HomeMy WebLinkAbout19950605_regularMINUTES
OF THE REGULAR MEETING OF THE
EDINA CITY COUNCIL HELD AT CITY HALL
JUNE 5,1995
ROLLCALL Answering rollcall were Members Kelly, Maetzold, Paulus, Smith and Mayor Richards.
CONSENT AGENDA ITEMS APPROVED Motion was made by Member Kelly and was seconded
by Member Maetzold to adopt the Council Consent Agenda items as presented.
Rollcall:
Ayes: Kelly, Maetzold, Paulus, Smith, Richards
Motion carried.
*MINUTES OF THE REGULAR MEETING OF MAY 15, 1995, APPROVED Motion was made by
Member Kelly and was seconded by Member Maetzold to approve the Minutes of the Regular
Council Meeting of May 15, 1995.
Motion carried on rollcall vote - five ayes.
*LOT DIVISION APPROVED ON LOT 2, BLOCK 3, PARKWOOD KNOLLS 22ND ADDITION AND LOT
5, AUDITOR'S SUBDIVISION NO. 325 (5119 GREEN FARMS ROAD) Motion was made by Member
Kelly and was seconded by Member Maetzold for adoption of the following resolution.
RESOLUTION
WHEREAS, the following described tracts of land constitute two separate parcels:
Lot 2, Block 3, Parkwood Knolls 22nd Addition and
That part of Lot 5 lying South of the North 302.00 feet thereof, Auditor's Subdivision No.
325, Hennepin County, Minnesota, and
WHEREAS, the owners of the above tract of land desire to subdivide said tract into two new
separate parcels described as follows:
PARCEL A:
Lot 2, Block 3, PARKWOOD KNOLLS 22ND ADDITION and that part of Lot 5 lying South of
the North 302.00 feet thereof, Auditor's Subdivision No. 325, Hennepin County, Minnesota,
which lies westerly of the following described line;
Beginning at a point on the South line of said Lot 5, distant 40.00 feet easterly, as
measured along said South line, from the southwest corner of said Lot 5: thence
northerly to a point on the South line of the North 302.00 feet of said Lot 5, distant
15.00 feet easterly, as measured along said south line of the North 302.00 feet, from
its intersection with the west line of said Lot 5,
PARCEL B:
That part of Lot 5 lying South of the North 302.00 feet thereof, Auditor's Subdivision No.
325, Hennepin County, Minnesota, which lies easterly of the following described line;
Beginning at a point on the South line of said Lot 5, distant 50.00 feet easterly, as
measured along said South line, from the southwest corner of said Lot 5: thence
northerly to a point on the South line of said North 302.00 feet of said Lot 5, distant
15.00 feet easterly, as measured along said South line of the North 302.00 feet, from
its intersection with the West line of said Lot 5.
WHEREAS, it has been determined that compliance with the Subdivision and Zoning Regulations
of the City of Edina will create an unnecessary hardship and said Parcels as separate tracts of
land do not interfere with the purposes of the Subdivision and Zoning Regulations as contained
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MinuteslEdina City CouncillJune 5,1995
in the City of Edina Code Sections 810 and 850.
NOW, THEREFORE, it is hereby resolved by the City Council of the City of Edina that the
conveyance and ownership of said Parcels as separate tracts of land is hereby approved and the
requirements and provisions of Code Section 810 and Code Section 850 are hereby waived to
allow said division and conveyance thereof as separate tracts of land but are not waived for any
other purpose or as to any other provision thereof, and subject, however, to the provision that no
further subdivision be made of said Parcels unless made in compliance with the pertinent
ordinances of the City of Edina or with the prior approval of this Council as may be provided for
by those ordinances.
ADOPTED this 5th day of June, 1995.
Motion carried on rollcall vote - five ayes. !.
*HEARING DATE SET FOR PLANNING MATTER Motion was made by Member Kelly and was
seconded by Member Maetzold setting June 19,1995, as hearing date for the following planning
matter:
I) Motion carried on rollcall vote - five ayes.
Preliminary Plat Approval - Mirror Oaks, 5000 Blake Road
PUBLIC HEARING HELD ON STREET IMPROVEMENT BA-308 (LAKEVIEW DRIVE); PROJECT
ORDERED Affidavits of Notice were presented, approved and ordered placed on file.
Presentation bv Enclineer
Engineer Hoffman informed the Council that Lakeview Drive from Wooddale to Concord has existing
curb and gutter and an asphalt street. Neighbors were informed that seal coating is scheduled for this
year along with some minor storm sewer piping work. Staff suggested this would be a good time to
upgrade the street as some work would be occurring and this would be the most cost effective time to
do a replacement project.
A petition was submitted with signatures from twelve of the twenty-two neighbors requesting a curb and
gutter replacement with an asphalt overlay for the street. Estimated cost of the project would be
$47,265.86, and assessed on a per-lineal front foot basis estimated at $21.13 per assessable foot over
a ten year period. Construction on the project would be completed in 1995.
Engineer Hoffman said, to date, staff has received one comment in support of the project. Staff would
recommend authorization of the project.
Resident comments
David Parrin. 4606 Lakeview Drive. said he and his wife initiated the petition for two reasons, 1)
economically the cost would be less than a stand-alone project and 2) the street is in need of repair,
Mary Alice Sadler, 4505 Lakeview Drive, voiced concern that she was not asked for a signature on the
petition and learned of the proposed project when she received the Notice of Public Hearing.
Mayor Richards answered Ms. Sadler that the City does not initiate petitions. Upon receipt of a petition
from residents, the City notifies all the neighbors in the surrounding area.
Susan Covnick, 4500 Lakeview Drive and 4708 Lzkeview Drive, voiced support of the proposed project.
Water ponds at the 4500 Lakeview address and inquired whether this would be corrected with
installation of the curb and gutter.
Engineer Hoffman responded that part of the project would be to improve the storm sewer on the block
and the curb and gutter. I-
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MinutesIEdina Citv CouncilNune 5, 1995
Ms. Covnick asked since 4500 Lakeview Drive is a corner lot, would the whole corner be assessed.
Engineer Hoffman said no she would not.
Mayor Richards called for further public comment. No further comments or concern were heard.
Council Comment/Action
Mayor Richards asked when the project would be completed. Engineer Hoffman answered that the
project would be done in August or September, 1995.
Member Paulus introduced the following resolution and moved approval:
BE IT RESOLVED by the Council of the City of Edina, Minnesota, that this Council heretofore
caused notice of hearing to be duly published and mailed to owners of each parcel within the area
proposed to be assessed on the following proposed improvement:
RESOLUTION ORDERING STREET IMPROVEMENT NO. BA-308
IMPROVEMENT NO. BA-308 - STREET IMPROVEMENT WITH CONCRETE CURB AND
GUTTER
and at the hearing held at the time and place specified in said notice, the Council has duly
considered the views of all persons interested, and being fully advised of the pertinent facts, does
hereby determine to proceed with the construction of said improvement including all proceedings
which may be necessary in eminent domain for the acquisition of necessary easements and rights
for construction and maintenance of such improvement; that said improvement is hereby
designated and shall be referred to in all subsequent proceedings as:
STREET IMPROVEMENT WITH CONCRETE CURB AND GUTTER IMPROVEMENT NO. BA-
308
and the area to be specially assessed for a portion of the cost of the proposed improvement shall
include:
Lots 7 thru 11, Block 4; Lots 7 thru 12, Block 5; Lots I thru 6, Block 6; and Lots I thru 5,
Block 7; Golf Terrace Heights.
Motion was seconded by Member Maetzold.
Rollcall:
Ayes: Kelly, Maetzold, Paulus, Smith, Richards
Motion carried.
PUBLIC HEARING HELD; PROJECT ORDERED ON WATERMAIN IMPROVEMENT WM-317A WEST
FULLER STREET AND WEST 55TH STREET) Affidavits of Notice were presented, approved and
ordered placed on file.
Presentation by Engineer
Engineer Hoffman explained that the City of Edina received a petition for watermain installation on West
Fuller Street and West 55th Street, east of France Avenue. A public hearing notice was sent out to all
properties in the general area who did not have water available to their property. He presented a graph
depicting the location of the petitioners and results of the survey sheets that were returned to the
Engineering Department. Twenty-one surveys were returned and nineteen favored installation.
Engineer Hoffman stated that the reason for the public hearing is to provide public water availability to
each of the fifty-seven sites that currently do not have water available. The survey further depicts that
residents desiring water service are evenly split between Fuller and West 55th Street. The project would
provide water to each lot but immediate hook-up would not be required. The total cost of the project
would be approximately $189,046.99 or an estimated cost per lot of $3,363.85. The cost would be
assessed to each lot owner over a ten year period of time.
Engineer Hoffman advised that two property owners submitted written comments to the Engineering
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MinutedEdina City CouncilNune 5,1995
Department, in opposition to the project.
The project would require removal of one-half of the street for the watermain to be installed later in 1995.
Engineer Hoffman stated the neighborhood survey inquired if residents would favor a complete
reconsttuction of the street in connection with the watermain project. Survey results indicated that most
would not agree with costs for additional paving at this time.
Presentation by Citv Sanitarian
Sanitarian Velde said main concerns with installing private wells on West Fuller and West 55th Street
are:
1.
2.
3.
4.
5.
6.
Wells must be 50 feet from a buried sewer
Wells must be 15 feet from utility lines
Wells must be 5 feet from property lines
Front yard is virtually eliminated because of sewer setbacks
A buried sewer line under a home with sewer to the back of the house restricts
the potential for locating a well in back yard
Legal well location area could be as small as 5 feet wide by 44 to 98 feet long
which could severely restrict well locations
Sanitarian Velde told that in order to reach a good water supply, two confining layers have to be
penetrated. When a confining layer is penetrated, the well must be grouted to seal off the confining layer
to prevent contamination coming from the upper layers into the lower area which drives the cost to
approximately $7,500.00 just to locate a well on your property if you can legally locate one. If a variance
would be required from the 50 foot setback on the sewer line, the cost could increase an additional
$2,000.00 to $3,000.00.
Member Paulus asked if a resident chose to hook-up to City water when the watermain was installed,
if that hook-up charge could be added to the ten year assessment. Engineer Hoffman said the
assessment cost would be on the watermain installation process, including a small stub to the property
line called a curb box. If the resident chose to connect to the watermain it would be their responsibility
to contract with a plumber and pay for that connection. Member Paulus asked what the cost of this
could be. Engineer Hoffman said the cost could be approximately $1,000.00 to $1,500.00. An additional
cost within the process could be the cost to cap their well at approximately $500.00 to $1,000.00.
Member Maetzold inquired what the service life of a well is. Engineer Hoffman said it depends on use
and is very difficult to predict. Member Maetzold asked if there is any way that the hook-up could be
included in with the assessment. Engineer Hoffman said public improvements are assessable but he
does not believe, under law that private property improvements are.
Member Kelly asked if the assessment period could be extended for a twenty year period. Engineer
Hoffman said this was done in 1978 in Morningside when curb, gutter and streets were improved. He
believes that residents surveyed want the option to hook-up if it becomes a necessity.
Resident Comments
Tom Uhlemann, 3504 W. 55th Street, voiced support with the proposed project, principally because of:
1) concern with the uncertainty of the water supply with a private well - he has experienced
inconvenience of a power outage or a pump failure
the potential for ground water contamination with resultant health problems - recently a neighbor
drilled for new well and his well water was undrinkable
constraints imposed on new well placement, causing significant cost increase and
the potential for legal issues for the City of Edina - has a threat of lawsuit to the City been
considered because of well contamination.
recently installed a new pump on their well, or drilled a new well - the watermain would be an
2)
3)
4)
Some residents on W. 55th and Fuller do not support proposed project. They have
A)
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MinutedEdina City CouncillJune 5, 1995
added insurance
B) new residents in neighborhood - do not understand why City water is necessary
C) Senior Citizens on fixed incomes - assessment expense and hook-up fees is significant
Todd Nelson, 3601 West 55th Street, stated his support of the project and called it a sensible move.
The assessment will be on a per lot basis. Since he has two lots with one home, he inquired whether
he would be assessed for both lots. Engineer Hoffman answered that most lots in the area are lot splits
so the assessment has been figured on a per house basis. Mr. Nelson further asked if the assessment
would be interest free. Engineer Hoffman said currently interest on the assessment is at 8 percent on
the unpaid balance.
Lisa Larson, who has Power of Attorney for her hospitalized father, Edward Monteleone, 3604 W. 55th
Street said they have wanted City water for 27 years. Well water is too acidic tasting and is undrinkable.
Her family has carted bottled water in for drinking for years. Four years ago they had their well serviced
and were told they would not be able to repair the well again, that a new well would be necessary. She
said please give us City water.
Bob Haven, 3800 West 55th Street, said they are not opposed to the watermain but they have had City
water since 1989 when Ewing Circle got City water. They are home No. 57, which was not put on the
list. He asked exemption from all assessments require their well has been capped and their property
will not benefit. It would be a waste of time and money. He would also not support the repaving the
street.
Engineer Hoffman informed Council that a letter had been written to Mr. Haven explaining the process
when the previous owner at 3800 West 55th Street connected to the watermain on Ewing Circle. When
the previous owner connected to the main, the City assessed the cost to connect to the watermain and
a credit would be given on future watermain assessments. Mr. Haven has been asked to write a letter
of explanation and the decision whether to assess the lot at 3800 West 55th Street rests with the
Council.
Dick Day, 3511 W. 55th Street, said he has lived in his home for 50 years and no one from the City has
asked his thoughts on City water. Having City water would be a fine improvement. Mr. Day gave history
of the area saying that, six homes in the area are owned by second and third generation families and
the Day family has lived on Minnehaha Creek for 7 generations. He questioned why flags and markings
were placed on the boulevard if the project has not been ordered. Mr. Day likes the rural aspect of his
area and is not sure if he would like curbs.
Engineer Hoffman said the markings were initiated by one call to Gopher 1 and do not include curbs but
are the result of utilities marking their lines on the boulevards.
Mayor Richards reminded the public that in 1977 it was assumed the watermain project would be
approved, it was not. He said public business is conducted in public and the final decision lies with the
Council.
Robert Franson, 3709 West Fuller Street, has lived in the area 33 years. His home was built in 1941,
and has had two wells. Seventeen years ago when the second well was installed, the cost was
$3,000.00. City water is well water and could as easily be contaminated as a private well. He believed
it is a personal right to maintain personal water. In 1977, his water tested better than City water. West
Fuller Street wells are on bedrock and West 55th and 54th Street are on sand. Today, when a four inch
well is required, a twelve inch hole is dug and concrete is pumped in to seal the aquifer from
contamination so costs have to go up. He would prefer using his own well.
John Hesch, 3505 West Fuller Street, asked if the Council is aware that the survey stated the Total Gas
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Minutes/Edina Citv CouncillJune 5, 1995
Station has ground water contamination now at 55 feet. He believes wells in the City are a problem and
would be in favor of the project going forirvard.
Tom Cain, 3505 W. 55th Street asked what the monthly cost would be for water. He is a new resident
to the area. His grandfather built the home in 1951 and it is the original well to the best of his
knowledge. How long the well will last is unknown but was one reason he moved to the area was
because of the private well. He does not know where his well water comes from but talk was a few
years ago northem lakes would be diverted to provide water for southem cities during the drought. He
asked where Edina water comes from. Mr. Cain asked, if he chooses to hook-up to the watermain, must
the well be capped or could he use both.
Engineer Hoffman said water billing is based upon usage. Edina water comes from one of two places,
the Jordan Aquifer at a depth of 500 feet and Mount Simon Hinckley at 1000 feet. The State has
required cities to do a ground water protection plan within a year, which deals with where well heads are
located and protects them from contamination. He further answered Mr. Cain that hooking up to the
watermain would be a personal choice and some people use their wells for watering their lawns.
Susan Covnick, 4708 Lakeview Drive, and family property at 3812 W. 55th Street, said water connection
to an available watermain is offen a necessity for a property mortgage to be transferred to a new owner.
Mary Lou Christensen, 3600 West Fuller Street, said in general she would support the project. The letter
intimated two things; I) some wells in the area had failed the water tests, she asked how many and 2)
that property values could be decreased because of the wells on their property, she asked if an assessor
had made this verification.
Engineer Hoffman stated that the letter said that the City receives calls about well failure not well quality.
Further, the City is required to do more stringent testing than private owners. It seems being hooked
up to City water does seem to affect the sale of property.
I
Bill Hurley, 3701 West Fuller Street, said his property has had two wells and the water is 99 percent
pure, therefore, he does not need the watermain. He asked that placement of the fire hydrant not be
on his comer because traffic cuts across his comer often.
Richard Pehrson, 3516 West Fuller Street, noted that his well is failing. He was told by a well driller and
the State Inspector that, I) a State permit must be acquired to drill for another well, 2) sewer piping
under his basement floor would need to be taken up and new sewer line run, 3) estimated cost of this
would be $15,000.00, and 4) the cost for a new well would be approximately $7,500.00 - $8,500.00. To
do this, he would have to refinance his home, and at age 55 this would be a real hardship. His 80 foot
lot is considered a double and there should be room to drill a well. Mr. Pehrson said he has connected
a garden hose to his neighbors well which will only be good until it freezes. At present, the nearest
hydrant is two blocks away and said that is not adequate fire protection. He offered placement of the
hydrant in his front yard.
Dan Utter, 3500 West Fuller Street, said they did not respond to the survey. Based upon discussion at
this meeting, they would concur that the project should go forward and they would be in favor of the
street paving also.
Mike Grein, 3608 West 55th Street, voiced support for installation of the watermain. he asked 1) is
anything being done about the contamination from the gas stations on 54th and France why can't he get
an answer at City Hall about them, and 2) during the winter, what makes the creek run yellow. I
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MinutedEdina City CouncillJune 5, 1995
Sanitarian Velde said there is a known release of petroleum projects at 54th and France. Pumping is
being done 24 hours per day for treatment. There is a galvanized shed at the Total Gas Station site
where treated water is being released into Minnehaha Creek after testing alright. The plume of
contamination at that site has been contained and has shrunk since the pumping began about three
years ago and the process is being monitored totally by the Minnesota Pollution Control Agency.
Engineer Hoffman said creek water would be yellow in the winter because filters are backwashed twice
monthly to remove iron from the water. This is done at a plant near the old Edina High School site and
re-enters the creek at 58th Street. This is done under compliance with the State Board of Health.
Scott Fleming, 3808 West 55th Street, commented if he wanted City water, he could hook up across the
street. His wish for this process is that neighbors not be divided. During a major remodel of his home
a few years ago, he inquired what the cost would be to hook-up to City water and was told approximately
$3,000.00. When he asked plumbers for the approximate cost to bring the water to his home from the
street, it was $3,000.00 - $5,000.00. He suggested consideration being given to include the plumbing
charge in the assessment as many residents were on fixed incomes and the expense would be hard to
handle.
Engineer Hoffman clarified that Mr. Fleming's hook-up would be higher because his start point for the
watermain was across the street.
Jonathan Ness, 3801 West 55th Street, said he selfishly does not want the watermain. He is a 2 112
year resident and has his well inspected annually. His home is close enough to hook up to City water
but he has not done so. He sympathizes with his neighbors but feels pressured into agreeing with
something that will not benefit him and will only increase his property tax.
John Skovbroten, 3705 West 55th Street, an I I year resident gave strong support of the project and is
ready to quit living with all the fear and uncertainty. He asked when the street repaving is done if
drainage issues on the south side of the street will be addressed. Every street resurface raises the
street and during heavy rains since his driveway is lower, rains are diverted into his basement.
Engineer Hoffman answered if the project is ordered and during that installation, earth would be removed
and lowered thereby creating a natural swale.
Ellen Thomas, 3509 West 55th Street, said when she bought the home 3 112 years ago, the well was
a definite drawback. Their water has a lot of rust and stated she is a proponent of City water. She
believes property values will increase with City water access.
Robert Madsen, 3525 West Fuller, said his basement stays dry but his driveway fills with water during
heavy rains. He agrees that the project should go forward, but would like consideration given to raising
the south side of Fuller when the street is resurfaced.
Mayor Richards asked for further public comment and reminded the public that if the project is ordered,
assessments would be set at another meeting.
Council Comments/Action
Member Smith believed having safe water is important for the neighborhood. He supported the project
going forward.
Member Maetzold, noted that well failures do occur at inconvenient times and the cost of replacing a well
is quickly rising. State controls are getting more and more strict on placement of wells and the
maintenance of water quality more stringent. For those reasons he would support the project.
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Minutes/Edina City CouncilNune 5,1995
Mayor Richards asked if 1) serious consideration could be given to a 20 year assessment for the proposed project and 2) whether an economy of scale could be adopted during the bidding process to
benefit property owners with their hook-up charges.
Member Paulus said as a former resident of the neighborhood she applauded the residents with their
handling of the well issue. The job of the Council is to vote for the good of residents today and in the
future. It is important for the project to be completed but equally as important that residents know that
hooking up to the watermain is their decision.
Member Kelly said she previously asked if the project could be assessed for a 20 year period and asked
if there is data available on this.
No further resident or Council comment was received.
Member Smith moved authorization of the project and adoption of the following resolution:
RESOLUTION
The City Clerk reported that a petition for an improvement consisting of Watermain Improvements
as follows:
Lots 9 thru 16, Blk 1, Lots 8 thru 14, Blk 2, and Lot 12 & W 412 of Lot 13, Blk 3, lvandale Park Near
Lake Harriet; Lots I thru 13, West Fuller Street Addition to Minneapolis; E 60' of W 513' of N 112
of S 112 of N 112 of NW 114 of NW 114 ex. st., E 60' of W 453' of N 112 of S 112 of N 112 of NW 114 of
NW 114 ex. st., E 60' of W 393' of N 112 of S 112 of N 112 of NW 114 of NW 114 ex. st., E 60' of W 333'
of N 112 of S 112 of N 112 of NW 114 of NW 114, Unplatted; Lots 4 thru 5, Blk I, Lots I thru 5, Blk 2,
Lots I thru 5, Blk 3, Lots I thru 3, Blk 4, Lot I incl. adj. alley vac. & incl. 112 adj. st. vac. Lot 2 incl.
adj. alley vac., Lot 3 incl. adj. alley vac., Lot 4, E 112 of N 144' of Lot 5, Blk 6, Lot I incl. adj. 112 of
vac. st., Lot 2 &that part of Lot A lying betw the E & W lines of Lot 2 extended incl. all of adj. vac.
st., Lot 3 incl. adj. 112 of vac. st., Lot 4 incl. adj. 112 of vac. st., Lot 5 &that part of Lot A lying W
of Sly extension of E line of said Lot 5 incl. adj. 112 of Drew Av. S vac. & incl. adj. part of unnamed
st. vac., Blk 7, That part of Lot I lying E of the W 5' thof and that part of Lot A lying E of the E line
of the W 5' of said Lot I extended across Lot A incl. adj. vac. st., Lot 2 & W 5' of Lot I and that part
of Lot A lying betw the W line of Lot 2 extended across Lot A and the E line of the W 5' of Lot I
extended across Lot A incl. adj. vac. st., Lot 3 &that part of Lot A lying betw E & W lines of said
Lot 3 extended across Lot A incl. adj. 112 of vac. st., Blk 8, Woodbury Park Near Harriet; That part
of Lots I & 2 lying Sly of line running from a pt on the E line of Lot I dis 8' Nly of the SE cor of said
Lot 1 to a pt on W line of Lot 2 dis 13' SEly from the most NWly cor of said Lot 2 & that part of Lots
2 & 3 lying Ely of a line running from a pt on the NWly line of said Lot 3 dis 10' SWly meas along
said NWly line from the most Nly cor of said Lot 3 to a pt on the Sly line of said Lot 2 dis 5' NEly
meas along said Sly line from the SW cor of said Lot 2 also that part of the W 30' of Lot D White
investment Company's Hidden Valley lying Sly of the SEly extension of the Sly line of Lot 1, Blk
1, Lorraine Court, That part of said Lots 2 & 3 lying Wly of a line running from a pt on the NWly
line of said Lot 3 dis 10' SWly from the most Nly cor of said Lot 3 to a pt on the Sly line of said Lot
2 dis 5' NEly from the SW cor of said Lot 2, Block 1, Lorraine Court, S 45' of Lots 13 & 14, also S
45' of W 23' of Lot 12, Blk 2, White Investment Company's Hidden Valley &that part of Lots I &
2, Blk I, Lorraine Court lying Nly of a line running from a pt in E line of Lot I dis 8' N from SE cor
thof to a pt in Wly line of Lot 2 dis 13' Sly from NWly cor thof, Lorraine Court, has been received
in her office on May 4,1995, signed by owners of real property abutting on said West Fuller Street,
West 55th Street and Beard Court, East of France Avenue. Said petition also requested the
Council to assess the entire cost against the property of such owners.
BE IT RESOLVED by the City Council of the City of Edina, Minnesota as follows:
1. It is hereby found and determined that a petition has been filed requesting the Council to
RESOLUTION ORDERING WATERMAIN IMPROVEMENT WM317A
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MinutedEdina City CouncillJune 5. 1995
construct a watermain improvement on
Lots 9 thru 16, Blk I, Lots 8 thru 14, Blk 2, and Lot 12 & W 1/2 of Lot 13, Blk 3, lvandale Park Near
Lake Harriet; Lots I thru 13, West Fuller Street Addition to Minneapolis; E 60' of W 513' of N 112
of S I12 of N 112 of NW 114 of NW 114 ex. st., E 60' of W 453' of N 1/2 of S I12 of N 1/2 of NW 114 of
NW 1/4 ex. st., E 60' of W 393' of N 1/2 of S 1/2 of N 1/2 of NW I14 of NW 114 ex. st., E 60' of W 333'
of N I12 of S 1/2 of N 1/2 of NW I14 of NW 1/4, Unplatted; Lots I thru 5, Blk I, Lots I thru 5, Blk 2,
Lots I thru 5, Blk 3, Lots I thru 3, Blk 4, Lot 1 incl. adj. alley vac. & incl. 1/2 adj. st. vac. Lot 2 incl.
adj. alley vac., Lot 3 incl. adj. alley vac., Lot 4, E 112 of N 144' of Lot 5, Blk 6, Lot 1 incl. adj. I12 of
vac. st., Lot 2 &that part of Lot A lying betw the E & W lines of Lot 2 extended incl. all of adj. vac.
st., Lot 3 incl. adj. 112 of vac. st., Lot 4 incl. adj. I12 of vac. st., Lot 5 &that part of Lot A lying W
of Sly extension of E line of said Lot 5 incl. adj. 112 of Drew Av. S vac. & incl. adj. part of unnamed
st. vac., Blk 7, That part of Lot 1 lying E of the W 5' thof and that part of Lot A lying E of the E line
of the W 5' of said Lot 1 extended across Lot A incl. adj. vac. st., Lot 2 & W 5' of Lot I and that part
of Lot A lying betw the W line of Lot 2 extended across Lot A and the E line of the W 5' of Lot 1
extended across Lot A incl. adj. vac. st., Lot 3 &that part of Lot A lying betw E & W lines of said
Lot 3 extended across Lot A incl. adj. 112 of vac. st., Blk 8, Woodbury Park Near Harriet; That part
of Lots 1 & 2 lying Sly of line running from a pt on the E line of Lot 1 dis 8' Nly of the SE cor of said
Lot I to a pt on W line of Lot 2 dis 13' SEly from the most NWly cor of said Lot 2 & that part of Lots
2 & 3 lying Ely of a line running from a pt on the NWly line of said Lot 3 dis IO' SWly meas along
said NWly line from the most Nly cor of said Lot 3 to a pt on the Sly line of said Lot 2 dis 5' NEly
meas along said Sly line from the SW cor of said Lot 2 also that part of the W 30' of Lot D White
Investment Company's Hidden Valley lying Sly of the SEly extension of the Sly line of Lot I, Blk
I, Lorraine Court, That part of said Lots 2 & 3 lying Wly of a line running from a pt on the NWly
line of said Lot 3 dis IO' SWly from the most Nly cor of said Lot 3 to a pt on the Sly line of said Lot
2 dis 5' NEly from the SW cor of said Lot 2, Block I, Lorraine Court, S 45' of Lots 13 & 14, also S
45' of W 23' of Lot 12, Blk 2, White Investment Company's Hidden Valley &that part of Lots I &
2, Blk I, Lorraine Court lying Nly of a line running from a pt in E line of Lot I dis 8' N from SE cor
thof to a pt in Wly line of Lot 2 dis 13' Sly from NWly cor thof, Lorraine Court, has been received
in her office on May 4,1995, signed by owners of real property abutting on said West Fuller Street,
West 55th Street and Beard Court, East of France Avenue.
2. The making of said improvement in accordance with said petition is hereby ordered pursuant
to Minnesota Statutes, Section 429,031 (3), (Session Laws of 1961, Chapter 525, Section 2). Said
improvement is hereby designated and shall be referred to in all subsequent proceedings as
(WATERMAIN IMPROVEMENT NO. 317A). The entire cost of said improvement is hereby ordered
to be assessed against the properties abutting on said West Fuller Street, West 55th Street and
Beard Court, East of France Avenue where said improvement is located. Motion was seconded by
Member Kelly.
Rollcall:
Ayes: Kelly, Maetzold, Paulus, Smith, Richards
Resolution adopted.
PUBLIC HEARING HELD; RESOLUTION ADOPTED ON REQUEST FOR SALE AND TRANSFER OF
CABLE TELEVISION SYSTEM OWNERSHIP INTEREST OPERATED BY KBL CABLESYSTEMS OF
THE SOUTHWEST, INC., DBAlPARAGON CABLE Member Smith reported that the matter of the
request for sale and transfer of the cable television system ownership interest operated by KBL
Cablesystems of the Southwest, Inc., dba/Paragon Cable was continued from April 17, 1995. The City
of Edina is one of five participants in the franchise known as Southwest Suburban Cable Commission
("SWSCC"). The other four participants are Hopkins, Minnetonka, Eden Prairie and Richfield. SWSCC
originally granted a franchise to Rogers Cable and was subsequently purchased by Paragon (owned by
Houston Industries). He presented an analysis and recommendation report to assist the cities in
deciding whether to waive their right of first refusal on the sale and whether to approve the proposed
Page 9
Minutes/Edina Citv CouncillJune 5,1995
transfer of ownership. The cities must evaluate the legal, technical and financial qualifications of the
transferee as well as the impact of the transfer on subscribers and current franchise obligations.
Minnesota law and the applicable franchise ordinances have 30 days to decide whether to approve the
transfer. The Cities have the option of exercising their respective rights to purchase the system.
In order to determine the legal, technical, and financial qualifications of Time Warner, the following
documents were reviewed by Adrian Herbst of the Frederickson, Byron Law Firm: respective franchise
ordinances; Paragon's compliance with the current franchises; Paragon's franchise renewal process;
the status of rate regulation and the information provided in Form 394 in response to information
requests.
Member Smith informed that information gathered regarding the current SWSCC franchises held by
Paragon indicate they have complied or substantially complied with the franchises. However, the cities
have not conducted a complete audit of Paragon's compliance with the respective franchises. It was
recommended that each city require Time Wamer to sign an Acceptance Agreement stating that the city
has not waived its right to demand compliance with the current franchise if non-compliance is uncovered
in the future.
It was noted during the review of the SWSCC franchise documents that the Relief Ordinances adopted
by the cities in 1991 and accepted by Paragon will terminate, at the cities' option, with the sale or
transfer. Time Wamer indicated it does not believe the control transfer between Houston Industries and
itself would trigger an automatic termination provision in the Relief Ordinance. The SWSCC does
believe this transaction does trigger the termination provision.
SWSCC recommends extending the duration of the Relief Ordinances until December 31 , 1995, to allow
discussion of important issues of whether to terminate the Relief Ordinance. At that time, cities will
determine whether to 1) terminate those documents and return to the original terms of the franchise
ordinance and proposal; 2) enter into different relief extension agreements; or 3) allow continuance of
the Relief Ordinances.
I
Member Smith said the SWSCC after examining the legal, technical and financial qualification of Time
Wamer, indicated Time Warner has the legal, technical and financial qualifications to operate the cable
system.
The cities have indicated they do not want to exercise the right of first refusal and purchase the
respective cable systems and would recommend the cities waive the right regarding this transaction
also. They expressly reserve the right to exercise this right of first refusal in the event of future transfers.
It is further recommended that the cities require a signed Acceptance Agreement from Time Warner
which would include a guaranty of the performance of KBL Cablesystems of the Southwest, Inc.,
dba/Paragon Cable.
A copy of the transfer of ownership is on file in the office of the City Clerk.
~ Wayne Knighton of Paragon Cable and Adrian Herbst of Fredrickson Byron Law Firm were present to
answer questions or concerns.
Council Comments
Mayor Richards inquired when does the franchise expire. Member Smith responded in the year 2000.
Mayor Richards asked if the franchise would require extending. Member Smith said not at this time.
Mayor Richards commented that cable is not user friendly. He has received many comments from
residents voicing their discontent with cable and their wish for an alternative system.
Member Smith explained one duty of the SWSCC is to monitor resident comments relative to the service I
Page IO
Minutes/Edina City CounciVJune 5,1995
they receive. Comments are now monitored at a city level where previously they were dealt with by the
City Managers and then communicated to cable.
Mayor Richards called for public comment or concern. No public comment or concerns were received.
Member Smith introduced the following resolution and moved its approval:
RESOLUTION
APPROVING THE TRANSFER OF CONTROL OF KBL CABLESYSTEMS OF THE
OF THE SOUTHWEST, INC. D/B/A PARAGON CABLE
WHEREAS, on or about February 21,1995, the Southwest Suburban Cable Commission of which
the City of Edina is a member, received a letter and For, 394 from KBL Cablesystems of the
Southwest, Inc. d/b/a Paragon Cable, the current franchisee of the cable system in Edina, stating
that Houston Industries Incorporated which wholly owns KBLCOM, Inc. which holds KBL Cable,
Inc. which holds KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable, proposes to
transfer control of KBLCOM, Inc. to Time Warner Inc. ("Time Warner"); and
WHEREAS, the federal Cable Communications Policy Act of 1984, as amended by the Cable
Television Consumer Protection and Competition Act of 1992, states that:
a cable operator cannot transfer a cable system unless it has held the system at least
thirty-six (36) months unless the transfer meets a stated exception; and
if a cable transfer or sale requires franchising authority approval, the franchising authority
has 120 days from receipt of the Form 394 to approve the sale; and
WHEREAS, the City of Edina, with the assistance of the Southwest Suburban Cable Commission
has determined that the cable system was held for at least thirty-six (36) months; and
WHEREAS, the federal Cable Communications Policy Act of 1984, as amended by the Cable
Television Consumer Protection and Competition Act of 1992 allows the City to review the legal,
technical and financial qualifications of the transferee; and
WHEREAS, the Minnesota Cable Communications Act and Article XII, Section I, Subsection B of
the cable franchise ordinance for the City of Edina state that a franchising authority which
receives a written request for approval of a sale or transfer shall answer in writing within thirty
(30) days of the request and shall state whether it approves the request or whether it determines
that a public hearing is necessary because the sale or transfer may adversely affect the
subscribers; and
WHEREAS, the Minnesota Cable Communications Act and the cable franchise ordinance for the
City of Edina state that if a public hearing is deemed necessary, such hearing shall be conducted
within thirty (30) days of such determination and notice of such a hearing shall be given fourteen
(14) days before such hearing by publishing notice once in a newspaper of general circulation in
the area served by the franchise; and
WHEREAS, the City of Edina passed a Resolution on March 20, 1995, stating that it is examining
the effect of the proposed transfer on its residents and a public hearing is necessary; and
WHEREAS, the City of Edina gave appropriate notice and held such a public hearing on April 17,
1995, and concluded such hearing on June 5,1995, and received no express opposition to the
transfer; and
WHEREAS, Article XII, Section 1, Subsection G of the cable franchise ordinance for the City of
Edina states that the City of Edina may inquire into the qualifications of the prospective controlling
party, and the Grantee shall assist the City in such an inquiry and pay all costs incurred by the
City in so inquiring, including City staff time at a value determined by the City; and
WHEREAS, Time Warner, KBLCOM, Inc. and the City disagree regarding the responsibility for
reimbursement of consultant's fees for the review of the transfer of ownership; and
WHEREAS, pursuant to Article XI of the cable franchise ordinance for the City of Edina, the
Minnesota Cable Communications Act and the federal Cable Communications Policy Act of 1984,
as amended by the Cable Television Consumer Protection and Competition Act of 1992, the City
I)
2)
Page 11
Minutes/Edina Citv CouncillJune 5,1995
of Edina has up to 120 days to exercise its right to purchase the system at the bona fide purchase
price in the offer; and
WHEREAS, the City of Edina has examined its right to purchase the system; and
WHEREAS, the Southwest Suburban Cable Commission has assisted the City in reviewing the
legal, technical and financial qualifications of the prospective transferee as well as the
franchisee's compliance with the current franchise, and has provided a recommendation
regarding the approval of the proposed transfer of ownership; and
WHEREAS, during the review of the legal, technical and financial qualifications of Time Warner
and KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable's current compliance with the
franchise ordinance, the Southwest Suburban Cable Commission noted that the City's Relief
Ordinance No. 1122 will expire, at the City's option, with the proposed transfer or sale of the cable
system; and
WHEREAS, Time Warner has indicated that it does not believe that the transfer of control of KBL
Cablesystems of the Southwest, Inc. d/b/a Paragon Cable to Time Warner constitutes a
transaction which will cause the Relief Ordinance to expire, at the City's option; and
WHEREAS, representatives of Time Warner, Inc. have represented to the Southwest Suburban
Cable Commission that the transfer of control of the cable system will not change previous
representations by representatives of KBL Cablesystems of the Southwest, Inc. d/b/a Paragon
Cable that upon negotiation of an acceptable early renewal they intend to upgrade the channel
capacity:
NOW, THEREFORE, the City of Edina resolves as follows:
I.
2.
3.
4.
5.
6.
The City of Edina acknowledges that it has the right to purchase the cable system pursuant
to Article XI of the cable franchise ordinance for the City of Edina. The City has examined
this right and determined that exercise of the right to purchase, given the nature of the
transaction (which does not change the local grantee and management), is not warranted.
The City will waive this right for this transfer between Houston Industries Incorporated and
Time Warner Inc. The City does not waive this right for any future transfer or sale.
The City, with the assistance of the Southwest Suburban Cable commission, has reviewed
the legal, technical and financial qualifications of Time Warner Inc. to control the
franchisee which operates the cable system and has determined that Time Warner Inc. has
the legal, technical and financial qualifications to operate the system.
The City, with the assistance of the Southwest Suburban Cable Commission, has reviewed
the effect of the proposed transfer on its residents. Based upon the assertions of Time
Warner Inc. that such a transfer will not affect the plans to upgrade the channel capacity
upon negotiation of an acceptable early renewal, the City of Edina has determined that the
proposed transfer will not negatively impact its residents.
The City approves the transfer of control of KBLCOM, from Houston Industries
Incorporated to Time Warner, Inc. as set forth in the Stock Purchase Agreement, under the
franchise, based upon Time Warner Inc.'s execution of the Acceptance Agreement which
is attached hereto as Exhibit I within thirty (30) days of the adoption of this Resolution or
within thirty (30) days after the closing of the transfer of control, whichever is later.
The City, with the assistance of the Southwest Suburban Cable Commission, has reviewed
the Relief Ordinance and KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable's
Acceptance of Ordinance Relief Ordinance dated July 17,1992, and determined that it has
the option to terminate those documents as a result of this transfer. The City will extend
the terms of that Ordinance and Agreement until December 31 , 1995. At that time, the City
will have the right to exercise its right to terminate that Ordinance and Agreement and any
action taken at that time will be retroactive to the date that this Resolution is entered.
The City grants the authority to the Southwest Suburban Cable Commission to evaluate
I
I
Page 12
Minutes/Edina City CounciVJune 5, 1995
the City's legal rights to terminate the relief agreement and the impact of termination of the
Relief Ordinance including its applicability to discussion regarding an early renewal and
a system upgrade to increase channel capacity.
The City grants the authority to the Southwest Suburban Cable Commission the authority
to enter into negotiations with KBL Cablesystems of the Southwest, Inc. d/b/a Paragon
Cable that may lead to an early renewal of the franchise and an upgrade and/or rebuild of
the cable system.
KBLCOM, Inc. and KBL Cable, Inc. must execute a Reaffirmation of their Consent
Agreement and Guaranty of Performance which is attached hereto as Exhibit 2 within thirty
(30) days of the adoption of this Resolution or within thirty (30) days after the closing of
the transfer of control, whichever is later.
9. KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable must execute a
Reaffirmation of Acceptance of a Franchise for a Cable Television System which is
attached hereto as Exhibit 3 within thirty (30) days of the adoption of this Resolution or
within thirty (30) days after the closing of the transfer of control, whichever is later.
The Southwest Suburban Cable Commission, the City, KBLCOM, Inc. and Time Warner
disagree regarding reimbursement of consultant's fees for the review of the transfer of
control. The City accepts the settlement reached by the Southwest Suburban Cable
Commission and KBLCOM, Inc. in which KBLCOM, Inc. will pay fifty (50) percent of the
consultant's fees and the Southwest Suburban Cable Commission will pay fifty (50)
percent.
BE IT FURTHER RESOLVED, that the City Clerk is directed to send a copy of this Resolution to
KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable, Time Warner Inc., KBL Cable, Inc.
and KBLCOM, Inc.
EXHIBIT I
TIME WARNER, INC.
ACCEPTANCE OF CABLE TELEVISION FRANCHISE ORDINANCE AND
CONDITIONS OF A TRANSFER OF CONTROL OF THE CABLE SYSTEM
("ACCEPTANCE AGREEMENT")
THIS ACCEPTANCE AGREEMENT, is made by Time Warner Inc. ("Time Warner"), on June 5,1995.
7.
8.
IO.
Recitals:
1. On or about February 21, 1995, the Cities of the Southwest Suburban Cable Commission
('SWSCC''), Eden Prairie, Edina, Hopkins, Minnetonka and Richfield, received a letter and
Form 394 from KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable, the current
franchisee of the cable system, stating that Houston Industries Incorporated which wholly
owns KBLCOM, Inc. which holds KBL Cable, Inc. which holds KBL Cablesystems of the
Southwest, Inc. d/b/a Paragon Cable, proposes to transfer control of KBLCOM, Inc. to Time
Warner Inc. ("Time Warner").
Time Warner has requested the City's approval of a transfer of control of the cable
franchise, granted by the Ordinance.
The City intends to approve Time Warner's request for a transfer of control of the cable
franchise, subject to Time Warner's acceptance of the conditions as set forth herein and
the Cable Television Franchise Ordinance and any amendments thereto.
The City, with the assistance of the Southwest Suburban Cable Commission, reviewed the
Relief Ordinance which the City enacted on November 18, I991 and KBL Cablesystems of
the Southwest, Inc. d/b/a Paragon Cable agreed to through the Acceptance of Ordinance
No. 1122 which KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable signed on
July 17,1992. The City has stated that it has the option to terminate this Agreement and
Ordinance as a result of this transfer of control. Time Warner has indicated that it does
2.
3.
4.
Page 13
Minutes/Edina City CouncillJune 5,1995
I not believe that the City has the right to terminate the Agreement and Ordinance because
of this transfer of control. The City has stated that it will extend the time in which to
exercise its right to terminate the Relief Ordinance until December 31, 1995, however, any
action taken at that time will be retroactive to the date that the City approved the
Resolution approving the transfer.
Time Warner understands that the transfer of control of the franchise and the approval by
the cities of the Southwest Suburban Cable Commission, is based on requirements under
federal, state and local law. Those requirements have been fulfilled through review by the
SWSCC and recommendations made by it to the cities based on information furnished to
the SWSCC by Time Warner and its representatives. Most of the information which was
relied upon by the SWSCC was furnished pursuant to FCC Form 394.
Time Warner agrees that after the proposed transfer of control the franchise holder will
continue to be bound by the Ordinance and to timely and fully perform all of the duties and
obligations thereunder.
Time Warner agrees that after the proposed transfer of control the franchise holder will
provide to the City and its subscribers all lawful services as required in the Cable
Television Franchise Ordinance.
Time Warner agrees that after the proposed transfer of control the franchise holder will be
subject to the lawful regulatory authority of the City as set forth in the Ordinance as may
be amended from time to time hereafter.
Time Warner agrees that after the proposed transfer of control the franchise holder will
cooperate fully with the City and obtain from any governmental agency all licenses,
permits, and other authority necessary for lawful operation and maintenance of its Cable
Television System (the "System") under the Cable Television Franchise Ordinance.
Time Warner has indicated that it does not believe that the City has the right to purchase
the cable system pursuant to the language set forth in Article XI of the cable franchise
ordinance. Time Warner acknowledges, however, that the City has stated that it will waive
any right for this transaction between Houston Industries Incorporafed and Time Warner.
Time Warner acknowledges that the City has not waived that right for any future transfer
or sale.
Time Warner represents and warrants as follows:
a.
5.
Acceptance:
I.
2.
3.
4.
I 5.
6.
The management, finances and operations of KBL Cablesystems of the Southwest,
Inc. d/b/a Paragon Cable will not negatively change as a result of the change in
control of ownership.
There will not be an adverse impact to subscribers because of the change in
control of ownership.
The change in control of ownership will not alter, delay, or change plans, if any, to
accomplish an upgrade of the cable television system capacity and to work with the
SWSCC during 1995 to negotiate an early renewal. Time Warner is not bound to
agree to an early renewal or agree to upgrade the system as a result of this
representation.
That after this transfer of control is completed KBL Cablesystems of the Southwest,
Inc. d/b/a Paragon Cable will be a corporation duly organized, validly existing, and
in good standing under the laws of the State of Minnesota and will have all rights
and authority necessary to enter into and fully perform all of the duties and
obligations of the Grantee.
That it has taken all action necessary to authorize the execution and delivery of this
Acceptance Agreement and the full performance of all the duties and obligations
of the franchise holder under the Ordinance.
b.
c.
d.
I e.
Page 14
Minutes/Edina Citv CounciVJune 5, I995
f. That after this transfer of control is completed, KBL Cablesystems of the
Southwest, Inc. d/b/a Paragon Cable will have the legal, technical, and financial
ability to operate and maintain the System pursuant to the terms of the Ordinance.
That this Acceptance Agreement is binding on Time Warner and the Franchise
Ordinance is binding on KBL Cablesystems of the Southwest, Inc. d/b/a Paragon
Cable, to the extent not inconsistent with State of Federal law.
Time Warner agrees that all representations, warranties, and agreements contained herein
and in the Ordinance shall survive the execution of this Acceptance Agreement and shall
be binding upon Time Warner's permitted successors and assigns.
Notwithstanding anything to the contrary, the City and Time Warner reserve all rights
under federal, state, and local law.
This Acceptance Agreement shall be effective only upon the closing of the transaction
referred to in Paragraph 1 of the Recitals transferring control of KBLCOM, Inc. to Time
Warner, Inc.
g.
7.
8.
9.
EXHIBIT 2
KBLCOM, INC. AND KBL CABLE, INC.
REAFFIRMATION OF CONSENT AGREEMENT AND GUARANTY OF
PERFORMANCE REGARDING THE CABLE TELEVISION
FRANCHISE ORDINANCE AND CONDITIONS OF A
TRANSFER OF CONTROL OF THE CABLE SYSTEM
("REAFFIRMATION OF CONSENT AND GUARANTY")
THIS REAFFIRMATION OF CONSENT AND GUARANTY IS MADE BY KBLCOM, INC., AND
KBL CABLE, INC. ON JUNE 5,1995.
On or about February 21,1995, the Cities of the Southwest Suburban Cable Commission
("SWSCC'), Eden Prairie, Edina, Hopkins, Minnetonka and Richfield, received a letter and
Form 394 from KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable, the current
franchisee of the cable stating that Houston Industries Incorporated which wholly owns
KBLCOM, Inc., which holds KBL Cable,.Inc. which holds KBL Cablesystems of the
Southwest, Inc. d/b/a Paragon Cable, proposes to transfer control of KBLCOM, Inc. to Time
Warner, Inc. ("Time Warner").
Time Warner has requested the City's approval of a transfer of control of the cable
franchise which is granted by the Ordinance.
The City intends to approve Time Warner's request for a transfer of control of the cable
franchise, subject to Time Warner's acceptance of the conditions set forth in its
Acceptance Agreement and the Cable Television Franchise Ordinance and any
amendments thereto. As part of its approval, the City requests that KBLCOM, Inc. and KBL
Cable, Inc. provide a reaffirmation of the Consent Agreement and Guaranty of Performance
which they entered in 1988.
KBLCOM, Inc. and KBL Cable, Inc. understand that the City's approval of the transfer of
control of the franchise is based on requirement sunder federal, state and local law. Those
requirements have been fulfilled through review by the SWSCC and recommendation made
by it to the city based on information furnished to the SWSCC by Time Warner and its
representatives. Most of the information which was relied upon by the SWSCC was
furnished pursuant to FCC For, 394.
KBLCOM, Inc. and KBL Cable, Inc. agree that after the proposed transfer of control, KBL
Cablesystems of the Southwest, Inc. d/b/a Paragon Cable will continue to be bound by the
RECITALS:
I.
2.
3.
4.
Acceptance:
I.
Page 15
Minutes/Edina Citv CouncillJune 5,1995
I Ordinance and to timely and fully perform all of the duties and obligations thereunder.
KBLCOM, Inc. and KBL Cable, Inc. agree that after the proposed transfer of control, KBL
Cablesystems of the Southwest, Inc. d/b/a Paragon Cable will provide to the City and its
subscribers all lawful services as required in the Cable Television Franchise Ordinance.
KBLCOM, Inc. and KBL Cable, Inc. agree that after the proposed transfer of control, KBL
Cablesystems of the Southwest, Inc. d/b/a Paragon Cable will be subject to the lawful
regulatory authority of the City as set forth in the Ordinance as may be amended from time
to time hereafter.
KBLCOM, Inc. and KBL Cable, Inc. agree that after the proposed transfer of control, KBL
Cablesystems of the Southwest, Inc. d/b/a Paragon Cable will cooperate fully with the City
and obtain from the governmental agency all licenses, permits, and other authority
necessary for lawful operation and maintenance of its Cable Television System (the
"System") under the Cable Television Franchise Ordinance.
KBLCOM, Inc. and KBL Cable, Inc. have indicated that they do not believe that the City has
the right to purchase the cable system pursuant to the language set forth in Article XI of
the cable franchise ordinance. KBLCOM. Inc. and KBL Cable, Inc. acknowledge, however,
that the City has stated that it has the right to purchase the cable system as set forth in
Article XI of the cable franchise ordinance and the City will waive the right for this transfer
between Houston Industries Incorporated and Time Warner. KBLCOM, Inc. and KBL Cable,
Inc. acknowledge that the City does not waive that right for any future transfer or sale.
KBLCOM, lnc. and KBL Cable, Inc. represent and warrant as follows:
a.
2.
3.
4.
5.
6.
The management, finances, and operations of KBL Cablesystems of the Southwest,
Inc. d/b/a Paragon Cable will not negatively change as a result of the change in
control of ownership.
There will not be an adverse impact to subscribers because of the change in
control of ownership.
The change in control of ownership will not alter, delay, or change plans, if any, to
accomplish an upgrade of the cable television system capacity and to work with the
SWSCC during 1995 to negotiate an early renewal. KBLCOM, Inc. and KBL Cable.
are not bound to agree to an early renewal or agree to upgrade the system as a
result of this representation.
That after this transfer of control is completed KBL Cablesystems of the Southwest,
Inc. d/b/a Paragon Cable will continue to be a corporation duly organized, validly
existing, and in good standing under the laws of the State of Minnesota and will
have all rights and authority necessary to enter into and fully perform all of the
duties and obligations of the Grantee.
That each has taken all action necessary to authorize the execution and delivery of
this reaffirmation of Consent Agreement and Guaranty of Performance and the full
performance of all duties and obligations of the franchise holder under the
Ordinance.
That after this transfer of control is completed, KBL Cablesystems of the
Southwest, Inc. d/b/a Paragon Cable will continue to have the legal, technical, and
financial ability to operate and maintain the System pursuant to the terms of the
Ordinance.
That this reaffirmation of Consent Agreement and Guaranty of Performance is
binding on KBLCOM, Inc. and KBL Cable, Inc. and the Franchise Ordinance is
binding on KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable, to the
extent not inconsistent with State or Federal law.
KBLCOM, Inc. and KBL Cable, Inc. agree that all representations, warranties, and
agreements contained herein and in the Ordinance shall survive the execution of this
I b.
c.
d.
e.
f.
g.
I 7.
Page 16
MinutesIEdina City CouncWJune 5, 1995
reaffirmation of Consent Agreement and Guaranty of Performance and shall be binding
upon their permitted successors and assigns.
Notwithstanding anything to the contrary, the City, KBLCOM, Inc. and KBL Cable, Inc.
reserve all rights under federal, state and local law.
IN WITNESS WHEREOF, KBLCOM, Inc. and KBL Cable, Inc. warrant that they reaffirm the Consent
Agreement and Guaranty of Performance and guarantee all obligations imposed by this franchise,
that they agree to be jointly and severally liable to the franchising authority for actions, inactions,
omissions, violations and failure of compliance as a result of the granting of, acceptance of, and
continuation of this franchise.
8.
EXHIBIT 3
KBL CABLESYSTEMS OF THE SOUTHWEST, INC. C/B/A PARAGON CABLE
REAFFIRMATION OF ACCEPTANCE OF A FRANCHISE FOR A
CABLE TELEVISION SYSTEM AND CONDITIONS OF A
TRANSFER OF CONTROL OF THE CABLE SYSTEM
("REAFFIRMATION OF ACCEPTANCE")
THIS REAFFIRMATION OF ACCEPTANCE IS MADE BY KBL CABLESYSTEMS OF THE
SOUTHWEST, INC. C/B/A PARAGON CABLE ON JUNE 5,1995.
Recitals:
I.
2.
3.
4.
On or about February 21, 1995, the Cities of the Southwest Suburban Cable Commission
("SWSCC"), Eden Prairie, Edina, Hopkins, Minnetonka and Richfield, received a letter and
Form 394 from KBL Cablesystems of the Southwest, Inc., d/b/a Paragon Cable, the current
franchisee of the cable system, stating that Houston Industries Incorporated which wholly
owns KBLCOM, Inc. which holds KBL Cable, Inc. which holds KBL Cablesystems of the
Southwest, Inc. d/b/a Paragon Cable, proposes to transfer control of KBLCOM, Inc. to Time
Warner Inc. ("Time Warner").
Time Warner has requested the City's approval of a transfer of control of the cable
franchise which is granted by the Ordinance.
The City intends to approve Time Warner's request for a transfer of control of the cable
franchise, subject to Time Warner's acceptance of the conditions set forth in its
Acceptance Agreement and the Cable Television Franchise Ordinance and any
amendments thereto. As part of its approval, the City requests that KBL Cablesystems of
the Southwest, Inc. d/b/a Paragon Cable provide a reaffirmation of the Acceptance of a
Franchise for a Cable Television System it entered in 1988.
KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable understands that the City's
approval of the transfer of control of the franchise is based on requirements under federal,
state and local law. Those requirements have been fulfilled through review by the SWSCC
and recommendations made by it to the City based on information furnished to the SWSCC
by Time Warner and its representatives. Most of the information which was relied upon'
by the SWSCC was furnished pursuant to FCC Form 394.
Acceptance:
1. KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable agrees that it will continue
to be bound by the Ordinance and to timely and fully perform all of the duties and
obligations thereunder.
KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable agrees that it will provide
to the City and its subscribers all lawful services as required in the Cable Television
Franchise Ordinance.
KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable agrees that it will subject
to the lawful regulatory authority of the City as set forth in the Ordinance as may be
amended from time to time hereafter.
2.
3.
Page 17
Minutes/Edina Cifv CounciVJune 5.1995
4.
5.
6.
7.
8.
I KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable agrees that it will cooperate
fully with the City and obtain from any governmental agency all licenses, permits, and
other authority necessary for lawful operation and maintenance of its Cable Television
System (the "System") under the Cable Television Franchise Ordinance.
KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable has indicated that it does
not believe that the City has the right to purchase the cable system pursuant to the
language set forth in Article XI of the cable franchise ordinance. KBL Cablesystems of the
Southwest, Inc. d/b/a Paragon Cable acknowledges, however, that the City has stated that
it has the right to purchase the cable system as set forth in Article XI of the cable franchise
ordinance and the City will waive that right for this transfer between Houston Industries
Incorporated and Time Warner. KBL Cablesystems of the Southwest, Inc. d/b/a Paragon
Cable acknowledges that the City does not waive that right for any future transfer or sale.
KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable represents and warrants as
follows:
a. The management, finances, and operations of KBL Cablesystems of the Southwest,
Inc. d/b/a Paragon Cable will not negatively change as a result of the change in
control of ownership.
There will not be an adverse impact to subscribers because of the change in
control of ownership.
The change in control of ownership will not alter, delay, or change plans, if any, to
accomplish an upgrade of the cable television system capacity and to work with the
SWSCC during 1995 to negotiate an early renewal. KBL Cablesystems of the
Southwest, Inc. d/b/a Paragon Cable is not bound to agree to an early renewal or
agree to upgrade the system as a result of this representation.
That after this transfer of contro1 is completed it will continue to be a corporation
duly organized, validly existing, and in good standing under the laws of the State
of Minnesota and will have all rights and authority necessary to enter into and fully
perform all of the duties and obligations of the Grantee.
That it has taken all action necessary to authorize the execution and delivery of this
reaffirmation of Acceptance and the full performance of all the duties and
obligations of the franchise holder under the Ordinance.
That after this transfer of control is completed, it will continue to have the legal,
technical, and financial ability to operate and maintain the System pursuant to the
terms of the Ordinance.
g. That this reaffirmation of Acceptance and the Franchise Ordinance is binding on it,
to the extent not inconsistent with State or Federal law.
KBL Cablesystems of the Southwest, Inc. dlbfa Paragon Cable agrees that all
representations, warranties, and agreements contained herein and in the Ordinance shall
survive the execution of this reaffirmation of the Acceptance and shall be binding upon its
permitted successors and assigns.
Notwithstanding anything to the contrary, the City and KBL Cablesystems of the
Southwest, Inc. d/b/a Paragon Cable reserve all rights under federal, state, and local law.
b.
c.
I d.
e.
f.
IN WITNESS, WHEREOF, KBL Cablesystems of the Southwest, Inc. d/b/a Paragon Cable reaffirms
its Acceptance of a Franchise for a Cable Television System and accepts all obligations imposed
by this franchise, that it is liable to the franchising authority for actions, inactions, omissions,
violations and failure of compliance as a result of the granting of, acceptance of, and continuation
of this franchise.
Member Maetzold seconded the motion.
Rollcall:
Ayes: Kelly, Maetzold, Paulus, Smith, Richards
Resolution adopted.
Page 18
Minutes/Edina City CouncilNune 5, 1995
FIRST READING GRANTED FOR ORDINANCE NO. 1995-5 AN ORDINANCE CHANGING THE
STREET NAME W. 50TH STREET BETWEEN VERNON AVENUE AND ARCADIA AVENUE TO
INTERLACHEN BOULEVARD Affidavits of Notice were presented, approved and ordered placed on
file.
Presentation by Planner
Planner Larsen exdained that the affected street is West 50th Street between Arcadia Avenue and the
railroad bridge; or that section of the street which runs in front of the old Biltmore Bowl. No other
portions of West 50th Street exist west of Highway 100.
Presently, West 50th Street runs from Arcadia to the bridge. West of the biidge the street becomes
lnterlachen Boulevard. If the proposed name change is approved, it would logically eliminate the
potentially confusing situation, especially for public safety service.
Planner Larsen told that CSM, Inc., the owner and developer of the Biltmore property, has agreed to the
name change and signed the.petition.
Council Comments/Action
Mayor Richards believed the proposed name change will be confusing.
Member Maetzold said he does not have a better suggestion but logic would indicate the street be
renamed Interlachen. If the street were named a different name that would be even more confusing.
Mayor Richards inquired when the construction would be completed. Planner Larsen said expected
completion would be in late fall of 1995.
Mayor Richards asked if comments had been solicited from the new occupants. Planner Larsen said
Roger Schelper of Davanni's and the CSM Corporation have been notified of the impending change.
Mayor Richards called for further comments or concerns.
Member Kelly moved First Reading of Ordinance No. 1995-5 - An Ordinance changing the street
name of W. 50th Street to Interlachen Boulevard as presented. Motion was seconded by Member
Maetzold.
Rollcall:
Ayes: Kelly, Maetzold, Paulus
Nays: Smith, Richards
First Reading Granted.
*BID AWARDED FOR RENTAL OF 12 E-2 GO CARS FOR BRAEMAR GOLF COURSE Motion was
made by Member Kelly and was seconded by Member Maetzold for rental of 12 E-Z Go cars for
Braemar Golf Course to sole bidder, E-Z Go Textron at $6,134.40.
Motion carried on rollcall vote - five ayes.
FINDINGS ADOPTED: PERMIT GRANTED TO KEEP EXTRA DOG AT 6916 HILLCREST LANE
Sanitarian Velde informed the Council that Patricia Camillo, 691 6 Hillcrest Lane, had submitted an
application to keep four dogs at her address. On May 25, 1995, notice was sent to residents within 200
feet of the Camillo property. In order to grant Ms. Camillo permission to keep an extra dog, Council must
find that:
Keeping the extra dog will not create a nuisance.
Keeping the extra dog will not be detrimental to the public health and safety of the applicant or
other persons in the vicinity.
1)
2)
Page 19
Minutes/Edina Citv CouncilNune 5.1995
B Council may impose additional conditions or restrictions on this permit as it deems necessary for the
protection of the public interest.
One wn'tten objection was received from C.W. Lehmann, 6913 Cornelia Drive that pertained to dogs in
general, not specifically to the dogs at 6916 Hillcrest Lane.
Corinne Camillo, 6916 Hillcrest Lane, a student at Southview Middle School, asked that she be allowed
to keep the fourth dog because she has the responsibility and competency to do so. Presently they have
three very small dogs that have created no concern and she would like to acquire a fourth dog.
Pat Camillo, 6916 Hillcrest Lane, the petitioner explained she is a nurse and teaches at the University
of Minnesota. She can assure that the fourth dog would not become a health hazard. The three dogs
they presently have are small and older. Corinne has asked for the opportunity to acquire her own dog
and to go through obedience training with it.
Mayor Richards asked for public comment on the findings to grant the permit. No comments or
objections were heard. Mayor Richards summarized the proposed findings and conclusions;
I)
2)
3)
The procedural requirements of the Ordinance have been met.
The permit should be granted as requested.
Condition applicable to this permit:
The three dogs kept at 6916 Hillcrest Lane will remain at this property. The Camillo's will not
replace a deceased pet and will abide by the Ordinance, allowing no more than three pets when
one of their dogs expires.
This permit shall be effective June 5,1995, however, this permit shall lapse and be of no effect
unless all conditions and restrictions are observed, the applicant observes all City Ordinances
applicable to the keeping of dogs and cats, and the keeping of the dogs and cats is not in
violation of the Edina Zoning Ordinance which prohibits a kennel as a business in the Residential
Zone.
4)
Member Maetzold made a motion to adopt the findings as presented and to grant a permit, to
Patricia Camillo, 6916 Hillcrest Lane, as specified in the permit application. Motion was seconded
by Member Smith.
Rollcall:
Ayes: Kelly, Maetzold, Paulus, Smith
Nays: Richards
Motion carried.
SPONSORSHIPIDONATION POLICY DISCUSSED, ADOPTED Director Keprios reminded Council that
at the April 3, 1995, meeting, staff was directed to revise and incorporate input received into the
originallsponsorship policy that had been presented. At the May I, 1995, meeting, the Council concurred
that the policy be continued to June 5, 1995, to receive additional input from the Council.
Director Keprios presented the Donations, Sponsorship and Advertising Policy which included:
I) The Overall Policy
2) Philosophy/Background
3) Sponsorship/Donation Plan and Procedures
4) 5) Donations/Sponsorships Definition
6) Donations/Sponsorships Guidelines
7) Advertising Plan and Procedures
Procedures to Acknowledge Appreciation of Donations
I
A copy of the policy is on file in the office of the City Clerk.
Page 20
MinutedEdina City CouncilIJune 5, 1995
Member Maetzold informed Council that he had worked with Director Keprios on the policy in an attempt
to make it proactive.
Mayor Richards said much thought and effort has gone into the policy. He suggested language in the
policy should be emphasized as a City of Edina policy with responsibility ultimately resting with the
Council.
Member Smith said he is not a fan of this type of policy. Proposed sponsorship/ donations should come
before the Council for discussion. He stated that presently the Edina Foundation exists as a vehicle to
accept donations.
Member Kelly felt that outside money is needed to make programs work and go forward. She would
concur that language should be changed within the policy giving the City of Edina full responsibility.
Member Smith suggested that future Councils do not rely on outside funding for program budgeting. He
voiced concern if in the future donations were not forthcoming, that a position would be created to seek
funding.
Member Kelly sees this funding as enriching or embellishing an activity, not as eliminating an activity if
funding isn't in place.
Mayor Richards believes the City has built an infrastructure to be proud of and he personally would
support its maintenance. At times, the budget needs supplementing and private resources can help but
he would not agree with interpretation of the policy that staff would solicit funding.
Member Kelly moved adoption of the SponsorshipIDonation Policy as presented. Member
Maetzold seconded the motion.
Ayes: Kelly, Maetzold, Paulus, Richards
Nays: Smith
Motion carried.
COUNCIL DECISION UPHELD - JOHN SENIOR, JR Mayor Richards said that copies of findings and
conclusions regarding Volunteer Firefighter John Senior, Jr., were recently forwarded to the Council, Mr.
Senior, Jr. and David Himlie, Attorney for Mr. Senior, Jr.
David Himlie, Attorney for John Senior, Jr., voiced objections that the findings only addressed current
facts and eliminated facts presented at the hearing held April 27, 1995. Mr. Himlie stated the findings
and conclusions are inaccurate and he would object to them.
Mayor Richards asked for comments and concerns. No further comments or concerns were received.
After a brief Council discussion, Member Smith made a motion to affirm the decision of findings and
conclusions as presented which affirmed the City Manager's decision to terminate from City
employment, Volunteer Firefighter, John Senior, Jr.
Member Kelly seconded the motion.
Rollcall:
Ayes: Kelly, Maetzold, Paulus, Smith, Richards
Motion carried.
APPOINTMENTIRE-APPOINTMENT MADE TO COMMUNITY EDUCATION SERVICES BOARD
Manager Rosland suggested the Council consider the appointment of Edward Myslivecek to serve on
the Community Education Services Board to fill the seat vacated by the resignation of Char Burrell as
Representative at Large. The one year term runs from July 1 , 1995 to June 30, 1996.
Page 21
MinutedEdina Citv CouncillJune 5.1995
I Member Kelly made a motion for consent of the Mayor's appointment of Edward Myslivecek to the
Community Education Services Board. Motion was seconded by Member Smith.
Ayes: Kelly, Maetzold, Paulus, Smith, Richards
Motion carried.
Mayor Richards recommended the reappointment of Member Kelly to the Community Education Services
Board if she wishes to continue representing the Council on the Board.
Mayor Richards made a motion to re-appoint Member Kelly to serve as Council representative on
the Community Education Services Board. Motion was seconded by Member Smith.
Ayes: Kelly, Maetzold, Paulus, Smith, Richards
Motion carried
VACANCY NOTED ON HUMAN RELATIONS COMMISSION Mayor Richards noted that a vacancy still
remains on the Human Relations Commission. The vacancy was created by a resignation and will be
filled by the Edina Schools.
*RESOLUTION ADOPTED HOLDING STATE HARMLESS - MALONEY AVENUE Member Kelly
introduced the following resolution which was seconded by Member Maetzold as follows:
RESOLUTION
WHEREAS, the City of Edina has submitted to the Commissioner of Transportation a request for
a variance from Minnesota Rule 8800.2500 Subp. 3 Right-of-way. The variance request is for
Maloney Avenue between Blake Road and Washington Avenue from the minimum Right-of-way
of sixty (60) feet to a Right-of-way varying from forty (40) to fifth-three (53) feet.
HOLD HARMLESS - MALONEY AVENUE
The City agrees to indemnify, save and hold harmless the State of Minnesota and all of its agents
and employees of and from anylall claims, demands, actions or causes of action of whatsoever
nature or character arising out of or by reason of the variance granted by the State of Minnesota
related to Minn. Rule 8800.2500 Supb. 3 Right-of-way minimum.
The City of Edina further agrees to defend at its own sole cost and expense any action of
proceeding commenced for the purpose of asserting any claim of whatsoever character arising
as a result of this variance.
Motion carried on rollcall vote - five ayes.
1996 BUDGET DIRECTION DISCUSSION HELD REVISED CALENDAR OF EVENTS FOR THE 1996
BUDGET PRESENTED Manager Rosland explained that staff is seeking budget direction and dates
for the 1996 Budget. He presented the revised calendar of events for the 1996 budget. The changes
reflect the move of the July 17, 5:OO P.M. meeting to July 5, 5:OO P.M. to allow better utilization of
preparation time for the 1996 budget document.
Member Paulus made a motion approving the revised calendar of events for the 1996 Budget.
Motion was seconded by Member Kelly.
Ayes: Kelly, Maetzold, Paulus, Smith, Richards
Motion carried.
I CLAIMS PAID Member Kelly made a motion to approve payment of the following claims as shown
in detail on the Check Register dated June I, 1995, and consisting of 39 pages: General Fund
$333,648.94; C.D.B.G. $70.00; Communication $7,085.04; Working Capital $1 1,144.39; Art Center
$9,239.36; Swimming Pool $13,990.44; Golf Course $81,135.78; Ice Arena $15,280.62; Gun Range
Page 22
Minutes/Edina City CouncilNune 5, 1995
$395.20; EdinboroughlCentennial Lakes $25,660.23; Utility Fund $315,141.13; Storm Sewer
$7,397.38; Liquor Fund $1 63,001.73; Construction fund $1 0,703.86; IBR #2 Fund $16,961.23;
TOTAL $1,010,855.33. Motion was seconded by Member Smith.
Rollcall:
Ayes: Kelly, Maetzold, Paulus, Smith, Richards
Motion carried.
There being no further business on the Council Agenda, Mayor Richards declared the meeting adjourned
at 1O:OO P.M. -n
Acting City Clerk
Page 23