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City Council - 02/19/2002 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL TUESDAY, FEBRUARY 19, 2002 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Sherry Butcher, Ron Case, David Luse, and Jan Mosman CITY STAFF: City Manager Carl Jullie, Parks & Recreation Services Director Bob Lambert, Public Works Services Director Eugene Dietz, Community Development and Financial Services Director Don Uram, City Planner Michael Franzen, City Attorney Ric Rosow and Council Recorder Jan Nelson Curielli I. ROLL CALL / CALL THE MEETING TO ORDER Mayor Tyra-Lukens called the meeting to order at 7:00 p.m. All members were present. II. PLEDGE OF ALLEGIANCE III. COUNCIL FORUM INVITATION Mayor Tyra-Lukens said the Council Forum has been modified as follows. Council Forum will be held the first and third Tuesday of the month from 6:30 – 7:00 p.m. in the Council Chamber. Please note that this portion of the meeting is off-camera. The Council Forum will consist of two parts: scheduled and unscheduled appearances. 6:30 to 6:50 p.m. is reserved for scheduled participants. If you wish to schedule time to visit with the City Council and Service Area Directors, please notify the City Manager’s office (at 952-949- 8412) by noon of the meeting date with your request. The last 10 minutes of the Forum, from 6:50 to 7:00 p.m. is set aside for impromptu, unscheduled appearances by individuals or organizations who wish to speak the Council. IV. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Butcher added Item X.C. FOLLOW-UP OF COUNCIL FORUM DISCUSSION REGARDING THE PERKINS/BERGELAND PROPERTY. Luse added Item XIII.A.2. and Tyra-Lukens added Item XIII.A.3. Tyra-Lukens added Item XII.A. APPOINTMENT OF COUNCILMEMBERS TO COMMITTEES. Jullie added Item VI.L. CLERK’S LICENSE LIST and removed Item X.B. HEARING REGARDING ISSUANCE OF PRIVATE KENNEL LICENSE. MOTION: Butcher moved, seconded by Case, to approve the Agenda as published and amended. Motion carried 5-0. V. MINUTES CITY COUNCIL MINUTES February 19, 2002 Page 2 A. CITY COUNCIL WORKSHOP HELD JANUARY 28, 2002 MOTION: Mosman moved, seconded by Case, to approve as published the Minutes of the City Council Workshop held January 28, 2002. Motion carried 4-0- 1, with Luse abstaining. B. SPECIAL CITY COUNCIL MEETING HELD JANUARY 28, 2002 Case said Page 3, Paragraph 3, Sentence 2 should be changed to “Our system views the non-selected candidates from a prior election as non-selected candidates.” He said Page 5, Paragraph 4, Sentence 1 should be changed to “Case said he could see advantages and disadvantages to asking the nominees whether or not they intended to run for office…” Mosman said Page 5, Paragraph 7 Sentence 1 and 2 should be changed to “…and someone who has not been attached to an issue. She thought perhaps her two nominees have been perceptually attached to one main project.” MOTION: Case moved, seconded by Butcher, to approve as published and amended the Minutes of the Special City Council Meeting held January 28, 2002. Motion carried 4-0-1, with Luse abstaining. C. CITY COUNCIL WORKSHOP HELD FEBRUARY 5, 2002 MOTION: Mosman moved, seconded by Butcher, to approve as published the Minutes of the City Council Workshop/Forum held February 5, 2002. Motion carried 4-0-1, with Tyra-Lukens abstaining. D. CITY COUNCIL MEETING HELD FEBRUARY 5, 2002 Luse said the second paragraph of Item C.4. on Page 17 should be the second paragraph of Item C.3 on Page 16. Because of that change, the vote on the motion for Item C.3. should be changed to: “Motion carried 3-0-1, with Luse abstaining.” The vote on the motion for Item C.4. should be changed to: “Motion carried 4-0.” Tyra-Lukens said the last sentence on Page 18 should be changed to: “Acting Mayor Case adjourned the meeting at 9:05 p.m.” MOTION: Mosman moved, seconded by Luse, to approve as published and amended the Minutes of the City Council meeting held February 5, 2002. Motion carried 5-0. VI. CONSENT CALENDAR A. HENNEPIN VILLAGE by The Pemtom Land Company. 2nd Reading for Planned Unit Development District Review with waivers on 28.3 acres, Zoning District Change from Rural to R1-9.5 on 10.3 acres and from Rural to RM-6.5 on CITY COUNCIL MINUTES February 19, 2002 Page 3 18 acres, and Site Plan Review in the RM-6.5 District on 18 acres. Location: South of Flying Cloud Airport, east of Eden Prairie Road, and north of Highway 212. (Ordinance No. 1-2002-PUD-1-2002 for PUD District Review and Zoning District Change and Resolution No. 2002-41 for Site Plan Review) B. AUTHORIZE PURCHASE OF MITEL SX-2000 EQUIPMENT FROM ESCHELON COMMUNICATIONS FOR THE COMMUNITY CENTER C. APPOINTMENT OF ASSISTANT WEED INSPECTOR D. AWARD BID FOR PURGATORY CREEK RECREATION AREA PARK GRADING TO VEIT COMPANIES E. APPROVE CERTIFICATE OF CORRECTION OF OAKPARKE ESTATES 3RD ADDITION F. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH HTPO, INC. FOR DESIGN AND CONSTRUCTION SERVICES FOR WATERMAIN ADJACENT TO TH 212, I.C. 02-5559 G. PARTIAL RELEASE OF LAND FROM SPECIAL ASSESSMENT AGREEMENT FOR BRAXTON WOODS 2ND ADDITION, S.S.A. 01-05 H. APPROVE RELEASE OF LAND FROM SPECIAL ASSESSMENT AGREEMENT FOR BRAXTON WOODS ADDITION, S.S.A. 00-04 I. ADOPT RESOLUTION NO. 2002-42 FOR SUBMITTAL OF APPLICATION FOR 2001 HENNEPIN COUNTY RESIDENTIAL RECYCLING FUNDING POLICY GRANT J. ADOPT RESOLUTION NO. 2002-43 SUPPORTING LEGISLATION PERMITTING USE OF SUPPRESSED WEAPONS FOR LOCAL GOVERNMENT APPROVED DEER MANAGEMNET PROGRAMS K. APPROVE CREDIT CARD PROCESSING SERVICES CONTRACT L. CLERK’S LICENSE LIST MOTION: Butcher moved, seconded by Mosman, to approve Items A-L of the Consent Calendar. Motion carried 5-0. VII. PUBLIC HEARINGS / MEETINGS VIII. PAYMENT OF CLAIMS Case asked about Check #1204 for $4.7 million for Utility Bonds Arbitrage. Dietz said those were the refunding bonds when we reestablished a new line of credit. CITY COUNCIL MINUTES February 19, 2002 Page 4 MOTION: Case moved, seconded by Butcher, to approve the Payment of Claims. The motion was approved on a roll call vote, with Butcher, Case, Luse, Mosman, and Tyra-Lukens “aye.” IX. ORDINANCES AND RESOLUTIONS X. PETITIONS, REQUESTS AND COMMUNICATIONS A. REQUEST FOR LEGISLATIVE ACTION TO APPROVE CONSTRUCTION FUNDING FOR NEW TH 212 IN 2004 (Resolution No. 2002-42) Jullie said Councilmember Mosman is a member of the Southwest Corridor Transportation Coalition (SWCTC). She will present the proposed resolution and review the strategy of the SWCTC to seek an advance in funding for TH 212 from 2011 to 2004. Mosman said that last fall the SWCTC elected her to be on the Board Directors. One of the specific tasks of the Board for this legislative session is to obtain money for the advanced construction date. She said this highway system will serve southwest Minnesota from the Twin Cities to the South Dakota border. She said the U.S. Congress has designated TH 212 as part of the National Highway System and MnDot has officially identified TH 212 as a critical “inter-regional corridor” in the state. Mosman said TH 212 now dead ends at County Road 4. She said MnDot has designated the project to construct TH 212 as the state’s top highway expansion project and the first to receive necessary state funding when such funding is available. Except for final design, the project is all ready to go, but it is not scheduled to start until 2011 because of insufficient state highway funding. All of the environmental surveys have been done and all of the right-of-way will have been acquired for the next phase of the project, extending TH 212 18 miles west of County Road 4. She noted delays in the project will make it more expensive to build. Mosman said the SWCTC board plans to meet with many legislators and representatives this month to lobby for advancing the funding to 2004. Representative Tom Workman, Chair of the House Transportation Committee, has introduced funding requests at the legislature this morning. She noted the letter that the Eden Prairie Chamber of Commerce has sent to legislators in support of resolving critical highway transportation needs in the Twin Cities metro area is included in the Council packet. Butcher asked how much funding is needed. Dietz said it is approximately $160 million. Butcher then asked if that amount would fund the entire project. Dietz said that would take it out to Cologne. Mosman noted they are still working on acquiring right-of-way from that point east into Eden Prairie. CITY COUNCIL MINUTES February 19, 2002 Page 5 MOTION: Luse moved, seconded by Case, to adopt Resolution No. 2002-44 requesting State Legislative action in 2002 to approve construction funding for new TH 212 in 2004. Motion carried 5-0. B. HEARING REGARDING ISSUANCE OF PRIVATE KENNEL LICENSE The appeal had been withdrawn. The license approval was included in Item VI.L. C. FOLLOW-UP OF COUNCIL FORUM DISCUSSION REGARDING THE PERKINS/BERGELAND PROPERTY Butcher said she was uncomfortable with the discussion we had during the Council Forum. She thought we need to have a dialogue about what we can do to bring some sense of closure for the residents who are asking for some resolution. She would like to know if there is anything we can do to make them feel right about it. Tyra-Lukens said she would like to have a resolution so that our intentions in 1999 were clear. Butcher thought we were trying to come to some decision based on what previous Councils had done. Tyra-Lukens noted the decision in 1999 was made on a 3-2 vote. Rosow said this is a hard question to answer. Last spring Mayor Harris, the City Manager and he met with property owner Perkins a number of times. They wanted to bring back something that would indicate movement on Mr. Perkins’ part. Rosow said those discussions led nowhere. He said the configuration of the land and the topography constrains development on the property. Rosow said the Council could review the decision of the Board of Adjustments & Appeals. He said the decision there was that Mr. Bergeland has court approval to rehabilitate the house. He would rather build a new house, which would be put a little farther back than the existing house. He said a new house might be there for many more years so the Council might want to review the decision to see if there wasn’t a better solution. Rosow said he was sure the owner of Lots 1 and 3 will come in asking for building permits for those lots with the argument that Mr. Perkins was granted the variance and he would be allowed to build. Rosow noted there were other variances granted, some of which have been used. Those variances that were used will go on in perpetuity. Rosow said the Council previously turned down Mr. Perkins’ request to take that provision out. That allows the problem to continue to exist with no new structures on Lots 1 and 3. He thought that with Lot 2 sitting in the middle there is no way to reconfigure unless lot 2 acquires either Lot 1 or Lot 3. Rosow said the Council will have to determine tonight whether to have a hearing to review the decision. CITY COUNCIL MINUTES February 19, 2002 Page 6 Luse said he was not up to speed on this issue and would like a chance to review the history on it. He thought this would be a precedent setting issue to go to 55 feet, and he would like to set this up for review so that it would come before us in the next 60 days. He realized this is a frustrating issue and has not had the consensus of the Council. Case was not sure, looking only at the Bergeland situation, if he would overrule the Board of Appeals decision. He noted that a year or so ago the gazebo issue slipped by us. This is very complicated today because the gazebo has been allowed to remain on the property. Because of that, he agreed with the others that this deserves another look. He thought what we do clearly impacts Mr. Perkins. MOTION: Case moved, seconded by Mosman, to call for a hearing on April 9, 2002, to review the Board of Appeals & Adjustments granting of a variance on the Bergeland property (Lot 2). Motion carried 5-0. XI. REPORTS OF ADVISORY BOARDS & COMMISSIONS XII. APPOINTMENTS A. APPOINTMENT OF COUNCILMEMBERS TO COMMITTEES Tyra-Lukens noted that Councilmember Luse should be included in some of the Council Board and Committee appointments. She suggested he be appointed to the City and School Facilities Use Task Force and the Building Assets Together committee. MOTION: Case moved, seconded by Butcher, to appoint Councilmember Luse to the City and School Facilities Use Task Force and to the Building Assets Together committee. Motion carried 5-0. XIII. REPORTS OF OFFICERS A. REPORTS OF COUNCILMEMBERS 1. Final City Manager Candidates Tyra-Lukens said Staff and Councilmembers met over the past weekend to interview six final candidates for the City Manager position. She said there were three rounds of interviews that focused around questions developed by professionals in the City Manager interview process. She noted the Council had discussion on the candidates at the Workshop session earlier this evening. Tyra-Lukens asked for nominations for two or three finalists. Case nominated Steve Mielke. Mosman nominated Mike McGuire. CITY COUNCIL MINUTES February 19, 2002 Page 7 Luse nominated Scott Neal. MOTION: Case moved, seconded by Butcher, to select Steve Mielke, Mike McGuire, and Scott Neal as finalist City Manager candidates to continue in the selection process. Motion carried 5-0. 2. Luse – Task Force to Develop Celebration and Appreciation of Acting City Manager Jullie Luse said he would be willing to head up a task force or committee to work on doing something to show our appreciation for Mr. Jullie’s returning to take on the role of Acting City Manager. Luse said Jullie has done a fabulous job and he would like to celebrate that. 3. Tyra-Lukens – Goals for the Year Tyra-Lukens said she missed the last Council meeting and wanted to present her four goals for the coming year. a. Enhance the climate for business growth. The business community provides jobs for our residents and opportunities to shop and recreate in the city. Partnerships with the business community will help us to stay focused on the needs of this essential part of our community and enable us to attract and retain businesses. We need to encourage groups such as Habitat for Humanity and encourage Chamber and City working relationships. We should develop innovative ideas for economic development. b. Review our strategic plan and goals for the future. We have two new Council members who have not participated in this process. The timing for this should probably be after the new City Manager starts. c. Focus on city communications. The results of the MAC negotiations need to be communicated carefully and clearly. We should launch the web site as soon as possible. The positives about the city are abundant and need to be stressed. We should hold town meetings on a variety of topics of interest to the community, with each of the service area directors working with the Council to bring forth one topic for each meeting. d. Stress innovation and responsiveness. We should be innovative in our approach to problem solving, especially budget cuts. We need to be responsive to the needs of our citizens. By continuing to build partnerships with the community, the school district and resident and community organizations, we can keep abreast of needs and concerns. All Councilmembers and Staff should share in this effort to determine what the needs are before they become problems. CITY COUNCIL MINUTES February 19, 2002 Page 8 Tyra-Lukens said the Council will review the goals of Councilmembers and Staff at the March 19 meeting. B. REPORT OF CITY MANAGER C. REPORT OF PARKS AND RECREATION SERVICES DIRECTOR 1. Birch Island Woods – Industrial Parcel Lambert said a few months ago the Council authorized staff to enter into discussions with Hennepin County to purchase a 4.4-acre parcel of surplus land for future development. He said before staff got to the initial discussions with the County, Midwest Asphalt came to us with their interest in purchasing the property. Lambert said the issue becomes the fact that we would require Midwest Asphalt to remove all of their stockpile that has encroached on the property for many years and to clean up the property. He said their interest in the property is not only for future development, but also to continue using the property. Lambert said staff thought it was incumbent upon them to bring the offer to the Council before we went into negotiation of the purchase agreement with the County. He said staff is asking the Council for authorization to either negotiate with the County to buy the property or to let Midwest Asphalt have it. Case asked if it would be possible to keep a 30-foot buffer if we do buy the property and keep it for a period of time. He was especially concerned that the City keeps the ridge with trees out of the sale. Lambert said we would be left with an unusable piece of property if we sold it with that piece reserved. Uram said he thought this is an opportunity we need to take advantage of because we will be in a stronger negotiating position if we purchase the property than if we let Midwest Asphalt purchase it. He said we have looked at this piece two or three times in the past. He said our goal is to redevelop the site beginning with a request to Midwest Asphalt to move off the site. Luse had concerns that relate to the process of this becoming available and that being the only potential ownership outside of the city ownership. He would like to be able to use funding other than tax dollars so the question becomes can we get comfortable with that potential ownership with a legal contract that would be enforceable. Uram said this situation is similar to the Birch Island Woods purchase. He thought this is a relatively cheap deal for Eden Prairie. He noted this site is located within the area for the redevelopment of Eden Prairie Center and CITY COUNCIL MINUTES February 19, 2002 Page 9 TIF funding from that could be used to purchase the site and it is blighted property. Mosman asked about the possibility of lowering the price and whether there is any pollution from the material put there by Midwest Asphalt. Lambert replied that if the City acquires the property the price is not negotiable assuming we will have full use of the property. The price was determined by an appraisal done on that parcel and Birch Island Woods and we would agree on that price. If the property goes on the market, then it is anybody’s guess what the price will be. It would be a sealed bid process and Midwest Asphalt might not get it. Lambert said the only way to ensure that we have control is to acquire it. Rosow said the County wouldn’t sell the property to Midwest Asphalt. They will put it up for sale. If the City buys it, we are subject to the same rules in that we can’t just pick our buyers. We would need to ensure that we get the highest possible price for the property. There is no guarantee that Midwest Asphalt would get it in the process. The City’s process is that the city would acquire the property and then the decision is made whether to start negotiations with Midwest Asphalt, understanding that others might come into the process with a bid. Rosow said with respect to any pollution on the property, a Phase I Environmental Study was done on the other parcel, and we probably would have one done on this. We would also want to investigate the circumstances of their encroachment on the property. He said the normal rule is that you can’t take adverse possession of a government property. He did not know how long the County has had the property, but those are some of the things we would have to research. Case said he favored our purchase of the property. He wanted to underscore his point that he would like to see the small area with trees survive, assuming we could specify that in the redevelopment process. He was not sure he followed why we would sell it to Midwest Asphalt at all if our goal was to be part of the next redevelopment process. He asked if we would then lease it back to Midwest Asphalt. He would think we might want to lease it to Midwest Asphalt in order to get some of our purchase price back. He would definitely want to see the buffer piece retained. Rosow said there have been discussions with Midwest Asphalt about the length of time they would want the property. We asked about the end date for the use of the asphalt plant, and they said it would be a long time. Case said he thought our purchase and short-term lease would drive that timing. Lambert said the only reason this item is on the agenda tonight is that they came to us, and staff felt obligated to bring it to the Council. He said staff still believes we should acquire the parcel, and we can always negotiate CITY COUNCIL MINUTES February 19, 2002 Page 10 with Midwest Asphalt down the line. We still think it makes good financial sense for the City to control the future redevelopment of the site. He said staff would strongly recommend that Midwest Asphalt move their stockpiles off the site as soon as possible. Luse said he realized ultimately we have to buy it from the County. On the other hand, if we have an option agreement or some kind of iron-clad contract with Midwest Asphalt for a period of time we are comfortable with, that would be the way to go in order to get back our public dollars for the acquisition and the costs associated with the contract for deed. Butcher thought it makes sense for the City to purchase the property. She was worried about what might be on the property in terms of the potential pollution. Rosow said we would know the answer to the pollution question before we purchase the property. We would make the purchase subject to the Phase I study. He said this agenda item was only to make the Council aware that someone else was interested in funding the purchase. Lambert said he was hearing that we should proceed with the purchase agreement with Hennepin County and during that process we will require a Phase I study and background research. That will take at least 90 days and, in the meantime, we will have some discussions with Midwest Asphalt so that when we have completed the negotiations with Hennepin County we will have all of the knowledge about the property at that time. Case said he was not in agreement with the idea that we ought to be headed toward a negotiated sale. He was not in agreement that, if we can negotiate with Midwest Asphalt regarding the potential for clean up and lease to them, we will join with them in some redevelopment phase. He was not in agreement with selling to them. Luse thought we should not go into the negotiations without the option to sell to Midwest Asphalt on the table. It is an agreement that comes about quite often in the private sector. Midwest Asphalt is very motivated, and he thought we should lease to them and then bring it back to determine what is the best use of public dollars. He believes that in the end we cannot lose control of the property. Case said it is just a question of time when the public dollars come back to us. He was more concerned that we are sending staff away with the idea that they should negotiate some sale or the idea of a sale. Lambert said there is no reason for us to negotiate with Midwest Asphalt unless we buy the property. He said the first step is to acquire the property, and the Council can decide now or later whether you want to talk to Midwest Asphalt about this. In the interim if they come back with an offer you can’t refuse, we will bring that back. We cannot accept an offer until CITY COUNCIL MINUTES February 19, 2002 Page 11 after we acquire the property anyway. Butcher thought it makes absolute sense to acquire the property. If we are doing negotiating, we might want guidelines because she was not sure we are all on the same page. The guidelines would determine what conditions must exist if we are going to sell to someone else. If we have this conversation again, we need to figure out what the guidelines are. MOTION: Luse moved, seconded by Case, to authorize City staff to negotiate with Midwest Asphalt the terms of the sale of the 4.4-acre industrial site, referred to as Parcel B in the appraisal, for the purpose of holding that parcel for redevelopment. Rosow said if we go that direction we should probably take Midwest Asphalt out of the motion because it should be an open sale. Case was concerned that we are jumping way ahead. He was not sure this redevelopment piece would happen for another decade. He didn’t know if we will have to hold it for ten years, but he felt an urgency in the motion to get rid of it. He didn’t think the motion is necessary tonight. He knew we have to buy the property and have discussion with Midwest Asphalt, but he thought we should get back together and set some guidelines for the deal we might expect. Mosman noted in January we said go ahead and purchase the property, and we thought it was a good price. What worried her is that Midwest Asphalt is named in the motion. She thought we were discussing having it as a conservation easement to visibly protect the park across the street. She would like to feel that we weren’t being rushed, and we don’t have to sell it in a year or so. Jullie said the whole idea was to put the item on the agenda to explore. He said it would be a way for us to avoid laying out a sum of cash for the property. While it would not hurt to talk to them, we need to proceed with the purchase of the property. He thought we could certainly get word to Midwest Asphalt the goals we want to accomplish in the sale of the property, and if something comes of that process staff will bring it back to the Council. Luse said the City should control the property and we ought to look at all redevelopment of this property. Luse withdrew the motion with the consent of Case. D. REPORT OF COMMUNITY DEVELOPMENT AND FINANCIAL SERVICES DIRECTOR E. REPORT OF PUBLIC WORKS SERVICES DIRECTOR CITY COUNCIL MINUTES February 19, 2002 Page 12 F. REPORT OF PUBLIC SAFETY SERVICES DIRECTOR G. REPORT OF MANAGEMENT SERVICES DIRECTOR H. REPORT OF CITY ATTORNEY XIV. OTHER BUSINESS A. CLOSED SESSION ON POTENTIAL LITIGATION XV. ADJOURNMENT MOTION: Mosman moved, seconded by Butcher, to adjourn the meeting. Motion carried 5-0. Mayor Tyra-Lukens adjourned the meeting to a closed session at 8:05 p.m.