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City Council - 07/21/2009 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY,JULY 21, 2009 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Phil Young, Council Members Brad Aho, Ron Case, Jon Duckstad and Kathy Nelson CITY STAFF: City Manager Scott Neal, Parks & Recreation Director Jay Lotthammer, Public Works Director Eugene 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 III. OPEN PODIUM INVITATION IV. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Nelson added Item XIV.A.2. Case added Item XIV.A.3. Neal added announcements under Item XIV.B. and asked the Council to meet in a brief closed session during Item XIV.H. to consider a settlement offer for a lawsuit. MOTION: Aho moved, seconded by Case, to approve the agenda as amended. Motion carried 5-0. V. PROCLAMATIONS /PRESENTATIONS A. NINE MILE CREEK WATERSHED DISTRICT Corrine Lynch, a Manager on the Nine Mile Creek Watershed District Board, said they are celebrating their 50"'Anniversary this year. They had an area historian and author prepare a special book in honor of the anniversary. She distributed copies of the book to the Council Members, noting the book contains a map, the history of the area, and a description of some of the environmental efforts for natural resources in the area. She said they plan to distribute these to area schools and they can be purchased from the Watershed District for $10.00. Nelson said she has driven by Anderson Lakes and noticed it seems to be filling up very slowly. She was concerned about the large amount of weed and grasses in the shallower ends of the lake and asked if there are any plans to mow down any of that growth so trees don't start to grow there in the fertile soil. Ms Lynch said she will take Council Member Nelson's concern back to the board. She noted it has been a very unusual drought and they will address those issues if the lake does not fill up CITY COUNCIL MINUTES July 21, 2009 Page 2 as expected. She said the University of Minnesota is doing a study on curly leaf pond weed in the lakes and will write a report on that because they were concerned about that weed more than others. B. EDEN PRAIRIE HISTORICAL SOCIETY Jan Mosman, representing the Eden Prairie Historical Society, said she wanted to follow up on their workshop with the Council earlier this evening. She wanted to clarify that the Historical Society is not a service organization like PROP or the Eden Prairie Foundation. The Historical Society is actually listed with the City as a body of the City and is recognized as such, so it operates in a slightly different manner than the service groups. Ms Mosman said Mayor Young raised a question about the Historical Society wanting to be the sole occupant of the building. She said they are not expecting to have sole use of the house but do want to confirm that they would be the responsible party and the primary occupant. She said they would like to ask if the Historical Society could continue the draft agreement that was started with City staff and bring it back to the August Council meeting. Any questions the Council may have prior to that time should go to Mr. Neal so those questions can be addressed ahead of the August meeting. She said they also would like permission to get bids in preparation for work such as the sprinkler system in order to pursue some of the grant money in September after the agreement is approved. Young said the City Council would like to move forward with the Historical Society. He noted many of the issues discussed during the workshop did not necessarily have a right answer,but the Council did want to articulate the importance of both the Historical Society and the City having a clear understanding of what will be done and the obligations. He thought it was a good goal to try to bring something back to the August meeting and it was appropriate to move that forward. In the interim he thought it was fair for the Historical Society to get cost estimates for capital improvements before a formal agreement is reached, noting they need to be aware of the bidding process required by the City. Neal said it depends on the cost value of the project but we can't excuse ourselves from the bidding process by transferring the process to a third party. The Historical Society and the City will need to work together to make the scenarios work. Young said the City Council and staff understand the Historical Society is different in nature than PROP or other organizations but we do need to have a clearly defined agreement. Nelson asked if we could say the sense of the Council is for them to meet and bring a more concrete agreement to the August meeting. There was no disagreement with that from the other Council Members. C. ART CENTER DONATION FROM LION'S CLUB Lotthammer said we have received another donation from the Lions Club, and this one is to support the Art Center in the amount of$1,522.00 for the funding of capital equipment. CITY COUNCIL MINUTES July 21, 2009 Page 3 Young thanked the Lions Club for the donation and noted they are a great organization in our City. He thought the monument at Round Lake Park looks phenomenal. MOTION: Duckstad moved, seconded by Nelson, to accept the donation from the Eden Prairie Lions Club in the amount of$1,522 to assist with funding for equipment at the Art Center. Motion carried 5-0. D. HEARTSAFE EDEN PRAIRIE RECOGNITION Chief Koering, Assistant Fire Chief and coordinator for the Heartsafe Eden Prairie initiative, said there are over 60 AED's placed in businesses within the City since the inception of the program. He said the devices will create positive results for victims of sudden cardiac arrest. He introduced three affiliates of Lifetime Fitness who responded to a recent medical situation at the Baker Road facility and who, with the help of an AED, saved the life of Ms Connie Schilling. Ms Schilling shared her experience and said she wanted to let everyone know how important it is to have one of the AED devices on site at places where a large number of people gather. She thanked the three individuals for their response. Mayor Young and Chief Koering gave pins and plaques as awards of valor to the three responders. Chief Koering said he also wanted to recognize Lifetime Fitness by giving them a plaque to hang in their facility and to encourage others to take the same level of initiative to protect their customers and employees. Young thanked them for coming and sharing their story. Case noted Eden Prairie is one of the first communities to have an AED in every school and every public building in the City. VI. MINUTES A. CITY COUNCIL MEETING HELD TUESDAY,JUNE 16, 2009 MOTION: Duckstad moved, seconded by Aho, to approve the minutes of the City Council Meeting held Tuesday, June 16, 2009, as published. Motion carried 5-0. VII. REPORTS OF ADVISORY BOARDS & COMMISSIONS A. BUDGET ADVISORY COMMISSION 2009 WORK PLAN Annette Agner, a member of the Budget Advisory Commission (BAC), gave a PowerPoint overview of the purpose, focus and work plan for the BAC. She said they formed a subcommittee to review the purpose of the BAC and the expectations of the BAC and the City Council because they wanted to focus their efforts and have some clarity and definition for the commission. The subcommittee reviewed the strategy, work plan and ordinance for the commission and reaffirmed the role of the commission as an advisory body to the City Council. They plan to focus on bigger areas of the budget which would include all projects valued at$200,000 or more and new projects that are out of the budget cycle. They defined the methodology to use to determine when a comprehensive analysis was needed, CITY COUNCIL MINUTES July 21, 2009 Page 4 deciding it would take a majority of the BAC to determine if it was an item that required comprehensive analysis. If a comprehensive analysis is required, they would either request staff to present a detailed report on the item to the BAC at their next meeting or form a sub-committee of the BAC if that was needed to provide more focus on the item. After the BAC has discussed information presented by staff or the subcommittee, they would vote on a recommendation to the City Council. A majority vote of the BAC would be required to forward the recommendation to the Council. She noted the 2009 work plan for the BAC has been provided in the Council packets. Case thanked Ms Agner for her presentation and for the time put into the material presented. He said after reviewing the information presented, he agreed the group ought to review everything the City does and how we do it to try to make government more efficient and to conserve resources. His concern is when the BAC appears to get into City Council prerogatives. He thought the group's looking at a building or real estate, some of which may be programmatic, is touching too close to the Council's decision making prerogative. He said the issue of funds and fund balances varies from one city to another and that also gets into a Council prerogative. He noted he has seen the power of the BAC getting out in front in the newspaper on issues that are philosophical and which should have remained at the Council level. Ms Agner said the commission is very supportive of the concept that they are not a decision-making body. Nelson said she hoped the BAC's review of the City staff work plan doesn't indicate the BAC would have any authorization to comment on what that work plan should be. She was not sure the BAC has much of a place in reviewing the bidding process for contractors because that is set up by the state and it has to be a competitive process. Ms Agner said the BAC has frequently asked how they could be the most helpful, and they do want to work in concert as a group. Duckstad also thanked Ms Agner for the presentation and noted he thought the BAC has done an extremely good, conscientious and valuable job for us since it was put together. He thought it was a treasure for the City to have seven people look at the financial figures and come up with ideas. He thought the mission statement makes it amply clear the BAC is an advisory commission, and he welcomes the good ideas they bring. Aho thanked the BAC for their good work in evaluating the volume of data involved. He encouraged the BAC to continue the work and noted the Council appreciates it. Young thought it is a good work plan and he supports it. He noted all City commissions deal with issues before they get to the City Council and so we have to deal with that situation. Neal said he wanted to assure the Council he had the ability to provide feedback and input on the BAC's goals and work plan. He said they have discussed the BAC becoming more of an accountability body. They would look at a policy set by the CITY COUNCIL MINUTES July 21, 2009 Page 5 City Council and then determine if staff is following that policy. If they feel there are some holes in the policies, they could make a recommendation. They would make sure the Council's established policies are being implemented in the community. MOTION: Aho moved, seconded by Duckstad, to approve the Budget Advisory Commission 2009 Work Plan. Motion carried 5-0. VIII. CONSENT CALENDAR A. CLERK'S LICENSE LIST B. APPROVE SECOND READING OF ORDINANCE NO. 6-2009 AMENDING CITY CODE SECTION 9.07 RELATING TO DANGEROUS DOGS C. PARTIAL RELEASE OF DEVELOPMENT AGREEMENT FOR EDEN BLUFFS D. ADOPT RESOLUTION NO. 2009-37 RELATING TO ISSUANCE OF GENERAL OBLIGATION EQUIPMENT CERTIFICATES OF INDEBTEDNESS, SERIES 2009B FOR$2,455,000 E. ADOPT RESOLUTION NO. 2009-44 AWARDING CONSTRUCTION CONTRACT FOR FLYING CLOUD DRIVE TRAIL PROJECT TO NORTHWEST ASPHALT, INC. F. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH HTPO FOR CONSTRUCTION PHASE SERVICES FOR FLYING CLOUD DRIVE TRAIL PROJECT G. ADOPT RESOLUTION NO. 2009-45 APPROVING COST PARTICIPATION AGREEMENT WITH HENNEPIN COUNTY FOR THE FLYING CLOUD DRIVE TRAIL IMPROVEMENTS H. APPROVE SERVICE AGREEMENT WITH MOTOROLA FOR ONGOING SERVICE OF THE 911 DISPATCH CONSOLE SYSTEM I. AWARD CONTRACT FOR 2009 BUILDING ENVELOPE PROJECTS TO RESTORATION SYSTEMS, INC. J. APPROVE SECOND AMENDMENT TO THE PRAIRIE VIEW LIQUOR STORE LEASE K. APPROVE AGREEMENT WITH SCOTT W. BAKER ASSOCIATES FOR PRAIRIE VIEW LIQUOR STORE RELOCATION AND EXPANSION L. AWARD BID FOR CUMMINS GRILL/STARING EAST PARKING RECONSTRUCTION PROJECT TO DOBOSZENSKI & SONS, INC. FOR CITY COUNCIL MINUTES July 21, 2009 Page 6 $375,496.02 FOR THE BASE BID PLUS $21,880 FOR ALTERNATE#1 AND $33,124 FOR ALTERNATE#2 M. APPROVE CONTRACT WITH HTPO FOR CONSTRUCTION ADMINISTRATION OF CUMMINS GRILL BALLFIELDS & PARKING IMPROVEMENTS N. AWARD OF CONTRACT FOR PLAYGROUND EQUIPMENT AT HOMEWARD HILLS PARK TO WEBBER RECREATIONAL DESIGN, INC. O. DIRECT STAFF TO NOT WAIVE MONETARY LIMITS ON MUNICIPAL TORT LIABILITY ESTABLISHED BY MINNESOTA STATUTES 466.04 Young said he wanted to discuss Items J and K. MOTION: Duckstad moved, seconded by Aho, to approve Items A-I and L-O on the Consent Calendar. Motion carried 5-0. Young asked staff to discuss where we are and what the plan is in regard to relocating the liquor store by Rainbow. He was concerned that we are more than doubling the square footage in that store. Neal said we did an expansion and remodel of the space for the store on Den Road in 2006 which resulted in increased sales at that store. We had a smaller store in the Prairie Village Mall and acquired a more visible location there at the former Snyder store. We implemented a larger store there and that resulted in greater sales. He said staff has been looking for a solution for the Prairie View store for quite some time and the lease expires in September. Staff has been negotiating with the owner of the mall to look for a new location. The Prairie View location has been the least productive store of the three, and we wanted to improve it to be similar to the other two stores. This proposal would increase the size of the store from 4200 to 9400 square feet, and would provide a decrease in cost from$16.50 per square foot to $10.00. It is a bigger space than we really sought to get,but it is a very important location in the old Snyder Drug building. We believe we will see a similar increase in sales at this location. He noted the agreements are always negotiated subject to City Council approval, so that is why the item is on the Council agenda tonight. Young said he was concerned about the size and also that we are a monopoly seller of liquor in this town. He didn't believe that more people actually found the liquor store in Prairie View Mall after it was moved. He noted the recommendation made a couple of years ago was to reduce the size at Prairie View, which we did. Now we are proposing to more than double it and he thought we would be paying for space we don't need. Duckstad said he agreed and he was not happy with the fact that Eden Prairie is involved in a free enterprise project. Our job is to provide core government services and he was not in favor of the expansion. CITY COUNCIL MINUTES July 21, 2009 Page 7 Case thought the issue being discussed is whether it is justified to expand the store. He said we have been dealing with the philosophical question for 30 years and have explored it in depth. We realize close to $1,000,000 in net savings to our taxpayers and letting that go would require a 3% instant tax increase just to stay even. He agreed the current location is somewhat hidden and asked how many years the lease is for. Neal said it is ten years. Case said he would be in favor of this proposal based on our track record at the other stores. Young asked what data we have to correlate an increase in sales to the change in location. Neal said there is some data that correlates and we believe the changes made to the locations have something to do with the increased sales. Young thought that means it is not a provable point. He said his concern is about the consistency in the recommendations we are getting for the Prairie View store, and he was not sure we need twice the square footage at that location. Neal said we did not begin these negotiations with the goal of getting 9400 square feet. We wanted something less than that; however, there is a trade off for this spot in this mall. There is not a reasonable way to segment the space to give us the 7500 square feet we originally wanted. This kind of lease rate is at almost rock bottom levels, and this is also a good time to bid construction work to renovate the building. We are not able to break up the building into a smaller space and are working on a plan that will take advantage of all the space. Young said he understood we need a new lease,but he would like to know what it would cost at the current location to re-up the lease. Neal said he did not believe we have that option at this time. Sue Kotchevar said they would not give the current space to us at this rate. She said the current store at Prairie View is too crowded and we were looking to expand it a bit. Young asked if we will be paying more than at the Snyder location if we stay at the current space with a new lease. Kotchevar said it would be very challenging to bring the current location price down to $10.00 through the negotiation process. Frank Sherwood, Colliers International, said he has been advising the City on this transaction. He said this is a very good time to be a tenant looking for space. This particular lease proposal is significantly below market conditions, which typically range from$16.50 to $28.00 per square foot. The landlord is anxious to make it work for the City because the space is not divisible, so they have given a rate significantly below market as an enticement to the City. The City is getting the benefit of a phenomenal opportunity in the market place. Young asked if the fact the landlord is in such dire straits would not benefit us in renegotiating the current space. Mr. Sherwood said it would not be at$10.00 per square foot. Young asked if we know what the rate would be on the current space. Mr. Sherwood said we don't have that on file. Young said he would like to know that when we compare one space to another. Mr. Sherwood said he believed they asked the landlord for a renewal in the current space, and they then came back with the deal on the larger space. CITY COUNCIL MINUTES July 21, 2009 Page 8 Young asked when the Council needs to act on this item. Neal said the current lease expires September 30. Mr. Sherwood said we need to make a decision in order to get it built out by Thanksgiving. Young thought it would be a useful piece of information to know the cost to stay in the current space. Duckstad asked what period of time the favorable price for the new lease would cover. Mr. Sherwood said it is ten years. Duckstad said it may not be a good deal to negotiate this since at the end of the ten years the landlord could raise the price and we would have already refurbished the space. He said we need more information and he was not in favor of the expansion. Kotchevar said we would probably spend some money upgrading the store at the current location. She noted we are paying $14.00 per square foot at the Prairie Village store. Nelson said $10.00 per square foot is extremely attractive. She asked how much sales went up at the Den Road and Prairie Village Mall stores. Kotchevar said sales are up 14% for the first six months at Prairie Village and 6-7% for the first year at Den Road. Nelson asked how we would justify the 34% increase in rent. Kotchevar said we will cover the increased costs in the first two years. Nelson said her first goal is to keep taxes down, and revenue from liquor stores is one of the best deals for taxpayers. She asked why we suggested downsizing at the Prairie View store a few years ago. Neal said we suffered a decrease in sales in that location just a year before we had an option to return some of the space. He thought in retrospect that was not the best decision. Nelson said she has heard people say they really like the Den Road store and the extra space at Prairie View would allow us to do some of the same things. She asked if we have any idea what we might do with the extra space. Neal said there are some early ideas, and this store has an orientation towards beer, so there is a great opportunity to do something with beer sales. There is the possibility of using the extra space as warehouse space that would allow some greater purchasing leverage for the other stores as well. Nelson asked if there are any plans to do anything to bring more customers in such as having classes. Kotchevar said we started a wine club and have had various educational opportunities, so we would continue that. Nelson said we have had successful opportunities for education, and she thought this is an excellent location and the price seems to be good even though it is more space than we wanted. She asked if the owner will be putting some money into the build-out as well. Kotchevar said they will. Nelson said she thought it is worth doing and she didn't think we can easily stay where we are. Aho asked about the difference in size between the current stores at Den Road and Prairie Village versus the 9400 square feet proposed here. Kotchevar said Prairie Village is about 8000 square feet and Den Road is a little under 8000. Aho asked what the difference would be in terms of overhead cost. Kotchevar said the rent at Prairie Village and at Prairie View would be the same, and there is no rent at Den Road because we own the building. Aho asked what we are looking at as possible CITY COUNCIL MINUTES July 21, 2009 Page 9 options at the end of the ten year lease. Mr. Sherwood said during the ten years there would be increases of 25 cents every other year, so the final rate would be $11.00 at the end of the lease. Kotchevar said ten years is a long time and at that point we would be looking at upgrading and remodeling the store so we could also make other decisions then. Duckstad asked if anyone actually attempted to renegotiate the current lease with the current owner. Kotchevar said we wanted to be able to add more space. Duckstad asked if that meant no one asked the landlord about renegotiation. Neal said we proposed that to the mall owner but they did not answer that proposal and came back with the proposal we have tonight. Duckstad asked how much the remodeling at the current location would cost. Kotchevar said we don't have a firm estimate but at the proposed new store the landlord would pay about$300,000 and the City would spend about the same. Duckstad asked if the cost would be minimal to stay where we are. Kotchevar said we haven't looked into that. Case said this is an enterprise fund so all the money to refurbish or to pay the lease comes out of that fund which is completely separate from the general operating fund. He thought it was a little contradictory to talk about getting rid of our liquor stores which would erase $1,000,000 in revenue to the City and then question giving the stores a chance to actualize more revenue. We are getting an incredible deal that we need to act on. It is our enterprise fund and it provides money that our taxpayers don't have to pay. Staff says this could increase the money coming in to taxpayers so we need to move on this. Young said if we are using net liquor store dollars to offset costs to the CIP fund that does create an obligation taxpayers would have to fill, so we need to be prudent in spending liquor store dollars. His initial concern tonight was that it is too much space,but he was more concerned about the City Council being asked to make a decision with incomplete information. He said it was incumbent on staff to have that information for us so the Council can compare it to see if it is a truly good deal. He asked what the drop dead deadline is for making a decision on either space. Neal said the current lease expires at the end of September so the drop dead date would be the next City Council meeting on August 21. Young asked if there is sufficient time remaining to get the build out completed if we go back to the landlord to get the information we need to know. Neal said the build-out could not be accomplished by the deadline we hoped for. Young asked if there is any reason to believe the landlord wouldn't work with us for holdover rent so we could keep the operation open. Neal thought there was a good chance he would work with us. Young said he would like to know what it would cost if we stay at the current location before making a decision on this. Rosow said the amendment we negotiated says if we cannot get in by November 1, the date would be pushed back to January. We would have to go back to them for information but also to say we don't want it until January and want to hold over at the current location. CITY COUNCIL MINUTES July 21, 2009 Page 10 Aho said he would appreciate more data on what we expect the costs to be to finalize the build-out if we make the move. Kotchevar said we expect our costs would be $300,000 plus another$100,000 for a new beer cooler. Nelson said she understood from the discussion that we are talking about the same rent as Prairie Village, and she had no problem with the build out at that location. We are now talking about having a problem with the same money for a similar build out and she was not sure that was reasonable. There is definitely a reason to be in there for one of the biggest seasons for getting funds. Young was uncertain about the change we made at Prairie Village and we are now talking about adding a lot of space at Prairie View. He had some reservations at the time about moving down at Prairie Village and he now feels that was a mistake. He wanted to be able to compare what it would cost to stay in the current space as opposed to the proposed Snyder's location. Nelson asked if this is important enough to have a second meeting in August. Neal said we have traditionally had National Night To Unite (formerly National Night Out) on the first Tuesday of August. We don't have a Council meeting on the calendar for that night but we could add that back and notice it out. Nelson said she has no problem with having a short meeting in connection with the National Night To Unite event. Neal said staff will follow up with some of the questions and if there is enough time to get answers and notice a short meeting that night we will try to put it together. IX. PUBLIC HEARINGS /MEETINGS A. VACATION OF DRAINAGE AND UTILITY EASTMENTS OVER PORTION OF GARRISON FOREST SECOND ADDITION (Resolution No. 2009-46) Neal said official notice of this public hearing was published in the July 2, 2009, Eden Prairie News and sent to three property owners. The property owners have requested the vacation of a portion of the underlying drainage and utility easements dedicated with the plat of Garrison Forest Second Addition to correct an easement encroachment of their deck. Dietz noted there is a revision to the item printed on goldenrod paper that includes a small correction made in the item description and in the title of the resolution. There were no comments from the audience. MOTION: Case moved, seconded by Duckstad, to close the public hearing, and to adopt Resolution No. 2009-46 vacating that certain drainage and utility easement lying 5 feet on each side of, adjacent to and parallel with the common line between Lot 2, Block 4 and Lot 3, Block 4, Garrison Forest Second Addition; except that part thereof lying southerly of a line drawn parallel to, and 5 feet northerly from the southerly line of said lots. Motion carried 5-0. CITY COUNCIL MINUTES July 21, 2009 Page 11 B. FIRST READING OF ORDINANCE AMENDING CITY CODE SECTION 11.51 RELATING TO STANDARDS FOR PROTECTION OF WETLANDS Neal said official notice of this public hearing was published in the July 2, 2009, Eden Prairie News. City Code Section 11.51 Sections A and B are being amended to consolidate the requirements for completing a wetland delineation, wetland determination and/or no-loss determination onto an application form that is to be completed and submitted to the City for approval. This will provide the City and the applicant an easy-to-use tool to ensure that all the various requirements of the City Code and Wetland Conservation Act are followed for projects that involve wetland conditions. The Planning Commission reviewed the City Code Amendment on June 8, 2009, and it was approved with a vote of 6-0. Dietz said essentially the code is being amended to require the use of an application form. There were no comments from the audience. MOTION: Aho moved, seconded by Nelson, to close the Public Hearing and to approve first reading of an ordinance amending City Code Section 11.51, Standards for Protection of Wetlands. Motion carried 5-0. X. PAYMENT OF CLAIMS MOTION: Duckstad moved, seconded by Nelson, to approve the Payment of Claims as submitted. Motion was approved on a roll call vote, with Aho, Case, Duckstad, Nelson and Young voting "aye." XI. ORDINANCES AND RESOLUTIONS XII. PETITIONS, REQUESTS AND COMMUNICATIONS A. REQUEST FOR ADDITIONAL GRAVE MARKER AT PLEASANT HILL CEMETERY Neal said City staff has received a request from Ms. Judy Clark and Mr. Bruce Clark to add a second marker to a gravesite occupied by Thomas and Pansy Clark and the cremated remains of Thomas and Pansy's grandson, Thomas Clark. Currently, the gravesite has a marker that takes up the allotted space allowed by cemetery rules. An additional marker has been made for Thomas Clark and it is their request that the marker be placed on the grave. The current regulations allow only one marker per site. He said the City Council is the authority to modify or make exceptions to the cemetery rules. The current rules and regulations were recently reviewed by the Cemetery Task Force and reviewed and approved by the City Council. These types of requests have been brought forward in the past,but on an infrequent basis. He noted the request was reviewed at staff level and does not create any maintenance hardships for staff. CITY COUNCIL MINUTES July 21, 2009 Page 12 Case said it seemed there may be a need to have staff look to make sure our regulations are consistent. He was in favor of approving the request tonight,but he thought it should be sent back to staff to look at the issue of markers for burials. Duckstad said he would like to know if this is routinely requested. Lotthammer said staff went back through the file to look at previous requests and we could only find a couple that occurred several years apart. Our rule says we can have no more than one unless prior approval is given. We look at the configuration and size, and in this case it is not a double monument. We might recommend denial if it were a separate monument or a replacement. He thought it would be good to continue to require prior approval, but he was not sure there would have to be a Council review or if it could be a staff decision instead. Duckstad asked what staff is recommending. Lotthammer said we recommend in this case that we allow the second marker. MOTION: Nelson moved, seconded by Duckstad, to approve the request by Ms. Judy Clark and Mr. Bruce Clark as an exception to current rules to allow a second maker to be placed on the gravesite occupied by Thomas and Pansy Clark and their grandson Thomas Clark. Motion carried 5-0. XIII. APPOINTMENTS XIV. REPORTS A. REPORTS OF COUNCIL MEMBERS 1. Council Member Duckstad Duckstad said at the last meeting Mr. Neal presented a report relating to CIP projects for 2009. After reading the report he had questions on a couple of the projects. Referring to the information he provided on goldenrod paper, he said there are two projects involving improvements to Preserve Boulevard,both of which are budgeted at$1,750,000 and both of which are delayed to 2010. He asked if both projects would come out of the CIP budget. Dietz said both of those projects are municipal state aid projects and that would be the source of funding. Duckstad then asked if the Cedar Hills Park Development Phase 1 project has been completed. Lotthammer said this entails property that has been contemplated with the Airport Commission to build a future neighborhood park as part of the Memorandum of Understanding of 2002. In order to obtain that property we need to absolve them of some of their assessments which will entail a transfer from the Park Improvements Fund to the Public Works Department. We have not made this transfer and we have delayed the project into the future because of the lack of cash flow into cash park fees. Duckstad asked about Phase 2 of that project. Lotthammer said that will occur some years from now. CITY COUNCIL MINUTES July 21, 2009 Page 13 2. Council Member Nelson Nelson said we have been getting a lot of reports printed in color. She would prefer to get the reports emailed to her. She didn't see any reason to get the more expensive printed reports when we could access them online. That would help us to go more paperless and save costs of printing. Young asked if we put those on the website. Neal said we do some of them but not all, so we need to get everyone into that habit. 3. Council Member Case Case said at a recent Council meeting he reported meeting with Jeff Hamel at a resident's home. He recently had a meeting with Jeff Nawrocki, the Flying Cloud Airport Manager, who gave them a tour of the tower and a drive around the airport expansion zone on Spring Road. He said several points came up that would fit well with the Flying Cloud Airport Commission (FCAC) and possibly the Zoning Board. He would like to see them review the FAA-mandated relocation of the tower and request the City be part of the decision when it is relocated. He also thought it was doable to screen the new approach lights on the south side near Hennepin Village, which is something that really concerned the Homeowners Association president from that section. When they were driving up along the new expansion on the western end, it became apparent that 10-15 of additional berm would take the sight line view back from Hennepin Village. He said a lot of residents along the Hennepin Village side are concerned about the deforestation and replanting of the berm. There are now six associations within Hennepin Village that have officers, and he suggested since they are one of the neighborhoods that is most impacted by the airport expansion, the FCAC might facilitate a meeting with the homeowners and MAC. He wanted to get the idea to the FCAC. Young said staff could pass that thought on to the FCAC. B. REPORTS OF CITY MANAGER Neal said he has several announcements in addition to the City Attorney Selection Process item. He said August 4 is Eden Prairie National Night to Unite, and we typically take Council Members to the neighborhood events that night. The consensus of the Council Members was to do that again for this year's event. Neal said the original budget plan called for setting the primary levy at the Council meeting on September 15,but we have to have it completed on or before that date so we will need to restructure our budget process a little. We had planned for the meeting on September 1 to be a workshop, but we may need to change that to make a preliminary decision on September 1. Neal said the bond sale approved on the Consent Calendar tonight for$2.4 million in new debt financing received a rate of 1.8% which is extraordinarily low. It CITY COUNCIL MINUTES July 21, 2009 Page 14 reflects the market but also the work done by the City Council and staff and the investments our residents and businesses make. Eden Prairie has a pretty strong local economy and that makes a difference in the interest rates we pay for financing. 1. City Attorney Selection Process Neal said he reviewed the process at the June meeting and we have now added dates to the proposed City Attorney selection process. Staff is asking for approval of the proposal tonight and, if it is approved, will begin implementing it this week. Young said he thought the process looks fine except he was not sure 30 days up front is enough time to send the word out and receive responses. He thought we should lengthen the initial period to 45 or 60 days. Duckstad said he would prefer 60 days. Neal said we could do that,but it would cramp the other end of the cycle after we make the award if there is a transition from one firm to another. Nelson said she had requested we get some information from the prosecutors' side about their past history with regard to outcomes. She was not sure if that was covered in this material. Neal said he recalled that conversation and we have talked to the prosecutor about that. We are working to develop a metric to use to judge performance,but that has been difficult to identify and is not in the material tonight. We will continue to work on that and try to develop something to bring to the Council. Case asked if that would be the number of prosecutions brought or successfully prosecuted. Nelson said it would be successfully prosecuted as there seems to be a difference in background and also a difference in how many cases they have completed successfully. Case said he recalled last time we discussed it this was a philosophical issue. He said it costs more to prosecute more so he didn't know that the raw number gets us what we want to know. Nelson said she wanted to know if they generally tend to prosecute, and not only how many they bring but also how successfully they are prosecuted, so both numbers are part of the picture. Neal said there is an area in the RFP form where we look at prosecutorial activities, and those numbers are not filled in on tonight's material. We are gathering that data and will have something by the end of the week. Nelson said it is okay if it is still being looked at. Neal said we can back up the initial consideration process 30 days and make it fit with the schedule. MOTION: Case moved, seconded by Aho, to approve the attached timeline,per Council discussion tonight, and the Request for Proposal for City Attorney and Prosecuting Attorney Services. Motion carried 5-0. CITY COUNCIL MINUTES July 21, 2009 Page 15 C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR D. REPORT OF PARKS AND RECREATION DIRECTOR E. REPORT OF PUBLIC WORKS DIRECTOR F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY Rosow said we have been involved in mediation in the case of CM Construction versus the City of Eden Prairie, and he has recommendations relating to settlement that need confidential attorney client discussion in a closed session. He said the Council could withdraw to a closed session and come back into open session after the discussion. MOTION: Nelson moved, seconded by Case, to move to closed session. Motion carried 5-0. The Council moved to closed session at 8:55 PM and returned at 9:10 PM. Rosow said we have a proposed settlement to settle the dispute for the payment of $165,000. MOTION: Duckstad moved, seconded by Case, to approve the settlement with CM Construction in the amount of$165,000. Motion carried 5-0. XV. OTHER BUSINESS XVI. ADJOURNMENT MOTION: Duckstad moved, seconded by Nelson, to adjourn the meeting. Motion carried 5-0. Mayor Young adjourned the meeting at 9:11 PM.