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City Council - 09/15/2009 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY, SEPTEMBER 15, 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 7:07 PM after the HRA meeting was adjourned. All Council Members were present. II. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Neal noted there are two items on goldenrod paper to supplement agenda Items XII.A.1., XII.D.1., and new item XII.E.1. He also added Item XII.B.2. Update on Leal Services Proposals. MOTION: Duckstad moved, seconded by Nelson, to approve the agenda as amended. Motion carried 5-0. III. PROCLAMATIONS/PRESENTATIONS A. ABC STUDENT WELCOME Each of the students in the Eden Prairie ABC program introduced themselves and gave their grade in school and where they were from. They invited the audience to participate in their 5K run on October 10 at Purgatory Creek and their November 51h gala and auction. B. BLUE CROSS BLUE SHIELD ACTIVE COMMUNITY LIVING AWARD Jeremiah said on September 4t' Council Member Case and City Planner Mike Franzen, attended an award luncheon where the Blue Cross Blue Shield Active Community Living award was presented to the City. The award is an active community award for community design and land use, and the City received the award because we included an Active Community Living chapter in our Comprehensive Plan and developed a site planning guide for developers to incorporate active living design principles into their plans. The City received a $75,000 grant for staff and consultant time to develop the chapter and the developers' guide. She noted we are the only city in the metropolitan area to have a health component in our Comprehensive Plan. She said Mr. Franzen has been asked to train CITY COUNCIL MINUTES September 15, 2009 Page 2 other planners in the state on this subject. Jeremiah then presented the award to Mayor Young on behalf of Blue Cross Blue Shield. Case said he had the opportunity to be at the event to receive this award, and it was an amazing moment of pride to have the opportunity to stand and represent the City of Eden Prairie in receiving an award as a contributor to the health and welfare of our residents. He offered special thanks to Mike Franzen who spent a lot of time applying for and working on this grant over the past couple of years. IV. MINUTES A. COUNCIL WORKSHOP HELD TUESDAY, SEPTEMBER 1, 2009 MOTION: Aho moved, seconded by Duckstad, to approve the minutes of the City Council Workshop held Tuesday, September 1, 2009, as published. Motion carried 5-0. B. CITY COUNCIL MEETING HELD TUESDAY, SEPTEMBER 1, 2009 MOTION: Case moved, seconded by Duckstad, to approve the minutes of the City Council Meeting held Tuesday, September 1, 2009, as published. Motion carried 5-0. V. REPORTS OF ADVISORY BOARDS & COMMISSIONS VI. CONSENT CALENDAR A. ADOPT RESOLUTION NO. 2009-57 DECLARING PROPERTY ABANDONED B. APPROVE AGREEMENT WITH SCOTT W. BAKER ASSOCIATES, INC. C. ADOPT RESOLUTION NO. 20009-58 DECLARING COSTS TO BE ASSESSED AND ORDERING PREPARATION OF SPECIAL ASSESSMENT HEARING ROLLS AND SETTING HEARING DATE MOTION: Duckstad moved, seconded by Case, to approve Items A-C on the Consent Calendar. Motion carried 5-0. VII. PUBLIC HEARINGS/MEETINGS A. RESOLUTION NO. 2009-59 AUTHORIZING ADOPTION OF AMENDMENTS TO THE CAPITAL IMPROVEMENT PLAN AND ISSUANCE OF GENERAL OBLIGATION CAPITAL IMPROVEMENT PLAN (CIP) BONDS Neal said official notice of this public hearing was published in the August 27, 2009, Eden Prairie News. The City's financial advisor has identified an opportunity to refinance bonds and realize approximately $103,000 in savings. The 2000A bonds originally issued as HRA bonds to finance Fire Station #1 on Scenic CITY COUNCIL MINUTES September 15, 2009 Page 3 Heights Road will be redeemed. The City will issue new CIP bonds at a lower interest rate to realize this cost savings. There were no comments from the audience. MOTION: Case moved, seconded by Nelson, to close the public hearing, and to adopt Resolution No. 2009-59 authorizing the adoption of amendments to the Capital Improvement Plan and issuance of General Obligation Capital Improvement Plan bonds. Motion carried 5-0. B. FIRST READING OF ORDINANCE AMENDING CITY CODE CHAPTER 11 RELATING TO GARAGE SALES Neal said official notice of this public hearing was published in the September 3, 2009, Eden Prairie News. The City Council reviewed a report from the Director of Community Development relating to garage sales on April 21, 2009. Based on City Council input the draft ordinance was changed to address the following: • Every item for sale does not need to be used. (covered by definition) • The ordinance may limit the number of days. (4 days per sale, and 4 times a year) • The ordinance may require that people live in Eden Prairie. (sellers required to be City residents) • The ordinance may limit where sales are held.(held at the primary residence) Neal said the Planning Commission voted 5-0 to recommend approval of the code amendment at the August 24, 2009 meeting. Jeremiah said staff tried to address the concerns raised by the Council Members the last time this item was discussed. She noted the ordinance will be enforced by complaint only. There were no comments from the audience. MOTION: Aho moved, seconded by Case, to close the public hearing. Motion carried 5-0. Regarding Item 4 under the conditions for garage sales, Nelson questioned the requirement that all sellers must be residents of Eden Prairie because she thought many residents have sales with friends or relatives who do not live in Eden Prairie. She didn't see any reason to limit friends from going in on a garage sale with a resident. Young thought that was a fair comment and asked what the thought was behind stating that all sellers must be residents of the City. Jeremiah said it was primarily an attempt to allow neighborhood types of garage sales but to draw a line between those sales and those that are more of a business, such as a consignment business. She said they would not have a concern with family members coming in to participate in the garage sale, but rather it was a way to control it from getting too CITY COUNCIL MINUTES September 15, 2009 Page 4 big. Young asked if those types of concerns aren't controlled by the limit on the number of days and number of times per year. Jeremiah said we could make an amendment prior to second reading to eliminate the restriction that all sellers be residents. Nelson said earlier in the year Ms Jeremiah said we have some other ordinance about home businesses in garages. Jeremiah said the intent of the garage sale ordinance is to distinguish this ordinance from the Home Occupancy ordinance which prohibits retail sales at a residence. Aho agreed that it is too restrictive to require all sellers be residents of the City. Case said we do have to be careful on the slippery slope of having a building owned by someone but then having an organization outside of Eden Prairie come in to run the sale. The family idea is great and gets to the matter of a business organization that takes rental of a building for a four day period. He thought it is problematic if we open it up and lose sight of the original reason for the ordinance. Young said if it was someone renting out the house he thought we could control the use by specifying that the homeowner needs to be a seller at the garage sale. Jeremiah said that is a provision in the ordinance. Case said he didn't think we will have the issue arise, and if we have a problem he thought we could extend it to family members or some such wording. Jeremiah said we could change it by removing the residence requirement. Young said the definition of garage sale states the sale has to be held at the primary residence of one of the sellers. Jeremiah thought we are fine there, but would have to change it to families in Item 4. Aho said he was in favor of just deleting Item 4 because he didn't think we need to restrict it to family members. Case asked if that would open it up to something that is unforeseen. Aho said he didn't think it would with the other provisions in the ordinance. Rosow said we did change the definition to say the sale must be held at the primary residence of at least one of the sellers. Nelson asked if we stated it must be held at the primary permanent residence. Rosow said the way the definition is written doesn't allow for a seller who is not a primary resident. We can tweak the definition of garage sale and take out Item 4 and that would accomplish the objective. That would mean a sale would have to have a seller who lives there as one of the sellers. Nelson said she would like to get at the idea that someone couldn't rent something for four days. Rosow said he was comfortable with using the term"primary residence." MOTION: Case moved, seconded by Aho, to approve 1st reading of the ordinance amending City Code Chapter 11 adding a definition for garage sales and garage sale regulations and amending the definition prior to second reading per the discussion by the Council. Motion carried 5-0. CITY COUNCIL MINUTES September 15, 2009 Page 5 VIII. PAYMENT OF CLAIMS MOTION: Duckstad moved, seconded by Case, 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." IX. ORDINANCES AND RESOLUTIONS X. PETITIONS, REQUESTS AND COMMUNICATIONS XI. APPOINTMENTS XII. REPORTS A. REPORTS OF COUNCIL MEMBERS 1. SWLRT Route — Council Member Nelson (Resolution No. 2009-60) Nelson noted there is a motion regarding Southwest Light Rail Transit on the goldenrod sheet. She said she sits on the Policy Board for the Southwest Transitway and it is her understanding the Technical Advisory Committee has unanimously approved one of the proposed lines, Route 3A. The Eden Prairie City Council has passed similar resolutions about Route 3A, and the various cities have been encouraged to either reaffirm or affirm their approval of the preferred route. She read the proposed resolution. Duckstad asked if this is the same route that is being recommended by the Eden Prairie Chamber of Commerce. Neal said it is. Aho said it is important that we do state our preference for this route. He thought the majority of our residents and our businesses are in favor of this route, and it makes the most sense for the City of Eden Prairie. He was very much in favor of approving the recommendation. MOTION: Aho moved, seconded by Nelson, to adopt Resolution No. 2009-60 endorsing the recommendation of the Southwest Transitway Technical Advisory Committee concerning the recommendation of Route 3A as the locally preferred alternative for the Southwest Transitway. Motion carried 5-0. Neal said the recommendation of the Technical Advisory Committee now goes to the Policy Advisory Commission, and that group is hosting a public hearing on the recommendation at the Eisenhower Theater in Hopkins this Thursday night at 6:30 PM. On October 14 the Policy Advisory Commission is scheduled to take an action on that recommendation. He said this resolution will be passed on to the Policy Advisory Commission and to the Hennepin County Light Rail Authority. If they do approve this option, the route will become their recommended locally-preferred alternative. That CITY COUNCIL MINUTES September 15, 2009 Page 6 recommendation then gets forwarded to the Hennepin County Regional Rail authority, and they will hold their own public hearing on October 20. If they approve it at their meeting on November 3, it will be forwarded on to the Metropolitan Council where we will ask for their affirmation it is their recommended route. If it is their recommended route, it gets incorporated into the Met Council's Transportation Plan, and it then becomes the basis for the Federal funds application. 2. Lower Minnesota River Erosion—Council Member Case Case said for several years at least there have been problems in the river bottoms area, particularly south of Riverview Road and west of the old town of Hennepin. We have had concerns raised the last couple of years about the malfunction of storm water retention ponds. He said he walked down there six months ago and saw something black oozing out of the hillside. There are general concerns about the changing of the river's course. He thought it might be good to have our City Manager talk about what the City is doing in terms of coordinating everything that is going on, the concerns we have as a City, and how we are addressing those concerns. Neal reviewed the various things we have been doing in this area. In July we had a citizen who expressed concerns about the condition of some of our storm water treatment facilities in the general area described. We had some conversations with the resident and also with State agencies about this. The State agencies directed us to develop a plan to manage storm water better in the area. We hired a consulting firm in July to design some plans for that project and submitted the plans to the MPCA in August. We are awaiting approval from the MPCA before we go forward with any projects in the area. Neal said at the last Council meeting the City Council adopted a resolution asking for the assistance of the Army Corps of Engineers in trying to define what the problems are along the north riverbank. We shared that with the Lower Minnesota Watershed District (LMWSD). After meeting with Terry Schwalbe of the LMWSD, the two of them, together with City Attorney Rosow and Mr. Dietz, drafted a joint letter to residents on Riverview Road letting them know we are taking a look at the issue and what that would look like from their perspective. In addition Mr. Dietz had a meeting last week with the Corps of Engineers at the site. Dietz said the letter that went out to the residents also gave a web address that had the results of the study posted on it. The LMWSD has solicited and received proposals from four consulting firms who want to look at that segment of the river and determine a solution for controlling the erosion. The LMWSD will consider those proposals at their meeting next week. Young said this is an important issue to the Council and to the City, and the Council wants to be kept fully advised on the situation. CITY COUNCIL MINUTES September 15, 2009 Page 7 Case thanked staff for the report and noted one important consideration here is that we are really not alone in this. This is a potentially serious matter but we will be involved with other entities that are sharing in this concern. It is good that everybody is looking at this and not waiting until some serious problem emerges in the future. Duckstad said he was encouraged we are looking into this problem so it doesn't get more serious. He asked if this is the sole responsibility of Eden Prairie or if it is the responsibility of the Corps of Engineers. If both are responsible, he asked who would be the primary responsible party. Dietz didn't think there is a clear definition of who is responsible. We enlisted the support of the Corps of Engineers because they have expertise in managing rivers, but they have a serious backlog of work. We did do a study on one of the sites out there, and the cost of that repair was $435,000. If we thought that would solve the problem the Watershed District was ready to enter into an agreement to fund it and solve the problem; however, there are at least three other locations along the bend of the river that are showing signs of erosion. We don't have enough information to show that the $435,000 would not be wasted. The Watershed District has taken a step to do an additional study. The Corps of Engineers has not weighed in on this in regard to such things as dredging the inside of the river and doing things to keep the flow away from the banks. There are things they bring to the table that could help with the situation if we coordinate the efforts. There are real issues that would result if someone didn't take responsibility. Nelson asked Mr. Dietz to expand on the fact that the river is actually changing course through there. Dietz said he could provide the website address for the report that has some very interesting pictures including aerial photos showing the horseshoe shaped segment of the oxbow, and the progression of erosion. In one particular site the river has moved 300 feet closer to the right of way for Riverview Road in the last 72 years. In the location where the storm water pond failed, the river has moved about 100 feet since 1987. This is a natural phenomenon in an oxbow, but the question is whether it is accelerating enough so that we should be concerned. He thought the Watershed District consultants can determine that as well as what to do about it. There may be some other funding available for these kinds of things but first we need to know the scope of the problem. Case said he is greatly concerned with the closeness of the landfill sitting at the top of the bluff with the potential to collapse sometime in the future. He would like to have an update on the current condition of the landfill, who currently owns it, and the condition of the liner. These are important considerations as we go into this other issue of shoring up the river. Neal said the future of the landfill is managed by the MPCA, and staff will meet with them to get an update. CITY COUNCIL MINUTES September 15, 2009 Page 8 B. REPORTS OF CITY MANAGER 1. Amendment to EECBG Application Components Neal said in May the City Council authorized an application for Energy Efficiency & Conservation Block Grant (EECBG) funds. Staff had a chance to do some additional engineering analysis on these projects and found there were better ways to accomplish the outcomes we wanted. We have prepared a revised set of projects with the help of the consulting group. With one exception the projects meet the initial guiding principles of doing something we were going to do anyway and doing something with operating cost savings. The third guiding principle was to leverage even more money, and we can add almost another $100,000 of private utility rebates by doing the projects outlined. The only thing that does not meet the two guiding principles is that we are able to spend this money on some trail construction. We have more trails to repair and construct than we have money in the bank. He said staff hopes to get City Council approval on the revised grant application. Duckstad asked if there are any strings attached from the Federal government as to control of any of the items or requirements that will have to be met if this grant is approved. Neal said there are post-grant receipt reporting requirements that would be part of the consulting agreement with McKinstry and Associates. There are other Federal purchasing and acquisition regulations that are in place for the equipment. The grant reporting requirement for three years following the project completion is a new requirement. Duckstad asked if there is any requirement the money must be spent within a certain period of time or be given back to the Federal government. Neal said he understands we have 24 months to complete the projects, and the projects we are describing we would expect to complete within 12 months. Young asked if the receipt of any of these funds would obligate the City in a financial manner down the road. Neal said the only requirement that would continue to exist would be continuing to report on what we are doing and if it is saving energy. In terms of buying equipment we have to maintain it but we would anyway. There is no extraordinary effort that goes above what we would do anyway. Nelson asked if there is anything we could be doing for engineering efficiency that would save money over a long period of time instead of the trail construction. Neal said one of the new things is the lighting component which uses $135,000 for new LED building lights and facility lighting. We have enhanced that area of the application, and we will be able to light all our facilities as well as all the parking lots with LED. We looked at other areas of our facility management operations, and we think we are getting as much as we can out of this in terms of energy management. CITY COUNCIL MINUTES September 15, 2009 Page 9 Nelson asked if there is anything we could implement to turn off lights or redirect water instead of the trails. Neal replied there is nothing that would qualify. Duckstad said included with the material tonight was a printout listing the four different areas that would be targeted as capital improvements. He asked if the cost of $27,000 budgeted for McKinstry consulting and engineering could be eliminated because we have able engineers in house. Neal said the engineering services we are purchasing from McKinstry are for electrical and industrial engineers specifically skilled in controls. We have people like Kevin Schmieg on staff but the engineering side of this demands specific discipline in that area. We don't have the expertise on staff, so he didn't think we could do this by ourselves. MOTION: Aho moved, seconded by Case, to approve the City's revised grant application to the Energy Efficiency & Conservation Block Grant program. Motion carried 5-0. 2. Update on Leal Services Contract Neal said yesterday was the closing day for legal firms to submit proposals for the City's legal services contract. We split our contract into a civil component and a prosecutorial or criminal component. We received one proposal for the civil proponent and five proposals for the prosecutorial side. We are reviewing the proposals now and have scheduled interviews the week of October 5. A recommendation will come to the City Council at the October 20 meeting. C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR D. REPORT OF PARKS AND RECREATION DIRECTOR 1. Acknowledge Friends of the Eden Prairie Art Center Contribution (Resolution No. 2009-61) Lothammer said staff is requesting a resolution accepting another donation from the Friends of the Eden Prairie Art Center. That group of volunteers was founded about a year ago, and they have undertaken several fundraising events during the year. This donation is to buy equipment for the Art Center including a kiln, pottery wheels and supplies. They plan to use the Eden Prairie Foundation as a fund-holding mechanism. We expect additional funds coming forward in the next few months and he wanted to commend them for their work on the fundraising. Young asked if the $8,000 is sufficient to purchase the kiln and other supplies mentioned. Lotthammer said it was. Young asked about the City's expectation of the Friends of the Art Center and the City's plan. Lotthammer said to date they have held five different fundraising activities CITY COUNCIL MINUTES September 15, 2009 Page 10 and will also be meeting as a group within the next week to chart their course for the next year. They say they have learned a lot with the different types of events that they put on, and their intent is to refocus their direction and try to get the most from their efforts going forward. Their account still has a substantial number of dollars raised, and we are waiting to receive funds for the build out and modifications of the Art Center that were completed. There should be another donation in the next month or so and after that we will have a better picture of the work plan for the coming year. Young said he remembered from the discussions last year that the City Council approved a specific and limited number of capital projects including the parking lot and interior improvements that were mostly paid for by a donation. He thought the Council's expectation of the Friends of the Art Center was that they would raise the funds for the equipment and they had a very ambitious fundraising goal. He wanted to make sure we are still on the same path with our expectations as the Friends of the Art Center are because private support is a critical component of the Art Center. Lotthammer said he has seen their enthusiasm and the awareness they have created in the community. They were very optimistic in the beginning, but they have had to recalibrate their sights. There is another thing coming forward which is the constitutional amendment funds, and we are in a very good position to apply for those grants. We understand a great emphasis is being placed on moving out into the suburbs and for start ups and we fit both those. Duckstad said given the state of the economy he asked if Mr. Lotthammer has a sense that somewhere down the road the Art Center might reach a point where it is at least partially self-sustaining. Lotthammer said we opened in April with classes and have had a ramp up period. We projected that during the first year we would take in about $36,000 in class fees, and to date we have already taken in $38,000. The reception in terms of people wanting to participate and take classes is well beyond what we had expected. The more classes we can have in there, the more funds can go to some of the operating expenses. If we are successful in grants or fund raising, that helps with the Art Center's bottom line. As it continues to gain momentum we can close the gap similar to what we have seen at the Community Center. MOTION: Nelson moved, seconded by Aho, to adopt Resolution No. 2009-61 accepting a gift of $8,200.56 from the Friends of the Eden Prairie Art Center. Motion carried 5-0. E. REPORT OF PUBLIC WORKS DIRECTOR 1. Approve Professional Services Agreement with EPI, Inc. Dietz said the goldenrod item has a motion to approve a Professional CITY COUNCIL MINUTES September 15, 2009 Page 11 Services Agreement with Environmental Process, Inc. (EPI) to provide design and construction phase services to remove and replace the metal roof on the rotunda at the Water Treatment Plant. The contract calls for payment on an hourly basis with a not to exceed amount of$96,400. He said EPI is a specialty firm of engineers and architects who provide forensic investigation for things that may end up as lawsuits. He said we are most likely headed toward litigation on the roof replacement projects at the Water Treatment Plant. Staff recommends we retain EPI for the services because they will do the design, installation and construction management as well as gather the forensic information that we hope will carry the day to receive some money back from the vendors, consultants and contractors. Case asked how long this problem has been going on. Dietz said it has been 11 years,but it started leaking in the second year. MOTION: Case moved, seconded by Nelson, to approve the Professional Services Agreement with EPI, Inc. for design and construction phase services to replace the metal roof on the rotunda area of the Water Treatment Plant. Motion carried 5-0. F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY XIII. OTHER BUSINESS XIV. ADJOURNMENT MOTION: Duckstad moved, seconded by Case, to adjourn the meeting. Motion carried 5-0. Mayor Young adjourned the meeting at 8:08 PM.