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HomeMy WebLinkAboutJuly 11, 1988OFFICIAL PROCEEDINGS COLUMBIA HEIGHTS CITY COUNCIL REGULAR COUNCIL MEETING JULY Il, 1988 The meeting was called to order by Mayor Hadtrath at 7:3o p.m.. 1. Roll Call Paulson, Petkoff, Carlson, Peterson, Hadtrath - present 2. Pledge of Allegiance 3. Consent Agenda The fol]owing items were adopted on the consent agenda: Minutes for Approval The Counci] approved the minutes of the Regular City Council Meeting of June 27th and the Special Meeting of June 30th as presented and there were no corrections. Conditional Use Permit - American Developers, Inc., 4849 Central Avenue American Developers, Inc. is requesting the conditional use permit approval to allow the operation of a 5,000 square foot daycare center at 4849 Central Avenue. The Counci) previously approved the Final P)an Unit Development for the site which provides for the construction of a 42,500 square foot shop- ping center on the property. The Counci) approved the conditional use permit conditioned upon the fo)- )owing items: 1. The proposed daycare operator be required to provide upon request of the City, an annual report confirming that acceptable levels of carbon monoxide as established by the Minnesota Pollution Control Agency exist in the area of the outside play area, 2. The applicant be required to post appropriate signage in the area of the service drive requiring all vehicles to turn off their engines whi)e making or receiving deliveries. The proposed daycare operator complies with the State of Minnesota licen- sing requirements. Site Plan Amendment/Conditional Use Permit - Mc Donald's Corporation, 4605 Central Avenue The Council approved the Site Plan Amendment and Conditional Use Permit for McDonald's Corporation at 4605 Central Avenue as there is not any change to the required off-street parking or increase in seating capacity. ~equest to Possess and Consume'Intoxicating .Liquor at Sullivan Lake Park The Council granted permission to Mr. Roger Gibeau of 815 49th Avenue to possess and consume intoxicating liquor at Sullivan Lake Park on August 5, 1988, in conjunction with the family gathering, however, such possession and consumption should not occur before 8:00 a.m. nor after 9:30 p.m. The City Manager noted that this permission by the Council is subject to concurrence by the Park Board. Regular Council Meeting July 11, 1988 page 2 Award of Bid for High Speed Copy Machine for City Hall The Council authorized the purchase of one Kodak Ektaprint High Speed Copier, Model Number 225S from Eastman Kodak Corporation in the net amount of $44,512, plus a monthly service contract of $660, based upon low, formal bid; and furthermore, the Mayor and City Manager were authorized to execute a contract for same. Acceptance of Proposal for Telecommunications System Consultant The Council approved the appropriation of $5,1OO from the General Fund Undesignated Fund Balance to the General Government Building Department, account #101-41940-3050. The Council authorized the Mayor and City Manager to enter into an agre- ement with International Telecommunication Consultants to provide tele- phone consulting services at a rate of $60 per hour, not to exceed $5,1OO, based upon proposals received, Municipal Project #8504 (S.A.P. 113-101-04, 37th Avenue Concrete and Repair) The Council authorized an agreement to provide engineering and construction administration for the City of St. Anthony on 37th Avenue at Stlnson Boulevard (St. Anthony S.A.P. 161-]05-02) and authorized the Mayor and City Manager to execute the Agreement. Award of Municipal Project #85~4 - 37th Avenue Concrete Repair Work The Council authorized the awarding of Municipal Project #8504 (Columbia Heights S.A.P. Il3-101-04) to Concrete Curb Company of Burnsville, Minnesota based upon their low formal bid of $224,229.60 and authorized the Mayor and City Manager to enter into an agreement for same. Schools and Conferences The Council approved the attendance of John Tiggas and Gall Maus of the Rec- reation Department at the Annual National Community Education Association Conference on November 28th to December 1, 1988 which wil.l be held in Orlando, Florida and a]so authorized that related expenses be reimbursed. Licenses The Council approved the license applications as presented upon payment of proper fees and waived the fees as indicated on the llst of applications. Payment of Bills The Council approved the payment of bills out of proper funds. 4. Approval of Consent A~enda Motion by Paulson, second by Petkoff to adopted the consent agenda as presented. Roll call: A)I ayes 5. Open Mike ~' representative of Rottlund Homes, Michael Burton, advised the Council that a purchaser of one of the Sulllvan Shores townhomes wishes to occupy the home on July 12th. Me is requesting a Certificate of Occupancy. Issuance of any Occupancy Certificates had been predicated on the installation of access roads and curb installation. He detailed when this work would be completed and noted that some of it had been delayed until the duplexes in the area had been removed. The City Manager referred to a letter from the Building Inspector regarding the work yet to be completed before the permits could be issued. Regular Council Meeting July ll, 1988 page 3 Mayor Hadtrath advised Mr. Burton this item will be referred to staff for response. 6. Ordinances and Resolutions a. Second Reading of Ordinance No. )165; Being an Ordinance Amending Ordinance No. 853, City Code of 1977, Pertaining to Fences Motion by Carlson, second by Paterson to waive the reading of the ordinance there being ample copies available to the public. Roll call: All ayes ORDINANCE NO. 1165 BEING AN ORDINANCE AMENDING ORDINANCE NO. 853, CITY CODE OF 1977, PERTAINING TO FENCES The City of Columbia Heights does ordain: Section 1: Section 6.403(3) of the City Code of 1977, passed June 21, 1977, which reads as follows, to wit: 6.403(3) A privacy fence may be constructed only if: (al All property owners within 100 feet of the proposed fence shall be given at least ten (10) days mailed notice of the public hearing before the Planning and Zoning Commission regarding the same. (bi All property owners abutting said fence present a written agreement consenting to the approval of the same. (c) The Planning and Zoning Commission approves at a public hearing the plans submitted by finding that a denial of such application would present an undue hardship on the applicant. (d) Any such fence to be constructed or maintained in the front yard of any corner lot will not obstruct vision from the adjacent streets of traffic approaching within thirty (30) feet as measured from the center of the adjacent intersection. The Building Official shall determine the maximum allowable height for fences on a corner lot in accordance with his personal observations and findings relating to visibility. (el Any such fence will not be more than 42 inches high if constructed or maintained: in any front yard or near the side lot line of the property upon which such fence is to be constructed; or at any point which lies in the front and to the side of any house buiidt on property adjacent to the property upon which such fence is to be constructed; or at any point which lies in front and to the side of any house on the lot upon which such fence is to be constructed. Is herewith amended to read as follows: Regular Council Meeting July ll, 1988 page 4 6. 403. (3) A privacy fence may be constructed only if: (al All property owners abutting said fence present a written agreement consenting to the approval of the same. (bi Any such fence to be constructed or maintained in the front yard of any corner lot will not obstruct vision from the adjacent streets of traffic approaching within thirty (30) feet as measured from the center of the'adjacent intersection. The Building Official shall determine the maximum allowable height for fences on a corner .lot in accordance with his personal observations and findings relating to visibility. (c) Any such fence will not be more than 42 inches if constructed or maintained as follows: 1. In any front yard or near the side lot line of the property upon which such fence is to be constructed. 2. At any point which lies in the front and to the side of any house built on property adjacent to the property upon which such fence is to be constructed. 3. At any point which lies in front and to the side of any house on the lot upon which such fence is to be const- ructed. Section 2: This Ordinance shall be in full force and effect from and after thirty (30) days after its passage. First reading: Second reading: Date of passage: June 27, 1988 July ll, 1988 July Il, 1~88 Offered by: Carlson Seconded by: Paterson Roll call: All ayes Jo-Anne Student, Council Secretary ~ayorr Dale V. Hadtrath b. Reading of Ordinance No. 1167; Relating to Emergency Water Conservation Motion by Paulson, second by Paterson to waive the reading of the ordinance there being ample copies available to the public. Roll call: All ayes ORDINANCE NO. 1167 BEING AN ORDINANCE AMENDING ORDINANCE NO. 853, CiTY CODE OF 1977, RELATING TO EMERGENCY WATER CONSERVATION WHEREAS, the City Charter of the City of Columbia Heights provides that an emergency ordinance may become effective immediately upon its passage or at such later date as is fixed within such ordinance, and WHEREAS, a great drought now exists within the State of Minnesota, and Regular Council Meeting July ll, 1988 page 5 WHEREAS, the shortage of water within the State of Minnesota has reached crisis proportions, and WHEREAS, the City of Columbia Heights purchases water from the City of Minneapolis and is obligated by agreement to follow certain contractual guidelines relating to the preservation of water, and WHEREAS, a shortage of water could substantially endanger the sanitation of the residents of the City and could threaten the ability of the City to deal with fire emergencies, NOW, THEREFORE, the City of Columbia Heights does ordain: Section l: Section 8.501(2) of the City Code of 1977, passed June 21, 1977, which reads as follows, to wit: 8.501 (2) No person shall use or withdraw water for the purpose of sprinkling, watering or irrigating of lawns, grass, ground covers or gardens, except as follows: (al Watering of mature sod and gardens at any site with an odd-numbered address will be permitted'on odd-numbered dates, (b) Watering of mature sod and gardens at any site with an even-numbered address will be permitted on even-numbered dates, (c) Watering of new sod or trees planted within the last five (5) years or having a diameter of less than three inches will be permitted at any time. Is herewith amended to read as follows: 8.501(2) No person shall use or withdraw water for the following purposes: (a) Sprinkling, watering or irrigating of lawns, grass, ground cover, plants, vines, vegetables flowers or any other vegetation (except trees, gardens, perennials or golf greens), (b) Washing of automobiles, trucks, trailers, trailer-houses, railroad cars, or any other type of mobile equipment (other than at a commercial car wash), (c) Washing of sidewalks, driveways, filling station aprons, porches and other outdoor services, (d) Washing of the outside of build'ings, (e) Operating of any ornamental fountains or other structures making similar use of water. Regular Council Meeting July 11, 1988 page 6 Section 2: Section 8.501(3) which reads as follows, to wit: 8.50~ (3) No person, other than a commercial car wash, shall wash a private vehicle except those persons residing in odd-numbered residences may wash their private vehicles on odd-numbered dates and persons with even-numbered residences may wash their private vehicles on even-numbered dates. No person shall knowingly allow defective plumbing to remain out of repair which allows the escape of water. Is herewith amended to read as follows: 8.5o2 (3) No person shall knowlingly allow defective plumbing to remain out of repair which allows the escape of water. Section 3: Section 8.502(6) which reads as follows, to wit: 8. 501 (6) The City Manager shall have the authority to terminate enforcement of this ordinance at such time as he determines that the shortage of water no longer exists. Is herewith amended to read as follows: 8.50~ (6) The City Manager shall have the authority to terminate enforcement of some or all of the provisions of this ordinance at such time as he determines that the supply of water is adequate to allow some or all of the uses of water prohibited by this section. Section 4: This ordinance is passed as an emergency measure, and the Council does, by the vote by which this ordinance is passed, hereby declare that an emergency exists, which makes it imperative that this ordinance shall become effective from and after July 12, 1988 in order that the public health, welfare and safety might most effectively be protected. Date of Passage: July 11, 1988 Offered by: Paulson Seconded by: Peterson Roll call: All ayes Jo-Anne Student, Council Secretary Hayor Oale V. Hadtrath 7. Communications a. Lotsplit - 1032 h3rd Avenue, Stanley Tomczyk - Resolution No. 88-q6 Motion by Petkoff, second by Paulson to waive the reading of the resolution there being ample copies available to the public. Roll call: AIl ayes RESOLUTION NO. 88-46 SUBDIVISION REQUEST CITY OF COLUMBIA HEIGHTS 590 40th AVENUE N.E. Fee: $10.00 Date Pdt 6-14-88 Receipt: 18206 Regular Council Meeting July ll, 1988 page 7 I, Stanley Tomczyk, hereby request a split of PIN 36 30 24 23 OO19 legally described as: The west ½ of Lot 11, Block 3, Reservoir Hills, Anoka County, Minnesota, except the north 5 feet and subject to a permanent easement for drainage purposes over, under, and across the west 5 feet and subject to road and utility easement over the south 30 feet. THE DESCRIPTION HENCEFORTH TO BE: 1. The west 55 feet of the north 150 feet of Lot 11, Block 3, Reservoir Hills, Anoke County, Minnesota except the north 5 feet and subject to a permanent easement for drainage purposes, over, under and across the west 5 feet. 2. The west 55 feet of Lot 11, Block 3, Reservoir Hills, Anoka County, Minnesota except the north 150 feet and except the south 30 feet for street. Subject to a permanent easement for drainage purposes over, under and across the west 5 feet. Be it further resolved that special assessments of record in the office of the City of Columbia Heights as of this day, against the above described property, in the amount of $ - 0 - be paid. Any pending or future assessments will be levied according to the new split as approved this day. Any lotsplit given approval shall become invalid if the resolution, motion or other Council action approving the said lotsplit is not filed with the County Auditor within one (1) year of the date of the Council action. PLANNING AND ZONING DEPARTMENT ACTION: Approved This 5th day of July, ]988. Offered by: Marko Seconded by: Ryan Roll call: All ayes LeRoy Goranson Zoning Officer CITY COUNCIL ACTION: Adopted This llth day of July, 1988. Stanley Tomczyk Signature of Owner, Notarized 1032 43rd Avenue N.E. Owner's Address Telephone No. 788-0735 Subscribed and sworn to before me this 14th day of June, 1988. Elizabeth A. Simons Notary Public Offered by: Petkoff Seconded by: Paulson Roll call: All ayes Dale V. Hadtrath, Mayor Jo-Anne Student, Council Secretary Regular Council Meeting July 11, 1988 page 8 b. Lotsplit Approval and Permission to Excavate 42nd Avenue for the Installation of Water and Sewer Service at ll29 42nd Avenue The City Manager reviewed the history of this )otsplit request. It had been requested previously and approved by the Planning and Zoning Commission on November 6, )984. The approved lotsplit resolution had not been filed with the County Auditor's office within the allotted tlme of one year therefore it had not been recorded. When 42nd Avenue had been resurfaced approximately two years ago the property owners were asked if they had any intentions of putting in water and sewer services to the lot. They had responded at that time it was not their plan to put in this service. It is the policy of the Council not to allow any excavating in a newly-surfaced street for five years after the new surface is installed. Since that time the property owners had decided to sell a lot on 42nd Avenue. Councilmember Paterson suggested that a cash bond could be posted by the property owners to guarantee the excavation. The City Engineer noted that the City is responsible for the inspections of the excavation. Motion by Peterson, second by Carlson to approve the street excavation at l)29 42nd Avenue for the purpose of installing a water and sewer service at this address upon receipt of a deposit of $1,000 to be held in escrow by the City for a period of three years. Said deposit will, at the end of the three year period, be refunded together with interest less any money expended by the City to repair the street excavation approved herein. Roll call: All ayes Motion by Peterson, second by Carlson to waive the reading of the resolution there being ample copies available to the public. Roll call: All ayes RESOLUTION NO. 88-47 SUBDIVISION REQUEST CITY OF COLUMBIA HEIGHTS 590 4OTH AVENUE N.E. I, George Kordiak, Jr. and Dorothy Kordiak hereby request a split of PIN 36 30 24 23 0079 legally described as: Lot 42, Block 3, Reservoir Hills, Anoka County, Minnesota, except the south 5 feet, except the north 165 feet thereof. Subject to easement to the City of Columbia Heights for storm sewer 7-14-70 over south 10 feet of north 175 feet. THE DESCRIPTION HENCEFORTH TO BE: 1. Lot 42, Block 3, Reservoir Hills, Anoka County, Minnesota, except the north 165 feet thereof, except the east 50 feet thereof, except the south 5 feet. Subject to easement to the City of Columbla Heights for storm sewer 7-14-70 over south 10 feet of north 175 feet of Lot 42. 2. The east 50 feet of Lot 42, Block 3, Reservoir Hills, Anoka County, Minnesota, except the south 5 feet, except the north 165 feet thereof. Subject to easement to the City of Columbia Heights for storm sewer 7-14-70 over south 10 feet of north 175 feet of Lot 42. Regular Council Meeting July 11, 1988 page 9 This resolution shall be in full force and effect from and after the certification by the Columbia Heights Building Official that the garage located on the building line has been re)ocated to meet the minimum side yard requirements in an R-2 District. Be it further resolved that special assessments of record in the office of the City of Columbia Heights as of this day, against the above des- cribed property, in the amount of $5,680.40 be paid. Any pending or future assessments will be levied according to the new split as approved this day. Any lotsplit given approval shall become invalid if the resolution, motion or other Council action approving the said lotsplit is not filed with the County Auditor within one (1) year of the date of the Council action. CITY COUNCIL ACTION: Adopted This llth day of July, 1988. Offered by: Peterson Seconded by: Carlson Roll call: All ayes Dorothy Kordiak George Kordiak, Jr. Signatures of Owners, Notarized 1129 42nd Avenue N.E. Owners' Address Telephone No. 788-3882 Subscribed and sworn to before me this 13th day of July, 1988. Bonnie A. Jewett Notary Public Mayor Dale V. Hadtrath Jo-Anne Student, Council Secretary Fee: $10.00 Date Paid: 6-30-88 Receipt No. 18280 8. Old Business Finding of Fact Regarding City's Assessment of Penalities Against Cable TV North Central The City Manager reviewed the situation with the cable company. The rep- resentative of the cable company reviewed the company's proposal. The City Manager requested if the Council must act on the proposal submitted by the cable company and the City's cable counsel replied it does not. Motion by Paulson, second by Petkoff to waive the reading of the resolution there being ample copies available to the public. Roll call: All ayes RESOLUTION NO. 88-48 A RESOLUTION OF FINDINGS OF FACT, CONCLUSIONS, AND ORDER OF THE CITY OF COLUMBIA HEIGHTS, MINNESOTA REAFFIRMING THE FINDING OF GROUP W CABLE OF COLUMBIA HEIGHTS/HILLTOP, INC. IN VIOLATION OF THE CABLE COMMUNICATIONS CODE Regular Council Meeting July ll, 1988 page l0 WHEREAS, the City of Columbia Heights, Minnesota (hereinafter the "City") is a municipal corporation under the laws of the State of Minnesota and has the authority to award, administer and enforce a non-exclusive cable television franchise; and WHEREAS, the City has assessed certain penalities against Group W Cable of Columbia Heights/Hilltop, Inc. d/b/a/ Cable TV North Central (herein- after "Group W" or "the company"); and WHEREAS, under the Cable Communications Code (hereinafter the "Code") whenever a penalty has been assessed, Group W may notify the City that there is a dispute as to whether a violation or failure has, in fact, occurred; and WHEREAS, on April 20, 1988 Group W advised the City that there is a dispute as to whether Group W violated the Code; and WHEREAS, the City heard Group W's dispute at its meeting of Monday, June 13, 1988; and WHEREAS, the Code requires that the Council decision be supplemented with written findings of fact; and WHEREAS, the Code states at Section 11.117(4) that in case of any dispute or question as to the meaning, interpretation or application of any term, provision or condition of the Code, the City Council, in its sole discretion, shall resolve such dispute or question. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Columbia Heights, Minnesota does hereby make the following Findings of Fact, Conclusions and Orders reaffirming its findings of Group W to be in violation of the Code: FINDINGS OF FACT l. On May 8, 1981 Teleprompter of Columbia Heights/Hilltop submitted a three volume proposal to construct, operate and maintain a cable television system for the Cities of Columbia Heights and Hilltop. The proposal specified at Volume II, Form I that "Jerrold" equipment would be used at the company's headend, or that location where the television signals originate, for distribution to the subscribers. 2. On or about December 9, 1981, the City adopted a Cable Television Franchise Ordinance, ("Code"), awarding a cable television fran- chise to Teleprompter of Columbia Helghts/Hilltop, Inc.. In adopting the Code the Council made certain Findings. Two of those F|nding~ were as follows: a. The Grantee's techlnical ability, financial condition, legal qualifications and character were considered and approved in a full public hearing affording reasonable notice and reason- able opportunity to be heard; and b. The Grantee's plans for constructing and operating the system were considered and found to be adequate and feasible in a full Regular Council Meeting July 11, 1988 page ll public hearing affording reasonable notice and reasonable op- portunity to be heard. 3. The Code specifies at Section 11.118(3) that the company shall provide all services and offerings specifically set forth in the company's proposal to provide cable televlslon service within the City .... and, by its acceptance of the franchise, the company specifically agreed to be bound by the company's proposal, including all promises, offers, representations and inducements contained therein. The Code further specifies that the failure to refer to the company's proposal in any specific provision of the Code is not to be a limitation on the obligation of the company to fully comply with the proposal that all promises, offers, representations and inducements contained in the company's proposal were freely and voluntarily made to the City by the company. 4. In September, 1984 the City commenced to undertake a performance audit of Group W, the lawfull succession to Teleprompter of Columbia Heights/Hilltop, Inc... This performance audit was designed to compare the System then being operated in the City to that System proposed in the company's three (3) volume proposal. 5. The performance audit'included an on-site inspection by an indepen- dent engineer, Mr. John Gort, on or about November 14th and 15th, 1984. Based on this on-site inspection a written report was pre- pared where in Mr. Gort noted: In the original application submitted by Teleprompter, Jerrold Headend signal processing equipment is specified. Since the application was submitted, however, the .cable company has used Phase-Com equipment...it is apparent that the De-Mod/Re-Mod tech- nique of signal processing is degrading the "Off-Air" and "l/Net" signals within the Headend itself. The Phase-Com modulators which handle video only...degrade the video signal in the modulation and filtering process. 6. In his conclusion, Mr. Gort offered the following recommendation; The Phase-Com modulators degrade pictures by an increase in back- ground noise, loss of color elements and fine detail.., in view of the degradation of the signals in the processing equipment it is recommended that the headend equipment be changed from Phase-Com to a "Hedrodyne" signal processor .... 7. Group W responded to the Issue raised in the performance audit through a letter dated February 20, 1985 from Mark Matthews, then General Manager of Group W. In his-letter, Mr. Matthews noted that the consultant recommended that the Headend equipment be changed. Mr. Matthews stated that the company would remove the Phase-Com headend, with the exception of the institutional network channels, and transport the satellite and off-air signals to Columbia Heights from the Hetrodyne headend currently used in Roseville. 8. Upon receipt of the response from Group W negotiations transpired Regular Council Meeting July 11, 1988 page 12 between the City and Group W. In a letter dated November 13, 1985, to Mr. Bob Bocwinski, Mark Matthews set forth a description of the feed-forward interconnect from the Roseville headend to Col- umbia Heights. In this letter, attached hereto as Exhibit 1, Mr. Matthews stated the interconnect would be a feed-forward FM trunk system. 9. On May 27, 1986 the City Council passed and adopted Ordinance No. 1125 (hereinafter the "Ordinance") which amended the Code and granted Group W certain modifications. Section 1 of that Ordinance amended Article 11.105(1) of the Code by stating as follows: The Grantee shall provide a system serviced by a headend in the City oF Roseville feeding a single-cable subscriber network and a separate midsplit institutional network. Both networks shall utilize 400 MHz equipment fully activated for two-way transmission. The extension from the Headend in Roseville shall utilize feed- forward FM technology .... 10. Section 14 of the Ordinance amended Article 11.117(10) of the Code by setting forth a process for verifying the completion of con- struction of the system. Under this Section the following elements were necessary for the completion of construction: a. Verification of Headend equipment and System extension equipment as required therein. b. Satisfactory test results using the technical standards at various or up to twelve (12) widely separated subscriber locations selected by the independent engineer and using certain specified tests. c. Verification that the emergency alert system is working to the reasonable satisfaction of the City. d. Compliance with all applicable codes and standards. 11. The Ordinance required that Group W accept the amendment in writing before the Ordinance became effective. In a document dated May 9, 1986 Group W accepted the Ordinance and made certain representations and warranties to the City. Group W represented and warranted that it had carefully read the terms and conditions of the Ordinance and accepted without reservation of the obligations imposed by the terms and conditions of the Ordinance. In addition, Group W represented and warranted that the Ordinance and the acceptance were valid, binding and legally enforceable against it in accordance with the terms and conditions contained therein. 12. On or about March 4, 1987 Group W advised the City that It had com- pleted construction of the System and the System was ready for in- spection by an independent engineer if deemed necessary by the City. 13. On Tuesday, May 26, Jane Bremer, Community Affairs Consultant for Regular Council Meeting July ll, 1988 page 13 Group W advised Gary Matz, Cable Television Consultant for the City, that Group W had recently discovered that the extension from Roseville did not utilize the FM technology required by the Ordinance but rather AM technology was used. 14. The City retained Mr. John Gort to once again conduct an inspection of the cable television system in light of the use of the extension from Roseville. On May 27, 1987 a meeting was held with representatives of the City and Group W. Those in attendance included, but were not necessarily limited to, Jane Bremer, John Eddy, dohn Gort, Bob Boc- winski, and Gary Matz. Group W once again stated that the extension from Roseville was constructed with AM technology as opposed to the required FM technology. 15. On or about August 20, 1987 the Columbia Heights/Hilltop CATV Advisory Commission requested that Mr. John Gott answer certain questions regarding the discrepancy between the extension equipment from Roseville. 16. In a letter dated August 31, 1987 and supplemented by an Affidavit dated February 19, 1988, attached hereto as Exhibit 2, Mr. Gott stated that, in his professional judgement, FM transmission is inherently superior to AM transmission for several reasons. The reasons include, but are not necessarily limited to, the followlng: a. The transmission of an FM carrier as compared to an AM carrier over the same number of amplifiers has a superior carrier to noise ratio. This means that noisy or poor quality video pic- ture will have less degradation (noise added to the picture by the amplifiers the picture is passing through) than if the carrier was AM. b. FM transmission is "transplant" which means that the FM trans- mission neither causes nor adds any distortion to the video being carried. c. FM transmission, unlike AM transmission, Is not subject to outside interference that may enter into the cable television distribution system. 17. Mr. John Gott also stated in the letter and Affidavit referenced above that, based upon his experience and in his professional judge- ment, Group W achieved a very substantial cost savings by construct- ing the extension with AM technology as opposed to.FH technology. 18. At its meeting of Thursday, December 17, 1987 the Columbia Heights/ Hilltop CATV Advisory Commission discussed extensively the dis- crepancy between the AH/FM extension. The Commission made the fol- lowing recommendation: That the Cable Commlsslon state that the cable company has not completed construction on the cable system as required by the Franchise Agreement and that the cable company is therefore in Regular Council Meeting July 11, 1988 page 14 violation of the Franchise Agreement. The Cable Con~ission requests the cable company to submit a written request to the Columbia Heights City Council via the City Manager regarding the posslble ordinance change to rectify this situation. 19. In a letter dated January 8, 1988 John R. Eddy, Chief Operating Officer of Cable TV North Central, and Jane E. 'Bremer, requested that the City Council amend the Code to read "AM" as opposed to "FH". The letter further stated the representatives of the com- pany would be in attendance at the January 11, 1988 meeting of the City Council to answer any questions. 20. At the City Council meeting of January 11, 1988, the above-described letter from Group W was acknowledged and the Council noted that the purpose of the letter did not adequately address economic Issues. The Council further authorized the City Manager to proceed with action leading to the imposition of penalty fees against Group W for non-compliance provided under the Code; however, such action would not be taken if the Group W submitted to the City Manager by January 15, 1988 a proposal for consideration of the Council, or its designee, to ameliorate or eliminate the sources of non- compliance .... 21. In a letter dated January 13, 1988 and.attached hereto as Exhibit 3, Group W was given notice of the vlolation and the fact that the City would assess penalties upon the Letter of Credit posted by. Group W. 22. On Wednesday, January 13, 1988 representatives of the City met with Ms. Jane Bremer, representative of Group W, to hand-deliver the above-described letter and to verbally inform her that no action would be taken against the Letter of Credit if Group W submitted by January 15, 1988 a proposal to ameliorate or elimi- nate the source of non-compliance. 23. On January 15, 1988 both Mr. Eddy and Ms. Bremer submitted a letter once again proposing that the Code be amended to allow the use of AM technology for the interconnect system. At the City Council meeting of January 25, 1988 the Council autho- rized the City Manager to notify the bond company of a pending claim based on the Code violation and authorized the City Manager to write a letter to Mr. Gustav Hauser, Chairman of North Central Cable Communications Corporation, the parent of Group W, to advise him that the Council believed that Group W had not been acting in good faith and its displeasure with the company's apparent lack of cooperation. 25. On or about January 25, 1988 the City Manager advised the Great American Insurance Company, the company holding the performance bond, that the City had found Group W in vio- lation of the Code due to the company's failure to construct the cable televislon system as required. Regular Council Meeting July ll, 1988 page 15 26. On or about February 11, 1988 the City Manager submitted a claim to the Great American Insurance Company against the performance bond provided by the Group W. 27. At the City Council meeting of March 28, 1988, the City Council directed the City Manager to direct a claim to either the First Natlonal Bank of Boston or First Bank of Boston in the amount to be de~rmined by the City's cable counsel, against the Letter of Credit. 28. On or about April 7, 1988 the City Manager submitted a draft to the Bank of Boston for the purposes of making a claim in the amount of $15,800 against the Letter of Credit provided by Group W. 29. On April 20, 1988 Mr. James C. Erickson, Esq., on behalf of Group W, advised the City that there is no dispute as to whether Group W had violated the Code and that the City has no right to assess penalities against Group W. A copy of the letter from Mr. Erickson is attached as Exhibit 4. 30. The City Council heard the dispute of Group W at its meeting on Monday, June 13, 1988 at which time representatives of Group W were afforded the opportunity to be heard and presented evidence. CONCLUSIONS Based on the foregoing, the City Council of Columbia Heights, does hereby move the following conclusions: !. The action of the City Council on Monday, January 11, 1988 was sufficient and adequate to find Group W in non-compliance with the Code and commence the non-compliance proceedings under Section 11.113(5)(D) et. seq. Specifically, Section 11.113(5) (b) does not require written findings of fact. 2. The letter of January 13, 1988 from Mt. Gary Matz to Mr. John Eddy was sufficient and adequate written notice informing Group W of the violation and, accordingly, satisfies the requirements of Section 11.113(5)(D) of the Code. 3. The proposal submitted by Group W on January 15, 1988 and in response to the City Council action on January 11, 1988 did not constitute a good faith proposal since that proposal had been previously rejected by the City Council on January 11, 1988. Accordingly, the proposal of January 15, 1988 did not vitiate the notice of January 13, 1988. 4. Under Section 11.117(10) the City had ninety (90) days from notice by Group W to determine whether all construction, upgrading and adjustments contemplated by the Ordinance were completed. The Regular Council Meeting July Il, 1988 page 16 City discovered within the requisite time period the failure to construct the extension from Roseville with FM technology. Accordingly, based upon this non-compliance being discovered in a timely manner and there being no further action the City could have taken at that time, the System cannot, as a matter of law, be deemed completed. 5. The City has the authority under local, state and federal law to enforce the requirment that the extension from Roseville be constructed with FM technology. ORDER Based on the foregoing the City Council does hereby Order the following: 1. That the City Manager continue to assess penalities in the amount of $200 per day against the Letter of Credit posted by Group W commencing from the day following the last draw, as determined by the City Manager, and continuing until the violation has been corrected or a settlement has been approved by the City Council. 2. That Group W replace the Letter of Credit as required under the Code at Section 11.113(5)(G) by July 26, 1988. 3. That in the event the Letter of Credit is not replaced by July 26, 1988 the City Manager is authorized to impose penalities in the amount of $50 per day pursuant to Section 11.113(5)(C)(3) commencing on July 27, 1988. 4. That the City Manager shall provide a copy of this executed Resolution to an authorized representative of Group W. Passed this llth day of July, 1988. Offered by: Petkoff Seconded by: Paulson Roll call: All ayes Mayor Dale V. Hadtrath Jo-Anne Student, Council Secretary New Business a. Huset Park Improvements The City Manager reviewed the proposals for Huset Park improvements. It was noted that the Pubtic Works Director and members of the City staff had been meeting with an ad-hoc committee regarding the proposals under con- sideration. Property owners whose properties are near Huset Park expressed concerns re- garding the proposals. It was suggested they be advised of any of the up- coming meetings of the ad-hoc committee and their imput would be welcomed. Regular Council Meeting July 11, 1988 page 17 Public hearings were also suggested for advising residents about the project. Councilmember Carlson felt more information should be gotten before any Council approval is given to any portion of the project. Motion by Carlson to table this matter untll after publlc hearings are held. Motion dies for lack of a second. Council member Petkoff agreed that more specific Information is needed but recognized that some Council action was needed to initiate compiling that information. Notion by Hadtrath, second by Petkoff to establish the Huset Park Baseball Facilities improvements as a construction project to be undertaken by City staff during the 1988-1989 construction seasons, and furthermore, that this project shall be a priority project and the City I~anager is hereby authorized to seek contracts with consultants for the purpose of undertaking construction inspection of other ccu~structlon projects presently underway_i~the City. Roll call: Petkoff, C~~Peterson, Hadtrath - aye I1~*~ nay Motion by Hadtrath, second by Petkoff to authorize the City Attorney to prepare appropriate pledge agreements with various civic organizations for the purpose of funding the Huset Park Facilities improvements; and furthermore, to authorize the Mayor and City Manager to execute such pledge agreements. Roll call: All ayes Motion by Petkoff, second by Hadtrath to authorize the City Manager to sell, salvage, or raze the Bandshel! presently located at Huset Park which will be replaced with a portable style stage to meet with the approval of the Park Board and the Recreation Commission and that the costs be included in the project costs. Roll call: All ayes b. 41st Avenue Project/Alley Project, North of Fairway Drive & Forest Drive The Public Works Director advised the Council he has received a request from a resident on 41st Avenue to have his driveway increased in size and felt the City should pay the costs. He presently has a single driveway and needs a double driveway to accommodate the parking of his cars. The Council did not authorize this expenditure and felt that it should be paid by the prooerty owne r. Regarding the alley project the Public Works Director has been contacted by some of the property owners on this alley requesting that some of the concrete panels in the alley be replaced, not filled with crackfilling material. He noted that these panels do not meet the criteria for replacement and if the replacement were done the costs ~ould increase for all of the affected pro- perty owners. Councilmember Petkoff requested that all of the property owners on this alley be contacted regarding their opinion on this matter. 10. Reports a. Report of the City Manager The City Ranager's report was submitted in written form and some of the Items in the report were brlefly discussed. The City Nanager introduced Fern Kohler who was a recent appointment to the Human Services Commission. Regular Council Meeting July 11, 1988 page 18 I The City Manager reminded the Council of a Northern Suburban Mayors' Association Meeting on Wednesday, August 24th. He noted that all member city's council- members are being invited to this meeting which is being held at the Brooklyn Center Community Center. A council work session was scheduled for Monday, July 18th at 7:30 p.m.. b. Report of the City Attorney The City Attorney advised the Council of the lawsuit filed against the City for unfair labor practices and referred to the material distributed to the Council at the meeting. Adjournment Motion by Paulson, second by Carlson to adjourn the meeting at 10:25 p.m.. Roll ca1]: All ayes ,, l~o-Anne Student, Co'nc Secretar~ May6r Dale V. Hadtrath Amendment to Minutes of the ~gu]ar Council Meetin9 of July Il, 1988: Motion by Petkoff, second by Carlson to accept the amendment as follows: The City Manager advised the Council he appointed Mr. Gary Gorman to the position of a full time firefighter effective July 12, 1988 and Mr. Lance Sanetra to the position of full time f~refighter effective July 19, 1988 at the entry rate for a recruit firefighter under the City's contract with the International Association of Firefighters. Roll call: All ayes