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City Council - 09/02/2008 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY, SEPTEMBER 2, 2008 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Phil Young, Council Members Brad Aho, Sherry Butcher, Jon Duckstad and Kathy Nelson CITY STAFF: City Manager Scott Neal, Parks & Recreation Director Jay Lotthammer, Public Works Director Gene Dietz, Community Development Director Janet Jeremiah, City Attorney Ric Rosow and Council Recorder Jan Curielli I. ROLL CALL/CALL THE MEETING TO ORDER Mayor Young called the meeting to order at 7:00 PM. All Council Members were present. II. COLOR GUARD/PLEDGE OF ALLEGIANCE Mayor Young thanked Boy Scout Troop 342, chartered by Eden Prairie United Methodist Church, for presenting the colors. III. OPEN PODIUM INVITATION IV. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS MOTION: Aho moved, seconded by Nelson, to approve the agenda as published. Motion carried 5-0. V. PROCLAMATIONS /PRESENTATIONS VI. MINUTES A. COUNCIL WORKSHOP HELD TUESDAY,AUGUST 19, 2008 MOTION: Nelson moved, seconded by Aho, to approve the minutes of the Council Workshop held Tuesday, August 19, 2008, as published. Motion carried 4-0-1, with Butcher abstaining. B. CITY COUNCIL MEETING HELD TUESDAY,AUGUST 19, 2008 MOTION: Duckstad moved, seconded by Aho, to approve the minutes of the City Council meeting held Tuesday, August 19, 2008, as published. Motion carried 4-0- 1, with Butcher abstaining. VII. REPORTS OF ADVISORY BOARDS & COMMISSIONS VIII. CONSENT CALENDAR CITY COUNCIL MINUTES September 2, 2008 Page 2 A. CLERK'S LICENSE LIST B. EXTENSION OF TIME TO REVIEW THE 2008 GUIDE PLAN UPDATE (Resolution 2008-85 requesting a six month extension of Comprehensive Review) C. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH SEH, INC., FOR DESIGN PHASE SERVICES FOR EDEN PRAIRIE ROAD, SOUTH OF RILEY CREEK, I.C. 015537 D. APPROVE VETERANS MEMORIAL GRANT AGREEMENT WITH THE STATE OF MINNESOTA E. APPROVE RESOLUTION 2008-89 AUTHORIZING EXECUTION OF GRANT AGREEMENT FOR SAFE & SOBER PROJECT F. APPROVE PROFESSIONAL SERVICES AGREEMENT FOR SEH, INC., TO PERFORM THE THIRD PHASE OF THE ONGOING I & I ABATEMENT PROJECT G. AWARD CONTRACT FOR EDEN PRAIRIE ART CENTER OUTSIDE SITE IMPROVEMENTS TO PARROTT CONTRACTING INC. H. AWARD CONTRACT FOR ART CENTER REMODELING TO DORAN CONSTRUCTION I. ADOPT RESOLUTION 2008-86 AUTHORIZING EXECUTION OF 2008 CDBG SUBRECIPIENT AGREEMENTS MOTION: Duckstad moved, seconded by Butcher, to approve Items A-I on the Consent Calendar. Young asked that Items G and H be taken out for further discussion by the Council. AMENDMENT TO THE MOTION: Duckstad moved, with the approval of Butcher, to approve Items A-F and Item I on the Consent Calendar. Motion carried 5-0. Young asked staff to explain what Items G and H regarding contracts for the Eden Prairie Art Center were intended to accomplish. Lotthammer said one of the two items is specific to the outdoor portion of the project and is a contract to enlarge the parking lot from six to 26 spaces and to deal with rain and storm water drainage issues. The second item is specific to the indoor portion of the building. Since the building was used as a private facility, it was not subject to the same codes as those required to operate as a public facility. He said the Task Force report timeline called for the facility opening in January, which seemed to be an aggressive timeline to get the design plans approved and get bids out for construction. We had a successful turn around time,primarily because Dan CITY COUNCIL MINUTES September 2, 2008 Page 3 O'Brien, who served on the committee, did the design. The quotes are based on the design plans for the interior and exterior. He said this will enable us to turn around the building renovations by January so the public can access the building. Young said he was anxious for the Art Center to become a reality and be opened to the public,but he also felt very strongly there needs to be a private initiative to raise the money to renovate the building. He said there have been some preliminary efforts made towards that,but he was reluctant to spend public money until we know that those efforts will be successful. He thought part of fundraising is giving people the promise of what the money will provide, and he thought spending the money now could negatively affect the fundraising efforts. He would like to give the efforts a little time to see if they bear fruit. He thought we are moving a little fast on this. Lotthammer said the Friends of the Eden Prairie Art Center are moving forward with private donations and have a very viable website for fundraising. He was quite confident they will be able to raise the money. He said another piece of the fundraising is the grants and foundation applications to businesses such as SuperValu and the Quinlan Foundation. Fundraising for capital improvements tends more towards the equipment needed for the facility, and things like the parking lot and HVAC system don't sell well with fundraising to foundations. Another piece of the fundraising efforts are the events, with three events scheduled that build up to a final one in December which will be a large fundraising opportunity. He thought there will be an opportunity to see some large dollars coming in,but he couldn't tell the Council that today there is money sitting in the bank. They do have $25,000 in the bank from the anonymous donor. He thought this is a good group that is working very hard to do the fundraising. He said the two items before the Council are the less glamorous things that enable the building to be opened as a public facility. He thought we could delay the opening because we are not committed to any contractors at this time. If we were to delay more than a few weeks, we will miss a window for construction of the parking facility this fall. Young asked if their goal is to raise $500,000. Lotthammer said that was correct. Young said he didn't think they have had the opportunity to meet their goal as yet, and he was still concerned that the January date is a very aggressive goal. Aho said he would like to see the Art Center open as soon as possible; however, in talking to residents a lot of people have concerns about the costs to open and to maintain the facility. He thought it is important for us to be financially responsible in raising the money to open the facility. He noted the cost to do the parking lot is $91,000, and we are 20-30% towards that amount with the $25,000 in the bank. The parking lot is the most time critical phase to get the facility opened. He thought we have some prime examples and models from some of the recent fundraising events that have occurred in the community, and he thought the Art Center group could look at those. He would like to see that happen prior to committing to spend the money. Nelson said she has been working with the Friends of the Eden Prairie Art Center CITY COUNCIL MINUTES September 2, 2008 Page 4 and she thought they are well set up to raise some money. A lot of the foundation grants can't give money if there is nothing ready operationally. We have wanted this for a long time, and people need to see it is really going to happen. We do have money in the side fund we agreed to use for the basics to get it going, and she saw no reason to wait on these items. If it looks like this may never happen,people may want to wait before they give money. She thought the Council needs to put our confidence behind it, and we need to go forward with the parking lot and some of the interior improvements now. Butcher said she knows we have the goal to open the Art Center, and she also knows it is difficult to have a fundraising event without having a parking area. She said grants usually do not fund capital projects. As a compromise she asked if we could expand the parking lot but hold off on the remodeling. If we could expand the parking lot so we could get more spaces there for the fundraising events, it would give us access to those fundraising dollars. We could get the parking lot done for$90,000, so if we could use the fund money available and the park funds to cover the remainder we could open up the building for the fundraising events. That might allow us to get to Phase 2 and do the more aesthetic changes and the restrooms. Duckstad thanked Mr. Lotthammer for his report. He said he does support the Art Center initiative;however,he equally supports that we make every effort to obtain funding privately. He agreed we should delay the opening a little longer and explore the opportunity for additional funding. Young said one of the problems we are dealing with is the approaching winter, and he asked what the deadline would be for the City Council to make a decision on the parking lot. Lotthammer replied the further out we go, we gamble with the weather in terms of how long they can produce asphalt and how long they could do the work. The deadline for that work could be as early as late October. He said it would take a week or two to get the contract bids to us. We could push it out another couple of weeks and probably still get it done,but if we wait until the October meeting we probably cannot do it because of the weather. Regarding the interior portion,he thought we might scale that back. We would want the opportunity to consider the impact of not doing the restroom because part of that is ADA related. We probably would not have to do all of the HVAC. There is a way potentially to delay,but it would limit us as to what we could do there and would narrow the scope of what we could offer for the time being. Young said he was hoping that the two items were completely severable. Since we own the building, we will have to put in the parking lot. People don't generally donate money for something like that. He thought before we do any type of programming we need to see progress on the private fundraising in order to make commitments on the interior. Nelson pointed out that we can build the parking lot now at this year's asphalt prices, and those prices go up 5-7% per year. She saw no reason to wait and spend more money next spring since we know we are going to do it. CITY COUNCIL MINUTES September 2, 2008 Page 5 Butcher agreed and said that is why she wants to see if we could get the parking lot done this fall. She asked what the cost would be if we did the parking lot and just expanded the bathroom. We have a window of two weeks for the parking lot, and she would like to find out what it would take to make the bathroom ADA- accessible. We would be able to look at that number and then make a decision. Neal noted these are price quotes and not bids because the State's minimum bid statute was raised from$50,000 to $100,000 and both items are under the price limit. He suggested that the items probably aren't completely severable,but we could explore that particular alternative. He thought the Council may also want the leader of the Friends of the Art Center group to give a presentation at the September 16 Council meeting so we could see how that group is organized and what their activities are. Duckstad said he was in favor of delaying the project so we can see further progress on the funding before we start. Nelson said she would like to approve the parking lot tonight with the assumption that the inside stuff doesn't have the same drop dead date. She saw no reason to delay this and have the project cost more. She thought we have to assure the community of our support so they have some confidence that there will be an Art Center. She said we voted on the Art Center and decided where the money was coming from, so it is time to go forward with the parking lot and bring back figures on the minimal improvements to the interior at the next Council meeting. Young said he wasn't suggesting otherwise,but he wanted to reinforce that the Council expects there will be a substantial private fundraising initiative. MOTION: Aho moved, seconded by Duckstad, to postpone the decision on the Art Center parking lot and the interior improvements until the next City Council meeting in order to hear a report on the costs to separate the two items and to hear a report from the Friends of the Eden Prairie Art Center on the fundraising efforts. Young said he stands by his position that he is willing to entertain financing something this fall. He thought we should invite the leaders of the Friends of the Art Center group to come forward and inform the Council on what specifically they are planning, and also explain how these improvements would be impactful. Neal said he would set that up. VOTE ON THE MOTION AS AMENDED: Motion carried 5-0. IX. PUBLIC HEARINGS /MEETINGS A. VERIZON WIRELESS TOWER RELOCATION-MINC RILEY LAKE Request for: Planned Unit District Review with waivers on 0.39 acres, and Site Plan Review on 0.39 acres. Location: 9100 Riley Lake Road. (Ordinance for PUD District Review with waivers; Resolution for Site Plan Approval) CITY COUNCIL MINUTES September 2, 2008 Page 6 Neal said official notice of this public hearing was published in the August 21, 2008, Eden Prairie News and sent to 81 property owners. This project is for the relocation of a proposed Verizon Wireless tower and ancillary structure to another site within the Riley Lake Park. The previous site was found to have deed restrictions which would not allow the tower. The Department of Natural Resources (DNR) believes that the parcel of land currently being considered for the tower relocation is also subject to restrictions based on a previous grant. Until this is resolved between Verizon and the DNR, staff recommends the Council close the public hearing and table action on the ordinance and resolution. Neal said the Site Plan Review is for the 240 sq. ft. accessory building associated with the tower. Since the cellular tower is not greater than 80 feet and the required setbacks from residential zoned property are met it is exempt from the requirements of a Site Plan Review. Two non-significant trees will be lost as part of the grading. PUD waivers are requested for 10-foot side and rear yard setbacks versus the required 30 feet. Meeting the code would result in additional tree loss and increased impervious surface area. Due to the Parks, Recreation and Natural Resources Commission's previous approval of the tower and accessory building on park property, no further action was necessary. The Heritage Preservation Commission also endorsed the new location. The 120-Day review period expires on November 19, 2008. The Planning Commission voted 5-0 to recommend approval at the August 11, 2008 meeting. Peter Campbell, representing Verizon, said they found out about a deed restriction that would not allow them to locate the wireless facility in that location. There is an outlot that does not have a deed restriction filed on the title, and they are working with staff to determine how the overall deed restriction over the park is being interpreted. They are in the midst of coming together with a final consensus. They cane here this evening to request a waiver for setbacks while finding a new location. By providing the setback waiver they could locate the building further from the groomed portion of the park and minimize the impact. He agreed with Mr. Neal that the item should be tabled. Neal said our typical course of action would be to have the public hearing and have the action associated with it right after. Verizon wants to put the tower on a separate lot adjacent to Riley Park that was not funded with a grant from the DNR. The DNR is trying to make the case their restrictions about cellular towers should extend to this outlot,but we feel they are not correct. He said staff believes it is important to send the DNR a signal that the City Council thinks it is acceptable. He said the item has been reviewed and recommended for approval by the Planning Commission, the Park, Recreation and Natural Resources Commission and the Heritage Preservation Commission. MOTION: Duckstad moved, seconded by Aho, to close the Public Hearing and to table action on the 1st Reading of the Ordinance for Planned Unit Development District Review with waivers in the Rural Zoning District on 0.39 acres, and the Resolution for Site Plan Review on 0.39 acres. CITY COUNCIL MINUTES September 2, 2008 Page 7 Aho suggested making another motion regarding the acceptance and that we have nothing against the concept of Verizon locating a tower there. Young thought we just wanted discussion on it at this time. Rosow suggested an addition to the motion that it be tabled until staff advises that the issue with the DNR is resolved but in any event no later than November 18. AMENDMENT TO THE MOTION: Duckstad moved, with the approval of Aho, to add that the motion be tabled until staff advises that the issue with the DNR is resolved but in any event no later than November 18. Young said he agreed with Mr. Aho's comments and was glad that staff is working with Verizon on this. He was grateful for our good relations with the DNR on many issues, but their position on this issue confounds him. He thought we need to make it clear to the DNR that we disagree. VOTE ON THE MOTION AS AMENDED: Motion carried 5-0. B. WINDSOR PLAZA REGISTERED LAND SURVEY Request for: Planned Unit District Review with waivers within the Commercial Regional Service District on 4.29 acres, and Registered Land Survey on 4.29 acres into 5 tracts. Location: West of Flying Cloud Drive, south of Singletree Lane, north of Regional Center Road. (Ordinance for PUD District Review with waivers; Resolution for Approval of RLS; Project Development Agreements; Quit Claim Deed) Neal said official notice of this public hearing was published in the August 21, 2008, Eden Prairie News and sent to 21 property owners. This is for approval of a Registered Land Survey (RLS) for Windsor Plaza that we talked about in the HRA meeting. As part of the approval of the RLS, the Agreement Regarding Special Assessments and the Assessment Agreement are being amended. The purpose for these amendments is to allocate the special assessments and the real property taxes to the individual tracts of the RLS. In addition in December, 2007 the City vacated a small portion of Eden Road necessary for the Windsor Plaza project. As with the prior vacation of Eden Road it is necessary to tender a Quit Claim Deed to Windsor Plaza, LLC for the vacated right-of-way. Approval of the RLS will not result in any changes to the Windsor Plaza project approved by the Planning Commission and City Council in 2007. Neal said the 120-Day review period expires on November 9, 2008. The Planning Commission voted 5-0 to recommend approval of the project at the August 11, 2008 meeting. Jeremiah noted this item is at the developer's request. Michael Viola, Counsel for Windsor Plaza, said this is a clean up matter and is designed to reconfigure the legal description of the project. CITY COUNCIL MINUTES September 2, 2008 Page 8 MOTION: Butcher moved, seconded by Duckstad, to close the Public Hearing, to approve 1St and 2nd Reading of Ordinance No. 21-2008-PUD-11-2008 for Planned Unit Development District Review with waivers within the Commercial Regional Service Zoning District on 4.29 acres, to adopt Resolution No. 2008-87 for Preliminary and Final Registered Land Survey on 4.29 acres into 5 tracts, to approve the Fourth Amendment to Development Agreement Windsor Plaza; First Amendment to Assessment Agreement; and Second Amendment to Agreement Regarding Special Assessments; and to approve and authorize the Mayor and City Manager to executed and deliver a Quit Claim deed to Windsor Plaza, LLC for right-of-way of Eden Road vacated by Resolution No. 2008-48. Motion carried 5- 0. X. PAYMENT OF CLAIMS MOTION: Duckstad moved, seconded by Aho, to approve the Payment of Claims as submitted. The motion was approved on a roll call vote, with Aho, Butcher, Duckstad, Nelson and Young voting "aye." XI. ORDINANCES AND RESOLUTIONS XII. PETITIONS, REQUESTS AND COMMUNICATIONS XIII. APPOINTMENTS XIV. REPORTS A. REPORTS OF COUNCILMEMBERS B. REPORT OF CITY MANAGER 1. Resolution No. 2008-88 certifying proposed 2009 property tax levy, accepting proposed 2009 budget, setting date(s) for Truth-in-Taxation hearins!(s), and consenting and approving HRA tax levy Neal said this is a request to certify the proposed 2009 property tax levy accepting the proposed 2009 budget and setting dates for the Truth-in- Taxation hearings. Minnesota Law and administration rules prescribe a detailed process for public notification and participation in setting taxes and budgets of local governments. Cities must adopt a proposed net property tax levy by September 15 and certify it to the county auditor. In addition, the City Council must accept a proposed budget for the coming year. Neal said our proposed 2009 budget was approved as part of a two year budget in December 2007. We plan to carry forward that same budget with a couple of changes we talked about at the last meeting. The City must also set a date for the "Truth-in-Taxation"hearing and a date to reconvene it(if necessary). These dates may not conflict with the initial hearing dates set by Hennepin County, school districts, or the metropolitan taxing districts. Because they get to set their dates before we do, there are a very limited number of dates available. The dates of December 1 and December 8 are CITY COUNCIL MINUTES September 2, 2008 Page 9 the most feasible for us to be within the schedule established by the Minnesota Department of Revenue. The Council must adopt the final tax levy and budget by December 16. Minnesota Law authorizes the HRA to levy a tax with the consent of the City Council. This resolution gives the consent needed for the HRA levy Young said he understood we had certain discussions about the budget last year, but asked it tonight's action is in essence certifying the maximum possible levy. Neal said that was correct and the Council tonight would be setting the maximum levy that it is willing to set. Unlike previous years there is a maximum legal levy that could be set tonight because of the tax levy limits adopted by the State legislature this year. He noted we are well under the legal limit right now. The maximum levy number is used by the County to prepare the Truth-in-Taxation notices that go out. This is the maximum number and in the past the Council has made slight changes to the final levy in December. Young said he anticipated there will be some Council discussion and more opportunity for residents to provide their input to the Council on the budget. Neal replied that was correct and it is important to recognize that, while we do a two-year budget process, the state does not recognize that two-year process. We do a lot of due diligence and analysis in the odd numbered years and less of it in the even numbered years. We have a new process where we apply an increased level of due diligence on the capital improvement plan in the even numbered years. Duckstad said he would support this motion because it is only a proposal and is not a binding determination. The City Manager gave us a lot of information so we could review this issue and the ultimate resolution. He noticed that in the proposal to make some changes in the budget adopted last year there was a recommendation that we add $200,000 to the levy. He wanted to be clear that he will veto that. Nelson said she was equally upset that we put too little money into capital improvements last year for such items as roads and roofs. She said City staff has been able to assure her we will manage the next two years by increasing as it proposed. MOTION: Aho moved, seconded by Duckstad, to adopt Resolution No. 2008-88 that certifies the proposed 2009 property tax levy to be $33,113,185; sets the "Truth-in-Taxation"public hearing for Monday, December 1, 2008 and, if necessary, to reconvene the public hearing on Monday December 8, 2008; accepts the proposed 2009 budget of $42,811,155; and consents and approves the HRA tax levy of$200,000. Motion carried 5-0. C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR CITY COUNCIL MINUTES September 2, 2008 Page 10 D. REPORT OF PARKS AND RECREATION DIRECTOR E. REPORT OF PUBLIC WORKS DIRECTOR 1. Policy on Temporary Basmins! of No Parking Sims Dietz said these two items deal with limiting liability for the City. Since he started with the City, we have administered a temporary bagging policy only where there is no reasonable alternative. He said staff talked about the issue with the Police Department. Most time these situations go to the Traffic Engineer, but sometimes the question gets to the Police Department and they wanted something to point to. Staff chose to bring the issue to the Council to adopt this as a formal policy. Young asked if it is important that the City Council adopt these policies because of the liability issues. Rosow replied this gives an added degree of authority to the policy. It makes it much easier to establish that this is an adopted policy when we can show the action that was taken. MOTION: Duckstad moved, seconded by Aho, to adopt the policy on Temporary Bagging of No Parking Signs. Motion carried 5-0. 2. Policy on Temporary Stop Sisn Control at Traffic Sisnal Systems Experiencing an Electrical Power Outage Dietz said the second item relates to the installation of temporary stop signs at signal systems that have lost power. The policy proposed is consistent with what Hennepin County and many other agencies do. In situations where we know it will be down for an extensive time period of more than four hours we can go ahead with the temporary signs. He said this gives authority to himself and the Police Chief to make the decision. It does not preclude the Police Department from doing manual control of the intersection. Young asked if by passing this motion we will merely formalize what our policy has been. Dietz said we have given mixed signals on this issue, and this question came to us from a staff member who asked who has the authority here. We have been having this discussion for about a year, and found that most agencies have a policy not to do this. Young asked if that is a better policy from a Public Works perspective. Dietz said we believe this is the best solution. Once the stop signs are put out and lights come back on it can be confusing and there can be conflicts. It has the potential for some serious accidents on some roadways. Duckstad asked if the uniform traffic manual addresses this issue. Dietz said the manual says if you do this, it must be done in a certain way and this item says we will not do it. It is consistent with other operating agencies. CITY COUNCIL MINUTES September 2, 2008 Page 11 MOTION: Duckstad moved, seconded by Aho, to adopt the Policy on Temporary Stop Sign Control at traffic signal systems experiencing an electrical power outage. Motion carried 5-0. F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY XV. OTHER BUSINESS XVI. ADJOURNMENT MOTION: Butcher moved, seconded by Nelson, to adjourn the meeting. Motion carried 5-0. Mayor Young adjourned the meeting at 8:08 PM.