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CITY OF RICHFIELD, MINNESOTA TUESDAY, APRIL 12, 2011 SPECIAL CITY COUNCIL WORKSESSION CITY HALL COUNCIL CHAMBERS 6700 PORTLAND AVENUE 5:30 P.M. AGENDA Call to order Roll call 1. Discussion with Wellington Management, Inc. regarding preliminary proposal for redevelopment of former Kmart site, 66th Street and Lyndale Avenue (Council Memo No. 39) Notes: 2. Discussion with Three Rivers Park District regarding Intercity Regional Trail (Council Memo No. 40) Notes: 3. Discussion regarding proposed Mn/DOT projects related to I-494 (Council Memo No. 40) Notes: Adjournment ***********x******x********************~*******************************************************~****** REGULAR CITY COUNCIL MEETING COUNCIL CHAMBERS 6700 PORTLAND AVENUE 7:00 P.M. AGENDA INTRODUCTORY PROCEEDINGS Call to order Roll call Open forum (15 minutes maximum) Each speaker is to keep their comment period to three minutes to allow sufficient time for ofhers. Comments are to be an opportunity to address the Council on items not on the agenda. Individuals who wish to address the Council must have registered prior to the meeting. Notes: Pledge of Allegiance Approval of minutes of (1) Special City Council Meeting of March 21, 2011; (2) Special City Council/Housing and Redevelopment Authority/Planning Commission Worksession of March 21, 2011; (3) Special City Council Worksession of March 22, 2011; and (4) Regular City Council Meeting of March 22, 2011 PRESENTATIONS 1. Presentation of Certificates of Appreciation to Miss Richfield Ambassadors and Junior Ambassadors (Council Memo No. 41) 2. Presentation of 2010 Food Safety Awards by Richfield Advisory Board of Health (Council Memo No. 42) 3. Annual meeting with Advisory Board of Health 4. Presentation of proclamation designating Earth Day/Arbor Month 5. Presentation regarding kick-off for new "Tobacco Free Grounds" park ordinance (Council Memo No. 38) COUNCIL DISCUSSION 6. Council discussion • Homeless Youth in Suburbia Forum -League of Women Voters (Karen Jenkins) • Installation of light shelves in Municipal Center • Hats Off to Hometown Hits Notes: AGENDA APPROVAL 7. Council approval of agenda CONSENT CALENDAR 8. 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 first reading of ordinance amending Zoning Code regulations related to setback encroachments for bay windows, placement of fences, certification requirements for massage therapy practitioners, size of permitted businesses in Neighborhood Commercial District, setbacks related to Two-Family District properties, medical clinics as permitted use in General Commercial District, sign permit expiration dates, number of temporary banner signs allowed, number of temporary sign permits permitted per year, and number of corrections and clarifications S.R. No. 76 B. Consideration of approval of agreement for management services with Wheel Fun Rentals, LLC to provide management services for Adventure Gardens Mini-Golf S.R. No. 77 C. Consideration of approval of bids in amount of $223,088.50 for audiovisual information display components in Richfield Municipal Center and award contract to Graybow Communications for training room and digital signage AV system project in amount of $90,096.46 and Alpha Video & Audio for control room and Council Chamber project in amount of $132,992.04 S.R. No. 78 D. Consideration of approval of canceling Tuesday, May 24, 2011 Regular City Council Meeting at 7 p.m. S.R. No. 79 E. Consideration of approval of Richfield Municipal Center change order report for aggregate net effect of reduction of $3,822 in items included within project budget S.R. No. 80 Notes: 9. Consideration of items, if any, removed from Consent Calendar Notes: PUBLIC HEARINGS 10. Public hearing regarding issuance of new on-sale intoxicating and Sunday liquor licenses for Richfield Hotel Associates d/b/a Ramada, 7745 Lyndale Avenue Staff Report No. 81 Notes: 11. Public hearing and second reading of transitory ordinance authorizing planning, design and rehabilitation of Logan Avenue Water Tower, 7420 Logan Avenue, and resolution authorizing summary publication of transitory ordinance Staff Report No. 82 Notes: RESOLUTIONS 12. Consideration of resolution providing for sale of $1,490,000 General Obligation Water Revenue Bonds, Series 2011A Staff Report No. 83 Notes: 13. Consideration of right-of-entry and standstill agreement for use of northern half of 7700 Pillsbury Avenue, former City Public Works Maintenance Facility, by Ron Clark Construction and Design Company Staff Report No. 84 Notes: 14. Consideration of resolution approving contract with International Association of Firefighters Local 1215 for contract period January 1, 2011 through December 31, 2011 Staff Report No. 85 Notes: 15. Consideration of disciplinary hearing for HKD Lo, Inc., d/b/a Jun Bo Chinese Restaurant, 7717 Nicollet Avenue, regarding resolution imposing civil enforcement for sale of alcohol to underage youth Staff Report No. 86 Notes: 16. Consideration of resolution denying renewal of 2011 on-sale intoxicating and Sunday liquor licenses for HKD Lo, Inc. d/b/a Jun Bo Chinese Restaurant, 7717 Nicollet Avenue Staff Report No. 87 Notes: OTHER BUSINESS 17. Discussion regarding City Council's desired approach to notify public about Community Services Commission recommended skate park concept for Augsburg Park Staff Report No. 88 Notes: CITY MANAGER'S REPORT 18. City Manager's report • Fire Chief retirement and replacement (Council Memo No. 44) Notes: 19. Claims and payrolls Open forum (additional 15 minutes if more time needed after first Open Forum and by majority vote of the City Council) Each speaker is to keep their comment period to three minutes to allow sufficient time for others. Comments are to be an opportunity to address the Council on items not on the agenda. Individuals who wish to address the Council must have registered prior to the meeting. Notes: 20. Special City Council Closed Executive Session in Executive Conference Room regarding City Manager annual performance evaluation 21. Reconvene Regular City Council Meeting in Council Chambers RESOLUTION 22. Summary report of City Manager annual performance evaluation for 2010 and consideration of resolution amending employment agreement between City of Richfield and City Manager Steven L. Devich for 2011 Staff Report No. 89 Notes: 23. Adjournment Auxiliary aids for individuals with disabilities are available upon request. Requests must be made at least 96 hours in advance to the City Clerk at 612-861-9738. richfield: April 2011 Page 1 of 1 Calendars Net Navigate: 201_© Jan Feb Mar Apr May Jun J~~I Aug Sep Oct Nov Dec 20.12 Apri12011 I~~lc~~~c3a~° 4 ~'t~€~sda~- ~~'ec~ne~€f~ti Thurgda~° F~-~tcda~° L~ FF ~"CY.~i 2~~ ~~~ ~~ ~ :i ~~r 7PM Planning Commission '~ ~ ~i ~ 11:30a Richfield Tourism 7PM Transportation 7:OOp Arts Commission Promotion Board @ Commission Meeting @ 7000 Nicollet Avenue 6601 Lyndale Avenue, CANCELED Suite 106 7:OOp Human Rights Commission @ Community Center ~1 12 13 1~ 1`~ 5:30 PM Special City Council Worksession 7 PM Regular City Council Meeting i ~ 3 {~ 2 ~f 21 22 6:OOp Advisory Board of 7PM Community 7:OOp Friendship City Health Services Commisson Commission 6 PM Special HRA Meeting @ Community Worksession Center 7 PM Regular HRA Meeting 2~ ?f~ 27 2~ 29 5:30p Human Services 5:30 P.M. Special City Planning Council Council Worksession 7:OOp Planning Commission 7PM City Council Meeting Display: Year Month Week Day Block List Concienseci Abs Slide Calendars: Search Acid Events: Daily Duration Periodic Administer: This Calendar All meetings held at City Hall (6700 Portland Avenue) unless indicated otherwise Calendars Net free online interactive web calendars http://www.my.calendars.net/richfield 4/7/2011 CITY OF RICHFIELD, MINNESOTA . Office of City Manager April 7, 2011 Council Memorandum No. ~_3~9 _ The Honorable Mayor. and Members of the City Council Subject: Former Kmart Site Redevelopment Proposal (Worksession Agenda Item No.1 ) Council Members: On April 12, 2011, Steve Wellington of Wellington Management, Inc. will be attending the City Council Worksession to discuss a preliminary proposal for the redevelopment of the former Kmart site located at the northeast corner of 66th Street and Lyndale Avenue. Res u submitt , e L. Devi City Manager SLD:cak . Email: Department Directors Assistant to the City Manager CITY OF RICHFIELD, MINNESOTA Office of City Manager April 7, 2011 Council Memorandum No. 40 The Honorable Mayor and Members of the City Council Subject: Discussion regarding Intercity Regional Trail and Mn/DOT Projects (Worksession Agenda Item No. 2 & ~ Council Members: At the Council Workession on April 12, 2011 the following topics will be discussed: 1. Three Rivers Park District's staff will attend the worksession to discuss the details of the Intercity Regional Trail, proposed alignment and public involvement process. 2. Staff will present a synopsis of three projects that, Mn/DOT is proposing- for November 2012 letting. The projects are as follows: a. Bituminous mill and overlay of I-494 from approximately France Avenue to 34th Avenue. b. Construction of an auxiliary lane on westbound I-494 starting at I-35W and ending with tie into the existing auxiliary lane at France Avenue. c. The replacement of the existing Xerxes Avenue Bridge over 1-494. Staff will discuss several key issues involved with these projects and how they impact past and future projects along the corridor. Please contact Mike Eastling, Public Works Director, at 612-861-9792 with questions. Manager SLD:cak Email: Department Directors Assistant to the City Manager CITY COUNCIL MEETING MINUTES Richfield, Minnesota ' ~ Special City Council Meeting Advisory Board/Commission Applicant Interview March 21, 2011 CALL TO ORDER The meeting was called to order by Mayor Goettel at 5:27 p.m. ROLL CALL MEMBERS PRESENT: Debbie Goettel, Mayor; Sue Sandahl; Fred Wroge; and Tom Fitzhenry. MEMBERS ABSENT: Pat Elliott The City Council unanimously approved the absence of Council Member Elliott. INTERVIEW OF APPLICANTS The City Council conducted an interview of the following applicants for appointment to City Advisory Boards and Commissions: Andrew C. Berg ADJOURNMENT The meeting was adjourned by unanimous consent at 5:39 p.m. Date Approved: April 12, 2011 Debbie Goettel Mayor Cheryl Krumholz Recording Secretary Steven L. Devich City Manager J SPECIAL CITY COUNCIL/HOUSING AND REDEVELOPMENT AUTHORITY/PLANNING COMMISSION WORKSESSION MINUTES Richfield, Minnesota March 21, 2011 CALL TO ORDER The meeting was called to order by Chair Sandahl at 5:45 p.m. ROLL CALL Council Members Debbie Goettel, Mayor; Fred Wroge, Tom Fitzhenry, and Sue Sandahl Present.' Council Members Pat Elliott Absent: HRA Members Sue Sandahl, Chair; Joan Helmberger, Debbie Goettel, Doris Rubenstein Present: (arrived at 6:40 p.m.) and Steven Quam Planning Commission Maureen Scaglia, Tom Rublein, Rick Jabs, Joshua Root, Robert Hall, Members Present: Dennis Schuller, Daniel Kitzberger Planning Commission Gordon Vizecky Members Absent: Staff Present: Steve Devich, Executive Director; John Stark, Community Development Director; Bill Fillmore, Municipal Liquor Operations Director; Christine Costello, Community Development Coordinator; and Nancy Gibbs, City Clerk. The City Council unanimously agreed to excuse Council Member Elliott. Item #1 DISCUSSION REGARDING THE CORNERSTONE GROUP PROPOSAL FOR LYNDALE GARDEN CENTER SITE Colleen Carey, President of The Cornerstone Group and Beth Pfeifer, Director of Development, discussed their proposal for the Lyndale Garden Center site. Chair of HRA/Council Member Sandahl thanked The Cornerstone Group and stated her support for the project. HRA Commissioner Member Quam stated he is very supportive of the project at this point. Special Counil/HRA/Planning Commission Meeting -2- March 21, 2011 Item #2 DISCUSSION REGARDING 301 WEST 77T" STREET -VACANT CANDLEWOOD PARCEL Tom Woods, owner of Richfield Bloomington Honda, Tim Carter, General Manager of Richfield Bloomington Honda and Mark Balay, architect from Balay Architects, discussed proposed plans for the Candlewood parcel. George Sherman, owner of Sherman Associates, Ryan Sailer, Development and Project Manager, and Collin Kaas, architect from Kaas Wilson Architects, presented their proposed plans for the Candlewood parcel. ADJOURNMENT The meeting was adjourned by unanimous consent at 6:57 p.m. Date Approved: April 12, 2011 Debbie Goettel Mayor Nancy Gibbs City Clerk Steven L. Devich Executive Director J CITY COUNCIL MINUTES Richfield, Minnesota Special Worksession March 22, 2011 CALL TO ORDER The meeting was called to order by Mayor Goettel at 5:30 p.m. ROLL CALL Council Members Debbie Goettel, Mayor; Fred Wroge; Sue Sandahl; and Tom Present: Fitzhenry. Council Members Pat Elliott Absent: Staff Present: Steven L. Devich, City Manager; John Stark, Community Development Director; Mike Eastling, Public Works Director; Jim Topitzhofer, Recreation Services Director; and Cheryl Krumholz, Recording Secretary. The City Council unanimously agreed to excuse Council Member Elliott from the worksession. Item # I DISCUSSION BY RICHFIELD CHAMBER OF COMMERCE REGARDING ECONOMIC DEVELOPMENT Item #2 DISCUSSION BY THE RYAN COMPANIES REGARDING INTEREST IN MCDONALDS'S RESTAURANT AT CEDAR POINT Tim Carter and Pat Brekken, Richfield Chamber of Commerce, reported on conclusions and future initiatives resulting from meetings with stakeholders and identifying ways the Chamber could help stimulate or facilitate development activity. Mark Kampmeyer, The Ryan Companies, reported on McDonald's interest in developing a restaurant in the Cedar Point shopping area. Mayor Goettel stated the discussion with the neighborhood indicated a preference for asit- down type restaurant, not fast food. McDonald's is great for community support but there may be a desire to wait. Council Member Sandahl, Council Member Fitzhenry and Council Member Wroge expressed desire to move forward and continue discussions. Colleen Cary, The Cornerstone Group, discussed the proposed redevelopment of the former Lyndale Garden Center site, including the need for financial assistance and fair and reasonable conversations to reach common goals. Special Worksession Minutes -2- March 22, 2011 Mike Swenson, Michael Development, discussed the status of the Lyndale Commons redevelopment at 64th Street and Lyndale Avenue, including HUD financing. Representatives of O'Reilly Automotive discussed proposed plans for a retail Auto Parts store at 66th Street and 12th Street, including variances needed from the city, which impact the progression of the project. Community Development Director Stark explained the redevelopment process related to financial, planning and regulatory (land use). He discussed the status of legislation for variances. He also discussed the planned unit development (PUD) size restrictions. The City Council consensus was to have staff review the PUD requirements to permit a small parcel PUD. Jon Lenander, CVS Pharmacy, provided a status update on the proposed CVS project at 66tH Street and Penn Avenue. He added CVS is looking for a second site in Richfield. Mr. Brekken reported on the recent Menards purchase of the Jun Bo Restaurant site, 77th Street and Nicollet Avenue, but that Menards indicates no future plans have been determined. Steve Lindgren, Chamber president, discussed a possible revision to the redevelopment process, including partnering with the Chamber to encourage developers to come to the Chamber with proposed projects. Mayor Goettel suggested this be discussed at a future worksession. Mr. Lindgren discussed conducting an economic development summit. John Bjostad, Richfield Visions representative, stated Visions is being revitalized and could be the catalyst and sponsor for a summit as it unfolds. ADJOURNMENT The meeting was adjourned by unanimous consent at 6:52 p.m. Date Approved: April 12, 2011 Debbie Goettel Mayor Cheryl Krumholz Recording Secretary Steven L. Devich City Manager _~ CITY COUNCIL MEETING MINUTES Richfield, Minnesota Regular Meeting March 22, 2010 CALL TO ORDER The meeting was called to order by Mayor Goettel at 7:00 p.m. ROLL CALL Members Present: Debbie Goettel, Mayor; Sue Sandahl; Fred Wroge; and Tom Fitzhenry. Members Excused: Pat Elliott Staff Present: Steven L. Devich, City Manager; Mike Eastling, Public Works Director; Barry Fritz, Public Safety Director/Chief; Jim Topitzhofer, Recreation Services Director; John Stark, Community Development Director; Jeff Pearson, Transportation Engineer; Pam Dmytrenko, Assistant to City Manager; Corrine Heine, City Attorney; and Cheryl Krumholz, Recording Secretary. M/Wroge, S/Sandahl to excuse Council Member Elliott from the March 22, 2011 Regular City Council Meeting. Motion carried 4-0. OPEN FORUM None. PRESENTATION OF COLORS AND PLEDGE OF ALLEGIANCE Mayor Goettel led the audience in the Pledge of Allegiance. APPROVAL OF MINUTES Council Meeting Minutes -2- March 22, 2011 M/Sandahl, S/Wroge to approve the minutes of (1) Special City Council/Richfield School Board Worksession of March 7 2011 and (2) Regular City Council Meeting of March 8, 2011. Motion carried 4-0. Item #1 PRESENTATION OF RICHFIELD POLICE CANINE, IZZY, AND POLICE CANINE PARTNER, OFFICER GREG PETERSON Todd Sandell, Deputy Director/Deputy Chief, introduced Izzy and Officer Peterson and presented a Richfield Police Department badge for Izzy. Item #2 PRESENTATION OF 2010 POLICE OFFICER OF THE YEAR AWARD TO CITY OF RICHFIELD POLICE OFFICER BILL STANGER Public Safety Director/Chief Fritz presented the 2010 Police Officer of the Year Award to City of Richfield Police Officer Bill Stanger. Item #3 PRESENTATION OF MOTHERS AGAINST DRUNKEN DRIVING (MADD) CERTIFICATE FOR OUTSTANDING LAW ENFORCEMENT SERVICES TO POLICE OFFICER BRAD DRAYNA Public Safety Director/Chief Fritz presented the Mothers Against Drunken Driving (MADD) certificate for outstanding law enforcement services to Police Officer Brad Drayna. Item #4 PRESENTATION OF PROCLAMATION DESIGNATING MARCH 23, 2011 AS "WE CARE DAY" IN RICHFIELD Mayor Goettel read and presented the proclamation designating March 23, 2011 as "We Care Day" in Richfield. Item #5 PRESENTATION OF 494 CORRIDOR COMMISSION ANNUAL REPORT Melissa Madison, representative, presented the 494 Corridor Commission Annual Report. Item #6 PRESENTATION OF PENN CENTRAL ANNUAL REPORT (STAFF REPORT NO. 64) David Gepner, 6845 Penn Avenue, presented the Penn Central Annual Report. Council Meeting Minutes -3- March 22, 2011 Item #7 COUNCIL DISCUSSION • HATS OFF TO HOMETOWN HITS Willie Kusnier, Richfield resident, addressed the City Council regarding his Eagle Scout badge project of collecting dental hygiene products for St. Joseph's Home for Children. Council Member Fitzhenry announced the kick-off for the Beyond the Yellow Ribbon Campaign. Council Member Fitzhenry acknowledged the emergency response to the 60th Street and Nicollet Avenue gas line explosion last week. Council Member Sandahl discussed a recent Star Tribune Minnesota Explorer "10 Great Places to Explore" article that lists Wood Lake Nature Center. Mayor Goettel announced the upcoming Real Estate Forum -Richfield Today in the Richfield School District Board Room. Mayor Goettel introduced the new Richfield Sun Current editor, Billie Jo Rassat. Item #8 COUNCIL APPROVAL OF AGENDA M/Wroge, S/Fitzhenry to approve the agenda. Motion carried 4-0. Item #9 CONSENT CALENDAR A. Consideration of approval of first reading of transitory ordinance authorizing planning, design and rehabilitation of Logan Avenue Water Tower, 7420 Logan Avenue, at estimated cost of $800,000 and scheduling public hearing and second reading for April 12, 2011 S.R. No. 65 B. Consideration of approval of authorizing letter of support to Three Rivers Park District to submit 2011 Legacy Grant to fund portion of Intercity Regional Trail through Taft Park S.R. No. 66 C. Consideration of approval of resolution supporting The Cornerstone Group submittal of application to Hennepin County for Transit Oriented Development Program grant funds for redevelopment acquisition associated with 6400 Lyndale Avenue (Lyndale Garden Center) redevelopment project S.R. No. 67 RESOLUTION NO. 10493 RESOLUTION SUPPORTING THE CORNERSTONE GROUP'S SUBMITTAL OF AN APPLICATION TO HENNEPIN COUNTY FOR TRANSIT ORIENTED DEVELOPMENT PROGRAM GRANT FUNDS FOR LYNDALE AVENUE SOUTH This resolution appears as Resolution No. 10493. Council Meeting Minutes -4- March 22, 2011 D. Consideration of approval of 2011 agreement with Hennepin County Human Services and Public Health Department and City of Richfield Police for Police Cadet position S.R. No. 68 E. Consideration of approval of 2010-2013 contract with Minnesota Department of Public Safety/Homeland Security and Emergency Management relating to Citizen Corps Program and Community Emergency Response Team (CERT) S.R. No. 69 RESOLUTION NO. 10494 RESOLUTION APPROVING THE CONTRACT BETWEEN THE MN DEPARTMENT OF PUBLIC SAFETY/HOMELAND SECURITY AND EMERGENCY MANAGEMENT (HSEM) AND THE CITY OF RICHFIELD PUBLIC SAFETY DEPARTMENT/POLICE CERT PROGRAM RELATING TO THE STATE'S CITIZEN CORPS PROGRAM This resolution appears as Resolution No. 10494. F. Consideration of approval of renewing 2011/2012 auction service contract with Adesa Minneapolis for auctioning forteited vehicles from Public Safety/Police S.R. No. 70 G. Consideration of approval of Richfield Municipal Center change order report for aggregate net effect of $88,502 in items included in project budget S.R. No. 71 M/Goettel, S/Wroge to approve the Consent Calendar. Motion carried 4-0. Item #10 CONSIDERATION OF ITEMS, IF ANY, REMOVED FROM CONSENT CALENDAR None. Item #11 PUBLIC HEARING REGARDING RESOLUTION GRANTING FINAL APPROVAL OF PLAT FOR 6528 PENN AVENUE (STAFF REPORT NO. 72) Mayor Goettel presented Staff Report No. 72. M/Wroge, S/Fitzhenry to close public hearing. Motion carried 4-0. M/Goettel, S/Wroge that the following resolution be adopted and that it be made part of these minutes: RESOLUTION NO. 10495 RESOLUTION GRANTING FINAL APPROVAL OF A PLAT FOR 6528 PENN AVENUE Motion carried 4-0. This resolution appears as Resolution No. 10495. Council Meeting Minutes -5- March 22, 2011 Item #12 CONSIDERATION OF SECOND READING OF ORDINANCE AMENDING RICHFIELD CITY CODE SECTION 925 BY ADDING NEW SUBSECTION RELATED TO VACANT BUILDINGS AND RESOLUTION AUTHORIZING PUBLICATION OF ORDINANCE BYH TITLE AND SUMMARY (STAFF REPORT NO. 73) Council Member Wroge presented Staff Report No. 73. Council Member Wroge expressed support for the ordinance because it gives staff the ability to deal with blighted properties. Mayor Goettel spoke in support of the ordinance because of the high number of foreclosures and negligent properties. Council Member Sandahl expressed support for the project because it addresses the properties with maintenance concerns. Council Member Fitzhenry spoke in support because it should make it easier to track property owner. Steven Lindgren, Richfield Chamber of Commerce President, requested the City Council consider letting the realtor in the audience address them with their concerns. Bill Gerst, Minnesota Area Association of Realtors, expressed concern regarding the re- inspection before occupancy when a property is declared vacant, demolition language and no exceptions (except snowbirds) for having a building vacant. Council Member Wroge stated there is no issue if the property is properly maintained and managed. Public Safety Director/Chief Fritz explained the re-inspection is essentially the same as the current point-of-sale inspection. He added demolition is not likely but is an option if the owner is uncooperative or there are extreme circumstances. Public Safety Director/Chief Fritz stated the proposed ordinance is presented, at the City Council's request. John Periard, St. Paul Realtors Association, encouraged the City Council to allow more time for review of the ordinance. He stated concerns regarding the demolition language and believed the handling of maintenance issues is already addressed in current ordinances. City Manager Devich stated the City needs an effective ordinance to deal with property maintenance issues. City Attorney Heine explained the demolition is the option in the worst possible scenario, if warranted. Pat Paulsen, realtor, 62~d Street and Vincent Avenue, expressed concern regarding the demolition language and enforcement. He requested more time for review. Richfield resident (did not sign Speakers Register and address not given) stated she owns rental property and fixes up and sells properties and questioned having one category for all properties as well as the vacancy time frame. Council Meeting Minutes -6- March 22, 2011 Public Safety Director/Chief Fritz explained the City could waive a registration fee if a plan is provided on the property. M/Sandahl, S/Goettel that this constitutes the second reading of Bill No. 2011-11 amending Richfield City Code Section 925 by adding new subsection related to vacant buildings and that the following resolution be adopted and that it be made pat of these minutes: RESOLUTION NO. 10496 RESOLUTION APPROVING SUMMARY PUBLICATION OF BILL NO. 2011-11 Motion carried 4-0. This resolution appears as Resolution No. 10496. Item #13 CONSIDERATION OF 25-MPH CURVE LAYOUT ALTERNATIVE FOR RICHFIELD PARKWAY NORTH CONNECTION AS RECOMMENDED BY TRANSPORTATION COMMISSION (STAFF REPORT NO. 74) Council Member Fitzhenry presented Staff Report No. 74 Transportation Engineer Pearson reviewed the recommended layout. Jupe Hale, WSB & Associates, explained the property impacts of a shift in alignment with the different alternatives. Council Member Wroge questioned sight lines. Mr. Hale explained the traffic is moving slower and slight lines can be controlled. Council Member Sandahl stated the layout is trying to keep traffic from the residential area by encouraging the use of Richfield Parkway as the connection to the retail center. Bernard Hurley, 6414 17th Street, spoke in opposition to the alternative because it placed more traffic on his street. Public Works Director Eastling explained the long-term plan for the area. Item #14 CONSIDERATION OF APPOINTMENT TO CITY ADVISORY COMMISSION (STAFF REPORT NO. 75) M/Sandahl, S/Goettel to appoint Andrew Berq to Friendship City Commission with term ending January 31, 2014. Motion carried 4-0. Item #15 CITY MANAGER'S REPORT • Installation of light shelves in Municipal Center City Manager Devich suggested discussion of the light shelves in the municipal center be postponed to the next City Council meeting so all City Council members can be present. Council Meeting Minutes -7- March 22, 2011 The City Council requested Steve Orfield, Orfield Associates, be invited to the City Council meeting to participate in the discussion regarding the light shelves. Council Member Sandahl stated she contacted Mr. Orfield and he stated the light shelves will extend light in the building and if he had known they may not be installed he would have recommended frosted glass in the upper windows. City Manager Devich stated the 2010 census data indicates an increase in Richfield's population. Assistant to the City Manager Dmytrenko provided an update on the airport mitigation program. Item #16 CLAIMS AND PAYROLLS M/Wroge, S/Sandahl that the following claims and payrolls be approved: U.S. Bank 3/22/2011 A/P Checks: 202051-202505 $ 2,169,644.75 Payroll: 73777-74095 $ 551,604.57 TOTAL $ 2,721,249.32 Motion carried 4-0. OPEN FORUM None. ADJOURNMENT The City Council meeting was adjourned by unanimous consent at 9:00 p.m. Date Approved: April 12 2011 Debbie Goettel Mayor Cheryl Krumholz Recording Secretary Steven L. Devich City Manager r CITY OF RICHFIELD, MINNESOTA Office of City Manager April 7, 2011 Council Memorandum No. 41 The Honorable Mayor and Members of the City Council Subject: Miss Richfield Ambassador Recognition (Council Agenda Item No. 1) Council Members: This year, there are 1'5 candidates for Miss Richfield Ambassador. The coronation is scheduled for Tuesday, July 5 at 7 p.m. in the Richfield High School auditorium,. There are 18 candidates for Richfield Junior Ambassador, with the coronation scheduled at Monday, July 4 at 6 p.m. at the. outdoor stage in Veterans Park. The attached biographies were provided by the Richfield Ambassador Committee. Certificates of Appreciation will be presented to current royalty and this year's candidates at the April 12, 2011 City Council meeting. Re pe submitted, teve evic Hager SLD:cak Attachment E-mail: Department Directors Assistant to the City Manager , 2010-2011 Richfield.Ambassadors ShayLee Bartelle, 8,is the daughter of Tal Bartelle and Keely Corbett. She has a younger sister, Taya, and attends third grade at Blessed Trinity. Shay dreams of being a veterinarian when she grownup. She plays basketball, loves to sing, read,. and bother her sister. To date, her favorite ambassador events have been the Salvation Army Bell Ringing and packing food with Kids Against Hunger. Mara LeBlanc is enjoying her last semester at Richfield High School. Next fall she will be attending Gustavus Adolphus College where she will study education. When she has free time Mara enjoys photography, writing, reading, and having a good time with friends. So far her favorite ambassador events have been Blair's Tree of Hope Kickball Tournament and Toys for Tots. Mara is the daughter of Ken and Rosemary LeBlanc, and sister of Katie and Jennifer. Erin Jones is the daughter of Scott and Sharon. She is a second grader at the Richfield STEM school. -Erin loves learning about science and technology and is in the math club. She enjoys playing with her sisters, Caitlin and Rosie, and brother Cameron. She loves being a Richfield Ambassador, attending community events and being in the parades. Baza Haile-Selassie is a senior at Richfeld High School. She has lived in Richfield her entire life with her parents Negussie Haile-Selassie and Almaz Abebe, along with her two older siblings, Fanna and Moguss. As an ambassador, her favorite events have been the Crisis Nursery and Back-to-School shopping with the Salvation Army. In her free time,. Baza enjoys hanging out with her friends and family, playing tennis, and volunteering with the Big Brothers Big`Sisters program as a mentor. Next year, Baza will be attending a 4-year university in the hopes of pursuing a career in International Business. Virginia Sanchez currently attends St. Mary's University in Winona where she participates in intramural sports and is a member of the student senate. She is majoring in social science. Her favorite ambassador events have included the candidate business day, the Hopkins and Winter Carnival parades, volunteering with Kids Against Hunger and the MN Crisis Nursery, the Cambridge coronation, and Royal Mud Stomp. In her free time Virginia enjoys swimming, reading, running, volunteering, rollerblading and spending time with loved ones. Virginia is the daughter of Alejandro & Virginia and the sister to Nataly and Alex. 2011-2012 Richfield Ambassador Candidates Madison Andrews, the daughter of Paul .and Cha~min Andrews, is a Junior at Richfield High School. In her spare time she enjoys listeriing to music and reading. She enjoys being active and participates in dancing, colorguard, tennis, nordic skiing and', golf. Madison believes that community service means helping. out and getting to know your community. She believes this can be done by volunteering at the community center, working with the elementary schools or helping out at concession stands at sporting events. She believes the important thing is to be involved and have fun. Molly Coughlin, the daughter of Amy and John Coughlin, is a Junior at Richfield High School. Molly works at the Potbelly Sandwich Shop in Richfield.. In her spare time she enjoys reading and doing projects. Molly is a drumline major in the Richfield marching band, and has been a member of 6 Honor Bands. She is also active in nordic skiing, volleyball, theatre, and softball. Molly believes that community service means appreciating and being, interested in your community's past, present and future by being an active participant in making your community better and helping other people. Molly believes it is important to appreciate your community. Bryann Guyton, the daughter of Laura and Bryan Guyton, is a Junior at Richfield High School. Bryann is very active and participates in many different sports throughout the year. Bryann believes that community service means getting involved and caring about our neighborhoods and helping those in need. She believes in leading by example and is willing to go above and beyond what is needed to always give a helping hand. She strives to set a positive example, is willing to put her own needs aside in order to help out another. Michelle Heinecke, the daughter of Deb and Darrell Heinecke, is a .Senior at Richfield High School. Michelle plans to attend the University of Wisconsin-Eau Claire in the Fall. Michelle is proud to be a life-long resident of Richfield. Michelle has a variety of interests including fine arts, athletics and academics. She is Captain of the swim team, a National Honor Society Officer, and an active participant in choir, student government and theatre. Michelle believes that community service means being involved, meeting new people and learning about one's community in order to help make it a better place. Rebecca Hendrickson, the daughter of Teri and Rick Hendrickson, is a Senior at Richfield High School. She plans to attend Concordia College in Moorehead in the Fall. Michelle works part-time at Holister at the Mall of America. Rebecca believes strongly in academics and is ranked #1 in her graduating class. Rebecca is the President of National Honor Society, was Co-Editor of her high school- yearbook and was Captain of her hockey steam during her Senior year after playing at the Varsity level throughout her high school years. Madison believes that community service means building relationships with others and truly making a difference in people's lives. Tasia Lueders, the daughter of Linda Lueders, attends Hamline University. Tasia works part-time at Bath & Body Works and Carpenter Estates. In her spare time she enjoys spending time with friends and volunteering. Madison believes that community service means helping in your community and being a part of it. She believes that a helping hand can be as small as picking up trash when she sees it or as big as helping to plan the Richfield 4'h of July celebration. She believes that helping out in her community is one of the most important things she does. Kathryn MacEachem, the .daughter of Patricia Ma'cEachem, is a Junior at Richfield High School. In her spare time she enjoys traveling. She has visited Europe several times, and had the privilege of attending the 2009 inaguaration of President Obama. Kathryn believes that community service means being involved and helping in one's community regardless of recognition because it makes you feel good. She believes that helping in one's community is the right thing to do and helps to create an identity for the community. Emily Mattila, the daughter of Elaine and Richard Mattila, attends St. Catherine University. Emily is very interested in learning about different cultures and loves the opportunity college has given her to develop a widely diverse group of friends. She believes in being open-minded and embracing the ability to create change. Emily believes that community service means making a positive contribution to one's local community that will spread out and make a difference to the community of the world, and that the meaning of community services differs from person to person. Jessica Martinez, the daughter of Efigenia Hernandez and Teodulo Martinez, is a Senior at Richfield High School. She plans to attend St. Catherine University in the .Fall. Jessica is bi-lingual, speaking fluently in both English and Spanish; she believes in being a good role model and finding a positive in every negative. Jessica believes that community service is her opportunity to give back, meet new people and make a difference in her community. She loves working with little kids, and being involved with different groups and organizations. Jessica believes that the more you do the greater impact you will make. Sarah Nygaard, the daughter of Jerry and Lisa Nygaard, is a Junior at Richfield High School. Sarah is proud to be a life-long resident of Richfield. She works part-time at Walgreens in Richfield. Sarah is the Captain of the nordic ski team, a member of the National Honor Society, a past member of the. cross country team and a student government nominee. Sarah believes that community service means giving back to the community in order to give the younger children the opportunity to enjoy Richfield and. all if has to offer. Julile Roti, the daughter of Dave Rotz; is a Senior at Richfield High School. Julie likes to be involved in many different things; she has participated in dance, soccer and softball. In school she has been involved in cheerleading, DECA and has volunteered for the blood drive. Julie believes that community service means giving back to the community by supporting the people that live in your community. She believes community is a place filled with people who you feel happy and safe around, and it is a place you call home. Eylani Sanchezi ,the daughter of Maria Salazar, is a Junior at Richfield High School. She works part-time at the Finish Line. Eylani believes that if you set your mind to anything you can do anything. She always likes to keep a smile on her face and be laughing. Eylani believes that community service means. finding opportunities to help others. She believes it is important to participate in activities that give opportunities to teenagers, and become involved in efforts to keep our community safe and a fun place to live. Stephanie Thammabenvong, the daughter of Kiang Naveunxay, is a Junior at Richfield High School. Stephanie describes herself as poised, confident and positive, and liking to stand-our by adding a kick of color and music to things when she can. Stephanie believes that community service means taking care of the community and having everyone help to keep the city clean, safe and fun for everyone. She believes community involvement is something that can bring people together to get involved in events in Richfield. Vanessa Uko, the daughter of Marcus and Priscilla Kalu, attends the University of Minnesota-Twin Cities. Vanessa is eager to help others and explore different things about other peoples' cultures. She loves volunteering, and describes herself as someone who is not afraid to give a helping hand to anyone. Vanessa believes that community service means helping out in all aspects of your town and having a willingness to learn new things about your'town. She believes one needs to be willing to get out of their comfort zone to help where help is needed in the community. Nimo Ahmed Mohamed, the daughter of Nuro Hersi, is a Senior at Richfield High School.. She works part-time at the Step-Up Program. Nimo describes',herself as being very honest - no matter what the situation she will always tell the truth. Nimo believes that community service means helping your community with whatever they need, and representing your community by being there with your energy and effort if something goes wrong. 2011-2012 Richfield Jr. Ambassador Candidates Jasmin Barrios-German, the daughter of Tracy Hernandez, is in 1St grade at Sheridan Hills Elementary School. Her favorite thing about the 4th of July is the fireworks and the parade. She is interested in becoming a Junior Ambassador so she can learn-more about her community and learn to speak in public. Samara Carlson, the daughter of Sarah Carlson and Dylan Corbett, is in Kindergarten at the STEM School. Her favorite thing about the 4th of July is fireworks, BBQ's, and parades with my family and friends. She is interested in becoming a Junior Ambassador so she can represent Richfield and help around. her community. Alison Carillo, the daughter of Jesus and Karin Carillo, is in 2nd grade at the Dual Language School. Her favorite thing about the 4th of July is the parade and celebrating independence day with fireworks. She is interested in becoming a Junior Ambassador because she likes to volunteer and help, and she likes to meet new friends. Naomi Craft, the daughter of Brandie and Ray Craft, is in 1 Sc grade at the STEM School. Her favorite thing about the 4th of July is the fireworks. She is interested in becoming a Junior Ambassador so she can be in the parade and ride on the float and wear a tiara. Isabella Hernandez, the daughter of Tracy Hernandez, is in Kindergarten at Sheridan Hills- . Elementary School. Her favorite thing about the 4th of July is the fireworks. She is interested in becoming a Junior Ambassador so she can have a new experience and learn about responsibility. Grace Johnson, the daughter of Tim and Kathy Johnson, is in 1St grade at the STEM School. Her favorite thing about the 4th of July is the fireworks, the carnival and the parade. She is .interested in becoming a Junior Ambassador because she likes wearing dresses and would like to be in a parade with the "big princesses". Holland Juell, the daughter of Dustin and Kazia Juell, is in 1St grade at the Dual Language School. Her favorite thing about the Ott' of July is seeing lots of friends at the fireworks in the park. She is interested in becoming a Junior Ambassador because she loves Richfield and making friends. Alisia McFarland, the daughter of Alex and Nicole Hart, is in 2nd grade at the STEM School. Her favorite thing about the 4th of July is watching her Grampa drive his motorcycle with the Shriners Riding Corp in the parade, BBQ's and celebrating with her family. She is interested in becoming a Junior Ambassador so she can do fun things and meet new people. Ariana Navarro, the daughter of Joleen and Felipe Navarro, is in Kindergarten at Sheridan Hills Elementary School. Her favorite thing about the 4th of July is spending time with friends and family, participating in races and other games, and the fireworks. -She is interested in becoming a Junior Ambassador because she enjoys meeting new people and being involved in her community. Isabella Norcross, the daughter of Jennifer and- Justin Norcross, is in 2nd grade at Centennial Elementary. School. Her favorite thing about the 4th of July is the fireworks. She is interested in becoming a Junior Ambassador because she wants to help people and being kind and show that she is a good citizen. Noelle Olson, the daughter of Andi and John Olson, is in 2"d grade at the STEM School. Her favorite -thing about the 4th of July is the girls waving on the floats and handing out things. She is interested in becoming a Junior Ambassador because it looks really fun and really cool. Tejas Ramanujam, the son of Roopa Raghavan, is in Kindergarten at the STEM School. His favorite thing about the 4th of July is most definitely the parade and the fireworks - it makes him happy to see them. He is interested in becoming a Junior Ambassador because he would get to meet new people, make friends and have lots of fun. Elizabeth Ryan, the daughter of Sarah Bushey, is in 1st grade at Sheridan Hills Elementary School. Her favorite thing about the 4th of July is the fireworks. She is interested in becoming a Junior Ambassador because she wants to help people and meet new people. Rachel Soberg, the daughter of Jodi Soberg, is in 2"d grade at Sheridan Hills Elementary School. Her favorite thing about the 4th of July is the parade,and watching the fireworks at Veterans Park. She is interested in becoming a Junior Ambassador because it is super fun and she likes meeting new people and helping out in any way I can. Lorelei Schwab, the daughter of Steve and Liza Schwab, is in 1st grade at Calvin Christian School. Her favorite thing about the 4th of July is the fireworks and the parade. She is interested in becoming a Junior Ambassador because she likes making new friends and thinks. it would be fun to see all sorts of events and cities and meet all the prinesses.. Ariana Wolterstorff,, the daughter of Rik and Laura Wolterstorff, is in Kindergarten at the Dual Language School. Her favorite thing about the 4t" of July is the booming fireworks. She is interested in becoming a Junior Ambassador because she loves being everywhere she goes in Richfield. Luke WolterstorFf, the son of Rik and Laura Wolterstorff, is in 2"d grade at the Dual Language School. His favorite thing about the 4th of July is the fireworks. He is interested in becoming a Junior Ambassador because he likes living in Richfield. Kyleigh Zent, the daughter of Kathy and Terry Zent, is in 2"d grade at the Blessed Trinity Catholic School. Her favorite thing about the 4th of. July is the fireworks but she also- likes the parade a lot. She !s interested in becoming a Junior Ambassador because it is really fun and I get to make new friends -that what's matters. CITY OF RICHFIELD, MINNESOTA Office of City Manager April 7, 2011 City Manager Council Memorandum No. 42 The Honorable Mayor and Members of the City Council Subject: 2010 Food Safety Awards Presented by the Richfield Advisory Board of Health (Agenda Item No. 2 ) Council Members: Attached is a summary of the steps and process that was used in determining the 2010 Richfield Food Safety Award nominees and winners. The Richfield Advisory Board of Health will be involved in this effort on an annual basis and believes it is important to place a priority on recognizing Richfield restaurants that are doing an excellent job of maintaining a food safe establishment. It is important for those successful establishments to be recoghized, but it also is a way to encourage other establishments to strive for the same outcome. The awards will be presented to the winners and nominees at the City Council meeting of April 12, 2011 by Jennifer Turrentine, .Chair of the Richfield Advisory Board of Health. Re I submitt A ,..,- ~ I SLD:cak Attachment Email: Department Directors Assistant to the City Manager Richfield Food Safety Awards - 2010 • Annual awards to acknowledge excellence in food safety and service -Focus on the good work that restaurants do rather than the bad. • Richfield Advisory Board of Health recommended starting a program in Richfield, similar to the existing award program in Bloomington -Began in 2006. • The health inspector nominates three (3) to four (4) candidates in three risk categories based on: • Food Collaborative Interviews • Inspection results. • Those categories are: full service (or large) restaurant, fast food/pizza/cafeteria service and retail grocery. • A team of interviewers visited each site together to conduct the interviews. These folks are members of the Richfield/Bloomington Food Collaborative and meet regularly with inspection staff and one another to discuss common interest areas. • Nominees were judged on how they manage risk factors on a daily basis, how the establishment encourages workers to be continually motivated about serving safe food, whether they can list five critical factors that affect food safety, have, procedures in place when they receive customer complaints about customers feeling ill after having eaten there, what is the establishment's policy when an employee shows up for work with obvious symptoms of illness, a description of food safety training programs and policies, management's overall commitment to food safety and rating of the physical appearance of the establishment at the time of the interview. The results are provided to the Richfield Advisory Board of Health and they present the awards to the winners and nominees at a City Council meeting. CITY OF RICHFIELD, MINNESOTA Office of City Manager March 31, 2011 Council Memorandum No. 38 The Honorable Mayor and Members of the City Council Subject: Kick-Off for New Park Ordinance Council Members: City Council passed an amendment to the City's Park Ordinance on September 28, 2010, introducing additional park rules including a comprehensive restriction of the use of tobacco, no feeding of wild animals, damaging vegetation and a restriction on the selling of products or services in parks. The revised ordinance was effective January 1, 2011, but park signage replacement was scheduled for April due to winter conditions. Now that spring is about to arrive, new updated park signs will be installed in all Richfield parks. In addition, "Tobacco Free Grounds" signs will be installed in all parks having scheduled athletic activities. Beginning April 1, a promotional campaign will begin to help the community become more aware of the new ordinance. Press releases will be sent to our local media outlets. Public service announcements will be broadcasted on our local cable television channel and City websites, networking sites and publications will be updated. Public Safety and Recreation staff will receive training on the new ordinance and will be equipped with business cards containing information about the new park rules. Mayor Goettel will be giving a presentation to Council at their next meeting on April 12, as part of the promotional campaign. SLD:kIp Email: Department Directors Assistant to the City Manager AGENDA SECTION: CONSENT AGENDA ITEM # 8A REPORT # 76 ~1 STAFF REPORT CITY COUNCIL MEETING APRIL 12, 2011 REPORT PREPARED BY: DEPARTMENT DIRECTOR REVIEW: REVIEWED BY CITY MANAGER: NAME, TITLE SIGNATURE ITEM FOR COUNCIL CONSIDERATION: First reading of an ordinance amending Zoning Code regulations related to: setback encroachments for bay windows, placement of fences, certification requirements for massage therapy practitioners, the size of permitted businesses in the Neighborhood Commercial (C-1) District, setbacks in relation to Two-Family (MR-1) District properties, medical clinics as permitted in use in the General Commercial (C-2) District, sign,'permit expiration dates, number of temporary banner signs allowed, number of temporary sign permits permitted per year and a number of corrections and clarifications. I. RECOMMENDED ACTION: By Motion: Conduct a first reading of an ordinance amending Subsection 509.11; 509.15, Subdivisions 3 aid 10; 509.21, Subdivision 11; 512.07; 512.09; 514.5, Subdivision 5; 514.13, Subdivision 2; 518.13, Subdivision 2; 522.13 Subdivision 2; 532.03, Subdivisions 4, 5 and 6; 532.111; 534.07, Subdivision 9; 534.11; 537.03, Subdivision 1; 537.13, Subdivision 2; 544.13 Subdivision 5; 544.13, Subdivision 6; 544.25, Subdivision 3; 549.21, Subdivisions 4 and 5; and 549.23, Subdivision 2; adding new 549.1'9; and repealing 507.07, Subdivision 122; and 549.23, Subdivision 3 of the Ci Code. II. BACKGROUND City staff continually monitors and notes areas of the Zoning Code that may require review. This review may be the result of changes in State Law or its interpretation, MELISSA POEHLMAN, CITY PLANNER '~ 041211 - 1st Reading -Misc. Zoning Text Amendments changes in social norms, new technology or direct experience with a particular regulation. The changes proposed in the attached ordinance are relatively minor; most constituting a correction, clarification or extension of existing policy. A summary of the proposed changes follows: Proposed Ordinance Changes: Bay windows (Section 1) -The Code currently allows window wells to project into required setbacks. The proposed change will allow bay windows to do the same. Fence/wall combinations (Section 2) -The Code currently states that when fences are used in combination with walls or berms, the combined height may not exceed allowable height limits. The proposed change defines "used in combination" as fences placed within three feet of a wall Obsolete reference removed (Section 3) -Reference to landscape standards "on file" removed; all landscape requirements are within the Code. Massage therapy as home occupation (Section 4) -The proposed change adds acceptable certifications for massage therapy providers, thereby allowing massage therapy as a home business. This change was made at the direction of the City Council. Clarifying information added to use tables (Sections. 5, 6 and 15) -The proposed change adds definition information to "hotel or motel" and "multi-family dwellings" listings. See the Section 13 explanation below for information regarding the "medical clinics" strikethrough. Swimming pool location (Section 7) -The proposed change adds the provision prohibiting pools in front yards to the Zoning Section of the Code for ease of use. This regulation is already in place; however, currently it is only listed in Section 420. Height definition reference added (Sections 8, 9 and 10) - A specific numerical reference to the definition of "height" for residential structures has been added. Neighborhood service, office and day care businesses in the C-1 District (Section 11) -Currently, the maximum permitted size of a service or office business in the C-1 (Neighborhood Business) District is 2,500 square feet. This is smaller than what is currently allowed in the SO (Service Office) District -the least intensive of the commercial districts. The proposed change will allow businesses of up to 4,000 square feet, just as the Service Office District does. The proposed change also increases the size of permitted day care facilities from 3,000 square feet to 4,000 square feet based on a comparison of parking requirements in relation to office and/or service businesses. This change does not exempt businesses from any requirements related to setbacks, parking etc. Setbacks from Two-Family Residential properties (Sections 12 and 14) - Currently, commercial setbacks are larger when the property line in question abuts a Single-Family Residential (R and R-1) property, as opposed to any other district. The proposed change will increase setbacks when commercial development takes place next to Two-Family Residential (MR-1) properties as well. The reasoning being that Two-Family Residential properties have more in common with single- family properties than with larger residential complexes or commercial developments. Medical clinics in General Commercial (C-2) District (Section 13) -Currently, hospitals and medical clinics are conditionally permitted in the C-2 District. Staff believes that the intent of this regulation was to more carefully regulate hospitals and other 24-hour facilities as opposed to any medical clinic, and the ordinance has been change to reflect this. Correct language errors in the nonconformity regulations (Section 76) -This subdivision relates to bulk and dimensional expansion of nonconformities, but currently references "uses" rather than "buildings." A similar section already exists for nonconforming use expansion. This is a correction of terminology only. Parking lot setback standards in Mixed Use Districts (Section 17) -When the Mixed Use Districts were added to the Zoning Code, a reference to the parking setback requirements should have been added to the Performance Standards Subsection of the Code as well. The proposed change will no specifically list "mixed use." Off-street parking table clarifications (Section 18) -The proposed change will clarify the parking .determination method for uses not listed, add "gas stations" to the table of uses and recalculate retail parking requirements' with the same denominator to facilitate comparison. Remove contradictory language related to antenna permits (Section 79) - Currently, the Code states that replacement of antenna elements is both exempted from permits and requires a permit. Historically, replacement of antennas has required a permit and the Chief Building Official believes that it is important to continue this practice. The proposed change corrects the contradiction by removing "replacement" from the exemption subdivision. Sign permit expiration (Section 20) -Currently, zoning and building permits expire one year following issuance. An expiration date is not explicitly stated for sign permits. The proposed change will add the one-year expiration date to the sign permit section of the Code. Banner clarifications (Section 21) -Historically, the City has allowed one banner per tenant in amulti-tenant building. The per tenant provision was inadvertently removed as part of the 2007 Code rewrite and is proposed to be restored. Previously, the Code also limited the display of temporary banners to seven days, four times per year. The existing Code allows a banner to be displayed for 28 days, but is silent on the number of times per year that an app~icant can apply for a permit. This has led to confusion and questions of whether or not taking down a banner for 1 day entitles the applicant to another 28 days of display time. The proposed change will add back the limitation of four permits per year (these permits can be consecutive). Reference to sight triangle regulations (Section 22) -The proposed change adds a numerical reference to sight triangle regulations to the Sign Subsection of the Zoning Code. Wall signs (Section 23) - Similar to the provision related to banners, the City has historically calculated allowable wall sign size in multi-tenant buildings based on the portion of the exterior wall that is occupied by each tenant. The 2007 Code rewrite also removed this stipulation. Under the existing Code, a single tenant could potentially use up all the allowable wall signage and prohibit other tenants from advertising. Remove obsolete/redundant regulations (Section 24) -Remove Subsection 507.07, Subdivision 122 defining "Transitional Activity." The City issues Interim Use Permits now, rather than Transitional Activity Permits. Subsection 549.23, Subdivision 3 discusses sign regulation in Planned Unit Developments (PUD). This language is confusing and redundant as PUD signage requirements are discussed specifically in the Sign Section of the Code. III. BASIS OF RECOMMENDATION A. POLICY The regulations of the Zoning Code are intended to promote harmonious relationships among land uses and to ensure that public and private lands ultimately are used for the purposes that are most appropriate and beneficial from the standpoint of the City as a whole. • Ongoing review and periodic updating of the Code is necessary to ensure that regulations are serving their intended purposes. B. CRITICAL TIMING ISSUES • N/A C. FINANCIAL • N/A D. LEGAL • A .public hearing was held before the Planning Commission on March 28, 2011. • Notice of the public hearing was published, in the Sun Current in accordance with State and Local requirements. • The Planning Commission recommended approval of the proposed amendments (7-0). • A second reading is scheduled for April 26, 2011 E. ENVIRONMENTAL CONSIDERATIONS • N/A IV. ALTERNATIVE RECOMMENDATION~S~ • Approve a first reading with changes to the proposed ordinance. • Deny a first reading of the proposed ordinance. V. ATTACHMENTS • Ordinance VI. PRINCIPAL PARTIES EXPECTED AT MEETING • None ~~ BILL NO. AMENDMENT TO RICHFIELD CITY CODE RELATED TO ZONING AMENDING 509.11; 509.15, SUBDIVISIONS 3 AND 10; 509.21, SUBDIVISION 11; 512.07; 512.09; 514.5, SUBIDIVISION 5~ 514.13, SUBDIVISION 2; 518.13, SUBDIVISION 2; 522.13, SUBDIVISION 2; 532.03, SUBDIVISIONS 4, 5 AND 6; 532.11; 534.07, SUBDIVISION 9; 534.11; 537.03, SUBDIVISION 1; 537.13, SUBDIVISION 2; 544.13, SUBDIVISION 5; 544.13, SUBDIVISION 6; 544.25, SUBDIVISION 3; 549.21, SUBDIVISIONS. 4 AND 5; AND 549.23, SUBDIVISION 2; ADDING NEW 549.19; AND REPEALING 507.07, SUBDIVISION 122; AND 549.23, SUBDIVISION 3 THE CITY OF RICHFIELD DOES ORDAIN: Section 1 Subsection 509.11, Clause c) of the Richfield City Code is amended to read as follows: c) Principal building window wells and bay windows, provided they project not more than 36 inches into a required yard.. In no event shall they be closer than 24 inches from any lot line; Section 2 Subsection 509.15, Subdivision 3, Clause c) of the Richfield City Code are amended to read as follows: c) Whenever a fence Brand wall +sare used in combination, or placed upon a berm, the combined height shall not exceed the permitted heights outlined in paragraphs a) and b) above. For the purposes of this clause, fences olaced within 3 feet of a berm or wall shall be considered to be used "in combination" with said berm or wall. Section 3 Subsection 509.15, Subdivision 10 of the Richfield City Code is amended to read as follows: Subd. 10. Required screening. Any fence or wall required as a screening device shall be constructed of decay resistant materials that provide screening to the extent required by +ho Dinhfiolr! I ~n.dcnor~o D~n~ iiromor~4c nn file ~~ii~h +ho (lffinc _f (`_mmi ini~v flo~iolnr~mcnf thlS Code. Section 4 Subsection 509.21, Subdivision 11, Clause c of the Richfield City Code is amended to read as follows: c) The practice of medical, dental, chiropractic, psychiatric, or other similar treatment or therapy, including acupuncture, where the person(s) providing such treatment or therapy is not licensed by the State of D~~~ Minnesota to administer such treatment or therapy; or in the case of massage therapy, where the person(s) providing such treatment is not certified by the "National Certification Board for Therapy Massage and Bodywork" or by the "Massage and Bodywork Licensing Examination." Section 5 Subsection 512.07 of the Richfield .Code is amended to read as follows: 512.07. Permitted, Conditional, Accessory and Prohibited Uses in Commercial Districts. The following table summarizes which land uses are classified as permitted, accessory, conditional or prohibited in the Commercial Districts. Refer to Sections 529 through 534 for complete regulations. P: Permitted A: Accessory C: Conditional N: Null or not Permitted Land Use S-O C-1 C-2 Adult businesses N N P Animal kennels N N P Apartments within a A A/C C :commercial buildin ............................................................................................................9............................................... ............................ e ...................................... ......................................... Assembly, light N N A manufacturin warehouse ....................................................................._9_~...................................................................................... ......................................... ..................................... ............._...................... Auction houses ..................................................... . N ...................................... N ~.........................................a P ................._......... _ .................................................................................................................. . Auto mechanical /body N N C :repair : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : Auto detailin N N C Auto or boat sales N N C Auto stereo installation N N P service Auto washes N N C Barber_or beauty_shops....... _ .....P/C P/C P/C Bicycle_stores .................................. N P/C P/C .. Bic cle re air sho s P/C P/C P/C Bowlin.9..._alleys .................................. ....................................... ................. .. N _..... ,.._ N ..............._....................o P ..................~............... Ca.r......et or ......ain_t _stores ............................ p p N _ _ _P/C.. _P/C...... Cemeteries N N C Convenience store N P P Dance or physical culture P P P studios . ~._........................ .................._.._................e ..................._.....................; ........................................................................................................... Da care facilities .. y ~..~ .~ C ~_........ : P ..................... .....: P ...................... Drug stores without drive-up N P/C P/C facility .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8~-3 : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . Land Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S-O . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : C-2 Drug stores with drive-up N N C window Emer enc shelter ............_~ ............... y ................... N , N .......... C ~.............................. .....Enclosed:..storage .................................................................. ...............A A At A Fences, walls and..._hed9.eS ........................ ._............A ....... A ...... A _... ..................: Financial institutions without N N P drive-up service Financial institutions with N N C drive-u service _p ......................................................................... _ ................. ................................. .............................. Firearms related uses N N C Fortune tellin g. ........................................................................................ N .........................................: N ................................... P ;.........................................: Funeral homes, mortuaries N N C Furniture or appliance stores ;.. . _ N . P/C P/C ;Governmental buildings P P P _GrocerY.._stores ......................................... ~ ...............:N , P/C............ . ..........P/C Hospital or 24- P/C P/C P/C hour urgent care Hotel or motel 6 or more N N C :units _J_u_n_k....yard .................................................................................................................. ..............._N................. ................ N................ N ..................................... Libraries, public P P P Li uor store munici al 9 .................................................. ~........................................_p..................................................... N .......................................... N ......................................... P ...........................................; Nursin home _g............ P ................................. P ....................................... N ......... . Office, single-tenant - P/C P/C P/C professional, executive or business Office, multi-tenant - P/C P/C P/C professional, executive, or business Outdoor merchandising or N N N storage (except as allowed by Section 1135 of the City Code.) ........................................... _ ......... _ ..._Parkin.g ............................................................................................................................. ........._A ....... _ ................... Pawn shops & second hand N N C ;goods dealers licensed under Section 1186 or 1187 of the Cit Code _y ............................................................................................... ......................_. _ .... ` ........................................ ..................._.................... Public utilit minor y, A A A Public utilit ma'or .................................................................Y...~......................J...........................................................................~. C ........................................~ C ........................................: C ..............._.............: ...._Religiou_s....institutions .....................................................~. N N P ........ Restaurant, take-out only N C P (Class IV) ~~ - 1 Land Use S-O C-1 C-2 Restaurant, fast food / N N .................: C convenience food (Class III) or any restaurant with drive- up service ......................... ... ...... _ ............ _ ................ ................ ..............._ ................ ... .... , traditional or Restaurant, N C C :.cafeteria (Class II) Restaurant, full service N N C (Class I) ..........................................................................................................................a. Retail, general (single or N P/C P/C :.multi-tenant) . . ~ ............... ................e __ __ ..... ..... Schools ublic or rivate ................................................~..._P........................................P ........................................................~. .......................................... N ........................................ P ...................................... Service station N N C ,Service station /convenience N N C store Service or non-auto repair P/C P/C P/C shop Tattoo sho s .........................................P......................................................................................................~. N ........... . N ......................... C Taxi or limousine service N N P Theater, movie or live N N C entertainment . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Veterina clinic N N P Section 6 Subsection 512.09 of the Richfield City Code is amended to read as follows: 512.09. Permitted, Conditional, Accessory and Prohibited Uses in Mixed-Use Districts. The following table summarizes which land uses are classified as permitted, accessory, conditional or prohibited in the Mixed-Use Districts. Refer to Section 537 for complete regulations. P: Permitted A: Accessory C: Conditional N: Null or not Permitted Land Use MU- N MU- C MU-R :Residential Townhome develo ment P N N Multi-family dwellings min. 3 P P P 'units but see 537.07 Subd. ~~`rJ Land Use MU- MU- MU-R N C : ...........................: .... ........ 2a Live-work units P P N Assisted living facilities, P P N :nursing, rest homes Other Adult businesses N P P Assembly & manufacturing N A A :accessory and subordinante to retail use . ................ : .:......................................... : .......................................... :.................................................: ...... ..................................................................................................................................................... Auto mechanical /body N C C ._repair ..................................: Auto detailin N C C Auto rental facilities as an N A A accessory to primary office or hotel use Auto sales N N C Clinics : A .............................. P ................................ P 4................................... ... ...... ........................................................ ....................................... Convenience store P P P Day care facilities P P P Drive-up window or teller N C C service Firearms related uses N N C Funeral homes, mortuaries N P N ....Governmental..buil.d.!.n.~s .................................... ................_A P '°` ........... Health or athletic clubs, N P P s as o a studios Hotel or motel ~6 or more N P P ;units Hospitals N N P ... Libraries.~..._public ............................................................................... P P N :Offices A P P Police sub-station P P P Public utilities A ..................----- A . _..........._............_._.. A o-_.........................................._, Recreational facilities, non- . P P P commercia , principa use .....Reli..gious...institutions .................................................... . P P................. ~................._A................... Restaurant, take-out only P P P Class IV Restaurant, fast food / N C C ,convenience food (Class III) _ Restaurant, traditional or : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . P . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . _ : g~-~ ... Land Use MU- MU- MU-R N C ,cafeteria (Class II) Restaurant, full service N C P Class Retail, neighborhood P P P services ,Retail, general services C P P Retail re Tonal services N C P ..._Schools,.....p_ublic _or...private .............................. .............P P C Service station N P P Service station /convenience N P P store Theaters, movie or live N N P entertainment Transit facilities A A A Section 7 Subsection 514.05, Subdivision 5 of the Richfield City Code is amended to read as follows: Subd. 5. Private swimming pools as defined in Section 420 of the city code, provided that such swimming pools and related equipment be located: a) At least 10 feet from any rear lot line; b) At least 10 feet from any interior side lot line; and c) At least 15 feet from any street side lot line; and d) Not forward of the front building line. Section 8 Subsection 514.13, Subdivision 2 of the Richfield City Code is amended to read as follows: Subd. 2. Building setback and maximum hei ght (measurements in feet): Maximum Use Front Rear Interior Street Height Side /Corner Side (as defined i n 507.07, Subd. 53) Single-family building 30 25 5 12 25 (but see Subd. 3 and 5) Two-family building (but 30 25 10 12 25 :see Subd. 3 and 5) .......... ............................................................................................ . ~~ -~ _ Cluster home 10 _: development in R-SFH 25 5 12 25 (but see guided area (but see Subd. 8) Subd. 3 and 5)' Cluster home 30 25 5 12 25 (but see :development in non-R- Subd. 8) SFH guided area (but see Subd. 3 and 5)' ...............................................ry..._._g_...............g_.........~............, Accesso ara a but 30 a 3 5 12 142 'see Subd. 3-6) (5 if utility :easement) ... ....................................................... ............................................................. Accessory -non-garage 30 a 3 5 12 123 (but see Subd. 4 and 5) (5 if Utility easement) Non-residential building 40 30 30 30 42 (but see Subd. 5 and 7) Accessory building to 40 10 10 30 15 non-residential use (but see Subd. 5) ............................................................................................ . ' Setbacks for cluster home developments shall apply to the perimeter of the development. Setbacks between attached and detached units within a cluster home development must comply with applicable building and fire codes. (Added, Bill No. 1996-22) 2 For garages, height is measured on the side of the building with the vehicle door. The storage height above the parking area in a detached garage cannot exceed six (6) feet in height. 3 For non-garage accessory structures, height is measured from the ground level to the highest point of the roof. (Amended Bill No. 1996-22; Bill No. 1999-3; Bill No. 2002-11) Section 9 Subsection 518.13, Subdivision 2 of the Richfield City Code is amended to read as follows: Subd. 2. Building setback and maximum heig ht (measurements in feet): Maximum Use Front Rear Interior Street / Height Side Corner Side (as defined in 507.07, Subd. 53 Single-family building 30 25 10 15 35 (but see Subd. 3 and 5) ............................ ry...._._g_ ...............g... ( Accesso ara a but 30 ......................................................................... a 3 ............................................................e... 10 ............................................................................... 12 .................................................................... 14' see Subd. 3-6) (5 if utility easement) jl ~ r$ Accessory -non-garage 30 3 5 12 12 (but see Subd. 4 and 5) (5 if utility easement) T For garages, height is measured on the side of the building with the vehicle door. The storage height above the parking area in a detached garage cannot exceed six (6) feet in height. z For non-garage accessory structures, height is measured from the ground level to the highest point of the roof. Section 10 Subsection 522.13, Subdivision 2 of the Richfield City Code is amended to read as follows: Subd. 2. Building setback and maximum heig ht (all measurements in feet): . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . Maximum Interior Height Use Front Rear Side Street Side las defined in 507.07, Subd. 53) Single-family buildin 30 25 10 15 25 (but see Subd. 3 and 5) : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Two-family building . . . . . . . . 30 25 10 15 25 (but see Subd. 3 and 5) : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cluster home . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 ft. developments in R- from 25 10 15 25 (but see SFH guided area (but center- Subd. 7) :see Subd. 3 and 5)' line of originally platted street Cluster home 30 25 10 15 25 (but see developments in non- Subd. 7) R-SFH guided area (but see Subd. 3 and 5)' Accessory -garage ........................................................... 30 ..................................................................;... 3 ....................................................... 10 ........... .............................................................................. e 15 .............................................2............................... 25 (but see Subd. 3 - 6) (5 if utility :easement) _ .............. ... _._ ...............__... ............_. ................................................................... e ........................................... ............_................. _ Accessory -non- ................................... 30 _............. _. .. e 0 10 15 ~ 12 :garage less than 120 (5 if utility :square feet (but see : easement) Subd. 5) Accessory non-garage ' 30 3 10 15 14 structure (but see (5 if utility Subd. 4 and 5) ........................................................................................................ . easement) ~~ ~~ ~ Setbacks for cluster home developments shall apply to the perimeter of the development. Setbacks between attached and detached units within a cluster home development must comply with applicable building and fire codes. (Added, Bill No. 1996-22) 2 For garages, height is measured on the side of the building with the vehicle door. The storage height above the parking area in a detached garage cannot exceed six (6) feet in height. s For non-garage accessory structures, height is measured from the ground level to the highest point of the roof. Section 11 Subsection 532.03, Subdivisions 4, 5 and 6 of the Richfield City Code are amended to read as follows and all subsequent Subdivision renumbered accordingly: Subd. 4. Neighborhood service and/or office businesses (excluding those listed in Section 532.07 and 532.09) and x;599 4,000 square feet or less of gross floor area. ~~hrl AI hh ni-! rvffine h~~ci oe / L~rlir~ir +hn~.e ~~5-,-. a ig,,,~e~#e ~,~~~ ~s~ e~cz~+sted-I+~ ~Co~ ' ~ 2') !10\ ~eii~h 7 L'.(1(1 cr~~ ~.~ro fce't n~~~~nc ~ f~~ , " "~ y~"" ax~eC~ Subd. 65. Licensed day care businesses not exceeding 3-;9884,000 square feet of rg oss floor area. Section 12 Subsection 532.11 of the Richfield City Code is amended to read as follows: 532.11. Dimensional requirements. Subdivision 1. The following dimensional requirements apply to the C-1 district. All dimensions are in feet unless otherwise indicated. :.....Minimum lot width_...... ....................Interior...lot:...60...................,................'Corner..lot:_.....75........, .Minimum lot area 8,000 square feet Maximum impervious 80 percent ,surface coverage ~--~o Setbacks -building : Principal building Accessory building ,Front (see also Subd. 2) 30 30 .....Rear (see also Subd. 4) Adjacent to R, R-1 or 15 8 MR-1 District Adjacent to non-R, R-1 5 5 or MR-1 District Street /corner side.-(but 20 20 .see Subd. 3 & 4) Interior side (see also Subd. 4) Adjacent to R, R-tor 15 10 MR-1 District Adjacent to non-R, R-1 5 5 or MR-1 District Maximum building height 30 15 Story limitations 2 stories 1 story Setbacks. -parking (measured from the property line) Section 13 Subsection 534.07, Subdivision 9 of the Richfield City Code is amended to read as follows: Subd. 9. Hospitals and eaed-isat24-hour urgent care clinics, provided the following conditions are met: a) The use site shall abut an arterial or collector street; and b) A buffer yard of not less than 25 feet in width shall be provided to separate all aspects of such use from any abutting parcel. Section 14 Subsection 534.11 of the Richfield City Code is amended to read as follows: 534.11. Dimensional requirements. Subdivision 1. The following dimensional requirements apply to the C-2 District. All dimensions are in feet unless otherwise indicated. 8I~-~~ :Minimum lot width ... Interior lot: 75 ......r.............................................. :... Corner lot: 90 .....................................................................................................; ............................................................................................................... Minimu m lot area ........................... ......................................... _9,OOO...sguare feet............................................................ ..._ . ... Maximum impervious 85 percent ,surface coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Setbacks -building . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .: . . . . . . . . :Principal building . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : Accessory building ...._Front. (see _also Subd. 2) 35 e ...................................................................................................> _35 ......................................... ,Rear (see also Subd. 4) Adjacent to R, R-1 or 20 8 MR-1 District Adjacent to non-R, R-1 5 5 or MR-1 District _; Street /corner side (but 25 25 ;see Subd. 3) Interior side (see also Subd. 4 Adjacent to R, R-1 or 20 20 MR-1 District Adjacent to non-R, R-1 0 0 or MR-1 District Maximum building height 40 15 (but see Subd. 5) _Story.._Iimitations ............................................... ~...................... _3 _stories................................~........ ..........................._~...:_sto.!Y..................................... Section 15 Subsection 537.03, Subdivision 1 of the Richfield City Code is amended to read as follows: 537.03. Permitted Uses. Subdivision 1. The following table establishes permitted, conditionally permitted and accessory uses for the Mixed Use Districts. Table 1. Uses of the Mixed-Use District The following abbreviations are used within the use table: P= permitted use A= accessory use C= conditionally permitted N= not permitted Use MU-N MU-C MU-R COMMERCIAL Re Tonal retail services N C P General retail services C P P Nei hborhood retail services P P P Restaurant Class I servin alcohol N C P Restaurant Class II (traditional/cafeteria) P P P Restaurant Class III (fast food/convenience) N C C Restaurant Class IV take out onl P P P S,~ - ta- Use MU-N MU-C MU-R Service Station /convenience store N P P Convenience store P P P Offices and clinics A P P Hotel/motel (defined as 6 or more rooms) N P P Mortuaries and funeral cha els N P N Health or athletic clubs, spas, o a studios N P P Theaters, movie or live entertainment N N P Auto sales or lease -new vehicles N N C Auto mechanical or bod repair sho s N C C Auto detailin N C C Auto rental facilities accessory to a primary office or hotel use N A A Assembly and manufacturing accessory and subordinate to a retail use N A A Drive-up window or teller service N C C Adult business establishments as defined and regulated under Subsection 1196 of the Cit Code N P P Firearms related uses N N C Licensed da care facilities P P P RESIDENTIAL Dwellin ,townhouse P N N Dwelling, multi-family (min. 3 units) P P P but see 537.07 Subd. Live -work units P P N Assisted livin facilities, nursin ,rest homes P P N INSTITUTIONAL/PUBLIC Places of worship P P A Government offices A P A Police sub-station P P P Schools P P C Libra P P N Parks P P P Hos itals N N P Transit facilities A A A Public utilit A A A Section 16 Subsection 537.13, Subdivision 2 of the Richfield, City Code is amended to read as follows: $~ -i 3 Subd. 2. Expansion of Dimensional or Bulk Non-Conformities. Legally nonconforming esesbuildings existing prior to February 19, 2006 that do not meet dimensional or bulk standards of the Mixed Use Zoning District may be expanded through review and approval of a site plan - Subsection 547.13. Expansion or modification of a le ~selegally nonconforming building shall: a) Not increase the degree of non-conforming; b) Result in the building and property being in greater conformance with the goals and policies of the Comprehensive Plan; and c) Not significantly impede implementation of goals and policies of the Comprehensive Plan. Section 17 Subsection 544.13, Subdivision 5 of the Richfield City Code is amended to read as follows: Subd. 5. Parking Lot Setbacks. a) Parking lots must be set back eight (8) feet from the right-of- way. b) Parking lots must be set back five (5) feet from adjacent commercial and mixed use property. c) Parking lots must be set back 15 feet from adjacent residential property with appropriate screening as required by Subsection 544.03 Subd. 5 for residential sites or Subd. 6 for commercial. Section 18 Subsection 544.13, Subdivision 6 of the Richfield City Code is amended to read as follows: Subd. 6. Number of Off-Street Spaces Required. Off-street parking spaces shall be provided according to the following minimum standards. Parking for land uses not listed below shall be regulated according to the most similar use and/or authoritative sources as determined by the' ~rlminie~r~~nrG`ity Planner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Land Use . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , :Minimum Number of Off-Street Parking Spaces Required* COMMERCIAL USES Animal hospital 1 for every 200 square feet of gross floor area. Auto mechanical Lbody repair 4 plus 2 per service stall and 1 per shop or gas station :150 square feet of retail area Bakery 1 per 25 square feet of customer floor area. Bank or similar financial service 1 space per 250 square feet of gross : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . floor area. . . . . . . . _ , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : ~~-I~f Land Use Minimum Number of Off-Street Parking Spaces Required* Bed and breakfast inn 2 plus 1 per room for rent. No :required parking may be located in the front yard nor shall the parking area exceed fifty percent of the rear yard. Bowling alley 5 per bowling lane plus 1 per 4.5 seats of other related facilities (e.g., restaurant) Coffee shop 4.5 per 1,000 square feet of gross floor area. Dance or physical culture studio 3 per 1,000 square feet of gross floor area. Day care center (adult or child) 1 per 5 enrolled persons based on licensed..._capacity.~ ................................................................................................ Health club or fitness center 1 per 225 square feet of gross floor area Hotel 1 per room plus 1 per 4.5 seats of other related facilities (e.g., :restaurant) Medical or dental office Floor area of 2,500 square feet or 1 for every 250 square feet of floor less area. Floor area greater than 2,500 1 for every 200 square feet of floor square feet . . . . .. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . area. : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Office Floor area of less than 50,000 1 per 275 square feet of floor area square feet Floor area of 50,000 to 200,000 1 per 300 square feet of floor area square feet : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : Floor area of 200,000 to 400,000 1 per 325 square feet of floor area square feet Floor area of more than 400,000 1 per 350 square feet of floor area square feet : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : Other businesses or industries, 1 per 2 employees plus 1 per vehicle including wholesale :used in conduct of the enterprise OR 1 per 800 square feet of gross floor area, whichever is greater. S.h.~.PP!n.9..center ..................................... ..........................._ Community (under 50,000 sf) ! 3.5 per 1,000 square feet of gross floor area Regional (50,000 sf or more) ....... 4 er 1,000 s uare feet of ross floor _I? . .q .. 9 . ~~-iS Land Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . Restaurants or food service in shopping centers Retail (other than shopping center) where more than 25 percent of the gross floor,area is customer area Retail (other than shopping center) where more than 25 percent of the gross floor area is customer area and where the merchandise is large such as furniture, carpeting, large appliances or automobiles . . . .. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Retail (other than shopping center) where less than 25 percent of the gross floor area is customer area and where the product is picked up or delivered..._by....Patron.~ ............................................................... Restaurants ..................................................................................................................................................................................... Class I and II Class III (Fast food /convenience) Class IV (Take-out only) Theater . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minimum Number of Off-Street Parking.._Spaces....Required ................................................. area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Calculated separately unless the restaurant meets all of these requirements: • The shopping center floor area is over 20,000 square feet . The restaurant does not have wait staff serving food directly to the customer while seated • The restaurant does not have an intoxicating liquor license • The restaurant does not have in- vehicle sales or service • The combined total or all restaurants and food services total less than 25 percent of the gross floor area of the building and shopping center. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . MT"~GGV 5 per 1,000 square feet of gTross~floVor area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~-pe~599 2 per 1,000 square feet of floor area (including outdoor display areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~-pe~1-A9 10 per 1,000 square feet of gross floor area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 per 1,000 square feet of gross floor area. 17 per 1,000 square feet of gross floor area. 1 per 25 square feet of customer floor area plus 1 per delivery vehicle on the maximum shift. 1 per 3 seats if part of a shopping center; 1 per 2.5 seats if free standing Section 19 Subsection 544.25, Subdivision 3 of the Richfield', City Code is amended to read as follows: ~-i~ Subd. 3. Exemptions. Permits are not required for: Adjustment e~-rep~cer~er~t of the elements of an antenna array affixed to a tower or antenna, provided that replacement does not reduce the safety factor. Antennae and/or towers erected temporarily for test purposes, for emergency communication, or for broadcast remote pick-up operations. Temporary antenna shall be removed within 72 hours following installation. Section 20 Anew Subsection 549.19 of the Richfield City Code to read as follows is added, and by now renumbering all following subsections accordingly: 549.19. Expiration. Sign permits are valid for one year from the permit issuance date. Section 21 Subsection 549.21, Subdivision 4 of the Richfield City Code is amended to read as follows: Subd. 4. Banners. Banners, where permitted, are subject to the following standards: a) Banners shall be attached to a structure, shall. be strongly constructed, and shall be securely attached to their supports; b) Banners shall be removed (including all framework and supports) as soon as damaged or torn; c) There shall be no more than one banner per tenant on any building frontage (see Subsection 549.23 for size allowances); d) Due to the construction methods of banners and their tendency toward damage, no banner may be displayed for more than 28 days.-; and e) No more than four (4) permits temporary sign permits shall be issued to any business organization or institution within any calendar year. Section 22 Subsection 549.21, Subdivision 5 of the Richfield .City Code is amended to read as follows: Subd. 5. Setbacks. Unless specifically noted otherwise, all signs shall maintain a 5-foot setback from all lot lines. The City may require a greater or lesser setback because of public safety reasons that may include the following conditions: vehicle sight distance see Subsection 925.01, Subd. ~, distance from intersection, designation of adjacent right-of-way. ~- i~ Section 23 Subsection 549.23, Subdivision 2, Clause b of the Richfield City Code is amended to read as follows: b) Within commercial, mixed-use neighborhood, mixed-use community, mixed-use regional and industrial zoning districts, wall signs may not exceed 15 percent of the total wall area of the wall to which the sign is attached. In the case of multiple occupancy, the total area of wall signs which each occupant may display shall not exceed 15 percent of the exterior wall of the portion of the building occupied by that tenant. Section 24 The Richfield City Code is amended by repealing Subsection 507.07, Subdivision 122 and Subsection 549.23, Subdivision 3. Section 25 This Ordinance is effective in accordance with Section 3.09 of the Richfield City Charter. Passed by the City Council of the City of Richfield, Minnesota this day of 2011. Debbie Goettel, Mayor ATTEST: Nancy Gibbs, City Clerk AGENDA SECTION: CONSENT AGENDA ITEM # 8B REPORT # 77 ~] STAFF REPORT CITY COUNCIL MEETING APRIL 12, 2011 REPORT PREPARED BY: JIM TOPITZHOFER, RECREATION SERVICES DIRECTOR N~tME, TITLE DEPARTMENT DIIZECTOR i REVIEW: ~ ~ S ATU J .. ~ q i ~~ REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDER~ .Consideration to approve the attached Agreement for Manage Rentals, LLC to provide management services for Adventure G .TION: ment Services with Wheel Fun ardens Mini-Golf. I. RECOMMENDED ACTION: By Motion: To approve the attached Agreem ent for Management Services with Wheel Fun Rentals, LLC. II. BACKGROUND In response to declining golf round sales and increasing repairs and upKeep, an attempt has been made to recruit a private vendor to provide management services for Adventure Gardens Mini-Golf. Staff has been meeti g with Rodney Knight, President of Wheel Fun Rentals, LLC to discuss ways to expand the services he provides to the Minneapolis Park Board at Minnehaha P rk and Lake Calhoun, into .Richfield Veterans Park, as a way to boost -golf round sales in Richfield and to lower operating costs. Because nearly half of the mini-golf customers currently come from the South Minneapolis area, a partnership with Wheel Fun Rentals would strengthen advertising penetration into that area to potentially attract more customers. Wheel Fun Rentals would also attract additional customers by introducing bicycle rentals into Veterans Park at a time v~hen a major regional trail is being constructed in Richfield along with a second regional trail in -the works. Plans are also being made to .share advertising promotions with the Richfield Pool to also attract more customers. 04 12 11 Agreement for Management Services with Wheels of Fun LLC The summary of the terms of the agreement follows: Mgmt. Services Wheel Fun Rentals will operate the mini-golf facility including concessions. City retains rental operation of the picnic shelter. Term: April 1, 2011 to September 1, 2014 with operating seasons staring April 1 to September 1 of each year. Compensation: $6,000 plus 7.5% of gross revenues, not to exceed a total of $12,000 per season. Staffing: Staffing is provided by Wheel Fun .Rentals Upkeep 8~ Repairs: Wheel Fun Rentals maintains and repairs the Mini-golf Facility. City provides repair of the park building. Utilities: Shared cost, 50/50 for actual utility cost during operating season. Fees: Fees charged to the public will remain the same the first year and must be competitive with that of similar private and public facilities. The attached agreement does not include rental operations of the large picnic shelter adjacent to the Mini-golf facility. The Recreation Services Department will continue to oversee all picnic shelter rental operations. The Richfield Farmers Market, Richfield 4th of July Celebration and other scheduled events at Veterans Park will not be impacted by-the attached agreement. III. BASIS OF RECOMMENDATION A. POLICY • Contracts and agreements of this type are typically reviewed and considered by Cify Council. _ B. CxITICaI, TnvIrNG IsstrES • Preparations for the upcoming mini-golf season will begin April 15, 2011 pending Council approval of the- agreement. C. FINANCIAL Based on last year's actual revenues and 2011 budgeted expenses (not including depreciation), a conservative estimate of the financial impact of an agreement with Wheel Fun Rentals follows: 2010 Actual Revenue Estimate with Agreement Golf & Concession Income $65,024 0 Fees for Management Services 0 $10,877 Shelter Rental Income Total Revenue Staffing Interdepartmental Labor Cost of Good Sold Other Services & Charges Total Expenses Net Cash Gain (Loss) 14 039 14 039 $79,063 $24,916 2011 Budget Estimate with Agreement $32,900 0 - $27,470 $9,000 $5,200 0 33 520 15 900 $99,090 $24,900 ($20,027) $16 D. LEGAL • The City Attorney prepared the attached agreement. • This agreement was reviewed and approved by Joe Hiller, Minnesota DNR Grants Manager, for compliance with covenants associated with State Outdoor Recreation Grants Agreement used for funding improvements in Veterans Park. E. ENVIRONMENTAL CONSIDERATIONS • None. IV. ALTERNATIVE RECOMMENDATION~S~ • Staff believes that a partnership with the Wheel Fun Rentals, LLC will increase the number of rounds sold at Adventure Gardens and improve the City's overall financial position of the Recreation Enterprise Fund. However, the Council may chose not to approve the Agreement and continue to operate the facility as is or to discontinue operation. V. ATTACHMENTS • Agreement for Management Services for Adventure Gardens Mini-golf VI. PRINCIPAL PARTIES EXPECTED AT MEETING • Rodney Knight, President, 1Nheel Fun Rentals, LLC and Brandon Klement, Facilities Manager fig- 1 AGREEMENT FOR MANAGEMENT SERVICES THIS AGREEMENT is made by and between CITY OF RICHFIELD, a Minnesota municipal corporation with offices at 6700 Portland Avenue South, Richfield, MN ("City") and WHEEL FiJN RENTALS, LLC, a Minnesota limited liability company with offices at 3609 Heights Court, St. Cloud, MN ("Manager"). Recitals A. City is the owner of amini-golf facility located at 635 Portland Avenue, within Veterans Memorial Park, in the City of Richfield, consisting of approximately 47,355 square feet of land improved with a miniature golf course (the "Facility"). B. City is also the owner of a building located adjacent to the Facility (the "Building"), approximately 1,664 square feet of which has been used as storage, concessions, restrooms, and office space for the operation of the Facility and for bicycle rental (the "Operating Space"). The Operating Space comprises one-half the total area of the Building. C. A sketch plan showing the location of the Facility, Building and Operating Space is attached as Exhibit A. D. City and Manager are entering this Agreement for Manager to manage the Facility and Operating Space according to the terms and conditions set forth below. Terms 1. Recitals Incorporated. The recitals set forth above are incorporated into and made a part of this Agreement. 2. Term. The Facility and Operating Space are open for use seasonally, from April 1 through September. l of each year. The term of this Agreement is from April 1, 2011 through September 1, 2014, unless earlier terminated as provided in paragraph 16 below. 2. Management Services. Manager agrees to manage the operation of the Facility, including mini-golf play with club and ball rental, and to also manage the concession sales and bicycle rental operations during the April -September seasons for each of the years that this Agreement is in force and in accordance with the terms of this Agreement. 3. Compensation. As compensation, the Manager will retain the gross revenues from the operation of Facility, concessions and bike rental, less the amounts paid to the City under this paragraph. The Manager will pay to the City $6,000 per season plus 7.5 percent of gross revenues from the operation of the Facility, concessions and bike rental, not to exceed a combined total of $12,000 per season. The $6,000 will be paid in equal monthly installments of 382872v2 CAH RC160-7 ~~-a $1,200, payable on the last day of May, June, July, August and September in each of the years that this Agreement is in force. The Manager will pay the portion of compensation that is based upon gross revenues in one installment each year, based on the gross revenues for the immediately preceding season, and payable by September 30th of each year. 4. Revenue Reporting_ Within 10 days after the end of each month of seasonal operation, Manager must provide City with an accounting of the gross revenues, separated by category, for mini-golf club and ball rental, concessions, and bicycle rental. 5. Hours of Operation and Rates. By January 1 of each year, Manager must submit to the City's contract manager for approval its proposed schedule of hours of operation and rental rates for the Facility and bicycle rental for the upcoming season. The City's contract manager may disapprove the proposed schedule of hours and rates only if they are commercially unreasonable; the City must notify Manager by January 15 if the schedule is not approved, or the schedule is deemed approved. If the schedule is not approved, Manager must submit a revised, commercially reasonable schedule to the City's contract manager by February 1 preceding the season for which the rates are applicable. 6. Staffing. At its sole expense, Manager must provide sufficient personnel to operate, maintain and repair the Facility, concessions and bicycle rental at all times during each operating season. Manager is required to obtain criminal background checks on each of its employees who will perform services under this Agreement. In advance of the season starting date of each year, Manager must certify in writing to City that criminal background checks have been performed on Manager's staff as required by this Agreement. 7. Equipment. The City will provide to Manager the equipment currently owned by City and necessary to the operation of the Facility, concessions and bike rental, which includes all of the equipment listed on the attached Exhibit B (the "Equipment"). The City agrees to inspect the refrigerator and freezer and, at its expense, make any repairs that may be necessary to make the units operable and in compliance with applicable health and sanitation codes prior to April 1, 2011. Manager agrees to accept all other Equipment in an "as is" condition. At all times during this Agreement, Manager is responsible for keeping the Equipment in,a condition that is safe and suitable for use, and in compliance with applicable health and sanitation code requirements, if any. Manager's obligations under this paragraph include the obligation to repair or replace Equipment as necessary, at Manager's expense. Manager must notify City of any Equipment that Manager removes from service and replaces; City will be responsible for disposing of Equipment that is no longer suitable for use, in accordance with City policies. Manager, not City, will own any replacement Equipment that Manager purchases at its expense ("Replacement Equipment"). 8. Facility Repairs and Improvements. Manager is responsible to maintain the Facility and Operating Space at its expense at all times during ,each operating season. Manager is responsible for conducting regular inspections of the Facility and Operating Space and notifying City of any required repairs.. City is responsible for making repairs to the Building in which the Operating Space is located. Manager, at its expense, shall perform all repairs to the Facility but must notify City prior to effecting any repair with an estimated cost that exceeds $500.00. 382872v2 CAH RC 160-7 8~-3 9. Utilities. Manager agrees to pay all utilities associated with the operation of the Faclity and the Operating Space. The Facility and Operating Space are not separately metered from other parts of the Building for electric, gas and water utilities. Manager and City agree that a fair and equitable allocation of utility costs is 50 percent for the Operating Space utilities and 50 percent for the remainder of the Building, based on floor area. Promptly after City's receipt of the utility bills for the Building for usage during the April-September seasons, City will provide Manager with copies of the utility bills and an invoice for 50 percent of the utility costs. Manager agrees to pay the invoice within 10 business days after receipt. If any payment is more than 10 days delinquent, City may deduct the invoiced amount from the next installment of compensation payable under paragraph 3 above. 10. Food License. At its cost, Manager must obtain and maintain an annual food license issued by the City. 11. Insurance. Manager must obtain and maintain in force at all times during this Agreement the following insurance: A. Workers' Compensation insurance that meets minimum statutory obligations. B. Commercial General Liability insurance against claims for personal injury, death or property damage occurring in connection with Manager's performance of this Agreement, with limits of not less than $1,000,000 each occurrence, $300,000 property damage; $5,000 medical expense any one person; $500,000 personal and advertising injury. The policy shall be on an "occurrence" basis, shall include contractual liability coverage, and the City shall be named an additional insured. C. Commercial Automobile Liability insurance covering ;all owned, non-owned and hired automobiles with limits of at least $1,000,000 combined single limit. D. Professional Liability insurance providing coverage for the claims that arise from the errors of Manager or its employees, failure to render a professional service by Manager or its employees, or the negligent rendering ';of the professional service Manager in the amount of $500,000. each occurrence and $500,000 annual aggregate. The insurance policy must provide the protection stated for two years after termination of this Agreement. Such insurance secured by Manager shall be 'issued by insurance companies admitted in Minnesota. The insurance specified may be in a policy or policies of insurance, primary or excess. Such insurance shall be in force on the' date of execution of the Agreement and shall remain continuously in force for the duration of the Agreement, unless otherwise stated. Any policy deductibles or retention shall be the responsibility of Manager. The City does not represent that the insurance requirements are sufficient to protect Manager's interest or provide adequate coverage. 382872v2 CAH RC160-7 ~g-u 12. Indemnification. Manager agrees to defend, indemnify and :hold harmless, the City, its officials, officers, agents and employees from any liability, claims, causes of action, judgments, damages, losses, costs, or expenses, including reasonable attorney's fees, resulting directly or indirectly from any act or omission of the Manager, its contractors or subcontractors or anyone directly or indirectly employed by them, or anyone volunteering for them, or any parry that directly or indirectly benefits from the activities specified in this Agreement, or anyone for whose acts or omissions they may be liable in the performance of the activities specified in this Agreement and against all loss by reason of the failure of the Manager to perform fully, in any respect, all obligations under this Agreement. Nothing in this Agreement shall be deemed to be a waiver by the City or its elected officials of any limitations on or immunities from liability set forth in Minnesota Statutes, Chapter 466 or to which the Ciry or its elected officials, officers, employees, agents and representatives are otherwise entitled. 13. Data Privacy; Records. The Manager agrees to comply with the Minnesota Government Data Practices Act (the "Act") and all other applicable state and federal laws relating to data privacy or confidentiality. Manager will immediately report to the City any requests from third parties for information relating to this Agreement, or services provided hereunder.. The City agrees to promptly respond to inquiries from Manager concerning data requests. All data created, collected, received stored, used, maintained or disseminated by Manager in performing its obligations is subject to the requirements of the Act, and Manager must comply with the requirements of the Act as if Manager was a government entity. Manager agrees to defend, indemnity and hold the City, its officers and employees harmless from any claims resulting from Manager's failure to disclose data maintained by Manager and authorized for release by the City, or from Manager's unlawful disclosure or use of data protected under state and federal laws. 14. Audits. Manager agrees that the Ciry or the state auditor, .including any duly authorized representatives of the Ciry or state auditor, shall have access to and the right to examine, audit, excerpt and transcribe any books, documents, papers, and records that involve relevant transactions relating to this Agreement at any time during normal business hours and as often as they may reasonably deem necessary. 15. .Independent Contractor.. Manager, along with any other person hired or retained by Manager, shall perform the services under this Agreement as an independent contractor and not as employees of the City. The Manager and its employees will act as an independent contractor and shall not be treated as an employee of City for federal, state or local tax purposes or any other purposes under any circumstances. Manager and its employees shall not require nor be entitled to any compensation, rights or benefits 'of any kind whatsoever from City, including, without limitation, tenure rights, medical and hospital care, sick and vacation leave, workers' compensation benefits, unemployment compensation, disability, severance pay, pension benefits or any other rights or benefits of City employees. Regardless of j any determination of any pertinent tribunal, agency, board, commission or court, Manager agrees to hold harmless, defend and indemnify Ciry, its officers, agents and employees from any loss, claim or liability related to Manager or persons employed or retained by Manager, including, without limitation, claims of 382872v2 CAH RC160-7 ~B-~ employment discrimination or employer-related tax, social security, or employment or disability payments. 16. Termination. This Agreement may be terminated as provided in this paragraph, and payment of compensation shall be prorated to the last day this Agreement remains in force. A. Termination Without Cause. Either party may cancel this Agreement without cause by giving written notice to the other party no later October 15 of any year during the term of this Agreement; such termination shall be effective as of November 30 of the year in which notice is given. B. Termination for Cause. Either parry may terminate this Agreement for cause as provided herein. For purposes of this Agreement, "cause" shall be defined as any of the following: 1. Material failure to comply with the provisions of this Agreement and failure to cure such breach with seven (7) days after the non-terminating party's written notice of the item of breach. In such instance, the Agreement is terminated effective 14 days after the non-terminating party's notice of the breach. 2. Dissolution, substantial contraction, or bankruptcy of the non-terminating party, in which case the termination shall be effective 10 days after party's written notice of termination or such later date as specified in the written notice. C. Notwithstanding the above, neither party shall be relieved of liability to the other for damages sustained as a result of any breach of this Agreement by the other party. The City may withhold payments due to Manager for the purpose of set-off until such time as the exact amount of damages due to the City is determined. The rights or remedies provided for herein shall not limit either party, in case of any default by the other party, from asserting any other right or remedy allowed by law, equity, or by statute. 17. Le a~mpliance. Both parties agree to comply with all applicable state, federal and local laws, rules and regulations in carrying out their respective obligations under this Agreement. Without limiting the foregoing, the parties agree that the provisions of Minn. Stat. § 181.59 (prohibiting discrimination on account of race, creed or color) are incorporated into this Agreement by reference; that the parties shall comply with the Minnesota Human Rights Act, Minn. Stat. chapter 363A; that the parties shall comply with the Americans With Disabilities Act of 1990 and not to discriminate on the basis of disability in the admission or access to, or treatment of individuals in its services, programs or activities. Upon request, accommodation will be provided to allow individuals with disabilities to participate in all services, programs and activities. 18. NOTICES. Any notices to be given hereunder by either party to the other may be effected by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Notices delivered personally will be deemed communicated as of the 382872v2 CAH RC160-7 ~~-~ date of actual receipt. Mailed notices will be deemed communicated as of two (2) days after the date of mailing. Mailed notices shall be addressed to the parties at the addresses appearing at the end of this Agreement, but each party may change the address by written notice in accordance with this paragraph. 19. Assi ng_ment. Neither this Agreement nor any duties or obligations under this Agreement maybe assigned by Contractor or Client without the prior written consent of the other party. 20. Health~Menu Choices. Manager shall offer at least one healthy food menu item and at least one healthy beverage as part of concession operations. 21. Publici The facility will be identified as publicly owned and operated in all signs, literature, and advertising to eliminate the perception that the facility is privately owned. 22. Fee Rates. Fee rates charged to the public by Manager must be competitive with that of similar private and public facilities. This Agreement is entered into as of the date and year written above. CITY OF RICHFIELD WHEEL FUN RENTALS, LLC By By Its Manager Its Mayor By Its Ci Mana er 382872v2 CAH RC160-7 gg-7 EXHIBIT B' List of Equipment One - Gehl's Nacho Cheese Dispenser (Hot Top 2) One - Amana Microwave Oven One -Counter Top Refrigerator (Coke Property) One -Fountain Pop Dispenser (Coke Property) One -Single Bunn Coffee Brewer (Al's Coffee Property) One -Cappuccino and Hot Chocolate Dispenser (Al's Coffee Property) Four -Air Pot Coffee Dispensers (Al's Coffee Property) One -Vulcan Two Door Refrigerator One -Vulcan Two Door Freezer One -Multi-Clean Double O Seven Dispenser One - AMSEC Money Safe One - 7962 Cisco IP Phone One - PIX 10 Time Clock One -Five Camera Nuvico Security System One -City Computer with monitor, keyboard, mouse, printer and Belkin Power strip One -Bolt Cutter 9 - 37" Putter 58 - 35" Putter 54 - 32" Putter 49 - 29" Putter 10 -Kids Putter 109 -Multi Colored Putt-Putt Balls One - 8' x 8' Outdoor Shed with Locks that Contains: One - Yardman self-propelled walk behind lawn mower One - Wheel Barrow Two - Brush Snips One - Regular safety fuel can (Empty) One - Mixed safety fuel can (Empty) One - Echo hand held leaf blower One - Echo weed whip Two - 32" plastic leaf rake One - Pitch fork One - Post-hole digger One - Barn shovel Two - Garden rake Two - 18" Push broom One - Garden shovel Two - Gerer Trash Picker 382872WL CAH RC160-7 ~B-8 :.~ .~ -,~ • . :. ~ r :~R ., .t _~, a :~ =~ ~{ fp{ '•i~`, ~ ,~,i ~ ~ .. Imo: a ~, ~~ ~, '~` 6 ~ y ~ t ' ~ k ~ ~"- `~ ~ ~- ~ ~~~ ~{ '`~~ ~'~ . dry y. ~ ~-`~ ~' ~ ~~T :~.1 { ~ ~~~~V ~ 33 5 ~ - a , h q 1 ~ R~ {,c Yut ~ ~ V _~ i $ {~~y, ry.. ~C'.? ,~ ~w s ,y~ ~,: ,s~ ~ ;,+ .mot ~~ ., ,"~' ! ~ ..~ .n.a " , '4 5 y ~ an `~.r~f <~ ~ r~ ~~= ~ ~~~ ;~ ° ~ .~. ~ ~ ~ ~ ' ~"~ M r. , k ';~ ., ~. ~-:. ~ a f y ~ d t T~ Y ~~: 382872v2 CAH RC160-7 AGENDA SECTION: CONSENT AGENDA ITEM # 8C REPORT # 78 ~~ STAFF REPORT CITY COUNCIL MEETING APIUL 12, 2011 REPORT PREPARED BY: PAM D YTRENKO, AS ST TY MANAGER NAME, TlTZE REVIEWED BY CITY ,~ MANAGER: ITEM FOR COUNCIL CONSIDERATION: Consideration of the award of contracts for audiovisual information display components in the new Richfield Municipal Center. I. RECOMMENDED ACTION: By Motion: Accept the bids in the amount of, $223,088.50 for audiovisual information display components, in the Richfield Municipal Center and award contract to: • Graybow Communications in the amount of $90,096.46 for training room and digital signage AV system project; and • Alpha Video & Audio in the amount of $,132,992.04 for control room and Council Chamber project. II. BACKGROUND ~, On March 31, 2011, bids were opened for two separate audiovisual projects for the new Richfield Municipal Center project. The first bid package was for training room set up for three training rooms and for the building-wide digital signage AV system. The second bid package was specifically for the Council Chambers and control room AV system. I A total of three bidders submitted bids, after a mandatoryjwork-through of the project site. One of the bidders only submitted a bid for the training room/digital signage system package. The bids were- reviewed by the City's AV consultant, Touchpoint Logic. The lowest bidders for each bid package are recognized in the industry and are being recommended for award of contracts. 0412AV bid awards III. BASIS OF RECOMMENDATION A. .POLICY • Per City ordinance, the ad for bids was published in the Sun Current on March 17, 2011 and bid openings were. held on March 31, 2011. • The recommended contractors are the lowest responsible bidders and are established contractors that meet all of the City's requirements. • Under the City's Purchasing and Spending Authority policy, contracts .estimated to have a value over $100,000 require that sealed bids be solicited through public notice. B. CRITICAL TIMING ISSUES • Approval of the recommended contracts will provide contractors the necessary time to order products and schedule work to meet our move-in timeline. C. FINANCIAL- • The two contracts being recommended for award on April 12, 2011 are valued at a total cost of $233,088.50 and are well within the anticipated cost for each scope of work. D. LEGAL • All contracts that exceed $25,000 require Council approval. • Contracts estimated in value between $25,000 to $100,000 can be made either by sealed bids or by direct negotiation based on quotes. • All contracts over $100,000 require that sealed bids be solicited by public notice. E. ENVIRONMENTAL CONSIDERATIONS • Environmental considerations have been made in all aspects of project planning. IV. ALTERNATIVE RECOMMENDATION~S~ , , • ~ Council may chose to reject any of the bids and direct staff to obtain new bids. However, re-bids will delay the installation of the AV components in time for the anticipated May 20, 2011 move date. V. ATTACHMENTS • Bid tabulation VI. PRINCIPAL PARTIES EXPECTED AT MEETING • None. ~~ - t N W Z Z J W LL 2 V LL O ~_ V Y N U _~ U ~ (B ~ O . ~ ~ _ ~ O ca ~ ~ Z o c a~ Q ~a L U O 4 to - (6 to ~~ O N ~ fQ ~ ~ ~ _ •~ r C ~ ~ C N ~ Q N N Q~~ Do M O ~ ti ~ ~ ~ ~ m N ~ ~ ~ N ~ .~ ` ~ C ~ C U ~ Q ~ ~ ~ C N O U O ca~a~ Q ~- r O ~ ,_ ~ ~ ~ N ~ o ~ c o Z ~ ~ ~ E o ~ o O 0 C ~ ~~ ~ O N ~ ~ Q .~ Q ~ m ~ ~ c ~ ~~ N .-. O ~ O (~ ~ ~ .«- > ~~ Q ~~~ ' ~ ~ C N O O ~ U C .~ O ~ O .,.. ~ c ~ ~ °c ~ cc ;~Z ~c~a~ U ~ i O ~ ~ .C O ~m ~ ~U L O .~ ~~~ C C Q O O ~ a--~ •(Q L Y ~~+ AQ O ~ m 0 U~~V ~~~~ ~,pUa U N N C ~ ~ +~ (B (B (Q CQ Zd~Y c a~ d O (1T c~ c m a~ N N ~_ C 0 0 N ..C H (6 L U ~U ~ c .~. ~ o ~ ~ ~n O H N ~ ~ U ~ rn ~ M o2S ~ .O M .a ~ _ ~ _ O ~ Efl Efl ~' O c 0 U Q N y.-. O F- (-~0 U N ~ d' ~ ~~_ N ~ ~ O ~ O) N O ~ ~ r r O ~ ~ ~ ~~ ~~ c . ~ .O H m ~ . ~ ~ -p O ` O O m a a a a~ E (6 ~ C Z ~ N O U E ~ ~ ~° Q m ~ ~ 0 ~Z U ~ > o >~ o L C c .n ~ ~'~ Y a~ N Q~ ~ p ~ O ca Qw c~c~ ~~ C O C O O U _~ U 0 N N r ~L Q N N ~ ~ N ~ ~ ~ ~_ O ~ ~ O ~ U "~ ~ .~ c ~ cB iv ~ _~ O ~ ~ o ~ 0 ~ ~ o ~ ~ t N L ~ ~ U o~p C ~ ~ ~ o c o ~ c6 N Y ~ N U c~ w .~ `~ U 3 ~_ O m ~ Y U U U Z AGENDA SECTION: CONSENT AGENDA ITEM # 8D REPORT # 79 STAFF REPORT CITY COUNCIL MEETING APRIL 12, 2010 REPORT PREPARED BY: REVIEWED BY CITY MANAGER: PORATH, DEPUTY CITY CLERK ITEM FOR COUNCIL CONSIDERATION: Consideration of the cancellation of May 24,'2011 Regular City Council Meeting. I. RECOMMENDED ACTION: By Motion: Cancel the Regular City Council ,Meeting scheduled for Tuesday, -May 24, 2011 at 7:00 p.m. II. BACKGROUND ', Due to the move from the current City Hall building to the new Municipal Center, the City Hall Council Chambers will be unusable for the May 24, 2011 Regular City Council Meeting. Staff recommends cancelling the May!,24, 2011 Council Meetingu with the option to relocate the meeting as needed. The Regular HRA Meeting of May 16,'2011, which also coincides with this moving period, was cancelled by the members of the Housing and Redevelopment Authority at their March 21 meeting. III. BASIS OF,RECOMMENDATION i A. POLICY • Regular City Council Meetings are held on; the second and fourth Tuesdays of each month. ' B. CRITICAL TIMING ISSUES 0412Cancel The May 24 Regular City Council Meeting coincides with the relocation process in preparing for moving to the new Municipal Center. If agenda items are of a pressing nature the meeting may be relocated as needed. C. FINANCIAL • N/A D. LEGAL • N/A E. ENVIRONMENTAL CONSIDERATIONS • N/A IV. ALTERNATIVE RECOMMENDATION~S~ • The City Council could conduct the Regular City Council Meeting at a different location. V. ATTACHMENTS • None VI. PRINCIPAL PARTIES EXPECTED AT MEETING • None AGENDA SECTION: CONSENT AGENDA ITEM # 8E REPORT # 80 r STAFF REPORT CITY COUNCIL MEETING APRIL 12,.2011 REPORT PREPARED BY: PAM DMYTRENKO, ASSI811~TT CITY MANAGER NAME, TITLE REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDERATION: Accept the change order report for the Richfield Municipal Project for an aggregate net effect- of areduction of $3,822 in items included in the project budget., RECOMMENDED ACTION: By Motion: Accept the Richfield Municipal Center change order report for an aggregate net effect of a reduction of $3,822 in items included within the project budget. II. BACKGROUND II Resolution, No. 10309 provides the City Manager the authority to approve change orders for all contracts awarded by the City Council for the construction of the new Richfield Municipal Center subject to the following limitations: • Up to an aggregate of $25,000 for non-budgeted items • Up to an aggregate of $100,000 for items within the project budget Following the approval of such change orders, the City Manager must report this information to the City Council. ', Attached is the list of the approved project change orders since the March 22, 2011 City Council meeting. Some change orders represent an increase to the originally awarded contract and some represent a decrease. In this particular circumstance, the aggregate net effect of the change orders before the~Council on April 12, 2011 is a reduction of $3,822. All of the change orders are budgeted items. Total net project change orders to- date is $278,914. 041X0 III. BASIS OF RECOMMENDATION A. POLICY • In order to maintain the construction schedule of the Richfield Municipal Center project and respond to change order requests in a timely manner, the City Council has authorized (Resolution No. 10309) the City Manager to approve change orders up to an aggregate value of $100,000 for budgeted items and up to an ;aggregate value of $25,000 for non-budgeted items. B. CRITICAL TIMING ISSUES • The City Manager must report approved change orders for the Richfield Municipal Center to the City Council at the next Council meeting. • These change orders have already bee_ n approved and, in most cases, implemented. C. FINANCIAL • The change orders before the Council for review on April 12, 2011, represent a net effect of a reduction of $3,822 for budgeted items. • Total net project change orders to-date is $278,914. D. LEGAL • NA E. ENVIRONMENTAL CONSIDERATIONS • NA IV. ALTERNATIVE RECOMMENDATION~S~ • None. V. ATTACHMENTS • Richfield Municipal Center Change Order Log VI. PRINCIPAL PARTIES EXPECTED AT MEETING • None ~E-) L •+ V ~ L ~ ~ U N c m 0 o a n ~ ~ o U o~$ U ~ c a_> - ~ aS - O H C H U ~ ~ C H U cn U > +r 3 °o °o o o ° 0 O °o p ~ ao ~ ° N N ~ ~ M ~ oNO Q N f~ M N >+ ~ O O rn > ~' U c U ~L , ~ L ~ ~ O ~ I N ~ U ~ f0 p m 'B N C ~ O ~ " O O O (6 V N i Q , L ~ ~ . N ~ ~ ~ ~ p ~ ~ ~ ~ r U C~ ~ m ~ U1 C ~ ~ O ~ N N C O V N U .~ . . Y ~ a~ C ~ n L d N ~ ~ O O ' U _ ~ N N p ~ O ~ 0 N d f6 U ~ N ~ I 01 m d m ~ - f6 ~ ~ ~ p~ I- N t6 c ~ O ~ L .~ p .C V m c F a ~ .. 2 cn d ~ Q Z ~ ~ ti rn a ~ ~ ~ ~ ti ~ ~ o ° ~ ti ti r~ ~ V ~ J L L 0 C U AGENDA SECTION: PUBLIC HEARINGS AGENDA ITEM # 10 REPORT # 81 r STAFF REPORT CITY COUNCIL MEETING APRIL 12, 2011 REPORT PREPARED BY: DEPARTMENT DIRECTOR REVIEW: REVIEWED BY CITY MANAGER: BETSY OSBORN, SUPPORT SERVICES DIVISON MANAGER ~" ITEM FOR COUNCIL CONSIDERATION: Public hearing for consideration of the issuance of new on-sale'intoxicating and Sunday liquor licenses, for Richfield Hotel Associates d/b/a Ramada, 7745 L ndale Avenue South. I. RECOMMENDED ACTION: Conduct and close the public hearing and by', motion: • Approve the issuance of new on-sale intoxicating and Sunday liquor licenses, for Richfield Hotel Associates d/b/a Ramada, 7745 Lvndale Avenue South. II. BACKGROUND '~, On January 7, 2011, the City received new applications and other required documents for on-sale intoxicating and Sunday liquor licenses, for Richfield Hotel Associates d/b/a Ramada. The applicant has paid the relquired licensing fees. The Public Safety background investigation has been completed and reveals the following: ~ Richfield Hotel Associates is a Partnership compromised'of five individual owners. They are as follows: Thomas W. LaSalle, Arthur Petrie, (William L. Brusman, John Hankinson and Bruce Nimmer. There'~,are also limited partnerships associated with the ownership of Richfield Inn Associates that are companies owned by these five general partners. Criminal history checks were conducted on all five of the general partners. None of these individuals has any criminal record. In addition, no criminal 041211 PH Richfield Hotel Associates Ramada New Liquor Licenses records were found for Adam Reed Selby, who serves as the manager of the establishment. The Richfield Hotel Associates is managed by LaSalle Group Limited located in Bloomington, MN. The property is owned by the applicant with Numora Asset Capital Corporation holding the mortgage. All general sales, real estate and withholding taxes have been paid and are current. Proof of liquor liability insurance coverage has been received showing United Fire and Casualty affording the required coverage. Proof of Workers' Compensation insurance coverage has also been supplied. As a result of this being a new request for an on-sale intoxicating and Sunday liquor license, there is no need for an accountant's statement to be submitted regarding the food/alcohol ratio. There have been seven Public Safety/Police contacts with Ramada since January 1, 2011. These calls included two suspicious persons, four thefts, and one test. As this is a request for a new license, there are no previous "calls for service" contact records to compare this with. Environmental Health staff have received no complaints regarding the Ramada during the past year. On-sale intoxicating and Sunday Liquor licenses require owners of these establishments to comply with Resolution No. 9511, which outlines discipline they can expect if any ongoing problems occur. A copy of this resolution has been given to the owners of the establishment. There are no distance requirements to notify neighbors of the issuance or renewal of on-sale intoxicating and Sunday liquor licenses. The Notice of Public Hearing was published in the Richfield Sun Current on March 24, 2011. On October 16, 2008, the Richfield Police Department conducted an alcohol compliance check at the Ramada. On that date, an employee of the Ramada sold alcohol to an underage individual. The employee responsible for serving alcohol to the underage youth was formally charged and terminated as an employee approximately two weeks after the incident occurred. They also closed the bar portion of the establishment at this time and no longer served alcohol to patrons and guests. Ramada has recently purchased a Metro Logic Focus I.D. Reader and believes that this device should assist in assuring that underage persons are not served. The manager of the establishment has also recently completed an alcohol training course and has scheduled additional courses for all employees to complete. III. BASIS OF RECOMMENDATION A. POLICY • The applicant has complied with all of the provisions of both City Codes and State Statutes pertaining to on-sale intoxicating and Sunday liquor licensing. • Based on the information supplied by the applicant and the investigation conducted, there appears to be no reason to deny the issuance of the licenses requested. B. CRITICAL ISSUES • The requirements of Resolution No. 9511 must be met. C. FINANCIAL • The required background investigation and licensing fees have been received. D. LEGAL • N/A E. ENVIRONMENTAL CONSIDERATIONS • None IV. ALTERNATIVE RECOMMENDATION(S~ • The Council could decide to deny the license request, which would mean that the current applicants would not be able to obtain on-sale intoxicating and Sunday liquor licenses. • Schedule the hearing for another date. However, this may delay the licensing process. V. ATTACHMENTS • List of Officers Breakdown of Public Safety contacts VI. PRINCIPAL PARTIES EXPECTED AT MEETING • Richfield Hotel Associates officer/staff lo- I Richfield Hotel Associates d/b/a Ramada Parts Thomas LaSalle Arthur Petrie William Brusman John Hankinson Bruce Nimmer n e rs/Off i ce rs/Directors Managing General Partner Managing General Partner Partner Partner Partner PUBLIC SAFETY CONTACTS January 1, 2011 -March 31, 2011 Ramada 2011 TOTAL CONTACTS 7 CRIMINAL CONTACTS 6 Incidents (see bottom of page for specifics) (6) Alarm (0) MISC. NON-CRIMINAL 1 Assists (0) Traffic (0) Inspections/Licensing (0) Medical/Fire (1) The criminal contacts from January 2011 through March 2011 were: four thefts and two suspicious persons/activity. (Numbers in parenthesis are included in total contact figures) AGEIv~A SECTION: PUBLIC HEARINGS AGENDA ITEM # 11 REPORT # 82 ~~~ STAFF REPORT CITY COUNCIL MEETING APRIL 12, 2011 REPORT PREPARED BY: DEPARTMENT DIRECTOR REVIEW: REVIEWED BY CITY MANAGER: ROBERT HINTGEN, UTILITY SUPERINTENDENT NAME, TITLE -_ ITEM FOR COUNCIL CONSIDERATION: Public hearing and second reading of reading of a transitory ordinance authoring the planning, design and rehabilitation of the Logan Avenue Water Tower and resolution for summary publication. I. RECOMMENDED ACTION: .Conduct and close the public hearing and by', motion: 1. Approve the second reading of the transitory ordinance authorizing the planning, design and rehabilitation of the Logan Avenue Water Tower (7420 Logan Avenue). II 2. Approve resolution for summary publicati 'ion of the transitory ordinance. II. BACKGROUND ~ 'i The one million gallon Logan Avenue Water Tower located at 7420 Logan Avenue South (near Donaldson Park) was built in 1963. The lash, reconditioning for this water tower occurred in 1996. ', ~ In September 2010 KLM Engineering performed a routine evaluation of the overall condition on the water tower. Based on their observations, the water tower was found to be in need of reconditioning within the next one to two years. This type of reconditioning if applied and maintained properly has a life span of 15 to 20 years. 041211 logantower On February 8, 2011, the City Council approved the proposal from Short Elliot Hendrickson Inc. (SEH) to provide the engineering and inspection services for the Logan Avenue Water Tower Reconditioning Project in an amount not to exceed $69,600. The Engineers estimated cost for the planning, design and rehabilitation of the tower is $800,000. On March 22, 2011, Council approved the first reading of this ordinance and set the public hearing for April 12, 2011. Pursuant to Section 8.05 of the City Charter, notice of the public hearing was published twice in the Sun Current fourteen days prior to the hearing. Publication dates were on March 31, 2011. and April 7, 2011 III. BASIS OF RECOMMENDATION A. POLICY • Pursuant to Section 8.04 of the City Charter, the project will require approval of a transitory ordinance because the estimated cost exceeds $500,000. B. CRITICAL TIMING ISSUES • Based on the 2010 water tower inspection data, the recommended repairs should be addressed within the next one to two years. C. FINANCIAL • Proceeds from the future sale of a General Obligation Water bond will fund the rehabilitation of the water tower. • Council will consider the approval of this bond at this (April 12tH) Council Meeting.. D. LEGAL • The City Attorney has reviewed the ordinance and summary publication resolution. E. ENVIRONMENTAL CONSIDERATIONS • Water is an essential resource to the community and needs to be provided in a safe manner. IV. ALTERNATIVE RECOMMENDATION(S~ • Council may choose to take no action at this point, V. ATTACHMENTS • Transitory Ordinance • Resolution for Summary Publication VI. PRINCIPAL PARTIES EXPECTED AT MEETING • None TRANSITORY ORDINANCE NO. AN ORDINANCE APPROVING A CAPITAL IMPROVEMENT PROJECT PURSUANT TO RICHFIELD CITY CHARTER SECTION 8.04 THE CITY OF RICHFIELD DOES ORDAIN: Section 1. Background; findings. 1.01. Section 8.04 of the Richfield City .Charter requires that any capital improvement on City-owned property that has an estimated cost exceeding $500,000.00 or expenditures for design or engineering costs exceeding $75,000.00 must be approved by ordinance after a public hearing. 1.02. It is proposed that the City Council approve a capital improvement project on City owned property located near 76 h and Logan Avenue. 1.03. The capital improvement project consists of reconditioning and painting the Logan Avenue Water Tower (the "Project"). The water tower was last painted in 1995. It was last inspected in 2010 and was found to be in need of repainting. 1.04. The estimated construction cost of the capital improvement, excluding design and engineering costs, is $800,000.00. The estimated design and engineering costs are $69,600.00. 1.05. A public hearing was held on April 12, 2011 after due notice as required by Section 8.05 of the Richfield City Charter.. 1.06. The Council finds and determines that it is in the best interests of the City and its inhabitants that the Project be approved. Sec. 2. Approval; effective date. 2.01. The Project is approved, and planning, design and construction of the Project may proceed according to the procedures required by law. 2.02. The purpose of this Ordinance is to comply with the requirements of Section 8.04 of the Richfield City Charter. This Ordinance shall not be construed to require that the City proceed with the Project; nor does it vest any rights in the Project to any individual or entityy. The-City Council reserves the right to abandon the Project or to modefy elements of the Project, if the Council deems abandonment or modification to-be m the public interest. 2.03. This ordinance is effective 30 days after its publication. Adopted this 12~' day of April, 2011. Debbie Goettel, Mayor ATTEST: Nancy C. Gibbs, City Clerk r~ - a RESOLUTION NO. .RESOLUTION APPROVING SUMMARY PUBLICATION OF A TRANSITORY ORDINANCE APPROVING A CAPITAL IMPROVEMENT PROJECT FOR THE PLANNING, DESIGN AND REHABILITATION OF THE LOGAN AVENUE WATER TOWER PURSUAINT TO RICHFIELD CITY CHARTER SECTION 8.04 WHEREAS, the City has adopted the above referenced ordinance to the Richfield City Code; and WHEREAS, the verbatim text of the amendment is cumbersome, and the expense of publication of the complete text is not justified. NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Richfield that the following summary is hereby approved for official publication: SUMMARY PUBLICATION BILL NO. 2011 - AN ORDINANCE APPROVING A CAPITAL IMPROVEMENT PROJECT FOR THE PLANNING, DESIGN AND REHABILITATION OF THE LOGAN AVENUE WATER TOWER PURSUANT TO RICHFIELD -CITY CHARTER SECTION 8.04 This summary of the ordinance is published pursuant to Section 3.12 of the Richfield City Charter. The ordinance authorizes a capital improvement project for the planning, design, and rehabilitation of the Logan Avenue Water Tower. The estimated construction cost of the capital improvement, excluding design and engineering costs, is $800,000.00. The estimated design and engineering costs are $69,600.00. Copies of the ordinance are available for public inspection in the Public Works Department during normal business hours or upon request by calling Robert Hintgen, Utilities Superintendent at 612-861-9165. Adopted by the City Council of the City of Richfield, Minnesota this 12th day of April, 2011. ATTEST: Debbie Goettel, Mayor Nancy Gibbs, City Clerk AGENDA SECTION: RESOLUTIONS AGENDA ITEM # 12 REPORT # 83 STAFF REPORT CITY COUNCIL MEETING APRIL 12, 2011 REPORT PREPARED BY: CHRJ,S•R.EG~S, FINANCE MANAGER NA.rtE, REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDERATION: Consideration of a resolution providing for the sale of $1,490,000 General Obligation Water Revenue Bonds, Series 2011A. , I:. RECOMMENDED ACTION: By Motion: Approve the attached resolution providing for the sale of $1.490.000 General Obligation Water Revenue Bonds, Series 2011A. II. BACKGROUND ', • During 2006 the City issued $6,080,000 G.O. Water and Sewer Revenue Bonds to finance capital improvements to the Water and Sewer operations of the City. All of the improvements to be funded by Ithe 2006 bond issue have been completed. • At the present time there is a need for further capital improvements to the water utility infrastructure. It is planned that the funding for the improvements would be provided through a combination of an internal loan and the issuance of general obligation revenue bonds. ~, • At the October 12, 2010 City Council Study Sessi'i n, the Council reviewed the 2011 utility operation budgets, rates, capital improvements and the potential for a bond issue. !, • The Water Utility staff has been working_with engineering firms to determine the needs and cost of replacement and refurbishment of the infrastructure of the utility. • At the November 23; 2010 City Council meeting, the Council approved the first phase of funding for the improvements by authorizing a $1,000,000.00 internal loan to the Water Utility. The loan carried a term of ten (10) years at an interest rate of 2%. 0412 G O Water Revenue Bonds • At the February 8, 2011 City Council meeting, the Council approved a resolution that allowed staff to incur costs for proposed water infrastructure capital improvements prior to issuance of revenue bonds. The resolution allowed costs incurred up to sixty days prior to Council approval to be reimbursed using the proceeds of the revenue bonds proposed to be issued. III. BASIS OF RECOMMENDATION A. POLICY • The Water Utility infrastructure is an important asset of the City and needs to be maintained at up to date operating standards. B. CRITICAL TIMING ISSUES • If the improvements are not completed, the Water Utility infrastructure could possibly face equipment failures and interruptions in operations. C. FINANCIAL • The par value of the bonds to be issued is $1,490,000 with net proceeds for the project of $1,440,000. • The total funding for the planned improvements will be provided through the $1,000,000 internal loan and $1,440,000 of bond proceeds for a total of $2,440,000. • The planned sources and uses are as follows: Sources Internal loan $1,000,000 Bond proceeds 1,440,000 Total Sources $2,440,000 Uses Logan Water Tower Rehabilitation $ 860,000 Clarifier & Baffle Replacement 1,240,000 Chain Room Pipe/Motor Replacement 240,000 Generator Improvements 100,000 Total Uses $2,440,000 The debt service of the bonds and the internal loan will be paid from operations of the Water Utility. All improvements proposed are included in the 2011. Capital Improvement Budget with the exception the backup generator improvements. The generator improvements are needed due to new emission standards required by the Environmental Protection Agency. The City has also applied for participation with the Minnesota Public Facilities Authority Credit Enhancement Program. The purpose of the program is to reduce borrowing costs on the issuance of general obligation bonds by providing a limited state guarantee on the bond payments, which then allows for the possibility of issuers to receive higher bond ratings. 2 D. LEGAL • Legal Council has reviewed the Pre-Sale report and the attached resolution. E. ENVIRONMENTAL CONSIDERATIONS • N/A IV. ALTERNATIVE RECOMMENDATION~S~ • Decide not to proceed with the sale of bonds, reduce the planned improvement and only utilize the existing internal loan. V. ` ATTACHMENTS • A Resolution Providing for the Sale of $1,490,000 General Obligation Water Revenue Bonds, Series 2011A. • Bond Pre-Sale Report. VI. PRINCIPAL PARTIES EXPECTED AT MEETING • Representative from Ehlers & Associates, Inc. 3 ~a-~ RESOLUTION NO. RESOLUTION PROVIDING FOR THE ISSUANCE AND SALE OF GENERAL OBLIGATION SEWER REVENUE BONDS, SERIES 2011A, IN THE APPROXIMATE AGGREGATE PRINCIPAL AMOUNT OF $1,490,000 BE IT RESOLVED By the City Council of the City of Richfield, Minnesota (the "City"), as follows: 1. Background. It is determined that: (a) the City engineer has recommended the construction of various capital improvements to the City's drinking water infrastructure (the "Project"); (b) the City is authorized by Minnesota Statutes, Sections 444.075 and 115.46 and Minnesota Statutes, Chapter 475, as amended (collectively, the "Act"), to finance. all or a portion of the cost of the Project. (the "Project Costs") by the issuance of general obligation bonds of the City payable from the net revenues of the water system of the City. (c) it is necessary and expedient to the sound financial management of the City to issue its General Obligation Water Revenue Bonds, Series 2011A (the "Bonds"), in the original aggregate principal amount of $1,490,000, pursuant to the Act to provide financing for the Project. - 2. Sale Authorized. In order to provide financing for the Project, the City will therefore issue and sell the Bonds in the approximate amount of $1,490_,000. 3. Authority of Financial Advisor.. Ehlers & Associates, Inc. is authorized and directed to solicit proposals for the sale of the Bonds. The City Council will meet at 7:00 p.m. on Tuesday, April 26, 2011, to consider proposals on the Bonds and take other appropriate action with respect to the Bonds. 4. Authority of Bond Counsel. The law firm of Kennedy & Graven, Chartered, as bond counsel for the City, is authorized to act as bond counsel and to assist in the preparation and review of necessary documents, certificates and instruments relating to the Bonds. The officers, employees and agents of the City are hereby authorized to assist Kennedy & Graven, Chartered, in the .preparation of such documents, certificates, and instruments. ~ - 5. Covenants. In the resolution awarding the sale of the Bonds the City Council will set forth the covenants and undertakings required by the Act. 6. Official Statement. In connection with the sale of the Bonds, the officers or employees of the City are authorized and directed to cooperate with Ehlers & Associates, Inc. and participate in the preparation of an official statement for the Bonds and to execute and deliver it on behalf of the City upon its completion: 4 ~a-a 7. State Credit Enhancement. In the resolution awarding the sale of the Bonds the City will covenant and obligate itself to be bound by the provisions of Minnesota Statutes, Section 446A.086, which provides for a guarantee by the State of Minnesota, acting through the Minnesota Public Facilities Authority (the "Authority") of any deficiency of debt service payments on the Bonds. The City Council authorizes and directs the Mayor and the City Manager to execute a Credit Enhancement Program Agreement with the Authority, in substantially the form on file with the City, which provides for the terms of the guarantee and City repayment of any deficiencies on the Bonds paid for by the State of Minnesota, acting through the Authority. The City Council additionally authorizes payment of the $500 application fee to the Authority. Approved by the City Council of the City of Richfield this 12th day of April 2011. Debbie Goettel, Mayor ATTEST: Nancy Gibbs, City Clerk 5 ~a-3 STATE OF MINNESOTA ) COUNTY OF HENNEPIN ) CITY OF RICHFIELD ) I, the undersigned, being the duly qualified and acting City Clerk of the City of Richfield, Minnesota (the "City"), hereby certify that I have carefully compared the attached and foregoing extract of minutes of a regular meeting of the City Council of the City held on Tuesday, April 12, 2011, with the original minutes on file in my office and the extract is a full, true and correct copy of the minutes, insofar as they relate to the issuance and sale of the City's General Obligation Water Revenue Bonds, Series 2011A, in the approximate aggregate principal amount of $1,490,000. WITNESS My hand as City Clerk and the corporate seal of the City this day of 2011. City Clerk City of Richfield, Minnesota 6 ja-~ _ Debt Issuance Services -- n n ---- ~i ---J April 12, 2011 Pre-Sale Report for $1,490,000 General Obligation Water Revenue Bonds, Series 2011 A City of Richfield, Minnesota FREERS LEADERS IN VURUC FINANCE Minnesota Offices also in Wisconsin and Illinois www.ehlers-inc,com phone 651-697-8500 3060 Centre Pointe Drive fax 651-697-8555 Roseville, MN 55113-1122 Ia s Debt Issuance Services Details of Proposed Debt Proposed Issue: $1,490,000 General Obligation Water Revenue Bonds, Series 201 lA Purpose: The Bonds will help finance various improvements to the water system, including: • Logan Water Tower Rehabilitation $860,000 • Water Plant Improvements o Replacement of Clarifier and Baffle $1,240,000 o Chain Room /Motor $240,000 o Well House Generator Improvements $100,000 The balance of the funding will come from approximately $1,000,000 in available City funds. Authority: The Bonds are being issued pursuant to Chapter 444, which allows cities to issue debt without limitation as long as debt service is expected to be paid from water and sewer revenues. Funding Source(s): For the Bonds, the city will be paid 100% from net revenues of the City's Water Fund. Risk Factors: Should water revenues be insufficient to pay debt service, the City is pledging its general obligation tax levy. Arbitrage Monitoring: The IRS is becoming more active in surveying municipal issuers. Therefore, IRS rules regarding the amount of interest that the City may earn on bond proceeds is more of a concern. Because the City is issuing less than $5,000,000 in this calendar year, the proceeds can earn interest without restriction for three years. The City will also need to keep its debt service funds within IRS parameters to avoid penalties on carrying too high of a balance during the life of the issue. Rating: The City currently has a "AA+" rating from Standard and Poor's -and we have asked them to rate these bonds. Additionally, the Credit Enhancement provided by the Minnesota Public Facilities Authority should result in a "AAA" enhanced rating (see below). Presale Report October $, 2009 Page 2 ~a-~ Debt Issuance Services Bank Qualification: Because the City is issuing less than $10,000,000 in the calendar year, the City will be able to designate the Bonds as "bank qualified" obligations. Bank qualified status broadens the market for the Bonds, which can result in lower interest rates. Term/Call Feature: The 2011A Bonds are being issued fora 20-year period. Interest is payable each six months beginning February 1, 2011. Principal on the Bonds will be due on February 1 in the years 2013 through 2032. The 2011 Bonds maturing February 1, 2021, and thereafter will be subject to prepayment at the discretion of the City on February 1, 2020. State Guarantee City bond issues for water, sanitary sewer and storm water facilities are Program: now authorized to receive credit enhancement from the state. Under current bond ratings, the state credit enhancement would bring a Standard & Poor's "AAA" rating. To qualify for the credit enhancement, a city must submit an application and $500 fee to the state. Other We will continue to monitor the market and the call dates for the City and Considerations: will alert you to any future opportunities. Presale Report October 8, 2009 Page 3 la--~ Debt Issuance Services Proposed Debt Issuance Schedule Pre-Sale Review by Council: April 12, 2011 Distribute Official Statement: Week of April 18 Conference with Rating Agency: Week of April 18 City Council Meeting to Award Sale of the Bonds: Apri126 Estimated Closing Date: May 16 Attachments Sources and Uses of Funds Proposed Debt Service Schedule Bond Buyer Index Resolution Authorizing Ehlers to Proceed With Bond Sale Ehlers Contacts: Financial Advisors: Jon North (651) 697-8545 Rebecca Kurtz (651) 697-8516 Bond Analysts: Diana Lockard (651) 697-8534 Debbie Holmes (651) 697-8536 Bond Sale Coordinator: Alicia Aulwes (651) 697-8523 The Official Statement for this financing will be emailed to the Council Members or mailed to their home address for review prior to the sale date. Presale Report October 8, 2009 Page 4 AGENDA SECTION: RESOLUTIONS AGENDA ITEM # 13 REPORT # 84 STAFF REPORT CITY COUNCIL MEETING APRIL 12, 2011 REPORT PREPARED BY: CHRISTINE COSTELLO, COMMUNITY DEVELOPMENT SPECIALIST NAME, TITLE DEPARTMENT DIRECTOR REVIEW: SIGNATU REVIEWED BY CITY MANAGER: I ITEM FOR COUNCIL CONSIDER I Consideration of a Right-of-Entry and Standstill Agreement for r ATION: use of the northern half of 7700 Pillsbury Avenue, the City's former Public Works Maintenance i acility, by Ron Clark Construction and Design Company. I. RECOMMENDED ACTION: By Motion: Approve Right-of-;.,Entry and Stan dstill Agreement for use of the northern half of 7700 Pillsbury Avenue , the City's former Public Works Maintenance Facility, by Ron Clark Co nstruction and Design Company. II. BACKGROUND Ron Clark Construction and Design (Ron Clark) presented a proposal to both the Richfield City Council (May 12, 2009) sand the Richfield Housing and Redevelopment Authority (HRA) (January 19, 2010) regarding their plan to develop the former City Garage/HRA Mortuary site: The proposal included the development of 66 for-sale two and three-story townhome units. Before expending additional time and expense on their roposal for the site, Ron Clark expressed a desire to enter into!a Preliminary Development Agreement (Agreement) that would give them exclusive development rights to the property. In March 2010 the Richfield HRA granted Ron Clark approval of the Preliminary 041211-Ron Clark_ROE Agreement.doc Agreement and the City Council approved the Right-of-Entry Agreement needed for the Agreement. Both agreements expired in November 2010. Due to concerns about the availability of financing for for-sale housing, Ron Clark has been exploring alternative housing developments such as rental housing. The Minnesota Housing and Finance Agency`s (MHFA) Housing Tax Credit program is being contemplated as a potential funding source. Ron Clark received funding from MHFA for a project they are doing in Savage called Village Commons, which is a 66-unit, three-story apartment building of workforce housing. The MHFA funding offers a ten year reduction in tax liability to owners and investors for eligible affordable rental housing units produced as a result of new construction, rehabilitation, or acquisition. MHFA is the primary agency that is designated by the Minnesota Legislature to allocate the Housing Tax Credit program. Ron Clark has decided to move forward with an application to MHFA for funding their proposed project on the north portion of the former City garage site. On March 21 st the HRA voted 4 to 1 to approve a new Preliminary Agreement with Ron Clark. In summary, this Agreement would prohibit the HRA from soliciting proposals from, or entering into a development agreement with any other party for a period of fifteen months with a six month extension if Ron Clark has made application to MHFA. During this time the HRA would obtain appraisals for all of the publicly owned land in the project area; the expense of such appraisals would be reimbursed by Ron Clark if they ultimately proceed with the project. As part of the preliminary agreement process, environmental studies such as soil borings and sample monitoring will need to be conducted to ensure that any hazardous substance or contaminants that may be found in the soils or groundwater can be remediated. Therefore aRight-of-Entry and Standstill Agreement are needed between Ron Clark and the City before any work on environmental investigation or remediation could begin. While this Right-of-Entry and Standstill Agreement would allow Ron Clark access to the City's property for their environmental investigation, it does not commit the City to remediating any contaminants that may be identified. If such issues were identified as a part of the proposed environmental investigation, the resolution to those environmental issues would be subject to a future'agreement or in negotiations for the sale of the property (subject to City Council consideration). Also under the Right-of-Entry and Standstill Agreement the Gity is not granting any permanent interest in the city property to Ron Clark or the HRA, or giving possession of the city property to Ron Clark or the HRAJ Nothing within the Right- of-Entry and Standstill Agreement obligates the City to agree to sell the city property to Ron Clark or the HRA after the expiration of the Preliminary Agreement. III. BASIS OF RECOMMENDATION ', ~ A. POLICY • The Richfield Comprehensive Plan has been used as a guide for the redevelopment of the former Richfield Public Works Maintenance Facility (7700 Pillsbury Avenue). The Comprehensive Plan indicates that this area is guided for Medium-High Density Residential use. Medium High Density Residential is considered a density that would range from 12 to 24 units per acre and no greater than four stories tall. It is typical for a prospective property buyer to conduct environmental investigation on a property before entering into negotiations to purchase that property. B. CRITICAL TIMING ISSUES The Right-of-Entry and Standstill Agreement are necessary so that Ron Clark may enter City owned property to undertake environmental work prior to any negotiations between Ron Clark and the City for the sale of the property. C. FINANCIAL • The City is not responsible for any of the costs associated with the proposed environmental investigation. • The costs of any environmental remediation, if ultimately required, would be the subject of future City Council deliberation. D. LEGAL • Legal counsel drafted the Agreement and Right-of-Entry and Standstill Agreement in cooperation with staff and Ron Clark. E. ENVIRONMENTAL CONSIDERATIONS • The Right-of-Entry and Standstill Agreement would allow for the implementation of soil borings, sample monitoring wells, and other environmental studies on the property in order to identify whether there may be hazardous substances, pollutants or contaminants present that would need to be removed before any development could begin on the site. IV. ALTERNATIVE RECOMMENDATION(S~ • Approve the Right-of-Entry and. Standstill Agreement with added provisions or modifications. • Do not approve the Right-of-Entry and Standstill Agreement. • Continue the consideration of the Right-of-Entry and Standstill Agreement to a later meeting date. ', V. ATTACHMENTS • Right-of-Entry and Standstill Agreement • Map VI. PRINCIPAL PARTIES EXPECTED AT MEETING • Mike Roebuck, Vice President of Ron Clark Construction 13-1 EXHIBIT C CITY RIGHT OF ENTRY AND STANDSTILL AGREEMENT. THIS AGREEMENT, made on this day of , 2011, (the "Effective Date") by and between THE CITY OF RICHFIELD, a Minnesota municipal corporation ("City") and THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF RICHFIELD, a Minnesota public body corporate and politic ("HRA") and R.E.C.,Inc.a Minnesota Corporation DBA RON CLARK CONSTRUCTION AND DESIGN, (" CLARK") I. RECITALS 1.01. City is the fee simple owner of the real estate located at the addresses and legally described as such on the attached Attachment A ("City Property"). HRA is the owner of real estate located at the address and legally described as such on the attached Attachment A ("HRA Property") 1.02. HRA is undertaking discussions Clark concerning the possibility of redeveloping all of the property shown on Attachment A. Such redevelopment would necessitate Clark purchasing the City Property and the HRA Property. 1.03. HRA wishes to have its consultants conduct soil borings, dig and sample monitoring wells and conduct other environmental studies on the City Property in order to identify whether there may be hazardous substances, pollutants or contaminants present on the City Property, and to conduct appraisals to determine the fair market value of the City Property. 1.04. Clark also desires to secure the consent of City to enter the City Property for the purpose of conducting land surveys, and geotechnical testing. CLARK has requested that City grant 13-a its consent to the entry of these additional consultants onto the City Property to conduct their studies. 1.05. It is understood that in executing this agreement, City will not be granting (a) any permanent interest in the City Property to CLARK or the HRA, or (b) exclusive use or possession of the City Property to CLARK or the HRA. II. AGREEMENT NOW, THEREFORE, in consideration of the premises and their mutual promises, the parties hereto hereby agree as follows: 2.01. Right of Entry. Effective upon the date'hereof, City hereby grants: (i) to Clark, its agents, employees, contractors arid' invitees, and such other consultants as Clark may elect, the right to enter upon the City Property, for the purpose of conducting the activities described in 1.04 above; and (ii) to the HRA, its agents, employees; contractors and invitees and such other consultants as the HRA may elect, the right to enter upon the City Property, for the purpose of conducting the activities described in 1.03 above. 2.02. Consideration. In consideration for such right of entry, as to their separate activities, Clark and the HRA agree to: (a) Notify City of the- date and time. that work by Clark or the HRA or Consultants on the City Property will commence under this Agreement which notice shall be at least five (5) business days prior to doing any work on the City Property in order to permit City's employees or consultants retained by City to be present during the time any work is being done by CLARK or its Consultants; (b) Secure all appropriate government approvals and permits for any work that will 13-3 occur within public streets adjacent to the City Property; (c) Provide a copy of all test results 'and reports prepared by Clark's or HRA's employees or Consultants (except appraisal reports) evaluating the conditions present on the City Property to City as soon as reasonably possible following final completion thereof. (d) Dispose of all solid waste generated during the course of Clark's or HRA's sampling activities and other work on the City Property in accordance with applicable federal, state and local laws, rules and regulations. (e) Do the work in the shortest period of time reasonably necessary to complete such activities authorized under this Agreement as Clark or HRA, in their sole discretion, shall elect to undertake; (f) Use the City Property only for the purposes described herein and not park or store any equipment on the City Property, except during the limited periods of time when the work on the City Property which is contemplated by this Agreement is actually in progress; (g) Do no unnecessary damage to the City Property and restore the City Property to substantially the same condition as the condition in which it was found by Clark or HRA at the time of Clark's or HRA's or their Consultants' entry upon the City Property pursuant to this Agreement. As soon after completion of its work on the City Property as allowed by applicable authorities, HRA shall properly abandon and remove -any well installed by HRA or its Consultants, in accordance with Minnesota Department of Health regulations; (h) Hold City harmless from and indemnify City from any and all claims, damages, 13-1 judgments or obligations, including the cost of defense of suit, arising out of damage to City Property or arising out of injury to anyone incurred or alleged to have been incurred in 'connection' with or as a result of any work done pursuant to this Right of Entry, or as a result. of Clark's or the HRA or their Consultants' intentional torts or negligence. Notwithstanding the foregoing, unless the City Property is acquired by it, neither Clark nor the HRA shall not be responsible for any submission or application for further investigation or feasibility analysis or the proper methods or cost of removal, treatment or .disposal of any pollutants, contaminants or hazardous substances present on the City Property, it being the sole responsibility of City to perform these tasks if required; (i) Clark or HRA shall ensure that its Consultants or their contractors or invitees which enter the City Property pursuant to this Agreement shall carry insurance during the time any work is done on the City Property in accordance with the following minimum requirements: Workers' Compensation Insurance with limits as provided by statute, with all necessary statutory elections to provide coverage for and/or claims made by any person doing work on the City Property pursuant to this Right of Entry; Employer's liability insurance (often included as coverage (b) in the Workers' Compensation policy) with limits of $100,000; Comprehensive Auto (and truck) Liability Insurance with minimum combined single limits of $1 million per occurrence; Comprehensive General Liability Insurance (including coverage for contractual liability, products and completed operations liability, liability arising out 135 of explosion, or underground related incidents) with minimum combined single limits of $1 million per occurrence. In addition, the Comprehensive General Liability policy shall include City as additional insured with respect to work done on the City Property. (j) Clark will upon completion of all soils testing provide a complete copy of all soils reports to the City and HRA (k) Protect all monitoring wells with lockable caps and at least three protected posts. 2.03. Expiration. Unless extended by the mutual agreement of the parties, the right of entry provided under this Agreement will automatically expire 15 months after the Effective Date. 2.04 Standstill. Until the expiration of this Agreement, the City agrees that it will not: (i) sell or encumber or engage in discussions involving the sale or encumbrance of the City Property to anyone other than the parties to this Agreement; (ii) solicit proposals from any third party involving the proposed development of the City Property. Nothing herein shall be construed: (i) as obligating the City to subsequently. agree to sell the City Property to the HRA or Clark; (ii) as agreeing to any of the terms of any sale; or (iii) as agreeing to any potential use or development of the City Property in the event of sale. 2.05. Governing Law. This Agreement shall be interpreted in accordance with the laws of the state of Minnesota. 2.06. Notices and Demands. All notices, demands or other communications under this Agreement shall be effective only if made in writing and shall be sufficiently given and deemed given when delivered personally, transmitted by facsimile, or mailed by certified mail, return receipt requested, postage prepaid, properly addressed as follows: 13-0 If to City: City of Richfield Attn: City Manager 6700 Portland Avenue South Richfield, MN 55423 With a copy to: Corrine A. Heine Kennedy & Graven, Chartered 470 U. S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 If to CLARK: Ron Clark RON CLARK Construction and Design 7500 West 78~' Street Edina, MN 55439 With Copy to: If to HRA: Richfield HRA Attn: Executive Director 6700 Portland Avenue South Richfield, MN 55423 With a copy to: John B. Dean Kennedy & Graven, Chartered 470 U. S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 Or to such other persons as the parties may from time to time designate in writing and forward to the other persons entitled to receive notice as provided in this section. 2.07. Amendment. This Agreement may be amended by the parties hereto only by written instrument executed with the same procedures and formality as were followed in the execution of this Agreement. ~ 3 -"7 IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed in their names and on their behalves on or as of the above date. City: CITY OF RICHFIELD By: Its Mayor By: Its City Manager RON CLARK Construction and Design, a Minnesota By: Its: Richfield HRA By: Its Chair By: Its Executive Director 13-8 ATTACHMENT A List of City Property Addresses and Legal Descriptions 7700 Pillsbury Avenue South north portion only) Lot 3, except the north 75.00 feet thereof, all of Lots 4 and 5, Block 4, R.C. Soens Addition, according to the recorded plat thereof on file or of record in the office of the Registrar of Titles, Hennepin County, Minnesota. C-A-1 Error! Unknown document property name. Proposed Ron Clark Development Area ~3-q ,.. -.C ~r~~:, ~~,. Created: CC 10/26/09 AGENDA SECTION AGENDA ITEM # ~ REPORT # E I J STAFF REPORT CITY COUNCIL MEETING APRIL 12, 2011 REPORT PREPARED BY: DEPARTMENT DIIZECTOR REVIEW: REVIEWED BY CITY MANAGER: d ITEM FOR COUNCIL CONSIDERATION: Consideration of a resolution approving the contract with Interrational Association of Firefiahters Local 1215 for the contract period January 1, 2011 jthrough December 31, 2011. I. RECOMMENDED ACTION: By Motion: Adopt the resolution approving ~he provisions of the 2011 labor agreement with the International Association of Firefighters Local 1215 bargaining unit and authorize the, City Manager to execute the aareement. II. BACKGROUND City staff has completed labor negotiations with the International Association of Firefighters Local 1215 (Union). The provisions of the contract agreement for 2011 cover all the employees in this Union.. There are Curren ly twenty-four employees represented in this unit. During the course of negotiations, City staff made the U~ion aware of the severe financial constraints the City is facing!,in 2011 and beyo d, and agreed on a two percent wage increase for the entire 2011 contract year Upon ratification of this contract, all of the City's five bargaining units, as well ash General Services and Management employees, will have received a two percent wage adjustment for 2011. RESOLUTIONS 14 85 JESSE SWENSON, HUMAN RESOURCES COORDINATOR . N~ 0412Firefighter contract The tentatively approved one year contract settlement includes the following significant changes: Wages A two percent wage increase for contract year 2011 Health Insurance A $60 increase to the Employer health insurance contribution which provides full coverage at the High Option plan for single Employee,at $734.10 per month, $915 per month for Employee plus spouse or Employee. plus child(ren) coverage and $965 per month for Employee plus family coverage. For Employees who select the single tier $2500 High Deductible Health Plan option, the Employer will contribute a maximum of $250 per month into the Employee's Health Savings Plan. A $1 increase to the Employer contribution for Employee single dental insurance coverage, from $37 per month to $38 per month. Clothing_Allowance A $25 increase to the annual clothing allowance, from $545 to $570. III.. BASIS OF RECOMMENDATION A. POLICY • The City has met and negotiated in good faith with the Union and its representatives-and is bound under the Public Employer's Labor Relations Act to meet and bargain over the terms and conditions of employment: • The proposed settlement for the health and dental insurance provisions is identical to those provided to'non-union City employees and with the City's other four bargaining units. The City has a long history of providing the same level of insurance benefits to all eligible _ City employees. • The two percent wage increase represents the same two percent wage adjustment implemented for non-union City employees and for the cities other four bargaining units. This is the last contract settlement to be negotiated for 2011. • The two percent wage adjustment and health insurance increase is comparable to other bargaining groups in similar metro cities. A survey of Stanton 5 cities indicates that those cities are providing anywhere from a 1 to 3 percent increase. The City has a long history of trying to remain as close to the mid-range as possible for Stanton 5 cities, in terms of wages and benefits. B. CRITICAL TIMING ISSUES • In order to allow the City's accounting personnel to modify payroll records in a timely manner for 201.1 wages- and benefits, it is recommended that the City Council act on April 12, 2011 to adopt the attached resolution providing for contract changes; effective January 1, 2011. C. FINANCIAL • A maximum $60 increase in Employer monthly contribution towards - health insurance coverage for 2011. $1 per month increase in Employer monthly contribution towards employee single dental insurance in 2011. • A $25 increase to the clothing allowance in 2011. • Two percent wage increase for contract year 2011. D. LEGAL • If the terms of this agreement are not approved, further negotiation and/or mediation will be necessary. E. ENVIRONMENTAL CONSIDERATIONS • NA IV. ALTERNATIVE RECOMMENDATION(S~ • Do not approve the terms of this agreement and, prepare for further negotiation and/or mediation. • Defer discussion to another date. V. ATTACHMENTS • Resolution VI. PRINCIPAL PARTIES EXPECTED AT MEETING • None i~- ~ RESOLUTION NO: RESOLUTION APPROVING LABOR AGREEMENT BETWEEN THE CITY OF RICHFIELD AND ~' THE INTERNATIONAL ASSOCIATION OF FIREFIGHTERS (IAFF), LOCAL 1215 BARGAINING -UNIT FOR THE YEAR 2011 WHEREAS, the City Manager and the Richfield Firefighters IAFF Local 1215 have reached an understanding concerning conditions of employment for year 2011; and WHEREAS, it would be inappropriate to penalize IAFF Local 1215 members who have negotiated in good faith; and WHEREAS, the City Ordinance requires that contracts between the City and the exclusive representative of the employees in an appropriate bargaining unit shall be completed by Council resolution. NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby approve the Labor Agreement between the City of Richfield and IAFF Local 1215 Bargaining Unit for year 2011 under the provisions of the Labor Agreement to be implemented, effective January 1, 2011, and authorize the City Manager to execute the contract. Adopted by the City Council of the City of Richfield, Minnesota this 12th day of April, 2011. Debbie Goettel Mayor ATTEST: Nancy Gibbs City Clerk AGENDA SECTION: RESOLUTIONS AGENDA ITEM # 15 'REPORT # 86 STAFF REPORT CITY COUNCIL MEETING APRIL 12, 2011 REPORT PREPARED BY: DEPARTMENT DIRECTOR REVIEW: REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDERATION: Public hearing for consideration of action and a resolution regarding civil enforcement for HKD Lo, Inc., d/b/a Jun Bo Chinese Restaurant for sellin alcohol to undera a outh. RECOMMENDED ACTION: By motion: Conduct a disciplinary hearing for HKD Lo, Inc., d/b/a Jun Bo Chinese Restaurant, for the sale of alcohol to underage youth, and approve the attached resolution for the first time violating establishment: • Suspending the license to sell alcohol for''five (5) consecutive days; and • Levying a fine against the establishment in the amount of $1,000. II. BACKGROUND On July 27, 2010, the City Council held a disciplinary hearing for HKD Lo, Inc., d/b/a Jun Bo Chinese Restaurant, for alleged license violation arising out of incidents that occurred on April 5, 2010, May 9,'.2010 and May 24, 2010. All three incidents involved alleged service of alcohol to a minor. , HKD Lo, Inc. denied the allegations and requested a hearing before an administrative law judge. Subsequently, the City attorney and public safety director recommended that the disciplinary charge related to the'May 24, 2010 incident be dismissed. The City and Jun Bo proceeded to a disciplinary hearing before an administrative law judge on March 16, 2011. At that time, the City received additional evidence related to the April 5, 2010 incident. According to the initial 041211 Jun Bo Disciplinary Hearing CORRINE HEINE, CITY ATTORNEY police report, the officer stopped a vehicle driven by a minor who was under the influence of alcohol, and the minor admitted to the officer that he had been served at Jun Bo. At the July 27, 2010 Council meeting, Jun Bo provided an affidavit from the minor, in which the minor denied that he had been served at Jun Bo and instead attested that he had been drinking with friends before he went to Jun Bo. On March 16, 2011, the City attorney reviewed a transcript made of-the officer's conversation with the minor, taken from the squad car video at the time of the stop. The transcript and other evidence raised doubts about the City's ability to persuade the administrative law judge that Jun Bo had served the minor. Accordingly, the City attorney and public safety director and HKD Lo, Inc. and its attorney agreed to a proposed settlement, under which the City would dismiss the April 5, 2010 charge and HKD Lo, Inc. would admit that a violation occurred on May 9, 2011. More recently, the City has notified HKD Lo, Inc. of an additional disciplinary charge, stemming from a March 28, 2011 traffic stop. On that date, the officer was parked at the SuperAmerica at 77th and Nicollet. He saw a vehicle leaving the Jun Bo parking lot at a high rate of speed. The vehicle drove into the SuperAmerica lot, noticed the squad car, then drove through the gas station and proceeded to westbound 494 at a high rate of speed. In the subsequent traffic stop, the officer ultimately obtained a PBT test from the driver, who blew a .141. The driver identified himself and provided his date of birth, indicating that he was 17 years old, born in 1993. The driver indicated that he had a Minnesota driver's license but did not have it with him, both of which were later confirmed to be true as a result of a Minnesota driver's license check and a search subsequent to arrest. Although the driver had no identification with him, he was wearing a white wristband like those issued by Jun Bo to indicate the person may be served alcohol. The officer asked the driver how he had gotten into Jun Bo and received a wristband without identification, and the driver responded "They just let me in," and that Jun Bo had just given him the wristband. The minor driver was charged with 4th degree DWI. City staff notified HKD Lo, Inc. by letter on April 7, 2011 of the violation stemming from the March 28, 2011 incident. The licensee was requested to appear at the April 12, 201.1 Council meeting and either admit or deny the allegation. Resolution No. 9511 establishes a progressive discipline policy for liquor license violations. The May 9, 2010 violation would be considered a first offense under Resolution No. 9511, with a penalty of a five-day suspension of the license and a civil fine of $1,000. If Jun Bo admits that a violation occurred on March 28, 2011, that would be a second offense under the City policy, with a penalty of a seven-day suspension and a civil fine of $1,750. The City Attorney and staff recommend that the Council adopt the attached resolution imposing discipline for the May 9, 2010 violation and, if Jun Bo admits the March 28, 2010 violation, also adopt the resolution for that violation. III. BASIS OF RECOMMENDATION A. POLICY • Resolution No. 9511 specifies certain improper conduct of alcohol license holders and delineates the progressive discipline that can be expected when violations occur, such as the sale of alcohol to minors. B. CRITICAL ISSUES • It is a violation of Minnesota State Statute and City ordinance to sell alcohol to underage youth. • The well-being of youth is a high priority to the City. The City Council and the Richfield Advisory Board of Health support severe sanctions against liquor establishments that serve minors, and the City Council has consistently adhered to the disciplinary policy in Resolution No. 9511. C. FINANCIAL • N/A D. LEGAL • N/A E. ENVIRONMENTAL CONSIDERATIONS • N/A IV. ALTERNATNE RECOMMENDATION(S~ • The Council may consider taking more or less severe action against the establishment that sold alcohol to underage youth; however that would deviate from the guidelines set for progressive discipline in Resolution No. 9511. If the licensee denies the March 28, 2011 allegation, then the City Council should refer that charge for a contested hearing. V. ATTACHMENTS • Resolution related to May 9, 2011 violation • Resolution related to March 28, 2011 alleged violation • Copy of Resolution No. 9511 • Police report from March 28, 2011 incident VI. PRINCIPAL PARTIES EXPECTED AT MEETING • Representative of licensee and its attorney, Boris Parker ~s- RESOLUTION NO. A RESOLUTION SUSPENDING THE ON-SALE INTOXICATING AND SUNDAY LIQUOR LICENSES FOR HKD, INC., D/B/A JUN BO CHINESE RESTAURANT, 7717 NICOLLET AVENUE SOUTH, -AND IMPOSING A CIVIL PENALTY FOR FIRST TIME ALCOHOL COMPLIANCE FAILURE WHEREAS, HKD Lo, Inc., d/b/a Jun Bo Chinese Restaurant ("Licensee") holds an On-Sale Intoxicating Liquor License and a Sunday Liquor License from the City of Richfield; and, WHEREAS, on May 9, 2010, the Licensee sold alcohol to a minor; and, WHEREAS, this is the first violation of State law prohibiting sales to underage youth; and, WHEREAS, the Licensee appeared before the Richfield. City Council on April 12, 2011 and admitted the violations and stipulated to the penalty imposed by this resolution. NOW THEREFORE, BE IT RESOLVED by the Mayor arid Council, City of Richfield, Minnesota, as follows: 1. The Licensee's On-Sale Intoxicating and Sunday Liquor Licenses are hereby suspended for a period of five (5) consecutive days, commencing on a date to be determined by the Public Safety Director. 2. A civil penalty of $1,000 is hereby imposed. On or before April 30, 2011, the Licensee shall deliver a check or money order payable to the City of Richfield in the amount. of $1,000. Passed by the City Council of the City of Richfield, Minnesota this 12th day of April, 2011. Debbie Goettel; Mayor ATTEST: Nancy Gibbs, City Clerk ~~~a RESOLUTION NO. A RESOLUTION SUSPENDING THE ON-SALE INTOXICATING AND SUNDAY LIQUOR LICENSES FOR HKD, INC., D/B/A JUN BO CHINESE RESTAURANT, 7717 NICOLLET AVENUE SOUTH, AND IMPOSING A CIVIL PENALTY FOR SECOND TIME ALCOHOL COMPLIANCE FAILURE WHEREAS, HKD Lo, Inc., d/b/a Jun Bo Chinese Restaurant ("Licensee") holds an On-Sale Intoxicating Liquor license and a Sunday Liquor License from the City of Richfield; and, WHEREAS, on March 28, 2011, the Licensee sold alcohol to a minor; and, WHEREAS, this is the second violation of State law prohibiting sales to underage youth; and, WHEREAS, the Licensee appeared before the Richfield City Council on April 12, 2011 and admitted the violations and stipulated to the penalty imposed by this resolution. NOW THEREFORE, BE IT RESOLVED by the Mayor and Council, City of Richfield, Minnesota, as follows: 1. The Licensee's On-Sale Intoxicating and Sunday Liquor Licenses are hereby suspended for a period of seven (7) consecutive days, commencing on a date to be determined by the Public Safety Director. 2. A civil penalty of $1,750 is hereby imposed. On or before April 30, 2011, the Licensee shall deliver a check or money order payable to the City of Richfield in the amount of $1.,750. Passed by the City Council of the City of Richfield, Minnesota this 12th day of April, 2011. Debbie Goettel, Mayor ATTEST: Nancy Gibbs, City Clerk IS- 3 RESOLUTION N0.9511 RESOLUTION SPECIFYING CERTAIN IMPROPER CONDUCT OF ON-SALE INTOXICATING LIQUOR, WINE AND 3.2 MALT LIQUOR LICENSEES AND STATING RECOMMENDED DISCIPLINE AND RESCINDING RESOLUTION NO. 9204. WHEREAS, at their July 13, 2004 Council meeting, City Council directed staff to update the City's current alcohol discipline document. This, therefore, is a new Resolution that specifies the discipline an alcohol establishment can expect for the types of violations listed and rescinds Resolution No. 9204; and NOW, THE~2EFORE, 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 sale of on- sale intoxicating liquor, wine and 3.2 malt. 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 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 whom are either coming to or leaving the establishment. The City is unwilling to permit the continued operation of a licensed alcohol 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, wine and 3.2 malt 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): ~ 5~-~{ 1) 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. 2) 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. 3) 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 outlined 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 of 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 services 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, wine or 3.2 malt liquor license: 1) 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. 2) For the second such incident in any license year -suspension of license for up to 10 days and a civil fine of $2,000. 3) 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 Open Bottle Law.. The following discipline may be imposed upon on-sale intoxicating liquor, wine and 3.2 malt liquor licenses: 1) The first incident during the license year - up to a 10-day suspension and $2,000 civil fine. ~s-s 2) The second incident during the license year -- up to a 30-day suspension and $2,000 civil fine. 3) The third incident during the license year - up to a 60-day suspension and $2,000 civil fine. 4) 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 environment 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, wine or 3.2 malt liquor licenses for incidents of overcrowding verified by the City's Public Safety Director or their designee: 1) The first incident during the license year - up to a 10-day license suspension and $2,000 civil fine. 2) The second incident during the license year- up to a 30-day suspension and $2,000 civil fine. 3) The third incident during the license year - up to a 60-day suspension and $2,000 civil fine. 4) The fourth or subsequent incident during the license year -revocation of the license. D. Facilitating Gambling. 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, wine or 3.2 malt liquor license may be suspended for up to a period of days equal in number to the period of davs that such incident continued. E. Effect of Suspension or Revocation of Food License. On-sale intoxicating liquor, wine or 3.2 malt 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 61,5.05, subdivision 6 of the City Code. The on-sale sale of intoxicating liquor, wine or 3.2 malt liquor during such period shall constitute an unlicensed sale. ~~~~ F. The Sale, Consumption or Service to a Minor of Intoxicating Liquor, Wine or 3.2 Malt Liquor. Licensees must assure that the sale, consumption or service to a minor of any alcoholic beverage is prohibited under any condition. Failure to do so will result in swift and severe progressive civil penalties. The following discipline will be imposed upon on- sale intoxicating, wine or 3.2 malt liquor licenses for verified reports or compliance checks of misconduct occurring at the establishment: 1) For a first offense, the establishment's license will be suspended for (five) 5 days and a civil fine of $1000 will be due and payable to the City. 2) For a second offense, (if within one (1) year of the first offense), the establishment's license will be suspended for seven (7) days and a civil fine of $1750 will be due and payable to the City. If the offense occurs outside of one (1) year of a first offense, it will be considered a first offense. 3) For a third offense, (if within 2_years of the second offense), the establishment's license will be suspended for 12 days and a civil fine of $2000 will be due and payable to the City. If the offense occurs outside of two years of a second offense, it will be considered a second offense. 4) For a fourth offense, (if within 2 years of the third offense), the establishment's license will be brought before the City Council fora *revocation hearing and a civil fine of $2000 will be due and payable to the City. If the offense occurs outside of two years of a third offense, it will be considered a third offense. 5) For a fifth offense, (if within 2 years of the fourth offense, the establishment's license will be revoked for the remainder of the license year and a civil fine of $2,000 will be due and payable to the City. An establishment whose license is revoked is ineligible for a license for a period of five (5) years from the date of revocation. • A revocation hearing at the fourth offense level would result in a hearing before the City Council to discuss whether there are alternatives available that can be agreed upon by Council and the owner of the establishment to prevent the need to revoke the establishment's license. Alternatives will be determined on a case-by-case basis. If no alternatives exist, the license would be revoked. If feasible alternatives exist, conditions will be placed on the licensee by the City Council. A fine will be assessed in either instance. An establishment whose license is revoked is ineligible for a license for a period of five (5) years from the date of revocation. Step Back Option - It is possible to "step back" a failure level if an establishment has successfully passed a minimum of two consecutive compliance checks. For example, if an establishment is at the third offense level but has successfully passed two consecutive compliance checks since the last failure, they are eligible to "step back" to a second offense level. This provides a serious incentive to establishments to work on keeping their record clean so that they can "step back" in the discipline grid. If an establishment passes two consecutive compliance checks, they step back one offense level. It is, however, possible that if an establishment has several failures but continues to pass compliance checks time after time for several years, they may eventually "step back" to the step one starting point. Each step back requires two new consecutive passes. Previous passes to "step back" can not be used toward future passes. i~-~ G. General Provisions Regarding Sanctions. In addition to the sanctions listed for specific offenses listed in paragraphs A through F above, the City Council may impose other mandatory requirements upon the establishment such as: meetings with the Public Safety Director to present a plan of action to assure that the problem will not continue; mandatory educational sessions with Crime Prevention staff; or other actions that the City Council deems appropriate. The City Council retains the right to modify the provisions of this resolution from time to time and to impose penalties greater than or less than those contained herein when in the judgment of the Council it is appropriate to do so. The City Council may suspend all or a portion of any penalty or license suspension upon compliance with such conditions as the Council deems appropriate. Prior to imposing any monetary penalty or license suspension or revocation, the City Council will set an initial appearance at which the licensed establishment must appear before the City Council to admit or deny the violation. If the violation is admitted, the licensed establishment will be allowed to explain any mitigating circumstances at the time of the initial appearance. If the violation is denied, the licensed establishment may request a hearing at or prior to the initial appearance. Licensed establishments may explain mitigating circumstances or request a hearing in writing prior to the initial appearance or may do so orally by appearing at the. initial appearance. The City Council strongly encourages licensed establishments to make a personal appearance at the initial appearance. A licensed establishment that does not request a hearing at or prior to the initial appearance will be deemed to have waived its right to a hearing, and the City Council may deem the violation admitted and impose sanctions as provided in this resolution.. Where a hearing is requested, the City Council may conduct the hearing or refer the hearing to an independent hearing examiner. All hearings involving possible suspension or revocation of a license will be conducted in accordance with Minnesota Statutes, Chapter 14. Passed by the City Council of the City of Richfield this 16th day of September 2004. Martin J. Kirsch, Mayor ATTEST: Nancy Gibbs, City Clerk ~~~~;~ g Public Safety Department Barry Fritz, Public Safety Director MAYOR DEBBIE GOETTEL clnr couNCll. PAT ELLIOTT TOM FITZHENRY SUZANNE M.SANDAHL FRED L. WROGE, JR. CITY MANAGER STEVEN L. DEVICH April 7, 2011 Dear Mr. and Mrs. Lo Yik, Yau, Kee, and Danny I am writing to advise you that the City Council will be cohductirig a hearing at which a representative of your business is required to appear on l"uesday; April 12, 2011. The meeting will begin at 7:00 p.m. at Richfield City Hall, 6700 Portland Avenue in the Council Chambers. This is to be an appearance in tl~e proposecl•~disciplinary proceedings against the business' liquor license. Failure to appear is deemed to be an admission of the violation. ~. ,, At the Council meeting, your representative will be given `an opportunity to either admit that your business made unlawful sales to a minor and to stipulate to the penalties imposed by the City Council or deny the allegations and request a contested case hearing. If you admit to the violation, the Council will adopt a resolution on April 12, 2011 imposing a penalty in accordance with Resolution 9511, a copy of which is attached. If you deny the allegation and request a contested case hearing, the City Council will refer the matter to an independent hearing examiner for a hearing. I trust that you will have a representative present at the April 12, 2011 City Council Meeting. You may contact me at (612) 861-9811 or Betsy Osborn at (612) 861-9881 if you have any questions. Sincerely, _ ~ .,.. Barry Fritz Public Safety pirector BF:sjm The Urban .Hometown 6700 PORTLAND AVENUE, RICHFIELD, MINNESOTA 55423-2599 NON-EMERGENCY 612.861.9800 EMERGENCY 911 www.cityoficMeld.org AN EQUAL OPPORTUNITY EMPLOYER IS-q .. . - RICHFIELD DEPARTMENT OF PUBLIC SAFETY INCIDENT REPORT CASE NAME REPORT DATE CASE NUMBER 3/28/2011 11000797 MINCIS Reporting Officer & Badge # Page Entered Canceled GALLATIN #171 (03/28/11 AC) 1 Narrative: On 03-28-11,, I stopped a Chevrolet Monte Carlo, MN Reg~at northbound 35W north of 76t" Street for no brake lights. The•drive~ was identified as ~. After field sobriety,~was arrested for DWI. His breath test reported value was .13. ~was•later released with a citation. PC for Ston/Driver Contact I was backed into a parking spot in my squad at SuperAinerica at 77t"'and Nicollet watching traffic as it was leaving Jun Bo at approximately 0200 hours when I noted a Monte Carlo bearing leave the Jun Bo lot.at a high.rate of speed. The vehicle drove into SuperAmerica and I believed the driver saw my sq.~ad, drove through the gas station.,-.and then drove southbound on Nicollet at a high rate of speed. I pulled onto Nicollet and~begah to follow the vehicle, as I suspected the driver may have been attempting to elude tee. The vehi~.le went westbound on 494 and then proceeded northbound onto 35W. While on 494, I witnessed the vehicle cross over the fog line on the right side of the road two times. As the vehicle braked to exit for 35W, I noticed neither of the brake lights were working. The third brake light in the back window was working. As the vehicle got onto 35W northbound, I activated my emergency lights and pulled the• vehicle over. I approached and asked the driver for his driver's •license and advised him of the reason for the stop. While talking. with the driver, I could smell the odor of alcoholic beverage coming from inside the vehicle. The driver stated that he did not have his license with him. He told me that he did have a Minnesota license and that his name was He told me that he had nothing with his name on it and no picture identification. I asked~if he had been drinking tonight and he stated, "Not really." I asked him what he meant by not really, and he stated, "No." I returned to my vehicle and attempted to locate via DVS. The DVS website was, not working. I was able to locate a ~~ in IIQ with the same date of birth and address the driver had given me. I returned to the vehicle and asked the driver to exit and had him stand between my squad and his vehicle to conduct field sobriety. Horizontal Gaze Nystagmus The first test I conducted was the horizontal gaze nystagmus. I explained the test tom and asked him if he wore contacts. He stated he did and that he had them in at this time. ~~ eyes were bloodshot and watery,. lacked smooth. pursuit, and had distinct jerkiness at maximum'deviation and nystagmus prior to the onset of 45 degrees. Printed: 3/28/2011, 8:18:23 AM 1 ~ r f~ V RICHFIELD DEPARTMENT OF PUBLIC SAFETY, INCIDENT REPORT 11000797 Reporling Officer - Batlge 7F - Keport uate 1 .~ GALLATIN #171 (03/28/.11 AC), 3/28/2011 ~I G PBT No. 0557$9 I explained the PBT to~~and he stated he understood the,test., provided a breath sample and the PBT displayed a reading of .141.. ,.. From -~-y. observations, the c~tlor of alcoholic beverage, and field sobriety performance, I-~elieyed he was under the influence of alcohol. I told him he was being arrested, and he was handcuffed, double-locked, checked for circulation, searched, and placed in my squad. The vehicle was not impounded; there were two passengers in, the vehicle who were able to call for two other parties who lived close by to come and. pick them up. The, front seat passenger was the registered owner. 2rd PBT Because ~is 17 years old, he is subject to the "not a drop" law. I gave him a second PBT approximately 15 minutes after the first and~the second PBT reading resulted in ~~138. . I issued~a citation for DWI for under 21 drinking and driving; however, because I was unable to.get good identification from I transported him to the Richfield Police Department where lie was booked, fingerprinted, and photographed. When the booking process was complete, I drove him to where he was released to sober adult friends. While speaking wither regarding his identification, I asked h'im how he had gotten into Jun Bo without identification. He told me, "They just let me in." I asked him if they carded him and he told me they had not. I also noticed that he had a white wristband on his right. wrist and~l asked him now he had gotten the wristband without any type~of identification and he told me tftat they just gave it to him. I told him, "So they just took your money without ID'ing`you?" and he shrugged ~iisshdtllders. I asked him how much it cost to get into Jun Bo tonight and he told me it was ten dollars. I asked him if there was a band playing and he said no, that they had a DJ `and sorrie other entertainment. was charged with 4t" Degree DWI. He does not have any prior arrests. He was not issued a temporary driver's license. He was issued Citation No. Printed: 3/28/2011, 8:18;23 AM RICHFIELD DEPARTMENT OF PUBLIC SAFETY INCIDENT REPORT CASE NAME 3~2$~2011 11000797 Reporting Officer&Badge# Page MINCIS 1 Entered Canceled GALLATII~I #171 (03/28/11 AC) Narrative: , Later in the morning on 03-28-11 when the DVS website came back on line, I was able to locate His Minnesota driver's license number ism He is showing as having ~a valid instructional permit. It should also be noted that the passenger in the flllonte Carlo was driving was the registered owner, who has a valid . Minnesota driver's license. . .. ; COPY /5-11 Printed: 3/2(312011, 7:16:20 AM 15-1~ RESOLUTION NO. 9511 RESOLUTION SPECIFYING CERTAIN IMPROPER CONDUCT OF ON-SALE INTOXICATING LIQUOR, WINE AND 3.2 MALT LIQUOR LICENSEES AND STATING RECOMMENDED DISCIPLINE AND RESCINDING RESOLUTION NO. 9204. WHEREAS, at their July 13, 2004 Council meeting, City Council directed staff to update the City's current alcohol discipline document. This, therefore, is a new Resolution that specifies the discipline an alcohol establishment can expect for the types of violations listed and rescinds Resolution No. 9204; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Richfield as follows: t. BACKGROUND STATEMENT The City of Richfield annually issues a number of licenses permitting the sale of on- sale intoxicating liquor, wine and 3.2, malt 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 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. Il. 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 whom are either coming to or leaving the establishment. The City is unwilling to permit the continued operation'of a licensed alcohol 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-safe intoxicating liquor, wine and 3.2 malt 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): nova ce,..,.,,~ o...,a:.... ~ :,...,.. n..~:...,.,..., r-c...„,.,... /S- 13 1) 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. 2) 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. 3) 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 outlined 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 inappropriate 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 of 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 services 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, wine or 3.2 malt liquor license: 1) 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. 2) For the second such incident in any license year -suspension of license for up to 10 days and a civil .fine of $2,000. 3) For the third such incident in any license year -suspension of (icense 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 Open Bottle Law. The following discipline may be imposed upon on-sale intoxicating Liquor, wine and 3.2 malt liquor licenses: 1) The first incident during the (icense year - up to a 10-day suspension and $2,000 civil fine. /S-I~{ 2) The second incident during the license year -- up to a 30-day suspension and $2,000 civil fine. 3) The third incident during the license year- up to a 60-day suspension and $2,000 civil fine. 4) 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 environment 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, wine or 3.2 malt liquor licenses for incidents of overcrowding verified by the City's Public Safety Director or their designee: 1) The first incident during the license year - up to a 10-day license suspension: and $2,000 civil fine. 2) The second incident during the license year - up to a 30-day suspension and $2,000 civil fine. 3) The third incident during the license year - up to a 60-day suspension and $2,000 civil fine. 4) The fourth or subsequent incident during the license year -revocation of the license. D. Facilitating Gambling. 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, wine or 3.2 malt liquor license 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, wine or 3.2 malt liquor licenses vvhich 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. The on-sale sale of intoxicating liquor, wine or 3.2 malt liquor during such period shall constitute an unlicensed safe. lS-IS F. The Sale, Consumption or Service to a Minor of Intoxicating Liquor, Wine or 3.2 Malt Liquor. Licensees must assure that the sale, consumption or service to a minor of any alcoholic beverage is prohibited under any condition. Failure to do so will result in swift and severe progressive civil penalties. The following discipline will be imposed upon on- sale intoxicating, wine or 3.2 malt liquor licenses for verified reports or compliance checks of misconduct occurring at the establishment: 1 } For a first offense, the establishment's license will be suspended for (five) 5 days and a civil fine of $1000 will be due and payable to the City. 2) For a second offense, (if within one (1 }year of the first offense), the establishment's license will be suspended for seven (7) days and a civil fine of $1750 will be due and payable to the City. If the offense occurs outside of one (1) year of a first offense, it will be considered a first offense. 3) For a third offense, (if within 2_years of the second offense), the estab[ishment's license will be suspended for 12 days and a civil fine of $2000 will be due and payable to the City. If the offense occurs outside of two years of a second offense, it wilt be considered a second offense. , 4) For a fourth offense, (if within 2 years of the third offense), the establishment's license will be brought before the City Council fora *revocation hearing and a civil fine of $2000 will be due and payable to the City. If the offense occurs outside of two years of a third offense, it will be considered a third offense. 5~ For a fifth offense, (if within 2 years of the fourth offense, the establishment's license will be revoked for the remainder of the license year and a civil fine of $2,000 will be due and payable to the City. An establishment whose license is revoked is ineligible for a license for a period of five (5) years from the date of revocation. • A revocation hearing at the fourth offense level would result in a hearing before the City Council to discuss whether there are alternatives available that can be agreed upon by Council and the owner of the establishment to prevent the need to revoke the establishment's license. Alternatives will be determined on a case-by-case basis. If no alternatives exist, the license would be revoked. If feasible alternatives exist, conditions will be placed on the licensee by the City Council. A fine will be assessed in either. instance. An establishment whose license is revoked. is ineligible for a license for a period of five (5) years from the date of revocation. Step Back Option - It is possible to "step back" a failure level if'an establishment has successfully passed a minimum of two consecutive compliance', checks. For example, if an establishment is at the third offense level but has successfully passed two consecutive compliance checks since the last failure, they are eligible to "step back" to a second offense level. This provides a serious incentive to establishments to work on keeping their record clean so that they can "step back" in the discipline grid. If an establishment passes two consecutive compliance checks, they step back one offense level. It is, however, possible that if an establishment has several failures but continues to pass compliance checks time after time for several years, they may eventually "step back" to the step one starting point. Each step back requires two new consecutive passes. Previous passes to "step back" can not be used toward future passes. l S- Jlp G. General Provisions Regarding Sanctions. In addition to the sanctions listed for specific offenses listed in paragraphs A through F above, the City Council may impose other mandatory requirements upon the establishment such as: meetings with the Public Safety Director to present a plan of action to assure that the problem will not continue; mandatory educational sessions with Crime Prevention staff; or other actions that the City Counci! deems appropriate. The City Council retains the right to modify the provisions of this resolution from time to time and to impose penalties greater than or less than those contained herein when in the judgment of the Council it is appropriate to do so. The City Council may suspend all or a portion of any penalty or license suspension upon compliance with such conditions as the Council deems appropriate. Prior to imposing any monetary penalty or license suspension or revocation, the City Council will set an initial appearance at which the licensed establishment must appear before the City Council to admit or deny the violation. If the violation is admitted, the licensed establishment will be allowed to explain any mitigating circumstances at the time of the initial appearance. If the violation is denied, the licensed establishment may request a hearing at or prior to the initial appearance. Licensed establishments may explain mitigating circumstances or request a hearing in writing prior to the initial appearance or may do so orally by appearing at the initial appearance. The City Council strongly encourages licensed establishments to make a personal appearance at the initial appearance. A licensed establishment that does not request a hearing at or prior to the initial appearance will be deemed to have waived its right to a hearing, and the City Council may deem the violation admitted and impose sanctions as provided in this resolution. Where a hearing is requested, the City Council may conduct the hearing or refer the hearing to an independent hearing examiner. All hearings involving possible suspension or revocation of a license will be conducted in accordance with Minnesota Statutes, Chapter 14. Passed by the City Council of the City of Richfield this 16th day of September 2004. ATTEST: Martin J. Kirsch, Mayor Nancy Gibbs, City Clerk AGENDA SECTION: RESOLUTIONS AGENDA ITEM # 16 REPORT # 87 ~~' STAFF REPORT CITY COUNCIL MEETING APRIL 12, 2011 REPORT PREPARED BY: CORRINE HEINE CITY ATTORNEY DEPARTMENT DIRECTOR REVIEW: ~ ~.,~I~ REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDERATION: Public hearing for consideration of the renewal of 2011 On-Sale Intoxicating and Sunday liquor licenses for HKD Lo, Inc. d/b/a Jun Bo Chinese Restaurant, 7717 Nicollet Avenue South. I. RECOMMENDED ACTION: By motion, adopt a resolution denying the renewal of 2011 On-Sale Intoxicating and Sunday Liquor Licenses for!. HKD Lo, Inc., d/b/a Jun Bo Chinese Restaurant, 7717 Nicollet Avenue South. II. BACKGROUND ~ On October 5, 2010, the City received the renewal application and other required documents for On-Sale Intoxicating and Sunday liquor licenses for HKD Lo, Inc. d/b/a Jun Bo Chinese Restaurant, 7717 Nicollet Avenue South. The City Council heard the application for renewal on December 14, 2010. At that time: • The licensee had paid the required license fees. ~i • The licensee had provided the required proof of li ~ uor liability and workers compensation insurance. • The licensee had provided an accountant's statement showing that for the period August 2009 through September 2010, food sales accounted for 69.2% of the total sales, while liquor sales accounted for 30.8% of the total 041211 PH Jun Bo On-Sale Intoxicating & Sunday Liquor Licenses for 2011 sales, which satisfies the City ordinance requirement regarding percentage of food sales. At the hearing, the Council expressed concern regarding the number of Public Safety contacts with Jun Bo from October 2009 through September 2010. The Public Safety Department reported that there were a total of 164 contacts in that period, compared to 81 calls in the previous year. Approximately half of the calls were for extra patrol -instances where a squad car merely reported that it was in the Jun Bo parking lot to observe activities -but where no problem or criminal conduct was involved. At the time of the December 14, 2010 hearing, there were also two pending matters: • Administrative hearings on alleged violations by the licensee relating to the prohibition on serving liquor to minors. • An appeal before the Minnesota Tax Court related to the State's determination that the licensee had failed to pay sales taxes due the State. The Council extended the Licensee's licenses pending resolution of the pending legal matters and continued consideration of the license renewal application until such time as the legal matters were finally. resolved. Since that time, the following events have transpired: • The disciplinary matters were .heard on March 16, 2011, and at the hearing, the City staff and the licensee reached a proposed settlement agreement regarding those disciplinary matters. • The Public Safety Department has notified the licensee of an additional alleged unlawful sale to a minor, which occurred on March 28, 2011, and that matter has been separately brought to the Council for action. • The City Attorney has performed a more detailed analysis of the police calls in 2009-2010, looking only at the 37 calls that resulted in a response or incident report. Based on that review, the City Attorney determined that in 20 of the 37 incidents, the reports disclosed problems related to the Licensee's responsibility to responsibly manage and oversee the service of alcohol and the conduct of its patrons on the licensed premises. Specifically, the reports revealed evidence of inadequately trained security personnel, extreme intoxication of patrons, service of alcohol to minors, and a general lack of adequate oversight. • The Minnesota Tax Court has issued its decision regarding the sales tax case, which is further discussed below. • The Public Safety Department has not seen any significant improvement in the licensee's handling of its establishment, especially with regard to dance events, as evidenced by an incident on March 5, 2011, at which the Public Safety Department was forced to shut down the establishment and obtain assistance from the Edina, Bloomington and Airport Police Departments. The Minnesota Tax Court decision disclosed several problems in the Licensee's business operation that are of particular concern. The court determined that the licensee had "consistently and substantially underreported taxes owed" for the time period in question, which was December 1, 2004 through November 30, 2007.. The court found the commissioner had miscounted the alcohol inventory and, therefore, ordered the taxes to be recalculated to correct that error. For that reason, the precise amount of taxes that are unpaid is not known at this time. However, the court's opinion indicates that the Licensee did not dispute that it owed significant amounts of taxes, including $72,660.29 in State and County sales taxes on alcohol sales, sales taxes of $2,259.41 on party and banquet revenues, Hennepin County food sales tax, South China Island sales tax, and use taxes on fixed asset purchases. (Opinion, pages 8-9). Although undisputed, those taxes have not been paid, and they are more than three years delinquent. The court noted extreme recordkeeping deficiencies that raise serious questions about the accuracy of the Licensee's records of food and liquor sales and the reliability of the accountant's statement concerning compliance with the City's ordinance on percentage of liquor sales. Perhaps the greatest concern is the Tax Court's decision to affirm the State's imposition of a penalty for fraudulent underreporting of taxes owed. In that regard, the court held that the Licensee "consistently and substantially underreported its sales tax burden to such an extent that the underreporting could not be attributed to mere negligence." (Opinion, p. 22) The court found that "much of the testimony" of the Licensee's manager, Kee Lo, and his brother, Dan Lo (who has been the primary representative to appear before the City Council on behalf of the Licensee) was "not credible" and that their "story" about certain events was "not believable" and "dubious." (Opinion, p. 23) The court's findings in these matters evidence a seriously flawed business operation that is inconsistent with responsible management of a liquor establishment. The Licensee has also confirmed news reports that the Licensee no longer owns the licensed premises and that it will discontinue business operations by sometime this fall, as the result of that sale. The Licensee's lack of any significant long-term investment in its operation at this location only heightens the Public Safety Department's concern about the license renewal. The business has even less economic incentive than before to adhere to the City's liquor license regulations. III. BASIS OF RECOMMENDATION A. POLICY • The sale of intoxicating liquor is closely regulated by the State and by the City because alcohol is a dangerous substance that, when misused or abused, poses serious threats to the public health, safety and welfare. • The sale of intoxicating liquor should be conducted only by responsible businesses that demonstrate respect for the laws of the State and ordinances of the City, due concern and regard for the safety of its patrons, and sound business management to ensure compliance with all applicable laws and ordinances. B. CRITICAL ISSUES • HKD Lo, Inc. failed to demonstrate that it is either willing or capable of exercising the diligence and control over liquor sales at its establishment that the City Council demands of its liquor licensees. C. FINANCIAL • N/A D. LEGAL • The Council may renew the license without conditions, renew the license with conditions (provided the conditions remedy deficiencies that would otherwise result in denial of the license), or deny the license renewal • The City Attorney is of the opinion that the denial of the license application is legally supportable and has joined in the Public Safety Director's recommendation to deny renewal. • The City Attorney has not completed drafting the resolution to deny the license; however the resolution will be presented to the Council at the meeting on April 12, 2011. E. ENVIRONMENTAL CONSIDERATIONS • N/A IV. ALTERNATIVE RECOMMENDATION(S~ • None. V. ATTACHMENTS • Resolution denying renewal will be provided on April 12, 2011. • City Attorney review of Public Safety contacts • Minnesota Tax Court Opinion • Police report VI. PRINCIPAL PARTIES EXPECTED AT MEETING • Representative(s) of HKD Lo, Inc., d/b/a Jun Bo Chinese Restaurant. STATE OF MINNESOTA COUNTY OF HENNEPIN TAX COURT REGULAR DIVISION HKD Lo, Inc., dba Jun Bo Chinese Restaurant, ~ FINDINGS OF FACT ' CONCLUSIONS OF LAW Appellant, ORDER FOR JUDGMENT vs. Docket 8028 R No. Commissioner of Revenue, Dated: March 21, 2011 Appellee. The Honorable Ka#hleen H. Sanberg, Judge of the Minnesota Tax Court, heard this matter, on August 5 and 6, 2410, at the Minnesota Tax Court courtroom 210, Minnesota Judicial Center, St. Paul, Minnesata. Thomas E. Brever, Attorney at Law, represented the Appellant. Mark Levinger, Assistant Attorney General, represented the Commissioner. . Both parties submitted past trial briefs. The matter was submitted to the. court for decision on December 21, 2014. The Court, having heard and considered the evidence adduced at the hearing, and upon all of the files,. records and proceedings herein, now makes the following: 1 FINDINGS OF FACT 1. HKD Lo, Inc. dba Jun Bo Chinese Restaurant ("Appellant"} operates Jun Bo, a Chinese restaurant located in Richfield, Minnesota. The premises include a restaurant area, a bar area, and a reception center. Jun Bo is owned by Appellant and Appellant is owned by Kee Lo, Dan Lo, and parents, Yik Lo and Yak Lo. 2. The Minnesota Department of Revenue conducted an Audit of the Jun Bo restaurant for the period December 1, 2004, through November 30, 2007. (Ex. 101). The Revenue Specialists performed an indirect audit of Appellant's liquor sales and use tax at Jun Bo. 3. On June 25, 2008, the Minnesota Department of Revenue issued a Notice of Change in Sales and Use Tax {Ex. 101} that assessed an additional tax of $156,458.39, a fraud penalty of $78,229.32 and interest of $25,944.26, far a total amount due of $260,631.97. 4. The major components of the assessment include: 1) Sales tax on alcohol sales; 2) Sales tax on cover charge revenues from attendance at concert/dance events; 5 3} Use tax on fixed asset purchases; and 4} sales tax on revenues from parties/banque#s. The period of time at issue is December 1, 2004 through N~,.~pmhPr 30, 2007. 6. Certain portions of the assessment are not contested: 2 1) State and Hennepin County Sales Tax on alcohol saies~ (Ex. 11 of Ex. 101, schedules A-D), which total tax is $72,660.29; 2} State and Hennepin County Sales Tax on party/banquet revenues (Ex. 101, schedules E-F), which to#al tax is $2,259.4; 3) Jun Bo Food Tax difference (schedule G}-this is a credit to Appellant; 4) Hennepin. County food sales tax (schedule H); 5} South China Is{and safes tax (schedules L-M); and 6) Use tax imposed on fixed asset purchases (schedules N-O), for at least one-third of the amount listed. 7. !n 2005, Appellant purchased the. building for Jun Bo. Kee Lo acted as general contractor and coordinated remodeling and refurbishment of the building. Kee Lo purchased all of the material for the remodeling and hired al! the contractors. All receipts were held by him at the premises and were paid by hirn. 8. In May 2006, Jun Bo opened. (Tr. at 7.) Since the opening, bro#hers Dan and Kee Lo have been managers of the restaurant and have handled all day to day business. Parents Yik and Yak Lo have never been actively involved in managing the restauran#. 9. Included in the premises are a dining area and an event hall. The capacity of the dining area is 500 persons with about 7,000 square feet and in the event hall, 300 persons, with about 6,000 square feet. The entire building is about 20,000 square feet. The even# half hosts . 3 banquets, weddings and o#her events. Appellant does not charge for the renting of the event hall. Appellant treats .the event hail as a restaurant and requires those that reserve the hall to purchase their food and alcohol from Appellant. 10. Deposits are only charged for big parties and reservations. When deposits are taken for large reservations, the security deposit is taken by Kee Lo and deposited into the bank. Deposit slips from the bank are then given to the company's accountant. At no time are records of the' deposits entered into the computer system. 11. Jun Bo operated a bar on the premises. Beer is served, along with various liquors, wines and spirits. Alcohol is delivered to Jun Bo by several distributors. Appellant requested that all alcohol deliveries take place on Fridays. Appellant preferred to pay the distribu#ors Monday, for the deliveries. 12. Four persons were able to pay the alcohol suppliers. Dan Lo and Kee Lo, with authority to do so, made most of the payments to the distributors. Yik Lo and Kee Lo's wife were the other two persons. 13. Dances or concerts were held at Jun Bo beginning in November 2006. Appellant contracted with a promoter, Producciones Montoya, holding himself out as "Mingo," who ran the dance/concert events. The promoter was in charge of scheduling the band, hiring security, and securing music system. _ The promoter controlled the gate and collected the cover charges. 4 14.Appellant treated the promater's events (lice they would any other even#~ booked by an outside person. 15. According to newspaper ads, the promoter charged a $10 cover charge for women and a $15 cover charge for men. The cover charge for women was waived at certain times. After May 2007, attendance was between 50 and 130 for disc jockeys and between 200 and 300 for live music. The capacity far the event center is 350. 16.Appellant received al! profits from sales at the bar but received no cover charges for the dance events prior to August 2007. At no time during any of the promoter's even#s, did any employee of Appellant receive a cover charge. After August 2007, Appellant received all cover charges, but did not report the revenue or keep records regarding the numbers of persons attending or cover charges 17.A computer system has been used at Jun Bo to record sales. This computer system and the books and records comprise the books and records of the restaurant. The computer system is a point of sale system, in which employees of Jun Bo enter several keys to record what was ordered by the customer. All employees use this system to enter drink and food orders. 18.The order entered by employees includes the item requested, the table number, the server, the time and the cost of the item. Different categories exist far entering alcohol orders including individual brands of beer, red wine, white wine, liquor, and a category for!miscellaneous 5 liquor. Should an order be cancelled, the system holds no record of that transaction. At the end of the each business day, a copy of the day's sales is printed. 19. In October 2006, the database crashed due to the installation of a Chinese language program into thercomputer system. As a result of the database crash, there is no background sheet for the October 2006 sales records. 20.Appellant hired Curt Swansan and Genesis Accounting Firm as its accountants. Mr. Swanson was responsible for preparing sales and use tax returns, payroll and all other taxes. (Tr. at 26; Swanson Affidavit-submitted to the Court subsequent to trial.) 21.A11 books and records of Appellant including deposi# slips, check stubs, sales records, and~other documents were given to Mr. Swanson. Appellant withheld na documents from Mr. Swanson. 22. Mr. Swanson prepared Appellant's income and sales tax retums for all tax years at issue-December '1, 2004, through November 30, 2007. When the audit took place, records were reviewed at Mr. Swanson's office. 23.The audi#ors, Mr. Miller and Ms. Shenouda, saw invoices far the ~~ purchase of alcohol that showed they had been paid in cash at Mr. Swanson's office. The documents were returned to Appellant, who now claims they were lost, destroyed or stolen. 24.Appellant consistently and substan#iaily underreported taxes owed. 6 25.Appellant lacks adequate records to permit a full and complete audit. 26.On June 30, 2008, Appellant fried the Appeal of the June 25, 2008, Order with the Minnesota~Tax Court. CONCLUSIONS OF LAW The June 25, 2008, Order of the Commissioner of Revenue imposing additional tax, penalties and interest is hereby modified as follows: The Commissioner of Revenue shall recompute Appellant's fax liability, consistent with our findings below. In addition, we af~m~ the fraud penalty. IT IS SO ORDERED. LET JUDGMENT BE ENTERED ACCORDINGLY. A STAY OF FIFTEEN DAYS IS HEREBY ORDERED. THIS IS A FINAL ORDER. /~S~r ,tiy!~c1. BY THEC OU~in~I ~~'~arya~~~` 4 Mo of,. ~:.,ti . -~ e~ `""- ,%, r ~d f7: ~ ,_ ~ .. Kathleen H. Sanberg, Juc~g 'MINNESOTA TAX COURT DATED: March 21, 2011 __ 7 Memorandum Background and Facts The issues in this sales and use tax case concern the sale of alcohol and the revenue for cover charges, fixed assets, and parties or banquets. HKD Lo, lnc. ("Appellant"} operates Jun Bo, a Chinese restaurant located in Richfield, Minnesota. The premises include a restaurant area, a bar area, and a reception center. Jun Bo is owned by Appellant, and Appellant is owned by Kee Lo, Dan Lo, and their parents, Yik Lo and Yak Lo. The Minnesota Department of Revenue conducted an audit of the Jun 130 restaurant for the period December 1, 2004, through November 30, 2007. (Ex. 101). On June 25, 2008, the Minnesota Department of Revenue issued a Notice of Change in Sales and Use Tax (Ex. 101) that assessed an additional tax of $156,458.39, a fraud penalty ofi $78,229.32 and interest of $25,944.26, for a total amount due of $250,631.97 ("Order"). The major components of the assessment include sales tax on alcoho! sales, sales tax on cover charge revenues from attendance at concert/dance events, use tax on fried asset purchases, and sales tax on revenues from parties/banquets. The Commissioner of Revenue ("Commissioner") argues that certain portions of the Order are not contested: 1) State of Minnesota and Hennepin County sales tax on alcohol sales, Schedules A-D, Ex. 101, in the to#al taxable amount of $72,660.29 8 2) State of Minnesota and Hennepin County sales tax on party and .banquet revenues, Schedules E-F of Ex. 101, totaling $2,259.41. A spreadsheet created by Dan Lo represents his calculations for the amount of tax owed by Appellant; it includes a column entitled 'Tax Paid from banquets." 3} Jun Bo food tax difference, Schedule G; this is a credit to.Appellant which is not at issue in this case. 4) Hennepin County food sales tax, Schedule H; Appellant admitted that it was not aware of this tax, so it was not paid. 5} South China Island safes tax, Schedules L-M. Appellant agreed that these amounts are uncontested. 6) Use tax imposed on fixed asse# purchases, Schedules N-O. Appellant contests some of the use tax assessed, but admits that it owes mare than one- third of the use tax assessed. Appellant disputes most of the taxes for items on Schedules I-J, alleging that the cover charges were collected and retained by a promoter; Appellant says that the promoter owes the tax. Far the period August through November 2007, Appellant collected cover charges and was fully responsible for events. Taxes an these amounts are not contested. The Jun Bo building was purchased in 2005. Appellant renovated and refurbished the Jun Bo building in'2006. Mr. Kee Lo paid for all costs associated with the work. Appellant says that it paid applicable taxes on supplies and labor in the remodeling of the Jun Bo building in 2006. Mr. Kee Lo purchased all the material for Appellant's labor contractors, but had na documentation for the 9 purchases, He kept Appellant's remodeling and refurbishing invoices in a black briefcase that was in his office at Jun Bo. According to Mr. Lo a theft occurred at the premises and he surmises that the briefcase was stolen along with power foals, a plasma television and o#her equipment were stolen. Appellant produced no police report or insurance claim regarding the theft. The audit found that there was consistent and substantial underreporting of tax owed. Appellant lacks,adequate records to permit a full and complete audit. According to the Commissioner, up to 62% of the daily sales #ransaction records are missing. Revenues from the parties and other events did not go #hrough the computer system. Appellant produced no documenta#ion from which revenue and taxes awing could. be determined. Appellant filed this Appeal of the Order wi#h the Minnesota Tax Court on June 30, 2008. Discussion Burden of Provf Here we must determine whether Appellant paid the proper amounts of sales and use tax due on sales of alcohol, cover charges, and fixed assets. We must also determine whether the fraud penalty imposed by the Commissioner was justified. Under the Minnesota Sales and Use Tax Act, all gross receipts are presumed subject to tax until the contrary is established. Minn. Stat. § 297A.09. In addition, orders of the Commissioner are presumed valid and correct.' The 1 See Minn. Stat. § 271 C.61, subd. 5 (2008); Dreyling v. Commissioner o€ Revenue, 753 N.W.2d 698, 701 (Minn. 2008). 10 taxpayer has the burden of proving that a challenged order is incorrect or invalid.z The standard of proof required to overturn an order of the Commissioner is a preponderance of the evidence.3 The preponderance of the evidence standard and burden also apply to the challenge ofi a fraud determination and imposition of penalties, including the civil fraud penalty.4 .. The major components of the assessment at issue, here are: 1 }. Use tax on fixed asset purchases; 2) Sales tax on cover charge revenues from attendance at concerts and dances; 3} Sales tax on alcohol sales; and 4} Sales #ax on revenues from parties and banquets. We shall consider each issue in turn. Use Tax on Fixed Assets The Commissioner asserts that Appellant made substantial fixed asset purchases and assessed' a use tax on those purchases. Most of the purchases occurred when the restaurant was being remodeled prior to its opening. The Commissioner alleges that Appellant made taxable purchases but avoided paying tax by wrongly using an exemption certificate. 1f a purchaser who gives an exemption certificate makes any use of the item that is not for a purpose z Minn. Stat. § 271.06, subd. 6; Minn'Stat § 289A.37, subd. 3; See New Comer Bar inc. v. Commissioner of Revenue, Docket No. 7221 R (Minn. Tax Ct. Aug. 29, 2001 }. Wybieraia v. Commissioner of Revenue, 587 N.W.2d 832, 835 (Minn. 1998); Swyningan v. Commissioner of Revenue, Docke#. No. 4706 (Minn. Tax Ct. Dec. 7, 1987). W~ right v. Commissioner of Revenue, Docket. No. 4498 (Minn. Tax Ct. Apr. 22, 1987). a New Corner Bar citing, F-D Oil Co. v. Commissioner of Revenue, 560 N.W.2d 701 (Minn. 1997); Beaudet & Beaudet v. Commissioner of Revenue, Docket. No. 6949 (May 19, 1999). 11 under Chapter 297A, that use is considered a retail sale by the purchaser and the sales price to the purchaser is considered grass receipts. Minn. Stat § 297A.73 (2006) Appellant kept no receipts, invoices, or other records to show what ma#erial or labor was purchased from each vendor. Kee Lo's testimony was that the records were in a briefcase and were stolen along with a plasma television and some toots. Appellant presen#ed no o#her evidence to support #his claim. The claim that someone stole the records at the time of a burglary is doubtful, when one considers Mr. Kee Lo's testimony tha# he made no attemp# to ob#ain copies of receipts or other documents. Because of the lack of evidence, we find that Appellant has failed to show that the assessment for use tax was not reasonable. Cover Charges Appellant was assessed for tax due on the cover charges for events such as dances or concerts held at Jun Bo. Appellant argues that it received no cover charges prior to May 2007. Prior to May 2007, the events were managed and run by a man named "Mingo." He was responsible for getting the band, advertising and collecting the cover charge. According to Kee Lo, they did not know Minga's fast name or how to contact him. Mingo would simply come into Jun Bo and ask if he could put on an event. After Mingo s#opped booking, they had no way of contacting him. Appellant maintains that Mingo is an independent contractor and should be responsible far the sales tax on the cover charges. There were no written contracts for the events; Appellant'has no records of the events. The auditors found three ads in Spanish language newspapers for 12 dances at Jun Bo. The ad states that the promoter was Producciones Montoya. The Commissioner asserts that the ads show that Appellant is the principal of the promoter. We disagree. The ads show Jun Bo as the location but there is nothing in the ads which would indicate that Jun Bo is involved as a principal or that Producciones Montoya was its agent. There were no bank deposits corresponding to cover charges from the dances. Appellant argues that this lack of bank deposits shows #hat they did not receive any cover charges for the events that Mingo organized. On the other hand, there were no records of revenue when the Lo brothers managed the events and received the cover charges. This was admitted by the Lo brothers. During the audit, the auditors requested that Appellant keep records about the dances and concerts being held at Jun Ba. Appellant was also asked to keep records about price and attendance. Appellant did not do so. The audit determined an additional $760,000 in taxable sales from the sale of admission into events from May 2006 through November 2007, resulting in an additional $49,400 in taxes. The charge assumed by the Commissioner in the calculation was $20 per person. In assessing tax on the coverage charges, the Commissioner estimated the amount of revenue by multiplying an estimated cover charge per event times an estimated number of events times the number of persons attending the event. The prices listed in the Spanish newspaper ads were used in calculating revenue along with information from the Bloomington police department about the size of a crowd attending one of the. concerts. A report of the size of crowds was also 73 obtained from an ex-HKD Lo, inc. bartender who left on bad terms. The police did not go inside Jun Bo but estimated the number of people based on the number of cars. Appellan# argues that the Commissioner never attempted to find-Mingo or enter the last name into the Deparkment of Revenue's data base to determine if Mingo had paid sales tax. Further, Appellant argues that the cover charge and numbers attending events were overstated. The only documented cover. charge during the time that Mingo was running the events was that listed in the Spanish newspaper ads. This was $15. This should be the amount used in calculating revenue. Further; the numbers of persons attending the events when Kee and Dan Lo ran the events should be used to calculate the cover charge for the period Mingo ran the events. We find that number should be 175, which is an average. Thus, the revenue and tax should be recomputed: After Mingo stopped running the dances, Kee Lo and Dan Lo took them over. The brothers testified that they were charging $5 -15 per person as a cover charge. Attendance was between 50 and 130 persons far disc jockeys and between 200 and 300 for live music. The capacity for the event center is 350. Kee Lo testified that some events were canceled because of poor attendance and admissions charges were refunded, but there was no documentation about how many events were canceled or admissions refunded. 14 Appellant failed to report and pay sales tax on the cover charges fior the time period when Mingo ran the events and.fro the time period when the Lo brothers ran the events. Therefore, based on the newspaper ads and information about attendance after the Lo brothers began running the dances, we find that the cover charges should be recalculated at 175 persons per event at a charge of $15 per person. Sales .Tax on Revenues from Parties and Banquets Admission charges to musical concerts, dances, and other similar events constitute sales.5 Appellant admits that it kept no records of revenues received from parties or banquets. Appellant does, however, contest the amounts used in the assessment. We find Appellant has not produced evidence sufficient to show that the Commissioner's assessment was invalid. Sales Tax on Alcohol Sales The next issue is whether the Commissioner properly assessed tax on alcohol tax. First, we note that Appellant admits that it paid no Hennepin County alcohol sales tax. This part of the Order is not contested. Second, The Commissioner has agreed that the Court can and should direct an adjustment of assessment far credit given for the end of year inventory. The main issue regarding sales tax on the alcohol sales is whether the indirect audit used by the Commissioner was appropriate. The indirect audit calculated alcohol sales for the tax period here using the unit volume method. Appellant argues that improper assurtaptions were made in using the unit of volume method of indirect audit in calculating alcohol sales. The basic points of s Minn. Rule 8139.0900, subp. 2 (2008}; Minn. Stat § 297A.61, subd 3. 15 contention are the size of the alcoholic drink pour per serving, spillage amounts, the mislabeling of non alcoholic beverages as alcoholic and the,effeck of mixers. Appellant did not maintain accura#e or suffiicient records to determine the amount of alcohol sold. The records from the computer were admittedly incorrect and incomplete and a significant number of the sales invoices were missing. Thus, as in New Corner Bar, we find using an indirect method of calculating the sales was appropriate. Under the unit volume method of calculating alcohol sold, the size of the drink pour is very important. This method recreates sales by taking the gross volume of alcoholic beverage purchased by the bar from the wholesalers {which is a verifiable amount} and calculating the number of individual drinks that would be sold from that grass volume. An allowance is made for spillage and waste. This is then mul#iplied by the sales price of the drinks to get total, sales from alcoholic beverages. In New Corner Bar, this Court approved the method the auditors applied here. Here, the taxpayer lacked sufficient records to allow for a direct audit of its sales and use tax returns. The auditors contacted the taxpayers' liquor supplies to determine sales to Appellant, obtained from the taxpayers the retail sales prices far various items sold at the bar, and abtained the average size of drinks poured. Based upon the size of the drinks served, the auditars recreated probable sales by taking the gross vaiume of alcoholic beverages it had purchased from wholesalers and calculating the number of individual drinks that would be sold from that. gross volume. Making an allowance for spillage and 16 waste, the resulting figure was multiplied by the sales price of drinks to~ arrive at the bar's gross sales of alcoholic beverages. As in New Corner Bar, the "unit volume method" was an appropriate form of indirect audit in the present case.6 We next examine same of the assump#ions used by the auditors to determine whether or not they were erroneous. The drink pour size used by the auditors in their calcula#ions came from a questionnaire filled out by Appellant. The drink pour size was 2.0 ounces of liquor and 6 ounces far wine (allowing for spillage and waste). Appellant asserts that the amount of alcohol in the bar audit questionnaire did not reflect the true amount poured because ofi overpours by the bartenders and spillage. Appellant argues that the amount should be adjusted. Using Appellant's inventory numbers and pour size, the Commissioner estimated the safes of alcohol for the audit period to be nearly nine times the level of sales reported by Appellant on its sales tax returns. This, according to the Commissioner, is supported by the fact that there were a significan# number of alcohol purchase invoices missing-approximately 62% according to the auditors' testimony. While Appellant initially argued #hat the inventory numbers and sales figures provided by suppliers were overstated, Ms. Shenouda, one of the auditors, stated that she saw invoices marked "paid in cash," contradicting testimony by both Dan and Kee Lo. The cash invoices supported the figures reported by Appellant's suppliers. In his A~davit, Mr. Swanson also says that he s See also Kirby v. Commissioner of Revenue, Docket. Nos. 4985 e# ai. (Minn. Tax Ct. Jan. 17, 1989); BnLn v. Commissioner of Revenue, Docke#. No. 351 (Minn. Tax Ct. Nov. 12, 1986). 17 saw invoices marked "cash," which in his experience with the restaurant industry . indicates that the invoices were paid in cash. Mr. Swanson believed that Mr. Yik Lo was the person likely to have paid an invoice in cash. Another explanation for the difference in the reported sales and inventory, according to Appellant, is due to theft and overpouring. Appellant suspected Erik, a bartender, of overpouring, giving free drinks and stealing money. Appellant put a video system in bar area, but could not ge# a clear enough video to see misconduct. Appellant also counted money coming in, but this was inconclusive. Appellant felt it could not terminate Erik without clear evidence. Thus, Erik was not terminated for over four months after Appellant began suspecting him of theft. The Commissioner asserts that Appellant did not take reasonable steps to determine if Erik was overpouring and taking money from the till. We agree with the Commissioner. The story about Erik is suspicious, given. the lack of supporting documentation or witnesses. It seems highly unlikely that Jun Bo would keep a bartender for over four months when they believed he was committing theft. !n this case, the auditors gave Appellant multiple opportunities to provide information regarding purchases and sales made during the tax period. Despite these repeated requests, the information received was inadequate and incomplete at besfi. Appellant does not dispute the auditors' inability to verify information on the records that were produced. Under these circumstances, we find that the auditors were reasonable in_using an indirect method of audit and that the uni# volume method was an appropriate form of indirect audit. 18 Mr. Kee Lo had stated that the size of a drink pour was 2 ounces, and wine was 6-8 ounces. The Commissioner argues that even given drinks poured at these sizes, the quantities of alcohol sold do not match up with repor#ed sales and inventory. At #rial, however, Appellant asserted that there was considerably more spillage than the 5% used in the Commissioner's calculations. This, according to Appellant is due in part to the fact that beer in a keg produces mare foam depending on the temperature and the auditors never determined the proper amount of spillage due to beer foam. We agree with one explanation given by Appellant in disputing the inventory numbers; the auditors mistook some of the mixers and other nonalcoholic beverages as alcoholic beverages when analyzing the inventory list. Thus, the alcohol inventory was miscounted. It was clear from the cross examination of the auditors that there were errors due to these mistakes. This must be factored into the calculations. We find that using the indirect method of determining sales in this case was appropriate, with the exception of the mislabeling of inventory.' Appellant has failed to establish that the Commissioners method of. determining sales was unreasonable.8 We also find #hat the method used by the auditors is reasonable in light of the lack of records. The amount assessed shall be. recomputed to factor in the mislabeled mixer and nonalcoholic items as stated above. Fraud __ Id. e New Comer Bar, Wright; Itsa y. Commissioner of Revenue, Docket. No. 6731 (Minn. Tax Ct. Nov. 26, 1997). 19 Minnesota Statute Section 289.80, subd. 6 provides for the assessment of a 50% penalty when a person "flies a false or fraudulent re#urn, or attempts in any manner to evade or defeat the tax ~or payment of tax." To prove tax fraud, the taxing authority must show that the taxpayer intended to evade a tax known to be or believed to be owing.g The presence of fraud is a question of fact10 Fraud is not presumed, but can only be established by independent evidence that demonstra#es the taxpayer's fraudulent ~ntent.j' Because direct proof of intent is usually not available, tax fraud may be shown by circumstantial evidence.~z (n tax cases,.the Commissioner can establish fraud from the transactions themselves, as well as from the conduct of the taxpayer.13 Intent to commit fraud may be shown by various factors or indicia. These include knowledge of tax laws, failure to keep records, consistent and substantial understatements of amounts subject to tax, understatements so large and regular that they cannot be attributed to mere negligence or ignorance, failure to cooperate with taxing authorities, and implausible or inconsistent explanations of behavior.14 The Commissianer argues that the fraud penalty assessmen# is justified because Appellant meets all the indicia of fraud. Appellant argues that the Commissioner did not meet its burden to prove fraud. Appellant.. argues that the 9 New Corner Bar, citing Stoltzfus v. United States, 398 F.2d 1002,1004 (3d Cir. 1968}. See Gajewski v. Commissioner. 67 T.C. 181, afPd w/a pub. Op. 578 F.2d 1383 (8th Cir. 1978). '~ New Corner Bar; Otsuki v. Commissioner, 53 T.C. 96 (Oct. 29, 1969). 12 Stoltzfus; McClunq=l_oc~an Eauip. Co. v. Thomas. 226 Md. 136 (1960}; Spilf v Commissioner, 57 T.C.M. 314 (1989); Genie & Co Inc v Comptroller of Treasury, 668 A2d 1013 (Md. App. 1995}. 13 New Corner Bar, Reed v. Commissioner of Revenue, pocket No. 4285 (Minn. Tax Ct. Dec. 3, 1985). 14 New Corner Bari Bradford y. Commissioner, 796 F.2d 303 (19`h Cir: 1986); Genie. 20 Commissioner failed to show that the taxpayer intended to evade a tax known to be or believed to be owing. Further, the burden of establishing fraud is on the Commissioner. We agree with Appellant on the point that proof of fraud belongs to the taxing authority.' We turn to the indicia of fraud to determine whether The Commissioner has~met i#s burden. Knowledge of Tax Law The first factor indicating fraud is whether the taxpayer had knowledge of tax laws. Here, the Lo brothers relied on their accountant to calculate and file sales tax returns. Appellant argues that the Lo brothers were naive about taxes and did not know that they owed Hennepin County taxes. Mr. Swanson was not called to testify and his Affidavit, submitted after trial, does not give us additional facts to know how much the Lo brothers knew about frling taxes. The admissions, stories and excuses for failing to have records, however, lead us to . believe that sales were not being reported to Mr. Swanson. This would indicate that they knew taxes were due on the sales. Failure to Keep Records Another factor used to prove intent to commit tax fraud is the failure to keep records. Appellant argues that it gave all of the records it had to the auditors, and gave the auditors access to the documents in the hands of its accountants. The Commissioner argues, and we agree, that the record keeping was woefully inadequate. There was a significant number of missing invoices. There was a lack of computer records. (Appellant admitted that it did not enter revenue regarding dances or banquets in the computer system.) Documents 15 New Comer Bar. 21 viewed by the auditors at the accountant's office showed cash purchases of alcohol. These documents were returned #o Appellant. Appellant now claims they were Post or stolen. The fact that critical documents disappeared during the investigation in which payment of cash for inventory was a major focus, leads to an inference that the documents may have been destroyed or hidden. While we cannot determine that as many as 60% of documents are missing as alleged by the Commissioner, the large number of missing invoices, computer records, the admitted failure to record information, and the loss of records returned by the accountant persuade us that Appellant failed to keep adequate records from which a direct audit could be done Further, the contention that someone stole the records at the same time as stealing tools and a television is simply not believable. Consistent and Substantial Understatement of Amounts Subject to Tax Appellant consistently and substantially underreported its sales tax burden to such an extent that the underreporting could not be attributed to mere negligence. No sales were reported from weddings, banquets or parties. No revenue from cover charges was reported during the time that the Lo brothers were managing the dances. The amount of alcohol said to have been sold does not match the amount of alcohol purchased, even considering spillage and the alleged stealing by one of the bartenders. This factor showing fraud is met. 22 Implausible or Inconsistent Explanations ofi Behavior Another indicator of a taxpayer's intent #a fraudulently underreport tax is implausible or inconsistent. explanations of behavior. We listened to testimony from Mr. Dan Lo and Mr. Kee Lo over the course of the trial. We found much of the testimony to be not credible. The story about a burglar stealing records of the company, as well as a television and tools is not believable. There was no independent evidence that a theft had occurred. Further, the story that Eric, the bartender, was stealing cash out of the tilt, giving drinks for free, or not entering sales is also not credible. The bartender was kept on for four months after they suspected #heft. While they put in recording cameras, they said the video quality was not good enough to fire the bartender. They took no other action to determine if Eric was stealing. Mr. Kee Lo and Mr. Dan Lo both testified that they were not aware that their father had paid cash for alcohol. This was also dubious considering the large amount of inventory and the fact that one or both the Lo brothers were on site at almost al! times. Cooperation with Authorities We acknowledge that Appellant cooperated with the audi# to a certain degree. However, the failure of Appellant to record attendance at dances, as requested by the auditors, and the failure to turn over records that had been in the hands of the company's accountant show a lack of cooperation. 23 v Therefore, the only two factors that Appellant meets, in part, is lack of tax obligations, and cooperation with authorities. Again, that is only in part. Thus, we affirm the fraud penalty. Conclusion Appellant admits that it under reported sales throughout the audit period. We find the Commissioner did make some errors in its calculation of sales and we direct the Commissioner to recalculate the sales in accordance with this opinion. We find that~Appellant did not meet its burden of proving that the indirect method of calculating alcohol sales was unreasonable. With respect to the fraud penalty, we do not find Mr. Kee Lo's testimony or Mr. Dan Lo's testimony and explanations to be credible or substantiated by independent and verifiable evidence. Appellant meets all but two of the indicia of fraud. Appellant has failed to prove the Order to be incorrect or unreasonable and we, therefore, affirm the fraud penalty. The Commissioner of Revenue is hereby directed to recalculate the taxes and penalty amounts due based on our findings about the inventory and cover charges. The remaining portions of the Order are affirmed. K. H. S. 24 ~~- Printed by: ri508sw ~nCldent Report Page 1 of 2 Printed date/time: 3/7/11 11:26 RICHFIELD PUBLIC SAFETY 6700 PORTLAND AVENUE SOUTH, RICHFIELD, MINNESOTA 55423 (612) 861-9800 Incident Number: RI11-00000600 Incident Summary Incident Type: CRIMINAL OFFENSE(S) Report Type: Inc Occurred Address: 7717 NICOLLET AV S, RICHFIELD, MINNESOTA 55423 Sector/Beat: 2/RI02 Inc Occurred Start: 03/05/2011 00:4& Inc Occurred End: Report Taken: Domestic: N Bias Motivation: Gang Related: U Substance: U Contact Nature: PHONE Reported Date/Time: 03/05/2011 00:46 Reporting Officer: JENSEN, RIAN Primary Assigned Officer. Case Status: CLOSED Disposition: EXCEPTIONAL CLEARED Disposition Date: 03/07/2011 11:23 Offenses Statute Code: 609-72-1 Enhancers: Statute Desc: DISTURB-DISORDERLY CONDUCT Counts: 1 Statute Severity: MISDEMEANOR Businesses Involved Business # 0001 Event Association: LOCATION Business Name: JUN BO Business Type: RESTAURANT/BAR/CLUB Address: 7717 NICOLLET AV S, RICHFIELD, MINNESOTA 55423 SectorBeat: 2/R102 Phone Type 1: BUSINESS Phone# 1: (612) 866-688$ Ext 1: Phone Type 2: Phone# 2: Ext 2: 1~-a Printed by: ri508sw ~f1Cld@flt R@port Printed date/time: 3/7/11 11:26 1~ Page 2 of 2 RICHFIELD PUBLIC SAFETY 6700 PORTLAND AVENUE SOUTH, RICHFIELD, MINNESOTA 55423 (612) 861800 Incident Number: RI11-00000600 Narratives ENTERED DATE/TIME: 03/07/2011 11:25:10 NARRATIVE TYPE: SYNOPSIS AUTHOR: JENSEN, RIAN On 03/05!11, at 0046 hours, officers were conducting extra patrol at Jun Bo, 7717 Nicollet Avenue South, and observed a disturbance. For safety reasons the venue at Jun Bo was shut down early to prevent any further disturbances. See additional narrative. (~ - 3 RICHFIELD DEPARTMENT OF PUBLIC SAFETY INCIDENT REPORT CASE NAME REPORT DATE CASE NUMBER JUN BO 03/05/11 11000600 MINCIS Reporting Officer&Badge# Page Entered Canceled ROBERTS #134 (03/07/11 sw) 1 Narrative: On 03/05/11, at 0046 hours, I, Sergeant Roberts, responded to Jun Bo, 7717 Nicollet Avenue South, on a report of fights inside the restaurant. Officer Jensen and Officer Majewski were on the scene and had requested more squads to assist. I had been in the area previously due to reports from Minneapolis Police regarding reported fights between gangs and possible retaliation at Jun Bo on this date. I arrived in the area and in the entryway was a Hispanic male with blood on his face. He was combative with Jun Bo security and was uncooperative. When I spoke with him he kept stating that he was going to go back inside and finish beating someone that'he had knocked to the ground. He also stated as he was leaving that he made a threat that referred to bringing back a gun. I went into the restaurant and saw in the dance area where the band was playing was a large group numbering over 100 individuals. There also appeared to be people with blood on their shirts that were getting up on the stage. This appeared to be three Hispanic males, one of which was trying to take the microphone away from a band member.' I requested that Bloomington Police. be called to assist. I observed that the Jun Bo security appeared to be trying to hold people back from fighting on the dance floor, but the group was becoming more out of control. I spoke with the owner, Denny Lo, and explained to him that due to the threats and potential violence of the situation that the event needed to be shut down. I asked him if he had any specific opposition to doing this and he stated he did not. I then asked for Airport Police and Edina Police to respond to assist due to the large number of people that needed to be cleared out of the restaurant. Lo stated that it was getting out of hand and several of the Jun Bo security stated, "It was a good thing that the two officers came in when they did because things were really starting to get out of hand". As Bloomington, Airport and Edina Police came to assist we assembled and first cleared out the bathrooms. We closed down one hall entrance to keep people out of the area. The coat check area was kept open so as individuals were told to leave they could get their coats. Eight officers stayed close to the entrance to deal with the crowd and another eight officers, including myself, went to the front of the dance floor area by the band and the manager told the band to stop playing. The lights were on at this time and we had all the people there stop drinking and leave the area. This took approximately 20 minutes to clear the area and get everyone out to the parking lot and to their vehicles. There were no further incidents, no one became combative and there were no further injuries that we could see. Prior to clearing out the dance floor area several people left through the side door where there was a large "party bus". It is unknown how many people left prior to officers clearing the room. Painted: 3/7/2011, 11:38:25AM I~ -y RICHFIELD DEPARTMENT OF PUBLIC SAFETY INCIDENT REPORT CASE NAME CASE NUMBER JUN BO 11000600 Reporting Officer - Badge # -Report Date Page ROBERTS #134 (03/07/11 sw), 03/05/11 2 Painted: 3/7/2011, 11:38:25 AM i~_s RICHFIELD DEPARTMENT OF PUBLIC SAFETY INCIDENT REPORT CASE NAME REPORT DATE CASE NUMBER JUN BO 03/05/11 11000600 MINCIS Reporting Officer& Badge # Page Entered Canceled JENSEN #179 (03/07/11sw) 1 Narrative: On 03/05/11, at 0046 hours, Officer Majewski and I were conducting extra patrol at Jun Bo, 7717 Nicollet Avenue South. There was a large crowd attending the band playing at the restaurant. Officer Majewski and went inside the restaurant and standing near the front door when the band, which was playing extremely loudly, quieted down. The crowd erupted and we heard there was a fight. We observed security guards removing approximately six patrons from inside the restaurant. We called for more officers to respond to assist. Sergeant Roberts and other officers arrived and we observed that the situation was escalating with individuals in the crowd and the decision was made for the safety of the patrons and officers that it was best to shut down the event. In order to safely facilitate this Sergeant Roberts called in officers from Bloomington Police, Edina Police and Airport Police to assist us with removing everyone from inside Jun Bo prior to closing. The individuals inside Jun Bo were all removed without any further incident. Because initially only Officer Majewski and I were present at the time of the initial contact we were not able to obtain information on the individuals. involved in the fight. For safety reasons these individuals were immediately asked to vacate the premises, which they did. While on the scene Sergeant Roberts spoke with the manager of Jun Bo and advised him of the reasons for closing the venue down early. 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Q ~ 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 N 0 N 0 N 0 N 0 N 0 N 0 N 0 N 0 N 0 N 0 N 0 N_ 0 N 0 N 0 N 0 N 0 C~V 0 N 0 N _ ch N ~ ~ _ M V ~ 7 N N M ~ O ~ N N O N N O) ~ ~ ~ ~ O N M ch ~ ~ ~ In CO c0 CO ~ ~ W 1-(~ ~~ ~-~~ ~7 RESOLUTION NO. A RESOLUTION DENYING RENEWAL OF THE ON-SALE INTOXICATING AND SUNDAY LIQUOR LICENSES FOR HKD, INC., D/B/A JUN BO CHINESE RESTAURANT, 7717 NICOLLET AVENUE SOUTH WHEREAS, in October 2010, HKD Lo, Inc., d/b/a Jun Bo Chinese Restaurant ("Applicant") applied for renewal of its on-sale intoxicating liquor license and a Sunday Liquor License from the City of Richfield (the "Licenses"); and, WHEREAS, the City Council considered the Applicant's application for renewal of the Licenses on December 14, 2010; and' WHEREAS, on December 14, 2010, there were pending two disciplinary matters regarding the 2010 Licenses and there also was pending a sales tax dispute before the Minnesota Tax Court; and WHEREAS, the City Council extended the 2010 Licenses and continued consideration of the application for renewal for 2011 until the pending disciplinary and sales tax matters were resolved; and WHEREAS, the disciplinary matters have been resubmitted to the City Council for consideration of a settlement proposal and the Minnesota Tax Court has rendered its decision in the sales tax dispute; and WHEREAS, the Applicant's application for renewal of the Licenses for 2011, was again considered by the City Council on April 12, 2011. NOW THEREFORE, BE IT RESOLVED by the Mayor and Council, City of Richfield, Minnesota, as follows: 1. In prior years that the Applicant has held the Licenses, the Public Safety Department has experienced a significant number of police calls to the premises. 2. A significant number of those calls have involved situations where it appeared that the Applicant failed to responsibly dispense alcoholic beverages and to control the conduct of its patrons.. In the 12-month period from September 2009 to October 2010, there were more than 20 such incidents. Review of those incident reports reveals: ~ I a. The vast majority of thelincidents occurred between the hours of midnight and 2 a.m., with a significant number occurring immediately prior to or immediately after closing time. The timing for these calls, and the number of calls that involve intoxicated patrons, raise a public safety concern. 384892 CAH RC145-622 1 b. Many of the incidents involved patrons on or leaving the licensed - premises in a condition of extreme intoxication. Of significant concern is that a number of instances involved groups of intoxicated individuals, not just a single intoxicated patron. c. On at least one occasion, the public safety department reported that illegal substances, specifically marijuana, were being consumed on the licensed premises. d. On numerous occasions, the public safety department was called as a result of assaults or fights occurring on the premises that involved intoxicated patrons. 3. The Applicant has engaged in sales practices that show a lack of concern about the potential for over-serving its patrons. For example, the Applicant had a practice of selling buckets of beer, where six beer bottles would be placed in a bucket and sold to an individual. The Applicant has continued this practice, contending that it should be allowed to continue the practice so long as minors are no longer permitted in the part of the premises where the buckets are sold. As another example, public safety told the Applicant's bartenders to refuse service to an intoxicated individual whose wristband was confiscated. Immediately after, the bartenders sold two beers to the individual's companion. 4. A business establishment that sells intoxicating liquor must demonstrate the ability to strictly comply with all applicable laws and to maintain complete and accurate business records necessary to establish that compliance. Based on findings of the Minnesota Tax Court; the Applicant does not meet that standard. The following court findings raise serious concerns about the Applicant's capacity and willingness to competently run any business, much less a business that is involved in the sale of a dangerous substance to the public: a. There was consistent and substantial underreporting of tax owed. Applicant lacked adequate records to permit a full and complete audit. Up to 62 percent of the daily sales transaction records for the applicable time period were', missing. (Opinion p.10). The Applicant is required by ordinance to maintain a ratio of food sales to alcohol sales. The tax court decision establishes that the Applicant does not maintain reliable records, which casts significant doubt on the accuracy of the accountant statement provided by the Applicant. i b. During the audit, the auditorls requested Jun Bo to keep records about dances and concerts being held at the licensed premises. Jun Bo was also asked to keep records about price and attendance. The Applicant 384892 CAH RC145-622 2 did not comply with that request. (Opinion, p. 13). This finding shows that Applicant is either unvvilling or incapable of complying with reasonable and lawful requests of government authorities, in order to document the Applicant's compliance with its I'egal obligations. The City Council has no confidence in the Applicant's ability or willingness to comply with the City's ordinance requirements. c. Jun Bo admitted that. it paid no Hennepin County alcohol sales tax. (Opinion, p. 15). Again, based on this finding, the City Council lacks any confidence in the Applicant's ability to comply with all laws applicable to the sale of intoxicating liquors. - d. Applicant did not maintain accurate or sufficient records to determine the amount of alcohol sold. (Opinion, p. 16) e. The auditors gave Applicant multiple opportunities to provide information regarding purchases and sales made during the tax period Despite those repeated requests, the information received was inadequate and incomplete'at best. (Opinion, p. 18). Applicant does not show the business competency that the City Council .expects of any establishment engaged, in the sale of a dangerous substance. f. Based on the Applicant's "admissions, stories and excuses" for failing to have records, the Tax Court determined that the Applicant was not reporting sales to its accountant and that the Applicants knew taxes were due on the sales. (Opinion, p. 21) g. The Applicant's record keeping was "woefully inadequate," and its contention that some of the records had been stolen was "simply not believable." (Onion, pp. 21-22) h. The Applicant consistently and substantially underreported its sales tax burden to such an extent that the underreporting "could not be attributed to mere negligence." (Opinion, p. 22) i. The Applicant provided implausible and inconsistent explanations of its behavior. The Tax Court found much of Mr. Dan Lo's and Mr. Kee Lo's testimony to be "not credible," "not believable;" and "dubious." (Opinion, p 23) j j. The Applicant failed to cooperate with the auditor by failing to keep records as requested by the auditor and failing to turn over records that had been in the possession of its accountant. '' (Opinion, p. 23). 5. Based on the Tax Court's findings nand its decision to uphold the imposition of a penalty for fraudulent underreporting of sales tax, the City Council finds that 384892 CAH RC14S-622 3 the Applicant has not shown that its is competent to maintain adequate records and operate a business engaged in the sale of intoxicating liquor in the manner expected of licensees in the City of Richfield. The City Council also has grave concerns about the moral character and repute of the Applicant's business manager and its chief spokesperson, Kee Lo and Dan Lo. 6. Although Applicant admitted that it owed certain sales taxes, the Applicant did not pay them. Those taxes are delinquent in excess of one year, and the City will not issue a license for an establishment that has taxes delinquent in excess of one year. 7. The Applicant has announced thaf it has sold the licensed premises and that it expects to close its business in September 2011. Applicant has no long- term plans for its business at this location, and that is a recipe for problems. Applicant has no incentive to make the substantial changes in management that would be necessary for it to become a reliable and responsible liquor establishment. 8. For all of the reasons above, the City Council denies the Applicant's application for renewal of the licenses. 9. The 2010 license is extended until'the effective date of this resolution, at which time all alcohol sales shall immediately cease. 10.This resolution is effective as of , 2011 at 12:01 a.m. Passed by the City Council of the City of Richfield, Minnesota this 12'h day of April, 201.1. Debbie Goettel, Mayor ATTEST: Nancy Gibbs, City Clerk 384892 CAH RC145-622 4 AGENDA SECTION: RESOLUTIONS AGENDA ITEM # 17 REPORT # 88 STAFF REPORT CITY COUNCIL MEETING APRIL 12, 2011 REPORT PREPARED BY: JIM TOPITZHOFER, RECREATION SERVICES DIRECTOR NAME, TITLE DEPARTMENT DIRECTOR REVIEW: REVIEWED BY CITY MANAGER: ITEM FOR COUNCIL CONSIDERATION: Discussion regarding the Council's desired approach to notify the public about the Community Services Commission's recommended skate park concept for Augsburg Park. I. RECOMMENDED ACTION: I, No Action Requested: Discuss the desired approach to notify the public about the Community Services Commission's recommended skate park concept for Park. IL BACKGROUND - After alengthy process over two and a half years (see attached timeline), the Community.Services Commission is recommending City Council to approve a contract with Hardcore Shotcrete Skateparks, Inc. to design and construct a concrete tier-one skating facility in Augsburg Park. The selected concept is to construct a structure that is attached to the existing basketball court located in Augsburg Park with the assumption that the court would be used for skateboarding as a starting point to enter the structure and for future .expansion of the facility. The new structure would be constructed in the northwest corner of the basketball court and would face north going downhill. The new structure is constructed with poured-in-place concrete including stainless steel railings and coping. The dimensions of the structure are 24 ft. x 70 ft. There are no drains needed in this design. The design will require the removal of one mature oak tree located off the north side of the basketball court. 04 12 11 Augsburg Park Skate Park Design Two public meetings were conducted in the planning .process of this facility, inviting the surrounding neighborhoods and the larger community to provide feedback. Strong opinions, in opposition and in favor, were expressed at both meetings. Since the public meetings were conducted some time ago (first public meeting on 10/21/08 and second one on 7/28/10), staff is recommending to notify the community of the recommended concept in advance of Council's consideration of the contract. Council could choose to conduct a public hearing at a future Council meeting or to conduct a public hearing at a future Community Services Commission meeting. III. BASIS OF-RECOMMENDATION A. POLICY • A contract to design and build a skate park in a Richfield park requires Council approval. Although a public hearing and/or a public meeting would not be required upon executing such a contract, it has been past practice to seek feedback from and to notify the community of all major park improvements. B. CRITICAL TIMING ISSUES • Construction of a concrete skate park can begin after frost restrictions . are lifted which is usually after May 1. C. FINANCIAL • Total project costs include: . $66,500 Design and Construction (RFP Budget) $2,500 .Soil Testing 1 000 Site Survey $70,000 Total Project Cost • The project is included in the 2010 Capital Improvement Budget in the amount of $70,000. D. LEGAL • None E. ENVIRONMENTAL CONSIDERATIONS • The Community Services Commission's recommended concept would require the removal of one mature oak tree in Augsburg Park. IV. ALTERNATIVE RECOMMENDATION~S~ • Council could choose to conduct a public hearing at a future Council meeting or to conduct a public hearing at a future Community Services Commission meeting. V. ATTACHMENTS • Staff report to the Community Services Commission on March 15, 2011 regarding skate park design for Augsburg Park. • Tier-One Skate Park Planning Process Timeline VI. PRINCIPAL PARTIES EXPECTED AT MEETING • Some members of the Community Services and Roger Schmidt may be attending the meeting. i~-~ RICHFIELD COMMUNITY SERVICES COMMISSION EXECUTIVE SUMMARY Meeting Date March 15, 201] Agenda Item Agenda Section Skate Park Desi n Pro osal Action Items Attachments Staff Contact None Jim To itzhofer The Skate Park Design Selection Committee is recommending the below concept design as presented by Hardcore Shotcrete Skateparks, Inc.: The structure is attached to the basketball court located in Augsburg Park with the~~Gmption that the existing court would be used for skateboarding as a starting point to enter the structure and for future expansion of the facility. The new structure would be constructed in the northwest corner of the basketball court and would face north going downhill. The new structure is constructed with poured-in-place concrete including stainless steel railings and coping. The dimensions of the structure are 24 ft. x 70 ft. There are no drains needed in this design. The design will require the removal of one mature oak tree located off the north side of the basketball court. Cost of the project, including soils amendment, soils report and site survey, is $70,000 and is included in the approved Capital Improvement Budget. Construction is scheduled to be completed by the end of summer, pending contract approval from City Council. Staff will provide additional information at the meeting regarding Hardcore's design proposal. Recommended Action: Motion to recommend City Council execute a contract with Hardcore Shotcrete Skateparks, Inc. based upon their submitted design proposal. ~-~ - a Tier-One Skate Park Planning Process. Timeline CSC approves Parks Master Plan, identifying a need for atier-one skate park 8119/08 - -- _ 1 Roger Schmidt presents ideas for a skate park to CSC ', 9/16/08 Augsburg Park Neighborhood Meeting 1.0/21108 CSC evaluates and scores potential sites-recommends Augsburg Council recommends postponing project due to operating budget climate 1 /20/09 1109 Community Services Commission recommends approval of 2010 capital budget, including the skate park 3/16/10 CSC confirms recommendation for Augsburg site 5/18110. Council approves 2010 capital budget, including the skate park 6/8/10 Skate Park Selection Committee begins. meeting 7/10 Augsburg Park Neighborhood Meeting 7/28110 ,CSC recommends authorization to issue RFP ~ 8/17/10 Council authorizes staff to issue RFP, soil tests and site survey 9/28/10 Soil Tests and survey completed, RFP mailed 1113/10 Proposals received and selection committee begins their review 12/1!10 CSC recommends Council award of contract to Hardcore Shotcrete Skateparks 3/15/11 CITY OF RICHFIELD, MINNESOTA Office of City Manager April 7, 2011 Council "Memorandum No. 44 The Honorable Mayor and Members of the City Council Subject: Fire Chief Retirement and Replacement (Agenda Item No. 18) " Council Members: Fire Chief Brad Sveum has announced he will retire on June 29, 2011. With his retirement date so close at hand., it is important that a process be established to fill that vacancy as quickly as possible. There are candidates within the Fire Department who are very well qualified to assume the position of Fire Chief. These employees have been an integral part of the management and growth of the Fire Department. Moreover, they are also well known and respected within the metropolitan area. With this in mind, I would seek City Council approval to open up the application process for Fire Chief as an internal recruitment only. In addition to having well qualified personnel internally, doing an outside search is more time consuming and it is possible the position would not be filled quickly. The timing of the recruitment and selection is important because of our Department of Homeland Security grant we received in 2010 for two Firefighters. If we temporarily reduce the authorized uniformed fire staffing strength below 26, the amount of our grant would be proportionally reduced. If the Fire Chief is hired from within, there would be a need to hire a new Firefighter. It is more economical in terms of-wages and overtime costs, to bring the new firefighter on board before the actual vacancy occurs. This would allow the new Firefighter to go through initial recruit training and, get up to speed in Richfield procedures so that they may be used as part of the normal shift complement. Otherwise, until the new Firefighter is initially trained, overtime is incurred to fill the vacant position. Hiring a new Firefighter prior to the vacancy occurring would exceed City Council budget authorized staffing of the Fire Department, from 26 to 27, fora 2 to 3 week period of time. two items will be discussed at the City Council meeting Tuesday April 12, 2011. SLD:cak Email: Department Directors Assistant to the City Manager AGENDA SECTION: RESOLUTIONS AGENDA ITEM # 22 REPORT # 89 . ~. ~~_= STAFF REPORT CITY COUNCIL MEETING APRIL 12, 2011 REPORT PREPARED BY: REVIEWED BY CITY MANAGER: STEVEN. DEVICH, CITY MANGER s/ NAME, TITLE ITEM FOR COUNCIL CONSIDERATION: Summary review of City Manager annual performance evaluation for 2010 and consideration of resolution amending employment agreement between City of Richfield and City Manager Steven L. Devich for 2011. I. RECOMMENDED ACTION: • Provide a summary review of the City Manager's performance evaluation for 2010 and; • By motion: Adopt a resolution amending the employment agreement between the City of Richfield and City Manager Steven L. Devich for 2011. II. BACKGROUND The City Council has conducted a performance review of the City Manager for 2010 and musf now, per State Statute, make a summary report of the outcome of that evaluation. In addition, the City Council has reviewed the compensation of the City Manager and has made a conclusion concerning the City Manager's employment agreement. III. BASIS OF RECOMMENDATION A. POLICY • The City Manager is given an evaluation by the City Council each year as part of the City Manager's contract. • As part of the evaluation, process, a review of the City Manager's compensation package is also performed. each year. 0412CityManagerSalary • As compensation comparisons, salaries of City Managers in comparable cities are considered, as is the base salary structure adjustments of other . City employees.. • The City Manager's current annual salary remains below the Stanton IV average. B. CRITICAL TIMING ISSUES • City Manager Devich's annual performance evaluation has previously, been scheduled to be conducted in January or early February of each year. C. FINANCIAL • The City Manager's base pay adjustment has historically been the same as those given to other City employee groups. • Other City employee groups were budgeted to receive a 2% base pay adjustment for 2011. • The City Manager has not received a merit salary increase since 2007. Other City employees are eligibleM1to receive either step or merit salary adjustments in addition to the pay structure.adjustment until they reach the top of their salary grade. D. LEGAL • The City Manager's contract with the City requires that an annual performance evaluation be conducted. E. ENVIRONMENTAL CONSIDERATIONS • None IV. ALTERNATIVE RECOMMENDATION(S~ • The City Council may defer the compensation portion of this review to a future meeting.. V. ATTACHMENTS • Resolution. VI. PRINCIPAL PARTIES EXPECTED AT MEETING • None cam- ~ ~l eU ~~5ec~- ~~a~ RESOLUTION NO. ~~~ ~~ ~ ~° - ~~ RESOLUTION AMENDING THE EMPLOYMENT AGREEMENT BETWEEN THE CITY OF RICHFIELD AND STEVEN L. DEVICH, CITY MANAGER -NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Richfield,. Minnesota as follows: 1. The following section of the Employment Agreement between the City of Richfield, Minnesota and Steven L. Devich, City Manager, dated February 2005 is amended as follows: Section 5. Salary. A. Employer agrees to increase the City Manager's total base annual salary of $138,315.00 (including $3,500 of deferred compensation annually) to $ ,effective January 1, 20;11, payable in installments at the time as other employees of the employer are paid. B. Beginning January 1, 2011, Employer will no longer make a contribution of any amount into the Employee's choice of a deferred compensation plan. 2. The salary amount of $138,315.00 reflects the correction of clerical errors that occurred in Resolution No. 10233, which should have reflected a change in base salary (including deferred compensation of $3,500) from $129,334.40 to $132,915.00, and in Resolution No. 10344, which should have reflected a change in base salary (including deferred compensation of $3,500) from $132,915.00 to $138,315.00. Approved by the City Council of the City of Richfield this 12th day of April 2011. Debbie Goettel, Mayor ATTEST: Nancy Gibbs, City Clerk