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06-19-95 agendaCITY OF RICHFIELD, MINNESOTA MONDAY, JUNE 19, 1995 SPECIAL CITY COUNCIL MEETING WITH HOUSING AND REDEVELOPMENT AUTHORITY 7:00 P.M. COUNCIL CHAMBERS AGENDA CALL TO ORDER I. PRESENTATION OF PROPOSED CONVEYANCE OF THREE RENTAL APARTMENT COMMUNITIES TO HRA AND PURCHASE OF REPLACEMENT RESERVE THE CITY COUNCIL IS PRESENT TO HEAR THE PRESENTATION AND PARTICIPATE IN DISCUSSION. NO CITY COUNCIL ACTION IS REQUIRED. BACKGROUND INFORMATION IS PROVIDED IN HRA LETTER NO. 37 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 861-9702. CITY OF RICHFIELD, MINNESOTA MONDAY, JUNE 12, 1995 SPECIAL CITY COUNCIL MEETING 5:30 P.M. - 7:00 P.M. CHAMBERS CALL TO ORDER OPEN HOUSE REGARDING PROPOSED OPTIONS TO ADDRESS TRAFFIC PROBLEMS AND RELATED ENVIRONMENTAL .ISSUES ALONG 76TH STREET FROM I-35W TO XERXES AVENUE -~ COUNCIL LETTER N0. 144 ADJOURNMENT REGULAR CITY COUNCIL MEETING 7:00 P.M. CHAMBERS AGENDA INTRODUCTORY PROCEEDINGS CALL TO ORDER PLEDGE OF ALLEGIANCE PRESENTATIONS PRESENTATION OF CERTIFICATES OF APPRECIATION TO 1995 MISS RICHFIELD CANDIDATES COUNCIL LETTER NO. 145 2. PRESENTATION OF FOURTH OF JULY BUTTONS FROM RICHFIELD HIGH SCHOOL DRUM MAJORS 3. PRESENTATION OF "GENE AND MARY JACOBSEN OUTSTANDING CITIZEN" AWARD TO LOWELL CARSON COUNCIL LETTER NO. 146 4: PRESENTATION OFTEN YEAR SERVICE AWARD BY MN S-PORTS FEDERATION TO CITY OF RICHFIELD FOR HOSTING SOFTBALL TOURNAMENTS FOR TEN YEARS COUNCIL LETTER NO. 147 AGENDA APPROVAL 5. COUNCIL APPROVAL OF AGENDA ADMINISTRATIVE REPORTS & .OTHER BUSINESS 6. CONSIDERATION OF DECISION ON 76TH STREET WEST OF I-35W STUDY COUNCIL LETTER NO. 148 7. APPROVAL "OF MINUTES OF THE (1) SPECIAL CITY COUNCIL MEETING-OF MAY 22, 1995; (2) REGULAR CITY COUNCIL MEETING OF MAY 22, 1995; AND (3) CITY COUNCIL STUDY SESSION OF JUNE 5, 1.995 8. OPPORTUNITY FOR PERSONS TO ADDRESS THE COUNCIL ON ITEMS NOT LISTED ON THE 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- LISTED ON THE CONSENT'CALENDAR ARE RECOMMENDED FOR APPROVAL. A. CONSIDERATION OF APPROVAL OF RESOLUTION AUTHORIZING NAME CHANGE FROM RICHFIELD SISTER CITY COMMISSION TORICHFIELD FRIENDSHIP CITY COMMISSION C.L. 149 B. CONSIDERATION OF APPROVAL OF APPLICATION FOR COMMUNITY CELEBRATION EVENT LICENSE AND FEE WAIVER FROM FOURTH OF JULY COMMITTEE FOR JULY 4, 1995 C.L. 150 C. CONSIDERATION OF APPROVAL OF APPLICATION FOR TEMPORARY ON-SALE, NON- INTOXICATING MALT LIQUOR LICENSE AND FEE WAIVER FROM FRED BABCOCK V.F.W. POST 5555 FOR JULY 3, 1995 C.L. 151 D. CONSIDERATION OF APPROVAL OF APPLICATION FOR TEMPORARY ON-SALE NON- INTOXICATING MALT LIQUOR LICENSE AND FEE WAIVER FROM MINNEAPOLIS- RICHFIELD LEGION POST 435 FOR JULY 4, 1995 C.L. 152 E. CONSIDERATION OF APPROVAL OF APPLICATION FOR MUSICAL CONCERT LICENSE FROM 7 P.M. TO 9 P.M. ON JULY 30, 1995 FROM HOPE PRESBYTERIAN CHURCH, 7132 PORTLAND AVENUE PUBLIC HEARINGS 10. CONSIDERATION OF REQUEST FOR NEW 1995 NON-INTOXICATING MALT LIQUOR LICENSE FOR KINHDO RESTAURANT, INC., 6345 PENN AVENUE COUNCIL LETTER NO. 153 11. CONSIDERATION OF REQUEST FOR AMENDED CONDITIONAL USE PERMIT TO ALLOW DAYCARE OF UP TO 60 CHILDREN IN HENNEPIN TECHNICAL COLLEGE'S PARENT- INFANT EDUCATION PROGRAM IN LINCOLN HILLS CENTER, 7440 PENN AVENUE COUNCIL LETTER NO. 154 12. CONSIDERATION OF REQUEST FOR CONDITIONAL USE-PERMITTO ALLOW BIXBY'S BAGEL COMPANY TO OPERATE RESTAURANT AT 2906 WEST 66TH STREET (SOUTHDALE SQUARE) COUNCIL LETTER NO. 155 13. CONTINUATION OF PUBLIC HEARING AND CONSIDERATION OF RESOLUTION REGARDING APPROVING TRANSFER OF OWNERSHIP OF PARAGON CABLE TO TIME WARNER, INC. COUNCIL LETTER NO. 156 14. PUBLIC HEARING AND SECOND READING OF ORDINANCE. AMENDING SECTION 925.09 AND REPEALING SECTION 1320.11 OF CODE OF ORDINANCES REGARDING APPEAL PROCEDURES FOR CERTAIN CODE VIOLATIONS AND BRINGING SECTION 925.09 INTO COMPLIANCE WITH CURRENT STATE STATUTES COUNCIL LETTER NO. 157 PROPOSED ORDINANCE 15: CONSIDERATION OF FIRST READING OF UPDATES TO SECTION 310 OF CITY CODE, PERSONNEL SECTION COUNCIL LETTER NO. 158 RESOLUTION 16. CONSIDERATION OF RESOLUTION APPROVING LABOR AGREEMENT BETWEEN CITY OF RICHFIELD AND INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 1215 BARGAINING UNIT FOR CALENDAR YEARS 1995 AND 1996 COUNCIL LETTER NO. 159 ADMINISTRATIVE REPORTS & OTHER BUSINESS 17. CONSIDERATION OF PURCHASE IN EXCESS OF $5,000 FOR ACQUISITION OF LANDSCAPE STRUCTURES PLAYBOOSTER PLAYGROUND EQUIPMENT AT FREMONT PARK FROM EARL F. ANDERSEN, INC. IN AMOUNT OF $14,179.52 COUNCIL LETTER NO. 160 18. CONSIDERATION OF COUNCIL INPUT AND STAFF DIRECTION ON ISSUANCE OF RESTAURANT LICENSE TO LEVI'S RESTAURANT, 6509 NICOLLET AVENUE COUNCIL LETTER NO. 161 AIRPORT BUSINESS 19. AIRPORT STATUS REPORT 7TH STREET PROJECT BUSINESS 20. A 77TH STREET PROJECT STATUS REPORT CORRESPONDENCE 21. LEGISLATIVE REPORT COUNCIL CHOICE 22. COUNCIL DISCUSSION ITEMS 23. CLAIMS AND PAYROLLS 24. 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 861-9702. /8 CITY OF RICHFIELD, MINNESOTA Council Letter No. 161 Agenda June 12, 1995 Issue Statement: Council input and staff direction on the issuance of a restaurant license to Levi's Restaurant, 6509 Nicollet Avenue. Background: City ordinance provides for City staff to issue licenses to restaurants in the normal course of business. However, in February 1995, staff became aware of some neighborhood concerns regarding Levi Moutry's plan to open a restaurant in the space previously occupied by Rochelle's Turkey. As a result, staff organized a meeting on March 20, 1995, during which approximately 12 neighbors, Bloomington Health Sanitarian Dick Holloway, Public Safety Director Jack Erskine, and the owner, Levi Moutry, attended. The concerns that surfaced during that meeting related primarily to smoke and odors that the neighbors experienced, a number of years ago when Arnold's Restaurant occupied a building space nearby. Mr. Holloway explained that there were some serious flaws in Arnold's ventilation system and that it took several months for that to be resolved. Mr. Holloway and Mr. Moutry indicated to the neighbors that Levi's Restaurant should not generate any more smoke or odors than the former business, Rochelle's Turkey. In that regard, the neighbors seemed to be quite satisfied. Mr. Moutry expressed to neighbors that he would work closely with the neighborhood, and he strongly encouraged neighbors who had any complaints related to this business to contact him directly. Mr. Moutry indicated that his hours of business would be 11 a.m. to 10 p.m., Monday through Thursday, and 11 a.m. to 11 p.m. on weekends. Neighbors have been notified that this item has been placed on the agenda for Council discussion. Recommended Motion: Staff is seeking Council input on this issue because of the original concerns expressed by neighbors. It appears that the issues the neighbors expressed have been resolved: While the Council does not expressly issue restaurant licenses, staff is seeking their input. Basis of Recommendation: ,1. Levi's Restaurant complies with all codes and Bloomington. Health has approved all of their plans. In addition, it appears that the neighbors' concerns have been addressed and that the owner, Levi Moutry, seems more than willing to deal with any concerns now or in the future with the neighbors. ~~l Alternative Recommendation: 1. None Discussion/Decision Mode: Staff is seeking input from the Council on the issuance of this License. Respectfully submitted, Jam D. Prosser City anager JDP:ds /'~ CITY OF RICHFIELD, MINNESOTA Council Letter No. 160 Agenda-June 12, 1995 Issue Statement: Purchase in excess of $5,000 for the acquisition of playground equipment at Fremont Park. Background: The City Council policy resolution on purchasing provides that when the purchase of merchandise,. materials, equipment or construction exceeds the amount of $5,000, authority to purchase shall be submitted to the City Council for consideration. The City Council approved a $20,000 project to replace playground equipment at Fremont Park. Staff held a neighborhood meeting and later met. with two neighborhood representatives on the type of equipment wanted. City crews will be doing the removals and improvements to the borders. Request for quotes based on the neighbors input was sent to five vendors. Quotes have been received from two vendors in the following amounts: 1. Earl F. Andersen, Inc. $14,179.52 2. Flanagan Sales, Inc. $14,950.00 Recommended Motion: Approve the purchase of Landscape Structures PlayBooster playground equipment at Fremont Park from Earl F. Andersen, Inc. in the amounf of $14,179.52. Basis of Recommendation: 1. The vendor is qualified and the equipment meets the Consumer Product. Safety Commission guidelines and Americans with Disability Act standards and meets or exceeds all warranty and quality standards of the City. 2. There is sufficient funding in the project. Alternative Recommendation: 1. Approve one of the alternate vendors, although staff believes the recommended vendor and product meets the requirements. 2. Reject all quotes and have staff request new quotes, although staff. believes the prices are satisfactory, and every delay would set the project back until late in the summer season. 3. Reject all bids and cancel the project. f'?- l Discussion/Decision Mode: This item is scheduled on the consent calendar for the Council meeting of June 12, 1995. Staff would like-.approval now as delivery of the equipment takes approximately six weeks from contract approval. Respectfully submitted, James D. Prosser City Manager JDP:ds Attachment CITY OF RICHFIELD, MINNESOTA ~~ Council Letter No. 159 Agenda June 12, 1995 Issue Statement: Conditional approval of the 199.5-1996 labor contract for the International Association of Firefighters Local 1215. Background:- City staff has completed negotiations with the International Association of Firefighters Local 1215 on a labor agreement for the 1995 and 1996 calendar years with reopeners in 1996, subject to City Council approval The bargaining unit is represented by the International Association of Firefighters to the statewide organization. Local 1215. represents .the positions of Firefighters, Fire Lieutenants and Fire Captains. There are presently 24 employees represented within this unit. The following issues were negotiated between the representatives of Local 121.5 and the City: 1. SALARIES The parties agreed to a 1995 settlement which includes a January 1, 1995 salary increase of 2% across the board, and another 1 % across the board increase effective June. 1, 1995. This averages out to approximately a 2.5% increase. Wages can be reopened for 1996. 2. EMPLOYER'S INSURANCE CONTRIBUTION The parties agreed that the maximum employer's contribution for health insurance be increased by $20 to $335 per month per employee, effective January 1, 1995. This is identical to other employee groups for 1995. The parties also agreed that the employer's contribution for dental insurance be set at $24.00 per month per employee for individual coverage for 1995; this is identical to what other employee groups within the City receive. The parties also agreed that the employer will increase the term life insurance coverage from $15,000 to $20,000. This is comparable to other employee groups for 1995. Insurance can be reopened for 1996. 3. CLOTHING ALLOWANCE The parties agreed that the employer increase the annual clothing allowance from $355 to a maximum of $365 per year. Clothing allowance contributions can be reopened for 1996. 4. DISABILITY RESERVE The parties .agreed to modify the disability reserve benefit. This benefit continues to be limited to those employees who achieve and maintain a maximum sick leave bank. The accrual of disability reserve hours was decreased from 3.69 hours per pay period to 3.46 hours per pay period. Employees who accrue the 3.46 hours of disability reserve will I ~~~ receive an increase from 0.92 hours to 1.15 hours per pay period to be put into a cash bank. The entire cash bank will accrue for eligible employees until the end of the year -and then be paid to the employee in a lump sum. 5. HOLIDAY The parties agree that, effective July 1, 1995, the holiday accrual rate will increase from 10 to 11 duty shifts per year. No other changes in the bargaining agreement were negotiated. Overall, the package negotiated by the City and Local 1215 is comparable to other settlements for City employee groups for 1995 and allows for reopeners on certain economic issues for 1996. The attached resolution provides for Council ratification of the agreement and the contract is signed by the Firefighters. Recommended Motion: It is recommended that the City Council approve the labor agreement with the International Association of Firefighters Local 1215 for the 1995-1996 calendar years. Basis of Recommendation: 1. The City and Local 1215 have negotiated a settlement for all of the issues contained in the bargaining agreement. 2. The proposed agreement provides for economic benefits for the labor unit and clarifies existing language and practices. 3. The agreement appears to be a fair and equitable settlement for both Local 1215 and the City. Alternative Recommendation: 1. The City could elect not to approve the 1995-1996 labor agreement, resulting in additional bargaining and/or binding arbitration. 2. The City Council could defer ratification of the contract to a future meeting. However, that would delay processing back pay to individuals in the unit. Discussion/Decision Mode: In order to allow the City's accounting personnel to modify payroll records in a timely manner and to proceed to process the year of 1995 to date for wages and benefit changes included in the contract referenced herein, it is recommended that the City Council act on June 12, 1995 to adopt the attached resolution providing for contract changes and implementation effective January 1, 1995. Respectf y submitted, Jams Prosser City ager JDP:ds %~ RESOLUTION NO. RESOLUTION APPROVING LABOR AGREEMENT BETWEEN THE CITY OF RICHFIELD AND THE INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 1215. BARGAINING UNIT FOR THE CALENDAR YEARS 1995 AND 1996 WHEREAS, the International Association of Firefighters Local 1215 have reached an understanding concerning hours and other conditions of employment for the years 1995 and 1996; and WHEREAS, it is appropriate to proceed with the establishment of a labor agreement with the International Association of Firefighters Local 1215 who have negotiated in good faith; and WHEREAS, the Personnel Ordinance requires that contracts between the City and an exclusive representative of the employees in an appropriate bargaining unit .shall be implemented by Council resolution. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Richfield does hereby approve the labor agreement between the City of Richfield and the International Association. of Firefighters Local 1215 for the years 1995 and 1996 with reopeners on wages, insurances and clothing allowances for 1996 under the provisions of the labor agreement implemented effective January 1, 1995 upon the completion of a signed agreement by both parties. Adopted by the City Council of the City of Richfield, Minnesota this 12th day of June, 1995. Martin J. Kirsch,- Mayor ATTEST: Thomas P. 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U m !~ I R l0 A ~ N J Vf CITY OF RICf~IELD AMID THE INTEEtNATIONAL ASSOCIATION OF FIREFIG~iTEfiS LOCAL N0. 1215 FOR THE PERIOD JANUARY 1, 1995 3 DDCE~ER 31, 1996 TABLE OF OOTfrIIVTS ARTICLE PAGE 1 Preamble and Statement of Purpose '1 2 Definitions. 1 3 Recogni-tian. 2 4 tlnian Security 2 5 Employer Authority 3 6 Grievance Procedure. 3 7 Shift Schedules. 7 8 Posting .Work ScY~edules 7 9 Sick Leave 7 10 Disability Reserve 9 11 Inj ury an Duty Leave 10 12 Vacatian Leave 11 13 Holiday Leave. 13 14 Materru.ty Leave 14 15 Ovex-time Pay 14 16 Selective Call Back. 14 17 Trai ni ~ Pay 15 18 Court Pay. 15 19 Longevity Pay. 16 20 Acting Pay 16 22 Shift Exchange 17 23 Tuitian t. 17 24 Transfer & Transportatian between Fire Stations. 17 25 Clothing Allowarx7e 17 ARTICLE PAf~ 26 Lunch and Coffee Breaks. 18 27 Station Supplies 18 28 Physical Fitness 18 29 Savirygs Clause 18 30 NC~1-Dili mi natiaCl 18 31 Drug and Aloo~l Testing 19 32 Complete Agreem~.nt and Waiver of t~.a„~ ; r,; ~ . 26 33 Salary Scl~yedule. 26 34 Items Irr~.sistent with Agrzt. 27 35 Terms of Agreement 28 A~ddex~r3um A -Initial Uniform Clothing. 29 Addendum B -Uniform Clothing IList 30 pudderydum C -Severance Calculation 31 C~ ARTICLE 1 - PREAN~LE AND STATII~fP OF PURPOSE T1his AgregnP.nt made .and entered into by and between the City of Richfield (1'~Pra;naf~r referred to aS the Employer) and the Internatianat Associatian Of Firefighters Local No. 1215 (hereir~after referred to as the Unian) . The intent and purpose of this Agreement is to: 1. Provide a prnce~dure for the resolutian of disputes aarycernirx3 this Agreerent interpretation and/or applicatian; 2. To establish a full and complete understaixli.rx3 of the parties concerning standards of wages, hours, terms and other oo¢~ditions of employment for the duratian of the Agreement. ARTICLE 2 - DEFII~TITIONS EMPLOYEE mP.ans a mernber of the International Associatian of Firefighters Local No. 1215. REQJLAR BASE PAY meads the employee's biweekly rate of pay exclusive of any longevity or overtime pay or any other supplemental pay. EMPIAYER meads the City of Richfield, Minnesota, or its designated representative. NORMAL DUTY SHIFT means a continuous 24-hour work period. NORMAL AAIIV~JAL SHIFT SC~IEDUL~ mearLS 121 ryorn~al duty shifts. WORK WEEK means an average 55.85 hours per week. ANNUAL WORK YEAR means 2,904 hours per year. DIVISION HEAD means the Fire Chief or his designated representative. For the purposes of this sectian, the "designated repre.~entative" will generally mean the Assistant Fire Chief. DEPAR'IMEN'P HEAD mearLS the Director of Public Safety or his designated representative. FIRE DIVISION means the Richfield Fire Divisian Of .the Department of Public Safety. 1 ARTICLE 3 - REOOGTTITION Section 1: The Employer recognizes the Unian as the exclusive barga;n~ng representative under Mirmesota Statutes. 179.71, 1971 as ameryded, for the following positian classifications: Firefighter, fire lieutenant and fire captain. Sectian 2: In the event the Employer and the Union are unable to agree as to the inclusian or psrrlusian of a new Or modified job classificatian in the unit, the issue shall be suYxnitted to the Burezu of Mediatian Services for deteYnunatian; such determinatian to be binding for the duratian of the existirx,~ contract. ARTICLE 4 -UNION SECURITY Sectian 1: During the life of this Agreement, the Employer agrees to deduct regular monthly dues or a fair share contribution in an atmunt certified to be current by the treasurer of the i)nian from the pay of those employees so listed for whan such deductions are to be made. The amount of dues to be deducted shall be specified an the written authorization of the Unian Treasurer. The Employer shall remit the total amatuzt of deductions to the Treasurer of the Unian each month. Section 2: The Unian agrees to indemru.fy and hold the Employer harmless against any and all claims, suits, orders or judgments brought or issued against the Employer as a result of any actian taken or not taken by the Employer with refererx~e to dues deductian. Section 3: Not more than three (3) m~nbers of the Union Negotiating Committee may be absent fran duty with full pay for the purpose of negotiating terms of an Agreem~.nt if such negotiating meetings are scheduled at a time when such employees are sc•,heduled to be an duty. Such abseryoe from work must be approved by the Divisian Head and only if the Divisian Head determines the absence would not be detrimental to divisian work programs. n 2 ARTICLE 5 - II~IPLtiYE~2 AL~RITY Sectian 1: The Employer retains the full and unrestricted right to operate and .manage all manpower, facilities and equipment; to establish ftuyctions and programs; to set and amend budgets; to determine the utilizatioaz of terl~u~ology; to establish and modify the organizational stnacture; to select, direct, and determine the ntunbex of persaruyel; to establish work sc~ules; and to perform any inherent managerial function not specifically limited by this Agresnent. Sectian 2• The prerogatives and authority which the Employer has nit officially abridged, delegated or modified by this Agreement are retained by the. Employer, subject to the provisions of the Public Labor Relations Act of 1971 as Amended. ARTICLE 6 - GRIEVAl~ PROCIDURE Sectian 1: Definitian of Grievance. Grievanne as used in this sectian shall be defined as any dispute or disagregrent as to the interpretation or applicatian of any term or terms expressed in this Agreement.. The definition of grievance shall also include any dispute or disagreement as to just and r+easoa~able cause for discharge or other discipline. The parties recogrLi.zing that an orderly grievaix~e procedure is necessary, agree that each step must be strictly adhQ,red to as set forth hereinafter or the grievaix~e is forfeited. All grievaryoes must,be.filed within twenty-one (21) calendar days after the oocurr~er~ae of the ' giving rise to the grievaix~e ar twenty-o~~e (21) calendar days-after the aggrieved by exexrise of reasanable diligence should have been aware of the occurresx~e. Otherwise the right to file a grievance is forfeited, and ryo grievaix~e shall be deemed to exist. Sectian 2• Union Representation. The Employer shall recognize a Union Grievance Committee of not more than three (3) employees selected by the Union as grievance representatives of the ba~'g~ai nag unit. The Union shall notifyF]nploypx in 3 writing of the names of :such grievarx7e eatmittee members and of their successors and altezrlates. The grievance eamiittee shall px~oeP.ss grievarx~es at times other than their nermal duty hours unless specifically permitted to do so by the Divisian Head or his designated representative. Sectian 3: Procedure. Step One. An employee's grievance or those grievances submitted by the Unian shall be madein writing to the Divisionz Head. The written. grievaix7e shall set forth the nature of the grievanoe,.the fact upon which it is based, the provision or provisions of the Agreement allegedly violated, .and the relief .requested. .The Divisian Head. or his designated representative shall discuss the grievaix7e with .the employee and/or grievaix7e committee and submit. a written reply giving reasons for. his detexmir~ation to the employee and/or grievance ieocmtittee within seven (7) calendar days after receipt of the written grievarr.~. Step 2: If the grievarx~e is r~et settled in Step 1 and the FYnployee and/or grievar~ae comnuttee desires to appeal, the grievaryae shall be presented in writing to the Director of Public Safety within seven (7) calendar days after the Division Head's aaswer in Step 1. -The Public Safety Director or his representative shall meet with. the Stnployes and/or GYievarr.~e Committee and give a written answnx, giving the reasons for his determinatian, to their grievaix~e withim ten (10) calendar days of receipt of the written grievatyae. Step 3: If the grievarx~e is not resolved in the seeor~cl step, the GYievaryoe Committee shall notify the City Manager or his represP.ntativ+e in writing of the desire to appeal. within fifteen (15) calendar days after receipt of .the Director's ans~x:. The City Manager or his represeiztative shall meet with the Grievarx7e Committee and submit a written answex, giving the reasons for his determination, within fifteen (15) calendar days of receipt of the written grievance. Stems 4 - Arbitratian: If both parties, having exhausted the grievaryae procedure herein, canrx~t settle a grievarx5e, either paz-Ly may submit the issue(s) 4 dispute to arbitratian by filirx,~ a written referral within sev~z (7) calendar days after the City Manager's or his representative's answer in Step 3. The. parties shall attempt to agree upon an arbitrator within seven (7) calendar days after receipt of notice of the referral. In the event the parties are unable to agree upon an arbitrator within said seven (7) calendar days, either party may submit the issue in dispute to arbitratian as provided in the Public Employment Iabor Relations Act of 1971 as amended, M,.ru~esota Statutes 179.70, Subd. 4. Sectian 4: Waiver. If a grievaix:e is not. presented within the time limits set-forth above, it shall be considered "waived." If a grievarx~e is not appealed to the next step within the specified time limit or any agreed extensian thereof, it shall be eorLSidered settled cn the basis of the Employer's last answex. If the. Employer does not answer a grievance or an appeal thereof within the specified time. limits, the Un_ian may elect to treat the grievance as denied at that Step and immediately appeal the grievaix~e to the next .step. The time limit in each step may be extended by mutual written agreement of the F]nployer and the Employee and/or Grievance Ca~mittee involved in each step. Sectian 5: Duties of Arbitratian. The arbitrator or arbitratian board shall have no right to amend, modify, nullify, ignore, add to, subtract from the provisians of this Agr+eelment. He shall consider and decide only the specific issue submitted to him in writing by the Employer and the Unian, arxi shall have no authority to make a decisian an any other issue not so submitted to him, The arbitrator shall be without power to make decisions contrary to or i.r~coalsistent with or modifying or varying in any way the application of laws and rules and regulations having the force avid effect of law. The arbitrator shall submit in writing his decisian within thirty (30) calendar days following the close of the hearing or the suhmi.ssio~ of briefs by the parties, whichev~x is latex, unless the parties agree to an extensian thereof. The decision shall be based solely upon his interpretation of 5 the mearLisx,~ or application of the express terms of this Agreement to the facts of • the grievance presented. The decision of the arbitratar~ shall be final and binding on both the IImplvyer and the Unian. Sectian 6: C7yoiee of Remedy for Discipline Grievar~oes. If an employee has a grievance regardisyg just ar~d reasonable cause for discharge or other discipline, aryl if, as a result of the written r~espo~LSe of .Section 3, Step 3 above, the grievarx5e ~in~ unresolved, the employee shall have the right t0 elect either (1) the. arbitratian provision of Sectian 3, Step 4 above, or (2) the Civil Service Camussian appeal procedure. The grievant shall, within the time limits established above for proceeding fran Step 3 to Step 4 of the grievance procedure, elect in writing either the Step 4 arbitration procedure or the Civil Service Comnissian appeal procedure, and the electian of one shall constitute a waiver and termination of the right to elect the other.. Section 7: Waiver of Right to Veteran Prefernsx7e Hearing. A veteran who is entitled to a hearing pursuant to the provisions of Minr~sota Statutes, Section 197.46 shall have the right to elect instead the arbitratian procedure of this agreement. A veteran whc wishes to pursue the arbitratian procedure of this agreement instead of any remedy available to him iu~der Sectian 197.46 shall make such eleetian within the time limits. established above for proceeding from Step 3 to Step 4 of the grievance procedure, and a written electian of the grievaryoe propedure shall constitute a waiver and ternu,natian of the right to pursue any procedure or remedy available to the veteran undex Section 197.46. Section 8 : Fees and E~~per~ses . The .fees and expeYlses for the .arbitrator' s services arx3 proceedings shall be borne equally by the IImployer and the Union,. provided that each party shall be respoalsible for ea~ensating its own representatives and witnesses. If either party desires a verbatim record of the prodeedings, it may cause such a record to be made,.. providing it pays for the record. 6 ARTICLE 7 -SHIFT SC~~ilLES Sectian 1: The normal duty shift shall be twenty-four (24) eonsecrutive hours, The normal ntmtbex of scheduled duty shifts per year shall be 121 shifts. Section 2: Annual shift schedules .shall be posted by December 1st of the year preceding any change. The Empleyer shall, ex~eept in the case of gne~erxy, give -the employee notice of a change in his. individual shift srl~edule as far in advance as is reasonably practicable. ARTICLE 8 - PASTING WCRFC SC~~tJL~S Sectian 1: The Employer retains full and tuzrestriated right to establish work schedules and to perform any intr-.rent managerial function not specifically limited. by this Agreement. -Work schedules established by the Employer shall be posted in advance of the work shifts to which such work schedules apply.. Any change in the. work schedules established by the Employer which has the effect of increasing the hears to which employees covered by this AgreanP,rit are subject. to work assignment 'shall eanfer the right an either party to renegotiate tl'ye established rate of pay for the affected employees. Conversely, any rl~aryge in the work schedule established by the Employer which has the .effect of reducing. the number of hours to which employees covered by this Agreement are subject to assignment sha11 confer the right an either party to renegotiate the established-rate of pay for the affected emplay~s. ARTICLE 9 -SICK LEAVE Section 1: Sick leave shall be aazued by the employees at the rate of .seven and thirty-eight hunrredths (7.38) hours per biweekly payroll period of full-time service. Such sick leave may acx~nrnalate to fifty-six (56) duty shifts at the rate of seven and thirty-eight hundredths (7.38) hours per biweekly payroll period and tYber+eafter, at the rate of two and seventy-seven hundredths .(2.77) hours per biweekly payroll period with no maxinnmi aeczurnzlatian. 7 Sectian 2: Sick leave may be used by employees during the first six months of their,.. 1 t, provided, however,-that if an employee terminates employirent prio~ ~ ~~ to .-the ecmpletian of six months of service, such employee's final eanperLSatian shall be adjusted to reimburse the City for any :sick leave paid. Section 3: Sick leave may be used only in cases of actual illness or injury, legal quarantine and. to receive dental or medical care. Sick leave may also be used for serious il].r~ess, serious injury or death in the employee's itm~edi.ate family. Serious illness or injury is defiryed as an illness or injury which requires medical treatment and a consequent disability for which the employee's assistance is neaessazy, fate family for serious il]syess or injury shall be defined as wife, hu.~band and children. Nbther, father, brothe-r, sister,. grar~mtl~x, grandfathP.r', mother-in-law, father-i.n-law, daughter-i.n-law, san-in-law, brother-i.n-law and sister-in-law shall be ooa~sidered as within the definition of immediate family only i.n the case of death or hospitalization. For serious illness, injury or death in a maximum of three days of sick leave permi -the immediate family, there shall be for any single cccurre~x~e. Section 4• The Employer has. the right to verify the reported sickness of an employee for a period avnx two normal duty shifts by requiring a doctor's. certificate at the employee's expense for absences for which. sick leave was utilized. Sectian 5: E]nployees whose ernplaymetlt is terminated due to retirement, disability, p~xmanerit layoff, or other hanorable oondi.tions shall be granted severar~ae par in the amount of one-third of aecimtulated sick leave to a maxinnam of seven hundred twenty (720) hours.' Upcn death, the benefits are to be paid to named. survivors. (See Addendum C) i 8 ARTICLE 10 -DISABILITY RESERVE Sectian 1: An employee, upon reaching the maxi.naun aec~umil.ated sick leave acc:~vval of 56 duty shifts, and is acxxui_r~g sick leave at the rate of two and sev~lty-seven hundredths (2.77) hours per biweekly payroll pexiod, shall also aecxve three and forty-six one hurx9redths (3.46) hours per biweekly payroll period of full- time seraioes in a disability reserve bank. Such disability resexve hours may aac~urnxlate to eight hundred and forty (840) hours . Section 2: An employee who accrues three aryl forty-six one hundredths (3.46) hours of disability resPxve as stated in Sectian 1 will also accrue one and fifteen hundredths (1.15) hours per biweekly payroll period of full-time service too be cxedited to a cash bank. On the last payroll period of the calendar year, the entire cash bank is to be debited and paid to the employee in one. lump sum. Section 3: An employee may use disability reserve hours only after all banked sick leave hours have been used. Disability reserve hours may be used only in cases of actual illness or injury, legal quarantine and to receive dental or medical care. Disability reserve hours may also be used for serious illness, serious injury or death in the employee's immediate family. Serious illness or injury is defi.r~ed as an illness or injury which requires medical treatment and a consequent disability for which the employee's assistance is necessary. Immediate family for serious illness or injury shall be defined as wife, husbaixi aryl children. Nbther, father, brother, sister, grarxlnother, grandfather, mother-in-law, fathex-in-law, daughter- in-law, son-in-law, brotY~er-in-law and sister-in-law shall be c~LSidered as within the definitian of immediate family only in the case of death or hospitalization. For serious illness, injury or death in the imrediate family, tt~re shall be a maxinnun of three days of disability reserve hours pP~-+++; tted for any single cocurreix7e. 9 Sectian 4• The Employer has the right to verify the repor#-.ed illness or inj of the emmploeee by requiring a doctor's certificate at the employee's expense for abseix~es for .which disability reserve hours were utilized. Sectian 5: Disability reserve hours shall nDt be used in the calculation of severance. benefits for thaw e~loyeP-s wY~ose employment is ternlinated, due to retirement, disability, permanent layoff, or other honorable conditions. ARTICLE 11 -INJURY ON DUTY LEAVE Section 1: Leave of absetx~e with pay shall be granted to employees who become incapacitated as a result of injury or oecupatioa~al disease incurred through n° misconduct of their own while in the actual performarx~e of assigned duties. The employee must, if at all possible, report his injury within 48 hours of its oocurret~ee to qualify for injury-an-duty leave. In case of occupational disease, the employee must furnish canplete medical evidence that the disease is, in fact, directly related to the nature of his assigned duties. Such medical evidence must be fran an appropriate medical specialist. The Employer reserves the right to require at its discretian that the employee be examined by a PhYsira-an selected by the EYnployer. Should a dispute arise as to whether an employee's disease is, in fact, an occupational disease, the employee may submit the questian to the Mir~r~.sota Workers' C,anpensation CaYmissian for a hearing and final determinatian. If the Workers' Canpensatian Comnissian rules that the particular disease is an occupational disease, the Employer agrees to grant injury-on-duty leave to the affected employee. Section 2: If the employee is found to be eligible for injury-on-duty leave, he shall receive supplementary Paymexits from the Employer equal to thedifferexyoe betweeaz the total amount of all EYnployer injury related benefits, i.e. Workers' Canpensatian, and his normal rate of pay for a max:innutt of Ninety (90) consecutive calendar days. Such supplementary payments shall not be charged against the employee's aarued~sick leave. 10 Sectian 3: Injury-on-duty leave shall exterx3 for a maxim~un of ninety (90 ) consecutive calendar days immediately following the date of injury. The IInployer may require the injured employee to be examined by a physician selected by the Employer in order to determis~e whether the employee is able to return to work pursuant to the provisions of Section 4. Sectian 4: Injury-oar-duty leave shall be ternunated by the IInployer at such time as the employee is able to return to work or aduly-qualified physician determines that the employee is c~atipletely able to perform duties for the Employer for which he is qualified to perform. ARTICLE 12 -VACATION LEAVE Sectian 1: All employees shall be eligible for vacatian leave except that m employee shall be allowed to use vacatian le+av+e until after the oornpletian of one full year of e~nplaymetrt. , Sectian 2: Dtrployees shall aa~ve vacatian leave acx7ording to the following schedule: A. FY~ccn the begiruzing of oonta.nuous employment through the fifth (5th) year of continuous employcnPnt, each gnployee shall earn vacation at the rate of 144 hours of duty shift time per year. Such vacation leave shall be credited to the e~nplayee at the rate of five and fifty-four hundredths. (5.54) hours per biweekly payroll period. B. FY~ccn the begiruZing of the sixth (6th) year and an, through the tenth (10th) year of eantinuous employirnszt, the employee shall earn vacatian at the rate of 192 hours of duty shift time per year. Such vacation leave shall be credited to the employee at the rate of seven and thirty-eight hundredths (7.38) hours per biweekly payroll period. C. Fran the begiruLing of the eleventh (11th) year aryl an, through the fifteenth (15th) year, earn employee shall earn vacatian at the rate of 11 216 hours of duty shift time per year. Such vac'-ati-oar leave shall be oredited to the employee at the rate of eight and thirty-one hundredths (8.31) hours per biweekly payroll period. D. FY~cm the beginni ~ of the sixteenth (16th) year and on, through the nineteenth (19th) year, each employee shall earn vacatian at the rate of 264 hours of duty shift time per year. Such vacatian leave shall be credited to the employee at the rate of ten and fifteen hundredths (10.15) hours per biweekly payroll period. E. FYnm-the beginnirx3 of the twentieth. (20th) year and an, each employee shall earls vacation at the rate of 288 hr~urs of duty shift time per year. Such vacation leave shall be cxedited to the employee at the rate of eleven and eight hundredths (11.08) hog's per biweekly Payroll period. Section 3: Vacation leave must be taken within a twelve-moa~th period following the caYrpletian of the year in which the vacation has been accrued. Vacation hours aoc~urnalated by an ernployen in excess of his/her maxinnun limit shall be assigned by the Division Head. Employes shall use vacation leave in the amounts of not less than twelve (12) hours unless lesser amounts are approved by the Division Head or his designated representative for special reasocLS. Section 4: In the event an employee voluntarily terminates his emplo~mient with the Employer, he shall be paid for his aoc~nrnil.ated vacatian hours as of his texminatian date, provided he has given two weeks' notice of his tennir~atian. Employees who voluntarily ternunate prior to completing six months of continuous and active City service shall not be eligible for terminal vacatian pay. Section 5: All vacatian leave schedules must be approved by the Department Head or his designated representative and filed in the prescribed manr~x with the personnel Office. In approving such schedules, the Depax-tinent Head or his designated representative shall oonsider'thenormal operating prnc~edures of the fi~ 12 service and the seniority and wishes of the employee.. Seniority lists for vacation leave shall be posted by the Employer rb later than January 1 of each year. ARTICLE 13 - I~LIDAY LEAVE Section 1: Employees shall receive 240 Yours of holiday leave per year. Holiday hears shall be aczxued at the rate of nine and twenty-three hundredths (9.23) hours per biweekly payroll period. Effective July 1, 1995, employeP.s shall begin receiving 264 hours of holiday leave per year, to be carved at the rate of ten and sixteen hundredths (10.16) hours per biweekly payroll period. Section 2: All requests for holiday leave must be in writing. All holiday leave requests su~xni.tted by the employee may be denied by the Department Head or his designated representative, if the Department Head oar his designated representative determines that such requests would have an adverse effect on shift perfornianoe. Holiday leave shall be used in an amoaant of not less than four (4) hours tu~lP lesser amounts are approved by the Division f or his designated representative. Holiday hours acciurnzlated by an employee in excess of 264 hours shall be assigned by the Division Head. Section 3: Employees shall be given the option of selliryg back either twenty- four (24) hours or forty-eight (48) hours of holiday leave to the City at the employee's straight time rate of pay (biweekly rate divided by 111.7 times 24 equals holiday pay) during each calendar' year. The option to sell back must be exercised by June 1 of each year. Payment for holidays sold back shall be made in eonjunctioa~ with the pay period during which the holiday is sold back. Section 4• In the event an employee wluntarily terminated his employment with the Employer, h,e shall be paid for his aaxmiul.ated holiday leave ho~u s as of his termination date provided he has given two weeks' written netiee of termination. Employees who voluntarily terminate prior to ampleting a year of antinuous and active City service shall mt be eligible four termunal holiday leave pay. 13 ARTICLE 14 - N~,TERNIITY LEAVE If a pregnant employee Presents the EmPlayex with a certificate fran her physician stating that either for the health of the employee or her fetus, she should riot be perfornning firefighter activities until after the birth, and she therefore requests a leave until after the birth, the Employer will oo~r~sider such a request. For leave requested over-and-above leave authorized by State or Federal law, the Employer will consider the request an acase-by-case basis. ARTICLE 15 - ~r~ PAY Sec,-tian 1: Time worked in excess of an employee's regularly scYyeduled duty shift shall be compensated for at time ar~d one-half the employee's regular base rate. Section 2• Employees may be requested to work reasonable ama~ts of overtime at the discretion of the Employer. Each employee has an obligatian to work overtime if requested, unless the Divisian Head or his designated representative determines that unusual prevent the employee from so working. Sec.,-tian 3: Overtime shall be distributed as equally as practicable amoa'yg employees in each job classificatian, provided the employees are qualified to perform the specific overtime work required. Reasonable effort shall be made to allocate overtime an a voluntary basis. Section 4: Any employee called back to duty after the ea[~pletian of his regular duty shift shall be acmperLSated with pay at time and ane-half his .regular base rate and in no event for less than three (3) hrours• An extensian of a shift does not qualify for the three (3) hours. ARTICLE 16 -SELECTIVE CALL BACK Section l: It is the intentian of this Article to address emeYg~enoy resparLSes that engage a portian of the an-duty shift. In such emex~g~encY respo~~se situatioa~.s the shift officer, under the directives of the Employer, may selectively call back employees. 14 Sectian 2: ComperLSatian far employees called back to duty'imder provisions of this Article shall be subject to ARTICLE 15 - OVERTIII~ PAY, Section 4. .Section 3: When a selective call back is initiated tuxler the pravisic~s of Sectian l of this Article, the followiryg employees are eligible to report four duty: A. All employees arriving at a fire station within ten (10) minutes of the selective .call back. Sectian 4: It is the understarrling of the parties that provisions of this Article are rat interyded to reduce an-duty staffi.ryg levels or eliminate All-Call or General Alarm call backs under conditions prioscribed in the Employer's directives arxi operating. guidelines. Sectian 5: It is the taryderstaryding of the. parties that nothing oantained in this Article is meant to el~m~nate or abridge the FYnployer's right to schedule for duty or call to duty one or mare employees for the purpose of performing select~ecl assignments. Sectian 6: P.navisioans of this Article shall be reviewed quarterly by the Employer .and the Uni.an. At .such reviews, each party to this agreeinPnt shall retain the unreserved and unooaztested right to rectiave the Article from the labor agreement. ARTICLE 17 -TRAINING PAY An employee requested to report for duty at a time other than his normal scheduled shift for traini ~ shall r~eaeive paid time on a straight time basis. ARTICLE 18 - ~P PAY Employees r+equi.red by the Employer to testify in Court or administrative prooeed:i.ngs at a time other than their normal scheduled shift shall receive a minim~un of three (3) hours at time and one-half the employee's regular base rate of PaY• 15 ARTICLE 19 - LC~IGEVITY PAY Eli ible employees shall reoeiv+e a longevity payment of one (1) Per cent after 5 the aanpletion of five years of ooritanuo~as service. E~loY'eP-s shall receive a lcrygevity payment of two (2) per gent after the c~rpletioa~ of ten years of aantinuous sexviee. Employees shall receive a loa~gevity payment of three (3) Per cent after the czatpletian of fifteen years. of ooaztinuous sezvic~;. Employees shall receive a longevity payment of four (4) per aPnt after the eo[npletion of twenty years of continuous service. Such payments shall be based upon the employee's regular base rate. ARTICLE 20 - ACTIIIG PAY Sectian 1• Any employee who is required by the Ernploypx' to accept the duties and responsibilities of a higher classification shall receive eanperLSatioa~ at one hundred ten pexr~ent (110) of the top. firefighter step.. Such compensation shall eommex~ce starting with the first hour of such assigr~nPnt. ARTICLE 21 - INS[JRA~CE ~J Sectian 1: Effective January 1, 1995 the Employer shall contribute up to a maximLml of three hundred thirty-five dollars ($335.00) per tmnth per employee for the calendar year 1995, including dependent coverage, towards an employee health. ins-urarice pr~nium offered by the Employer. Tt~e Rmployer c~ontributian caru~ot exceed 'the cost of irrlividual eavexage for Employees selecting individual oavexage. Sectian 2• The Employer shall prrnride the employee with teen life, accidental death and dism~nbermexit insurance in the amount of $20,000. Sectian 3: The Employer shall continue to provide liability insurance in an amount not less than $100,000 for each persaz aggregate and $300,000 genexal aggregate. Section 4: For calerxiar year 1995, the Eh~ployer shall eoaztribute up to a maxinnam of twenty-four. dollars ($24.00) per manth for individual covexage of the employee for dental insurance. 16 Section 5: All insurarx7e benefits mentioa~ed herein shall be elected by the DnPloY'eY'• Section 6: Insurance contributions can be reopened for calerydar year 1996.. ARTICLE 22 -SHIFT F~C,EiANGE Employees may e~ichange duty shifts or any part thereof only after approval by the Depar-trnent and/or Division. Head or:designated representatives, and daily if the Departrnetzt Head or his designated representative det.s that the exchange does not ~y interfere. with the normal operatioai of the Divisions. Requests for and res~anses to excharx~e of duty shifts .shall be in writing. ARTICLE 23 -TUITION REINIDtJRSENlE~1T Section 1: The Employer shall provide the benefits of the Richfield Flnployee Educational Program. ARTICLE 24 -TRANSFER AMID TRANSPORTATION BEIinTEEN FIRE STATIONS The transfer of employees between statioaLS shall be on duty time. Any employee. required bythe Employer-to be transferred from one fire station to another while oat duty shall be provided transportation by the Employer. If the IInployer is not able to prodide such transportation, the employee shall be eligible for mileage reimbursement as provided by the Employer in the same manner as other city employees are reiunbursed. ARTICLE 25 - CIATHING P~LLOG~E Clothing allowance will be up to a maxim~nn of $365 per year far 1995.. This allowance is for the replacement of uniforms thra~~gh nornial wear, The initial uniform clothing for a new employee shall be provided by the Employer (Adderdum A). The annual clothing allawarx~e may be used to purchase clothing items listed onl Addendum B. The Employer ehall replace clotlzisx3 items damaged while on duty upon approval of the Division Head. Clothing allowarx5e amounts can be reopened for calerxlar year 1996. 17 ARTICLE 26 - LLII~i AMID C~F~ H~2FA~CS Section 1: One and oa~e-half hours maybe utilized for lunch ar~d rest period during a duty shift. Sectian 2 • Employees may .have oa~e-ha]-f h~u' c~of fee break in the mr~rniryg and ane-half hour coffee break in the afte,Yn~oori during a duty shift,. workload permitting. ARTICLE 27 -STATION SUPPLIES Mattresses, mattress covers aryl owe Personalized blanket shall be furnished, maintained, and cleaned every three moaiths at the expense of the Employer. ARTICLE 28 -PHYSICAL FITNF~S The Employer shall provide opportunities for employees to engage in approved Physical tra;-n;*~ and exes~cise activities while an duty. ARTICLE 29 -SAVINGS CLAUSE n U This Agreement is subject to the laws of tt~e United States and the State of Miiu~esota. In the event any provision of this Agreement shall be held to be eantrary to law by a court of competent jurisdictian from wY~se final judgment or derx'ee ryo appeal .has-been taken within the time provided, .such provisian shall be voided. All other pravisiorLS shall continue in full force and effect. The voided. provision. shall be rnnegotiated at the request of either party.' Arty such Provision renegotiated shall be lettered, dated and signed by both parties and shall be subject to all provisions of this Agreement. ARTICLE 30 - NONDISC~'tIMINATION The Unian and the Employer agree that. the provisions of this Agre~nent shall be applied equally to all employees witYr~ut discx;mi*~tiom with re.~t to age, sex. marital status,-race, religian, national origin, political affi:liatian, or membership in the Unian. r~ L~ 18 ARTICLE. 31 - I~ AI~ID_ALOOI-~OL TESTING Sectian l: All present employees and all job applicants are subject to drug and alcohol testiryg in co~zjunctian with the provisions of Minnesota Statutes, Sections 181.950 - 181.957,. and the following provisions: a) An employee subject to the eollectiv+e ha~i,,; ~ agreement may be Ordered to ..submit to drug testing by the City Manager, a supervisor or an immediate superior. b) Circ~mtistarx~.s Under G~ich Testiryg Nlay Occur. Drug and alcohol testing may be requested and required: • For all job applicants who have reeeaved a conxlitianal offer of employment. • Without notice if the City has a reasonable suspician that a current employee: i. is tinder the influeryoe of drugs ar' alcohol while an duty; ii. is found to ~=rsonally possess illicit drugs or alaohol an duty;. iii. has sustained or caused another pezsan to sustain a persona]. injtary while an duty; iv. has caused a work related accident, with or without persanal injtaries, while operating or helping to operate n~xy, equipment or vehicles. Sectian 2: Testing Witt~aut Prior Notice. Testing without prior notice may be given to employees who have been te.~ted positive pursuant to Section 1 (above) and who have been referred by the Employer for chemical dependerycy treatment or evaluatian or who are participating or have Participated in a chemical. deperLdency program in the priar~ two years. Sectian 3 • Refusal to St~nit to Testirxr. If an employee refuses to submit to drug and alcohol testing carried out in oonjtmctian-with this policy, the employee may be subject to discipline including, but not limited to, dim. An employee. may request a hearing tinder a negotiated agreement if pernutted, or under the 19 Richfield Code, 310.47 Subd. 2. if a jab applicant refuses to submit to drug and alcohol testing carried out in conjunction with this policy, the jab applicant may not be hired. Seatian 4 First Failure to Pass Drug aril AlcoYx~l Testirya. An employee who . for .the first time has a positive test result an a oonfizming test will not be subject to discharge unless: a. .The City has given the employee an oppoar-tunity to participate in a dnig or alcohol counseling or rnhabilitation program, and b. The employee has refused to participate or has failed to sucx~,ssfully complete the program wi`thi-n a rea~oa'~able time. Sectian 5• Test Sample Collectian. Test sample collectian shall be done in a mariner which provides a high degree of security for the sample and freedan fran adulteratian. Administrative prnoedures and biologic testing of the sample shall be conducted to prevent the submissian of fraudulent tests. All screening tests shall make use of a split sample which. shall be used for a confirmatory test. Upan request, an 'employee shall be entitled to the preserx7e of a Union Representative before testiryg is administered. Sectian 6• Tvpe of Drug Testirxt. All samples which test positive an a. screexiiryg -test shall be confirmed by gas rhranato9raL~hY-mass ~~~'• subject to the Employer's right to substitute such. tests as caY~etent rPSear+ch might establish as even more reliable during the term of the collective bargaining agreemeizt. Sectian 7 • Legal Drug Use. Testing shall be c~or~ducted in a mariner to ensure that an employee's legal drug use does not affect test results. Sectian 8• Test Results - Confidentiality. Test results shall be treated with the same. confidentiality as other employee medical reeorrls. The test results shall not be reported outside the City organizatian. 20 Sectian 9 • Failure to Pass Drug and Alool'~ol Testir~. An employee who receives a positive test result, fails or refuses a confirmatory test and does not request in writing a confirmatory retest within five working ,days after notice of positive confirmatory test results, maybe subject to discipline irrluding, but not limited to, discharge subject to provisions in-this policy. Such an employee may regwest a hearing under a negotiated agree~~ent if permitted or under the Richfield Code, Sectian 310.47 Subd. 2. A job applicant who receives a positive test result, fails or refuses a confirn~atory test, does not request in writing a confirmatory retest within five wow' ~ days after notice of positive oo~~firmatory test results, may be refused employment and will be notified of the reasan for such refusal. Sectian 10: Payment for the Cost of Treatment. The cost of .treatment for employees diagnosed as chemically dependent under provisions of this Article or from any non-Article related voluntary participatian in r.~nical deper~derx.^y treatment, shall be paid to the extent such treatment is currently available through the IInployer-provided health insuraix:e coverage. Sectian 11: Completian of Rehabilitatian -Return to Assignment. Upon successful c~tpletian of rehabilitatian the employee shall be returned to their regular duty assignment. F~nployee reassignment during treatment shall be based an each individual's If follow-up care is pre,9cribed after treatment, this may be a conditian of emplo~m~nt. Once treatment and follow-up is arnpleted and provided no further incidents of positive ooazfinnatoYy tests occur, at the end of two years the records of treatment and positive drug test results shall be retired to a closed medical record, given to the employee. References of the incident shall be r~naved from the employee's perso~u~el file. Sectian 12: IJriian Observatian of Process. The Unian, upon request and subject to approval of the testing laboratory, will have the right to inspect and o~exve any aspect of the drug testiryg program with the exception of individual test 21 results. The Uruan may inspect individual test results if the relea.9e of this 'o~ is auti~rized by the employee involved. informat~. Sectian 13 Ricrhts of Ehmlovee or Job Applicant and Othex Augeal Riuhts. The City shall pay for the initial drug test anr3i, if necessary, oa~e eoaifirmatory test. ~., an employee or job applicant who receives a positive test result has the right to receive a anPY of the test arr1, within t-.hree working days of notice of the positive test result, to sul~nit informatian to the City to explain the result ar' may request in writing within five working days of notice a confirmatory retest of the original sample at the employee's or job applicant's own expense. Sectian 14• Waiver of Rights. This Article is in no way intended to su°sede or waive an gnployee's Federal or State constitutional rights. Section 15 • Ackt~owledcpnerit. a• EYnployees will be given a copy of this policy at the time of implementatian and will indicate an a form that they have seen and been given a copy of the policy. b. New employees will be given a copy of the policy at orientatian. c. Job applicants oonr3itionally offered a position will receive a copy of this policy before testing. d. IInployees will be provided test levels prior to testing, at implementatian, when any level changes, or upon requests. Section 16: Procedures. 1. The City of Richfield shall designate the licensed laboratory facility that shall eoryduct such tests. 2. This policy shall be distributed to each employee. Each Department shall retain a Dopy for employee review. 22 NOTICE OF DRUG OR ALOOHOL TEST RES[JLTS Et~LOYEE NAME: DATE RESULTS RECEIVED FROM TESTING CCNiPANY: CE~t AS APPROPRIATE: The result of your initial scxeeivrig test was negative. The result of your confirmatory test was negative. The result of your confirmatory test was positive. RIGHTS OF Ei~LOYEE C~2 JOB APPLICANP IF OOI~'I1~TC~tY TEST IS POSITIVE' 1. The employee or job applicant has the right to rest and receive fr~cn the employer a copy of the test result report. 2. Within three wow' ~ days after rntioe of a positive test rnrsult oar a confirmatory test, the employee or job applicant may. submit information to the employer, in addition to arty submitted prior to the giving of a urine sample, to explain the test result. 23 3. Within five days after notice of a positive confirmatory test, the • gnployee or job applicant may request a confirmatory re-test of the original sample at the gnployee's or job applicant's expense. Within three days after receiving the employee's or jab applicant's re-test request, the `employer shall notify .the testing agerry of the employee's or job applicant's request. The employee or job applicant may request a different testing agerxy licensed ~~' ~P~' 181. If the. canfixmatory re-test does not confirm the original positive test result, no adverse Pers~~ action based on the original confirmatozy test may be taken against the employee or Jab applicant. • I have received a copy of this completed document. SIGNID: DATID: 24 DR[JC AMID AIi00HOL TFSTII~IG POLICY I acJ~yowledge receipt of the Drug and Alcat~ol Testing Article as set forth in the collective bargaining amt. T have read the Article-and have been able to ask my Supervisor questions about arty part of the Article I do not understand. II~I,OYEE NAME: SIGNID: DATID: 25 ARTICLE 32 - ~~LETE AGREII~P AMID WAIVER OF BARGAI1vING the nations that resulted in th~.s The parties acl~~awledge that during nego Agreement, each had the unlimited right ar~d opportunity to make demands and Proposals w:i.th respect to any subject or matter not removed by law from the area of Collective bargai ni nor and. that the arxi agregtlPnts arrived at by the parties after the exe~ise of that right and opportunity as set forth in this Agr~nent. Therefore, t1~e ~l~x and the ihZian for the life of this Agreement each voluntarily waive the right and each agrees that the other shall not be obligated to bargain collectively with respect to any subject or matter not specifically referred to or oovex~ed in this Agreement even 'though such subject or matter may not have been within the knowledge or eoaztemplation of eitt~x or both of the parties at the time of negotiations or signing of this Agree~lt. ARTICLE 33 -SALARY SC~~DiJLE Section 1: The following is`the biweekly pay schedule for 1995 to be implet~~ent~ }~, the Employer an January 1, 1995: Normal progr essian Thrrn~h Grade Fl 1 2 3 4 5 5~,~~g After 6 mos. After 1 yr. After 2 yrs. After 3 yrs. $1,322.15 $1,373.93 51,511.33 $1,571.79 $1,634..65 Normal pro~g rnssian Through Grade F2 1. 2 3 4 5 Sig After 1 yr. $1,757.26 $1,798.12 Normal proa ressian TYLrrn igh GYade F3 1 2 3 4 5 Starting After 1 yr. $1,798.12 $1,879.85 26 -The following is the biweekly pay schedule for 1995 to be implemented by the Employer an Jtme 1, 1995: Normal Pnog-ressian Through CYade Fl 1 2 3 4 5 Starting After 6 mos. After l yr. After 2 yrs. After 3 yrs. $1,335.37 $1,387.67 $1,.526.44 51,587.51 $1,651.00 Normal Progression 'lgh GYade F2 1 2 3 4 5 Starting After 1 yr. $1,774.83 $1,816.10 Normal Frogressian Through GYade F3 1 2 3 4 5 Starting After 1 yr. $1,816.10 $1,898.65 GYade Assigmn ents Positian Classifications GYade Ave rage Hours/Week Firefighter F1 55.85 Fire Lieutenant. F2 55.85 Fire. Captain F3 55.85 Sectian 2: The salary schedule can be reopened far calendar year 1996. ARTICLE 34 - ITENS II~R70N5ISTE[~fr WITH AG~2EE{~NT Any and all prior agreements, resolutions, practices, policies , rules and regulations regarding terms andeonditions of employment to the extent ir~aorcLSistent .with-the provisions of this Agreement, are hereb y superseded, 27 ARTICLE 35 - TEE2N5 OF AQ~EE~]'P Section 1: This Agreet[tient shall be in full foreeand effect and all its provisions retroactive fran January 1, 1995 through Deoetnber 31, 1996. Sectian 2: This Agreement shall be automatically res~evaed fran year' to Yeas' thereafter unless either party shall .notify the other in writing on or before.June 1,.1995 for 1996 and on or before June 1, 1996 far 1997 that it desires to modify or terminate this A,greem~.nt. Should r~tiae to modify or terminate the Contract be served, the provisions of the current Cantract sYx~uld control regardless of tenninatian date until the parties ratify a new Ag1Zt. IN WITNESS THEREOF, the undersigned have caused this Agreement to be executed. this day. of Jur1e, 1995. FOR THE CITY. OF RICHFIELD ~1 FOR THE INTEEiNATIONAL ASSOCIATION OF FIREFIC~iTERS LOCAL NO. 1215 ` ,~/.SENT' 28 ADDEI~IDiJM A II~TITTAT, UtVIFnRK CLO'T'HING 1 Uniform. Cap 1 Winter Cap 3 Pair ZYnu~xs 3 Long Sleeve Shirts 3 Short Sleeve Shirts l Pair Service Shoes l Jacket (Winter) l Jacket (Spring) 6 Pair Socks 1 Belt 8 Shoulder Patches 1 Cap Badge 1 Shirt Badge l Jacket Badge 3 Blue T-Shirts 1 Work Jacket 1 Blank Tie 1 Gloves 29 ADDII~IDUM B UNIFY CLpI~iING LIST Uniform Cap -Winter Uniform Cap - Stum~ex' Baseball Cap Trousex's -winter arxi stunner Shirts - Leg sleeve Shirts - SYr~rt Sleeve service Shoes or Hoots (Black ) Jacket -Winter Jacket - Stu~r .Gloves Sorbs Belts Work Jackets (Denim) T-Shirts (Blue) .Sweat Shirts Cap Covers (Rai.n) Insulated Vest Jacket Lir~ex Ties (Black) AI~F~IDiJNi C SEVEI~I~ CALC[JLATIOd~T An example of sevexanoe calculation: Total Sick Leave Accutrnzlation divided by 3 = Maxim~mi possible severarx~e benefit base (up to a maxinnmi of 720 Y~aurs ) i.e. 1,300 hours divided by 3 =433.3 31 i~ CITY OF RICHFIELD, MINNESOTA Council Letter No. iss Agenda June 12, 1995 Issue Statement: First reading of updates to Section 310 of the City Code, the personnel section. Background: The personnel section of the City Code establishes a uniform and equitable system of personnel administration for City employees. Minor corrections and revisions were last made in 1991. Several areas of the ordinance are in need of updating because they have become obsolete and housekeeping changes are proposed. The major areas of change include: • Section 310.03, Subd. 28 permits apart-time position to be created with project (special) funding. (By adding this provision, the City can make full use of outside funding sources. Without adding this provision, the City stands to forfeit outside funding because the funding isn't sufficient to pay for afull-time employee.) • Section 310..07, Subd. 5 permits the City to conduct criminal history and driver's license background checks on candidates for employment.- (This provision complies with recent State law changes.) Section 310.33, Subd. 2(e) grants one more day of vacation, up to 21 days per year, beginning the twentieth year of employment. (This is a benefit granted to the male- dominated Police Supervisors bargaining unit in 1995. By granting it to General Services and Management employees, the benefit is applied uniformly and equitably to both male and female employees.) Section 310.37, Subd. 1 increases the personal leave accrual rate by 0.15 hours biweekly to 2.0 hours biweekly. (The male-dominated Local 49 Labor and Trades and Police Supervisors bargaining units were granted this benefit in 1995. By granting it to General Services and Management employees, the benefit is applied uniformly and equitably to both male and female employees.) Section 310.37, Subd. 1 increases the maximum personal leave accrual by 20 hours to 180 hours (The City Council granted this increased accrual maximum to the male- dominated Police Supervisors bargaining unit in 1994. By granting it to General Services and Management employees, the benefit is applied uniformly and equitably to both male and female employees.) J~~ • Section 310.41, Subd. 2(c) increases the time the manager may suspend an employee without pay from thirty. calendar days. to forty=five calendar days per occurrence. (Currently it is limited to thirty calendar days per calendar year. This isn't sufficient in that it doesn't allow for progressive discipline for instances of gross misconduct.) • Housekeeping corrections such as making the ordinance gender neutral and changing the term "permanent" employee to "regular" employee and changing "Personnel Manager" to "Human Resources Manager." Supplemental information is attached. Recommended Motion: Approve first reading of updates to Section 310 of the City Code and schedule the public hearing and second reading for June 26, 1995. Basis of Recommendation: 1. Changes are needed to maintain a uniform and equitable system of personnel administration. 2. Male-dominated bargaining groups were granted benefit increases comparable to the proposed changes. 3. Housekeeping changes make this section gender neutral and clarify provisions. Alternative Recommendation: 1. The Council may decide not to approve the first reading thereby preserving the existing inequities. 2. The Council may decide to schedule the first reading for another date. 3. The Council may decide to make changes other than the ones suggested. Discussion/Decision Mode: With the approval of the first reading scheduled for the June 12, 1995 agenda, the public hearing and second reading will be scheduled for June 26, 1995. Respectfully submitted, Jams ..Prosser City Hager JDP:ds I ~ -~. BILL NO. AN ORDINANCE AMENDING SECTION 310 OF THE RICHFIELD CITY CODE; RELATING TO PERSONNEL MATTERS; ADDING PROVISIONS REGARDING BACKGROUND INVESTIGATIONS; AMENDING VACATION AND PERSONAL LEAVE PROVISIONS; AND MAKING TECHNICAL AMENDMENTS THE CITY OF RICHFIELD DOES ORDAIN: Section 1. Section 310 of the ordinance Code of the City of Richfield is hereby amended by amending the heading thereof to read as follows: Section 3,10 -Administrative; perserx~el human resources Sec. 2. Subsection 310.01 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 1 thereof to read as follows: 310.01. General provisions. Subdivision 1. Purpose. It is the purpose of this section to establish a uniform and equitable system of persex~el human resources administration for city employees. Sec. 3. Subsection 310.01 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 2 thereof to read as follows: Subd. 2. Scope of rules. (a) Exempt positions. Unless otherwise specifically provided, the following offices and positions are exempt from the, application of this section:' elected officials; members of boards and commissions; the city manager; intermittent and seasonal employees, the city attorney and the health officer. Sec. 4. Subsection 310.01 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 4 thereof to read as follows: Subd. 4. Administration. The manager is authorized and directed to administer the .rules and regulations of this section. The manager may-issue administrative directives and instructions, not inconsistent with this section, as necessary to explain and clarify the provisions thereof and to facilitate their use.. The manager may appoint a del human resources manager and delegate to the pe~sertnel human resources manager the administration of this section and any other perse~el human resources functions which the manager is authorized to perform. Sec. 5. Subsection 310.03 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 2 thereof to read as follows: Subd. 2. "Benefits" means privileges granted to officers, employees, and their dependents, as part of a total compensation package, including but not limited to vacation leave, sislf erp sonal leave, holiday leave, military leave, or any and all insurance pay. Sec. 6. Subsection 310.03 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 7 thereof to read as follows: is-3 Subd. 7. "Continuous service" means the total amount of uninterrupted full-time ~ regular employment with the city, including any unpaid leaves of absence of less than 30 days duration. Continuous service begins the first day of full-time probationary employment if .the employee will be eligible for afull-time peed re ug_lar appointment upon satisfactory completion of the probationary period. Sec. 7. Subsection 310.03 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 16 thereof to read as follows: Subd. ~ 17. "Intermittent employee" means a person employed for less than 20 hours er less per week whose employment has no specific termination date. Sec. 8. Subsection 310.03 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 17 thereof to read as follows: Subd. ~ 18. "Managerial employee" means an employee as defined in subsection 310.21, subdivision 2. Sec. 9. Subsection 310.03 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 18 thereof to read as follows: Subd. ~8 19. "Original appointment" means the initial entry into probationary status in the city service. Sec. 10. Subsection 310.03 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 19 thereof to read as follows: Subd. -1=120. "Outside employment" means employment of any kind engaged in by a city employee for which compensation is received from a source other than the city. Sec. 11. Subsection 310.03 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 20 thereof to read as follows: Subd. 29 21. "Part-time employee" means an employee who is scheduled to work on a regular and recurring schedule of at least forty and less than eighty hours in a bi-weekly payroll period. Sec. 12. Subsection 310.03 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 21 thereof to read as follows: Subd. ~ 22. "Part-time perk regular employee" means an employee scheduled to work l~wee~ at least forty and sevent3=-tee less than eighty hours per bi-weekly pay period, on a regularly scheduled basis throughout the year. Part-time penent reg lar employees have no specified end of employment date and are eligible for selected prorated city benefits, including vacation leave, sislE erp sonal leave and holiday leave. Sec. 13. Subsection 310.03 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 22 thereof to read as follows: Subd. ~ 23. "Pay plan" or "compensation plan" means a schedule of pay grades in bi- weekly rates for all position classes within the city service. Sec. 14. Subsection 310.03 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 23 thereof to read as follows: 2 IS-~ Subd. 23 31. "~ Regular employee" means afull-time employee or a part-time employee who works a minimum of forty hours per bi-weekly payroll period on a regular basis. throughout the year and who has completed a designated probationary period. The term "pew re lar" shall not be used to define duration of employment with the city, nor is it meant to convey to the employee any rights or implication of tenured employment. Sec. 15. Subsection 310.03 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 24 thereof to read as follows: Subd. 24 16. "1?erse~el Human resources manager" means a person appointed by the manager and charged with the administration of this section. The human resources manager shall perform the functions of the personnel manager. Sec. 16. Subsection 310.03 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 25 thereof to read as follows: Subd. ~ 24. "Position" means a group of duties and responsibilities assigned or delegated by competent authority and requiring the employment of one person. Sec. 17. Subsection 310.03 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 26 thereof to read as follows: Subd. ~ ~. "Probationary employee" means an employee who has not completed a designated probationary period for the currently occupied position ,whether it is an original appointment or one obtained by promotion or transfer. During the probationary period an employee maybe separated from that position without appeal. Sec. 18. Subsection 310.03 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 27 thereof to read as follows: Subd. ~ 26. "Probationary period" means a trial period, obtained by original appointment, by promotion, or by transfer, which is considered as an integral part of the selection process, during which an employee is required to demonstrate 1}is fitness for the position prior to receiving a paer~ regular appointment. Sec. 19. Subsection 310.03 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 28 thereof to read as follows: Subd. 28 27. "Project (special funded) employee" means a fidl~e full-time or part-time employee whose duties are directly related to the operation of a specific program or project and whose compensation is specifically allocated from designated non-general revenue funds, such as, but not limited to, grants or special assessments. With respect to group insurance, holidays, vacation leave and personal leave/short-term disability benefits only, such employees shall be treated as peient reg_ lar employees working a similar number of hours. Sec. 20. Subsection 310.03 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 29 thereof to read as follows: Subd. ~9 28. "Promotion" means movement of an employee from a position in one class to a position in another class having a higher maximum salary rate. Sec. 21. Subsection 310.03 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 30 thereof to read as follows: I S ~~ Subd. 39 29. "Provisional appointment" means an appointment made for ~a limited period of time in a class for which examinations are ordinarily given and for which appropriate employment lists are not currently available. Sec. 22. Subsection 310.03 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 31 thereof to read as follows: Subd. ~ 30. "Reallocation" means a reassignment or change in allocation of a position by raising it to a higher class, reducing it to a lower class, or moving it to another class at the same level, on the basis of significant changes in the nature, difficulty, or responsibility of the work performed in such position. Sec. 23. Subsection 310.03 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 33 thereof to read as follows: Subd. 33. "Restoration" means the return of a promoted probationary employee to leis the employee's former position either during or at the completion of l~ the employ promotional probationary period. Sec. 24. Subsection 31U.03 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 36 thereof to read as follows: Subd. 36. "Shift employee" means an employee who occupies a ~t regular full- time position which requires work on a regular schedule at any period during the 24 hours of a day and' on any day during the week. Sec. 25. Subsection 310.07 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 3 thereof to read as follows: Subd. 3. Vacancies. Application to compete for a position vacancy must be filed in the manner prescribed by the city manager. Vacancies for ~t r~ular positions will be posted for at least five working days. Sec. 26. Subsection 310.07 of the ordinance Code of the City of Richfield is hereby amended by adding subdivision 5 thereof to read as follows: Subd. 5. Background Investigations. Upon the request of the manager or designee, the Public Safety Department must obtain and provide background information about certain employment, volunteer or independent contractor candidates, such as: (a) status and history of drivers' licenses for candidates who may be responsible for operating city vehicles or receiving city reimbursement for operating their own vehicles, (b) background check and criminal history check through fmgerprints to determine whether a candidate who may have substantial contact with juveniles is the subject of any reported conviction of Child Protection Background Check Act crimes, (c) criminal history background data check for candidates who would be required to perform the task of entering private property on a regular basis, (d) thorough background screening, investigation, state and national arrest and fugitive record checks, and state and national III record checks by fmgerprints from candidates who would have access to operate, program, effectuate access to a National Crime Information Center (NCIC) terminal or initiate transmission of NCIC information. 4 !~ Sec. 27. Subsection 310.09 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 4 thereof to read as follows: , Subd. 4. Demotion. The manager may demote an employee who becomes physically or mentally .incapacitated or for any other reason cannot perform the .duties and responsibilities of the currently occupied position , or who wishes to be demoted for other personal reasons. The demotion may be to a position in a lower class if the employee is qualified to perform the duties of such position. -Sec. 28. Subsection 310.09 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 5 thereof to read as follows: Subd. 5. Promotion. Whenever reasonably possible, the manager may fill vacancies in the municipal service by promotion. of petanar~ent rg ugular employees. Notice of vacancies shall be posted for at least five days at locations where employees may become aware er of promotional opportunities. Where candidates for promotion are equally qualified, the manager shall give consideration to the candidates' length of service. Sec. 29. Subsection 310.15 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 1 thereof to read as follows: 310.15. Probationary periods. Subdivision 1. General rule. All original, promotional and transfer appointments in the municipal service shall be subject to the serving of aprobationary period. The probationary period shall be regarded as an integral part of the examination process and shall be utilized for observing the employee's work, for assisting in the adjustment of the employee to ltis the position and for rejecting. any employee whose performance does not meet the required performance standards. Sec. 30. Subsection 310.15 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 4 thereof to read as follows: ~ . Subd. 4. Status during promotional and transfer probationary period. During a promotional or transfer probationary period, a promoted or transferred probationary employee shall retain status as a ~t r~ employee and may be restored to the employee's former or a similar position if performance is unsatisfactory in the new position or-the employee requests to be restored to a former or a similar position and such vacancy exists. This may be done either during or at the completion of the promotional or transfer probationary period. After a ~ regular appointment is received in a new position, the promoted or transferred employee loses all rights to the former position.. If an employee is restored to a former or a similar position because of unsatisfactory performance, the employee shall be provided with the reasons for the action and shall have the right to appeal in accordance with section 310.47. Sec. 31. Subsection 310.15 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 5 thereof to read as follows: Subd. 5. Conditions of ~t re~lar appointment. An originally appointed, promoted or transferred. employee will receive a ~ regular appointment to a new position upon the successful completion of the probationary period, the favorable written recommendation of the department head, and the approval of the manager. Sec. 32. Subsection 310.17 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 4 thereof to read as follows: ~'~ Subd. 4. Deductions. The city shall make deductions from employees' pay as required by law. In addition, any employee may designate additional pia deductions frees for any purposes authorized by the city. Sec. 33. Subsection 310.19 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 4 thereof to read as follows: Subd. 4. Requirements for pay increases. For an employee to become .eligible for an increase in pay, the department head shall file a written statement with the manager at least twenty days .prior to the increase date stating an opinion as to the manner in which the employee has performed assigned duties since the original appointment or last increase in pay and a recommendation as to whether the employee should be granted or denied an increase in pay. If the employee's work has been properly and diligently performed, has been satisfactory in light of the length of service in the position and has shown the improvement normally to be expected with increasing periods of service and other factors considered relevant to employment, the department head shall recommend that the employee, be granted the next regular increase in pay. If, in the judgment of the department head, the employee's. work has been below the standards that .are expected, he the department head shall. recommend that no increase be granted. The manager shall authorize or deny pay increases for municipal employees as recommended by department heads, unless in the manager's. opinion and based on supporting information, the recommendation is unsound. In those cases where a department head recommends that an employee be denied an increase in pay, the department head shall notify the employee in writing of the recommended action, including the reasons therefor, at the same time the manager is notified. Sec. 34. Subsection 310.19 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision. l3 thereof to read as follows: Subd. 13. Reporting pay. A pe~aneHt regular employee who reports for work at a regularly scheduled time on a regular work day and is sent. home by a supervisor because the work cannot be performed shall receive a minimum of two hours pay. Sec. 35. Subsection 310.19 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 14 thereof to read as follows: Subd. 14. Recall pay. A ~t reg lar employee who is recalled to work after the completion of a regular work day by a supervisor shall receive a minimum of two hours pay for each call. "Sec. 36. Subsection 31U.19 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 16 thereof to read as follows: Subd. 16. Longevity pay. (a) ~ Regular full-time employees hired before October 1, 1991 who have performed satisfactory continuous service for the required number of years shall be eligible to begin accruing longevity pay at the beginning of the payroll period in which the required number of years has been completed. Eligible employees shall receive a longevity payment of 1% based on current biweekly base salary upon completion of five years of full-time service and 2% based on current biweekly base salary upon completion of ten years of full-time service. Longevity increments shall be paid in addition to regular compensation and may be incorporated with regular pay checks. (Revised, Bill No. 1991-10) Sec. 37. Subsection 310,21 of the ordinance Code of the City of Richfield is hereby amended. by amending subdivision 2 thereof to read as follows: Subd. 2. Exempt employees. Employees classified as exempt under the provisions of the Fair Labor Standards Act shall not receive overtime compensation either in the form- of pay or time l~ -~' off, as .provided for herein for nonexempt employees. The city manager may, however, grant reasonable periods of time off to exempt employees when lie the ci , manager determines that such time off is warranted. Sec. 38. Subsecfion 310.23 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 1 thereof to read as follows: 310.23. Group insurance provisions. Subdivision 1. Eligibility. Group insurance for the purposes authorized in Minnesota Statutes, section 471.61 and under conditions therein set forth may be provided to p~ re_ fig filar full-time and pe~axent reeular probationary full-time employees of the city by resolution of the city council. Sec. 39. Subsection 310.23 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 2 thereof to read as follows: Subd. 2. Coverage. Effective dates for commencement and discontinuance of group insurance coverage for eligible employees shall be in accordance with the respective group insurance plan specifications. The city shall notify an employee upon termination of his eligibility to continue group insurance coverage in accordance with Minnesota Statutes, section 62A.17. Sec. 40. Subsection 310.25 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 1 thereof to read as follows: 310.25. Employee training. Subdivision 1. Responsibility for training. Each department and division head shall provide on the job orientation and training and be responsible for the continuing development of each employee in the department or division. The pe~se~el human resources manager shall assist department and division heads in carrying out these responsibilities and. in meeting any special training needs. Sec. 41. Subsection 310.25 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 2 thereof to read as follows: Subd. 2. Time for training. Training to improve the quality of an employee's work in the employee's present position may be considered city business and may be conducted before or after working hours. Training to prepare the employee for promotion shall be on the employee's own time unless, because of shortage of ~ staffing or other circumstances, it is in the city's interest to use work time. Sec. 42. Subsection 310.29 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 4 thereof to read as follows: Subd. 4. Lunch periods. City employees whose work day exceeds five consecutive hours shall be granted 30 minutes without pay for a lunch period. Scheduling lunch periods shall be at the discretion of the employer. Sec. 43. Subsection 310.29 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 5 thereof to read as follows: Subd. 5. Administration. The specific arrangement and adjustment of the hours of the work week shall be the function of the department head and manager. Unless otherwise deli ng ated by the manager, rest and lunch periods shall not be scheduled to change the normally. scheduled hours of work. Sec. 44. Subsection 310.31. of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 2 thereof to read as follows: 7 ~_ I~ Subd. 2. Eligibility for paid holidays. ~ Regular employees and full-time probationary employees, except public safety personnel who are shift employees, are eligible for the paid holidays listed above. Employees must be on pay status the work day immediately preceding and the work day immediately following a holiday to be eligible for such holiday. Employees who are required to be on duty and are unable to observe a holiday will be permitted to take their allowed number of holiday hours of leave with pay within twelve months of the holiday worked. Sec. 45. Subsection 310.31 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 6 thereof to read as follows: Subd. 6. Holidays for shift employees. Employees engaged in shift work who are unable to observe a holiday will be permitted to take equivalent time off within twelve months of the designated holiday. ~ Regular and probationary ~t regular employees who are classified as 911 Dispatchers and who work on the following named holidays at the expressed authorization of the City Manager will be compensated at time and one half (1 1/2) of the employee's regular base. rate of pay for all hours worked in addition to the holiday leave granted: New Year's Day Labor Day Memorial Day Thanksgiving 4th of July Christmas (Amended, Bill No. 1990-14) Sec. 46. Subsection 310.31 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 7 thereof to read as follows: Subd. 7. ~ R. eeulas part-time employees. Holiday leave shall be accrued by ~ r~ part-time employees at the rate prescribed for ~t regular employees but prorated to the hours worked per week by the ~t regular part-time employees. Sec. 47. Subsection 310.33 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 1 thereof to read as follows: 310.33. Vacation leave. Subdivision 1. Eligibility. ~ Regular employees and full-time probationary employees shall be eligible for vacation leave upon accrual except that no employee be allowed vacation leave until after completion of six months of employment. Sec. 48. Subsection 310.33 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 2 thereof to read as follows: Subd. 2. Full-time employees. Full-time peed r~ and full-time probationary employees shall accrue vacation leave according to the following schedule: (a) from the beginning of continuous employment through the fifth year of continuous employment, each employee shall earn vacation at the rate of 3.70 hours per bi-weekly pay period (12 days per year); (b) from the beginning of the sixth year and through the tenth year of continuous employment, each employee shall earn vacation at the rate of 4.62 hours per bi-weekly pay period (15 days per year); (c) from the beginning of the eleventh year and through the fifteenth year of continuous employment, each employee shall earn vacation at the rate of 5.54 hours per bi-weekly pay period (18 days per year); /~ /c~ (d) from the beginning of the sixteenth year , and through the nineteenth year of continuous emplo meet, each employee shall earn vacation at the rate of 6.16 hours per bi-weekly pay period (20 days per year). (el from the beginning of the twentieth year of continuous employment. throuehout the duration of em~lovment each employee shall earn vacation at the rate of 6.47 hours ner biweekly ~av neriod~21 days ner yearl Sec. 49. Subsection 310.33 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 3 thereof to read as follows: Subd. 3. ~ Regt~ part-time employees. Vacation leave shall be accrued by ~t regular part-time employees for each twelve months of continuous and active city service at the rate prescribed for pe~a~e~ reg lar employees in proportion to the hours worked per week as measured against- the hours worked per week by a ~ reg lar full-time employee. A ~ reg lar part-time employee shall be eligible to accrue a proportional share of vacation leave as scheduled in this subsection, provided, however, that increases in vacation leave accrual rates shall be based on total hours worked and not on years of employment. For purposes of deter- mining increases in vacation accrual rates, 2,080 hours shall equal one year of employment. Sec. 50. Subsection 310.33 of the ordinance Code of the City .of Richfield is hereby amended by amending subdivision 5 thereof to read as follows: Subd. 5. Use of vacation. Vacation leave may be used as earned, provided that such leave shall be filed in the manner prescribed by the per-se~el human resources office and that the department head shall approve the time and duration of the leave to betaken. Sec. 51. Subsection 310.35 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 1 thereof to read as follows: 310.35. Sick leave. Subdivision 1. Eligibility and accrual. ~ Regular employees and full- time probationary employees, except as otherwise provided, are eligible to accrue and use sick leave. Sec. 52. Subsection 310.35 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 2 thereof to read as follows: Subd. 2. ~ Regular employees. Sick leave shall be accrued for all peer regular full-time employees and peed reg lar full-time probationary employees at the rate of 3.70 hours per biweekly pay period unti1960 hours of sick leave have been accumulated and then at the rate of .93 hours per biweekly pay period of service or major fraction thereof with no maximum accumulation. Sec. 53. Subsection 310.35 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 3 thereof to read as follows: Subd. 3. ~ Regular part-time employees. Sick leave shall be accrued for ~t regular part-time employees at the rate prescribed for peed regular full-time employees, but such accrual shall be in proportion to the hours worked per week by ~t regular full-time employees. Sec. 54. Subsection 310.35 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 5 thereof to read as follows: IS~ it Subd. 5. Usage. Sick leave shall not be considered as a vested right which an employee may use at 13is the employee's discretion, but shall be considered as a type of insurance which may be granted only for the following reasons: (a) physical incapacity incurred on or off duty; (b) personal illness, including medical or dental treatment for the employee or medical or dental treatment for the employee's spouse or children residing within the employee's household; (c) enforced quarantine of the employee in accordance with community health regulations; (d) serious illness or injury in the immediate family; immediate family means spouse, parents, children, siblings, grandparents, grandchildren, mother-in-law and father-in-law. Not more than twenty-four work hours of sick leave is permitted for any single occurrence; the term "occurrence" means all events which are related to any one illness or injury of,an eligible family member; (e) death in the. immediate family; leave for this purpose shall be charged against the employee's accrued sick leave where applicable. Sec. 55. Subsection 310.35 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 6 thereof to read as follows: Subd. 6. Application procedure. To be eligible for paid sick leave an employee must: (a) notify the employee's supervisor within one-half hour of the time set for the beginning of the employee's work day; (b) give the employee's supervisor an anticipated return date and notify l the supervisor as soon as possible if that date should change; and (c) submit, if required by the manager, a medical certificate from a licensed physician stating the nature of the illness or injury and whether the employee has been incapacitated for work for the period of absence. Sec. 56. Subsection 310.37 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 1 thereof to read as follows: 310.37. Personal leave. Subdivision 1. Eligibility and accrual. A managerial employee, aper-ma- n~ reg filar full-time or full-time probationary employee, and a ~t reuular €ull-time part- time or part-time probationary employee, classified and compensated under the compensation plan or general services pay plan, as those plans have been adopted and may be amended from time to time pursuant to subsection 310.17 of this code, is eligible to accrue and use personal leave. An eligible full-time employee, shall accrue -1-85 2_0 hours of personal leave biweekly and may accumulate such leave from year to year up to a maximum of ~8 180 hours of personal leave, unless written authorization extending this maximum is obtained from the department head and the city manager. Hours in excess of ~9 180 hours shall be forfeited by the employee without compensation. Eligible part-time employees shall accrue personal leave on a proportional basis of the full-time accrual based on hours worked per payroll period and shall be limited to maximum accruals and extensions authorized for full-time employees. Sec. 57. Subsection 310.37 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 3 thereof to read as follows: 10 /~-/~ Subd. 3. Conversion of sick leave benefit. Each employee who becomes eligible- for personal leave and who has accrued sick leave hours shall convert such sick leave hours into personal leave hours in accordance with the formula .developed and amended .from time to time by the city manager and set out in the city's pe~sei~el human resources policy. In the event that an employee ceases to be classified under the management or general services pay plan, but remains an employee of the city, that employee's personal leave shall. be converted back to the then applicable sick leave benefit in reverse application of the above-mentioned formula then in effect. Sec. 58. Subsection 310.37 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 4 thereof to read. as follows: Subd. 4. Usage and administration. An employee may use accrued personal leave for any reason, subject to the restrictions stated herein, but shall be required to use accrued personal leave for illness or injury necessitating absence from work, except that personal leave shall not be used if the employee is eligible for short-term disability or long-term disability benefits. Personal leave shall be scheduled and administered under direction of the department heads. In the event of illness or injury necessitating work absence; the .employee .requesting such leave shall notify ~ the employee's supervisor prior to the scheduled reporting time. Requests for personal leave for reasons other than illness or injury must be submitted to the supervisor a reasonable time in advance of the period of time for .which such leave is requested to enable the supervisor to arrange for normal continuance of the department functions, and in such cases, requested personal leave will not be unreasonably refused, but shall be subject to and coordinated with the administrative and managerial needs of the .city. Personal leave shall be chargeable only when used on regularly scheduled work days or work .periods. When a holiday occurs. during an employee's personal leave, and the employee is regularly entitled to time .off on the holiday with pay, such time will not be charged against the employee's personal leave. Sec. 59. Subsection 310.39 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 2 thereof to read as follows: Subd. 2. Leaves for military service. ~e City officers and employees are entitled to the benefits provided, in Minnesota Statutes, sections 192.26 and 192.261. Sec. 60. Subsection 310.39 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 4 thereof to read as follows: Subd. 4. Leave of absence without pay. Leaves of absence without pay for periods of up to 90 days may be granted at the discretion of the manager. The manager may extend such leaves to a maximum period of one year in cases of disability or where extraordinary circumstances in leis the manager's judgment warrant such an extension. Vacation or sick leave benefits do not accrue during a period of leave of absence without pay. Sec. 61. Subsection 310.41 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 2 thereof to read as follows: Subd. 2. Forms of discipline. Discipline may be in one or more of the forms specified in this subdivision: (a) oral reprimand. When an employee's performance warrants discipline, the appropriate supervisor shall inform the employee promptly and specifically of the deficiency. (b) written reprimand. In situations where an oral warning has not resulted in sufficient improvement :of the employee deficiency or where more severe initial action is warranted, a written reprimand shall be issued to the employee and a copy placed in the employee's personnel file. 11 ~'~.~/ (c) suspension without pay. In those cases where one or more written reprimands have not proven to be effective, or in those cases where the seriousness of the events or conditions warrant it, an employee may be suspended without pay by the city manager, for a period not to exceed ~~3` ~ a a ^~~°•-a°r •~°°~ forty-five calendar days per occurrence. (d) demotion and dismissal. When other forms of disciplinary action have been proved to be ineffective, or where the seriousness ofthe offense or condition warrants it, the city manager may demote or dismiss an employee for just cause. Sec. 62. Subsection 310.43 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 1 thereof to read as follows: 310.43. Terminations. Subdivision 1. Resignation. An employee wishing to leave the municipal service in good standing shall file with leis the employee's supervisor or department head, at least 14 days before leaving, a written resignation stating the effective date of the resignation and the reason for leaving. Failure to comply with this procedure may be considered cause for denying such employee future employment by the city and denying terminal vacation benefits. Unauthorized absence from work for a period of three working days may be considered by a departrnenthead as a resignation without benefits. Sec. 63. Subsection 310.47 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 1 thereof to read as follows: 310.47. Appeals and hearings. Subdivision 1. Procedure. An employee who has a grievance may follow the grievance procedure described in this subsection. All grievances must be filed within twenty-one calendar days after the occurrence of the grievance is deemed to exist. The employee must submit a grievance in the following sequence: (i) to the division head or other supervisor above the division head. if anv; (ii) to the department head; and (iii) to the manager. Sec.. 64. Subsection 310.47 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 2 thereof to read as follows: Subd. 2. Form of appeal. An appeal to a division head or other supervisor above the division head, if anv. may be either oral or in writing.. It shall be in writing if .either party so demands. A grievance presented in writing shall be answered in writing. Sec. 65. Subsection 310.47 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 4 thereof to read as follows: , Subd. 4. Decision time limits for appeals. The decision in an appeal shall be made as follows (except that failure to receive a decision shall entitle the employee to appeal at the next step): {a) First step.. The division head or other supervisor above the division head, if anv. shall render a written decision giving the reasons for the decision within seven .calendar days after receipt of the grievance. (b) Second step: If the grievance is not settled in step 1 and the employee desires to appeal, the grievance shall be presented in writing to the department head within seven calendar days after the division head's answer in the first step. The department head shall render a written decision giving the reasons for the decision within ten calendar days after receipt of the grievance. (c) Third step. If the grievance is not settled in step 2 and the employee desires to appeal, the - grievance shall be presented in writing to the city manager within seven calendar days after the department head's answer in the second step. The city manager shall render a written decision giving reasons for the decision within fifteen calendar days after receipt of the grievance. 12 ~ 5 -i~ (d) Waiver. If a grievance. is not presented within the time limits set forth above, it shall be considered "waived." If a grievance is not appealed to the next step within the specified time limit; it shall be considered settled on the basis of the employer's last answer. If the employer does not answer a grievance or an appeal thereof within the specified time limits, the employee may elect to treat the grievance as denied at the step and immediately appeal the grievance to the next step. The time limits in each step maybe extended by mutual written agreement. Sec. 66. Subsection 310.47 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision 5 thereof to read as follows: Subd. 5. Labor contracts. Ari employee who is a member of an appropriate bargaining unit as provided by Minnesota Statutes, chapter 179A, may not follow the grievance procedure set forth herein.. Instead, the employee may process the grievance according to the grievance procedure established in the employee's respective labor contract. Sec. 67. Subsection 310.49 of the ordinance Code of the City of Richfield is hereby amended by amending subdivision2 thereof to read as follows: Subd. 2. Type of incompatible activities. The following activities shall be considered inconsistent, incompatible or in conflict with city employment:, arry ~ employment activity or enterprise which;- (a) involves the use for private gain or advantage of the city's time, facilities, equipment or supplies, prestige or influence of a city office or employment; (b) involves the receipt or acceptance by the officer or employee of any money or other consideration from anyone other than the city from the performance of an act which the officer or employee would be required or expected to render in the regular course of leis city employment or as apart of lris the employee's duties as a city officer or employee; (c) involves the performance of an act in other than leis one's. capacity as a city officer or employee which may later be subject, directly or indirectly, to the control, inspection, review, audit or endorsement by such officer or employee or the employine department ; (d) involves so much of the employee's time that it his impairs the attendance or efficiency in the performance of 1}is the employee's duties as a city officer or employee:; or ~ involves conduct that undermines the .public's confidence in the Citv and adversely affects employees' morale. The manager shall make a fmal determination, when.necessary, as to whether a specific activity is incompatible. ' I3 ~~ CITY OF RICHFIELD, MINNESOTA Council Letter No. 157 Agenda June 12, 1995 Issue Statement: Public Hearing and second reading of an ordinance amending Section 925.09 and repealing Section 1320.11. of the Code of Ordinances regarding appeal procedures for certain code violations-.and bringing Section 925.09 into compliance with current State Statutes. Background: Over the years, Public Safety has been enforcing ordinances dealing with inoperable vehicles.. Generally, when Public Safety receives complaints on issues such as this, they: • Send a Community Services Officer to verify the complaint. • .Send a letter advising the person or business of the violation, requesting ,compliance within five days. • Do a follow=up after five days to -see if compliance has been. achieved. • If not, a second letter is sent, again requesting compliance within a designated time, depending on the type of violation. • Usually, these issues are resolved at this point. If they are not, a citation (ticket). is issued requiring a fine be paid or court appearance, and/or abatement. An appeal process is contained in the ordinance under Section 1320.01 that requires staff to inform the aggrieved of their right to appeal to, essentially, the City Council. It appears to staff that this is unnecessary, cumbersome and time consuming. It also puts the Council in a position of interpreting ordinances that they may have initiated. The Council, in most of these cases has relied on the City Attorney for their legal interpretation. Changing the ordinance, however, would still not .prohibit the Council, as individuals or as a body, from hearing complaints from citizens who believe staff is acting inappropriately. City ordinance Section 925.09 provides the mechanism for the abatement or removal of public nuisances and allows for the assessment of costs against the .property. Minnesota Statute, Section 145.23, which allows cities to do this was repealed and now the language is contained in Chapter 429 and other laws. Therefore, staff is recommending City ordinance Section 925.09 be amended to comply with State Statutes. I~I-I .The Council may recall that they amended another ordinance similar to this (Sections 320 and 400) recently. Staff has now discovered that these were omitted in that revision. First reading of the ordinance was approved by Council on May 8, 1995. Recommended Motion: Conduct the public hearing and second reading of an ordinance amending Section 925.09 and repealing Section 3120.11: Basis of Recommendation: 1. The ordinance in its current state is cumbersome and bureaucratic. Any aggrieved party can avail themselves (and have) to appeal in the informal sense to the supervisor, Department Director, City Manager and, of course, to the City Council 2. It is expensive, time consuming and inefficient for the Council to hold formal hearings on issues such as these, In-fact, it is probably much more cumbersome and confusing to the citizen. Generally, if the citizen has a concern or complaint, it can be dealt with quicker by an appropriate staff person. Alternative Recommendation: ~. Leave the ordinance(s) in place and. allow each aggrieved party the .opportunity to have a formal hearing before the Council. This has the potential of numerous hearings, expense and frustrations for everyone. 2. Provide-staff options that the Council has that staff may have overlooked... Discussion/Decision Mode: Conduct the public hearing and second reading of an ordinance amending Section 925.09 .and repealing Section 1320.11. Respectful submitted, Jams .Prosser City Manager JDP:ds ~~-a ..BILL NO. AN ORDINANCE AMENDING SECTION 925.09 AND REPEALING SECTION 1320.11 OF THE RICHFIELD CITY CODE; MODIFYING THE. NOTICE AND APPEAL PROCEDURES FOR CERTAIN CODE VIOLATIONS; CORRECTING OBSOLETE STATUTORY REFERENCES THE CITY OF RICHFIELD DOES ORDAIN: Sec. 6. Subsection 925.09 of the Richfield City Code is amended to read as follows: 925.09. Assessment of cost. The cost of abatement or removal of a public nuisance shall. be assessed against the property as provided in Minnesota Statutes, °°^*~^^ ~ ^ ~.'~ Chapter 429. as other law. Sec.- 7. Subsection 1320.11 of the Richfield City Code is repealed as follows: Passed by the City Council of the City of Richfield., Minnesota this 12th day of June, 1995. Martin J. Kirsch, Mayor ATTEST: Thomas P. Ferber, City Clerk /~ - CITY OF RICHFIELD, MINNESOTA Council Letter No. 156 Agenda June 12, 1.995 Issue Statement: Continuation of a public hearing. regarding proposed transfer of ownership of Paragon Cable to Time Warner, Inc. Background: On February 21, 1995 the Southwest Suburban Cable Commission (SWCC), of which. the. City of Richfield is a member; received a letter and Form -394 from Paragon Cable. Paragon Cable is the current franchisee of the cable system in the SWCC, including Richfield. The letter and Form .394 indicated that KBLCOM, Inc:, which is a wholly owned subsidiary of Houston Industries and which owns 100% of Nortel Cable Corporation and Countryside Investments, Inc.; which owns Paragon Cable, would become awholly-owned subsidiary of Time Warner, Inc. The Minnesota Cable Communications .Act and Article Xll, Section 1, Subsection B of the Cable .Franchise Ordinance for the City of Richfield states that a franchising authority such as Richfield which .receives a written request for approval of a sale or transfer shall answer in writing within thirty (30) days of a request and shall state whether it approves the request or whether it determines that a public hearing. is necessary because the sale or transfer may adversely affect the subscribers. The public hearing, if it is deemed necessary, must be conducted within thirty (30) days of such a determination and must provide a fourteen (14) day notice published once in the newspaper of general circulation in the area served by the franchise. The cable franchise ordinance for the City of Richfield also states that the City may inquire into the qualifications of the prospective controlling. party and the grantee shall assist the City in such an inquiry and pay all costs incurred by the City including staff time for so inquiring. Finally, the Federal Cable Communications Policy Act of 1984 and the Cable Television Consumer Protection and Competition Act of 1992 provide that: 1. A cable operator cannot transfer a cable system unless it has held the system at least 36 months; and 2. If a cable transfer or sale requires franchising authority approval, the franchising authority has 120 days from receipt of the. Form 394 to approve the sale. Therefore; since the City of Richfield, and the SWCC have received Form 394 from Paragon Cable, the 120 daytime period has begun. / ~ ~~ At the March 13, 1995 City Council meeting a resolution was adopted by the City Council which accomplished three things: 1. The City states that Paragon Cable was held by KBLCOM forat least 36 months; and 2. That the City must approve a sale or transfer the cable system and is currently reviewing Form 394 provided by Paragon Cable and Time Warner, Inc. to determine the affect of the proposed transfer on Richfield subscribers. Accordingly, a public hearing will be held on April 10, 1995 to allow for public comment and input on the proposed transfer; and 3. The City of Richfield acknowledges that it has the right to purchase the cable system pursuant to Article XII of the Cable Franchise Ordinance for the City of Richfield and is determining whether to exercise that right. A public hearing on the proposed transfer was opened on April 10, 1995. At that hearing members of the public were given the opportunity to comment on the proposed transfer. Also during the hearing, information was presented by legal counsel for the SWCC recommending that the hearing be continued to June 12, 1995. The continuation provides ample opportunity for the SWCC to complete their review and evaluation of the proposed transfer and to make a recommendation to each of the cities regarding this matter. The SWCC has now completed their review of the proposed transfer of ownership. More specifically, the SWCC evaluated the proposed transferee, Time Warner, Inc., with respect to its legal, technical and financial qualifications. The result of the evaluation is a recommendation that each of the member cities of the SWCC adopt the attached resolutions approving the proposed transfer of ownership and incorporating an acceptance agreement submitted by Time Warner, Inc. A representative from Paragon Cable and legal counsel to the Southwest Suburban Cable Commission will be present at the hearing. Recommended Motion.: 1. Conduct and close the public hearing regarding the proposed transfer of ownership of Paragon Cable. 2. At the conclusion of the public hearing, adopt the attached resolutions approving the transfer of control of KBL Cable Systems of the Southwest, Inc. dba Paragon Cable. Basis of Recommendation: 1. The City of Richfield and the SWCC have received appropriate notice from Paragon Cable and Time Warner, Inc. concerning a proposed transfer of ownership. That 1~3-~ notification, which includes the filing of Form 394, initiates a 120 day period in which to act on the request. 2. The City of Richfield, as the franchising authority, has the ability to conduct a public hearing to collect public input concerning the proposed transfer and provide an opportunity to investigate the impact of the transfer upon subscribers. 3. The City, through the SWCC, has evaluated the legal, technical and financial qualifications of the proposed transferee. 4. During the course of the evaluation, Time Warner, Inc. has agreed to an Acceptance Agreement which provides certain assurances to the City and the SWCC regarding the future operation of the franchise. 5. By approving the attached resolutions, the City of Richfield waves the right to purchase the cable system for this transfer; but preserves the right to purchase the system for any future sale or transfer. Alternative Recommendation: 1. The City Council could decide not to approve the proposed transfer of ownership based upon a finding of the City Council of an adverse impact upon subscribers or that the proposed transferee does not meet the legal, technical and financial qualifications necessary for the transfer. Discussion/Decision Mode: In order for the City of Richfield to act in a timely manner on this proposed transfer, it is necessary for the City of Richfield to conclude the public hearing on June 12, 1995 and to take action regarding the transfer. This would allow the request to be handled within the 120 day time period as established by federal law. Respectfully submitted, Ja es .Prosser City Hager JDP:ds Attachment / ~~dJ APPENDIX A /3-y STATE OF MINNESOTA CITY OF RICHFIELD RESOLUTION NO. APPROVING THE TRANSFER OF CONTROL OF KBL CABLESYSTEMS OF THE SOUTHWEST, INC. D/B/A PARAGON CABLE WHEREAS, on or about February 21, 1995, the Southwest Suburban Cable Commission of which the City of Richfield is a member, received a letter and Form 394 from KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable, the current franchisee of the cable system in Richfield, stating that Houston Industries Incorporated which wholly owns KBLCOM, Inc. which holds KBL Cable, Inc. which holds KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable, proposes to transfer control of KBLCOM, Inc. to Time Warner Inc. ("Time Warner"); and WHEREAS, the federal Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, states that: 1) a cable operator cannot transfer a cable system unless it has held the system at least thirty-six (36) months unless the transfer meets a stated exception; and 2) if a cable transfer or sale requires franchising authority approval, the franchising authority has 120 days from receipt of the Form 394 to approve the sale; and WHEREAS, the City of Richfield with the assistance of the Southwest Suburban Cable Commission has determined that the cable system was held for at least thirty-six (36) months; and WHEREAS, the federal Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992 allows the City to review the legal, technical and financial qualifications of the transferee; and WHEREAS, the Minnesota Cable Communications Act and Article XII, Section 1, Subsection B of the cable franchise ordinance for the City of Richfield state that a franchising authority- which receives a written request for approval of a sale or transfer shall answer in writing within thirty (30) days of the request and shall state whether it approves the request or whether it determines that a public hearing is necessary because the sale or transfer may adversely affect 'the subscribers; and -l- ~3~~ _ WHEREAS, the Minnesota Cable Communications Act and the cable franchise ordinance for the City of Richfield state that if a public hearing is deemed necessary, such hearing shall be conducted within thirty (30) days of such determination and notice of such a hearing shall be given fourteen (14) days before such hearing by publishing notice once in a newspaper of general circulation in the area served by the franchise; and WHEREAS, the City of Richfield passed. a Resolution on March 13, 1995 stating that it is examining the effect of the proposed transfer on its residents and a public hearing is necessary; and WHEREAS, the City of Richfield gave appropriate notice and held such a public hearing on April 10, 1995 and concluded such hearing on June 12, 1995 and received no express opposition to the transfer; and WHEREAS, Article XII, Section 1, Subsection G of the cable franchise ordinance for the City of Richfield states that the City of Richfield may inquire into the qualifications of the prospective controlling party, and the Grantee shall assist the City in such an inquiry and pay all costs incurred by the City. in so inquiring, including City staff time at a value determined by the City; and WHEREAS, Time Warner, KBLCOM, Inc. and the City disagree regarding the responsibility for reimbursement of consultant's fees for the review of the transfer of ownership; and WHEREAS, pursuant to Article XI of the cable franchise ordinance for the City of Richfield, the Minnesota Cable Communications Act and the federal Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, the City of Richfield has up to 120 days to exercise its right to purchase the system at the bona fide purchase price in the offer; and WHEREAS, the City of Richfield has examined its right to purchase the system; and WHEREAS, the Southwest Suburban Cable Commission has assisted the City in reviewing the legal, technical and financial qualifications of the prospective transferee as well as the franchisee's compliance with the current franchise, and has provided a recommendation regarding the approval of the proposed transfer of ownership; and WHEREAS, during the review of the legal, technical and financial qualifications of Time Warner and KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable's current compliance with the franchise ordinance, the Southwest Suburban Cable Commission noted that the City's Relief Ordinance No. 1991-15, will expire, at the City's option, with the proposed transfer or sale of the cable system; and WHEREAS, Time Warner has indicated that it does not believe that the transfer of control of KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable to Time Warner -2- /3-~ constitutes a transaction which will cause the Relief Ordinance to expire, at the City's option; and WHEREAS, representatives of Time Warner Inc. have represented to the Southwest Suburban Cable Commission that the transfer of control of the cable system will not change previous representations by representatives of KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable that upon negotiation of an acceptable early renewal they intend to upgrade the channel capacity: NOW, THEREFORE, the City of Richfield resolves as follows: 1. The City of Richfield acknowledges that it has the right to purchase the cable system pursuant to Article XI of the cable franchise ordinance for the City of Richfield. The City has examined this right and determined that exercise of the right to purchase, given the nature of the transaction (which does not change the local grantee and management), is not warranted. The City will waive this right for this transfer between Houston Industries Incorporated and Time Warner Inc. The City does not waive this right for any future transfer or sale. 2. The City, with the assistance of the Southwest Suburban Cable Commission, has reviewed the legal, technical and fmancial qualifications of Time Warner Inc. to control the franchisee which operates the cable system and has determined that Time Warner Inc. has the legal, technical and financial qualifications to operate the system. 3. The City, with the assistance of the Southwest Suburban Cable Commission, has reviewed the effect of the proposed transfer on its residents. Based upon the assertions of Time Warner Inc. that such a transfer will not affect the plans to upgrade the channel capacity upon negotiation of an acceptable early renewal, the City of Richfield has determined that the proposed transfer will not negatively impact its residents. 4. The City approves the transfer of control of KBLCOM, Inc. from Houston Industries Incorporated to Time Warner Inc. as set forth in the Stock Purchase Agreement, under the franchise, based upon Time Warner Inc.'s execution of the Acceptance Agreement which is attached hereto as Exhibit 1 within thirty (30) days of the adoption of this Resolution or within thirty (30) days after the closing of the transfer of control, whichever is later. 5. The City, with the assistance of the Southwest Suburban Cable Commission, has reviewed the Relief Ordinance and KBL Cablesystems -3- I ~y of the Southwest, Inc.. d/b/a Paragon Cable's Acceptance of Ordinance Relief Ordinance dated July 17, 1992 and determined that it has the option to terminate those documents as a result of this transfer. The City will extend the terms of that .Ordinance and Agreement until December 31, 1995. At .that time the City will have the right to exercise its right to terminate that Ordinance and Agreement and any action taken at that time will be retroactive to the date that this Resolution is entered. 6. The City grants the authority to the Southwest Suburban Cable Commission to evaluate .the City's legal rights to terminate the. relief agreement and the impact of termination of the Relief Ordinance including its applicability to discussion regarding an early renewal and a system upgrade to increase channel capacity. 7. The City grants. the Southwest Suburban Cable Commission the authority to enter into negotiations with KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable that .may lead to an early renewal of the franchise and an upgrade and/or rebuild of the cable system. 8`. KBLCOM, Inc. and KBL Cable, Inc. must execute a Reaffirmation of their Consent Agreement and Guaranty of Performance. which is attached hereto as Exhibit 2 within thirty (30) -days of the adoption of this Resolution or within thirty (30) days after the closing of the transfer of control, whichever is later. 9. KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable must execute a Reaffirmation of Acceptance of a Franchise for a Cable Television System which is attached hereto as Exhibit 3 within thirty (30) days of the adoption of this Resolution or within thirty (30) days after the closing of the transfer of control, whichever is later.. 10. The Southwest Suburban Cable Commission, the City, KBLCOM, Inc. and Tune Warner disagree regarding reimbursement of consultant's fees for the review of the transfer of control. The City accepts the settlement reached by the Southwest Suburban Cable Commission and KBLCOM, Inc. in which KBLCOM, Inc..will pay fifty (50) percent of -the consultant's fees and the Southwest Suburban Cable Commission will pay fifty (50) percent. BE IT FURTHER RESOLVED, that the City Clerk is directed to send a copy of this Resolution to KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable, Time Warner Inc., KBL Cable,. Inc. and KBLCOM, Inc. -4- ~ ~- ~ A motion to approve the foregoing Resolution No. ,was made by Council Member and duly seconded by Council Member T'he following Council Members voted in the affirmative: The following Council Members voted in the negative: Passed and adopted this ATTEST; day of 1995. Title: Title: Mayor Title: Clerk 420991 -5- ~~-~9 EXHIBIT 1 TIME WARNER INC. ACCEPTANCE OF CABLE TELEVISION FRANCHISE ORDINANCE AND CONDITIONS OF A TRANSFER OF CONTROL OF THE CABLE SYSTEM ("ACCEPTANCE AGREEME.~'T") THIS ACCEPTANCE AGREEMENT, is made by Time Warner Inc.- ("Time Warner"), on , 1995. Recitals: 1. On or about February 21, 1995,. the .Cities of the Southwest Suburban Cable Commission. ("SWSCC"), Eden Prairie, Edina, Hopkins, Minnetonka. and Richfield, received a letter and Form 394 from KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable, the current franchisee of the cable system, stating that Houston Industries Incorporated which wholly owns KBLCOM, Inc. which holds KBL Cable, Inc. which holds KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable, proposes to transfer control of KBLCOI~1, Inc. to Time Warner Inc. ("Time Warner"). 2. .Time Warner. has requested the City's approval of a transfer of control of the cable franchise, granted by the Ordinance. 3. The City intends to approve Time Warner's request for a transfer of control of the cable franchise, subject to Time Warner's acceptance of the conditions as set forth herein and the. Cable Television Franchise Ordinance and any amendments thereto. 4. The City, with the assistance of the Southwest Suburban Cable Commission, reviewed the Relief Ordinance which the City enacted on November 25, 1991 and KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable agreed to through the Acceptance of Ordinance No. 1991-15 which KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable signed on July 17, 1992. The City has stated that it has the option to terminate this Agreement and Ordinance as a result of this transfer of control. Time Warner has indicated that it does not believe that the City has the right to terrinate the Agreement and Ordinance because of this transfer of control. The City has stated that it will extend the time in which to exercise its right to terminate the Relief Ordinance until December 31, 1995, however,. any action taken at that time will be retroactive to the date that the City approved Resolution No. approving the transfer. _1_ 1 ~-~ 5. Time-Warner understands that the transfer of control of the franchise and the approval by the cities of the Southwest Suburban Cable Commission, is based on requirements under federal, state and local law. Those requirements have been fulfilled through review by the SWSCC and recommendations made by it to the cities based on information furnished to the SWSCC by Time-Warner and its representatives. Most of the information which was relied upon by the SWSCC was furnished pursuant to FCC Form 394. Acceptance: 1. Time Warner agrees that after the proposed transfer of control the franchise holder will continue to be bound by the Ordinance and to timely and fully perform all of the duties and obligations thereunder. 2. Time Warner agrees that after the proposed transfer of control the franchise holder will provide to the City and its subscribers all lawful services as required in the Cable Television Franchise Ordinance. 3. .Time Warner agrees that after the proposed transfer of control the franchise holder will be subject to the lawful regulatory authority of the City as set forth in the Ordinance as may be amended from time to time hereafter. 4. Time Warner agrees that after the proposed transfer of control the franchise holder will cooperate fully with the City and obtain from any governmental. agency all licenses, permits, and other authority necessary for lawful operation. and maintenance of its Cable Television System (the "System") under the Cable Television Franchise Ordinance. 5. -Time Warner has indicated that it does not believe that the City has the right to purchase the cable system pursuant to the language set forth in Article XI of the cable franchise ordinance. Time Warner acknowledges, however, that the City has stated that it will waive any right for this transaction between Houston Industries Incorporated and Time Warner. Time Warner acknowledges that the City has not waived that right for any future transfer or sale. 6. Time Warner represents and warrants as follows: a. The management, finances and operations of KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable will not negatively change as a result of the change in control of ownership. b. There will not be an adverse impact to subscribers because of the change in control of ownership. -2- /~3~11 c. The change in control of ownership will not alter, delay, or change plans, if any, to accomplish an upgrade of the cable television system capacity and to work with the SWSCC during 1995 to negotiate an early renewal. Time Warner is not bound to agree to an early renewal or agree to upgrade the system as a result of this representation. d. That after this transfer of control is completed KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable will be a corporation duly organized, validly existing,. and in good standing under the laws of the State of Minnesota and will have all rights and authority necessary to enter into and fully perform all of the .duties and obligations of the Grantee. e. That it has taken all action necessary to authorize the execution and delivery of this Acceptance Agreement and the full performance of all the duties and obligations of the franchise holder under the Ordinance. f. That after this transfer of control is completed, KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable will have the legal, technical, and financial ability to operate and maintain the System pursuant to the terms of the Ordinance. g. That this Acceptance Agreement is binding on Time Warner and the - Franchise Ordinance is binding on KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable, to the extent not inconsistent with State or Federal law. 7. Time Warner agrees that all representations, warranties, and agreements contained herein and in the Ordinance shall survive the execution of this Acceptance Agreement and shall be binding upon Time Warner's permitted successors and assigns. 8. Notwithstanding anything to the contrary, the City and Time Warner reserve all rights under federal, state, and local law. 9. This Acceptance Agreement shall be effective only upon the closing of the transaction referred to in Paragraph 1 of the Recitals transferring control of KBLCOh1, Inc. to Time Warner Inc. Time Warner Inc. By -3- ~3~~2~ STATE OF COUNTY OF ) ss. On this day of , 1995, before me, a notary public within and for County, appeared ,who stated that she/he was the of Time Warner Inc. and that she/he executed the foregoing. document as her/his free act and deed on behalf of said corporation. Notary Public 420991 -4- I~- ~~ EXHIBIT 2 KBLCOM, INC. AND KBL CABLE, INC. gEAFFII2IVIATION OF CONSENT AGREEMENT AND GUARANTY OF PERFORMANCE REGARDING THE CABLE TELEVISION FRANCHISE ORDINANCE AND CONDITIONS OF A TRANSFER OF CONTROL OF THE. CABLE. SYSTEM ("REAFFIRMATION OF CONSENT AND GUARANTY") THIS REAFFIRMATION OF CONSENT AND. GU~il2ANTY IS MADE BY KBLCOM, INC. AND KBL CABLE, INC. ON 1995. Recitals: 1. On or about February 21, 1995, the .Cities of the Southwest Suburban Cable 'Commission ("SWSCC"), Eden Prairie, Edina, Hopkins, Minnetonka and Richfield, received a letter and Form 394 from KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable, the current franchisee. of the cable system, stating that Houston Industries Incorporated which wholly owns KBLCOhI. Inc. which holds KBL Cable, Inc. which holds KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable, proposes to transfer control of KBLCOM. Inc. to Time Warner Inc. ("Time Warner"). 2. Time Warner has requested the City's approval of a transfer of control of the cable franchise which is granted by the Ordinance. 3. The City intends to approve Time Warner's request for a transfer of control- of the cable franchise, subject to Time. Warner's acceptance of the conditions set forth in its Acceptance Agreement and the Cable Television Franchise Ordinance- anal any amendments thereto. As part of its approval; the City requests that KBLCOM, Inc. and KBL Cable, Inc. provide a reaffirmation of .the Consent Agreement and Guaranty of Performance which they entered in 1988. 4. KBLCOM, Inc. and KBL Cable. Inc. understand that the City's approval of the transfer of control of the franchise is based on requirements under federal, state and local law. Those requirements have been fulfilled through review.. by the SWSCC and recommendations made by it to the City based on information furnished to the SWSCC by Time Warner and its representatives. Most of the information which was relied upon by the SWSCC was furnished pursuant to FCC Form 394. -1 i3-~~1 Acceptance: 1. KBLCOM, Inc. and KBL Cable, Inc. agree that after the proposed transfer of control, KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable will continue to be bound by the Ordinance and to timely. and fully perform all of the duties and obligations thereunder. 2. KBLCOTvI, Inc. and KBL Cable, Inc. agree that after the proposed transfer of control, KBL Cablesystems of the Southwest, -Inc. d/b/a Paragon Cable will provide to the City and its subscribers -all lawful services as required in the Cable Television Franchise Ordinance. 3. KBLCOM, Inc. and KBL Cable, Inc. agree that after the proposed transfer of control, KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable will be subject to the .lawful regulatory authority of the City as set forth in the Ordinance as may be amended. from time to time hereafter. 4. KBLCOM, Inc. and KBL Cable, Inc. agree that after the proposed transfer of control; KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable will cooperate fully with the City and obtain from any governmental agency all licenses,. permits, and other authority necessary for lawful operation and maintenance of its Cable Television System (the "System") under the Cable Television Franchise Ordinance. 5. KBLCOM, Inc. and KBL Cable, Inc. have indicated that they do not believe that the City has the right to purchase the cable system pursuant to the language set forth in Article XI of the- cable franchise ordinance. KBLCOM, Inc. and KBL Cable, Inc. acknowledge, however, that the City has stated that it has the right to purchase the cable system as set forth in Article XI of the cable franchise ordinance and the City will waive that right for this transfer between Houston. Industries Incorporated and Time Warner. KBLCOM, Inc. and KBL Cable, Inc. acknowledge that the City does not waive that right for any :future transfer or sale. 6. KBLCOM, Inc. and KBL Cable, Inc. represent and warrant as follows: a. The .management, finances, and operations of KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable will not negatively change as a result of the change in control of ownership. b. There will not. be an adverse impact to subscribers because of the change in control of ownership. -2 - %~ ° %~ c. The change in control of ownership .will not alter, delay, or change plans, if any, to accomplish an upgrade of the cable television system capacity and to work with the SWSCC during 1995 to negotiate an early renewal. KBLCOM, Inc. and KBL Cable, Inc. are-not bound to agree to an early renewal or agree to upgrade the system as a result of this representation. d. That after this transfer of control is completed KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable will continue to be a corporation duly. organized, validly existing, and in good standing under the laws of .the State of Minnesota and will .have all rights and authority necessary to enter into and fully perform all of the duties and obligations of the Grantee. e. That each has taken all action necessary to authorize the execution and delivery of this reaffirmation of Consent Agreement and Guaranty of Performance and the full .performance of all the duties and obligations of the franchise holder under the Ordinance. f. That after- this transfer of control is completed, KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable will continue to have the legal, technical, and financial ability to operate and maintain the .System pursuant to the terms of the Ordinance. g. That this reaffirmation of Consent Agreement and Guaranty of Performance is binding on KBLCOM, Inc. and KBL Cable, Inc. and the Franchise Ordinance is binding on KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable, to the extent not inconsistent with State or Federal law. 7. KBLCOM, Inc. and KBL Cable, Inc. agree that all representations, warranties, and agreements contained herein and in the Ordinance shall survive the execution of this reaffirmation of Consent Agreement and Guaranty of Performance and shall be binding upon their permitted successors and assigns. 8. Notwithstanding anything to the contrary, the City, KBLCOM, Inc. and KBL Cable, Inc. reserve all rights under federal, state, and local law. IN WITNESS WHEREOF, KBLCOM, -Inc. and KBL Cable, Inc. warrant that they reaffirm the Consent Agreement and Guaranty of Performance and guarantee all obligations imposed bythis franchise, that they agree to be jointly and severally liable to the franchising -3- 1~-~~ authority for actions, inactions, omissions, violations and failure of compliance as a result of the granting of, acceptance of, and continuation of this franchise. KBLCOM, INC. By Its STATE OF ) ss. COUNTY OF ) On this day of , 1995, before me, a notary public within and for County, appeared , 'who stated that she/he was the of KBLCOM, Inc. and that she/he executed the foregoing document as her/his free act and deed on behalf of said corporation. Notary Public KBL CABLE, INC. By STATE OF COUNTY OF ss. On this day of , 1995, before me, a notary public within and for County, appeared ,who stated that she/he was the of KBL Cable, Inc. and that she/he executed the foregoing document as her/his free act and deed on behalf of said corporation. Notary Public 420991 -4- ~~- / °~ EXHIBIT 3 KBL CABLESYSTEIVIS OF THE SOUTHWEST, INC. D/B/A PARAGON CABLE REA,h'FTRMATION OF ACCEPTANCE OF A FRANCHISE FOR A CABLE TELEVISION SYSTEM AND CONDITIONS OF A TRAl~'SFER OF CONTROL OF THE CABLE SYSTEM ("RE ~ ~ EtMATION OF ACCEPTANCE") THIS REAFFIRMATION OF ACCEPTANCE IS MADE BY KBL CABLESYSTEMS OF THE SOUTHWEST, INC. D/B/A PARAGOI~T CABLE ON , 1995. Recitals: 1. On or about February 21, 1995, the Cities of the Southwest Suburban Cable Commission ("SWSCC"), Eden Prairie, Edina, Hopkins, Minnetonka and Richfield, received a letter and Form 394 from KBL Cablesystems of the Southwest. Inc. d/b/a Paragon Cable, the current franchisee of the cable system, stating that Houston Industries Incorporated which wholly owns KBLCUI\1. Inc. which holds KBL Cable, Inc. which holds KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable, proposes to transfer control of KBLCOIVI. Inc. to Time Warner Inc. ("Time Warner"). 2. Time Warner has requested the City's approval of a transfer of control of the cable franchise which is granted by the Ordinance. 3. The City intends to approve Time Warner's request for a transfer of control of the cable franchise, subject to Time Warner's acceptance of the conditions set forth in its Acceptance Agreement and the Cable Television Franchise Ordinance and any amendments thereto. As part of its approval, the City requests that KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable provide a reaffirmation of the Acceptance of a Franchise for a Cable Television System it entered in 1988. 4. KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable understands that the City's approval of the transfer of control of the franchise is based on requirements under federal, state and local law. Those requirements have been fulfilled through review by the. SWSCC and recommendations made by it to the City based on information furnished to the SWSCC by Time Warner and its representatives. Most of the information which was relied upon by the SWSCC was furnished pursuant to FCC Form 394. -1- I ~ ~~ Acceptance: 1. KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable agrees that it will continue to be bound by the Ordinance and to timely and fully perform all of the duties and obligations thereunder. 2. KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable agrees that it will provide to the City and its subscribers all lawful services as required in the Cable Television Franchise Ordinance. KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable agrees that it will be subject to the lawful regulatory authority of the City as set forth in the Ordinance as may be amended from time to time hereafter. 4. KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable agrees that it will cooperate fully with the City and obtain from any governmental agency all licenses, permits, and other authority necessary for lawful operation and maintenance of its Cable Television System (the "System") under the Cable Television Franchise Ordinance. 5. KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable has indicated that it does not believe that the City has the right to purchase the cable system pursuant to the language set forth in Article XI of the cable franchise ordinance. KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable acknowledges, however, that the City has stated that it has the right to purchase the cable system as set forth in Article XI of the cable franchise ordinance and the City will waive that right for this transfer between Houston Industries Incorporated and Time Warner. KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable acknowledges that the City does not waive that right for any future transfer or sale. 6. KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable represents and warrants as follows: a. The management, finances, and operations of KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable will not negatively change as a result of the change in control of ownership. b. There will not be an adverse impact to subscribers because of the change in control of ownership. c. The change in control of ownership will not alter, delay, or change plans, if any, to accomplish an upgrade of the cable television system capacity and to work with the SWSCC during 1995 to negotiate an -2- I~3-l 9 early renewal. KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable is not bound to agree to an early renewal or agree to upgrade the system as a result of this representation. d. That after this transfer of control is completed it will continue to be a corporation duly .organized, validly. existing, and in good standing under the laws of the State of Minnesota and will have all rights and authority necessary to enter into and fully perform all of the duties and obligations of the Grantee. e. That it has taken all. action necessary to authorize the execution and delivery of this reaffirmation of Acceptance and the full performance of all the duties and obligations of the. franchise. holder under the Ordinance.. f. That after this transfer of control is completed, it-will continue to have the legal, technical, and fmancial ability to operate and maintain the .System pursuant to the terms of the Ordinance. g. That this reaffirmation of Acceptance and the Franchise Ordinance is binding on it, to the extent not inconsistent with State or Federal law. 7. KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable agrees that all representations, warranties, and agreements contained herein and in the Ordinance shall survive the execution of this reaffirmation of the Acceptance and shall be binding upon its permitted successors and assigns. 8. Notwithstanding anything to the contrary, the City and KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable reserve aIl rights under federal, state, and local law. IN WITNESS WHEREOF, KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable reaffirms its Acceptance of a Franchise for a Cable Television System and accepts all "obligations imposed by this franchise, that it is liable to the franchising authority for actions, inactions, omissions, violations and failure of compliance as a result of the granting of, acceptance of, and continuation of this franchise. -3- ~ ~ ~~ KBL CABLESYSTEMS OF THE SOUTHWEST, INC. D/B/A PARAGON CABLE. By Its STATE OF ss. COUNTY OF ) On this day of 1995, before me, a notary public within and .for County, appeared ,who. stated that. she/he was the of KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable and that she/he executed the foregoing document as her/his free act and deed on behalf of said corporation. Notary Public 420991 -4- /~~ l TRANSFER OF OWNERSHIP REPORT FOR THE SOUTHWEST SUBURBAN CABLE COMMISSION May 30, 1995 Prepared by: Adrian E. Herbst, Esq. John F. Wurm, Esq. Theresa M. Harris, Esq. Mary Kay Robertson, Legal Assistant John L. Nelson, Client Financial Services Manager FREDRIKSON & BYRON 1.100 International Centre 900 Second Avenue South Minneapolis, MN 55402 (612) 347-7000 The Members of the Southwest Suburban Cable Commission: Patricia Pidcock Glenn Smith Carl Jullie Ralph Campbell Jim Genellie Chuck Kritzler Mayor Karen Anderson Craig Dawson David Childs Don Priebe James Prosser Kenneth Rolland Steve Devich Geralyn Barone TABLE OF CONTENTS / ~ ~ ~, PAGE I. Executive Summary A. Introduction ........................................... 1 B. Summary of Report ...................................... 1 II. Overview of Transfer of Ownership A. Federal Cable Act and FCC Rules ........................... 3 1. Summary of the Federal Cable Act and FCC Rules ............... 3 2. Three-Year Holding Period .............................. 3 3. Form 394 .............. .. ........ ........... 4 4. Determining Whether to Approve or Disapprove ................. 4 B. State Requirements ....................................... 4 C. Franchise Agreements .................................... 5 1. Transfer .......................................... 5 2. Right of First Refusal ................................. 5 III. Current Franchise hi 7 A. se ............................. Compliance with. Current Franc B. Franchise Renewal ....................................... 8 C. Rate Regulation- ......................................... 8 9 D. Related Agreements ...................................... IV. Rev iew of Form 394 10 A. Structure of Transfer ................ .................... B. Legal, Technical, and Financial Qualifications ..................... 11 1. Legal Qualifications .................................. 11 2. Technical Qualifications ............................... 14 3. Financial Qualifications ............................... 15 s-sa9siaim2~ ~a~ ~~V. Conclusions A. Recommendations ....................................... 20 1. Current Franchise .............................. .... 20 2. Relief Ordinance .................................... 20 3. Legal Qualifications .................................. 20 4. Technical Qualifications ............................... 20 5. Financial Qualifications ............. ................ 21 B. Approval and Acceptance ........................... ..... 21 Index to Appendices Appendix A Draft Resolution and Acceptance Agreement Appendix B Minutes of the Operating Committee Meeting on April 6, 1995 Appendix C Summary of Southwest Suburban Cable Commission Franchise Documents and Events Appendix D Outline of Southwest Suburban Cable Commission Franchise Documents by City 5-3095/41(7727 ~~-a~ SECTION I - EXECUTNE SUMMARY 5-30.95/410727 Section I -Executive Summary A. INTRODUCTION ~~~~ The Cities of the Southwest Suburban .Cable Commission ("SWSCC").receive cable television service from KBL Cablesystems of the .Southwest, Inc._ d/b/a Paragon Cable ("Paragon"), the franchise holder of cable television franchises in the Cities of .Eden Prairie, Edina, Hopkins, Minnetonka and Richfield (collectively the. "Cities"; individually a "City"). Paragon is owned by KBL Cable, Inc., which is owned by KBLCOM, Incorporated ("KBLCOM"), which is owned by Houston Industries Incorporated ("HII"). HII proposes to transfer the .stock of KBLCOM to Time Warner Inc. ("Time Warner"). The franchises -will continue to be held by Paragon. We submit this Transfer of Ownership. Report to the SWSCC and the Cities to assist in the transfer process. The report includes a complete review. of the information provided in the .Form 394 and in response to individual information requests. The analysis and recommendations contained in this report will. assist the. Cities in deciding whether to waive their right of first refusal on the sale and whether to approve the proposed transfer of ownership. B. SL1~~Y OF REPORT Pursuant to the Cable Television Consumer Protection and Competition Act of 1992 (the "1992 Cable Act"); the Cities have- 120 days to approve or disapprove of the proposed transfer of control of Paragon. The Cities must evaluate the legal, technical and financial Qualifications of the transferee as well as the impact of the transfer on subscribers and current franchise obligations. According. to Minnesota law and the applicable franchise ordinances, the Cities have thirty (30) days in which to decide to approve the transfer or to determine that the transfer may adversely affect subscribers and that a public hearing is necessary..If a City decides to hold a public hearing, it must- do so within thirty (30) days of the decision to hold the hearing. Within thirty (30) days after the close of the public hearing, the City must decide whether to approve or disapprove of the proposed transfer. The Cities also have the option of exercising their respective rights to purchase the system. To .determine the legal, technical, and financial qualifications of the transferee, Time Warner; we reviewed the following documents: the respective franchise ordinances; Paragon's compliance with the current franchises; Paragon's franchise renewal process; the status of rate regulation; and the information provided in the Form 394. and in response to information requests. The information gathered regarding the current SWSCC franchises held by Paragon indicates that Paragon has complied or substantially complied with the franchises. The Cities, however, -- have not conducted a complete audit of Paragon's compliance with the respective franchises. We recommend that each .City require Time Warner to sign an Acceptance Agreement which 5-3(1-9j/41(Y727 Section I -Executive Summary / ~'~ states that the City has not waived its right to demand compliance with the current franchise if non-compliance is uncovered in the future. During the review of the SWSCC franchise documents, we noted that the Relief Ordinances adopted by the Cities in 1991 and accepted by Paragon will terminate, at the Cities' option, with this sale or transfer. Time Warner has indicated that it does -not believe that the transfer of control between Houston Industries Incorporated and itself triggers the automatic termination provision in the Relief Ordinance. We believe, however, that this transaction does trigger the termination provision. Because there are important issues which must be discussed before deciding whether to terminate the Relief Ordinances, we recommend that the Cities extend the duration of the Relief Ordinances until December 31, 1995. At that time, the Cities will determine whether to: (1) terminate those documents and return to the original terms of the franchise ordinance and proposal; (2) enter into different relief extension. agreements; or (3) allow the Relief Ordinances to continue. We have examined the legal., technical and financial qualifications of Time Warner. The information provided indicates that Time Warner has the legal qualifications to operate the cable system. We also believe that Time Warner has the technical qualifications to operate the system. The financial information provided indicates that Time Warner has the financial qualifications to operate the system. The Cities have indicated that they do not want to exercise the right of first refusal and purchase the respective cable systems. We recommend that the Cities waive this right regarding this transaction, but expressly reserve the right to exercise this right of first refusal in the event of future transfers. We further recommend that the Cities require Time Warner to sign an Acceptance Agreement which includes a guaranty of the performance of KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable. 5-30-95/410727 2 / ~~~~ 5-3495/410727 Section II -Overview of Transfer of Ownership ~~~ 0 A. FEDERAL CABLE ACT AND FCC RULES 1. SUNIlVIARY OF THE FEDERAL CABLE ACT AND FCC RULES In the 1992 Cable Act, Congress included a provision which regulates the transfer and sale of cable systems. 47 U.S.C. § 537. This provision states: (a) 3-YEAR HOLDING PERIOD REQUIRED. Except as provided in this section, no cable operator may sell or otherwise transfer ownership in a cable system within a 36-month period following either the acquisition or initial construction of such system by such operator. (e) LIMITATION ON DURATION OF FRANCHISING AUTHORITY POWER TO DISAPPROVE TRANSFERS. In the case of any sale or transfer of ownership of any cable system after the 36-month period following acquisition of such system, a franchising authority shall, if the franchise requires franchising authority approval of a sale or transfer, have 120 .days to act upon any request for approval of such sale or transfer that contains or is accompanied by such information as is required in accordance with Commission regulations and by the franchising authority. If the franchising authority fails to render a final decision on the request within 120 days, such request shall be deemed granted unless the requesting party and the franchising authority agree to an extension of time. In response to the. transfer provision contained in the 1992 Cable Act, the Federal Communications Commissions ("FCC") promulgated rules regarding transfers and/or sales of cable systems. Report and Order and Further Notice of Proposed Rule Making, MM Docket No. 92-264, FCC 93-332, released July 23, 1993; 47 C.F.R. §§ 76.502. 2. THREE-YEAR HOLDING PERIOD Pursuant to the 1992 Cable Act, a cable operator must hold the system for at least three years before it can transfer or sell it unless the sale meets one of the specific exceptions outlined in the 1992 Cable Act. The Cities granted a cable franchise to Minnesota Cablesystems- Southwest in January 1981. In May 1.982, the Cities of Eden Prairie, Edina, Hopkins, Minnetonka and Richfield entered into a Joint & Cooperative Agreement. In 1985, the Cities approved a transfer to Rogers Cablesystems, a Minnesota Limited Partnership. In June 1988, the Cities adopted a Resolution giving final approval to change the name of the. franchisee to Rogers Cablesystems of the Southwest, Inc. In December 1988, Rogers Cablesystems of the Southwest, Inc. was transferred to KBL Cable, Inc., with a guarantee by KBLCOM, Inc., and the name of the franchise holder 5-3 4-95 /4 1 072 7 Section II -Overview of Transfer of Ownership i 3 aq was changed to KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable. Accordingly, Paragon has held the franchise at least three years before attempting to transfer it. Pursuant to the FCC rules, the cable operator must certify to the local franchise authority that it has not violated the three-year holding requirement. 47 C.F.R. § 76.502 (d). Paragon provided this certification in a letter dated February 21, 1995 which stated that the system had been held for three years and the transfer of control also complied with one of the exceptions to the three- year holding requirement. The Cities had thirty (30) days to contest the accuracy of the certification. Pursuant to our conclusion that the certification was correct, the Cities declined to contest the certification. 3. FORM 394 Pursuant to the. FCC. rules, the proposed transferor and transferee must file a Form 394. 47 C.F.R. § 76.502(1). The FCC created this form to assist the franchising authorities in obtaining information regarding the proposed transfer and the legal, technical and financial qualifications of the transferee. The filing of the completed form, together with exhibits and any additional information required by the franchise agreement or state or local law, commences. the running of the 120-day time period for approval or disapproval of the proposed transfer. If the franchising authority does not act within 120 days, the request for transfer is automatically granted, unless the parties have agreed upon an extension of the 120-day deadline. Paragon filed its Form 394 on February 21, 1995 . 4. DETERMINING WHETHER TO APPROVE OR DISAPPROVE The 1992 Cable Act does not specify how the franchising authority must decide to approve or disapprove of the transfer. The FCC Report and Order regarding transfers states that the franchising authority should review the legal, technical and financial qualifications of the acquiring party. These are the same qualifications that the franchising authority reviews when granting a new franchise or renewing a franchise. B. STATE REQUIItEMENTS Under Minnesota law, a cable operator must make a written request to the franchising authority for its approval of a proposed sale or transfer. Minn. Stat. § 238.083 (Subd. 2). The franchising authority has thirty (30) days from receipt of the request to either approve of the transfer of ownership or to determine that a public hearing is necessary because the proposed transfer may adversely affect the company's subscribers. If the franchising authority decides to conduct a public hearing, it must be held within thirty (30) days of that determination. Within thirty (30) days after the conclusion of the public hearing, the franchising authority must decide 5-3!195/410727 4 Section II -Overview of Transfer of Ownership / ~ ~~~ whether to approve or disapprove of the transfer request. Minn. Stat. § 238.083 (Subd. 4). The franchising authority cannot unreasonably withhold approval. The Member Cities each passed resolutions stating that they were evaluating the impact of the proposed transfer on their subscribers and each City held a public hearing regarding the proposed transfer in April 1995. C. FRANCHISE AGREEMENT 1. TRANSFER The Cities' respective franchise ordinances contain language which minors Minnesota's statutory requirements. According to Article XII, Section 1, Paragraph G of their franchise ordinances, the Cities can inquire into the qualifications of the prospective controlling party. Moreover, the franchise ordinances state " ...Grantee shall assist City in any such inquiry and pay all costs incurred by City in so inquiring, including City staff time at a value determined by City." Article XII, Section 1, Paragraph H of the franchise ordinances also states that no transfer of sale or control can be approved without the transferee becoming a signator to the franchise. 2. RIGHT OF FIl2ST REFUSAL Article XI, Section 1, Paragraph A of the Cities' respective franchise ordinances contains language which states that the Cities -have a right of first refusal for any purchase: "If at any time Grantee receives a bona fide purchase offer for the System which Grantee is willing to accept, a complete copy of such offer shall promptly be given to City and City shall have the right to purchase the System according to the terms of the offer. " The Cities have six (6) months from their receipt of a bona fide purchase offer for the system to exercise their respective right to purchase the system. Each City is aware of the right to purchase. No City has indicated that it would like to purchase the system. Accordingly, we recommend that the Cities waive this right as it pertains to the proposed transfer between Houston Industries Incorporated and Time Warner. -The Transfer Resolution and Acceptance 5-30-95!410727 Section IT -Overview of Transfer of Ownership l3-~ l Agreement will contain language which states that 'the right to purchase is waived for this transaction only and does not affect any future offers. s-3a9siaimz~ 6 / ~~~~ s-sa9sia~o~z~ Section III -Current Franchise A. COMPLIANCE WITH CURRENT FRANCHISE /V v~ During -the transfer process, it is important that the Cities examine Paragon's compliance with the current franchise. If Paragon has failed. to comply with a provision of the current franchise and the Cities fail to object, Time Warner .may later claim that the Cities waived their right to compel compliance. ,Any question regarding compliance with a provision of the current franchise should be explicitly outlined in the transfer documents. When we reviewed the franchise, we noted that each City had enacted a Relief Ordinance between November and December of 1991 relieving Paragon from performing certain financial obligations and services which were outlined in the franchise ordinances. Paragon accepted the terms of the Relief Ordinances through acceptance documents signed on July 17, 1992. The Relief Ordinances and acceptance documents repealed earlier. relief ordinances entered between the cable franchisee and the Cities, and continued many of the agreements embodied within the earlier relief ordinances.. Generally, the relief ordinances temporarily relieved the cable operator from many of the financial obligations and service requirements which the cable operator contracted to provide in the franchise ordinances. The cable operators received substantial financial savings as a result of the implementation of the relief ordinances. The terms of the Relief Ordinances entered in 1991 expire, at the option of the Cities, upon the transfer or sale of the system.. We believe that this transaction between HII and Time Warner triggers this provision. Time Warner has indicated that it does not believe that a sale of this type causes the Relief Ordinances to expire. Key elements of the current Relief Ordinances are as follows: • Changes were made to the amount of funds which Paragon must commit to supporting community programming. • Paragon was relieved from providing a $300,000 performance .bond. • Paragon was allowed to hire fewer access and local origination full time employees. • The agreement limited the number of access channels and local origination channels which. Paragon must provide. • Paragon was relieved of providing all the access and local origination studios .referenced in the original franchise and proposal. • The amount of funds which Paragon must provide toward production equipment was reduced.. s-3a9s~aio~2~ 7 Section III -Current Franchise %3-3`~ • The construction policy for providing services to residential homes was modified. • Paragon was relieved from building an institutional network. We have reviewed the terms of the Relief Ordinances and determined that there are many complex issues which the Cities should consider before deciding whether to exercise their right to terminate the Ordinances or allow the Ordinances to continue. We recommend that the Cities extend the Relief Ordinances until December 31, 1995. This extension will .allow the Cities to carefully review their options and discuss the matter with Paragon officials. On December 31, 1995, the Cities will- have the option to: 1) terminate the Relief Ordinances;. 2) further extend the Relief Ordinances; or 3) enter into new relief extension agreements. As noted above, Time Warner does not believe that the termination clauses in the Relief Ordinances are affected by this transfer. We recommend that the Cities include all of this information in the Acceptance Agreement for Time Warner. When the Cities review this issue in December of 1995, the Cities and Time Warner can also address the issue of whether this transfer triggers the termination clauses. _ We have reviewed the remaining franchise provisions and have not found Paragon to be in non- - compliance with the franchise. To further protect the Cities during the transfer process, however, we recommend that the Cities include a statement in their acceptance documents which indicates that they do not waive any of the rights they are entitled to under the franchise and a statement from Time Warner acknowledging the Cities' statement. B. FRANCHISE RENEWAL Paragon's franchise expires in 1999. The Cities sought assurances that Paragon would offer franchise upgrades and rebuilds as part of the renewal process. At a meeting on April 6, 1995, Wayne Knighton indicated that Time Warner was willing to consider upgrades and rebuilds as part of the renewal process, but Time Warner would not commit to these conditions during the transfer process. C. RATE REGULATION There is one pending complaint with regard to Paragon's cable programming services tier (CPST) pricing. A complaint was filed by two (2) subscribers, Michele Cariveau and Terry Duffy on FCC Form 329 on October 5, 1993. On November 12, 1993, Paragon filed a motion to dismiss the Cariveau/Duffy complaint on the grounds that the FCC lacks original jurisdiction 5-30-95/410727 8 Section III -Current Franchise ~ ~~ ~~~ to decide the case. Other than that complaint, Paragon is in substantial compliance with all FCC rate regulation rules. D. RELATED AGREEMENTS There are no cable services related agreements between the Cities and Paragon. s-3a9sia~mz~ 9 /~93~ 5 3 0-95 /4 1 0727 Section N -Review of Form 394 f / ~~ A. STRUCTURE OF TRANSFER Thee proposed .transaction would transfer control of Paragon from HII to Time Warner. Paragon is currently owned by HII via multiple layers of subsidiary corporations as illustrated below: Houston Industries Incorporated iooq KBLCOM Incorporated ioo ~a KBL Cable; Inc. ioo~ KBL Cablesystems of the Southwest, Inc. d/b/a Paragon The proposed transfer of control of Paragon is structured as a merger of a subsidiary of Time Warner with. and into KBLCOM Incorporated. After the proposed merger, the ownership of Paragon will be as .illustrated below:. Time Warner Inc: ioo% KBLCOM Incorporated ioo~ KBL Cable; ;Inc. ioo~ KBL Cablesystems of the. Southwest, Inc. d/b/a Paragon 5-3095/410727 1 Section IV -Review of Form 394 l~°~~ B. LEGAL, TECHNICALLAND FINANCIAL QUALIFICATIONS Before approving a transfer of ownership, the Cities should review the legal, technical, and financial qualifications of the acquiring entity. 1. LEGAL QUALIFICATIONS To determine the legal qualifications of Time Warner, we reviewed the information provided with the Forms 394. During our examination of the legal .qualifications of Time Warner, we sought to answer the following questions: a. Whether Time- Warner has the necessary qualifications to obtain. any local, state or federal licenses which aze necessary to operate the cable system. b. The legal structure of Time Warner. c. Whether Time Warner has been involved in any civil or criminal proceedings. d. Whether Time Wazner has brought suit against or been sued by other franchising authorities. Section 1 of the Form 394 refers to the transferee's/assignee's legal qualifications.. According to the Form 394, Time Warner was incorporated as a Delawaze corporation in 1983. Exhibit IV of the Response to the Form 394 states that each of the KBLCOM Incorporated subsidiaries currently holding the franchises (e.g. Paragon) is and will remain qualified to transact business in their respective jurisdictions. According to Time Warner's response to the Form 394, Time Warner has not had an interest in or connection with an application which has been dismissed or denied by any franchising authority. Time Warner, however, provided the following information regarding two instances in which- applications by subsidiaries or affiliates of Time Warner for consent to transfer a franchise were denied: City of Austin, Texas. The City of Austin, Texas by resolution dated December 15, 1.994, denied an application for consent to transfer of a franchise from Time Warner Entertainment Company, L.P. to Time Warner Entertainment-Advance/Newhouse Partnership. The stated basis for this denial was an ongoing dispute between Time Warner Entertainment Company, L.P. and the city concerning whether- the franchise includes authorization for the provision over the cable system of services other than cable television service. The franchisee and the City of Austin are presently engaged in negotiations to resolve .this disagreement. 5-3t)-95/4117727 11 Section IV -Review of Form 394 I~ -~~ Citx of Wadsworth, Ohio. The City of Wadsworth, Ohio by resolution dated December. 1, 1992, denied an application for consent to transfer of a franchise from Warner Cable Communications Inc, to Time Warner Entertainment Company, L.P. Representatives of the city advised us that the reason for the denial was lack of time to examine the information submitted in response to the City's request for information regarding the transfer. (The terms of the franchise in Wadsworth require action on a transfer consent application within a set time period or it is deemed approved.) .The franchisee explicitly reserved the right to reapply for consent. We have contacted each of these franchising authorities to receive further information on their disputes with Time Warner's affiliates and were unable to obtain a response. Time Warner has indicated that it has not received an adverse finding or adverse final action as defined in question 5 of Section II of the Form 394. It also states that it does not have any outstanding documents which secure a loan or contractual performance as defined in question 7 of Section II of the Form 394. In response to a question regarding lawsuits by Time Warner against franchising authorities or by franchising authorities against Time Warner, Time Warner stated- that no such suits have. occurred. Time Warner identified the following suits regarding Time Warner affiliates: Kansas Cit}~ Cable Partners ~."KCCP"1 et al v. City of Kansas City. Kansas. On August 23, 1993 KCCP filed suit against Kansas City for declaratory judgment against the City regarding an alleged deficiency in KCCP's franchise fee payments. The City answered and counterclaimed, alleging that KCCP breached the franchise by underpayment of franchise fees. The City sought damages in an unspecified amount. KCCP served an answer to -the City's counterclaim denying that it owed additional franchise fee amounts. The Court granted the motion for summary judgment ruling that KCCP had complied with the provisions of the franchise agreement with respect to the. payment of franchise fees, and that KCCP has no liability to the City for unpaid franchise fees. The City did not appeal. Time Warner Entertainment Company L P ("TWE") v. Oranee County. Florida. TWE filed suit in the Unites States District Court for the Middle District of Florida, Orlando Division, against the. County. TWE sought an injunction prohibiting the city from imposing franchise fees in excess of the amount prescribed in the franchise by treating bad debt as revenue. The parties filed a Joint Stipulation of Dismissal with the Court on June 8, 1993. Warner Cable Communications a division of Time Warner Entertainment Company. L.P. Comcast Cablevision of San Bernadino Inc. Comcast Cablevision of Inland Valley Inc Booth American Company and Falcon Cablesvstems Comnanv vs. County of San Bernadino. The County of San Bernadino tried to impose a new s-3a9siaim2~ 12 Section IV -Review of Form 394 ~~ ~ ~® regulatory ordinance on plaintiffs. The plaintiffs refused to comply with the ordinance to the extent the ordinance was in conflict with their existing franchises and the County filed suit against plaintiffs seeking to revoke plaintiffs' franchises. Plaintiffs then filed suit in United- States District Court for the Central District of California claiming civil rights causes of action. The parties entered into a Settlement Agreement in March, 1993. We reviewed each of these incidents. We contacted the officials in Kansas City who stated that the dispute arose from a franchise fee audit conducted during a franchise renewal. The City stated that a portion of the dispute involved language which was specific to the franchise. The City also questioned the cable operator's policy of subtracting the cost of franchise fees from the gross revenues before calculating .the franchise fees. The City lost both of these issues on summary judgment. The issue regarding the language in the franchise was specific to Kansas City. The FCC is currently debating the issue of whether a cable operator can subtract franchise fees from gloss revenues before calculating the franchise fee. We contacted officials in Orange County, Florida. They indicated that the matter was settled when the County agreed to remove the language regarding bad debt from the franchise ordinance. _ We spoke with the cable coordinator for the. County of San Bernadino. He indicated that the entire dispute surrounded the interpretation of several cable franchises which were granted during the 1950s or 1960s for a fifty (50) year period of time. He said that the franchises provided for a two (2) percent franchise fee. The County of San Bernadino revised the franchise ordinances unilaterally and raised the franchise fees to five (5) percent for all cable operators. Time Warner Entertainment Company, L.P. objected to the unilateral action and stated that the County must deal with each franchise on an individual basis. The County brought a lawsuit but the progress of the lawsuit did not favor the County. Eventually, the County settled with the operators, but the settlement did not instruct the operators to adhere to the new franchise ordinance. This past year the Time Warner Entertainment Company, L.P. franchise was transferred to the new Time Warner joint venture with Newhouse Broadcasting Corporation and a subsidiary of Advance Publications Inc. As a part of that transfer, the County negotiated better terms for the franchise. The representative of San Bernadino spoke very favorably of Time Warner and its subsidiaries. We do not believe that the incidents outlined above indicate a lack of legal qualifications by Time Warner. We believe that these are isolated incidents which do not affect the legal qualifications of Time Warner to operate the cable systems for the Cities. Several members of the SWSCC indicated a concern regarding potential anti-trust issues and referenced the relationship of US WEST and Time Warner. At the Operating Committee meeting of April 6, 1995, Wayne Knighton responded to those concerns. Mr. Knighton stated that Paragon and Time Warner filed aHart-Scott-Rodino notification form with the Federal Trade Commission ("FTC") and the U.S. Department of Justice. By law, the FTC must raise 53(x-95!410727 13 Section IV -Review of Form 394 1 ~-~1 any anti-trust concerns within thirty (30) days of the filing. Paragon and Time Warner have not received any information from the FTC indicating that ananti-trust issue arose. At the Operating Committee meeting of April 6, 1995, Wayne Knighton stated that US WEST does not have an ownership interest in Time Warner. Time Warner subsidiaries are general partners of and own a 63 % interest in Time Warner Entertainment Company, L.P. ("TWE"). US WEST owns a 25% limited partnership interest and Itochu and Toshiba each own 6% in TWE. US WEST does not have an interest in Time Warner. Based on the information we have received, Time Warner is legally qualified to operate the Cities' respective cable systems. If our examination of the incidents outlined above causes us to conclude that those problems could affect the Cities, we will address that issue. 2. TECHNICAL QUALIFICATIONS To determine the technical qualifications of Time Warner, we reviewed the information provided with the Forms 394. In reviewing the technical qualifications, we normally look for information on the following factors: a. Does Time Warner have experienced, qualified technical and managerial staff, and sufficient personnel to run the operation? b. What is the level of technical expertise in Time Warner's other operations? c. Does Time Warner plan to change the operation of the system in a way that could affect service? d. Does Time Warner plan to accept the franchise "as it is", or is it going to ask for modifications? In Exhibit VII of the Form 394, Time Warner described its technical qualifications. The proposed transfer should have minimal impact on the franchisee's technical qualifications. Time Warner stated that TWE wholly and partially owns cable systems serving a total of approximately 7.2 million cable subscribers in 34 states. Through its affiliated companies, Time Warner is the second-largest multiple system cable operator in the United States. It owns or operates 22 of the top 100 U.S. cable systems, including Time Warner Cable of New York City, the largest cluster of cable systems in the country. Time Warner described the services currently available on its systems. It stated that it has an unsurpassed record of developing technology to expand the entertainment, information and communications options available on its cable system. It noted the significant achievements of its staff in areas of technical quality and innovation, including numerous awards. Time Warner has constructed a "full service network" in Orlando, Florida which would offer new interactive services, such as "video on demand" and computer based data communications which has received considerable media attention. In the information it provided, Time Warner also 5-30-95/410727 1 4 Section IV -Review of Form 394 /~ ~~~ highlighted its representatives' participation in the development of the National Cable Television Association's customer service standards. According to Time Warner's response in Exhibit VII and conferences with Wayne Knighton, Time Warner has no plans to change the rates or services currently received by the Cities. Time Warner has also indicated that it will not request changes or modifications to the terms of the franchises. The management or staff at the local level will .also remain the same. This is in contrast to many of the employees at Denver sales office and the San Antonio MIS offices, who will be terminated as part of the acquisition. The local system. manager (Wayne Knighton) will report to a designated officer at Time Warner. At the Operating Committee meeting on April 6, 1995, the Operating Committee asked Wayne Knighton whether Time Warner intended to scramble the basic channels on the SWSCC cable system which would require subscribers to use a cable box for each television receiving cable services. Mr. Knighton stated that Time Warner had not considered this plan for the SWSCC, but the company had considered this plan for other communities and has decided not to do it. At the April 6, 1995 meeting, Wayne Knighton indicated that he had spoken with Time Warner regarding upgrading the SWSCC cable system. He stated that Time Warner is receptive. At present, Paragon cannot add any services to the system because there is no additional channel capacity. Mr. Knighton stated that he will need Time Warner's approval to initiate the renewal process and discuss a rebuild. At this time, Time Warner would like to keep the transfer and the renewal/rebuild issues separate. 3. FINANCIAL QUALIFICATIONS To determine the .financial qualifications of Time Warner, we reviewed the information provided with the Form 394 and additional information submitted by the transferor. In reviewing the financial qualifications of transferees, we normally look for information on the following factors: a. All financing documents, particularly those which identify the type and amount of debt and the debt to equity ratio. b. The current and historical audited financial statements of the transferee. c. Filings with the Securities and Exchange Commission. d. Financial pro formal for the transferee and the system. What follows is a summary of the information gleaned from the various sources we have consulted. 5-3495/410727 15 Section IV -Review of Form 394 /3-~3 Form 394 Film and Accompanying Documents. Form 394 and. its accompanying documents outlines the nature of the agreement between Time Warner and HII. In general; Time Wazner is issuing 1 million shazes of common stock and 11 million shazes of preferred stock, and assuming or paying off up to an additional $1.2 billion of KBLCOM debt. Based on Disclosure Schedule 4.01(d)(ii) to the Agreement-and Plan of Merger, KBLCOM currently has about $765,000,000 of debt which will be technically in default as a result of the proposed transaction merger.. Time Warner will either need to pay off this debt or renegotiate with the lenders. The net effect of the proposed transaction will .require Time Warner to come up with $1.2 billion in cash or financing for the deal. This is approximately 50 % of the total value of the proposed merger. Merrill Lynch considers this 50% equity, 50% debt merger "financially sound" (see ''.Merrill Lynch Company Report" below).. Time. Warner's Form 10-K Filin Financial Information. We have reviewed Time Warner's Form 10-K for the year ended December 31, 1994, which was filed with the Securities and Exchange Commission. The Form 10-K includes financial statements and other financial information regarding Time Warner and TWE. This filing indicates that, at 12/3.1/94, Time Warner had total assets of $16.72 billion. Time Warner had total liabilities of $15.57 billion, of which approximately $8.84 billion was long- term debt. Total shareholder equity was approximately $1.15 billion. Time Warner :had a net loss of $91 million for the year ended 12/31/94. This compares to a net loss of $221 million for theyear ended 12/31!93. However, Time Warner did have a net increase of $82 million in cash and cash equivalents for the yeaz ending 12/31/94. The difference .between income and changes in cash is a result of: 1. certain items (such as depreciation, amortization, accrued expenses) reduce income but do not affect cash flow; and 2. certain items (such as capital expenditures and repayment of debt) affect cash flow but do not affect net income. In Time Warner's situation, the net affect of these items is that cash flow significantly exceeds income. A net loss is not necessarily cause for alarm. Time Warner's ability to depreciate. its capital _ assets at an accelerated rate results in a loss for accounting purposes. However, Time Warner's cash flow is more indicative of its ability to meet its current financial obligations, such as debt 5-30-9.5/410727 16 Section IV -Review of Form 394 13 -'~`~ repayment, capital expenditures, and dividends to its shareholders. For 1994 at least, Time Warner was able to meet all of its cash. obligations and still increase cash and cash equivalents by $82 million. Current financial information for the quarter ending March 31, 1995. indicates that Time Warner is improving its financial condition. The April 24; 1995 Cable Monitor reports that Time Warner's 1995 1st quarter loss of $47 million is $4 million less than the same quarter last year. The April 24, 1995 issue of Cable World indicates that for the same period; Time Warner's cash flow increased by 7%. Other Information. The Form 10-K indicates that Time Warner is attempting to enhance its financial position through sales. of non-.core assets, such as its stock in Turner Broadcasting System, Inc. The proceeds from- these sales of non-core assets will be used to reduce Time Warner's .debt. The one sale that has occurred so far is a sale of a 51 % interest in the Six Flag theme parks. As reported in the April. 18, 1995 New York Times, this sale should reduce debt by about $850 million. The Form 10-K also says that Time Warner "will explore the possibility of bringing its various interests in cable operations together in a separate, self-financed operating unit. This process is .expected to be undertaken over a 12-18 month period." This exploration is in its infancy, and there is no information available as to how- this consolidation will affect the finances of the cable portion of Time Warner's business (if the consolidation occurs at all). A recent article in Multi- Channel News indicated that Time Warner has no new information to report with regard to .the proposed restructuring. Dun & Bradstreet Information. The Dun & Bradstreet Credit Report does not give Time Warner a rating.. There. is no rating by Dun & Bradstreet because they do not have sufficient historical information from which they can make a rating. The lack of a rating does not reflect in any way on the financial soundness, or lack thereof, of Time Warner: Standard & Poors Corporate Description. Time Warner has several different debt issues that are rated by Standard & Poors. The total of this debt is approximately $9.5 billion. The majority of the debt issues are rated at BBB-. 'One issue is rated at BB+, and a few smaller issues are not rated. These are ratings as of 7/31/94. Debt rated BBB is generally regarded as having an adequate capacity to pay interest and repay principal. The minus sign simply. means that the debt's relative standing is lower within- the 5-30.95/410727 17 Section Iv -Review of Form 394 / ~ ~~ BBB category. In general, bonds rated BBB and higher are considered to be "Investment Grade", which means that they are generally suitable for investors needing a relatively safe investment. Merrill Lynch CompanYy Report The Merrill Lynch Company Report dated January 31, 1995 notes that, after Time Warner's pending cable acquisitions, it will have a total of 10 million cable subscribers. The Report states that "the proposed acquisition of Houston Industries' cable systems. appears financially sound, with nearly half being paid. with equity, and in line with recent industry transaction multiples." Paragon Financial Information. We have-been provided with financial information of all of the Minnesota cable systems operated by HII. This includes Paragon. Financial information broken down on a system by system basis is not .available. The projections cover a ten .year period from 1995 to 2004. These projections show a positive cash flow for each of the ten years. The projections also show a positive net income before interest and taxes for each of the ten years. This positive income ranges from $20.4 million in 1995 to $55.8 million in 2004. The projections also indicate that there will be significant amounts of capital expenditures. These expenditures include ongoing maintenance and improvements, expanding plant miles, connecting new subscribers and upgrading the system. The upgrade is projected to happen in the years 1996 to 1999. Annual capital expenditures range from $10 million to $20 million. Attached at the end of this Report is a list of the key assumptions used by Time Warner in making these projections. In general, revenue and expenses are tied to the rate of inflation, which is estimated at 3.5 % annually. Through a combination of increased passings and basic penetration, it is assumed- that basic subscriber growth increases approximately 4 % each. year. Tier penetration anal pay unit penetration is generally assumed to remain. where it is today. It does not appear that any of the assumptions used by Time Warner are unreasonable. The balance sheet does not show any debt within the Minnesota systems. It appears that all debt will be held at a higher level. In addition, it is likely that Time Warner will file a consolidated income tax return that would include the Minnesota systems. As a result, there will not be any interest or taxes directly owed by Paragon. Rather Paragon will be transferring cash to a parent company for payment of its share of taxes and. interest. The projections, show total- Minnesota system transfers to parent companies range from $19 million in 1995 to $72.4 million in 2004. Based on the projections provided to us, it appears that the Minnesota systems will have sufficient revenue to meet current expenditures and to make necessary capital expenditures. However, several caveats should be noted. First, these are just projections and actual results 5-3(~95/41(Y727 18 Section IV -Review of Form 394 1 ~ ~ `7" ~j may vary significantly. The projections show that Time Warner has considered the viability of purchasing this system and believes it makes economic sense; the projections do not guarantee future performance. Second, the transfers to the parent company are not fixed or guaranteed. Actual payments could be more or less than the projections. For example, if a parent company has poor financial results and needs additional cash, there is nothing to prevent that parent from taking additional cash from Paragon. This could hamper Paragon's ability to meet its current financial obligations and to make projected capital expenditures. This concern could be met through some type of guarantee of Paragon's performance from the parent companies. Finally, we do not have information specific to Paragon. Other Transfer of Ownership Reports. In addition to the above information, we have reviewed transfer of ownership reports from Garden Grove, California, and Mt. Hood, Oregon. In both reports, Time Warner is the transferee. Both reports concluded that Time Warner is financially qualified to assume ownership of the respective cable systems. The Mt. Hood report does note that it is Time Warner itself that has the financial wherewithal, not necessarily the actual local system. As a result, that report recommends a performance guarantee from Time, Warner. Rate Regulation. FCC rules provide two different mechanisms for setting cable television rates: the benchmark approach; and the cost of service approach. Currently, SWSCC Cities' rates are governed by the benchmark approach. Once rates are set using the benchmark approach, rates can be adjusted only to reflect inflation, changes. in programming costs, changes in retransmission consent fees, and changes in certain other costs directly affecting the cable programming. In general, the transfer of ownership should not have an impact on this benchmark process. The cost of service approach is used by cable operators if they feel that the benchmark approach does not allow them to recover costs of cable programming, plus a reasonable profit. With cost of service, cable operators include certain items, such as plant in service and certain intangible assets, in a "rate base" and then are allowed to earn a reasonable profit on that ratebase. Time Warner may eventually be eligible to use a cost of service approach to set cable rates, just as KBLCOM could switch to a cost of service approach. The FCC has ruled that after setting rates using either a benchmark or cost of service approach, a cable operator may not set rates using a cost of service approach for two years. This two year period would expire in July, 1996. FCC rules do not mention any exception to or modification of this rule for transfers of ownership. 5-30-95/410727 1 9 Section N -Review of Form 394 i~3-~-~ Concern has been expressed that Time Warner. may decide to use a cost of service approach to set cable rates and use its purchase price to justify higher rates. However, FCC rules have several mechanisms in place designed to prevent a cable operator from raising cable rates to recover an inflated purchase price for a system. For example, in valuing plant in service in the ratebase, FCC rules require original cost to be used. This is defined as the actual money cost of property at the time it was first used to provide cable service. This rule prevents a cable operator from buying a system and attaching a higher value to the plant in service to increase the ratebase. Secondly, a cable system may sell for a price greater than the value of its underlying assets. This excess is referred to as goodwill or going concern value. The FCC has said that this goodwill is presumptively disallowed in determining the ratebase in a cost of service approach. This prevents the cable operator from passing on this excess cost to subscribers of regulated cable services. 5-3095/410727 2 /?-~~' SECTION V -CONCLUSIONS s-3a9s~aio~z~ Section V -Conclusions ~3-49 A. RECOMMENDATIONS 1. CURRENT FRANCHISE We have reviewed the franchise. Paragon appears to be in compliance with the current franchise. We recommend, however, that the Cities prepare a transfer resolution and acceptance agreement which state that the Cities do not waive .their rights with regard to any non- compliance issues which may exist. 2. RELIEF ORDINANCES We reviewed the Relief Ordinances which Paragon and the SWSCC Cities entered in 1991. The SWSCC Cities have the right to terminate these Agreements and Ordinances at the transfer or sale of the system. We believe that this transaction triggers the termination clause in the relief documents. Time Warner. has indicated, however, that they do not believe that this transaction constitutes a sale or transfer of the system.. There are many factors which the Cities must consider before deciding whether to terminate these Agreements and Ordinances. We recommend that the Cities extend the time in which to exercise .their right to terminate the Relief Ordinances until December 31, 1995. On, December 31, 1995, the Cities would possess the right to terminate the Ordinances and Agreements. This recommendation will give the Cities adequate -time in which to consider their options and consult with Paragon's staff. If the Cities decide to execute the termination provisions of the Relief Ordinances, the Cities can then discuss the application of those provisions with Paragon. 3. LEGAL QUALIFICATIONS We have reviewed the legal information which Time Warner provided and which we obtained through other sources. Although Time Warner identified five (5) separate lawsuits regarding franchise matters, we believe that those lawsuits were isolated incidents and do not indicate a troubling pattern of behavior on the part of Time Warner. Based upon the information provided, we believe that Time Warner has the legal qualifications to operate the cable system for the Cities in the SWSCC. 4. TECHNICAL QUALIFICATIONS Time Warner has outlined its qualifications in the Form 394. They have also indicated that they intend to retain current Paragon staff.. Based upon the information provided by Time Warner in the Form 394 and the information which we obtained through other sources, we believe that Time Warner has the technical experience and ability to operate the cable system for the Cities of the SWSCC. 5-30.95/410727 21 Section V -Conclusions l~~'~© 5. FINANCIAL QUALIFICATIONS We have completed our review of the information provided in the Form 394 and information which we have obtained through other sources regarding the financial ability of Time Warner to operate the system. The information which we have reviewed to date indicates that Time Warner possesses the financial qualifications to operate the system. Also, financial projections of the Minnesota systems indicate that they as a whole should be able to meet their current financial obligations and have additional dollars available for capital improvements. However, we do not have any specific financial information regarding Paragon, or any other Time Warner entities besides Time Warner itself and all Minnesota systems as a whole. Time Warner has indicated that it would like KBLCOM to sign the performance guaranty for the system as it directly .owns the company which holds the franchise. However, we do not have any information relative to whether KBLCOM has the financial qualifications to make a performance guarantee by it meaningful. Also, with Time Warner indicating that it is considering placing its cable. business in a separate self-financed operating unit, there is no assurance that KBLCOM will continue to exist in its current form. Given the uncertainties involved in the projections, and in how Time Warner will in the future structure its cable operations, a guarantee by Time Warner itself of the performance of KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable and reaffirmations of previous guarantees and acceptance agreements by KBLCOM, Inc., KBL Cable, Inc. and KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable, would give SWSCC the most. protection and assurance that sufficient financial qualifications exist to operate the Paragon system. B. APPROVAL AND ACCEPTANCE Attached as Appendix A is a draft Resolution, a draft Acceptance Agreement for Time Warner, and draft. reaffirmations by KBLCOM, Ine., KBL Cable, Inc. and KBL Cablesystems of the Southwest,. Inc. d/b/a Paragon Cable. These documents are necessary to fully protect the Cities and reserve all-rights under the current franchise ordinances. s-sa9s~a~mz~ 22 ~~ CITY OF RICHFIELD, MINNESOTA Council Letter No. 155 Agenda June 12, 1995 Issue Statement: Request for a conditional use permit to allow Bixby's Bagel Company to operate a restaurant at 2906 West 66th Street (Southdale Square). Background: Bixby's Bagel Company proposes to lease the space in Southdale Square formerly occupied by Now Sports. Bixby's Bagels will offer take-out and sit-down food service as well as some,retail sale of coffee and bagel-related merchandise. The restaurant will provide seating for 50 people. Recommended Motion: The City Council approve the request fora conditional use permit for Bixby's Bagel Co., 2906 West 66th Street. Basis of Recommendation: 1. This type of business is appropriate for Southdale Square. There are no similar uses in the immediate market area and the customer use pattern would be heaviest before other businesses are open. 2. Adequate off-street parking. is available. 3. The Planning-Commission unanimously recommended approval at its May 23, 1995 meeting: Alternative Recommendation: The Council may deny the application based on adverse impact upon the neighbors or the City as a whole.. Discussion/Decision -Mode: A public hearing is scheduled for June 12, 1995. Notice of hearing was published in the Sun-Current and. mailed to property owners within 350 feet of the subject property. Respectful) submitted, James .Prosser City Manager. JDP:ds sew ~ ~ ~- . i i iC t... ' ~- ~. W ~ , L W F _ :~ C ~ _ t~ F-: . 'a ~: co . 1 . . • ; r ` ~ ~. A4 . / ~ -1 ~~ 'S 3f1N3Ad 1N3~MA 'S 3f1N3Ad S3Xa3X t= ~i / ~:'~~~~ , r - ~~ •~ ~ ~ e - T ~ J ~_ °- ; r~~i~~~~~'~ ~'~L~ ~ ~ ~.~ C -_. .~ ~~ yz~- t- ;~ .~.~ ~ , W Q a Q W J Q E-- O J W H H Z as v ..~ m~ W (n m QJQ ~ c W- ~~ ~Smvi Z ~ ~ = o~r° J ~- ~ N O ¢cy~ ~ ~~~~ // CITY OF RICHFIELD, MINNESOTA Council Letter No. 154 Agenda June 12, 4995 Issue Statement: Request for an amended conditional use permit to allow daycare of up to 60 children in Hennepin Technical College's Parent-Infant Education (PIE) program in .Lincoln Hills Center, 7440 Penn Avenue. Background: The Hennepin Technical College PIE program operates a day care center in the Lincoln Hills Center at 7440 Penn Avenue. The PIE program provides day care for school-age parents so they can complete their high school education. In 1990, the Council approved a conditional use permit to allow 25 children. into the PIE day care program. In 1992, the Council approved an amendment to the conditional use permit to allow an increase in enrollment to the current 40 children. The PIE program is now proposing to utilize additional classroom space to provide service for up to 60 children. Recommended Motion: The City Council approve the- request for an amendment to the, conditional use permit for the Parent-Infant Education program at 7440 Penn Avenue. Basis of Recommendation: 1. This .type of day care and support service is needed in the community and increased demand can be best met at this location. 2. Adequate on-site parking is available for staff. 3. Adequate drop-off and pick-up space is available. 4. Adequate play space is provided on the site. 5. The Planning Commission unanimously recommended approval at its April 25, 1995 meeting. Alternative Recommendation:. The Council may deny the application based on adverse impact upon the neighbors or the City as a whole. Discussion/Decision Mode: A public hearing is scheduled for June 12, 1995. Notice of hearing was published. in the Sun-Current and mailed to property owners within 350 feet of the subject property. Respe y submitted, Jam Prosser City. ager N W s z z W d uirniiiorrnr~ 7440 Penn Ave. South Parent-Infant Education -- Site Location N s f~ CITY OF RICHFIELD, MINNESOTA Council Letter No. is3 Agenda June 12, 1995 Issue Statement: Consideration of a request for a new 1995 non-intoxicating malt liquor license for Kinhdo Restaurant; Inc., 6345 Penn Avenue. Background: On January 20, 1995, the City received the new application and other. required documents for the non-intoxicating malt liquor license for Kinhdo Restaurant, Inc. -The applicant has paid the required license fee.. The Public Safety background investigation has been completed and reveals the following: • Mr. Quang T. Hoang has made application for anon-intoxicating malt liquor license under the name, Kinhdo Restaurant, Inc. Mr. Hoang is serving as the General Manager of the restaurant. Mr. Hoang has no known criminal record. On February 14, 1994, the City Council approved an increase in the number of non- intoxicating liquor licenses that could be licensed from 9 to 12. The increase in number does not affect this license. Kinhdo Restaurant has had a~license before. This is just a change of ownership. Recommended Motion: Approve the issuance of a new 1995 non-intoxicating malt liquor license for Kinhdo Restaurant, Inc., with the stipulation that the requirements are met in Resolution No. 7380. Basis for Recommendation: 1. The applicant has complied with all of the provisions of both City codes and State Statutes pertaining to anon-intoxicating malt liquor license: 2. Based upon the information supplied by the applicant and the investigation conducted, there appears to be no reason to deny the license requested. Alternative Recommendation: 1. The Council could decide to deny the request for anon-intoxicating malt liquor license. This would mean that Kinhdo Restaurant, Inc. would be unable to serve non-intoxicating malt liquor. lc~~f Discussion/Decision Mode:. The hearing to consider the request for the issuance of a new non-intoxicating malt liquor license for Kinhdo Restaurant, Inc. has been scheduled for June 12, 1995 and is being presented to Council at this time. Respectfully submitted, Jams .Prosser City Hager JDP:ds /~ CITY OF RICHFIELD RESOLUTION NO. 7380 RESOLUTION SPECIFYING CERTAIN IMPROPER CONDUCT OF ON-SALE INTOXICATING LIQUOR LICENSEES AND STATING RECOMMENDED DISCIPLINE THEREFOR BE IT RESOLVED by the City Council of the City of Richfield as follows: I. BACKGROUND STATEMENT The City of Richfield annually issues a number of licenses permitting the on-sale sale of intoxicating liquor within the City. The conduct of the licensed activity is governed by the provisions of Section 1200 of the City Code. Although, the provisions of that Section describe in a general way what is expected of licensees in the proper conduct of the licensed activity, the City Council is concerned that licensees should have a more specific understanding of the types of conduct, generally described in the Code, which may subject their licenses to discipline; and further that they have a clear understanding of the scope and nature of the discipline which may be imposed for certain specific conduct. The levels of discipline described in this resolution will be imposed only in accordance with the applicable provisions of law. The list of activities and conduct contained in this resolution is not intended to be exhaustive, but rather concentrates on the types of conduct most frequently observed at licensed establishments. Other activity or conduct which is detrimental to the public safety, health, morals and 1oa~ welfare and which constitutes a violation of the provisions of Section 1200 of the City Code may also subject liquor licenses to discipline. The actions which the City may take in accordance with this resolution are not intended to preclude such further actions such as actions in law or in equity or criminal prosecution available to the City for the conduct described in this resolution. II. SPECIFIC PROHIBITED CONDUCT AND PROPOSED SANCTIONS. A. Noise and Other Disturbing Conduct Within or Near the Licensed Premises. Licensees are responsible for the conduct of their patrons while within the licensed establishment; and of individuals within the immediate vicinity of the establishment who are either coming to or leaving the establishment. The City is unwilling to permit the continued operation of a licensed liquor establishment in circumstances where it is evident that the licensed activity is having a detrimental impact upon the health, welfare, safety and morals of the community and patrons of the establishment. The following discipline may be imposed upon on-sale intoxicating liquor licenses for verified reports of criminal misconduct occurring on or near the licensed premises and attributable to patrons of the establishment (including persons entering or leaving): a) For five (5) such incidents occurring within less than a 31-day period (beginning with the date of the first of such five incidents) - suspension of the license for /~ -~ up to 10 days and a civil fine of $2,000 for each incident. b) For ten (10) such incidents occurring within less than a 61-day period (beginning with the date of the first of such incidents) - suspension of the license for up to 30 days and a civil fine of $2,000 for each incident. c) For fifteen (15) such incidents occurring within any 91- day period (beginning with the date of the first of such incidents) - suspension of the license for up to 60 days and a civil fine of $2,000 for each incident. The discipline outline above is intended to be cumulative in nature, and incidents which give rise to discipline (or the right to discipline) during a shorter period may be counted in determining whether discipline is appropriate during a longer period. The term "verified reports of criminal misconduct" means a report made to the director of public safety by the licensee or a complaint made by others concerning an incident constituting a crime under the City Code or the laws of the State of Minnesota, which, in the opinion of the director, is directly attributable to the licensed activity. Verified reports of criminal misconduct do not of necessity mean requests for service, and licensees shall not be required to make requests for service in situations where the licensee is /~-.~ capable of resolving the incident without police assistance. However, it is necessary for the City to have an accurate measure of the level of criminal misconduct. The department of public safety shall establish standards and criteria for the making of such reports by the licensee. If the licensee fails to make the required reports of criminal misconduct in accordance with such standards and criteria, the following additional discipline may be imposed upon its on-sale intoxicating liquor license: a) For the first incident of failure to report criminal misconduct within any license year - suspension of license for up to five days and a civil fine of $2,000. b) For the second such incident in any license year - suspension of license for up to 10 days and a civil fine of $2,000. c) For the third such incident in any license year - suspension of license for up to 15 days and a civil fine of $2,000. B. Serving Alcoholic Beverages Beyond the Interior of the Licensed Premises or Permitting Patrons to Leave such Licensed Premises with Alcoholic Beverages. Licensees must assure that the service and consumption of alcoholic beverages will be confined only to those areas permitted by the license. Failure to do so may have an evident and adverse impact upon other activities lawfully occurring within the area and creates a substantial risk of criminal behavior such as violation of the / p-~ Open Bottle Law. The following discipline may be imposed upon on-sale intoxicating beverage licenses: a) The first incident during the license year - up to a 10- day suspension and $2,000 civil .fine. b) The second incident during the license year - up to a 30-day suspension and $2,000 civil fine.. c) The third incident during the license year - up to a 60- day suspension and $2,000 civil fine. d) The fourth incident during the license year - revocation of license. C. Permitting Occupancy to Exceed the Limits Permitted Under the Uniform Fire Code 25.114 (Overcrowding) Licensees are absolutely bound to prevent situations in which the licensed premises become overcrowded. The City finds that the opportunity to serve alcoholic beverages contributes to an environmental wherein overcrowding, if not strictly controlled by the licensee, may occur. Each liquor license issued shall state the maximum occupancy limit for the licensed premises. The following discipline may be imposed upon on-sale intoxicating liquor licenses for incident of overcrowding verified by the City's public safety director: a) The first incident during the license year - up to a 10- day license suspension and $2,000 civil fine. b) The second incident during the license year - up to a ~~~~ 30-day suspension and $2,000 civil fine. c) The third incident during the license year - up to a 60- day suspension and $2,000 civil fine. d) The fourth or subsequent incident during the license year - revocation of the license. D. Facilitating Gamblincr. Licensees must not permit or allow any condition to occur on the licensed premises which would facilitate gambling activity. Licensees may not permit any device on the licensed premises which could be used for gambling. Such devices include blackjack tables, video games of chance, roulette wheels and any other amusement or gambling device as defined in Minnesota Statutes, Chapters 349 and 609, and Richfield City Code Subsections 1100.13 and 1100.01 For any incident of facilitation of gambling the on-sale intoxicating liquor may be suspended for up to a period of days equal in number to the period of days that such incident continued. E. Effect of Suspension or Revocation of Food License. On- sale intoxicating liquor licenses which are issued to establishments because they qualify as restaurants shall cease to be valid for any period of time during which the establishment's food license is under suspension or revocation as the result of actions taken by the city manager, enforcement officer, or both pursuant to Subsection 615.05, subdivision 6 of the City Code. ®~U The on-sale sale of intoxicating liquor during such period shall constitute an unlicensed sale. The City Council retains the right to modify the provisions of this resolution from time and to impose penalties in excess of those contained herein when, in the judgment of the council it is appropriate to do so. Passed by the City Council of the City of Richfield this 14th day of December 1987. John N. Hamilton, Mayor ATTEST: Thomas Ferber, City Clerk ~~ CITY OF RICHFIELD, .MINNESOTA Council Letter No. 152 Agenda June 12, 1995 Issue Statement: Request by Minneapolis-Richfield American Legion Post 435-for a temporary on-sale non- intoxicating-malt liquor license and fee waiver for July 4, 1995. Background: On May 1, 1995, the Minneapolis-Richfield American Legion Post 435 submitted a request for a temporary license to serve non-intoxicating malt liquor (3.2 beer) on July 4 from 1 p.m. to 12 midnight. They are requesting that any fee be waived. This request is in conjunction with the Richfield Fourth of July Celebration and has been organized by the Fourth of July Committee. Recommended Motion: Approve afee-waived,. temporary license for July 4, 1995, with the stipulations that the sale of 3.2 beer cease no later than midnight, and that the applicant submit proof of liquor. liability .insurance coverage for the outside property on which the beer will be served and consumed. Basis for Recommendation: 1. The applicant has complied with the City codes pertaining to a temporary on-sale beer license. 2. The applicant has supplied additional liquor liability insurance coverage. 3. The City has previously issued temporary on-sale beer licenses in conjunction with the Fourth of July Celebration. Alternative Recommendation: 1. The Council could decide to deny the request.. The Public Safety Department has not found any basis for a denial In addition, the Council has previously granted temporary on-sale beer licenses in conjunction with the Fourth of July Celebration. Discussion/Decision Mode: The request for the temporary non-intoxicating malt liquor license has. been placed on the consent calendar for June 12, 1995. . Respectf submitted, ~~ .Jame Prosser City M ger JDP:ds ~~ CITY OF RICHFIELD, MINNESOTA Council Letter No. 151 Agenda June 12, 1995 Issue Statement: Request by Fred Babcock V.F.W. Post 5555 for a temporary on-sale,non-intoxicating malt liquor license and fee waiver for July 3, 1995. Background: On May 26, 1995, Fred Babcock V.F.W. Post 5555 submitted a request for a temporary license to serve non-intoxicating malt liquor (3.2 beer) on the evening of July 3. They are requesting that any fee be waived. This request is in conjunction with the Richfield Fourth of July Celebration and has been organized by the Fourth of July Committee. Their plans are to have an open house and community dance outside on their property and they would like to serve refreshments, including beer. Recommended Motion: Approve afee-waived, temporary license for July 3, 1995, with the stipulations that the sale of 3.2 beer cease no later than midnight, and that the applicant submit proof of liquor liability. insurance coverage for the outside property on which the beer will be served and consumed. Basis for Recommendation: 1. The applicant has complied with the City codes pertaining to a temporary on-sale beer license. 2. The applicant will supply the additional liquor liability insurance coverage. 3. The City has previously issued temporary on-sale beer licenses in conjunction with the Fourth of July Celebration. Alternative Recommendation: 1. The Council could decide to deny the request. The Public Safety Department has not found any basis for a denial. In addition, the Council has previously-granted temporary on-sale beer licenses in conjunction with the Fourth of July Celebration. Discussion/Decision Mode: The request for the temporary non-intoxicating malt liquor license has been placed on the consent calendar for June 12, 1995. Respectf y submitted, Jame Prosser City M ager JDP:ds CITY OF RICHFIELD, MINNESOTA Council Letter No. 150 Agenda June 12, 1995 Issue Statement: Application for a community celebration event license with a request for a fee waiver by the Fourth of July Committee for events scheduled to take_place on July 4, 1995. Background: Each year the Fourth of July Committee makes application fora community celebration event license and requests that the fee be waived for the activities that take place throughout the City on July 4, 1995. A detailed activity plan of the day's events is currently on file. A copy of the committee's bylaws and articles of incorporation are also on file. The food concessions will be staffed by members of nonprofit organizations who have been with the committee since the celebration began. Any proceeds of the concessions are used for community programs. No other outside vendors will be allowed to -sell at a concession. The committee has contacted food sanitarians from the City of Bloomington to ensure that proper food handling practices are followed. They will work with Bloomington sanitarians and follow their recommendations for safe and wholesome food handling. Recommended Motion: Staff recommends the approval of a community celebration event license and fee waiver for the Fourth of July Committee for activities held throughout the day on July 4, 1995. Basis for Recommendation: 1. The applicant has complied with all of the provisions of the City application process and meets the requirements for fee waived. .Alternative Recommendation: 1. The Council could decide not to grant the license. This would result in-the applicant not being able to conduct activities, especially those concerning food preparation, on the Fourth of July. Discussion/Decision Mode: Consideration of the request for the issuance and fee waiver of a community celebration event license for July 4, 1995 for the Fourth of July Committee is presented at this time. Respectfully submitted, Jam .Prosser City Manager JDP:ds ~i CITY OF RICHFIELD, MINNESOTA Council Letter No. 149 Agenda June 12, 1995 Issue Statement: Resolution to authorize name change from Richfield Sister City Commission to Richfield Friendship City Commission. Background: The Sister City Commission approved a motion at the regular commission meeting in May 1995 to officially change the name of the commission to the Friendship City Commission. The relationship with Heredia, Costa Rica, formalized by Council Resolution No. 7661 in August 1990 will be unaffected by this name change. Tony Andersen, Honorary Consul to Costa Rica, has organized several Minnesota cities with ties to Costa Rica to participate in the Friendship City Program - Minnesota/Costa Rica. The Consulate has developed guidelines for program participation in an effort to more consistently facilitate relationships with Costa Rica. Mr. Andersen has also informed the Sister City Commission that the Sister Cities International title is a registered trademark. Richfield was at one time a member of that organization which permitted use of the name, however, no longer maintains affiliation. Recommended Motion: The Sister City Commission recommends authorizing the commission name change to be known hereafter as the Friendship City Commission, with the condition that the two names will be used jointly for a period of time as deemed necessary to avoid confusion. Basis of Recommendation: 1. Friendship City participation will further enhance the existing relationship by putting the cooperative resources of the Costa Rican Consulate at the Commission's disposal. 2. Sister Cities International is a registered trademark and continued use of the Sister City Commission name without affiliation to the Sister Cities International organization could be a violation of that trademark. 3. The established relationship with Heredia, Costa Rica, will not be affected by the name change. The Heredia Sister City Committee will be encouraged to take similar action. Alternative Recommendation: 1. The Council may choose not to authorize the commission name change. 2. The Council may table this issue for discussion at a later meeting. I • .r~ Discussion/Decision Mode: The attached resolution will be presented at the regular City Council meeting on June 12, 1995. Respectful submitted, James .Prosser City Manager JDP:ds Attachments 9A-~ RESOLUTION NO. RESOLUTION ESTABLISHING NAME CHANGE OF RICHFIELD SISTER CITY COMMISSION TO RICHFIELD FRIENDSHIP CITY COMMISSION WHEREAS, the Sister City International Committee was established by Resolution No. 6874 in March 1984 for the purpose of selecting a foreign city with which a Sister City relationship could be formalized; and WHEREAS, the City Council, based on the recommendation of the Sister City International Committee, passed Resolution No. 7661 in August 1990 authorizing the City to enter into a Sister City relationship with Heredia, Costa Rica; and WHEREAS, the Sister Cities International is a registered trademark; and WHEREAS, the Honorary Costa Rican Consul has developed, in cooperation with Minnesota cities having formally established relationships with Costa Rican cities, guidelines for the Friendship City Program -Minnesota/Costa Rica; and WHEREAS, the Sister City Commission approved a motion in May 1995 subject to approval by resolution of the City Council, to officially change the name of the commission from - Richfield Sister City Commission to Richfield Friendship City Commission. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Richfield, Minnesota, as follows: 1. The name Richfield Friendship City Commission shall be adopted, in place of Richfield Sister City Commission. 2. Commission by-laws shall be amended to reflect the commission name change. 3. The new name of the commission shall be used simultaneously with the former commission name until such time as deemed appropriate to avoid confusion. 4. The Richfield Friendship City Commission shall continue its formal relationship in all respects with the City of Heredia, Costa Rica; the proper officials at the Minnesota Costa Rican Consulate and the City of Heredia, Costa Rica, are notified of the commission name change; and, the Heredia Sister City Committee be encouraged to take similar action. Adopted by the City Council of the City of Richfield, Minnesota, this 12th day of June, 1995 Martin J. Kirsch Mayor ATTEST: Thomas P. Ferber City Clerk r %~ CITY OF RICHFIELD, MINNESOTA Council Letter No. 14s Agenda June 12, 1995 Issue Statement: Consideration of a decision on the 76th Street West of I-35W Study. Background: A brief history of studies conducted and actions taken on 76th Street West of I-35W include: • In 1986-87 -The I-494 Corridor Study. The decision was made to leave 76th Street west of I-35W for a separate study. • In 1991 -City and Hennepin County held neighborhood meetings to discuss traffic problems on Penn Avenue at 76th Street. • January 1992 -City Council approved the widening of the intersection of 76th Street and Penn Avenue. • Summer 1992 -Residents complained of environmental problems caused by traffic on 76th Street. • October 1992 - At the request of residents who live on 76th Street west of Penn Avenue, City completed environmental study of noise and vibration caused by - heavy vehicle traffic on 76th Street and the condition of the road surface. Findings showed vibration was noticeable to people but would not damage homes, and noise exceeded state noise standards. • October 1992 -City staff met with residents who live on 76th Street to discuss report's findings. Residents insisted on action to correct environmental problems identified in the study. • Summer 1993 -City performed minor street repair to eliminate spots around catch basins causing the.worst vibrations. • October 1993 -City initiated 76th Street West of I-35W Study. • October 1993 to April 1994 -Richfield Ad Hoc Traffic Committee held a series of four neighborhood meetings where citizens were involved in identifying issues, proposing study objectives, generating alternatives and evaluating them. • October 1993 to March 1995 -City staff notified over 500 residents and businesses located between 74th Street and I-494 and between I-35W and Xerxes Avenue by use of a mass mailing (25 residents that had been missed on the first two mailings were added for the' remaining three mailings) on the following dates: 1. October 8, 1993 for the first neighborhood meeting. 2. April 27, 1994 for the meeting of the Richfield Ad Hoc Traffic Committee to prepare its recommendation on the study. 3. June 20, 1994 for the City Council Study Session when the Council would discuss the Ad Hoc Committee's recommendation. 4. September 6, 1994 for a status report on the 76th Street West. of I-35W Study. ~I 5. March 22, .1995 for the April 4, 1995 Open House on the 76th Street Study. • March 1994 -Survey of 535 motorists revealed that at least 95% of all motorists on 76th Street have either an origin or destination in Richfield, Bloomington or Edina. The results showed that 76th Street carries short, local trips, not the long, regional trips many people expected. • May 25, 1994 -The Ad Hoc Traffic Committee received additional public comments on the study and prepared its recommendation. The Committee unanimously recommended Alternative #3 to widen 76th Street to the north. Based on concerns raised by residents, .the Committee asked that three homes east of Penn not be acquired if the design could avoid them. • In 1994 and 1995 -Hennepin County widened the intersection of 76th Street and Penn Avenue. • April 1995 - Ad Hoc Committee held a second Open House to receive additional public comments. The factors used in evaluating the six alternatives were selected by residents and Ad Hoc Traffic Committee members because they would be good indicators of what might be best for the long-term good of the .City and neighborhood as a whole. The factors are listed below: 1. Improve east-west travel • Roadway capacity • Level of service at intersections 2. Develop multi-modal system • Bus facilities • Sidewalks • Bicycle facilities 3. Improve accessibility • Property access • Neighborhood access 4. Enhance aesthetics • Screenwalls • Landscaping 5. Improve environment • Noise impacts • Vibration impacts • Air quality 6. Reasonable cost and schedule • Construction cost ~~ • Right-of--way cost • -Total cost • Compatible with I-494/1-35W At an August 1, 1994 Study Session, the City Council asked the Ad Hoc Traffic Committee to hold an additional meeting. with residents on the study. An Open House was held on April 4, 1995 where 90 people .attended. Citizens provided oral and written comments on the various alternatives. The results of the Open House were contained in a Council Memo on April 7, 1995. The City Council requested a traffic count to be taken after the intersection of 76th Street and Penn Avenue was widened. The traffic count was taken in early April during a very rainy 48 hour period. The following table indicates that traffic has fluctuated over the years and one must be careful when looking at any one count because traffic varies from day to day. 76TH STREET CORRIDOR STUDY TRAFFIC COUNTS ALONG. 76TH STREET LOCATION 1984 1987 1992 1993 1995 Xerxes& Washburn 8,050 10,764 10,508 9,800 9,800 Sheridan & Penn 9,200 11,414 8,782 12,900 10,400 Frontage Rd & I-35W 13,500 16,541 ----- 17,000 14,200 The reasoning behind traffic management stresses funneling traffic onto a few .high volume roads known as arterials. The attractiveness of an arterial discourages motorists from diverting onto residential streets. This philosophy explains why measures such as additional stop signs on 76th Street are counterproductive and only threaten to harm residential neighborhoods with diverted traffic. Written comments received recently are attached for your information. Recommended Motion: Adopt Alternative #3 as the preferred alternative for widening 76th Street as recommended by the Ad Hoc Traffic Committee. Basis of Recommendation: Alternative #3 best meets the study objectives. Alternative Recommendations: 1. Maintain the street in its current condition and monitor traffic for the next five years. The reconstruction of the Penn Avenue/76th Street intersection has relieved much of the intersection congestion which had been one source of concern for this area. (~-3 2. Adopt one of nine alternative design .recommendations considered by the Ad Hoc Traffic Committee. Discussion/Decision Mode:. The City Council should make a decision soon on the 76th Street Study to inform residents of the City's preferred alignment for an east-west arterial paralleling I-494 west of I-35W. Respectfully submitted, Ja .Prosser Ci anager JDP:ds Attachments L ~ m ~ ti ~~y •e t3 ~o s •• n ti cu O ~' all • • > . o ~ ~ c a~ Q ~ m c c~ •• N r ~ ~ N . .r c~ ~ O O i ('~ ~ O C ca -~ O O e•• ee ee eee o•e •s ee eea •00 00 00 00.0 •00 00 OO OOO ~ ~ ~ ~ ~ o e o~ ~'~-~ ~ ~, ~, ~~~ rCDi°w~~ ~~y~ ~~~ MNt1~O ~~~ ~~~ a~~~• Ne-~ d9 EH EH ~~~ N~a~o• ~- C r EA Ei} tf3 ~~~ NOc~7• ~o~ ~~~ 6y N W ~ F- ~ ~ ~ ~ Z ~ m ~ w R wU~ ~ tII N tvi ?+yR N ~. ~ C U C ~~ L W J ~ ~ ~cvc, NcQ~C -a m ~y = -~~ 'nUp ~ ~tn~ ~~c~ ~U~ m ~~ 3 j ~>+ ~ Q I m 3~~0 .~ ~N•~ micas s~.Q oQ•~ ~ °3 ;~~ °~n' I Z .O W ~ W L ~ ~- ~ ~ ii VI W ~ ~ //~~~~/ ~ ~ JJV~~~ ~ W N f~~ •V E VI ~~\ c~ U U ' F.. ~ ~ O~J.C ~mCAO~ a~Z tIIC/)J oZ.]Q (A ~U~H - v Q 0 Q W~ > ~ ~ ~ C ~ a~i~ O m~~ J J W • . ~ . • . . • W . . . .• . ~ v~ • . • m Q Fa-w r' N ~ ~ ~ ~ •eO 30 ALTERNATIVE 1--(-UUfZ 11 rUU I LANtJ 1/VI I h c;uKti AND GUTTER ON 76TH STREET i (~"°~ This altemative (see Figure 3) retains the existing four-lane roadway with . minimal right-of-way acquisition to improve traffic operations, improve .transit service, and incorporate other safety and access improvements. where Headed. It utilizes the planned Hennepin County improvements at the intersection of 76th Street and Penn Avenue, provides bus turnouts, and retains a sidewalk on the north side. The sidewalk on the south side would need to be removed to provide adequate space for curb and gutter and the bus turnouts. ~ , The advantages of this alternative are: • Handles 2015 demand adequately • Minimal right-of-way acquisition • .Utilizes Penn Avenue intersection improvements • Provides four bus turn-outs • Lowest cost • s • .~. The disadvantages of this altemative are: • Provides no screenwalls or landscaping • Reduces pedestrian access (loss of sidewalk on south side) • Four-way stops must be removed within 5-10 years • Does not improve property access • Does not improve local street access • d % ,~ I I ,j ~~ (i ~, ~\ j ~___~ - r-~_-_ ~~ . ly ~~ ,~ ~\ .III L~ ~ i ~~~ III' ~ ~- ~ ~ ~ .! ~ II < ~r~ ~, e' (-ll I r I IIII III IIi ~ i r---I ~,II ,\ ,.~ ~, ~. I!I I~ I I t~~l III ~ /, .~ III . .., ~. 1 ,~I-i-I ~' (_' I III. -~"-'~ i~-`{''r ~ ;/1; I I --I I lil; I i J I I I I~ II ~-I I I i ~ ! I ~'~ I ; j. y _ (il _ I ~ i ~ ~J III~L~~~,~ i i ~-III, ' ' I ~ : ~__~. iii -I-- I I ~ ~~T ~~ ' _ li i j wed ~ I-. - _ . W,_~_ :~ j I ~ II II i-'~ I ! __, ~ III ---I ; ~ W Q . ' ~ ; -, - i ~ i _i I III I~ ~ N OL -' ) i ' `i~. _ I ;> I I III ~'~.^~. - - ,; I ; j ~' ~ I ~, Ifii' ~-- ` L,1 - .~~ 1 I'I _ I • '. _- I~Ih i j i--' ~ '- liil, j-1 LZ~IIj j ~ I ::, ! , I I'~ 0 - y i W I III'~N OQG : i' j I I ~1. n ~ -III-,~ 0 }i T I~'IT "-',{ 1 i _' III' I ~ ~, i ~ ; ! o~e l- lili i j ,, ~ ~ _ i , L-i ~»,:,~ Z ~ III: 1 0 Z..-~ ~ _ ~ - - a.., _'' ~. Z- -III I W - -i'^ -i-- -i- - ii _~ -_ O . _ IIII~~ I _ _I i '. I Y IIIL---I '~~-.~__.-~ I to II(i: __- _r•' ~~! I_ III----r~ ~ i ~ ' ~ ~ ~~• I ~ i !III i ' c cn 3 .-- ' N ~ x W '3 0 ~- ~ - W 'O3 ~ :~ W f/1 O Z L _r 3 C tC U .3 y c ~ M C'7 LL 0 t- ~~ w W W F- 2 F- n 0 LL. H CA Z O O Cn Z Q V Z b V F-' W LLi ~ Z N ~ _ I... F" O ~ O r- O r Q fru Q W LL _~ ~..~ /~ V J 18 ALTERNATIVE 2--THREE LANES WITH TWO-WAY LEFT TURN LANE WEST OF PENN AND FOUR 11 FOOT LANES EAST OF PENN ON 76TH STREET This aitemative (see Figure 4) includes a three-lane roadway west of Penn Avenue (one lane in each direction with atwo-way center left turn lane) and four 11 foot lanes east of Penn Avenue on 76th Street. Four lanes are required east of Penn Avenue due to significantly higher traffiic volumes. As with Alternative 1, this aitemative was designed to stay within the existing right-of-way as much as possible. This aitemative also utilizes the planned Hennepin County improvements at the intersection of 76th Street and Penn Avenue and provides bus turnouts. Sidewalks are provided on both sides of the street. It is likely that the stop signs at Upton and Sheridan would need to be removed immediately to provide adequate traffic flow on 76th Street with this aitemative. The advantages of this aitemative are: • Small amount of right-of--way acquisition compared to other alternatives • Utilizes Penn Avenue intersection improvements • Provides nine bus turn-outs • Maintains sidewalks on both north and south sides • Low cost • d The disadvantages. of this aitemative are: • Handles 2015 demand but has no reserve capacity west of Penn Avenue • Provides no screenwalls or landscaping • Uses middle lane for left turns west of Penn Avenue • Property access at driveways will be diminished due to fewer gaps in traffic flow . • .Cross-street access will be diminished due to fewer gaps in traffic flow • Reduces pedestrian access across 76th Street due to fewer gaps in traffic flow • Four-way stops must be removed immediately • Does not improve property access • Does not improve local street access • • ~ I- i / 1 III ~~ w . -- a ... ............... KC -- I!I ~ \ ~\ I!I \~ ~, 19 '0 L~ ~ ~i~ ~~~, N z I L'I, ~ ~ ` Z l I!I ~ ', ,, 3 u, ~lil I. ~ i ~ ~ ;, ~ III , of ...'~~.. _; L I -.III ~"~ .I !t.: ~;' A ~ F- II _1 ~~~ ~~ 'I~ J ~~ e ~ ~ W r--i lid - ~ . ~ ~ i ~ I ~ ~ ~ Z ~"" -In ~ I ! r' I ! ~ :~I ! ~ 'I N ' i , Iq I~ Ip W I I i ~ !all n-~J 'x O -, _ III ~-~ jY o I I ~~ W t- L J !~ ~' - I I, - .- ~ - III J H _ I - ~ ~ ~; ,? ~O; • ~ W ~"' O = m ~~I ~ L~ I ~~ I _i ~+I z ~ ~~ Z ~ - ~ III t I~ W ~ i ~;. _ r a Z ~ ~ Q V I i i 11 I I , H > i ' iJ', ~ ~ ~ O E... GC I Ilj~- -:+ ~, OL ~ ~ 0 0 ~ Q O I ~, i I~ ' ~ --~ ti i' ~ g r3 w ~ ~ Z U ; !~' >< ~ Q Z to ...t • III; I' r, O Z (- II ( ii ~1 F- Q~ -" ~ II j ~_ J ; a - ~ -J - to i I f'z'-~. _ ""' _ i .~' Q ~ r II ~ H - ~ i - ,. ~ r i W .--_ II ~I ~ .J c~ _- . i I I ~ i C_I i 3i II~~ ~ ~~-I .T ~ i ; ~ N - -N--~II ,----- --- - , Z ~ II ~ ~ ~ .-~ z o ~ -' - ~ rr "'~ d Z ~ ~. .mss.. ~ f W i I II _~ ~ ~ . ;.. I 1 i ;~:~ 0 - ~ II !-- - ~ '- ?-- - s I' -- ~'I I'1 20 ALTERNATIVE 3--FOUR 12 FOOT. LANES WITH LEFT' TURN LANES AND LANDSCAPED MEDIAN ON 76TH STREET Alternative 3, which is illustrated in Figure 5, includes four 12 foot lanes (two in each direction) along 76th Street with turn lanes at intersections. In addition, this alternatives includes a landscaped median, apedestrian/bike trail on the north side, a sidewalk on the south side, screenwails and landscaping. near residential properties, ,bus turnouts and improved driveway access. This altemative would require. the acquisition of a row of homes on the north side of 76th Street. The advantages of this alternative are: • Handles 2015 demand easily • Provides left turn lanes along entire length for, better local street and driveway access • .Improves driveway access for south side properties west of Penn Avenue • Improves pedestrian crossings of :76th Street • Provides screenwalls on each side of the street plus landscaping west. of Penn Avenue • Provides screenwall on north side east of Penn Avenue • Provides pedestrian/bike trail on north side plus sidewalk on south side • Provides landscaped medians • Utilizes Penn Avenue intersection improvements • Provides four bus turn-outs • Moderate cast • The disadvantages of this altemative are: • Requires acquisition of 16 single family homes plus additional right-of-way on the north side of 76th Street • Provides no screenwall on south side east of Penn Avenue • Restricts access to some local streets by closing intersections • Limits left turn access to certain cross-streets • Four-way stops must be removed within 10-15-years e • m ~-i -; ~1J _ ~ ~ _~_I(I_; ~ _ _ , I I.'/ i ~ H W~ i~. ..............~ _ .~ _ ~ Q y ~I~ I ~ ~` \~`\ `1 1 i ~~~\~ ~/ ,Z ~ ~~I ~~ it ~ ; (~~ a: ~~, .~ W ~. YI Z ~ I I J: ~~ ``~ ~ Z ICI IIII o o ,-~' ~~•, ~~ i, i~l T~ i~! ~i , ~I.~ i i. r: - ~-~ - - '' ~-1 -~ III~~ !_ ~ 'a l_ I ~ ji Z ~~ i W H t W ~~`I. i! is ~'` Z I I < y, J~_ 1''11 - III I - v '~V i , -~~ ~ J ~ ~ ~~I Ili -- y}1 - - _^~. v, ~ ~ I III ~ Z W -- a: - 1 I H _' ~~ i i I II W C H I ~ ~~ i~ ~ ~ moo Y 0~C."~ II H Q ~~-. ~i FFI:~'~J~~ i I ~~ oZ I I , Io W_ V I :~ ~ Z i I ~' ~ ` ~ ; j I I W J ~ I i ~ F- fly '_ ~ ~ V1 ~ -. 9 Wi' C-~ -'" ~ Y --___--- __ -- ~ o _---_ -_ `_. - _ ~_ "' - ~ 3 z~ J r r 3 a ;ie C H ~ = w c - O~ W 3 W •~ ~ ~ :e; JS Z W a ~ 0 _ N 7 N 0 L N 3 Z N ~ Q pp W W `=Q 3 m .: x h W of j .; 7 z 3 c 3 C W ~~ rM~-1~ 1~1 u~ Z M O (~ tt~ (/~ LL ~ W ~ TN 2 W H_~ ~~Zo cn 7 O W = L ` i..L n "'~ Q U O O~ ~ u.~~p ~ ~ ~ F- ~ ~Q U ~ ~V o po ~~ 0 ~ ~Z Za J Q w r~ V J 22 ~Pll ALTERNATIVE 4--NEW ARTERIAL USING EXISTING FRONTAGE ROAD AND 78TH STREET Alternative 4, shown in Figure 6, would move the east-west arterial in south Richfield from 76th Street to the existing north frontage road of 1-494. Anew north-south street segment would need to be constructed between the existing 76th Street bridge over I-35W and the existing frontage road. Existing 76th Street would be realigned to form a tee intersection with the new alignment similar to the reconstruction presently occurring on the east side of I-35W. A connection to York Avenue on the west would need to be constructed in coordination with the City of Edina. While this altemative would provide an opportunity to downgrade existing 76th Street, it has several geometric and operational problems including several sharp curves, close proximity to the I-494JPenn Avenue interchange, and inconsistency with the proposed redesign of the I-494/1-35W interchange. This altemative would have to be reconstructed at the time that 1-494 is reconstructed. The advantages of this alternative are: • Reduces traffic on 76th Street by 35 percent • Improves driveway and cross-street access along 76th Street • Improves pedestrian crossing safety along 76th Street • Provides screenwalls and landscaping along 78th Street west of Thomas • Provides opportunity to reduce 76th Street to three lanes west of Penn Avenue • 0 The disadvantages of this altemative are: • Requires acquisition of 12 single family homes along 78th Street plus 8 business properties and an apartment parking garage • Requires rebuilt intersection at Penn Avenue and 78th Street • 78th Street intersection at Penn would operate poorly due to its close proximity to the 1-494 ramp • Low design speed because of severe curvature • Provides no screenwails or landscaping along 76th Street • Is likely to require. a new signal at York Avenue which must be coordinated with the City of Edina • Would need to be reconstructed during 194 reconstruction • .Moderate cost ~'~` ~% " '~_ W \_~ F ~ `O` I ~, c~~ ~~. o- W W - , .. -~ ~ ~ DTI I~~ ! !~) I ~`I ~'Iji~' ~~~,~ ~~ _, ~i I I ~ r i ~ ~ i ~ ~ i T~ ~ r "~ i ~i _--~f W I~ ~ ~ I I I~ I i'~r\j - ~-- ~-N-I ~_~-=-_ -; --2=--=-- - ~ ~ ,. .~~ ~ i - ~ ~ _.._ L,-~- - -. n _ i- I ~ ~ I ~ I~ ~ i j ~j- i rid ~ l T... .~.., -~- -~ _L I i I ~ .. ~ ~ J y Z L ' ` -! ' ~ ~~i ~ _~ ,_ ! \ Paz- ~~--~ .~ ,~--, - , ~~ , >~ --',-:~" vim. T ,~ Q o - -Sri, : I ~ ~ y : Z i . y j . I ~ __ ~_- _ I ~-.-._ ~ ~ f i _-__ 5 r ~i Z ~~ d W _-----_a,_ _ _- -----_ U- I ( , ; ~ N W m U a Q H •= 3 _N ~ X C W ~ ~ - H W W H H CJ H O H 3 ._ ~X W 3 5 N W r L Z 24 cfl w V Z H v~_ ~Z (~ LL ~ Q w ~ O ~ O~ vJ r _ ~ b LL n Q~ V O O } ~ ~ } 0 ~ ~ ~"' ~ JV ~ ~ Q~ Z u~ O ~ ~ ~~ O W cn Z ~ ~ ~ ~ Q u~ Q c1~ ALTERNATIVE 5-NEW ARTERIAL USING 77TH AND 78TH STREETS l~"i This altemative would move the east-west arterial in south Richfield from 76th - Street to an alignment utilizing 77th Street east of Penn Avenue and 78th Street (frontage road) west of Penn Avenue (see Figure 7). Anew north-south street segment would need to be constructed between the existing 76th Street bridge over I-35W .and 77th Street. Existing 76th Street would be realigned to form a tee intersection with the new alignment similar to the reconstruction presently occurring on the east side of I-35W. A connection to York Avenue on the west would need to be constructed in coordination with the City of Edina. While this altemative would provide an opportunity to~downgrade 76th Street, it would require the reconstruction of 77th and 78th Streets and right-of-way acpuisition to accommodate that reconstruction. The advantages of this alternative are: • Reduces traffic on 76th Street by 50 percent • Provides screenwalls and landscaping along 77th Street • .Provides looped streets along 77th Street to limit access into neighborhood • Potential for screenwa(I and landscaping along 78th Street west. of Thomas or Penn when 1-494 is reconstructed • Significantly improves property and cross-street access along 76th Street • Signifiicantly improves pedestrian crossing safety along 76th Streit • Provides opportunity to reduce 76th Street to three lanes west of Penn Avenue • The disadvantages of this alternative are: • Requires acquisition of 9 single family homes along 77th Street, one apartment building with 140 dwelling units, and 7 businesses • Potential need for acquisition of 12 additional single family homes along 78th Street when 1-494 is reconstructed • No immediate screenwalls or landscaping on 78th Street west of Penn Avenue • Segment west of Penn Avenue (78th Stree#) would have to be reconstructed during l~94 construction • Requires new intersection at Penn Avenue and 77th • Could adversely affect traffiic operations along Penn Avenue due to its close proximity to the 1-494/Penn Avenue interchange • Is likely to require a new signal at York Avenue which must be coordinated with the City of Edina • Very high cost s • ~,a ~ I li L .« a iii ~~ ` rl I ~_ ~ lil H~fll n I lil O t III ~ p ~ lil / ~!~~~ ~ - ~ \`1 ` ~^ .\\W ~Z~"t7 /^ F~ W ~++ V d ~ ~O \ ~ ~\:~ ~aa ~,Z ~ Q O ?" ~~ `, i '1 I I I~ ~~ I III~~ LW, ~ a ~~ a -~ ~ i ~ j i Iy~ ~ Illlil L~~< H~ - 'W III:_--30 I 'I ~ r ~ ~ I^j T~ i~ I jlj~ ~ ~Z a~ I ~--: I j ~ I ~ '~ It ~I V C~ , --- I- -- ^i ~, Z~ ._, 0_ III ~ I Q~ -. r ; ' _O I II~ L~^ I Lei r~ ~:/ ,li .. ~. I!I `"+I ~ I j' j ~ j,~ l_i'I r - i .I ~ i ! ,~ it I'"~. i i _. _ y ~ L. - - I _ _ ~ _ H ~~ o ~ ~~ ~` I I~ I , ~~ , \\ W C ` - ~~ I t_J j !~ 1' s ~ LI_o ' i l1 ~ I!~!-_- - - - jl a.- ~.i ~j l I ~r~~l I~I I ~ ~ - I, I, ~., - ? , I- -1, T - tl l ~I ~ ,`- j W j j ~~ I I, I ~ I ~ ~- I t ;o ~_ _ -_ i I , I :I I j~ j I I ~ N Z j i ~ N O N 3 m ---- W w 3 b • H C 3 - z > ~ N Z ~ Z O `e N T N ~ ~ ~ 3 W Y 3 m _c ~X W 3 W 26 r., w r----~ cn Z ~ Q ~ ~ t~ ~ 0 ~o W N~ e- f- ~ ~ W ~~ ~ ON Cn _ _ ~ ~~^i r~~~v O ~ ~ O r ~Q^u Z ~ Z O ~ ~ Q ZZ /'Q/'~~ ~L H ~ .J Q i~ ALTERNATIVE 6-76TH STREET TO NE1N ARTERfAL WEST OF PENN ~ /~ USING 78TH STREET Alternative 6, shown in Figure. 8, combines improvements-along 76th Street east of Penn Avenue with a new alignment in the vicinity of ,Sheridan Avenue connecting to a reconstructed 78th Street between York. and Thomas. Existing 76th Street would be realigned to form a tee intersection wi#h the new alignment at approximately Sheridan Avenue. A connection to York Avenue on the west would need to be constructed in coordination with the City of Edina. While this alternative would provide an opportunity to downgrade 76th Street. west of Sheridan, it would require the canstruction of a new north-south roadway in the vicinity of Sheridan and reconstruction of both 76th and 78th Streets. Property acquisition would be required along 78th Street and in Century Court West. The advantages of this alternative are: • Reduces traffic on 76th Street by 20 percent west of .Penn Avenue • Provides screenwails and. landscaping along 78th Street • Provides four bus turn-outs • Utilizes Penn Avenue intersection improvements Slightly improves cross-street and driveway access on 76th Street west of Sheridan • Slightly improves .pedestrian crossing safety on 76th Street west of Sheridan • Provides looped streets along 78th Street west of Penn to limit access into neighborhood • .Provides opportunity to reduce 76th Street to three lanes west of Sheridan A The disadvantages of this alternative are: • Requires acquisition of 15 single family homes plus two apartment buildings with. a total of 280 dwelling units • No screenwalls or landscaping east of Sheridan • -May require new signal at York Avenue which must be coordinated with the City of Edina • Least .effective alternative alignment in terms of traffic diversion from 76th Street • Very high cost • b-~~ i I% , I .~ - - i 1 _/ -----...._.~ Iii 'r i \\~ ~ ~: ICI jnn n ~. ~~ \; III i~~ ly ~ili ~ ~~ III. ~ ~~ III ~ i r-l ~ ~ I <~ III ~ I `~ ~! \ ' \~ lil .III i ~ 1 III ~ r.J~ I I. IJ lJ II_ .I_I lil _ - ... ~ ~ III _~m-~ ~.I ,~,JI iii I I ~'~~ IC,i_ • R J W I III ~ ~ f I i I III ~I 0 ~ 0 I _.~ .. W ~ III W c:,e-- _ rl. 1J~ . H iYOC-I I' -•-cn~ - ---- N jl L Ci ~ I Ilt i~ W ~ ~ I I I ~._ G Z_I li! _ ! N OC ; t I ;i 11 c O~lll ~ ~~ } j I I J ,I~ ' `~'~~ II Z, ~ ~.I C'I~:, I = , ~= _ ~I__, ~- T--~ ,w - I~ i c 1 II Ij ~ - I I ~. I I Ili ~ i ! ~ ~ ~ - --1 - III - - - -~-=• Ow<1 ~' i ~ I III I i ~-~ ~ ~ ' _~ , \~~i.~l~ i I I ~ IT ~ ^~1 ~ ~rrr \~~ !~ 5 i i ~ I •~ " i . ~~~\\ \ I i ~ ~` ~~ i~ a I~~ I n~~'Il~~l ~ ~ ~ ~ -r-~ I__'ll~' __. -_~ L_t-~'I ~~~ I 1 - <.- v1 ' ~ -- ~ L! - L I ~~I- - - - ` III W f- ~-. 'L ~~ _~! Lip °-~ ~i Li ~ _i i Z '~ •^'T. jet ~ f T~ T I~ r. Q Q i j i I i ! i ~ i l lI I ~~ ~ II N %I I- ~ , i I- ~~I ~ Q ~ ~ II N i .,I - I I ~ TN Z. ~ ~ -.I...... t_i ~ i ice' `W ~r i 1! ~ -! _ I I ~ .-- - % . ~, zl lT r - C .I MI W .~ 'Z •;~, W ~ ~' - =_ r e3 W Z Z W li W W N N W 3 1 W d > ~ Z o a W 0 c N Y ~ ~ Y. .= W ~X W 3 W 'n Z ~$ r XJ 0 3 --- x ~3 .x W 3 X ~ W o` z 28 J C7 Z W L1. O ,- Q W _~ ~3 LL W ~ O W Y' wig ~ W ~/ ~ W ~ q I~ ~ ZQ ~ H ~~ ~ f~ W W C.U ~ Z~ ~ 0~~~ } I-- ~ } '~/^~ IQ 7n U v/ i L Z N W ~ W O Q ~~ ~ ~m ~ QQ W W Q Z Q N~ l~~n V J ~~-~~ .POSSIBLE ADDITIONAL ALTERNATIVES 7. DO NOTHING This alternative means the City can replace the street exactly as it is today with .the two center lanes of 11' width and two outside lanes of 9 1/2' width. The cost of this work ranges from $1.0 to $1.2 million. ADVANTAGES • Low cost. • No right of way needed. DISADVANTAGES • Does not resolve environmental problem of conflict with residential neighborhood located too close to the street. • Does not correct access problems for individual properties with driveways on 76th Street or for traffic entering 76th Street from cross streets. ~-~ s POSSIBLE ADDITIONAL ALTERNATIVES 8 ALTERNATIVE #3 WEST OF PENN AVENEU AND DO NOTHING EAST OF PENN AVENUE This alternative would widen the road west of Penn Avenue using-the Alternative #3 alignment but leave the roadway east of .Penn Avenue exactly as it is. ADVANTAGES • Resolves environmental conflicts with residential neighborhood located too close to 76th Street. • Moderate cost. • Corrects access problems for individual properties with driveways on 76th Street or for traffic entering 76th Street. from- cross streets. DISADVANTAGES • Requires acquisition of 12 homes, all of them located west of Penn Avenue. • Does not provide additional long-term capacity for the heavier traffic forecast for east of Penn Avenue. (~~% ~ POSSIBLE ADDITIONAL ALTERNATIVES 9. ALTERNATIVE #3 WIDEN 76TH STREET WEST OF PENN AVENUE NOW AND DELAY THE WIDENING OF 76TH STREET EAST OF PENN AVENUE This alternative would be similar to Alternative #3 but it would delay widening of 76th Street until residents living east of 76th Street are willing to sell their homes. ADVANTAGES • Resolves environmental conflicts with residential neighborhood located too close to 76th Street. • .Provides additional long-term capacity for the heavier traffic forecast for east of Penn Avenue. • Moderate cost. • Corrects access problems for individual properties with driveways on 76th Street or for traffic entering 76th Street from cross streets. • Responsive to residents concerns about right of way acquisition. • Provides City with additional time to resolve design issues raised by residents east of Penn Avenue. DISADVANTAGES • Requires acquisition of 15 homes. ~~~ Q~ness ~~~cxnagevnen~ ~oyn~cznz~ SUITE 404 5200 WILLSON ROAQ EDINA, MINNESOTA 55424 (612) 927-0612 May 23, 1995 Mr. Martin J. Kirsh, Mayor City of Richfield 6704 Portland Avenue South Richfield, MN 55423 Subject: 76th Street Expansion Colony Apartment Homes Dear Mayor Kirsh: We recently met with Tom Foley who explained to us that the City Council would be meeting the first part of Tune for a study session regarding the 76th Street expansion west of 35 W. It appears to us that the most likely outcomes of your study are (1) no expansion whatsoever, (2) Alternative 1; or (3) Alternative 3. In the event that Alternative 1 is chosen we are concerned by the location of the bus cui-in directly in front of our townhouse unit front doors. We feel that the noise and fumes from the buses would cause us enormous problems in keeping these units rented to good tenants. In other alternatives the bus cut-in is located further east, between the Colony main entrance and Humboldt Avenue. This location seems to be the more logical choice. Alternative 3 brings 76th Street extremely close to our townhouse square consisting of 20 - 2 bedroom units. We continue to be bothered by the fact that the three houses directly west of our property are being considered for acquisition while our units are not being discussed. Tom Foley told us that according to his prelinunary measurements the houses were only 33 feet from the street as compared to our property which is 39 feet. We visited the property today and it actually appears to us that at least one of the houses in question is actually set back further than our property. This is assuming that the measurement is from the house itself and not from the edge of the front step. However, we could certainly understand an argument that the measurement should be from the edge of the front step since the homeowner certainly needs a way to enter their home. If this is the case our property should also be measured from the edge of the nareow connecting sidewalk necessary for tenants to walk from their front door to the parking area. This measurement would bring us 6-112 feet closer to the street or 32.5 feet. We understand that this is very specific information for this stage of your decision making process but we felt that it maybe information which could impact your decision. Another fact of interest might be that the 1996 assessed valuation for the Colony is $5,141,000 which equates to $24,.250/unit or a total of $485,000 for the 20 unit townhouse square. iaE4L ESTATE MANAGEMENT • t3AOKERAGE INVESTMENTS ~~ 1 2 Mr. Martin J. Kirsh, Mayor May 24, 1995 In addition, we are concerned that our tenants will have a great deal of difficulty turning east from our main entrance during rush hour periods. If you are considering the addition of a stop light we would like you to consider the comer of 76th Street and Logan Avenue. This would allow our tenants to exit our property on 75th Street and enter 76th Street from Logan Avenue when traffic is especially congested. If possible we would also be very interested in the possibility of an additional entrance/exit to aux property on Logan Avenue to further facilitate traffic flow. Thank you for taking the time to review our concerns and comments. Sincerely, ~~~~ ~~' Robert E. Otness M. Kimberly Otness. .J'ce: Tam Foley ~-aa May 9, 1995 Ad Hock Traffic Committee 6700 Portland Ave. Richfield, MN 55423 Let me thank you for the time you spent on the phone with me. Upon your request for a letter, in regard to our concerns of the 76th Street project west of 35W, I'm forwarding this letter on your behalf. For the past year, my wife and myself have read and heard claims of widening 76th Street, west of 35W, thus one of the claimed projects having to remove 12 homes on the North side to accomplish this. My wife, three girls and myself have lived on the corner of Xerxes Ave and 76th St. for eight years this June. (7520 Xerxes Ave. So.) The most aggravating part of the whole scenario, is that we have always planned to move the spring of `95. Eight years would have given us plenty of time to build enough equity into our home, so we could afford to build a home large enough to accompany a family of five. We have already began our preapprovals and building plans, including purchasing land! My biggest question is, What is going on! ! If your going to buy out and remove homes, fine... I'm for it! If it's going to take five to twenty years, then please let me know what my options are on selling the home...pending this so called project. We need a answer A.S.A.P.!!! who would have ever dreamed that when the time was right to relocate their family or build a bigger home,...they couldn't. Please respond to my letter as soon as you can. I don't want proposals, claims, or speculation, I need direction? Sincerely, Luke Java and family .~~D,~~V~D .MAY 7 ~ 1995 ~'~~~ Mayor Marty Kirsch Richfield City Council 6700 Portland Ave. So. Richfield, MN 55423 Dear Marty, May 15, 1995 ~~g' 1 ti1~~ ~ ~~~ My wife and I are writing to let you know how we feel concerning the- discussions regarding 76th St. We have lived in our home for 40 years this May. We have watch the road go from being a nice two-lane road to the current four-lanes. Along with the four lanes has brought an increase in noise and vibration to our home. We have attended the meetings concerning the various alternatives and we firmly agree with the alternative that was recommended by the Ad Hoc Committee. We understand that this proposal would mean that we will have to move however, we believe that alternative three is the best long term solution for the City of Richfield and its residents. Alternative three •offers the most advantages of any of the: six proposals that were presented. In closing, we are asking that you vote in favor of alternative three. We are also requesting that the city council act promptly. The process has gone on far too long and the people along 76th St. deserve to know what is going to happen. Thank you for your time. Sincerely, __) ` - .and Mrs. Carleton Hoff 7544 Thomas Ave. So. Richfield, MN »423 ~-a ~F June 5, 1995 To: Thomas Foley Martin Kirsch James D. Prosser Susan Rosenberg From: Sandra H. Engen 7621 Morgan Avenue Richfield, Mn. 866-1893 South ~~~~`~ -~ Re: West 76th Street Project As you know the new intersection at Penn Ave. So. and 76th Street has opened up the traffic pattern so that i.t runs smoothly on 76th Street and does not become backed up as it did in the past. Because this has made a difference, I think it is even more important that very few changes be made to 76th Street. Community is very important as you people have made note of and those of us west of 35W, east of Penn and south of 76th do not want to be cut off fram the community north of 76th. We do not need dividers in the center of the street to catch liter, salt in the winter, be a hazard for snowplows, landscaping that would have to be replaced each year on them because of the winter, or a street that we could not get across. Why does our community need to provide an easy alternative to 494 when the community east of 35W was given a new street set apart from the single family residential areas. The widening of 76th Street west of 35W is going to cut our single family residential community apart, as well as the apartments in the area. It does not seem logical to install a bike path on such a busy street when there are other streets that are better suited for such a path. Bikers are not interested in riding on busy thoroughfares even if it is on a bike path. There are more interesting areas to bike ride in Richfield than 76th. The proposed widening is also a problem for the members of Woodlake Lutheran church. We have been members at this church since 1968 and removing more of the parking lot will cause problems for our membership. I plan to be at the meeting on June 12, and to attend the open house beginning at 5:30 p.m.. I would like to know when the study session was held for this project and why we weren't informed of it? CITY OF RICHFIELD, MINNESOTA Council Letter No. 147 Agenda June 12, 1995 Issue Statement: Presentation of Ten Year Service Award. by Minnesota Sports Federation. Background: The service award is presented to organizations and cities that have hosted softball tournaments for ten years. The service Richfield has provided to amateur sports participants from the State of Minnesota has been deemed invaluable. Besides the benefits provided to the amateur athlete, Richfield's-businesses and beautiful recreation facilities have been exposed to many participants and fans throughout the state. Recommended Motion: Accept the Ten Year Service Award from the Minnesota Sports Federation. City staff members Frank White, Recreation Manager, and Jim Kruse, Park Foreman, will accept the award on behalf of the. City. Basis of Recommendation: 1. Richfield has hosted softball tournaments for ten years and -been the site for such tournaments for many more years: 2. The Minnesota Sports Federation wishes to honor the City of Richfield by presenting a Ten Year Service Award. Alternative Recommendation: None. Discussion/Decision Mode: This item was deferred from the May 8, 1995 agenda at the request of Mr. Perry Coonce. Mr. Coonce, from the Minnesota Sports Federation, will make the award presentation. - Respectf submitted, Ja a .Prosser Cit M Hager JDP:ds 3 CITY OF RICHFIELD, MINNESOTA Council Letter No. 146 Agenda June 12, 1995 Issue Statement: Presentation of the "Gene and Mary Jacobsen Outstanding Citizen" award to Lowell Larson. Background: The Richfield Human Rights Commission has selected a Citizen of the Year award recipient since 1971. The award has been presented to a person or organization whose actions demonstrate an awareness and commitment to the attitudes and practices that foster human .understanding,. tolerance and the spirit of human relations. During the past yearthe Human Rights Commission considered changing the name of the award from Citizen of the Year to Outstanding Citizen. Also during the past year, Mary Jacobsen, wife of Gene Jacobsen, passed away. In recognition of Mary Jacobsen the Human Rights Commission decided to change the name of the award to the Gene and Mary Jacobsen Outstanding Citizen Award. After careful deliberations, the Human Rights Commission has decided to present the Gene and Mary Jacobsen Outstanding Citizen Award for the year 1994 to retiring School District 280 Superintendent Lowell Larson. Recommended Motion: The City Council, in cooperation with the Human Rights Commission, should present the award fo Lowell Larson. Basis of Recommendation: 1. The Human Rights Commission has met to review nominations and has discussed the presentation of this award for 1994. 2. Based upon that discussion, Lowell Larson was selected as the 1994 award recipient. 3. Lowell Larson has demonstrated along-term commitment to serving the interests of diversity in the community through his proactive work as Richfield's School Superintendent. He has actively. participated in the. Richfield Diversity Connection and numerous other activities that recognise and celebrate diversity. Alternative Recommendation: None. 3 Discussion/Decision Mode: This presentation has been placed on the presentation section of the June 12, 1995 City Council agenda. A reception for Mr. Larson, his family and friends will be held in the. Public Safety lobby area prior to the 7:00 p.m. Council meeting. Respectfully submitted, Jame .Prosser City M Hager JDP:ff -- CITY, OF RICHFIELD, MINNESOTA Council Letter No. 145 Agenda June 12, 1995 Issue Statement: Presentation of Certificates of Appreciation to the 1995 Miss Richfield candidates. Background: Each year a young lady is selected as Miss Richfield during the Fourth of July activities. This year, there are eight candidates. The Miss Richfield pageant has changed its name to the Miss Richfield Ambassador. Program. The new title more accurately reflects what the program represents. Coronation will be at Veterans Memorial Park at 4:45 p.m. on July 4. Recommended Motion: Present each candidate with a Certificate of Appreciation. Basis of Recommendation: 1. This has been along-standing tradition. 2. The candidates will be present to receive the certificates. Alternative Recommendation: 1. None Discussion/Decision Mode: This item has been placed on the June 12 agenda and certificates have been prepared.. bmitted, James I City Ma JDP:cak Attachment /-/ MISS RICHFIELD CANDIDATES 1995-1996 LISA BLAKE Lisa is a 1993 graduate of Richfield High School. She currently attends Normandale Community College and plans to atttend St. Thomas to pursue a career in advertising management. Her parents are Matthew and Debrah Blake. MARCY ANNE BROVOLD Marcy Anne is a 1994 graduage of Richfield High School. She currently attends Normandale Community College and plans to atttend St. Thomas to pursue a career. in law enforcement. Her mother. is Ellen Brovold. SHARON MARIE CHURCHILL Sharon Marie is a 1995 graduate of Richfield High School She plans to attend Normandale Community College to pursue a career in general education leading #o either psychology, teaching or dance. Her parents are Linda, Ron and Janet Churchill. DANA CIMINO Dana is a 1992 graduate of Richfield High School. She currently attends Normandale Community College and plans to attend St. Thomas to pursue a career in general business management. Her parents are Fredrick and Marlene Cimino. HEATHER EIDSMO. Heather is a 1995 graduate. of Richfield High School. She plans to attend Mankato State University to pursue a career in elementary education. Her parents are Dave and Jan Eidsmo. MARJIE KAISER Marjie is a 1993 graduate of Minneapolis Lutheran High School. She currently attends St. Olaf College and is, pursuing a career in psychology, family studies and communication. Her parents are Jim.and Kristin Kaiser. .JENNIFER MARIE REHER Jennifer is a 1992 graduate of Richfield High School. -She currently attends the University of Minnesota and is pursuing a career in broadcasting and public relations. Her parents are Jack and Judy Reher. JILL STEVENS Jill will graduate from Richfield High School in 1996. She plans to attend Mankato State University. to pursue a career in accounting: Her parents are Larry and Judy Stevens. f-~ MISS RICHFIELD ROYALTY 1994-1995 CALI GAIBOR Cali just graduated-from Richfield High School and will be attending the University of St. Thomas in the fall to pursue a major in Criminal Justice.. Some of her achievements include National Honor Society, Positive Peer Pressure, People-Editor of the yearbook, Students Against Drunk Driving, Spring Musical, Amnesty International,. Scholastic Honor student, Presidential Academic Achiever and "A" honor roll. Cali is looking forward to competing for the Minneapolis Queen of the Lakes title in July. Her parents are Jose and Heidi Gaibor. TRACY STANCHFIELD Tracy is employed at George Konnik Associates,. a travel agency and engineer recruiting firm. She will be attending the College of St. Catherine in the fall pursuing a career as a Registered Nurse. In her spare time she enjoys softball, gardening. and spending time outdoors. Her parents are Barry and Lynn Stanchfield. CITY OF RICHFIELD, MINNESOTA Council Letter No. 144 Agenda June 12, 1995 Issue Statement: Special City Council meeting for purposes of hosting an open house on the topic of the 76th Street Study West of I-35W. Background: The Richfield Ad Hoc Traffic Committee has hosted several meetings for the Study of 76th Street West of I-35W. To ensure that everyone has had an opportunity to make their viewpoint known to the Council regarding the study,. the Council is hosting an open house from 5:30 p.m. to 7:OO p.m. prior#o the regular Council meeting. Recommended Motion: No action required of the Council at this special meeting. However, Council will be asked to take action at the regular Council meeting of June 12, 1995. A Council Letter is part of the agenda for the regular meeting. Basis of Recommendation: 1. The Richfield Ad Hoc Committee has hosted several meetings on the Study of 76th Street West of I-35W. 2. The Council would like to be assured everyone has had an opportunity to express their viewpoint on the study. 3. An open house format is informal and invites people to make comments. 4. The Council will be asked in the formal regular Council meeting of June 12, 1995 to take action regarding the study. Alternative Recommendation: None. Discussion/Decision Mode: This special Council meeting from 5:30 p.m. to 7:00 p.m. is only for purposes of hosting an open house on the 76th Street Study West of I-35W. Respectfully submitted, James .Prosser City Manager JDP:ds