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Home My WebLink About2016 02-08 City Council Meeting PacketAGENDA MAPLEWOOD CITY COUNCIL 7:00 P.M. Monday, February 8, 2016 City Hall, Council Chambers Meeting No. 03-16 A. CALL TO ORDER B. PLEDGE OF ALLEGIANCE C. ROLL CALL Mayor’s Address on Protocol: “Welcome to the meeting of the Maplewood City Council. It is our desire to keep all discussions civil as we work through difficult issues tonight. If you are here for a Public Hearing or to address the City Council, please familiarize yourself with the Policies and Procedures and Rules of Civility, which are located near the entrance. Sign in with the City Clerk before addressing the council. At the podium please state your name and address clearly for the record. All comments/questions shall be posed to the Mayor and Council. The Mayor will then direct staff, as appropriate, to answer questions or respond to comments.” D. APPROVAL OF AGENDA E. APPROVAL OF MINUTES 1. Approval of January 25, 2016 City Council Workshop Minutes 2. Approval of January 25, 2016 City Council Meeting Minutes F. APPOINTMENTS AND PRESENTATIONS 1. Administrative Presentations a. Council Calendar Update 2. Council Presentations 3. Presentation of Energy Use Report at Maplewood Fire Station No. 1, 600 McKnight Road North G. CONSENT AGENDA – Items on the Consent Agenda are considered routine and non- controversial and are approved by one motion of the council. If a councilmember requests additional information or wants to make a comment regarding an item, the vote should be held until the questions or comments are made then the single vote should be taken. If a councilmember objects to an item it should be removed and acted upon as a separate item. 1. Approval of Claims 2. Approval of Resolution Accepting Assessment Roll and Ordering Assessment Hearing for March 14, 2016, Bellaire Avenue Street Improvements, Project 15-16 3. Approval of Resolution Directing Modification of Existing Construction Contract, Change Order No. 1, East Metro Public Safety Training Center Phase I Bid Package 5C Classroom Building 4. Approval of Resolution Accepting State Aid Advancement 5. Approval of Transfers from Tax Increment Funds for 2015 6. Approval of 2015 Carryovers and Transfers 7. Approval of 2015 Transfer to Close Public Improvement Project Fund 8. Approval to Transfer Funds Regarding Tax Abatement Note 9. Approval of Resolution for 2016 Pay Rates for Non-Union, Non-Contract Employees 10. Approval of Resolution for 2016 Pay Rates for Temporary/Seasonal and Casual Part-Time Employees Sign language interpreters for hearing impaired persons are available for public hearings upon request. The request for this must be made at least 96 hours in advance. Please call the City Clerk’s Office at 651.249.2000 to make arrangements. Assisted Listening Devices are also available. Please check with the City Clerk for availability. RULES OF CIVILITY FOR THE CITY COUNCIL, BOARDS, COMMISSIONS AND OUR COMMUNITY Following are rules of civility the City of Maplewood expects of everyone appearing at Council Meetings - elected officials, staff and citizens. It is hoped that by following these simple rules, everyone’s opinions can be heard and understood in a reasonable manner. We appreciate the fact that when appearing at Council meetings, it is understood that everyone will follow these principles: Speak only for yourself, not for other council members or citizens - unless specifically tasked by your colleagues to speak for the group or for citizens in the form of a petition. Show respect during comments and/or discussions, listen actively and do not interrupt or talk amongst each other. Be respectful of the process, keeping order and decorum. Do not be critical of council mem bers, staff or others in public. Be respectful of each other’s time keeping remarks brief, to the point and non-repetitive. 11. Approval of JPA for Dispatching the Fire Department’s Closest Unit 12. Approval of Resolution Accepting a Donation of Chocolate from Costco 13. Approval of a Temporary Lawful Gambling - Local Permit for the Ramsey County Pheasants Forever at Gulden’s Restaurant, 2999 Maplewood Drive 14. Approval of a Temporary Lawful Gambling - Local Permit for the Knights of Columbus Council #4374, 1725 Kennard Street 15. Approval of Revised Consulting Contract with Carey Communication 16. Approval of Purchase Agreement for Londin Lane Property H. PUBLIC HEARINGS 1. Public Hearing on the Proposed Franchise Ordinance Granting CenturyLink a Franchise for Providing Cable Services in Maplewood – Second Reading a. Consider Approval of Second Reading of Franchise Ordinance b. Consider Approval of Summary of Franchise Ordinance for Publication I. UNFINISHED BUSINESS None J. NEW BUSINESS 1. Consider Approval of the Senior Task Force Report 2. Consider Approval of Penalties for Alcohol Compliance Failures 3. Beebe Road Street Improvements, Project 13-10 a. Consider Approval of Resolution Approving Plans and Specifications and Advertising for Bids b. Consider Approval of Resolution Ordering Preparation of Assessment Roll 4. Lakewood-Sterling Area Street Improvements, Project 15-11 a. Consider Approval of Resolution Approving Plans and Specifications and Advertising for Bids b. Consider Approval of Resolution Ordering Preparation of Assessment Roll K. AWARD OF BIDS None L. VISITOR PRESENTATIONS – All presentations have a limit of 3 minutes. M. ADJOURNMENT E1 January 25, 2016 City Council Workshop Minutes 1 MINUTES MAPLEWOOD CITY COUNCIL MANAGER WORKSHOP 5:00 P.M. Monday, January 25, 2016 Council Chambers, City Hall A. CALL TO ORDER A meeting of the City Council was held in the City Hall Council Chambers and was called to order at 5:15 p.m. by Mayor Slawik. B. ROLL CALL Nora Slawik, Mayor Present Marylee Abrams, Councilmember Present Kathleen Juenemann, Councilmember Present Bryan Smith, Councilmember Present Tou Xiong, Councilmember Present C. APPROVAL OF AGENDA Councilmember Abrams moved to approve the agenda as submitted. Seconded by Councilmember Juenemann Ayes – All The motion passed. D. UNFINISHED BUSINESS None E. NEW BUSINESS 1. Commissioner Interviews The following individuals were interviewed for the commission listed. 1. Tou Ger Yang, Human Rights Commission 2. Mary Henderson, Environmental & Natural Resources Commission 3. Brian Finley, Housing & Economic Development Commission 4. Keith Buttleman, Environmental & Natural Resources Commission 5. Bob Cardinal, Heritage Preservation Commission F. ADJOURNMENT Mayor Slawik adjourned the meeting at 6:25 p.m. Packet Page Number 1 of 184 E2 1 January 25, 2016 City Council Meeting Minutes MINUTES MAPLEWOOD CITY COUNCIL 7:00 P.M. Monday, January 25, 2016 City Hall, Council Chambers Meeting No. 02-16 A. CALL TO ORDER A meeting of the City Council was held in the City Hall Council Chambers and was called to order at 7:03 p.m. by Mayor Slawik. Mayor Slawik thanked the council and staff for attending the State of the City Address that was held at the Maplewood Community Center on Thursday, January 21, 2016. She also encouraged residents to watch the replays that will posted on the City’s website. B. PLEDGE OF ALLEGIANCE Hannah Bruentrup, student at Mahtomedi Middle School led the council in the pledge of allegiance. C. ROLL CALL Nora Slawik, Mayor Present Marylee Abrams, Councilmember Present Kathleen Juenemann, Councilmember Present Bryan Smith, Councilmember Present Tou Xiong, Councilmember Present D. APPROVAL OF AGENDA The following items were added to the agenda under Appointments and Presentations, Council Presentations: a. Recycle the Holidays b. Energize Maplewood c. Update on Gateway Commission d. Update on Tartan Ice Arena Commission e. Comments and Follow-Up to League of Minnesota Cities Training f. Business Networking and Recycling Event g. Planning Commission Meeting Cancellation h. Heritage Preservation Commission i. League of Minnesota Cities Training j. Rush Line Corridor Councilmember Xiong moved to approve the agenda as amended. Seconded by Councilmember Juenemann Ayes – All The motion passed. Packet Page Number 2 of 184 E2 2 January 25, 2016 City Council Meeting Minutes E. APPROVAL OF MINUTES 1. Approval of January 11, 2016 City Council Meeting Minutes Councilmember Abrams moved to approve the January 11, 2016 City Council Meeting Minutes as submitted. Seconded by Councilmember Juenemann Ayes – All The motion passed. F. APPOINTMENTS AND PRESENTATIONS 1. Administrative Presentations a. Council Calendar Update City Manager Coleman gave an update to the council calendar. 2. Council Presentations a. Recycle the Holidays Councilmember Juenemann reminded residents that it’s their last chance to recycle their Holiday lights at City Hall, the Community Center or the Nature Center. b. Energize Maplewood Councilmember Juenemann reported on the Energize Maplewood Challenge that is taking place and encouraged residents to sign up by February 29, 2016; a launch event will take place at the Maplewood Community Center on Saturday, January 30, 2016. c. Update on Gateway Commission Councilmember Smith gave an update on the Gateway Commission Meeting he attended on Thursday, January 14, 2016. Public Works Director Thompson provided additional information on the Technical Committee Meeting he attended on Thursday, January 21, 2016. d. Update on Tartan Ice Arena Commission Councilmember Smith gave an update on the Tartan Arena Commission Meeting he and Councilmember Xiong attended. e. Comments and Follow-Up to League of Minnesota Cities Training Councilmember Smith reported on the training he attended at the League of Minnesota Cities. f. Business Networking and Recycling Event Packet Page Number 3 of 184 E2 3 January 25, 2016 City Council Meeting Minutes Councilmember Abrams reported on the Business Networking and Recycling Event that will take place at the Maplewood Community Center on Tuesday, January 26, 2016. g. Planning Commission Meeting Cancellation Councilmember Xiong reported that the Planning Commission Meeting scheduled for January 19, 2016 was cancelled. The next meeting of the Commission will take place on February 2, 2016. h. Heritage Preservation Commission Councilmember Xiong provided an update on the Heritage Preservation Commission meeting he attended on Thursday, January 14, 2016. i. League of Minnesota Cities Training Councilmember Xiong reported on the training session for Newly Elected Officials at the League of Minnesota Cities. j. Rush Line Mayor Slawik reported on the Rush Line Meeting she attended. Interim Economic & Environmental Development Director Carver provided additional information. 3. Presentation by Maplewood Pediatric Dentistry Interim Environmental & Economic Development Director Carver introduced Claire Mielke, DDS and her husband Bryant Rogness, owners of Maplewood Pediatric Dentistry. Claire Mielke, DDS and Bryant Rogness addressed the council to give information about their business, Maplewood Pediatric Dentistry. 4. Approval of Resolution Awarding 2015 Maplewood Heritage Award Mayor Slawik read the Resolution Awarding the 2016 Maplewood Heritage Award to the Bruentrup Family. Bill Bruentrup introduced his family and thanked everyone for their support of the Bruentrup Farm. Mayor Slawik read and presented the 2016 Maplewood Heritage Award plaque to the Bruentrup Family. Councilmember Juenemann moved to approve the Resolution for the 2015 Maplewood Heritage Award to the Bruentrup Family. Resolution 16-01-1295 RESOLUTION AWARDING THE 2015 MAPLEWOOD HERITAGE AWARD TO THE BRUENTRUP FAMILY Packet Page Number 4 of 184 E2 4 January 25, 2016 City Council Meeting Minutes WHEREAS, Bill and Raydelle Bruentrup have been at the center of historical activity in Maplewood for over sixteen years; and WHEREAS, Bill and Raydelle Bruentrup have been active members of the Maplewood Area Historical Society, and currently serve as Vice President and Secretary respectively, and volunteer more hours annually than any other member; and WHEREAS, Bill and Raydelle Bruentrup were instrumental in moving the Bruentrup farm buildings to their new location in July 1999, with tireless efforts obtaining pledges from individuals and seeking funding from the state for moving expenses, donating the farm buildings to the city, and contributing funds to the project; and WHEREAS, The Bruentrup Heritage Farm site with their assistance has won historical preservation awards and has become a destination for weddings, community gatherings and a mecca for historical research; and WHEREAS, Bill and Raydelle Bruentrup’s children and grandchildren have been an important part of the preservation of the farm volunteering countless hours to improve the grounds, as well as volunteering at the Maplewood Area Historical Society’s annual Halloween Hoedown; and WHEREAS, The Bruentrup Family members have freely given their knowledge, time and energy, without compensation, for the betterment of the City of Maplewood; and WHEREAS, The Bruentrup Family has contributed their leadership and effort for the benefit of the City. NOW, THEREFORE, IT IS HEREBY RESOLVED for and on behalf of the City of Maplewood, Minnesota and its citizens that The Bruentrup Family is hereby extended the Maplewood Heritage Award. The Maplewood Heritage Award is an annual award recognizing an individual or group who has positively influenced our City’s past or strengthened the preservation of Maplewood history. Seconded by Councilmember Abrams Ayes – All The motion passed. 5. Approval of the 2015 Planning Commission Annual Report Planning Commissioner Kempe addressed the council and gave the 2015 Planning Commission Annual Report. Councilmember Abrams moved to approve the 2015 Planning Commission Annual Report. Seconded by Councilmember Juenemann Ayes – All The motion passed. Packet Page Number 5 of 184 E2 5 January 25, 2016 City Council Meeting Minutes 6. Approval of Resolution for Commission and Board Appointments and Reappointments a. Approval of Resolution for Appointments b. Approval of Resolution for Reappointments City Manager Coleman gave the staff report. Councilmember Juenemann moved to approve the Resolution Appointing Candidates to Commissions. Resolution 16-01-1296 BE IT RESOLVED THAT THE CITY COUNCIL OF MAPLEWOOD, MINNESOTA: Hereby appoints the following individuals, who have interviewed with the Maplewood City Council, to serve on the following commissions: Environmental & Natural Resources Commission Keith Buttlemann Term expires 9/30/2018 Mary Henderson Term expires 9/30/2016 Heritage Preservation Commission Bob Cardinal Term expires 4/30/2018 Housing and Economic Development Commission Brian Finley Term expires 9/30/2017 Human Rights Commission Tou Ger Yang Term expires 4/30/2017 Seconded by Councilmember Abrams Ayes – All The motion passed. Councilmember Abrams moved to approve the Resolution Reappointing Lisa Liddell to the Police Civil Service Commission. Resolution 16-01-1297 BE IT RESOLVED THAT THE CITY COUNCIL OF MAPLEWOOD, MINNESOTA: Hereby appoints the following individuals, who the Maplewood City Council has reviewed, to serve on the following commissions: Police Civil Service Commission Lisa Liddell Term expires 12/31/2018 Packet Page Number 6 of 184 E2 6 January 25, 2016 City Council Meeting Minutes Seconded by Councilmember Smith Ayes – All The motion passed. G. CONSENT AGENDA Councilmember Juenemann moved to approve consent agenda items G1-G12. Seconded by Councilmember Abrams Ayes – All The motion passed. 1. Approval of Claims Councilmember Juenemann moved to approve the approval of claims. ACCOUNTS PAYABLE: $ 74,953.14 Checks # 96599 thru # 96635 dated 01/12/16 $ 282,869.32 Disbursements via debits to checking account dated 01/04/16 thru 01/08/16 $ 382,073.42 Checks #96637 thru #96673 dated 01/12/16 thru 01/19/16 $ 219,029.64 Disbursements via debits to checking account dated 01/11/16 thru 01/15/16 $ 958,925.52 Total Accounts Payable PAYROLL $ 540,160.62 Payroll Checks and Direct Deposits dated 01/15/16 $ 1,310.03 Payroll Deduction check # 99101999 thru # 99102001dated 01/15/16 $ 541,470.65 Total Payroll $ 1,500,396.17 GRAND TOTAL Seconded by Councilmember Abrams Ayes – All The motion passed. 2. Approval of Waterfest Sponsorship Councilmember Juenemann moved to approve the Waterfest Sponsorship in the amount of $1,000 to help support the Ramsey-Washington Metro Watershed District’s Waterfest Packet Page Number 7 of 184 E2 7 January 25, 2016 City Council Meeting Minutes event scheduled for June 4, 2016, at Lake Phalen in St. Paul. Seconded by Councilmember Abrams Ayes – All The motion passed. 3. Approval of a Conditional Use Permit Review for Indoor Storage, 2728 Geranium Avenue East Councilmember Juenemann moved to approve the conditional use permit for 2728 Geranium Avenue East again only if a problem arises or a major change is proposed. Seconded by Councilmember Abrams Ayes – All The motion passed. 4. Approval of 2016 Master Group Contract Between City of Maplewood and Medica Insurance Company Councilmember Juenemann moved to approve the master group contract with Medica Insurance Company for 2016. Seconded by Councilmember Abrams Ayes – All The motion passed. 5. Approval of a Resolution Accepting Donation to Maplewood Nature Center in Honor of Janet Plaster Councilmember Juenemann moved to approve the Resolution accepting the memorial donation in the amount of $35 to the Maplewood Nature Center in remembrance of Janet Plaster Resolution 16-01-1298 Acceptance of Donation WHEREAS the City of Maplewood and the Parks and Recreation Department has received a donation of $35 in remembrance of Janet Plaster; NOW, THEREFORE, BE IT RESOLVED that the Maplewood City Council authorizes the City of Maplewood, Parks and Recreation Department to accept this donation. Seconded by Councilmember Abrams Ayes – All The motion passed. 6. Approval of a Resolution Accepting Donation to Maplewood Nature Center in Honor of Jeffrey Lerew Councilmember Juenemann moved to approve the Resolution accepting the memorial donation in the amount of $300 from Yolanda Black to the Maplewood Nature Center in Packet Page Number 8 of 184 E2 8 January 25, 2016 City Council Meeting Minutes remembrance of Jeffrey Lerew. Resolution 16-01-1299 Acceptance of Donation WHEREAS the City of Maplewood and the Parks and Recreation Department has received a donation of $300 in remembrance of Jeffrey Lerew; NOW, THEREFORE, BE IT RESOLVED that the Maplewood City Council authorizes the City of Maplewood, Parks and Recreation Department to accept this donation. Seconded by Councilmember Abrams Ayes – All The motion passed. 7. Approval of Quit Claim Deed From City of Maplewood to Ramsey County, TH 120/Joy Rd Intersection Improvements, City Project 02-01 Councilmember Juenemann moved to approve the quit claim and authorize the Mayor and City Manager to sign said quit claim deed signifying City Council approval. Seconded by Councilmember Abrams Ayes – All The motion passed. 8. Approval of Emergency Pipe Collapse Repair Under Trail at Wicklander’s Pond Councilmember Juenemann moved to approve the proposal from Visu-Sewer to repair the collapsed pipe under the trail at Wicklander’s Pond; the Public Works Director is authorized to sign said proposal on behalf of the City and set a budget for this project at $50,000.00 from the EUF. Seconded by Councilmember Abrams Ayes – All The motion passed. 9. Approval of Resolution Approving Cost Share Agreement with the Metropolitan Council for Inflow/Infiltration Improvements Councilmember Juenemann moved to approve the Resolution of Cost Share Agreement with the Metropolitan Council for Inflow/Infiltration Improvements and approve the Inflow/Infiltration Cost Share Agreement with the Metropolitan Council; and direct the City Engineer to enter into the cost share agreement and minor modifications approved by the City Attorney are authorized as needed for the agreement. Resolution 16-01-1300 Approval of Cost Share Agreement with the Metropolitan Council for Inflow/Infiltration Improvements Packet Page Number 9 of 184 E2 9 January 25, 2016 City Council Meeting Minutes WHEREAS, the City Council of Maplewood, Minnesota has heretofore approved the cost share agreement between the City of Maplewood and the Metropolitan Council for inflow/infiltration improvements. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF MAPLEWOOD, MINNESOTA, that: 1. The City Engineer is hereby authorized to enter into the cost share agreement. Seconded by Councilmember Abrams Ayes – All The motion passed. 10. Approval of Resolution Approving Final Payment and Acceptance of Project, Arkwright-Sunrise Area Improvements, City Project 12-09 Councilmember Juenemann moved to approve the Resolution Approving Final Payment and Acceptance of Project for the Arkwright-Sunrise Area Improvements, City Project 12-09. Resolution 16-01-1301 Approving Final Payment and Acceptance of Project Project 12-09 WHEREAS, the City Council of Maplewood, Minnesota has heretofore ordered the Arkwright-Sunrise Area Improvements, City Project 12-09, and has let a construction contract, and WHEREAS, the City Engineer for the City of Maplewood has determined that the Arkwright-Sunrise Area Improvements, City Project 12-09 is complete and recommends acceptance of the project. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF MAPLEWOOD, MINNESOTA, that: City Project 12-09 is complete and maintenance of this improvement is accepted by the City; the final construction cost is $4,011,158.65. Final payment to Palda and Sons, Inc. and the release of any retainage or escrow is hereby authorized. Seconded by Councilmember Abrams Ayes – All The motion passed. 11. Approval for Police Department to Accept Donation from Schmelz Countryside Volkswagen Councilmember Juenemann moved to approve the resolution accepting a $2,500 donation from Schmelz Countryside Volkswagen and authorize the establishment of a donation fund to be used for senior citizen and child-focused public safety prevention and intervention initiatives. Packet Page Number 10 of 184 E2 10 January 25, 2016 City Council Meeting Minutes Resolution 16-01-1302 Expressing Acceptance of and Appreciation of a Donation to the Maplewood Police Department WHEREAS, Schmelz Countryside Volkswagen has presented to the Maplewood Police Department a donation in the amount of $2,500; and WHEREAS, this donation is intended for the purpose of youth and senior citizen prevention programming; and WHEREAS, the Maplewood City Council is appreciative of the donation and commends John Schmelz and Schmelz Countryside Volkswagen for their civic efforts, NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Maplewood, Minnesota, that: 1. The donation is accepted and acknowledged with gratitude; and 2. The donation will be appropriated for the Police Department as designated; and 3. The appropriate budget adjustments be made. Seconded by Councilmember Abrams Ayes – All The motion passed. 12. Approval of Contract with Hillcrest Animal Hospital for Animal Impound and Associated Services Councilmember Juenemann moved to approve the contract between Hillcrest Animal Hospital and the City of Maplewood for Animal Impound and Associated Services. Seconded by Councilmember Abrams Ayes – All The motion passed. H. PUBLIC HEARINGS None I. UNFINISHED BUSINESS 1. Approval of a Tree Ordinance Summary Publication (Super Majority Vote) Nick Carver, Interim Environmental and Economic Development Director gave the staff report and answered questions of the council. Councilmember Juenemann moved to approve the Tree Ordinance summary publication to be published in Lillie News, the City’s official newspaper. Seconded by Councilmember Abrams Ayes – All Packet Page Number 11 of 184 E2 11 January 25, 2016 City Council Meeting Minutes The motion passed. J. NEW BUSINESS 1. Consider Approval of Pollinator Resolution Lead Naturalist Hutchinson gave the staff report and answered questions of the council. Amanda Rudolph, works with Representative Leon Lillie, addressed the council to give additional information and answered questions of the council. Councilmember Smith moved to approve the Resolution Endorsing the Protection of Pollinators and Enhancement of Pollinator Habitat. Resolution 16-01-1303 Resolution Endorsing the Protection of Pollinators and Enhancement of Pollinator Habitat WHEREAS, the City of Maplewood is dedicated to the protection of pollinators; and WHEREAS, the City of Maplewood has many established programs and practices that help protect pollinators including preservation of natural areas, enhancing habitat including prairie restoration and use of native plants in gardens and plantings, very limited use of insecticides in the landscape, pollinator education and outreach to the community; WHEREAS, bees and other pollinators are integral to a wide diversity of essential foods including fruits, nuts, and vegetables; and WHEREAS, native bees and honey bees are threatened due to habitat loss, pesticide use, pathogens and parasites; and WHEREAS, research suggests that there is a link between pesticides that contain neonicotinoids and the die-off of plant pollinators, including honey bees, native bees, butterflies, moths, and other insects; and WHEREAS, neonicotinoids are synthetic chemical insecticides that are similar in structure and action to nicotine, a naturally occurring plant compound; and WHEREAS, the City Council finds it is in the public interest to demonstrate its commitment to a safe and healthy community environment through the implementation of practices that protect pollinators on city parks, open spaces, and city property. NOW, THEREFORE, IT IS HEREBY RESOLVED for and on behalf of the City of Maplewood, Minnesota and its citizens that: 1. The City shall undertake its best efforts to become a pollinator-friendly City by undertaking best management practices to protect pollinators on public lands within the City. 2. The City shall develop a policy for the use of insecticides and utilize best Packet Page Number 12 of 184 E2 12 January 25, 2016 City Council Meeting Minutes practices to limit the use of systemic insecticides on city property including insecticides from the neonicotinoid family and will request commercial applications are free of systemic insecticides including neonicotinoids. 3. The City shall undertake its best efforts to plant native plants and plants favorable to bees and other pollinators in the City’s public spaces. 4. The City shall undertake its best efforts to communicate to Maplewood residents the importance of creating and maintaining pollinator-friendly habitat and will encourage residents and business to use pollinator-friendly practices. Seconded by Councilmember Juenemann Ayes – All The motion passed. 2. Consider Approval of Updates to Fish Creek Master Plan Natural Resources Coordinator Gaynor gave the staff report and answered questions of the council. Councilmember Xiong moved to approve the updates to the Fish Creek Master Plan. Seconded by Councilmember Juenemann Ayes – All The motion passed. 3. Consider Approval of a New Liquor License Manager for Keller Golf Course, Blaine Raway Police Chief Schnell gave the staff report. Blaine Raway, applicant addressed the council to give additional information and answer questions of the council. Councilmember Juenemann moved to approve Blaine Raway as the liquor license manager for Keller Golf Course, 2166 Maplewood Dr. N. Seconded by Councilmember Abrams Ayes – All The motion passed. 4. Bellaire Avenue Street Improvements, Project 15-16 a. Consider Approval of Resolution Approving Plans and Specifications and Advertising for Bids b. Consider Approval of Resolution Ordering Preparation of Assessment Roll c. Consider Approval of Joint-Powers Agreement with the City of North St. Paul Michael Thompson, Public Works Director gave the staff report and answered questions of the council. Packet Page Number 13 of 184 E2 13 January 25, 2016 City Council Meeting Minutes Councilmember Juenemann moved to approve the Resolution Approving Plans and Specifications and Advertising for Bids for the Bellaire Avenue Street Improvements, Project 15-16. Resolution 16-01-1304 Approving Plans Advertising for BIDS WHEREAS, pursuant to resolution passed by the City Council on September 14, 2015 plans and specifications for the Bellaire Avenue Street Improvements, City Project 15-16, have been prepared by (or under the direction of) the City Engineer of the City of North St. Paul, who has presented such plans and specifications to the council for approval, WHEREAS, the City of Maplewood and the City of North St. Paul have entered into a Joint Powers Agreement for this project which a small portion includes a common border street of Bellaire Avenue from Beam Avenue to Lydia Avenue, WHEREAS, the City of North St. Paul is the project lead and the JPA outlines terms of repayment and duties of the municipalities in regards to the improvements on said border street, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF MAPLEWOOD, MINNESOTA: 1. Such plans and specifications, a copy of which are attached hereto and made a part hereof, are hereby approved and ordered placed on file in the office of the City Engineer. 2. The City of North St. Paul shall prepare and cause to be inserted into the Ramsey County Review and Finance and Commerce an advertisement for bids upon the making of such improvement under such approved plans and specifications. The advertisement shall be published twice, at least twenty-one days before the date set for bid opening, shall specify the work to be done, shall state that bids will be publicly opened and considered by the council at 10:00 a.m. on the 23rd day of February, 2016, at the City of North St. Paul City Hall and that no bids shall be considered unless sealed and filed with the clerk and accompanied by a certified check or bid bond, payable to the City of North St. Paul, Minnesota for five percent of the amount of such bid. 3. The City Clerk and City Engineer are hereby authorized and instructed to receive, open, and read aloud bids received at the time and place herein noted, and to tabulate the bids received. The council will consider the bids, and the award of a contract, at the regular city council meeting of March 14, 2016. Seconded by Councilmember Abrams Ayes – All The motion passed. Councilmember Juenemann moved to approve the Resolution Ordering Preparation of Assessment Roll for the Bellaire Avenue Street Improvements, City Project 15-16. Resolution 16-01-1304 Packet Page Number 14 of 184 E2 14 January 25, 2016 City Council Meeting Minutes Ordering Preparation of Assessment Roll WHEREAS, the City Clerk and City Engineer will receive bids for the Bellaire Avenue Street Improvements, City Project 15-16, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF MAPLEWOOD, MINNESOTA that the City Clerk and City Engineer shall forthwith calculate the proper amount to be specially assessed for such improvement against every assessable lot, piece or parcel of land abutting on the streets affected, without regard to cash valuation, as provided by law, and they shall file a copy of such proposed assessment in the city office for inspection. FURTHER, the clerk shall, upon completion of such proposed assessment notify the council thereof. Seconded by Councilmember Abrams Ayes – All The motion passed. Councilmember Juenemann moved to approve the Joint Powers Agreement with the City of North St. Paul for the Bellaire Avenue Street Improvements, City Project 15-16. Seconded by Councilmember Smith Ayes – Mayor Slawik, Council Members Juenemann, Smith and Xiong Abstain – Councilmember Abrams The motion passed. 5. Consider Approval of a Planned Unit Development Amendment, Design Review and a Parking Waiver, Costco, 1431 Beam Avenue East Economic Development Coordinator Martin gave the staff report and answered questions of the council. Commissioner Kempe addressed the council to give the reports from the Planning Commission and the Community Design Review Board. Shawn Murphy, Civil Engineer with Landform representing Costco addressed to give additional information and answer questions of the council. Councilmember Juenemann moved to approve the resolution approving an amendment to the planned unit development permit for a fuel station and tire service center for Costco’s proposed building expansion located at 1431 Beam Avenue East. Approval is based on the findings required by the code and subject to the following conditions: 1. The building expansion shall follow the plans date-stamped December 11, 2015, except where the city requires changes. Staff may approve minor changes. 2. The proposed construction must be substantially started within one year of council approval or the permit shall end. The council may extend this deadline for one year. 3. The city council shall review this permit in one year. Packet Page Number 15 of 184 E2 15 January 25, 2016 City Council Meeting Minutes 4. The applicant shall comply with the requirements in the engineer’s report dated December 10, 2015. 5. There shall not be any outdoor storage of tires unless they are kept within a decorative screening enclosure approved by the community design review board. 6. The fueling area shall have proper safeguards provided to prevent or contain any fuel spills as required by the Minnesota Pollution Control Agency. 7. A parking waiver of 41 spaces is approved for this site, with the applicant showing 55 proof-of-parking spaces on the December 11, 2015 site plan. If the proof-of-parking spaces are needed to be constructed, the city council must approve a revised site plan and the materials and construction methods must be environmentally-sensitive and reduce the impact of stormwater runoff the added spaces would contribute. Resolution 16-01-1306 Conditional Use Permit Revision Resolution For a Planned Unit Development WHEREAS, Costco Wholesale Corporation applied to revise its conditional use permit for the Mogren Retail Addition planned unit development by building an expansion to its existing building. This conditional use permit for a planned unit development permits a fuel station and tire-service center. WHEREAS, this permit applies to the 16-acre site located at 1431 Beam Avenue within the Mogren Retail Addition planned unit development. The legal description is: Lot 1 Block 2, MOGREN RETAIL ADDITION WHEREAS, the history of this conditional use permit is as follows: 1. On January 5, 2016, the planning commission held a public hearing. The city staff published a hearing notice in the Maplewood Review and sent notices to the surrounding property owners. The planning commission gave everyone at the hearing a chance to speak and present written statements. The planning commission recommended that the city council approve the planned unit development amendment. 2. On January 25, 2016 the city council discussed the planned unit development amendment. They considered reports and recommendations from the planning commission and city staff. NOW, THEREFORE, BE IT RESOLVED that the city council approved the above-described planned unit development amendment because: 1. The use would be located, designed, maintained, constructed and operated to be in conformity with the City’s Comprehensive Plan and Code of Ordinances. 2. The use would not change the existing or planned character of the surrounding area. Packet Page Number 16 of 184 E2 16 January 25, 2016 City Council Meeting Minutes 3. The use would not depreciate property values. 4. The use would not involve any activity, process, materials, equipment or methods of operation that would be dangerous, hazardous, detrimental, disturbing or cause a nuisance to any person or property, because of excessive noise, glare, smoke, dust, odor, fumes, water or air pollution, drainage, water run-off, vibration, general unsightliness, electrical interference or other nuisances. 5. The use would not exceed the design standards of any affected street. 6. The use would be served by adequate public facilities and services, including streets, police and fire protection, drainage structures, water and sewer systems, schools and parks. 7. The use would not create excessive additional costs for public facilities or services. 8. The use would maximize the preservation of and incorporate the site’s natural and scenic features into the development design. 9. The use would cause minimal adverse environmental effects. Approval is subject to the following conditions: 1. The building expansion shall follow the plans date-stamped December 11, 2015, except where the city requires changes. Staff may approve minor changes. 2. The proposed construction must be substantially started within one year of council approval or the permit shall end. The council may extend this deadline for one year. 3. The city council shall review this permit in one year. 4. The applicant shall comply with the requirements in the engineer’s report dated December 10, 2015. 5. There shall not be any outdoor storage of tires unless they are kept within a decorative screening enclosure approved by the community design review board. 6. The fueling area shall have proper safeguards provided to prevent or contain any fuel spills as required by the Minnesota Pollution Control Agency. 7. A parking waiver of 41 spaces is approved for this site, with the applicant showing 55 proof-of-parking spaces on the December 11, 2015 site plan. If the proof-of-parking spaces are needed to be constructed, the city council must approve a revised site plan and the materials and construction methods must be environmentally-sensitive and reduce the impact of stormwater runoff the added spaces would contribute. Seconded by Councilmember Smith Ayes – All The motion passed. Packet Page Number 17 of 184 E2 17 January 25, 2016 City Council Meeting Minutes Councilmember Juenemann moved to approve the plans date-stamped December 11, 2015, for the proposed 5,220 square foot Costco addition. Approval is subject to the applicant complying with the following conditions: 1. This approval is good for two years. After two years, the design-review process shall be repeated if the developer has not begun construction. 2. Obtaining city council approval of the planned unit development amendment and parking waiver. 3. All requirements of the fire marshal and building official must be met. 4. The applicants shall obtain all required permits from the Ramsey-Washington Metro Watershed District and Ramsey County. 5. The applicants shall comply with all requirements of the Maplewood Engineering Report from Jon Jarosch dated December 10, 2015. 6. The applicants shall provide the city with cash escrow or an irrevocable letter of credit for any exterior landscaping and site improvements prior to getting a building permit for the development. Staff shall determine the dollar amount of the escrow. 7. All work shall follow the approved plans. The director of environmental and economic development may approve minor changes. 8. All roof-top mechanical equipment shall be painted to match the building. Seconded by Councilmember Smith Ayes – All The motion passed. Councilmember Smith moved to approve the parking waiver as proposed subject to the retention of the proposed proof-of-parking spaces in case they are needed for future parking needs. If a parking shortage develops after the paving and curbing of the proof- of-parking spaces, the city council may require parking lot restriping to add more spaces. Seconded by Councilmember Juenemann Ayes – All The motion passed. 6. Consider Approval of Proposed Franchise Ordinance Granting CenturyLink a Franchise for Providing Cable Services in Maplewood – First Reading City Manager Coleman introduced the staff report. City Attorney Kantrud gave the staff report and answered questions of the council. Patrick Haggerty with Century Link addressed the council to give additional information and answer questions of the council. Councilmember Abrams moved to approve the Franchise Ordinance providing the authority for CenturyLink to provide competitive Cable Communication Services in the City of Maplewood. Packet Page Number 18 of 184 E2 18 January 25, 2016 City Council Meeting Minutes Seconded by Councilmember Juenemann Ayes – All The motion passed. K. AWARD OF BIDS None L. VISITOR PRESENTATIONS – All presentations have a limit of 3 minutes. 1. Mark Bradley, Maplewood Resident 2. Bob Zick, North St. Paul Resident M. ADJOURNMENT Mayor Slawik adjourned the meeting at 9:18 p.m. Packet Page Number 19 of 184 F1a MEMORANDUM TO: City Council FROM: Melinda Coleman, City Manager DATE: February 2, 2016 SUBJECT: Council Calendar Update Introduction/Background This item is informational and intended to provide the Council an indication on the current planning for upcoming agenda items and the Work Session schedule. These are not official announcements of the meetings, but a snapshot look at the upcoming meetings for the City Council to plan their calendars. No action is required. Upcoming Agenda Items & Work Session Schedule 1. February 22nd a. Workshop: Update on Fire/EMS Work Group, Kid City Update 2. March 7th a. Workshop: Business Retention Discussion, Communication Plan/Committee Report 3. March 22nd a. Workshop: Emergency Management Plan Review Budget Impact None Recommendation No action required. Attachments None Packet Page Number 20 of 184 MEMORANDUM TO: Melinda Coleman, City Manager FROM: Chris Swanson, Environmental and City Code Specialist DATE: January 25, 2016 SUBJECT: Presentation of Energy Use Report at Maplewood Fire Station No. 1, 600 McKnight Road North Introduction Maplewood Fire Station No. 1 opened in November of 2014. The building is staffed around the clock. In addition, the building also serves as a substation for police operations in south Maplewood. This new station helped the City expand their medical service ability in the area and still maintain the City’s commitment to sustainable operations. Background The City adopted an energy efficiency and conservation strategy in December 2009. One of the goals of the adopted strategy was to establish policies and priorities to help improve Maplewood’s long-term operational efficiency. This includes upgrading existing city buildings when feasible and a commitment from the City that any new city-funded building be constructed to a green code. In September of 2013, the Maplewood City council adopted the Maplewood Green Building Program. The Green Building Program is based on the 2012 International Green Construction Code (IgCC). Maplewood was the first city in the country to adopt a Green Building Code based on the new international standards and Fire Station No. 1 was the first building in the nation designed and built to the specifications of the new code. Discussion The City tracks the energy use for all city buildings through the B3 benchmarking program. After looking at the data from the first year of operation, Fire Station No. 1 is using “significantly” less energy than its counterparts in the city and around the state. The largest impact has been the decrease in the amount of natural gas used to heat the building. A comparison of energy use between Fire Station No. 1 (600 McKnight Rd N), Fire Station No. 2 (1955 Clarence Street), and Fire Station No. 7 (1530 County Road C) has been attached for reference. The yearly operating energy use, on a per foot average, for Fire Station No. 1 is 76.61 kBtu/SF/Yr. This is a 38% decrease in energy use compared to the average annual per foot energy use of the other fire stations currently operated by the city. The total operating energy cost for Fire Station No. 1 was $15,188 for 2015. The 38% decrease in total energy use amounts to a cost avoidance of over $5,000 per year. F3 Packet Page Number 21 of 184 Budget Impact Reducing energy use through sustainable operation and building practices helps the City save money in addition to meeting our environmental goals. Recommendation Review the information provided in the report. Attachments 1. Fire Station Energy Comparison Report F3 Packet Page Number 22 of 184 Fire Station No. 1 Energy Report Fire Station No. 2 Energy Report Fire Station No. 7 Energy Report F3, Attachment 1 Packet Page Number 23 of 184 THIS PAGE IS INTENTIONALLY LEFT BLANK Packet Page Number 24 of 184 TO:Melinda Coleman, City Manager FROM:Gayle Bauman, Finance Director DATE: SUBJECT:Approval of Claims 351,416.93$ Checks # 96674 thru # 96718 dated 01/26/16 495,028.28$ Disbursements via debits to checking account dated 1/19/16 thru 1/22/16 846,445.21$ Total Accounts Payable 846,445.21$ GRAND TOTAL Attachments Attached is a detailed listing of these claims. Please call me at 651-249-2902 if you have any questions on the attached listing. This will allow me to check the supporting documentation on file if necessary. MEMORANDUM February 2, 2016 Attached is a listing of paid bills for informational purposes. The City Manager has reviewed the bills and authorized payment in accordance with City Council approved policies. ACCOUNTS PAYABLE: G1 Packet Page Number 25 of 184 Check Description Amount 96674 03067 LEADERSHIP DEVELOMENT PROGRAM 1,350.00 96675 04206 ATTORNEY SERVICES - FEBRUARY 8,000.00 96676 00687 TREE TRIM GOOD SAMARITAN HOME 200.00 96677 02612 OVER CONTRIBUTION D COMP 2015 785.00 96678 00393 MONTHLY SURTAX - DEC 24125123035 2,629.76 96679 05311 BASKETBALL OFFICIALS 1/16 & 1/17 1,590.00 96680 00985 WASTEWATER - FEBRUARY 253,253.08 96681 04316 AUTO PAWN SYSTEM - DECEMBER 708.30 96682 01546 SHIRTS FOR FLAG FOOTBALL 230.00 96683 01574 WEIGHTS FOR SANDER CALIBRATION 20.00 96684 01750 MDSE FOR RESALE 240.32 01750 MDSE FOR RESALE 87.41 01750 MDSE FOR RESALE -14.88 96685 01190 ELECTRIC & GAS UTILITY 2,795.27 01190 ELECTRIC & GAS UTILITY 1,799.07 01190 ELECTRIC & GAS UTILITY 323.75 01190 FIRE SIRENS 51.30 96686 04848 MONTHLY PREMIUM - JANUARY 236.01 96687 01811 MDSE FOR RESALE 51.00 96688 03311 SEMI-RUGGED LAPTOPS~11,778.85 03311 RUGGED TABLET MEETING SPECS 2,202.11 03311 DOCKING STATION FOR TABLET 260.08 96689 00412 LEADERSHIP GROWTH GROUP S LOVE 600.00 00412 BOOKS LEADERSHIP GROUP S LOVE 176.35 96690 00464 SQUAD BUILD UPS NEW LEASED #901 4,340.79 00464 SQUAD BUILD UPS NEW LEASED #904 2,369.60 96691 05618 LEASE CHARGES PD VEH #998 - JAN 773.30 05618 LEASE CHARGES PD VEH #902 - JAN 411.75 96692 04967 OVER CONTRIBUTION D COMP 2015 200.00 96693 05619 ACUPUNCTURE SESSIONS - DEC 812.00 96694 05368 SQUAD SET UP FOR SQUAD #981 8,307.55 05368 COMPUTER DOCKING INSTALL #941 1,276.93 05368 COMPUTER DOCKING INSTALL #961 1,153.07 96695 02263 BOARDING & DESTRUCTION FEES-DEC 188.50 96696 05616 RAQUETBALL PARTS 332.73 96697 01816 MEMBERSHIP DUES 1,070.00 96698 03963 STATE OF MAPLEWOOD LUNCH PROG 166.00 03963 STATE OF MAPLEWOOD LUNCH PROG 149.00 96699 03978 STATE OF MAPLEWOOD CATERING 1,983.00 96700 05598 PROSECUTION SERVICES 11,250.00 96701 00986 MONTHLY SAC - DECEMBER 12,300.75 96702 05620 HARD CAB FOR JOHN DEERE MACHINE 5,800.00 96703 05364 ACUPUNCTURE SESSIONS NOV/DEC 1,134.00 96704 01126 MONTHLY PREMIUM - JANUARY 496.00 96705 01175 MONTHLY UTILITIES - DECEMBER 2,995.33 96706 05612 WIRELESS SRVS FOR LIFT STATION 14 276.00 96707 00001 REFUND J THEMMES FOR TRANS MEDIC 91.04 96708 00396 HAZARDOUS MATERIAL STORAGE FEE 25.00 96709 01359 VEHICLE WASHES - DECEMBER 145.73 96710 05617 VEHICLE WASHES - 2015 671.58 96711 04074 TAI CHI INSTRUCTION 01/06 - 03/09 220.80 96712 00006 REFUND C GALLIVAN CHG TO SILVERFIT 338.10 96713 01836 PRINTING FEES FOR MARKETING 785.73 96713 01836 PULL BOX COVER REPLACED KENNARD &177.87 01836 PRINTING FEES FOR MARKETING 117.20 01/26/2016 MN DEPT OF LABOR & INDUSTRY 01/26/2016 ST PAUL, CITY OF 01/26/2016 ST PAUL, CITY OF 01/26/2016 ST PAUL, CITY OF 01/26/2016 H A KANTRUD 01/26/2016 HUGO'S TREE CARE INC 01/26/2016 DUWAYNE KONEWKO Check Register City of Maplewood 01/21/2016 Date Vendor 01/26/2016 CRAIG RAPP LLC 01/26/2016 CITY OF MINNEAPOLIS RECEIVABLES 01/26/2016 SUBURBAN SPORTSWEAR 01/26/2016 T A SCHIFSKY & SONS, INC 01/26/2016 WILLIE MCCRAY 01/26/2016 METROPOLITAN COUNCIL 01/26/2016 XCEL ENERGY 01/26/2016 XCEL ENERGY 01/26/2016 XCEL ENERGY 01/26/2016 THE WATSON CO INC 01/26/2016 THE WATSON CO INC 01/26/2016 THE WATSON CO INC 01/26/2016 DELL MARKETING LP 01/26/2016 DELL MARKETING LP 01/26/2016 DELL MARKETING LP 01/26/2016 XCEL ENERGY 01/26/2016 AVESIS 01/26/2016 BERNATELLO'S PIZZA 01/26/2016 EMERGENCY AUTOMOTIVE TECH, INC 01/26/2016 ENTERPRISE FM TRUST 01/26/2016 ENTERPRISE FM TRUST 01/26/2016 DONALD SALVERDA & ASSOCIATES 01/26/2016 DONALD SALVERDA & ASSOCIATES 01/26/2016 EMERGENCY AUTOMOTIVE TECH, INC 01/26/2016 HEALTHEAST VEHICLE SERVICES 01/26/2016 HEALTHEAST VEHICLE SERVICES 01/26/2016 HILLCREST ANIMAL HOSPITAL PA 01/26/2016 MARCUS FORSYTHE 01/26/2016 LISA GRANT 01/26/2016 HEALTHEAST VEHICLE SERVICES 01/26/2016 IMPRESSIVE PRINT 01/26/2016 KANE'S CATERING SERVICE, INC 01/26/2016 KELLY & LEMMONS, P.A. 01/26/2016 HOLLMAN 01/26/2016 IAFC MEMBERSHIP 01/26/2016 IMPRESSIVE PRINT 01/26/2016 NCPERS MINNESOTA 01/26/2016 CITY OF NORTH ST PAUL 01/26/2016 OMNI SITE 01/26/2016 METROPOLITAN COUNCIL 01/26/2016 MINNESOTA EQUIPMENT 01/26/2016 CRYSTALIN MONTGOMERY 01/26/2016 REGAL AUTO WASH BILLING 01/26/2016 RICE STREET CAR WASH 01/26/2016 ELAINE SCHRADE 01/26/2016 SILVER FIT 01/26/2016 ONE TIME VENDOR 01/26/2016 MN DEPT OF PUBLIC SAFETY G1, Attachments Packet Page Number 26 of 184 01836 PRINTING FEES FOR MARKETING 111.50 01836 PULL BOX COVER REPLACED KENNARD &65.57 96714 02686 BASIC EVIDENCE.COM LICENSE 1 YEAR 90.00 96715 04081 OVER CONTRIBUTION D COMP 2015 671.00 96716 01698 4TH QUARTER PMT 2015 184.98 96717 04179 PROGRAM DISPLAY SIGN MCC - DEC 325.00 96718 05013 DECTRON INSPECTION 256.75 01/26/2016 ST PAUL, CITY OF 01/26/2016 TASER INTL 01/26/2016 MICHAEL THOMPSON 01/26/2016 GREATER TWIN CITIES UNITED WAY 01/26/2016 VISUAL IMAGE PROMOTIONS 01/26/2016 YALE MECHANICAL LLC 351,416.9345Checks in this report. 01/26/2016 ST PAUL, CITY OF G1, Attachments Packet Page Number 27 of 184 Settlement Date Payee Description Amount 1/19/2016 MN State Treasurer Drivers License/Deputy Registrar 62,849.26 1/19/2016 MN Dept of Revenue MN Care Tax 7,482.00 1/19/2016 MN Dept of Revenue Sales Tax 8,610.00 1/19/2016 MN Dept of Revenue Fuel Tax 603.63 1/19/2016 U.S. Treasurer Federal Payroll Tax 105,423.76 1/19/2016 P.E.R.A.P.E.R.A.102,494.82 1/19/2016 Empower - State Plan Deferred Compensation 29,249.00 1/19/2016 MidAmerica HRA Flex plan 19,433.43 1/19/2016 Labor Unions Union Dues 2,251.46 1/20/2016 MN State Treasurer Drivers License/Deputy Registrar 20,864.41 1/20/2016 MN State Treasurer State Payroll Tax 21,499.50 1/21/2016 MN State Treasurer Drivers License/Deputy Registrar 19,806.86 1/21/2016 Delta Dental Dental Premium 1,865.17 1/22/2016 MN State Treasurer Drivers License/Deputy Registrar 90,514.64 1/22/2016 Optum Health DCRP & Flex plan payments 2,080.34 495,028.28 CITY OF MAPLEWOOD Disbursements via Debits to Checking account G1, Attachments Packet Page Number 28 of 184 MEMORANDUM TO: Melinda Coleman, City Manager FROM: Michael Thompson, Director of Public Works DATE: January 11, 2016 SUBJECT: Approval of Resolution Accepting Assessment Roll and Ordering Assessment Hearing for March 14, 2016, Bellaire Avenue Street Improvements, Project 15-16 Introduction The City Council will consider accepting the assessment roll and calling for an assessment hearing for March 14, 2016. Background / Discussion Assessment rates are consistent with the City’s assessment policies and the amount assessed must provide a benefit to the property that is equal to or greater than the assessed amount. An appraisal firm was hired to ascertain an opinion of the special benefit received by properties within the neighborhood project area. This information was used to set the proposed special benefit assessment amounts for the project area. There are 13 assessable residential parcels within the Bellaire Avenue project area. Each parcel is identified for an assessment of $3,450.00. Budget Impact The funding sources, as outlined in the feasibility study are still in order. Prior to the awarding of bid, staff will review the results make a recommendation if a project budget adjustment is required. The currently approved financing plan is as follows: Special Assessments = $44,850.00 Utility Funds/G.O. Bonds = $48,400.00 Recommendation It is recommended that the City Council approve the attached resolution for the Bellaire Avenue Street Improvements, City Project 15-16, Accepting Assessment Roll and Ordering Assessment Hearing. Attachments 1. Resolution Accepting Assessment Roll and Ordering Assessment Hearing 2. Project Location Map 3. Pending Assessment Roll G2 Packet Page Number 29 of 184 RESOLUTION ACCEPTING ASSESSMENT ROLL AND ORDERING ASSESSMENT HEARING WHEREAS, the Clerk and the City Engineer have, at the direction of the council, prepared an assessment roll for the Bellaire Avenue Street Improvements, City Project 15-16, and the said assessment roll is on file in the office of the City Engineer. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF MAPLEWOOD, MINNESOTA: 1. A hearing shall be held on the 14th day of March 2016, at the city hall at 7:00 p.m. to pass upon such proposed assessment and at such time and place all persons owning property affected by such improvement will be given an opportunity to be heard with reference to such assessment. 2. The City Clerk is hereby directed to cause a notice of hearing on the proposed assessment to be published in the official newspaper, at least two weeks prior to the hearing, and to mail notices to the owner of all property affected by said assessment. The notice of hearing shall state the date, time and place of hearing, the general nature of the improvement, the area to be assessed, that the proposed assessment roll is on file with the clerk and city engineer and that written or oral objections will be considered. Approved this 8th day of February 2016. G2, Attachment 1 Packet Page Number 30 of 184 1 inch = 500 feet ± Pavement Management CIP Project - 2016City of North St. Paul MN Path: K:\01887-420\GIS\Maps\2016_Street_Util.mxd Date Saved: 5/27/2015 1:32:22 PM Parcels Project Years 2016 G2, Attachment 2 Packet Page Number 31 of 184 Prepared August 10, 2015 Re‐Examined January 26, 2016 ASSESSMENT ROLL BELLAIRE AVE IMPROVEMENTS MAPLEWOOD PROJECT 15‐16 Parcel ID Taxpayer/Owner Street Number Street Units Street Assessment Total Assessment 12922240101 Aaron C Martin 2899 Bellaire Ave N 1 $3,450.00 $3,450.00 12922240100 Kristine L Tavernier Moran 2901 Bellaire Ave N 1 $3,450.00 $3,450.00 12922240010 Thomas E Dahedl 2905 Bellaire Ave N 1 $3,450.00 $3,450.00 12922240009 Bradley D Lavine 2911 Bellaire Ave N 1 $3,450.00 $3,450.00 12922240008 Darlene A Kinney 2921 Bellaire Ave N 1 $3,450.00 $3,450.00 12922240103 Harold Sonnek 2937 Bellaire Ave N 1 $3,450.00 $3,450.00 12922240102 John R Wolfsberger 2939 Bellaire Ave N 1 $3,450.00 $3,450.00 12922240006 Gerald A Teich 2941 Bellaire Ave N 1 $3,450.00 $3,450.00 12922240005 Dorothy A Little 2947 Bellaire Ave N 1 $3,450.00 $3,450.00 12922240004 Donley D Rowenhorst 2967 Bellaire Ave N 1 $3,450.00 $3,450.00 12922240003 Ashley Latola 2977 Bellaire Ave N 1 $3,450.00 $3,450.00 12922240002 Joseph A Tuccitto 2993 Bellaire Ave N 1 $3,450.00 $3,450.00 12922240001 John P Majerus 2997 Bellaire Ave N 1 $3,450.00 $3,450.00 Total 13 Total $44,850.00 ASSESSMENT RATES: RESIDENTIAL SPECIAL ASSESSMENT RATE = $3,450.00 PER UNIT REHABILITATION/PAVEMENT REPLACEMENT G2, Attachment 3 Packet Page Number 32 of 184 MEMORANDUM TO: Melinda Coleman, City Manager FROM: Michael Thompson, Director of Public Works Steve Lukin, Fire Chief DATE: January 20, 2016 SUBJECT: Approval of Resolution Directing Modification of Existing Construction Contract, Change Order No. 1, East Metro Public Safety Training Center Phase I Bid Package 5C Classroom Building Introduction The City Council will consider approving the attached resolution directing the modification of the existing construction contract for the East Metro Public Safety Training Center, Phase 1 Bid Package 5C Improvements, City Project 09-09. Background On September 14, 2015, the Council awarded Terra General Contractors a construction contract for construction of the Classroom Building at the East Metro site in the amount of $318,700.00. There have been no previous change orders to the contract. The East Metro Bid Package 5C Improvements project has been under construction since fall 2015 and is scheduled to be completed by the end of January 2016. Winter construction conditions and a request by the owner to relocate the sanitary sewer connection resulted in the need for changes to the contract. Discussion The Change Order includes three items: COR# 01 – Contractor installed a propane conversion kit in the furnace/heating system to allow the heating system to function while waiting for Xcel Energy natural gas service to be brought to the site in the spring of 2016. COR# 02 – Owner requested that the contractor reroute the sanitary sewer system, which required dewatering, rock backfill and insulation of the sanitary line to complete the work. COR# 03 - Temporary heat to allow construction during the winter construction activities. Includes temporary installation of a propane tank and fuel for construction activity. The change order costs are summarized below: Change Order #1 Unit Amount Item COR# 01 Propane Conversion Kit for Furnace LS $227.00 Item COR# 02 Dewatering & Sanitary Changes LS $7,062.00 Item COR# 03 Rev 2 Temporary Heat LS $1,992.00 G3 Packet Page Number 33 of 184 Net Project Cost Increase $9,281.00 Budget Impact Approval of Change Order No. 1 will increase the project construction contract amount by $9,281.00 from $318,700.00 to $327,981.00. No adjustments to the approved project budget are needed at this time. The overall project budget is currently $6,193,901.64 as approved by council on August 11, 2014, which includes a planned assessment against the property (paid by members of the Joint Powers Agreement) in the amount of $175,000.00. The assessment amount is proposed to increase by between $135,000.00 and $240,000 to a new amount of between $310,000.00 and $415,000. The final amount will be based on the total indirect costs associated with constructing the classroom, including the proposed change order. The Fire Chief is confident that there will be sufficient revenues from participating entities to cover the additional construction costs and operating costs. Recommendation Staff recommends that the City Council approve the attached Resolution Directing Modification of Existing Construction Contract, Change Order No. 1, for the East Metro Public Safety Training Center Phase 1 Bid Package 5C Improvements, City Project 09-09. Attachments 1. Resolution Directing Modification of Existing Construction Contract, Change Order No.1 2. Change Order No.1 G3 Packet Page Number 34 of 184 RESOLUTION DIRECTING MODIFICATION OF EXISTING CONSTRUCTION CONTRACT PROJECT 09-09, BID PACKAGE 5C, CHANGE ORDER NO. 1 WHEREAS, the City Council of Maplewood, Minnesota has heretofore ordered made Improvements Project 09-09, East Metro Public Safety Training Center Phase I Bid Package 5C Improvements, and has let a construction contract pursuant to Minnesota Statutes, Chapter 429, and WHEREAS, it is now necessary and expedient that said contract be modified and designated as Improvement Project 09-09, Change Order No. 1. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF MAPLEWOOD, MINNESOTA, that: 1. The Mayor and City Engineer are hereby authorized and directed to modify the existing contract by executing said Change Order No. 1 which is an increase of $9,281.00. The revised contract amount is $327,981.00. Adopted by the Maplewood City Council on this 8th day of February 2016. G3, Attachment 1 Packet Page Number 35 of 184 G3, Attachment 2Packet Page Number 36 of 184 COR# 01 To: Attn: Email: Phone: (763) 463-0220 Fax: (763) 463-0290 From: Email: Project: East Metro Public Safety Training Center TGC Project #: 15-470 Owner: Date: 10/26/2015 If you have any questions concerning this issue, please call as soon as possible so any discrepancies can be addressed. This price is void within 30 days if not accepted. If this change is accepted by the owner, this will entitle Terra General Contractors to additional time to be determined at a later date. Please note, all changes will affect the completion date for this project. Please advise if Terra General Contractors is to proceed with this change. Ben Newlin Change Order Request 21025 Commerce Blvd, Suite 1000 Rogers, MN 55374 City of Maplewood Steve Lukin steve.lukin@maplewoodmn.gov Amount:227$ Description of Change: Propane Conversion Kit for Furnace City of Maplewood bnewlin@terragc.com G3, Attachment 2 Packet Page Number 37 of 184 COR# 01 COMMENTS 1 Direct Materials -$ See Back-Up 2 Sales Tax on Materials 7.30% -$ 3 Direct Labor Supervision -$ 4 Direct Labor Management -$ 5 Rental Equipment / Items -$ See Back-Up 6 Sales tax on Rental Equipment / Items 7.30% -$ 7 Equipment Ownership & Operating Exp.-$ 8 Field Related Activities -$ See Back-Up 9 TOTAL CM'S WORK (1-8)-$ SUBCONTRACTORS QTY. UNIT Unit Cost Total Cost 10 Master Mechanical 1 L.S.187.00$ 187.00$ 11 1 L.S.-$ -$ 12 1 L.S.-$ -$ 13 1 L.S.-$ -$ 14 1 L.S.-$ -$ 15 1 L.S.-$ -$ 16 1 L.S.-$ -$ 17 1 L.S.-$ -$ 18 1 L.S.-$ -$ 19 1 L.S.-$ -$ 20 1 L.S.-$ -$ 21 1 L.S.-$ -$ 22 SUBCONTRACTORS TOTAL (10-21)187.00$ COMMENTS 23 CM's Work (from line 9)-$ 24 Subcontractor's Work (from line 22) 187.00$ 25 SUBTOTAL (add lines 23-24) 187.00$ 26 General Conditions 5.50% 10.29$ 27 Fees 10.00% 19.73$ 28 Permits 1.35% 2.93$ 29 SUBTOTAL (add lines 25-28) 219.94$ 30 Bonds & CGL Insurance 3.00%6.60$ 31 TOTAL COST (add lines 29-30)226.54$ SUMMARY SUPPLEMENTAL PROPOSAL Terra General Contractors Description of Change: Propane Conversion Kit for Furnace CONSTRUCTION MANAGER'S WORK SUBCONTRACTORS WORK COST G3, Attachment 2 Packet Page Number 38 of 184 COR# 01 Terra General Contractors Description of Change: Propane Conversion Kit for Furnace QTY. UNIT Unit Cost Total Cost 1 L.S. -$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ -$ QTY. UNIT Unit Cost Total Cost 1 EA -$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ -$ QTY. UNIT Rate Total 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ -$ COST GENERAL CONTRACTOR'S FIELD RELATED ACTIVITIES GENERAL CONTRACTOR'S DIRECT MATERIALS TOTAL DIRECT MATERIALS ITEM OF MATERIAL GENERAL CONTRACTOR'S RENTAL EQUIPMENT ITEM OF RENTAL COST COST TOTAL RENTAL EQUIPMENT TOTAL FIELD RELATED ACTIVITIES ITEMS OF WORK G3, Attachment 2 Packet Page Number 39 of 184 Master Mechanical, Inc.CHANGE REQUEST #:1 East Metro Training center Date:6/22/2015 Change Request Number:1 Change Description:Propane to natural gas conversion kit Equipment:$187 Material:$0 7.125% Sales Tax:$0 Material Summary:$187 Shop Labor:- Hrs. x $ 88.00/Hr.$0 Field Labor:- Hrs. x $ 88.00/Hr.$0 Field Measuring:0.0 Field Hours:$0 Trucking:0.0 Truck Hours:$0 Permits:$0 Crane/Hoisting:$0 Shop Equipment:$0 Misc. Overtime & Jobsite Inefficiency:$0 $0 Change Order Direct Costs:$187 Subcontractor Summary:$0 5% Fee:$0 Subcontractor Totals:$0 Change Order Total Cost:$187 This Proposal May Be Withdrawn or Revised If Not Accepted Within:14 Days Notes: Cost Summary Detail:Shop Hours Field Hours Material Equipment Subs: Carrier Conversion Kit - - -$ 187$ -$ - - $0 $0 $0 - - $0 $0 $0 - - $0 $0 $0 - - $0 $0 $0 - - $0 $0 $0 - - $0 $0 $0 - - $0 $0 $0 - - $0 $0 $0 0.00 0.00 $0 $187 $0 G3, Attachment 2 Packet Page Number 40 of 184 COR# 02 To: Attn: Email: Phone: (763) 463-0220 Fax: (763) 463-0290 From: Email: Project: East Metro Public Safety Training Center TGC Project #: 15-470 Owner: Date: 12/14/2015 If you have any questions concerning this issue, please call as soon as possible so any discrepancies can be addressed. This price is void within 30 days if not accepted. If this change is accepted by the owner, this will entitle Terra General Contractors to additional time to be determined at a later date. Please note, all changes will affect the completion date for this project. Please advise if Terra General Contractors is to proceed with this change. Amount:7,062$ Description of Change: Dewatering & Sanitary Changes City of Maplewood bnewlin@terragc.com Ben Newlin Change Order Request 21025 Commerce Blvd, Suite 1000 Rogers, MN 55374 City of Maplewood Steve Lukin steve.lukin@maplewoodmn.gov G3, Attachment 2 Packet Page Number 41 of 184 COR# 02 COMMENTS 1 Direct Materials -$ See Back-Up 2 Sales Tax on Materials 7.30% -$ 3 Direct Labor Supervision -$ 4 Direct Labor Management -$ 5 Rental Equipment / Items -$ See Back-Up 6 Sales tax on Rental Equipment / Items 7.30% -$ 7 Equipment Ownership & Operating Exp.-$ 8 Field Related Activities -$ See Back-Up 9 TOTAL CM'S WORK (1-8)-$ SUBCONTRACTORS QTY. UNIT Unit Cost Total Cost 10 Larson Excavating 1 L.S. 5,829.00$ 5,829.00$ 11 1 L.S.-$ -$ 12 1 L.S.-$ -$ 13 1 L.S.-$ -$ 14 1 L.S.-$ -$ 15 1 L.S.-$ -$ 16 1 L.S.-$ -$ 17 1 L.S.-$ -$ 18 1 L.S.-$ -$ 19 1 L.S.-$ -$ 20 1 L.S.-$ -$ 21 1 L.S.-$ -$ 22 SUBCONTRACTORS TOTAL (10-21)5,829.00$ COMMENTS 23 CM's Work (from line 9)-$ 24 Subcontractor's Work (from line 22) 5,829.00$ 25 SUBTOTAL (add lines 23-24) 5,829.00$ 26 General Conditions 5.50% 320.60$ 27 Fees 10.00% 614.96$ 28 Permits 1.35% 91.32$ 29 SUBTOTAL (add lines 25-28) 6,855.88$ 30 Bonds & CGL Insurance 3.00%205.68$ 31 TOTAL COST (add lines 29-30)7,061.55$ SUMMARY SUPPLEMENTAL PROPOSAL Terra General Contractors Description of Change: Dewatering & Sanitary Changes CONSTRUCTION MANAGER'S WORK SUBCONTRACTORS WORK COST G3, Attachment 2 Packet Page Number 42 of 184 COR# 02 Terra General Contractors Description of Change: Dewatering & Sanitary Changes QTY. UNIT Unit Cost Total Cost 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ -$ QTY. UNIT Unit Cost Total Cost 1 EA -$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ -$ QTY. UNIT Rate Total 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ -$ TOTAL RENTAL EQUIPMENT TOTAL FIELD RELATED ACTIVITIES ITEMS OF WORK GENERAL CONTRACTOR'S RENTAL EQUIPMENT ITEM OF RENTAL COST COST COST GENERAL CONTRACTOR'S FIELD RELATED ACTIVITIES GENERAL CONTRACTOR'S DIRECT MATERIALS TOTAL DIRECT MATERIALS ITEM OF MATERIAL G3, Attachment 2 Packet Page Number 43 of 184 G3, Attachment 2 Packet Page Number 44 of 184 COR# 03REV2 To: Attn: Email: Phone: (763) 463-0220 Fax: (763) 463-0290 From: Email: Project: East Metro Public Safety Training Center TGC Project #: 15-470 Owner: Date: 1/11/2016 If you have any questions concerning this issue, please call as soon as possible so any discrepancies can be addressed. This price is void within 30 days if not accepted. If this change is accepted by the owner, this will entitle Terra General Contractors to additional time to be determined at a later date. Please note, all changes will affect the completion date for this project. Please advise if Terra General Contractors is to proceed with this change. Amount:1,992$ Description of Change: Temporary Heat City of Maplewood Temp heaters & heated concrete costs due to the late receipt of the permit. bnewlin@terragc.com Ben Newlin Change Order Request 21025 Commerce Blvd, Suite 1000 Rogers, MN 55374 City of Maplewood Steve Lukin steve.lukin@maplewoodmn.gov G3, Attachment 2 Packet Page Number 45 of 184 COR# 03REV2 COMMENTS 1 Direct Materials -$ See Back-Up 2 Sales Tax on Materials 7.30% -$ 3 Direct Labor Supervision -$ 4 Direct Labor Management -$ 5 Rental Equipment / Items -$ See Back-Up 6 Sales tax on Rental Equipment / Items 7.30% -$ 7 Equipment Ownership & Operating Exp.-$ 8 Field Related Activities -$ See Back-Up 9 TOTAL CM'S WORK (1-8)-$ SUBCONTRACTORS QTY. UNIT Unit Cost Total Cost 10 Patzoldt Concrete & Masonry 1 L.S.911.94$ 911.94$ 11 CHI 1 L.S.921.27$ 921.27$ 12 1 L.S.-$ -$ 13 1 L.S.-$ -$ 14 1 L.S.-$ -$ 15 1 L.S.-$ -$ 16 1 L.S.-$ -$ 17 1 L.S.-$ -$ 18 1 L.S.-$ -$ 19 1 L.S.-$ -$ 20 1 L.S.-$ -$ 21 1 L.S.-$ -$ 22 SUBCONTRACTORS TOTAL (10-21)1,833.21$ COMMENTS 23 CM's Work (from line 9)-$ 24 Subcontractor's Work (from line 22) 1,833.21$ 25 SUBTOTAL (add lines 23-24) 1,833.21$ 26 General Conditions 5.50% 100.83$ 27 Fees 0.00% -$ 28 Permits 0.00% -$ 29 SUBTOTAL (add lines 25-28) 1,934.04$ 30 Bonds & CGL Insurance 3.00%58.02$ 31 TOTAL COST (add lines 29-30)1,992.06$ SUMMARY SUPPLEMENTAL PROPOSAL Terra General Contractors Description of Change: Temporary Heat CONSTRUCTION MANAGER'S WORK SUBCONTRACTORS WORK COST G3, Attachment 2 Packet Page Number 46 of 184 COR# 03REV2 Terra General Contractors Description of Change: Temporary Heat QTY. UNIT Unit Cost Total Cost 1 L.S. -$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ -$ QTY. UNIT Unit Cost Total Cost 1 EA -$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ 1 L.S.-$ -$ -$ QTY. UNIT Rate Total 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ 0 Hr.-$ -$ -$ TOTAL RENTAL EQUIPMENT TOTAL FIELD RELATED ACTIVITIES ITEMS OF WORK GENERAL CONTRACTOR'S RENTAL EQUIPMENT ITEM OF RENTAL COST COST COST GENERAL CONTRACTOR'S FIELD RELATED ACTIVITIES GENERAL CONTRACTOR'S DIRECT MATERIALS TOTAL DIRECT MATERIALS ITEM OF MATERIAL G3, Attachment 2 Packet Page Number 47 of 184 G3, Attachment 2 Packet Page Number 48 of 184 G3, Attachment 2 Packet Page Number 49 of 184 G3, Attachment 2 Packet Page Number 50 of 184 G3, Attachment 2 Packet Page Number 51 of 184 G4 MEMORANDUM TO: Melinda Coleman, City Manager FROM: Gayle Bauman, Finance Director DATE: February 1, 2016 SUBJECT: Approval of Resolution Accepting State Aid Advancement Introduction The council will consider a resolution accepting a state aid advancement to cover the 2016 principal payments on our two state aid bond issues. Background There are currently no funds available in our Municipal State Aid Street construction account as a result of a number of past Municipal State Aid projects. The City has had a shortage since 2004 due to the fact that we have requested multiple advancements over the years to help fund our projects. Each year a certain amount of money at the state level is available to cities in our situation for advance encumbrances. An advance encumbrance is essentially an interest-free loan to the City to be repaid with future allotments. This is a good program for cities like ours, as it allows for the utilization of funds that other cities are not using. The City currently has two State Aid bond issues outstanding which require funding from our State Aid maintenance and construction accounts. Prior to 2015, the State had always funded these principal and interest payments without requiring an Advancement Resolution. The State’s policies have changed and now they are requiring us to approve a resolution each year we continue to have a shortage in our account before they will remit funds to the City for payment of the bonds. Budget Impact None. This is a change in policy by the State requiring the City to approve a resolution before being able to receive funds to cover debt service payments. Recommendation It is recommended that the City Council approve the attached Municipal State Aid Street Funds Advance Resolution. Attachments 1. Resolution Accepting State Aid Advancement Packet Page Number 52 of 184 G4, Attachment 1 MUNICIPAL STATE AID STREET FUNDS ADVANCE RESOLUTION CITY OF MAPLEWOOD, MINNESOTA WHEREAS, the City of Maplewood is planning to implement Municipal State Aid Street Project(s) in 2016 which will require State Aid funds in excess of those available in its State Aid Construction Account, and WHEREAS, said municipality is prepared to proceed with the construction of said project(s) through the use of an advance from the Municipal State Aid Street Fund to supplement the available funds in their State Aid Construction Account, and WHEREAS, the advance is based on the following determination of estimated expenditures: Account Balance as of February 1, 2016 -$1,063,306.00 Less estimated disbursements: Bond Principle: $570,000.00 Total Estimated Disbursements $570,000.00 Advance Amount (amount in excess of acct balance) -$1,633,306.00 WHEREAS, repayment of the funds so advanced will be made in accordance with the provisions of Minnesota Statutes 162.14, Subd. 6 and Minnesota Rules, Chapter 8820.1500, Subp. 10b, and WHEREAS, the Municipality acknowledges advance funds are released on a first-come-first-serve basis and this resolution does not guarantee the availability of funds. NOW, THEREFORE, Be It Resolved: That the Commissioner of Transportation be and is hereby requested to approve this advance for financing approved Municipal State Aid Street Project(s) of the City of Maplewood in an amount up to $570,000.00. I hereby authorize repayments from subsequent accruals to the Municipal State Aid Street Construction Account of said Municipality from future year allocations until fully repaid. I HEREBY CERTIFY that the above is a true and correct copy of a resolution presented to and adopted by the City of Maplewood, County of Ramsey, State of Minnesota, at a duly authorized City Council Meeting held in the City of Maplewood, Minnesota on the 8th day of February, 2016, as disclosed by the records of said City on file and of record in the office. Approved by the City of Maplewood, MN This 8th day of February, 2016 ________________________________ City Clerk Packet Page Number 53 of 184 G5 MEMORANDUM TO: Melinda Coleman, City Manager FROM: Gayle Bauman, Finance Director DATE: January 26, 2016 SUBJECT: Approval of Transfers from Tax Increment Funds for 2015 Introduction It is proposed that the Council authorize the appropriate 2015 budget adjustments and 2015 transfers totaling $469,640 from the Tax Increment Funds to the Debt Service Funds. Background Annually transfers are made from Tax Increment Funds to finance debt service costs on tax increment bonds. A breakdown by fund and comparison with the original budget is listed on the attachment. The result of the recommended transfers will be to decrease the fund balance of six Tax Increment Funds to an amount close to the amount that was anticipated in the 2016 Budget. The second half TIF payments for Districts 1-2 and 1-3 were not received until January 2016. In order to maintain a positive cash balance in the TIF funds, the transfer of these funds will not occur until 2016. This results in a lower amount being transferred for 2015. Budget Impact There is no financial impact to the city as the proposal is to transfer money between funds. Recommendation It is recommended that the Council authorize the appropriate 2015 budget adjustments and 2015 transfers totaling $469,640 from the Tax Increment Funds to the Debt Service Funds. Attachment 1. Transfers from Tax Increment Funds to Debt Service Funds Packet Page Number 54 of 184 G5, Attachment 1 TRANSFERS FROM TAX INCREMENT FUNDS TO DEBT SERVICE FUNDS 2015 BUDGET 2015 ACTUAL BUDGET CHANGES OPERATING TRANSFERS IN TO DEBT SERVICE FUNDS: Fund #336 1999B Tax Increment Bonds 216,420 201,380 (15,040) Fund #363 2010B Refunding Bonds 378,670 268,260 (110,410) Total transfers 595,090 469,640 (125,450) 2015 BUDGET 2015 ACTUAL BUDGET CHANGES OPERATING TRANSFERS OUT FROM TIF FUNDS: Fund #413 Housing District 1-1 144,120 147,810 3,690 Fund #414 Housing District 1-2 182,980 92,520 (90,460) Fund #415 Housing District 1-3 51,570 27,930 (23,640) Fund #416 Housing District 1-4 49,180 51,030 1,850 Fund #417 Housing District 1-5 39,170 41,590 2,420 Fund #418 Housing District 1-6 128,070 108,760 (19,310) Total transfers 595,090 469,640 (125,450) Packet Page Number 55 of 184 G6 MEMORANDUM TO: Melinda Coleman, City Manager FROM: Gayle Bauman, Finance Director DATE: February 1, 2016 SUBJECT: Approval of 2015 Carryovers and Transfers Carryovers It has been past practice to permit the carry over from one year to the next of unspent monies for specific purposes. This involves reductions in the 2015 Budget and corresponding increases in the 2016 Budget. The Finance Director has determined that the following is eligible for carry over. Fund Amount Account No. For CIP Fund $29,220 405-000-4720 Park projects CIP Fund $45,000 405-000-4640 Election equipment Transfers included in the 2015 budget document A number of transfers were planned for in the 2015 budget document and Council approval is needed to process them. The transfers needed are as follows: From To Amount Fund Fund Series $1,905,000 368 2013B Bonds 348 2004B Bonds 120,000 366 2012B Bonds 365 2012A Bonds These two transfers are between debt service funds and are needed to account for refunding proceeds received. $250,000 405 Capital Projects Fund 595 09-08 English/TH 36 This transfer will move the tax levy added in 2015 to assist with street project deficits to the English/TH36 interchange project fund. $64,000 604 Environmental Utility 444 Storm Clean Up This transfer was requested to continue work needed that was identified after the storm of July 2011. Packet Page Number 56 of 184 G6 Increase budget for General Fund department For the General Fund, monthly reports are prepared to monitor actual revenues and expenditures compared to the budget. Unforeseen costs or changes made during the year do happen and usually a department is able to absorb the expenditure within its budget by making other changes, but this is not always the case. The bill for the city’s 1/3 share of Tartan Ice Arena operations has ranged from $20,000 - $39,000 over the past five years. Staff utilizes the information it has when preparing budget numbers for the next year. For 2015, the city’s share of the cost for operations exceeded the budget by $8,793.50. An increase to the 2015 budget for the Parks Department is necessary to cover this additional expenditure. Budget adjustment needed $8,795 101-606-000-4480 Budget Impact None. The budget adjustments have been factored into our year end projections and transferring money between funds has no financial impact on the city. Recommendation It is recommended that the City Council approve the carry over requests listed above and authorize the Finance Director to reduce the 2016 budget as needed for any carry over amount that is not used for its specified purpose during the year. It is also recommended that the Council authorize the Finance Director to make the entries necessary to account for the transfers and direct the Finance Director to make the budget adjustments necessary to complete the transactions noted above. Packet Page Number 57 of 184 G7 MEMORANDUM TO: Melinda Coleman, City Manager FROM: Gayle Bauman, Finance Director DATE: February 1, 2016 SUBJECT: Approval of 2015 Transfer to Close Public Improvement Project Fund Introduction Financial transfers and budget adjustments are needed to close public improvement project funds. Background Project 10-14, Western Hills/Larpenteur Area Streets, has been completed. There is a surplus balance in the project fund due to project expenditures being under budget and revenues coming in higher than anticipated. The surplus balance currently sits at $331,407.65. The City also has three projects which had some feasibility work done on them back between 2007 and 2011. They are: 07-20 Pond Avenue/Dorland Road Improvements 08-11 County Road C Area Streets 10-20 County Road D, Hwy 61 to Hazelwood None of these projects have moved forward yet, but are expected to at some point in the future. Because the initial work was done so long ago, much of it will need to be redone when the project does move forward. In order not to burden the future project with additional costs, staff is recommending to utilize some of the surplus from the Western Hills project to pay off the deficits in these three projects and give them a clean slate. Surplus funds from project 10-14, Western Hills/Larpenteur Area Streets should be transferred as follows:  $50,134.70 to project 07-20 (fund 583).  $106,424.77 to project 08-11 (fund 502).  $38,659.24 to project 10-20 (fund 513).  Balance of funds should be transferred back to the Environmental Utility Fund (fund 604) which financed a portion of the project. Budget Impact There is no financial impact to the city as the proposal is to transfer money between funds. Packet Page Number 58 of 184 G7 Recommendation It is recommended that the Council authorize the following: (1) A transfer of $50,134.70 (or current deficit) from fund 512 (10-14) to fund 583 (07-20), (2) A transfer of $106,424.77 (or current deficit) from fund 512 (10-14) to fund 502 (08-11), (3) A transfer of $38,659.24 (or current deficit) from fund 512 (10-14) to fund 513 (10-20), (4) Remaining surplus balance from fund 512 (10-14) to fund 604 (EUF), (5) The appropriate budget changes, (6) Move any remaining balance sheet accounts to the new funds if necessary. Packet Page Number 59 of 184 G8 MEMORANDUM TO: Melinda Coleman, City Manager FROM: Gayle Bauman, Finance Director DATE: January 26, 2016 SUBJECT: Approval to Transfer Funds Regarding Tax Abatement Note Introduction It is recommended that the Council approve the transfer of funds and related budget adjustments from the Legacy Village Tax Abatement District Fund to the G.O. Tax Abatement Bond Fund in the amount of $98,700.00. Background In working with our bond counsel during a prior year, it was discovered that the terms of the tax abatement note for Legacy Village from 2004 had changed. In 2004, the City became indebted in the amount of $2,888,000 to Legacy Holdings LLC for the purchase of real estate to be used in a tax abatement development district. This note has been canceled and the Development Agreement has been amended to read that the City will make principal payments to the developer from tax abatement bond proceeds equal to the amount currently due to pay off the special assessments on such phase as of October 15 of the year in which a building permit for the improvements on such phase was issued. The City will not pay any portion of unpaid real estate taxes, installment of special assessments penalties or interest and any interest or penalties that accrue as a result of a late payment. The payments will be made as each phase of the development occurs in the form of credits on special assessments. As of the end of 2015, there are two remaining parcels in the development. The current balance of outstanding special assessments on those two parcels is $368,606. The balance in the Legacy Village Tax Abatement District Fund as of the end of 2015 is $469,469. The difference between the amount of funds on hand and the balance due on the two parcels can be transferred to the debt service fund and applied to future debt service payments. Budget Impact This is a transfer of money between funds and has no financial impact on the City. Recommendation It is recommended that the Council authorize the Finance Director to make the entries necessary to account for the transfer of $98,700 from the Legacy Village Tax Abatement District Fund (431) to the G.O. Refunding Tax Abatement Bond, Series 2014B Fund (370). Packet Page Number 60 of 184 G9 MEMORANDUM TO: Melinda Coleman, City Manager FROM: Mike Funk, Assistant City Manager/Human Resource Director Alec Knutson, Management Intern DATE: January 27, 2016 SUBJECT: Approval of Resolution for 2016 Pay Rates for Non-union, Non-contract Employees Introduction/Consideration To authorize cost of living adjustments (COLA) for all non-union, non-contract employees in 2016. Background All full and part-time benefit earning employees are represented by unions, except for the following five (5) positions: City Manager, Police Chief, Finance Director, Assistant City Manager/HR Director, and Fire and Emergency Management Coordinator. The City Manager and Assistant City Manager/HR Director’s compensation is defined and authorized through their employment contact. The remaining three (3) positions of Police Chief, Finance Director, and Emergency Management Coordinator are considered non-union, non-contract employees. Staff presents a recommendation to the city council annually that allows for an increase to the cost of living adjustments for these positions. The City’s past practice is to offer consistent and equitable COLA adjustments across the organization by providing non-union, non-contract positions the same escalations as it does with the City’s collective bargaining groups. In 2015, the City of Maplewood approved two-year contracts for the seven collective bargaining groups that established COLA adjustments for calendar years’ 2015 and 2016. For 2016, all union employees will receive the following three (3) separate COLA adjustments: 1% on January 9, 1% on June 11, and 1% on September 3. While the aggregate increase for the year is 3%, the phased-in approach over 12 months reduces the net fiscal impact to approximately 1.92%. This is also consistent with the changes occurring in the market. Budget Impact The approved 2016 budget assumed this adjustment, therefore there is no additional budget impact. Recommendation It is recommended the City Council adopt the attached resolution. Attachment 1. Resolution for 2016 Non-Union, Non-Contract Employees Packet Page Number 61 of 184 G9, Attachment 1 RESOLUTION APPROVING COST OF LIVING ADJUSTMENTS (COLA) FOR NON-UNION, NON-CONTRACT CITY EMPLOYEES FOR 2016 WHEREAS, The City’s past practice is to offer consistent and equitable COLA adjustments across the organization by providing non-union, non-contract positions the same escalations as it does with the City’s collective bargaining groups; and, WHEREAS, For 2016, all union employees will receive the following three (3) separate COLA adjustments: 1% on January 9, 1% on June 11, and 1% on September 3; and, THEREFORE, BE IT RESOLVED that the Police Chief, Finance Director, and Fire and Emergency Management Coordinator receive three (3), one (1) percent Cost of Living Increases to their salary in 2016, which shall be effective on January 9 (retroactive), June 11, and September 3; and, BE IT FURTHER RESOLVED, this resolution shall supersede any previous resolution setting pay rates for these pay classifications. The motion for the adoption of the foregoing resolution was duly seconded by member __________________, and after full discussion thereof and upon vote being taken thereon, the following voted in favor thereof: and the following voted against the same: whereupon said resolution was declared duly passed and adopted. __________________________________ Mayor Attest: _____________________________ City Clerk Packet Page Number 62 of 184 G10 MEMORANDUM DATE: January 27, 2016 TO: Melinda Coleman, City Manager FROM: Mike Funk, Assistant City Manager/Human Resource Director Terrie Rameaux, Human Resource Coordinator SUBJECT: Approval of Resolution for 2016 Pay Rates for Temporary/Seasonal, and Casual Part-Time Employees Introduction/Background Please forward the attached resolution to the City Council for approval. It is recommended that this resolution be adopted to replace the existing resolution establishing pay rates for temporary, seasonal, and casual part-time employees. This resolution, updated annually, provides a current competitive wage scale when hiring for these positions. Changes indicated in bold. There are two (2) changes recommended for your consideration. The first change is a cost of living adjustment (COLA) to the casual part-time Fire Department positions retroactive to January 9, 2016. The City’s past practice is to be consistent in providing the same COLA adjustments to the casual part-time Fire Department positions as it does to the City’s various collective bargaining groups. For 2016 the seven collective bargaining groups received three (3) separate COLA adjustments: 1% on January 9, 1% on June 11, and 1% on September 3. The second change reflects and adjustment in the salary range for the “gardener” position. The range was increased to better reflect market and to attract more qualified candidates for the position. Budget Impact Each department has an approved 2016 budget for temporary/seasonal, casual part-time employees; therefore there is no supplementary budget impact. Recommendation It is recommended that the Council adopt the attached resolution to be effective January 9, 2016. Attachment 1) Resolution for 2016 Temporary/Seasonal and Casual P/T Employees Packet Page Number 63 of 184 G10, Attachment 1 RESOLUTION WHEREAS, according to the Minnesota Public Employees Labor Relations act, part-time employees who do not work more than 14 hour per week and temporary/seasonal employees who work in positions that do not exceed 67 days in a calendar year, or 100 days for full-time students, are not public employees and are therefore not eligible for membership in a public employee union. NOW, THEREFORE, BE IT RESOLVED, that the following pay ranges and job classifications are hereby established for temporary/seasonal, casual part-time employees effective January 9, 2016 upon Council approval. Accountant $10.00-30.00 per hour Accounting Technician $9.00-22.00 per hour Administrative Assistant $9.00-23.00 per hour Background Investigator $25.00-40.00 per hour Building Inspector $14.00-35.00 per hour Building Attendant** $9.00-15.00 per hour Customer Service Assistant** $9.00-15.00 per hour CSO $14.50-19.50 per hour Election Judge $9.00-12.00 per hour Election Judge - Assistant Chair $9.00-15.00 per hour Election Precinct Chair $9.00-16.00 per hour Engineering Aide $9.00-16.00 per hour Engineering Technician $10.00-16.00 per hour Fire Maintenance/Engineer *** $15.15 per hour Firefighter-in-Training (new hire) *** $10.83 per hour Firefighter/EMT *** $12.99 per hour Firefighter/Paramedic *** $14.07 per hour Firefighter/EMT Captain *** $15.15 per hour Firefighter/Paramedic Captain *** $16.24 per hour Battalion Chief *** $17.32 per hour Gardener $12.00-22.00 per hour Intern $9.00-20.00 per hour IT Technician $15.00-20.00 per hour Laborer $9.00-14.00 per hour Manager-on-Duty Differential** $1.00 per hour Office Specialist $9.00-18.00 per hour Receptionist $9.00-16.00 per hour Recreation Instructor/Leader $9.00-32.00 per hour Recreation Official $9.00-30.00 per hour Recreation Worker $9.00-18.00 per hour Vehicle Technician $9.00-15.00 per hour Video Coordinator* $11.00-19.00 per hour Video Technician* $10.00-18.00 per hour * Video positions shall be paid a guaranteed minimum flat fee of $50 for 4 hours or less. ** Community Center positions shall receive a $2 per hour differential for working the following holidays: New Years Eve, New Year’s Day, Memorial Day, July 4th, and the day after Thanksgiving. Packet Page Number 64 of 184 G10, Attachment 1 *** Fire Department positions shall receive a $2 per hour differential for working the following holidays: New Year’s Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day and Christmas Day. Positions will also receive an additional 1% COLA adjustment on June 11 and an additional 1% COLA adjustment on September 3. BE IT FURTHER RESOLVED, this resolution will supersede previous resolutions setting pay rates for these pay classifications; and, BE IT FURTHER RESOLVED, that the City Manager shall have the authority to set the pay rate within the above ranges. Packet Page Number 65 of 184 G11 MEMORANDUM TO: Melinda Coleman, City Manager FROM: Steve Lukin, Fire Chief SUBJECT: Approval of JPA for Dispatching the Fire Department’s Closest Unit DATE: February 1, 2016 INTRODUCTION Starting in 2014 with the new computer aided dispatch system going online in the first part of 2015 and along with GPS capabilities, the Maplewood Fire Department brought forward to the Ramsey County Chiefs Association the idea of closest unit dispatching. With this new technology, the Ramsey County Dispatch Center would now have the capabilities to know the location of each fire truck or ambulance within Ramsey County. With this capability, they would now be able to send the closest resource to a specific emergency call anywhere within the County. A committee was formed where Assistant Chief Mike Mondor played an important role in helping in developing the guidelines for the JPA. Currently, all but two departments in Ramsey County are in the process of getting the JPA approved. As the first step in this process, the JPA is setup to allow for closest unit dispatching on two specific types of calls; working structure fires and cardiac arrests. What this means is that a St. Paul ambulance may be leaving St. John’s Hospital when a cardiac arrest comes in and it would alert the dispatch by way of GPS that their unit would be the closest to the call and would respond along with a Maplewood unit. This also hold true if Maplewood Fire has a fire truck that is closer than a Roseville truck when a structure fire comes in on the Roseville side of Rice Street, Maplewood would be sent as well as Roseville Fire. Currently, these are the only two types of calls when the closest unit dispatching would be utilized. There is not a large amount of these types of calls, however, there is a high impact probability on life and property. At time goes on, more types of calls could be added to this type of response. RECOMMENDATION I recommend that the city council approve to accept the JPA for dispatching the fire department’s closest unit. Attachment 1 Packet Page Number 66 of 184 G11, Attachment 1 Packet Page Number 67 of 184 G11, Attachment 1 Packet Page Number 68 of 184 G11, Attachment 1 Packet Page Number 69 of 184 G11, Attachment 1 Packet Page Number 70 of 184 G11, Attachment 1 Packet Page Number 71 of 184 G11, Attachment 1 Packet Page Number 72 of 184 G12 AGENDA REPORT TO: Melinda Coleman, City Manager FROM: Steve Lukin, Fire Chief SUBJECT: Approval of Resolution Accepting a Donation to the Fire Department from Costco DATE: January 27, 2016 INTRODUCTION The fire department has received a donation from Costco of chocolate treats valued at approximately $200.00. These treats will be given out to senior living facilities and nursing homes in the city and used for public relations/training events. RECOMMENDATION I recommend that the city council approve to accept the donation of chocolate valued at approximately $200.00 donated from Costco. $77$&+0(17 5HVROXWLRQ$XWKRUL]LQJ*LIWWR&LW\ Packet Page Number 73 of 184 RESOLUTION AUTHORIZING GIFT TO CITY WHEREAS, Maplewood is AUTHOIRIZED to receive and accept grants, gifts and devices of real and personal property and maintain the same for the benefit of the citizens and pursuant to the donor’s terms if so-prescribed, and; WHEREAS, Costco wishes to grant the city of Maplewood the following: Cases of chocolate valued at approximately $200.00, and; WHEREAS, Costco has instructed that the City will be required to use the aforementioned for: use by the fire department, and; WHEREAS, the city of Maplewood has agreed to use the subject of this resolution for the purposes and under the terms prescribed, and; WHEREAS, the City agrees that it will accept the gift by a four-fifths majority of its governing body’s membership pursuant to Minnesota Statute §465.03; The Maplewood City Council passed this resolution by four-fifths or more majority vote of its membership on ________________________________, 20______. Signed: Signed: Witnessed: ________________________ _________________________ __________________________ (Signature) (Signature) (Signature) Mayor ____ Chief of Fire City Clerk (Title) (Title) (Title) ________________________ _________________________ __________________________ (Date) (Date) (Date) G12, Attachment 1 Packet Page Number 74 of 184 G13 MEMORANDUM TO: Melinda Coleman, City Manager FROM: Karen Haag , Citizen Services Director DATE: January 28, 2016 SUBJECT: Approval of a Temporary Lawful Gambling Local permit for the Ramsey County Pheasants Forever at Gulden’s Restaurant, 2999 Maplewood Drive Introduction An application for a Lawful Gambling Local permit has been submitted by Daniel Jambor on behalf of the Ramsey County Pheasants Forever, 1555 Iglehart Ave in Saint Paul. Background This permit will be used for the organization’s banquet, which will be held at Gulden’s Restaurant in Maplewood on Saturday, March 12, 2016 from 4:00pm to 10:00pm. Proceeds from the event will go towards promoting conservation and restoration of wildlife habitat, specifically, but not exclusively, to pheasants. In addition, funds will be used for the education on conservation, as well as engage youth in the outdoors. The applicant has also submitted an Application for Exempt Permit, which is required by MN Statute §349.166, and processed and approved by the Minnesota Gambling Control Board. MN Statute §349.166 also requires that the applying organization notify the local government unit 30 days before the lawful gambling occasion, or 60 days for an occasion held in a city of the first class. Budget Impact None Recommendation Staff recommends that Council approve the Lawful Gambling Local permit for the Ramsey County Pheasants Forever’s fundraising banquet on March 12, 2016 at Gulden’s Restaurant, 2999 Maplewood Dr, in Maplewood. In addition, staff recommends that Council acknowledge the Application for Exempt Permit and waive any objection to the timeliness of said permit, as governed by MN Statute §349.166. Packet Page Number 75 of 184 G14 MEMORANDUM TO: Melinda Coleman, City Manager FROM: Karen Haag, Citizen Services Director DATE: January 28, 2016 SUBJECT: Approval of a Temporary Lawful Gambling - Local Permit for the Knights of Columbus Council #4374, 1725 Kennard Street Introduction An application for a Lawful Gambling Local p ermit has been submitted by Robert Altman on behalf of the Knights of Columbus Council #4374, 1481 Barclay Street in Saint Paul. Background This permit will be used for the organization’s banquet, which will be held at the Presentation of the Blessed Virgin Mary church, in Maplewood on Saturday, March 12, 2016 from 6:00pm to 10:00pm. Proceeds from the event will go towards raising money to assist the youth of the Presentation of the Blessed Virgin Mary to travel to Poland for World Youth Day in July and August 2016. The applicant has also submitted an Application for Exempt Permit, which is required by MN Statute §349.166, and processed and approved by the Minnesota Gambling Control Board. MN Statute §349.166 also requires that the applying organization notify the local government unit 30 days before the lawful gambling occasion, or 60 days for an occasion held in a city of the first class. Budget Impact None Recommendation Staff recommends that Council approve the Lawful Gambling Local permit for the Knights of Columbus Council #4374 fundraising event on March 12, 2016 at the Presentation of the Blessed Virgin Mary church, located at 1725 Kennard Street. In addition, staff recommends that Council acknowledge the Application for Exempt Permit and waive any objection to the timeliness of said permit, as governed by MN Statute §349.166. Packet Page Number 76 of 184 G15 MEMORANDUM TO: Melinda Coleman, City Manager FROM: Karen Haag, Citizen Services DATE: February 1, 2016 SUBJECT: Approval of Consulting Contract for Marketing and Advertising Introduction The City uses numerous venues to communicate with our constituents and is in a contractual agreement with Carey Communications (Heidi Carey) to assist us with our Marketing and Advertising projects. Background One of our main communication tools is the Maplewood Monthly which is mailed to every household and business within our community. The Monthly includes current events, council updates, neighborhood projects, seasonal reminders, etc. and is one of our most visual tools to keep residents informed. Due to budget constraints the Maplewood Living was only produced nine times in 2015. One of the councils Strategic Priorities for 2016 is Coordinated Communications, with this in mind during the 2016 budget preparation; staff included the production of twelve issues of the Monthly. Additionally, Ms. Carey assists with the following annual projects: • Four issues of the Seasons newsletter; and • Conducting interviews and writing articles for the Maplewood Living as directed • City Event Assistance, (including, but not limited to, securing sponsors, working with vendors and designing ads) ; and • Design City PSA Clear Channel Billboard ads; and • Securing ads for publications with a required minimum of $3600.00 each quarter in ads for the Maplewood Monthly, • Additional projects as required or requested. E.g. Miscellaneous brochures, banners, posters, etc. These projects will be submitted to the City Manager or the Citizen Services Director for approval and then forwarded to the Consultant. Ms. Carey is compensated an annual flat fee of $48,000 for the above on a pro-rata basis of $4,000 per month contingent upon securing a minimum of $3,600 in advertising sales each quarter. In the event that Ms. Carey does not meet the sales criteria in any given quarter then the payment for the next month would be reduced on a dollar for dollar basis for each dollar under the minimum for the quarter. Additionally, if Ms. Carey secures over $4,500 of advertising revenue in a quarter, the City shall pay her an additional commission on those sales as follows: Packet Page Number 77 of 184 G15 Additional Ad Revenue per Quarter: Commission Percentage First $100 - $498 over $4,500 20% Next $499 - $1,500 over $4,500 25% Next $1,501 over $4,500 30% The complete contract is attached for your review. Budget Impact The Contract is budgeted for in the 2016. Recommendation It is recommended that the council approve the Consulting Contract for Marketing and Advertising with Carey Communications through December 2017 and authorizes the City Manager and Director of Citizen Services to sign the same. Attachments 1. Independent Contractor Consulting Contract Packet Page Number 78 of 184 G15, Attachment 1 CITY OF MAPLEWOOD INDEPENDENT CONTRACTOR CONSULTING CONTRACT This agreement is entered into on January 1, 2016, by and between the City of the Maplewood (hereinafter "City" or "Employer" and/or "we" or "us" or "our") and Heidi Carey (hereinafter "Consultant" and/or "you" or "your"). This agreement sets forth all terms and conditions concerning the contract appointment of Heidi Carey to the position of Marketing and Advertising Consultant. A. TERM OF APPOINTMENT This contract shall begin on January 1, 2016, and continue on a weekly basis at the discretion of the City and Consultant, terminating on December 31, 2017, unless terminated earlier by the City of Maplewood or by the Consultant pursuant to this Agreement. The contract will terminate automatically on the termination date unless the appointment is extended in writing prior to the termination date. If the contract· is extended, it will terminate automatically upon the new expiration date, unless terminated earlier pursuant to this Agreement. B. DUTIES AND RESPONSIBILITIES Consultant shall consult with the City Manager and Citizens Services Director in the performance of all their duties with regard to marketing and advertising for the City of Maplewood. The Consultant's duties and responsibilities shall be conducted in accordance with this Agreement and in accordance with all applicable laws and the City's policies, procedures, and rules as established by management. The Consultant agrees that she will be performing all the duties set forth in this job description as an independent contractor and assumes all responsibility for payment of any and all employment taxes arising out of the City's payments to Consultant hereunder. Consultant shall furnish her own equipment and home office and determine her own schedule with regards to completing the deliverables. City will provide access to City servers to allow Consultant to email out newsletters. Consultant hereby indemnifies the City of Maplewood for any employment taxes arising out of the City's payments to Consultant hereunder. C. DELIVERABLES AND COMPENSATION Deliverables Consultant shall deliver the following work (hereafter "Work" or "Deliverables") in a timely efficient and professional manner: • Twelve issues of the Maplewood Monthly; and • Four issues of the Seasons newsletter (4 pages each); and • Conducting interviews and writing articles for the Maplewood Monthly as directed • City Event Assistance,( including, but not limited to, securing sponsors, working with vendors and designing ads) ; and • Design City PSA Clear Channel Billboard ads; and • Securing ads for publications (Maplewood Monthly and Recreation Booklets) with a required minimum of $3600.00 each quarter in ads for the Maplewood Monthly, Packet Page Number 79 of 184 G15, Attachment 1 Page 2 Consultant Contract – Heidi Carey August 1, 2013 • Additional projects as required or requested. E.g. Miscellaneous brochures, banners, posters, etc. These projects will be submitted to the City Manager or the Citizen Services Director for approval and then forwarded to the Consultant. Each of the above-stated publication deliverables includes two (2) proofs to City staff, delivery to the printer, and any final editing for the printer and printer proof. Maplewood Monthly page numbers shall be as determined by Karen Haag . Consultant shall also deliver an annual schedule that lists when articles are due, when each council member is to write their articles, and how many pages are included for each issue. Consultant shall send the Citizen Services Director and/or his or her designee, monthly advertising invoices that will be billed to each advertiser and the invoice for such advertising shall come directly from the City (in the same manner as they are currently sent). Consultant shall also email a copy of each publication to each of the advertisers to prove that their ads ran in the publication. The City reserves the right to decrease these stated deliverables upon 30 day written notice to Consultant, and any such reduction shall result in a pro rata reduction in compensation to Consultant upon implementation of such reduction. Compensation The City will pay Consultant an annual flat fee of Forty Eight Thousand Dollars ($48,000.00) for the above deliverables on a pro-rata basis of Four Thousand Dollars ($4,000.00) per month. Such payments shall be paid on the first day of each month following completion of the pro rata deliverables for the previous month. Such payment is not only contingent upon maintaining completion of the deliverables on a pro-rata basis each month; it is also contingent upon meeting the $3600.00 minimum advertising requirement each· quarter. If Consultant fails to meet these deliverable requirements (except for the advertising minimum) in any given quarter, then the payment for the next month shall be .reduced by pro-rata amount for the deliverables not completed. If the Consultant fails to meet the advertising minimum of $3600.00 per quarter, then the payment for the next month shall be reduced on a dollar for dollar basis for each dollar under the minimum for the quarter. Additionally, if Consultant brings in over $4500.00 of advertising revenue in a quarter, the City shall pay Consultant an additional commission on such sales as follows: Additional Ad Revenue per Quarter: Commission Percentage First $100 - $498 over $4,500 20% Next $499 - $1,500 over $4,500 25% Next $1,501 over $4,500 30% Additional Work Additionally, Consultant shall be available to perform “Additional Work’ at an hourly rate of $65.00 per hour. Such “Additional Work” must be authorized in writing, in advance, by either the Assistant City Manager, the citizens Services Director or the Parks and Recreation Director. Optional projects that may qualify for such “Additional Work’ include Media Blasts, Media Placement, Marketing Plans, Press Releases, Sponsorship Sales for MCC, Recreation Events, marketing Campaigns and other design projects for programs and/or events. Packet Page Number 80 of 184 G15, Attachment 1 Page 3 Consultant Contract – Heidi Carey August 1, 2013 As an independent contractor, the Consultant will not receive overtime compensation or compensatory time off or additional compensation beyond the established pay for the position pursuant to the agreement. D. WORK FOR HIRE Consultant agrees that with regard to all Work completed pursuant to this Agreement, i.e. marketing services, editorial services, design services, etc.: 1. To deliver to us no later than the end of each month, the pro rata Work to be performed that month, or to meet whatever other deadline has been determined for other specific Work, (i.e. Additional Work) in a manner and form satisfactory to us. 2. Upon acceptance of the Work, we agree to pay you Four Thousand Dollars per month and/or other payments of Sixty Five Dollars per hour for Additional Work for all rights in the Work. You will not receive any further payment from us. 3. You expressly acknowledge that the material contributed by you hereunder, and your services hereunder, are being specially ordered and commissioned by us for use in connection with marketing, advertising and publishing for the City of Maplewood. The Work contributed by you hereunder shall be considered a "work made for hire" as defined by the copyright laws of the United States. We shall be the sole and exclusive owner and copyright proprietor of all rights and title in and to the results and proceeds of your services hereunder in whatever stage of completion. If for any reason the results and proceeds of your services hereunder are determined at any time not to be a "work made for hire", you hereby irrevocably transfer and assign to us all right, title and interest therein, including all copyrights, as well as all renewals and extensions thereto. 4. You agree that we may make any changes or additions to the Work prepared by you, which we, in our sole discretion, may consider necessary, and may engage others to do any or all of the foregoing, with or without attribution to you. You further agree to waive any so-called moral rights in the Work. 5. You represent that, except with respect to material furnished to you by us, you are the sole author of the Work and all of your services are original and not copied in whole or in part from any other work; that your Work is not libelous or obscene, or knowingly violates the right of privacy or publicity, or any other rights of any person, firm or entity. E. BREACH If either party fails at any time to meet any deadlines required herein, or otherwise fails to meet the professional standards required, or otherwise by their actions or inactions provides just cause to terminate this Agreement, then the non-breaching party shall provide the breaching party with written notice of such breach and the breaching party shall have thirty (30) days from receipt of such notice to cure said breach to the satisfaction of the non-breaching party. Any Packet Page Number 81 of 184 G15, Attachment 1 Page 4 Consultant Contract – Heidi Carey August 1, 2013 failure to cure said breach upon expiration of the 30 day cure period shall be grounds for immediate termination of the Agreement upon written notice of termination for failure to cure. Notice, if to the City shall be delivered to: City of Maplewood Attention: Karen Haag, Director Citizen Services 1830 County Road B East Maplewood, MN 55109 Fax (651) 249-2059 And if to Consultant shall be delivered to: Heidi Carey 10599 108th Avenue N.E. Hanover, Minnesota 55341 All written notices to be delivered by mail, shall be delivered by Certified U.S. Mail, Return receipt requested, and shall be deemed delivered three (3) business days after the date the notice was sent. Email and facsimiles shall be deemed delivered the next business day after they are sent. F. FORCE MAJEURE Neither party shall be liable for any failure or delay in performance under this Agreement, to the extent such delay or failure is proximately caused by conditions beyond its control, including, but not limited to, war, strikes, floods, tornados or other natural disasters or Acts of God or any other cause beyond the reasonable control of the affected party. G. GENERAL PROVISIONS This contract constitutes the entire agreement between the parties and supersedes any other agreement either oral or written. The terms of this agreement may be modified only by subsequent written agreement signed by both parties. In the event that any part of this agreement is declared or rendered invalid by court decision or statute, the remaining provisions of the agreement shall remain in full force and effect. Minnesota law shall govern the interpretation and construction of this agreement. CONSULTANT SIGNATURE: _______________________________ Date: __________________ Heidi Carey SIGNATURES FOR THE CITY OF MAPLEWOOD: ________________________________ Date: ____________________ City Manager ________________________________ Date: ____________________ City Clerk Packet Page Number 82 of 184 Workshop Item E-2 Consent Agenda Item G16 MEMORANDUM REGARDING SALE OF PROPERTY LOCATED AT 2501 LONDIN LANE TO: City Council FROM: Melinda Coleman, City Manager H. Alan Kantrud, City Attorney DATE: February 2, 2016 SUBJECT: Sale of Excess Land (Londin Lane Fire Station property) These reports are confidential per Minnesota Statute 13D.05: Subd. 3.What meetings may be closed. (c) A public body may close a meeting: (3) to develop or consider offers or counteroffers for the purchase or sale of real or personal property. Before holding a closed meeting under this paragraph, the public body must identify on the record the particular real or personal property that is the subject of the closed meeting. The proceedings of a meeting closed under this paragraph must be tape recorded at the expense of the public body. The recording must be preserved for eight years after the date of the meeting and made available to the public after all real or personal property discussed at the meeting has been purchased or sold or the governing body has abandoned the purchase or sale. The real or personal property that is the subject of the closed meeting must be specifically identified on the tape. A list of members and all other persons present at the closed meeting must be made available to the public after the closed meeting. If an action is brought claiming that public business other than discussions allowed under this paragraph was transacted at a closed meeting held under this paragraph during the time when the tape is not available to the public, section 13D.03, subdivision 3, applies. An agreement reached that is based on an offer considered at a closed meeting is contingent on approval of the public body at an open meeting. The actual purchase or sale must be approved at an open meeting after the notice period required by statute or the governing body's internal procedures, and the purchase price or sale price is public data. Once considered at workshop the decision is going to be made during the public meeting as Consent Agenda Item G-16 and the full memorandum will be available to the public and shall be made part of the public record and approved at the next meeting of the City Council as part of the official minutes. Packet Page Number 83 of 184 MEMORANDUM TO: City Council FROM: Melinda Coleman, City Manager H. Alan Kantrud, City Attorney DATE: February 2, 2016 SUBJECT: Sale of Excess Land (Londin Lane Fire Station Property) Introduction and Background The City of Maplewood authorized the sale of several parcels of vacant/excess land within the City including two fire stations, including the one at Londin Lane. Over the last several months the City’s Agent, Mike Brass, identified and has been working with a Developer, Rubicon Group, to purchase the Londin Lane site. The City was marketing this site for redevelopment at approximately $2M with the understanding that any buyer would likely discount the cost of removal of the existing infrastructure—essentially the retired fire station and attendant parking area as well as let the market dictate the value. Mr. Brass and Staff anticipated that this site would be slow to market as any potential developer would need to secure the parcel next to it to make full-use of the site in terms of being economically viable. The adjacent piece is approximately 15 acres and is bank-owned. The Londin Lane site is approximately 6 acres. Discussion The City has a Purchase Agreement from the Rubicon Group before it. Rubicon is owned or at least managed by a developer by the name of Tom Wentz. Tom and his group spent a fair amount of time negotiating a deal with the Bank that has control of the adjacent parcel, which they now have a Purchase Agreement on. Since then staff has been working with Mr. Wentz to create a Purchase Agreement that combines the closing on the Londin Lane parcel with the closing on the vacant piece next to it. That is what is before you and Rubicon has offered $1,165,000.00 with some contingencies. Rubicon plans to develop the area with a multi(4)story market-rate apartment complex of approximately 240 units. This would require a change in the zoning of the property, from lower (farm) to higher (R4) density residential (a simple majority vote) unless a PUD is brought forward. It would also require a modification of the City’s Comprehensive Plan as the site is guided, “government,” currently which would require a super-majority vote and also means it needs the advise-and-consent approval of the Metropolitan Council. To proceed with the actual building the project plans will receive design review and there may be a need for a lot division as well. These approvals and changes are part of the contingency to close and Rubicon would make those applications promptly following the signing of the Purchase Agreement. This will allow the For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 City to move forward with the Commission and Met Council recommendations and approvals that will eventually come to Council for your ultimate decision. While the development is important, it is also worth noting that the adjacent 15 acres that Rubicon is also purchasing will be used for density purposes, but preserved as green space in perpetuity, which is a nice preservation of native ground and reduces visual clutter. While the contingencies are plain enough, the price is based on a few expenses that have been built into the deal in the mind of the developer, including approximately $100,000.00 in demo expenses. While your agent will be available to provide more detail, the offer is consistent with his market analysis and does contemplate redevelopment that will bring an attractive market-rate complex to south Maplewood with no tax subsidies. According to the Closing estimate the City will net approximately $1,090,000.00. Recommendation Rubicon is a well-positioned and experienced player in this development market. Staff has found them easy to work with and professional in their conduct. This is a good project for the area and also makes good use of the adjacent 15 acres. Staff recommends that the Council approve and authorize the signing of the Rubicon PA (presented as signed by them) and allow Rubicon to initiate the process to obtain the approvals to clear the contingencies prior to closing. Attachments 1. Rubicon, LLC Purchase Agreement and visual site plan 2. Colliers Land Sale Comps 3. Closing Cost Estimate For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 For The Permanent Record Meeting Date: 02/08/2016 Agenda Item G16 THIS PAGE IS INTENTIONALLY LEFT BLANK Packet Page Number 84 of 184 MEMORANDUM TO: City Council FROM: H. Alan Kantrud, General Counsel SUBJECT: PUBLIC HEARING REGARDING CABLE TELEVISION FRANCHISE ORDINANCE FOR QWEST BROADBAND SERVICES d/b/a CENTURYLINK TO PROVIDE CABLE COMMUNICATIONS SERVICES DATE: February 1, 2016 INTRODUCTION After considering the Franchise Ordinance at first reading, Council authorized Staff to make any edits and bring the Document back for second reading and public hearing prior to the adoption/granting of the actual Franchise Ordinance. BACKGROUND The City is bound to a process that calls for certain procedures to be followed prior to the actual passage of a franchise, “ordinance,” to a cable operator by its own policy of providing a Public Hearing in the passage of its Ordinances in all cases. Staff has reviewed the Ordinance with Council once before, made edits, and has brought it back for your consideration. Thus at this second reading a public hearing is warranted. DISCUSSION As the agenda title implies, the Council is being asked to hold the City-required public hearing on the Franchise Ordinance for CenturyLink. This is an opportunity for questions or comments by the public on the proposed Ordinance. It is then CenturyLink's opportunity to explain any terms and respond to any such questions. Similarly, City staff will be available for questions it can handle or is responsible for. The Hearing is conducted as any other with a simple opening by the Mayor and her call for public comments. Once she has closed the hearing, the record is complete with respect to the Ordinance under consideration. Staff will then incorporate any comments into the Ordinance and, if substantive, bring forward the revised Franchise Ordinance at the Council’s next meeting for consideration and approval but the anticipation is that the Document is in its final iteration. RECOMMENDATION It is recommended that the City Council hold the noticed Public Hearing regarding the proposed Franchise for CenturyLink to provide Cable Communication Services in the City of Maplewood. ATTACHMENT Final Version of Franchise Ordinance H1 Packet Page Number 85 of 184 H1: Attachment ORDINANCE AN ORDINANCE GRANTING A FRANCHISE TO QWEST BROADBAND SERVICES, INC D/B/A CENTURYLINK TO CONSTRUCT, OPERATE, AND MAINTAIN A CABLE SYSTEM; SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE SYSTEM AND THE PUBLIC RIGHTS-OF-WAY IN CONJUNCTION WITH THE CITY'S RIGHT-OF-WAY ORDINANCE, IF ANY, AND PRESCRIBING PENALTIES FOR THE VIOLATION OF THE PROVISIONS HEREIN; STATEMENT OF INTENT AND PURPOSE The City intends, by the adoption of this Franchise, to bring about the development of a competitive Cable System, and the continued operation of it. Such development can contribute significantly to the communication needs and desires of the residents and citizens of the City and the public generally. Further, the City may achieve better utilization and improvement of public services and enhanced economic development with the development and operation of a Cable System. Adoption of this Franchise is, in the judgment of the Council, in the best interests of the City and its residents. FINDINGS In the review of the application by Grantee and negotiations related thereto, and as a result of a public hearing, the City Council makes the following findings: The Grantee's technical ability, financial condition, legal qualifications, and character were considered and approved in a full public proceeding after due notice and a reasonable opportunity to be heard; Grantee's plans for constructing, and operating the System were considered and found adequate and feasible in a full public proceeding after due notice and a reasonable opportunity to be heard; The Franchise granted to Grantee by the City complies with the existing applicable Minnesota Statutes, federal laws and regulations; and The Franchise granted to Grantee is nonexclusive. SECTION 1. SHORT TITLE AND DEFINITIONS 1. Short Title. This Franchise Ordinance shall be known and cited as the CenturyLink Cable Franchise Ordinance. 1 471173v6 RJV MA151-4 Packet Page Number 86 of 184 H1: Attachment 2. Definitions. For the purposes of this Franchise, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. The word "may" is directory and discretionary and not mandatory. a. "Basic Cable Service" means any service tier which includes the lawful retransmission of local television broadcast signals and any public, educational, and governmental access programming required by the Franchise to be carried on the basic tier. Basic Cable Service as defined herein shall not be inconsistent with 47 U.S.C. §§543(b)(7). b. "City" means City of Maplewood, a municipal corporation, in the State of Minnesota, acting by and through its City Council, or its lawfully appointed designee. c. "City Council" means the governing body of the City. d. "Cable Service" or “Service” means Cable Service as defined by Minn. Stat. § 238.01 et seq. and 47 U.S.C § 521 et seq., as may be amended from time to time. e. "Cable System" or "System" means, unless the context clearly indicates otherwise, the Company’s network or facility, , consisting of antennas, copper or fiber optic cables, transmitters and receivers, amplifiers, towers, cablecasting facilities, power supplies, pedestals, and any other equipment or facilities intended for the purpose of providing Cable Service to Subscribers in the City. System as defined herein shall not be inconsistent with the definitions set forth in Minn. Stat. § 238.02, subd. 3 and 47 U.S.C § 522(7). f. "Class IV Cable Channel" means a signaling path provided by a Cable System to transmit signals of any type from a Subscriber terminal to another point in the System. g. "Drop" means the cable that connects the ground block on the Subscriber's residence or institution to the nearest feeder cable of the System. h. "FCC" means the Federal Communications Commission and any legally appointed, designated or elected agent or successor. i. "Franchise" or "Cable Franchise" means this ordinance and the regulatory and contractual relationship established hereby. j. "Grantee" is Qwest Broadband Services, Inc d/b/a CenturyLink, its lawful successors, transferees or assignees. 2 471173v6 RJV MA151-4 Packet Page Number 87 of 184 H1: Attachment k. "Gross Revenues" means all revenue received directly or indirectly by the Grantee, its affiliates, subsidiaries, parent, or person in which Grantee has financial interest of five percent (5%) or more, from operation of its System within City to provide Cable Services including, but not limited to, all Cable Service fees, Franchise Fees, late fees, Installation and reconnection fees, upgrade and downgrade fees, set top box fees, Lockout Device fees. The term Gross Revenues shall not include advertising revenues, FCC regulatory fees, bad debt, or any taxes on services furnished by Grantee imposed by any municipality, state, or other governmental unit or refundable subscriber deposits. l. "Installation" means the connection of the System from feeder cable to the point of connection with the Subscriber Set Top Box or other terminal equipment. m. “Living Unit” means a distinct address as tracked in the QC network inventory used by Grantee to identify existing or potential Subscribers. This includes, but is not limited to, single family homes, multi-dwelling units (e.g., apartment buildings and condominiums) and business locations. n. "Lockout Device" means an optional mechanical or electrical accessory to a Subscriber's terminal which inhibits the viewing of a certain program, certain channel, or certain channels provided by way of the Cable System. o. “Mosaic Channel” means a channel which displays miniaturized media screens and related information for a particular cluster of channels with common themes. The Mosaic Channel serves as a navigation tool for subscribers, which displays the group of Access Channels on a single channel screen and also provides for easy navigation to a chosen Access Channel in the group. p. "Pay Television" means the delivery over the System of pay-per-channel or pay-per- program video signals to Subscribers for a fee or charge, in addition to the charge for other Basic Cable Services or other Cable Services. q. "Person" is any person, firm, partnership, association, corporation, company, or other legal entity. r. “QC” means Qwest Corporation d/b/a CenturyLink , an commonly-owned affiliate of Grantee. s. “Qualified Living Unit” means a Living Unit which meets the minimum technical qualifications defined by Grantee for the provision of Cable Service. 3 471173v6 RJV MA151-4 Packet Page Number 88 of 184 H1: Attachment t. "Right-of-Way" or "Rights-of-Way" means the area on, below, or above any real property in City in which the City has an interest, and any public street, road, highway, freeway, lane, path, public way, alley, court, sidewalk, boulevard, drive, bridge, tunnel waterway, easement or right-of-way, parkway, park, skyway, or any other place, area, or real property owned by or under the control of City, or dedicated for use by City, use by the general public or use compatible with Cable System operations, including other dedicated Rights-of-Way for travel purposes and utility easements. u. “Right-of-Way Ordinance” means any ordinance of City codifying requirements regarding regulation, management and use of Rights-of-Way in City, including registration and permitting requirements. v. “Set Top Box” means an electronic device (sometimes referred to as a converter) which may serve as an interface between the System and a Subscriber’s television monitor, and which may convert signals to a frequency acceptable to such monitor , and may by an appropriate selector, permit a Subscriber to view all signals of a particular service. w. "Subscriber" means any Person who lawfully receives service via the System. In the case of multiple office buildings or multiple dwelling units, the "Subscriber" means the lessee, tenant or occupant. SECTION 2. GRANT OF AUTHORITY AND GENERAL PROVISIONS 1. Grant of Franchise. This Franchise is granted pursuant to the terms and conditions contained herein. Grantee shall comply with all provisions of its Proposal. Failure of Grantee to provide a System as described in its Proposal, or meet obligations and comply with all provisions therein, may be deemed a violation of this Franchise. 2. Grant of Nonexclusive Authority. a. The Grantee shall have the right and privilege, subject to the permitting and other lawful requirements of City ordinance, rule or procedure, to construct, erect, install, operate, upgrade, repair, replace, reconstruct, rebuild, maintain and retain in, upon, along, across, above, over and under the Rights-of-Way in City a Cable 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. 4 471173v6 RJV MA151-4 Packet Page Number 89 of 184 H1: Attachment b. Notwithstanding the above grant to use Rights-of-Way, no Right-of-Way shall be used by Grantee if City determines that such use is inconsistent with the terms, conditions, or provisions by which such Right-of-Way was created or dedicated, or with the present use of the Right-of-Way. c. It shall be unlawful for any Person to construct, install, operate or maintain a Cable System or to offer Cable Service in the City, unless such Person shall have first obtained and shall currently hold a valid franchise. Any affiliate of the Grantee involved in the offering of Cable Service in the City, or directly involved in the ownership, management or operation of the Cable System in the City, shall also comply with all obligations of this Franchise. However, the City and Grantee acknowledge that QC will be primarily responsible for the construction and installation of facilities in the Rights-of-Way which will be utilized by Grantee to provide Cable Services. So long as QC does not provide Cable Service to Subscribers in the City, QC will not be subject to the terms and conditions contained in this Franchise. QC’s installation and maintenance of facilities in the Rights-of-Way is governed by applicable local, state and federal law. To the extent Grantee constructs and installs facilities in the Rights-of-Way, such installation will be subject to the terms and conditions contained in this Franchise. Grantee is responsible for all provisions in this Franchise related to: 1) its offering of Cable Services in the City; and 2) the operation of the Cable System regardless of what entity owns or constructs the facilities used to provide the Cable Service. The City and Grantee agree that to the extent QC violates any applicable federal, state, or local laws, rules, and regulations, the City shall first seek compliance directly from QC. In the event the City cannot resolve these violations or disputes with QC, then the City may look to Grantee to ensure such compliance. Failure by Grantee to ensure QC’s or any other affiliate’s compliance with applicable local, state and federal laws, rules, and regulations, shall be deemed a material breach of this Franchise by Grantee. d. This Franchise and the right it grants to use and occupy the Public Rights-of-Way shall not be exclusive and this Franchise does not, explicitly or implicitly, preclude the issuance of other franchises or similar authorization to operate Cable Systems within the City. Provided, however, that Grantor shall not authorize or permit another Person to construct, operate or maintain a Cable System on material terms and conditions which are, taken as a whole, more favorable or less burdensome than those applied to Grantee. In the event another Person operates a Cable System authorized by Grantor on terms and conditions that are, taken as a whole, more favorable or less burdensome than the terms and conditions applicable to Grantee under this Franchise, the Grantor shall adjust any such terms and conditions in any other provider's authorization or this Franchise so that the terms and conditions under which such other Person operates, taken as a whole, are not more favorable or less burdensome than those that are applied to Grantee. 5 471173v6 RJV MA151-4 Packet Page Number 90 of 184 H1: Attachment 3. Lease or Assignment Prohibited. No Person may lease Grantee's System for the purpose of providing Service until and unless such Person shall have first obtained and shall currently hold a valid Franchise or other lawful authorization containing substantially similar burdens and obligations to this Franchise, including, without limitation, a requirement on such Person to pay franchise fees on such Person's use of the System to provide Cable Services, to the extent those would be such a requirement under this Franchise if Grantee itself were to use the System to provide such Cable Service. Any assignment of rights under this Franchise shall be subject to and in accordance with the requirements of Section. 4. Franchise Term. The term of the Franchise granted by the City pursuant to this ordinance shall be for a period of five (5) years, provided, however, that no less than six (6) months prior to the expiration of the initial five (5) year term, to the extent the City determines, in the City’s sole discretion, that the Company has complied with this Franchise and with applicable law, the City shall have the right to extend the franchise term for an additional period so as to be co-terminus with any franchise then-held by the incumbent cable operator. 5. Compliance with Applicable Laws, Resolutions and Ordinances. a. The terms of this Franchise shall define the contractual rights and obligations of Grantee with respect to the provision of Cable Service and operation of the System in City. However, the Grantee shall at all times during the term of this Franchise be subject to all lawful exercise of the police power, local generally applicable ordinance authority, and eminent domain rights of City. Except as provided below, any modification or amendment to this Franchise, or the rights or obligations contained herein, must be within the lawful exercise of City's police power, in which case the provision(s) modified or amended herein shall be specifically referenced in an ordinance of the City authorizing such amendment or modification. This Franchise may also be modified or amended with the written consent of Grantee as provided in Section herein. b. Grantee shall comply with the terms of any City ordinance or regulation of general applicability which addresses usage of the Rights-of-Way within City which may have the effect of superseding, modifying or amending the terms of this franchise related to the construction standard with the exception of Section 4.2 herein, except that Grantee shall not, through application of such City ordinance or regulation of Rights-of-Way, be subject to additional burdens with respect to usage of Rights-of-Way which exceed burdens on similarly situated Rights-of-Way users. 6 471173v6 RJV MA151-4 Packet Page Number 91 of 184 H1: Attachment c. In the event of any conflict between Section 4.2 of this Franchise and any lawfully applicable City ordinance or regulation which addresses usage of the Rights-of-Way, the conflicting terms in Section 4.2 of this Franchise shall be not be superseded by such City ordinance or regulation, except that Grantee shall not, through application of such City ordinance or regulation of Rights-of-Way, be subject to additional burdens with respect to usage of Rights-of-Way which exceed burdens on similarly situated Rights-of-Way users. d. In the event any lawfully applicable City ordinance or regulation which addresses usage of the Rights-of-Way adds to, modifies, amends, or otherwise differently addresses issues addressed in Section 4.2 of this Franchise, Grantee shall not be required to comply with such ordinance or regulation of general applicability, regardless of which requirement was first adopted except that Grantee shall not, through application of such City ordinance or regulation of Rights-of-Way, be subject to additional burdens with respect to usage of Rights-of-Way which exceed burdens on similarly situated Rights-of- Way users. e. In the event Grantee cannot determine how to comply with any Right-of-Way requirement of City, whether pursuant to this Franchise or other requirement, Grantee shall immediately provide written notice of such question, including Grantee's proposed interpretation, to the City. The City or Commission shall provide a written response within fourteen (14) days of receipt indicating how the requirements cited by Grantee apply. Grantee may proceed in accordance with its proposed interpretation in the event a written response is not received within seventeen (17) days of mailing or delivering such written question. 6. Rules of Grantee. The Grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable said Grantee to exercise its rights and perform its obligations under this Franchise and to assure uninterrupted service to each and all of its Subscribers; provided that such rules, regulations, terms and conditions shall not be in conflict with provisions hereto, the rules of the FCC, the laws of the State of Minnesota, City, or any other body having lawful jurisdiction. 7. Territorial Area Involved. This Franchise is granted for the corporate boundaries of City, as it exists from time to time. In the event of annexation by City, or as development occurs, any new territory shall become part of the territory for which this Franchise is granted. Access to cable service shall not be denied to any group of potential residential cable Subscribers because of the income of the residents of the area in which such group resides. 8. Line Extension. Grantee shall have a line extension obligation at such time that Grantee provides Cable Service to more than fifty percent (50%) of all subscribers receiving facilities- based Cable Service from both the Grantee and any other provider(s) of cable service within the City. At that time, the City, in its reasonable discretion and after meeting with Grantee, shall determine the timeframe to complete deployment to the remaining households in the City, including a density requirement that is the same or similar to the requirement of the incumbent franchised cable operator. 7 471173v6 RJV MA151-4 Packet Page Number 92 of 184 H1: Attachment 9. Written Notice. All notices, reports, or demands required to be given in writing under this Franchise shall be deemed to be given when delivered personally to any officer of Grantee or City's Administrator of this Franchise or forty-eight (48) hours after it is deposited in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the party to whom notice is being given, as follows: If to City: City of Maplewood Attention: City Manager 1830 County Road B East Maplewood, MN 55109-2702 If to Grantee: Qwest Broadband Services, Inc. d/b/a CenturyLink 1801 California St., 10th Flr. Denver, CO 80202 Attn: Public Policy With copies to: Qwest Broadband Services Inc., d/b/a CenturyLink, 200 S. 5th Street, 21st Flr. Minneapolis, MN 55402, Attn: Public Policy Such addresses may be changed by either party upon notice to the other party given as provided in this Section. SECTION 3. CONSTRUCTION STANDARDS 1. Registration, Permits and Construction Codes. a. Grantee shall strictly adhere to all state and local laws and building and zoning codes currently or hereafter applicable to location, construction, installation, operation or maintenance of the System in City and give due consideration at all times to the aesthetics of the property. b. Failure to obtain permits or comply with permit requirements shall be grounds for revocation of this Franchise, or any lesser sanctions provided herein or in any other applicable law. 2. Repair of Rights-of-Way and Property. Any and all Rights-of-Way, or public or private property, which are disturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance, expansion, extension or reconstruction of the System shall be promptly and fully restored by Grantee, at its expense, to the same condition as that prevailing prior to Grantee's work to the extent consistent with applicable statutes and rules. If Grantee shall fail to promptly perform the restoration required herein, after written request of City and reasonable opportunity to satisfy that request, City shall have the right to put the Rights-of-Way, public, or private property back into good condition. In the event City determines that Grantee is responsible for such disturbance or damage, Grantee shall be obligated to fully reimburse City for such restoration. 8 471173v6 RJV MA151-4 Packet Page Number 93 of 184 H1: Attachment 3. Conditions on Right-of-Way Use. a. Nothing in this Franchise shall be construed to prevent City from constructing, maintaining, repairing or relocating sewers; grading, paving, maintaining, repairing, relocating and/or altering any Right-of-Way; constructing, laying down, repairing, maintaining or relocating any water mains; or constructing, maintaining, relocating, or repairing any sidewalk or other public work. b. All System transmission and distribution structures, lines and equipment erected by the Grantee within City shall be located so as not to obstruct or interfere with the use of Rights-of-Way except for normal and reasonable obstruction and interference which might occur during construction and to cause minimum interference with the rights of property owners who abut any of said Rights-of-Way and not to interfere with existing public utility installations. c. If at any time during the period of this Franchise City shall elect to alter or change the grade or location of any Right-of-Way, the Grantee shall, at its own expense, upon reasonable notice by City, remove and relocate its poles, wires, cables, conduits, manholes and other fixtures of the System, and in each instance comply with the reasonable and lawful standards and specifications of City. The Grantee shall not place poles, conduits, or other fixtures of System above or below ground where the same will interfere with any gas, electric, telephone, water or other utility fixtures and all such poles, conduits, or other fixtures placed in any Right-of-Way shall be so placed as to comply with all reasonable and lawful requirements of City. e. The Grantee shall, upon request of any Person holding a moving permit issued by City, temporarily move its wires or fixtures to permit the moving of buildings with the expense of such temporary removal to be paid by the Person requesting the same, and the Grantee shall be given not less than ten (10) days advance written notice to arrange for such temporary changes. f. The Grantee shall have the authority to trim any trees upon and overhanging the Rights-of-Way of City so as to prevent the branches of such trees from coming in contact with the wires and cables or other facilities of the Grantee. g. Grantee shall use its best efforts to give reasonable prior notice to any adjacent private property owners who will be negatively affected or impacted by Grantee's work in the Rights-of-Way. 9 471173v6 RJV MA151-4 Packet Page Number 94 of 184 H1: Attachment 4. Undergrounding of Cable. Grantee must place newly constructed System facilities underground in areas of City where all other utility lines are placed underground and may place System facilities on poles using aerial construction techniques where existing System facilities or other utility facilities are on poles or otherwise of aerial construction. Amplifier boxes and pedestal mounted terminal boxes may be placed above ground if existing technology reasonably requires, but shall be of such size and design and shall be so located as not to be unsightly or unsafe, all pursuant to any required plans submitted with Grantee's permit application(s) and approved by City. 5. Installation of Facilities. No poles, conduits, amplifier boxes, pedestal mounted terminal boxes, similar structures, or other wire-holding structures shall be erected or installed by the Grantee without required permit of City. 6. Safety Requirements. a. The Grantee shall at all times employ ordinary and reasonable care and shall install and maintain in use nothing less than commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage or injuries. b. The Grantee shall install and maintain its System and other equipment in accordance with City's codes and the requirements of the National Electric Safety Code and all other applicable FCC, state and local regulations, and in such manner that they will not interfere with City communications technology related to health, safety and welfare of the residents. c. All System structures, and lines, equipment and connections in, over, under and upon the Rights-of-Way of City, wherever situated or located, shall at all times be kept and maintained in good condition, order, and repair so that the same shall not menace or endanger the life or property of City or any Person. SECTION 4. DESIGN PROVISIONS 1. System Design and Capacity. a. The Cable System shall have a bandwidth capable of providing the equivalent of a typical 750 MHz Cable System. Recognizing that the City has limited authority under federal law to designate the technical method by which Grantee provides Cable Service, as of the Effective Date of this Franchise, Grantee provides its Cable Service utilizing two (2) different methods. First, using a PON platform, the Grantee provides Cable Service to some Qualified Living Units by connecting fiber directly to the household ("FTTP"). Second, the Grantee provides Cable Service to some Qualified Living Units by deploying fiber into the neighborhoods and using the existing copper infrastructure to increase broadband speeds ("FTTN"). In both the FTTP and FTTN footprint, a household capable of receiving a minimum of 25 Mbps downstream will generally be capable of receiving Cable Service after Grantee performs certain network grooming and conditioning. 10 471173v6 RJV MA151-4 Packet Page Number 95 of 184 H1: Attachment b. Grantee agrees to maintain the Cable System in a manner consistent with, or in excess of the specifications herein throughout the term of the Franchise with sufficient capability and technical quality to enable the implementation and performance of all the requirements of this Franchise, including the exhibits hereto, and in a manner which meets or exceeds applicable FCC technical quality standards at 47 C.F.R. § 76 Subpart K, regardless of the particular format in which a signal is transmitted. c. System Maintenance. In all its construction and service provision activities, Grantee shall meet or exceed the construction, technical performance, extension and service requirements set forth in this Franchise. d. Emergency Alert Capability. At all times during the term of this Franchise, Grantee shall provide and maintain an Emergency Alert System (EAS) consistent with applicable federal law and regulations including 47 C.F.R., Part 11, and any Minnesota State Emergency Alert System requirements. The City may identify authorized emergency officials for activating the EAS consistent with the Minnesota State Emergency Statewide Plan (“EAS Plan”). The City may also develop a local plan containing methods of EAS message distribution, subject to Applicable Laws and the EAS Plan. Nothing in this section is intended to expand Grantee’s obligations beyond that which is required by the EAS Plan and Applicable Law. e. Standby Power. Grantee shall provide standby power generating capacity at the Cable System control center and at all nodes (“Node” means the transition point between optical light transmission and RF transmission of signals being delivered to and received from the Subscriber’s premises). Grantee shall maintain standby power system supplies, rated at least at two (2) hours’ duration, throughout the trunk and distribution networks. In addition, Grantee shall have in place throughout the Franchise term a plan, and all resources necessary for implementation of the plan, for dealing with outages of more than two (2) hours. f. Grantee shall comply with the applicable technical standards promulgated by the FCC relating to Cable Systems pursuant to Title 47, Section 76, Subpart K of the Code of Federal Regulations, as may be amended or modified from time to time. g. Grantee shall install and maintain its Cable System in accordance with the applicable requirements of the National Electrical Safety Code, and in such manner that the Cable System shall not interfere with any installations of the City or any public utility or institutional utility, or any franchisee, licensee or permittee of the City. h. Grantee shall provide and put in use such equipment and appliances as in a manner so as to prevent injury to the wires, pipes, structures, and property belonging to the City or to any Person within the City. 11 471173v6 RJV MA151-4 Packet Page Number 96 of 184 H1: Attachment 2. Cable Service Availability. Initial Build Out. No later than the second anniversary of the Effective Date of this Franchise, Grantee shall: 1) be capable of serving a minimum of fifteen percent (15%) of the City’s households with Cable Service; provided, however, Grantee will make its best efforts to complete such deployment within a shorter period of time, and; 2) make available and offer Cable Service to all Qualified Living Units, as indentified in the reports and maps required herein showing the total number of Qualified Living Units as of the Effective Date and quarterly thereafter. Grantee shall not deactivate any activated Remote Terminals once activated, nor withdraw the availability of Cable Service to any Qualified Living Unit (except due to non- payment or other customer compliance matter), without the prior approval of the City. In addition, Grantee commits that a significant portion of its investment will be targeted to areas below the median income in the City. Quarterly Meetings. In order to permit the City to monitor and enforce this Franchise, the Grantee shall, upon demand, promptly make available to the City maps and other documentation showing exactly where within the City the Grantee is currently providing, or able to provide, Cable Service. Grantee shall meet with the City, not less than once quarterly, to demonstrate Grantee’s compliance with the provisions of this section concerning the deployment of Cable Services in the City. In order to permit the City to monitor and enforce the provisions of this section and other provisions of this Franchise, the Grantee shall, commencing on or about April 15, 2016, and continuing throughout the term of this Franchise, meet quarterly with the City and make available reports and maps showing the City the following information: (a) The total number of Living Units throughout the City; (b) The total number of Qualified Living Units as of the Effective Date and each subsequent calendar quarter; (c) Information demonstrating Grantee commitment that a significant portion of Grantee’s initial investment and Grantee’s deployment of Cable Services in the City has been targeted to households below the City’s median household income; and (d) A list of the public buildings and educational institutions that are Qualified Living Units in the City In addition, at each quarterly meeting the Grantee will provide to the City a written summary (on a trade secret basis if Grantee so desires) of the foregoing information. Additional Build-Out Based on Market Success. If, at any quarterly meeting, including any quarterly meeting prior to the second anniversary of the Effective Date of this Franchise as referenced in Section 13 herein, Grantee is actually providing Cable Service to twenty seven and one-half percent (27.5%) of the Qualified Living Units (households capable of receiving Cable Service), then Grantee agrees the minimum build-out commitment shall increase to include an additional fifteen (15%) of the total households in the City within two (2) years from the quarterly meeting; provided, however, the Grantee shall make its best efforts to complete such deployment within a shorter period of time. 12 471173v6 RJV MA151-4 Packet Page Number 97 of 184 H1: Attachment For example, if, at a quarterly meeting with the City, Grantee shows that it is capable of serving sixty percent (60%) of the households in the City with Cable Service and is actually serving thirty percent (30%) of those households with Cable Service, then Grantee will agree to serve an additional fifteen percent (15%) of the total households in the City no later than two (2) years after that quarterly meeting (a total of seventy-five percent (75%) of the total households). This additional build-out based on market success shall continue until every household in the City is served. 3. Interruption of Service. The Grantee shall interrupt Service only for good cause and for the shortest time possible. Such interruption shall occur during periods of minimum use of the System. If Service is interrupted for a total period of more than forty eight (48) hours in any thirty (30) day period, Subscribers shall, upon request, be credited pro rata for such interruption. 4. FCC Reports. The results of any tests required to be filed by Grantee with the FCC, as it relates to Cable Service pursuant to this Franchise, shall upon request of City also be filed with the City or its designee within ten (10) days of the conduct of such tests. 5. Nonvoice Return Capability. Grantee is required to use cable and associated electronics having the technical capacity for nonvoice return communications. 6. Lockout Device. Upon the request of a Subscriber, Grantee shall make available a Lockout Device at no additional charge to Subscribers. 7. System Design. a. The System shall have the capability to carry community (PEG) programming originated from other Minneapolis/St. Paul metropolitan area franchising authorities. b. Grantee shall provide a discrete, non-public, video interconnect network, from an agreed upon demarcation point at the City’s Master Control Center to Grantee's headend. The video interconnect network shall not exceed 50 Mbps of allocated bandwidth, allowing the City and PEG operators that have agreed with Grantee to share (send and receive) live and recorded programming for playback on their respective systems. c. Where available the Grantee shall provide the video interconnect network and the network equipment necessary for the high-priority transport of live multicast HD/SD video streams as well as lower-priority file-sharing. Grantee shall provide 50 Mbps bandwidth for each participating PEG entity to send its original programming, receive at least two additional multicast HD/SD streams from any other participating PEG entity, and allow the transfer of files. Each participating PEG entity is responsible for encoding its own SD/HD content in suitable bit rates to be transported by the video interconnect network without exceeding the 50 Mbps of allocated bandwidth. 13 471173v6 RJV MA151-4 Packet Page Number 98 of 184 H1: Attachment 8. System Performance.. a. Grantee shall interrupt Service only for good cause and for the shortest time possible. Such interruption shall occur during periods of minimum use of the System. If Service is interrupted for a total period of more than forty eight (48) hours in any thirty (30) day period, Subscribers shall, upon request, be credited pro rata for such interruption. b. Special Testing. The City shall have the right to inspect all construction or installation work performed pursuant to the provisions of the Franchise. In addition, the City may require special testing of a location or locations within the System if there is a particular matter of controversy or unresolved complaints regarding such construction or installation work or pertaining to such location(s). Demand for such special tests may be made on the basis of complaints received or other evidence indicating an unresolved controversy or noncompliance. Such tests shall be limited to the particular matter in controversy or unresolved complaints. The City shall endeavor to so arrange its request for such special testing so as to minimize hardship or inconvenience to Grantee or to the Subscribers caused by such testing. c. Before ordering such tests, Grantee shall be afforded thirty (30) days following receipt of written notice to investigate and, if necessary, correct problems or complaints upon which tests were ordered. The City shall meet with Grantee prior to requiring special tests to discuss the need for such and, if possible, visually inspect those locations which are the focus of concern. If, after such meetings and inspections, City wishes to commence special tests and the thirty (30) days have elapsed without correction of the matter in controversy or unresolved complaints, the tests shall be conducted at Grantee's expense by a qualified engineer selected by City and Grantee, and Grantee shall cooperate in such testing. d. FCC Reports. The results of any tests related to the City required to be filed by Grantee with the FCC shall upon request of City also be filed with the City or its designee within ten (10) days of the conduct of such tests. e. Nonvoice Return Capability. Grantee is required to use cable and associated electronics having the technical capacity for nonvoice return communications. SECTION 5. ACCESS CHANNEL(S) PROVISIONS 1. Public, Educational and Government Access. a. Within 120 days of Effective Date, the Grantee shall make available one (1) channel on the Basic Service Tier to be used for Government access programming. On a future date to be mutually agreed upon by the Grantee and the City, , the Grantee shall make available up to four (4) additional channels to be used for PEG access programming on the Basic Service Tier. This obligation on Grantee shall terminate 365 days after the Effective Date. These channels will be located at Channels 8056-8060 (“Access Channels”). 14 471173v6 RJV MA151-4 Packet Page Number 99 of 184 H1: Attachment If the City delivers programming to Grantee in HD, then Grantee shall make the Access Channel(s) carrying such programming available to Subscribers in both HD and SD. Thus, if City delivers all PEG access programming in HD, the Grantee will provide the equivalent of ten (10) Access Channels for such programming (5 HD; 5 SD). The City has the sole discretion to designate the use of each Access Channel for public, educational, or governmental purposes. b. Grantee shall provide a technically reliable path for upstream and downstream transmission of the Access Channels, which will in no way degrade the technical quality of the Access Channels, from an agreed upon demarcation point at the City’s Master Control Center and from any other PEG access programming locations designated by the City, to Grantee’s headend, on which all Access Channels shall be transported for distribution on Grantee’s subscriber network. The Access Channels shall be delivered without degradation to Subscribers. Grantee may meet the obligations of this subsection by providing, free of charge and at no cost to the City, a direct fiber connection and necessary equipment to transmit PEG programming from the City’s designated programming locations and the permanent location of the City’s Master Control Center to the Grantee’s headend (“PEG Origination Connection”). As necessary, the Grantee shall undertake construction of direct connections and necessary equipment to each of the programming origination sites as identified by the City within a reasonable period of time taking into consideration weather and related technical issues. c. The City will give Grantee written notice detailing the point of origination and the capability sought by the City. The Access Channels may be renumbered and moved by the Grantee upon thirty (30) days’ notice to Subscribers and the City; provided, that in such event the City is programming the channel(s) Grantee shall pay all reasonable costs or expenses arising out of the renumbering and moving of any of the above-listed channels including, but not limited to, equipment necessary to effect the change at the programmer's production or receiving facility (school frequency routing equipment, etc.) This paragraph shall not apply to Regional Channel 6. d. At such time the City is programming four (4) or more of the Access Channels such channels may be made available through a multi-channel display (i.e. a picture in picture feed) on a single TV screen called a “mosaic” where a Subscriber can access via an interactive video menu any of the PEG access channels (the “Maplewood Mosaic”). The Maplewood Mosaic will be located at a Channel mutually agreed to by the Grantee and City in the area of the channel lineup where similar PEG mosaics are located. The Maplewood Mosaic will contain only Access Channels authorized by the City. 15 471173v6 RJV MA151-4 Packet Page Number 100 of 184 H1: Attachment e. Video on Demand. Grantee shall provide Video on Demand service (“VOD”) for PEG access programming. The VOD service to be provided herein shall be limited to up to twenty (20) hours per month. The City will be solely responsible for determining programming priority and will be responsible for providing Grantee 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. 2. Charges for Use. Channel time and playback of prerecorded programming on the PEG access and community program channel(s) must be provided without charge to City and the public. 3. Access Rules. City, or its designee, shall implement rules for use of any access channel(s). 4. Access Support. a. Grantee will collect from Subscribers and remit to the City a monthly PEG Fee of $4.25 per subscriber, per month. The PEG Fee will be remitted to the City on a quarterly basis. The PEG Fee will be paid to the City at the same time as the Franchise Fee. Starting with the 2016 calendar year, the City may elect to increase, or decrease this fee based on the incumbent cable franchisee’s PEG support obligation, or the Consumer Price Index. Any such election must be made in writing to the Franchisee ninety (90) days prior to becoming effective. In no event shall the monthly per Subscriber fee be in an amount different from the incumbent cable provider. The PEG Fee may be used for operational or capital support of PEG programming. In the event the incumbent’s per Subscriber, per month collection and payment to the City is modified for any reason, including, for example, due to renewal of the incumbent’s franchise on different terms or the incumbent’s re-calculation of the amount due under its then-existing franchise, the parties agree to work cooperatively, in good faith, to modify the Grantee’s PEG support payment obligation accordingly. As deemed necessary or appropriate, the parties may agree to amend this Franchise for such purpose. b. Grantee shall provide the City two (2) 30-second ad avails during periods in which ample unsold/unused air time on such channels exists for City public service announcements (PSAs), free of charge, during the term of the Franchise, on a run of schedule basis. The ad avails shall be produced by the City to announce, identify, or promote community television. Grantee shall also print and mail a post card promoting community programming, to households in the City subscribing to Grantee’s Cable Service at no cost to the City, no less frequently than twice per year, or at such time as a Access Channel is moved or relocated, upon the written request of the City. The post card shall be designed by the City and shall conform to the Grantee's standards and policies for size and weight. Any post card denigrating the Grantee, its service or its programming is not permitted. 16 471173v6 RJV MA151-4 Packet Page Number 101 of 184 H1: Attachment 5. Regional Channel 6. Grantee shall designate standard VHF Channel 6 for uniform regional channel usage to the extent required by state law. 6. State and Federal Law Compliance. Satisfaction of the requirements of this Section satisfies any and all of Grantee's state and federal law requirements of Grantee with respect to PEG access. SECTION 6. INSTITUTIONAL NETWORK (I-NET) PROVISIONS AND RELATED COMMITMENTS 1. Grantee acknowledges that the City has acquired I-Net capacity, facilities, interconnection, services and resources from existing franchised cable service providers to design, construct and operate an Institutional Network and to facilitate PEG Institutions’ uses of the I-Net. Grantee shall provide additional connectivity for PEG access programming purposes as provided in Section 5.1(b) and (c) above. The parties acknowledge that the public interest would not be served by duplicating existing I-Net facilities or services provided under other cable services franchises. 2. Subscriber Network Drops to Designated Buildings. a. Grantee shall provide, free of charge, Installation of one (1) subscriber network Drop, one (1) cable outlet, one (1) set top box or other device, if necessary, monthly Basic Cable Service to each public and private school, public library branch, police and fire station, community center and public building that requests a drop in writing, and to such other public institutions as the City may reasonably request from time to time provided such location is a Qualified Living Unit and not currently receiving service from another provider. b. The above referenced institutions may add outlets at its own expense, as long as such Installation meets Grantee's standards. SECTION 7. OPERATION AND ADMINISTRATION PROVISIONS 1. Administration of Franchise. The City Manager or other designee shall have continuing regulatory jurisdiction and supervision over the System and the Grantee's operation under the Franchise. The City, or its designee, may issue such reasonable rules and regulations concerning the construction, operation and maintenance of the System as are consistent with the provisions of the Franchise and law. The City may not unilaterally alter the material provisions of this Franchise. 2. Delegated Authority. The City may appoint a citizen advisory body or a Joint Powers Commission, or may delegate to any other body or Person authority to administer the Franchise and to monitor the performance of the Grantee pursuant to the Franchise. Grantee shall cooperate with any such delegatee of City. 17 471173v6 RJV MA151-4 Packet Page Number 102 of 184 H1: Attachment 3. Franchise Fee. a. During the term of the Franchise, Grantee shall pay quarterly to City, or properly appointed delegatee, a Franchise Fee in an amount equal to five percent (5%) of its quarterly Gross Revenues, or such other amounts as are subsequently permitted by federal statute. b. Any payments due under this provision shall be payable quarterly. The payment shall be made within thirty (30) days of the end of each of Grantee's fiscal quarters together with a report showing the basis for the computation. c. All amounts paid shall be subject to audit and recomputation by City and acceptance of any payment shall not be construed as an accord that the amount paid is in fact the correct amount. 4. Access to Records. The City shall have the right to inspect, upon reasonable notice and during normal business hours, or require Grantee to provide within a reasonable time copies of any records maintained by Grantee which relate to System operations including specifically Grantee's accounting and financial records. 5. Reports and Maps. a. Grantee shall file with the City, at the time of payment of the Franchise Fee, a report of all Gross Revenues in form and substance as required by City. b. Grantee shall prepare and furnish to City, at the times and in the form prescribed, such other reasonable reports with respect to Grantee's operations pursuant to this Franchise as City may require. City shall make its best effort to protect proprietary or trade secret information all consistent with state and federal law. c. If required by the Right-of-Way Ordinance, Grantee or its affiliate, as applicable, shall make available to the City Manager the maps, plats, and permanent records of the location and character of all facilities constructed, including underground facilities, and Grantee or its affiliate, as applicable, shall make available to the City updates of such maps, plats and permanent records annually if changes have been made in the System. 6. Periodic Evaluation. a. The City may require evaluation sessions one time during the term of this Franchise, upon fifteen (30) days written notice to Grantee. 18 471173v6 RJV MA151-4 Packet Page Number 103 of 184 H1: Attachment b. Topics which may be discussed at any evaluation session may include, but are not limited to, application of new technologies, System performance, programming offered, access channels, facilities and support, municipal uses of cable, subscriber rates, customer complaints, amendments to this Franchise, judicial rulings, FCC rulings, line extension policies and any other topics City deems relevant. c. As a result of a periodic review or evaluation session, upon notification from City, Grantee shall meet with City and undertake good faith efforts to reach agreement on changes and modifications to the terms and conditions of the Franchise which are legally, economically and technically feasible. SECTION 8. GENERAL FINANCIAL AND INSURANCE PROVISIONS 1. Performance Bond. a. Within 30 days after the effective date and at all times thereafter, until the Grantee has liquidated all of its obligations with City, the Grantee shall furnish a bond to the City in the amount of $100,000.00 in a form and with such sureties as reasonably acceptable to City. This bond will be conditioned upon the faithful performance by the Grantee of its Franchise obligations and upon the further condition that in the event the Grantee shall fail to comply with any law, ordinance or regulation governing the Franchise, there shall be recoverable jointly and severally from the principal and surety of the bond any damages or loss suffered by City as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the Grantee, plus a reasonable allowance for attorneys' fees and costs, up to the full amount of the bond, and further guaranteeing payment by the Grantee of claims, liens and taxes due City which arise by reason of the construction, operation, or maintenance of the System. The rights reserved by City with respect to the bond are in addition to all other rights City may have under the Franchise or any other law. City may, from year to year, in its sole discretion, reduce the amount of the bond. b. The time for Grantee to correct any violation or liability, shall be extended by City if the necessary action to correct such violation or liability is, in the sole determination of City, of such a nature or character as to require more than thirty (30) days within which to perform, provided Grantee provides written notice that it requires more than thirty (30) days to correct such violations or liability, commences the corrective action within the thirty (30) days period and thereafter uses reasonable diligence to correct the violation or liability. c. In the event this Franchise is revoked by reason of default of Grantee, City shall be entitled to collect from the performance bond that amount which is attributable to any damages sustained by City as a result of said default or revocation. 19 471173v6 RJV MA151-4 Packet Page Number 104 of 184 H1: Attachment d. Grantee shall be entitled to the return of the performance bond, or portion thereof, as remains sixty (60) days after the expiration of the term of the Franchise or revocation for default thereof, provided City has not notified Grantee of any actual or potential damages incurred as a result of Grantee's operations pursuant to the Franchise or as a result of said default. e. The rights reserved to City with respect to the performance bond are in addition to all other rights of City whether reserved by this Franchise or authorized by law, and no action, proceeding or exercise of a right with respect to the performance bond shall affect any other right City may have. 2. Letter of Credit. a. At the time of acceptance of this Franchise, Grantee shall deliver to City an irrevocable and unconditional Letter of Credit, in form and substance acceptable to City, from a National or State bank approved by Commission, in the amount of $25,000.00. b. The Letter of Credit shall provide that funds will be paid to City, as appropriate, upon written demand of City, and in an amount solely determined by City in payment for penalties charged pursuant to this Section, in payment for any monies owed by Grantee to City or any person pursuant to its obligations under this Franchise, or in payment for any damage incurred by City or any person as a result of any acts or omissions by Grantee pursuant to this Franchise. c. In addition to recovery of any monies owed by Grantee to City or any person or damages to City or any person as a result of any acts or omissions by Grantee pursuant to the Franchise, City, in its sole discretion after notification to Grantee and a minimum allowance of thirty (30) days to cure, may charge to and collect from the Letter of Credit the following penalties: i. For failure to provide data, documents, reports or information or to cooperate with City during an application process or system review or as otherwise provided herein, the penalty shall be $250.00 per day for each day, or part thereof, such failure occurs or continues. ii. Fifteen (15) days following notice from City of a failure of Grantee to comply with construction, operation or maintenance standards, the penalty shall be $500.00 per day for each day, or part thereof, such failure occurs or continues. iii . For failure to provide the services Grantee has proposed, including, but not limited to, the implementation and the utilization of the access channels and the maintenance and/or replacement of the equipment and other facilities, the penalty shall be $500.00 per day for each day, or part thereof, such failure occurs or continues. 20 471173v6 RJV MA151-4 Packet Page Number 105 of 184 H1: Attachment iv. For failure to comply with any of the provisions of this Franchise, or other applicable City ordinance for which a penalty is not otherwise specifically provided pursuant to this paragraph c, the penalty shall be $250.00 per day for each day, or part thereof, such failure occurs or continues up to a maximum of 30 days. d. Each violation of any provision of this Franchise shall be considered a separate violation for which a separate penalty can be imposed; provided, however, that no more than one penalty amount shall be imposed for each separate violation. e. Whenever City or Commission finds that Grantee has violated one or more terms, conditions or provisions of this Franchise, or for any other violation contemplated in Subparagraph c. above, a written notice shall be given to Grantee informing it of such violation. At any time after thirty (30) days (or such longer reasonable time which, in the determination of City or Commission, is necessary to cure the alleged violation) following local receipt of notice, provided Grantee remains in violation of one or more terms, conditions or provisions of this Franchise, in the sole opinion of City, City may draw from the Letter of Credit all penalties and other monies due City or Commission from the date of the local receipt of notice. f. Whenever the Letter of Credit is drawn upon, Grantee may, within seven (7) days of such draw, notify City, in writing that there is a dispute as to whether a violation or failure has in fact occurred. Such written notice by Grantee to City shall specify with particularity the matters disputed by Grantee. All penalties shall continue to accrue and City may continue to draw from the Letter of Credit during any appeal pursuant to this subparagraph f. i. City shall hear Grantee's dispute within sixty (60) days and render a final decision within sixty (60) days thereafter. ii. Upon the determination of City that no violation has taken place, City shall refund to Grantee, without interest, all monies drawn from the Letter of Credit by reason of the alleged violation. g. If said Letter of Credit or any subsequent Letter of Credit delivered pursuant thereto expires prior to thirty (30) months after the expiration of the term of this Franchise, it shall be renewed or replaced during the term of this Franchise to provide that it will not expire earlier than thirty (30) months after the expiration of this Franchise. The renewed or replaced Letter of Credit shall be of the same form and with a bank authorized herein and for the full amount stated in Paragraph A of this Section. 21 471173v6 RJV MA151-4 Packet Page Number 106 of 184 H1: Attachment h. If City draws upon the Letter of Credit or any subsequent Letter of Credit delivered pursuant hereto, in whole or in part, Grantee shall replace or replenish to its full amount the same within ten (10) days and shall deliver to City a like replacement Letter of Credit or certification of replenishment for the full amount stated in Section 8 herein as a substitution of the previous Letter of Credit. This shall be a continuing obligation for any draws upon the Letter of Credit. i. If any Letter of Credit is not so replaced or replenished, City may draw on said Letter of Credit for the whole amount thereof and use the proceeds as City determines in its sole discretion. The failure to replace or replenish any Letter of Credit may also, at the option of the City, be deemed a default by Grantee under this Franchise. The drawing on the Letter of Credit by City, and use of the money so obtained for payment or performance of the obligations, duties and responsibilities of Grantee which are in default, shall not be a waiver or release of such default. j. The collection by City, of any damages, monies or penalties from the Letter of Credit shall not affect any other right or remedy available to either, nor shall any act, or failure to act, by City , pursuant to the Letter of Credit, be deemed a waiver of any right of City , pursuant to this Franchise or otherwise. 3. Indemnification of City. a. City, its officers, boards, committees, commissions, elected officials, employees and agents shall not be liable for any loss or damage to any real or personal property of any Person, or for any injury to or death of any Person, to the extent caused by Grantee's construction, operation, maintenance, repair or removal of the System or by any other action of Grantee with respect to this Franchise. b. Grantee shall contemporaneously with this Franchise execute an Indemnity Agreement in the form attached hereto which shall indemnify, defend and hold the City harmless for any claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and reasonable attorneys’ fees or reasonable expenses arising out of the actions of the City in granting this Franchise. This obligation includes any claims by another franchised cable operator against the City that the terms and conditions of this Franchise are less burdensome than another franchise granted by the city or that this Franchise does not satisfy the requirements of applicable state law(s). Grantee shall additionally indemnify, defend, and hold harmless City, its officers, boards, committees, commissions, elected officials, employees and agents, from and against all liability, damages, and penalties which they may legally be required to pay as a result of the City’s exercise, administration, or enforcement of the Franchise. On or before the Effective Date, Grantee shall execute a separate indemnity agreement in a form acceptable to the City, which shall indemnify, defend and hold the City harmless for any claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and reasonable attorneys’ fees or reasonable expenses arising out of the actions of the City in granting this Franchise. 22 471173v6 RJV MA151-4 Packet Page Number 107 of 184 H1: Attachment This obligation includes any claims by the incumbent cable operator against the City that the terms and conditions of this Franchise are less burdensome than the incumbent’s franchise, or that this Franchise does not satisfy the requirements of applicable state law(s). c. Nothing in this Franchise relieves a Person, from liability arising out of the failure to exercise reasonable care to avoid injuring the Grantee's facilities while performing work connected with grading, regarding, or changing the line of a Right-of-Way or public place or with the construction or reconstruction of a sewer or water system. d. The Grantee shall not be required to indemnify the City for negligence or misconduct on the part of the City or its officers, boards, committees, commissions, elected or appointed officials, employees, volunteers or agents, including any loss or claims. 4. Insurance. a. As a part of the indemnification provided in Section, but without limiting the foregoing, Grantee shall file with City at the time of its acceptance of this Franchise, and at all times thereafter maintain in full force and effect at its sole expense, a comprehensive general liability insurance policy, including broadcaster's/cablecaster's liability and contractual liability coverage, in protection of the Grantee, and the City, its officers, elected officials, boards, commissions, agents and employees for any and all damages and penalties which may arise as a result of this Franchise. The policy or policies shall name the City as an additional insured, and in their capacity as such, City officers, elected officials, boards, commissions, agents and employees. b. The policies of insurance shall be in the sum of not less than $1,000,000.00 for personal injury or death of any one Person, and $2,000,000.00 for personal injury or death of two or more Persons in any one occurrence, $500,000.00 for property damage to any one person and $2,000,000.00 for property damage resulting from any one act or occurrence. c. The policy or policies of insurance shall be maintained by Grantee in full force and effect during the entire term of the Franchise. Each policy of insurance shall contain a statement on its face that the insurer will not cancel the policy or fail to renew the policy, whether for nonpayment of premium, or otherwise, and whether at the request of Grantee or for other reasons, except after sixty (60) days advance written notice have been provided to City. 23 471173v6 RJV MA151-4 Packet Page Number 108 of 184 H1: Attachment SECTION 9. SALE, ABANDONMENT, TRANSFER AND REVOCATION OF FRANCHISE 1. City's Right to Revoke. a. In addition to all other rights which City has pursuant to law or equity, City reserves the right to commence proceedings to revoke, terminate or cancel this Franchise, and all rights and privileges pertaining thereto, if it is determined by City that: i. Grantee has violated material provisions(s) of this Franchise; or ii. Grantee has attempted to evade any of the provisions of the Franchise; or iii. Grantee has practiced fraud or deceit upon City. City may revoke this Franchise without the hearing required by herein if Grantee is adjudged a bankrupt. 2. Procedures for Revocation. a. City shall provide Grantee with written notice of a cause for revocation and the intent to revoke and shall allow Grantee thirty (30) days subsequent to receipt of the notice in which to correct the violation or to provide adequate assurance of performance in compliance with the Franchise. In the notice required herein, City shall provide Grantee with the basis of the revocation. b. Grantee shall be provided the right to a public hearing affording due process before the City Council prior to the effective date of revocation, which public hearing shall follow the thirty (30) day notice provided in subparagraph (a) above. City shall provide Grantee with written notice of its decision together with written findings of fact supplementing said decision. c. Only after the public hearing and upon written notice of the determination by City to revoke the Franchise may Grantee appeal said decision with an appropriate state or federal court or agency. d. During the appeal period, the Franchise shall remain in full force and effect unless the term thereof sooner expires or unless continuation of the Franchise would endanger the health, safety and welfare of any person or the public. 3. Abandonment of Service. Grantee may not abandon the System or any portion thereof, used exclusively for the provision of cable service, without having first given three (3) months written notice to City. Grantee may not abandon the System or any portion thereof, used exclusively for the provision of cable service, without compensating City for damages resulting from the abandonment, including all costs incident to removal of the System. 24 471173v6 RJV MA151-4 Packet Page Number 109 of 184 H1: Attachment 4. Removal After Abandonment, Termination or Forfeiture. a. In the event of termination or forfeiture of the Franchise or abandonment of the System, City shall have the right to require Grantee to remove all or any portion of the System used exclusively for the provision of cable service from all Rights-of-Way and public property within City. b. If Grantee 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 Grantee has failed to complete such removal within twelve (12) months after written notice of City's demand for removal is given, City shall have the right to apply funds secured by the Letter of Credit and Performance Bond toward removal and/or declare all right, title, and interest to the System to be in City with all rights of ownership including, but not limited to, the right to operate the System or transfer the System to another for operation by it. 5. Sale or Transfer of Franchise. a. No sale or transfer of the Franchise, or sale, transfer, or fundamental corporate change of or in Grantee, including, but not limited to, a fundamental corporate change in Grantee's parent corporation or any entity having a controlling interest in Grantee, the sale of a controlling interest in the Grantee's assets, a merger including the merger of a subsidiary and parent entity, consolidation, or the creation of a subsidiary or affiliate entity, shall take place until a written request has been filed with City requesting approval of the sale, transfer, or corporate change and such approval has been granted or deemed granted, provided, however, that said approval shall not be required where Grantee grants a security interest in its Franchise and/or assets to secure an indebtedness. Upon notice to City, Grantee may undertake legal changes necessary to consolidate the corporate or partnership structures with its affiliates provided there is no change in the controlling interests which could materially alter the financial responsibilities for the Grantee. b. Any sale, transfer, exchange or assignment of stock in Grantee, or Grantee's parent corporation or any other entity having a controlling interest in Grantee, so as to create a new controlling interest therein, shall be subject to the requirements of this Section. The term controlling interest as used herein is not limited to majority stock ownership, but includes actual working control in whatever manner exercised. c. The Grantee shall file, in addition to all documents, forms and information required to be filed by applicable law, the following: i. All contracts, agreements or other documents that constitute the proposed transaction and all exhibits, attachments, or other documents referred to therein which are necessary in order to understand the terms thereof. 25 471173v6 RJV MA151-4 Packet Page Number 110 of 184 H1: Attachment ii. A list detailing all documents filed with any state or federal agency related to the transaction including, but not limited to, the MPUC, the FCC, the FTC, the FEC, the SEC or MnDOT. Upon request, Grantee shall provide City with a complete copy of any such document; and iii. Any other documents or information related to the transaction as may be specifically requested by the City. d. City shall have such time as is permitted by federal law in which to review a transfer request. e. The Grantee shall reimburse City for all the reasonable legal, administrative, and consulting costs and fees associated with the City's review of any request to transfer. Nothing herein shall prevent Grantee from negotiating partial or complete payment of such costs and fees by the transferee. Grantee may not itemize any such reimbursement on Subscriber bills, but may recover such expenses in its subscriber rates. f. In no event shall a sale, transfer, corporate change, or assignment of ownership or control pursuant to subparagraph (a) or (b) of this Section be approved without the transferee becoming a signatory to this Franchise and assuming all rights and obligations thereunder, and assuming all other rights and obligations of the transferor to the City including, but not limited to, any adequate guarantees or other security instruments provided by the transferor. g. In the event of any proposed sale, transfer, corporate change, or assignment pursuant to subparagraph (a) or (b) of this Section, City shall have the right to purchase the System for the value of the consideration proposed in such transaction. City's right to purchase shall arise upon City's receipt of notice of the material terms of an offer or proposal for sale, transfer, corporate change, or assignment, which Grantee has accepted. Notice of such offer or proposal must be conveyed to City in writing and separate from any general announcement of the transaction. h. City shall be deemed to have waived its right to purchase the System pursuant to this Section only in the following circumstances: i. If City does not indicate to Grantee in writing, within sixty (60) days of receipt of written notice of a proposed sale, transfer, corporate change, or assignment as contemplated in Section 9 hereinabove, its intention to exercise its right of purchase; or ii. It approves the assignment or sale of the Franchise as provided within this Section. 26 471173v6 RJV MA151-4 Packet Page Number 111 of 184 H1: Attachment i. No Franchise may be transferred if City determines Grantee is in noncompliance of the Franchise unless an acceptable compliance program has been approved by City. The approval of any transfer of ownership pursuant to this Section shall not be deemed to waive any rights of City to subsequently enforce noncompliance issues relating to this Franchise even if such issues predated the approval, whether known or unknown to City. SECTION 10. PROTECTION OF INDIVIDUAL RIGHTS 1. Discriminatory Practices Prohibited. Grantee shall not deny service, deny access, or otherwise discriminate against Subscribers or general citizens on the basis of race, color, religion, national origin, sex, age, status as to public assistance, affectional preference, or disability. Grantee shall comply at all times with all other applicable federal, state, and city laws. 2. Subscriber Privacy. a. No signals including signals of a Class IV Channel may be transmitted from a Subscriber terminal for purposes of monitoring individual viewing patterns or practices without the express written permission of the Subscriber. Such written permission shall be for a limited period of time not to exceed one (1) year which may be renewed at the option of the Subscriber. No penalty shall be invoked for a Subscriber's failure to provide or renew such authorization. The authorization shall be revocable at any time by the Subscriber without penalty of any kind whatsoever. Such permission shall be required for each type or classification of Class IV Channel activity planned for the purpose of monitoring individual viewing patterns or practices. b. No lists of the names and addresses of Subscribers or any lists that identify the viewing habits of Subscribers shall be sold or otherwise made available to any party other than to Grantee or its agents for Grantee's service business use or to City for the purpose of Franchise administration, and also to the Subscriber subject of that information, unless Grantee has received specific written authorization from the Subscriber to make such data available. Such written permission shall be for a limited period of time not to exceed one (1) year which may be renewed at the option of the Subscriber. No penalty shall be invoked for a Subscriber's failure to provide or renew such authorization. The authorization shall be revocable at any time by the Subscriber without penalty of any kind whatsoever. c. Written permission from the Subscriber shall not be required for the conducting of System wide or individually addressed electronic sweeps for the purpose of verifying System integrity or monitoring for the purpose of billing. Confidentiality of such information shall be subject to the provision set forth in subparagraph (b) of this Section. 27 471173v6 RJV MA151-4 Packet Page Number 112 of 184 H1: Attachment SECTION 11. UNAUTHORIZED CONNECTIONS AND MODIFICATIONSUNAUTHORIZED CONNECTIONS AND MODIFICATIONS 1. Unauthorized Connections or Modifications Prohibited. It shall be unlawful for any firm, Person, group, company, corporation, or governmental body or agency, without the express consent of the Grantee, to make or possess, or assist anybody in making or possessing, any unauthorized connection, extension, or division, whether physically, acoustically, inductively, electronically or otherwise, with or to any segment of the System or receive services of the System without Grantee's authorization. 2. Removal or Destruction Prohibited. It shall be unlawful for any firm, Person, group, company, or corporation to willfully interfere, tamper, remove, obstruct, or damage, or assist thereof, any part or segment of the System for any purpose whatsoever, except for any rights City may have pursuant to this Franchise or its police powers. 3. Penalty. Any firm, Person, group, company, or corporation found guilty of violating this section may be fined not less than Twenty Dollars ($20.00) and the costs of the action nor more than Five Hundred Dollars ($500.00) and the costs of the action for each and every subsequent offense. Each continuing day of the violation shall be considered a separate occurrence. SECTION 12. MISCELLANEOUS PROVISIONS 1. Franchise Renewal. Any renewal of this Franchise shall be performed in accordance with applicable federal, state and local laws and regulations. The term of any renewed Franchise shall be limited to a period not to exceed fifteen (15) years. 2. Work Performed by Others. All applicable obligations of this Franchise shall apply to any subcontractor or others performing any work or services pursuant to the provisions of this Franchise, however, in no event shall any such subcontractor or other performing work obtain any rights to maintain and operate a System or provide Cable Service. Grantee shall provide notice to City of the name(s) and address(es) of any entity, other than Grantee, which performs substantial services pursuant to this Franchise. 3. Amendment of Franchise Ordinance. Grantee and City may agree, from time to time, to amend this Franchise. Such written amendments may be made subsequent to a review session pursuant to Section 4 or at any other time if City and Grantee agree that such an amendment will be in the public interest or if such an amendment is required due to changes in federal, state or local laws. Provided, however, nothing herein shall restrict City's exercise of its police powers. 28 471173v6 RJV MA151-4 Packet Page Number 113 of 184 H1: Attachment 4. Compliance with Federal, State and Local Laws. a. If any federal or state law or regulation shall require or permit City or Grantee to perform any service or act or shall prohibit City or Grantee from performing any service or act which may be in conflict with the terms of this Franchise, then as soon as possible following knowledge thereof, either party shall notify the other of the point in conflict believed to exist between such law or regulation. Grantee and City shall conform to state laws and rules regarding cable communications not later than one year after they become effective, unless otherwise stated, and to conform to federal laws and regulations regarding cable as they become effective. b. If any term, condition or provision of this Franchise or the application thereof to any Person or circumstance shall, to any extent, be held to be invalid or unenforceable, the remainder hereof and the application of such term, condition or provision to Persons or circumstances other than those as to whom it shall be held invalid or unenforceable shall not be affected thereby, and this Franchise and all the terms, provisions and conditions hereof shall, in all other respects, continue to be effective and complied with provided the loss of the invalid or unenforceable clause does not substantially alter the agreement between the parties. In the event such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision which had been held invalid or modified is no longer in conflict with the law, rules and regulations then in effect, said provision shall thereupon return to full force and effect and shall thereafter be binding on Grantee and City. 5. Nonenforcement by City. Grantee shall not be relieved of its obligations to comply with any of the provisions of this Franchise by reason of any failure or delay of City to enforce prompt compliance. City may only waive its rights hereunder by expressly so stating in writing. Any such written waiver by City of a breach or violation of any provision of this Franchise shall not operate as or be construed to be a waiver of any subsequent breach or violation. 6. Rights Cumulative. All rights and remedies given to City by this Franchise or retained by City herein shall be in addition to and cumulative with any and all other rights and remedies, existing or implied, now or hereafter available to City, at law or in equity, and such rights and remedies shall not be exclusive, but each and every right and remedy specifically given by this Franchise or otherwise existing or given may be exercised from time to time and as often and in such order as may be deemed expedient by City and the exercise of one or more rights or remedies shall not be deemed a waiver of the right to exercise at the same time or thereafter any other right or remedy. 7. Grantee Acknowledgment of Validity of Franchise. Grantee acknowledges that it has had an opportunity to review the terms and conditions of this Franchise and that under current law Grantee believes that said terms and conditions are not unreasonable or arbitrary, and that Grantee believes City has the power to make the terms and conditions contained in this Franchise 29 471173v6 RJV MA151-4 Packet Page Number 114 of 184 H1: Attachment SECTION 13. PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS 1. Publication: Effective Date. This Franchise shall be published in accordance with applicable local and Minnesota law. The Effective Date of this Franchise shall be the date of acceptance by Grantee in accordance with the provisions of Section. 2. Acceptance. a. Grantee shall accept this Franchise within sixty (60) of its enactment by the City Council, unless the time for acceptance is extended by City. Such acceptance by the Grantee shall be deemed the grant of this Franchise for all purposes provided, however, this Franchise shall not be effective until all City ordinance adoption procedures are complied with and all applicable timelines have run for the adoption of a City ordinance. In the event acceptance does not take place, or should all ordinance adoption procedures and timelines not be completed, this Franchise and any and all rights granted hereunder to Grantee shall be null and void. b. Upon acceptance of this Franchise, Grantee and City shall be bound by all the terms and conditions contained herein. c. Grantee shall accept this Franchise in the following manner: i. This Franchise will be properly executed and acknowledged by Grantee and delivered to City or its designee. ii. With its acceptance, Grantee shall also deliver any performance bond, letter of credit and insurance certificates required herein that are due but have not previously been delivered. DATED 30 Packet Page Number 115 of 184 H1: Attachment EXHIBIT A PEG access channels dedicated to Maplewood 14 - Maplewood Access 15 – Maplewood Access 16 - Maplewood Government Access (originates City Hall) 18 - Maplewood Access 19 - Maplewood Access 20 - ISD 622 Educational Access (narrowcast North St. Paul, Maplewood, Oakdale, Lake Elmo) 95 - Maplewood Access 98 - Maplewood Access 801 - Maplewood Access (HD simulcast) 31 Packet Page Number 116 of 184 H1: Attachment Indemnity Agreement INDEMNITY AGREEMENT made this ____ day of _____________________, 2016, by and between Qwest Broadband Services, Inc., a Delaware Corporation, party of the first part, hereinafter called “CenturyLink,” and the City of Maplewood, a Minnesota Municipal Corporation, party of the second part, hereinafter called “City.” WITNESSETH: WHEREAS, the City of Maplewood has awarded to Qwest Broadband Services, Inc. a franchise for the operation of a cable communications system in the City of Maplewood; and WHEREAS, the City has required, as a condition of its award of a cable communications franchise, that it be indemnified with respect to all claims and actions arising from the award of said franchise, NOW THEREFORE, in consideration of the foregoing promises and the mutual promises contained in this agreement and in consideration of entering into a cable television franchise agreement and other good and valuable consideration, receipt of which is hereby acknowledged, CenturyLink hereby agrees, at its sole cost and expense, to fully indemnify, defend and hold harmless the City, its officers, boards, commissions, employees and agents against any and all claims, suits, actions, liabilities and judgments for damages, cost or expense (including, but not limited to, court and appeal costs and reasonable attorneys’ fees and disbursements assumed or incurred by the City in connection therewith) arising out of the actions of the City in granting a franchise to CenturyLink. This includes any claims by another franchised cable operator against the City that the terms and conditions of the CenturyLink franchise are less burdensome than another franchise granted by the City or that the CenturyLink Franchise does not satisfy the requirements of applicable federal, state, or local law(s). The indemnification provided for herein shall not extend or apply to any acts of the City constituting a violation or breach by the City of the contractual provisions of the franchise ordinance, unless such acts are the result of a change in applicable law, the order of a court or administrative agency, or are caused by the acts of CenturyLink. The City shall give CenturyLink reasonable notice of the making of any claim or the commencement of any action, suit or other proceeding covered by this agreement. The City shall cooperate with CenturyLink in the defense of any such action, suit or other proceeding at the request of CenturyLink. The City may participate in the defense of a claim, but if CenturyLink provides a defense at CenturyLink’s expense then CenturyLink shall not be liable for any attorneys’ fees, expenses or other costs that City may incur if it chooses to participate in the defense of a claim, unless and until separate representation is required. If separate representation to fully protect the interests of both parties is or becomes necessary, such as a conflict of interest, in accordance with the Minnesota Rules of Professional Conduct, between the City and the counsel selected by CenturyLink to represent the City, CenturyLink shall pay, from the date such separate representation is required forward, all reasonable expenses incurred by the City in defending itself with regard to any action, suit or proceeding indemnified by CenturyLink. Provided, however, that in the event that such separate representation is or becomes necessary, and City desires to hire counsel or any other outside experts or consultants and desires CenturyLink to pay those expenses, then City shall be required to obtain CenturyLink’s consent to the engagement of such counsel, experts or consultants, such consent not to be unreasonably withheld. Notwithstanding the foregoing, the parties agree that the City may utilize at any time, at its own cost and expense, its own City Attorney or outside counsel with respect to any claim brought by another franchised cable operator as described in this agreement. Packet Page Number 117 of 184 H1: Attachment The provisions of this agreement shall not be construed to constitute an amendment of the cable communications franchise ordinance or any portion thereof, but shall be in addition to and independent of any other similar provisions contained in the cable communications franchise ordinance or any other agreement of the parties hereto. The provisions of this agreement shall not be dependent or conditioned upon the validity of the cable communications franchise ordinance or the validity of any of the procedures or agreements involved in the award or acceptance of the franchise, but shall be and remain a binding obligation of the parties hereto even if the cable communications franchise ordinance or the grant of the franchise is declared null and void in a legal or administrative proceeding. It is the purpose of this agreement to provide maximum indemnification to City under the terms set out herein and, in the event of a dispute as to the meaning of this Indemnity Agreement, it shall be construed, to the greatest extent permitted by law, to provide for the indemnification of the City by CenturyLink. This agreement shall be a binding obligation of and shall inure to the benefit of, the parties hereto and their successor's and assigns, if any. QWEST BROADBAND SERVICES, INC. Dated: _______________, 2016 By: __________________________________ Its: __________________________________ STATE OF LOUISIANA ) ) SS ) The foregoing instrument was acknowledged before me this ______ day of 2016, by ________________________, the _____________________ of Qwest Broadband Services, Inc., a Delaware Corporation, on behalf of the corporation. ___________________________________ Notary Public Commission Expires_________________ Packet Page Number 118 of 184 MEMORANDUM TO: City Council FROM: H. Alan Kantrud, General Counsel SUBJECT: CONSIDERATION OF APPROVAL OF SECOND READING (PASSAGE) OF CABLE TELEVISION FRANCHISE ORDINANCE FOR QWEST BROADBAND SERVICES d/b/a CENTURYLINK TO PROVIDE CABLE COMMUNICATIONS SERVICES DATE: February 1, 2016 INTRODUCTION Council authorized Staff to advertise and publish its intent to franchise for cable services in August 2015 using the statutory procedure laid out in Chapter 238 of the Minnesota Statutes. The City engaged outside counsel to assist in the 238 process and a request for applications was published. The City received an application from Qwest Broadband Services d/b/a CenturyLink, held a public hearing regarding the application and worked toward the final Franchise now before you, again, for second reading. BACKGROUND Staff has been working on this matter for 4+ months and the attached Franchise Ordinance is the culmination of those efforts. Since this is the second reading of this item the background is not going to be fully explored here. DISCUSSION The Franchise Ordinance before you that you are being asked to approve in its final form this evening shall enfranchise Centurylink (aka Qwest Broadband) to begin marketing cable services to Maplewood residents alongside Comcast. From anecdotal evidence CenturyLink materials discussing their products are perhaps already being sent to Maplewood residents (they do not need a franchise to do that). As discussed last Council meeting, this grant of authority has no effect on the services or service levels provided by Comcast. Nothing in the Franchise will create special advantages for either cable operator and no added expenses will be realized by the addition of CenturyLink to the market on the part of residential customers. For the benefit of any member of the public who is viewing this for the first time as part of the public hearing, the below executive summary of Ordinance is provided here again: • This is a franchise that is granted for five (5) years and is renewable for one (1) additional term. (Section 2 Article 4) H1-A Packet Page Number 119 of 184 2 • Due to the introduction of the service to the City, CenturyLink is required to serve a minimum of 15% of the City’s households within two (2) years of this Franchise taking effect. (CenturyLink has assured the City this number will be exceeded, greatly, but has been using that number as a standard in its Agreements with other cities) (Section 4 Article 2) • CenturyLink shall meet with the City and with the aid of build-out maps, both visually and by number, show what its build-out progress is at least four (4) times per year. (Sections 4 Article 2 and 7 Article 5) • As market-share is realized to the 27.5% point, CenturyLink commits to build-out an additional 15% within two (2) years of that point. (Section 4 Article 2) • CenturyLink will carry PEG programming in the same manner as Comcast and shall provide 50 Mbps. (Section 4 Article 7) • CenturyLink is obligated to one (1) channel for governmental programming with expansion to up to 5 (five) channels. (Section 5 Article 1) • The channels shall be broadcast in both HD and SD. (Section 5 Article 1) • Once the City programs four (4) of its channels it shall be allowed a “mosaic” or multiple-channel screen on CenturyLink’s channel array displaying an active matrix menu of available programming. (Section 5 Article 1d) • PEG support shall be equivalent to that negotiated with Comcast, currently set at $4.25 per subscriber, per month. (Section 5 Article 4a)* • CenturyLink shall provide two (2) PSA ads to be placed on unsold/unused air time. (Section 5 Article 4b) • CenturyLink shall support the City’s I-Net capability to the same extent as Comcast (Section 6) • The Franchise Fee is set at five percent (5%) of gross revenues, paid quarterly. (Section 7 Article 3a) • All obligations shall be secured by both a performance bond and a letter of credit. (Section 8 Articles 1 &2) ADDITIONS and CHANGES IN THE NEW VERSION The final version of this Ordinance is largely unchanged from the first and are largely small edits for verbiage-agreement and references to sections within the document but an additional INDEMNITY AGREEMENT has been added to the document, albeit as a stand-alone piece that is referenced in the Franchise (Section 8 Subd. 3b) * A question was raised after the first reading regarding PEG and the ‘promise’ of it being lower and why that was not the case with this new “negotiated” franchise with CenturyLink. It is referenced in this Franchise to mirror the current rate set with the Comcast Franchise. Once this Franchise is granted, it will possible to then meet with both cable operators to determine what level of PEG is appropriate and an MOU will be able to change that number. H1-A Packet Page Number 120 of 184 3 FISCAL IMPACT While this Ordinance will impact staff in that it is another agreement to manage, there are no direct budgetary expenses associated with it. RECOMMENDATION It is recommended that the City Council approve the attached final version of the Franchise Ordinance providing the authority for CenturyLink to provide competitive Cable Communication Services in the City of Maplewood. ATTACHMENT REDLINE Draft of Franchise Ordinance (reflecting changes from 1st reading) (Please refer to Public Hearing Attachment for final version of Ordinance) H1-A Packet Page Number 121 of 184 H1-A: Attachment H Alan Kantrud 2/2/16 11:46 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:42 AM Formatted: Indent: Left: 0.5" H Alan Kantrud 2/2/16 11:41 AM Deleted: J6 H Alan Kantrud 2/2/16 11:41 AM Deleted: , Attachment H Alan Kantrud 2/2/16 11:42 AM Deleted: 2 ORDINANCE AN ORDINANCE GRANTING A FRANCHISE TO QWEST BROADBAND SERVICES, INC D/B/A CENTURYLINK TO CONSTRUCT, OPERATE, AND MAINTAIN A CABLE SYSTEM; SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE SYSTEM AND THE PUBLIC RIGHTS-OF-WAY IN CONJUNCTION WITH THE CITY'S RIGHT-OF-WAY ORDINANCE, IF ANY, AND PRESCRIBING PENALTIES FOR THE VIOLATION OF THE PROVISIONS HEREIN; STATEMENT OF INTENT AND PURPOSE The City intends, by the adoption of this Franchise, to bring about the development of a competitive Cable System, and the continued operation of it. Such development can contribute significantly to the communication needs and desires of the residents and citizens of the City and the public generally. Further, the City may achieve better utilization and improvement of public services and enhanced economic development with the development and operation of a Cable System. Adoption of this Franchise is, in the judgment of the Council, in the best interests of the City and its residents. FINDINGS In the review of the application by Grantee and negotiations related thereto, and as a result of a public hearing, the City Council makes the following findings: The Grantee's technical ability, financial condition, legal qualifications, and character were considered and approved in a full public proceeding after due notice and a reasonable opportunity to be heard; Grantee's plans for constructing, and operating the System were considered and found adequate and feasible in a full public proceeding after due notice and a reasonable opportunity to be heard; The Franchise granted to Grantee by the City complies with the existing applicable Minnesota Statutes, federal laws and regulations; and The Franchise granted to Grantee is nonexclusive. SECTION 1. SHORT TITLE AND DEFINITIONS 1. Short Title. This Franchise Ordinance shall be known and cited as the CenturyLink Cable Franchise Ordinance. 1 471173v6 RJV MA151-4 Packet Page Number 122 of 184 H1-A Attachment H Alan Kantrud 2/2/16 11:46 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:43 AM Deleted: J6, H Alan Kantrud 2/2/16 11:43 AM Deleted: 2 2. Definitions. For the purposes of this Franchise, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. The word "may" is directory and discretionary and not mandatory. a. "Basic Cable Service" means any service tier which includes the lawful retransmission of local television broadcast signals and any public, educational, and governmental access programming required by the Franchise to be carried on the basic tier. Basic Cable Service as defined herein shall not be inconsistent with 47 U.S.C. §§543(b)(7). b. "City" means City of Maplewood, a municipal corporation, in the State of Minnesota, acting by and through its City Council, or its lawfully appointed designee. c. "City Council" means the governing body of the City. d. "Cable Service" or “Service” means Cable Service as defined by Minn. Stat. § 238.01 et seq. and 47 U.S.C § 521 et seq., as may be amended from time to time. e. "Cable System" or "System" means, unless the context clearly indicates otherwise, the Company’s network or facility, , consisting of antennas, copper or fiber optic cables, transmitters and receivers, amplifiers, towers, cablecasting facilities, power supplies, pedestals, and any other equipment or facilities intended for the purpose of providing Cable Service to Subscribers in the City. System as defined herein shall not be inconsistent with the definitions set forth in Minn. Stat. § 238.02, subd. 3 and 47 U.S.C § 522(7). f. "Class IV Cable Channel" means a signaling path provided by a Cable System to transmit signals of any type from a Subscriber terminal to another point in the System. g. "Drop" means the cable that connects the ground block on the Subscriber's residence or institution to the nearest feeder cable of the System. h. "FCC" means the Federal Communications Commission and any legally appointed, designated or elected agent or successor. i. "Franchise" or "Cable Franchise" means this ordinance and the regulatory and contractual relationship established hereby. j. "Grantee" is Qwest Broadband Services, Inc d/b/a CenturyLink, its lawful successors, transferees or assignees. 2 471173v6 RJV MA151-4 Packet Page Number 123 of 184 H1-A: Attachment H Alan Kantrud 2/2/16 11:46 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:42 AM Formatted: Indent: Left: 0.5" H Alan Kantrud 2/2/16 11:41 AM Deleted: J6 H Alan Kantrud 2/2/16 11:41 AM Deleted: , Attachment H Alan Kantrud 2/2/16 11:42 AM Deleted: 2 k. "Gross Revenues" means all revenue received directly or indirectly by the Grantee, its affiliates, subsidiaries, parent, or person in which Grantee has financial interest of five percent (5%) or more, from operation of its System within City to provide Cable Services including, but not limited to, all Cable Service fees, Franchise Fees, late fees, Installation and reconnection fees, upgrade and downgrade fees, set top box fees, Lockout Device fees. The term Gross Revenues shall not include advertising revenues, FCC regulatory fees, bad debt, or any taxes on services furnished by Grantee imposed by any municipality, state, or other governmental unit or refundable subscriber deposits. l. "Installation" means the connection of the System from feeder cable to the point of connection with the Subscriber Set Top Box or other terminal equipment. m. “Living Unit” means a distinct address as tracked in the QC network inventory used by Grantee to identify existing or potential Subscribers. This includes, but is not limited to, single family homes, multi-dwelling units (e.g., apartment buildings and condominiums) and business locations. n. "Lockout Device" means an optional mechanical or electrical accessory to a Subscriber's terminal which inhibits the viewing of a certain program, certain channel, or certain channels provided by way of the Cable System. o. “Mosaic Channel” means a channel which displays miniaturized media screens and related information for a particular cluster of channels with common themes. The Mosaic Channel serves as a navigation tool for subscribers, which displays the group of Access Channels on a single channel screen and also provides for easy navigation to a chosen Access Channel in the group. p. "Pay Television" means the delivery over the System of pay-per-channel or pay-per- program video signals to Subscribers for a fee or charge, in addition to the charge for other Basic Cable Services or other Cable Services. q. "Person" is any person, firm, partnership, association, corporation, company, or other legal entity. r. “QC” means Qwest Corporation d/b/a CenturyLink , an commonly-owned affiliate of Grantee. s. “Qualified Living Unit” means a Living Unit which meets the minimum technical qualifications defined by Grantee for the provision of Cable Service. 3 471173v6 RJV MA151-4 Packet Page Number 124 of 184 H1-A Attachment H Alan Kantrud 2/2/16 11:46 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:43 AM Deleted: J6, H Alan Kantrud 2/2/16 11:43 AM Deleted: 2 t. "Right-of-Way" or "Rights-of-Way" means the area on, below, or above any real property in City in which the City has an interest, and any public street, road, highway, freeway, lane, path, public way, alley, court, sidewalk, boulevard, drive, bridge, tunnel waterway, easement or right-of-way, parkway, park, skyway, or any other place, area, or real property owned by or under the control of City, or dedicated for use by City, use by the general public or use compatible with Cable System operations, including other dedicated Rights-of-Way for travel purposes and utility easements. u. “Right-of-Way Ordinance” means any ordinance of City codifying requirements regarding regulation, management and use of Rights-of-Way in City, including registration and permitting requirements. v. “Set Top Box” means an electronic device (sometimes referred to as a converter) which may serve as an interface between the System and a Subscriber’s television monitor, and which may convert signals to a frequency acceptable to such monitor , and may by an appropriate selector, permit a Subscriber to view all signals of a particular service. w. "Subscriber" means any Person who lawfully receives service via the System. In the case of multiple office buildings or multiple dwelling units, the "Subscriber" means the lessee, tenant or occupant. SECTION 2. GRANT OF AUTHORITY AND GENERAL PROVISIONS 1. Grant of Franchise. This Franchise is granted pursuant to the terms and conditions contained herein. Grantee shall comply with all provisions of its Proposal. Failure of Grantee to provide a System as described in its Proposal, or meet obligations and comply with all provisions therein, may be deemed a violation of this Franchise. 2. Grant of Nonexclusive Authority. a. The Grantee shall have the right and privilege, subject to the permitting and other lawful requirements of City ordinance, rule or procedure, to construct, erect, install, operate, upgrade, repair, replace, reconstruct, rebuild, maintain and retain in, upon, along, across, above, over and under the Rights-of-Way in City a Cable 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. 4 471173v6 RJV MA151-4 Packet Page Number 125 of 184 H1-A: Attachment H Alan Kantrud 2/2/16 11:46 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:42 AM Formatted: Indent: Left: 0.5" H Alan Kantrud 2/2/16 11:41 AM Deleted: J6 H Alan Kantrud 2/2/16 11:41 AM Deleted: , Attachment H Alan Kantrud 2/2/16 11:42 AM Deleted: 2 b. Notwithstanding the above grant to use Rights-of-Way, no Right-of-Way shall be used by Grantee if City determines that such use is inconsistent with the terms, conditions, or provisions by which such Right-of-Way was created or dedicated, or with the present use of the Right-of-Way. c. It shall be unlawful for any Person to construct, install, operate or maintain a Cable System or to offer Cable Service in the City, unless such Person shall have first obtained and shall currently hold a valid franchise. Any affiliate of the Grantee involved in the offering of Cable Service in the City, or directly involved in the ownership, management or operation of the Cable System in the City, shall also comply with all obligations of this Franchise. However, the City and Grantee acknowledge that QC will be primarily responsible for the construction and installation of facilities in the Rights-of-Way which will be utilized by Grantee to provide Cable Services. So long as QC does not provide Cable Service to Subscribers in the City, QC will not be subject to the terms and conditions contained in this Franchise. QC’s installation and maintenance of facilities in the Rights-of-Way is governed by applicable local, state and federal law. To the extent Grantee constructs and installs facilities in the Rights-of-Way, such installation will be subject to the terms and conditions contained in this Franchise. Grantee is responsible for all provisions in this Franchise related to: 1) its offering of Cable Services in the City; and 2) the operation of the Cable System regardless of what entity owns or constructs the facilities used to provide the Cable Service. The City and Grantee agree that to the extent QC violates any applicable federal, state, or local laws, rules, and regulations, the City shall first seek compliance directly from QC. In the event the City cannot resolve these violations or disputes with QC, then the City may look to Grantee to ensure such compliance. Failure by Grantee to ensure QC’s or any other affiliate’s compliance with applicable local, state and federal laws, rules, and regulations, shall be deemed a material breach of this Franchise by Grantee. d. This Franchise and the right it grants to use and occupy the Public Rights-of-Way shall not be exclusive and this Franchise does not, explicitly or implicitly, preclude the issuance of other franchises or similar authorization to operate Cable Systems within the City. Provided, however, that Grantor shall not authorize or permit another Person to construct, operate or maintain a Cable System on material terms and conditions which are, taken as a whole, more favorable or less burdensome than those applied to Grantee. In the event another Person operates a Cable System authorized by Grantor on terms and conditions that are, taken as a whole, more favorable or less burdensome than the terms and conditions applicable to Grantee under this Franchise, the Grantor shall adjust any such terms and conditions in any other provider's authorization or this Franchise so that the terms and conditions under which such other Person operates, taken as a whole, are not more favorable or less burdensome than those that are applied to Grantee. 5 471173v6 RJV MA151-4 Packet Page Number 126 of 184 H1-A Attachment H Alan Kantrud 2/2/16 11:46 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:43 AM Deleted: J6, H Alan Kantrud 2/2/16 11:43 AM Deleted: 2 3. Lease or Assignment Prohibited. No Person may lease Grantee's System for the purpose of providing Service until and unless such Person shall have first obtained and shall currently hold a valid Franchise or other lawful authorization containing substantially similar burdens and obligations to this Franchise, including, without limitation, a requirement on such Person to pay franchise fees on such Person's use of the System to provide Cable Services, to the extent those would be such a requirement under this Franchise if Grantee itself were to use the System to provide such Cable Service. Any assignment of rights under this Franchise shall be subject to and in accordance with the requirements of Section. 4. Franchise Term. The term of the Franchise granted by the City pursuant to this ordinance shall be for a period of five (5) years, provided, however, that no less than six (6) months prior to the expiration of the initial five (5) year term, to the extent the City determines, in the City’s sole discretion, that the Company has complied with this Franchise and with applicable law, the City shall have the right to extend the franchise term for an additional period so as to be co-terminus with any franchise then-held by the incumbent cable operator. 5. Compliance with Applicable Laws, Resolutions and Ordinances. a. The terms of this Franchise shall define the contractual rights and obligations of Grantee with respect to the provision of Cable Service and operation of the System in City. However, the Grantee shall at all times during the term of this Franchise be subject to all lawful exercise of the police power, local generally applicable ordinance authority, and eminent domain rights of City. Except as provided below, any modification or amendment to this Franchise, or the rights or obligations contained herein, must be within the lawful exercise of City's police power, in which case the provision(s) modified or amended herein shall be specifically referenced in an ordinance of the City authorizing such amendment or modification. This Franchise may also be modified or amended with the written consent of Grantee as provided in Section herein. b. Grantee shall comply with the terms of any City ordinance or regulation of general applicability which addresses usage of the Rights-of-Way within City which may have the effect of superseding, modifying or amending the terms of this franchise related to the construction standard with the exception of Section 4.2 herein, except that Grantee shall not, through application of such City ordinance or regulation of Rights-of-Way, be subject to additional burdens with respect to usage of Rights-of-Way which exceed burdens on similarly situated Rights-of-Way users. 6 471173v6 RJV MA151-4 Packet Page Number 127 of 184 H1-A: Attachment H Alan Kantrud 2/2/16 11:46 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:42 AM Formatted: Indent: Left: 0.5" H Alan Kantrud 2/2/16 11:41 AM Deleted: J6 H Alan Kantrud 2/2/16 11:41 AM Deleted: , Attachment H Alan Kantrud 2/2/16 11:42 AM Deleted: 2 c. In the event of any conflict between Section 4.2 of this Franchise and any lawfully applicable City ordinance or regulation which addresses usage of the Rights-of-Way, the conflicting terms in Section 4.2 of this Franchise shall be not be superseded by such City ordinance or regulation, except that Grantee shall not, through application of such City ordinance or regulation of Rights-of-Way, be subject to additional burdens with respect to usage of Rights-of-Way which exceed burdens on similarly situated Rights-of-Way users. d. In the event any lawfully applicable City ordinance or regulation which addresses usage of the Rights-of-Way adds to, modifies, amends, or otherwise differently addresses issues addressed in Section 4.2 of this Franchise, Grantee shall not be required to comply with such ordinance or regulation of general applicability, regardless of which requirement was first adopted except that Grantee shall not, through application of such City ordinance or regulation of Rights-of-Way, be subject to additional burdens with respect to usage of Rights-of-Way which exceed burdens on similarly situated Rights-of- Way users. e. In the event Grantee cannot determine how to comply with any Right-of-Way requirement of City, whether pursuant to this Franchise or other requirement, Grantee shall immediately provide written notice of such question, including Grantee's proposed interpretation, to the City. The City or Commission shall provide a written response within fourteen (14) days of receipt indicating how the requirements cited by Grantee apply. Grantee may proceed in accordance with its proposed interpretation in the event a written response is not received within seventeen (17) days of mailing or delivering such written question. 6. Rules of Grantee. The Grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable said Grantee to exercise its rights and perform its obligations under this Franchise and to assure uninterrupted service to each and all of its Subscribers; provided that such rules, regulations, terms and conditions shall not be in conflict with provisions hereto, the rules of the FCC, the laws of the State of Minnesota, City, or any other body having lawful jurisdiction. 7. Territorial Area Involved. This Franchise is granted for the corporate boundaries of City, as it exists from time to time. In the event of annexation by City, or as development occurs, any new territory shall become part of the territory for which this Franchise is granted. Access to cable service shall not be denied to any group of potential residential cable Subscribers because of the income of the residents of the area in which such group resides. 8. Line Extension. Grantee shall have a line extension obligation at such time that Grantee provides Cable Service to more than fifty percent (50%) of all subscribers receiving facilities- based Cable Service from both the Grantee and any other provider(s) of cable service within the City. At that time, the City, in its reasonable discretion and after meeting with Grantee, shall determine the timeframe to complete deployment to the remaining households in the City, including a density requirement that is the same or similar to the requirement of the incumbent franchised cable operator. 7 471173v6 RJV MA151-4 Packet Page Number 128 of 184 H1-A Attachment H Alan Kantrud 2/2/16 11:46 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:43 AM Deleted: J6, H Alan Kantrud 2/2/16 11:43 AM Deleted: 2 9. Written Notice. All notices, reports, or demands required to be given in writing under this Franchise shall be deemed to be given when delivered personally to any officer of Grantee or City's Administrator of this Franchise or forty-eight (48) hours after it is deposited in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the party to whom notice is being given, as follows: If to City: City of Maplewood Attention: City Manager 1830 County Road B East Maplewood, MN 55109-2702 If to Grantee: Qwest Broadband Services, Inc. d/b/a CenturyLink 1801 California St., 10th Flr. Denver, CO 80202 Attn: Public Policy With copies to: Qwest Broadband Services Inc., d/b/a CenturyLink, 200 S. 5th Street, 21st Flr. Minneapolis, MN 55402, Attn: Public Policy Such addresses may be changed by either party upon notice to the other party given as provided in this Section. SECTION 3. CONSTRUCTION STANDARDS 1. Registration, Permits and Construction Codes. a. Grantee shall strictly adhere to all state and local laws and building and zoning codes currently or hereafter applicable to location, construction, installation, operation or maintenance of the System in City and give due consideration at all times to the aesthetics of the property. b. Failure to obtain permits or comply with permit requirements shall be grounds for revocation of this Franchise, or any lesser sanctions provided herein or in any other applicable law. 2. Repair of Rights-of-Way and Property. Any and all Rights-of-Way, or public or private property, which are disturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance, expansion, extension or reconstruction of the System shall be promptly and fully restored by Grantee, at its expense, to the same condition as that prevailing prior to Grantee's work to the extent consistent with applicable statutes and rules. If Grantee shall fail to promptly perform the restoration required herein, after written request of City and reasonable opportunity to satisfy that request, City shall have the right to put the Rights-of-Way, public, or private property back into good condition. In the event City determines that Grantee is responsible for such disturbance or damage, Grantee shall be obligated to fully reimburse City for such restoration. 8 471173v6 RJV MA151-4 Packet Page Number 129 of 184 H1-A: Attachment H Alan Kantrud 2/2/16 11:45 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:42 AM Formatted: Indent: Left: 0.5" H Alan Kantrud 2/2/16 11:41 AM Deleted: J6 H Alan Kantrud 2/2/16 11:41 AM Deleted: , Attachment H Alan Kantrud 2/2/16 11:42 AM Deleted: 2 3. Conditions on Right-of-Way Use. a. Nothing in this Franchise shall be construed to prevent City from constructing, maintaining, repairing or relocating sewers; grading, paving, maintaining, repairing, relocating and/or altering any Right-of-Way; constructing, laying down, repairing, maintaining or relocating any water mains; or constructing, maintaining, relocating, or repairing any sidewalk or other public work. b. All System transmission and distribution structures, lines and equipment erected by the Grantee within City shall be located so as not to obstruct or interfere with the use of Rights-of-Way except for normal and reasonable obstruction and interference which might occur during construction and to cause minimum interference with the rights of property owners who abut any of said Rights-of-Way and not to interfere with existing public utility installations. c. If at any time during the period of this Franchise City shall elect to alter or change the grade or location of any Right-of-Way, the Grantee shall, at its own expense, upon reasonable notice by City, remove and relocate its poles, wires, cables, conduits, manholes and other fixtures of the System, and in each instance comply with the reasonable and lawful standards and specifications of City. The Grantee shall not place poles, conduits, or other fixtures of System above or below ground where the same will interfere with any gas, electric, telephone, water or other utility fixtures and all such poles, conduits, or other fixtures placed in any Right-of-Way shall be so placed as to comply with all reasonable and lawful requirements of City. e. The Grantee shall, upon request of any Person holding a moving permit issued by City, temporarily move its wires or fixtures to permit the moving of buildings with the expense of such temporary removal to be paid by the Person requesting the same, and the Grantee shall be given not less than ten (10) days advance written notice to arrange for such temporary changes. f. The Grantee shall have the authority to trim any trees upon and overhanging the Rights-of-Way of City so as to prevent the branches of such trees from coming in contact with the wires and cables or other facilities of the Grantee. g. Grantee shall use its best efforts to give reasonable prior notice to any adjacent private property owners who will be negatively affected or impacted by Grantee's work in the Rights-of-Way. 9 471173v6 RJV MA151-4 Packet Page Number 130 of 184 H1-A Attachment H Alan Kantrud 2/2/16 11:45 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:43 AM Deleted: J6, H Alan Kantrud 2/2/16 11:43 AM Deleted: 2 4. Undergrounding of Cable. Grantee must place newly constructed System facilities underground in areas of City where all other utility lines are placed underground and may place System facilities on poles using aerial construction techniques where existing System facilities or other utility facilities are on poles or otherwise of aerial construction. Amplifier boxes and pedestal mounted terminal boxes may be placed above ground if existing technology reasonably requires, but shall be of such size and design and shall be so located as not to be unsightly or unsafe, all pursuant to any required plans submitted with Grantee's permit application(s) and approved by City. 5. Installation of Facilities. No poles, conduits, amplifier boxes, pedestal mounted terminal boxes, similar structures, or other wire-holding structures shall be erected or installed by the Grantee without required permit of City. 6. Safety Requirements. a. The Grantee shall at all times employ ordinary and reasonable care and shall install and maintain in use nothing less than commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage or injuries. b. The Grantee shall install and maintain its System and other equipment in accordance with City's codes and the requirements of the National Electric Safety Code and all other applicable FCC, state and local regulations, and in such manner that they will not interfere with City communications technology related to health, safety and welfare of the residents. c. All System structures, and lines, equipment and connections in, over, under and upon the Rights-of-Way of City, wherever situated or located, shall at all times be kept and maintained in good condition, order, and repair so that the same shall not menace or endanger the life or property of City or any Person. SECTION 4. DESIGN PROVISIONS 1. System Design and Capacity. a. The Cable System shall have a bandwidth capable of providing the equivalent of a typical 750 MHz Cable System. Recognizing that the City has limited authority under federal law to designate the technical method by which Grantee provides Cable Service, as of the Effective Date of this Franchise, Grantee provides its Cable Service utilizing two (2) different methods. First, using a PON platform, the Grantee provides Cable Service to some Qualified Living Units by connecting fiber directly to the household ("FTTP"). Second, the Grantee provides Cable Service to some Qualified Living Units by deploying fiber into the neighborhoods and using the existing copper infrastructure to increase broadband speeds ("FTTN"). In both the FTTP and FTTN footprint, a household capable of receiving a minimum of 25 Mbps downstream will generally be capable of receiving Cable Service after Grantee performs certain network grooming and conditioning. 10 471173v6 RJV MA151-4 Packet Page Number 131 of 184 H1-A: Attachment H Alan Kantrud 2/2/16 11:45 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:42 AM Formatted: Indent: Left: 0.5" H Alan Kantrud 2/2/16 11:41 AM Deleted: J6 H Alan Kantrud 2/2/16 11:41 AM Deleted: , Attachment H Alan Kantrud 2/2/16 11:42 AM Deleted: 2 b. Grantee agrees to maintain the Cable System in a manner consistent with, or in excess of the specifications herein throughout the term of the Franchise with sufficient capability and technical quality to enable the implementation and performance of all the requirements of this Franchise, including the exhibits hereto, and in a manner which meets or exceeds applicable FCC technical quality standards at 47 C.F.R. § 76 Subpart K, regardless of the particular format in which a signal is transmitted. c. System Maintenance. In all its construction and service provision activities, Grantee shall meet or exceed the construction, technical performance, extension and service requirements set forth in this Franchise. d. Emergency Alert Capability. At all times during the term of this Franchise, Grantee shall provide and maintain an Emergency Alert System (EAS) consistent with applicable federal law and regulations including 47 C.F.R., Part 11, and any Minnesota State Emergency Alert System requirements. The City may identify authorized emergency officials for activating the EAS consistent with the Minnesota State Emergency Statewide Plan (“EAS Plan”). The City may also develop a local plan containing methods of EAS message distribution, subject to Applicable Laws and the EAS Plan. Nothing in this section is intended to expand Grantee’s obligations beyond that which is required by the EAS Plan and Applicable Law. e. Standby Power. Grantee shall provide standby power generating capacity at the Cable System control center and at all nodes (“Node” means the transition point between optical light transmission and RF transmission of signals being delivered to and received from the Subscriber’s premises). Grantee shall maintain standby power system supplies, rated at least at two (2) hours’ duration, throughout the trunk and distribution networks. In addition, Grantee shall have in place throughout the Franchise term a plan, and all resources necessary for implementation of the plan, for dealing with outages of more than two (2) hours. f. Grantee shall comply with the applicable technical standards promulgated by the FCC relating to Cable Systems pursuant to Title 47, Section 76, Subpart K of the Code of Federal Regulations, as may be amended or modified from time to time. g. Grantee shall install and maintain its Cable System in accordance with the applicable requirements of the National Electrical Safety Code, and in such manner that the Cable System shall not interfere with any installations of the City or any public utility or institutional utility, or any franchisee, licensee or permittee of the City. h. Grantee shall provide and put in use such equipment and appliances as in a manner so as to prevent injury to the wires, pipes, structures, and property belonging to the City or to any Person within the City. 11 471173v6 RJV MA151-4 Packet Page Number 132 of 184 H1-A Attachment H Alan Kantrud 2/2/16 11:45 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:43 AM Deleted: J6, H Alan Kantrud 2/2/16 11:43 AM Deleted: 2 2. Cable Service Availability. Initial Build Out. No later than the second anniversary of the Effective Date of this Franchise, Grantee shall: 1) be capable of serving a minimum of fifteen percent (15%) of the City’s households with Cable Service; provided, however, Grantee will make its best efforts to complete such deployment within a shorter period of time, and; 2) make available and offer Cable Service to all Qualified Living Units, as indentified in the reports and maps required herein showing the total number of Qualified Living Units as of the Effective Date and quarterly thereafter. Grantee shall not deactivate any activated Remote Terminals once activated, nor withdraw the availability of Cable Service to any Qualified Living Unit (except due to non- payment or other customer compliance matter), without the prior approval of the City. In addition, Grantee commits that a significant portion of its investment will be targeted to areas below the median income in the City. Quarterly Meetings. In order to permit the City to monitor and enforce this Franchise, the Grantee shall, upon demand, promptly make available to the City maps and other documentation showing exactly where within the City the Grantee is currently providing, or able to provide, Cable Service. Grantee shall meet with the City, not less than once quarterly, to demonstrate Grantee’s compliance with the provisions of this section concerning the deployment of Cable Services in the City. In order to permit the City to monitor and enforce the provisions of this section and other provisions of this Franchise, the Grantee shall, commencing on or about April 15, 2016, and continuing throughout the term of this Franchise, meet quarterly with the City and make available reports and maps showing the City the following information: (a) The total number of Living Units throughout the City; (b) The total number of Qualified Living Units as of the Effective Date and each subsequent calendar quarter; (c) Information demonstrating Grantee commitment that a significant portion of Grantee’s initial investment and Grantee’s deployment of Cable Services in the City has been targeted to households below the City’s median household income; and (d) A list of the public buildings and educational institutions that are Qualified Living Units in the City In addition, at each quarterly meeting the Grantee will provide to the City a written summary (on a trade secret basis if Grantee so desires) of the foregoing information. Additional Build-Out Based on Market Success. If, at any quarterly meeting, including any quarterly meeting prior to the second anniversary of the Effective Date of this Franchise as referenced in Section 13 herein, Grantee is actually providing Cable Service to twenty seven and one-half percent (27.5%) of the Qualified Living Units (households capable of receiving Cable Service), then Grantee agrees the minimum build-out commitment shall increase to include an additional fifteen (15%) of the total households in the City within two (2) years from the quarterly meeting; provided, however, the Grantee shall make its best efforts to complete such deployment within a shorter period of time. 12 471173v6 RJV MA151-4 Packet Page Number 133 of 184 H1-A: Attachment H Alan Kantrud 2/2/16 11:45 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:42 AM Formatted: Indent: Left: 0.5" H Alan Kantrud 2/2/16 11:41 AM Deleted: J6 H Alan Kantrud 2/2/16 11:41 AM Deleted: , Attachment H Alan Kantrud 2/2/16 11:42 AM Deleted: 2 For example, if, at a quarterly meeting with the City, Grantee shows that it is capable of serving sixty percent (60%) of the households in the City with Cable Service and is actually serving thirty percent (30%) of those households with Cable Service, then Grantee will agree to serve an additional fifteen percent (15%) of the total households in the City no later than two (2) years after that quarterly meeting (a total of seventy-five percent (75%) of the total households). This additional build-out based on market success shall continue until every household in the City is served. 3. Interruption of Service. The Grantee shall interrupt Service only for good cause and for the shortest time possible. Such interruption shall occur during periods of minimum use of the System. If Service is interrupted for a total period of more than forty eight (48) hours in any thirty (30) day period, Subscribers shall, upon request, be credited pro rata for such interruption. 4. FCC Reports. The results of any tests required to be filed by Grantee with the FCC, as it relates to Cable Service pursuant to this Franchise, shall upon request of City also be filed with the City or its designee within ten (10) days of the conduct of such tests. 5. Nonvoice Return Capability. Grantee is required to use cable and associated electronics having the technical capacity for nonvoice return communications. 6. Lockout Device. Upon the request of a Subscriber, Grantee shall make available a Lockout Device at no additional charge to Subscribers. 7. System Design. a. The System shall have the capability to carry community (PEG) programming originated from other Minneapolis/St. Paul metropolitan area franchising authorities. b. Grantee shall provide a discrete, non-public, video interconnect network, from an agreed upon demarcation point at the City’s Master Control Center to Grantee's headend. The video interconnect network shall not exceed 50 Mbps of allocated bandwidth, allowing the City and PEG operators that have agreed with Grantee to share (send and receive) live and recorded programming for playback on their respective systems. c. Where available the Grantee shall provide the video interconnect network and the network equipment necessary for the high-priority transport of live multicast HD/SD video streams as well as lower-priority file-sharing. Grantee shall provide 50 Mbps bandwidth for each participating PEG entity to send its original programming, receive at least two additional multicast HD/SD streams from any other participating PEG entity, and allow the transfer of files. Each participating PEG entity is responsible for encoding its own SD/HD content in suitable bit rates to be transported by the video interconnect network without exceeding the 50 Mbps of allocated bandwidth. 13 471173v6 RJV MA151-4 Packet Page Number 134 of 184 H1-A Attachment H Alan Kantrud 2/2/16 11:45 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:43 AM Deleted: J6, H Alan Kantrud 2/2/16 11:43 AM Deleted: 2 8. System Performance.. a. Grantee shall interrupt Service only for good cause and for the shortest time possible. Such interruption shall occur during periods of minimum use of the System. If Service is interrupted for a total period of more than forty eight (48) hours in any thirty (30) day period, Subscribers shall, upon request, be credited pro rata for such interruption. b. Special Testing. The City shall have the right to inspect all construction or installation work performed pursuant to the provisions of the Franchise. In addition, the City may require special testing of a location or locations within the System if there is a particular matter of controversy or unresolved complaints regarding such construction or installation work or pertaining to such location(s). Demand for such special tests may be made on the basis of complaints received or other evidence indicating an unresolved controversy or noncompliance. Such tests shall be limited to the particular matter in controversy or unresolved complaints. The City shall endeavor to so arrange its request for such special testing so as to minimize hardship or inconvenience to Grantee or to the Subscribers caused by such testing. c. Before ordering such tests, Grantee shall be afforded thirty (30) days following receipt of written notice to investigate and, if necessary, correct problems or complaints upon which tests were ordered. The City shall meet with Grantee prior to requiring special tests to discuss the need for such and, if possible, visually inspect those locations which are the focus of concern. If, after such meetings and inspections, City wishes to commence special tests and the thirty (30) days have elapsed without correction of the matter in controversy or unresolved complaints, the tests shall be conducted at Grantee's expense by a qualified engineer selected by City and Grantee, and Grantee shall cooperate in such testing. d. FCC Reports. The results of any tests related to the City required to be filed by Grantee with the FCC shall upon request of City also be filed with the City or its designee within ten (10) days of the conduct of such tests. e. Nonvoice Return Capability. Grantee is required to use cable and associated electronics having the technical capacity for nonvoice return communications. SECTION 5. ACCESS CHANNEL(S) PROVISIONS 1. Public, Educational and Government Access. a. Within 120 days of Effective Date, the Grantee shall make available one (1) channel on the Basic Service Tier to be used for Government access programming. On a future date to be mutually agreed upon by the Grantee and the City, , the Grantee shall make available up to four (4) additional channels to be used for PEG access programming on the Basic Service Tier. This obligation on Grantee shall terminate 365 days after the Effective Date. These channels will be located at Channels 8056-8060 (“Access Channels”). 14 471173v6 RJV MA151-4 Packet Page Number 135 of 184 H1-A: Attachment H Alan Kantrud 2/2/16 11:45 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:42 AM Formatted: Indent: Left: 0.5" H Alan Kantrud 2/2/16 11:41 AM Deleted: J6 H Alan Kantrud 2/2/16 11:41 AM Deleted: , Attachment H Alan Kantrud 2/2/16 11:42 AM Deleted: 2 If the City delivers programming to Grantee in HD, then Grantee shall make the Access Channel(s) carrying such programming available to Subscribers in both HD and SD. Thus, if City delivers all PEG access programming in HD, the Grantee will provide the equivalent of ten (10) Access Channels for such programming (5 HD; 5 SD). The City has the sole discretion to designate the use of each Access Channel for public, educational, or governmental purposes. b. Grantee shall provide a technically reliable path for upstream and downstream transmission of the Access Channels, which will in no way degrade the technical quality of the Access Channels, from an agreed upon demarcation point at the City’s Master Control Center and from any other PEG access programming locations designated by the City, to Grantee’s headend, on which all Access Channels shall be transported for distribution on Grantee’s subscriber network. The Access Channels shall be delivered without degradation to Subscribers. Grantee may meet the obligations of this subsection by providing, free of charge and at no cost to the City, a direct fiber connection and necessary equipment to transmit PEG programming from the City’s designated programming locations and the permanent location of the City’s Master Control Center to the Grantee’s headend (“PEG Origination Connection”). As necessary, the Grantee shall undertake construction of direct connections and necessary equipment to each of the programming origination sites as identified by the City within a reasonable period of time taking into consideration weather and related technical issues. c. The City will give Grantee written notice detailing the point of origination and the capability sought by the City. The Access Channels may be renumbered and moved by the Grantee upon thirty (30) days’ notice to Subscribers and the City; provided, that in such event the City is programming the channel(s) Grantee shall pay all reasonable costs or expenses arising out of the renumbering and moving of any of the above-listed channels including, but not limited to, equipment necessary to effect the change at the programmer's production or receiving facility (school frequency routing equipment, etc.) This paragraph shall not apply to Regional Channel 6. d. At such time the City is programming four (4) or more of the Access Channels such channels may be made available through a multi-channel display (i.e. a picture in picture feed) on a single TV screen called a “mosaic” where a Subscriber can access via an interactive video menu any of the PEG access channels (the “Maplewood Mosaic”). The Maplewood Mosaic will be located at a Channel mutually agreed to by the Grantee and City in the area of the channel lineup where similar PEG mosaics are located. The Maplewood Mosaic will contain only Access Channels authorized by the City. 15 471173v6 RJV MA151-4 Packet Page Number 136 of 184 H1-A Attachment H Alan Kantrud 2/2/16 11:45 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:43 AM Deleted: J6, H Alan Kantrud 2/2/16 11:43 AM Deleted: 2 e. Video on Demand. Grantee shall provide Video on Demand service (“VOD”) for PEG access programming. The VOD service to be provided herein shall be limited to up to twenty (20) hours per month. The City will be solely responsible for determining programming priority and will be responsible for providing Grantee 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. 2. Charges for Use. Channel time and playback of prerecorded programming on the PEG access and community program channel(s) must be provided without charge to City and the public. 3. Access Rules. City, or its designee, shall implement rules for use of any access channel(s). 4. Access Support. a. Grantee will collect from Subscribers and remit to the City a monthly PEG Fee of $4.25 per subscriber, per month. The PEG Fee will be remitted to the City on a quarterly basis. The PEG Fee will be paid to the City at the same time as the Franchise Fee. Starting with the 2016 calendar year, the City may elect to increase, or decrease this fee based on the incumbent cable franchisee’s PEG support obligation, or the Consumer Price Index. Any such election must be made in writing to the Franchisee ninety (90) days prior to becoming effective. In no event shall the monthly per Subscriber fee be in an amount different from the incumbent cable provider. The PEG Fee may be used for operational or capital support of PEG programming. In the event the incumbent’s per Subscriber, per month collection and payment to the City is modified for any reason, including, for example, due to renewal of the incumbent’s franchise on different terms or the incumbent’s re-calculation of the amount due under its then-existing franchise, the parties agree to work cooperatively, in good faith, to modify the Grantee’s PEG support payment obligation accordingly. As deemed necessary or appropriate, the parties may agree to amend this Franchise for such purpose. b. Grantee shall provide the City two (2) 30-second ad avails during periods in which ample unsold/unused air time on such channels exists for City public service announcements (PSAs), free of charge, during the term of the Franchise, on a run of schedule basis. The ad avails shall be produced by the City to announce, identify, or promote community television. Grantee shall also print and mail a post card promoting community programming, to households in the City subscribing to Grantee’s Cable Service at no cost to the City, no less frequently than twice per year, or at such time as a Access Channel is moved or relocated, upon the written request of the City. The post card shall be designed by the City and shall conform to the Grantee's standards and policies for size and weight. Any post card denigrating the Grantee, its service or its programming is not permitted. 16 471173v6 RJV MA151-4 Packet Page Number 137 of 184 H1-A: Attachment H Alan Kantrud 2/2/16 11:45 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:42 AM Formatted: Indent: Left: 0.5" H Alan Kantrud 2/2/16 11:41 AM Deleted: J6 H Alan Kantrud 2/2/16 11:41 AM Deleted: , Attachment H Alan Kantrud 2/2/16 11:42 AM Deleted: 2 5. Regional Channel 6. Grantee shall designate standard VHF Channel 6 for uniform regional channel usage to the extent required by state law. 6. State and Federal Law Compliance. Satisfaction of the requirements of this Section satisfies any and all of Grantee's state and federal law requirements of Grantee with respect to PEG access. SECTION 6. INSTITUTIONAL NETWORK (I-NET) PROVISIONS AND RELATED COMMITMENTS 1. Grantee acknowledges that the City has acquired I-Net capacity, facilities, interconnection, services and resources from existing franchised cable service providers to design, construct and operate an Institutional Network and to facilitate PEG Institutions’ uses of the I-Net. Grantee shall provide additional connectivity for PEG access programming purposes as provided in Section 5.1(b) and (c) above. The parties acknowledge that the public interest would not be served by duplicating existing I-Net facilities or services provided under other cable services franchises. 2. Subscriber Network Drops to Designated Buildings. a. Grantee shall provide, free of charge, Installation of one (1) subscriber network Drop, one (1) cable outlet, one (1) set top box or other device, if necessary, monthly Basic Cable Service to each public and private school, public library branch, police and fire station, community center and public building that requests a drop in writing, and to such other public institutions as the City may reasonably request from time to time provided such location is a Qualified Living Unit and not currently receiving service from another provider. b. The above referenced institutions may add outlets at its own expense, as long as such Installation meets Grantee's standards. SECTION 7. OPERATION AND ADMINISTRATION PROVISIONS 1. Administration of Franchise. The City Manager or other designee shall have continuing regulatory jurisdiction and supervision over the System and the Grantee's operation under the Franchise. The City, or its designee, may issue such reasonable rules and regulations concerning the construction, operation and maintenance of the System as are consistent with the provisions of the Franchise and law. The City may not unilaterally alter the material provisions of this Franchise. 2. Delegated Authority. The City may appoint a citizen advisory body or a Joint Powers Commission, or may delegate to any other body or Person authority to administer the Franchise and to monitor the performance of the Grantee pursuant to the Franchise. Grantee shall cooperate with any such delegatee of City. 17 471173v6 RJV MA151-4 Packet Page Number 138 of 184 H1-A Attachment H Alan Kantrud 2/2/16 11:45 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:43 AM Deleted: J6, H Alan Kantrud 2/2/16 11:43 AM Deleted: 2 3. Franchise Fee. a. During the term of the Franchise, Grantee shall pay quarterly to City, or properly appointed delegatee, a Franchise Fee in an amount equal to five percent (5%) of its quarterly Gross Revenues, or such other amounts as are subsequently permitted by federal statute. b. Any payments due under this provision shall be payable quarterly. The payment shall be made within thirty (30) days of the end of each of Grantee's fiscal quarters together with a report showing the basis for the computation. c. All amounts paid shall be subject to audit and recomputation by City and acceptance of any payment shall not be construed as an accord that the amount paid is in fact the correct amount. 4. Access to Records. The City shall have the right to inspect, upon reasonable notice and during normal business hours, or require Grantee to provide within a reasonable time copies of any records maintained by Grantee which relate to System operations including specifically Grantee's accounting and financial records. 5. Reports and Maps. a. Grantee shall file with the City, at the time of payment of the Franchise Fee, a report of all Gross Revenues in form and substance as required by City. b. Grantee shall prepare and furnish to City, at the times and in the form prescribed, such other reasonable reports with respect to Grantee's operations pursuant to this Franchise as City may require. City shall make its best effort to protect proprietary or trade secret information all consistent with state and federal law. c. If required by the Right-of-Way Ordinance, Grantee or its affiliate, as applicable, shall make available to the City Manager the maps, plats, and permanent records of the location and character of all facilities constructed, including underground facilities, and Grantee or its affiliate, as applicable, shall make available to the City updates of such maps, plats and permanent records annually if changes have been made in the System. 6. Periodic Evaluation. a. The City may require evaluation sessions one time during the term of this Franchise, upon fifteen (30) days written notice to Grantee. 18 471173v6 RJV MA151-4 Packet Page Number 139 of 184 H1-A: Attachment H Alan Kantrud 2/2/16 11:45 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:42 AM Formatted: Indent: Left: 0.5" H Alan Kantrud 2/2/16 11:41 AM Deleted: J6 H Alan Kantrud 2/2/16 11:41 AM Deleted: , Attachment H Alan Kantrud 2/2/16 11:42 AM Deleted: 2 b. Topics which may be discussed at any evaluation session may include, but are not limited to, application of new technologies, System performance, programming offered, access channels, facilities and support, municipal uses of cable, subscriber rates, customer complaints, amendments to this Franchise, judicial rulings, FCC rulings, line extension policies and any other topics City deems relevant. c. As a result of a periodic review or evaluation session, upon notification from City, Grantee shall meet with City and undertake good faith efforts to reach agreement on changes and modifications to the terms and conditions of the Franchise which are legally, economically and technically feasible. SECTION 8. GENERAL FINANCIAL AND INSURANCE PROVISIONS 1. Performance Bond. a. Within 30 days after the effective date and at all times thereafter, until the Grantee has liquidated all of its obligations with City, the Grantee shall furnish a bond to the City in the amount of $100,000.00 in a form and with such sureties as reasonably acceptable to City. This bond will be conditioned upon the faithful performance by the Grantee of its Franchise obligations and upon the further condition that in the event the Grantee shall fail to comply with any law, ordinance or regulation governing the Franchise, there shall be recoverable jointly and severally from the principal and surety of the bond any damages or loss suffered by City as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the Grantee, plus a reasonable allowance for attorneys' fees and costs, up to the full amount of the bond, and further guaranteeing payment by the Grantee of claims, liens and taxes due City which arise by reason of the construction, operation, or maintenance of the System. The rights reserved by City with respect to the bond are in addition to all other rights City may have under the Franchise or any other law. City may, from year to year, in its sole discretion, reduce the amount of the bond. b. The time for Grantee to correct any violation or liability, shall be extended by City if the necessary action to correct such violation or liability is, in the sole determination of City, of such a nature or character as to require more than thirty (30) days within which to perform, provided Grantee provides written notice that it requires more than thirty (30) days to correct such violations or liability, commences the corrective action within the thirty (30) days period and thereafter uses reasonable diligence to correct the violation or liability. c. In the event this Franchise is revoked by reason of default of Grantee, City shall be entitled to collect from the performance bond that amount which is attributable to any damages sustained by City as a result of said default or revocation. 19 471173v6 RJV MA151-4 Packet Page Number 140 of 184 H1-A Attachment H Alan Kantrud 2/2/16 11:44 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:43 AM Deleted: J6, H Alan Kantrud 2/2/16 11:43 AM Deleted: 2 d. Grantee shall be entitled to the return of the performance bond, or portion thereof, as remains sixty (60) days after the expiration of the term of the Franchise or revocation for default thereof, provided City has not notified Grantee of any actual or potential damages incurred as a result of Grantee's operations pursuant to the Franchise or as a result of said default. e. The rights reserved to City with respect to the performance bond are in addition to all other rights of City whether reserved by this Franchise or authorized by law, and no action, proceeding or exercise of a right with respect to the performance bond shall affect any other right City may have. 2. Letter of Credit. a. At the time of acceptance of this Franchise, Grantee shall deliver to City an irrevocable and unconditional Letter of Credit, in form and substance acceptable to City, from a National or State bank approved by Commission, in the amount of $25,000.00. b. The Letter of Credit shall provide that funds will be paid to City, as appropriate, upon written demand of City, and in an amount solely determined by City in payment for penalties charged pursuant to this Section, in payment for any monies owed by Grantee to City or any person pursuant to its obligations under this Franchise, or in payment for any damage incurred by City or any person as a result of any acts or omissions by Grantee pursuant to this Franchise. c. In addition to recovery of any monies owed by Grantee to City or any person or damages to City or any person as a result of any acts or omissions by Grantee pursuant to the Franchise, City, in its sole discretion after notification to Grantee and a minimum allowance of thirty (30) days to cure, may charge to and collect from the Letter of Credit the following penalties: i. For failure to provide data, documents, reports or information or to cooperate with City during an application process or system review or as otherwise provided herein, the penalty shall be $250.00 per day for each day, or part thereof, such failure occurs or continues. ii. Fifteen (15) days following notice from City of a failure of Grantee to comply with construction, operation or maintenance standards, the penalty shall be $500.00 per day for each day, or part thereof, such failure occurs or continues. iii . For failure to provide the services Grantee has proposed, including, but not limited to, the implementation and the utilization of the access channels and the maintenance and/or replacement of the equipment and other facilities, the penalty shall be $500.00 per day for each day, or part thereof, such failure occurs or continues. 20 471173v6 RJV MA151-4 Packet Page Number 141 of 184 H1-A: Attachment H Alan Kantrud 2/2/16 11:44 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:42 AM Formatted: Indent: Left: 0.5" H Alan Kantrud 2/2/16 11:41 AM Deleted: J6 H Alan Kantrud 2/2/16 11:41 AM Deleted: , Attachment H Alan Kantrud 2/2/16 11:42 AM Deleted: 2 iv. For failure to comply with any of the provisions of this Franchise, or other applicable City ordinance for which a penalty is not otherwise specifically provided pursuant to this paragraph c, the penalty shall be $250.00 per day for each day, or part thereof, such failure occurs or continues up to a maximum of 30 days. d. Each violation of any provision of this Franchise shall be considered a separate violation for which a separate penalty can be imposed; provided, however, that no more than one penalty amount shall be imposed for each separate violation. e. Whenever City or Commission finds that Grantee has violated one or more terms, conditions or provisions of this Franchise, or for any other violation contemplated in Subparagraph c. above, a written notice shall be given to Grantee informing it of such violation. At any time after thirty (30) days (or such longer reasonable time which, in the determination of City or Commission, is necessary to cure the alleged violation) following local receipt of notice, provided Grantee remains in violation of one or more terms, conditions or provisions of this Franchise, in the sole opinion of City, City may draw from the Letter of Credit all penalties and other monies due City or Commission from the date of the local receipt of notice. f. Whenever the Letter of Credit is drawn upon, Grantee may, within seven (7) days of such draw, notify City, in writing that there is a dispute as to whether a violation or failure has in fact occurred. Such written notice by Grantee to City shall specify with particularity the matters disputed by Grantee. All penalties shall continue to accrue and City may continue to draw from the Letter of Credit during any appeal pursuant to this subparagraph f. i. City shall hear Grantee's dispute within sixty (60) days and render a final decision within sixty (60) days thereafter. ii. Upon the determination of City that no violation has taken place, City shall refund to Grantee, without interest, all monies drawn from the Letter of Credit by reason of the alleged violation. g. If said Letter of Credit or any subsequent Letter of Credit delivered pursuant thereto expires prior to thirty (30) months after the expiration of the term of this Franchise, it shall be renewed or replaced during the term of this Franchise to provide that it will not expire earlier than thirty (30) months after the expiration of this Franchise. The renewed or replaced Letter of Credit shall be of the same form and with a bank authorized herein and for the full amount stated in Paragraph A of this Section. 21 471173v6 RJV MA151-4 Packet Page Number 142 of 184 H1-A Attachment H Alan Kantrud 2/2/16 11:44 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:43 AM Deleted: J6, H Alan Kantrud 2/2/16 11:43 AM Deleted: 2 h. If City draws upon the Letter of Credit or any subsequent Letter of Credit delivered pursuant hereto, in whole or in part, Grantee shall replace or replenish to its full amount the same within ten (10) days and shall deliver to City a like replacement Letter of Credit or certification of replenishment for the full amount stated in Section 8 herein as a substitution of the previous Letter of Credit. This shall be a continuing obligation for any draws upon the Letter of Credit. i. If any Letter of Credit is not so replaced or replenished, City may draw on said Letter of Credit for the whole amount thereof and use the proceeds as City determines in its sole discretion. The failure to replace or replenish any Letter of Credit may also, at the option of the City, be deemed a default by Grantee under this Franchise. The drawing on the Letter of Credit by City, and use of the money so obtained for payment or performance of the obligations, duties and responsibilities of Grantee which are in default, shall not be a waiver or release of such default. j. The collection by City, of any damages, monies or penalties from the Letter of Credit shall not affect any other right or remedy available to either, nor shall any act, or failure to act, by City , pursuant to the Letter of Credit, be deemed a waiver of any right of City , pursuant to this Franchise or otherwise. 3. Indemnification of City. a. City, its officers, boards, committees, commissions, elected officials, employees and agents shall not be liable for any loss or damage to any real or personal property of any Person, or for any injury to or death of any Person, to the extent caused by Grantee's construction, operation, maintenance, repair or removal of the System or by any other action of Grantee with respect to this Franchise. b. Grantee shall contemporaneously with this Franchise execute an Indemnity Agreement in the form attached hereto which shall indemnify, defend and hold the City harmless for any claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and reasonable attorneys’ fees or reasonable expenses arising out of the actions of the City in granting this Franchise. This obligation includes any claims by another franchised cable operator against the City that the terms and conditions of this Franchise are less burdensome than another franchise granted by the city or that this Franchise does not satisfy the requirements of applicable state law(s). Grantee shall additionally indemnify, defend, and hold harmless City, its officers, boards, committees, commissions, elected officials, employees and agents, from and against all liability, damages, and penalties which they may legally be required to pay as a result of the City’s exercise, administration, or enforcement of the Franchise. On or before the Effective Date, Grantee shall execute a separate indemnity agreement in a form acceptable to the City, which shall indemnify, defend and hold the City harmless for any claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and reasonable attorneys’ fees or reasonable expenses arising out of the actions of the City in granting this Franchise. 22 471173v6 RJV MA151-4 Packet Page Number 143 of 184 H1-A: Attachment H Alan Kantrud 2/2/16 11:44 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:42 AM Formatted: Indent: Left: 0.5" H Alan Kantrud 2/2/16 11:41 AM Deleted: J6 H Alan Kantrud 2/2/16 11:41 AM Deleted: , Attachment H Alan Kantrud 2/2/16 11:42 AM Deleted: 2 This obligation includes any claims by the incumbent cable operator against the City that the terms and conditions of this Franchise are less burdensome than the incumbent’s franchise, or that this Franchise does not satisfy the requirements of applicable state law(s). c. Nothing in this Franchise relieves a Person, from liability arising out of the failure to exercise reasonable care to avoid injuring the Grantee's facilities while performing work connected with grading, regarding, or changing the line of a Right-of-Way or public place or with the construction or reconstruction of a sewer or water system. d. The Grantee shall not be required to indemnify the City for negligence or misconduct on the part of the City or its officers, boards, committees, commissions, elected or appointed officials, employees, volunteers or agents, including any loss or claims. 4. Insurance. a. As a part of the indemnification provided in Section, but without limiting the foregoing, Grantee shall file with City at the time of its acceptance of this Franchise, and at all times thereafter maintain in full force and effect at its sole expense, a comprehensive general liability insurance policy, including broadcaster's/cablecaster's liability and contractual liability coverage, in protection of the Grantee, and the City, its officers, elected officials, boards, commissions, agents and employees for any and all damages and penalties which may arise as a result of this Franchise. The policy or policies shall name the City as an additional insured, and in their capacity as such, City officers, elected officials, boards, commissions, agents and employees. b. The policies of insurance shall be in the sum of not less than $1,000,000.00 for personal injury or death of any one Person, and $2,000,000.00 for personal injury or death of two or more Persons in any one occurrence, $500,000.00 for property damage to any one person and $2,000,000.00 for property damage resulting from any one act or occurrence. c. The policy or policies of insurance shall be maintained by Grantee in full force and effect during the entire term of the Franchise. Each policy of insurance shall contain a statement on its face that the insurer will not cancel the policy or fail to renew the policy, whether for nonpayment of premium, or otherwise, and whether at the request of Grantee or for other reasons, except after sixty (60) days advance written notice have been provided to City. 23 471173v6 RJV MA151-4 Packet Page Number 144 of 184 H1-A Attachment H Alan Kantrud 2/2/16 11:44 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:43 AM Deleted: J6, H Alan Kantrud 2/2/16 11:43 AM Deleted: 2 SECTION 9. SALE, ABANDONMENT, TRANSFER AND REVOCATION OF FRANCHISE 1. City's Right to Revoke. a. In addition to all other rights which City has pursuant to law or equity, City reserves the right to commence proceedings to revoke, terminate or cancel this Franchise, and all rights and privileges pertaining thereto, if it is determined by City that: i. Grantee has violated material provisions(s) of this Franchise; or ii. Grantee has attempted to evade any of the provisions of the Franchise; or iii. Grantee has practiced fraud or deceit upon City. City may revoke this Franchise without the hearing required by herein if Grantee is adjudged a bankrupt. 2. Procedures for Revocation. a. City shall provide Grantee with written notice of a cause for revocation and the intent to revoke and shall allow Grantee thirty (30) days subsequent to receipt of the notice in which to correct the violation or to provide adequate assurance of performance in compliance with the Franchise. In the notice required herein, City shall provide Grantee with the basis of the revocation. b. Grantee shall be provided the right to a public hearing affording due process before the City Council prior to the effective date of revocation, which public hearing shall follow the thirty (30) day notice provided in subparagraph (a) above. City shall provide Grantee with written notice of its decision together with written findings of fact supplementing said decision. c. Only after the public hearing and upon written notice of the determination by City to revoke the Franchise may Grantee appeal said decision with an appropriate state or federal court or agency. d. During the appeal period, the Franchise shall remain in full force and effect unless the term thereof sooner expires or unless continuation of the Franchise would endanger the health, safety and welfare of any person or the public. 3. Abandonment of Service. Grantee may not abandon the System or any portion thereof, used exclusively for the provision of cable service, without having first given three (3) months written notice to City. Grantee may not abandon the System or any portion thereof, used exclusively for the provision of cable service, without compensating City for damages resulting from the abandonment, including all costs incident to removal of the System. 24 471173v6 RJV MA151-4 Packet Page Number 145 of 184 H1-A: Attachment H Alan Kantrud 2/2/16 11:44 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:42 AM Formatted: Indent: Left: 0.5" H Alan Kantrud 2/2/16 11:41 AM Deleted: J6 H Alan Kantrud 2/2/16 11:41 AM Deleted: , Attachment H Alan Kantrud 2/2/16 11:42 AM Deleted: 2 4. Removal After Abandonment, Termination or Forfeiture. a. In the event of termination or forfeiture of the Franchise or abandonment of the System, City shall have the right to require Grantee to remove all or any portion of the System used exclusively for the provision of cable service from all Rights-of-Way and public property within City. b. If Grantee 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 Grantee has failed to complete such removal within twelve (12) months after written notice of City's demand for removal is given, City shall have the right to apply funds secured by the Letter of Credit and Performance Bond toward removal and/or declare all right, title, and interest to the System to be in City with all rights of ownership including, but not limited to, the right to operate the System or transfer the System to another for operation by it. 5. Sale or Transfer of Franchise. a. No sale or transfer of the Franchise, or sale, transfer, or fundamental corporate change of or in Grantee, including, but not limited to, a fundamental corporate change in Grantee's parent corporation or any entity having a controlling interest in Grantee, the sale of a controlling interest in the Grantee's assets, a merger including the merger of a subsidiary and parent entity, consolidation, or the creation of a subsidiary or affiliate entity, shall take place until a written request has been filed with City requesting approval of the sale, transfer, or corporate change and such approval has been granted or deemed granted, provided, however, that said approval shall not be required where Grantee grants a security interest in its Franchise and/or assets to secure an indebtedness. Upon notice to City, Grantee may undertake legal changes necessary to consolidate the corporate or partnership structures with its affiliates provided there is no change in the controlling interests which could materially alter the financial responsibilities for the Grantee. b. Any sale, transfer, exchange or assignment of stock in Grantee, or Grantee's parent corporation or any other entity having a controlling interest in Grantee, so as to create a new controlling interest therein, shall be subject to the requirements of this Section. The term controlling interest as used herein is not limited to majority stock ownership, but includes actual working control in whatever manner exercised. c. The Grantee shall file, in addition to all documents, forms and information required to be filed by applicable law, the following: i. All contracts, agreements or other documents that constitute the proposed transaction and all exhibits, attachments, or other documents referred to therein which are necessary in order to understand the terms thereof. 25 471173v6 RJV MA151-4 Packet Page Number 146 of 184 H1-A Attachment H Alan Kantrud 2/2/16 11:44 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:43 AM Deleted: J6, H Alan Kantrud 2/2/16 11:43 AM Deleted: 2 ii. A list detailing all documents filed with any state or federal agency related to the transaction including, but not limited to, the MPUC, the FCC, the FTC, the FEC, the SEC or MnDOT. Upon request, Grantee shall provide City with a complete copy of any such document; and iii. Any other documents or information related to the transaction as may be specifically requested by the City. d. City shall have such time as is permitted by federal law in which to review a transfer request. e. The Grantee shall reimburse City for all the reasonable legal, administrative, and consulting costs and fees associated with the City's review of any request to transfer. Nothing herein shall prevent Grantee from negotiating partial or complete payment of such costs and fees by the transferee. Grantee may not itemize any such reimbursement on Subscriber bills, but may recover such expenses in its subscriber rates. f. In no event shall a sale, transfer, corporate change, or assignment of ownership or control pursuant to subparagraph (a) or (b) of this Section be approved without the transferee becoming a signatory to this Franchise and assuming all rights and obligations thereunder, and assuming all other rights and obligations of the transferor to the City including, but not limited to, any adequate guarantees or other security instruments provided by the transferor. g. In the event of any proposed sale, transfer, corporate change, or assignment pursuant to subparagraph (a) or (b) of this Section, City shall have the right to purchase the System for the value of the consideration proposed in such transaction. City's right to purchase shall arise upon City's receipt of notice of the material terms of an offer or proposal for sale, transfer, corporate change, or assignment, which Grantee has accepted. Notice of such offer or proposal must be conveyed to City in writing and separate from any general announcement of the transaction. h. City shall be deemed to have waived its right to purchase the System pursuant to this Section only in the following circumstances: i. If City does not indicate to Grantee in writing, within sixty (60) days of receipt of written notice of a proposed sale, transfer, corporate change, or assignment as contemplated in Section 9 hereinabove, its intention to exercise its right of purchase; or ii. It approves the assignment or sale of the Franchise as provided within this Section. 26 471173v6 RJV MA151-4 Packet Page Number 147 of 184 H1-A: Attachment H Alan Kantrud 2/2/16 11:44 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:42 AM Formatted: Indent: Left: 0.5" H Alan Kantrud 2/2/16 11:41 AM Deleted: J6 H Alan Kantrud 2/2/16 11:41 AM Deleted: , Attachment H Alan Kantrud 2/2/16 11:42 AM Deleted: 2 i. No Franchise may be transferred if City determines Grantee is in noncompliance of the Franchise unless an acceptable compliance program has been approved by City. The approval of any transfer of ownership pursuant to this Section shall not be deemed to waive any rights of City to subsequently enforce noncompliance issues relating to this Franchise even if such issues predated the approval, whether known or unknown to City. SECTION 10. PROTECTION OF INDIVIDUAL RIGHTS 1. Discriminatory Practices Prohibited. Grantee shall not deny service, deny access, or otherwise discriminate against Subscribers or general citizens on the basis of race, color, religion, national origin, sex, age, status as to public assistance, affectional preference, or disability. Grantee shall comply at all times with all other applicable federal, state, and city laws. 2. Subscriber Privacy. a. No signals including signals of a Class IV Channel may be transmitted from a Subscriber terminal for purposes of monitoring individual viewing patterns or practices without the express written permission of the Subscriber. Such written permission shall be for a limited period of time not to exceed one (1) year which may be renewed at the option of the Subscriber. No penalty shall be invoked for a Subscriber's failure to provide or renew such authorization. The authorization shall be revocable at any time by the Subscriber without penalty of any kind whatsoever. Such permission shall be required for each type or classification of Class IV Channel activity planned for the purpose of monitoring individual viewing patterns or practices. b. No lists of the names and addresses of Subscribers or any lists that identify the viewing habits of Subscribers shall be sold or otherwise made available to any party other than to Grantee or its agents for Grantee's service business use or to City for the purpose of Franchise administration, and also to the Subscriber subject of that information, unless Grantee has received specific written authorization from the Subscriber to make such data available. Such written permission shall be for a limited period of time not to exceed one (1) year which may be renewed at the option of the Subscriber. No penalty shall be invoked for a Subscriber's failure to provide or renew such authorization. The authorization shall be revocable at any time by the Subscriber without penalty of any kind whatsoever. c. Written permission from the Subscriber shall not be required for the conducting of System wide or individually addressed electronic sweeps for the purpose of verifying System integrity or monitoring for the purpose of billing. Confidentiality of such information shall be subject to the provision set forth in subparagraph (b) of this Section. 27 471173v6 RJV MA151-4 Packet Page Number 148 of 184 H1-A Attachment H Alan Kantrud 2/2/16 11:44 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:43 AM Deleted: J6, H Alan Kantrud 2/2/16 11:43 AM Deleted: 2 SECTION 11. UNAUTHORIZED CONNECTIONS AND MODIFICATIONSUNAUTHORIZED CONNECTIONS AND MODIFICATIONS 1. Unauthorized Connections or Modifications Prohibited. It shall be unlawful for any firm, Person, group, company, corporation, or governmental body or agency, without the express consent of the Grantee, to make or possess, or assist anybody in making or possessing, any unauthorized connection, extension, or division, whether physically, acoustically, inductively, electronically or otherwise, with or to any segment of the System or receive services of the System without Grantee's authorization. 2. Removal or Destruction Prohibited. It shall be unlawful for any firm, Person, group, company, or corporation to willfully interfere, tamper, remove, obstruct, or damage, or assist thereof, any part or segment of the System for any purpose whatsoever, except for any rights City may have pursuant to this Franchise or its police powers. 3. Penalty. Any firm, Person, group, company, or corporation found guilty of violating this section may be fined not less than Twenty Dollars ($20.00) and the costs of the action nor more than Five Hundred Dollars ($500.00) and the costs of the action for each and every subsequent offense. Each continuing day of the violation shall be considered a separate occurrence. SECTION 12. MISCELLANEOUS PROVISIONS 1. Franchise Renewal. Any renewal of this Franchise shall be performed in accordance with applicable federal, state and local laws and regulations. The term of any renewed Franchise shall be limited to a period not to exceed fifteen (15) years. 2. Work Performed by Others. All applicable obligations of this Franchise shall apply to any subcontractor or others performing any work or services pursuant to the provisions of this Franchise, however, in no event shall any such subcontractor or other performing work obtain any rights to maintain and operate a System or provide Cable Service. Grantee shall provide notice to City of the name(s) and address(es) of any entity, other than Grantee, which performs substantial services pursuant to this Franchise. 3. Amendment of Franchise Ordinance. Grantee and City may agree, from time to time, to amend this Franchise. Such written amendments may be made subsequent to a review session pursuant to Section 4 or at any other time if City and Grantee agree that such an amendment will be in the public interest or if such an amendment is required due to changes in federal, state or local laws. Provided, however, nothing herein shall restrict City's exercise of its police powers. 28 471173v6 RJV MA151-4 Packet Page Number 149 of 184 H1-A: Attachment H Alan Kantrud 2/2/16 11:44 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:42 AM Formatted: Indent: Left: 0.5" H Alan Kantrud 2/2/16 11:41 AM Deleted: J6 H Alan Kantrud 2/2/16 11:41 AM Deleted: , Attachment H Alan Kantrud 2/2/16 11:42 AM Deleted: 2 4. Compliance with Federal, State and Local Laws. a. If any federal or state law or regulation shall require or permit City or Grantee to perform any service or act or shall prohibit City or Grantee from performing any service or act which may be in conflict with the terms of this Franchise, then as soon as possible following knowledge thereof, either party shall notify the other of the point in conflict believed to exist between such law or regulation. Grantee and City shall conform to state laws and rules regarding cable communications not later than one year after they become effective, unless otherwise stated, and to conform to federal laws and regulations regarding cable as they become effective. b. If any term, condition or provision of this Franchise or the application thereof to any Person or circumstance shall, to any extent, be held to be invalid or unenforceable, the remainder hereof and the application of such term, condition or provision to Persons or circumstances other than those as to whom it shall be held invalid or unenforceable shall not be affected thereby, and this Franchise and all the terms, provisions and conditions hereof shall, in all other respects, continue to be effective and complied with provided the loss of the invalid or unenforceable clause does not substantially alter the agreement between the parties. In the event such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision which had been held invalid or modified is no longer in conflict with the law, rules and regulations then in effect, said provision shall thereupon return to full force and effect and shall thereafter be binding on Grantee and City. 5. Nonenforcement by City. Grantee shall not be relieved of its obligations to comply with any of the provisions of this Franchise by reason of any failure or delay of City to enforce prompt compliance. City may only waive its rights hereunder by expressly so stating in writing. Any such written waiver by City of a breach or violation of any provision of this Franchise shall not operate as or be construed to be a waiver of any subsequent breach or violation. 6. Rights Cumulative. All rights and remedies given to City by this Franchise or retained by City herein shall be in addition to and cumulative with any and all other rights and remedies, existing or implied, now or hereafter available to City, at law or in equity, and such rights and remedies shall not be exclusive, but each and every right and remedy specifically given by this Franchise or otherwise existing or given may be exercised from time to time and as often and in such order as may be deemed expedient by City and the exercise of one or more rights or remedies shall not be deemed a waiver of the right to exercise at the same time or thereafter any other right or remedy. 7. Grantee Acknowledgment of Validity of Franchise. Grantee acknowledges that it has had an opportunity to review the terms and conditions of this Franchise and that under current law Grantee believes that said terms and conditions are not unreasonable or arbitrary, and that Grantee believes City has the power to make the terms and conditions contained in this Franchise 29 471173v6 RJV MA151-4 Packet Page Number 150 of 184 H1-A Attachment H Alan Kantrud 2/2/16 11:46 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:43 AM Deleted: J6, H Alan Kantrud 2/2/16 11:43 AM Deleted: 2 SECTION 13. PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS 1. Publication: Effective Date. This Franchise shall be published in accordance with applicable local and Minnesota law. The Effective Date of this Franchise shall be the date of acceptance by Grantee in accordance with the provisions of Section. 2. Acceptance. a. Grantee shall accept this Franchise within sixty (60) of its enactment by the City Council, unless the time for acceptance is extended by City. Such acceptance by the Grantee shall be deemed the grant of this Franchise for all purposes provided, however, this Franchise shall not be effective until all City ordinance adoption procedures are complied with and all applicable timelines have run for the adoption of a City ordinance. In the event acceptance does not take place, or should all ordinance adoption procedures and timelines not be completed, this Franchise and any and all rights granted hereunder to Grantee shall be null and void. b. Upon acceptance of this Franchise, Grantee and City shall be bound by all the terms and conditions contained herein. c. Grantee shall accept this Franchise in the following manner: i. This Franchise will be properly executed and acknowledged by Grantee and delivered to City or its designee. ii. With its acceptance, Grantee shall also deliver any performance bond, letter of credit and insurance certificates required herein that are due but have not previously been delivered. DATED 30 H Alan Kantrud 2/2/16 11:44 AM Deleted: 471173v6 RJV MA151-4 Packet Page Number 151 of 184 H1-A: Attachment H Alan Kantrud 2/2/16 11:43 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:42 AM Formatted: Indent: Left: 0.5" H Alan Kantrud 2/2/16 11:41 AM Deleted: J6 H Alan Kantrud 2/2/16 11:41 AM Deleted: , Attachment H Alan Kantrud 2/2/16 11:42 AM Deleted: 2 EXHIBIT A PEG access channels dedicated to Maplewood 14 - Maplewood Access 15 – Maplewood Access 16 - Maplewood Government Access (originates City Hall) 18 - Maplewood Access 19 - Maplewood Access 20 - ISD 622 Educational Access (narrowcast North St. Paul, Maplewood, Oakdale, Lake Elmo) 95 - Maplewood Access 98 - Maplewood Access 801 - Maplewood Access (HD simulcast) 31 H Alan Kantrud 2/2/16 11:44 AM Deleted: 471173v6 RJV MA151-4 Packet Page Number 152 of 184 H1-A Attachment H Alan Kantrud 2/2/16 11:46 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:43 AM Deleted: J6, H Alan Kantrud 2/2/16 11:43 AM Deleted: 2 Indemnity Agreement INDEMNITY AGREEMENT made this ____ day of _____________________, 2016, by and between Qwest Broadband Services, Inc., a Delaware Corporation, party of the first part, hereinafter called “CenturyLink,” and the City of Maplewood, a Minnesota Municipal Corporation, party of the second part, hereinafter called “City.” WITNESSETH: WHEREAS, the City of Maplewood has awarded to Qwest Broadband Services, Inc. a franchise for the operation of a cable communications system in the City of Maplewood; and WHEREAS, the City has required, as a condition of its award of a cable communications franchise, that it be indemnified with respect to all claims and actions arising from the award of said franchise, NOW THEREFORE, in consideration of the foregoing promises and the mutual promises contained in this agreement and in consideration of entering into a cable television franchise agreement and other good and valuable consideration, receipt of which is hereby acknowledged, CenturyLink hereby agrees, at its sole cost and expense, to fully indemnify, defend and hold harmless the City, its officers, boards, commissions, employees and agents against any and all claims, suits, actions, liabilities and judgments for damages, cost or expense (including, but not limited to, court and appeal costs and reasonable attorneys’ fees and disbursements assumed or incurred by the City in connection therewith) arising out of the actions of the City in granting a franchise to CenturyLink. This includes any claims by another franchised cable operator against the City that the terms and conditions of the CenturyLink franchise are less burdensome than another franchise granted by the City or that the CenturyLink Franchise does not satisfy the requirements of applicable federal, state, or local law(s). The indemnification provided for herein shall not extend or apply to any acts of the City constituting a violation or breach by the City of the contractual provisions of the franchise ordinance, unless such acts are the result of a change in applicable law, the order of a court or administrative agency, or are caused by the acts of CenturyLink. The City shall give CenturyLink reasonable notice of the making of any claim or the commencement of any action, suit or other proceeding covered by this agreement. The City shall cooperate with CenturyLink in the defense of any such action, suit or other proceeding at the request of CenturyLink. The City may participate in the defense of a claim, but if CenturyLink provides a defense at CenturyLink’s expense then CenturyLink shall not be liable for any attorneys’ fees, expenses or other costs that City may incur if it chooses to participate in the defense of a claim, unless and until separate representation is required. If separate representation to fully protect the interests of both parties is or becomes necessary, such as a conflict of interest, in accordance with the Minnesota Rules of Professional Conduct, between the City and the counsel selected by CenturyLink to represent the City, CenturyLink shall pay, from the date such separate representation is required forward, all reasonable expenses incurred by the City in defending itself with regard to any action, suit or proceeding indemnified by CenturyLink. Provided, however, that in the event that such separate representation is or becomes necessary, and City desires to hire counsel or any other outside experts or consultants and desires CenturyLink to pay those expenses, then City shall be required to obtain CenturyLink’s consent to the engagement of such counsel, experts or consultants, such consent not to be unreasonably withheld. Notwithstanding the foregoing, the parties agree that the City may utilize at any time, at its own cost and expense, its own City Attorney or outside counsel with respect to any claim brought by another franchised cable operator as described in this agreement. The provisions of this agreement shall not be construed to constitute an amendment of the cable communications franchise ordinance or any portion thereof, but shall be in addition to and independent of any other similar provisions contained in the cable communications franchise ordinance or any other agreement of the parties hereto. The provisions of this agreement shall not be dependent or conditioned upon the validity of the cable communications franchise ordinance or the validity of any of the procedures or agreements involved in the award or acceptance of the franchise, but shall be and remain a binding obligation of the parties hereto even if the cable communications franchise ordinance or the grant of the franchise is declared null and void in a legal or administrative proceeding. Packet Page Number 153 of 184 H1-A: Attachment H Alan Kantrud 2/2/16 11:43 AM Deleted: <sp> H Alan Kantrud 2/2/16 11:42 AM Formatted: Indent: Left: 0.5" H Alan Kantrud 2/2/16 11:41 AM Deleted: J6 H Alan Kantrud 2/2/16 11:41 AM Deleted: , Attachment H Alan Kantrud 2/2/16 11:42 AM Deleted: 2 It is the purpose of this agreement to provide maximum indemnification to City under the terms set out herein and, in the event of a dispute as to the meaning of this Indemnity Agreement, it shall be construed, to the greatest extent permitted by law, to provide for the indemnification of the City by CenturyLink. This agreement shall be a binding obligation of and shall inure to the benefit of, the parties hereto and their successor's and assigns, if any. QWEST BROADBAND SERVICES, INC. Dated: _______________, 2015 By: __________________________________ Its: __________________________________ STATE OF LOUISIANA ) ) SS ) The foregoing instrument was acknowledged before me this ______ day of 2015, by ________________________, the _____________________ of Qwest Broadband Services, Inc., a Delaware Corporation, on behalf of the corporation. ___________________________________ Notary Public Commission Expires_________________ Packet Page Number 154 of 184 H-B MEMORANDUM TO: City Council FROM: H. Alan Kantrud, General Counsel SUBJECT: SUMMARY PUBLICATION REGARDING CABLE TELEVISION FRANCHISE FOR QWEST BROADBAND SERVICES DATE: February 2, 2016 INTRODUCTION Council has passed the Franchise Ordinance enfranchising Qwest Broadband Services d/b/a CenturyLink and must now publish the Ordinance to comply with State Law to become “law.” BACKGROUND To be valid in Minnesota as a, “law,” of the City, Ordinances must be published in the City’s Legal Newspaper. By operation of state law a City may publish a, “summary,” of Ordinances that are lengthy so long as the summary complies with certain Statutory requirements. The summary statement is attached hereto for your review and approval. DISCUSSION Minnesota Statutes provides the following authority, guidance and requirements for publishing public notices, including Ordinances: 412.191 MEMBERS; POWERS, DUTIES. Subd. 4.Ordinances. Every ordinance shall be enacted by a majority vote of all the members of the council except where a larger number is required by law. It shall be signed by the mayor, attested by the clerk and published once in the official newspaper. In the case of lengthy ordinances, or ordinances which include charts or maps, if the city council determines that publication of the title and a summary of an ordinance would clearly inform the public of the intent and effect of the ordinance, the council may by a four-fifths vote of its members direct that only the title of the ordinance and a summary be published (emp. added) The summary provided does comply with the requirements of this section as well as the further specific requirements of Section 331A. RECOMMENDATION It is recommended that the City Council pass the attached summary of the Franchise Ordinance enfranchising CenturyLink to provide Cable Communication Services in the City of Maplewood. This requires a super-majority vote (4/5’s) to pass. ATTACHMENT Proposed Summary of Ordinance for Publication Packet Page Number 155 of 184 H1-‐B: Attachment Please be advised that the City of Maplewood has duly-‐passed the following ORDINANCE: AN ORDINANCE GRANTING A FRANCHISE TO QWEST BROADBAND SERVICES, INC D/B/A CENTURYLINK TO CONSTRUCT, OPERATE, AND MAINTAIN A CABLE SYSTEM; SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE SYSTEM AND THE PUBLIC RIGHTS- OF-WAY IN CONJUNCTION WITH THE CITY'S RIGHT-OF-WAY ORDINANCE, IF ANY, AND PRESCRIBING PENALTIES FOR THE VIOLATION OF THE PROVISIONS HEREIN. The following is a SUMMARY of the Ordinance: This Ordinance provides the Company “Qwest Broadband, d/b/a CenturyLink” the legal authority to use publicly-owned Right of Way (ROW) to transport and deliver its commercial cable products and services to customers eligible to receive those products and services and who choose to subscribe in the geographic area of the municipality of Maplewood. In addition to providing its own products, Company is required to support several channels dedicated to governmental and public programming free of charge by Company to its subscribers. Further, this Ordinance requires the Company to pay to the City of Maplewood a “franchise fee” of 5% of their quarterly gross revenues derived from customers in Maplewood and shall collect a Public Educational and Government (PEG) access fee from each subscriber as well and remit the same to the City. PLEASE BE ADVISED, this is not the full text of the Ordinance passed and the published material is only a summary. The full text is available for public inspection at the City of Maplewood, 1830 County Road B, East, Maplewood, MN 55109 or delivered upon request electronically or by U.S. Mail. Summary complies with Minn. Stat. §§ 331A.05 subd. 8. & 412.191 subd 4. Packet Page Number 156 of 184 J1 MEMORANDUM TO: City Council FROM: Melinda Coleman, City Manager DATE: February 1, 2016 SUBJECT: Senior Advisory Task Force Report Introduction The Senior Advisory Task Force was appointed by the Maplewood City Council on September 14th. The Task Force Members include: Karla Sand, Fran Juker, Loretta Novak, Bill Dorgan, Jerry Horgan and Russell Susag. Staff members include Melinda Coleman and Neil Breneman. Background The Task Force met on September 22nd, October 20th, November 10th and December 15th. (Agendas are attached). The Council asked the Task Force to review the needs of Senior Citizens in the Community and to develop recommendations on how the City can assist and add to the quality of life for our senior residents. At the Task Force meetings the members reviewed existing services and gathered information pertaining to the following: • Senior Demographics and Poverty (15% of Maplewood residents are over 65) • Current inventory of Services in the Maplewood Area • Housing types and choices with location map and contact information for Senior Housing- including Nursing Care, Assisted Living and Income Based Rentals o 14 Maplewood Senior Rentals o 5 Care facilities o 2 Maplewood Senior Owner Facilities With only 5% of Ramsey County's available land, there is every incentive for the community to consider different land use strategies. Density can be a comparative strength for the community in spite of size constraints. • Transportation Services and needs • Social Isolation, lifelong learning and community building for Seniors The Task Force also reviewed programs in other communities including Richfield, Cottage Grove, St. Louis Park and Roseville. Members did research on programs offered by the Metropolitan Area Agency on Aging, the Block Nurse Program and the Gladstone Community Center. The Task Force also discussed the importance of community gathering places such as the MCC, National Night Out and our faith-based programs. Packet Page Number 157 of 184 J1 Kate Houston of the Metropolitan Area Agency on Aging is Project Manager for the Livable Community for all Ages. The MAAA’s Blueprint for Action was presented and reviewed by the Advisory Council. The action areas are Housing, Planning and Zoning, Transportation, Health and Supportive Services, Cultures and Lifelong Learning, Strengthen Neighborhoods and Public Safety, and Civic Engagement Opportunities. Melinda explained that the City is currently addressing these actions. The Advisory Council recommends that Melinda report at a six month review meeting on the progress or implementation of these actions. An Essential Feature of Age-Friendly Cities Checklist is available. The Checklist is based on the results of the WHO Global Age-Friendly Cities project consultation in 33 cities in 22 countries. The Checklist is a tool for a city’s self-assessment and a map for charting progress. At the Final Task Force Meeting on December 15th, the group created a list of Recommendations for City Council Consideration. These include the following: • Create a Senior Resource Guide (See attachments for type of resources to include) • Seek to get a Maplewood resident or staff appointed to the Met Council Transportation Advisory Board • Ask the City Council to adopt the World Health Organization’s “Features of Age Friendly Cities”. (Attached) • Foster Communication and Relationships with Maplewood Service Providers such as Gladstone Center and our Church communities. Help connect seniors to these and other social organizations • Consider senior needs (such as sidewalks, ramps, room layout and amenities) when considering new housing and commercial developments. • Explore funding and other resources and services that allow seniors to stay in their homes. • Consideration of convening the Senior Task Force once a year for a month or two to review progress on these goals. Budget Impact There is no estimated budgetary impact projected for this discussion with the exception of staff time. Recommendation Staff recommends that the City Council review the report and provide direction. Attachments 1. Task Force Agendas Packet Page Number 158 of 184 AGENDA CITY OF MAPLEWOOD SENIOR ADVISORY TASK FORCE Tuesday, September 22, 2015 1 p.m. Maplewood Room - Maplewood City Hall 1830 County Road B East 1. Welcome and Introductions 2. Overview of Work Plan and Goals for Task Force 3. Brainstorming of ideas for additional goals/work plan 4. Review Housing Resources in Maplewood 5. Select next topic area and confirm October Meeting date and time 6. Other items? 7. Adjourn J1, Attachment 1 Packet Page Number 159 of 184 AGENDA CITY OF MAPLEWOOD SENIOR ADVISORY TASK FORCE Tuesday, October 20, 2015 3:30 p.m. Maplewood Room - Maplewood City Hall 1830 County Road B East 1. Welcome – Chair, Karla Sand 2. Introductions 3. Approve Agenda 4. Review Work Plan and Goals – Melinda Coleman ..City of Maplewood Statistics 5. Review Individual Assignments .. Loretta Novak - block nurse program ..Bill Dorgan - other city senior programs (Cottage Grove, Roseville) ..Neil Breneman - volunteer programs ..Melinda Coleman - poverty ..Karla Sand- MBA, MAAA, SLL programs ..Fran Juker - National Night Out events 6. Future Task Force Direction 7. Next Meeting – November 10, 2015 8. Adjourn – 4:30 p.m. J1, Attachment 1 Packet Page Number 160 of 184 City of Maplewood Senior Advisory Task Force City Hall, November 10, 2015, 1:30 p.m. - 3:30 p.m. AGENDA 1. Call to Order Chair, Karla Sand 2. Welcome, Introductions 3. Approve Agenda 4. Reports Cottage Grove Bill Dorgan Gladstone Senior Center Karla Sand 5. Discussion on report to Maplewood City Council Karla Sand Melinda Coleman Seniors Basic Needs for Community Living Interpret and assess demographics Current Services across the lifespan Housing choices, special transportation options, community design, accessible public spaces Social Makeup - Intergenerational focus, lifelong learning, community building How to meet basic needs Identify partners Identify other aging services 6. Assignments 7. Next Meeting 8. Adjourn J1, Attachment 1 Packet Page Number 161 of 184 City of Maplewood Senior Advisory Task Force City Hall, December 15, 2015, 3:00 - 4:00 p.m. AGENDA 1. Call to Order Chair, Karla Sand 2. Welcome, Introductions 3. Approve Agenda 4. Discussion on report to Maplewood City Council Karla Sand Melinda Coleman 5. Announcements 7. Adjourn J1, Attachment 1 Packet Page Number 162 of 184 J1, Attachment 1 Packet Page Number 163 of 184 J1, Attachment 1 Packet Page Number 164 of 184 J1, Attachment 1 Packet Page Number 165 of 184 J1, Attachment 1 Packet Page Number 166 of 184 J1, Attachment 1 Packet Page Number 167 of 184 J2 MEMORANDUM TO: Melinda Coleman, City Manager FROM: Karen Haag, Director Citizen Services SUBJECT: Consider Approval of Penalties for Alcohol Compliance Failures DATE: January 28, 2016 Introduction The City of Maplewood Police Department conducts compliance checks on all intoxicating liquor and tobacco license holders. Since the completion of the alcohol compliance checks in 2014 and 2015, staff has been working to propose an appropriate penalty for those establishments which did not pass. In all instances an employee failed the compliance check by selling alcohol to an underage buyer, and was issued a criminal complaint for the offense, which has been or will be prosecuted. Background Alcohol compliance checks have been regularly conducted since 2000. In the past, Council has opted not to establish strict guidelines for penalties, on the basis that some compliance failures are more egregious than others, and therefore may warrant stricter penalties. In addition, as part of an incentive program implemented by Council in 2005 pertaining to assessing penalties, a business’ violation will be removed from its record if the business remains violation free for five (5) consecutive years following a failure. While the City does not have specified fines for alcohol compliance failures, past practice has been to adhere to the following guidelines for imposing penalties: $500 for the first offense, $1,000 for the second offense, $2000 for the third offense. In addition, and depending on the nature of the failure, suspension or possible revocation of the license may be also imposed. Attached is statistical history of compliance failures for each alcohol and tobacco sales licensed establishment. Establishments which have incurred alcohol compliance failures in 2014 and 2015 are highlighted and, in line with past practices, proposed penalties have been recommended for each. All establishments have been notified of the proposed civil penalty against them, and were encouraged to attend the February 8, 2016 council meeting. Staff was contacted by Sarrack’s Int’l Wine & Spirits and MGM Liquor Warehouse, who indicated a representative of the establishment was unavailable to attend the February 8, 2016 council meeting. Both establishments have been requested the discussion of their violations be postponed to the March 14, 2016 council meeting, at which they plan to be in attendance. Packet Page Number 168 of 184 J2 Recommendation Staff recommends Council consider the proposed penalties, attached. Attachments 1. List of business with failed alcohol compliance checks in 2014-2015, and statistical history of compliance failures, within the past five (5) years. Packet Page Number 169 of 184 Statistical History of Compliance Failures of Current Alcohol and Tobacco Sales License Holders BUSINESS NAME - ADDRESS COMPLIANCE FAILURE COMPLIANCE DATE STATUS STAFF RECOMMENDED FINE COUNCIL APPROVED FINE/ACTION 5-8 TAVERN - 2289 MINNEHAHA AVE ALCOHOL 11/14/2009 COMPLETED 03/22/2010 - APPROVED $500 FINE A1 LIQUOR - 19 CENTURY AVE S ALCOHOL 12/30/2015 IN PROGRESS $500 FINE ACAPULCO RESTAURANT - 3069 WHITE BEAR AVE ALCOHOL 07/23/2008 COMPLETED 10/27/2008 - APPROVED $1,000 FINE ALCOHOL 01/01/2004 COMPLETED 02/14/2005 - APPROVED $500 FINE AMAROSE CONVENIENCE STORE - 3001 WHITE BEAR AVE TOBACCO 07/27/2010 COMPLETED 01/10/2011 - APPROVED $500 FINE TOBACCO 12/15/2009 COMPLETED 04/26/2010 - APPROVED $250 FINE BAMBU ASIAN CUISINE - 1715 BEAM AVE ALCOHOL 05/23/2012 COMPLETED 11/15/2012 - APPROVED $2,000 FINE ALCOHOL 12/10/2010 COMPLETED 04/25/2011 - APPROVED $1,000 FINE ALCOHOL 11/29/2008 COMPLETED 03/09/2009 - APPROVED $250 FINE BIG DISCOUNT LIQUOR - 2515 WHITE BEAR AVE TOBACCO 11/24/2014 IN PROGRESS TOBACCO 03/15/2012 COMPLETED 07/09/2012 - APPROVED $500 FINE ALCOHOL 10/10/2006 COMPLETED 11/10/2008 - APPROVED $500 FINE TOBACCO 08/02/2006 COMPLETED 08/28/2006 - APPROVED $250 FINE BLEECHERS BAR & GRILL - 2220 WHITE BEAR AVE N ALCOHOL 12/17/2015 IN PROGRESS $1000 FINE ALCOHOL 05/23/2012 COMPLETED 9/24/2012 - APPROVED $500 FINE CHILI'S BAR & GRILL - 1800 BEAM AVE ALCOHOL 05/23/2012 COMPLETED 09/24/2012 - APPROVED $1,000 FINE ALCOHOL 06/01/2010 COMPLETED 01/10/2011 - APPROVED $500 FINE CHIPOTLE #1438- 3095 WHITE BEAR AVE ALCOHOL 05/23/2012 COMPLETED 9/24/2012 - APPROVED $500 FINE J2, Attachment 1Packet Page Number 170 of 184 Statistical History of Compliance Failures of Current Alcohol and Tobacco Sales License Holders BUSINESS NAME - ADDRESS COMPLIANCE FAILURE COMPLIANCE DATE STATUS STAFF RECOMMENDED FINE COUNCIL APPROVED FINE/ACTION COSTCO DISCOUNT LIQUOR - 1431 BEAM AVE ALCOHOL 10/23/2009 COMPLETED 03/22/2010 - APPROVED $500 FINE CUB FOODS #30244 (GROCERY STORE) - 100 COUNTY ROAD B W ALCOHOL 12/17/2015 IN PROGRESS $500 FINE CUB FOODS #31264 (GROCERY STORE) - 2390 WHITE BEAR AVE ALCOHOL 12/14/2009 COMPLETED 03/22/2010 - APPROVED $500 FINE FLEMINGS AUTO SERVICE - 2271 WHITE BEAR AVE N TOBACCO 05/26/2014 IN PROGRESS TOBACCO 10/19/2012 COMPLETED 03/11/2013 - APPROVED $250 FINE FREEDOM VALU CENTER # 65 - 1535 BEAM AVE TOBACCO 08/13/2009 COMPLETED 03/22/2010 - APPROVED $750 FINE TOBACCO 11/21/2006 COMPLETED 03/22/2010 - APPROVED $500 FINE TOBACCO 08/03/2006 COMPLETED 08/26/2006 - APPROVED $250 FINE GULDEN'S ROADHOUSE - 2999 MAPLEWOOD DRIVE ALCOHOL 05/23/2012 COMPLETED 08/13/2012 - APPROVED $2,000 FINE ALCOHOL 03/05/2011 COMPLETED 02/13/2011 - APPROVED $1,000 FINE ALCOHOL 11/13/2009 COMPLETED 03/22/2010 - APPROVED $500 FINE ALCOHOL 10/23/2004 COMPLETED 02/14/2005 - APPROVED $1,000 FINE ALCOHOL 05/12/2001 COMPLETED 06/25/2001 - APPROVED $500 FINE HERITAGE LIQUOR - 1347 FROST AVE ALCOHOL 05/27/2010 COMPLETED 01/10/2011 - APPROVED $1,000 FINE ALCOHOL 11/22/2008 COMPLETED 03/9/2009 - APPROVED $500 FINE HOLIDAY - 280 S MCKNIGHT ROAD TOBACCO 10/19/2012 COMPLETED 03/11/2013 - APPROVED $750 FINE TOBACCO 07/13/2010 COMPLETED 01/10/2011 - APPROVED $500 FINE TOBACCO 12/16/2008 COMPLETED 03/22/2010 - APPROVED $250 FINE IN "N" OUT MARKETS (PREVIOUSLY NAMED HOLIDAY) - 743 CENTURY AVE TOBACCO 12/11/2005 COMPLETED 07/24/2006 - APPROVED $750 FINE J2, Attachment 1Packet Page Number 171 of 184 Statistical History of Compliance Failures of Current Alcohol and Tobacco Sales License Holders BUSINESS NAME - ADDRESS COMPLIANCE FAILURE COMPLIANCE DATE STATUS STAFF RECOMMENDED FINE COUNCIL APPROVED FINE/ACTION JAKE'S CITY GRILLE - 1745 BEAM AVE E ALCOHOL 12/17/2015 IN PROGRESS $500 FINE KNOWLAN'S SUPERMARET - 2720 STILLWATER ROAD TOBACCO 05/29/2014 IN PROGRESS TOBACCO 12/22/2005 COMPLETED 08/23/2006 - APPROVED $600 FINE LANCER AT EDIBURGH - KELLER GOLF COURSE - 2166 MAPLEWOOD DRIVE TOBACCO 06/18/2015 IN PROGRESS MAPLEWOOD KWIK MART - 2150 MCMENEMY TOBACCO 03/15/2012 COMPLETED 07/09/2012 - APPROVED $250 FINE TOBACCO 10/19/2007 COMPLETED 04/12/2010 - APPROVED $250 FINE MAPLEWOOD TOBACCO OUTLET PLUS - 2515 WHITE BEAR AVE #A17 TOBACCO 06/18/2015 IN PROGRESS MAPLEWOOD WINE CELLAR - 1281 FROST AVE TOBACCO 07/13/2010 COMPLETED 01/10/2011 - APPROVED $250 FINE ALCOHOL 11/13/2009 COMPLETED 03/22/2010 - APPROVED $500 FINE MERWIN LIQUORS - 1700 RICE STREET ALCOHOL 08/15/2014 IN PROGRESS $2,000 FINE ALCOHOL 04/28/2012 COMPLETED 11/15/2012 - APPROVED $1,000 FINE ALCOHOL 11/29/2008 COMPLETED 04/12/2010 - APPROVED $500 FINE MGM LIQUOR WAREHOUSE - 2950 WHITE BEAR AVE - OPENED 01/22/2007 ALCOHOL 12/17/2015 IN PROGRESS $2,000 FINE ALCOHOL 11/29/2011 COMPLETED 07/09/2012 - APPROVED $2,000 FINE ALCOHOL 06/01/2010 COMPLETED 01/10/2011 - APPROVED $1,000 FINE ALCOHOL 12/14/2009 COMPLETED 04/12/2010 - APPROVED $500 FINE TOBACCO 11/26/2008 COMPLETED 04/12/2010 - APPROVED $250 FINE J2, Attachment 1Packet Page Number 172 of 184 Statistical History of Compliance Failures of Current Alcohol and Tobacco Sales License Holders BUSINESS NAME - ADDRESS COMPLIANCE FAILURE COMPLIANCE DATE STATUS STAFF RECOMMENDED FINE COUNCIL APPROVED FINE/ACTION NOODLES AND COMPANY - 2865 WHITE BEAR AVE ALCOHOL 12/17/2015 IN PROGRESS $1,500 FINE ALCOHOL 08/15/2014 IN PROGRESS $500 FINE OSAKA SUSHI & HIBACHI - 1900 COUNTY ROAD D E ALCOHOL 12/17/2015 IN PROGRESS $500 FINE OUTBACK STEAKHOUSE - 1770 BEAM AVE ALCOHOL 03/05/2011 COMPLETED 07/09/2012 - APPROVED $1,000 FINE ALCOHOL 11/29/2008 COMPLETED 04/12/2010 - APPROVED $500 FINE PARTY TIME LIQUOR - 1835 LARPENTEUR AVE ALCOHOL 07/16/2008 COMPLETED 11/10/2008 - APPROVED $1,000 FINE ALCOHOL 07/06/2006 COMPLETED 08/26/2006 - APPROVED $500 FINE SARRACK'S INT'L WINE & SPIRITS - 2305 STILLWATER ALCOHOL 12/30/2015 IN PROGRESS $2,000 FINE ALCOHOL 03/05/2011 COMPLETED 02/13/2012 - APPROVED $2,000 FINE AND A 3-DAY SUSPENSION OF LICENSE ALCOHOL 12/20/2010 COMPLETED 04/25/2011 - APPROVED $2,000 FINE ALCOHOL 11/13/2009 COMPLETED 03/22/2010 - APPROVED $1,000 FINE ALCOHOL 10/10/2006 COMPLETED 10/27/2008 - APPROVED $500 FINE STARGATE DANCE CLUB - 1700 RICE ST N ALCOHOL 12/04/2011 COMPLETED 07/09/2012 - APPROVED $500 FINE SUPERAMBERICA #4089 - 11 CENTURY AVE N ALCOHOL 03/05/2011 COMPLETED 02/13/2012 - APPROVED $500 FINE THE DOG HOUSE BAR & GRILL - 2029 WOODLYN ALCOHOL 03/05/2011 COMLETED 02/13/2012 - APPROVED $500 FINE THE PONDS AT BATTLE CREEK GOLF COURSE - 601 CENTURY AVE S ALCOHOL 05/20/2010 COMPLETED 05/09/2011 - APPROVED $500 FINE ALCOHOL 01/01/2004 COMPLETED 02/14/2005 - APPROVED $500 FINE TIKI HUT - 1820 RICE STREET N ALCOHOL 12/17/2015 IN PROGRESS $500 FINE J2, Attachment 1Packet Page Number 173 of 184 MEMORANDUM TO: Melinda Coleman, City Manager FROM: Steven Love, City Engineer / Deputy Public Works Director Jon Jarosch, Civil Engineer II DATE: January 21, 2016 SUBJECT: Beebe Road Street Improvements, Project 13-10 a. Consider Approval of Resolution Approving Plans and Specifications and Advertising for Bids b. Consider Approval of Resolution Ordering Preparation of Assessment Roll Introduction Final plans and specifications for the above referenced project have been completed and are ready to be advertised for bids. The bid opening for this project is tentatively proposed for 2:00 p.m., Wednesday, March 2, 2016. The next step after approving the advertisement for bids is ordering the preparation of the assessment roll. Background The feasibility report was accepted and plans ordered to design at the November 9, 2015 City Council meeting. On November 23, 2015 the project was ordered after the Public Hearing was held. It is anticipated an Assessment Hearing will be held on March 14, 2016 with an award of bid considered on that date as well. An open house meeting is planned for March 2, 2016 at the Maplewood Community Center. At the open house city staff will give a brief presentation on assessments, provide an opportunity for residents to view the design plans, and will be available to answer questions about the project or assessments. Discussion The aging and deteriorating condition of Beebe Road lying north of Larpenteur Avenue and south of Holloway Avenue (see attached project location map) presents an ongoing maintenance problem for the City of Maplewood Street Department. The condition of the existing street also represents a decreased level of service for the residents of Maplewood, with the City receiving numerous complaints from area residents about substandard street conditions. The proposed project is focused primarily on fixing the condition of the bituminous pavement. Staff is recommending reclaiming the top 10 inches of the street section. By reclaiming, grinding, the top 10 inches of the street section, the crushed bituminous is blended with the underlying aggregate to form new base material to support the road. After the road has been reclaimed and excess material removed, the road base will be reshaped to provide adequate J3 Packet Page Number 174 of 184 drainage. The new base material will be compacted and a new bituminous pavement surface will be installed. The feasibility study found that the project is feasible, necessary, and cost effective from an engineering standpoint. The City Council approved and accepted the feasibility study on November 9, 2015 as mentioned above. Budget Impact The total project cost, based on the current design plans, is estimated at $1,449,431.32. On November 9, 2015 the finance director was authorized by the City Council to make the financial transfers necessary to implement the financing plan for the project. A project budget of $1,522,296 was established based on the engineer estimate within the approved feasibility study report. The approved financing plan is as follows: Similar to past practice and policy, the City hired an independent appraisal firm to ascertain an opinion of special benefit received by properties within the neighborhood project area. The opinion found that the City’s proposed assessment rate of $3,450.00 per parcel is justifiable. An Assessment Hearing will likely be held on March 14, 2016 to specifically address the proposed assessments. Prior to that meeting the City Council would adopt the roll and officially call for the hearing. All assessable residential and commercial/multi-family parcels will receive official notice prior to the Assessment Hearing. Recommendation It is recommended that the City Council approve the attached resolutions for the Beebe Road Street Improvements, City Project 13-10, Approving Plans and Advertisement for Bids and Ordering the Preparation of the Assessment Roll. Attachments 1. Resolution Approving Plans and Advertising for Bid 2. Resolution Ordering Preparation of Assessment Roll 3. Project Location Map FUNDING SOURCE TOTAL AMOUNT % OF TOTAL PROJECT G.O. IMPROVEMENT BONDS $217,846 14% SANITARY SEWER FUND $173,896 11% ENVIRONMENTAL UTILITY FUND $86,790 6% SPECIAL BENEFIT ASSESSMENT BONDS $302,944 20% St. Paul W.A.C. FUND $7,910 0.5% State Aid FUNDS $725,000 48% St. Paul Water $7,910 0.5% TOTAL FUNDING $1,522,296 100% ESTIMATED PROJECT COST RECOVERY J3 Packet Page Number 175 of 184 RESOLUTION APPROVING PLANS ADVERTISING FOR BIDS WHEREAS, pursuant to resolution passed by the City Council on November 9, 2015 plans and specifications for the Beebe Road Street Improvements, City Project 13-10, have been prepared by (or under the direction of) the City Engineer, who has presented such plans and specifications to the council for approval, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF MAPLEWOOD, MINNESOTA: 1. Such plans and specifications, a copy of which are attached hereto and made a part hereof, are hereby approved and ordered placed on file in the office of the City Engineer. 2. The City Clerk or office of the City Engineer shall prepare and cause to be inserted into the official paper and Finance and Commerce an advertisement for bids upon the making of such improvement under such approved plans and specifications. The advertisement shall be published twice, at least twenty-one days before the date set for bid opening, shall specify the work to be done, shall state that bids will be publicly opened and considered by the council at 2:00 p.m. on the 2nd day of March, 2016, at city hall and that no bids shall be considered unless sealed and filed with the clerk and accompanied by a certified check or bid bond, payable to the City of Maplewood, Minnesota for five percent of the amount of such bid. 3. The City Clerk and City Engineer are hereby authorized and instructed to receive, open, and read aloud bids received at the time and place herein noted, and to tabulate the bids received. The council will consider the bids, and the award of a contract, at the regular city council meeting of March 14, 2016. Approved this 8th day of February 2016. J3, Attachment 1 Packet Page Number 176 of 184 RESOLUTION ORDERING PREPARATION OF ASSESSMENT ROLL WHEREAS, the City Clerk and City Engineer will receive bids for the Beebe Road Street Improvements, City Project 13-10, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF MAPLEWOOD, MINNESOTA that the City Clerk and City Engineer shall forthwith calculate the proper amount to be specially assessed for such improvement against every assessable lot, piece or parcel of land abutting on the streets affected, without regard to cash valuation, as provided by law, and they shall file a copy of such proposed assessment in the city office for inspection. FURTHER, the City Clerk shall, upon completion of such proposed assessment notify the City Council thereof. Approved this 8th day of February 2016. J3, Attachment 2 Packet Page Number 177 of 184 J3, Attachment 3 Packet Page Number 178 of 184 MEMORANDUM TO: Melinda Coleman, City Manager FROM: Steven Love, City Engineer / Deputy Public Works Director Jon Jarosch, Civil Engineer II DATE: January 22, 2016 SUBJECT: Lakewood-Sterling Area Street Improvements, Project 15-11 a. Consider Approval of Resolution Approving Plans and Specifications and Advertising for Bids b. Consider Approval of Resolution Ordering Preparation of Assessment Roll Introduction Final plans and specifications for the above referenced project have been completed and are ready to be advertised for bids. The bid opening for this project is tentatively proposed for 10:00 a.m., Wednesday, March 2, 2016. The next step after approving the advertisement for bids is ordering the preparation of the assessment roll. Background The feasibility report was accepted and plans ordered to design at the November 9, 2015 City Council meeting. On November 23, 2015 the project was ordered after the Public Hearing was held. It is anticipated an Assessment Hearing will be held on March 14, 2016 with an award of bid considered on that date as well. An open house meeting is planned for March 9, 2016 at the Maplewood Community Center. At the open house city staff will give a brief presentation on assessments, provide an opportunity for residents to view the design plans, and will be available to answer questions about the project or assessments. Discussion The Lakewood/Sterling Area Street Improvements project, City Project 15-11 consists of two separate areas. The Lakewood area, which is being referred to as Area #1, consists of the streets shown on the attached Project Location Map lying north of Carver Avenue and south of Highwood Avenue. These streets are part of the City’s work plan as a result of the adoption of the Gas Franchise Fee. The Sterling Street Area, which is being referred to as Area #2, consists of that part of Sterling Street shown on the attached Project Location Map lying north of Linwood Avenue and south of Londin Lane. This portion of Sterling Street is scheduled for street improvements in 2016 according to the 2016-2020 Maplewood Capital Improvement Plan (CIP). The aging and deteriorating condition of roads shown on the project location maps for Area #1 and Area #2 presents an ongoing maintenance problem for the City of Maplewood Street J4 Packet Page Number 179 of 184 Department. The condition of the existing streets also represents a decreased level of service for the residents of Maplewood, with the City receiving numerous complaints from area residents about substandard street conditions. The proposed project for both areas is focused primarily on fixing the condition of the bituminous pavement. Staff is recommending reclaiming the top 8 inches of the street section. By reclaiming, grinding, the top 8 inches of the street section, the crushed bituminous is blended with the underlying aggregate to form new base material to support the road. After the road has been reclaimed and excess material removed, the road base will be reshaped to provide adequate drainage. The new base material will be compacted, and a new bituminous pavement surface will be installed. The feasibility study found that the project is feasible, necessary, and cost effective from an engineering standpoint. The City Council approved and accepted the feasibility study on November 9, 2015 as mentioned above. Budget Impact The total project cost is estimated at $1,939,109.84. On November 9, 2015 the finance director was authorized by the City Council to make the financial transfers necessary to implement the financing plan for the project. A total project budget of $1,890,364 was established. The approved financing plan is as follows: The proposed project is designed with two bid alternate options. The first bid alternate includes the full depth pavement reclamation and pavement replacement of Moreland Court lying east of McKnight Road. The second bid alternate includes the pavement removal and replacement of Sterling Street lying north of Carver Avenue and south of Schadt Drive. These bid alternates allow the City to adjust the scope of improvements to conform to budgetary constraints while FUNDING SOURCE TOTAL AMOUNT % OF TOTAL PROJECT GAS FRANCHISE FEE FUND $520,000 46% SPECIAL BENEFIT ASSESSMENT $529,575 47% ENVIRONMENTAL UTILITY FUND $26,189 2% SANITARY SEWER FUND $47,535 4% ST PAUL W.A.C. FUND $14,117 1% AREA #1 FUNDING $1,137,417 100% FUNDING SOURCE TOTAL AMOUNT % OF TOTAL PROJECT G.O. IMPROVEMENT BONDS $368,760 49% SPECIAL BENEFIT ASSESSMENT $312,475 42% ST. PAUL WATER $4,757 1% ST. PAUL W.A.C. FUND $4,757 1% ENVIRONMENTAL UTILITY FUND $43,648 6% SANITARY SEWER FUND $18,550 2% AREA #2 FUNDING $752,947 100% TOAL PROJECT FUNDING $1,890,364 ESTIMATED PROJECT COST RECOVERY (LAKEWOOD AREA) (STERLING AREA) AREA #1 AREA #2 J4 Packet Page Number 180 of 184 maximizing the work completed. In essence, this would allow the bids to be received and the city can choose the scope of the project based on the cost it is comfortable with in order to proceed. Similar to past practice and policy, the City hired an independent appraisal firm to ascertain an opinion of special benefit received by properties within the neighborhood project area. The opinion found that the City’s proposed assessment rate of $3,450.00 per parcel is justifiable. An Assessment Hearing will likely be held on March 14, 2016 to specifically address the proposed assessments. Prior to that meeting the City Council would adopt the roll and officially call for the hearing. All assessable residential and commercial/multi-family parcels will receive official notice prior to the Assessment Hearing. Recommendation It is recommended that the City Council approve the attached resolutions for the Lakewood- Sterling Area Street Improvements, City Project 15-11, Approving Plans and Advertisement for Bids and Ordering the Preparation of the Assessment Roll. Attachments 1. Resolution Approving Plans and Advertising for Bid 2. Resolution Ordering Preparation of Assessment Roll 3. Project Location Map J4 Packet Page Number 181 of 184 RESOLUTION APPROVING PLANS ADVERTISING FOR BIDS WHEREAS, pursuant to resolution passed by the City Council on November 9, 2015 plans and specifications for the Lakewood-Sterling Area Street Improvements, City Project 15- 11, have been prepared by (or under the direction of) the City Engineer, who has presented such plans and specifications to the council for approval, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF MAPLEWOOD, MINNESOTA: 1. Such plans and specifications, a copy of which are attached hereto and made a part hereof, are hereby approved and ordered placed on file in the office of the City Engineer. 2. The City Clerk or office of the City Engineer shall prepare and cause to be inserted into the official paper and Finance and Commerce an advertisement for bids upon the making of such improvement under such approved plans and specifications. The advertisement shall be published twice, at least twenty-one days before the date set for bid opening, shall specify the work to be done, shall state that bids will be publicly opened and considered by the council at 10:00 a.m. on the 2nd day of March, 2016, at city hall and that no bids shall be considered unless sealed and filed with the clerk and accompanied by a certified check or bid bond, payable to the City of Maplewood, Minnesota for five percent of the amount of such bid. 3. The City Clerk and City Engineer are hereby authorized and instructed to receive, open, and read aloud bids received at the time and place herein noted, and to tabulate the bids received. The council will consider the bids, and the award of a contract, at the regular city council meeting of March 14, 2016. Approved this 8th day of February 2016. J4, Attachment 1 Packet Page Number 182 of 184 RESOLUTION ORDERING PREPARATION OF ASSESSMENT ROLL WHEREAS, the City Clerk and City Engineer will receive bids for the Lakewood-Sterling Area Street Improvements, City Project 15-11, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF MAPLEWOOD, MINNESOTA that the City Clerk and City Engineer shall forthwith calculate the proper amount to be specially assessed for such improvement against every assessable lot, piece or parcel of land abutting on the streets affected, without regard to cash valuation, as provided by law, and they shall file a copy of such proposed assessment in the city office for inspection. FURTHER, the City Clerk shall, upon completion of such proposed assessment notify the City Council thereof. Approved this 8th day of February 2016. J4, Attachment 2 Packet Page Number 183 of 184 J4, Attachment 3 Packet Page Number 184 of 184