09-25-07 AgendaCITY OF RICHFIELD, MINNESOTA:
TUESDAY, SEPTEMBER 25 2007
SPECIAL CITY COUNCIL WORKSESSION
COUNCIL CHAMBERS -
6700`PORTLAND AVENUE
5:30 P.M'.
AGENDA
Call to order-
Roll call
5:30 -:6:15 p.m.
1. Discussion regarding proposed ordinance related to housing code, with #ocus on
occupancy provisions. (Council-Memo No. 175)
Notes: .
6:.15 - 6:50 g. m.
2. Oiscussion regarding proposed ordinance related to repeat calls to property for
nuisance conduct (Council Memo No. -176)
,,
Notes:
Adjournment
REGULAR.CITY COUNCIL MEETING
COUNCIL CHAMBERS
6700.PORTLAND AVENUE
7:00. P.M.
AGENDA
INTRODUCTORY PROCEEDINGS
' Call to order
Rohl-call
`.Open forum (15 minutes maximum)
• Each speaker is to keep their comment period to three minutes to allow sufficient Time for
others.. Comments are to be an opportunity to address the. Council on items`not on the agenda.
Individuals who wish to address the'Council must have registered prior to the meeting._
Notes:
r
Pledge of Allegiance ..
approval of minutes of {1 ).Special City, Council/HRA/Planning Commission Worksession of
September 11; 2007; (2.) Special City Council Worksesson of September 11, 2007;, and (3)
Regular City Council Meeting of September 11, 2007
PRESENTATION
1. Swearing-in of Richfield Police Officer Kristen Bullard
COUNCIL DISCUSSION
2. Council discussion..
• .Hats Off To Hometown Hits
Notes:
AGENDA APPROVAL
• 3. Council'approval of:agenda
CONSENT CALENDAR -
4. Consent Calendar contains several separate items, which are~acted upon by.the City
Council in one motion. Once the Consent Calendar has been approved, .the individual
items and recommended actions have. also been approved. 'No further Council action is
necessary. However, any:Council Member may request that an item. be removed from
the Consent Calendar and placed on the regular agenda for Cou-Heil discussion and
action. All items listed on the Consent Calendar are recommended for approval.
A. Consideration of approval of resolution. certifying delinquent sewer and water. utility
.accounts to County Auditor S.R. No. 240
B: Consideration of approval of resolution requesting -City Council to .call. for public
hearing on November 13,2007 to consider proposed adoptions. of modifications of
City Bella, Interstate-Lyndale-Nicollet, Interchange, Gramercy, Urban Village,
Interchange 1Nest/Lyndale Gateway, Richfield Rediscovered, Richfield
'Rediscovered II and Lyndale Gateway West tax increment financing districts S.R.
No. 241 °:
C. Consideration of approval of scheduling public hearing on October 23, 2007
regarding issuance of new on-sale intoxicating and Sunday liquor licenses with
optional.2 a.m. closing for Champps Operating Corporation d/b1a Champps
Restaurant, 790 West 66th Street S.R: No. 242
D. Consideration of approval of purchase of estimated 1,700 tons of winter deicing salt
for 2007/08 winter season from North :American -Salt Company, Overland Park, KS
in amount of $47.09: per ton, delivered, plus sales tax S:R. No. 243
E: Consideration: of approval of temporary on-sale 3.2 percent malt liquor license and
:public dance license for Church of the Assumption Polka Night on. September 29,
2007- S.R. No.-244 ` ,
Notes:
.`
5.. Consideration of items, if any, removed from Consent Calendar
Notes:
pUBLIG HEARING
6. Public hearing and second. reading of,transitory ordinance authorizing sale of 6744
Blaisdell Avenue to HRA for affordable home development.
Staff Report No- 245
Notes:
PROPOSED ORDINANCES
7. Consideration of second reading of ordinance relating to incorporation of statues by
' reference; updating, references to current building and fire code regulations; amending
.subsections 100.07; 400.03, 400.04, 400.11 and 400..21 of Richfield City Code; and
resolution authorizing summary publicationof ordinance
Staff Report No. 246 ~'
Notes: I
8. Consideration of second reading of ordinance regulating. open burning, recreational
fires; requiring perm-its; adding Section 921 of Richfield City Code and resolution
authorizing summary publication of ordinance
Staff Report No. 247
Notes:
9. Consideration of second reading of ordinance amendments to City Administrative Code
Chapter 11 Subsection 310.33,: Subdivision 1 describing vacation-..leave eligibility;
Subsection 310..43, _Subdivision 1 describing resignation; `and Subsection 310.51,
Subdivision 2 describing. candidacy leave of absence (tabled from. September 11, 2007)
..
Staff Report No. 248
Notes: ~'
10. Consideration of first reading of proposed amendment to Chapter IX o#'City-Code,
adding' new Section 935 regarding sale of spray paint and similar items and
scheduling second reading for No~ernber 13, 2007
Staff Report No. 249
..Notes:
.OTHER BUSINESS
11. Consideration of:
• plans-for 66th Street and Portland Avenue intersection reconstruction project,
City Project 41450, -and
• resolution for no parking on both sides~of Portland Avenue and 66th Street for-.
reconstruction of intersection
StafF Report No. ;250 .
Notes:
12.. Consideration of contract-for demolition between Roger.Peterson Construction and
City of Richfield for demolition and abatement of hazardous materials of properky at
6600 Oakland Avenue fo, prepare for 66,th Street and Portland Avenue intersection
' project and land rade with Tim Teachout (owner of T&T Automotive)
Staff Report No. 251
Notes:
13. Consideration of land exchange agreement between City of Richfield and Morris
Nilsen Funeral Chapel, Inc. for acquisition of land as part of 66th Street. and Portland
-Avenue intersection project ' '
Staff Report No. 252
Notes:
CITY MANAGER'S REPORT
Notes:
14. Claims and payrolls
Open forum (additional 15 minutes if more time needed after first Open Forum and by
majority vote of the City:. Council) ,
Each speaker is to keep (heir comment period to three minutes to allow sufficient time for
others..:Comments are to bean opportunity to address the Council on items not on the agenda.
Individuals who wish to address the Council must have registered prior to the meeting.
Notes:
15. Adjournment of Regular City Council Meeting
:.SPECIAL CITY COUNCIL WORKSESSION .
COUNCIL CHAMBERS
6700 PORTLAND AVENUE
IMMEDIATELY FOLLOWING REGULAR. CITY COUNCIL MEETING
AGENDA
Call to order _:
Roll call
1. Discussion regarding proposed community survey (council Memo No. 168)
Notes:
.2. Adjournment of Special City Council V1/ocksession
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Auxiliary aids for individuals with disabilities are available upon request. Requests must be
made at least 96 hours in advance to the City Clerk at 612-861-9738..-
REPORT PREPARED BY: ROBERT HINTGEN, ASSISTANT
UTILITY SUPERINTENDENT
NAME, TI7ZE
COUNCIL-.PRESENTER:
DEPARTMENT DIRECTOR ~ - ^ ~ - -
'REVIEW.
.REVIEWED BY CITY
MANAGER: /
ITEM FOR COUNCIL .CONSIDERATION:
Consideration of resolution certifying delinquent sewer and water utility accounts to the County
Auditor.
I. RECOMMENDED ACTION:
By Motion: Adop# the resolution certifying unpaid sewer and water
service charges to the-County Auditor to be collected with other taxes
on said ro erties.
IL BACKGROUND
Chapter VII of the Richfield. Ordinance Code..provides that unpaid water and sewer
charges may be certified to the County Auditor to be included in a property owner's
:annual propertyaax-bill. The Ordinance Code also authorizes a certificationfeeto;
be charged against each delinquent account. By certifying the delinquent .charges
#o the property taxes for the delinquent properties, the City is assured: of ultimately
cgllecting'the delinquent charges.
In 2006 the City. Council certified $143,954.57 of delinquent charges for-409
properties, an average cost of $351.97 per account. The 2007 certification currently
under consideration totals. $285,793.77 for 898 properties, an average of:$318.26
per account. Staff expects that, as in years past, many of the now delinquent
accounts will be. paid. before certification.
0925delinquent
III. BASIS OF RECOMMENDATION
A. POLICY I.
• State Statute and Chapter VII of the Richfield Ordinance Code provide
'. that unpaid water and sewer charges maybe certified to the County`
Auditor to be included in a property owner's annual property tax bill.
B. CRITICAL ISSUES
• Property owners owing. uti ity charges. will be notified in September
that failure to pay the amount owed.: will result in .certification to the
property owners' taxes.
C: .FINANCIAL _
• Throughout the year, the Utility-Division, bills and collects charges .for
water, wastewater and storm water from accounts within the City... The
charges include a 6.5% penalty on unpaid balances.. This penalty,is
paid quarterly against the. accrued unpaid balance: The delinquent
accounts must be certified to the County Auditor in order for`the City to
collect`the .charges through the property tax process. A $50
certification fee is charged to each account assessed to taxes. The
- assessment is spread over a :period. of one year at the rate of 8% per
annum.
D. LEGAL
N/A
IV. ALTERNATIVE RECOMMENDATION~S~
Do not approve the resolution. However, the certificatiort process is the only
process the City has to collect these delinquent accounts..
V. ATTACSIVIENTS
• Resolution authorizing. certification of unpaid sewer and water service
charges to the County Auditor to be collected with other axes on said
properties_
VI. PRINCIPAL PARTIES EXPECTED AT'MEETING
• None:
i
RESOLUTION; NO.
RES..OLUTION AUTHORIZING CERTIFICATIOfN OF UNPAIp SEWER:AND WATER
SERVICE CHARGES TO THE COUNTY AUDITOR TO,BE COLLECTED WITH
OTHER. TAXES ON .SAID PROPERTIES
WHEREAS, Ordinance-Code. 715 establishes rules, rates and charges forwater
service in the City of Richfield; and
WHEREA3,..Minnesota Statutes 444.075 provides that all delinquent water
service charges not paid maybe certified to the County Auditor and shall be collected
with other taxes, on such .property; and .
WHEREAS, Ordinance`Code 70.5 established rules, rates and charges for
sanitary: ewer service in the City of Richfield; and
WHEREAS, .Ordinance Code 705.19 thereof provides that all sewer services
charges not paid within 15 days after the quarterly due date may be certified to the
County Auditor with taxes against such-property, and shall be collected with other.-faxes
on such property; and -
WHEREAS, Ordinance Code 720 established rules, rates and charges for storm
water service in the City of Richfield; and
WHEREAS, Ordinance Code 705.19 thereof provides that all:storm water service
charges nqt paid may be certified to the County Auditor with taxes against such'
properties,-.and-shall be collected with other taxes on such property; and .;
WHEREAS, an assessment roll has been prepared specifying the amount; which
shall be certified against each particular property.
NOW, THEREFORE, BE 1T RESOLVED by the City Council of the City of
Richfield, Minnesota:..:.
1. There is hereby. determined to be a'totaC uncollected amount for water, anitary
sewer and storm. service.of$285,793.77.
2. That a $50 °certification charge shall. be levied against each delinquent account, such.
charges totaling $44,900.00.
3. That the above-described assessment be spread over a period of one year afithe
.rate. of 8% per annum..
4.. Thaf such amounfi be hereby certified to the County Auditor for collection with other
taxes-on said" properties.
5. That a copy of the resolution shal(be sent to the Hennepin County Auditor.
Adopted by the City. Council of the City of Richfield, .Minnesota this 25th day of
' September'2007.
- Debbie Goettel, Mayor
ATTEST:`
i
Nanc Gibbs Cit Clerk
y Y
I. RECOMMENDED'ACTION:
By'Motion: Approve a resolution requestingthe City Council to call
_for a public hearing on November 13, 2007 to consider: the proposed
adoptions ofthe Modifications of the City Bella, Interstate-Lyndale-
Nicollet, Interchange, Gramercy, Urban Village, In#erchange'
;West/Lyndale Gateway, Richfield Rediscovered, Richfield
`Rediscovered II, and Lyndale Gateway West Tax Increment Financing
Districts'..
II. BACKGROUND
Every yearthe Housing and Redevelopment Authority (HRA) completes an annual
Tax Lncrement Report, which is required by State Statue, for each Tax Increment.
092507 Call for PH-TIF Plan Mod
ITEM FOR .COUNCIL CONSIDERATION.:,
.Approve a resolution requesting the City Council to call for a public hearing on November 13,
2007 to consider the proposed adoptions of the' Modifications of;-the City Bella, Interstate-
Lyndale-Nicollet, {nterchange, Gramercy,.:-.Urban Village, Interchange:West/Lyndale Gateway,.
Richfield Rediscovered,`Richfield Rediscovered Il, and Lyndale-Gateway West Tax Increment
.Financin .Districts.
District-with activity. This report` is sen# to the Office of the State Auditor (OSA) for
review and comment.
,: _
These reports contain a section that presents by-line item the proposed districfi
budgets and compares them to the actual district revenues and expenditures. The
reports present the fnancial activity starting--from the creation of the district and
ending in the last budget year.
The OSA has=given guidelines as to how the budget and accounting sections
shouldbe reported. The objective of this modifications to adjust the line item
district budgets and the actual districf revenues and expenditures, so they reflect the
current OSA guidelines.
This modification does not increase any of-the Tax Increment Districts' budgets, ,
revenuesor expenditures. It also does not increase the erm orsize of any:of the
districts. It is a technical modification.
IIL BASIS OF RECOMMENDATION -
A. POLICY-
•: It has been the direction of he City Council and HRA o follow any and
all of the OSA policies and guidelines.
• - The HRA approved the request for the City Council to call for a public
hearing.. at their September 17th meeting.
. • The Planning Commission will review the :Modifications at their
October 22nd meeting.
B.: CRITICAL ISSUES
• By not modifying the line item budgets, revenues or expenditures of
he Tax Increment Districts, it may: resultin a finding of .noncompliance
-from the OSA in the future.
C. ' FINANCIAL
The City and HRA's financial advisor, Ehlers and Associates, has
reviewed the proposed .modification and.-has stated-that the approval
of this modification will not have any financial-impaction the City or
HRA.
D,. LEGAL
• The City and HRA's legal counsel, Kennedy & Graven,. has reviewed
the proposed modification and have stated that the approval of this
modification will not have any legal impact of the City or;HRA.
IV. , ALTERNATIVE. RECOMMENDATIONS
• Do not recommend that the- City :Counsel. hold. a public. hearing.
V. '' ATTACHMENTS
• Resolution
• AL PAlZTIES EXPECTED AT MEETING
VI. PRINCII'
• ~ 'Sid Inman, Ehlers & Associates
. RESOLUTION NO.
RESOLUTION AUTHORIZING A PUBLIC HEARING BY THE .:..CITY
COUNCIL ON THE PROPOSED MODIFICATION OF THE RICHFIELD
REDEVELOPMENT PROJECT AREA AND THE MODIFICATIONS OF THE
CITY BELLA, INTERSTATE-LYNDALE-NICOLLET, INTERCHANGE,
GRAMERCY, URBAN VILLAGE, INTERCHANGE WEST/I:YNDALE
'GATEWAY,`RICHFIELD REDISCOVERED, RICHFIELD REDISCOVERED II,
AND' LYNDALE GATEWAY. WEST TAX .INCREMENT FINANCING
DISTRICTS. (REDEVELOPMENT DISTRICTS).
BE IT .RESOLVED by'the City Council .(the "Council") for the City of Richfield, Minnesota
(the "City").as follows:
Section 1. Public Hearing. This' Council shall meet on November. 13, 2007, at approximately
7:00 PM, to hold a public hearing on the proposed Modifications of the .City Bella, Interstate-Lyndale-
Nicollet, Interchange,... Gramercy, Urban Village, Interchange West/I,yndale Gateway, Richfield.
Rediscovered, Richfield Rediscovered II, and Lyndale Gateway West Tax Increment Financing Districts,
all pursuant to and in accordance with Minnesota Statutes; Chapter 469, in an effort to encourage the
development and,redevelopment of certain designated areas within the City; and
Section 2 °Notice of Public .Hearing Filing- of Plans.. City staff is authorized and directed to
work.-with"Ehlers`&. Associates; Inc., to prepare 1Vlodifications of the City Bella;.. Interstate-Lyndale-
Nicollet, Interchange, Gramercy, Urban Village,. Interchange West/Lyndale Gateway; Richfield
• Rediscovered, Richfield Rediscovered II, and Lyndale Gateway West Tax Increment Financing Districts.
The Community. Development Director is authorized and directed to. cause notice of the hearing, together
with an appropriate map as required by: law, to be published at least once in the official .newspaper of-the
City not later than l 0, nor more -than 30, days: prior to November d 3, 2007; and to place a copy. of the Plan
on filer in the Community Development Department at City Hall and to make such copy. available for
inspection by the public.
Adopted. by the City.. Council of the City of Richfield, Minnesota this 25th day of September,
2007.
Debbie Goettel, Mayor
ATTEST::
Nancy Gibbs, City :Clerk
. .
ITEM FOR COUNCIL CONSIDERATION:
Consideration of the issuance of new on=sale intoxicating and Sunday liquor licenses with
optional 2 am. closing for Champps Operating Corporation d/b/a Champps Restaurant, 790
W. 66th Street.
I. RECOMMENDED ACTION:
By Motion: Approve a public hearing to be held October 23,..2007, for
the consideration of new on-sale .intoxicating and Sunday liquor
licenses with optional 2 a.m. closing for Champps Operating
Cor oration d/b/a Cham s Restaurant, 790 W. 66th Street.
IL BACKGROUND
Applications for new on-sale intoxicating and Sunday liquor licenses with optional 2
a.m: closing for Champps Restaurantwere received by the Gity on August 24,
2007:
City ordinance-,provides- that the City Council must conduct a public hearing to.
consider all intoxicating liquor license applications and that a date be set-for the
public hearing prior to the haring:
0925 Set PH Champps New Liquor Licenses with 2 a.m. Closing
-III. BASIS OF RECOMMENDATION
DEPARTMENT DIRECTOR
REVIEW:.
S/GNATURE
REVIEWED BY CITY ~ ~ i
MANAGER:.
ITEM FOR COUNCIL CONSIDERATION:
Consideration of purchase of winter deicing salt.
I. RECOMMENDED ACTION:
By .Motion: Authorize the purchase. of an estimated 1,700 ton of winter.
deicing salt for the 2007/2008 winter season from North American Salt
:Company, Overland Park, KS at the price of $47.09 per ton, :delivered,
r,l~~~ ~~Inc taer
AGENDA SECTION: CONSENT
AGENDA ITEM # 4E
_ REPORT # 244
STAFF .REPORT
CITY COUNCIL MEETING
SEPTEMBER 25,' 2007
BETSY OSBORN, ADMINISTRATIVE
REPORT PREPARED BY: SUPPORT SERVICES 1VIANAGER
.NAME, TITLE
COUNCIL PRESENTER:,: .
DEPARTMENT DIRECTOR ~(
REVIEW: - ;,
SI ATURE
REVIEWED BY CITY
MANAGER:: /
•
ITEM FOR COUNCIL CONSIDERATION:
Consideration of the request by The Church of the Assumption -for a-temporary on-sale 3.2
percent malt liquor license and a public dance license for their Polka Night to be .held
Se tember 29, 2007.
L RECOMMENDED ACTION:
By Motion: Appirove the following .licenses for, The Church of the
Assumption Polka Night #o beheld on September 29, 2007:
• A temporary on-sale 3.2 percent malt liquor.license; and,
• A ublic dance liceinse,
II. BACKGROUND.
On August 31, 2007, The Church of the Assumption submitted a request for a
temporary license to serve 3.2 percent malt liquor. They. also submitted a request
fora public dance license for their Polka Night to be held September 29; 2007. The.
required licensing fees have been :received.
ickles otato chi s-coffee
• They will be serving such-food -items as sloppy joes, p , p p
and soda. The Church of the Assumption has contacted food santarians from the
-.City of Bloomington to ensure that proper food. handling practices are followed.:
0925Church of the Assumption Polka Night
Licensing requirements for the preparation -and service of food for this event is
covered under The Church of the Assumption's annual food license.
-:The evenf will take place from 6 P,M, to 12 A.M. (rnidnight).
Liquor Liability-.insurance coverage has been provided showing The Cathglic Mutual
Relief Society as affording the coverage:
`The Public Safety Department has received no complaints regarding similar events
for the Church of the Assumption-:for the previous year.
III. BASIS OF RECOMMENDATION
A. POLICY`
The applicant has complied with the City codes pertaining to these
licenses.
B. CRITICAL:ISSUES
• Necessary fees have been paid: and insurance coverage has been:..
submitted..
C. FINANCIAL
• • N/A
D. LEGAL -
• N/A
IV. ALTERNATNE RECOMMENDATION~S~
• Deny the .request. However, the Public Safety Department has not-found .any
basis fora denial. In addition, the Council h'aspreviouslygrsnted similar
licenses for The Church of the Assumption events.
V. ATTACHMENTS
• N/A'
VI. PRIivCIPAL PARTTES EXPECTED AT MEETING
• The Church of the Assumption staff/representative
~' ITEM FOR COUNCIL CONSIDERATION:
Public hearing and second reading of a Transitory Ordinance authorizing the sale of the
ro ert at 6744: Blaisdell Avenue to the Housin and Redevelo merit Authorit
IL BACKGROUND.;
Both the Housing and Redevelopment Authority (HRA) and City CounciF have '
previously approved the purchase of this property from the private owner using:
Community Development Block Grant (CDBG) funds . Built in 1929, the house is a
440-sq. ft. rambler-and is in need of considerable repairs. The lot is 47 x 128' ft.
-When CDBG funds are used, 'the City acquires the property and then. sells he
property;fior $1 to the HRA. If the Cityacquires the property first, any program
-income (i.e. repayment of second' mortgage) carr be retained by the HRA for
housing programs:: if the HRA purchases the property directly, program income
must be paid back to Hennepin-County.
092507 2nd Reading -6744 Blaisdell Acq
I. RECOMIYIENDED ACTION:.
Conduct and close the public hearing and by motion: approve
second: reading of a Transitory Ordinance authorizing the sale_of 6744
Blaisdell to the Housing and Redevelopment Authority #or affordable.
home develo merit.
III. BASIS OF`RECOMMENDATION
. _ _
. A. POLICY ,
• The use of CDBGfunds to buy small substandard houses-and to
construct an -affordable new home with a nonprofit developer has been
a'successful program model for the HRA thaf the City fias supported.
• In November 2006 the Planning Commission #ound the acquisition
and disposition of 6744 Blaisdell Avenue for single- family housing
purposes consistent with the' Comprehensive :Plan.
• The HRA approved the acquisition on August 20, ,2007.
• The City Council approved the acquisition on September 11, 20Q7.
• The City conveys property to the HRA through. a Transitory
Ordinance/Public Hearing process: l"he first reading of the Transitory
Ordinance occurred at the September 11, `2007,-Council. meeting.:
8, CRITICAL ISSUES:
• Acquisition:#or demolition and redevelopment on sites scattered:.
throughout Richfield have been well. received.. The neighborhood. will.
be invited to participate as the new housing concept i5 developed..
• Avery small house with no remodeling potential will be replaced with
a `newly constructed three to four bedroom house.
• The use of CDBG funds requires that a household with an income less
• than 80 percent of median income be served.,. A family of four would
need to have`an income of less than:$59,OOOao qualify.
C FINANCIAL
• ~ - `No City. General Fund revenues would be used for_this transaction.
• The sale to the HRA is for $1:
D. LEGAL-
• Legal counsel will be utilized in conveying the property from the City to
the HRA.
IV, ALTERNATIVE'RECOMMENDATION(S~
• Do not authorize the sale of the..property to the HRA.
V. ATTACHMENTS`
• Transitory Ordinance-
VI. PRINCIl'AL PARTIES EXPECTED AT MEETING
• N/A
,' i
~i
AN ORDINANCE AUTHORIZLNG AND PROVIDING FOR THE ;SALE; TRANSFEROR
OTHER DISPOSITION AND CONVEYANCE OF CERTAIN CITY OWNED REAL
PROPERTY,LOCATED IN THE CITY OF RICHFIELD, COUNTY OF HENNEPIN,
STATE OF MINNESOTA (6744 BLAISDELL AVENUE)
The City of Richfield' Does Ordain: -
Section 1..
The #ollowing described real properties located in the City of,Richfield, County of
Hennepin; State of Minnesota, are hereby authorized to be sold, transferred or otherwise
disposed of and conveyed by the Cityas herein provided:
6744 Blaisdell Avenue South
Lot 3, Block 2, Oaklane Addition,: Hennepin County
Section 2.' -
The Mayor and .city Manager arehereby authorized to take all action as is: required to sell,
transfer; or otherwise dispose of and convey;the real property described in the foregging
Section 1, including, by way of illustration and not limitation; the execution of,all
documents,, purchase agreements, deeds of conveyance, and other `instruments
connected: with such sale, Transfer or disposition and conveyance.."
Passed this 25th day of September 2007 by the` Richfield City Council
Debbie Goettel, Mayor
ATTEST:
Nancy`Gibbs, City Glerk
092507 2nd Reading-,.6744 Blaisdell Acq
..CITY COUNCIL. MEETING
.SEPTEMBER 25, 2~U7 ;
ITEM FOR COUNCIL`CONSIDERATION:
Cpnsideration of second reading of proposed changes of;an ordinance relating to incorporation.
of statutes by reference, updating references to current building and fire code regulations and
amending subsections 100..07, 400.03,-400.04, 400.1.1 and 400.21 of the Richfield City Code
and resolu#ion authorizin -summa ublication,ofi the ordinance..
L RECOMMENDED ACTION:
By Motion: Approve the second reading of proposed ordinance
relating to incorporation of statutes by reference; updating references-
to current building and fire code regulations; amending subsections
100.07, 400.03, 400.04, 400.11 "and`40021 of the Richfield City Code;
and resolution authorizin summa ublication of the ordinance.
II. BACKGROUND
The. Minnesota Building Code has been adopted by Minnesota Stafutes.Section
168.61 as a uniform building-code. applicable throughout the State. This ordinance
relating to building and fire code enforcement adopts the Minnesota State Building
Code and` Minnesota State by reference; and amends, adds. and repeals various
subsections of Sections 100 and 400 of the :Richfield City Code. The first reading.
was approved' bythe-City Council on September 11, 2007.
0925FireCode
The attached resolution. approves the summary publication of the ordinance.
III. BASIS OF RECOMMENDATION
A,. POLICY
• Minnesota. State Statutes adopted the State Building Code as a
Building .Code applicable throughout the State....
• It is mandated that the City Building Code is in'cornpliance with: and
incorporates changes made to the Minnesota State Statutes.
~• _ This revised ordinance adopts` he Minnesota Building Code and the
Minnesota Fire Code by reference:" amending and repealing various
subsections of Section'-100 and Section 400 of the Richfield City
Code.
$.. CRITICAL ISSUES.
• Richfield City Codes must be in agreement with;the State Building and
Fire Codes. The wording of the attached ordinance references`and
incorporates the-State Building Code and the State Fire Code
throughout Sections 100 and 400 of-the Richfield City Code.
C.: FnvANCAL
• The fee. schedule for building and fire permits is not changed.
D. LEGAL
• The Richfield City Attorney has reviewed and prepared the attached
ordinance.
IV. ALTERNATIVE`RECOMMENDATION~S~
• There is no alternative recommendation because the Cty,and State codes
- must be in agreement.
V., ATTACHMENTS
• Ordinance
• Resolution
VI. PRINCIPAL PARTIES EXPECTED AT MEETING
• N/A
:'
-t
BILL. NO.
. AN ORDINANCE RELATING TO INCORPORATION OF
STATUTES BY REFERENCE; UPDATING REFERENCES TO CURRENT
BUILDING'AND FIRE CODE-REGULATIONS; AMENDING
SUBSECTIONS 100.07, 400.03, 400.04,.:400.11 AND 400:21
OF THE'RICHIFELD CITY CODE
-THE CITY OF RICHFIELD DOES ORDAIN: -
Section: 1. Subsection 100.07 of the Richfield City Code is amended to .read as
follows:
Official-statutes, codes, regulations, and .ordinances. References in this -code
to "Minnesota Statutes are to Minnesota .Statutes 2DII4 :2006; Minnesota
Statutes, 2.0.05 2007 -Supplement and -Laws of .Minnesota 2aD5__2007, unless ,
otherwise provided in this code. References in this code to rules and
: regulations of tate agencies, nodes, and ordinances of other municipalities
area to those documents in effect on -!~ ~i...T-1, ~nn~ August 1, 2007, unless
otherwise- provided in this code.
Sec. 2. Subsection 400:03, subdivision 2 of the Richfield City Code is amended to
read: as follows: -
Subd. 2. -Building code Optiona( Chapters. The following optional.
provisions identified in the most current edition of the. State Building Code are
hereby adopted by reference .and incorporated into this code as if fully set out
at this point:
{a) .Chapter 1306, Special Fire Protection. Systems;: 1306..0020
S.ubp. Subpart 2 (existing and-new buildings)
2; ,
(b) [:hantAr 13,5, FloodTrnnfing RPgulatiar~TPartc-1.. ~ti Hann
thrni inh 1 ~~~ 17(1(1 ~/"@ ea/eCl~
(c) Optional Appendix Chapter K J of the 2DD2 2006 International
Building-Code ,
Sec. 3. Subsection 400:04 of-the Richfield City Code is amended- by adding a new
subdivision 4 to read as follows and by renumbering subsequent subdivisigns accordingly:
Subd. 4.'' Completion of Exterior Work.
(a) Any person altering, repairing, rernodeling or adding to the
exterior portion of asingle-family dwelling ortwo-family dwelling
including an attached or detached- garage or accessory
structure, shall complete' all exterior work wifhin one year- from
-the date of issuance of the building permit: Completion, of-work ,
includes completing the structure-and exterior finishes-(including
-~.
but not.limited:,to id'ing, windows,'roofing, driveways, :retaining
walls; decks and patios). _
(b) Ifi a building is .damaged.-by fire or by other casualty or cause
" ': and the roof or exterior finishes are damaged or destroyed,'the
damaged materials shall be completely restored- or replaced-
with-.exterior building materials. permit6ted bv` the Minnesota
stafe building code and < his code as soon as reasonably
possible, and in .any event within 12 months after the damage or
destruction.
(c) In `the case of demonstrated hardship due to sources beyond
the control- of the ° property owner (including but not limited to
extreme weather conditions; ..reasonably unforeseen shortages
of material, ;;eauiprnent or labor;- vandalism; or theft), the time
allowed far: exterior construction and finishes may be extended
. at the` sole. discretion of the building officiaF and upon. written
appeal filed as soon' as the -need for an extension. becomes
known.
Sec. 4. Subsection 400.11, subdivision 1,of the Richfield- City Code is amended to .
...read as follows:
Subdivision 1'. -Procedure upon .:.application. The procedure. for::
•: issuance of building ,permits shall be` as provided in; i i R r. rnantar ~ ac
Minnesota Rules .chapter 1300.
Sec. 5. Subsection 400.11 of the Richfield City Code is amended by adding a new
subdivision as follows:
Subd. 4. Duration of Permit. In .addition to the expiration provisions of
Minnesota Rules 1300.0120, aubpart 11, _every permit' -issued under this
section with a permit fee of three thousand dollars or less-will expire and '-
become void one year after the date it is` issued. In order: to renew action on a
permit after expiration, the permit holder must pay a new full permit fee.
Sec.. 6. Subsection 400.21 of the. Richfield City Code isamended #o -read as'
follows:
400.21.. Fire prevention code: adoption of fire prevention code. The Minnesota
State Fire Code, as adopted by the state commissioner of public safety, is hereby
adopted'by reference as #hough fully. set-out in' this subsection, with the following
amendments:
Tam artinn 1f1R 1 of tha Intarnc~tlLlnal Fired=ode is xe~tadnP.(~ ~n itc ~gtira
re Baled
(b) Section 3DZ 308 of the. International Fire Code is retained in its entirety.
~-- 3
~~~
RESOLUTION. NO.
RESOLUTION AUTHORIZING SUMMARY .PUBLICATION OF BILL N0.2007-
WHEREAS, THE City has adopted the above referenced amendment`to the.
Richfield City Code; and
WHEREAS,--the verbatirn text of the amendment is cumbersome and he expense. -
of publication of the complete text is nofi justified.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Richfield
` that the following. summary. is hereby. approved for official :publication:
SUMMARY PUBLICATION
BILL N0.2007-
AN ORDINANCE'RELATING TO INCORPORATION OF
STATUTES BY REFERENCE.; UPDATING REFERENCES TO CURRENT
BUILDING AND FIRE CODE REGULATIONS; AMENDING
-SUBSECTIONS 100,07, 400.03, 400.04, 400.11 AND 400.21
OF THE RICHIFELD CITY CODE
On September 25, 2007 the Richfield: City Council adopted an ordinance designated
as Bill No. 2007-, the title `of which; is stated above. This summary of the ordinance is
published: pursuant to Section 3.12 of the Richfield- City Charter. The ordinance adopts by
...reference--pertinent provisions of the State building Code and the State fire Code. The
ordinance also requires -the completion of dxterior work on structures to be completed
within one year. after issuance of building permit, subject to certain exceptions. Permits
issued for a fee of less than $3,000 become void one year after issuance. Copies of the
ordinance°areaavailable for' public inspection in the office of`the City Clerk during normal-
- busness.hours.or upon request by calling;612-.86.1-9860 of the: Public :Safety Inspections
Division.
Nancy Gibbs, City Clerk
BE IT FURTHER RESOLVED,. that -the city clerk `is directed to keep a copy of the
` ordinance in her office at,cify hall for public inspection and to post a fullcopy of the `
ordinance in a public' place in the City. for aperiod- of two weeks
Adopted: by the: City: Council of the City of Richfield, Minnesota this 25th- day of
September, 200:7.
Debbie Goettel, Mayor
ATTEST:..
Nancy Gibbs, City Clerk
.'
•
`~ ITEM FOR COUNCIL CONSIDERATION:
Consideration of second reading, of the: proposed ordinance regulating open-.burning,,..
recreational fires, requiring permits and of resolution authorizing summary publication of the ---
ordinance.
ublication of the ordinance. ''
IL BACKGROUND
For several years open burning and recreational fires have been regulated by
individual municipalities. The Minnesota Fire Code regulates-:recreational fires only
as to the size of the fire and the distance from other structures. Types of materials"
burned and hours of burning have been regulated-only by an administrative policy
of the Richfield Fire Department. This administrative policy has had no enforcement
provisions associated with it. This ordinance will-establish Legally,enforceable limits
and regulations as to when open burning orrecreational fires may be conducted.
The first reading was approved by the. City Council on September 11, 2007. The -
attached,resolution approves.summary publication of the ordinance:
0925RecFire
I. RECOMMENDED ACTION:
By Motion:,. Approve second .reading of the. proposed ordinance
regulating -open burning; requiring, permits; adding section 921 of the
Richfield City Code,.-.and the iresolution authorizing summary
~/
BILL NO.
AN ORDINANCE REGULATING OPEN BURNING;
REQUIRING BURNING PERMITS; ADDING.-
SECTION .921 OF THEN RICHFIELD CITY CODE .
THE CITY OF`RICHFIELD DOES ORDAIN:
Section; 1. Chapter 9 of the Richfield City Code is :amended- by adding a new
section to read as follows:
Section 921 =Open Burning Restrictions.
921.01. Purpose. The purpose of this section is to promote 'the, general health,
welfare and safety by regulating open burning within the City of Richfield.
921.03.Definitions: 'Subdivision 1., .The following words and terms,.-when used in
this section, shall .have the following meanings- unless -the context clearly indicates
otherwise:
Subd. 2'. "Fire Marshal" means the:City of Richfield employee appointed by
the city manager as fire marshal.
Subd. 3. "Open burning" means a fire burning in matter, whether
concentrated or~ dispersed, .which' is not contained within a fully: enclosed firebox,
structure or vehicle and from which the products of combustion are emitted directly
to the open atmosphere without passing through. a stack, duct or chimney.
. Subd.:' 4. "Recreational- fire" means a fire set for cooking, warming or
ceremonial purposes.
921.05. Open Burning Prohibited Except by Permifi; No person may cause, allow,
or permit open burning within the City except as-provided in this section:
921.07. Exceptions to Open Burning Prohibition. Subdivision 1. .Open-burning of
the, types, and subject o the conditions, as stated in the :following subdivisions, is
exempt from the prohibition in subsection 924.05 of this code:
-Subd. 2. Recreational fires. - .Recreational fires are allowed in accordance
.with all of the following conditions:
5
a. Fires must comply with the Minnesota Fire Code requirements;
b. Fires must be conducted only .between - the hours of `noon _ and
midnight;
c. At leash one .person 18;years of age. or .older must be in attendance at
all times until the fire is extinguished;-
- d. At least one portable fire extinguisher with a minimum 4-A rating, a'
charged garden hose, or afive-gallon pail. of dirt or sand must be
available at all times until :the fire is extinguished; -
e. "Fires must be extinguished to the. point of cold before being left
unattended.
f. Fires. must not be more than three feet in diameter or.-two feet in
height;
g. ..Fires must be contained in a fire. pit. or enclosure. that is constructed
from brick, masonry, metal or other noncombustible material;
h: - Fires must be located. at least 25 feet away from any combustible
structure, except that fires in a manufactured container may be
/~
located no less than 15 feet. away. from a ,combustible structure thafi is
located on the same property;
i. Only dried wood ..from 'trees or small branches -or charcoal may be
burned; no trash, yard debris, .construction debris,, plastic, or treated,
:pained, varnished or otherwise coated materials may. be burned;>and
J. Fires must be immediately extinguished when ordered by a firefighter
or .police officer. A ;firefighter or police _' officer may. order any. `
recreational.: fire to be extinguished if the fire poses a nuisance to
;surrounding residences. A: nuisance is deemed to exist if the fire
generates flying embers that pose a hazard to property. or generates
smoke or odors that unreasonably interfere with the use or enjoyment
of neighboring, properties.
Subd. 3, Fires under managed supervision, for which a burning permit. has
been obtained from the fire marshal and,::- where required; by ;state law, from ;the
pollution control agency. or department of natural .resources," but limited to the
following:.
a: Fires purposely; set ,for the instruction and raining of public and
industrial fire fighting personnel.
b. Fires set for the elimination, of a fire hazard which cannot be abated 6y
:another other practicable means.
c. Fires purposely set for forest~and game- management purposes..
d. The burning of trees,.brush, grass and: other vegetation in the clearing
of land, the maintenance of streef, road and ...highway rights. of way,
and in accepted agricultural land management practices.
Subd. 4. An: exception to conduct open burning under this subsection does
not excuse a person from the consequences, damages, or injuries which may result
therefrom, nor does it exempt any person from- regulations 'promulgated by the
Minnesota pollution control agency or ;any :other governmental unit exercising
jurisdiction in matters of pollution or fire hazard regulation.
921.09. Penalty. Violation of this section is a misdemeanor under Minnesota law.
Sec. 2. This ordinance is effective in accordance with Section 3.06 of the Richfield
City Charter.
Passed by the City Council of the .City .of Richfield, Minnesota- this day of
;, 2007.
v
.:_~~ .
Debbie Goettel, Mayor..
ATTEST:
..Nancy Gibbs, City Clerk.
• ~
.,
g
RESOLUTION NO.
RESOLUTION- AUTHORIZING SUMMARY PUBLICATION OF BILL NO. 2007-
WHEREAS, THE City has adopted fhe above referenced amendment to the
Richfield>;City Code; and
WHEREAS, the verbatim text of the'amendment is cumbersome.and the expense.
of publication of the complete text is not justified. -
-;NOW, THEREFORE, BE IT RESOLVED_by the City Council of the: City of Richfield
that the following summary is hereby approved for official publication:
SUMMARY PUBLICATION
BILL NO. 2007-
'. AN ORDINANCE REGULATING OPEN BURNING; REQUIRING PERMITS;
ADDING SECTION 921 OF,THE°RICHFIELD CITY'CODE
On September 25, 2007 the Richfield City Council adopted an ordinance designated
as Bill No. 2007-, the title of which is stated above. This summary of the,ordinance is
published pursuant to Section :3.12 of he Richfield City Charter. The ordinance adopts
restrictions and. regulations: of open burning including, recreational fires. Copies of°the
ordinance are available for;publc inspection. in the office of the city Clerk"during normal
business-hours or upon requesf by calling 612-243-4503 of-the Richfield Fire Department.
Nancy: Gibbs, City Clerk
BE IT FURTHER RESOLVED; that the city clerk is directed to keep a copy of the
ordinance in .her office at city halt for public inspection: and to post a full copy of the
ordinance in a public place, in the City for a period of two weeks
,: Adopted; by the City Council of the City ofiRichfield, Minnesota this25th day of
.September, 2007.
Debbie Goettel,-Mayor
ATTEST:.
Nancy Gibbs, City Clerk
•
ITEM FOR COUNCIL CONSIDERATION:
Consideration of second reading of amendments to the. City Administrative Code ChapterLll,
Subsection 310'.33, Subdivision 1' describing vacation leave eligibility, Subsection 310.43.
Subdivision 1 describing resignation and Subsection 31-0.51 Subdivision2 describing
candidac leave of absence tabled from Se ternber 11;:'2007 .
I. RECOMMENDED ACTION:..
By Motion.: Approve the'second reading of'the proposed ordinance
amendments to the•City:Administrative;Code Chapter-III for the
foFlowing. subsections:
1) Subsection 310.33, Subdivision 1-, describing..vacation leave
eligibility, and
-- 2)' Subsection 310.43, Subdivision 1, descrbing,resignations, and
3) Subsection 310.51, Siubdivision 2, describing candidacy leave of
absence..-
-Tabled fran September.11, 2007
IL BACKGROUND.
Under current` City'Administrative Code, Chapter L)I, Subsection 310.33, Vacation
leave Subd. 1, .Eligibility, employees are not eligible to use accruedvacation leave
~, until after' completing six months ofi employment with the City.. Because recent case
.law has deemed it illegal to withhold accrued, unused leave from employees upon
. separation, staff is'proposing to eliminate the Subd. 1 exception and allow regular
and full time employees to use accrued vacation leave at any time during their
employment without any. specifc waiting period...
0925AdrninCode
At the>September.11, 2007. Regular City Council,Meeting, this.item wastabled as at
` least one Council Member requestedfurtherin~ormation regarding;the court case
.that is fhe basis of the proposed change .and additional information about the leave
~of absence provision for candidates for public office. Additional information has
:been provided`and'staff can. discuss these changes further if `the City Council
wishes to do so.
- The proposed change to Section 310.33, Subd. 1 is as follows: .
310.33 Vacation leave. Subd. 1, Eligibility. Regular employees and full-time
employees shalt be eligible for vacation leave upon accruaC Px~Pnt that nn
The second proposed ordinance change to Subsection 310:43 Termination, Subd. 1
Resignation, also is an adjustment to City Code in deference to thee-same case law
referenced ,previously that makes it llegal;to,withhold .accrued benefits from-
employees who are either terminated or resign:
The, proposed change to Section 310:43, Subd. 1 is as follows:
310.43,Terminations, Subd. 1 Resignation An employee wishing to leave the
municipal service ih good standing shall file'with the employee's supervisor or_
department head, at least 14 daysbefore leaving.,. a wrtten`resignation stating"the
effective date of the resignation and the reason for leaving. ,Failure: to comply with
-this procedure may be considered cause for denying such employee future
• employment by the Clty and rlan~ in,~ arminal ~,iaratinn hanafitc, llnauthOrlZed
absence. from work for-a period of three or more working. days may be considered
by a department head as a resignation
The third proposed ordinance change is to :Subsection 310.51 Political activity;
- Subd: 2 Candidacy: leave of. absence: Effective July 1, 2007, staff adopted a new
personnel policy (see attachment) to establish clear and reasonable guidelines for
employees who choose to participate: in political activities while employed by:the
City. While the City supports employee political participation;, it is essential that
such activities do not interfere with the performance of an employee's job nor be
::associated directly;with the City.
In;order for the City Code to be in alignment with the Political'Activitypersormel
policy; and recognizing that current administrative code unduly penalizes staff from
participating in the political process, staff is recommending the elimination of Subd. "
2 Candidacy: leave of absence. The proposed ordinance change is as follows:
III. BASIS OF RECQMMENDATIQN
• A. POLICY
• l"he proposed modifications fio Subsection 310:.33, Subd. 1 and
Subsection 310.43, Subd. 1 bring the City's administrative code into
compliance with State law and makes it-more consistent with the
:.provision allowing employees to receive their accrued,-unused
vacation leave upon separation of employment.
• • .The proposed elimination of .Subsection 310.51., Subd: 2 provides
.:employees. with the opportunity to become a candidate for political
office, without requiring a leave of absence without pay, as long as the
guide Ines established in the City's Polticai Activity personnel policy
-:are followed:
8. CRITICAL ISSUES
• The'first reading of the proposed ordinance amendments was .held at
he regular City Council meeting of`August 14, 2007 and he second
- reading was scheduled for September 11, 2007.
C. FnvaNClaL,
• By amending Subsection 310.33, Subd, -1, employees will.. be able to
use his/her vacation leave upon accrual without a six month waiting
period. At this time, the "maximum amount of vacation-leave accrued
by an employee during the first six-months of employment is six days:
• By amending. Subsection 310:43, Subd. 1, employees who resign
_ employment with the City without providing 14:days notice or who
effectively, resignbecause of an unauthorized. absence, will receive
-any unused, accrued leave.
D: LEGAL,
- • In order to;cornply with State law and align with the City's personnel
policies, it is important to make these ordinance adjustments in a
- timely manner.
IV. ALTERNATIVE RECOMMENDATION~S~
• Do not amend each ordinance: However,. there.are Sate law compliance
..issues: as well as the desire to align the City's administrative code-with
updated. City policies.
• Defer discussion_ until another_date: However, it is important to act in a timely
manner regarding these issues.
V. ATTACHMENTS
Ordinance ,
• ~ Political Activity personnel-policy
• Kennedy & Graven memo
• Minnesota Lawyer Court of Appeals case -
VI. - PRINCII'AL .PARTIES EXPECTED AT .MEETING
• ' None
~'-
BILL NO.
POLITICAL ACTIVITY
~'~
- CITY OF RICHFIELD
PERSONNEL POLICY
DATE: July 1,.2007 '
SUBJECT: Political-Activity
Introduction
The purpose of this policy is to recognize the importance and right of employees':to participate in the
political process while establishing importantpararneters for exercising this-right during their course of
..work with the City of Richfield.
Political Activity
As individuals, employees may express opinions on political issues and: candidates during off-work hours
when not discharging .City functions;-they may otherwise participate in public affairs but only to the
extent that such endeavors: do not impair the neutral .and efficienf pertormance of official duties or create
real or apparent conflicts: of interest.
Employees are prohibited from directly or indirectly,;during their hours of employment, soliciting or
receiving funds or at any time using their authority or official influence to compel any officer or employee
to apply for membership in or become- a .member of-any organization, or, to pay or'promise to pay any
assessment, subscription; ;or contribution, or to take part in any political ;activity. Employees are
prohibited from using their position of municipal employment to influence, interfere with, or affect an
election campaign or the results'of an election.
Employees may not engage in political activitywhile on City time or while discharging City
responsibilities;. normay they act in a manner thaf suggests that the City either- supports a particular
'..candidate or poltical_issue or endorses the personal political opinions.of the municipal employee. Any
act; which tends to identify-..the City with any candidate of political issue, or which otherwise tends to .
.undermine the public,perception of the-City as a politically neutral and impartial body, is prohibited.
Use of City vehicles, facilities, equipment, or other resources while engaging. in politicalactivities is not
permitted. This restriction does -:not apply to municipal resources available to -the public at large for-use
in connection with political activities, such as the use: of meeting rooms.
Candidacy forOffice
Upon becoming a candidatefor'-public office; an employee-.may request a leave of absence for the
duration of such candidacy.. If the candidacy gf a,City employee for public office involves time
commitments`thatarg- inconsistent with the employee's regular municipal employment, so that the
regularly assigned duties cannot be#ulfilled, the employee must request a leave of absence. The: City
Manager may grant such leave of absence if if is inthe interests of the City and if the required duties of
the employee-.can be satisfactorily reassigned. An employee shall be considered a candidate under this
.section upon filing for political office.
Election or Aapointment to .Office
If an employee is elected or appointed to a position that is legally incompatible with municipal
employment, the employee must resign municipal employment before assuming the responsibilities of
the, elected or appointed office.. If an employee .is elected to the legislature or to another full-time `public -
office, the employee shall be granted a leave of absence, as provided by law.
If an employee is elected or appointed'to a part-timepublic office which is legally incompatible with
municipal employment, andcannot simultaneously effectively discharge,the responsibilities of
employment, the employee shall either resign municipal employment, or requesf a leave of absence to
permit the employee to exercise the part-time public office. The City Manager may grant such leave of
~~ `~
Mary D. Tietjen
470 US Bank Plaza
200 South Sixth Street
Minneapolis MN 55402
(612) 337-9277 telephone
(612) 337-9310 fax
mtietjen@kennedy-graven.oom
http://www.kennedy-~raven.com
CHARTERED
MEMORANDUM
Date: September 17, 2007
To: Steve Devich
From: Mary Tietjen, Attorney.
Re: Amendments to City Administrative Code
Staff has recommended amendments to the City's Administrative Code dealing with
r employee vacation leave and political leave. You have asked for a brief summary of the law
underlying-the reasons for these proposed amendments.
Emnloyee Vacation Leave
There are two proposed changes relating to vacation leave. The first eliminates a waiting
period for use of vacation leave. (Subsection. 310.33) The. second eliminates. the. City's
ability to deny payment of earned vacation benefits to an employee who leaves employment
and fails to follow the procedures for giving notice. {Subsection 310.43)
In 2006, the Minnesota Court of Appeals interpreted a state law (Minn. Stat. § 181.13(a))
that requires an employer to pay wages to a discharged employee. See Lee a Fresenius
Medical Care, Inc., 719 N.W.2d 222 (Minn. Ct. App. 2006). The statute does not define
"wages," but the Court held that the term includes compensation for accrued vacation time
actually earned and unpaid at the time an employee is discharged and that it must be paid in
the same manner as other wages. The Lee case involved an employee who had been
discharged for misconduct. The Court held that the statute does not provide an exception for
misconduct and; thus, the employer could not withhold payment of earned, unused vacation
time to the employee.
The City's proposed ordinance amendments are consistent with the Court's ruling in Lee.
The Court does not specifically address the issue of a waiting period far use of earned
vacation leave. However, eliminating the waiting period certainly removes any potential
argumerrt by an employee that they are being denied wages owed to them. Also, the
32-088sJvi MI3T-RC160-2
r
'.~
amendment relating to payout of vacation leave upon resignation is necessary under the Lee
case. The City could not deny payout of accrued vacation benefits even if an employee did
not follow established procedures for giving notice. The statute makes no exception relating
to failure to give proper notice and the City would be required to pay all earned and unused
vacation leave.
Leave for~otitical Qf~ice
The City's current ordinance (Subsection 310.51) requires a city employee who becomes a
candidate for political office to take a leave of absence without pay. It also provides that the
City may terminate an employee who becomes a political candidate.
1Vfinnesota law provides that the City ~ require that an employee take a leave of absence
upon becoming a candidate. See Martin v Itasca County, 448 N.W.2d 368 (Minn. 1989). I
am aware of no authority prohibiting a city employee from holding an elective office or
requiring. an employee to take a leave of absence.
Staff has discussed whether the strict approach under the City's current ordinance is
necessary under existing law. Because employees aze not required to take a leave of
absence under state law, the City Council has the discretion to create a more flexible policy.
The proposed policy would allow political participation by employees, but allow for a leave
of absence if the public office and the employee's city position are incompatible. If the
positions aze legally incompatible, the employee would be required to resign from municipal
employment.
cc: Pam Dmytrenko, Assistant to the City Manager
Corrine Thomson, City Attorney
•
320889v1 MDT RC160-2 2
MinnLawyer:com' ` Page 1 of 5
~-~0
COURT OF APPEALS
Susan Lee, Appel an#, vs. Fresenius Medical Care, Inc.,
Respondent.
AQ5-'1887 .
August 8, 2006
Reversed and remanded
Peterson, Judge
St. Louis County' District Court
File No. 69-C1-Q5-600719
Don.: L. Bye, 1000 TorreyBuilding, 314 West Superior Street, Duluth;,MN,55802 (for
appellant).
• Sandro M. Garofalo, Marko Mrkonich, Littler Mendolson, P.C., 33 South Sixth Street, Suite
3110, Minneapolis, MN 55402 (for respondent)
Considered and decided by Toussaint, Chief Judge; Peterson, ;Judge; and Minge, Judge.
- `.:SYLLABUS
1. =When used in; Minn: Stat: § 18.1.13(a) (2004), the term "wages" includes compensation for.
accrued vacation. time that an employee has earned under the terms of an employment
contract of the time'the employee is discharged..
2. A contract provision-that.makes an employee who is discharged formisconduct ineligible
for compensation for accrued vacation time'that is earned and unpaid of the time the
employee is discharged has no legal effect because'Minn. Stat.§181.13(a) requires an
employer o pay a discharged employee: wages: that are earned and unpaid at the time of the
discharge,. and parties cannot provide by contract what is prohibited by. statute.
OPINION
PETERSON, Judge (Hon. Heather L. Sweetland, District-Court Judge)
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~-
This appeal is"from a'surnrnary judgment thafiappellant Susan'Lee is not,entitled to be paid
for unused-vacation -time thaf she had earned at the time- she was discharged because Lee's
. employment contract included a provision that an employee who is terminated-for
misconduct is not eligible for payment of earned` but unused vacation time,: and Lee was
discharged: for misconduct. We :reverse and remand.
FACTS
Appellant Susan;tee beganworking at the Miller-Dwan dialysis center in Duluth in 1991 and
became an employee of respondent Fresenius Medical Care,-:Inc. in;August-.2000 when
Miller-Dwan sold its dialysis center to Fresenius. On August 31, 2000, Lee:sign~d an
acknowledgement stating that she received a copy of the Fresenius employee handbook.
The handbook states'the company policy that an employee whQ leaves employment is
eligible to be paid for,earned but unused vacation time, `
~ The handbook. refers to vacation as "Paid Time Off," buf Fresenius states in its brief-that it
uses the. terms "vacation" and "paid time off' interchangeably.
if the employee gives proper notice. The handbook also states, "In addition, if your
,~ employment is terminated for misconduct, you will not be eligible for ...payment- of earned
-but unused [paid time. off] unless required by-state law."
In 2002, Fresenius terminated Lee's ernployment.2
2 The district court found that Lee did not dispute that she was terminated for misconduct.
Lee argues on appeal that the reason why she was terminated is disputed.
Under our analysis, it is not. necessary to determine whether Lee was terminated for
misconduct.
Fresenius-paid Lee her accumulated`wages, but it did not pay her for earned but unused
vacation time. Lee brought an action in conciliation court seeking compensation for 181.86
hours of vacation time that she claimed she had earned but had not used when Fresenius
terminated her employment.'The conciliation. court awarded Lee vacation pay, and Fresenius.
removed the case to the district court. Fresenius moved for summaryjudgment, and the
district court determined that under-her employment. contract, Lee was not entitled to be paid
for her earned but unused- vacation time. Based on-this determination, the district court
granted the motion for summary judgment. This appeal followed.
...ISSUE
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I's Lee entitled to be paid for vacation time that she had earned and had not used at the time
she _was discharged?
.ANALYSIS
On appeal from, asummary-judgment, we determine whether there. are any genuine issues of
material fact and whether the district court erred in.`its application of law.'Funchess v.` Ceci/
Newman Corp..,. 632 NW.2d 666, .672 (Minn. 2001):. We view the evidence"in the light-most
favorable to the party against whom summary judgment was granted and any doubts abouf
the existence of`a material fact are. resoled in that. party's favor." /d: Application of a statute
to the undisputed facts of a case involves ,a question of law, and the district court's decision
is nofi binding on-this court. O'Malley, v. Ulland Bros., 549 N.W.2d 889, 892 {Ming. 1996).
In Minnesota, an employer who discharges an employee is required by statute to pay the
discharged employee any wages that the employee has earned. The statute provides:
When any employer employing labor within this state discharges an employee, the wages or
:commissions actually earned: and .unpaid at the time of the discharge are immediately due
and payable upon demand of the_employee; If the employee's earned`wages and
commissions are not paid within 24 hours after demand, whether the employment- was by the
day;.hour, week, rrmonth, or piece or by `commissions, the employer is in default. The
.discharged employee may charge and collect the amount of the employee's average daily
earnings at the rate agreed upon in the contract of employment, fior each day up to 15 days,
-that the employer is in default, untiF full payment or other settlement,: satisfactory to the
discharged employee, is made.
Minn. Stat. § 181.13(a) (2004). -
The statute does not define "wages." But this court applied the statute in an action seeking
compensation for accrued :vacation-.time brought by employees whose'employer closed -its
Minnesota operations and terminated their employment. Brown v. Tonka Corp., 51.9 N.W.2d
474,..475 Minn..A 1.994 . In Brown, '
( pp• ) this court recognized that an employer's liability for
employees"vacation pay is,wholly contractual and deterrriined that having received the
benefit.of the discharged employees' work product, he employer was obligated to pay the
`employees :for the accrued vacation time that whey had accumulated while working for the
employer. /d. at 477. Based on this court's reasoning in Brown, we conclude that when used
in'Minn. Stat. § 181.13(x), the term."wages" includes:-:.compensation for accrued vacation time
accumulated under the terms of an employment contract and that under Minn. Stat. § 181.13
{a), compensation for accrued vacation time actually earned and unpaid atthe time an
employee is discharged must be paid in the same manner.as other wages and .commissions.
The district court determined #hat when ari employer discharges an employee, the employer
is obligated under,-Minn. `Stat. § 181:13(x} o pay the employee for accrued vacation time. But
_` .the district court determined further that Fresenius was notobligated topay Lee for accrued
vacation time because an employer's liability for an employee's. vacation pay is wholly
contractual, and tinder the policy stated in`the Fresenus employee handbook, an employee
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who .is terminated for misconduct is not: eligible for. paymenf of earned but. unused vacation
time. The district court determined that`the policy stated. in the employee handbook was a
part of the employment contract between` Fresenius and Lee, and, therefore, because tee
.was discharged for misconduct, she was not entitled to be paid for her unused vacation time
under the terms of her contract.
Although; it is generally true that an employer's liability for an employee's vacation pay is
wholly contractual, thee. district court's conclusion. that Lee was not enti#led to be paid for her
unused vacation time under'the terms of her contract fails to recognize the principle that.."[a]
party cannot provide by contract what, is prohibited 'by statute." Winnetka. Partners Ltd. P'ship
v. County of Hennepin, 538 N.W.2d 912, 914 (Minn. 1995). In ~nnetka Partners, the owner
of an apartment complex, in exchange-for tax-increment financing, entered into aminimum-
assessment agreement with. a .local housing and redevelopment authority (HRA). /d. at 913.
The agreement set the, minimum market value of the apartment complex at $6,000,000 and
provided that this amount would increase. by a specified annual percentage .rate. /d. The
county assessor certified this value, as required by state statute. /d. Sever-al years later, the
owner and-ahe HRA entered into an addendum to he original minimum-assessment
agreement, which reduced the. minimum market value of the property and stated in
.paragraph 2 that "`[t]his agreement shall be effective as of January 1, 1991 for taxes payable
calendar year 1992 and thereafter."' /d. (alteration`in original). The county assessor signed a
.certification: statementfor the addendum: on June 1, 1993; which stated, "`[n]otwithstanding
theJanguage contained in 'paragraph 2 of the Addendum o Assessment Agreement, this
Addendum sha1C be effective' as of the date this Certificate is signed by the County Assessor
for the purposes ofdeterminng-the subject property's fair market value and corresponding-
real estate taxes."' /d; (alteration in original).
•
Before the assessor signedthe addendum certification, the property owner'filed apetition in
tax court, .seeking a reduction in the January 2, 1992 assessment for the property. !d: After
the assessor signed the addendum certification, the property owner filed a petition in district
court, seeking an alternative writ of mandamus to compel the assessor to certify the
addendum for years before 1993.. /d. at 913-14. The county filed a request to quash the writ,
and. the district court transferred the mandamus action to the tax court to be combined with
the tax petition that the-property owner previously filed. Id. at 914: The tax court: issued an
order quashing the alternative writ:`of mandamus and .granting the assessor and the county
summary judgment. /d.
The property owner appealed, and .the supreme court affirmed.. /d. at _914-15. The supreme
court noted that for the years''retroactively included in ahe addendum, the.. property. owner had
a minimum=assessment, agreement in effect: /d. at 914. The supreme court then quoted a
.statute that governed assessment agreements, which `stated:
"The owner of the property may week, through the exercise of administrative and legal
remedies, a reduction in market value for property ax purposes, but no city assessor, county
- assessor,. county auditor, board of review, .board of equalization, commissioner of revenue,
or court of this state- shall grant a reduction of the market value below the minimum market
value contained in the assessment agreement during the term of the agreement filed 'of
record ....,,
Id. (quoting Minn. Stat. § 469.177, subd. 8 (1992)). The supreme court,concluded that if the
provision in the addendum stating that if was to be effective as of January 1, 1991, for taxes
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g {~
payable in calendar year 1992 and thereafter were given effecf; the addendum.would violate-
Minn. Staf: § 469.177,. subd: 8, and, therefore, the retroactivity provision of the addendum
could be .given no legal effect. /d. at 91'4-15.
Applying the supreme court's reasoning in, ~nnetka Partners o the facts of this case, we
conclude hat the provision in Lee's contract that an employee-:who is terminated for
misconduct is not eligible for payment,of earned but unused vacation time3
3 Lee argues"that she is entitled to a trial to determine whether.the provisions in the-
employee handbook make her ineligible for payment for earned but unused vacation.
But. if is not necessary to :conduct a trial'for the purpose of interpreting the" provisions in the
employee handbook because if the handbook does: not make Lee ineligible"for• payment for
earned buf'unused. vacation, she is entitled,#o payment, and if a provision in the handbook
makes her. ineligible for payment, the provision has no legal effect, and Lee is entitled to
payment in' spite-of the provision.
-can be given no ,legal ,effect. Under Minn. Stat. § 181.13(a), when an employer- discharges an
employee, any compensation for: accrued vacation. time that the employee has earned but
'has not been paid at the timo of the discharge is immediately due and payable upon -demand
of the employee. The statute requires the employer o pay the employee for the accrued
vacation time. However, under Lee's contract, if sheds discharged for`misconduct, Fresenius
is not required to pay her for: earned but unused vacation time. Minn. Stat..§ 181.13(a}does
::.not contain an exception for an employee who is discharged for misconduct, and: the effect of
_ the contract provision;is to allow what the statute prohibits. Therefore,`the contract provision.
violates Nlinn. Sfat. § 181.13(a) and "can be given no legal effect.
DECISION `
The provision in Lee's contract that' makes an employee who is terminated for misconduct ,
ineligible for payment for earned but unused vacation time-allows Freseniusto avoid paying
a discharged "employee for accrued vacation time that is earned and unpaid at the time of the
discharge. Therefore, the contract provision allows what Minn. Stat. § 181.13(a) prohibits,
and the district court erred in giving,`the.provision legal effect,
Reversed and remanded.
a
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CITY COUNCIL MEETING
SEPTEMBER 25 200:7
•
Ii.,:: BACKGROUND
During the past 18 months; Richfield has experienced problems with graffiti -and
property damage from individuals using spray-paint that they may have .purchased
from local businesses. Some of the graffiti features symbols representative of
gangs and most can be attributed to minors referred- to as "wannabe" gang
members. However, staff takes this method of property destruction Very seriously
because. it can be a reflection of other problems in the community,' including a
~.
presence. of gang.. activity.
(n an effort to maintain control, and,. hopefully, discourage the offenders that use this
method in Richfield; referred to as "tagging," the` City Attorney's office has' helped to
0925 Graffiti Spray:Pai:nt Ordinance
develop an ordinance that will give. police officers and the public means to control
and prosecute violators of the ordinance. "
.:
State Legislators are in the process. of presenting legislation that will regulate and
control he sale and use of spray paint on astate-wide basis.
Second reading of this: proposed ordinance is scheduled for November 13, 2007.
-III: .BASIS OF RECOMMENDATION
A: POLICY
• This amendment would add Section 935 to the City Code.
• The ar~'~endment would regulate the sale or transfer of verious'paint
equipment, except as specified in the new ordinance; give-guidance
for storage:and signage forahe sale of the equipment; place demands
on the removal of the graffiti that mayor may not be related to the
direct'-.sale of the products;, and establish: enforcement and. penalties
that the commercial establishments would face if there is non-
compliance. with the City Code, Section 935.
B: CRITICAL ISSUES
• -Richfield residents are anxious to -have some form of discipline and
guidelines in place to prosecute the offenders and to control the sale
of graffiti equipment.
`• This ordinance would help. regulate the_sale of the products and
.impose penalties. on those establishments-responsible for selling the
:.:products:..
C. FnvArrClaL
Fines vvill be in accordancewith Section D of the Richfield City Code.
D. LEGAL:
• Legal counsel has prepared and reviewed the drafts and-final version
of the- ordinance.
IV. ALTERNATIVE RECOMMENDATIONS}
• The only alternative would be #o allow the. paint sprayers, etc., to be sold to
anyone, by anyone, and thus have no control-over the items.
U. ATTACHMENTS
- Ordinance No.
VI. PRINCII'AL PARTIES EXPECTED AT MEETING
• Unknown
s
%d~
ORDINANCE:NO.
AN ORDINANCE RELATING TO THE SALE:OF SPRAY PAINT AND
SIMLLAR ITEMS
THE CITY OF RICHFIELD DOES ORDAIN.:
Section 1. Chapter IX of the Richfield City Code is amended to add the following new
Section `935:
935.01. Sale or transfer to minors. No person 17 years of age or- under may possess
or buy any spray paint, paint sticks, or one-half (1/2). inch or larger -broad-tipped markers,
No person in the business of selling or promoting the sale of spray painf, paint. sticks, or
1/2 inch-or larger broad-tipped markers, -..nor theagent or employee of anysuch'person,
may selL,or transfer possession of spray paint, paint sticks,. or %2 inch or argerbrgad-tipped
markers,#o a person 17 years of age or under.
935.03.: < Exceptions.. Subdivision: 1. Consent from parent or guardian. A person may
sell or. transfer possession of pray paint, `paint sticks, or 1/2 inch or larger broad-tipped
-, markers `to a person 17 years of age or under if he minor presents the.written consent of
the minor's parent or guardian. Such consent must contain the name, -.address and
telephone number ofi the parent::or guardian.
Subd. 2. Specific uses. This section does not apply if the: spray paint, paint
stick, or 1/2 inch or larger ..broad-tipped. marker is sold, delivered, or given away
simultaneously with and as part of a kit used for the construction of model airplanes,' model
boats,~modef automobiles, model trains, or other-similar models. `
935.05. Storage of Items. Subdivision. 1. Visibility. A person who owns, conducts,
operates; or manages a commercial establishment offering for -sale spray paint, paint
sticks, or'1/2 inch or larger broad-tipped markers must store such items'in an area that is
continuously observable:, through either. direct .visual observation or surveillance
equipment,~by employees°of the establishment during regular business hours.
Subd. 2. Accessibility. If a commercial establishment is unable to store....spray
paint, paint sticks or 1/2 inch -or larger broad=tipped markers in an area as provided in
subdivision .1 :.above, the: establishment must store- the items ' in an `area that is not
accessible, without employee assistance, to the: public during ,,regular business hours. This
subdivision does not preclude an establishment-.from otherwise storing the spray paint,
paint sticks or 1/2 inch or larger broad=tipped markers in a storage ,room :that is not
accessible to the public without employee assistance.
Subd. 3. S g All commercial establishments in the business.of selling or
promoting the sale of spray .paint, paint sticks, or' 1/2 inch or larger broad-tipped markers.
must display a sign, in clear view, with- a minimum letter size of one inch,. that. reads: "We
I.D. No .Spray Paint Sales to Minors."
~o-
AGENDA SECTION: nmauu urreTUrree
..` ,
ITEM FOR COUNCIL CONSIDERATION:
.Consideration of approval of plansfor-the 66th. Street and: Portland Avenue Intersection
Reconstruction Pro'ect and a No.Parkin `-resolution on Portland Avenue and 66t"Street:
L RECOMMENDED ACTION:
By-Motion:
• Approve plans for the 66t" Street and Portland Avenue
Intersection Reconstruction Project, City Project '41450; and
• Adopt a resolution for.."No Parking".on both sides of Portland
Avenue .and 66t".-Street for reconstruction of fhe intersection.
II. BACKGROUND
For many years. the intersection of 66th Street and. Portland Avenue has
- experienced operational and safety problems..... In December 2004, -the City of
Richfeld's Transportation Commission began a traffic study to address these
' `problems. The Transportation Commission prepared study goals and objectives in
eight,categories
o Safety
o Transportation/Transit
o :Access
0925Portland
o Land tJse/Right-of-Way Needs
o -Community-Themes/Aesthetics
o Neighborhood Concerns
o ;Maintenance
o ' Benefit/Cost
" At the October 25 2005 regular Council meeting the project was approved with an
expected construction- start of Spring 2008.
Reconstruction of the intersection is eligible for Federal and State Aid funding.. In
order to'secure the federal funding ($22""million), the Minnesota Department of
Transportation needs #o receive a City. approved set of plans by September 30, "
2007.
In order to secure the State Aid funding; the -City is required to adop# a resolution
restricting parking in the construction imits. This restriction includes: Portland
Avenue from 67tH Street north to 400 feet north of 66tH Street and 66t" Street from 4tH
Avenue to Columbus Avenue.
Prior to advertising for bids: on the project there wilt be a Council work session to
determine further,direction-for staff.
• III. BASIS OF RECOMMENDATION
A. POLICY
• The reconstruction` of 66th Street and Portland Avenue has been
identified as a priority in the City's Comprehensive Plan.
• Hennepin County and the Minnesota Department. of Transportation
have approved the `plan.
• MSA standards of an arterial street with limited-width require no
parking restrictions:
• At a future date, the Council wilt be asked to consider authorizing the
plan to go to bid prior to the reconstruction'of the intersection.
B. CRITICAL ISSUES
• As suggested by Mr. Tobaben at the September 19, 2007 Special
Council Meeting, bicycle accommodations suggesting;that riders exit
the roadway and use the sidewalk o travel through the intersection
will be incorporated into the plan prior to bid letting. The "attached
layout does not reflect the accommodations.
• The $2.2 million in Federal funding is tied to the approval of the project-
-plans before the sunset"date of September 30, 2007.
• The intersection of Portland Avenueand 66tH Street,ts scheduled for
reconstruction in 2008.. A "No Parking" resolution is needed to"meet
r
MSA standards for: Mn/DOT plan approval so that the City can use
Federal and Municipal State Aid funds to build the project.
~r- j
RESOLUTION NO:
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KRISTIN ASHER ASSISTANT'CITY
'
-REPORT`PREPARED BY: ENGINEER
NAME, ..TITLE
COUNCIL PRESENTER:
DEPARTMENT DIRECTOR ~ ~ .
.REVIEW:
REVIEWED BY CITY S/GNATURE
•
', MANAGER:
ITEM FOR COUNCIL CONSIDERATION::'
Gonsiderationof aContract for Demolition of 6600 Oakland Avenue South to prepare the
property for the. upcoming_66t" Sf. & Portland Ave:-.`Intersection project and land trade with Tim
Teachout owner of T&T Automotive ..
II. BACKGROUND
:The property at 6600 Oakland Avenue was'included in the 66t" Street and Portland.
Avenue: Intersection project in order improve the safety and operations of the area-
and act as land mitigation to the T&T Automotive site impacted by the project.
• Specifically the project will remove the 66th-:Street access point from T&T
-Automotive. and enhance safety"at the intersection of 66t" Street and Oakland
Avenue by,moving the bus stop west away and from the intersection.
0925demo
I: RECOMMENDED ACTION:
By Motion: Authorize the. Mayor and City Manager to execute the
proposed Demolition Contract between` Roger Peterson. Construction
-and the City of Richfield for the demolition-and abatement of
hazardous`materials of the properfy located at 6600'Oakland Avenue
South in Richfield.
Aland exchange agreement with. Mr. Teachout is-expected to be before Council for
consideration at the October 9, 2007 Council Meeting: To allow Mr. Teachout the
opportunity to-.move his underground tanks with minimum disruption to his business,
the 6600 Oakland house. should. be removed from the property as'soon as possible
so that the tanks can be relocated this fall. tJpon approval of this contract the
- demolition is tentatively scheduled to begin'`in early October:
III. BASIS OF RECOM1b1ENDATION
A. POLICY
• Roger Peterson Construction was the lowest, responsible-bidder that
- submitted .bids for the' demolition work.
• bemolition and site clearance is necessary to make the land. available
#or the future use. of the property.
B. CRITICAL ISSUES
• To provide Mr. Teachout (T&T Automotive) a reasonable opportunity
to relocate his underground tanks, with minimal interruption to his.
business, the 6600 Oakland house needs to be removed and the site
prepared this fall.::
C. FINANCIAL
`~ • ': The contract-amount is $17,530.00 for the demolition and-site
preparation,(Municipal State Aid (MSA) funds).
D. LEGAL,.
• The proposed contract was prepared by Kennedy & Graven,
Chartered. The City,Attorney will be available to answer questions.
IV. ALTERNATIVE RECOMMENDATION~S~
• Do not authorize the Mayor and City Manager to execute the agreement until ;.
-the and exchange agreement between Mr. Teachout-:and the City of
Richfield has been completed and approved. However, the timing of the
demolition and site preparation is dependant on the weather conditions.
V. ATTACHMENTS
• Proposed Contract for Demolition of 6600 Oakland Avenue South -
• Site Plan of 66th:Street & Portland Project...
• " Graphic of the proposed use at 66th Street and Oakland Avenue
• Bid Minutes/Tabulation
VL PRnvCIPAL PARTIES EXPECTED-AT MEETING
~' • None.:.,.
r ~--1
CONTRACT FOR DEMOLITION OF 6600 OAKLAND AVENUE SOUTH
THIS CONTRACT is made and entered into. this day of , 2007; by and
between Roger Peterson Construction (the "Contractor")::and the City of Richfield, State of -
Minnesota (the ~~City") (collectively, the "Parties"), for 'the- demolition: of buildings and
abatement of hazardous. substances and materials. of the property located at 6600. Oakland
Avenue South;`Richfield; MN 55423.
RECITALS
WHEREAS, the City requires the demolition of buildings at 6600 Oakland Avenue South
including among other items; the abatement of hazardous substances and. materials (the "Work").
WHEREAS, the City has awarded .the Work to the Contractor;
WHEREAS, the Contractor represents that it has -the necessary personnel, experience,:..
competence, and legal right to perform the Work; .
NOW, THEREFORE, in consideration of the mutual obligations of he Parties hereto,
each of them does hereby covenant,arid agree as follows:
Section 1. Definitions
"Asbestos" means any.. material containing more than one percent asbestos, which is friable,
releasing asbestos fibers irito the air, above .current levels established by the United :States
Occupational Safety and Health Administration.
"City" means the City of Richfield,':Minnesota.
"Contract" or `"Agreement" means this agreement between the City and .Contractor for the
performance of the Work, together with all exhibits, amendments, or' modifications to the
Contract:.. :
"Destructive Report" means a hazardous materials abatement inventory prepared to assist. in
:establishing the scope of the Work. ;
"Final Completion" means all items of the Work; "punch list items".and site work are completed
:and Contractor is eligible for Final Payment.
"Hazardous ~1Vlaterials" means asbestos, PCBs, petroleum hazardous waste; radioactive material,
or any other hazardous materials or hazardous wastes within the meaning of City,` State of:
Minnesota;: or Federal definitions of hazardous materials or hazardous waste.
"Owner" means the City of Richfield, Minnesota.
320078v1 MTN RC145-578
1
~ ~ - ~:
"Property" means 6600 Oakland Avenue South, Richfield, MN 55423.
"Substantial Completion" means the time at which "the City determines-that the Work has
progressed to a point where it is sufficiently complete, leaving only minor-"punch list" and close
.....out items- and other minor site work required to be completed for:full payment of..the contract..
price.
"Work"-:means the entire completed demolition, abatement of hazardous .materials, and all .other
activities to be performed by Contractor on the. Property as provided- for in the Contract:
Section 2. Generale Requirements
2.I. -Rights of the City. The'Cty reserves the right to reject.:any or ah proposals or
parts. of proposals, to accept part or all of proposals ,on the basis of considerations other
than lowest cost, and to create a project of lesser or greater;expense -:and reimbursement
than described in this .Contract. The City also reserves the right to cancel the Contract
without penalty, if circumstances arise which prevent-..the City. from completing the
project. In the event of any conflict between the General Conditions and this Contract,
this Contract shall control.
22. Interest of Members' of City. ` The Contractor agrees that no member of the
governing body, officer, employee,.. of agent of the City shall have any interest; financial
• or otherwise, direct or indirect, in the Contract.
2.3. Equal Opportunity Statement. Contractor agrees to comply with the provisions of
all applicable federal,. state, ;and City of Richfield statutes,.::ordinances, and regulations
pertaining to civil rights and nondiscrimination. including without limitation Minnesota
Statutes,Section 181.59 as amended, incorporated herein by reference:
2.4, Transfer of Interest:. The Contractor shall not `assign any interest in the Contract,
and shall not transfer any interest in the same either by assignment or novation, without
- the prior written approval of the City, provided, however, that claims for money due or to
income due to the Contractor maybe assigned to a bank, trust company, or other. financial
institution, or o a Trustee in Bankruptcy without such approval. Notice of any such
-assignment or transfer shall be furnished to he City. Notwithstanding the foregoing,
Contractor shall be"entitled to use subcontractors. to perform the Work.
2.5. Independent Contractor.. Nothing contained in this. agreement is intended to, or
shall be construed in any manner, as creating or establishing the relationship of
employer/emphyee between the .parties. The Contractor shall at all times remain an
'independent contractor with respect to the services to be performed `under this .agreement.
The City shall be exempt from payment of all Unemployment:Compensation, FICA,
retirement, life and/or medical insurance and :Workers Compensation Insurance as the
Contractor is arl independent contractor.
320078v1 MTN RC145=578 2
_.
la -3
2.6. Hold Harmless: Thee Contractor agrees o defend, indemnify and hold- harmless
the City, its officers and :employees, from any liabilities, claims,. damages,. costs,
judgments, and expenses, including attorney's: fees, resulting directly or indirectly from
an act. or ..omission: of the contractor, its employees, its agents, ~or employees. of
subcontractors, in the performance of the services provided: by thin contractor by reason
of the failure ofthe-contractor to fully perform; in any respect, all of its obligations:under
this Contract.
2:7. Accounting Standards. The Contractor agrees to maintain the necessary source
documentation: and enforce sufficient internal controls as dictated by normally, accepted
accounting practicesto properly account for expenses incurred under this contract.`
2.8. lZetention of Records. The Contractor shall retain all.. records pertinent to
expenditures incurred under--this Contract for a period of three years after the resolution
of all audit findings. Records for non-expendable property acquired with-funds under this
contract shall be retained for three.years after final disposition of-such property.
2.9. Disclosure. The Contractor agrees o comply with the Minnesota Government
Data Practices Act, Minnesota Statutes, Chapter 13; and all other applicable state and
federal .laws relating to data: privacy or .confidentiality, as those laws may be amended.
The Contractor shall :immediately- report to the City `any requests -from third .parties for
.information relating o this agreement. All data created, collected; received, stored, used;
maintained, or,disseminated by the Contractor in performing its obligations is,subject to
the requirements of the Act, and the Contractor must comply with those requirements as"
ift were a government entity. The City agrees to promptly respond to inquiries from the
Contractor concerning data requests. The Contractor agrees to hold the City and- the City,
its officers, department heads and employees harmless from any claims resulting from the
Contractor's failure to disclose data maintained by the Contractor and authorized for
release. by the City, and, from Contractor's unlawful disclosure or use of data protected
under state and federal laws: `-
Section 3. Contract Price
3.1: Upon compliance with all the requirements of this Contract, Contractor shall be
paid the :Contract Price of $1 x,530.00, pursuant to Section 28 of this Contract.
Section 4. :Project Schedule
41. .Contractor shall commence the Work on or after contract execution and
Substantial Completion of the Work shall be achieved no `later than twenty' (20) days
thereafter.
Section 5.. Local Permit` Requirements and Related Submittals
5.1. Contractor shall obtain permits required by :the City of Richfield, including a
plumbing permit (for water'; & sanitary sewer disconnects) and a demolition permit.
320078v1 MTN RC 145-578. 3
/~.
Questions about these permits, permit fees, and the scheduling. process-.for the required
..inspections should be directed to the Building Inspections Department at Richfield City
- Hall (612-861-9816). ;Contractor has been provided a copy of an abatement hazardous
materials inventory"Destructive Report" The Destructive Report is not intended by the
City to limit the activities of the Contractor, but to assist the Contractor in assessing the
acope of the Work for purposes of complying with its obligations under this. Agreement.
5.2: No less than 2-days prior to beginning the Work, the Contractor shall provide:
- .Description of proposed dust.. and noise control- measures for the Property.
5.3. Upon completion of the Work, Contractor shall-provide:
- Copies of any permits. required by government agencies other than the City
of Richfield, such as transport or, disposal permits.
Copies of any .test results required by government .agencies other than. the
City. of Richfield, including but not limited to testing required as part of the
asbestos abatement process. `
- Copies of all landfill records indicating receipt ,and acceptance'of hazardous
wastes by a landfill licensed to accept hazardous wastes:
Section 6. Job Conditions -General
6.1. 'Contractor will disconnect and abandon utilities serving the Property, including
water, sanitary sewer, electricity, gas and telecommunications; or 'arrange for.
disconnection and abandonment of same, Contractor....shalLnot begin work before field-
verifying that disconnection and abandonment has been completed:
6.2. Owner. shall ensure that the buildings will be vacated and use of the property will
be discontinued prior to start of work.
6.3. Owner assumes no responsibility for actual condition of structures to be
demolished. 'Conditions existing at time of `inspection for bidding purposes will be
maintained by Owner: to` the extent practicable. Contractor may salvage.. any and `all
materials and equipment from the.Property.• Variations within structures may occurdue
to removal and salvage operations prior to the start of demolition work.
6.4. This is a lump sum contract. Contractor must immediately .contact Owner prior to
exceeding the Contract Price set out in Section 3.1. Change orders fore"additional
payment will not be granted due to the 'Contractor underestimating quantities of
.material(s).
320078v1 MTN.RC145-578 4.
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6.5. Contractor shall provide all labor; materials, equipment, employee `training,
compliance with. all regulations, permits, notifications, licenses and agreement necessary
to perform the work described in this Contract..
6:6. All .materials ' from undertaking the ..Work shall become the property ..and
responsibility of-the Contractor.
67. Contractor may choose to salvage materials and equipment. Any salvaged items
must be removed from the Property in a timely manner as they are salvaged. On site
storage or sale of salvaged items is prohibited.
6.8. The use of explosives and on site burning by the Contractor are prohibited.
6.9. Contractor shall provide water, electricity, communications-,and toilet facilities on
site as necessary to complete the work.
6.10. Contractor shall provide and maintain uninterrupted vehicular access to the
Property, including temporary demolition. facilities, storage and work areas, for not only
persons and equipment involved in the project but also. emergency vehicles.
6.11. Contractor shall keep'fire hydrants and water control valves free from obstruction.
and accessible for use.
6.12. Contractor shall take: all necessary safeguards to prevent damage or injury to
neighboring ,property.
_ 6.13. Prior to closing or rerouting. existing'traffic lanes or sidewalks in any public street
easement or right-of-way adjacent to streets, the Contractor :shall obtain written
permission from the City Engineer. Expenses related o lane closures, including but not
limited to traffic barriers, signs and similar equipment as well as traffic control personnel,
shall be the responsibility of the Contractor.. -
Section 7. Asbestos Abatement
7.1: Contractor shall remove and properly dispose of all friable and category 2 non-
friable asbestos containing materials and complete asbestos abatement on the Property in
accordance with Minnesota Pollution Control. Agency regulations and the Destructive
Report identified in Section 5.l of this Contract.
7.2. Contractor shall decontaminate and encapsulate the -work area prior to final
clearance and air monitoring:
7.3 Contractor shall provide .final cleanup..: and: removal of all remaining temporary
barriers, equipment -and supplies.
320078v1 MTN RG145-578 5
~a-
7.4. Contractor shall provide all monitoring and analysis of air. samples as required by
state and federal'regulations.
7.5. Contractor shall complete-:final clearance and air monitoring as required by state
and federal regulations.
Section 8. Other Hazardous Materials Abatement -
Pursuant to Minnesota Pollution Control Agency regulations and the- Destructive Report,
Contractor shall remove and properly dispose of the following materials and items .from .the
Property: ;
8.1: Mercury:
a. Batteries: Smoke detectors,.: emergency lighting, exit signs, security
.systems and. alarms.
b. Lighting: Fluorescent lights and bulbs; high intensity. discharge lights
(metal halide, high pressure sodium, mercury vapor and neon); switches
and controls for lighting.
a. Heating; Ventilating and Air Conditioning Systems: controls, devices,
• thermostats, aquastats, pressurestats, firestats, manometers, .thermometers.
d. Boilers; Furnaces, Heaters and Tanks: Mercury `flame `sensors `by pilot
lights; :.manometers, thermometers, gauges, pressure-troy; float. and level -
..controls, space heater and unit ventilator controls.
e. Electrical systems: Load meters and supply ..relays, phase splitters,
microwave relays and mercury displacement relays.
f. 1Vliscellaneous; All vacuum, pressure, fluid level, temperature and flow
rate control- boxes and panels.
g. Any electrical wiring from fixtures' or equipment being removed .for
.abatement shall be capped:
8.2. Poly-Chlorinated Biphenyls (PCBs): Transformers, transistors, capacitors; heat
transfer equipment; light ballasts.
8.3. Chlorofluorocarbons (CFCs), and Hydrochlorofluorocarbons (HCFCs): Fire
extinguishers, -.air conditioners, walk-in coolers and freezers, water fountains and
dehumidifiers,. refrigerators/freezers/chillers; and heat pumps.
8.4; 1Vliscellaneous:
320078x1 MTN RC145-578 ( -
~a~
a. Hazardous waste including,general-purpose cleaners, paints and hinners.
b. Oils including used oil and_hydraulic oil in door closers.
a Water heaters.
d. Space heaters.
e. Air compressors and controls.
- f. Building unit .ventilators. :
g.: Radiators.
h: Fuse boxes and electrical panels.
i. Roof top exhaust vents with motors.
j. Boiler chemicals.
k, Heating fuel tank, including contents, if any.
Section 9: Demolition
9:1 Owner:has not conducted any. testing to determine the extent of lead based paint.
Contractor shall conduct-demolition in compliance with any state or federal regulations
governing demolition of structures containing lead based paint.
9.2. Contractor shall use water sprinkling, 'temporary enclosures and other suitable
methods to limit dust. and dirt rising and scattering in-air. Contractor shall comply with
.any and all governing regulations pertaining to environmental protection. Contractor
shall:.-not use water when it may create hazardous or objectionable conditions.-such as
• flooding or pollution.
9.3: Contractor shall clean adjacent structures and improvements of dust,; dirt and
debris. caused by demolition operations and return adjacent areas to condition existing
prior to start of work..
9.4. Contractor shall demolish buildings, other structures, improvements, .and
landscaping completely and remove all debris from the Property. Contractor may use
such methods as required to complete the work subject to the imitations of governing
regulations.
9:5. Contractor shall proceed with demolition in a systematic.. manner, from top of
structures. to ground, and will complete demolition work above.-each floor or tier before
disturbing supports onlowerlevels.
9.6. Contractor shall locate demolition equipment throughout the building and remove
.materials so as to not impose excessive-loads to supporting walls, floor or framing.
9.7. Contractor shall provide and maintain `interior and exterior shoring, bracing or
other structural support to preserve structural stability and prevent movement, settlement
or collapse of the building.
9.8. Contractor shall break up any concrete slabs-on-grade.. and remove from the
Property.
320078v1 M1'N RC145-578 : '~
`a-
• 9.9. Contractor shall demolish footings, foundation walls, tunnels and other below-
- grade structures and remove from the Property..
.9.10 Contractor shall provide certificate of well abandonment if required.
Section 10. Debris Control
10:1. Contractor. shall maintain -the Property free of extraneous. debris.
10.2. Contractor shall prohibit overloading of trucks to prevent pillage on access and
-haul routes.
- 10.3. Contractor shall maintain a sweeping and clean-up program to prevent deposition,
release -and disbursal of soils and debris onto paved surfaces:
Section 11. Disposal
11.1. Contractor shall move from the Property all 'debris, rubbish ,and other materials
resulting: from. demolition operations.
11.2. Contractor shall transport materials from the Property and legally dispose of them
• off-site in accordance with governing regulations.
Section 12. Earthwork
12.1. Contractor shall rough grade .the Property using clean fill after completing all
abatement and demolition activities; taper- edges. of 'all excavated areas to
minimize slope of 2 to 1, keeping soil disturbance to a minimum.
Sectionl3. Excusable Delays
13;1. circumstances, ,and only these: circumstances, will, at the City's
The. following
.
discretion, be considered legitimate cause for a change in the commencement and/or
' completion dates specified in Section 4 of this Agreement:
a. ' Material delay -- material delays that are; beyond the control of -the
Contractor,-which.'can be shown to have directly caused. the. overall late
completion.
b. Adverse weather and emergency conditions -- weather or emergency
conditions that directly affect .the scheduling of .exterior work over a
significant portion of the term of this Agreement.
a Strikes -- Contractors _who :face union work stoppage in the case where
they have to rely on such a work force'in order to complete the Work.
320078v1 MTN RC 145-578 8
~a=
d. ~ Amendments -- amendments in the original scope of work, which can `be
reasonably shown to require ari extension: of the time allowed 'for
completion.
e. Other delays =act or neglect of the Owner, or of an employee of either; or
of a separate contractor employed by the Owner, or by changes:ordered in
the Work or by-unavoidable casualties ,:or -other causes beyond the
Contractor's control:
Section 14. Ghange Order
14,1. The City shall have the right; within the general scope of the Work and without
notice to any surety. or sureties of the .Contractor,; if any, to make changes in the Work,
either by,altering the nature. of the same or by adding to or deducting from it. All changes
shall, except in he ease of emergencies endangering he safety of persons or property, be
made by written Change Order: The parties shall.. determine the. effect of any Change
Order on the Contract Price and project schedule by mutual agreement. The Contractor
shall promptly comply with any -and all written. Change Orders. No such Change Order
shall be deemed to invalidate the remaining terms. and conditions .contained in the
Contract.:
Section 15. Waiver of Liability
15.'1 It is agreed that .the Work is undertaken at the sole risk of the Contractor. ,The
Contractor does .expressly forever release he City and the City of Richfield from any
claims, demands, injuries, damage actions, or:causes of action whatsoever, arising out of
or connected with the Work:
Section 16. Indemnification
16.,1. Any and all claims that arise or may arise as a consequence of any actor omission
on the part of the Contractor, its agents, servants, or employees while engaged in the
:performance of'the Work shall in no way be the obligation or responsibility of the City of
Richfield. The Contractor shall indemnify, hold: harmless, and defend the City of
Richfield, its commissioners, council members, officers, employees; successors, :.and
assigns against: any and all liability, ;loss, cost, damages, expenses, claims, or actions,
including attorney's fees which the City of Richfield, its commissioners, council
:members, officers, or`employees may hereinafter incur or be required to pay on account
of injury to or death of any person or persons. or damage to any property arising out of or
by'reason of any act or omission of the. Contractor, its agents, servants, or employees in
the execution, performance, or failure...to adequately perform its obligations, under this
Agreement, whatever he cause of such injuries or damage.
320078v1 MTN RC145-578 9
!~--1~
Section 17. Insurance
17.1. .The Contractor agrees that in order to protect itself and the City of Richfield
under' the indemnity .provisions set forth. in Section 1,6 of this Agreement, it will at -all
times during the term of this Agreement; maintain, at a minimum, the following
.insurance policies:
a. Workers Compensation Insurance. The Contractor shall maintain worker's
compensation insurance in compliance with all applicable statutes
including .Chapter 176 of the . `Minnesota Statutes. Such .policy shall
include Employer's Liability. Coverage and at` least-such amount(s). as -are
customarily provided in worker's compensation policies issued in
Minnesota. Contractor further agrees to require all subcontractors'. and
independent `contractors to maintain worker's compensation insurance in
compliance with all applicable statutes and to monitor the compliance of
:such subcontractors and independent contractors with the; applicable
statutes:
b. Commercial General Liability Insurance. The Contractor shall' maintain
`.Occurrence :"Based- Commercial General Liability Insurance {"CGL");:
providing coverage on an "occurrence", rather than on a "claims made"
basis, which policy shall include coverage for the Completed Operations
Hazard,- and which shall also include a Broad Form General Liability
• Endorsement, ;ISO number GL 0404, or an equivalent form (or forms); so
long as such an equivalent form (or forms) affords coverage which is in all
material .respects at least as ;broad.-'Any equivalent :form (or .forms) of
coverage shall be approved by'the City.
The Contractor agrees to maintain total liability policy limits of at least
-.One Million Dollars:. ($1,000,000), applying to liability for Bodily Injury,
Personal Injury, and Property Damage; which total limits may. be satisfied
by the limits afforded under its :Occurrence Based CGL policy as.specified
above; or by such policy. in combination with the limits. afforded by an
Umbrella .Liability Policy (or: policies) provided, however,. that the
coverage afforded ::under any such Umbrella. Liability Policy shall be at
least as broad as that afforded by -the underlying .occurrence based .CGL
Policy as specified above..
a Automobile Liability Insurance:: The Contractor shall maintain automobile
liability insurance covering: liability for Bodily- Injury and Property
Damage arising out of the ownership, use,, maintenance, or operation of all
owned, non-owned,and hired`automobiles.. and other motor vehicles. Such
policy shall provide total liability. limits. for combined Bodily Injury and/or
Property Damage in the amount -of at least One Million Dollars
_.($1,000;000)_ per accident, which total limits maybe satisfied by the limits '
afforded under such policy, or by such policy in combination with the
320078v1 MTN RC145-578 10
/~-ll
limits afforded by an Umbrella :Liability Policy (or policies) provided,
however, that the coverage afforded under any such Umbrella; Liability
Policy shall be at leash as broad as that .afforded by `the underlying
automobile liability insurance policy.
The City of Richfield. shall be named as >"additional insured" parties with respect to ..the
insurance policies specified in (b) and' (c) above. The Contractor shall. not. commence
work until a Certificate, of :Insurance evidencing all of the insurance policies required
.. above is approved and a written Notice 'to Proceed -is issued by an authorized-
- representative of the City. The City shall, at any time:during the term of this agreement,.
-have the-right to require that the Contractor secure any additional-insurance, or additional
feature to-existing insurance; as the City may reasonably require for the. protection. of its
interests or those of the public. It is expressly understood that the City does not in any
way represent that the minimum'.:. insurance coverage set:~forth" in this paragraph 'is
sufficient or adequate to protect the interest or liabilities of the Contractor.
Section 18. Bond
18.1. No payment or performance bonds for,the Work shall be required pursuant to
1Vlinn. Stat. § :574.26:
Section 19. ' Lien Waiver
• 19.1. Neither the Contractor nor any subcontractor or other person or entity furnishing
labor, equipment, or materials in connection with the Work'-shall file any mechanic's lien
against the City'sbuildings, structures or land or any part thereof, provided that the City
makes all, payments due to Contractor under this Contract.. The Contractor shall protect,
defend, ,indemnify,` and hold harmless -the City of Richfield .from any and all claims,
demands, or actions of whatever nature arising out of :work, labor, equipment, or
materials furnished. by the Contractor or its subcontractors in connection with the Work,
provided that the City makes all payments due _to Contractor under this Contract.
Payment.' of the`Contract Price shall not be due-until he Contractor has. delivered to the
City lien. waivers acceptable to the City, which release -the City.. from all liens .that: may
arise in connection with the Work. The Contractor shall list on the attached Exhibit A the
names of all suppliers and/or subcontractors that will- provide materials, services, or labor
,. in connection with the Work. The: Contractor;will notify the City of any changes in this-
list prior o the commencement of the Work.
Section 20. Subcontractors
20.1. Contractor agrees to bind every subcontractor by the terms; conditions, and
provisions set-forth in the Contract that are applicable to the subcontractor's work, unless
otherwise specifically agreed. otherwise in writing by the City.
•
320078v1 MTN RCi45-578 ` 11
Section 21 Assignment
21.1. This Contract shall be binding upon the Contractor; its legal representatives, heirs,
successors, and assigns. No assignment or attempted assignment of this- Contract or any
rights hereunder. shah be effective, unless the written consent of the City is first obtained.
No such assignment, even if consented to by the City, shall relieve the Contractor from
..liability under this :Contract for. the.. performance and completion ; of the ::Work in
accordance. -with -ahe Contract. :Notwithstanding -the ,foregoing; Contractor shall be
entitled to use subcontractors to perform the Work.
Section. 22, Entire Agreement _
22.:1.. The Contract-contains all the terms, conditions, and provisions pertaining- to the'_
Work to be .completed by the Contractor, :there being no other under§tandings,
agreements, or warranties, express or implied. ,All prior negotiations and dealings
regarding the subject matter of the Agreement.-are superseded by and: merged ntothe
Contract.
Section 23. APPI~cable Law
23.1. This Contract shall be .construed'n accordance. with `and governed by'the laws of
the state of Minnesota.
• Section 24. Amendment
24.1. This Contract may be modified or amended only with the written approval of the
City and-the Contractor.
Section 25. `Construction -
25..1. In the -event that any one or more of the provisions of this Contract, ar any
application thereof, shall be found to be invalid, illegal, or.otherwise unenforceable, he
validity, legality, and enforceability of the remaining provisions . or any application
.thereof shall not in any way be affected or impaired thereby....
Section 26. Authority
26::1. Each of the undersigned partieswarrants .that it has the full authority to execute
this Contract, and each individual signing this Contract on behalf of a corporation hereby
warrants that he or she has full authority o sign on behalf of the corporation and that he
or she represents and binds such corporation thereby.
Section 27. Waiver .-
27.1. No failure by he'City to insist upon the strict'performance of any covenant, :duty;
agreement, or condition contained in this Agreement onto exercise any right or remedy
320078v1 1VIT'N RG145-578 12
I2~-~ 3
consequent upon a breach thereof 'shall :constitute .a waiver of any such breach or any
other covenant,. agreement, term; or condition;. nor -does it imply that -such covenant,
agreement, term, or condition maybe waived again.
Section 28. Payments to Contractor and Completion
28.1. The Contractor shall be paid upon completion of the Work in accordance with the
payment schedule of the City, if any, and this section.
28.2. Application for. Payment. Prior to receiving payment for- Substantial. Completion
of the Work, the Contractor shall in writing state that the respective portion of the
- Work has -been substantially completed and 'is free and clear of all liens as
provided in this Contract.... Upon Substantial Completion and -inspection and
verification by the City, the.- payment for that portion of the Work shall be made.
Final payment shall be made when Contractor certifies that Final Completion has
been achieved and verified by the City.
IN WITNESS WHEREOF, the parties- have caused this Contract to be duly executed, in
their names and behalves and on or as of the date and year first above written.
THE CITY OF RICHFIELD
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320078v1 MTN RC145-578 ` 13
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CITY OF RICHFIELD, MINNESOTA
Bid Opening
• September 13, 2007
2:OO p.m.
2007 Demolition of 6600 Oakland Ave. So.
.Pursuant to requirements of Resolution No. 1015, a meeting of the Administrative Staff was called by
Nancy Gibbs; City Clerk, who announced that the purpose of -the meeting was to receive, open and
read aloud, bids for the demolition of 6600 Oakland Avenue South, as advertised in the official
newspaper on Augusf 30, 2007.
Present: Nancy Gibbs, City Clerk
Cheryl Krumholz, City. Manager Representative
Kristin Asher, Assistant: City~Engineer
The following bids were submitted and read `aloud:
i
The City Clerk announced thaf the bids-would be tabulated and considered at the September 25,
2007 City Council Meeting:
Nancy. Gibbs City Clerk,
_~
,Proposed Bidder's Disposal
Vendor , Subcontractor Qualifications `Facility Form Total Bid
Form (004336) (004513) :(004523)
Doboszenski & Sons, Inc.. ~ ~ ~ $18,650.00
Loretto; MN
Roger Peterson Construction ~ ~ ~ $17,530.00
Blaine, MN'
Jay Bros., Inc. ~ ` ~ ~ $19,905:00
Forest Lake, MN
STAFF REPORT
CITY COUNCIL MEETING
SEPTEMBER 25~ 200.7
~`
ITEM FOR COUNCIL CONSIDERATION:
Consideration of a Land Exchange Agreement between the City and Morris Nilsen Funeral
Cha' el; Inc:, as art-of the 66th Street and Portland Avenue Intersection Pro'ect.
I. RECOMMENDED ACTION:'
By Motion: Authorize the Mayor and City Manager to execute the
proposed Land Exchange Agreement between-.the City of Richfield
and Morris Nilsen Funeral Chapel., Inc. for the acqusition'of land
needed to com" ete the`ntersection ro'ect:
TI. " BACKGROUND
Portions of the Nilsen Funeral Chapel property have been identified as required in
order to proceed with the 66th Street and Portland-.Avenue Intersection Project.
Staff has negotiated with the property owner to reach a proposed land exchange
agreement, acceptable and reasonable, for-.the property takings and easements.
• The proposed agreement avoids,the condemnation process and includes the
exchange of 9,717 sq. ft. of remnant` land for 8,914 sq. ft. of -land from the,- Nilsen
-site.
0925NiIsenPA.doc
At the August 14, 2007 Council Meeting, the Council was asked tb.continue
• consideration of this item because,: all terms of the agreement were not reached and
..,::available for consideration at that time. The terms of the agreemenf were discussed
with the Councif at the September 19; 2007 Special City Council Closed Executive
Session. ,The -final agreement will be available at the' Council Meeting on
September;25, 2007.
III. BASIS OF RECOMMENDATION
A.. POLICY
. • Portionsof this property have been identified as necessary to be,
acquired for the 66th Street `and Portland Avenue` Intersection .Project.
• Right-of way acquisition~procedures Set forth by the Minnesota
Department of Transportation and the Federal Highway Administration
are being;followed.
B. CRITICAL ISSUES
• All property for the project must be acquired. by the City prior to
September 30, 2007 to secure the federal funds.
C. FINANCIAL `
• :The City will be responsible for payment of closing costs. (Est. $4,000)
D. LEGAL
• The City Attorney has .overseen the agreement preparation and Wilk be
.available to answer any questions.
IV. ALTERNATIVE RECOMMENDATION~S~
• Do not authorize the Mayor and City 'Manager to enter into the. proposed
Land Exchange Agreement -and direct staff on how toproceed
V. ATTACHMENTS
• Site Plan
Summary of-land :exchange agreement terms
VI. PRINCIPAL PARTIES EXPECTED AT MEETING
• Morris Nilsen, Owner of Nilsen Funeral Chapel, lnc.
1 ~® j
13- ~.
• SUMMARY OF LAND EXCHANGE AGREEMENT TERMS
1. Road Parcels. Nilsen will convey parcels that City needs for road project, and closing
on those parcels will occur prior to the September 30,.2007 deadline for federal fund.
This -sale will be completed and final, and Nilsen will have no, right to require return of
the parcels,. regardless of what happens with` the issues identified as "Unresolved Issues"
(see below for "Unresolved Issues"). The Road Parcels that will be -taken are shown on
ExhbitA.
2. Proposed Land Exchange; City Property and Driveway Easement Tlie discussions with
' Nilsen have always contemplated that, in order to .mitigate the. damages .caused by the
taking of the Road Parcels,. the City would convey to Nilsen a .part of: the .former BP
Amoco site,` which Nilsen would use for. parking, and that the Cty`would also convey a
driveway easement to Nilsen so that he would retain his access to 66~' Street: The
_ agreement refers to those real. estate interests as "the City Property" and "the Driveway
Easement." The land and easement to be conveyed to"Nilsen, and the improvements
that would be constructed, are shown on the attached Exhibit B.
3. Compensation for.Road Parcels; Unresolved Issues. Nilsen has identified three issues
• ~ that: have not been. finally resolved, and his willingness to accept the City Property, and
Driveway Easement in exchange. for the Road Parcels, without any additional.
compensation, depends upon the outcome of those issues. The Unresolved Issues are:
a. Final design of project. Nilsen conceptually. agreed to an equal exchange based on
the proposed roundabout design .for the intersection. If the final design changes, the
changes in the intersection :could result in the need for more right of way from
Nilsen, or it could reduce the amount of land that the City could convey to Nilsen, or
if could impact his access into and out of his site: (e.g., some design configurations
could require .a median that would eliminate Ieft-in and left-out access from some
driveways).
`b. Remediation of .contamination. `The BP Amoco site is .known to contain some
contamination, and the extent of contamination will not be known until the building
is demolished and site work is done. `Nilsen does not want to accept the . City
Property without knowing that the MPCA has provided approvals evidencing-.that
the site has been cleaned up, We have had extensive discussions abouf "how clean"
-.the City needs to make the site. The current. form of agreement requires that the site
be approved by the MPCA for commercial. use, consistent with Nilsen's:proposed
use. This is in contrast to clean. up .for residential use, which is a higher standard. It
is possible that when ahe work is done, the:.. site ;will actually meet ..residential
standards, buf the City is not required to clean up to that level:
_ l3-
c. Title restrictions. When Jack Mooney bought the property from BP Products, BP
Products put restrictions on the use ofthe property, to.,prevent it from being used for
.:.residential uses and.to require that Mooney and any successor in title indemnify BP
Products against any claims for contamination of the site. Nilsenwould like the City
to remove the restrictions;:. and -the restrictions provide that BP may, release the
restrictions. after government approvals are obtained for a-clean site. However, there
is no guarantee that BP will release the restrictions; and we can't find out until after
the clean up is completed.
4. Alternatives on Compensation Thee agreement provides two .:alternatives,. depending.
upon how the Unresolved Tssues are resolved. Those alternatives are:
a: If (i) the final design is the roundabout and the site improvements are as shown on
Exhibit B; and (ii) .the City cleans up the City Property. to a commercial standard-
approved by MPCA or a higher standard; and: (iii) the title restrictions are resolved
as discussed in the next sentence; THEN Nilsen will; accept the City,Properly, and
the City will have to comply with the requirements explained at paragraph 5 below.
With respect to the title restrictions, the City must obtainclarification that Nilsen's
..proposed use of the .City Property will. not violate the BP restrictions, and the City
..must defend and indemnify Nilsen and its successors in title against any and all
claims made under the Environmental Restrictions., In addition, the deed for the
City Property must include a restrictive covenant under which the City covenants
and agrees that if.. the City acquires. title to the City, Property, :voluntarily or by
eminent,domain, from Nilsen within 20 years of the date of the deed, then (1) the-
fair market :value of the City Property will be determined as though the City
Property was not encumbered by the restrictions and had no environmental-
contamination in excess of-standards allowed for residential use and (2}-:the City,
and not Nilsen; will be financially responsible for ..any environmental remediation
actually required to meet applicable federal and state .statutory and regulatory
standards for the .City's intended use of the City Property. The deed also must
contain a provision under which he City indemnifies Nilsen and successors in title
against any claims under the BP restrictions.
b. If any ONE of the .requirements- in a.-above is. NOT .met, then Nilsen has no
obligation to accept the City Property,. and Nilsen can require the City to commence
condemnation to-determine: what the appropriate compensation for the Road Parcels
is. The City is still 'required to offer to Nilsen the City Property and ,Driveway
Easement (or whatever parts of those are available so that he can try to reduce his
damages,' but he is not required to take it. (For example, if the final design does not
allow access onto 66'x, the City still needs to offer the City Property to Nilsen (for
lost parking), and Nilsen could accept it, but claim .damages: for the lost access to
,
66~'.) In other words, the City. is' assured. of getting he Road Parcels now,_but if
things don't turn out the way everyone expects, Nilsen hasn't given up the ability to
' _3r ~( _ _
get paid for-the damages he suffers. If condemnation is necessary, the parties agree
that the dateof taking will be the date that the. City acquired title to the Road Parcels.
:There is one outstanding.:: issue that Nilsen must decide. Nilsen: requested a
guaranteed' 8% interest rate on the condemnation award.' (The aw guarantees 5%
right now, but allows owners to prove that they are entitled to a higher interest rate.).
The City wanted Nilsen to acknowledge that the.law of mitigation: of damages
would apply: in the condemnation award; and Nilsen initially rejected that proposal:
Nilsen has been told that if he wants 8%, he must acknowledge-that mitigation
' applies. If he doesn't acknowledge that mitigation applies; then he .only gets. the
interest that the law otherwise provides. This is his election.
5. Site Improvements. IF all the conditions are met so that condemnation is avoided, then
the City is `required to .complete the remedation`of environmental .conditions, :obtain
MPCA approval, and construct the replacement parking=-and the Driveway" Easement at
the City's cost. See Exhibit B. Nilsen is responsible for some minor costs related to
sign relocation. :The City must have the improvements completed 'by November for
Nilsen's use, or it must pay $500 for each day that completion is delayed: This :cost
. would be passed on to the City's contractor through the contract...-.The City is required to
post a letter of credit of $15,000'to secure the liquidated damages-payment.
6. Ap raisal. Because condemnation is' `possible, Nilsen believes it is necessary` to obtain
• an appraisal of his property before the road project is constructed. He is requesting
$5000 for that appraisal.. We have proposed that he only have the. inspection done at this
time and that we reimburse him for actual costs, up to the. $5000 (which is provided by
aw, if condemnation is necessary later).
7. Incentive Payment. Nilsen has requested a payment of $_1:0
000-in consideration of his
,
willingness to close on the Road Parcels on an expedited basis. His attorney's reasoning
is that; due; to the :City's: unique timing concerns :and the uncertainties raised by the
-
Unresolved Issues,
this agreement 'has ..been more complicated to negotiate than
"typical" agreements that don't have such unique circumstances. .
•