The URL can be used to link to this page

Home My WebLink AboutApril 22, 2002OFFICIAL PROCEEDINGS CITY OF COLUMBIA HEIGHTS REGULARD CITY COUNCIL MEETING APRIL 22, 2002 The following are the minutes for the regular meeting of the City Council held at 7:00 p.m. on Monday, April 22, 2002 in the City Council Chambers, City Hall, 590 40th Avenue N.E., Columbia Heights, Minnesota. Malcolm Watson, resident and past City Manager, gave the invocation. CALL TO ORDER/ROLL CALL Present: Mayor Peterson, Councilmember Szurek, Councilmember Wyckoff, Councilmember Williams, and Councilmember Nawrocki PLEDGE OF ALLEGIANCE ADDITIONS/DELETIONS TO MEETING AGENDA Peterson added making an appointment to the Pofice and Fire Civil Service Commission. Walt Fehst, City Manager, indicated that there are interviews set for the Assistant Fire Chief position on Saturday, April 27th, and with two current openings on the commission there is need for at least one appointment prior to the interviews. Wyckoff stated that Nawrocki, Peterson and herself were at the interviews and that only these three Councilmembers should vote on this one appointment. Fehst stated that this is an appointment by the Mayor. Peterson asked Szurek and Williams if they were comfortable making a decision at this time. Szurek and Williams stated they wouM be willing to make a recommendation. Peterson placed this as agenda item 7C Other Business. PROCLAMATIONS, PRESENTATIONS, RECOGNITIONS AND GUESTS Proclamations - Read by Mayor Peterson MN Safe and Sober May Mobilization in the City of Columbia Heights - May 24 to June 4, 2002 Chief Tom dohnson stated he was pleased to accept the proclamation with its' intent being to increase the use of seatbelts. The Police Department will be tracking seatbelt usage, trying to increase usage, and assist with programs at the High School to encourage usage. Johnson stated this is a statewide effort. Police Week - May 12 to 18. 2000 Chief Johnson stated this proclamation has a special meaning because in 1977 we lost Officer Ramsdell. He stated that on May .5th we will host an ecumenical service at First Lutheran Church at 1:00 p.m., where officers and survivors will come to honor those who have given their lives in the line of duty. Alcohol Awareness Week- May 6 to May 10, 2002 Columbia Heights' High School students' Emily Erickson, President of the Key Club; Juhe Prior, l/ice-President of the Junior Class; and Mindy Beal, Junior Class President accepted and thanked the City Council for this proclamation. Chief Johnson stated there would be a mock alcohol related accident at the high school again this year, with the County Coroner participating. He complimented students for their efforts' and thanked Fire Chief Thompson for the Fire Department's cooperation. 2002 Arbor Day and Arbor Month Proclamation Lauren McClanahan, Pubfic Works' Superintendent and City Forrester, accepted the Arbor Day proclamation and stated that this is the tenth year Columbia Heights' has received the Tree City USA award Dm Lund, Park Foreman, indicated that the 2002 Arbor Day Celebration would be on Friday, April 26, l : 30 p. m. at LaBelle Park with the planting of two purple Ash trees. City Council Minutes April 22, 2002 Page 2 of 23 2002 National Public Works Week McClanahan accepted the proclamation. He stated there would be an open house at the public work; building on May 22n~, from 4:O0 p.m. to 7:O0 p.m. and invited the community to attend Fehst stated that other City Departments, City Board; and Commissions, and our Sister City committee would be present to provide information. 2002 Mayor's Prayer Breakfast Mayor Peterson explained the event and invited anyone interested to call City Hall, or himself, for further information. Nawrocki stated that Sunday, April 28th, from 2.'00 to 5.'OO p. m. is the Annual OM 7~mers Day at Murzyn Hall, which is a social gathering of past and present resident,'. Fehst referred to the State Pofice award; ceremony hem in St. Cloud last Wednesday, and spoke of recognition given to Columbia Height; resident Ellen Thompson who assisted our officer in his time of need Fehst described the 60th Anniversary celebration of the United Methodist Church. Presentations Peterson indicated that Jerry Foss, Booster Club Board Member, was not able to attend the meeting, and would be placed on the May 15th agenda. Introduction of New Employees - none Recognition - none CONSENT AGENDA Fehst corrected a previous comment by stating that Pofice and Fire Civil Service Commissioners must five within the city limits, and be appointed by Council. Residence is not necessary for other commissions, if agreed by the majority of the Council. A) Motion by Nawrocki, second by Szurek, to approve the Consent Agenda items, not including #2, and #5, as follows: 1) Minutes for Approval a) Motion to approve the minutes of the April 1, 2002, Board of Appeals and Equalization meeting as presented. b) Motion to approve the minutes of the Continued April 1, 2002, Board of Appeals and Equalization meeting held on April 8, 2002 as presented. c) Motion to approve the minutes of the April 8, 2002, regular City Council meeting as presented. 2) Establish Work Session Meeting Dates for Monday, May 6, 2002 and Monday May 20, 2002, at 7:00 p.m. City Hall Conference Room 1 - Removed for discussion. Fehst listed May 6 work session items: · Results of last year's audit · Fire works bid · Discussion of the Central Avenue bids. Fehst stated items for the May 20th meeting wouM be listed at the May 13th City Council meeting. City Council Minutes April 22, 2002 Page 3 of 23 3) Authorize Purchase of T-Shirts and Youth Sports Equipment Motion to award the purchase oft-shirts to Ideal Advertising, 8070 University Ave., Fridley, MN based upon their low, qualified, responsible bid in the amount of $5,209.00 with funds to be appropriated from 881-45001-2170; and furthermore to authorize the Mayor and City Manager to enter into an agreement for the same. Motion to aware the purchase of youth sports equipment to Dave's Sport Shop, 1001 East Moore Lake Drive, Fridley, MN based upon their low, qualified, responsible bid in the amount of $6,882.60 with funds to be appropriated from account 881-45001-2170; and furthermore to authorize the Mayor and City Manager to enter into an agreement for the same. 4) Authorize fireworks display and to seek bids for 2002 Jamboree Fireworks Motion to authorize fireworks on Friday, June 28, 2002 in conjunction with the Jamboree activities and to seek bids for a $6,000 fireworks display with $3,000 appropriated from fund 101-45050- 4378. Fehst stated that the fireworks display was recommended for Friday night, instead of Saturday night, because the Lions Club and SA CCC are organizing a possible concert from 6:O0 p.m. to 1 O: O0 p. m. on Saturday night. 5) Approve Bartending Contract for Liquor Services at John P. Murzvn Hall - Removed for discussion Fehst stated this would put in writing the agreement that has been in place for years, with the Lions Club, for the concessions at Murzyn Hall. 6) Adopt Resolution No. 2002-30, being an Order to Cease and Desist Motion to waive the reading of Resolution No. 2002-30, there being ample copies available to the public. Motion to adopt Resolution No. 2002-30, being an Order to Cease and Desist. Nawrocki explained that A T&TBroadband has attempted to propose arbitration to efiminate certain rights, tike class action lawsuits. The Telecommunications Commission has recommend to forward a Cease and Desist order to them. Fehst stated that this would have meant that anyone continuing service would agree to binding arbitration. Nawrocki stated he has the 2001 annual report available for review. RESOLUTION NO. 2002-30 BEING AN ORDER TO CEASE AND DESIST WHEREAS, the City of Columbia Heights, Minnesota (the "City") adopted a cable television franchise on June 25, 1990, setting forth the terms and conditions under which Teleprompter of Columbia Heights/Hill-top, Inc. was authorized to construct, operate and maintain its cable system in the City (the "Franchise"); and WHEREAS, as a result of numerous transfers of ownership and control, the Franchise is currently held by MediaOne North Central Communications Corp., d/b/a AT&T Broadband; and WHEREAS, AT&T Broadband must comply with the terms of the Franchise; and WHEREAS, in accordance with § 11.117(8) of the Franchise, the City supervises and enforces the Franchise on a day-to-day basis. NOW, THEREFORE, the following is resolved: Findings 1. AT&T Broadband sent a new Customer Service Agreement ("CSA") to subscribers in the City. 2. The new CSA contains several modifications to the older agreement and was sent out as a "bill stuffer" to City Council Minutes April 22, 2002 Page 4 of 23 subscribers in the City. 3. The new CSA unilaterally attempts to impose a mandatory arbitration provision governed by the Federal Arbitration Act (the "Arbitration Clause"). 4. The Arbitration Clause, among other things, purports to eliminate certain rights otherwise enjoyed by subscribers, most importantly the right to damages other than actual damages and the right to bring a class action lawsuit. 5. The new CSA states that acceptance of its terms, including the Arbitration Clause, will be presumed where there is continued use of service and that, if a subscriber finds the terms of the new CSA unacceptable, the only recourse available to the subscriber is to cancel service. 6. The terms of the CSA were not negotiable and were offered on a "take it or leave it" basis. 7. Pursuant to the terms of the Franchise, AT&T Broadband is required to comply with all laws affecting the cable system. 8. Pursuant to the terms of the Franchise, AT&T Broadband may be assessed a penalty of $50.00 per day for failing to comply with any Franchise provision. Conclusions The CSA is invalid for the following reasons: (a) subscribers did not knowingly, voluntarily, and intelligently waive their Constitutional right to a jury trial; and (b) the contract is unconscionable under Minnesota contract law as a contract of adhesion. Order Based on the foregoing Findings and Conclusions, the City Council for the City of Columbia Heights hereby enters the following orders: 1. AT&T Broadband is hereby ordered to immediately cease and desist the implementation, imposition and enforcement of the Arbitration Clause in the new CSA. 2. AT&T Broadband is hereby ordered to immediately notify the Assistant to the City Manager of AT&T Broadband's intent to fully comply with this Order. 3. AT&T Broadband is hereby ordered to do the following within thirty (30) days of the effective date of this Order: (i) modify its CSA by bringing its dispute resolution policy into total compliance with applicable law; (ii) provide the City with an opportunity to review and approve the revised dispute resolution policy before it is issued to subscribers; (iii) inform the Assistant to the City Manager of the manner in which subscribers will be notified of the revised dispute resolution policy; and (iv) issue a revised dispute resolution policy to subscribers. 4. Failure to comply with this Order may result in a franchise violation, the immediate issuance of a notice of violation to AT&T Broadband, and the invocation of appropriate remedies. 5. This Order shall be effective immediately upon its approval by the City Council. Passed this 22nd day of April 2002 by the Columbia Heights City Council. 7) Authorize Transfer of Funds from General Fund to Police Department Budget to Repay Overtime fund Motion to transfer $6,396.64, the total amount received from Unique Thrift Store, Columbia Heights High School, Columbia Heights Recreation Department, and the Heights Theater (Morgan & Meyers) for off duty security worked, from the General Fund to the Police Department 2002 budget under line 1020, Police overtime. Fehst stated that this transfer of funds is consistent with past practice. 8) Authorize attendance at out town conference by Police Explorers Motion to authorize the attendance of Officer Joe Sturdevant and CSO Christine Okerstrom as advisors, and four Police Explorers at the 2002 State Law Enforcement Explorer Conference on April 25 - 28, 2002 at Breezy Point, Minnesota, with costs to be covered out of the 2002 Police Department budget, 101-42100-3320. Fehst stated that this is an annual event for Police Explorers and staff liaisons. 9) Adopt Resolution No. 2002-31, being a Resolution Establishing Election Precinct Boundaries and Polling Places City Council Minutes April 22, 2002 Page 5 of 23 Motion to waive the reading of Resolution No. 2002-31, there being ample copies available to the public. Motion to adopt Resolution No. 2002-31, being a resolution establishing precinct boundaries and designating polling places. RESOLUTION 2002-31 RESOLUTION ESTABLISHING PRECINCTS AND POLLING PLACES WHEREAS, the legislature of the State of Minnesota has been redistricted; and WHEREAS, the voting precincts in the City must be reestablished after the legislature has been redistricted; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Columbia Heights, Anoka County, State of Minnesota that: 1. The City be divided into eight voting precincts effective with the September 10, 2002 State Primary Election, and 2. That the boundaries of the precincts are hereby established pursuant to Minnesota Statute 204B. 14, subdivision 3c, and 3. That the polling places of the precincts are hereby established pursuant to Minnesota Statute 204B. 16, and 4. That such boundaries and polling places shall be as follows: Precinct ! described as follows: Beginning at the intersection of 44th and Main Street, south along the center line of Main Street to 40th Avenue, west along the center line of 40th Avenue to the west boundary of Columbia Heights, south along the western boundary of Columbia Heights to 37th Avenue, east along the center line of 37th Avenue to 5th Street, north along the center line of 5th Street to 39th Avenue, northeast along the center line of 39th Avenue to Jefferson Street, north along the center line of Jefferson Street to 40th Avenue, west along the center line of 40th Avenue to 7th Street, north along the center line of 7th Street to 44th Avenue, west along the center line of 44th Avenue to the center line of Main Street. The polling place for Precinct 1 shall be John P. Murzyn Hall located at 530 Mill Street. Precinct 2 described as follows: Beginning at the intersection of 44th Avenue and 7th Street, south along the center line of 7th Street to 40th Avenue, east along the center line of 40th Avenue to Jefferson Street, south along the center line of Jefferson to 39th Avenue, west along the center line of 39th Avenue to 5th Street, south along the center line of 5th Street to 37th Avenue, east along the center line of 37th Avenue to Central Avenue, north along the center line of Central Avenue to 44th Avenue, west along the center line of 44th Avenue to the center line of 7th Street. The polling place for Precinct 2 shall be Northwestern Electronics Institute located at 825 41st Avenue N.E. Precinct 3 described as follows: Beginning at intersection of 42nd Avenue and Central Avenue, south along the center line of Central Avenue to 37th Avenue, east along the center line of 37th Avenue to Hayes Street, north along the center line of Hayes Street to 40th Avenue, west along the center line of 40th Avenue to Reservoir Boulevard, northeast along the center line of Reservoir Boulevard to 42nd Avenue, west along the center line of 42nd Avenue to the center line of Central Avenue. The polling place for Precinct 3 shall be Parkview Villa located at 965 40th Avenue N.E. Precinct 4 described as follows: Beginning at the intersection of 42nd Avenue and Central Avenue, east along the center line of 42nd Avenue to Reservoir Boulevard, northeast along the center line of Reservoir Boulevard to McLeod Street, west along the center line of McLeod Street to north along the center line of McLeod Street to 45th Avenue, west along the center line of 45th Avenue to southwest comer of Keyes Park, north along the western boundary of Keyes Park to 46th Avenue, east along the center line of 46th Avenue to the Minneapolis Water Works, north along the boundary of the Minneapolis Water Works to 49th Avenue, west along the center line of 49th Avenue to Fillmore Street, northwest along the center line of Fillmore Street to 50th Avenue, west along the center line of 50th Avenue to Central Avenue, south along the center line of Central Avenue to the center line of 42nd Avenue. The polling place for Precinct 4 shall be Highland Elementary School located at 1500 49th Avenue N.E. Precinct 5 described as follows: Beginning at the intersection of Hayes Street and 37th Avenue, east along the center line of 37th Avenue to Stinson Boulevard, north along the center line of Stinson Boulevard to 45th Avenue, west along the center line of 45th Avenue to the Minneapolis Water Works, west along the southern boundary of the Minneapolis Water Works to Keyes Park, west along the southern boundary of Keyes Park to McLeod Street, south along the center line of McLeod Street then east along the center line of McLeod Street to Reservoir Boulevard, southwest along the center line of Reservoir Boulevard to 40th Avenue, east along the center line of 40th Avenue to Hayes Street, south along the center line of Hayes Street to the center line of 37th Avenue. The polling place for Precinct 5 shall be First Lutheran Church located at 1555 40th Avenue N.E. City Council Minutes April 22, 2002 Page 6 of 23 Precinct 6 described as follows: Beginning at the intersection of Stinson Boulevard and 45th Avenue, north along the center line of Stinson Boulevard to the northern boundary of Columbia Heights, west along the northern boundary of Columbia Heights to Central Avenue, south along the center line of Central Avenue to 50th Avenue, east along the center line of 50th Avenue to Fillmore Street, southeast along the center line of Fillmore Street to 49th Avenue, east along the center line of 49th Avenue to Johnson Street, south along the western border of the Minneapolis Water Works to 46th Avenue, west along the center line of 46th Avenue to northwest comer of Keyes Park, south along the western boundary of Keyes Park to 45th Avenue, east along the center line of 45th Avenue to the southern boundary of Minneapolis Water Works, east along the southern boundary of Minneapolis Water Works to 45th Avenue, east along the center line of 45th Avenue to the center line of Stinson Boulevard. The polling place for Precinct 6 shall be Highland Elementary School located at 1500 49th Avenue N.E. Precinct 7 described as follows: Beginning at the intersection of 7th Street and 44th Avenue, east along the center line of 44th Avenue to Central Avenue, north along the center line of Central Avenue to 53rd Avenue, west along the center line of 53rd Avenue to 7th Street, south along the center line of 7th Street to the center line of 44th Avenue. The polling place for Precinct 7 shall be Valley View Elementary School located at 800 49th Avenue N.E. Precinct 8 described as follows: Beginning at the intersection of Main Street and 44th Avenue, east along the center line of 44th Avenue to 7th Street, north along the center line of 7th Street to 53rd Avenue, west along the center line of 53rd Avenue to University Avenue, south along the center line of University Avenue to 45th Avenue, west along the center line of 45th Avenue to Main Street, south along the center line of Main Street to the center line of 44th Avenue. The polling place for Precinct 8 shall be Valley View Elementary School located at 800 49th Avenue N.E. Passed this 22nd day of April, 2002 by the Columbia Heights City Council Adopt Resolution No. 2002-28 Declaring the Intent to Bond for Zone 6A Street Rehabilitation projects, including utilities Motion to waive the reading of Resolution No. 2002-28, there being ample copies available to the public. Motion to adopt Resolution No. 2002-28, approving the declaration for the official intent of the City of Columbia Heights to Bond for Zone 6A Street Rehabilitation Project. Fehst stated that by declaring intent to bond any labor or expenses we incur prior to issuance of the bond wouM be included. Nawrocki questioned authorizing a larger amount than the projected need. Fehst stated that this is a normal precaution. RESOLUTION NO. 2002-28 DECLARING THE OFFICIAL INTENT OF THE CITY OF COLUMBIA HEIGHTS TO REIMBURSE CERTAIN EXPENDITURES FROM THE PROCEEDS OF BONDS TO BE ISSUED BY THE CITY WHEREAS, Internal Revenue Service has issued Tres. Reg 1.140-2 providing that proceeds of tax exempt bond used to reimburse prior expenditures will be not be deemed spent unless certain requirements are met; and, WHEREAS, the City of Columbia Heights (the "City") expects to incur certain expenditures which may be financed temporarily from sources other than bonds, and reimbursed from the proceeds of a bond; NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLUMBIA HEIGHTS AS FOLLOWS: 1. The City reasonably intends to make expenditures for project number 2002-02, consisting of Street Rehabilitation and Utility work identified as the Zone 6A Street Rehabilitation Project, and reasonably intends to reimburse itself for such expenditures from the proceeds of debt to be issued by the City in one or more series in the maximum principal amount of $1,375,000. 2. This resolution is intended to constitute a declaration of official intent for purposes of Tres. Reg. 1.150-2 and any successor law, regulating or ruling. Passed this 22nd day of April 2002 by the Columbia Heights City Council. Adopt Resolution No. 2002-29, being a Resolution Declaring the Intent to Bond for Central Avenue Street, Utility, and Streetscaping improvements. Motion to waive the reading of Resolution No. 2002-29, there being ample copies available to the public. City Council Minutes April 22, 2002 Page 7 of 23 Motion to Adopt Resolution No. 2002-29, approving the declaration for the official Intent of the City of Columbia Heights to Bond for the Central Avenue Street, Utility and Streetscaping Improvements. Fehst fisted the amounts' rotating $3.8 million and stated the total wouM be substantially lower than this, but Council wouM be made aware of any action taken. Nawrocki stated he did not want the bonds' increased at a later date. Fehst stated that the bond underwriter and bond attorney would not allow that to happen. RESOLUTION NO. 2002-29 DECLARING THE OFFICIAL INTENT OF THE CITY OF COLUMBIA HEIGHTS TO REIMBURSE CERTAIN EXPENDITURES FROM THE PROCEEDS OF BONDS TO BE ISSUED BY THE CITY WHEREAS, Internal Revenue Service has issued Tres. Reg 1.140-2 providing that proceeds of tax exempt bond used to reimburse prior expenditures will be not be deemed spent unless certain requirements are met; and, WHEREAS, the City of Columbia Heights (the "City") expects to incur certain expenditures which may be financed temporarily from sources other than bonds, and reimbursed from the proceeds of a bond; NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLUMBIA HEIGHTS AS FOLLOWS: 1. The City reasonably intends to make expenditures for project number(s) 1999-12 and 1999-12A, consisting of Trunk Highway Rehabilitation, Utility and Streetscaping work identified as the Central Avenue Street Rehabilitation Project, and reasonably intends to reimburse itself for such expenditures from the proceeds of debt to be issued by the City in one or more series in the maximum principal amount of $3,875,000. 2. This resolution is intended to constitute a declaration of official intent for purposes of Tres. Reg. 1.150-2 and any successor law, regulating or ruling. Passed this 22nd day of April 2002 by the Columbia Heights City Council. 12) Adopt Resolution No. 2002-32, being a Resolution accepting the petition for the Full Street Reconstruction of Monroe Street, from 43rd to 44th Avenues Motion to waive the reading of Resolution No. 2002-32, there being ample copies available to the public. Motion to Adopt Resolution No. 2002-32 accepting a petition for Full Street Reconstruction from rd th property owners on Monroe Street, from 43 to 44 Avenues, and declaring the petition adequate, representing one hundred percent of the fronting property owners. Fehst stated that this action is the result ora petition filed by residents'. Wyckoff asked how the additional cost wouM be covered. Fehst stated that the original project estimate was high, and since the residents' are requesting a higher quality project, that we shouM try to accommodate them. RESOLUTION NO. 2002-32 RESOLUTION ACCEPTING PETITION FOR THE FULL RECONSTRUCTION OF MONROE STREET, 43m~ TO 44TM AVENUES WHEREAS, A petition for local improvement has been submitted to the City of Columbia Heights, and WHEREAS, the petition was examined by the City Engineer, checked and found to be in proper form and to be signed by all owners of property affected by the making of the improvement petitioned for. NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF COLUMBIA HEIGHTS, MINNESOTA: 1. The petition requesting the Full Reconstruction of Monroe Street, between 43rd and 44th Avenues, filed with the council on March 25th, 2002, is hereby declared to be signed by all owners of property affected thereby. This declaration is made in conformity to Minnesota Statutes 429.035. Passed this 22nd day of April 2002 by the Columbia Heights City Council. City Council Minutes April 22, 2002 Page 8 of 23 13) Authorization to seek bids for the 2002 Sewer pipe lining program. Motion to authorize staff to seek bids for the 2002 Sewer Pipe Lining Program. 14) Authorization for environmental consultant for Phase I and Phase II work, pursuant to the purchase agreement for the gas station property at 3955 University Avenue NE. Motion to approve ProSource Technologies as the environmental consultant for Phase I and Phase II work at 3955 University Avenue, based upon their low, qualified, responsible bid in the amount of $6,200.00 with funds to be appropriated from 204-46314-3050, and furthermore to authorize the Mayor and City Manager to enter into an agreement for the same. Fehst stated that information handed out to Council was a correction by the original low bidder. The corrected bid would be $2,000 more than the recommend firm. 15) Establish Hearing Dates for License Revocation of Rental Properties at 3849 Central Ave, 4524 Monroe St, and 1224-1226 Circle Terrace Motion to Establish a Hearing Date of May 13, 2002 for Revocation or Suspension of a License to Operate a Rental Property within the City of Columbia Heights against F.C. Celtic, L.L.C. at 3849 Central Avenue NE. Motion to Establish a Hearing Date of May 13, 2002 for Revocation or Suspension of a License to Operate a Rental Property within the City of Columbia Heights against Rueben Cruz at 4524 Monroe Street NE. Motion to Establish a Hearing Date of May 13, 2002 for Revocation or Suspension of a License to Operate a Rental Property within the City of Columbia Heights against Salman Ali at 1224-1226 Circle Terrace NE. 16) Approve Rental Housing License Applications Motion to approve the items listed for rental housing license applications as submitted. 17) Approve Business License Applications Motion to approve the items as listed on the business license agenda for April 22, 2002 as presented. 18) Approve Payment of Bills Motion to approve payment of the bills, as listed, out of the proper fund. Nawrocki questioned changing the motion for item/~ 14. Fehst stated that staff recommendation was for the second low bidder, because the low bidder did not meet the bid request. Wyckoff stated that all ficenses requests were for contractors. Upon vote: All ayes. Motion carried. Item #2. Establish work session meeting dates Nclwrocki requested that the question be divided. Motion by Nawrocki, second by Szurek to establish a Work Session meeting date for Monday, May 6, 2002, at 7:00 p.m. in City Hall Conference Room 1. Upon vote: All ayes. Motion carried. City Council Minutes April 22, 2002 Page 9 of 23 Motion by Williams, second by Szurek to establish a Work Session meeting date for Monday, May 20, 2002 beginning at 7:00 p.m., in City Hall Conference Room 1. Nawrocki indicated he did not befieve in setting a meeting date with out having an agenda for the meeting. Upon roll call vote: Williams, aye; Szurek, aye; Wyckoff, aye; Nawrocki, nay; Peterson, aye. 4 ayes, 1 nay. Motion carried. Item #5 - Liquor services at Murzyn Hall Nawrocki was concerned that the agreement date coincide with the liquor license, that the 30 day termination notification should be more flexible for a club that has worked with the CiO;for many years, and that the agreement have language of "termination with cause ". Jim Hoefi, City Attorney, stated that some type of termination agreement is necessary, however the 30 day time period was arbitrary. Peterson stated that the Park and Recreation Commission approved and recommended this agreement. Hoefi recommended keeping the agreement date separate from the fiquor ficense dates, because there are different standard,'. Hoefi recommended not including "termination with cause ". Nawrocki referred to the Honeywell contract including "termination with cause ". Fehst indicated that this was in the Honeywell contract to allow us to termination if we choose to retain our own maintenance staff. Fehst stated that the Lions Club has done an excellent job at Murzyn Hall for many years and that we hope to keep them on as long as they will have us. The request for an agreement is relative to our insurance company's determination for risk management. Motion by Williams, second by Szurek, to enter into an agreement with the Lions Club for Bartending Services at John P. Murzyn Hall; and furthermore, to authorize the Mayor and City Manager to enter into an agreement for the same. Motion to amend by Nawrocki, to add to the 30 day notice, and to add "with cause" to termination. Amendment failed for lack of a second. Upon vote of the original motion: All ayes. Motion carried. PUBLIC HEARINGS - none ITEMS FOR CONSIDERATION Other Ordinances and Resolutions Second Reading of Ordinance No. 1446, Amending the City of Columbia Heights Street Excavation Portion of the City Code (6.301). Motion by Williams, second by Szurek to waive the reading of Ordinance No. 1446, there being ample copies available to the public. Upon vote: All ayes. Motion carried. Motion by Williams, second by Szurek to adopt Ordinance No. 1446, being an Ordinance amending the Street Excavation section of the City Code (6.301) and replacing it with a Right-of-Way Management Ordinance. City Council Minutes April 22, 2002 Page 10 of 23 Nawrocki asked if the degradation fee has been added Shawn Johnson, Public Works Administrative Assistant, stated that changes do include the degradation fee, which helps to cover costs if someone does not finish the job. Nawrocki questioned if this fee was charged prior to any work being done. Johnson indicated the fee is only collected if the job does not meet requirements. Nawrocki referred to the thirteen cities surveyed and stated that recommended fees are higher than the average. He questioned the need for an ordinance of this length and that additional costs will be passed on to the homeowner. Nawrocki stated he would not support this fee structure. Upon vote: Williams, aye; Szurek, aye; Wyckoff, aye; Nawrocki, nay; Peterson, aye. 4 ayes -1 nay. Motion carried. (Ordinance 1446 has been added to the end of these minutes) Bid Considerations - Civil Service Appointment Fehst stated that the interviews for the Assistant Fire Chief position wouM be hem on Saturday, April 2 ?th, but there are currently two positions open on the Police and Fire Civil Service Commission. An appointment to this commission is necessary for a quorum at the interviews. Nawrocki questioned if Mr. Petkoff and Mr. Magnuson couM continue to serve on the Pofice and Fire Civil Service Commission until replaced Fehst stated that commissioners for this particular commission must live in the community. Magnuson no longer lives in town, and Petkoff would not be available on Saturday as he has a prior commitment. Nawrocki asked why the interview date was not changed Fehst stated that the testing and interview timeline are established well in advance, and that only the testing process has been completed to date. Peterson stated that he would be comfortable making two appointments this evening, as Council must make a decision and move ahead Motion by Nawrocki to appoint Mitch Demars to the Police and Fire Civil Service Commission. Second by Wyckoff. Peterson asked that voted ballots be submitted to the secretary. Nawrocki felt a secret ballot was not in order. Peterson stated that discussions for appointment are normally held following interviews and not at a meeting. Wyckoff stated that there had not been a private vote for appointment in her four years on the City Council. She indicated that Councilmembers should have time to discuss the interviews with Councilmembers that were unable to attend Peterson suggested not making an appointment at this time. Fehst stated that this would not be fair to those asked to spend their day interviewing candidates. Upon vote: Williams, nay; Szurek, nay; Wyckoff, aye; Nawrocki, aye; Peterson, abstain. 2 ayes, 2 nays, and 1 abstention. Motion failed. Motion by Williams to appoint John Hunter to the Police and Fire Civil Service Commission. Second by Szurek. Nawrocki indicated that this motion and second were made by Councilmembers who were not at the board and commission interviews. Wyckoff spoke of her fondness for Mr. Hunter, but felt it inappropriate to place him on this commission because of his vocal comments regarding people with alternative lifestyles, and if approved we would be condoning his position. Fehst made it clear that the Civil Service Commission and two outside persons, with pre-designated questions and Assistant City Manager Linda Magee to oversee procedure, conduct the police and fire interviews. City Council Minutes April 22, 2002 Page 11 of 23 Peterson stated that he has known Mr. Hunter for many years and did not hear any bias during the interview. Peterson stated he would be willing to meet again this week if necessary, but asked Councilmembers to not weight their decision on statements' made at this meeting. Nawrocki spoke of the Demars interview and how impressed he was with Demars' qualifications. He stated that he was not familiar with Wyckoff' s comment, but stated he was sure she had her reasons. Nawrocki stated he would vote to abstain from the present motion. Upon vote: Williams, aye; Szurek, aye; Wyckoff, nay; Nawrocki, abstain; Peterson, abstain. 2 ayes - 1 nay - 2 abstentions. Motion carried. Hoefi stated that abstentions are counted with the majority vote, so this would be a 4-1 approval. Nawrocki asked Hoefi to verify this action from Roberts' Rules of Order. Peterson invited the students present to come forward and introduce themselves. Other Business - none ADMINISTRATIVE REPORTS Report of the City Manager Fehst made available a handout from the League of Minnesota Cities on Council meeting procedures. He stated that Thursday, April 2ffh Js "Bring your chiM to work" day. Staff will be interviewing candidates for the Community Development Director position, and invited Councilmembers to meet the finalists' on Wednesday, April 2dth. Fehst reported on the State Police Chief's' annual banquet hem in St. Cloud which was attended by Councilmembers and eighteen Police Department Staff. Three of our officers and Ellen Thompson, resident, received awards for the incident last July. Wyckoff questioned the status of complaints regarding Dave's Refrigeration. Fehst stated that substantial improvements' have not been made and would be passed on to our attorney to issue a citation. Fehst indicated that Mr. Roberts' was asked to honor his agreement to not park on the boulevard at night. Peterson asked for copy of that agreement. Fehst stated the agreement was based on comments' made at our Council meeting. Nclwrocld stated that parking and storage structures are on the public right of way and not allowed by ordinance. Fehst stated that this is not acceptable. Peterson stated that one shed had been repaired and a new structure has appeared. Peterson stated that earfier in the day he drove around the City with a gentleman who pointed many out private homes that are in worse shape than this business, with broken glass, rusted tires, and stumps. He indicated that the Fire Department would soon begin their annual inspections. Peterson asked all residents' to look at their property and do a clean up. Report of the City Attorney Hoefi reported that League of Minnesota Cities material indicates the vote taken on the Police and Fire Civil Service commission was appropriate. Nclwrocki referred to Roberts' Rules of Order. GENERAL COUNCIL COMMUNICATIONS Minutes of Boards and Commissions · Meeting of the Housing and Redevelopment Authority of February 19, 2002. · Meeting of the Economic Development Authority of March 19, 2002 City Council Minutes April 22, 2002 Page 12 of 23 CITIZENS FORUM Malcolm Watson commented on Pubfic Works' Week, and reported that Earl Guy Gustafson, former Pubfic Works' Director, is seriously ill and asked that he be remembered in prayer. Watson stated he was present on behalf of the Crest Fiew Foundation, to inform the pubfic that Marilyn Sellers would perform in the "Heart of the Fillage" concert at First Lutheran Church at 2:00 p.m. this Sunday. Support is needed to build a chapel and a community center. HaroM Hoium, 4315 5th Street NE, stated that for safety reasons, there shouM be no parking allowed on city streets, as it turns them into junkyards. Larry Beeman, 3846 Tyler, stated that parking on a street does not constitute ajunkyard. Dick Schmidt, 691 47th Avenue NE, stated that the construction cfa new home began on his street during mid-March. There have been construction vehicles parked in the yard and on the street that have deposited mud on the streets' leaving a large mess. He explained his attempts' to have the streets' swept and stated that a couple kids showed up with a shovel and broom to clean up, which did not even begin to do the job properly. Schmidt stated he called the City again and the street was swept. Following this, a dumpster got stuck on the property and it snowed, which turned in to more mud on the street. Fehst stated that contractors are required to clean their site or be billed for the cleaning. Peterson indicated that he looked at the property today and there was not a problem. Schmidt said it was swept only because he complained. Peterson stated as a contractor, that spring is the most difficult time of year to keep an area clean. Nawrocki suggested a silt fence similar to deafings with a previous property. Fehst stated that silt fence was for clearing a site, not for building a home. Nawrocki questioned the need for total access. Fehst stated this is not required where erosion is not a problem. Schmidt stated there is also a pile of blocks' there, which are an eye sore. Williams indicated that this would be a very nice home when completed. Roger Strom, 69 7 4 ?th ~, stated that he concurred with Mr. Schmidt regarding dust and dirt on the road. Strom stated that more should be done to keep the area clean. Strom asked if the Central Avenue project would be done this year and if MnDOTwould cover the cost. Peterson indicated that, depending on the weather, the project should be completed this year. Fehst stated that MNDOT would pay for road repair, and there would be some assessed costs for storm sewer work, replacement of lead water lines, and landscaping on the boulevard. Fehst indicated that the construction would cause some problems this summer, but asked everyone to continue to support local businesses. Fehst stated that anyone with questions on this project could call him. Peterson apologized for the discomfort of residents affected by the home construction, and stated he would talk to contractor. Bruce Nedegaard, 4200 Central Avenue and contractor for this home, apologized if the area was not cleaned up sufficiently. He stated this is a tough time of year with road restrictions and spring weather. He asked neighbors to bare with the mess for another week, after which there should be no further problems. Strom questioned landscaping of the home. Nedegaard stated that would be the owner's responsibility. Strom asked when the driveway would be installed. Nedegaard stated the driveway would be installed in about a month when asphalt becomes available. Michael Henry, 947 43ra Avenue, stated that parking on both sides of the street slows traffic down. He agreed it is tough this time of year for construction companies to keep streets' clean. City Council Minutes April 22, 2002 Page 13 of 23 COUNCIL CORNER Nawrocki referred to being taken to task for his actions at the March 26 Lomianki Park meeting. He read the notice sent to residents' of this area, which stated there wouM be review and discussion at the meeting. At the meeting City Planner indicated that residents' couM walk around the room to look at displays' and leave their questions in writing. Nclwrocki stated he did not believe this was the proper way to have a hearing, and so made the comments' he did. He also stated that he was invited by the Mayor to make comments' because he lived in this area when Columbia Heights' obtained the land. He felt the presentation was to show what a proposed developer suggested for the property. Nawrocki stated "Actions speak louder than words'; practice what you preach." Williams quoted from a "Bits' and Pieces" book. Williams stated that he challenged Nawrocki at the last meeting because he befieved the City Planner had good intentions and should have been allowed to do his job. Williams stated that he expects' Dave Roberts, Dave's Refrigeration, to clean up his property. He also stated that tearing up Central Avenue will cause some people to be angry, but it will be beautiful when it is finished. Fehst spoke of historical copies of hand printed maps he received from Mr. Blood. He hopes to frame them so they are available for everyone to enjoy. Peterson indicated that it was a pleasure to be involved in the 60th Anniversary of the Columbia Heights' Assembly of God Church. He stated that there would be a Park and Recreation Commission meeting in the Council Chambers on Wednesday, April 24, 2002 at 6:30 where the commission will discuss the use of land south of Lomianki Park. Peterson stated "Don't' take life to seriously, enjoy life, and do a random act of kindness. He described such an act which tookplace on 37th Avenue and Central Avenue. ADJOURNMENT Mayor Peterson adjourned the meeting at 9:40 p.m. Patricia Muscovitz, Deputy City Clerk City Council Minutes April 22, 2002 Page 14 of 23 ORDINANCE #1446 BEING AN ORDINANCE ESTABLISHING THE CITY OF COLUMBIA HEIGHTS CODE OF MANAGEMENT REGULATIONS FOR THE PUBLIC RIGHT-OF-WAY The City Columbia Heights does hereby establish City Code Section 6.301 to read as follows: Purpose. The City holds the right-of-way within its geographical boundaries as an asset in trust for its citizens. The City and other public entities have invested substantial dollars in public funds to build and maintain the right-of-way. The City also recognizes that by placing other utility equipment in the right-of-way for the purpose of delivering services to the citizens of the City also is a public use of this property for the public good. Although such services are necessary or convenient for the citizens, other persons or entities receive revenue and/or profit through their use of public property. Although the installation of such service delivery facilities are in most cases a necessary and proper use of right-of-way, the City must regulate and manage such uses. To provide for the health, safety and well-being of its citizens, and to ensure the structural integrity of its streets and the appropriate use of the fights-of-way, the City strives to keep its right-of-way in a state of good repair and free from unnecessary encumbrances. Although the general population bears the financial burden for the upkeep of the fight-of-way, one of the causes for the early and excessive deterioration of its right-of-way is frequent excavation. This ordinance imposes reasonable regulations on the placement and maintenance of equipment currently within its right-of-way or to be placed therein at some future time. It is intended to complement the regulatory roles of state and federal agencies. Under this ordinance, persons disturbing and obstructing the fights-of-way will bear a fair share of the financial responsibility for their integrity. This ordinance shall be interpreted consistently with 1997 Session Laws, Chapter 123, substantially codified in Minnesota Statues Sections 237.16, 237.162, 237.163,237.79, 237.81, and 238.086 (the "Act") and the other laws governing applicable fights of the city and users of the right-of-way. This chapter shall also be interpreted consistent with Minnesota Rules 7819.0050-7819-9950 where possible. To the extent any provision of this ordinance cannot be interpreted consistently with the Minnesota Rules, that interpretation most consistent with the Act and other applicable statutory and case law is intended. This ordinance shall not be interpreted to limit regulatory and police powers of the city to adopt and enforce general ordinance necessary to protect the health, safety and welfare of the public. Election to Manage the Public Rights-of-Way: Pursuant to the authority granted to the City under state and federal statutory administrative and common law, the City hereby elects pursuant Minnesota Statues, 237-163 subd. 2(b) to manage fight-of-way within its jurisdiction. Definitions. The following words, terms and phrases, as used herein, have the following meanings: Applicant. Is the person or entity requesting permission to excavate or obstruct a fight-of-way. City. For purposes of this ordinance, City means the City of Columbia Heights and its elected officials, officers, employees, agents or any commission, committee or sub-division acting pursuant to lawfully delegated authority. City Cost. The actual cost incurred by the City for public rights-of-way management; including but not limited to costs associated with registering applicants; issuing, processing, and verifying fight-of-way permit applications; inspecting job sites and restoration projects; maintaining, supporting, protecting, or moving facilities during public fight-of-way work; determining the adequacy of right-of-way restoration; restoring work inadequately performed; mapping of "as built" locations of facilities located in fights-of-way; and revoking right-of-way permits and performing all other tasks required by this Section, including other costs the City may incur in managing the provisions of this Section. Degradation. The accelerated depreciation of the right-of-way caused by excavation or disturbance of the right-of-way, resulting in the need to reconstruct such right-of-way earlier than would be required if the excavation did not occur. City Council Minutes April 22, 2002 Page 15 of 23 Degradation Cost. Money paid to the City to cover the cost associated with a decrease in the useful life of a public fight-of-way caused by excavation. Emergency. A condition that 1) poses a clear and immediate danger to life or health, or of a significant loss of property; or 2) requires immediate repair or replacement in order to restore service to a customer. Equipment. Any tangible thing or asset used to install, repair or maintain facilities in any right-of-way; but shall not include boulevard plantings or gardens planted or maintained in the fight-of-way between a person's property and the street curb. Excavate. To dig into or in any way remove or physically disturb or penetrate any part of a fight-of-way. Permit. A permit issued pursuant to this Section. Permit Holder. Any person to whom a permit to excavate or place equipment or facilities in a right-of-way has been granted by the City under this Section. Public Right of Way. The area on, below, or above a public roadway, highway, street, cart way, bicycle lane and public sidewalk in which the City has an interest, including other dedicated fights-of-way for travel purposes and utility easements of the City. It shall also include utility easements along side and rear lot lines. A right of way does not include the airwaves above a fight-of-way with regard to cellular or other non-wire telecommunications or broadcast service. Registrant. Any person who has or seeks to have its facilities or equipment located in any right-of-way. Restore or Restoration. The process by which the fight-of-way and surrounding area, including pavement and foundation, is returned to the condition that existed before the commencement of the work. Restoration Cost. Money paid to the City by a permittee to cover the cost of restoration. Right-of-Way. The surface and space above and below a public roadway, highway, street, cart way, bicycle lane and public sidewalk in which the City has an interest, including other dedicated rights-of-way for travel purposes and utility easements owned by the City for City utility purposes. Service or Utility Service. Includes but is not limited to 1) those services provided by a public utility as defined in Minn. Stat. §216B.02, Subds. 4 and 6; 2) telecommunications, pipeline, community antenna television, fire and alarm commumcations, water, sewer, electricity, light, heat, cooling energy, or power services; 3) the services provided by a corporation organized for the purposes set forth in Minn. Stat. §300.03; 4) the services provided by a district heating or cooling system; and 5) cable communications systems as defined in Minn. Stat. Chap. 238. Telecommunication Right-of-Way User. A person owning or controlling a facility in the public fights-of-way, or seeking to own or control a facility in the public fight-of-way, that is used or is intended to be used for transporting telecommunication or other voice or data information. For purposes of this Section, a cable communication system defined and regulated under Minn. Stat. Chap. 238, and telecommunication activities related to providing natural gas or electric energy services are not telecommunications fight-of-way users. Administration. The Public Works Director is the principal city official responsible for the administration of the right-of-way permits, and the ordinances related thereto. The Public Works Director may delegate any or all of the duties hereunder. 1 Registration Requirements. (a) Each person who occupies, uses, or seeks to occupy or use the fight-of-way or place any equipment or facilities in or on the fight-of-way, including persons with installations and maintenance responsibilities by lease, sublease, or assigmnent, must register with the city. Registration will consist of providing application information and paying a registration fee. (b) No person shall construct, install, repair, remove, relocate or perform any work within any fight-of-way without first being registered pursuit to this subsection. Such registration shall be made on an application form provided by the City and shall be accompanied by the registration fee required by the City. All fight-of-way registration fees shall be set forth in the City of Columbia Heights licensing fee section. 2 Registration Information. City Council Minutes April 22, 2002 Page 16 of 23 The registrant shall provide the following information at the time of registration and shall promptly notify the City of changes in such information: (a) Registrant's name, address, telephone number, facsimile number and Gopher One-Call registration certificate number if required by State law. (b) Name, address, e-mail address, telephone number, and facsimile number of the person responsible for fulfilling the obligations of the registrant. (c) A Certificate of Insurance from a company licensed to do business in the State of Minnesota providing coverage in the following amounts: (i) GENERAL LIABILITY: Public Liability, including premises, products and complete operations. Bodily Injury Liability Property Damage Liability Bodily Injury and Property and Damage Combined $1,000,000 each person $2,000,000 each occurrence $2,000,000 each occurrence $2,000,000 single limit (ii) COMPREHENSIVE: Automobile Liability Insurance, including owned, non-owned and hired vehicles. Bodily Injury Liability Property Damage Liability In lieu of 1) & 2) Bodily Injury and Property Damage Combined $1,000,000 each person $2,000,000 each occurrence $2,000,000 each occurrence $2,000,000 single limit Such certificate shall verify that the registrant is insured against claims for personal injury, including death, as well as claims for property damage arising out of the (i) use and occupancy of the right-of-way by the registrant, its officers, agents, employees and permittees, and (ii) placement and use of equipment or facilities in the rights-of-way by the registrant its officers, agents, employees and permittees, including but not limited to, protection against liability arising from completed operations, damage of underground equipment and collapse of property. Such certificate shall also indicate the registrant's insurance is the primary coverage, shall name the CiW as an additional insured as to whom the coverage's required herein are in force and applicable and for whom defense will be provided as to all such coverage's. Such certificate shall require that the City be notified 30 days prior to cancellation or non-renewal of the policy. (d) 24-hour emergency number. (e) An acknowledgment by the registrant of the indemnification. (f) Such other information the City may require. 3 Exceptions. The following are not subject to the requirements of this subsection: (a) Persons planting or maintaining boulevard plantings or gardens. (b) Persons or individual erecting fences, installing driveways, sidewalks, curb and gutter, or parking lots. (c) Persons engaged in snow removal activities. (d) Federal, State, County, and City agencies. (e) Persons installing pet containment systems. (f) Plumbers licensed in accordance with City Code. City Council Minutes April 22, 2002 Page 17 of 23 (g) Persons acting as agents, contractors or subcontractors for a registrant who has properly registered in accordance with this subsection. 4 Term. Registrations issued pursuant to this Ordinance shall expire on December 31st of each calendar year. Reporting Obligations. Each registrant shall, at the time of registration and by December 1st of each year, file a construction and major maintenance plan for underground facilities with the city. Such plan shall be submitted using a format designated by the city and shall contain the information determined by the city to be necessary to facilitate the coordination and reduction in the frequency of excavations and obstructions of right-of-way. The plan should include, but not be limited, to the following information: (a) The locations and the estimated beginning and ending dates of all projects to be commenced during the next calendar year; and (b) To the extent known, the tentative locations and estimated beginning and ending dates for all projects contemplated for the five years following the next calendar year. The term "project' in this section shall include both next-year projects and five year projects. By January 1st of each year the city will have available for inspection in the city's office a composite list of all projects for which the city has been informed of the annual plans. All registrants are responsible for keeping themselves informed on the current status of this list. Thereafter, by February 1st, each registrant may change any projects in its list of next-year projects, and must notify the city and all other registrants of all such changes in said list. Notwithstanding the foregoing, a registrant may at any time join in a next-year project of another registrant listed by the other registrant. Notwithstanding the foregoing, the city will not deny an application for a fights-of-way permit for failure to include a project in a plan submitted to the city if the registrant has used commercially reasonable efforts to anticipate and plan for a project. Permit Required; Bond; Exceptions. No person shall excavate, dig, tunnel, trench, or install any facilities, equipment or improvements above, on, or beneath the surface of any right-of-way in the City or any property owned by the City without first obtaining a permit pursuant to this subsection. (a) Permit - Excavation. An excavation permit is required by a registrant to excavate any part of the right-of-way described in such permit to hinder free and open passage over the specified portion of rights-of-way by placing facilities described therein, to the extent and for the duration specified therein. (b) Permit - Obstruction. A permit is also required by a registrant to hinder free and open passage over the specified portion of fight-of-way by placing equipment described therein on or above the fight-of-way to the extent and for the duration of the permit. Application Fee. An application for a permit shall be made on forms provided by the City and shall be accompanied by the fees set forth by the City of Columbia Heights which are established to reimburse the City for associated costs. If the work is to be performed by an agent, contractor or subcontractor on behalf of a registrant, the registrant shall sign such application. The application shall also be accompanied by the following: (a) Scaled drawings showing the location of all facilities and improvements proposed by the applicant. (b) A description of the methods that will be used for installation. (c) A proposed schedule for all work. (d) The location of any public streets, sidewalks or alleys that will be temporarily closed to traffic during the work. (e) The location of any public streets, sidewalks or alleys that will be disrupted by the work. City Council Minutes April 22, 2002 Page 18 of 23 (f) A description of methods for restoring any public improvements disrupted by the work. (g) Any other information reasonably required by the Public Works Director or City Engineer. (h) Residents over the age of 62 will be required to pay a permit fee of $35.00 per excavation. Security. A surety bond, letter of credit or cash deposit in the amount determined by the Public Works Director or City Manager but not less than $5,000, shall be required from each applicant. A surety bond shall be from a corporate surety authorized to do business in the State. Security required pursuant to this subsection (2) shall be conditioned that the holder will perform the work in accordance with this ordinance and applicable regulations, will pay to the City any costs incurred by the City in performing work pursuant to this section; and will indemnify and save the City and its officers, agents and employees harmless against any and all claims, judgment or other costs arising from any excavation and other work covered by the permit or for which the City, Council or any City officer may be liable by reason of any accident or injury to persons or property through the fault of the permit holder, either in improperly guarding the excavation or for any other injury resulting from the negligence of the permit holder. The bond, letter of credit or cash deposit shall be released by the City upon completion of the work and compliance with all conditions imposed by the permit. For permits allowing excavations within public streets, such bond, letter of credit or cash deposit shall be held for a period of 24 months to guaranty the adequacy of all restoration work. Permit Issuance; Conditions. The Public Works Director or City Manager shall grant a permit upon finding that the work will comply with applicable sections of this ordinance. The permit shall be kept on the site of the work while it is in progress, in the custody of the individual in charge of the work. The permit shall be exhibited upon request made by any City official or police officer. The Public Works Director or City Manager may impose reasonable conditions upon the issuance of the permit and the performance of the applicant there-under to protect the public health, safety and welfare, to ensure the structural integrity of the right-of-way, to protect the property and safety of other users of the right-of-way, and to minimize the disruption and inconvenience to the traveling public. An excavation permit is required for work that involves excavation and boulevard right-of-way repairs. Where excavations disturb both a street and boulevard area, the permit holder will be charged for one street excavation permit per right-of- way excavation. No permit shall be issued to anyone who has failed to register in accordance with this ordinance. Exceptions. No permit shall be required for the following: (a) Landscaping work permitted by the City pursuant to Site Improvement or Developer Agreements. (b) Driveways, sidewalks, curb and gutter, and other facilities permitted by the City pursuant to the public improvement process. (c) Snow removal activities. (d) Restoration due to maintenance activities of the City. (Minimum restoration standards still apply). Diligence in Performing Work. Work shall progress in an expeditious manner as reasonably permitted by weather conditions until completion in order to avoid unnecessary inconvenience to traffic. In the event that the work is not performed in accordance with applicable regulations pertaining to excavations and utility connections, or the work is not done in an expeditious manner, or shall cease or be abandoned without due cause, the City may, after 72 hour notice to the permit holder, correct the work and fill the excavation or repair the street. The entire cost of such work shall be paid by the permit holder upon demand made by the City. The financial guarantees may be used by the City to reimburse itself for costs incurred through private engineering consulting fees and attorney fees to complete the work under this section. Standards During Construction or Installation. The permit holder shall comply with the following standards when engaging in the work: (1) Take such precautions as are necessary to avoid creating unsanitary conditions. Observe and comply with all laws, roles and regulations of the State, County, and City. (2) Conduct the operations and perform the work in a manner as to ensure the least obstruction and interference to traffic. (3) Take adequate precautions to ensure the safety of the general public and those who require access to abutting property. (4) If required by the Public Works Director or City Engineer, notify adjoining property owners prior to the commencement of work which may disrupt the use of and access to such adjoining properties. City Council Minutes April 22, 2002 Page 19 of 23 (5) In all cases where construction work interferes with the normal use of the construction area, provide for closing the construction area to traffic or to afford it restricted use of the area and comply with MMUTCD traffic safety signing requirements. (6) Exercise precaution at all times for the protection of persons, including employees and property. (7) Protect and identify excavations and work operations with barricade flags, and if required, by flagmen in the daytime, and by warning lights at night. (8) Provide proper trench protection as required by O.S.H.A. when necessary and depending upon the type of soil, in order to prevent cave-ins endangering life or tending to enlarge the excavation. (9) Protect the root growth of trees and shrubbery. (10) Installation of pipe (utility conductors) under Portland Cement Concrete, asphalt concrete, or other high-type bituminous pavements shall be done by jacking, auguring or tunneling as directed by the Engineer unless otherwise authorized. HDPE sleeving shall be an acceptable casing or sleeving material for telecommunications installations. (11) When removing pavement of Portland Cement Concrete, asphalt concrete or high-type built-up bituminous surfacing, the pavement shall be removed on each side of the trench or excavation a distance of nine inches beyond the trench width and length, in order to provide a shoulder and solid foundation for the surface restoration. (12) To obtain a straight edge and neat-appearing opening in pavement surfaces, the following procedure is required: (a) Portland Cement Concrete Pavement - The surface shall be saw-cut scored two inches deep and the concrete broken out by sledge or pneumatic hammer chisel. (b) Asphalt Concrete - The surface shall be cut full depth by pneumatic hammer chisel. (13) Excavations, trenches and jacking pits off the roadway or adjacent to the roadway or curbing shall be sheathed and braced depending upon location and soil stability, and as directed by the City. (14) Excavations, trenches and jacking pits shall be protected when unattended to prevent entrance of surface drainage. (15) All backfilling must be placed in six-inch layers at optimum moisture and compacted with the objective of attaining 100 percent of AASHTO density. Compaction shall be accomplished with hand, pneumatic or vibrating compactors as appropriate. (16) Backfill material shall be Class 5, or better at the judgment of the Public Works Director. Backfilling with the material from the excavation may be permitted provided such material is granular in nature and acceptable to the Public Works Director or Assistant City Engineer. (17) Compacted backfill shall be brought to street grade and crowned at the center not more than one inch. Backfill procedures shall provide for no settlements. Settlements, which occur within a 2-year warranty period, shall be repaired in a timely manner. The City may authorize another contractor to make the repair if it is not done in a timely manner. Reimbursement may be made from the surety bond, letter of credit or cash deposit with City. (18) Street and pedestrian traffic shall be maintained throughout construction unless provided otherwise by the permit. (19) No lugs damaging to roadway surfaces may be used. (20) Dirt or debris must be periodically removed during construction. (21) Other reasonable standards and requirements of the Public Works Director or Assistant City Engineer. Repair and Restoration. (i) Schedule. The work to be done under the permit, and the repair and restoration of the right-of-way as required herein, must be completed within the dates specified in the permit, increased by as many days as work could not be done because of extraordinary circumstances beyond the control of the permit holder, when work was prohibited as unseasonable or unreasonable or when extended by the Public Works Director. In addition to repairing its own work, the permit holder must City Council Minutes April 22, 2002 Page 20 of 23 restore the general area of the work, and the surrounding areas, including the paving and its foundations, to the condition that existed before the commencement of the work but only to the extent the permit holder disturbed such surrounding areas. (2) General Standards. The permit holder shall perform repairs and restoration according to the standards and with the materials specified by the Public Works Director or Assistant City Engineer. Both individuals shall have the authority to prescribe the manner and extent of the restoration, and may do so in written procedures of general application or on a case-by-case basis. In exercising this authority, the Public Works Director or Assistant City Engineer shall be guided by the following standards and consideration: (a) Minimum pavement restoration standards are set forth in the 'Standard Plates,' attached herein as Plate Numbers 1-13. (b) The number, size, depth and duration of the excavations, disruptions or damage to the right-of-way. (b) The traffic volume carded by the right-of-way; the character of the neighborhood surrounding the right-of-way; (c) The pre-excavation condition of the right-of-way; the remaining life-expectancy of the right-of-way affected by the excavation; (d) Whether the relative cost of the method of restoration to the permit holder is in reasonable balance with the prevention of an accelerated depreciation of the right-of-way that would otherwise result from the excavation, disturbance or damage to the right-of-way; and (e) The likelihood that the particular method of restoration would be effective in slowing the depreciation of the fight-of-way that would otherwise take place. (3) City Restoration. Only upon prior written approval of the Public Works Director, the permit holder may request restoration assistance through the Public Works Department. If the City agrees to perform the work, the permit holder shall pay to the City, in advance; a cash deposit equaling 150% of the estimated restoration cost. The restoration cost shall be estimated by the Public Works Director or designee shall include an estimate of the degradation cost. The estimate of the degradation cost shall be based upon criteria adopted by the Minnesota Public Utilities Commission and found on the ROW Permit Fee Schedule. Following completion of the restoration, any funds in excess of the actual restoration cost and the degradation cost shall be returned to the permit holder. Notwithstanding this section, the City shall have no obligation to honor the permittee's restoration request. (4) Guarantees. The permit holder shall guarantee its work and shall maintain it for twenty-four (24) months following its completion. During this twenty-four month period it shall, upon notification from the Public Works Director or Assistant City Engineer, promptly correct all restoration work to the extent necessary, using the method required by the Engineering Department. (5) Permit Limitations. Permits issued pursuant to this Section are valid only for the area of the right-of-way specified in the application and the permit and only for the dates so specified. No work shall be extended beyond the permitted area or dates without a new permit being procured therefore, provided the Public Works Director may extend the completion date of the work in accordance with §6.147(1) of this Code. Denial of Permit. The Public Works Director may deny a permit due to the following: (1) Failure to register pursuant to this ordinance. (2) A proposed excavation within a street or sidewalk surface that has been constructed or reconstructed within the preceding five years unless the Public Works Director or City Manager determines that no other locations are feasible or when necessitated by an emergency. (3) The applicant is subject to revocation of a prior permit issued pursuant to this ordinance. (4) The proposed schedule for the work would conflict or interfere with an exhibition, celebration, festival or any other similar event. (5) The right-of-way would become unduly congested due to the proposed facilities and equipment when combined with other uses in the right-of-way. (6) Businesses or residences in the vicinity will be unreasonably disrupted by the work. City Council Minutes April 22, 2002 Page 21 of 23 (7) The proposed schedule conflicts with scheduled total or partial reconstruction of the tight-of-way. (8) The applicant fails to comply with the requirements of this Section or other Sections of this Code. Emergency Work. A registrant may proceed to take whatever actions are necessary to respond to an emergency. Within two business days after the occurrence of the emergency the registrant shall apply for the necessary permits, pay the fees associated therewith and fulfill the rest of the requirements necessary to bring itself into compliance with this Section for the actions it took in response to the emergency. If the Public Works Director becomes aware of an emergency, the Director shall attempt to contact the local representative of each registrant affected, or potentially affected, by the emergency. In any event, the Public Works Director may take whatever action deemed necessary to respond to the emergency, the cost of which shall be borne by the registrant whose facilities or equipment occasioned the emergency. Revocation of Permits. The Public Works Director or City Manager may revoke any permit, without a fee refund, if there is a substantial breach of the terms and conditions of any statute, this Code, rule or regulation, or any condition of the permit which substantial breach shall continue uncured for 10 calendar days after the issuance of a written order of the Public Works Director. A substantial breach of a permit holder shall include, but shall not be limited to, the following: (1) The violation of any material provision of the permit; (2) An evasion or attempt to evade any material provision of the permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the City or its citizens; (3) Any material misrepresentation of fact in the application for a permit; (4) The failure to maintain the required bonds and insurance; (5) Failure to complete the work in a timely manner; (6) The failure to correct a condition indicated on an order issued by the Engineering Department. Appeal. (~) Filing of Appeal. Any person aggrieved by, (i) the denial of a permit application, (ii) the denial of a registration, (iii) the revocation of a permit or, (iv) the application of the fee schedule imposed by the City may appeal to the Council by filing a written notice of appeal with the Administrative Secretary. Said notice must be filed within 20 days of the action causing the appeal. (2) Notice of Hearing. The Council shall hear the appeal no later than 30 days after the date the appeal is filed. Notice of the date, time, place, and purpose of the heating shall be mailed to the appellant not less than 10 days before the date of the heating. (3) Hearing and Decision. The Council shall, at such heating, hear and consider any evidence offered by the appellant, the Public Works Director or Engineering Department, and anyone else wishing to be heard. After heating the oral and written views of all interested persons, the Council shall make its decision at the same meeting or at a specified future meeting. Mavvine. Within 120 days following completion of any work pursuant to a permit, the registrant shall provide the Public Works Director accurate maps and drawings certifying the "as-built" location of all facilities and equipment installed, owned and maintained by the registrant. Such maps and drawings shall indicate both the horizontal and vertical location of all facilities and equipment and shall be provided in a format consistent with the City's electronic mapping system. Failure to provide maps and drawings in accordance with this subsection shall be grounds for revoking the permit holder's registration. Location of Facilities and Equipment. (1) Under grounding by Telecommunications Right-of-Way Users. Any new construction and the installation of new equipment and replacement of old equipment of telecommunication right-of-way users shall be underground or contained within buildings or City Council Minutes April 22, 2002 Page 22 of 23 other structures in conformity with applicable codes. Provided, telecommunications right-of-way users may attach equipment and facilities to existing poles and structures maintained by a service or utility service. (2) Corridors. The Public Works Director may assign specific corridors within the right-of-way, or any particular segment thereof as may be necessary, for each type of equipment that is or, pursuant to current technology, the Public Works Director expects will someday be located within the right-of-way. All permits issued by the Public Works Director involving the installation or replacement of equipment shall designate the proper corridor for the equipment at issue. (3) Limitation of Space. To protect health and safety, the Public Works Director shall have the power to prohibit or limit the placement of new or additional equipment within the right-of-way if there is insufficient space to accommodate all of the requests of registrants or persons to occupy and use the right-of-way. In making such decisions, the Public Works Director shall strive to the extent possible to accommodate all existing and potential users of the right-of-way, but shall be guided primarily by considerations of the public interest, the public's needs for the particular utility service, the condition of the right-of-way, the time of year with respect to essential utilities, the protection of existing equipment in the right-of-way, and future City plans for public improvements and development projects which have been determined to be in the public interest. Relocation. (1) Relocation for City Purposes. A registrant shall promptly but in no event more than 120 days of the City's request, permanently remove and relocate at no charge to the City, any facilities or equipment if and when made necessary by a change in the grade, alignment or width of any right-of-way, by the construction, maintenance or operation of any City facilities or to protect the public health, safety and welfare. The registrant shall restore any right-of-way to the condition it was in prior to removal and relocation. (2) Under grounding of Relocated Telecommunications Facilities. A telecommunications right-of-way user shall relocate all above ground facilities and equipment to underground locations at its own cost and expense at the City's request when, (i) the City requires the relocation of all telecommunications facilities and equipment to underground locations or ii) structures or poles to which the registrant's facilities or equipment is attached are abandoned or removed by the owner of such structures or poles. Right-of-Way Vacation. (1) Reservation of Right. If the City vacates a right-of-way which contains the equipment of a registrant, and if the vacation does not require the relocation of registrant facilities and equipment, the City shall reserve, to and for itself and all registrants having facilities and equipment in the vacated right-of-way, the right to install, maintain and operate any facilities and equipment in the vacated right-of-way and to enter upon such right-of-way at any time for the purpose of reconstruction, inspecting, maintaining or repairing the same. (2) Relocation of Equipment. If the vacation requires the relocation of registrant facilities and equipment; and (a) if the vacation proceedings are initiated by the registrant, the registrant must pay the relocation costs; or (b) if the vacation proceedings are initiated by the City, the registrant must pay the relocation costs unless otherwise agreed to by the City and the registrant; or (c) if the vacation proceedings are initiated by a person or persons other than the registrant or permit holder, such other person or persons must pay the relocation costs. Abandoned and Unusable Equipment. (1) Discontinued Operations. A registrant who has determined to discontinue its operations in the City must either: (a) Provide information satisfactory to the Public Works Director that the registrant's obligations for its equipment in the right-of-way under this ordinance have been lawfully assumed by another registrant; or (b) Submit to the Public Works Director an action plan for the removal or abandonment of equipment and facilities. The Public Works Director shall require removal of such facilities and equipment if the Public Works Director determines such removal is necessary to protect the public health, safety and welfare. The Public Works Director may require the registrant to post a bond in an amount sufficient to reimburse the City for reasonably anticipated costs to be incurred in removing the facilities and equipment. (2) Abandoned Facilities Equipment. Facilities and equipment of a registrant located on the surface of or above a right-of-way or on City property that, for two years, remains unused shall be deemed to be abandoned. Such abandoned equipment is deemed to be a nuisance. The City may exercise any remedies or rights it has at law or in equity, including, but not limited to, (i) abating the nuisance, or (ii) requiring removal of the equipment or facilities by the registrant, or the registrant's successor in interest. City Council Minutes April 22, 2002 Page 23 of 23 (3) Removal of Underground Equipment. Any registrant who has unusable and abandoned underground facilities or equipment in any right-of-way shall remove it from that right-of-way during the next scheduled excavation, to the extent such facilities or equipment is uncovered by such excavation unless this requirement is waived by the Public Works Director or City Manager. Indemnification and Liability. (~) Limitation of Liability. By reason of the acceptance of a registration or the grant of a right-of-way permit, the City does not assume any liability (a) for injuries to persons, damage to property, or loss of service claims by parties other than the registrant or the City, or (b) for claims or penalties of any sort resulting from the installation, presence, maintenance, or operation of equipment by registrants or activities of registrants. (2) Indemnification. By registering with the City, a registrant agrees, or by accepting a permit under this Section, a permit holder is required, to defend, indemnify, and hold the City whole and harmless from all costs, liabilities, and claims for damages of any kind including the City's reasonable attorney fees and costs arising out of the construction, presence, installation, maintenance, repair or operation of its equipment, or out of any activity undertaken in or near a right-of-way, whether or not any act or omission complained of is authorized, allowed, or prohibited by a right-of-way permit. It further agrees that it will not bring, nor cause to be brought, any action, suit or other proceeding claiming damages, or seeking any other relief against the City for any claim nor for any award arising out of the presence, installation, maintenance or operation of its equipment, or any activity undertaken in or near a right-of-way, whether or not the act or omission complained of is authorized, allowed or prohibited by a right-of-way permit. The foregoing does not indemnify the City for its own negligence except for claims arising out of or alleging the City's negligence where such negligence arises out of or is primarily related to the presence, installation, construction, operation, maintenance or repair of said equipment by the registrant or on the registrant's behalf, including but not limited to, the issuance of permits and inspection of plans or work. This section is not, as to third parties, a waiver of any defense or immunity otherwise available to the registrant or to the City and the registrant, in defending any action on behalf of the City, shall be entitled to assert in any action every defense or immtmity that the City could assert in its own behalf. Right-of-Way Management Regulation Fees: Permit and degradation fees are found on the Right-of-Way Permit Fee Schedule. Registration fees are found on the permit form. This Ordinance shall be in full force and effect from and after thirty days (30) days after its passage. First Reading: March 25, 2002 Second Reading: April 22, 2002 Date of Passage: April 22, 2002 Offered by: Seconded by: Roll Call Williams Szurek Aye: Peterson, Szurek, Wyckoff, Williams Nay: Nawrocki