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City Council - 12/17/2002 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL TUESDAY, DECEMBER 17, 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 Scott Neal, Parks & Recreation Director Bob Lambert, Public Works Director Eugene Dietz, Management and Budget Director Don Uram, City Planner Michael Franzen, City Attorney Ric Rosow and Council Recorder Peggy Rasmussen I. ROLL CALL / CALL THE MEETING TO ORDER Mayor Tyra-Lukens called the meeting to order at 7:07 p.m. Tyra-Lukens expressed her thanks to Councilmember Luse for serving on the Council this year. Luse said it had been a tremendous opportunity. He stated that Eden Prairie is a great City and he admires the way it is being run. Tyra-Lukens thanked her fellow Councilmembers for their work and for appointing her to fill out the term of Mayor Jean Harris. This year has seen a lot of transition, with a new city manager, human resources director, police chief and fire chief. It has been a busy year, with the Council considering many time-consuming matters, among them a smoking ordinance, negotiations with the Metropolitan Airports Commission, and LRT. II. PLEDGE OF ALLEGIANCE III. COUNCIL FORUM INVITATION Tyra-Lukens stated the Council Forum is 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 consists of two parts: scheduled and unscheduled appearances, with 6:30 to 6:50 p.m. reserved for scheduled participants. If you wish to schedule time to visit with the City Council and Department 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 to the Council. IV. BOND SALES A. BOND SALE OF $3,185,000 GENERAL OBLIGATION REFUNDING BONDS (REFUNDING OF 1992A & 1993A PARK BONDS) SERIES 2003A (Resolution No. 2002-187) CITY COUNCIL MINUTES December 17, 2002 Page 2 Neal introduced Paul Donna, from Northland Securities, who explained that two resolutions are being considered awarding the issuance and sale of refunding bonds. The first is for $3,185,000 in General Obligation Refunding Bonds, Series 2003A; and the second is for $2,710,000 in General Obligation Refunding Bonds, Series 2003B. As is customary with the City’s bond issues, the City applied to Moody’s Investment Service for a credit rating on the bonds. Moody’s affirmed the City’s Aa1 rating. This rating is based on a substantial and diversified tax base, low amount of rapidly amortized debt and a well-managed financial operation. Moody’s believes that the City’s substantial tax base will continue its trend of strong growth as a result of recently completed and planned commercial and industrial development, in addition to the strong residential housing growth. Moody’s anticipates the City’s debt burden will decline, given low future borrowing needs and expected future tax rate growth. The overall debt burden (including Hennepin County and ISD 272) is just below the average of 2.9 percent. The City’s direct debt burden is very low at 0.6 percent. Moody’s expects the City’s financial position to remain strong due to a history of strong financial management, as demonstrated by operating results that consistently outperform the conservatively budgeted figures. In the discussion with the representative from Moody’s, significant attention was paid to the financial policies the City has in place, all of which contribute to the Aa1 rating. There are seven cities in Minnesota that have Aa1 ratings, and only five have AAA ratings. To achieve a AAA rating, the representative from Moody’s indicated that they would like to see the City mature more from a development standpoint. Donna said the Series 2003A bonds combine two outstanding bond issues. With the winning bid awarded with an average coupon rate of 3.3%, the City will save $524,918 in interest on that bond issue. Donna recommended awarding the sale of the Series 2003A bonds to the low bidder, U.S. Bancorp Piper Jaffray. MOTION: Butcher moved, seconded by Case, to adopt Resolution No. 2002- 187 relating to $3,185,000 General Obligation Refunding Bonds (Refunding of 1992A and 1993A Park Bonds), Series 2003A. Motion carried 5-0. B. BOND SALE OF $2,710,000 GENERAL OBLIGATION REFUNDING BONDS (REFUNDING OF 1993C BONDS) SERIES 2003B (Resolution No. 2002-188) The purpose of this refunding bond issue is to refund a portion of the $6,735,000 General Obligation Water and Sewer Refunding Bonds, Series 1993C, for interest cost savings. Proceeds of this bond issue will be used to pay off the principal balance of the 2004-2008 maturities totaling $2,665,000. The average outstanding coupon rate for the bonds to be refunded is 5.622%. The average CITY COUNCIL MINUTES December 17, 2002 Page 3 coupon on the new bonds is 3.06%. The total net savings is $243,925 with a net present value debt service savings of $217,748. Donna recommended awarding the sale of Series 2003B bonds to the low bidder, Cronin and Company. Refunding these bonds in addition to calling two other bonds will save the City about $1,120,948 in total interest costs over the next 10 years. MOTION: Case moved, seconded by Mosman, to adopt Resolution No. 2002- 188 relating to $2,710,000 General Obligation Refunding Bonds (Refunding of 1993C Bonds), Series 2003B. Motion carried 5-0. V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Neal added Item 2 under XIV.C. REPORT OF PARKS AND RECREATION DIRECTION, a resolution accepting a land donation to the City. Neal also added Item 1 under XIV.B. REPORT OF CITY MANAGER, concerning his six-month performance review. Neal asked to remove Item 1. Habitat for Technology, under XIV.H. REPORT OF MANAGEMENT AND BUDGET DIRECTOR, because Habitat for Technology has asked to withdraw its grant request at this time. Luse requested the item be left on the agenda in order to raise specific questions and present some concerns he has relating to this subject, so they become part of the record. MOTION: Mosman moved, seconded by Luse, to approve the agenda as amended. Motion carried 5-0. VI. MINUTES A. TRUTH-IN-TAXATION HEARING, DECEMBER 2, 2002 MOTION: Mosman moved, seconded by Luse, to approve the minutes of the Truth-In-Taxation Hearing held on December 2, 2002, as published. Motion carried 5-0. B. COUNCIL WORKSHOP HELD DECEMBER 3, 2002 MOTION: Case moved, seconded by Butcher, to approve the minutes of the Council Workshop held December 3, 2002, as published. Motion carried 5-0. C. CITY COUNCIL MEETING HELD DECEMBER 3, 2002 MOTION: Butcher moved, seconded by Mosman, to approve the meeting of the City Council held December 3, 2002, as published. Motion carried 5-0. VII. CONSENT CALENDAR A. CLERK’S LICENSE LIST CITY COUNCIL MINUTES December 17, 2002 Page 4 B. ADOPT RESOLUTION NO. 2002-189 APPROVING FINAL PLAT OF BLUFF COUNTRY TOWNHOMES 10TH ADDITION C. ADOPT RESOLUTION NO. 2002-190 REGULATING FEES AND CHARGES FOR BUSINESS LICENSES, PERMITS AND MUNICIPAL SERVICES D. ADOPT RESOLUTION NO. 2002-191 AUTHORIZING CALL OF CERTAIN OUTSTANDING G.O. IMPROVEMENT BONDS, SERIES 1993B E. ACKNOWLEDGEMENT OF LEASE TERMINATION WITH ROSEMOUNT, INC. AND CONVEYANCE OF QUIT CLAIM DEED F. DECLARE COMPUTER EQUIPMENT AS SURPLUS AND AUTHORIZE CITY MANAGER TO DISPOSE OF PROPERTY THROUGH PUBLIC SALE G. ADOPT RESOLUTION NO. 2002-192 TO PETITION RILEY- PURGATORY-BLUFF CREEK WATERSHED DISTRICT FOR RILEY & RICE MARSH LAKE WATER QUALITY IMPROVEMENT PROJECT H. APPROVE CHANGE ORDER NO. 1 FOR BRYANT LAKE DRIVE TRAIL PROJECT TO DMJ COPRORATION, I.C. 00-5514 I. ADOPT RESOLUTION NO. 2002-193 RECEIVING 100% PETITION FROM NORTH AMERICAN PROPERTIES FOR TRAFFIC SIGNAL IMPROVEMENTS FOR SOUTHWEST STATION, I.C. 03-5590 J. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH SRF FOR SOUTHWEST STATION TRAFFIC SIGNAL IMPROVEMENTS, I.C. 03- 5590 K. APPROVE CHANGE ORDER NO. 1 FOR EMERGENCY VEHICLE PREEMPTION SYSTEM, I.C. 01-5541 L. APPROVE CHANGE ORDER NO. 1 FOR PIONEER TRAIL AND TH 212 UTILITY IMPROVEMENTS, I.C. 52-204 M. APPROVE CHANGE ORDER NO. 1 FOR GLENSHIRE ADDITION WETLAND MITIGATION IMPROVEMENTS, I.C. 98-5467 N. APPROVE CHANGE ORDER NO. 2 FOR CHARLSON AREA IMPROVEMENT – PHASE II FROM INGRAM EXCAVATING, I.C. 02- 5564 O. AWARD CONTRACTS FOR MAINTENANCE AND WATER TREATMENT CHEMICALS FOR 2003 CITY COUNCIL MINUTES December 17, 2002 Page 5 P. AUTHORIZE ACQUISITION OF WETLAND CREDITS Q. ADOPT RESOLUTION NO. 2002-194 CERTIFYING THE 2003 PROPERTY TAX LEVY AND APPROVE 2003 BUDGET MOTION: Butcher moved, seconded by Case, to approve Items A-Q of the Consent Calendar. Motion carried 5-0. VIII. PUBLIC HEARINGS / MEETINGS A. UPDATE OF PARK AND OPEN SPACE SYSTEM PLAN Neal said official notice of this public hearing was published in the December 8, 2002, Star Tribune and the December 12, 2002, Eden Prairie News. The Parks, Recreation and Natural Resources Commission approved the plan at its November 4, 2002 meeting. The Planning Board approved the Park and Open Space System Plan at their November 25 meeting. Upon approval of the draft by the City Council, it will be forwarded for review to the Metropolitan Council and to the communities surrounding Eden Prairie. Upon review and approval by the Metropolitan Council, the City Council will approve the final plan in April. At that time staff will order printing of the final approved copies. The Council discussed this item at a Council Workshop four weeks ago. Lambert said the Friends of Birch Island Woods did an excellent job of reviewing the draft of the updated plan. The group submitted comments and suggested amendments to the plan in a letter dated November 12 and in a November 16 letter. Most recommendations clarify descriptions or supplement the information in the plan. On page 6 in the November 12 letter from Friends of Birch Island Woods, the group recommended changing the terminology from a “Living Farm” to a “Living History Farm”, and to add several farms to it. On page 8, under Chapter 6, there is a question from the group as to whether or not the City wants to include water resources in this document. Lambert said the City is in the process of developing its own wetland plan, and information on water resources will be included. Therefore, he did not want to get into a lot of detail on water resources in the Park and Open Space System Plan. On page 10 of the letter, there is a question on whether any funds have been designated to improve the entry to Birch Island Park from County Road 4. Lambert said the answer is that the City does not have any designated funds. In the November 16 letter, on page 4 of the recommendations, is the question “Should Minnesota Land Trust conservation easement on the Enblom property and the City’s conservation easement on land in use for the Heights and Valley View complex be figured into this area’s profile?” Lambert said this document does not list private property owners’ own easements they may have with CITY COUNCIL MINUTES December 17, 2002 Page 6 Minnesota Land Trust. The City would not have any way of tracking all this. The City’s own conservation easements will be listed, however. On page 6 of that letter, is a good suggestion to include additional information on an entry to the Purgatory Creek Recreational Area. Lambert said a detailed map of the entry itself should be included. In answer to the question in the last paragraph on page 6, there are some entry points at this time. He will add a sentence that was suggested about the pristine quality of the woods. On page 7 there is quite a bit of information that includes a suggestion for the City to have a woods-keeper. The Parks Commission said the City ought to consider that. However, he didn’t believe it would be appropriate to put it in the Park and Open Space plan, which deals with planning sites and land use, because that is an operational question. On page 8, under “Cross-country Ski Trails”, about developing future cross- country ski areas, Lambert recommended adding Edenvale Conservation Area, but not the Birch Island Park, the Woods and Glen Lake Golf Course area. Lambert said he would not recommend adding a ski trail without first having a conversation with the people who own or lease the land in question. Lambert said he would support all the recommendations in those 18 pages, other than those exceptions he mentioned. Mayor Tyra-Lukens asked if anyone wished to address the Council on this plan. Jeff Strate, 15021 Summerhill Drive, said comments from the Friends of Birch Island Woods were submitted as the normal part of the process for reviewing comprehensive plans for parks and open spaces. Because a number of those in the group know quite a bit about northern Eden Prairie, the City helped them get a copy of the draft plan, and they reviewed it over the past number of days. The Metropolitan Council’s decisions for planning are based on documents like this. He recommended that people read it because the City has done a great job on its parks and recreation systems. However, the group believed that conservation areas like Riley Creek, Prairie Bluff, Birch Island Woods and Edenvale needed a more complete profile so the Metropolitan Council knows what is going on there. They hope many of their suggestions will be accepted. Mayor Tyra-Lukens thanked the Friends of Birch Island Woods for reviewing the report. Mike McGraw, 15640 Pioneer Trail, said he wanted to bring up the matter of air pollution on the Staring Lake Park trail. When jet planes take off from the airport and the winds are out of the south, particularly on warm days, there is a cloud of smog from the jet fuel that settles in the trees and stays there. He rides his bike around the trail and has suffered from burning eyes and headaches as a result of the smog. CITY COUNCIL MINUTES December 17, 2002 Page 7 On the Internet he found information about air-pollution standards, and pollution from jet planes is more serious than he had thought. When jets take off, 90 gallons of fuel are burned per hour. More jets landing at the airport will cause more pollution. He recommended monitoring the air down on the trail. Mayor Tyra-Lukens thanked Mr. McGraw for bringing this matter to their attention. They will ask Scott Kipp to look into it. MOTION: Case moved, seconded by Butcher, to close the public hearing and approve the draft of the Eden Prairie Park and Open Space System Plan dated October 2002, including changes recommended by the Parks, Recreation, and Natural Resources Commission, and changes recommended by the Friends of Birch Island Woods supported by staff. Motion carried 5-0. B. GUIDE PLAN UPDATE – AIRPORT CHAPTER OF THE COMPREHENSIVE GUIDE PLAN Neal said official notice of this public hearing was published in the December 8, 2002, Star Tribune and the December 12, 2002 Eden Prairie News. This is for adoption of the Airport Element and Aviation Goals of the Comprehensive Guide Plan. Action on the Resolution to adopt the Airport Element and Aviation Goals will take place under the Ordinances and Resolutions portion of the agenda. The Community Planning Board voted 9-0-to recommend approval of the Airport Element and Aviation Goals to the City Council at the May 13, 2002 meeting, subject to the City Council and Metropolitan Airports Commission (MAC) entering into a final agreement. Franzen reported that the Comprehensive Guide Plan is required by State law. Chapter 6 is the Airport Element and contains information required by the Metropolitan Council. Chapter 2 covers the Aviation Goals of the City, air space and design of future buildings. Mayor Tyra-Lukens asked if anyone wished to address the Council on Chapter 6. No one did. MOTION: Butcher moved, seconded by Mosman, to close the public hearing on the Airport Element and Aviation Goals of the Comprehensive Guide Plan Update. Motion carried 5-0. IX. PAYMENT OF CLAIMS MOTION: Case moved, seconded by Mosman, to approve the Payment of Claims. The motion was approved on a roll call vote, with Butcher, Case, Luse, Mosman, and Tyra-Lukens voting “aye.” X. ORDINANCES AND RESOLUTIONS CITY COUNCIL MINUTES December 17, 2002 Page 8 A. RESOLUTION NO. 2002-195 ADOPTING FINAL AGREEMENT BETWEEN THE CITY AND MAC REGARDING EXPANSION OF FLYING CLOUD AIRPORT; RESOLUTION NO. 2002-196 REPEALING RESOLUTIONS 88-299 AND 92-124 AND RESOLUTION NO. 2002-197 ADOPTING CHAPTER 6 AIRPORT ELEMENT AND AMENDMENTS TO AVAIATION GOALS SECTION OF CHAPTER 2 OF THE 2002 COMPREHENSIVE GUIDE PLAN UPDATE Neal stated the City and MAC have been negotiating the terms of an agreement (the Final Agreement) respecting the expansion of the Flying Cloud Airport. The Final Agreement allows the expansion to proceed subject to mandatory and voluntary restrictions upon operations. The Final Agreement requires the amendment of Ordinance 51, the imposition of mandatory and voluntary restrictions upon airport operations and remedies for violation or breach of the agreement. The Final Agreement is contingent upon MAC adopting an amendment to Ordinance 51 and Eden Prairie repealing Resolution 88-299 and Resolution 92-124 and amending the City Comprehensive Guide Plan chapter regarding the Airport. Representatives of the City and MAC negotiated a Memorandum of Understanding (MOU) which was adopted by both the Metropolitan Airports Commission and the City Council. Pursuant to the MOU, the parties negotiated the terms of a Final Agreement regarding the expansion of the Airport and restrictions on airport operations. Rosow said there are three resolutions; the first approving the Final Agreement, the second repealing Resolutions 88-299 and 92-124, and the third adopting Amendments to Chapter 2 of the 2002 Comprehensive Guide Plan Update and adopting Chapter 6 – Airport Element. Two years ago it was recommended the City hire special legal counsel with expertise in the area of airport and aviation law. A firm was hired, of which David Reimer is a member. The City Council decided it was in the City’s best interest to negotiate with MAC. In December 2001 the framework of the Final Agreement was set in a Memorandum of Understanding (MOU). The Final Agreement was approved December 16, 2002 by the Metropolitan Airports Commission. A second MOU was negotiated regarding expansion improvements and other items that need to be resolved between the two parties. Special legal counsel Dan Reimer explained what has happened over the course of the past two years. In the fall of 2000, the issues the City had with MAC were expansion of the Flying Cloud Airport, potential repeal of Ordinance 51, and replacement of mandatory restrictions with voluntary restrictions only. Litigation was being considered. However, the City Council decided that the City would try to work out a negotiated agreement with MAC. A series of discussions followed between representatives from the City and MAC. Mayor Jean Harris and Councilmember Ron Case represented the City and Commissioners Coral Houle and Dan Fortier represented MAC. The discussions resulted in the Memorandum of Understanding approved in December 2001. It provided the framework for an enforceable agreement. That agreement has been negotiated in a series of conversations with MAC and the FAA, with significant support from members of CITY COUNCIL MINUTES December 17, 2002 Page 9 City staff and senior members of MAC’s staff. At the time the Council was considering the MOU, Reimer told members of the Council that the FAA would be a critical part of this agreement. Their approval, explicit and implicit, was essential to getting this done. Representative from the City and the MAC met with the FAA in January 2002, and have had continuing discussions throughout the year. Their concerns had to be addressed, which was a difficult and time-consuming task. The ability to limit Stage 2 aircraft was a challenge and took a number of months. The parties arrived at the conclusion that the alternative they have in the agreement was the best way to achieve it. A considerable amount of time was spent looking through other issues that were part of the bigger picture, including infrastructure and parks. Reimer described the terms and conditions of the Final Agreement. The agreement contains a number of limits and restrictions. The focal point is imposition of mandatory limits on aircraft, airport operations and noise, restrictions on aircraft weighing more than 60,000 pounds and prohibition of nighttime run-ups. • Stage 2 operations will be discouraged on a voluntary basis. MAC will take action to convert the measure into a mandatory prohibition on Stage 2 aircraft operations if the number of departures from the airport by Stage 2 aircraft exceeds 75 in any one-year period. • MAC will not increase the strength of the runway pavement nor will runway length be increased beyond what is proposed in the planned expansion project, from the current 3,900 to 5,000 feet, unless required to do so by state law. • Ordinance 51 will be amended to prohibit operations by aircraft weighing more than 60,000 pounds. • A voluntary curfew to discourage nighttime operations will be adopted. MAC will also seek to implement other voluntary measures to reduce early morning noise from aircraft (between 6 and 7 a.m.). • Maintenance run-ups of planes between 10 p.m. and 7 a.m. will be prohibited. • MAC agrees to test certain houses in Eden Prairie near the airport to determine the level of “noise attenuation.” MAC will develop a sound insulation program for any house that does not meet noise standards. As part of the final agreement Reimer said the City will not oppose or challenge the proposed expansion project. However, this agreement deals with future growth of the airport and does not constitute approval of expansion by the City. Any requests for building permits or zoning compliance would come at a future time. It is important to realize this is not closing a chapter. Some things will be coming up in the future and should be done, including educating the community about the terms of the Final Agreement. He recommended making that information available on the City’s Web site and in its upcoming newsletter. MAC will publish the new rules on the airport. Regulations such as maintenance run-ups and voluntary restrictions on Stage 2 airplanes would go into effect immediately. In future actions, it is possible others might step in and raise challenges to the Final Agreement and the City or MAC might have to defend CITY COUNCIL MINUTES December 17, 2002 Page 10 those challenges. Mayor Tyra-Lukens said coming to a final agreement took a long time. Eight years ago, when she was elected to the Council, the airport was an issue then. The City has dealt with it for 15 years. She commended the special legal counsel, Dan Reimer, the City attorney, Ric Rosow, City manager, Scott Neal, former Mayor Harris, and current Councilmembers. She also thanked Zero Expansion, which kept the issue in the forefront of the City’s attention. She thanked the Chamber of Commerce president who spoke in favor of the agreement. She commended the chairman of the Flying Cloud Airport Commission, Mr. Heffelfinger, for the effort he put into his work on the commission. Luse said Zero Expansion started the political ground swell that has been such a benefit to the community. MAC stepped forward to become a good negotiator and conducted itself well. Luse has been on the Council for the past ten months of the negotiations. He said FAA has been a major obstacle. The City has had great legal help, as well as strong staff support. A lot of people have done a wonderful job for the residents. Mosman said one reason she ran for a seat on the City Council two years ago was her opposition to the expansion of the airport. She thought about what could go wrong and what could be done to save the City from that. Because of this agreement, she believed every minute and dollar has been very well spent. She asked Reimer if this is a good agreement for the City of Eden Prairie. Reimer replied he believed it was a good agreement because the City identified its objectives and stuck with them. It is important to recognize this was a negotiated agreement. At first both parties appeared to have mutually exclusive goals. At the same time, they were able to come together and reach something of significant value to everyone. Case said he believed this is a momentous occasion and an extremely important one, but not a glorious one. It won’t rid the City of the airport, but will give the City legal assurances and the airport will not drastically change in its character. Some people representing MAC were a positive influence in arriving at goals, especially Tim Anderson, Deputy Director of Airport Operations for MAC. He is also an Eden Prairie resident. Case found him to be invaluable to have on the MAC side, and also Coral Houle, former mayor of Bloomington and one of two MAC commissioners involved in the negotiations. She assisted often in clearing communication channels. Case said he and Mayor Harris represented the City, and this was his last formal participation with her in a project. This agreement is a premier example of good government at work. Rosow said an important aspect of the agreement is that what the City was able to obtain through this agreement would not have been possible through litigation. It was good for the City. CITY COUNCIL MINUTES December 17, 2002 Page 11 MOTION: Mosman moved, seconded by Case, to adopt Resolution No. 2002- 195 approving Final Agreement between the City of Eden Prairie and the Metropolitan Airports Commission. Motion carried 5-0. MOTION: Case moved, seconded by Mosman, to adopt Resolution No. 2002- 196 repealing Resolutions 88-299 and 92-124. Motion carried 5-0. MOTION: Butcher moved, seconded by Mosman, to adopt Resolution No. 2002- 197 adopting Chapter 6 - Airport Element and Amendments to the Aviation Goals Section of Chapter 2 of the 2002 Comprehensive Guide Plan Update. Motion carried 5-0. B. MEMORANDUM OF UNDERSTANDING CONCERNING CO- OPERATIVE SOLUTIONS TO INFRASTRUCTURE, RIGHT-OF- WAY/EASEMENT AND PARK NEEDS BETWEEN THE CITY AND MAC REGARDING FLYING CLOUD AIRPORT (Resolution No. 2002-198) The City and MAC have been negotiating the terms of a Memorandum of Understanding regarding infrastructure, right-of-way/easement and park needs. The negotiations grew out of discussions between former Mayor Jean Harris and Jeff Hamiel, Executive Director of the Metropolitan Airports Commission, who met in the fall of 2001 and agreed upon the framework for resolution of a variety of issues between the City and MAC. The Infrastructure MOU addresses a significant portion of the issues identified by the Mayor and the Executive Director of MAC. MOTION: Luse moved, seconded by Mosman, to adopt Resolution No. 2002- 198 approving Memorandum of Understanding concerning cooperative solutions to infrastructure, right-of-way easement and park needs between the City of Eden Prairie and the Metropolitan Airports Commission regarding Flying Cloud Airport. Motion carried 5-0. Coral Houle addressed the Council. She said on behalf of MAC, the staff and the commission, they are very pleased that this point has been reached. However, they have been concerned about the recent issues raised by Northwest Airlines. She extended congratulations and thanked everyone on the City Council and staff for all of their hard work and commitment. Kim Vohs said he wanted to speak on behalf of Zero Expansion and express thanks for the hard work. Zero Expansion feels very good about the agreement. They would have preferred to see Ordinance 51 stand but learned it was not legally possible. He hoped the FAA would sign off on the agreement. He thanked the Councilmembers and others who have been a part of this. Tom Heffelfinger, former chair of the Flying Cloud Airport Advisory Commission, said Gary Schmidt should be acknowledged and commended. He found Schmidt to be a forthright staff member of MAC. Also many former members of the Flying Cloud Airport Advisory Commission should be thanked. CITY COUNCIL MINUTES December 17, 2002 Page 12 He believed the commission clearly placed before the Council the issues that enabled the Council to reach this compromise. Other issues of the expansion will be resolved in the future. He urged the Council to consult with MAC about reestablishing the Flying Cloud Airport Advisory Commission. There are many issues in this agreement and otherwise regarding both current use and potential expansion of the airport, for which he believed the City will need a watchdog and for which MAC will need a person with whom they can communicate. Mayor Tyra-Lukens said the Council should add that item to its agenda for discussion after the first of the year. Mayor Tyra-Lukens recessed the Council for 15 minutes at 8:20 p.m. The Council meeting resumed at 8:35 p.m. XI. PETITIONS, REQUESTS AND COMMUNICATIONS A. BRYANT LAKE HEIGHTS by James Perkins. Request to amend that certain Developer’s Agreement entered into on or about August 3, 1999 between the City of Eden Prairie and James and Raynelle Perkins with respect to Bryant Lake Heights, amendment of Exhibit C, paragraph XIII of the Developer’s Agreement, by deleting the requirement that all structures on Lot 2, Block 1 be removed prior to issuance of any building permit for Lot 1 and Lot 3, Block 1, Bryant Lake Heights. Location: 7012 Willow Creek Road. Neal stated the City Council held a public hearing on December 3, 2002 to discuss the above request by James and Raynelle Perkins. The public hearing was then closed, and the City Council directed the City Attorney to prepare findings, conclusions and order denying the request, with alternatives for dealing with the gazebo. The Council was asked to choose one of the following alternative findings regarding the gazebo. Finding 27 Variance 2001-07 on July 12, 2001 did not change any circumstances. The gazebo was already located at a 0' setback and the District Court’s order of January 2, 2001 allowed the owner of Lot 2 to make improvements and repairs to the gazebo, therefore extending its life. Variance 2001-07 neither changed the location of the gazebo, nor extended its useful life, nor compelled any improvement to it. Alternative Finding 27 Variance 2001-07, which allowed a 0' setback for the gazebo was an action of the City which makes it impractical for the City to require the removal of the gazebo prior to the issuance of building permits on Lots 1 and 3. The Council was asked to choose one of the following alternative orders. CITY COUNCIL MINUTES December 17, 2002 Page 13 Order Based upon the above, the City Council hereby determines: Amendment of Developer’s Agreement deleting the requirement that structures be removed from Lots 1, 2 and 3 prior to the issuance of a building permit for Lot 1 or 3 is denied. Alternative Order Based upon the above, the City Council hereby determines: Amendment of Developer’s Agreement deleting the requirement that structures be removed from Lots 1, 2 and 3 prior to the issuance of a building permit for Lot 1 or 3 is denied, with the exception that the City Council hereby approves an amendment to the Developer’s Agreement allowing building permits to be issued for Lots 1, 2 and 3, Block 1 without removal of the gazebo on Lot 2, which was the subject of Variance Order 2001-07. Luse asked to share information about this issue and would like to make a motion in order to share it. Tyra-Lukens said the Council had asked staff to prepare findings for denial of the request. She asked Rosow what the correct protocol would be. Rosow said there should be a motion made first to adopt these findings, and then it would be open for discussion and Councilmember Luse could share his information. However, if Luse wanted the Council to reconsider its motion made at the last meeting, it would be appropriate to make such a motion to reconsider. Either way he can bring forward the information he has. MOTION: Luse moved to reconsider. There was no second to the motion. Case asked for a point of information. Case inquired of Rosow if the City is better off allowing the gazebo to stay and vote for the alternative, because one could argue that a branch of City government permitted it to remain. Rosow replied, initially the City issued an order to the owner of Lot 2 to stop work on making repairs to the gazebo on the property. That is when the owner took the City to Court and received approval from District Court to make improvements. The gazebo was a non-conforming use, which the Court allowed to be improved. The City has subsequently granted a variance that changes the characterization of the gazebo to a conforming use by virtue of the variance, so nothing the City has done has extended the physical useful life of the gazebo. The City is not responsible for the gazebo being at zero feet, so either order is fully justified by the facts. However, since the City allowed zero setback, Rosow believed it would be easier to explain to a court or judge that those two actions are consistent, if the alternatives were adopted. There is a legal rationale to adopt either of the two alternatives. MOTION: Case moved, seconded by Mosman, to adopt Findings, Conclusions, and Order denying the amendment to the Developer’s Agreement and use Alternative Finding 27 and the Alternative Order directing staff to follow through. Discussion followed. CITY COUNCIL MINUTES December 17, 2002 Page 14 Luse said the Council and the City staff has gone through a tremendous amount of effort to sort out this matter. However, he wanted to take one further step by meeting with Jim Perkins on December 14 and with him and Mike Franzen on December 17. In Mr. Franzen, the City has a tremendous asset, which is a reminder that staff’s recommendation was to approve the request. It was a staff recommendation to approve the final plat of the subdivision, including the Developer’s Agreement, in August 1999. The Developer’s Agreement required that prior to issuing of building permits, existing buildings were to be razed and new houses built, which was not happening. Nathan Bergeland purchased Lot 2 in September 1999 pursuant to a Purchase Agreement dated August 23, 1999. The District Court ordered certain things could happen in the case of Bergeland. Luse said he has tried to understand where the truth lies, and he believed it lies in a problematic issue with Mr. Bergeland involving an additional 20-foot setback from the water’s edge and alleged comment that Mr. Perkins did not share the Developer’s Agreement with him. Luse said Mr. Perkins acknowledged again in the meeting earlier in the day that he does not remember giving this exact document to Mr. Bergeland. Luse said he has certain Purchase Agreement information, dated September 1999, that references issues related to the Developer’s Agreement, which Mr. Bergeland says he has never seen. The Council would not allow Mr. Bergeland to build a new house less than 75 feet back. The fact is that now Mr. Bergeland has moved off the property and closed the house. The question has become an economic issue. Tax abatement on Lot 1 is down from $470,500 to $200,000, and on Lot 3 is down from $425,000 to $175,000. Luse believed three houses should be built on these properties. If nearby property were used as an indication, he believed the City would be dealing with $50,000 per year of taxable property on these lots, which continue to be unbuildable. Luse believed some of the Findings proposed would not stand in a court of law. He has been extremely concerned on behalf of the City about setting precedents for the future. There was recommendation by staff at the last meeting to approve the request, and if that still stands, he asked his colleagues on the Council to bring this issue up again and allow these three lots to be built upon. Butcher asked Mr. Rosow to discuss the issues brought up by Councilmember Luse. Rosow replied he had distributed a memorandum previously, discussing the issues of performance, which form the basis for Finding 22. The memorandum states, “The City Council has been advised by the City Attorney that if a party contributes to the occurrence of an event which frustrates performance of a contract, such party cannot claim he or she is relieved of the obligation to abide by the contract. Further, the Council has been advised that an inability to develop land in a specific manner will not relieve a party of the obligation to perform if the party seeking to be so relieved contributed to or caused the event which frustrates performance.” This is the basis for Finding 22. Rosow said with respect to the Purchase Agreement, District Court addressed the Purchase Agreement in its decision. This property is called Torrens property, in CITY COUNCIL MINUTES December 17, 2002 Page 15 which the owner receives a Certificate of Title, and that is evidence of ownership. When Nathan Bergeland sued the City to get permission to make improvements, he brought forth his arguments and, in response, the Perkins’s, who joined the suit, showed the Purchase Agreement to the Court. The Court said that on September 29, 1999, Perkins delivered a Warranty Deed to Mr. Bergeland. Bergeland recorded the Warranty Deed with Hennepin County’s Registrar of Titles. Because this property was registered, this court needed only address whether Bergeland had actual knowledge of the Developer’s Agreement. The City offered the Purchase Agreement, and Perkins argued in support of the City’s position that Bergeland had knowledge of the agreement. The Purchase Agreement states the seller certifies that the City, County and State agencies have approved a 75-foot setback on 1999 plans that have been filed and recorded to allow the potential building of a new house on the existing lot. The City argued to the Court that Bergeland’s acknowledgment of this provision imputes actual knowledge of the Developer’s Agreement. Mr. Perkins contended in Court that Mr. Bergeland had actual knowledge of the agreement and its requirements. A letter from Perkins attorney, dated March 3, 2000, to Mr. Bergeland, made certain claims about rescissions and reformations. The Court found that the evidence presented did not establish actual knowledge of the Developer's Agreement by Bergeland. The Court said the City failed to present evidence to support the assertion that Bergeland had actual knowledge of the agreement, and thus summary judgment was warranted. The Court ordered summary judgment in favor of Bergeland on the issue of whether Bergeland had actual knowledge of the Developer’s Agreement. Rosow stated that this was decided by the District Court on January 2, 2001. It was not appealed by either party. The Court Order forms the basis for Findings 23 and 24 of the proposed Findings. If the City attempt now to re-litigate this issue, it would not be allowed. Luse asked if it matters that there was a 14-day time difference in the Purchase Agreement and the amendment to the Purchase Agreement, which identifies issues that come directly from the Developer’s Agreement. Luse asked if, in the normal course of conduct of the City, Bergeland could have come across the agreement. He asked how there can be an amendment to a Purchase Agreement that identifies specific things related to the Developer’s Agreement, whether that was given to Mr. Bergeland or not? Rosow replied neither the Purchase Agreement nor the amendment that followed it references the prohibition in the Developer’s Agreement that no permit may be issued until the buildings are removed from Lots 1, 2 and 3. This is the key prohibition that became an issue when the City attempted to prevent development on Lot 2. Reference in the Purchase Agreement of a 75-foot setback doesn’t tell one, in the District Court’s judgment, that there is a Developer’s Agreement that imposes further restrictions. The language in the amendment that makes reference to certain items that were on the same topic does not tell one there is a Developer’s Agreement out there. CITY COUNCIL MINUTES December 17, 2002 Page 16 Luse said the recommendation from City staff, which has been through this since 1989, is to approve the request, by providing for an amendment that would relieve Mr. Perkins of the obligation to have the house on Lot 2 removed prior to issuing permits for Lots 1 and 3. If the Council can move past Lot 2, the recommendation of staff is to go ahead and let Mr. Perkins build houses on Lots 1 and 3. The City is losing $15,000 to $20,000 per lot by not allowing this to happen. Case said those on this Council who have spent years on this issue know that Lot 3 will share a septic system and driveway with Lot 2. That is behind the reasons that two councilmembers voted against this in 1998 because there were many concerns about the ecological impact. When the Developer’s Agreement did pass and came back for amendments, the Council voted against it 5-0, because Councilmembers had so many concerns. The moment this land develops the way the Council intends, the money will come. Case said Luse appears to be over- simplifying this and bringing up last-minute issues. Case proposed to vote on the motion that was on the floor. Motion carried 4-1, with Luse voting nay. XII. REPORTS OF ADVISORY BOARDS & COMMISSIONS XIII. APPOINTMENTS XIV. REPORTS OF OFFICERS A. REPORTS OF COUNCILMEMBERS B. REPORT OF CITY MANAGER 1. Six-Month Performance Review Neal said that he wanted his initial six-month performance review completed while the current Council is in place. He recommended that Councilmembers turn in their completed forms to staff by December 20. Tyra-Lukens said the consultant the City used for the hiring process also recommended a six-month review. Neal said staff will turn over the data from Councilmembers to the consultant and he will synthesize it and make a presentation back to the Council. C. REPORT OF PARKS AND RECREATION DIRECTOR 1. Jean Harris Memorial Design Lambert asked Tria Mann, staff liaison to the Jean Harris Memorial Committee, to introduce this item. Mann said the Ad Hoc Committee is asking for the Council’s approval of the design of a memorial to Mayor Jean Harris, who died one year ago. Eleven months ago, the Council CITY COUNCIL MINUTES December 17, 2002 Page 17 appointed a task force to develop an appropriate memorial. That task force decided that the Purgatory Creek Area would be the best location. On August 6, 2002, the Council approved the artist’s (Teri Kwant) contract. For four months the Ad Hoc Design Committee worked with the artist on the design. On November 25, the Arts and Cultural Commission gave full support to the design, and on December 4, the Parks, Recreation and Natural Resources Commission approved the design. Teri Kwant presented her design. She said the Ad Hoc Design Committee was very professional and helpful. The group gave her clear parameters and some great suggestions for an appropriate tribute to Mayor Harris. She also received input from friends and family members. Through that research she learned about Mayor Harris and what her roles were in life and some of her characteristics. Kwant said she discovered Jean Harris was an activist, a physician, corporate leader, politician, philanthropist, administrator, visionary, president and CEO, councilmember, mayor, volunteer, wife, daughter, and sister. Kwant said she learned Jean Harris was courageous, respected and respectful, a mediator, poised, enthusiastic, forgiving, inspiring, aware, powerful, committed and spiritual. Kwant said the symbolism she used in the design came through these discussions when she found out what Jean Harris loved about life. She loved music, literature, art, sun and nature, travel and adventure, water and the ocean, laughter and comedy, fun in the day-to-day. She wanted to be remembered for striking a blow for her whole race, making a difference. Kwant was informed that the Purgatory Creek Recreation Area park would be developed in phases. The committee wanted to construct something in the next couple of years so that the public would not have to wait too long for an appropriate tribute to be completed. Out of a number of options, the committee decided on building a bridge. Because there will be a need in the park for a functional bridge to be built across a weir where water spills from one pond to another, that location was selected. A bridge seemed like a good metaphor for Jean Harris, because she had been like a bridge in connecting people and ideas. The name suggested is the “Jean Harris Gathering Bridge.” The bridge would be 45 feet long, 10 feet wide and 10 feet high. The deck would be concrete in two different colors. In the center portion of the deck there would be a circular design of raised steel, which resembles a wagon wheel with eight spokes. In the hub would be inscribed “A Tribute to Dr. Jean Harris – 1931-2001.” Laser-cut into the steel spokes are questions based on Dr. Harris’s ten “lessons of life”, the dictums she lived by. The third distinct layer of meaning is the use of symbols forming part of the structure. Along each side of the bridge, mounted atop ten-foot high poles of tubular steel, there will be 19 clear glass 12-inch squares etched with symbols from a West African tribe and the character traits they CITY COUNCIL MINUTES December 17, 2002 Page 18 represent. These could be used as an educational tool for children to learn about other cultures. All are clear references to Dr. Harris. The materials used in the bridge attempt to create an interesting textural element. Kwant said she consulted with City staff, SRF Consulting Group and structural engineers about the project and was told the bridge could be built as envisioned. She also talked to Barr Engineering about placement of the bridge and was assured the location was good. Kwant reviewed the preliminary budget for the project. The amount of money allotted for a bridge at this location was $45,000 to be paid by the watershed district. Because the proposed bridge is a custom fabricated bridge, it would cost double that amount. Custom Fabricated Bridge Structure $ 90,000 Wood Hand Rails and Concrete Decking Steel Trellis Structure (64' @ $300 LF) $ 9,200 Glass Panel Inserts (18 @ $300 EA) $ 5,400 Steel Panel Bands w/Laser Engraved Text (18 @ $1,000 EA) $ 8,000 Design Detail and Drawings and Construction Documentation $ 20,000 10% Contingency $ 13,990 Total Cost $156,590 Current budget allotment for standard bridge ($ 45,000) Remaining Cost for bridge $111,590 Kwant said the more she learned about Dr. Harris, the more honored she felt to be working on this project. She expressed appreciation to the committee for the opportunity given to her. Mayor Tyra-Lukens said she liked the design and the thought that was given to the project. She also liked the site that was chosen. It is inviting to people and will draw them into the park. Butcher said she was very moved by the way Kwant has brought this all together. She believed it does reflect Jean. Luse said after talking with Leslie Ellis, he believes the gathering bridge will enable us to reflect back on Jean Harris in a way that, even after a generation, we will be able to draw out her character and realize we were lucky to have had her in our community. The City will be looking for a funding source. In talking to people in the community, he had a strong sense that there would be a ground swell of funding from City residents rather than using City funds for the project. He believed many people would agree that it would be great to reach out so everyone could participate in this amazing tribute. CITY COUNCIL MINUTES December 17, 2002 Page 19 MOTION: Case moved, seconded by Butcher, to approve the “Gathering Bridge” design as an appropriate memorial to the memory of Dr. Jean Harris; and direct staff to investigate any funding sources to help pay for construction of the “Gathering Bridge.” Motion carried 5-0. 2. Land Donation Lambert reported that the City received a letter this week from Brown Land Company of Eden Prairie, Inc. and Dennis Hallberg, donating Outlots E and F, Bell Oaks First Addition, to the City for park and open space purposes. Outlot E contains approximately 11.91 acres and Outlot F contains approximately 4.38 acres. City staff recommended accepting the donation of this property. MOTION: Butcher moved, seconded by Mosman, to approve Resolution No. 2002-199 accepting the donation of Outlots E and F, Bell Oaks First Addition. Motion carried 5-0. D. REPORT OF COMMUNITY DEVELOPMENT DIRECTOR E. REPORT OF PUBLIC WORKS DIRECTOR F. REPORT OF POLICE CHIEF G. REPORT OF THE FIRE CHIEF H. REPORT OF MANAGEMENT AND BUDGET DIRECTOR 1. Habitat for Technology The Economic Development Pilot involves creating an infrastructure to promote economic development utilizing functional web sites. The object is to provide an opportunity for all businesses in the City to post and maintain an effective web site. It is anticipated that the target market will be small businesses that lack the resources to effectively create a well- positioned web site. However, in order to ensure access for all businesses, those involved in this pilot will represent a cross-section of type, size and industry sector. The pilot project proposes to use student interns to help create a simple framework for web site development. Interns will be supervised and mentored by industry professionals. Habitat For Technology staff will coordinate and oversee the project. Participating businesses will assist in the development, testing and documentation of a well-defined program that will provide the Chamber of Commerce a prototype for marketing and sales. A request for funding this project was presented to the City Council at the June 18 meeting. Neal reported that Habitat for Technology (HFT) had asked that its request be deferred to another meeting. CITY COUNCIL MINUTES December 17, 2002 Page 20 Luse said he had concerns he would like to state at time, as it will be his last meeting. The $100,000 grant from the City would include $50,000 now and $50,000 in June 2003. In addition to that, HFT is expected to donate $20,000 and the Chamber of Commerce $20,000. Endurant Business Solutions is the consulting firm that advises HFT on how to promote Eden Prairie as the epicenter of Minnesota technology. Nicholas Eian is the president of HFT and also the owner of Endurant Business Solutions. The problem is one of an apparent conflict of interest. Luse said the City is well meaning in reaching out to the business community. He is a member of the Eden Prairie Chamber of Commerce. There has been a tremendous response from the business community. HFT and the Chamber of Commerce share an office. There are also members on the boards of both. With regard to the $20,000 donation from the Chamber, he was concerned that the current chair of the Board has indicated he will be putting $30,000-$50,000 into initiatives as it relates to either the Chamber or HFT. The membership in the Chamber is down by about 100 members. The web site is a well-meaning process, but the question becomes, where is the $20,000? Luse said he doesn’t see the benefit to the City for putting out $100,000. He clearly sees the benefit of working with business. His concern is, do we become beholden to other non-profit organizations? There is a place for government, but does the City want to be in the web-site development business? The question is, why would it not be revenue generating? He asked what accomplishments HFT has completed? He requested that Councilmembers come up with the accomplishments to date so they can evaluate spending taxpayers’ dollars. He understood this is an economic development tool. Where was the RFP set out? He has not seen one. Why was it automatically given to HFP and not others? There may be other businesses that want to step up. That amount of money deserves a thorough investigation before donating $50,000 as planned now and $50,000 in June. Tyra-Lukens said she understood that Luse’s concerns are possible conflict of interest, doing a cost-benefit analysis or some revenue- generation, the ability of the Chamber of Commerce to make a donation, and the policy implications regarding other non-profits. Neal said in many cases, if there is a Councilmember that has concerns about an item on the agenda, staff will make the outside party aware that questions were raised and ask how they wish to proceed. In this case, the party asked that this item be removed from the agenda in order to give him a chance to meet with Mr. Luse, hear the questions and have a chance to respond to them. CITY COUNCIL MINUTES December 17, 2002 Page 21 Luse said he is now leaving the Council and he believed his actions have been transparent as a Councilmember. He would be glad to meet with these individuals in HFT and come to the next Council meeting if asked. Mosman said she understood high school students would be used as interns to work on this project. That should reduce the cost. Luse agreed that it should. Case said he was uncomfortable with this discussion. He believed it was not appropriate to be talking about this now because it was pulled from the agenda to be put on January’s agenda. I. REPORT OF CITY ATTORNEY XV. OTHER BUSINESS XVI. ADJOURNMENT MOTION: Case moved to adjourn the meeting. Mayor Tyra-Lukens adjourned the meeting at 9:55 p.m.