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Home My WebLink AboutCity Council - 10/01/2002 AGENDA EDEN PRAIRIE CITY COUNCIL WORKSHOP/FORUM TUESDAY,OCTOBER 1,2002 CITY CENTER 4:00-6:25 PM,HERITAGE ROOM II 6:30—7:00 PM,COUNCIL CHAMBER CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Sherry Butcher,Ron Case,David Luse and Jan Mosman CITY STAFF: City Manager Scott Neal,Public Safety Director Jim Clark,Public Works Director Eugene Dietz, Director of Parks and Recreation Bob Lambert,Management and Budget Director Don Uram, City Attorney Ric Rosow, and Recorder Lorene McWaters Heritage Room II I. CALL MEETING TO ORDER H. APPROVAL OF AGENDA III. SECOND HAND-SMOKE IV. OTHER TOPICS Council Chamber V. OPEN FORUM (Scheduled participants,6:30-6:50 p.m.) A. STRONG SCHOOLS CAMPAIGN PRESENTATION VI. OPEN PODIUM(Unscheduled participants, 6:50-7:00 p.m.) VII. ADJOURNMENT 0 2FieCity tf Eden Prairie 8080 Mitchell Road•Eden Prairie,MN 55344-4485•edenprairie.org•952-949-8300•TDD 952-949-8399 Office of the City Manager Memorandum #2002-036 DATE: September 27,2002 TO: Mayor and City Council FROM: Scott H.Neal,City Manager RE: DRAFT Ordinance and DRAFT Resolution As a follow-up to the Council's September 17th Workshop and post-Council meeting discussion concerning the concept of adopting new regulations for smoking in Eden Prairie,the City Attorney and I have drafted a resolution and an ordinance for the Council's review and consideration. Copies of the draft resolution and draft ordinance are enclosed with this memorandum. The Council's discussion on this matter on September 17th was rather wide-ranging. We believe we have accurately portrayed the consensus of the Council in the enclosed documents,but we are open to your editorial comments. 4,6 CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO, 02- RESOLUTION SUPPORTING,ADVOCATING AND URGING THE MINNEOSTA STATE LEGISLATURE TO ENACT A STATE WIDE SMOKE FREE LAW PROHIBITING SMOKING IN PLACES OF EMPLOYMENT AND RESTAURANTS BE IT RESOLVED by the City Council of the City of Eden Prairie, Minnesota (the "City"), as follows: WHEREAS The Eden Prairie City Council does hereby find that: (1) Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution,and that breathing secondhand smoke(also known as environmental tobacco smoke)is a cause of disease in healthy nonsmokers,including heart disease, stroke,respiratory disease,and lung cancer. The U.S. Surgeon General has determined that secondhand smoke is responsible for the early deaths of 65,000 Americans annually. (2) The Public Health Service's National Toxicology Program has listed secondhand smoke as a known carcinogen(U.S.DHHS,2000, citing Cal. EPA, 1997). (3) Secondhand smoke is particularly hazardous to elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function,including asthmatics and those with obstructive airway disease. Children exposed to secondhand smoke have an increased risk of asthma, respiratory infections, sudden infant death syndrome,developmental abnormalities, and cancer. (4) The Americans With Disabilities Act,which requires that disabled persons have access to public places and workplaces, deems impaired respiratory function to be a disability. (5) The U.S. Surgeon General has determined that the simple separation of smokers and nonsmokers within the same air space may reduce,but does not eliminate,the exposure of nonsmokers to secondhand smoke. The Environmental Protection Agency has determined that secondhand smoke cannot be reduced to safe levels in businesses by high rates of ventilation. Air cleaners,which are only capable of filtering the particulate matter and odors in smoke,do not eliminate the known toxins in secondhand smoke. significant amount of secondhand smoke exposure occurs in th� (6) A xp4) workplace. Employees who work in smoke-filled businesses suffer a 2117 50%higher risk of heart attack and higher rates of death from cardiovascular disease and cancer,as well as increased acute respiratory disease and measurable decrease in lung function. (7) Smoke-filled workplaces result in higher worker absenteeism due to respiratory disease, lower productivity,higher cleaning and maintenance costs, increased health insurance rates, and increased liability claims for diseases related to exposure to secondhand smoke. (8) Smoking is a potential cause of fires;cigarette and cigar bums and ash stains on merchandise and fixtures causes economic damage to businesses. WHEREAS, Eden Prairie residents and business community are concerned that the enactment of a local ordinance prohibiting smoking in places of employment and restaurants will have a negative effect on the community's businesses because businesses in adjacent communities will not be subject to the same regulation; WHEREAS,the Eden Prairie City Council has heard from many residents and businesses that a state wide smoke free law is more appropriate than a local ordinance so as to not place at a disadvantage the businesses of this or any other individual community; and WHEREAS the City deems it prudent,reasonable and necessary to support, advocate and urge the passage of state wide legislation(1)to protect the public health and welfare by prohibiting smoking in public places and places of employment; and(2)to guarantee the right of nonsmokers to breathe smoke free air, and to recognize that the need to breathe smoke free air shall have priority over the desire to smoke. NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF EDEN PRAIRIE, MINNESOTA THAT: The City Council hereby supports, advocates and urges the Minnesota State Legislature to enact during the 2003 Legislative Session a law establishing all Minnesota places of employment and restaurants as smoke free. Passed by the City Council this day of October,2002. Nancy Tyra-Lukens,Mayor Attest Kitty Porta,City Clerk * 1 CITY OF EDEN PRAIRIE OA)"1 F 2 HENNEPIN COUNTY, MINNESOTA 3 4 ORDINANCE NO. -2002 5 6 AN ORDINANCE OF THE CITY OF EDEN PRAIRIE, MINNESOTA AMENDING CITY 7 CODE CHAPTER 9 BY ADDING SECTION 9.42; AND ADOPTING BY REFERENCE 8 CITY CODE CHAPTER 1 AND SECTION 9.99 WHICH, AMONG OTHER THINGS, 9 CONTAIN PENALTY PROVISIONS. 10 11 THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE, MINNESOTA, ORDAINS: 12 13 Section 1. City Code Chapter 9 is amended by adding Section 9.42 as follows: 14 15 Section 9.42. Eden Prairie Smokefree Air Ordinance of 2002. This 16 Section shall be known as the Eden Prairie Smokefree Air Ordinance of 17 2002. 18 19 Subd. 1. General Provisions 20 21 A. Findings and Intent. The Eden Prairie City Council does 22 hereby find that: 23 24 (1) Numerous studies have found that tobacco smoke is a major 25 contributor to indoor air pollution, and that breathing 26 secondhand smoke (also known as environmental tobacco 27 smoke) is a cause of disease in healthy nonsmokers, 28 including heart disease, stroke, respiratory disease, and lung 29 cancer. The U.S. Surgeon General has determined that 30 secondhand smoke is responsible for the early deaths of 31 65,000 Americans annually. 32 33 (2) The Public Health Service's National Toxicology Program 34 has listed secondhand smoke as a known carcinogen (U.S. 35 DHHS, 2000, citing Cal. EPA, 1997). 36 37 (3) Secondhand smoke is particularly hazardous to elderly 38 people, individuals with cardiovascular disease, and 39 individuals with impaired respiratory function, including 40 asthmatics and those with obstructive airway disease. 41 Children exposed to secondhand smoke have an increased 1 tsip t. 42 risk of asthma, respiratory infections, sudden infant death 43 syndrome, developmental abnormalities, and cancer. !_ 44 45 (4) The Americans With Disabilities Act, which requires that 46 disabled persons have access to public places and 47 workplaces, deems impaired respiratory function to be a 48 disability. 49 50 (5) The U.S. Surgeon General has determined that the simple si separation of smokers and nonsmokers within the same air 52 space may reduce, but does not eliminate, the exposure of 53 nonsmokers to secondhand smoke. The Environmental 54 Protection Agency has determined that secondhand smoke ss cannot be reduced to safe levels in businesses by high rates 56 of ventilation. Air cleaners, which are only capable of filtering 57 the particulate matter and odors in smoke, do not eliminate 58 the known toxins in secondhand smoke. 59 60 (6) A significant amount of secondhand smoke exposure occurs 61 in the workplace. Employees who work in smoke-filled 62 businesses suffer a 25-50% higher risk of heart attack and 63 higher rates of death from cardiovascular disease and 64 cancer, as well as increased acute respiratory disease and 65 measurable decrease in lung function. 66 67 (7) Smoke-filled workplaces result in higher worker absenteeism 68 due to respiratory disease, lower productivity, higher • 69 cleaning and maintenance costs, increased health insurance 70 rates, and increased liability claims for diseases related to 71 exposure to secondhand smoke. 72 73 (8) Smoking is a potential cause of fires; cigarette and cigar 74 burns and ash stains on merchandise and fixtures causes 75 economic damage to businesses. 76 77 (9) Accordingly, the Eden Prairie City Council finds and declares 78 that the purposes of this ordinance are (1)to protect the 79 public health and welfare by prohibiting smoking in public 80 places and places of employment; and (2)to guarantee the 81 right of nonsmokers to breathe smokefree air, and to 82 recognize that the need to breathe smokefree air shall have 83 priority over the desire to smoke. 2 4 4' 84 85 B. Definitions. For the purpose of this section, the following terms 86 shall have the meanings: 87 88 OPTIONS 1. "City Facilities" means buildings owned or operated by the 89 City, including the outdoor area of the lot or parcel on which 90 the building is situated. 91 92 2. "Parks" means any open or enclosed land and 93 improvements or facility wherever located which is owned, 94 leased or operated by the City and which is reserved, 95 designated or used for a playground, picnic area, garden 96 area, beach, or other recreational or open space area. 97 98 3. "Smoking" means inhaling, exhaling, burning, or carrying any 99 lighted cigar, cigarette, pipe, weed, plant, or other. loo combustible substance in any manner or in any form. 101 102 4. 103 104 Subd. 2. General Restrictions 105 106 A. Prohibition of Smoking in Certain Areas. Smoking is 107 prohibited in the following areas: 108 109 OPTIONS 1. Parks; 110 i11 2. City Facilities; 112. 113 3. Inside motor vehicles owned or operated by the City. 114 115 4. 116 117 B. Where Smoking Not Regulated. Notwithstanding any other 118 provision of this Section to the contrary, the following areas shall be 119 exempt from the provisions of this Section: 120 121 1. City Facilities, or those portions thereof, that are leased to 122 non-City entities or individuals for a period of longer than 24 123 hours; 124 125 2. In designated outdoor areas of City Facilities; and 3 4046 126 127 3. City streets, easements, sidewalks, trails (except trails T 128 adjacent to or within Parks) and paths. 129 130 OPTION C. Posting of Signs 131 132 1. "No Smoking" signs or the international "No Smoking" 133 symbol (consisting of a pictorial representation of a burning 134 cigarette enclosed in a red circle with a red bar across it) 135 shall be clearly and conspicuously posted outside every 136 City Facility and Park. 137 138 2. All ashtrays and other smoking paraphernalia shall be 139 removed from every area where smoking is prohibited 140 under this Section. 141 142 Subd. 3. Enforcement 143 144 A. Complaints. Any citizen who desires to register a complaint 145 under this Section may initiate enforcement with the City Manager 146 or his/her designee. 147 148 B. Violation and Penalty. It shall be a petty misdemeanor for any 149 person to smoke in an area where smoking is prohibited by the 150 provisions of this Section. The fine for violation of this provision 151 shall be $100 plus all surcharges mandated by law. 152 153 C. Other Applicable Laws. This Section shall not be interpreted 154 or construed to permit smoking where it is otherwise restricted by 155 other applicable laws. 156 157 D. Severability. If any provision, clause, sentence, or paragraph of 158 this Section or the application thereof to any person or 159 circumstances shall be held invalid, that invalidity shall not affect 160 the other provisions of this Section which can be given effect 161 without the invalid provision or application, and to this end the 162 provisions of this Section are declared to be severable. 163 164 Section 2. City Code Chapter 1 entitled "General Provisions and Definitions 165 Applicable to the Entire City Code Including Penalty for Violation" 166 and Section 9.99 entitled "Violation a Misdemeanor" are hereby 4 167 adopted in their entirety, by reference, as though repeated ver 168 herein. 169 170 Section 3. This Ordinance shall become effective from and after its passage 171 and publication. 172 173 OPTION [OR] 174 175 This Ordinance shall become effective January 1, 2003. 176 • 177 FIRST READ at a regular meeting of the City Council of the City of Ed- 'Wirie 178 on the day of , 2002, and finally read and adopted and o . d 179 published at a regular meeting of the City Council of said City on the day A> 180 , 2002. 181 182 183 184 185 186 187 City Clerk Mayor 188 189 190 PUBLISHED in the Eden Prairie News on the day of , 2002. 191 192 193 ep\smoking ban\Smoke Free Ordinance.092502 194 195 196 197 198 199 6 Response to Request for Investigation and Questions Posed Regarding •y. Draft Smoke Free Ordinance October 1, 2002 City Attorney Memorandum to Mayor and City Council TABLE OF CONTENTS Response to Request for Investigation and Questions Posed Regarding Draft Smoke Free Ordinance 1. 10/01/02 City Attorney Memorandum to the Mayor and City Council 2. 04/16/02 Excerpt from the Minutes of Eden Prairie City Council Meeting 3. 05/07/02 Excerpt from the Minutes of Eden Prairie City Council Workshop 4. 05/21/02 Excerpt from the Minutes of Eden Prairie City Council Workshop 5. 05/21/02 Excerpt from the Minutes of Eden Prairie City Council Meeting 6. 06/04/02 Excerpt from the Minutes of Eden Prairie City Council Meeting 7. 06/11/02 Excerpt from the Minutes of Eden Prairie City Council Public Meeting 8. 06/18/02 Excerpt from the Minutes of Eden Prairie City Council Meeting 9. 07/02/02 Excerpt from the Minutes of Eden Prairie City Council Workshop 10. 08/06/02 Excerpt from the Minutes of Eden Prairie City Council Meeting 11. 09/03/02 Excerpt from the Minutes of Eden Prairie City Council Meeting 12. 09/17/02 Excerpt from the Minutes of Eden Prairie City Council Workshop 13. 09/17/02 Excerpt from the Minutes of Eden Prairie City Council Meeting 14. 05/17/02 Correspondence to Thomas Briant 15. 07/15/02 City Attorney Request for Opinion from Attorney General 16. 07/25/02 Opinion from the Office of Attorney General Michael Hatch MEMORANDUM TO: Mayor and City Council FROM: Richard F.Rosow THROUGH: Scott Neal, City Manager DATE: October 1,2002 RE: Request for Investigation and Questions Posed Regarding Draft Smoke Free Ordinance CHRONOLOGY By a document dated September 17, 2002, Paul Wendoiff submitted a series of issues that requested a task force investigation. On September 23, 2002, Ken Rockier, .the Bowling Proprietor's Association of Minnesota Executive Director, submitted a letter posing questions similar to the issues raised by Mr. Wendorff. This memo will respond to the questions and issues raised in both documents. This memorandum presents an annotated time line pertaining to the Smoking Ordinance. Reference to the time line itself is helpful in placing in context the various • discussions the City Council has engaged in with respect to this issue. In addition, however, reference to the actual minutes is important and should be consulted for a more complete understanding of the Council's discussion and actions. On April 16, 2002 City Council Meeting. Clean Air on the Prairie made a presentation to the City Council regarding second hand smoke from tobacco use. Following the presentation, the minutes reflect the Council's following action: "MOTION-Mosman moved, seconded by Butcher,to direct Staff to put together a charter statement and structure for a Task Force to study the issue of a smoke- free ordinance and report back to the Council at workshop session." The motion carried 4-0-1. City Manager, Carl Juilie, suggested the May 21 Council workshop would give "...three or four weeks to gather information, start drafting a charter statement that would address the purpose and goals and the Staff support needed, and put together some time lines and the number of meetings." • •r May 7, 2002 City Council Workshop. At the next City Council workshop, on May 7, 2002, the minutes reflect a discussion regarding a second hand smoking ordinance. Mayor Tyra-Lukens stated she had spoken to City Manager Scott Neal regarding the task force and that the make-up of a task force would depend largely on which particular issue the Council decides they want to tackle. Council Member Case stated that perhaps the Council should forego the creation of a task force and go right to work on a draft ordinance. Council member Butcher stated that the Council will encounter resistance if they pass an ordinance without taking public input. Council Member Butcher stated her perspective all along has been that a task force that would explore all sides of the issue would be created. Council Member Butcher also suggested the possibility of holding a referendum on any proposed ordinance. Council Member Luse stated that the Council must keep in mind the best interest of the entire mass of people and that if an ordinance is passed, it must be all-inclusive and there should not be any"half measures." • May 21, 2002 City Council Workshop. At the May 21, 2002 workshop, a draft ordinance was presented to the Council. The Council was advised, "...the draft was developed for the Council to use as a working document. It is designed to allow Council Members to choose which portions to retain, delete and/or revise." The draft provided a framework for the Council to decide what issues should be addressed by either the Council or a task force; allowed the Council to work on a draft ordinance directly if it decided to forego a task force; provided an opportunity for the public to make comment on specific proposals rather than mere conjecture as to what the Council would consider; and the draft presented was all inclusive with the exception of the regulation pertaining to hotels and motels. The Mayor proposed holding a two-hour special meeting to hear public testimony on a possible second hand smoking ordinance. This suggestion was also in accordance with statements made at the May 7 Workshop,that the Council should not pass an ordinance without taking public input.' A question was asked as to why the draft ordinance was presented. The minutes reflect that I informed the Council that before the April 16 meeting, I had forwarded a draft motion to create a task force to study a second hand smoking ordinance to Carl Jullie,who was City Manager at the time. No action was taken on the draft motion but the Council indicated a desire to discuss the It should be noted that at the April 16 meeting the Council did not move to appoint a task force. The action was to direct staff to put together a charter statement and structure for a task force to study the issue of a smoke free ordinance and report back to the Council at a workshop session. Presentation of the ordinance to the Council was entirely consistent with the Council's motion. A sample ordinance, such as presented to the Council could have been used, had the Council so desired, as the substantive matter on which the Council would direct a task force to work. issue at a workshop. The minutes further reflect that Carl Jullie and I met to discuss how to provide the Council with a starting point for discussion of a possible ordinance.We agreed that I would create a draft ordinance that would allow for extensive input by the Council and provide choices from which they could pick and choose. In fact, after discussion among Council Members, Mayor Tyra-Lukens suggested using the draft ordinance as a framework for talking points for the public at a special meeting and that the Council could announce that at the beginning of the meeting that the passage of an ordinance is not a foregone conclusion. May 21,2002 City Council Meeting. At the regularly scheduled City Council meeting, the matter of second hand smoke was addressed twice in the meeting. First, under Petitions, Requests and Communications, a half hour was given to nine individuals who spoke with respect to their opposition to the regulation of second hand smoke. The individuals were Thomas Briant, John White, Pickled Parrot restaurant, Maggie Mellby, Hopps Restaurant Bar and Brewery, Mike Anderson, Green Mill restaurant, Tara Feltmann and Gary Chanen, Outback Steakhouse, Greg Michaels, Outback Steakhouse, Kenn Rockier, Executive Director of Bowling Proprietors • Association of Minnesota, and Tom Day, Minnesota Restaurant and Minnesota Hotel Associations. The issue was also discussed on the agenda shortly thereafter under the title of"Public Meeting on Smoke Free Air Ordinance. Council Member Case made the following motion: "MOTION - Case moved, seconded by Luse to direct staff to find a date to set a public meeting for the purpose of soliciting comments regarding our proposal to enact a smoke free ordinance in the City." After discussion about developing guidelines for such a meeting, Council Member Case moved to amend the motion, seconded by Council Member Luse as follows: "AMENDMENT TO THE MOTION: Case moved, seconded by Luse, to direct Staff to develop process and guidelines for the public meeting, which would include having a hearing officer to conduct the meeting, the presentation of alternative views, one after the other, and setting specific time limits on the presentations." The Mayor and several Council Members noted that Council had not made a decision with respect to adoption of the draft ordinance and that the draft ordinance served as a discussion point and framework to solicit comments and that the Council was attempting to be open to a variety of opinions. The vote on the amendment and motion as amended carried 4-1. June 4, 2002 Council Meeting. At the June 4, 2002 meeting of the City Council, a protocol for a public meeting on a smoke free ordinance was presented to the Council. After discussion by the Council,the following motion was passed: 3 "MOTION: Case moved, seconded by Mosman to set the eight-point process as a guideline for the Public Meeting on Smoke-Free Ordinance to be held on June 11,2002. The motion was passed 3-1. Mayor Tyra-Lukens stated that she"wanted to reiterate the fact that all forms of communication will be given equal weight." She noted that if someone chooses to send an email, it would be helpful to include their name and other information requested of the speakers at the public meeting. June 11, 2002 City Council Public Meeting. On June 11, 2002, the City Council held a public meeting and received comment from 17 individuals who spoke against an ordinance and 33 individuals who spoke in favor of an ordinance. June 18, 2002 City Council Meeting. At the June 18, 2002 meeting, under Reports of Council Members, Mayor Tyra-Lukens reviewed the history of the discussion of the development of this ordinance thus far. She reiterated that a sample ordinance has been drafted but no decision made. She requested discussion on whether the Council still wanted to move forward at this time. After discussion by the Council about Council Member's individual opinions on the matter, the Council agreed to hold a workshop on July 2, 2002. The Mayor stated the Council would try to construct an ordinance from the ground up using the draft sample ordinance as a framework. July 2, 2002 City Council Workshop. A workshop session was held on July 2, 2002. After discussion regarding the recent Ramsey County District Court Order regarding MPAAT, discussion of the ordinance was held in abeyance pending receipt of an opinion of the Attorney General on whether the MPAAT ruling impacted the City's power and ability to proceed forward with discussion of the sample ordinance and adoption of a smoking ban ordinance. Subsequent to the meeting, the Attorney General's opinion was requested on the following question: "Is the opinion of the Attorney General dated May 4, 2000 addressed to Peter Vogel on behalf of the city of Little Falls, Minnesota2, still valid in light of the Order and Memorandum of the Ramsey County District Court dated June 27, 2002, issued by Judge Fetch in the case of State of Minnesota, and Blue Cross Blue Shield of Minnesota v Phillip Morris Incorporated, et al, Court File No. C-1- 94-8565?" The office of the Attorney General responded by letter dated July 25, 2002.The Attorney General Opinion stated, "You ask whether the Ramsey County District Court's order affects the authority of the city to regulate smoking in public places."The Opinion concludes: 2The Opinion addressed to Little Falls states "Thus,we conclude that an ordinance which prohibits smoking of tobacco any place in a public restaurant is consistent with state law and not preempted by it." 4 "The District Court's Order and Memorandum does not affect the right of the City to regulate smoking. The Court's analysis, including the language quoted above,3 addresses the manner in which MPAAT has expended funds. It does not refer to the authority of local governments to regulate smoking. It was MPAAT's `focus' on promoting regulatory ordinances which was found to be without legal basis, not the ordinances themself. As a result, the Court's order does not affect the authority of the City of Eden Prairie to regulate smoking in public places." August 6, 2002 City Council Meeting. The City Council received•a copy of the Attorney General's Opinion quoted above at its meeting on August 6, 2002. The Council agreed to set a workshop to discuss the next phase of discussions on the proposed Smoke-free Air Ordinance for Tuesday, September 17,2002 at 5:00 p.m. September 3, 2002 City Council Meeting. At the September 3, 2002 meeting, there was discussion under Reports of Council Members regarding the sample smoke free ordinance that was posted on the website. The consensus of the Council was that the sample ordinance was misleading in that members of the public thought it was a draft of what the Council was prepared to adopt, when in fact it was not. As a result, the sample ordinance was removed from the City's website. September 17, 2002 City Council Workshop. The City Council held a workshop both before and after its regularly scheduled meeting on September 17, 2002 to consider a proposed smoking . ordinance. The result of the meeting was that the Council wished to review an ordinance that would ban smoking only in publicly owned spaces. Smoking within restaurants and places of employment would not be regulated by such an ordinance. The City Council agreed to hold further discussions on how to proceed at the October 1, 2001 workshop to be held at 4:00 p.m. September 17, 2002 City Council Meeting. The Council discussed two items relating to smoking during the meeting. First, there was a motion to discontinue sale of tobacco products in municipal liquor stores as follows: "MOTION — Luse moved to discontinue the sale of tobacco products in all municipal liquor stores in the City of Eden Prairie, effective January 1,2003." The motion was seconded by Case and carried 5-0. Second, there was a discussion of the task force proposed by a citizen earlier in the meeting. City Manager Scott Neal stated _that his office planned to issue a press release summarizing the Council's deliberations and to review the request for the task force as a request for public information. 3The language the Attorney General opinion referred to in the letter as quoted above is as follows: "MPAAT's four year focus on the environmental smoking ordinance smoking prohibition approach,in derogation to providing assistance to individual tobacco users,is without legal or factual justification." 5 REQUEST FOR INVESTIGATION BY A TASK FORCE AND QUESTIONS SURROUNDING THE COUNCIL'S PROCESS ON A SMOKE FREE ORDINANCE Many of the issues or questions raised can be Rnswered by a simple reference to the record. I will go through the issues that are identified in the request for a task force and respond to them in the order of their presentation. This will also serve to respond to the letter of September 23, 2002. Some of these issues have already been responded to at the Council's last Council meeting. 1. Request that a task force investigate the creation and organization of the Clean Air on the Prairie group by the American Cancer Society, the membership of the Clean Air on the Prairie and the amount of MPAAT funds spent by the American Cancer Society to organize and support Clean Air on the Prairie's lobbying efforts. As stated at the Council's meeting on September 17, 2002, the Council does not have the authority to investigate an outside organization such as Clean Air on the Prairie or the American Cancer Society. Powers of the City are set forth in Minnesota Statutes §§ 412.11 and 412.221. Neither of the these sections grant the City the power to conduct investigations of outside organizations. I am not aware of any other law outside of these two provisions that grants the City such authority. This office has requested and received from the Ramsey County District Court as well as the American Cancer Society documents identifying the expenditure of funds related to the American Cancer Society's smoke free ordinance effort. Although the documents that were filed with the Court or prepared by the American Cancer Society do not reflect the specific dollar amounts for Eden Prairie, they do identify the funds spent by MPAAT in its stated objectives to lobby for the passage of smoke free ordinances. If the Council so wishes, we will make copies of those documents available at City Hall so that any citizen may have access to them. 2. Request for the date, amount and purpose of each expenditure of MPAAT funds by the American Cancer Society to lobby Eden Prairie Council Members and influence residents including printing of brochures, mailing of brochures, telephone bank operations and other lobbying related efforts. As stated above, the City does not the authority to investigate such activities nor does it have the authority to require MPAAT or the American Cancer Society to deliver such information to the City. The information referenced above is available to the Council and if directed, we can make this information available at the City for review and copying by citizens. 3. Request for the date,place and substance of each meeting during 2001 and 2002 between the American Cancer Society or Clean Air on the Prairie or their representatives with City Council members, City Staff members and the City Attorney regarding a smoking ban ordinance. To the extent there is Government Data that was collected, created,received, maintained 6 or disseminated by the City pertaining to any such meetings, that data would be public data and available to anyone who makes a request for it.I am not aware,however,there is ' any such data in the City's possession or control. The City Manager has stated that the City will follow its regular processes in responding to requests for public data. Neither I nor my staff have had any meetings with the American Cancer Society or Clean Air on the Prairie regarding a smoking ban ordinance or any other topics. 4. Request for the date, amount and purpose of each expenditure of M1SAAT funds by Minnesota Smoke Free Coalition (SFC) to lobby Eden Prairie Council Members and influence residents including printing of brochures,mailing of brochures, telephone bank operations and other lobbying related efforts.The information requested is not the type of information that the City can compel MPAAT or SFC to deliver to the City. The request is more properly directed to MPAAT or SFC. 5. Request for the date, place and substance of each meeting during 2001-2002 between SFC's representatives and City Council members, Staff members and the City Attorney regarding a smoking ban ordinance. The answer to this request is the same as the answer to Request No. 3. To the.extent there is Government Data that was generated as a result of any meeting that may have been held, the same would be public data and available to the public upon the filing of a data practices request. Again, neither I nor members of my office have had any meetings with SFC. 6. Request as to the circumstances involving the City Council's initial decision at the April 16, 2002 meeting to appoint a task force and the subsequent decision at the May 21, 2002 meeting to forego a task force and proceed with steps to adopt an ordinance. 6.A. The statements and recommendations made by Council Member Case that a task force not be appointed and the hesitancy of the Mayor to appoint a task force at the May 7, 2002Workshop meeting. A review of the Chronology presented in detail above, provides the answer to the question. The Council discussed the issue at the April 16th Council meeting, at the May 7th Council meeting and after the May 21st Council workshop. The Council never considered a motion to appoint a task force. The Council did adopt a motion asking staff to bring forth to it a charter statement and structure for a task force to study the issue of a smoke free ordinance. The decision made at the May 21, 2002 meeting was not a decision to proceed with the ordinance but rather an action by the Council to take public testimony. In fact,the City heard from 50 individuals who spoke at the meeting. Essentially, the request asks for an investigation as to why a Council Member and the 7 Mayor expressed an opinion4. In fact, Council Member Case and Mayor Tyra-Lukens explained on the record their positions at that meeting. If the question is posed because the writer believes that a violation of the Open Meeting Law took place, then that matter is not appropriate for a City Council appointed task force to investigate. The Minnesota legislature has made quite explicit the recourse for any alleged violation of the Open Meeting Law. The Open Meeting Law is codified in Minnesota Statutes Chapter 13D. Section 13D.06 addresses the process and remedies for anyone who alleges an open meeting violation. 13D.06 Civil fines; forfeiture of office; other remedies. Subdivision 1. Personal liability for $300 fine. Any person who intentionally violates this chapter shall be subject to personal liability in the form of a civil penalty in an amount not to exceed $300 for a single occurrence, which may not be paid by the public body. Subd. 2. Who may bring action; where. An action to enforce the penalty in subdivision 1 may be brought by any person in any court of competent jurisdiction .. where the administrative office of the governing body is located. Subd. 3. Forfeit office if three violations. (a) If a person has been found to have intentionally violated this chapter in three or more actions brought under this chapter involving the same governing body, such person shall forfeit any further right to serve on such governing body or in any other capacity with such public 4 Under the Minnesota Data Practices Act, the mental impressions of public officials and employees is not government data subject to the Act See Keezer v. Spicard, 493 NW2d, 614, 617 (Minn. App. 1992). The Court stated "We can not believe the legislature intended the term `government data' to be literally'interpreted to include unrecorded data that exists only in the human brain." The Court went on to state that "To give effect to the Act; we conclude that information is not `government data' until the information is recorded somewhere other than the human brain."Id at 618. 8 body for a period of time equal to the term of office such person was then serving. (b) The court detaining the merits of any action in connection with any alleged third violation shall receive competent,relevant evidence in connection therewith and, upon finding as to the occurrence of a separate third violation, unrelated to the previous violations,issue its order declaring the position vacant and notify the appointing authority or clerk of the governing body. (c) As soon as practicable thereafter the appointing authority or the governing body shall fill the position as in the case of any other vacancy. Subd. 4. Other remedies; requirements; limits. (a) In addition to other remedies, the court may award reasonable costs,disbursements,and reasonable attorney fees of up to $13,000 to any party in an action under this chapter. (b) The court may award costs and attorney fees to a defendant only if the court finds that the action under this chapter was frivolous and without merit. • (c) A public body may pay any costs, disbursements, or attorney fees incurred by or awarded against any of its members in an action under this chapter. (d)No monetary penalties or attorney fees may be awarded against a member of a public body unless the court fmds that there was a specific intent to violate this chapter. There is no authority under this statute for the City Council to investigate any such violation through itself or through a task force. 6.B. Request 6.B.is a series of three questions:. 1. Who gave the City Attorney the authority to draft a smoking ordinance when the Council voted 4-1 at the April 16,2002 Council Meeting to establish a task force? The City Manager gave authority to draft a smoking ordinance. 2. Under what authority did the City Attorney and acting City Manager rely to independently decide to draft a smoking ban ordinance and forego the Council's direction to draft a charter statement and a structure for the appointment of a task force? 9 The City Manager is granted authority to direct preparation of ordinances under Minnesota Statutes § 412.651, Subds. 6 and 8. The City Manager's direction that a draft ordinance be prepared was entirely consistent with this statutory authority. The relevant subdivisions of the statute provide as follows: • Subd. 6: "Recommend ordinances and resolutions. The City Manager shall recommend to the Council for adoptions and such measures as the City Manager may deem necessary for the welfare of the people and the efficient administration of the affairs of the City." Subd. 8: "Administrative Code. The City Manager shall when directed to • do so by the Council prepare and submit to the Council for adoption an administrative code incorporating the details of . administrative procedure, and from time to time the City Manager shall suggest amendments to such code." 3. Whether a member or member of the City Council suggested or directed the City Attorney and/or acting City Manager to forego drafting a task force charter statement and instead subvert the Council's April 16, 2002 decision by directing the smoking ban ordinance be drafted. No. 7. Requests for investigation of a possible conflict of interest resulting from the past and/or current status of Mayor Tyra-Luken's membership and/or involvement in the American Cancer Society to due American Cancer Society's lobbying efforts to influence the Council to adopt a smoking ban ordinance. I have advised the Council that the circumstances do not present a conflict of interest prohibited by Minnesota statutory or case law. In addition, we have researched the issue in response to a request by Mr. Thomas Briant. It is my opinion that the Mayor does not have a conflict of interest arising out of any past association with the American Cancer Society. It should be noted that the American Cancer Society is not a member-based organization and therefore Mayor Tyra-Lukens was never and could not be a member of the American Cancer Society.A copy of my letter to Mr.Briant is attached. 8. Request investigation of possible conflict of interest resulting from Council Member 10 Butcher appointing Leslie Ellis as co-chairperson of her state senate campaign. Although this particular allegation was not specifically addressed in opinion cited above, the same analysis, the same statutory scheme and court decisions, are applicable on this issue. After consideration of the allegation and the relevant statutes and case law,it is my opinion that Council Member Butcher's appointment of Leslie Ellis as a co-chairperson of her state senate campaign does not constitute an interest in a matter to be acted upon by the Council and is not prohibited by Minnesota Statutes § 471.87 and § 412.311. Further, as analyzed under the line of cases cited in my letter including Lenz v. Coon Creek Watershed Dist, 153 NW2d 209 (Minn. Sup Ct. 1967), Council Member Butcher is not disqualified from voting on the proposed ordinance as a result of her appointing Leslie Ellis as co-chairperson of her state senate campaign.The allegation seems to be that since • Mr. Ellis is active in Clean Air on the Prairie, that his relationship to Ms. Butcher as co- chairperson of her senate campaign gives Mr. Ellis influence over Council Member Butcher's positions. While in fact it is reasonable to assume that the exact opposite, i.e. that Council Member Butcher's views would strongly influence Mr. Ellis, there is not a conflict of interest presented. Council Member Butcher's views on a smoking ban ordinance have been explicit and public. The fact that Mr. Ellis is a member of Clean Air on the Prairie and is a co-chairperson of Council Member Butcher's state senate campaign is also public. In addition to there being no conflict of interest, there has been no withholding of any information from the public. The matter has been open to public scrutiny the entire time this item has been considered. 9. Request for investigation of any and all other issues that relate to the ethical and moral conduct of the Eden Prairie City Council regarding the proposed smoking ban ordinance. Any issues relating to Council Member's actions,whether it be an alleged violation of the Open Meeting Law or any alleged misconduct can only be addressed pursuant to state statutes which provide the process for any citizen to seek recourse. That recourse does not lie with the City Council but rather elected officials of the state including the Hennepin County Attorney and the right of any member of the public to bring an action in state court. EP\Ciry Code\Smoking Ban\Memo.100102 11 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL TUESDAY,APRIL 16, 2002 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Sherry Butcher, Ron Case, David Luse, and Jan Mosman CITY STAFF: City Manager Carl Julie, Parks & Recreation Services Director Bob Lambert, Public Works Services Director Eugene Dietz, Community Development and Financial Services Director Don Uram, City Planner Michael Franzen, City Attorney Ric Rosow and Council Recorder Jan Nelson Curielli I. ROLL CALL/ CALL THE MEETING TO ORDER • Mayor Tyra-Lukens called the meeting to order at 7:00 p.m.All members were present. H. PLEDGE OF ALLEGIANCE III. COUNCIL FORUM INVITATION Mayor Tyra-Lukens said the Council Forum has been modified as follows. Council Forum will be held the first and third Tuesday of the month from 6:30—7:00 p.m. in the Council Chamber.Please note that this portion of the meeting is off-camera. The Council Forum will consist of two parts: scheduled and unscheduled appearances. 6:30 to 6:50 p.m. is reserved for scheduled participants. If you wish to schedule time to visit with the City Council and Service Area Directors,please notify the City Manager's office (at 952- 949-8412)by noon of the meeting date with your request. The last 10 minutes of the Forum,from 6:50 to 7:00 p.m. is set aside for impromptu,unscheduled appearances by individuals or organizations that wish to speak the Council. IV. CHAMPION OF HEALTH PRESENTATION BLUE CROSS/BLUE SHIELD Muriel Scott and Janelle Waldoch,representing the Champion of Health program,said former Mayor Jean Harris was nominated and selected as this year's winner of the Blue Cross/Blue Shield Champion of Health award.Ms Waldoch said Dr.Harris was selected for the award because of her life-long efforts to control tobacco use at the local, state and national levels. They presented a video of Dr.Harris promoting a smoke-free environment and reviewing the health issues caused by the effects of second-hand smoke. Cindy Schultz,representing the American Cancer Society,presented the award to Dr. Harris' husband, Leslie Ellis,and her daughter, Cindy Ellis. V. ARBOR DAY PROCLAMATION Mayor Tyra-Lukens read a proclamation proclaiming May 4,2002,as Arbor Day in the City of Eden Prairie. CITY COUNCIL MINUTES April 16,2002 Page 8 MOTION: Case moved, seconded by Luse,to adopt Resolution No.2002-82 relating to Residential Group Home Facilities owned and operated by Fraser, a Minnesota Nonprofit Corporation,and the Issuance of Revenue Bonds to finance the costs thereof under Minnesota Statues,Chapter 464c,as amended, and Minnesota Statues, Sections 469.152-469.165, as amended,pursuant to a Joint Powers agreement; granting Preliminary approval thereto; establishing compliance with certain reimbursement regulations under the Internal Revenue Code of 1986,as amended;granting approval for entering into a Joint Powers Agreement; and taking certain other actions with respect thereto. Motion carried 5-0. X. PAYMENT OF CLAIMS MOTION: Case moved, seconded by Butcher,to approve the Payment of Claims. The motion was approved on a roll call vote,with Butcher, Case,Luse,Mosman,and Tyra-Lukens voting"aye." XI. ORDINANCES AND RESOLUTIONS XII. PETITIONS,REQUESTS AND COMMUNICATIONS A. PRESENTATION BY"CLEAN AIR ON THE PRAIRIE"REGARDING SECOND-HAND SMOKE FROM TOBACCO USE Jullie said we received a request for a spot on the April 16 Council Agenda for a presentation by an Eden Prairie group called"Clean Air on the Prairie." Leslie Ellis, 10860 Forestview Circle,said some of the background for this presentation was given in the Champion of Health presentation(Item IV). He said he has long had concerns about the harmful effects of secondhand smoke on the health of our citizens. He and his daughter are committed to continuing Jean Harris' fight to protect citizens from the effects of secondhand smoke. He said they have found a partnership in this effort with the American Cancer Society. They have circulated a petition about this issue and have obtained the signatures of 1400 Eden Prairie residents. Cindy Ellis, 635 Prairie Center Drive,asked that a task force be formed to investigate the issue of a smoke-free work environment and smoke-free public places. Cindy Schulz, 9211 Homeward Hills Road, said she volunteered for the American Cancer Society. She would support a City policy that would protect those who live and work here. She believes secondhand smoke is a deadly disease. Becky Hedlo said she works at the Eden Prairie School District. She said the School Board has passed a resolution approving making the City into a smoke- free community. She was concerned about the issue of modeling behavior for CITY COUNCIL MINUTES April 16,2002 Page 9 young people and about the effect of secondhand smoke on children with asthma. Jim Gunther, 9082 Victoria Drive, said there is an epidemic of second hand smoke.He thought this was an opportunity for the Council and Eden Prairie to set a precedent in this area. I Stacy Pearson, 13222 Bush Lane, said she worked at a local restaurant that allowed smoking and she had many colds and coughs. She said her health has improved since she quite working at the restaurant. Kathy Meyer, 9427 Clubhouse Road, said she has owned the TLC cafe and catering business in Eden Prairie for 12 years. She believes a smoke free workplace policy is necessary to keep her employees' and patrons' health. She said her business is now going smoke free and her clientele have been very pleased with the decision. She said this as an opportunity for the City to sGt an example for the rest of the metropolitan area. Pete Donnell, 12200 Middleset Road, said he is a pediatrician who wanted to take a leadership position to make Eden Prairie a safer place to live and work. MOTION:Mosman moved,seconded by Butcher,to direct Staff to put together a charter statement and structure for a Task Force to study the issue of a smoke-free ordinance and report back to the Council at a workshop session. Butcher said out of deference to Jean Harris and her hard work and the concern of many of our residents, she believed it would be prudent to have a task force to work on this issue and gather the information for further discussion at a workshop. Case said there is a financial component that makes this issue somewhat complicated. The bottom line is that people are getting ill or dying because of second hand smoke. He believed we,as a society,must respond, and it is a question not of"if,"but"how" and"when." Luse thanked Mr. Ellis for his outstanding service as Eden Prairie's"First Man" and for the entire family's commitment to the community.He thought this is a political issue,and he was very concerned about Eden Prairie getting involved in this issue at this time. Luse said he supports a ban on smoking in public places in.Eden Prairie,and he believes that the great majority of our residents also support such a ban. To him, there is no middle ground.However,he thought it is best that we not start exploring this ban until the Attorney General clarifies the rules of engagement on this contentious issue,which he understood is to happen in May. Therefore,he said he would vote against forming the task force at this time because it is just a little too early. CITY COUNCIL MINUTES April 16,2002 Page 10 Luse said while he would like to see us demonstrate leadership on this public health issue,he doesn't want our city to become an island or a battleground.After a difficult year in city government,he didn't think we need the divisiveness that could come as we become targets of political campaign forces on both sides of this issue. ti Luse said the Attorney General would be issuing guidelines on how anti-smoking organizations that receive state money can interact with city and state officials. These guidelines will help set the rules of engagement so we can have fair and constructive debate. Luse also believes this is an issue that is best addressed at the statewide level. But because the political will doesn't exist to take this on statewide in Minnesota,he was concerned that the political maneuvering over this issue city by city will be very divisive and distract us from other issues of equal importance. He thought we should start considering this important issue with the Attorney General's guidelines in place after May 17th. Mosman said she could understand Councilmember Luse's concerns but she has been doing some research on this issue. She said she understands that the MPAT issue is a separate issue from us looking at a smoking ordinance, and we are not going to be using any MPAT money to put together a task force. We are representing our citizens, so she did not feel that we would need to wait. She noted there were 200-some local ordinances passed in California before the state passed the ordinance. • Tyra-Lukens didn't see this as an MPAT related issue,but rather as a public health issue. She was very supportive of this but thought there are issues that need to be looked at,such as how best to draft an ordinance that would address some of the concerns or the business community. Luse said he believes we have to look out for the majority and his concern is the political ramifications.He was approached by MPAT and lobbied to support the issue. He said he was asking for just 30 days before we allow the political maneuvering to begin. Butcher said she wanted to clarify that this is a task force to collect and gather information that will come to the Council where we can discuss this issue. Luse said he understood the concept but, in the process,perception is reality. He was concerned that,if we start the process,the sound bite will be that Eden Prairie has passed the smoke-free ordinance. Rosow asked if the intention was that staff draft a charter statement and structure for the Council to approve the task force and then make appointments to the task force.He suggested indicating a time frame for when the charter should be brought back. CITY COUNCIL MINUTES April 16,2002 Page 11 Jullie suggested the May 21 City Council meeting.That gives three or four weeks to gather information, start drafting a charter statement that would address the purpose and goals and the staff support needed,and put together some timelines and the number of meetings.He thought we could follow the guidelines for other task forces. We have a workshop date open on the evening of May 21 that could be used for discussion of a charter statement. VOTE ON THE MOTION: Motion carried 4-0-1,with Councilmember Luse opposed. B. PETERSON/BRIGGS REQUEST REGARDING MOVING THE FELTMANN HOUSE Jullie said at the March 19 meeting the Council gave Staff direction to follow up on a number of items. He referred to the U.S. Fish&Wildlife Service's response to questions posed by the City in a letter to the USF&WS. The Council also took action to suspend work on the proposed parking lot and access to the Richard T. Anderson Conservation Area.He also referred to a copy of the notice to the Briggs family suspending the termination of their lease. Rick Schultz,Manager of the Minnesota Valley National Wildlife Refuge, reviewed his letter of April 8 responding to the questions posed in Mr.Lambert's letter of March 21, 2002.He said he tried to explain why they believe a relocation of the home would complicate their management of the area as well as their future plans. He hoped the home could be relocated to another location. Schultz said the only remaining units left to be purchased in the Refuge are within the Upgrala Unit.He said they only acquire land from willing sellers, and they pay the market value,based on an appropriate process to determine that value.He noted they offered Mr.Peterson a fair market value purchase of the land in November 1979 and again in April 1988;however,in both cases the Petersons refused to sell. He said it is his agency's highest priority to obtain appropriations from the U.S. Congress to purchase land in this area. Tyra-Lukens thanked Mr. Schultz for his presentation. She noted that we all recognize the value of the Refuge. She asked how long the Upgrala area has been the highest priority for purchase. Schultz said the Upgrala area is about 2000 acres so they have not had appropriations to purchase all of it at once. Case asked how many acres in total there are left to buy. Schultz responded there are about 2000 acres. 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PRESENTATIONS BY COLLEGE STUDENTS REGARDING RECYCLING OF .••• . - • ...•...• • . BUILDING COMPONENTS ... •• . • • : • '' " " • • ."-.. - • ., • :• •• •••• -••.:. .• :; ---•'.:.• ••• ..-::-...., :-.....•••,:•:•••:,,,•;4 kiltithi .-4.•,5;.;•:.4••••''......;•-.'.••.',•-•.!.:' •.: • : .•.• • . . • • . . • • . .• • " ,. —-,FL,:.•A:.-' .-•,•-,'A••••••,..i1.-••••'•.• ,•• ...•:•••••••--A..-•••••;-,..-'- •;..,--:;••-•i -•-•.-1•,....--4•-•••,..,..2 . -.-r•&.+.1.N••-,t7.---"-•''•-', ---•:••••..7...'•47•-.-:•:. ••t:..:.• Finance Director Don Uram said he has been investigating ways in which:the abandoned .;;,--..f••:. :-.•'.„.,.-4..••• . • . _ . . _.....--..,,,-.. •• - • .,i. , . 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L ,.,..,=..... „•-•t..,in.,-rf•-fisfYr""*;`,•':•.',--'1.:!"'•%-''..;?5•••:q•''..-.-.1.%..7 • '•• '• , •"..:-. - •"':''!''-',-:•%''"'-'',:',i,";-:`.1'Al'-''f'....'4'-'-',, eet-.C.:tkz.V;z".:7.:';'`....:: .4•P 0..fC4'...,y!-,•`...'gP•1-•••':•.%?.''•••-•••••14r•i,!..4-7•'I-.1A-1•••=3,ielp,„...,,,,,,,•444,•=.4.1-45%;••Z•••!..A...? •A"S:V•••"':':••'•: - . .:- ".'• '• • •• .•.*:•:,•-•; ••••kt,'•.,A'A.:•;-.7..., •,,..t.•••••,.,.. .•; 1,•.,-:-.-- :*!:- '..:•••••''..,‘,.:-•'' i••••?....7.V.;.••••-'i'''''''':.:;g•,45,';4',--..ai•;4A14-14:7,4494•!W:..%•-...i•,!•••••••-• '..: •• .-••' .• - .:• .' • • . • Phosphorus Legislation's, .: -- '.• - • •: : ' -• ....:•• • •::-,- ::*-i.!,.-.-ii..••,,,t•AFfi.,,,.*- -;•,...i.4.•"•••-..f,ir, ••••',-.- :-:.=.. •• ...-..,•.,.......= :N.,•,...., •:... .,--,,,...•.::: . . ,•,...• ,.. .:...„•:,.••-:,:.,,,,-4...)..:...,), •••, „4,04.,,,,,...„,4.,A.• -,A.....i..f-,1,,•..,• .,.,.. „.• ..-...: . . ?.: ...,,---,.. ••• • •• ••••Mayor Tyra-Lukens said she received a letter pointing out•that although' recent legislation- .--.•.• •....;:..:. • .... .... ........ . • ,. . • •:,..•••••'--'-'-••••• 1- '-::•'-• will ban use of phosphorus.m.fertilizers after August 11;it does not prohibit-III" e'sale of:,..:_ :;--;:-.,,,:, . •• •, ... ...,6,-.,,ti,,-4.,••.•,,s.. .„--:-.:„,-,......---- .,., ,.-s.. ,...„.,„...„1„.„.1,,...,•.,),..„,,.. .,...„..,... , :,-,..-••••?...:.;-:-',.•1_,N,:•0.,....- -af•,..,=f•iiti*..0,-.. ... .!;-•-•.-1.i••4•-•;••,-•"0 :" -, ••:. -If..:•-•,,,s.:•c". ,-k,1-••:-...-L.:,phosphorus.'Mosman said that the Council may want to consider closing up:rms loopnoie 17-..-,,,-..• • • .: •••-",•.•cii•-•-r:,;:,,,,•••••:.-....,...,-...•.•: • -- •,••••.,.1/4.,,.;...., ' .•• :-..• •.. by passing a local ordinance to ban the sale of phosphorus. .Luse suggested referring the • •• -,,E's-4.-•.:' ,•-•:.• ;.•-:_-..•:„...',-; :--r;- matter to CityAttorney Ric Rosow.'''.,••;Cs'''e asked Rosow to-prepar e a me tho for Council's... '- '-' , - '. •••. .. •- • . .- • ,-. ,.----.•...,,,-,--.....-i•-••:.•,-.4. ,...., ..;, ..,:-...,...-:...-• ,4..,.,.....,.... • .. : ,...•••_,....,-zk... ..-...,,,....,,,,.•,4-...i.,,,,y„ei._,, -,1,••,:t.-4- ..-• .; •-.-,;.•.F- .: • --7,-- .•-, ,..:._-..,:....-.••.:,,;-.... -,.., • review by late Jime:4.-;,.!;13•,:g..-,:::-.t•-•,?::"..F'..‘:::::-:.-•••_• -'-:";.2•;,:•'-:.-4_:"..1.! ..•:;"-'-` -•:::t.'.-...-:?; .•;:f:.:::-.'2-';4i'•!iti1*7'.i-;•-?_,..z. „...1••?:":i ,.-:': 'f• • . -•,' -` r• •.11::,',,...L.•.--•••••,.'- T... ..-• '..• " ;.• : ;' :.:.7,..-..4i:•;1-,t2....2-:..::,1,.,-,,.ff.)•.'7' .'*:..-''-1"'!,.' ',..- r- •••-• • .L:4'-, .-. •*. ''--•.:'-,2'...-t"..~,--1•11-7,:P-r4.-' : c:71. !' '..._•-•_::::...-.--.---;_,' - • .. • *- :7-. '...•---,-,'-‘:„.. ••'-••7 -:• ::;''.:. '-..', ,.-"..:••:;-•::: :••••4:j.%•::::1:'''.', :`,•---7,7---2 7:, ..4,;.••••:.,.. .• ,• . . .••••• , -•,.: ,.,•;:•::•:-.-:::••.:-..:-;,!• :-•,?-i7 -1 :4:64;•.14•_=',,-".:4",•-•-- 7-;-'!'• •••, -"- •F. •' - .-.;:?-4;.-.•.-.-... ,..._-.,.... •,••-_._ • , • -... .,',',-.-•;.i..:1':.;._""-'..Zzi.'.'.,-':*e.:,,-7;_-;-'','..',...;.:7.Ci'...•",:'.:,.-_3:,...-'T-,,:,:•!•',,,;'.,..'.,'.:..:--..:,..?:::',-.,.-L.:.-.•A:.,,,,-,:,,:::_•,,,••••,.-...-..•-::•.:!t..:..4-,--;-•I...,.;„:;iAf-zv,.;..-1;,',,,,n,-,T-A.:r_IL;;z.;:-4.77.:,„,-.:44-,.-r.,"..f.•;,_,:.•.•;r ..:•.,-.,:•: -!.. •• - .-." ,..„.-.i-.,...1,,, .F,.,, P:•..441-,.. ,- ▪ • , Z. ;,; . , ; , : :A ; _ 2 . , . . , : .14s :▪ ',.,,,T---,.-:,.,;,,:,-:,..t.....;..',.;7‘„,.,,.-.-,...., .,.".......,,:,.-.;,,?.,....:...,,i....i- '!-.;'?::*.,• •• , . . . . . -. .- . .. • . • '----.."--...- '.' -.1.,•----•----•,- - ----"" '*,''.i---.....,-,--44,...--..,.....----.4-1,--4Z.-4 :''..t.'%,-44:c4;;:;-'';:r;fit-; .:'1:.:;.:;..'-:.',','=te4;.:: -.iliti'it'..-*A•f ":k1" IWiri:iti.ti'':'::,.---T- 4'.''TZ-.'•r.,:''-;.':-t'C;:t.4.-:'l';',- -'i:;:;.'";- ..-,._. ,, -, —,, _,-., .„_...F.,- .4." .-1•-•,:-.,-'-','c--''''''- ""--1 . . . - - . • , . . --:1-'..4•'".•-•.5j7:-•-• :•-•,_'••--:-.,-,n-l•-.-11.7.-7.=7,1"-:•,;•-f's.-.- ,•:-,••• • -.-.- ..:-,-...._.:-,.-,_.,_ -. :- . . - - : . .. . . . ---:.--.,-,-;,,-,-, :•: -..--,..--1,-,- •Second Hand Smoking Ordinance.t--,-:-. - :- •- -: - - :- : • . • . :._ .._ - -_: - - - ... - _..,•,.. „;---,1-,...,‘•-?..•••,--:.---.2-....-,.=-.,= =.!-=,„.:-- -• - --, - • • • - - ---, •,2 '-'•• •City Manager- - 1._,..-:z-i•-_---4::-.,,t1•---.. -1°Mayor Tyra-Lukens said she nad spoken with Neal about how to best go::-4.1_:-:-":,-_,.'.,..':, - ••••,-..,..-_,,-...,..x:,,,,..„7„1.--,;..,,,,,, :._.....2. ..,.....„,„ .„.-„..,-.•:-._._,. r. : .. - ...:- •-• ,:s.:.;: .. ., - -• --.-: ....-...-.-- ,..-,... -,;-•.-..,-- ------?..::5:57f....:-.. . ,•::‘,..k, ..''''1Z--:7--..' about designing a second-hand smoke task force. She said they concluded makeup of s.•!,: ".-.-.•:-.v.,. . . .-,,-..----...1-,-;.,.. • - . '"''' .--.s. '1'' '''''-'"'any task force would depend largely on which particular issue the Council decides they, -:-.-7...,-,_ , ...-_,-... .-....:. . - . .. .. - • • :-.-•.'21.-.••-•,-,•••:,•,.-.--. •-•.•;:.';:i,';'•.,.,.rwant to tackle. Tyra-Lukens said she believes all of the Councihnembers agree they want :•-..-,.. ...:!:: ! ,,,!-:-:,,f..-...:.•F,. • : . •-..-.—..- •• - . .... ;,•.-=:'=P. -,;,-,---•:' • .;•'-‘:-•- .--to do something in regard to second-hand smoke,but the question remams how extensive -.--...,-.. , • . , -,.,,.. :•••: • , •- - '--;.- -••• = ' --- '.--.',-..--"'••-any ordinance should be and how it should be implemented. . -- . . -' •,. • . -. ...=:.., .• ___ .. ,.. . . . .. • . - -, • .-..-..• • .• .. • . ,. '';..,:g:;-• V.-:.;'-•.-..''...4 i'•':'-:i''zi,:-'-.Case said that since-everyone seems to agree that some sort of ordinances in order, ,3....t••••=r -.;•.-fr-;....:.'..t-•.-„,:••.,,,,,,,,,,-„,-. . . •I'A;',•:'-k4'--,•:=1,--,-.g;i"-.7.-Wi:e.'..• erhaps th_e Council should forgo creation of a task force.and go right to.w.ork-o-n.a..dra-iid-'7: :!''z'-';'''fig=•''";-o'' ordinance ..0,-,,,,,v44,....--•.,--.-.;,0,0„,0,•••-..,,,,..:•-_,?,--....--, rii.-1,-.•,,,-••••,,,,...43,4,...,:,,i...7.,,,,,..,„•:..•44:1,,,...-,,ttit,4 ft,i...........'ziti,.. ..w.-,..... 4f6x. -11... ..,0-...,„4.: -'F'.'1':-;A':.;-‘g;f1"?.'-'''''"'•g.t7:' .---The Council could then focus on extent of the ban and methods of‘,-!;•!-:•,.,,,-.--.:2-43•!.,-;,.''..;it.-§I'f.•,-.',-my,;J.)•••:,,.F.:..t-,-4.-r. i:.:';',1-.--;.?..z;•F'f',.?-1:,•1••_'•:•-•.'••.:::nt.1:?-!:- ..: ::;..••.... . ..i. •:-= -, :.,... -• • •.. •-• . - ., ,. .. . .. ..-. •.- .,-. • . • •• :•:=-17,•-•f.4,_,...-v,-,:-..s..:-.:i:,,..,,,,..::-::4•0A - implementation-'4''''"'4';!".•"" "="'"'''''":tImplementation'Case suggested that;assuming an ordinance is passed,the City.T.5-15.:‘,K-.I.;„ :,;:•:::;-<il„.i.. ..:•...,,,f;1-•-•;•• :.,,,,, ,,•:::iti...72.,,,,,,A-1,=•.1..z...,..:,5 • ,,..,..-.•„,,..-.-:. .,,,,,,•:=1,-.,..,.5:•,-K-...,....,f,.. .. .-- • • . . . -._•-.:.• ••,...,..,--!..,,,,;;;,:-..:3,,sf.=•.-a,...•,.. .,,,,-.......;:cke;-.7-4,•,z, tr'LA-''''''''';''''''--'•'-n---"'cr-publicize our smoke-free status regionally to attract individuals who prefer not to be!..::.;y,fr:,...ef.:.•,-,-,,s.z.:;.•:-..,,. ..,:,-,...., „ ,,,..:-.... :•••••• :-i-,''''Yq,•'.'rzt.;if....!-:•::•;1•••; %1:"-.• 'Y'':.:around second-hand smoke. - ..... ....•• ••.• .--; .-'•• . •••; •.....•-,...•:- *:.: ..": •• . ...••'' .•, -!_:......;4;....':. :•,.':•-••••.:,'•,-,'•i•••..-•-•;:-..=.:.-• • ,.:.-i-,-. .. -,:_•.......-.•:. :•-.-..:-.:,:.:.-•••.- .... • - • . • • • • .. . - • ,•• • . . C-•r•"•"''''''''...--'-'1••-•'"••.ef'••••••'Mosman said she.feels the Council will encounter resistance if they pass an ordinance..,:.Apt';:i.. -:',4,1:',4•4`41-,:u„.:•••Aa'elir&i...,i'..--•- -:,--z, .• • - • • • •.• , .- .-.• -,-,.• • ;:::-:-.1:,:-",-'-: :::-,--,,,:.:1•:':':,:iv fki•-A-;!..illteelikE.3141rig•',I;;1215'7,A..-.7-:-(wi.without taking public input Butcher said her perspective all along has been that alore all sides of the issue would betaskY,fR a . ..:•---1.4..ig''-'71Mtiikl.t1P4iirod that Would exp `Created... She also nr-giu.'A the 1.4-..'4.2.,1- ,rl'i.11.,4*,11,!-I;g.....W.,....T.:.. ?1,.--1.';';s3.•;•..4-*-,r;:...;'''....1)... .':::".. • .- •• • -6'.'1.#,,,:-.,.4,:::,,..i. ;:::.: I.,,..:A.:-.,..35; -.1,§2..-4.-c.:.'...7•„'-:#.,,si:i..,-,51,-,....':,:,--!,; .??,.:31,..,,:;:,..-Council to do research into what other Comm unAties are.doing She said it would e. :;•:,..:g:•,;;; ,; :•-..........::-•••;:m ,.._ = •••:. .-.,......:.,..•,•.ri•.•. :-..,. ••.--:....;::P:',:.';,i;•••;A:‘, '''':)il.::;1'dangerous for five individuals to make such an important decision without getting-L.,Ft?,,-......1„,, ,,..„,.,,,-..„ ',s„,••,.:±z,:z.,....-..-...,.-5-..::: •..--;- . .•: • . •. . • . • ......„,-....„.....-f::,,I.:;•,4;,!••••g.. .. f .li"damm-tir,tity:inp!it.7.:,Butcher also suggested the possibility of holding a refefeliaiiin611/anylg.,M, Egke•-:e •• ••"- • -•-•-- - •••• ••• •• ••. . ".• •..,•-,,,-_:"'.••:.'',•...45...k.IW'Rt:Skt:,K11 k.",4:1110.$ti'lse...•?•::k;c4".., 1-,a111:1,z‘O'lproposed ordinance.'-:Mosman said that she fears that if. areferendum is held;it will Come?•-,rv.p...2=Ta).;=*,,,,..: .:=.,,,,,,.,:)..1„.,...,..-4,-.,-::•:.:•-•p;u7,,,v.:..-,•,;.. ,....:,.-...•..-: .. , .• ....••-•— ,:.- •• , ,::=•• .,.• , .- ..-,. •,-.••:- '-': ,•.:,,••,. •••, .,• • •.--••••is: •••,-, - •r••••(zi:•••.!.•.• ••agi!,-T,!.:,:zi,;.•*. '''.".'•'''''''AY•'•'•"":'''''''''•d wn to which side spends the money on publicizing their point of view: --Butcher,,-,•:; '..... .:•:•;„•:-.y,-;-; •.c...,..f!,,,••• '-.;.•:,•••'•••••'••• •••••'• •:••;•:'..:i::1-said she doesn't think the controversy will dissipate even after any ordinance is passed :y:!..,.......,.,.:? •••.,if'.' •••••••••:•:••••,..; -• -;:-..;••••:.•••-••.: ,. • • , . . . .. •.-2.-,-;••••,-; •• .... :• .' '. . :...•-..-!.•-::•,•••• -.-...,:-....:••• •;••':.:::::.,...-• :...:•• . . . . . .. ...... ... .. . . .,.. . . . , . . ., '..• 1.: ' . :••''•••• •.. Luse said that the Council must keep in mind the best interest of the entire mass of :.• -.....- . ..:::.....-: ....-... . ,.:-.. . . ••• . ' • people. He said if an Ordinance is passed, it must be all-inclusive and that there should ••• •: - •• •.• '.•,: ••• • - - not be any"half measures." Luse noted that although Duluth is often touted as being. • .,.:.• • -.. 7: •.•: .. .. . . . .. - •'' .• •• • • • completely smoke-free, its ordinance applies only to establishments that serve food, and.: •• =•:••:•:. ,--.•:-.,-::.:•!- .• „. • •;.1:,••• ,:=-•.;:.:,..,-..-•••-•-• . that stand-alone bars do allow smoking. He also warned that the City will be looking at.•:;•i,-.:.„i••,.,c.,.....•:••:=4-.:,,,, • .. ••••':,'•;•••• •• •• ••• - '..-•'',$•'-''-protracted legal expenses if it chooses to pursue an•ordinance.:•Butchersaid she doesn't*..c4.',,,r-,,,,,.4A ;, o,,,t,.: ,t 14e,1•,:e 4 ?•,CV)ffes!'rfe0p..._ ......, *f of citizens ••. -.of the •'•••-,:...;„*.f:.::,,,,•,..„...,,,i•A;;., ...''''.i. kt.•'-'••••••• e'i'••..',-',•figinmcl•• den Prairie standmg as an island,as long as•: the majority -approve p... .:,*-..-414s4.,•4..,4,•.&,,,,,,,4-.. g.r ''' alifi41-01.?1•w'''1•4•'Vz''''Y'irt:i;t11:01.'"-,r:*.g.i.',..4; rt,..t.Vtl'i.':41-7F,P4.01;',Ott.92A,----r>s•-•t•-4-,,I.,;',,'`joygiki•-#4,Ngi-•,.,,..?4-1-,,lz.-1,747,,,,,'44.-.it.:n.„-:,'-'?„-g:rr.....t.-?..1.?. ...?-t'l:.?4.g.'!,',}.',?.'-••••"•,,,..,.?.t.„.,:.."..-.:::,.„..,,,..,.1.1:=.s..f..61:;:**4.--'_.„,,..$,.,F,40-!-.,4fa..,,,,--11....pyi7,44,1„:"„,sx.,,,,, -.,........=.„:?,.,•••••,,,,,•L:'''',;...,...11' .''7"''...,..."-'77.:"`''',.,..,,,..,..-.,:4,,.''..ft.vcilgo,,:..4:45,-,44.4:4,jit,...... .,.,s..-„,,.. ...it,,,'•4,,,i.PI;. .ii„ii:,d... -'.....;,y,.,,. ..::...,.'..y..:vA',...(..:is:,..-_,,t,?.....,,,;%...0,.;,-;40y.-,...-:.,4";.,:... •se,. ... •'.A , .". 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UNAPPROVED MINUTES EDEN PRAIRIE CITY COUNCIL WORKSHOP/FORUM • TUESDAY,MAY 21,2002 CITY CENTER COUNCIL CHAMBER CITY COUNCIL: - • Mayor Nancy.Tyra-Lukens,Councilmembers Sherry Butcher,Ron Case,David Luse.and Jan Mosman - • CITY STAFF: • City Manager Scott Neal,Public Safety Director Jim Clark,Public Works Services Director Eugene Dietz,Director of Parks and Recreation Services Bob Lambert, Community Development and Financial Services Director Don Uram, City Attorney Ric Rosow, and Recorder Lorene McWaters . Heritage Room II • . I. CALL MEETING TO ORDER .. Mayor Tyra-Lukens called the meeting to order at 5:30 p.m. . IL APPROVAL OF AGENDA Mosman moved,seconded by Case to approve the agenda. Motion carried 5-0. III. SECOND HAND SMOKE City Attorney Ric Rosow reviewed a draft ordinance his office prepared for discussion. The ordinance includes: . • . . . •. . • Findings on the health effects of second-hand smoke • • A section that defines terms referenced later in-the document • • A section pertaining specifically to City-owned vehicles • General restrictions,rules of enforcement,and proposed effective date . ,Rosow said the draft was developed for the Council to use as a working document. It is designed to allow the Councilmembers to choose which portions to retain, delete and/or revise. Rosow said the ordinance is based on existing ordinances from other Minnesota cities and municipalities throughout the country. Councilmember Butcher asked how closely this draft resembles Duluth's ordinance. Rosow said he could provide a written comparison to other Minnesota ordinances for later review by the Council. Tyra-Lukens proposed holding a two-hour special meeting to hear public testimony on a possible second hand smoking ordinance. Similar to Hennepin County Board Meetings, - each speaker would be allowed a maximum of three minutes.Pro and con speakers would alternate. The Council could choose to take action at the end of the meeting or wait until the next Council meeting to proceed. - - Tyra-Lukens said she was hesitant to appoint a task force at this point.She strongly ym PP g Y believes that restricting exposure to second-hand smoke is strictly a health issue, and not a topic conducive to debate. She said she could see appointing a task force to help with implementation issues after an ordinance is passed. Luse said smoking is not just a health issue,but a personal rights issue. He was concerned about negative public perception of the Couneil deciding not to;appoint a task • force after taking action to do so at the April 16 meeting. He said if a-public meeting is _ -' . held,three minutes per speaker is probably not long enough. Tyra-Lukens noted that the public has other options for expressing opinions to the Council,including phone calls,e- mails and letters. The purpose of the public hearing should be to hear new information - and opinions. Mosman said it would be difficult for the Council to sit through more than a couple of hours of testimony, and that the public should be encourage to write and call ' as well. ' Butcher said she was disconcerted by the proposed process.=She thought the Gbuncil had agreed to discuss formation of a task force at this meeting. She wondered whose idea it was to instead create the draft ordinance that was presented. She.said this was-`..`putting - the cart before the horse." She said she was not even at the point of deciding whether or not it is the Council's role to regulate second-hand smoke. She said the first order of business is to determine how to get public input,both pro and con. She urged the rest of the Council to consider other options as well,such as holding a referendum or supporting lobbying for a statewide second-hand smoke ordinance. Rosow said that before the April 16 meeting,he had forwarded a draft motion to create a task force to study second hand smoking ordinance to Carl Jullie,who was City Manager ' at the time. The Council chose not to take action on the motion Rosow-had drafted,but • indicated a desire to discuss the issue at a Workshop. Rosow and Jullie met to discuss how to best provide the Council with a starting point for discussion of a possible • ordinance. -They agreed Rosow would create a draft ordinance that would allow-for extensive input by the Council and provides choices from which they could pick and choose. • 4:..: ,.. • .• Case said if a public meeting is held,it is critical not to make any final decisions that night. He needs time to consider the input before making any decision. He.said he was - - also struggling with some of Butcher's suggestions. His understanding from the April 16 meeting was that staff was directed to come back to the Council with recommendations on how to approach the issue. Case said a referendum works best when the choices are black and white. He said he could not envision how the public could vote on a proposed ordinance when-they maybe in favor of portions of it but not agree with other parts. He said this is one of the times when the Council is faced with clear issues of right and wrong and truthfulness. Butcher said a referendum would ask voters only whether or not they favored an ordinance,not what would be contained in the ordinance. • eTyra-Lukens reiterated that she believes regulating second hand exposure is a public health issue and that if the tobacco lobbyists are given the chance to throw money at the issue,the truth will become obscured. Butcher replied that it is also about public policy and regulating an activity that is legal. Luse said that although the Council's ultimate decisions will probably be based on the interest of public health, they cannot bypass the �`- - opinions of a whole host of others who may feel differently. Tyra-Lukens suggested using the draft ordinance as a framework for talking points for the public at a special meeting, and that the Council could announce at the beginning of the meeting that passage of an ordinance is not a foregone conclusion. Luse said the issue is too divisive to be decided by referendum. He would prefer the City conduct a survey of residents. Luse also said he felt the appearance by the"Clean Air on the Prairie"group rushed the Council into taking action on an issue it was not ready to consider. Case disagreed, saying he had been hearing from various groups and individuals on this topic for at least six months. He said the Council has taken up the issue because they feel a resonance with it. Tyra-Lukens said some of the comments made by other Councilmembers lead her to believe not everyone agrees that second-hand smoke really is a health issue. She said health professionals have known for more than 20 years that second hand smoke is detrimental to health, and that's where the role of Council as leaders comes in. It is time to do something about it. Tyra-Lukens said it is unusual as a Councilmember to hear positive comments from constituents,but that she has repeatedly been told that they are doing the right thing in considering this ordinance. Case said that he feels the accusations that have been made by some about the Mayor's alleged conflict of interest stemming from volunteer work she did over 15 years ago shows how dangerous it would be to form a task force that would include tobacco lobbyists. Tyra-Lukens asked if the Council was ready to come to an agreement.on what action to take regarding holding a special meeting. Rosow said any action would have to be taken as part of the regular Council meeting. Council agreed to add this item to the Council agenda for further discussion. • N. OTHER TOPICS - Council Chamber • V. OPEN FORUM (Scheduled participants,6:30-6:50 p.m.) No one was scheduled to appear at Open Forum. VI. OPEN PODIUM(Unscheduled participants, 6:50-7:00 p.m.) No one requested to speak at Open Podium. VH. ADJOURNMENT • CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA ORDINANCE NO. -2002 AN ORDINANCE OF THE CITY OF EDEN PRAIRIE,MINNESOTA AMENDING CITY • CODE CHAPTER 9 BY ADDING SECTION 9.42; AND ADOPTING BY REFERENCE CITY CODE CHAPTER 1 AND SECTION 9.99 WHICH, AMONG OTHER THINGS, - CONTAIN PENALTY PROVISIONS. THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE,MINNESOTA, ORDAINS: Section 1. City Code Chapter 9 is amended by adding Section 9.42 as follows: Section 9.42. Eden Prairie Smokefree Air Ordinance of 2002. This Section shall be-known as the Eden Prairie Smokefree Air Ordinance of 2002.' Subd. 1. General Provisions A. Findings and Intent. The Eden Prairie City Council does hereby find that: • (1) Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution, and that breathing secondhand smoke(also known as environmental tobacco smoke) is a cause of disease in healthy nonsmokers,including heart disease, stroke, respiratory disease, and lung cancer. The U.S. Surgeon General has determined that secondhand smoke is responsible for the early deaths of 65,000 Americans annually. • (2) The Public Health Service's National Toxicology Program has • listed secondhand smoke as a known carcinogen(U.S.DHHS, 2000,citing Cal.EPA, 1997). (3) Secondhand smoke is particularly hazardous to elderly people, individuals with cardiovascular disease,and individuals with impaired respiratory function,including asthmatics and those with obstructive airway disease. Children exposed to secondhand smoke have an increased risk of asthma,respiratory infections, sudden infant death syndrome,developmental abnormalities, and cancer. (4) The Americans With Disabilities Act,which requires that disabled persons have access to public places and workplaces,deems fft i.- 1 2. "Day Care Facility"means any building,structure or facility, including personal residences while used for any of the following `= purposes,where child or adult care is provided including but not limited to family day care homes,group day care homes,nursery schools, day nurseries, child day care centers,head start and extended day school age child care programs in or out of the child's home. 1.4 3. "Dining-Area"means any area containing-a counter or tables upon which meals are served. 4. "Employee" means a person who is employed by an employer in consideration for direct or indirect monetary wages or profit, including those employed full-time,part-time,temporary or contracted for from a third party; employee also means any person who volunteers his or her services for a business or non-profit entity. 5. "Employer"means a person,business,partnership, association, corporation,including a municipal corporation,trust, or-non-profit entity that employs the services of one or more individual persons. 6. "Enclosed Area" means all space between a floor and ceiling that is enclosed on all sides by solid walls or windows(exclusive of • doorways),which extend from the floor to the ceiling with appropriate opernings for ingress and egress. 7. "Health Care Facility" means an office or institution providing care or treatment of diseases,.whether physical, mental, or emotional, or . other medical,physiological,or psychological conditions, including but not-limited to,hospitals,rehabilitation hospitals or other clinics, including weight control clinics,nursing homes, • homes for the aging or chronically ill,laboratories, and offices of surgeons,chiropractors,physical therapists,physicians, dentists, and all specialists within these professions.This definition shall • include all waiting rooms,hallways,private rooms, semiprivate rooms, and wards within health care facilities. 8. "Mall"means any enclosed public walkway or hall area which serves to connect retail or professional establishments. 9. "Nonprofit entity"means any corporation,unincorporated association or other entity created for charitable,philanthropic, educational,character building,political, social or other similar 3 • of other products is merely incidental. t- 17."Service Line"means an indoor line in which one (1) or more persons are waiting for or receiving service of any kind,whether or not the service involves the exchange of money. 18."Smoking"means inhaling,exhaling,burning, or carrying any lighted cigar, cigarette,pipe,weed,plant,or other ebmbustible substance in any manner or in any form. • 19."Sports Arena"means sports pavilions, stadiums, gymnasiums,health spas,boxing arenas, swimming pools, roller and ice rinks,bowling alleys, and other similar places where members of the general public assemble to engage in physical exercise,participate in athletic competition, or witness sports or other events. •• 20. "Work area"means any area of a place of employment enclosed by floor to ceiling walls in which at least one employee is assigned to perform work for any employer. C. Application of Article to City Owned Facilities. All enclosed • facilities, including buildings and vehicles owned, leased, or operated by the City of Eden Prairie, shall be subject to the provisions of this Section. Subd. 2. General Restrictions A. Prohibition of Smoking in Enclosed Public Places. Smoking shall be prohibited in every enclosed Public Place within the City of Eden Prairie,including but not limited to,the following places: 1. All enclosed areas available to and customarily used by the general public and all areas of business establishments generally accessible to the public,including,but not limited to,the public areas of retail stores,banks, and other offices; 2. All reception and waiting areas; • 3. Aquariums, galleries, libraries, and museums; 4. Bars, including those in private clubs; 5. Beauty shop and barbershops; ri 5 23.Retail stores; ) 24.Rooms, chambers,places of meeting or public assembly,including school buildings, under the control of an agency, board, commission,committee or council of the City or a political subdivision of the State when a public meeting is in progress, to the extent the place is subject to the jurisdiction of the City, 26. Service lines; 27. Sports arenas, including enclosed places in outdoor arenas; 28.Theater/bar combinations; 29.Video arcades,bingo parlors,cardrooms, game rooms, poolhalls, dancehalls, and other amusement centers; B. Prohibition of Smoking in Outdoor Areas. Smoking shall be prohibited in and within twenty(20) feet of the following areas where smoking is prohibited: • } • 1. Any place where people are using or waiting for a service, entry, or a transaction, including but not limited to ATM's,bank teller • windows, telephones, ticket lines,bus stops.and cab stands; 2. Any place where food and/or drink is offered for sale; • • 3. Areas not open to the sky; • 4. Children's play areas; • 5. Entrances and exits to any enclosed Public Place; 6. Open windows of any enclosed Public Place; 7. Public events including but not limited to sports events, entertainment, speaking performances, ceremonies,pageants and fairs; 8. Public parks and gardens; 9. Seating provided by eating establishments and bars; • D. Restriction of Smoking in Hotels and Motels. Seventy-five percent ``- (75%) of the rooms in any hotel or motel shall be maintained as fixed nonsmoking rooms. E. Where Smoking Not Regulated.Notwithstanding any other provision of this Section to the contrary,the following areas shall be exempt from the provisions of this Section: kti 1. Private residences, except when used as a licensed child care, adult day care, or health care facility. 2. Hotel and motel rooms that are rented to guests and are designated as smoking rooms;provided,however, that not more than twenty- five percent(25%)of rooms rented to guests in a hotel or motel maybe so designated. •• F. Declaration of Establishment as Nonsmoking.Notwithstanding any other provision of.this Article;an owner,operator,manager, or other person in control of an establishment, facility or outdoor area may declare that entire establishment, facility or outdoor area as a nonsmoking place. Smoking shall be prohibited in any place in which a sign conforming to the requirements of Subdivision 2,Paragraph G of this Section is posted. G. Posting of Signs 1. "No Smoking" signs or the international "No Smoking" symbol (consisting of.a.pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) shall be clearly and conspicuously posted in every public place and place of employment where smoking is prohibited by this Section,by the owner, operator,manager, or other person in control of that . • place. 2. Every Public Place and Place of Employment where smoking is prohibited by this Section shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited. 3. All ashtrays and other smoking paraphernalia shall be removed from any area where smoking is prohibited under this Section by the owner, operator, manager, or other person having control of • the area. Subd.3.Enforcement 9 Employment to fail to comply ' • • posting of signs requirement , contained in Section 9.42,sub. t The fine for violation of this - provision shall be$300 plus all surcharges mandated by law. 3. It shall be a misdemeanor for any person who owns, manages, operates or otherwise controls a Public Place or Place of Employment to knowingly allow a violation of this Section to occur at the Public Place or Place of Employment.v 4. In addition to enforcement pursuant to Section 9.99, a violation of this Section by a person who owns,manages, operates, or otherwise controls a Public Place or Place of Employment may result in the suspension or revocation of any permit or license issued to the person for the premises on which the violation occurred. • 5. Each day on which a violation of this Section occurs sha11 be considered a separate and distinct violation. C. Other Applicable Laws. This Section shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. • • • D. Severability. If any provision, clause, sentence, or paragraph of this • •• Section or the application thereof to any person or circumstances shall be held invalid, that.invalidity shall.not affect the other provisions of this Section which can.be given effect without the invalid provision or application, and to this end the provisions of this Section are declared to • be severable. Section 2. City Code Chapter 1 entitled"General Provisions and Definitions Applicable • • to the Entire City Code Including Penalty for Violation" and Section 9.99 entitled"Violation a Misdemeanor"are hereby adopted in their entirety,by reference, as though repeated verbatim herein. • Section 3. This Ordinance shall become effective from and after its passage and publication. FIRST READ at a regular meeting of the City Council of the City of Eden Prairie on the day of , 2002, and finally read and adopted and ordered published at a regular meeting of the City Council of said City on the day of , 2002. 11 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL TUESDAY,MAY 21,2002 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road . CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Sherry Butcher, Ron Case, David Luse, and Jan Mosman CITY STAFF: City Manager Scott Neal, Parks & Recreation Services Director Bob Lambert, Public Works Services Director Eugene Dietz, Community Development and Financial Services Director Don Uram, City Planner Michael Franzen, City Attorney Ric Rosow and Council Recorder Jan Nelson Curielli I. ROLL CALL/CALL THE MEETING TO ORDER • Mayor Tyra-Lukens called the meeting to order at 7:00 p.m. All members were present. II. PLEDGE OF ALLEGIANCE III. COUNCIL FORUM INVITATION .Mayor Tyra-Lukens said the Council Forum has been modified as follows. Council Forum will be held the first and third Tuesday of the month from 6:30—7:00 p.m.in the Council Chamber. Please note that this portion of the meeting is off-camera.The Council Forum will consist of two parts: scheduled and unscheduled appearances. 6:30 to 6:50 p.m. is reserved for scheduled participants. If you wish to schedule time to visit with the City Council and Service Area Directors,please notify the City Manager's office(at 952-949- 8412)by noon of the meeting date with your request.The last 10 minutes of the Forum, from 6:50 to 7:00 p.m. is set aside for impromptu,unscheduled appearances by individuals or organizations that wish to speak the Council. IV. PRESENTATION OF HUMAN RIGHTS AWARD AND YOUTH SCHOLARSHIP AWARDS Tyra-Lukens introduced Harry Moran, Chair,and Phil Young,Vice Chair,of the Human Rights and Diversity Commission. Moran explained the process used by the Human Rights and Diversity Commission to select nominees and determine winners of the Human Rights Award and the Youth Scholarship Awards. Tyra-Lukens read the names of other Human Rights and Diversity Commission members and thanked Moran,Young and the other Commission members for their work. Tyra-Lukens said the goal of the Human Rights Awards is to recognize an Eden Prairie individual,non-profit organization and business that have worked to create an inclusive community spirit through their actions,activities or programs, and demonstrate that these CITY COUNCIL MINUTES May 21,2002 Page 7 IX. PAYMENT OF CLAIMS MOTION: Case moved, seconded by Luse,to approve the Payment of Claims. The motion was approved on a roll call vote, with Butcher,Case,Luse,Mosman,and Tyra-Lukens voting"aye." I X. ORDINANCES AND RESOLUTIONS A. APPROVE SECOND READING OF ORDINANCE NO. 14-2002 AMENDING CITY CODE SECTION 11.41 RELATING TO CONDITIONAL USE PERMITS FOR HISTORIC PROPERTIES AND ADOPT RESOLUTION NO.2002-104 APPROVING SUMMARY ORDINANCE FOR PUBLICATION Neal said this is an item related to the public hearing held a few minutes ago. He said this is a City code amendment to allow conditional use permits for historic designated property in the rural zoning district for office and commercial uses to encourage preservation and revitalization of the publicly and privately owned historic properties in the community. Rosow noted that a unanimous vote is required to pass an item that has 1st and 2nd reading on the same night. MOTION: Case moved, seconded by Butcher, to approve 2nd Reading of Ordinance No.14-2002 for City Code Amendment of Section 11.41,Conditional Use Permits; and to adopt Resolution No.2002-104 approving the summary of the Ordinance and ordering the publication of said summary. Motion carried 5-0. XI. PETITIONS,REQUESTS AND COMMUNICATIONS A. SECOND HAND SMOKE—THOMAS BRYANT Tyra-Lukens said the Council agreed to allow one-half hour for this item, and those who wished to speak were to have signed up on a list. Thomas Bryant, 15560 Boulder Pointe Road, introduced the speakers. John White,Pickled Parrot Restaurant, said he took special care to design his restaurant with the only smoking area in the bar.They designed and installed a smoke extraction system at great cost. He said their design was approved by the City.He said they would never have considered coming here and building here with such an ordinance. He noted that were the whole state to consider such a measure, he would wholeheartedly support it because that would put them on an even playing field.He thought the City should form a task force to look into this further in order to consider the effect on the hotel and restaurant business. Maggie Mellby, Hop's Restaurant, Bar and Brewery,was concerned about the CITY COUNCIL MINUTES May 21,2002 Page 8 effect such an ordinance would have on their restaurant. She said the bar section has a separate ventilation system. They adopted a policy that prohibits smoking until 1:00 p.m.on weekdays. She also would support a ban on a statewide level. Mike Anderson, Green Mill Restaurant,thought this would drive a wedge between the City and its merchants. He thought it is unjust and unfair. Tara Feltmann and Gary Chanen,Outback Steak House,were concerned about jobs if the ordinance passes. They presented a petition signed by people who were dining in their smoking section in the last two days. They were concerned about the ramifications to employees like Tara who are single parents. They thought the City should investigate this and look at alternatives. Chanen said he is on the Board of the Eden Prairie Chamber of Commerce, and the Board is not neutral on this issue. He agreed that this should be a state issue, not a city issue. Greg Michaels, Outback Steak House, opposed the smoking ordinance.He said he also owns a restaurant in Rochester where such a ban was put in place at the county level. He said this ordinance would create a non-level playing field for them. Kenn Rockier,Executive Director, Bowling Proprietors Association of Minnesota, said he is a non-smoker and is a registered lobbyist. He said the hospitality industry is concerned about why the City is rushing ahead on this. He urged the City to consider the ramifications. He noted they have a convention that can no longer go to Rochester because of the Olmstead County ordinance. Tom Day, Minnesota Restaurant and Minnesota Hotel Associations, said he was asked to be here on behalf of the hotels and restaurants in the City. He said the association has never received money from the tobacco industry and is neither for nor against tobacco. He said they are pro choice, and there should be smoking and non-smoking options.He thought individual business owners should make the decision as to whether to allow smoking. He said no state or city has also considered including hotel rooms. Tyra-Lukens thanked all those who made presentations,noting that businesses are an important part of our community. B. GOLF COURSE PROPOSAL Lambert introduced Mark Christianson,a PGA golf professional and an Eden Prairie resident. Mark Christianson said he was asking the City to consider a proposal to build a golf facility on 35 acres next to the Flying Cloud ball fields at the southwest corner of Spring Road and County Road 1.He said lie wants to build a facility that would cater to all levels of golfers.He wants to provide lessons and leagues and wants to make the facility affordable to everyone.He said there is limited land available elsewhere in.Eden Prairie for such a facility, and this type of project fits well in the- CITY COUNCIL MINUTES May 21,2002 Page 10 MOTION: Case moved,seconded by Mosman,to review Mr. Christianson's proposal and to direct staff to evaluate the feasibility of accommodating this request and the recommendation of the Athletic Programs Task Force within land available to the City,and report back to the Council within 60 days.Motion carried 5-0. _ s C. PUBLIC MEETING ON SMOKEFREE AIR ORDINANCE. MOTION: Case moved, seconded by Luse,to direct Staff to find a date to set a public meeting for the purpose of soliciting comments regarding our proposal to enact a smoke-free ordinance in the City. Rosow noted the Council talked about having Staff develop guidelines for such a public meeting which would include such items as the hearing officer,alternative views being presented one after another,and specific time limits as part of the guidelines. AMENDMENT TO THE MOTION:Case moved,seconded by Luse,to direct Staff to also develop a process and guidelines for the public meeting, which would include having a hearing officer to conduct the meeting,the presentation of alternative views one after the other,and setting specific time limits on the presentations. Luse said the business community explained their concerns here this evening.He read the following statement explaining his position on the issue: "This smoking issue brings into conflict many contending interests — personal health, the economic health of a community, personal freedoms, balancing majority and minority views, the role of local versus state government.Our job as a council,my job as a Councilmember,is to weigh all those factors, listen to the residents and business owners of Eden Prairie,and do what I believe is in the best interest of our community. • I can support a ban on smoking in public places in Eden Prairie, but only if it is total. • I still believe that the state legislature is the right forum for this issue— smoking regulations should be consistent statewide. • If Eden Prairie acts alone to ban smoking in public places,we will hurt some of our businesses and our own economic health as a community. • It is only worth risking some of our economic health if the protection of personal health is effective. • Half measures on second-hand smoke would give us the worst of both worlds—second-hand smoke still damaging individuals' health, and Eden Prairie businesses losing customers to surrounding communities that haven't banned smoking. The desire to compromise, to find some place where people can smoke in public, is understandable. But in my view there is no middle ground in this CITY COUNCIL MINUTES May 21,2002 Page 11 case. Second-hand smoke hurts people's health. And any action we take as a council to further reduce second-hand smoke is going to have a cost— in lost tax revenue from businesses locating elsewhere, and possibly in legal costs as we're sued for telling businesses that something we once approved is now illegal. If we're going to pay that cost, it should buy us health. Still allowing some second-hand smoke won't do that. Having some hotel rooms allow smoking and some not doesn't help the employees of that hotel avoid harmful smoke. Nor does having one corner of a bar allow smoking. On this issue, compromise will only bring confusion and inconsistency. I'd still rather see this issue addressed at the state level. That's the best place for all the contending interests and freedoms to be fully considered, and statewide law makes the playing field level for business owners,and individuals. I had hoped that Eden Prairie could avoid the divisiveness that standing alone on this issue would bring — but the debate is well under way now and let's listen to everybody and have a full discussion. And if we're going to act alone and make Eden Prairie an island, let's make sure that we've really made an island that's healthy." Butcher noted there were some concerns brought up this evening that this body had already made a decision. She said we have not made a motion,and we are still gathering perspectives through an agreed-upon process.We are going to follow that process. Tyra-Lukens said the sample ordinance on the web site was just an all-inclusive, catchall ordinance. She said that is not the proposed ordinance,but rather is a sample ordinance as a discussion point and a framework to solicit comments from the citizens. Case said he did not sense the same consensus among the Councilmembers as others in the audience did.We are still trying to draw lines,and he, for one,would like to keep the concept of a compromise open.He said he had the goal that the state would some day step up to the plate,but to get there we may have to look for areas that will mitigate some of the issues for better health. Mosman said she heard quite a few contradictory statements from the letters we have been getting and from the presentations we have heard. She would like to fmd a way to ask for documentation to back up the studies quoted or have a rebuttal from someone who would know the correct information. She would like to have confirmation of who did the study and have a rebuttal if there was one. Rosow said when the process is developed for the manner in which the public meeting is to be conducted,the hearing officer could require anyone quoting CITY COUNCIL MINUTES May 21,2002 Page 12 studies to provide data for the record to back up the information presented. He said we could have the hearing officer require that and build it into the process. Mosman said she would write up the things about which she has heard contradictions. Case said he would also like the freedom to at least question the statistics that are presented. He would like to be able to question in order to clarify the facts. Tyra-Lukens asked Mr.Rosow to work with the hearing officer to come up with the process. VOTE ON THE AMENDMENT: Motion carried 4-1, with Luse opposed. VOTE ON THE MOTION AS AMENDED:Motion carried 4-1,with Luse opposed. a Luse clarified his negative vote by restating his position that this is a state issue, therefore he voted nay. XII. REPORTS OF ADVISORY BOARDS&COMMISSIONS XIII. APPOINTMENTS XIV. REPORTS OF OFFICERS A. REPORTS OF COUNCILMEMBERS B. REPORT OF CITY MANAGER C. REPORT OF PARKS AND RECREATION SERVICES DIRECTOR 1. OUTDOOR SWIMMING POOL/WATER PARK FEASIBILITY EVALUATION Lambert said Staff is recommending the council approve a feasibility study on an outdoor water park.The recommendation would include appointing an ad hoc committee of four members from the Parks,Recreation&Natural Resources Commission,three residents at large,and one member each from the Foxjets and School District 272.The committee would work with Staff to evaluate a site or sites,and then look at a preliminary design. He said we would have to have a design and site in order to estimate the expenditures and revenues. Case thought we owe it to the residents to investigate this because of the response on the survey to this project. MOTION:Case moved,seconded by Mosman,to approve the proposed process of evaluating the feasibility of an outdoor water park,including APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL TUESDAY,JUNE 4,2002 7:00 PM,CITY CENTER Council Chamber 8080 Mitchell Road ti CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Sherry Butcher, Ron Case, David Luse, and Jan Mosman CITY STAFF: City Manager Scott Neal, Parks & Recreation Services Director Bob Lambert, Public Works Services Director Eugene Dietz, Community Development and Financial Services Director Don Uram, City Planner Michael Franzen, City Attorney Ric Rosow and Council Recorder Jan Nelson Curielli I. ROLL CALL/CALL THE MEETING TO ORDER • Mayor Tyra-Lukens called the meeting to order at 7:00 p.m. Councilmember Butcher was absent. II. PLEDGE OF ALLEGIANCE III. COUNCIL FORUM INVITATION Mayor Tyra-Lukens said the Council Forum has been modified as follows.Council Forum will be held the first and third Tuesday of the month from 6:30—7:00 p.m.in the Council Chamber.Please note that this portion of the meeting is off-camera.The Council Forum will consist of two parts:scheduled and unscheduled appearances. 6:30 to 6:50 p.m. is reserved for scheduled participants.If you wish to schedule time to visit with the City Council and Service Area Directors,please notify the City Manager's office(at 952-949- 8412)by noon of the meeting date with your request.The last 10 minutes of the Forum, from 6:50 to 7:00 p.m. is set aside for impromptu,unscheduled appearances by individuals or organizations that wish to speak the Council. IV. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Rosow said a wrong copy of the Developer's Agreement was delivered for Items VI.B. and C. He provided a corrected copy.He noted that the seventh bullet under Background Information on Item VI.C. is not a condition of the final plat and should be removed from the memorandum. Regarding Item VI.J.,Case said this is an extremely pleasant task to approve the lease agreement with Dunn Brothers.He asked if they would be selling baked goods or other food items as they discussed before.Uram.said they are going to bring in goods from a commercial kitchen.Case asked when the renovation work would begin.Uram said they expect to bring discussions back to the Council the first of July,and expect to have it open right before Thanksgiving. CITY COUNCIL MINUTES June 4,2002 Page 7 E. REPORT OF PUBLIC WORKS SERVICES DIRECTOR 1. Crestwood Terrace Area Improvements • a. Approval of Special Assessment(Resolution No.2002-1081 Dietz said the Public Hearing for this item was held earlier this evening. Staff is asking for approval of the special assessment for street improvements in the Crestwood Terrace neighborhood. Dietz noted that, since the project was expanded beyond the scope of the petition received,a 4-0 vote would be required for approval. MOTION:Case moved,seconded by Mosman,to adopt Resolution 2002-108 approving Special Assessments for street improvements in the Crestwood Terrace Neighborhood(I.C. 98-5474).Motion carried 4-0. b. Contract for Improvements(Resolution No.2002-109) Dietz said he distributed copies of the resolution to award the • contract for the Crestwood Terrace street improvements earliei:this evening. He said staff is recommending award to the lowest bidder who was S.J. Louis Construction,Inc. • MOTION:Case moved,seconded by Mosman, to adopt Resolution No.2002-109 awarding contract for I.C. 98-5474,Crestwood Terrace Area Improvements to S.J. Louis Construction, Inc. Motion carried 4-0. F. REPORT OF PUBLIC SAFETY SERVICES DIRECTOR G. REPORT OF MANAGEMENT SERVICES DIRECTOR H. REPORT OF CITY ATTORNEY 1. Protocol for Public Meeting on Smoke-Free Ordinance Rosow said his office has arranged for Administrative Law Judge Allan Klein to preside over the public meeting on June 11,2002. His office also prepared a Notice and Order for Public Meeting and a letter to Judge Klein identifying preliminarily the procedure we would use for the meeting. Rosow reviewed a proposed five-point process with the Council.The five points included: a. Each presenter shall be limited to three(3)minutes. b. Each presenter shall be required to present testimony under oath. CITY COUNCIL MINUTES June 4,2002 Page 8 c. The Law Judge would ask speakers to alternate between pro and con until that was not possible. d. The Council requested that there be backup data for factual data being presented.If factual testimony is, in fact, opinion testimony, it will be received as opinion. e. Parameters will be set regarding the length of the meeting. The meeting will start at 7:00 p.m.and adjourn no later than 10:00 p.m. If,at the end of the three-hour time period,there are additional presentations not yet heard,the Council would have the opportunity to continue the meeting to another date or possibly extend the time beyond the scheduled 10:00 p.m. adjournment. Case asked if we could take written testimony up to a certain time as a third alternative.Rosow said that was an excellent point and he would add that written testimony could be submitted. • Tyra-Lukens said she maintains that what somebody says here at a public meeting doesn't have any more weight than another person's email or phone call. She was not sure there should be a cut-off at all because that may imply we want to restrict the amount of information submitted. • Luse said we need to let all the voices be heard and that is what we are doing. He thought we have been very clear about how we were going to do it and we decided this was the best format.He didn't think we would know until that night if we will need another night or more for presentations. Tyra-Lukens said this is not the only format to let them be heard because email and calls are acceptable. Case said he would also like to have the idea out there that every voice could be heard,but it may not be heard at that public meeting. He said the purpose is to gather information but also to assist us in formulating our position,He said there is more value to us to be able to ask questions of the speaker rather than having an additional number of speakers,and he thought those two things might be at odds. Ultimately the goal is to help the five of us to arrive at a decision that is the best for the residents of Eden Prairie. He encouraged people who are not able to attend the meeting to contact the Council by another means. Tyra-Lukens asked if there is a way the Council can ask questions of the presenter.Rosow said he would add to the first item that the council may ask questions and that will be outside of the speaker's three minutes. Case thought we might also have to limit the response time.He also thought after a certain time when speakers have said the same thing,it is important that the judge says it is helpful to hear something new.He thought the judge should be able to handle that. CITY COUNCIL MINUTES June 4,2002 Page 9 Mosman said her question has been whether we plan to respond to the public as they are speaking. She thought we are not making a decision that night so we should not be expected to give our responses. Tyra-Lukens said that was how she is feeling. She said there is no ordinance that we are defending. ti Case said the State Supreme Court does this by hearing both sides and questioning each one. That is our role to take testimony and respond back. Mosman said she has received a number of phone calls and emails that have questioned whether the Council has the right to pass an ordinance on this. She asked Rosow if he could provide a statement Councilmembers could use to answer such communications. Rosow said the Council does have the authority to adopt an ordinance dealing with this subject matter and the Attorney General has so said.We can reiterate that at the public meeting and have a copy of the Attorney General's opinion on that subject available. Luse thought we need some structure as we gather this information, and he thought we are being very professional in our approach. He thought it feels a little restrictive about how we have information corning to us. He would agree that we should be able to ask questions of a presenter. Regarding the question of whether we as the Council have the authority to adopt such an ordinance, he thought maybe the answer is that it goes on a ballot in November. Luse thought we have to be sure that all the people feel they had had their voice heard. He would support follow-up questions and some all- encompassing additional time frame if needed. He said there is a whole problem with the three-minute time frame, but he would agree we have to do it that way to make the process fair. He would support scheduling another meeting in July,which we could cancel if it is not necessary, so that we get all the information needed to make a final decision on the issue. Case thought we should cross that bridge when we get there. He thought at the conclusion of the public meeting it is possible that something will come out to indicate we have received the information we need to make a decision.We could come back at the next regular meeting and raise the question of whether there was enough time spent. At some point we as a Council need to look at what we get and make a decision.An individual can reach us in various formats, so he did not think we need to allow every individual to use the format of speaking at a public meeting. He said we are promising that every position will be heard. Mosman said she agreed with Councilmember Case. She noted that some of the emails that were in the Council packets have very interesting pieces of- CITY COUNCIL.MINUTES June 4,2002 Page 10 `- information and she wondered if it would be appropriate to read some of them at the meeting,or if they should be brought in as backup for why a particular decision was made. Tyra-Lukens said she did not think everything that has been sent to the Council has to be entered into the record at the public meetini. Luse said the majority of the voices heard to date tend to be on one side of the issue or the other.He was seeing about half and half on the issue. He thought there are many people who would say this is an important individual rights issue, and we need to take a vote of our 55,000 people. He thought we would be setting ourselves up for public scrutiny if we don't go the extra mile to get the information. He thought ultimately the issue is a health issue,but he didn't want others in the community to think that the individual rights issue and all the other political issues were not heard. s Tyra-Lukens thought the issue of a referendum comes later,and she thought there would be pros and cons for a referendum. Luse said he was asking for a three-hour meeting to be scheduled in July, with the stipulation that presenters cannot duplicate their presentation from the June meeting. He thought then whatever decision gets made,we will have done everything we can to get the issues out on the table. Tyra-Lukens said she would prefer to wait to make a decision until after the meeting on the 1 1`h. She didn't want to schedule a meeting now. She thought we should get as many people at this one as we can and then deal with whether to schedule another meeting. Case said the point is the objective of the meeting is to get information on the positions,and we have told every citizen in the community that they can contact any of us at any time. He thought in the course of three hours this representative body will get the information and can then consider the next step. Tyra-Lukens said the purpose of the meeting is to determine the pros and cons of the issue.Case added that the purpose is also to help us make a decision as a governing body. Mosman asked if we would want to limit who would be allowed to present, for example,would a restaurant owner from Florida who would be against such an ordinance be a relevant presenter that we should be hearing from. Case thought it would be a slippery slope to limit those who could present. He thought having the disclosure of who they are and where they live or work would put the testimony in the appropriate light. CITY COUNCIL MINUTES June 4,2002 Page 11 Tyra-Lukens said we should ask people to sign up on a pro or con list and they will be asked to come forward alternately. She asked if we want to regulate how often anyone can speak. Case said he thought we should allow each person to speak one time. Luse said to him this is a health issue,an economic issue and an individual rights issue. He thought we will continue to receive input on the health and economic issues next Tuesday,but we have barely-begun to touch the individual rights issue. He implored the Council to go the extra mile so we can get rid of any question as it relates to the ability to communicate. He was concerned that a three-hour time frame is not going to allow us to get finalization on all three of the issues involved, and he again asked for another three-hour meeting in July. Case thought the purpose of the meeting is to get all the issues laid out. That may be done in one meeting or not,but we would decide that afterthe first meeting. Tyra-Lukens said we definitely want to get a lot of public input, and we are going after issues. She wasn't sure what more information we would get regarding the individual rights issue if another meeting were scheduled. Luse said his concern is the group of people who are concerned that this is an individual rights issue have not been heard. Case said the individual rights issue is not a gray area. He didn't think we need three hours to cover that because it is a belief statement. He thought we do need to take the time to get feed back on the health issue and look at the impact of what we do to see how it affects businesses. Luse said he was trying to eliminate the other pieces of this issue so that we can get back to where he can accept this.He believed we need more than three hours to get the information out,and the additional time could be held any time, not necessarily in July. Case noted that no one has said we wouldn't go beyond three hours. Mosman thought just bringing up the subject may trigger people who feel strongly on the individual rights issue to come to the meeting or email us. She said we should encourage them to come,as we want to hear that as part of the testimony. Luse said his concern is that only 25%read the paper,and even fewer view the cable channel. He didn't think the residents fully understand the process. He wanted to give the impression that we are going the extra mile, and that is really what the request is.He did not want it to be construed as a delay, but rather as a way to get a group of very strong views. CITY COUNCIL MINUTES June 4,2002 Page 12 Case thought everyone wants to go the extra mile,and we are saying that we are not sure the extra three-hour meeting will be necessary.We can take the meeting at face value and assess where we are at the end of the meeting. Tyra-Lukens reiterated that the public meeting is not the only way to get opinions to the Council. She said emails,phone calls and letters are all available to the public and each type of information will be given equal weight. Rosow reviewed the guidelines the hearing officer would employ at his discretion as follows: a. Each presenter shall be limited to three(3)minutes. b. The Mayor and Council Members may ask questions of presenters. The time to answer the questions will be in addition to the three minutes provided for above but never-the-less,the response to the questions should be limited to two(2)minutes.Mayor and Council Members will not respond to questions from the public at this meeting. c. Each presenter shall be required to present testimony under oath. Each presenter will be allowed to speak once. d. Each new presenter will be asked to state their name,home and business address and the name of their employer. e. Alternate between presenters pro and con on the issue.A sign-up list for both pro and con will be available and individuals wishing to present testimony should sign the appropriate list. f. After the same point has been made by several speakers,the Hearing Officer will ask future presenters to present new information,not just reiterate what has been previously said before. g. Anyone presenting factual evidence(as opposed to opinion testimony)must also present to the Council supporting data that tends to establish the facts being presented to the Council.For instance,if a presenter wishes to persuade the Council that the adoption of such an ordinance would have either a negative or a positive impact on a business sector,the presenter should be required to provide the factual basis or data that supports the claim, i.e. a survey or study measuring the impact of a similar ordinance in another city.If the factual testimony is in fact opinion testimony,the Council will receive the opinion testimony as part of the record but it should be so identified. CITY COUNCIL MINUTES June 4,2002 Page 13 b. The public meeting will start at 7:00 p.m. and adjourn no later than 10:00 p.m.If there are present at the public meeting individuals who wish to address the Council but have not had an opportunity to do so,the Council will decide at that time whether or not to continue the meeting to another date MOTION: Case moved, seconded by Mosman,to set the eight-point • process as a guideline for the Public Meeting on Smoke-Free Ordinance to be held on June 11,2002.Motion carried 3-1,with Luse opposed. Tyra-Lukens said she wanted to reiterate the fact that all forms of communication will be given equal weight. She noted that if someone chooses to send an email, it would be helpful to include their name and the other information requested of presenters at the public meeting. XIV. OTHER BUSINESS XV. ADJOURNMENT MOTION: Mosman moved, seconded by Case, to adjourn the meeting. Motion carried ,4-0.Mayor Tyra-Lukens adjourned the meeting at 8:25 p.m. CITY COUNCIL MINUTES June 11,2002 Page 2 to expend public monies for a special election or advisory election unless a specific law authorizes such an election.The decision in this case rests entirely with the City Council upon receiving the kind of public input they will be receiving this evening. Councilmember Butcher asked how Duluth was able to hold such an election.Rosow responded that he believes Duluth is a Charter City. It is governed by a Charter that may allow special elections. Eden Prairie does not have that authority. With regard to the personal rights issue,Luse asked what the mechanisms are to allow this City Council to have the public voice their opinion in this decision if they cannot hold an election. Rosow responded that it is tonight's public hearing,telephone calls and • letters.Luse asked if the reason they are not allowed to bring this issue before the community via an election is because Eden Prairie is a Statutory City and not a Charter City.Rosow said that was correct. M. PUBLIC HEARING The following spoke for a smoke-free ordinance Cindy Ellis, 635 Prairie Dive, Clean Air on the Prairie—Ellis explained that she is in favor of the smoke-free ordinance because it is the right thing to do.The ordinance is necessary to protect the health of the people. It is the government's responsibility to protect the citizens,from unhealthy undertakings. Smoking negatively affects the lives around us and it is time for the government to intervene. Non-smoking sections in restaurants do not provide an adequate smoke-free environment. Richard Woellmer, 3847 Huntington, Minnetonka,American Lung Association of Minnesota—Woellmer spoke on the problems with mitigation and the risk of second- hand smoke which is very well documented. The separation of smoking and non-smoking areas does not work due to diffusion of smoke and ventilation systems. With regard to restaurants losing business if they go smoke-free, studies show that there is no affect on businesses.Fifteen communities were studied before and after the adoption of clean-air regulations and restaurants showed no change in business.He encouraged the City Council to eliminate exposure to second-hand smoke in Eden Prairie. Wilson Bryce, 14418 Fairway Dr.—Bryce explained that he is in favor of a smoke-free ordinance.He explained that he is a licensed architect and believes there are efficient ways to accomplish execution of smoke.This could be accomplished by enacting a specific ordinance that would require specific architectural requirements.This does cost more money. The time has come when public hygiene and air quality deserves equal treatment. They must choose between proper ventilation systems or be smoke free.No one should have the right to compromise someone else's health. Jill Birnbaum,669 Nebraska Ave. E,American Heart Association—Birnbaum presented copies of her testimony and supporting research. She stressed the support of the American Heart Association of this ordinance.It will have a positive effect on the health CITY COUNCIL MINUTES June 11,2002 Page 3 `. of the citizens of Eden.Prairie. Smoking increases heart disease and the risk for strokes. Birnbaum explained that second-hand smoke exposure accelerates health issues. Birnbaum reviewed actions taken by the State with regard to this issue but said she feels this is a local issue. Linda Lackard,7034 Cambridge Lane, Shakopee—Lackard said she is in support of a strong smoke-free ordinance. She lives about ten minutes from Eden Prairie and has two children. Because of her family's healthy,they have decided on zero tolerance for second-hand smoke.When Eden Prairie passes this ordinance she will bring more of her business to this City. Beth Baker, 13297 Cardinal Creek Road,Minnesota Medical Association—Baker said she encourages the City Council to pass a smoke-free ordinance to protect people from second-hand smoke. Lung cancer is caused by excessive second-hand smoke exposure. Baker distributed a handout supporting estimates of health issues affecting children caused by second-hand smoke. Baker said she does not think restaurant owners realize that they are losing business from second-hand smoke. She explained that smoke-free ordinances do work. By making smoking less accessible, they will be creating a climate to support smokers that are trying to quit. Jill Ness, 1926 Aldrich Ave. S,Minneapolis, Hennepin County Community Health Department—Ness explained that she is a representative from the Hennepin County Community Health Department Youth Tobacco Prevention Use. Ness spoke in favor of a strong smoke-free work environment. Smoking is the leading cause of preventable deaths and second-hand smoke is the second leading cause. These issues can be addressed with a strong ordinance that will provide for a strong and healthy community: Wanda Chomilo, 9952 Lawson Lane—Chomilo said she has two concerns,the first is the effect of second-hand smoke on everyone and especially children. Her second concern is the effect of second-hand smoke on the employees of the restaurants. Small children and unborn babies are most affected by second-hand smoke. This also affects the employee's health care dollars. Chomilo said if this ordinance is passed, she feels the people in the community will be healthier. Vicki Pellair Price— 16893 Bainbridge Rd.—Pellair Price said she strongly supports a non-smoking ban. She presented a report her son did for school in 1988 on smoking. She urged the Council to have a smoke-free community. Michele Hoffstetter, 18260 Croix Wood Lane—Hoffstetter said it is a violation of their rights to allow smokers in public facilities. The ordinance would be protection for the non-smokers.Hoffstetter said she supports a smoke-free work place.This ordinance will support the right of non-smokers to not be poisoned by someone else's choice. CITY COUNCIL MINUTES June 11,2002 Page 4 The following spoke against a smoke-free ordinance Ryan Maltzen, 14327 Fairway Dr., Green Mill Restaurant—Maltzen said the issue here is to please everyone.However,he sees three different issues with the main issue being politics.A person's freedom of choice will be denied citizens and owners of businesses on how to run their business. Another issue is economics. One of the main things affected will be the impact on repeat business if smokers are driven away.-Maltzen said he does understand the health risk,however,there are many people in the area that do not know about this issue. They need to let people know about both sides of the issue.Maltzen said he has 450 signatures of people who said they would go to surrounding establishments in surrounding communities should Eden Prairie pass a smoke-free ordinance.Eden Prairie should not be used as a stepping stone to pass an ordinance that should be adopted state- wide. Tim Schallberg,4240 W. 124th St., Savage—Schallberg explained that he is a patron of Eden Prairie's restaurants on an average of three days.a week.He explained that if this • ordinance is enacted he may not patronize Eden Prairie businesses but may move on more quickly to other communities or avoid Eden Prairie establishments all together. The ban may also result in more intoxicated drivers because they will go to more house parties and not be in a controlled environment.A community cannot exist without an economic viability. Schallberg said they need to let the free market determine where the balance lies. He asked where the health debate will end. Perhaps the next thing will be to ban diesel fuel or fried foods. Greg Olson, 7373 Ann Court—Olson said he is speaking in opposition to this proposed ordinance but does recognize that something should be done about the presence of second-hand smoke. He asked that the City Council find a better way of including businesses in solving this issue. Businesses in this community provide half of the tax base. This issue does impact the health and livelihood of those businesses and employees. Second-hand smoke is a problem and many of them are interested in finding a solution that is fair to all sides. Olson said he believes this is a great opportunity to show other communities and other businesses that all stakeholders in this community work together to resolve issues. Olson asked that the Council try to determine what is fair for both sides and what is workable. He asked that they consider not only the immediate interests of the public but the businesses in the community as well. Bette Anderson, 7336 Topview Road—Anderson explained that she has waited 38 years for wonderful restaurants to come to this community. She is not a fan of smoking but she can choose to sit in a smoke-free area. Anderson said she feels it is unfair to the businesses if they pass this ordinance. She pointed out that they live in a different world now and they have different choices. Michael Anderson, 1556 Sherwood Rd., Shoreview, Owner Green Mill Restaurant— Anderson explained that as a business owner he knows the restaurant business better than anyone else.If this smoking ban is enacted, some restaurants and bars will lose business. CITY COUNCIL MINUTES June 11,2002 Page 5 Duluth is not smoke-free as it has been claimed to be.Restaurants/bars lost money in their late night hours. The income tax sales for these bars have not been compromised.It has gone from casual dining to bars.Anderson explained that there is a restaurant like his six miles up the road. If this ordinance passes,he will Iose 15 percent of sales. Late night sales will encompass a loss of$90,000 per year.Anderson pointed out that he employs 75 people in the community. Case asked where Anderson got the 15 percent number. Anderson responded that he did receive that information from an owner of a restaurant. Duluth is not a smoke-free community,smoking is allowed in bars. Luse asked where they could gather the information Mr.Anderson is talking about. Looking at the sales tax,it appears that the Duluth business community was not impacted by the smoke-free ordinance. However,Anderson indicates that it has simply shifted from one business to another. Eden Prairie is different in that they are talking about a smoking ban and the City has no freestanding bars. Butcher asked how high the standards would have to be for a ventilation system to have healthy air.Wilson Bryce,Engineer, responded that the design would have to be looked at by a mechanical heating and ventilating engineer. There are environments in which air quality is controlled,however, this does mean isolation. Environments would have to adhere to very strict criteria but it is possible. Frank Thomas, 9785 Garrison Way—Thomas said he feels there are ways this can be enforced other than taking the rights away from business owners. Restaurant owners have invested time and money into their establishments. Thomas said he believes in a statewide ban.If it is a local ban,people will go to other communities. Also,restaurant owners have more of an investment than bar owners.Thomas stated that he appreciates and respects the right to have clean air but he also respects the business owner and they should be given the opportunity to run their business as they see fit. Robert Glen,5023 Lincoln Lane,Edina, Champps Restaurant—Glen explained that he was in the California area when they did the statewide smoking ban.He said this should be a statewide ban that would put them all on the same playing field. Glen said he believes he will lose 10 percent of his business that will go to other establishments. If he does lose 10 percent of his business he will survive.However,he will also have to cut 10 percent of his employees. Glen asked if the City will help those people that will lose their jobs. Maggie Melby, 12806 43`a St.,St.Michael,Hops Avado Brands—Melby said she has received a lot of information this evening and does understand the negative affects to the businesses.They need to get more information and data so that they can better educate everyone. She asked if there are any options to the ban. One option would be to look at a more intense ventilating system as previously discussed.Melby said some businesses would be willing to spend all of the money necessary to make their ventilating system more efficient so they can keep people in their establishments.Melby also suggested looking at time restraints. She indicated that she does not allow smoking in her establishment during lunch.Those restaurants that want to go smoke-free could and they CITY COUNCIL MINUTES June 11,2002 Page 6 could notify the City so that they would know which establishments are smoke-free and those that are not. Melby asked that they all work together. Gary Chanen, Outback Steakhouse—Chanen explained that he is the managing partner of the Outback Steakhouse in Eden Prairie.He pointed out that cigarettes are sold at the Eden Prairie City owned municipal liquor store for$4.70 per pack.Chanen said that as a business owner he is getting a mixed message in that it is not okay to smoke in his restaurant but the City can make a profit in selling cigarettes. Also,the City paid$10,000 for a lobbyist to stop grocery stores from selling wine. Perhaps they could provide the restaurant owners with some money to protect their interests. Chanen said he realizes that alcohol does not affect people as second-hand smoke does.However,drunk drivers do affect the City. Chanen stated that this ordinance isn't just about money.The restaurant owners stand to lose a lot.When Olmstead County adopted a smoke-free ordinance,the Rochester Outback restaurant's revenue dropped 1.5%,about$100,000. Chanen said he is sensitive to the issue of second-hand smoke and he proposes that anyone 17 years old or younger not be allowed in designated smoking areas.He also suggested that all bars and restaurants in the City not be allowed to sell cigarettes.The City and restaurants could also agree on a percentage or number of seats allowed in a smoking area.Chanen pointed out that they are in the hospitality business and not part of the tobacco industry.If they cannot make it a statewide ban then they need to reach a compromise. Tola Marts,9201 LaRiver Court—Marts said she has examined this issue and has looked for information on concerns and questions. She questioned how many Eden Prairie residents have died from second-hand smoke.She then asked how those rates would change should this ordinance pass. Marts explained that she is not opposed to the idea of the ban but they need to do more research.It is her personal opinion that additional • information is needed prior to adopting such an ordinance. RECESS A short recess was called after which the meeting was reconvened at 9:00 p.m. The following spoke for a smoke-free ordinance Jean Michaels, 1751 8th ST. SW,Rochester,Olmsted County—Michaels explained that she was Chair of the Olmsted County Board when their smoke-free ordinance was adopted.This presented her with an opportunity to be very well educated on this issue. She really understands the problems with second-hand smoke health issues. She is also very concerned about the employees of the restaurants and children affected by second- hand smoke.Michaels stated that their community had 24 opportunities for public input. They did receive opposition from the hospitality industry.The ban did pass by a 5 to 2 vote.Michaels said they have had no problem with enforcement issues.She explained that they have approximately 300 non-smoking restaurants.Michaels said it was not an easy process but has been working well for them. CITY COUNCIL MINUTES June 11,2002 Page 7 Cathy Meyer,9427 Clubhouse—Meyer explained that she is the owner of the TLC Café and Catering. She has learned from what her customers want. They have no smoking at her establishment. It is a small establishment and they do not serve liquor.Meyer said they listened to their customers. They did lose one regular customer when they became a non-smoking establishment. Meyer said that by adopting this ordinance they will also send a message to the kids of the community that smoking is not okay. She said she feels that people from surrounding communities will come to Eden Prairie to be able to go to a smoke-free establishment.Meyer encouraged the Council to not let politics or their political agenda get in their way. Fred Nobrega, 1118 Skyline Dr., Rochester—Nobrega said he feels the Council has a political responsibility to pass this ordinance. Comments have been made regarding a statewide ban. California started with local communities banning smoking that began the development of the statewide ordinance.Nobrega said he wanted to reaffirm that there areonly two methods to deal with second-hand smoke; the first is a proper ventilating system and second,pass a smoking ban.It has been stated that there would be a 30 percent drop in restaurant revenue. Dozens of studies indicate that that does not take place.Nobrega stated that from a public health point of view it is important to recognize that government does protect people from other conditions and it is their regulatory duty. Kurt Nisi, 5201 Blake Road, Edina,Radiation Oncology—Nisi explained that the majority of his patients are lung cancer patients. Statistics are important and should be kept in mind. Approximately 3,000 people die per year of lung cancer from second-hand smoke.Nisi reported that an average of one to two of his patients a year who have lung cancer had no other risk factors other than being exposed to second-hand smoke.The only way to reduce this is through prevention. The Council can take an important step in helping reduce the number of people who die from lung cancer by passing this ordinance. Restaurant employees and patrons should not be exposed to dangerous chemicals and cigarette smoke.Nisi said restricting smoking in public places would show smokers that smoking is a dangerous habit and the ban would be a constant reminder that smoking is harmful to themselves and to others. Romelle Jones,200 Cedar Ave.,Moose Lake—Jones said she is the owner of a restaurant in Moose Lake and that is the first city in the State to pass an ordinance banning smoking. Jones reported that the no-smoking ordinance has not affected her business in a negative way.They still receive compliments on how wonderful it is to eat in a smoke-free environment.Jones said they have never had a problem with enforcing the ordinance. She stated that everyone has a right to clean air. Pastor Rod Anderson, St. Andrews Church, Eden Prairie—Anderson explained that smoking is a problem for their church during wedding rehearsals and weddings. The outside ashtrays are heavily used.The second largest problem for this church are the funerals.He explained that he is with people who are dying from cancer and many times the cause is from smoking.Anderson said he is here because of the death of the former Mayor. She had a passion and a cause.Anderson said he feels this community needs to CITY COUNCIL MINUTES June 11,2002 Page 8 `- do this together but someone must do it first. They are talking about lives and it is a public matter.They are in a unique place at a unique time to make a unique difference. Anderson encouraged the Council to support the cause of the City's former Mayor Jean Harris. Nancy Arieta, 10785 Valley View—Arleta explained that she lives in a senior coop and she took an informal poll of the 94 units.A large percentage of the residents are in favor of having a smoke-free Eden Prairie. Tonight's testimony has shown that people don't want government control.Arieta pointed that the government already controls the cleanliness of the restaurants.It is a necessity and a government thing to do. The following spoke against a smoke-free ordinance James Wilson,9661 Hampshire Lane—Wilson explained that after smoking for 44 years he has quit and this was a personal decision. He said he feels government should not get involved in the running of business.Let the business make their own decisions and let individuals make their on decisions.Wilson said he feels if this ordinance is adopted, it could lead into other things. John White,Pickled Parrot Restaurant—White reported that he is the founder and partner of the Pickled Parrot Restaurant in Eden Prairie. He explained that he has spent a lot of money in the development of the Pickled Parrot and had he known that the City was considering this ordinance he would not have chosen to build in Eden Prairie. They chose this site because they feel this is a fine City and they hoped to provide finer dining in the City. White explained that they would have to give up to 25 percent of potential business if this ordinance is adopted.He said he fmds it interesting that the hotels in this City would be required to have 75 percent of their rooms non-smoking and 25 percent smoking. White said he made a contract with the City when he moved here and the City made a contract with him. He indicated that he feels betrayed and the City will be changing the rules of the game.White said the business owners deserve the same care and consideration that the hotels will be given. Kenn Rocklet,516 Clover Leaf Drive,Golden Valley,BPAM—Rocklet explained that he is the Executive Director of the Bowling Association.He stated that they have been discussing restaurants as if they are public places.They are private businesses open to the public.Rocklet said he feels the decision has already been made.If the Council were really serious about wanting input they would have done what other cities did in the State; they would have established a task force. This is a political issue. Rocklet asked where this was going to end.He said the residents should be allowed to vote with their feet. They have the choice of not going into the facilities that do allow smoking.Rocklet asked that the Council think about the people who would lose their jobs and possibly their livelihood. Amy Borseth, 1605 E. 86th St.,Bloomington,Outback Restaurant—Borseth explained that she is a non-smoker and has asthma and she chooses to work in a restaurant that has CITY COUNCIL MINUTES June 11,2002 Page 9 smoking and non-smoking sections.Borseth said she enjoys working in Eden Prairie and does not want to have to move to another city because she is unemployed. She stated that she does most of her business in Eden Prairie because she works in that city and if she were employed in another city she would not do her business here.Borseth pointed out that the employees make the choice of where they work and if they felt smoking was a risk to their health they would choose to work at another establishment.Borseth said smoking needs to be banned at the state level and not the local level. Caryl Hansen, 10200 Hilltop Road—Hansen stated that she has lived in Eden Prairie for 36 years and does not smoke and finds it offensive. Hownur, she does not agree that smoking should be outlawed in restaurants. The majority of people in this City are above average intelligence and they can make their own choices. Hansen indicated that people have stated that the Council needs to protect its citizens but what about loud music. People should then also be protected from hearing loss. Hansen said it was an insult to her intelligence that she does not know enough to avoid places that are not healthy for her. Camille Crespo, 8590 Magnolia—Crespo asked if the smoking ban is passed would the City discontinue selling cigarettes in their liquor stores. She indicated that she purchased three packs of cigarettes in Eden Prairie today and the City store was the most expensive. Crespo said she is a firm believer of the American way and they should have the right to do what is right and what they want to do.Crespo said she feels the smoking ban would hurt the community. EXTEND MEETING TIME MOTION:Butcher moved, seconded by Luse, to extend the public hearing time to accommodate all of the speakers. The motion carried, 5-0. The following spoke against a smoke-free ordinance Michael Rush stated that he felt the City Council is not holding a public hearing but rather they have been treated with an unbelievable presentation from professionals enforcing this issue.This whole evening has been the issue of smokers' rights versus non-smokers' rights.This is a clear case where one group is trying to press their will on another group. Rush said it has been stated that smoking is dangerous,we know that. The question is who is going to make the decision as to whether or not an environment is allowed to have smoke or an individual is allowed to go into that environment. Rush explained that the people can vote with their feet.This has nothing to do with rights of one person or another. Either the City will get involved or it will let the marketplace take care of it. Rush encouraged the Council to examine the community in which they live. This is a conservative town. CITY COUNCIL MINUTES June 11,2002 Page 10 The following spoke for a smoke-free ordinance Marie Herman, 7260 Steward Dr.—Herman explained that hers is an emotional appeal. She has had four family members pass away from cancer.If this ban can prevent one person from one family from suffering from losing a family member or friend it should be adopted. ti Deb Lillegard, 14384 Westridge Dr.—Lillegard said she is a cancer survivor and works in health care with cancer patients.Eden Prairie is a safe and growing community and she believes it is the duty of the citizens to keep our community safe.Lillegard indicated that it is important to realize the dangers of second-hand smoke. She strongly urged the City of Eden Prairie to hear the majority of the voices of the community asking for a healthy environment. Chris Tholkes, 804 Concorida Ave., St.Paul,American Lung Association of MN.— Tholkes encouraged the Council to pass some significant restrictions on smoking in Eden Prairie work sites. Second-hand smoke is a serious public health problem. Stacy Pearson, 13222 Buch Lane—Pearson explained that she did work in a smoking restaurant and did notice that her health decreased.As a restaurant worker,she did not have the choice to stay in a smoking or non-smoking section.With regard to ventilation, Pearson pointed out that it would take 100 square feet of building area per smoker to dilute the air enough. Pearson presented to the Council statistics regarding ventilation systems.Pearson said she would like to see this ban enacted in Eden Prairie. Kathy Iverson, 5410 York Ave.,Edina,Hennepin County Prevention Coalition and Hennepin Medical Society Alliance—Iverson pointed out that many deaths occur each year from second-hand smoke. She asked the Council to make an immediate effort to eliminate exposure to second-hand smoke. They need to protect the health of the people that work in the establishments. John Graham, 322 W. St.Louis River Road, Cloquet—Graham explained that he owns an auto repair shop and golf range in Cloquet.Cloquet does have a smoke-free ordinance and they have not experienced any negative effects from this ban. Graham pointed out that tobacco does not control Cloquet's economy. Renee Whisnant, 9109 Terra Verde Trail—Whisnant stated that tobacco smoke is poisonous and she questioned why they are letting people poison their air. Each year 65,000 people die because of second-hand smoke.As a community,they have an obligation to prevent this deadly exposure. This will also give the smokers in the community the support to quit smoking. JoAnn Wroblewski,9060 Cedar Forest Road—Wroblewski said she works in a smoke free workplace and everyone loves it.This is a great opportunity and the City could market it.If this smoking ban is adopted Eden Prairie would be the place to be. CITY COUNCIL MINUTES June II,2002 Page 11 Wroblewski said she fully supports adoption of this ordinance and encourages the Council to do the same. Peggy Aguilar, 10108 Mead Lane—Aguilar indicated that she is in support of the smoke- free ordinance primarily because of the health issues. She truly believes this is something she can do to prevent her chances of getting lung cancer and stated that her f .mily supports this issue as well. Leslie Ellis,10860 Forestview Circle,—Ellis stated that he is involved in the organization . Clean Air on the Prairie. They have heard many arguments both for and against the proposed nor'-smoking ordinance but the fact remains that second-hand tobacco smoke is hazardous to our health. Ellis pointed out that poison toxic materials in tobacco smoke shows up in blood streams of non-smokers in the work place. It has been suggested by the restaurant industry that we should reach a compromise and that restaurants should be allowed to enclose a smoking area for smoking customers.Ellis explained that research has shown that ventilation required to remove nicotine concentration would result in an air velocity rate of a tornado. Ellis said they must take drastic measures now to help rid the City's public places and work places of tobacco smoke. If they don't act now then our children and their children will pay the price with health and dollars for years to come. Paul Wilson, 1204 5th St.,Rochester—Wilson stated that he wanted to respond to two issues. The first is the issue of a referendum. Counties cannot have referendums and the City of Rochester did not vote 7-0 against a smoking ban and they did not table a city smoking ban. They did nothing,they did not act. Under State statute, county boards basically serve as the Board of Health within their jurisdiction.Wilson said he feels it is not a stretch for any government body to look at safety concerns or issues and it is not at all improper to investigate a no-smoking ordinance. This is a decision this Council will have to make and it is not an easy decision. This is not an issue of your right to smoke,it is a responsibility. The issue is responsibility and how we as a society will handle second- hand smoke. Pete Dehnel,6700 Cornelia Dr.—Dehnel strongly encouraged the Council to adopt the proposed ordinance and to take the opportunity now to help save the lives of people who live or work in Eden Prairie. This ordinance is the most effective way to protect non- smokers in the community. The Council is in a position of leadership and this is a wonderful opportunity to impact the health of the residents. Steve O'Neal,228 S. 19th Ave.,Duluth—O'Neal said he appreciates the process the Council has developed in considering this Ordinance. He wanted to clear up some misstatements regarding Duluth's process.There was only one referendum and two ordinances passed.After the second ordinance was passed opposition did collect signatures. Two questions were placed on the ballot and both passed by over 61%. O'Neal said with respect to restaurants closing because of the smoking ban, since the original ordinance and referendum passed they have had several new restaurants open. An ordinance was passed that allows bar/restaurants to stay open until 3:00 a.m.They are CITY COUNCIL MINUTES June 11,2002 Page 12 constantly in competition with their sister city in Superior. Chelsea Anderson,9309 Cedar Forest Road—Chelsea said she looks forward to the possible impact of this ordinance.They will be enhancing the lives of the people in the community and they appreciate the efforts the people have taken to make work places smoke-free. ti Karen Nordstrom, 9123 Forest Hills Circle,Bloomington—Karen pointed out that surrounding communities have adopted policies making parks smoke-free. She feels that should Eden Prairie adopt this ordinance Bloomington will be following.Karen said she appreciates the efforts of the City of Eden Prairie. Ann Deshler,6621 Galway Drive—Deshler explained that she is an oncology nurse and stated that a lot of people have no clue of the effects of second-hand smoke.It is clearly a health issue. Deshler said she and her family have made the choice to discontinue patronizing establishments that allow smoking. She asked that the Council adopt the proposed ordinance. V. ADJOURNMENT The meeting was adjourned at 10:55 p.m. APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL TUESDAY,JUNE 18,2002 7:00 PM,CITY CENTER Council Chamber 8080 Mitchell Road .1 CITY COUNCIL: Mayor Nancy Tyra-Lukens,Councilmembers Sherry Butcher,Ron Case, David Luse and Jan Mosman CITY STAFF: City Manager Scott Neal,Parks&Recreation Services Director Bob Lambert, Public Works Services Director Eugene Dietz, Community Development and Financial Services Director Don Uram,City Planner Michael Franzen,City Attorney Roger Pauly and Council Recorder Theresa Brundage I. ROLL CALL/CALL THE MEETING TO ORDER Mayor Tyra-Lukens called the meeting to order at 7:00 p.m. All members were present. II. PLEDGE OF ALLEGIANCE III. COUNCIL FORUM INVITATION Mayor Tyra-Lukens sail the.Council Forum will be held the first and third Tuesday of the month from 6:30—7:00 p.m. in the Council Chamber.Please note that this portion of the meeting is off-camera.The Council Forum will consist of two parts: scheduled and unscheduled appearances. 6:30 to 6:50 p.m.is reserved for scheduled participants. If you wish to schedule time to visit with the City Council and Service Area Directors,please notify the City Manager's office(at 952-949-8412)by noon of the meeting date with your request. The last 10 minutes of the Forum,from 6:50 to 7:00 p.m.is set aside for impromptu,unscheduled appearances by individuals or organizations that wish to speak the Council. IV. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS City Manager Scott Neal said Staff requests moving discussion on smoke-free air ordinance(item XIII.A.1.)to last item on the agenda so that the two items following it may be heard first. The agenda would therefore be amended to reflect item XIII.A.1. DISCUSSION ON SMOKE-FREE AIR ORDINANCE to follow item XIII.D. REPORT OF COMMUNITY DEVELOPMENT AND FINANCIAL SERVICES DIRECTOR. MOTION: Butcher moved, seconded by Mosman,to approve the Agenda as published and amended.Motion carried 5-0. V. MINUTES A. CITY COUNCIL MEETING,TUESDAY,MAY 21,2002 CITY COUNCIL MEETING June 18,2002 Page 11 and next year,and balance donated by EFT and the Chamber of Commerce). Council members indicated they would be supportive of the economic initiative. MOTION: Butcher moved,seconded by Case,to approve the Professional Services Agreement with Endurant Business Solutions for the City Website. Motion carried 5-0. D. REPORT OF PUBLIC WORKS SERVICES DIRECTOR E. REPORT OF PUBLIC SAFETY SERVICES DIRECTOR F. REPORT OF MANAGEMENT SERVICES DIRECTOR G. REPORT OF CITY ATTORNEY H. REPORTS OF COUNCILMEMBERS 1. Proposed Smoke-Free Air Ordinance Mayor Tyra-Lukens gave a review of the history of discussion on development of an ordinance thus far. She said information to inform citizens about this issue has been distributed and received via an interactive web forum,published notices in newspapers, TV and radio coverage, e- mails,phone calls,and face-to-face opinions with Council. She wanted to clarify that although there are allegations a decision has been made,that is not the case. A sample ordinance has been drafted,but no decision made. She requested discussion on whether the Council wants to move forward at this time. Mosman said she thinks a lot of feedback has been given and the medical part of it is well documented,but we will do what we can to look at helping the restaurant owners overcome economic unfairness.She said she would like to go ahead with an ordinance. Butcher said she wants to move forward with an ordinance that involves potential for compromise with the business community—a compromise where we can provide some positive health environment to patrons of restaurants,but figure out a way to work with the restaurants. Case said it's time to take the lead and pass a ban.He said he can support a ban that involves some type of safety net for bar-type restaurants and businesses.He said a lot more data is needed,but there is a workable compromise.He said his goal is not to remove all smoke from bars,but to keep it negligible in smoke-free areas. Luse said it's as much a political issue as it is a health issue and read the following prepared statement: "Eden Prairie Smoking Ban,Survey Research—David Luse position CITY COUNCIL MEETING June 18,2002 Page 12 I am a reluctant supporter of a ban on smoking in public places in Eden Prairie. But before making any decision,I would like to see our citizens' views more accurately represented through scientific public-opinion research. In an issue with so many conflicting interests—personal health,the economic health of a community,personal freedoms,balancing majority and minority views,the role of local versus state government—I wilt always err on the side of health and safety. That's why I would support a ban.But I am a reluctant supporter because what I was afraid would happen is now happening —our community has become a battlefield for contending parties outside of Eden Prairie and the issues are being obscured by lobbying campaigns. The issues we're hearing about most, through organized efforts,are health or economics, while important viewpoints cn individual rights and the role of government aren't heard as easily. I would like more clarity about what our citizens think and want before we make a decision on this smoking ban.I believe we should commission solid public-opinion research by an independent firm on what Eden Prairie residents want. This could be completed in a matter of weeks, or months at most, and we have no need to rush to judgment here. A scientifically drawn sample cannot be influenced by lobbying campaigns that are more"astroturf"than grass roots. The results cannot be influenced by packing a town meeting with supporters or sending the City Council form letters from outside the community. I do not want to put off a tough decision. We will all have to make that tough decision—that's our job. And I believe we should make that decision once,and not leave open the confusing possibility of reconsideration. But I do want to make the decision with as much information as possible. Our city attorney has said we cannot hold a referendum on this issue,but we can do some research. The results won't automatically determine how we vote, because it's still our responsibility to weigh all the factors involved. But we'll make a better decision with better information. The questions asked of a representative sample of Eden Prairie residents should be simple and clear. Should we ban smoking in public places or not?If we're looking for workable compromise,at most we could ask if people would support a window of time where smoking would be allowed,a few late-evening hours on weekends in bars.We should be careful not to confuse the issue with sunset provisions and phase-ins and phase-outs. Let's take the time to get this right." Tyra-Lukens said an analysis that was done of speakers at the June 11 meeting showed there were an equal number of proponents from within and outside Eden Prairie; and there were an equal number of opponents that were within and outside Eden Prairie,so both sides had people outside the community. However,there were more proponents living within Eden Prairie than there were presenters that were opposed to the ordinance. She said there is also an argument to be made that restaurant sales and liquor sales may increase at these restaurants. Concerning the issue that the Council is `moving too fast,' Tyra-Lukens said she does not think we're rushing it at all because it's an issue that's CITY COUNCIL MEETING June 18,2002 Page 13 been out there for a long time and discussed in many communities throughout the United States already. It's not a surprise. So,at this point, Tyra-Lukens said it sounds like we have five people who would be willing to move forward with the sample ordinance. Butcher said she would like to postpone discussing details of/an ordinance until in a workshop environment. Luse asked if Council would entertain a public opinion poll of an ordinance to help shape the ordinance. Case said a survey would not lead us into a compromise of all the details of an ordinance. Butcher said we need to talk about a process to follow, come up with a timeframe, then re-evaluate it and put it on the website to let everyone know. Mosman said doing a survey would depend on who writes the questions. She said she doesn't know if we'd get a true read with a survey. She said she would not want to put it off with a survey and we need to take it on with the input we have. Case said he would weigh against a survey; it would be meaningless data in the context of the question asked that would not help to move forward. He said his decision on this issue would be based on the trust people have • placed on him as a leader. He said he's ready to talk and suggested layout of a timetable tonight. Tyra-Lukens read a memo from Joe Stoebner of the Eden Prairie Chamber of Commerce who proposed creating a three-person committee representing Eden Prairie restaurant and bar owners.He offered to have this committee look at the proposed ordinance and make suggestions as to what restrictions the business community may be able to accept and make recommendations for areas of change if they felt these areas would adversely affect the restaurants and bars. Luse noted that any compromise would need to be defined specifically. Council agreed to set a workshop July 2,2002 at 4 p.m. Tyra-Lukens said questions will be submitted to Staff about specific issues and those questions will be answered in the context of the workshop. She said we will try to construct an ordinance from the ground up using this as a framework, and whenever we get to an issue where there's not consensus,we will move to the next one so that we can get to the point where we have some sort of order with a few things that still need to be addressed. She said whatever the Chamber committee brings forth will be looked at on an advisory level just as we'd get advice from anybody in the process. Mosman encouraged the Chamber to expedite their process. CITY COUNCIL MEETING June 18,2002 Page 14 Tyra-Lukens stated there is a level of compromise that everybody has concerning this issue and we need to go into it using a consensus building process. Neal asked that as we get ready for the workshop, all questions be submitted to him to make sure they'll be routed to the correct Staff person. XIV. OTHER BUSINESS XV. ADJOURNMENT MOTION: Case moved, seconded by Butcher, to adjourn the meeting. Motion carried 5-0.Mayor Tyra-Lukens adjourned the meeting at 10:16 p.m. . A, . -UNAPPROVED MINUTES - • • :.. . .. • EDEN PRAIRIE CITY COUNCIL WORKSHOP/FORUM,.:�_j z, ,� ' - 4 i • - TUESDAY,JULY 2,2002 _- •- :CITY CENTER - . • 4:00-6:25 PM,HERITAGE ROOM II • 6:30—7:00 PM, COUNCIL CHAMBER- CITY COUNCIL: V Mayor,Nancy Tyra-Lukens,Councilmembers Sherry Butcher Ron Case David Luse and y . � � a3 c).�z•.a>_� .s .av t�:�.i.f}�?:a�:3 'CY,4'.'.•ICY;ti j z,.. !J.�:}>--rr'rr f3.,3'FE,?6 Jan Mosman tfa CITY STAFF: . . .. . . . . , • City Manager Scott Neal, Public Safety Director Jim Clark, City Attorney Ric Rosow, and ,Recorder Lorene McWaters • . • • • _ ., . , Heritage Room II . ,, • I. CALL MEETING TO ORDER : • . - • . . 'Mayor Tyra-Lukens called the meeting to order at 4:10 p.m....,. ., i • . - IL APPROVAL OF AGENDA • r • • III. SMOKE-FREE AIR ORDINANCE DISCUSSION City Attorney Rosow said he had arranged to make changes to an electronic version of the draft smoking ordinance on a laptop computer as they were discussed by the Council. - -The document was also projected onto a screen so that the Council could actually view • • the changes as they were made. . ' , Councilmember Luse said he wanted to get the City Attorney's input on the recent • . ' MPAAT ruling before discus g a "2: ` };;;•,, . r <.. ) sin .he'ord 0.9.e;,'City.Attorney.9m. said in 4iis o 44 : ,,., +•�t •.tea,,-.w.....•.a•.),�.:.i; is Ua:+;��+:•E:i+�.::n.ia;a.• r�• 1^ t.,a V i , �' � +' S-�. :•.�£ L:S:+.a. , !.ii isis$K!'�s'rfsr.-..1i^�:.�:::»•w..i'*�ti;:• ;�y? , ii a_@,•-;.• .t ,.f 'j pthe,MPAAr5m1mg does not;affect the,Eden Prairie City.Council's process in ado _ . -;''r'`' • s. . .) .. - . ., i? .• •t}r... -�:. . . r' . t w. t 3 Pting a:��.-�••z.4.:��.�:�;:,, - smoke-free air ordinance. • , ... .. 'r<'•: •'� - ';> Y�t> ;;::;i,�;2fs i..a?,3ii:. u:s";.;`f i.a ta.. ^•t; ... >,i.%:i.,'S*�.5. -• =. :x _ . • :Luse said•he had consulted his personal attorney;regarding the MPAAT ruling and he had.•::' - • several concerns,including the use of public.money inrcase the City haito defend itself , • - . in a law suit. Luse said he was also concerned as a businessperson about MPAAT being involved in activities that were ruled"illegal." He said as an individual he was uncomfortable with the reported$199,000 MPAAT used(through grants to the American Cancer Society)to lobby Eden Prairie for smoki ang ordinance. Luse said he would recuse himself until he"receives clarification on what a judge termed illegal activities." - Rosow said that since the City was not named as a part to the referenced suit,the court's decision does not affect actions of the City Council. Rosow further stated that he believes the ruling has repercussions only on the way in which MPAAT functions as an. . . organisation. _ 3 , Council Worlahop Minutes—July 2,2002 - • Page 2 _ Mayor Tyra-Lukens suggested that discussion of the ordinance was still possible since no formal actions were to be taken on at this Workshop. Luse stated again that he would not _�` participate in any discussion of an ordinance until he is assured there is no issue of `` legality; He said he was excusing himself from the Workshop and portions of the Open Forum dealing with the smoking ordinance, and would rejoin the Council at 6:50 in the Council Chamber. . Councilmember Mosman asked Luse why he had not brought up his concerns to the City .e T.•'= = : =:ter:=: �'Maer,`the Mayor or.the City'Attorney before the meeting began:::,Lusereiterated he was not going to subject"his family or the Council to what I think is an illegal'activity." Councilmember Case said that in all of his years on the Council,"the buck has always legally*stopped with the City Attorney." He asked, since Rosow indicated the discussion Could.take place,why this instance should be any different. He said it seemed as if Luse • was holding the advice of his personal attorney at a higher value than the City Attorney's. Case agreed with Tyra-Lukens that the point at which Luse might reasonably recuse himself would be when action is actually taken on an ordinance. • • Luse said he had been told the City could not hold a referendum_on a smoking ordinance, and the Council had rejected his idea of gathering scientific data on which to base a decision. Luse then asked Rosow if he had read the actual MPAAT ruling.-'Rosow said : - he had read news accounts of the ruling. Councilmember Butcher said she was concerned that the Council had not had a chance to read the ruling. Case said he wished Luse had called the Mayor or City Manager to convey his concerns before the meeting. He said Luse's actions seemed theatrical to him. Mayor Tyra-Lukens suggested the Council take a short recess during which a copy of the ruling could be obtained from the Internet.Rosow could review the ruling and report on it to the Council after the recess. The meeting was recessed from 4:35 p.m. to 4:50 p.m. ' <, i t & x•12osow said opinion'had not changed as a result of reading the.court riling on n> :<:.:�:• . ° #s •MPAATT 'He reiterated that'a`case pertains only to those'whojar"enamed as part of the.. . . .case. Therefore,this ruling does not prohibit the City from proceeding with discussions• • on a smoking ordinance.. Rosow said the portion of the rulin• g to which Luse referred • . :'s''`. ;;, t,stated that the way in which MPAAT was sp• end• ing funds`was'"without legal'or factual • •. justification. Rosow said,in-essence,the court was slapping MPAATs hands: He said • nothing in the decision indicates the Council cannot discuss and pass an ordinance. Councilmember Butcher said she questioned whether or not the fact that MPAAT money . -• . was used to lobby Eden Prairie would be problematic if the City passes an ordinance. Rosow said he did not believe there was a legal basis to prevent the council from discussing or enacting an ordinance. He said,`Being lobbied,.doesn't incapacitate you as a Council.,. • Luse reiterated that he was concerned about whether Or not the City could be sued,and he • asked how much the Council is willing to spend on this issue and the Flying Cloud -Council Workshop Minutes—July 2,2002 - - .• Page 3 - _i�Airport: Case responded that he believed a compromise on,a smoking ordinance that •( ) not.requ would suit all parties involved was possible, and that it would ire any legal expenditures.-He said, 'We can't not act because we are afraid of being sued." Luse said he had told the Council two months ago that he felt the Council should have • delayed any discussion on a smoking ordinance until after the MPAAT ruling was received. Mayor Tyra-Lukens noted that the Council passes ordinances on a regular basis regardless of the fact that they could be sued for any one of these actions.kf %.x.:<:,e, �...5!'.�?i .:;a�='ii%.YA'�`+i'7,`.::ii�?.:ii's`:S' s2': '.�"ir`,b1iJy�:�Sr?'j�ii: k; .:� y:.- �Y;'�y . e�..:.: • - ., ,.. .. . - - _mot€ � . t� • Butcher asked Rosow how long it would take to get an Attorney General's opinion on the :: legality of the ordinance Eden Prairie is considering., Rosow said in his experience it generally takes about six weeks to get a response.:Rosow also noted that the last time the • City had sought an opinion from the Attorney General's office, they were disappointed when the Attorney General declined comment based on the assertion that not enough ..facts were submitted. .Rosow,said,it might be:more prudent to reach a consensus on a • - proposed ordinance and then submit,it for an opinion. Rosow said his office would also . need to gather any available information on the money spent lobbying for an ordinance in Eden.Prairie. Case said he was comfortable with submitting whatever ordinance the Council agrees on to the Attorney General for review..Luse asked how it would_look to • the people of Eden Prairie if the Council was unwilling to wait six weeks fora AAttorney General's opinion before going forward•in discussions on the ordinance. • Mayor Tyra-Lukens suggested submitting the draft ordinance as it stands and waiting to '' '1 see what sort of opinion the Attorney General returns. If the Attorney General raises no • objections to the more restrictive version of the ordinance,the Council would then be assured that a less restrictive(compromise) ordinance would be acceptable. Tyra-Lukens pointed out that this would mean tabling discussion of an ordinance until at least the second meeting in August. Council agreed to direct the City Attorney to request an Attorney General's opinion. Tyra-Lukens asked Luse if he would be willing to discuss an ordinance if the Attorney General's opinion indicates there is no legal reason not to do so, Luse said he would be willing•to discuss the ordinance at that point.. • • •.,,.,2, .:s.:.r-:'•,.c.J.+:•::.}.rj:r ,,��?S3;i!=;'Y-d w%Gr.?;t.:%•: 'A' '�s.a:��:. - %;;; ... ?y..- i. ..._. ,.':`..e`.,r. n •3,.� '•' it c y,.s. _:J,r • •tip, ;IV:,• OTHER'TOPICS tt ;:: r. ,� . . . .. yyypp_ •. ,.1� .�99 • �7:;14%:4+`4: !�' tAtt •;e't+^.1.9 irO i.._:�}i�`IP .4r• ?fV"h7,lxy+ew rri ep s'• ',fxl.':5 T'I rd ..3 '+'t .�'.,z�s4�':3tr.€�.yt:��^jrv`� ;)''c.fj�'' 'i',.�•�'S1'lc. ."'i(r:`�,l 2.si.. � ...`) Council 7 _ •- -V.. OPEN FORUM (Scheduled participants, 6:30-6:50 p.m.) ••. • A. PROPOSED SMOKING ORDINANCE 1. *Ken Rockier Rockier stated he does not live in Eden Prairie,but represents the Professional Bowlers Association. He referred to the recent court ruling on MPAATs use of funds for lobbying for local smoking ordinances. He read a detailed list of lobbying activities by the American Cancer Society (with funding from MPAAT)in Eden Prairie. He said that in light of the recent court ruling,spending money in this way was"wrong and illegal" Council Workshop Minutes—July 2,2002 Page 4 He said the smoking ordinance was brought to the Councilby;`CleanAir-:;• • on the Prairie,"a local group Rockier'says is supported by the American. Cancer Society. He asked why,if second-hand smoke is so harmful,did it � y take money from the American Cancer Society and MPAAT to bring the issue before the Council. Rosow asked Rockier for documentation on the money spent by MPAAT for lobbying., Rockier said he would try to gather the information for Rosow. •• . • • - 2. Gary Chenen • Gary Chenen, owner of the Outback Steakhouse, asked the Council again • to consider the financial impacts a'smoking ordinance would have on • • restaurant and bar owners in Eden Prairie.`•He said that although some sources discount negative economic impacts of smoking bans, several establishments in Duluth did report negative impacts after•an ordinance • - was enacted. He said the Eden Prairie Chamber of Commerce is holding a meeting of restaurant-owners on July'17 to discuss potential-impacts of the proposed ordinance. Chenen asked the Council to consider how to make " any ordinance fair to restaurant owners who have already spent much •. _' • money providing ventilation systems,and no smoking areas with'the • - understanding these measures would be sufficient.'` = •. r - 3. Clean Air on the Prairie (two speakers)• • . No one from Clean Air on the Prairie was present to speak. B. PERRY FORSTER—RPBC WATERSHED REAPPOINTMENT Forster said his term on the Riley Purgatory Bluff Creek Watershed District Board • is up at the end of July. He asked the Council to support him for another'term on • the Board.' Forster noted that the Watershed District made a presentation to the ...,. • • ••. • : .;t,,.: Council on their activities last spring,and they would be happy to make.a similar . ,: ;: • presentation for anyone who had missed it. Forster answered.severa.l q , uestions #« • o frm the"Council on Watershed District activities: The Couiicihneinbers praised , Forster's work for the District and assured him that they would•support him'for another term. . . • • .q• !pc.. >1. - _ .,,r•nf"s`-P$'.,,�1-+. iyvs:-s.: • ��;•?' =.taLy::.;'...aY . .=i.' '' •• VI. OPEN PODIUM(Unscheduled participants,6:50-7:00 p.m.) VII. ADJOURNMENT • • • /i APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL TUESDAY,AUGUST 6,2002 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road ti CITY COUNCIL: Mayor Nancy Tyra-Lukens,Councilmembers Sherry Butcher,Ron Case,David Luse and Jan Mosman CITY STAFF: City Manager Scott Neal,Parks&Recreation Director Bob Lambert,Public Works Director Eugene Dietz, City Planner Michael Franzen,City Attorney Roger Pauly and Council Recorder Theresa Brundage I. ROLL CALL/CALL THE MEETING TO ORDER Mayor Tyra-Lukens called the meeting to order at 7:05 p.m. All members were present. II. PLEDGE OF ALLEGIANCE M. EDEN PRAIRIE COMMUNITY BAND—PRESENTATION ON CHINA TRIP Representatives of the Eden Prairie Community Band presented to the Council photos, banners and a print they received from the People's Republic of China on their recent trip. Band Director Marilyn Rateike showed a 9-minute video and spoke about the trip taken by 36 band members. IV. COUNCIL FORUM INVITATION Council Forum is held the first and third Tuesday of the month from 6:30—7:00 p.m.in the Council Chamber.Please note that this portion of the meeting is off-camera. The Council Forum consists of two parts: scheduled and unscheduled appearances. 6:30 to 6:50 p.m. is reserved for scheduled participants. If you wish to schedule time to visit with the City Council and Service Area Directors,please notify the City Manager's office(at 952-949- 8412)by noon of the meeting date with your request. The last 10 minutes of the Forum, from 6:50 to 7:00 p.m. is set aside for impromptu,unscheduled appearances by individuals or organizations who wish to speak the Council. V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Tyra-Lukens added an Item under XIV.A. The agenda would therefore be amended to reflect item XIV.A.1.DISCUSSION ON SETTING A WORKSHOP DATE ON THE PROPOSED SMOKE-FREE AIR ORDINANCE. MOTION: Butcher moved,seconded by Luse,to approve the Agenda as published and amended.Motion carried 5-0. CITY COUNCIL MINUTES August 6,2002 Page 3 4_ J. ADOPT RESOLUTION NO.2002-131 AUTHORIZING EXECUTION OF THE 2002 CDBG SUBRECIPIENT AND THIRD PARTY AGREEMENTS FOR PARTICIPATION IN THE URBAN COUNTY CDBG PROGRAM K. ANNETTE ESTATES by Annette Kaufman. Location: 14758 Staring Lake Parkway(Developers Agreement) ti L. HTG ARCHITECTS BUILDING by James Grover. Site plan review on .86 acres. Location: 9300 Hennepin Town Road (Resolution No. 2002-132 for Site Plan Review) M. AWARD CONTRACT FOR MITCHELL ROAD STORM SEWER IMPROVEMENTS TO KUSSKE CONSTRUCTION COMPAN I.C.01-5540 N. ADOPT RESOLUTION NO.2002-133 AUTHORIZING CONVEYANCE OF PARCEL 05-116-22-44-0033 AS PUBLIC PROERTY UNDER THE CONTROL OF THE CITY OF EDEN PRAIRIE MOTION: Butcher moved, seconded by Mosman, to approve Items A N of the Consent Calendar.Motion carried 5-0. XIV. A. REPORTS OF COUNCILMEMBERS 1. DISCUSSION ON SETTING A WORKSHOP DATE ON THE PROPOSED SMOKE-FREE AIR ORDINANCE. This item was heard out of order while Councilmembers waited until 7:30 p.m. when Tyra-Lukens announced a moment of silence would be observed. It was agreed to set a workshop to discuss the next phase of discussions on the proposed Smoke-Free Air Ordinance for Tuesday, September 17,2002 at 5 p.m. Luse said he was concerned about possible legal fees being incurred by the City from potential lawsuits pertaining to the ordinance.He asked if the League of Minnesota Cities Insurance Trust would cover such costs so that taxpayers would not have to pay. Luse asked that this question be answered before the workshop. At 7:30 p.m.,Tyra-Lukens announced that at the request of the mayor of Minneapolis, a moment of silence would be observed in honor of fallen Minneapolis Police Officer Melissa Schmidt who was recently killed in the line of duty. Tyra-Lukens noted the importance of all police,fire and emergency and medical personnel and how appreciated they are. VIII. PUBLIC HEARINGS/MEETINGS A. HOUND DOG PET HOTEL By David Hansen and Karen Jackson. Request for PUD Concept Review on 1.56 acres and PUD District Review with waivers on 1:56 acres, Zoning District Amendment within the Commercial Regional Service Zoning APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL TUESDAY, SEPTEMBER 3,2002 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Nancy Tyra-Lukens,Councilmembers Sherry Butcher,Ron.Case and Jan Mosman CITY STAFF: City Manager Scott Neal,Parks&Recreation Director Bob Lambert,Public Works Director Eugene Dietz,Management and Budget Director Don Uram, City Planner Michael Franzen, City Attorney Ric Rosow and Council Recorder Theresa Brundage ROLL CALL/CALL THE MEETING TO ORDER II. PLEDGE OF ALLEGIANCE ` III. COUNCIL FORUM INVITATION Tyra-Lukens announced that Council Forum is held the first and third Tuesday of the month from 6:30—7:00 p.m. in the Council Chamber.Please note that this portion of the meeting is off-camera. The Council Forum consists of two parts: scheduled and unscheduled appearances. 6:30 to 6:50 p.m.is reserved for scheduled participants. If you wish to schedule time to visit with the City Council and Department Directors,please notify the City Manager's office(at 952-949-8412)by noon of the meeting date with your request. The last 10 minutes of the Forum, from 6:50 to 7:00 p.m. is set aside for impromptu,unscheduled appearances by individuals or organizations who wish to speak to the Council. Tyra-Lukens then announced that the mayor of Minnetonka,who is also the president of the National League of Cities,asked that all cities in the country read a proclamation to commemorate September 11,2001. She then read the proclamation. Neal announced that the City is also participating in recognition of September 11.He said two significant church-related services will be held,and the League of Cities commemoration event will be ongoing throughout the day,beginning at 7:46 a.m.with a moment of silence and a ringing of sirens. Butcher asked that the proclamation be put on the City's website.Neal said it would,and the League's other events will be on the site as well. Tyra-Lukens made another announcement commending two young ladies from the community.Eden Prairie High School student Danielle Whipperfurth participated in a national teenage scholarship contest in Nashville this summer,representing the State of Minnesota and finished fifth nationally.Allison Kearns of Eden Prairie,who is Miss Minnesota,will be representing the state in the upcoming Atlantic City competition.Tyra- Lukens expressed the City's pride for both ladies. Tyra-Lukens also announced that Councilmember Luse has been diagnosed with pneumonia and is,therefore,not able to attend tonight's meeting.She said he asked her to convey to the CITY COUNCIL MINUTES September 3,2002 Page 9 Liebo recommended the Washburn enter into a contract with the City.He said the document recorded against the property clearly allows them to ask for written consent. MOTION: Butcher moved to refer this matter back to Staff for further discussion with the property owners.Seconded by Case,motion carried 4-0. s XL REPORTS OF ADVISORY BOARDS &COMMISSIONS XII. APPOINTMENTS A. APPOINTMENTS TO THE ARTS AND CULTURE COMMISSION Neal stated that in March of 2002,five residents were appointed to the Arts&Cultural Commission which has a 5 to 7 membership range. At the August Arts&Cultural Commission meeting Freinde Mills announced that she and her family wilj be moving to Minnetonka. Therefore,she has resigned her position on the Commission. He said staff sent an email to resident artists and art contacts in Eden Prairie to notify them of the opening. Three individuals applied for the commission. After reviewing the applications, staff recommends that all three be appointed to the commission, thereby bringing the commission to'a full seven members. Neal said all three applicants have backgrounds and interests in the arts as well as being involved in the government process, and staff also believes that each one has strengths they could provide the commission. Having a seven member commission will also allow us to spread out the work more, better reach the public, and receive more feedback and information from different view points. He said Staff commends that Todd Persteiner be appointed to serve out Freinde Mills' term, which would be held until 2005. Doug White and Steve Mosow would be appointed to fill the 2003 and the 2004 terms. This would.give us two one-year members,three two-year members,and two three-year members. MOTION: Butcher moved to appoint to the Arts & Culture Commission Todd Persteiner for a term to expire 3/31/2005; Steve Mosow for a term to expire 3/31/2004; and Doug White for a term to expire 3/31/2003. Seconded by Case, motion carried 4-0. • XIII. REPORTS OF OFFICERS A. REPORTS OF COUNCILMEMBERS 1. Discussion on the sample Smoke-Free Air Ordinance posted on the City's website. Case said the sample ordinance on the website has caused needless confusion and he thinks it best to pull it and note there that it never was a proposed ordinance,that it was simply a sample and Council is now in the stages of CITY COUNCIL MINUTES September 3,2002 Page 10 _ drafting their own ordinance.In addition,Case noted that the issue of the ordinance has always been an indoor air quality employee issue, and did not include prohibiting smoking in outdoor areas. Mosman supported taking the sample ordinance off the website and noted that the Chamber quoted parts of the sample ordinance in information it sent out, therefore creating a misunderstanding on their part also. Case said he wants to let the public know that there does not yet appear to be a consensus among Councilmembers on the issue. Butcher suggested Neal contact the Chamber and let them know that Council found it to be a bit misleading. She agreed that there is no sense of consensus on this issue. 2. Update on Building Assets Together meeting. Mosman said she will be the Council designee to go to the Building Assets Together meeting. She said an assets survey was conducted of all 6th and 9th graders and some 10`h, 11t'and 12th graders. She said they're looking at how to fund another asset survey which shows a lot about students because the population does change so much. She said they're looking at grants as well as businesses and churches to be involved, and it may involve looking at a link to the Eden Prairie website. She said a there will be a presentation this fall. B. REPORT OF CITY MANAGER 1. Update of City's Strategic Plan Neal stated the best time for updating the Strategic Plan would be after the upcoming elections. They are looking in the January-February time period to take a Council retreat to establish the plan. 2. Fire Chief Appointment Neal announced the appointment of George Esbensen as the City's new fire chief.He said he is currently assistant chief currently and will be Eden Prairie's first career fire chief,and will start September 9. He said the announcement was warmly received last week by the firefighters. 3. Public Safety Department Neal advised the Council he was previously considering making organizational changes to the Public Safety department,including establishing a stand-alone Police Department and stand-alone Fire Department.He said after talking about it with management staff,that is the direction that will be taken.He said the timing is right because of the new fire chief appointment and also the City will have a new police chief within 90 days. vi =A . UNAPPROVED MINUTES EDEN PRAIRIE CITY COUNCIL WORKSHOP/FORUM 4?› TUESDAY,SEPTEMBER 17,2002 CITY CENTER 5:00-6:25 PM,HERITAGE ROOM II 6:30—7:00 PM, COUNCIL CHAMBER Mayor Nancy Tyra-Lukens, Councilm.embers Sherry Butcher,Ron Case,David Luse and Jan Mosman CITY STAFF: City Manager Scott Neal, Public Safety Director Jim Clark, City Attorney Ric Rosow, and Recorder Lorene McWaters Heritage Room II . I. CALL MEETING TO ORDER Mayor Tyra-Lukens called the meeting to order at 5:30 p.m. II. APPROVAL OF AGENDA III. PROPOSED SMOKING ORDINANCE Mayor Tyra-Lukens reviewed the history of the second-hand smoke ordinance discussion. She said Council discussion began at the April 16 Council Meeting when a citizen's group, Clean Air on the Prairie,presented a petition containing more than a thousand signatures calling for restrictions on second-hand smoke. Mayor Tyra-Lukens said this was the first time in her eight years on the Council she had-received a petition • with so many signatures. The closest she could recall contained 200 signatures, at most. In light of the petition,she said the Council felt a duty to address the issue. She is distressed by those who suggest the Council should never have addressed the issue of regulating second hand smoke,to begin with. Tyra-Lukens expressed her admiration for the entire Council for having the courage to take on this issue. She thanked the Council for their hard work and commitment to openness of process. She said the Council has .held special meetings,received numerous e-mails,letters, and phone calls on the topic. She feels the thoughts of each Councilmember have gone through an evolution, and it is time to move forward. Mayor Tyra-Lukens suggested they start the discussion by reviewing the portions of the hypothetical ordinance on which there seems to be consensus. She asked whether the others agreed that they were talking about regulating indoor air quality only. Luse said that even the American Cancer Society's data does not indicate there are negative effects of second-hand smoke outdoors,so he would like to stick to discussing indoor settings. Tyra-Lukens asked if that would include outdoor eating spaces. 3 Council Worl&hop/Fonun - September 17,2002 Councilmember Butcher said she would like to review some definitions before proceeding. She asked Rosow for clarification on what is considered a"public place." - `5' Rosow said his definition of"public"was based on that concepts set forth in the Minnesota Clean Indoor Air Act.Under this definition anyplace the public is "invited into"is considered public. Butcher said she considers a"public place"to mean that which is owned by everyone, i.e.,land and buildings owned by the City or other governmental entity. Cbuncilmember Case said he liked Butcher's distinction. kf Councilmember Luse asked the other Councilmembers to remember that he is just.the'' messenger,but that they must be very careful about what they are proposing=so would they ban smoking on highways,too, since they are technically public property? Case said he believed they were talking only about indoor air quality. Butcher said they may want to include places like outdoor park pavilions and amphitheatres. Tyra-Lukens asked if smoking out of doors at factories,offices, etc.,would be allowed. All agreed that smoking outside of buildings and in vehicles would be acceptable. Tyra-Lukens asked if the Councilmembers supported the 75%non-smoking/25°o smoking ratio for hotel rooms called for in the hypothetical ordinance. She noted this is pretty much already the business standard. Case said he thinks it is worthwhile for the Council to codify what is already common practice,to send a message about what they are trying to do. Butcher said she is not comfortable regulating what hotels do in relation to smoking. She would rather offer a set of guidelines,under which compliance would ' be voluntary. She said enforcement of regulations would be very difficult, and she thinks the marketplace should drive what hotels do,not the government. Case said that although he thinks smoking regulation should be taken care of at the state level,passing an ordinance at the City-level will help move the State in this direction. City Attorney Rosow said that it is not appropriate to include guidelines in an ordinance. The Council could include regulations in an ordinance and pass an accompanying resolution that would list guidelines. Case said the Council may want to consider forming a task force to draw up guidelines and facilitate implementation. • Rosow said the term"private vehicles"should be clarified. Would a truck owned by a • conglomeration and driven by an employee be considered private or public? Tyra- Lukens said she would consider these exempt. Luse suggested making it as simple as . possible—regulation should not apply to vehicles unless they are inside a building(i.e.,in a garage.) Rosow said he would.strike the word"private." Tyra-Lukens said it seems that most companies are already limiting smoking to outside areas or rooms with separate HVAC systems. Butcher asked Rosow for a quick overview of the Minnesota Clean Indoor Air Act. Rosow said the act prohibits smoking inside buildings except in designated areas. The designated areas are set by the proprietor and are required only to use existing barriers. Case said he has heard from hundreds of people,most of whom say they want to get away from second-hand smoke. However,they are asking that the Council not take any0 action that will hurt business. Case said his goal is to increase indoor air gwility without harming businesses. He said he spoke to a doctor at Abbott Northwestern Hospital. The Council Workshop/Forum September 17,2002 doctor indicated there are so many people smoking outside the hospital entrances,he feels it would be better to provide a separate room for them.Then others would not have to endure the second-hand smoke to get in the doors. Case said he could support an ordinance that would provide for indoor smoking areas as long as they have separate HVAC systems. He reiterated that he felt the Council's mandate was to craft a symbolic ordinance with as much substance as the people of Eden Prairie want. Butcher said maybe a guideline is more in line with what residents want—a one-size-fits-all ordinance may not be productive. Councilmember Luse said he's had more than 4,0@0 e-mails, letters and phone calls on the proposed smoking ordinance. He says he believes he has- been consistent in his commentary on having difficulty with the issue because there is no clear consensus. He said he believes he was illegally lobbied by Isis Stark in the study of his home on April 12,2002. Luse asked how the Council proposes to go to the residents with an ordinance that is .crystal clear when the conversation has come down to what will be legal versus what will be suggested. He said he does not see a decisive conclusion. Beyond a lack of resources to police an ordinance,Luse asked how the Council expects to go to the community with a modified smoking ban when they were told in April that the facts warrant a 100%ban. Tyra-Lukens said she would like to pull the Council back-to the issue at hand. Luse asked how the Council proposes to police what is currently legal(smoking)in private buildings. He said he was told by the same people who illegally had lobbied him that HVAC systems do not do enough to protect others from second-hand smoke. Tyra- Lukens asked if Luse was proposing to ban smoking from all indoor areas. Luse said he was just cautioning the Council to be very clear, and take the time to really define things. Mosman said that in relation to factories,the main consideration is to protect non- smokers from second-hand smoke, and using separate ventilation systems may be the most effective way to do this. Case said he would be okay with banning smoking inside • all businesses,but he could also support separate rooms with separate HVAC systems as an incremental step toward,eliminating second-hand smoke. Councilmember Mosman agreed. Luse said that at the end of the day the majority of residents will define the issue based on how it affects their pocketbooks. If banning smoking will cost the community money in terms of tax revenues,possibly in the millions of dollars,he does not believe they will support an ordinance. Case said that type of obfuscation was not helpful,that referring to millions of dollars in lost taxes ignores the fact that adverse health effects of second-hand smoke cost Minnesotans billions of dollars. Case asked if the Council could continue the Workshop after the regular Council.Meeting since it was clear they would not reach a consensus in the time remaining. Rosow said the Council could continue the Workshop after the regular meeting. • IV. OTHER TOPICS Council Chamber V. OPEN FORUM (Scheduled participants,6:30-6:50 p.m) 4'5 Council Worlshop/Fonmt September 17,2002 A.- PAUL WENDORFF—SMOKING ORDINANCE Mr.Wendorff said he is an 18-year resident of Eden Prairie,and that he does not represent any group. He said he expressed his concerns in July about potential • conflicts of interest on the Council regarding a proposed smoking ordinance. Since then,he has attended meetings with City staff,the Attorney General, and Eden Prairie residents. Wendorff referred Council to a request he faxed earlier in the day requesting a task force to investigate the conduct of the Edell Prairie City • Council regarding the proposed smoking ban ordinance.-Wendorff gave a 50-page document outlining the basis for his request to City Manager Neal. Wendorff's concerns included what he called illegal MPAAT lobbying of Councilmembers. Mayor Tyra-Lukens asked City Attorney Rosow to comment on Wendorff s request. Rosow said using the term"illegal"in relation to MPAAT's activities is misleading. A distinction should be made between illegal activity and something that should not have ideally been done. • Councilmember Luse said he had concerns about MPAAT going back td April 16. He said that wrongdoing is a matter of perception as it relates to public service. The Council must make sure everything it does is done properly. Even-if something is not illegal,the Council has to deal with the matter of perception. Councilmember Case said every resident has the right to raise individual concerns, as Mr.Wendorff has done. However,the Council needs to remember that Wendorrf is just one individual, and represents only himself. He said the . 4 . Council should carefully consider how to respond to his proposal,which would be costly to implement. Case said to interrupt the process the Council has begun with respect to a smoking ordinance would constitute a gross misspending of funds. Case said it is his understanding that if Wendorrf wishes to pursue his concerns,he can file a court case. He said the Council would have to look to the City Attorney for counsel on the issue. Mayor Tyra-Lukens recommended adding the issue to the regular meeting agenda so they could move on to the next speaker. • B. TOM DAY—MINNESOTA RESTAURANT ASSOCIATION Mayor Tyra-Lukens said Mr.Day had informed the City Manager's Office he would be unable to attend the Forum. C. GARY CHANEN—OUTBACK STEAKHOUSE Mr. Chanen said he is a managing partner of Outback Steakhouse in Eden Prairie. He said he was disturbed by an article in the previous week's Eden Prairie News. He said restaurant owners have invested millions of dollars in Eden Prairie, and it is offensive to be accused of not being concerned about public health. He asked what the City is doing for restaurants and said telling restaurants what to do now is unacceptable. He said the Mayor's comment in the article regarding her belief that large numbers in the community want smoke-free restaurants was offensive. Chanen said he feels the Mayor is attempting to blacklist some restaurants, even though they are already moving toward non-smoking on their own. He said he =`Y has heard rumors of the City taking cigarette sales out of the liquor stores,which he called"a petty effort." He asked the Council to"stop a runaway train—stop Council Workshop/Forum = September 17,2002 this ordinance."He left copies of letters from an Eden Prairie tanning business and a manufacturing company,both opposing a smoking ban. . -- - • VI. OPEN PODIUM(Unscheduled participants,6:50-7:00 p.m.) Eden Prairie High School student Stacy Beritz read a letter she wrote in support of a smoking ban. • Kathy Paltz,an Eden Prairie resident and former smoker,said if she had known how unhealthy second-hand smoke was she never would have exposed her children to it. She asked the Council to approve a second-hand smoke ordinance. • Pat,resident of Bloomington, said she has to carry oxygen with her for medical reasons. She said she realizes her health problems are a result of her own smoking,but her mother also suffered from emphysema even though she never snioked.Pat said she cannot go into most Eden Prairie restaurants because smoking is allowed. She would like to see restaurant environments free of smoke. .• • Cindy Schultz,Eden Prairie resident, said she supports a smoking ordinance because it • will help save lives. She is concerned about talk of a compromise ordinance, and asked the Council to stand firm. III. PROPOSED SMOKING ORDINANCE(continued from before regular Council :;1' Meeting) • Mayor Tyra-Lukens reconvened the Workshop at 9:25 p.m. Tyra-Lukens suggested picking up the discussion at smoking in factories and manufacturing facilities. Councilmember Butcher asked to make a couple of statements before continuing the discussion. She said the Councilmembers' oath says they will remain independent of thought until all information is gathered on an issue. She had - gotten a letter from the Chamber of Commerce just last Friday,stating that they are against a smoking ordinance.-In light of this,Butcher said she would like to.ask the . •• Council to develop a resolution asking the state to review the second-hand smoke issue in relation to the Minnesota Clean Indoor Air Act.Butcher stated that she is also in favor of voluntary guidelines rather than legal regulations. •Case said he would like to try to figure • out where points of consensus exist among the Councilmembers. He said it appears that two Councilmembers would vote against even a compromise ordinance. If the Council passes an ordinance with only a 3-2 vote,he asked what message that would convey to the community. Case said that he liked the Eden Prairie School District's policy of no- smoking on school grounds. He felt the City could comfortably pass a similar policy for government-owned properties. He said his goal still is to not have smoking anywhere in the state,but that the Council will be doing themselves and the community a disservice if they pass a ban that is viewed negatively by surrounding communities. He thinks it might be more effective to"take control of what we can control,and get away from trying to regulate private business." --- Case said he would like to pledge the Council to continue to carry the flag to eliminate Council Workrhop/Porum September 17,2002 second-hand smoke. He said Councilmembers could promote the cause to other cities. _ He envisions 20 mayors marching into St.Paul demanding action. Butcher said.28 communities have already written to the State asking them to address the issue of second-hand smoke. She said the issue is too confusing to address on a local level, and action must take place on a comprehensive, statewide basis. Mayor Tyra- Lukens said Butcher presented some compelling reasons to deal with the second-hand • smoke issue on an incentive basis. She said she agrees the worst thing tho Council could do would be to pass an ordinance that is disrespected and disregarded. Though her goal would be for everywhere to be smoke-free, she asked if it would be fair to "sacrifice the City"in quest of a local ordinance. However,she said she is not convinced sending a resolution to the State would be effective, and she would not be satisfied with only a set of guidelines. She suggested holding a candidate forum before the upcoming election to find out where legislative candidates stand on the issue. Case said he has spoken with members of the Chamber and visited nine or 10 Eden Prairie restaurants. He believes there is a lot of room for restaurants to do wharis right • and still make money. He said this issue would be perfect for a task force that would focus on the positive—how to help bring about incremental changes in second-hand smoke exposure. Councilmember Mosman said that although she is no medical expert, she feels she has to rely on the data presented by medical experts that second-hand smoke is detrimental to health. If this is true,they are not doing their duty as Councilmembers if they pass a weak ordinance. She pointed out that the Attorney General indicated it was . within the authority of the Council to pass an ordinance. Butcher said that while all of the Councilmembers agree that smoking is bad,there are a lot of things that are unhealthy that the Council doesn't regulate. She said individual rights and the right to choose are issues as well. Individuals still have a choice of whether or not to go into a place that allows smoking. She said a good start would be to ban smoking on all publicly-owned properties, even out-of-doors. She said.she has always been in favor of forming a task force that would include health organisations and local businesses and would develop incentive based initiatives. This task force could also draft a resolution for the City to send to the State. Councilmembers could also take the issue to the MLC and urge them to explore options. Case said if the Council's actions don't include regulations,he would at least like to develop a list of"hopes"for directions in which the City would like restaurants and businesses to move in relation to second- . 'hand smoke. One goal could be for smoke-free lunch times in restaurants throughout the City. Case said any goals the Council establishes must be monitored over time. Case also suggested"running a major survey"of the community on the issue. He said the task - force could gather data over a year and then readdress the issue. Tyra-Lukens asked if the other Councilmembers had an idea of what measures restaurants in town might support. She feels it is important to have the restaurants on board with whatever a task force might propose. She said she would ultimately want to see smoke-free family dinner time in restaurants in addition to lunch hours. Case suggested offering incentives,such as free advertising,for restaurants that go smoke-free. Tyra-Lukens said she liked the concept of trial periods, after which a review would take Council Workshop/Forum September 17,2002 r place. Butcher said she would not be comfortable with any type of regulation that was ti ,•.j not first put before a task force and/or the Chamber. - Councilmember Mosman said she was concerned about bumping the issue up to the State level since that is where the majority of tobacco industry anti-regulation money is spent. Councilmember Luse said he felt a lot of progress had been made,but he cautioned the Council that it sounded like they were going back to square one with the idea of • appointing a task force. He said no one is going to be happy and.he doesn't believe it will"have a whole lot of meat to it"unless actions are based on what constituents want and what is in their best interest He asked the Council to be cautious about legal exposure. He said as an American he tends to err on the side of freedom and individual rights. As an appointed Councilmember he errs on the side of believing that the issue is just too close to call. He does not see a mandate. He asked all sides to tone down the rhetoric and issued a challenge to all in this town to neutralise the negativity stemming • from this issue. Case said he was not sure of David's position,that he has indicated he would like to err on the side of health,individual rights,and what the majority of people want Luse said he believed he had been crystal clear. He feels it is his responsibility to• err on the side of the majority,but he has yet to hear any hard numbers. Case said that • his impression is that the majority of people want a smoking ban that won't have any negative effects. Butcher said she seemed to be hearing some agreement on a ban on smoking in publicly- owned places. Tyra-Lukens and Luse said they could support such a ban. Case said he just wanted to say a few words about Luse's assertion that the Council hadgone back to step one with the suggestion of forming a task force. He said he believed that the task force that is being discussed today is very different from the one proposed in April. Tyra-Lukens said she was wary of relying on statistics. Surveys are not necessarily scientific, and the results depend largely on what and how questions are asked. Rosow said he wanted to clarify the Council's direction based on the evening's discussion. His understanding was that they wished to draft an ordinance to ban smoking in all publicly owned spaces,both indoors and outdoors. By publicly owned,they meant everything owned by a government entity,not just the City. Case said he would also like • staff to explore the possibility of a task force charter. Luse suggested that one of the most important tasks is to communicate to the business community what the Council will not be doing—namely regulating smoking at private businesses. The Council agreed they would hold further discussions on how to proceed at the October 1,2002,Workshop at 4:00 p.m. in the Heritage Rooms. VII. ADJOURNMENT The meeting was adjourned at 10:50 p.m. :�S • 19 �- • .. UNAPPROVED MINUTES EDEN PRAIRIE CITY COUNCIL '_.... - f :l•. L •_ - _ - TUESDAY,SEPTEMBER 17;2002 •` •- • • = 7:00 PM,CITY CENTER Council Chamber . . ._. . . ._. .• .. . • • - - 8080 Mitchell Road . CITY COUNCIL:-Mayor Nancy Tyra Lukens,,Councilmembers Sherry Butcher Ron Case,David - a:C< r,Y.7' .{a' _...K".�`- -'}':�•ile• ]�- l 'r.._ a r,C:^3- .•_.L+d •y.�;'.r. �?+r �ia_ -vtJ.i�^ ' x.. .: .`'�- �ti Tsi)24-,.:,_ �-,�: ,'�•�-:..ur'_ �`b .:...�., s -i.f Like and7an°�Viosman .: hS> .`1 ?ii- t- ;..rY r±n_.K o-..:.. a? ;Nx + c va .; :`t N':i�i '•., a s CITY STAFF: 'City ManagefScottNeal;Public Works Director Eugene Dietz;"Management and • . .'Budget Director Don Uram, City Planner Michael Franzen,.City Attorney Ric Rosow and Council Recorder Theresa Brundage.• • I. . ROLL CALL/CALL THE MEETING TO ORDER II. PLEDGE OF ALLEGIANCE%AL'tf.L - �: •• •=III: .::PUBLIC SAFETYPUBLICSERVICEANNOUNCEMENT VIDEO ON.TEEN . - 'DRINKING'. is ,.: t. - • Stephanie Rogers from the Public Safety Department presented a video showing the latest ;r`� public service announcement on underage drinking. She'said the announcement will be played on cable television as well as in drivers' education classes and it is the second of three • videos. • . . . • . . IV:- COUNCIL FORUM INVITATION • - ' Mayor'Tyra Lukens stated that Council Forum is held the first and third Tuesday of the • } °'month3from 6:30 f., 7:00p in.'in the Council Chamber: Please'riote that thiss-portion of the - C" meeting:;is Doff camera.` The'Council;•Forum consistsl>of twotrparts:' :.scheduled::and �__=_ 'yst`_�_$ urisoheduleda`ppearances "6:30'to 6:50'p:m �is:reserved.8forrscheduled:participants If you �: _ [4r•s 'S=.y ` <Y'LdFi!:.+;,-:;;,ti�;,,�-•-{-;y`^ :5t�'x!,�...<;;�': .''ric's::. :ti _ ,nN.ae'::a't'..° .i" ?>�%-:%•' =� nsh to schedile°hme.tosit:with the Ci .Council andlD ar(mentfiir"etoirs `leaseno " ,y,.a•.-Y�•.ycri,: ,�4: ,.�r�- � .f. t;'°^6�' 27FnkF�?F:a''' -Y�-kS<°••.i`v n as: • _ the"City an ager,a office(at:952-949-8412)by_ 'noon of the meeting date with'your request. • Thelast-•10-minutes-of;the•Forum,--from•6:50`to-7 00•p,m:'is.set aside -for;•impromptu,•- • E.- 3 _:g== unscheduled. a:17- x ,-, :w. _ t,.- ,; iz: :,,- appearances by individuals or org ri ations�dsilio:wish<to-speak to,-theCouncil:=:•.;,:,u=a�;. • •• --..+k;•R S.<A�...�$::r : i,; :17`t:-:4-rwi--::Nyi`.:.r:r :tk. Irk.. \ • _ Y• -..�i. ,{ire - �rv:. •=V: -•'=APPROVALIOFAGENDA'ANDOTHERITEMS'OFBUSINESS • °r Luse„added-Item XIV.A.1. DISCUSSION ON MUNICIPAL SALES OF TOBACCO PRODUCTS and Item XIV.A.2.DISCUSSION ON A-PROPOSED TASK FORCE. Case .:•added=Item=XIV:A 3 DISCUSSION ON 'COMMUNITY"FEEDBACK ON •GRACE - - CHURCH TRAFFIC. - MOTION:-Butcher moved, seconded by Mosman,-to approve the Agenda'as published and amended:Motion carried 5-0. - �.•_[fir _ _ _• .. - ' '. • CITY COUNCIL 11IIITES _ • - • • - September 17,2002 • - -_ . ‘r. •?,.,N: 1.2 - DISCUSSION ON MUNICIPAL SALES OF TOBACCO PRODUCTS MOTION: Luse moved to discontinue the sale of tobacco products in all • '•' :ra municipal liquor stores in the City of Eden Prairie, effective January 1, 2003. •:>ul+g:`i•••,3 4-;<= Case"said it has been discussed to possibly consider using pbacco money as • '.F`:. 154, �e -4 .i.,P d money and.C•iir• ly,put;it back intosbusinesses to help:them_meet goals .•.,.�Gk�,�=Rq¢'fFY,.,D).'�f;,yg7�.'�••� ysM_•rx•-., .7"'_4t•...y:;•l. c. _ .. _ _ .. .. �c�,::< '.= J >`.3::t=t�s r=',t set-liy`the City,ancl'to also raise this issue to the State.level. He said he's in • •• l-of,the cause,'but is concerned;there has not been enough time for • to digest it before voting on it._'r • ' 't • =: Tyra-Lukens said she is in favor of the motion as stated, but it would have ;7'`; - been nice`to have it on the table with other things._:'.• .. •= ..• p — •'tom)'•, . • :'D.�:•• - ••.1., . .�F ^� �•,! h'>� • `i.•' ,- 2. r`° =` �>` "` '� 'k: =Luse`said this is.more of a-moral and ethical comment and should stand on its ri•mot:-�..... own because it would be consistent with the Council's decision to eliminate ' teenage access to cigarette machines. He offered to rescind his motion for • , .i,e,�::srr• •<_.:>:f�:;:;:3:.:s ',t" more discussion,'if necessary.= s•_ •:`.::_ ..... .... 3;N" ,.� ' ,"V1.�! ';"',i.`pT..3r-t�i• 7.....i'. ✓•r''.i:a^••!.!:•': !; ..;�:. :•4;e ':::.:ii"�� }' %'�3'i. • ': ';ic'%7 ; _ t:; ,t ••'3 Butcher.said she'supports the:Motion because she feels it's important that • publicly-owned properties should be.separated out because they are directly impacted by Council decisions. She said she will support the ban because they are City-owned liquor stores. ' . Mosman pointed out that in procedures for bringing items before the Council, • .. . •all Councilmembers did agree to the idea that it had to be either two members: •'! ': .'.t - . initiating it or that it would be prior knowledge with information in the •• '',K ::" • ;r;' •• `-''_-meeting=•packet. '•She said -these procedures'••prevent surprise votes on •g�'•;3 .q.4i.;jl.t.,'` ,r`' . yan. potentiallycontroversial „ _ • ,)v - '',�,r, -�:,). �-�,.O.S•,•._ .,��i"i:t,i :['I(i•+ .N4 n J Y�q-� y)a':.-••'+.Z• 1 1 IR..sn *Fn. ..[[•i,}{��,,.E•:rd}+7�•."s,Y:r<`.`tt.a "k.+��ti.'w.r•,.'�y..�i.=: J'.tiK::'f� <.�. •4�:�;"".,.•Sf%r.. �a,yT,:,..,w,. ..K•{a-Ei;:.•t�x-x a ,:U::,�Z a�Tc::i"=L,-r.� s.?4.:1+.+'�v. : c.+f-`ai':.�:::iici.•.:r:.s.,s�.. �{:.•,L.�.as.: .,'::' ',•.S • 4 T !_i. .•_,• `i:F .•••. . Lusetnotedct 0th, ,ciid1discuss:;:tliis with.11#9.Rosow.farad,CiV"ii* agerNeal,140 ,� .s� !��1 �rZr- l►R+, S�)d�]�.tf`r+e,:a'i,ems+¢�.vs .�,'k- ,.�••:.4:is�:, 'S• -ti-. - � " _ :i "'�:-•>`�'`Dr`'T'• �� and' ielistcomfortalile' tti=ityNealconfirined:latluse'talked to'him.and • the • <AF ' „; :City�Attomey,:but..it'was°:thought•that discussion:would take place in the; =�-uY=< :`-, e4y4, ". '_;{;4•';�n context of.the ordinance.Neal said because of the recess, Council did not get ..ryti•_T,rr ', ,rx^'�J ':ki= :%: •ems °; ` - ' r: ~+• x� . .r�`: :i : ,far�enoi� ui�deliberations`to"discuss�this. -., ,�-., x •.i•.^;'i.".ly�nkPe-. J.,ic�..< r•:': '� ., .a..,n'.•:•! a. ..ry{• •#...; f. .rat• 7: Y • z _ .c s,-::��4;�3�ri^v�.o?",�;T#�_.s,:x'L_:..t.J. ,>.c..r"�:o;•z;bu;f•.•.} .13:.E<-:a:�`3x<t:,. .r,_:• i k� bs t - '::� �'�'` s3 <F • .. . s� �-c:: .•P�y as. ... b" �F.�:-�•t,.i. . �aa.c r. ..i stG* x. $%s:aP� ... ,g. 4, _; r° .• • . -_'i; Butchersaid she sees this as a good faith effort on the part of the Council to _'• try to make progress. :Tyra-Lukens said she is in.favor of the motion. • • • Seconded by Case, motion carried 5-0. • / 1 2. DISCUSSION ON A PROPOSED TASK FORCE tF = Luse said there has been discussion on the forming of a proposed task force to ,v)7,4474 look:into _actions brought forward by.-a.citizen earlier. He said it is an . •==:uncomfortable-situation with no merit;and borders on the reality of the public. forum in that by association, you-are guilty: He said what has been brought - _ = r -forward is a question of conduct on behalf of this Council in actions that relate' • . . CITY COUNCll,MINUTES - •••1 7 "r •- - • September 17,2002 _ Page 10 . . - 5 ;•: - • • to the smoking ban process::Luse said a press release"hag been issued asking -- that a citizens'task force look into the conduct of Councilrnembers. ' ' •:•: r•;f, : . . . . • Luse said it is his belief that perception is reality and he said the Council has nothing to hide and we need to get out whatever it is, under the guidance of • the City Attorney.He strongly urged Council to appoint a taslc force. r" •• • •-•' • -k.• An!KIt4P41.',6t-fi#4N-:".4t4•4*-!=7:•-141,-s4, ,..t. • r • Case said this issue has been raised for several monft-iS and there.have'been .,;s1.4.v.1 • - clear answers from the City AttorneY, He.: individuals can perceive what they wish, but the CitY:Attorney.has said based.on Council actions,there no conflict of interest. He said anyone has the tight to question'alaionf4h ',:kr.:*. Council, but it does not mean Council should react when one resident tries to • • bring to a standstill decisions,made..-forthe good of everyone. He said:the:-?:'.Vg537: Council represents the majority of the people.He said Council would be doing - ••-. • •-••• . an injustice to Eden Prairie's 56,000 residents:if.they constantly knee-jerkX-:-:,..2.. .2-1'. . • . react to what one person brings forth. • •,,! .:• • ..• • • .•:.. ,•:: • . • • • • -. :4; . ,:.; ,e ••. Luse.said the one particular.individual•Tepresents: group. Of people."-He*doesri.:';',..10,'If:4J not see any personal gain by that individual as it relates to this overall issue • -•• •• • • • , it is a concerned citizen. He said it is a reality that people want to know more ••-••; •• :••• about what happened, and it is all.about the perception. Butcher said she has not had an opportunity-to review the document in question and asked if Mr. Wendorff would submit or has submitted written • questions and then have the City Attorney respond in written form. She said • she does feel due process needs to be followed with Mr. Wendorff receiving •• answers to his questions. Butcher added that.she supported a citizens task •*. • • • ' • force:at the beginning of this process and..maybe-sOme of these questions.' .. •; , would have been answered if that had.happe4e4:-....lh4,:• .:.t. • 4. ...CaseAipteck,Wat).'Mr.WendoiffiAcarlyigate.044111.1s,tpreprqp..qonsAat • : • . • , • , • . • , 1;1, " •';`• • submitted to the City Attorney tor.review,ana,answer. • . 34,,g9aVegl;i4ggRPIK-.P..14442144:444 -,A5,;101:64$1.1:AteilosirA**4-4jVikkif •• . •Luse said ,•• ' ." t' 't• • ^:1-1101';''''..f.P.4. 5:1116•;".driveli by one individual,but:We'don't have the access to filly inidefstOiditheg.Atk_ • • • :•1 " .2 'information in past decisions. He said he thinks we have that here; and does ' •i:raY • •-:1•: •.•1'not see that as a process that would cost a lot of money.He said if we don't get .• '..,:;77••••• • • it out there .exactly what it is, :it becomes an individual's -integrity' is-. • qUestioned. ••0A. • • ... • Mosnian said there ar.e-definite rules'about:what can be presented in public • • • . .with respect to personnel issues. She added in this situation,, she feels that the •- • •••• -r- • • queitioni need to be preiented:With responses.-:She said she is in support of . • - -questions durivriften form with".written,answers.•Mosman noted that many rihourillaVd'alieady been spent on -resp.onding:to„:inany e-ma_iIs from citizens • ••-r•-‘ • - - :regarding the issue: 7 • •- ' • CITY COUNCLL 1!_�TQTES , September 17,2002 _ - Page11 . a� ... - - Case mentioned that many people e-mail him and he does not plan to release - - documents that people send to him. He said as a result of Mr. Wiessner's data . • - " - request many people may not now feel comfortable letting Council know their personal thoughts because this may be released to the public. He assured • . - • • • residents of Eden Prairie that he will not be the one to release their thoughts • • • • • . and concerns, but they cane release anything he•sends back. Case said he • -• .''•. - .:.. 'believes the law says that either.party.can release_it.: u4 - - - ?n^.-^l-'.•,:.:..:•`.�.-j.;; •�i'•r.r�:�:.d�r:i:�•:�. �L•.S'`i•:nT:i M�F,,�, �;..:v'- .. .Y•��^ ;? ..1..��ri��.. -..�:.••M t=`^by'JS9.Y,�r':✓;E.t.T'+'L. • - City Attorney Rosow clarified that correspondence between citizens and ' • ..-- :°' :` - public officials is private confidential information, not public information, He . . -_ ' • - : said it can be released,however, from either side. , Y • • - ' . Rosow said he is concerned about the process being suggested,He noted that • Council has not had a chance to read the document-submitted.He said it's not -- really a set'of questions he can sit down and-answer, and the problem lies in • • • • •• ` • • the word "investigate"-when the document talks .about "investigating" the - • - Y ...; 4' .'. • . ethical and moral conduct of the:City Council:in response to illegal and :;., •• - . • • • - •-improper lobbying of Councilmembers;by the American Cancer`Society:• - • • • Rosow said Council has no :authority- to conduct an investigation into . • • potentially illegal activity of a third party. He said due process says that it's • . • not one of Council's statutory rights to conduct investigations: He said that is properly the right and duty of other officers of the State, from the County Attorney to the Attorney General. He said rules have to be followed to protect due process rights of the parties being investigated. He said empowering a citizens task force with investigative powers is beyond the scope of the . • . Council and would bean unwise use of resources..: • . • Tyra-Lukens stated there is nothing to hide and Council is willing to cooperate :.,• • . with any questions:from anyone,.but.she is .concerned with`•the fact that Mr......- - �3 Wen.-dorff, ent:thi �outas_ iress lease'; �•7'0 'ao= `din''.out�if_Councilycould 1. rM1.� n..�•aC..;P1,.1Y":!.n�. .\ ..T� S.�.tr.' �w•F?:. .. ..s 'i.i�.' �1• ,S:`•>:•. .'••'.r"J^�rc. S±. �.ti{.Y-�tiwa.� r -..:.. ''r:� y�i+.}.*,cr, ,sp.::t��5;:< ...... � .4' 1 �S��tF`. 'qt•'-•a} .'-k.�:<.-�. .:: �.c?„ � •.�p::l�'+;•�P��t...ri(,`.'1.'`y�1f.�. .•�+3,inn:-:r ,i'�!:�:tti...� ��:t". ` _'- •.,;� - `r 4g rlegally` • •act on:it She suggested that'Council. end_out° ress releas echom `. _��7/--$0- - "i- :r. • I:- `',.,'-'-,comments 'from'the' City Attorney;� as i-.well--as'TCouncil's•willingness• to ." •. cooperate with any questions _ . . ,.a...,3- .. 'r. vale:.,„-- :3 4?.:.r' - {•> :••';vy n ` '•_ ._. Luse said.he:believes the.Attomey-;General:will not respond to°a'compla.int - - r '' . .. .. w...... . ay_.- •'..tea i. :. .d-c.•1 `:. :: ' unless a citizen has issued it. He said he is concerned that•the pressrelease • =_ : will be issued tomorrow morning, and-he is concerned about the fabric of this . ==i . . . - • . - town.He asked Council not to add to.the confusion. .. . • • _ . • ..... �, , --- - - , .c'--. . . . .,. ,... 'P:=.. ,=ct..y .. . _ . . • • - Case said he believes Council should -completely answer this in a•press release, showing that Council has no legal right to do what Mr. Wendorffs • press release is asking: He said because all Councilmembers have said they - '`..._ . • - -'have no 'conflict'of interest"- and actions-have-been-supported by the city Attorney,this is a dead issue. _ - : ... • Luse asked Councilmembers to go back to the consistency of his comments as . ,:- . r,. ••,•�,_ =.-;;.,.- ._,. .to:concerns that have become_,zeality. Heesaid_it is a press release that is_out . _ )r) • i CO V1tT�.lJ_f s - -- - •' l.il September 17,2002 _ . Page12 -. _ _ • _ _ --- t-i °�- =- =there and his point is the process of perception. - ,, --. . .:._=}�,-_ _ -,, -,.. , . • • . - • . •' -s(;<<r� ==;_-wws, fir A;. ':•.Tyra-Lukens- said Council did not ignore the issue, but assessed it and . 'r-= .-f. _ .•:: _r''-'': - . obtained the Attorney General's opinion. She said Council responded to a • •i c,..;: --.-:: =: . " :: request from 1300 people and is doing what should be done by responsible - - ' 'r- -•- ‘-..-•.17,responsive representatives of the people. She said she is not willing to slow• down the process to.deal with one person's perception of things. She said there :• 1.:._ za*' ...,a" }fit"' > ri, ••ri ;.�:..'-- --,.' _N-.;;,.t£ti• .,. a_''',.- '.—r. .. -= ,r�'': ..•'T,-I`k"a .'�i'l�y, '1,�;._-r . "._...,: .g.. .. t- -• _ e'•�: _ .: 1i=.e14 :5?•:: r • is�no'substarice�to�the^allegations:` 6-. •: :; iizral �.6L :z :r_�• Luse•said it-is.not about'questioning:anything other than trying to have.a - • . " •• visiori•for the.City to see what is coming, and specifically this is-a parallel : question process to the bigger question that has gone on since April 16 as to ;;;, = => -1 . -: •- :whether we have a ban on smoking.He said this is about what he believes that . . - - .`: 1:: .. .r•1.: ,•i.-:,;; :'L' 4-when:you•put into the equation:the.political •and health issue the other - :-• • -' =: •�,i-t i; r economic issues along with the.other rights and .choices,-he is hard put-to • ` ti":'"='0"", 't '=i�•'. know that this is anything.other than a very close:final decision about being• • .,_. ,-, ,,,y •-:'. y=S, %•'t u:..A 50-50;depending on how.you ask the.question..He said this is not about a • • si i f-s`'-li.,,:. -•'t•"slowdo this is about consistency Of.one individual councilmember who—, feels very strongly that we started in the wrong direction. He said he is*asking'. • •A'• = f,':7-•tom i5 f` ;: I:Council to separate that from the request here tonight. . • .. ' . . : Tyra-Lukens -.clarified that not only :Councilmember Luse, but all i, • -• • - • Councilmembers have made public statements and have tried to examine this • - issue from all points of view. • - • • • ' • Luse asked if there is another way to address the concern that it is a public • document that will be in the media tomorrow. He said this is about what he •. believes to be an issue of closer to 50-50 on this very important health issue: • • _., i; =1: ",4 ":4- 1. "Case'suggested because of legal advice,,Council'_should'move forward w_itii t '�- �Y. 4?4"i•'•a,.�• � i }�",.,(�(�y y.�;,'i�. �c .ill'. if: ::G:...t: .,5 l :; ::i -•�':;e:-r.cy".`.L"` ray7++.,t,'�+•,�S'.',.,`�: t=.�'iT �d ii.�`i;�te::7--" i'Si=�•;S:'� i .,{'li, � �z�, r2;. i r,t�ls �-• h ; �:`ti". :q knit;�`,� 3�.�.�..ly-+_ �' - ,4...,ttr, this and:issue'apress�•release toriiorrow =Y.:#.. R `-';,. �,-= t-=; �v �• .c = .K.. �..t.:.f":�v^iYi£�' �V �f� :S' ..1 ��y� t `. �£'1 - ��'r•. �. � [`V?�:'��,'_.,y{""t'-L.'�•y�} S !' M!'eSeh �, t ��M ie,{� 1 '• ^_C •�_ i �� • �1� a.�5 I-�,,�j n - :-�'`N. ;TJ,< .k:wi .. .. - :-u�� } � �';:,y- .F.-f .'�y ?!' �.'2'a � �.�Y.s A�F�iY-yfa..•�G��.il�..`S`j�` +��4'•'c. "'{;.ws�k,;• .v,.�,•€?��.^��`�i.�'7+ �-. '?' •-,�;r '' n—itjr`r mix- :ii,^ ='Luse`said hewould like to honor the that was brought forward,-and he ,, •,,....,,,,,:-..;:. ,,,--X ' , would implore Mr.Rosow to-look at it:: f 1 , y ° t-,` i...1F e.:.t. t « ...-C a r<-['.»4.,s, •,,, + `•'r,�:t... ,!:::,i.: ;t'' .y�+ ."'7�r ¢y e, A i7a,f i.:'',sT .+".'lyi��-, '"Ka: %: i"t • tEi g` i o 'f f SNea1-'stated•'prior'to':this.meeting,Staff:had:already planned to•issue -a=pres s ."�' • ''i" :. s=: • ;' • m release sumarizing Council's deliberations. He advised Council that without " • :•.'-. _ - ' . . • ' regard to motives or content, to look at this as a request. for. public • information: He said some of the"information is public and requests should follow the standard process governed by statutes: Neal said Mr. Wendorff= ,!._:: . -:.f , N. - ' - - - 'should be advised of the*rules for seeking-public information, *and he cari.•-'" : • • • .- •• . ' - decide whether he wants to follow those rules. . • 3: :.l :DISCUSSION ON COMMUNITY FEEDBACK ON GRACE CHURCH.' (1) TRAFFIC . '.- 24rirn -''' - Case suggested Staff be directed to look at the traffic impact -of the new .. , church and report back-to Council.-He said there.are two issues-westbound _ � 4 GREGERSON,ROSOW,JOHNSON&NILAN,LTD_ ATTORNEYS AT LAW 1600 PARK BUILDING 650 THIRD AVENUE SOUTH MINNEAPOLIS,MINNESOTA 55402-4337 TELEPHONE:(612)338-0755 FAX:(612)349-6718 WRITER'S DIRECT DIAL:(612)436-7477 DAVID H.GREGERSON• RICHARD F.ROSOW— _ EDFJN AIIUE PRAIRIE CENTER D MARK3.JOHNSON SUITE CENTER DRIVE JOSEPH A.NILAN• EN3R0 EDEN PRAIRIE,MINNESOTA 55344 JENNIFER M.1NZ TELEPHONE:(952)829-7355 JAMES W.DELAPLAIN FAX:(952)829-0713 CRAIGHTON T.BOATES CHRISTINE A.LONGE REPLY TO MINNEAPOLIS ROBERT 1.L+ANG,OF COUNSEL Writer's Email Address: rrosow@grjn.com ROGER A_PAULY,OF COUNSEL 'Also ndnincd Wisconsin +Ce:tified as a Real Propeny Specialist By the Minnesota State Bar Association May 17,2002 •• Thomas Briant, Esq. 15560 Boulder Point Road Eden Prairie, MN 55347 Dear Mr. Briant: I have received and reviewed the materials you provided with your May 10, 2002 letter. In your letter, you agree with me that Mayor Nancy Tyra-Lukens may not have a personal financial interest in the adoption of a smoking ban.You state,"if that is the case,the Mayor would not have a conflict of interest based on a financial interest."You quote from a League of Minnesota Cities memo regarding self interest in non-contract matters.The League's memo refers to council decisions on zoning, local improvements and the issuances of licenses.As you will see in the materials that the City provides to Boards and Commissions on the matter of conflict of interest, there is a discussion of Conflict of Interest in Non-Contract Situations of public officials. The most important case in this area is Lenz v.Coon Creek Watershed District, 153 N.W.2d 209 (Minn. S.Ct. 1967). The Lenz court set out five factors that should be considered in making a determination.The situation in Lenz involved a question of whether a decision of the district should be set aside because the chairman and four of the managers owned land affected and b'enefitted by a proposed improvement.In other words,the court was concerned with whether the chairman and managers had a financial interest in the matter being voted upon. Similarly,in Tp.Bd.of Lake Val. Tpl..Traverse Ctv. v. Lewis,234 N.W.2d 815 (Minn. S.Ct. 1975), the court considered whether a supervisor of a town board should be disqualified in voting on the establishment of a road as a result of the supervisor's decision to circulate a petition regarding the road.The court noted there was no evidence that the supervisor had any pecuniary interest in the establishment of the road and applying the Lenz analysis found that the member was not disqualified.Finally,in E.T.O., Inc.,v.Town of Marion,375 N.W.2d 815(S.Ct.Minn. 1985),the Supreme Court determined that a town supervisor was disqualified from voting on a renewal of liquor license where the supervisor had previously GREGERSON,ROSOW,JOHNSON&NILAN,LTD. Thomas Briant May 17, 2002 • Page 2 stated that his property would be devalued in the amount of$100,000 by issuance of the liquor license.While not falling within the prohibitions of Minnesota Statutes 471.87 or 412°311 because the matter did not involve a contract,the Court found disqualification because of a personal financial interest. The facts you set forth,even taken at their face value,do not in my opinion support the legal conclusion that the Mayor is disqualified from taking part in the discussion and voting on an ordinance with respect to smoking. There is no showing of a personal financial interest. Further, your statements that the American Cancer Society has utilized state settlement money to lobby the City Council is,in my opinion,legally irrelevant to the determination of whether the Mayor may take part in the discussion and voting on this matter. The Mayor is not responsible for actions of the American Cancer Society that you allege that are related to lobbying of the City Council. I am aware of no legal precedent that would disqualify a public official from fulfilling his or her duties under these circumstances. In conclusion, I remain of the opinion that the Mayor is not disqualified from voting on an ordinance pertaining to smoking in the City of Eden Prairie. • GREGERSON,ROSOW,JOHNSON &NILAN, LTD. B �'Y Richard F.Rosow RFR/k1 cc: Scott Neal City Council EPIGenerahBryant OS1602 GREGERSON,ROSOW,JOHNSON&NILAN,LTD. ATTORNEYS AT LAW 1600 PARK BUILDING 650 THIRD AVENUE SOUTH MINNEAPOLIS,MINNESOTA 55402-4337 TELEPHONE:(612)338-0755 FAX:(612)349-6718 WRITER'S DIRECT DIAL:(612)436-7477 DAVID H.GREGERSON` RICHARD F.ROSOW+ $D]N PRAIRIE OFFICE: MARK J.JOHNSONSUITE0 PRAIRIE CENIER DRIVE JOSEPHA.NILAN' _ 370 JENNIFERM.INZ TEEN PRAIHONE:( MI2)8NE7355 55344 TELEPHONE:(952)829-T55 JAMES W.DELAPLAIN FAX:(952)829-0713 CRAIGHTON T.BOATES CHRISTINE A.LONGS REPLY TO MINNEAPOLIS ROBERT I.LANG,OF COUNSEL Writer's Email Address:rrosow@rgrjn ROGER A.PAULY.OF COUNSEL `Also admitted in Wisconsin • +Certifiedas a Real Property Specialist By the Ml nesotaState Bar Association • • • July 15,2002 • Mr. Michael Hatch Minnesota Attorney General 102 Capital Building HAND DELIVERY Aurora Avenue •St.Paul,MN 55155 Re: Minnesota Clean Indoor Air Act, Minn. Stat. § 144.411-144.417 and the Uniform Code of Municipal Government,Minn.Stat.§412.011-412-921 Dear Attorney General Hatch: On behalf of the City of Eden Prairie,I hereby request your opinion on the following issue: Is opinion of the Attorney General dated May 4,2000 addressed to Peter Vogel on behalf of the City of Little Falls,Minnesota still valid in light of the Order and Memorandum of the Ramsey County District Court dated June 27, 2002 issued by Judge Fetsch in the case entitled State•of Minnesota.and Blue Cross Blue Shield of Minnesota v Phillip Morris Incorporated.et al,Court File No. C-1-94-8565?The opinion states: "Thus, we conclude that an ordinance which prohibits smoking of tobacco any place in a public restaurants is consistent with state law and not preempted by it," t. GRECaRSON,ROSOW,JOHNSON&NILAN,LTD. Michael Hatch . July 15,2002 Page 2 FACTS AND DISCUSSION On May 4,2000,the Attorney General issued an opinion to Peter Vogel representing the City of Little Falls. Attorney Vogel asked "[d]o Minnesota Statutes which authorize the regulation of smoking in restaurants by the Department of Health preempt a complete ban on smoking in restaurants by local ordinance?" In your opinion, you stated "[w]e answer your question in the negative."You concluded in the final paragraph of the opinion with the statement quoted on page one of this letter. The City Council of the City of Eden Prairie is considering whether to adopt an ordinance which would ban smoking within the City in enclosed public places,certain outdoor areas,places of employment and 75%of hotel and motel rooms.A copy of a"draft ordinance"is attached to this letter for illustrative purposes only.As I have discussed with your office,this request for an opinion is not a request for an opinion on this"draft ordinance." No vote of the Council has been taken on the enclosed draft and the Council has delayed holding a workshop session at which it intends to discuss and direct revision of the draft ordinance prior to placing it on a regular Council meeting for consideration. The June 27,2002 the Ramsey County District Court Order and Memorandum in State of Minnesota et al. v. Phillip Morris et al.referred to above states in part that,- "MPAAT's four year focus on the environmental smoking ordinance • smoking prohibition approach,in derogation to providing assistance to individual tobacco users,is without legal or factual justification." I am aware that MPAAT funded a grant request of the American Cancer Society the proceeds of which have been used to promote the adoption of environmental smoking ordinances.' Eden Prairie City Council members have been lobbied by representatives of the American Cancer Society, other groups and individuals to adopt an ordinance that bans smoking in certain places. The American Cancer Society is identified in the Court's Order as having received a grant in the amount of $199,530 from MPAAT. The American Cancer Society's grant application approval from MPAAT identified the following expenses to be paid from the grant: $51,000.00 for the salary of a Coordinator for Hennepin County ; $51,000.00 for the salary of a Coordinator for Kandiyohi County;$38,760 for a new secretary;$10,000 for printing;$15,000 forservice agreements;$12,500 for communications and marketing,$7,500 for apolitical community assessment consultant;$2,520 for travel costs to a National Tobacco Conference;$1250 for meeting costs for a National Tobacco Conference; and$10,000 for an evaluation specialist. GREGti.RSON, ROSOW,JOHNSON&NILAN,LTD. Michael Hatch o` • July 15,2002 Page 3 Your opinion of May 4,2000 stated that the Minnesota Clean Air Act(the Act)and the rules adopted pursuant to the Act "do not preempt local ordinances which prohibit smoking in restaurants." As noted in the opinion,public places are broadly defined in the Act.The Act defines public places as: "Public Place"means any enclosed, indoor area used by the general public or serving as a place of work, including, but not limited to, restaurants,retail stores,offices and other commercial establishments, public conveyances,educational facilities other than public schools, '' as defined in section 120.05,subdivision 2,hospitals,nursing homes, auditoriums, arenas, meeting rooms, and common areas of rental apartment buildings,but excluding private,enclosed offices occupied exclusively by smokers even though such offices may be visited by nonsmokers. Section 2 and 3(a)of the Act prohibit smoking unconditionally in certain areas such as licensed day care centers,family home and a group family day care provider homes,and certain areas of hospitals, health care clinics and facilities and doctor offices. Your opinion stated that:. "For other public places,including restaurants, §144.415 of provides.... "Smoking areas may be designated by proprietors or other persons in charge of public places, except in places in which smoking is prohibited by the Fire Marshall or by other law, ordinance or rule."(Emphasis in original) The opinion also stated that the Health Department rules implementing the Clear Indoor Air Act repeated this exception and state in Minnesota Rule 4620.0050, "Nothing in parts 4620.0050 to 4620.1500 shall be construed to affect smoking prohibitions imposed by the Fire Marshall or other laws,ordinances or regulations." 14'4% ` GREGk RSON,ROSOW,JOHNSON&NILAN,LTD. Michael Hatch July 15,2002 Page 4 There has been no change in the provisions of the Act or the exemption in part 4620.0050 of the Health Department Rules since the opinion of Mayo,2000. Accordingly I respectfully request your opinion on the question set forth on page one of this letter. As the City Council wishes to act without undo delay in this matter I would kindly appreciate your opinion at the earliest possible time. GREGER N, ROSOW, JOHNSON & NILAN, LTD. • B , 'chard F. osow RFR/ld Enclosure cc: Scott Neal EP\GeneraMttomey Genera1.071502 • o4' s 4b-0 STATE OF MIN ESOTA Is;s} OFFICE OF THE ATTORNEY GENERAL 525 PARK STREET SUITE 200 MIKE HATCH July 25, 2002 SEPAUL,MN55I03-2106 ATTORNEY GENERAL TELEPHONE:(651)297-2040 Mr. Richard F. Rosow GREGERSON, ROSOW,JOHNSON&NILAN,LTD 1600 Park Building 650 Third Avenue South Minneapolis,Minnesota 55402-4337 Dear Mr. Rosow: Thank you for your letter dated July 15, 2002. As you noted in your letter, the Minnesota Clean Indoor Air Act, Minn. Stat. §fg 144,411- 144.471 does not preempt the police power of cities to regulate smoking in public restaurants. You state that the City of Eden Prairie is presently considering adoption of an ordinance that • would ban smoking in certain public places within the City.' In connection with the City's consideration of passage of such an ordinance, Eden Prairie council members have been lobbied by representatives of one or more organizations that have received funding grants from the Minnesota Partnership for Action Against Tobacco (MPAAT). On June 27, 2002, the Ramsey County District Court filed an order and memorandum in the case of State v. Phillip Morris (Ramsey Co. Dist. Ct. File No. C1-94-8565). In that decision, the Court commented on MPAAT's use of tobacco settlement funds primarily to promote enactment of local smoking bans. Specifically, the Court's Memorandum stated: MPAAT's four year focus on the environmental smoking ordinance smoking prohibition approach, in derogation to providing assistance to individual tobacco users, is without legal or factual justification. You ask whether the Ramsey County District Court's order affects the authority of the City to regulate smoking in public places. The District Court's Order and Memorandum does not affect the right of the City to regulate smoking. The Court's analysis, including the language quoted above, addresses the manner in which MPAAT has expended funds. It does not refer to the authority of local governments to regulate smoking. It was MPAAT's"focus" on promoting regulatory ordinances that was found to be without legal basis,not the ordinances themselves. 1 You also enclosed a copy of a draft ordinance for illustrative purposes only. In_accordance with the scope of this Office's opinion function as discussed in Op. Atty. Gen. 629-a, May 9, 1975,we have not analyzed the draft and express no opinion on it. Facsimile:(6511 297-1235-TrY:(651)252-2525-Toll Free Lines:(800)657-3787(Voice).(800)3664,812 tTTYI-111iv_;1_state.mn.us An Equal Opportunity Employer Who V lues Diversity Printed en 50`r recycled paper(15%•c post concumer content) ' Richard F.Rosow July 25,2002 Page 2 As a result, the Court's Order does not affect the authority of the City of Eden Prairie to regulate smoking in public places. Very truly yours, . ..‘4(.61/ Kenneth E. aschke, r. Assistant Attorney General State of Minnesota AG:#698931-v1 AGENDA EDEN PRAIRIE CITY COUNCIL TUESDAY, OCTOBER 1,2002 7:00 PM,CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Sherry Butcher,Ron Case,David Luse and Jan Mosman CITY STAFF: City Manager Scott Neal,Parks &Recreation Director Bob Lambert,Public Works • Director Eugene Dietz,Management and Budget Director Don Uram,City Planner Michael Franzen, City Attorney Ric Rosow and Council Recorder Theresa Brundage I. ROLL CALL/CALL THE MEETING TO ORDER II. PLEDGE OF ALLEGIANCE III. RESOLUTION IN SUPPORT OF THE EDEN PRAIRIE SCHOOLS REFERENDUM (p• 1) IV. COUNCIL FORUM INVITATION V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS VI. MINUTES A. COUNCIL WORKSHOP HELD SEPTEMBER 17,2002 (p. 3) B. CITY COUNCIL MEETING HELD SEPTEMBER 17,2002 (p. 10) VII. CONSENT CALENDAR A. CLERK'S LICENSE LIST (p. 23) B. ROLLING HILLS SENIOR HOUSING PUD AMENDMENT by Covenire Care LLC. 2nd Reading for Planned Unit Development District Review with waivers on 1.02 acres and Zoning District Change from Office to RM-2.5 on 1.02 acres, and Site Plan Review on 1.02 acres. Location: Prairie Center Drive and Rolling Hills Road (Ordinance for PUD District Review and Zoning District Change, and Resolution for Site Plan Review) (p. 24) C. RIVER VIEW by Wooddale Builders. 2nd Reading for Planned Unit Development District Review with waivers on 34.73 acres and Zoning District Change from Rural to R1-13.5 on 18.07 acres. Location: South of Riverview Road at Parker Drive. (Ordinance for PUD District Review and Zoning District Change) (p. 46) D. ADOPT RESOLUTION APPROVING FINAL PLAT OF CRESTWOOD PONDS ADDITION(p. 84) CITY COUNCIL AGENDA October 1,2002 Page 2 E. ADOPT RESOLUTION APPOINTING ELECTION JUDGES AND STUDENT JUDGES FORTH:GENERAL ELECTION,NOVEMBER 5,2002 (p. 87) F. ADOPT RESOLUTION AWARDING CONTRACT FOR PIONEER TRAIL/FLYING CLOUD DRIVE AREA UTILITY IMPROVEMENTS, I.C. 52-204 (p. 91) G. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH HTPO,INC., FOR DESIGN AND CONSTRUCTION ADMINISTRATIVE SERVICES FOR STREET AND STORM SEWER IMPROVEMENTS IN THE HILLCREST/ ALPINE NEIGHBORHOOD (p. 95) H. APPROVE CHANGE ORDER NO. 1 FOR THE CHARLSON PHASE II IMPROVEMENTS FROM INGRAM EXCAVATING,INC. (p. 102) I. AUTHORIZE ISSUANCE OF A GRADING PERMIT TO SUPERVALU FOR EXPANSION OF EXISTING PARKING FACILITIES BY 74 STALLS (p. 105) J. ADOPT THE RESOLUTION TO ACCEPT AND AUTHORIZE EXECUTION OF THE ALTERNATE ENFORCEMENT GRANT (p. 107) K. AWARD CONTRACT FOR I.C.98-5467, GLENSHIRE ADDITION WETLAND MITIGATION AND I.C. 02-5572,WATER TREATMENT PLANT WETLAND MITIGATION(p.109) VIII. PUBLIC HEARINGS/MEETINGS A. SOUTHWEST STATION by North American Properties of Minnesota. Request for Guide Plan Change from Regional Commercial to High Density Residential on 8.89 acres,Planned Unit Development Concept Amendment on 15.55 acres,Planned Unit Development District Review with waivers on 15.55 acres, Zoning District Change from Rural to Commercial Regional Service on 6.66 acres, and from Rural to RM-2.5 on 8.89 acres, Site Plan Review on 15.55 acres, and Preliminary Plat of 20.3 acres into 6 lots. Location: North of Technology Drive, south of T.H. 312 and west of Prairie Center Drive. (Resolution for PUD Concept Amendment,Ordinance for PUD District Review and Zoning District Change,Resolution for Comprehensive Guide Plan Change, and Resolution for Preliminary Plat) (p. 112) IX. PAYMENT OF CLAIMS X. ORDINANCES AND RESOLUTIONS A. RESOLUTION PERTAINING TO EXPENDITURE OF CITY FUNDS (p. 144) B. FIRST READING OF AN ORDINANCE AMENDING CITY CODE SECTION 2.05 RELATING TO MAYOR AND COUNCILMEMBER SALARIES (p. 149) CITY COUNCIL AGENDA October 1,2002 Page 3 XL PETITIONS,REQUESTS AND COMMUNICATIONS XII. REPORTS OF ADVISORY BOARDS &COMMISSIONS XIII. APPOINTMENTS A. PARKS,RECREATION AND NATURAL RESOURCES COMMISSION(p. 151) XIV. REPORTS OF OFFICERS A. REPORTS OF COUNCILMEMBERS B. REPORT OF CITY MANAGER C. REPORT OF PARKS AND RECREATION DIRECTOR D. REPORT OF COMMUNITY DEVELOPMENT DIRECTOR E. REPORT OF PUBLIC WORKS DIRECTOR F. REPORT OF PUBLIC SAFETY DIRECTOR G. REPORT OF MANAGEMENT AND BUDGET DIRECTOR H. REPORT OF CITY ATTORNEY XV. OTHER BUSINESS XVI. ADJOURNMENT CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO.2002- A RESOLUTION ENCOURAGING CITIZENS TO SUPPORT THE EDEN PRAIRIE SCHOOL DISTRICT'S REQUEST FOR VOTER SUPPORT OF A NEW OPERATING LEVY WHEREAS,the quality of local schools is of critical importance to the quality of life in a community; and WHEREAS,current trends in operating costs and state funding for local school districts has forced sizable cuts in staffing and programs; and WHEREAS,Eden Prairie Schools have demonstrated good stewardship of their resources; and WHEREAS,Eden Prairie Schools desire to continue to provide excellent educational programming in the future; and WHEREAS,Eden Prairie Schools have demonstrated that the adoption of a new operating levy by School District voters is essential to enable it to continue its educational mission. BE IT RESOLVED that the Eden Prairie City Council supports the efforts of the Eden Prairie School Board to provide educational excellence in Eden Prairie School; and BE IT FURTHER RESOLVED that the City Council encourages Eden Prairie voters to support the School District's request for a new operating levy by voting in the affirmative at the general election on November 5, 2002. ADOPTED by the Eden Prairie City Council on this 1st day of October 2002. ATTEST: Kathleen Porta, City Clerk Nancy Tyra-Lukens,Mayor Eden Prairie Chamber of Commerce 7901 Flying Cloud Drive,Suite 270, Eden Prairie, MN 55344 CO Ciy+ Date: September 12, 2002 RESOLUTION Given the critical importance of high quality schools to our local community and its businesses, Given that Eden Prairie Schools has provided its community with quality educational services in an efficient manner, Given that the district has demonstrated its accountability through its School Board, its Financial Advisory Committee, and its participation with the Chamber of Commerce, Given that current trends in operating costs and funding from the State has already forced sizable cuts in staffing and programs, and that such cuts are likely to continue for the foreseeable future, Given that the impact to property taxes of the proposed levy increase appears relatively reasonable, Be it resolved that the Eden Prairie Chamber of Commerce supports the School District's current operating levy request. Joe Stoebner Patrick MulQueeny Chairman of the Board President A UNAPPROVED NIITUTES EDEN PRAIRIE CITY COUNCIL WORKSHOP/FORUM TUESDAY,SEPTEMBER 3,2002 CITY CENTER 5:00- 6:25 PM, HERITAGE ROOM II 6:30—7:00 PM, COUNCIL CHAMBER CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Sherry Butcher, Ron Case, and Jan Mosman CITY STAFF: City Manager Scott Neal,Public Safety Director Jim Clark,Public Works Director Eugene Dietz, Director of Parks and Recreation Services Bob Lambert,Management and Budget Director Don Uram, City Attorney Ric Rosow, and Recorder Lorene McWaters Heritage Room II I. CALL MEETING TO ORDER Mayor Tyra-Lukens called the meeting to order at 5:35 p.m. Councilmember Case was not present for the budget portion of the discussion. He was present for the Open Podium/Forum portion of the meeting. Mayor Tyra-Lukens said Councilmember Luse had called her to,say he was unable to attend the meeting because he was ill. She said Luse had asked her to let everyone know he had decided not to run for Council. II. APPROVAL OF AGENDA III. 2003 BUDGET WORKSHOP Neal started the workshop off by noting that 2003 is the second year of a two-year budget process, so this budget should be considered an amendment of the proposed 2-year budget already approved by the Council. Uram reviewed a memorandum on the 2003 amended budget dated August 30, 2002, that was distributed to all Councilmembers. Uram said the 2003 general fund budget totals $31.6 million and includes a transfer to Capital Improvement fund of$608,724. This represents a 1.3%increase over the 2002 budget. Uram explained that the 2003 levy limit for Eden Prairie is 3%,based on an estimated inflation rate of.76%,household growth of 1.6%, commercial industrial growth of.65%. Uram said general fund operating expenditures equal$27.9 million—a 5.1%increase over 2002. This includes increases in legal counsel and employee benefits and training. Debt obligations decreased from$2.8 million to $2.36 million and include a tax 3 Council Workshop/Forzan September 17,2002 Councilmember Butcher said she would like to review some definitions before proceeding. She asked Rosow for clarification on what is considered a"public place." Rosow said his definition of"public"was based on that concepts set forth in the Minnesota Clean Indoor Air Act.Under this definition anyplace the public is"invited into"is considered public. Butcher said she considers a"public place"to mean that which is owned by everyone,i.e., land and buildings owned by the City or other governmental entity. Councilmember Case said he liked Butcher's distinction. Councilmember Luse asked the other Councilmembers to remember that he is just the messenger,but that they must be very careful about what they are proposing—so would they ban smoking on highways,too, since they are technically public property? Case said he believed they were talking only about indoor air quality. Butcher said they may want tp include places like outdoor park pavilions and amphitheatres. Tyra-Lukens asked if smoking out of doors at factories, offices, etc.,would be allowed. All agreed that smoking outside of buildings and in vehicles would be acceptable. Tyra-Lukens asked if the Councilmembers supported the 75%non-smoking/25% smoking ratio for hotel rooms called for in the hypothetical ordinance. She noted this is pretty much already the business standard. Case said he thinks it is worthwhile for the Council to codify what is already common practice,to send a message about what they are trying to do. Butcher said she is not comfortable regulating what hotels do in relation to smoking. She would rather offer a set of guidelines,under which compliance would be voluntary. She said enforcement of regulations would be very difficult, and she thinks the marketplace should drive what hotels do,not the government. Case said that although he thinks smoking regulation should be taken care of at the state level,passing an ordinance at the City-level will help move the State in this direction. City Attorney Rosow said that it is not appropriate to include guidelines in an ordinance. The Council could include regulations in an ordinance and pass an accompanying resolution that would list guidelines. Case said the Council may want to consider forming a task force to draw up guidelines and facilitate implementation. Rosow said the term"private vehicles"should be clarified. Would a truck owned by a conglomeration and driven by an employee be considered private or public? Tyra- Lukens said she would consider these exempt. Luse suggested making it as simple as possible—regulation should not apply to vehicles unless they are inside a building(i.e., in a garage.) Rosow said he would strike the word"private." Tyra-Lukens said it seems that most companies are already limiting smoking to outside areas or rooms with separate HVAC systems. Butcher asked Rosow for a quick overview of the Minnesota Clean Indoor Air Act. Rosow said the act prohibits smoking inside buildings except in designated areas. The designated areas are set by the proprietor and are required only to use existing barriers. Case said he has heard from hundreds of people,most of whom say they want to get away from second-hand smoke. However,they are asking that the Council not take any action that will hurt business. Case said his goal is to increase indoor air quality without harming businesses. He said he spoke to a doctor at Abbott Northwestern Hospital. The Council Workshop/Forum September 17,2002 doctor indicated there are so many people smoking outside the hospital entrances,he feels it would be better to provide a separate room for them.Then others would not have to endure the second-hand smoke to get in the doors. Case said he could support an ordinance that would provide for indoor smoking areas as long as they have separate HVAC systems. He reiterated that he felt the Council's mandate was to craft a symbolic ordinance with as much substance as the people of Eden Prairie want. Butcher said maybe a guideline is more in line with what residents want—a one-size-fits-all ordinance may not be productive. Councilmember Luse said he's had more than 4,000 e-mails, letters and phone calls on the proposed smoking ordinance. He says he believes he has been consistent in his commentary on having difficulty with the issue because there is no clear consensus. He said he believes he was illegally lobbied by Isis Stark in the study of his home on April 12, 2002. Luse asked how the Council proposes to go to the residents with an ordinance that is crystal clear when the conversation has come down to what will be legal versus what will be suggested. He said he does not see a decisive conclusion. Beyond a lack of resources to police an ordinance, Luse asked how the Council expects to go to the community with a modified smoking ban when they were told in April that the facts warrant a 100%ban. Tyra-Lukens said she would like to pull the Council back to the issue at hand. Luse asked how the Council proposes to police what is currently legal(smoking) in private buildings. He said he was told by the same people who illegally had lobbied him that HVAC systems do not do enough to protect others from second-hand smoke. Tyra- Lukens asked if Luse was proposing to ban smoking from all indoor areas. Luse said he was just cautioning the Council to be very clear, and take the time to really define things. Mosman said that in relation to factories,the main consideration is to protect non- smokers from second-hand smoke, and using separate ventilation systems may be the most effective way to do this. Case said he would be okay with banning smoking inside all businesses,but he could also support separate rooms with separate HVAC systems as an incremental step toward eliminating second-hand smoke. Councilmember Mosman agreed. Luse said that at the end of the day the majority of residents will define the issue based on how it affects their pocketbooks. If banning smoking will cost the community money in terms of tax revenues,possibly in the millions of dollars,he does not believe they will support an ordinance. Case said that type of obfuscation was not helpful, that referring to millions of dollars in lost taxes ignores the fact that adverse health effects of second-hand smoke cost Minnesotans billions of dollars. Case asked if the Council could continue the Workshop after the regular Council Meeting since it was clear they would not reach a consensus in the time remaining. Rosow said the Council could continue the Workshop after the regular meeting. IV. OTHER TOPICS Council Chamber - V. OPEN FORUM (Scheduled participants, 6:30-6:50 p.m.) 5 Council Workrhop!Forran September 17,2002 A. PAUL WENDORFF—SMOKING ORDINANCE Mr.Wendorff said he is an 18-year resident of Eden Prairie, and that he does not represent any group. He said he expressed his concerns in July about potential conflicts of interest on the Council regarding a proposed smoking ordinance. Since then,he has attended meetings with City staff;the Attorney General, and Eden Prairie residents. Wendorff referred Council to a request he faxed earlier in the day requesting a task force to investigate the conduct of the Eden Prairie City Council regarding the proposed smoking ban ordinance. Wendorff gave a 50-page document outlining the basis for his request to City Manager Neal. Wendorff s concerns included what he called illegal MPAAT lobbying of Councilmembers. Mayor Tyra-Lukens asked City Attorney Rosow to comment on Wendorff s request. Rosow said using the term"illegal"in relation to MPAAT's activities is misleading. A distinction should be made between illegal activity and something that should not have ideally been done. Councilmember Luse said he had concerns about MPAAT going back to April 16. He said that wrongdoing is a matter of perception as it relates to public service. The Council must make sure everything it does is done properly. Even if something is not illegal,the Council has to deal with the matter of perception. Councilmember Case said every resident has the right to raise individual concerns, as Mr. Wendorff has done. However, the Council needs to remember that Wendorrf is just one individual, and represents only himself. He said the Council should carefully consider how to respond to his proposal,which would be costly to implement. Case said to interrupt the process the Council has begun with respect to a smoking ordinance would constitute a gross misspending of funds. Case said it is his understanding that if Wendorrf wishes to pursue his concerns,he can file a court case. He said the Council would have to look to the City Attorney for counsel on the issue. Mayor Tyra-Lukens recommended adding the issue to the regular meeting agenda so they could move on to the next speaker. B. TOM DAY—MINNESOTA RESTAURANT ASSOCIATION Mayor Tyra-Lukens said Mr.Day had informed the City Manager's Office he would be unable to attend the Forum. C. GARY CHANEN—OUTBACK STEAKHOUSE Mr. Chanen said he is a managing partner of Outback Steakhouse in Eden Prairie. He said he was disturbed by an article in the previous week's Eden Prairie News. He said restaurant owners have invested millions of dollars in Eden Prairie, and it is offensive to be accused of not being concerned about public health. He asked what the City is doing for restaurants and said telling restaurants what to do now is unacceptable. He said the Mayor's comment in the article regarding her belief that large numbers in the community want smoke-free restaurants was offensive. Chanen said he feels the Mayor is attempting to blacklist some restaurants, even though they are already moving toward non-smoking on their own. He said he has heard rumors of the City taking cigarette sales out of the liquor stores,which he called"a petty effort." He asked the Council to"stop a runaway train—stop Council Workshop/Forum September 17,2002 this ordinance."He left copies of letters from an Eden Prairie tanning business and a manufacturing company,both opposing a smoking ban. VI. OPEN PODIUM(Unscheduled participants, 6:50-7:00 p.m.) Eden Prairie High School student Stacy Beritz read a letter she wrote in support of a smoking ban. Kathy Paltz,an Eden Prairie resident and former smoker, said if she had known how unhealthy second-hand smoke was she never would have exposed her children to it. She asked the Council to approve a second-hand smoke ordinance. Pat,resident of Bloomington,said she has to carry oxygen with her for medical reasons. She said she realizes her health problems are a result of her own smoking,but her mother also suffered from emphysema even though she never smoked.Pat said she cannot go into most Eden Prairie restaurants because smoking is allowed. She would like to see restaurant environments free of smoke. Cindy Schultz,Eden Prairie resident, said she supports a smoking ordinance because it will help save lives. She is concerned about talk of a compromise ordinance, and asked the Council to stand fine. III. PROPOSED SMOKING ORDINANCE(continued from before reizular Council Meeting) Mayor Tyra-Lukens reconvened the Workshop at 9:25 p.m. Tyra-Lukens suggested picking up the discussion at smoking in factories and manufacturing facilities. Councilmember Butcher asked to make a couple of statements before continuing the discussion. She said the Councilmembers' oath says they will remain independent of thought until all information is gathered on an issue. She had gotten a letter from the Chamber of Commerce just last Friday,stating that they are against a smoking ordinance. In light of this,Butcher said she would like to ask the Council to develop a resolution asking the state to review the second-hand smoke issue in relation to the Minnesota Clean Indoor Air Act. Butcher stated that she is also in favor of voluntary guidelines rather than legal regulations. Case said he would like to try to figure out where points of consensus exist among the Councilmembers. He said it appears that two Councilmembers would vote against even a compromise ordinance. If the Council passes an ordinance with only a 3-2 vote,he asked what message that would convey to the community. Case said that he liked the Eden Prairie School District's policy of no- smoking on school grounds. He felt the City could comfortably pass a similar policy for government-owned properties. He said his goal still is to not have smoking anywhere in the state,but that the Council will be doing themselves and the community a disservice if they pass a ban that is viewed negatively by surrounding communities. He thinks it might be more effective to"take control of what we can control, and get away from trying to regulate private business." Case said he would like to pledge the Council to continue to carry the flag to eliminate Council Workshop/Fonon September 17,2002 second-hand smoke. He said Councilmembers could promote the cause to other cities. He envisions 20 mayors marching into St.Paul demanding action. Butcher said 28 communities have already written to the State asking them to address the issue of second-hand smoke. She said the issue is too confusing to address on a local level, and action must take place on a comprehensive, statewide basis. Mayor Tyra- Lukens said Butcher presented some compelling reasons to deal with the second-hand smoke issue on an incentive basis. She said she agrees the worst thing the Council could do would be to pass an ordinance that is disrespected and disregarded. Though her goal would be for everywhere to be smoke-free, she asked if it would be fair to "sacrifice the City"in quest of a local ordinance. However, she said she is not convinced sending a resolution to the State would be effective, and she would not be satisfied with only a set of guidelines. She suggested holding a candidate forum before the upcoming election to find out where legislative candidates stand on the issue. Case said he has spoken with members of the Chamber and visited nine or 10 Eden Prairie restaurants. He believes there is a lot of room for restaurants to do what is right and still make money. He said this issue would be perfect for a task force that would focus on the positive—how to help bring about incremental changes in second-hand smoke exposure. Councilmember Mosman said that although she is no medical expert, she feels she has to rely on the data presented by medical experts that second-hand smoke is detrimental to health. If this is true,they are not doing their duty as Councilmembers if they pass a weak ordinance. She pointed out that the Attorney General indicated it was within the authority of the Council to pass an ordinance. Butcher said that while all of the Councilmembers agree that smoking is bad,there are a lot of things that are unhealthy that the Council doesn't regulate. She said individual rights and the right to choose are issues as well. Individuals still have a choice of whether or not to go into a place that allows smoking. She said a good start would be to ban smoking on all publicly-owned properties, even out-of-doors. She said she has always been in favor of forming a task force that would include health organizations and local businesses and would develop incentive-based initiatives. This task force could also draft a resolution for the City to send to the State. Councilmembers could also take the issue to the MLC and urge them to explore options. Case said if the Council's actions don't include regulations,he would at least like to develop a list of"hopes"for directions in which the City would like restaurants and businesses to move in relation to second- hand smoke. One goal could be for smoke-free lunch times in restaurants throughout the City. Case said any goals the Council establishes must be monitored over time. Case also suggested"running a major survey"of the community on the issue. He said the task force could gather data over a year and then readdress the issue. Tyra-Lukens asked if the other Councilmembers had an idea of what measures restaurants in town might support. She feels it is important to have the restaurants on board with whatever a task force might propose. She said she would ultimately want to see smoke-free family dinner time in restaurants in addition to lunch hours. Case suggested offering incentives, such as free advertising,for restaurants that go smoke-free. Tyra-Lukens said she liked the concept of trial periods,after which a review would take 9 Council Workshop/Forwn September l7,2002 place. Butcher said she would not be comfortable with any type of regulation that was not first put before a task force and/or the Chamber. Councilmember Mosman said she was concerned about bumping the issue up to the State level since that is where the majority of tobacco industry anti-regulation money is spent. Councilmember Luse said he felt a lot of progress had been made,but he cautioned the Council that it sounded like they were going back to square one with the idea of appointing a task force. He said no one is going to be happy and he doesn't believe it will"have a whole lot of meat to it"unless actions are based on what constituents want and what is in their best interest. He asked the Council to be cautious about legal exposure. He said as an American he tends to err on the side of freedom and individual rights. As an appointed Councilmember he errs on the side of believing that the issue is just too close to call. He does not see a mandate. He asked all sides to tone down the rhetoric and issued a challenge to all in this town to neutralize the negativity stemming from this issue. Case said he was not sure of David's position,that he has indicated he would like to err on the side of health, individual rights, and what the majority of people want. Luse said he believed he had been crystal clear. He feels it is his responsibility to err on the side of the majority,but he has yet to hear any hard numbers. Case said that • his impression is that the majority of people want a smoking ban that won't have any negative effects. Butcher said she seemed to be hearing some agreement on a ban on smoking in publicly- owned places. Tyra-Lukens and Luse said they could support such a ban. Case said he just wanted to say a few words about Luse's assertion that the Council had gone back to step one with the suggestion of forming a task force. He said he believed that the task force that is being discussed today is very different from the one proposed in April. Tyra-Lukens said she was wary of relying on statistics. Surveys are not necessarily scientific,and the results depend largely on what and how questions are asked. Rosow said he wanted to clarify the Council's direction based on the evening's discussion. His understanding was that they wished to draft an ordinance to ban smoking in all publicly owned spaces,both indoors and outdoors. By publicly owned,they meant everything owned by a government entity,not just the City. Case said he would also like staff to explore the possibility of a task force charter. Luse suggested that one of the most important tasks is to communicate to the business community what the Council will not be doing—namely regulating smoking at private businesses. The Council agreed they would hold further discussions on how to proceed at the October 1,2002,Workshop at 4:00 p.m. in the Heritage Rooms. VII. ADJOURNMENT The meeting was adjourned at 10:50 p.m. �q 1 UNAPPROVED MINUTES EDEN PRAIRIE CITY COUNCIL TUESDAY, SEPTEMBER 17,2002 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Sherry Butcher,Ron Case,David Luse and Jan Mosman CITY STAFF: City Manager Scott Neal,Public Works Director Eugene Dietz,Management and Budget Director Don Uram, City Planner Michael Franzen, City Attorney Ric Rosow and Council Recorder Theresa Brundage I. ROLL CALL/CALL THE MEETING TO ORDER II. PLEDGE OF ALLEGIANCE III. PUBLIC SAFETY PUBLIC SERVICE ANNOUNCEMENT VIDEO ON TEEN DRINKING Stephanie Rogers from the Public Safety Department presented a video showing the latest public service announcement on underage drinking. She said the announcement will be played on cable television as well as in drivers' education classes and it is the second of three videos. IV. COUNCIL FORUM INVITATION Mayor Tyra-Lukens stated that Council Forum is held the first and third Tuesday of the month from 6:30 — 7:00 p.m. in the Council Chamber. Please note that this portion of the meeting is off-camera. The Council Forum consists of two parts: scheduled and unscheduled appearances. 6:30 to 6:50 p.m. is reserved for scheduled participants. If you wish to schedule time to visit with the City Council and Department Directors, please notify the City Manager's office (at 952-949-8412) by noon of the meeting date with your request. The last 10 minutes of the Forum, from 6:50 to 7:00 p.m. is set aside for impromptu, unscheduled appearances by individuals or organizations who wish to speak to the Council. V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Luse added Item XIV.A.1. DISCUSSION ON MUNICIPAL SALES OF TOBACCO PRODUCTS and Item XIV.A.2. DISCUSSION ON A PROPOSED TASK FORCE. Case added Item XIV.A.3. DISCUSSION ON COMMUNITY FEEDBACK ON GRACE CHURCH TRAFFIC. MOTION: Butcher moved, seconded by Mosman, to approve the Agenda as published and amended.Motion carried 5-0. /0 CITY COUNCIL MINUTES September 17,2002 Page 2 VI. MINUTES A. JOINT CITY COUNCIL/COMMUNITY PLANNING BOARD MEETING, AUGUST 22,2002 MOTION: Luse moved, seconded by Mosman, to approve as published, the Minutes of the Joint City Council/Community Planning Board Meeting on held August 22, 2002. Motion carried 4-0. Butcher abstained. B. CITY COUNCIL WORKSHOP,SEPTEMBER 3, 2002 MOTION: Mosman moved, seconded by Butcher, to approve as published, the Minutes of the City Council Workshop held September 3, 2002. Motion carried 3-0. Luse and Case abstained. C. CITY COUNCIL MEETING, SEPTEMBER 3,2002 MOTION: Case moved, seconded by Butcher, to approve as published, the Minutes of the City Council Meeting held September 3, 2002. Motion carried 4-0. Luse abstained. VII. CONSENT CALENDAR A. CLERK'S LICENSE LIST B. HOUND DOG PET HOTEL by Hound Dog Pet Hotel, L.L.C. 2nd Reading Planned Unit Development District Review with waivers on 1.56 acres, Zoning District Amendment within the Commercial Regional Service Zoning District on 1.56 acres, and Site Plan Review on 1.56 acres. Location: 13013 Valley View Road (East of Children's World Daycare) (Ordinance No. 22-2002-PUD-15-2002 for PUD District Review, Zoning District Amendment, and Resolution No. 2002-143 for Site Plan Review) C. ADOPT RESOLUTION NO. 2002-144 APPROVING FINAL PLAT OF WELTERS TRAILHEAD D. AWARD CONTRACT FOR FUEL ISLAND CANOPY AT MAINTENANCE FACILITY 15150 TECHNOLOGY DRIVE E. APPROVE TWO-YEAR MAINTENANCE AGREEMENT WITH HONEYWELL FOR WATER SYSTEM CONTROL SYSTEMS F. ADOPT RESOLUTION NO.2002-145 ACCEPTING LOCAL GOVERNMENT UNIT STATUS PURSUANT TO THE WETLANDS CONSERVATION ACT FOR TH N;LOWER MINNESOTA RIVER WATERSHED DISTRICT G. ADOPT RESOLUTION NO.2002-146 APPROVING TH H;WESTERN AREA FIRE TRAINING ASSOCIATION JOINT POWERS AGREEMENT 11 CITY COUNCIL MINUTES September 17,2002 Page 3 H. AUTHORIZE THE EXTENSION OF PROFESSIONAL SERVICES WITH KERN,DEWENTER,WERE,LTD.FOR AUDITING SERVICES FOR THE YEARS ENDING 2002 AND 2003 I. ADOPT RESOLUTION APPROVING AMENDED PROJECT MANAGEMENT AGREEMENT BETWEEN HARTFORD ASSOCIATES, LLC,AND THE CITY OF EDEN PRAIRIE J. ADOPT RESOLUTION NO. 2002-147 CALLING FOR A PUBLIC HEARING NOVEMBER 12,2002,TO CONSIDER AN AMENDMENT TO TAX INCREMENT FINANCING (TIF)DISTRICT 17 FOR ROLLING HILLS (THE COLONY) SENIOR HOUSING K. ADOPT RESOLUTION NO. 2002-149 DECLARING LISTED PROPERTY ACCUMULATED BY THE POLICE DEPARTMENT AS PART OF MUNICIPAL OPERATIONS AS "ABANDONED PROPERTY" L. ADOPT RESOLUTION NO. 2002-150 DECLARING COSTS TO BE ASSESSED AND ORDERING PREPARATION OF SPECIAL ASSESSMENT HEARING ROLLS AND SETTING HEARING DATE FOR OCTOBER 15, 2002 M. APPROVE CONTRACT WITH HUBERTY MARKETING RESEARCH TO ASSIST THE CITY IN CONDUCTING A SURVEY OF THE BUSINESS COMMUNITY N. APPROVE ELECTRIC SERVICE AGREEMENT WITH MINNESOTA VALLEY ELECTRIC COOPERATIVE O. ADOPT RESOLUTION NO. 2002-151 APPROVING AMENDMENT TO THE BYLAWS OF THE SUBURBAN TRANSIT ASSOCATION MOTION: Mosman moved, seconded by Case,to approve Items A-O of the Consent Calendar.Motion carried 5-0. Tyra-Lukens announced that at the City Council Workshop, held prior to this meeting, Council discussion was not completed on the proposed smoking ordinance. Therefore, she said the workshop was recessed and will reconvene following this meeting in this chamber. VIII. PUBLIC HEARINGS/MEETINGS A. HERITAGE PRESERVATION SITE ALTERATION (Permit #2002-03-0005) by the City of Eden Prairie. Request for Approval to allow spring improvements, including relocation of the spring stand pipe to a location nearer the creek, construction of a new spring tank,parking area,interpretive sign, and bench seating at Miller Spring. Location: Miller Spring on Spring Road. CITY COUNCIL MINUTES September 17,2002 Page 4 City Manager Scott Neal said official notice of this public hearing was published in the September 5, 2002, Eden Prairie News and sent to 6 property owners. He said pursuant to City Code, Section 11.05, Subd. 5, permit review, the Heritage Preservation Commission has reviewed a request for a Site Alteration Permit for the Fredrick-Miller Spring, for relocation of the spring stand pipe to a location nearer the creek (east of the present location), construction of a new spring tank, parking area, interpretive panel and bench. Neal said the proposal has been reviewed by the HPC and they recommended it unanimously.He said Staff recommends approval. Case was concerned that water at the site may become undrinkable at some point in the future, and if so, how would it be closed down and signed. Dietz explained that nitrate levels for the well have periodically caused concern in the past,but the goal is to improve the situation there and make the area historically significant and also provide a paved surface that is safe. There were no comments from the audience. MOTION: Butcher moved to close the Public Hearing and approve Heritage Preservation Site Alteration Permit #2002-03-005. Seconded by Case, motion carried 5-0. B. ROLLING HILLS SENIOR HOUSING PUD AMENDMENT by Shelter Corporation. Request for Guide Plan Change from Office to High Density Residential on 1.02 acres, Planned Unit Development Concept Amendment on 1.02 acres, Planned Unit Development District Review with waivers on 1.02 acres, Zoning District Change from Office to RM-2.5 on 1.02 acres, and Site Plan Review on 1.02 acres. Location: Prairie Center Drive and Rolling Hills Road. (Resolution No.2002- 152 for PUD Concept Amendment, Ordinance for PUD District Review and Zoning District Change, and Resolution No. 2002-153 for Comprehensive Guide Plan Change) City Manager Scott Neal said official notice of this public hearing was published in the September 5, 2002, Eden Prairie News and sent to 136 property owners. He said this approved plan is a three-story, 142-unit senior residential building, and a three- story, 17,500-sq. ft. medical office. The senior building is under construction. The amendment is changing the office building to a single story, 22-unit, skilled nursing building. The project will require a guide plan change from Office to High Density Residential. The project also requires waivers for density and parking. The Community Board voted 7-0 to recommend approval of the project to the City Council at the August 26, 2002 meeting. Neal said that changing the guide plan helps satisfy a need for senior health and social services and creates a better visual transition to the townhouses to the east. He said this project will need waivers from City Code,including density from 17.4 to 20.95 units per acre which is a waiver related to the total number of units proposed. Neal said Eden Shores Senior Campus and Realife Valley View Cooperative were 1.3 crrY COUNCIL MINUTES September 17,2002 Page 5 approved with similar waivers. The other waiver needed is parking from 2 spaces per dwelling unit to 1.0 spaces per dwelling unit. Neal said this waiver is similar to the parking requirements approved for the Eden Shores Senior project. The senior building under construction adjacent to this project was approved at .7 spaces per unit. Neal said facilities of this nature do not necessitate the number of parking stalls required in the RM-2.5 district, and the parking will sufficiently accommodate resident,visitor and staff parking. Neal stated that Jay Jensen from Shelter Corporation is present tonight to answer questions, if necessary. Franzen said Staff recommendation is for approval for two reasons: to satisfy housing goals of increasing social services to the community and also the transition to the east. He said by increasing berm height and adding trees and changing the building height is for a better visual relationship with nearby properties. Jensen said the buildings have turned out better than expected. He said the onsite rehab center with 24-hour nursing is one of the highlights of the project. There were no comments from the audience. MOTION: Case moved to close the Public Hearing and adopt the Resolution No. 2002-152 for PUD Concept Amendment on 1.02 acres; and adopt the Resolution No. 2002-153 for Comprehensive Guide Plan Change on 1.02 acres; and direct Staff to prepare a Developer's Agreement incorporating Staff and Board recommendations and Council conditions; and authorize Staff to issue a land alteration permit and footing and foundation permit. Seconded by Mosman, motion carried 5-0. C. IMPROVEMENTS FOR PIONEER TRAIL/FLYING CLOUD DRIVE AREA UTILITY IMPROVEMENTS (Resolution) City Manager Scott Neal said official notice of this public hearing was published in a recent, 2002 edition of Eden Prairie News and sent to property owners. He said the feasibility study has been in the development process for several years. The project will provide a segment of trunk watermain for the City along the Pioneer Trail corridor and provide lateral utility service to the existing building areas of Flying Cloud Field, the BFI development on Flying Cloud Drive and the proposed office warehouse development in the northwest quadrant of Pioneer Trail and Flying Cloud Drive. Neal said that City and MAC staff have recently reached a preliminary agreement regarding the benefit to Flying Cloud Field from the proposed utility improvements. This benefit is reflected in the cost-sharing proposals contained within the feasibility study. Through the public hearing process, Council will consider the staff developed cost-shared proposals with MAC and review the appropriateness of the proposed assessments to other properties abutting the improvements. MAC staff and the other property owners have reviewed the feasibility study and indicated their general acceptance. 1� CITY COUNCIL MINUTES September 17,2002 Page 6 Dietz said there are only five property owners involved in this project.He said this is a project that will build a watermain on Pioneer Trail between Staring Lake Parkway and Flying Cloud Drive, and then along Flying Cloud Drive to the control tower across from the BFI location. He said sanitary sewer will essentially follow those same routes. Dietz said this is a $1,662,000 project which we expect to assess $1,082,000 with the balance of it City cost. He said the watermain in Pioneer Trail will be part of the City's trunk system. He said the City has an arrangement with MAC where it is proposed that the City build a small portion of the project- the area in the northwest corner of Pioneer Trail and Flying Cloud Drive. He said MAC will be the contract administrator for about 85% of the project. He said they will follow the same bidding procedures and processes as the City. He said about 2/3 of the assessable costs are to MAC and the City would then special assess BFI and the other abutting properties. Dietz said the goal is to get watermain and sanitary sewer service to the BFI transfer station site by mid-summer. Case asked if the project is acceptable to Moen property owners. Dietz said they are anxious to proceed. Case asked if the City's $580,000 portion of the contribution would come out of utility enterprise funds. Dietz said it would. Neal pointed out that Staff recommends moving forward with the project. He noted that Dietz has worked closely and cooperatively with MAC on the project. There were no comments from the audience. MOTION: Luse moved to close the Public Hearing and adopt the Resolution No. 2002-154 ordering Pioneer Trail/Flying Cloud Drive Area Utility Improvements. Seconded by Case, motion carried 5-0. IX. PAYMENT OF CLAIMS MOTION: Case moved, seconded by Mosman, to approve the Payment of Claims. The motion was approved on a roll call vote, with Butcher, Case, Luse, Mosman, and Tyra- Lukens voting"aye." X. ORDINANCES AND RESOLUTIONS A. BLUFF COUNTRY VILLAGE AMENDMENT By Hustad Investment Corp. Request for Comprehensive Guide Plan Change from Neighborhood Commercial to Office on 3.0 acres, Planned Unit Development Concept Amendment on 8.8 acres, Planned Unit Development District Review on 8.8 acres, Zoning District Amendment within the Neighborhood Commercial Zoning District on 5.8 acres, Rezoning from Neighborhood Commercial to Office on 3.0 acres, Site Plan Review on 8.8 acres, and Preliminary Plat of 8.8 acres into 3 lots. Location: Hennepin Town Road and Pioneer Trail. (Resolution No. 2002-155 for Guide Plan Change, Resolution No. 2002-156 for PUD Concept Review, Ordinance for PUD District Review and Zoning District Change,Resolution No.2002-157 for Preliminary Plat) 15 CITY COUNCIL MINUTES September 17,2002 Page 7 City Manager Scott Neal stated this project was first reviewed at the August 20, 2002 City Council meeting. The City Council closed the public hearing and tabled discussion on the ordinances and resolutions until the September 17, 2002 meeting. This project is an amendment to the approved plan for Bluff Country Village located at the intersection of Hennepin Town Road and Pioneer Trail. A guide plan change from Neighborhood Commercial to Office is proposed for an office building and a daycare. There are waivers from the City Code for building height and floor area for the retail apartment building. Neal said the proposed plan includes 188 total housing units and the approved plan is 161 housing units; 94 townhouses and the approved plan is 97 townhouses; 45,000 sf of retail and the approved plan is 50,000 sf of retail; 94 apartment units located above 28,011 sf of retail located on the west side of Hennepin Town Road and a 3,200 sf restaurant, and the approved plan is 25,000 square feet of retail, 8 senior units, and 16 live work units; a 9,900 sf daycare and 9,000 sf office building located north of the pond on the east side of Hennepin Town Road and the approved plan is 40 senior units located above 11,000 sf of retail. Neal said this project was first reviewed at the June 24, 2002, Community Planning Board meeting meeting. The Community Planning Board voted to continue the project and directed the developer to address the following items: height and mass of the apartment-retail building; location and screening of the outdoor seating area for the restaurant; drive thru and bank options; and berming and landscaping along Highway 169. He said at the July 24, 2002 meeting, the Community Planning Board voted 4-3 to recommend approval of the project based on revised plans, which included the following changes: reduced building height for the commercial-apartment building from 45'- 7" to 39'-3'; roof peak reduced by 10'-8"; moved the outdoor seating area of the restaurant to the west and screened with 12-foot high conifers; eliminated the drive thru and bank options; on the daycare-office site, added a 4-6 foot berm and 18 conifer trees; increased height of the conifer trees from 7-12 feet; and reduced the size of the office building by 900 square feet and moved all parking to the south side. Franzen said there haven't been changes in the plan and there are three primary reasons Staff recommended it for approval. He said they include the design where a PUD approach was done to give it a custom look; it's a better site plan with a greater separation between the highway and housing; and mitigation of visual and traffic impacts. Tyra-Lukens noted that this is not a public hearing and an extensive presentation, as well as public hearing, took place on this amendment at the August 20, 2002 meeting. Case added that at that particular meeting, 4 Councilmembers were present and the indication was that only 3 would vote in the affirmative, with 4 needed for the vote to pass. MOTION: Case moved to adopt the Resolution No. 2002-1555 for Comprehensive Guide Plan change from neighborhood Commercial to Office on 3.0 acres; and adopt l CITY COUNCIL MINUTES September 17,2002 Page 8 the Resolution No. 2002-156 for Planned Unit Development Concept Review on 8.8acres; and Approve 1st Reading of the Ordinance for Planned Unit Development District Review on 8.8 acres and Zoning District Change from Neighborhood Commercial to Office on 3.0 acres; and adopt the Resolution No. 2002-157 for Preliminary Plat on 8.8 acres into 3 lots; and direct Staff to prepare a Developer's Agreement incorporating Staff and Board recommendations and Council conditions. The motion was seconded by Butcher. Luse said he is comfortable with the project, but is concerned about setting a precedent. Case said Council needs to do what is best for the entire City, but also needs to be concerned with the transition of neighborhoods. He said he believes the transitional border is there with this neighborhood. Butcher said she is comfortable with the project. She added that the project is very services oriented which is a plus. Mosman expressed concerns about changing the Guide Plan in return for "desirable architecture." She said other projects are approved and look good without giving something extra. Mosman also said the project is going beyond what it was originally guided for because it has more height, extra units, more mass and more traffic. She said it is not "neighborhood" scale. Tyra-Lukens said the transition of this project is well done and she is comfortable with it. Case noted that every situation is unique and if changes are made to the Guide Plan, it should be understood why they're being made. He said the Guide Plan is a living document should not be changed in any way loosely, but many changes have occurred at this particular intersection causing it to rise to the level of Regional Commercial. Franzen said he views a PUD and a waiver to be unique to each project, and because each project is different, he does not believe a precedent is being set. At completion of discussion,motion carried 4-1. Mosman opposed. XI. PETITIONS,REQUESTS AND COMMUNICATIONS XII. REPORTS OF ADVISORY BOARDS & COMMISSIONS XIII. APPOINTMENTS XIV. REPORTS OF OFFICERS A. REPORTS OF COUNCILMEMBERS CITY COUNCIL MINUTES September 17,2002 Page 9 1. DISCUSSION ON MUNICIPAL SALES OF TOBACCO PRODUCTS MOTION: Luse moved to discontinue the sale of tobacco products in all municipal liquor stores in the City of Eden Prairie, effective January 1,2003. Case said it has been discussed to possibly consider using tobacco money as seed money and directly put it back into businesses to help them meet goals set by the City, and to also raise this issue to the State level. He said he's in favor of the cause, but is concerned there has not been enough time for Council to digest it before voting on it. Tyra-Lukens said she is in favor of the motion as stated, but it would have been nice to have it on the table with other things. Luse said this is more of a moral and ethical comment and should stand on its own because it would be consistent with the Council's decision to eliminate teenage access to cigarette machines. He offered to rescind his motion for more discussion, if necessary. Butcher said she supports the motion because she feels it's important that publicly-owned properties should be separated out because they are directly impacted by Council decisions. She said she will support the ban because they are City-owned liquor stores. Mosman pointed out that in procedures for bringing items before the Council, all Councilmembers did agree to the idea that it had to be either two members initiating it or that it would be prior knowledge with information in the meeting packet. She said these procedures prevent surprise votes on potentially controversial items. Luse noted that he did discuss this with Mr. Rosow and City Manager Neal, and he is comfortable with it. Neal confirmed that Luse talked to him and the City Attorney, but it was thought that discussion would take place in the context of the ordinance. Neal said because of the recess, Council did not get far enough in deliberations to discuss this. Butcher said she sees this as a good faith effort on the part of the Council to try to make progress. Tyra-Lukens said she is in favor of the motion. Seconded by Case, motion carried 5-0. 2. DISCUSSION ON A PROPOSED TASK FORCE Luse said there has been discussion on the forming of a proposed task force to look into actions brought forward by a citizen earlier. He said it is an uncomfortable situation with no merit, and borders on the reality of the public forum in that by association, you are guilty. He said what has been brought forward is a question of conduct on behalf of this Council in actions that relate r CITY COUNCIL MINUTES September 17,2002 Page 10 to the smoking ban process. Luse said a press release has been issued asking that a citizens'task force look into the conduct of Councilmembers. Luse said it is his belief that perception is reality and he said the Council has nothing to hide and we need to get out whatever it is, under the guidance of the City Attorney.He strongly urged Council to appoint a task force. Case said this issue has been raised for several months and there have been clear answers from the City Attorney. He said individuals can perceive what they wish,but the City Attorney has said based on Council actions,there is no conflict of interest. He said anyone has the right to question actions of the Council, but it does not mean Council should react when one resident tries to bring to a standstill decisions made for the good of everyone. He said the Council represents the majority of the people. He said Council would be doing an injustice to Eden Prairie's 56,000 residents if they constantly knee-jerk react to what one person brings forth. Luse said the one particular individual represents a group of people. He does not see any personal gain by that individual as it relates to this overall issue - it is a concerned citizen. He said it is a reality that people want to know more about what happened, and it is all about the perception. Butcher said she has not had an opportunity to review the document in question and asked if Mr. Wendorff would submit or has submitted written questions and then have the City Attorney respond in written form. She said she does feel due process needs to be followed with Mr. Wendorff receiving answers to his questions. Butcher added that she supported a citizens task force at the beginning of this process and maybe some of these questions would have been answered if that had happened. Case noted that Mr. Wendorff clearly stated in his presentations that he is speaking for himself. He said he is comfortable with the questions being submitted to the City Attorney for review and answer. Luse said he is concerned that in the past, we have perceptions that are not driven by one individual, but we don't have the access to fully understand the information in past decisions. He said he thinks we have that here, and does not see that as a process that would cost a lot of money. He said if we don't get it out there exactly what it is, it becomes an individual's integrity is questioned. Mosman said there are definite rules about what can be presented in public with respect to personnel issues. She added in this situation, she feels that the questions need to be presented with responses. She said she is in support of questions in written form with written answers. Mosman noted that many hours have already been spent on responding to many e-mails from citizens regarding the issue. '9 CITY COUNCIL MINUTES September 17,2002 Page 11 Case mentioned that many people e-mail him and he does not plan to release documents that people send to him. He said as a result of Mr. Wiessner's data request many people may not now feel comfortable letting Council know their personal thoughts because this may be released to the public. He assured residents of Eden Prairie that he will not be the one to release their thoughts and concerns, but they can release anything he sends back. Case said he believes the law says that either party can release it. City Attorney Rosow clarified that correspondence between citizens and public officials is private confidential information, not public information. He said it can be released,however, from either side. Rosow said he is concerned about the process being suggested. He noted that Council has not had a chance to read the document submitted. He said it's not really a set of questions he can sit down and answer, and the problem lies in the word "investigate" when the document talks about "investigating" the ethical and moral conduct of the City Council in response to illegal and improper lobbying of Councilmembers by the American Cancer Society. Rosow said Council has no authority to conduct an investigation into potentially illegal activity of a third party. He said due process says that it's not one of Council's statutory rights to conduct investigations. He said that is properly the right and duty of other officers of the State, from the County Attorney to the Attorney General. He said rules have to be followed to protect due process rights of the parties being investigated. He said empowering a citizens task force with investigative powers is beyond the scope of the Council and would be an unwise use of resources. Tyra-Lukens stated there is nothing to hide and Council is willing to cooperate with any questions from anyone, but she is concerned with the fact that Mr. Wendorff sent this out as a press release prior to finding out if Council could legally act on it. She suggested that Council send out a press release echoing comments from the City Attorney, as well as Council's willingness to cooperate with any questions. Luse said he believes the Attorney General will not respond to a complaint unless a citizen has issued it. He said he is concerned that the press release will be issued tomorrow morning, and he is concerned about the fabric of this town.He asked Council not to add to the confusion. Case said he believes Council should completely answer this in a press release, showing that Council has no legal right to do what Mr. Wendorffs press release is asking. He said because all Councilmembers have said they have no conflict of interest, and actions have been supported by the City Attorney,this is a dead issue. Luse asked Councilmembers to go back to the consistency of his comments as to concerns that have become reality. He said it is a press release that is out CITY COUNCIL MINUTES September 17,2002 Page 12 there and his point is the process of perception. Tyra-Lukens said Council did not ignore the issue, but assessed it and obtained the Attorney General's opinion. She said Council responded to a request from 1300 people and is doing what should be done by responsible responsive representatives of the people. She said she is not willing to slow down the process to deal with one person's perception of things. She said there is no substance to the allegations. Luse said it is not about questioning anything other than trying to have a vision for the City to see what is coming, and specifically this is a parallel question process to the bigger question that has gone on since April 16 as to whether we have a ban on smoking. He said this is about what he believes that when you put into the equation the political and health issue the other economic issues along with the other rights and choices, he is hard put to know that this is anything other than a very close final decision about being 50-50, depending on how you ask the question. He said this is not about a slowdown, this is about consistency of one individual councilmember who feels very strongly that we started in the wrong direction. He said he is asking Council to separate that from the request here tonight. Tyra-Lukens clarified that not only Councilmember Luse, but all Councilmembers have made public statements and have tried to examine this issue from all points of view. Luse asked if there is another way to address the concern that it is a public document that will be in the media tomorrow. He said this is about what he believes to be an issue of closer to 50-50 on this very important health issue. Case suggested because of legal advice, Council should move forward with this and issue a press release tomorrow. Luse said he would like to honor the request that was brought forward, and he would implore Mr.Rosow to look at it. Neal stated prior to this meeting, Staff had already planned to issue a press release summarizing Council's deliberations. He advised Council that without regard to motives or content, to look at this as a request for public information. He said some of the information is public and requests should follow the standard process governed by statutes. Neal said Mr. Wendorff should be advised of the rules for seeking public information, and he can decide whether he wants to follow those rules. 3. DISCUSSION ON COMMUNITY FEEDBACK ON GRACE CHURCH TRAFFIC Case suggested Staff be directed to look at the traffic impact of the new church and report back to Council. He said there are two issues -westbound CITY COUNCIL MINUTES September 17,2002 Page 13 traffic being overridden by a police officer on Pioneer Trail at the Spring Road light and also northbound traffic at the Presbyterian church where services let out close to the same time as Grace. Tyra-Lukens said she has heard concerns about traffic stacking up westbound on Pioneer Trail due to the left turn lane when Grace Church is filling. Neal said Staff has been receiving resident concerns about the problems and a meeting with the police department is scheduled with Grace Church officials this Thursday. B. REPORT OF CITY MANAGER C. REPORT OF PARKS AND RECREATION DIRECTOR D. REPORT OF COMMUNITY DEVELOPMENT DIRECTOR E. REPORT OF PUBLIC WORKS DIRECTOR F. REPORT OF PUBLIC SAFETY DIRECTOR G. REPORT OF MANAGEMENT AND BUDGET DIRECTOR II. REPORT OF CITY ATTORNEY XV. OTHER BUSINESS XVI. ADJOURNMENT MOTION: Butcher moved, seconded by Case, to adjourn the meeting. Motion carried 5-0. Mayor Tyra-Lukens adjourned the meeting at 9:12 p.m. CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar October 1,2002 SERVICE AREA/DIVISION: ITEM DESCRIPTION: Police/C.O.P.Unit Clerk's License Application List ITEM NO.: Gretchen Laven .A These licenses have been approved by the department heads responsible for the licensed activity. License Transfer Cigarette&Tobacco Products Champps Operating Corporation (Former Licensee-Champps Entertainment,Inc.) D.B.A. Champps Americana New License Private Kennel Michelle Boyd-Dogs CITY COUNCIL AGENDA DATE: 10/01102 SECTION: Rolling Hills Senior Housing PUD Amendment SERVICE AREA/DIVISION: ITEM DESCRIPTION: ITEM NO.: Community Development Donald R. Uram Rolling Hills Senior Housing PUD Amendment s 1 Michael D. Franzen Requested Action Move to: • Approve 2nd Reading of the Ordinance for PUD District Review with waivers and Zoning District Change from Office to RM-2.5 on 1.02 acres; and • Adopt the Resolution for Site Plan Review; and • Approve the Developer's Agreement for Rolling Hills Senior Housing PUD Amendment. Synopsis This project is for the revision of an approved 3-story commercial building to a 1-story skilled care center. Attachments 1. Ordinance for PUD District Review with waivers and Zoning District Change 2. Resolution for Site Plan Review 3. Developer's Agreement ROLLING HILLS SENIOR HOUSING PUD AMENDMENT CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA SUMMARY OF ORDINANCE NO.24-2002-PUD-16-2002 AN ORDINANCE OF THE CITY OF EDEN PRAIRIE, MINNESOTA, REMOVING CERTAIN LAND FROM ONE ZONING DISTRICT AND PLACING IT IN ANOTHER, AMENDING THE LEGAL DESCRIPTIONS OF LAND IN EACH DISTRICT, AND ADOPTING BY REFERENCE CITY CODE CHAPTER 1 AND SECTION 11.99, WHICH,AMONG OTHER THINGS, CONTAIN PENALTY PROVISIONS THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE,MINNESOTA, ORDAINS: Summary: This ordinance allows rezoning of land located at Prairie Center Drive and Rolling Hills Road from the Office Zoning District to the RM-2.5 Zoning District. Exhibit A, included with this Ordinance, gives the full legal description of this property. Effective Date: This Ordinance shall take effect upon publication. ATTEST: Kathleen A.Porta, City Clerk Nancy Tyra-Lukens,Mayor PUBLISHED in the Eden Prairie News on (A full copy of the text of this Ordinance is available from City Clerk.) ROLLING HILLS SENIOR HOUSING PUD AMENDMENT CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA ORDINANCE NO.24-2002-PUD-16-2002 AN ORDINANCE OF THE CITY OF EDEN PRAIRIE, MINNESOTA, REMOVING CERTAIN LAND FROM ONE ZONING DISTRICT AND PLACING IT IN ANOTHER, AMENDING THE LEGAL DESCRIPTIONS OF LAND IN EACH DISTRICT, AND, ADOPTING BY REFERENCE CITY CODE CHAPTER 1 AND SECTION 11.99 WHICH,AMONG OTHER THINGS,CONTAIN PENALTY PROVISIONS THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE,MINNESOTA, ORDAINS: Section 1. That the land which is the subject of this Ordinance (hereinafter, the "land")is legally described in Exhibit A attached hereto and made a part hereof. Section 2. That action was duly initiated proposing that the land be removed from the Office Zoning District and be placed in the Planned Unit Development RM-2.5 Zoning District 24-2002-PUD-16-2002 (hereinafter"PUD-16-2002-RM-2.5"). Section 3. The land shall be subject to the terms and conditions of that certain Developer's Agreement dated as of October 1, 2002, entered into between Covenire Care LLC and the City of Eden Prairie, (hereinafter "Developer's Agreement"). The Developer's Agreement contains the terms and conditions of PUD-16-2002-RM-2.5, and are hereby made a part hereof. Section 4. The City Council hereby makes the following findings: A. PUD-16-2002-RM-2.5 is not in conflict with the goals of the Comprehensive Guide Plan of the City. B. PUD-16-2002-RM-2.5 is designed in such a manner to form a desirable and unified environment within its own boundaries. C. The exceptions to the standard requirements of Chapters 11 and 12 of the City Code that are contained in PUD-16-2002-RM-2.5 are justified by the design of the development described therein. D. PUD-16-2002-RM-2.5 is of sufficient size, composition, and arrangement that its construction, marketing, and operation are feasible as a complete unit without dependence upon any subsequent unit. ,r Section 5. The proposal is hereby adopted and the land shall be, and hereby is removed from the Office Zoning District, and placed in the RM-2.5 Zoning District and shall be included hereafter in the Planned Unit Development PUD-16-2002-RM-2.5 and the legal descriptions of land in each district referred to in City Code Section 11.03, subdivision 1, subparagraph B, shall be and are amended accordingly. Section 6. City Code Chapter 1 entitled "General Provisions and Definitions Applicable to the Entire City Code Including Penalty for Violation" and Section 11.99 entitled "Violation a Misdemeanor" are hereby adopted in their entirety by reference, as though repeated verbatim herein. Section 7. This Ordinance shall become effective from and after its passage and publication. FIRST READ at a regular meeting of the City Council of the City of Eden Prairie on the 17th day of September, 2002, and finally read and adopted and ordered published in summary form as attached hereto at a regular meeting of the City Council of said City on the 1st day of October, 2002. ATTEST: Kathleen A.Porta, City Clerk Nancy Tyra-Lukens,Mayor PUBLISHED in the Eden Prairie News on EXHIBIT A PUD Legal Description—Rolling Hills Senior Housing Lots 2, Rolling Hills Senior Housing ROLLING HILLS SENIOR HOUSING PUD AMENDMENT CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO.2002- A RESOLUTION GRANTING SITE PLAN APPROVAL FOR ROLLING HILLS SENIOR HOUSING PUD AMENDMENT BY COVENIRE CARE LLC WHEREAS, Covenire Care LLC Corporation, has applied for Site Plan approval of Rolling Hills Senior Housing PUD Amendment to build a 1-story skilled care center by an Ordinance approved by the City Council on October 1, 2002; and WHEREAS,the Community Planning Board reviewed said application at a public hearing at its August 26, 2002 meeting and recommended approval of said site plans; and WHEREAS, the City Council has reviewed said application at a public hearing at its September 17, 2002 meeting. NOW, THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE, that site plan approval be granted to Covenire Care LLC to build a 1-story skilled care center, based on plans dated September 17, 2002, between Covenire Care LLC, and the City of Eden Prairie. ADOPTED by the City Council of the City of Eden Prairie this 1st day of October, 2002. Nancy Tyra-Lukens,Mayor ATTEST: Kathleen A.Porta, City Clerk DEVELOPMENT AGREEMENT ROLLING HILLS SENIOR HOUSING 2002 AMENDMENT THIS AGREEMENT is entered into as of October 1, 2002,by Covenire Care,L.L.C., a Minnesota Limited Liability Company, hereinafter referred to as "Developer," and the CITY OF EDEN PRAIRIE, a municipal corporation,hereinafter referred to as "City": WITNESSETH: WHEREAS, the parties desire to amend the Developer's Agreement between Hartford Financial Services, L.L.C., and the City of Eden Prairie, as to Lot 2, dated October 3, 2000 (hereinafter the"Developer's Agreement"). WHEREAS, Covenire Care, L.L.C., a Minnesota Limited Liability Company, is the successor in interest to Hartford Financial Services,L.L.C. WHEREAS,Developer has applied to City for Guide Plan Amendment from Office to High Density Residential on 1.02 acres;Planned Unit Development Concept Amendment on 1.02 acres; Planned Unit Development District Review with waivers on 1.02 acres;Zoning District Change from Office to High Density Residential on 1.02 acres; and Site Plan Review on 1.02 acres; legally described on Exhibit A(the"Property"); NOW,THEREFORE,in consideration of the City adopting Resolution No. • for Guide Plan Change,Ordinance No. for Planned Unit Development Concept Amendment, Ordinance No. 2002-PUD- -2002 for Planned Unit Development District Review and Zoning District change from Office to High Density Residential, and Resolution No. for Site Plan Review, Developer agrees to construct, develop and maintain the Property as follows: 1. PLANS: Developer agrees to develop the Property in conformance with the materials revised and stamp dated September 10,2002,reviewed and approved by the City Council on September 17, 2002, and attached hereto as Exhibit B, subject to such changes and modifications as provided herein. 2. EXHIBIT C: Developer agrees to the terms, covenants, agreements, and conditions set forth in Exhibit C. 3. CROSS ACCESS, PARKING, AND MAINTENANCE AGREEMENT: Prior to issuance of any building permit for the Property,the Developer shall provide a signed cross access,parking,and maintenance agreement between proposed Lot 1 and 2,Block 1,Rolling Hills Senior Housing. This Agreement shall address joint vehicle access and maintenance in parking areas, driveways and storm sewers. All of these facilities shall be privately owned and maintained by the Developer or Owner. Prior to the issuance of any building permit for the Property,Developer shall submit to the City Engineer proof that the cross access and maintenance agreement has been recorded in the Hennepin County Recorder's Office/Registrar of Titles' Office. 4. DEVELOPER'S RESPONSIBILITY FOR CODE VIOLATIONS: In the event of a violation of City Code relating to use of the Land construction thereon or failure to fulfill an obligation imposed upon the Developer pursuant to this Agreement, City shall give 24 hour notice of such violation in order to allow a cure of such violation,provided however, City need not issue a building or occupancy permit for construction or occupancy on the Land while such a violation is continuing,unless waived by City. The existence of a violation of City Code or the failure to perform or fulfill an obligation required by this Agreement shall be determined solely and conclusively by the City Manager of the City or a designee. 5. DEVELOPER'S RESPONSIBILITY FOR ITS CONTRACTORS: Developer shall release,defend and indemnify City,its elected and appointed officials,employees and agents from and against any and all claims, demands, lawsuits, complaints, loss, costs (including attorneys' fees), damages and injunctions relating to any acts, failures to act, errors, omissions of Developer or Developer's consultants,contractors,subcontractors,suppliers and agents. Developer shall not be released from its responsibilities to release, defend and indemnify because of any inspection, review or approval by City. 6. EXTERIOR MATERIALS: Prior to building permit issuance,Developer shall submit to the City Planner,and receive the City Planner's written approval of a plan depicting exterior materials and colors to be used on the buildings on the Property. Prior to issuance of any occupancy permit for the Property,Developer agrees to complete implementation of the approved exterior materials and colors plan in accordance with the terms and conditions of Exhibit C, attached hereto. 7. GRADING,DRAINAGE,AND EROSION CONTROL PLANS: A. FINAL GRADING AND DRAINAGE PLAN: Developer agrees that the grading and drainage plan contained in Exhibit B is conceptual. Prior to the release of a land 31 alteration permit for the Property, Developer shall submit and obtain the City Engineer's written approval of a final grading and drainage plan for the Property. The final grading and drainage plan shall include all water quality ponds, storm water detention areas and other items required by the application for and release of a land alteration permit. All design calculations for storm water quality and quantity together with a drainage area map shall be submitted with the final grading and drainage plan. Prior to release of the grading bond, Developer shall certify to the City that the water quality pond conforms to the final grading plan. Prior to issuance of any occupancy permit for the Property,Developer shall complete implementation of the approved plan Developer shall employ the design professional who prepared the final grading plan. The design professional shall monitor construction for conformance to the approved final grading plan and City erosion control policy. The design professional shall provide a fmal report to the City certifying completion of the grading in conformance the approved final grading plan and City erosion control policy. B. EROSION CONTROL PLAN: Prior to issuance of a grading permit,Developer shall submit to the City Engineer and obtain City Engineer's written approval of an erosion control plan for the Property. The erosion control plan shall include all boundary erosion control features,temporary stockpile locations and turf restoration procedures: All site grading operations shall conform to the City's Erosion Control Policy labeled Exhibit D,attached hereto and made a part hereof. Prior to release of the grading bond,Developer shall complete implementation of the approved plan. Developer shall remove any sediment that accumulates in the existing and/or proposed sedimentation pond during construction. Developer shall provide preconstruction and post construction surveys to the City. 8. IRRIGATION PLAN: Developer shall submit to the City Planner and receive the City Planner's written approval of a plan for irrigation of the landscaped areas on the Property. Developer agrees that the irrigation system shall be designed such that water is not directed on or over public sidewalks or trails. Developer agrees to complete implementation of the approved irrigation plan in accordance with the terms and conditions of Exhibit C prior to issuance of any occupancy permit for the Property. 9. LANDSCAPE PLAN: Prior to building permit issuance,the Developer shall submit to the City Planner and receive the City Planner's written approval of a final landscape plan for the Property. The approved landscape plan shall be consistent with the quantity,type,and size of plant materials shown on the landscape plan on Exhibit B. Developer shall furnish to the City Planner and receive the City Planner's approval of a landscape bond equal to 150%of the cost of said improvements as required by City Code. 3a Prior to issuance of any occupancy permit for the Property,Developer agrees to complete implementation of the approved landscape plan in accordance with the terms and conditions of Exhibit C. 10. MECHANICAL EQUIPMENT SCREENING: Developer shall submit to the City Planner,and receive the City Planner's written approval of a plan for screening ofmechanical equipment on the Property. For purposes of this paragraph, "mechanical equipment" includes gas meters, electrical conduit,water meters,and standard heating,ventilating,and air-conditioning units. Security to guarantee construction of said screening shall be included with that provided for landscaping on the Property, in accordance with City Code requirements. Developer shall complete implementation of the approved plan prior to issuance of any occupancy permit for the Property. If,after completion of construction of the mechanical equipment screening,it is determined by the City Planner,in his or her sole discretion,that the constructed screening does not meet the Code requirements to screen mechanical equipment from public streets and differing, adjacent land uses, then the City Planner shall notify Developer and Developer shall take corrective action to reconstruct the mechanical equipment screening in order to cure the deficiencies identified by the City Planner. Developer agrees that the City will not release the security provided until Developer completes all such corrective measures. 11. PUD WAIVERS GRANTED: The city hereby grants the following waivers to City Code requirements within the High Density Residential Zoning District through the Planned Unit Development District Review for the Property and incorporates said waivers as part of PUD • Density of 20.95 units per acre. City Code allows up to 17.4 units per acre. • Parking of 1.0 space per dwelling unit. City Code requires 2.0 spaces per dwelling unit. 12. RETAINING WALLS: Prior to issuance by the City of any permit for grading or construction on the Property, Developer shall submit to the Chief Building Official, and obtain the Chief Building Official's written approval of detailed plans for the retaining walls identified on the grading plan in Exhibit B. These plans shall include details with respect to the height,type of materials,and method of construction to be used for the retaining walls. Developer agrees that the materials to be used shall be compatible with those used on adjacent lands within the Rolling Hills Senior Housing Planned Unit Development. Developer agrees to complete implementation of the approved retaining wall plan in accordance with the terms and conditions of Exhibit C,attached hereto,prior to issuance of any occupancy permit for the Property. 33 13. SIDEWALK AND TRAIL CONSTRUCTION: Developer shall submit to the Parks and Recreational Services Director and obtain the Director's written approval of detailed plans for sidewalks and trails to be constructed on the Property. Developer shall convey access easements for such sidewalks and trails in such locations as determined by the Parks and Recreation Services Director,prior to release of the final plat for any portion of the property. Sidewalks and trails shall be constructed in the following locations: A. A five-foot wide concrete sidewalk to be located from Prairie Center Drive along Rolling Hills Road connecting to the existing sidewalk beginning at the Pulte townhome development as depicted in Exhibit B, attached hereto. B. A five foot wide concrete sidewalk to be located from Preserve Boulevard along Prairie Center Drive to Rolling Hills Road as depicted in Exhibit B,attached hereto. Developer agrees to complete implementation of the approved plans in accordance with the terms of Exhibit C prior to issuance of any occupancy permit for the Property. 14. TREE REPLACEMENT: Developer agrees to replace trees currently located on the existing berm adjacent to the southeast property line with plant material of the same type and size if they are displaced with the grading or retaining wall installation. e. Prior to issuance of any occupancy permit for the Property, Developer agrees to complete replacement of any displaced plant materials in accordance with the terms and conditions of Exhibit C, and subject to the review and release of the landscape bond as required by City Code. 15. SITE LIGHTING: Prior to building permit issuance, Developer shall submit to the City Planner and receive the City Planner's written approval of a plan for site lighting on the Property. All pole lighting shall consist of downcast shoebox fixtures not to exceed 20 feet in height. Developer shall complete implementation of the approved lighting plan prior to issuance of any occupancy permit for the Property. • 16. DEVELOPER'S AGREEMENT:All of the conditions in Developer's Agreement between Hartford Financial Services, L.L.C., and the City of Eden Prairie, dated October 3, 2000 remain in effect for the area legally described as Lot 1 Rolling Hills Senior Housing,and Lot 1 is not subject to this Development Agreement Rolling Hills Senior Housing 2002 Amendment. IN WITNESS WHEREOF,the parties to this Agreement have caused these presents to be executed as of the day and year aforesaid. DEVELOPER CITY OF EDEN PRAIRIE Covenire Care,LLC By Nancy Tyra-Lukens, Mayor Its Scott H.Neal, City Manager STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,20� by Nancy Tyra-Lukens and Scott H.Neal,respectively the Mayor and the City Manager of the City of Eden Prairie,a Minnesota municipal corporation, on behalf of said limited liability corporation. Notary Public STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,20 , by , the , a Minnesota , on behalf of the limited liability company. Notary Public EXHIBIT A DEVELOPMENT AGREEMENT-ROLLING HILLS SENIOR HOUSING Legal Description: Lots 2,Rolling Hills Senior Housing VaM3IT B DEVELOPMENT AGREEMENT—ROLLING HILLS SENIOR HOUSING Plans Architectural Site Plan dated 7/31/02 by ESG Architects,Inc. Grading,Drainage,and Erosion Control Plan dated 7/31/02 by Loucks Associates Building Addition Plantings Plan dated 7/3102 by Loucks Associates Rehabilitation Center Plans dated 7/31/02 by ESG Architects,Inc. 37 EXHIBIT C DEVELOPMENT AGREEMENT—ROLLING HILLS SENIOR HOUSING 1. Prior to any building permit issuance, Developer shall submit to the City Engineer for approval two copies of a development plan(1"=100'scale)showing existing and proposed contours,proposed streets,and lot arrangements and size,minimum floor elevations on each lot,preliminary alignment and grades for sanitary sewer,water main,and storm sewer, 100- year flood plain contours, ponding areas, tributary areas to catch basins, arrows showing direction of storm water flow on all lots,location of walks,trails,and any property deeded to the City. II. Developer shall submit detailed construction and storm sewer plans to the Watershed District for review and approval. Developer shall follow all rules and recommendations of said Watershed District. III. Developer shall pay cash park fees as to all of the Property required by City Code in effect as of the date of the issuance of each building permit for construction on the property. IV. If Developer fails to proceed in accordance with this Agreement within twenty-four(24) months of the date hereof,Developer,for itself,its successors,and assigns,shall not oppose the City's reconsideration and rescission of any PUD, Zoning Amendment, Guide Plan Change,or Site Plan review approved in connection with this Agreement,thus restoring the status of the Property before the Development Agreement and all approvals listed above were approved. V. Provisions of this Agreement shall be binding upon and enforceable against owners,their successors, and their assigns of the Property herein described. VI. The Developer hereby irrevocably nominates,constitutes, and appoints and designates the City as its attorney-in-fact for the sole purpose and right to amend Exhibit A hereto to identify the legal description of the Property after platting thereof. VII. Developer represents that it has marketable fee title to the Property, except: SE Rolling Hills,L.L.C., a Minnesota Limited Liability Company With respect to any interest in all portions of the Property which Developer is required, pursuant to this Agreement, to dedicate or convey to the City(the "Dedicated Property"), Developer represents and warrants as follows now and at the time of dedication or conveyance: A. That Developer has marketable fee title free and clear of all mortgages, liens, and other encumbrances. Prior to final plat approval,Developer shall provide to the City a current title insurance policy insuring such a condition of title. B. That Developer has not used, employed, deposited, stored, disposed of,placed or otherwise allowed to come in or on the Dedicated Property,anyhazardous substance, hazardous waste, pollutant, or contaminant, including, but not limited to, those defined in or pursuant to 42 U.S.C. § 9601,et.seq.,or Minn. Stat.,Sec. 115B.01,et. seq. (such substances,wastes,pollutants, and contaminants hereafter referred to as "Hazardous Substances"); C. That Developer has not allowed any other person to use, employ, deposit, store, dispose of,place or otherwise have,in or on the Property,any Hazardous Substances. D. That no previous owner, operator or possessor of the Property deposited, stored, disposed of, placed or otherwise allowed in or on the Property any hazardous substances. Developer agrees to indemnify, defend and hold harmless City, its successors and assigns, against any and all loss,costs,damage and expense,including reasonable attorneys fees and costs that the City incurs because of the breach of any of the above representations and warranties and/or resulting from or due to the release or threatened release of Hazardous Substances which were,or are claimed or alleged to have been,used,employed,deposited, stored, disposed of, placed, or otherwise located or allowed to be located, in or on the Dedicated Property by Developer,its employees, agents, contractors or representatives. VIII. Developer acknowledges that Developer is familiar with the requirements of Chapter 11, Zoning,and Chapter 12,Subdivision Regulations,of the City Code and other applicable City ordinances affecting the development of the Property. Developer agrees to develop the Property in accordance with the requirements of all applicable City Code requirements and City Ordinances. IX. Prior to building permit issuance, Developer shall pay to City fees for the first three (3) years' street lighting on the public streets adjacent to the Property (including installation costs, if any, as determined by electrical power provider), engineering review, and street signs. X. Developer shall submit detailed water main, fire protection, and emergency vehicle access plans to the Fire Marshal for review and approval. Developer shall follow all the recommendations of the Fire Marshal. XI. Developer acknowledges that the rights of City performance of obligations of Developer contemplated in this agreement are special,unique, and of an extraordinary character, and that, in the event that Developer violates, or fails, or refuses to perform any covenant, condition, or provision made herein, City may be without an adequate remedy at law. Developer agrees,therefore,that in the event Developer violates,fails,or refuses to perform any covenant, condition, or provision made herein, City may, at its option, institute and prosecute an action to specifically enforce such covenant, withhold building permits or rescind or revoke any approvals granted by the City. No remedy conferred in this agreement is intended to be exclusive and each shall be cumulative and shall be in addition to every other remedy. The election of anyone or more remedies shall not constitute a waiver of any other remedy. XII. Developer shall,prior to the commencement of any improvements,provide written notice to Time Warner Cable,a Minnesota Limited Partnership,the franchisee under the City's Cable Communication Ordinance (80-33) of the development contemplated by this Developer's Agreement. Notice shall be sent to Time Warner Cable, 801 Plymouth Avenue North, Minneapolis,Minnesota 55411. XIII. Prior to building permit issuance,all fees associated with the building permit shall be paid to the Inspections Department,including;Building permit fee,plan check fee,State surcharge, metro system access charge(SAC),City SAC and City water access charge(WAC),and park dedication. Contact Metropolitan Waste Control to determine the number of SAC units. XIV. Prior to building permit issuance, existing structures,walls and septic systems (if present) shall be properly abandoned or removed as required by City ordinance and all permits obtained through the Inspections Department. XV. Prior to building permit issuance,provide two copies of an approved survey or site plan(1"_ 200 scale)showing proposed building location and all proposed streets,with approved street names, lot arrangements and property lines. XVI. The City shall not issue any building permit for the construction of any building,structure,or improvement on the Property until all requirements listed in this Exhibit C have been satisfactorily addressed by Developer. XVII. No failure of the City to comply with any term,condition,covenant or agreement herein shall subject the City to liability for any claim for damages,costs or other financial or pecuniary charges. No execution on any claim, demand, cause of action or judgment shall be levied upon or collected from the general credit, general fund or taxing powers of the City. XVIII. Prior to issuance of the first building permit for the Property,Developer shall permanently demarcate the location of the boundary of the conservation easement on each lot property line or corner with permanent four-foot tall posts. A 2 %2 by 6 inch sign or decal reading "Scenic/Conservation Easement Boundary,City of Eden Prairie",will be affixed to the top of the post. EXHIBIT D EROSION CONTROL POLICY August 1, 1997 1. All construction projects permitted by the City of Eden Prairie which results in the temporary disturbance of vegetative or non-vegetative surfaces protecting soils from erosion require the use of Best Management Practices(BMP's) as outlined in the Minnesota Pollution Control Agency's manual,Protecting Water Quality in Urban Areas,to mitigate the impact of erosion on wetland and water resources. The City Engineer or the Director of Inspections may impose special conditions to permits which stipulate erosion control procedure's and/or direct the installation of erosion control features or the clean up of erosion at construction sites. Permits affected by this policy include all grading permits, building permits, and permits for the installation of utilities. 2. All erosion control systems stipulated in the permit application shall be installed prior to the issuance of the permit. Supplemental erosion control systems ordered by the City Engineer or the Director of Inspections shall be installed within 48 hours of that order. 3. All erosion control systems must be maintained by the applicant in a functional condition until the completion of turf and/or structural surfaces which protect the soil from erosion. The applicant must inspect erosion control biweekly and immediately after each rainfall event of.5 inches or more. Needed maintenance shall be performed within 48 hours. 4. Best Management Practices(BMP's)shall be utilized at all construction sites to minimize the trackage or spillage of soil on public streets or highways. BMP's may include,but are not limited to,rock construction entrances,washing stations,frequent cleaning of streets adjacent to the construction site or limiting operations when site conditions are unmanageable. Trackage or spillage of soil on a public street or highway must be cleaned by power sweepers within the time frame stipulated in the permit special conditions or as ordered by the City Engineer or the Director of Inspections. 5. If erosion breaches the perimeter of a construction site, the applicant shall immediately develop a clean up and restoration plans, obtain the right-of-entry from the adjoining property owner, and implement the clean up and a restoration plan within 48 hours of obtaining the adjoining property owner's permission. In the event eroded soils enter onto or are tracked or spilled on a public street,highway,sidewalk or trail,the applicant shall remove the soil material and thoroughly sweep the street or sidewalk surface within four hours. If eroded soils enter,or entrance appears imminent,into wetlands or other water bodies,clean up and repair shall be immediate. The applicant shall provide all traffic control and flagging required to protect the traveling public during the clean up operations. 6. When an applicant fails to conform to any provision of this policy within the time stipulated in a written notification,the City may take the following actions: 11 a. Withhold the scheduling of inspections and/or the issuance of a Certificate of Occupancy or other approvals. b. Direct the correction of the deficiency by City personnel or separate contract. c. Withhold the issuance of building permits d. At its option,institute and prosecute an action to enjoin violations of this Agreement and/or an action to specifically enforce performance of this Agreement The issuance of a permit constitutes a right-of-entry for the City or its contractor to enter upon the construction site for the purpose of correcting deficiencies in erosion control. All costs,including but not limited to, attorneys' fees and engineering fees incurred by the City in correcting erosion control deficiencies or enforcing this policy shall be reimbursed by the applicant. All invoices for erosion control correction shall be due and payable within 30 days. Invoices not paid within 30 days shall accrue interest at a rate of 1%per month or the highest legal rate. Each charge for correction of erosion deficiencies shall be a lien upon the property to which the permit applies. Invoices more than 30 days old on September 30 or any year or on any other date as determined by the City Engineer or the Director of Inspections may be assessed against the property. As a condition of the permit, the owner shall waive notice of any assessment hearing to be conducted by the City, concur that the benefit to the property exceeds the amount of the proposed assessment and waive all rights by virtue of Minnesota Statute 429.081 or otherwise to challenge the amount or validity of the assessment. I,We,The Undersigned,hereby accept the terms and conditions of the Erosion Control Policy dated August 1, 1997 as set forth and agree to fully comply therewith to the satisfaction of the City of Eden Prairie, Minnesota. By: By: Owner's Signature Applicant's Signature Title Title Date: Date: OWNERS' SUPPLEMENT TO DEVELOPMENT AGREEMENT BETWEEN COVENIRE CARE LLC AND THE CITY OF EDEN PRAIRIE THIS AGREEMENT,made and entered into as of October 1,2002,by and between SE Rolling Hills,L.L.C., a Minnesota Limited Liability Company, ("Owner"), and the CITY OF EDEN PRAIRIE ("City"): For,and in consideration of,and to induce City to adopt Resolution No. for Guide Plan Change, Resolution No. for Planned Unit Development Concept Review, Ordinance No. for Planned Unit Development District Review and Zoning District Change from Office to RM- 2.5, and Resolution No. for Site Plan Review, as more fully described in that certain Developer's Agreement entered into as of October 1, 2002 by and between by Covenire Care, L.L.C., a Minnesota Limited Liability Company, and City("Development Agreement"),Owner agrees with City as follows: 1. If Covenire Care, L.L.C., fails to commence development in accordance with the Development Agreement and fails to obtain an occupancy permit for all of the improvements referred to in the Development Agreement within 24 months of the date of this Owners' Supplement, Owner shall not oppose the City's reconsideration and rescission of Resolution No. for Guide Plan Change,Resolution No. for Planned Unit Development Concept Review, Ordinance No. for Planned Unit Development District Review and Zoning District Change from Office to RM—2.5, and Resolution No. for Site Plan Review, thus restoring the status of the Property before the Development Agreement and all approvals listed above were approved. 2. This Agreement shall be binding upon and enforceable against Owner, its successors, and assigns of the Property. 3. If Owner transfers this Property, Owner shall obtain an agreement from the transferee requiring that such transferee agree to all of the terms, conditions and obligations of"Developer" in the Development Agreement. 3 IN WITNESS WHEREOF,the parties to this Agreement have caused these presents to be executed as of the day and year aforesaid. SE Rolling Hills,L.L.C., CITY OF EDEN PRAIRIE By Its General Partner Nancy Tyra-Lukens,Mayor By Its Scott H.Neal, City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2002,by Nancy Tyra-Lukens and Scott H.Neal,respectively the Mayor and the City Manager of the City of Eden Prairie,a Minnesota municipal corporation, on behalf of said corporation. Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of , 2002, by , the of , a Minnesota , on behalf of the limited liability company. Notory Public y`( EXIT A OWNERS SUPPLINENT-ROLLING HILLS SENIOR HOUSING Legal Description: Lots 2, Rolling Hills Senior Housing 5 CITY COUNCIL AGENDA DATE: 10/01/02 SECTION: Consent Agenda SERVICE AREA/DIVISION: ITEM DESCRIPTION: ITEM NO.: Community Development ylL Donald R.Uram River View ` e ` Scott A. Kipp Requested Action Move to: • Approve 2nd Reading of the Ordinance for PUD District Review with waivers and Zoning District Change from Rural to R1-13.5 on 18.07 acres; and • Approve the Development Agreement for River View Synopsis This is for 29 single-family lots. Attachments 1. Ordinance for PUD District Review with waivers and Zoning District Change 2. Development Agreement RIVER VIEW CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA ORDINANCE NO. 25-2002-PUD-17-2002 AN ORDINANCE OF THE CITY OF EDEN PRAIRIE, MINNESOTA, REMOVING CERTAIN LAND FROM ONE ZONING DISTRICT AND PLACING IT IN ANOTHER, AMENDING THE LEGAL DESCRIPTIONS OF LAND IN EACH DISTRICT, AND, ADOPTING BY REFERENCE CITY CODE CHAPTER 1 AND SECTION 11.99 WHICH,AMONG OTHER THINGS, CONTAIN PENALTY PROVISIONS THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE,MINNESOTA, ORDAINS: Section 1. That the land which is the subject of this Ordinance (hereinafter, the "land")is legally described in Exhibit A attached hereto and made a part hereof. Section 2. That action was duly initiated proposing that the land be removed from the Rural Zoning District and be placed in the Planned Unit Development R1-13.5 Zoning District 25-2002-PUD-17-2002 (hereinafter"PUD-17-2002-R1-13.5"). Section 3. The land shall be subject to the terms and conditions of that certain Development Agreement dated as of October 1, 2002, entered into between Wooddale Builders, and the City of Eden Prairie, (hereinafter "Development Agreement"). The Development Agreement contains the terms and conditions of PUD-17-2002-R1-13.5, and are hereby made a part hereof. Section 4. The City Council hereby makes the following findings: A. PUD-17-2002-R1-13.5 is not in conflict with the goals of the Comprehensive Guide Plan of the City. B. PUD-17-2002-R1-13.5 is designed in such a manner to form a desirable and unified environment within its own boundaries. C. The exceptions to the standard requirements of Chapters 11 and 12 of the City Code that are contained in PUD-17-2002-R1-13.5 are justified by the design of the development described therein. D. PUD-17-2002-R1-13.5 is of sufficient size, composition, and arrangement that its construction, marketing, and operation are feasible as a complete unit without dependence upon any subsequent unit. Section 5. The proposal is hereby adopted and the land shall be, and hereby is removed from the Rural Zoning District, and placed in the R1-13.5 Zoning District and shall be included hereafter in the Planned Unit Development PUD-17-2002-R1-13.5 and the legal descriptions of land in each district referred to in City Code Section 11.03, subdivision 1, subparagraph B,shall be and are amended accordingly. Section 6. City Code Chapter 1 entitled "General Provisions and Definitions Applicable to the Entire City Code Including Penalty for Violation" and Section 11.99 entitled "Violation a Misdemeanor" are hereby adopted in their entirety by reference, as though repeated verbatim herein. Section 7. This Ordinance shall become effective from and after its passage and publication. FIRST READ at a regular meeting of the City Council of the City of Eden Prairie on the 3rd day of September, 2002, and finally read and adopted and ordered published in summary form as attached hereto at a regular meeting of the City Council of said City on the 1st day of October, 2002. ATTEST: Kathleen A. Porta, City Clerk Nancy Tyra-Lukens,Mayor PUBLISHED in the Eden Prairie News on RIVER VIEW CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA SUMMARY OF ORDINANCE NO. 25-2002-PUD-17-2002 AN ORDINANCE OF THE CITY OF EDEN PRAIRIE, MINNESOTA, REMOVING CERTAIN LAND FROM ONE ZONING DISTRICT AND PLACING IT IN ANOTHER, AMENDING THE LEGAL DESCRIPTIONS OF LAND IN EACH DISTRICT, AND ADOPTING BY REFERENCE CITY CODE CHAPTER 1 AND SECTION 11.99, • WHICH,AMONG OTHER THINGS, CONTAIN PENALTY PROVISIONS THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE,MINNESOTA, ORDAINS: Summary: This ordinance allows rezoning of land located at South of Riverview Road at Parker Drive from the Rural Zoning District to the R1-13.5 Zoning District. Exhibit A, included with this Ordinance, gives the full legal description of this property. Effective Date: This Ordinance shall take effect upon publication. ATTEST: Kathleen A.Porta, City Clerk Nancy Tyra-Lukens,Mayor PUBLISHED in the Eden Prairie News on (A full copy of the text of this Ordinance is available from City Clerk.) 9 EXHIBIT A RIVER VIEW Legal Description PUD District Review That part of Government Lot 2, Section 36, Township 116, Range 22, Hennepin County, Minnesota, lying easterly of the following described line and its extensions: Commencing at the northwest corner of Government Lot 1, said Section36; thence on an assumed bearing of South 88 degrees 52 minutes 24 seconds East along the north lines of said Government Lot 1 and 2 a distance of 1750.00 feet to the point of beginning of the line to be described; thence South 00 degrees 10 minutes West, 1500 feet more or less, to the northerly shoreline of the Minnesota River and said line there terminating. Being registered land as evidenced by Certificate of Title No. 759113. Zoning District Change That part of Government Lot 2, Section 36, Township 116, Range 22, Hennepin County, Minnesota, described as follows: Commencing at the northwest corner of Government Lot 1, said Section 36; thence South 88 degrees 53 minutes 00 seconds East, assumed bearing along the north line of said Government Lot 1 and 2 a distance of 1,750.00 feet to the actual point of beginning; thence South 00 degrees 09 minutes 24 seconds West, a distance of 904.44 feet; thence South 81 degrees 12 minutes 58 seconds East, a distance of 884.42 feet to the east line of said Government Lot 2; thence North 00 degrees 11 minutes 04 seconds West, along said east line of Government Lot 2, a distance of 596.60 feet; thence northwesterly along a non-tangential curve concave to northeast having a central angle of 18 degrees 18 minutes 41 seconds, and a radius of 298.09 feet for an arc distance of 95.27 feet, the chord of said curve bears North 33 degrees 50 minutes 33 seconds West; thence North 24 degrees 41 minutes 12 seconds West, tangent to said curve, a distance of 202.76 feet; thence northwesterly along a tangential curve concave to the southwest, having a central angle of 38 degrees 03 minutes 01 seconds and a radius of 358.09 fee, for an arc distance of 237.81 feet to said north line of Government Lot 2; thence North 88 degrees 53 minutes 00 seconds West, along said north line of Government Lot 2, a distance of 570.92 feet to the point of beginning. 50 DEVELOPMENT AGREEMENT River View THIS AGREEMENT is entered into as of October 1, 2002, by Wooddale Builders, Inc., a Minnesota corporation,hereinafter referred to as"Developer,"its successors and assigns,and the CITY OF EDEN PRAIRIE, a municipal corporation,hereinafter referred to as "City": WITNESSETH: WHEREAS,Developer has applied to City for Planned Unit Development Concept Review on 34.73 acres, Planned Unit Development District Review with waivers on 34.73 acres,Zoning District Change from Rural to Rl- 13.5 Zoning District on 18.07 acres,and Preliminary Plat of 34.73 acres into 29 lots and 3 outlots,legally described on Exhibit A(the"Property"); WHEREAS, Developer is not taking title to Outlots A and B, River View, (hereinafter referred to as "Outlots A and B")which are being platted as part of the approvals granted herein. NOW,THEREFORE,in consideration of the City adopting Resolution No. for Planned Unit Development Concept Review, Ordinance No. for Planned Unit Development District Review and Zoning District Change from Rural to R1-13.5 on 18.07 acres, Resolution No. for Preliminary Plat, Developer agrees to construct, develop and maintain the Property as follows: 1. PLANS: Developer shall develop the Property in conformance with the materials revised and stamp dated August 23,2002,reviewed and approved by the City Council on September 3,2002, (hereinafter the"Plans") and identified on Exhibit B, subject to such changes and modifications as provided herein. 5 2. EXHIBIT C: Developer agrees to the terms, covenants, agreements, and conditions set forth in Exhibit C. 3. ARCHAEOLOGICAL MONITORING: Prior to grading or alteration within any portion of Lots 11, 12,and 13,Block 1,or for the storm sewer outlet at the base of the bluff slope in the vicinity of the historic trail on the Property as depicted on the Plans, Developer shall arrange to have a qualified archaeology team present to monitor all grading activity in these areas, and have provisions for reburial of any remains encountered. Restoration to preconstmction,existing conditions,will be required for the historic trail segment impacted by storm sewer construction. 4. CONSERVATION EASEMENT FOR THE PROTECTION OF EXISTING TREES AND ARCHAEOLOGY SITE ON THE PROPERTY: Prior to issuance of the first building permit for the Property,Developer shall submit a Conservation Easement(Exhibit D)for review and written approval by the Director of Parks and Recreation Services,for the area delineated on the Plans. Prior to the release of the first building permit for the Property, Developer shall submit evidence to the Director of Parks and Recreation Services,that the approved Conservation Easement has been filed in the Hennepin County Recorder's/Registrar of Titles'Office. Prior to issuance of the first building permit for the Property,Developer shall permanently demarcate the location of the boundary of the conservation easement on each lot property line or corner with permanent four-foot tall posts. A 2 %2 by 6 inch sign or decal reading "Scenic/Conservation Easement Boundary,City of Eden Prairie",will be affixed to the top of the post. 5. DEVELOPER'S RESPONSIBILITY FOR CODE VIOLATIONS: In the event of a violation of City Code relating to use of the Land construction thereon or failure to fulfill an obligation imposed upon the Developer pursuant to this Agreement,City shall give 24 hour notice of such violation in order to allow a cure of such violation,provided however, City need not issue a building or occupancy permit for construction or occupancy on the Land while such a violation is continuing,unless waived by City. The existence of a violation of City Code or the failure to perform or fulfill an obligation required by this Agreement shall be determined solely and conclusively by the City Manager of the City or a designee. 6. DEVELOPER'S RESPONSIBILITY FOR ITS CONTRACTORS: Developer shall release,defend and indemnify City,its elected and appointed officials,employees and agents from and against any and all claims,demands, lawsuits, complaints, loss, costs(including attorneys' fees), damages and injunctions relating to any acts, failures to act, errors, omissions of Developer or Developer's consultants,contractors,subcontractors,suppliers and agents. Developer shall not be released from its responsibilities to release, defend and indemnify because of any inspection,review or approval by City. 7. FUTURE DEVELOPMENT: Developer acknowledges that the City has approved development plans only for proposed Lots 1-21,Block 1,Lots 1-8,Block 2, and Outlot C, RIVER VIEW, as depicted in the Plans. 8. GRADING,DRAINAGE,AND EROSION CONTROL PLANS: A. FINAL GRADING AND DRAINAGE PLAN:Developer agrees that the grading and drainage plan contained in the Plans is conceptual. Prior to the release of a land alteration permit for the Property, Developer shall submit and obtain the City Engineer's written approval of a final grading and drainage plan for the Property. The final grading and drainage plan shall include all wetland, wetland buffer strips, wetland buffer monument locations,water quality ponds,storm water detention areas and other items required by the application for and release of a land alteration permit. All design calculations for storm water quality and quantity together with a drainage area map shall be submitted with the final grading and drainage plan. Prior to release of the grading bond, Developer shall certify to the City that the water quality pond conforms to the final grading plan. Developer shall employ the design professional who prepared the final grading plan. The design professional shall monitor construction for conformance to the approved final grading plan and City erosion control policy. The design professional shall provide a final report to the City certifying completion of the grading in conformance the approved final grading plan and City erosion control policy. B. EROSION CONTROL PLAN: Prior to issuance of a land alteration permit, Developer shall submit to the City Engineer and obtain City Engineer's written approval of an erosion control plan for the Property. The erosion control plan shall include all boundary erosion control features,temporary stockpile locations and turf restoration procedures: All site grading operations shall conform to the City's Erosion Control Policy(Exhibit E),attached hereto and made a part hereof.Prior to release of the grading bond, Developer shall complete implementation of the approved plan. Developer shall remove any sediment that accumulates in the existing and/or proposed sedimentation pond during construction. Upon request by the City, Developer shall provide preconstruction and post construction surveys for evaluation by City. 9. PLANS FOR INDIVIDUAL HOME CONSTRUCTION: Prior to building permit issuance for each residential structure on each parcel of the Property,a Certificate of Survey for such parcel shall be submitted for review and written approval by the Building Department. The Certificate of Survey shall include a certification by the builder that construction of the residence is consistent with this Agreement and all exhibits attached hereto, and shall further contain the following information: A. Topography with 2 foot contour intervals for existing and proposed grades. Topography must be field verified. B. Location of structures with finished floor elevations. C. Retaining walls,type,height, and type of details. D. Location of sewer,water, and storm sewer lines. E. Method of erosion control. F. Detailed grading plans. G. No construction or grading within any conservancy easement area. H. No steepening of the natural slopes and walk out levels that meet natural grade. I. For Lots 9-17, Block 1, houses must be designed with a roof drain system and designed to direct rooftop and rear yard run-off into the rear yard catch basins. J. For Lots 9-17, Block 1, houses must be engineered design for footing, foundation, and retaining walls. 10. PRETREATMENT PONDS: Prior to final plat approval on the Property,Developer shall submit to the City Engineer and receive the City Engineer's written approval of plans and design information for all storm water quality facilities to be constructed on the Property. Developer shall complete implementation of the approved storm water quality facility plan prior to issuance of any occupancy permit for the Property. Prior to issuance of any certificate of occupancy for the Property,Developer shall provide to the City Engineer upon request,proof that the pond size has not diminished from the original design volume because of sedimentation,erosion or other causes,and that the pond has been restored to its original volume if the pond size has diminished. 11. PROTECTION OF EXISTING RIVERVIEW ROAD AND CONSTRUCTION ACCESS: It shall be the responsibility of the Developer to place a two-inch(2")overlay on existing Riverview Road from the east boundary of recently paved Riverview Road to the creek. The overlay shall be in place prior to issuance of a permit by the City for construction of the streets&utilities for the Property. All construction traffic and deliveries should come from TH 169 to the Property. 12. PUD WAIVERS GRANTED: The city hereby grants the following waivers to City Code requirements within the Rural and R1-13.5 Zoning District through the Planned Unit Development District Review for the Property and incorporates said waivers as part of PUD A. Front yard structure setback of 25 feet for Lots 9 through 16,Block 1. Code requires 30 feet. B. Lot frontage of 67 feet for Lot 9,Block 1,45 feet for Lots 10 and 11,Block 1,and 79 feet for Lot 12,Block 1. Code requires 85 feet. 59 C. Rural lot size of 1.2 acres for Outlot B. Code requires 10 acres. 13. RETAINING WALLS: Prior to issuance by the City of any permit for grading or construction on the Property, Developer shall submit to the Chief Building Official, and obtain the Chief Building Official's written approval of detailed plans for the retaining walls identified on the grading plan in the Plans. These plans shall include details with respect to the height,type of materials,and method of construction to be used for the retaining walls. Developer shall complete implementation of the approved retaining wall plan in accordance with the terms and conditions of Exhibit C, attached hereto, concurrent with the grading of the Property. 14. SIDEWALK AND TRAIL CONSTRUCTION: Prior to issuance by City of any building permit on the Property, Developer shall submit to the Director of Parks and Recreation Services and obtain the Director's written approval of detailed plans for sidewalks and trails to be constructed on the Property. Developer shall convey access easements for such sidewalks and trails in such locations as determined by the Director of Parks and Recreation Services. Sidewalks and trails shall be constructed in the following locations: A. A five-foot wide concrete sidewalk to be located on the inside portion of the loop road as depicted in the Plans. B. An eight-foot wide bituminous trail to be located on the north side of Riverview Road as depicted in the Plans. 15. SPECIAL ASSESSMENT AGREEMENT: Prior to the release of the final plat for the Property, Developer agrees to sign an assessment agreement, in the form and substance as attached in Exhibit F,with the City for trunk sewer and water assessments on an assessable area of 18.07 acres for a total amount of$93,964.00. 16. STREET AND UTILITY PLANS: Prior to issuance by the City of any permit for the construction of streets and utilities for the Property, Developer shall submit to the City Engineer,and obtain the City Engineer's written approval of plans for public streets,sanitary sewer,water and storm sewer. Plans for public infrastructures shall be of a plan view and profile on 24 x 36 plan sheets consistent with City standards. A permit fee of five percent of construction value shall be paid to City by Developer. The design engineer shall provide daily inspection,certify completion in conformance to approved plans and specifications and provide record drawings. 17. TREE LOSS-TREE REPLACEMENT: There are 14,110 diameter inches of significant trees on the Property. Tree loss related to development on the Property is calculated at 1,399 diameter inches. Tree replacement required is 185 caliper inches.Prior to the issuance of any grading permit for the Property,Developer shall submit to the City Forester and receive the City Forester's written approval of a tree replacement plan for 185 caliper inches as shown on the Plans. This approved plan shall include replacement trees of a 3-inch diameter minimum size for a shade tree and a 7-foot minimum height for conifer trees. The approved plan shall also provide that, should actual tree loss exceed that calculated herein,Developer shall provide tree replacement on a caliper inch per caliper inch basis for such excess loss. Developer shall complete implementation of the approved tree replacement plan prior to occupancy permit issuance. 18. WETLAND PLAN: Prior to release of the final plat for any portion of the Property, Developer shall submit to the Environmental Coordinator and receive the Environmental Coordinator's approval of a Wetland Plan. The approved Wetland Plan shall be consistent with the materials and requirements shown on the Plans and as required by City Code. The Plan shall include the following elements. A. Wetland Buffer Strip Vegetation Evaluation: Prior to release of the final plat for any portion of the Property,Developer shall submit a signed contract with a qualified wetland consultant, as determined by the City Manager and/or designee, for preparation of annual Buffer Reports that evaluate the condition of the wetland(s)and wetland buffer strip(s). The Buffer Reports shall be submitted no later than November 1 of the calendar year in which the buffer evaluation is required. The Buffer Reports shall provide an action plan and proposed cost for correction of any problems identified. The final Buffer Report shall be submitted two full growing seasons following completion of the development and shall evaluate the wetland and wetland buffer strip to determine if the wetland and wetland buffer strip remain in compliance with all City requirements. If any unacceptable conditions or vegetation are identified within the Buffer Reports, the Developer shall correct the area(s) identified within 90 days of submission of the Buffer Report. B. Conservation Easement: Prior to release of the final plat for any portion of the Property,Developer shall submit a Conservation Easement(Exhibit G) for review and written approval by the Environmental Coordinator,for the area delineated on the Plans. Prior to release of the first building permit for the Property,Developer shall submit evidence to the Environmental Coordinator that the approved Conservation Easement has been filed in the Hennepin County Recorder's/Registrar of Titles' Office. C. Wetland Performance Bond: Developer shall furnish to the Environmental Coordinator and receive the Environmental Coordinator's approval of a Wetland Plan performance bond,cash escrow,or letter of credit with a corporation approved by the City Manager or other guarantee acceptable to the City Manager equal to 150%of the cost, as estimated by the City Manager, of completing said Wetland Plan requirements and/or Landscaping as depicted on the Plans and as required by City Code. Said performance bond, cash escrow,letter of credit or other guarantee shall cover costs associated with the Wetland Plan during development and for two full growing seasons following completion of the development. 54 IN WITNESS WHEREOF,the parties to this Agreement have caused these presents to be executed as of the day and year aforesaid. DEVELOPER CITY OF EDEN PRAIRIE Wooddale Builders, Inc. By Its President Nancy Tyra-Lukens,Mayor Scott H.Neal, City Manager STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2002, by Nancy Tyra-Lukens and Scott H.Neal,respectively the Mayor and the City Manager of the City of Eden Prairie, a Minnesota municipal corporation, on behalf of said corporation. Notary Public STATE OF NIINNESOTA ) )ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2002,by Steven H. Schwieters,the president,of Wooddale Builders,Inc.,a Minnesota corporation,on behalf of the corporation. Notary Public EXHIBIT A DEVELOPMENT AGREEMENT-RIVER VIEW Legal Description before Final Nat — That part of Government Lot 2,Section 36,Township 116,Range 22,Hennepin County,Minnesota, lying easterly of the following described line and its extensions: Commencing at the northwest corner of Government Lot 1,said Section36; thence on an assumed bearing of South 88 degrees 52 minutes 24 seconds East along the north lines of said Government Lot 1 and 2 a distance of 1750.00 feet to the point of beginning of the line to be described;thence South 00 degrees 10 minutes West, 1500 feet more or less, to the northerly shoreline of the Minnesota River and said line there terminating. Being registered land as evidenced by Certificate of Title No. 759113. Legal Description after Final Plat Lots 1-21,Block 1; Lots 1-8,Block 2; and Outlots A,B and C,RIVER VIEW,Hennepin County, Minnesota. EXIT B DEVELOPMENT AGREEMENT -RIVER VIEW PLANS Cover Sheet dated 8/23/02 by Westwood Professional Services,Inc. Existing Conditions/Preliminary Plat dated 8/23/02 by Westwood Professional Services,Inc. Preliminary Grading,Drainage&Erosion Control Plan dated 8/23/02 by Westwood Professional Services,Inc. Preliminary Utility Plan dated 8/23/02 by Westwood Professional Services,Inc. Preliminary Tree Inventory&Preservation Plan dated 8/23/02 by Westwood Professional Services,Inc. Preliminary Tree Replacement/Landscaping Plan dated 8/23/02 by Westwood Professional Services, Inc. Lot 13 Typical Section River-View Plan dated 8/8/02 by Westwood Professional Services,Inc. 60 EXHIBIT C DEVELOPMENT AGREEMENT -RIVER VIEW I. Prior to release of any building permit, Developer shall submit to the City Engineer for approval two copies of a development plan(1"=100'scale)showing existing and proposed contours,proposed streets,and lot arrangements and size,minimum floor elevations on each lot,preliminary alignment and grades for sanitary sewer,water main,and storm sewer, 100- year flood plain contours, ponding areas, tributary areas to catch basins, arrows showing direction of storm water flow on all lots,location of walks,trails,and any property deeded to the City. II. Developer shall submit detailed construction and storm sewer plans to the Watershed District for review and approval. Developer shall follow all rules and recommendations of said Watershed District. III. Developer shall pay cash park fees as to all of the Property required by City Code in effect as of the date of the issuance of each building permit for construction on the Property. IV. If Developer fails to proceed in accordance with this Agreement within twenty-four(24) months of the date hereof,Developer,for itself,its successors,and assigns,shall not oppose the City's reconsideration and rescission of any PUD, Rezoning, and/or Preliminary Plat approved in connection with this Agreement,thus restoring the status of the Property before the Development Agreement and all approvals listed above were approved. V. Provisions of this Agreement shall be binding upon and enforceable against owners,their successors, and their assigns of the Property herein described. VI. The Developer hereby irrevocably nominates, constitutes, and appoints and designates the City as its attorney-in-fact for the sole purpose and right to amend Exhibit A hereto to identify the legal description of the Property after platting thereof. VII. Developer represents that it has marketable fee title to the Property, except: Wallace H. Hustad and Ruth K.Hustad With respect to any interest in all portions of the Property which Developer is required, pursuant to this Agreement, to dedicate or convey to the City(the "Dedicated Property"), Developer represents and warrants as follows now and at the time of dedication or conveyance: A. That Developer has marketable fee title free and clear of all mortgages, liens, and other encumbrances. Prior to final plat approval,Developer shall provide to the City a current title insurance policy insuring such a condition of title. 61 B. That Developer has not used, employed, deposited, stored, disposed of,placed or otherwise allowed to come in or on the Dedicated Property,any hazardous substance, hazardous waste, pollutant, or contaminant, including, but not limited to, those defined in or pursuant to 42 U.S.C. §9601,et.seq.,or Minn.Stat.,Sec. 115B.01,et. seq. (such substances,wastes,pollutants, and contaminants hereafter referred to as "Hazardous Substances"); C. That Developer has not allowed any other person to use, employ, deposit, store, dispose of,place or otherwise have,in or on the Property,any Hazardous Substances. D. That no previous owner, operator or possessor of the Property deposited, stored, disposed of, placed or otherwise allowed in or on the Property any hazardous substances. Developer agrees to indemnify, defend and hold harmless City, its successors and assigns, against any and all loss,costs,damage and expense,including reasonable attorneys fees and costs that the City incurs because of the breach of any of the above representations and warranties and/or resulting from or due to the release or threatened release of Hazardous Substances which were,or are claimed or alleged to have been,used, employed,deposited, stored, disposed of, placed, or otherwise located or allowed to be located, in or on the Dedicated Property by Developer,its employees, agents, contractors or representatives. VIII. Developer acknowledges that Developer is familiar with the requirements of Chapter 11, Zoning,and Chapter 12,Subdivision Regulations,of the City Code and other applicable City ordinances affecting the development of the Property. Developer agrees to develop the Property in accordance with the requirements of all applicable City Code requirements and City Ordinances. IX. Prior to release of the final plat,Developer shall pay to City fees for the first three(3)years' street lighting on the public streets adjacent to the Property(including installation costs, if any, as determined by electrical power provider), engineering review, and street signs. X. Developer shall submit detailed water main, fire protection, and emergency vehicle access plans to the Fire Marshal for review and approval. Developer shall follow all the recommendations of the Fire Marshal. XI. Developer acknowledges that the rights of City performance of obligations of Developer contemplated in this agreement are special,unique, and of an extraordinary character, and that, in the event that Developer violates, or fails, or refuses to perform any covenant, condition, or provision made herein, City may be without an adequate remedy at law. Developer agrees,therefore,that in the event Developer violates,fails,or refuses to perform any covenant, condition, or provision made herein, City may, at its option, institute and prosecute an action to specifically enforce such covenant, withhold building permits or rescind or revoke any approvals granted by the City. No remedy conferred in this agreement is intended to be exclusive and each shall be cumulative and shall be in addition to every other remedy. The election of anyone or more remedies shall not constitute a waiver of any other remedy. XIi. Developer shall,prior to the commencement of any improvements,provide written notice to Time Warner Cable,a Minnesota Limited Partnership,the franchisee under the City's Cable Communication Ordinance(80-33) of the development contemplated by this Developer's Agreement. Notice shall be sent to Time Warner Cable, 801 Plymouth Avenue North, Minneapolis,Minnesota 55411. XIII. Prior to building permit issuance,all fees associated with the building permit shall be paid to the Inspections Department,including;Building permit fee,plan check fee,State surcharge, metro system access charge(SAC),City SAC and City water access charge(WAC),and park dedication. Contact Metropolitan Waste Control to determine the number of SAC units. XIV. Prior to building permit issuance, existing structures,walls and septic systems(if present) shall be properly abandoned or removed as required by City ordinance and all permits obtained through the Inspections Department. XV. Prior to building permit issuance,provide two copies of an approved survey or site plan(1"= 200 scale)showing proposed building location and all proposed streets,with approved street names, lot arrangements and property lines. XVI. The City shall not issue any building permit for the construction of any building,structure,or improvement on the Property until all requirements listed in this Exhibit C have been satisfactorily addressed by Developer. XVII. No failure of the City to comply with any term,condition,covenant or agreement herein shall subject the City to liability for any claim for damages,costs or other financial or pecuniary charges. No execution on any claim, demand, cause of action or judgment shall be levied upon or collected from the general credit,general fund or taxing powers of the City. XVIII. Prior to issuance of the first building permit for the Property,Developer shall permanently demarcate the location of the boundary of the conservation easement on each lot property line or corner with permanent four-foot tall posts. A 2 %2 by 6 inch sign or decal reading "Scenic/Conservation Easement Boundary,City of Eden Prairie",will be affixed to the top of the post. .-3 EXHIBIT D DEVELOPMENT AGREEMENT -RIVER VIEW CONSERVATION/SCENIC EASEMENT THIS EASEMENT AGREEMENT is made this day of ,2002,by and between Wooddale Builders,Inc.,a Minnesota corporation,hereinafter referred to as"Grantor," and the CITY OF EDEN PRAIRIE, a Minnesota municipal corporation,hereinafter referred to as "City"; WHEREAS,Grantor is the fee owner of land located in Hennepin County,Minnesota,more fully described in Exhibit A, attached hereto and made a part hereof, and said land hereinafter referred to as "the Property"; and, WHEREAS, Grantor has marketable title to the Property, free and clear of all liens, mortgage, and encumbrances, except: WHEREAS, Grantor and City wish to enter into an agreement which will grant to City a conservancy/scenic easement for conservation and preservation of the terrain and vegetation,and to prohibit certain destructive acts thereon,over that portion of the Property as described in Exhibit B, hereinafter referred to as the"Easement Area, attached hereto; NOW,THEREFORE,in consideration of the premises contained herein,it is agreed by the parties as follows: 1. Grantor hereby conveys to City and its successors and assigns a conservation and scenic easement in,under,on, and over the Easement Area and City hereby accepts such conveyance. 2. The following terms and conditions shall apply to the Easement Area: A. The Easement Area shall be preserved predominantly in its natural condition. No trees, shrubs, or other vegetation shall be planted or removed from the Easement Area without the prior written consent of the City. The City will consider removal of noxious weeds, as defined by Minnesota Statutes Sections 18.76-18.88, upon submission and approval of a Vegetation Removal Plan. No vegetation cutting,fertilizer application or placement of turfgrass,such as Kentucky bluegrass,shall occur within the Easement Area. B. No building,road,sign,billboard,utility,or other structure shall be placed in the Easement Area without the prior written consent of City. C. No trash,waste, or other offensive material, soil, or landfill shall be placed upon or within the Easement Area without the prior written consent of the City. D. No change in the general topography of the Easement Area landscape, including,but not limited,to excavation,dredging,movement, and removal or placement of soil,shall be allowed within the Easement Area without the prior written consent of the City. 3. With respect to the Easement Area, Grantor represents and warrants as follows: A. That Grantor has marketable title free and clear of all liens, encumbrances and mortgages. B. That Grantor has not used,employed,deposited, stored,disposed of, placed or otherwise allowed to come in or on the Easement Area,any hazardous substance, hazardous waste, pollutant, or contaminant, including, but not limited to, those defined in or pursuant to 42 U.S.C. § 9601, et. seq., or Minn. Stat., Sec. 115B.01, et. seq. (such substances,wastes,pollutants,and contaminants hereafter referred to as "Hazardous Substances"); C. That Grantor has not allowed any other person to use, employ, deposit, store, dispose of, place or otherwise have, in or on the Easement Area, any Hazardous Substances; D. That no previous owner, operator or possessor of the easement area, deposited, stored, disposed of,placed, or otherwise allowed in or on the Easement Area any Hazardous Substances; Grantor agrees to indemnify,defend and hold harmless City,against any and all loss, costs, damage and expense,including reasonable attorneys fees and costs that City incurs because of the breach of any of the above representations or warranties and/or resulting from or due to the inaccuracy or falsity of any representation or warranty herein. 4. Grantor agrees to permanently demarcate the location of the boundary of the conservation easement on each lot property line or corner with permanent four-foot tall posts. A 2 %2 by 6 inch sign or decal reading "Scenic/Conservation Easement Boundary, City of Eden Prairie",will be affixed to the top of the post. 5. Grantor agrees to maintain the Easement Area subject to the provisions stated herein. 6. The duration of this easement is perpetual and shall bind and inure to the benefit of the parties,their successors,and assigns. '5 7. Nothing contained herein shall impair any right of City now held or hereafter acquired to construct or maintain public utilities in or on the Easement Area. IN WITNESS WHEREOF,the parties to this Agreement have caused these presents to be executed as of the day and year aforesaid. GRANTOR CITY OF EDEN PRAIRIE Wooddale Builders,Inc. Nancy Tyra-Lukens,Mayor Scott H.Neal,City Manager STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2002, by Nancy Tyra-Lukens and Scott H.Neal,respectively the Mayor and the City Manager of the City of Eden Prairie, a Minnesota municipal corporation, on behalf of said corporation. Notary Public STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2002,by ,the ,of Wooddale Builders,Inc., a Minnesota corporation, on behalf of the corporation. Notary Public EXIT E DEVELOPMENT AGREEMENT -RIVER VIEW EROSION CONTROL POLICY-AUGUST 1, 1997 1. All construction proj ects permitted by the City of Eden Prairie which results in the temporary disturbance of vegetative or non-vegetative surfaces protecting soils from erosion require the use of Best Management Practices(BMP's) as outlined in the Minnesota Pollution Control Agency's manual,Protecting Water Quality in Urban Areas,to mitigate the impact of erosion on wetland and water resources. The City Engineer or the Director of Inspections may impose special conditions to permits which stipulate erosion control procedures and/or direct the installation of erosion control features or the clean up of erosion at construction sites. Permits affected by this policy include all grading permits,building permits,and permits for the installation of utilities. 2. All erosion control systems stipulated in the permit application shall be installed prior to the issuance of the permit. Supplemental erosion control systems ordered by the City Engineer or the Director of Inspections shall be installed within 48 hours of that order. 3. The applicant must maintain all erosion control systems in a functional condition until the completion of turf and/or structural surfaces, which protect the soil from erosion. The applicant must inspect erosion control biweekly and immediately after each rainfall event of .5 inches or more. Needed maintenance shall be performed within 48 hours. 4. Best Management Practices(BMP's)shall be utilized at all construction sites to minimize the trackage or spillage of soil on public streets or highways. BMP's may include,but are not limited to,rock construction entrances,washing stations,frequent cleaning of streets adjacent to the construction site or limiting operations when site conditions are unmanageable. Trackage or spillage of soil on a public street or highway must be cleaned by power sweepers within the time frame stipulated in the permit special conditions or as ordered by the City Engineer or the Director of Inspections. 5. If erosion breaches the perimeter of a construction site, the applicant shall immediately develop a clean up and restoration plans, obtain the right-of-entry from the adjoining property owner, and implement the clean up and a restoration plan within 48 hours of obtaining the adjoining property owner's permission. In the event eroded soils enter onto or are tracked or spilled on a public street,highway,sidewalk or trail,the applicant shall remove the soil material and thoroughly sweep the street or sidewalk surface within four hours. If eroded soils enter,or entrance appears imminent,into wetlands or other water bodies,clean up and repair shall be immediate. The applicant shall provide all traffic control and flagging required to protect the traveling public during the clean up operations. 6. When an applicant fails to conform to any provision of this policy within the time stipulated in a written notification,the City may take the following actions: t�G a. Withhold the scheduling of inspections and/or the issuance of a Certificate of Occupancy or other approvals. b. Direct the correction of the deficiency by City personnel or separate contract. c. Withhold the issuance of building permits d. At its option,institute and prosecute an action to enjoin violations of this Agreement and/or an action to specifically enforce performance of this Agreement The issuance of a permit constitutes a right-of-entry for the City or its contractor to enter upon the construction site for the purpose of correcting deficiencies in erosion control. All costs,including but not limited to, attorneys'fees and engineering fees incurred by the City in correcting erosion control deficiencies or enforcing this policy shall be reimbursed by the applicant. All invoices for erosion control correction shall be due and payable within 30 days. Invoices not paid within 30 days shall accrue interest at a rate of 1%per month or the highest legal rate. Each charge for correction of erosion deficiencies shall be a lien upon the property to which the permit applies. Invoices more than 30 days old on September 30 or any year or on any other date as determined by the City Engineer or the Director of Inspections may be assessed against the property. As a condition of the permit, the owner shall waive notice of any assessment hearing to be conducted by the City, concur that the benefit to the property exceeds the amount of the proposed assessment and waive all rights by virtue of Minnesota Statute 429.081 or otherwise to challenge the amount or validity of the assessment. I,We,The Undersigned,hereby accept the terms and conditions of the Erosion Control Policy dated August 1, 1997 as set forth and agree to fully comply therewith, to the satisfaction of the City of Eden Prairie,Minnesota. By: By: Owner's Signature Applicant's Signature DEVELOPMENT NAME: Lot: Block: OWNER INFORMATION OWNER(PRINT): ADDRESS CITY STATE ZIP EXHIBIT F DEVELOPMENT AGREEMENT - RIVER VIEW AGREEMENT REGARDING SPECIAL ASSESSMENTS THIS IS AN AGREEMENT MADE THIS day of ,2002,between the City of Eden Prairie, a municipal corporation, (the "City") and Wooddale Builders, Inc., a Minnesota corporation(the"Owner"). A. The Owner holds legal and equitable title to property described as , Hennepin County, Minnesota, which property is the subject of this Agreement and is hereinafter referred to as the"Property". B. The owner desires to develop the property in such a manner that relies upon the City's trunk utility system,including trunk sanitary sewers,trunk watermains,wells,elevated storage facilities and a water treatment plant(all of which is hereafter referred to as the"Improvement"). C. The parties hereto desire to enter into an Agreement concerning the financing of the construction of the Improvements all of which will inure to the benefit of the Property. AGREEMENTS IT IS HEREBY AGREED as follows: 1. The Owners consent to the levying of assessments against the Property in the amount of $ for the Improvements. 2. The City's assessment records for the Property will show the assessments as a"pending assessment"until levied. 3. The Owners waive notice of any assessment hearing to be held at which hearing or hearings the assessment is to be considered by the City Council and thereafter approved and levied. 4. The Owners concur that the benefit to the Property by virtue of the Improvements to be constructed exceeds the amount of the assessment to be levied against the Property. The Owner waives all rights it has by virtue of Minnesota Statute 429.081 or otherwise to challenge the amount or validity of the assessments, or the procedures used by the City in apportioning the assessments and hereby releases the City,its officers,agents and employees from any and all liability related to or arising out of the imposition or levying of the assessments. 5. Special assessments levied against the Property shall be due and payable in installments, the first of which shall be payable commencing with the ad valorem taxes due and payable in 2003. 6. This agreement shall be effective immediately. -0 OWNER CITY OF EDEN PRAIRIE Wooddale Builders,Inc. A Minnesota Municipal Corporation A Minnesota corporation By: By: Nancy Tyra-Lukens,Mayor By: Scott H.Neal, City Manager STATE OF MINNESOTA ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2002, by Nancy Tyra-Lukens,the Mayor,and Scott H.Neal,the City Manager,of the City of Eden Prairie,a Minnesota municipal corporation, on behalf of the corporation. Notary Public STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of 2002,by the ,of Wooddale Builders,Inc., a Minnesota corporation, on behalf of the corporation. Notary Public 7I EXHIBIT G DEVELOPMENT AGREEMENT -RIVER VIEW CONSERVATION/SCENIC EASEMENT THIS EASEMENT AGREEMENT is made this day of ,2002 by and between ,a Minnesota corporation,hereinafter referred to as"Grantor," and the CITY OF EDEN PRAIRIE, a Minnesota municipal corporation,hereinafter referred to as "City"; WHEREAS,Grantor is the fee owner of land located in Hennepin County,Minnesota,more fully described in Exhibit A, attached hereto and made a part hereof, and said land hereinafter referred to as "the Property"; and, WHEREAS, Grantor has marketable title to the Property, free and clear of all liens, mortgage, and encumbrances, except: WHEREAS,Grantor and City wish to enter into an agreement which will grant to the City a conservancy/scenic easement for conservation and preservation of the terrain and vegetation,and to prohibit certain destructive acts thereon,over that portion of the Property as described in Exhibit B, hereinafter referred to as the "Easement Area", attached hereto; NOW,THEREFORE,in consideration of the premises contained herein,it is agreed by the parties as follows: 1. Grantor hereby conveys to City and its successors and assigns a conservation and scenic easement in, under, on, and over the `Basement Area", and City hereby accepts such conveyance. 2. The following terms and conditions shall apply to the Easement Area: A. The Easement Area shall be preserved predominantly in its natural condition. No trees, shrubs or other vegetation shall be planted or removed from the Easement Area without the prior written consent of the City. The City will consider removal of noxious weeds, as defined by Minnesota Statutes Sections 18.76-18.88, upon submission and approval of a Vegetation Removal Plan. No vegetation cutting, fertilizer application or placement of turfgrass,such as Kentucky bluegrass,shall occur within the Easement Area. B. Wetland buffer monuments must be placed at the boundaries of the wetland buffer strip as shown on Exhibit C. Removal of the wetland buffer strip monuments is not allowed. C. No building,road,sign,billboard,utility,or other structures shall be placed in the Easement Area without the prior written consent of City. D. No trash,waste, or other offensive material, soil, or landfill shall be placed upon or within the Easement Area without the prior written consent of the City. E. No change in the general topography of the Easement Area landscape, including,but not limited,to excavation, dredging,movement, and removal or placement of soil, shall be allowed within the Easement Area without the prior written consent of the City. F. Grantor may,no more than once per calendar year,remove sediment caused by stormwater drainage into a stormwater ponding area. Any removal of sediment must be pre-approved in writing by the City and be in accordance with City and Wetland conservation Act guidelines. Landscaping must be replaced in accordance with the requirements outlined in this Conservation Easement. 3. With respect to the Easement Area, Grantor represents and warrants as follows: A. That Grantor has marketable title free and clear of all liens, encumbrances and mortgages. B. That Grantor has not used, employed,deposited,stored,disposed of, placed or otherwise allowed to come in or on the Easement Area,any hazardous substance, hazardous waste, pollutant, or contaminant, including, but not limited to, those defined in or pursuant to 42 U.S.C. § 9601, et. seq., or Minn. Stat., Sec. 115B.01, et. seq. (such substances,wastes,pollutants,and contaminants hereafter referred to as "Hazardous Substances"); C. That Grantor has not allowed any other person to use, employ, deposit, store, dispose of, place or otherwise have, in or on the Easement Area, any Hazardous Substances; D. That no previous owner, operator or possessor of the easement area, deposited, stored,disposed of,placed,or otherwise allowed in or on the Easement Area any Hazardous Substances; Grantor agrees to indemnify,defend and hold harmless City,against any and all loss, costs, damage and expense, including reasonable attorneys fees and costs that City incurs because of the breach of any of the above representations or warranties and/or resulting from or due to the inaccuracy or falsity of any representation or warranty 73 herein. 4. Grantor agrees to maintain the Easement Area subject to the provisions stated herein. 5. The duration of this easement is perpetual and shall bind and inure to the benefit of the parties,their successors, and assigns. 6. Nothing contained herein shall impair any right of City now held or hereafter acquired to construct or maintain public utilities in or on the Easement Area. 7'f IN WITNESS WHEREOF,the parties to this Agreement have caused these presents to be executed as of the day and year aforesaid. GRANTOR CITY OF EDEN PRAIRIE Nancy Tyra-Lukens,Mayor Scott H.Neal, City Manager STATE OF 1VIINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2002, by Nancy Tyra-Lukens and Scott H.Neal,respectively the Mayor and the City Manager of the City of Eden Prairie, a Minnesota municipal corporation, on behalf of said corporation. Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2002,by ,the , of , a , on behalf of the Notary Public 15 EXHIBIT A "THE PROPERTY" Add legal description here. EXHIBIT B "EASEMENT AREA" Add legal description here. • 77 EXHIBIT C "EASEMENT AREA"DIAGRAM OWNERS' SUPPLEMENT TO DEVELOPMENT AGREEMENT BETWEEN WOODDALE BUILDER,INC. AND 'IRE CITY OF EDEN PRAIRIE THIS AGREEMENT, made and entered into as of October 1, 2002, by and between Wallace H. Hustad and Ruth K. Hustad,husband and wife, ("Owner"), and the CITY OF EDEN PRAIRIE ("City"): For, and in consideration of, and to induce City to adopt Resolution No. for Planned Unit Development Concept Review, Ordinance No. for Planned Unit Development District Review and Zoning District Change from Rural to R1-13.5, and Resolution No. for Preliminary Plat,as more fully described in that certain Developer's Agreement entered into as of , 2002, by and between Wooddale Builders, Inc., a Minnesota corporation,and City("Development Agreement"), Owner agrees with City as follows: 1. If Wooddale Builders,Inc., fails to commence development in accordance with the Development Agreement and fails to obtain an occupancy permit for all of the improvements referred to in the Development Agreement within 24 months of the date of this Owners'Supplement,Owner shall not oppose the City's reconsideration and rescission of Resolution No. for Planned Unit Development Concept Review,Ordinance No. for Planned Unit Development District Review and Zoning District Change from Rural to R1-13.5, and Resolution No. for Preliminary Plat, identified above, thus restoring the status of the Property before the Development Agreement and all approvals listed above were approved. 2. This Agreement shall be binding upon and enforceable against Owner,its successors, and assigns of the Property. 3. If Owner transfers this Property,Owner shall obtain an agreement from the transferee requiring that such transferee agree to all of the terms,conditions and obligations of "Developer" in the Development Agreement. Owner further acknowledges and states that it is the fee owner of that certain property described as Outlots A and B, River View, Hennepin County, Minnesota, according to the plat thereof on file or of record. Owner acknowledges that no approval has been granted by City for development of Outlots A or B,River View. Prior to any development or construction on Outlot A or B, River View, Owner shall be required to submit detailed development plans, and all other submittals required by the Eden Prairie City Code,and obtain approval of those plans and submittals by the Community Planning Board and City Council. IN WITNESS WHEREOF,the parties to this Agreement have caused these presents to be executed as of the day and year aforesaid. OWNER CITY OF EDEN PRAIRIE By Nancy Tyra-Lukens,Mayor By Scott H.Neal, City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2002,by Nancy Tyra-Lukens and Scott H.Neal,respectively the Mayor and the City Manager of the City of Eden Prairie,a Minnesota municipal corporation,on behalf of said corporation. Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2002,by Wallace H.Hustad and Ruth K. Hustad,husband and wife. Notary Public EXHIBIT A Legal Description before Final Plat That part of Government Lot 2,Section 36,Township 116,Range 22,Hennepin County,Minnesota, lying easterly of the following described line and its extensions: Commencing at the northwest corner of Government Lot 1, said Section36; thence on an assumed bearing of South 88 degrees 52 minutes 24 seconds East along the north lines of said Government Lot 1 and 2 a distance of 1750.00 feet to the point of beginning of the line to be described;thence South 00 degrees 10 minutes West, 1500 feet more or less, to the northerly shoreline of the Minnesota River and said line there terminating. Being registered land as evidenced by Certificate of Title No. 759113. Legal Description after Final Plat Lots 1-21,Block 1;Lots 1-8,Block 2; Outlots A,B and C, RIVER VIEW,Hennepin County, Minnesota. .0 Golden Triangle Land Use/Multi-Modal Transportation Evaluation Technical Advisory Team Meeting Minutes Date of Meeting: September 17,2002 Venue: Eden Prairie City Hall Attendees: Larry Blackstad,Mark Koegler,Brad Scheib,David Linda11,Al Kramer, Steve Sinell,Randy Newton,Michael Franzen,Bob Byers, and Carol Lezotte. Handouts: Mark Koegler Memorandum dated September 11, 2002,Project Schedule,Redevelopment Potential Version 2 Map, Open House Flier, Baseline Land Use Map,Transit Village Land Use Map, Baseline Spreadsheet, Current Trends Spreadsheet,Public/Private Concept Spreadsheet, Transit Village Spreadsheet,And Trip Generation Summary. Next Meeting: October 15,2002 10:00 AM Eden Prairie City Hall The following items were covered during the meeting: 1. Mark Koegler,Hoisington Koegler Group, summarized the City Council Briefing Session held on August 22.A few members of the committee expressed concern regarding the feasibility of implementing the plan. 2. Mark Koegler and Brad Schieb presented the following four land use maps and associated trip generation- Baseline-Land Use Map,which identifies little land use change except additional development on underutilized and vacant land(i.e.housing on vacant land and redevelopment of the farm). Current Trends-The Current Trends land use alternative responds to private market trends related to residential and commercial uses. It projects increases in higher density residential uses based on the success of similar projects in the Golden Triangle over the past few years. Additionally,it seeks to provide neighborhood scale commercial services appealing to the added population of area residents as well as employees in the area. Big box retail uses are also included in the concept in recognition of an active market for such uses in Eden Prairie and a deficiency of alternative sites for larger scale retail in other parts of the community. Public-Private Opportunities-The Public-Private Opportunities concept depicts a much more aggressive redevelopment effort. In addition to regional and local commercial uses similar to those identified in the Current Trends alternative,the concept shows an expansive area of medium and higher density residential development. The more extensive pattern of residential uses is shown to create a"critical mass"necessary to establish a true neighborhood rather than simply a residential area among a larger area of industrial uses. The residential uses have been located to take advantage of and to extend the existing system of open spaces and water resource areas in the Golden Triangle. Transit Village-The Transit Village concept establishes land uses in support of transit. A mix of land uses is centered on a transit hub. The mix of uses includes jobs, service,retail and housing.The transit village aims to create a walkable,mixed-use community with a diversity of housing. Mark and Brad described the trip generation of the land use scenarios. Over the course of 20 years,the transit village was forecasted to generate the least amount of trips and the baseline the greatest amount of trips. 3. The Open House is scheduled for Thursday, September 26, 2002 from 4:00 to 7:00 PM at Liberty Property Trust, 10400 Viking Drive,Eden Prairie. Presentations will be held at 4:30 and 6:00 PM. 4. The next meeting of the Technical Advisory Team will be Tuesday,October 15, 10:00 AM, at the Eden Prairie City Hall. If any of the above issues have been misrepresented or any omissions have been made,please contact Carol Lezotte, (612)348-2997. CITY COUNCIL AGENDA DATE: October 1,2002 SECTION: Consent Calendar SERVICE AREA/DIVISION: ITEM DESCRIPTION: ITEM NO.: Public Works Final Plat Approval of Crestwood Ponds Addition v( ( `�, Engineering Services Randy Slick/ Eugene A. Dietz Requested Action Move to: Adopt the resolution approving the final plat of Crestwood Ponds Addition Synopsis This proposal is located at 9617 Crestwood Terrace. The plat consists of 5.25 acres to be divided into six single family lots, one outlot and right of way dedication for street purposes. Background Information The preliminary plat was approved by the City Council August 6,2002. Second Reading of the Rezoning Ordinance and final approval of the Developer's Agreement was completed on September 3,2002. Approval of the final plat is subject to the following conditions: • Receipt of engineering fee in the amount of$300.00 • Receipt of street lighting fee in the amount of$902.00 • Prior to release of the final plat,Developer shall provide to the City a current title insurance policy insuring such a condition of title • Execution of Special Assessment Agreement for trunk utility improvements • The requirements as set forth in the Developer's Agreement • Provide a list of areas (to the nearest square foot) of all lots, outlots and road right-of-ways certified by surveyor • Execution of Special Assessment Agreement for Crestwood Terrace Street and Utility Improvements • Prior to release of final plat,Developer shall submit a signed contract with qualified wetland consultant. • Prior to release of fmal plat,Developer shall submit a Conservation Easement over Outlot A • Prior to release of final plat,Developer shall install all wetland buffer strip monuments • Prior to release of final plat, Developer shall submit a Wetland Plan to the Environmental Coordinator • Revision to plat to include a 25-foot wetland buffer. Attachments Drawing of final plat y CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO. A RESOLUTION APPROVING FINAL PLAT OF CRESTWOOD PONDS ADDITION WHEREAS,the plat of Crestwood Ponds Addition has been submitted in a manner required for platting land under the Eden Prairie Ordinance Code and under Chapter 462 of the Minnesota Statutes and all proceedings have been duly had thereunder, and • WHEREAS, said plat is in all respects consistent with the City plan and the regulations and requirements of the laws of the State of Minnesota and ordinances of the City of Eden Prairie. NOW,THEREFORE,BE IT RESOLVED BY THE EDEN PRAIRIE CITY COUNCIL: A. Plat approval request for Crestwood Ponds Addition is approved upon compliance with the recommendation of the City Engineer's report on this plat dated October 1,2002. B. That the City Clerk is hereby directed to supply a certified copy of this resolution to the owners and subdividers of the above named plat. C. That the Mayor and City Manager are hereby authorized to execute the certificate of approval on behalf of the City Council upon compliance with the foregoing provisions. ADOPTED by the Eden Prairie City Council on October 1, 2002. Nancy Tyra-Lukens,Mayor ATTEST: SEAL Kathleen A. Porta, City Clerk 5 r r r c o £ 1 M c 1 -z,.n - a c 1 .Z a - .s < Q`.0 N ! I io<' n ,Z. O q z L - p .q 1 "_ S r=-5 E o Z e I 0 > I 1 NET a p P m m s Ea c2 o —,` o� aq�� 5o1 17.3. — O — /- SOQ01'49'W 577.13 \ \147.34Z6 OL 139&07 / i r0£ 1 11I is Q \ F.' Ai. g r I \ z \ i i5I 1 12; tpN` a w 1 o` 1 QW ` 's'C- °'a A 17, N \ 1% tegel f___, ..._ co ........____._ g .,, ...-- z , ....__ ,,,,.„ ,... Za I / N o - 1 W ,, aY / 1 $ I _ ..-'1 0!' I 1 O 2 ` 7-- 1 d+ p ++ / 1 a Aga O W 3 Ore - I N00'1eoiv 9fi8.7 i ''` `� ` 4 of NN ) //�\ b b r> s 1 a_ r1.7° 'Cl '1 etti / ''. �' c , N \\i< to -ea1/4,,07.,...2...)ve /.z,o ,..& (...,,c, 4q1 CC s S \/ <YL�`/ Yz N \ \ 3 �r /, AS 3q' / rt` • c . \ / J ,rc. . q, 4,:"‘ / f r2 { N • /, •t `�'/ • • tyi`/ / Z ., / / / / / 4 CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar October 1,2002 SERVICE AREA/DIVISION: 1TEM DESCRIPTION: ITEM NO.: Office of City Manager City Clerk Resolution Appointing Election Judges/Student [[ Election Judges for November 5 General Election Requested Action: Adopt Resolution appointing election judges and student judges for the general election, November 5,2002. • Synopsis: State Statute 204B.21, Subd.2 requires appointment of election judges by the City Council at least 25 days before the election. These judges are in addition to the ones approved at the August 6,2002, City Council meeting. Attachments: Resolution CITY OF EDEN PRAIRIE H H;NNEPIN COUNTY,IVHNNESOTA RESOLUTION NO. 2002- WHEREAS,Minnesota Election Law 204B.21 requires that persons serving as election judges be appointed by the Council at least 25 days before the election. BE IT RESOLVED by the City Council of the City of Eden Prairie that the following persons have agreed to serve as election judges,student judges,or alternate judges and are appointed for the General Election to be held November 5,2002. BE IT FURTHER RESOLVED that the City Clerk is with this, authorized to make any substitutions or additions as deemed necessary. Kenneth Anderson Hannah Himmelman-Christopher Alexandra Michael Cheri Frisvold Carly Hofstedt Michelle Messer Student Judges Mallory Inman Alicia Mooty Jacob Athmann Benjamin Kimitch Nicholas Morgan Gregory Balfanz Ann Kleinert Amy Osekowsky Stuart Baxter Reed Kremer Rachel Payne Ann Clifford Ben Larson Simon Root Bradley Dodds Elizabeth Larson Eric Seebeck,Jr. Brenna Downing Emilie Laurent John Sens Caitlin Gadel Colin Leu Amy Stadem Khurrem Gold Brianna Martin Laura Taketa Sara Griffm Aja McCullough Molly Walters Karl Grindal James McMahon Thomas Walz ADOPTED by the Eden Prairie City Council on this 1st day of October 2002. ATTEST: Kathleen Porta, City Clerk Nancy Tyra-Lukens, Mayor CITY COUNCIL AGENDA DATE: October 1,2002 SECTION: Consent Calendar DEPARTMENT AREA/DIVISION: ITEM DESCRIPTION: I.C.52-204 trEM NO.: Engineering Division Award Contract for Pioneer Trail/Flying Mary Krause Cloud Drive Area Utility Improvements *�► Eugene A.Dietz Requested Action Move to: Adopt resolution awarding contract for I.C. 52-204 Pioneer Trail/Flying Cloud Drive Area Utility Improvements to S.M. Hentges & Sons, Inc. in the amount of$319,143.71. Synopsis The preliminary hearing for Pioneer Trail/Flying Cloud Drive Area Utility Improvements was held September 17, 2002, at which time Council ordered this utility improvement project. Sealed bids were received on Thursday, September 26, 2002 for the improvements. A summary of bid results and recommendation of award are attached. Background Information This project will provide sanitary sewer and water availability to Flying Cloud Field,BFI and the proposed office warehouse development in the northwest quadrant of Pioneer Trail and Flying Cloud Drive. The project costs will be assessed according to the feasibility study prepared by the City. Attachments Summary of Bids and Recommendation CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO. RESOLUTION ACCEPTING BID WHEREAS,pursuant to an advertisement for bids for the following improvement: I.C.52-204—Pioneer Trail/Flying Cloud Drive Area Utility Improvements Bids were received, opened and tabulated according to law. Those bids received are shown on the attached Summary of Bids; and WHEREAS,the City Engineer recommends award of Contract to NOW,THEREFORE,BE IT RESOLVED by the Eden Prairie City Council as follows: The Mayor and City Manager are hereby authorized and directed to enter in a Contract with S.M. Hentges & Sons, Inc. in the name of the City of Eden Prairie in the amount of $319,143.71 in accordance with the plans and specifications thereof approved by the Council and on file in the office of the City Engineer. ADOPTED by the Eden Prairie City Council on October 1,2002. Nancy Tyra-Lukens,Mayor ATTEST: SEAL Kathleen A.Porta, City Clerk z1� I 1 l Engineering•Surveying ;1 Landscape Architecture September 26, 2002 � J City of Eden Prairie 8080 Mitchell Road Eden Prairie,MN 55344 Attn: Alan Gray Re: Construction Bids for Pioneer Trail and Flying Cloud Drive Utility Improvements LC. 52-204 Dear Mr. Gray: Bids were received and opened at 10:00 a.m. on Thursday September 26, 2002, for the above referenced project. The bids are shown on the attached Summary of Bids. The Engineer's Estimate was $406,242.00. The low bidder, S.M. Hentges & Sons, Inc. came in 21% below the Engineer's Estimate at $319,143.71. The recommendation is made that the City Council award Improvement Contract 52-204 to S.M. Hentges& Sons, Inc. for the bid amount of$319143.71. This recommendation considers that the City Council reserves the right to waive minor irregularities and further reserves the right to award the contract in the best interests of the City. Respectfully, HANSEN THORP PELLINEN OLSON, INC. /two 6/. 7--7I27-- Laurie A. Johnson P.E. Principal 7510 Market Place Drive LAJ:ks Eden Prairie,MN 55344 enclosures 952-829-0700 952-829-7806 fax i r i � O Z . ' = ► . • ► 1 SUMMARY OF BIDS City of Eden Prairie I.C. 52-204 DESCRIPTION: Pioneer Trail and Flying Cloud Drive Utility Improvements BIDS OPENED: - September 26,2002 CONSULTING ENGINEER:Hansen Thorp Pellinen Olson Inc. CHECKED BY: Hansen Thorp Pellinen Olson Inc. BIDDER BID SECURITY TOTAL BID Northdale Construction Yes $457,246.02 FF Jedlicki Yes $429,891.48 Barbarossa& Sons, Inc. Yes $515,208.30 S.M.Hentges & Sons, Inc. Yes $319,143.71 GL Contracting Yes $515,358.88 Machtemes Construction, Inc. Yes $412,095.75 Motzko Companies, Inc. Yes $359,444.00 The undersigned recommend award of Contract to: S.M.Hentges & Sons,Inc. as the lowest responsible bidder for this Improvement Contract. Laurie A. Johnsgn,P.E. Alan D. . . Consulting Engineer City Engineer CITY COUNCIL AGENDA DATE: October 1,2002 SECTION: Consent Calendar DEPARTMENT AREA/DIVISION: ITEM DESCRIPTION: LC.98-5471 ITEM NO.: Engineering Division Approve Professional Services Agreement with Rodney W. Rue HTPO,Inc. for Design and Construction L Eugene A. Dietz Administration Services for Street and Storm Sewer Improvements in the Hillcrest/Alpine Neighborhood Requested Action Move to: Approve Professional Services Agreement with HTPO, Inc. for design and construction administration services for street and storm sewer improvements in the Hillcrest/Alpine neighborhood. Synopsis HTPO, Inc. has prepared a Professional Services Agreement which outlines the proposed services and estimated costs. The project involves re-construction of the streets within this neighborhood together with the installation of concrete curb and gutter and upgraded storm sewer improvements. Background Information The public hearing for the Hillcrest/Alpine improvements was held on August 20, 2002. Council approved the project and directed the preparation of plans and specifications. During the design phase of the project, the consultant and City staff will meet with affected residents regarding design issues. Attachments Professional Services Agreement dated September 10, 2002 Cc j 1 I Engineering'Surveying Z') Landscape Architecture 1 September 10,2002 Mr. Rodney Rue City of Eden Prairie 8080 Mitchell Road Eden Prairie, MN 55344 Re: Hillcrest/Alpine Street and Storm.Sewer Improvements I.C. 98-5471 Dear Mr. Rue: As requested, the following estimates for civil engineering and surveying services for Street and Storm Sewer Improvements for the Hillcrest/Alpine neighborhood as described in the feasibility report are provided for your consideration. Estimate Scope of Services $17,500.00 Preliminary Design. Includes work billed to date for preliminary design, drafting, and cost estimates during the feasibility stage. $85,000.00 Preparation of construction documents. Includes topography in area of proposed improvements,permit applications, incorporation of minor sanitary sewer repairs and watermain modifications, and preparation of easement documents if required. Does not include wetland delineation or geotechnical services. 7510 Market Place Drive Eden Prairie, MN 55344 $115,000.00 Bid administration,construction 952-829-0700 administration,staking,inspection, 952-829-7806 fax and record drawings. 9' Rue/Johnson September 10,2002 Page 2 HTPO, Inc.proposes to provide these services in accordance with the attached General Conditions. Invoices will be submitted based on actual hours worked using a 2.4 multiplier times direct personnel expense. We will keep you informed of our work progress and the above fee estimates will not be exceeded without prior approval from your office. Customary reimbursable expenses (printing,courier, and other out-of-house services and documents) are passed on directly to you. We invoice our services monthly payable within 30 days. Thank you for this opportunity to provide our services. Sincerely, HANSEN THORP PELLINEN OLSON, INC. atitq C.1. 9 el;11..ner Laurie A. Johnson, P.E. Principal LAJ:ks Enclosure Approved: City of Eden Prairie By: By: CITY OF EDEN PRAIRIE GENERAL CONDITIONS Consultant Agreement SECTION 1: PROJECT INFORMATION by Consultant's negligence. 1.1 City will provide to Consultant all known information 2.5 City agrees to render reasonable assistance requested by regarding existing and proposed conditions of the site or which Consultant to enable performance of work without delay or affects the work to be performed by Consultant. Such interference,and upon request of Consultant,to provide a suitable information shall include, but not be limited to site plans, workplace. surveys, known hazardous waste or conditions, previous laboratory analysis results,written reports,soil boring logs and 2.6 City will be•responsible for locating and identifying all applicable regulatory site response(Project Information). subterranean structures and utilities. Consultant will take reasonable precautions to avoid damage or injury to subterranean 1.2 City will transmit to Consultant any additions,updates,or structures and utilities identified and located by City and/or revisions to the Project Information as it becomes available to representatives of Utility Companies. City,its subcontractors or consultants. SECTION 3: SAMPLES 1.3 City will provide an on-site representative to Consultant within 24 hours upon request, to aid, define, supervise, or 3.1 Consultant may retain at its facility selected soil,water, or coordinate work or Project Information as requested by material samples for a maximum of 30 days after completion of Consultant the work and submission of Consultant's report,which samples shall remain the property of City. Unless otherwise directed by 1.4 Consultant will not be liable for any decision,conclusion, the City,Consultant may dispose of any samples after 30 days. recommendations, judgement or advice based on any inaccurate information furnished by City, or other 3.2 Disposal of contaminated or hazardous waste samples is the subcontractors or consultants engaged by City. responsibility of City. After said 30 days,City will be responsible to select and arrange for lawful disposal procedures that include SECTION 2: SITE LOCATION,ACCESS,PERMITS, removal of samples from Consultant's custody and transporting APPROVALS AND UTILITIES them to a disposal site. City may request, or if City does not arrange for disposal, Consultant may deliver samples to City, 2.1 City will indicate to Consultant the property lines of the freight collect,or arrange for lawful disposal and bill City at cost site and assume responsibility for accuracy of markers. plus 15%. 2.2 City will provide for right-of-way for Consultant personnel SECTION 4: FEE PAYMENT/CLAIMS and equipment necessary to perform the work. 4.1 Consultant will submit invoices to City monthly,and a final 2.3 City will be solely responsible for applying for and invoice upon completion of work. Invoices will show charges obtaining permits and approvals necessary for Consultant to based on the current Consultant Fee Schedule or other documents perform the work. Consultant will assist City in applying for as attached. and obtaining such permits and approvals as needed. It is understood that City authorizes Consultant to act as agent for 4.2 To receive any payment on this Contract,the invoice or bill City for City's responsibilities under this section including must include the following signed and dated statement "I declare signing certain forms on City's behalf such as Right-of-Way under penalty of perjury that this account, claim,or demand is forms. just and correct and that no part of it has been paid." 2.4 While Consultant will take reasonable precautions to 4.3 The balance stated on the invoice shall be deemed correct minimize any damage to property,it is understood by City that unless City notifies Consultant,in writing,of the particular item in the normal course of the work some damage may occur. that is alleged to be incorrect within ten (10) days from the The correction of any damage is the responsibility of City or, invoice date. Consultant will review the alleged incorrect item at City's direction,the damage may be corrected by Consultant within ten(10)days and either submits a corrected invoice or a and billed to City at cost plus 15%. Notwithstanding the statement indicating the original amount is correct. above,Consultant agrees to be responsible for damage caused City of Eden Prairie General Conditions Consultant Agreement Derezr.ber2OUll Page I of4 () 4.4 Payment is due upon receipt of invoice (or corrected to mislead others by omitting certain aspects contained in the invoice)and is past due sixty(60)days from invoice date. On report past due accounts,City will pay a finance charge of 1.5%per month on the unpaid balance,or the maximum allowed by law, 5.5 Consultant will consider Project Information as confidential whichever is less,until invoice is fully paid. and will not disclose to third parties information that it acquires, uncovers, or generates in the course of performing the work, 4.5 If City fails to pay Consultant within sixty (60) days except as and to the extent Consultant may,in its sole discretion, following invoice date, Consultant may deem the default a deem itself required by law to disclose. breach of its agreement, terminate the agreement, and be relieved of any and all duties under the agreement. City SECTION 6: DISPUTES/LIMITATIONS OF REMEDIES however,will not be relieved of Fee Payment responsibilities by the default or termination of the agreement. 6.1 In the event of a breach of Contract by City,the Consultant shall not be entitled to recover punitive,special or consequential 4.6 City will be solely responsible for applying for and damages or damages for loss of business. obtaining any applicable compensation fund reimbursements from various state and federal programs. Consultant may 6.2 City will pay all reasonable litigation or collection expenses assist City in applying for or meeting notification including attorney fees that Consultant incurs in collecting any requirements,however. Consultant makes no representations delinquent amount City owes under this agreement. or guarantees as to what fund reimbursement City may receive. Consultant shall not be liable for any reductions from 6.3 If City institutes a suit against Consultant,which is dismissed, reimbursement programs made for any reason by state or dropped,or for which judgement is rendered for Consultant,City federal agencies, except as may be caused by Consultant's will pay Consultant for all costs of defense, including attorney negligence. fees,expert witness fees and court costs. 4.7 City may withhold from any final payment due the 6.4 If Consultant institutes a suit against City,which is dismissed, Consultant such amounts as are incurred or expended by the dropped,or for which judgement is rendered for City,Consultant City on account of the termination of the Contract. will pay City for all costs of defense, including attorney fees, expert witness fees and court costs. SECTION 5: OWNERSHIP OF DOCUMENTS 6.5 Dispute Resolution 5.1 Consultant will deliver to City certain reports as instruments of the professional work or services performed 6.5.1 Mediation pursuant to this Agreement. All reports are intended solely for City,and Consultant will not be liable for any interpretations All claims, disputes and other matters in question (hereinafter made by others. "claim")between the parties to this Agreement,arising out of or relating to this Agreement or the breach thereof,shall be subject 5.2 City agrees that all reports and other work furnished to to mediation. If the parties have not resolved the dispute within City,or City's agents or representatives,which are not paid for, thirty(30)days of receipt of a written complaint,each party may will be returned to Consultant upon demand and will not be require the dispute be submitted for mediation. If the parties are used by City for any purpose. unable to agree on a mediator within ten(10) days following a request for mediation,either party may request that a mediator be 5.3 Unless otherwise agreed, Consultant will retain all appointed by the Fourth Judicial District Court. The parties agree pertinent records or reports concerning work and services to share equally all fees incurred in the mediation. performed for a period of at least two(2)years after report is submitted. During that time the records will be made available The parties shall submit to mediation for a minimum of eight(8) to City during Consultant's normal business hours. City may hours. The parties agree that the mediation proceedings are obtain reproducible copies of all software, manuals, maps, private and confidential. If, at the end of eight hours of drawings, logs and reports at cost, plus 15%, for data and mediation,the parties have not resolved the dispute,the parties materials not being provided as part of the scope of work for may agree to extend hours of mediation. the project. 6.5.2 Arbitration 5.4 City may use the Consultant report in its entirety and may make copies of the entire report available to others. However, At the option of the party asserting the same,a claim between the City shall not make disclosure to others of any portions or parties to this Agreement, arising out of or relating to this excerpts of a report constituting less than the entire report,or Agreement or the breach thereof,whereby the party or parties City of Eden Prairie General Conditions Consultant Agreement ( December 2000 Page 2 of 4 asserting the same claims entitlement to damages or payment 7.3 Although data obtained from discrete sample locations will be of less than $25,000.00 in aggregate may be decided by used to infer conditions between sample locations no guarantee arbitration in accordance with the Construction Industry may be given that the inferred conditions exist because soil, Arbitration Rules of the American Arbitration Association then surface and groundwater quality conditions between sample existing unless the parties mutually agree otherwise. In the locations may vary significantly, and because conditions at the event any person shall commence an action in any court for time of sample collection may also vary significantly with respect any claim arising out of or relating to this Agreement or the to soil,surface water and groundwater quality at any other given breach thereof or the Project or construction thereof or any time and for other reasons beyond Consultants control. contract for such construction, the party making a claim in arbitration may dismiss such proceedings(unless the hearing 7.4 Consultant will not be responsible or liable for the on the claim has commenced)and elect to assert its claim in interpretation of its data or report by others. such action if such party could have done so but for the provisions of this Paragraph. SECTION 8: GENERAL INDEMNIFICATION The parties agree to bear equal responsibility for the fees of 8.1 Consultant will indemnify and hold City harmless from and AAA,including the arbitrator(s). Judgement upon the award against demands,damages,and expenses caused by Consultant's rendered by the arbitrator(s) may be entered in any court negligent acts and omissions, and breach of contract and those having jurisdiction thereof. negligent acts, omissions, and breaches of persons for whom Consultant is legally responsible. City will indemnify and hold In the event that arbitration services are not available from Consultant harmless from and against demands, damages, and AAA,either party may request that an arbitrator be appointed expenses caused by City's negligent acts and omissions, and by the Fourth Judicial District Court. breach of contract and those acts, omissions, and breaches of persons for whom City is legally responsible. 6.5.3 Compliance SECTION 9: INSURANCE/WORKER'S The parties deem the dispute resolution procedure as set forth COMPENSATION herein to be an integral and essential part of this Agreement. A party's failure to comply in all respects with this procedure 9.1 Consultant represents and warrants that it has and will shall be a substantial breach of this Agreement. The maintain during the performance of this agreement Worker's arbitrator(s)shall be authorized to assess costs and attorney's Compensation Insurance coverage required pursuant to Minn. fees against a party that has failed to comply with the Stat. 176.181,subd.2 and that the Certificate of Insurance or the procedure in all respects,and,may as a condition precedent to written order of the Commissioner of Commerce permitting self arbitration,require the parties to mediate in accordance with insurance of Worker's Compensation Insurance coverage Section 6.5.1 hereof. provided to the City prior to execution of this agreement is current and in force and effect. SECTION 7: STANDARD OF CARE 9.2 Consultant shall procure and maintain professional Iiability 7.1 Because no sampling program can prove the non-existence insurance for protection from claims arising out of professional or non-presence of contaminated conditions or materials services caused by any negligent act,error or omission for which throughout the "entire" site or facility, Consultant cannot Consultant is legally liable. warrant,represent,guarantee,or certify the non-existence or non-presence, or the extent of existence or presence, of 9.3 Certificate of insurance will be provided to City upon request. contaminated conditions or materials, and City's obligation under this agreement will not be contingent upon Consultants SECTION 10: TERMINATION delivery of any warranties, representations, guarantees, or certifications. 10.1 The agreement between Consultant and City may be terminated by either party upon thirty-(30)days written notice. 7.2 Consultant's opinions,conclusions,recommendations,and report will be prepared in accordance with the proposal,scope 10.2 If the agreement is terminated prior to completion of the of work,and Limitations of Environmental Assessments and project, Consultant will receive an equitable adjustment of no warranties,representations,guarantees,or certifications will compensation. be made. Except that Consultant warrants that hardware and software will perform as represented in proposal and other parts of this agreement. City of Eden Prairie General Conditions Consultant Agreement Derenzber 2003 ICIO Page 3of4 SECTION 11: ASSIGNMENT SECTION 17: DATA PRACTICES ACT COMPLIANCE 11.1 Neither party may assign duties,rights or interests in the 17.1 The Consultant shall at all times abide by Mimi_Stat. 13.01 performance of the work without obtaining the prior written et seq., the Minnesota Government Data Practices Act, to the consent of the other party, which consent will not be extent the Act is applicable to data and documents in the unreasonably withheld. possession of the Consultant. SECTION 12: DELAYS SECTION 18: DISCRIMINATION 12.1 If Consultant is delayed in performance due to any cause In performance of this contract, the Consultant shall not beyond its reasonable control, including but not limited to discriminate on the grounds of or because of race, color,creed, strikes,riots,fires,acts of God,governmental actions,actions religion,national origin,sex,marital status,status with regards to of a third party, or actions or inactions of City, the time for public assistance,disability,sexual orientation,or age against any performance shall be extended by a period of time lost by employee of the Consultant,any subcontractor of the Consultant, reason of,the delay. Consultant will be entitled to payment for or any applicant for employment. The Consultant shall include a its reasonable additional charges,if any,due to the delay. similar provision in all contracts with subcontractors to this Contract. The Consultant further agrees to comply will all aspects SECTION 13: EXTRA WORK of the Minnesota Human Rights Act,Minn.Stat.363.01,et seq., Title VI of the Civil Rights Act of 1964,and the Americans with 13.1 Extra work, additional compensation for same, and Disabilities Act of 1990. extension of time for completion shall be covered by written amendment to this agreement prior to proceeding with any SECTION 19: CONFLICTS extra work or related expenditures. No salaried officer or employee of the City and no member of the SECTION 14: WITHHOLDING TAXES Board of the City shall have a financial interest,direct or indirect, in this contract. The violation of this provision renders the 14.1 No fmal payment shall be made to the Consultant until Contract void. Any federal regulations and applicable state the Consultant has provided satisfactory evidence to the City statutes shall not be violated. that the Consultant and each of its subcontracts has complied with the provisions of Minn. Stat. 290.92 relating to SECTION 20: ENTIRE AGREEMENT withholding of income taxes upon wages. A certificate by the Commissioner of Revenue shall satisfy this requirement. 18.1 This Agreement contains the entire understanding between the City and Consultant and supersedes any prior written or oral SECTION 15: AUDITS agreements between them respecting the written subject matter. There are no representations, agreements, arrangements or 15.1 The books, records, documents and accounting understandings, oral or written between City and Consultant procedures and practices of the Consultant or other parties relating to the subject matter of this Agreement which are not relevant to this Agreement are subject to examination by the fully expressed herein. City and either the Legislative Auditor or the State Auditor for a period of six (6) years after the effective date of this 18.2 The agreement between Consultant and City may be Contract. modified only by a written amendment executed by both City and Consultant. SECTION 16: PAYMENT TO SUBCONTRACTORS 18.3 This agreement is governed by the laws of the State of 16.1 The Consultant shall pay to any Subcontractor within ten Minnesota. (10)days of the Consultant's receipt of payment from the City for undisputed services provided by the Subcontractor. The Consultant shall pay interest of one and a half percent (1-1/2%)per month or any part of a month to a Subcontractor on any undisputed amount not paid on time to the Subcontractor. The minimum monthly interest penalty payment for an unpaid balance of$100.00 or more is$10.00. For an unpaid balance of less than$100.00,the Consultant shall pay the actual amount due to the Subcontractor. City of Eden Prairie General Conditions Consultant Agreement (� December 2000 ( I Page 4 of4 CITY COUNCIL AGENDA DATE: October 1,2002 SECTION: Consent Calendar DEPARTMENT AREA/DIVISION: ITEM DESCRIPTION:I.C. 02-5564 ITEM NO.: Engineering Division Approve Change Order No. 1 for Charlson— Mary Krause Phase II Improvements Eugene A.Dietz Requested Action Move to: Approve Change Order No. 1 for the Chanson Phase II (Eden Prairie Road from Pioneer Trail to Valley Road) Improvements from Ingram Excavating, Inc. in the amount of$25,611.16. Synopsis This change order is for additional work the contractor needed to perform within Eden Prairie Road adjacent to Grace Church to avoid significant delays in project completion based on utility conflicts as well as additional work due to existing water main being at a depth below anticipated plan elevations. Background Information The change order was necessary to work around existing power, gas and telephone lines within the project area of Eden Prairie Road adjacent to Grace Church. Significant delays in the project completion would have occurred without the authorization to work around these existing utilities until such time as the utilities were relocated. In addition, the change order addresses additional work performed based a watermain connection at Pioneer Trail at which an existing water main was anticipated to be approximately 8' below grade, which was actually 15' below grade. Additional pavement removal, excavation, backfill and patching along Pioneer Trail were required. Attachments Change Order No. 1 for I.C. 02-5564 /QD, September 18, 2002 SRF No. 0003726 CHANGE ORDER NO. 1 CITY OF EDEN PRAIRIE 8080 Mitchell Road Eden Prairie, MN 55344 PROJECT: Charlson Area Improvements — Phase II Eden Prairie Road — Pioneer Trail to Hilltop Road I.C. 02-5564 CONTRACTOR: Ingram Excavating, Inc. 18900 Pioneer Trail Eden Prairie, MN 55347 WHEREAS: The proposed water main connection at Pioneer Trail was anticipated to be approximately eight feet (8') below grade. The existing water main was discovered at approximately 15 feet below grade, which required additional work including pavement removal, traffic control, overdepth excavation to install the wet tap, backfill and patching along Pioneer Trail. WHEREAS: In order to keep the project on schedule, the Contractor was directed to work around existing power, gas and telephone lines. Significant delays in the project completion would have occurred if the Contractor was not giving this authorization. THEREFORE: In accordance with the terms of the Contract, you are hereby authorized and instructed to perform the improvements as follows: /03 CHARLSON AREA IMPROVEMENTS—PHASE II -EDEN PRAIRIE ROAD—PIONEER TRAIL TO HILLTOP ROAD I.C. 02-5564 PAGE 2 CHANGE ORDER No. 1 —SEPTEMBER 18, 2002 • **INCREASE** Item No. Item Description Unit Unit Estimated Amount Price Quantity 2504.601 Overdepth Water Main Connection LUMP SUM $11,019.16 1 $11,019.16 Utility Work-Around LUMP SUM $14,592.00 1 $14,592.00 TOTAL . $25,611.16 CONTRACT SUMMARY: • ORIGINAL CONTRACT AMOUNT: $625,655.00 TOTAL INCREASE CHANGE ORDER No. 1: $ 25,611.16 REVISED CONTRACT AMOUNT $651,266.16 ISSUED BY: SRF CONSULTING GROUP, INC. D TE ACCEPTED: R EXCAVATING, INC. DATE APPROVED: CITY OF EDEN PRAIRIE DATE SRF:Vo13:F:Support:3726:3726ChangeOrderPhaseII 9-18-02_doc �YI CITY COUNCIL AGENDA DATE: October 1,2002 SECTION: Consent Calendar DEPARTMENT AREA/DIVISION: ITEM DESCRIPTION: ITEM NO.: Engineering Division Grading Permit for Parking Lot at SuperValu `-L Randy L. Slick Eugene A.Dietz Requested Action Move to: Authorize issuance of grading permit to SuperValu for expansion of existing parking facilities by 74 stalls. Synopsis SuperValu is requesting City approval for a parking lot expansion of 74 stalls at their facility located at 11840 Valley View Road. Approximately 300 cubic yards of material is to be moved on site. Background Information Engineering staff has reviewed the plans for conformance to our standards for erosion control and drainage. Planning staff has reviewed the proposal for conformance to City Code. The plan is in conformance with City Code and policy related to erosion control. Attachments Grading Plan 103 ? g -q FR i iti Ella i ii i; F 7 r pIWV I- I 1: .---- i i "lag I . E . iii. ,... :11 ..e I ; 72. i'7;;; F I ni z I tl lg. .41.-:, - .-..., -:ill -... :1 .v 5 '.!i a 2;3 t k. 12 a 1.,; I f,'A % II 1 qg . . ...t.-IV i ' i 151:14 kt‘ 111 a IR ia U . f• gt . i*--- i.,...... .1 ,, AIIII t, blui ggg iii ii 1ST! 11 AvIYA ,ti gi , 1 . qr.41 :I 77; 3 ikii.2 ' -.:• , iF, ii-'_ ; 1 r'' r 112 .r. ----H- ' U P I 17 i P1 I 1-1 4 ; 1 v.2 Lii PN,7. igi N'. -§.- ;-A 14 L kr i 9 ., • \ .•., 51 " •(.• :. ,. • • • „ , , , ...„ ... , , •... , ,„ , ."-...N. .„, - .,'" 5-4,-I''• **,,t,, 0 ! E. sc.\ \,. .„s -., / ..,/ ..,, ;s. 4 ,t",•, 4° . 1 ,, ,••-• -::- 1 e'• ' s'•,I5 , . .-...; ,re1,77-1) .:z•t"' .). ." .." /-, R H i Tti ::::\4 ''. 4, I ..:1 . . . ",.; ..., . ., ,- ,•;.,,,, ir ‘, , . 2 . . , -., ‘'.•,-s*,,/ ,-," 0 2 ' / • •., 4'. . . '.:•• -. g ) `‘tr. : .C;4' .. '..\ ' •.....,,, .,,,,::,..:.,.......,.. ..:::::::::z..? :...s. . _:...:46fr: „ • • •,-,,, — ,- .ss, •\..., s —.z.. . . ‘A \ \ eo,.. :' ,--"ii _.--'- „.-''''"'4., .,, ;.... • . :-. .?..... ., :. . \ •,• ,. kl), ..-,... . r . .." / \ \ • • • N \ 16. -N. 0) )' '" ' V //' „,' i X s''. • .. . .: . .;',: (tQS, ''*(0 ''' NP..----- ,,, 4" ofivh.-,,,,,,,, . _......• 0) / ',,-. •,:-.,-. :.:.::::::::.-::z:-,..,,:.: ,t '1 ''''„', ''",,,,l- f 0 : 2. ..: . ..• .......„ I= _.„--- . .. .... gr:..... : z • * R. . . . „ . - • _____ . ._____. ..., _ .. - -- - ;4,4 .2 2 7- -- ---------------- --- P m. ri , n> ?g ...... ...,.... ......... ,... i : I 4 8 4 mars= .! t•••%1 1-11.01 1 4 SUPERVALU OFFICE — .. EFIICEI /M2121:1( PRELIMINARY I Co 11840 VALLEY VEW ROAD NOT FOR ARCHITECTURE.1 Dr..-NEER1771 I . EDEN PRAIRIE, MN. CONSTRUCTION ..1 Ca MI f.....Om me II=MO 1:30.191.49E IA,...10i IV UAL.as9cs 1241 100.9fAnts-95•49 Ie ,33. =_.,599. irr.9•4-5192-'Li 1.9.74 111.-5992 0 n.......m at ay.ems ammo SITE DRAINAGE PLAN . 2 /06 CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar 10/1/02 SERVICE AREA/DIVISION: ITEM DESCRIPTION: ITEM NO.: Police Department Resolution Accepting and Authorizing Execution Chief Jim Clark of the Alternate Enforcement Grant Sgt.Dennis Paulson Requested Action Move to: Adopt the Resolution to accept and authorize execution of the Alternate Enforcement Grant. Synopsis In order to accept the Alternate Enforcement Grant from the Minnesota Department of Public Safety,the City must pass a resolution accepting the grant. Background Information The Police Department applied for the Alternate Enforcement Grant through the Minnesota Department of Public Safety, Alcohol and Gambling Enforcement Division. The grant is for alternate forms of alcohol law enforcement, not traditional underage compliance checks. The grant will be used to pay officers to assist liquor establishments in carding and educating alcohol buyers, checking hotels for underage parties, discouraging illegal transactions outside of liquor establishments and to educate the general populous to be willing and enthusiastic partners in our fight against underage drinking by always presenting their ID's without being asked. The grant is for$1000. Attachments Resolution /C 7' CITY OF EDEN PRAIRIE HENNEPIN COUNTY,NIINNESOTA RESOLUTION NO.2002- A RESOLUTION ACCEPTING THE ALTERNATE ENFORCEMENT GRANT WHEREAS, the Minnesota Department of Public Safety, Alcohol and Gambling Enforcement Division funds programs which will provide for alternate forms of alcohol law enforcement; and WHEREAS,the Police Department has applied for this grant to'fund education and non traditional compliance checks in order to reduce underage drinking. NOW,THEREFORE,BE IT RESOLVED that the City of Eden Prairie accepts the$1,000 Alternate Enforcement Grant and designates the City Manager as the signing authority for a contract between the Minnesota Department of Public Safety and the City of Eden Prairie. ADOPTED this 1st day of October, 2002. Nancy Tyra-Lukens,Mayor ATTEST: SEAL Kathleen A. Porta, City Clerk 1O ` CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar October 1,2002 DEPARTMENT ITEM DESCRIPTION: LC. 98-5467/02-5572 ITEM NO.: AREA/DIVISION: Award Contract for Glenshire Addition Wetland Engineering Division Mitigation and Water Treatment Plant Wetland Mary Krause/Leslie Stovring Mitigation Eugene A.Dietz Requested Action Move to: Award contract for I.C. 98-5467, Glenshire Addition Wetland Mitigation and I.C. 02- 5572, Water Treatment Plant Wetland Mitigation to DMJ Corporation in the amount of $402,987.50. Synopsis Sealed bids were received on Thursday, September 26, 2002. A summary of bid results and recommendation of award are attached. Staff recommends award of the contract to DMJ Corporation for the proposed base project with the addition of Alternatives 2, 3 and 5. The base bid is$388,794.50 and the alternatives are$14,300 for a total of$402,987.50. Background Information Glenshire Outlot A Glenshire Outlot A is under a Conservation Easement with the Minnesota Land Trust since 2000 which allows the City to restore up to approximately 3-1/2 acres of the site to wetland conditions. The completion of the wetland mitigation is seen as culmination of 7 years of work between City staff, State Representative Tom Workman and members of the Glenshire-Edenvale Conservation Group. The Glenshire wetland mitigation project includes 2.8 acres of new wetland and 2.1 acres of upland buffer credit for a total of 4.9 acres of wetland credit. The entire credits will be used for the Columbine Road and Purgatory Creek Recreation Area requirements from the Watershed District and U.S. Corps of Engineers. Water Treatment Plant Preliminary grading and landscaping of the Water Treatment Plant (WTP) stormwater ponding and wetland areas was completed in 1999. This portion of the WTP site was historically wetland but was filled to create the original water plant lagoons. Additional grading and landscaping are required for two reasons, to expand the wetland mitigation area and to correct soil deficiencies including high levels of salt and sodium from historical usage of the site for salt storage. This has resulted in problems such as bald spots with little or no vegetation, hard or compacted soils and erosion channels on the slopes. The wetland mitigation project includes 1.1 acres of new wetland credit, 0.82 acres of upland buffer credit and 0.45 acres of public value credit for stormwater ponding for a total of 2.37 acres of wetland credit. Credits will be used for the Columbine Road and Purgatory Creek Recreation Area requirements from the WCA and U.S. Corps of Engineers (COE) with 0.46 acres of excess new wetland credits and 0.49 acres of excess public value credits under WCA that will be banked for future City projects. Attachments Bid summary and award recommendation loci Engineering•Surveying ;") Landscape Architecture September 26, 2002 >t � City of Eden Prairie 8080 Mitchell Road Eden Prairie, MN 55344 Attn: Leslie Storving Re: Construction Bids for Glenshire Addition Wetland Mitigation and Water Treatment Plant Wetland Mitigation I.C. 99-5467 and 02-5572 Dear Ms. Stowing: Bids were received and opened at 10:00 a.m. on Thursday September 26, 2002, for the above referenced projects. The bids are shown on the attached Summary of Bids. The Engineer's Estimate was $225,647.50 for the Glenshire Addition project and $129,500.00 for the Water Treatment Plant project for a total base estimate of$355,147.50. The low bidder, DMJ Corporation came in 9% above the Engineer's Estimate with a base bid of$388,687.50. Alternates 2, 3 and 5 are recommended to be included with these projects for an additional cost of$14,300.00. Recommendation is made that the City Council award Improvement Contract 99-5467 and 02-5572 to DMJ Corporation for the base bid plus alternates 2, 3 and 5 for $402,987.50. This recommendation considers that the City Council reserves the right to waive minor irregularities and further reserves the right to award the contract in the best interests of the City. Respectfully, HANSEN THORP PELLINEN OLSON, INC. 7510 Market Place Drive L ZLv L I. ' y/�)r _ Eden Prairie,MN 55344 ./ 952-829-0700 Laurie A. Johnson, P.E. 952-829-7806 fax Principal LAJ:ks enclosures l/O - r- ■ • • I It a ' ' ' . k e . SUMMARY OF BIDS City of Eden Prairie I.C. 99-5467 and 02-5572 DESCRIPTION: Glenshire Addition Wetland Mitigation and Water Treatment Plant Wetland Mitigation BIDS OPENED: September 26, 2002 CONSULTING ENGINEER: Hansen Thorp Pellinen Olson Inc. CHECKED BY: Hansen Thorp Pellinen Olson Inc. BIDDER BID SECURITY TOTAL BID DMJ Corporation Yes 99-5467 Glenshire $223,193.75 02-5575 Water Treatment Plant $165,493.75 Add Alternate 1 $12,262.50 Add Alternate 2 $3,500.00 Add Alternate 3 $10,800.00 Add Alternate 4 $20,000.00 Add or Deduct Alternate 5 $0 FM Frattalone Yes 99-5467 Glenshire $239,924.00 02-5575 Water Treatment Plant $153,379.50 Add Alternate 1 $7,875.00 Add Alternate 2 $2,900.00 Add Alternate 3 $10,200.00 Add Alternate 4 $25,000.00 Add or Deduct Alternate 5 $0 Carl Bolander& Sons Co. Yes 99-5467 Glenshire $322,500.60 02-5575 Water Treatment Plant $255,379.90 Add Alternate 1 $8,325.00 Add Alternate 2 $3,000.00 Add Alternate 3 $11,400.00 Add Alternate 4 $12,893.00 Add or Deduct Alternate 5 $291.00 The undersigned recommend award of Contract to: DMJ Corporation as the lowest responsible bidder for this Improvement Contract. . a. OP/ 4 Laurie A. JohnsoP.E. City of Eden Prairie Consulting Engineer IIf CITY COUNCIL AGENDA DATE: 10/01/02 SECTION: Public Hearings SERVICE AREA/DIVISION: ITEM DESCRIPTION: ITEM NO.: Community Development Donald R. Uram Southwest Station ./T Michael D. Franzen Requested Action Move to: • Close the Public Hearing; and • Adopt the Resolution for Guide Plan Change from Regional Commercial to High Density Residential on 8.89 acres; and • Adopt the Resolution for Planned Unit Development Concept Amendment on 15.55 acres; and • Approve 1st Reading of the Ordinance for PUD District Review with waivers on 15.55 acres; and Zoning District Change from Rural to Commercial Regional Service on 6.66 acres, and from Rural to RM-2.5 on 8.89 acres; and • Adopt the Resolution for Preliminary Plat of 20.3 acres into 6 lots; and • Direct Staff to prepare a Developer's Agreement incorporating Staff and Board recommendations and Council conditions. Synopsis The project is for 31,527 square feet of retail and restaurants and 236 multiple-family units. The project has the following elements: • 2 townhouse units • 234 apartment units • A 5,222 SF Culvers restaurant • A 4,725 SF Krispy Kreme • A 6,500 SF Ruby Tuesday restaurant • Retail Buildings A and B— 15,080 SF total. A guide plan change is requested from Commercial Regional to High Density Residential for the proposed residential area. Waivers are requested for building setback, parking setback, density, and building height. Community Planning Board Recommendation The Community Planning Board voted 9-0 to recommend approval of the project to the City Council at the September 9, 2002 meeting subject to revising the plans according staff recommended changes of the September 6, 2002 staff report regarding drainage and access. The i City Council Public Hearing—Southwest Station October 1,2002 plans have been revised according to the recommendations of the Community Planning Board and city staff. Staff Recommendation City staff recommend approval of the project since the proposed use of the property is consistent with the goals and polices of the Comprehensive Plan. The waivers result in a better design. Approval of the project is based on plans dated September 24,2002 and subject to the recommendations of the staff report dated September 6,2002. Background Guide Plan Change A guide plan change from Regional Commercial to High Density Residential is requested for the west 8.89 acres.Reasons to consider the guide plan change are: 1. The guide plan change would be consistent with the Comprehensive Guide Plan goal to support the development of the Southwest Metro Transit Hub land area. 2. The guide plan change would be consistent with the following policies of the Comprehensive Guide Plan. • Support the efforts of Southwest Metro Transit to develop a transit hub on its property at the southwest corner of Highway 5 and Prairie Center Drive in Eden Prairie. • Consider, through the PUD process on a case by case basis, the granting of bonuses and incentives to allow for the higher intensity uses that will be supportive of a transit hub. • Encourage compact and pedestrian friendly mixed-use developments that offer the type of retail and convenience services that will be utilized by both transit customers and destination shoppers. • Consider opportunities for shared parking between transit parking lots that would predominantly be used:during daytime business hours and those land uses (such as entertainment and dining) that could utilize these parking facilities during evening and weekend hours when transit is not running its peak service. Planned Unit Development Waivers Waivers are requested for building setback, parking setback, density, and building height. Reasons to consider the waivers are: 1. To support the development of the Southwest Metro Transit Hub land area. 2. To be consistent with the transit policies of the Comprehensive Guide Plan. 3. The project with waivers results in a design with similar architectural features, colors and materials. 113 City Council Public Hearing—Southwest Station October 1,2002 4. The project with waivers results in a design with additional interior green space to help soften the visual appearance of parking lots and provide internal pedestrian connections. 5. The project with waivers results in design with decorative lights, fencing, and sidewalks. Parking The residential site meets the required parking of two spaces per unit with one enclosed. The plan shows a total of 472 spaces. Each commercial site provides the required parking based on one space per three seats for the proposed restaurants. The total seating for all restaurants is 1,200 seats. The parking requirement is 400 spaces. The plan shows 411 spaces. There are 700 spaces in the parking deck that can also be used after 6:00 PM and on weekends. Traffic Signal The proposed development is expected to create sufficient traffic volumes to warrant a traffic signal installation at the Technology Drive / Southwest Station east access intersection. In addition, the existing traffic signals at the Prairie Center Drive and Technology Drive intersection also must be adjusted to handle the increase in traffic. The new traffic signal and adjustments to existing signals need to be completed prior to the opening of any of the proposed retail buildings. The developer will be responsible for the traffic signal design, installation costs, and signal adjustments. If the developer petitions the City for the improvements, a special assessment agreement will be required. Attachments 1. Resolution for Guide Plan Change 2. Resolution for PUD Concept Amendment 3. Resolution for Preliminary Plat 4. Staff Report dated September 6,2002 5. Community Planning Board Minutes dated September 9,2002 SOUTHWEST STATION CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO.2002- A RESOLUTION AMENDING THE COMPREHENSIVE MUNICIPAL PLAN WHEREAS, the City of Eden Prairie has prepared and adopted the Comprehensive Municipal Plan("Plan"); and WHEREAS, the Plan has been submitted to the Metropolitan Council for review and comment; and WHEREAS, the proposal of Southwest Station by North American Properties of Minnesota is for 31,527 square feet of retail and restaurants and 236 multiple-family units NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Eden Prairie, Minnesota, hereby adopts the amendment of the Plan subject to Metropolitan Council approval as follows: Commercial Regional to High Density Residential on 8.89 acres for Southwest Station, being in Hennepin County, Minnesota, legally described as outlined in Exhibit A, is attached hereto and made a part hereof. ADOPTED by the City Council of the City of Eden Prairie this 1st day of October, 2002. Nancy Tyra-Lukens,Mayor ATTEST: Kathleen A. Porta, City Clerk 115 EDIT A Legal Description Guide Plan Change Southwest Station Outlot A, Southwest Station f/6 SOUTHWEST STATION CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO.2002- A RESOLUTION APPROVING THE PLANNED UNIT DEVELOPMENT CONCEPT OF SOUTHWEST STATION FOR NORTH AMERICAN PROPERTIES OF NIINNESOTA WHEREAS,the City of Eden Prairie has by virtue of City Code provided for the Planned Unit Development(PUD) Concept of certain areas located within the City; and WHEREAS, the Community Planning Board did conduct a public hearing on September 9, 2002 by North American Properties of Minnesota and considered their request for approval of the PUD Concept plan and recommended approval of the request to the City Council; and WHEREAS,the City Council did consider the request on October 1,2002. NOW,THEREFORE,BE IT RESOLVED by the City Council of Eden Prairie,Minnesota, as follows: 1. Southwest Station, being in Hennepin County, Minnesota, legally described as outlined in Exhibit A, is attached hereto and made a part hereof. 2. That the City Council does grant PUD Concept approval as outlined in the plans dated September 24,2002. 3. That the PUD Concept meets the recommendations of the Community Planning Board dated September 9,2002. ADOPTED by the City Council of the City of Eden Prairie this 1st day of October, 2002. • Nancy Tyra-Lukens,Mayor Kathleen A. Porta, City Clerk EXIT A Legal Description PUD Concept-Southwest Station Outlot A and Lot 1,Block 1, Southwest Station 1 IF SOUTHWEST STATION CITY OF EDEN PRAIRIE HENNEPIN COUNTY,M NNESOTA RESOLUTION NO.2002- RESOLUTION APPROVING THE PRELIMINARY PLAT OF SOUTHWEST STATION FOR NORTH AMERICAN PROPERTIES BE IT RESOLVED,by the Eden Prairie City Council as follows: That the preliminary plat of Southwest Station for North American Properties dated September 24, 2002,and consisting of 20.3 acres into 6 lots, a copy of which is on file at the City Hall,is found to be in conformance with the provisions of the Eden Prairie Zoning and Platting ordinances, and amendments thereto, and is herein approved. ADOPTED by the Eden Prairie City Council on the 1st day of October,2002. Nancy Tyra-Lukens,Mayor ATTEST: Kathleen A. Porta, City Clerk Ily STAFF REPORT TO: Community Planning Board FROM: Michael D.Franzen, City Planner DATE: September 6,2002 SUBJECT: Southwest Station APPLICANT: North American Properties OWNER: Southwest Metro LOCATION: Prairie Center Drive and Technology Drive REQUEST: 1. Guide Plan Change from Regional Commercial to High Density Residential on 8.89 acres 2. Planned Unit Development Concept Amendment on 15.55 acres 3. Planned Unit Development District Review with waivers on 15.55 acres 4. Zoning District Change from Rural to Commercial Regional Service on 6.66 acres, and from Rural to RM-2.5 on 8.89 acres 5. Site Plan Review on 15.55 acres 6. Preliminary Plat of 20.3 acres into 6 lots Area Location Map Southwest Station ktilk ------_____ iiiiillikValley View ' • • •t II I IIII, ' . ' i _____________r_______,.. . . , . . —1 State Highw- , ¢. 312 ' 7' Prairie Center Drive ...,- ---.:,. r•v,1,,±1,-,.:,i",-..I-,A y,.:;,i•',,:e!k,7...,,.4."..,•:;,-„,.*,..,.:,,-,,,...,,i.it:--i.,.,':-tv,'.,N*••,4"r_,1„•:,::,-z.01,i,".7i;i.%,1.-.i,,2,4.,.,,:-,V':,,:-4,1.4-.'.4,'t'4.,i.•,v.'4,1„4.A.'•,1.5,...,:J.;,4.1ir'.,.,.;,I'l", ''...''',.i„';-',4 l,l,','.,1t'-'i-,g- t,v',,.,,-,,,4 4',..e.,•.-4.4.,4„,#-"A,-.4:'444N---,,,7:,r:.,„:L.':.y.1,:_,411:'4l 17,.,.e...-k,'4'P,s„t.-:„':.A„F7i.;_1..:,f,.'1r,..,:.A.-11.,,,o.-,-..t-+.1'1;t,.,.%.. #'� c Y- 1x" 5 a �P r ,T .,•,,,,,,.., ....„.„,;,„. ..,..s.. ...-...• • : .-... t.,,,,,,,,..,„• ..,,,,,:„.,,,,,.,,,,,., ...„,„:,,,,, ,,,,,,,,,,m, —.•, ..Iii,„ ,., ...„,,.. . .„ . . . . . 4,, • • . . ..,.. .. . :.... ..• . • Technolog § lye . . • W -r E S No Scale IQ( Staff Report—Southwest Station 2002 September 6,2002 BACKGROUND The site is guided Regional Commercial. Surrounding land is guided Office,Regional Commercial, Industrial, Church, and Public Open Space. A total of 4.75 acres of the site is zoned Commercial Regional Service for the existing transit building,parking deck,and Pickled Parrot. The remaining 15.55 acres is zoned Rural. Surrounding land is zoned Office, Commercial Regional Service, Industrial,Public, and Rural. PUD CONCEPT PLAN The plan has the following elements: • 2 townhouse units • 234 apartment units • A 5,222 SF Culvers restaurant • A 4,725 SF Krispy Kreme • A 6,500 SF Ruby Tuesday restaurant • Retail Buildings A and B— 15,080 SF total. COMPREHENSIVE GUIDE PLAN CHANGE A guide plan change is requested from Commercial Regional to High Density Residential on the west 8.89 acres. Reasons to consider the guide plan change are: 1. The guide plan change would be consistent with the Comprehensive Guide Plan goal to support the development of the Southwest Metro Transit Hub land area. 2. The guide plan change would be consistent with the following policies of the Comprehensive Guide Plan. • Support the efforts of Southwest Metro Transit to develop a transit hub on its property at the southwest corner of Highway 5 and Prairie Center Drive in Eden Prairie. • Consider, through the PUD process on a case by case basis, the granting of bonuses and incentives to allow for the higher intensity uses that will be supportive of a transit hub. • Encourage compact and pedestrian friendly mixed-use developments that offer the type of retail and convenience services that will be utilized by both transit customers and destination shoppers. • Consider opportunities for shared parking between transit parking lots that would predominantly be used during daytime business hours and those land uses (such as entertainment and dining) that could utilize these parking facilities during evening and weekend hours when transit is not running its peak service. Staff Report—Southwest Station 2002 September 6,2002 PLANNED UNIT DEVELOPMENT WAIVERS The project will require the following waivers: Proposed Lot 1—Krispy Kreme • Parking setback from 35 feet to 14 feet along the north property line. • Parking setback from 10 feet to 0 feet from internal lot lines. Proposed Lot 2—Ruby Tuesday • Building setback waiver from 35 feet to 20 feet along Prairie Center Drive. • Parking setback waiver from 10 feet to 0 feet from internal lot lines. Proposed Lot 3—Retail Buildings • Parking setback from 10 feet to 0 feet from internal lot lines. Proposed Lot 4—Culvers • Parking setback from 35 feet to 17.5 feet along Technology Drive. • Parking setback from 10 feet to 0 feet from internal lot lines. Proposed Lot 5—Residential • Building setback waiver from 35 feet to 15 feet for two townhouse units along Technology Drive. • Building setback from 35 feet to 17.5 feet along Highway 5. • Density from 17.4 to 30 units per acre. • Building height from 45 feet to 50 feet • Shoreland building height from 35 feet to 50 feet. Reasons to consider the waivers are: 1. To support the development of the Southwest Metro Transit Hub land area. 2. To be consistent with the transit policies of the Comprehensive Guide Plan. 3. The project with waivers results in a design with similar architecture features, colors and materials. 4. The project with waivers results in a design with additional interior green space to help soften the visual appearance of parking lots and provide internal pedestrian connections. 5. The project with waivers results in design with decorative lights,fencing, and sidewalks. PARKING The residential site meets the required parking of two spaces per unit with one enclosed. The plan shows a total of 472 spaces. 23 Staff Report—Southwest Station 2002 September 6,2002 Each commercial site provides the required parking based on one space per three seats for the proposed restaurants. The total seating for all restaurants is 1,200 seats.The parking requirement is 400 spaces. The plan shows 411 spaces. There are 700 spaces in the parking deck that can also be used after 6:00 PM and on weekends. ARCHITECTURE All buildings meet the exterior material requirement of 75% face brick and glass. The maximum building height for commercial buildings is 40 feet.All commercial buildings are less than 40 feet tall. The maximum height for the residential buildings is 45 feet.The residential buildings are 50 feet tall. DRAINAGE AND STORMWATER TREATMENT Two ponds are proposed for water quality and flood storage for the western portion of the property; one pond adjacent to the TH 5 & 312 corridor and a second north of Technology Drive. Both ponds should be privately owned and maintained. Appropriate private easements and maintenance agreements regarding the ponds will be needed. The ponds should be constructed with a 10:1 bench at the normal water level for vegetation growth and for safety concerns. UTILITIES All interior utilities within the site are to be privately owned and maintained. All utilities must be installed to meet current plumbing and building codes. TRAFFIC SIGNAL The proposed development is expected to create sufficient traffic volumes to warrant a traffic signal installation at the Technology Drive/Southwest Station east access intersection. In addition,the existing traffic signals at the Prairie Center Drive and Technology Drive intersection also must be adjusted to handle the increase in traffic. The new traffic signal and adjustments to existing signals need to be completed prior to the opening of any of the proposed retail buildings. The developer will be responsible for the traffic signal design, installation costs, and signal adjustments. If the developer petitions the City for the improvements, a special assessment agreement will be required. STREETS/ACCESS The following plan revisions will be necessary for better access and safety. 1. The Technology Drive/Southwest Station east access intersection will be required to align with the proposed access location for the Purgatory Creek Recreation Area. As currently shown the access points do not align. Staff Report—Southwest Station 2002 September 6,2002 2. The western residential access should be located a minimum of 150 feet east of the culvert headwall on Technology Drive to allow sufficient room for guardrail installation. 3. The right turn lane to the eastern residential access should be removed since an adequate turn lane design cannot be provided. 4. The western residential access point should have two exit lanes and one entrance lane. 5. Planter locations should be moved to assure that they do not interfere with intersection sight distances. Sight distance information should be provided at each access to Technology Drive to assure that 35-mph sight distances are being provided. 6. The crosswalk at the Technology Drive/Southwest Station east access intersection should align with the existing trail along Technology Drive. , LANDSCAPING The landscaping requirement is 1,352 inches. The plan meets this requirement. SHORELAND CODE The shoreland setback requirement from Purgatory Creek is 150 feet. The building is located 150 feet back from the creek at its closest point. The shore impact zone is 75 feet back from the creek. No grading or parking is located in the shore impact zone. All existing vegetation will remain. The maximum building height in a shoreland area is 35 feet for residential structures. SIGNS There are four types of signs proposed. Planned Unit Development Area Identification Signs Southwest Metro is proposing two monument signs for area identification. One is located at the intersection of Technology Drive and Prairie Center Drive. The other is located in front of Culvers on Technology Drive.The code allows one 80 square foot sign on each frontage, with a maximum height of 20 feet.Both signs meet City Code.The sign at the intersection of Technology Drive and Prairie Center Drive is located in MnDot right of way. The right of way will eventually be turned back to the city. The City would need to vacate right of way so the sign would meet the required 20-foot setback. The other monument sign meets the required 20-foot setback. Monument Signs Culvers and Krispy Kreme have a monument sign. The code allows an 80 square foot sign with a maximum height of 20 feet. Each sign is 8 feet,8 inches tall and 56 square feet. Each sign meets the required 15-foot setback. I Staff Report—Southwest Station 2002 September 6,2002 Commercial Wall Signs The wall signs have not been designed. The wall signs should meet City code. A sign is allowed on each wall as a percentage of the wall area not to exceed 300 square feet. Residential signs The signs have not been designed. The design should be similar should to Southwest Station, Culvers and Krispy Kreme. The City code allows one identification sign per street entrance at a 10-foot setback. The sign can be up to 36 square feet, and 6 feet tall. PRELIMINARY PLAT The existing transit hub and parking ramp need to be platted as a separate lot within the proposed subdivision. The proposed pond in Lot 3 should be private. The drainage and utility easements will need to be vacated by City Council. Drainage and utility easements are indicated over Ponds 1 &2 within proposed Lot 5. These ponds are to be privately owned and maintained. The drainage and utility easements should be removed from the proposed plat. SUMMARY The Community Planning Board should discuss the following questions. 1. Is the proposed use consistent with the goals and policies of the comprehensive plan? 2. Is the proposed use appropriate for the site and compatible with the surrounding area? 3. Do the waivers result in a better plan for the site and the City than if no waivers are granted? Staff believes the proposed use of the property is consistent with the goals and polices of the Comprehensive Plan. The waivers result in a better design. STAFF RECOMMENDATION Recommend approval of the following request: • Comprehensive Guide Plan Change from Neighborhood Commercial to Office on 8.89 acres • Planned Unit Development Concept Amendment on 15.55 acres • Planned Unit Development District Review on 15.55 acres Staff Report—Southwest Station 2002 September 6,2002 • Rezoning from Rural to Commercial Regional Service on 6.66 acres and from Rural to RM 2.5 on 8.89 acres • Site Plan Review on 15.55 acres • Preliminary plat of 20.3 acres into 6 lots This is based on plans dated September 6,2002,the Staff Report dated September 6,2002, and the following conditions: 1. Prior to City Council review,the proponent shall revise the plan as follows. A. The Technology Drive/Southwest Station east access intersection will be required to align with the proposed access location for the Purgatory Creek Recreation Area. As currently shown the access points do not align: B. The western residential access should be located a minimum of 150 feet east of the culvert headwall on Technology Drive to allow sufficient room for guardrail installation. C. The right turn lane to the eastern residential access should be removed since an adequate turn lane design cannot be provided. D. The western residential access point should have two exit lanes and one entrance lane. Planter locations should be moved to assure that they do not interfere with intersection sight distances. Sight distance information should be provided at each access to Technology Drive to assure that 35-mph sight distances are being provided. E. The crosswalk at the Technology Drive/Southwest Station east access intersection should align with the existing trail along Technology Drive. 2. Prior to grading permit issuance,the proponent shall: A. Notify the City and Watershed District 48 hours in advance of grading. B. Install erosion control on the property,as well as tree protection fencing at the grading limits in the wooded areas for trees to be preserved as part of the development. Said fencing shall be field inspected by the City Forester prior to any grading. C. Submit detailed storm water runoff, utility, and erosion control plans for review and approval by the City Engineer and Watershed District. 3. Prior to building permit issuance for the property,the proponent shall: A. Provide a landscape surety equivalent to 150% of the cost of the tree replacement improvements indicated on the approved plan. B. Submit detailed building plans to the Inspections Department and Fire Marshal for their review and approval. C. Pay the Cash Park Fee. D. Submit samples of exterior materials for review and approval. Staff Report—Southwest Station 2002 September 6,2002 4. The following waivers have been granted through the PUD District Review for the property: Proposed Lot 1 —Krispy Kreme • Parking setback from 35 feet to 14 feet along the north property line. • Parking setback waiver from 10 feet to 0 feet from internal lot lines. Proposed Lot 2—Ruby Tuesday • Building setback from 35 feet to 20 feet along Prairie Center Drive. • Parking setback from 10 feet to 0 feet from internal lot lines. Proposed Lot 3 —Retail Buildings • Parking setback from 10 feet to 0 feet from internal lot lines. Proposed Lot 4—Culvers • Parking setback from 35 feet to 17.5 feet along Technology Drive. • Parking setback from 10 feet to 0 feet from internal lot lines. Proposed Lot 5—Residential • Building setback from 35 feet to 15 feet for two townhouse units along Technology Drive. • Building setback from 35 feet to 17.5 feet along Highway 5. • Density from 17.4 to 30 units per acre. • Building height from 45 feet to 50 feet. • Shoreland building height from 35 feet to 50 feet. I Planning Board Minutes September 9,2002 f . , Page 3 • ' '- V. PUBLIC HEARINGS • H _ A. SOUTHWEST STATION by North American Properties of Minnesota.Request ' for Guide Plan Change from Regional Commercial to High Density Residential on 8.89 acres,Planned Unit Development Concept Amendment on 15.55 acres, Planned Unit Development District Review with waivers on 15,55 acres,Zoning District Change from Rural to Commercial Regional Service on 6.66 acres, and from Rural to RM-2.5 on 8.89 acres, Site Plan Review on 15.55 acres, and Preliminary plat of 20.3 acres into 6 lots. Location:North of Technology Drive, south of TH 312 and west of Prairie Center Drive. The public hearing opened at 7:05 p.m. Jay Scott,North American Properties, reviewed the project. This mixed-use development incorporates housing,retail -commercial, and a transit station. The western portion of the property is 236 units of multi-family housing; the center portion is the transit hub. There are a number of restaurants to be added along the eastern portion. The vision for the project was to take advantage of the existing conditions and create amenities for commuters,workers at existing offices, and residents.Anticipated tenants at the site are Krispy Kreme, Culvers, Ruby Tuesdays, and a multi-tenant building with such tenants as Caribou's and Chipoltle. As part of the approval they wish to create a signalized access. A right-in right-out is proposed on the far western portion of the site. The parking garage will be used by transit customers during daytime hours. The proposed residential is 236 units, offering sixteen floor plans; 60 percent will be efficiency,with the remainder 2-bedroom plus. The target resident is a rent-by- choice,work-force customer. The apartments will offer a business center, clubhouse facility,basketball and racquetball courts. There are three stories of parking, creating two stalls per unit. The architecture of the existing transit hub has been incorporated into the development. Restaurants will have specific design elements to ensure compatibility. Nelson inquired about the retail area,whether there was a street behind the Culvers or whether it was only a drive-through. It appears to be a street on the plans. Scott stated both, a drive-through and a pass-through. There are various directions for travelers to drop people off at the transit station. Franzen stated staff recommended approval based on the conditions listed in the staff report. Plan changes are listed on page seven of the staff report. Sodt requested clarification on the conditions in the staff report regarding the residential access 150 feet east of Culvers.He asked why this would be done if it presented a significant obstacle. Planning Board Minutes r September 9,2002 1 Page4 DRAFT I ; Scott stated most of these items in the staff report were small technicaµ{•/l engineering -" issues that were easily accommodated. They will meet with the planning staff to discuss extending a guard rail. It would have a big impact on the curb design. Currently the access is 105 feet; another 45 feet would be difficult. Gray stated the trail will wrap around behind the guard-rail and the space is needed. The driveway opening and curb maybe an issue. Sodt asked about the right-in to the eastern residential and why removing it was recommended. This would allow access only from the west. Gray noted the recommendation means do not construct a right-turn lane. The driveway will not be removed. The purpose of a right-turn lane is for deceleration; if it is made too small,it will not serve this purpose. Brooks inquired about stacking on the drive-through. Jerry Anderson, architect, stated stacking space from the window is approximately 5-6 vehicles and from the order area to the street another 5 vehicles. There will be room for passing and for backing up to park. Foote inquired whether they had discussed a smoking ordinance with any of the restaurants. Scott stated the restaurants were aware of the ordinance. Stoelting stated he did not see a service area for Krispy Kreme or Culvers. Scott noted they both have an independent service area. He showed the location on the elevation. Everything is screened behind walls or parapets. Trash is fully enclosed and fully screened from view. Stoelting asked whether there were gates in the parking garage. Scott stated no;the garage was not secure. Stoelting noted the Shoreland Code was referenced. The staff report states maximum building height is 35 feet for residential and this project is considering 50 feet. Franzen stated there have been 50 feet high projects in Shoreland Areas. The type of colors and existing vegetation are considered;the southern portion full of trees mitigates a portion of the height.At its closest point to the creek, it is 150 feet. This ( 30 J.. -=tip. Planning Board Minutes September 9 2002 eP DRAFT S Page 5 # portion of the creek has no trail planned;there is more urban than rural character to the development. There will be creek plantings. Sodt stated this was isolated from any other type of development and height would not have that much of an impact. Steppat stated he was in favor of the development. He expressed concern about pedestrian traffic. Scott reviewed pedestrian movements. There are connections with trails across the street and park. This is meant to open up and welcome pedestrian movements into the site. Within the site all movements have been identified with defined pedestrian access materials. There are defined pedestrian links from the main intersections and walkways throughout the development and around the pond. He reviewed all of the pedestrian movements in the development. Koenig stated the variance for building height was likely similar to the existing for the parking garage. Scott stated they would likely not be taller than the parking garage. Koenig requested review of the access to Krispy Kreme. Scott stated straight through the parking garage as well as the primary access point for all of the restaurants. Sodt asked about Krispy Kreme's priority goal in development. Scott explained visibility was important as well as location and access. Access keeps customers coming back; this is important for all of the clients. They are comfortable that the access is sufficient. Traffic control measures will be in place in the early opening stages if it is a concern. Seymour inquired about the construction schedule and the area between transit and residential. Scott stated the parking garage was currently under construction and will be complete this fall. The existing bus turnaround facility will stay with the transit authority. There is no immediate construction activity planned for this portion of the site. With the overall phasing they will need to be careful they do not disrupt existing businesses.He reviewed phasing. They will grade and update the area near the Pickled Parrot;when this is complete Pickled Parrot will have a parking area to use.Immediate construction is planned. The general timeline varies,but in 18-24 months residential will be complete.Retail will begin this fall with hopes to have all tenants open in the summer. 131 Planning Board Minutes . September 9,2002 ` Page6 I DRAFT 1 - . Seymour asked about the fill area by Highway 5. Scott stated it is MNDOT right of way;they've applied for a permit to landscape. Most of the property will be turned back to the City. They would like to grade and fill,then manicure the landscape up to Prairie Center Drive. Nelson asked about the 15 foot setback with the townhomes and how far from the street they would be. Franzen stated it was 15 feet from the right of way line and 15-20 feet from the property line to the curb line. Nelson inquired whether CMU block was an acceptable material to use on the residential buildings. She would like its use to be revisited. Franzen stated no more than 25%would be acceptable. Scott noted issues with soil conditions were a concern.The CMU is for structural purposes. It is not all CMU block;there are different design elements. They have brought in metal and stucco. Nelson inquired about the west driveway;the garbage area is near a main entrance— she inquired whether it would be screened. Scott stated trash would be fully enclosed within the building and would be brought out only at time of pickup. Foote asked when the parking ramp would be complete. Scott stated in October or November. Foote expressed concern about the parking,which was minimal. He inquired whether existing parking would be disturbed during building. Scott stated access must be open at all times. Temporary relocation would take place. Nelson stated people are going onto the busses at all times of the day; safety should be a consideration at all times. Scott stated they would provide construction barricades and safety. Koenig noted they had requested several variances; she asked about green space and landscaping. 13 • '•T' s • Planning Board Minutes September 9,2002 Page 7 DRAFT Scott explained green space on the housing side was incorporated; there is a large outdoor courtyard. The buildings were pulled back for the most part. They created additional park area. On the commercial side they were seeking waivers on most of the outlying buildings. They are set back from the road but want setback waivers from the property line to address parking. Landscaping and decorative fencing has been provided. Koenig inquired about the permit for MNDOT. Scott stated it could be utilized in the future for expansion; the permit was submitted by Southwest Metro Transit. Koenig inquired about rental costs. Scott stated there were 16 unit plans and would be priced differently. They would be on the higher end of the rental scale. Exact rates have not been set. Corneille inquired about closing the parking garage during the day; there would be traffic coming in. Scott noted it was designed with adequate parking. There is more parking than what would be needed. Corneille inquired about height of ADC building. Franzen stated 60 feet for the building and 65 for the parking garage. MOTION by Stoelting, second by Foote to close the public hearing. Motion carried, 9-0. The public hearing closed at 8:17 p.m. Sodt expressed further concern with the location of the driveway. Franzen noted it was a staff recommendation because of concern with safety and site distance. Staff will work with the developer and forward its findings to Council. MOTION by Stoelting, second by Foote to approve Southwest Station by North American Properties of Minnesota Request for Guide Plan Change from Regional Commercial to High Density Residential on 8.89 acres,Planned Unit Development Concept Amendment on 15.55 acres,Planned Unit Development District Review with waivers on 15,55 acres,Zoning District Change from Rural to Commercial Regional Service on 6.66 acres, and from Rural to RM-2.5 on 8.89 acres, Site Plan 1 "d Planning Board Minutes I s' _;;�_ I September 9,2002 1 DRAFT I Page 8 I I I. • J Review on 15.55 acres, and preliminary plat of 20.3 acres into 6 lots. Motion carried,9-0. Corneille thanked the developer and staff for their work on this project. • 1 3LI CITY COUNCIL AGENDA DATE: SECTION: Payment of Claims Oct 1,2002 SERVICE AREA/DIVISION: ITEM DESCRIPTION: ITEM NO.: Community Development and Payment of Claims , Financial Services/Don Uram Requested Action Move to: Approve the Payment of Claims as submitted(roll call vote) Synopsis Checks 113479-113896 Wire Transfers 1607-1614 and 1905 Background Information Attachments 135 City of Eden Prairie Council Check Summary 10/1/2002 Division Amount General 242,634 101 Legislative 73 104 Contingency 2,896 110 City Clerk 1,565 111 Customer Service 12,304 112 Human Resources 11,747 113 Communication Services 6,161 114 Benefits&Training 3,062 115 Risk Management 3,766 116 Facilities 16,417 117 City Center 2,275 130 Assessing 184 133 Community Development 394 135 Information Technology 10,307 136 Wireless Communication 3,330 150 Park Administration 4,172 151 Park Maintenance 29,031 153 Athletic Programs 2,079 154 Community Center 45,673 156 Youth Programs 4,727 157 Special Events 4,005 158 Senior Center 1,107 159 Recreation Administration 75 160 Adaptive Recreation 274 161 Oak Point Pool 299 162 Arts 988 163 Park Facilities 573 180 Police 11,457 181 Telecommunicators 43 183 Civil Defense 701 184 Fire 34,391 185 Animal Control 1,519 186 Inspections 403 200 Engineering 850 201 Street Maintenance 376,437 202 Street Lighting 53,058 203 Fleet Services 30,619 303 Cemetery Operation 7 308 E-911 1,464 314 Liquor Compliance 1 402 2nd Sheet of Ice 1992A 1,438 403 City Center Debt 2,128 416 Certificate Debt Fund 12,610 • 502 Park Development 716 506 Improvment Bonds 1996 9,863 507 Construction Fund 5,150 509 CIP Fund 74,903 511 Construction Fund 77,302 601 Prairie Village Liquor 71,259 602 Den Road Liquor 153,286 603 Prairie View Liquor 87,850 701 Water Fund 107,613 702 Sewer Fund 7,429 703 Storm Drainage Fund 7,569 803 Escrow Fund 8,973 806 SAC Agency Fund 345,800 Report Totals 1,894,954 13,6 City of Eden Prairie Council Check Register 10/1/2002 Check# Amount Vendor Account Description Business Unit 1607 115,575 WELLS FARGO MINNESOTA N A Federal Taxes Withheld General Fund 1608 21,705 MINNESOTA DEPT OF REVENUE State Taxes Withheld General Fund 1609 7,859 ICMA RETIREMENT TRUST-457 Deferred Compensation General Fund 1610 15,360 ORCHARD TRUST CO AS TRUSTEE/CU Deferred Compensation General Fund 1611 93 WELLS FARGO MINNESOTA N A Employers SS&Medicare General Fund 1612 324 MINNESOTA DEPT OF REVENUE Motor Fuels Fleet Services 1613 73,622 MINNESOTA DEPT OF REVENUE Sales Tax Payable Den Road Liquor Store 1614 63,130 PUBLIC EMPLOYEES RETIREMENT Employers PERA General Fund 1905 12,610 ANCHOR BANK Interest $890,000 G.O.Cert.of Indebt 113479 2,012 ARCH PAGING Pager&Cell Phone Wireless Communication 113480 105 AT&T Pager&Cell Phone Police 113481 70 COMMISSIONER OF TRANSPORTATION Operating Supplies Engineering 113482 230 D'AMICO AND SONS Miscellaneous General Facilities 113483 32 DZIMIAN,CYNTHIA Right of Way&Easement Improvement Projects 1996 113484 404 EDHLUND,ERIC Travel Expense In Service Training 113485 400 FAHEY,LARRY Other Contracted Services Sunbonnet Days 113486 136 FASHION LABEL CO Operating Supplies Summer Theatre 113487 175 GASCH,ROBERT Other Contracted Services Sunbonnet Days 113489 1,160 GENUINE PARTS COMPANY Equipment Parts Fleet Services 113490 431 GINA MARIAS INC Operating Supplies Fire 113491 1,252 GRAPHIK DIMENSIONS LTD Video&Photo Supplies Fire • 113492 79 GREG LARSON SPORTS Deposits Escrow 113493 18,660 HABITAT FOR TECHNOLOGY Software Capital Impr./Maint.Fund 113494 200 HAMILTON,TYLER Youth Resident Community Center Admin 113495 6,650 HENNEPIN COUNTY Deposits Escrow Fund 113496 219 HOLIDAY INN ALEXANDRIA Travel Expense Fire 113497 750 JENSEN,PAT Other Contracted Services Sunbonnet Days 113498 27 KADLEC,EVELYN Program Fee Senior Center Program 113499 100 KALKES,JAYNA Miscellaneous General Facilities 113500 60 LEAGUE OF MINNESOTA CITIES Dues&Subscriptions Water Utility-General 113501 200 LEEDS,JACK Program Fee Adult Program 113502 105 LEMPESIS,BILL Mileage&Parking Prairie View Liquor Store 113503 25 M SHANKEN COMMUNICATIONS INC Misc Non-Taxable Prairie View Liquor Store 113504 274 MAROTTA,VIC Instructor Service Summer Skill Development 113505 2,295 METRO SALES INCORPORATED* Other Rentals General 113506 270 MINNESOTA DEPARTMENT OF TRANSP Operating Supplies Engineering 113507 95 MN SOCIETY OF ARBORICULTURE Conference Expense In Service Training 113508 128 NEXTEL COMMUNICATIONS Pager&Cell Phone Wireless Communication 113509 285 OTTERTUNITY INC. Other Contracted Services Sunbonnet Days 113510 300 PETTY CASH-TRIA MANN Operating Supplies Sunbonnet Days 113511 61 QUICKSILVER EXPRESS COURIER Postage General 113512 944 QWEST Telephone Flying Cloud Fields 113513 55 RACLET,DELPHINE Deposits Escrow 113514 110 RICHARDS,JEFF Office Supplies Fire 113515 1,374 SCHMITZ,THOMAS Travel Expense Fire 113516 248 SCIENCE MUSEUM OF MINNESOTA Travel Expense In Service Training 113517 4,078 SKYHAWKS SPORTS ACADEMY Other Contracted Services Camps 113518 1,544 SOUTHWEST SUBURBAN PUBLISHING- Legal Notices Publishing City Clerk 113519 71 STATE OF MINNESOTA Operating Supplies Fleet Services 113520 99 UNIVERSITY OF ST.THOMAS Conference Expense In Service Training 113521 87 WEEDMAN,NICOLE Mileage&Parking Youth Programs Administration 113522 757 WEST GROUP Dues&Subscriptions In Service Training 113523 300 WILD GOOSE CHASE CLOGGERS Other Contracted Services Sunbonnet Days 113524 11 WILLIAMS,ROXANNE Lessons&Classes Oak Point Lessons 113525 94 ACE ICE COMPANY Misc Non-Taxable Prairie View Liquor Store 113526 1,250 ALL SAINTS BRANDS DISTRIBUTING Beer Prairie Village Liquor Store 113527 108 AMERIPRIDE LINEN&APPAREL SER Repair&Maint.Supplies Prairie Village Liquor Store 113528 353 ARCTIC GLACIER INC Misc Non-Taxable Den Road Liquor Store 113529 1,993 BELLBOY CORPORATION Liquor Den Road Liquor Store 113530 7,040 DAY DISTRIBUTING Beer Den Road Liquor Store 113531 2,013 EAGLE WINE COMPANY Wine Imported Prairie Village Liquor Store 113532 15,952 EAST SIDE BEVERAGE COMPANY Beer Den Road Liquor Store 113533 269 GRAND PERE WINES INC Wine Imported Den Road Liquor Store 113534 587 GRAPE BEGINNINGS Wine Domestic Den Road Liquor Store 113535 9,350 GRIGGS COOPER&CO Liquor Prairie Village Liquor Store 113537 17,695 JOHNSON BROTHERS LIQUOR CO Liquor Den Road Liquor Store 137 City of Eden Prairie Council Check Register 10/1/2002 Check# Amount Vendor Account Description Business Unit 113538 2,037 LAKE REGION VENDING Tobacco Products Den Road Liquor Store 113539 6,161 MARK VII Beer Den Road Liquor Store 113540 584 MIDWEST COCA COLA BOTTLING COM Misc Taxable Prairie View Liquor Store 113541 123 NEW FRANCE WINE COMPANY Wine Domestic Den Road Liquor Store 113542 5,296 PAUSTIS&SONS COMPANY Wine Domestic Den Road Liquor Store 113543 390 PEPSI COLA COMPANY Merchandise for Resale Concessions 113544 6,854 PHILLIPS WINE AND SPIRITS INC Wine Domestic Den Road Liquor Store 113545 463 PINNACLE DISTRIBUTING Operating Supplies Den Road Liquor Store 113546 2,904 PRIOR WINE COMPANY Wine Domestic Den Road Liquor Store 113547 9,034 QUALITY WINE&SPIRITS CO Wine Domestic Den Road Liquor Store 113548 14,546 THORPE DISTRIBUTING Beer Den Road Liquor Store 113549 1,313 WINE COMPANY,THE Wine Imported Den Road Liquor Store 113550 1,712 WORLD CLASS WINES INC Wine Domestic Den Road Liquor Store 113551 64 CARTWRIGHT,HOLLY Operating Supplies Sunbonnet Days 113552 1,467 CENTRAIRE INC Equipment Repair&Maint Prairie View Liquor Store 113553 23 CULLIGAN-METRO Operating Supplies Outdoor Center 113554 113 EDHLUND,ERIC Travel Expense In Service Training 113555 201 FEDEX Postage General 113556 160 HENNEPIN COUNTY PUBLIC RECORDS Other Contracted Services Engineering 113557 70 LEAGUE OF MINNESOTA CITIES Conference Expense In Service Training 113558 70 MANN,TRIA Travel Expense In Service Training 113559 177 MERLINS ACE HARDWARE Operating Supplies Maintenance 113560 390 MN FALL MAINTENANCE EXPO Conference Expense In Service Training 113561 96 PETERS,DANIEL AR Utility Water Enterprise Fund 113562 3,000 POSTAGE BY PHONE RESERVE ACCOU Postage General 113563 147 PRAIRIE LAWN AND GARDEN Operating Supplies Street Maintenance 113564 100 QUICKSTEPS Other Contracted Services Sunbonnet Days 113565 100 ST.CROIX BASEBALL CLUB Other Contracted Services Sunbonnet Days 113566 43 ABRAMSON,MINDY Program Fee Fall Skill Development 113567 17 AMERICAN EXPRESS PUBLISHING Misc Non-Taxable Prairie View Liquor Store 113568 26 ANDERSON,MICHELLE Lessons&Classes Ice Arena 113569 750 ASSOCIATION OF TRAINING OFFICE Tuition Reimbursement/School Police 113570 27 BACHMANS CREDIT DEPT Chemicals Park Maintenance 113571 1,050 BLOOMINGTON,CITY OF Kennel Services Animal Control 113572 88 BUSINESS JOURNAL,THE Operating Supplies Assessing 113573 248 CLAREYS INC Safety Supplies Water Utility-General 113574 44 DOYLE,SHANNON Lessons&Classes Pool Lessons 113575 2,953 HENNEPIN CNTY TREAS-GENERAL Board of Prisoner Police 113576 929 HENNEPIN COUNTY SHERIFF'S OFFI Board of Prisoner Police 113577 150 HOAG,JODI Employee Award Human Resources 113578 120 KELLY,SANDRA Clothing&Uniforms Police 113579 56 MINNCOMM PAGING Pager&Cell Phone Sewer System Maintenance 113580 1,473 MINNEGASCO Gas Water Treatment Plant 113581 4,084 NATIONWIDE ADVERTISING SERVICE Employment Advertising Human Resources 113582 177 PETTY CASH-POLICE DEPT Travel Expense Police 113583 350 POLICE INSTITUTE,THE Tuition Reimbursement/School Police 113584 1,764 Qwest COMMUNICATIONS Pager&Cell Phone Police 113585 270 REYNOLDS,ROB Travel Expense Police 113586 85 SCADDEN,JENNA Clothing&Uniforms Police 113587 25 SMITH,AMY Licenses&Taxes Police 113588 211 SOUTHWEST SUBURBAN PUBLISHING- Employment Advertising Human Resources 113589 44 STAR TRIBUNE Misc Non-Taxable Den Road Liquor Store 113590 38 SWART,JUNE MCQUARRIE Program Fee Summer Skill Development 113591 49 TE,CI-IAREY Lessons&Classes Oak Point Lessons 113592 30 TRANS UNION CORPORATION Other Contracted Services Police 113593 3,565 US BANK TRUST NATIONAL ASSN Paying Agent City Center Debt Fund 113594 43 VEATCH,LAURA Lessons&Classes Fitness Classes 113595 44 WANG,JEAN Lessons&Classes Oak Point Lessons 113596 248 WASTE MANAGEMENT-SAVAGE MN Waste Disposal Prairie Village Liquor Store 113597 52 WERDAL,PAM Program Fee Fall Skill Development 113598 9,634 WORK CONNECTION-BPARK Other Contracted Services Park Maintenance 113599 161 WYFFELS,BILL Clothing&Uniforms Police 113600 1,311 US POSTMASTER-HOPKINS Postage Water Accounting 113601 110 ACE ICE COMPANY Misc Non-Taxable Prairie View Liquor Store 113602 695 ALL SAINTS BRANDS DISTRIBUTING Beer Den Road Liquor Store 113603 102 AMERIPRIDE LINEN&APPAREL SER Repair&Maim Supplies Prairie View Liquor Store ' 35 City of Eden Prairie Council Check Register 10/1/2002 Check# Amount Vendor Account Description Business Unit 113604 324 ARCTIC GLACIER INC Misc Non-Taxable Prairie Village liquor Store 113605 985 BELLBOY CORPORATION Liquor Den Road Liquor Store 113606 6,077 DAY DISTRIBUTING Beer Prairie View Liquor Store 113607 3,688 EAGLE WINE COMPANY Wine Imported Den Road Liquor Store 113608 9,688 EAST SIDE BEVERAGE COMPANY Beer Den Road Liquor Store 113609 320 EXTREME BEVERAGE Misc Taxable Prairie View Liquor Store 113610 203 GETTMAN COMPANY Misc Taxable Prairie View Liquor Store 113611 161 GRAND PERE WINES INC Wine Imported Den Road Liquor Store 113612 944 GRAPE BEGINNINGS Wine Domestic Den Road Liquor Store 113613 10,503 GRIGGS COOPER&CO Liquor Prairie View Liquor Store 113615 18,844 JOHNSON BROTHERS LIQUOR CO Liquor Den Road Liquor Store 113616 1,752 LAKE REGION VENDING Tobacco Products Den Road Liquor Store 113617 20,525 MARK VII Beer Prairie View Liquor Store 113618 231 MIDWEST COCA COLA BOTTLING COM Misc Taxable Den Road Liquor Store 113619 1,756 PAUSTIS&SONS COMPANY Wine Imported Den Road Liquor Store 113620 235 PEPSI COLA COMPANY Misc Taxable Den Road Liquor Store 113621 8,095 PHILLIPS WINE AND SPIRITS INC Liquor Den Road Liquor Store 113622 884 PINNACLE DISTRIBUTING Operating Supplies Den Road Liquor Store 113623 1,749 PRIOR WINE COMPANY Wine Domestic Den Road Liquor Store 113624 7,811 QUALITY WINE&SPIRITS CO Wine Domestic Den Road Liquor Store 113625 32,504 THORPE DISTRIBUTING Beer Den Road Liquor Store 113626 361 TRI COUNTY BEVERAGE&SUPPLY Beer Den Road Liquor Store 113627 190 WINE MERCHANTS INC Wine Domestic Den Road Liquor Store 113628 1,351 WORLD CLASS WINES INC Wine Domestic Prairie View Liquor Store 113629 24 ALANGO,DORIS Program Fee Senior Center Program 113630 45 BOARD OF WATER&SOIL RESOURCE Conference Expense In Service Training 113631. 100 CARDARELLE,DAWN Other Contracted Services Adaptive Recreation 113632 62 CARTWRIGHT,HOLLY Mileage&Parking Special Events Administration 113633 32 CRAIN,BETTE Program Fee Senior Center Program 113634 44 ELWELL,BRAD J. Deposits Escrow 113635 3,078 GREEN ACRES SPRINKLER COMPANY Improvement Contracts Capital Impr./Maint.Fund 113636 24 HORSTMAN,SHIRLEY Program Fee Senior Center Program 113637 36 KRESS,CARLA Travel Expense In Service Training 113638 11 LEAGUE MN CITIES INS TRUST Insurance Risk Management 113639 60 LMHRC Conference Expense City Council 113640 500 MACALESTER COLLEGE Deposits Escrow Fund 113641 369 MARKS CERTICARE AMOCO Other Contracted Services Guide Plan 113642 265 MINN NCPERS GROUP LIFE INSURAN Life Insurance Employees General Fund 113643 1,156 MINNESOTA VALLEY ELECTRIC COOP Electric Street Lighting 113644 1,123 MN TECHNOLOGY HIGH SCHOOL Deposits Escrow 113645 24 NIEMI,RUTH Program Fee Senior Center Program 113646 259 PETTY CASH Petty Cash&Change Funds General Fund 113647 24 POMMER,VIVIAN Program Fee Senior Center Program 113648 2,700 QWEST Telephone Sewer Utility-General 113649 27 RICHFIELD,CITY OF Operating Supplies Fleet Services 113650 372 SPIKE NASHBAR Recreation Supplies Volleyball 113651 95 SPORTSIGN Other Contracted Services Adaptive Recreation 113652 99 SUPER AMERICA Motor Fuels Fleet Services 113653 500 UNIVERSITY OF WISCONSIN STOUT Deposits Escrow Fund 113654 5,150 XCEL ENERGY Other Contracted Services Charlson Area Construction 113655 1,560 INTERNATIONAL UNION OF OPERATI Union Dues Withheld General Fund 113656 2,094 MINN CHILD SUPPORT PAYMENT CTR Garnishment Withheld General Fund 113657 190 AMERICAN PAYROLL ASSN Dues&Subscriptions In Service Training 113658 101 AT&T Pager&Cell Phone Police 113659 32 BLOMQUIST,ELAINE Program Fee Adult Program 113660 14 BOWLES,RICHARD Program Fee Senior Center Program 113661 63 BRUENING,CHARLOTTE Program Fee Adult Program 113662 15 COPPIN PLUMBING Cash Over/Short General Fund 113663 29 CULLIGAN-METRO Operating Supplies Fire 113664 110 GOVERNMENT FINANCE OFFICERS AS Dues&Subscriptions In Service Training 113665 1,237 GRANT,ROBERT R. Video&Photo Supplies Fire 113666 32 HOLLY,LYN Program Fee Adult Program 113667 40 IKI Instructor Service Senior Center Program 113668 32 JOHNSON,LINDA Program Fee Adult Program 113669 5,808 KMC TELECOM HOLDINGS INC. Telephone Telephone 113670 342,342 METROPOLITAN COUNCIL Due to Other Governments SAC Agency Fund 139 City of Eden Prairie Council Check Register 10/1/2002 Check# Amount Vendor Account Description Business Unit 113671 13,184 MINNESOTA STATE TREASURER Building Surcharge General Fund 113672 360 NRPA Conference Expense In Service Training 113673 3,755 PARK NICOLLET CLINIC • Other Contracted Services Risk Management 113674 7,711 RELIANT ENERGY RETAIL INC. Gas Maintenance 113675 32 ROWELL,CAROLE Program Fee Adult Program 113676 75 SPORTSIGN Other Contracted Services Therapeutic Recreation 113677 75 STEWART-HESTER,RENEE Other Contracted Services Recreation Administration 113678 189 ZUBROD,SCOTT Licenses&Taxes Fleet Services 113679 5 ANDERSON,MICHELLE Program Fee Outdoor Center 113680 532 BARTON SAND&GRAVEL CO Gravel Street Maintenance 113681 25 BCA/TRAINING&DEVELOPMENT Tuition Reimbursement/School Police 113682 160 BLR INC Training Supplies Water Utility-General 113683 80 BOLD,PAULINE Wages No Benefits Sunbonnet Days 113684 40 BRAGG,ANNALISA Instructor Service Outdoor Center 113685 20 DAUMANN,LAURA Program Fee Senior Center Program 113686 18 DISH NETWORK Cable TV Ice Arena 113687 344 ESCHELON TELECOM INC Equipment Repair&Maint Telephone 113688 1,019 G&K SERVICES-MPLS INDUSTRIAL Cleaning Supplies Water Treatment Plant 113689 1,392 GOPHER STATE ONE-CALL INC Other Contracted Services Sewer System Maintenance 113690 297 HUMAN SERVICES-EMSOCS Other Contracted Services Park Maintenance 113691 85 INN,THE Travel Expense Police 113692 100 LEIZINGER,A.SUZETTE Instructor Service Outdoor Center 113693 360 MEDICINE LAKE TOURS Special Event Fees Adult Program 113694 100 OTTERNESS,RON Instructor Service Outdoor Center 113695 1,464 QWEST Telephone E-911 Program 113696 296 SCHONSTEDT INSTRUMENT COMPANY Equipment Repair&Maint Water System Maintenance 113697 393 SOUTHWEST SUBURBAN PUBLISHING- Advertising Taste on the Prairie 113698 40 TELEPHONE ANSWERING CENTER INC Other Contracted Services Water Treatment Plant 113699 101 TIMBERWALL LANDSCAPING INC Building Materials Richard T.Anderson Cons.Area 113700 148 TRANS ALARM INC Building Repair&Maint. Public Works/Parks 113701 17 UNITED PARCEL SERVICE Postage Water Utility-General 113702 550 VERIZON WIRELESS BELLEVUE Pager&Cell Phone Police 113703 135,758 XCEL ENERGY Electric Street Lighting 113704 808 A P LAWN INC Other Contracted Services Fire Station#1 113705 213 A TO Z RENTAL CENTER Other Rentals Street Maintenance 113706 790 ABSOLUTE RAIN INC. Improvements to Land Capital Impr./Maint.Fund 113707 760 AIR POWER EQUIPMENT CORPORATIO Equipment Repair&Maint Fire 113708 1,272 AIR-HYDRAULIC SYSTEMS INC. Equipment Parts Water Treatment Plant 113709 115 ALLIED VAUGHN Video&Photo Supplies Summer Safety Camp 113710 80 ALTERNATIVE BUSINESS FURNITURE Capital Under$2,000 Furniture 113711 78 AMERICAN EXCELSIOR COMPANY Operating Supplies Park Maintenance 113712 985 AMERICAN PRESSURE INC Equipment Repair&Maint Water Utility-General 113713 819 ANCHOR PAPER COMPANY Office Supplies General 113714 5,836 ANCHOR PRINTING COMPANY Printing Communication Services 113715 522 ANOKA COUNTY SHERIFF'S OFFICE Other Rentals Police 113716 133 APPARENTLY GRAPHIC LTD. Operating Supplies Fire 113717 25 AQUA ENGINEERING INC Operating Supplies Park Maintenance 113718 188 AUTOMATED ENTRANCE PRODUCTS IN Building Repair&Maint. Den Road Liquor Store 113719 246 BALDWIN SUPPLY COMPANY Equipment Parts Water Treatment Plant 113720 283 BARTON SAND&GRAVEL CO Gravel Street Maintenance 113721 191 BATTERY STORE INC,THE Operating Supplies Water Treatment Plant 113722 1,565 BAUER BUILT TIRE AND BATTERY Tires Fleet Services 113723 46 BECKER ARENA PRODUCTS INC Repair&Maint.Supplies Ice Arena 113724 2,437 BENIEK PROPERTY SERVICES INC. Other Contracted Services Fire Station#2 113726 6,605 BIFFS INC Waste Disposal Park Maintenance 113727 2,919 BLACK&VEATCH Other Contracted Services Water Treatment Plant 113728 471 BOYER FORD TRUCKS Equipment Parts Fleet Services 113729 395 BOYER TRUCKS SO,ST.PAUL Equipment Parts Fleet Services 113730 1,697 BRAUN INTERTEC CORPORATION Other Contracted Services Environmental Education 113731 482 CAPITOL COMMUNICATIONS Repair&Maint.Supplies Fire 113732 255 CAWLEY COMPANY,THE Printing Communication Services 113733 3,964 CEMSTONE Repair&Maint Supplies Storm Drainage 113734 923 CENTRAIRE INC Equipment Repair&Maint Den Road Liquor Store 113735 850 CHAD NESTOR&ASSOCIATES Other Contracted Services Communication Services 113736 417 COLLISYS Other Contracted Services Street Lighting 113737 277 COLOR CENTER,THE Repair&Maint.Supplies Water Treatment Plant 1 11Q City of Eden Prairie Council Check Register 10/1/2002 Check# Amount Vendor Account Description Business Unit 113738 130 COMARK GOVT&EDUCATION SALES Software Environmental Education 113739 585 CONNEY SAFETY PRODUCTS Operating Supplies Water Utility-General 113740 41 COPY EQUIPMENT INC Operating Supplies Traffic Signals 113741 962 CORPORATE EXPRESS Office Supplies General 113742 13 CROWN MARKING INC Miscellaneous City Council 113743 250 CUB FOODS EDEN PRAIRIE Operating Supplies Fire 113744 11,796 CUTLER-MAGNER COMPANY Chemicals Water Treatment Plant 113745 983 CWH RESEARCH INC. Employment Support Test Human Resources 113746 966 DECORATIVE DESIGNS INC Other Contracted Services City Center Operations 113747 310 DELEGARD TOOL CO Small Tools Fleet Services 113748 10,224 DELL MARKETING L.P. Computers Information Technology 113749 447 DIRECT SAFETY CO Protective Clothing Water Treatment Plant 113750 900 DISCOUNT AUDIO INC Operating Supplies Police 113751 13,264 DISPLAY ARTS Building Repair&Maint. Water Treatment Plant • 113752 800 •DIXIE CARBONIC INC Chemicals Water Treatment Plant 113753 376 DNR SCREEN PRINTING INC Awards Softball 113754 263 DRISKILLS NEW MARKET Operating Supplies Fire 113755 439 DYNA SYSTEMS Repair&Maint.Supplies Water Treatment Plant 113756 403 EARL F ANDERSEN INC Signs Traffic Signs 113757 5,455 EF JOHNSON Repair&Maint.Supplies Fire 113758 135 ELVIN SAFETY SUPPLY INC Protective Clothing Water Treatment Plant 113759 2,883 EMERGENCY APPARATUS MAINTENANC Equipment Repair&Maint Fire 113760 2,896 ENVIRONMENTAL RESOURCE GROUP Other Contracted Services Reserve 113761 1,735 EXCEL LANDSCAPING INC Other Contracted Services Park Maintenance 113762 684 FACILITY SYSTEMS INC Capital Under$2,000 Furniture 113763 764 FARMINGTON TRUCK CENTER Equipment Repair&Maint Fleet Services 113764 126 FEDERAL SIGNAL CORPORATION Equipment Repair&Maint Fleet Services 113765 202 FERRELLGAS Motor Fuels Ice Arena 113766 68 FIKES HYGIENE SERVICES Operating Supplies Prairie View Liquor Store 113767 854 • FIRE INSTRUCTORS ASSN OF MN Tuition Reimbursement/School Fire 113768 65 FISHER SCIENTIFIC Operating Supplies Water Treatment Plant 113769 1,356 FISHER-ROSEMOUNT SERVICE AND S Equipment Parts Water Treatment Plant 113770 525 FORDAHL,TAMARA Other Contracted Services Volleyball 113771 79 FORESTRY SUPPLIERS INC. Operating Supplies Tree Disease 113772 190 FORKLIFTS OF MINNESOTA INC Equipment Repair&Maint Water Treatment Plant 113773 127 FRANKLIN COVEY CO. Office Supplies Police 113774 113 G&K SERVICES-MPLS INDUSTRIAL Other Rentals Park Maintenance 113775 297 GENERAL MUSIC INC Repair&Maint.Supplies Staring Lake Concert 113776 49 GENERAL SAFETY EQUIPMENT COMPA Repair&Maint.Supplies Fire 113777 18,620 GME CONSULTANTS INC Design&Engineering Construction Fund 113778 50 GOVERNMENT FINANCE OFFICERS AS Dues&Subscriptions In Service Training 113779 23,100 GRAUS CONTRACTING INC Building Capital Impr./Maint.Fund 113780 474 GRAYBOW COMMUNICATIONS GROUP Other Rentals Arts Initiative 113781 326 GREATAMERICA LEASING CORP. Other Rentals General 113782 11,340 HABITAT FOR TECHNOLOGY Other Contracted Services Capital Impr./Maint.Fund 113783 758 HACH COMPANY Operating Supplies Water Treatment Plant 113784 6,974 HANSEN THORP PELLINEN OLSON Design&Engineering Construction Fund 113785 9,925 HARTLAND FUEL PRODUCTS LLC Motor Fuels Fleet Services 113786 8,241 HAWKINS WATER TREATMENT GROUP Chemicals Water Treatment Plant 113787 25 HENNEPIN COUNTY TREASURER Operating Supplies Community Development 113788 1,793 HENNEPIN COUNTY TREASURER Equipment Repair&Maint Traffic Signals 113789 156 HENNEPIN TECHNICAL COLLEGE Tuition Reimbursement/School Fire 113790 800 HINTZ,JAMIE Building Repair&Maint. City Center Operations 113791 210 HIRSHFIELD'S Operating Supplies Park Maintenance 113792 33 HYDROLOGIC Repair&Maint.Supplies Park Maintenance 113793 1,495 ICERINK SUPPLY CO Equipment Repair&Maint Ice Arena 113794 56 ICI DULUX PAINT CTRS Repair&Maint.Supplies Water Treatment Plant 113795 209 IDEXX DISTRIBUTION CORP Operating Supplies Water Treatment Plant 113796 90 IND SCHOOL DIST 272 Building Rental Art&Music 113797 3,000 INSPEC INC. Other Contracted Services Capital Impr./Maint.Fund 113798 3,974 ITTRIUM Other Contracted Services Capital Impr./Maint.Fund 113799 1,013 J H(ARSON ELECTRICAL COMPANY Repair&Maint.Supplies Miller Park 113800 2,246 JANEX INC Cleaning Supplies General Facilities 113801 14,555 JEFFERSON FIRE&SAFETY INC Other Assets Fire 113802 501 JOHN HENRY FOSTER MINNESOTA IN Other Contracted Services Water Treatment Plant 113803 21 KINKO'S Deposits Escrow illI City of Eden Prairie Council Check Register 10/1/2002 Check# Amount Vendor Account Description Business Unit 113804 7,477 KOBER EXCAVATING Improvement Contracts Improvement Projects 1996 113805 64 KONTRON MOBILE COMPUTING Equipment Parts Wireless Communication 113806 229 KRAEMERS HARDWARE INC Operating Supplies Water Treatment Plant 113807 720 KRAFKA,STAN Other Contracted Services Water Treatment Plant 113808 22 LAB SAFETY SUPPLY INC Operating Supplies Water Treatment Plant 113809 200 LAKE COUNTRY DOOR Building Repair&Maint. Public Works/Parks 113810 1,965 LAMETTRYS COLLISION Equipment Repair&Maint Fleet Services 113811 43 LANDS END CORPORATE SALES Clothing&Uniforms Telecommunicators 113812 1,235 LANO EQUIPMENT INC Other Rentals Park Maintenance 113813 250 LEON DUDA PLUMBING Other Contracted Services Water Meter Repair 113814 105 LEROY JOB TRUCKING Other Contracted Services Animal Control 113815 1,457 LIFEGUARD STORE INC,THE Capital Under$2,000 Capital Outlay 113816 1,459 MACQUEEN EQUIPMENT INC Equipment Repair&Maint Fleet Services 113817 6,050 MARTIN-MCALLISTER Employment Support Test Human Resources 113818 892 MAXI-PRINT INC Printing Animal Control 113819 292 MENARDS Building Materials Outdoor Center 113820 575 METRO ATHLETIC SUPPLY Operating Supplies Park Maintenance 113821 2,243 METRO EROSION INC Other Contracted Services Storm Drainage Projects 113822 13 METRO SALES INCORPORATED* Equipment Repair&Maint General 113823 731 METROPOLITAN FORD Equipment Parts Fleet Services 113824 691 METROPOLITAN MECHANICAL Building Repair&Maint. Ice Arena 113825 75,663 MIDWEST ASPHALT CORPORATION Asphalt Overlay Street Maintenance 113826 259 MINN BLUE DIGITAL Operating Supplies Engineering 113827 68 MINNESOTA CONWAY Equipment Repair&Maint Fire 113828 398 MINNESOTA PRINT MANAGEMENT LLC Office Supplies General 113829 75 MINNESOTA ROADWAYS CO Patching Asphalt Street Maintenance 113830 248 MINNESOTA VIKINGS FOOD SERVICE Miscellaneous General Facilities 113831 109 MINNESOTA WANNER COMPANY Repair&Maint.Supplies Park Maintenance 113832 110 MN MAINTENANCE EQUIPMENT INC Equipment Repair&Maint Park Maintenance 113833 532 MOORE MEDICAL CORP Safety Supplies Fire 113834 758 MTI DISTRIBUTING INC Equipment Repair&Maint Park Maintenance 113835 3,462 MUNICILITE Equipment Repair&Maint Fleet Services 113836 1,242 MWH AMERICAS INC Design&Engineering Storm Drainage Projects 113837 2,005 NATURAL REFLECTIONS VII LLC Equipment Repair&Maint Water Treatment Plant 113838 173 NEW PIG CORPORATION Repair&Maint.Supplies Water Treatment Plant 113839 9,950 NORTHWEST BITUMINOUS INC Improvements to Land Capital Impr./Maint.Fund 113840 1,050 NORTHWEST BUSINESS SYSTEMS Other Contracted Services Fire 113841 36 NORTHWEST RESPIRATORY SERVICE Operating Supplies Fire 113842 155 OLSEN COMPANIES Equipment Parts Sewer System Maintenance 113843 276 OSI BATTERIES INC Operating Supplies Fire 113844 294,511 PEARSON BROTHERS INC Seal Coating Street Maintenance 113845 88 PETSMART Canine Supplies Police 113846 783 PITNEY BOWES INC Other Rentals General 113847 1,757 PRAIRIE ELECTRIC COMPANY Equipment Repair&Maint Den Road Liquor Store 113848 139 PRAIRIE LAWN AND GARDEN Equipment Parts Fleet Services 113849 356 PRIMEDIA WORKPLACE LEARNING Tuition Reimbursement/School Fire 113850 486 PRINTERS SERVICE INC Repair&Maint.Supplies Ice Arena 113851 178 PRIORITY COURIER EXPERTS Equipment Repair&Maint Fleet Services 113852 7,262 QUALITY FLOW SYSTEMS INC Other Contracted Services Sewer Liftstation 113853 310 RAINBOW FOODS INC. Operating Supplies Cummins House Special Events 113854 782 RAY,LEE Other Contracted Services Softball 113855 6,540 RMR SERVICES INC Other Contracted Services Water Meter Repair 113856 128 SAFETY-KLEEN Operating Supplies Park Maintenance 113857 1,080 SE-ME INC Video&Photo Supplies Police 113858 76 SHERWIN WILLIAMS CO Operating Supplies Street Maintenance 113859 107 SHRED-IT Waste Disposal City Center Operations 113860 108 SNAP-ON TOOLS Small Tools Fleet Services 113861 37 SOUTHWEST SUBURBAN PUBLISHING- Employment Advertising Human Resources 113862 216 SPECTRUM LABS INC Other Contracted Services Round Lake 113863 40 SPORTS WORLD USA INC Awards Raquetball 113864 9,451 SRF CONSULTING GROUP INC Other Contracted Services Planning&Development 113865 478 STATE CHEMICAL MFG.CO.,THE Cleaning Supplies Water Treatment Plant 113866 747 STEMPF AUTOMOTIVE INDUSTRIES I Equipment Parts Fleet Services 113867 328 STRINGER BUSINESS SYSTEMS INC Operating Supplies General 113868 187 SUBURBAN CHEVROLET GEO Equipment Parts Fleet Services 113869 24 SUBURBAN PROPANE Motor Fuels Fleet Services ,. j LTD_ City of Eden Prairie Council Check Register 10/1/2002 Check# Amount Vendor Account Description Business Unit 113870 4,580 SUBURBAN TIRE WHOLESALE INC Tires Fleet Services 113871 125 SWEDLUND SEPTIC SERVICES INC Waste Disposal Outdoor Center 113872 125 SWEDLUNDS Waste Disposal Outdoor Center 113873 1,856 SYSTEM CONTROL SERVICES Equipment Parts Water Treatment Plant 113874 34 TAPE COMPANY,THE Video&Photo Supplies Human Resources 113875 550 TESSMAN SEED CO Landscape Materials/Supp Park Maintenance 113876 1,457 THYSSENKRUPP ELEVATOR Equipment Repair&Maint City Center Operations 113877 69 TIERNEY BROS INC Small Tools Fleet Services 113878 10 TRIARCO Operating Supplies Youth Programs Administration 113879 224 TWIN CITY FILTER SERVICE INC Operating Supplies Water Treatment Plant 113880 139 TWIN CITY OXYGEN CO Lubricants&Additives Fleet Services 113881 335 TWIN CITY SEED CO Capital Under$2,000 Capital Impr./Maint.Fund 113882 57 UNION LINE INC/GRAYBEAR Clothing&Uniforms Fire 113883 45 UPPER MIDWEST RCPI Tuition Reimbursement/School Police 113884 47,223 VEIT&CO Improvements to Land Construction Fund 113885 765 VESSCO INC Equipment Parts Water Treatment Plant 113886 272 W W GRAINGER Repair&Maint.Supplies Maintenance 113887 _ 839 WALLACE METRO PRINTING Office Supplies Fire 113888 1,787 WATER SPECIALITY OF MN INC Chemicals Pool Maintenance 113889 479 WATSON CO INC,THE Merchandise for Resale Concessions 113890 422 WEST WELD Equipment Parts Fleet Services 113891 2,331 WESTWOOD PROFESSIONAL SERVICES Design&Engineering Construction Fund 113892 128 WISSOTA MANUFACTURING CO Operating Supplies Concessions 113893 96 WOLF CAMERA Operating Supplies Assessing 113894 1,759 YALE INCORPORATED Equipment Repair&Maint Water Treatment Plant 113895 458 ZEP MANUFACTURING CO Safety Supplies Fleet Services 113896 638 ZIEGLER INC Equipment Repair&Maint Civil Defense 1,894,954 Grand Total 1 113 CITY COUNCIL AGENDA DATE: SECTION: Ordinances and Resolutions October 1,2002 ITEM DESCRIPTION: ITEM NO.: SERVICE AREA/DIVISION: Resolution Pertaining To Expenditure Of City Office of City Manager Funds X-. ' ' Requested Action: Move to: Adopt Resolutions pertaining to expenditure of City funds. Synopsis: The proposed resolutions have been prepared in the wake of the Office of State Auditor's (OSA) report and findings in their investigation of the City of Brooklyn Park. The OSA's primary criticism is that a number of City expenditure processes and practices were not specifcially authorized by the City Council. The proposed resolution will provide formal written authorization by the City Council for a number of City expenses and expenditure processes that were questioned by the OSA in Brooklyn Park. The proposed resolution was prepared by the Office of the City Attorney in consultation with City staff. The City Manager recommends its approval by the City Council. Attachments: Resolution 1yLf CITY OF EDEN PRAIRIE HENNEPIN COUNTY, NIINNESOTA RESOLUTION NO. 2002- THE COUNCIL OF THE CITY OF EDEN PRAIRIE ADOPTS THE FOLLOWING RESOLUTIONS PRETAINING TO EXPRENDITURE OF CITY FUNDS 1. RESOLUTION AUTHORIZING CERTAIN BENEFITS RESOLVED, THE COUNCIL OF THE CITY OF EDEN PRAIRIE, THE COUNCIL MAKES THE FOLLOWING FINDINGS AND AUTHORIZES EXPENDITURES FOR THE FOLLOWING EVENTS: FINDINGS A. The Council is authorized to "prescribe the duties and fix the compensation of all officers, both appointive and elective, employees, and agents", (including volunteers), ("Employees and Officials")pursuant to Minn. Stat. § 412.111. B. Benefits authorized by this resolution (the "Benefits") such as awards, recognitions and social events, (picnics, dinners, luncheons, etc.) for or participated in by Employees, Officials and Volunteers serve to enhance the morale, efficiency and productivity of the City's Employees, Officials and Volunteers. C. Providing the Benefits results in greater satisfaction, attraction, retention and motivation of the City's Employees, Officials and Volunteers. D. Employees, Officials and Volunteers who interact together while partaking and participating in the Benefits develop synergy which allows for better ideas, better cooperation and higher productivity. E. Based upon the foregoing, the expenditure of funds for the following Benefits for the City's Employees, Officials and Volunteers are for a public purpose. AUTHORIZATIONS Based upon the foregoing Findings, and the authority contained in Minn. Stat. §412.111, the Council authorizes expenditures for the following Benefits as compensation for the City's Employees, Officials and Volunteers. 1. Employee recognition lunches; 2. Employee departure and retirement recognition events; 3. Awards and gifts for years of service; 4. Annual employee picnic; 5. Annual holiday party; 6. Annual Record Review Week; 7. Wellness Program; 8. Charitable Giving Campaign; 9. City Commission Members' recognition dinner; 10. Athletic Association's Boards of Directors Education and Recognition Dinner and Awards; 11. Recognition dinners for Police Chaplains and Reserves; 12. New Elected/Appointed Officials and New Employee Orientation programs; 13. Health and Benefit Fair; 14. Munici-Pals; and 15. Administration of employee Sunshine Club. 2. RESOLUTION AUTHORIZING CREDIT CARDS WHEREAS,it is expedient that officers and employees of the City who are authorized to make certain purchases on behalf of the City have available the use of City credit cards. RESOLVED, BY THE COUNCIL OF THE CITY OF EDEN PRAIRIE THAT PURSUANT TO MINNESOTA STATUTES SECTION 471.382: The use of credit cards by any City officer or employee otherwise authorized to make purchases on behalf of the City is authorized, provided that, purchases by credit card must comply with all statutes, rules and/or City policy applicable to City purchases. The use of City credit cards shall be limited to purchases on behalf of the City and no other purpose. 3. RESOLUTION RELATING TO IMPREST FUNDS (PETTY CASH) WHEREAS,the establishment of petty cash funds is necessary for the timely payment of certain expenditures on behalf of the City. RESOLVED, BY THE COUNCIL OF THE CITY OF EDEN PRAIRIE THAT PURSUANT TO MINNESOTA STATUTES SECTION 412.271,SUBD. 5: The Council hereby establishes the following imprest funds for the payment in cash of any proper claim against the City which is impractical to pay in any other manner, except that no claim for salary or personal expenses of an officer or employee shall be paid from such funds: jLf( 1. Finance; 2. Public Safety; 3. Community Center; 4. Park and Recreation Programming; and 5. Building Inspections. RESOLVED FURTHER: The City Manager or his designee shall act as custodian of each such fund who shall be responsible for its safekeeping and disbursement according to law. Money for the operation of such funds shall be secured by transfer from the general fund. Claims itemizing the various demands for which disbursements have been made from the funds shall be presented to the Council at the next Council meeting after the disbursements • have been made. The Council shall act upon it as in the case of other claims and an order shall be issued to the custodian for the amount allowed. The custodian shall use the proceeds of the order to replenish the fund; and if the Council fails to approve the claim in full for any sufficient reason, the custodian shall be personally responsible for the difference. 4. RESOLUTION RELATING TO MEALS WHEREAS, the furnishing or reimbursement of the cost of meals to officials and employees of the City in certain instances is beneficial to the City. RESOLVED, BY THE COUNCIL OF THE CITY OF EDEN PRAIRIE, THAT THE COUNCIL MAKES THE FOLLOWING FINDINGS AND AUTHORIZES EXPENDITURES FOR THE FOLLOWING: FINDINGS AND AUTHORIZATION The furnishing of meals and refreshments or the reimbursement to officials and employees of the City for the cost of meals and refreshments in the circumstances, purposes or times described hereafter is necessary for or conducive to the accomplishment of employees' duties and responsibilities in the conduct of the business of the City and is of a public benefit and a public purpose and is hereby authorized, a. Those provided immediately before or in conjunction with meetings of the Council, committees or subgroups. b. City business meetings at which those in attendance involve predominantly non- City employees. c. When a breakfast, lunch or dinner meeting is conducted for official City business when it is the only practical time to meet and when it involves non City employee participants. d. In connection with a conference,workshop,seminar or meeting which the employee has been authorized to attend. e. Department-sponsored meetings,conferences or workshops where invited participants include non-City employees. f. An organization-wide or department-wide annual,quarterly or monthly staff meeting. g. At regularly scheduled meetings of the City Manager and department heads. h. Meals for staff involved in election related duties when the performance of their duties prohibits staff from leaving the building. i. At the discretion of the City Manager. 5. RESOLUTION RELATING TO MEMBERSHIPS WHEREAS, memberships of the City or City employees and officials in community, civic,business and service organizations are of City and public benefit. RESOLVED, BY THE COUNCIL OF THE CITY OF EDEN PRAIRIE THAT THE COUNCIL MAKES THE FOLLOWING FINDINGS AND AUTHORIZES EXPENDITURES FOR THE FOLLOWING: FINDINGS AND AUTHORIZATION The membership by the City and its officials and employees in community, civic, business and service organizations (including but not limited to the Eden Prairie Chamber of Commerce, the Eden Prairie Rotary Club, Sensible Land Use Coalition and Habitat for Technology) enhances the ability of the officials and employees to serve the public and conduct City business through the interaction of the officials and employees by and with such organizations and members and thus provides a public benefit and serves a public purpose. The expenditure of funds by the City for membership fees, dues or other expenses including meals and refreshments is hereby authorized. ADOPTED by the City Council of the City of Eden Prairie this 1st day of October,2002. Nancy Tyra-Lukens,Mayor ATTEST: Kathleen Porta, City Clerk I11(6 CITY COUNCIL AGENDA DATE: SECTION: Ordinances and Resolutions October 1,2002 SERVICE AREA/DIVISION: ITEM DESCRIPTION: ITEM NO.: First Reading of an Ordinance amending City Office of City Manager Code Section 2.05, Subd. 3,relating to Mayor and X .1 Councilmember Salaries Requested Action: Move to: Approve First Reading of an Ordinance amending City Code Section 2.05, Subd. 3, relating to Mayor and Councilmember salaries; and adopting by reference City Code Chapter 1 and Section 11.99 which,among other things,contain penalty provisions. Synopsis: The proposed ordinance will codify the City expenditure process changes incorporated in the resolution considered by the Council at the October 1,2002 meeting. The ordinance is necessary because the resolution may be considered an increase in compensation to City Councilmembers, although the contents of this resolution represent no actual change to the benefits received by Eden Prairie elected officials. The resolution is being considered by the Council at the recommendation of the City Attorney to conform our current practices to recently announced findings from the Office of the State Auditor's investigation of the City of Brooklyn Park. State law requires that changes to the compensation of City Councilmembers must be adopted prior to an election and implemented after an election. The ordinance will be considered at the October 1st and 15th Council meetings and will be effective January 1,2003. This timeline will satisfy state statutes on this matter. The City Manager recommends the Council approve the first reading of this ordinance. Attachments: Ordinance CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA ORDINANCE NO. -2002 AN ORDINANCE OF THE CITY OF EDEN PRAIRIE, NIINNNESOTA, AMENDING CITY CODE SECTION 2.05, SUBD 3, RELATING TO MAYOR AND COUNCILMEMBER SALARIES; AND ADOPTING BY REFERENCE CITY CODE CHAPTER 1 AND SECTION 11.99 WATCH, AMONG OTHER THINGS, CONTAIN PENALTY PROVISIONS THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE,MINNESOTA, ORDAINS: Section 1. City Code Section 2.05, Subd. 3 is amended by adding subsection D as follows: D. The Mayor and each Council Member may attend and participate in the benefits (including food and refreshments) of the following activities which shall be deemed to constitute compensation for the Mayor and Council Members: an annual recognition dinner for Commission members; employee events including employee picnic, and Thanksgiving and Christmas luncheons; other Employee and Commission recognition events; public open houses; food and refreshments provided in conjunction with periodic business meetings with the City Manager; and food and refreshments provided immediately before or in conjunction with meetings of the Council. The benefits provided in this subsection shall become effective January 1, 2003. Section 2. City Code Chapter 1 entitled "General Provisions and Definitions Applicable to the Entire City Code Including Penalty for Violation" and Section 4.99 entitled "Violation a Misdemeanor" are hereby adopted in their entirety, by reference, as though repeated verbatim herein. Section 3. This ordinance shall become effective from and after its passage and publication. FIRST READ at a regular meeting of the City Council of the City of Eden Prairie on the 1st day of October, 2002, and finally read and adopted and ordered published at a regular meeting of the City Council of said City on the day of ,2002. Kathleen Porta, City Clerk Nancy Tyra-Lukens,Mayor PUBLISHED in the Eden Prairie News on the day of ,2002. 4 SO Arkted 0 A047;1 y 17114 F MNDUYIager 0 To: Scott Neal, EMORA City Man From: James G. Clark,Police Chief Date: September 30, 2002 Eden Prairie Subject: Mutual Aid to Minneapolis • As you are aware,the City of Minneapolis is hosting the International Association of Chiefs of Police conference October 5—9,2002. The Minneapolis Police Department requested assistance from law enforcement agencies throughout the State for security and hospitality. A number of our volunteer Reserve Officers and Chaplains will be assisting with various "non- sworn"duties such as staffing information booths. Additionally our ERU Team will be highlighted at the opening ceremony in a showcase of Minnesota Law Enforcement. • Recently the Minneapolis Police Department made an urgent plea asking for assistance with the security side of the event. The security for this event has changed dramatically since September • 11, 2001. In addition.to the large number of delegates representing law enforcement agencies from around the world they anticipate.appearances by a number of high ranking Justice Department Officials. The need for additional staff moved to another step with the recent scheduling of the Major League Baseball playoff games. As you might assume,Minneapolis is responsible for security at those games also. We, along with many of our neighbors,have agreed to send several officers to assist with security at the Conference Center. Aside from the stated need,this is one of very few opportunities that we get to repay Minneapolis Police Department for their assistance to our City over the years,when we have called upon them. The Minneapolis Police Department has requested that we sign the attached Mutual kid Agreement for this event. The agreement has been reviewed by our City Attorney. Mr.Rosow has suggested that, due to the timing,you sign the agreement and hand carry it to the Council meeting on October 1,2002. I apologize for submitting this late for the meeting and assure that this is not our practice. However, the need to assist Minneapolis has changed over the past few days. Thank you Minneapolis Police Department 2002 1ACP Conference Aid Agreement 1. Purpose The City of Minneapolis and the Minneapolis Police Department is hosting the 109th Annual international Association of Chiefs of Police October 4-9, 2002. The Minneapolis Police Department is obligated to provide security for this conference. To accomplish this task the Minneapolis Police Department Is requesting the assistance of other Law Enforcement agencies in the state of Minnesota. For the purposes of this Agreement the type of assistance being requested is in the form of sworn personnel who are licensed peace officers in the State of Minnesota. This agreement is made pursuant to Minnesota Statutes, Section 471.59, which authorizes the joint and cooperative exercise of powers, common to the parties. ll. Definition of Terms Requesting Agency: Minneapolis Police Department Sending Agency: Law Enforcement agencies of the State of Minnesota Assistance: Personnel and equipment Personnel: Sworn personnel who are licensed peace officers in the State of Minnesota Equipment: Any equipment sent with personnel including squad cars and personal gear Duty/duties: Any security role at 2002 IACP Conference or IACP Conference related function including but not limited to, standing post, roving post; checking credentials/Identification, Assisting Requesting Agency in the performance of law enforcement duties as authorized under Minnesota State Statute §609.06. • 11I. Parties The Parties to this Agreement shall consist of as many Minnesota Law Enforcement Agencies who approve this Agreement and the Minneapolis Police Department, Upon approval, the executive signature page of this Agreement shall be sent to the Minneapolis Police Department along with a certified copy of the documentation evidencing approval. Approval of this Agreement by a Party shall be evidenced by: • Far a municipality, a resolution adopted by the governing body, or • J?&ncg1O2A-OQ493►4.,2-a2 ffnal I For a non-municipality, a resolution adopted by the governing body or a letter executed by an official with sufficient authority to bind that party which recites the basis of that authority. IV. Effective Dates The effective dates of this Agreement shall be only those dates during the 109th Annual International Association of Chiefs of Police, i.e. October 5 through 9, 2002, . inclusive, V. Requesting'Agency The Requesting Agency is the Minneapolis Police Department, The Sending Agency hereby releases the Requesting Agency from all claim of liability per paragraph VII of this Agreement. The Requesting Agency shall operate and manage this Agreement at all times. VI. Procedure Subd. 1, The Requesting Agency is requesting the assistance of the Minnesota Law Enforcement agency named below for the 2002 IACP Conference, By providing any assistance including any personnel and equipment the Sending Agency acknowledges the below listed liability statement. Subd, 2. The Requesting Agency shall be in command of all situations and duty/duties concerning the 2002 IACP Conference and any event associated with the 2002 IACP Conference. Subd. 3. When a Sending Agency supplies personnel to the Requesting Agency, such personnel shall remain under the direction and control of the Sending Agency; shall be subject to the policies and procedures of the Sending Agency; shall be paid by the Sending Agency; shall be protected by the worker's compensation of the Sending Agency; and shall otherwise be deemed to be performing their regular duties for the Sending Agency, Subd. 4. The Sending Agency shall be responsible for its own personnel, equipment, and supplies and for injuries or death to any such personnel or damage to any such equipment or supplies, Each agency waives the right to sue any other agency for any worker's compensation benefits paid to its awn employee or volunteer even If the Injuries were caused wholly or partially by the negligence of any other agency, its officers employees or volunteers. Subd, 5. The Sending Agency shall demand no charges or costs for assistance provided under this agreement, .1M14m /Q2A-0049314.12o2 fugal 2 VII. Liability The Requesting Agency shall not be responsible for any injuries, losses or damages to persons or property arising out of the acts of any of the personnel of the Sending Agency nor shall the Sending Agency be responsible for any injuries, losses or damages arising out of acts of any personnel of the Requesting Agency or the personnel of any other Sending Agency, No Agency shall be responsible for injuries, deaths, losses or damages arising out of the actions of Law Enforcement Personnel of any other agency, Sy entering into this Agreement, agencies are not waiving any provisions or liability limitations established in Chapter 466, Minnesota Statutes. Agent of Requesting Agency Sending Agency Agent of Sending Agency • • JML:mcgf02A-0048314.1202 Mal 3 / PS&RS & W&M/Budget-Your Committee, having under consideration the provision of security for the 109th International Association of Chiefs of Police Convention to be held October 4- 9, 2002 in Minneapolis, now recommends,that the Police Department be authorized to request the assistance of other law enforcement agencies to provide security, including but not limited to standing post, roving past, checking credentlais/identification and general assistance in the performance of law enforcement duties as authorized under Minnesota Statutes Section 609.06. • ADOPTED Approved as to Aooyura • p�+ Certified as an official action of the City Council; 1 ni3�7k��'�1 W� FSS� S I�. ,tiq4:11,�--7 .7impl:r.I' J7�i_�E aefigg . dri.g• T !F. ii 1.•.I1I Irjw.0 pt� u�q �, C�y�i S•.•��c�;�lw�p A JII � �7iR�1,1 �••�in-iiF.�•-•�?�i�".� AUNGL'v0 •IND�CA�ES ql,. .a'� sJ1 �'Sliyr'."".�t�� QIGI^,�1,y�i;'•:+- G O 1lSii1ill�l 1� �r' •f1T1 1 tl 1•N/.JI �I.wtJnt• .��{..l.�,krl.;r1.1 .1 -•SNiS i7C1CY Iw.+ COUNCIL AYE NOT ABSENT VOTE TO VOTE TO COUNCIL AYE NAY NOT ABSENT VOTE TO VOTE TO MEMBER VOTING OVERRIDE SUSTAIN MEMBER VOTING OVERRIDE SUSTAIN Prosident Qoodmen x • ' Ostrow Utl{Aron X arty x T Schiff x Blamer x Nizlolek -Johnson Benson X Johnson Lea x Colvin Roy x. Zimmermann x Lane PASSED MAY 17 ZOQZ 2g.APPROVED D NOT APPROVED Q VETOED pATE ATTEST TMr23zoaaC Rx DATE ComcnRd Rev 1A2 The City of Minneapolis has as witness to the foregoing has caused this Agreement to be executed in its behalf by its proper officials, as of the date first written below. Dated; CITY OF MINNE OLIS Y; May Countersigned: �`' ;;;;7,... , 'A L-{l. . Assistant Finance Officer --er--%.".7.- -----e--•'-------- ' Chief of Police ` APPROVED AS TO FORM: -itt, Ad•Z . A istant City Attorney. . • • JMI_mc/02A.14e3/4.12.oz final 4 • CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO. 2002-164 MUTUAL AID AGREEMENT BETWEEN THE CITIES OF EDEN PRAIRIE AND MINNEAPOLIS FOR THE 109TH ANNUAL INTERNATIONAL CHIEF'S OF POLICE CONFERENCE WHEREAS, the City of Minneapolis has formally requested the assistance of local and state law enforcement to help with security for the 109th Annual International Chiefs of Police Conference at the Convention Center from October 5-9, 2002; and WHEREAS, the City of Eden Prairie has agreed to assist the City of Minneapolis by assigning two sworn officers to the security detail; and WHEREAS,the Eden Prairie officers will perform duties in accordance with law and under the direction of Minneapolis Police. NOW,THEREFORE,BE IT RESOLVED by the City Council of the City of Eden Prairie that the Mutual Aid Agreement between the City of Eden Prairie and the City of Minneapolis to help with security at the 109th Annual International,Chief's of Police Conference from October 5 — 9, 2002,is approved. ADOPTED by the Eden Prairie City Council on October 1, 2002. • Nancy Tyra-Lukens,Mayor ATTEST: 1 Kathleen Porta,City Clerk CITY COUNCIL AGENDA DATE: October 1,2002 SECTION: Appointments SERVICE AREA/DIVISION: ITEM DESCRIPTION:Appointment to the ITEM NO.: Parks and Recreation Parks,Recreation&Natural Resources Laurie A. Obiazor,Manager Commission Requested Action: Move to: Appoint to the Parks,Recreation&Natural Resources Commission Bruce Shaepe—Term to expire 3/31/2004 Synopsis: In a memorandum to the Mayor and City Council, dated September 6,2002,Therese Benkowski announced her resignation from the Parks,Recreation&Natural Resources Commission. As of September 27,2002, she will no longer be a resident of Eden Prairie. On January 15, 2002,the City hosted a Board&Commission Open House seeking any citizen interested in serving on a City Board or Commission, Bruce Schaepe attended the Open House and completed and submitted an application for the Parks,Recreation&Natural Resources Commission. There were no openings on the Parks,Recreation&Parks Commission at this time. Mr. Schaepe's application is the only application on file for this commission. Background: Mr. Schaepe is currently employed as a Senior Environmental Engineer with Peer Environmental. He served on the Water Management Planning Task Force and the Riley Purgatory Bluff Creek Watershed Citizens Advisory Committee. Please refer to application for further details on education,civic • experience and occupation. 15t