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HomeMy WebLinkAbout2005/12/19 - ADMIN - Agenda Packets - City Council - RegularAGENDA SUMMARY CITY COUNCIL MEETING ST. LOUIS PARK, MINNESOTA December 19, 2005 7:30 PM 7:20 p.m. (Economic Development Authority Meeting) 7:30 p.m. City Council Meeting 1. Call to Order a. Pledge of Allegiance b. Roll Call 2. Presentations 2a. Farewell to Sue Santa, departing Ward 3 Councilmember and Jim Brimeyer, departing Ward 4 Councilmember 3. Approval of Minutes 3a. City Council Minutes of December 5, 2005 Action: Corrections/amendments to minutes - Minutes approved as presented 4. Approval of Agenda and Items on Consent Calendar NOTE: The Consent Calendar lists those items of business which are considered to be routine and/or which need no discussion. Consent items are acted upon by one motion. If discussion is desired by either a Councilmember or a member of the audience, that item may be moved to an appropriate section of the regular agenda for discussion. Action: Motion to approve the agenda as presented and to approve items listed on the consent calendar (Alternatively: Motion to add or remove items from the agenda, motion to move items from consent calendar to regular agenda for discussion and to approve those items remaining on the consent calendar). 5. Boards and Commissions 6. Public Hearings 6a. Public Hearing to consider granting an off-sale intoxicating liquor license to Trader Joe’s East, Inc., DBA Trader Joe’s, 4500 Excelsior Boulevard, St. Louis Park, MN Recommended Action: Mayor to close the public hearing. Motion to approve an off- sale intoxicating liquor license. 6b. Time Warner Cable TV Franchise Renewal Public hearing to discuss the status of the franchise renewal process with Time Warner Cable, Inc. Recommended Action: Motion to close the public hearing, approve first reading of the attached franchise renewal ordinance and set second reading for January 3, 2006, and extend the term of the current franchise agreement to January 3, 2006. 7. Requests, Petitions, and Communications from the Public - None 8. Resolutions, Ordinances, Motions 8a. Comcast Transfer Proposed transfer of the Cable Communications Franchise Ordinance and cable system from Time Warner Cable, Inc. to Comcast Cable Communications, LLC. Recommended Action: Motion to adopt attached resolution approving the transfer of the Cable Communications Franchise Ordinance and cable system from Time Warner Cable, Inc. to Comcast Cable Communications, LLC. 8b. Adopt 2006 Property Tax Levy , 2006 Budget, 2005 Revised Budget, HRA Levy, 2004 Fund Balance Allocations, and 2006 – 2010 Capital Improvement Program This is the final step in approving the 2006 property tax levy, 2006 budget, 2005 revised budget, 2006 HRA levy, 2004 Fund Balance Allocations, and 2006 – 2010 Capital Improvement Program. Recommended Action: 1) Motion to adopt resolution approving the 2005 Property Tax Levy collectible in 2006, adopting the Budget for 2006, and adopting the Revised Budget for 2005 2) Motion to adopt a resolution authorizing the HRA Levy for 2006 3) Motion to adopt a resolution transferring reserves out of the General Fund 4) Motion to approve 2005 – 2009 Capital Improvement Program 5) Motion to adopt a resolution approving an amendment to the Comprehensive Plan Year 2000 to Year 2020 for the City per Minnesota Statutes, incorporating the Capital Improvement Program (CIP) Year 2005 to Year 2009; approve summary resolution for publication 8c. 1st Reading of Fire Department Service Fees This action will establish Fire Department fees for specific Services related primarily to hazardous material incidents and fires on railroad right-of-way. Recommended Action: Motion to approve first reading of an ordinance establishing Fire Department Service Fees and set second reading for January 3, 2006. 8d. Excelsior and Grand – Phase NW Preliminary and Final Plat of Park Commons East 4th Addition; Major Amendment to the Park Commons East Planned Unit Development for Final PUD approval for Phase NW. Location: 4730 Park Commons Drive Applicant: TOLD Development Case No.: 05-64-PUD and 05-65-S Recommended Action: • Motion to adopt a resolution approving the Preliminary and Final Plat of Park Commons East 4th Addition. • Motion to adopt a resolution to approve a Major Amendment to the Park Commons East PUD granting Final PUD approval for Phase NW (Excelsior & Grand Phase NW) subject to conditions recommended by staff. 8e. Request of Julie L. Murphy for a Comprehensive Plan Map Amendment from Industrial to Medium Density Residential; and a Zoning Map Amendment from General Industrial (IG) to Two Family Residential (R-3) Location: 6300-6312 Cambridge Street Applicant: Julie L. Murphy Case No.: 05-50-CP and 05-51-Z Recommended Action: • Motion to adopt a resolution to deny the request for a Comprehensive Plan amendment to change the land use designation from Industrial to Medium Density Residential. • Motion to adopt a resolution to deny the request for a zoning map amendment to change the zoning designation from IG – General Industrial to R3 – Two Family Residential. 8g. Authorization to Direct Staff to Prepare the Required Documents for a Deferred Loan to the Louisiana Court Limited Partnership to Assist with Capital Improvements at Louisiana Court Recommended Action: Motion: Staff recommends that the Council approve Resolution directing staff to undertake the steps required to utilize CDBG and TIF funds from the Park Center TIF District to finance a deferred loan for $400,000 to the Louisiana Court Limited Partnership, and prepare the necessary documents in accordance with the terms as discussed with the Council for approval. 8h. Resolution to confirm 2006 employee compensation Recommended Action: Motion to adopt a resolution confirming a 3% general increase for non-union employees, setting the salary for City Manager, updating the car allowance in the Personnel Manual and increasing Performance Program Pay for Paid-on-Call Firefighters for 2006. 9. Communications 10. Adjournment Auxiliary aids for individuals with disabilities are available upon request. To make arrangements, please call the Administration Department at 952/924-2525 (TDD 952/924-2518) at least 96 hours in advance of meeting. 8f. First Reading of a Zoning Ordinance Amendment to create a category titled “Places of Assembly” and allow such uses in the C-1, C-2 and O zoning districts by Conditional Use Permit. Case No. 05-60-ZA Recommended Action: Motion to approve first reading of Zoning Ordinance amendment, and set second reading for January 3, 2006. ST. LOUIS PARK CITY COUNCIL MEETING OF December 19, 2005 SECTION 4: CONSENT CALENDAR NOTE: The Consent Calendar lists those items of business which are considered to be routine and/or which need no discussion. Consent items are acted upon by one motion. If discussion is desired by either a Councilmember or a member of the audience, that item may be moved to an appropriate section of the regular agenda for discussion. 4a. Motion to approve the St. Louis Park Community Celebration Service Agreement with Parktacular, Inc. 4b. Motion to approve Resolution accepting Work Copeland Building Corp for Construction of Browndale and Nelson Park Buildings City Project No. 20050090 Contract No. 45-05 4c. Motion to authorize execution of a one (1) year extension to Contract No. 122-04 with ENSR Consulting and Engineering for consultant services related to the implementation of the Reilly Tar & Chemical Corporation (Reilly) Remedial Action Plan (RAP) during year 2006. 4d. Motion to authorize execution of a contract extension to Contract No. 1893 with Severn Trent Services (STL - Denver) for laboratory services related to the Reilly Tar & Chemical Corporation groundwater sampling program through year 2006. 4e. Motion to approve Resolution authorizing Gambling Premises Permit for Community Charities of Minnesota operating at TexaTonka Lanes, 8200 Minnetonka Boulevard. 4f. Motion to authorize execution of a contract in the amount of $60,000.00 with Ostvig Tree, Inc. for 2006 Tree Pruning (trimming). 4g. Motion to adopt Resolution rescinding parking restrictions on the south side of Republic Avenue from the driveway apron in the 1st Street Northwest right-of-way to a point 110 feet to the northwest. Traffic Study No. 592. 4h. Motion to approve Resolution authorizing Renewal of Gambling Premises Permit for Hopkins Raspberry Festival Association, Inc., operating at Al’s Bar, 3912 Excelsior Boulevard. 4i. Motion to adopt Resolution accepting a grant from the Minnesota Department of Natural Resource (DNR) for partially funding the construction of a local trail connection to the regional trail system 4j. Motion to approve Resolution Accepting Work from Penn Contracting for Watermain Relocation City Project No. 2005-0100 Contract No. 33-05 4k. Motion to accept Joint School/City Minutes of November 29, 2005 for filing 4l. Motion to accept Planning Commission Minutes of November 2, 2005 for filing 4m. Motion to accept Planning Commission Minutes of November 16, 2005 for filing 4n. Motion to accept Telecommunication Commission Minutes of October 6, 2005 for filing 4o. Motion to accept Housing Authority Minutes of November 9, 2005 for filing 4p. Motion to accept vendor claims for filing (supplement) AGENDA SUPPLEMENT CITY COUNCIL MEETING ***December 19, 2005*** Items contained in this section are those items which are not yet available in electronic format and which are identified in the individual reports by inclusion of the word “Supplement”. St. Louis Park Council Meeting Item: 121905 - 3a - Minutes City Council Dec. 5, 2005 Page 1 UNOFFICIAL MINUTES CITY COUNCIL MEETING ST. LOUIS PARK, MINNESOTA December 5, 2005 1. Call to Order Mayor Jacobs called the meeting to order at 7:30 pm. Council members present: Mayor Jeff Jacobs, John Basill, Jim Brimeyer, Phil Finkelstein, Paul Omodt, Susan Sanger and Sue Santa Staff present: Associate Planner (Mr. Fulton), City Assessor (Mr. Stepnik), City Clerk (Ms. Stroth), City Engineer (Mr. Brink), City Manager (Mr. Harmening), City Attorney (Mr. Scott), Community Development Director (Mr. Locke), Engineering Development Manager (Mr. Olson), Finance Director (Ms. McGann), Planning/Zoning Supervisor (Ms. McMonigal), Housing Program Coordinator (Kathy Larsen) and Recording Secretary (Ms. Stegora-Peterson). 2. Presentations - None 3. Approval of Minutes 3a. Study Session Minutes of October 24, 2005 Councilmember Finkelstein indicated on page four, second paragraph, insert “to the extent reasonably practical” after “was the … sensitivity,”. Councilmember Basill noted on page four, fourth paragraph from the bottom, “He was concerned with a public/partner model.” should read, “He was concerned with a public model. If they did prefer to do it, it should be a private/public partnership.” The minutes were approved as corrected. 3b. Study Session Minutes of November 14, 2005 Councilmember Basill stated on page three, paragraph three, insert, “to be taken separately” after “Councilmember Basill felt they should keep it on the list of properties”. Councilmember Finkelstein indicated on page seven, regarding if a look back provision, insert, “If an arrangement for tax increment financing is worked out with the developer, that there is a look back. The developer was willing to do that.” The minutes were approved as corrected. St. Louis Park Council Meeting Item: 121905 - 3a - Minutes City Council Dec. 5, 2005 Page 2 4. Approval of Agenda and Items on Consent Calendar NOTE: The Consent Calendar lists those items of business which are considered to be routine and/or which need no discussion. Consent items are acted upon by one motion. If discussion is desired by either a Councilmember or a member of the audience, that item may be moved to an appropriate section of the regular agenda for discussion. 4a Approve Municipal Consent Request for Trunk Highway 100 Temporary Lane Addition Project: Schedule a Public Hearing for January 17, 2006 at which Mn/DOT shall present the final layout for State Project 2734-43. 4b Adopt Resolution No. 05-173 for Support for Trunk Highway 7/Wooddale Avenue Interchange Improvements. 4c Authorize advertisement for bids to acquire the physical equipment necessary to establish a pilot wireless network and to issue a Request for Proposals as a means to select a lead private sector partner (and possible supporting partners) to deliver and manage wireless high speed internet services to subscribers. 4d Adopt Resolution No. 05-174 Authorizing Special Assessment of Dutch Elm Diseased Trees 4e Approve Resolution No. 05-175 establishing a special assessment for the installation of a fire suppression sprinkler system at 6425 Cambridge Street 4f Approve Second Reading and adopt Ordinance No. 2304-05 setting 2006 rates charged for Water, Sanitary Sewer, Solid Waste, and Storm Water Utility, approve summary, and authorize publication. 4g Approve the Second Reading and adopt Ordinance No. 2305-05 amending the Official Zoning Map for property at 5616 36th St. W., 3550 State Hwy. 100 S., 3501 Xenwood Ave. S. and 5626 36th St. W., Hoigaard’s Village, approve summary, and authorize publication. 4h Approve the Second Reading and adopt Ordinance No. 2306-05 vacating portion of alley lying between 36th Street W. and 35 ½ St. W., Hoigaard’s Village approve summary and authorize publication. 4i Approve the Second Reading and adopt Ordinance No. 2307-05 Sam’s Club – vacating a utility easement across portion of 3745 Louisiana Ave. S., approve summary, and authorize publication. 4j Approve Second Reading of Zoning Ordinance No. 2308-05 Amendment to change the zoning on the property at 5330 Cedar Lake Road from IP, Industrial Park to C-1, Neighborhood Commercial, adopt ordinance, approve summary, and authorize publication. Case Nos. 05-35-ZA 4k Accept vendor claims for filing (supplement) Mr. Harmening indicated the applicant for item 8d requested it be rescheduled for December 19, 2005. It was moved by Councilmember Santa, seconded by Councilmember Sanger, to approve the Agenda, rescheduling item 8d for December 19, 2005, and items listed on the Consent Calendar. The motion passed 7-0. 5. Boards and Commissions - None St. Louis Park Council Meeting Item: 121905 - 3a - Minutes City Council Dec. 5, 2005 Page 3 6. Public Hearings 6a. Public Hearing to consider granting an On-Sale Wine and 3.2 Malt Liquor License with Sunday sales for Best of India, Inc. located at Texa Tonka Shopping Center, 8120 Minnetonka Blvd. in St. Louis Park. Ms. Stroth presented the staff report. Mayor Jacobs opened the public hearing. No speakers present. The public hearing was closed. Councilmember Santa asked the hours? Ms. Stroth replied 11:30 a.m. -2:30 p.m. and 5:00 p.m. - 9:00 p.m. Monday through Thursday and until 10:00 pm Friday, Saturday, and Sunday. It was moved by Councilmember Santa, seconded by Councilmember Omodt, to approve on-sale wine and 3.2 malt liquor license with Sunday sales. The motion passed 7-0. 6b. Assessment Hearing: Alley Paving – 2900 block of Ottawa and Princeton Avenue - Project No. 2005-1800 Resolution No. 05-166 Mr. Olsen presented the staff report. Mayor Jacobs opened the public hearing. No speakers present. The public hearing was closed. Councilmember Sanger asked if staff if this was consistent with practices for alley assessments with irregularly shaped alleys? Mr. Stepnik replied he was comfortable and believed it was a fair assessment. It was moved by Councilmember Sanger, seconded by Councilmember Finkelstein, to adopt Resolution No. 05-166 establishing the assessment for Project No. 2005-1800. The motion passed 7-0. 6c. Public Hearing on the 2006 Budget and Property Tax Levy Ms. McGann presented the staff report. Mayor Jacobs opened the public hearing. Stan Jurgensen, 2309 Westridge Ln, stated his concern regarding who determined the priorities. He said money comes from individuals, whose income had gone up at the most 3-4%. Spending in St. Louis Park had gone up 13%, plus an additional 3-4% for street repairs and infrastructure. He asked the Council to take that into consideration and to prioritize. St. Louis Park Council Meeting Item: 121905 - 3a - Minutes City Council Dec. 5, 2005 Page 4 Josh Gruber, 4608 39th St W, stated over the last five years, the City’s portion of his total tax bill had gone up from about 1/6 to between ¼ and 1/3. This is no thanks to Governor Pawlenty’s “no new taxes” pledge. His total tax bill was up by 24%. The increase in the limited market value had an automatic accelerator to 15% and their incomes were not going up as fast as the increases in the tax bills. Because of the way the City develops with tax increment financing and that non-profits do not contribute toward paying property tax bills, the proportion paid by residential property tax owners is an onerous burden. Mayor Jacobs asked staff to discuss a shift in state law from commercial and industrial property more to residential. Ms. McGann replied they changed the class rates on commercial and industrial properties, so they pay less than they used to. Mayor Jacobs asked if that was State law? Ms. McGann replied yes. Councilmember Finkelstein stated they were now receiving approximately $800,000/year in State Aid. Four years ago it was about $2.2 million. They were still expected to provide the same services, if not more. In addition, there was a concern about non-profits carrying their fair share. They can’t get real estate taxes, however for pavement management system, half of that is being funded by real estate taxes, the other half is being paid for by franchise fees on gas and electric, which non profits have to pay. Ms. McGann added that residential customers pay $1.25/month on each of the gas and electric bill and businesses were charged at a different rate. Councilmember Sanger asked staff to explain changes in the limited market value and how it impacted the valuation of people’s homes? Ms. McGann replied if they looked at residential properties for the valuation year of 2006, the overall market valuation went up approximately 10%. However, because there is a limited market value regulation, many of the homes were still playing “catch-up” to even the market value. Taxable value and market value are separate items. Bob Burgett, 2100 Parklands Rd, indicated he was a new resident. His taxes were going up 51% (only the St. Louis Park portion) and he realized part of that was because he paid more than what it had been taxed at before and did some remodeling. He wanted to find out what his options were. His lot was subdivided and he wanted to be sure he was only being taxed on the half he lived on. Part of the attraction for moving there was reasonable taxes. Mayor Jacobs suggested he speak with Mr. Stepnik after the meeting. Mayor Jacobs closed the public hearing and noted it would be on the December 19th agenda. 6d. Time Warner Cable TV Franchise Renewal Mr. Harmening stated they were asking to defer this item because they wanted to be able to devote sufficient time to another item on the agenda. It was moved by Councilmember Brimeyer, seconded by Councilmember Santa to continue the public hearing and extend the term of the current franchise to December 19, 2005. St. Louis Park Council Meeting Item: 121905 - 3a - Minutes City Council Dec. 5, 2005 Page 5 Councilmember Brimeyer asked if they had a deal, but not in writing? Mr. Harmening replied they were very close to having a deal and the attorney’s were working through the details in the franchise document. The motion passed 7-0. 7. Requests, Petitions, and Communications from the Public – None 8. Resolutions, Ordinances, Motions 8a. Comcast Transfer It was moved by Councilmember Finkelstein, seconded by Councilmember Santa, to continue transfer of the Cable Communications Franchise Ordinance and cable system from Time Warner Cable, Inc. to Comcast Cable Communications, LLC to December 19, 2005 Council meeting. The motion passed 7-0. 8b. Request by SilverCrest Properties for a Major Amendment to a Planned Unit Development, Location: 3601 Park Center Boulevard, Applicant: SilverCrest Properties, Case No: Case No. 05-33-PUD Resolution No. 05-167 Ms. McMonigal reviewed the staff report. She noted the resolution should be revised for a minimum of 232 parking spaces. It was moved by Councilmember Brimeyer, seconded by Councilmember Omodt, to adopt Resolution No. 05-167, authorizing a Major Amendment to the Planned Unit Development for the elimination of age restrictions at the Park Summit Condominiums, with conditions and requiring a minimum of 232 parking spaces. Councilmember Sanger stated she continued to oppose this because they had a goal of having a variety of housing options and she was hearing a demand for a senior only condominium building. While she appreciated the work to change the proposal, they hadn’t changed the elimination of age restriction and there was no restriction on whom they sold it to. Councilmember Santa believed it was a marketing issue and that people that ended up living there would fall in the age range considered senior, but didn’t want to be labeled. Councilmember Finkelstein believed with the delay in the project and the revisions made (making it shorter by two stories, having fewer units, taking the office out of the building, marketing it to seniors together with the earlier addition of public art and the public transit center) that this was an acceptable project, although he preferred to see more variety in terms of a senior rental building. He realized there had been a significant delay, but thought it was a better project and thanked Councilmember Basill for his work. The motion passed 6-1, with Councilmember Sanger opposed. St. Louis Park Council Meeting Item: 121905 - 3a - Minutes City Council Dec. 5, 2005 Page 6 8c. Disposition and Retention of Excess Public Land for Building Single Family Homes Resolution No.s 05-168, 05-169, 05-170, 05-171 and 05-172 Mr. Locke discussed the staff report and resolutions. Ms. Larsen reported on the resolutions. Ron Datches, Fern Hill neighborhood, stated he was interested in purchasing the 2600 Nachez property. If he were not able to purchase, he recommended the property be sold to a prospective homeowner. There had been opposition to this from a small vocal minority consisting primarily of people who lived adjacent and would be unhappy to see their views changed. Their arguments were primarily about environment which implied if they wanted to build a home there they must hate grass and trees, which was not the case. This lot is not woodland or a nature preserve or impacting the wetland. It was merely adjacent to the wetland. It is a platted parcel obtained through tax forfeiture and zoned and designated for a single-family home. It was just like the other homes there. No one was proposing anything but a home that fit with the neighborhood. The Council encourages move-up housing and he thought this would be an ideal spot to build a home. A minimal amount of trees would be impacted. Proceeds from the sale could be used to purchase trees to place around the city. They asked the task force to develop objective criteria when evaluating the sale of these parcels and this parcel met the criteria. He urged the Council to go ahead with the sale of this property. David Jenkins, 1841 Pennsylvania Av S, indicated he owned Eclipse Electric, 6512 Walker Street. Sometime between 1963 and 1968 Eclipse was assessed $5,000 to buy a parcel of property at 6534 Walker. According to Hennepin County, 6534 was now owned by 19th Century Enterprises a limited liability corporation, which is the parking lot they were trying to sell. He believed they paid for it. Mr. Reese from Reese’s Restaurant had also been assessed, and had to buy a parcel of property and build a parking lot for his off-street parking. If the plan was to sell this property, he thought they should take the assessment into consideration. Other surrounding businesses could not use the lot. If they had to pay for this off-street parking, and now they were going to sell it to local businesses to use for off-street parking, that didn’t seem right. Ms. Larsen stated that the ownership of the properties was confusing. The City owns the parcel. When they reviewed this with the attorney’s, this parcel and two others showed up in the Hennepin County database as a different owner. That hadn’t been cleared up because they were going through this process. The City has rights to that property, it just hadn’t been certified as such. Something happened in 1968 where the recording didn’t occur like it should have. Councilmember Finkelstein stated if they didn’t own it, they couldn’t sell it. They would only sell it if they own it. Mr. Jenkins noted Hennepin County records say that market value for the property and the total tax is zero. Ms. Larsen responded that was because the City owned it, so there is no tax. They hadn’t taken the legal step of clearing that up because they wanted to get through this process and determine which lots were going to be sold. St. Louis Park Council Meeting Item: 121905 - 3a - Minutes City Council Dec. 5, 2005 Page 7 Mr. Jenkins indicated he had spoken with other businesses that would not use the parking lot. Mayor Jacobs stated that the recommendation was to authorize the sale and before a closing could occur, they would need to get formal title work done to make certain that the City owned the lot and they had clear title to sell it. Mr. Jenkins replied he would like to see some consideration when they sell the property because he made a $5,000 investment. Councilmember Santa stated her understanding was in the early 1960’s, there was an assessment to nearby property owners who were using these lots for their proof of parking and that the assessment went toward the paving and initial maintenance of the area. As time had gone by, that was all that happened. Ms. Larsen added that assessments were made in the 1960’s when the City acquired the properties and developed them as municipal lots. Since then, there had been no added assessments or collections from any of the properties that use the parking lots. Councilmember Santa asked if those assessments were for maintenance. Ms. Larsen replied correct. That was why they included selling or leasing because the lease would cover maintenance costs of the parking lots used by certain businesses. Mr. Harmening clarified the correct property owners were assessed for the construction of the parking lot, but for the last 30-40 years, the City had been paying for maintaining it and plowing it. The Council had asked them to work with adjacent properties owners to see if they would be willing to help with the maintenance costs, rather than all taxpayers in the City paying. The idea was not to sell it for development, but to have it maintained for parking purposes. Mr. Jenkins believed no business ever used the parking lot. He had six employees and they wouldn’t walk a block and a half to use the lot. The other businesses were not able to use the lot. No business that was assessed used the parking lot. Jennifer Wood, indicated she was a former resident and was actively watching for homes in the area and would like to move back to start a family. She was interested in one of the lots. She moved out because she didn’t find a larger home and most of the homes she had seen in the area weren’t big enough for a family. Kathy Wright, 3860 Brunswick, stated she would like the Council to approve the sale of the three lots in resolution two. She was an interested party and thought it would be in the best interest of the City to sell the lots, which would increase the tax base for the City. John Lawson, 4320 Browndale, indicated he was speaking about the parcel at 4525 Morningside Avenue, which the neighborhood had always considered as part of the park. The neighborhood put together a petition of over 200 people to keep it that way. There was a home for sale on Browndale and three other homes on Coolidge that had been for sale for months. When he at the City website and looked at the picture of this property, it looked like a huge vacant space which was inaccurate. Now there is a new Rec. Center there and they needed that green space to be part of the park. St. Louis Park Council Meeting Item: 121905 - 3a - Minutes City Council Dec. 5, 2005 Page 8 It was moved by Councilmember Brimeyer, seconded by Councilmember Santa, to approve Resolution No. 05-168 related to disposition and/or retention of 17 public parcels. Councilmember Sanger indicated one of her concerns goes to the parking lots and making sure that whatever they did, they retained public access. She was particularly concerned about the parcel on Englewood Avenue because there are quite a few adjacent businesses whose employees and customers may need to use those spaces. It would be problematic if it were sold or leased for the exclusive use of one particular parcel. Ms. Larsen responded the resolution states, “ensure that parking remains available to the general public at these lots.” Councilmember Basill stated he supported the motion, but made a friendly amendment that the one at 3515 Belt Line Boulevard there be a message, “if in the future it is developed, consideration will be given to single-family homes,” so future Council’s will know what they were thinking. Mayor Jacobs noted that was already in the resolution. The motion passed 7-0. It was moved by Councilmember Brimeyer, seconded by Councilmember Santa, to adopt Resolution No. 05-169 authorizing sale of property located at 2600 Natchez Avenue South. Councilmember Sanger stated she was opposed to the sale of the parcel for this purpose. A speaker pointed out that this parcel met the objective criteria that were established by the task force and that was correct. The concern she had was that the Council did not have input into the criteria the task force used and in her view the criteria needed to be expanded, a number of other criteria needed to be considered in light of this parcel and perhaps the others. One was the environmental issues. This parcel is located immediately adjacent to a wetland and she had concerns if a house is built there, lawn chemicals may enter into the wetland. In the middle of this parcel there are two beautiful mature oak trees, which have to be taken down to build a house. There is a lot of flooding in this area and she was concerned, because this parcel was in a flood plain, that they would be setting themselves up for flooding problems if a house is built. The Council had authorized the expenditure of millions of dollars in flood control programs over the last several years and it didn’t make sense to build in flood plains. Councilmember Finkelstein thanked staff for their work and doing what the Council had asked them to do. He also thanked the task force and the community for their comments. Initially he was in favor of selling all three of these lots in addition to the others. He was concerned if they removed one or two properties they would end up with nothing. Listening to the comments, he realized he might not be right. During the election Paul Carver believed they should find the highest use of the land, keeping in mind their role as public steward and these properties belonged to all of us. Wood Lane is by Minnehaha Creek and presents an opportunity to use the creek. He would give the Minnehaha Watershed District six months to buy the land, if they didn’t, turn it into a rustic landing. 26th and Natchez was the toughest. He walked in the woods and realized finding the St. Louis Park Council Meeting Item: 121905 - 3a - Minutes City Council Dec. 5, 2005 Page 9 highest use of that land and keeping in mind having an environment trust fund or something to protect the nature. Why would they tear it down to put up a home? He was convinced that a home would not work with the oak trees. Some of the trees are close to 100 years old and couldn’t be replaced. There are many species of wildlife. It was something they could protect. He suggested the neighborhood take a leading role to take care of the property. He would oppose the sale of 26th and Nachez. Regarding Browndale Park, it was a lot. Kids may have played there, but it was a lot. There is a house immediately next to it and across from it. He felt putting a home there so another family can enjoy St. Louis Park was the highest use. There is a beautiful park right behind it and the entire neighborhood can enjoy and he didn’t think developing this into a lot would be taking that away. The motion passed 4-3, with Councilmember’s Finkelstein, Omodt and Sanger opposed. Councilmember Brimeyer felt they should hang onto the property at 5609 Wood Lane because the Watershed District had indicated some interest in it. He was not sure how far they l ooked into the restrictions when they bought it in 1984. When you use Fed money, they have to be careful what they do with the land, although they’ve said they didn’t have any restriction over that anymore. Ms. Larsen responded they purchased it in 1975 with open space money and HUD repealed the restrictive covenants in 1984. They have in writing from HUD that it had been repealed and there were no restrictions on the sale of that property. Councilmember Brimeyer felt they should give the Watershed District a chance to take a look at it. He urged the Council if after that time, they hadn’t made a substantial deposit, there had to be a good reason for the Council not to sell the Wood Lane lot. It was moved by Councilmember Brimeyer, seconded by Councilmember Santa, to adopt Resolution No. 05-170 authorizing sale of property located at 5609 Wood Lane, pending Minnehaha Creek Watershed District Action within six months. Councilmember Santa added that neighbors needed to know what was going to happen with this property. She liked the idea of a landing and having a place where people could travel down the creek. She could not see having the public drive on this narrow street and creating a place to park. Councilmember Santa made a friendly amendment if at the end of six months if the Watershed District has not bought the property or submitted a purchase agreement, it be sold for a single-family home. Councilmember Omodt asked for clarification on the action they were requiring of the Watershed District? Councilmember Brimeyer replied they would need to say they were very interested in buying the parcel and for what reasons and provide a deposit. They should have good reasons if they needed to extend the time period. Mr. Harmening clarified that the resolution stated they needed to have a purchase agreement in place. St. Louis Park Council Meeting Item: 121905 - 3a - Minutes City Council Dec. 5, 2005 Page 10 Councilmember Sanger agreed with Councilmember Finkelstein’s comments with respect to the potential use of this parcel. She had been one of the most frequent speakers on the need for move-up housing, but she also thought it was important to have balance. They will accomplish their move-up housing goals by selling most of these parcels, but retaining a few. This needed to be retained not only for a potential trail or canoe landing, but also for access to the Creek. She didn’t see this as a canoe landing that would make a major impact, it was a narrow street. Her preference would be to retain this parcel, which wouldn’t require a massive amount of infrastructure or redoing of the road. She would be opposed to the motion to sell this parcel. Councilmember Finkelstein suggested if they could save this as a rustic park and put something there, they could limit parking to just members of the neighborhood so they would not be inundated by parking. When they talk about putting a renewed emphasis on the creek and when they have an opportunity to do something about it, why not take it? If they sell it for a single-family home, then they’ve lost that opportunity. Councilmember Omodt asked for clarification when they were talking about terms of purchase? Councilmember Santa responded a purchase agreement and the intent is in writing. Councilmember Finkelstein believed as it was currently stated, it didn’t require it to be a purchase agreement, rather that they fully explore their options for ownership. The motion stated a purchase agreement, but the resolution did not say that. Councilmember Brimeyer clarified it be the terms of purchase, with deposit. Councilmember Basill stated he was concerned with a drop-dead date of six-months. They received the letter from the Watershed District on August 15th and had given them no direction since then because they had been in this process. They would give them direction after this meeting, but he was worried if they would be able to do it in six- months. He suggested an amendment that if at six months they can see their intention is to buy, and the Watershed District was making a good faith effort, the Council could grant an extension. Councilmember Brimeyer believed if they were 80% there, the Council at that time would have the wisdom to decide what to do. Mayor Jacobs indicated the motion could not bind a future Council. If they come back in June and they say they were very close, he would be amenable to giving them a short extension. They couldn’t bind a future Council, but needed to have a general time frame. Ms. Larsen clarified that the Watershed District was the one that gave the six-month time frame. They had been watching the process. Councilmember Basill stated if the Watershed District were not to buy it, based on the motion, it would be sold for a single-family home. Had they had any discussions recently with the Watershed District as far as their intent? Ms. Larsen replied they were waiting to see what the Council decided. St. Louis Park Council Meeting Item: 121905 - 3a - Minutes City Council Dec. 5, 2005 Page 11 Councilmember Basill asked for clarification that they entertaining buying it? Ms. Larsen replied they were still interested in buying it. Mr. Locke added their issue was that they didn’t want to spend board time discussing it if the Council wasn’t interested. Councilmember Basill stated if this property was going to be part of the Creek and the Watershed District, that is the way to protect it for the long term. Councilmember Sanger believed even if the Watershed District did not chose to buy it and protect it, they could accomplish it themselves. If the City had the proper zoning and description in the Comp Plan, they could provide the same kind of protection. Ms. Larsen indicated the resolution stated if the City were to sell it, the City would retain an easement to maintain control over the Creek shoreline property, protect the flood plain, protect the Creek and protect the potential for a trail so the City could have an easement. Councilmember Finkelstein asked if there was a way to have an opposing amendment to saying if the Watershed District didn’t buy it, they create a rustic park? Mayor Jacobs indicated that would be contrary to the motion on the floor and would be a new motion. Councilmember Basill asked for further clarification about binding a future Council. Mr. Scott stated they could amend the motion, if they decided to change their mind after this meeting and amend the motion, a future Council was free to do that. Councilmember Basill asked if the Watershed District didn’t buy it, could Council change what they wanted to do with the property? Mr. Scott replied that was correct. The motion passed 4-3, with Councilmember Finkelstein, Omodt and Sanger opposed. It was moved by Councilmember Brimeyer, seconded by Councilmember Santa, to adopt Resolution No 05-171 authorizing sale of property located at 4525 Morningside Avenue South, in accordance with the City’s adopted Sale and Design Review Process and Design Guidelines. The site design shall retain as many trees as possible. Councilmember Basill stated as they had gone through this process he heard a lot through the community about a number of properties. He heard a lot about this property and tried to step back objectively and look at the criteria of what differentiated one property from other properties. The Morningside property probably had the most criteria because it was adjacent to a park. He didn’t think any other property was quite in the position this property was. Being next to a park provided additional space. He would not support the sale of this property. Councilmember Sanger indicated she would not the support the sale either. She had been amazed at the outpouring of affection for an empty parcel of land. They needed to respect that. It was not worth it to her for one home. St. Louis Park Council Meeting Item: 121905 - 3a - Minutes City Council Dec. 5, 2005 Page 12 Mayor Jacobs stated he loved Browndale Park and lived on the park and what was difficult about a discussion like this was that everyone was right. There are people that want to increase the single-family housing stock which is the core and backbone of the housing stock in St. Louis Park with all of the condos and multi-family they have built. On the other hand people argue equally passionately that they don’t have a lot of open space and need to preserve what they have left. He represented the whole city and needed to be cognizant of that. He was at the park last Saturday and there were 100+ kids sledding. One of the kids noted there was always room for a couple more kids on the hill. He was told by Leonard Thiel that what made St. Louis Park so special was the people. The houses that would get built on these lots would be very nice homes and fit within the character of the neighborhood and be aesthetically pleasing. The people that move into them would become their neighbors and friends and become a part of the community. They were relying on the goodness and welcoming nature of the people. He would be supporting the motion. The motion passed 4-3, with Councilmember’s Basill, Omodt and Sanger opposed. It was moved by Councilmember Brimeyer, seconded by Councilmember Santa, to adopt Resolution No. 05-172 establishing the sale and design review process and design guidelines for excess land parcels. Councilmember Basill made a friendly amendment on paragraph 3(a) to insert after the first sentence, “at fair market value.” Also, that section 3 be moved ahead of section 2. Councilmember Santa believed it made sense to first determine the size of the property going to be offered to the public, which would be determined by whether the neighbor wished to purchase a portion of the lot. Inserting at fair market value also made sense. Councilmember Brimeyer accepted the friendly amendment. Councilmember Finkelstein stated he didn’t want someone to buy a property and turn around and sell it for a quick buck. He encouraged the Council consider revising 2(c) to provide that some sort of “skin in the game” provision. Mayor Jacobs had a concern about that because people buy homes and if they are move- up homes, presumably people use them like that. Jobs change and people get transferred, which cannot be predicted. They cannot be constrained. Councilmember Brimeyer noted in item 8 they agree to do it within a reasonable period of time. They cannot specify a time. Councilmember Finkelstein clarified what he was saying was if after they build it, they turn around and sell it in a short period of time and essentially flip the property. He thought the City and community should benefit. They don’t want to encourage people to buy properties just to be small time developers. Councilmember Santa disagreed because that was asking for a degree of certainty that the future didn’t hold. People can buy property and have some event happen in their life. To penalize a person for life’s difficulties wasn’t reasonable. St. Louis Park Council Meeting Item: 121905 - 3a - Minutes City Council Dec. 5, 2005 Page 13 Mayor Jacobs understood what he was trying to accomplish, but the main goal of this was to provide a housing stock that would enable families to move-in or to stay here. Councilmember Brimeyer believed the design guidelines were pretty tight. You would have a hard time getting around them. He wasn’t sure they needed to be making changes after having this for six-months. Councilmember Sanger asked when people could start to get information about submitting bids? Once the successful bidder is identified for any particular parcel, the plans are adopted and approved, how much time do they have to start construction of the home? It concerned her if someone was approved and they sat on the parcel for a couple of years. Ms. Larsen responded they didn’t put a specific time because if they purchase a property in January, they may not be able to begin construction until warmer weather. When a person purchases a property, much as they do with the Home Renewal program, in the development agreement there is a completion date that must be met. Depending on when the parcel goes up for sale, that reasonable time would be determined and it would be written into the development agreement. Generally they stay within one construction season. Councilmember Sanger asked when people could begin to submit bids if they are interested and learn more about the process. Ms. Larsen replied they were meeting with the attorney later this week to clarify what needed to be done with the properties to clear the title and get things in motion. The properties conveyed from the County and from the State would take longer than the properties the City already owned. They will keep residents informed through the Park Perspective, the web site and direct mailings for those who had expressed an interest. They still needed to conduct fair market appraisals and surveys on a few of the properties; some would require Comp Plan amendments. There were four sets of properties and the timelines would be different based on the required work to prepare them for sale. They would make the information available as soon as decisions were made. Councilmember Basill suggested in section 2 adding, “(e) A neighboring property could purchase the property at fair market value if they so choose if they are adjacent or touching the property for sale.” Councilmember Santa asked if he meant a neighbor could bid on the property or saying if the neighbor wanted to buy it they had priority? Councilmember Basill replied if the neighboring property could purchase the property. Councilmember Brimeyer asked to build a house on it? Councilmember Basill replied no, to leave it empty. Councilmember Brimeyer would not accept that as a friendly amendment. Mayor Jacobs had concerns as well and thought it defeated the purpose of what they were doing. He agreed that adjacent property owners can purchase a portion of it. The idea of doing this was not to just generate cash for the City, the idea was to build move-up single-family homes. St. Louis Park Council Meeting Item: 121905 - 3a - Minutes City Council Dec. 5, 2005 Page 14 Councilmember Finkelstein agreed with Mayor Jacobs. They would need to be aware of unintended circumstance and could end up with people purchasing the property and then subdividing. The motion passed, as amended by Councilmember Basill, 7-0. Councilmember Brimeyer suggested setting up a fund from the sale proceedings to be used for environmental issues. If there was support, the Council can explore options in the future. Mayor Jacobs stated they needed to have a public process to determine this. Proceeds from this should not get tossed into the General Fund, but for something like that. Councilmember Sanger agreed finding ways to earmark the money for parks, environmental protection and similar things made sense. She was leery voting for a resolution without any details. This should be a study session item in the near future. Councilmember Brimeyer indicated the model was there for the public process, using the task force to look at these parcels was good and they could do the same for this. Councilmember Finkelstein indicated they talked about having more move-up housing. The revolving loan fund for homeowners had been extremely successful and he would like to have that included in the study session. What they could do to encourage people to stay in St. Louis Park and maybe add on. Councilmember Santa recommended this go back to a study session. Between the various items brought up, a very small pie had been sliced so thin that they may not have the “bang for the buck”. The public is given a sense of where the Council is looking at dedicating these funds to enhancing the quality of life in St. Louis Park through a variety of mechanisms that are environmental or housing and would continue to look at that. Mayor Jacobs stated they had no idea how much this would be. It depended on when they opened the bids. They may have a better sense of it then. He liked the idea of having a task force. He thanked all involved with this process. 8d. Request of Julie L. Murphy for a Comprehensive Plan Map Amendment from Industrial to Medium Density Residential; and a Zoning Map Amendment from General Industrial (IG) to Two Family Residential (R-3), Applicant: Julie L. Murphy, Location: 6300-6312 Cambridge Street, Case No.: 05-50-CP and 05-51-Z The applicant requested this item be rescheduled for the December 19, 2005 meeting. St. Louis Park Council Meeting Item: 121905 - 3a - Minutes City Council Dec. 5, 2005 Page 15 8e. Summary and acceptance of the annual City Manager evaluation Mayor Jacobs stated the Council had been working with a consultant on the annual evaluation of the City Manager who had done a great job. The evaluation consisted of scores 1-5 and Mr. Harmening received an overall rating of 4.4. He was doing a great job, was technically competent, ethically professional at the highest level and anticipates the future needs of St. Louis Park well. They were pleased with Tom’s performance as a Manager and looked forward to continued work with him. It was moved by Councilmember Sanger, seconded by Councilmember Omodt, for formal acceptance of the final City Manager annual evaluation. The motion passed 7-0. 9. Communications Councilmember Finkelstein appreciated the letter he received from Mayor Jacobs. 10. Adjournment The meeting adjourned at 9:46 p.m. ______________________________________ ______________________________________ City Clerk Mayor St. Louis Park Council Meeting Item: 121905 - 4a - Parktacular Agreement Page 1 4a. Motion to approve the St. Louis Park Community Celebration Service Agreement with Parktacular, Inc. Background In July of 2003, a Committee made up of staff, Councilmember Sue Santa, PRAC, a school rep and members of the Parktacular Committee began to define the future working relationship between the City and Parktacular. The Committee met several times throughout the last two years to develop the Service Agreement document that is being presented. Future Parktacular events will be organized by a Board of Directors as a 501 C3 non-profit. Main Issues Discussed The Committee focused on some of the main issues facing the Parktacular event. These issues include insurance, budget, non-profit status, communication, responsibilities, and schedule of events. The Committee spent a significant amount of time on defining responsibilities. The role of the City staff in past events has never been defined and has changed every year. Parktacular Event Contributions The Parktacular Board and Committee agrees to do all planning, organizing, marketing, fundraising and volunteer staffing to support the event. As the Agreement states, the Event Committee has the responsibility to plan for and execute a successful annual event. City of St. Louis Park Contributions to Parktacular The City of St. Louis Park agrees to partner with them by assisting in the areas of infrastructure, insurance, marketing, parade, carnival location, staff liaison, event staffing, facility, equipment use, and storage. The only monetary contribution the City of St. Louis Park has committed to is up to $6,000 annually towards event and parade insurance. The other contributions are in-kind costs (including some overtime for staff). Recommendations Staff is recommending that Council adopt the St. Louis Park Community Celebration Service Agreement as attached to this report It is our hope that future Parktacular Committees can use this Agreement as a guiding tool to plan a successful event. Attachment: Community Celebration Service Agreement Prepared by: Cindy Walsh, Parks & Recreation Director Approved by: Nancy Gohman, Deputy City Manager/HR Director St. Louis Park Council Meeting Item: 121905 - 4a - Parktacular Agreement Page 2 St. Louis Park Community Celebration Service Agreement This instrument constitutes the acknowledgement of a working relationship, dated ___________, between the CITY OF ST. LOUIS PARK (“City”) and PARKTACULAR, INC., a Minnesota non-profit corporation, commonly referred to as the PARKTACULAR CELEBRATION COMMITTEE (“Parktacular”). The document is designed to regulate and manage the affairs of the annual St. Louis Park community celebration. 1. Purpose of Celebration The purpose of Parktacular is to promote a spirit of pride, a sense of community and an atmosphere of celebration for all residents of the City of St. Louis Park. 2. Intent The operation of the community celebration shall be managed in a relationship with the City as specified in this document. 3. Parktacular Corporate Structure Parktacular acknowledges and represents the following as to its corporate operations: 3.1 Incorporation: Parktacular, Inc. is a Minnesota non-profit corporation incorporated under and pursuant to the Minnesota non-profit corporation act. 3.2 Board and Committees: The Board of Directors is not less than three and not more than nine positions. Director positions include chairperson, past chairperson, treasurer and up to six at-large positions. Directors are elected at an annual meeting to serve a term of three years. All committees are approved by the Board of Directors. These generally include parade, fundraising, ambassador, carnival, volunteer, senior event, marketing, entertainment, event planning and health. The City provides a staff liaison to Parktacular who is not a voting Board member. 3.3 Insurance: Parktacular is responsible for purchasing all insurance reasonably needed to produce and operate the annual event. The types of insurance purchased will include, at a minimum, general liability, board/committee/volunteer liability, and event liability for each event scheduled or attended. The City of St. Louis Park and the St. Louis Park Public School District must be listed as additional insured on all policies. Minimum amounts of coverage and limits of policies will be established by the City’s Finance Director. Copies of all insurance policies must be submitted to the City when facility requests are outlined. St. Louis Park Council Meeting Item: 121905 - 4a - Parktacular Agreement Page 3 3.4 Financial: The Parktacular fiscal year operates from August 1 through July 31. The financials and all Committee accounts are managed under the direction of the Board and the Parktacular Treasurer. All fundraising, financial transactions and the fiscal operation of the Celebration are the responsibility of Parktacular and are independent of the City of St. Louis Park. 3.5 Contractual: Except as set forth herein, any and all contracts with vendors or other third parties necessary to produce and operate the Celebration are the sole responsibility of Parktacular. All contractual agreements must be authorized by a resolution from the Parktacular Board of Directors. 3.6 Infrastructure: CITY • Maintain and fund a Parktacular events informational phone line. • Provide a business mailbox at the Rec Center. • Organize and fund any mailing associated with resident notification concerning parade routes, neighborhood meetings, road closures and general event disruptions. • Provide for and fund a general storage area not to exceed 6’ x 6’ for storage of historical information, signage, equipment, etc. • Provide a link from City website to Parktacular event website. PARKTACULAR • Design, maintain and fund a Parktacular website. • Responsible for distribution of all mail. • Responsible for all marketing and general mailing expenses. • Responsible for all expenses associated with printed materials needed for the business of the organization of the event. • Maintain and publish phone and e-mail contacts for all aspects of the Parktacular Celebration. 3.7 Volunteer Staff: Parktacular is responsible for scheduling, training and implementing volunteer on-site representatives and work groups for the Celebration. The responsibilities include on-site coordinator for all pre-event set-up (carnival, food vendors, portable bathrooms, etc.), event day(s) or site supervisor and work groups for trash removal, program preparation/breakdown and all other support needed to operate event. Schedules, names and contact information must be submitted to the City liaison on or before the first scheduled day of pre-event set-up. 4. Parktacular Event 4.1 Organization Timelines: The Celebration organizational timeline will be set by the Parktacular Board of Directors. Items listed below are time sensitive: • November: Set date for following year’s event. • December: Provide marketing information for the Parks & Recreation brochure. • January: Submit preliminary facility needs requests. • May: Submit City maintenance and staffing requests. St. Louis Park Council Meeting Item: 121905 - 4a - Parktacular Agreement Page 4 4.2 Event Schedules: The schedule for the annual Celebration will be a minimum of one day and not exceed four days. The Celebration will generally be scheduled during the third week and/or weekend of June. 4.3 Marketing: The marketing plan should include but not be limited to: CITY • Publish in the Parks & Recreation brochure. • Publish on the City website. • Provide link from City website to Parktacular website. • Publish in the City newsletter. • Hang Celebration monument banners provided by Parktacular. • Distribute Celebration flyers at City buildings provided by Parktacular. • Sell buttons at City buildings provided by Parktacular. • Provide informational phone line. • Copy up to 50, 8 ½”x 11” colored marketing flyers. PARKTACULAR • Design and develop all marketing materials. • Maintain Parktacular website. • Print and distribute Celebration flyers. • Print and sell Celebration buttons. • Write and submit all press releases. • Purchase advertising. • Update monument banners. • Update phone information line. • Be on-site at all times during Celebration for information purposes. 4.4 Food Vendors: Food vendors operating at the Parktacular Celebration are the sole responsibility of Parktacular. All vendors must be approved by the City Health Inspector and have the appropriate licenses needed to operate and serve food items. Parktacular and/or its vendors are responsible for all fees associated with inspections and appropriate licensing. Food vendors are responsible for set-up, storage, operation, waste, power needs, and clean-up and tear down at each specific location. The City expects Parktacular to offer food sales opportunities to local (St. Louis Park based) service groups and businesses before contracting with outside organizations. The City expects local organizations and/or service groups to have exclusive sales rights for their specific products during the length of the Celebration. The City will work with Parktacular to determine food service locations on site during the Celebration. 4.5 Carnival: Parktacular must submit to the City annually prior to December 1st a written request for a carnival operation for the following year’s Celebration which may be approved or denied. If the carnival is approved, the following is a list of conditions for the operation of a carnival: St. Louis Park Council Meeting Item: 121905 - 4a - Parktacular Agreement Page 5 • City must approve any and all locations. • Parktacular is responsible for selecting and contracting with a reputable carnival operation. • City must approve the number of days and hours of operation. • City must approve the music and noise levels. • Carnival owner must provide statement of insurance and list the City of St. Louis Park and Parktacular as additional insured on the policy. • Carnival owner or Parktacular is responsible for inspections, permits, and fees associated with the operation of a carnival on City property. • Parktacular is responsible for all power needs associated with the operation of a carnival. • City may or may not approve overnight accommodation location for carnival staff. When approved, the carnival owner will be fully and financially responsible for conduct and any expense associated with use of City property for overnight accommodations. This includes returning the site to its original condition upon exiting the site. • Carnival owner will be responsible for all utility locates through Gopher One. • Carnival owner and Parktacular will need to work with City staff on entire carnival operation area including specific ride and service booth locations. • Carnival owner and Parktacular will be responsible for any and all repair damage needed to restore asphalt, irrigation, turf, sidewalk, curb, concrete, trees, etc. • City will provide all barricades needed to identify carnival space. 4.6 Parade: Parktacular will annually operate a parade on a route agreed upon by both the Parktacular and the City. Responsibilities for parade implementation include: CITY • Schedule two or three organization meetings. • Approve route and staging/breakdown areas. • Notify Hennepin County for permit. • Notify residents impacted by route and schedule neighborhood meeting, if necessary. • Sign and barricade route. • Provide Public Safety support at key intersections. • Provide traffic control where needed. • Provide Street Department support. • Provide Parks Department support. • Provide volunteer vests. • Trim trees on parade route. • Organize neighborhood meetings. • Pick up parade route barricades and signs. • Sweep and clean parade route streets one day in advance of parade. • Publish parade route on City website. • Host wrap-up meeting (if necessary). St. Louis Park Council Meeting Item: 121905 - 4a - Parktacular Agreement Page 6 PARKTACULAR • Attend organization meetings. • Approve route. • Organize and advertise parade. • Lay out staging area. • Lay out breakdown area. • Recruit and supervise parade volunteers. • Direct the parade. • Attend neighborhood meetings. • Provide parade coordinators phone number, address, and email address. • Set fees for parade participation. • Organize cable coverage. • Clean up parade route at conclusion of Celebration. • Obtain permits for all facilities needed to implement parade. • Design and implement parade insurance waiver requirements for local parade participants. • Staff volunteers at all barricaded streets for staging area, route and breakdown area. 4.7 Ambassador: The Ambassador program is the sole responsibility of Parktacular. The City does not provide any support for the program. 4.8 Event Button: If Parktacular chooses to have a Celebration button, a design contest will be held for the residents of St. Louis Park. The Board of Directors will select a winner for each year’s design contest, purchase and market the new buttons. 4.9 Security: The general security of the Parktacular Celebration is the responsibility of Parktacular. The St. Louis Park Public Safety Departments are available for emergencies but will not provide general 24 hour security services. All Parktacular volunteers and staff who work directly with youth events and programs will be required to submit a background check. The City will provide the background check form and will process. There will be a $5 fee for each Minnesota background check. 4.10 Permits & Licenses: Parktacular is responsible for the scheduling of inspections and all fees associated with the permits and licenses needed to operate the Parktacular Celebration. 4.11 Public Health: Public health responsibilities during the operation of the Parktacular Celebration are assigned as follows: CITY • Provide option for use of City contractor for portable toilets, hand washing stations and waste disposal. • Work with Parktacular to determine number of portable toilets, hand washing stations and waste receptacles needed for the Celebration. • Order units requested by Parktacular from City contractor (if needed). • Determine location for toilets, hand washing units, waste receptacles and dumpster. St. Louis Park Council Meeting Item: 121905 - 4a - Parktacular Agreement Page 7 • Facilitate delivery and pick-up of all public health units. • Provide large dumpster for waste disposal. • Invoice Parktacular if public health units are rented through City contractor. PARKTACULAR • Provide and fund appropriate number of portable toilets for event. • Provide and fund appropriate number of hand-washing stations for the Celebration. • Provide volunteer work groups to service appropriate number of waste receptacles for the Celebration. • Responsible for all expenses associated with portable toilets and hand washing units. • Meet with City Health Inspector to approve plans for food service and public health concerns. 4.12 Parade Unit: Parktacular is responsible for maintaining, decorating and insuring the vehicle and driver pulling the parade trailer for the Celebration use. The City of St. Louis Park must be listed as an additional insured on all insurance purchased for the use and operation of the parade unit trailer. The trailer used for the carnival float is owned by the City. If the City were to ever sell the parade trailer, Parktacular would be consulted and involved with the timeline and process for the sale of the unit. 5. City of St. Louis Park The City, in a relationship with Parktacular, will provide the following Celebration support on an annual basis: 5.1 Liaison: The City will provide a staff person as a liaison to Parktacular. All communication for the Celebration coordination is expected to flow through the City liaison. The liaison will provide support in the following areas: • Attend six to eight board meetings annually. • Organize City and Parktacular joint meetings (i.e. parade, neighborhood, carnival, etc.). • Organize event information for Parks & Recreation brochure and City newsletter. • Direct information requests to appropriate Parktacular member. • Organize Celebration information for City website and assist with link to Parktacular website. • Schedule installation of marketing banners. • Provide secure mail holding area for Parktacular mail. • Assist with Parktacular information phone line. • Provide direct communication link between City and Parktacular. • Implement facility and equipment need requests. • Organize notification mailings to residents impacted by events of Parktacular. • Maintain a current Board of Directors roster. • Submit maintenance requests to Park Superintendent. • Review on-site volunteer work schedules. • Review duties and process requests for full-time maintenance staff. St. Louis Park Council Meeting Item: 121905 - 4a - Parktacular Agreement Page 8 5.2 Financial: The City will provide financial support for insurance up to $6,000 for the Celebration. The insurance policies and requirements must include event, local parade, board and event service vehicle coverage. The City of St. Louis Park must be listed as an additional insured on all policies. The City Finance Director will review and approve all policies. 5.3 Facility Use: The City will provide facility use free of charge for most activities deemed appropriate for the event. Facility requests must be submitted to the staff liaison by mid to late January each year to avoid any conflicts in scheduling. Any activity deemed inappropriate for the relationship will require a rental of the facility at the local non-profit rate. 5.4 Equipment: The City will generally provide equipment for use at no charge. The exceptions would be equipment that is inappropriate for volunteers to operate, that which requires extensive training, disposable equipment and any equipment which may need to be rented. Any damage caused to City equipment used or operated by Parktacular volunteers will be the responsibility of Parktacular. 5.5 Storage: The City will provide a storage area free of charge for Parktacular documents, historical information, annual use equipment, signage, etc. The storage space will not exceed an area 6’ x 6’, excluding the parade unit trailer. 5.6 Parade Unit and Trailer: The City owns and insures the trailer upon which the Parktacular float is constructed. The City will continue to own, store outdoors and insure this trailer. Parktacular is responsible for maintaining, decorating and insuring the float for use. Each time the parade unit (trailer) is used for a Celebration, the City must be added as an additional insured to the insurance policy purchased by Parktacular. 5.7 Park Maintenance Staff Support: The City will provide weekday general or regular maintenance support for the Parktacular event. This includes general facility appearance, equipment delivery, pre-event planning and regular scheduled weekday responsibilities at the event location. The City will also provide one or two maintenance staff personnel for a period of up to 16 total hours (minimum of 2 hour shifts) during the event at no charge. Any additional maintenance assistance required after a total of 16 hours will be invoiced to Parktacular. Every effort will be made to use seasonal staff and/or full-time staff which are not on overtime. This is not always possible and therefore overtime personnel may be needed if requested by Parktacular. Parktacular will need to outline the responsibilities and timelines for staff requested. Maintenance staff support will require an outline of job responsibilities which needs to be submitted to the City liaison. 5.8 Carnival Support: The City will work with Parktacular to locate property for the operation of the carnival. The City will coordinate pre-carnival organization meetings, facilitate on-site set-up and provide carnival area barricades. The City will not provide any power services for the carnival contractor and will not be responsible for any aspect of the carnival operation. St. Louis Park Council Meeting Item: 121905 - 4a - Parktacular Agreement Page 9 6. Conflict Resolution This document has been written to act as an instrument to clarify the relationship between Parktacular and the City. Once the document is signed and approved by both entities, the following process will be required to make changes to the Agreement: • Request for change must be submitted in writing to both the Superintendent of Recreation and the Chairperson of Parktacular; and • Representatives from both entities will schedule to meet and discuss potential adjustments; and • If both entities agree to changes, document is adjusted and approved by the City and Parktacular; or • If both entities do not agree with potential adjustments, representatives will meet with the St. Louis Park Parks & Recreation Advisory Commission (“PRAC”) at a scheduled meeting to present the issue(s). PRAC will provide up to 15 minutes for each entity to present issue; and • PRAC will then discuss issue(s) and make recommendation for delivery to the City Manager at the next regularly scheduled PRAC meeting. 7. Term This Agreement shall be for a term of five (5) years commencing January 1, 2006 and terminating December 31, 2010. Either party may terminate the Agreement prior to December 31, 2010 by giving written notice of its intent to terminate to the other party by December 31 of any year. CITY OF ST. LOUIS PARK PARKTACULAR, INC. By: _________________________________ By: _________________________________ Jeffrey W. Jacobs Bridget Wynn-Kienenberger Its Mayor Its Chair By: _________________________________ Thomas K. Harmening Its City Manager Attest: By: _________________________________ City Clerk (seal) St. Louis Park Council Meeting Item: 121905 - 4b - Final Payment Copeland Bldg Corp Page 1 RESOLUTION NO. 05-186 RESOLUTION ACCEPTING WORK FOR CONSTRUCTION OF BROWNDALE AND NELSON PARK BUILDINGS CITY PROJECT NO. 20050090 CONTRACT NO. 45-05 BE IT RESOLVED by the City Council of the City of St. Louis Park, Minnesota, as follows: 1. Pursuant to a written contract with the City dated May 18, 2005; Copeland Building Corporation has satisfactorily completed work for construction of the Browndale and Nelson Park Buildings, as per Contract No. 45-05. 2. The Director of Parks and Recreation has filed her recommendations for final acceptance of the work. 3. The work completed under this contract is accepted and approved. The City Manager is directed to make final payment on the contract, taking the contractor's receipt in full. Original Contract Price $ 755,000.00 Change Order/Overrun $ 21,615.66 Previous Payments $ 743,439.92 Balance Due (final payment) $ 33,175.74 Reviewed for Administration: Adopted by the City Council December 19, 2005 City Manager Mayor Attest: City Clerk St. Louis Park Council Meeting Item: 121905 - 4c - Reilly Site Consulting Services 122-04 Page 1 4c. Motion to authorize execution of a one (1) year extension to Contract No. 122-04 with ENSR Consulting and Engineering for consultant services related to the implementation of the Reilly Tar & Chemical Corporation (Reilly) Remedial Action Plan (RAP) during year 2006. Background: In September, 1986, the Reilly Consent Decree became effective and the City accepted responsibility for a number of environmental remediation tasks contained in the Reilly RAP. Over the last 19 years the City has retained the services of nine consulting engineers or firms to provide for the design and/or implementation of the RAP activities. One firm, ENSR, has served as the cornerstone of the professional “consortium” because of its extensive historical relationship with the Reilly project. Currently the City has a one (1) year Contract with ENSR for consultant services. The current contract expires December 31, 2005 but has renewal options for the years 2006 and 2007. The activities or services provided by this contract are: Groundwater sampling and analysis Preparing annual reports for agency review Aquifer studies Investigation of leaking wells Laboratory audits and coordination Historical file searches General project administration Discussion: While many of the studies required by the Reilly RAP have been completed by ENSR and others, certain tasks such as groundwater sample retrieval and annual reporting represent ongoing activities which will require consultant assistance in year 2006 and into the foreseeable future. ENSR has provided consultant services for the ongoing tasks in the past, and as such, has been recognized by the United States Environmental Protection Agency and Minnesota Pollution Control Agency (Agencies) as an approved consultant for such activities. Staff supports the continued use of ENSR for such services. The general ongoing tasks identified above vary from year to year. The following tasks are planned for 2006: Task 100 – 2005 Annual Monitoring Report: This task involves drafting text and preparing figures and tables to assist the City in completing the 2005 Annual Monitoring Report. The Annual Monitoring Report includes analytical results from the past year sampling efforts, as well as groundwater contour maps. Additionally, a historical summary of analytical results is provided in the Annual Monitoring Report. This report is due to the U.S.EPA and MPCA (Agencies) on March 15, 2006. Task 150 - 2005 Annual Progress Report and GAC Plant Report: ENSR will assist the City in completing these two reports for submittal to the Agencies on March 15, 2006. St. Louis Park Council Meeting Item: 121905 - 4c - Reilly Site Consulting Services 122-04 Page 2 Task 400 – Groundwater Monitoring: This task involves groundwater sample collection in accordance with the 2006 Sampling Plan and water level measurements pursuant to that Plan. Table 1 indicates a cost of $54,000 for this work, which matches last year’s budget, as well as the actual cost incurred during 2005 for this task. This cost includes ENSR labor to collect samples from the municipal drinking water wells, GAC plant, and the gradient control wells. The samples will be shipped overnight via Fed Ex by ENSR. Task 500 – Prairie du Chien-Jordan Aquifer Remedy Implementation: The Prairie du Chien- Jordan Remedy includes pumping the SLP municipal wells currently being used (e.g., SLP-10 or SLP-15 and SLP-4), and monitoring the groundwater. The potential complication presented by pumping at the Meadowbrook golf course (well W119) has not been officially resolved, and PAH concentrations above the drinking water advisory level in well E13 are being monitored. In 2006, changes to the remedy may include the installation and monitoring of well W413, however, the 2006 project budget does not budget for W413 to be installed. Also, if there are indications of contamination spreading southward, then well SLP-6 would be activated for gradient control. The costs in Table 1 reflect a task structure to track costs in accordance with Exhibit A of the City-Reilly Cost Sharing Agreement. Task 540 will cover ENSR’s costs to collect 12 groundwater samples (quarterly sampling of three wells). Task 600 – Laboratory Coordination: This task includes three subtasks: 1. Working with STL on implementing the QAPP, coordinating sampling events, and updating and maintaining the water quality database. 2. Providing data review and data validation at the levels described in the new QAPP. The data validation and data quality review will be documented in the Annual Monitoring Report. 3. Auditing the STL Laboratory in Arvada, Colorado is due to be conducted this year and is provided for in the Task 600 budget in Table 1 at the same cost as prior audits. Task 700 – Site Closure: In 2006, this task includes ENSR’s labor and expenses for coordinating the abandonment of various wells with MPCA, the City, water well contractors, and other parties, as necessary. ENSR anticipates negotiating with the agency to shut down well W434 in 2006. Contractor costs for actual well abandonment are not included in this budget. Task 810 – Program Management and Miscellaneous: This task includes overall planning, directing, and controlling ENSR’s resources to perform this project. This task also includes miscellaneous activities throughout the year such as next year’s Sampling Plan (due October 31, 2006), that includes the Site Management Plan and the Quality Assurance Project Plan. ENSR’s average costs for the past several years have been approximately $25,000 for Task 810. St. Louis Park Council Meeting Item: 121905 - 4c - Reilly Site Consulting Services 122-04 Page 3 Financial Considerations: Recent correspondence with ENSR estimates the cost for year 2006 work tasks at $126,500. Following is a summary of the year 2006 tasks and estimated costs: TABLE 1 Task Estimated Cost, $ Task 100 2005 Annual Monitoring Report (due March 15, 2006) $ 17,500 Task 150 2005 Progress Report and GAC Plant Report 3,000 Task 400 Groundwater Monitoring in 2006 54,000 Task 500 Prairie du Chien Aquifer Remedy Implementation 5,000(a) Subtask 530 W413 Installation $ 0(a) Subtask 540 W48, W119, W413 Monitoring 5,000(a) Subtask 550 NPDES Permitting 0(a) Task 600 Laboratory Coordination 21,000 Subtask: Lab Coordination $ 5,000 Subtask: Data Validation and Review $ 7,000 Subtask: STL Laboratory Audit $ 9,000 Task 700 Site Closure 1,000 Subtask: Well Abandonment $ 1,000 Task 810 Project Management/Miscellaneous 25,000 Total Estimated Project Cost for 2006 $ 126,500 (a) Costs will be split with Reilly. (Sub task amounts listed on the left show the detail of the breakout and are included in the estimated cost line.) The 2006 Reilly Budget contains funding for these Reilly related consultant activities. Contract Terms: The following significant terms are incorporated into this contract: 1. Contract terminates annually on December 31, (2005) with City right to extend for up to two (2) additional one (1) year periods. 2. Compensation to be based on actual work performed with a maximum contract amount of $126,500 for 2006. 3. ENSR will defend and indemnify the City for ENSR’s actions related to this contract. 4. ENSR has independent contractor status. 5. City may terminate this contract at any time for any reason with a 30 day written notice. The city attorney was involved in the preparation of this contract. Attachments: Contract Extension Agreement Prepared by: Michael P. Rardin, Director of Public Works Approved by: Nancy Gohman, Deputy City Manger/HR Director St. Louis Park Council Meeting Item: 121905 - 4c - Reilly Site Consulting Services 122-04 Page 4 EXTENSION TO CITY OF ST. LOUIS PARK AGREEMENT FOR CONSULTING SERVICES THIS AGREEMENT is made on December 19, 2005, by and between the CITY OF ST. LOUIS PARK, Minnesota, a Minnesota municipal corporation (hereinafter referred to as ‘City”), and ENSR CONSULTING AND ENGINEERING, a Delaware corporation (hereinafter referred to as ‘ENSR”). 1. BACKGROUND. The parties have previously entered into an agreement for consulting services dated December 20, 2004 (“Initial Agreement”). The Initial Agreement authorizes the CITY to extend its terms for up to two (2) additional one-year periods. 2. EXTENSION. Subject to the modifications set forth herein, the Initial Agreement is extended for a one (1) year period terminating on December 31, 2006. 3. SCOPE OF WORK AND BUDGET FOR YEAR 2006 ENVIRONMENTAL SERVICES. The Council report dated December 19, 2005, from the City Manager, describing the year 2006 project tasks and estimated costs, is incorporated herein by reference. IN TESTIMONY WHEREOF, the parties hereto have caused this Agreement to be executed by their respective duly authorized officers. ENSR CONSULTING AND ENGINEERING CITY OF ST. LOUIS PARK By:________________________________ By:________________________________ Jeff Jacobs, Mayor Title:_______________________________ and ________________________________ Thomas Harmening, City Manager St. Louis Park Council Meeting Item: 121905 - 4d - Reilly Site Laboratory Services Page 1 4d. Motion to authorize execution of a contract extension to Contract No. 1893 with Severn Trent Services (STL - Denver) for laboratory services related to the Reilly Tar & Chemical Corporation groundwater sampling program through year 2006. Background: The City has maintained a contractual relationship with STL - Denver (formerly Quanterra Corporation and previously Rocky Mountain Analytical Laboratory) for the analysis of groundwater in accordance with the provisions of the consent decree with Reilly Tar & Chemical Corporation (Reilly) since 1988. Staff has identified only two firms capable of providing necessary laboratory services. STL - Denver and CH2M Hill, the laboratory used by the United States Environmental Protection Agency (EPA). Insofar as the USEPA remains opposed to the use of its laboratory consultant by either the City or Reilly, STL - Denver remains the only available consultant for laboratory services. The contract with STL – Denver has been amended each year since 1988. The City Council has previously authorized staff to negotiate contract amendments with STL – Denver. The staff has completed negotiations in costs (unit prices) for the laboratory analysis to be performed in year 2006. Additional Information: The City, Minnesota Pollution Control Agency (MPCA) and the United States Environmental Protection Agency (EPA) acknowledge advances in the technology of groundwater analysis methods since the original testing methodology was agreed to in 1986. City staff has been advocating for several years to update the testing methodology at the Reilly site. Staff also determined the procedures for laboratory data reporting, data validation and data quality review needed updating and simplifying. The entire groundwater monitoring process, which is outlined in the Reilly Quality Assurance Project Plan (QAPP), was re-formatted by the City in 2000, with EPA guidance, to current acceptable methodologies. As a result of this, the proposed 2006 monitoring program and this contract amendment include changes that have significantly reduced the cost of the overall monitoring program the past several years. A summary of recent expenses follows: YEAR AMOUNT COMMENT 1995 132,070 Actual 1996 178,640 Actual 1997 174,695 Actual 1998 123,500 Actual 1999 125,620 Actual 2000 86,020 Actual 2001 85,300 Actual 2002 58,540 Actual 2003 59,800 Actual 2004 52,325 Actual 2005 47,050 Estimated 2006 49,578 Projected St. Louis Park Council Meeting Item: 121905 - 4d - Reilly Site Laboratory Services Page 2 Financial Considerations: Contract authorizations from 1988 through 2005 provide for a cumulative contract amount of $2,209,000 with total estimated expenses of $2,192,772 thereby creating an estimated contract balance of $16,228 at the end of 2005. Based on the updated analytical process and other changes related to data, staff estimates that approximately $49,578 will be expended for water sample analysis during year 2006. Therefore, staff is seeking an additional authorization of $45,000 to the contract to cover the expected 2006 costs plus unanticipated contingencies. The proposed 2006 Reilly Budget contains funding for this Reilly activity. Recommendation: Staff recommends Contract No. 1893 be amended to increase the contract amount by $45,000 to provide for groundwater sample analysis during year 2006. Attachments: Amendment No. 16 to Contract No. 1893 Prepared By: Michael P. Rardin, Director of Public Works Approved By: Nancy Gohman, Deputy City Manager/HR Director St. Louis Park Council Meeting Item: 121905 - 4d - Reilly Site Laboratory Services Page 3 CITY OF ST. LOUIS PARK AMENDMENT NO. 16 TO CONSULTING SERVICES CONTRACT NO. 1893 THIS AMENDMENT NO. 16 to Contract No. 1893 is made on December 19, 2005, by and between the CITY OF ST. LOUIS PARK, a Minnesota municipal corporation hereinafter referred to as “CITY”, and SEVERN TRENT SERVICES (formally QUANTERRA CORPORATION AND PREVIOUSLY ROCKY MOUNTAIN ANALYTICAL LABORATORY/ENSCO) hereinafter referred to as “STL - DENVER”. BACKGROUND On December 12, 1988, the CITY and STL - DENVER entered into Contract No. 1893 for consultant services related to certain rights and responsibilities the CITY accepted under an agreement with Reilly Tar & Chemical Corporation (Reilly) which is attached as Exhibit B to a Consent Decree in United States of America, et al. vs. Reilly Tar & Chemical Corporation, Housing and Redevelopment Authority of St. Louis Park, Oak Park Village Associates, Rustic Oaks Condominium, Inc. and Philips’s Investment Company, United States District Court, District of Minnesota, Civil File No. 4-80-469. Pursuant to communication between the CITY and STL – DENVER, it has been determined that it is in the best interests of the CITY and STL - DENVER to extend the term of Contract No. 1893 to December 31, 2005, and amend the provisions of Contract No. 1893 and amendments issued thereto dated June 29, 1989, March, 1990, November 18, 1991, February 22, 1994, January 11, 1995, February 20, 1996, December 2, 1996, March 2, 1998, December 7, 1998, December 6, 1999, January 16, 2001, December 17, 2001, December 16, 2002, and December 1, 2003, December 20, 2004, incorporating responsibilities each party will assume through year 2006 to discharge those responsibilities the CITY has accepted under Exhibit B to the Consent Decree. NOW, THEREFORE, in consideration of the above facts and mutual covenants herein contained, it is hereby agreed that Contract No. 1893 and all previous Amendments are amended as follows: I. Contract Period 1. The length of Contract No. 1893 shall be extended to December 31, 2006. 2. Total compensation to STL – DENVER for all services rendered pursuant to Contract No. 1893, as amended, shall not exceed $2,254,000. IT IS FURTHER AGREED that all other provisions of Contract No. 1893 and all previous Amendments shall remain unchanged and fully effective, and this Amendment shall become an integral part thereof. EXECUTED as to the day and the year first above written. CITY OF ST. LOUIS PARK, MINNESOTA SEVERN TRENT SERVICES _______________________________________ By: ________________________________________ Mayor _______________________________________ City Manager Attest: _______________________________________ City Clerk St. Louis Park Council Meeting Item: 121905 - 4e - Community Charities Gambling License Page 1 4e. Motion to approve Resolution authorizing Gambling Premises Permit for Community Charities of Minnesota operating at TexaTonka Lanes, 8200 Minnetonka Boulevard. Background: Community Charities of Minnesota has submitted an application to the City of St. Louis Park for a gambling premises license. Licensed gambling has been in operation at this location for many years, and pull-tabs are already in progress at this location under a previously issued permit to expire January 2006. The owner of TexaTonka Lanes desires a change in operators due to a mutual agreement with the current operator. Community Charities of Minnesota is a non-profit charitable fundraising organization currently operating at numerous bars, bowling lanes and similar establishments throughout the state. In addition to the pull tab booth at Texa Tonka Lanes and 37 others in the region, the organization also operates the booth at the Park Tavern in St. Louis Park. All current requirements for issuance of the license have been met. The Police Department has conducted a background investigation on the organization, its officers and related personnel. This action does not require a public hearing as the building location meets all proximity requirements in the ordinance. Recommendation: License materials are in order and the staff recommends approval. Should the City Council approve the application, the resolution of approval will be forwarded to the State Gambling Control Board who is responsible for issuing the license. Attachments: Resolution Prepared by: Nancy Stroth, City Clerk Approved by: Nancy Gohman, Deputy City Manager/HR Director St. Louis Park Council Meeting Item: 121905 - 4e - Community Charities Gambling License Page 2 RESOLUTION NO. 05-187 A RESOLUTION APPROVING ISSUANCE OF A PREMISES PERMIT FOR LAWFUL GAMBLING COMMUNITY CHARITIES OF MINNESOTA AT TEXA TONKA LANES, 8200 MINNETONKA BOULEVARD, ST. LOUIS PARK WHEREAS, Minnesota Statutes Chapter 349 and St. Louis Park Ordinance Code Section 15, provide for lawful gambling licensing by the State Gambling Control Board; and WHEREAS, a licensed organization may not conduct lawful gambling at any site unless it has first obtained from the Board a premise permit for the site; and WHEREAS, the Board may not issue or renew a premises permit unless the organization submits a resolution from the City Council approving the premises permit; therefore, BE IT RESOLVED by the City of St. Louis Park City Council that the applicant listed above meets the criteria necessary to receive a premises permit, and the application is hereby approved. Reviewed for Administration: Adopted by the City Council December 19, 2005 City Manager Mayor Attest: City Clerk St. Louis Park Council Meeting Item: 121905 - 4f - Boulevard Rotational Tree Trimming Page 1 4f. Motion to authorize execution of a contract in the amount of $60,000.00 with Ostvig Tree, Inc. for 2006 Tree Pruning (trimming). Background: 2006 will be our second year of contract rotational boulevard tree pruning. The goal of this contract is to increase the safety, health and function of all boulevard trees by raising low branches, removing dead wood and eliminating future impediments to growth. This contract only covers boulevard trees. Parks and City-owned property trees will be rotationally pruned by the Parks Maintenance Division. During the 2005 budget process, $60,000 was allotted for 2006 rotational tree pruning (trimming) throughout the City. Due to varying sizes and species of trees located on the boulevards, the contract was bid on an hourly basis, with proper crew and equipment specified. The contractor designated above will perform rotational pruning in two areas of the City (north west and central – Kilmer and Bronx Park Neighborhoods). The rotational pruning portion of the contract will be split up so that several areas throughout the City are completed in 2006. The remaining areas will be pruned in subsequent years. Ideally, pruning should be performed on each tree every seven years. Pruning will begin the week of January 9, 2006 in the Kilmer Pond neighborhood. Bid Analysis: Bid packages for the 2006 Tree Pruning contract were mailed out in November. Bids were opened on Monday, December 12, 2005 at 11:00 a.m. at City Hall. Five bids were subsequently received with results as follows: Ostvig Tree, Inc. $ 83.79/hour Precision Landscape & Tree $100.00/hour Top Notch Treecare $140.00/hour Shadywood Tree Experts $140.00/hour S & S Tree & Horticultural Spec., Inc. $160.00/hour Recommendation: Staff recommends Ostvig Tree, Inc. as the 2006 Tree Pruning Contractor. Ostvig Tree, Inc. has successfully performed similar contracts for the cities of Plymouth, Wayzata and the Three Rivers Park District. Prepared by: James Vaughan, Environmental Coordinator Cynthia S. Walsh, Director of Parks and Recreation Approved by: Nancy Gohman, Deputy City Manager/HR Director St. Louis Park Council Meeting Item: 121905 - 4g - Parking Restrictions-3330 Republic Ave Page 1 4g. Traffic Study No. 592: Motion to adopt Resolution rescinding parking restrictions on the south side of Republic Avenue from the driveway apron in the 1st Street Northwest right-of-way to a point 110 feet to the northwest. Background: In December 2004, the City received a request from the Hopkins/Minnetonka/St. Louis Park School Districts Transitions-Plus Program for the installation of parking restrictions on the south side of Republic Avenue from the driveway apron in the 1st Street Northwest right-of-way to a point 110 feet to the northwest. The Transitions-Plus Program used this location as a school bus drop off and pick up point for students. Recently, the City received a request from the owners of the property to remove those restrictions as the Transitions-Plus Program no longer leases the space, and the owners would like to have the on-street parking that was previously available. Staff has reviewed this request and visited the site. Staff feels that this removal of parking restrictions is appropriate. Recommendation: Staff recommends that the City Council adopt the attached resolution rescinding Resolution No. 04-156 which action authorizes the removal of the parking restrictions from the driveway apron in the 1st Street Northwest right-of-way to a point 110 feet to the northwest, as shown on the attached map. Attachments: Map Resolution Prepared by: Laura Adler, Engineering Program Coordinator Reviewed by: Scott A. Brink, City Engineer Michael P. Rardin, Director of Public Works Approved by: Nancy Gohman, Deputy City Manager/HR Director St. Louis Park Council Meeting Item: 121905 - 4g - Parking Restrictions-3330 Republic Ave Page 2 RESOLUTION NO. 05-188 RESOLUTION RESCINDING RESOLUTION NO. 04-156 RELATED TO PARKING RESTRICTIONS ON THE SOUTH SIDE OF REPUBLIC AVENUE FROM THE DRIVEWAY APRON IN THE 1ST AVENUE NORTHWEST RIGHT-OF-WAY TO A POINT 110 FEET TO THE NORTHWEST TRAFFIC STUDY NO. 592 WHEREAS, the City of St. Louis Park, Minnesota, has been requested, has studied, and has determined that it is in the best interest of the City to rescind certain parking restrictions at this location; and WHEREAS Resolution No. 04-156 currently prescribes traffic controls in this location. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of St. Louis Park, Minnesota, that Resolution No. 04-156 dated December 20, 2004 be rescinded. Reviewed for Administration Adopted by the City Council December 19, 2005 City Manager Mayor Attest: City Clerk St. Louis Park Council Meeting Item: 121905 - 4g - Parking Restrictions-3330 Republic Ave Page 3 St. Louis Park Council Meeting Item: 121905 - 4h - Hopkins Raspberry Fest Gambling License Page 1 4h. Motion to approve Resolution authorizing Renewal of Gambling Premises Permit for Hopkins Raspberry Festival Association, Inc., operating at Al’s Bar, 3912 Excelsior Boulevard. Background: The Hopkins Raspberry Festival Association, Inc. has submitted an application for renewal of a Gambling Premises Permit at Al’s Bar, 3912 Excelsior Boulevard in St. Louis Park. This organization has operated in the City since April of 2002. The premises permit duration is January 1, 2006 – December 31, 2007. The Hopkins Raspberry Festival Association currently operates lawful gambling sales in two locations. In St. Louis Park they operate at Al’s Bar, and in Hopkins they operate at Decoy’s Grill & Bar. All current requirements for issuance of the license have been met. The Police Department has conducted a background investigation on the organization, its officers and related personnel. This action does not require a public hearing as the building location meets all proximity requirements in the ordinance. Recommendation: License materials are in order and the staff recommends approval. Should the City Council approve the application, the resolution of approval will be forwarded to the State Gambling Control Board who is responsible for issuing the license. Attachments: Resolution Prepared by: Nancy J. Stroth, City Clerk Approved by: Nancy Gohman, Deputy City Manager/HR Director St. Louis Park Council Meeting Item: 121905 - 4h - Hopkins Raspberry Fest Gambling License Page 2 RESOLUTION NO. 05-189 A RESOLUTION APPROVING ISSUANCE OF A PREMISES PERMIT FOR LAWFUL GAMBLING Hopkins Raspberry Festival Association, Inc. At Al’s Bar, 3912 Excelsior Boulevard WHEREAS, Minnesota Statutes Chapter 349 and St. Louis Park Ordinance Code Chapter 15 , provide for lawful gambling licensing by the State Gambling Control Board; and WHEREAS, a licensed organization may not conduct lawful gambling at any site unless it has first obtained from the Board a premise permit for the site; and WHEREAS, the Board may not issue or renew a premises permit unless the organization submits a resolution from the City Council approving the premises permit; therefore, BE IT RESOLVED by the City of St. Louis Park City Council that the applicant listed above meets the criteria necessary to receive a premises permit, and the application is hereby approved. Reviewed for Administration: Adopted by the City Council December 19, 2005 City Manager Mayor Attest: __________________________________ City Clerk St. Louis Park Council Meeting Item: 121905 - 4i - DNR Trail Grant Acceptance Page 1 4i. Motion to adopt a resolution accepting a grant from the Minnesota Department of Natural Resource (DNR) for partially funding the construction of a local trail connection to the regional trail system Background: Making the City a safer and more pedestrian-friendly community was one of the recommendations of Vision St. Louis Park. In response to this suggestion, a city-wide Sidewalk, Trail, Bikeway and Crossing Plan has been developed. This Plan, which has been incorporated into the City’s Comprehensive Plan, identifies areas of the City in need of additional sidewalk, trails or bikeways; and, busy roadway or railroad crossings where pedestrian safety improvements can be made. The final Plan was adopted on July 5, 2000 with some minor changes and revisions since then. In 2004 and 2005 seven new segments identified in the City’s plan were constructed. Four of the six segments were connections to regional trails. Three of these connections used grant monies from the DNR to fund 50% of the construction costs. Analysis: The City’s Plan identifies a need for a connection to the regional trail at the east end of Edgebrook Park. The trail connection would link with the City’s local trail system that runs along South Oak Pond. Staff has developed preliminary plans for this connection and plans to construct the trail during in the summer of 2006. The City applied for a grant from the DNR for partial funding of this trail project. The DNR’s grant program provides 50% matching funds for regional trail connections which promote local access to the regional system. The City has been awarded a grant from the DNR pending completion of grant program documents and adoption of a resolution which accepts the grant and assures maintenance of the trail connection for 20 years. The grant will amount to approximately $30,000. Recommendation: Motion to adopt resolution accepting a grant from the Minnesota Department of Natural Resource (DNR) for partial funding of this regional trail connection. Attachment: Resolution Location Map (Supplement) Prepared By: Jim Olson, Engineering Project Manager Reviewed By: Scott Brink, City Engineer Michael P. Rardin, Director of Public Works Approved By: Nancy Gohman, Deputy City Manager/HR Director St. Louis Park Council Meeting Item: 121905 - 4i - DNR Trail Grant Acceptance Page 2 RESOLUTION NO. 05-176 RESOLUTION ACCEPTING FUNDS FROM THE LOCAL TRAIL CONNECTIONS GRANT PROGRAM, SPONSORED BY THE STATE DEPARTMENT OF NATURAL RESOURCES, TO ASSIST WITH FUNDING A CITY PROJECT TO CONSTRUCT A LOCAL TRAIL CONNECTION TO THE REGIONAL SYSTEM WHEREAS, the City has received notice of award from the State Department of Natural Resources for grant funds to be used in the construction of a local trail connection to the regional system; and WHEREAS, a city-wide plan identifies the need for local trail connections to the regional system, including a connection at the east end of Edgebrook Park to the Southwest Regional Trail; and WHEREAS, the City is preparing final detailed plans for the said trail connection. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of St. Louis Park that: 1. The City of St. Louis Park hereby accepts the grant funds provided through the Local Trail Connections Program. 2. The City will provide matching funds of no less than 50% of the grant monies. 3. The City will maintain for no less than 20 years the trail connection noted herein. 4. The City’s fiscal agent will be: Jean McGann Director of Finance 5005 Minnetonka Blvd. St. Louis Park, MN 55416 Reviewed for Administration: Adopted by the City Council December 19, 2005 City Manager Mayor Attest: City Clerk St. Louis Park Council Meeting Item: 121905 - 4j - Final Payment 33-05 Penn Contracting Page 1 RESOLUTION NO. 05-_____ RESOLUTION ACCEPTING WORK ON WATERMAIN RELOCATION CITY PROJECT NO. 2005-0100 CONTRACT NO. 33-05 BE IT RESOLVED by the City Council of the City of St. Louis Park, Minnesota, as follows: 1. Pursuant to a written contract with the City dated May 2, 2005, Penn Contracting, Inc. has satisfactorily completed the watermain relocation improvements, as per Contract No. 33-05. 2. The Director of Public Works has filed his recommendations for final acceptance of the work. 3. The work completed under this contract is accepted and approved. The City Manager is directed to make final payment on the contract, taking the contractor's receipt in full. Original Contract Price $84,040.00 Change Order 00 Under Run 864.50 Final Contract Price $83,175.50 Previous Payments ($62,506.48) Balance Due $20,669.02 Reviewed for Administration: Adopted by the City Council December 19, 2005 City Manager Mayor Attest: City Clerk St. Louis Park Council Meeting Item: 121905 - 4k - Joint School-City Minutes 11-29-05 Page 1 UNOFFICIAL MINUTES Joint City Council / School Board Meeting Methodist Hospital November 29, 2005 A reception welcoming school board members commenced at 6:00 p.m. with the business meeting being convened at 6:45 p.m. Councilmembers present: Mayor Jeff Jacobs, .John Basill, Phillip Finkelstein, Susan Sanger, Jim Brimeyer, and Loran Paprocki (incoming Ward 3 Councilmember). Councilmembers absent: Sue Santa and Paul Omodt. School Board members present: Keith Broady, Rolf Peterson, Nancy Gores, Jim Yarosh, Julie Sweitzer, Bruce Richardson, and Jerry Timian. City Staff present: Tom Harmening, City Manager and Bridget Gothberg, Organizational Development. School District staff present: Dr. Debra Bowers, Superintendent Mayor Jacobs again welcomed school board members and thanked them for their attendance. He stated the following desired meeting outcomes: • To develop intentional communication guidelines • To discuss how we collaboratively provide leadership creating unity and synergy • To update each other on pertinent projects and undertakings Discussion took place regarding collaboration and communication between the City and School District. Currently, the City and School District work together through Community Education, Boards & Commissions, Children First, Meadowbrook, Housing/Youth/Senior Summit, Joint Calendar/Handbook/Advertising, Summer programs, Lenox, volunteers, funding, DARE, Police Liaison Officers, NORC, Friends of the Arts, Vision SLP, Bookmark in the Park, Day 1, Partacular, Foundations, Inspections, Neighborhood Associations, Remodeling Fair, Elections, bids & gas purchasing. Communication Guidelines Bridget Gothberg presented the draft purpose statement for a strong community and strong school district. She indicated the need for both formal and informal communication between the City Council and School Board to grow their relationship, promote and engage the community. It is incumbent upon both bodies to intentionally create opportunities for this communication to occur. St. Louis Park Council Meeting Item: 121905 - 4k - Joint School-City Minutes 11-29-05 Page 2 Formal communication could include two joint meetings annually for three purposes: 1. Discuss common issues, concerns, and dreams 2. Update each other on projects, goals, and 3. Build positive relationships with each other Informal communication was also encouraged which could include special meetings, sending letters, or asking administrators to handle issues. Discussion took place regarding the City and School community moving in a synergistic direction, and opportunities for joint marketing and branding. Updates were presented on WIFI, IB, Vision Process, Parent Access, Land Sale, Eliot Community Center, and the Meadowbrook Collaborative. Next Meeting The next Joint City Council and School Board meeting will be held in the fall of 2006. Adjournment The meeting adjourned at 10:00 p.m. St. Louis Park Council Meeting Item: 121905 - 4l - Planning Comm Minutes 11-2-05 Page 1 OFFICIAL MINUTES PLANNING COMMISSION ST. LOUIS PARK, MINNESOTA November 2, 2005--6:00 p.m. COUNCIL CHAMBERS MEMBERS PRESENT: Lynne Carper, Claudia Johnston-Madison, Robert Kramer, Dennis Morris, Carl Robertson, Jerry Timian MEMBERS ABSENT: None STAFF PRESENT: Adam Fulton, Meg McMonigal, Gary Morrison, Nancy Sells 1. Call to Order – Roll Call Commissioner Timian arrived at 6:05 p.m. 2. Approval of Minutes: None 3. Hearings A. Excelsior & Grand Phase NW (IV) Preliminary Plat and PUD Location: Wolfe Parkway and Grand Way Applicant: TOLD Development Case Nos.: 05-64-PUD and 05-65-S Gary Morrison, Assistant Zoning Administrator, presented the staff report. He noted that the trash plan is being altered. He also noted that design criteria are being recommended. Commissioner Morris discussed the trash plan. He said he was disconcerted with giving public right-of-way to a private development for trash enclosures; and asked what the arrangements would be. Mr. Morrison said the details had not all been worked out. It was possible the developer would lease the space. Commissioner Morris said that would take away from off-street parking. Mr. Morrison responded that would be true for the first year. He said if an enclosure is built it would be built off-site and would not take any off-street parking. Commissioner Morris said he questions the precedent of providing a development external storage space for trash receptacles. St. Louis Park Council Meeting Item: 121905 - 4l - Planning Comm Minutes 11-2-05 Page 2 Mr. Morrison said many discussions have taken place regarding trash. He said the project is in the last phase and it needs to work aesthetically and operationally. Commissioner Morris and Mr. Morrison discussed design changes which would allow for an interior trash room. Mr. Morrison said a considerable amount of parking would then be lost inside the building. Commissioner Morris said the number of units may need to be altered. Commissioner Morris said he was also concerned about the outdoors display of merchandise. He said the code does not allow giving special permission to allow outside display of merchandise. Mr. Morrison said display is allowed as long as it is less than 100 sq. ft. and as long as it is merchandise being sold inside. Commissioner Morris asked about the purpose of the setback. Mr. Morrison responded that the setback is for clearance of doors. Commissioner Morris said the setback should also allow for visibility into the building which could be obscured by outside displays of merchandise. Mr. Morrison said the displays are a way of allowing some flexibility for the shop owner and it also provides a nice display from the street perspective. Commissioner Johnston-Madison said there currently are parking problems due to delivery parking. She asked if Phase NW would have signs for delivery parking hours. Mr. Morrison said there are loading areas striped off for loading only. He added that double parking of delivery vehicles has been an on-going issue. Chair Carper asked about retail and concerns about grade. Mr. Morrison said newer buildings have to be built to ADA compliance. He said Phase NW is allowed to have up to 6,000 sq. ft. of retail. They are putting in 5,100 sq. ft. so are pretty close to the limit. Commissioner Johnston-Madison asked about fencing near the pool area. Mr. Morrison said the pool area is elevated above ground about 6-8 feet. There will probably be some kind of decorative fence around the pool. Commissioner Johnston-Madison discussed height of Phase NW and Wolfe Park Condominiums. St. Louis Park Council Meeting Item: 121905 - 4l - Planning Comm Minutes 11-2-05 Page 3 Mr. Morrison said the redevelopment plan allowed for a 6-8 story building north of Park Commons Drive, and limited it to 4 stories south of Park Commons Drive. He said a neighborhood meeting was held that included residents of Wolfe Park Condominiums. Commissioner Morris asked if a code standard for window design should be city-wide. Commissioner Morris suggested that trash dumpsters be emptied more frequently if weight is part of the trash removal problem. He added that the developer is willing to sell a second garage parking stall to tenants, which suggests to him that the developer isn’t concerned about losing parking stalls for tenants by building an interior trash receptacle, but is concerned about loss of revenue. Commissioner Morris discussed the grade difficulty. He said he has seen many developments in Minneapolis go in with first floor retail with grade differences accommodated with porches, landings, decks and ramps. Mr. Morrison said the developer has discussed raising the sidewalk by having a split sidewalk. Chad Darter, Director of Construction, TOLD Development, discussed The Grand residential development portion of Phase NW. Trent Maybery, Associate, TOLD Development, discussed the retail portion of Phase NW. He explained why TOLD decided not to go beyond 5,100 sq. ft. of retail. He said it is very difficult to find interested retailers to take space further away from Excelsior Blvd. and especially past Park Commons Drive. He commented on the cost associated with a split level sidewalk to add 1,000 sq. ft. of retail. Mr. Darter discussed TOLD’s work with Waste Management, Inc. in trying to resolve trash issues. He said that trash is picked up at the apartments and Phase NE five or six days per week. He said he expects that trash pick-up will occur 5 times per week at Phase NW. Commissioner Timian said up to this point the developer has done a wonderful job combining public and private space. He said he finds this phase to be the most disappointing in combining public and private space. He said it feels like the typical suburban building designed solely for residents of the building. Mr. Maybery said it was felt that most of the public would be congregating along Grand Way. Commissioner Timian said he understood that all along the project was marketed as if there would be a restaurant along the corner overlooking the park. St. Louis Park Council Meeting Item: 121905 - 4l - Planning Comm Minutes 11-2-05 Page 4 Mr. Maybery responded that TOLD liked the idea of the restaurant. He discussed the problems associated with providing service and delivery at the back of the space. He said that location will probably have to be a front end loaded retail service and delivery type user. Commissioner Robertson discussed how the proposed Phase NE retail was reduced and asked if the proposed Phase NW retail will also be reduced in the near future. Mr. Darter said the retail design for Phase NW won’t change. Commissioner Morris spoke about the vision of the project to combine residential and park. He said all of the food and beverage services are clustered on Excelsior. The northern half of the development doesn’t provide any reason to come up out of the park except for specialty shopping. He said it feels as though there is a rush to complete the project without attending to the details. He said he wants to see pocket stores and mom and pop stores along the parkway portion. He said the grand concourse scheme between the amphitheater and Excelsior Blvd. has a dead spot. The north two blocks have basically turned into residential blocks. Commissioner Kramer asked why the additional residents wouldn’t provide an additional draw for more retail. He commented on the use of medium box retail. He said the project is lacking the essence of neighborhood. He asked where the heart of the neighborhood is located. Mr. Maybery responded that right now the heart of the neighborhood is at the Allegory of Excelsior sculpture between buildings C and D. He said that once The Grand is completed the heart will be right in the middle, where it was expected to be. Mr. Darter discussed the preference of retailers to be on Excelsior Blvd. for exposure. Chair Carper opened the public hearing. Steven Steuck, 8812 W. 36th St., #2, asked when the phase is expected to be completed. He also asked the price range of the units. Mr. Darter said completion is expected to be June, 2007. The price range is $200,000 - $700,000. Jerry Mundt, 3709 Grand, #216, said he was informed at the neighborhood meeting that the height of the new building facing their unit would be 5 stories. He said he was disappointed to learn this. Mr. Mundt said he does like the design, however, which makes the building look like a 4-story building with a fifth floor penthouse. He said he likes the texture and scale of the building. Mr. Mundt said at one time residents of Phase NE were told there would be an entrance for their use of the NW amenities. St. Louis Park Council Meeting Item: 121905 - 4l - Planning Comm Minutes 11-2-05 Page 5 Mr. Darter showed where direct access for Phase NE tenants will be located. Roxie Kraai, 3707 Grand, #416, association board member, said she did not see how trash containers could be located at the end of driveway. Residents are already concerned about enough room for car movement in the winter. She thought there might be room for one trash container only. She discussed retail challenges and suggested that retail that was more affordable and of more interest to the residents might be more successful. Ms. Kraai suggested that a “no u-turn sign” be posted at Grand Way and Excelsior coming from the west. Commissioner Kramer asked what could be done to provide a more user friendly cost structure for retailers. Commissioner Johnston-Madison said that residents had these concerns in the early planning of the development. But the reality of building high quality buildings is the high cost per square foot. She said she remembered the developer saying some time ago that finding retail might be very difficult in Phase NW. Commissioner Timian said the project is working terrifically from the neighborhood point of view. He commented on the narrowing of the town green area. He added that the original vision of the project keeps being compromised. Mr. Mayberry said construction costs have risen astronomically which results in higher rents. He added that it takes a lot of convincing to make national retailers, who can afford the higher rents, to go into a new urbanist style setting. Commissioner Johnston said that this is not new information to her. There wasn’t a model for this type of development. She remembers early neighborhood meetings where everyone hoped the project would attract a more neighborhood type retail, but residents probably knew that was not going to happen. She stated that she is pleased with the way it is turning out. As no one else was present wishing to speak, the Chair closed the public hearing. Commissioner Robertson spoke about the rising cost of construction and problems with the current market which would prohibit including a restaurant on the north side of the project. Commissioner Morris said he understood that markets change. He stated that the City had a vision and an expectation of retail and restaurant in the Phase NW. He said he can’t believe that area can’t be utilized in the way it was intended. St. Louis Park Council Meeting Item: 121905 - 4l - Planning Comm Minutes 11-2-05 Page 6 Commissioner Robertson and Commissioner Morris discussed marketing and whether or not the site should be designed for a restaurant. Commissioner Morris said he sees a great increase of ethnic, trendy restaurants in the Minneapolis. He said he isn’t willing to give up the vision of drawing people off of Excelsior Blvd. into the development and from the park into the development. Commissioner Robertson said Commissioner Morris’ remarks were convincing. Commissioner Robertson stated that the trash problems must be solved with this phase. Commissioner Johnston-Madison suggested that the developer may need to find a new trash contractor. She said she is concerned with asking the developer to try to find a restaurant that can afford the retail area only to have the site be vacant. She said there were a large number of residents who never believed a restaurant would go into Phase NW. Commissioner Johnston-Madison said she agreed there is a heart missing from the development. Ms. McMonigal said that for about nine months staff has been talking with TOLD about Phase NW. She said TOLD did start designing with a restaurant on the corner of Grand Way and Park Commons Dr. She said as they designed the building it became harder and harder to solve restaurant and trash issues together. She said much research was done regarding collecting garbage underground, using separate elevators, and using separate trash rooms. The mixing of residential with a restaurant became very difficult. She said there may be as much of a design issue as a marketing issue. Mr. Maybery said he has spoken with almost every restaurant in the Twin Cities. TOLD wants restaurants in the project but everyone they have spoken with will not front end load their space. He said the challenge is this space needs to be front loaded. He added that another challenge is that even if service and delivery could be accomplished in the back, there are still the issues of trash, smell and noise which affect all the residential units above and around the restaurant. Mr. Maybery suggested that a non-restaurant retail use or service provider can continue the draw to bring people into the development. Commissioner Morris said he agreed that the draw didn’t need to be a restaurant. Commissioner Kramer said he acknowledged that the area isn’t a Manhattan-type urban setting, but that the vision should be maintained in the final phase or it will be lost. He said he still doesn’t see anything other than a few retail shops and a few condos and apartments. He stated that he doesn’t see any urban kind of energy in the development. There is no on-going kind of synergy. He said that for a lot of people Wolfe Park is hardly a draw for nine months of the year. People who live in the development don’t shop there. He said he maintains that this is the City’s opportunity to either hold onto the vision or send the developer back to the drawing board. St. Louis Park Council Meeting Item: 121905 - 4l - Planning Comm Minutes 11-2-05 Page 7 Mr. Morrison commented that construction activities have prevented Grand Way from being the heart of the project. Grand Way has not been able to be fully utilized because roads have been shut down and traffic patterns have been altered. He said once Phase NW is completed, Grand Way and Wolfe Park will be fully utilized to create energy. He commented that outside display and signage are ways to help retailers with visibility. Tom Burke, principal, TOLD Development, spoke at some length about the development. He said he was surprised to hear the Planning Commission’s disappointment. People are telling him they are elated with the project. He sees people walking and sitting on the town green. He said 50-70% of their retail tenants are “ma and pa” tenants. Mr. Burke said they will continue to work on trash issues until it works. He said the project as designed was not designed because of their vision of retail. It was designed in a real world setting. He spoke about marketing challenges and the nature of retail. Mr. Burke said the proposed building meets the same public needs as all the other buildings. He said TOLD still believes the town green works. He stated that they continue looking for uses for the residents. Mr. Burke stated that they need to get started in January with Phase NW. They believe they have delivered everything as promised. He asked that the Commission consider what the developer has given, what the real world is about, and that it is a wonderful project because of the mutual efforts of TOLD and the City. Commissioner Timian commented that Commissioners don’t believe it is a failed project. He said it is a terrific project and a wonderful addition to the community. He said the Commission just wants to see it finished in the way of the original vision and design. He remarked that other shops are opening along Excelsior Blvd. in response to Excelsior and Grand. Commissioner Robertson agreed that the vision is important but change has to be acknowledged. He commented that in the real world, external forces make plans change. He said the design problems regarding accessibility and grade changes are very real and very difficult. He stated that the area north of Grand Way has been a construction zone and is uninviting but it has the potential to develop its own energy. Chair Carper discussed realities of the marketplace that have affected the intentions of the development. He said he was disappointed with the trash issues. He said overall it was a marvelous project and he was pleased with the retail mix. Commissioner Robertson made a motion to recommend approval of the Preliminary and Final Plat for Park Commons East 4th Addition and a Major Amendment to the Park Commons East PUD granting Final approval for Phase NW (Excelsior & Grand Phase NW) subject to conditions recommended by staff, adding that the City Council be very cognizant of the Commission’s discussion and thoughts regarding earlier designs. Commissioner Kramer asked that the City Council find a draw that attracts traffic off of Excelsior Blvd. The motion passed on a vote of 4-2 (Morris and Timian opposed). St. Louis Park Council Meeting Item: 121905 - 4l - Planning Comm Minutes 11-2-05 Page 8 B. Hoigaards Village Preliminary Plat, Variance from the Subdivision Ordinance, PUD, and Vacation Location: 5616 36th Street West, 3550 State Highway No. 100 South, 3501 Xenwood Ave. South, 5626 36th Street West Applicant: Union Land II, LLC Case Nos.: 05-61-S, 05-62-PUD, 05-63-VAC Adam Fulton, Associate Planner, presented the staff report. He stated that the applicant is planning to do some streetscape improvements that will be outlined in more detail when the Final Plat is considered. Marie Cote, SRF, traffic study consultant, explained how the traffic study was undertaken. Commissioner Timian asked if the 36th St. bridge at Highway 100 has capacity for bicycles as well as foot traffic. Mr. Fulton said currently there is a large median in the center of the bridge. It hasn’t been studied as to whether bicycles would be appropriate for the bridge. Commissioner Johnston-Madison asked if conditions of approval would include retail window design guidelines. Ms. McMonigal said window design guidelines should be added to conditions of approval. Commissioner Robertson asked about the two properties which are within the project but which are not part of the project. Ms. McMonigal said that the developer tried to include the two buildings in the project. One building had an unwilling seller, and the other had a very steep price so they were not included in this development. Commissioner Kramer asked if trash design had been discussed. Ms. McMonigal said there have been discussions about trash and it will be designed in the project. Commissioner Morris asked why easements can’t be put around the property line. Mr. Fulton explained that will be included in the final plat. He said it’s anticipated that there will be drainage and utility easements around most of the property lines. He said the applicant is required to apply for the subdivision variance because the building which will be fronting on 36th St. is very close to the property line and will not be able to feature the 10 ft. easement. St. Louis Park Council Meeting Item: 121905 - 4l - Planning Comm Minutes 11-2-05 Page 9 Commissioner Morris asked about transit orientation. Mr. Fulton said it is anticipated that a light rail station at Wooddale Ave. will be provided in the future. He said including the proposed density in the site is beneficial for light rail in the future. Commissioner Morris said he is uncomfortable designating the site as transit oriented based on something that might happen 20-30 years from now. He said currently it is just a regular development on a regular street with little in the way of alternative transportation. He commented that providing 660 parking spaces gives an indication of how much transit is going to be conducted. He said there is very little pedestrian orientation. Ms. McMonigal said since it takes several years to build this development and future development, the idea is to set it up for future transit so there is density when the light rail comes. She said the City is proceeding on an alternative analysis for the rail and hopefully that will help speed up the process. She said there is a lot of activity on the SW Corridor and the City is very optimistic that rail will come sooner than later. She said she thinks the City would be remiss if it didn’t set this area up so people can be less auto dependent both now and in the future. She said the project area is currently connected to a heavily used bicycle commuter corridor into downtown Minneapolis. She commented on pedestrian connections within and outside of the development. Commissioner Morris asked if there was feasibility for a better setback for future development of a retail corridor on W. 36th Street. Mr. Fulton said W. 36th St. has 100 ft. of right-of-way and for that reason it was determined that the building’s location was not inappropriate. He said there may better ways to utilize W. 36th in order to incorporate more modes of transportation within the existing right-of-way. Commissioner Johnston-Madison commented on about pedestrian connections saying that realistically in this climate people won’t be walking to Target and Byerly’s six months out of the year. She said she agreed that plans need to be made with the future in mind but she’d like recommendations to reflect the reality of transportation improvements actually occurring. Noah Bly, Project Manager, Urban Works Architecture, spoke on behalf of the applicant Union Land II, LLC. He spoke about opportunities and challenges they have faced, themes and testing of the design, and the use of hardi-plank as a Class I material. Commissioner Morris asked what municipalities have approved hardi-plank as Class I material. Chair Robertson responded that Woodbury has approved hardi-plank as a Class I material. St. Louis Park Council Meeting Item: 121905 - 4l - Planning Comm Minutes 11-2-05 Page 10 Mr. Fulton said staff researched this question and the opinions were mixed. Several cities recognize it as Class I material, several cities do not have classes, and several cities say it might be Class I or II. Ms. McMonigal said the use of hardi-plank was not addressed in the staff report, but staff did want to discuss it with the Commission. Chair Carper asked Mr. Bly to speak about plans if Hoigaards chooses not to be part of the development. Mr. Bly said if Hoigaards chooses not to be part of the development, the project would still have a 25,000 sq. ft. retail store. The building may be subdivided. The parking will be adequate either way. There was a discussion about the active rail line which separates the development from the direct trail connection. Commissioner Timian asked about the park space. Mr. Bly said the park is approximately 10,000 sq. feet. Commission Timian asked if sidewalk could be put around the entire pond. Mr. Bly responded that the grade would prohibit sidewalk about the pond area. Chair Carper opened the public hearing. As no one was present wishing to speak, he closed the public hearing. Commissioner Morris asked to table the issue of hardi-plank. He said it has been a topic for the last 4-5 years. The use of hardi-plank has been approved for some developments in St. Louis Park. He said he’d like to learn how those developments have turned out after weathering. He said he isn’t opposed to allowing some use of it, but he would not like to see a 60% ratio of the material. Mr. Fulton presented the applicant’s proposed building classifications. He said final determination and recommendation on the material could be made at consideration of the final PUD and plat. Commissioner Morris asked if industry standards exist for cementitous siding. Mr. Fulton said according to his research, cementitous siding is highly comparable to cementitous stucco which is classified as Class I. St. Louis Park Council Meeting Item: 121905 - 4l - Planning Comm Minutes 11-2-05 Page 11 Commissioner Robertson said no matter what material is used, if it isn’t flashed or installed well it will fail. He said he is very familiar with hardi-plank. He said he has argued for its use as a Class I material to many Planning Commissions and City Councils. He commented that it weathers very well. Commissioner Morris said the percentage of materials Mr. Fulton presented seem realistic. Commissioners Morris and Robertson agreed that the City’s design standards should reflect that a variety of Class I materials are desired. Commissioner Kramer asked if there were plans to create any small business within the development. Mr. Bly said Hoigaard’s has indicated they do want a coffee shop within their store. He spoke about how other buildings might redevelop in the future for small scale retail. Chair Carper asked about the recreation area. Mr. Bly said there will be pathways, nodes, grilling areas, and perhaps a tot lot. He said there is not enough space for ball games. Commissioner Robertson spoke about the Elmwood Study and how the proposed project falls within the study conclusions for the future. He said he likes the project at this preliminary stage. He said it is moving in a good direction. He said it is a large enough project to work as a catalyst for 36th Street, also a goal of the Elmwood Study. Commissioner Robertson said he was disappointed in the existing buildings which aren’t part of the development. He hopes those buildings can be added to make the development a more complete project. Commissioner Morris asked what percentage of the 9.6 acres is zoned Industrial. Mr. Fulton responded that Hoigaards is currently zoned C-2 Commercial, and the two southerly parcels between 36th and 35th St. are currently zoned Industrial. Commissioner Robertson said he has been vocal about losing industrial properties. He said in looking at the highest and best use in the long term for this area it makes sense for it to be changed from Industrial. Commissioner Morris discussed traffic concerns and upcoming requests for residential mixed-use on 36th St. which will increase traffic problems. Commissioner Robertson moved approval of Hoigaard’s Village Preliminary Planned Unit Development (PUD), Preliminary Plat, Variance from the Subdivision Ordinance for Easements for the south side of Lot 1 only, and vacation of an alley. Commissioner Johnston-Madison seconded the motion, and the motion passed on a vote of 6-0. St. Louis Park Council Meeting Item: 121905 - 4l - Planning Comm Minutes 11-2-05 Page 12 4. Unfinished Business 5. New Business 6. Communications 7. Miscellaneous 8. Adjournment The meeting adjourned at 9:40 p.m. Respectfully submitted, Nancy Sells Administrative Secretary St. Louis Park Council Meeting Item: 121905 - 4m - Planning Comm Minutes 11-16-05 Page 1 OFFICIAL MINUTES PLANNING COMMISSION ST. LOUIS PARK, MINNESOTA November 16, 2005--6:00 p.m. COUNCIL CHAMBERS MEMBERS PRESENT: Lynne Carper, Claudia Johnston-Madison, Robert Kramer, Dennis Morris, Carl Robertson MEMBERS ABSENT: Jerry Timian STAFF PRESENT: Adam Fulton, Meg McMonigal, Gary Morrison, Nancy Sells 1. Call to Order – Roll Call 2. Approval of Minutes of October 19, 2005 Commissioner Robertson moved approval of the minutes. Commissioner Johnston- Madison seconded the motion. The motion passed 5-0. 3. Hearings A. Comprehensive Plan Amendment and Rezoning from Industrial to Two-Family Residential (Continued from October 5, 2005 and October 19, 2005) Location: 6300-6312 Cambridge Applicant: Julie Murphy Case Nos.: 05-50-CP and 05-51-Z Gary Morrison, Assistant Zoning Administrator, presented the staff report. He explained that the applicant would like to sell the property. The applicant has stated they cannot get financing or insurance because the property’s use is legally non-conforming. They are presenting rezoning as a solution to make the property conforming. Mr. Morrison said staff review has found that the property has a legally non-conforming land use as a residential use in an industrially zoned property. There are numerous other legal non-conforming uses throughout the City. Staff acknowledges that financing and insuring these properties may be difficult, but not impossible. Mr. Morrison referenced a state law passed in 2004 which allows any legal non-conforming structure to be replaced in its entirety within one year of being damaged or removed. Mr. Morrison stated that staff recommendation is for denial of the requests for Comprehensive Plan amendment and rezoning. St. Louis Park Council Meeting Item: 121905 - 4m - Planning Comm Minutes 11-16-05 Page 2 Commissioner Robertson asked if there was any zoning which would allow residential, but also allow much of what is allowed in the Industrial District so that the property could become conforming but not have to be residential. Mr. Morrison said the closest would be R-4 where there is a permitted office use if less than 2,500 sq. ft., but the applicant’s property exceeds that size. Commissioner Morris asked about Certificates of Rebuild. Mr. Morrison said those requests come to him, and he will not issue those certificates. He commented on laws and ordinances changing and without an inspection, staff can’t say for certain that a property meets code. Commissioner Morris said in 2002 in order the list the property the owner would have been required to get a City inspection to certify the property meets code. Mr. Morrison said owners get an inspection under the building code and housing code, but not the zoning code. Commissioner Morris asked if the Certificate of Rebuild would be a zoning letter. Mr. Morrison responded a Certificate of Rebuild would encompass a housing inspection, code compliance and zoning compliance. Steve Murphy, husband of applicant Julie Murphy, said that mortgage companies are adding more layers of requirements due to changing laws and codes. He explained that three years ago when the property was purchased, the appraisal did not require noting whether or not the property was a legal non-conforming use. At that time, the financing company was more concerned about value, not whether or not it was a legal non- conforming use. Mr. Murphy spoke about a property he owns in Hopkins which is also a double bungalow in similar circumstances. He tried selling it in Spring, 2005, but could not sell it because the City of Hopkins refused to issue a Certificate of Rebuild. Their ordinances were contrary to state law. He explained that he faxed the state statute to the mortgage company. It was determined that since City of Hopkins staff could not give a legal opinion, the document was not acceptable. The mortgage company had to have something that would state it was rebuildable. In the City of Hopkins, he was the first property owner to request a Certificate of Rebuild. Mr. Murphy said he believes the City of St. Louis Park will be receiving many requests for Certificates of Rebuild as financing is getting very difficult. Owners have to be able to prove that their properties are rebuildable. He went on to say that an undue hardship is created for any legal non- conforming use because of the way things have changed in the last two years in the financing and insurance industry. St. Louis Park Council Meeting Item: 121905 - 4m - Planning Comm Minutes 11-16-05 Page 3 Commissioner Kramer asked for clarification about the 2004 state statute as it regards the applicant’s property. Mr. Morrison said nothing has changed from the City’s perspective. Zoning has not changed. State law has changed to the owner’s benefit in allowing them the right to completely rebuild the structure if it is damaged or removed, so they’ve had some relief in that regard. He said that previously, if a property was damaged beyond 60%, it had to be removed and could not be rebuilt. Commissioner Johnston-Madison commented that what changed from the past is that the legal non-conforming status is now noted in the appraisal. Mortgage companies don’t want to underwrite a mortgage that is not saleable in their portfolio. She asked for more information as to why the Zoning Administrator cannot issue a Certificate of Rebuild. Mr. Morrison said he has been asked a couple of times to issue such a certificate and he has refused because he does not have a physical inspection review of the property to make sure all issues are met. Typically requests are made for these kinds of letters without an as-built survey so he has nothing to review. He is just asked to sign off on the letter saying yes, it can be rebuilt. Most of the time he cannot do that because he doesn’t have the data. Mr. Morrison went on to say that zoning letters have been issued in the past. Over the last few years those letters have evolved into two-page requests about a multitude of issues. It becomes a very labor intensive process, especially with large complexes, verifying that it meets every single code. Staff provides the zoning and flood information and lets the applicant know the files are open for their review. Ms. McMonigal, Planning and Zoning Supervisor, added that many cities no longer answer these kinds of requests. They will answer zoning and floodplain questions. Mortgage companies are invited to review the files, complete a survey and do the research. After completing the research, mortgage companies can certify the information back to the lender or insurance company. Commissioner Robertson said it seems the applicant is asking to have the zoning changed to simplify this. He said that zoning is a whole different issue and the alternative is to put the burden back on the applicant to take care of this a different way. He said he presumed it would be difficult and expensive. He asked staff if it could be done. Ms. McMonigal responded she believed it could be done. She felt if the applicant took the state law back to a lender or had an attorney take it back to the lender, it would work. Commissioner Johnston-Madison asked Mr. Murphy why the lender isn’t providing this certification service. St. Louis Park Council Meeting Item: 121905 - 4m - Planning Comm Minutes 11-16-05 Page 4 Mr. Murphy responded that the lender wants the information and they want the city to provide it. He continued by saying that all the lender wants to know is if the property is rebuildable. He said in Hopkins, the City Attorney prevented staff from giving a legal opinion to decipher the state law and how it applies to local municipalities. Tom Scott, City Attorney, said there isn’t any problem pointing out the City ordinance and the state statute. Normally the mortgage company reads the state statute and makes its own conclusion about rebuilding. He said typically City Attorneys advise staff not to render legal opinions. Informal discussion and clarification is conducted but legal opinions are not provided. In reference to the questionnaires requesting certification of a multitude of other issues, Mr. Scott said he agrees with staff that it is the mortgage company’s responsibility to research and certify those issues. In response to a question regarding whether or not City code is in compliance with the 2004 state statute, Mr. Morrison said the code has not been amended to be consistent with the recent state statute. He added that the state statute supercedes the city ordinance. Ms. McMonigal said staff is working on that particular amendment. Mr. Murphy stated that if state law changes again they will still have a problem with being non-conforming. He said if the property is rezoned to R-3 the property will be safe forever. He said ultimately the market is the best arbiter of what is the best use of the property. He said as the property abuts the R-3 district, it would be an easier way to go. Mr. Murphy commented on the decrease in the value of the property as currently zoned. He explained the benefits of rezoning to the City in that it takes away the risk for buyers and the value increases. He said the economics aren’t there for a commercial building. Currently it is difficult to obtain a Certificate of Rebuild and it is difficult to sell. Commissioner Robertson asked if the property had any historic significance. Mr. Morrison said that NordicWare is the only property with historic significance in the area. Commissioner Morris asked if the lender documents provided by the applicant came from buyers. Mr. Murphy said he had provided a couple of different mortgage company’s views. Commissioner Morris said he didn’t see any evidence that anyone had not been able to secure financing. Mr. Murphy said buyers had not qualified because of zoning. St. Louis Park Council Meeting Item: 121905 - 4m - Planning Comm Minutes 11-16-05 Page 5 Commissioner Morris said his reading of the letter shows that it has been difficult but that there is a new state statute and those difficulties are being overcome. He said he thinks what the applicant is explaining is a traditional problem. But since statutory legislation has recently been passed to address the problem, it seems that the lenders aren’t coming on board and adjusting their underwriting review requirements. Commissioner Morris said the industry is exhibiting the problems, not the municipal bodies which provide information to the industry. He said there are probably dozens of legal non-conforming properties that are sold annually. He said he didn’t think Comprehensive Plans and zoning codes need to be changed to accommodate lender’s demands for assurance of their loans. Chair Carper opened the public hearing. As no one was present wishing to speak, the Chair closed the public hearing. Chair Carper asked how many similar properties might exist. Mr. Morrison responded that there are many legal non-conforming structures and uses, and duplexes are probably the most common. Ms. McMonigal said the question isn’t just about rezoning, but also regards looking at the long range plan. Zoning changes then follow Comprehensive Plan changes. Commissioner Robertson said he sympathizes with the applicant’s problems, but the highest and best use is for the property to remain industrial. Mortgage companies should not be dictating zoning or requesting letters of absolute guarantee. He said it appears that the state statute protects the property for rebuilding. Commissioner Morris said he was somewhat divided on the arguments. He understands the seller’s hardship but said he’s uncomfortable using a spot zoning method to correct the issues of financial institutions. He commented that the property is up to City code, it is sellable, it may be more difficult to find a lender willing to underwrite the loan, the state has identified problems and proactively changed some statutes on it, and the City is working on its mechanism for complying with the state statute. He said it’s not in the Commission’s realm to determine the market. He said he supports the staff recommendation of denial. Commissioner Kramer said he also sympathizes with the applicant, but said he felt the applicant had options. He said there is always a market for insurance at some premium, the property still has rental income, and contract for deed could be used for mortgage financing. Commissioner Kramer said changing the zoning is the wrong tool for this situation. He said he supports the staff recommendation. St. Louis Park Council Meeting Item: 121905 - 4m - Planning Comm Minutes 11-16-05 Page 6 Commissioner Johnston-Madison said she also sympathized with the applicant but she is concerned about setting a precedent for rezoning. She said it is imperative that the City amend the zoning code as quickly as possible to reflect the state statute. Presenting the amendment to a mortgage company could benefit the seller. She said it is a difficult decision but she also supports the staff recommendation. Chair Carper said he was also concerned about precedent and the unintended consequences of the rezoning request. Commissioner Morris made a motion to recommend denial of the Comprehensive Plan amendment to change the land use designation from Industrial to Medium Density Residential and denial of a zoning map amendment to change the zoning designation from IG-General Industrial to R3 – Two Family Residential. Commissioner Robertson seconded the motion. The motion recommending denial passed on a vote of 5-0. 4. Unfinished Business 5. New Business A. Resolution of Appreciation for Michelle Bissonnette Commissioner Morris moved approval of Resolution No. 74 recognizing Michelle Bissonnette’s thirteen years of service as a Planning Commissioner. Commissioner Robertson seconded the motion. The motion passed on a vote of 5-0. Commissioners remarked on Ms. Bissonnette’s contributions to the Commission. 6. Communications A. Recent City Council Action – Nov. 7, 2005 7. Miscellaneous 8. Adjournment The meeting was adjourned at 7:15 p.m. A study session began at 7:20 p.m. Respectfully submitted, Nancy Sells Administrative Secretary St. Louis Park Council Meeting Item: 121905 - 4n - Telecomm Minutes 10-06-05 Page 1 OFFICIAL MINUTES ST. LOUIS PARK TELECOMMUNICATIONS COMMISSION MEETING OF OCTOBER 6, 2005 ST. LOUIS PARK COUNCIL CHAMBERS MEMBERS PRESENT: Bruce Browning, Rick Dworsky, Dale Hartman, Ken Huiras, Bob Jacobson, Mary Jean Overend and Rolf Peterson MEMBERS ABSENT: None STAFF PRESENT: Reg Dunlap, Civic TV Coordinator; John McHugh, Community TV Coordinator OTHERS PRESENT: Arlen Mattern, Time Warner Cable Public Affairs Administrator 1. Call to Order Chair Dworsky called the meeting to order at 7:03 PM. 2. Roll Call Present at roll call were Commissioners Browning, Dworsky, Hartman, Huiras, Jacobson, Overend and Peterson. 3. Approval of Minutes a. Minutes of July 26, 2005 It was moved by Commissioner Huiras, seconded by Commissioner Jacobson, to approve the minutes of July 26, 2005, without changes. The motion passed 6-0-1, with Commissioner Peterson abstaining because he did not attend. b. Minutes of August 4, 2005 It was moved by Commissioner Jacobson, seconded by Commissioner Huiras, to approve the minutes of August 4, 2005, without changes. The motion passed 7-0. 4. Adoption of Agenda Commissioner Huiras asked if there would be a wireless update? Mr. Dunlap replied he would include it under staff communications. 5. Public Comment – None 6. New Business - None St. Louis Park Council Meeting Item: 121905 - 4n - Telecomm Minutes 10-06-05 Page 2 7. Old Business A. Franchise Renewal Update Mr. McHugh reported another proposal was received and indicated with two changes they could present it to City Council and suggest approval. The changes were the length of the transition (Time Warner staff continuing to do local origination programming) and PEG fees (Public, Educational and Government access support). This will go to City Council October 10th. Commissioner Huiras asked if the City would take over local origination? Mr. McHugh replied yes. The issue was the transition time. Commissioner Jacobson asked if they would do all local origination? Mr. McHugh replied currently Time Warner does a program called “Time Warner Connections,” about cable services and other general topics, which would not be continued. B. Transfer of cable system from Time Warner to Comcast Mr. Dunlap reported on the transfer and referenced a handout comparing Comcast and Time Warner in multiple cities. The chart showed the number of channels on basic and St. Louis Park had three to six more channels. St. Louis Park residents pay a little more for the standard package than other cities but receives more channels. Mr. Mattern noted that the cheapest Time Warner digital package was actually $49.95, not including the $7.95 fee for the required converter. Mr. Dunlap indicated there was a $3-5 difference in converter boxes. Comcast does not charge as much as Time Warner. Commissioner Browning thought a comparison of broadband services and prices would be useful. Commissioner Huiras asked which channels they wouldn’t get with Comcast? Mr. Dunlap replied with 120 channels it was difficult to determine, but that the similar packages had substantially similar channel lineups. Commissioner Huiras asked the status on studio access with the transfer? Mr. McHugh replied the Time Warner proposal did not address their studio. Time Warner staff would be intact during the transition. If there were a one-year transition, the expectation would be the City would work with a partner to construct a new studio. Commissioner Huiras asked if they could still use the high school studio? Mr. McHugh replied yes, however the time frame was a narrow (between 4-6 PM and not on weekends). Commissioner Overend requested local origination information be put into graph form. St. Louis Park Council Meeting Item: 121905 - 4n - Telecomm Minutes 10-06-05 Page 3 Commissioner Huiras asked the status of people with Earthlink, AOL or Roadrunner with a transition period during the transfer? Mr. Dunlap replied they had a draft report with Comcast addressing the change from AT&T email accounts. The transition period would probably be 7-9 months. Commissioner Huiras asked if they would have the option to stay with Earthlink or another provider? Mr. Dunlap didn’t believe so. Commissioner Browning asked how connection speeds compared? Mr. Mattern believed Comcast had upgraded to five megabits per second, the same speed as Time Warner’s service. Commissioner Huiras asked about the cost? Mr. Mattern was unsure, $42 or $44.95, not including the modem. Commissioner Huiras asked if staff had talked with the City of Columbia Heights because their franchise expires in 2006? Mr. Dunlap replied no, but that might be useful. Commissioner Huiras asked if Council needed the Commission to do anything? Mr. Dunlap replied that Council had been working directly on this and did not need a motion on the transfer. Commissioner Jacobson was concerned about the transfer being complete and the due date of October 15th. Mr. Dunlap responded that the transfer was linked with the renewal. Council was aware of what was occurring and if needed, could agree to an extension. Commissioner Jacobson believed Comcast was not very forthcoming with information. Commissioner Huiras asked if it was between the City, Time Warner and Comcast? Mr. Dunlap indicated the transfer was between Comcast and the City. Commissioner Jacobson asked what Time Warner’s function would be after the transfer and if they would have anything to do with St. Louis Park, would they be in the same facilities or moving? Mr. Mattern did not know. They will be at the facilities in Minnetonka until they are officially a Comcast system. They didn’t believe the transfer would occur until the second quarter of 2006. At that point they would know where they would be located. Commissioner Browning indicated once the transfer took place, Time Warner would be out of the picture. Mr. Mattern replied that was correct. They would still be servicing as a Comcast operator in St. Louis Park. Commissioner Overend asked about a comment by Ms. Donnelly-Cohen (Comcast ) in the previous minutes, that they were not allowed to talk about the transfer? Mr. Mattern responded it would violate Federal law because they were not the operator. St. Louis Park Council Meeting Item: 121905 - 4n - Telecomm Minutes 10-06-05 Page 4 Emergency Alert System update Mr. Dunlap reported he tested the digital alert system, which took approximately seven minutes. He believed it worked well. Commissioner Browning asked if this was just for the digital tier, not analog? Mr. Dunlap replied yes. Commissioner Huiras asked if there was a delay for analog? Mr. Dunlap replied it was only a few seconds. Commissioner Browning asked why there was a delay for the digital? Mr. Dunlap responded audio and video files needed to be loaded into the system from another computer system. C. Update on Time Warner Cable franchise fee review Mr. Dunlap stated the final version of the report had been received in the last few days and they hadn’t given it to Time Warner yet. They were meeting with attorneys to determine if they should begin negotiating an outcome to the franchise fee review. This review was not as detailed as an audit. The fee on a franchise fee issue was the largest of the possible underpayments. The 5% of the bill that goes to the City is collected from the subscribers, but Time Warner is responsible to pay that. A court case established that 5% of the bill should actually be added to the revenue on Time Warner’s books before they figure out how much is owed as a payment to the City for the use of right of way. The City hadn’t been collecting this amount in the past. For the three year period that they did the franchise fee review, the amount was $60,000. The total amount identified in the franchise fee review that Time Warner could possibly owe was between $60-73,000. The attorney would assist with the next steps to determine how much Time Warner needed to pay. This was linked to the franchise transfer and renewal and would go to City Council in the next few weeks. Commissioner Huiras asked about the letter in the packet from Mr. Mattern regarding a $5 fee for checks. Mr. Mattern replied the fee was for customers calling into a customer service representative who were using an electronic check. There was no fee for sending in a check. It was not for walk-in customers. Commissioner Huiras asked if the fee was applied for using a credit card? Mr. Mattern replied yes, if they used a customer service representative. Credit card payments can be done without using a customer service representative, using the automated telephone tree features. Commissioner Huiras stated if a customer had an issue with their bill and needed to speak with a customer service representative to work it out, would they still need to pay the fee? Mr. Mattern didn’t believe there would be a fee charged when discussing a bill. St. Louis Park Council Meeting Item: 121905 - 4n - Telecomm Minutes 10-06-05 Page 5 Mr. McHugh clarified that it would be a one-time charge conducted over the telephone using either a credit card or check. Reading the letter, it appeared if someone walked into the cable store and wanted to write a check, there was a fee. Commissioner Jacobson asked if a handicapped person needed to use a customer service representative to make a payment had been taken into consideration? Mr. Mattern was not sure it had been addressed. They could waive the fee if necessary if a situation like that arose. 8. Reports A. Complaints Commissioner Browning referenced a complaint from August 15th regarding I-Net issues at Westwood Nature Center and asked if it had been resolved? Mr. Dunlap replied he had not gotten an update, but they had a service call set up. Mr. Mattern added it was being addressed and he would follow up. Chair Dworsky asked if they could insert text on the NASA channel to inform viewers when the next broadcast would be? Mr. Dunlap replied the school purchased a digital receiver to put the NASA signal on from the high school and there should not be any more interruptions unless there are technical problems. Commissioner Browning asked if they monitored the channel? Mr. Dunlap replied yes. Commissioner Huiras asked if the same were true for channel 14? Mr. Dunlap responded people should contact School District video staff if there is a problem, because they are not always aware there is an issue. 9. Communication from the Chair A. Summary of NATOA Conference Chair Dworsky reported on the conference. He went to the technical sessions. He viewed the emergency operating center in Arlington, Virginia, which included buildings such as the Pentagon, and said it was very insightful. They had a backup computer system at a separate location. Their I-Net was done by fiber. They were open to hearing from people like the Commission to answer questions about what could be done better at their own center. They dispatched some of their team to New Orleans. There was also a group from Ricochet at the conference who said cities had the ability to use their wireless systems that had been built about 5 years ago, which was something that could be explored. Mr. McHugh asked if they had a reverse 911 capabilities to call homes if there were an emergency? Chair Dworsky replied they didn’t talk about that. They talked about other ways to communicate (by internet, satellite, voice over internet phone, radio and cell phone). They wanted to evolve to GPS by their cell phones to be able to physically locate people. St. Louis Park Council Meeting Item: 121905 - 4n - Telecomm Minutes 10-06-05 Page 6 10. Communications from City Staff Mr. Dunlap indicated Council had directed staff to put together a proposal on what to do next for providing wireless. They could do nothing, do a pilot project for a portion of the city, or do a full citywide wireless project. Commissioner Huiras asked if Ricochet was part of wireless project? Mr. Dunlap replied it was a separate system. The system was installed in St. Louis Park in 2000, but he was not sure if they had any subscribers before the company went bankrupt and discontinued the service. The service cost about $80 for a 128 kilobits per second service. He didn’t believe the Ricochet equipment was any part of the City’s wireless proposal because it was unlikely it could be upgraded to offer faster speeds. Commissioner Huiras asked if they would look into it? Mr. Dunlap was unsure. Mr. McHugh indicated some of the things that might be similar were the source of power and the physical locations of the transmitters. As far as being able to repurpose the older equipment, that was an unknown. Commissioner Huiras asked who owned it? Mr. Dunlap responded the company that installed it went bankrupt and it was purchased by a creditor. They were located on City- owned utility and light poles. Chair Dworsky stated that the frequencies worked in different ways. Commissioner Jacobson reported he did further follow up on WiFi health issues and on his Internet search, most of the hits were legal cases. In most cases they never found anything wrong and no evidence of health issues. Commissioner Browning asked about Minnetonka and Edina, who had decided not to proceed with wireless. Was that because of health related issues or enough other issues that they didn’t proceed? Mr. Dunlap replied Clint Pires followed up and believed they didn’t go forward because of other reasons, not health issues. Mr. Dunlap reported that Jerry Quilling, a previous Commission member, had received an award for his years of service in the Civil Air Patrol. 11. Adjournment Commissioner Browning made a motion, Commission Huiras seconded to adjourn at 8:00. The motion passed. The motion passed 7-0. Respectfully submitted by: Amy L. Stegora-Peterson, Recording Secretary St. Louis Park Council Meeting Item: 121905 - 4o - HA Board Minutes 11-09-05 Page 1 MINUTES Housing Authority St. Louis Park City Hall, Westwood Room St. Louis Park, Minnesota Wednesday, November 9, 2005 5:00 p.m. MEMBERS PRESENT: Commissioners Catherine Courtney, Andria Daniel, Steve Fillbrandt and Judith Moore. Commissioner Anne Mavity arrived at 5:23 p.m. STAFF PRESENT: Sharon Anderson, Jane Klesk, Kevin Locke and Michele Schnitker 1. Call to Order Commissioner Courtney called the meeting to order at 5:00 p.m. 2. Approval of Minutes for October, 2005 The October 19, 2005 minutes were unanimously approved. 3. Hearings – None 4. Reports and Committees – None 5. Unfinished Business – None 6. New Business a. Contract Approval for Architectural Services for the Capital Fund Program (CFP) Ms. Anderson reviewed the contract for architectural services with Studio Five Architects. The architect is proposing a fee of $16,200 plus $2,000 for reimbursable items, for a potential total fee of $18,200. Commissioner Fillbrandt moved for Contract Approval for Architectural Services for the Capital Fund Program (CFP), and Commissioner Daniel seconded the motion. The motion passed 4-0, with Commissioners Courtney, Daniel, Fillbrandt and Moore voting in favor. St. Louis Park Council Meeting Item: 121905 - 4o - HA Board Minutes 11-09-05 Page 2 b. Approval of Resolution No. 541 Supporting the Transfer of Affordable Housing Incentive Fund for Land Trust Home Ownership Units Ms. Schnitker explained that Hennepin County Housing and Redevelopment Authority has approved the transfer of a $70,000 Affordable Housing Incentive Fund loan from Master Development Group to West Hennepin Affordable Housing Land Trust (WHAHLT) for the purpose of creating two affordable, single family ownership units in St. Louis Park, and seeks HA support of the transfer. Commissioner Moore moved for approval of Resolution No. 541 Supporting the Transfer of Affordable Housing Incentive Fund for Land Trust Home Ownership Units. Commissioner Daniel seconded the motion, and the motion passed 5-0 with Commissioners Courtney, Daniel, Fillbrandt, Mavity and Moore voting in favor. c. Annual Agency Plan FY 2006 – Draft Ms. Schnitker briefly presented the draft review of the Housing Authority Agency Plan. A Public Hearing to review the final Plan has been scheduled for the January 11, 2006 Board meeting. 7. Communications from Executive Director a. Claims List November – 2005 Commissioner Moore moved for ratification of Claims List No. 11–2005, and Commissioner Fillbrandt seconded the motion. The motion passed 5-0, with Commissioners Courtney, Daniel, Fillbrandt, Mavity and Moore voting in favor. b. Communications 1. Update – Excess Public Land Task Force 2. Monthly Report for November, 2005 3. Scattered Site Houses and Hamilton House (verbal report) 4. Draft Financial Statements - Report 8. Other 9. Adjournment Commissioner Mavity moved to adjourn the meeting, and Commissioner Moore seconded the motion. The motion passed 5-0, with Commissioners Courtney, Daniel, Fillbrandt, Mavity and Moore voting in favor. The meeting adjourned at 5:33 p.m. Respectfully submitted, Anne Mavity, Secretary St. Louis Park Council Meeting Item: 121905 - 6a - Public Hearing Trader Joe's Liquor License Page 1 6a. Public Hearing to consider granting an off-sale intoxicating liquor license to Trader Joe’s East, Inc., DBA Trader Joe’s, 4500 Excelsior Boulevard, St. Louis Park, MN Recommended Action: Mayor to close the public hearing. Motion to approve an off-sale intoxicating liquor license. Background: Trader Joe’s East, Inc. has made application to the City of St. Louis Park for an off-sale intoxicating liquor license located at 4500 Excelsior Boulevard in the Excelsior & Grand Development, owned by TOLD Development Company. The store will be at the northwest corner of Excelsior Blvd. and Monterey Drive, fronting on Excelsior Boulevard with an estimated opening date expected to be March or April of 2006. Trader Joe’s East Inc. was organized in 1995 with over 200 locations in 20 states and is authorized to do business in Minnesota. Officers of Trader Joe’s are as follows: Doug Rauch, President James Poppe, Regional Vice President Sue L’Africain, Regional Vice President, Midwest area Mary Genest, Secretary/Treasurer Trader Joe’s is described as a specialty grocery store offering boutique domestic and imported wines and gourmet food items and will occupy 13,000 to 14,000 sq ft of the Excelsior & Grand mixed use retail/residential development. Intoxicating liquor and wine will be sold in the Trader Joe’s store along with food items, snacks and beverages. The parking area will be located immediately north of the store and adjacent to Park Commons Drive. The prospective store manager of Trader Joe’s East, Inc is as yet to be determined. When a store manager is identified, further background investigation will be conducted by the Police Department. The Police Department has run a full background investigation of Trader Joe’s and its partners and has found no reason to deny the license, subject to the satisfactory background investigation of the prospective store manager. Prepared By: Nancy Stroth, City Clerk Approved By: Nancy Gohman, Deputy City Manager/HR Director St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 1 6b. Time Warner Cable TV Franchise Renewal Public hearing to discuss the status of the franchise renewal process with Time Warner Cable, Inc. Recommended Action: Motion to close the public hearing, approve first reading of the attached franchise renewal ordinance and set second reading for January 3, 2006, and extend the term of the current franchise agreement to January 3, 2006. Background: Council was last updated on the status of the franchise renewal process at its December 5, 2005 meeting. At that meeting, Council continued the public hearing to December 19 and extended the term of the franchise agreement to December 19, 2005. The current franchise agreement extension with Time Warner (TW) is due to expire on December 19 unless extended by Council at its December 19 meeting. Significant progress has been made in the last several weeks to this multi-year negotiations process. At the last several Council meetings, City staff indicated that enough progress had been made to warrant continuation of the public hearing and extension of the franchise, and that staff would continue to prepare for the formal process in the event the City and TW cannot resolve renewal issues in principle. Authorization regarding the formal process had been given by Council previously. Latest Developments: Since the December 5 Council meeting City staff and the City Attorney have been in regular communications with TW in an attempt to come to agreement on a franchise in principle and prepare a franchise renewal ordinance. Staff is pleased to report that effort is now ripe for Council review as the attached first reading of the franchise renewal ordinance. This ordinance reflects negotiations between City and TW staff and their attorneys. This ordinance also reflects major business points on which agreement has been reached at a staff level. City staff respectfully requests that Council consider approving first reading of this ordinance. Major Business Points: While the detailed language of the franchise ordinance is critical, it is primarily a technical exercise to finalize it. Importantly, at a policy level, Council has expressed significant concern over continuation of what is currently known at Local Origination (LO) programming. TW has indicated its strong desire to no longer directly provide LO programming. TW has recently eliminated this similar responsibility in renewal negotiations in Fridley. Staff feels the major business points below will allow the City to continue provision of Municipally Operated Programming (using City staff) in lieu of LO programming, and address several other components of the franchise important to the community. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 2 Summary of Material Business Points Cable TV Franchise-Time Warner 1. Non-exclusive 15 year franchise. 2. TW able to discontinue Local Origination programming within one year, but will provide $1.1 million for financial support of City generated programming over 15 year period, and will transfer existing van and equipment to City. 3. Payment of the $1.1 million financial support is accelerated, with payments to City to be made as follows: • $800,000 on or before June 30, 2006 • $200,000 on or before December 31, 2011 • $100,000 on or before December 31, 2016 4. Company receives both level playing field language (additional competitive franchises to be issued on substantially equal terms) as well as option to terminate franchise if regulatory environment changes in the future. 5. City receives similar option to terminate franchise early unless 2011 and 2016 payments are made, in which case franchise will continue. 6. Free service to schools and public buildings continues and slightly enhanced, sites able to originate system programming continued. 7. Company continues to pay franchise fee, modified to apply to all gross revenues derived from provision of cable services. 8. Company receives flexibility in moving local office anywhere within 10 miles of City, but agrees to provide up to two free drop sites for equipment and payments at city sites. Optionally, Company could retain current St. Louis Park office indefinitely. 9. Home delivery is offered (currently free, but company could charge in the future). 10. Company obligation to provide local studio eliminated. City staff currently in discussions with Pavek Museum of Broadcasting to jointly build an alternative studio. TW has also indicated a willingness to work with the City to transition studio availability. 11. City to receive up to 20 hours per month of Video on Demand for and City or ISD #283 School programming. Company to recover one currently dedicated access channel. 12. Adopt by reference federal and state requirement for customer privacy and service policies, emergency warning, and technical standards. 13. Company will be subject to City right of way ordinance. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 3 Part of the negotiations includes the City agreeing not to pursue any claims raised as part of recent fee audit. Staff feels the benefits from the renewal agreement outweigh any benefits that may be derived from a costly pursuit of claims. It is also important that Council understand that in order to provide Municipally Operated Programming at a level the community is accustomed to will cost more than the $1.1 million provided over the 15 years of the franchise renewal. It will be necessary to draw upon the Cable TV Fund to the extent of approximately $1,000,000 over the 15-year period. The primary source of revenue to the Cable TV Fund is franchise fees on gross Cable TV service revenues. For comparison purposes the City of Fridley, which also received LO programming from TW, received less than half the amount included in the proposed agreement. Recommendation: Consistent with the current status of negotiations, the amount of time invested by City and TW staff, progress made and, most importantly, support for continuing local programming of interest to the Council and community, it is recommended that Council close the public hearing, approve first reading of the attached franchise renewal ordinance and set second reading for January 3, 2006, and extend the term of the current franchise agreement to January 3, 2006. Attachment: Cable TV Franchise Ordinance Prepared by: Clint Pires, Director of Technology and Support Services Approved by: Nancy Gohman, Deputy City Manager/HR Director St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 4 ORDINANCE NO. _________-05 CITY OF ST. LOUIS PARK HENNEPIN COUNTY, MINNESOTA AN ORDINANCE AMENDING CHAPTER 28 OF THE ST. LOUIS PARK CODE OF ORDINANCES RELATING TO TELECOMMUNICATIONS, ENACTING A CABLE TELEVISION FRANCHISE ORDINANCE THE CITY COUNCIL OF THE CITY OF ST. LOUIS PARK ORDAINS: Section 1. Chapter 28 of the St. Louis Park Code of Ordinances is amended by adding ARTICLE I., Sections 28-1-1 to 28-1-30 to read as follows: ARTICLE I. TIME WARNER/COMCAST CABLE FRANCHISE Sec. 28-1-1. Granting Ordinance; Purposes. The City has determined that it is desirable and advantageous to the citizens of St. Louis Park to renew the existing cable television franchise with Time Warner Cable, Inc., the current franchisee, which the City anticipates will be subsequently transferring the renewed franchise to Cable Holdco II Inc., a wholly-owned subsidiary, through other subsidiaries, of Comcast Corporation (“Comcast”). In accordance with state and federal law requirements, the City has reviewed and found sufficient both entities technical ability, financial condition, and legal qualifications to operate in St. Louis Park and hereby determines that it is in the public interest to initially grant to Time Warner Cable a full and complete, nonexclusive franchise for a period of fifteen years for the operation and maintenance of a cable television in St. Louis Park; provided, however, the franchise is subject to the terms and conditions set forth in this Franchise Ordinance. By separate resolution the City also has approved the transfer of this Franchise to Comcast. Sec. 28-1-2. Short Title. This Franchise Ordinance shall be known and may be cited as the "Cable Communications Franchise Ordinance," hereinafter "Franchise Ordinance", and it shall become a part of the ordinances and Legislative Code of the City of St. Louis Park. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 5 Sec. 28-1-3. Definitions. In this Franchise Ordinance the following terms, phrases, words and their derivations have the meanings given. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are always mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning. Basic Service means the lowest priced tier of Cable Service that includes the retransmission local broadcast television signals; any public, educational, and governmental access programming required by this franchise to be provided to subscribers; any regional channel required by state law; and additional video programming signals or services added by cable operator. CATV System is synonymous with "cable system" or “system” and means the Company’s facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple Subscribers within the Franchise Area. Cable Service means (1) the one-way transmission to Subscribers of (a) video programming, or (b) other programming service, and (2) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. City means the City of St. Louis Park, Minnesota as it exists now and as its borders may from time to time be changed; including, without limitation, its officers, boards, commissions, elected officials, agents, attorneys, representatives, servants and employees. Company means Time Warner Cable, Inc., the grantee of rights and obligations under this Franchise Ordinance, including, but not limited to, all subsidiaries, parents, or affiliate companies, associations or organizations having any rights, powers, privileges, duties, liabilities or obligations, under this Franchise Ordinance; and all owners, affiliates, successors, transferees, assignees, subcontractors, agents, employees and representatives. FCC means the Federal Communications Commission and any legally appointed, designated or elected agent or successor. Franchise Ordinance means the incorporated terms of this Cable Communications Franchise Ordinance, governing the operation of a CATV System within and throughout the City of St. Louis Park. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 6 Gross revenues means all revenues earned directly or indirectly by the Company, arising from or in connection with the provision of cable service in the City and consistent with local, state and federal law, including subscriber revenues (including pay TV), amounts collected as franchise fees, advertising income, home shopping programs and rentals of subscriber equipment, recorded as earned, in accordance with generally accepted accounting principles, in the area under jurisdiction of the City. The Company is not required to include revenues recorded as earned but which are deemed uncollectable, but it must include recoveries previously deemed uncollectable. This definition of gross revenues also does not include sales, excise or other taxes (other than franchise fees) collected by the Company on behalf of federal, state, county, city or other governmental unit, including FCC user fees. Funds collected by the Company to recover amounts paid to support public, educational and governmental access programming are also excluded from the definition of gross revenues. . Person means any person, firm, partnership, association, corporation, company, organization or entity. Public Property means any real property owned by the City other than a highway, sidewalk, easement or dedication. PEG means the public, educational and governmental access channels, equipment, programs or facilities, as the context dictates. . ISD 283 means Independent School District 283, located within the City of St. Louis Park. State of the Art means equipment or facilities that: (1) Are readily available with reasonable delivery schedules from two or more sources of supply; (2) Have the capability to perform the intended functions demonstrated within communities with similar characteristic (including, but not necessarily limited to, population, density, Subscriber penetration, etc.) under actual operating conditions for purposes other than tests or experimentation; and (3) Are technically and economically feasible to implement. The term “State of the Art” shall not include equipment or facilities associated with or dedicated to the general public, educational or governmental access or telecommunication services. Franchise Area means the present boundaries of the city of St. Louis Park, Minnesota, and shall include any additions thereto by annexation or other legal means. Multichannel Video Programming Distributor means a person such as, but not limited to, a cable operator, a multichannel multipoint distribution service, a direct broadcast satellite service, open video system operators, telephone companies, utility companies or a television receive-only satellite program distributor, who makes available for purchase, by subscribers or customers, multiple channels Cable Service or substantially equivalent video programming. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 7 Public Way, Right of Way or ROW means the space on, over, above and below any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, public way, drive, circle, or other public right-of-way, including, but not limited to, public utility easements, dedicated utility strips, or rights-of-way dedicated for compatible uses now or hereafter held by the City in the Franchise Area which shall entitle the Company to the use thereof for the purpose of installing, operating, repairing, and maintaining the CATV System. Subscriber means any person who lawfully receives cable service from the Company and does not further distribute it. Company’s place of business means Company offices with financial records and maps, which shall be located in the Minneapolis/St. Paul metropolitan area. Sec. 28-1-4. Application for a franchise. Applications for a franchise, other than a franchise renewal pursuant to 47 U.S.C. §546, shall be filed with the City clerk in accordance with instructions promulgated by the City and shall contain the following information and provisions: (1) The name and business address of the applicant(s), date of application and signature of applicant(s) or appropriate corporate officer(s). (2) A description of the legal, technical and financial qualifications of the applicant(s). (3) Payment of the required filing fee. (4) Any applicant (including, specifically, the Company) shall reimburse City at the time the applicant accepts a franchise for all reasonable costs of the City in connection with the granting or renewal of a franchise, including costs for legal services and publication. (5) A general description of the applicant's proposed operation. (6) A statement of the applicant's proposed schedule of charges. (7) A statement detailing the corporate organization of the applicant, if any, including the names and addresses of its officers and directors and the division of shares between shareholders. (8) A statement describing all intra-company relationships of the applicant including parent, subsidiary or affiliated companies. Sec. 28-1-5. Grant of franchise. (1) Grant. The Grantee shall have the nonexclusive right and privilege, subject to the provisions of this Franchise Ordinance to construct, erect, and maintain, in, upon, along, across, above, over and under the Rights of Way in the Franchise Area a CATV System and shall have the right and privilege to provide Cable Service. The System constructed and maintained by Grantee or its agents shall not interfere with other uses of the Rights of Way. Grantee shall make use of existing poles and other above and below facilities available to Grantee to the extent it is technically and economically feasible to do so. Nothing contained in this Franchise, shall be construed to give Grantee the authority to enter upon or work on private property in areas not encumbered with public easements without the permission of the property owner. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 8 (2) Other Ordinances. The Company agrees to comply with the terms of any generally applicable local ordinance. In the event of a conflict between any generally applicable ordinance and this Franchise Ordinance, the terms of this Franchise Ordinance shall control. (3) State and Federal Law. Notwithstanding anything in this Franchise Ordinance to the contrary, the City and Company shall conform to state laws and rules regarding cable communications and shall conform to federal laws and regulations regarding cable as they become effective. Sec. 28-1-6. Franchise required. After the effective date of this Franchise Ordinance, no person shall establish, operate or carry on the business of distributing to any person in the City any television signals, or radio signals or other intelligences, either analog or digital, by means of the Public Ways unless a franchise has first been obtained pursuant to the provisions of this Franchise Ordinance, and unless such franchise is in full force and effect. No person shall construct, install or maintain within any public street in the City, or within any other public property of the City, or within any privately owned area within the City which has not yet become a public street on any tentative subdivision map approved by the City; any equipment or facilities for distributing any television signals or radio signals or other intelligences either analog or digital unless a franchise authorizing the use of the streets or properties or areas has first been obtained pursuant to the provisions of this Franchise Ordinance, and unless such franchise is in full force and effect. Sec. 28-1-7. Privileges and obligations under the franchise. (1) Privileges Subordinate. Any privilege claimed under a franchise in any street or other public property shall be subordinate to any lawful occupancy of the street or other public property by the City for City purposes or to any present or future improvements to the streets by the City, including without limitation sidewalks and roadway widening. (2) Consent to Transfer. The sale or transfer of the CATV System franchised under this Franchise Ordinance requires the prior written approval of the City. The parties to the sale or transfer shall make a written request to the City for its approval of the sale or transfer, and the request shall be processed by the City as required by Federal and state law. (3) Additional Franchises. A. The Company acknowledges and agrees that the City reserves the right to grant one (1) or more additional franchises or other similar lawful authorization to provide Cable Services or video programming services within the City; provided, however, that no such franchise or similar authorization shall contain material terms or conditions which are substantially more favorable or less burdensome to the competitive entity than the material terms and conditions herein. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 9 B. Notwithstanding any provision to the contrary, if a non-wireless Multichannel Video Programming Distributor legally authorized by state or federal law, makes available for purchase by Subscribers or customers, Cable Services or other video programming services within the Franchise Area without a franchise or other similar lawful authorization granted by the City, then Company or City shall have the right, upon one hundred eighty (180) days advance written notice to the other party, to terminate this Franchise; provided, however, that the City shall have no right to terminate the franchise pursuant to this section prior to 2016 in the event that Company had made or guarantees payment of the $200,000.00 capital support payment due on December 31, 2011 pursuant to Section 28-1-14(6) of the Franchise Ordinance; provided, further, that the City shall have no right to terminate the franchise pursuant to this section at any time during the term in the event that Company had made or guarantees payment of the $200,000.00 capital support payment due on December 31, 2011 and the $100,000.00 payment due on December 31, 2016 pursuant to Section 28-1-14(6) of the Franchise Ordinance. Nothing herein shall in any way limit or reduce Company’s right to provide Cable Service in the City under applicable state or federal law nor the City’s right to regulate Company’s provision of Cable Services in the City. (4) Notices. All notices from Company to the City pursuant to this Franchise Ordinance shall be filed with the City Clerk and with the City Manager. Company shall maintain with the City, throughout the term of this Franchise Ordinance, an address for service of notices by mail. Company shall also maintain with the City, a local office and telephone number for the conduct of matters related to this Franchise Ordinance during normal business hours. Sec. 28-1-8. Duration of franchise. The term of the cable franchise granted by the City to the Company pursuant to this Franchise Ordinance shall be for a period of fifteen (15) years from and after the effective date. Nothing in this Section limits the City's or Company’s rights to revoke or terminate the franchise granted by subsequent sections of this Franchise Ordinance. Sec. 28-1-9. Franchise payment. (1) Payment to the City. The Company shall pay to the City an annual franchise fee in an amount equal to five percent (5%) of the annual gross revenues received by the Company for Cable Services within the City. Payment will be made to the City with an itemization of the gross revenues. (2) Method of Computation; Interest. Local sales taxes or other local taxes levied directly on a per-subscriber basis and collected by the Company shall be deducted from the local gross revenues before computation of sums due the City is made. Payments due the City under the terms of this Franchise Ordinance shall be computed and paid within 45 days of the end of each calendar quarter. The City shall be furnished a statement with each payment, certified as correct by the Company, reflecting the total amounts of gross revenues, and the St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 10 above charges, deductions and computations, for the three (3) months' payment period covered by the payment. In the event that any franchise fee payment is not made on or before the applicable date(s) specified, interest on the amount due (as determined from the gross operating receipts computed by an independent certified public accountant), shall accrue from the required payment date at the annual rate of twelve percent (12%). (3) Rights of Recomputation. No acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable as a franchise fee under this Franchise Ordinance or for the performance of any other obligation. The period of limitation for recovery by the City of any franchise fee payable hereunder shall be three (3) years from the date on which payment by the Company is due to the City or for any period covered by an audit conducted pursuant to and in accordance with Section 28-1-19(4). (4) Late Payments. The City's acceptance of a late payment by the Company shall not be deemed a waiver of their right to enforce timely payments in the future. (5) In addition to Cable Service, the Grantee (either by itself or through one or more affiliates) may provide information and/or telecommunications services. For purposes of calculating the Franchise Fee when the Grantee packages or “bundles” Cable Services with other services not subject to franchise fees, the Grantee shall allocate revenues and compute the Franchise Fee due pursuant to this Franchise in accordance with EITF 00-21 or such subsequently issued generally accepted accounting principles (“GAAP”) which amend or supersede EITF 00-21, or as otherwise required by applicable law. In the event EITF is amended or superseded, the Grantee will notify the City of such change in its required Franchise Fee report. Sec. 28-1-10. Security for performance. (1) Performance Bond. (a) Terms of Bond. As of the effective date of this Franchise Ordinance, the Company shall file with the City Clerk at its own expense, and at all times thereafter maintain in full force and effect for the term of this Franchise Ordinance or any renewal, running to the City, a faithful performance bond in the amount of $50,000.00. The bond shall be issued by a responsible company licensed to do business in the State of Minnesota, renewable annually and conditioned upon the faithful performance by the Company of all the terms and conditions of this Franchise Ordinance. This performance bond shall contain the further condition that in the event Company shall fail to comply with any law, ordinance or regulation governing the Franchise Ordinance, any such failure be deemed material, then the principal and surety of the bond shall be jointly and severally liable for any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the Company up to the full amount of the bond. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 11 This condition shall be a continuing obligation for the duration of the Franchise Ordinance and any renewal or extension and until the Company has liquidated all of its obligations with the City that may arise from the Company's acceptance of this Franchise Ordinance or from Company's exercise of any privilege or right granted by this Franchise Ordinance. Notwithstanding the above provisions of this subsection, the Council may in its sole discretion waive the bond or reduce the required amount after five (5) years of operation of a CATV System under the Franchise Ordinance by the Company if the operation, in the sole opinion of the City, has been satisfactory. The bond(s) should be subject to the approval of the City and shall contain the following endorsement: It is hereby understood and agreed that this bond may not be cancelled until sixty (60) days after receipt by the City (by filing with the City Clerk), by registered mail return receipt requested, of a written notice of intent to cancel, intent not to renew, or material change in the bond. (b) Delays in Performance. The bond(s) required in this subsection shall provide that with fifteen (15) days' prior written notice to the Company, the City may recover against the surety the sums provided for failure to complete construction in accordance with any provisions of this Franchise Ordinance. (2) Letter of Credit. (a) Within ten (10) days after the adoption of this Franchise Ordinance, Company shall deposit with the City an effective irrevocable Letter of Credit from a local financial institution (and maintain at all times through the term of this Franchise Ordinance), in the amount of Twenty Thousand Dollars ($20,000.00). The form, manner and content of the Letter of Credit shall be subject to the approval by the City Manager, which approval shall not be unreasonably withheld. The Letter of Credit shall be used to insure the faithful performance by Company of all the provisions of this Franchise Ordinance and compliance with all orders, permits and directions of City lawfully imposed on Company and the payment by Company of any claims, liens and taxes due City which arise by reason of the construction, rebuild, upgrade, operation or maintenance of the CATV System. City reserves the right, in its sole discretion, to reduce the required amount of the Letter of Credit. (b) If Company fails to pay to City any taxes due and unpaid or fails to repay to City, any penalties, damages, costs or expenses for which the Company is required to indemnify the City under this Franchise Ordinance or is deemed, pursuant to the procedures required under Section 28-1-21 hereof, to comply with any provision of the Franchise Ordinance which City reasonably determines can be remedied by an expenditure of the security, City may immediately request and receive payment of the amount due and owing (with interest and any penalties) from the financial institution holding the Letter of Credit. Upon request for such payment, City shall notify the Company of the amount and date of the payment. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 12 (c) Whenever the City shall receive payment of any amount against the Letter of Credit, the Company shall pay to or deposit with the financial institution holding the Letter of Credit an amount sufficient to replenish the Letter of Credit to its full value of Twenty Thousand Dollars ($20,000.00) within ten (10) days after the Company has been notified of the City's request for payment. The City Manager shall be furnished with written proof of replenishment not later than twenty-four (24) hours after it is accomplished. (d) The Letter of Credit shall contain the following endorsement: It is hereby understood and agreed that this Letter of Credit may not be cancelled by the financial institution nor the intention not to renew be stated until thirty (30) days after receipt by the City, by registered mail, of a written notice of such intention to cancel or not to renew. (3) Rights Reserved to City. The rights reserved by the City with respect to the bond(s) and Letter of Credit are in addition to all other rights and remedies the City may have under this Franchise Ordinance or any other law. Sec. 28-1-11. Liability insurance and indemnification. (1) Liability Insurance. (a) At all times during the term of the Franchise Ordinance, Company shall maintain and (by its acceptance of a franchise under this Franchise Ordinance) specifically agrees that it will maintain in full force and effect, and at its own cost and expense comprehensive general liability insurance insuring the City and the Company from claims which may arise from Company’s operations under this Franchise. The insurance must provide for at least $4 million in coverage for personal injury or death from any occurrence. The policy or policies shall afford the same limits of liability as set out above for liability assumed under contract. The policy or policies shall name the City as an additional insured and provide that no other insurance maintained by the City will be called upon to contribute to a loss covered under that policy. All insurance policies maintained pursuant to this Franchise Ordinance shall contain the following endorsement: It is understood and agreed that this insurance policy may not be cancelled nor the intention not to renew be stated until sixty (60) days after receipt by the City, by registered mail, of written notice of such intention to cancel or not to renew. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 13 (2) Indemnification. (a) The Company shall indemnify and hold harmless the City from any suit, claim or demand whatsoever which may be asserted or recovered against it based upon or arising out of Company's construction, maintenance, or operation of the system or any part thereof; provided, that such suit, claim, or demand is not based upon the City's own intentional or negligent conduct. The City agrees to immediately notify Company, in writing and within forty-eight hours (unless notification within forty-eight hours would be unreasonable due to extraordinary circumstances) of any claim or suit against the City for which Company may be required to indemnify the City. In the event Company is required to defend the City in connection with this section, the City agrees to tender control of its defense to Company and Company shall have the right to select defense counsel. The City agrees to cooperate in its own defense. This section does not apply to claims brought against the City pertaining to the granting of this Franchise Ordinance. (b) Reserved. (c) City reserves the right, at its own expense, to participate in the defense of any claim identified above either through intervention or otherwise. (d) The City is in no manner or means waiving any governmental immunity or limitation of liability it may enjoy or any immunity or limitation of liability for its agents, officials, servants, attorneys, representatives and/or employees. (e) The Company shall make no settlement in any matter identified above without the City's written consent, which shall not be unreasonably withheld. Failure to inform the City of settlement shall constitute a breach of this Franchise Ordinance and the City may seek any redress available to it against the Company whether set forth in this Franchise Ordinance or under any other municipal, state or federal laws. (f) Reserved. (g) The City's exercise of or failure to exercise any rights pursuant to any Section of this Franchise Ordinance shall not affect in any way the right of City subsequently to exercise any such rights or any other right of City under this Franchise Ordinance or any other ordinance, rule, regulation or law. Sec. 28-1-12. System facilities; capabilities. (1) Business Office. The Company shall maintain a full service office at a location convenient to the public, it being understood and agreed that any location within 10 miles of the City shall be deemed convenient to the public. At such time as Company ceases to maintain such an office in the City, the Company shall provide for the convenience of its customers drop boxes for payments and equipment at up to two locations to be determined by mutual agreement of the parties; provided, however, that the City agrees to provide locations on City-owned property at which such drop boxes may be located. Equipment exchanges and other customer service needs may also be addressed through Company’s direct service offerings. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 14 (2) Studio Facilities; Personnel. For the lesser of one year or such time as the City has established replacement studio facilities, the Company shall continue to make available its existing studio facilities within the City. During this period, the studio shall continue to be equipped with sufficient equipment and personnel to ensure its present level of functionality. Company’s studio shall be accessible to the public and operate at reasonable hours to accommodate the public. (3) Emergency Capability and Use. The City and the Company shall conform to federal laws and regulations as they become effective, including 47 CFR Parts 11, 21, 63 and 76 regarding emergency alert system requirements. Sec. 28-1-13. Construction and technical standards. (1) Compliance with Construction and Technical Standards. Company shall construct, install, operate and maintain its system in a manner consistent with all laws, ordinances, construction standards, governmental requirements and FCC technical standards. (2) Performance Tests and Certification. (a) The Company shall be responsible for insuring that the CATV System is designed, installed and operated in a manner which fully complies with the technical standards of this Franchise Ordinance. (b) The Company shall conduct complete performance tests of the CATV System as required by FCC regulations. The Company shall provide the City 30 days advance notice of any test and, upon request, with a written report of the results of such FCC technical tests. (c) Company shall bear all of the costs of technical standards testing required under FCC rules. Sec. 28-1-14. PEG programming and Leased Access channels. (1) Specially Designated Public, Educational, Governmental (PEG) and Leased Access Channels. Company shall make available for access programming at least five (5) downstream video channels on the Subscriber Network for public, educational and governmental access. Two of the channels shall be specially designated for noncommercial public access; one channel shall be dedicated to local non-commercial municipally-produced community programming; one channel shall be specially designated for noncommercial access by local educational authorities; and one channel shall be specially designated for noncommercial access for local government use. In addition, Company shall make available leased access channels pursuant to the Cable Communications Policy Act of 1984. The VHF spectrum shall be used for a least one (1) of the specially designated noncommercial public access channels required in this Section. Company shall provide reception on these channels to each of the subscribers who receive Basic Service. Company shall ensure that its delivery and transmission of PEG channels and programming shall be without material alteration or degradation of picture or sound content and will be of a quality consistent with FCC technical standards. In the event the Company changes the access channel designations (numbers), the Company shall, to the extent possible, provide sixty (60) days prior written notice of such change(s) to the City. In addition, the Grantee shall provide reasonable notice of such change(s) to Subscribers via, for example, bill stuffers or a channel crawl. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 15 (2) Charges for Use of Public Access Channels. No charges shall be made for channel time or playback of prerecorded programming on at least one (1) of the specially designated noncommercial public access channels required by this Section, provided, however, that personnel, equipment, and production costs may be assessed for live studio presentations exceeding five (5) minutes in length. Charges for such production costs and any fees or use of other public access channels shall be consistent with the goal of affording the public a low cost means of television access. (3) Access Channel Rules. The governmental access channel, municipally operated channel, and public access channels, shall be administered solely by the City. The local educational channels shall be administered solely by ISD 283. The leased access channel(s) shall be administered solely by the Company. (4) Reduction of Channel Capacity. If available channel capacity is reduced in the future or where demand for use does not warrant activation of all of the specially designated access channels required in this Section; public, educational, governmental and leased access channel programming may be combined on one or more cable channels. To the extent consistent with the City's rules and where time is available, access channels may also be used for other broadcast and nonbroadcast services, provided that such services are subject to immediate displacement and may be replaced by access channels if City determines, in its sole discretion, that there is demand to use the channel for its specially designated access purpose. Company shall, in any case, provide at least one (1) full channel on the VHF spectrum for shared access programming. Available channel capacity shall be reduced or a determination that demand for use does not warrant activation of all the specially designated access channels required by this Section shall be made only pursuant to the following procedure: (a) Company will notify City of the proposed change; (b) City shall make a determination following a process of review which takes into account such rules as may be established by City for this purpose and which affords notice and opportunity to be heard to all interested parties. (5) Video on Demand. The Company shall provide Video on Demand service (VOD) for government and community programming. The VOD service to be provided herein shall be limited to up to twenty (20) hours per month and, in addition to City-provided content, may include ISD 283 programming. The City will be solely responsible for determining programming priority and will be responsible for providing Company with good quality masters in a format determined through mutual agreement. A presentation form (stating program information, the City’s acceptance of responsibility for content, “kill” dates, if applicable, and other matters) and content delivery method will be determined through mutual agreement of the parties. (6) Support Grant. Company shall pay to the City the amount of $1.1 million dollars, which shall be used solely for PEG access purposes. This amount shall be in addition to any other required fee or payment, and shall be paid as follows: $800,000 on or before June 30, 2006 $200,000 on or before December 31, 2011 $100,000 on or before December 31, 2016 St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 16 (7) Transfer of Equipment. Company shall continue to meet the Local Origination requirement in its previous franchise with the City until December 30, 2006. On or before that date, Company shall transfer to City its current production van as presently equipped, subject to normal wear and tear. Sec. 28-1-15. Interconnection/Service to government and school buildings. (1) Programming Origination Sites. Company agrees to operate and maintain existing direct connections and necessary equipment for the purposes of cablecasting programming on the subscriber network, as follows: a) from ISD 283 High School headend to Company headend. b) from ISD 283 football field grandstand to High School headend. c) from City Hall control room racks to Company headend. d) from Wolfe Park Veteran’s Memorial Amphitheatre to City Hall control room racks. e) from designated equipment area in nearby Rec Center to City Hall control room racks. Company shall not be liable or responsible for any costs or expenses resulting from any City or High School loss of or damage to connections or equipment or any changes to the City or High School’s wiring implemented by a party other than Company. (2) Service Provided. Company agrees to make available one free drop of the Subscriber Network, providing, at no charge, Basic Service to institutions listed on Exhibit A. Company shall provide, at no charge and upon City’s request, two converters or other equipment required for converting the signal for analog display, if necessary. Sec. 28-1-16. System Construction requirements. (1) Permit Application. Company shall be responsible for application costs and approval of all necessary permits required under the City’s generally applicable ordinances pertaining to work in Public Ways. (2) Line Extension Policy. (a) Upon the effective date of this Franchise Ordinance, the Company shall offer Cable Service within the Franchise Area. The Company shall extend the Cable System to any residences within the City requesting Cable Service provided there are at least thirty (30) homes per mile, or the equivalent thereof, of required new Cable System construction and the requesting residence is within 125 feet of the Cable System as extended. (b) In those instances in which the cable that connects the ground block to the nearest feeder cable of the Cable System is in excess of 125 feet, the Company shall bear that portion of the cost of constructing the first 125 feet and the requesting Subscriber shall bear the remainder. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 17 (c) The City recognizes that in some instances the Company may need the permission of private property owners to extend Service. If the Company is unable to obtain such permission on reasonable terms, the Company shall be under no obligation to extend Service. (d) The Company agrees to extend Cable Service to any business in the Franchise Area provided costs are within a cost recovery model. The current threshold cost for extension borne by the Company is available by contacting the Company’s Business Services Department. (3) City's Reservation of Rights. Neither the review of plans by the City nor the granting by City of any licenses, permits, certificates, authorizations, approvals, etc., shall be construed as a guarantee or warranty by the City of Company's CATV System. The Company shall not assert the fact that the City has performed any prior review of its plans or exercised any ministerial function in granting licenses, permits, certificates, authorizations, approvals, etc., as a defense against its obligations to indemnify and hold the City harmless pursuant to Section 9-711(3). Sec. 28-1-17. Fees, rates and charges. (1) To the extent authorized by law, the City reserves its rights to regulate rates and charges imposed by the Company (City received FCC Certification of Franchising Authority to Regulate Basic Cable Service Rates on 10-26-93). (2) Notice of Rate Change. Company shall notify the City and subscribers of changes in rates as and to the extent required by 47 C.F.R. §76.1603. Sec. 28-1-18. Conditions of public property occupancy. (1) Approval of Proposed Construction. The Company shall first obtain the approval of the Director of Public Works before any construction is commenced on streets, alleys, sidewalks, driveways, public property or places of the City. Application for approval of construction shall be in a form specified by the Director of Public Works. The Company shall give the City reasonable written notice of proposed construction to allow coordination of all work between the City and the Company. (2) Excavation Permits. Company shall not open or disturb the surface of a street, alley, sidewalk, driveway or public property for any purpose without first having obtained a permit to do so in the manner provided by ordinance. Company may apply for a single permit for all excavation. The amount charged by City to Company for such permit shall be fair and reasonable. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 18 (3) Changes Required by Public Improvements. Whenever the City undertakes any public improvement which affects CATV system facilities, it shall direct the Company to remove or relocate such equipment from the area of public improvement, at Company's expense. Specifically, Company shall, at its expense, protect, support, temporarily disconnect, relocate in or remove from a street, alley, sidewalk, driveway, or public property or place any property of the Company when required by the Director of Public Works by reason of traffic conditions, public safety, street vacation, street construction, change or establishment of street grade, installation or improvement of sewers, drains, water pipes, power lines, signal lines, tracks or any other type of structure, improvement or alteration of public property. If this public improvement also requires public utilities to remove or relocate their equipment and the City reimburses the utilities for their expenses incurred in the removal or relocation, the City shall reimburse the Company on the same terms and conditions it reimburses the utilities. If the utilities are reimbursed by some source other than the City, then City shall not be required to reimburse the Company for its expenses but will provide the Company with reasonable assistance in obtaining such reimbursement. (4) Interference With or Hazard to Persons and Improvements. The Company's CATV System, including all wires, conduits, cables and other property and facilities, shall be located, constructed, installed and maintained so as not to endanger or unnecessarily interfere with the lives of persons or with the usual and customary trade, traffic and travel upon the streets, alleys, sidewalks, driveways or public property and places of the City. The Company shall keep and maintain all of its property in good condition, order and repair and make it available for inspection at any reasonable time and upon reasonable notice. The City shall have the right to inspect and examine property located in the Public Way that is owned or used, in part or in whole, by the Company. Company shall not place poles or other equipment where they will interfere with the rights or reasonable convenience of adjoining property owners, or with any gas, electric, or telephone fixtures or with any water hydrants or mains. All poles or other fixtures placed in a street shall be placed in the right-of-way between the roadway and private property as specified by the Director of Public Works. (5) Method of Installation. All wires, cables, amplifiers and other property shall be constructed and installed in an orderly and workmanlike manner. All cables and wires shall be installed parallel with existing telephone and electric wires whenever possible. Multiple cable configurations shall be arranged in parallel and bundled, in compliance with engineering and safety considerations and standards. Any portion of a CATV System that is installed in a park or publicly owned open space area shall be installed underground in a manner approved by the City. All installations shall be underground in those areas of the City where public utilities providing both telephone or electric utility facilities are underground at the time of installation. In areas where either telephone and electric utility facilities are above ground at the time of installation, the Company may install its service above ground provided that at such time as all those facilities are required to be placed underground, the Company shall likewise place its facilities underground without additional cost to the residents of the City except as provided under City ordinance. (6) Protection of Facilities. Nothing contained in this Franchise Ordinance shall relieve any person, company or corporation from liability arising out of the failure to exercise reasonable care to avoid injuring Company's facilities while performing any work connected with grading, regrading, or changing the line of any street or public place or with the construction or reconstruction of any utility facility, sewer or water system. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 19 (7) Notice of City Improvements. The City shall give the Company reasonable notice of plans for street improvements where paving or resurfacing of a permanent nature is involved. The notice shall contain the nature and character of the improvements, the streets upon which the improvements are to be made, the extent of the improvements and the date of commencement of work. Notice shall be given a sufficient length of time in advance to permit Company to make any additions, alterations, or repairs to its facilities deemed necessary, considering seasonal working conditions in advance of the actual commencement of work. (8) Compliance with Codes. All construction, installation, maintenance and operation of CATV Systems or facilities shall comply with the provisions of the National Electrical Safety Code as prepared by the National Bureau of Standards, the National Electrical Code of the National Board of Fire Underwriters, the Bell Telephone System Code of Pole Line construction, standards issued by the FCC or other federal or state regulatory agencies, and local zoning regulations. Every CATV System installed, constructed, maintained or operated in the City shall be designed, constructed, installed, maintained and operated as not to endanger or interfere with the safety of persons or property in the City. (9) Moving Wires. Upon request made at least five (5) days in advance by a holder of a building moving permit for the purpose of moving buildings, the Company shall temporarily raise, lower, or remove its wires. The holder of the building moving permit shall pay the reasonable cost of the requested service and may be required to pay that amount in advance. (10) Trimming Trees. All trimming shall be done under the supervision and direction of the City and at the expense of the Company. The Company shall not remove any tree within any public place without the prior consent of the City. The Company shall be allowed to trim trees upon and overhanging streets, alleys, sidewalks, driveways and public grounds and places of the City to prevent the branches of the trees from coming in contact with the wires and cables of Company. Regardless of who performs the work, the Company shall be responsible and shall defend and hold City harmless for any and all damages to any tree or surrounding land as a result of the trimming or removal. (11) Restoration to Prior Condition. In case of any disturbance of pavement, sidewalk, driveway, foundation or other surfacing, the Company shall, at its own cost and expense and in a manner approved by the City, replace and restore all paving, sidewalk, driveway, foundation or surface of any street or alley disturbed, in as good condition as before the work was commenced and in accordance with standards for such work set by the City. If, upon reasonable written notice, the Company fails promptly to restore any street or public place in accordance with this provision, the City shall have the right to put such street or public place back into good condition at the expense of the Company and the Company shall, upon demand, pay to the City and the cost of such work done or performed by the City. (12) Interference With Reception. Company shall not allow its cable or other operations to interfere with the broadcast reception of persons not served by Company. (13) Record of Equipment and Facilities to be Maintained. The Company shall at all times make and keep at its business office complete and accurate plans and records showing the exact location of all CATV System equipment and facilities installed or in use in the City and make available such maps and records for the City's inspection promptly upon the City’s reasonable request. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 20 Sec. 28-1-19. Operation of the franchise/consumer service. (1) Consumer Service Policies. The Company shall comply with applicable customer service standards set forth at 47 C.F.R. 76.309, or other applicable state or federal requirements. Nothing in the foregoing shall be construed as a waiver by the City of any rights it may have to adopt additional or modified consumer protection requirements to the extent authorized by federal or state law. (2) Consumer Complaints. The company shall designate a local contact person for City representatives to contact in case complaints about the company, its practices or services are received by City staff. The company is expected to normally resolve customer’s complaints without City involvement, but when customer complaints are received by City staff and forwarded to the company contact, the Company shall resolve the customer complaint and notify City staff of the outcome. The Company shall provide a copy of pertinent company customer service policies to the City upon request, for verification that company policies have been followed in complaints received by the City. (3) Repairs and Maintenance. (a) Maintenance of the System. The Company shall install and maintain the CATV System so as to avoid unreasonable or repetitive interruptions in service to subscribers. (b) Interruption of Service. Whenever it is necessary to interrupt service to make tests, repairs, adjustments or installations, the Company shall do so during a period of minimum subscriber use. Unless an interruption is unforeseen and immediately necessary, the Company shall give reasonable notice to the subscribers affected. All costs incurred in effecting such tests, repairs, adjustments or installations shall be borne by the Company unless otherwise provided by law, ordinance or regulation. (4) Reports, Books and Records of Company. (a) City's Right to Audit. Not more than once every three (3) years, the City shall have reasonable access at mutually agreed-upon times to audit Company's accounting and financial records at Company’s place of business upon reasonable notice as reasonably necessary to verify Company’s compliance with its monetary obligations to the City under this Franchise Ordinance. Company shall have the right to observe any such audit proceedings. Such audit may not review records extending back further than three (3) years from the commencement of such audit. (b) Report on Operations. Upon request, the Company shall prepare and furnish to the City at the time and in the form prescribed by the City Manager, such reports with respect to its Cable System operations, affairs, transactions or property in the City, as may be determined reasonably necessary to the City’s regulation of the Cable System pursuant to this Franchise Ordinance. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 21 (5) Filing Communications with Regulatory Agencies. As required by applicable law and otherwise upon request, Company shall provide to City a copy of any petition, application or similar communication that is submitted by the Company to the FCC, or other federal or state regulatory commission or agency having jurisdiction in respect to any matter affecting CATV System operations within the City. (6) Reserved. (7) Rules of the Company. The Company may promulgate such rules, regulations, terms and conditions governing the conduct of its business as may be reasonably necessary to enable it to exercise its rights and perform its obligations under the Franchise Ordinance and to assure an uninterrupted service to any and all of its customers; except that such rules, regulations, terms and conditions shall not be in conflict with the provisions of this Franchise Ordinance, other ordinances of the City, or the laws of the State of Minnesota or the United States. Upon request, a current copy of any such rules, regulations, terms and conditions shall be filed with the City. (8) Service Contract. If a written service contract is used by a Company in its dealings with subscribers, the Company shall provide a copy of such contract to the City upon request. (9) Reserved. (10) Reserved. (11) Preferential or Discriminatory Practices Prohibited. (a) The Company shall establish and maintain an Equal Employment and Affirmative Action Program providing that no individual shall be discriminated against with respect to compensation, terms, conditions or other privileges or employment because of race, color, creed, religion, sex, national or ethnic origin, physical condition, age, affectional preference or marital status. The Company's Equal Employment and Affirmative Action Program shall be maintained on file with the City Manager and shall be in compliance with current and future policies established in the City's Affirmative Action Program, as well as with Section 635 of the Cable Act of 1984. The Company shall strictly adhere to the Equal Employment and Affirmative Action Program it files. (b) The Company shall comply with or exceed all federal, state and local laws and regulations relating to equal employment opportunity and non-discrimination. (12) Subscriber Privacy. At all times, Company shall abide by the subscriber privacy provisions in applicable federal and state laws including 47 U.S.C. §551. (13) Surveys. Company shall provide the City with the results any non-confidential, non-privileged survey of Subscribers in the City regarding Cable Service or the operation of the CATV System. (14) Periodic Review. The City may request a State-of-the-Art review at the fifth and tenth anniversaries of the granting of this Franchise. In conducting a State-of-the-Art review, the City shall undertake the following process: (a) The City and the Company shall undertake a review of the then existing Cable System. This review shall, at a minimum, take into account the following: (1) Characteristics of the existing System; (2) The State-of-the-Art; (3) Additional benefits provided to customers by the State-of-the-Art; (4) The market place demand for the State-of-the-Art; (5) The use of a need for additional PEG access channels; and (6) The financial feasibility of the State-of-the-Art taking into account associated rate increases, and the premature retirement of assets. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 22 (b) The City shall hold a public hearing to enable the general public and Company to comment and to present evidence. (c) As a result of any review based on this section, the City and Company may enter into good faith negotiations to amend this Franchise as necessary to provide system improvements on a schedule that takes into account the impact on rates, recovery of costs, benefit to subscribers, and other factors agreed upon. (d) Notwithstanding anything to the contrary, the City may not undertake a State of the Art review at any time the Company is deemed subject to effective competition pursuant to then applicable state or federal law. Sec. 28-1-20. Rights reserved; resolution of disputes. (1) No Impairment of Eminent Domain. Nothing herein shall be construed to contract away, modify or abridge, either for a term or in perpetuity, the City's rights to eminent domain, including any right of the City to acquire the property of the Company through the exercise of the right of eminent domain. (2) Administration of Franchise Ordinance. Subject to the control and direction of the Council, the City Manager of City, or City Manager's designee, shall be the designated administrator responsible for the continuing administration of the Franchise Ordinance. (3) Resolution of Disputes and Appeal Procedures. Prior to taking any enforcement action authorized by Section 28-1-21, the City shall contact the Company’s designated representative and attempt to resolve the dispute. (4) City's Transfer of Functions. Any right or power conferred, or duly imposed upon any elected official, officer, employee, department, or board of the City shall be subject to transfer by the City to any other elected official, officer, employee, department or board to the extent permitted by applicable law. Sec. 28-1-21. Enforcement. (1) Failure to Enforce Provisions. The Company shall not be excused from complying with any of the terms and conditions of the Franchise Ordinance by any failure of the City upon one or more occasions to insist upon or to seek compliance with any such terms or conditions. (2) Penalties. In addition to any other remedies provided in this Franchise Ordinance, penalties for violations of this Franchise Ordinance are set forth below. As a result of any acts or omissions by Company pursuant to the Franchise Ordinance, City may charge to and collect from the Company, by drawing on the Letter of Credit set forth in Section 28-1-10, or otherwise the following penalties: (a) For failure to provide, after ten (10) days notice, data, documents, reports or information or to cooperate with the City during a renewal process, CATV System Evaluation and Renegotiation Session, or in the conduct of City’s Franchise Ordinance enforcement and administration functions, the penalty shall be Fifty Dollars ($50.00) per day. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 23 (b) For failure to comply with any of the provisions of this Franchise Ordinance after ten (10) days notice, for which a penalty is not otherwise specifically provided, the penalty shall be Fifty Dollars ($50.00) per day. (c) For failure to test, analyze and report on the performance of the CATV System following a request by the City as set forth in this Franchise Ordinance and after ten (10) days notice, the penalty shall be Fifty Dollars ($50.00) per day. (d) For failure of Company to comply with the construction, operation or maintenance standards thirty (30) days following notice from the City, the penalty shall be Two Hundred Dollars ($200.00) per day. (e) For failure to comply with all conditions of City permits to disturb streets, fix streets, or other terms or conditions of City, the penalty shall be Fifty Dollars ($50.00) per day. (3) Notice of Violation. In the event that the City believes that the Company has not complied with any material term of the Franchise Ordinance, the City shall informally discuss the matter with Company. If these discussions do not lead to resolution of the problem, the City shall notify the Company in writing of the exact nature of such alleged noncompliance. (4) The Company’s Right to Cure or Respond. The Company shall have thirty (30) days from receipt of the notice described in subsection (4) to: (a) respond to the City, contesting the assertion of such noncompliance, or (b) cure such default, or (c) in the event that, by the nature of such default, it cannot be cured within the thirty (30) day period, initiate reasonable steps to remedy such default and notify the City of the steps being taken and the projected date that they will be completed. (5) Public Hearing. In the event that the Company fails to respond to the notice described in subsection (3) pursuant to the procedures set forth in subsection (4), or in the event that the alleged default is not remedied within thirty (30) days or the date projected pursuant to (3)(c) above, if it intends to continue its investigation into the default, then the City shall schedule a public hearing. The City shall provide the Company at least ten (10) days prior written notice of such hearing, which specifies the time, place and purpose of such hearing, and provide the Company the opportunity to be heard. Within thirty (30) days of the end of such hearing, the City shall issue a written decision regarding whether a material default of the Franchise Ordinance has been established by clear and convincing evidence in the record. (6) Enforcement. Subject to applicable federal and state law, in the event the City, after the hearing set forth in subsection (5), determines that the Company is in material default of any provision of the Franchise Ordinance, the City may: (a) Impose the penalties specified above and if prompt payment of the penalties is not made by the company, the City may draw on the Letter of Credit. (b) Commence an action at law for monetary damages or seek other equitable relief; or (c) In the case of repeated or ongoing substantial non-compliance with a material term or terms of the Franchise Ordinance, seek to revoke the grant of the franchise pursuant to this Franchise Ordinance in accordance with subsection (7). St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 24 (7) Revocation. Should the City seek to revoke the grant of the franchise after following the procedures set forth in subsections (3) through (6) above, the City shall give written notice to the Company of its intent. The notice shall set forth the exact nature of the repeated or ongoing substantial noncompliance with a material term or terms of the franchise. The Company shall have ninety (90) days from such notice to object in writing and to state its reasons for such objection. In the event the City has not received a satisfactory response from the Company, it may then seek termination of the franchise at a public hearing before the City Council. The City shall cause to be served upon the Company, at least thirty (30) days prior to such public hearing, a written notice specifying the time and place of such hearing and stating its intent to revoke the franchise. At the designated hearing, Company shall be provided a fair opportunity for full participation, including the right to be represented by legal counsel, to introduce relevant evidence, to require the production of evidence, to compel the relevant testimony of the officials, agents, employees or consultants of the City, to compel the testimony of other persons as permitted by law, and to question witnesses. A complete verbatim record and transcript shall be made of such hearing. Following the hearing, the City Council shall determine whether or not the franchise shall be revoked. If the City Council determines that the franchise shall be revoked, the City Council shall promptly provide Company with its decision in writing. The Company may appeal such determination of the City Council to an appropriate court which shall have the power to review the decision of the City Council de novo. Company shall be entitled to such relief as the court finds appropriate. (8) Force Majeure. The Company shall not be held in default under, or in noncompliance with, the provisions of the Franchise Ordinance, nor suffer any enforcement or penalty relating to noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by circumstances reasonably beyond the ability of the Company to anticipate and control. This provision includes work delays caused by waiting for utility providers to service or monitor their utility poles to which the Company’s CATV System is attached, as well as unavailability of materials and/or qualified labor to perform the work necessary. Furthermore, the parties hereby agree that it is not the City’s intention to subject the Company to penalties, fines, forfeitures or revocation of the Franchise Ordinance for violations of the Franchise Ordinance where the violation was a good faith error that resulted in no or minimal negative impact on the Subscribers within the Franchise Area. Sec. 28-1-22. Renewal. The process for renewing this franchise shall be as provided under 47 U.S.C.§ 546 and other applicable federal and state law.. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 25 Sec. 28-1-23. Removal after termination or revocation. (1) At the expiration of the term for which this Franchise Ordinance is granted, or upon its revocation or termination, as provided for herein, and final determination of non-renewal, City shall have the right to require Company to remove, at Company's expense, all or any portion of the CATV System from all streets and public property within City. In so removing the CATV System, Company shall refill and compact at its own expense any excavation that shall be made by it and shall leave all streets and public property in as good a condition as that prevailing prior to Company's removal of the CATV System, and without affecting, altering or disturbing in any way electric telephone or other utility cable, wires or attachments. City shall have the right to inspect and approve the condition of such streets and public property after removal. The Letter of Credit, Bonds, Insurance, Indemnity and Penalty provisions of the Franchise Ordinance shall remain in full force and effect during the entire term of removal. (2) If Company has failed to commence removal of System, or such part thereof as was designated by City, within thirty (30) days after written notice of City's demand for removal is given, or if Company has failed to complete such removal within one year after written notice of City's demand for removal is given, City shall have the right to exercise any of the following options: (a) Declare all right, title and interest to the CATV System to be in City with all rights of ownership including, but not limited to, the right to operate the CATV System or to transfer the CATV System to another for operation. (b) Declare the CATV System abandoned and cause the CATV System or such part thereof, as City shall designate, to be removed at the expense of the Company. The cost of said removal shall be recoverable from the Letter of Credit, Bonds, Insurance, Indemnification and Penalties provided for in this Franchise Ordinance, or from Company directly as liquidated damages. Sec. 28-1-24. Expiration or revocation of franchise. (1) Expiration; Extended Operation. Upon the expiration of a Franchise Ordinance, the City may by resolution direct the Company to operate the Franchise Ordinance for an extended period of not to exceed six (6) months after the date of expiration. The Company agrees to comply with such a direction. All provisions of the Franchise Ordinance shall continue to apply to operations during an extension period. The City shall serve written notice at the Company's business office of intent to extend under this Section at least thirty (30) days prior to expiration. Nothing in the foregoing affects Company’s rights to a franchise renewal under 47 U.S.C. §546. (2) Injunctive Relief. Pending final disposition of proceedings to revoke a Franchise Ordinance, or during a period of extension of a Franchise Ordinance after expiration, the City may obtain injunctive relief to obtain compliance with the provisions of the Franchise Ordinance and maintain the continuity of service to subscribers. Such relief shall be in addition to and not in lieu of other remedies available to the City. If the City prevails, the costs shall be borne by Company including attorneys' fees, costs and disbursements. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 26 (3) Right of City to Purchase; Disposition of Facilities. Upon expiration of the terms of the Franchise Ordinance, or upon a revocation or termination of this Franchise Ordinance, or if renewal of this Franchise Ordinance is denied, the City shall have the right to acquire the CATV System. Any such acquisition shall be at fair market value, determined on the basis of the CATV System as a going concern but with no value allocated to the Franchise Ordinance itself and shall be made pursuant to the provisions of Sections 9-725 (8) and (9) below. If the Franchise Ordinance held by Company is revoked or terminated for cause and the City determines to acquire ownership of the CATV System or effects a transfer of ownership of the CATV System to another person, any such acquisition or transfer shall be at an equitable price. (4) Restoration of Property Upon Removal. In removing its plants, structures and equipment, the Company shall refill at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to the Company's removal of its equipment and appliances, without affecting the electric or telephone cables, wires or attachments. The Director of Public Works shall inspect and approve the condition of the public ways and public places and cables, wires, attachments and poles after removal. Liability insurance, indemnification and the security for performance required by this Franchise Ordinance shall continue in full force and effect during the period of removal. The City shall have a right to all available remedies, including drawing on Company's Letter of Credit required by Section 28-1-10 of this Franchise Ordinance, in order to enforce the requirements of this Section. Sec. 28-1-25. Abandonment. Company shall not abandon the CATV System or any portion thereof without having first given three (3) months' written notice to City. Abandonment shall not occur unless first approved by the City after reasonable opportunity to review. Upon showing by Company of need for abandonment and an opportunity for the City to determine other areas for the continuity of service, the City shall evaluate any damage, claim or loss that may be applicable as a consequence of such abandonment. In order to accomplish this, the City shall conduct a public hearing after providing reasonable notice to all affected persons as to the date, time and place of the hearing. Thereafter, before abandonment occurs, the City shall notify the Company of its determination and any person, including City, entitled to damages and the amount and basis therefore. Company shall not abandon the CATV System or any portion thereof without compensating City for damages resulting to it from the abandonment. Sec. 28-1-26. Unauthorized connections. It shall be unlawful for any person to make an unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of the franchised CATV System within the City for the purpose of taking or receiving television signals, radio signals, pictures, programs, sound, or any other service provided by the Company. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 27 Sec. 28-1-27. Severability. If any section, subsection, sentence, paragraph, term, or provision of this Franchise Ordinance is determined to be illegal, invalid, or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no effect on the validity of any other section, subsection, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of this Franchise Ordinance. Sec. 28-1-28. Work performed by others. (1) Company shall give notice to City specifying the names and addresses of any other entity, other than Company, which performs services pursuant to this Franchise Ordinance, provided, however, that all provisions of this Franchise Ordinance remain the responsibility of Company. (2) All provisions of this Franchise Ordinance shall apply to any subcontractor or others performing any work or services pursuant to the provisions of this Franchise Ordinance. Sec. 28-1-29. Administration and advisory body. (1) Administrator. The City Manager or the City Manager's designee shall be responsible for the continuing administration of this Franchise Ordinance. The administrator may be changed by City from time to time by written notice given to Company. (2) Advisory Body. City may appoint an advisory body to monitor the performance of Company in executing the provisions of this Franchise Ordinance. The advisory body shall perform all functions required of it by the Council and applicable laws, ordinances, rules and regulations. (3) Delegation of Authority by City. (a) City reserves the right to delegate and redelegate from time to time any of its rights or obligations under this Franchise Ordinance to any body or organization. (b) Any delegation by City shall be effective upon written notice by City or Company of such delegation. (c) Upon receipt of notice by Company of City's delegation, Company shall be bound by all terms and conditions of the delegation not in conflict with this Franchise Ordinance. (d) Any such delegation, revocation or redelegation, no matter how often made, shall not be deemed an amendment to this Franchise Ordinance or require any consent of Company. Sec. 28-1-30. Time of acceptance; exhibits (1) Company shall have thirty (30) days from the last date of adoption of this Franchise Ordinance to accept this Franchise Ordinance in form and substance acceptable to City, unless the time for acceptance is extended by City. If this Franchise Ordinance is not accepted by Company in accordance with the terms of this Section, this franchise shall be null and void and without effect. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 28 (2) Upon acceptance of this Franchise Ordinance, Company and City shall be bound by all the terms and conditions contained herein. This Franchise Ordinance constitutes the entire agreement between the Company and the City and supersedes all other prior understandings and agreements oral or written, including the prior franchise ordinance between Company and the City, set forth at Sections 9-701 to 9-733 of the St. Louis Park Code of Ordinances, which is hereby repealed in its entirety. Any amendments to this Franchise Ordinance shall be mutually agreed to in writing by the parties. (3) All of the attached exhibits are a part of this Franchise Ordinance and each is specifically incorporated herein by reference. The exhibits are as follows: Exhibit A: List of City and school district buildings at which Company has agreed to provide free service. Exhibit B: Listing of equipment for the studio facilities and the mobile van provided for by Section 28-1-12 and Section 28-1-14. Exhibit A City of St. Louis Park: City Hall 5005 Minnetonka Boulevard St. Louis Park, MN 55416 St. Louis Park Recreation Center and Wolfe Park Pavilion 3700 Monterey Drive St. Louis Park, MN 55416 Municipal Service Center 7305 Oxford Street St. Louis Park, MN 55426 Fire Station One 3750 Wooddale Avenue St. Louis Park, MN 55416 Fire Station Two 2262 Louisiana Avenue St. Louis Park, MN 55426 Pavek Museum of Broadcasting 3515 Raleigh Avenue St. Louis Park, MN 55416 [Split estimate of $7,569.00 = $3,784.50] St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 29 City Utilities Office 3752 Wooddale Ave S St. Louis Park, MN 55416 Westwood Hills Nature Center 8300 West Franklin Avenue St. Louis Park, MN 55426 Police Station 3015 Raleigh Avenue St. Louis Park, MN 55416 Meadowbrook Community Police Station 4072 Meadowbrook Lane St. Louis Park, MN 55426 Excelsior/Grand Community Police Station 4717 Park Commons Drive St. Louis Park, MN 55416 Texatonka Community Police Station 8038 Minnetonka Blvd St. Louis Park, MN 55426 ISD 283: Lenox Community Center 6715 Minnetonka Blvd. St. Louis Park, MN 55426 Eliot School Building 6800 Cedar Lake Road St. Louis Park, MN 55426 Aquila Primary Center 8500 West 31st Street St. Louis Park, MN 55426 Peter Hobart Primary Center 6500 West 26th Street St. Louis Park, MN 55416 Susan Lindgren Intermediate Center 4801 West 41st Street St. Louis Park, MN 55416 St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 30 Cedar Manor Intermediate Center 9400 Cedar Lake Road St. Louis Park, MN 55426 St. Louis Park Jr. High School 2025 Texas Avenue South St. Louis Park, MN 55426 St. Louis Park Sr. High School 6425 West 33rd Street St. Louis Park, MN 55416 District Maintenance Shop 6400 Walker Street St. Louis Park, MN 55416 Cable TV connection to Non-Public Schools is by arrangement between the system operator and each school. Certain school buildings are currently being provided service through school-owned transmission facilities. The City agrees that free service to such schools shall be contingent upon continued availability of such school-owned transmission facilities or some other mutually acceptable arrangement. St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 31 Exhibit B St. Louis Park Inventory STUDIO QUANTITY ITEM M/N S/N 2 Sony Cameras DXC-1820 10208 13690 2 Sony Viewfinders DXF-40 14354 14353 2 Canon 1820 Lenses VCL1012SY 13336 16115 2 Sony ENG Viewfinders DXF-1820 10192 14156 2 Canon Rear Focus Controls (1820) 2 Canon Focus Cables 2 Remote Control Zooms (1820) 2 Sony 25m Camera Cables 1 JVC 20m Camera Cable 1 Miller Tripod/Head/Dolly 705 51376 2 Gitzo Camera Tripods G515 2 Bogen Tripod Head 3066 2 Bogen Tripod Dolly 3067 2 Berkey Colortron Fresnel Lights LQV-10 3 Smith-Victor Broad Lights 750 2 Sony Lavalier Microphones ECM-44B 215677 200153 1 Sony Lavalier Microphone ECM-30 22305 2 Sony Lavalier Microphones ECM-50PS 40619 1 Panasonic Monitor 1920 UG4327812 2 Easels for Camera Cards 4 Lear/R-Columbia Intercom Headset RC-75/B 3 Lear/R-Columbia Intercom Station RC501 1 Clearcom Intercom Station 501 A076955 1 Lear/R-Columbia Power Station MS/PW5 1 Realistic Speaker 1 Kodak Slide Projector St. Louis Park Inventory CONTROL ROOM QUANT. ITEM M/N S/N 2 Winstead Racks on Caster Frames 2 Emcor 72" Racks 1 Panasonic Production Switcher WJ5500B 33A00330 St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 32 1 Tektronix Waveform Monitor 528 B227567 1 Alta Timebase Corrector Cygnus HHC976 1 Amiga Computer A-2000 HK0022936 1 Amiga Computer Keyboard KKQ-E944C MT9207 1 Amiga Mouse Pad 1 Amiga Mouse B27000271 1 Super Gen-Amiga Genlock SG-10 3JSG0299177 1 Amiga Workbench Program 1 Deluxe Paint II Program 1 TV TEXT Program 1 JMH EASY TITLER Program 1 Video & Audio Patch Bay 2x26 21 Video & Audio Patch Cords 1 Furio Wall Clock 1 Shure Audio Mixer M267 1 Panasonic Audio Mixer WR450 3 Panasonic B&W 5" Monitors WV-5200BU 18Z02384 18Z02385 18Z02386 3 SEC Electronics 5" Monitors CH917 605619 605591 807550 1 Toshiba TV-Monitor CF2044J 83482612 2 Sony Camera Power Supplies CMA-8 12555 12556 1 Sony Trinitron 8" PVM-8200T 011441 1 Panasonic B&W 8” Monitor TR-930B KD9531020 1 JVC Remote Control Unit RMP200 15551091 2 Sony Camera Control Units CCU-1820 10322 10743 1 TEAC Audio Cassette Recorder CX-311 1203103 1 JVC VHS VCR BR-6400N 8915804 1 Panasonic SVHS VCP AG-7150K G2TC00224 1 Panasonic SVHS VCP AG-7150K G2TC00214 1 Sony U-matic VCP VP-7020 15149 1 Sony U-matic VCP VP-7000 17617 1 Microtime TBC T120 TXP8500N 2 Sony Trinitron Color Monitors PVM8200 503478 503594 2 Sony 3/4" VCR 5850 17320 72958 1 Sony Edit Controller RMM-440 17495 2 Multi-pin Cables for above 1 Gralab Darkroom Timer 1 Realistic Speaker 10" 1 9 Outlet Power Strip 1 6 Outlet Power Strip 2 13 Outlet Power Strip St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 33 1 16 Outlet Power Strip 1 15 Outlet Power Strip 1 Texscan/MSI Playback System SG4BRM 306 1 Texscan/MSI Charactor Generator SG4 1 Sigma Video Distribution Amp VDA100A 5830018 1 ISS Video Demodulator GL-1000A 1 Logic Relay Board 1 Sony Color Monitor/receiver 12" CVM1250 505835 1 Texscan Keyboard SG-4 103 1 Gray Metal Rack St. Louis Park Inventory PRODUCTION VAN QUANT. ITEM M/N S/N 3 Emcor Racks 1 ECHOlab Special Effects Generator DV-7 7577 1 Canopus Digital Video Converter ADVC-500 709748 1 Videonics Firestore FS-1 3484 5 LaCie External Hard Drives 300699U 0869404300584C 0869404300556C 0869402250014C 0869404300544C 0869404300552C 1 Sigma Color Bars Generator CBG-100A 1 Sigma Black Burst Generator BSG-100A 2 Sigma Video Distribution Amp. VDA-100A 1 Panasonic Video Switcher WJ-220R 28200053 4 Panasonic Color Cameras WV-F200CLE 88AO9513 9501 9520 9514 4 Panasonic Camera Control Units WV-RC-36 47R00110 88R00293 301 305 4 Panasonic Studio Viewfinder WV-VF65B 89I51160 89I51210 8XI51548 72I52957 2 Panasonic ENG Viewfinder WV-VF38 85Z00203 WV-VF38A 9ZZ00406V 2 Panasonic Camera Case 2 Portabrace Softsided camera case 4 Canon Manual Focus Control NA NA 4 Canon Servo Zoom Control WV-LK35 NA 11 Panasonic Camera Cable-100 ft 32A-100 St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 34 4 Panasonic Camera Cable-50 ft 32A-50 6 Panasonic Camera Cable-20 ft 32A-20 1 Sony U-matic VCR VO-5800 20563 1 Sony VTR Remote Control Unit RM-500 23203 2 Panasonic SVHS VCR AG-7300 B1TH00425 C8TB00047 1 Sony Color Monitor (announcer) PVM-8040 2014440 2 JVC Color Monitors TM-A9UCV/A 17400866 17400859 3 Panasonic 5” B&W Monitors WV-5200BU 96I01504 503 502 3 Panasonic 5" B&W Monitors WV-BM500U 61W15954 955 956 1 JVC 9” Color Monitor TM-R9U 6304796 1 Panasonic 13" Color Monitor CT-1384VY MB42080329 1 Tektronix Waveform/Vector Monitor 1740 B025642 1 Soundcraft 12 Ch. 4 Bus Mixer Sprint SX RW5347006586 1 Telex Mastercontrol Station MS-2002 10386 1 Telex Headset PH1 64438-005 1 David Clark Headset H3390 16985G-04 3 Telex Headsets PH81 64438-004 1 Light Kit 1 Lowell Barn Door Frame 1 Lowell Quartz Spot-Flood 2 Lowell Light Stands 2 Barn Door Frames/Smith-Victor 2 Smith-Victor Flood/Spot Lights 720 1 Smith-Victor Plate Stands SA48 401234 1 Audio Kit Case 1 Gitzo Tripod 1 ITE Tripod Head H-40 1 Miller Dolly 2 ITE Dollies D-40 1 Sennheiser EW100 Receiver EK100 130814 1 Sennheiser EW100 Transmitter EK100 103418 3 Miller Tripod Head 157 D70542 D70775 D70777 3 Miller Tripod 1307 TG0196 TG0425 TG0427 3 Shure Desk Top Mic Stands 1 6 Outlet AC Power Strips 2 50' Blue Grounded AC Cords 1 100’ Orange Grounded AC Cord 1 100’ Yellow AC Cord St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 35 1 50’ Orange AC Cord 5 100' XLR Audio Cables 3 50' XLR Audio Cables 2 20' XLR Audio Cable 1 Pro Co Roadmaster 200' 6x2 Audio Snake HE-123565 2 Panasonic Monitors TR-930 Kn2141658 1657 1 For A Time Base Corrector FA-310 3245917 2 Beyerdynamics Announcer Headsets DT 290 15061 4807 1 Videophonics Character Generator PS-10005 300159 2 EV Lavalier Microphones C090 Lo-Z 9342 1 EV Handheld Mic 635A 3 Long RF Cables 1 Panasonic AC Adapter/Charger WV-PS31 96I51111 1 Panasonic Condenser Shotgun Mic WV-MC35 2 Ultimate Floor Mic Stands 1 Telex Vac Box IC1 1 Portable Table 1 Case (for announcer equipment) 1 Announcer Module 2 Stools 1 Plastic Box (for zoom and focus arms) St. Louis Park Council Meeting Item: 121905 - 6b - Time Warner Franchise Renewal Page 36 Section 2. Effective Date. This Ordinance shall be effective fifteen (15) days after its passage and publication and after acceptance by the Company pursuant to Section 28-1-30. ADOPTED this ______ day of ____________, 2005, by the City Council of the City of St. Louis Park. CITY OF ST. LOUIS PARK By:___________________________ Jeffrey W. Jacobs, Mayor ATTEST: _______________________________ Nancy Stroth, City Clerk APPROVED AS TO FORM: ________________________________ City Attorney St. Louis Park Council Meeting Item: 121905 - 8a - Comcast Transfer Page 1 8a. Comcast Transfer Proposed transfer of the Cable Communications Franchise Ordinance and cable system from Time Warner Cable, Inc. to Comcast Cable Communications, LLC. Recommended Action: Motion to adopt attached resolution approving the transfer of the Cable Communications Franchise Ordinance and cable system from Time Warner Cable, Inc. to Comcast Cable Communications, LLC. Background: On June 15, 2005, Comcast notified the City about an agreement to purchase all of Time Warner Cable’s Minnesota cable TV systems, including St. Louis Park’s franchise. Time Warner and Comcast are purchasing the bankrupt Adelphia cable systems for about $12.7 billion in cash. Adelphia has about 5 million subscribers, and the systems will be geographically divided between Comcast and Time Warner so the systems can be clustered together. As part of the clustering, Time Warner’s Minnesota, Florida and Louisiana franchises would be swapped for Comcast’s Dallas, Los Angeles and Cleveland area franchises. Some Minnesota cities have already granted Comcast’s request for franchise transfers, including Helena, Jackson, Jordan, Lanesboro, Lewisville, Madelia, New Ulm, Sand Creek and Waverly. Bloomington recently approved the transfer with the condition that the Time Warner franchise fee review be settled to the satisfaction of the City. The City has retained Brian Grogan of Moss & Barnett to assist with the franchise transfer process. A report from Mr. Grogan is designed to comment on Comcast’s legal, technical and financial ability to operate the franchise, the parameters set by federal law. In addition, a franchise fee review has also been in process. Comcast and Time Warner Cable are the two largest cable operators in the United States, and offer similar services, including video, high speed data, and telephone. Regarding St. Louis Park’s specific franchise, which was originally set to expire on October 10, 2005, Comcast’s Director of Government Relations, Kathi Donnelly-Cohen told the Telecommunications Advisory Commission on August 4, 2005 that until a new franchise agreement is in effect, Comcast would meet all terms of the existing franchise after the transfer. Area of Concern: There is one customer benefit Time Warner offers that probably will not continue if the system is transferred to Comcast: a choice of high speed data internet service providers (ISP’s). When America Online purchased Time Warner in 2000, the Federal Trade Commission (FTC) required that customers have a choice of ISP’s, a unique arrangement in the cable television industry. As a result, Time Warner high speed data customers can choose between these ISP’s: Road Runner, AOL Broadband and EarthLink. Comcast customers do not have a choice of ISP’s. St. Louis Park Council Meeting Item: 121905 - 8a - Comcast Transfer Page 2 Traditional “common carrier” telephone companies like Qwest and Verizon must allow competing ISP’s on their systems. However, a recent Federal Communications Commission ruling may remove this requirement within a year, thereby removing the requirement for ISP competition for both the cable and telephone industry. Cable systems lead in the competition for residential high speed data customers with 18.7 million customers compared to the telephone companies’ 11.8 million customers (December 31, 2004 figures reported by Pike & Fischer). The City has no direct authority over the high speed data or telephone services offered by Time Warner due to Federal Communications Commission rulings or Federal law. However, City staff has been contacted by several EarthLink customers that would like to continue with that service after the system is transferred to Comcast. Other subscribers have addressed the City Council on this item as well. Customers may well be forced to change domain names for their e- mail addresses after the transfer, a disruptive process for both residents and business people. Comcast has been notified of this concern multiple times and is aware of it. They have been invited to address the City Council on its plans to assist subscribers make whatever domain name transition may be necessary should the transfer actually be completed. As of this writing, staff has not received any additional information or response from Comcast on this issue. Hopefully, Comcast will be able to address this question for current TW customers. Process: At its September 19, 2005 meeting, Council closed the public hearing related to this issue. On October 10, staff reported that while the City awaits Brian Grogan’s Comcast report, a final Time Warner franchise fee review had been completed. Findings from the franchise fee review of 2002-2004 reveal that TW may have underpaid the City “between $60,000 to $73,500 based on the limited information available to estimate the underpayments,” according to Front Range Consulting. Front Range conducted a fee review, which is less intensive than a fee audit and results in more rounded numbers than an audit. This report has been shared with Time Warner and City staff expects to work toward a settlement. After further review and discussion with TW, City staff feels agreements made as part of the TW franchise renewal ordinance are more beneficial than pursuing any possible underpayments identified in the review. St. Louis Park partnered with Bloomington, Minneapolis and Shakopee on the fee review, and Shakopee has already received a settlement check. Bloomington expects settlement in the next six months. The City has also received Brian Grogan’s Comcast report (available for review at the City Clerk’s Office). Mr. Grogan’s report concludes that Comcast has the legal, technical, and financial capability to operate the St. Louis Park franchise. With the franchise fee review findings settled along with tonight’s first reading of a franchise renewal, conditions are now ripe for approving the transfer to Comcast. St. Louis Park Council Meeting Item: 121905 - 8a - Comcast Transfer Page 3 Other Time Warner Franchises: The latest staff information on the status of some other TW franchises and transfer to Comcast is as follows: Bloomington – Approved with minor conditions. Fridley – Approved (franchise renewal also approved). Minneapolis – Approved with several conditions (franchise renewal also in formal process). Shakopee – Minor conditions still under discussion. Southwest Suburbs – Approved with minor conditions. Recommendation: In order to facilitate all proceedings, including the transfer process, staff recommends that Council adopt the attached resolution approving the transfer of the Cable Communications Franchise Ordinance and cable system from Time Warner Cable, Inc. to Comcast Cable Communications, LLC. It should also be noted that some Council action is required by December 20, 2005 or the transfer is deemed approved without conditions unless both parties agree to an extension. Attachments: Resolution Agreement Acceptance Prepared by: Clint Pires, Director of Technology and Support Services Approved by: Nancy Gohman, Deputy City Manager/HR Director St. Louis Park Council Meeting Item: 121905 - 8a - Comcast Transfer Page 4 RESOLUTION NO. 05-177 A RESOLUTION APPROVING THE PROPOSED CHANGE OF CONTROL OF TIME WARNER WHEREAS, on or about February 13, 1989, the City of St. Louis Park, Minnesota (“City”) passed and adopted a Cable Communications Franchise Ordinance (“Franchise”), currently held by Time Warner Cable Inc. (“Franchisee”). WHEREAS, on or about June 15, 2005, Franchisee submitted to the City FCC Form 394, Application for Franchise Authority Consent to Assignment or Transfer of Control of Cable Television Franchise (“Form 394”). WHEREAS, Form 394 constitutes Franchisee’s application to transfer the system to MOC Holdco II, Inc. which will wholly own Cable Holdco II Inc. (“Proposed Franchisee”). WHEREAS, pursuant to a Redemption Agreement, dated April 20, 2005, by and among Comcast Cable Communications Holdings, Inc.; MOC Holdco II, Inc.; TWE Holdings I Trust, TWE Holdings II Trust; Cable Holdco II Inc., Time Warner Cable Inc. and other related parties: (a) the Franchisee cable system and Franchise will be assigned to a wholly-owned subsidiary of Franchisee, Cable Holdco II Inc. and (b) immediately thereafter, pursuant to the same Redemption Agreement, all of the stock of Cable Holdco II Inc. will be acquired by MOC Holdco II, Inc., an indirect wholly-owned subsidiary of Comcast Cable Communications Holdings, Inc. The assignment and change of control described herein shall collectively be referred to as the “Transaction.” WHEREAS, under the City’s Franchise and applicable law, the Transaction requires consent from the City. WHEREAS, the City has reviewed the Transaction and the legal, technical, and financial qualifications of MOC Holdco II, Inc. and its corporate parent entities. WHEREAS, the City has retained Front Range Consulting, Inc. (“FRC”) to review the franchise fee payments made by the Franchisee for the period January 2002 through December 2004 (“Accounting Period”). WHEREAS, the City received a report from FRC alleging that the Franchisee has underpaid the City for Franchisee’s franchise fee obligations during the Accounting Period. WHEREAS, the City desires to reach mutually acceptable resolution of the alleged underpaid franchise fees with Franchisee. St. Louis Park Council Meeting Item: 121905 - 8a - Comcast Transfer Page 5 WHEREAS, the City has also been engaged in informal renewal negotiations with Franchisee and the City has extended the term of the Franchise on several occasions in an attempt to provide additional time for the parties to reach mutually acceptable language for the renewal of the Franchise. WHEREAS, both the City and Franchisee have retained all rights each may have under federal law to conduct the renewal via the formal renewal process found at 47 U.S.C. 546 should the parties be unable to reach an informal agreement. WHEREAS, the City has expressed concerns that the Transaction may adversely impact the City’s ability to properly conduct a formal renewal proceeding, if necessary, in a timely manner. WHEREAS, based on information obtained and on the reports and information received by the City, the City has elected to consent to the Transaction with certain conditions imposed upon the approval. NOW, THEREFORE, the City of St. Louis Park, Minnesota hereby resolves as follows: 1. The Franchise is in full force and effect, and Franchisee is the lawful holder of the Franchise. 2. Each of the foregoing recitals is hereby incorporated by reference. 3. The City hereby consents and approves of the Transaction as contemplated under the Redemption Agreement, subject to: a. Closing of the Transaction described in information provided to the City by Franchisee and MOC Holdco II, Inc. b. MOC Holdco II, Inc., within thirty (30) days of the date of closing, notifying the City in writing of the completion of the Transaction. c. Cable Holdco II Inc., within thirty (30) days of the date of closing, providing the City with a signed acceptance of this Resolution in the form attached hereto and incorporated by reference. d. Cable Holdco II Inc., within thirty (30) days of the date of closing, providing the City with a Certificate of Authority to conduct business in the State of Minnesota. 4. The City hereby waives any right of first refusal which the City may have to purchase the Franchise, or the cable system serving the City, but only as such right of first refusal applies to the request for approval of the Transaction now before the City. 5. By this consent the City does not make any representation that Franchisee is in compliance with its obligations under the Franchise. St. Louis Park Council Meeting Item: 121905 - 8a - Comcast Transfer Page 6 6. By this consent the City does not waive any of Franchisee’s commitments, duties and obligations under the Franchise, including any accrued and unfulfilled obligation of the Franchisee, whether known or unknown, relating to the Franchise. 7. In the event the Transaction contemplated under the Redemption Agreement is not completed, for any reason, or is modified in any material manner, the City’s consent provided hereunder shall not be effective. 8. This Resolution shall take effect and continue and remain in effect from and after the date of its passage, approval, and adoption. Reviewed for Administration: Adopted by the City Council December 19, 2005 City Manager Mayor Attest: City Clerk St. Louis Park Council Meeting Item: 121905 - 8a - Comcast Transfer Page 7 ACCEPTANCE AND AGREEMENT Cable Holdco II Inc., hereby accepts this Resolution No. 05-177 and agrees to be bound by the terms and conditions of this Resolution and the lawful terms and conditions of the Franchise referenced within the Resolution. Dated this day of , 20 CABLE HOLDCO II INC. By: Its: STATE OF ) ) ss. COUNTY OF ) The foregoing instrument was subscribed and sworn to before me this day of 200 , by , the of Cable Holdco II Inc. SEAL Notary Public St. Louis Park Council Meeting Item: 121905 - 8b -2006 Property Tax Levy, Budget, And HRA Levy Page 1 8b. Adopt 2006 Property Tax Levy , 2006 Budget, 2005 Revised Budget, HRA Levy, 2004 Fund Balance Allocations, and 2006 – 2010 Capital Improvement Program This is the final step in approving the 2006 property tax levy, 2006 budget, 2005 revised budget, 2006 HRA levy, 2004 Fund Balance Allocations, and 2006 – 2010 Capital Improvement Program. Recommended Action: 1) Motion to adopt resolution approving the 2005 Property Tax Levy collectible in 2006, adopting the Budget for 2006, and adopting the Revised Budget for 2005 2) Motion to adopt a resolution authorizing the HRA Levy for 2006 3) Motion to adopt a resolution transferring reserves out of the General Fund 4) Motion to approve 2006 – 2010 Capital Improvement Program 5) Motion to adopt a resolution approving an amendment to the Comprehensive Plan Year 2000 to Year 2020 for the City per Minnesota Statutes, incorporating the Capital Improvement Program (CIP) Year 2006 to Year 2010; approve summary resolution for publication Background The City Council has been discussing the 2006 Budget, 2006 Property Tax Levy, 2005 Revised Budget, and the HRA Levy for the past 6 months. As part of the Budget discussions, Council has reviewed the recommended transfers out of the General Fund based on the reserve requirements established by Council in 1994. In September, the City Council approved the preliminary tax levy, budget, and HRA levy for 2006. A Public Hearing was held on these items December 5, 2005 as part of the regular City Council meeting. Council has also been discussing the 5-year Capital Improvement Program. The Capital Improvement Program was reviewed by the Planning Commission on December 7th and found to be consistent with the Comprehensive Plan. 2005 Property Tax Levy collectible in 2006 The property tax levy payable for 2006 reflects an increase of 7% when compared to the 2005 property tax levy. 3.02% of this levy is to be used for general operations with the remaining 3.98% directed towards infrastructure improvements and debt obligations. The allocation of property taxes is illustrated below: St. Louis Park Council Meeting Item: 121905 - 8b -2006 Property Tax Levy, Budget, And HRA Levy Page 2 Property Taxes and Market Value Homestead Credit General Fund 13,139,286$ Park and Recreation 2,840,725 Park Improvement 1,010,000 Pavement Management 415,000 Debt Service (includes 1999, 2003, and 2005 GO Bond Issues)1,110,200 Total Property Tax Levy and Market Value Homestead Credit 18,515,211$ 2006 Property Tax Levy Distribution 2006 Budget General Fund Budget Total revenues and expenditures increased by $873,589 from the adopted 2005 budget. The increases are due to the following; Property Tax Levy 302,617$ General Government 169,861$ Intergovernmental Revenue 16,337 Public Safety 577,577 Licenses and Permits 219,675 Public Works 93,579 Charges for Services 49,102 Contingency and Transfers 32,572 Miscellaneous Rev. and Transfers 285,858 Use of Reserves Total Revenue Increase 873,589$ Total Expenditure Increase 873,589$ Revenues Expenditures The 2006 General Fund budgeted revenues and expenditures show an increase over the 2005 adopted budget of approximately 4.24%. The increase in revenue is due primarily to the property tax levy increase, licenses and permit revenue, and transfers. Primary expenditure increases are due to compensation and utility costs. The budget document itself identifies the areas of change for each division. St. Louis Park Council Meeting Item: 121905 - 8b -2006 Property Tax Levy, Budget, And HRA Levy Page 3 HRA Levy: This is the fifth year the City is proposing to issue a Housing and Redevelopment (HRA) levy. The reason for proposing an HRA levy is because of legislative changes in the tax increment statutes. The legislative changes have severely hampered the ability of the City to do future redevelopment projects. The 2006 levy is $641,106, compared to the 2005 levy of $598,543. These dollars will be used for infrastructure improvements in redevelopment areas. The City has always had the authority to issue this type of levy. The levy itself is based on a percentage of taxable market value within the community. The revenue generated from this levy is found in the Development Fund budget located in the EDA tab in your budget document. 2006 – 2010 Capital Improvement Program The City of St. Louis Park has a five-year Capital Improvement Program (CIP) that accounts for substantially all improvements that are known throughout the City. This program provides for operational impacts as well as capital expenditures. There are five primary areas within the CIP. Each of these areas has a variety of funding sources and is subject to change based on revised cost estimates and priority as assigned by Council. Summary, as well as detailed, information about each project in the 5-year plan is located in the 2006 budget document under the tab Capital Improvement Program. Council is being asked to adopt the 2006 CIP and approve the years 2007 – 2010 in concept only. As mentioned above, the Planning Commission reviewed this program on December 7, 2005 and found no conflicts between the 5-year Capital Improvement Program (CIP) and the Comprehensive Plan. The Commission recognizes that the CIP will be updated each year with the attempt to reflect additional Comprehensive Plan initiatives, which span out to the year 2020. At the December 7, 2005 meeting, the Planning Commission voted unanimously to recommend that the City Council adopt a resolution amending the Comprehensive Plan 2000 – 2020 to incorporate the 2005 – 2009 CIP subject to Metropolitan Council approval. Transfer of Funds At the end of each year, the General Fund balance is evaluated for compliance with the resolution established for the reserve requirements within the General Fund. The resolution indicates how the Fund Balance is calculated and the level of reserves that must be maintained. A copy of the resolution adopted in 1994 is attached. At the end of 2004, this balance was evaluated and found to be $1,300,000 more than the required amount. Staff is recommending the resources be allocated as follows; St. Louis Park Council Meeting Item: 121905 - 8b -2006 Property Tax Levy, Budget, And HRA Levy Page 4 Fund Amount Explanation Technology Replacement 800,000$ Resource allocation towards 5-year CIP Municipal Building 200,000 Resource allocation towards 5-year CIP Employee Benefit 200,000 Resource allocation towards unfunded compensated absences (accrued flex leave and frozen sick banks) Parks and Recreation 100,000 Resource allocation towards increasing reserve levels Total 1,300,000$ Recommendation: Motion to adopt the following resolutions; Ø 2006 budget, 2005 revised budget, 2005 property tax levy collectible in 2006 Ø HRA levy Ø Resolution approving an amendment to the Comprehensive Plan Year 2000 to Year 2020 for the City per Minnesota Statutes, incorporating the Capital Improvement Program (CIP) Year 2005 to Year 2009 Ø Resolution authorizing the transfer of General Fund reserves Motion to approve summary resolution for publication Attachments: Resolutions (4) Summary Publication 2006 Budget and Capital Improvement Program (supplement) Prepared By: Jean McGann, Director of Finance Approved By: Nancy Gohman, Deputy City Manager/HR Director St. Louis Park Council Meeting Item: 121905 - 8b -2006 Property Tax Levy, Budget, And HRA Levy Page 5 RESOLUTION NO. 05-178 RESOLUTION APPROVING 2005 TAX LEVY COLLECTIBLE IN 2006, ADOPTING BUDGET FOR 2006, AND REVISED BUDGET FOR 2005 WHEREAS, The City of St. Louis Park is required by Charter and State law to approve a resolution setting forth an annual tax levy to the Hennepin County Auditor; and WHEREAS, Minnesota Statutes currently in force require approval of a property tax levy and a budget on or before December 28th of each year; and WHEREAS, the City Council has received the budget document; NOW THEREFORE, BE IT RESOLVED, by the City Council of the City of St. Louis Park that the 2005 revised budget is approved and the 2006 budget for all Governmental Funds, (including Economic Development Authority Funds), Enterprise Funds and Internal Service Funds shall be as follows: AVAILABLE RESOURCES:REQUIREMENTS: Revenues:Appropriations: General Property Taxes 18,247,716$ Personal Services 22,352,998$ Tax Increment Revenue 5,568,454 Supplies, Services and Other Charge 24,865,694 Licenses and Permits 2,485,100 Capital Outlay 6,910,976 Integovernmental 3,990,215 Transfers Out 6,667,319 Charges for Services 4,048,447 Fines, Forfeits and Penalties 283,300 Enterprise 10,032,237 Miscellaneous 3,884,150 Investment Earnings 1,159,787 Transfers In 7,667,319 Total Revenue 57,366,725$ Total Appropriations 60,796,987$ Fund Balance/Reserves - Janua 138,087,186 Fund Balance/Reservices - Dec 31 134,656,924 Total Available 195,453,911$ Total Available 195,453,911$ and as supported by the 2006 budget document; and BE IT FURTHER RESOLVED, a Public Hearing on this budget was held on December 5, 2005; and St. Louis Park Council Meeting Item: 121905 - 8b -2006 Property Tax Levy, Budget, And HRA Levy Page 6 BE IT FURTHER RESOLVED, that the City Council of the City of St. Louis Park, Hennepin County, Minnesota, that the following sums of money be levied in 2005, collectible in 2006 upon the taxable property in said City of St. Louis Park for the following purposes: General Fund 13,139,286$ Park and Recreation 2,840,725 Park Improvement 1,010,000 Pavement Management 415,000 Debt Service 1,110,200 Total 18,515,211$ and BE IT FURTHER RESOLVED, that the City Clerk is hereby authorized and directed to transmit a certified copy of this resolution to the County Auditor of Hennepin County, Minnesota and to the Local Government Aids/Analysis Division, Department of Revenue, State of Minnesota as required by law. Reviewed for Administration: Adopted by the City Council December 19, 2005 City Manager Mayor Attest: City Clerk St. Louis Park Council Meeting Item: 121905 - 8b -2006 Property Tax Levy, Budget, And HRA Levy Page 7 RESOLUTION NO. 05-179 RESOLUTION AUTHORIZING THE HRA LEVY FOR 2006 WHEREAS, pursuant to Minnesota Statutes, Section 469.090 to 469.108 (the “EDA Act”), the City Council of the City of St. Louis Park created the St. Louis Park Economic Development Authority (the "Authority"); and WHEREAS, pursuant to the EDA Act, the City Council granted to the Authority all of the powers and duties of a housing and redevelopment authority under the provisions of the Minnesota Statutes, sections 469.001 to 469.047 (the "HRA Act"); and WHEREAS, Section 469.033, subdivision 6 of the Act authorizes the Authority to levy a tax upon all taxable property within the City to be expended for the purposes authorized by the HRA Act; and WHEREAS, such levy may be in an amount not to exceed 0.0144 percent of taxable market value of the City; and WHEREAS, the Authority has filed its budget for the special benefit levy in accordance with the budget procedures of the City; and WHEREAS, based upon such budgets the Authority will levy all or such portion of the authorized levy as it deems necessary and proper; NOW, THEREFORE, BE IT RESOLVED, by the St. Louis Park City Council: 1. That approval is hereby given for the Authority to levy, for taxes payable in 2006, such tax upon the taxable property of the City as the Authority may determine, subject to the limitations contained in the HRA Act. Reviewed for Administration: Adopted by the City Council December 19, 2005 City Manager Mayor Attest: City Clerk St. Louis Park Council Meeting Item: 121905 - 8b -2006 Property Tax Levy, Budget, And HRA Levy Page 8 RESOLUTION NO. 05-180 A RESOLUTION APPROVING AN AMENDMENT TO THE COMPREHENSIVE PLAN 2000 TO THE YEAR 2020 FOR THE CITY OF ST. LOUIS PARK UNDER MINNESOTA STATUTES 462.351 TO 462.364 INCORPORATING CAPITAL IMPROVEMENT PROGRAM (CIP) 2006 - 2010 WHEREAS, the Comprehensive Plan 2000-2020 was adopted by the City Council on May 17, 1999 (effective September 1, 1999) and provides the following: 1. An official statement serving as the basic guide in making land use, transportation and community facilities and service decisions affecting the City. 2. A framework for policies and actions leading to the improvement of the physical, financial, and social environment of the City, thereby providing a good place to live and work and a setting conducive for new development. 3. A promotion of the public interest in establishing a more functional, healthful, interesting, and efficient community by serving the interests of the community at large rather than the interests of individual or special groups within the community if their interests are at variance with the public interest. 4. An effective framework for direction and coordination of activities affecting the development and preservation of the community. 5. Treatment of the entire community as one ecosystem and to inject long range considerations into determinations affecting short-range action, and WHEREAS, the use of such Comprehensive Plan will insure a safer, more pleasant, and more economical environment for residential, commercial, industrial, and public activities and will promote the public health, safety, and general welfare, and WHEREAS, said Plan will prepare the community for anticipated desirable change, thereby bringing about significant savings in both private and public expenditures, and WHEREAS, the Comprehensive Plan has taken due cognizance of the planning activities of adjacent units of government, and WHEREAS, the Comprehensive Plan is to be periodically reviewed by the Planning Commission of the City of St. Louis Park and amendments made, if justified according to procedures, rules, and laws, and provided such amendments would provide a positive result and are consistent with other provisions in the Comprehensive Plan, and St. Louis Park Council Meeting Item: 121905 - 8b -2006 Property Tax Levy, Budget, And HRA Levy Page 9 WHEREAS, fiscal devises such as the City’s 5-year capital improvement program for transportation, utilities, and parks is used as a tool to implement the goals and policies of the Comprehensive Plan, and WHEREAS, the City’s capital improvement program is updated annually to incorporate new projects and new sources of funding, and WHEREAS, the Planning Commission reviewed the Capital Improvement Program 2006 – 2010 and found it to be consistent with the goals and policies of the Comprehensive Plan 2000 – 2020, and WHEREAS, the Planning Commission of the City of St. Louis Park recommended adoption of an amendment to the Comprehensive Plan 2000-2020 to incorporate the Capital Improvement Program 2006 – 2010 on December 7, 2005, based on statutes, the Metropolitan Regional Blueprint and existing goals, policies and implementation strategies of the adopted Comprehensive Plan 2000 – 2020. NOW THEREFORE BE IT RESOLVED by the City Council of St. Louis Park that the Capital Improvement Program 2006 – 2010 is hereby approved and the Comprehensive Plan, as previously adopted by the Planning Commission and City Council, is hereby amended as follows: Incorporation of Capital Improvement Program 2006 - 2010 to replace CIP 2005-2009. Reviewed for Administration: Adopted by the City Council December 19, 2005 Contingent upon approval of the Metropolitan Council City Manager Mayor Attest: City Clerk St. Louis Park Council Meeting Item: 121905 - 8b -2006 Property Tax Levy, Budget, And HRA Levy Page 10 SUMMARY RESOLUTION NO. 05-180 A RESOLUTION APPROVING AN AMENDMENT TO THE COMPREHENSIVE PLAN 2000 TO THE YEAR 2020 FOR THE CITY OF ST. LOUIS PARK UNDER MINNESOTA STATUTES 462.351 TO 462.364 INCORPORATING CAPITAL IMPROVEMENT PROGRAM (CIP) 2006 – 2010 This resolution states that the City of St. Louis Park’s Capital Improvement Program (CIP) 2006 – 2010 shall be incorporated into the Comprehensive Plan 2000 to the year 2020. This resolution shall take effect upon approval of the amendment by the Metropolitan Council. Adopted by the City Council on December 19, 2005 Contingent upon approval of the Metropolitan Council Jeffrey W. Jacobs /s/ Mayor A copy of the full text of this resolution is available for inspection with the City Clerk. Published in the St. Louis Park Sailor: December 30, 2005 St. Louis Park Council Meeting Item: 121905 - 8b -2006 Property Tax Levy, Budget, And HRA Levy Page 11 RESOLUTION NO. 05-181 RESOLUTION AUTHORIZING A TRANSFER FROM THE GENERAL FUND TO THE TECHNOLOGY REPLACEMENT FUND, MUNICIPAL BUILDING FUND, PARKS AND RECREATION FUND, AND EMPLOYEE BENEFIT FUND WHEREAS; The City of St. Louis Park established a minimum fund balance policy on December 19, 1994 and WHEREAS; It is considered sound financial practice to analyze fund balances on a continuing basis and WHEREAS; It has been determined that $1,300,000 should be transferred out of the General Fund to provide funding for Technology Replacements, Municipal Building functions, Employee Benefit Compensated Absences Unfunded Liability, and Parks and Recreation reserve levels. NOW, THEREFORE BE IT RESOLVED, by the City of St. Louis Park City Council That approval is given to transfer funds from the General Fund in the amounts Technology Replacement 800,000$ Municipal Building 200,000 Employee Benefit 200,000 Parks and Recreation 100,000 Total 1,300,000$ Reviewed for Administration: Adopted by the City Council December 19, 2005 City Manager Mayor Attest: City Clerk St. Louis Park Council Meeting Item: 121905 - 8c -1st Rdg Fire Department Fees Page 1 8c. 1st Reading of Fire Department Service Fees This action will establish Fire Department fees for specific Services related primarily to hazardous material incidents and fires on railroad right-of-way. Recommended Action: Motion to approve first reading of an ordinance establishing Fire Department Service Fees and set second reading for January 3, 2006. Background: For a number of years the Fire Department has been charging for some services. These services have primarily included hazardous material incidents and fires on railroad right-of-ways. Previously these charges have been determined by using industry standards for the cost of an engine company, not the City’s actual costs for equipment and personnel. Industries standards are generally rates established by State or Federal Agencies such as FEMA. With the desire of the Fire Department to expand, where possible, its ability to recover costs for calls, it became apparent that we needed to know the actual costs we were incurring. The Finance and Fire Departments have worked together to develop a fee schedule for the different types of equipment used and the personnel to operate the equipment. These fees also include the cost of backfilling the Stations so that emergency coverage for the rest of the City is maintained during the incident. The fees will be charged for hazardous material incidents and railroad right-of-way responses, as well as a basis for determining costs associated with Emergency Management (FEMA) and other responses both inside and outside of the City. Proposed Fire Department Fees The fees indicated are intended to cover the costs incurred by the Fire Department, including the fully-equipped and staffed vehicle, dispatch services, and backfill coverage. • $440 per hour for a ladder truck • $285 per hour for a full-size fire truck • $155 per hour for a rescue unit In addition, a fee of $85 per hour is proposed for the services of a Chief Officer. Supplies consumed would be billed as an additional cost as necessary. The Finance and Fire Departments will review these fees each year and update them as warranted. In future years the fees will be included as part of the annual fee report and included in Appendix A of the fee ordinance. St. Louis Park Council Meeting Item: 121905 - 8c -1st Rdg Fire Department Fees Page 2 Next Steps Ø The Finance Department and Fire Department will continue to work together to develop and refine other fees for service as warranted. Ø 2nd reading of the ordinance revision will be scheduled for January 3, 2006 Ø Fees to be effective February 1, 2006 Attachments: Ordinance Prepared By: Jean McGann, Director of Finance Approved By: Nancy Gohman, Deputy City Manager/HR Director St. Louis Park Council Meeting Item: 121905 - 8c -1st Rdg Fire Department Fees Page 3 ORDINANCE NO. ______-05 AN ORDINANCE EXPANDING FIRE PREVENTION AND PROTECTION TO INCLUDE FEES FOR FIRE DEPARTMENT SERVICES, AMENDING CHAPTER 14 OF THE ST. LOUIS PARK MUNICIPAL CODE THE CITY OF ST. LOUIS PARK DOES ORDAIN: SECTION 1. Chapter 14 of the St. Louis Park Municipal Code is hereby amended to add: Article VI. Fire Department Services Sec. 14-104. Fee for Service. Fees are established for hazardous material incidents, railroad right-of-way responses, and emergency management responses both inside and outside of the City. The fees are based on actual costs, including personnel and equipment. SECTION 2. The Fire Department service fees for the following fully-equipped and staffed vehicles are: • $440 per hour for a ladder truck • $285 per hour for a full-size fire truck • $155 per hour for a rescue unit In addition, the Fire Department will charge $85 per hour for the services of a Chief Officer. SECTION 3. The fees set in Section 2 above shall be included in Appendix A of the city code with other fees and charges called for by ordinance, and will be updated each year. SECTION 4. This Ordinance shall take effect January 23, 2006. Reviewed for Administration Adopted by the City Council December19, 2005 City Manager Mayor Attest: Approved as to Form and Execution: City Clerk City Attorney St. Louis Park Council Meeting Item: 121905 - 8d - Excelsior & Grand PUD And Plat Page 1 Comprehensive Plan: Commercial Mixed Use and High-Density Residential Zoning: “M-X” Mixed Use and “R-C” High-Density Residential Lot Size: 1.4 acres Proposed: Retail 5,100 square feet Residential 96 condominium units Proposed Building Height: 5 stories with a height that varies from 66 to 73 feet Proposed Parking: Below ground 147 spaces Street 41 spaces REQUEST: TOLD Development is requesting approval of both preliminary and final PUD and preliminary and final plat for a 5-story mixed use building located on the northwest corner of Park Commons Drive and Grand Way. The proposal includes 96 units of owner-occupied housing and approximately 5,100 gross sq. ft. of retail space. The proposed building is five-stories with 147 below-ground residential parking stalls. This is the fourth and final phase of Park Commons East, and is identified as Phase NW. 8d. Excelsior and Grand – Phase NW Preliminary and Final Plat of Park Commons East 4th Addition; Major Amendment to the Park Commons East Planned Unit Development for Final PUD approval for Phase NW. Location: 4730 Park Commons Drive Applicant: TOLD Development Case No.: 05-64-PUD and 05-65-S Recommended Action: • Motion to adopt a resolution approving the Preliminary and Final Plat of Park Commons East 4th Addition. • Motion to adopt a resolution to approve a Major Amendment to the Park Commons East PUD granting Final PUD approval for Phase NW (Excelsior & Grand Phase NW) subject to conditions recommended by staff. St. Louis Park Council Meeting Item: 121905 - 8d - Excelsior & Grand PUD And Plat Page 2 BACKGROUND In July of 2001, the City Council approved Phase I of Excelsior & Grand. Phase I has been completed with 338 residential rental units and approximately 63,000 sq. ft. of retail. When Phase I was originally approved, the overall “Excelsior and Grand” (Park Commons East) development was expected to have the following: ü Approximately 660 total housing units ü 35 owner-occupied housing units ü Approximately 82,000 sq. ft. of retail ü Approximately 37,500 sq. ft. of office All future phases in the overall development were approved in concept only, with each future phase to obtain preliminary and final PUD and plat approval prior to construction. Phase II (NE) was approved by the City Council on September 15, 2003. This phase was recently completed and contains 124 residential condominium units and 4,500 square feet of retail. Phase E is currently under construction and was approved November 15, 2004 and includes 13,000 square feet of retail space and 86 condominium units. PROCESS: A neighborhood Open House to informally review the Phase NW concept was held at the Excelsior & Grand Community Room on May 17, 2005. Feedback was generally very positive. A marketing event was held in July 13, 2005 to determine interest in the proposed condominium units. The developer reports that interest in these units is strong and he expects presales to go well. The current request is for Preliminary and Final Plat and Preliminary and Final PUD approvals for Phase NW. This requires an amendment to the Final PUD for Park Commons East, which covers all of the phases on the 15-acre site. A trash removal plan was amended into the PUD as part of the Phase E approvals. Changes to update the trash removal plan are recommended as condition of approval of the proposed PUD amendment for Phase NW. ISSUES: Ø Are the Preliminary and Final Plat and PUD proposals in conformance with the Comprehensive Plan, adopted PUD, and applicable ordinances and policies? Ø What are the likely impacts on adjacent Wolfe Lake Condominiums and other nearby residential and commercial development? Ø Will any amendments be necessary to the Planning and Redevelopment Contracts? Ø Why is the trash plan being altered? Ø What are the design criteria being recommended? Ø What are the staging plans and construction worker parking plans for Phase NW? St. Louis Park Council Meeting Item: 121905 - 8d - Excelsior & Grand PUD And Plat Page 3 Analysis of Issues: Ø Are the Preliminary and Final Plat and PUD proposals in conformance with the Comprehensive Plan, adopted PUD, and applicable ordinances and policies? Density and Land Use: The PUD for Phase NW of Park Commons East anticipated for 195 rental units and 6,000 square feet of first floor retail. Proposed are 96 condominium units with approximately 5,100 square feet of retail on the ground floor. The Comprehensive Plan and zoning map for Phase NW designates Commercial Mixed-Use for the portion abutting Grand Way and Residential High Density (RC) for the portion abutting Park Commons Drive and Wolfe Parkway. The proposed development plan is in conformance with the Comprehensive Plan Land Use Map and Zoning Map. Retail Density and Location: The proposal includes 5,100 gross square feet of retail facing Grand Way and the corner of Grand Way/Park Commons Drive. The retail parking will be accommodated along Grand Way and in the parking ramp located across Park Commons Drive. This amount of retail meets the “M-X” District requirement for at least 50% of the ground floor to be retail/service. The developer is proposing the retail space be 100% retail. The developer was hoping to provide a space for an additional restaurant, however, the grade change along Grand Way made it too difficult to provide a loading facility and manage the volume of waste generated by a restaurant. Therefore, Phase NW will not be able to accommodate a restaurant. Setbacks and Pedestrian/Bicycle/Streetscape Amenities: The landscape plan reflects sidewalks with the required minimum pedestrian clearance of 6 feet along Wolfe Parkway and Park Commons Drive. The conditions of approval will also include provisions requiring matching streetscape amenities, adequate bicycle parking in appropriate places, adequate outdoor seating areas, plant species approved by the Environmental Coordinator, and planters. Architecture: Staff believes the proposed architecture complements the buildings of all previous phases. It will be primarily brick through the first four floors, and substantially metal and glass on the fifth floor. (Please refer to the developer’s letter which is attached for your reference for a description of the architecture). The materials used will be consistent with those used elsewhere in the development, with the exception of a lighter color brick that will be the primary material used throughout the elevations. TOLD is introducing the lighter brick on this phase because the building is larger length wise than others, and they believe the lighter brick combined with the building length will soften the building’s effect. The building is five stories rather than four, however, the fifth story is stepped back to create the appearance of a four story building as perceived by the pedestrian on the street. The step back also creates a large roof-top patio area for each unit, a feature that will be a significant amenity to the top floor units and is unique to Phase NW. St. Louis Park Council Meeting Item: 121905 - 8d - Excelsior & Grand PUD And Plat Page 4 Parking: Walker Parking Consultants completed a parking study for the entire area that indicates adequate parking for the Excelsior & Grand project. The scope of the study included the planned Phase E building and the concept of Phase NW. For Phase NW, approximately one allocated below- ground parking space is proposed per bedroom, which is in keeping with the market demands. The additional retail would use the street parking located adjacent to the building on Grand Way and Park Commons Drive, and would use the parking ramp located across the street. In addition, the developer is proposing to add 41 more parking spaces along Wolfe Parkway. Ø What are the likely impacts on adjacent Wolfe Lake Condominiums and other nearby residential and commercial development? The proposed entrance and exit from the underground resident parking is directly across from Wolfe Lake Condominiums. Staff has listed as a condition of approval of the Final PUD that additional screening be provided along the west side of Wolfe Parkway across from the westerly garage access. Ø Will any amendments be necessary to the Planning and Redevelopment Contracts? The Planning Contract and EDA Redevelopment Contract will need to be amended. The Planning Contract should reflect approved number of units, construction staging, required completion of improvements prior to occupancy, allowable administrative amendments to the Phase II approvals, and prohibition of sale of garage units to non-residents. Ø Why is the trash plan being altered? Park Commons is a great success and has gone a long way to meet the goals of Vision St. Louis Park and the Comprehensive Plan to create a town center. The function of the site in terms of trash handling, however, has not been adequately addressed. Prior to approval of Phase E, dumpsters were placed in loading areas within the public right of way for daily pick up. As a result, a trash handling plan was adopted into the Final PUD for Park Commons East during the Phase E approval, which requires trash to be staged and picked up at specific locations. The current trash plan is illustrated in the attached trash plan, and requires the dumpsters from Phase I, Building A & C to be staged for pick-up at Phase NW; Phase I, Building F to be staged and picked up at the Phase E trash room; trash from Phase NE was to be staged just outside the entrance to the underground parking; Phase NW is to be staged from it’s own trash rooms; and there were to be no dumpsters located within the Park Commons Drive right-of-way. St. Louis Park Council Meeting Item: 121905 - 8d - Excelsior & Grand PUD And Plat Page 5 The staging area of Phase NE is unworkable for the haulers due to the steep grade leading to the staging area, also the trash room of Phase E is too small to accommodate the dumpsters from Building F. Therefore, the trash plan is proposed to be amended so that the five dumpsters from Phase NE would be kept in a trash enclosure to be constructed within the boulevard area of the northeast portion of Wolfe Parkway. The six dumpsters from Building C would be kept in a second trash enclosure to be constructed in the boulevard area of Wolfe Parkway at the northwest corner of Wolfe Parkway and Park Commons Drive just west of Phase NW. The language would be clarified to state that, with the exception of the two trash enclosures, no dumpsters are to be staged for pick-up within the right-of-way of any road. This would require the two dumpsters each from both Building A and Building F to be kept on private property. Building F would have the option of staging the dumpsters within the docking area of Phase E or against the east wall of building F, and Building A would have to stage the dumpsters against the west wall of Building A. With these amendments, staff believes the trash plan is sufficient to provide a workable plan and infrastructure needed to effectively manage the trash in a discrete and efficient manner while maintaining the aesthetic and walkable atmosphere desired throughout the development. Ø What are the design criteria being recommended? The intent of the Excelsior & Grand development is that it would create a walkable downtown area for St. Louis Park. Part of this includes the ability and desirability to walk along the sidewalks in a safe and pleasant manner which includes the ability to “window shop”, or see into the stores. The Pier 1 store has approximately 200 feet of frontage on Excelsior Boulevard and most of the windows are frosted, preventing a pedestrian from looking into the store. Without design guidelines requiring window transparency, the frosted glass look could be extended by other tenants. For example, the proposed commercial tenant of Phase E is intending to block views into the store so it can place shelves against the windows along Excelsior Boulevard. This tenant will have approximately 160 feet of frontage on Excelsior Boulevard, and most of the windows will be blocked. Fortunately, TOLD and this tenant have recently come to an agreement to provide displays in the windows, rather than simply coating them in a manner similar to Pier 1. The displays will be limited to photos, art, text, and anything else that can fit within an 8 inch space between the windows and the back side of shelving to be placed against the windows. St. Louis Park Council Meeting Item: 121905 - 8d - Excelsior & Grand PUD And Plat Page 6 Staff believes a design criteria is required to preserve the transparency of the windows and to establish guidelines for other activities and improvements that effect the character of the development, such as the use of the sidewalks for display of merchandise and design criteria for awnings and canopies. These criteria would preserve the pedestrian oriented character which is the intent of the Excelsior & Grand development while at the same time maintaining an atmosphere where the retailers can thrive in a successful environment. The criteria are written in such a way that both Pier 1 and the Phase E tenant can continue to operate as is, however, any future tenant that occupies their space would have to come into compliance with the design criteria. Ø What are the staging plans and construction worker parking plans for Phase NW? Construction staging and construction worker parking becomes more difficult as development progresses. Discussions about construction staging are still to be worked out, and a plan acceptable to the City has been made a condition of approval. It is anticipated that that portion of Wolfe Parkway that wraps around Phase NW will be closed and used as staging. The top levels of the ramp will continue to be reserved for contractor parking. Public Process: The Council discussed the preliminary proposals at it’s May 9, 2005 study session, and the Planning Commission conducted a public hearing at the November 2, 2005 meeting. Two people from the public spoke at the public hearing. One person commented on the height of the building stating at first he was concerned about the 5 stories, but liked the fact that the fifth story was stepped back to maintain the appearance of a 4 story building. A second person spoke about how trash containers should not be located in such a manner as to limit movement of vehicles, and she spoke about retail in the development. The comments are included in more detail in the attached minutes. Recommendation: The Planning Commission and Staff recommend the following: 1. Approval of the attached Resolution granting approval of the Preliminary and Final Plat of Park Commons East 4th Addition; and 2. Approval of the attached Resolution granting approval of a Major Amendment to the Park Commons East PUD granting Final PUD approval for Park Commons East (Excelsior & Grand) Phase NW subject to conditions outlined in the Resolution. Attachments: Ø TOLD’s application Ø Proposed Final Plat and PUD Exhibits Ø Trash Enclosure Exhibits Ø Recommended Resolutions Prepared By: Gary Morrison, Assistant Zoning Administrator Reviewed by: Meg McMonigal, Planning & Zoning Supervisor Approved by: Nancy Gohman, Deputy City Manager/HR Director St. Louis Park Council Meeting Item: 121905 - 8d - Excelsior & Grand PUD And Plat Page 7 RESOLUTION NO. 05-182 RESOLUTION GIVING APPROVAL FOR PRELIMINARY AND FINAL PLAT OF PARK COMMONS EAST 4TH ADDITION BE IT RESOLVED BY the City Council of St. Louis Park: Findings 1. Excelsior & Grand III LLC C/O, and the City of St. Louis Park EDA, owners and subdividers of the land proposed to be platted as Park Commons East 4th Addition have submitted an application for approval of preliminary and final plat of said subdivision in the manner required for platting of land under the St. Louis Park Ordinance Code, and all proceedings have been duly had thereunder. 2. The proposed preliminary and final plat has been found to be in all respects consistent with the City Plan and the regulations and requirements of the laws of the State of Minnesota and the ordinances of the City of St. Louis Park. 3. The proposed preliminary and final plat is situated upon the following described lands in Hennepin County, Minnesota, Outlot 1, Park Commons East, Hennepin County, Minnesota Conclusion 1. The proposed preliminary and final plat of Park Commons East 4th Addition is hereby approved and accepted by the City as being in accord and conformity with all ordinances, City plans and regulations of the City of St. Louis Park and the laws of the State of Minnesota, provided, however, that this approval is made subject to the opinion of the City Attorney and Certification by the City Clerk. The developer or owner shall pay an administrative fee of $750 per violation of any condition of this approval. 2. The City Clerk is hereby directed to supply two certified copies of this Resolution to the above-named owner and subdivider, who is the applicant herein. 3. The Mayor and City Manager are hereby authorized to execute all contracts required herein, and the City Clerk is hereby directed to execute the certificate of approval on behalf of the City Council upon the said plat when all of the conditions set forth in Paragraph No. 1 above and the St. Louis Park Ordinance Code have been fulfilled. St. Louis Park Council Meeting Item: 121905 - 8d - Excelsior & Grand PUD And Plat Page 8 4. Such execution of the certificate upon said plat by the City Clerk, as required under Section 26-123(1)j of the St. Louis Park Ordinance Code, shall be conclusive showing of proper compliance therewith by the subdivider and City officials charged with duties above described and shall entitle such plat to be placed on record forthwith without further formality. The City Clerk is instructed to record certified copies of this resolution in the Office of the Hennepin County Register of Deeds or Registrar of Titles. Reviewed for Administration: Adopted by the City Council December 19, 2005 City Manager Mayor Attest: City Clerk St. Louis Park Council Meeting Item: 121905 - 8d - Excelsior & Grand PUD And Plat Page 9 RESOLUTION NO. 05-183 Amends and Restates Resolutions No. 01-065, 01-091, 01-146, 03-096, 03-126, 04-033, and 04-112 A RESOLUTION AMENDING AND RESTATING RESOLUTION 04-112 ADOPTED ON NOVEMBER 15, 2004 APPROVING AN AMENDMENT TO A FINAL PLANNED UNIT DEVELOPMENT (PUD) UNDER SECTION 36-367 OF THE ST. LOUIS PARK ORDINANCE CODE RELATING TO ZONING FOR PROPERTY ZONED “M-X” MIXED USE AND “R-C” HIGH DENSITY RESIDENTIAL GRANTING FINAL PUD APPROVAL FOR PHASE NW (EXCELSIOR AND GRAND PHASE IV) WHEREAS, Excelsior & Grand III, LLC has made application to the City Council for a major amendment to a Final Planned Unit Development (Final PUD) under Section 36-367 of the St. Louis Park Ordinance Code to grant final Planned Unit Development approval for Phase NW (Excelsior and Grand Phase IV) for property within a M-X Mixed Use and R-C High Density Residential Zoning District having the following legal description: Outlot I, Park Commons East, Hennepin County, Minnesota WHEREAS, the City Council has considered the advice and recommendation of the Planning Commission (Case No. 05-64-PUD) and the effect of the proposed Final PUD on the health, safety, and welfare of the occupants of the surrounding lands, existing and anticipated traffic conditions and the effect on values of properties in the surrounding area, the effect of the use on the Comprehensive Plan, and compliance with the intent of the Zoning Ordinance to permit 5,100 square feet of retail and 96 condominium units of owner-occupied housing in a 5- story building with underground parking WHEREAS, the City Council has determined that the amendment to the PUD will not be detrimental to the health, safety, or general welfare of the community nor with certain contemplated traffic improvements will it cause serious traffic congestion nor hazards, nor will it seriously depreciate surrounding property values. The Council has also determined that the proposed Final PUD is in harmony with the general purpose and intent of the Zoning Ordinance and the Comprehensive Plan and that the requested modifications comply with the requirements of Section 36-367(b)(5) and 36-266(16). WHEREAS, the City Council approved the Preliminary PUD for the overall Park Commons East redevelopment on June 4, 2001, Resolution No. 01-049; and WHEREAS, the City Council approved the Final PUD for Park Commons East on July 23, 2001, Resolution 01-065, and St. Louis Park Council Meeting Item: 121905 - 8d - Excelsior & Grand PUD And Plat Page 10 WHEREAS, the City Council adopted Resolution No. 01-091 on September 4, 2001 approving an amendment to the approved Final PUD to change the name of the north-south Town Green streets to Grand Way and separate the plat and PUD resolutions, and WHEREAS, the City Council adopted Resolution No. 01-146 on December 17, 2001 approving an amendment to the approved Final PUD to allow issuance of building permits for work through January 15, 2002 prior to recording of the Park Commons East plat, easement and planning contract, and WHEREAS, the Final PUD approval for Park Commons East granted concept approval only for future phases, requiring such phases to obtain subsequent Preliminary and Final PUD approval, and WHEREAS, the City Council approved the Preliminary PUD for Phase NE (Excelsior and Grand Phase II) on August 4, 2003, Resolution No. 03-096; and WHEREAS, an application for approval of a Final Planned Unit Development (PUD) was accepted as substantially complete on August 28, 2003 from the applicant, and WHEREAS, the City Council approved the Final PUD for Phase NE (Excelsior and Grand Phase II) on September 15, 2003, Resolution No. 03-126, and WHEREAS, the City Council approved the amendment to the Final PUD for Phase NE (Excelsior and Grand Phase II) on March 1, 2004, Resolution No. 04-033, and WHEREAS, the City Council approved the amendment to the Final PUD for Phase E (Excelsior and Grand Phase III) on November 15, 2004, Resolution No. 04-112, and WHEREAS, an application for approval of Final PUD for Phase NW (Excelsior and Grand Phase IV) was accepted as substantially complete on September 23, 2005, from the applicant, and WHEREAS, the Planning Commission recommended approval of the Final PUD for Phase NW (Excelsior and Grand Phase IV) on a 4-2 vote with four members present voting in the affirmative and two member present voting opposed, and WHEREAS, the City Council considered the staff reports, Planning Commission minutes and testimony of those appearing at the public hearing or otherwise including comments in the record of decision, and WHEREAS, it is the intent of this resolution to continue and restate the conditions of the permit granted by Resolution Nos. 01-065, 01-091, 01-146, 03-096, 03-126, 04-033 and 04-112 to add the amendment now required, and to consolidate all conditions applicable to the subject property in this resolution, and St. Louis Park Council Meeting Item: 121905 - 8d - Excelsior & Grand PUD And Plat Page 11 WHEREAS, the contents of Planning Case Files 01-07-PUD, 03-19-PUD, 04-03-PUD, 04-36-PUD and 05-64-PUD are hereby entered into and made part of the public hearing and the record of decision for this case. CONCLUSION NOW THEREFORE BE IT RESOLVED that Resolution No. 04-112 (document not filed) is hereby restated and amended by this resolution which continues and amends a Final Planned Unit Development to the subject property for the purpose of granting Final PUD approval for Phase NW (Excelsior & Grand Phase IV) permitting 5,100 square feet of retail and 96 units of owner-occupied housing in a 5-story building with underground parking for property located within a M-X Mixed Use and R-C High Density Residential Zoning District at the location described above based on the following conditions: (CONDITIONS FOR EXCELSIOR & GRAND PHASE I) 1. The site shall be developed, used, and maintained in conformance with the Final PUD official exhibits, which may be amended according to the provisions of the planning contract between TOLD and the City of St. Louis Park and to meet the conditions of Final PUD approval. a. to address the recommendations of the Public Works Department dated 7/3/01. b. to address the Plumbing Inspector’s comments dated 7/2/01. c. to preserve the trees on the north side of 38th Street (proposed Grand Place) in front of Westmoreland Hills condominiums. (38th Street changed to Park Commons Drive by Ordinance No. 2211-01 adopted on October 3, 2001.) d. to increase the length of the median at Market Avenue and Excelsior Boulevard per the recommendation of the traffic consultant. (Market Avenue changed to Grand Way per Final Plat and Condition No. 1, adopted on September 4, 2001.) e. to meet minimum tree replacement ordinance requirements (that are not related to a cash in lieu payment). f. to coordinate town green and public streetscape improvements with Excelsior Boulevard streetscape plans and input from the selected artist consultant. g. to coordinate park edge improvements with amphitheater plans. h. to address comments from Metro Transit regarding transit locations and improvements. i. to address conditions of required permits from the Watershed District, MPCA, and City. j. to show the names of streets as approved on the Final Plat and current names of 38th/39th Street, which may be changed later by ordinance. (38th/39th Street changed to Park Commons Drive by Ordinance No. 2211-01 adopted on October 3, 2001.) k. to address final construction changes to the Phase I Official Exhibits and to adopt Final PUD Official Exhibits for Phase II in accordance with condition 14 (adopted on September 15, 2003). St. Louis Park Council Meeting Item: 121905 - 8d - Excelsior & Grand PUD And Plat Page 12 2. The Park Commons East Phase 1 Final PUD approval includes code deviations to allow daycare as a retail/service use, right-of-way and street designs, open space, FAR/GFAR, building setbacks, bufferyards, and off-street parking as shown on the official exhibits based upon a finding of general consistency with the approved Redevelopment Plan and subject to any other conditions of final approval. 3. Outdoor seating is permitted in association with restaurants and food service uses subject to any conditions of Final PUD approval for that phase, easement provisions, health codes, and approval of specific outdoor seating plans by the Zoning Administrator. 4. All parking shall be open to the general public at all times except as follows: on-street parking may be restricted by the City, below-ground parking may be restricted to building residents, and a plan for valet parking may be approved by the City. 5. If parking is deemed inadequate by the City based upon evidence of parking in fire lanes, drive aisles or other inappropriate areas, the developer shall be required to rectify the situation in accordance with the provisions of the planning contract. 6. Proposed “Grand Place” north of 38th/39th may be closed for events as approved by the City. (Street names changed to Grand Way and Park Commons Drive per Final Plat and Condition No. 1 adopted on September 4, 2001.) 7. The developer is required to comply with all provisions of the planning contract, development agreement with the EDA, Metropolitan Council LCDA grant agreement(s), MPCA and Watershed District approvals. 8. Specific responsibility for financing and construction of the following required Phase 1 improvements shall be addressed by the Planning Contract: a. construction of all streets, on-street parking, and utilities, within the entire PUD area. b. completion of streetscape improvements, including bicycle and transit amenities, adjacent to all Phase 1 properties and Wolfe Park. c. construction of temporary bituminous sidewalks in accordance with a plan approved by the Zoning Administrator. d. regrading of the southern portion of Wolfe Park, relocation/reconstruction of the existing trail, and construction of the park edge road, parking, approved hard surface sidewalk between parking and trail, plantings and streetscape subject to approved final plans. e. construction of the entire town green from Excelsior Boulevard to Wolfe Park in accordance with approved final town green plans with temporary sidewalks north of 38th/39th until permanent sidewalks/streetscape are completed during construction of each future phase. (38th/39th Street changed to Park Commons Drive per Ordinance No. 2211-01 adopted on October 3, 2001.) f. construction of the Phase 1 public parking ramps in accordance with approved final plans. g. construction of the police substation and public restrooms in accordance with approved final plans. h. construction of traffic improvements and installation of traffic control and directional signage in accordance with approved final plans. i. construction of 18 project-based two-bedroom Section 8 units in accordance with public housing agreements. St. Louis Park Council Meeting Item: 121905 - 8d - Excelsior & Grand PUD And Plat Page 13 9. Prior to any site work other than demolition for Park Commons East Phase One: a. the Final Plat and PUD for Phase 1 shall be approved. b. final construction documents for public infrastructure (street, underground utilities; not streetscape) improvements shall be approved by the Public Works Director. c. required erosion control permits, utility permits, and other required permits shall be obtained from the City, Hennepin County, Watershed District and any other required agencies. d. the MPCA shall be informed of the plans to regrade the southern portion of Wolfe Park and approval shall be received prior to regrading the park, if needed. e. a final tree preservation plan shall be approved by the Zoning Administrator and any necessary construction fencing shall be in place. f. plans for maintaining access to existing private condominium parking during construction shall be approved by Public Works and the affected property owners, if temporary construction easements are necessary. 10. Prior to issuance of any building permits, which may impose additional conditions: a. Evidence of recording the final plat, easements, and planning contract shall be submitted to the City ,except that Section 14.912F of the St. Louis Park Ordinance Code and the recording requirements are waived to allow, prior to recording of the plat, easement and planning contract, the issuance of building permits authorizing work through and including January 15, 2002. b. the Indirect Source Permit shall be approved by the MPCA, if necessary. c. A lighting and photometric plan shall be approved by the Zoning Administrator. d. An irrigation plan shall be approved by the Zoning Administrator. e. Exterior building material/colors shall be approved by the Zoning Administrator. f. Final plans for a police substation and adjacent public restrooms shall be approved by the Police Chief and Community Development Director. 11. Prior to installation of any private signage, sign permits shall be approved by the Zoning Administrator. 12. Future phases of the Final Plat and PUD are approved in general concept only and subject to the following conditions of approval: a. All future phases are required to apply for subsequent Preliminary and Final Plat and PUD approval for those phases; such Preliminary and Final approval may be considered concurrently subject to Code and any pertinent provisions of the development agreements. b. Curb cuts, permanent sidewalks and streetscape adjacent to future phases shall be completed during construction of each future phase. c. A minimum of 35 stacked townhomes for owner-occupants shall be included in Future Phase E and/or Future Phase NE; additional condominiums and changes to proposed building height may be approved for Future Phase NE based upon recommendations of a market study. (Amended by Condition No. 14 on August 4, 2003 and September 15, 2003.) St. Louis Park Council Meeting Item: 121905 - 8d - Excelsior & Grand PUD And Plat Page 14 d. The City may consider proposals for permanent use of Future Phase W, subject to the provisions in the existing development contract between TOLD, EDA and City, either on its own or combined with potential redevelopment of the property to the west. However, the City may retain the Future Phase W property indefinitely and use it for such uses as the City may deem appropriate, including potential transit and parking uses. e. Variances to the 80 feet minimum lot width of the “R-C” District may be approved subject to Preliminary and Final Plat and PUD approvals. f. Allowable Code deviations are subject to the approved Redevelopment Plan and future Preliminary and Final PUD approvals. g. Approval for construction of future phases is contingent upon provision of adequate parking, which may include interim parking as approved by the City, and must include 75 weekday and 200 evening/weekend parking spaces, in excess of other needs of the development, for town green and Wolfe Park uses. 13. Prior to execution of the Final Plat for each subsequent phase: a. preliminary and final plat/PUD approval shall be obtained for that phase. b. the existing development agreement shall be amended as necessary and a new planning contract shall be executed between the developer and City/EDA. c. public sidewalk easements shall be approved by the City Attorney for those areas of private development lots between the public street and building setback. (CONDITIONS FOR EXCELSIOR & GRAND PHASE II OR NE) 14. The Planned Unit Development shall be amended on September 15, 2003 to incorporate all of the preceding conditions and to grant Final PUD approval to Park Commons East Phase NE (Excelsior and Grand Phase II) subject to the following conditions: a. The site shall be developed, used and maintained in conformance with the Phase II Final PUD official exhibits, which shall be amended prior to signing to meet the following conditions: i. Double fixture lights matching Phase I shall be added as necessary to meet light levels as required by the Public Works Director. Black light poles shall be used along Grand Way and green poles elsewhere to match Phase I. ii. All plans shall reflect additional parking on the east side of Wolfe Parkway as approved by the Zoning Administrator and Public Works Director. iii. Plant species east of Wolfe Parkway shall be approved by the Park & Recreation Director. (Amended by Condition 15 on March 1, 2004) b. There shall be a minimum of approximately 4,500 square feet of gross leasable ground floor retail/service space in the “M-X” District portion of Phase II. c. There shall be a maximum of 120 condominium units and such development shall include individual exterior entrances for ground floor units along Park Commons Drive and Wolfe Parkway and a minimum of four two-story units. (Amended by Condition 15 on March 1, 2004) St. Louis Park Council Meeting Item: 121905 - 8d - Excelsior & Grand PUD And Plat Page 15 d. Parking shall comply with the following: i. There shall be a minimum of approximately 177 below-ground parking spaces for residents in Phase II. ii. Temporary public parking on future phase NW is required to be completed and available from May 15, 2003 until all permanent public parking is restored and available. Future phase NW shall not be used for construction worker parking, construction staging or construction trailers. Alternate parking solutions will be required if adequate public parking is not maintained at all times in accordance with PUD, redevelopment agreement and planning contract requirements. iii. Construction worker parking and screening shall be installed on Future Phase E in accordance with final plans approved by the Zoning Administrator; construction worker parking shall be installed and available prior to the start of Phase II construction or an alternate interim plan approved by the Zoning Administrator. Future Phase E shall not be used for construction staging or construction trailers. Approval of the temporary gravel surface is contingent upon the developer maintaining adequate dust control. e. Prior to starting any site work, the following conditions shall be met: i The City Attorney shall approve the association documents and other final plat documents, which shall be signed as required. ii. The Planning and EDA Redevelopment Contracts shall be amended to reflect all changes as necessary to address the Phase II approvals and to address, at a minimum, changes in the approved number of condominium units, construction staging/routes/hours/duration, required completion of improvements prior to occupancy and to address town green/park use, allowable administrative amendments, revised construction commencement/completion dates, prevention of garage space sales and rental to non-residents, and consistency between documents as required and approved by the City Attorney. iii. A new sidewalk easement shall be approved by the City Attorney and recorded against the Phase II property, and as-built Phase I drawings shall be recorded per the executed Phase I sidewalk easement. iv. Phase I and Phase II official exhibits shall be amended as required and signed by the City and applicant. v. Construction worker parking and screening shall be installed and available for use or an alternate interim plan approved by the Zoning Administrator. Approval of the temporary gravel surface on Future Phase E is contingent upon the developer maintaining adequate dust control f. The hours of Phase II construction shall be limited as follows: All outdoor activity and loud equipment operation shall be limited to the hours between 7:00 am and 5:00 pm weekdays and 9:00 am and 5:00 pm on holidays; no such activity shall take place on weekends. Indoor construction activity that does not involve loud equipment shall be limited to the hours between 7:00 am and 10:00 pm on weekdays and 9:00 am and 10:00 pm on weekends and holidays. The Zoning Administrator may approve outdoor construction beyond 5:00 pm weekdays and on weekends provided the developer requests such approval at least 24 hours in St. Louis Park Council Meeting Item: 121905 - 8d - Excelsior & Grand PUD And Plat Page 16 advance and, if approved, the developer is required to provide notice to neighbor as determined by the Zoning Administrator. Construction activity shall comply with all City ordinances at all times. g. Prior to issuance of any Phase II building permits, which may impose additional conditions, the following conditions shall be met: i. color samples of all Phase II materials not used on Phase I, including a color sample of the Phase II crown material, shall be submitted and approved by the Zoning Administrator. ii. a final lighting plan shall be approved by the Public Works Director and Zoning Administrator. h. The developer shall pay an administrative fine of $750 per violation of any condition of this approval. 15. The Planned Unit Development shall be amended on March 1, 2004 to allow the conversion of four two-story units to eight one-story units for a total of 124 Phase NE (Excelsior & Grand Phase II) condominium units and to incorporate all of the preceding conditions and add the following conditions: a. Retention of the individual exterior entrances for ground floor units along Park Commons Drive and Wolfe Parkway. b. Retention of 177 below-ground resident spaces in Phase II. c. Execution of amendments to the Planning Contract, EDA Redevelopment Contract, and any other documents that may require amendment as determined by the City and EDA Attorneys. Such amendments may be required to be executed prior to issuance of a building permit addendum for the condominium unit changes. d. Adherence to all other previously approved PUD and plat conditions. (CONDITIONS FOR PHASE E) 16. The Planned Unit Development shall be amended on September 20, 2004 to incorporate all of the preceding conditions and to grant Final PUD approval to Park Commons East Phase E (Excelsior and Grand Phase III) subject to the following conditions: a. The site shall be developed, used and maintained in conformance with the Phase III Final PUD official exhibits, which shall be amended prior to signing to meet the following conditions. i. Double fixture lights with green poles matching Phase I shall be added as necessary to meet light levels as required by the Public Works Director. ii. A supplemental drawing showing trash enclosures for Phase I buildings A, D, and F shall be submitted and approved by the City. iii. A loading dock area designed so that when delivery trucks are present there is a 6-foot clear sidewalk along Meridian Lane. iv. Resolution of screening issues between the proposed entrance on Park Commons Drive and Westmoreland Hills Condominium Association. v. A plan approved by Public Works to reinforce those curbs impacted by delivery trucks along Meridian Lane and Park Commons Drive. vi. Updated drawings that indicate planting box sizes and locations, adequate bicycle parking in appropriate places, adequate outdoor seating areas. St. Louis Park Council Meeting Item: 121905 - 8d - Excelsior & Grand PUD And Plat Page 17 vii. Sign details for the Park Commons sign to be located at the corner of Monterey Drive and Excelsior Boulevard shall be submitted and approved by the Planning and Zoning Supervisor. b. There shall be a minimum of approximately 13,000 square feet of gross leasable ground floor retail/service space in the “M-X” District portion of Phase E. c. There shall be a maximum of 86 condominium units and such development shall include individual exterior entrances for ground floor units along Meridian Lane. d. Parking shall comply with the following: i. There shall be a minimum of 109 below-ground residential parking stalls in Phase E. ii. There shall be a minimum of 58 off-street, on-grade parking spaces to accommodate the retail portion of Phase E. iii. Future Phase NW shall not be used for construction worker parking, construction staging or construction trailers. Alternative parking solutions will be required if adequate public parking is not maintained at all times in accordance with PUD, redevelopment agreement and planning contract requirements. iv. Construction worker parking shall be accommodated on the upper level of the Phase I parking ramp. e. Trash handling for Phase I shall be as follows: i. Phase I, Building F trash will be staged and picked up from Phase E loading dock or otherwise accommodated in a manner approved by the Director of Inspections and Community Developer Director. ii. A trash corral shall be constructed in west of Phase NW to accommodate all trash staging and removal generated from Phase I Building C and Phase NW. No trash receptacle staging will be allowed within the Park Commons Drive public right of way. iii. Phase I, Building D trash will be staged and removed from the Building D truck dock. A brick wall will be constructed to screen outdoor storage of trash receptacles from the public view. iv. Phase I, Building A trash will be staged and picked up at the trash room located at Phase I, Building A from the Phase NW trash corral or otherwise accommodated in a manner approved by the Director of Inspections and Community Developer Director. v. Phase NE trash will be staged and picked up from a trash corral to be constructed on the northeast side of Wolfe Parkway. vi. With the exception of the two trash enclosures to be constructed as part of the Phase NW approval, no trash receptacle staging and pick up will be allowed within any public right-of-way. (Amended December 19, 2005) f. Prior to starting any site work, the following conditions shall be met: i. The City Attorney shall approve the association documents and other final plat documents, which shall be signed as required. St. Louis Park Council Meeting Item: 121905 - 8d - Excelsior & Grand PUD And Plat Page 18 ii. The Planning and EDA Redevelopment Contracts shall be amended to reflect all changes as necessary to address the Phase E approvals and to address, at a minimum, construction staging/routes/hours/duration, required completion of improvements prior to occupancy, allowable administrative amendments, revised construction commencement/ completion dates, prevention of garage space sales to non-residents, and consistency between documents as required by the City Attorney. iii. Phase I official exhibits shall be amended as required and signed by the City and applicant. iv. A copy of permit from Minnehaha Creek Watershed District must be provided. v. An erosion control permit must be secured from the City. g. The hours of Phase E construction shall be limited as follows: All outdoor activity and loud equipment operation shall be limited to the hours between 7:00 am and 5:00 pm weekdays and 9:00 am and 5:00 pm on holidays; no such activity shall take place on weekends. Indoor construction activity that does not involve loud equipment shall be limited to the hours between 7:00 am and 10:00 pm on weekdays and 9:00 am and 10:00 pm on weekends and holidays. h. Prior to issuance of any Phase E building permits, which may impose additional conditions, color samples of all Phase E materials not used on Phase I, shall be submitted and approved by the Planning and Zoning Supervisor. i. The developer shall pay an administrative fine of $750 per violation of any condition of this approval. (CONDITIONS FOR PHASE NW) 17. The Planned Unit Development shall be amended on December 19, 2005 to incorporate all of the preceding conditions as amended and to grant Final PUD approval to Park Commons East Phase NW subject to the following conditions: a. The site shall be developed, used and maintained in conformance with the Phase NW Final PUD official exhibits, which shall be amended prior to signing to meet the following conditions: i. The Public Works Director shall approve the lighting plan. ii. The developer shall submit a full-scale copy and a reduced copy of the Phase NW Staging and Site Utilization Plan. iii. Detailed plans for construction worker parking shall be submitted and approved by the Planning and Zoning Supervisor. iv. The City Attorney shall approve the association documents and other Final Plat documents. v. Landscape Plan updates and landscape details consistent with existing details used throughout the Excelsior & Grand development shall be submitted that indicate updated planting box sizes and locations, adequate bicycle parking in appropriate places, adequate outdoor seating areas, plant species acceptable to the Environmental Coordinator. vi. Additional screening is to be provided between the proposed garage entrance onto Wolfe Parkway and Wolfe Lake Condominiums. St. Louis Park Council Meeting Item: 121905 - 8d - Excelsior & Grand PUD And Plat Page 19 b. There shall be a minimum of 5,100 square feet of gross leasable ground floor retail/service space in the “M-X” District portion of Phase NW. c. There shall be a maximum of 96 condominium units. d. There shall be a minimum of 147 below-ground residential parking stalls in Phase NW. e. The balcony of the 5th floor units shall remain open. No accessory structures, whether permanent or temporary in nature, shall be allowed. f. The following façade design guidelines shall be applicable to all ground floor, non-residential facades located in all phases of the Excelsior & Grand development. i. Façade Transparency. Windows shall meet the following requirements: (a) For street-facing facades, no more than 10% of the total window area shall be glass block, mirrored, spandrel, frosted or other opaque glass. Also, no more than 10% of the total window area shall be signage that is applied to the inside or outside surface of the window. The remaining 90% of window and door area shall be clear or slightly tinted glass, allowing views into and out of the interior. (b) Visibility into the space shall be maintained for a minimum of 3 feet. This requirement shall not prohibit the display of merchandise. Display windows may be used to meet the transparency requirement. ii. Awnings. (a) Awnings and canopies must be constructed of heavy canvas fabric, metal and/or glass. Plastic and vinyl awnings are prohibited. (b) Backlit awnings and canopies are prohibited. iii. Use of Sidewalk. A business may use that portion of a sidewalk extending a maximum of 5-feet from the building wall, provided an 8 foot minimum horizontal clearance is maintained along Excelsior Boulevard and Monterey Avenue and a 6-foot minimum horizontal clearance along all other streets is maintained between obstructions (trees, light poles, etc) on the sidewalk for the following purposes: (a) Display of merchandise provided it does not exceed more than 100 square feet per business. (b) Benches, planters, ornaments and art. (c) Signage, as permitted in the zoning ordinance. (d) Outdoor dining areas may exceed the 5 foot limit as further regulated by the zoning ordinance and planned unit development agreement. g. The canopy extending from the main entrance of the building to Park Commons Drive shall not extend into the public right-of-way. St. Louis Park Council Meeting Item: 121905 - 8d - Excelsior & Grand PUD And Plat Page 20 h. Prior to starting any site work, the following conditions shall be met: i. The Planning and EDA Redevelopment Contracts shall be amended to reflect all changes as necessary to address the Phase NW approvals and to address, at a minimum, construction staging/routes/hours/duration, required completion of improvements prior to occupancy, allowable administrative amendments, revised construction commencement/completion dates, prevention of garage space sales to non- residents, and consistency between documents as required by the City Attorney. ii. A copy of permit from Minnehaha Creek Watershed District must be provided. iii. An erosion control permit must be secured from the City. i. The hours of Phase NW construction shall be limited as follows: All outdoor activity and loud equipment operation shall be limited to the hours between 7:00 am and 5:00 pm weekdays and 9:00 am and 5:00 pm on holidays; no such activity shall take place on weekends. Indoor construction activity that does not involve loud equipment shall be limited to the hours between 7:00 am and 10:00 pm on weekdays and 9:00 am and 10:00 pm on weekends and holidays. j. Prior to issuance of any Phase NW building permits, which may impose additional conditions, color samples of all Phase NW materials not used on any of the prior phases, shall be submitted and approved by the Zoning Administrator. k. The developer shall pay an administrative fine of $750 per violation of any condition of this approval. Assent form and official exhibits must be signed by applicant (or applicant and owner if applicant is different from owner) prior to issuance of building permit. Approval of a Building Permit, which may impose additional requirements. The City Clerk is instructed to record certified copies of this resolution in the Office of the Hennepin County Register of Deeds of Registrar of Titles as the case may be. Reviewed for Administration: Adopted by the City Council December 19, 2005 City Manager Mayor Attest: __________________________________ City Clerk St. Louis Park Council Meeting Item: 121905 - 8e - Cambridge - Comp Plan & Rezone Page 1 Comprehensive Plan Designation: Industrial Request: Medium Density Residential Current Zoning: IG – General Industrial Request: R-3 – Two Family Residential Parcel Size: 18,600 square feet Current Land Use: 2 – two family homes Proposed Land Use: 2 – two family homes Request: Julie Murphy is requesting amendments to the Comprehensive Plan and Official Zoning Map for two existing duplexes. The property has two existing structures; and each structure has two dwelling units for a total of 4 dwelling units on the property. The property is approximately .42 acres in size and is located on the north side of Cambridge Street, just west of the Soo Line Railroad (See attached location map). The homes are legal non-conforming uses which means they were permitted by the zoning code at the time the structures were built and occupied, then at some time after the use was approved, the zoning code was changed to no longer allow the use. As a legally non-conforming use, the use is allowed to operate as it is, but it cannot expand or intensify in any manner. Process: The public hearing was opened at the October 5, 2005 Planning Commission meeting. At the request of the applicant, the hearing was continued to October 19th, and again continued to November 16th. The continuances were requested so she could gather information for the application. 8e. Request of Julie L. Murphy for a Comprehensive Plan Map Amendment from Industrial to Medium Density Residential; and a Zoning Map Amendment from General Industrial (IG) to Two Family Residential (R-3) Location: 6300-6312 Cambridge Street Applicant: Julie L. Murphy Case No.: 05-50-CP and 05-51-Z Recommended Action: • Motion to adopt a resolution to deny the request for a Comprehensive Plan amendment to change the land use designation from Industrial to Medium Density Residential. • Motion to adopt a resolution to deny the request for a zoning map amendment to change the zoning designation from IG – General Industrial to R3 – Two Family Residential. St. Louis Park Council Meeting Item: 121905 - 8e - Cambridge - Comp Plan & Rezone Page 2 The 120 day review period for this application was extended by the applicant, and will end on December 23, 2005. The City Council will need to act on this application at the December 19th meeting to meet the review deadline. History of Site: The structures were built in 1898. The earliest zoning map we have on record dates to 1932, and this map shows the property zoned “Heavy Industrial” with a density overlay of “C”. The Industrial District at that time was all inclusive, meaning it allowed all uses with the exception of those listed. The list of prohibited uses was short and did not prohibit residential. The overlay density “C” allowed residential at a density of one unit per 2,400 square feet. It appears that the 1932 zoning ordinance permitted the residential use as it exists today. The 1949, 1959, 1987 & the current zoning map all show the property zoned Industrial. It isn’t until the 1959 zoning ordinance that residential uses were no longer allowed within the Industrial Districts, therefore it appears that the subject property has been legally non-conforming since 1959. Non-conforming uses: Zoning The city’s ordinance states that all legally non-conforming structures may continue to be occupied and maintained, but may not be expanded or intensified in any manner. It also states that if they are damaged beyond 60% of the assessor’s market value they must be removed, or made to conform within 12 months of the date of damage. In 2004, the state passed a law allowing any legally non-conforming structure to be replaced in its entirety within one year of it being damaged or removed. This law supersedes city ordinance, and means a person may remove and replace a damaged or destroyed legally non-conforming structure in its entirety and to the same dimensions existing before the structure was removed or damaged. The city records show that the property was purchased by Julie Murphy in June of 2002 at a sale price of $445,000. She is now trying to sell the property and believes that the legally non- conforming classification is preventing her from selling the property. Neighborhood land use and zoning The property is guided Industrial and zoned General Industrial. The properties to the north, west and south are also guided Industrial and zoned General Industrial. The Soo Line Railroad runs along the east property line and the property to the east, on the other side of the railroad track is guided Medium Density Residential and is zoned R-3 Two Family Residential. The property is in the Brooklawns Neighborhood, which consists of industrial uses in the northern third of the neighborhood, medical use (Methodist Hospital) in the southwestern third and a mix of predominantly single family homes in the southeastern third. A small amount of commercial use exists along Excelsior Blvd; and, two medium density properties are located at the corner of Excelsior Blvd and Dakota Ave. The Brooklawns Neighborhood Plan identifies goals for the single family neighborhood, Excelsior Blvd and the future light rail station. The goals include larger homes, sidewalk improvements, parks and streetscape improvements. It also identifies a concern that the noise generated by the railroad is “troublesome” to residential properties. St. Louis Park Council Meeting Item: 121905 - 8e - Cambridge - Comp Plan & Rezone Page 3 Issues: ¤ What changed, or what changing conditions make the passage of this amendment necessary? ¤ What are the expected effects of the proposed amendment? • How does the proposed amendment change the physical character of the location and neighborhood? • What other uses would be permitted under the proposed rezoning? • How will the proposed amendment affect local traffic? • Does the proposed amendment improve or degrade the transitions between existing land uses? • Are there unaccounted benefits to the proposed amendment, such as the removal of blighted properties? ¤ Is the request consistent with the goals and objectives of the Comprehensive Plan? What changed, or what changing conditions make the passage of this amendment necessary? Properties surrounding the subject property include industrial uses to the north, west and south. The railroad runs along the east property line with predominantly single family homes on the east side of the railroad tracks. While the neighborhood to the east is predominantly single family, there are some two-family homes scattered throughout the neighborhood, and this is the only residential property west of the railroad tracks. St. Louis Park Council Meeting Item: 121905 - 8e - Cambridge - Comp Plan & Rezone Page 4 Historically, the city identified the railroad as a physical boundary, and since 1959, used it to separate and buffer the industrial uses from the residential neighborhoods. While this physical separation protects residential neighborhoods from noise, odor and traffic impacts resulting from the industrial uses, it also protects the industrial properties by reducing the likelihood of complaints and vandalism and accidents resulting from trespassing. The railroad tracks provide a physical separation between land uses of single family and industrial. The applicant’s property is on the industrial side of that barrier which makes it difficult to justify the rezoning of an industrial property to residential. There have been no physical changes to the neighborhood to suggest a need to change the Comprehensive Plan and/or rezone this site. The zoning map for this area has been consistent since 1959, and the property has been legally non-conforming since 1959. The only recent change to city ordinances and state laws that could be seen to have an impact on this property is the state law that protects legally-non-conforming structures and land uses by allowing them to indefinitely continue and, be completely rebuilt within one year of the structure being removed or damaged. This law greatly improved the situation facing non-conforming properties by making them more marketable. The applicant believes that the market has changed making it more difficult to provide financing and insurance for legally non-conforming structures. He has provided letters from financial and insurance agencies to support this claim. These letters include one letter from an insurance agency, two from a lender and a one from an appraiser (attached). All of the letters acknowledge the difficulties inherent in a legally non-conforming structure, but none of them state that financing or insurance cannot be provided. Some are not signed yet, as they are being reviewed by the issuing companies attorneys for content. The applicant states that he believes the letters will be signed, and will have signed copies for the Council at the meeting. Staff acknowledges that financing and insurance of such structures may be more difficult to obtain than conforming structures, however, the city has numerous legally non-conforming structures that are insured, and bought and sold. The most common type of legally non- conforming structure is the two-family dwelling, and there are many of them scattered throughout the R-1 and R-2 Single Family Residential Districts. Staff frequently receives phone calls from appraisers and lending institutions checking on the zoning of these structures, and informs them that they are legally non-conforming. Staff has yet to encounter a property that could not be sold or insured as a result of the legally non-conforming designation. What other uses would be permitted under the proposed rezoning? The following is a list of uses allowed in both the I-G General Industrial District and the R-3 Two Family Residential District. The uses listed as permitted or permitted with conditions do not require review by the Planning Commission or approval by the City Council. The uses listed as permitted by Conditional Use Permit (CUP) require a public hearing before the Planning Commission, and approval by the City Council. St. Louis Park Council Meeting Item: 121905 - 8e - Cambridge - Comp Plan & Rezone Page 5 How will the proposed amendment affect local traffic? A difference between a residential use and an industrial use is the type of traffic generated. An industrial use will generate both car and truck traffic, while residential uses generate predominantly car traffic. The type of traffic is a significant reason for separating the land uses. Locating industrial uses together minimizes truck traffic on residential roads, and keeps it on those roads designed and intended to for industrial traffic. The traffic generated from this small parcel whether it is zoned industrial or residential is very limited and would have little or no traffic impact on the surrounding area. Does the proposed amendment improve or degrade the transitions between existing land uses? Staff believes the proposed amendment will degrade the transition between existing land uses. The transition between the medium density residential and industrial land uses is effectively delineated by the railroad track, and is made even more effective by the fact that the track is elevated and provides a physical barrier blocking views, noise and traffic. I-G General Industrial District R-3 Two Family Residential District Permitted Uses Showrooms Single family dwellings Freight terminals Two family dwellings Manufacturing/processing, recycling operations State-licensed residential facilities serving 6 or fewer persons Warehouse and storage Parks/open space Parcel delivery services Multi-family dwellings existing before December 31, 1992 Permitted With Conditions Utility substations Religious institutions High impact sexually oriented business Communication tower Animal handling Group home/non-statutory Autobody/painting Nursing home Composting operations Community centers Motor vehicle service and repair Educational (academic) Outdoor storage Libraries Parking lots Parks and recreation Office Police/fire station Medical/dental laboratories Public service structure Permitted by CUP Heliport Public service structure More than one principal building 2 principal buildings on a single lot Group Daycare/nursery school Detached garages exceeding size limits More than one principal building St. Louis Park Council Meeting Item: 121905 - 8e - Cambridge - Comp Plan & Rezone Page 6 The transition of land uses in the Brooklawns Neighborhood are so well defined by the railroad and other physical features that the only encroachment by a land use across a transition is the subject property. While the existing 4 dwelling units currently co-exist with industrial uses and traffic, it is the intent of the Comprehensive Plan and current zoning that the use of this property should be industrial, not residential. The redevelopment options for this property include removing the existing structures and building a new industrial building, or removing the structures and combining with adjacent industrial properties to form a larger industrial redevelopment project. Are there unaccounted benefits to the proposed amendment, such as the removal of blighted properties? The existing structures are not blighted and appear to be in good condition. Mr. Murphy submitted a drawing (attached) indicating that he believes the property is too small for an industrial use. However, the setbacks used in the analysis are too big. He is proposing a 50 foot front yard setback where the code requirement for a one story industrial building is 20 feet (40 feet if parking is provided in the front). He also proposes a 20 foot side and rear setback where the code requirement is 12 feet on one side, 0 feet on the other and 10 feet to the rear. The odd shape and small size of the property is a limiting factor, but would not prevent a small industrial structure from being built. Other industrial uses are allowed, including outside storage as a principal use, which are not dependent upon building space. The property could also be combined with additional industrial properties to allow for a larger industrial structure or expansion of the existing adjoining structures. Is the request consistent with the goals and objectives of the Comprehensive Plan? The Industrial Chapter of the Comprehensive Plan identifies up to 9% of the land in the city as being industrial. Since 2000, the city has rezoned some industrial parcels from industrial to another district, typically residential. The city has not rezoned land from another land use to industrial so the percentage of industrial land has declined since 2000. The Comprehensive Plan identifies a goal of providing a variety of housing where applicable, and maintaining the integrity of the industrial areas by providing opportunities for expansion and protecting the industrial areas from encroachment of other land uses. Staff believes the proposed amendment would create an encroachment of residential into an otherwise dominantly industrial area. Staff also believes that while providing for a variety of housing is an important goal, and is actively being pursued throughout the city, the future use of this particular property would be better as industrial rather than residential. There are numerous better residential opportunities throughout the city, but few locations for preserving or enhancing industrial. Therefore, staff believes the request is not consistent with the goals and objectives of the Comprehensive Plan, and that the land use map and zoning map should remain industrial for this property. St. Louis Park Council Meeting Item: 121905 - 8e - Cambridge - Comp Plan & Rezone Page 7 Public Process: Mr. Steve Murphy, acting on behalf of the applicant, presented the application to the Planning Commission on November 16, 2005. Mr. Murphy explained the difficulty he is having selling the building, and he stated that his potential buyers are having difficulty finding financing and insurance. The Planning Commission conducted a public hearing at that meeting, and received no comments from the public. The Planning Commission recommended denial of the requested amendments, based on the belief that the most appropriate future use for the property is industrial. They felt mortgage companies should not be dictating zoning or be requesting letters that guarantee the property meets all applicable laws and codes. They also felt that the state statute protects the property for rebuilding, and that changing the zoning is the wrong tool for this situation. Recommendation: The Planning Commission and Staff recommend that the Council adopt the attached Resolution denying the request to amend the Comprehensive Plan and Zoning for the parcel at 6300-6312 Cambridge Street. Attachments: Proposed Resolution of denial (attachment) Draft minutes from November 16, 2005 (attachment) Location map (supplement) Letters submitted by applicant (supplement) Applications (supplement) Prepared by: Gary Morrison, Assistant Zoning Administrator Reviewed by: Meg McMonigal, Planning & Zoning Supervisor Approved by: Nancy Gohman, Deputy City Manager/HR Director St. Louis Park Council Meeting Item: 121905 - 8e - Cambridge - Comp Plan & Rezone Page 8 RESOLUTION NO. 05-184 RESOLUTION OF DENIAL A RESOLUTION OF FINDING REGARDING THE APPLICATION FOR AN AMENDMENT TO THE COMPREHENSIVE PLAN 2000-2020 AND A REZONING FROM GENERAL INDUSTRIAL (IG) TO TWO FAMILY RESIDENTIAL (R-3) FOR THE PROPERTY LOCATED AT 6300 – 6312 CAMBRIDGE STREET WHEREAS, on August 9, 2005, Julie L. Murphy filed an application to amend the Comprehensive Plan land use designation for property located at 6300-6312 Cambridge Street from Industrial to Medium Density Residential, and an amendment to the Zoning Map to change the zoning from General Industrial (IG) to Two Family Residential (R-3), and WHEREAS, the Planning Commission held a public hearing to consider the request on October 5, 2005 and at the request of the applicant continued that hearing to October 19, 2005 and November 16, 2005, and WHEREAS, the Comprehensive Plan 2000-2020 was adopted by the City Council on May 17, 1999 (effective September 1, 1999) and provides the following: 1. An official statement serving as the basic guide in making land use, transportation and community facilities and service decisions affecting the City. 2. A framework for policies and actions leading to the improvement of the physical, financial, and social environment of the City, thereby providing a good place to live and work and a setting conducive for new development. 3. A promotion of the public interest in establishing a more functional, healthful, interesting, and efficient community by serving the interests of the community at large rather than the interests of individual or special groups within the community if their interests are at variance with the public interest. 4. An effective framework for direction and coordination of activities affecting the development and preservation of the community. 5. Treatment of the entire community as one ecosystem and to inject long range considerations into determinations affecting short-range action, and WHEREAS, the use of such Comprehensive Plan will insure a safer, more pleasant, and more economical environment for residential, commercial, industrial, and public activities and will promote the public health, safety, and general welfare, and St. Louis Park Council Meeting Item: 121905 - 8e - Cambridge - Comp Plan & Rezone Page 9 WHEREAS, said Plan will prepare the community for anticipated desirable change, thereby bringing about significant savings in both private and public expenditures, and WHEREAS, the Comprehensive Plan has taken due cognizance of the planning activities of adjacent units of government, and WHEREAS, the Comprehensive Plan is to be periodically reviewed by the Planning Commission of the City of St. Louis Park and amendments made, if justified according to procedures, rules, and laws, and provided such amendments would provide a positive result and are consistent with other provisions in the Comprehensive Plan, and WHEREAS, the Planning Commission considered the staff report, the statements of the applicant and public and recommended denial of the request on a vote of 5-0; and WHEREAS, the contents of Planning Case File No. 05-50-CP and Planning Case File No. 05-51-Z are hereby entered into and made part of the public hearing record and the record of decision for this case. NOW THEREFORE BE IT RESOLVED that the City Council of the City of St. Louis Park makes the following findings: 1. The City Council has considered the advice and recommendation of the Planning Commission (Case No. 05-50-CP and 05-51-Z); and 2. The City Council has considered the effect of the proposed Comprehensive Plan Map amendment and Zoning Map amendment on the health, safety and welfare of the occupants of the surrounding lands and finds the following: a. The property has been guided Industrial since 1984 and zoned Industrial since 1932; b. The long term use of the property is planned for industrial based on the site characteristics and surrounding land uses; c. The comprehensive plan map and zoning map designations should be, and were, determined through a public process involving the input of the neighborhood, and a comprehensive, city wide land use analysis and not solely determined by the financing options made available by mortgage companies; d. The property abuts other industrial property; e. The character of the area has not changed in any substantial way since the property was originally guided and zoned Industrial; f. The property can be put to a reasonable use under its current Industrial classification; and g. The property’s current legal nonconforming residential use also provides a reasonable use of the property. St. Louis Park Council Meeting Item: 121905 - 8e - Cambridge - Comp Plan & Rezone Page 10 NOW THEREFORE BE IT RESOLVED by the City Council of the City of St. Louis Park that the applicant’s request for an amendment to Comprehensive Plan 2000 – 2020 to change the land use designation at 6300-6312 Cambridge Avenue from Industrial to Medium Density Residential and the rezoning request from General Industrial (IG) to R-3 – Two Family Residential is hereby denied. Reviewed for Administration Adopted by the City Council December 19, 2005 City Manager Mayor Attest: City Clerk St. Louis Park Council Meeting Item: 121905 - 8e - Cambridge - Comp Plan & Rezone Page 11 Unofficial Minutes Excerpts – Planning Commission November 16, 2005 3. Hearings A. Comprehensive Plan Amendment and Rezoning from Industrial to Two-Family Residential (Continued from October 5, 2005 and October 19, 2005) Location: 6300-6312 Cambridge Applicant: Julie Murphy Case Nos.: 05-50-CP and 05-51-Z Gary Morrison, Assistant Zoning Administrator, presented the staff report. He explained that the applicant would like to sell the property. The applicant has stated they cannot get financing or insurance because the property’s use is legally non-conforming. They are presenting rezoning as a solution to make the property conforming. Mr. Morrison said staff review has found that the property has a legally non-conforming land use as a residential use in an industrially zoned property. There are numerous other legal non-conforming uses throughout the City. Staff acknowledges that financing and insuring these properties may be difficult, but not impossible. Mr. Morrison referenced a state law passed in 2004 which allows any legal non-conforming structure to be replaced in its entirety within one year of being damaged or removed. Mr. Morrison stated that staff recommendation is for denial of the requests for Comprehensive Plan amendment and rezoning. Commissioner Robertson asked if there was any zoning which would allow residential, but also allow much of what is allowed in the Industrial District so that the property could become conforming but not have to be residential. Mr. Morrison said the closest would be R-4 where there is a permitted office use if less than 2,500 sq. ft., but the applicant’s property exceeds that size. Commissioner Morris asked about Certificates of Rebuild. Mr. Morrison said those requests come to him, and he will not issue those certificates. He commented on laws and ordinances changing and without an inspection, staff can’t say for certain that a property meets code. Commissioner Morris said in 2002 in order the list the property the owner would have been required to get a City inspection to certify the property meets code. Mr. Morrison said owners get an inspection under the building code and housing code, but not the zoning code. Commissioner Morris asked if the Certificate of Rebuild would be a zoning letter. St. Louis Park Council Meeting Item: 121905 - 8e - Cambridge - Comp Plan & Rezone Page 12 Mr. Morrison responded a Certificate of Rebuild would encompass a housing inspection, code compliance and zoning compliance. Steve Murphy, husband of applicant Julie Murphy, said that mortgage companies are adding more layers of requirements due to changing laws and codes. He explained that three years ago when the property was purchased, the appraisal did not require noting whether or not the property was a legal non-conforming use. At that time, the financing company was more concerned about value, not whether or not it was a legal non- conforming use. Mr. Murphy spoke about a property he owns in Hopkins which is also a double bungalow in similar circumstances. He tried selling it in Spring, 2005, but could not sell it because the City of Hopkins refused to issue a Certificate of Rebuild. Their ordinances were contrary to state law. He explained that he faxed the state statute to the mortgage company. It was determined that since City of Hopkins staff could not give a legal opinion, the document was not acceptable. The mortgage company had to have something that would state it was rebuildable. In the City of Hopkins, he was the first property owner to request a Certificate of Rebuild. Mr. Murphy said he believes the City of St. Louis Park will be receiving many requests for Certificates of Rebuild as financing is getting very difficult. Owners have to be able to prove that their properties are rebuildable. He went on to say that an undue hardship is created for any legal non- conforming use because of the way things have changed in the last two years in the financing and insurance industry. Commissioner Kramer asked for clarification about the 2004 state statute as it regards the applicant’s property. Mr. Morrison said nothing has changed from the City’s perspective. Zoning has not changed. State law has changed to the owner’s benefit in allowing them the right to completely rebuild the structure if it is damaged or removed, so they’ve had some relief in that regard. He said that previously, if a property was damaged beyond 60%, it had to be removed and could not be rebuilt. Commissioner Johnston-Madison commented that what changed from the past is that the legal non-conforming status is now noted in the appraisal. Mortgage companies don’t want to underwrite a mortgage that is not saleable in their portfolio. She asked for more information as to why the Zoning Administrator cannot issue a Certificate of Rebuild. Mr. Morrison said he has been asked a couple of times to issue such a certificate and he has refused because he does not have a physical inspection review of the property to make sure all issues are met. Typically requests are made for these kinds of letters without an as-built survey so he has nothing to review. He is just asked to sign off on the letter saying yes, it can be rebuilt. Most of the time he cannot do that because he doesn’t have the data. St. Louis Park Council Meeting Item: 121905 - 8e - Cambridge - Comp Plan & Rezone Page 13 Mr. Morrison went on to say that zoning letters have been issued in the past. Over the last few years those letters have evolved into two-page requests about a multitude of issues. It becomes a very labor intensive process, especially with large complexes, verifying that it meets every single code. Staff provides the zoning and flood information and lets the applicant know the files are open for their review. Ms. McMonigal, Planning and Zoning Supervisor, added that many cities no longer answer these kinds of requests. They will answer zoning and floodplain questions. Mortgage companies are invited to review the files, complete a survey and do the research. After completing the research, mortgage companies can certify the information back to the lender or insurance company. Commissioner Robertson said it seems the applicant is asking to have the zoning changed to simplify this. He said that zoning is a whole different issue and the alternative is to put the burden back on the applicant to take care of this a different way. He said he presumed it would be difficult and expensive. He asked staff if it could be done. Ms. McMonigal responded she believed it could be done. She felt if the applicant took the state law back to a lender or had an attorney take it back to the lender, it would work. Commissioner Johnston-Madison asked Mr. Murphy why the lender isn’t providing this certification service. Mr. Murphy responded that the lender wants the information and they want the city to provide it. He continued by saying that all the lender wants to know is if the property is rebuildable. He said in Hopkins, the City Attorney prevented staff from giving a legal opinion to decipher the state law and how it applies to local municipalities. Tom Scott, City Attorney, said there isn’t any problem pointing out the City ordinance and the state statute. Normally the mortgage company reads the state statute and makes its own conclusion about rebuilding. He said typically City Attorneys advise staff not to render legal opinions. Informal discussion and clarification is conducted but legal opinions are not provided. In reference to the questionnaires requesting certification of a multitude of other issues, Mr. Scott said he agrees with staff that it is the mortgage company’s responsibility to research and certify those issues. In response to a question regarding whether or not City code is in compliance with the 2004 state statute, Mr. Morrison said the code has not been amended to be consistent with the recent state statute. He added that the state statute supercedes the city ordinance. Ms. McMonigal said staff is working on that particular amendment. St. Louis Park Council Meeting Item: 121905 - 8e - Cambridge - Comp Plan & Rezone Page 14 Mr. Murphy stated that if state law changes again they will still have a problem with being non-conforming. He said if the property is rezoned to R-3 the property will be safe forever. He said ultimately the market is the best arbiter of what is the best use of the property. He said as the property abuts the R-3 district, it would be an easier way to go. Mr. Murphy commented on the decrease in the value of the property as currently zoned. He explained the benefits of rezoning to the City in that it takes away the risk for buyers and the value increases. He said the economics aren’t there for a commercial building. Currently it is difficult to obtain a Certificate of Rebuild and it is difficult to sell. Commissioner Robertson asked if the property had any historic significance. Mr. Morrison said that NordicWare is the only property with historic significance in the area. Commissioner Morris asked if the lender documents provided by the applicant came from buyers. Mr. Murphy said he had provided a couple of different mortgage company’s views. Commissioner Morris said he didn’t see any evidence that anyone had not been able to secure financing. Mr. Murphy said buyers had not qualified because of zoning. Commissioner Morris said his reading of the letter shows that it has been difficult but that there is a new state statute and those difficulties are being overcome. He said he thinks what the applicant is explaining is a traditional problem. But since statutory legislation has recently been passed to address the problem, it seems that the lenders aren’t coming on board and adjusting their underwriting review requirements. Commissioner Morris said the industry is exhibiting the problems, not the municipal bodies which provide information to the industry. He said there are probably dozens of legal non-conforming properties that are sold annually. He said he didn’t think Comprehensive Plans and zoning codes need to be changed to accommodate lender’s demands for assurance of their loans. Chair Carper opened the public hearing. As no one was present wishing to speak, the Chair closed the public hearing. Chair Carper asked how many similar properties might exist. Mr. Morrison responded that there are many legal non-conforming structures and uses, and duplexes are probably the most common. Ms. McMonigal said the question isn’t just about rezoning, but also regards looking at the long range plan. Zoning changes then follow Comprehensive Plan changes. St. Louis Park Council Meeting Item: 121905 - 8e - Cambridge - Comp Plan & Rezone Page 15 Commissioner Robertson said he sympathizes with the applicant’s problems, but the highest and best use is for the property to remain industrial. Mortgage companies should not be dictating zoning or requesting letters of absolute guarantee. He said it appears that the state statute protects the property for rebuilding. Commissioner Morris said he was somewhat divided on the arguments. He understands the seller’s hardship but said he’s uncomfortable using a spot zoning method to correct the issues of financial institutions. He commented that the property is up to City code, it is sellable, it may be more difficult to find a lender willing to underwrite the loan, the state has identified problems and proactively changed some statutes on it, and the City is working on its mechanism for complying with the state statute. He said it’s not in the Commission’s realm to determine the market. He said he supports the staff recommendation of denial. Commissioner Kramer said he also sympathizes with the applicant, but said he felt the applicant had options. He said there is always a market for insurance at some premium, the property still has rental income, and contract for deed could be used for mortgage financing. Commissioner Kramer said changing the zoning is the wrong tool for this situation. He said he supports the staff recommendation. Commissioner Johnston-Madison said she also sympathized with the applicant but she is concerned about setting a precedent for rezoning. She said it is imperative that the City amend the zoning code as quickly as possible to reflect the state statute. Presenting the amendment to a mortgage company could benefit the seller. She said it is a difficult decision but she also supports the staff recommendation. Chair Carper said he was also concerned about precedent and the unintended consequences of the rezoning request. Commissioner Morris made a motion to recommend denial of the Comprehensive Plan amendment to change the land use designation from Industrial to Medium Density Residential and denial of a zoning map amendment to change the zoning designation from IG-General Industrial to R3 – Two Family Residential. Commissioner Robertson seconded the motion. The motion recommending denial passed on a vote of 5-0. St. Louis Park Council Meeting Item: 121905 - 8f - 1st Rdg Of Zoning Ordinance - Places Of Assembly Page 1 8f. First Reading of a Zoning Ordinance Amendment to create a category titled “Places of Assembly” and allow such uses in the C-1, C-2 and O zoning districts by Conditional Use Permit. Case No. 05-60-ZA Recommended Action: Motion to approve first reading of Zoning Ordinance amendment, and set second reading for January 3, 2006. Description of Proposal It is proposed to revise the Zoning Ordinance to create a new category, “Places of Assembly” into the C-1, C-2 and O zoning districts. It will incorporate uses such as clubs/lodges, religious institutions and other similar uses into one use category. These uses would be permitted with a Conditional Use Permit (CUP). The Planning Commission held a public hearing on October 19, 2005 and discussed the zoning at a study session on November 16, 2005. Some clarifications were made and the Planning Commission recommended approval on December 7, 2005. Background We received a request to allow religious uses in the C-1 zoning district, and determined it was important to take a broader look at the zoning categories that had similar characteristics and group them together. The reason to look more broadly is because of the “Religious Land Use and Institutionalized Persons Act of 2000” or RLUIPA, a federal law passed in 2000. RLUIPA was put into place in order to have a balanced treatment in zoning codes where similar uses, such as clubs and lodges, are permitted. As a result, a new use category is proposed. “Places of Assembly,” and it is proposed that such uses be allowed in the C-1, Neighborhood Commercial, C-2, General Commercial and O, Office districts, with some conditions and limitations. Proposed Ordinance To accommodate this new category, a new land use description for “Places of Assembly” is created as follows: Places of Assembly are facilities designed to accommodate larger groups of people having shared goals, desires or interests that are not customarily business related. Social, educational, recreational, religious, and dining activities may be included. Characteristics may include space for large group meetings or activities with peak parking demands and generation of noise. If the floor area devoted to food or beverage sales exceeds 50% of the total gross floor area or if intoxicating liquor is served, the facility will be classified as a restaurant. St. Louis Park Council Meeting Item: 121905 - 8f - 1st Rdg Of Zoning Ordinance - Places Of Assembly Page 2 The category of “Clubs and Lodges” is proposed to be deleted from the C-1, C-2, and O zoning districts, and incorporated into the new “Places of Assembly” use. The category of “Religious Institutions” would be retained and continue to be allowed in the residential zoning districts. Clubs and lodges are not allowed in residential districts. The conditions for approval for “Places of Assembly” will incorporate the existing conditions for both religious institutions and club and lodges, plus new conditions as follows: • All buildings shall be located a minimum of 30 feet from any lot line of a lot in an R district. • Access shall be to a roadway identified in the comprehensive plan as a collector or arterial or shall be otherwise located so that access can be provided without generating significant traffic on local residential streets. • Occupancy shall be limited to 150 persons. • Parking shall meet zoning code requirements, unless it is a religious or other institution that requires walking because of a religious tenet or other rule, then 1 space per every 8 seats shall be required. • In multi-tenant buildings, noise shall be contained within that space dedicated to the place of assembly use. No noise shall be audible within common areas or in adjacent unit. • In multi-tenant buildings, the place of assembly shall have a separate entrance or shall have an interior entrance that is within 50 feet of a common building entrance. • A bufferyard A shall be installed and maintained along all property lines that abut property in an R district. Intoxicating liquor would only be allowed in the C-2 and O districts as shown in the table below: Places of Assembly Zoning District Places of Assembly Without intoxicating liquor Places of Assembly With intoxicating liquor C-1, Neighborhood Commercial CUP Not allowed C-2, General CUP CUP O, Office CUP CUP St. Louis Park Council Meeting Item: 121905 - 8f - 1st Rdg Of Zoning Ordinance - Places Of Assembly Page 3 For those uses with intoxicating liquor, the following additional conditions would apply: • Buildings shall be located a minimum of 100 feet from any parcel that is zoned residential and used or subdivided for residential or has an occupied institutional building including but not limited to a school, religious institution or community center. • A bufferyard F shall be installed and maintained along any abutting property in an R district. • The use must be in conformance with the comprehensive plan including any provisions of the redevelopment chapter and the plan by neighborhood policies for the neighborhood in which it is located and conditions of approval may be added as a means of satisfying this requirement. Summary The proposed ordinance would allow Places of Assembly in the C-1, C-2 and O with a Conditional Use Permit, under conditions required in the Ordinance. Recommendation Staff and the Planning Commission recommend approval of the proposed changes to the Zoning Ordinance. Attachments: Ø Draft Ordinance Ø Planning Commission minutes of October 19, 2005 and December 7, 2005. Prepared By: Meg J. McMonigal, Planning and Zoning Supervisor Reviewed By: Kevin Locke, Community Development Director Approved By: Nancy Gohman, Deputy City Manager/HR Director St. Louis Park Council Meeting Item: 121905 - 8f - 1st Rdg Of Zoning Ordinance - Places Of Assembly Page 4 DRAFT ORDINANCE ORDINANCE NO.______-05 AN ORDINANCE AMENDING THE ST. LOUIS PARK ORDINANCE CODE RELATING TO ZONING BY AMENDING SECTIONS 36-142, 36-193, 36-194 AND 36-221 PLACES OF ASSEMBLY IN C-1, C-2 AND O DISTRICTS THE CITY OF ST. LOUIS PARK DOES ORDAIN: Findings Sec. 1. The City Council has considered the advice and recommendation of the Planning Commission (Case No. 05-60-ZA). Sec. 2. The St. Louis Park Ordinance Code, Sections 36-142, 36-193, 36-194 and 36-221 are hereby amended by deleting striken language and adding underscored language. Section 36-142 Land Use Descriptions Change (d) (8) from Clubs and Lodges to Places of Assembly: (d) Commercial uses (8) Club/lodge means a facility operated by an association of persons primarily not for profit where social, educational, recreational or dining activities are provided. Services provided are not customarily carried on as a business and may include dining, consumption of alcoholic beverages, dancing, legal gambling, and meetings. Characteristics may include late hours, high parking demand, noise and heavy off-peak traffic. (8) Places of Assembly are facilities designed to accommodate larger groups of people having shared goals, desires or interests that are not customarily business related. Social, educational, recreational, religious, and dining activities may be included. Characteristics may include space for large group meetings or activities with peak parking demands and generation of noise. If the floor area devoted to food or beverage sales exceeds 50% of the total gross floor area or if intoxicating liquor is served, the facility will be classified as a restaurant. St. Louis Park Council Meeting Item: 121905 - 8f - 1st Rdg Of Zoning Ordinance - Places Of Assembly Page 5 Section 36-193 C-1 Zoning District Delete Clubs and Lodges (c) Uses permitted with conditions: (11) Clubs and lodges without intoxicating liquor license. The conditions are as follows: a. Access shall be to a roadway identified in the comprehensive plan as a collector or arterial or shall be otherwise located so that access can be provided without generating significant traffic on local residential streets. b. Buildings shall be located a minimum of 25 feet from any parcel that is zoned residential and used or subdivided for residential or has an occupied institutional building including but not limited to a school, religious institution or community center. c. A bufferyard E shall be installed and maintained along all property lines which abut property in an R district. This bufferyard shall at a minimum include a B2 berm or F5 fence as illustrated under section 36-364. d. If there is a wine and/or beer license, there shall be no separate bar area within the club or lodge. Add Places of Assembly without intoxicating liquor (d) Conditional Uses: (8) Places of Assembly without intoxicating liquor. The conditions are as follows: a. All buildings shall be located a minimum of 30 feet from any lot line of a lot in an R district. b. Access shall be to a roadway identified in the comprehensive plan as a collector or arterial or shall be otherwise located so that access can be provided without generating significant traffic on local residential streets. c. Occupancy shall be limited to 150 persons. d. Parking shall meet zoning code requirements, unless it is a religious or other institution requires walking because of a religious tenet or other rule, then 1 space per every 8 seats shall be required. e. In multi-tenant buildings, noise shall be contained within that space dedicated to the place of assembly use. No noise shall be audible within common areas or in adjacent unit. f. In multi-tenant buildings, the place of assembly shall have a separate entrance or shall have an interior entrance that is within 50 feet of a common building entrance. g. A bufferyard A shall be installed and maintained along all property lines that abut property in an R district. St. Louis Park Council Meeting Item: 121905 - 8f - 1st Rdg Of Zoning Ordinance - Places Of Assembly Page 6 Section 36-194 C-2 Zoning District Delete Clubs and Lodges without intoxicating liquor license (c) Uses permitted with conditions: (9) Clubs and lodges without intoxicating liquor license. The conditions are as follows: a. Access shall be to a roadway identified in the comprehensive plan as a collector or arterial or shall be otherwise located so that access can be provided without generating significant traffic on local residential streets. b. Buildings shall be located a minimum of 25 feet from any parcel that is zoned residential and used or subdivided for residential or has an occupied institutional building including but not limited to a school, religious institution or community center. c. A bufferyard E shall be installed and maintained along all property lines which abut property in an R district. This bufferyard shall at a minimum include a B2 berm or F5 fence as illustrated under section 36-364. d. If there is a wine and/or beer license, the following additional conditions shall apply: 1. There shall be no separate bar area within the club or lodge. 2. If the conditions in subsections (c)(9)a.--(c)(9)c. of this section are not met, a club or lodge with a wine and/or beer license may apply for a conditional use permit under section 36-194(d)(5). Delete Clubs and Lodges with intoxicating liquor license (d) Uses permitted by conditional use permit: (5) Clubs and lodges with intoxicating liquor license. The conditions are as follows: a. Access shall be to a roadway identified in the comprehensive plan as a collector or arterial or shall be otherwise located so that access can be provided without generating significant traffic on local residential streets. b. Buildings shall be located a minimum of 100 feet from any parcel that is zoned residential and used or subdivided for residential or has an occupied institutional building including but not limited to a school, religious institution or community center. c. Separate pedestrianways shall be constructed to allow for the separation of pedestrian and vehicular movements within the parking lot. d. A bufferyard F shall be installed and maintained along any abutting property in an R district. e. The use is in conformance with the comprehensive plan including any provisions of the redevelopment chapter and the plan by neighborhood policies for the neighborhood in which it is located and conditions of approval may be added as a means of satisfying this requirement. St. Louis Park Council Meeting Item: 121905 - 8f - 1st Rdg Of Zoning Ordinance - Places Of Assembly Page 7 Add Places of Assembly (d) Conditional Uses: (5) Places of Assembly. The conditions are as follows: a. All buildings shall be located a minimum of 30 feet from any lot line of a lot in an R district. b. Access shall be to a roadway identified in the comprehensive plan as a collector or arterial or shall be otherwise located so that access can be provided without generating significant traffic on local residential streets. c. Occupancy shall be limited to 150 persons. d. Parking shall meet zoning code requirements, unless it is a religious or other institution requires walking because of a religious tenet or other rule, then 1 space per every 8 seats shall be required. e. In multi-tenant buildings, noise shall be contained within that space dedicated to the place of assembly use. No noise shall be audible within common areas or in adjacent unit. f. In multi-tenant buildings, the place of assembly shall have a separate entrance or shall have an interior entrance that is within 50 feet of a common building entrance. g. A bufferyard A shall be installed and maintained along all property lines that abut property in an R district. h. With intoxicating liquor, the following additional conditions apply: i. Buildings shall be located a minimum of 100 feet from any parcel that is zoned residential and used or subdivided for residential or has an occupied institutional building including but not limited to a school, religious institution or community center. ii. A bufferyard F shall be installed and maintained along any abutting property in an R district. iii. The use must be in conformance with the comprehensive plan including any provisions of the redevelopment chapter and the plan by neighborhood policies for the neighborhood in which it is located and conditions of approval may be added as a means of satisfying this requirement. St. Louis Park Council Meeting Item: 121905 - 8f - 1st Rdg Of Zoning Ordinance - Places Of Assembly Page 8 Section 36-221 O, Office Zoning District Delete Clubs and Lodges without intoxicating liquor license (c) Uses permitted with conditions: (9) Clubs and lodges without intoxicating liquor license. The conditions are as follows: a. Access shall be to a roadway identified in the comprehensive plan as a collector or arterial or shall be otherwise located so that access can be provided without generating significant traffic on local residential streets. b. Buildings shall be located a minimum of 25 feet from any parcel that is zoned residential and used or subdivided for residential, or has an occupied institutional building, including but not limited to a school, religious institution or community center. c. A bufferyard E shall be installed and maintained along all property lines which abut property in an R district. This bufferyard shall, at a minimum, include a B2 berm or F5 fence. d. If there is a wine and/or beer license, the following additional conditions shall apply: 1. There shall be no separate bar area within the club or lodge. 2. If the conditions in subsections (c)(9)a.--(c)(9)c. of this section are not met, a club or lodge with a wine and/or beer license may apply for a conditional use permit under section (d)(6) of this section. Delete Clubs and Lodges with intoxicating liquor license (d) Uses permitted by conditional use permit: (6) Clubs and lodges with intoxicating liquor license. The conditions are as follows: a. Access shall be to a roadway identified in the comprehensive plan as a collector or arterial or shall be otherwise located so that access can be provided without generating significant traffic on local residential streets. b. The building housing the use shall be located a minimum of 100 feet from any parcel that is zoned residential and used or subdivided for residential, or has an occupied institutional building, including but not limited to a school, religious institution or community center. c. Separate pedestrianways shall be constructed to allow for the separation of pedestrian and vehicular movements within the parking lot. d. A bufferyard F shall be installed and maintained along all property lines which abut property in an R district. e. The use is in conformance with the comprehensive plan including any provisions of the redevelopment chapter and the plan by neighborhood policies for the neighborhood in St. Louis Park Council Meeting Item: 121905 - 8f - 1st Rdg Of Zoning Ordinance - Places Of Assembly Page 9 which it is located and conditions of approval may be added as a means of satisfying this requirement. Add Places of Assembly (d) Conditional Uses: (6) Places of Assembly. The conditions are as follows: a. All buildings shall be located a minimum of 30 feet from any lot line of a lot in an R district. b. Access shall be to a roadway identified in the comprehensive plan as a collector or arterial or shall be otherwise located so that access can be provided without generating significant traffic on local residential streets. c. Occupancy shall be limited to 150 persons. d. Parking shall meet zoning code requirements, unless it is a religious or other institution requires walking because of a religious tenet or other rule, then 1 space per every 8 seats shall be required. e. In multi-tenant buildings, noise shall be contained within that space dedicated to the place of assembly use. No noise shall be audible within common areas or in adjacent unit. f. In multi-tenant buildings, the place of assembly shall have a separate entrance or shall have an interior entrance that is within 50 feet of a common building entrance. g. A bufferyard A shall be installed and maintained along all property lines that abut property in an R district. h. With intoxicating liquor, the following additional conditions apply: i. Buildings shall be located a minimum of 100 feet from any parcel that is zoned residential and used or subdivided for residential or has an occupied institutional building including but not limited to a school, religious institution or community center. ii. A bufferyard F shall be installed and maintained along any abutting property in an R district. iii. The use must be in conformance with the comprehensive plan including any provisions of the redevelopment chapter and the plan by neighborhood policies for the neighborhood in which it is located and conditions of approval may be added as a means of satisfying this requirement. Sec. 3. The contents of Planning Case File 05-60-ZA are hereby entered into and made part of the public hearing record and the record of decision for this case. Sec. 4. This Ordinance shall take effect fifteen days after its publication. St. Louis Park Council Meeting Item: 121905 - 8f - 1st Rdg Of Zoning Ordinance - Places Of Assembly Page 10 UNOFFICIAL MINUTES PLANNING COMMISSION ST. LOUIS PARK, MINNESOTA October 19, 2005--6:00 p.m. COUNCIL CHAMBERS C. Zoning text amendment allowing “Places of Assembly” as a Conditional Use in the C-1, Neighborhood Commercial; C-2, General Commercial and O, Office zoning districts. Case No: 05-60-ZA Ms. McMonigal presented the staff report. She distributed a revised draft ordinance. Chair Carper asked if a map overlay is available which illustrates the affected zoning districts. Ms. McMonigal indicated the affected districts on the zoning map. Commissioner Johnston-Madison suggested that the topic may need a study session discussion. s. McMonigal said a study session could be held. Chair Carper opened the public hearing. Jan Burke, representative of a new orthodox congregation, Darchei Noam, said the congregation is trying to find space in St. Louis Park and is limited by the eruv. She explained that when they were looking for a space, they discovered they couldn’t take a space in a commercial district. The spaces they are looking at are limited to Minnetonka Blvd. Ms. Burke said the urgency is that to go through the planning process, including a Conditional Use Permit, they wouldn’t be able to build until spring. She said the congregation is desperately looking for space as quickly as possible. Ms. McMonigal said staff has worked with the synagogue over the past several months looking for possible alternative sites. The synagogue has worked very hard and continues to look at every possible site within the eruv area. She said the issue was discussed once or twice at City Council study sessions. Ms. McMonigal said the proposed amendment has changed a bit as the ordinance has been expanded. Commissioner Johnston-Madison asked which zoning district would be most affected by the amendment. Ms. McMonigal responded that the C-1 district would be impacted the most. She went on to explain that C-1 district is along the south side of Excelsior Blvd. and various spots along Minnetonka Blvd. and Louisiana Ave. Commissioner Johnston-Madison asked how property owners were notified of the proposed amendment. St. Louis Park Council Meeting Item: 121905 - 8f - 1st Rdg Of Zoning Ordinance - Places Of Assembly Page 11 Ms. McMonigal said notification of property owners is typically not done for a City-wide ordinance. A public hearing notice for City-wide ordinances is always published, however. Commissioner Johnston-Madison said she was not comfortable considering the request at this time. Commissioner Morris discussed a scenario such as Miracle Mile where a liquor store recently opened. He asked if it would be allowed to co-exist next to a place of assembly. Ms. McMonigal said theoretically that was correct, unless there were some requirements regarding liquor licensing. Commissioner Morris said he agreed with Commission Johnston-Madison that there needs to be more discussion about the amendment. He said theoretically religious assemblies could be next to bars, restaurants, and gun clubs. Mr. Fulton commented that Federal law prohibits local government from prohibiting churches from locating in a place similar to where a club or lodge would be allowed. Commissioner Morris said the synagogue’s specific need and location may not be in conflict, but there may be unintended conflicts as applied to the zoning code and City in general. Ms. McMonigal said a study session could be held. She suggested that the City Attorney could attend as well. Commissioner Timian stated that it might be a joint City Council and Planning Commission study session. Ms. McMonigal said staff would look into that. Ms. Burke stated that currently the only place to have a place of worship is in a residential area. She commented that parking issues are even more dramatic in a residential area. Chair Carper said that more discussion was needed to address unintended consequences of the proposed amendment. Commissioner Johnston-Madison moved to continue the public hearing until a study session is held. Commissioner Robertson seconded the motion. The motion passed on a vote of 5-0. Discussion was held about inviting the City Council to a Planning Commission study session on this topic. St. Louis Park Council Meeting Item: 121905 - 8f - 1st Rdg Of Zoning Ordinance - Places Of Assembly Page 12 UNOFFICIAL MINUTES PLANNING COMMISSION ST. LOUIS PARK, MINNESOTA December 7, 2005--6:00 p.m. COUNCIL CHAMBERS 4. Hearings: A. Zoning text amendment allowing “Places of Assembly” as a Conditional Use in the C-1, Neighborhood Commercial; C-2, General Commercial and O, Office zoning districts. Case No: 05-60-ZA (continued from October 19, 2005) Meg McMonigal, Planning and Zoning Supervisor, said as discussed at the Planning Commission’s study session on November 16, 2005, changes were made to the proposed ordinance to add bufferyards into the C-1 requirements and to change the words “seating capacity” to “occupancy.” The public hearing was opened on October 19, 2005. As no one was present wishing to speak, Chair Carper closed the public hearing. Commissioner Johnston-Madison made a motion to recommend approval of the proposed ordinance changes. Commissioner Morris seconded the motion. The motion passed on a vote of 6-0. St. Louis Park Council Meeting Item: 121905 - 8g - Approval Deferred Loan To PPL Page 1 8g. Authorization to Direct Staff to Prepare the Required Documents for a Deferred Loan to the Louisiana Court Limited Partnership to Assist with Capital Improvements at Louisiana Court Recommended Action: Motion: Staff recommends that the Council approve Resolution directing staff to undertake the steps required to utilize CDBG and TIF funds from the Park Center TIF District to finance a deferred loan for $400,000 to the Louisiana Court Limited Partnership, and prepare the necessary documents in accordance with the terms as discussed with the Council for approval. PURPOSE OF DISCUSSION: The purpose of this report is to update the Council on the current status regarding Enterprise Social Investment Corporation’s (ESIC) decision to replace US Bank as the Limited Partner at the Louisiana Court housing development and to request that the Council direct staff to undertake the necessary steps and prepare documents to provide a $400,000 deferred loan to The Louisiana Court Limited Partnership to assist with capital improvements at Louisiana Court. The funding source for the loan will be a combination of Community Development Block Grant (CDBG) funds and Tax Increment Financing (TIF) from the Park Center TIF district. BACKGROUND: At the August 8 Study Session, Council explored ownership and operational options for Louisiana Court, including options that would ensure the long-term improvement and viability of Louisiana Court. The Council discussed PPL’s request that the City provide $400,000 in funding to assist with capital improvements and US Bank’s request that the City not take action to foreclose on the property prior to 2015, or ensure that the tax credit income requirements will be in place until such date. After much discussion at the August 8 Study Session, the Council indicated their willingness to assist Louisiana Court in the form of a deferred loan for capital improvements, but that it would be inappropriate for the City to limit its potential remedies for a future default condition. Since the August 8 Study Session, US Bank made a decision not to buy the additional tax credits for Louisiana Court and proposed to sell their limited partnership interest in the development at a deep discount. PPL immediately began discussions with potential Limited Partnership replacements. One of the groups, ESIC, visited the development site and proceeded with a more in-depth analysis of the development’s operational and financial status. St. Louis Park Council Meeting Item: 121905 - 8g - Approval Deferred Loan To PPL Page 2 In November, ESIC informed PPL that they had decided to move forward with acquiring the Limited Partnership interest in the development and supplied a commitment letter to PPL outlining the required terms and conditions needed for them to step in. At a recent meeting attended by ESIC’s local representative, Joe Fusco, and the development’s other financial partners, Mr. Fusco stated that ESIC is aware of the current and future financial and operational needs of the development and that they are confident they have the experience and capacity to take on a project like Louisiana Court. Mr. Fusco stated that ESIC’s decision to step in as the Limited Partner is partly mission driven, noting that they like to take on tough projects. ESIC’s analysis of the development’s financial status and their ultimate decision to become the Limited Partner was based on the assumption that the financial support to assist with capital improvements and other stabilization efforts proposed by each partner would remain unchanged, including a $400,000 deferred loan from the City. The County and Minnesota Housing Finance Agency (MHFA) have indicated their intent to continue to support the project at the funding levels previously established. ESIC is proposing to invest approximately $1,500,000 of additional equity in the project. The attached memo by Mark Ruff, Ehlers & Associates provides a detailed breakdown of the preliminary agreement between ESIC and PPL. ESIC plans to deposit $455,000 in cash at the closing to fund capital improvements, $150,000 in operating reserve to cover shortfalls until 2010 and $114,000 in developer fee to PPL. As noted in Mark’s memo, PPL will be obligated to advance funds to cover operating deficits up to a maximum guarantee of $366,000 consistent with the terms of the agreement. A second payment of $1.01 million will be established as a debt service reserve to be used no later than 2010 but earlier if necessary to cover shortfalls following the PPL guarantees. Between now and the end of the year, ESIC will be “fine tuning” the current and future financial needs of the project. ESIC still needs to make a final determination on the amount of rehabilitation, the expected vacancies, operating costs and amount of estimated operating reserve. The project will be presented to ESIC’s Investment Committee for formal approval prior to the end of the year and it is anticipated that the transfer of the partnership will occur the first week of February. ESIC is a national leader in investment capital and development services for affordable housing and community revitalization efforts. Their core business involves working with housing developers and corporate investors to invest equity in projects that qualify for Low-Income Housing Tax Credits . In Minnesota, ESIC we will have invested in 41 properties by the end of 2005. Comprising over 1,500 units of affordable housing, these properties are located around the state in urban, suburban, and rural locations. The attached Enterprise in Minnesota fact sheet, currently being updated by ESIC, provides an idea of the Minnesota developments ESIC invested in. Louisiana Court is the second project in which ESIC has partnered with PPL. St. Louis Park Council Meeting Item: 121905 - 8g - Approval Deferred Loan To PPL Page 3 Capital Improvement Contribution Deferred Loan: PPL’s Stabilization Plan for Louisiana Court consists of several components, including the completion of additional capital improvements. Although PPL and ESIC are still working on finalizing the amount of rehab that will take place, PPL’s previously submitted stabilization budget estimated the total cost of the improvements is estimated at $1,868,185 including soft costs. PPL is requesting $400,000 from the City to assist in funding the proposed capital improvements. Additional funding commitments have been secured from Hennepin County, Minnesota Housing Finance Agency (MHFA) and ESIC. Total funding resources designated for capital improvements and to replenish project reserves include: • Syndication Proceeds from ESIC : $455,000 • Hennepin County Affordable Housing Incentive Fund (AHIF): $551,261 • MHFA Super RFP: $200,000 • Hennepin County HOME: $500,000 • Hennepin County Lead Abatement: $60,000 Total: $1,766,261 From the City’s position as the first mortgagee, any improvements made to the development increase the future value of the property and may offer further protection of the City’s investment. In the event that the City would ever need to take steps to foreclose on the property, deferred maintenance and needed repairs would greatly affect the value of the property. By contributing $400,000, the City will leverage $3,116,261, in additional resources for the project, including $455,644 in operating subsidy from MHFA and ESIC, which would be a benefit to both the project and the City. Resources available to fund the $400,000 request include $188,900 in 2005 Community Development Block Grant (CDBG) funds that have been designated for multi-family rehab and Tax Increment Financing from the Park Center housing TIF district. The TIF district generates approximately $136,000 in TIF annually, which can only be used for affordable housing related activities. The Council could also consider designating a portion of the City’s 2006 CDBG funds as another potential resource for funding the deferred loan. Although specific terms still need to be determined, the proposed assistance, loan conditions and terms are based on discussions at the study sessions. The anticipated terms include: 1. The amount of the loan will be $400,000. The source of this funding will be some combination of CDBG and TIF from the Park Center TIF District. These funds are specifically required to be used for affordable housing purposes. 2. The interest rate will be a low fixed-rate (2%), calculated as simple interest. Principal and interest payments will be deferred until the loan comes due. 3. The loan will come due in 30 years or at the time of sale of the property, or at the time of refinancing, whichever occurs first. This loan will be secured by a mortgage that will be behind all the existing loans, which makes it likely we would get this money back in total only if the project is very financially successful in the future. St. Louis Park Council Meeting Item: 121905 - 8g - Approval Deferred Loan To PPL Page 4 The City assistance (proposed deferred loan) will be conditioned on the following: 1. ESIC replacing US Bank as the Limited Partner. 2. The City’s final review of ESIC’s and PPL’s rehabilitation budget and the projections for the revenues and expenditures. 3. PPL hiring a general contractor to be responsible for construction of the improvements and construction management. 4. An inspecting architect is hired to ensure the improvements are properly done. 5. PPL’s commitment of participation, support and cooperation with a joint housing agency committee to prepare and monitor a five-year plan to reposition and stabilize Louisiana Court. PPL has indicated that they agree and accept all the proposed conditions and terms of the loan. Tax Credit Requirements/Non-Foreclosure: Previously, US Bank asked that the City address the issue of on-going compliance with Tax Credit requirements in the event that the City of St. Louis Park should find it necessary to foreclose on Louisiana Court at some time in the future. Although the Council determined that it would be inappropriate for the City to limit its potential remedies for a future default condition, it also confirmed that one of the key goals when the City of St. Louis Park originally financed the Louisiana Court project was to “maintain and stabilize affordable housing”. Steve Bubul, Kennedy & Graven, advised the Council that even if the City were to actually foreclose or receive a deed in lieu of foreclosure sometime in the future, the City would still be required to comply with the tax credit requirement that tenants can’t be evicted other than for good cause; and, that their rents can’t be increased (except to the extent otherwise permitted under tax credit rules) for 3 years after the foreclosure (or deed in lieu). This requirement encourages the continued operation of Louisiana Court as affordable housing even if foreclosure takes place. As noted in Mark’s memo, ESIC has not made a request that the City to waive its right to foreclose and their preliminary financial projections have not shown any necessary reduction in debt service in 2010. Although Council expressed their hope that additional improvements to the development will resolve the ongoing financial problems and stabilize the project beyond 2010, all agreed that a back-up plan (exit strategy) should be developed should Louisiana Court go into default even after the current round of capital improvements are completed and other Stabilization Plan initiatives are implemented. While ESIC’s financial commitment to the project greatly reduces the risk of default, staff will continue to monitor the project and prepare contingency plans. Meanwhile, progress continues to be made in the management operations at the development. Leasing activity has increased over the last several months reducing the number of vacancies from 41 to 19. Future leasing of units to the 12 Vail Place clients should further reduce the vacancies at the development. The Police Department reports that calls for service at St. Louis Park Council Meeting Item: 121905 - 8g - Approval Deferred Loan To PPL Page 5 Louisiana Court has also dropped in recent weeks as management continues efforts to address non-lease compliant residents. Perspectives, PPL and the Police Department are collaborating on the submission of a joint grant application to the Department of Public Safety - Problem Solving Grant to improve livability, reduce crime and improve community relations at Louisiana Court. Next Steps: Staff will work with the City’s legal and financial consultants to undertake the steps required and prepare the documents needed to utilize CDBG and TIF funds from the Park Center TIF District to finance a deferred loan for $400,000 to the Louisiana Court Limited Partnership, and prepare the necessary documents in accordance with the terms as discussed with the Council for approval contingent upon ESIC replacing US Bank as Louisiana Court’s Limited Partner. A resolution directing staff to take the necessary action for the $400,000 is attached for the City Council approval. Attachments: Resolution Ehler’s Memo ESIC Background Information ESIC Minnesota Fact Sheet Prepared By: Michele Schnitker, Housing Supervisor Reviewed By: Kevin Locke, Community Development Director Approved By: Nancy Gohman, Deputy City Manager/HR Director St. Louis Park Council Meeting Item: 121905 - 8g - Approval Deferred Loan To PPL Page 6 RESOLUTION NO. 05-191 RESOLUTION DIRECTING CITY STAFF TO PREPARE THE REQUIRED DOCUMENTS TO PROVIDE A $400,000 DEFERED LOAN TO THE LOUISIANA COURT LIMITED PARTNERSHIP TO ASSIST WITH CAPITAL IMPROVEMENTS AT LOUISIANA COURT WHEREAS, the Louisiana Court Limited Partnership has requested $400,000 from the City of St. Louis Park to assist in funding capital improvements at the Louisiana Court apartment complex; and WHEREAS, Project for Pride in Living has developed a Stabilization Plan, of which one component is the completion of additional capital improvements, to improve the operational and financial performance of Louisiana Court; and WHEREAS, the various funding partners, including the City, agree that additional capital improvements to the Louisiana Court development will improve marketability of the project, lower maintenance costs, increase the future value of the property and improve the long-term financial strength of the project; and WHEREAS, the various funding partners, including the City, agree that when the Louisiana Court project was first undertaken, the goal was that the development be revitalized and maintained as an important community asset and an attractive affordable housing option for the residents of St. Louis Park for many years to come and that this is still a viable goal; and WHEREAS, adequate Community Development Block Grant funds and Tax Increment Financing funds from the Park Center TIF District are available to fund a $400,000 deferred loan; NOW, THEREFORE BE IT RESOLVED, that the City Council of St. Louis Park direct staff to undertake the steps required to utilize CDBG and excess TIF funds from the Park Center TIF District to finance a deferred loan in the amount of $400,000 to the Louisiana Court Limited Partnership, and prepare the necessary documents in accordance with the terms as discussed with the Council for approval. Reviewed for Administration Adopted by the City Council December 19, 2005 City Manager Mayor Attest: City Clerk St. Louis Park Council Meeting Item: 121905 - 8g - Approval Deferred Loan To PPL Page 7 To: Michelle Schnitker, City of St. Louis Park From: Mark Ruff Date: May 1, 2018 Subject: Louisiana Court You have requested that we review and comment on a draft letter of understanding between PPL and The Enterprise Social Investment Corporation (“ESIC”) dated October 19, 2005. ESIC is proposing to replace U.S. Bank as limited partner and invest approximately $1,500,000 in additional equity in the project through the acquisition of U.S. Bank’s existing low income tax credits and syndication of the additional credits received from MHFA in 2005. I spoke with PPL representatives today. There is no updated agreement between ESIC and PPL at this time. ESIC is in the latter stages of its own internal evaluation of the amount of necessary rehabilitation, the expected vacancies and operating costs, and the amount of estimated operating reserve. Preliminary Agreement between ESIC and PPL The October, 19, 2995, letter contains the following assumptions: ü ESIC will deposit $455,000 in cash at closing to be used for the purposes of $191,000 of additional rehab, $150,000 in operating reserve and $114,000 in developer fee to PPL. ü PPL will be obligated to advance funds needed to cover all operating deficits until the project has achieved three consecutive months of breakeven operations up to an amount of the $114,000 developer fee and all deficits after 93% lease up to a maximum of $252,000 for the compliance period. ü An additional $1,096,990 of funds will be established as a debt service reserve to be used no later than 2010 but earlier if necessary to cover shortfalls after the PPL guarantees. ü Project cash flows attached to the letter show an expected break-even scenario before replacement reserves of $40,000 to $50,000 per year are set aside. The $150,000 operating reserve is projected to cover any shortfalls until 2010 when the $1,096,990 in debt service reserve is funded by ESIC. These cash flows assume 7% vacancy, $5,030 per unit in total expenses including $105,000 in property taxes in the first year, and full debt service payments, even after 2010. ü PPL is obligated to deliver a lien free, “within budget” rehabilitation project. ü PPL will receive an annual partnership administration fee of up to $20,000 per year. MEMO St. Louis Park Council Meeting Item: 121905 - 8g - Approval Deferred Loan To PPL Page 8 The letter does not specify the amount of rehabilitation expected for the project in 2005. As stated above, we expect that the amount of rehab will be a result of ESIC’s internal review. It is also not clear if PPL will put its developer fee into the rehab fund in 2005. The amount of unused PPL guarantees left over from the U.S. Bank agreement is also not disclosed. The letter of understanding is signed, but there were handwritten notes in the margins with different cash requirements. PPL indicates that the amounts of the cash requirements have not yet been resolved. Analysis U.S. Bank was a distant and hands-off partner, at best, in this project. U.S. Bank took a substantial loss to exit the project at this time. ESIC appears to be a much more involved and thoughtful partner than U.S. Bank, which is a good sign for the City and the other funding partners. While U.S. Bank repeatedly requested that the City reduce the projects debt burden when the bonds are callable in 2010, ESIC’s preliminary projections have not shown any necessary reduction in debt service. ESIC’s local staff presence is also a benefit. It appears that PPL will have a significant incentive to perform to avoid further payments to the project. We recommend the City continue its commitments to the project and the rehabilitation. The exact amount of City assistance should be dependent staff’s final review of ESIC’s amount of the rehabilitation budget and the projections for revenues and expenditures. St. Louis Park Council Meeting Item: 121905 - 8h - 2006 Compensation Report Page 1 8h. Resolution to confirm 2006 employee compensation Recommended Action: Motion to adopt a resolution confirming a 3% general increase for non-union employees, setting the salary for City Manager, updating the car allowance in the Personnel Manual and increasing Performance Program Pay fo r Paid-on-Call Firefighters for 2006. Our compensation plan, adopted by Council in 1997, allows the City Manager to approve the standard adjustment each year for employees. The 2006 budget allows for a 3% standard adjustment. This report outlines the method used for setting the wage adjustment and recommends Council action to approve several other compensation matters. Background A. Non-Union Employee Compensation – Consultant Review Our compensation plan, which was adopted in 1997, allows the City Manager to approve the standard adjustment by considering market data for public sector positions and general financial conditions of the City. Review of the market was conducted by Rod Kelsey, Compensation Consultant, Principal and Vice President of Riley, Dettmann & Kelsey. Mr. Kelsey reviewed the salaries of St. Louis Park in comparison with cities of population over 25,000 (Stanton Group V), as required in our compensation plan. ICMA regional salary data was used to review and set a salary range for the City Manager. Our Consultant determined that the pay maximums for St. Louis Park should increase an overall 3%. It was also recommended that the salary range for the City Manager also increase 3% based on the ICMA regional salary data. City Manager Recommendation Regarding Setting Non-Union Salary for 2006 Upon review of market data and recommendations from our Compensation Consultant, the City Manager has approved a standard wage adjustment for non-union employees of 3%, effective January 1, 2006. The 3% increase will be applied in accordance with our compensation plan. In our plan, after successful completion of probation (typically six months), a position receives double the standard increase to step through the pay range. This type of pay progression continues until the pay line is reached, which is the maximum of the pay range. Positions at the maximum will receive the standard adjustment of 3%, positions progressing through the range will receive up to double the 3% or to the pay line, whichever is reached first. B. Salary Cap & City Manager Salary New information from MN on salary cap states that effective August 1, 2005, local governments may compensate an employee up to $132,333 annually without asking for a waiver from the Department of Employee Relations. The $132,333 will be increased on January 1, 2006 in accordance with the Consumer Price Index (CPI). Effective January 1, 2006 the new limit will be $138,023. St. Louis Park Council Meeting Item: 121905 - 8h - 2006 Compensation Report Page 2 City Manager: The annual salary in 2005 for City Manager is $127,200. Car allowance is $600/month. Since 2004, we have paid $330/month of the car allowance directly as business use and $270/month is counted toward the salary cap. The contract for the City Manager states that base salary and benefits be set when salaries are established for other non-union employees. After review of the regional market data in the United States, our Consultant recommends Council increase the pay range for the City Manager by 3% and setting the range at $118,550 to $139,470. To move this position through the range in accordance with our pay plan (as described in Section A above), the compensation level for the City Manager is recommended to be set at $134,783. Car allowance will be handled in the same manner as we have since 2004. The 2006 salary, as recommended, falls within the salary cap requirements. C. Car Allowance We are recommending updating our car allowance policy to equalize distributions. We have nine Department Heads, of which two have take home vehicles for emergency use (Police and Fire) and four receive a car allowance of $300/month. We are interested in parity in issuance of car allowance for our Directors and recommend that the positions of Deputy City Manager, Director of Technology and Director of Finance also receive a car allowance starting in 2006. Also, two of our Superintendents and the Manager of Buildings and Structures (Recreation) receive $250/month car allowance and one does not, which is the Park Superintendent. We recommend parity in this grouping with car allowance and recommend the Park Superintendent also receive the $250/month starting in 2006. The level of the allowance would stay the same (no increase recommended). With changes in duties and responsibilities and expectations of the positions above, we believe that it is important that we treat our positions in an equitable manner. This allows us to treat positions equally. The attached Resolution and Appendix A modifies the Personnel Policy language to include all Directors and the Park Superintendent as follows: In lieu of mileage reimbursement, the City will provide a car allowance as follows: • $300 per month for Department Directors • $250 per month for Manager of Buildings and Structures, Operations Superintendent, Utility Superintendent, Police Captain and Parks Superintendent (Car allowance is not eligible to positions assigned take home cars.) D. Paid-on-Call Firefighter Performance Program Our Paid-on-Call Firefighter Performance Program system was established in 1996. The Performance Program system was designed for our Paid-on-Call Firefighters to be competitive with our volunteer neighbors, and alleviate the need of a Fire Department Relief Association. The Performance Program is reviewed annually. For 2006, the Fire Chief has recommended a 3% increase to this program, effective January 1, 2006. (Payment is typically made at year end based on performance as approved by the Fire Chief). St. Louis Park Council Meeting Item: 121905 - 8h - 2006 Compensation Report Page 3 E. Budget All items listed above are included in the 2006 budget. Recommendation Staff recommends approval of the attached Resolution which will: • Confirm the City Manager’s decision to set the standard adjustment at 3% for 2006 for non-union employees. • Approve salary for City Manager. • Approve updating the car allowance section of the Personnel Manual. • Approve the 2006 Performance Program for Paid-on-Call Firefighters. Attachments: Resolution Appendix A for Personnel Manual Prepared & Approved by: Nancy Gohman, Deputy City Manager/Human Resources Director St. Louis Park Council Meeting Item: 121905 - 8h - 2006 Compensation Report Page 4 RESOLUTION NO. 05-185 RESOLUTION CONFIRMING A GENERAL INCREASE FOR NON-UNION EMPLOYEES; SETTING SALARY FOR THE CITY MANAGER, UPDATING THE CAR ALLOWANCE SECTION OF THE PERSONNEL POLICY AND INCREASING PERFORMANCE PROGRAM PAY FOR PAID-ON-CALL FIREFIGHTERS WHEREAS, the City Council established and approved, by Resolution, the Position Classification and Compensation Plan for the City of St. Louis Park, and Section VIII-C of such Plan directs the City Manager to approve the standard adjustment to the Plan; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of St. Louis Park: A. The Council confirms the City Manager’s decision to implement a standard adjustment of 3%, effective January 1, 2006 for non-union employees in accordance with the Position Classification and Compensation Plan. B. Effective January 1, 2006, Council approves a salary of $134,783 for the City Manager, not including car allowance. Salary application must comply with the salary limitations set by statute, therefore, car allowance remains at $600/month per contract and is paid out as $330/month directly as business use and $270/month is counted toward the salary cap. C. Effective January 1, 2006, the update of the car allowance section of the Personnel Manual is approved and is attached as Appendix A. D. The Council approves a 3% percentage increase in the Paid-on-Call Firefighters 2006 Performance Program, effective January 1, 2006. Performance Program: Paid-on-Call Firefighters For 0 – 23 months of service, Paid-on-Call Firefighters are eligible to receive a monthly amount. After 23 months, they are eligible to receive an annual amount. This amount may be pro-rated for actual number of months worked. All amounts after the 23 month timeframe show annual amounts and should be adjusted accordingly as follows: St. Louis Park Council Meeting Item: 121905 - 8h - 2006 Compensation Report Page 5 Reviewed for Administration: Adopted by the City Council December 19, 2005 City Manager Mayor Attest: City Clerk Years of Service 2006 Annual Up to 23 Months of Service N/A 2 $1,669 3 $1,792 4 $1,928 5 $2,052 6 $2,175 7 $2,299 8 $2,435 9 $2,559 10 $2,682 11 $2,818 12 $2,954 13 $3,078 14 $3,214 15 $3,337 16 $3,461 17 $3,584 18 $3,720 19 $3,844 20 $3,968 St. Louis Park Council Meeting Item: 121905 - 8h - 2006 Compensation Report Page 6 APPENDIX A RESOLUTION NO. 05-_________ RESOLUTION TO UPDATE THE CAR ALLOWANCE SECTION OF THE CITY OF ST. LOUIS PARK PERSONNEL MANUAL Car Allowance In lieu of mileage reimbursement, the City will provide a car allowance as follows: • $300 per month for Department Directors • $250 per month for Manager of Buildings and Structures, Operations Superintendent, Utility Superintendent, Police Captain and Parks Superintendent (Car allowance is not eligible to positions assigned take home cars.) The City Manager has the discretion of eliminating any car allowance given by providing the individual with a 30 calendar day written notice.