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CCM 01/05/2015 CITY COUNCIL MEETING CITY OF FRIDLEY JANAURY 5, 2015 The City Council meeting for the City of Fridley was called to order by Mayor Lund at 7:16 p.m. ROLL CALL: MEMBERS PRESENT: Mayor Lund Councilmember Barnette Councilmember Saefke Councilmember Varichak Councilmember Bolkcom OTHERS PRESENT: Wally Wysopal, City Manager Darcy Erickson, City Attorney Scott Hickok, Community Development Director James Kosluchar, Public Works Director Debra Skogen, City Clerk Tom Determan, 14914 Naples Street N.E. Donald E. Anderson, Jr., 7304 West Circle N.E. OATH OF OFFICE: Councilmember, Ward 1: James T. Saefke Councilmember, Ward 2: Dolores M. Varichak Councilmember, Ward 3: Ann R. Bolkcom APPROVAL OF PROPOSED CONSENT AGENDA: OLD BUSINESS: 1. Approve the Minutes of the City Council Meeting of December 8, 2014 (Continued December 22, 2014). Wally Wysopal, City Manager, stated on page 24, fourth paragraph, "Jawar" should be "Juaire". Councilmember Bolkcom stated she believed she made the motion on page 41. APPROVED AS CORRECTED. FRIDLEY CITY COUNCIL MEETING OF JANUARY 5, 2015 PAGE 2 NEW BUSINESS: 2. Receive the Minutes of the Planning Commission Meeting of December 17, 2014. RECEIVED. 3. Preliminary Plat Request, PS #14-04, by Fridley Land, LLC, to Accommodate the Second Phase of the Redevelopment of the Property, Generally Located at 4800 East River Road. APPROVED. 4. Preliminary Plate Request, PS #14-05, by DET 7220, LLC, to Replat Two Properties to Make an Adjustment to the Property Line, Generally Located at 7220 Central Avenue and 1241 - 72nd Avenue (Ward 2). APPROVED. 5. Special Use Permit Request, SP #14-09, by Good Deal Auto Sales, Inc., to Allow an Outdoor Auto Sale Lot, Generally Located at 7298 Highway 65 N.E.; and Resolution Approving Special Use Permit, SP #14-09 for Outdoor Used Auto Sales, Petitioned by Good Deal Auto Sales, Inc., on Behalf of Shranjit Singh, the Property Owner for the Property Located at 7298 Highway 65 N.E. (Ward 1). APPROVED SPECIAL USE PERMIT, SP #14-09 AND ADOPTED RESOLUTION NO. 2015-01. 6. Final Plat Request, PS #140-01, by ZCOF TL Fridley, LLC, to Subdivide the Existing Large Lot to Create Two Separate Parcels from the Original Lot, for Development Along 57th Avenue, for the Property Located at 250 - 57th Avenue N.E.; and Resolution Approving Final Plat, P.S. #14-01 by ZCOF TL Fridley, LLC, the Property Owner of 250 - 57th Avenue N.E. to Create Two Additional Parcels of Land (Ward 3). APPROVED FINAL PLAT REQUEST, P.S. #14-01, AND ADOPTED RESOLUTION NO. 2015-02. FRIDLEY CITY COUNCIL MEETING OF JANUARY 5, 2015 PAGE 3 7. Resolution Designating an Official Newspaper for the Year 2015. Mr. Wysopal stated this resolution designates the Fridley Sun Focus as the City’s official newspaper for 2015. ADOPTED RESOLUTION NO. 2015-03. 8. Resolution Designating Official Depositories for the City of Fridley. Mr. Wysopal stated this resolution designates Wells Fargo as the City’s official depository. ADOPTED RESOLUTION NO. 2015-04. 9. Approve 2015 City Council and Staff Appointments. APPROVED. 10. Appointment - City Employee Mr. Wysopal stated this is for the appointment of a new regular employee, Aaron O'Connell as a Public Services Worker. This appointment fills a vacancy that was created by a resignation. APPROVED. 11. Claims (166681 - 166795) APPROVED. 12. Licenses APPROVED THE LICENSES AS SUBMITTED AND AS ON FILE. 13. Estimates: Sunram Construction, Inc. 20010 - 75th Avenue North Corcoran, MN 55340 Springbrook Weirs Project No. 410 FINAL ESTIMATE Estimate No. 6 - ...............................................$ 6,636.44 Northwest Asphalt, Inc. 1451 Stagecoach Road Shakopee, MN 55379 2013 Street Rehabilitation Project No. ST2013-01 FINAL ESTIMATE Estimate No. 6 - ..............................................$ 12,308.49 APPROVED. FRIDLEY CITY COUNCIL MEETING OF JANUARY 5, 2015 PAGE 4 APPROVAL OF CONSENT AGENDA: MOTION by Councilmember Barnette to approve the proposed consent agenda. Seconded by Councilmember Varichak. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. OPEN FORUM: No one from the audience spoke. ADOPTION OF THE AGENDA: MOTION by Councilmember Saefke to add Item No. 14A, Reconsideration of Garbage Hauler Contract. Seconded by Councilmember Bolkcom. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. MOTION by Councilmember Saefke to approve the agenda with the addition of Item 14A. Seconded by Councilmember Bolkcom. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY. PUBLIC HEARING: 14. Consider the Application for the Transfer of the Cable Franchise System from Comcast of Minnesota, Inc., the Existing Cable Television Franchisee, to Midwest Cable, Inc. MOTION by Councilmember Bolkcom to open the public hearing. Seconded by Councilmember Saefke. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY AND THE HEARING WAS OPENED AT 7:26. Mr. Wysopal stated this has to do with a request by Comcast and is related to the Time Warner merger deal. This is a request to transfer a cable franchise from Comcast to Midwest Cable. Brian Grogan, an attorney with Moss & Barnett, has been representing the City of Fridley as outside counsel and has been working with City Attorney Darcy Erickson and himself as they move through this process. Mr. Wysopal stated Attorney Grogan is representing multiple cities within the Twin Cities and was unable to be present this evening. This is an item the Council has been apprised of at the previous workshop. FRIDLEY CITY COUNCIL MEETING OF JANUARY 5, 2015 PAGE 5 Mr. Wysopal stated as a result of the merger between Comcast and Time Warner, the federal government has asked Comcast to divest itself of a certain number of subscribers because they feel it is a threshold that creates a monopolistic situation. Most of the subscriber transfers and sales will take place in Minnesota. Mr. Wysopal stated this was announced in February 2014. Comcast would acquire from Time Warner Cable, 11.4 million cable subscribers, which resulted in Comcast controlling 34 million cable subscribers. It requires local, state, and federal approvals. At the City of Fridley, this public hearing is required as a result of the City’s Charter. No cable transfer can take place until the City Council gives its consent. Mr. Wysopal stated Comcast has to shed itself of 4 million cable subscribers. They will seek to get down to 30 million cable subscribers. He presented a presented a chart showing the number of cable subscribers between Comcast and Time Warner. He said Comcast and Time Warner are the vast majority of all cable providers for subscribers in the country. Mr. Wysopal stated Comcast and Charter Communications announced April 2014 that Comcast would sell 1.4 million subscriptions to a company named Charter, and then Comcast and Charter would swap some subscriptions as well. Mr. Wysopal stated Charter operates cable systems throughout Minnesota including some cities within the Twin Cities. They have 6 million subscribers in 29 states. Charter Communications is a Fortune 500 company. Mr. Wysopal stated Midwest Cable will be a newly-created company that will take over 2.5 million subscribers in this deal. The reason, as has been presented to the City through the filings, is that Charter does not have the capacity to purchase those 2.5 million subscribers on their own. Therefore, a new company is being created called "Midwest Cable." They will be the end user/provider in Fridley, and they will be wholly owned by Comcast. Therefore, Comcast is providing the money for this transaction to take place. Mr. Wysopal stated Twin Cities Comcast systems are part of this spinoff. Midwest Cable will be newly created, and the new guaranty company will be called Comcast of Minnesota, LLC. The financial review of this becomes very challenging. Mr. Wysopal stated as to who will run Midwest Cable, that is a germane question for Council to be able to answer, because we are concerned with not only the financial and the legal, but also the customer service operation capacities of this new company. A separate board of directors will be operating Midwest Cable. Thirty-three percent of them will come from Charter Communications, and sixty-seven percent will come from Comcast shareholders. Midwest will have 9 board members. Michael Willner will be the president and CEO of Midwest Cable. He has an extensive background in cable communications, and he was a former Comcast executive. Midwest is a new company, so it has no operating history to look at, and all of the substantial operations are going to be handed off to Charter Communications through a sub-agreement. Mr. Wysopal stated the City has a right to review these transfers. Under the City's franchise, and state and federal law, they can approve or not approve them. If they are not approved, it FRIDLEY CITY COUNCIL MEETING OF JANUARY 5, 2015 PAGE 6 could hold up the overall acquisition Comcast has of Time Warner. The original request was given to the City in June, 2014. Since then, the City has asked for delays to review information. Midwest Cable also needed to be able to present and create information that never existed before, such as how are customers going to served and what are the impacts going to be. We have the right as a City to look at the legal, technical, and financial qualifications and then make a decision. Mr. Wysopal stated the local operations for Midwest Cable will take place outside of Minnesota. When cable customers have a complaint or customer service issue, they will be talking to people who are not in Minnesota. Government affairs personnel will be interacting with local franchising authorities who will be Midwest Cable employees. Other operational services will be provided by Charter personnel. If you can kind of imagine that Charter Communications will kind of have all the backroom operations, and Midwest Cable will be providing some of these things on contract through Charter Communications. Mr. Wysopal stated Comcast will still remain in Minnesota. Their large operations, employment headquarters in St. Paul and also in Minnetonka will remain. However, they will not be serving any Minnesota customers because there will not be any customers of Comcast in Minnesota any longer should this transfer go through. Mr. Wysopal stated Midwest will pay Charter 4.25 percent of the revenues generated as a fee for Charter's work, and this is 4.25 percent of all voice, video, and data revenues. Why is this important to our discussion? Primarily because the City needs to be able to understand if Midwest Cable will be able to perform under the terms of the agreements. Mr. Wysopal stated the procurement and programming management services are included--the network operations, engineering--all these types of things will be handled and paid for under the 4.25 percent of the revenues. Mr. Wysopal stated as to the impacts on service, as best they can tell, Comcast subscribers will be able to keep their Comcast telephone numbers. That is a result of a State statute which states when you switch providers you can keep your number. The subscribers will be able to keep their cable equipment. Therefore, your boxes, etc. you might have at your house will be able to stay there and be utilized by Midwest Cable. Your e-mail may have to transition away from that "comcast.net". That is going to have to change to the Charter's e-mail domain. Mr. Wysopal stated the billing will transition from Comcast to Midwest. It will be somewhere throughout the Midwest and not local. On-line payment will remain intact; however, if the subscriber has automatic payments, that might have to change to the new provider being Midwest. Mr. Wysopal stated as to the financial review, the City’s representatives from Moss & Barnett, and the City Attorney have had a chance to look at some of the financial documents. Midwest has a long-term debt estimated at about $7.8 billion for this acquisition. The way it is reviewed in the communications industry is earnings before interest and taxes, depreciation, and amortization (EBITDA). Even though this $7.8 billion is significant in our eyes and certainly much more than what Comcast carries right now, industry-wise it is not all that high. It is FRIDLEY CITY COUNCIL MEETING OF JANUARY 5, 2015 PAGE 7 presented that Charter currently has a 5.0 times and Cable Vision is at 5.3 and some groups, including Suddenlink and Mediacom (other providers throughout the country) have higher EBITDA's than what Midwest will have as a result of this acquisition. Mr. Wysopal stated Council will be asked at the next City Council meeting to approve this transaction subject to any written acceptances of the new guaranty by Comcast. They want to make sure that all of the guaranties that have been pledged will be carried forward, such as any guaranties by GreatLand Connections, the technical new name for Midwest, and then any customer service. They would like Midwest to meet quarterly with the City to review customer service for the conditional two years, and they would like there to be an escalated complaint process maintained throughout the term of the cable franchise. Any transfer costs, such as the attorneys’ time and staff time that is put into this will reimbursed by Midwest Cable and Comcast. Mr. Wysopal stated that is the presentation, and is the result of the federal government telling Comcast that by acquiring Time Warner they are going to have too much of a monopoly of cable communications throughout the country. Accordingly, they had to divest themselves of 2.5 million subscribers. Most of them come from Minnesota, Wisconsin, Illinois and a portion of Michigan. As a result, it triggers a mechanism on the City's part to review that transfer. We have looked at it from a legal standpoint and it seems to pass muster. We have looked at from a financial standpoint of raising some concerns regarding the debt they are carrying. We have looked at it from an operational standpoint and the fact they are going to be out of state, and the City provided some requests on that transfer to look out for those deficiencies. Mayor Lund stated they do not really have a lot of choices here as it has been explained to him by the attorney who works wholeheartedly on these types of issues. It is going to happen with or without our approval. Without our approval, it might just delay it but, ultimately, it costs the City more money to fight that battle without a real clear outcome for us of what they really want to make this approval. What he does not like about it is they do not have the history to support this, so people do not know how good they are with customer service, etc. although they will be paying another entity to assist them or take over a lot of the backroom type activities. It is a little unnerving. Change is good, but sometimes not so good when you do not have other players to work with. Mr. Wysopal stated the City will continue to get its franchise fee in the same manner and in the estimated same amounts it currently gets under the franchise with Comcast; therefore, the City does not anticipate any great changes. The only difference could be that if Midwest were to lose a number of subscribers because of competition that might come in, not from another cable company but perhaps from a satellite dish television. If that is the case, there is a possibility that there might be a reduction in the number of subscribers for cable television in Fridley, and our franchise revenue would be reduced because there is less money to be paid. Councilmember Saefke asked why Comcast chose to divest themselves of the Twin Cities area even though their corporate headquarters are going to stay here? Mr. Wysopal replied he does not have a good answer. This is not their world headquarters. That is in Philadelphia. It is going to be like United Healthcare. It is the largest provider of FRIDLEY CITY COUNCIL MEETING OF JANUARY 5, 2015 PAGE 8 health insurance in the country and a major employer in the State of Minnesota, yet it does not provide any product in Minnesota. After the financial debt that Midwest will be carrying, we are concerned that they will not be able to perform under contract. One concern is if there is any damage to the right-of-way, they have to make repairs under the terms of the agreement. After that, the City's greatest concern is customer service. It is always easier to bring someone from Minnetonka or St. Paul if they have questions than to bring someone in from wherever they are going to be located. Councilmember Barnette stated just the other day, he had some difficulty with his television. He called Comcast to come out, and they replaced the box and did some work on some wiring, etc., at no cost because it was their equipment. Will Midwest assume ownership of all that equipment and provide the same kind of service? Mr. Wysopal replied they will take over those responsibilities. After this proposed transfer takes places in April, it would be assumed that would happen. He said he cannot speak to their quality of service. Councilmember Bolkcom stated back to the equipment. They only promise it for the time being. There is a possibility they may say there have been so many problems with the equipment, you all have to have new equipment, and it will cost more money. Mr. Wysopal replied he does not know what that answer would be. He does not know if they would charge people for all new equipment or if it is just an upgrade. Based on their debt service, he would think they would not be investing in that type of equipment right away. Councilmember Bolkcom asked if there is any city in the metro area that has actually approved this agreement. Mr. Wysopal replied, yes, several cities have already done so. Those particularly that do not have the public hearing component have approved it. Some are still considering it as late as next week. There is an interest in Comcast to get this done by the first of February. They would look at bringing this back to Council at the second Council meeting in January. Also touching back on Councilmember Bolkcom's previous question with regard to some of the levels of service they currently have now and the types of programming that you buy, the City did look at that and Midwest Cable has a very similar transition. Therefore, if you are enjoying a certain level of programming right now, it most certainly is going to transfer to the Midwest Cable operations. Councilmember Bolkcom stated going back to that whole service thing as Charter is in St. Cloud, they do not have any idea either if they will just keep their technicians there and then have them come here and say, we will see you in two weeks. They have a small little area now and they are taking on a pretty significant area. One wonders how long people might have to wait. She asked if there was a way to build that into the agreement. Mr. Wysopal replied, staff feels the best approach was to build in that ability to have regular meetings and also require they have an expedited process of where, if the City gets calls from residents that they have been having a problem that has been going on too long, the City can contact Charter Midwest and say, advance this in the expedited process. That is getting a little FRIDLEY CITY COUNCIL MEETING OF JANUARY 5, 2015 PAGE 9 too much into the detail in terms of when the complaint started, etc. Staff finds that way too overwhelming to get into all those complaints which we currently do not do now. Councilmember Bolkcom asked if there was a fair amount of people contacting the City now. Mr. Wysopal replied they do not get that many calls on service. Those that they do get, they are able to move along. Councilmember Bolkcom stated and they have agreed not to go out of the United States. Mr. Wysopal replied correct. Councilmember Bolkcom asked what happens if this just does not work. Mr. Wysopal replied he does not have a real solid answer on that. His guess is there would be an opportunity for another cable company to pick it up on cents on the dollar--a foreclosure bankruptcy. Councilmember Bolkcom replied, they had a workshop before the last Council meeting in December and the attorney was here and mentioned 66,000 comments in front of the FCC, is that moving along? Mr. Wysopal replied he is not sure where the process is at the FCC. They are taking all the comments about the merger of Comcast and Time Warner, and he is sure a lot of those concerns are very similar to the ones they are talking about today: service, operational capacity, debt service, etc. Councilmember Bolkcom stated at the next Council meeting they will approve this. Do all the cities have to approve this agreement or the majority of them in order for it to even be considered by the FCC or does it not matter? If they do not approve the agreement or if every city said they just do not like it, do they still approve it? Mr. Wysopal stated the strategy they were looking at early on was what could be leveraged in the end game. If they look at saying, we do not want to approve this because we do not feel good about it based on the legal and technical operational and financial aspects, the City could end up holding up the acquisition of Time Warner by Comcast, and that certainly would put the City up on the national news. The other route was to look at it and say, okay, this acquisition by Time Warner has a lot of momentum going, what is it the City needs from that transfer to assure the City's residents and do the City's responsible activity regarding the franchise agreement. Those are the things they pointed out, make sure there is an expedited process, make sure the City has the opportunity to meet with them, and hear some of those financial guaranties. Those were the items the City wanted to secure as a part of its agreeing to transfer the franchise. Councilmember Bolkcom said but in a sense they are kind of holding the City hostage because if they do not sign an agreement and approve an agreement, the City does not have those safeguards Mr. Wysopal is talking about, but it is still going to be approved. FRIDLEY CITY COUNCIL MEETING OF JANUARY 5, 2015 PAGE 10 Mr. Wysopal stated early on in this process they did get support from the U.S. senators, and they did indicate and did help with the process to get Midwest Cable and Comcast and Time Warner to provide some of this information. Originally, they should have been seeing this as a consideration back in the summer. However, at that time, they had absolutely no information on what this company, Midwest Cable, was all about. With their delegation and support and also the League of Minnesota Cities and all these other cities that are currently considering these franchise transfers, they were able to put this together and have a lot better information today than they did six months ago. Councilmember Bolkcom stated when he had the plan up there related to the number of shareholders that are Comcast shareholders that are part of the board, it seems a little funny. And then the whole piece related to how much money they are going to be expending to someone else of their operations and they already have such a huge debt load to begin with, and they paying 4.5 percent of all that to someone else for whatever length of time. Just recently it was in the newspaper Century Link was looking at going out in the field and doing some more. They could really use that franchise fee the City has, it depends on it. Obviously they could lose some of that money because of this whole opportunity but on the other hand, if the City does not do it, Comcast will do it anyway. Councilmember Varichak stated the attorney from Moss & Barnett was pretty on top of his game. He studies that and works with that. Don Anderson asked where they would get the remotes, etc. The same place in Minneapolis? Mayor Lund replied they do not know if they will keep all their facilities. Mr. Wysopal replied he is correct. They are not sure if Midwest Cable will just assume those locations and then begin operating out of them. Councilmember Bolkcom asked if they anticipate any outstanding issues between now and the next Council meeting. Mr. Wysopal replied they do not anticipate any other changes on this. This has been the standard for all the other cities as they are considering this. Those other cities are considering the same requirements to have the expedited process and the financial guaranties. Councilmember Bolkcom said we are at an advantage with starting the City's franchise agreement just a few years ago? Mr. Wysopal replied, they might have had more advantage if there was only a year left or something like that, they could have asked for more things, but the current agreement he believes goes into 2020. MOTION by Councilmember Bolkcom to close the public hearing. Seconded by Councilmember Saefke. FRIDLEY CITY COUNCIL MEETING OF JANUARY 5, 2015 PAGE 11 UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY AND THE HEARING WAS CLOSED AT 7:52. 14A. Reconsideration of Garbage Hauler Contract. MOTION by Councilmember Saefke to suspend Rosenberg's Rules. Seconded by Councilmember Bolkcom. Mayor Lund stated just so the audience knows the City Council now operates under Rosenberg's Rules rather than Robert's Rules of Order which allows for a suspension of Rosenberg's Rules. Councilmember Bolkcom asked Attorney Erickson to go over Rosenberg's Rules related to the issue to reconsider. They need to vote but also they need a certain number in order to suspend the Rules to actually have any reconsideration. Attorney Erickson replied, typically a motion to reconsider needs to be made at the same meeting at which the underlying item was considered. Otherwise, it is considered untimely. However, the governing body, such as the City Council here, operating under Rosenberg's Rules which the Council adopted last January, may make a motion to suspend its rules. That requires a two-thirds vote. For the City Council to suspend its rules under which this motion would be considered untimely, and in order to consider the motion and have it considered timely because of the suspension, you need to have a two-thirds vote and for this body, that is a four-fifths vote. You have to have four out of five City councilmembers agreeing to do so. Secondly, the motion to reconsider must be made by a member of the prevailing side on the underlying action item. Mr. Saefke voted with the majority on the underlying action so the proper person has made the motion, but this vote to suspend the Rules in order to reconsider, the vote or consideration on the organized collection process would require four out of five City councilmembers to vote in the affirmative tonight to suspend those Rules. Councilmember Bolkcom stated and the difference is, in Robert's Rules of Order, you actually need to suspend the Rules but at the next meeting you just have to put it on as an agenda item and the person on the prevailing side needs to make the motion to reconsider. Attorney Erickson replied she believed Robert's Rules is slightly different than Rosenberg's Rules. Councilmember Bolkcom stated this is the first time it has come up, and the off part to her in Rosenberg's Rules is that if you were going to reconsider, first of all, it was almost at the end of the meeting. It only took three votes to not approve the organized hauling item, but now tonight, in order for it to be reconsidered, it takes four out of five. If there were only four people at the meeting, and the vote was 3-1 and at the next meeting there were five people, would it only go by if there were four at the last meeting? Attorney Erickson replied, that is a very complicated question. She would have to look at how they are treating the absentee. Is it the vote of the members present or is the vote of the body as a whole in regards to whoever is present. The fact of the matter is, they had five City FRIDLEY CITY COUNCIL MEETING OF JANUARY 5, 2015 PAGE 12 councilmembers at the last meeting. She can have an answer for her at the next meeting. It does require some analysis. Mayor Lund stated it seems to him that issue actually came up in discussion when they were going to change from Robert's Rules to Rosenberg's Rules. There were some scenarios about the difference between whether the person had stepped aside on this particular issue but really was present or if the person was actually not here at this particular Council meeting. He does not remember the terminology was but there was a difference. Councilmember Bolkcom replied right, but as far as the whole thing about the motion to reconsider, she never knew you could not just bring it back at the next meeting. The issue here tonight though is if four people do not even vote to discuss it, you cannot even bring it back up. Unfortunately, if there is any new information that might come up after a meeting or a public hearing in this process, it kind of stalemates it in a sense. Councilmember Bolkcom states she would like them to vote individually and maybe to understand why someone might not want to at least have a little further discussion. They do not have to answer, but she would like to have a roll call vote related to this. Councilmember Bolkcom stated she votes, yes, to suspend this because this is an opportunity to actually have further discussion. Not necessarily take a vote tonight but to at least have further discussions on what might have come to light over the last few weeks. People sometimes come to the meeting when they are against something and people who might agree or voting in the positive for something do not come and speak. Councilmember Saefke stated he votes to accept this and the reason for it is he agrees with Councilmember Bolkcom that there should be a little bit more discussion. There has been some stuff and contacts made which makes very good sense. Mayor Lund stated he would also vote in favor of the motion to suspend Rosenberg's Rules. He was not on the prevailing side as most people know. He has had some contacts with people who were not happy with his vote. By far, he has had many more contacts from people over the ensuing two weeks who thought this was a no brainer and that it was a done deal. Maybe those people gravitated to him because he voted the way he did. He had some comments from people that it was part of his own personal agenda and that was not correct. He does believe that he nor anyone on this Council makes a motion or a decision based on their personal agenda but rather what they currently believe is good for this community. He would like the opportunity to revisit and reconsider the agreement and those items related to the organized garbage collection. Councilmember Varichak stated she votes no because they did take public comment. She has heard from both sides. She is not going to lie. She has heard some positive things that they should do it, and she has heard some negatives. However, most of all the negatives outweighed the people who called her and said they wanted this garbage hauling organization. She has to go with what her constituents want. She felt this is too big of a decision for her just to make on her own when she has had input from her constituents. FRIDLEY CITY COUNCIL MEETING OF JANUARY 5, 2015 PAGE 13 Councilmember Barnette stated he also votes, no. They had plenty of discussion and have had this issue out there for people to respond to. Much like Councilmember Varichak, the vast majority of people who discussed it with him were voting to leave things like they are. Yes, he also got some negative support. The question he has is, could this issue be brought up again at a different time or might it best go to a vote some time? However, he is going to vote, no. UPON A VOICE VOTE, COUNCILMEMBER BOLKCOM, COUNCILMEMBER SAEFKE, AND MAYOR LUND VOTING AYE AND COUNCILMEMBER VARICHAK AND COUNCILMEMBER BARNETTE VOTING NAY, THE MOTION FAILED. Councilmember Bolkcom stated she did ask Attorney Erickson if there is a possibility it could come up at another meeting as long as someone again on the prevailing side were to bring the motion forward. Attorney Erickson replied, she does not think there is anything that precludes a future motion to suspend the rules to reconsider; however, the further out you get out from the underlying action it raises all sorts of questions about whether the offer would still stand, how timely is it and the process under 115A.94 gets a little attenuated the further they get from the organized collection process. Councilmember Bolkcom stated with Rosenberg's Rules, if it has to be 4-5, it is going to be pretty hard to reconsider something again. If someone is on the prevailing side and does not want to talk about it or even bring it up, most of the time the motion to suspend the Rules will fail. Councilmember Barnette stated, for example, in the future, in three to four months, if someone wanted to bring up this issue again and they would have meetings with the haulers, etc., and this came back up for a vote again. Would it take four-fifths or would it take just three like it did before? Attorney Erickson replied, any future reconsideration of this will always require suspension of the Rules by four-fifths vote because, in and of itself, this motion at the next meeting is considered untimely. In order to suspend the Rules, you need the four-fifths vote. Under Rosenberg's Rules, that motion to reconsider should be conducted and made at the same meeting at which that underlying issue is being considered. It is always considered untimely and necessitating the four-fifths vote if it is not done at that same meeting. Also, just to briefly comment, she thinks much like Robert's Rules, the intent with Parliamentary procedure is to lend some finality, too, and that is why it is that heightened vote requirement to do so. Councilmember Bolkcom stated the whole point is, in Robert's Rules of Order, you could come back and someone on the prevailing side could put something on the agenda and ask to have it reconsidered. In Rosenberg's Rules you better make your decision that night and not change it because, unless you can really convince someone on the prevailing side, you have to have four out of five votes. Mayor Lund asked, regarding Councilmember Barnette's question, if something new and substantially different came up, would that be considered a brand new discussion item. If someone came forward at a later date, maybe it is even from the hauler saying let's go to a citizen FRIDLEY CITY COUNCIL MEETING OF JANUARY 5, 2015 PAGE 14 forum, organizing an ad hoc group to study the issue, because that was one of the things that was brought up from the State law. Usually, it is comprised of some who are in favor and some who are in opposed. Maybe they can come back with some recommendation. If there was a proposal about going to a single hauler, rather than the district hauling they were considering, would those be substantial differences that might allow for a whole new discussion or new agenda item? Attorney Erickson replied, there are a couple of points here to address, the first of which is, any motion to ever reconsider the proposal as presented by the haulers at that December meeting will be considered an untimely motion, always requiring a forfeit. Then there is the issue of the process under 115A.94. By taking no action and rejecting the proposal, basically the finality of that decision, the City opted not to proceed with forming a committee and studying those options and formulating basically a decision or action plan to solicit bids and so forth. There would need to be an entirely new Chapter 115A.94 process that would play out. Councilmember Saefke stated this probably is not going to satisfy anybody, but 2016 is a general election. They usually get between 75 and 78 percent of eligible voters who vote at that time. He asked if it precluded putting it on the ballot. Attorney Erickson replied what they would be looking for is an initiative that there is some proposed ordinance or some action that is appropriate to put onto the ballot for the voters to weigh in on. Essentially what it would be is a petition that would get signed saying, we want to put this ordinance on the ballot for the voters' approval. It is a Charter power under Chapter 5. That is how it would appropriately get onto the general election ballot. Councilmember Barnette asked, in other words, if there was a group who wanted to go out and get a list of signatures and then place something on the ballot in 2016 on this very issue and let the people decide, is that a possibility. Wally Wysopal, City Manager,replied, they would still have to follow Statute 115 regardless. That is the State Statute that puts forth how an organized collection takes place. They would still have to go the first step and meet with the haulers exclusively. From some of the comments they heard, the public did not like that. The public did not have the public input before meeting with the haulers. Then Statute 115 says if Council does not like that, after the negotiations take place, for at least 60 days, then the Council can form this committee. The committee would then take up the issue and then he would think one of the ways you could end up with a vote would be if the committee recommended that. You would still have to go through that first phase of review and that is with the exclusive negotiations with the haulers. Otherwise, it would be outside of the Statute. Attorney Erickson replied, correct, and Mr. Wysopal appropriately described precursors where, you would have to set up the dominos so to speak to get to that point because otherwise you have issues with the haulers meeting together, that anti-competitive conduct, and so forth. The Statute sets up a safe harbor for them. The process in Statute 115A is an important process. She said she does not know that the public necessarily understands all of these, but that is the process they have to follow. It is very different than being a consumer and being able to go out and directly negotiate it. It is a process they have to follow. It is something that could not very easily, without that process, ever be put in front of the voters. FRIDLEY CITY COUNCIL MEETING OF JANUARY 5, 2015 PAGE 15 Councilmember Saefke stated he has absolutely no objection under the State Statute except for the fact that it is kind of backwards. He asked if a question could be put on the ballot asking if people were in favor of organized collection, and then go from there to avoid the State Statute. Attorney Erickson replied what that treads dangerously on is sort of a delegation of the City Council's power and responsibility to make those decisions in their capacity as representatives of their constituents. It is to a certain extent almost a poll. Councilmember Saefke stated the problem they are having is it seems there is almost an equal number of people opposed and for it. Councilmember Bolkcom stated they do not really know. Counilmember Saefke stated and that is why he wanted to ask the question. Councilmember Bolkcom asked but how is that any different from every time something comes in front of them, whether it be a special use permit or something for rezoning. You could have 10 people and they could be split, then you put everything on the ballot. Councilmember Saefke replied, no. It is different because this garbage collection affects everybody who has a residence in the City of Fridley. Whereas, usually an appeal, rezoning issue, or a variance it is one property owner or three property owners and it does not affect everybody. Mayor Lund stated they represent their constituency and they are doing the job they are elected to do. By letting it go to the voters, the issue drags on for a long time. It gets very heated a lot of times. A lot of people are too busy in their everyday lives to be well informed about a number of issues, and they rely on Council's to make those decisions they were elected to do. Mayor Lund stated what he is hearing from the City Attorney is they would have to start the process all over again under Statute 115. Attorney Erickson replied, that is correct. You are starting with a new set of negotiations, a new public hearing, all of that. It is a process that preempts their local Charter powers. If the City had gone forward and adopted a proposal, it would not be subject to the referendum or a recall. Much like the municipal planning act, it sort of sets the authority in State law and provides that process. Councilmember Saefke stated he wanted to make it perfectly clear the City staff did a stellar job in gathering information and providing true and accurate information for everybody who wanted it. 15. Informal Status Reports There were no informal status reports. FRIDLEY CITY COUNCIL MEETING OF JANUARY 5, 2015 PAGE 16 ADJOURN: MOTION by Councilmember Barnette to adjourn. Seconded by Councilmember Varichak. UPON A VOICE VOTE, ALL VOTING AYE, MAYOR LUND DECLARED THE MOTION CARRIED UNANIMOUSLY AND THE MEETING ADJOURNED AT 8:28 P.M . Respectfully submitted by, Denise M. Johnson Scott J. Lund Recording Secretary Mayor