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HomeMy WebLinkAboutCity Council - 08/18/2009 AGENDA CITY COUNCIL WORKSHOP & OPEN PODIUM TUESDAY,AUGUST 18, 2009 CITY CENTER 5:00—6:25 PM, HERITAGE ROOM II 6:30—7:00 PM, COUNCIL CHAMBER CITY COUNCIL: Mayor Phil Young, Council Members Brad Aho, Ron Case, Jon Duckstad, and Kathy Nelson BUDGET ADVISORY COMMISSION: Don Uram—Chair, Richard King—Vice-Chair, Annette Agner, Eapen Chacko, Jon Muilenburg, Richard Proops, Gwen Schultz CITY STAFF: City Manager Scott Neal, Police Chief Rob Reynolds, Fire Chief George Esbensen, Public Works Director Eugene Dietz, Community Development Director Janet Jeremiah, Parks and Recreation Director Jay Lotthammer, Communications Manager Joyce Lorenz, City Attorney Ric Rosow, and Recorder Lorene McWaters Heritage Room II I. 2010-2011 Budget Council Chamber II. OPEN PODIUM III. ADJOURNMENT Memorandum Rif EDEN TO: Mayor and City Council PRAIRIE FROM: Budget Advisory Commission LIVE•WDRK•DREAM DATE: August 18,2009 RE: 2010/2011 General Fund Operating Budget Introduction The BAC has reviewed the first draft of the 2010/2011 General Fund Operating Budget prepared by the City Manager. In general, the BAC agrees with the approach taken. The budget preserves service levels and with a few exceptions maintains flat spending. This is an important consideration in both the current and near-term economic environment. The BAC does have some input and concerns to share with the City Council which are outlined below. Use of budget stabilization fund The BAC believes that the proposed budget relies too heavily on the Budget Stabilization Fund ("B SF"), resulting in a 2011 period-ending balance that is deemed imprudently low. The fund was originally established to supplement the city's revenue during an economic downturn and not as a source of funding on-going operations which the current budget proposal does. Replenishing the fund to suitable levels in the future would seem unlikely under most scenarios. Below is a chart which shows the projected use of the fund the next few years. Adjusted Proposed Proposed General Fund 2009 2010 2011 Revenue 35,615,313 35,956,229 36,256,566 Expense 36,865,313 37,412,427 38,178,323 Difference (1,250,000) (1,456,198) (1,921,757) BSF Balance 4,470,035 3,013,837 1,092,080 The BAC recommends that the City plan to use less of the budget stabilization fund and bring the budget closer to balance (revenues equal to expenditures). A few ideas to help with this include reducing expenses, eliminating or delaying proposed enhancements to the budget, implementing a franchise fee, and transferring a portion of the money within the economic development fund to replenish the budget stabilization fund. These ideas are reviewed below. Expense Reduction The BAC recommends that the City Council reduce operating expenditures. No specific reduction recommendations were agreed upon by a majority of the BAC but some members had specific recommendations that could be further reviewed the next few months. Enhancements to the Budget A goal of the budget is to preserve and enhance service levels in areas of public health, public safety and infrastructure maintenance. The BAC recommends that the word enhance is not used and that the Council focus on maintaining critical services while considering the elimination of ancillary services. The most significant discretionary service level enhancement to the budget is the addition of $120,000 in 2010 and $240,000 in 2011 for duty crew pay for the fire department. The Fire Chief and his staff made a compelling case of why this may be a good option for the City. Although the BAC is generally supportive, some BAC members think this should be moved to a future budget and some are interested in whether there are less costly options to accomplish the same objectives. Another addition for the 2011 budget is for two police officers. This $156,000 item was not as thoroughly discussed since it is a year out but general comments suggested that this item delayed as well. The Police Chief indicated it may be more appropriate to review in greater detail in a year. The state of the economy and police operations in a year may dictate staff and the City Manager's recommendation on the addition of the officers. Franchise Fee The BAC recommends that a franchise fee be considered for street lighting, similar to the cable television franchise fee,which is a significant source of revenue in the budget. It would spread the costs of street lighting across all users of the system. It would also contribute significantly to balancing the budget. The drawbacks include charging entities such as the school district that in turn needs to charge taxpayers to pay for the service; in addition, non-profits would have to account for the additional charges in their budgets. However, the BAC feels that it spreads the cost of the services over a broader set of rate payers, all of which benefit from the street lighting services. Economic Development Fund If the Council decides that it is appropriate to fund operations at the level proposed, the BAC recommends that a portion of the Economic Development Fund cash balance be transferred to the Budget Stabilization Fund. This is one strategy to maintain the balance in the budget stabilization fund at higher levels for the future. The BAC recognizes that this transfer may limit the City's ability to contribute toward the major center area streetscape project in the future and recommends that the project be delayed. In the 2009 to 2013 Capital Improvement Plan $800,000 is budgeted for this project in 2012 and 2013. Depending on the use of the budget stabilization funds, funds may be available in the future for the streetscape project. Conclusion The BAC supports the general direction of the budget and commends the City Manager and staff for constructing a budget that attempts to balance competing interests in a difficult environment. The BAC will continue to work the next few months to refine the recommendations and to review in greater depth the 2010/2011 general fund operating budget. The BAC will make specific recommendations that will reduce operating expenditures yet enable the City to maintain a strong financial position with flexibility to adapt to future economic conditions. AGENDA EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY,AUGUST 18, 2009 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Phil Young, Council Members Brad Aho, Jon Duckstad, Kathy Nelson, and Ron Case CITY STAFF: City Manager Scott Neal, Parks &Recreation Director Jay Lotthammer, Public Works Director Eugene Dietz, City Planner Michael Franzen, Community Development Director Janet Jeremiah, City Attorney Ric Rosow and Council Recorder Jan Curielli I. ROLL CALL/CALL THE MEETING TO ORDER II. COLOR GUARD /PLEDGE OF ALLEGIANCE III. COUNCIL FORUM INVITATION IV. PROCLAMATIONS/PRESENTATIONS A. HENNEPIN TECHNICAL COLLEGE UPDATE B. EDEN PRAIRIE BASEBALL ASSOCIATION CONTRIBUTION FOR BASEBALL FIELD UPGRADES C. MILLER PARK BARRIER FREE PLAY AREA CONTRIBUTION V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS VI. MINUTES A. COUNCIL WORKSHOP HELD TUESDAY, JULY 21, 2009 B. CITY COUNCIL MEETING HELD TUESDAY,JULY 21, 2009 VII. REPORTS OF ADVISORY BOARDS & COMMISSIONS VIII. CONSENT CALENDAR A. MENARDS Second Reading of the Ordinance for Planned Unit Development District Review on 15.72 acres, Zoning District Amendment in the Commercial regional Service Zoning District on 15.72 acres, and Site Plan Review on 15.72. Location: 12600 Plaza Drive. (Ordinance for PUD District Review and Zoning District Amendment; Resolution for Site Plan Review) B. APPROVE SECOND READING OF ORDINANCE AMENDING CITY CODE SECTION 11.51, RELATING TO STANDARDS FOR PROTECTION OF WETLANDS CITY COUNCIL AGENDA August 18, 2009 Page 2 C. ADOPT RESOLUTION REQUESTING THE U.S. ARMY CORP OF ENGINEERS STUDY EROSION PROBLEMS ON THE MINNESOTA RIVER D. ADOPT RESOLUTION APPROVING CLOSURE OF A SEGMENT OF RIVERVIEW ROAD TO PUBLIC USE E. APPROVE CHANGE ORDER NO. 1 FOR THE 2009 BITUMINOUS OVERLAY PROJECT F. APPROVE DRAINAGE AND UTILITY EASEMENT AGREEMENT FOR STABILIZATION OF TWO EROSION GULLIES IN THE LOWER MINNESOTA RIVER WATERSHED DISTRICT G. AWARD CONTRACT FOR REPLACEMENT OF TRAIL ON AMSDEN WAY TO CURBMASTERS INC. H. APPROVE CONTRACT WITH CERIDIAN CORPORATION AS HUMAN RESOURCES INFORMATION (HRIS) AND PAYROLL SERVICE PROVIDER I. ADOPT RESOLUTION APPROVING GRANT AGREEMENT WITH THE MINNESOTA DEPT. OF PUBLIC SAFETY FOR THE SAFE AND SOBER COMMUNITIES PROJECT FOR 2009-2010 J. APPROVE AGREEMENT AUTHORIZING HENNEPIN COUNTY TO SUBMIT A GRANT APPLICATION TO U.S. DEPT. OF JUSTICE FOR AN EDWARD BYRNE MEMORIAL JUSTICE ASSISTANCE GRANT (JAG) K. ADOPT RESOLUTION APPROVING MUTUAL AID PACT WITH HENNEPIN COUNTY L. AWARD CONTRACT FOR CHAIN LINK FENCING AT VARIOUS PARK LOCATIONS TO PASS FENCE IX. PUBLIC HEARINGS/MEETINGS A. 2010 RECREATION FEES & CHARGES B. AT & T CELLULAR TOWER-OLYMPIC HILLS by Buell Consulting, Inc. Request for Site Plan Review on 23.44 acres. Location: 12100 Pioneer Trail. (Resolution) C. PRAIRIE PHYSICIANS BUILDING by CB Richard Ellis. Request for Guide Plan Change from Office to Community Commercial on 1.24 acres; Zoning District Change from Office to Community Commercial on 1.24 acres. Location: 16570 W. 78th St. (Resolution for Guide Plan Change; Ordinance for Zoning District Change) CITY COUNCIL AGENDA August 18, 2009 Page 3 X. PAYMENT OF CLAIMS XI. ORDINANCES AND RESOLUTIONS XII. PETITIONS, REQUESTS AND COMMUNICATIONS XIII. APPOINTMENTS XIV. REPORTS A. REPORTS OF COUNCIL MEMBERS B. REPORTS OF CITY MANAGER 1. Prairieview Liquor Store Lease 2. Agreement with Scott W. Baker Associates Inc. C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR D. REPORT OF PARKS AND RECREATION DIRECTOR E. REPORT OF PUBLIC WORKS DIRECTOR F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY XV. OTHER BUSINESS XVI. ADJOURNMENT ANNOTATED AGENDA DATE: August 14, 2009 TO: Mayor and City Council FROM: Scott Neal, City Manager RE: City Council Meeting for Tuesday, August 18, 2009 TUESDAY, AUGUST 18, 2009 7:00 PM, COUNCIL CHAMBER I. ROLL CALL/CALL THE MEETING TO ORDER II. COLOR GUARD /PLEDGE OF ALLEGIANCE III. OPEN PODIUM INVITATION Open Podium is an opportunity for Eden Prairie residents to address the City Council on issues related to Eden Prairie city government before each Council meeting, typically the first and third Tuesday of each month, from 6:30 to 6:55 p.m. in the Council Chamber. If you wish to speak at Open Podium,please contact the City Manager's office at 952.949.8412 by noon of the meeting date with your name,phone number and subject matter. If time permits after scheduled speakers are finished, the Mayor will open the floor to unscheduled speakers. Open Podium is not recorded or televised. If you have questions about Open Podium,please contact the City Manager's Office. IV. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS MOTION: Move to approve the agenda. V. PROCLAMATIONS/PRESENTATIONS A. HENNEPIN TECHNICAL COLLEGE UPDATE Dr. Cecilia Cervantes, President of Hennepin Technical College, will provide an update on the school's activities. B. EDEN PRAIRIE BASEBALL ASSOCIATION CONTRIBUTION FOR BASEBALL FIELD UPGRADES Eden Prairie Baseball Association President, Gary Kraemer along with other board members will attend the meeting and present the check to the City Council. Synopsis: The Eden Prairie Baseball Association is contributing $98,222.14 to the City of Eden Prairie to fund upgrades at the following baseball facilities; Forest Hills Park(outfield fencing at two fields), Staring Lake Park(irrigation and fencing at two fields) and Nesbitt Park(fencing at two fields). These upgrades provide a higher level playing experience for the players as well as increasing the overall aesthetics and safety of the fields and parks. ANNOTATED AGENDA August 18,2009 Page 2 The Eden Prairie Baseball Association along with other Eden Prairie Athletic Associations has a long history of contributing funding to enhance the quality and playability of the athletic facilities in Eden Prairie. Recently, the Eden Prairie Baseball Association contributed funds to construct the Stadium at Round Lake and recruited advertisers to fund the scoreboard at the field. MOTION: Move to accept the contribution from the Eden Prairie Baseball Association in the amount of $98,222.14 to assist with funding for outfield fencing at two fields at Forest Hills Park, irrigation and fencing at two fields at Staring Lake Park and fencing at two fields at Nesbitt Park. C. MILLER PARK BARRIER FREE PLAY AREA CONTRIBUTION Synopsis: Mike Garvin, along with family and friends, has continued to recruit funds to be used towards future phases for the Miller Park Barrier Free Play Area. In addition to the $208,020.43 that has been previously contributed, an additional $10,525.00 has been raised towards future phases of the project. Eden Prairie resident Mike Garvin approached staff with a pledge to assist with the funding for a Barrier Free Play Area at Miller Park. Mr. Garvin's family has made use of similar play areas while visiting other states. Mr. Garvin and his wife recognized the benefits and positive impacts that a barrier free play area can have for people with all types of abilities. Miller Park is one of three community parks and receives a higher amount of use than neighborhood parks and smaller play structures. Over the past several years, staff has maintained the equipment by replacing parts that were damaged, broke or in an unsafe condition. Many of the replacement parts are no longer available due to the age of the equipment. Funds were budgeted and approved as a part of the Capital Improvement Plan for replacement of portions of the play area. Mr. Garvin and his family have committed funds to add to the amount of work that is able to be performed and enhance the accessibility of the play area. Increased accessibility will certainly be beneficial for children who use wheelchairs, but past experience has shown that accessible surfaces and play components also offer greater access and enjoyment to all users. Previously, Mike Garvin presented the City of Eden Prairie with funds of $134,369.00 and $76,651.43 that were raised through events and fundraising promotions. The initial phase of construction was completed in the spring of 2009 and is currently being used. Other portions of the equipment are due to be replaced in the near future. MOTION: Move to accept the donation from the Tom and Kathy Miller Family Foundation in the amount of $10,525.00 to assist with funding for future development of the Miller Park Barrier Free Play Area. ANNOTATED AGENDA August 18,2009 Page 3 VI. MINUTES MOTION: Move to approve the following City Council minutes: A. COUNCIL WORKSHOP HELD TUESDAY, JULY 21, 2009 B. CITY COUNCIL MEETING HELD TUESDAY,JULY 21, 2009 VII. REPORTS OF ADVISORY BOARDS & COMMISSIONS VIII. CONSENT CALENDAR MOTION: Move approval of items A-L on the Consent Calendar. A. MENARDS Second Reading of the Ordinance for Planned Unit Development District Review on 15.72 acres, Zoning District Amendment in the Commercial regional Service Zoning District on 15.72 acres, and Site Plan Review on 15.72. Location: 12600 Plaza Drive. (Ordinance for PUD District Review and Zoning District Amendment; Resolution for Site Plan Review) B. APPROVE SECOND READING OF ORDINANCE AMENDING CITY CODE SECTION 11.51, RELATING TO STANDARDS FOR PROTECTION OF WETLANDS C. ADOPT RESOLUTION REQUESTING THE U.S. ARMY CORP OF ENGINEERS STUDY EROSION PROBLEMS ON THE MINNESOTA RIVER D. ADOPT RESOLUTION APPROVING CLOSURE OF A SEGMENT OF RIVERVIEW ROAD TO PUBLIC USE E. APPROVE CHANGE ORDER NO. 1 FOR THE 2009 BITUMINOUS OVERLAY PROJECT F. APPROVE DRAINAGE AND UTILITY EASEMENT AGREEMENT FOR STABILIZATION OF TWO EROSION GULLIES IN THE LOWER MINNESOTA RIVER WATERSHED DISTRICT G. AWARD CONTRACT FOR REPLACEMENT OF TRAIL ON AMSDEN WAY TO CURBMASTERS INC. H. APPROVE CONTRACT WITH CERIDIAN CORPORATION AS HUMAN RESOURCES INFORMATION (HRIS) AND PAYROLL SERVICE PROVIDER I. ADOPT RESOLUTION APPROVING GRANT AGREEMENT WITH THE MINNESOTA DEPT. OF PUBLIC SAFETY FOR THE SAFE AND SOBER COMMUNITIES PROJECT FOR 2009-2010 ANNOTATED AGENDA August 18,2009 Page 4 J. APPROVE AGREEMENT AUTHORIZING HENNEPIN COUNTY TO SUBMIT A GRANT APPLICATION TO U.S. DEPT. OF JUSTICE FOR AN EDWARD BYRNE MEMORIAL JUSTICE ASSISTANCE GRANT (JAG) K. ADOPT RESOLUTION APPROVING MUTUAL AID PACT WITH HENNEPIN COUNTY L. AWARD CONTRACT FOR CHAIN LINK FENCING AT VARIOUS PARK LOCATIONS TO PASS FENCE IX. PUBLIC HEARINGS/MEETINGS A. 2010 RECREATION FEES & CHARGES Official notice of this public hearing was published in the August 6, 2009,Eden Prairie News. Synopsis: Staff is submitting the proposed fees and charges for inclusion in the 2010 budget. These fees and charges are a part of the annual operating budget within the Parks and Recreation Department and help offset operating expenses. In 2008, $2,966,785.00 was raised through parks and recreation fees and charges. The public notice was published in the Eden Prairie News on August 6, 2009. The fees and charges were reviewed by the Parks, Recreation and Natural Resources Commission at their August 3rd meeting. The Commission voted unanimously to recommend approval by the City Council. Some fees and charges are proposed to increase slightly to reflect increasing expenses and market changes. Fees and charges are established for programs and services offered through the Parks and Recreation Department. In order to promote the programs and services that these fees and charges are associated with in a timely manner(approximately September), staff is requesting City Council approval. Ice time rates would go into effect September 1. All other fee adjustments would be made beginning January 1, 2010. MOTION: Move to approve the proposed Park and Recreation fees and charges for inclusion in the 2010 budget. B. AT & T CELLULAR TOWER-OLYMPIC HILLS by Buell Consulting, Inc. Request for Site Plan Review on 23.44 acres. Location: 12100 Pioneer Trail. (Resolution) Official notice of this public hearing was published in the August 6, 2009,Eden Prairie News and sent to 108 property owners. Synopsis: AT&T is proposing a new 100-foot cellular monopole and mechanical equipment building at the Pax Christi Catholic Community to provide improved cellular coverage for the surrounding area,particularly to the southeast. The plan meets city requirements for setback and transition. ANNOTATED AGENDA August 18,2009 Page 5 On June 18, 2009, the proponent held a meeting on the Pax Christi Catholic Community property to discuss a compromise for the relocation of the 100-foot cellular monopole on the Church property. Representatives from AT&T Cellular, Pax Christi Church, the Senior Planner for Eden Prairie, and approximately fifteen neighborhood residents were in attendance. After significant discussion it was agreed that the monopole would be shifted approximately 170 feet south from its previous location, or approximately 30 feet farther south from the northwest corner of the building. This location provides additional screening of the monopole by the building itself and a stand of large trees just to the west. A monopole setback from residentially zoned property requires four feet of setback for each foot of tower. Based on the 100 foot tall monopole a setback of 400 feet is required. The proposed setbacks are 560 feet to the east, 600 feet to the south, 800 feet to the west, and 1,170 feet to the north meeting code. The 120-Day Review Period Expires on September 17, 2009. The Planning Commission continued the review this project at its June 8 meeting so the proponent, church, and neighbors could meet on site and address the relocation of the tower from its original location adjacent to Purgatory Creek, as recommended in the Staff Report. The Commission voted 9-0 to recommend approval of the project at its July 13, 2009 meeting. MOTION: Move to: • Close the Public Hearing; and • Adopt the Resolution for Site Plan review on 23.44 acres. C. PRAIRIE PHYSICIANS BUILDING by CB Richard Ellis. Request for Guide Plan Change from Office to Community Commercial on 1.24 acres; Zoning District Change from Office to Community Commercial on 1.24 acres. Location: 16570 W. 78th St. (Resolution for Guide Plan Change; Ordinance for Zoning District Change) Official notice of this public hearing was published in the August 6, 2009,Eden Prairie News. Synopsis: The project requires a Comprehensive Guide Plan Change from Office to Community Commercial. Commercial guiding is appropriate for the following reasons: • The site is adjacent to Highway 5. • The site is adjacent to land guided commercial to the east. • Site access is from the frontage road. No changes are being proposed to the existing building or site plan. The building and site conform to commercial zoning requirements. The 120-Day Review Period ANNOTATED AGENDA August 18,2009 Page 6 Expires on October 2, 2009. The Planning Commission voted 9-0 to recommend approval of the project at the July 13, 2009 meeting. MOTION: Move to: • Close the Public Hearing; and • Adopt the Resolution for Guide Plan Change from Office to Community Commercial on 1.2 acres; and • Approve 1st Reading of the Ordinance for Planned Unit Development District Review with waivers, and Zoning District Change from Office to Community Commercial on1.2 acres. X. PAYMENT OF CLAIMS MOTION: Move approval of the Payment of Claims as submitted (Roll Call Vote). M. ORDINANCES AND RESOLUTIONS XII. PETITIONS, REQUESTS AND COMMUNICATIONS XIII. APPOINTMENTS XIV. REPORTS A. REPORTS OF COUNCILMEMBERS B. REPORTS OF CITY MANAGER 1. Prairie View Liquor Store Lease Synopsis: The current lease of the Prairie View Liquor operations expires September 30, 2009. An opportunity has been identified at the Prairie View Mall for the liquor operations as additional space has become vacant at the mall. The lease increases the square footage of the liquor store from approximately 4,248 square feet to 9,498 square feet. The store would relocate to part of the premises formerly occupied by Snyders and the store is next to the Rainbow Foods grocery store. The landlord is providing a turnkey operation and will invest approximately $300,000 into the new premises. The City is responsible for furniture, fixtures, signage, design, security, communications, etc. The lease is for a ten year period and provides a favorable lease rate of$10.00 a square foot with approximately a 2.5% increase every other year. The lease calls for the new store to be operational by November 1, 2009. If for some reason this date is not met, the store opening would be delayed until January 1, 2010. This would provide for less business interruption during the busy holiday season. ANNOTATED AGENDA August 18,2009 Page 7 In 2005, the City hired the McComb Group, LTD. to conduct a market analysis of the liquor operations. This analysis has provided support to decisions regarding the liquor operations. The purpose of the analysis was to determine if the operations adequately cover the Eden Prairie trade areas and if opening new stores or relocating stores would result in increased profit. The analysis concluded the liquor operations sufficiently cover the Eden Prairie trade area and new stores were not recommended. Specific recommendation related to liquor store #3 included relocating the store to improve access and visibility and to increase size. In response to Council questions we asked Mr. McComb to review the market analysis again and provide an updated opinion on recommendations for the Prairie View store and specifically the proposal the City's is considering. Attached is a memo from Mr. McComb. He will also attend the Council Meeting to answer any Council questions. A summary of the findings from the ten page memo are listed below. The results of our evaluation are summarized below. • The proposed location of Store 3 (Rainbow Store) is superior to the current location. The proposed location next to Rainbow is a natural adjacency for a liquor store. The proposed store will have better visibility, better access, and more convenient parking. The larger store will permit a larger display area similar to Stores 1 (Kowalski Store) and 2 (Cub Foods Store). • Estimated selling area at Store 3 is less than Stores 1 and 2, as well as many of the area's competitive stores. Selling area at the five largest competitors ranges from 4,100 to 9,000 square feet. • Due to its small size, Store 3 has 780 lineal feet of wine display shelving compared to 1,325 feet at Store 2 and 1,702 feet at Store 1. • Store 3's trade area has more households than Store 1, but has lower sales and market share. • Store 3 draws a larger proportion of its sales from nearby employees than Stores 1 and 2. • Liquor sales in 2008 at Stores 1 and 3 are comparable at $834,091 and $883,646, respectively. • Beer sales at Stores 1 and 3 are comparable at $921,490 and $995,244, respectively. • Wine sales at Store 1 were $433,000 higher than Store 3, and wine sales at Store 2 were over$1,000,000 higher. Stores 1 and 2 have larger wine displays. • With a larger wine display, Store 3 will sell more wine and liquor, and possibly more beer. • The proposed annual rent at Store 3 is less than the annual rent at Store 1. • Common area maintenance costs at Store 3 will be slightly less than Store 1. • Property taxes at Store 3 will be higher than Store 1. • Total occupancy costs for Store 3 (with 9,498 square feet) will be less than Store 1 (with 8,002 square feet). ANNOTATED AGENDA August 18,2009 Page 8 • The space size for the proposed Store 3 is larger than needed for a liquor store. The space that is not needed for selling area or storage should be walled off and not used. Increasing wine sales at Store 3 by $400,000 to $500,000 would result in a 14 to 18 percent increase in sales. This should be achievable based on trade area households and household income. MOTION: Move to approve Second Amendment to Prairie View Liquor Store Lease. 2. Agreement with Scott W. Baker Associates Inc. Synopsis: As part of the expansion and relocation of Prairie View liquor operations, the Landlord is providing improvements to the relocation premises in"turnkey" condition which will cost approximately $300,000. The City is required to pay for certain items including the following following: • Store design elements including signage, wall coverings and murals, etc. • Visual display surfaces including shelving, display racks, etc. • Cash wrap • Wine counter • Exterior signage. • Mercantile and service equipment. • Refrigerated display equipment. • Office equipment. • Furnishings. • Communications equipment, wiring and devices. • Electronic safety and security equipment, wiring, and devices. Scott W. Baker Associates, Inc. will coordinate the purchase and installation of these items with the City and the Landlords contractor to ensure an efficient construction process. MOTION: Move to approve Agreement with Scott W. Baker Associates, Inc. C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR D. REPORT OF PARKS AND RECREATION DIRECTOR E. REPORT OF PUBLIC WORKS DIRECTOR F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY ANNOTATED AGENDA August 18,2009 Page 9 XV. OTHER BUSINESS XVI. ADJOURNMENT MOTION: Move to adjourn the City Council meeting. CITY COUNCIL AGENDA DATE: SECTION: Presentations August 18, 2009 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: IV.B. Jay Lotthammer, Director, Contribution for Baseball Field Upgrades Parks and Recreation from the Eden Prairie Baseball Association Motion Move to: Accept the contribution from the Eden Prairie Baseball Association in the amount of$98,222.14 to assist with funding for outfield fencing at two fields at Forest Hills Park, irrigation and fencing at two fields at Staring Lake Park and fencing at two fields at Nesbitt Park. Synopsis The Eden Prairie Baseball Association is contributing $98,222.14 to the City of Eden Prairie to fund upgrades at the following baseball facilities; Forest Hills Park(outfield fencing at two fields), Staring Lake Park(irrigation and fencing at two fields) and Nesbitt Park(fencing at two fields). These upgrades provide a higher level playing experience for the players as well as increasing the overall aesthetics and safety of the fields and parks. Eden Prairie Baseball Association President, Gary Kraemer along with other board members will attend the meeting and present the check to the City Council. Background The Eden Prairie Baseball Association along with other Eden Prairie Athletic Associations have a long history of contributing funding to enhance the quality and playability of the athletic facilities in Eden Prairie. Recently, the Eden Prairie Baseball Association contributed funds to construct the Stadium at Round Lake and recruited advertisers to fund the scoreboard at the field. CITY COUNCIL AGENDA DATE: SECTION: Public Hearing August 18, 2009 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: IV.C. Jay Lotthammer, Director, Miller Park Barrier Free Play Area Donation Parks and Recreation Motion Move to: Accept the donation from the Tom and Kathy Miller Family Foundation in the amount of$10,525.00 to assist with funding for future development of the Miller Park Barrier Free Play Area. Synopsis Mike Garvin, along with family and friends, has continued to recruit funds to be used towards future phases for the Miller Park Barrier Free Play Area. In addition to the $208,020.43 that has been previously contributed, an additional $10,525.00 has been raised towards future phases of the project. Background Eden Prairie resident Mike Garvin approached staff with a pledge to assist with the funding for a Barrier Free Play Area at Miller Park. Mr. Garvin's family has made use of similar play areas while visiting other states. Mr. Garvin and his wife recognized the benefits and positive impacts that a barrier free play area can have for people with all types of abilities. Miller Park is one of three community parks and receives a higher amount of use than neighborhood parks and smaller play structures. Over the past several years, staff has maintained the equipment by replacing parts that were damaged, broke or in an unsafe condition. Many of the replacement parts are no longer available due to the age of the equipment. Funds were budgeted and approved as a part of the Capital Improvement Plan for replacement of portions of the play area. Mr. Garvin and his family have committed funds to add to the amount of work that is able to be performed and enhance the accessibility of the play area. Increased accessibility will certainly be beneficial for children who use wheelchairs, but past experience has shown that accessible surfaces and play components also offer greater access and enjoyment to all users. Previously, Mike Garvin presented the City of Eden Prairie with funds of$134,369.00 and $76,651.43 that were raised through events and fundraising promotions. The initial phase of construction was completed in the spring of 2009 and is currently being used. Other portions of the equipment are due to be replaced in the near future. ITEM NO.: VI.A. UNAPPROVED MINUTES CITY COUNCIL WORKSHOP & OPEN PODIUM TUESDAY,JULY 21, 2009 CITY CENTER 5:00—6:25 PM, HERITAGE ROOM II 6:30—7:00 PM, COUNCIL CHAMBER CITY COUNCIL: Mayor Phil Young, Council Members Brad Aho, Ron Case, Jon Duckstad, and Kathy Nelson CITY STAFF: City Manager Scott Neal, Police Chief Rob Reynolds, Fire Chief George Esbensen, Public Works Director Eugene Dietz, Community Development Director Janet Jeremiah, Parks and Recreation Director Jay Lotthammer, Communications Manager Joyce Lorenz, City Attorney Ric Rosow, and Recorder Lorene McWaters Heritage Room II JOINT MEETING WITH THE EDEN PRAIRIE HISTORICAL SOCIETY A. Adaptive Use Study City Manager Scott Neal reviewed the timeline for the Cummins House use study and discussions. The Reuse Study began in December 2006 and the final report was approved by the Heritage Preservation Commission in July 2007. The City Council accepted the Reuse Study in July 2008. Possible uses for the house identified in the study include hospice, office, residential and horticulture. In late 2008, the Eden Prairie Historical Society approached the City Council about the possibility of leasing the site or entering into a cooperative agreement with the City. At the May 19, 2009, Council meeting it was determined that a lease arrangement similar to the one the City has with Camp Edenwood would not work for the Historical Society at the Cummins House. The Historical Society requested tonight's workshop to present a new proposal to partner with the City on renovation and programming the Cummins House. B. Current Operations and Capital Costs Parks & Recreation Director Jay Lotthammer presented a breakdown of the City's costs for upkeep of the house, which are expected to be just under$15,000 for 2009. C. Current Programming Lotthammer also reviewed current programming at the house, which includes Arts in the Garden, Cummins House Christmas, Heirloom Plants in the Garden, and monthly Historical Society Open Houses. Potential programs include Senior Teas and Watercolor in the Garden art classes. Lotthammer reviewed the site plan that shows how the Pioneer Trail, baseball field and parking location reconstruction projects will impact the site. City Council Workshop Minutes July 21,2009 Page 2 D. Eden Prairie Historical Society Proposal Kathie Case, President of the Historical Society, introduced her fellow board members: Jan Mosman (Vice Presdient), Betsy Adams, Aubrey Hookum, Kim Carlander, Reuel Long, Bob Pemberton and Arlene Marshall. She noted that Jim Clark is also a board member, but was not able to attend the meeting. Mosman distributed articles from the local newspaper about history-related activities and letters from community members supporting the Cummins House. Case said both Boy Scout and Girl Scout troops have donated time to upkeep of the site and participate in events at the house. She said the house is also used for community theatre productions and the peony garden is a local attraction. Case said Mrs. Grill offered the home, which was built in 1879, to the City in the 1970s for use as a park. The site was added to the National Historic Registry in 1979. Volunteers have help restore much of the first floor of the house. Case said the Historical Society is proposing the Cummins House be used as a multi-purpose community space. She said the Historical Society is willing to help raise grants to pay for restoration of the house. She said the Historical Society has a donor who is willing to match grants, but there is a deadline by which the donor needs to know if an agreement with the EPHS will be approved by the City. Case said up to $22 million in Legacy Grant grant funds will become available for projects like the Cummins House beginning in September. She said the EPHS needs to know very soon whether or not the City supports their proposal. The Historical Society has asked the Eden Prairie Foundation to act as their financial agent. Eden Prairie Foundation President Nancy Tyra-Lukens said the foundation does not meet in the summer, so they have not discussed the proposal yet. However, she said the Foundation has supported the Historical Society and the Cummins House in the past and she expects they will continue to do so. She said the house would be an ideal meeting place for the Foundation Board. Case said the EPHS does not believe in mothballing historic buildings. She said they envision the Cummins House serving as a community meeting space, a possible office space for the Eden Prairie Foundation and other non-profit organizations, and a venue for expanded historic and recreational programming. She said the City could also use it as a rental space for weddings and other events. Case said the Historical Society is willing to coordinate restoration of the house and oversee its use. Restoration projects the Eden Prairie Historical Society would apply grant money toward include: • Extending electrical service to the second floor • Adding sprinklers tthe building • Enhancing accessibility City Council Workshop Minutes July 21,2009 Page 3 • Upgrading the flooring • Replastering several rooms Mosman said the home itself is very well built and most proposed improvements are largely cosmetic. E. Discussion Mayor Young said he is unclear exactly what the Historical Society is asking for asked who would be in charge of the site under their proposal. Case said the Historical Society is proposing creation of a task force that would include City staff members, Historical Society members, a Heritage Preservation Commission member, and interested citizens. The task force would apply for grants, oversee restoration and coordinate programming. Young noted that this is not one of the uses recommended in the Reuse Study, but he does not have a problem with that. Betsy Adams, the Heritage Preservation Commission Representative on the Historical Society Board, said the Heritage Preservation Commission has never endorsed sale of the house. She said she considers the Reuse Study a safeguard that outlines acceptable uses in the event the house is sold or leased at some future time. She said the Historical Society seeks to add to what the City currently does at the house. Mayor Young asked if the Historical Society is interested in buying the property. Case said they are not interested in buying it. She said Historical Society bylaws would not permit it. Mosman said the Historical Society needs the City as a partner in order to obtain grants. She said the Historical Society has a donor who is willing to provide matching funds under certain circumstances. Case said they need to begin getting estimates very soon in order to apply for Legacy Grant funds. She said the Historical Society is willing to clean the home and help maintain the garden. Council Member Aho asked who would manage the renovation projects. Case said the Historical Society would manage the work in conjunction with the task force. Council Member Nelson asked if the new parking lot would be adequate. Neal said he believes it will be sufficient. Council Member Case said for 33 years, City Councils have voted to buy, preserve and support the Cummins House. He said the Historical Society Proposal shows a way to keep the house open without burdening residents. He said the City needs a group like the Historical Society to help leverage grants and donations. Young said he would like to see the Historical Society achieve its goals without tying up the time of two department directors and a facilities manager. He said he favors ceding more control to the task force, rather than less. City Council Workshop Minutes July 21,2009 Page 4 Mosman said City staff would not actually be members of the task force, but would be kept inform of activities. She said she has started drafting an agreement and would like to work with the City on finalizing it. Nelson asked if there is some action the Council can take tonight to show general support of the Historical Society proposal so they can proceed with grant applications that have a tight deadline. Mayor Young said he feels it is more important to do this right rather than quickly. Neal said the City has agreements with a variety of community organizations that could be used to help create an agreement with the Historical Society. Chamber II. OPEN PODIUM A. Nancy Arieta 1. Mulching Trees -Arieta suggested the City distribute information on proper mulching of trees. 2. Greenery—Arieta said she likes the look of the tall grasses and vetch, and encouraged the City to let more areas grow instead of mowing them. 3. Windsor Plaza—Arieta said the building is an eyesore and should not have been approved by the Planning Commission and City Council. 4. Channel 16 Programming—Arieta complimented the Life on the Prairie show on Channel 16. 5. LRT Planning—Arieta said she is surprised a station planning meeting is scheduled when the final alignment has not yet been determined. III. ADJOURNMENT ITEM NO.: VI.B. UNAPPROVED MINUTES EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY,JULY 21, 2009 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Phil Young, Council Members Brad Aho, Ron Case, Jon Duckstad and Kathy Nelson CITY STAFF: City Manager Scott Neal, Parks & Recreation Director Jay Lotthammer, Public Works Director Eugene Dietz, Community Development Director Janet Jeremiah, City Attorney Ric Rosow and Council Recorder Jan Curielli I. ROLL CALL/CALL THE MEETING TO ORDER Mayor Young called the meeting to order at 7:00 PM. All Council Members were present. II. COLOR GUARD/PLEDGE OF ALLEGIANCE III. OPEN PODIUM INVITATION IV. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Nelson added Item XIV.A.2. Case added Item XIV.A.3.Neal added announcements under Item XIV.B. and asked the Council to meet in a brief closed session during Item XIV.H. to consider a settlement offer for a lawsuit. MOTION: Aho moved, seconded by Case, to approve the agenda as amended. Motion carried 5-0. V. PROCLAMATIONS/PRESENTATIONS A. NINE MILE CREEK WATERSHED DISTRICT Corrine Lynch, a Manager on the Nine Mile Creek Watershed District Board, said they are celebrating their 50th Anniversary this year. They had an area historian and author prepare a special book in honor of the anniversary. She distributed copies of the book to the Council Members, noting the book contains a map, the history of the area, and a description of some of the environmental efforts for natural resources in the area. She said they plan to distribute these to area schools and they can be purchased from the Watershed District for $10.00. Nelson said she has driven by Anderson Lakes and noticed it seems to be filling up very slowly. She was concerned about the large amount of weed and grasses in the shallower ends of the lake and asked if there are any plans to mow down any of that growth so trees don't start to grow there in the fertile soil. Ms Lynch said she will take Council Member Nelson's concern back to the board. She noted it has been a very unusual drought and they will address those issues if the lake does not fill up CITY COUNCIL MINUTES July 21,2009 Page 2 as expected. She said the University of Minnesota is doing a study on curly leaf pond weed in the lakes and will write a report on that because they were concerned about that weed more than others. B. EDEN PRAIRIE HISTORICAL SOCIETY Jan Mosman, representing the Eden Prairie Historical Society, said she wanted to follow up on their workshop with the Council earlier this evening. She wanted to clarify that the Historical Society is not a service organization like PROP or the Eden Prairie Foundation. The Historical Society is actually listed with the City as a body of the City and is recognized as such, so it operates in a slightly different manner than the service groups. Ms Mosman said Mayor Young raised a question about the Historical Society wanting to be the sole occupant of the building. She said they are not expecting to have sole use of the house but do want to confirm that they would be the responsible party and the primary occupant. She said they would like to ask if the Historical Society could continue the draft agreement that was started with City staff and bring it back to the August Council meeting. Any questions the Council may have prior to that time should go to Mr. Neal so those questions can be addressed ahead of the August meeting. She said they also would like permission to get bids in preparation for work such as the sprinkler system in order to pursue some of the grant money in September after the agreement is approved. Young said the City Council would like to move forward with the Historical Society. He noted many of the issues discussed during the workshop did not necessarily have a right answer, but the Council did want to articulate the importance of both the Historical Society and the City having a clear understanding of what will be done and the obligations. He thought it was a good goal to try to bring something back to the August meeting and it was appropriate to move that forward. In the interim he thought it was fair for the Historical Society to get cost estimates for capital improvements before a formal agreement is reached, noting they need to be aware of the bidding process required by the City. Neal said it depends on the cost value of the project but we can't excuse ourselves from the bidding process by transferring the process to a third party. The Historical Society and the City will need to work together to make the scenarios work. Young said the City Council and staff understand the Historical Society is different in nature than PROP or other organizations but we do need to have a clearly defined agreement. Nelson asked if we could say the sense of the Council is for them to meet and bring a more concrete agreement to the August meeting. There was no disagreement with that from the other Council Members. C. ART CENTER DONATION FROM LION'S CLUB Lotthammer said we have received another donation from the Lions Club, and this one is to support the Art Center in the amount of$1,522.00 for the funding of capital equipment. CITY COUNCIL MINUTES July 21,2009 Page 3 Young thanked the Lions Club for the donation and noted they are a great organization in our City. He thought the monument at Round Lake Park looks phenomenal. MOTION: Duckstad moved, seconded by Nelson, to accept the donation from the Eden Prairie Lions Club in the amount of$1,522 to assist with funding for equipment at the Art Center. Motion carried 5-0. D. HEARTSAFE EDEN PRAIRIE RECOGNITION Chief Koering, Assistant Fire Chief and coordinator for the Heartsafe Eden Prairie initiative, said there are over 60 AED's placed in businesses within the City since the inception of the program. He said the devices will create positive results for victims of sudden cardiac arrest. He introduced three affiliates of Lifetime Fitness who responded to a recent medical situation at the Baker Road facility and who, with the help of an AED, saved the life of Ms Connie Schilling. Ms Schilling shared her experience and said she wanted to let everyone know how important it is to have one of the AED devices on site at places where a large number of people gather. She thanked the three individuals for their response. Mayor Young and Chief Koering gave pins and plaques as awards of valor to the three responders. Chief Koering said he also wanted to recognize Lifetime Fitness by giving them a plaque to hang in their facility and to encourage others to take the same level of initiative to protect their customers and employees. Young thanked them for coming and sharing their story. Case noted Eden Prairie is one of the first communities to have an AED in every school and every public building in the City. VI. MINUTES A. CITY COUNCIL MEETING HELD TUESDAY,JUNE 16, 2009 MOTION: Duckstad moved, seconded by Aho, to approve the minutes of the City Council Meeting held Tuesday, June 16, 2009, as published. Motion carried 5-0. VII. REPORTS OF ADVISORY BOARDS & COMMISSIONS A. BUDGET ADVISORY COMMISSION 2009 WORK PLAN Annette Agner, a member of the Budget Advisory Commission(BAC), gave a PowerPoint overview of the purpose, focus and work plan for the BAC. She said they formed a subcommittee to review the purpose of the BAC and the expectations of the BAC and the City Council because they wanted to focus their efforts and have some clarity and definition for the commission. The subcommittee reviewed the strategy, work plan and ordinance for the commission and reaffirmed the role of the commission as an advisory body to the City Council. They plan to focus on bigger areas of the budget which would include all projects valued at $200,000 or more and new projects that are out of the budget cycle. They defined the methodology to use to determine when a comprehensive analysis was needed, CITY COUNCIL MINUTES July 21,2009 Page 4 deciding it would take a majority of the BAC to determine if it was an item that required comprehensive analysis. If a comprehensive analysis is required, they would either request staff to present a detailed report on the item to the BAC at their next meeting or form a sub-committee of the BAC if that was needed to provide more focus on the item. After the BAC has discussed information presented by staff or the subcommittee, they would vote on a recommendation to the City Council. A majority vote of the BAC would be required to forward the recommendation to the Council. She noted the 2009 work plan for the BAC has been provided in the Council packets. Case thanked Ms Agner for her presentation and for the time put into the material presented. He said after reviewing the information presented,he agreed the group ought to review everything the City does and how we do it to try to make government more efficient and to conserve resources. His concern is when the BAC appears to get into City Council prerogatives. He thought the group's looking at a building or real estate, some of which may be programmatic, is touching too close to the Council's decision making prerogative. He said the issue of funds and fund balances varies from one city to another and that also gets into a Council prerogative. He noted he has seen the power of the BAC getting out in front in the newspaper on issues that are philosophical and which should have remained at the Council level. Ms Agner said the commission is very supportive of the concept that they are not a decision-making body. Nelson said she hoped the BAC's review of the City staff work plan doesn't indicate the BAC would have any authorization to comment on what that work plan should be. She was not sure the BAC has much of a place in reviewing the bidding process for contractors because that is set up by the state and it has to be a competitive process. Ms Agner said the BAC has frequently asked how they could be the most helpful, and they do want to work in concert as a group. Duckstad also thanked Ms Agner for the presentation and noted he thought the BAC has done an extremely good, conscientious and valuable job for us since it was put together. He thought it was a treasure for the City to have seven people look at the financial figures and come up with ideas. He thought the mission statement makes it amply clear the BAC is an advisory commission, and he welcomes the good ideas they bring. Aho thanked the BAC for their good work in evaluating the volume of data involved. He encouraged the BAC to continue the work and noted the Council appreciates it. Young thought it is a good work plan and he supports it. He noted all City commissions deal with issues before they get to the City Council and so we have to deal with that situation. Neal said he wanted to assure the Council he had the ability to provide feedback and input on the BAC's goals and work plan. He said they have discussed the BAC becoming more of an accountability body. They would look at a policy set by the CITY COUNCIL MINUTES July 21,2009 Page 5 City Council and then determine if staff is following that policy. If they feel there are some holes in the policies, they could make a recommendation. They would make sure the Council's established policies are being implemented in the community. MOTION: Aho moved, seconded by Duckstad, to approve the Budget Advisory Commission 2009 Work Plan. Motion carried 5-0. VIII. CONSENT CALENDAR A. CLERK'S LICENSE LIST B. APPROVE SECOND READING OF ORDINANCE NO. 6-2009 AMENDING CITY CODE SECTION 9.07 RELATING TO DANGEROUS DOGS C. PARTIAL RELEASE OF DEVELOPMENT AGREEMENT FOR EDEN BLUFFS D. ADOPT RESOLUTION NO. 2009-37 RELATING TO ISSUANCE OF GENERAL OBLIGATION EQUIPMENT CERTIFICATES OF INDEBTEDNESS, SERIES 2009B FOR$2,455,000 E. ADOPT RESOLUTION NO. 2009-44 AWARDING CONSTRUCTION CONTRACT FOR FLYING CLOUD DRIVE TRAIL PROJECT TO NORTHWEST ASPHALT,INC. F. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH HTPO FOR CONSTRUCTION PHASE SERVICES FOR FLYING CLOUD DRIVE TRAIL PROJECT G. ADOPT RESOLUTION NO. 2009-45 APPROVING COST PARTICIPATION AGREEMENT WITH HENNEPIN COUNTY FOR THE FLYING CLOUD DRIVE TRAIL IMPROVEMENTS H. APPROVE SERVICE AGREEMENT WITH MOTOROLA FOR ONGOING SERVICE OF THE 911 DISPATCH CONSOLE SYSTEM I. AWARD CONTRACT FOR 2009 BUILDING ENVELOPE PROJECTS TO RESTORATION SYSTEMS, INC. J. APPROVE SECOND AMENDMENT TO THE PRAIRIE VIEW LIQUOR STORE LEASE K. APPROVE AGREEMENT WITH SCOTT W. BAKER ASSOCIATES FOR PRAIRIE VIEW LIQUOR STORE RELOCATION AND EXPANSION L. AWARD BID FOR CUMMINS GRILL/STARING EAST PARKING RECONSTRUCTION PROJECT TO DOBOSZENSKI & SONS, INC. FOR CITY COUNCIL MINUTES July 21,2009 Page 6 $375,496.02 FOR THE BASE BID PLUS $21,880 FOR ALTERNATE #1 AND $33,124 FOR ALTERNATE #2 M. APPROVE CONTRACT WITH HTPO FOR CONSTRUCTION ADMINISTRATION OF CUMMINS GRILL BALLFIELDS & PARKING IMPROVEMENTS N. AWARD OF CONTRACT FOR PLAYGROUND EQUIPMENT AT HOMEWARD HILLS PARK TO WEBBER RECREATIONAL DESIGN, INC. O. DIRECT STAFF TO NOT WAIVE MONETARY LIMITS ON MUNICIPAL TORT LIABILITY ESTABLISHED BY MINNESOTA STATUTES 466.04 Young said he wanted to discuss Items J and K. MOTION: Duckstad moved, seconded by Aho, to approve Items A-I and L-O on the Consent Calendar. Motion carried 5-0. Young asked staff to discuss where we are and what the plan is in regard to relocating the liquor store by Rainbow. He was concerned that we are more than doubling the square footage in that store. Neal said we did an expansion and remodel of the space for the store on Den Road in 2006 which resulted in increased sales at that store. We had a smaller store in the Prairie Village Mall and acquired a more visible location there at the former Snyder store. We implemented a larger store there and that resulted in greater sales. He said staff has been looking for a solution for the Prairie View store for quite some time and the lease expires in September. Staff has been negotiating with the owner of the mall to look for a new location. The Prairie View location has been the least productive store of the three, and we wanted to improve it to be similar to the other two stores. This proposal would increase the size of the store from 4200 to 9400 square feet, and would provide a decrease in cost from $16.50 per square foot to $10.00. It is a bigger space than we really sought to get,but it is a very important location in the old Snyder Drug building. We believe we will see a similar increase in sales at this location. He noted the agreements are always negotiated subject to City Council approval, so that is why the item is on the Council agenda tonight. Young said he was concerned about the size and also that we are a monopoly seller of liquor in this town. He didn't believe that more people actually found the liquor store in Prairie View Mall after it was moved. He noted the recommendation made a couple of years ago was to reduce the size at Prairie View, which we did. Now we are proposing to more than double it and he thought we would be paying for space we don't need. Duckstad said he agreed and he was not happy with the fact that Eden Prairie is involved in a free enterprise project. Our job is to provide core government services and he was not in favor of the expansion. CITY COUNCIL MINUTES July 21,2009 Page 7 Case thought the issue being discussed is whether it is justified to expand the store. He said we have been dealing with the philosophical question for 30 years and have explored it in depth. We realize close to $1,000,000 in net savings to our taxpayers and letting that go would require a 3% instant tax increase just to stay even. He agreed the current location is somewhat hidden and asked how many years the lease is for.Neal said it is ten years. Case said he would be in favor of this proposal based on our track record at the other stores. Young asked what data we have to correlate an increase in sales to the change in location. Neal said there is some data that correlates and we believe the changes made to the locations have something to do with the increased sales. Young thought that means it is not a provable point. He said his concern is about the consistency in the recommendations we are getting for the Prairie View store, and he was not sure we need twice the square footage at that location. Neal said we did not begin these negotiations with the goal of getting 9400 square feet. We wanted something less than that; however, there is a trade off for this spot in this mall. There is not a reasonable way to segment the space to give us the 7500 square feet we originally wanted. This kind of lease rate is at almost rock bottom levels, and this is also a good time to bid construction work to renovate the building. We are not able to break up the building into a smaller space and are working on a plan that will take advantage of all the space. Young said he understood we need a new lease, but he would like to know what it would cost at the current location to re-up the lease. Neal said he did not believe we have that option at this time. Sue Kotchevar said they would not give the current space to us at this rate. She said the current store at Prairie View is too crowded and we were looking to expand it a bit. Young asked if we will be paying more than at the Snyder location if we stay at the current space with a new lease. Kotchevar said it would be very challenging to bring the current location price down to $10.00 through the negotiation process. Frank Sherwood, Colliers International, said he has been advising the City on this transaction. He said this is a very good time to be a tenant looking for space. This particular lease proposal is significantly below market conditions, which typically range from $16.50 to $28.00 per square foot. The landlord is anxious to make it work for the City because the space is not divisible, so they have given a rate significantly below market as an enticement to the City. The City is getting the benefit of a phenomenal opportunity in the market place. Young asked if the fact the landlord is in such dire straits would not benefit us in renegotiating the current space. Mr. Sherwood said it would not be at $10.00 per square foot. Young asked if we know what the rate would be on the current space. Mr. Sherwood said we don't have that on file. Young said he would like to know that when we compare one space to another. Mr. Sherwood said he believed they asked the landlord for a renewal in the current space, and they then came back with the deal on the larger space. CITY COUNCIL MINUTES July 21,2009 Page 8 Young asked when the Council needs to act on this item. Neal said the current lease expires September 30. Mr. Sherwood said we need to make a decision in order to get it built out by Thanksgiving. Young thought it would be a useful piece of information to know the cost to stay in the current space. Duckstad asked what period of time the favorable price for the new lease would cover. Mr. Sherwood said it is ten years. Duckstad said it may not be a good deal to negotiate this since at the end of the ten years the landlord could raise the price and we would have already refurbished the space. He said we need more information and he was not in favor of the expansion. Kotchevar said we would probably spend some money upgrading the store at the current location. She noted we are paying $14.00 per square foot at the Prairie Village store. Nelson said$10.00 per square foot is extremely attractive. She asked how much sales went up at the Den Road and Prairie Village Mall stores. Kotchevar said sales are up 14% for the first six months at Prairie Village and 6-7% for the first year at Den Road. Nelson asked how we would justify the 34% increase in rent. Kotchevar said we will cover the increased costs in the first two years. Nelson said her first goal is to keep taxes down, and revenue from liquor stores is one of the best deals for taxpayers. She asked why we suggested downsizing at the Prairie View store a few years ago. Neal said we suffered a decrease in sales in that location just a year before we had an option to return some of the space. He thought in retrospect that was not the best decision. Nelson said she has heard people say they really like the Den Road store and the extra space at Prairie View would allow us to do some of the same things. She asked if we have any idea what we might do with the extra space. Neal said there are some early ideas, and this store has an orientation towards beer, so there is a great opportunity to do something with beer sales. There is the possibility of using the extra space as warehouse space that would allow some greater purchasing leverage for the other stores as well. Nelson asked if there are any plans to do anything to bring more customers in such as having classes. Kotchevar said we started a wine club and have had various educational opportunities, so we would continue that. Nelson said we have had successful opportunities for education, and she thought this is an excellent location and the price seems to be good even though it is more space than we wanted. She asked if the owner will be putting some money into the build-out as well. Kotchevar said they will. Nelson said she thought it is worth doing and she didn't think we can easily stay where we are. Aho asked about the difference in size between the current stores at Den Road and Prairie Village versus the 9400 square feet proposed here. Kotchevar said Prairie Village is about 8000 square feet and Den Road is a little under 8000. Aho asked what the difference would be in terms of overhead cost. Kotchevar said the rent at Prairie Village and at Prairie View would be the same, and there is no rent at Den Road because we own the building. Aho asked what we are looking at as possible CITY COUNCIL MINUTES July 21,2009 Page 9 options at the end of the ten year lease. Mr. Sherwood said during the ten years there would be increases of 25 cents every other year, so the final rate would be $11.00 at the end of the lease. Kotchevar said ten years is a long time and at that point we would be looking at upgrading and remodeling the store so we could also make other decisions then. Duckstad asked if anyone actually attempted to renegotiate the current lease with the current owner. Kotchevar said we wanted to be able to add more space. Duckstad asked if that meant no one asked the landlord about renegotiation. Neal said we proposed that to the mall owner but they did not answer that proposal and came back with the proposal we have tonight. Duckstad asked how much the remodeling at the current location would cost. Kotchevar said we don't have a firm estimate but at the proposed new store the landlord would pay about$300,000 and the City would spend about the same. Duckstad asked if the cost would be minimal to stay where we are. Kotchevar said we haven't looked into that. Case said this is an enterprise fund so all the money to refurbish or to pay the lease comes out of that fund which is completely separate from the general operating fund. He thought it was a little contradictory to talk about getting rid of our liquor stores which would erase $1,000,000 in revenue to the City and then question giving the stores a chance to actualize more revenue. We are getting an incredible deal that we need to act on. It is our enterprise fund and it provides money that our taxpayers don't have to pay. Staff says this could increase the money coming in to taxpayers so we need to move on this. Young said if we are using net liquor store dollars to offset costs to the CIP fund that does create an obligation taxpayers would have to fill, so we need to be prudent in spending liquor store dollars. His initial concern tonight was that it is too much space,but he was more concerned about the City Council being asked to make a decision with incomplete information. He said it was incumbent on staff to have that information for us so the Council can compare it to see if it is a truly good deal. He asked what the drop dead deadline is for making a decision on either space. Neal said the current lease expires at the end of September so the drop dead date would be the next City Council meeting on August 21. Young asked if there is sufficient time remaining to get the build out completed if we go back to the landlord to get the information we need to know. Neal said the build-out could not be accomplished by the deadline we hoped for. Young asked if there is any reason to believe the landlord wouldn't work with us for holdover rent so we could keep the operation open. Neal thought there was a good chance he would work with us. Young said he would like to know what it would cost if we stay at the current location before making a decision on this. Rosow said the amendment we negotiated says if we cannot get in by November 1, the date would be pushed back to January. We would have to go back to them for information but also to say we don't want it until January and want to hold over at the current location. CITY COUNCIL MINUTES July 21,2009 Page 10 Aho said he would appreciate more data on what we expect the costs to be to finalize the build-out if we make the move. Kotchevar said we expect our costs would be $300,000 plus another$100,000 for a new beer cooler. Nelson said she understood from the discussion that we are talking about the same rent as Prairie Village, and she had no problem with the build out at that location. We are now talking about having a problem with the same money for a similar build out and she was not sure that was reasonable. There is definitely a reason to be in there for one of the biggest seasons for getting funds. Young was uncertain about the change we made at Prairie Village and we are now talking about adding a lot of space at Prairie View. He had some reservations at the time about moving down at Prairie Village and he now feels that was a mistake. He wanted to be able to compare what it would cost to stay in the current space as opposed to the proposed Snyder's location. Nelson asked if this is important enough to have a second meeting in August. Neal said we have traditionally had National Night To Unite (formerly National Night Out) on the first Tuesday of August. We don't have a Council meeting on the calendar for that night but we could add that back and notice it out. Nelson said she has no problem with having a short meeting in connection with the National Night To Unite event. Neal said staff will follow up with some of the questions and if there is enough time to get answers and notice a short meeting that night we will try to put it together. IX. PUBLIC HEARINGS/MEETINGS A. VACATION OF DRAINAGE AND UTILITY EASTMENTS OVER PORTION OF GARRISON FOREST SECOND ADDITION (Resolution No. 2009-46) Neal said official notice of this public hearing was published in the July 2, 2009, Eden Prairie News and sent to three property owners. The property owners have requested the vacation of a portion of the underlying drainage and utility easements dedicated with the plat of Garrison Forest Second Addition to correct an easement encroachment of their deck. Dietz noted there is a revision to the item printed on goldenrod paper that includes a small correction made in the item description and in the title of the resolution. There were no comments from the audience. MOTION: Case moved, seconded by Duckstad, to close the public hearing, and to adopt Resolution No. 2009-46 vacating that certain drainage and utility easement lying 5 feet on each side of, adjacent to and parallel with the common line between Lot 2, Block 4 and Lot 3, Block 4, Garrison Forest Second Addition; except that part thereof lying southerly of a line drawn parallel to, and 5 feet northerly from the southerly line of said lots. Motion carried 5-0. CITY COUNCIL MINUTES July 21,2009 Page 11 B. FIRST READING OF ORDINANCE AMENDING CITY CODE SECTION 11.51 RELATING TO STANDARDS FOR PROTECTION OF WETLANDS Neal said official notice of this public hearing was published in the July 2, 2009, Eden Prairie News. City Code Section 11.51 Sections A and B are being amended to consolidate the requirements for completing a wetland delineation, wetland determination and/or no-loss determination onto an application form that is to be completed and submitted to the City for approval. This will provide the City and the applicant an easy-to-use tool to ensure that all the various requirements of the City Code and Wetland Conservation Act are followed for projects that involve wetland conditions. The Planning Commission reviewed the City Code Amendment on June 8, 2009, and it was approved with a vote of 6-0. Dietz said essentially the code is being amended to require the use of an application form. There were no comments from the audience. MOTION: Aho moved, seconded by Nelson, to close the Public Hearing and to approve first reading of an ordinance amending City Code Section 11.51, Standards for Protection of Wetlands. Motion carried 5-0. X. PAYMENT OF CLAIMS MOTION: Duckstad moved, seconded by Nelson, to approve the Payment of Claims as submitted. Motion was approved on a roll call vote,with Aho, Case,Duckstad,Nelson and Young voting "aye." XI. ORDINANCES AND RESOLUTIONS XII. PETITIONS, REQUESTS AND COMMUNICATIONS A. REQUEST FOR ADDITIONAL GRAVE MARKER AT PLEASANT HILL CEMETERY Neal said City staff has received a request from Ms. Judy Clark and Mr. Bruce Clark to add a second marker to a gravesite occupied by Thomas and Pansy Clark and the cremated remains of Thomas and Pansy's grandson, Thomas Clark. Currently, the gravesite has a marker that takes up the allotted space allowed by cemetery rules. An additional marker has been made for Thomas Clark and it is their request that the marker be placed on the grave. The current regulations allow only one marker per site. He said the City Council is the authority to modify or make exceptions to the cemetery rules. The current rules and regulations were recently reviewed by the Cemetery Task Force and reviewed and approved by the City Council. These types of requests have been brought forward in the past, but on an infrequent basis. He noted the request was reviewed at staff level and does not create any maintenance hardships for staff. CITY COUNCIL MINUTES July 21,2009 Page 12 Case said it seemed there may be a need to have staff look to make sure our regulations are consistent. He was in favor of approving the request tonight, but he thought it should be sent back to staff to look at the issue of markers for burials. Duckstad said he would like to know if this is routinely requested. Lotthammer said staff went back through the file to look at previous requests and we could only find a couple that occurred several years apart. Our rule says we can have no more than one unless prior approval is given. We look at the configuration and size, and in this case it is not a double monument. We might recommend denial if it were a separate monument or a replacement. He thought it would be good to continue to require prior approval, but he was not sure there would have to be a Council review or if it could be a staff decision instead. Duckstad asked what staff is recommending. Lotthammer said we recommend in this case that we allow the second marker. MOTION: Nelson moved, seconded by Duckstad, to approve the request by Ms. Judy Clark and Mr. Bruce Clark as an exception to current rules to allow a second maker to be placed on the gravesite occupied by Thomas and Pansy Clark and their grandson Thomas Clark. Motion carried 5-0. XIII. APPOINTMENTS XIV. REPORTS A. REPORTS OF COUNCIL MEMBERS 1. Council Member Duckstad Duckstad said at the last meeting Mr. Neal presented a report relating to CIP projects for 2009. After reading the report he had questions on a couple of the projects. Referring to the information he provided on goldenrod paper, he said there are two projects involving improvements to Preserve Boulevard,both of which are budgeted at $1,750,000 and both of which are delayed to 2010. He asked if both projects would come out of the CIP budget. Dietz said both of those projects are municipal state aid projects and that would be the source of funding. Duckstad then asked if the Cedar Hills Park Development Phase 1 project has been completed. Lotthammer said this entails property that has been contemplated with the Airport Commission to build a future neighborhood park as part of the Memorandum of Understanding of 2002. In order to obtain that property we need to absolve them of some of their assessments which will entail a transfer from the Park Improvements Fund to the Public Works Department. We have not made this transfer and we have delayed the project into the future because of the lack of cash flow into cash park fees. Duckstad asked about Phase 2 of that project. Lotthammer said that will occur some years from now. CITY COUNCIL MINUTES July 21,2009 Page 13 2. Council Member Nelson Nelson said we have been getting a lot of reports printed in color. She would prefer to get the reports emailed to her. She didn't see any reason to get the more expensive printed reports when we could access them online. That would help us to go more paperless and save costs of printing. Young asked if we put those on the website. Neal said we do some of them but not all, so we need to get everyone into that habit. 3. Council Member Case Case said at a recent Council meeting he reported meeting with Jeff Hamel at a resident's home. He recently had a meeting with Jeff Nawrocki, the Flying Cloud Airport Manager, who gave them a tour of the tower and a drive around the airport expansion zone on Spring Road. He said several points came up that would fit well with the Flying Cloud Airport Commission(FCAC) and possibly the Zoning Board. He would like to see them review the FAA-mandated relocation of the tower and request the City be part of the decision when it is relocated. He also thought it was doable to screen the new approach lights on the south side near Hennepin Village, which is something that really concerned the Homeowners Association president from that section. When they were driving up along the new expansion on the western end, it became apparent that 10-15 of additional berm would take the sight line view back from Hennepin Village. He said a lot of residents along the Hennepin Village side are concerned about the deforestation and replanting of the berm. There are now six associations within Hennepin Village that have officers, and he suggested since they are one of the neighborhoods that is most impacted by the airport expansion, the FCAC might facilitate a meeting with the homeowners and MAC. He wanted to get the idea to the FCAC. Young said staff could pass that thought on to the FCAC. B. REPORTS OF CITY MANAGER Neal said he has several announcements in addition to the City Attorney Selection Process item. He said August 4 is Eden Prairie National Night to Unite, and we typically take Council Members to the neighborhood events that night. The consensus of the Council Members was to do that again for this year's event. Neal said the original budget plan called for setting the primary levy at the Council meeting on September 15, but we have to have it completed on or before that date so we will need to restructure our budget process a little. We had planned for the meeting on September 1 to be a workshop, but we may need to change that to make a preliminary decision on September 1. Neal said the bond sale approved on the Consent Calendar tonight for$2.4 million in new debt financing received a rate of 1.8%which is extraordinarily low. It CITY COUNCIL MINUTES July 21,2009 Page 14 reflects the market but also the work done by the City Council and staff and the investments our residents and businesses make. Eden Prairie has a pretty strong local economy and that makes a difference in the interest rates we pay for financing. 1. City Attorney Selection Process Neal said he reviewed the process at the June meeting and we have now added dates to the proposed City Attorney selection process. Staff is asking for approval of the proposal tonight and, if it is approved, will begin implementing it this week. Young said he thought the process looks fine except he was not sure 30 days up front is enough time to send the word out and receive responses. He thought we should lengthen the initial period to 45 or 60 days. Duckstad said he would prefer 60 days. Neal said we could do that, but it would cramp the other end of the cycle after we make the award if there is a transition from one firm to another. Nelson said she had requested we get some information from the prosecutors' side about their past history with regard to outcomes. She was not sure if that was covered in this material. Neal said he recalled that conversation and we have talked to the prosecutor about that. We are working to develop a metric to use to judge performance, but that has been difficult to identify and is not in the material tonight. We will continue to work on that and try to develop something to bring to the Council. Case asked if that would be the number of prosecutions brought or successfully prosecuted. Nelson said it would be successfully prosecuted as there seems to be a difference in background and also a difference in how many cases they have completed successfully. Case said he recalled last time we discussed it this was a philosophical issue. He said it costs more to prosecute more so he didn't know that the raw number gets us what we want to know. Nelson said she wanted to know if they generally tend to prosecute, and not only how many they bring but also how successfully they are prosecuted, so both numbers are part of the picture. Neal said there is an area in the RFP form where we look at prosecutorial activities, and those numbers are not filled in on tonight's material. We are gathering that data and will have something by the end of the week. Nelson said it is okay if it is still being looked at. Neal said we can back up the initial consideration process 30 days and make it fit with the schedule. MOTION: Case moved, seconded by Aho, to approve the attached timeline,per Council discussion tonight, and the Request for Proposal for City Attorney and Prosecuting Attorney Services. Motion carried 5-0. CITY COUNCIL MINUTES July 21,2009 Page 15 C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR D. REPORT OF PARKS AND RECREATION DIRECTOR E. REPORT OF PUBLIC WORKS DIRECTOR F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY Rosow said we have been involved in mediation in the case of CM Construction versus the City of Eden Prairie, and he has recommendations relating to settlement that need confidential attorney client discussion in a closed session. He said the Council could withdraw to a closed session and come back into open session after the discussion. MOTION: Nelson moved, seconded by Case, to move to closed session. Motion carried 5-0. The Council moved to closed session at 8:55 PM and returned at 9:10 PM. Rosow said we have a proposed settlement to settle the dispute for the payment of $165,000. MOTION: Duckstad moved, seconded by Case, to approve the settlement with CM Construction in the amount of$165,000. Motion carried 5-0. XV. OTHER BUSINESS XVI. ADJOURNMENT MOTION: Duckstad moved, seconded by Nelson, to adjourn the meeting. Motion carried 5-0. Mayor Young adjourned the meeting at 9:11 PM. CITY COUNCIL AGENDA DATE: August 18, 2009 SECTION: Consent Agenda DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: VIII.A. Community Development/Planning Menards Janet Jeremiah/Regina Herron Requested Action Move to: • Approve 2nd Reading of the Ordinance for Planned Unit Development District Review with waivers on 15.72 acres and Zoning District Amendment in the Commercial Regional Service Zoning District on 15.72 acres; and • Adopt the Resolution for Site Plan Review on 15.72 acres; and • Approve the Development Agreement for Menards; and • Approve and Authorize Issuance of a Grading Permit for Menards subject to release by the City Engineer upon determination that the final contract documents conform to plans stamp dated October 14, 2008, as approved by the City Council. Synopsis The is final approval plans and development agreement for a new 2 story Menards retail building of 210,943 square feet and construction of a new warehouse building of 42,352 square feet. The exterior of the existing 23,760 square foot strip retail building will be remodeled. Background Information The 120-Day Review Period Expires on December 31 2009. Attachments 1. Ordinance for PUD District Review 2. Summary Ordinance 3. Resolution for Site Plan Review 4. Development Agreement MENARDS CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA ORDINANCE NO. -2009-PUD- -2009 AN ORDINANCE OF THE CITY OF EDEN PRAIRIE, MINNESOTA,AMENDING CERTAIN LAND WITHIN A ZONING DISTRICT,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 amended within the Commercial Regional Service Zoning District_-2009-PUD-_-2009 (hereinafter "PUD-_- 2009-C-REG-SER). Section 3. The City Council hereby makes the following findings: A. PUD- -2009- C-REG-SER is not in conflict with the goals of the Comprehensive Guide Plan of the City. B. PUD-_-2009- C-REG-SER 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-_-2009- C-REG-SER are justified by the design of the development described therein. D. PUD- -2009- C-REG-SER is of sufficient size, composition, and arrangement that its construction, marketing, and operation is feasible as a complete unit without dependence upon any subsequent unit. Section 4. The land shall be subject to the terms and conditions of that certain Development Agreement dated as of August 18, 2009, entered into between Menard Inc., and the City of Eden Prairie, (hereinafter"Development Agreement"). The Development Agreement contains the terms and conditions of PUD-_-2009- C-REG-SER, and are hereby made a part hereof. Section 5. The proposal is hereby adopted and the land shall be, and hereby is amended within the Commercial Regional Service Zoning District and shall be included hereafter in the Planned Unit Development_-2009- C-REG-SER, 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 21st day of October, 2008, 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 18th day of August 2009. ATTEST: Kathleen A. Porta, City Clerk Phil Young, Mayor PUBLISHED in the Eden Prairie News on , 2009. EXHIBIT A PUD Legal Description — Lot 1, Block 1 Menard 7th Addition, Hennepin County, Minnesota Menards CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA SUMMARY OF ORDINANCE NO. -2009-PUD- -2009 AN ORDINANCE OF THE CITY OF EDEN PRAIRIE, MINNESOTA,AMENDING THE ZONING OF CERTAIN LAND WITHIN ONE 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 amendment of the zoning of land located at 12600 Plaza Drive within the Commercial Regional Service 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 Porta, City Clerk Phil Young, Mayor PUBLISHED in the Eden Prairie News on , 2009. (A full copy of the text of this Ordinance is available from City Clerk.) Menards CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2009- A RESOLUTION GRANTING SITE PLAN APPROVAL FOR MENARDS BY MENARDS, INC. WHEREAS, Menard Inc., has applied for Site Plan approval of Menards to construct a 210,943 square foot retail building, a 42,352 square foot warehouse building and a remodel of the existing 23,760 square foot strip retail building, by an Ordinance approved by the City Council on October 21, 2008; and WHEREAS, the Planning Commission reviewed said application at a public hearing at its September 8, 2008 meeting and recommended approval of said site plans; and WHEREAS, the City Council has reviewed said application at a public hearing at its October 21, 2008 meeting. NOW, THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE,that site plan approval be granted to Menards Inc.,based on the Development Agreement between Menards Inc. and the City of Eden Prairie, reviewed and approved by the City Council on August 18, 2009. ADOPTED by the City Council of the City of Eden Prairie this 18th day of August, 2009. Phil Young, Mayor ATTEST: Kathleen A. Porta, City Clerk DEVELOPMENT AGREEMENT MENARDS THIS DEVELOPMENT AGREEMENT("Agreement")is entered into as of August 18, 2009, by Menard, Inc., a Wisconsin 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 15.72acres, Planned Unit Development District Review with waivers on 15.72 acres, Zoning District Amendment within the Commercial Regional Service Zoning District on 15.72 acres, Site Plan Review on 15.72 acres, legally described on Exhibit A (the "Property"); 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 Amendment within the Commercial Regional Service Zoning District on 15.72 acres, Resolution No. for Site Plan Review, 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 October 14, 2008,reviewed and approved by the City Council on October 21,2008, (hereinafter the "Plans")and identified on 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 AGREEMENT: Developer has provided to City a Cross Access Easement, over the private driveways and driving aisles located within the Property for the benefit of Lot 1,Block 1,Menards 2nd Addition,Outlots B and C,Menards 4th Addition and Condominium Number 656 Eden Prairie Retail Condominium Plat adjacent to the Property. The form of the Agreement is approved by the City. This Agreement addresses joint vehicle access over the private driveways and driving aisles. These facilities shall be privately owned and maintained by the Developer, its successors and assigns. The Cross Access Easement has been filed with the [Hennepin County Recorder/Registrar of Title]on the day of , 2009 as document number . 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 subject to the appeal provisions of City Code Section 2.80. 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. EXISTING DEVELOPER'S AGREEMENT: This Development Agreement supersedes that certain unrecorded Developer's Agreement entered into as of December 5, 1978, amended by that certain unrecorded 1st Addendum to Developer's Agreement entered into as of October 22, 1978, amended by that certain unrecorded 2nd Addendum to Developer's Agreement entered into as of March 6, 1981, and amended by that certain unrecorded Supplement to Menard's Developer's Agreement entered into as of February 3, 1998, all between Menard, Inc. and the City of Eden Prairie. 7. 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 shall complete implementation of the approved exterior materials and colors plan in accordance with the terms and conditions of Exhibit C, attached hereto. 8. GRADING, DRAINAGE, AND STORMWATER POLLUTION PREVENTION 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 information,including wetland boundaries, wetland buffer strips and wetland buffer monument locations; all Stormwater Facilities,such as water quality ponding areas,stormwater detention areas, and stormwater infiltration systems; and any 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's engineer shall certify to the City that the Stormwater Facilities conform to the final grading plan and that the Stormwater Facilities are functioning in accordance with the approved plans. 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 Stormwater Pollution Prevention Plan(SWPPP). The design professional shall provide a final report to the City certifying completion of the grading in conformance the approved final grading plan and SWPPP. In addition, the design professional retained by the Developer to perform the monitoring of the Project shall be responsible for all monitoring, data entry and reporting to the PermiTrack ESC web-based erosion and sediment permit tracking program utilized by the City. B. STORMWATER FACILITY CONSTRUCTION: Stormwater Facilities, including detention basins,retention basins or Stormwater Infiltration Systems(such as rainwater gardens, vegetated swales, infiltration basins, vegetated filters, filter strips,curbless parking lot islands,parking lot islands with curb-cuts,traffic islands, tree box filters,bioretention systems or infiltration trenches)shall be maintained by the Developer during construction and for a minimum of two (2) full growing seasons after completion of the development to ensure that soil compaction,erosion, clogging,vegetation loss and channelization of flow are not occurring,and thereafter by the Owner of the Property.A Planting Plan for the Stormwater Facilities must be submitted prior to release of the first building permit for the Development Developer shall employ the design professional who prepared the final grading plan to monitor construction of the Stormwater Facilities for conformance to the Minnesota Pollution Control Agency publication entitled"State of Minnesota Storm water Manual" dated November 2005, the approved final grading plan and the requirements listed herein. All Stormwater Infiltration Systems shall be delineated with erosion control fencing prior to construction. The Stormwater Infiltration Systems shall be installed using low-impact earth moving equipment. No equipment, vehicles, supplies or other materials shall be allowed in the areas designated for stormwater infiltration during construction. Pervious surfaces shall be stabilized with seed and mulch or sod and all impervious surfaces must be completed prior to final grading and planting of the Stormwater Infiltration Systems. All Stormwater Facilities shall be kept free of debris, litter, invasive plants and sediment. Sediment, debris, litter or vegetation removal in Stormwater Infiltration Systems shall be by hand or with a flat-bottomed shovel or rake during dry periods. Only enough sediment shall be removed as needed to restore hydraulic capacity, leaving as much of the vegetation in place as possible. Any damaged turf or vegetation shall be reseeded or replaced. After the two year period of Developer maintenance,the Owner of the Property shall be responsible for maintenance of the Stormwater Facilities. This shall include debris and litter removal, removal of noxious and invasive plants, removal of dead and diseased plants,re-mulching of void areas,replanting or reseeding areas where dead or diseased plants were removed and removal of sediment build-up. Sediment build-up in Stormwater Infiltration Systems shall be removed by hand. C. STORMWATER POLLUTION PREVENTION PLAN (SWPPP): Prior to issuance of a land alteration permit,Developer shall submit to the City Engineer and obtain City Engineer's written approval of Stormwater Pollution Prevention Plan (SWPPP) for the Property. The SWPPP shall include all boundary erosion control features, temporary stockpile locations, turf restoration procedures, concrete truck washout areas and any other best management practices to be utilized within the Project. Prior to release of the grading bond, Developer shall complete implementation of the approved SWPPP. 9. 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. The irrigation plan shall be designed so that water is not directed on or over public trails and sidewalks. Developer shall 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. 10. 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 depicting a total of 857 caliper inches. The approved landscape plan shall be consistent with the quantity,type,and size of plant materials shown on the landscape plan on the Plans. Developer shall furnish to the City Planner and receive the City Planner's written approval of a security in the form of a bond, cash escrow, or letter of credit, equal to 150% of the cost of said improvements as required by City Code. Prior to issuance of any occupancy permit for the Property, Developer shall complete implementation of the approved landscape plan in accordance with the terms and conditions of Exhibit C. 11. MECHANICAL EQUIPMENT SCREENING: Developer shall submit to the City Planner, and receive the City Planner's written approval of a plan for screening of mechanical 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. 12. OUTSIDE STORAGE: Developer shall not permit in the parking lot or sidewalk area in front of the building any outside storage of equipment, merchandise, inventory or refuse. 13. PERFORMANCE STANDARDS: Developer agrees that the Property will be operated in a manner meeting all applicable noise,vibration,dust and dirt,smoke,odor and glare laws and regulations. Developer further agrees that the facility upon the Property shall be operated in conformance with City Code Section 11.03 Subd. 4 and 9.41. 14. PROOF OF PARKING SPACES: Developer and City acknowledge that the 995 proof of parking spaces proposed for the Property, depicted in the Plans, are designated for use by Menards and that said spaces are not required to be constructed at this time. At such time as the City Manager,in his or her sole discretion,determines that it is necessary for all or a portion of the proof of parking spaces to be constructed in order to accommodate the Menards use, the City Manager shall notify the Developer in writing of the need to construct additional proof of parking spaces. This notification shall include the number, location and timetable for construction of the additional proof-of-parking spaces. Developer shall comply with all requirements contained in the City Manager's notification. 15. PUBLIC UTILITY PLANS: Prior to issuance by the City of any permit for the construction of public sanitary sewer and watermain for the Property,Developer shall submit to the City Engineer, and obtain the City Engineer's written approval of plans for public sanitary sewers and watermains. Plans for public infrastructures shall be of a plan view and profile on 24 x 36 plan sheets consistent with City standards. Prior to issuance of a building permit for the Property, Developer shall furnish to the City Engineer and receive the City Engineer's written approval of a surety equal to 125%of the cost of said improvements. 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. 16. PUD WAIVERS GRANTED: The city hereby grants the following waivers to City Code requirements within the Commercial Regional Service Zoning District through the Planned Unit Development District Review for the Property and incorporates said waivers as part of PUD (list PUD number): 1. A floor area ratio of 0.401. City code permits up to a 0.40 floor area ratio in the Commercial Regional Service zoning district. 2. A base area ratio of 0.205. City code permits up to a 0.20 base area ratio in the Commercial Regional zoning district. 3. Required parking from 1,372 spaces to 526 spaces. 4. A fence height of 14 feet. City code permits a fence height of up to 6 feet. 5. Outside Storage and Display of 44% of the base area of the building. City code permits up to 6% of the base area of the building. 17. 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, prior to issuance of any occupancy permit for the Property. 18. SIGNS: Developer agrees that for each sign which requires a permit by Eden Prairie City Code, Section 11.70, Developer shall file with the City Planner and receive the City Planner's written approval of an application for a sign permit. The application shall include a complete description of the sign and a sketch showing the size, location, the manner of construction, and other such information as necessary to inform the City of the kind, size, material construction,and location of any such sign,consistent with the sign plan shown on the Plans and in accordance with the requirements of City Code, Section 11.70, Subdivision 5a. The sign application(s) shall be approved provided the signs identified in the application(s) are the same as and conform to the signs identified in Exhibit B (Building Elevations dated 10/13/08 by Menard Inc. and Signage Plan dated 7/28/09). actual sign permits submitted conform to Exhibit B. 19. 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 30 feet in height. Developer shall complete implementation of the approved lighting plan prior to issuance of any occupancy permit for the Property. 20. TRASH: Developer agrees that all trash, trash receptacles and recycling bins shall at all times be located inside of the building enclosures depicted on the Plans. 21. TRASH ENCLOSURE: Developer has submitted to the City Planner, and obtained the City Planner's written approval of a plan for the design and construction of the outside trash enclosure for the Property. This trash enclosure shall be constructed with face brick to match the building, include a roof, and heavy duty steel gates that completely screen the interior of the enclosure. Developer shall complete implementation of the trash enclosure plan prior to issuance of any occupancy permit for the Property. 22. UTILITY EASEMENTS: Prior to the issuance of a permit for the construction of public utilities on the Property,Developer shall convey drainage and utility easements to the City over all public utilities. The form and substance of the drainage and utility easements must be approved in writing by the City Engineer. After approval by the City Engineer, Developer shall file the drainage and utility easements with the Hennepin County Recorder/Registrar of Title as appropriate prior to recording of any document affecting the property including but not limited to any mortgage granted by the Developer or Owners, their successors and/or assigns or with the consent of the holder(s) of such prior interests. 23. VACATION OF EXISTING DRAINAGE AND UTILITY EASEMENTS: Upon completion of construction of the new drainage and utility easements on the Property after filing as required by paragraph 22 above, the Developer shall apply for vacation of the existing drainage and utility easements over the portions of sanitary sewer and water main that are to be relocated. Upon such application,City shall undertake to hold a public hearing to consider vacation of said easements. IN WITNESS WHEREOF,the parties to this Agreement have caused these presents to be executed as of the day and year aforesaid. MENARD, INC. CITY OF EDEN PRAIRIE By By Theron Berg Phil Young Its Real Estate Manager Its Mayor By Scott H. Neal Its City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2009,by Phil Young 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 WISCONSIN ) ) ss. COUNTY OF EAU CLAIRE) The foregoing instrument was acknowledged before me this day of , 2009,by Theron Berg,the Real Estate Manger , of Menard,Inc., a Wisconsin corporation, on behalf of the company. Notary Public THIS INSTRUMENT WAS DRAFTED BY: City of Eden Prairie 8080 Mitchell Road Eden Prairie,MN 55344 EXHIBIT A DEVELOPMENT AGREEMENT -MENARDS Legal Description Lot 1, Block 1 Menard 7th Addition, Hennepin County, Minnesota EXHIBIT B DEVELOPMENT AGREEMENT—MENARDS Existing Site Plan dated 12/07 by TEC Design Utilities Plan dated 12/07 by TEC Design Grading Plan dated 12/07 by TEC Design Standard Details dated 12/07 by TEC Design General Floor Plans dated 11/1/07 by Menard Inc. Roof Deck Plan dated 9/1/07 by Menard Inc. Photometric Plan dated 1/31/07 by Menard Inc. Warehouse Elevation and Plan dated 10/10/07 by Menard Inc. New Menards Elevation& Shopping Center Remodel dated 8/10/07 by Menard Inc. Building Elevations dated 10/13/08 by Menard Inc. Existing Site Plan dated 1/22/08 by Menard Inc. Proof of Parking Plans dated 05/01/08 by Menard Inc. Details and Sections dated 01/22/08 by Menard Inc. City Plan Proposal dated 01/22/08 by Menard Inc. Signage Plan dated 7/28/2009 by Menard Inc. EXHIBIT C DEVELOPMENT AGREEMENT—MENARDS 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. If Developer fails to proceed in accordance with this Agreement within thirty-six (36) months of the date hereof,Developer,for itself,its successors,and assigns,shall not oppose the City's reconsideration and rescission of any Rezoning, Site Plan review and/or Guide 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. IV. Provisions of this Agreement shall be binding upon and enforceable against the Property and the Owners, their successors and assigns of the Property. V. 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. VI. Developer represents that it has marketable fee title to the Property, except: INSERT ANY NAME/COMPANY LISTED IN ANY OWNER'S SUPPLEMENT TO THE DEVELOPER'S AGREEMENT) NONE 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,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 or 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. VII. 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. VIII. 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. IX. 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. X. 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. XI. Developer shall,prior to the commencement of any improvements,provide written notice to Comcast of the development contemplated by this Development Agreement. Notice shall be sent to Comcast Cable, 9705 Data Park, Minnetonka, Minnesota 55343. XII. 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),. Contact Metropolitan Waste Control to determine the number of SAC units. XIII. Prior to building permit issuance, except as otherwise authorized in the approved Plans, existing structures, wells and septic systems (if present) shall be properly abandoned or removed as required by City ordinance and all permits obtained through the Inspections Department. XIV. 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. XV. 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. XVI. 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. XVII. 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 1/2 by 6 inch sign or decal reading "Scenic/Conservation Easement Boundary,City of Eden Prairie",will be affixed to the top of the post. XVIII. Within 10 days of the approval of the Development Agreement,the Developer shall record the Development Agreement at the County Recorder and/or Registrar of Titles. The final plat shall not be released until proof of filing of the Development Agreement is submitted to the City. XIX. The City is hereby granted the option, but not the obligation, to complete or cause completion in whole or part of all of the Developer's obligations under this Agreement for which a bond, letter of credit, cash deposit or other security (hereinafter referred to as the "Security")is required if the Developer defaults with respect to any term or condition in this Agreement for which Security is required and fails to cure such default(s) within ten (10) days after receipt of written notice thereof from the City;provided however if the nature of the cure is such that it is not possible to complete the cure within ten(10) days, it shall be sufficient if the Developer has initiated and is diligently pursuing such cure. The Developer acknowledges that the City does not assume any obligations or duties of the Developer with respect to any such contract agreements unless the City shall agree in writing to do so. The City may draw down on or make a claim against the Security,as appropriate,upon five (5)business days notice to the Developer,for any violation of the terms of this Agreement or if the Security is allowed to lapse prior to the end of the required term. If the obligations for which Security is required are not completed at least thirty(30)days prior to the expiration of the Security and if the Security has not then been renewed,replaced or otherwise extended beyond the expiration date, the City may also draw down or make a claim against the Security as appropriate. If the Security is drawn down on or a claim is made against the Security, the proceeds shall be used to cure the default(s) and to reimburse the City for all costs and expenses, including attorneys' fee, incurred by the City in enforcing this Agreement. XX. The Developer hereby grants the City, it's agents, employees, officers and contractors a license to enter the Property to perform all work and inspections deemed appropriate by the City in conjunction with this Agreement. XXI. This Agreement is a contract agreement between the City and the Developer. No provision of this Agreement inures to the benefit of any third person,including the public at large, so as to constitute any such person as a third-party beneficiary of the Agreement or of any one or more of the terms hereof,or otherwise give rise to any cause of action for any person not a party hereto. CITY COUNCIL AGENDA DATE: SECTION: Consent Agenda August 18, 2009 DEPARTMENT/DIVISION: ITEM DESCRIPTION: I.C. 08-5713 ITEM NO.: VIII.B. Public Works/Environmental Approve Second Reading of an Ordinance Services Amending City Code Section 11.51, Leslie Stovring Standards for Protection of Wetlands Requested Action Move to: Approve Second Reading of an Ordinance Amending City Code Section 11.51, Standards for Protection of Wetlands Synopsis City Code Section 11.51 Sections A and B are being amended to consolidate the requirements for completing a wetland delineation, wetland determination and/or no-loss determination onto an application form that is to be completed and submitted to the City for approval. This will provide the city and Applicant an easy-to-use tool to ensure that all the various requirements of the City Code and Wetland Conservation Act are followed for projects that involve wetland conditions. Additional editorial changes were also made to clarify the requirements of these sections. Staff recommends approval of the second reading of the ordinance. Background Information The first reading for the Ordinance was on July 21,2009. No changes have been made to the Ordinance since that time. Attachments • Wetland Code Revision CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA ORDINANCE NO. AN ORDINANCE OF THE CITY OF EDEN PRAIRIE, MINNESOTA, AMENDING CITY CODE SECTION 11.51, SUBDIVISON 11, A AND B. RELATING TO SPECIAL REQUIREMENTS FOR WETLAND CONSERVATION ACT 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. City Code Chapter 11 - Section 11.51, Subdivision 11, A and B entitled "Special Requirements for Wetland Conversation Act (WCA) Services are amended in their entirety as follows: A. Wetland Evaluation / Wetland Determination Review — An Applicant submitting a Development Application must provide a report documenting site conditions; wetland delineation review procedures; a statement as to whether wetlands are present on site and whether the development proposal will result in a loss of wetland. All reports required in this section must be approved by the Environmental Coordinator. The decision of the Environmental Coordinator shall be final unless within 30 days of the date of mailing of the decision the Applicant files an appeal with the City Council pursuant to City Code Section 2.80. Reports must be prepared in accordance with paragraph B. B. Wetland Delineation, Wetland Determination and No Loss Determination Review Application — The Applicant shall complete and file with the Environmental Coordinator an Application for Review of Wetland Determinations in the form required by the Environmental Coordinator. The Application, including the following information, must be filed with the Environmental Coordinator a minimum of one week prior to scheduling a field review by the Environmental Coordinator: 1. Wetland Delineation Report, Wetland Determination or No Loss Determination Report, one print copy and one electronic (PDF) version in color (all maps in the PDF version need to be developed for an 11" x 17" printable format with sufficient detail so all features are legible); 2. Wetland Buffer Strip Report, one print and one electronic copy (PDF) must be submitted with the Wetland Delineation or No Loss Determination Report; 3. Scaled public land survey map of the wetland delineation and boundary, transect locations and sample points; 4. Survey data in a format compatible with ArcView software; 5. A minimum of two wetland data forms per wetland representing the wetland parameters at two locations along with a data form documenting upland conditions at each location; 6. Color copies of current and historical aerial photographs as required to define current and historic wetland conditions or wetland boundaries; 7. Field data sheets documenting soil, vegetation and hydrology conditions at a minimum of two locations; and 8. Such other information as required by the Environmental Coordinator. Section 2 — 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 3 - Effective Date - This Ordinance shall take effect upon its passage and publication. FIRST READ at a regular meeting of the City Council of the City of Eden Prairie on the 21st day of July, 2009 and finally read and adopted and ordered published at a regular meeting of the City Council of said City on the 18th day of August, 2009. Kathleen Porta, City Clerk Phil Young, Mayor CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar August 18, 2009 DEPARTMENT/DIVISION: ITEM DESCRIPTION: I. C. 07-5698 ITEM NO.: VIII.C. Eugene A. Dietz Resolution Requesting the US Army Corp Public Works of Engineers Study Erosion Problems on the Minnesota River Requested Action Move to: Adopt Resolution Requesting the U.S. Army Corp of Engineers Prepare a Study to Stabilize the North Bank of the Minnesota River in Sections 34 & 35 T116 R22 Hennepin County, Minnesota. Synopsis This resolution will initiate a process to involve the Corp of Engineers (COE) in a study of the Minnesota River along old Riverview Road. The number of erosion sites along this section of the River is growing along with the seriousness of the problem. Staff has been working with the Lower Minnesota River Watershed District(LMRWD) on this issue and it is expected that the District will adopt a similar resolution as the one attached. The resolution does not presently create any obligation on the part of the City of Eden Prairie. If the COE becomes involved, this could develop into some type of cooperative agreement, which will be the topic of a City Council discussion prior to any commitments being made. Background Information A significant oxbow with a very sharp 100 degree bend occurs in the Minnesota River south and east of the landfill site - approximately midway between Spring Road and TH169. Due to the energy of the river during high water conditions and probably as a result of underground springs/seeps surfacing in the bluff adjacent to the river, there has been ongoing erosion and sloughing of the river bank. In 1937, the river was approximately 200 feet wide and the northern river edge was approximately 500 feet from Riverview Road. In 1967 sloughing was first identified on aerial photographs reviewed for the site. However, in 1984 significant vegetation removal was identified and shortly thereafter there was a major slough that resulted in the loss of a section of Riverview Road(it was only being used for maintenance and hiking purposes at the time). A new slough and cracks along the top of the river bank developed over the winter of 2008/09. With the sloughing, the river edge is now on average about 100 feet from Riverview Road and the river is over 300 feet wide. In 1987 the City constructed a stormwater management pond approximately 70 feet from the river in this general location. Today, the berm that created the south edge of the pond along with approximately 70 feet of river bank has eroded away. This pond failure is the subject of a Minnesota Pollution Control Agency directive to repair and the topic of a possible lawsuit by a resident. The major slough that occurred in the 80's was the subject of a 2008 study by SRF Consulting Group hired by the City and paid jointly by the LMRWD. SRF indicated that the major contributors or triggering events for the landslides include soil saturation due to groundwater seepage; the rise and fall of the river levels; and loss of soil material at the slope toe. They estimated that to stabilize this slough the toe of the slope should be stabilized at approximately 50 feet from the centerline of Riverview Road. The estimated cost was approximately$435,000 to repair just the original slough area. There are now at least 3 other locations that are in various stages of a similar failure. The concern of staff is that it will take a significant investment just to repair the existing sites with no guarantee that the problem will not just move to another location within Eden Prairie. It appears likely that the entire oxbow of the river probably needs to be armored in some way to prevent the problems from starting or possibly re-aligning the channel -resulting in a multi- million dollar project. Staff believes that such an undertaking is beyond the scope of Eden Prairie and the LMRWD. The Minnesota River drains about 20% of the state and the River downstream is maintained for navigation. The COE has in-house expertise and is the authority in dealing with matters of the waters of the United States. The LMWSD has expressed concern about the stability of the river bank in this area and the potential risk to private property. We have asked that the LMRWD consider adopting a similar resolution as being proposed for approval by City Council. Our goal is to bring the skills and abilities of the COE to bear on this significant issue before more significant damage occurs. Attachment Resolution CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2009- A RESOLUTION REQUESTING THE U.S. ARMY CORP OF ENGINEERS PREPARE A STUDY TO STABLIZE THE NORTH BANK OF THE MINNESOTA RIVER IN SECTIONS 34 & 35 T116 R22 HENNEPIN COUNTY, MINNESOTA WHEREAS, the Minnesota River passes through the corporate limits of the City of Eden Prairie; WHEREAS, the Minnesota River meanders into a major oxbow at approximately River Mile 21; WHEREAS, multiple and significant sites of erosion are occurring in the northern bank of the oxbow; WHEREAS, the Minnesota River has eroded and moved the north bank of the oxbow at least 70 to 100 feet in the past two decades resulting in the loss of municipal right of way and infrastructure; WHEREAS, concern exists for loss of private property due to additional erosion, undermining of the river bank and movement of the river channel; WHEREAS, the Minnesota River drains approximately 20% of the State of Minnesota; WHEREAS, the Minnesota River is maintained for navigation purposes; WHEREAS, the forces, complexities and uses of this major waterway go well beyond the corporate limits, technical expertise and financial capabilities of any one City, including the City of Eden Prairie; and WHEREAS, the U.S. Army Corp of Engineers has the technical expertise, is charged with caring for and maintaining waterways of the United States and has access to funding mechanisms of a scale to resolve major river erosion issues. NOW, THEREFORE, BE IT RESOLVED by the Eden Prairie City Council: A. That the U.S. Army Corp of Engineers is respectfully requested to engage in a study of feasible solutions to halt, mitigate and restore the erosion and northward movement of the north bank of the Minnesota River in the vicinity of River Mile 21 in Sections 34 and 35, T116, R22, Hennepin County Minnesota. B. That the staff of the City of Eden Prairie are herby instructed to cooperate with and provide all requested assistance and available information, including topography data to the U. S. Army Corp of Engineers. C. That the U.S. Army Corp of Engineers is requested to make a determination at the earliest possible date, in a preliminary way, to identify the urgency and timing necessary to implement a stabilization project to prevent additional significant and irreparable loss of property. D. That based on the initial determination, the U.S. Army Corp of Engineers is requested to commence a full investigation/study in the time frame as determined. ADOPTED by the Eden Prairie City Council on August 18, 2009. Phil Young, Mayor ATTEST: SEAL Kathleen Porta, City Clerk CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar August 18, 2009 DEPARTMENT/DIVISION: ITEM DESCRIPTION: I.C. 09-5760 ITEM NO.: VIII.D. Eugene A. Dietz Resolution Closing a Segment of Public Works Riverview Road to Public Use Requested Action Move to: Adopt Resolution authorizing closure of a Section of Riverview Road to public use and establishing conditions for private use. Synopsis The Upgrala Hunt Club has requested that an additional section of west Riverview Road be closed to the general public. The only active property owner on the easterly segment of the gravel road portion of Riverview Road that connects to Flying Cloud Drive is the Hunt Club. Over the years, there have been a number of instances of vandalism and illegal dumping. This resolution will close approximately 4000 feet of the roadway by moving an existing gate to a new location about 1000 feet east of Flying Cloud Drive to approximately the eastern lot line of property owned by Sever Peterson. The mutual benefit is that the Hunt Club will have more security and the City will substantially reduce maintenance costs for the road. This segment of Riverview Road will be treated as a private driveway within a public right of way. Staff recommends adoption of the resolution. Background Information Riverview Road exists in three conditions: 1) The westerly one mile connected to Flying Cloud Drive is maintained by the City as a gravel road; 2) The middle 6500 feet is closed to traffic and is only minimally used by the City for maintenance purposes and occasionally by Allied Waste Services or their consultants for "closed landfill activities"; and 3) The easterly 2 miles is a combination of paved urban section with curb and gutter and storm sewer and a narrow pavement rural section without drainage improvements. This request by the Upgrala Hunt Club would close about 4000 feet of the westerly segment resulting in approximately 2 miles of the roadway that would be closed for public use for motor vehicles. No section of Riverview Road has been or is intended to be vacated or abandoned. The entire length of Riverview Road is designated as a State Aid route since the 1970's and the City has been collecting financial needs on the route during this time. Upgrading the entire roadway is not on our near term capital improvements list, but maintaining the corridor is an important provision for future transportation needs that could elevate the priority of the roadway. The resolution that changes the status of the current use of the segment of roadway in question has been written to maintain the roadway in City ownership and control. The resolution grants the Upgrala Hunt Club permission to maintain the segment being closed to the public as a private driveway with private maintenance by the club. The resolution also provides that the action is conditioned on Upgrala Hunt Club agreeing in writing to bear the maintenance costs associated with the closed segment of right of way and acknowledging that the closure may impact the timing of emergency services required beyond the gate. The gate will be chained in such a way as to provide an individual lock for Upgrala, Eden Prairie staff, US Fish and Wildlife and the Landfill. City staff will no longer plow the roadway in the winter or maintain the gravel surface of the closed section beyond the needs that we may have for maintenance activities, which are expected to be very minimal. Each of the entities that have a key for the gate and may have invitees, guests or contractors on and through the entire length of Riverview Road as appropriate, including this segment being closed to the general public. As a public Right of Way, the City of Eden Prairie will always have the final say as to utilization of all segments of Riverview Road. This action accommodates a request, but if granted, will be with these conditions and criteria. Attachments Resolution CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2009- Resolution Authorizing Closing a Segment of Riverview Road to Public Use WHEREAS, the City of Eden Prairie maintains the westerly segment of Riverview Road, east of Flying Cloud Drive as a gravel roadway for approximately 6000 feet in length; and WHEREAS, a gate currently exists at the easterly end of said 6000 feet, beyond which the Riverview Road right of way is currently closed to public access; and WHEREAS, the Upgrala Hunt Club maintains buildings and grounds at the end of the existing gravel road section; and WHEREAS, the owners of the Upgrala Hunt Club have experienced vandalism to their buildings and property and have requested that an additional length of the roadway be closed to public access; and WHEREAS, this segment of Riverview Road has been subject to illegal dumping activities; and WHEREAS, there are no public facilities or uses along and adjacent to said roadway that are a destination for residents of Eden Prairie or the traveling public in general; and WHEREAS, it is proposed to move the existing gate or install a new gate at a location approximately 1000 feet east of Flying Cloud Drive; and WHEREAS, the gate can be locked in a way to provide current stakeholders and their invited guests and contractors such as US Fish and Wildlife; City of Eden Prairie; the State of Minnesota and Minnesota Pollution Control Agency, their contractors and agents, and Allied Waste Services (for "Closed Landfill" activities); Minnesota Department of Natural Resources; and Upgrala Hunt Club access. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Eden Prairie that said segment of Riverview Road from approximately 1000 feet east of Flying Cloud Drive to approximately 6000 feet east of Flying Cloud Drive be closed to public access, subject to the following conditions, facts and criteria: 1. Nothing in this action constitutes in any way a vacation or abandonment of the right of way of Riverview Road, nor the uses and activities that the City in its sole discretion may determine to implement within the right of way in the future. 2. The road right of way shall be managed by the City as a closed right of way with a private driveway. 3. That Upgrala Hunt Club and behalf of itself and its assigns agrees in writing to be responsible at its sole cost to maintain the right of way, except that the City may choose to perform minor maintenance to allow for certain City sponsored maintenance activities to be performed. 4. That Upgrala Hunt Club acknowledge in writing that that the proposed gate location and the condition to which it maintains the right of way beyond the gate may negatively impact emergency response time. ADOPTED by the Eden Prairie City Council on August 18, 2009. Phil Young, Mayor ATTEST: SEAL Kathleen Porta, City Clerk CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar August 18, 2009 DEPARTMENT/DIVISION: ITEM DESCRIPTION: I.C. 09-5739 I ITEM NO.: VIILE. Mary Krause Approve Change Order No. 1 for the 2009 Bituminous Overlay Project Public Works/Engineering Requested Action Move to: Approve Change Order No. 1 for the 2009 Bituminous Overlay Project. Synopsis Change Order No. 1 totaling $79,003.94, is the result of adding the reclamation and repaving of Riverview Road to the 2009 Bituminous Overlay Project. Background Information The reclamation and repaving of Riverview Road work between Landing Road and Parker Drive has been completed. The work included reclaiming the existing pavement, repaving, shouldering and striping the roadway. Two storm sewer catchbasins and storm sewer were added at the westerly end of the project to address drainage issues adding $6,410 to the cost of the project. All work has been completed. Financial Implications Change Order No. 1 results in a$79,003.94 increase to the total contract amount. With this change order the total contract amount is increased to $1,632,243.94. The funding source for the Change Order will be from the pavement management CIP fund. Attachment: • Change Order No. 1 CHANGE ORDER#1 August 18, 2009 Project: I.C. 09-5739, 2009 Bituminous Overlays The following items and quantities are added to the contract as indicated below for improvements to Riverview Road: Item# Item Qty. Unit Unit Price Total 1 Mobilization - 1 Lump Sum $8,000.00 $8,000.00 2 Reclaimation _ 5,172 S.Y. $1.20 $6,206.40 3 Aggregate 5,172 S.Y. $0.75 $3,879.00 Surface Prep _ 4 Bituminous 569.01 Tons $47.70 $27,141.78 Base 5 Bituminous 260 Gallons $3.00 $780.00 Tack 6 Bituminous 396.67 Tons $47.70 $18,921.16 Wear (1%") 7 Epoxy Striping 1665 L.F. $0.90 $1,498.50 (Double Yellow) 8 Aggregate 105.57 Tons $30.00 $3,167.10 Shouldering 9 Traffic Control 1 Lump Sum $3,000.00 $3,000.00 10 Concrete 1 Each $1,190.00 $1,190.00 catchbasin#1 11 Concrete 1 Each $1,810.00 $1,810.00 catchbasin#2 12 Frame& Grate 2 Each $650.00 $1,300.00 13 Connect to 1 Each $250.00 $250.00 existing structure 14 1 12" HDPE Pipe 52 L.F. $30.00 $1,560.00 15 Bituminous 2 Each $150.00 $300.00 Flume TOTAL $79,003.94 Original Contract Amount: $1,553,240.00 Total Additions: $79,003.94 Total Contract Value including this Change Order $1,632,243.94 The above changes are approved and accepted: CITY OF EDEN PRAIRIE GMH Asphalt Corporation By By City Manager Date Date CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar August 18, 2009 DEPARTMENT/DIVISION: ITEM DESCRIPTION: I.C. 07-5698 ITEM NO.: VIII.F. Leslie Stovring Approve a Drainage and Utility Public Works/Engineering Easement Agreement for Stabilization of Two Erosion Gullies in the Lower Minnesota River Watershed District Requested Action Move to: Approve the Drainage and Utility Easement Agreement and authorize the Mayor and City Manager to execute the Agreement for two project areas located in the Lower Minnesota River Watershed District. Synopsis This process is necessary to obtain easements from the owners of property managed by the Upgrala Management Company. The properties contain two erosion gullies that will be stabilized and restored by the City in partnership with the Lower Minnesota River Watershed District. Background Information The City and Lower Minnesota River Watershed District are currently partnering on four projects within their District. Study Areas 1 and 2 are located south of Flying Cloud Drive, along Old Riverview Road on property owned by the Upgrala hunt club. There has been significant downcutting of the culverts by approximately 15 to 20 feet and formation of steeply- banked ravines in both areas. The ravines drain toward Grass Lake and the Minnesota River. At the upstream location there is drainage from Flying Cloud Drive that contributes to the stormwater flow that will need to be stabilized as part of the project. The Drainage and Utility Easement will allow the City to continue maintenance within this area after construction is complete and to help prevent further erosion towards the Minnesota River. The property is owned by a consortium of individuals that operate under a Tenancy Agreement dated September 19, 1985 and is managed by the Upgrala Management Company. The costs associated with obtaining the easement will be funded through the Stormwater Utility Fund. Attachment: • Drainage and Utility Easement Agreement DRAINAGE AND UTILITY EASEMENT AGREEMENT This Drainage and Utility Easement Agreement is made effective this day of , 2009 by and between the undersigned Grantors (collectively, the "Grantors") and the City of Eden Prairie, a municipal corporation of the State of Minnesota, ("Grantee"). RECITALS: A. Grantors and others (collectively and with their heirs, successors and assigns, the "Tenants in Common") are the owners of certain parcels of land located in the City of Eden Prairie, County of Hennepin, State of Minnesota legally described as Government Lot 5, Section 33, Township 116, Range 22, lying Southerly of County Road 37 (Riverview Road) (the "Property") . B. Pursuant to that certain unrecorded Tenancy Agreement dated September 19, 1985 binding upon the Tenants in Common and related to the Property and other lands (as amended from time to time, the "Tenancy Agreement"), those Tenants in Common holding sixty-six and two- thirds percent (66-2/3%) of the interests of the Tenants in Common in the Property have the right to approve any encumbrances placed on the Property, and any such encumbrance may only be conveyed upon the written authorization of sixty-six and two-thirds percent (66-2/3%) of the interests of the Tenants in Common, but any such encumbrance, when so approved and authorized, shall bind each Tenant in Common. C. The Grantors who have executed this Agreement constitute more than sixty-six and two-thirds percent (66-2/3%) of the interests of the Tenants in Common, and desire to grant, on behalf of the Tenants in Common, to Grantee the following easements (collectively, the "Easements"): 1. As to that portion of the Property embraced within Hennepin County Parcel Identification Number 33-116-22-11-0001: A perpetual, non-exclusive easement for drainage and utility purposes ("Permanent Easement 1") over, under, across and through that part of Government Lot 5, Section 33, Township 116, Range 22, Hennepin County, Minnesota lying southerly of County Road 37 (Riverview Road) described as commencing at the intersection of the east line of said Government Lot 5 with the southerly right of way line of said Riverview Road; thence North 89 degrees 20 minutes 48 seconds West, assumed bearing, along said southerly right of way line a distance of 271.34 feet to the beginning of the perpetual easement to be described; thence South 0 degrees 39 minutes 12 seconds West 207.0 feet; thence North 89 degrees 20 minutes 48 seconds West 60.0 feet; thence North 25 degrees 10 minutes 18 seconds West 183.31 feet; thence North 0 degrees 39 minutes 12 seconds East 42.0 feet to the southerly right of way line of said Riverview Road; thence South 89 degrees 20 minutes 48 seconds East, along said southerly right of way line, 139.85 feet to the point of beginning ("Permanent Easement Parcel 1"). A drawing of Permanent Easement Parcel 1 is attached hereto as Exhibit A. Together with a temporary easement for construction purposes ("Temporary Easement 1"), over, under, across and through the West 180.0 feet of the East 435.0 feet of the North 207.0 feet of that part of Government Lot 5, Section 33, Township 116, Range 22, Hennepin County, Minnesota lying southerly of County Road 37 (Riverview Road) ("Temporary Easement Parcel 1"). A drawing of Temporary Easement Parcel 1 is attached hereto as Exhibit B. 2. As to that portion of the Property embraced within Hennepin County Parcel Identification Number 33-116-22-11-0003: A perpetual, non-exclusive easement for drainage and utility purposes ("Permanent Easement 2," together with Permanent Easement 1, the "Permanent Easements") over, under, across and through the East 20.0 feet of the West 103.5 feet of the North 68.0 feet of that part of Government Lot 5, Section 33, Township 116, Range 22, Hennepin County, Minnesota lying southerly of County Road 37 (Riverview Road) ("Permanent Easement Parcel 2," and together with Permanent Easement Parcel 1, the "Permanent Easement Parcels"). A drawing of Permanent Easement Parcel 2 is attached hereto as Exhibit C. Together with a temporary easement for construction purposes ("Temporary Easement 2," together with Temporary Easement 1, the "Temporary Easements") over, under, across and through the East 87.0 feet of the West 135.0 feet of the North 61.0 feet of that party of Government Lot 5, Section 33, Township 116, Range 22, Hennepin County, Minnesota lying southerly of County Road 37 (Riverview Road) ("Temporary Easement Parcel 2", and together with Temporary Easement Parcel 1, the "Temporary Easement Parcels"). A drawing of Temporary Easement Parcel 2 is attached hereto as Exhibit D. A map of the Property depicting the general location of the Permanent and Temporary Easements is attached hereto as Exhibit E (General Easement Location Map). AGREEMENT: For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Grantors, on behalf of the Tenants in Common, and Grantee agree as follows: 1. Grant of Easements and Easement Rights. Grantors, on behalf of the Tenants in Common, hereby grant to Grantee, upon the terms and conditions set forth herein: (a) Permanent Easement 1 over Permanent Easement Parcel 1, (b) Permanent Easement 2 over Permanent Easement Parcel 2, (c) Temporary Easement 1 over Temporary Easement Parcel 1, and (d) Temporary Easement 2 over Temporary Easement Parcel 2. The Permanent Easements granted herein include the right to use, install, maintain, remove and replace within the Permanent Easement Parcels drainage swales, rock, drainage pipe and tile, vegetation, including, but not limited to seed, trees and shrubs, and other related improvements as may be required by Grantees (collectively the "Drainage Improvements"). The Temporary Easements granted herein are for the purpose of ingress and egress to and from the Permanent Easement Parcels, storage of equipment and stockpiling of dirt and materials during the construction and installation of the Drainage Improvements. Such right shall include the right to engage in any activity reasonably necessary for the construction and installation of the Drainage Improvements. The Temporary Construction Easements shall terminate on the earlier of (i) the completion of the construction of the Drainage Improvements; or(ii) July 30, 2011. Grantee may, in conjunction with use of the Permanent Easement Parcels and the Temporary Easement Parcels (collectively, the "Easement Parcels") as permitted hereby, remove, destroy, alter or replace any and all grasses, shrubs, trees and natural growth now existing on the Easement Parcels. Grantee shall have the right to use and remove all earthen materials, structures, improvements and obstructions which lie within the boundaries of the Easement Parcels, including the right of clearing the Easement Parcels to allow for the use of the Easement Parcels as stated herein. Further, Grantee shall have the right of ingress and egress across the Easement Parcels only for the purpose of constructing and maintaining, operating and repairing the Drainage Improvements. The Easements granted herein are limited to the aforementioned purposes and specifically exclude any right of entry to Grass Lake or entry upon the Property for any other purposes including, but not limited to, hunting or other general outdoor recreation activities. 2. Initial Construction of the Drainage Improvements. Grantee shall conduct the initial construction of the Drainage Improvements on or before July 30, 2011 (subject to the provisions of Section 3 hereof), in compliance with all applicable laws and related requirements, including, but not limited to, environmental laws and regulations (collectively, "Legal Requirements"). Grantee will repair or replace, at its sole cost and expense, any damage to the Property or any improvements thereon caused by the installation and construction of the Drainage Improvements and return the Property to substantially the same condition as existed prior to such damage, with the exception of the alterations within the Easement Parcels as permitted by Section 1 hereof. 3. Restrictions on Use of Easements During Certain Periods. Notwithstanding anything herein to the contrary and for so long as the Tenants in Common are the owners of the Property and bound by the terms of the Tenancy Agreement, Grantee (and its employees, agents, contractors and consultants) shall not enter upon the Easement Parcels between September 15 and December 15 of each year during the term hereof without in each instance obtaining the prior written consent of the 129072 3 manager appointed by the Tenants in Common (currently Upgrala Management, having the address and phone number set forth in the notice provisions hereof), except in the event of an emergency, in which case Grantee shall use reasonable efforts to contact such manager telephonically. 4. Reservation by Tenants in Common. Grantors hereby reserve to the Tenants in Common the right to use the Permanent Easement Parcels for any use that is not inconsistent with the full and complete enjoyment of the rights and easements afforded Grantee described in this Agreement. 5. Maintenance. The Drainage Improvements and the Easement Parcels shall be maintained and repaired by Grantee in accordance with all Legal Requirements and shall provide for erosion control of any open swales or ditches comprising the Drainage Improvements. 7. Modification. This Agreement may not be modified or amended unless such modification or amendment is signed by Tenants in Common having at least sixty-six and two-thirds percent (66-2/3%) of the Tenant in Common interests in the Property and by Grantee. 8. Indemnification. Grantee shall defend, hold harmless and indemnify the Tenants in Common and their successors and assigns from and against any and all claims, demands, liabilities, and expenses, including reasonable attorneys' fees, arising from use of the Easements or from any act permitted, or any omission to act, in or about the Easement Parcels by Grantee or Grantee's agents, employees, invitees, customers or contractors, or from any breach or default by Grantee under this Agreement. In the event any action or proceeding shall be brought against Grantor by reason of any such claim, Grantee shall defend the same at Grantee's expense. However, nothing in this Agreement constitutes a waiver by the Grantee of any statutory or common law, defenses, immunities, or limits on liability. The obligation of the Grantee under this section cannot exceed the amount that the Grantee would be obligated to pay under the provisions and limitations of Minn. Stat. Chap 466. 9. Notices. Notices or other communication hereunder shall be in writing and shall be sent certified or registered mail,return receipt requested, or by overnight or same day courier service, or personal delivery. Notice shall be deemed given upon receipt or refusal to accept delivery. Each party may change from time to time their respective address for notice hereunder by like notice to the other party. The notice addresses of Grantors and Grantee are as follows: Grantors: c/o Upgrala Management Company 1730 Plymouth Road, Suite 102 Minnetonka, MN 55305 Attn: Charles Moos Telephone: 952-512-0211 With a copy to: Malkerson Gilliland Martin LLP 220 South 6th Street, Suite 1900 Minneapolis, MN 55402 Attn: Kathleen M. Martin 129072 4 Grantee: City of Eden Prairie 8080 Mitchell Road Eden Prairie, MN 55344 Attn: Director of Public Works 10. Miscellaneous. This Agreement shall be binding upon the parties hereto and the Tenants in Common, together with their respective heirs, executors, administrators, personal representatives, successors and assigns, and shall run with title to the Property. The laws of Minnesota shall govern the interpretation, validity, performance, and enforcement of this Agreement. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Invalidation of any provision of this Agreement, in whole or in part, or any application of a provision of this Agreement by judgment or court order shall in no way affect other provisions or applications. 11. Warranty of Grantors. Grantors warrant they collectively are the owners of at least sixty-six and two-thirds percent (66-2/3%) of the interests of the Tenants in Common in the Property and have the lawful right and authority to convey and grant the Easements herein granted. [Remainder of Page Intentionally Left Blank; Signatures Follow] 129072 5 GRANTEE City of Eden Prairie By Phil Young Its Mayor By Scott Neal Its City Manager STATE OF MINNESOTA ) ) ss COUNTY OF HENNEPIN ) This instrument was acknowledged before me this day of , 2009, by Phil Young and Scott Neal, the Mayor and City Manager, respectively, of the City of Eden Prairie, on behalf of said Municipal Corporation. Notary Public This instrument drafted by: Kristy L.Warnen,Esq. Gregerson,Rosow,Johnson&Nilan,LTD 650 Third Ave South, Suite 1600 Minneapolis,MN 55402 129072 GRANTOR Steven R.W. Bush Leslie Bush STATE OF MINNESOTA ) ) ss COUNTY OF ) This instrument was acknowledged before me this day of , 2009, by Steven R.W. Bush. Notary Public STATE OF MINNESOTA ) ) ss COUNTY OF ) This instrument was acknowledged before me this day of , 2009, by Leslie Bush. Notary Public 129072 7 GRANTOR Richard E. Larson STATE OF MINNESOTA ) ) ss COUNTY OF ) This instrument was acknowledged before me this day of , 2009, by Richard E. Larson. Notary Public 129072 8 GRANTOR Charles N. Arnfelt STATE OF MINNESOTA ) ) ss COUNTY OF ) This instrument was acknowledged before me this day of , 2009, by Charles N. Arnfelt. Notary Public 129072 9 GRANTOR Bert A. Notermann STATE OF MINNESOTA ) ) ss COUNTY OF ) This instrument was acknowledged before me this day of , 2009,by Bert A. Notermann. Notary Public 129072 10 GRANTOR Willette Family, LLLP, a Minnesota limited liability limited partnership By Its General Partner STATE OF MINNESOTA ) ) ss COUNTY OF ) This instrument was acknowledged before me this day of , 2009, by the general partner of the Willette Family, LLLP, a Minnesota limited liability limited partnership. Notary Public 129072 11 GRANTOR Charles M. Moos STATE OF MINNESOTA ) ) ss COUNTY OF ) This instrument was acknowledged before me this day of , 2009, by Charles M. Moos. Notary Public 129072 12 GRANTOR Timothy H. Tucker STATE OF MINNESOTA ) ) ss COUNTY OF ) This instrument was acknowledged before me this day of , 2009, by Timothy H. Tucker. Notary Public 129072 13 GRANTOR Millice M. Saxon STATE OF MINNESOTA ) ) ss COUNTY OF ) This instrument was acknowledged before me this day of , 2009, by Millice M. Saxon. Notary Public 129072 14 GRANTOR Paul Gabbert STATE OF MINNESOTA ) ) ss COUNTY OF ) This instrument was acknowledged before me this day of , 2009, by Paul Gabbert. Notary Public 129072 15 GRANTOR Elizabeth M. Westerberg STATE OF MINNESOTA ) ) ss COUNTY OF ) This instrument was acknowledged before me this day of , 2009, by Elizabeth M. Westerberg. Notary Public 129072 16 GRANTOR Steven T. Gabbert STATE OF MINNESOTA ) ) ss COUNTY OF ) This instrument was acknowledged before me this day of , 2009, by Steven T. Gabbert. Notary Public 129072 17 GRANTOR Marquette Properties, Inc., a Minnesota corporation By Its STATE OF MINNESOTA ) ) ss COUNTY OF ) This instrument was acknowledged before me this day of , 2009, by , its on behalf of Marquette Properties, Inc., a Minnesota corporation. Notary Public 129072 18 N O J N r �,` •}i �` \�� �� RIVERVIEw RD. - _-' Y- ` • • _ �- RIGHT-OF-!AY - --- _ - 1 _ mil^ _ RIVERVIEW RD. -, `I '1I i _ N 69°FO' 4a�� w 'm- — _- _ -- 271.34 AD r � --- - �� f• � --.I—-- r a'_ -o v — _ lit 21Th - i ' RIVERVIEW NO. RICHT-OF-►0.Y U�. Q co 1,‘,.._ J,„ N.,.) 7 fI— \ . x . _. ___ � �eea I cS; ,.. . .. s. Irp H F+., _i o`6__IA-_ '. \ 14- a'0 CA) VP 04 to W FF.r! D 1 r O V ICI a PERM ENT DRAINAGE 1AD V:// 2 m AND ILITY EASEMENT _ j w r . • Si' o N BS 20' 48" w so.D 1 1-1 Jseat* feet WETLAND RDIJNDARY •4,,' 011 Parcel I Permanent Easement Parcel 1 Cc...,1:2Nyk,Le, City of Eden Prairie Erosion Stabilization Study Joh D 6205 7121f2D09 N O J N P 1 \\r I • CT--. -- ,,,,r,_,,,, R I V E R V I E W ROAD AD rri-N.1) 1 33 1 1 5" ' TO S I M '—EXIST. R/W C ' CrJ 16- ' o O ‘tv l II ifi pfr, . et CO eDE :0r01111 255 E b o. ..i(- n 1 x n A S tll C7 i / I a mo 0 ]a 6p N m T.E E. a�o��,aa. fr SRFParcel 1 Temporary Easement City of Eden Prairie Parcel 1 Erosion Stabilization Study Jab 4E205 EXHIBIT C Drawing of Permanent Easement Parcel 2 RIVERVIEN ftG. -• ___ RIGHTGFNAT .._.\/_-- __. _ RIVERVIEW RD. M M no �RLVERVIEMrFM. — 1 r9 RLGHT-OF-NAY PERMANENT — - 17RA�HAGE AND UT I ITY • `co EAS WENT n eye • i -- ry og a _ Fi I ,� i r710 EA Lc ..IO.5' oI RIPHAP w BASIN [9V 'elm ` 2G' L (--- ---.)2_..) IrciYlirk W io ro m o �i� r r Fri- .r A A. A A �� x SI? Parcel 2 Permanent Easement rea.n:re[:a.wr��. City of Eden Prairie Parcel 2 Erasion Stabilization Study Job 4 8266 Tf2112669 1 129072 21 N O I J N i f rj /77 X / ii d r 4 ----------- -,„„) r - RIVERVIEW ROAD o scare in rest — y eb t I ail _ m 48 ori:,*A I I I r" if/ — _ .4 N f —EXIST. Raw al,..4.2( &,,2 ril .. . N l -.-4... eD eD o' -,..________ T.E. '..r b m 4 i INGRASS LAKE 4 N 70, 5RFParcel 2 Temporary Easement c.....c,— City of Eden Prairie Parcel 2 Erosion Stabilization Study Job 03205 N O J lJ 053.2311622430002 I L I151-26116223w00,• 11111 0511E11622490004 053.20 11 6Z.4.10004 CM-1311 6 22 2 1 6W Ill �I/� 053.3311622220003 1 et Riverview Road 771ft Parcel#1 t—Parcel#2 — M y 0913311fi27210003 ry l J 053-3311622113003 E "r y / ("-- Az 1. ... O�t331162211 L001 et 0 4 Lake Boundary 0 "L:3 Legend " Ditch A - Delineated Wetlands \i",—__ ...---- .-- Temporary Easement —'arcels 0 100 200 400 1—I. 1 heel ® GENERAL EASEMENT LOCATION MAP Eden Prairie Erosion Slal0lzaiion'&2 Figure MEM Ciryaf Eden Praine CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar August 18, 2009 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: VIII.G. Stuart Fox, Parks and Natural Award Bid for Amsden Way Sidewalk Resources Manager, Parks and Reconstruction to CurbMasters Inc. Recreation Motion Move to: Award the contract for Amsden Way, Sideway Reconstruction to CurbMasters Inc. in the amount of$93,590.00 for replacement of the existing six foot wide bituminous trail with a new five foot wide concrete sidewalk along Amsden Way from Franlo Road to Anderson Lakes Parkway. Synopsis The City advertised for the replacement of the six foot wide bituminous trail along the west and south sides of Amsden Way from Franlo Road to Anderson Lakes Parkway. Specifications for the work were prepared and the City received bids from three contractors. The work includes replacing 2,780 lineal feet of existing 6 foot wide trail with new five foot wide concrete sidewalk, the replacement of 14 driveway approaches and installation of thirteen pedestrian/handicap ramps at various roadway crossings. Background The existing trail is over 25 years old and is in extremely poor condition. In 2008 this trail segment was one of the lowest rated sections in our city-wide trail and sidewalk assessment that was done by GoodPointe Technology. The trail it is too narrow for surface treatment by any seal coating machinery. The replacement of the bituminous with a similar six foot wide trail cannot be accomplished due to the narrow road right of way and many obstructions for paving equipment. The staff determined that conversion of the trail to a five foot wide sidewalk would best fit the available space and the character of the neighborhood. A similar approach has been done in several neighborhoods throughout the City when it was time to replace narrow bituminous trails. The money for doing this sidewalk reconstruction comes from the Capital Improvement Project funding in the Public Works Department for the reconstruction and new construction of trails and sidewalks along road right of ways throughout the City. Bid Summary and Recommendation The summary of the bids submitted is as follows: CurbMasters,Inc. . $93,590.00 Kamida, Inc. $94,369.50 R-Star Enterprises, Inc. $96,624.00 Staff estimate for this project, based on 2008 bid/quote information, was $118,000. Each of the submitters met the guidelines as detailed in the bid specification and staff recommends the contract be awarded to CurbMasters, Inc. The sidewalk replacement project work will begin in mid-September with completion by early October. City staff will be restoring the private property lawn areas. Attachments Amsden Sidewalk Project Location Map Amsden Way Sidewalk Project r MI , Illt/ wirit ,.. . . 4' • ill `31 ,. .- ier fo\ 0 visifik, 111 i; ,, ,c7„,ft. ,,, N.\\,,di _ 1 ,„ .111 i i _ . Apo . oow_ . _ , , i., , i \I it* 4P- i 4V ,,,_,.,,,..„,, 1. t„ ,, F.111 fi/ •1;,.,_ \_ . �c ir $ . I IC;tints OSS —.-- 0 =fi north T no scale CITY COUNCIL AGENDA DATE: August 18, 2009 SECTION: Consent Calendar DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: VIII.H. Office of the City Manager Approve Contract with Ceridian Corporation as a Karen Kurt, Human Resources Human Resources Information System (HRIS) and Manager and Sue Kotchevar, Payroll Service Provider. Finance Manager. Requested Action Move to: Approve the Contract with Ceridian Corporation as a Human Resources Information System (HRIS) and Payroll Service Provider. Synopsis In the software study conducted by Virchow Krause in 2007, HRIS/Payroll was identified as an area where additional value could be gained if the City were to reevaluate the LOGIS relationship. The City issued a Request for Proposal (RFP) for HRIS/Payroll software services in late April. Six vendors responded to the RFP and four were invited onsite for an in-depth interview and software demo. After additional software demonstrations, client reference checks and a client site visit, the City has selected Ceridian Corporation to provide this important service. Ceridian is based in Minneapolis and has over 3000 clients nation-wide, including 19 public sector clients. With this move, the City of Eden Prairie would be the first public sector organization in Minnesota(with over 25 employees) to contract this type of service to the private sector. Ceridian's HRIS and payroll services would provide greater functionality at the same cost of the licenses for the City's current software products. Ceridian is offering a three year contract, with no price increase in the second year and a cap of 3.5% in the third year. The Information Technology Division has funds reserved in the 2009 budget to cover the implementation costs associated this project. Ceridian Current Software Implementation Costs Estimated $65,000 Ongoing Costs JD Edwards/LOGIS (Payroll) - $60,000 Taleo (Career Center) - $7,000 People Trak(HRIS) - $2,000 Estimated $70,000 Total- $69,000 Ceridian's software would offer the following additional functionality: • Integrated HRIS, payroll, time and attendance and career center modules, thereby eliminating the need for duplicate data entry, • Scheduling features, time-off workflows, and built in overtime rules within Time and attendance, • Employee self-service which will allow employees to request time off, update dependents, change their address, change their tax deduction or to enroll in benefits online, • Manager self service which will allow managers to approve time off, hire staff, view compensation histories and to run reports online, • 24/7 web-based access from any location, and • Ceridian is responsible for hosting, software maintenance and updates, data storage, and disaster recovery. Ceridian's payroll services would provide the following services that are currently performed by City staff: • Tax preparation and filing, • Wage garnishments, • New hire reporting, and • Final check processing and bank deposits. The objective of this initiative is to improve the performance and reduce the overall cost of our payroll and administrative overhead functions. We are anticipating the greatest gains from the improved functionality will come in the Human Resources area, with lesser gains also achieved by line managers and payroll functions. It should be noted that a move to Ceridian will not eliminate a need for an in-house payroll specialist. The City has a very complex payroll which requires extensive auditing prior to any outside processing. However, full implementation of the Ceridian product will allow the Human Resources Division to eliminate a 0.5 FTE position that is currently vacant. This personnel reduction will save approximately$35,000 annually. Attachments Contract Agreement for Products and Services This Agreement is between City of Eden Prairie("Client"), located at 8080 Mitchell Rd,Eden Prairie,MN, 55344, United States of America, and Ceridian Corporation and/or its subsidiaries("Ceridian"),located at 33 l 1 East Old Shakopee Road,Minneapolis,MN 55425,each of which may be referred to in the singular as"Party"or in the plural as"Parties". 1.Term and Termination: This Agreement will become effective when signed by Client and accepted by Ceridian (the"Effective Date"). It will continue for an extended term of 36 months beginning with the Effective Date(the "Extended Term"). Upon expiration of the Extended Term,the Agreement will remain in effect until terminated by either Party upon 90 days prior written notice.If either Party does not materially meet its obligations as set forth in this Agreement within 30 days after receiving written notice of the breach,then the other Party shall have the immediate right to provide written notice of termination of this Agreement. If Client cancels the Agreement prior to the expiration of the Extended Term, it will pay a cancellation charge equal to 50%of the average monthly charge(computed based on the charges for services provided to Client during the 3- month period preceding cancellation)times the number of whole or partial months between the date that the cancellation is effective and the expiration date of the Extended Term. However,no cancellation charge shall be due in the event Client terminates this Agreement for cause in accordance with the previous paragraph. 2.Services: Ceridian shall provide the following service(s): Ceridian HR/Payroll, Tax Filing, Direct Deposit, Ceridian Check, SeeMyW2, Self Service, Wage Disbursements, Time and Attendance, Recruiting Services, Professional Services and Professional Services("Services").Any services provided to Client that are not within the scope of this Agreement will be mutually agreed upon between the Parties and subject to the terms and conditions of this Agreement.Any exception fees, late fees, or miscellaneous fees will be subject to the terms and conditions of this Agreement and billed at Ceridian's then current price. The Client acknowledges and agrees that certain Services or parts thereof may be subcontracted by Ceridian to third party contractors, including Affiliates of Ceridian.Regardless of any suhcontract with a third party contractor, Ceridian shall remain solely liable for all of its obligations hereunder and Ceridian will be responsible for the performance or nonperformance of its third party contractors as if it were Ceridian's performance or nonperformance. Article 2, in its entirety, shall set forth the obligations for each Service listed above and any additional obligations that may apply to one or more of the Services listed. 2.1. Ceridian HR/Payroll: Ceridian shall provide Client with Ceridian HR/Payroll from one or more operations facilities.Ceridian HR/Payroll provides Client with the following functions for one fee as set forth in this Agreement:human resources/payroll processing,payroll tax filing,and payment solutions. Client's use or non-use of any particular function does not impact its availability or Client's fee. Implementation is complete when Client accepts the results of the implementation and approves the initiation of Services. Ceridian shall(a)set up and implement Services with the data provided by Client;(b)complete activities required to prepare services for Client's use, including loading Client's human resources and payroll data into the human resources/payroll systems database;(c)provide Client with documentation or reference manuals, which may be in hardcopy or electronic format and may be corrected or updated from time to time;(d)deliver payroll vouchers and reports to Client;and(e)offer a free Start-up Training Package comprised of a designated number of seats at a regularly scheduled training class held at any Ceridian training facility as described in Ceridian's current training catalog at the time of scheduling.A seat is defined as a single incidence of attendance at a class by a qualified participant.The designated number of seats is valid up to 12 months after the first live Payroll processing with Ceridian.Training is fee-based upon depletion of the included seats or 12 months after the first live Payroll processing with Ceridian. Client-exclusive training,onsite training and/or customized training is not included in the Start-up Training Package,but will be quoted upon Client request, as applicable at the then current Ceridian rate. Ceridian is not obligated to commence providing Services until receipt of sufficient information to determine Client's paid and accrued taxes and liabilities. If Ceridian corrects any matters existing prior to the first Check Date or performs any other service not expressly identified in this Agreement,Client will pay Ceridian additional fees and charges computed on the basis of work performed by Ceridian. Client shall(a) deliver data and information required to process Client's work in enough time to allow Ceridian to complete processing in accordance with the schedule mutually determined by the Parties. Electronic transfer of such data and information to Ceridian premises will be at Client's risk and expense; (b)review and audit all payroll data,reports,checks,and other materials and notify Ceridian of any discrepancies in such materials within 10 days after receipt,and in any case before using them;(c)require personnel to successfully complete Ceridian's training programs prior to implementation of Services; (d) actively participate in auditing and validating service set-up;(e) follow the instructions contained in the applicable reference guides and software documentation and pay for all expenses incurred by Ceridian as a result of Client errors or omissions; and (f)review the current training catalog,enroll in the recommended classes,and attend the classes within the designated timeframe. 2.2. Tax Filing: Ceridian shall(a)prepare,deposit,and file Client's payroll tax returns for those federal, state and local jurisdictions supported by Ceridian's payroll system and listed by Client on Ceridian's Payroll Tax Filing Authorization Form;(b)provide Client with a quarterly tax statement for each Federal Employer Identification Number(FEIN)processed by Ceridian. Said statement will include a summary of tax liabilities reported throughout the quarter,an account reconciliation and reports of the information filed at quarter end;(c)respond to all agency inquiries pertaining to jurisdictions processed by Ceridian;(d) prepare and file employer W2s and annual reconciliation forms in the formats required by each taxing agency provided that Ceridian has provided tax filing services for each Client FEIN for the entire calendar year. If Ceridian did not provide tax filing services for each Client FEIN for an entire calendar year, Ceridian will prepare employer W2s and annual reconciliation forms in the formats required by each taxing agency provided that Client provides Ceridian with the required mid-year and/or mid-quarter data in the time frame and format required by Ceridian;(e)collect funds to cover the total amount of payroll tax liabilities transmitted by Client;and(f)be liable for tax filing penalty and interest charges to the extent such charges were caused by Ceridian. Prior to the first Check Date, Client sball(a)provide Ceridian with(i)executed Power of Attorney forms; (ii)completed Funding Authorization Form;and(iii)sufficient information prior to implementation in order to enable Ceridian to determine paid and accrued taxes and tax liabilities;and (b)upon receipt of any and all records of tax disbursements,examine the disbursements for validity and accuracy according to Client's records and notify Ceridian of any inaccuracies within 10 days of receipt. Ceridian is not responsible for any matters existing prior to the first Ceridian Check Date.Client shall assist Ceridian in responding to tax agency inquiries or in processing amendment requests by providing the information and funds, if applicable,necessary to meet agency requirements. Client shall retain records according to the schedules established by taxing authorities for Client. Ceridian has no responsibility or liability for maintaining or retaining records on behalf of Client. 2.3. Payment Solutions(Direct Deposit and Ceridian Check,as applicable): Initial payment solutions setup will include processes to obtain,set up,and test both Client and Client's employees'bank connectivity. Initiation of payment solutions services shall be subject to Ceridian's approval of Client's credit. For all payment solutions services Client shall(a)transmit to Ceridian the payroll data and information that Ceridian requires no later than three business days prior to the date that payroll deposits are to be made to Employee Accounts or paychecks are to be issued to employees(the"Check Date"or"Liability Date");(b) require that Client's employees complete and sign any account funding authorizations or other documents necessary for Ceridian to provide payment solutions services;(c)fully find Client Accounts in a timely manner in accordance with this Agreement and Funding Authorization;and (d)authorize the initiation of debit entries and the debiting of the Client Accounts in the amount and on the date specified,and ensure such authorization is operative at the time of transmittal and debiting of the Client Accounts. Direct Deposit: Ceridian shall submit,to various funds transfer networks,data in the form required for the electronic crediting of payments to the designated bank accounts of Client's employees("Employee Accounts")and the debiting of those payments from the Client's authorized accounts("Client Accounts"). Ceridian shall process stop payments and direct deposit reversals upon Client's written request. Client shall ensure that each of Client's employees utilizing Ceridian Direct Deposit(a)has authorized the initiation of credit entries and the crediting of the Employee Account;(b)has authorized the debiting of the Employee Account through a file reversal in the event of a returned item from Client Account or any funding deficiency by Client and(c)such authorizations are operative at the time of transmittal and crediting/debiting of the Employee Account. Ceridian Check: Ceridian shall(a)create negotiable paychecks to the order of Client's employees drawn on a Ceridian bank account("Ceridian Account"). Each paycheck will be printed on Ceridian check stock with a Ceridian officer's signature and Ceridian logo using the check date and amount provided by Client;(b) provide a report identifying un-cashed items 30 days or older;(c)process file reversals(if checks are not printed)and initiate stop payment orders for paychecks upon Client's written request;and (d)process stop payments for paychecks aged 180 days or older and contact Client to arrange return of the related funds. Client is responsible for contacting payees to resolve payment of any voided checks and reimburse Ceridian for any losses and fees incurred by Ceridian in circumstances where Ceridiau honors Client's request to initiate a stop payment order and issues a replacement check,but the check originally issued is subsequently presented for payment by a holder in due course. Client shall assume responsibility for any fraudulent acts or misconduct by Client's employees and agents with respect to Ceridian checks and Ceridian Account. 2.4.SeeMyW2: Ceridian shall provide,operate and maintain the computer equipment and operating system software required for the SeeMyW2 web site,application and environment;(2)provide W-2 information from Ceridian payroll applications on Ceridian's private and secured servers for the purpose of making this information available to Client and,if applicable,Client's employees for accessing,printing and importing W-2 data into tax preparation software from the SeeMyW2 web site;(3)provide up to five years worth of W-2 data through the SeeMyW2 web site;(4)provide the SeeMyW2 Service Level option elected by the Client;(5)provide reasonable telephone support for the SeeMyW2 web site during the business hours established by Ceridian(excluding holidays);and(6)provide promotional materials templates(if applicable)and updates and replacements to the documentation that Ceridian generally furnishes to Ceridian clients with the SeeMyW2 Service. Ceridian will provide the SeeMyW2 Service to Clients receiving Ceridian payroll services.The SeeMyW2 Service will be automatically terminated upon termination of Ceridian payroll services.The SeeMyW2 Service Level options available to Client include: (a)Employer Level Service—employer may access,save, print and reprint employee W-2s from the SeeMyW2 web site. (b)Basic Level Service all features of the Employer Level Service option plus employees may access their W-2s and import W-2 data into tax preparation software through the SeeMyW2 web site. (c)Choice Level Service—all features of the Basic Level Service option plus the employer has the ability to create and submit W-2c forms. The SeeMyW2 Service shall be delivered through a Ceridian hosted web application, available to Client and,depending on the service level option elected by Client, its employees 24 hours a day,7 days a week (excluding any down time for maintenance). Client shall(I)Enroll and select a service level option for the SeeMyW2 Service using the self-service enrollment feature on the SeeMyW2 web site;(2)if applicable,promote the availability of the SeeMyW2 web site to Client's employees using promotional materials templates provided by Ceridian; (3)control employer password administration for authorized users;(4)if applicable,control employee password administration for employees and have various options for obtaining employee level passwords including, but not limited to,employee self-registration and employer provided user names and passwords;(5) responsible for accurately completing Client's payroll using one of Ceridian's payroll applications. Ceridian is not responsible for any inaccuracies or delays in processing resulting from Client's inaccurate files or data;(6)if applicable,responsible to communicate to employees if posted data on the SeeMyW2 web site is found to be inaccurate;and(7)provide,operate and maintain any computer equipment and operating system software necessary for Client and, if applicable, its employees to access the SeeMyW2 web site. 2.5.Self Service: Ceridian Self-Service("Self-Service")provides Client's employees with access to key human resources and payroll data entry processes. Available through Ceridian Hosted Services,this completely outsourced self-service solution integrates with Ceridian's software. Self-Service includes the following functionality:Employee Self-Service,Manager Self-Service,Administration and Configurable Workflow. Self-Service will be provided from one or more operations facilities. Initial set up includes all activities required to prepare the Self-Service application for Client's use including a process for loading Client's human resources and payroll database(the"Client Database")for use with Self-Service. Ceridian shall(a) install a copy of the application software on Ceridian's hosted application server for Client's exclusive use during the tens of this Agreement;(b)make qualified personnel available to set up the servers,database, application and network connectivity;(c)assist Client with server/user security procedures and addition of administrative user accounts;(d)maintain the application software and apply changes and upgrades to the application software from time to time;and(e)support Self-Service via telephone,electronic mail and/or website reference. Access to Ceridian's designated web site will be made available to Client's technical personnel supporting Self-Service. Client shall,as appropriate, create,delete,and modify individual employee user accounts, including the security level access of each of these accounts. Implementation will be considered complete when Client accepts the results of the implementation and approves the initiation of the Self-Service installation. 2.6. Wage Garnishment Disbursements: Ceridian agrees to provide Wage Garnishment Disbursement services in accordance with the terms and conditions contained in this Agreement. Ceridian shall: (a)setup, implement and test wage garnishment disbursement services with the data provided by Client;(b)provide an implementation resource; (c)provide documentation or reference manuals,which may be in hardcopy or electronic format and may be corrected or updated from time to time. Ceridian is not responsible for providing additional professional services including implementation or support of software customizations,except where Ceridian has agreed in writing to provide such services; (d)timely prepare and deposit Client's wage garnishment liabilities for those federal,state,and local payment processing units and individual third parties supported by Ceridian, including any individual third party with a valid address in the United States or Canada to which an employee of Client owes a debt and has agreed or is compelled by appropriate governmental authority to resolve via garnishment of employee's wages. Such disbursements will be made in US dollars;(e)collect funds to cover the total amount of wage garuislnnent liabilities transmitted by Client in accordance with the terms set forth in the Funding Authorization;and(1)provide a monthly statement of account activity to Client summarizing funds collection and disbursement transactions completed during the prior calendar month. Ceridian is not responsible for providing additional administrative services including agency research,account reconciliation,and wage garnishment data input and adjustments except where Ceridian has agreed in writing to provide such services. Client shall: (a)provide a completed service implementation package in accordance with the schedule mutually determined by the Parties; (b)actively participate in auditing and validating service setup;(c) designate a primary point of contact responsible for coordinating service delivery;(d)provide wage garnishment data including,without lhnitation,wage order data,wage garnishment amounts,payee addresses, bank account information in a Ceridian approved format as outlined in user manuals,customer communications and service advisories before 12:00 p.m. Pacific Time two(2)business days prior to the check date; (e)provide funds to cover the total amount of Wage garnishment liabilities transmitted by Client in accordance with the terms set forth in the Funding Authorization;(f)notify Ceridian of any unscheduled and/or special payroll runs that will impact wage garnishment data including without limitation,void,manual,and/or adjustment transactions;and(g)correct any errors before transmitting Client's next payroll or wage garnishment data transmission.Any penalty or other charges that result from incorrect,incomplete,and/or changed wage garnishment data received by Ceridian from Client,or from Client's changed information that it has not disclosed to Ceridian in a timely manner is Client's sole and exclusive responsibility. 2.7.Time and Attendance 1. Ceridian's Time and Attendance Essential and Business services will collect time information from data collection terminals("terminals"),online Web Clocks or tipnesheets,as elected by Client.Ceridian,through its third party provider,will track time information from exempt and non exempt employees in compliance with Client's pay practices that are communicated to Ceridian.Client's election of either Time Essentials or Time Business is reflected on Exhibit A 1. 2. Training: Training for Client for Time Essentials and Time Business will be provided via Web Based Tutorials. (A) Ceridian's Obligations: Provide Client with access to Web based tutorial training for Time Essentials and Time Business. All implementation services for Time Essentials and Time Business clients are performed remotely.Any on-site support will be at standard Ceridian billing rates plus reasonable travel expenses.Ceridian will provide a"train the trainer"approach. (B) Client's Obligations: (1)Complete the Web based tutorial training for Time Essentials or Time Business within 6 months of the initial Client planning meeting. Client will utilize configuration questionnaires(templates)to set-up the system,with Ceridian's assistance,after the training courses have been completed.(2)Client is responsible for training Management/Supervisors and employees. (3)Provide test scripts,(4)Run test scripts,(5)Sign off on tests,(6)Sign off on the Setup Application Manager ("SAM")validation report and requirements,(7)Assign pay policies to employees. 3. Training at Client Location: Training at Client location is provided at an additional fee.The fee is quoted per Client based on Client needs. (A) Ceridian's Obligations: (1)host trainings at a Client designated location for the agreed upon fee plus reasonable travel expenses;(2)provide electronic study materials and documentation; (B) Client's Obligations: (1)provide adequate space and equipment based on the training request;(2)pay all fees and expenses associated with Ceridian representatives' attendance at any training courses. 4. Updates and Upgrades: Updates are patches, enhancements or other code or programs that improve the base methodology of Client's version of the software. Upgrades are significant enhancements in usability and functionality. All costs for software upgrades and updates are included in the monthly maintenance fees.Upgrades and updates are defined further as changes to the base product that apply to all hosted customers. (A) Ceridian's Obligations: Provide Updates and Upgrades to Client. 5. Installation of purchased or rental terminal(s)from Ceridian: (A) Ceridian's Obligations: (I)Deliver hardware to Client in good,working condition no less than one week prior to the scheduled installation of terninal(s);(2)make all corrections necessary to bring terminal(s)into compliance with the applicable specifications;and (3) if the Client has purchased a premium maintenance extended warranty for the clocks,provide emergency replacement of terminal(s)that Ceridian stocks. (B) Client's Obligations: (1)Make available a suitable place of installation,adequate power and surge protection,a correctly configured host computer, and cabling. Client is responsible for location and mounting of the terminal in compliance with the Americans with Disability Act(ADA)and other accessibility laws and all building codes."(2)Install and test terminals;and(3)within fifteen days of the receipt of terminal(s),notify Ceridian of any material defect in terminal(s).If Client does not send written notice of the occurrence of a material defect within such fifteen business day time period,Client will be deemed to have accepted terminal(s);(4)Customer must return any rented hardware within 15 business days upon termination of this Agreement.Clock rental fees will continue to accrue until all hardware has been returned. (5)Customers have the option to return rental or capital purchased hardware so long as the hardware is unopened and unused.Any returns not meeting the above conditions are not eligible for a refund of fees paid. (6)Rental fees will begin to accrue immediately upon receipt of the rented clocks. Rental fees are applicable for the duration of time during which Client has the clocks in their possession. Rental fee accrual will not be terminated without an approved Return Materials Authorization("RMA") and will continue until all clocks are received. If Client places the implementation on hold for any reason, clock rental fees will continue to apply. 6. Warranty: Ceridian warrants that it has the right to sell terminal(s)to Client.The terminal manufacturer provides a warranty for the terminals. Extended manufacturer warranties may be purchased by Client. Ceridian is not responsible or liable for damage, malfunction,or performance failures resulting from changes made to terminal(s)after acceptance or damage caused by the misuse,physical abuse, improper operation,the environment or other causes beyond Ceridian's exclusive control,or any malfunction not reported to Ceridian within fifteen business days of Client's first knowledge of the malfunction. 2.8.Recruiting Services: Ceridian Recruiting Solutions("CRS")will provide Client with the Ceridian Recruiting Solutions("CRS")service and access to associated web-based software("Service").Ceridian Recruiting Solutions is an Internet-based Applicant Tracking system that manages the requisition process, job postings to Client's corporate website,direct applicant submission through the website to the database, and automated contact management, accessible through a unique user name and password. Implementation: CRS shall(a)provide implementation services in preparation for Client's use of the Service which shall be facilitated by an implementation consultant via telephone and electronic communication;(b)send a welcome email to Client which shall include a contact list with telephone numbers for technical support,user manual,and system set up instructions;and(c)send access information to Client via email once the Service is configured. The job board and candidate application web pages for Client's website will be created to include Ceridian's powered by Ceridian logo. The career page will be configured to be pulled into Client's frameset. Client shall(a)provide reasonable access to functional and technical personnel in order to set-up the Client's system;(b)provide a single point of contact for project management during system implementation;(c)enter system data unless otherwise stipulated in this Agreement;(d) attend implementation meetings when mutually agreed upon. Client shall have a(15)business day acceptance period upon system delivery in which to document,in writing,any issues with the system. In the absence of communication from Client during this acceptance period,the system will be deemed "accepted",and monthly hosting fees will commence. Training: CRS shall(a)provide client with acess to all Web-based training upon completion of Implementation. Such training provides sufficient information about the system to allow users to function within the system. Additional training can be purchased at the then current Ceridian rate. Client Support: CRS shall provide support at the following levels: (a)Phone Support: unlimited hours of toll free phone support per month for up to five (5)named users;(b)Email Support: unlimited email support for up to five(5)named users. Support is provided Monday through Friday,6:00 AM—6:00 PM Mountain Time,excluding U.S.holidays. Client shall(a)provide a single point of contact for technical support escalation;and(b)report errors in a detailed manner,and within a reasonable timeframe. Customization:The application will not be customized. Any changes that cannot be addressed through configuration will be considered customization. Service Availability and Security: CRS will use reasonable commercial efforts to make the software available seven(7)days a week,twenty-four(24)hours a day. CRS does not guarantee uninterrupted access to the Service.CRS shall ensure uptime of 99.5%monthly. Client recognizes and accepts the risks associated with communicating by the Internet. Client also acknowledges that data input by Client will be transferred via the Internet cross border to the United States if Client is using these Services outside of the United States. Services include the following security: every Client has their own database,all data resides behind a hardware firewall,a unique encrypted cookie code is generated for each user and session based on specific user level access permissions. Copies of client's data will be provided to Client upon request at the then cnrrent Ceridian rate. Ceridian utilizes two methods of secure transmission; SFTP to SFTP and SFTP to FTP utilizing PGP encryption. To receive recruiting data Client must provide a secure mechanism to receive the requested data based on one of the methods described above. 2.9. Professional Services: Ceridian shall provide Client with professional services("Services")in accordance with the prices,and terms and conditions contained in this Agreement and in accordance with the project,specifications requirements document("SAS"). Ceridian shall(a)furnish qualified personnel and perform the Services as defined in the SAS;(b)assign employees or subcontractors qualified to perfonn the work; (c)replace or change employees and subcontracts as required;and(d)exercise due professional care and competence in the performance of the Services. Client shall(a)furnish qualified personnel to work with Ceridian personnel in the execution of each SAS; (b)supply adequate resources and information as mutually agreed upon;(c)provide Ceridian with written notice of any deficiencies in the services within 90 days of completion of any individual project;(d)review and accept or reject each deliverable specified hi the SRS within 15 business days of receipt.Each deliverable will be deemed accepted unless rejected in writing within 10 days following delivery. Acceptance shall not be unreasonably withheld. Any rejection shall be in writing and specifically state the manner in which the deliverable is materially defective;(e)notify Ceridian in writing of any request for changes to the SRS; and(f)during the temp of this Agreement and for one year thereafter,Client agrees not to solicit the services of any Ceridian employees who were involved in the performance of the Services. Changes in scope of the SRS made at Client's request and events beyond Ceridian's reasonable control may require changes to fees and estimated completion dates.Any change in the scope of the SRS must be agreed to in writing by both Parties. In the event that performance on the part of either Party is delayed or suspended as a result of circumstances beyond its reasonable control and without its fault or negligence, then the period of performance and term of the applicable SRS shall be extended to the extent of any such delay and neither Party shall incur any liability to the other Party as a result of such delay or suspension. If any delays in Ceridian's performance occur as a result of Client's failure or untimely performance,the term of the applicable SRS shall be extended to the extent of any such delay and Ceridian shall not incur any liability to Client as a result of such delay. If such delays last for 30 days or more, Ceridian shall be entitled to terminate the applicable SRS by giving Client written notice,such termination to be effective on the date indicated in the notice. If Client cancels Professional Services before the project is completed,Ceridian shall bill and Client will pay for the work that has been completed. If Ceridian has completed the project according to the SRS and Client cancels such project,Ceridian shall bill 100%of the fees. If software is provided as part of the professional services,Ceridian grants Client a personal,non- transferable and non-exclusive internal use license for use of custom software developed for Client on either a single computer processor,or local area network,for processing Client's internal company data, or on an additional computer processor solely for the purpose of creating a test enviromnent in which upgrades and customizations can be applied before the custom software is transferred to the primary computer processor. Ceridian shall retain title and ownership to all custom software. Client shall use its best efforts to protect the custom software from unauthorized disclosure,use or copying,shall not reverse- assemble or reverse-compile the custom software and upon termination of the license,destroy or return to Ceridian the custom software and documentation. If maintenance services are available and purchased as part of the Services,Ceridian shall provide telephone support(including Ceridian custom software explanation and troubleshooting). If it is determined by Ceridian's developer that the custom software and/or documentation is defective,Ceridian shall replace such defective custom software and/or documentation. Ceridian shall re-apply custom software that was overwritten as a result of standard system upgrades and provide updates to the custom software as a result of standard system upgrade conflicts.Custom software maintenance services do not include:(a)services which require non-reimbursed travel costs;(b)equipment maintenance services;(c) maintenance or support required as a result of unauthorized use or modifications of the custom software;or (d)system design,significant extensions or new components for the custom software,programming, specification development,or any other services not expressly identified in this Agreement. 2.10. Customization: Customizations will be billed at Ceridian's current customization rate.Ceridian is not required to provide additional professional services, including implementation or support of customizations,except where Ceridian has agreed in writing to provide such services. Unless otherwise agreed to in writing,Client may not perform or engage others to perform any customization. If Client performs any customization without engaging Ceridian to perform the work, Ceridian may immediately terminate this Agreement. Ceridian is not liable or responsible for any customization to the application software performed by Client without engaging Ceridian to perform the work.Ceridian will not guarantee that modifications made by Client will function properly when software updates and upgrades, if any,are applied or that optimal application performance will be met and maintained. 2.11.Exceptions Process: Ceridian shall(a)notify Client of exceptions related to Services including,but not limited to:pre-note rejections,change notifications and employee deposits that are returned due to account changes at the receiving institution(collectively,"Exceptions");(b)notify Client of any errors or other circumstances that result in Ceridian being unable to provide Services and either re-perform Services, when possible or arrange return of unpaid funds to Client as set forth in the Funding Authorization. Client shall(a)correct Exceptions before transmitting data for its next payroll; and (b)reimburse Ceridian for miscellaneous fees as applicable at the then current Ceridian rate. 2.12.Funds Transfer: Ceridian shall collect funds to cover the total amount of Liabilities as defined in and in accordance with the terms set forth in the Funding Authorization which is incorporated into this Agreement in full by this reference.Ceridian shall be entitled to receive all net income generated on any funds collected from Client. Client shall execute the Funding Authorization. 2.13.Third Party Provider: Client's relationship with the third party provider shall be governed by the terns and conditions set forth in this Agreement, including but not limited to Article 11,Limitation of Remedies, and the third party provider shall have no greater liability to Client than Ceridian. 3.Hosted Services: Ceridian Hosted Services will be provided from one or more operations facilities. Hosted Services consists of the use of a hosted environment maintained by Ceridian through which Client may access certain of the Services made available by Ceridian in a hosted envh•omnent,and which is accessible except during the performance of upgrade/update and maintenance functions as set forth herein("Hosted Services"),Client may access the Hosted Services solely for the purpose of receiving the Services purchased by Client hi this Agreement. Ceridian shall(1)prepare the Hosted Services for Client's use;(2)make qualified personnel available to set up the servers,database,shared network and network connectivity needed for Ceridian's application;(3)set up Client's user accounts;(4)ensure 99.5%accessibility per month to Hosted Services,where scheduled downtime is excluded from this percentage. Time required for emergency system maintenance is considered unscheduled downtime; and (5)provide Client with twenty-four(24)hours advance notice in cases of non-emergency prior to restricting access to the Hosted Services. It may be necessary to temporarily restrict access to the Hosted Services without prior notice to protect the integrity of the application and database. Client shall(a)designate primary and alternate technical representatives who will act as the point of contact in establishment of network and ongoing trouble-shooting,and assistance in completing the network connection (whether by wide-area network or Internet);and(b)designate a user representative who will act as the point of' contact for managing user accounts and maintain an up to date list of authorized users. Hosted Services do not include a permanent test environment unless agreed to by the Parties at the fees set forth in the applicable pricing document. Materials,software and hardware: Ceridian retains the right to select and specify software and providers as needed to maintain the Hosted Services. Ceridian shall(1)provide the communication servers,database servers and Internet servers;(2)provide the database,network,and the communications software needed for the transmission of data between individual users' workstations and the network server;(3)provide communications services and interfacing of Service application software in the Hosted Services;(4)maintain and apply minor version upgrades, updates and patches to the Service application software during the term of this Agreement;and(5)maintain Ceridian's operating systems and database, messaging,software and Internet server software in accordance with industry standard practices. Client's possession of Microsoft Office Suite is required for use of the hosted environment. Client acknowledges that it is Client's responsibility to obtain and maintain a valid license for a version of Microsoft Office Suite that is supported by Ceridian's application. Acquisition of this license or any other license required to enable Client's users to access the Hosted Services is not part of the Hosted Services. Customization: (1)"Customization" is defined as adding functionality(including nonstandard or custom reports) not contained in the Hosted Services and/or Service application by using tools that are not delivered as part of the standard Hosted Services and/or Service application;(2)Client shall not perform or permit anyone to perform on their behalf,any Customization without obtaining Ceridian written approval in advance;(3)Ceridian will not support,service,or maintain any Customizations where Ceridian was not engaged to perform the work;(4)Ceridian is not liable or responsible for any Customization performed by Client without engaging Ceridian to perform the work;and(5)Ceridian will not guarantee that modifications made by Client will function properly when software updates and upgrades are applied or that optimal Hosted Services and/or Service application performance will be met and maintained. Database maintenance/Backup: Ceridian shall(1)if Client's database becomes corrupt, restore the data from the most recent back-up. Ceridian will notify Client within three hours of restoration of the data.Client may incur a fee if the corruption was due to Client's repeated action or inaction;(2)perform data back-ups to magnetic tapes or other media on a daily basis and ship tapes to an off-site facility on a weekly basis;(3)deliver an overview of the service interruption plan upon Client's request;and(4)when requested by Client upon termination of this Agreement,provide a copy of the Client's database to the Client on CD-ROM, Secure File Transfer Protocol(SFTP) or other format as mutually agreed upon by the Parties("Acceptable Format").During the term of this Agreement,a copy of Client's database in an Acceptable Format may be purchased by Client. Client shall(1)verify the accuracy of the restoration within one business day of notification,and in any case before using it;(2)repeat the entry of any changes lost between the back-up and restoration times; and(3)maintain the accuracy of the information in the Client database(Ceridian is not responsible or liable for the results of inaccurate data entered or imported into the Client database.) Access to Hosted Services: Ceridian shall(1)make the Hosted Services available to Client through Client's Internet connection. Client shall(1)provide Internet access for Client's users that meets Ceridian's then current recommended configurations and settings. Equipment/Facilities: Ceridian shall make available and maintain the physical facilities and equipment required to provide Hosted Services for Client's nonexclusive use. Client shall(1)make available to and maintain all applicable computer workstations used to access the Hosted Services in accordance with the recommended hardware and software configurations as specified in the then current hardware requirements document for the appropriate application,or as specified by Ceridian's staff;(2)ensure Client users have valid licenses for all workstations and workstation software. Technical Support: Ceridian shall(1)provide technical support services to Client's primary and alternate technical representatives and primary users of the Hosted Services via telephone,electronic mail and/or access to Ceridian's designated web site;and(2)provide Client with periodic usage reports including monthly and historical performance statistics,if requested. Client shall designate a centralized point of contact to act as the primary contact for technical service questions and resolutions. 4. Fees and Payments: Client will pay the undisputed fees set forth in the attached Service Quotation(s)and/or Exhibit A(s), including any applicable taxes. Any disputes raised with respect to fees will be made in good faith within 10 business days of receipt of such disputed invoice.All reasonable,pre-approved and customary travel expenses incurred by Ceridian in support of the Services will be billed at actual cost to the Client. Client's obligation to pay all charges that have accrued will survive any termination of this Agreement. Ceridian may charge a late payment fee in the amount of 1 1/2%per month for delinquent payments made by Client on undisputed amounts. Client agrees to pay late payment fees and any costs of collection.After this Agreement has been in effect for at least 24 months, Ceridian reserves the right to increase prices by giving Client at least 30 days written notice of the change,but prices will not increase by more than 3.5%in any 12 month period. Upon expiration of the Extended Term,Ceridian reserves the right to increase prices annually with 30 days written notice to Client. 5. Confidentiality and Privacy: Except as required by the provisions of the Minnesota Data Practices Act, Minnesota Statutes Chapter 13.Notwithstanding anything stated herein,Ceridian's marking of information as "Confidential"and/or"Proprietary"is not determinative of the classification of data under the Minnesota Data Practices Act.Neither Party shall disclose Confidential Information of the other Party.The receiving Party shall use the same degree of care as it uses to protect its own Confidential Information of like nature,but no less than a reasonable degree of care,to maintain in confidence the Confidential Information of the disclosing Party.The foregoing obligations shall not apply to any information that(a)is at the time of disclosure,or thereafter becomes, part of the public domain through a source other than the receiving Party;(b)is subsequently learned from a third party that does not impose an obligation of confidentiality on the receiving Party;(c)was known to the receiving Party at the time of disclosure; (d)was generated independently by the receiving Party;or(e)is required to be disclosed by law, subpoena or other legal process.Ceridian may transfer Client's Confidential Information to a govermnental agency or other third party to the extent necessary for Ceridian to perform its obligations under this Agreement or if Client has given Ceridian written authorization to do so.For purposes of this paragraph, Confidential Information shall mean any information marked by either Party as "Confidential"and/or"Proprietary", or which, under the circumstances,ought to be treated as confidential or proprietary, including non-public information related to the disclosing Party's business,employees,service methods, software,documentation, financial information,prices and product plans. Ceridian reserves the right to independently use its experience and know-how, including processes, ideas,concepts and techniques developed in the course of performing Services under this Agreement. Ceridian shall appropriately safeguard all Protected Health Care Information("PHI")made available to Ceridian while rendering Services. Ceridian will comply with all laws applicable to its services. 6. Intellectual Property and License to Materials: All materials, including but not limited to fonns(including data collection forms provided by Ceridian),brochures,tip sheets,posters,and online content("Materials") furnished by Ceridian to Client,and any derivatives thereof,as well as,any rights in processes,techniques,trade secrets,know-how,or other intellectual property right related to the Services,now existing or developed during the course of performing the Services,remain the sole property of Ceridian. The Materials provided to Client under this Agreement are licensed(not sold). Client is granted a personal,non- transferable and nonexclusive license to use Materials solely for Client's own internal business use. Client does not have the right to copy,distribute, reproduce,alter,display,or use these Materials or any Ceridian trademarks for any other purpose.Client agrees that its license to use Materials ends on the termination date of this Agreement.Upon termination,Client agrees to destroy Materials or, if requested by Ceridian,return them to Ceridian. 7. Client Representations: Client represents that it is in rightful possession of any data provided to Ceridian,and that the collection,use and transfer of the data to Ceridian are in compliance with applicable domestic and international privacy laws. 8.Data: (a)Disposition: Client shall have complete and unrestricted ownership of any and all data provided to Ceridian by Client("Data").The Data is the property of Client and will not be used for the benefit of Ceridian, or any third party. Ceridian will not be responsible for storing copies of Client's Data and/or records derived from Client's Data("Records")when Ceridian no longer requires such information in order to provide Services to Client. Client shall retain records according to the schedules established by federal,state,or local authorities for Client and Ceridian has no responsibility or liability for maintaining or retaining Records on behalf of Client in that respect. Client will reimburse Ceridian for the costs of producing any Data,Records or other information in Ceridian's possession or control relating to Client's business or employees that Ceridian is obligated to produce in response to a Client request or court order.Upon termination of this Agreement,Ceridian will dispose of Client's Data and Records unless otherwise previously directed in writing by Client. The disposal of Client Data shall be accomplished in accordance with the Security requirements set forth below. (b)Accuracy: Client is responsible for maintaining the accuracy of all Data and 'information it furnishes to Ceridian and has an ongoing obligation to maintain and verify the accuracy of such Data and the Records provided to Client by Ceridian. Client is responsible to communicate to employees if posted Data is found to be inaccurate.In addition, Client agrees to follow the instructions contained in the applicable reference guides, if any, and to provide Data in the format reasonably required by Ceridian. Any changes in services or changes that affect the information provided by Client to Ceridian subsequent to the commencement of the Services by Ceridian must be communicated in writing within seven(7)business days of the change. Ceridian will not be responsible or liable for any inaccuracies or delays hi processing resulting from inaccurate files or Data.Any liability,penalty or other charge that results from incorrect, incomplete,or changed Data or files as a result of Client errors or omissions is Client's sole and exclusive liability and responsibility. Client agrees to reimburse Ceridian for all expenses incurred by Ceridian as a result of Client errors or omissions. Ceridian will correct any Ceridian errors within a commercially reasonable time at Ceridian's expense if such errors are reported to Ceridian within five business days of Client's receipt of Records delivered to Client.Notwithstanding the preceding sentence,Ceridian shall provide all reasonable assistance in correcting errors regardless of when reported.Client will review and reconcile the Ceridian provided Records with the Data in Client's records on a timely basis upon receipt of same and notify Ceridian of any errors in such materials within the appropriate timeframe defined for each Service. (c)Security: Ceridian has implemented and will maintain during the term of this Agreement an information security program that is reasonably designed to: (i)ensure the security, integrity and confidentiality of Client's data;(ii) protect against anticipated threats or hazards to the security or integrity of Client's data;and (iii)protect against unauthorized access to or use of Client's data. (d)Disaster Recovery: Ceridian has implemented and will maintain during the term of this Agreement a business continuity plan that is reasonably designed to minimize the impact of service disruptions caused by natural disasters or other unanticipated events,and to enable its business operations to be promptly restored following such disruptions. • 9. Warranty: Ceridian warrants that(a)the Services shall be provided to Client in compliance with the requirements of this Agreement;and(b)Ceridian shall comply with all laws applicable to the Services.Client acknowledges that effective delivery of Services requires Client's input and cooperation.Ceridian shall be entitled to rely solely on the information, authorizations,representations and warranties provided by Client pursuant to this Agreement.THE EXPRESS WARRANTIES SPECIFIED IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES,EXPRESS OR IMPLIED,INCLUDING WITHOUT LIMITATION,ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.CERIDIAN DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES. 10. Indemnification: Ceridian hereby indemnities and holds Client harmless from and against any and all claims alleging that the Services and Materials furnished by Ceridian violate any third party's patent, trade secret, copyright,or other intellectual property right,except to the extent that such claims arise from Client's modification of the Services or Materials. Ceridian also hereby indemnifies and holds Client harmless from and against any and all claims for(i)tangible property damage or bodily injury and death allegedly caused by Ceridian;(ii)amounts assessed to Client due to Ceridian's breach of law up to the amount of fines&penalties assessed by a court ordered governmental entity;(iii)tax filing penalty and interest charges to the extent such charges were caused by Ceridian; and(iv) in an amount not to exceed the limitation of remedies as set forth below,for third party claims arising from any willful breach by Ceridian of Article 5 (Confidentiality and Privacy). I I. Limitation of Remedies: Ceridian will not be responsible for any consequences, losses,damage or other harm that may arise from any inaccurate or delayed fund transfers or check deliveries that result from incorrect data fiirnished by Client to Ceridian, or insufficient or late funding by Client. EXCEPT AS EXPRESSLY SET FORTH ABOVE,THE MAXIMUM TOTAL LIABILITY OF CERIDIAN TO CLIENT SHALL BE LIMITED TO DIRECT MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED TWO TIMES THE TOTAL ANNUAL AMOUNT PAID OR PAYABLE BY CLIENT.THIS REMEDY IS CLIENT'S SOLE AND EXCLUSIVE REMEDY. CERIDIAN SHALL NOT BE RESPONSIBLE FOR ANY SPECIAL,INCIDENTAL,CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES EVEN IF CERIDIAN HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. CERIDIAN WILL NOT BE RESPONSIBLE FOR FAILURE TO PROVIDE SERVICES IF DUE TO ANY CAUSE OR CONDITION BEYOND TIIE REASONABLE CONTROL OF CERIDIAN. 12. Changes: In the event of a change in federal or state laws or regulations affecting the Services provided under the terms of this Agreement, Ceridian may make changes to the Agreement with 30 days prior written notice to Client. If, upon notification of the change, Client elects not to continue Services,Client may terminate this Agreement upon 30 days prior written notice without penalty or cancellation fees. 13.Notices: All notices to the Parties shall be sent to the Parties at their respective address identified in this Agreement or to such other address or fax number as either Party may hereafter specify by written notice to the other Party. Any notice to be provided hereunder shall be in writing(including fax or similar writing)signed by the Party giving such notice, and shall be deemed given(a) if sent by mail,three(3)days after deposit in the first class United States mail,(b) if sent via facsimile,at the time of confirmed transmission,or(c)if sent by certified mail, return receipt requested or overnight delivery using a national recognized carrier,upon actual delivery. I4. General Provisions: (a)This Agreement and the Parties rights and obligations shall be governed and construed pursuant to the laws of the state of Minnesota and Client consents to be subject to the jurisdiction of the state or federal courts located in Minnesota;(b)Client may not assign this Agreement except with Ceridian's prior written approval except in the case of acquisition or business combination provided the party to whom the assignment is made is not a competitor of Ceridian;(c)No action under this Agreement may be brought by Client more than 3 years after the cause of action has accrued. 15.Audits: The books,records,documents,and accounting procedures and practices of Ceridian are subject to examination by Client and either Legislative Auditor or the State Auditor for a period of six years after the effective date of this Agreement. 16. Worker's Compensation: Ceridian represents and warrants that it has and will maintain during the performance of this Agreement worker's compensation insurance coverage required pursuant to Minn. Stat. § I76.181,subd.2 and that the evidence of insurance or the written order of the Commissioner of Commerce permitting self insurance of worker's compensation insurance coverage provided to Client prior to execution of this agreement is current and in force and effect. 17.Discrimination: In performance of this Agreement,Ceridiau shall not discriminate on the grounds of or because of race,color, creed,religion,national origin,sex, marital status,status with regards to public assistance,disability, sexual orientation, or age against any employee of Ceridian, any subcontractor of Ceridian,or any applicant for employment, Ceridian shall use commercially reasonable efforts to include a similar provision in all contracts with subcontractors to this contract. Ceridian further agrees to comply with all aspects of the Minnesota Human Rights Act, Minn. Stat. §363.0I,et seq.,Title VI of the Civil Rights Act of 1964,and the Americans with Disabilities Act of 1990. Pursuant to Minnesota Statutes § 181.59: (1)that in the hiring of conuuon or skilled labor for the performance of any work under this Agreement, or any subcontract, no contractor,material supplier,or vendor,shall, by reason of race,creed,or color,discriminate against the person or persons who are citizens of the United States or resident aliens who are qualified and available to perform the work to which the employment relates; (2)that no contractor,material supplier,or vendor, shall, in any manner,discriminate against,or intimidate,or prevent the employment of any person or persons identified in clause(1)of this section,or on being hired,prevent, or conspire to prevent,the person or persons from the performance of work under any contract on account of race, creed,or color; and (3)that a violation of this Minn.Stat. Section 181.59 is a misdemeanor. 18. Conflicts: No salaried officer or employee of Ceridian and no member of the Board of Ceridian shall have a financial interest,direct or indirect,in this contract. The violation of this provision renders the Agreement void.Any federal regulations and applicable state statutes shall not be violated. 19. Contracting Party's Prompt Payment of Subcontractors: Ceridian shall pay to any subcontractor within ten (10)days of Ceridian's receipt of payment from Client for undisputed services provided by the subcontractor. Ceridian shall pay interest of one and a half percent(1 '''h%)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,Ceridian shall pay the actual amount due to the subcontractor. 20. Entire Agreement: This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof,and supersedes all prior or contemporaneous agreements and understandings regarding the subject matter hereof,whether written or verbal.Any amendment to this Agreement must be in writing and signed by authorized representatives of both Parties. The Parties agree that facsimile and/or.pdf copies of signatures to this Agreement will be treated as originals. Client and Ceridian acknowledge receipt of this Agreement and acknowledges that they have read,understand,and are bound by this order and the terms and conditions which are contained in this document. AGREED TO: ACCEPTED BY: Ceridian Corporation Client: City of Eden Prairie By: By: Name: Name: Title: Title: Date: Date: Ceridian Recruiting Solutions,Inc. City of Eden Prairie By: By: Name: Name: Title: Title: Date: Date: CE d]tAM Exhibit Al Jul 16, 2009 This confidential quotation has been prepared exclusively for City of Eden Prairie by Cathy Goodrich Due In Time: 1:00 PM Due Out Time: Next Day Delivery First Input Date: Jan 05,2010 First Delivery Date: Jan 06,2010 Service Start Date: Jan 08,2010 Estimated One Time Charges: Freq Pay Description Rate Quantity Charge OTC 3 Ceridian HR/Payroll Latitude Fundamentals Workshop 0.00 30 $0.00 OTC 1 Crystal Custom Report Creation 150.00 40 $6,000.00 OTC 3 Latitude Optional Services 4,300.000 1 $4,300.00 OTC 3 Latitude Additional Implementation 100.00 40 $4,000.00 OTC 3 Self Service Choice Implementation 9,500.00 1 $4,500.00 OTC 1 Recruiting Center Core Product Implementation Fee MH-TM-26 2,975.00 1 $2,975.00 OTC 1 Software Customization Time&Materials- -Ave OT Cale 150.00 40 $6,000.00 OTC 1 Software Customization Time&Materials-728463-PERA Export 0.00 130 $0.00 OTC 1 Ceridian Time Solutions Business One-Time Implementation Fee 5,845.00 1 $5,845.00 MH-TA-07(on completion) OTC 1 Ceridian Time Solutions Business One-Time Implementation Fee 5,845.00 1 $5,845.00 MH-TA-07 OTC 3 Ceridlan Time Solutions MXS20001K01 -Maximus UCS Barcode Reader 2,195.00 3 $6,585.00 OTC 1 Ceridian Time Solutions Business-SQL Statement Report 156.00 40 $6,290.00 OTC 3 Ceridian Time Solutions Clock Freight 25.00 3 $75.00 OTC 1 Ceridian Time Solutions Business Accruals 10 Policies Set-up 3,600.00 1 $3,600.00 OTC 1 Ceridian Time Solutions Business Accruals Calculator 0.00 1 $0.00 OTC 1 Latitude HRPR Implementation Fee-CDD/OCC 14,000.00 1 $14,000.00 $69,966.00 Estimated Per Processing Charges: Freq Pay Description Rate Quantity Charge PPC 1 Latitude HRPR Per Check Processing Fee-CDD/OCC 3.79 1 PPC 1 Bi-Weekly Employees(Regular Processing) 3.790 486 $1,841.94 PPC 1 Wage Attachments Register Calculation 1.50 5 $7.50 PPC 1 Wage Attachments Disbursement 1.75 5 $8.75 PPC 1 Handling Fee 5.00 1 $5.00 PPC 1 New Hire Reporting Transaction Fee 2.50 15 $37.50 $1,900.69 PPC 1 Quarterly Employees(Regular Processing) 3.790 95 $360.05 PPC 1 Handling Fee 5.00 1 $5.00 $360.05 Estimated Monthly Charges: Freq Pay Description Rate Quantity Charge MOC 2 Ceridian Time Solutions Business Recurring PEPM Fee MH-TA-07 0.00 486 $0.00 MOC 2 Recruiting Center Core Product Repetitive Fee MH-TM-26 375.00 1 $375.00 MOC 2 Software Customization-PERA Export Repetitive Monthly Charges 0.00 1 $0.00 MOC 2 Software Customization-Ave OT Caic Repetitive Monthly Charges 0.00 1 $0.00 MOC 2 Latitude Additional User Monthly Fee 0.00 1 $0.00 MOC 2 Self Service Choice Repetitive Fee 2.00 500 $1,000.00 $1,376.00 Estimated Annual Charges: Freq Pay Description Rate Quantity Charge ANC 1 Ceridlan Year-End Solution 4.10 850 $3,985.00 ANC 1 Year-End Handling Fee 28.00 1 $28.00 ANC 1 W2 CD-ROM Shipping&Handling Fee 18.00 1 $18.00 ANC 1 Year End Federal Processing Charge 168.00 1 $168.00 ANC 1 W2 State Filing Fee 64.00 1 $64.00 ANC 1 Printed W2s 0.13 850 $110.50 $3,873.50 Client Authorized Signature Date Ceridian Authorized Signature Date Page 1 of 3 Exhibit �cEFaIopI�ar4 Al Jul 16, 2009 This confidential quotation has been prepared exclusively for City of Eden Prairie by Cathy Goodrich Freq Code Legend Billing frequency Description OTC One Time Charges ANC Annual Charges • MOC Monthly Charges PPC Per Processing Charges QAC Quarterly Charges SAC Semi Annual Charges Payment Code Payment Schedule 1 Payable as incurred net 10 2 Payable monthly net 10 3 Payable upon delivery net 10 5 Payable monthly upon shipment net 10 All prices contained herein that are quoted on a time and materials basis are estimates only. Client will be billed for actual time and materials used. Standard Features Include: Signature Payroll Processing,Tax Filing(1 Fed,1 State and 1 local ID included. Additional lDs incur a monthly per ID fee),unlimited Signature reports,downloads,extracts,Trial Payroll,General Ledger,Ceridian Direct Deposit,Official Ceridian Check,five(5)Ceridian Latitude seat licenses,and HR/Payroll Latitude Hosting&Functionality. Optional Latitude Implementation Services quoted include: Check Detail History Conversion Compensation History Conversion Job History Conversion Employment History Conversion Personal History Conversion Total Payroll Price Per Employee includes the following rates for Optional Features when quoted: Archival CD/Microfiche Reports: 50.100 per active employee(Latitude is per check) Mixed Media Output: 50.150 per active employee(Latitude Is per check Report Copies: 50.030 per report copy,per active EE,Latitude-per check CD-ROM Additional Copy: $25,000 per CD-ROM Payroll Features selected: Archival Reports: No Extract Tapes: No Ind. Deduct. Registers(Reports): No Printback Reports: No Reports Created: Yes Auto Pay Service: Yes General Ledger Interface: Every Processing Check Detail File(Download): Yes Labor File(Extract): Yes Data File(s)(Download): Yes Tax Filing Fund Availability: Checkdate-1 Internet Payroll Management Yes With the exception of Bank referral customers,a minimum per processing charge(currently$100.00(weekly)or$150.00(non-weekly))applies to all payroll processing.Unscheduled processing and processing work that does not result in active employees will be billed based on the active employee count on the contract or a minimum charge of$100.0015150.00 per run,whichever is greater.Billable unscheduled processings are subject to an additional fee. The first 30 days of mixed media processing is included. Client Authorized Signature Date Ceridian Authorized Signature Date Page 2 of 3 C A�AN Exhibit Al Jul 16, 2009 This confidential quotation has been prepared exclusively for City of Eden Prairie by Cathy Goodrich All fixed implementation fees will be subject to progress billing. Such fees will be billed as incurred,with up to 90%of fees due prior to project completion. The last 10%due will be billed upon project completion. A deposit of$17,816.25 must be paid at time of contract signing. If Automatic Payment Service is used,the deposit will be waived. Adjustment and bonus runs will be charged a base run fee of$225.00 plus the current check rate times the number of checks processed. Ceridian Recruiting and Self-Service will be billed at a fixed 500 employees each month. Charges are billed in 12 monthly installments.Ceridian reserves the right to review the contract annually and adjust pricing according to employee count changes. Goods and/or materials,if any,shipped FOB Origination Point. For customers requiring Split Wrap,Ceridian guarantees a 48 hour turnaround. For Ceridian Time,Premium implementation fees are subject to progress billing. Such fees will be billed as incurred. For Ceridian Time,Business and Essentials,50%of implementation fees will be billed at contract execution with the remaining 50%due at project completion. For Ceridian Time,any purchased product or service that requires on-site representation from Ceridian or a Ceridian designated representative,the client will be billed for all applicable travel expenses in addition to any hourly or other quoted rates for the product or service. First Input Dates,Delivery Dates and Service Dates are estimated on information known at the time of contract. These dates are subject to change. Additional fees may apply for Ceridian Payment Solutions,Official Ceridian Check,and Ceridian Direct Deposit. Additional fees apply for items such as stop payments,check photocopies,file reversals, incoming wire transfers,and non-sufficient fund transactions. Any new or additional modifications to the Professional Services project scope may result in additional hours or materials,and any increased complexity in the resulting software customization may result in an increase of the monthly software maintenance fee.Client will pay for actual time Incurred to complete the project and for any adjusted maintenance fee regardless of estimate. The person to contact with billing questions is Karen Kurt at(952)949-8437. Set up fees will be invoiced in the 30 day billing period that the client received system access through email delivery of URL links. Monthly hosting fees for Recruiting Services will be billed in the period 30 days after access to client's system is available. Monthly hosting fees quoted are minimum fees based on 500 employees as of the date of the agreement. If Ceridian Direct Deposit is not used,per employee pricing will be increased and an EFT Transmission fee will apply at the then current rate. If Automatic Payment Services Is not used to pay your invoice an additional fee will apply. Prices shown here are valid only if this agreement is signed by the client within 30 days from 7/31/2009. Estimated First Year Costs: $141,196.64 *Estimated Second Year Costs: $71,231.64 *Does not include any applicable price increases. Client Authorized Signature Date Cerldlan Authorized Signature Date Page 3 of 3 Exhibit A01-a Client Quotation-Exception Fees Ceridian Payment Solutions Ceridian Direct Deposit,Ceridian Check and Ceridian PayCard Ceridian Direct Deposit Ceridian Direct Deposit Stop Payment or Reversal-Item $ 10.00 Per Item Ceridian Direct Deposit Stop Payment or Reversal-Batch or File $ 40.00 Per File Failed Ceridian Direct Deposit Reversal $ 10.00 Pet Item Returned Ceridian Direct Deposit $ 5.00 Per Item Notification of Change(NOC) $ 2.00 Per Item Ceridian Check Ceridian Check Stop PaymenUCheck Vold-Item $ 10.00 Per Item Ceridian Check Stop PaymentiCheck Void-Batch or File $ 40.00 Per File Ceridian Check Copy S 10.00 Per item Positive Pay Exception-(Early Check Cashing) $ 15.00 Per Item Stale-Dated Check Void-180 Days or Older S 3.00 Per Item Funding and Other Services Incoming Wire Transfer $ 35,00 Per Occurrenco Non-Sufrclent Funds-1st Occurrence under$50k $ 150.00 Per Occurrence Non-Sufficient Funds-1st Occurrence over$50k $ 250.00 Per Occurrence Non-Sufficient Funds-2nd Occurrence under$50k $ 250.00 Per Occurrence Non-Sufficient Funds-2nd Occurrence over$50k $ 350.00 Per Occurrence Non-Sufficient Funds-3rd Occurrence under$50k(Client subject to termination) $ 350-00 Per Occurrence Non-Sufficient Funds-3rd Occurrence over$50k(Client subject to termination) $ 500.00 Per Occurrence CPS Additional Service Requested by Client(not within the scope of the contract) $ 65,00 Pet Hour The rates set forth in the Exhibit A01-a are subject to change with no written notice to Client at Ceridian's sole discretion. ACCEPTED BY: ACCEPTED BY CERIDIAN CORPORATION CLIENT: Authorized Signature Authorized Signature Printed Name and Title Printed Name and Title Date Date • Effective: 03131/2006 Page 1 of 1 -V102006 CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar August 18, 2009 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: VIII.I. Rob Reynolds/Chief of Adopt Resolution Authorizing Police/Police Execution of Grant Agreement for Safe & Sober Project Requested Action Move to: Adopt Resolution approving grant agreement with the Minnesota Department of Public Safety for the Safe and Sober Communities project for 2009-2010. Synopsis The Eden Prairie Police Department seeks approval to enter into a grant agreement with the Minnesota Department of Public Safety, Office of Traffic Safety for the project entitled Safe and Sober Communities during the period from October 1, 2009 through September 30, 2010. Attachments Resolution CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO. 2009- RESOLUTION AUTHORIZING EXECUTION OF AGREEMENT BE IT RESOLVED that the Eden Prairie Police Department enter into a grant agreement with the Minnesota Department of Public Safety, Office of Traffic Safety for the project entitled SAFE & SOBER COMMUNITIES during the period from October 1, 2009 through September 30, 2010; and BE IT FURTHER RESOLVED that the Mayor and City Manager are hereby authorized to execute such agreements and amendments as are necessary to implement the project on behalf of the Eden Prairie Police Department; and BE IT FURTHER RESOLVED that the Chief of the Bloomington Police Department is hereby authorized to be the fiscal agent and administer this grant on behalf of the Eden Prairie Police Department. ADOPTED by the Eden Prairie City Council on August 18, 2009. Phil Young, Mayor ATTEST: Kathleen Porta, City Clerk CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar August 18, 2009 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: VIII.J. Police Department Hennepin County Edward Byrne Memorial Chief Rob Reynolds Justice Assistance Grant Agreement Execution Requested Action Move to: Approve agreement authorizing Hennepin County to submit a grant application to the United States Department of Justice for an Edward Byrne Memorial Justice Assistance Grant (JAG) on behalf of the City of Eden Prairie. Synopsis Under the FY09 Edward Byrne Memorial Justice Assistance Grant program, the City of Eden Prairie is eligible for$9,517 in funding. The JAG Program is an annual grant program operated by the Federal Bureau of Justice Assistance. JAG grants are allocated based on a formula of population and violent crime statistics. The City of Eden Prairie has not qualified to receive this grant funding for the past several years. However, this year based on the formula, the City of Eden Prairie is eligible for $9,517 in grant money. The Police Department intends to use the grant money to fund the following four pieces of equipment which will be used by the Department's Emergency Response Unit(ERU): 1. Boresighted Night Sight System is a piece of equipment that is mounted on top of a rifle in order to provide an officer with night vision. The system would be used by snipers in the Department's ERU team. 2. Range Finder is a laser range finder that is readable in very low light conditions and would be used by the ERU snipers. It gives precise measurements on objects 900-1200 yards away. 3. The Sniper Rifle Angle Cosign Indicator& Mount is a tool for the Department's ERU snipers which gives the sniper a corrected-for-gravity distance to a target. This allows the sniper to make accurate and necessary scope adjustments to ensure a safe and precise engagement. 4. The Video Monitor is for use with the ERU's pole cameras which allow ERU team members to see into hard to reach spaces. Attachment Agreement Contract No: A090832 AGREEMENT This Agreement is between the COUNTY OF HENNEPIN, STATE OF MINNESOTA, (the "COUNTY"), the Cities of Bloomington, Brooklyn Center, Brooklyn Park, Eden Prairie, Minneapolis, Richfield, St. Louis Park, ("CITIES") (COUNTY and/or Cities may be individually called a"PARTY" and collectively called "PARTIES"). WHEREAS, the PARTIES, authorize the COUNTY to submit a grant application to the United States Department of Justice for the FY09 Edward Byrne Memorial Justice Assistance Grant (the "GRANT") (The Catalog of Federal Domestic Assistance -- CFDA number for this grant is 16.738.) on behalf of the PARTIES and to serve as fiscal agent for the PARTIES; and WHEREAS, the PARTIES recognize the need to set forth the duties and obligations of the PARTIES with respect to the administration of the Grant; NOW, THEREFORE, in consideration of mutual undertakings and agreements hereafter set forth,the PARTIES hereby agree as follows: 1. TERM This Agreement shall become effective upon approval by all PARTIES on the date of approval by the last PARTY and shall continue through September 30, 2012, or the completion of the services provided hereunder, whichever is earlier, unless terminated earlier in accordance with the provisions herein. Any Party may cancel this Agreement immediately if the Party reasonably believes there has been a failure to comply with the provisions of this Agreement, or failure to comply with the terms of the Grant award, rules, or guidelines or failure to comply with applicable law. 2. SERVICES TO BE PROVIDED Hennepin County will submit the FY09 Edward Byrne Memorial Justice Assistance Grant application 2009-G9351-MN-DJ ("Grant"). In the event all Grant funds are received, each local unit of government will receive grant funds in the following amounts: BLOOMINGTON $ 24,805 BROOKLYN CENTER $ 30,765 BROOKLYN PARK $ 56735 EDEN PRAIRIE $ 9,517 MINNEAPOLIS $ 659,688 RICHFIELD $ 22,964 ST LOUIS PARK $ 14,430 HENNEPIN COUNTY DEPARTMENTS $ 439,792 HENNEPIN COUNTY ADMINISTRATION $ 66,247 Total I MP $ 1,324,943 If the Grant funds are less than $1,324,943, the parties shall distribute the actual funds received in proportion to the table above less the costs of administration set forth herein. If any Grant funds are received, Hennepin County shall serve as the fiscal agent on behalf of the above named local units of government. The COUNTY shall provide financial administrative services necessary for the administration of the grant, including but not limited to the following: • Satisfy financial and administrative grant requirements. • Submit financial,programmatic and similar reports required under the grant. • Work with the Department of Justice to resolve administrative issues. • Comply with grant conditions regarding financial administration of the grant including but not limited to reporting, data collection and evaluation requirements prescribed by the grant. • Coordinate compliance with the organization audit requirements attached to the grant. • Manage grant funds. • Pursuant to applicable accounting standards and procedures, maintain financial and accounting books and records as shall be necessary, appropriate and convenient for the proper administration of the grant. COUNTY shall be entitled to a five percent(5%) administrative fee set forth in this Agreement. 3. DUTIES OF THE PARTIES The PARTIES, individual and collectively, acknowledge that COUNTY will be administering the Grant on their behalf and agree to cooperate fully with COUNTY in all matter with respect to such grant administration so as to allow COUNTY to satisfy the grant requirements, including but not limited to the following acts: • Comply with the provisions of the Grant award, rules, and guidelines and comply with applicable law including, as applicable, but not limited to the Single Audit Act Amendments of 1996 as amended and Office of Management and Budget Circular A-133. • Maintain books and records relating to the receipt and expenditure of grant funds for six (6) years after expiration of this Agreement. • Report the receipt and expenditures to the other PARTIES on a quarterly basis, then report a final accounting, pursuant to applicable accounting standards, upon expiration of this Agreement. • Supply full and complete information, as requested by COUNTY, so as to allow COUNTY to satisfy the grant conditions and requirements. • Work together with COUNTY to ensure that all grant conditions and requirements are met. • Provide COUNTY with data and information sufficient for COUNTY to meet its reporting, data collection and evaluation requirements as prescribed by the grant. • Eligible expenditures under this grant contract must be incurred by the grantee by the expiration date of the grant agreement. • Abide by the provisions of the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (MGDPA), the Health Insurance Portability and Accountability Act and implementing regulations, if applicable, and all other applicable state and federal laws, rules, regulations and orders relating to data privacy or confidentiality. 4. LIABILITY AND INDEMNIFICATION Each PARTY agrees that it will be responsible for its own errors, acts and omissions and the results thereof to the extent authorized by law and shall not be responsible for the errors, acts and omissions of any other PARTY and the results thereof,provided, however, CITIES agree to defend, indemnify and hold harmless COUNTY from all liabilities, claims, demands, losses, costs, expenses and causes of action of any kind or character, including the cost of defense thereof resulting from the provision of services under this Agreement. The PARTIES liability is governed by the provisions of Minnesota Statutes, Chapter 466. Under no circumstances shall a PARTY be required to pay on behalf of itself and other PARTIES any amounts in excess of the limits on liability established in Minnesota Statutes Chapter 466 applicable to any one PARTY. The statutory limits of liability for some or all of the PARTIES may not be added together or stacked to increase the maximum amount of liability for any party. 5. COUNTERPARTS This agreement may be executed in several counterparts, each of which shall be regarded as an original and all of which shall constitute but one and the same Agreement. THIS PORTION OF PAGE INTENTIONALLY LEFT BLANK COUNTY BOARD AUTHORIZATION COUNTY OF HENNEPIN Reviewed by the County STATE OF MINNESOTA Attorney's Office By: Chair of Its County Board Date: ATTEST: Deputy/Clerk of County Board Date: And: Assistant/Deputy/County Administrator Date: CITY OF EDEN PRAIRIE By: Its: And: Its: ADDITIONAL SIGNATURES ARE INCLUDED ON ADDITIONAL PAGES CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar August 18, 2009 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: VIII.K. Police/ Request Approval of Mutual Aid Pact with Rob Reynolds, Police Chief Hennepin County Requested Action Move to: Approve Mutual Aid Pact with Hennepin County Synopsis The general purpose of the mutual aid pact is to permit agencies to share law enforcement resources with other agencies in Hennepin County. Attachments Hennepin County Mutual Aid Pact 2009 Memorandum to Hennepin County Mutual Aide Pact 2009 HENNEPIN COUNTY CHIEF'S OF POLICE ASSOCIATION MUTUAL AID PACT Updated July 2009 TABLE OF CONTENTS FOREWORD 1 JOINT AND COOPERATIVE AGREEMENT FOR USE OF LAW ENFORCEMENT PERSONNEL AND EQUIPMENT 3 I. GENERAL PURPOSE 3 II. DEFINITION OF TERMS 3 III. PARTIES 4 IV. PROCEDURE 4 V. LIABILITY 6 VI. EFFECTIVE DATE 7 VII. WITHDRAWAL AND TERMINATION 7 RESOLUTION (Sample) _8 SIGNATURE PAGE (Sample) _9 MUTUAL AID PACT Effective July 1, 2009 FOREWORD The Mutual Aid Committee of the Hennepin County Chief's of Police Association was tasked with revising and updating the mutual aid pact among all the police agencies of Hennepin County. The original pact was created in 1968 with the various agencies joining the pact throughout the years. Many provisions of the original pact were continued into the new pact. The Joint and Cooperative Agreement for Use of Law Enforcement Personnel and Equipment in Hennepin County ("Joint Powers Agreement") was updated to reflect accurately the procedures, address current issues and enhance the ability of departments to share resources with each other. Each agency is responsible for entering and updating available agency resources on line in the RAPID Database. The general purpose of the pact is to permit agencies to share law enforcement resources with other agencies in Hennepin County. The Joint Powers Agreement specifically allows a requesting party to select the resources that best meets the needs of a given situation. A requesting party may call upon any other participating party for mutual aid. There is no requirement to make requests through a particular party. In addition, the Joint Powers Agreement should not be interpreted as restrictive in providing resources to deal with only major catastrophic situations. Participating parties can utilize the resources for many reasons including routine circumstances such as training efforts and back-up patrol service. This pact provides the flexibility for all agencies to use the resources located among all participating parties in Hennepin County. The decision as to when to invoke mutual aid and whether to respond is left to the discretion of the requesting or responding party. Each agency should acquaint supervisory Personnel with any internal procedures used for mutual aid. While the Joint Powers Agreement does not require particular words or actions to initiate mutual aid, agencies should be clear about whether mutual aid was requested and what type of assistance is being provided. Hennepin County Chief's of Police Association Mutual Aid Pact - 1- Updated.March 2009 Furthermore, each officer within a department should have a basic familiarity with mutual aid, the responsibilities when reporting to another agency and the protections afforded under the agency's worker's compensation. Management of a mutual aid situation specifically remains under the control of the requesting party. The sending party retains direction and control of any Personnel provided. Yet, the sending party must coordinate with the requesting party the law enforcement assistance provided. Time commitments for mutual aid requests: While there is no hard and fast time limit, the commitment of resources can be taxing on agencies. In addition, in some situations, an advantage can be gained by ending a mutual aid request and entering into some contractual assistance. Especially when the law enforcement costs need to be tracked or can be recovered from other sources. The Hennepin County Sheriff's Office ("Sheriff") has again volunteered to serve as the administrative coordinator of the pact. As communities adopt the Joint Powers Agreement, the appropriate documentation and signature page need to be forwarded to the Sheriff. The participating parties to this agreement are solely responsible to update their available resources in the RAPID Database. The effective date for the new Joint Powers Agreement is July 1st, 2009. This date was established to allow enough time for agencies to receive the appropriate authority and to provide some finality between the old pact and the new pact. When a party elects to enter into the new Joint Powers Agreement, their participation in the former pact will cease on July 1st, 2009. Some agencies may elect not to participate in this pact; those agencies would be bound under other mutual aid agreements or state statutes. Hennepin County Chief's of Police Association Mutual Aid Pact -2- Updated.March 2009 JOINT AND COOPERATIVE AGREEMENT FOR USE OF LAW ENFORCEMENT PERSONNEL AND EQUIPMENT I. GENERAL PURPOSE The general purpose of this Joint and Cooperative Agreement for Use of Law Enforcement Personnel and Equipment ("Agreement") is to provide a means by which a Party to this Agreement may request and obtain Law Enforcement Assistance from other Parties when the Party deems such assistance necessary. This Agreement is made pursuant to Minnesota Statutes, Section 471.59, which authorizes the joint and cooperative exercise of powers common to the Parties. II. DEFINITION OF TERMS For the purposes of this agreement, the terms defined in this section shall have the meanings: Subd. 1. "Eligible Party" means a governmental unit that is permitted to become a Party to this agreement, at its own option. The Eligible Parties are the County of Hennepin and every governmental unit authorized to exercise police powers within the County of Hennepin, State of Minnesota. Subd. 2. "Law Enforcement Assistance"means equipment and Personnel, including but not limited to, licensed peace officers and non-licensed Personnel. Subd. 3. "Party" means a governmental unit that elects to participate in this Agreement. Subd. 4. "Requesting Official" means a person who is designated by the Requesting Party to request Law Enforcement Assistance from other Parties. Subd. 5. "Requesting Party"means a Party that requests Law Enforcement Assistance from other Parties. Hennepin County Chief's of Police Association Mutual Aid Pact -3- Updated:March 2009 Subd. 6. "Sending Official" means a person who is designated by a Party to determine whether and to what extent that Party should provide Law Enforcement Assistance to a Requesting Party. Subd. 7. "Sending Party" means a Party that provides Law Enforcement Assistance to a Requesting Party. Subd. 8. "Sheriff"means the Hennepin County Sheriff or designee. Subd. 9. "RAPID"means the resource database available at rapidresource.org. III. PARTIES The Parties to this Agreement shall consist of as many Eligible Parties that approve this Agreement and execute a separate signature page to become Parties. Upon approval, the executed signature page of this Agreement shall be sent to the Sheriff along with a certified copy of the documentation evidencing approval. Approval of this Agreement by a Party shall be evidenced by: ♦ for a municipality, a resolution adopted by the governing body, or ♦ 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. PROCEDURE Subd. 1. Each Party shall designate, and keep on file with the Sheriff, the name of the person(s) of that Party who shall be its Requesting Official and Sending Official. A Party may designate the same person as both the Requesting Official and the Sending Official. Also, a Party may designate alternate persons to act in the absence of an official. Subd. 2. Whenever, in the opinion of a Requesting Official of a Party, there is a need for Law Enforcement Assistance from other Parties, such Requesting Official may, at Hennepin County Chief's of Police Association Mutual Aid Pact -4- Updated.March 2009 their discretion, call upon the Sending Official of any other Party to furnish Law Enforcement Assistance to and within the boundaries of the Requesting Party. Subd. 3. Upon the receipt of a request for Law Enforcement Assistance from a Party, the Sending Official may authorize and direct Personnel of the Sending Party to provide Law Enforcement Assistance to the Requesting Party. Whether the Sending Party provides such Law Enforcement Assistance to the Requesting Party and, if so, to what extent such Law Enforcement Assistance is provided shall be determined solely by the Sending Official (subject to such supervision and direction as may be applicable within the governmental structure of the Party by which they are employed). Failure to provide Law Enforcement Assistance will not result in liability to a Party. Subd. 4. When a Sending Party provides Law Enforcement Assistance under the terms of this agreement, it may in turn request Law Enforcement Assistance from other Parties as "back-up" during the time that such Law Enforcement Assistance is provided. Subd. 5. Whenever a Sending Party has provided Law Enforcement Assistance to a Requesting Party, the Sending Official may at any time recall such Law Enforcement Assistance or any part thereof, if the Sending Official in their best judgment deems such recall necessary to provide for the best interests of their community. Such action will not result in liability to any Party. Subd. 6. The Requesting Party shall be in command of all situations where Law Enforcement Assistance is requested. The personnel and equipment of the Responding Party shall be under the direction and control of the Requesting Party until the Responding Party withdraws assistance. Subd. 7. A Sending Party shall demand no charges or costs for Law Enforcement Assistance rendered under this Agreement. Hennepin County Chief's of Police Association Mutual Aid Pact -5- Updated:March 2009 V. LIABILITY Liability for Injury or Damage to Responding Party's Personnel or Equipment Each party shall be responsible for its own personnel, equipment and for injuries or death to any such personnel or damage to any such equipment. Responding personnel shall be deemed to be performing their regular duties for each respective Responding Party. Worker's Compensation: Each party will maintain workers' compensation insurance or self-insurance coverage, covering its own personnel while they are providing assistance pursuant to this Agreement. Each party waives the right to sue any other party for any workers' compensation benefits paid to its own employee or volunteer or their dependants, even if the injuries were caused wholly or partially by the negligence of any other party or its officers, employees or volunteers. Damage to Equipment: Each party shall be responsible for damages to or loss of its own equipment. Each party waives the right to sue any other party for any damages to or loss of its equipment, even if the damages or losses were caused wholly or partially by the negligence of any other party or its officers, employees or volunteers. Liability for Injury to Third Parties or Property Damage of Third Parties The Requesting Party agrees to indemnify and defend against any claims brought or actions filed against a Responding Party or any officers, employees, or volunteers of a Responding Party for injury or death to any third person or persons or damage to the property of third persons arising out of the performance and provision of assistance pursuant to the Agreement. Under no circumstances shall a Requesting Party be required to pay, on behalf of itself and other parties, any amounts in excess of the limits of liability established in Minnesota Statutes. For instance, under no circumstances shall a City or County party be required to pay on behalf of itself or another party any amounts in excess of the limits on liability established in Minnesota Statutes Chapter 466 applicable to any one party. The limits of liability for the parties may not be added together to determine the maximum amount of liability for a party. Hennepin County Chief's of Police Association Mutual Aid Pact -6- Updated.March 2009 The purpose of creating this duty to defend and indemnify is to simplify the defense of claims by eliminating conflicts among the parties and to permit liability claims against the parties from a single occurrence to be defended by a single attorney. Nothing in this Agreement is intended to constitute a waiver of any immunities and privileges from liability available under federal law or the laws of Minnesota. VI. EFFECTIVE DATE This Agreement shall become effective and operative beginning July 1st, 2009, 12:01 A.M., local time, for those Eligible Parties that have provided resolutions and executed documents to the Sheriff by that date. An Eligible Party may join the Agreement after July 1st, 2009, by providing the necessary documents to the Sheriff. This Agreement shall continue in force until a Party or this Agreement terminates under the provisions of Section VII. Upon the beginning date of this Agreement or any time after the beginning date that an Eligible Party joins, this Agreement shall supersede, replace and void for the Party the Joint and Cooperative Agreement for Use of Police Personnel and Equipment, dated 1968, that provides for mutual aid. The Sheriff shall maintain a current list of the Parties to this Agreement and, whenever there is a change, shall notify the designated Sending Officials. The Sheriff shall send a copy of each Party's executed signature page to all Parties of this Agreement. VII. WITHDRAWAL AND TERMINATION A Party may withdraw at any time upon thirty- (30) days' written notice to the Sheriff. The Sheriff shall thereupon give notice of such withdrawal, and of the effective date thereof, to all other parties. Parties that have withdrawn may rejoin after executing the appropriate resolution and document. This Agreement will terminate when the number of Parties to the Agreement falls below eleven (11). Hennepin County Chief's of Police Association Mutual Aid Pact -7- Updated:March 2009 Resolution No. Passed by all entities July 1, 2009 A Resolution Adopting the Joint and Cooperative Agreement for Use of Law Enforcement Personnel and Equipment of July 1, 2009 From the Hennepin County Chief's of Police Association Mutual Aid Pact WHEREAS, the (ORGANIZATION or CITY) has previously approved and participated in a mutual aid agreement between the police agencies within Hennepin County to provide cooperative use of police Personnel and equipment; and WHEREAS, such agreement was most recently approved by the council/Board/Commission on ( DATE ) and WHEREAS, the participating governmental units have determined that it is advisable to clarify and update the language of that agreement. NOW, THEREFORE, be it resolved, by the (ORGANIZATION or CITY), that the Joint and Cooperative Agreement For Use of Law Enforcement Personnel and Equipment, ("Agreement") dated July 1, 2009 from the Hennepin County Chief's of Police Association be approved; that (ORGANIZATION or CITY) is withdrawing from the previous Hennepin County Mutual Aid Agreement on the effective date in the new Agreement and that ( NAME, TITLE ) is authorized and directed to execute said Agreement on behalf of the (ORGANIZATION or CITY) as a participating member of the Agreement. Passed by a vote of ayes and nays this day of , 2 AYES NAYS ABSENT ABSTENTIONS Authorized Signature Witness Hennepin County Chief's of Police Association Mutual Aid Pact -8- Updated.March 2009 SAMP HENNEPIN COUNTY CHIEF'S OF POLICE ASSOCIATION MUTUAL AID PACT SIGNATURE PAGE IN WITNESS WHEREOF, the undersigned have caused this Joint Powers Agreement to be executed for the police agency _ Dated: By: Title: Witness: Title: Hennepin County Chief's of Police Association Mutual Aid Pact -9- Updated:March 2009 �l pQLIC� Memorandum No,«-rANO RvE 1 l , To: Hennepin County . � EDEN From: City of Eden Prairie "PRAIRIE Date: August 18, 2009 MINNESOTA Subject: Mutual Aid Pact 2009 We understand that in Sub 6 of Section IV. Procedure, we understand the term "responding party" to mean "sending party" as defined in Sub 7 of Part II. Definition of Terms. CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar August 18, 2009 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: VIII.L. Stuart Fox, Parks and Natural Award Fencing Contract for Various Park Resources Manager, Parks and Locations to Pass Fencing Recreation Motion Move to: Award the contract for chain link fencing at various park locations to Pass Fence in the amount of$43,280.00. Synopsis The City advertised for the chain link fencing at three park locations. The parks are: Miller, Round and Nesbitt Preserve. Specifications for the work were prepared and the City received quotes from three contractors. The Miller Park work includes 14 handicap fence openings at seven ballfields, repair of three batting cages, repair to gate openings on two soccer fields; At Round Lake Park the work includes eight handicap openings at the softball fields. The work at Nesbitt Preserve fence includes outfield fencing and concrete maintenance strip. Background Recently the staff received notice from the Minnesota Department of Natural Resources that a recent audit of Miller and Round Lake Park had deficiencies related to ADA accessible openings to the ball fields and players bench areas. Portions of these two parks were purchased with LAWCON Grant Money and therefore the City is mandated to meet the terms and conditions of that grant agreement, including making certain that all facilities are accessible. The deficiency that needed to be corrected was to provide a wider opening in the chain link fence to the field and players bench areas. At Miller Park storm winds bent the batting cage fencing on three batting cages two years ago. These batting cages need the posts and chain link fence repaired to make them fully function able again. The Eden Prairie Baseball Association(EPBA) requested permanent fencing to replace the snow fence at two ball fields at Nesbitt Preserve Park. The money for doing this fence work comes from three sources: • ADA Improvements will be funded by the Park Improvement Fund • Repairs to existing fencing will be funded by Park Maintenance operating funds • New fencing will be cost shared 50/50 with a donation from the EPBA and Park Improvement Funds. Quote Summary and Recommendation The summary of the quotes submitted is as follows: PASS FENCE ANCHOR FENCE FINLEY BROS. Miller Park 14 handicap openings $2,100.00 $1,470.00 $2,970.00 Field#2 Batting Cage $4,200.00 $4,835.00 $7,470.00 Field#7 Batting Cage $4,200.00 $4,095.00 $7,470.00 Field#8 Batting Cage $4,200.00 $5,530.00 $7,470.00 Soccer Field Gates $700.00 $350.00 $710.00 Round Lake Park 8 handicap openings $1,200.00 $840.00 $1,724.00 Nesbitt Preserve Park Outfield fencing $10,880.00 $17,685.00 $19,000.00 Concrete Maint. Strip $15,800.00 $10,750.00 $17,740.00 TOTAL BID $43,280.00 $45,555.00 $64,554.00 Staff estimate for this project,based on 2008 bid/quote information, was $58,000. Each of the submitters met the guidelines as detailed in the quote specifications and staff recommends the contract be awarded to Pass Fence. The breakdown of the costs charged to each funding source is as follows: ADA Improvements from Park Improvement Fund- $ 4,000.00 Fence Repairs from the Park Maintenance Fund- $12,600.00 New Fence at Nesbitt Preserve at 50% from Park Improvement Fund- $13,340.00 New Fence at Nesbitt Preserve at 50% from EPBA Donation- $13,340.00 TOTAL $43,280.00 CITY COUNCIL AGENDA DATE: SECTION: Public Hearing August 18, 2009 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: IX.A. Jay Lotthammer, Director, 2010 Recreation Fees & Charges Parks and Recreation Motion Move to: Approve the proposed Park and Recreation fees and charges for inclusion in the 2010 budget. Synopsis Staff is submitting the proposed fees and charges for inclusion in the 2010 budget. These fees and charges are a part of the annual operating budget within the Parks and Recreation Department and help offset operating expenses. In 2008, $2,966,785.00 was raised through parks and recreation fees and charges. The public notice was published in the Eden Prairie News on August 6, 2009. The fees and charges were reviewed by the Parks, Recreation and Natural Resources Commission at their August 3th meeting. The Commission voted unanimously to recommend approval by the City Council. Some fees and charges are proposed to increase slightly to reflect increasing expenses and market changes. Background Fees and charges are established for programs and services offered through the Parks and Recreation Department. In order to promote the programs and services that these fees and charges are associated with in a timely manner(approximately September), staff is requesting City Council approval. Ice time rates would go into effect September 1. All other fee adjustments would be made beginning January 1, 2010. Attachment Proposed 2010 Fee Resolution Charts Fee Resolution 2010 Service Fee Description 2009 2010 COMMUNITY CENTER Community Center Membership Benefits 1.Includes full use of fitness facility including a complimentary equipment orientation 2.Includes group fitness classes(except specialty fitness classes such as Yoga and Pilates) 3.Includes use of racquetball courts 4.Includes free open gym,skate and swim Additional Information 1.One time administrative fee 2.Month to month automatic debit payment required unless a payment for 12 months is rendered in full at time of purchase. Occurs on the 1st of every month. 3.10%discount for 12 month up front payment. 4.Monthly suspension fee available for up to 3 months per 12 month term. Guidelines for Membership Types Youth Membership Defined as any child 18 years of age and younger. Adult Membership Defined as any individual ages 19 years of age and older. Dual Membership Any two adults or adult and youth residing at the same address. Dual Plus One Any two adults plus one youth or one adult and two youths residing at the same address. Household Membership Any two adults and up to four youth residing at the same address. Senior Defined as any individual 62 years of age and older. Extended Household See Community Center management for membership options that include larger families,nannies,and babysitters. Senior Dual Membership Any one senior and one additional member(55 or older)residing at the same address. Monthly Resident Membership Rates A resident either lives or works in Eden Prairie.Valid for 12 months from date of purchase. 10%discount on upfront purchase of 12 month membership Youth(18 and under) $ 24.00 Monthly rate plus applicable taxes $ 24.00 $ 24.75 Adult(19 and over) $ 32.00 Monthly rate plus applicable taxes $ 32.00 $ 33.00 Dual $ 57.00 Monthly rate plus applicable taxes $ 57.00 $ 58.75 Dual Plus One $ 67.00 Monthly rate plus applicable taxes $ 67.00 $ 69.00 Household $ 77.00 Monthly rate plus applicable taxes $ 77.00 $ 79.50 Senior(62 and older) $ 24.00 Monthly rate plus applicable taxes $ 24.00 $ 25.00 Senior Dual $ 42.75 Monthly rate plus applicable taxes $ 42.75 $ 44.00 Monthly Non Resident Membership Rates Youth(18 and under) $ 38.40 Monthly rate plus applicable taxes $ 38.40 $ 39.75 Adult(19 and over) $ 38.40 Monthly rate plus applicable taxes $ 38.40 $ 39.75 Dual $ 68.40 Monthly rate plus applicable taxes $ 68.40 $ 70.50 Dual Plus One $ 80.40 Monthly rate plus applicable taxes $ 80.40 $ 82.75 Household $ 92.40 Monthly rate plus applicable taxes $ 92.40 $ 95.00 Senior(62 and older) $ 38.40 Monthly rate plus applicable taxes $ 38.40 $ 39.75 Senior Dual $ 68.40 Monthly rate plus applicable taxes $ 68.40 $ 70.50 Membership Administrative Fee Fee to administer a new membership $ 25.00 $ 29.00 Membership Change Fee Fee to make changes to an account $ - $ 10.00 Membership Suspension Fee Monthly suspension fee available for up to 3 months per 12 month term. $ 5.00 Equipment Rental ** Free to Eden Prairie non profit service organization groups. Ice Skates $ 1.50 Per pair $ 1.50 $ 2.00 Overhead projector $ 15.00 Per use-fee changed to one fee for all audio/video in 2010 $ 15.00 inactivate Projector screen $ 10.00 Per use-fee changed to one fee for all audio/video in 2010 $ 10.00 inactivate Racquetball racquets $ 2.00 Deposit Per racquet $ 2.00 inactivate TV/VCR cabinet $ 15.00 Per use-fee changed to one fee for all audio/video in 2010 $ 15.00 inactivate AudioNisual Combo Per use-fee changed to one fee for all audio/video in 2010 n/a $ 20.00 AudioNisual Combo Per booking n/a $ 50.00 Play Care Play Care -Member $ 2.00 Two hours;Two hour maximum $ 2.00 $ 2.50 Play Care-Nonmember $ 3.00 Two hours;Two hour maximum $ 3.00 $ 3.50 Punch Cards-Member Punch Card-20 sessions $ 40.00 Punch Card-Non member Punch Card-20 sessions $ 60.00 Page 1 of 4 Fee Resolution 2010 Service Fee Description 2009 2010 Play Structure Under 12 months(changed from 24 mths) free Per child,per visit free free 12 months-4 years of age $ 3.00 Per child,per visit $ 3.00 $ 3.50 5 years to 15 years $ 4.00 Per child,per visit $ 4.00 $ 4.50 Tot Time/Open Gym Members Child must be on a family membership free free Non Members $ 5.50 Daily Full Use Pass(includes open gym,open skate,open swim,group fitness,fitness,and racquetball) **Must be age 14 and up to use Fitness Center Members free free free Individual Resident $ 7.50 Youth or adult $ 7.50 $ 8.00 Family Resident $ 15.00 Up to five people living at the same address $ 15.00 $ 16.00 Individual Non Resident $ 9.50 Youth or adult $ 9.50 $ 10.00 Family Non Resident $ 19.00 Up to five people living at the same address $ 19.00 $ 20.00 Open Skate,Swim and Gym **Resident and Non Resident-fee is for the use of open swim,open skate,and open gym) Babies up to 12 months free Tots 12months to 4 years (added for 2010/2011) $ 3.50 Tots $ 3.00 4 years of age and under $ 3.00 $ 3.50 Youth $ 4.00 5 years of age to 18 years of age $ 4.00 $ 4.50 Adult $ 4.50 19 years of age or older $ 4.50 $ 5.00 Family rate $ 13.00 Max 5 people living at same address $ 13.00 $ 15.00 Lifeguards $ 15.00 Per hour $15.00 $ 16.00 One to 50 swimmers Second lifeguard required 51-100 swimmers Third lifeguard required 101 or greater Add'I lifeguards will be determined by management depending on group size and age Fitness Instructors When renting Fitness Studio $ 32.00 Per hour $ 32.00 Special Ice Rates-School District 272 Physical education classes $ 70.00 Per hour-50%of non-prime time rate $ 70.00 $ 75.00 Hockey games Prime time rate-Personnel required to run the games supplied by others. COMMUNITY CENTER-POLICY OF GROUP RATE&LIABILITIES Group Rentals ** Groups of 20 or greater will receive free rental skates when renting ice Lock-In-11 p.m.to 5:30 a.m. ** Lock-in groups will be charged an additional$1 per person for groups greater than 150. Personal costs above stated rates include one building attendant ** Supervision will be at the discretion of the Community Center management. This will be based on the number of people to be using the center,as well as the age and type of group. Skate Rental $ 1.50 $ 1.50 $ 2.00 Lifeguards $ 15.00 Per hour $ 15.00 $ 16.00 ** 1 to 50 participants-2 lifeguards required ** 51 to 100 participants-3 lifeguards required ** 100 plus participants-4 lifeguards required. Additional lifeguards determined by management depending on group size and ages. Pool rental $ 50.00 Per Hour.Two hour minimum;plus hourly lifeguard rate. $ 50.00 inactivate seefa ilitiesse Page 2 of 4 Fee Resolution 2010 Service Fee Description 2009 2010 COMMUNITY CENTER ADVERTISING FEES Note:Once groups have paid for the initial multi-year agreement,they may renew the contract each year for 1 year at the pro-rated fee. Ice Resurfacer $ 1,500.00 Per side per year/5 year term($2,500 for both sides) $ 1,500.00 $ 1,500.00 Score Board $ 1,500.00 Per side per year/5 year term $ 1,500.00 $ 1,500.00 On-Ice Logo $ 1,500.00 Per two 4'x4'logos per year/3 year term $ 1,500.00 $ 1,500.00 Dasher Board $ 950.00 Annually/3 year term $ 950.00 $ 950.00 OAK POINT POOL Pool Rental-Lifeguards ** Pool rental in addition to these fees Small slide pool rental only $ 45.00 Per hour for three lifeguards $ 45.00 $ 48.00 Requires a minimum of three lifeguards Add'I lifeguards will be determined by management depending on group size and age Large pool rental only $ 30.00 Per hour for two lifeguards $ 30.00 $ 32.00 Requires a minimum of 2 lifeguards Based on non-holiday hours Rental of entire pool facility $ 75.00 Per hour for five lifeguards $ 75.00 $ 80.00 Requires a minimum of 5 lifeguards STARING LAKE/ROUND LAKE Canoe rack storage $ 45.00 Per rack per season $ 45.00 $ 45.00 ORGANIZED ATHLETICS Adult League Play Non youth sport teams $ 30.00 Per game $ 30.00 $ 40.00 Additional charge when lights are used Ball Field Tournaments State,regional,and national tournaments $ 90.00 Per day,per field $ 90.00 $ 100.00 Other youth and adult tournaments $ 90.00 Per day,per field $ 90.00 $ 100.00 Additional charge when lights are used $ 10.00 Per hour,Per day,per field $ 10.00 $ 15.00 For new soccer field for tournament $ 160.00 Per field set-up $ 160.00 $ 170.00 Clinics and Camps $ 40.00 Per day,per field $ 40.00 $ 50.00 ART CENTER Art Center Membership Benefits 1.10%off classes 2.Invitation to special events 3.10%off select supplies 4.10%off Birthday Parties(Art Center birthday parties only) 5.Special studio access outside of class times 6.Subscription to City News email newsletter 7.$5.00 off Walker Art Center membership 8.$5.00 off the one-time administrative fee at the Eden Prairie Community Center for new members Membership Rates A household includes two adults and up to 4 children. Additional family members can be added to the household membership for$5.00 a person Individual $ 30.00 Annual rate plus applicable taxes $ 30.00 $ 30.00 Household $ 45.00 Annual rate plus applicable taxes $ 45.00 $ 45.00 Page 3 of 4 Fee Resolution 2010 Service Fee Description 2009 2010 PLEASANT HILL CEMETERY Ground Thawing:November 1-April 1 Casket burial $ 75.00 $ 75.00 $ 75.00 Cremation burial $ 50.00 $ 50.00 $ 50.00 Internment Casket burials $ 275.00 Vault size 12 inches by 24 inches(fee rate discontinued in 2010) $ 275.00 NA $ 300.00 Vault size 12 inches by 36 inches(2010 Vaults up to 36 inches long) $ 300.00 $ 300.00 $ 400.00 Vault size 36 inches by 60 inches(2010 Vaults up to 60 inches long) $ 400.00 $ 400.00 $ 500.00 Vault size 48 inches by 96 inches(2010 Vaults up to 96 inches long) $ 500.00 $ 500.00 Cremation burials $ 200.00 Urn size 12 inches and under $ 200.00 $ 300.00 $ 350.00 Urn size over 12 inches $ 350.00 $ 300.00 Lot Resident $ 400.00 20%perpetual care&80%maintenance $ 400.00 $ 400.00 Non-resident $ 600.00 $ 600.00 $ 600.00 Set Grave Markers Single $ 150.00 $ 150.00 $ 200.00 Double $ 200.00 $ 200.00 $ 250.00 COMMUNITY GARDEN PLOTS 20 foot by 30 foot plot Residents only $ 54.00 Senior citizen discount$12.00 $ 54.00 $ 54.00 20 foot by 60 foot plot Residents only $ 108.00 Senior citizen discount$24.00 $ 108.00 $ 108.00 Page 4 of 4 Fee Resolution - Fad l iti es 2010 Group 1 Group 2 Group 3 Facility Facility Information 2009-1 2010-1 2009-2 2010-2 2009-3 2010-3 GROUPS Group 1=School District or Non-Profit Group 2=Resident/Eden Prairie Bus ness Group 3=Non-Resident COMMUNITY CENTER **Eden PrarieAssodationswill bechaged$15.00/hr for tear paties/activitieswherefood and bever ages ae provi ded as pat of the activity. Group I will still becha-ged$5.00/hr for all other meetings ** Request must be submitted to Community Center Manager or Cuomer service Repritativea minimum of two weds prior to requested date Timesard dates must not conflict with al existing program or activity. City programs have priority. ** Eden Prairie Athletic Associations receive onefreemeeting room use per month. ** For Group II aid Group III,discounted meeting roomsae avai I.7:00 an to 3:00 pm,Tuesto Thur. MEETING ROOMS Beginning in2010 all meeting roomswillbePlusApplicabletax CanbriaRoom 2hrsminimum booking $ 40.00 $ 45.00 Per Hour $ 50.00 $ 50.00 Per Hour $ 65.00 $ 65.00 Pa-Hour Meeting Room 101,103 2hrsminimum booking $ 15.00 $ 15.00 Pa-Hour $ 20.00 $ 20.00 Pa-Hour $ 35.00 $ 35.00 Per Hour Mewing Room 201 2hrsminimum booking $ - $ 30.00 Per Hour $ - $ 35.00 Per Hour $ - $ 50.00 Per Hour Meeting Rooms202,204 2hrsminimum booking $ 20.00 Pa-Hour $ 25.00 Pa-Hour $ 40.00 Per Hour Meeting Rooms203/204 2hrsminimum booking $ 25.00 $ 25.00 Pa-Hour $ 30.00 $ 30.00 Pa Hour $ 45.00 $ 45.00 Pa-Hour Lounge 2hrsminimum booking $ 25.00 $ 25.00 Pa-Hour $ 30.00 $ 30.00 Pa-Hour $ 45.00 $ 45.00 Pa-Hour audio A Per hour-required Fitness lnstructor fee in addition $ 40.00 Per Hour $ 40.00 Pa Hour $ 40.00 Per Hour audio B Per hour-required Fitness lnstructor fee in addition $ 30.00 Per Hour $ 30.00 Pa Hour $ 30.00 Per Hour Parking Permits 2009/2010 school yea-August 9th thru November 30th $ 350.00 inactivate $ 350.00 inactivate $ 350.00 inactivate 2009/2010whool yea--December 1st thru Februay28t $ 175.00 inactivate $ 175.00 inactivate $ 175.00 inactivate 2009/2010 school year-Mach 1st thru June 10th $ 100.00 inactivate $ 100.00 inactivate $ 100.00 inactivate Full year rate-Community Center $ 350.00 $ 350.00 $ 350.00 Full year rate-Round Lake $ 200.00 $ 200.00 $ 200.00 Pro Rate beg.Dec.1-EPCC $ 175.00 $ 175.00 $ 175.00 Pro Rate beg.Dec.1-Round Lake $ 100.00 $ 100.00 $ 100.00 Pro Rate beg.Ma.1-EPCC $ 87.50 $ 87.50 $ 87.50 Pro Rate beg.Ma.1-Round Lake $ 50.00 $ 50.00 $ 50.00 Replacement Permit $ 50.00 $ 50.00 $ 50.00 $ 50.00 $ 50.00 $ 50.00 Racquetball Freewith membership $ 7.50 $ 8.00 Per Hour/pa $ 7.50 $ 8.00 Per Hour/pa $ 7.50 $ 8.00 Per Hour/per Page 1 of 4 Fee Resolution - Fad l iti es 2010 Group 1 Group 2 Group 3 Facility Facility Information 2009-1 2010-1 2009-2 2010-2 2009-3 2010-3 GROUPS Group 1=School District or Non-Profit Group 2=Res dent/Eden Prairie Bus ness Group 3=Non-Res dent I ceArena Rinks1,2,3 Spring primetime $ 165.00 $ 175.00 Per Hour $ 165.00 $ 175.00 Per Hour $ 165.00 $ 175.00 Per Hour Mach 1 thru June 13-3 p.m.to 11 p.m. Monday-Friday,weekends,holiday,&non-school days Spring non-primetime $ 140.00 $ 150.00 Pa Hour $ 140.00 $ 150.00 Pa Hour $ 140.00 $ 150.00 Pa Hour Mach 1 thru June 13-before p.m.aid after 11 p.m. Monday-Friday; Summertime $ 140.00 $ 165.00 Per Hour $ 140.00 $ 165.00 Pa Hour $ 140.00 $ 165.00 Pa Hour June 14 thru Aug 31-6 am.to 11 p.m. Fall primetime $ 165.00 $ 165.00 Per Hour $ 165.00 $ 165.00 Per Hour $ 165.00 $ 165.00 Per Hour Saptanba 1 thru Saptember 30-3 p.m.to 11 p.m. Monday-Friday,weekends holiday,&non-school days Fall non-prime time $ 140.00 $ 150.00 Pa Hour $ 140.00 $ 150.00 Pa Hour $ 140.00 $ 150.00 Pa Hour September 1 thru September 30-before 3 p.m.aid after 11 p.m. Monday-Friday; Winter primetime $ 175.00 $ 185.00 Per Hour $ 175.00 $ 185.00 Per Hour $ 175.00 $ 185.00 Per Hour October 1 thru February 29-3 p.m.to 11 p.m. Monday-Friday,weekends holiday,&non-school days Winter non-primetime $ 140.00 $ 150.00 Per Hour $ 140.00 $ 150.00 Per Hour $ 140.00 $ 150.00 Per Hour October 1 thru Februay 29-before 3 p.m.and after 11 p.m. Monday-Friday; Commuity Center Primetime-6 am.to 5 p.m.Monday thru Seturday/nc $ 61.00 $ 63.00 Per Hour $ 61.00 $ 63.00 Per Hour $ 61.00 $ 63.00 Per Hour Pool Rental Non-pri meti me-5 p.m.to 9 p.m.Monday thru Sanday $ 51.00 $ 53.00 Per Hour $ 51.00 $ 53.00 Per Hour $ 51.00 $ 53.00 Per Hour (capacity 268) Discounted rate-9 p.m.to 11 p.m.Monday thru Sandaa $ 46.00 $ 48.00 Per Hour $ 46.00 $ 48.00 Per Hour $ 46.00 $ 48.00 Per Hour Wallyball Fesschaigal to$25 per court for 90 minutesof play. EF $ 22.50 $ 25.00 pa court $ 22.50 $ 25.00 per court $ 22.50 $ 25.00 per court OAK POINT POOL ** Lifeguards must be added at the hourly rate; small slide pool rental only-minimum 3lifeguads lagepool rental only-minimum of 2lifeguads rental of entire pool facility-minimum of 5lifeguads ** Additional lifeguadswill bedetermined by management depending on group szeaid age. ** 5ndayrentalsrequireal additional$31.50 ai hour mantanaice fee for the rental of 6l ales of the pool. For Sanday rental of the enti re pool,an additional$55.00 an hour i s requi red. Oak Point Pool Rental Primetime:6am.-5 p.m.,Mon-Set;and noon-5 p.m. $ 61.00 $ 63.00 Per Hour $ 61.00 $ 63.00 Pa Hour $ 61.00 $ 63.00 Pa Hour Non-primetime:5 p.m.-9 p.m.,Mon-San $ 51.00 $ 53.00 Pa Hour $ 51.00 $ 53.00 Pa Hour $ 51.00 $ 53.00 Per Hour Discount rate:9 p.m.-11 p.m.,Mon-San $ 46.00 $ 48.00 Per Hour $ 46.00 $ 48.00 Pa Hour $ 46.00 $ 48.00 Pa Hour Page 2 of 4 Fee Resolution - Fad l iti es 2010 Group 1 Group 2 Group 3 Facility Facility Information 2009-1 2010-1 2009-2 2010-2 2009-3 2010-3 GROUPS Group 1=School District or Non-Profit Group 2=Resident/Eden Prairie Bus ness Group 3=Non-Resident PARK FACI LITI ES RENTAL Beginning in 2010 all meeting roomswill be PlusApplicable tax **All groups of over 100 will be chaged full day rate ** All paksREQUIREa$200deposit ** Eden Prairie School District programschaged only direct cost for AI pa-ks dud ng the school day. ** No private group of over 300 will beallowedtoresavefacilitiesatanypak.(Maximum number at aaingPak will be150.) **Minimum 2 hour rental booking Crestwood Pak Building Full Day-Maximum capacity vaies $ 80.00 $ 85.00 $ 80.00 $ 85.00 N/A N/A HomeNadHillsBan 1/2 Day-Maxi mum capacity varies $ 110.00 $ 110.00 $ 110.00 $ 110.00 N/A N/A Full Day-Maximum capacity vales $ 150.00 $ 110.00 $ 150.00 $ 150.00 N/A N/A Miller Pak Building Full Day-Maximum capacity vales $ 80.00 $ 85.00 $ 80.00 $ 85.00 N/A N/A Edenvale Pa-k Building Full Day-Maximum capacity vales $ 85.00 $ 85.00 N/A Forest Hills Pak Building Full Day-Maximum capacity vales $ 85.00 $ 85.00 N/A Nesbitt-Preserve Park Building Full Day-Maximum capacity vales $ 80.00 $ 85.00 $ 80.00 $ 85.00 N/A N/A Outdoor Center Per hour-Maxi mum capacity vales inactivate inactivate inactivate inactivate inactivate inactivate Purgatory CrescPak 1/2 Day-Maximum capacity vaies $ 135.00 $ 135.00 $ 135.00 $ 135.00 N/A N/A -Lambert Pavilion Full Day-Maximum capacity vales $ 195.00 $ 195.00 $ 195.00 $ 195.00 N/A N/A Riley Lake Park Pavilion 1/2 Day-Maci mum capacity varies $ 135.00 $ 135.00 $ 135.00 $ 135.00 N/A N/A Full Day-Maximum capacity vales $ 195.00 $ 195.00 $ 195.00 $ 195.00 N/A N/A Riley-JacquesBa-n Per hour-Maximum capacity vales $ 40.00 $ 40.00 $ 40.00 $ 40.00 N/A N/A Round Lake Pak Building 1/2 Day-Maximum capacity varies $ 110.00 $ 110.00 $ 110.00 $ 110.00 N/A N/A Full Day-Maximum capacity vales $ 150.00 $ 150.00 $ 150.00 $ 150.00 N/A N/A Round Lake Pavilion 1/2 Day-Maximum capacity varies $ 110.00 $ 110.00 $ 110.00 $ 110.00 N/A N/A Full Day-Maximum capacity vales $ 150.00 $ 150.00 $ 150.00 $ 150.00 N/A N/A 3aingLakePa-kAmphitheatre Per hour-Maximum capacity vales $ 55.00 $ 55.00 $ 55.00 $ 55.00 N/A N/A Audio Technician Sound Tech&Sound Equipment $ 35.00 $ 35.00 $ 35.00 $ 35.00 N/A N/A 3aingLakePakBuilding 1/2 Day-Maximum capacity varies $ 110.00 $ 110.00 $ 110.00 $ 110.00 N/A N/A Full Day-Maximum capacity vales $ 150.00 $ 150.00 $ 150.00 $ 150.00 N/A N/A Warning Housss(Dec 15-Ma 1) Pa-hour-Attendant required $ 10.00 $ 10.00 Pa-hour $ 30.00 $ 30.00 Pa-hour N/A N/A Pa-hour Page 3 of 4 Fee Resolution - Fad l iti es 2010 Group 1 Group 2 Group 3 Facility Facility Information 2009-1 2010-1 2009-2 2010-2 2009-3 2010-3 GROUPS Group 1=School District or Non-Profit Group 2=Resident/Eden Prairie Bus ness Group 3=Non-Res dent SENIOR CENTER RENTAL Beginning in 2010 all meeting roomswill be PlusApplicable tax **Evening rentalsrequirea2 hr minimum booking Community Room Per hour-Maximum capadty approx.90 theatre style,5 $ 25.00 inactivate Pa hour $ 30.00 inactivate Per hour $ 30.00 inactivate Per hour Community Room/Kitchen Pa hour-I ndudesuseof kitchen appliances loungf $ 35.00 $ 40.00 Pa hour $ 40.00 $ 45.00 Pa hour $ 40.00 $ 45.00 Per hour Kitchen Pa hour-Approx.15 people indudmuseofapplidices $ 15.00 $ 20.00 Pa hour $ 20.00 $ 20.00 Pa hour $ 20.00 $ 20.00 Per hour Room 201 Pa hour-Approx.40 peopletheater style,25 to 30 table $ 20.00 $ 25.00 Pa hour $ 25.00 $ 30.00 Pa hour $ 25.00 $ 30.00 Per hour Room 203 Pa hour-Approx.25 peopletheater style,15 to 20 table $ 15.00 $ 20.00 Pa hour $ 20.00 $ 25.00 Pa hour $ 20.00 $ 25.00 Per hour Room 209 Per hour-Approx.10 to 15 people $ 10.00 $ 15.00 Per hour $ 15.00 $ 20.00 Per hour $ 15.00 $ 20.00 Per hour Room 200 Per hour-Approx.10 to 15 people $ 15.00 Per hour $ 20.00 Per hour $ 20.00 Per hour Page 4 of 4 CITY COUNCIL AGENDA DATE: August 18, 2009 SECTION: Public Hearings DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: IX.B. Community Development/ Planning AT&T Cellular Tower—Olympic Hills Janet Jeremiah/Scott A. Kipp Requested Action Move to: • Close the Public Hearing; and • Adopt the Resolution for Site Plan review on 23.44 acres. Synopsis AT&T is proposing a new 100-foot cellular monopole and mechanical equipment building at the Pax Christi Catholic Community to provide improved cellular coverage for the surrounding area, particularly to the southeast. The plan meets city requirements for setback and transition. Background On June 18, 2009, the proponent held a meeting on the Pax Christi Catholic Community property to discuss a compromise for the relocation of the 100-foot cellular monopole on the Church property. Representatives from AT&T Cellular, Pax Christi Church, the Senior Planner for Eden Prairie, and approximately fifteen neighborhood residents were in attendance. After significant discussion it was agreed that the monopole would be shifted approximately 170 feet south from its previous location, or approximately 30 feet farther south from the northwest corner of the building. This location provides additional screening of the monopole by the building itself and a stand of large trees just to the west. A monopole setback from residentially zoned property requires four feet of setback for each foot of tower. Based on the 100 foot tall monopole a setback of 400 feet is required. The proposed setbacks are 560 feet to the east, 600 feet to the south, 800 feet to the west, and 1,170 feet to the north meeting code. The 120-Day Review Period Expires on September 17, 2009. Planning Commission Recommendation The Planning Commission continued the review this project at its June 8 meeting so the proponent, church, and neighbors could meet on site and address the relocation of the tower from its original location adjacent to Purgatory Creek, as recommended in the Staff Report. The Commission voted 9-0 to recommend approval of the project at its July 13, 2009 meeting. Attachments 1. Resolution for Site Plan Review 2. Staff Report dated June 5, 2009 3. Staff Report dated July 10, 2009 4. Location Map 5. Land Use Map 6. Zoning Map 7. Aerial Photo 8. Planning Commission Minutes dated June 8, 2009 9. Planning Commission Minutes dated July 13, 2009 10. Letters from Property Owners CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO. 2009- A RESOLUTION GRANTING SITE PLAN APPROVAL FOR AT&T CELLULAR TOWER—OLYMPIC HILLS BY AT&T CELLULAR WHEREAS, AT&T Cellular, has applied for Site Plan approval to construct a 100-foot tall monopole cellular tower on the Pax Christi Catholic Community property; and WHEREAS, the Planning Commission reviewed said application at a public hearing at its July 13, 2009 meeting and recommended approval of said site plan; and WHEREAS, the City Council has reviewed said application at a public hearing at its August 18, 2009 meeting. NOW, THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE, that site plan approval be granted to AT&T Cellular based on plans stamp dated August 10, 2009. ADOPTED by the City Council of the City of Eden Prairie this 18`'' day of August, 2009. Phil Young, Mayor ATTEST: Kathleen Porta, City Clerk STAFF REPORT TO: Planning Commission FROM: Scott A. Kipp, Senior Planner DATE: June 5, 2009 SUBJECT: AT&T Cellular Tower—Olympic Hills APPLICANT: Buell Consulting, Inc. OWNER: Pax Christi Catholic Community LOCATION: 12100 Pioneer Trail 120 DAY REVIEW: Expires September 17, 2009 REQUEST: 1. Site Plan Review on 23.44 acres Staff Report—AT&T Cellular Tower— Olympic Hills June 5, 2009 Page 2 BACKGROUND AT&T is proposing a new cellular monopole and mechanical equipment building at the Pax Christi Catholic Community to provide improved cellular coverage for the surrounding area, particularly to the southeast. The church property is guided Church and zoned Public. Surrounding land uses are residential to the east, south, and west with park/open space to the north. The Purgatory Creek corridor abuts the property to the north. SITE PLAN A site plan review is required by City code for any cellular tower greater than 80 feet in height and/or when it includes a building for housing the mechanical equipment. The proposed 100-foot cellular monopole is located at the northwest corner of the north side parking lot for the church. The monopole is a stealth design whereby the cellular antennas are within the monopole itself. A cellular monopole setback from residentially zoned property requires four feet of setback for each foot of tower height up to a maximum height of 150 feet. Based on the 100-foot monopole a setback of 400 feet is required. The closest proposed setback from residential property is 560 feet to the east, with additional residential setbacks from the south, west and north ranging between 765 feet and 1,000 feet, meeting code. AT&T has evaluated available opportunities to co-locate in a one-half mile radius as required by code. Excel Energy no longer allows cellular co-location on its high voltage power line that traverses the church property. The public utility siren adjacent to the Pleasant View Cemetery was found to be too short to achieve AT&T coverage needs. The code allows a maximum of 20 feet of additional height on public utility structures. This would result in a 50-foot monopole. SHORELAND CODE The north portion of the church property and the cellular monopole are located within a shoreland area since they are within 300 feet of Purgatory Creek. The property is also considered an abutting property since it is within 150 feet of the creek. Structures on abutting property must be setback 150 from the creek. The monopole is setback 235 feet from the creek. Within a shoreland area no alteration or development is permitted on a bluff which is a slope that averages 30% or greater. Some bluff areas are located on the slope down to the creek but are impacted at the location of the monopole. The shore impact zone is located within 50 feet of the ordinary high water level of the creek. No development or alteration is allowed within this zone. No alteration is proposed. Staff Report—AT&T Cellular Tower— Olympic Hills June 5, 2009 Page 3 BUILDING ARCHITECTURE A mechanical equipment building is proposed as part of the project consisting of aggregate panels. In a public zoning district code requires that 75% of a building exterior consist of face brick, glass, or natural stone. The building elevations need to be revised to meet code and should be face brick to match the church building. LAND USE TRANSITION A Site Plan and Architectural Design Review require an evaluation of, among other things, the preservation and enhancement of the natural and built environment, including lake and creek encroachment. Transitions are required where there are differences in land use, building mass, height, or densities. The code states that transitions may be accomplished by increased setbacks, berming,planting, larger lot sizes, lower densities, lower floor area ratios, and smaller structures. The proposed placement of the 100-foot monopole and mechanical equipment building at the corner of the parking lot, even with a stealth design, allow for prominent view from the general public and residential property primarily from the east, and visual impact on the Purgatory Creek corridor to the north. Screening of the monopole is not possible using landscaping and berms. Relocating the monopole and building structure to the northwest side of the church building would provide a greater setback from the creek corridor and public view and minimize the view of the monopole from adjacent land uses. SUMMARY AT&T has evaluated the possible co-location opportunities around the proposed site but these sites do not address the coverage needs. While the proposed monopole and mechanical equipment building meet the setback requirements of the code, the proposed plan may not thoroughly address the transitional needs for the visual impact on the Purgatory Creek corridor and differing land uses. Moving the tower and equipment building to the northwest side of the church building can provide a greater setback from the creek corridor and minimize the public views of the monopole. STAFF RECOMMENDATION Option 1 Recommend approval of the following request: • Site Plan Review on 23.44 acres This is based on plans stamped dated May 20, 2009 and the staff report dated June 5, 2009, and the following conditions: Staff Report—AT&T Cellular Tower— Olympic Hills June 5, 2009 Page 4 1. Prior to review by the City Council the proponent shall revise the plan as follows: A. The exterior elevations for the mechanical equipment building shall be in face brick to match the church building. B. Provide a landscaping plan showing coniferous and deciduous trees to buffer the mechanical equipment building from the creek corridor. 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 at the grading limits. 3. Prior to building permit issuance for the property, the proponent shall: A. Provide a landscaping surety equivalent to 150% of the cost of the landscaping. B. Submit building materials and colors for review and approval. Option 2 Recommend a continuance to the June 22, 2009 meeting with direction to revise the plans as follows. A. Relocate the monopole and mechanical equipment building to the northwest side of the church building. B. The exterior elevations for the mechanical equipment building shall be in face brick to match the church building. Staff recommends Option 2. STAFF REPORT TO: Planning Commission FROM: Scott A. Kipp, Senior Planner DATE: July 10, 2009 SUBJECT: AT&T Cellular Tower—Olympic Hills APPLICANT: Buell Consulting, Inc. OWNER: Pax Christi Catholic Community LOCATION: 12100 Pioneer Trail 120 DAY REVIEW: Expires September 17, 2009 REQUEST: 1. Site Plan Review on 23.44 acres BACKGROUND AT&T is proposing a new 100-foot cellular monopole and mechanical equipment building at the Pax Christi Catholic Community to provide improved cellular coverage for the surrounding area, particularly to the southeast. PLANNING COMMISSION ACTION The Planning Commission continued the project at its June 8, 2009 Planning Commission with the following motion: MOTION by Schultz, seconded by Wuttke, to recommend a continuance to the first meeting in July for the proponent to have further dialogue with Metropolitan Airports Commission regarding existing pole facilities, specifically at 9813 Flying Cloud Drive. Also, to have further communication with the Pax Christi Church Council or representatives for further compromise, and to meet with local residents that attended this public meeting to further compromise with and between the proponent, Church, and immediate residents in the area, and the project proponent have dialog with Hennepin County as it relates to the reconstruction of Pioneer Trail and seek recommendation through Hennepin County if there are any possibilities to co-exist with any future pole or tower structures the County may have. Motion carried 6-0. The proponent has addressed the specific items identified in the motion as follows: 1. Co-location on Existing Tower at 9813 Flying Cloud Drive Based on AT&T analysis of a 30-foot increase in height to co-locate on the existing 87-foot tower(117 feet) will not provide the coverage necessary as depicted in the propagation maps Staff Report—AT&T Cellular Tower— Olympic Hills July 10, 2009 Page 2 supplied in the proponents materials, and the increase in tower height would penetrate the height restrictions necessary to protect the airport approach corridors according to MAC. 2. Relocation of Monopole on Church Property On June 18, 2009, the proponent held a meeting on the Pax Christi Catholic Community property to discuss a compromise for the relocation of the 100-foot cellular monopole on the Church property. Representatives from AT&T Cellular, Pax Christi Church, the Senior Planner for Eden Prairie, and approximately fifteen neighborhood residents were in attendance. The June 5, 2009 staff report recommended the monopole shift toward the south to the northwest corner of the church building. After significant discussion it was agreed that the monopole would be shifted approximately 170 feet south from its previous location, or approximately 30 feet farther south from the northwest corner of the building. This location provides additional screening of the monopole by the building itself and a stand of large trees just to the west. A monopole setback from residentially zoned property requires four feet of setback for each foot of tower. Based on the 100 foot monopole a setback of 400 feet is required. The proposed setbacks are 560 feet to the east, 600 feet to the south, 800 feet to the west, and 1,170 feet to the north meeting code. The mechanical equipment building will be located to the west of the existing trash enclosure building. Pax Christi Catholic Community has provided a letter to the Planning Commission indicating its support for the relocation. 3. Hennepin County's Pioneer Trail Project The proponent discussed co-location possibilities as part of the Pioneer Trail improvements currently underway. Hennepin County indicated no structures are included in the project taller than 30 feet. TRANSITION The transition is better than the previous plan: • Greater setback from the creek corridor(an additional 170 feet) • Exceeds the 4:1 setback ratio to residential property • Church building and tree mass provide significant screening Staff Report—AT&T Cellular Tower— Olympic Hills July 10, 2009 Page 3 BUILDING ARCHITECTURE The mechanical equipment building architecture has been revised to show face brick to match the church building meeting code. STAFF RECOMMENDATION Recommend approval of the following request: • Review on 23.44 acres This is based on plans stamped dated June 29, 2009, and the staff reports dated June 5, 2009 and July 10, 2009 and the following conditions: 1. Prior to review by the City Council the proponent shall revise the plan as follows: A. Provide a landscaping plan showing coniferous and deciduous trees to buffer the mechanical equipment building 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 at the grading limits. 3. Prior to building permit issuance for the property, the proponent shall: A. Provide a landscaping surety equivalent to 150% of the cost of the landscaping. B. Submit building materials and colors for review and approval. Area Location Map - AT & T Cell Tower - Olympic Hills project Address: 12100 Pioneer Trail 21 OA Sunnybrook Road c\ *1_ 1 w T1 Creekwood Dr. Homeward Hills Roa W4fr *4 \ 0 illie ,- *iiii N'N ...."--„,,, Approximate Tower Location ak, if II *0 EIVI • *Me ,4.*1 • SITE VP 644' Pax Christi Churchi 0 II - II Woodridge Cir. ( / Pioneer Trail ALIN IIfFrtr P I e j _ [ - V4.1 41 , _ Alai ME. k Feet 1,000 500 0 1,000 Guide Plan Map A & T Cell Tower - Olympic Hills 12100 Pioneer Trail 1 l..t--...l ke/As ol**iopd.11:1 1is1w.n-Ira-4 1 I1e4u.ie .s iw4r1as Nul.I ee11Pum.a sAkm.i l4..igi.1 op aiI I bm=rm.W-kIt.ug1 _—, rip il mI-:a0wM o.EO . IM,M 1 IWI. -::1 ?i4 C .. "fi.., .e!1.k# 1/e 1.mw.I �44tiiti!1NI1tti1Homeward Hills ■.,' m • ra 'ø%JI1rI 1mrMIiI lI.('l.i1-1°---.ini'.1 F �• A mu Approximate cell tower location ■ ■■ P.'�r •,1 *A Pax Christi Chruch ! *r ,Ji1' viI*7 m A . • . .■ ■■� �1I , . ; ` Woodridge Cir. 6. IMM MN mommm . "ma .. •O ■�\�■ ■ 1w aim ft I""""■ o— ��a I D■ ■k Am -- • Pioneer Trail l'� ` 1?*IP. �''III lb _ _ - •-el i - ': l` Wit _ • e I 61 BM 1 Plan _.r.>V �iA�_......■■■. . Low Density Residential 0-2.5 Units/Acre Neighborhood Commercial Streams %/A Low Density/Public/Open Space Community Commercial —Metropolitan Urban Service Line(MUSA) Medium Density residential 2.5-10 Units/Acre ■ Regional Commercial Principal Arterial Medium Density Residential/Office ■ Park/Open Space —A Minor Arterial —B Minor Arterial ' I ' MI High Density Residential 10-40 Units/Acre ■ Public/Quasi-Public DATE Approved 03-19-03 DATE Revised 12-06-06 —Major Collector DATE Revised 01-07-05 DATE Revised 03-01-07 E E N Office Golf Course DATE Revised 11-07-05 DATE Revised 06-01-07 Minor Collector DATE Revised 02-23-06 DATE Revised 10-01-07 DATE Revised 03-23-06 DATE Revised 03-01-08 Office/Industrial ■ Church/Cemetary DATE Revised 06-23-06 DATE Revised 03-01-09 //2 Office/Public/Open Space Open Water PRAIRIE ■ Industrial Right-Of-Way E ..r1..om„—=.....��...a. ..,....,®.aF,..a. LIVE•WORK•QA EAM Airport Boundary 0.25 0.125 0 I I Miles Zoning Map Location AT & T Cell Tower - Olympic Hills 12100 Pioneer Trail, Eden Prairie MN VI tialti-- OM We' I 0. /Aar Illft Iie = Sunneybrook Road Y _:: %pp / 1....„ *ii. . p .1-1 ,...if iiii J.. i Alt Allk � apm ,-- I it: Homeward Hills Road .. II ituia Creekside Drive t Aikt. 4 at r 4-flis slimplip, 4 -4 . 1 11011 ,Am*, /_..Ai" ( -Ai% ________„ ' 140,A.I .Fro \. _,,, fifisks 1101111;)111111116 --------L_____________ fivftf ..• - \k,1 .PAr,„.6..:.. owl . :7„troki.. ali � • Pax Christi Church Approximate cell tower location - ..7 ilVilin , INAA,... 0 \,,...___ ., „ „� Woodridge Cir Pioneer Trail 4i , , _._ .....,. _ _______ ... „kb... 4.4. ‘,... . '',..7 - iii ______ 4"434;#4...4, e ni • eta spy i. r Rural -Regional Commercial Shoreland Management Classifications R1-44 One Family-44,000 sf.min. I—I TC-C I NE I Natural Environment Waters R1-22 One Family-22,000 sf min. I TC-R I RD I Recreational Development Waters R1-13.5 One Family-13,500 sf min. I— I TC-MU I GD I General Development Waters(Creeks Only) ', , +,. , R1-9.5 One Family-9,500 sf min. Industrial Park-2 Acre Min, ® 100- Year Floodplain RM-6.5 Multi-Family-6.7 U.P.A.max. Industrial Park- 5 Acre Min. EDEN Up dated through approved Ordinances#26-2008 - RM-2.5 Multi-Family-17.4 U.P.A.max. Pr]General Industrial-5Acre Min. Ordinance#33-2001(BFI Addition)approved,but not shown on this map edition PRAIRIE Office J Public Date:March 1,2009 -Neighborhood Commercial I Golf Course eetdiscrapa Yralataaroa eaiagelassieea nnnn is nningmap.maomha a .;, and attached legal desenpdon on file at Eden Paine City Center will prevail. -Community Commercial Water -Highway Commercial Right of Way 0 0.15 0.3 -Regional Service Commercial Milesmmo.. ...P.rmn..a,om .......,..m ,.. ,m, Aerial View AT & T Cell Tower - Olympic Hills 12100 Pioneer Trail . - --- \ L � `; '- �_ Sunnybrook Road _ _ -- - 410* . .. . . . 7-- itb #e timil . .c . , . . . . _ . r ' Creekwood Drive ,-- A. If 1,4/ . _n di I• •s— 1 Homeward Hill Road \14111 , k‘ '..,...73 . 4".\. ift.i • • • . ..--- # lip Rik 41 . '--.,--•.,,- 4•.:,,:,tt< ak .. .Attp eft ' . - ,.:4 r '.- ..1 '\--; . ' .iiiir hitt,* ' ® ig isir, •.-. T • Approximate Tower Location . w- . .. .... *701 ' 5.*dAlr._.Ar&AO #41. -- ' . .t.:,,,, ITIAI Witar(S4F/ . �� 111111 Pax.Christi Church • ® 4r• �® IP- Woodridge Cir. ���� 4 NUM Mpg __-//)--- . ' :" ----''' -- - Nem Bilk ,_.__-... - _. -_ ... 1 .,Lr .----:-.,- ; ,, - _- _ - ,g- , , -. :, �E �� ?= - S. 11 ,�il® Pioneer Trail _ = N� C: . ' -4 14 -I ti.7.2 iti, III ia•-h--- .• -,- tigtimil inns ma : , r ' 1116%A mil 27. -=: "AI . t: 4: L .._ ..,,,„$., 04,4 • i,t, i. ris,: '�' �� #eh .�`` '' S. • • ., 4,,...44, . . .., tvt R ®®® • yL l � ' �`, b # 1111 41 ►.I a� �` A . ti '' ti A. yip 's.?. ,:.. c''~' tr s 4 :itii APPROVED MINUTES EDEN PRAIRIE PLANNING COMMISSION MONDAY,JUNE 8, 2009 7:00 P.M., CITY CENTER Council Chambers 8080 Mitchell Road COMMISSION MEMBERS: John Kirk, Katie Lechelt, Jacob Lee, Alexander Martin, Jerry Pitzrick, Peter Rocheford, Kevin Schultz, Jon Stoltz, Travis Wuttke STAFF MEMBERS: Scott Kipp, Senior Planner Julie Krull, Recording Secretary I. PLEDGE OF ALLEGIANCE — ROLL CALL Chair Stoltz called the meeting to order at 7:00 p.m. Pitzrick and Rocheford were absent. II. APPROVAL OF AGENDA MOTION by Kirk, seconded by Schultz, to approve the agenda. Motion carried 7-0. III. MINUTES A. PLANNING COMMISSION MEETING HELD ON MAY 11, 2009 MOTION by Schultz, seconded by Wuttke, to approve the minutes. Motion carried 5-0. Lechelt and Stoltz abstained. IV. INFORMATIONAL MEETINGS V. PUBLIC MEETINGS VI. PUBLIC HEARINGS AT&T CELLULAR TOWER—OLYMPIC HILLS Request for: • Site Plan Review on 23.44 acres Location: 12100 Pioneer Trail James Ries and Peter Campbell, representing AT& T,presented the proposal. They said they would like to put this tower up on the northwest corner of the parking lot that is at the rear of the church. It would be a 100 foot stealth tower. Stoltz asked Kipp to review the staff report. Kipp said there are two staff recommendations on page 3 and 4 of the staff report. Option 1 is for approval. Option 2 is a recommendation of continuance to the June 22, 2009 meeting with direction to revise the plans as follows. A. Relocate the monopole and mechanical equipment building to the northwest side of the church building. B. The exterior elevations for the mechanical equipment building shall be in face brick to match the church building. Staff recommends Option 2. Mr. Ries stated they could put up brick façade to match the church. He pointed out if the site was moved 80 to 100 feet east, there are too many power lines in that area and it would not be advisable to put the tower next to them. He stated they have been working with Pax Christi to come up with this current plan and are all in agreement. Stoltz opened the meeting up for public input. Terry Nerhus, of 9495 Homeward Hills Road, stated he is located east of the pole and would not be in favor of this project and believes it would decrease the value of his home. Matt Kleffner, of 9559 Woodridge Circle, stated he lives to the west side of the project and said he has health concerns in regards to this project. He also said the visual impact would be very obvious. He felt the tower could be placed in the dumpster area of the property. He submitted a letter to the Commission. Ken Reineccius, of 12100 Pioneer Trail, is the Director of Operations at Pax Christi. He utilized the overhead projector to show the proposed site of the project. He showed where the church would like to build a playground on site and stated the project is currently on hold due to the economy but in the future they would like this area to be used for the playground. They do not want to move the tower because currently it would be out of range of the proposed playground and basketball area. Kipp stated they would like them to move the tower back a portion as to have the building screen it. Lee asked with this stealth pole if other providers could co-locate on it. Mr. Campbell stated one other service provider could co-locate on the tower. Alexander asked if the pole could be lowered and not have the option of co- locate. Mr. Campbell said Code requires them to be able to have another carrier co-locate on the pole. Alexander asked if this was cost effective to have another carrier co-locate on the pole. Mr. Campbell stated it was cost effective. He also stated the community as a whole would benefit from this tower because it would increase the coverage area. Mr. Kleffner asked, regarding other alternatives, if there were other poles in the area, such as the one by Allied Waste, or light poles, that could be turned into a tower. He stated Option 2 seemed to be the best option for this project. Stoltz asked Mr. Reineccius if Pax Christi was against moving the tower on their property. Mr. Reineccius said it would sour them because they wanted to keep that area for the day care center. Mr. Nerhus stated the neighbors would like to see the tower moved. Pax Christi is getting the revenue but the neighbors have to look at it. Schultz asked if the project proponent spoke with airport authorities and asked why they did not select the area by Allied Waste. Mr. Ries said that would be moving away from the coverage area. Schultz said if there has not been any dialog with MAC, than he has a problem with approving this project. Lee asked the project proponent what level of communication they had with Xcel Energy. Mr. Ries said his conversation with Xcel was limited, but safety was Xcel's main concern and denied our request to locate on their power line. Schultz said he would like the parish at Pax Christi to come back with a compromise and to recommend that AT&T have more dialog with MAC to see if something can be put up in that area. Mr. Campbell asked if they were to move the tower would the Commission approve the request. Stoltz said the Commission would be more agreeable if the following were met; conversation with MAC about relocating, discussing with City Staff about building materials, and talking with neighbors in the area and to come back to the June 22 Planning Commission Meeting with the results. Kipp said in order for them to come back to the June 22 meeting, they would have to have everything completed and turned in by June 17th or 18th. Mr. Campbell suggested a Planning Commission Meeting in July, so as not to rush this. MOTION by Schultz, seconded by Wuttke, to recommend a continuance to the first meeting in July for the proponent to have further dialogue with Metropolitan Airports Commission regarding existing pole facilities, specifically at 9813 Flying Cloud Drive. Also, to have further communication with the Pax Christi Church Council or representatives for further compromise, and to meet with local residents that attended this public meeting to further compromise with and between the proponent, Church, and immediate residents in the area, and the project proponent have dialog with Hennepin County as it relates to the reconstruction of Pioneer Trail and seek recommendation through Hennepin County if there are any possibilities to co-exist with any future pole or tower structures the County may have. Motion carried 6-0. APPROVED MINUTES EDEN PRAIRIE PLANNING COMMISSION MONDAY,JULY 13, 2009 7:00 P.M., CITY CENTER Council Chambers 8080 Mitchell Road COMMISSION MEMBERS: John Kirk, Katie Lechelt, Jacob Lee, Alexander Martin, Jerry Pitzrick, Peter Rocheford, Kevin Schultz, Jon Stoltz, Travis Wuttke STAFF MEMBERS: Stu Fox, Manager of Parks and Natural Resources Michael Franzen, City Planner Scott Kipp, Senior Planner Regina Herron—Planner II Rod Rue, City Engineer Julie Krull, Recording Secretary I. PLEDGE OF ALLEGIANCE—ROLL CALL Chair Stoltz called the meeting to order at 7:00 p.m. Rocheford arrived during the first public hearing. II. APPROVAL OF AGENDA MOTION by Schultz, seconded by Lechelt, to approve the agenda. Motion carried 8-0. III. MINUTES A. PLANNING COMMISSION MEETING HELD ON JUNE 22, 2009 MOTION by Pitzrick, seconded by Schultz, to approve the minutes. Motion carried 6-0. Kirk and Lechelt abstained. IV. INFORMATIONAL MEETINGS V. PUBLIC MEETINGS VI. PUBLIC HEARINGS A. AT&T Cellular Tower—Olympic Hills - (continued) Request for: • Site Plan Review on 23.44 acres Location: 12100 Pioneer Trail James Ries,representing AT&T, presented the proposal. He started by going over the items that were brought up by the Commission at the previous meeting for staff and project proponent to address. The first item was to look at having a co-location on the existing tower at 9813 Flying Cloud Drive. Mr. Ries stated upon further investigation this would not be a feasible location because the existing 87 foot tower would not provide the necessary coverage. The next item would the possibility of co-location as part of the Pioneer Trail improvements that are currently underway. After contact with Hennepin County, they stated no structures would be included in the area taller than 30 feet. The next item would be the relocation of the monopole on the church property. The project proponent, City Staff, members of Pax Christi, and neighbors worked together to come up with a new location. That location would be 170 feet to the south of the proposed location, behind the northwest corner of the building. This location would add additional screening. Stoltz asked Kipp to review the staff report. Kipp stated Staff, church members and representatives from AT&T met with neighbors and agreed on the new location, which provides additional screening. Staff recommends approval. Stoltz opened the meeting up for public input. Matt Kleffner, of 9559 Woodridge Circle, wanted to thank everyone for accommodations to his concerns over the original placement of the tower. Schultz stated at the June 8th meeting he had concerns regarding the placement of the tower and asked the project proponent to consider other options. He wanted to thank the project proponent for going back to the drawing board and exploring all possibilities. MOTION by Kirk, seconded by Wuttke, to close the public hearing. Motion carried 9-0. MOTION by Kirk, seconded by Wuttke, to recommended approval of the Site Plan Review on 23.44 acres, based on plans stamped dated June 29, 2009 and the staff report dated July 10, 2009. Motion carried 9-0. Comments from ,, a; , c o 04 Matt KIelTuer Keefi r+� r Q J 9559 Woodridge Circle I recently purchased my home adjacent to the west side of Pax Christi, and the view from the home was a dominant factor in choosing it. For most of the year the home overlooks the pond and the proposed sight is out in the open area, directly in the middle of this view. I also have some health concerns about the tower's proximity if the radiation pattern isn't set optimally. I've grouped my comments into three categories: off-site alternatives, on-site a— Iternatives, and health effects. Off-site alternatives Question of fairness: This tower appears to provide coverage benefits primarily to those south of Pioneer Trail,while negatively impacting the visual surroundings of people primarily north of Pioneer Trail. Coverage maps indicate no present problems with serving the area north of Pioneer trail. My understanding is that existing towers must be used wherever possible, but it appears that loopholes exist by claiming insufficient coverage with a single tower. AT&T should show coverage maps and indicate relative cost of using possible multipc existing towers to improve coverage in the area if a single existing tower isn't sufficient. Using existing towers is strongly preferred. On-site alternatives It is disappointing that the power pole on Pax Christi's property can be used. Every neighbor I've spoken with had this option come immediately to mind, and using the existing pole would minimize visual impact. Is this option truly impossible? Locating the pole adjacent to the building, on the north side, toward the west end would minimize visual impact to the neighbors and appears to meet code. With this option, "Option 2", it appears a tower could be placed where the dumpster structure currently is without significantly impacting the Church's future plans. The dumpster structure could be relocated to the proposed tower site. If a tower absolutely will be built on the property, this "Option 2" is strongly preferred over"Option 1". I have a video-camera snapshot available from the west side, from earlier this year, with a power pole and the two options drawn on it. Unfortunately, the video camera is of poor quality and makes the sky look pale whitc-but the general impact can be ascertained. Health effects I want assurance that most of the power is being radiated over those near the to— wer.AT&T should disclose the proposed radiation pattern in the vertical direction, with an estimated exposure levels to those withing a quarter mile of the tower. I typically only see radiation patterns in the horizontal plane. It is also in AT&T's interest to minimize wasted power on those near the tower. CITY COUNCIL AGENDA DATE: August 18, 2009 SECTION: Public Hearings DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: IX.C. Community Prairie Physicians Building Development/Planning Janet Jeremiah/Regina Herron Requested Action Move to: • Close the Public Hearing; and • Adopt the Resolution for Guide Plan Change from Office to Community Commercial on 1.2 acres; and • Approve 1st Reading of the Ordinance for Planned Unit Development District Review with waivers, and Zoning District Change from Office to Community Commercial on1.2 acres. Synopsis The project requires a Comprehensive Guide Plan Change from Office to Community Commercial. Commercial guiding is appropriate for the following reasons: • The site is adjacent to Highway 5. • The site is adjacent to land guided commercial to the east. • Site access is from the frontage road. Background Information No changes are being proposed to the existing building or site plan. The building and site conform to commercial zoning requirements. The 120-Day Review Period Expires on October 2, 2009. Planning Commission Recommendation The Planning Commission voted 9-0 to recommend approval of the project at the July 13, 2009 meeting. Attachments 1. Resolution for Guide Plan Change 2. Staff Report 3. Location Map 4. Land Use Map 5. Zoning Map 6. Aerial photo 7. Planning Commission Minutes 7-13-09 PRAIRIE PHYSICIANS CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2009- 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 Prairie Physicians, by Prairie Physicians is for rezoning the property from Office to Community Commercial; 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: From Office to Community Commercial ADOPTED by the City Council of the City of Eden Prairie this 18th day of August, 2009. Phil Young, Mayor ATTEST: Kathleen Porta, City Clerk STAFF REPORT TO: Planning Commission FROM: Regina Herron, Planner II THROUGH: Michael D. Franzen, City Planner DATE: July 10, 2009 SUBJECT: Prairie Physicians Building APPLICANT/ CB Richard Ellis/ OWNER: Prairie Partners Six, LLP LOCATION: 16570 W. 78th Street 120 DAY REVIEW: Expires October 2, 2009 REQUEST: • Guide Plan Change from Office to Community Commercial on 1.24 acres • Zoning District Change from Office to Community Commercial on 1.24 acres. BACKGROUND The property is guided office. The properties to the north and west and south are guided Medium Density Residential. The property to the East is guided Community Commercial. The property is zoned Office. Surrounding property is zoned Community Commercial,RM-2.5 and RM 6.5. GUIDE PLAN CHANGE The project requires a Comprehensive Guide Plan Change from Office to Community Commercial. Commercial guiding is appropriate for the following reasons: • The site is adjacent to Highway 5. • The site is adjacent to land guided commercial to the east. • Site access is from the frontage road. Staff Report—Prairie Physicians Building July 10, 2009 SITE PLAN No changes are being proposed to the existing building or site plan. The building and site conform to commercial zoning requirements. ARCHITECTURE The plan meets the requirement for 75%face brick,glass,or natural stone for exterior materials for the building Community Commercial zoning district. TREE LOSS AND LANDSCAPE PLAN No significant trees on the property will be removed. The trees behind the building are located on land owned by Edendale Housing located to the north and west. A landscaping plan is not required. STAFF RECOMMENDATION Recommend approval of the following request: • Guide Plan Change from Office to Community Commercial on 1.24 acres • Zoning District Change from Office to Community Commercial on 1.24 acres This is based on plans dated June 25 2009. 2 Staff Report-Prairie Physicians Building July 10, 2009 City of Eden Prairie 2030 Land Use(amended 10-13-08) Land Use Type Acres Residential 7024.20 31.5% Low Density Residential 5514.81 Low Density Residential/Public/Open Space 0 Medium Density Residential 1334.06 Medium Density Residential/Office 0 High Density Residential 175.33 Mixed Land Use 0 Town Center 0 Commercial 573.21 2.7% Regional Commercial 413.71 Community Commercial 90.41 Neighborhood Commercial 69.09 Office 469.19 2.4% Office 469.19 Office/Industrial 0 Medium Density Residential/Office 0 Industrial 1317.10 5.9% Industrial 1317.10 Industrial Office 0 Park/Open Space 3272.55 14.5% Park/Open Space 3272.55 Office/Public/Open Space 0 Airport 548.85 2.4% Airport Safety 0 0 Golf Course 525.77 2.3% Public/Quasi-Public 502.78 2.1% Church/Cemetery 216.94 1.0% Water 1180.86 5.2% Right-of-Way 3127.44 13.8% Total Existing Land Use Within MUSA 19,117.84 96.8% Total Existing Land Use Outside of MUSA 639.85 3.2% Low Density Residential 0 Parks/Open Space 130 Water 509.85 Total Land 19,757.69 100% Source: City of Eden Prairie 3 Area Location Map - Prairie Physicians Building Address: 16570 West 78th Street, Eden Prairie, MN Luther Way \ / / ( c , Carnelian Lane Meadow Lane J 1 SITE / --\>-7 West 78th Street(Highway#5) --_______J D --\-_ DC El) Terrey Pine Drive No Scale Luther Way D 1 I I I I I i meadow Lane Eden Prairie Road _ I'I Carnelian Lane SITE D ..IIIIIIIIIIL---.. D West 78th Street (Highway#5) I l l l l l f : 41IP Terrey Pine Drive 1111111 IP 41 a ,,,,,,,./00,..„,,,,,....._ AL Legend I I Low Density Residential 0-2.5 Units/Acre I I Neighborhood Commercial �T i r7�i,■Low Density/Public/Open Space -Community Commercial 1 V —11 Medium Density residential 2.5-10 Units/Acre—Regional Commercial Guide Plan M a p Medium Density Residential/Office -Park/OpenSpace Prairie Physicians Building ' High Density Residential 10-40 Units/Acre I I Public/Quasi-Public 16570 West 78th Street EDEN 1 I Office 1-7 GolfCourse Eden Prairie, MN 55346 IVA Office/Industrial -Church/Cemetary IVA Office/Public/Open Space I I Open Water No Scale PRAIRIE -Industrial I I Right-Of-Way LIVE•Wp3%•DREAM I / I I I ` Luther Way i i i Eden Prairie Road Meadow Lane Carnelian Lane J SITEI 1 West 78th Street (Highway#5) HWY 5 UII_ _______.....7_ 411111111 MIK\ hi 7 _ 40" Terrey Pine Drive \ I ,a t I Legend I Rural I-Regional Commercial R1-44 One Family-44,000 sf.min. I-TC-C ' T R1-22 One Family-22,000 sf min. MITC-R Zoning Map I� R1-13.5 One Family-13,500 sf min. -TC-MU R1-9.5 One Family-9,500 sf min. 1=1 Industrial Park-2Acre Min, Prairie Physicians Building RM-6.5 Multi-Family-6.7 U.P.A.max. I-Industrial Park-5Acre Min. 16570 West 78th Street MERM-2.5 Multi-Family-17.4 U.P.A.max.I-General Industrial-5 Acre Min. E I E N I I Office I-Public Eden Prairie, MN 55346 Neighborhood Commercial I I Golf Course No Scale PRAIRIE EA Community Commercial I I Water I-Highway Commercial I I Right of Way LIVE•05cc•cream -Regional Service Commercial Aerial View Prairie Physicians Building 16570 West 78th Street (Highway #5) Eden Prairie, Minnesota - , ' A , ILM �• i 41. 1-3.11 .p 41 - it . . . . - - 7 ..• i ' ...10 c ‘ . ' •1 dll . O., - _ 74 1 kr + ` _ yrj , F i ?tip -- t • Luther Way • r Pi.: A A.9.... ..,- r, * -.I- r _ - _ _ + • r _ . :11. ,I.. ,.r ■ ' � -+ .1 - - ' ..-. Carnelian Lane - . mot- - le - ,�. :IIMeadow Lane ,, r. 44 . 1.• ri F • • Lrf•r 1- ••I . . ." i 4-' . i ' -� m 5 r1 I -a7 -�•f _ I -- - - 1 1 .I. ++ ice■ _ •- -ImolaiW I J' ._ I 1 h ....N....-7—"Iiilli *M"Ril e ..... i _ ... , NA r- — - - " - F -- ,.E. West 78th Street(HWY 5) -..- 1 J � 1+I i. � �' r g ti 01 • z 4 \ 4 -- • - i - .1 y y _ _ s t �• I" ' I 1 , 1 i. i • ; 1 ` ) -* - ,+•; `j Ir' . 4 � ,� 41;11 _ _ 1 APPROVED MINUTES EDEN PRAIRIE PLANNING COMMISSION MONDAY,JULY 13, 2009 7:00 P.M., CITY CENTER Council Chambers 8080 Mitchell Road COMMISSION MEMBERS: John Kirk, Katie Lechelt, Jacob Lee, Alexander Martin, Jerry Pitzrick, Peter Rocheford, Kevin Schultz, Jon Stoltz, Travis Wuttke STAFF MEMBERS: Stu Fox, Manager of Parks and Natural Resources Michael Franzen, City Planner Scott Kipp, Senior Planner Regina Herron—Planner II Rod Rue, City Engineer Julie Krull, Recording Secretary I. PLEDGE OF ALLEGIANCE—ROLL CALL Chair Stoltz called the meeting to order at 7:00 p.m. Rocheford arrived during the first public hearing. II. APPROVAL OF AGENDA MOTION by Schultz, seconded by Lechelt, to approve the agenda. Motion carried 8-0. III. MINUTES A. PLANNING COMMISSION MEETING HELD ON JUNE 22, 2009 MOTION by Pitzrick, seconded by Schultz, to approve the minutes. Motion carried 6-0. Kirk and Lechelt abstained. IV. INFORMATIONAL MEETINGS V. PUBLIC MEETINGS VI. PUBLIC HEARINGS C. Prairie Physicians Building Request for: • Guide Plan Change from Office to Community Commercial on 1.24 acres • Zoning District Change from Office to Community Commercial on 1.24 acres. Location: 16570 W. 78th Street Matt Nicoll, a partner in the Prairie Physicians Building, stated he has been involved in this project for the past six years. He pointed out the Prairie Physician Building has been a challenge to fill occupancy and that is the reason for the guide plan to community commercial. They feel they will be able to lease more space by doing that. They will be doing nothing else to the building. Stoltz asked Herron to review the staff report. Herron stated Staff recommends approval and pointed out the site is adjacent to a commercial use and would conform to the surrounding area. Stoltz opened the meeting up for public input. There was no input. Pitzrick asked if rezoning this to commercial would affect the parking requirements. Herron stated the parking requirement would be the same as the previous use. MOTION by Schultz, seconded by Kirk, to close the public hearing. Motion carried 9-0. MOTION by Schultz, seconded by Wuttke, to recommend approval of the Guide Plan Change from Office to Community Commercial on 1.24 acres and Zoning District Change from Office to Community Commercial on 1.24 acres, based on plans stamped dated June 25, 2009 and the staff report dated July 10, 2009. Motion carried 9-0. CITY COUNCIL AGENDA DATE: SECTION: Report of the City Manager August 18, 2009 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: XIV.B.1. Sue Kotchevar, Office of the Approve Second Amendment to Prairie City Manager View Liquor Store Lease I Requested Action Move to: Approve Second Amendment to Prairie View Liquor Store Lease. Synopsis The current lease of the Prairie View Liquor operations expires September 30, 2009. An opportunity has been identified at the Prairie View Mall for the liquor operations as additional space has become vacant at the mall. The lease increases the square footage of the liquor store from approximately 4,248 square feet to 9,498 square feet. The store would relocate to part of the premises formerly occupied by Snyders and the store is next to the Rainbow Foods grocery store. The landlord is providing a turnkey operation and will invest approximately$300,000 into the new premises. The City is responsible for furniture, fixtures, signage, design, security, communications, etc. The lease is for a ten year period and provides a favorable lease rate of $10.00 a square foot with approximately a 2.5% increase every other year. The lease calls for the new store to be operational by November 1, 2009. If for some reason this date is not met, the store opening would be delayed until January 1, 2010. This would provide for less business interruption during the busy holiday season. In 2005, the City hired the McComb Group, LTD. to conduct a market analysis of the liquor operations. This analysis has provided support to decisions regarding the liquor operations. The purpose of the analysis was to determine if the operations adequately cover the Eden Prairie trade areas and if opening new stores or relocating stores would result in increased profit. The analysis concluded the liquor operations sufficiently cover the Eden Prairie trade area and new stores were not recommended. Specific recommendation related to liquor store#3 included relocating the store to improve access and visibility and to increase size. In response to Council questions we asked Mr. McComb to review the market analysis again and provide an updated opinion on recommendations for the Prairie View store and specifically the proposal the City's is considering. Attached is a memo from Mr. McComb. He will also attend the Council Meeting to answer any Council questions. A summary of the findings from the ten page memo are listed below. Summary of Findings The results of our evaluation are summarized below. • The proposed location of Store 3 (Rainbow Store) is superior to the current location. The proposed location next to Rainbow is a natural adjacency for a liquor store. The proposed store will have better visibility, better access, and more convenient parking. The larger store will permit a larger display area similar to Stores 1 (Kowalski Store) and 2 (Cub Foods Store). • Estimated selling area at Store 3 is less than Stores 1 and 2, as well as many of the area's competitive stores. Selling area at the five largest competitors ranges from 4,100 to 9,000 square feet. • Due to its small size, Store 3 has 780 lineal feet of wine display shelving compared to 1,325 feet at Store 2 and 1,702 feet at Store 1. • Store 3's trade area has more households than Store 1, but has lower sales and market share. • Store 3 draws a larger proportion of its sales from nearby employees than Stores 1 and 2. • Liquor sales in 2008 at Stores 1 and 3 are comparable at$834,091 and $883,646, respectively. • Beer sales at Stores 1 and 3 are comparable at $921,490 and $995,244, respectively. • Wine sales at Store 1 were $433,000 higher than Store 3, and wine sales at Store 2 were over$1,000,000 higher. Stores 1 and 2 have larger wine displays. • With a larger wine display, Store 3 will sell more wine and liquor, and possibly more beer. • The proposed annual rent at Store 3 is less than the annual rent at Store 1. • Common area maintenance costs at Store 3 will be slightly less than Store 1. • Property taxes at Store 3 will be higher than Store 1. • Total occupancy costs for Store 3 (with 9,498 square feet)will be less than Store 1 (with 8,002 square feet). • The space size for the proposed Store 3 is larger than needed for a liquor store. The space that is not needed for selling area or storage should be walled off and not used. Increasing wine sales at Store 3 by$400,000 to $500,000 would result in a 14 to 18 percent increase in sales. This should be achievable based on trade area households and household income. Attachments Lease Amendment McComb Group LTD—Memorandum AMENDMENT NO.2 TO LEASE This Amendment No. 2 to Lease (this "Amendment") is entered into as of July , 2009, by and between PRAIRIEVIEW RETAIL LLC, a Delaware limited liability company ("Landlord") and CITY OF EDEN PRAIRIE d/b/a Eden Prairie Liquor Store ("Tenant"). RECITALS: A. Landlord and Tenant entered into a certain Lease dated September 15, 2003, as amended by Amendment No. 1 to Lease dated July 7, 2008 (collectively, the "Lease"), under which Landlord leases to Tenant the premises consisting of approximately 4,248 square feet ("Existing Premises") in the Prairieview Shopping Center(the "Shopping Center") located at 950 and 952 Prairie Center Drive, Eden Prairie,Minnesota. B. Tenant desires to move from the Existing Premises to another space in the Shopping Center, which is comprised of approximately 9,498 square feet as depicted on Exhibit A attached hereto, having an address of 968 Prairie Center Drive, Eden Prairie,Minnesota(the"New Premises"). C. Accordingly, Landlord and Tenant desire to amend the Lease to recognize Tenant's relocation to the New Premises, to extend the Term of the Lease, to adjust the Annual Rent owed by Tenant under the Lease and otherwise modify the terms of the Lease as set forth herein. NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows: 1. Recitals; Definitions. The foregoing recitals are true and correct and are incorporated herein as part of the agreement of the parties. Any word or term with an initial capital letter shall have the meaning given to it in this Amendment or if not so defined herein shall have the meaning given to it in the Lease. 2. New Premises. Subject to the terms and conditions of the Lease and this Amendment, Landlord shall lease to Tenant, and Tenant shall lease from Landlord the New Premises as described in the recitals above and as depicted on Exhibit A attached hereto, for the Extension Term (as defined in Section 3 below). a. Construction. Preliminary plans for permanent improvements to the New Premises prepared by KKe Architects (the "Architect") are attached hereto as Exhibit B and by this reference incorporated herein (the "Preliminary Plans"). The Preliminary Plans have been approved by Landlord and Tenant. The parties acknowledge that the Preliminary Plans are to modify the New Premises to accommodate Tenant's intended use. Landlord shall cause the Architect to prepare final plans (the"Plans"), including a full set of construction drawings,which shall be consistent with, except for mutually agreed upon changes, the Preliminary Plans. The Plans shall be delivered to Landlord and Tenant no later than August 7, 2009 for their review and approval within five (5) days of delivery of said Plans. Upon receiving the approval of the Plans and the issuance of a building permit from the City of Eden Prairie, to the extent required, Landlord shall be responsible at Landlord's expense, for constructing the improvements as shown on the Plans (the "Tenant Improvements") for and on behalf of Tenant. No changes shall be made to the Plans or the Tenant Improvements without the written approval of both Landlord and Tenant, it being acknowledged and agreed by Tenant that Landlord may absolutely withhold its approval to any change in the Plans or the Tenant Improvements that would increase the cost of the Tenant Improvements unless arrangements satisfactory to Landlord are made for Tenant to pay such increase in cost. Any improvements to the New Premises, other than as shown on the Doe#2989627\3 1 Plans, and the furnishing of the New Premises, shall be made by Tenant at the sole cost and expense of Tenant, subject to all other provisions of the Lease and this Amendment. If the Tenant Improvements cannot be substantially completed prior to the estimated Delivery Date (as defined below), then the provisions of Section 2(b) below shall apply. As used in this Lease, "substantial completion" of the Tenant Improvements or their being "substantially completed" means (i) Landlord has completed construction of the Tenant Improvements in accordance with the Plans to such an extent that Tenant may occupy the Premises for the purpose of conducting its business operations therein, subject to completion by Landlord of normal punch list items (the "Punch List Items") and (ii) any required certificate of occupancy/completion or its local equivalent has been issued by the City of Eden Prairie for the New Premises so as to permit the use and occupancy of the New Premises by Tenant. b. Possession. Landlord shall deliver possession of the New Premises to Tenant with the Tenant Improvements thereto substantially completed on or prior to November 1, 2009 (the"Delivery Date"),but delivery of possession prior to such date shall not affect the expiration date of this Lease. Failure of Landlord to deliver possession of the New Premises by the estimated Delivery Date due to any cause beyond the reasonable control of Landlord, including, without limitation, labor or material shortages, strikes, casualty loss, acts of God or failure of the City to timely approve the Plans or issue a building permit (any of the foregoing an "Excused Delay"), shall automatically postpone the Delivery Date and shall extend the expiration date of this Lease accordingly. If Landlord shall be delayed in delivery of the New Premises to Tenant due to Tenant's failure to timely approve the Plans or make any required deposit, changes in or additions to the Plans or the Tenant Improvements made at the request of Tenant or any other delay caused by Tenant or any of its contractors, agents or employees (any of the foregoing a "Tenant Delay"),then in such case the Delivery Date shall be accelerated by the number of days of such Tenant Delay. Notwithstanding anything herein to the contrary, Tenant shall not be obligated to open for business in the New Premises and commence to pay the Monthly Installment of Rent or Tenant's Proportionate Share of Common Area Maintenance and Taxes for the New Premises between November 1, 2009 and December 31, 2009 in the event Landlord fails to deliver the New Premises to Tenant with the Tenant Improvements substantially completed by November 1, 2009 for any reason other than a Tenant Delay; provided, however Tenant shall continue to pay the Monthly Installment of Rent and Tenant's Proportionate Share of Common Area Maintenance and Taxes for the Existing Premises during said period. If, however, Tenant chooses to open for business in the New Premises during said period, then at that time Tenant shall commence to pay the Monthly Installment of Rent and Tenant's Proportionate Share of Common Area Maintenance and Taxes for the New Premises. Notwithstanding anything herein to the contrary, so long as Tenant does not interfere with the completion of the Tenant Improvements and Tenant coordinates its entry into the New Premises with the schedule adopted by Landlord's construction manager for the completion of the Tenant Improvements, Tenant may enter the New Premises, rent-free but otherwise subject to all of the terms and conditions of the Lease and this Amendment (including delivering to Landlord sufficient evidence that Tenant maintains the insurance coverage required of Tenant herein), up to forty-five (45) days prior to the commencement of the Extension Term (the "Move-in Period") for the limited purpose of installing its furnishings, fixtures, equipment, wiring, cables and other personal property into the New Premises. During the Move-in Period and at any other time prior to the commencement of the Extension Term, Landlord shall have no responsibility or liability for loss or damage to trade fixtures or equipment installed or left on the New Premises. By occupying the New Premises as a tenant, or to install trade fixtures or equipment, or to perform finishing work, Tenant shall be conclusively deemed to have accepted the same and to have acknowledged that the New Premises are in the condition required by this Lease, except for any Punch List Items for which Tenant has given Landlord a written list within thirty (30) days of Tenant's first occupancy of the New Premises. Should the commencement date of the Extension Term of this Amendment occur for any reason on a day other than the first day of the calendar month,then in that event solely for the Doe#2989627\3 2 purposes of determining the expiration date of the Extension Term, the Extension Term shall be deemed to have commenced on the first (1st) day of the calendar month immediately following. Upon Tenant's occupancy of the New Premises and within ten (10) days of Landlord's request, Landlord and Tenant shall execute a ratification agreement which shall set forth the final commencement and expiration dates of the Extension Term, shall acknowledge the Annual Rent, the rentable square footage of the New Premises, delivery of the New Premises in the condition required by this Lease and shall include such other matters as Landlord may reasonably request. From and after the Delivery Date, all references in the Lease to "Premises" shall be deemed to mean the New Premises. Furthermore, the term "Premises Identification" as defined on the Lease Reference Page of the Lease shall be amended and replaced with "968 Prairie Center Drive" and the term "Premises Area" as defined on the Lease Reference Page of the Lease shall be amended and replaced with"9,498 square feet". 3. Extension Term. The Term of the Lease is hereby extended for one(1)period of ten(10) years commencing on the Delivery Date and expiring at 5:00 p.m. on October 31, 2019 (the "Extension Term"),unless earlier terminated pursuant to the terms of the Lease. 4. Rent. Commencing on November 1, 2009 and continuing on the first (1st) day of each and every calendar month thereafter for the duration of the Extension Term, Tenant shall pay to Landlord the Monthly Installment of Rent set forth below in accordance with the terms of the Lease: Period Annual Rent per Annual Rent Monthly Installment Square Foot of Rent 11/1/09— 10/31/11 $10.00 $94,980.00 $7,915.00 11/1/11 — 10/31/13 $10.25 $97,354.50 $8,112.88 11/1/13— 10/31/15 $10.50 $99,729.00 $8,310.75 11/1/15— 10/31/17 $10.75 $102,103.50 $8,508.63 11/1/17— 10/31/19 $11.00 $104,478.00 $8,706.50 5. Additional Rent. Tenant's obligation to pay Tenant's Proportionate Share of Common Area Maintenance and Taxes, and all such other additional rental obligations and charges set forth in the Lease shall be and remain in full force and effect during the Extension Term. As of November 1, 2009, Tenant's Proportionate Share shall adjust to 8.27% of the Common Area Maintenance and Taxes that pertain to the Shopping Center. 6. Surrender of Existing Premises. The Term of the Lease, which is scheduled to expire on September 30, 2009, is hereby extended one (1) month so as to now expire on October 31, 2009. During said period, Tenant shall continue to pay the Monthly Installment of Rent and Tenant's Proportionate Share of Common Area Maintenance and Taxes currently due for the Existing Premises. Tenant shall vacate and surrender the Existing Premises to Landlord on that date that is the later of: (i) October 31, 2009 at 5:00 p.m., or (ii) the Delivery Date (the "Surrender Date"). The Existing Premises shall be surrendered to Landlord in the condition required by Article 25 of the Lease the same as if the Lease were being terminated. As of the Surrender Date, Tenant shall and hereby does transfer, convey, quitclaim and assign to Landlord all of its rights and interests in and to the Existing Premises and all improvements located therein; provided the foregoing does not relieve Tenant from its obligations under Article 25 of the Lease. 7. Early Termination Right. Section 1.4 of the Lease is deleted in its entirety and replaced with the following language: In the event that Tenant, by resolution of the Eden Prairie City Council, ceases to operate in the off-sale liquor business ("Termination of Liquor Business"), either Landlord or Tenant may terminate this Lease upon 120 days prior written notice to the other party ("Termination Doe#2989627\3 3 Notice"). The Termination Notice shall set forth the date in which the Lease shall terminate; provided, however such termination shall not become effective prior to the effective date of the Termination of Liquor Business as established by said resolution. In no event shall Tenant be in default of the Lease at the time Tenant gives Landlord its Termination Notice and on the Termination Date. Tenant shall pay to Landlord simultaneously with Tenant's delivery of a Termination Notice to Landlord (or within ten (10) days of Tenant receiving a Termination Notice from Landlord) a termination fee equal to the sum of the unamortized portion of Landlord's Transaction Costs (as defined below) as of the Termination Date, which shall be determined assuming Landlord's Transaction Costs, together with interest at an annual rate of seven percent (7%), are fully amortized in equal monthly amounts beginning on the Delivery Date and continuing through the Extension Term. "Landlord's Transaction Costs" shall mean the total amount incurred by Landlord with respect to this Amendment and the New Premises including leasing commissions, costs to construct the Tenant Improvements, and reasonable legal fees. 8. Modifications to the Shopping Center. Notwithstanding anything in the Lease to the contrary, Landlord reserves the unrestricted right to change the Common Areas of the Shopping Center including, but no limited to, the driveways, entrances, parking areas, sidewalks, and landscaped areas, provided that any such changes will not impair access to the New Premises. Landlord further reserves the unrestricted right to add land to and withdraw land from the Shopping Center which may involve the subdivision of the land that comprises the Shopping Center and the creation of additional lots and/or outlots for development and sale to third parties. Tenant shall release any and all rights it has in and to any portion of the Shopping Center conveyed or transferred to a third party that does not contain the New Premises. Tenant agrees, at the request of Landlord, to execute an amendment to the Lease that reflects the change in the description of the Shopping Center should Landlord exercise the rights reserved herein. Landlord may temporarily close or alter portions of the Common Areas for such periods of time as may be necessary to repair, maintain and alter the Common Areas,provided, however, in no event shall access to the New Premises be materially impaired. 9. Insurance. Section 12 of the Lease is deleted in its entirety and replaced with the following language: Tenant will keep in full force and effect at its own expense during the Extension Term, commercial general liability insurance with respect to the New Premises in which Landlord shall be named as an additional insured, in companies and in form acceptable to Landlord with a minimum combined limit of liability of Two Million Dollars ($2,000,000). This limit shall apply per location. Said insurance shall also provide for contractual liability coverage by endorsement. Tenant shall further provide for business interruption insurance to cover a period of not less than six (6) months. Tenant shall maintain at its own cost and expense, fire and extended coverage, vandalism, malicious mischief and special extended coverage insurance in an amount adequate to cover the cost of replacement of Tenant's Improvements and all alterations, changes, wall coverings, floors, furnishings, decorations, additions, fixtures and improvements in the New Premises in the event of a loss, in companies and in form acceptable to Landlord. Tenant shall keep in full force and effect, at its sole cost and expense, workers' compensation insurance in accordance with the laws of the state where the New Premises are located. Tenant shall also keep in full force and effect, at its sole cost and expense, employers liability insurance in the amount of One Million Dollars ($1,000,000) bodily injury per accident and One Million Dollars ($1,000,000)bodily injury by disease both as a policy limit and per employee. Tenant shall also comply with all governmental regulations regarding dispensing or selling of alcohol. Notwithstanding the foregoing, Tenant shall not sell, serve or dispense any alcohol for consumption in the New Premises without the prior consent of Landlord, which consent Landlord may grant or withhold in Landlord's sole discretion; provided, however Tenant may hold wine tasting events and offer wine sampling in the New Premises as long as Tenant complies with all Doe#2989627\3 4 governmental regulations and laws applicable to such dispensing or serving of wine and maintains "dram shop insurance" or similar insurance coverage as is commercially reasonable in connection with Tenant's wine tasting events and wine sampling. 10. Miscellaneous Modifications. A. Sections 1.5,2, 36 and 37 of the Lease are hereby deleted in their entirety. B. The first sentence in Section 1.6 is amended to delete "Sixty (60)" and replace with"one hundred eighty(180)". 11. Ratification. Except as amended by this Amendment, all of the terms, covenants, and conditions of the Lease shall remain in full force and effect and are hereby ratified and confirmed. In the event of a conflict between the terms of the Lease and the terms of this Amendment, the terms of this Amendment shall control. 12. Submission of Amendment. Submission of this unexecuted Amendment by Landlord or Landlord's agent to Tenant for examination and/or execution will not bind Landlord unless and until this Amendment is fully signed and delivered by Landlord and Tenant; provided, however, the execution and delivery by Tenant of this Amendment to Landlord shall constitute an irrevocable offer by Tenant of the terms and conditions herein contained, which offer may not be revoked for thirty (30) days after such delivery. 13. Counterparts. This Amendment may be executed in one or more counterparts, each evidencing,however,the single agreement between the parties. 14. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of Landlord,Tenant, and their respective successors and assigns. IN WITNESS WHEREOF, this Amendment is executed as of the day and year set forth in the first paragraph of this Amendment. LANDLORD: PRAIRIEVIEW RETAIL LLC, a Delaware limited liability company By: United Properties Investment LLC, a Minnesota limited liability company Its: Manager By: Name: Title: By: Name: Title: Doe#2989627\3 5 TENANT: CITY OF EDEN PRAIRIE By: Name: Title: By: Name: Title: Doe#2989627\3 6 Exhibit A Prairieview Center Eden Prairie, MN ..._______________-r-- N l!j HHHIH L I Premises CIII 1111111111111111111 ID B3 - Al 83j// cyE Cl 0 1 1 -1_I I I I Il �iilr I11 ' Li_ c� c 0 L f / asc\ - Ca I. ///////// — Ccs 0 — Cs al 11,11�111 T. - cya I.ON0 IIIII/I//P — cc 3Lci. . -J \\ Di T. -\\,..?._n ■ c _ lib lir.. Ilk.. R } LI -- plaza Dille Highway 5 EXHIBIT B 0 poWiliViiiipIIiiii e.i..gaR.i1F4 dal p WvIsta t ilmoi 4 ivii !,3 5A=payei 1§ "11$ % )2 1! 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RE: LIQUOR STORE 3 RELOCATION In response to your request, we conducted an evaluation of the proposal to relocate Store 3 from its present location at Prairie View Center to a vacant space adjacent to Rainbow. Summary of Findings The results of our evaluation are summarized below. ® The proposed location of Store 3 is superior to the current location. The proposed location next to Rainbow is a natural adjacency for a liquor store. The proposed store will have better visibility, better access, and more convenient parking. The larger store will permit a larger display area similar to Stores 1 and 2. ® Estimated selling area at Store 3 is less than Stores 1 and 2, as well as many of the area's competitive stores. Selling area at the five largest competitors ranges from 4,100 to 9,000 square feet. ® Due to its small size, Store 3 has 780 lineal feet of wine display shelving compared to 1,325 feet at Store 2 and 1,702 feet at Store 1. ® Store 3's trade area has more households than Store 1, but has lower sales and market share. ® Store 3 draws a larger proportion of its sales from nearby employees than Stores 1 and 2. • Liquor sales in 2008 at Stores 1 and 3 are comparable at $834,091 and $883,646, respectively. ® Beer sales at Stores 1 and 3 are comparable at$921,490 and $995,244, respectively. ® Wine sales at Store 1 were $433,000 higher than Store 3, and wine sales at Store 2 were over$1,000,000 higher. Stores 1 and 2 have larger wine displays. • With a larger wine display, Store 3 will sell more wine and liquor, and possibly more beer. • The proposed annual rent at Store 3 is less than the annual rent at Store 1. 1 ® Common area maintenance costs at Store 3 will be slightly less than Store 1. ® Property taxes at Store 3 will be higher than Store 1. ® Total occupancy costs for Store 3 (with 9,498 square feet) will be less than Store 1 (with 8,002 square feet). ® The space size for the proposed Store 3 is larger than needed for a liquor store. The space that is not needed for selling area or storage should be walled off and not used. Increasing wine sales at Store 3 by $400,000 to $500,000 would result in a 14 to 18 percent increase in sales. This should be achievable based on trade area households and household income. Store Locations The existing Store 3 (with 4,248 square feet) is located on the east side of Prairie View Center facing west. This store suffers from poor circulation in the shopping center parking lot. Access from the Rainbow parking lot to the parking area in front of Store 3 is confusing and poorly planned. This, combined with the store's smaller size, could be limiting its sales potential. Store 3's location does not optimize cross shopping potential with Rainbow customers. The proposed location for Store 3 in the former Snyder Drug store has four advantages over the current store. The larger store will permit the display of a larger selection of spirits and wine. With Rainbow as its immediate neighbor to the west, this store will facilitate cross-shopping between groceries, wine, spirits and beer, which is a natural adjacency. The proposed store has much better visibility on the shopping center site, and has its accessibility is much improved. Store Size In 2008, Eden Prairie's three liquor stores ranged in size from 4,248 square feet to 7,688 square feet, as shown in Table 1. Selling space, estimated by McComb Group in 2005, ranged from 2,500 square feet to 4,400 square feet. Store 1 now has 8,002 square feet and the proposed space for Store 3 is 9,498 square feet. Table 1 EDEN PRAIRIE LIQUOR STORES Gross Estimated Wine Leasable Selling Shelf Store Area Area Coolers Space* Store 1-Old 5,250 3,500 N/A N/A Store 1-New 8,002 N/A 24 1,702 Store 2 7,688 4,400 24 1,325 Store 3-Existing 4,248 2,500 24 780 Store 3-Proposed 9,498 N/A N/A N/A Source: City of Eden Prairie and McComb Group,Ltd. 2 The median store size is 3,074 square feet and the store size at the Top 10 Percent is 8,284 square feet. Eden Prairie liquor stores are larger than average, but there are fewer stores than if the city did not have municipal liquor stores. In evaluating liquor stores, McComb Group counts the number of coolers and lineal feet of wine display excluding end caps and stacked cases. Store 1 has the largest lineal footage of wine shelf space at over 1,700 square feet and Store 3 has the smallest at 780 lineal feet. Each store has 24 coolers. Competitive Liquor Stores Competitive liquor stores identified in our 2005 report are shown in Table 2 and ranged in size from 1,300 square feet to 9,000 square feet. In that group, there were five stores with more than 4,000 square feet of selling area. With the new store, Eden Prairie will have three stores with more than 4,000 square feet of selling area. Table 2 COMPARISON OF EDEN PRAIRIE AND COMPETITIVE LIQUOR STORES Estimated Selling Area Store (Sq.Ft.) Eden Prairie Stores Store 1 3,500 Store 2 4,400 Store 3 2,500 Competitive Stores MGM-Chanhassen 4,700 Byerly's-Chanhassen 2,100 Cheers-Chanhassen 4,200 Cheers-Bloomington 4,100 Liquor Time-Bloomington 1,500 Haskell's-Bloomington 4,700 Sundial-Minnetonka 2,000 Glen Lake Liquor-Minnetonka 1,300 Barrel Liquor-Minnetonka 2,640 MGM-Minnetonka 9,000 Shorewood Liquor-Shorewood 2,500 Other Stores Haskell's-Excelsior 2,400 Excelsior Vintage Wine&Liquor 1,000 Shorewood Liquor#2 2,600 Aurora Wine&Spirits 4,400 Pass By Liquors 950 High Five Liquors 1,800 Source: McComb Group,Ltd.(2005 Report) Recently, McComb Group completed a liquor store study in the east metro area and surveyed stores that had strong selections of wine. Seven stores located in Stillwater, Oak Park Heights, Oakdale, and Woodbury were surveyed, as shown in Table 3. All of these stores, except 3 Haskell's in Woodbury, had more than 4,000 square feet of selling area. The number of coolers ranged from 18 to 36, and wine lineal feet of shelf space ranged from 848 to over 1,300 feet at the two Haskell's locations. Five of the seven stores had in excess of 1,000 lineal feet of wine display. These stores serve trade areas with demographic characteristics and household incomes that are similar to Eden Prairie. This analysis indicates that Stores 1 and 2 have very competitive wine offerings for stores with similar trade areas. Table 3 EDEN PRAIRIE AND OTHER LIQUOR STORES Estimated Wine Selling Area Shelf Store (Sq.Ft). Coolers Space* Eden Prairie Stores Store 1-New Store N/A 24 1,702 Store 2 4,400 24 1,325 Store 3 2,500 24 780 Competitive Stores MGM-Chanhassen 4,700 Byerly's-Chanhassen 2,100 Cheers-Chanhassen 4,200 Cheers-Bloomington 4,100 Liquor Time-Bloomington 1,500 Haskell's-Bloomington 4,700 Sundial-Minnetonka 2,000 Glen Lake Liquor-Minnetonka 1,300 Barrel Liquor-Minnetonka 2,640 MGM-Minnetonka 9,000 Shorewood Liquor-Shorewood 2,500 Other Stores Haskell's-Excelsior 2,400 Excelsior Vintage Wine&Liquor 1,000 Shorewood Liquor#2 2,600 Aurora Wine&Spirits 4,400 Pass By Liquors 950 High Five Liquors 1,800 East Metro Cork&Barrel 4,818 18 1,026 MGM Liquor Warehouse 5,192 23 848 Haskell's 6,900 23 1,328 Oak Wine&Spirits 4,560 25 1,056 MGM Liquor 4,768 23 1,184 Haskell's 3,480 18 1,334 Top Ten 4,850 36 992 * Linear Feet. Source: McComb Group,Ltd. 4 Trade Area Demographics Demographic characteristics in the 2005 report are now four years old. That report contained demographic characteristics for 2000, 2004 and 2009. As a result, new demographics were compiled for 2000, 2008 and 2013. Trade area characteristics in the most recent reports are similar to the older reports. The current household estimates for 2008 are slightly below the previous estimates for 2009. This is due to the decline in housing construction that occurred after 2005. The relationship of trade area households between the three stores remained similar, as shown in Table 4. Store 2 has the largest number of households in 2008 and Store 1 has the smallest number of households. Store 3's trade area has 13 percent more households than Store 1. Table 4 EDEN PRAIRIE LIQUOR STORE TRADE AREAS POPULATION AND HOUSEHOLDS 1990 AND 2000 CENSUS;2008 AND 2013 ESTIMATED Store 1 Store 2 Store 3 Population 1990 35,287 72,880 42,148 2000 50,526 87,295 56,074 2008E 56,056 92,311 62,607 2013E 58,203 94,246 64,990 Annual Growth Rate 1990-2000 3.65 % 1.82 % 2.90 % 2000-2008E 1.31 0.70 1.39 2008E-2013E 0.75 0.42 0.75 Households 1990 12,530 27,864 15,246 2000 18,403 34,711 20,732 2008E 20,689 36,684 23,447 2013E 21,590 37,505 24,440 Annual Growth Rate 1990-2000 3.92 % 2.22 % 3.12 % 2000-2008E 1.47 0.69 1.55 2008E-2013E 0.86 0.44 0.83 E: Estimated. Source: U.S.Census,Scan/US,Inc.and McComb Group,Ltd. Average household income in 2008 ranged from $120,688 for Store 1 to $123,407 for Store 2. Store 3 was just slightly below Store 2 with an average household income of$123,047. These trade areas have very high household income when compared to average household income of $82,167 in the Minneapolis-St.Paul MSA. Customer Survey Results In the 2005 study, customers of each of the Eden Prairie liquor stores were surveyed and asked, "Why did you stop here today?" "Close to Home" responses for Stores 2 and 3 were similar at about 60 percent of the respondents, as shown in Table 5. Store 1 had a higher"close to home" 5 response of 74 percent. Twenty-five percent of Store 3 customers responded "close to work" as a reason for stopping compared to 20 percent at Store 2 and 10 percent at Store 1. Thirty-five percent of the respondents at Store 3 considered themselves "regular customers" compared to 36 percent at Store 1 and 27.5 percent at Store 2. Responses to the other questions were similar for all three stores. Survey results indicated that Store 3 has a higher proportion of customers that believe that the store is close to work. Table 5 EDEN PRAIRIE LIQUOR STORES "WHY DID YOU STOP HERE TODAY?" Response Store 1 Store 2 Store 3 Close to Home 73.8 % 59.5 % 60.9 % Close to Work 10.3 20.5 25.1 Driving By 13.7 12.3 12.9 Running Errands 22.5 22.2 21.3 Regular Customer 36.1 27.5 34.5 Other 5.3 6.6 6.2 Total 100.0 % 100.0 % 100.0 % Source: McComb Group,Ltd.,January 2005. Retail Sales Retail sales for 2006, 2007 and 2008 for each of the liquor stores are contained in Table 6. The proportion of liquor, wine and beer sold each year at Store 3 is relatively consistent at 32 percent for spirits, 30 percent for wine, and 36 percent for beer. Store 1 has the highest proportion of wine sales at 41 percent of sales; and Store 2 wine represents 36.4 percent of sales and has been increasing. Wine sales per square foot at Stores 1 and 2 are $241 and $244 per square foot, respectively, compared to $196 per square foot at Store 3. Even with smaller square footage, the wine sales per square foot are much lower at Store 3. Store 2 sells $1.0 million more wine per year and Store 1 sells over $430,000 more wine than Store 3. Sales per square foot in this table are based on store size that existed in 2008. Liquor Store Market Share In the 2005 report, actual retail sales for 2002, 2003 and 2004 were analyzed to determine market share and the proportion of sales that were derived from each trade area. Table 7 (from the 2005 report) contains projected baseline sales for through 2010. Retail sales for each of the stores have exceeded baseline projections from 2005 through 2008. Store 3 has a larger number of trade area households than Store 1 and had a market share of slightly over 12 percent compared with a market share of over 15 percent at Store 1. While Store 3 had more sales than Store 1 in 2002 and 2003, Store 1 was projected out perform Store 3 in the future. Store 1 sales have exceeded the projection and have experienced increasing market share. Store 3 was projected to experience slightly declining market share, which appears to have occurred. Store 3 derives a smaller proportion of its sales from the trade area, due to its higher proportion of inflow shoppers represented by nearby employees that shop at that store. 6 Table 6 EDEN PRAIRIE LIQUOR STORES SALES;2006 TO 2008 Store 2006 Percent 2007 Percent 2008 Percent Store 1 Liquor $ 746,312 26.5 % $ 793,658 26.9 % $ 834,091 27.1 % Domestic Wine 766,479 27.2 799,488 27.1 820,691 26.6 Imported Wine 403,679 14.3 414,217 14.1 443,021 14.4 Subtotal $ 1,170,157 41.6 % $ 1,213,705 41.2 % $ 1,263,712 41.0 % Beer 834,313 29.6 874,665 29.7 921,490 29.9 Other 64,203 2.3 63,498 2.2 61,726 2.0 Total $ 2,814,985 100.0 % $ 2,945,526 100.0 % $ 3,081,020 100.0 % Store 2 Liquor $ 1,483,673 31.1 % $ 1,502,722 31.1 % $ 1,590,216 30.9 % Domestic Wine 1,105,976 23.2 1,074,166 22.3 1,157,078 22.5 Imported Subtotal 1,657,124 34.7 % 1,692,890 35.11 % 1,872,326 36.4 % Beer 1,523,936 32.0 1,518,343 31.5 1,571,827 30.5 • Other 105,008 2.2 112,661 2.3 116,296 2.3 Total $ 4,769,741 100.0 % $ 4,826,616 100.0 % $ 5,150,665 100.0 % Store 3 Liquor $ 831,375 32.3 % $ 876,971 32.4 % $ 883,646 32.1 % Domestic Wine 514,835 20.0 540,965 20.0 548,835 19.9 Imported Wine 256,886 10.0 266,315 9.8 281,871 10.2 Subtotal $ 771,720 30.0 % $ 807,280 29.8 % $ 830,706 30.1 % Beer 927,067 36.0 976,746 36.1 995,244 36.1 Other 43,406 1.7 46,968 1.7 46,000 1.7 Total $ 2,573,567 100.0 % $ 2,707,964 100.0 % $ 2,755,597 100.0 % SALES PER SQUARE FOOT Store 1 Liquor $ 142.15 $ 151.17 $ 158.87 Domestic Wine 146.00 152.28 156.32 Imported Wine 76.89 78.90 84.38 Subtotal $ 222.89 $ 231.18 $ 240.71 Beer 158.92 166.60 175.52 Other 12.23 12.09 11.76 Total $ 536.19 $ 561.05 $ 586.86 Store 2 Liquor $ 192.99 $ 195.46 $ 206.84 Domestic Wine 143.86 139.72 150.50 Imported Wine 71.69 80.48 93.03 Subtotal $ 215.55 $ 220.20 $ 243.54 Beer 198.22 197.50 204.45 Other 13.66 14.65 15.13 Total $ 620.41 $ 627.81 $ 669.96 Store 3 Liquor $ 195.71 $ 206.44 $ 208.01 Domestic Wine 121.19 127.35 129.20 Imported Wine 60.47 62.69 66.35 Subtotal $ 181.67 $ 190.04 $ 195.55 Beer 218.24 229.93 234.29 Other 10.22 11.06 10.83 Total $ 605.83 $ 637.47 $ 648.68 STORE SIZE Store 1 5,250 Store 2 7,688 Store 3 4,248 Source: City of Eden Prairie. 7 Table 7 EDEN PRAIRIE LIQUOR STORES RETAIL SALES: ACTUAL 2002 TO 2004 AND ESTIMATED 2005 TO 2010 (In Thousands of Dollars) Actual Estimated 2002 2003 2004 2005 2006 2007 2008 2009 2010 Store 1 Households 19,010 19,449 19,898 20,308 20,726 21,153 21,589 22,034 22,488 Household PP $ 547.74 $ 558.02 $ 576.98 $ 596.59 $ 616.86 $ 637.82 $ 659.50 $ 681.91 $ 705.08 Purchasing Power $ 10,412.5 $ 10,852.9 $ 11,480.7 $ 12,115.5 $ 12,785.0 $ 13,491.8 $ 14,237.9 $15,025.2 $ 15,855.8 Market Share 15.18 % 15.26 % 15.91 % 16.15 % 16.35 % 16.40 % 16.50 % 16.55 % 16.60 % Trade Area Sales $ 1,580.6 $ 1,656.2 $ 1,826.6 $ 1,956.7 $ 2,090.4 $ 2,212.7 $ 2,349.3 $ 2,486.7 $ 2,632.1 Trade Area Percent 80.0 % 80.0 % 80.0 % 80.0 % 80.0 % 80.0 % 80.0 % 80.0 %0 80.0 % In-Flow Sales $ 395.2 $ 414.0 $ 456.6 $ 489.2 $ 522.6 $ 553.2 $ 587.3 $ 621.7 $ 658.0 Total Sales $ 1,975.8 $ 2,070.2 $ 2,283.2 $ 2,445.8 $ 2,612.9 $ 2,765.8 $ 2,936.6 $ 3,108.3 $ 3,290.1 Store 2 Households 36,152 36,886 37,628 38,256 38,895 39,545 40,205 40,871 41,553 Household PP $ 547.74 $ 558.02 $ 576.98 $ 596.59 $ 616.86 $ 637.82 $ 659.50 $ 681.91 $ 705.08 Purchasing Power $ 19,801.9 $20,583.1 $21,710.6 $22,823.1 $23,992.8 $25,222.6 $26,515.2 $27,870.3 $29,298.2 Market Share 13.22 % 12.60 % 12.30 % 12.05 % 11.85 % 11.70 % 11.55 % 11.40 % 11.30 % Trade Area Sales $ 2,617.8 $ 2,593.5 $ 2,670.4 $ 2,750.2 $ 2,843.1 $ 2,951.0 $ 3,062.5 $ 3,177.2 $ 3,310.7 Trade Area Percent 65.0 % 65.0 % 65.0 % 65.0 % 65.0 % 65.0 % 65.0 % 65.0 % 65.0 % In-Flow Sales $ 1,409.6 $ 1,396.5 $ 1,437.9 $ 1,480.9 $ 1,530.9 $ 1,589.0 $ 1,649.0 $ 1,710.8 $ 1,782.7 Total Sales $ 4,027.4 $ 3,990.0 $ 4,108.3 $ 4,231.1 $ 4,374.1 $ 4,540.1 $ 4,711.5 $ 4,888.0 $ 5,093.4 Store 3 Households 21,772 22,221 22,676 23,109 23,550 24,000 24,458 24,929 25,405 Household PP $ 547.74 $ 558.02 $ 576.98 $ 596.59 $ 616.86 $ 637.82 $ 659.50 $ 681.91 $ 705.08 Purchasing Power $ 11,925.4 $ 12,399.8 $ 13,083.6 $ 13,786.6 $ 14,527.1 $ 15,307.7 $ 16,130.1 $ 16,999.3 $ 17,912.6 Market Share 12.77 % 12.39 % 12.41 % 12.40 % 12.39 % 12.38 % 12.37 % 12.36 % 12.35 % Trade Area Sales $ 1,522.9 $ 1,536.3 $ 1,623.7 $ 1,709.5 $ 1,799.9 $ 1,895.1 $ 1,995.3 $ 2,101.1 $ 2,212.2 Trade Area Percent 72.5 % 72.5 % 72.5 % 72.5 % 72.5 % 72.5 % 72.5 % 72.5 % 72.5 % In-Flow Sales $ 577.6 $ 582.7 $ 615.9 $ 648.4 $ 682.7 $ 718.8 $ 756.8 $ 797.0 $ 839.1 Total Sales $ 2,100.5 $ 2,119.1 $ 2,239.6 $ 2,358.0 $ 2,482.6 $ 2,613.9 $ 2,752.1 $ 2,898.1 $ 3,051.3 Source: McComb Group,Ltd.(2005 report). Occupancy Cost Retail sales for 2008 are compared with projected occupancy costs for 2009 for each liquor store in Table 8. Occupancy expenses consist of rent, common area maintenance (CAM), and property taxes. Retail sales and occupancy costs were divided by store size using the current size of 8,002 square feet for Store 1 and 9,498 square feet for the proposed Store 3. Retail sales ranged from $290 per square foot at Store 3 to $670 per square foot at Store 2. Based on the larger store size, 2008 sales at Store 1 were about $385 per square foot. Rent per square foot for the stores ranges from $10 per square foot proposed for Store 3 to $14.07 per square foot for Store 1, which also has the highest armual rent of$112,560. CAM charges for Stores 1 and 3 at '$31,723 and $31,221, respectively, are similar. Property taxes would be slightly higher at Store 3 at about$40,000 per year compared to $36,500 per year at Store 1. There are no property taxes for Store 2 because it's owned by the City. Even though Store 3 would be the largest store, armual occupancy costs are lower than Store 1 in dollar amount and per square foot. i Table 8 EDEN PRAIRIE LIQUOR STORES OCCUPANCY EXPENSE 2006 Dollars&Cents Store 1 Store 2 Store 3 Top 10 Dollars Per Sq.Ft. Dollars Per Sq.Ft. Dollars Per Sq.Ft. Median Percent Size(Sq.Ft.) 8,002 7,688 9,498 3,074 8,284 Sales(2008) $3,081,020 $385.03 $5,150,665 $669.96 $2,755,597 $290.12 $396.27 $686.66 Expenses 2009 Rent $ 112,560 $ 14.07 $ 96,121 $ 12.50 $ 94,980 $ 10.00 $ 16.11 $ 30.02 CAM 31,723 3.96 40,000 5.20 31,221 3.29 2.46 4.24 Property Taxes 36,485 4.56 - - 39,969 4.21 1.66 3.57 Total $ 180,768 $ 22.59 $ 136,121 $ 17.71 $ 166,170 $ 17.50 $ 19.31 * $ 35.87 * Percent of Sales Expenses 2009 Rent 3.65 % 1.87 % 3.45 % 4.07 % 4.37 % CAM 1.03 0.78 1.13 0.62 0.62 Property Taxes 1.18 - 1.45 0.42 0.52 Total 5.87 % 2.64 % 6.03 % 4.87 * 5.22 * *Median and Top 10 Percent columns do not add. Source: City of Eden Prairie and McComb Group,Ltd. Sales and occupancy costs for the Eden Prairie stores are compared with liquor stores in community shopping centers published in Dollars & Cents of Shopping Centers, 2008,published by the Urban Land Institute. This publication contains operating statistics for 2006, the latest available. Eden Prairie liquor stores are much larger than the median store size and are closer in size to the larger stores represented by stores in the Top 10 Percent category. Store 2 is achievingTop sales similar to the 10 Percent category and Store 1 is similar to the median sales 10 Percent category are unlikelyto remember: stores in the Top per square foot. One point to g rY also have sales per square foot in the Top 10 Percent category. Rent per square foot at each of the Eden Prairie liquor stores is below the median rent of$16.11 for liquor stores reported in Dollars & Cents of Shopping Centers. CAM costs at Store 1 ($3.96 per square foot) are higher than at the proposed Store 3 ($3.29 per square foot). This compares to $2.46 per square foot median from Dollars & Cents of Shopping Centers to $4.24 for stores at the Top 10 Percent. Most of the stores reporting CAM costs in Dollars & Cents of Shopping 9 Centers are not located in areas where there is snowfall, which increases CAM costs. Property taxes per square foot at Store 1 and Store 3 exceed property taxes reported by Dollars & Cents of Shopping Centers. This is typical for Minnesota with its higher level of property taxation on commercial properties. Total occupancy costs are lowest for Store 2 because there are no property taxes. Store 3 2009 occupancy costs for the larger store would be $166,170 or $17.50 per square foot compared to $180,768 or$22.59 per square foot at Store 1. Occupancy costs as a percent of sales are 5.87 percent at Store 1, 2.64 percent at Store 2, and an estimated 6.03 percent at Store 3. 10 City of Eden Prairie Prairie View Liquor Store Lease Ten Year Term Five Year Term Expires 09/30/2009 Ten Year Term Proposed Lease Proposed Lease Current Lease and Space Snyders Space Current Location Current Location Square Feet 4,248 9,498 4,248 4,248 Rent 70,092 94,980 91,332 91,332 CAM 13,956 31,221 13,956 13,956 Property Taxes 17,884 39,969 17,884 17,884 Total 106,180 175,668 127,420 127,420 Rent per square foot 16.50 10.00 21.50 21.50 Total Cost over Ten Years 1,061,800 1,832,294 1,398,287 Total Cost over Five Years 663,599 Tenant Improvement Funds N/A 300,000 42,480 21,240 City Contribution excluding cooler 390,000 ** 257,520 *** 278,760 **Estimate based on build out of 9,498 square feet, actual build out will be less ***Estimate based on same square footage cost as Snyders space, actual amount may be different Sales increase needed to cover increased costs 10% 3% CITY COUNCIL AGENDA DATE: SECTION: Reports of the City Manager August 18, 2009 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: XIV.B.2. Sue Kotchevar, Office of the Approve Agreement with Scott W. City Manager Baker Associates, Inc Requested Action Move to: Approve Agreement with Scott W. Baker Associates, Inc. Synopsis As part of the expansion and relocation of Prairie View liquor operations, the Landlord is providing improvements to the relocation premises in"turnkey" condition which will cost approximately$300,000. The City is required to pay for certain items including the following following: • Store design elements including signage, wall coverings and murals, etc. • Visual display surfaces including shelving, display racks, etc. • Cash wrap • Wine counter • Exterior signage. • Mercantile and service equipment. • Refrigerated display equipment. • Office equipment. • Furnishings. • Communications equipment, wiring and devices. • Electronic safety and security equipment, wiring, and devices. Scott W. Baker Associates, Inc. will coordinate the purchase and installation of these items with the City and the Landlords contractor to ensure an efficient construction process. Attachments Agreement BAKER ASSOCDATES Standard Agreement for Professional Services This Agreement is made on the;7th day of July, 2009,between the City of Eden Prairie,Minnesota (hereinafter"City"),whose business address is 8080 Mitchell Road,Eden Prairie,MN 55344,and Scott W. Baker Associates,Inc.a Minnesota(SCorp (hereinafter"Consultant")whose business address is 1903 East Wayzata Blvd.Wayzata,MN 55391. Preliminary Statement The City has adopted a policy regarding the selection and hiring of consultants to provide a variety of profes- sional services for City projects. That policy requires that persons,firms or corporations providing such serv- ices enter into written agreements with the City. The purpose of this Agreement is to set forth the terms and conditions for the provision of professional services by Consultant for Prairie View Eden Prairie Liquor Store hereinafter referred to as the"Work". The City and Consultant agree as follows: 1. Scope of Work/Proposal. The Consultant agrees to provide the professional services shown in Exhibit "A"in connection with the Work. The terms of this standard agreement shall take precedence over any provisions of the Consultants proposal and/or general conditions. r- aoi° 2. Term. The term of this Agreement shall be from July?, 2009 through Jtln'„`1 3/, , the date of signature by the parties notwithstanding. This Agreement may be extended upon the written mutual consent of the parties for such additional period as they deem appropriate, and upon the terms and conditions as herein stated. 3. Compensation for Services. City agrees to pay the Consultant on an hourly or fee basis plus expenses in a total amount not to exceed$ $89,800 for the services as described in Exhibit Pr A. Any changes in the scope of the work which may result in an increase to the compensation due the Consultant shall require prior written approval by an authorized representative of the City or by the City Council. The City will not pay additional compensation for services that do not have prior written authorization. B. Special Consultants may be utilized by the Consultant when required by the complex or spe- cialized nature of the Project and when authorized in writing by the City. C. If Consultant is delayed in performance due to any cause beyond its reasonable control, in- cluding but not limited to strikes,riots,fires,acts of God,governmental actions,actions of a third party, or actions or inactions of City, the time for performance shall be extended by a period of time lost by reason of the delay. Consultant will be entitled to payment for its rea- sonable additional charges,if any,due to the delay. 1903 E Wayzata Blvd ( Wayzata, MN 55391 I Tel 952,473,4882 I Fax 952.473,5006 ( www.bakerassociates,com BAKER ASSOCATES 4. City Information. The City agrees to provide the Consultant with the complete information concern- ing the Scope of the Work and to perform the following services: A. Access to the Area. Depending on the nature of the Work, Consultant may from time to time require access to public and private lands or property. As may be necessary, the City shall obtain access to and make all provisions for the Consultant to enter upon public and private lands or property as required for the Consultant to perform such services necessary to complete the Work. B. Consideration of the Consultant's Work. The City shall give thorough consideration to all reports, sketches, estimates, drawings, and other documents presented by the Consultant, and shall inform the Consultant of all decisions required of City within a reasonable time so as not to delay the work of the Consultant. C. Standards. The City shall furnish the Consultant with a copy of any standard or criteria,in- cluding but not limited to, design and construction standards that may be required in the preparation of the Work for the Project. D. Owner's Representative. A person shall be appointed to act as the City's representative with respect to the work to be performed under this Agreement. He or she shall have complete authority to transmit instructions, receive information,interpret,and define the City's policy and decisions with respect to the services provided or materials, equipment, elements and systems pertinent to the work covered by this Agreement. 5. Method of Payment. The Consultant shall submit to the City, on a monthly basis, an itemized invoice for professional services performed under this Agreement. Invoices submitted shall be paid in the same manner as other claims made to the City for: A. Progress Payment. For work reimbursed on an hourly basis,the Consultant shall indicate for each employee, his or her name,job title,the number of hours worked, rate of pay for each employee, a computation of amounts due for each employee, and the total amount due for each project task. Consultant shall verify all statements submitted for payment in compli- ance with Minnesota Statutes Sections 471.38 and 471.391. For reimbursable expenses, if provided for in Exhibit A, the Consultant shall provide an itemized listing and such docu- mentation as reasonably required by the City. Each invoice shall contain the City's project number and a progress summary showing the original (or amended) amount of the contract, current billing,past payments and unexpended balance of the contract. B. Suspended Work. If any work performed by the Consultant is suspended in whole or in part by the City, the Consultant shall be paid for any services performed and for any com- mitments or obligations incurred prior to receipt of written notice from the City of such suspension,all as shown on Exhibit A. 1903 E Wayzata Blvd ( Wayzata, MN 55391 ( Tel 952.473,4882 I Fax 952,473.500E j www.bakerassociat:es.com BAKER ASSOCHATES C. Payments for Special Consultants. The Consultant shall be reimbursed for the work of spe- cial consultants, as described in Section 3B, and for other items when authorized in writing by the City. D. Claims. To receive any payment on this Agreement,the invoice or bill must include the following signed and dated statement: "I declare under penalty of perjury that this ac- count,claim,or demand is just and correct and that no part of it has been paid." 6. Project Manager and Staffing. The Consultant has designated Wendy Satterlee and Kayla Kuvaas to serve on the Project. They shall be assisted by other staff members as necessary to facilitate the completion of the Work in accordance with the terms established herein. Consultant may not re- move or replace these designated staff from the Project without the approval of the City. 7. Standard of Care. All Work performed pursuant to this Agreement shall be in accordance with the standard of care in Hennepin County,Minnesota for professional services of the like kind. 8. Audit Disclosure. Any reports,information, data, etc. given to, or prepared or assembled by the Con- sultant under this Agreement which the City requests to be kept confidential, shall not be made avail- able to any individual or organization except in a need to know basis without the City's prior written approval.The books,records,documents and accounting procedures and practices of the Consultant or other parties relevant to this Agreement are subject to examination by the City and either the Leg- islative Auditor or the State Auditor for a period of six (6Two (2)years after the effective date of this Contract. The Consultant shall at all times abide by Minn. Stat. 13.01 et seq., the Minnesota Gov- ernment Data Practices Act,to the extent the Act is applicable to data and documents in the posses- sion of the Consultant. 9. Termination. This Agreement may be terminated by either party by seven (7) days written notice de- livered to the other party at the address written above. Upon termination under this provision, if there is no fault of the Consultant, the Consultant shall be paid for services rendered and reimburs- able expenses until the effective date of termination. If however,the City terminates the Agreement because the Consultant has failed to perform in accordance with this Agreement,no further payment shall be made to the Consultant, except for services rendered prior to such notice, and the City may retain another consultant to undertake or complete the work identified in Paragraph 1. 10. Subcontractor. The Consultant shall not enter into subcontracts for services provided under this Agreement except as noted in the Scope of Work, without the express written consent of the City. The Consultant shall pay any subcontractor involved in the performance of this Agreement within the ten(10) days of the Consultant's receipt of payment by the City for undisputed services provided by the subcontractor. If the Consultant fails within that time to pay the subcontractor any undis- puted amount for which the Consultant has received payment by the City, the Consultant shall pay interest to the subcontractor on the unpaid amount at the rate of 1.5 percent per month or any part of a month. The minimum monthly interest penalty payment for an unpaid balance of$100 or more is $10. For an unpaid balance of less than $100, the Consultant shall pay the actual interest penalty due to the subcontractor. A subcontractor who prevails in a civil action to collect interest penalties from the Consultant shall be awarded its costs and disbursements,including attorney's fees,incurred in bringing the action. 1903 E Wayzata Blvd Wayzata, MN 55391 I Tel 952.473.4882 J Fax 952.473.5006 www.bakerassociates.com BAKER ASSOCBATES 11. Independent Consultant. At all times and for all purposes herein,the Consultant is an independent con- tractor and not an employee of the City. No statement herein shall be construed so as to find the Consultant an employee of the City. 12. Non-Discrimination. During the performance of this Agreement,the Consultant shall not discriminate against any employee or applicants for employment because of race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, disability, sexual orientation or age. The Consultant shall post in places available to employees and applicants for employment, notices setting forth the provision of this non-discrimination clause and stating that all qualified applicants will receive consideration for employment. The Consultant shall incorporate the foregoing require- ments of this paragraph in all of its subcontracts for program work, and will require all of its sub- contractors for such work to incorporate such requirements in all subcontracts for program work. The Consultant further agrees to comply with all aspects of the Minnesota Human Rights Act,Min- nesota Statutes 363.01, et. seq., Title VI of the Civil Rights Act of 1964, and the Americans with Disabilities Act of 1990. 13. Assignment. Neither party shall assign this Agreement, nor any interest arising herein, without the written consent of the other party. 14. Services Not Provided For. No claim for services furnished by the Consultant not specifically provided for herein shall be honored by the City. 15. Severability. The provisions of this Agreement are severable. If any portion hereof is, for any reason, held by a court of competent jurisdiction to be contrary to law, such decision shall not affect the re- maining provisions of this Agreement. 16. Entire Agreement. The entire agreement of the parties is contained herein. This Agreement super- sedes all oral agreements and negotiations between the parties relating to the subject matter hereof as well as any previous agreements presently in effect between the parties relating to the subject matter hereof. Any alterations,amendments,deletions, or waivers of the provisions of this Agreement shall be valid only when expressed in writing and duly signed by the parties, unless otherwise provided herein. 17. Co»zpliance with Laws and Regulations. In providing services hereunder, the Consultant shall abide by statutes, ordinances, rules and regulations pertaining to the provisions of services to be provided. The Consultant and City, together with their respective agents and employees, agree to abide by the provisions of the Minnesota Data Practices Act, Minnesota Statutes Section 13, as amended, and Minnesota Rules promulgated pursuant to Chapter 13. Any violation of statutes, ordinances, rules and regulations pertaining to the services to be provided shall constitute a material breach of this Agreement and entitle the City to immediately terminate this Agreement. 18. Waiver. Any waiver by either party of a breach of any provisions of this Agreement shall not affect, in any respect,the validity of the remainder of this Agreement. 1903 E Wayzata Blvd ( Wayzata, MN 55391 l Tel 952,473,4882 I Fax 952.473,5006 www.bakerassociates,com BAKER ASSOCOATES 19. Indemn(*ation. Consultant agrees to defend,indemnify and hold the City,its officers, and employees harmless from any liability, claims, damages, costs, judgments, or expenses, including reasonable at- torney's fees, resulting directly or indirectly from a negligent act or omission (including without limi- tation professional errors or omissions) of the Consultant,its agents,employees,or subcontractors in the performance of the services provided by this Agreement and against all losses by reason of the failure of said Consultant fully to perform,in any respect,all obligations under this Agreement. 20. Insurance. A. General Liability. Prior to starting the Work,Consultant shall procure,maintain and pay for such insurance as will protect against claims for bodily injury or death,or for damage to property,including loss of use,which may arise out of operations by Consultant or by any subcontractor or by anyone employed by any of them or by anyone for whose acts any of them may be liable.Such insurance shall include,but not be limited to,minimum coverages and limits of liability specified in this Paragraph,or required by law. The policy(ies) shall name the City as an additional insured for the services provided under this Agreement and shall provide that the Consultant's coverage shall be primary and noncontributory in the event of a loss. B. Consultant shall procure and maintain the following minimum insurance coverages and lim- its of liability on this Project: Worker's Compensation Statutory Limits Employer's Liability $500,000 each accident $500,000 disease policy limit $500,000 disease each employee Comprehensive Liability $1,000,000 property damage per occurrence $2,000,000 general aggregate $2,000,000 Products—Completed Operations Aggregate $100,000 fire legal liability each occurrence $5,000 medical expense Comprehensive Automobile Liability $1,000,000 combined single limit(shall include coverage for all owned,hired and non-owed vehicles. Umbrella or Excess Liability $2,000,000 C. The Comprehensive General/Commercial General Liability policy(ies) shall be equivalent in coverage to ISO form CG 0001,and shall include the following: a. Premises and Operations coverage with no explosions, collapse, or underground damage exclusion (XCU). 1903 E Wayzata Blvd I Wayzata, MN 55391 I Tel 952,473.4882 I Fax 952,473.5006 I www.bakerassociates,com BAKER ASSOCIATES b. Products and Completed Operations Property Damage coverage. Consultant agrees to maintain this coverage for a minimum of two (2) years following completion of its work. c. Personal injury with Employment Exclusion(if any) deleted. d. Broad Form CG0001 0196 Contractual Liability coverage,or its equivalent. e. Broad Form Property Damage coverage, including completed operations, or its equivalent. f. Additional Insured Endorsement(s) on ISO form CG 2010, or its equivalent, nam- ing"the City of Eden Prairie." The additional insured form needs to extend protec- tion for"product and completed operations". g. If the Work to be performed is on an attached community, there shall be no exclu- sion for attached or condominium projects. h. "Stop gap" coverage for work in those states where Workers' Compensation insur- ance is provided through a state fund if Employer's liability coverage is not available. i. Incidental Malpractice and Host Liquor Liability insurance applicable to the Con- sultant's performance under this Agreement. j. Severability of Insureds provision. D. Professional Liability Insurance. The Consultant agrees to provide to the City a certificate evidencing that they have in effect,with an insurance company in good standing and author- ized to do business in Minnesota, a professional liability insurance policy. Said policy shall insure payment of damage for legal liability arising out of the performance of professional services for the City, in the insured's capacity as the Consultant, if such legal liability is caused by an error, omission, or negligent act of the insured or any person or organization for whom the insured is legally liable. Said policy shall provide an aggregate limit of $2,000,000. Said policy shall not name the City as an insured. E. Consultant shall maintain in effect all insurance coverages required under this Paragraph at Consultant's sole expense and with insurance companies licensed to do business in the state in Minnesota and having a current A.M.Best rating of no less than A-,unless specifically accepted by City in writing. In addition to the requirements stated above,the following ap- plies to the insurance policies required under this Paragraph: a. All polices, except the Professional Liability Insurance policy, shall be written on an "occurrence" form ("claims made" and "modified occurrence" forms are not ac- ceptable); 1903 E Wayzata Blvd ( Wayzata, lv1N 55391 I Tel 952,473.4882 I Fax 952.473,5006 www.bakerassociates.com El B A K ER ASSOCBATES b. All polices, except the Professional Liability Insurance policy, shall be apply on a "per project"basis; c. All policies, except the Professional Liability Insurance and Worker's Compensation Policies,shall contain a waiver of subrogation naming"the City of Eden Prairie"; d. All policies, except the Professional Liability Insurance and Worker's Compensation Policies,shall name"the City of Eden Prairie"as an additional insured; e. All policies, except the Professional Liability Insurance and Worker's Compensation Policies, shall insure the defense and indemnity obligations assumed by Consultant under this Agreement;and f. All polices shall contain a provision that coverages afforded there under shall not be canceled or non-renewed or restrictive modifications added,without thirty (30) days prior written notice to the City. A copy of the Consultant's insurance declaration page, Rider and/or Endorsement, as applicable,which evidences the compliance with this Paragraph 20, must be filed with City prior to the start of Consultant's Work. Such documents evidencing Insurance shall be in a form acceptable to City and shall provide satisfactory evidence that Consultant has complied with all insurance requirements. Renewal certificates shall be provided to City prior to the expiration date of any of the required policies. City will riot be obligated, how- ever, to review such declaration page, Rider, Endorsement or certificates or other evidence of insurance, or to advise Consultant of any deficiencies in such documents and receipt thereof shall riot relieve Consultant from,nor be deemed a waiver of, City's right to enforce the terms of Consultant's obligations hereunder. City reserves the right to examine any pol- icy provided for under this paragraph. F. Effect of Consultant's Failure to Provide Insurance. If Consultant fails to provide the specified insurance, then Consultant will defend, indemnify and hold harmless the City, the City's officials,agents and employees from any loss,claim,liability and expense (including rea- sonable attorney's fees and expenses of litigation) to the extent necessary to afford the same protection as would have been provided by the specified insurance. Except to the extent pro- hibited by law,this indemnity applies regardless of any strict liability or negligence attributable to the City (including sole negligence) and regardless of the extent to which the underlying occurrence (i.e., the event giving rise to a claim which would have been covered by the speci- fied insurance)is attributable to the negligent or otherwise wrongful act or omission(including breach of contract) of Consultant, its subcontractors, agents, employees or delegates. Con- sultant agrees that this indemnity shall be construed and applied in favor of indemnification. Consultant also agrees that if applicable law limits or precludes any aspect of this indemnity, then the indemnity will be considered limited only to the extent necessary to comply with that applicable law. The stated indemnity continues until all applicable statutes of limitation have run. If a claim arises within the scope of the stated indemnity,the City may require Consultant to: 1903 E Wayzata Blvd I Wayzata, MN 55391 I Tel 952.473.4882 I Fax 952.473.5006 I svww,bakerassociates.com BAKER ASSOCIATES a. Furnish and pay for a surety bond, satisfactory to the City,guaranteeing performance of the indemnity obligation;or b. Furnish a written acceptance of tender of defense and indemnity from Consultant's insurance company. Consultant will take the action required by the City within fifteen (15) days of receiving notice from the City. 21. Ownership of Documents. All plans, diagrams, analyses, reports and information generated in connec- tion with the performance of the Agreement ("Information") shall become the property of the City, but Consultant may retain copies of such documents as records of the services provided. The City may use the Information for its purposes and the Consultant also may use the Information for its purposes. Use of the Information for the purposes of the project contemplated by this Agreement ("Project") does not relieve any liability on the part of the Consultant, but any use of the Informa- tion by the City or the Consultant beyond the scope of the Project is without liability to the other, and the party using the Information agrees to defend and indemnify the other from any claims or liability resulting therefrom. 22. Dispute Resolution/Mediation. Each dispute, claim or controversy arising from or related to this Service Agreement or the relationships which result from this Agreement shall be subject to mediation as a condition precedent to initiating arbitration or legal or equitable actions by either party. Unless the parties agree otherwise, the mediation shall be in accordance with the Commercial Mediation Proce- dures of the American Arbitration Association then currently in effect. A request for mediation shall be filed in writing with the American Arbitration Association and the other party. No arbitration or legal or equitable action may be instituted for a period of 90 days from the filing of the request for mediation unless a longer period of time is provided by agreement of the parties. Cost of mediation shall be shared equally between the parties. Mediation shall be held in the City of Eden Prairie unless another location is mutually agreed upon by the parties. The parties shall memorialize any agreement resulting from the mediation in a Mediated Settlement Agreement, which Agreement shall be en- forceable as a settlement in any court having jurisdiction thereof. 23. Governing Law. This Agreement shall be controlled by the laws of the State of Minnesota. 24. Coaicts. No salaried officer or employee of the City and no member of the Board of the City shall have a financial interest, direct or indirect, in this Contract. The violation of this provision renders the Contract void. Any federal regulations and applicable state statutes shall not be violated. 25. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be con- sidered an original. 1903 E Wayzata Blvd I Wayzata, MN 55391 ( Tel 952.473,4882 I Fax 952.473.500E I www.bakerassociates,com BAKER ASSOCDATES Executed as of the day and year first written above. CITY OF EDEN PRAIRIE Mayor City Manager FIRM NAME By: Its: 1903 E Wayzata Blvd I Wayzata, MN 55391 I Tel 952,473.4882 I Fax 952.473,5006 I www.bakerassociates.com 13 w oa E R ASSOCIIATES PROJECT PROPOSAL July 7, 2009 Sue Kotcheaver Date ..07/07/09 Finance Manager Job No 09.EPB.003 8080 Mitchell Road Version 1 Eden Prairie, MN 55344 Prairie Village Eden Prairie Liquor-Exhibit 14 Account Management: Wendy Satterlee/Kayla Kuvaas Phase 1: Design Adaptation&Development Soffit Mural $6,900-$7,200 Resize Existing Soffit Mural Run and develop/extend designacross remainder of soffit(20-50 ft longer)(46-48 hours x$150/hour) End Cap Signage $3,200-$3,800 Develop additional Design Ideas to match look and feel of existing end cap signage.Images to reflect product housed on shelving(21.34-25.34 hours x $150/hour) Channel Signs (Above Gondola Runs)- $4,800-$5,200 Reuse existing designs develop/extend design to additional signs for added gondola runs (32-34.7 hours x$150 hours) Entrance Mural $4,000-$4,800 Develop &/or Adapt Design Concept for Entryway Mural toaccommodate space (26.67-32 hours x$150/hour) Beer Cave $2,400-$3,200 Develop Design,layout&Signage for Beer Cave (16-21.34 hours x$150/ hour) 1903 E Wayzata Blvd I Wayzata, MN 55391 I Tel 952.473.4882 I Fax 952.473.5006 I www.bakerassociates.com BAKER A S S O C O A T E S Entrance Door Decals $900 Resize Entryway Door Decals (logo,hours,grass&bird)-1 set(6 hours x$150/ hour) Category Signage/Gondola Signage $600-$1,000 Create Additional typeset Options as needed (qty. 10-15) (4-6.67 hours x$150/hour) Large Wall Sepia Frames&Vinyl Drawdown Words $650-$800 Adapt design layout for frames &words on blank wall(4.34-5.34 hours x$150/ hour) Sourcing of Additional Materials/Lighting Options $1,100-$1,400 (14.67-18.67 hours x$75/hour) Phase 2: Design Adaptation &Development Revise Phase 1 designs based on client feedback $4,200-$5,000 (28-33.34 hours x$150/hour) Phase 3: Design Adaptation &Development Finalize designs based on client feedback and build designfiles Full Size High Res $4,800-$5,200 in preparation for Mechanical Production (32-34.67 hours x$150/hour) Production/Mechancials Resubmit Existing Mechanicals that had no changes to vendors: $3,200 • Fabric Banners • End Cap Signs • Channel Run Signs • Window Posters Signs • All Vinyl lettering for Category Signs • Tasting 3D lettering&Tasting Wall Decals 1903 E Wayzata Blvd I Wayzata, MN 55391 I Tel 952,473,4882 Fax 952,473.5006 ( www.bakerassociates,com BAKER ASSOCIATES Submit New or Adapted Mechanicals to vendor: $7,600 • Soffit Wall Mural • Entryway Mural • New Channel Runs • New End Cap Signs • Door Decal • New Beer Cooler Signage • Sepia Prints/Vinyl Letters • (50.67 hours x$150/hour) Final Space Plans- $1,200-$1,800 Paint,Tile,Material Selection to Contractor(16-24 hours x$75/hr Project Management- $4,000-$5,200 Vendor Resourcing,Meetings with Vendors &Info/Specs for Ordering to Client, Call inSeparate Orders to each vendor when needed (53.3-69.3 hours x$75/hr) Baker On-Site Coordination $10,000-$12,000 (133.3-160 hours x$75/hr) Staging Staging of Store(above Cabinets) out of Pocket for accessories $1,800 2 People 2 Days of Staging(29.3-42.6 hours x$75/hr per person) $2,200-3,200 Miscellaneous $3,000-$4,000 Computer Color Outputs,Delivery/Courier,Material Samples,etc. Royalty Free Imagery $10,500-$12,500 TOTAL FEES $77,050-$89,800 1903 E Wayzata Blvd ( Wayzata, MN 55391 Tel 952,473.4882 j Fax 952,473,500E I www,bakerassociates.com BAKERra ASSOCIATES PHASE I: DESIGN DEVELOPMENT AGREEMENT: The above proposal constitutes our best estimate of the project costs.If we have misinterpreted any of the pro- ject scope,we would appreciate the opportunity to discuss it,to ensure that our understanding of the project and our fees are ap ropriate. This propo co prises the Agreemen b een City of Eden Prairie and S. . B er Associates,Inc. If this Agreement is a sfactory,please sign, d and return one copy to us as author tion to proceed. S.W. Baker Associates,I , ill also accept a Lett of tent,or Purchase Order as autho 'za 'on to proceed. Please indicate who will be responsible for retaining intellectual property council to properly search and clear trademark(s) developed during the scope of this project ❑ Scott W. Baker Associates will be responsible ❑✓ (CompanyName)will be responsible Accepted: (CompanyN e) I/We have re d, un/ stand and agree to the above stated terms. Signature: Date: / // Accepted: .W.Baker sociates,Inc. Scott .Baker: Daie: 7/7/09 1903 E Wayzata Blvd I Wayzata, MN S5391 I Tel 952.473.4882 I Fax 952,473.5006 I www.bakerassociates.com BAKER ASSOCIATES STATEMENT OF PROFESSIONAL POLICIES: Confidentiality—S.W Baker Associates maintains the strictest confidence concerning all material divulged to us by our clients.Measures taken include project code names and shredding documentation. Design Rights—Any creative work developed by S.W Baker Associates,which in its final form is selected, approved and paid for by a client for use,becomes the exclusive property of that client. Design Protection—Any designs,names and trademarks created by S.W Baker Associates are not intended to infringe upon the rights of others.However, due to the complexity of such rights, S.W Baker Associates cannot guarantee that its clients will be protected from claims of others,no matter how inadvertent the cause. S.W Baker Associates does not obtain clearance or registration of such rights on behalf of clients, unless spe- cifically requested in the course of a project.We recommend that legal counsel be used to determine the avail- ability of trademarks and other creative work. Non-Compete—S.W Baker Associates will not work on products or services that are in direct competition at the same time. If projects arise that are construed as competitive in nature, S.W Baker Associates will either decline the requested assignment from the second client or request authorization to proceed from both clients. Project Cancellation—S.W Baker Associates understands this project can be cancelled by(CompanyName) at the conclusion of any phase for any reason. Design and OOP Fees incurred up until cancelation are ex- pected to be paid in full at such time. Budget Notes: Proposals are Estimates—This proposal is our estimate of the costs associated with producing the described work.We guarantee the final costs, based on the project as we currently understand it. If a change in project scope or direction causes a phase to be repeated, or the addition of any other new work,change order esti- mates will be supplied for client approval.Also,some steps may be under estimated while others may be over. Should this happen,we request that any unspent budget from one step may be used on another step,provid- ing the total budget remains the same. Out-of-pocket Expenses—Costs for printouts,shipping, and other miscellaneous out-of-pocket expenses are included in this proposal and are estimated at approximately 10% of the design fees. Travel—Travel expenses are not included in this proposal. Actual charges will be billed at cost. Fees Quoted for Services—Our quotations remain in effect for sixty days from the date of the proposal and are subject to modification after that time period. Fees are also subject to modification if the final project var- ies significantly from that outlined on our proposal. 1903 E Wayzata Blvd I Wayzata, MN 55391 I Tel 952,473,4882 I Fax 952.473,5006 ( www,bakerassociates,com