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Home My WebLink AboutCC - October 2, 2012N O D VE 1685 CROSSTOWN BOULEVARD N.W.. ANDOVER, MINNESOTA 55304 • (763) 755 -5100 FAX (763) 755 -8923 • WWW.ANDOVERMN.GOV Regular City Council Meeting — Tuesday, October 2, 2012 Call to Order — 7:00 p.m. Pledge of Allegiance Proclamation — Girl Scouts' Centennial Day of Service on October 13, 2012 Resident Forum Agenda Approval 1. Approval of Minutes (9/18/12 Regular; 9/18/12 Closed) Consent Items 2. Approve Payment of Claims — Finance 3. Receive Assessment Roll/Order Public Hearing/12 -2a (Ivywood Estates), 12 -2b (Johnson's Oakmount Terrace) & 12 -2c (1 47 h Avenue NW) /2012 Street Reconstruction — Engineering 4. Approve Assessment Roll/Waive Public Hearing/Adopt Assessment Roll/12- 32/2118 -2120 — 140th Lane NW /WM — Engineering 5. Approve Resolution/Request Anoka County to Conduct Speed Study - Andover Blvd. NW from Hanson Blvd. NW to Railroad Tracks — Engineering 6. Appoint Election Judges for the General Election — Administration 7. Declare Costs, Order Assessment Roll & Schedule Public Hearing/2012 Delinquent Utility Service Charges, Mowing Fees, Tree Removal, False Alarm Fines & Misc. Abatement Fees — Finance 8. Approve Funds Transfer /40 Acre Park Improvements — Finance 9. Approve Sub -Lease — Subway LLC — Community Center Discussion Items 10. Public Hearing: Vacation of Easement Request —1459 - 160`" Lane NW— Jeff and Mary Tullbane — Planning 11. Consider an Amendment to the City Code 12 -2 -2 Definitions — Hours of Operation — Planning Staff Items 12. Schedule October Council Workshop — Administration 13. Administrator's Report — Administration Mayor /Council Input Closed Session — Public Works Union Negotiations Update Property Negotiations PID #s 11- 32 -24 -32 -0001, 11- 32 -24 -31 -0001, 11- 32 -24 -24 -0001, & 11- 32 -24 -22 -0001 Adjournment Girl Scout Centennial Day of Service October 13, 2012 Whereas, water is a valuable natural resource for Andover; and Whereas, the people of Andover use water and are affected by its quality; and Whereas, there are 250 active Andover Girl Scouts who pride themselves on giving back to the community and are committed to clearing storm grills of lawn and natural debris; and Whereas, this effort will lower phosphorus levels in Andover rivers and Girl Scout Centennial Day of Service 914ichae( . Gamache, Mayor City ofAndover FOR IMMEDIATE RELEASE Girl Scouts' Centennial Day of Service Creates Lasting Impact in Andover, MN Clean -up project improves local water quality (Andover, MN) September 14, 2012 — On October 13, Girl Scouts in Andover will celebrate their final Girl Scout Centennial event by working together to improve the local watershed. Taking place in all 49 counties of the Girl Scouts of Minnesota and Wisconsin River Valleys Council, the Centennial Day of Service: 2012 Take Action Project is designed to remove 20,000 pounds of phosphorus, prevent 10 million pounds of algae growth and save $6 million in clean- up costs through a one -day effort. Two hundred and fifty girls in Andover will spend the day raking leaves and grass from storm drain surfaces and public areas, distributing door hangers in neighborhoods to raise awareness, and marking storm drains with an "Only Rain Down the Storm Drain" message. Every year, thousands of Minnesota, Wisconsin and Iowa waterways are polluted with runoff and other contaminants. In partnership with the Freshwater Society and with support from 3M, River Valleys' Centennial Day of Service honors Girl Scouts' longstanding tradition of service and gives back to communities that have embraced Girl Scout troops for decades. In Andover, girls will gather at Oak View Middle School for registration and kickoff. Together, Girl Scouts and their family and friends will move to different watershed areas for the cleanup project and return to Oak View to celebrate their accomplishments and have lunch. To learn more about the Centennial Day of Service: 2012 Take Action Project, visit GSRV100.org. About Girl Scouts of Minnesota and Wisconsin River Valleys Each year, the Girl Scouts of Minnesota and Wisconsin River Valleys serves nearly 45,000 girls in 49 counties of southern Minnesota and western Wisconsin. In partnership with nearly 18,000 adult volunteers, River Valleys helps girls discover new abilities, connect with new friends and take action to improve their communities. Girl Scouts is the world's preeminent leadership development organization for girls and builds girls of courage, confidence and character who make the world a better place. For more information, call 800 - 845 -0787 or visit GirlScoutsRV.org. Can tennial Platinum Spomorrn ae „ = MOA Mme. 7 XcelExrgy r "a.ac0011. Andersen CARLSON ® csruean :BYYi L MALL`. .... .. ........ �:.'�OUIDOOR ........... Centennial Day of Service: 2012 Take Action Project Talking Points • In celebration of 100 years of Girl Scouting, Girl Scouts of Minnesota and Wisconsin River Valleys is hosting its final centennial event, the Centennial Day of Service: 2012 Take Action Project, on October 13. • Throughout River Valleys' 49 counties, more than 30,000 girls and adult volunteers will work to raise awareness about simple steps that can improve local water quality. • During the event, girls will rake leaves in parks and public places, distribute door hangers to inform the public about ways to help, and mark storm drains with a message to remind the public that what goes down storm drains ends up in local rivers and lakes. • Girl Scouts want to raise awareness and remind their neighbors that when grass, leaves and pet waste travel to waterways through storm drains, phosphorus is created by the decaying leaves, turning clear water green with algae. This depletes oxygen levels in the water, making it hard for fish and other water animals to survive. • The goal of the 2012 Take Action Project is to celebrate Girl Scouts' longstanding tradition of service and to stop 20,000 pounds of phosphorus from ending up in local waterways. This will prevent 10 million points of algae growth and save $6 million in clean -up costs throughout the council. • Sponsored by 3M and in partnership with the Freshwater Society, participating Girl Scouts will also work towards earning a water quality patch. • Current Girl Scouts or girls interested in joining Girl Scouts can sign up to participate for this event until October 5. • For more information about Girl Scouts and the Centennial Day of Service: 2012 Take Action Project, go to GSRV100.org. CARLSOY aeweiin uii s 3M MOA �.,oe, ,�,. -. 0=00R ® .... Ye ANDOVT Y 0 F^ E 1685 CROSSTOWN BOULEVARD N.W.. ANDOVER, MINNESOTA 55304 • (763) 755 -5100 FAX (763) 755 -8923 • WWW.ANDOVERMN.GOV TO: Mayor and City Council CC: Jim Dickinson, City Administr; FROM: Michelle Hartner, Deputy City SUBJECT: Approval of Minutes DATE: October 2, 2012 INTRODUCTION The following minutes were provided by TimeSaver, reviewed by Administration and submitted for City Council approval: September 18, 2012 Regular September 18, 2012 Closed DISCUSSION The minutes are attached for your review. ACTION REQUIRED The City Council is requested to approve the above minutes. Respectfully submitted, �h.4wnL, Michelle Hartner Deputy City Clerk Attach: Minutes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 REGULAR ANDOVER CITY COUNCIL MEETING — SEPTEMBER 18, 2012 MINUTES The Regular Bi- Monthly Meeting of the Andover City 1 Gamache, September 18, 2012, 7:02 p.m., at the And( NW, Andover, Minnesota. Councilmembers present: Mike Knight, Sheri Bukl Councilmember absent: None Also present: City Administrator, Jim 1 Community Developmer City A Others PLEDGE OFALLEGL9NCE RESIDENT FORUM No one AGENDA-APPROVAL called to order by Mayor Mike 11, 1685 Crosstown Boulevard Julie Trude and Tony Howard .t Director, Dave C .y Engineer, David Mayor Gamache stated staff hadsupplied supplemental information for Item 9 on the Consent Items and for the Monthly Sheriff s Report. Motion by Councilmember Trude,- Seconded by Councilmember Bukkila, to approve the Agenda as presented with the supplemental information. Motion carried unanimously. APPROVAL OFMINUTES August 28, 2012 City Council Workshop Motion by Councilmember Trude, Seconded by Councilmember Bukkila, to approve the August 28, 2012, City Council Workshop minutes as presented. The motion carried unanimously. September 4, 2012 Regular City Council Meeting Regular Andover City Council Meeting Minutes — September 18, 2012 Page 2 1 Motion by Councilmember Bukkila, Seconded by Councilmember Howard, to approve the 2 September 4, 2012, Regular City Council Meeting minutes as presented. The motion carried 3 unanimously. 4 5 September 4, 2012 Closed City Council Meeting 6 7 Councilmember Trade stated on page 5, line 14, there should be a period (.) after the word 8 requirements and the rest of the sentence removed. 9 10 Motion by Councilmember Trade, Seconded by Councilmember Howard, to approve the September 11 4, 2012, Closed City Council Meeting minutes as amended. The motion carried unanimously. 12 13 CONSENT ITEMS 14 15 Item 2 Approve Payment of Claims 16 Item 3 Approve Change Order #1/11- 48/Well #6 (See Resolution R083 -12) 17 Item 4 Declare Cost/Order Assessment. Roll /12 -2a (Ivywood Estates), 12 -2b (Johnson's 18 Oakmount Terrace) and 12 -2c (147th Avenue NW) /2012 Street Reconstruction 19 (See Resolution R084 -12 & R085 -12) 20 Item 5 Receive Assessment Roll /Order Public Hearing/11- 40/133rd Avenue NW 21 Reconstruction (See Resolution R086 -12) 22 Item 6 Declare Cost /Order Assessment Roll /12- 32/2118 -2120 —140"' Lane NW/WM 23 (See Resolution R087 -12) 24 Item 7 Award Quote /12 -34 /Relocation of Recycling Center 25 Item 8 Approve Compensating Change Order #1/11 - 43/140"' Lane NW Water Main 26 Improvements (See Resolution R088 -12) 27 Item 9 Award Bid/07- 20/Parkside at Andover Station 3rd Addition (Supplemental) (See 28 Resolution R089 -12) 29 Item 10 Accept Donation/11 -10 /South Coon Creek Drive NW Reconstruction/Mickman 30 Brothers (See Resolution R090 -12) 31 Item 11 Award Quote /Surface Seal Brick Structures 32 Item 12 Declare Surplus Equipment 33 34 Motion by Councilmember Knight, Seconded by Councilmember Trade, for approval ofthe Consent 35 Agenda as presented. Motion carried unanimously. 36 37 ANOKA COUNTYSHERIFF'S OFFICE MONTHLYREPORT 38 39 Commander Halweg, Anoka County Sheriff s Office, provided the City Council and residents 40 with an update on law enforcement activities within the City for August 2012 including 7 DUI 41 arrests, 4 domestic arrests, an impaired motorcyclist who had fled from the officer and resisted 42 arrest and a single vehicle accident involving a motorist going in excess of 90 mph. This case is 43 currently with the Investigative Unit. Regular Andover City Council Meeting Minutes — September 18, 2012 Page 3 1 PUBLIC HEARING: VACATION OF EASEMENT /15754 YELLOW PINE STREET NW 2 3 Community Development Director Carlberg stated the proposed vacation of easement would 4 eliminate the encroachment of a detached accessory structure placed in a portion of the drainage 5 and utility easement. The property owner, Mr. Morgenstern, is requesting a vacation for a . 6 portion of an existing easement in which an existing 8x12 accessory structure encroaches. The 7 City Engineer and Coon Creek Watershed District have reviewed the proposal and have no issues 8 with the vacation. However, the drainage and utility easement is part of a wetland protected by 9 Minnesota Chapter 8420 Wetland Conservation Act (WCA). WCA wetlands must not be 10 impacted unless by restoring, or creating wetlands of equal public value. The required 11 replacement of wetland impact is at a 2:1 ratio from an approved wetland bank. In this case, 90 12 square feet is impacted therefore 180 square feet of wetland credits will need to be purchased by 13 the applicant. 14 15 Councilmember Trude clarified the applicant would be purchasing the wetland banking credits 16 and the current structure does not impede the water flow of the neighboring properties. She 17 asked if there is a condition in the resolution requiring the applicant to purchase the wetland 18 credits. 19 20 Community Development Director Carlberg stated there is not a condition in the resolution but 21 the applicant will need to purchase these credits in order to meet the Watershed's requirements 22 and get approval. 23 24 Councilmember Trude suggested the Council add a condition requiring approval from the 25 watershed and the purchase of the wetland credits. 26 27 Motion by Councilmember Knight, Seconded by Councilmember Bukkila, to open the public 28 hearing at 7:13 p.m. The motion carried unanimously. 29 30 Motion by Councilmember Knight, Seconded by Councilmember Trude, to close the public 31 hearing at 7:14 p.m. The motion carried unanimously. 32 33 Motion by Councilmember Trude, Seconded by Councilmember Bukkila, to approve a resolution 34 granting the Vacation of Easement on Lot 13, Block 4, Woodland Oaks with the added condition 35 of approval from the Watershed District. The motion carried unanimously. 36 37 PUBLICHEARING: VACATIONOFEASEMENTS /PARKSIDEATANDOVER STATION2`VD 38 ADDITION 39 40 Community Development Director Carlberg stated the Andover Economic Development 41 Authority is requesting a vacation of easements. The proposed vacation of easements would 42 eliminate drainage and utility easements on Lots 1 -5, Block 1, and Outlots A, B, and C, and a 43 conservation easement on part of Outlot B. This is one step in clearing the way for a proposed Regular Andover City Council Meeting Minutes — September 18, 2012 Page 4 1 project. A revised preliminary plat and Planned Unit Development (PUD) to change the types of 2 houses from townhomes to single - family houses was heard at the Planning Commission's 3 September l Ph meeting. The proposed vacation of easement is contingent upon the approval of 4 the final plat for Parkside at Andover Station 3'd Addition and establishment of new drainage and 5 utility easements. 6 7 Councilmember Trude clarified the City would enforce the Code that requires two (2) trees on 8 each lot even though these lots are smaller than what is typically seen in Andover. 9 10 Community Development Director Carlberg stated the project would be required to meet the 11 City's code of two (2) trees per property and this will be enforced. 12 13 Motion by Councilmember Knight, Seconded by Councilmember Bukkila, to open the public 14 hearing at 7:19 p.m. The motion carried unanimously. 15 16 Motion by Councilmember Bukkila, Seconded by Councilmember Howard, to close the public 17 hearing at 7:20 p.m. The motion carried unanimously. 18 19 Motion by Councilmember Trude, Seconded by Councilmember Bukkila, to approve a resolution 20 granting the Vacation of Easement on Lots 1 -5, Block 1 and Outlots A, B, and C Parkside at 21 Andover Station 2nd Addition. The motion carried unanimously. 22 23 APPROVE REVISED PRELIMINARY PLAT AND REVISED PLANNED UNIT 24 DEVELOPMENT PARKSIDE AT ANDOVER STATION 25 26 Community Development Director Carlberg stated the first and second phases of the preliminary 27 plat/PUD have been revised to change the style of housing from attached townhomes and 28 detached townhome units to single - family units. This adjustment reduces the number of units in 29 Phase 1 from the planned 24 attached townhomes to 9 single - family units and increases the 30 number of units in Phase 2 from 33 detached townhomes to 36 single - family homes. The rear 31 yard setback is proposed to change from 33 -feet to 30 -feet and the side -yard setback from the 32 street will change from 25 -feet to 20 -feet. He reviewed the buildability, streets, pedestrian 33 access, and easements for the project. He also stated a majority of the trees would be removed 34 but the developer and builder would work to save as many as possible. There will be no park 35 dedication and trail fees with this project because these have been satisfied by the Andover 36 Economic Development Authority in the development of the Andover Station North ball fields 37 and other amenities. The Planning Commission recommends approval of the proposed project 38 subject to the conditions in the approval resolution including a review by the City Attorney to 39 determine if single - family homes could be built in the M 1 Zoning District. Community 40 Development Director Carlberg referenced an email in the council packet where the City 41 Attorney has determined the project meets the intent of the district and the City's Comprehensive 42 Plan. 43 Regular Andover City Council Meeting Minutes — September 18, 2012 Page 5 Councilmember Trade expressed concerns that a house on Lot 6 would have problems with a blind driveway access and the potential for the driveway to be close to the curve and conflict with snow removal activities. She asked if staff and the City Engineer had reviewed this parcel and if this would meet the City's standards. 6 City Engineer Berkowitz stated staff has looked at the layout and the house would be placed with 7 the garage to the east of the lot so the driveway would not be on the curve. There are similar 8 situations in other developments in the City. This is not a high traffic volume street or a through 9 street and staff would not have any significant concerns with this lot. The site lines are open 10 enough for anyone backing out of a garage in this location. 11 12 Councilmember Trade asked if this lot would be able to be fenced in by the property owner 13 based on the City's standards and ordinances. 14 15 Community Development Director Carlberg clarified a fence would be allowed along the side 16 but the site line would need to be preserved. They would be able to put in a taller fence in the 17 back yard and would not all be considered side yard. Any other additions made to these lots 18 would need to meet the City's standards and codes. 19 20 Councilmember Bukkila stated the traffic in this area would be minimal due to the configuration 21 of the streets and the location of the lots. 22 23 Councilmember Trade stated the proposed plat is an improvement over the previous plan. She 24 stated she would ask that the developer look closely at creating some type of association to 25 regularly maintain issues that may arise because these will have a greater impact on this 26 neighborhood because the lots are smaller than what the City has approved in the past. 27 28 Community Development Director Carlberg stated the calls staff had received from neighboring 29 residents were supportive of the change to single - family homes and not rental type units or 30 townhomes. 31 32 City Attorney Baumgartner stated the question asked by the Planning Commission was the 33 legality of allowing single - family detached homes in the Ml District. He stated the project's 34 original Planned Unit Development (PUD) had been revised in 2006 to allow for the detached 35 townhome units. Title 13, Chapter 3, Section 13 -3 -1 of the City Code, which identified the 36 purpose of a PUD, states that all standards and provisions relating to an original zoning district 37 shall apply, unless otherwise approved as part of the PUD. Since the PUD amendment was 38 granted in 2006, it must be assumed that the Council at that time made sufficient findings as 39 required under Section 13 -3 -9 to allow for the detached townhomes. The question of whether 40 revising the preliminary plat to allow for detached single - family homes is still in keeping with 41 the intent of the Comprehensive Plan and purposes of the PUD for this particular development. 42 43 Councilmember Trade suggested Condition 9 be removed from the resolution since the City Regular Andover City Council Meeting Minutes — September 18, 2012 Page 6 1 Attorney has addressed the concerns of the Planning Commission. 2 3 Motion by Councilmember Trude, Seconded by Councilmember Bukkila to approve a resolution 4 amending resolution R052 -05 to modify the preliminary plat and Planned Unit Development 5 standards of "Parkside at Andover Station" located in Section 34, Township 32, Range 24, 6 Anoka County, Minnesota as amended by the removal of condition 9. The motion carried 7 unanimously. 8 9 APPROVE FINAL PLATITARKSIDE AT ANDOVER STATION 3RD ADDITION 10 11 Community Development Director Carlberg clarified the Council was asked to approve the final 12 plat for the P Addition at Parkside at Andover Station. 13 14 Motion by Councilmember Knight, Seconded by Councilmember Howard to approve a 15 resolution approving the final plat of "Parkside at Andover Station Third Addition" on property 16 located in Section 34, Township 32, Range 24, Anoka County, Minnesota. The motion carried 17 unanimously. 18 19 CONSIDER NO PARKING RESOL UTION ON PRAIRIE ROAD NW AND 146TH LANE NW 20 21 Mayor Gamache stated there had been several calls regarding traffic issues that had occurred over 22 the past weekend. The City needs to address this area so there is not a serious accident at the 23 corner of Prairie Road and 146`h Lane NW. People are parking much to close to the intersections 24 and this makes it difficult for people to see around the cars when trying to get onto Prairie Road. 25 According to the manuals the City uses for placing signs and based on the speed of the road no 26 parking should be allowed within 1,000 -feet of the intersection. Mayor Gamache stated that 27 distance would be excessive for this location. He recommended the City consider posting "no 28 parking here to corner" signs within 200 -feet to 250 -feet of the intersection. 29 30 Councilmember Trude stated the signs would be good to establish the site lines. She stated she 31 would agree with no parking within 200 -feet of the corners. 32 33 Mayor Gamache suggested posting no parking within 250 -feet of the corner on all sides Prairie 34 Road and let the Sheriff's office know so this can be monitored. 35 36 Councilmember Howard asked if this would include posting no parking along 146` Lane NW, 37 38 Mayor Gamache stated he would recommend 250 -feet along Prairie Road and 25 -feet on 14601 39 Lane NW. 40 41 City Engineer Berkowitz recommended more than 25 -feet from the corner along 146`h Lane NW. 42 43 Councilmember Howard stated he would also agree with more than 25 -feet along this road. This Regular Andover City Council Meeting Minutes — September 18, 2012 Page 7 may push more cars to the north parking lot. Councilmember Bukkila suggested 50 -feet from the corner on 146th Lane NW so this does not impede on the residents who live along this road. City Engineer Berkowitz clarified the City is suggesting posting no parking within 50 -feet of the corner along both sides of 146`h Lane NW and 250 -feet along Prairies Road. 9 Councilmember Trade suggested adding another park sign on Prairie Road for those traveling 10 south on Prairie Road to let drivers know there is a park coming up. She suggested next to the 11 single - family home at the corner of 148th Lane and Prairie Road. She also asked if a "children at 12 play" sign could be added. 13 14 Councilmember Bukkila stated the City does not want to post too many "children at play" signs 15 because they would loose their effectiveness in the areas where they are really needed, such as 16 around the schools. 17 18 Councilmember Trade stated she would like to see a streetlight added on the corner of 146th Lane 19 and Prairie Road as well. 20 21 Motion by Councilmember Knight, Seconded by Councilmember Howard to adopt a standard no 22 parking resolution posting "No Parking Here to Corner" signs with a distance of 250 -feet north 23 and south, along Prairie Road from 146t` Lane NW and 50 -feet along east and west along 146`" 24 Lane NW from Prairie Road on both sides of the streets. The motion carried unanimously. 25 26 City Engineer Berkowitz stated staff would add a sign indicating a park ahead along Prairie Road 27 and 148th Lane. 28 29 Mayor Gamache stated the athletic associations need to be notified of the change as well. 30 31 SCHEDULE OCTOBER EDA 32 33 Motion by Councilmember Trade, Seconded by Councilmember Bukkila to schedule an EDA 34 Meeting at 6:00 p.m. before the October 16, 2012, City Council Meeting. The motion carried 35 unanimously. 36 37 ADMINISTRATOR'S REPORT 38 39 City Administrator Dickinson updated the City Council and the residents regarding 40 administration and city department activities, legislative activities, development and CIP 41 projects, and upcoming meetings and community events including open space negotiations, a 42 property purchase along Crosstown Drive continues to move forward. The City had 720 cars at 43 the September 8h Recycling Day event. There have been 53 new single - family, there are 124 Regular Andover City Council Meeting Minutes — September 18, 2012 Page 8 1 units with the Arbor Oaks 71 units. There is potential for an additional 10 -15 new single - family 2 homes within other developments in Andover. He reminded residents to keep their doors and 3 windows locked and keep valuables out of sight. He also stated residents should be aware of the 4 latest scam occurring with Craigslist and not send cashier checks to refund money to people. 5 6 City Engineer Berkowitz stated the outfield fence at Sunshine Park has been replaced. Staff is 7 also working on the relocation of the recycling center. This will be a project that will occur in 8 several phases. The Council approved having the required class IV brought in and this will be 9 done in the next few weeks. The South Coon Creek Drive reconstruction project will be 10 completed by the end of October but it will not be assessed prior to the end of the year. There 11 had been delays with this project so it will be assessed in early 2013. The other road 12 reconstruction projects for 2012 will be assessed by the end of the year. He clarified South Coon 13 Creek Drive would be open by the end of October and ready for winter. He also stated the City 14 received a $1,000 donation from Mickman Brothers for plant material for rain gardens in the 15 South Coon Creek Drive project. 16 17 Councilmember Knight stated a resident had asked if the City had a standard depth for manhole 18 covers. There are several in the City that are low. 19 20 City Engineer Berkowitz stated the City works to place manhole covers at a depth of /" to %" 21 below pavement but the City is not able to control the depth of the manhole covers along the 22 County roads. 23 24 Community Development Director Carlberg stated Arbor Oaks had their ground breaking/ground 25 blessing ceremony on Monday. The Conditional Use Permit request for Off -Sale Liquor sales for 26 Wal -Mart will be included in the October 16, 2012, City Council meeting. Fairview Clinic will 27 be expanding their location but there is no time frame for this expansion at this time. 28 29 MAYORICOUNCIL INPUT 30 31 (Planning Commission Public Hearing) Councilmember Trade stated the City Council had 32 talked at a workshop about adding definitions to the City code for continuous and non- 33 continuous operation. These definitions will be going to a public hearing with the Planning 34 Commission on Tuesday, September 25`h Based on the discussions at the Planning Commission 35 workshop these definitions could expand into hours of operation for other zoning districts. 36 37 Community Development Director Carlberg stated staff had sent notices to the business 38 community for this hearing. The neighboring residential areas were not notified because this is a 39 text amendment not pertaining to a particular business or property. 40 Regular Andover City Council Meeting Minutes — September 18, 2012 Page 9 1 (Walk for Hope) Mayor Gamache stated Alexandra House Walk for Hope is September 29'x' and 2 registration closes September 27t`. The event will be held at Bunker Lake Regional Park and 3 starts at 9:00 a.m. 4 5 Mayor Gamache recessed the regular City Council meeting at 8:07 p.m. to a closed session of the 6 City Council to discuss Public Works Union Negotiations, Property Negotiations for PID #11- 7 32 -24 -32 -0001, 11- 32 -24 -31 -0001, 11- 32 -24 -24 -0001, and 11- 32 -24 -22 -0001. 8 9 The City Council reconvened at 8:29 p.m. 10 11 ADJOURNMENT 12 13 Motion by Councilmember Bukkila, Seconded by Councilmember Howard, to adjourn. Motion 14 carried unanimously. The meeting adjourned at 8:30 p.m. 15 16 Respectfully submitted, 17 18 Tina Borg, Recording Secretary 19 20 21 22 1 Regular Andover City Council Meeting Minutes — September 18, 2012 Page 10 REGULAR ANDOVER CITY COUNCIL MEETING MINUTES - SEPEMBER 18, 2012 TABLE OF CONTENTS PLEDGEOF ALLEGIANCE .......................................................................... ............................... 1 RESIDENTFORUM ....................................................................................... ............................... 1 AGENDAAPPROVAL ................................................................................... ............................... 1 APPROVALOF MINUTES ............................................................................ ............................... 1 CONSENTITEMS .......................................................................................... ............................... 2 Item 2 Approve Payment of Claims .......................................................... ............................... 2 Item 3 Approve Change Order #1 /11- 48/Well #6 (See Resolution R083- 12) ......................... 2 Item 4 Declare Cost/Order Assessment Roll /12 -2a (Ivywood Estates), 12 -2b (Johnson's Oakmount Terrace) and 12 -2c (147`" Avenue NW) /2012 Street Reconstruction (See Resolution R084 -12 & R085- 12) .......... ..:............................................ ............................... 2 Item 5 Receive Assessment Roll /Order Public Hearing/11- 40/133rd Avenue NW Reconstruction (See Resolution R086- 12) ........................................... ............................... 2 Item 6 Declare Cost/Order Assessment Roll /12- 32/2118 -2120 —140th Lane NW/WM (See ResolutionR087- 12) ............................................................................ ............................... 2 Item 7 Award Quote /12- 34/Relocation of Recycling Center .................... ............................... 2 Item 8 Approve Compensating Change Order #1/11- 43/140th Lane NW Water Main Improvements (See Resolution R088- 12) ............................................ ............................... 2 Item 9 Award Bid/07- 20/Parkside at Andover Station 3rd Addition (Supplemental) (See ResolutionR089- 12) ............................................................................ ............................... 2 Item 10 Accept Donation/11 -10 /South Coon Creek Drive NW Reconstruction/Mickman Brothers (See Resolution R090 -12) ..................................................... ............................... 2 Item 11 Award Quote /Surface Seal Brick Structures ................................. ............................... 2 Item 12 Declare Surplus Equipment ........................................................... ............................... 2 ANOKA COUNTY SHERIFF'S OFFICE MONTHLY REPORT ................. ............................... 2 PUBLIC HEARING: VACATION OF EASEMENT /15754 YELLOW PINE STREET NW (See ResolutionR091 -12) ................................................................................... ............................... 3 PUBLIC HEARING: VACATION OF EASEMENTS / PARKSIDE AT ANDOVER STATION 2ND ADDITION (See Resolution R092 -12) ................................................ ............................... 3 APPROVE REVISED PRELIMINARY PLAT AND REVISED PLANNED UNIT DEVELOPMENT PARKSIDE AT ANDOVER STATION (See Resolution R093 -12) .......... 4 APPROVE FINAL PLAT/PARKSIDE AT ANDOVER STATION 3RD ADDITION (See ResolutionR094 -12) ................................................................................... ............................... 6 CONSIDER NO PARKING RESOLUTION ON PRAIRIE ROAD NW AND 146TH LANE NW (See Resolution R095 -12) ........................................................................... ............................... 6 SCHEDULEOCTOBER EDA ........................................................................ ............................... 7 ADMINISTRATOR'S REPORT ..................................................................... ............................... 7 MAYOR/COUNCIL INPUT ........................................................................... ............................... 8 (Planning Commission Public Hearing) . .............................................................................. :..... 8 (Walk for Hope) ........................................................................................... ............................... 9 1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755 -5100 FAX (763) 755 -8923 • WWW.CI.ANDOVER.MN.US TO: Mayor and Councilmembers CC: Jim Dickinson, City Administrator / Finance Direct FROM: Lee Brezinka, Assistant Finance Director SUBJECT: Payment of Claims DATE: October 2, 2012 INTRODUCTION Attached are disbursement edit lists for claims related to the on going business of the City of Andover. DISCUSSION Claims totaling $357,044.34 on disbursement edit list #1- 5 from 09/14/12 — 09/27/12 have been issued and released. Claims totaling $580,735.87 on disbursement edit list #6 dated 10/02/12 will be issued and released upon approval. BUDGET IMPACT The edit lists consist of routine payments with expenses being charged to various department budgets and projects. ACTION REQUESTED The Andover City Council is requested to approve total claims in the amount of $937,780.21. Please note that Council Meeting minutes will be used as documented approval. Respectfully submitted, Lee Brezinka Attachments: Edit Lists W �y QI CIO 0 U U a� 0 b O 4-i O O a U U r� V S-i U O i 9 0. N N O O � o q o 0 V V 'GU w �i U a E 7 z u 4 r. Q e u C T C. a C O C c 'u 'L U n- w _ V W CMi ONi P� O O O O O O O O O O O O w w� O N O�� a VOl VC1 VOl h h� ? 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ANDOVER, MINNESOTA 55304 • (763) 755 -5100 FAX (763) 755 -8923 • WWW.ANDOVERMN.GOV TO: Mayor and Council Members CC: 10 me] Jim Dickinson, City Administral David D. Berkowitz, Director of Engineer SUBJECT: Receive Assessment Roll/Order Public Hearing/12 -2a (Ivywood Estates), 12 -2b (Johnson's Oakmount Terrace) & 12 -2c (147`h Avenue NW) /2012 Street Reconstruction — Engineering DATE: October 2, 2012 INTRODUCTION The City Council is requested to receive the assessment roll and approve the resolution ordering the public hearing on the proposed assessment for 2012 Street Reconstruction, Projects, 12 -2a (Ivywood Estates), 12 -2b (Johnson's Oakmount Terrace) & 12 -2c (147th Avenue NW). DISCUSSION During the summer of 2012, the streets in the above referenced developments were reconstructed. In accordance with the Roadway Reconstruction Assessment Policy, twenty -five percent (25 %) of the total project costs are being assessed to the benefiting properties. The following table depicts the total project costs, assessable costs, City costs, feasibility assessment amount per unit, and actual assessment amount per unit for each development. Project # Total Project Costs Assessable Costs (25 %) City Costs (75 %) Feas. Assess. Rate Per Unit Actual Assess. Rate Per Unit 12 -02A $277,422.36 $53,509.18 $223,913.18 $5,160.00 $3,822.08 12 -02B &C $570,481.82 $109,602.96* $460,878.86 $6,170.00 $4,566.79 * For the 147`h Avenue NW project, costs for extra depth pavement section, widening, and costs for the north half of the roadway (no properties fronting north side of 147h Avenue NW) are being funded 100% by the City. The Assessment Rolls are on file in the City Clerk's office for review. BUDGETIMPACT Seventy -five percent (75 %) of the total project costs for the street reconstruction project will be funded from the City's Road & Bridge Fund along with Municipal State Aid funds and the remaining 25% of the total project costs will be assessed to the benefiting properties. Based upon current market conditions, the finance department is recommending these assessments be extended over a 10 -year period at a 4.5% interest rate. ACTION REQUIRED The City Council is requested to receive the assessment rolls and approve the resolution ordering the public hearing on the proposed assessment for 2012 Street Reconstruction, Projects, 12 -2a (Ivywood Estates), 12 -2b (Johnson's Oakmount Terrace) & 12 -2c (14Th Avenue NW. spectfully submitted, David D. Berkowitz Attachments: Resolution & Summary of the Assessment Rolls CITY OF ANDOVER COUNTY OF ANOKA STATE OF MINNESOTA RES. NO. MOTION by Councilmember to adopt the following: A RESOLUTION FOR PUBLIC HEARING ON PROPOSED ASSESSMENT FOR PROJECT NOS. 12 -2a IVYWOOD ESTATES 12 -2b JOHNSONS OAKMOUNT TERRACE & 12 -2c 147 1 AVENUE NW RECONSTRUCTION, WHEREAS, by a resolution passed by the City Council on September 18, 2012, the City Clerk was directed to prepare a proposed assessment of the cost of the improvement for Project Nos. 12 -2a. 12 -2b & 12 -2c . WHEREAS, the City Clerk has notified the Council that such proposed assessment has been completed and filed in her office for public inspection. NOW, THEREFORE, BE IT RESOLVED by the City Council of Andover, Minnesota: 1. A hearing shall be held the 7th day of November , 2012 , in the City Hall at 7:00 PM to pass upon such proposed assessment and at such time and place all persons owning property affected by such improvements will be given an opportunity to be heard with reference to such assessment. 2. The City Clerk is hereby directed to cause a notice of the hearing on the proposed assessment to be published once in the official newspaper at least two weeks prior to the hearing, and she shall state in the notice the total cost of improvement. She shall also cause mailed notice to be given to the owner of each parcel described in the assessment roll not less than two weeks prior to the hearings. MOTION seconded by Councilmember and adopted by the City Council at a regular meeting this 2nd day of October , 2012 , with Councilmembers voting in favor of the resolution, and Councilmembers against, whereupon said resolution was declared passed. CITY OF ANDOVER ATTEST: Michael R. Gamache - Mayor Michelle Hartner — Deputy City Clerk voting J J F Z w 2 U) y W N Q Q Z LL N W Q LU w a O O O V V c Q O w List of Assessed Properties Exhibit 6 N 1 c w w N w w w N W W W N w N 95 0 0 0 0 0 0 0 0 0 0 0 0 0 0 N N N N N N N N N N N N N N N N N N N N N N N N N N N N N 01 O N N W c0 W GO W o0 M cq N N oD N Y1 V y M M M M M M M M M M M M M M Q N fA 69 c fA Hi fH EA cA fA cH 69 cA 69 69 �. 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O 0 .0c o 0 0 0 0 0 0 0 0 0 0 0 0 0 £ 0 O 0 O 0 O 0 O 0 O co co 0 O 0 O 0 O 0 O 0 O 0 W 0 O 0 W 0 N cc d M m W W U) U) W W W W W W M M C%l U N W Q fA cA 69 fA (19 EA EA 69 EA fR EA M N 7 T O M O M O M O M M 0 M 0 M 0 M 0 M 0 M 0 M 0 M 0 M (,) In M In 1A In � to 1n In 1n 1n 1n to 0 � L c Z m W m z � z � Z � z 2� Z z m Z m Z 2 z m z m z m Z m 3 Of 2 Q� C� n� Z a� K n� a� a� c� a� a� 0 W W W W J W W W w W w W W O 1 0 0 0 M O 0 0 0 0 0 0 0 00,000<00000000 ZQ Q Q Q Q U Q Q Q Q Q Q Q Q '0Z ?) 2i ZW3: Z Z Z Z Z Z z F" Z Z F W Z� W W W W W~ 0 = cn J J == J= Q Q Q Q Q= ❑ Q Q iT m Q Q W m V V;R CO WW> 0)i V r 0)i <F 0)i -t t ct m V' 2 N w 7> N M r r N M M OJ 0] N J } W Z z W z z w N J W Z 2 Q otS Q' J Q W W z W Q U) c 3 ww w U) 2~ c(} C7 ' Q J 06 � Q' 2 asg0Q W d o U)i < F O Q~ X X Z Z) Q 0 (n x M U- W a (D 0 _0 W F- W pwp Z w 0 Q_ Z z Z Q 0 O --� it w U' J Q Q 7 J 2 z O O w Y Z K U` 0= Y z Q U w a Q w J w Q w W Y W 0 C7 N 2 to 2 m Q R 2 2 Z Qf J❑ W O O O O O O ik O O O O O O O O O O O O O O O O O O O O O O O O O O O O ❑ M M M M M M M M M M M M M M M p_ v N a N v N a N v N v N a N v N v N a N v N a N v N a N N M N M N M N M N M N M N M N M N M N M N M N M N M N M m�m�mmmm�mmmmm a 0 List of Assessed Properties Exhibit 6 K c E N V Q � — m (0 N C O LL N Z v > A Q y r � 0 �a R C � O F U t w 3 N O c d d O o OZ N C - L Q O W r Q o T w n N C% List of Assessed Properties Exhibit 6 0) 0) 0) 0 0) 0 0 W 0 O 0 0 0 W 0 0 01 0 0 W 0),C) 0) 0) (0 r C r r r r r r r r r r r r r r r r r r r r r r r r 01 d 0 O O (D (O O O (0 (O O O (o t0 (O f0 (O O (0 (O f0 N (0 O O O co O (0 O O O O O (0 O O O co co O O O w O O O O O G (0 w NO � � tfi (A In Ln 10 (A N (q L!) � i[J l(1 ([1 � M. ll') N (L1 (A LO In In N � N Q V) w V) V) 0 V) w V) V) fA V) V) V) 69 V) V) V) V) V) 69 V) V) V) V) f9 0 0 0 0 0 0 0 0 0 0 0 0 0 0 f 0 0 0 0 0 0 0 0 0 C 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 G 9 0 0 0 0 0 0 . 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O r r t-- r r r r r r r r r r r r r r r r r r r r r ro N (o m m (o (o (o (o m co (o (o (o m m co ro m m m cfl (0 (o (o m ,op' W N W (3 Q fA V3 f9 fA E9 fA V) V3 EA fA E9 E9 V) V) EA fA (A V) (9 EA f9 E9 69 V) (9 N 'C N 7 }�T v a v v v v v v v v v v v v v v v v v v v v v v U 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 L M Y] M 1A M lA m to m 1!) 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LL 2 2 a a Ja J U Q� 2 LL O Y U 2 a Z 2~ 2 J Y Z Z❑ a Y W z N 0 0 0 (.7 Z (n ❑ tt] } W p S F U co 2a N N 2 O z Z Z Q Y z x O❑ 7 (On W > a m� 2 N Z a Y❑ W z 2 J J 7 x J J W W H 0 D U H 2 O} (C W J Q C9 (9 N Q❑ W w a Y U a2 J w D U D U O F❑ w z Q z D m a 2 Y ❑ U a w U `1 O' U<) 2 2 m m (A a W Q (n Y S N 2 N N 3 0 2 m m w 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 # 0 M 0 M 0 M 0 M 0 M 0 m 0 M O M O M O M O M O M O M O M O M O M O M O M O m O M O M O m O M O M d N N N N N N N N N N N N N N N N N N N N N N N N N M N m N m N M N M N M N M N M N M N m N M N M N M N M N M N M N M N m N m N m N M N M N M N M F List of Assessed Properties Exhibit 6 q4, TT Y j0 F )OVE. 1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755 -5100 FAX (763) 755 -8923 • WWW.CI.ANDOVER.MN.US TO: Mayor and Council Members CC: Jim Dickinson, City Administrato FROM: David D. Berkowitz, Director of Public-Works/City Engineer SUBJECT: Receive Assessment Roll/Waive Public Hearing/Adopt Assessment Roll/12- 32/2118 -2120 —140th Lane NW/WM - Engineering DATE: October 2, 2012 INTRODUCTION This item is in regard to waiving the public hearing and adopting the assessment roll for 2118- 2120 —140th Lane NW for water main, Project 12 -32. DISCUSSION The City Council at the September 18, 2012 meeting approved a resolution declaring the cost and ordering assessment roll. This item is the last step as required by law to be able to levy the assessment to the property. BUDGET IMPACT The $5,224.16 will be assessed to 2118 & 2120 —140th Lane NW over a 5 year period. ACTION REQUIRED The City Council is requested to approve the resolution waiving the public hearing and adopting the assessment roll for the improvement of water main for 2118 -2120 — 1401h Lane NW, Project 12 -32. Respectfully submitted, David D. Berkowitz Attachments: Resolution, Assessment Roll & Waiver cc: Lisa Johnson (sent by email) Michelle Hartner, Deputy City Clerk CITY OF ANDOVER COUNTY OF ANOKA STATE OF MINNESOTA RES. NO. MOTION by Councilmember to adopt the following: A RESOLUTION ADOPTING THE ASSESSMENT ROLL FOR THE IMPROVEMENT OF WATER MAIN IN THE FOLLOWING AREA OF 2118- 2120- 140TH LANE NW, PROJECT 12 -32. WHEREAS, the property owner has waived their right to a public hearing. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ANDOVER, MINNESOTA: 1. Such proposed assessment, a copy of which is attached hereto and made part hereof, is hereby accepted and shall constitute the special assessment against the lands named therein, and each tract of land therein included is hereby found to be benefited by the proposed improvement in the amount of the assessment levied against it. 2. Such assessment shall be payable in equal annual installments, extending over a period of 5 years, the first of the installments to be payable on or before the 1 st Monday in January, 2013 and shall bear interest at a rate of 4.5 percent per annum from the date of the adoption of this assessment resolution. 3. The owner of any property so assessed may, at any time prior to certification of the assessment or the first installment thereof to the county auditor, pay the whole of the assessment on such property, with interest accrued to the date of payment, to the municipal treasurer, except that no interest shall be charged if the entire assessment is paid within 30 days from the adoption thereof; and, except as hereinafter provided, the owner may at any time prior to November 15 of any year, prepay to the treasurer of the municipality having levied said assessments, the whole assessment remaining due with interest accrued to December 31 of the year in which said prepayment is made. MOTION seconded by Councilmember and adopted by the City Council at a regular meeting this 2"d day of October 2012 , with Councilmembers voting in favor of the resolution, and Councilmembers voting against, whereupon said resolution was declared passed. CITY OF ANDOVER ATTEST: Michael R. Gamache - Mayor Michelle Hartner — Deputy City Clerk f$ 2 0 \ \ F- ® I � »A 2 k G k k \ 2 - - /m ) a ) k § N /� e _ §\ $ LO N® ° CD /� ° 02 q / \ ( / _ � $$ q Q \\ § A S4 e C2 )$ 0 a� \ - G § \ } / ) % ¥ e C � � C a \ �? §2 °f ®% \\ \6 7° J7 § § /0 8 b U CL §b £ o - �0 » k \� §� § §§ ? <§ / . < 2 - b2 @ §� z 2 § § R / % \ k 2 Lo Cm r § § N \ E 0 / L _ 04 N co / § k - - / 0 E LU ��\ ca E5. )wa § § tea_ 246] E _ z f$ 2 0 \ \ F- ® I � »A 2 k G k k \ 2 - - /m ) a ) k § N /� e _ §\ $ LO N® ° CD /� ° 02 q / \ ( / _ � $$ q Q \\ § A S4 e C2 )$ 0 a� \ - G § \ } / ) % ¥ e C � � C a I� -3a August 15, 2012 Andover City Engineer 1685 Crosstown Boulevard NW Andover, MN 55304 Re: Municipal Improvements Dear City Engineer: We do hereby petition for improvements of watermain sanitary sewer, storm sewer and streets (circle one or more) with the costs of the improvement to be assessed against my benefiting property. Said petition is unanimous and the public hearing may be waived. We would like to be assessed over a 5 -year period. Sincerely, L/isalhnson Phone 612 -369 -5535 Property Address: 2118/2120 1401h Lane NW Andover, MN 55304 CADOCUME -1\ Owner\ LOCALS-- 1 \TEMPOR- 1 \Content.IERY51HPO PETITION SINGLE.doc (D NNDOV.E: 1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755 -5100 FAX (763) 755 -8923 • WWW.AN DOVE RMN.GOV TO: Mayor and Council Members CC: Jim Dickinson, City Administratory / FROM: David D. Berkowitz, Director of Public rks /City Engineer SUBJECT: Approve Resolution/Request Anoka County to Conduct Speed Study - Andover Blvd. NW from Hanson Blvd. NW to Railroad Tracks - Engineering DATE: October 2, 2012 INTRODUCTION This item is in regard to approving a resolution requesting a speed study along Andover Boulevard NW (County Road 16) from Hanson Boulevard NW to Railroad Tracks. DISCUSSION At the September City Council Workshop there was a discussion to have a speed study done along this segment of Andover Boulevard NW due to the recent accidents at Andover Boulevard and Bluebird Street NW. If this item is approved by the City Council staff will forward the resolution to the County of Anoka for consideration since Andover Boulevard NW is a County road. ACTION REQUIRED The City Council is requested to approve the resolution requesting a speed study on Andover Boulevard NW (County Road 16) from Hanson Boulevard NW to the Railroad tracks. Respectfully submitted, David D. Berkowitz Attachment: Resolution's CITY OF ANDOVER COUNTY OF ANOKA STATE OF MINNESOTA RES. NO. A RESOLUTION REQUESTING A SPEED STUDY ALONG ANDOVER BOULEVARD NW BETWEEN HANSON BOULEVARD NW & THE RAILROAD TRACKS, SECTION 26, TOWNSHIP 32, RANGE 24 IN THE CITY OF ANDOVER. WHEREAS, the County of Anoka is requested to request the Minnesota Department of Transportation to do a speed study, and; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Andover to hereby request the County of Anoka to request a study with MNDOT along Andover Boulevard NW between Hanson Boulevard NW & the Railroad Tracks. Adopted by the City Council of the City of Andover this 2nd day of October , 2012. ATTEST: Michelle Hartner— Deputy City Clerk CITY OF ANDOVER Michael R. Gamache - Mayor 1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755 -5100 FAX (763) 755 -8923 • WWW.ANDOVERMN.GOV TO: Mayor and City Council CC: Jim Dickinson, City Administrator FROM: Michelle Hartner, Deputy City Clerk SUBJECT: Adopt Resolution Appointing Election Judges for General Election DATE: October 2, 2012 INTRODUCTION The City Council is required to appoint judges to serve at the General Election on Tuesday, November 6, 2012. ACTION REQUIRED ( D Council is requested to adopt the attached resolution appointing judges for the General Election. Respectfully submitted, Michelle Hartner Deputy City Clerk Attach: Resolution CITY OF ANDOVER COUNTY OF ANOKA STATE OF MINNESOTA RESOLUTION NO. A RESOLUTION APPOINTING JUDGES TO SERVE AT THE NOVEMBER 6, 2012 GENERAL ELECTION IN THE CITY OF ANDOVER. WHEREAS, the City Council is required by State Statute to appoint election judges to serve at the November 6, 2012 General Election. WHEREAS, the City Council will allow the City Clerk to appoint substitution election judges if necessary. NOW, THEREFORE, BE IT RESOLVED that the following are appointed to serve as election judges as listed on Attachment A at the November 6, 2012 General Election. Adopted by the City Council of the City of Andover this 2nd day of October, 2012. Attest: Michelle Hartner- Deputy City Clerk CITY OF ANDOVER Michael R. Gamache — Mayor Attachment A Judge Board Report, 2012 Presidential General Election, Tuesday, November 6, 2012 Andover P -1 Hope Lutheran Church, 16180 Round Lake Blvd NW, Andover, MN 55304 Gloria Young, Head Judge Donna Turnbom, Assistant Head Judge Dean Arneson, Election Judge Sharon Cramer, Election Judge Brenda Ferguson, Election Judge Karen Godfrey, Election Judge Janna Goodrich, Election Judge Andy Lantos, Election Judge Carol Moeller, Election Judge Signe Renshaw, Election Judge Michael Schilling, Election Judge Richard Snyder, Election Judge Andover P -10 Andover Elementary School, 14950 Hanson Blvd NW, Andover, MN 55304 Nicole Mason, Head Judge Stanley Deden, Assistant Head Judge Sheila Bauer, Election Judge William Bonin, Election Judge Linda Kent, Election Judge Bradly Moll, Election Judge Linda Nelson, Election Judge Mike Roslin, Election Judge Mary Ellen Simcoe, Election Judge Diane Terebenet, Election Judge Kris Vogel, Election Judge Andover P -2 Grace Lutheran Church, 13655 Round Lake Blvd NW, Andover, MN 55304 Gretchen Sabel, Head Judge Susan Christofferson, Assistant Head Judge Nancy Ahlberg, Election Judge Linda Evavold, Election Judge Frances Gargano, Election Judge Lisa Jagerson, Election Judge Sandy Johnson, Election Judge Marie Romo, Election Judge Donna Ruud, Election Judge Pamela Schilling, Election Judge Jo Zillhardt, Election Judge Andover P -3 Riverdale Assembly of God Church, 3210 Bunker Lake Blvd NW, Andover, MN 55304 Phyllis Kieffer, Head Judge Michael St. John, Assistant Head Judge Elaine Boos, Election Judge Sherry Campbell, Election Judge Michael Casey, Election Judge Carole Hibbard, Election Judge John King, Election Judge Sue McBride, Election Judge Barbara Peters, Election Judge Janice Quick, Election Judge Printed: 912612012 8:53 AM Page 1 of 3 Judge Board Report, 2012 Presidential Christine Schonning, Election Judge Leon Tibben, Election Judge Andover P -4 Crooked Lake Elementary School, 2939 Bunker Lake Blvd NW, Andover, MN 55304 Kelly Danz[, Head Judge Luther Romo, Assistant Head Judge Don Ahlberg, Election Judge John Catherson, Election Judge Barbara Collette, Election Judge Stan Graf, Election Judge John Hibbard, Election Judge Virginia (Ginger) Nelson, Election Judge Liliya Ustimchuk, Election Judge Terry Van Note, Election Judge Michelle Winship, Election Judge Alanna Xiong, Student Judge Andover P -5 Andover Christian Church, 16045 Nightingale ST NW, Andover, MN 55304 Angel Bourque, Head Judge Margaret Kennedy, Assistant Head Judge Shelby Holubiw, Election Judge Michele Koester, Election Judge Denise McNeff, Election Judge Mary Mead, Election Judge Sharon Saxon, Election Judge Tricia Shannon, Election Judge John Stong, Election Judge Jennifer Trenda, Election Judge Suzanne Van Hecke, Election Judge Andover P -6 Prairie Oak Community Church, 1657 161stAve NW, Andover, MN 55304 Gary Horning, Head Judge Bruce Crane, Assistant Head Judge Barry Cenaiko, Election Judge Susan Fanucci, Election Judge Barbara Humphreys, Election Judge Dolores Jeska, Election Judge Peggy Kuntz, Election Judge Rana Mattson, Election Judge William (Bill) Obedoza, Election Judge Nancy Posl, Election Judge Lucy Schalwig, Election Judge Andover P -7 Andover Community Center (P -7), 15200 Hanson Blvd NW, Andover, MN 55304 Lois Spadgenske, Head Judge John Wolf, Assistant Head Judge Richard Lindmark Jr, Election Judge Pat Maltzen, Election Judge Patricia Matlon, Election Judge Larry Mueller, Election Judge Norman Myhre, Election Judge Lisa Nicoski, Election Judge Suzanne Peach, Election Judge Laura Sargent, Election Judge Printed: 912612012 8:53 AM Page 2 of 3 Judge Board Report, 2012 Presidential Andover P -8 Andover Community Center (P -8), 15200 Hanson Boulevard, Andover, MN 55304 Bruce Maltzen, Head Judge Martha Burckhardt, Assistant Head Judge Shirley Beam, Election Judge Richard Cords, Election Judge Rene Ferrazzi, Election Judge Kari Jordan, Election Judge Jan Klinsing, Election Judge Pat Larson, Election Judge Steven Loahr, Election Judge Jody Rieck, Election Judge Mary White, Election Judge Cynthia Wilhelm, Election Judge Andover P -9 Bunker Hills Activity Center, 550 Bunker Lake Blvd NW, Andover, MN 55304 Carol Murschel, Head Judge Dan Lehrer, Assistant Head Judge Susan Beal, Election Judge Brenda Clausen, Election Judge Janice Fuerst, Election Judge Cynthia Ingelin, Election Judge Ralph Kieffer, Election Judge Judy Lestina, Election Judge Sandy Roslin, Election Judge Marian Smith, Election Judge Susan Steel, Election Judge Printed: 912612012 8:53 AM Page 3 of 3 A C I T Y 0 F A 1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755 -5100 FAX (763) 755 -8923 • WWW.CI.ANDOVER.MN.US TO: Mayor and Councilmembers CC: Jim Dickinson, City Administrator / Finance FROM: Lee Brezinka, Assistant Finance Director SUBJECT: Declare Costs, Order Assessment Roll and Schedule Public Hearing for 2012 Delinquent Utility Service Charges, Mowing Fees, Tree Removal, False Alarm Fines and Miscellaneous Abatement Fees DATE: October 2, 2012 INTRODUCTION City Code Chapter 3, 10 -3 -31); City Code Chapter 1, 10 -1 -9F; and City Code Chapter 5, 8 -5 -3D provide for the collection by assessment of unpaid sewer, water, storm sewer, street lighting service charges, mowing fees, tree removal, false alarm fines and miscellaneous abatement fees. The assessment procedures directed by state statute 429 are being followed in preparing notice of and preparation for a public hearing to act upon the proposed assessment. DISCUSSION The total delinquent utility service charges were $62,462.00 as of September 20, 2012 when written notification to the property owners and preparation of the preliminary assessment worksheets began. Payments received prior to the proposed hearing date of the first regularly scheduled council meeting in November 2012, will be applied to the customers' accounts to reduce or remove the proposed assessments from the preliminary roll. Delinquent balances as of November 9, 2012 are charged an administrative fee of 15% and will carry an 8% interest rate when certified to Anoka County for collection with the 2013 taxes. The list of delinquent accounts is available for viewing in the Finance Department and Finance will be sending letters to all applicable property owners explaining the assessment process and how and where to make payment to avoid being assessed. The proposed hearing date will be the first regularly scheduled council meeting in November 2012. BUDGET IMPACT This request will assist in reducing outstanding receivables for the City. Mayor and Council Members October 2, 2012 Page 2 of 2 ACTION REQUESTED The Andover City Council is requested to approve the attached resolution declaring costs and ordering the assessment roll for the purpose of certifying the delinquent sewer, water, storm sewer, street lighting service charges, mowing fees, tree removal, false alarm fines and miscellaneous abatement fees. The Andover City Council is also requested to approve the attached resolution scheduling a public hearing for the purpose of certifying the delinquent sewer, water, storm sewer, street lighting service charges, mowing fees, tree removal, false alarm fines and miscellaneous abatement fees. Respectfully submitted, Lee Brezinka Attachments: Resolution Declaring Cost and Directing Preparation of Assessment Roll Resolution for Hearing on Proposed Assessment of Delinquent Utility Charges, Mowing Fees, Tree Removal, False Alarm Fines and Miscellaneous Abatement Fees. CITY OF ANDOVER COUNTY OF ANOKA STATE OF MINNESOTA RES. NO. MOTION by Councilmember to adopt the following: A RESOLUTION DECLARING COST, DIRECTING PREPARATION OF ASSESSMENT ROLL AND SCHEDULING PUBLIC HEARING FOR THE CERTIFICATION OF DELINQUENT UTILITY SERVICES CHARGES, MOWING FEES, TREE REMOVAL, FALSE ALARM FINES AND MISCELLANEOUS ABATEMENT FEES THE CITY COUNCIL OF THE CITY OF ANDOVER HEREBY RESOLVES: WHEREAS, delinquent utility service charges, mowing fees, tree removal, false alarm fines and miscellaneous abatement fees in the amount of $62,462.00 exist as of September 20, 2012; and WHEREAS, City Code Chapter 3, 10 -3 -31); City Code Chapter 1, 10 -1 -917; and City Code Chapter 5, 8 -5 -31) provide for the collection by assessment of unpaid water, sewer, storm sewer, street light service charges, mowing fees, tree removal, false alarm fines and miscellaneous abatement fees respectively. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ANDOVER, MINNESOTA: 1. The amount of the cost to be assessed against benefited property owners is declared to be $62,462.00 plus an administrative fee of 15 %. 2. Assessment shall be payable in equal annual installments extending over a period of 1 year. The first of the installments to be payable on or before the first Monday in January 2013, and shall bear interest at the rate of 8 percent per annum from the date of the adoption of the assessment resolution. 3. The City Clerk, with the assistance of the Finance Director shall forthwith calculate the proper amount to be assessed against every assessable lot, piece or parcel of land, without regard to cash valuation, as provided by law, and the Clerk shall file a copy of such proposed assessment in the Clerk's office for public inspection. 1. The Clerk shall, upon the completion of such proposed assessment, notify the Council thereof. BE IT FURTHER RESOLVED BY THE CITY COUNCIL; 1. A hearing shall be held the 7th day of November, 2012 at the Andover City Hall at 7:00 P.M. to pass upon such proposed assessment and at such time and place all persons affected by such proposed assessment will be given an opportunity to be heard with reference to such assessment. 2. The City Clerk is hereby directed to cause a notice of hearing on the proposed assessment to be published once in the official newspaper at least two weeks prior to the hearing. 3. The owner of any property so assessed may at any time prior to certification of the assessment to the County Auditor, pay the whole assessment with no interest. MOTION seconded by Councilmember and adopted by the City Council at a regular meeting this 2nd day of October, 2012, with Councilmembers voting in favor of the resolution, and Councilmembers voting against, whereupon said resolution was declared passed. CITY OF ANDOVER ATTEST: Michael R. Gamache - Mayor Michelle Hartner — Deputy City Clerk CITY OF ANDOVER COUNTY OF ANOKA STATE OF MINNESOTA NOTICE IS HEREBY GIVEN that the City Council of the City of Andover, Anoka County, Minnesota will meet at Andover City Hall, 1685 Crosstown Boulevard NW, Andover, Minnesota on November 7, 2012 at 7:00 PM to pass upon the proposed assessment for the improvement of delinquent sewer, water, storm water utility, street light charges, mowing fees, tree removal, false alarm fines and miscellaneous abatement fees in the City of Andover. The proposed assessment roll is on file for public inspection at the City Clerk's office. The total amount of the proposed assessment roll is $62,462.00. Written or oral objections will be considered at the meeting. No appeal may be taken as to the amount unless a signed, written objection is filed with the Clerk prior to the hearing or presented to the presiding officer at the hearing. The Council may upon such notice consider any objection to the amount of a proposed individual assessment at an adjourned meeting upon such further notice to the affected property owner, as it deems advisable. An owner may appeal an assessment to the District Court pursuant to Minnesota Statutes Section 429.081 by serving notice of the appeal upon the Mayor or Clerk of the city within 30 days after adoption of the assessment and filing such notice with the District Court within ten days after service upon the Mayor or Clerk. BY ORDER OF THE CITY COUNCIL CITY OF ANDOVER Michelle Hartner, Deputy City Clerk • 1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755 -5100 FAX (763) 755 -8923 • WWW.CI.ANDOVER.MN.US TO: CC: FROM: SUBJECT: DATE: Mayor and Councilmembers Jim Dickinson, City Administrator / Finance Lee Brezinka, Assistant Finance Director Approve Funds Transfer — 40 Acre Park Improvements October 2, 2012. INTRODUCTION In September 2012, the City Council approved the purchase of the 40 acre parcel along Tulip Street to be used as a future sporting complex. DISCUSSION With the recent purchase of the 40 acre parcel along Tulip Street, staff is looking to procure funding to begin phase I of the project. As noted in the proposed 2013 -2017 CIP, $800,000 is requested to begin phase I with funding coming from the Capital Equipment Reserve Capital Projects Fund ($600,000), donations ($100,000) and Parks Projects Levy ($100,000). This transfer request is to allocate $600,000 from the General Fund to the Capital Equipment Reserve CPF. The General Fund is able to allocate $600,000 due to revenues exceeding expenditures over the past few years. BUDGET IMPACT This transfer will facilitate phase I of the improvements at the 40 acre park. ACTION REQUESTED The Andover City Council is requested to approve the aforementioned transfer. Respectfully submitted, / ?,f-,O � Lee Brezinka Attachment: 2013 -2017 CIP Proposed Project Sheet Capital Plan City of Andover, MN Project # 13- 45001 -02 Project name 40 Acre Park Project - 3535 -161st Ave NW 2013 thru 2017 Type Improvement Department Park & Rec - Projects Useful Life 20 Years Contact Asst.Pubhc Works Director Category Improvements Priority 1 -High Description Construct a new sporting complex that will provide irrigated game and practice fields for soccer, football and lacrosse, in addition to, providing adequate parking. The land was purchased in 2012 with site preparation beginning in 2013. *Dedicating $50,000 of the $61,500 property tax levy for years 2013 and 2014, for a total tax levy of $100,000. No park dedication revenues will be used to fund this Droiect. Justification due to the growth of soccer, football and lacrosse; additional fields are necessary to keep up with demand so that the existing fields are not overused and provides additional rest time. Expenditures 2013 2014 2015 2016 2017 Total Improvement 800,000 800,000 Total 800,000 800,000 Funding Sources 2013 2014, 2015 2016 2017 Total Capital Equipment Reserve 600,000 600,000 Donations 100,000 100,000 Parks Projects Levy 100,000 100,000 Total 800,000 800,000 complex will put additional burdens on existing park staff and budgets. 1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755 -5100 FAX (763) 755 -8923 • WWW.CI.ANDOVER.MN.US TO: Mayor and Councilmembers r CC: Jim Dickinson, City Administrator FROM: Erick Sutherland — Recreational Facility Manager SUBJECT: Approve Sub -Lease — Subway LLC DATE: October 2, 2012 INTRODUCTION 0 This item is in regards to approving a sub -lease with Subway LLC. This sub -lease will allow Subway LLC to operate out of the existing concessions area and better utilize the space at the Andover Community Center. I feel Subway's commitment to and promotion of healthy eating will be a great fit for the Andover Community Center and YMCA. As previously referenced to at City Council workshops and through staff updates, Subway has expressed interest in operating a store out of the Andover Community Center. After discussion with the ACC Advisory Commission and the YMCA a lease agreement was drawn up. The sub -lease has been reviewed by both Administration and the City Attorney. The terms of the 3 year lease include a monthly payment of $850.00 or 7% of gross revenue, whichever is greater. Included in the lease is the concessions area along with some existing equipment. The city will be responsible for the cost of utilities and garbage removal. Subway will be responsible for any changes that are made to the space along with equipment upkeep, maintenance and replacement. BUDGET IMPACT The Subway sub -lease is structured in a way that the City will be looking for positive income with the opportunity to increase the revenue to numbers that have not been achieved to date. ACTION REQUESTED Approve the attached sub -lease with Subway LLC. Respectively submitted, Erick Sutherland Attachments: Sub -Lease Agreement SUB -LEASE BETWEEN CITY OF ANDOVER AS LANDLORD, SUB WAY REAL ESTATE, LL AS TENANT LOCATION: 15200 Hanson Boulevard NW Andover, MN 55304 INDEX SECTION 1 Description of Premises 2 Term 3 Quiet Enjoyment 4 Rent 5 Real Estate Taxes 6 Use of Premises 7 Utilities 8 Repairs & Maintenance 9 Hazardous Substances 10 Surrender of Premises 11 Damage or Destruction of Premises 12 Non - Liability of Landlord for Damages 13 Fire Insurance 14 Liability Insurance 15 Assignment, Sublease, or License 16 Improvements or Additions by Tenant 17 Restrictions Against Mechanic's Liens 18 Signs 19 Parking 20 Holding Over 21 Notices 22 Default 23 Tenant's Remedies on Default 24 Licenses /Alterations 25 Landlord to Have Access 26 Renewal Terms 27 Limitation of Liability of Persons and Entities Affiliated with Tenant 28 Entire Agreement 29 Competition 30 Recording 31 Waiver 32 Law 33 Headings 34 Litigation 35 Severability 36 Force Majeure 37 Lease Execution 38 Cancellation 39 Construction 40 When Lease Becomes Binding 41 Timeliness of Charges 42 Counterparts And Electronic Execution Exhibit A Landlord's Work Exhibit C Letter of Possession Exhibit B Warranty Deed LEASE This lease (hereinafter "Lease ") made and entered into this day of 2012, by and between THE CITY OF ANDOVER, hereinafter referred to as "Landlord," and SUBWAY REAL ESTATE, LLC, a limited liability company, organized under the laws of Delaware and having its usual place of business at 325 Bic Drive, Milford, Connecticut 06461, hereinafter referred to as "Tenant." Inconsideration of the mutual covenants herein contained, the parties agree as follows: Definitions The following terms when used hereinafter shall be defined as follows: "Building" means the structure or portions of a structure located at 15200 Hanson Boulevard, Andover, MN 55304. "Premises" means a portion of Landlord's Building leased to Tenant as described herein and as further set forth in Exhibit A attached hereto and made a part hereof. For the purpose of this Agreement, the term(s) "Lease" shall be deemed to be "Sublease." Further, the term(s) "Tenant" and "Landlord" shall be deemed to be "Subtenant" and "Sublandlord," respectively.SECTION ONE DESCRIPTION OF PREMISES Landlord leases to Tenant and Tenant leases from Landlord the Premises which contains approximately 672 square feet. The square footage of the Premises is based upon the measurement from the face of the exterior walls and the centerline of the interior walls, with deduction for columns, walls or other structural or non - structural components. In the event that the actual square footage of the Premises are larger or smaller than specified herein, the terms and conditions shall remain the same. In addition to the Premises, Tenant shall have available for its use that equipment set forth in Exhibit B attached hereto and made a part hereof. SECTION TWO TERM The term of this Lease is three (3) years. This Lease and all of its corresponding rights and obligations other than the payment of Rent shall commence upon the effective date of this Lease ( "Lease Commencement Date "). The parties herein agree that, subject to the execution of this Lease, Tenant shall be entitled to the use and possession of the Premises for the purposes of a Subway Sandwich Shop. The parties further understand and agree that Tenant shall undertake certain construction to ready the Premises for its intended use as a Subway Sandwich Shop. Prior to the commencement of any construction, Tenant shall provide landlord with detailed plans and a timeline relative to the work to be performed and the alterations to be made to the Premises, which Landlord shall have the right to approve in its sole discretion. Tenant agrees that any such construction shall not interfere with Landlord's use of the Building. If the Premises are not available for occupancy by Tenant within three (3) months of the final execution of this Lease, due to the fault of Landlord, Tenant shall have the option of terminating this Lease by giving Landlord written notice. In the event Tenant chooses to terminate this Lease, Landlord agrees to execute documents related thereto and to promptly return any and all monies paid by Tenant. Upon Tenant taking occupancy of the Premises, the parties shall execute a Letter of Possession in substantial conformity with Exhibit C attached hereto. Prior to the commencement of Tenant's construction, the parties agree that in the event Tenant's sublessee is unable to secure financing to construct the premises as a Subway Sandwich Shop, Tenant may terminate this lease upon written notice to Landlord without any penalty or cost. Upon receipt of the notice, Landlord. agrees to immediately return any security deposits and prepaid rents to Tenant. SECTION THREE QUIET ENJOYMENT Landlord covenants, warrants and represents that upon commencement of the Lease term, Landlord has full right and power to execute and perform this Lease, and to grant the estate demised herein; and that Tenant, upon the payment of the rent herein reserved and performance of the covenants and agreements hereof, shall peaceably and quietly have, hold and enjoy the Premises and all rights, easements, covenants, and privileges belonging or in any way appertaining thereto, during the term of this Lease. SECTION FOUR RENT For the first year of the term, the Rent for the Premises shall be the greater of seven percent (7 %) of Gross Sales or $850.00 per month. Rent for the second year of the term shall be the greater of seven percent (7 %) of Gross Sales or $900.00 per month. Rent for the third year of the term shall be the greater of seven percent (7 %) of Gross Sales or $950.00 per month. Gross Sales are calculated excluding sales tax. Tenant shall provide monthly sales reports within five (5) days following the end of each month and pay the rent before the fifteenth (15th) of each month. Landlord agrees that Gross Sales for the purpose of the calculation of Rent shall not include the purchase price for Subway Gift Cards. The Subway POS system will produce a report showing Gross Sales excluding the sale of Subway Gift Cards. The Rent shall commence when Tenant opens for business ( "Rent Commencement Date "). SECTION FIVE REAL ESTATE TAXES Tenant shall pay on or before May 15 and October 15 of each year, any and all real estate taxes attributable to Tenant's use of the Premises which will be payable by Landlord in the following year. Landlord shall submit an estimate to Tenant and Tenant shall pay the estimated amounts. Any difference from actual taxes payable shall be adjusted in cash when actual taxes are known. SECTION SIX USE OF PREMISES Tenant's use shall be defined as a restaurant for on and off premises consumption or for any other lawful purpose. Landlord acknowledges that Tenant's menu consists primarily of sandwiches wraps, salads and related items and that from time to time Tenant may add test items to its menu. Landlord further agrees that Tenant may add, delete and/or change its menu without the prior consent of the Landlord provided that Tenant complies with all local codes and ordinances, and that the Landlord has no preexisting agreements prohibiting such menu additions. Tenant may sell fruit smoothies and/or yogurt. In no event shall Tenant's menu be construed as limited to sandwiches and salads. Tenant's use of the Premises shall coincide with the days and times the Building is otherwise open to the public. Landlord acknowledges that the normal operation of Tenant's business will create certain aromas including but not limited to the aroma of baking bread. Tenant shall be included in all opportunities to solicit all banquet facility catering events. Tenant shall be included in all opportunities to solicit all events held in the party center and any other non - banquet facility in -house events. Tenant will invoice the City on the 15` of the month for Subway catering sales sold and provided at the Andover Community Center. All invoices from the Tenant to the city will be paid to the Tenant in full no later than ten (10) days after submitted. SECTION SEVEN UTILITIES Landlord shall provide at no cost to Tenant all utilities phone and internet services associated with the operation of the Subway in the Andover Community Center. Landlord shall be responsible for any and all tap fees, hook up fees, connection fees, impact fees (if any) necessary for Tenant's utilities. Landlord will provide at no cost to the Tenant trash removal and recycling services. SECTION EIGHT REPAIRS AND MAINTENANCE Landlord shall, at its expense, maintain the exterior of the Building, including the roof, walls, foundations, walks, driveways, parking areas, and the structural portion of the Premises in good condition and repair, except when damaged by Tenant. Such maintenance shall include, but not be limited to the removal of snow and/or ice. In addition, Landlord warrants that the Premises, including the heating and air conditioning systems, plumbing, sprinklers, hot water heater, and electrical systems will be in compliance with all building codes, in good working order, and that the roof will be free of leaks for the term of this Lease. Tenant shall, at its expense, maintain in good condition, the doors and interior of the Premises, including electrical wiring and fixtures, plumbing, heating, and air conditioning equipment presently in place or added by Tenant or Landlord except when such damage is caused by Landlord, its agents or employees. Landlord hereby agrees that Landlord shall, at Landlord's expense be responsible for the replacement of heating, ventilating and air conditioning "HVAC" system if and when necessary. Further, Landlord represents and warrants to Tenant that the Premises and the Building are in compliance with all applicable federal, state, county and municipal building codes, laws and regulations including the Americans with Disabilities Act of 1990 and any revisions made thereunder, including but not limited to, any Standards and Regulations as they may change from time to time. Landlord agrees to indemnify Tenant for any damages ensuing from any claims or lawsuits brought by any person, entity or attorney general for violation of any such code, law or regulation. Any alterations required to bring the Premises or the Building into compliance with any such code, law or regulation shall be Landlord's sole expense and responsibility, and any charges incurred by Landlord shall not be charged back to Tenant. If Landlord shall fail, refuse or neglect to comply with Landlord's obligations in accordance with the terms of this Lease, or if Tenant is required to make any repairs by reason of any act, omission or negligence of Landlord or its employees or agents, Tenant shall have the right, at its option, to make such repairs on the behalf of and for the account of Landlord and deduct the cost and expense thereof from the next installment(s) of rent due. SECTION NINE HAZARDOUS SUBSTANCES Landlord warrants and represents that, to the best of its knowledge, any use, storage, treatment or transportation of Hazardous Substances which has occurred in, on, or under the Premises and the Building prior to the date of execution of this Lease has been in compliance with all applicable environmental laws. "Hazardous Substances" shall mean pollutants, contaminants, toxic or hazardous waste, or any other substances, the removal of which is required or the use of which is restricted, prohibited or penalized by any environmental law. "Environmental Law" shall mean any applicable present and future federal, state or local law, ordinance or other statute of a governmental or quasi - governmental authority relating to pollution or protection of the environment, and any regulation or policy promulgated or issued thereunder. Landlord additionally warrants and represents that, to the best of its knowledge, no release, leak, discharge, spill, disposal or emission of Hazardous Substances has occurred in, on or under the Premises or the Building, and that the Premises and the Building are free of Hazardous Substances as of the date of the execution of this Lease, except for Hazardous Substances contained in products used by Landlord or Tenants in de minimis quantities for ordinary cleaning and office purposes properly stored in a manner and location meeting all Environmental Laws. Landlord hereby agrees, represents and warrants that (i) no activity will be conducted in the Building by Landlord and/or its agents, employees or contractors that will produce any Hazardous Substance, except for such activities that are a part of the ordinary course of Landlord's business activities (the "Permitted Activities ") provided said Permitted Activities are conducted in accordance with all Environmental Laws; Landlord shall be responsible for obtaining any required permits and paying any fees and providing any testing required by any governmental agency; (ii) the Building will not be used by Landlord and/or its agents, employees or contractors in any manner for the storage of Hazardous Substances except for the temporary storage of such materials that are used in the ordinary course of Landlord's business (the "Permitted Materials ") provided such Permitted Materials are properly stored in a manner and location meeting all Environmental Laws; Landlord shall be responsible for obtaining any required permits and paying and fees and providing any testing by any governmental agency; (iii) no portion of the Building will be used as a landfill or a dump; (iv) Landlord will not install any underground tanks of any type in, on or under the Building; (v) Landlord will not allow any surface or subsurface conditions in the Building to exist or come into existence that constitute, or with the passage of time may constitute a public or private nuisance; (vi) Landlord will not knowingly permit any Hazardous Substances to be brought onto the Premises or the Building, except for the Permitted Materials described above, and if so brought or found located thereon, the same shall be immediately removed, with proper disposal, and all required cleanup procedures shall be diligently undertaken pursuant to all Environmental Laws; and (vii) to the best of Landlord's knowledge and belief. (a) Landlord has duly complied with and Landlord and the Building are presently in compliance with all Environmental Laws, and; (b) Landlord has received no notice respecting, nor does it otherwise know,of nor suspect, any fact which might constitute a violation of any Environmental Law. Landlord agrees to indemnify, defend and hold harmless Tenant from any and all claims, damages, fines, judgments, penalties, costs, liabilities or losses (including any and all sums paid for settlement of claims, attorneys' fees, consultants' and experts' fees) arising during or after the term of this Lease from or in connection with the breach of the foregoing representations and warranties by Landlord or the presence or suspected presence in the past, or during or after the term of this Lease, of Hazardous Substances in, on, or under the Premises and the Building unless the Hazardous Substances are present solely as a result of negligence, willful misconduct or other acts of Tenant, Tenant's agents, employees or contractors. Without limitation of the foregoing, this indemnification includes all costs incurred due to any investigation of the site or any cleanup, removal or restoration mandated by a federal, state or local agency or political subdivision, unless the Hazardous Substances are present solely as a result of negligence, willful misconduct or other acts of Tenant, Tenant's agents, employees, contractors. This indemnification specifically includes all costs due to Hazardous Substances which flow, diffuse, migrate or percolate into, onto or under the Premises or the Building. Tenant will not cause or permit any Hazardous Substance to be used, stored, generated or disposed of on or in the Premises by Tenant, Tenant's agents, employees, contractors or invitees, without obtaining Landlord's prior written consent, except for Hazardous Substances contained in products used by Tenant or such other persons in de minimis quantities for ordinary cleaning and office purposes provided such materials are properly stored in a manner and location meeting all Environmental Laws. If Tenant breaches the foregoing representation and warranty, or if Hazardous Substances are used, stored, generated or disposed of on or in the Premises or the Building by such persons or if the Premises or the Building become contaminated in any manner for which the Tenant is legally liable, Tenant agrees to indemnify, defend and hold harmless Landlord from any and all claims, damages, fines, judgments, penalties, costs, liabilities or losses (including a decrease in value of the Premises, damages due to loss or restriction of rentable or usable space, or any damages due to adverse impact on marketing of the space, and any and all sums paid for settlement of claims, attorneys' fees, consultants' and experts' fees) arising during or after the term of this Lease and arising as a result of such contamination by Tenant or such other persons. Without limitation of the foregoing, this indemnification includes all costs incurred due to any investigation of the site or any cleanup, removal or restoration mandated by a federal, state or local agency or political subdivision. If Tenant causes or permits the presence of any Hazardous Substance in the Premises or the Building and such Hazardous Substances alone result in contamination, Tenant will promptly, at its sole expense, take all necessary actions to return the Premises or the Building to the condition existing prior to the contamination caused by the presence of any such Hazardous Substance on the Premises. Tenant must first obtain Landlord's approval and the approval of any necessary federal, state or local agencies for any such remedial action. The foregoing indemnification and responsibilities of Landlord and Tenant, respectively, shall survive the termination or expiration of this Lease. SECTION TEN SURRENDER OF PREMISES Tenant shall be permitted, within ten (10) days after the expiration or sooner termination of this Lease, to remove any additions or improvements made by it, provided, however, that it repairs any damage to the Premises caused by such removal or pays for any damages caused by such removal. Any such addition or improvement not removed within ten (10) days shall be deemed abandoned and shall, thereupon, become the property of Landlord without compensation to Tenant. If Tenant has made improvements to the Premises which, if removed, would cause significant damage to the Premises, then Tenant may, with Landlord's approval, choose to leave these improvements in place without incurring any liability for their removal by Landlord or a third party. Tenant's trade fixtures and all of Tenant's equipment shall not be considered fixtures, and shall remain the property of Tenant. As such, they may be removed by Tenant at any time, subject to the foregoing paragraph. On or before the expiration or earlier termination of this Lease, Tenant shall surrender to Landlord the leased premises and all of Tenant's alterations and fixtures broom clean, in good order and condition, excepting reasonable wear and tear. Tenant may remove those alterations or improvements to the leased premises which are installed by Tenant and which are trade fixtures which may be removed without material damage to the lease premises and which are in the nature of furniture, movable refrigeration, movable cooking equipment, storage and display cases, counter shelves and racks. Upon request of Landlord, Tenant shall remove such items. All other alterations and fixtures including, without limitation, those in the nature of ventilating, air conditioning, unmovable refrigeration, unmovable cooking equipment, plumbing, sprinkling systems, outlets, partitions, doors, vaults, paneling, molding or flooring shall be surrendered with the leased premises and Tenant need not remove them. SECTION ELEVEN DAMAGE OR DESTRUCTION OF PREMISES If the Premises are damaged or partially destroyed by fire, casualty or other cause during the term of this Lease or any extension thereof, not caused or contributed to by Tenant, Landlord shall promptly repair and restore them to the condition which Landlord furnished to Tenant upon the commencement of the term of this Lease. Landlord shall use its best efforts to repair the Premises within ninety (90) days of the date of the damage or destruction. If the repairs cannot be completed within ninety (90) days of the occurrence, then either party shall have the option to terminate this Lease as of the date of damage or destruction by ten (10) days written notice to the other party. If the Building or part thereof shall be damaged or destroyed and such damage or destruction shall materially interfere with the enjoyment of the Premises by Tenant, the Rent shall abate in proportion to such interference during the period of such interference. Landlord covenants and agrees, as a material inducement for Tenant entering into this Lease, to assure that a standard fire and extended coverage insurance policy in an amount sufficient to cover the full replacement cost of the Building is in effect during the term of this Lease or any renewal thereof. Landlord also covenants and agrees, as a material inducement for Tenant entering into this Lease, that any insurance proceeds shall be applied exclusively to the cost of repairing or rebuilding the Premises, unless the Lease is terminated pursuant to this section. SECTION TWELVE NON - LIABILITY OF LANDLORD FOR DAMAGES Landlord shall not be responsible for liability or damage claims for injury to persons or property for claims of any type that it may incur in connection with the operation of Tenant's business unless caused by the negligence of Landlord or its agents, servants, or employees. Except when caused by the negligence of the Landlord, his agents, servants, or employees, Tenant shall indemnify Landlord from all liability, loss or other damage claims for obligations resulting from any injuries or losses of this nature, including reasonable attorneys' fees and court costs incurred by Landlord in defending any such claims. Landlord shall indemnify Tenant for any loss occurring in the common areas not caused by or contributed to through the negligence or willful misconduct of Tenant or its agents, servants, employees, invitees, or guests. SECTION THIRTEEN FIRE INSURANCE Tenant is responsible for its own insurance to cover its own contents located in the Premises, all of the personal property and equipment included in the Premises, and the Premises itself. Landlord shall not be liable for any damage to the property or person of any of the Tenant's officers, employees, agents, invitees or guests from perils customarily covered by fire and extended coverage insurance, liability insurance or acts of God. It is agreed that Landlord shall be responsible for obtaining fire and extended coverage for the Building and Tenant shall be responsible for obtaining fire and extended coverage for the Premises, all with a reputable, appropriately rated and financially responsible insurer. The insurer must have an 'Excellent' financial rating as determined by Moody's or an A.M. Best rating of A - /IX. In addition, such insurance company must be authorized to do extended coverage insurance in the state in which the Building is located. Tenant shall maintain fire insurance and extended coverage on the interior of the Premises in an amount which is adequate to cover the cost of equipment and trade fixtures. SECTION FOURTEEN LIABILITY INSURANCE Tenant shall procure and maintain in full force, at its expense, during the term of this Lease, and any extension thereof, public liability insurance which shall be adequate to protect against liability for damage claims through public use of or arising out of any accident occurring in or around the Premises, in a minimum amount of Two Million Dollars ($2,000,000.00) per occurrence and Four Million Dollars ($4,000,000.00) aggregate. Landlord shall be an additional insured in such policy; Landlord shall be provided with a Certificate of Insurance from sublessee with reference to the same. Sublessee is the entity that has executed a sublease with the Tenant. Sublessee has agreed in said sublease to perform all of the obligations of the Lease including but not limited to supplying the Landlord with a Certificate of Insurance. SECTION FIFTEEN ASSIGNMENT, SUBLEASE, OR LICENSE Tenant shall not assign this Lease or sublet the Premises, or any right or privilege connected therewith, or allow any other person, except agents, employees, and customers of the Tenant, to occupy the Premises or any part thereof, without first obtaining the written consent of Landlord. A consent by Landlord shall not be a consent for a subsequent assignment, sublease or occupation by other persons. An unauthorized assignment, sublease, or license to occupy by Tenant, shall be void and this Lease shall terminate at the option of the Landlord. The interest of Tenant in this Lease is not assignable by operation of law, without the written consent of Landlord. Tenant may assign this Lease or sublet the premises to any bona -fide Subway licensee /franchisee of Doctor's Associates Inc. (who has been approved by normal review procedures which include inquiries into applicant's financial statement, credit, criminal and business histories, educational background, personal interviews, and the completion by the franchisee of the Subway business management school), without the prior consent of but within ten (10) days written notice to the Landlord. Such assignment or subletting shall not alter Tenant's responsibility to Landlord under this Lease. Landlord agrees to accept rent from the Tenant, its assignee, or sublessee. Landlord may, at Landlord's option and expense, conduct a background investigation on any assignee /sublessee. If said investigation reveals that the assignee /sublessee or any of its individual owners or principals has been convicted of a felony, then Tenant will, at Landlord's request, remove said assignee /sublessee. In this event, Tenant shall have the option of terminating this Lease or replacing the franchisee. However, that in no event shall Lessor's decision as to whether to approve a franchisee be made on the basis of the person's age, sex, race, national origin, religious creed, disability, ancestry or sexual orientation. Landlord and Tenant agree that the purpose of this Lease is to sublet the Premises to an authorized Subway® licensee /franchisee of Doctor's Associates Inc. Should Tenant not succeed in obtaining an executed sublease within sixty (60) days of the execution of this Lease, Tenant may, at Tenant's option, void this Lease upon written notice. Any assignment, sublease, or license of the Premises by Tenant shall require that the assignee, sublessee, or licensee be bound by this Lease to the same extent as Tenant. Furthermore, any such assignment, sublease, or license shall not relieve Tenant of its obligations under this Lease. SECTION SIXTEEN IMPROVEMENTS OR ADDITIONS BY TENANT During the term of this Lease, Tenant shall have the right and privilege of remodeling or altering the interior of the Premises, with the prior written consent of Landlord for alterations in excess of $10,000.00, in accordance with the standard SUBWAYO decor, including installation of additional partitions complying with all codes, ordinances, and laws in effect at the time of remodeling. Provided, however, that in conjunction with any remodeling project by Tenant, Tenant shall be required to obtain written consent of Landlord prior to the removal and/or relocation of any of the equipment set forth in Exhibit B attached hereto. If Tenant or its authorized assignee /sublessee is unable to obtain permits from all applicable governmental authorities to construct its improvements at the Premises thirty (30) days after this Lease is fully executed by Landlord and Tenant then Tenant may rescind this Lease. No alterations or improvements affecting the structural portion of the Premises shall be made by Tenant without the written consent of Landlord. Prior to the commencement of any remodeling or alteration of the Premises, Tenant shall provide landlord with detailed plans and a timeline relative to the work to be performed, which Landlord shall have the right to approve in its sole discretion for alterations in excess of $10,000.00. Tenant agrees that any such remodeling or alteration work shall not interfere with Landlord's use of the Building. SECTION SEVENTEEN RESTRICTIONS AGAINST MECHANIC'S LIENS Tenant shall pay and settle all expenses and liabilities arising out of or in any way connected with any and all construction, repairs, alterations, or maintenance of the Premises, and all liens of mechanic's and materialmen, and all liens of a similar character, arising out of or growing out of the construction, repair, alteration, or maintenance of the Premises, provided said work was performed by Tenant or at Tenant's request. SECTION EIGHTEEN SIGNS Tenant may, with prior written approval from Landlord, erect standard SUBWAY® signs above Tenant's counters, from corridor ceiling in front of space and on interior wall at front entrance of building. In the event Tenant shall be prohibited from utilizing the Franchisor's standard decor and signage, Landlord and Tenant shall use best efforts to obtain a variance or applicable approvals. Tenant may, at Tenant's option, terminate this Lease at anytime upon thirty (30) days written notice to the Landlord should Tenant, its assignee or sublessee fail to receive any approval, permit, licenses, rezoning or variance that is required to meet or exceed its requirements as stated herein. SECTION NINETEEN PARKING Landlord represents and warrants that there is adequate non - exclusive parking at the Building for parking by Tenant's employees and customers. Furthermore, Landlord will assure the parking areas are free of potholes, snow and ice, adequately striped and in good condition. The parking areas will be fully lighted, at Landlord's expense, until at least one hour after Tenant's closing. SECTION TWENTY HOLDING OVER The failure of Tenant to surrender the Premises upon the termination of the original lease term or extension, and subsequent holding over by Tenant, without consent of the Landlord shall result in the creation of a tenancy for month -to -month at a monthly rental of one hundred twenty -five percent (125 %) of the previous Lease term's rental amount, payable on the first day of each month during the month -to -month tenancy. This provision does not give Tenant any right to hold over. All other terms and conditions of this Lease shall remain in full force during any month -to -month tenancy hereunder. SECTION TWENTY -ONE NOTICES Landlord and Tenant acknowledge that it is extremely important that rent be paid in a timely manner as required by this Lease. Since Tenant may sublet the Premises to a licensee /franchisee of Doctor's Associates Inc. and the licensee /franchisee may pay rent directly to Landlord, Tenant does not receive rental income and will not know if rent has not been paid. Since the parties recognize that time is of the essence in this matter, Landlord agrees to give written notice to Tenant within one hundred twenty (120) days of any failure to perform any of the terms or conditions of this Lease by Tenant, its sublessee, or assignee Failure of Landlord to give such notice will constitute a waiver of monetary and non - monetary claims against the Tenant. Any notice which is to be given to Tenant shall be deemed sufficiently given if sent by Certified or Registered Mail, postage prepaid, addressed as follows: Tenant: (1) Subway Real Estate, LLC 325 Bic Drive, Milford, CT 06461, and (2) A necessary copy to: Fresh Alternatives Inc. 166 N. Concord Exchange 2 °d Floor South St. Paul, MN 55075, and (3) A necessary copy to: The demised premises Landlord: (1) City of Andover 15200 Hanson Boulevard NW Andover, MN 55304 (2) A necessary copy to: Hawkins & Baumgartner, P.A. 2140 Fourth Avenue N. Anoka, MN 55303 The customary receipt shall be conclusive evidence of service, and notices shall be effective as of the date received. Landlord agrees to accept rent at the above - referenced address. Any change in the Landlord entity (including, but not limited to; property ownership, address for notices, etc.) must be authorized in writing by the named landlord, its mortgagor, or by court order and sent to all the required notification parties as listed above. Absent such acceptable authorization, Tenant shall not be in default of this Lease if it continues to pay rent, nor shall it lose any of its rights, privileges (including, but not limited to; renewal options) as specified herein. SECTION TWENTY -TWO DEFAULT In the event Tenant's failure to perform any of the terms or conditions of this Lease continues for thirty (30) days after Tenant's receipt of written notice thereof, Landlord shall declare the rights of Tenant under this Lease terminated, and thereafter, recover possession of said Premises through legal process. Landlord acknowledges an affirmative duty to mitigate Tenant's damages and shall in no event seek to accelerate rent. For good and valuable consideration, Landlord agrees to the following provision: Notwithstanding any provision in this Lease to the contrary, Landlord and Tenant agree that Tenant's liability upon default, for nonpayment of rent only, shall not exceed $850.00. Tenant may, at Tenant's option, terminate this Lease at any rime, provided Tenant is not in default under the terms and conditions of this Lease at the time of said termination. In the event Tenant chooses to exercise this option, Tenant shall be required to pay to Landlord a sum of money equal to $850.00. If Tenant elects to exercise this option, it shall give Landlord at least thirty (30) days written notice thereof, which notice shall designate the date of termination and the term hereof shall expire on such date. Tenant shall make the payment required by this section within thirty (30) days after such termination. hi addition, should the rent exceed five percent (5 %) of the gross weekly sales for any three (3) of the prior eight (8) weeks, Tenant may terminate this Lease upon thirty (30) days written notice to Landlord, without incurring any liability for such termination. SECTION TWENTY -THREE TENANT'S REMEDIES ON DEFAULT In the event of any default by Landlord in the performance of any promise or obligation to be kept or performed hereunder and the continuance of such default for a period of thirty (30) days after receipt by Landlord of a written notice from Tenant specifying the default, Tenant, at its election, can declare this Lease terminated and void and vacate the Premises within an additional period of thirty (30) days, paying rent only to the date of said vacating. SECTION TWENTY -FOUR LICENSES /ALTERATIONS This Lease and Tenant's obligation to pay rent including any first month's rent or security deposit if any, are contingent upon Tenant's ability to procure upon first application, the necessary approvals, permits, and licenses, from appropriate governmental authorities to use the Premises as a SUBWAY® sandwich shop. Any deposit or first months rent that has been paid on behalf of Tenant prior to receipt of said permits and approvals shall be returned to Tenant within thirty (30) days of notice by Tenant to Landlord that the Premises fails to meet Tenant's requirement of suitability for its intended use as a restaurant. Said determination of suitability shall be made within sixty (60) days from the execution of this Lease. Failure by Tenant to notify Landlord of the unsuitability of the Premises for its intended use within said sixty (60) days shall constitute an acknowledgement and acceptance of the Premises as being suitable for Tenant's intended use. Further, upon receiving permits, approvals and licenses, including approvals required of Landlord as set forth herein, Tenant shall have the right and privilege of remodeling or altering the interior of the Premises, in accordance with the standard SUBWAY® decor, including installation of additional partitions, provided Tenant complies with all applicable codes, ordinances and laws in effect at the time of remodeling. No alterations or improvements affecting the structural portion of the Building shall be made by Tenant without written consent of Landlord. SECTION TWENTY -FIVE LANDLORD TO HAVE ACCESS Landlord hereby expressly reserves the right to enter the Premises and/or any part thereof, at any time, in the event of emergency. Furthermore, Landlord may enter the Premises after five (5) days written notice to make inspection and repairs, to exhibit the Premises to, purchasers, or prospective tenants (starting sixty (60) days before the expiration of the current term or extension period) and to perform any acts related to safety, protection, preservation, or improvement of the Premises. Tenant shall have the right to peacefully hold and enjoy the Premises without unreasonable hindrance or interruption by Landlord or any persons claiming by, through, or under it until the end of such term or any extension of renewal thereof. SECTION TWENTY -SIX RENEWAL TERMS Tenant has the option of extending this Lease for three (3) consecutive period(s) of three (3) years. Tenant shall provide Landlord with written notice of its intention to renew this Lease at least ninety (90) days prior to the expiration of the then current term. In the event Landlord does not receive Tenant's notice as stated above, Tenant shall not lose its option to renew unless and until the Tenant shall fail to give notice to Landlord within ten (10) days after receipt of written notice from Landlord citing Tenant's failure to exercise its option to renew. For the purpose of this section only, notification via facsimile (fax) will be deemed sufficient, provided a copy of such notice is also sent via regular mail. The terms and conditions for each renewal period shall be the same as those contained herein, including the Rent which shall remain the same as year three of the Term, which is the greater of seven percent (7 %) or $950.00 through all the options. SECTION TWENTY -SEVEN LIMITATION OF LIABILITY OF PERSONS AND ENTITIES AFFILIATED WITH TENANT LANDLORD RECOGNIZES AND ACKNOWLEDGES THAT TENANT IS A DELAWARE LIMITED LIABILITY COMPANY AND THAT TENANT'S ASSETS CONSIST ALMOST EXCLUSIVELY OF LEASES, SUBLEASES, AND OPTIONS TO PURCHASE LEASED PREMISES. LANDLORD ALSO RECOGNIZES AND ACKNOWLEDGES THAT TENANT WAS ORGANIZED PRINCIPALLY FOR THE PURPOSE OF NEGOTIATING AND DRAFTING LEASES WITH A VIEW TOWARDS SUBLETTING THE LEASED PREMISES TO FRANCHISEES /LICENSEES OF DOCTOR'S ASSOCIATES INC. ( "DAI "). LANDLORD RECOGNIZES AND ACKNOWLEDGES THAT IT HAS BEEN ADVISED THAT DAI IS A FLORIDA CORPORATION THAT OWNS ALL RIGHTS TO AWARD FRANCHISES FOR SUBWAY® SANDWICH SHOPS AND THAT LANDLORD HAS ALSO BEEN ADVISED THAT TENANT HAS NO RIGHTS WHATSOEVER TO AWARD FRANCHISES FOR SUBWAY® SANDWICH SHOPS OR COLLECT ANY FRANCHISE - RELATED ROYALTIES FROM ANY PROSPECTIVE SUBLESSEE OF THE PREMISES. LANDLORD RECOGNIZES AND ACKNOWLEDGES THAT IT HAS BEEN GIVEN AN OPPORTUNITY, WHETHER BY ITSELF OR WITH THE ASSISTANCE OF ITS PROFESSIONAL ADVISORS, TO MAKE INQUIRY OF TENANT'S FINANCIAL STATUS AND TO EVALUATE SAID STATUS TO ITS SATISFACTION. LANDLORD HAS EITHER MADE SUCH INQUIRY AND IS SATISFIED WITH THE RESPONSE TO SUCH INQUIRY OR HAS AFFIRMATIVELY AND VOLUNTARILY DETERMINED NOT TO DO SO. LANDLORD FURTHER RECOGNIZES AND ACKNOWLEDGES THAT NO PERSON OR ENTITY OTHER THAN TENANT HAS MADE ANY REPRESENTATIONS OF ANY KIND WITH REGARD TO THE ABILITY OF TENANT TO PERFORM TENANT'S OBLIGATIONS HEREUNDER. LANDLORD ALSO RECOGNIZES AND ACKNOWLEDGES THAT TENANT INTENDS TO SUBLEASE THE PREMISES TO A PERSON(S) WHO HAS OR WILL BE AWARDED A FRANCHISE /LICENSE FOR A SUBWAY® SANDWICH SHOP FROM DAI, UNDER WHICH SUBLEASE THE SUBLESSEE WILL PAY RENT DIRECTLY TO LANDLORD SO THAT THE RENTAL PAYMENT FROM SUCH SUBLESSEE WILL NORMALLY NOT BE RECEIVED OR HELD BY TENANT. ALTHOUGH THE SUBLESSEE MAY OPEN A BUSINESS OPERATION DOING BUSINESS AS A SUBWAYS SANDWICH SHOP AND MAY HAVE FRANCHISE AND OTHER BUSINESS RELATIONSHIPS WITH CORPORATIONS RELATED TO OR ASSOCIATED BY THE GENERAL PUBLIC WITH "SUBWAY," AS IT IS COMMONLY KNOWN, LANDLORD RECOGNIZES AND ACKNOWLEDGES THAT THE SOLE AND EXCLUSIVE PERSON OR ENTITY AGAINST WHICH IT MAY SEEK DAMAGES OR ANY REMEDIES UNDER THIS OR ANY OTHER DOCUMENT IN WHICH THE LANDLORD AND TENANT OR LANDLORD AND SUBLESSEE ARE PARTIES, WHETHER FOR UNPAID RENT AND ASSOCIATED DAMAGES, CLAIMS OF UNJUST ENRICHMENT, CLAIMS OF UNFAIR TRADE PRACTICES, OR ANY OTHER THEORY OF RECOVERY OF ANY KIND OR NATURE, IS TENANT OR SUBLESSEE. FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THERE WILL NOT BE ANY LIABILITY WHATSOEVER AGAINST (A) DAI, ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND /OR AGENTS, AND /OR (B) ANY PERSONS AND ENTITIES WHO ARE THE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AND /OR AGENTS OF THE TENANT. SUCH EXCULPATION OF LIABILITY SHALL BE ABSOLUTE AND WITHOUT ANY EXCEPTION WHATSOEVER. SECTION TWENTY -EIGHT ENTIRE AGREEMENT Landlord represents that there are no oral agreements affecting this Lease, exhibits and riders, if any, attached hereto and forming a part hereof, and that this Lease supersedes and cancels any and all previous negotiations, arrangements, letters of intent, executed lease(s), lease proposals, brochures, agreements, representations, promises, warranties and understandings between the parties as stated by, including but not limited to, Tenant's agent(s), employee(s), SUBWAYS franchisee(s), and/or SUBWAYS development agent(s) of Doctor's Associates Inc. No alteration, amendment, change or addition to this Lease shall be binding upon either party unless reduced to writing and signed by each party. SECTION TWENTY -NINE COMPETITION Landlord agrees not to lease any property owned or controlled by it within 1/2 mile of the Premises now or at any time during the initial term of this Lease or any renewal thereof to any entity which sells or serves sandwiches. Further, current tenants shall be prohibited from adding items to their menus which conflict with this exclusive right. Landlord warrants that based upon Tenant's representations as to its intended us of the Premises, Tenant shall not be in violation of any exclusive rights of other Landlord tenants when this Lease commences. Further, Landlord shall indemnify, defend and hold Tenant harmless from any third party claim or suit regarding any other prior exclusive right granted by Landlord. SECTION THIRTY RECORDING Upon receipt of a Memorandum of Lease in recordable form from Tenant, Landlord agrees to execute the same, or state its objections thereto, and return said Memorandum of Lease or its objections to Tenant within ten (10) days of receipt. In the event Landlord fails or refuses to execute the Memorandum of Lease within the specified time period, Tenant, at Tenant's option, may consider this a default by the Landlord and terminate this lease. The Landlord agrees that the Tenant and any third party requiring access to the Memorandum, may rely upon the information contained therein as being accurate. SECTION THIRTY -ONE WAIVER No waiver by either of the parties hereto of any provision or breach thereof, shall be deemed a waiver of any other provision or of any subsequent breach by Tenant or Landlord of the same or any other provisions. Landlord's or Tenant's consent to or approval of any act shall not be deemed to render unnecessary the obtaining of Landlord's or Tenant's consent to or approval of any subsequent act. No remedy or election hereunder shall be deemed exclusive, but shall, whenever possible, be cumulative with all other remedies at law or in equity. If at any time under the provisions of this Lease the consent of Landlord is required, it shall not be unreasonably withheld. SECTION THIRTY -TWO LAW This Lease and the performance hereunder shall be governed by the laws of the state in which the Premises are located without reference to its conflict of laws provisions. SECTION THIRTY -THREE HEADINGS The paragraph headings are for quick reference and convenience only and do not alter, amend, or otherwise affect the terms, conditions, and agreements set out herein. SECTION THIRTY -FOUR LITIGATION In the event of litigation between Landlord and Tenant relative to rights, obligations and duties of either party under this Lease, each party shall pay its own attorneys' fees and costs. Further, Landlord hereby waives any claim(s) against Tenant and any related parties for consequential, exemplary, and/or punitive damages. In addition, both parties hereby waive their rights to a trial by jury. SECTION THIRTY -FIVE SEVERABILITY Should any provision of this Lease be or become invalid, void, illegal or not enforceable, it shall be considered separate and severable from this Lease and the remaining provisions shall remain in force and be binding upon the parties hereto as though such provision had not been included. SECTION THIRTY -SIX FORCE MAJEURE If either party fails to perform any of its obligations under this Lease as a result of Force Majeure, such party shall not be liable for loss or damage for the failure and the other party shall not be released from any of its obligations under this Lease. If either party is delayed or prevented from performing any of its obligations as a result of Force Majeure, the period of delay or prevention shall be added to the time herein provided for the performance of any such obligation. "Force Majeure" shall mean any period of delay which arises from or through acts of God; strikes, lockouts, or labor difficulty; explosion, sabotage, accident, riot, or civil commotion; act of war; fire or other casualty; legal requirements; delays caused by the other party; and causes beyond the reasonable control of a party. SECTION THIRTY -SEVEN LEASE EXECUTION In the event Landlord does not execute this Lease within thirty (30) days of execution by Tenant, the Tenant may declare this Lease null and void. Within three (3) business days, Landlord shall return any and all monies paid and all counterparts of this Lease executed by Tenant. SECTION THIRTY -EIGHT CANCELLATION Landlord agrees that this Lease may be canceled by Tenant within thirty (30) days of full execution by so notifying Landlord in writing. SECTION THIRTY -NINE CONSTRUCTION Should any provision of this Lease require judicial interpretation, the parties hereto agree that the court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that a document is to be more strictly construed against the party who itself or through its agents prepared the same, it being agreed that Landlord, Tenant and their respective agents have participated in the preparation hereof. SECTION FORTY WHEN LEASE BECOMES BINDING The submission of this document for examination and negotiation does not constitute an offer to lease, or a reservation of, or option for, the Premises, and this document shall become effective and binding only upon the execution and delivery hereof by both Landlord and Tenant. SECTION FORTY -ONE TIMELINESS OF CHARGES Landlord agrees to notify Tenant in writing in accordance with this lease of any back charges due under this agreement or of any changes in the base rent, percentage rent or additional rent as and when they become due. All parties agree and acknowledge that time is of the essence with respect to these matters. In the event that Landlord does not appropriately notify Tenant within ninety (90) days of the date upon which said charges had become due, Landlord agrees that it has waived its rights to said back charges and further, that Tenant shall not be obligated to pay, nor shall it have any liability for these back charges. It is agreed that it is the intent of the parties that all charges be assessed in a timely manner as they accrue and in no event shall they be assessed to Tenant after this ninety (90) day period. SECTION FORTY -TWO COUNTERPARTS AND ELECTRONIC EXECUTION This lease may be executed in counterparts, each of which shall be an original and all of which counterparts taken together shall constitute one and the same agreement. Execution of this Lease by electronic means shall be valid and given equal force and effect as ink signatures. Further, the parties acknowledge that this lease consists of 42 sections, and exhibit A -C. IN WITNESS WHEREOF, the parties have executed and delivered this Lease as of the date first above written. LANDLORD: CITY OF ANDOVER Title: TENANT: SUBWAY REAL ESTATE, LLC Signature: Name (please print): Title (please print):_ EXHIBIT B EQUIPMENT Landlord will provide the use of, at no cost to the Tenant, the existing equipment listed below: 1. Commercial Single door refrigerator 2. Commercial Double door freezer 3. Commercial Ice Machine 4. Impinger conveyor oven w/ table 5. Stainless steel counter in the front with the built in warmer drawers 6. Stainless steel counter in the back with shelving, drawers and prep sink 7. Stainless steel micro wave shelf 8. Triple wash sinks 9. Exhaust Hood 10. Commercial Hand Sink 11. Seating and Tables for approximately 30 customers to use as Dining Area. Tenant will be responsible for keeping the Dining Area clean and maintained from opening until 5:00 p.m. Beginning at 5:00 p.m., Landlord will be responsible for keeping the Dining Area clean and maintained. Tenant shall be responsible for the maintenance and upkeep of the foregoing equipment. Prior to Tenant's occupancy, the parties shall determine the current value of each piece of equipment. In the event a piece of equipment needs to be replaced, the parties shall share in the cost of replacement with Landlord receiving a credit towards the purchase price equal to the value established prior to Tenant's occupancy, less any depreciation value. In the event a piece of equipment needs to be replaced due to the negligence or misuse of the equipment by Tenant, its employees, assigns, sublessees and/or lessees, Tenant shall be responsible for the full replacement cost of the equipment. Tenant Initials Sincerely, Landlord date Landlord Initials I, the undersigned, hereby accept the delivery of the Premises from Landlord to Tenant. Subway Real Estate, LLC date 1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755 -5100 FAX (763) 755 -8923 • W DOVER.MN.US TO: Mayor and Councilmembers CC: Jim Dickinson, City Administrato Dave Carlberg, Community Develop n Director FROM: Stephanie L. Hanson, City Planner SUBJECT: Public Hearing/Vacation of Easement/ Lot 1 Block 1, Maple Hollow, 1459 160th Lane NW -Planning DATE: October 2, 2012 INTRODUCTION The proposed vacation of easement would eliminate a portion of the drainage and utility easement for the placement of an in- ground pool. a DISCUSSION The property owner Mr. Heath Burris, Tristar Homes LLC and applicants Jeff and Mary Tullbane are requesting a vacation for a portion of an existing easement. Currently Tristar Homes LLC is the owner of the vacant lot. Building plans have been submitted to construct a residential house on the property for Mr. and Mrs. Tullbane. As part of the project, Mr. and Mrs. Tullbane would like to add an in- ground pool; however, the pool would encroach into the existing easement. The applicants approached city staff about the possibility of vacating a portion of the easement. The City Engineer has reviewed the proposal. There are no utilities, drainage, or ponding in the easement. Therefore there are no issues with the request. ACTION REQUESTED The Council is asked to hold a public hearing and approve the vacation of easement. Attachments Resolution Location Map Easement Vacation Exhibit Respectfully sub 'tted, Stephanie L. Hanson CITY OF ANDOVER COUNTY OF ANOKA STATE OF MINNESOTA RES. NO RXXX -12 A RESOLUTION GRANTING THE VACATION OF EASEMENT ON LOT 1 BLOCK 1 MAPLE HOLLOW LEGALLY DESCRIBED ON THE ATTACHED EASEMENT VACATION EXHIBIT AND AS FOLLOWS: That part of the north 35 feet of the drainage and utility easement as shown on the recorded plat of Lot 1, Block 1, Maple Hollow plat of the record in Anoka County, Minnesota except the west 5 feet and the north, northeasterly and east 10 feet thereof. WHEREAS, the property owner has requested to vacate the previously described portion of drainage and utility easement; and WHEREAS, a public hearing was held and there was no opposition to the request. WHEREAS, the City Council finds the request would not have a detrimental effect upon the health, safety, moral, and general welfare of the City of Andover; and NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Andover hereby grants the vacation of the drainage and utility easement. Adopted by the City Council of the City of Andover on this 2nd day of October, 2012 subject to the following: 1. The vacation of easement shall be recorded at Anoka County. ATTEST Michelle Hartner, Deputy City Clerk CITY OF ANDOVER Michael R. Gamache, Mayor Q cu 0 cu 0 cu Z 0{/\) LO O GA 79 AK)SNVH Z; ti X c I ISAMU i 15 37DVa O iN 0 (D .2 oU E h" 0- The Gregory Group INVOICE NO. 80533 db.a F.B.NO. 1063 -06 LOT SURVEYS COMPANY, INC. SCALE: 1"= 20h Esublishcd in 1962 `._, LAND SURVEYORS ; 9mw sPbpv edLmb rpa BnEFg Aan REGISTERED UNDER THE LAWS OF STATE OF MINNESOTA 0 nvid�Papd 4an Mwuniad 760173rdA.Nod, (76[]56o-W 3 O OaMaa lrm NOnumed Mimcgdis. Mimnaa55038 Fs NO.56&•:n I] Drndec WOOd fYq Satb Surveyors Certificate .woo o TRISTAR HOMES, LLC. a%o 9enet�P,pPeaedrdeaa6ah Basis for Pawhr sudace 9ranege bearings aS rCd NOTE: Pmpw tp�edss ale yA�eGbneWbdsoB MSti PhvpocW Wtmrg adanmlm b`1 rd m/a be dndbdyan 901.19 901.23 16 15t Avenue N.W. appeased brag plan and devdapmee orgoon, plaabetereesawMmmdanemrdkrn Pmpmedgradudh onmkaaweyme nu,p atagan d pmpmel mnhays trap tlhe Mrd delrhape.adbderdapn,aaplwa. Atei £d a �f 6reunrnous 9013] NOTE TaerddlmARtatBmfpert�ed pom 900.12 nt eel eleaeaa9bte ucRm b/EWda. 901.45 906.5 Proroaed rep defog sy, 906.2 ProPpaed Barage Furor - - - - - - - - - - ,902.6 ,�3;�� 898.5 Aopoaed Laa>:nt R. l ®em m. gab TypeniWFg _ _ _ a�z.a - S 89 °07 24" E 58.69 - °i0 °/ Lev 4 Level _ _ I(` 9023 r3 _ 4 R ba 901.]5 3rd Level Walkout 1 4 4th Level Lookout 9024 Q..d:J 902.6 9024 _ _ ___ - - - -��` O� ' 9172.19 � 2r - _ O `` �` \U ' Property Address: 1459 160th Lane, - - I I Oramye 4 \ Andover, Minnesota i 2 s,,,.- 901.0 Tom- UNtly Easement 'Ortlm ofOrarnage t \\ 1 -901.6 UMr I Benchmark: Top Nut Hydrae[ between Lots 2 & 3 I--,. fa beV ♦♦ Elevation = 906.28 "899.5 ------------ `� 1 .SY)2J \�, !� -- - -_____ � ;a .gt_ ♦ 1 to 4 1 1 / 1 EASEMENT VACATION DESCRIPTION: 1 9005 `y022 9025 $ To vacate dha[pad of the north 35 feet ofthe drainage / y0r0 899.9 / 900,4 wt- 1 j / 1 X01 and utility easemetd as shown on the recorded plat of Lal,Block 1, Maple Hollowplatof record in Anoka 1 ' Top Spikes County, Mimesota except the west 5 feet and the Top Spike 902. / 99260 1 earth, northeasterly and east 10 feet thereof. .7 903AS I 90 /.0 901. 9013 I rays :a...... ...._ . ...... ........._..... o ♦n 1 I 905.4 1 gi \ X1.4 W 25.0 N� a+ 6' ��9 �l'6 Proposed I 699.9 Z rot i0 I RCSIdeflLe Iy 1 y .WK.6 I ici 1 W Sun y„e V a Ion . / 5%./ Z N 1 904.5 903.5 ♦ o 905.9 P 945.7 °n C4• 906.2 I ,1 1 � , o I ss• / I voren i° I / N U) 1 905.4! ike [ 7' 905.01 906.2 9x4.4. i...z .............t...b TaP Spike,! I I 1 I i 904.20 ®.v roa. I I I I /0 904.63 \ I I f "904.5 1 f I v� `904.4 1904.6 6I>ya- 904. m \0 O s♦ 574.0 -/ e O � e¢ ra OyyyOO ,prrly� 945.0/ x73,52 i'. R•79 4 .904. 904.1 ♦:��OF -�I'� -90> - WEST 50.71 4075..♦ G Property located in Section ® 14, Township 32, Range 24, Anoka County, Minncsou J9 ,2 L 6PEh Lane N.W. I The only easements shown are tram plats otretnrd w i0rne'on I Block I, MAPLE HOLLOW pruvidedbydkent I Anoka Anoka County, Minnrsotn I ceNfy that this Plan, spedfnation, orreport was prepared by me or under mydked supe slpn and that I son a duty Licensed land Sur oyorunder the laws of the State d Minneurta Surveyed this 10th day of September 2012. Ron 9 -14 -12 easement vacation C. By y dGu,wo,> F1e Name egned mMt- 1fb10fc Mrva0533.dwg tksgay P urn. Rep. NO.24992 EASEMENT DESCRIPTION That part of the north 35 feet of the drainage and utility easement as shown on the recorded plat of Lot 1, Block 1, Maple Hollow plat of the record in Anoka County, Minnesota except the west 5 feet and the north, northeasterly and east 10 feet thereof. ANDOVEA T Y O F _ 1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755 -5100 FAX (763) 755 -8923 • WWW.CI.ANDOVER.MN.US TO: Mayor and Councilmembers CC: Jim Dickinson, City Administrator FROM: David L. Carlberg, Community Development Director SUBJECT: Amendment to the City Code 12 -2 -2 to add Definitions of Continuous and Non - continuous Hours of Operation DATE: October 2, 2012 REQUEST The City Council is requested to review and consider an amendment to the City Code 12 -2 -2 defining continuous and non - continuous hours of operation. BACKGROUND The City Council at their August 28, 2012 workshop in accordance with Section 12 -14 -4 initiated a text amendment to the City Code to clarify continuous and non- continuous hours of operation of businesses in the GB, General Business District as follows: "Continuous Operation " describes a business that is open to the public for some portion of each hour of the 24 -hours in a day and it also includes a business that is open to the public for more than 5 hours of the overnight period beginning at 11 pm and ending at 7 am. "Non- Continuous Operation " describes a business that closes to the public for at least five hours duration between the hours of 11 pm and 7 am each day of the week and which is not open for any portion of at least five continuous hours in a day. Planning Commission Review The Planning and Zoning Commission discussed the proposed definitions at the September 11th workshop. Language provided by the City Council was revised by the Commission as follows: Continuous Operation — A business that is open to the public for some portion of each hour of the twenty -four (24) hours in a day. Non - Continuous Operation — A business that closes to the public for at least four (4) hours duration between the hours of 11:00 p.m. and 7:00 a.m. each day of the week. The Commission also discussed at the September 11`h workshop other city's regulations regarding hours of operation of businesses. Attached is a table with the results of this research. The Commission evaluated the effect of restricting hours of operation by listing the pros and cons of implementing the definition of non continuous hours of operation of businesses. Listed pros included: Less traffic in neighborhoods Less crime/better policing Business knows hours closed City can control activities Listed cons included: Not business friendly Limits shopping options Less competition between businesses Limits return on investment Hard to enforce /regulate The Commission at the September 25`h, 2012 workshop continued the discussions on the definitions. The Commission was unable to come up with clear and definitive definitions and felt the adoption of hours of operation definitions required additional study to fully understand the implications to existing businesses as well as to new businesses interested in locating in Andover. The Commission was also concerned on what other commercial districts these definitions should apply to. Currently, 24 hour operation of a permitted use is allowed in the NB, Neighborhood Business and SC, Shopping Center Districts. These two districts are less intensive as far as the uses allowed compared to the GB, General Business District and I, Industrial District where 24 hour operation is not allowed. Planning Commission Recommendation The Planning and Zoning Commission held a public hearing at the September 25, 2012 meeting and upon receiving public testimony recommended to the City Council denial of the requested text amendment. The denial was based on the premise that the effect of the ordinance amendment as proposed would render uses currently permitted in the City Code as no longer permitted or would alter them in such a way as to effect the business without due process. The Commission found that the originally proposed language of the text amendment had greater impacts and implications than merely clarifying hours of operation and that additional review and study was needed. See attached draft minutes. Attachments • Ordinance Amendment • August 28, 2012 City Council Work Session Minutes • Table of other City's Regulations • September 11, 2012 Planning and Zoning Commission Minutes • September 25, 2012 Draft Planning and Zoning Commission Regular Meeting Minutes • Email received from Bonnie Coffey on September 25, 2012 entered into the public record at the September 25th Planning and Zoning Commission meeting • Memo to Council Members provided by Council Member Julie Trude Dated 9.27.12 CITY OF ANDOVER COUNTY OF ANOKA STATE OF MINNESOTA ORDINANCE NO. xxx AN ORDINANCE AMENDING THE CITY CODE TO ADD DEFINITIONS OF CONTINUOUS AND NON - CONTINUOUS HOURS OF OPERATION THE CITY COUNCIL OF THE CITY OF ANDOVER DOES HEREBY ORDAIN AS FOLLOWS: CITY CODE TITLE 12: ZONING REGULATIONS CHAPTER 2: RULES AND DEFINITIONS SECTION 12 -2 -2: DEFINITIONS "Continuous Operation" describes a business that is open to the public for some portion of each hour of the 24 -hours in a day and it also includes a business that is open to the public for more than 5 hours of the overnight period beginning at 11 pm and ending at 7 am. "Non- Continuous Operation" describes a business that closes to the public for at least five hours duration between the hours of 11 pm and 7 am each day of the week and which is not open for any portion of at least five continuous hours in a day. All other Titles, Chapters and Sections of the City Code shall remain as written and adopted by the Andover City Council. Adopted by the City Council of the City of Andover on this 2 °d day of October, 2012. ATTEST: Michelle Hartner, Deputy City Clerk CITY OF ANDOVER Michael R. Gamache, Mayor Andover City Council Workshop Meeting Minutes —August 28, 2012 Page 12 Councilmember Trude suggested City Administrator Dickinson to with Fire Chief Winkel and ask for his input. She asked if there was a different way to han e the on -call situation. She stated she would support some increase. Councilmember Knight /Anda ndover compare to surrounding communities for volunteer fire fighter pay. City Administrator Dick the Ci s comparable to surrounding communities. Councilme mber Bukkila o people are on -call then the rotation cycle increases and a person is not on -call eves. It was the consensus of tto direct staff to do additional research and talk with Fire Chief Winkel regarding creases for on -call status and report back to the Council. CITY REVIEW City Adminis for Dickinson provided a summary of the City's Investment portfolio. He stated the City of dover Investment Policy recommends the Finance Director present to the City Council rterly the detail listing of investments held by the City. He pointed out the Vadnais Heig innesota investment line item was not the sports complex in that community and this inv tment is a G.O., back by advalorem tax,�lii e inc u e as a comment m t e OTHER TOPICS Code Amendment to Clarify Continuous and Non - Continuous Operations of Business Councilmember Trude stated she would like the Council to consider initiating a code amendment that would clarify continuous and non - continuous operations of a business for the City Code and the General Business District. There is currently no definition in the current City Code. She recommended the following definitions: continuous operation describes a business that is open to the public for some portion of each hour of the 24 -hours in a day and it also includes a business that is open to the public for more than 5 -hours of the overnight period beginning at 11 p.m. and ending at 7 a.m. And non - continuous operation describes a business that closes to the public for at least a 5 -hour duration between the hours of 11 p.m. and 7 a.m. each day of the week and which is not open to the public for any portion of at least 5 continuous hours in a day. Mayor Gamache asked about the overnight hours. Councilmember Trude explained the business could determine the 5 -hour duration they were closed as long as those hours fell between 11 p.m. and 7 a.m. Councilmember Bukkila expressed concerns with this applying to existing businesses. She Andover City Council Workshop Meeting Minutes —August 28, 2012 Page 13 stated 5 -hours would be too long of a period. There are some businesses that need to be open prior to 7:00 a.m. Councilmember Trude stated 4 -hours would be acceptable Councilmember Howard stated a business like Pappy's could be open until 2:00 a.m. and then open again for early breakfast at 6:00 a.m. Councilmember Trude stated that would be permitted for Pappy's because they are in a shopping center and the City allows 24 -hour operation in a shopping center. She would like to see the Council propose the amendment and send it to the Planning Commission for their review because they are currently reviewing the City's use chart. Mayor Gamache stated the Planning Commission would need to hold a public hearing on this type of amendment. It was the Consensus of the Council to initiate a City Code amendment to clarify continuous and non - continuous operation of business and send to the Planning and Zoning Commission for review and public hearing. ADJOURNMENT Motion by Councilmember Bukkila, Seconded by Councilmember Howard, to adjourn the August 28, 2012 City Council Workshop. The motion carried unanimously. The meeting adjourned at 10:33 p.m. Respectfully submitted, Tina Borg, Recording Secretary G „N,t z z;� m„ m n m w w w D A O v o w I.< : O v v G � �° O p O v •v iM OC ID ID CD CC:r N fD a (D O N � � prj � v S S I OO I rr N I i ZOO of (D C Z Z Z Z< Z Z Z< Z Z Z Z Z Z Z Z Z Z Z � A O O O. fD C 7 3 3 Z � 3 3 Z h v v o Da m m r. m ro m of m N m N n -, N N N _ '•F fy w 3 n n n O 3 M p- � O- N O_ N O_ (gyp Q N S S N ri 3 rt S r-+ 3 O O O N O O O OO OU y Oct Oq OO M S S S 3 S 01 O W � C _ 0 o 0 0 0 D 3 � � � m N Vl o v o � Oil T. 0 O O Q O_ S 5 3 3 O' O O' O O �- N I C C ro O S S O M O_ O O 0 � � O O d Q O_ I cD ru 7 m 3 m orq c Ll S G/ p' v 7 0) O '�•r O .r c c M (D aq O K as oa' 7 3 7 S O' S O' 3 O W m S S S 3 7 i (D M p p p 0'U' Oil I, Q O_ S O' O O' O O I O S S O_ O O O O Q O_ I PLANNING AND ZONING COMMISSION WORKSHOP MEETING — SEPTEMBER 11, 2012 The Workshop Meeting of the Andover Planning and Zoning Commission was called to order by Chairperson Daninger on September 11., 2012, 6:00 p.m., at the Andover City Hall, 1685 Crosstown Boulevard NW, Andover, Minnesota. Commissioners present: Chairperson Daninger, Commissioners Dennis Cleveland, Valerie Holthus, Lynae Gudmundson (arrived at 6:06 p.m.), Kyle Nemeth, Michael Olsen and Steve Peterson. Commissioners absent: None. Also present: Community Development Director Carlberg City Planner Stephanie Hanson City Administrator Jim Dickinson Others DISCUSS CITY CODE 12 -12 PERMITTED, CONDITIONAL AND PROHIBITED USES Community Development Director Carlberg stated at the August 28, 2012 City Council Workshop, in accordance with Section 12 -14 -4, the Council initiated a text amendment to the City Code to clarify continuous and non - continuous operation of business. The requested text amendment would add these definitions. The Planning Commission is asked to review this language and discuss the impacts to the City and review the pros and cons of amending the City Code. He stated currently the Neighborhood Business and Shopping Center Districts allow for continuous operations but the General Business and Industrial Districts do not. City Planner Hanson stated she had contacted several surrounding communities to determine if they had similar language in their codes. She did not find specific definitions in other codes limiting hours of operation for businesses or defining non- continuous operations. This was done through the PUD process. Commissioner Olsen suggested the Planning Commission work on the definitions then look at how these would apply to the City's districts and impact businesses. Andover Planning and Zoning Commission Workshop Meeting Minutes — September 11, 2012 Page 2 Councilmember Trude stated she had drafted the proposed language in response to resident concerns that the City's current code was vague in regards to what is considered continuous operation. The intent of the code is not to allow a business to remain open for 23 -hours 59- minutes. The proposed definitions would provide consistency in the City Codes and defining both continuous and non - continuous clearly shows the City's intent with the codes. Chair Daninger clarified the surrounding communities that regulated business hours did it through the CUP or PUD processes rather than provide specific definitions. City Planner Hanson stated this was correct. Community Development Director Carlberg stated that the proposed changes could impact other districts in the City and this should be reviewed as well. Councilmember Trude stated the proposed definitions would set what hours a business could be open and how long they would need to be closed to the public in order to maintain a non - continuous operation. If a business closes for 5 consecutive hours between 11:00 p.m. and 7:00 a.m. then this would qualify as non - continuous operation. Commissioner Olsen suggested the language for non - continuous operations should be "...each day of the week or which is not open to the ... ". He also suggested the 5 -hours be changed to 4- hours. This would allow a business to remain open past 11:00 p.m. and still be able to open early in the morning. Commissioner Peterson asked if this would be 5 -hours overnight or if it would be any 5- hours of the businesses choosing. Commissioner Cleveland stated the intent is to have a business closed during the overnight hours but this would also give businesses the opportunity to remain open to do stocking and other activities as long as they are closed to the public for the 4 or 5- hours. Commissioner Nemeth stated the concerns have been about truck activity during the overnight hours and allowing a business to remain open for non -sales activities would not meet the intent of the definitions. Community Development Director Carlberg stated the traffic would be reduced because the business would not be open to the public. He stated the proposed definitions would not impact industrial businesses in Industrial Districts as much because they are typically not open to the public but this district would also be subject to the limitations of the definitions. Commissioner Olsen stated it would make more sense to lower the number of hours a business is required to be shut to the public to 4 -hours and allow the business to choose the hours they want for this to occur between the hours of 11:00 p.m. and 7:00 a.m. Andover Planning and Zoning Commission Workshop Meeting Minutes — September 11, 2012 Page 3 Commissioner Cleveland stated a business looking to potentially move to Andover would look for a definition of continuous operation since this is a term used in the City Code. It was the consensus of the Planning Commission to look at the pros and cons of non- continuous operations with a definition of non - continuous operation as a business that closes to the public for at least 4 consecutive hours between the hours of 11:00 p.m. and 7:00 a.m. Commissioner Olsen suggested the definition for continuous operation as "a business that is open to the public for some portion of each hour of the 24 -hour day. The chart will need to be reviewed to determine if these definitions would work with the permitted and non - permitted uses in each district. Community Development Director Carlberg stated once definitions have been developed then they should be applied to the City's Code and the pros and cons reviewed so the impacts to each district can be looked at. He explained the General Business District is intended to be the main shopping area of the City and is currently more restricted than the Neighborhood Business and Shopping Center Districts. Commissioner Gudmundson clarified under the proposed definitions a business could remain open 24 -hour hours as long as they were closed to the public for 4 consecutive hours between 11:00 p.m. and 7:00 a.m. Commissioner Cleveland stated a pro would be as a business you would know what the City would allow for hours of operation prior to considering opening a business and this would also allow for businesses to plan and schedule down times. Commissioner Daninger stated a pro to adopting these definitions would be there is less traffic on the roads during the overnight hours. Commissioner Holthus stated a pro would be the potential for less crime. Commissioner Gudmundson stated another pro would be the City would have more control over the hours a business can operate. Commissioner Peterson stated if the City does not allow continuous operations then there would not be places for people to hang out in the middle of the night. Chair Daninger stated if he were a 24 -hour restaurant then he would not find Andover as a place for him to build his business. Also by not allowing continuous operations in the City's main business district this will limit the shopping options for Andover residents. Commissioner Olsen stated there would be a limit of the return of investment for businesses as well if they are required to close when their standard operations show 24- Andover Planning and Zoning Commission Workshop Meeting Minutes — September 11, 2012 Page 4 hour operations are more cost effective. The process of opening and shutting down a business can be costly. Chair Daninger stated the more revenue local business had the more taxes this would generate for the City. Commissioner Nemeth stated it would be difficult to enforce the hours of operation for a non - continuous operation because the hours they are required to be closed would be different for each business Commissioner Olsen stated the restrictions would make Andover less competitive with surrounding communities for businesses. A General Business District is typically less restrictive than Neighborhood Business and Shopping Center Districts. Commissioner Gudmundson asked how the implementation of these definitions would impact existing businesses. Community Development Director Carlberg stated existing businesses would be grand - parented in their respective districts based on what was in place at the time they were approved. The Planning Commission is tasked with looking at the impact of these definitions on the City as a whole. Commissioner Olsen stated these definitions would greatly limit the available places for those residents in Andover that are up during the overnight hours. Community Development Director Carlberg stated the process would include the Planning Commission holding a public hearing. In order to hold a public hearing on September 25 a notice would need to submitted for publication in the official newspaper by Wednesday, September 12. He stated in his opinion it would be a mistake for the Planning Commission to move forward with restrictions without looking at the City's Use Chart. If these types of restrictions are going to go into effect for the General Business District then the restrictions for other Districts will need to be reviewed as well. Councilmember Trude stated customers for a regional business come from beyond City borders and this is the type of business that would be in the General Business District. Neighborhood businesses typically only draw local traffic and this is significantly less. The demographics in Andover show this is a community of younger, affluent, family orientated people who work during the day and there are few factory workers. This data would lend itself to support a business district that does not operate 24 -hours a day. She stated those businesses that are regional and along highway systems also have higher crime. Commissioner Olsen stated he could understand this as a logical argument but how could the City say they want businesses in Andover but only if they serve Andover residents. Andover Planning and Zoning Commission Workshop Meeting Minutes — September 11, 2012 Page 5 Chair Daninger stated based on the discussions the Planning Commission would not be able to finalize the proposed definitions and hold a public hearing by September 25 Community Development Director Carlberg stated staff had also done a pros and cons list for setting these restrictions in the General Business and Industrial Districts. The pros included the limited traffic impacts during the overnight hours. The cons included Andover would not be considered business friendly and from an economic development stand this would make it difficult to draw new business to the City and the shopping options for residents would be limited. He stated Andover is a progressive community and there are shift workers who would like the ability to shop in their communities. He stated one of the things the Planning Commission should consider is the impacts on other businesses because based on the proposed definitions and the districts involved County Market would be allowed to remain open for 24 -hours but Festival Foods would not. The General Business District was designated because this area is not in a residential area and would not impact residents like a Neighborhood Business District would. Chair Daninger stated there are issues that need to be discussed and reviewed before this type of amendment can be recommended to the Council for approval. Commissioner Cleveland stated the General Business District should not be more restrictive than the other business districts. If this proposal is adopted at this time it is clear it would be limit the operations of a single business and he would be opposed to this. Commissioner Holthus asked why there was a rush to approve this amendment. There are still aspects of this amendment that need to be considered by the Planning Commission. Chair Daninger recommended the Planning Commission continue discussions at the next workshop then schedule a public hearing. He clarified he would like to have a more polished amendment proposal to present to the public. Councilmember Trude stated the Council would be disappointed if the Planning Commission did not adopt this language and move forward with a public hearing. The Council wants this adopted as soon as possible so the code is clear in regarding to what is continuous and non - continuous operations. There is a definition presented and this should be moved to a public hearing so it can be adopted as part of the City Code. The Council is not asking the Planning Commission to act on other definitions in the code or the City's use chart at this time. The City needs to be clear on what it would consider non - continuous operation prior to any building permits being issued. Chair Daninger stated the Planning Commission understands the Council would like to move forward but it is the Planning Commissions responsibility to look at the cause and effect amending the City Code would have. Andover Planning and Zoning Commission Workshop Meeting Minutes — September 11, 2012 Page 6 Commissioner Olsen stated the Planning Commission should consider going back to a bi- monthly meeting schedule. It was the consensus of the Planning Commission to continue discussions on the definitions for continuous operation and non - continuous operation at the next scheduled workshop. OTHER BUSINESS. None. ADJOURNMENT. The Planning Commission adjourned at 6:59 p.m. Respectfully Submitted, Tina Borg, Recording Secretary Timesaver Off Site Secretarial, Inc. DRAFT PLANNING AND ZONING COMMISSIONMEETING —SEPTEMBER 25, 2012 The Regular Bi- Monthly Meeting of the Andover Planning and Zoning Commission was called to order by Chairperson Daninger on September 25, 2012, 7:00 p.m., at the Andover City Hall, 1685 Crosstown Boulevard NW, Andover, Minnesota. Commissioners present: Chairperson Daninger, Commissioners Dennis Cleveland, Lynae Gudmundson, Valerie Holthus, Kyle Nemeth, and Michael Olsen. Commissioners absent: Commissioner Steve Peterson Also present: City Planner, Stephanie Hanson Community Development Director, David Carlberg Others APPROVAL OF MINUTES. September 11, 2012 Commissioner Nemeth requested a change to the minutes noting the word "and" should come before Walmart, within the minute approval language on Page 1. In addition, he requested a change on Page 4, the fourth paragraph, the second "that' should be removed. Finally, the first paragraph on the top of Page 5 needed revision and clarification. Staff was directed to review the tape and provide clarification on this sentence. Motion by Cleveland, seconded by Nemeth, to approve the minutes as corrected. Motion carried on a 6 -ayes, 0 -nays, 0- present, 1- absent (Peterson) vote. PUBLICHEARING. Consider an Amendment to the City Code 12 -2 -2 Regarding Definitions of Continuous and Non - Continuous Hours of Operation and Related Sections Community Development Director Carlberg noted the purpose of this item is to hold a public hearing and take input on a code amendment regarding definitions of continuous and non - continuous hours of operation. Regular Andover Planning and Zoning Commission Meeting �� Minutes — September 25, 2012 Page 2 Mr. Carlberg reviewed the proposed Code Amendment with the Commission. He reviewed the latest definitions that were discussed at the September 11th worksession meeting. He noted the business community in Andover was contacted regarding the proposed text amendment through the mailing of the public hearing notice. He received several comments and feedback, which was reviewed with the Commission. He requested the Commission discuss the item further and take public comment. Motion by Holthus, seconded by Cleveland, to open the public hearing at 7:07 p.m. Motion carried on a 6 -ayes, 0 -nays, 0- present, 1- absent (Peterson) vote. Lori Mount, 2044 148th Avenue NW, commented all businesses in Andover were notified of the proposed amendment. She indicated the low attendance this evening led her to believe there was no opposition. She understood the proposed language change was tightening the City's definitions and not targeting any one specific business. Ms. Mount stated she moved to Andover due to the fact it had quiet neighborhoods. She encouraged the City to continue this going into the future. She recommended the Planning Commission proceed with the Council's recommendation and approve the definitions. Mr. Carlberg read the proposed text amendments as proposed this evening for the record. Eric Miller, MFRA, Inc. the consulting engineer for Walmart, noted his client (Walmart) was looking to come into the City of Andover and the proposed Code amendment would affect the stores desire to operate 24 hours a day. He indicated his client was proposing a Supercenter to meet the needs of Andover residents. Mr. Miller indicated that they have complied with all zoning requirements with regard to screening and buffering from the adjoining properties to date. Dennis Davis, 4878 170th Lane, explained he has been with Walmart for 24 years and works in the health and wellness division. He is also an Andover resident. He commented the 24 hours of operation offers convenience to residents. He did not anticipate a large deal of traffic in the overnight hours, but would allow for families to purchase medications when needed. He commented it also allowed residents to purchase groceries in the early morning hours. Richard Schneider, 200 South Sixth Street in Minneapolis, is a land use attorney and represents Walmart and other property owners on land use issues. He was surprised by the proposed zoning code amendment. He indicated the text amendment was very unusual and not particularly business friendly and puts the City at a competitive disadvantage in attracting certain businesses. He also stated comments have been made that there is not a lot of people showing up and there is a lack of interest in this issue by the existing business community, however, those future businesses and development opportunities interested in locating in Andover are not represented and won't be if a they feel there is a competing community better suited for them due to the hours of operation allowed. He also thought it was really unusual that 24 hour operation was allowed in a less intense zoning district such as the Neighborhood Business District but not in a Regular Andover Planning and Zoning Commission Meeting Minutes — September 25, 2012 Page 3 k AF General Business District. There usually is a rational basis for treating one differently than the other which is not all that apparent. He offered that the solution might be to change that distinction and make it more even handed. Mr. Schneider suggested the Commission consider revising the definitions and allow each business in Andover to set their own hours of operation based on demand. Dawn Shnikels Johnson, 1553 140th Avenue NW, indicated she lived two blocks from the proposed Walmart site. She explained she attended the Council meeting regarding the Ordinance language and hours of operation. It was her opinion that Andover already had businesses that could handle emergency purchases in the overnight hours. She encouraged the Commission to support the clear definitions within the proposed text amendment. Curtis Jones, 1801 139th Avenue NW, stated Andover was a unique community. He saw the potential for a 24 hour business to be an open door, which would lead to further commercial businesses and change the look and feel of the community. He encouraged businesses to come to Andover, thrive and create jobs, while operating within restricted business hours. Kathy Heltemes, 1432 140th Avenue NW, understood the convenience of a 24 hour Walmart. However, she believed Andover was a bedroom community that did not have a need for shopping at 2:00 a.m. She encouraged the developers to reconsider their development as a non - continuous operation. Ms. Mount commented the proposed text amendments would assist with clearly defining business operating hours. She did not feel that the language revisions would prohibit business. Motion by Cleveland, seconded by Gudmundson, to close the public hearing at 7:32 p.m Motion carried on a 6 -ayes, 0 -nays, 0- present, 1- absent (Peterson) vote. Commissioner Olsen stated there were a number of current permitted uses (24 -hour Laundromat, car wash, mini - storage) that could be interpreted to be open to the public. These could be affected by the continuous operation language amendment. Commissioner Holthus supported the City clearly defining these terms within the City Code. However, she was in favor of revising the language slightly to address the hours and days of the week more specifically. Chairperson Daninger commented the current language would cause concern for future restaurants as they would have to close at 11:00 p.m. Commissioner Gudmundson indicated the proposed timeframe for the non - continuous operation businesses was rather random and should be further discussed. Regular Andover Planning and Zoning Commission Meeting Minutes — September 25, 2012 DRAFT Page 4 Chairperson Daninger noted a fitness center with 24 hour access would also be affected by the proposed language. He thanked the public for their input this evening and questioned how the Commission wanted to proceed on this item. Commissioner Gudmundson was in favor of denying the proposed code amendment. Commissioner Olson stated "Open to the Public' was not clearly defined within City Code at this time and would have to be addressed prior to approval of this text amendment. He indicated further discussion and clarification was needed on this issue. Commissioner Cleveland commented this issue seemed very straight forward in the beginning, however, after much discussion, there were still concerns. For this reason, he did not support the current text amendment language. Chairperson Daninger requested the maker of a motion clearly state the reasons for denial. He asked for assistance in determining concrete reasons for denial of a definition that is unclear. Community Development Director Carlberg stated that the Commission needs to look back at what the original intent of this item coming before the Commission was to address. The intent was to restrict the hours of operation to address the issues of traffic, noise, glare, crime, etc. in the nighttime or overnight hours. If the Commission does not feel the proposed definitions in the text amendment addresses these concerns and issues that would support a recommendation of denial. Commissioner Cleveland stated after speaking with 20 area communities none were found to control hours of operation through City Code. This was handled through conditional use permits or through planned unit developments. He indicated amending the code was much more difficult, due to the ripple effects that would be felt by all Andover businesses. Motion by Olsen, seconded by Cleveland, to recommend to the City Council denial of the Amendment to City Code 12 -2 -2 regarding Definitions of Continuous and Non - Continuous Hours of Operation and related sections based on the following findings of fact: Approving the proposed definitions would render uses currently permitted by City Code to be no longer permitted or be altered by such a degree as to change the basic function of the business without due process. Motion carried on a 6 -ayes, 0 -nays, 1- absent (Peterson) vote. Mr. Carlberg stated that this item would be before the Council at the October 2, 2012 City Council meeting. Dave Carlberg From: Bonnie Coffey [bonnie @cminfospec.com] Sent: Tuesday, September 25, 2012 1:35 PM To: Dave Carlberg Subject: ordinance for General Businesses in Andover Hello Mr. Carlberg I am voicing my concerns over changes in the Continuous Operation code amendment. With another Walmart open in Coon Rapids at Riverdale, its not necessary to have another Walmart open for 24 hours a day. I don't want to see the proposed Walmart at the POV's location to be open for 24 hours. Also please do not change the current language whereby a business would have to be closed for at least 5 continuous hours during the time period of 11 pm to 7 am. I don't think another Walmart provides any advantage for the City of Andover or its residents. I would like to see the mix of businesses in the area remain and not go out of business due to another Walmart in our area. Thank you x0fuue C'a" President /CEO CM Information Specialists 6875 Highway 65 NE Fridley, MN 55432 763 572 0802 direct dial 763 205 7114 fax 763 572 0902 CMIS - R01 www.cminfospec.com Attain Document Services - www. attaindocumentservices.com Secure4Sending - www.secure4sendina.com NOTICE.• This email message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. Memo To: Council Members Fm: Julie Trude Date: Sept. 27, 2012 Re: Proposed Revisions to Definitions on Continuous and Non Continuous Operation At our meeting held on August 28, 2012, the Council asked staff to forward two definitions to the Planning Commission for review and public hearing. The current zoning code has a chart which lists as a permitted use, "24 -hour continuous operation" in zoning districts SC- shopping center and NB- neighborhood businesses. The same chart specifically does "not permit" "24 -hour continuous operation" in any residential, LB- Limited Business, GB- General Business, or I- Industrial zones. Council's Proposal "Continuous Operation" describes a business that is open to the public for some portion of each hour of the 24 -hours in a day and it also includes a business that is open to the public for more than 5 hours of the overnight period beginning at 11 pm and ending at 7 am. [Discussion point: 4 or 5 hours] "Non- Continuous Operation" describes a business that closes to the public for at least five hours duration between the hours of 11 pm and 7 am each day of the week and which is not open for any portion of at least five continuous hours in a day. Planning Commission workshop, September 11, 2011, revision: "Continuous Operation" describes a business that is open to the public for some portion of each hour of the 24 -hours in a day. "Non- Continuous Operation" describes a business that closes to the public for at least four hours duration between the hours of 11 pm and 7 am each day of the week Suggested Revision 3: "Continuous Operation" describes a business that is open to the public for some portion of each hour of the 24 -hours in a day. "Non- Continuous Operation" describes a business that closes to the public for at least five hours duration between the hours of 11 pm and 7 am. These definitions would be added to 12 -2 -2. A new footnote number would be added to the Zoning Use Chart found in 12- 12 -12. The footnote reference would be added to the use: "24 -hours continuous operation." The footnote language: "See 12 -2 -2 for Definitions of "Continuous Operation" and "Non- Continuous Operation." After viewing the publicly broadcast portion of the September 25, 2012 Planning Commission meeting, I prepared these responses to the comments and concerns I heard expressed: I. Concern: There is a problem with the definition for "Non- Continuous Use" because it uses the word "day" but the time period 11 pm to midnight is one day, while midnight to 7 am is a different day. Response: Options: (a) Place a period after 7 am." Delete "each day of the week." SEE Revision 3. Or, (b) Replace "each day of the week" with "during a 24 -hour cycle" Or, (c) Change hours of closure to: "midnight to 7 am each day." 1 2. Concern: Some businesses listed on the use chart may need 24 -hour operation, like hotels. This was the specific reason the planning commission voted to not approve the definitions as code amendments. Response: The proposed definitions clarify words for the zoning code as it exists today. The current code is clear: 24 -hours continuous operation is not permitted in General Business, Limited Business, Industrial or Residential zoning districts. Any business needing 24 -hours continuous operation in any of these districts, such as a hotel, could apply for re- zoning change, or a code amendment. In those situations, the immediate neighbors, who may be impacted, would receive mailed notices of the public hearing on such a proposal. The concerns of the planning commissioners are not related to the definitions but to inconsistencies that have existed in our zoning code for years. 3. Comment: Other cities use Conditional Use Permits to limit hours. Response: There are multiple ways to control hours of business, including the zoning code. The code has a limit on hours. The council is now defining that limit. 4. Comment: Some businesses do not like or want the city to restrict their hours. Response: Cities frequently restrict business hours due to their location and proximity to incompatible uses and concerns about negative impacts on residential or abutting property uses. Andover restricts hours of businesses with every Conditional Use Permit issued for a gas station, drive through, car wash, vehicles sales and more. All Andover businesses received a notice of the public hearing, even those in the zones where 24 -hours of continuous operation is permitted such as the Downtown Center Shopping Mall, the Hanson Commons, the Clock Tower Commons and more. All were invited to make written or oral comments on the topic. Only representatives of a proposed big box store appeared. They did not address the definition. They opposed the current restriction on the property they are considering. No other business provided specific input that was shared at the public hearing, on the proposed language. 5. Comment: What does "open to the public" mean? Response: Many words used in our zoning code are not defined because they are commonly understood words and phrases. Business owners understand this term. Conclusion: The original memo I wrote to the Council with the proposed definitions provides a rational basis for city leaders to clarify the existing city code language for the zones where "24 -hour continuous operation" is "not permitted." Some of the comments from the memo: We are a bedroom community of young families who sleep at night, we do not have many shift workers needing this convenience so customers are likely to be those traveling into Andover reducing our usual quiet for homes near major thoroughfares, more lights are used when a business is open than when they are closed, night activity increases with lit parking lots and large parking areas are more difficult to monitor than small lots, and residents do not want to see our city code changed because they like the current character of the city. The current Zoning Code contains hundreds of pages of regulations all with one purpose: 12 -1 -2: PURPOSE: This title is adopted for the purpose of: A. Protecting the public health, safety, morals, comfort, convenience and general welfare Code Amendment to Clarify Continuous and Non - Continuous Operation of Businesses Submitted by Council Member Julie Trude, 8/28/12 workshop There are no definitions in our code for "Continuous Operation" and "Non- Continuous Operation." We need to clarify how we want these words understood. Chapter 12 has a zoning chart which states: "Twenty four (24) hour continuous operation of permitted uses." Boxes are checked so this phrase only applies in NB (Neighborhood Businesses) and SC (Shopping Center) zoning districts. An empty box for GB (General Business) indicates this is not permitted in that zoning district. However, the public is asking us how this will operate in our city. It is unclear. I suggest we add the following definitions to Chapter 12: "Continuous Operation" describes a business that is open to the public for some portion of each hour of the 24 -hours in a day and it also includes a business that is open to the public for more than 5 hours of the overnight period beginning at 11 pm and ending at 7 am. "Non- Continuous Operation" describes a business that closes to the public for at least five hours duration between the hours of 11 pm and 7 am each day of the week and which is not open for any portion of at least five continuous hours in a day. The "continuous operation" prevents a business from trying to close for one minute or a part of an hour and then declaring they are not remaining open continuously. The decision on 5 hours of continuous closing during the overnight allows a restaurant to stay open until 2 am and reopen for breakfast. A retailer could close any five of the hours during this time, as they chose. The public seems especially concerned about keeping late night, middle of the night traffic to a minimum so the emphasis is on closing overnight. Recently, residents at public meetings have requested the city not expand 24 -hour retail operations to the General Business zoning district besides the current Neighborhood Business and Shopping Center Districts. Concerns stated include: we are a bedroom community of young families who sleep at night, we do not have many shift workers needing this convenience so customers are likely to be those traveling into Andover reducing our usual quiet for homes near major thoroughfares, more lights are used when a business is open than when they are closed, night activity increases with lit parking lots and large parking areas are more difficult to monitor than small lots, and residents do not want to see our city code changed because they like the current character of the city. The City Council, Planning and Zoning Commission, a property owner or resident may propose a text amendment to the city code under Section A. of 12 -14 -4. The next step is for the staff to review the amendment, provide a memo to the planning commission, set up a public hearing before the planning commission and seek their recommendation, then schedule for discussion at a regular city council meeting. The time from proposal to the action at a Council meeting could be 3 weeks to 4 weeks. J. NB Neighborhood Business District: This district is used for retail sales and services in such scale as to serve the surrounding neighborhood needs. Locations for Neighborhood Business districts are typically small plots in close proximity to or surrounded by residential areas.... K. SC Shopping Center District: This zoning classification is reserved for modern retail shopping facilities of integrated design in appropriate locations. Locations for the SC district are larger plots that can accommodate more intensive retail development.... . L. GB General Business District: These are areas containing a wide variety of business uses including retail, service and semi - industrial. As such, they may contain businesses that tend to serve other business and industry as well as those catering to shopper needs. , W,& 6, Y A (E) 1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755 -5100 FAX (763) 755 -8923 • WWW.CI.ANDOVER.MN.US TO: Mayor and Council Members FROM: Jim Dickinson, City Administrator SUBJECT: Schedule October Council Workshop DATE: October 2, 2012 INTRODUCTION The Council is requested to schedule a Council Workshop for the month of October for a number of miscellaneous business items. DISCUSSION Potential agenda items for a general October workshop have been identified as follows: 1. 40 Acre Park (Tulip /1615`) Conceptual Discussion 2. Oak View Middle School Pool Discussion 3. 2013 -2017 CIP Implementation Discussion 4. 2013 Budget Development Update 5. 2012 General Fund Budget Progress Report 6. City Investments Review 7. Other Topics — dependent on October activities Other items may be added upon Council request or operational need. ACTION REQUIRED Schedule an October Council workshop for October 23rd at 6:00 pm or another date and time acceptable to the Council. submitted, Dickinson kC I T Y '^S 1, (2) 1685 CROSSTOWN BOULEVARD N.W. • ANDOVER, MINNESOTA 55304 • (763) 755 -5100 FAX (763) 755 -8923 • WWW.CI.ANDOVER.MN.US TO: FROM: SUBJECT: DATE: Mayor and Councilmembers Jim Dickinson, City Administrator Administrator's Report October 4, 2012 The City Administrator and Department Heads will provide a brief verbal update on various items of interest to the City Council and to the residents at the meeting. Listed below are a few areas of interest: 1. Administration & City Department Activities 2. Update on Development/CIP Projects 3. Meeting reminders Upon receipt of the meeting packet, if a member of the Council would like an update on a particular item, please notify me so an adequate update can be made. ,d, �%rso)v4,>,Subvvi \4 d Qr record CITY OF ANDOVER COUNTY OF ANOKA STATE OF MINNESOTA ORDINANCE NO. xxx AN ORDINANCE AMENDING THE CITY CODE TO ADD DEFINITIONS OF CONTINUOUS AND NON - CONTINUOUS HOURS OF OPERATION THE CITY COUNCIL OF THE CITY OF ANDOVER DOES HEREBY ORDAIN AS FOLLOWS: CITY CODE TITLE 12: ZONING REGULATIONS CHAPTER 2: RULES AND DEFINITIONS SECTION 12 -2 -2: DEFINITIONS "Continuous Operation" describes a business that is open to the public for some portion of each hour of the 24 -hours in a day. It also includes a business that is open to the public for more than 5 hours of the overnight period beginning at 11 pm and ending at 7 am. "Non- Continuous Operation" describes a business that closes to the public for at least five hours duration between the hours of 11 pm and 7 am each day of the week. CHAPTER 12: PERMITTED, CONDITIONAL AND PROHIBITED USES Twenty four (24) hour continuous operation of permitted uses Footnote #10 is hereby added to the above as follows: See 12 -2 -2 for definitions of "Continuous Operation and Non - continuous Operation ". All other Titles, Chapters and Sections of the City Code shall remain as written and adopted by the Andover City Council. Adopted by the City Council of the City of Andover on this 2 °d day of October, 2012. ATTEST: Michelle Hartner, Deputy City Clerk CITY OF ANDOVER Michael R. Gamache, Mayor