3/2015. The item was tabled so that Councilman Bloyer could participate in the discussion. The discussion also expanded to include a broader discussion about recording city meetings in general. The scope of this item only covers the recording of outside/non-city groups using city facilities. RECOMMENDATION: Based on the aforementioned, the Mayor recornmends the following motion: "Move to amend the City of Lake Elmo Public Facility Use Policy to include a provision that all statutory created public bodies and taxing authorities using the City's meeting facilities video record their proceedings in the interest of public transparency." ATTACHMENT: City Facility Use Policy including proposed amendment language --page 2 -- CITY OF LAKE ELMO CITY FACILITIES USE POLICY 1. Introduction City Facilities are operated by the City of Lake Elmo under the policy and guidelines established by the Lake Elmo City Council. 2. Purpose The purpose of this policy is to provide guidelines for the use of city facilities by non-city entities. 3. Priorities for Use Meetings related to the administration and operation of city government, including but not limited to city council, commission and advisory board meetings, have first priority for use of the facilities so that city business may be conducted. The City reserves the right to preempt a non-city related use, when necessary, to conduct essential city business. The City reserves the right to cancel any and all reservations without providing any other accommodations in the event the City facilities are needed for municipal government purposes. 4. Reservation Procedures City facilities are available for reservations on the following days and times: Mondays through Fridays, S:OOPM to 9:OOPM City facilities are closed to rentals on Saturdays, Sundays and legal holidays 5. Building Access A front door key will be signed out by the user at City Hall prior to city facility use and returned immediately thereafter in person or at the drop box at City Hall. Once inside the building, access will be limited to the reserved space, including public restrooms. 6. Law/Ordinance The user must comply with the laws of the State of Minnesota and City ordinances. The City has the right to terminate the use of the city facilities during any event or meeting if the user violates any state laws or city ordinances. 7. Prohibited Uses The following types of activities may not be held in any city facilities: commercial, for profit events such as sales solicitations or seminars for the purpose of selling products or services; religious services, prayer meetings or religious ceremonies; social events or private parties, including wedding ceremonies, birthday parties, family reunions and receptions; political party meetings or fund raisers. 8. Smoking Smoking at any city facility is prohibited at all times. 9. Alcohol Alcohol at any city facility is prohibited at all times. 10. Damage Any damage to the facilities or equipment must be reported to the city clerk's office as soon as possible. The user will be responsible for the costs of any damages incurred or extra cleaning required. Users take full responsibility for their group's conduct and for any loss,breakage or damage to the rooms, equipment, or other city facility property. The 1 City of Lake Elmo reserves the right to assign supervisory staff or maintenance personnel, at an additional cost to the users, if deemed necessary by the particular function or activity. 11. Liability The City of Lake Elmo is not liable for any loss, damage, injury or illness by the users of the facilities. Neither the City of Lake Elmo nor its employees can be held responsible for any items that are left at the facility by the user. 12. Clean-Up If a room has been rearranged by the user, it must be returned to its original condition. All trash and recycling must be picked up and put into receptacles. It is the responsibility of the user to leave the room in the condition in which it was provided. 13. Alterations No decorations, banners or signs can be taped, pinned or affixed to the walls, ceilings or windows. 14. Kitchen The service kitchen is not designed for preparing food and may not be used for serving food that has been prepared offsite. User groups are responsible for providing their own utensils, serving ware, coffee and condiments. The use of this facility must be strictly adhered to for safety considerations. 15. Candles Candles are prohibited in all city facilities. 16. Gambling/Games of Chance Gambling is prohibited in all city facilities. 17. Telephone Usage The telephone in the room may be used for local calls. 18. Restricting Use Staff shall have the authority, subject to the appeal of the City Council, to prohibit or limit use of city facilities by a particular user/group based upon knowledge that the user/group has caused damage to other public facilities or when disruption, damage, theft or other unfavorable history is recorded from previous use of any city facilities. 19. No Discrimination The City of Lake Elmo is an equal opportunity employer and provider. The City does not discriminate or endorse based on race, religion, sex, age, national origin, or any other protected class under state or federal law. 20. Recording of activities In the interest of public transparency, all statutory created public bodies and taxing authorities using the City's meeting facilities are required to video record their proceedings. 2 THE CITY OF LAKE ELMO ` MAY OR & COUNCIL COMMUNI CA TION DATE: February 24, 2015 REGULAR ITEM#: 16 AGENDA ITEM: Recording City Meetings SUBMITTED BY: Councilmember Bloyer THROUGH: City Council REVIEWED BY: City Administrator/City Clerk SUGGESTED ORDER OF BUSINESS: - Introduction of Item..................................................................................Mayor - Report/Presentation................................................City Administrator - Questions from Council to Staff.............................................Mayor Facilitates - Call for Motion ...............................................................Mayor& City Council - Discussion.......................................................................Mayor& City Council - Action on Motion....................................................................Mayor Facilitates POLICY RECCOMENDER: Council Member Bloyer FISCAL IMPACT: Negligible...cost of DVDs if reproduced for viewing SUMMARY AND ACTION REOUESTLD: The City Council is asked to consider formally adopting a policy that all decision-making public bodies that are subject to the MN Open Meeting Law electronically record their proceedings in the interest of public transparency by taking the following action: "Move to adopt a policy of all City of Lake Elmo public bodies subject to the Open Meeting Law be required to electronically record their proceedings in the interest of public transparency." BACKGROUND INFORMATION: Since 2013,the City has strived to implement the practice of electronically recording,via audio or video, all public meetings, including but not limited to the City Council, the Planning and Park Commissions,the Economic Development Authority, and the Human Resources, Finance, and Public Safety Committees. As these bodies are subject to the state Open Meeting Law (OML) and there is a public interest in the actions taken during the meetings, it is common for bodies such as these to record the proceedings; however, it is not statutorily required to do so. This policy would formalize the previously implemented practice of recording public meetings by all Lake Elmo decision-making authorities subject to the MN OML for the purpose of public --page 1 -- City Council Meeting [Consent Agenda Item 16] February 24,2015 transparency and engagement, Council education, and promoting public information. According to the League of Women Voters: The legal framework [that public sector entities operate] is one where unlike private entities, government entities are statutorily required to conduct their business through open, transparent processes to ensure that they are accountable to the citizenry. This modern practice of open government is viewed as both a key feature and a necessary condition of a contemporary democratic state. It is based upon the conviction that the people can only effectively exercise their constitutional role as overseers of govemment action where their unfettered rights of access to information about government operations are secure. Public transparency laws thus have been enacted throughout the United States at both the federal and state level for the purpose of maintaining free and open access to the government's proceedings,deliberations, decision-making and records. Such laws include sunshine or open meeting laws, which seek to ensure that the public may observe the meetings and deliberations of government bodies, and freedom of information or public record acts, which seek to ensure public access to the documents and records of government. In Minnesota, the OML allows the public to make an audio or videotape of an open meeting if doing so does not have a significantly adverse impact on the order of the meeting. The city council may not prohibit dissemination or broadcast of the tape. If a government entity makes a recording, the recording is a government record that must be kept in compliance with the city's record-retention policy. It must also be made available to the public if it contains public data. As mentioned above, there is no legal requirement to record the proceedings of open meetings. All closed meetings however, except meetings closed under the attorney-client privilege,must be electronically recorded at the city's expense. Unless otherwise provided by law, the recordings must be preserved for at least three years after the date of the meeting. RECOMMENDATION: Based on the aforementioned, the Council is asked to formally adopt the policy of recording all public meetings by taking the following action: "Move to adopt a policy of all City of Lake Elio public bodies subject to the Open Meeting Law be required to electronically record their proceedings in the interest of public transparency." --page 2-- THE CITY OF LAKE ELMO� MAYOR & COUNCIL COMMUNICATION DATE: February 24,2015 REGULAR ITEM # 17 AGENDA ITEM: Ramsey/Washington SCC - Comcast Transfer; Resolution No. 2015-11 SUBMITTED BY: Adam Bell, City Clerk THROUGH: Dean Zuleger, City Administrator REVIEWED BY: Ramsey/Washington Suburban Cable Commission Executive Director Tim Finnerty Lake Elmo Cable Commission Representative Ginny Holder SUGGESTED ORDER OF BUSINESS: - Introduction of Item............................................................................City Clerk - Report/Presentation........................................................Tim Finnerty Questions from Council to Staff.............................................Mayor Facilitates - Call for Motion...............................................................Mayor&City Council - Discussion.......................................................................Mayor& City Council - Action on Motion....................................................................Mayor Facilitates POLICY RECOMMENDER: Ramsey/Washington Suburban Cable Commission FISCAL IMPACT: Any potential fiscal impact is unknown at this time. SUMMARY AND ACTION REQUESTED: The City Council is respectfully requested to approve Resolution No. 2015-011, A Resolution Conditionally Granting The Consent To The Transfer Of Control Of The Cable Television Franchisee And Cable Television System From Comcast Corporation To Greatland Connections, Inc.by taking the following action: "Move to approve Resolution No. 2015-11 conditionally approving the Co»tcast transfer." LEGISLATIVE HISTORY: As part of the Time Warner/Comcast merger, Comcast plans to spin off the cable systems in the Twin Cities area to a new company,Midwest Cable, operating as GreatLand Communications, and apparently most of the day-to-day operations of the company will actually be handled by Charter Communications. The companies have requested approval of this from the Cable Commission and its member municipalities. --page 1 -- City Council Meeting [Regular Agenda Item 17] February 24,2015 For more detail and information on the proposed transfer R/WSCC Executive Director Tim Finnerty will be available for questions at the meeting. Please also refer to the attached R/WSCC transfer memo. BACKGROUND INFORMATION (SWOT): Strengths The R/WSCC has taken great care in drafting conditions for approval that protect Lake Elmo residents and customers, including extension of Comcast service to the Sanctuary neighborhood. Weaknesses Neither Comcast or Midwest/GreatLand have provided information requested by the communities that would allow for a full review of the transaction. The information that is available — largely, information that was contained in SEC filings — suggests that Midwest/GreatLand's ability to provide adequate service, meet local needs, and correct past performance issues is questionable. Essentially, the consultants suggest that in the initial years, the company will have negative cash flow, and few options for obtaining the credit required to invest in communities in the Twin Cities area. The merger may create bankruptcy risks. Much of the day-to-day operation of the cable system will be handled by Charter Communications. Charter has a very bad customer service reputation. According to J.D. Power, in the North Central Region, Charter ranks below Comcast in customer service ratings http//www jdpower com/press-releases/2014-us-residential-television-intemet- telephone-service-provider-satisfaction (in other parts of the country, Charter ranks just above Comcast). It is not clear that Midwest/GreatLand will have any real ability to ensure that customer service is adequate. Opportunities This situation provides an opportunity to consider the current franchise agreement and Lake Elmo's status in R/WSCC. Threats There may be significant transitional service issues that affect consumers, and the companies have yet to provide any meaningful infonmation that addresses the transitional issues adequately. The transfer may require significant increases in rates, or reductions in customer service or capital investment. Comcast and Midwest/GreatLand could sue communities that deny the transfer if they believe that the transfer was unreasonably denied. RECOMMENDATION: Based on the aforementioned, the staff recommends the following motion: "Move to approve Resolution No. 2015-11 conditionally approving the Comcast transfer." ATTACHMENTS: 1. R/WSCC Comcast Transfer Memo 2. Transfer Agreement 3. Guarantees 4. Resolution No. 2015-11, A Resolution Conditionally Granting The Consent To The Transfer Of Control Of The Cable Television Franchisee And Cable Television System From Comcast Corporation To Greatland Connections, Inc. --page 2-- COMCAST - MIDWEST/GREATLAND TRANSFER I. OVERVIEW - TIMING As part of the Time Warner/Comcast merger, Comcast plans to spin off the cable systems in the Twin Cities area to a new company, Midwest Cable, operating as GreatLand Communications, and apparently most of the day-to-day operations of the company will actually be handled by Charter Communications. The companies have requested approval of this from the Cable Commission and its member municipalities. Absent a further extension, in order to protect their rights to review the proposed spin-off of the cable system from Comcast to Midwest/GreatLand, the member municipalities of the Commission must act to grant, deny or condition the transfer on or before the end of February 2015. To meet that deadline, the Commission adopted recommendations with respect to the transfer at its February 12 meeting, and those recommendations have been forwarded to member municipalities for final action. Consultants retained by the Commission (Front Range Consulting and Ashpaugh & Sculco) conducted an analysis and created recommendations for consideration and prepared resolutions that can be adopted by the communities either granting or denying the transfer, or granting subject to conditions. The Cable Commission has sent to each of its member municipalities its recommendations as to what action should be taken on the transfer. II. HOW YOU SHOULD PREPARE First, this matter needs to be scheduled on your City Council agenda at a meeting in the required timeframe. Second, each community may receive visits from GreatLand and Comcast arguing: • They've already received most of the necessary approvals • Comcast has been a good corporate citizen, and GreatLand is ready to be a good corporate citizen • This should all be decided in Washington, D.C. • If your community stands in the way of the transaction, there will be hell to pay (stated in a little nicer way). Third, in anticipation of possible visits from GreatLand and/or Comcast, here are key points to know: • Each of the localities has the right to review the transaction. It is not just a Washington issue. • In fact, under federal law, local review is a critical part of the merger approval process. A locality is supposed to address non-compliance issues as part of any transfer. There are known non-compliance issues in the areas of customer service; safety code compliance; and rates and charges. There is a temporary resolution of issues regarding compliance with existing franchise requirements for high definition channels, but that temporary resolution will expire soon. Failure to address these issues may result in a loss of rights in the ongoing renewal proceeding. • In addition, the communities are all in the midst of the cable renewal process. We know that there are significant issues regarding system build-out (to service some areas of the community) as well as continued adequate support for PEG and the INET. If Midwest/GreatLand does not have adequate resources to address these issues, or if you don't have agreements in place that address these issues, the communities may find themselves losing significant dollar support for PEG and for the INET. • The initial analysis performed by consultants retained by the communities is expected to show that there are substantial questions about the viability of Comcast/GreatLand. • Other communities have denied, or moved to deny all or a portion of the Comcast/Time Warner merger, and press reports indicate that the company has responded by resolving disputes with those communities, and addressing concerns similar to those identified above. Fourth, constituents or policy makers may want to know what happens if a community denies a transfer. If a community denies, then Comcast should retain control of the system until and unless the community and Comcast agree on terms for approval. That does not mean the transaction as a whole is stopped. Comcast can close the deal with Midwest/GreatLand in communities that approve the deal, and would likely do so in other areas of the country. If Comcast does transfer, Midwest/GreatLand and Comcast may be subject to significant liquidated damages. Comcast and Midwest/GreatLand could sue communities that deny the transfer if they believe that the transfer was unreasonably denied. But they are more likely to attempt to resolve disputes with the communities as an initial matter. It is quite possible that there will be substantial grounds for denial. And fifth, folks might want to know what other communities in the Twin Cities region are doing. Some communities will approve the transaction as part of a settlement of franchise issues. The North Suburban communities are an example, where the existing franchise is being extended. But others are in the same position as you, and we expect decisions to be made early next year. III. DETAIL - CONCERNS ABOUT THE TRANSACTION The consultants reported the following: • Neither Comcast or Midwest/GreatLand have provided information requested by the communities that would allow for a full review of the transaction. • The information that is available - largely, information that was contained in SEC filings - suggests that Midwest/GreatLand's ability to provide adequate service, meet local needs, and correct past performance issues is questionable. Essentially, the consultants suggest that in the initial years, the company will have negative cash flow, and few options for obtaining the credit required to invest in communities in the Twin Cities area. The merger may create bankruptcy risks. • Much of the day-to-day operation of the cable system will be handled by Charter Communications. Charter has a very bad customer service reputation. According to J.D. Power, in the North Central Region, Charter ranks below Comcast in customer service ratings http://www.iddpower.com/press-releases/2014-us-residential-television-internet- telephone-service-provider-satisfaction (in other parts of the country, Charter ranks just above Comcast). It is not clear that Midwest/GreatLand will have any real ability to ensure that customer service is adequate • There may be significant transitional service issues that affect consumers, and the companies have yet to provide any meaningful information that addresses the transitional issues adequately. • The transfer may require significant increases in rates, or reductions in customer service or capital investment. This suggests that there may be the following grounds for denying the transfer, with leave to the companies to seek approval at a later date if the concerns are addressed: • The failure to cooperate in the transfer review • The failure to show that Midwest/GreatLand are in a position to perform now or meet future needs • The failure to address and resolve past performance issues The potential negative effect of the transaction on competition in the provision of cable services (as the region becomes more concentrated, and with Charter's interest in the system, the transaction makes it less likely that competition will develop). CenturyLink has raised concerns about these effects at the FCC, and those concerns may also be considered locally. TRANSFER AGREEMENT BETWEEN AND AMONG THE MEMBERS OF THE RAMSEY WASHINGTON SUBURBAN CABLE COMMISSION, COMCAST OF MINNESOTA, INC. AND MIDWEST CABLE, INC. WHEREAS Comcast of Minnesota Inc. "Franchisee" o a cable television( ) erates p system (the"System") in communities which are members of the Ramsey/Washington Suburban Cable Commission (RWSCC) pursuant to a franchise to which the City of Birchwood Village, the City of Dellwood, the City of Grant, the City of Lake Elmo, the City of Mahtomedi, the City of Maplewood, the City of North St. Paul, the City of Oakdale, the City of Vadnais Heights, the City of White Bear Lake, White Bear Township and the City of Willernie, Minnesota, are parties (each community is a "Franchisor"); a March 9, 1995 Memorandum of Understanding; and the April 10, 2014 Settlement Agreement(the"Franchise Documents"); and WHEREAS, the existing franchise agreement dated November 29, 1999, expired on November 28, 2014; and WHEREAS, the Franchise requires the Franchisor's prior consent to a sale or transfer of stock so as to create a new controlling interest under Minnesota Statutes 238.083; and WHEREAS, Comcast of Minnesota, Inc., is an indirect, wholly-owned subsidiary of Comcast Corporation("Comcast"); and WHEREAS, Comcast, as the ultimate parent corporation of Franchisee, has agreed to divest and transfer the Franchisee, following its conversion to a limited liability company, and Cable System to Midwest Cable, Inc., in a process described in the Transfer Application (the "Proposed Transaction"); and WHEREAS, immediately following the closing of the Proposed Transaction, Midwest Cable, Inc., will be renamed GreatLand Connections, Inc., and, for the purposes of this Resolution, the transfer applicant will be referred to as "GreatLand"throughout; and WHEREAS, Comcast filed a Federal Communications Commission Form 394 with the RWSCC on June 18, 2014, together with certain attached materials, which documents more fully describe the Proposed Transaction and which documents, with their attachments, contain certain promises, conditions, representations and warranties (the"Transfer Application"); and WHEREAS, under the Proposed Transaction, the ultimate ownership and control of the Franchisee and the System will change, and it requires the prior written approval of the Franchisor; and WHEREAS, Comcast, through its subsidiaries, provided written responses to some of the data requests issued by the Franchisor or by the RWSCC, including directing the representatives of the Franchisor to publicly filed and available information, and information posted to Comcast Corporation and other websites (the"Data Request Responses"); and WHEREAS, the Franchisee has agreed it will continue to be responsible for all acts and omissions, known and unknown, under the Franchise Documents and applicable law for all purposes, including (but not limited to) franchise renewal, and Franchisee agrees that it will continue to be so responsible. WHEREAS, the parties have reached agreement on other terms and conditions under which the Application may be approved, subject to and in reliance upon the representations made by and on behalf of Comcast of Minnesota, Inc, Comcast, and GreatLand to the Franchisor, RWSCC and their representatives. NOW, THEREFORE,THE PARTIES AGREE AS FOLLOWS: Section 1. This Agreement shall only be effective as to those communities which grant the Transfer Application in a form substantially similar to the attached to this Agreement. This Agreement shall be dated February 15, 2015 for purposes of identification. Section 2. The parties agree: a) The Franchise is extended through and including July 1, 2018. b) Paragraph 10 of the"Settlement Agreement Regarding PEG Capacity" is amended so that the reference to January 1, 2016 is changed to July 1, 2018. c) Paragraph 2 of the "Settlement Agreement Regarding PEG Capacity" is amended to read as follows: "Comcast will make available a second HD PEG channel conditioned upon the Commission affirming in writing that it has ready and available a minimum of 100 hours of locally produced HD content that has not been carried on the existing HD channel. On or after January 1, 2017, the Commission may request the launch of a third HD PEG channel in exchange for the discontinuance of one (1) standard definition PEG channels of the Commission's choosing. The Commission shall affirm in writing that it has ready and available sufficient locally produced HD PEG programming not already carried on the other two HD PEG channels so as to be able to program at least 6 hours per day with non-character generated HD PEG programming. d) Franchisee will correct any safety code issues identified to it by the Commission as of January 31, 2015 and identify the results of its work to the Commission. Comcast will complete this review and the corrective actions by March 31, 2015. e) Franchisee has been in discussions with Lake Elmo and will promptly reach agreement on the timing and details of a Comcast line extension of its system without charge to the customers or Franchisor, without regard to whether density requirements in the Franchise are satisfied, as to The Sanctuary Development in Lake Elmo. Further, Comcast will promptly commence discussions with Grant regarding the timing of line extensions along the following routes which extension shall also be made without charge to customers or Franchisor, without regard to whether density requirements in the Franchise are satisfied: 1051h Street between Jamaica Av N and Inwood Av N; and Inwood Av N between 105th St and I I0th Street. Absent a finding of unusual costs, construction shall commence in a reasonable time period. Franchisee may continue to charge for drop costs for drops Transfer Agreement 2 whose length from the nearest right of way to the customer premises exceed standard installations, as provided in the Franchise. f) Franchisee will pay Commission $15,000 in connection with issues surrounding the transfer application. This amount is not and may not be treated as a franchise fee. g) Franchisee shall pay the Commission$47,610.16 in past-due franchise fees and penalties arising out of a review it conducted of its allocation of revenues from its HD Service Bundles and the omission of the HD Technology Fee from the revenue allocations in certain of those packages from 2012 through 2014. This payment will be made within 30 days of the approval of effective date of this agreement. h) GreatLand warrants that nothing about the Transition Services Agreement with Comcast or the Charter Services Agreement, including the 4.25% fee thereunder, or the relationships created by those agreements, shall be used to reduce the franchise fees otherwise due under the Franchise Documents for cable services provided in any RWSCC community, such that franchise fees cannot be evaded by virtue of those agreements. Within 30 days after closing the Proposed Transaction, GreatLand shall provide a copy of the Charter Services Agreement and Comcast Transition Agreement, subject to reasonable confidentiality protections as necessary. i) GreatLand and Franchisee warrant that for so long as (1) Franchisee is under the ultimate control of GreatLand and (2) the current franchise agreement remains in effect, Franchisee will continue the same franchise fee offset practices as have been followed by the Franchisee during the fourth quarter of 2014. Should a Franchisor grant a competing cable service or video service franchise that is not subject to franchise fee offset limitations as specified herein, this Section 1.9 shall terminate on the date of such franchise grant as to such Franchisor. j) GreatLand assures that it will cause to be made available adequate financial resources to allow Franchisee to meet its obligations under the Franchise, including without limitation, customer service standards in the franchise and under federal law, build out obligation,PEG funding, and all other financial obligations in the Franchise. k) Each Franchisor is only approving the transfer of control to Midwest Cable, Inc. No other transaction is approved, and any other transaction that is subject to approval under the franchise or cable ordinance, whether or not contemplated in the application, shall require Franchisor approval. 1) Each Franchisor's approval of the Transfer Application is made without prejudice to, or waiver of, its and/or the Franchisor's right to fully investigate and consider during any future franchise renewal process: (i) Franchisee's financial, technical, and legal qualifications; (ii) Franchisee's and Franchisee's compliance with the Franchise; and (iii) any other lawful,relevant considerations. m) Each Franchisor's approval of the Transfer Application is made without prejudice to, or waiver of, any right of the Franchisor to consider or raise claims based on Franchisee's or Franchisee's defaults, any failure to provide reasonable service in light of the community's needs, or any failure to comply with the terms and conditions of the Franchise Documents, or with applicable law. Transfer Agreement 3 n) Each Franchisor waives none of its rights with respect to the Franchisee's compliance with the terms, conditions, requirements and obligations set forth in the Franchise and in applicable law. A Franchisor's approval of the Transfer Application shall in no way be deemed a representation by the Franchisor that the Franchisee is in compliance with all of its obligations under the Franchise and applicable law. GreatLand warrants that Franchisee will be able to comply with all the terms and conditions of those agreements, including provisions requiring production of documents, maintenance of records and system monitoring. o) After the Proposed Transaction, GreatLand and Franchisee will be bound by all the commitments, duties, and obligations, present and continuing, embodied in the Franchise Documents and applicable law. The Proposed Transaction will have no effect on these obligations. Likewise, the Proposed Transaction will have no effect on any other agreement with any Franchisor or RWSCC now in force or which must be accepted as a condition of the approval hereunder. p) GreatLand shall provide an executed written certification in the form attached hereto within thirty (30) days after consummation of the Proposed Transaction, guarantying the full performance of the Franchisee. GreatLand shall provide the Commission with written notification that the Proposed Transaction closed within ten (10) days after the closing; q) GreatLand will comply with any and all conditions or requirements applicable to GreatLand set forth in all approvals granted by federal agencies with respect to the Proposed Transaction and Transfer Application, however nothing in this paragraph is intended to create or grant any Franchisor or the Commission authority to enforce the conditions that it would not otherwise have. r) GreatLand shall provide a written guarantee in the form attached hereto within thirty (30) days of consummation of the Proposed Transaction specifying that subscriber rates and charges in the Franchise area will not increase or services be reduced as a result of the costs of the Proposed Transaction. GreatLand's current projections do not require it to increase cable rates, or decrease cable services, in order to perform its obligations under the Franchise Documents, other than those changes made in the ordinary course of business. It will not contend that Franchisee is entitled to any relief from obligations (under the Cable Act's commercially impracticable standard or otherwise) based on the failure of any financial assumption related to the Proposed Transaction to materialize. s) After the Proposed Transaction is consuminated, GreatLand and Franchisee will continue to be responsible for all past acts and omissions, known and unknown, under the Franchise Documents and applicable law for all purposes, including (but not limited to) Franchise renewal to the same extent and in the same manner as before the Proposed Transaction. t) Except as specifically provided herein, nothing in this Agreement amends or alters the Franchise Documents or any requirements therein or in any agreement between Franchisor and Franchisee in any way, and all provisions of the same remain in full force and effect and are enforceable in accordance with their terms. Transfer Agreement 4 u) The Proposed Transaction shall not permit GreatLand and Franchisee to take any position or exercise any right with respect to the Franchise and the relationship thereby established with a Franchisor or the Commission that could not have been exercised prior to the Proposed Transaction. v) Approval is conditioned upon receipt of any and all state and federal approvals and authorizations required for the Proposed Transaction. w) The terms and conditions on which the Proposed Transaction closes may not be materially different from the terms and conditions presented to Franchisor as part of the Form 394 application, as amended by subsequent information and representations provided to or made available to the Franchisor directly or by identified public links to such information. x) Approval of the transfer does not constitute an endorsement of any of the terms of the Charter Service Agreement or Transition Services Agreement, and the same do not excuse performance under the Franchise Documents. y) In the event GreatLand were to file for Bankruptcy, GreatLand acknowledges that PEG fees and franchise fees are administrative priority claims, and each Franchisor shall have all of the protections available to the maximum extent allowed under federal bankruptcy law to the continued performance by Franchisee under the Franchise, including the payment of franchise fees and the right to review and approve any transfer or change in control over the Franchisee. Section 3. If any of the conditions or requirements specified in this Agreement are not satisfied, such failure shall be deemed a material breach of the Franchise Documents and applicable law, and subject to revocation and other remedies contained in the Franchise Documents and applicable law. Section 4. If any of the written representations made to the Franchisor or its representatives in the Transfer Application proceeding by (i) Franchisee, (ii) Comcast or (iii) GreatLand, (iv) any subsidiary or representative of the foregoing prove to be materially incomplete, untrue or inaccurate in any material respect, it shall be deemed a material breach of the Franchise Documents and applicable law, and subject to revocation and to other remedies contained in the Franchise Documents and applicable law. Section 5. This agreement shall be governed by the laws of Minnesota. Section 6. This agreement is binding on each party's successors and assigns. Section 7. This Agreement may be executed in counterparts, each of which shall be deemed to be an original,but all of which, taken together, shall constitute one and the same agreement. Transfer Agreement 5 Midwest Cable, Inc. City of Mahtomedi By: By: Name: Name: Title: Title: Date: Date: Comcast of Minnesota, Inc. City of Maplewood By: By: Name: Naive: Title: Title: Date: Date: City of Birchwood Village City of North St. Paul By: By: Name: Name: Title: Title: Date: Date: City of Dellwood City of Oakdale By: By: Name: Name: Title: Title: Date: Date: City of Grant City of Vadnais Heights By: By: Name: Name: Title: Title: Date: Date: City of Lake Elmo City of White Bear Lake By: By: Name: Name: Title: Title: Date: Date: White Bear Township City of Willemie By: By: Name: Name: Title: Title: Date: Date: Transfer Agreement 6 i Attachment 1 Form of Guaranty of Performance GUARANTY OF PERFORMANCE GreatLand Connections, Inc., as the ultimate parent entity of Comcast of Minnesota, LLC,the Franchisee,upon closing of the proposed transaction(as defined in Resolution No. certifies that it has sufficient financial resources and will at all times make available all necessary financial resources to ensure that the Franchisee has the capability to operate and maintain the System in accordance with the Franchise and applicable laws, regulations codes and standards, and to fully comply at all times with the Franchise, and applicable laws, regulations, codes and standards and guarantees such performance. GreatLand Connections, Inc., agrees that any failure to adhere to this guaranty shall be deemed a violation of the Franchise held by the Franchisee. EXECUTED as of GreatLand Connections, Inc. By: Name: Title: Address: Transfer Agreement 7 Attachment 2 Form of Guaranty Regarding Rates GUARANTY REGARDING RATES GreatLand Connections, Inc.,upon closing of the proposed transaction(as defined in Resolution No. ), guarantees that rates and charges for cable service offered by Comcast of Minnesota, LLC, the Franchisee in the Franchisor,will not increase as a result of the cost of the proposed transaction. GreatLand Connections, Inc., agrees that any failure to adhere to this guaranty shall be deemed a violation of the Franchise held by the Franchisee, Comcast of Minnesota, LLC. EXECUTED as of GreatLand Connections,Inc., By: Name: Title: Address: RESOLUTION NO. 2015-11 A RESOLUTION CONDITIONALLY GRANTING THE CONSENT TO THE TRANSFER OF CONTROL OF THE CABLE TELEVISION FRANCHISEE AND CABLE TELEVISION SYSTEM FROM COMCAST CORPORATION TO GREATLAND CONNECTIONS,INC. WHEREAS, Lake Elmo, Minnesota, ("Franchisor") is a Municipal Corporation; and WHEREAS, Comcast of Minnesota, Inc., ("Franchisee") operates a cable television system (the "System") in Lake Elmo, pursuant to a franchise agreement, a March 9, 1995 Memorandum of Understanding, and the April 10, 2014 Settlement Agreement (the "Franchise Documents"); and WHEREAS, the existing franchise agreement dated November 29, 1999, expired on November 28, 2014; and WHEREAS, Section 10.5 of the Franchise requires the Franchisor's prior consent to a sale or transfer of stock so as to create a new controlling interest under Minnesota Statutes 238.083; and WHEREAS, Comcast of Minnesota, Inc., is an indirect, wholly-owned subsidiary of Comcast Corporation("Comcast"); and WHEREAS, Comcast, as the ultimate parent corporation of Franchisee, has agreed to divest and transfer the Franchisee, following its conversion to a limited liability company, and Cable System to Midwest Cable, Inc., in a process described in the Transfer Application (the "Proposed Transaction"); and WHEREAS, immediately following the closing of the Proposed Transaction, Midwest Cable, Inc., will be renamed GreatLand Connections, Inc., and, for the purposes of this Resolution, the transfer applicant will be referred to as "GreatLand"throughout; and WHEREAS, Comcast filed a Federal Communications Commission Form 394 with the Franchisor on June 18, 2014, together with certain attached materials, which documents more fully describe the Proposed Transaction and which documents, with their attachments, contain certain promises, conditions,representations and warranties (the"Transfer Application"); and WHEREAS, under the Proposed Transaction, the ultimate ownership and control of the Franchisee and the System will change, and it requires the prior written approval of the Franchisor; and WHEREAS, Comcast, through its subsidiaries, provided written responses to some of the data requests issued by the Franchisor or by the Ramsey Washington Suburban Cable Commission, including directing the representatives of the Franchisor to publicly filed and Transfer Agreement 9 available information, and information posted to Comcast Corporation and other websites (the "Data Request Responses"); and WHEREAS, Franchisee and GreatLand have signed a Transfer Agreement, dated for purposes of identification February 15, 2015, (the "Transfer Agreement") binding on each of them, which sets forth certain agreements, guaranties,warrantied and conditions; WHEREAS, based on that agreement, and in reliance upon the representations made by and on behalf of Comcast of Minnesota, Inc, Comcast, and GreatLand, to the Franchisor, RWSCC recommended, and Franchisor is willing to grant consent to the Proposed Transaction, so long as those representations are complete and accurate and the agreement becomes fully enforceable; and WHEREAS, subject to the foregoing, the Franchisor's approval of the Proposed Transaction is therefore appropriate if the Franchisee will continue to be responsible for all acts and omissions, known and unknown, under the Franchise Documents and applicable law for all purposes, including (but not limited to) franchise renewal, and Franchisee has agreed that it will continue to be so responsible. NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF LAKE ELMO AS FOLLOWS: Section 1. The Mayor or City Administrator are authorized to sign that certain Transfer Agreement on behalf of Franchisor Section 2. The Franchisor's consent to and approval of the Transfer Application is hereby GRANTED in accordance with the Franchise, subject to the terms and conditions of the Transfer Agreement. Section 3. This Resolution shall not be construed to grant or imply the Franchisor's consent to any other transfer or assignment of the Franchise or any other transaction that may require the Franchisor's consent under the Franchise Ordinances or applicable law. The Franchisor reserves all its rights with regard to any such transactions. Section 4. This Resolution is a final decision on the Transfer Application within the meaning of 47 U.S.C. § 537. Section 5. The transfer of control of the Franchisee and Franchisee from Comcast to GreatLand shall not take effect until the consummation of the Proposed Transaction. Passed and duly adopted this 24a'day of February 2015 by the City Council of the City of Lake Elmo, Minnesota. Mike Pearson, Mayor ATTEST: Adam Bell, City Clerk Transfer Agreement 10 THE CITY OF LAKE ELMO MA YOB? & GOUNCI f COMMUNICATION DATE: February 24, 2015 REGULAR ITEM# 18-FISCAL IMPACT AGENDA ITEM: Financial Planning Services Agreement SUBMITTED BY: Cathy Bendel, Finance Director THROUGH: Dean Zuleger, City Administrator REVIEWED BY: Adam Bell,Assistant City Administrator/City Clerk SUGGESTED ORDER OF BUSINESS: - Introduction of Item..............................................................City Administrator - Report/Presentation................................................City Administrator - Questions from Council to Staff............................................. Mayor Facilitates - Call for Motion...............................................................Mayor& City Council - Discussion.......................................................................Mayor& City Council - Action on Motion.................................................................... Mayor Facilitates POLICY RECOMMENDER: Finance Director FISCAL IMPACT: $5,000.00; unbudgeted expense. SUMMARY AND ACTION REQUESTED: At the request of the Mayor, the Finance Department has been asked to seek an independent Financial analysis specific to the City of Lake Elmo Enterprise Funds and the impact that Growth will have upon those funds. In addition, it is requested to outline the potential impact to taxpayers. The City Council is requested to approve entering into a consulting agreement to have those services provided as soon as possible. BACKGROUND INFORMATION (SWOT): In 2012, the City of Lake Elmo entered into a contract with Northland Securities to provide Financial Planning Services/Analysis, specific to the Enterprise Funds. A detailed report was prepared and presented to the Lake Elmo City Council on February 28, 2013. (Copy attached). Since that time, the City Finance Committee and Finance Department have developed an extensive replacement model which has grown into a very cumbersome tool. With the downtown project recently having received municipal consent approval to proceed, sufficient analysis needs to be provided to the Council to clearly understand the impacts of various components of expansion and build outs and their impact on the Enterprise funds, individually and as a whole, as well as any impact to the taxpayers (General Fund). --page 1 -- City Council Meeting [Regular Agenda Item 18J k February 24,2015 i The project scope would include the following: • An independent review of the City Finance Committee's Pro Forma Model t • A specific financing plan for storm water projects that includes financing through a combination of using 20% of the Storm Water Utility fund balance and the balance financed through general property tax revenue • The creation of a special storm water district in the downtown and an overview of specific functionality • Identify the pace of growth needed to cash flow the enterprise fiends • Identify the earliest possible year that the water rates could be lowered and the impact that doing so may have upon the water conservation initiative in the market place Strengths An independent analysis will provide the Council with a clear picture of I the impact to the funds and will remove any bias at all levels of review. An independent analyst will provide viewpoints that might not otherwise be discussed. ! Weaknesses An RFP would be the typical way to handle; however with the Downtown project very close, time is of the essence. With Northland as our bonding agent and EDA advisor, there may be a perception of bias. C Opportunities With Northland as our bonding agent and EDA advisor, Northland is very familiar with Lake Elmo and the planned growth to date and envisioned for the future, thereby being best situated to provide advice to the Council. Having prepared a similar analysis in 2012/2013, this option appears to be the most timely alternative for producing results for Council. Threats There are no identified threats. RECOMMENDATION: The City Council is requested to approve the attached Financial Planning Agreement between the City of Lake Elmo and Northland Securities for an amount not to exceed $5,000 for the purpose of providing Financial Analysis to the City of Lake Elmo. € f "Move to approve hiring Northland Securities Inc. to provide Financial Analysis Services to � the City of Lake Elmo for an amount not to exceed 55,000.00': ATTACHMENT: 1) Northland Strategies Special Project Group report dated February 28, 2013 2) Northland Securities Financial Planning/Analysis Agreement F I 4 . --page 2-- r IA 4) V i tlf W o _ Q O LL. w C Q = Q M �? I-- Q a 4! cc N x O o z a Ei- r.i ccZES — o M O v I o V -o to '— L� C1 � c � 0 V f L q q � r4r4m Ulrrr, MGo0NM # # # « zzz \0 \0 = = o r4m | / | | ) \ ) ( \ ( ( 7 ( ) m » � \ \ } \ } ( a : � : | 7 | ! m) ( �/ / 10 ! 3 ® � (a§ \ : _ _ ! 2 ! | C ! a % ! 2 Aa ) $ ( | 7 : o0 | % o | $ t2 ! s ! | \ \ cu 2 »3 ! a = : C ! gym@ tt S : u : } o \ \ 5 \ % ( ) E ! 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Ln o v rn N 3 a Z a � in r-Ii a 40 a Ln o tA V Ln M C ..� D 0 L v C ,4 v Z O N M 00 N (Y1 O O O N N O O O O O O O O O O O O O O I� LD In 14, M N H W o ,... o H � �y p ern 0 00 E o N O U N N d C) W v1 - +_ Z N +U Q CD v v vi N vi W N 4-- c i r � Q !B Ln +J 4J z = s � 00o � � o � E z00 W L x LL N O 0 ~ z FINANCIAL PLANNING AGREEMENT BY AND BETWEEN THE CITY OF LAKE ELMO,MINNESOTA AND NORTHLAND SECURITIES,INC. FINANCIAL PLANNING SERVICES This Agreement made and entered into by and between the City of Lake Elmo, Minnesota (hereinafter "City") and Northland Securities, Inc., of Minneapolis, Minnesota (hereinafter "NSI" WITNESSETH WHEREAS, the City desires to use the services of NSI for financial planning for the City's water, sanitary sewer, and storm water utility systems, including, review of user charges and rates(hereinafter "Project"). WHEREAS,NSI desires to furnish services to the City as hereinafter described, NOW,THEREFORE, it is agreed by and between the parties as follows: SERVICES TO BE PROVIDED BY NSI The scope of work to be performed by NSI is based on the following Factors, as defined by the City: 1. User charges for water, sanitary sewer, and storm sewer service need to be reviewed to ensure adequate operating revenues and reserves are maintained. 2. The analysis of user charges must consider current and future capital improvements. 3. City is seeking an independent review of the City Finance Committee's pro forma model for the enterprise funds. 4. City is seeking a specific financing plan for stormwater projects that includes a combination of use of 20%of the Storm Water Utility and the balance from general property tax revenue. 5. City is considering the creation of a special storm water district in the downtown and seeks to understand how the district would operate. 6. City is seeking to understand the pace of growth needed to cash flow the City enterprise funds. 7. City desires to understand the potential for lowering water rates in the future. Service Agreement—Financial Planning Services Page 1 NSI will undertake the following Tasks: 1. Conduct kick off meeting with City Staff to review project objectives, set meeting schedule and collect background data. 2. Review background information about water, sanitary sewer, and storm sewer utilities. The City has the responsibility for collecting and providing NSI with information needed to conduct the study. Information sought by NSI includes: a. City Finance Committee's pro forma model for enterprise funds. b. Annual financial statements for utility funds for years 2012 and 2013. c. Operating budgets for 2013, 2014, and 2015. d. Current user rate schedules. e. Water system operating data including number of customers,by type, and quantity of water sold in 2012 through 2014. f. Sanitary sewer system operating data including number of customers,by type, and basis for sewer billing in 2012 through 2014. g. Storm sewer system operating data including number of customers,by type,and basis for storm sewer billing in 2012 through 2014. h. Plans for capital improvements in years 2015 through 2019 (and future years if available)including type of improvement,estimated cost, funding source, and timing. 3. Update financial model for sanitary sewer,water,and storm sewer systems. NSI will update spreadsheets that model the unique characteristics of the City's utility systems. Pace of growth will be analyzed and assumptions for future growth defined. The model will be used to analyze and explain the implications of alternative user charge structures. At a minimum, the model will analyze changes in: operating expenses; system usage; customers;capital improvements;and funding options. 4. Review results. NSI will meet with the City to review results of the analysis. 5. Report initial findings and recommendations. NSI will prepare a report that explains the results of the analysis in Tasks 3-4 and addresses each of the services to be provided (Factors 1-7)by NSI. The report shall include a recommended course of action. This scope of work includes up to two(2) meetings with the City to review results. COMPENSATION For the services specified, NSI will be paid an amount not to exceed $5,000. The amount is based on the estimated number of hours required to complete these tasks at an hourly billing rate of $185/hour plus reimbursable expenses for travel, printing, and mailing. NSI will bill on a monthly basis for actual services performed and reimbursable expenses. ASSIGINED NORTHLAND EMPLOYEE The NSI employee responsible for providing services pursuant to this agreement and for the services performed is Tammy Omdal. Service Agreement—Financial Planning Services Page 2 SUCCESSORS OR ASSIGNS The terms and provisions of this Agreement are binding upon and inure to the benefit of the City and NSI and their successors or assigns. DISCLAIMER In performing service under this agreement, NSI is relying on the accuracy of information provided by the City and the services provided by Northland are based on current State Law. The parties agree that the Minnesota property tax system and other laws may change and may affect the accuracy and validity of services provided by NSI. NSI will perform its work using the best available information. The City recognizes and accepts that future property values, tax levies and tax rates may vary from the assumptions used by NSI and such changes may affect the work product produced and provided by NSI. TERM OF THIS AGREEMENT This Agreement may be terminated by thirty (30) days written notice by either the City or NSI. In the event of early termination by the City, NSI shall provide the City with an itemized hourly statement of services already provided. All billable hours by NSI shall be billed at the stated hourly rates should early termination occur. Dated this_day of February,2015. Northland Securit' s,Inc. By: T m Omdal e ce President City o ake Elmo,Minnesota By: City Administrator Service Agreement-Financial Planning Services Page 01 Tt1G CITY OP LAKE ELMO MAYOR & COUNCIL COMMUNICATION DATE: February 24,2015 REGULAR ITEM#: 19 AGENDA ITEM: Proposed Ordinance Amending 97.21 Watercraft and Water Surface Regulations SUBMITTED BY: Dean Zuleger, City Administrator at the request of Council Member Justin Bloyer THROUGH: Mayor Mike Pearson REVIEWED BY: Dean Zuleger, City Administrator SUGGESTED ORDER OF BUSINESS: - Introduction of Item..........................................................................City Administrator - Report/Presentation................................................City Administrator - Questions from Council to Staff.........................................................Mayor Facilitates - Public Comment ................................................................................Mayor Facilitates - Call for Motion...........................................................................Mayor& City Council Discussion...................................................................................Mayor& City Council - Action on Motion................................................................................Mayor Facilitates SUMMARY AND ACTION REQUESTED: To approve amendments to City Ordinances regulating watercraft regulations (ss 97.21 (2) ), to lower the no wake level on Olson Lake and Lake Demontreville from a negotiated 929.7 to the recognized MNDNR Ordinary High Water level of 929.3. FISCAL IMPACT TO CITY: TBD. Cost of study to determine the ecological / economic impacts that provide a "credible reason" for reducing the negotiated no wake level of 929.7 to the MNDNR OHW of 929.3 BACKGROUND INFORMATION: In 2013, the City of Lake Elmo amended its City Ordinances regulating water craft and water surface regulations and submitted the changes to the MNDNR, which approved the ordinance on July 3,2014. (See Attached Ordinance) STAFF REPORT: In 2007, the VBWD constructed Project 1007, that placed a weir drain in Olson Lake that drain to a series of ponds and pipes to alleviate high water levels and prevent ecological/ econonuc impact. Prior to 2007, the MNDNR Ordinary High Water Level for this lake system was 930.0. After the weir was constructed, the Ordinary High Water level was reset at 929.3. The Ordinary High Water Level is generally considered the level were terrestrial plants meet the aquatic plant level on a lake shore (see attached diagram). In a --page 1 -- City Council Meeting (Regular Agenda Item#17) February 24,2015 plurality of lakes researched over the last three years that have some form of no wake restriction, there is no standard or formulaic way to establish a no wake level,but admittedly many lakes default to the OHW for uniformity purpose. In conversations with MNDNR staff there seems to be little objection to using the OHW as a no wake trigger. During the summer of 2011, the Olson/Demontreville lake complex experienced high waters that caused the City Council to construct an emergency no wake level of 929.7 using a simple formula of halving the pre-2007 OHW and the post-2007 OHW. The issue was fraught with emotion due to the expediency in which the issue was handled. In the winter of 2012, staff worked with the MNDNR to craft an ordinance that would meet with all party's approval to establish a negotiated no wake level of 929.7 on Olsen Lake and Lake Demontreville. Specifically, MNDNR did not want to specify a specific elevation level for no wake imposition on Lake Olson and Lake Demontreville and they wished to make the City Code consistent with MN Statute 86 — governing motorized water craft operation. After several months of MNDNR review and text changes, staff brought a draft ordinance to the City Council for their review on June 5, 2012. At this time several lake shore residents expressed their dislike for the draft as they felt that the statutory norming that took place defeated the intent and purpose of the ordinance. It was agreed that the City Administrator and members of the Tri-Lakes association would meet with MNDNR officials to discuss specific concerns about lake elevation levels and a provision of state statutes that creates a slow, no wake speed for personal watercraft within 150 feet of shoreline. A delegation from Lake Elmo consisting of Mayor Dean Johnston, Administrator Dean Zuleger, Tri- Lakes President Justin Bloyer and Lake Olson Association President Roger Johnson met with MNDNR's Kim Elverum,Boat&Water Safety Coordinator,to broker a compromise and clarify whether MN Statute 86 had preemption over local ordinances. At this meeting, it was agreed that if MNDNR technical staff agreed to the specific lake level definition of 929.7, the ordinance passed in July 2011 could stand permanently. The City Administrator spoke with MDNR technical staff (Schodeen) who had no objections to a pre-determined no wake level of 929.7. Appropriate changes were made to the ordinance and were reviewed by Mr. Roger Johnson, Mr. Justin Bloyer and Mayor Dean Johnson for approval prior to final drafting. In July of 2012, the City of Lake Elmo and affected land owners residing on the shores of Lake Olson, Lake Demontreville and Lake Jane crafted an amendment to current city code that would regulate the use of three lakes in the area known as the Tri-Lake area of the City of Lake Elmo. After considerable debate, the parties reached a consensus on three main areas—with the item germane to this discussion being: 1. A slow, no wake speed condition be set if the lake level of 929.7 feet above sea level is exceeded for five consecutive days for Lake Olson and Lake Demontreville; The City Council adopted these changes in July 2012, but the issue has been continually fraught with anxiety as lakeshore owners wrestle with the important issues regarding, what is essentially, their backyard. Efforts over the years to determine the appropriate wake related use (especially time restrictions) have resulted in neighborhood surveys, long deliberations by the respective homeowner's associations, and exploration of additional changes that include but are not limited to eliminating wake on the lakes altogether. In the March of 2013,two City Council Members requested that the City's current lake use ordinances be modified yet again to create an expansion of use allowed under MNDNR statutes for the purpose of more --page 2-- City Council Meeting (Regular Agenda Item#17) February 24,2015 hours for wake creation a better ability to enforce proper use, and to allow additional time for lakeshore owners to use their"backyard" before the lakes are congested via use by the general public. The request came late at the March 5`"City Council Meeting. In May 2013, a lengthy public hearing was held on the changes where a 5-0 vote was taken by the City Council to change the ordinance. City Staff prepared the ordinance with corroborating data and submitted the ordinance for MNDNR review. After several modifications to comply with MNDNR regulations were made, the MNDNR (July 2, 2013 — see attached) approved the ordinance (see attached) for implementation. During this time a no wake restriction was placed on Olsen Lake & Lake Demontreville for one week in the spirit of the understanding between the negotiating no wake level. In the Spring / Summer 2014, due to large spring rains and the drainage of Long Lake, Olson Lake and Lake Demontreville exceeded the negotiated no wake level of 929.7 for a two different time periods that totaled 31 days with City staff checking the water level almost every day from May 1"to July 140'. (See attached Olson/Tri Lakes Level Data). Staff observed during this review period that the weir begins to strenuously drain the lake and pump into an adjoining pond at the MNDNR OHW of 929.3. On February 12, 2015, at a Council Member's request, the City Administrator inquired of Mr. Stan Linnell, MNDNR Boating and Water Safety Manager, about what would be needed to reduce the no wake level on Olson Lake and Lake Demontreville from the negotiated 929.7 to the MNDNR OHW level of 929.3. Mr. Linnell noted that the MDNR would ideally need to see "data of ecological / environmental impact" before they would consider a change and that data should come in a form of a study. The City Administrator has inquired with two water resource consulting fines on the"what and how"the gathering of this data would entail and what the cost might be. As of the writing of this memo, no cost information has been received at this time. On February 19, 2015, Mr. Linnell, noted (after conversations with members of the City Council, VBWD, and citizen advocates) that while ideally a study would be preferable, the MNDNR would need to minimally see a "credible, documented reason" to reduce the level. (See Linnell Email 2-19-2015). Per the MNDNR, a formal public hearing is requested to provide public comment on the proposed change in elevation. The soonest a public hearing could be held is March 17,2015. ORDINANCE CONSTRUCTION If the Council pleases,the ordinance would change to read as followed: (2) High water conditions. No person shall operate any motorboat at greater than a slow, no-wake speed as defined by M.S. § 8613.005 whenever the lake level of Lakes Olson and Demontreville is above 929.3 feet above sea level (MSL), the Ordinary High Water Level (OHWL) as defined by M.S. 103G.005 and set by the MN Department of Natural Resources. This restriction will remain in effect until the water level drops below 929.3 feet the OHWL as set by the MN Department of Natural Resources, and remains there for 3 consecutive days. KEY ISSUES During the course of the analysis,three main issues rise to the top of consideration: --page 3 -- City Council Meeting (Regular Agenda Item#17) February 24,2015 1. The weir constructed by the Valley Branch Water Shed District in 2007 begins to aggressively drain the lake at the MNDNR OHW of 929.3 (observable by staff over the last two summers); 2. The City has not experienced a full normal season of boat use since the enactment of the 2013 ordinance change — with 2014 high water levels being compounded by a plugged drain pipe upstream at Long Lake; 3. It appears the MNDNR may request additional ecological / economic data that shows positive impact of lowering the no wake from 929.7 to 929.3. This data has been categorized as "a credible,reason"to make the change.Other than third party information on 2014 damage the City does not have a way to provide that"reason"at this time. RECOMMENDATION: Based upon the background information, a review of key issues, discussion with MNDNR staff, discussion with lake shore owners, staff does not have a recommendation at this time without more information (a normal season of operation and study of the water level effect on terrestrial plants/shore erosion)on the impacts of the level change. However, if the Council wishes to change the level to the MNDNR OHW to create a formulaic approach to no wake enforcement,the motion would read: "Move to call for a public hearing on March 17,2015, to receive public comment on whether to amend 97.21 of the City Code regulating watercraft and water surface regulations to technically change the no wake level on Olson Lake and Lake Demontreville from the negotiated level of 929.7 to the MNDNR OHW of 929.3 with all other ordinance language staying intact." ATTACHMENTS: Current Ordinance MNDNR Approval Lake Level Report OHW Technical Drawing Linnell Email of 2-17-2015 --page 4-- CITY OF LAKE ELMO COUNTY OF WASHINGTON j STATE OF MINNESOTA ORDINANCE NO. 08-074 AN ORDINANCE AMENDING THE PARKS AND RECREATION CHAPTER OF THE LAKE ELMO CITY CODE OF ORDINANCES GOVERNING WATER SURFACE USE Section 1. The City Council of the City of Lake Elmo hereby ordains that Chapter 97: Parks and Recreation, of the City Code is hereby amended in the following manner: i WATER SURFACE USE i § 97.20 PURPOSE. f The purpose of§§ 97.20 et seq. is to establish the rules governing the use of the lake surfaces within the city. It is the intent of§§ 97.20 et seq. to promote the health, safety, welfare, and well-being of all, and to define the standards of behavior expected for all water users. I! (1997 Code, § 1380.01) i 1 § 97.21 WATERCRAFT AND WATER SURFACE USE REGULATIONS. The following regulations shall apply to the use of watercraft on lakes entirely within the city limits, to the use of a lake entirely within the city limits, and to the use of ice surfaces on lakes entirely within i the city limits. (A) Dumping. No person shall dump or throw garbage,paper,bottles,cans, refuse, or debris into any lake or on the shore of any lake or in any public area around any lake in the city. (B) Hours of operation. (1) Normal conditions. No person shall operate any motorboat at a speed greater than a slow, no-wake speed as defined by M.S. § 8613.005 in the following manner: a. Lake Elmo—between sunset and noon the following day, seven days a week b. Olson Lake, Lake Demontreville and Lake Jane—between sunset and sunrise, Monday through Friday; and between sunset and 9AM on weekends and holidays c. All other lakes within the jurisdictional boundaries of the City of Lake Elmo— between sunset and noon, seven days a week- (2) High water conditions. No person shall operate any motorboat at greater than a slow, no- wake speed as defined by M.S. § 8613.005 whenever the lake level of Lakes Olson and Demontreville is above 929.7 feet above sea level (MSL). This restriction will remain in effect until the water level drops below 929.7 feet, and remains there for three consecutive days. No person shall operate any motorboat at greater than slow,no-wake speed as defined by M.S. 8613.005 whenever the lake level of ! 1 III i Lake Jane is above 924.0 feet above sea level (MSL). This restriction shall remain in effect until the water level drops below 924.0 and remains there for three consecutive days. f t 1 (C) Operating regulations. No person shall operate any watercraft in violation of the provisions of this code, or in violation of the provisions of M.S. Chapter 86B or Minnesota Boat and Water Safety Rules (6110.0100-6110.2300)which statutes and rules are hereby adopted and incorporated herein. (D) Buoys. No person shall place a buoy or structure on a lake overnight unless the buoy is specifically authorized by the Washington County Sheriff.No buoy or structure, other than shallow water marking or channel buoys shall be left overnight or placed contrary to MN Water Safety Rules j 6110.1800. 1 (E) Operation. All motorboats, operating in excess of a slow,no-wake speed shall operate in a counter clockwise direction on all City of Lake Elmo lakes seven days a week. Personal watercraft use is governed by M.S. 86b.313. l (F) Non-public lake access. No person, except riparian owners, shall launch a watercraft or gain access to or egress from a lake other than at a designated public access point except in the case of any emergency or except with the written permission of the riparian lot owner. A person who has written permission to launch a watercraft from a riparian lot shall park their vehicle(s) and trailers) on the lot of the riparian owner. Riparian lot owners who grant permission to use their property as a launch site shall otherwise comply with all of the land use regulations of the city. II f (G) Public launching areas. Except as noted in division(F) no person shall launch a watercraft or gain access to or egress from a lake except from a public right-of-way or other public park area in those locations specifically designated and posted for the purpose. (H) Non-motorized carry-on access. A person may access any public waters through public land with a hand-carried non-motorized watercraft in accordance with M.S. § 86B.201, Subd. 3. (1) Safe operating distance. (1) No person shall operate or permit the operation of a personal watercraft per M.S.§ 86B.313, in excess of slow,no-wake speed, within 150 feet of a shoreline. (2) Launching or landing a personal watercraft or towing a person on skis or other devices must be done by using the most direct route to or from open water. j (J) Non-motorized watercraft. A non-motorized watercraft has the right-of-way over motor- powered watercraft except when it is the overtaking watercraft. Motor-powered watercraft should always keep clear and pass astern on non-motorized watercraft(Minn. Rule 6110.1200, Sub. 1, D). (1997 Code, § 1380.03) (K) Permanent "slow-no wake: areas. The channels and narrows between Lake Olson and Lake Demontreville are hereby designated as permanent"slow- no wake" areas and appropriate signs or buoys meeting the specifications found in Minn. Rules 6110,1500 shall be posted. i 2 E E E (Am. Ord. 97-150, passed 3-1-2005; Am. Ord. 08-014, passed 5-19-2009; Am. Ord. 08-050,passed 7- ! 19-2011; Am. Ord. 08-50, passed 11-1-2011; Am. Ord. 2012-58,passed 7-17-2012) Penalty, see 10.99 E 4 f § 97.22 WINTER LAKE USE REGULATIONS. (A) Dumping. No person shall dump or throw garbage, paper,bottles,cans,refuse, or debris into the ice of a lake or into any lake or on the shore of any lake or in any public area around any lake in the city. I (B) Clean-up. Ice house owners are responsible for clean-up of trash within 25 feet of the house, (C) Emergency access. No person shall gain access to or egress from the ice of a lake other than at a designated public access point except in the case of emergencies or except with the written permission of a riparian lot owner. Persons who have written permission to access or egress the lake from a riparian lot shall park their vehicles and trailers on the lot of the riparian owner. Riparian lot owners who grant permission to use their riparian property for access to or egress from a lake shall otherwise comply with all land use regulations of the city. j (D) Ice frshing holes. No person shall leave holes in the lake larger than 1 foot in diameter unless the holes are visibly marked for day and night. (E) Size of ice fishing house. No person shall place an ice house larger than what is allowed by Minnesota State Statutes and is regulated by the fish and game authority. i (F) Fires. No person shall have an open fire on the ice surface of a lake. i (1997 Code, § 1380.04) Penalty, § 10.99 I § 97.23 PROHIBITED STRUCTURES AND USES. (A) Lake activities. Motorboat races are prohibited. Fishing tournaments, ski jumps, slalom courses, or other competition or exhibition events are allowed only as specifically authorized by state statutes and rules, the Washington County Sheriff Department. The City Clerk shall acknowledge by signature all lake activities authorized prior to any authorized event or installation of ski jumps or slalom courses for the purpose of public information dissemination. i (B) Fee for lake use. Unless specifically authorized by the Council, and unless consistent with the city's zoning regulations, no riparian lot owner shall offer the use of their property for a fee or other consideration: (1) As ingress or egress to a lake; (2) For watercraft rental; (3) For swimming, skiing, or watercraft lessons,unless provided by a non-profit or water safety agency for the purpose of basic instructions; I 3 I 1 i 1 (4) For a watercraft launch site; and/or i (5) For any ancillary water or ice related use. (1997 Code, § 1380,06) (Am. Ord. 2012-58,passed 7-17-2012) Penal , see § 10.99 § 97.24 ENFORCEMENT. (A) Local Enforcement. Pursuant to MN § 378.32, 459.20, the City of Lake Elmo assigns by service agreement the enforcement of Chapter 97.20-97.23 of the City Code to the Washington County Sheriff's Department. i (B) Penalties. Penalties for non-compliance shall be governed by § 10.99 of the City Code and I prosecuted by the City of Lake Elmo Attorney. (C) Exemptions. Government agencies engaged in resource management, emergency services or I enforcement activities are exempt from the provisions of Chapter 97 when acting in the performance of their assigned duties. i 97.25 REVIEW. (A) The Lake Elmo City Council, upon request, shall review the effect of surface water use ordinances on the quality of life,water quality (including clarity), and lake use safety prior to "ice out"or the beginning of normal lake use season. The Lake Elmo City Council shall consult with MnDNR, University of Minnesota Extension, and the Washington County Sheriff's Department as a part of this review. Section 2. Adoption Date. This ordinance shall become effective immediately upon adoption and publication in the official newspaper of the City of Lake Elmo. This Ordinance No. 08-074 was adopted on this _ day of ��"ys; �,�" . ' 2U13, by a vote of Ayes and t�Nays. Mike Pearson Mayor ATTEST: Adam Bell City Clerk This Ordinance No. 08-074 was published on the 1.+�_day of ° � yea n 9_ 2013. 4 Olson Lake June 15 929.72 June 16 929.74 i June 17 929.85 June 19 930.11 4 June 20 929.11 E June 21 over gauge -carriage bolt } June 22 over gauge-3" from top of board June 23 930.36 June 26 930.83 i June 27 930.66 i June 28 930.69 June 29 930.61 i July 3 930.37 July 7 929.66 July 8 929.68 July 9 929.65 i i i I � I i I n w N rn O i Ol Date v, W 5-Jan-12 988.03 24-Feb-12 987.78 16-Mar-12 988.11 4-Apr-12 988.29 20-Apr-12 988.38 3-May-12 988.55 18-May-12 988.71 31-May-12 989.10 15-Jun-12 988.91 28-1un-12 988.98 i 10-Jul-12 988.78 24-Jul-12 988.87 9-Aug-12 988.64 23-Aug-12 988.40 6-Se -12 988.15 20-Sep-12 987.92 !(I 3-Oct-12 987.75 18-Oct-12 987.58 31-Oct-12 987.57 IlI 14-Nov-12 987.56 I 10-Jan-13 986.45 18-Jan-13 987.28 28-Feb-13 987.53 26-Apr-13 988.81 8-May-13 989.03 22-May-13 989.28 4-Jun-13 989.22 I 20-Jun-13 989.26 27-Jun-13 989.78 2-Jul-13 989.64 11-Jul-13 989.33 15-Jul-13 989.25 25-Jul-13 988.99 1-Aug-13 988.86 15-Aug-13 988.7 29-Aug-13 988.45 12-Sep-13 968.19 26-Sep-13 986.09 11-Oct-13 988.11 24-Oct-13 988.12 5-Nov-13 988.06 29-Apr-14 989.48 16-May-14 989.41 20-May-14 989.54 28-May-14 989.46 3-Jun-14 989.74 i Monthly Change 0.30 Yearly Change 0.52 Discharge Elevation 988.51 Depth Over Outlet 1.23 VALLEY BRANCH WATER LEVELS DATE LONG 0-0 JANE SUNFISF EAGLE ELMO HORSE- DOWNS SILVER GRAVEL WLSS POINT SHOE LAKE PIT LOWER 2009 1/1 936.18 927.23 920.58 883.43 872.65 884.94 211 935.92 926.96 920.55 883.44 872.45 884.74 3/1 935.81 927.02 920.62 883.48 872.43 884.64 4/-1 936.82 927.13 920.73 883.58 872.58 887.91 5/1 936.60 927.09 920.53 883.49 872.24 887.39 6/1 936.03 926.68 920.11 882.94 871.61 886.89 7/1 935.84 926.30 919.91 882.82 $71.22 886.69 8/1 935.48 925.91 919.61 882.58 870.71 886.06 911 936.66 926.97 919.74 882.70 870.66 886.28 10/1 935.90 925.53 919.36 882.34 870.14 886.74 1111 937.34 925.89 919.81 882.65 871.53 885.86 1211 937.12 925.45 919.76 882.69 871.04 886.04 2010 1/1 937.08 925.67 919.96 882.72 871.14 886.14 2/1 936.67 925.58 919.91 3/1 936.45 925.49 919.86 4/1 937.35 925.50 919.90 882.66 871.05 885.85 511 937.31 925.35 919.87 888.86 882.64 868.70 884.82 611 937.49 925.38 919.87 888.75 882.60 868.50 884.60 7/1 938.46 925.70 920.00 888.75 882.66 868.48 884.50 8/1 937.62 926.05 919.91 888.54 882.62 868.46 884.37 9/1 937.35 926.08 919.85 888.49 882.56 868.56 884.59 10/1 938.62 926.46 920.02 888.74 882.70 868.86 884.57 11/1 937.78 926.56 919.79 888.54 882.60 868.84 884.37 1211 937.74 926.52 919.79 2011 4/1 939.14 927.79 920.26 894.46 883.68 871.78 886.16 5/1 940.07 929.14 920.67 889.62 894.58 883.53 872.68 885.42 6/1 938.99 929.22 920.77 889.78 894.55 883.76 874.79 885.32 7/1 938.77 929.30 920.99 890.00 894.-76 884.04 875.63 885.22 899.10 8/1 940.86 929.34 922.11 896.76 884.81 875.78 989.48 866.68 9/1 939.68 929.09 922.20 890.90 896.08 885.06 875.73 887.61 989.07 866.77 862.16 10/1 937.60 928.70 921.85 890.78 894.23 884.26 875.53 887.04 988.51 865.14 860.68 10128 937.15 928.40 921.65 890.74 893.83 884.26 874.98 687.06 858.28 12/1 937.06 928.16 921.53 893.13 8B4.23 874.59 2012 4/1 937.53 928.25 921.80 893.73 B84.31 875.62 988.29 862.45 5/1 937.40 928.25 921.67 891.78 893.60 884.33 876.48 886.56 988.55 865.56 857.78 611 938.36 929.03 921.94 892.24 894.35 884.36 875.70 886.32 989.22 865.70 861.00 711 937.75 928.97 921.87 892.24 894.25 884,21 875.43 886.16 989.64 864.93 8/1 937.26 928.83 921.72 891.92 894.04 884.22 874.78 885.72 988.08 9/1 936.32 928.35 921.33 891.68 893.25 883.89 873.86 865.41 988.15 10/1 935.60 927.69 920.87 891.00 893.21 683.65 873.00 884.66 937.75 11/1 935.58 927.45 920.74 890.88 883.61 872.90 12/1 935.60 927.27 920.74 890.56 883.11 872.90 884.50 2013 511 938.42 920.11 921.63 894.35 874.93 989.03 611 939.20 928.92 921.79 894.27 884.37 875.77 887.44 989.22 711 941.67 929.75 922.56 892.59 896.93 884.98 875.87 890.24 989.64 866.15 862.18 B/1 939.60 929.07 922.09 894.55 884.20 875.88 889.46 989.86 866.01 861.68 9/1 937.64 928.80 921.67 893.78 884.04 874.68 888.57 988.19 858.13 10/1 936.39 928.41 921.39 891.53 893.63 883.94 873.82 887.94 988.11 11/1 936.18 928.32 921.41 891.75 893.57 884.14 873.40 887.64 988.06 11120 935.72 928.17 921.41 891.75 893.67 884.18 873.48 887.62 2014 5/1 940.52 929.18 922.11 896.02 884.60 875.54 889.51 6/1 941.76 929.71 922.55 895.88 884.58 876.08 890.58 866.54 863.00 Month Jiff. 1.24 0.53 0.44 -0.14 -0.02 0.54 1.07 Year Diff. 2.56 0.79 0.76 1.61 0.21 0.31 3.14 Overflow 937.50 928.35 92.2.35 927.80 894.00 884.10 875.20 89150 Minnesota Department of Natural Resources Minnesota 500 Lafayette Road • St. Paul,MN • 55155-40 DEPARTMENT OF NATURAL RESOURCES July 2, 2013 Mr. Dean Zuleger, City Administrator City of Lake Elmo 3800 Laverne Avenue N. Lake Elmo, Minnesota 55042 The State Boating Law Administrator has received your materials requesting approval of your water surface use ordinance. The Department of Natural Resources (DNR) hopes to complete the review of these materials and have a decision back to the city by the end of July. However, should an EAW be required,the time frame could be much longer. You have informed us that water levels on Lake Demontreville and Lake Olson have recently been above the high water level,slow no wake zone proposed in your ordinance 08-074. Motorboat wakes during high water periods may cause erosion, lake sedimentation and property damage. Due to the urgency around these facts, the State Boating Law Administrator has evaluated additional temporary approval of this item. After review,the high water,slow no wake zone portion of your ordinance appears to be a measured and reasonable action to the current and potential future conditions. The DNR approves the slow no wake elevation of 929.7 and above for Lake Demontreville and Lake Olson without the inclusion of the five day waiting period before implementation, but retaining the five day period after the water recedes below 929.7. Please post notices at public access sites and on the city web site at times when the restriction is in effect and when it has ended. This approval is valid only until October 31, 2013. Continue your work with the department to establish a permanent approved ordinance. Sincerely, COL Ken Soring, Director Enforcement Division cc: CAPT Greg Salo—DNR Region 3 Enforcement Manager LT Jason Peterson—DNR District 14 Enforcement Supervisor CMDR Jerry Cusick—Washington County Sheriff's Office Rachel Hintzman, Area PAT Supervisor WSUM File wwv,i.d n r.sta te.m n.us AN EQUAL OPPORTUNITY EMPLOYER ®0 PRINTED ON RECYCLED PAPER CONTAINING A MINIMUM OF 10%POST CONSUMER WASTE 0 JYW L I Introduction Minnesota Statutes, Section 103G.005, subdivision 14 defines "ordinary high water level" (OHWL) as the boundary of waterbasins, watercourses, public waters, and wetlands and: (1) the OHWL is an elevation delineating the HIGHEST water level that has been maintained for a sufficient period of time to leave evidence upon the landscape, commonly the point where the natural vegetation changes from predominantly aquatic to predominantly terrestrial; (2) for watercourses, the OHWL is the elevation of the top of the bank of the channel; and i (3) for reservoirs and flowages, the OHWL is the operating elevation of the normal summer pool. `The OHWL is the landward extent of DNR jurisdiction over !yogi w�io Woo§in=the_t56&. ':pablrc waters o public waters wetlands (collectively referred to as public waters) - see Figure 1. It is commonly used in public waters work permits and by local zoning authorities to deter- mine lot size, structure setback, and drainfield location and elevation _ �t -.: 0TRP ; tyr1t%Te tlon- eragwl-ry raeveI; e eme iaigh water level, oFa arbitrary elevation set by an. ��rdi�a�f`�opp�or_agency. - i fit`has norgnifrcancewrth respect o private ownership, Terrestrial (Upland) Vegetation (grasses, brush, trees) Aquatic Vegetation (giant reed grass, sedge, giant burreed, bulrush, cattail) Ordinary High f _ � Level __ __ _-------- d _ Water -- / Avera e Water Level Record High 9 Water Level - B�'d Record Low of Water Level BaS�� f FIGURE 1 i Note:The vegetation types identified above are common examples,but are not all inclusive. xr -- Dean Zuleger From: Linnell, Stan J (DNR) <stan.linnell@state.mn.us> Sent: Thursday, February 19, 2015 11;48 AM To: Dean Zuleger Cc: Bergsrud, Margaret (DNR) Subject: Lake Demontreville and Olson Proposed New slow no wake trigger elev. Dean, My understanding is that there is a proposal to lower the slow no—wake trigger elevation to the ordinary high water level. In order to change the elevation that triggers slow no-wake to go into effect,the following will be required: 1. Letter of intent stating why the change is needed/provide reasoning such as: it has been found that environmental damage occurred or would occur at the current trigger elevation that would be reduced or eliminated at the proposed elevation. Provide any photos, reports, or testimony that support the , reasoning. Ideally we would have a study, including photos,showing the elevation where environmental damage i becomes a significant concern. If the city were proposing to raise the elevation from the current trigger, a study I would become more critical. Note that using the OHW elevation as the trigger is commonly done. 2. Hold a public hearing and provide us with a record of public comments. Include comments received outside of the hearing as well 1 3. Submit an updated water surface use packet. Since your last packet was so recently done, provide updates only I where changes have occurred. Please coordinate all correspondence from this point forward to Margaret Bergsrud at above e-mail or by phone at: 651- 259-5590. Margaret who works in my section, now coordinates water surface use statewide. i i Regards, Sta n Stan Linnell Boating and Water Safety Manager Mn/DNR Parks and Trails Division I stan.linnell c_state.mn.us 651-259-5626 -State Boating Law Administrator Public Water Access Program i Fishing Pier Program 1 Water Trails Program f i i I i 1 N N X fCd G N 'O f0 N ftl O N O O d C � A O C � V w � n L t0.. 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