The URL can be used to link to this page

06-10-03 agendaCITY OF RICHFIELD, MINNESOTA TUESDAY, JUNE 10, 2003 ~ SPECIAL CITY COUNCIL WORKSESSION COUNCIL CHAMBERS 6700 PORTLAND AVENUE 5:30 P.M. Call to order Roll call 1. Discussion of City of Richfield service fee(s) implementation process A~joarnment REGULAR CITY COUNCIL MEETING COUNCIL CHAMBERS 6700 PORTLAND AVENUE 6:30 P.M. AGENDA INTRODUCTORY PROCEEDINGS Call to order Roll 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 opporturnty 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: Pledge of Allegiance Approval of minutes of (1) Special City Council Worksession of May 27, 2003; (2) Regular City CounciC Meeting. of May 27, 2003; and (3} Special City Council Meeting of June 4, 2003 PRESENTATIONS 1. Presentation of 30th Annual Gene and Mary Jacobsen Outstanding Citizen Award to Russ Susag 2. Annual meeting with Human Rights Commission 3. Presentation by Jennifer Swenson, Miss Richfield Ambassador 2000 and current Miss Richfield Coordinator 4. Presentation of Richfield Chamber of Commerce 2003 Small Business Hall of Fame Award to Richfield Municipal Liquor Stores 5. Receipt of the City of Richfield Comprehensive Annual Financial Report for fiscal year ended December 31, 2002 Staff Report No. 125 Notes: COUNCIL DISCUSSION 6. Council discussion • Hats Off To Hometown Hits Presentation by Kristin Abel, Adaptive Recreation Supervisor Notes: CITY MANAGER'S REPORT 7. City Manager's Report Notes: AGENDA APPROVAL 8. Council approval of agenda CONSENT CALENDAR 9. 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 Council discussion and action. All items fisted on the Consent Calendar are recommended for approval. A. Consideration of approval of first reading of amendment to Chapter VIII of Richfield City Cade for new right-of--way ordinance and setting public hearing and second reading for July 8, 2003 S.R. No. 126 B. Consideration of approval of resolution declaring costs to be assessed and ordering preparation of assessment roll for 2002 removal of diseased trees from private property and setting public hearing for July 22, 2003 S.R. No. 127 C. Consideration of approval of resolutions declaring costs to be assessed and ordering preparation of assessment roll for 2002 Lyndale/HUB/Nicollet maintenance, proposing similar assessment process for 2004 and setting public hearing for July 22, 2003 S.R. No. 128 D. Consideration of approval of resolutions declaring costs to be assessed and ordering preparation of assessment roll for 2002 77th Street maintenance, proposing similar assessment process for 2004 and setting public hearing for July 22, 2003 S.R. No: 129 E. Consideration of approval of resolution authorizing agreement between Hennepin n County and City of Richfield providing $6,000 in County participation in grinding d street surFace and striping of bike trails on 76th Street between Lyndale an Emerson Avenues S.R. No. 130 F. Consideration of approval of resolution granting off-street parking permit at 220-224 East 78th Street (7745 Second Avenue) S.R. No. 131 G. Consideration of approval of Stipulation of Final Settlement and payment of business relocation claim to Inside Innovative Sports for expenses associated with vacating racquet club building owned by Century Court Apartments as part of Penn Avenue Bridge Project S.R. No. 132 H. Consideration of approval of specifications and authorization to advertise for bids to move houses in 6600 and 6700 blocks of 18th Avenue; Airport Noise Acquisition Program S.R. No. 133 Notes: 10. Consideration of items, if any, removed from Consent Calendar ''Notes: RESOLUTION 11. Consideration of resolution authorizing MnDOT Agency Agreement No. 83108, Amendment No. 1 to reimburse City of Richfield for relocating gas main using federal funds in connection with Penn Avenue Bridge over I-494 Project Staff Report No. 134 Notes: PUBLIC HEARING 12. Continue to July 8, 2003, public hearing and second reading of transitory ordinance authorizing sale of parcels at 7645 Aldrich Avenue and 7646 Lyndale Avenue to The Cornerstone Group Staff Report No. 135 Notes: OTHER BUSINESS 13. 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 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: 14.Adjournment Auxiliary aids for individuals with disabilities are available upon request. Requests must be made at least 96 hours in advance to the Administrative Services Director at 612-861-9702. AGENDA SECTION: Pv 1 i i ng AGENDA ITEM # ~ 2 REPORT # 1 STAFF REPORT CITY COUNCIL MEETING JUNE 10, 2003 REPORT PREPARED BY: JULIE URBAN, COMMUNITY DEVELOPMENT SPECIALIST NAM&, TITLE COUNCIL PRESENTER: DEPARTMENT DIRECTOR REVIEW: "~ SIGNATURE REVIEWED BY CITY MANAGER: ~, ~j ITEM FOR COUNCIL CONSIDERATION: Consideration to continue public hearing and second reading regarding the attached transitory ordinance authorizing the sale of parcels located at 7645 Aldrich Avenue and 7646 Lyndale Avenue to The Cornerstone Grou to Jul 8, 2003. I. RECOMMENDED ACTION: By motion: Approve to continue the public hearing and second reading authorizing the sale of parcels located at 7645 Aldrich Avenue and 7646 Lyndale Avenue to The Cornerstone Group to July 8. 2003. __ II. BACKGROUND • First reading of a transitory ordinance to sell remnant parcels to The Cornerstone Group for the Kensington Park development was held on May 13, 2003. • However, additional adjustments need to be made on the proposed property line n before sale of the parcels can be finalized. • Continuing the public hearing to July 8 will give staff sufficient time to address issues regarding the proposed property line. 0610LGWparcels2 III. BASIS OF RECOMMENDATION A. POLICY • Staff needs additional time to address an issue regarding the proposed property line. B. CRITICAL ISSUES • The property line issue affects the amount of property to be sold to The Cornerstone Group. C. FINANCIAL • There are no financial issues caused by the continuance. D. LEGAL • First reading of the transitory ordinance was held on May 13, 2003. • A legal notice was published in the Sun-Current on May 29, 2003. IV. ALTERNATIVE RECOMMENDATION~S~ • Proceed with the proposed sale; however, adjustments may be necessary later to correct property line issues. V. ATTACHMENTS • N/A VI. PRINCIPAL PARTIES EXPECTED AT MEETING • N/A AGENDA SECTION: onsent AGENDA ITEM # q3 REPORT # 127 J STAFF REPORT CITY COUNCIL MEETING JUNE 10, 2003 REPORT PREPARED BY: RANDY HUGHES, OPERATIONS COORDINATOR NAME, TITLC COUNCIL PRESENTER: TITLC DEPARTMENT DIRECTOR REVIEW: ~ ~~ REVIEWED BY CITY MANAGER: SIGNATLJRC ITEM FOR COUNCIL CONSIDERATION: Consideration of the attached resolution declaring costs to be assessed for removal of diseased trees from rivate ro ert for work ordered in 2002. I. RECOMMENDED ACTION: By Motion: Adopt the attached resolution declaring costs to be assessed and ordering the preparation of the proposed assessment roll for the removal of diseased trees from private property for work ordered in 2002 and setting the date of hearing on the proposed assessment for July 22, 2003. II. BACKGROUND Property owners of diseased trees have four options available: 1. Remove the tree themselves. 2. Hire and pay their own contractor. 3. Hire the City's contractor and pay for the removal within 30 days. ~ 4. Use the City's contractor and request that the cost of the tree removal be assessed against their property tax. In the period from January 1, 2002 through December 31, 2002, 41 property owners chose the fourth option. 0610TreeAssess ,~'~ III. BASIS OF RECOMMENDATION A. POLICY The work has been done with prior approval from the affected residents. B. CRITICAL ISSUES Minnesota State Statute requires the County to be notified of all special assessments. C. FINANCIAL The costs to be assessed for the removal of Dutch Elm diseased trees on private property for work ordered during the period January 1, 2002 through December 31, 2002 have been determined to be $42,672.20. The original source of funding to have the work done is through the City's Permanent Improvement Revolving Fund. The property owner may prepay the special assessment, but if it is certified on or before October 10, 2003, for the 2004 taxes, the interest rate is eight percent with the payment spread over three years. D. LEGAL _ No legal issues are apparent at this time. The City Attorney will be in attendance at the Council meeting should a legal question arise. IV. ALTERNATIVE RECOMMENDATION~S~ • Council may revise the special assessment roll as deemed necessary following the public hearing. V. ATTACHMENTS • Resolution VI. PRINCIPAL PARTIES EXPECTED AT MEETING None RESOLUTION NO. RESOLUTION DECLARING COSTS TO BE ASSESSED AND ORDERING PREPARATION OF PROPOSED ASSESSMENT FOR REMOVAL OF DISEASED TREES FROM PRIVATE PROPERTY FOR THE PERIOD OF JANUARY 1, 2002 TO DECEMBER 31, 2002 WHEREAS, costs have been determined for the removal of diseased trees from the following private properties in the City of Richfield and the expenses incurred or to be incurred for such work ordered during the period of January 1, 2002 through December 31, 2002 amount to $42,672.20. Property Address Pro ert Identification Number 7112 Oak Grove Blvd. 33-02824-11-0024 6600 Logan Ave So 28-02824-32-0001 6612 Logan Ave So 28-02824-32-0002 318 W. 64th Street 27-02824-22-0074 7212 Humboldt Ave. So 33-02824-24-0001 7533 Girard Ave. So. 33-02824-42-0092 7304 Portland Ave. So. 34-02824-14-0016 7006 Logan Ave. So. 33-02824-22-0006 7538-5th Ave. So 34-02824-41-0101 6717 Harriet Ave. So. 27-02824-32-0087 6745 Lakeview Ave. 28-02824-31-0078 6325 Pillsbury Ave. So. 27-02824-21-0046 7039 Knox Ave. So. 33-02824-21-0041 6700 Irving Ave.So. 28-02824-31-0021 7215 Pillsbury Ave. So. 34-02824-24-0046 6740 Upton Ave. So. 29-02824-42-0133 7010 James Ave. So. 33-02824-21-0034 7008 .Oakland Ave. So. 35-02824-22-0061 6312 Nicollet Ave. So. 27-02824-21-0063 6733 Lyndale Ave. So. 27-02824-32-0058 6226 Garfield Ave. So. 27-02824-22-0068 7626 Nicollet Ave. So. 34-02824-34-0006 7238 Park Ave. So. 35-02824-23-0095 7144 Portland Ave. So 34-02824-11-0005 6421-2nd Ave. So. 27-02824-13-0007 6855 Oakland Ave. So, 26-02824-33-0100 6824 Russell Ave. So. 29-02824-44-0047 6701-1st Ave. So. 27-02824-42-0010 6301 Colfax Ave. So. 28-02824-11-0062 6933 Sheridan Ave. So. 29-02824-44-0127 7533 -5th Ave. So. 34-02824-41-0027 6318 Oliver Ave. So. 28-02824-22-0121 7101 Penn Ave. So. 33-02824-22-0127 ---~. 6711 Girard Ave. So. ' 6633 Lynnwood Blvd. 6436 Oliver Ave. So. 7227 James Ave. So. 6310 Oliver Ave. So. 6324 Blaisdell Ave. So. 6945 Morgan Ave. So. 7030 Knox Ave. So. 28-02824-42-0022 28-02824-41-0032 28-02824-23-0005 33-02824-24-0022 28-02824-22-0120 27-02824-21-0055 28-02824-33-0113 33-02824-21-0064 NOW, .THEREFORE, BE IT RESOLVED by the City Council of the City of Richfield, Minnesota: 1. The total cost to be assessed against benefited property owners is declared to be $42,672.20. 2. The City Clerk shall forthwith calculate the proper amount to be specially assessed for such work against each benefited property, and shall file a copy of such proposed assessment in his office for public inspection. 3. The Clerk shall, upon the completion of such proposed assessment, notify the City Council thereof. --~ 4. A hearing shall be held on the 22nd day of July, 2003 in the City Hall Council Chambers at 6:30 p.m., or as soon as hereafter as it may be reached on the agenda, to pass upon such proposed .assessment and at such time and place all persons owning property affected by said diseased tree removal assessment will be given an opportunity to be heard in reference to such assessment. 5. The City Clerk is hereby directed to cause a notice of the hearing on the proposed assessment at least two weeks prior to the hearing, and he shall state. in the notice the total cost of the diseased tree removal. He shall also cause mailed notice to be given to the owner of each parcel described in the assessment roll not less than two weeks prior to the hearing. Adopted by the City Council of the City of Richfield this 10th day of June, 2003. Martin J. Kirsch, Mayor ATTEST: Nancy Gibbs, City Clerk AGENDA SECTION: Resolution AGENDA ITEM # 11 REPORT # 134 STAFF REPORT CITY COUNCIL MEETING JUNE 10, 2003 REPORT PREPARED BY: TOM FOLEY, TRANSPORTATION ENGINEER NAME, TITLE COUNCIL PRESENTER: NAME, .TITLE DEPARTMENT DIRECTOR REVIEW: SIGNAT RE REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDERATION: Consideration of Amendment No. 1 to Minnesota Department of Transportation Agency Agreement No. 83108 for the use of Federal Funds in Relocating a Gas Main. related to the Penn Avenue Bridge over I-494 Project. I. RECOMMENDED ACTION: By Motion: Approve the attached resolution authorizing Agency Agreement No. 83108 Amendment No. 1 which allows for the Minnesota Department of Transportation to reimburse the City of Richfield for relocating a gas main using federal funds in connection with the Penn Avenue Bridge over I-494 Project. III. BACKGROUND ~ The City requested federal highway funds to pay for 90% of the cost of relocating a gas main as part of the replacement of the Penn Avenue Bridge Project. To that effect Minnesota Department of Transportation Agency Agreement 83108 was approved by Council on April 23, 2002. The gas main work is now completed and the cost incurred exceeded the $1,660,000 estimate used in the previous Agency Agreement with the Minnesota Department of Transportation. Actual costs for the relocation of the gas main amount to $1,867,225. 0423PennAgency83108 In order to receive additional federal funds, the City is required to enter into an amendment to Agency Agreement 83108 with the Minnesota Department of Transportation (MnDOT). The agreement allows MnDOT to pass the federal funds through to the City to pay for the construction work. III. BASIS OF RECOMMENDATION A. POLICY • The Penn Avenue Bridge over I-494 Project is identified in the City's 2001 Capital Improvement Budget. B. CRITICAL ISSUES • The proposed agreement will provide $1,653,500 in federal highway funds to cover 90% of the costs of relocating a gas main in connection with the Penn Avenue Bridge Project. C. FINANCIAL • The City will use federal highway funds to cover 90% of the construction costs. The remaining funds for the gas main work will come from funds provided by the Best Buy Company. D. LEGAL • The City Attorney will be available to answer any questions on the agreement. IV. ALTERNATIVE RECOMMENDATION(S~ • None. V. ATTACHMENTS • Resolution authorizing the Mayor and City Manager to execute Minnesota Department of Transportation Agency Agreement No. 83108 Amendment No. 1 for Federal Participation in Force Account Work for the Penn Avenue Bridge Project. • MnDOT Agency Agreement No. 83108 Amendment No. 1 for Federal Participation in Force Account Work for S.P. 157-020-20 and 157-020-22; M.P. HPPMN 10(102), the Penn Avenue Bridge over I-494. VI. PRINCIPAL PARTIES EXPECTED AT MEETING • None anticipated. n ~. RESOLUTION NO. RESOLUTION AUTHORIZING MAYOR AND CITY MANAGER TO EXECUTE MINNESOTA DEPARTMENT OF TRANSPORTATION (MnDOT) AGENCY AGREEMENT NO. 83108 AMENDMENT NO. 1 FOR FEDERAL PARTICIPATION IN FORCE ACCOUNT WORK FOR THE PENN AVENUE BRIDGE PROJECT CITY PROJECT N0.401-30-521; S.P. 157-020-20 AND 157-020-22; M.P. HPPMN 10(102) BE IT RESOLVED, that pursuant to Minnesota Stat. Sec. 161.36, the Commissioner of Transportation be appointed as Agent of the City of Richfield to accept as its agent, federal aid funds which may be made available for eligible transportation related projects. BE IT FURTHER RESOLVED, the Mayor and City Manager are hereby authorized and directed for and on behalf of the City of Richfield to execute and enter into an agreement with the Commissioner of Transportation. prescribing the terms and conditions of said federal aid participation as set forth and contained in "Minnesota Department of Transportation Agency Agreement No. 83108 Amendment No. 1, a copy of which said agreement was before the City Council and which is made a part hereof by reference. --~ Adopted by the City Council of the City of Richfield, Minnesota this 10th day of ,' June, 2003. Martin J. Kirsch, Mayor ATTEST: Nancy Gibbs, City Clerk CERTIFICATION I hereby certify that the foregoing Resolution is a true and correct copy of the Resolution presented to and adopted by the City of Richfield at a duly authorized meeting thereof held on the 10th day of June, 2003 as shown by the minutes of said meeting in my possession. Nancy Gibbs, City Clerk Notary Public My Commission expires Mn/1)iV! contract N-o. ~~ t-U2S CFMS No. 83108 ~, AI~NI3N,LENT NO. 1 TO I~~OT CONTRACT NO. 83108 Contract Start Date: 5/2/02 Total Contract Amount: $ 1,653,500.00 Original Contract Expiration .Date: _5/2105 Original Contract: $ 1.494,000.00 Previous Amendment(s) Total: $ 0.00 Current Amendment: $ 159,500.00 Project Identification: Penn Avenue Bridge Project State Project (SP): 157-020-20 and 157-020-22 Trunk Highway 494 This amendment is by and between the State of Minnesota, through its Commissioner of Transportation ("Mn/DOT") and the City of Richfield, Minnesota ("Cit}~'). Recitals 1. The Mn/DOT has a contract with the City identified as Mn/DOT Contract Number 83108("Original Contract") to provide federal funds for utility relocation and replacement as impacted by work on Interstate 494 during the Penn Avenue Bride project. 2. The agreement is being amended to reflect actual costs of relocation rather than estimates of the work cost. 3. The Mn/DOT and the City are wilting to amend the Original Contract as stated below. Contract Amendment in this Amendment deleted contract ternis will be s~e)reat and the added contract terms will be underlined REVISION 1. Article I.B.1. "ELIGIBII.ITY/COSTS" is amended as follows: B. ELIGIBILITY /COSTS. The estimated cost of the Force Account Work is $~;H6~;8AA (.867,225.00. 1. It is anticipated that 90% (up to $ ~-,-094;889 1.653 500 of the cost of Force Account Work is to be paid from federal funds made available by the Federal Highway Administration, and that the remaining 10% will be paid by the City. The City will pay any part of the cost or expense of the work that the Federal Highway Administration does not pay. REVISION 2. Article I.B.7. "ELIGIBILITY/COSTS" is amended as follows: For costs expected to exceed $ 1.867,225.00, the City must request the preparation and execution of a supplement to this agreement, prior to incurring such costs. Except-as amended herein, the terms and conditions of the Original Contract and all previous amendments remain in full force and effect. THE BALANCE OF THIS PAGE HAS BEENIIVTENTIONALLYLEFTBZANK. (rev 03-07-03)CM RI/DOT EN~riTlyIRRANCE VERIFICATION tndividtral certifies !!tat fmtds !lain been encumbered as required by Ali . so/ rtes § 6A I S d t 6C.05. Signed: Dat '~ ~ CFMS Contract No. A- ~ ~~~ ~~ ~~ C[TY The City certifies that the appropriate person(s) have executed the contract on behalf of the City as required by applicable articles, bylaws, resolutions, or ordinances. By: Title: Date: ay: Title: ilate: r i (rev 03-07-03)CM l~tn/DOT Contract loo. 83 ]-08 __ _ DEPARTt1~ENT OF TRANSPORTATION Av: (with delegated authority) Title: Date: CO)v1MISSIONER OF ADMINISTRATION By: Date: ATTORNEY GENERAL As to form and execution By: Date: -~- ,:.., AGENDA SECTION: Consent AGENDA ITEM # 9$ REPORT # 133 J STAFF REPORT CITY COUNCIL MEETING JUNE 10, 2003 REPORT PREPARED BY: JULIE URBAN, COMMUNITY DEVELOPMENT SPECIALIST NAME, TITLE COUNCIL PRESENTER: DEPARTMENT DIRECTOR REVIEW: SIGNATURE REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDERATION: Consideration to approve specifications and authorize staff to advertise for bids for moving houses in the 6600 and 6700 blocks of 18th Avenue, Air ort Noise Ac uisition Pro ram. I. RECOMMENDED ACTION: By Motion: Approve specifications and authorize staff to advertise for bids to move houses in the 6600 and 6700 blocks of 18th Avenue, Air ort Noise Ac uisition Pro ram. II. BACKGROUND • Several properties located within the Airport Noise Acquisition Program (ANAP) area have been purchased with a $10 million grant from the Metropolitan Airports Commission (MAC). • To date, seventeen single family homes and two duplexes have been purchased and vacated and are candidates for being moved. • Environmental testing has been completed on these seventeen single family homes and two duplexes. Specifications have been prepared to bid the houses for moving. An ad would be published on June 19. Bid packages would be due July 9, and the Council would be asked to award bids on July 22. Houses would be moved by the end of September. 0610housemoving III. BASIS OF RECOMMENDATION A. POLICY • The houses purchased through ANAP are vacant and need to be moved or demolished. • It is appropriate to first attempt to move the houses in order to conserve these housing resources. B. CRITICAL ISSUES • One property purchased through ANAP cannot be moved because it has no basement. This property, and any properties not bid on for moving, will be demolished. • W.D. Schock will provide assistance throughout the moving process to ensure that the specifications are carried out appropriately. • Bid packages will also be mailed to the list of licensed house movers. • The Council may be asked to authorize a second bidding process later this year as additional properties become vacant and/or are purchased. ,~ C. FINANCIAL • Moving the houses will save money on demolition costs and may produce revenue that could be used for additional property purchases. D. LEGAL • An ad will be submitted to the Sun-Current and any other appropriate publication advertising the bids. IV. ALTERNATIVE RECOMMENDATION~S~ • Decide not to advertise for bid at this time. V. ATTACHMENTS • House Move Specifications VI. PRINCIPAL PARTIES EXPECTED AT MEETING • N/A (~ June 19, 2003 «Company» «Name» «Address» «City» RE: Sale by Sealed Quotation of Buildings by the City of Richfield (City) Dear House Mover: The City of Richfield is conducting a sale by sealed quotation for 17 single family and 2 two-family residential buildings that it currently owns. The buildings are located on 18`h Avenue South just west of Cedar Avenue in Richfield. Quotation packages are being mailed directly to house movers that are currently licensed with the State of Minnesota and who are currently members of the Minnesota Building Movers Association. W. D. Schock Company, Inc. is the designated representative of the City and will be conducting this sale by sealed quotation. If you have any questions regarding the sale by sealed quotation you will need to contact our office at 612-724-8898. The City will require the sold building to be removed no later than September 29, 2003. Scope of Services The scope of services for the moving of the building is specifically defined in the Contract for Sale of Building. Enclosed is a sample copy of the contract for your review. If you are a successful quoter you will be required to sign a Contract for Sale of Building as a condition to the quotation award. Failure to sign the Contract will result in the sale being awarded to the next highest quoter. The major requirements of the Contract for Sale of Building are as follows: • A deposit of $500 or 30% of the purchase price (whichever is greater) is required with the quote submittal. • The balance of the purchase price is due five business days following the Bid Award date of July 22. • Buyer shall submit a surety in the form of cash, certified funds or an irrevocable letter of credit in the amount of $5,000, which will be returned upon successful completion of the Contract. • Buyer is responsible for obtaining all necessary permits. • Buyer is responsible for water and sewer disconnects at the main. • Buyer will be provided with a hazardous materials report. It is the Buyer's full responsibility to remove, abate, mitigate and dispose of any hazardous materials in accordance with state and federal regulations. «Company» June 4, 2003 Page 2 • Buyer is responsible for demolition and removal of the basements. Basements shall be filled. • All buildings must be removed by September 29, 2003. Quotation Requirements Enclosed you will find the necessary information for quoting on each of the buildings. You must first complete the Quotation Form for each building on which you intend to offer a quote. Please read it carefully, it gives you important instructions on submitting your quotations. There is a Description Sheet for each building being sold. If you are interested in viewing the interior of the buildings for your convenience there will be an open house on from .All persons will be responsible for his or her own actions while on the property. Quotations must be sealed and delivered to the offices of the City of Richfield no later than 10:30 a.m. of July 9, 2003. Quotations will be publicly opened and read at of The Richfield City Council will be asked to award the successful quotation on July 22. The successful quoter will need to sign a Contract for Sale of Building by the end of the business day on July 23, 2003. The successful quoter will have five (5) business days from the quote approval by the City Council to close on any building. To close, the quoter will need funds for the remaining balance of the quote; $5,000.00 surety bond in the form of cash, certified funds, or bank letter if credit (Insurance performance bonds will not be accepted as surety); and necessary certificates of insurance. Upon closing, the quoter becomes the buyer and a Bill of Sale will be issued to the buyer. The buyer can then begin work. We invite you to participate in this sale by sealed quotation. If you have any further questions please contact our office. Again, when quoting, it is important that you thoroughly complete all of the information contained in the quotation package. Sincerely, Robert B. Swenson Vice President W.D. Schock Co. ~~ DESCRIPTION SHEET FOR THE SALE AND REMOVAL OF BUILDINGS ON CITY OF RICHFIELD OWNED PROPERTY ADDRESS: 6745 18th Avenue South Richfield, MN DESCRIPTION: Rambler, 3 bedroom with 1 bath, two-car attached garage. *(see attached pictures) The home was built in 1949. QUOTE AMOUNT: $ QUOTE SECURITY-30% of QUOTE AMOUNT: $ *(see below) *Quoter is required to submit this security with each house quoted on. If security is in the form of a personal check or cashier's check, a separate check must be issued for each house. $5,000.00 surety deposit will be required at closing (surety deposit shall be in the form of cash, letter of credit, or certified funds made payable to the City of Richfield) Buyer is responsible for city sewer and water disconnects at the main. Please contact the City of Richfield Inspections Division at 612-861-9860 for a permit. RemovaUCompletion date: September 29, 2003 Liquidated Damages on building Delay in Removing Building & Debris: $100.00 per day Information deemed reliable but not guaranteed. The house will be opened for inspection on information call WDSCO at 612-724-8898 I hereby quote the above amount. Signature between ;for further Date Front View of House R $#kt, ,~ QUOTE FORM Sealed quotes must be received in the office of the City of Richfield, 6700 Portland Avenue South, Richfield, MN 55423, not later than 10:30 a.m. on July 9, 2003, at which time, quotes will be publicly opened and read aloud. The Richfield City Council will be asked to award the successful bids on July 22, 2003. Successful Quoters shall execute a Contract for Sale of Building incorporating the terms described in the form attached hereto with respect to each house, and make all required deposits no later than July 29, 2003. If quoter does not close on the required date, the quoter shall forfeit the ability to acquire the house or houses. Forfeited houses shall then be awarded to the next highest quoter. Back-up quoter will then have two (2) business days to execute a Contract for Sale of Building incorporating the terms described in the form attached hereto with respect to each house, and make all required deposits. In the event of a tie quote amount, the award shall be determined by a lottery. The specifications governing this sale are set forth in the form of Contract for Sale of Building attached hereto. The items of property for sale are listed on the attached description sheet and may be inspected during the times shown on the Description Sheet. All property sold must be removed from the site on or before the removal date of September 29, 2003. The City of Richfield reserves the right to accept or reject any or all quotes or parts of quotes and to waive deformities therein. As provided by statute a quote containing an alteration or erasure of any price contained in the quote which is used in determining the highest responsible quote shall be rejected unless the alteration or erasure is crossed out and the correction thereof printed in ink or typewritten adjacent thereto and initialed in ink by the person signing the quote. Quotes made in pencil will be rejected. Quotes submitted by facsimile or e-mail cannot be accepted. In response to the terms herein specified, the undersigned, if award is tendered, agrees to purchase the items of property on the attached descriptions sheet at the price quoted opposite each item, subject to the terms of the Contract for Sale of Building. Name: (Individual, partnership, or corporation submitting this quote) Address: City, State, Zip:_ By: Signature Title Date: Enclose all of the following in the envelope: Home Phone Office Phone (1) This sheet, signed by Quoter (2) Description Sheet, with amount quoted per house (3) Quote security (30% of quote amount per house) *Security for each house must be attached to each Description Sheet J STAFF REPORT Consent 9D 129 AGENDA SECTION: AGENDA ITEM # REPORT # CITY COUNCIL MEETING JUNE 10, 2003 REPORT PREPARED BY: NAME, T/TLE COUNCIL PRESENTER: NAME, TITLE DEPARTMENT DIRECTOR REVIEW: REVIEWED BY CITY MANAGER: RANDY HUGHES, OPERATIONS COORDINATOR ITEM FOR COUNCIL CONSIDERATION: Consideration of the attached resolutions pertaining to the annual 77th Street maintenance district assessment rocess. I. RECOMMENDED ACTION: By Motion: Adopt the attached resolution proposing to assess commercial properties in the 77th Street assessment district for costs incurred to maintain the area for-2002 and adopt the attached resolution proposing a similar assessment process to be implemented for 2004 and setting a public hearing date for July 22, 2003 for both. II. BACKGROUND Since the 1988 construction of the short section of 77th Street around the Hampton Inn, the City has been performing special, high-quality maintenance along 77th Street. The special maintenance services include irrigation, weeding and mowing of the landscaping on both sides of the 77th Street wall. The maintenance functions, known as current services, are funded through the maintenance assessment on the 77th Street businesses. City staff has determined costs to be assessed for the maintenance of the 77th Street redevelopment area between I- 35W and Cedar Avenue. 061077th02assess III. BASIS OF RECOMMENDATION ~, A. POLICY • Section 825 of the City Code indicates "current services" mean one or more of the following: (a) snow, ice, or rubbish removal from sidewalks; (b) weed elimination from streets or private property; (c) removal or elimination of public health or safety hazards from private property, excluding and structure included under the provisions of Minnesota Statues, sections 463.15 to 463.26; (d) installation or repair of water service lines; (e) street sprinkling, sweeping, or other dust treatment of streets; (f) the trimming and care of trees and the removal of unsound trees from any street; (g) the treatment and removal of insect-infested or diseased trees on private property; (h) the repair of sidewalks and alleys; (i) the operation of a street lighting system; ~) the maintenance of landscaped areas, decorative parks and other public amenities on or adjacent to street right-of--way; and (k) snow removal and other maintenance of streets in commercial redevelopment areas. • Council ordered the work, and the work is done. • Resolution No. 7405, adopted in 1988, established a policy for assessing the costs. • Commercial property owners will be assessed on aper-square-foot basis. However, all single family and multi-family residential ~, properties, plus the two churches in the area, would be exempt from the special assessment levy. B. CRITICAL ISSUES • New developments on 77th Street take advantage of the extra amenities along 77th Street. Both commercial and residential properties benefit but residential owners do not help pay the cost of maintaining these amenities on the residential square footage of their properties. Council could consider changing that policy in this resolution for future developments. C. FINANCIAL • Estimated and actual costs for the 77th Street maintenance services from 1989 - 2002 are: Year Estimate Actual 1989 $7,254 $6,135.54 1990 $7,514 $7,762.52 1991 $7,780 $8,855.46 1992 $8,894 $7,031.70 1993 $9,200 $3,614.94 1994 $0 estimate in a 12/28/93 Council memorandum 1995 $18,000 $10,569.06 1996 $33,795 $36,850.31 1997 $58,973 $44,729.90 1998 $74,765 $54,629.54 1999 $80,000 $76,674.70 2000 $80,000 $70,594.20 2001 $85, 000 $78, 884.49 2002 $80,000 $75,490.39 2003 $80,000 D. LEGAL • No legal issues are apparent at this time. The City Attorney will be in ~ attendance at the Council meeting should a legal question arise. ' Section 825, Subd. 2 states that "the City Clerk, under the Council's direction, shall publish notice that the Council will meet to consider the undertaking of current services and levying of special assessments to pay costs thereof." ALTERNATIVE RECOMMENDATION(S) ~ • Council may make any changes to the assessment roll as deemed necessary after the public hearing. ATTACHMENTS ~ • Resolution declaring costs to be assessed and ordering preparation of the proposed assessment roll for 2002 77th Street Maintenance • Resolution proposing to specially assess for current services for 2004. ~ VI. PRINCIPAL PARTIES EXPECTED AT MEETING ~ • None. RESOLUTION NO. RESOLUTION DECLARING COST TO BE ASSESSED AND ORDERING -'~ PREPARATION OF PROPOSED ASSESSMENT FOR 77TH STREET MAINTENANCE FOR THE PERIOD JANUARY 1, 2002 THROUGH DECEMBER 31, 2002 WHEREAS, costs have been determined for the maintenance of the 77th Street Redevelopment Area the boundaries of which are approximately east of I-35W and west of Cedar Avenue in the City of Richfield and the expenses incurred or to be incurred for such maintenance amount to $75,490.39 for the period of January 1, 2002 through December 31, 2002. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Richfield, Minnesota: 1. The portion of the cost to be assessed against benefited property owners is declared to be $75,490.39. 2. The City Clerk shall forthwith calculate the proper amount to be specially assessed for such maintenance against every assessable lot, piece or parcel of land within the district affected, without regard to cash valuation, as provided by law, and shall file a copy of such proposed assessment in his office for public inspection. 3. The City Clerk shall, .upon the completion of such proposed assessment, notify the City Council thereof. 4. A hearing shall be held on the 22"d day of July, 2003, in the Council Chambers of .the City Hall at 6:30 p.m. or as soon thereafter as the matter can be reached on the. agenda to pass upon such proposed assessment and at such time and place all persons owning property affected by said maintenance assessment will be given an opportunity to be heard in reference to such assessment. 5. The City Clerk is hereby directed to cause a notice of the hearing on the proposed assessment to be published once in the official newspaper at least two weeks prior to the hearing, and he shall state in the notice the total cost of the maintenance. The City Clerk shall also cause mailed notice to be given to the owner of each parcel described in the assessment roll not less than two weeks prior to the hearing. Adopted by the City Council of the City of Richfield, Minnesota this 10th day of June, 2003. Martin J. Kirsch, Mayor ATTEST: Nancy Gibbs, City Clerk RESOLUTION NO. '~ RESOLUTION PROPOSING TO SPECIALLY ASSESS FOR THE COSTS OF CURRENT SERVICES PROVIDED WITHIN THE 77TH STREET PROJECT AREA FOR THE PERIOD JANUARY 1, 2004 THROUGH DECEMBER 31, 2004 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Richfield, Minnesota as follows: 1. There is hereby established a special assessment district, the boundaries of which are east of I-35W and west of Cedar Avenue, -for the purposes of assessing for current services provided by the City. 2. The following current services of the City are hereby proposed to be undertaken by the City in the District with the cost of such services to be specially assessed against benefited property within the District; • The trimming and care of trees and shrubs and the removal of any unsound trees from any street; • The repair of sidewalks; • The maintenance of landscaped areas and other public amenities on or adjacent to street rights-of-way; • Trash and litter removal. 3. The area proposed to be specially assessed for such current services consists of `-- each and every commercial lot and parcel of land within the District. It is proposed that the special assessments on the commercial property be made on the basis of area. 4. The City Clerk is hereby authorized and directed to publish notice of a hearing by this Council at which the Council will consider the undertaking. of such current services and the levying of special assessments to bear the costs thereof. Such notice shall be published in the official newspaper at least once, at least two weeks prior to the date of hearing. The City Clerk shall also give mailed notice of such hearing as required by law. Such hearing shall be held Tuesday, July 22, 2003, commencing at 6:30 p.m. or as soon thereafter as the matter can be reached on the agenda. 5. It is hereby proposed that the project consist of the aforementioned services for the period from January 1, 2004 through December 31, 2004. The estimated cost of providing all of the aforementioned services during that period is $83,700. Passed by the City Council of the City of Richfield, Minnesota this 10th day of June, 2003. ~ Martin J. Kirsch, Mayor ATTEST: Nancy Gibbs, City Clerk AGENDA SECTION: Consent AGENDA ITEM # 9C REPORT # 128 ~~ STAFF REPORT CITY COUNCIL MEETING JUNE 10, 2003 REPORT PREPARED BY: RANDY HUGHES, OPERATIONS COORDINATOR NAME, TITLE COUNCIL PRESENTER: NAME, TITLE DEPARTMENT DIRECTOR REVIEW: ~~ SIGNATURE' REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDERATION: Consideration of the attached resolutions pertaining to the annual Lyndale/HUB/Nicollet (LHN) maintenance assessment rocess RECOMMENDED ACTION: By Motion: Adopt the attached resolution declaring costs to be assessed and ordering preparation of the proposed assessment roll for 2002 Lyndale/HUB/Nicollet (LHN) Maintenance and adopt the attached resolution proposing a similar assessment process to be implemented for 2004 and schedule the public hearing for July 22, 2003 for both. II. BACKGROUND The Lyndale/HUB/Nicollet (LHN) maintenance assessment was established to recover extraordinary maintenance expenses in the LHN (66th Street/Lyndale/Nicollet) area in 1981. The extraordinary services include irrigation, weeding and mowing of landscaped areas. The LHN Redevelopment Area is approximately bounded by 64th Street, First Avenue, 67th Street and Emerson Avenue. City staff has determined actual costs of current services to be assessed for the 2002 maintenance of this area and estimated costs for the 2004 maintenance. 06101hn02assess III. BASIS OF RECOMMENDATION A. POLICY • Section 825 of the City Code indicates "current services" mean one or more of the following: (a) snow, ice, or rubbish removal from sidewalks; (b) weed elimination from streets or private property; (c) removal or elimination of public health or safety hazards from private properly, excluding and structure included under the provisions of Minnesota Statues, sections 463.15 to 463.26; (d) ..installation or repair of water service lines; (e) street sprinkling, sweeping, or other dust treatment of streets; (f) the trimming and care of trees and the removal of unsound trees from any street; (g) the treatment and removal of insect-infested or diseased trees on private property; (h) the repair of sidewalks and alleys; (i} the operation of a street lighting system; ~) the maintenance of landscaped areas, decorative parks and other public amenities on or adjacent to street right-of-way; and (k) snow removal and other maintenance of streets in commercial redevelopment areas. • Council ordered the work., and the work is done for 2002. • Council needs to order the work for 2004. B. CRITICAL ISSUES J • On or before September 1 of each year, the City shall list the total unpaid charges for current services against each separate lot or parcel to which they are attributable under section 825 of the City Code. C. FINANCIAL • Estimated and actual costs for the LHN maintenance services from 1989-2002 were/are: Year Estimated Actual 1 ggg $43,151.19 1990 $44,560 $43,539.10 1991 $44,153 $43,825.22 1992 $46,484 $47,005.26 1993 $45, 050 $34, 866.01 1994 $45,115 $44,635.70 1995 $45, 516 $36,105.50 1996 $46,080 $48,118.39 1997 $47,730 $31,208.46 1998 $49,165 $39,127.73 1999 $50,640 $47,470.80 2000 $45,000 $31,273.61 2001 $50,000 $52,556.06 2002 $50,000 $35,136.62 2003 $52,000 n Fluctuations in expenditures for maintenance of LHN are caused by a number of factors. Weather determines water usage and irrigation costs; street light knockdowns are never foreseeable and very expensive; and the need to paint streetlights and repair concrete varies from year to year. D. LEGAL ~~ Section 825, Subd. 2 states that "the City Clerk, under the Council's direction, shall publish notice that the Council will meet to consider the undertaking of current services and levying of special assessments to pay costs thereof." ALTERNATIVE RECOMMENDATION(S) • Council may make any changes to the assessment roll as deemed necessary after the public hearing. ATTACHMENTS • Resolution declaring costs to be assessed and ordering preparation of the proposed assessment roll for 2002 LHN Maintenance. • Resolution proposing to specially assess the costs of current services for 2004. ~ VI. PRINCIPAL PARTIES EXPECTED AT MEETING ~ • None. ~1 RESOLUTION NO. RESOLUTION DECLARING COST TO BE ASSESSED AND ORDERING PREPARATION OF PROPOSED ASSESSMENT FOR LYNDALE/HUB/NICOLLET (LHN) MAINTENANCE FOR THE PERIOD JANUARY 1, 2002 THROUGH DECEMBER 31, 2002 WHEREAS, costs have been determined for the maintenance of the Lyndale/Hub/Nicollet (LHN) Redevelopment Area which is approximately bounded by 64th Street, First Avenue, 67th Street and Emerson Avenue in the City of Richfield and the expenses incurred or to be incurred for such maintenance amount to $35,136.62 for the period of January 1, 2002 through December 31, 2002. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Richfield, Minnesota: 1. The portion of the cost to be assessed against benefited property owners is declared to be $35,136.62. 2. The City Clerk shall forthwith calculate the proper amount to be specially assessed for such maintenance against every assessable lot, piece or parcel of land within the district affected, without regard to cash valuation, as provided by law, and shall file a copy of such proposed assessment in his office for public inspection. 3. The City Clerk shall, upon the completion of such proposed assessment, notify the City Council thereof. 4. A hearing shall be held on the 22nd day of July, 2003, in the Council Chambers of the City Hall at 6:30 p.m. or as soon thereafter as the matter can be reached on the agenda to pass upon such proposed assessment and at such time and place all persons owning property affected by said maintenance assessment will be given an opportunity to be heard in reference to such assessment: 5. The City Clerk is hereby directed to cause a notice of the hearing on the proposed assessment to be published once in the official newspaper at least two weeks prior to the hearing, and he shall state in the notice the total cost of the maintenance. The City Clerk shall also cause mailed notice to be given to the owner of each parcel described in the assessment roll not less than two weeks prior to the hearing Adopted by the City Council of the City of Richfield, Minnesota this 10th day of June, 2003. Martin J. Kirsch, Mayor ATTEST: Nancy Gibbs, City Clerk RESOLUTION NO. ,~ RESOLUTION PROPOSING TO SPECIALLY ASSESS FOR THE COSTS OF CURRENT SERVICES PROVIDED WITHIN THE LYNDALE/HUB/NICOLLET (LHN) PROJECT AREA FOR THE PERIOD JANUARY 1, 2004 THROUGH DECEMBER 31, 2004. BE IT RESOLVED by the City Council of the City of Richfield, Minnesota as follows: 1. There is hereby-.established a special assessment district, .the boundaries of which are conterminous with the Lyndale/Hub/Nicollet (LHN) Redevelopment Project Area, for the purposes of assessing for current services provided by the City. 2. The following current services of the City are hereby proposed to be undertaken by the City in the district, with the costs of such services to be specially assessed against benefited property within the district: • Snow, ice or rubbish removal; • Weed elimination; • Elimination or removal of public health or safety hazards from private property, excluding any structure included .under the provisions of Minnesota Statutes Section 463.15 to 463.26; • Installation or repair of water service lines; • Street sprinkling or other dust treatment of streets; • Trimming and care of trees and the removal of unsound trees; • Repair of sidewalks, crosswalks, and other pedestrian walkways; • Operation of the street lighting system; • Maintenance of landscaped areas and other public amenities on or adjacent to street right-of-way; • Maintenance of Civic Plaza; • Snow removal and other maintenance of streets; • Painting and repair of wood furniture; • General maintenance, including repairs and replacement. 3. The area proposed to be specially assessed for such current services consists of every assessable lot and parcel of land within the district. It is proposed that special assessments on commercial property be made on the basis of the area with each square foot of assessable commercial property within the district being assessed an equal amount for maintenance of common are. Exempt from the special assessment levy shall be all single family, two-family, multiple family residential property within the LHN redevelopment district. Special maintenance of individual commercial properties shall be assessed directly for costs incurred in performing said maintenance to said property. ('~ 4. The City Clerk is authorized and directed to give public notice of a hearing by this Council at which the Council will consider the undertaking of such current services and the levying of special assessments to bear the costs thereof. The City Clerk shall also give mailed and published notice of such hearing as required by law. Such hearing shall be held on Tuesday, July 22, 2003, commencing at 6:30 p.m. or as soon ~ thereafter as the matter can be reached on the agenda. 5. It is hereby proposed that the project consist of the costs of the aforementioned services for the period of January 1, 2004 through December 31, 2004. The estimated cost of providing all the aforementioned current services during that period is $52,000. Adopted by the City Council of the City of Richfield, Minnesota this 10th day of June, 2003. Martin J. Kirsch, Mayor ATTEST: Nancy Gibbs, City Clerk AGENDA SECTION: Consent AGENDA ITEM # 9F REPORT # 131 ~' STAFF REPORT CITY COUNCIL MEETING JUNE 10, 2003 REPORT PREPARED BY: BRUCE SYLVESTER, PLANNING & ZONING ADMINISTRATOR NanfE, TITLE COUNCIL PRESENTER: DEPARTMENT DIRECTOR REVIEW: SIGNATURE f REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL. CONSIDERATION: Consideration of the attached resolution for an off-street parking permit at 220-224 East 78th Street (7745 2nd Avenue). I. RECOMMENDED ACTION: By motion: Approve the attached resolution granting an off-street parking permit at 220-224 East 78th Street (7745 Second. Avenue). III. BACKGROUND I The applicant, Mr. Bob Lurtsema (owner of Viking Update, currently located in the 7600 block of Lyndale Avenue) is requesting an off-street parking permit for construction of a new 7,256 sq. ft. office building at 220-224 East 78th Street. This site is 23,269 sq. ft., is zoned C-2 (General Commercial), and consists of the combination of two lots that previously contained single-family detached houses and a small parcel of land that was subdivided. from- the Church of the Assumption in May of this year. The parcel currently has an address on East 78th Street, but because this portion of 78th Street will eventually be taken for the widening of I-494, a new address on Second Avenue will be assigned by the Building Official to this parcel. The proposed. use as an office building is a permitted use in the C-2 District. An off-street parking permit is required for any new development such as this one. City parking standards require one parking stall for every 250 sq. ft. of office use, so the proposed 7,256 sq. ft. office building will require 29 parking stalls. 061003-OS Ppermit. doc 18 on-site parking spaces will be provided and additional 10 spaces will be provided through a shared parking agreement with the Church of the Assumption for a total of 28 parking spaces. The applicant has passed site plan review with staff, where the following matters were satisfactorily addressed in the parking lot site plan: The parking will be adequate relative to anticipated need. • Adequate traffic control devices and safety features have been incorporated into the design of the parking lot. • Loading and unloading areas and dumpster enclosures are adequate. • Stormwater management, lighting, and landscaping are adequate. • The impact on nearby streets and intersections will be negligible. • The parking lot meets parking lot standards, including matters such as drive aisle width, stall dimensions, setbacks, and the provision of handicapped spaces. • Landscaping meets City requirements and a landscape cash escrow will be required prior to the issuance of building permits. III. BASIS OF RECOMMENDATION • The proposed parking area will adequately serve the purpose for which it is proposed and will not have an adverse effect upon the public safety or general welfare. ~~ A. POLICY • Procedures for issuance of an off-street parking permit are outlined in City Code Section 800.17, which authorizes the City Council to issue a permit after determining that the requested parking area will not have an adverse effect upon the public safety or general welfare of the community. B. CRITICAL ISSUES • The proposed office building will be occupied by Viking Update, a business that is being displaced from 76th Street and Lyndale Avenue by the Lyndale Gateway West redevelopment project. The proposed office building will not be speculative office space, but will instead be for an identified tenant (Viking Update}. • The applicant has been informed that East 78th Street will eventually be taken for the expansion of I-494. For this reason, the address of this parcel will be changed to 7745 Second Avenue. The planned expansion of I-494 will not require Viking Update to be relocated in the future. • Because the project abuts MnDOT right-of-way for I-494, MnDOT has been notified of the proposed office building and has informed the applicant of their requirements for any construction on this site. • Relocating the Viking Update business will allow an existing Richfield business to remain in the community. C. FINANCIAL ~ • N/A D. LEGAL • 60-DAY RULE: The 60 day clock `started' when a complete application was received on June 2, 2003. A Decision must be given to the applicant by August 1, 2003 OR the Council must notify the applicant that it is extending the deadline (up to a maximum of 60 additional days or 120 days total) for issuing a decision. IV. ALTERNATIVE RECOMMENDATION~S~ • Deny the request for an off-street parking permit with a finding that the proposal would have an adverse impact on adjacent properties or the City as a whole. V. ATTACHMENTS • City Council Resolution • Site Plan VI. PRINCIPAL PARTIES EXPECTED AT MEETING • Mr. Steve Erban, Architect. RESOLUTION NO. RESOLUTION GRANTING AN OFF STREET PARKING PERMIT ~ AT 220-224 EAST 78TH STREET (7745 2ND AVENUE) - WHEREAS, an application has been filed with the City of Richfield which requests approval of an Off-Street Parking permit for the parcel of land located at 220-224 East 78th Street (7745 2nd Avenue), .legally described as: That part of Government Lot 1 described as follows: The South 174 feet of the West 91 feet of the East 216 feet of the Southwest'/4 of the Southeast'/4 of Section 34, Township 28 North, Range 24 West of the 4th Principal Meridian, Hennepin County, Minnesota; and The west 68.00 feet of the east 284.00 feet of the south 156.00 feet of that part of Government Lot 1 which lies within the Southwest Quarter of the Southeast Quarter, Section 34, Township 28, Range 24, except road, Hennepin County, Minnesota; together with that part of said Government Lot 1, described as follows: Beginning at the northwest corner of the west 68.00 feet of the east 284.00 feet of the south 156.00 feet of said Government Lot 1; thence South 00 degrees 15 minutes 01 seconds West along the west line of said west 68.00, a distance of 116.00 feet to the north right-of-way line of Interstate Highway No. 494; thence South 89 degrees 55 minutes 29 seconds West along said right-of--way line, a distance of 14.65 feet to the east line of Second Avenue South; thence North 00 degrees14 minutes 58 seconds East along said east line of Second Avenue South a distance of 134.00 feet; thence North 89 degrees 55 minutes 29 seconds East a distance of 82.65 feet to the west line of east 216 feet of said Government Lot 1; thence South 00 degrees 15 minutes 01 seconds West along said last described west line, a distance of 18.00 feet to the north line of said south 156.00 feet of Government Lot 1; thence South 89 degrees 55 minutes 29 seconds West along said north line a distance of 68.00 feet to the point of beginning; and WHEREAS, the requested off-street parking permit has been reviewed by staff and meets City requirements; and WHEREAS, the proposed parking area will adequately serve the purpose for which it is proposed and will not have an adverse effect upon the public safety or general welfare; and WHEREAS, the City has fully considered the request for approval for the off-street parking permit. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Richfield, Minnesota, as follows: 1. That an off-street parking permit for 220-224 East 78th Street (7745 Second Avenue) is hereby approved for a parking area as detailed in the site plan Al drawn by Steven Erban, Architect. Adopted by the City Council of the City of Richfield, Minnesota this 10th day of June, 2003. Martin J. Kirsch, Mayor ATTEST: Nancy Gibbs, City Clerk VI m .p r Z y m s b N Z Tm V r D N A a r m 11 e b ''~ tlAI r ~^ry !7I ~' fl s '° ~i v' ' 1I 3 .. ,I~~j~ .F i~ \ i~ ~• ~~~ _ E I~ 2NL ~Y~. ~. ~~~~ z I PEDESTRIAN del G9T L~ OF NID 4VE 5. I OVER 496 N--134ID0--E I _ ~ ~ ST LINE OF THE EAST ]B4 FEET OF GAVE LOT I ~ m~ li ~Y~I ~y ~ '~ ~ ~o ~ I ~ I ~~ G m ma .~ D_ r ~ '° , m ~ t:~ o s -¢~~ m ,0 ~ E~EiEi (~y~ iEP ~u ~N i ! ~~ D A "' E m ~ Z~ ~- m € n Om_ U D A7~ i °"' nti Qx L~ ~~fQ ~x gx m~ A _ ~ s~ D y ~ ~ ur ~~ -- --1 ° ~ - /~ ~ ~ ~~ - m m pm ~ u ~ u oX ~x ~ r~ ~w ®30p AD§ - ^~j~X !]]9cc ZiZ a a4Z w (1 ~ --~-- 500'19'01' W I pym "' e I I D m~ f p _ <~ ~^ g~ ~ I ~o f ~ -~ ~° 4 ~ ~-m. ._m.. I I 10'-0 1 6 ' ~ ~ 9a O~ YO•_m• - - - - -_ - m A D e~ ~D N~ r O b 0 CD ~m 3~ to Z N >I ~ D (>~ ~, L' ~ ` i < ~ ~~ z ~~" ~ ~ m ~C I D'~ F~ r ~~~m ~Im° ro ~ ~ ~ _ +In 3 ~ D ~: = I ~ Ir '~ ~~~ m I~ I I-i I1=! I! i I ~ _ ~ r Ili=11 I I=1 I q Ql ~ T~ I 11 11=ui ~ I m ~ :. ~ z I~ m D ~ m ~ r- ~ ~ m i ~ 3 Z N EO Z O~ zr Clrn D~~ ~3 m p1ZA3 mz >„ O.~ .I Oz3D~ ~~ D tiA =11 c~nAmn~~ W = a _~ e b Z . O --~I~I I I ~ ;: -~ D 6'-0" 9 23'-m'• 9 r ~ PARKING. PARKING 1'-III GRADE mD €, !^~ -o ~~m o<D € ~~P € ~~ ~ ~dl Op~yn iA R 7p~ D ~ ~ ~ up n ~ ~R~m' A ~o ~ Did} i~n 4_ Z ~ ~_ °o~ ~ ~,o -off ~ ~~ z~~ :n`0 ~ ~ ~ D~ ~~ ~~ ~$ am V/ I o nv ~ ~~ ~~ ~ ~ u° ~~ T ' ~1p~s y o ! ° D ~ ~ ~i~ O HF T R F . C - v °~ x~ U o~ § ~``~ A~$p9~ ~~~ g ~ m ~~ y Z A z Dmm 1` r ~yi~ ppN ppvv~~ 5i m rrAOO O E a p O..I Zg y ~mm 3~0 ® 4 U D ~m ~ ~_ ~~~ ,. ~~ ® ~VTr E ~~~ < D~ (~ F= a z5 ~ ~~ ~ ~~ ~ ~a ~ ~~ s ~ t' ~ ~ F5~-ie ~ E~ b3 ~ "'1 y~~yee~C~7~ y[7~n t=7~~ ~ A49~ ~ ~ e~~~~~ ~ ~ arty>~c~ ~~~~• ~.~~ ~ ~ ~ e ~~~`.' i ~ o-y ~ ~- a °i _n c~ ~ ~ ~ ~ ~ ~ ~~ ~_~ ~ ~ ~ ~ - - ~wm~ -ham ~~~~ ~~~ s3 ~®~ ~ ~ ©~ m ~o°= ~ ~ y D a! - ~r m D ., r ! ', r . _ - j y/' - .. € ~ ~ - rn Z O :~ m r m D _~ O z to A n r m m u 0 1 O 5/8» _O cqL a p~_ 1 \ -P v~ a C 'i D 5 3/4' m D rn r m D ~_ O z N n D m m b ~~_0. 6'-10- W _~ z v -. ® ~ O _ D ~ m cX D r- ~ ~ ~ ~ ~ m 0 fTl ..m ,'D b ~ O c m r m D O z N A a r m 0 00 ~ o yy Z 00 Z~ m 1. o Op ~ °x z~ -I ~~ ~ . ~ w r ~ b L m °' `"- p Vi ' o o: g ~ °X m fA ro ^~^ Y' +1 O b Z. W 0 g~ y I 9 ~~ O f0 D ,l q~ ~ A V ~ O W D ~gj~ o C A ~ ® ~. ~-Z. ----~- sa -_ ® ~, r m m C~ _C Z v 0 A m N ~~ y ~o w ~o //p~ O ~p+ 1pv 1 D m~ n o~ O ® ~ ~ ~ '~ r;, j _ ~: PI ~, ~ .. r, ~ a ~'1. . o ._ ;. I e i P. '_~ g ~ `v ~ ~, m G m m r m D ~_ O z Cn A D m w b z 1•_0• ~ 13_8" AGENDA SECTION AGENDA ITEM # REPORT # STAFF REPORT CITY COUNCIL MEETING JUNE 10, 2003 Consent 9E 130 REPORT PREPARED BY: GEORGE L. ATKINSON, ENGINEERING SUPERVISOR NAME, TITLE COUNCIL PRESENTER: DEPARTMENT DIRECTOR REVIEW: SIGNATURE REVIEWED BY CITY MANAGER: ~ / V -. ITEM FOR COUNCIL CONSIDERATION: Consideration of the attached. resolution between the City of Richfield and Hennepin County for County participation in grinding the street surface and striping of bike trails on 76th Street between Lyndale and Emerson Avenues. RECOMMENDED ACTION: By Motion: Adopt the attached resolution approving Agreement Number PW 20-19-03 between Hennepin County and the City of Richfield. which provides for $6,000 in County participation in Richfield's 76th. Street Diamond Grinding and. Trail Striping Project. III. BACKGROUND Richfield. City Council recently approved a transitory ordinance reallocating $14,342.61 from the Pleasant Avenue Bike Trail Segments project to the Micro- plane 76th Street project. The public hearing and second reading occurred on April 22, 2003. Staff is encumbering funds to create a bike trail along 76th Street between Emerson and Lyndale. As .part of this project, staff is also proposing to ~~ grind smooth the concrete pavement on this stretch of roadway. _i 76th Street has been designated as part of Hennepin County's Bicycle Trans- portation System Plan. The City has also designated this stretch of street as part of 0610-76StTrail its trail system. This stretch of 76th Street is quite old and most of the concrete ;~ panels have become offset at each panel joint resulting in a bumpy and an uncomfortable ride for motorist and bicyclists. Residents abutting the street also complain of an annoying "thump -thump" sound and vibration from the traffic. Staff wishes to use diamond grinding and striping to create a test section of the proposed new trail at a low cost. If the new trail is accepted by the neighbors the trails can be extended east of Lyndale Avenue and/or the City could consider reconstructing 76th Street with both bicycle and- motorized vehicle lanes. If the residents do not like the trail and Council decides to remove it, restriping is all that would be necessary. The diamond grinding will be done in all four of the existing lanes. The two outer lanes will become bike trails, while the inner two lanes will continue to serve motorized vehicles. Approval of the attached resolution will allow the execution of an agreement between the City and Hennepin County. The agreement will allow Hennepin County to participate in partial funding of this project through a $6,000 grant. III. BASIS OF RECOMMENDATION A. POLICY Richfield's Comprehensive Plan, in several places, requires creation and maintenance of bike and hike trails. Part 2.1,c, (6) directs that staff, "plan and construct acity-wide bike/hike trail system....". • Council has also continued to include alternative transit in its annual list of goals. B. CRITICAL ISSUES • The only issue appears to be whether the neighboring residents will accept the loss of two driving lanes and the addition of bike lanes. The Community Services Commission approved a citizen participation process that includes a neighborhood meeting with the "Answer Van" and an open house prior to a Commission meeting.. C. FINANCIAL • The entire project is estimated to cost about $40,000. • At its regularly scheduled meeting of April 22, 2003, the City Council conducted the public hearing and approved the second reading of a transitory ordinance allocating over $14,000 to this project. • With this .agreement Hennepin County agrees to contribute an additional $6,000 to the project. • The remainder, in an amount estimated. at $20,000, will be funded using Municipal State Aid (gas tax dollars) construction funds. D. LEGAL • There are no known legal issues at this time. -~ IV. ALTERNATIVE RECOMIVIENDATION(S~ _ Council could decline to authorize participation in this agreement, however that would require either additional funding from another source or termination of the project. V. ATTACHMENTS • Resolution • A copy of proposed agreement No. PW 20-19-03. VI. PRINCIPAL PARTIES EXPECTED AT MEETING • None known at this time. RESOLUTION NO. RESOLUTION AUTHORIZING THE EXECUTION OF AGREEMENT PW 20-19-03 BETWEEN HENNEPIN COUNTY AND THE CITY OF RICHFIELD ON BEHALF OF THE CITY WHEREAS, Richfield City staff wishes to diamond grind (micro-plane) West 76th Street between Emerson Avenue and Lyndale Avenue to smooth and quiet the street, then to restripe said Street to create two motorized vehicle lanes and two bicycle lanes; and WHEREAS, Hennepin County wishes to financially participate in the trail project in the amount of $6,000; and WHEREAS, Agreement PW 20-19-03 authorizes the County to pay the City $6,000 for the project and further authorizes City staff to accept the $6,000 to assist in financing the project. NOW, THEREFORE, BE IT RESOLVED that the Richfield City Council hereby approve Agreement No. PW 20-19-03 and authorize the Mayor and City Manager to execute said agreement on behalf of the City. Adopted by the Gity Council of the City of Richfield, Minnesota this 10th day of June, 2003. Martin J. Kirsch, Mayor ATTEST: Nancy Gibbs, City Clerk Agreement No. PW 20-19-03 County Project No. 0306 City of Richfield County of Hennepin AGREEMENT FOR COST PARTICIPATION IN ON-STREET BICYCLE FACILITY THIS AGREEMENT, Made and entered into this day of , 200_, by and between the County of Hennepin, a body politic and corporate under the laws of the State of Minnesota., hereinafter referred to as the "County", and the City of Richfield, a body politic and corporate under the laws of the State of Minnesota, hereinafter referred to as the "City". WITNESSETH: WHEREAS, the City has requested County participation in the costs of striping and micro- planing 76th Street between 77th Street and Lyndale Avenue for use as a on-road bicycle facility; and WHEREAS, 76th Street is designated as part of Hennepin County's Bicycle Transportation '~ ` System Plan dated March, 2000, and the above mentioned segment of 76th Street is also part of the Suburban Hennepin Regional Park District's (a.k.a. Three Rivers Regional Park District) First Tier Trails Plan; and WHEREAS, the. construction of said striping and micro-planing hereinbefore described, shall be identified and accomplished under City of Richfield Project No. 401-30-553 (Hennepin County Project No.0306) hereinafter referred to as the "Project"; and WHEREAS, the City or its agents have prepared plans and specifications for the construction of said Project; and WHEREAS, said striping and micro-planing of 76th Street for use as a on-road bicycle facility is eligible for participation under Hennepin County's bikeway cost participation policy; and WHEREAS, it is considered mutually desirable to stripe and micro-plane 76th Street for use as a on-road bicycle facility; and WHEREAS, the City or its agent has prepared an Engineer's Estimate of quantities and unit prices for the construction contract work in the amount of Forty One Thousand Dollars and No Cents ($41,000.00); and WHEREAS, the City has requested that the County approve the plans and specifications and that the County authorize the City to perform the work in accordance with said plans and specifications for said Project; and - 1 ~• ~~'~~.-.. Agreement No. PW 20-19-03 C.P. 0306 WHEREAS, it is contemplated that said work be carried out by the parties hereto under the provisions of Minnesota Statutes, Section 162.17, Subdivision 1 and Section 471.59. NOW THEREFORE, IT IS HEREBY AGREED: I The City or its agents shall prepare the necessary plans, specifications, and proposals; shall solicit quotes for the work and construction and enter into a contract with the successful bidder at the unit prices specified in the bid of such bidder. Said plans and specifications prepared by the City or its agents shall be designed according to County design guidelines and Mn/DOT's "Bicycle Transportation Planning and Design Guidelines" consistent with State Aid requirements. The contract shall include the plans and specifications prepared by the City or its agents and approved by the County. ~ Two (2) sets of approved plans shall be provided at no cost to the County prior to the start of any construction. II The City shall administer the contract and perform all required engineering, inspection and testing. The County Engineer or staff shall have the right, as the work progresses, to enter upon the job site to make any inspections deemed necessary, but will have no responsibility for the supervision of the work. III The County agrees that the City may make changes in the plans or in the character of said construction which are reasonably necessary to cause said construction to be in all things performed and completed in a satisfactory manner consistent with the plans and specifications approved by the County. It is fiuther agreed by the County that the City may enter into change orders or supplemental agreements with the City's contractor for the performance of any additional construction or construction occasioned by any necessary,. advantageous or desirable changes in plans, within the original scope of the Project. The County Engineer or designated representative shall have the opportunity to review any proposcd changes to the plans and specifications prior to the work being performed. Agreement No. PW 20-19-03 C.P. 0306 IV The County shall pay the City the lump sum amount of Six Thousand Dollars and No Cents ($6,000.00) as its total share of the costs for said Project. The City understands and agrees that the County's participation in said Project costs shall not exceed said amount. After awarding the construction contract to the successful bidder the City will invoice the County for one hundred (100) percent of the County share of the costs foi the Project. The County will within forty five (45) days of said invoice, deposit with the City funds totaling the amount of said invoice. V All records kept by the City and the County with respect to this Project shall be subject to examination by the representatives of each party hereto. VI ,-~ It is understood by the parties hereto that 76~' Street shall remain the property of the City. It is further understood and agreed that upon completion of the Project proposed herein, all improvements included in said Project shall become the property of the City and all maintenance, restoration, repair or replacement required thereafter shall be performed by the City at no expense to the County. The City agrees to defend, indemnify and hold harmless the County, its officials, officers, agents, volunteers, and employees from any liability, claims, causes of action, judgments, damages, losses, costs or expenses, including reasonable attorney's fees, resulting directly. or indirectly from any act or omission of the City, its subcontractors, anyone directly or indirectly employed by them, and/or anyone for whose acts and/or omissions they maybe liable related to the ownership, maintenance, existence, restoration, repair or replacement of the City owned improvements. The City's liability under this indemnification obligation shall be governed by the provisions of Minnesota Statutes, Chapter 466 or other applicable law. VII Each party agrees that it will be responsible for its own acts and the results thereof, to the extent authorized by the law, and shall not be responsible for the acts of the other party and the results thereof. The County's and the City's liability are governed by the provisions of Minnesota Statutes, Chapter 466. The County and the. City each warrant that they are able to comply with the aforementioned indemnity requirements through an insurance or self-insurance program. ._ - 3 -. V~,r ~ Agreement No. PW 20-19-03 C.P. 0306 VIII The City also agrees that any contract let by the City or its agents for the performance of the work on 76~' Street as provided herein shall include clauses that will: 1) Require the Contractor to defend, indemnify, and hold the County, its officials, officers, agents and employees harmless from any liability, causes of action, judgments, damages, losses, costs or expenses including, without limitation, reasonable attorneys' fees, arising out of or by reason of the acts and/or omissions of the said Contractor, its officers, employees, agents or subcontractors; 2) Require the Contractor to be an independent contractor for the purposes of completing the work provided for in this Agreement; and 3) Require the Contractor to provide and maintain insurance in accordance with the following: 1. Commercial General Liability on an occurrence basis with Contractual Liability and Explosion,. Collapse and Underground Property Damage (XCU) Liability coverages: Limits General Aggregate $1,000,000 Products--Completed Operations Aggregate $1,000,000 Personal and Advertising Injury $1,000,000 Each Occurrence -Combined Bodily Injury and Property Damage $1,000,000 2. Automobile Liability: Combined Single limit each occurrence coverage or the equivalent covering owned, non-owned, and hired automobiles: ~ $1,000,000 3. Workers' Compensation and Employer's Liability: A. Workers' Compensation Statutory If the Contractor is based outside the State of Minnesota, coverages must apply to Minnesota laws. B. Employer's Liability -Bodily injury by: Accident -Each Accident $100,000 Disease -Policy Limit $500,000 Disease -Each Employee $100,000 Hennepin County shall be named as an additional insured for the Commercial General Liabiiity coverage with respect to operations covered under this Agreement. An Umbrella Liability poli~;y over primary liability coverages is an acceptable method to provide ., .a ~ti'~ Agreement No. PW 20-19-03 C.P. 0306 the required insurance limits. The above subparagraphs establish minimum insurance requirements. It is the sole responsibility of the City's Contractor to determine the need for and to procure additional insurance which maybe needed in connection with said Project. All insurance policies shall be open to inspection by the County and copies of policies shall be submitted to the County upon written request. IX It is further agreed that any and all employees of the City and all other persons engaged by the City in the performance of any work or services required or provided for herein to be performed by the City shall not be considered employees of the County, and that any and all claims that may or might arise under the Worker's Compensation Act or the Minnesota Economic Security Law on behalf of said employees while so engaged and any and all claims made by any third parties as a consequence of any act or omission on the part of said employees while so engaged on any of the work or services provided to be rendered herein shall in no way be the obligation or responsibility of the County. ,-~ Also, any and all employees of the County and all other persons engaged by the County in the performance of any work or services required or provided for herein to be performed by the County shall not be considered employees of the City, and that any and all claims that may or might arise under the Worker's Compensation Act or the Minnesota Economic Security Law on behalf of said employees while so engaged and any and all claims made by any third parties as a consequence of any act or omission on the part of said employees while so engaged on any of the work or services provided to be rendered herein shall in no way be the obligation or responsibility of the City. X In order to coordinate the services of the City with the activities of the County so as to accomplish the purpose of this Agreement, the County Engineer or a designated representative shall manage this Agreement on behalf of the County and shall serve as liaison between the County and the City. In order to coordinate the services of the County with the activities of the City so as to accomplish the purpose of this Agreement, the City's Engineering Supervisor or a designated representative shall manage this Agreement on behalf of the City and shall serve as liaison between the City and the County. XI (~ It is understood and agreed that the entire Agreement between the parties is contained herein and that this Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter hereof. All items referred to in tl`~is Agreement are incorporated or attached and are •- ~~ L- Agreement No. PW 20-19-03 C.P. 0306 deemed to be part of this Agreement. Any alterations, variations, modifications or waivers of provisions of this Agreement shall only be valid when they have been reduced to writing as an amendment to this Agreement signed by the parties hereto. XII The provisions of Minnesota Statutes 181.59 and of any applicable local ordinance relating to civil rights and discrimination and the Affirmative Action Policy statement of Hennepin County shall be considered a part of this Agreement as though fully set forth herein. (THIS SPACE INTENTIONALLYLEFT BLANK) - 6 - .~,~,!L-- Agreement No. PW 20-19-03 C.P. 0306 IN TESTIMONY WHEREOF, The parties hereto have caused this Agreement to be executed by their respective duly authorized officers as of the day and year first above written. CITY OF RICHFIELD (Seal) By: Mayor Date: And: Manager Date: COUNTY OF HENNEPIN ATTEST: Bv: Deputy/Clerk of the County Board By: Chair of its County Board Date: APPROVED AS TO FORM: k- ~~M~ By A start Coucnty Attorney Date: ~ / /v-~ APPROVED AS TO EXECUTION: By: Assistant County Attorney Date: And: AssistantlDeputy/County Administrator Date: And: Assistant County Administrator, Public Works and County Engineer Date: RECOMMENDED FOR APPROVAL By: Director, Transportation Department Date: _ Date:_ - _ ~~ . -r; ~- _ - - ~ _ _.__ - u ~. AGENDA SECTION: COIISeIIt AGENDA ITEM # 9G REPORT # 132 J STAFF REPORT CITY COUNCIL MEETING JUNE 10, 2003 REPORT PREPARED BY: THOMAS FOLEY, TRANSPORTATION ENGINEER NAME, TITLE COUNCIL PRESENTER: DEPARTMENT DIRECTOR REVIEW: ~ ~~II CC ~/ SIGNATURE REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDERATION: Consideration of Stipulation of Final Settlement and .payment of business relocation claim to Inside Innovative Sports for expenses associated with vacating the racquet club building owned b Centu Court A artments as art of the Penn Avenue Brid a Pro'ect. I. RECOMMENDED ACTION: By Motion: Approve the Stipulation of Final Settlement and payment of business relocation claim for Inside Innovative Sports to vacate the racquet club building that was donated to the City by the owner of Century Court Apartments to build the Penn Avenue Bridge Project. II. BACKGROUND The Dominium Group owned a racquet club building as part of the Century Court Apartments. The City had informed Dominium Group that it intended to acquire easements from Century Court Apartments to build the Penn Avenue Bridge and widen 76th Street. As part of the negotiations, Dominium Group wanted the City to provide full access to the Century Court Apartments from Penn Avenue at the new signalized entrance to Best Buy. The City agreed to do this if Dominium donated the racquet club building. 0610 Penn Bridge-Relocation On August 28, 2001 the City's relocation consultant discovered that the racquet club --~ building was occupied by a private business, known as Inside Innovative Sports. The business trained young athletes in the racquet club building and leased the space from Dominium Group, the owner of Century Court Apartments. Inside Innovative Sports vacated the building quickly so that the City could maintain its schedule to build the Penn Avenue Bridge (which required removal of the building in October 2001). When Inside Innovative Sports submitted its business relocation claim, it was not able to provide all the documentation which is normally required to support a claim and complained that they would have been entitled to more money if they had received timely relocation advice. Ken Helvey of Conworth, Inc., the City's relocation consultant, and Bob Lindall of Kennedy and Graven, the City's legal advisor on right-of-way acquisition, are recommending that Council approve payment of a relocation claim of $31,243.59 by Inside Innovative Sports as reasonable under these unusual circumstances. A Stipulation of Final Settlement between the City and Inside Innovative Sports is attached that describes the events and actions taken by both parties to resolve this relocation claim. III. BASIS OF RECOMMENDATION A. POLICY ~_ ; • All occupants of property acquired by the City are entitled to receive relocation benefits under state and federal law. B. CRITICAL ISSUES • The City was not aware that the racquet club building was occupied by a tenant of Century Court Apartments at the time the City acquired the property. C. FINANCIAL • The funds to pay this relocation expense will come first from the Best Buy contribution to the Penn Avenue Bridge Project. Additional funds, if needed, will come from tax increment financing funds or municipal state aid (gas tax revenues.) D. LEGAL • Bob Lindall of Kennedy and Graven, the City's legal advisor, has reviewed and recommended the payment of this relocation claim. IV. ALTERNATIVE RECOMMENDATION(S~ • A payment in lieu of claim of $20,000 can be made without providing documentation. However, -the claimant will probably file a lawsuit claiming that they were not adequately informed of their rights under the federal Uniform Relocation Assistance and Real Property Acquisition and Act of 1970 and similar state law. V. ATTACHMENTS ~; • Letter dated May of 2003 from Bob Lindall of Kennedy and Graven recommending payment of the relocation claim of Inside Innovative Sports. • Stipulation of Final Settlement, Parcel 2 Inside Innovative Sports. VI. PRINCIPAL PARTIES EXPECTED AT MEETING • None anticipated. Ntay-26-03 11:56 From-Kennedy & Graven t61zi3f83tu i-dau r.uuziuua r-adt 470 i•iiisoury %etiice - ~ X00 Srur:: ~iz~ ~u ~r ~ 1V(innrx~C+lii MI3 5~4Q2 (612) 337-9300 releplione ,-~ ~ - (612) 337-9310 fyr C H A R T E R E D hrCp:I/WWwkenncdygcaven.com ROBERT J. LINDA,1-~. Attorney at Lsw Dirt:ct Diat (bI2) 337-9219 ycZ7ll Yra~cicy ;.:.'rti §jn'~~~t~s1 Certified by Mionasota Statc B®r AiSIt. May 2~, 2003 V.LA i+Pil:Jll'YLLLG $61-8974 A1Vll U.S. lvlAll. 1 om Foley 'T'ransportation Engineer City of Richfield 6700 Portland Avenue South Richfield, MN 65423 ~Ze: City of ~{icafieid v. iZ~" iireen, i.i.ir., ei a% Hennepin County 1'iistrict Lourt x-ile Ivo. Cv-2633 ~ parcel 2 -Claim by Inside innovative Sports, Inc. for !relocation ~acpenses _,~ from 7620 Penn A,venne South Offer of Settlement Dear Tom: Inside Tnuovative Sports, lric, ("Tenant''} was an occupant in the former tenxiis court building owned by Century Court Apaitrnents at 7620 Penn Avenue South ("Tennis Court Building"}. In March 2001, the City filed eminent domain proceedings to acquire right of way for rile widening of 76`~ Street and Penn Avenue South and to construct the new Penn Avenue Bridge over I-494. As origizially filed, the proceeding would have taken easements which would provide Century Court Apartments with right-in right-out access to Penn Avenue South and would have left the Tennis Court Building undisturbed ("Right in-K.igtit out Alternative' j. Dominium, Inc., tht: management agent for Century Court Apartments, approached the City and requested that the City revise the takings from Century Court so as to enable Century Court to enter the west leg of the new traffic sigial to be installed at the intersection of Penn Avenue and the west entrance to the Best ]3uy campus. This change required dcrnolition of the former Tennis Court h3ui1t~ng arsd the City couldn't afford to pay Dozniziiutn for the building. The entrance would have bPPn ar4er~ir~atg iPbaSe~ nn the 1zi~t Tn-Right Qut Alternative but would be much superior for both the City and Century Court if based on rile Fuli Access iviternarive. r~z. _323IUvI RC14~~7 May-26-D3 11:56 From-Kennedy & Graven +61Z337831U i-ea8 N.uu3~uua r-aei Tom coley ieiter May 2$, 2003 Yabe 2 Over the course of several months, the Cary and llonrinium negotiated the temis under wiiicii ine City would agree to such a change. L7ltimately, it was a~eed that >jomirvium would donate the former Tennis Court Building (i.e. waive compensation for it in the condemnation) and the City would pay for easements, demolirion and relocation expenses. The negotiations were not completed until September, 200 i . T tre City needed ail of its righi oz way by October 1, 2001, free of tenants, in order for construction of the bridge to begin (so it wvulci be completed by Th~lesgiving 2002, as promised to Southtown area merchants, etc.}. On August 28, 2001, City representatives became aware of the Tenant being an occupant of the Tennis Court Building. The Tenant left the building before the end of September, 200i, without receiving a Notice of Eligibility (for relocarion assistance and benefits) and without receiving a 90 Notice (that they must leave 90 days after the notice). These notices are normally given to tenants when it is lrnown that they will be displaced. Conworth met wide the Tenant and/or the Tenant's attorney in FebniarY 2002. The Tenant's attorney then requested that the City send the Tenant a Ne~tice of Eligit~ility and the City did so. The Tenant subsequently submitted a relocation claim for ~;71 7d3, SQ ~ «.-~.~ttra l CE'.St.S" incurred !;; reloear;o**__ T*? faci, thecP rnctc yi~rP IargPly itypc,L'hett_~al, ,~ - ifthe Tenant had moved to an actual new business location, Actually, the Tenant lead moved to the home offices} of the company owners. Conworth and 1 have been concerned about the claim because it was based upon costs the Tenant claimed it would have incuzred if they had relocated to a new business location when they didn't do so. Subsequently, the Tenant indicated it intended to sutnttit an alternative claim based upon a paymeni in lieu of actual costs, l:lnder this approach, the claimant qualifies fora 520,000 benei`rt without providing any documentation. We believe the Tenant would absolutely qualify for $20,000 by pursuing this approach (and would have in October, 2001 had it submitted such a claim at that time). The Tenant's claim for more titan $10,000 is based on the arwment That tine City had a duty to provide the Tenant with a Notice of Eligibility and a y0-day 1~iotice before the Tenant vacated the old Tennis Court Building, and to provide the Tenant with counsEling concerning how to document its costs and qualify and apply £or relocation benefits. Tltis didn't happen and the Tenant contends that if it had happened that it would have documented a substantially larger claim and perhaps ~:`oul~..n't have bone out of busM*:ess. If the City were not to settle the claim for tl~e $3I,243.59 amount, the Tenant leas indicated its intention to continue appealizig the issue as far as it can (i.e. to the il/Iinnesota Court of Appeals, or beyond). It is also possible that the Tenant could claim that other laws were violated. ru~a~~olcyl RC 135-447 MaY-28-03 11:56 Frum-Kennedy & Graven ~ Tom ~oiey i,etter May 2~, 2uu3 Page 3 +61Z33T8310 T-648 P.004/004 F-481 In our opinion, it is reasonable to believe that the Tenant would ultimately recover the additional $11,243.59 (or a larger amount) if it were to proceed with the claim and the City were not to settle at this tame, anti t122t it is rracnnahle fnr tite City to au~ree at this time t0 nay that amount. In addition, by settling the claim at this time, the City will be spared the need to incur legal, expert witness and other costs and disbursements in connection with further litigation. Furthermore, settlement will prevent the need to justii}r why the notices weren't given. inn two or three recent occasions, the Tenant's attomey has requested the opportunity to address the City Council about the matter. The settlement will prevent the need for dealinb with that request. The settlement is contingent upon: 1. Ciry Council approval; 2. Waiver of all claims by the i errant against the %iry; and 3. No communications by the Tenant or its attorney with the Council about the matter. I recommend the settlement as being fair and reasonable and in the best interests of the City. 1 am preparing a Stipulation of Settlement for execution by the parties. Please submit the proposed settlement to the Council for approval. When a check is issued, please send it to me for transmittal to the ?et?ant's lawyex when we have received an executed Stipulation of Settlement in forth. acc~p±able to yo1 and me, Please let me know if you have comments or questions. v e truly yours 1 ~y / ~l~ Robertj7. Lu~idall ~L:peb cc: K.en rieivey Corrine Thomson 1VL'~L~LV~Vrl RC 145-~t447 ~- STATE OF MINNESOTA COUNTY OF HENNEPIN DISTRICT COURT FOURTH JUDICIAL DISTRICT Case Type: Condemnation City of Richfield, a municipal corporation under Minnesota law, Petitioner, v. RK Green L.L.P., formerly a Minnesota limited liability partnership, dba Citgo Service Station; Roger H. Green; Richfield Bank & Trust Co., a Minnesota corporation; Richfield Housing Associates I Limited Partnership, a Minnesota limited partnership; Glaser Financial Group, Inc., a Minnesota corporation; Minnesota Housing Finance Agency; Northwest Racquet Swim & Health Clubs, Inc., aka Northwest Racquet Swim & Health Clubs, LLC, aka NWR, LLC, formerly a Minnesota corporation; The Sumitomo Trust & Banking Co., Ltd., aka Sumitomo Bank, Limited; The Bank of Tokyo ..Trust Company; Marvin Wolfenson and Harvey Ratner, dba Northwest Unit Investment Co., aka N.W. Un. Inv. Co.; Midwest Federal Savings and Loan Association; City of Richfield; County of Hennepin; all other parties unknown, together with unknown heirs or devisees and spouses, if any, Court File No. CD-2633 STIPULATION OF FINAL SETTLEMENT PARCEL 2 INSIDE INNOVATIVE SPORTS, INC. Respondents. RJL-232020v1 RC 145-447 THIS AGREEMENT is by and between the City of Richfield, a Minnesota municipal corporation ("City") and Inside Innovative Sports, Inc., a Minnesota corporation ("Tenant"). I. RECITALS 1.01. City acquired certain easements encumbering the property designated as Parcel 2 in the above captioned condemnation proceedings for the widening of 76~' Street and Penn Avenue and reconstruction of the Penn Avenue Bridge. 1.02. At the time this proceeding was commenced, Tenant occupied a structure which formerly was located at or near 7620 Penn Avenue South in the City of Richfield on Parcel 2 ("Tennis Court Building"). 1.03. The City represents that when it commenced this proceeding the easements which it sought to acquire herein with respect to Parcel 2 were to enable the City to construct the "Right In - Right Out Alternative" which would not have required removal of the Tennis Court Building or displacement of Tenant. As a result, the City did not give Tenant a Notice of Eligibility for Relocation Benefits pursuant to 49 Code of Federal Regulations § 24.203, because it was not then foreseen that Tenant would be obliged to vacate the Tennis Court Building for the Project. 1.04. Subsequently, the owner of Parcel 2 ("Owner") asked the City to revise the takings from Parcel 2 for the Project so that Century Court Apartments could be provided direct access to and through the traffic signal to be installed by the City to serve the intersection of Penn Avenue South and the west entrance of the new Best Buy, Inc. corporate headquarters then planned to be constructed immediately east of that intersection ("Full Access Alternative"). 1.05. Owner and City subsequently agreed that the takings from Parcel 2 should be amended to provide for the Full Access Alternative, the Owner donated the building to the City and R1L-232020v1 2 RC 145-447 City agreed to pay Owner an agreed amount for the easements required for the Full Access Alternative. City agreed to pay for demolition of the Tennis Court Building and to pay any relocation expenses attributable to occupants of the Tennis Court Building. 1.06. Tenant contends that, pursuant to 49 Code of Federal Regulations, § 24.001, et seq., it was entitled to receive: (a) a written Notice of Eligibility for relocation assistance and benefits; (b) a 90-Day Notice (i.e. giving Tenant at least 90 days' written notice of the need to vacate the Tennis Court Building prior to the need to vacate it) at least 90 days prior to Tenant's vacation of the Tennis Court Building; and (c) relocation counseling assistance before such vacation. 1.07. City and Tenant agree that Tenant did not receive the notices or counseling described in Section 1.06 of this Agreement before Tenant vacated the Tennis Court Building. 1.08. Tenant contends that had it received such counseling assistance prior to Tenant vacating the Tennis Court Building, Tenant would have been -able to qualify for a claim for relocation benefits of substantially more than $71,243.19. 1.09. Tenant did submit to City a claim for relocation assistance in the amount of $71,243.19, based upon actual costs which Tenant claimed it incurred due to its relocation from the Tennis Court Building or arguably would have incurred if it had received timely relocation counseling. In part, that application was based upon Tenant qualifying for increased benefits pursuant to a change in Minn. Stat § 117.51 which Tenant agrees had not yet become legally effective at the time Tenant vacated the Tennis Court Building. Notwithstanding that Tenant is~ not entitled to the benefit of the amendment to Minn. Stat § 117.51, Tenant claimed its application for reimbursement based upon actual costs justified payment to it of $31,243.19 incurred by Tenant due to its displacement from the Tennis Court Building. 1.10. Tenant and City agree that; if Tenant had been given timely relocation advisory services and had elected to do so, Tenant would. ha~~~ been enY_.itled to relocation benefits of $20,000 RJL-232020v1 3 RC145.447 as a fixed payment pursuant to 49 CFR § 24.306 in October 2001 due to Tenant's displacement from the Tennis Court Building and would not have been obliged to retain a lawyer to assist it in submitting its claim for relocation assistance in this matter. 1.11. Tenant and City agree that Tenant was not provided relocation notices or relocation advisory services due to Tenant's displacement from the Tennis Court Building until after Tenant retained a lawyer who contacted the City or the City's relocation consultant on behalf of the Tenant. 1.12. Tenant's business is no longer operating and Tenant claims that this is at least partially due to Tenant's displacement from the Tennis Court Building. 1.13. Tenant and City agree that Tenant was not served with notice of the opportunity to make a claim in the above captioned eminent domain proceedings with respect to Pazcel 2. City desires to extinguish any possible claim which Tenant may have been able to assert due to the taking (~ of Pazce12 in this proceeding. 1.14. Tenant has claimed that it may .have other claims against City and that if City does not agree to pay Tenant at least $31,243.19 as described herein, Tenant will exercise the rights to continue appealing its various claims until its rights aze finally determined. 1.15. Tenant and City have fully and finally • resolved Tenant's claims and desire to memorialize such resolution. II. AGREEMENT NOW, THEREFORE, Tenant and City hereby agree as follows: 2.01. The foregoing recitals are hereby incorporated into this Agreement. 2.02. City agrees to pay Tenant $31,243.19 in full satisfaction of any and all claims which Tenant may have against City in this proceeding for relocation benefits due to displacement of Tenant from Pazce12 in this proceeding and any other claims by Teaxar-±t. RJL-232020v1 ~ RC145-447 ~ 2.03. Tenant hereby waives any and all claims which it has or may have against City, its employees, officers and agents, in the above captioned proceeding, pursuant to 49 CFR § 24.1 et seq., or under any other law. This waiver shall take effect upon receipt by Tenant of the above By: payment. 2.04. This Agreement is contingent upon approval by the City Council of City. Dated: , 2003 INSIDE INNOVATIVE SPORTS, INC. Its President By: SCHNITKER & ASSOCIATES, P.A. Kirk A. Schnitker Jon W. Morphew 2300 Central Avenue N.E. Minneapolis, MN 55418 612-789-5151 CITY OF RICHFIELD By: Samantha Orduno, City Manager KENNEDY & GRAVEN, CHARTERED By: ATTORNEYS FOR RESPONDENT INSIDE INNOVATIVE SPORTS, INC. RJL-232020v1 RC145-447 Robert J. Lindall #63277 470 Pillsbury Center 200 South Sixth Street Minneapolis, MN 55402 612-337-9219 ATTORNEYS FOR CITY OF RICHFIELD 5 AGENDA SECTION: AGENDA ITEM # REPORT # STAFF REPORT CITY COUNCIL MEETING JUNE 10, 2003 Consent 9A 126 REPORT PREPARED BY: JIM OLSON, PROJECT ENGINEER NA,~; TITLE COUNCIL PRESENTER: DEPARTMENT DIRECTOR REVIEW: SIGNATURE REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDERATION: Consideration of first reading of amendment to Chapter VIII of the Richfield City Code for a new Right-of--Way Ordinance and setting the public hearing and second reading. for July 8, 2003. I. RECOMMENDED ACTION: By Motion: Approve the first reading of the attached Right-of-Way Ordinance and schedule a public hearing and second reading on July 8, 2003. ~ II. BACKGROUND ~ Staff proposes to enact a new updated Right-of--Way (ROW) Ordinance as recommended by the League of Minnesota Cities (LMC) and Richfield's City Attorney. Richfield has had a ROW Ordinance in effect for many years; however, staff now finds it beneficial to enact a new ROW Ordinance. The LMC has developed a model ROW Ordinance to promote consistency between City ordinances and to ensure that it is consistent with the Minnesota Public Utilities Commission's rules of ROW management. The attached ordinance is based on the LMC model and has been drafted with the help of James Strommen, an attorney with Kennedy and Graven. 0610ROWOrdinance1 stRead The ordinance has been reviewed by City staff and representatives of Xcel Energy, Centerpoint Minnegasco, Quest Communication and Time Warner Cable. The Community Services Commission has also reviewed the attached ordinance. They have recommended approval of the ordinance with one comment -- see Critical Issues. The primary differences between this proposed ordinance and the existing ROW Ordinance are: • All persons or companies that own facilities that occupy the ROW or excavate within the ROW must register with the City and provide certain necessary information such as name, address, a-mail address, telephone and fax numbers, and certification of insurance or self-insurance. • All ROW users must, at the beginning of the year, provide a plan of construction projects anticipated within the next year. • In addition to the already required permit to excavate within the public ROW (street cut permit), a new permit will be created for "Occupation of the Right-of- Way". This permit would allow for obstructions such as dumpsters to be temporarily placed within the street. • The proposed ordinance deals with such issues as: permit extensions; delays; non-performance; restoration; emergencies; and, other conditions. III. BASIS OF RECOMMENDATION ~~. A. POLICY • The City is responsible for managing its ROW, which includes the placement and maintenance of facilities within the ROW and the appropriate use of the ROW. This ordinance will impose reasonable regulations to handle these concerns. B. CRITICAL ISSUES • After review by the Community Services Commission, there was discussion on the obstruction permit which could allow the placement of dumpsters on the street for a temporary period. Staff would like to discourage this practice but the commission thought there would be circumstances where it would be necessary to place dumpsters on the street. If dumpsters are allowed on the street there was also concern about liability and insurance issues. The ordinance does have insurance requirements. Members of the commission thought the dumpster issue could be separated ouf to specifically address homeowners. City attorneys state that this ordinance is not meant to specifically address placement of dumpsters on the street. Staff recommends leaving the ordinance as written. Staff believes the proposed ordinance as written will allow the placement of dumpsters on the street under certain circumstances through the use of the obstruction permit. provided within the ordinance. Staff will ensure the necessary insurance requirements are met and that the City be indemnified from the placement of dumpsters on the ROW as it does with the existing Boulevard Feature ~ Permit. Staff will then evaluate whether there is enough demand for the obstruction permit to where the City should amend its ordinance to -~ be specific in dealing with the placement of dumpsters on the street. C. FINANCIAL • The City will develop a fee schedule for the Excavation Permit Fee and the Obstruction Permit Fee included in this ordinance. The amount will be similar to existing permit fees and will be sufficient to recover the City management costs and any degradation costs to City streets. D. LEGAL • Attorney James Strommen of Kennedy and Graven has been a part of the staff team that drafted this ordinance. • There are no legal issues known at this time that would affect passage and implementation of this ordinance. IV. ALTERNATIVE RECOMMENDATION(S~ • Council could. decline to approve this ordinance or recommend amendments; however, staff and the City Attorney believe it is an appropriate ordinance that follows the LMC model. V. ATTACHMENTS • Proposed Right-of--Way Ordinance VI. PRINCIPAL PARTIES ExPECTED AT MEETING • None anticipated ORDINANCE NO. , AN ORDINANCE RELATING TO THE ADMINISTRATION AND REGULATION OF PUBLIC RIGHTS-OF-WAY IN THE PUBLIC INTEREST, AND TO PROVIDE FOR THE ISSUANCE AND REGULATION OF RIGHT-OF-WAY PERMITS; ADDING SECTION 802 TO THE RICHFIELD CITY CODE THE CITY COUNCIL OF THE CITY OF RICHFIELD, MINNESOTA ORDAINS: Section 1. The Richfield City Code is amended to add a new Section 802 to read as follows: Section 802 -RIGHT-OF-WAY MANAGEMENT 802.01 Findings, Purpose, and Intent. To provide for the health, safety and welfare of its citizens, and to ensure the integrity of its streets and the appropriate use of the rights-of--way, the city strives to keep its rights-of--way in a state of good repair and free from unnecessary encumbrances. Accordingly, the city enacts this new Section of this code relating to right-of--way permits and ,_ ~ administration. This Section imposes reasonable regulation on the placement and maintenance _. % of facilities and equipment currently within the city's rights-of--way or to be placed therein at some future time. It is intended to complement the regulatory roles of state and federal agencies. Under this Section, persons excavating and obstructing the rights-of--way will bear financial responsibility for their work through the recovery of out-of-pocket and projected costs from persons using the public rights-of--way. This Section shall be interpreted consistently with 1997 Session Laws, Chapter 123, substantially codified in Minnesota Statutes Sections 237.16, 237.162, 237.163, 237.79, 237.81, and 238.086 (the "Act") and the other laws governing applicable rights of the city and users of the right-of- way. This Section shall also be interpreted consistent with Minnesota Rules 7819.0050 - 7819.9950 where possible. To the extent that any provision of this Section cannot be interpreted consistently with the Minnesota Rules, the .interpretation most consistent with the Act and other applicable statutory and case law is intended. 802.03 Election to Manage the Public Rights-of--Way Pursuant to the authority granted to the city under state and federal statutory, administrative and common law, the city elects pursuant Minnesota Statutes, section 237.163 subdivision 2(b), to manage rights-of--way within its jurisdiction. 802.05 Definitions. The .following definitions apply in this Section of this code. References to "subdivisions" are unless otherwise specified references to subdivisions in this Section. JMS-222029v5 RC 145-326 --~ Subd. 1. "Abandoned Facility" means a facility no longer in service or physically disconnected from a portion of the operating facility, or from any other facility, that is in use or still carries service. A facility is not abandoned unless declared so by the right-of--way user. Subd. 2. "Applicant" means any person requesting permission to excavate or obstruct aright-of--way. Subd. 3. "City" means the city of Richfield, Minnesota. For purposes of Section 802.57, city means its elected officials, officers, employees and agents. Subd. 4. "Commission" means the Minnesota Public Utilities Commission. Subd. 5. "Congested Right-of--Way" means a crowded condition in the subsurface of the public right-of--way that occurs when the maximum lateral spacing between existing underground facilities does not allow for construction of new underground facilities without using. hand digging to expose the existing lateral facilities in conformance with Minnesota Statutes, section 216D.04. subdivision 3, over a continuous length in excess of 500 feet. Subd. 6. "Construction Performance Bond" means any of the following forms of security provided at permittee's option: A. Individual project bond, including a "license and permit" bond; B. Cash deposit; C. Security of a form listed or approved under Minnesota Statutes, section. 15.73, subdivision; D. Letter of Credit, in a form acceptable to the city; E. Self-insurance, in a form acceptable to the city; F. A blanket bond for projects within the city, or other form of construction bond, for a time specified and in a form acceptable to the city. Subd. 7. "Degradation" means a decrease in the useful life of the right-of--way caused by excavation in or disturbance of the right-of--way, resulting in the need to reconstruct such right-of--way earlier than would be required if the excavation or disturbance did not occur. Subd. 8. "Degradation Cost" subject to Minnesota Rules 7819.1100 means the cost to achieve a level of restoration as determined by the. city at the time the permit is issued, not to exceed the maximum restoration shown in plates 1 to 13, set forth in Minnesota Rules- parts 7819.9900 to 7819.9950. Subd. 9. "Degradation Fee" means the estimated fee established at the time. of permitting by the city to recover costs associated with the decrease in the useful life of the right- of-way caused by the excavation, and which equals the degradation cost. Subd. 10. "Department" means the department of public works of the city. JMS-222029v6 RC 145-326 2 Subd. 11. "Department Inspector" means any person authorized by the city to carry out inspections related to the provisions of this Section. Subd. 12. "Director" means the Director of the department of public works of the city, or her or his designee. Subd. 13. "Delay Penalty" is the penalty imposed as a result of unreasonable delays in right-of--way excavation, obstruction, patching, or restoration as established by permit. Subd. 14. "Emergency" means a condition that (1) poses a danger to life or health, or of a significant loss of property; or (2) requires immediate repair or replacement of facilities in order to restore service to a customer. Subd. 15. "Equipment" means any tangible asset used to install, repair, or maintain facilities in any right-of--way. Subd. 16. "Excavate" means to dig into or in any way remove or physically disturb or penetrate any part of aright-of--way. Subd. 17. "Excavation permit" means the permit which, pursuant to this Section, must be obtained .before a person may excavate in aright-of--way. An Excavation permit allows the holder to excavate that part of the right-of--way described in such permit. Subd. 18. "Excavation permit fee" means money paid to the city by an applicant to cover the costs as provided in Section 802.23. Subd. 19. "Facility or Facilities" means tangible asset in the public right-of--way required to provide utility service. The term does not. include Facilities to the extent the location and relocation of such Facilities are preempted by Minnesota Statutes, section 161.45, governing utility facility placement in state trunk highways. Subd. 20. "Five-year project plan" shows projects adopted by the city for construction within the next five years. Subd. 21. "High Density Corridor" means a designated portion of the public right- of-way within which telecommunications right-of--way users having multiple and competing facilities may be required to ,build and install facilities in a common conduit system or other common structure. Subd. 22. "Hole" means an excavation in the right-of--way, with the excavation having a length less than the width of the pavement or adjacent pavement. Subd. 23. "Local Representative" means a local person or persons, or designee of such person or persons, authorized by a registrant to accept service and to make decisions for that registrant regarding all matters within the scope of this Section. JMS-222029v6 RC 145-326 3 '~ Subd. 24. "Management Costs" means the actual costs the city incurs in managing - its rights-of--Way, including such costs, if incurred, as those associated with registering applicants; issuing, processing, and verifying right-of--way permit applications; inspecting job sites and restoration projects; maintaining, supporting, protecting, or moving user facilities during right-of--way work; determining the adequacy of right-of--way restoration; restoring work inadequately performed after providing notice and the opportunity to correct the work; and revoking right-of--way permits. Management costs do not include payment by a telecommunications right-of--way User for the use of the right-of--way, the fees and cost of litigation relating to the interpretation of Minnesota Session Laws 1997, chapter 123; Minnesota Statutes, sections 237.162 or 237.163 or any ordinance enacted under those sections, or the city fees and costs related to appeals taken pursuant to Section 802.61. Subd. 25. "Obstruct" means to place any tangible object in aright-of--way so as to hinder free and open passage over that or any part of the right-of--way. Subd. 26. "Obstruction Permit" means the permit which, pursuant to this Section, must be obtained before a person may obstruct aright-of--way, allowing the holder to hinder free and open passage over the specified portion of that right-of--way, for the duration specified therein, including a blanket permit for a period of time and for types of work specified by the Director, if deemed appropriate in his discretion. Subd. 27. "Obstruction Permit Fee" means money paid to the city by a permittee to cover the costs as provided in Section 802.23. Subd. 28. "Patch or Patching" means a method of pavement replacement that is temporary in nature. A patch consists of (1) the compaction of the subbase and aggregate base, and (2) the replacement, in kind, of the existing pavement for a minimum of two feet beyond the edges of the excavation in all directions. A patch is considered full restoration only when the pavement is included in the city's five year project plan. Subd. 29. "Pavement" means any type of improved surface that is within the public right-of--way and that is paved or otherwise constructed with paver blocks, bituminous, concrete, aggregate, or gravel. Subd. 30. "Permit" has the meaning given "right-of--way permit" in Minnesota Statutes, section 237.162. Subd. 31. "Permittee" means any person to whom a permit to excavate or obstruct a right-of--way has been granted by the city under this Section. Subd. 32. "Person" means an individual or entity subject to the laws and rules of this state, however organized, whether public or private, whether domestic or foreign, whether for profit or nonprofit, and whether natural, corporate, or political. Subd. 33. "Public right-of--way" has the meaning given it in Minnesota Statutes, section 237.162, subdivision 3. JMS-222029v6 RC 145-326 4 Subd. 34. "Registrant" means any person who (1) has or seeks to have its equipment or facilities located in any right-of--way, or (2) in any way occupies or uses, or seeks to occupy or use, the right-of--way or place its facilities or equipment in the right-of--way Subd. 35. "Restore or Restoration" means the process by which an excavated right- of-way and surrounding area, including pavement and foundation, is returned to the same condition and life expectancy that existed before excavation. Subd. 36. "Right-of--Way Permit" ..means either the excavation permit or the obstruction permit, or both, depending on the context, required by this Section. Subd. 37. "Right-of--Way User" means (1) a telecommunications right-of--way user as defined by Minnesota Statutes, section 237.162, subdivision 4; or (2) a person owning or controlling a facility in the right-of--way that is used or intended to be used for providing utility service, and who has a right under law, franchise, or ordinance to use the public right-of--way. Subd. 38. "Service or Utility Service" means and includes (1) services provided by a public utility as defined in Minnesota Statutes 216B.02, subdivisions 4 and 6; (2) services of a telecommunications right-of--way user, including transporting of voice or data information; (3) services of a cable communications system as defined in Minnesota Statutes, chapter. 238.02, subdivision 3; (4) natural gas or electric energy or telecommunications services provided by a local government unit; (5) services provided by a cooperative electric association organized under Minnesota Statutes, chapter 308A; and (6) water, sewer, steam, cooling or heating services. Subd. 39. "Supplementary Application" means an application made to excavate or obstruct more of the right-of--way than allowed in, or to extend, a permit that had already been issued. Subd. 40. "Temporary Surface" means the compaction of subbase and aggregate base and replacement, in kind, of the existing pavement only to the edges of the excavation. It is temporary in nature except when the replacement is of pavement included in the city's two-year plan, in which case it is considered full restoration. Subd. 41. "Trench" means an excavation in the right-of--way, with the excavation having a length equal to or greater than the width of the pavement or adjacent pavement. Subd. 42. "Telecommunication right-of-way User" means a person owning or controlling a facility in the right-of--way, or seeking to own or control a Facility in the right-of- way, that is used or is intended to be used for transporting telecommunication or other voice or data information.. For purposes of this Section, a cable communication system defined and regulated under Minn. Stat. Chap. 238, and telecommunication activities related to providing natural gas or electric energy services whether provided by a public utility as defined in Minnesota Statutes, section. 216B.02, a municipality, a municipal gas or power agency organized under Minnesota Statutes, chapters. 453 and 453A, or a cooperative electric JMS-222029v6 RC 145-326 5 association organized under Minnesota Statutes, chapter 308A, are not telecommunications right- of-way users for purposes of this Section. Subd. 43. "Two Year Project Plan" shows projects adopted by the city for construction within the next two years. 802.07 Administration. The Director is the principal city official responsible for the administration of the rights-of--way, right-of--way permits, and the ordinances related thereto. The Director may delegate any or all of the duties hereunder. 802.09 Utility Coordination Committee. The city may create an advisory utility coordination committee. Participation on the committee is voluntary. It will be composed of any registrants that wish to assist the city in obtaining information and by making recommendations regarding use of the right-of--way, and to improve the process of performing construction work therein. The city may determine the size of such committee and shall appoint members from a list of registrants that have expressed a desire to assist the city. 802.11 Registration and Right-of--Way Occupancy. Subd. 1. Registration. Each person who occupies, uses, or seeks to occupy or use, the right-of--way or place any equipment or facilities in or on the right-of--way, including persons with installation and maintenance responsibilities by lease, sublease or assignment, must register with the city. Registration will consist of providing application information and paying a registration fee. Subd. 2. Registration Prior to Work. No person may construct, install, repair, remove, relocate, or perform any other work on, or use any facilities or any part thereof in any right-of--way without first being registered with the city. Subd. 3. Exceptions.. Nothing in this Section shall be construed to repeal or amend the provisions of a city ordinance establishing the rights of and limitations placed on persons to plant or maintain boulevard plantings or gardens in the area of the right-of--way between their property and the street curb. Persons shall not be deemed to use or occupy the right-of--way, and shall not be required to obtain any permits or satisfy any other requirements under this Section for the following: A. Planting or maintaining boulevard plantings or gardens (City Code 811.07); B. Other surface landscaping works (City Code 811.07); JMS-222029v6 RC 145-326 6 C. Construction and maintenance of driveways, sidewalks, curb and gutter, or parking lots, except repairs or restoration necessitated by utility cuts or other work (City Code 800.11); D. Construction or maintenance of street furnishings, bus stop benches, shelters, or posts and pillars (City Code 805.07); E. Snow removal activities (City Code 930.17); F. Construction and maintenance of irrigation systems provided that the system does not connect directly to water mains in the right-of--way (City Code 811.07). Subd. 4. Gopher One Call Nothing herein relieves a person from complying with the provisions of the Minnesota Statutes, chapter 216D, Gopher One Call Law. 802.13. Registration Information. Subd. 1 Information Required. The information provided to the city at the time of registration shall include, but not be limited to: A. Each registrant's name, Gopher One-Call facility owner code number or other One-Call identifier, address and e-mail address, and telephone and facsimile numbers. B. The name, address and e-mail address, if .applicable, and telephone and facsimile numbers of a local representative. The local representative or designee shall be accessible for consultation at all times. Current information regarding how to contact the local representative in an emergency shall be provided at the time of registration. C. A certificate of insurance or self-insurance: 1. Verifying that an insurance policy has been issued to the registrant by an insurance company authorized to do business in the State of Minnesota, or a form of self insurance acceptable to the city; 2. Verifying that the registrant is insured against claims for personal injury, including death, as well as claims for property damage arising out of the (i) use and occupancy of the right-of--way by the registrant, its officers, agents, employees and permittees, and (ii) placement and use of facilities and equipment in the right-of--way by the registrant, its officers, agents, employees and permittees, including, but not limited to, protection against liability arising from completed operations, damage of underground facilities and n collapse of property; JMS-222029v6 RC 145-326 7 3. Either naming the city as an additional insured as to whom the coverages required herein are in force and applicable and for whom defense will be provided as to all such coverages or otherwise providing evidence satisfactory to the Director that the city is fully covered and will be defended through registrant's insurance for all actions included in Minnesota Rule part 7819.1250; 4. Requiring that the city be notified thirty (30) days in advance of .cancellation of the policy or material modification of a coverage term; 5. Indicating comprehensive liability coverage, automobile liability coverage, workers compensation and umbrella coverage established by the city in amounts sufficient to protect the city and the public and to carry out the purposes and policies of this Section. 4. The city may require a copy of the actual insurance policies if necessary to ensure the Director that the policy provides adequate third party claim coverage and city indemnity and defense. coverage for .all actions included in the indemnity required by Minnesota Rule part 7819.1250. 5. Such evidence as the Director may require that the person is authorized to do business in Minnesota. Subd. 2. Notice of Changes. The registrant shall keep all of the information listed above current at all times by providing to the city information as to changes within fifteen. (15) days following the date on which the registrant has knowledge of any change. 802.15 Reporting Obligations. Subd. 1. Operations. Each registrant shall, at the time of registration and by December 1 of each year, file a construction and major maintenance plan for underground facilities with the city. Such plan shall be submitted using a format designated by the city and shall contain the information determined by the city to be necessary to facilitate the coordination and reduction in the frequency of .excavations and obstructions of rights-of--way. If by December 1 the registrant has not developed its construction and maintenance information for the coming year, the registrant shall file such information with the city thereafter as soon as it is developed. The plan shall include, but not be limited to, the following information: JMS-222029v6 RC 145-326 8 A. The locations and the estimated beginning and ending dates of all projects to be commenced during the next calendar year (in this section, a "next- year project"); and B. To the extent known, the tentative locations and estimated beginning and ending dates for all projects contemplated for the five years following the next calendar year (in this section, a "five-year project"). The term "project" in this section shall include both next-year projects and five- year projects. By January 1 of each year and subject to the Minnesota Data Practices Act the city will have available for inspection in the city's office a composite list of all projects of which the city has been informed of the annual plans. All registrants are responsible for keeping themselves informed of the current status of this list. Thereafter, by March 1, each registrant may change any project in its list of next- year projects, and must notify the city and all other registrants of all such changes in said list. Notwithstanding the foregoing, a registrant may at any time join in a Next-year project of another registrant listed by the other registrant. Subd. 2. Additional Next-Year Projects. Notwithstanding the foregoing, the city will not deny an application for aright-of--way permit for failure to include a project in a plan submitted to the city if the registrant has used commercially reasonable efforts to anticipate and plan for the project. 802.17 Permit Requirement. Subd. 1. Permit Required. Except as otherwise provided in this code, no person may obstruct or excavate any right-of--way without first having obtained the appropriate right-of--way. permit from the city to do so, A. Excavation Permit. An excavation permit is required by a registrant to excavate that part of the right-of--way described in such permit and to hinder free and open passage over the specified portion of the right-of--way by placing facilities described therein, to the extent and for the duration specified therein. B. Obstruction Permit. An obstruction permit is required by a registrant to hinder free and open passage over the specified portion of the right-of--way by placing equipment described therein on the right-of--way, to the extent and for the duration specified. therein. An obstruction permit is not required if a person already possesses a valid excavation permit for the same project. C. Permits for .installation, repair or otherwise work on above-ground facilities within the meaning of Minn. Stat. § 237.163, Subd. 6(b)(4) will be obstruction permits, notwithstanding the need for excavation, provided JMS-222029v6 RC 145-326 9 -~ the excavation is augered or hand dug for the purpose of placing a pole type structure. Subd. 2. Permit Extensions. No person may excavate or obstruct the right-of--way beyond the date or dates specified in the permit unless (i) such person makes a supplementary application for another right-of--way permit before the expiration of the initial permit, and (ii) a new permit or permit extension is granted. Subd. 3. Delay Penalty. In accordance with Minnesota Rule 7819.1000 subp. 3, the city shall establish and impose a .delay penalty for unreasonable delays in right-of--way excavation, obstruction, patching, or restoration. The delay penalty shall be established from time to time by city council resolution. A delay penalty will not be imposed for delays due to force majeure, including inclement weather, civil strife, acts of God, or other circumstances beyond the control of the applicant. Subd. 4. Permit Display. Permits issued under this Section shall be conspicuously displayed or otherwise available at all times at the indicated work site and shall be available for inspection by the city. Subd. 5. .Routine Obstruction and Excavation. The Director may approve a permit plan which, among other conditions, allows for routine excavations and ~~ obstructions without separate notice and separate compensation for such projects. Projects that do not involve excavation of paved surface and that last less than eight hours in duration maybe included in such a plan. 802.19 Permit Applications. Subd. 1. Content of Permit Application for a permit is made to the city. Right- of-way permit applications shall contain, and will be considered complete only upon compliance with the requirements of the following provisions: A. Registration with the city pursuant to this- Section; B. Submission of a completed permit application form, including all required attachments, and scaled drawings showing the location and area of the proposed project and the location of all known existing and proposed facilities owned or operated by the applicant. C. Payment of money due the city for: 1. permit fees, estimated restoration costs and other management costs; 2. prior obstructions or excavations; JMS-222029v6 RC 145-326 10 3. any undisputed loss, damage, or expense suffered by the city because of applicant's prior excavations or obstructions of the rights-of--way or any emergency actions taken by the city; D. Payment of disputed amounts due the city by posting security or depositing in an escrow account an amount equal to at least 100% of the amount owing. Posting an additional or larger construction performance bond for additional facilities when applicant requests an excavation permit to install additional facilities and the city deems the existing construction performance bond inadequate under applicable standards. 802.21 Issuance of Permit; Conditions. Subd. 1. Permit Issuance. If the Applicant has satisfied the requirements of this Section, the city shall issue a permit within five (5) business days of receiving a completed application. Subd. 2. Conditions. The city may impose reasonable conditions upon the issuance of the permit and the performance of the applicant thereunder to protect the health, safety and welfare or when necessary to protect the right-of--way and its current use. Subd. 3. Screening. The Permittee shall screen all above-ground facilities as required by the Director. Screening methods shall include the use of shrubs, trees and/or landscape rock or installation using step or camouflaged forms of the facility. 802.23 Permit Fees. Subd. 1. Fee Schedule and Fee Allocation. The city's permit fee schedule shall be available to the public and established in advance where reasonably possible. The permit fees shall be designed to recover the city's actual costs incurred in managing the right-of--way and shall be based on an allocation among all users of the right-of--way, including the city. Subd. 2. Excavation Permit Fee. The city shall establish an Excavation permit fee in an amount sufficient to recover the following costs: A. City management costs. B. degradation costs, if applicable. Subd. 3. Obstruction Permit Fee. The city shall establish the obstruction permit fee and shall be in an amount sufficient to recover the city management costs. JMS-222029v6 RC145-326 1 l _ Subd. 4. Payment of Permit Fees. No excavation permit or obstruction permit shall be issued without payment of excavation or obstruction permit fees. The city may allow Applicant to pay such fees within thirty (30) days of billing, or on some other payment plan agreed to by the Director at his discretion. Subd. 5. Non Refundable. Permit fees that were paid for a permit that the city has revoked for a breach as stated in Subdivision 22 are not refundable. Subd. 6. Application to Franchises. Unless otherwise agreed to in a franchise, management costs may be charged separately from and in addition to the franchise fees imposed on aright-of--way user in the franchise. 802.25 Right-of-Way Patching and Restoration. Subd. 1. Timing. The work to be done under the excavation permit, and the patching and restoration of the right-of--way as required herein, must be completed within the dates specified in the permit, increased by as many days as work could not be done because of circumstances beyond the control of the permittee or when work was prohibited as unseasonal or unreasonable under Subdivision 16. Subd. 2. Patch and Restoration. Permittee must patch its own work. The city may choose either. to have the permittee restore the surface and subgrading portions of right-of--way or to restore the surface portion. ofright-of--way itself. A. City .Restoration. If the city restores the surface portion of right-of--way, permittee shall pay the costs thereof within thirty (30) days of billing. If, following such Restoration, the pavement settles due to permittee's improper work, the permittee shall pay to the city, within thirty (30) days of billing, all costs associated with correcting the defective work.. B. Permittee Restoration.. If the permittee restores the right-of--way itself, it shall at the time of .application for an Excavation permit post a construction performance bond in accordance with the provisions of ..Minnesota Rule 7819.3000. C. Degradation fee in Lieu of Restoration. In lieu of right-of--way .restoration, aright-ofway user may elect to pay a degradation fee. However, the right-of--way user shall remain responsible for replacing and compacting the subgrade and aggregate based material in the excavation and the degradation fee shall not include the cost to accomplish these responsibilities. Subd. 3. Standards. The permittee shall perform patching and restoration according to the standards and with the materials specified by the city and shall comply with Minnesota Rule 7819.1100. JMS-222029v6 RC 145-326 12 Subd. 4. Duty to Correct Defects. The permittee shall correct defects in patching, or restoration performed by permittee or its agents. Upon notification from the city, permittee shall correct all restoration work to the extent necessary, using the method required by the city. Unless otherwise agreed to by the Director, said work shall be completed within fourteen (14) calendar days of receipt of the notice from the city, not including days during which work cannot be done because of circumstances constituting .force majeure or days when work is prohibited as unseasonal or unreasonable under Subdivision 16. Subd. 5. Failure to Restore. If the permittee fails to restore the right-of--way in the manner and to the condition required by the city, or fails to satisfactorily and timely complete all restoration required by the city, the city shall notify the permittee in writing of the specific. alleged failure or failures and shall allow the permittee ten (10) days from receipt of said written notice to cure said failure or failures, unless otherwise extended by the Director. In the event the permittee fails to cure, the city may at its option perform the necessary work and permittee shall pay to the city, within thirty (30) days of billing, the cost of restoring the right-of--way. If permittee fails to pay as required, the city may exercise its rights under the construction performance bond. 802.27 Joint Applications. Subd. 1. Joint application. Registrants may jointly apply for permits to excavate or obstruct the right-of--way at the same place and time. Subd. 2. Shared fees. Registrants who apply for permits for the same obstruction or excavation, which the. city does not perform, may share in the payment of the obstruction or excavation permit fee. In order to obtain a joint permit,. registrants must agree among themselves as to the portion each will pay and indicate the same on their applications. Subd. 3. With city projects. Registrants who join in a scheduled obstruction or excavation performed by the city, whether or not it is a joint application by two or more registrants or a single application, are not required to pay the excavation or obstruction and degradation portions of the permit fee, but a permit would still be required. 802.29 Supplementary Applications. Subd. 1. Limitation on Area. Aright-of--way permit is valid only for the area of the right-of--way specified in the permit. No permittee may do any work outside the area specified in the permit, except as provided herein. Any permittee which - determines that an area greater than that specified in the permit must be JMS-222029v6 RC 145-326 13 obstructed or excavated must before working in that greater area (i) make application for a permit extension and pay any additional fees required thereby, and (ii) be granted a new permit or permit extension. Subd. 2. Limitation on Dates. Aright-of--way permit is valid only for the dates specified in the permit. No permittee may begin its work before the permit start date or, except as provided herein, continue working after the end date. If a permittee does not finish the work by the permit end date, it must apply for a new permit for the additional time it needs, and receive the new permit or an extension of the old permit before .working. after the .end date of the previous permit. This supplementary application must be submitted before the permit end date. 802.31 Other Obligations. Subd. 1. Compliance With Other Laws. Obtaining aright-of--way permit does not relieve permittee of its duty to obtain all other necessary permits, licenses, and authority and to pay all fees required by the city or other applicable rule, law or .regulation. A permittee shall comply with all requirements of local, state and federal laws, including Minn. Stat. 216D.01-.09 (Gopher One Call Excavation Notice .System). A pennittee shall perform all work in conformance with all applicable codes and established .rules and regulations, and is responsible for all work done in the right-of--way pursuant to its permit, regardless of who does .the work. Subd. 2. Prohibited Work. Except in an emergency, or with the approval of the city, no right-of--way obstruction or excavation may be .done when seasonally prohibited or when conditions are unreasonable for such work. Subd. 3. Interference with Right-of--Way. A permittee shall not so obstruct a right-of--way that the natural free and clear passage of water through the gutters or other waterways shall be interfered with, unless otherwise approved by the Director. Private vehicles of those doing work in the right-of--way may not be parked within or next to a permit area, unless parked in conformance with city parking regulations. The loading or unloading of trucks must be done solely within the defined permit area unless specifically. authorized by the permit. Subd. 4. Traffic Control. A permittee shall implement traffic control measures in the area of the work and shall use traffic control procedures in accordance with the most recent manuals on uniform traffic control, traffic control devices and traffic zone layouts published by the State of Minnesota. 802.33 Denial of Permit. The city may deny a permit for failure to meet the requirements and conditions of this Section or if the city determines that the denial is necessary to protect the health, safety, and welfare or n when necessary to protect the right-of--way and its current use. JMS-222029v6 RC 145-326 14 802.35 Installation Requirements. The excavation, backfilling, patching and restoration, and all other work performed in the right- of-way shall be done in conformance with Minnesota Rules 7819.1100, 78.19.5000 and 7819.5100 and other applicable local requirements, in so far as they are not inconsistent with the Minnesota Statutes sections 237.162 and 237.163. 802.37 Inspection. Subd. 1. Site Inspection. Permittee shall make the work-site available to the city and to all others as authorized by law for inspection at all reasonable times during the execution of and upon completion of the work. Subd. 2. Authority of Director. A. At the time of inspection the Director may order the immediate cessation of any work which poses a serious threat to the life, health, safety or well- being of the public. B. The Director may issue an order to the permittee to correct any work that does not conform to the terms of the permit or other applicable standards, conditions, or code. If the work failure is a "substantial breach" within the meaning of Minn. Stat. § 237.163 subd. 4(c), the order shall state that failure to correct the violation will be cause for revocation of the permit after a specified period determined by the Director. The permittee shall present proof to the Director that the violation has been corrected within the time period set forth by the Director in the order. Such proof shall be provided no later than the next business day following the day of completion. If such proof has not been presented within the required time, the Director may revoke the permit pursuant to Section 802.43. 802.39 Work Done Without a Permit. Subd. 1. Emergency Situations. Each registrant shall immediately notify the Director of any event regarding its facilities that the registrant considers to be an emergency. The registrant may proceed to take whatever actions are necessary to respond to the emergency. Within two (2) business days after the occurrence of the emergency, unless the Director allows a longer time, the registrant shall apply for the necessary permits, pay the fees associated therewith. and fulfill the rest of the requirements necessary to bring itself into compliance with this Section for the actions it took in response to the Emergency. If the Director concludes that a registrant is required to perform work at the facility solely because of an emergency created by another registrant and the work is performed in the immediate area of the emergency work, the Director may waive the permit JMS-222029v6 RC 145-326 15 otherwise required by the registrant(s) called to the emergency created by another p~Y• If the city becomes aware of an emergency regarding a registrant's facilities, the city will attempt to contact the local representative of each registrant affected, or potentially affected, by the emergency. In any event, the city may take whatever action it deems necessary to respond to the emergency, the cost of which shall be borne by the registrant whose facilities occasioned the emergency. Subd. 2. Non-Emergency_Situations.. Except in an emergency, any person who, without first having obtained the necessary permit, obstructs or excavates aright- of-way must subsequently obtain a permit, pay an unauthorized work permit fee in an amount established from time to time by the city council, deposit with the city the fees necessary to correct any damage to the right-of--way and comply with all of the requirements of this Section. 802.41 Supplementary Notification. If the obstruction or excavation of the right-of :way begins later or ends sooner than the date given on the permit, permittee shall notify the city. of the accurate information as soon as this information is known. 802.43 Revocation of Permits. Subd. 1. Substantial Breach. The city reserves its right to revoke any right-of- way permit, without a fee refund, if there is a substantial breach of the terms and conditions of any statute, ordinance, rule or regulation, or any material condition of the permit. A substantial breach by permittee shall include, but .shall not be limited to, the following: A. The violation of any material provision of the right-of--way permit; B. An evasion or attempt to evade any material provision of the right-of--way permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the city or its citizens; C. Any material misrepresentation of fact in the application for. aright-of- way permit; D. The failure to complete the work in a timely manner; unless a permit extension is obtained or unless the failure to complete work is due to reasons beyond the permittee's control; or E. The failure to correct, in a timely manner, work that does not conform to a condition indicated on an order issued pursuant to section 19B-19. JMS-222029v6 RC 145-326 16 -~ Subd. 2. Written Notice of Breach. If the city determines that the permittee has _ committed a substantial breach of a term or condition of any statute, ordinance, rule, regulation or any condition of the permit the city shall make a written demand upon the permittee to remedy such violation. The demand shall state that continued violations may be cause for revocation of the permit. A substantial breach, as stated above, will allow the city to place. additional or revised conditions on the permit to mitigate and remedy the breach. Subd. 3. Response to Notice of Breach. Within a time established by the Director ..following permittee's receipt of notification of the breach, permittee shall provide the city with a plan to cure the breach, acceptable to the city. Permittee's failure to submit a timely and acceptable plan, or permittee's failure to timely implement the approved plan, shall be cause for immediate revocation of the permit. Subd. 4. Reimbursement of city costs. If a permit is revoked, the permittee shall also reimburse the city for the city's reasonable costs, including Restoration costs and the costs of collection and reasonable attorneys' fees incurred in connection with such revocation. 802.45 Mapping Data. Subd. 1. Rule. Each registrant and permittee shall provide mapping information in a form required by the city in accordance with Minnesota Rules 7819.4000 and 7819.4100. 802.47 Under~roundin~. Subd. 1. Purpose. The purpose of this Section 802.47 is to promote the health, safety and general welfare of the public and is intended to foster (i) safe travel over the right-of--way, (ii) non-travel related safety around. homes and buildings where overhead feeds are connected and (iii) orderly development in the city. Location and relocation, installation and reinstallation of Facilities in the right-of- way or in or on other public ground must be made in accordance with this Subdivision. This Subdivision is intended to be enforced consistently with state and federal law regulating right-of--way users, specifically including but not limited to Minnesota Statutes, Sections 161.45, 237.162, 237.163, 300.03, 222.37, 238.084 and 216B.36 and the Telecommunications Act of 1996, Title 47, U.S.C. section 253. Subd. 2. Undergrounding of Facilities. Facilities newly installed, constructed or otherwise placed in the public right-of--way or in other public property held in common for public use must be located and maintained. underground pursuant to the terms and conditions of this section and in accordance with applicable construction standards, subject to the exceptions below. Above-ground installation, construction, modification, or replacement of meters, gauges, transformers, street lighting, pad mount switches, capacitor banks, re-closers and JMS-222029v6 RC 145-326 17 ~ service connection pedestals shall be allowed. The requirements of this Subdivision shall apply equally outside of the corporate limits of the city coincident with city jurisdiction of platting, subdivision regulation or comprehensive planning as may now or in the future be allowed by law. Subd. 3. Undergrounding of Permanent Replacement, Relocated or Reconstructed Facilities. If the city finds that one or more of the purposes set forth in Section 802.47, Subd. 1. would be promoted, the city may require a permanent replacement, relocation or reconstruction of a Facility of more than 300 feet to be located, and maintained underground, with due regard for seasonal working conditions. For purposes of this section, reconstruction means any substantial repair of or any improvement to existing Facilities. Undergrounding may be required whether a replacement, relocation or reconstruction is initiated by the right-of--way user owning or operating the Facilities, or by the city in connection with (1) the present or future use by the city or other local government unit of the right-of--way or other public ground for a public project, (2) the public health or safety, or (3) the safety and convenience of travel over the right-of--way. Subd. 4. Exceptions to Undergrounding. The following exceptions to the strict application of this Subdivision shall be allowed upon the conditions stated: A. Transmission Lines. Above-ground installation, construction, or placement of those Facilities commonly referred to as "high voltage transmission lines" shall be allowed .unless the council requires undergrounding of the Facilities after providing the right-of--way user notice and an opportunity to be heard. This provision shall not be construed as waiving the requirements of any other ordinance. or regulation of the city as the same may apply to any such proposed project. S. Technical/Economic Feasibility; Promotion of Policy. Above-ground installation, construction, or placement of Facilities shall be allowed in residential, commercial and industrial areas where the council, following consideration and recommendation by the .planning commission, finds that: 1. Underground placement would place an undue financial burden upon the landowner, ratepayers, or right-of--way user or would deprive the landowner of the preservation and enjoyment of substantial property rights; or, 2. Underground placement is impractical or not technically feasible due to topographical, subsoil or other existing conditions which adversely affect underground Facilities placement. 3. Failure to promote the purposes of undergrounding. The right-of- way user clearly and convincingly demonstrates that none of the JMS-222029v6 RC 145326 18 --~, purposes under Section 802.47, Subd. 1 would be advanced by _ underground placement of Facilities on the project in question, or the city determines on its own review that undergrounding is not warranted based on the circumstances of the proposed undergrounding. C. Temporary Service. Above-ground installation, construction, or placement of temporary service lines shall only be allowed: 1. .During new. construction of any project for a period not to exceed twenty-four (24) months; 2. During an emergency in order to safeguard lives or property within the city; 3. For a period of not more than seven (7) months when soil conditions make excavation impractical. Subd. 5. Retirement of Overhead Facilities. The city council may determine whether it is in the public interest that all Facilities within the city, or Facilities within certain districts designated by the city, be permanently placed and maintained underground by a date certain or target date, independently of undergrounding required pursuant to Section 802.47, Subd. 2. of this Code (new Facilities) and subdivision 802.47, Subd. 3. (Replacement Facilities). The decision to underground must be preceded by a public hearing, after published notice and written notice to the utilities affected. (Two weeks published: 30 days written.) At the hearing the council must consider items (1) - (4) in Section 802.47, Subd. S.B. of this Section and make findings. Undergrounding may not take place until -city council has, after hearing and notice, adopted a plan containing items (1) - (6) of Section 802.47, Subd. S.C. of this Section. A. Public Hearings. A hearing must be open to the public and may be continued from time to time. At each hearing any person interested must be given an opportunity to be heard. The subject of the public hearings shall be the issue of whether Facilities in the right-of--way in the city, or located within a certain district, shall all be located underground by a date certain. Hearings are not necessary for the undergrounding required under Subdivisions 24.B. and D. of this Section. B. Public Hearing Issues. The issues to be addressed at the public hearings include but are not limited to: 1. The costs and benefits to the public of requiring the undergrounding of all Facilities in the right-of--way. JMS-222029v6 RC 145-326 19 2. The feasibility and cost of undergrounding all Facilities by a date certain as determined by the city and the affected utilities. 3. The tariff requirements, procedure and rate design for recovery or intended recovery of incremental costs for undergrounding by the utilities from ratepayers within the city. 4. Alternative financing options available if the city deems it in the public interest to require undergrounding by a date certain and deems it appropriate to participate in the. cost otherwise borne by the ratepayers. Upon completion of the hearing or hearings, the city council must make written findings on whether it is in the public interest to establish a plan under which all Facilities will be underground, either citywide or within districts designated by the city. C. Undergrounding Plan. If the council finds that it is in the public interest to underground all or substantially all Facilities in the public right of way or in non- right-of--way public ground, the council must establish a plan for such undergrounding. The plan for undergrounding must include at least the following elements: 1. Timetable for the undergrounding. 2. Designation of districts for the undergrounding unless the undergrounding plan is citywide. 3. Exceptions to the undergrounding requirement and procedure for establishing such exceptions. 4. Procedures for the undergrounding process, including but not limited to coordination with city projects and provisions to ensure compliance with non-discrimination requirements under the law. 5. A financing plan for funding of the incremental costs if the city determines that it will finance some of the undergrounding costs, and a determination and verification of the claimed additional costs to underground incurred by the utility. 6. Penalties or other remedies for failure to comply with the undergrounding. Subd.6. Developer Responsibility. All owners, platters, or developers are responsible for complying with the requirements of this Subdivision, and prior to final approval of any plat or development plan, shall submit to the JMS-222029v6 RC 145-326 2~ ~'~ Director written instruments from the appropriate right-of--way users -- showing that all necessary arrangements with said users for installation of such Facilities have been made. 802.49 Location and Relocation of Facilities. Subd. 1. Rule. Placement, location, and relocation of facilities must comply with the Act, with other applicable law, and with Minnesota Rules 7819.3100, 7819.5000 and 7819.5100, to the extent the rules do not limit authority otherwise available to cities. A. Relocation Notification Procedure: The Director shall notify the utility owner at least three months in advance of the need to relocate existing facilities so the owner can determine if relocation or replacement is required and plan any required work. The Director shall provide a second notification to the owner one month before the owner needs to begin the relocation.. The utility owner shall begin. relocation of the facilities within one month of the second notification. To the extent technically feasible, all utilities shall be relocated within one month or in a time frame determined by the Director. The Director may allow a different schedule if it does not interfere with the city's project. The utility owner shall diligently work to relocate the facilities within the above schedule. B. Delay to City Project:. The Director shall notify the utility owner if the owner's progress will not meet the relocation schedule. If the owner fails to meet the relocation schedule due to circumstances within its control, the city may charge the utility owner for all costs incurred and. requested by a contractor working for the city who is delayed because the relocation is not completed in the scheduled timeframe and for all costs incurred by the city due to the delay. C. Joint Trenching: All Facilities shall be placed in appropriate portions of right-of--way so as to cause minimum conflict with other underground Facilities: When technically appropriate and no safety hazards are created, all utilities shall be installed, constructed or placed within the same trench. Notwithstanding the foregoing, gas and electric lines shall be placed in conformance with Minnesota Rules pt. 7819.5100, Subd. 2, governing safety standards. Subd. 2. Corridors. The city may assign a specific area within the right-of--way, or any particular segment thereof as may. be necessary, for each type of facilities that are or, pursuant to current technology, the city expects will be located within the right-of--way. All excavation, obstruction, or other permits issued by the city involving the installation or replacement of Facilities shall designate the proper corridor for the facilities at issue. A typical crossing section of the location for utilities may be on file at the Director's office. This section is not intended to JMS-222029v6 RC145-326 21 establish "high density corridors". Any Registrant who has facilities in the right-of--way in a position at variance with the corridors established by the city may remain at that location until the city requires Facilities relocation to the corridor pursuant to relocation authority granted under Minnesota Rules part 7819.3100 or other applicable law. Subd. 3. Limitation of Space. To protect the public health, safety, and welfare or when necessary to protect the right-of--way and its current use, the city shall have the power to prohibit or limit the placement of new or additional facilities within the right-of--way. In making such decisions, the city shall strive to the extent possible to accommodate all existing and potential users of the right-of--way, but shall be guided primarily by considerations of the public interest, the public's needs for the particular utility service, the condition of the right-of--way, the time of year with respect to essential utilities, the protection of existing facilities in the right-of--way, and future city plans for public improvements and development projects which have been determined to be in the public interest. 802.51 Pre-excavation Facilities Location. In addition to complying with the requirements of Minn. Stat. 216D.01-.09 ("One Call n Excavation Notice System") before the start date of any right-of--way excavation, each registrant who has facilities or equipment in the area to be excavated shall be responsible to mark the ~.~,. horizontal placement of all said facilities, to the extent technically feasible. To the extent its records contain such information, each registrant shall provide information regarding the approximate vertical location of their facilities to excavators upon .request. Nothing in this subsection is meant to limit the rights, duties and obligations of the facility owners or excavators as set forth in Minnesota Statutes, Section 216D.01-.09. 802.53. Interference By Other Facilities. When the city does work in the right-of--way in its governmental right-of--way management function and finds it necessary to maintain, support, or move a registrant's facilities to carry out the work without damaging registrant's facilities, the city shall notify the local representative as early as is reasonably possible. The city costs associated therewith will be billed to that registrant and must be paid within thirty (30) days from the date of billing. Each registrant shall be responsible for the cost of repairing any facilities in the right-of--way which it or its facilities damages. 802.55 Right-of-Way Vacation -Reservation of Right. If the city vacates aright-of--way that contains the facilities of a registrant, the registrant's rights in the vacated right-of--way are governed by Minnesota Rules 7819.3200. 7MS-222029v6 RC 145-326 22 802.57 Indemnification and Liability. By registering with the city, or by accepting a permit under this Section, a registrant or permittee agrees to defend and indemnify the city in accordance with the provisions of Minnesota Rule 7819.1250. 802.59 Abandoned Facilities. Subd. 1. Discontinued Operations. A registrant who has decided to discontinue all or a portion of its operations in the city must provide information satisfactory to the city that the registrant's obligations for its facilities in the right-of--way under this Section have been lawfully assumed by another registrant. Subd. 2. Removal. Any registrant who has abandoned facilities in any right-of- way shall remove them from that right-of--.way pursuant to Minnesota Rule Part 7819.3300, unless the requirement is waived by the Director. 802.61 Appeal. A right-of--way user that: (1) has been denied registration; (2) has been denied a permit; (3) has had permit revoked; or (4) believes that the fees imposed are not in conformity with Minn. Stat. § 237.163, Subd. 6 may have the denial, revocation, or fee imposition reviewed, upon written request, by the city council. The city council shall act on a timely written request at its next regularly scheduled meeting. A decision by the city council affirming the denial, revocation, or fee imposition will be in writing and supported by written findings establishing the reasonableness of the decision. 802.63 Reservation of Regulatory and Police Powers. A permittee's or registrant's rights are subject to the regulatory and police powers of the city to adopt and enforce general ordinances necessary to protect the health, safety and welfare of the public. 802.65 Severability. If any section, subsection, sentence, clause, phrase, or portion of this Section is for any reason held invalid or unconstitutional by any court or administrative agency of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof. If a regulatory body or a court of competent jurisdiction should determine by a final, non-appealable order that any permit, right or registration issued under this Section or any portions of this Section. is illegal or unenforceable, then any such permit, right or registration granted or deemed to exist hereunder shall be considered as a revocable permit with a mutual right in either party to terminate without cause upon giving sixty (60) days written notice to the other. The requirements and conditions of such a revocable permit shall be the same requirements and conditions as set forth in the permit, right or registration, respectively, except for conditions relating to the term of the permit and the right JMS-222029v6 RC 145-326 23 of termination. Nothing in this Section precludes the city from requiring a franchise agreement with the applicant, as allowed by law, in addition to requirements set forth herein. Section 2. City of Richfield Code Sections are hereby repealed. Section 3. This ordinance becomes effective from and after its passage and publication. Adopted in session of the City Council of the City of Richfield, Minnesota, held this day of , 2003. Mayor of the City of Richfield Attest: City Clerk JMS-222029v6 RC 145-326 24 AGENDA SECTION: presentations AGENDA ITEM # 5 REPORT # 125 STAFF REPORT CITY COUNCIL MEETING JUNE 10, 2003 REPORT PREPARED BY: COUNCIL PRESENTER: DEPARTMENT DIRECTOR REVIEW: REVIEWED BY CITY MANAGER: CHRIS REGIS, FINANCE MANAGER Nam, TITLE ITEM FOR COUNCIL CONSIDERATION: Receipt of the City of Richfield Comprehensive Annual Financial Report (CAFR) for the fiscal year ended December 31, 2002. I. RECOMMENDED ACTION: By Motion: Accept the Comprehensive Annual Financial Report of the City for the year ended December 31, 2002. III. BACKGROUND The City's auditing firm, HLB Tautges Redpath, Ltd., has completed the annual audit of the City's financial records for the fiscal year ended December 31, 2002. A representative of HLB Tautges Redpath, Ltd. will be present to make a brief presentation on the 2002 financial information and answer questions. In addition, the CAFR wilt be submitted to the State of Minnesota pursuant to State law and to the Government Finance Officers Association for the Certificate of Achievement for Excellence in Financial Reporting program. ~'' -, L`~ _._ . III. BASIS OF RECOMMENDATION A. POLICY • Action to be taken at the June 10, 2003 City Council meeting is the official receipt of the December 31, 2002 City of Richfield CAFR by the City Council. • The City's auditor has performed an audit of the City's financial records for the year ended December 31, 2002 and prepared reports to the City Council concerning legal compliance and internal controls. B. CRITICAL ISSUES • Action on this item is requested at the June 10, 2003 City Council meeting. C. FINANCIAL • N/A D. LEGAL • The CAFR will be submitted to the State of Minnesota, pursuant to State law. ~, '~ __ IV. ALTERNATIVE RECOMMENDATION~S~ • The City Council could ask the auditors for further explanations of their findings at a future Worksession. V. ATTACHMENTS • None. VI. PRINCIPAL PARTIES EXPECTED AT MEETING • Tom Hodnefield, Principal, HLB Tautges Redpath, Ltd.