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City Council - 10/06/2009 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY, OCTOBER 6, 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: Fire Chief George Esbensen, Parks & Recreation Director Jay Lotthammer, City Engineer Rodney Rue, 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 Troop 342, sponsored by the United Methodist Church, for presenting the colors. III. OPEN PODIUM INVITATION IV. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Chief Esbensen noted there was an item on goldenrod paper that replaces Item VIII.D in the packets. MOTION: Duckstad moved, seconded by Nelson, to approve the agenda as published. Motion carried 5-0. V. PROCLAMATIONS /PRESENTATIONS A. PROP SHOP UPDATE Cindy Eddy, Executive Director of the PROP Shop, gave an update on the PROP Shop. She noted the PROP Shop clients come to them through PROP, churches, and schools. She said the PROP Shop has been very successful since opening just over two years ago and has already outgrown the space. They are able to pay the expenses to keep the shop running and use a lot of their profit to buy things that are needed but have not been donated. They currently have 350 active volunteers, including many student volunteers. Young thanked Ms Eddy for the update and noted she deserves a lot of the credit for their success. Case said Ms Eddy is a great spokesperson for the cause, and the community owes a debt of gratitude to her and to the volunteers for filling social services needs in the City. CITY COUNCIL MINUTES September 15, 2009 Page 2 B. EMPLOYERS ASSOCIATION BEST PRACTICES AWARD Chief Esbensen said the City is receiving this award for its Personal Time Off (PTO) conversion program, which was implemented this summer. Representatives from the Employers Association will present the award to Human Resources (HR) Manager Karen Kurt and her team. A representative of the Employers Association said they have run this program for the past five years throughout the state of Minnesota. This year they are presenting the award to the City because of the well-documented and extensive program developed in the area of PTO. She noted the application was well written and showed a lot of time and due diligence. HR Manager Karen Kurt accepted the award and noted she was very excited to receive the award. She introduced the HR team members and acknowledged the help of the Budget Advisory Commission who recommended the project in 2008. She said it was a big change for City employees but they worked with the HR team throughout the process. Young noted the HR team spent a lot of time on this project and took a leadership role in local governments' use of PTO. C. FLYING CLOUD LANDFILL UPDATE - MPCA Peter Tiffany, Minnesota Pollution Control Agency (MPCA), gave a Power Point update on the Flying Cloud landfill. He noted the MPCA took over responsibility for cleaning up permitted, closed landfills throughout the state after the Landfill Cleanup Act (LCA) was passed in 1994. He said they negotiate with landfill owners or operators and determine what actions are necessary on the site. They monitor the groundwater quality and soil gas and do routine repairs on the landfill. They also get involved with local governments to come up with land use plans. Their three major sources of funding are the solid waste tax, General Obligation bonding for publicly-owned landfills, and a program for insurance recovery. He showed a map that delineated the landfill area and the buffer area to the east that doesn't contain any waste. He said their groundwater monitoring wells on the site show the groundwater is slowly cleaning up. Young asked what is involved in developing the land use plan. Mr. Tiffany said they identify an area of concern for groundwater and one for gas. He noted there is very little outside the property boundaries of the landfill, so not many properties have an issue with groundwater. They would make a recommendation as to what kind of development could occur next to the properties in the area. Case said this has been an ongoing issue in the City, and we have recently heard some concerns from the Minnesota River Watershed District Commissioners about sand and silt instability and the landfill possibly leaching into the groundwater streams. He asked if there is a liner at the bottom of the landfill and if they test CITY COUNCIL MINUTES September 15, 2009 Page 3 whether anything is getting into the underground water streams flowing into the Minnesota River basin. Mr. Tiffany said the landfill is not lined because it was an old gravel pit and there was no requirement for a liner at the time the landfill was begun in the 1970's. He said there was a lot of investigation done in the 1980's through the U.S. EPA Super Fund process, and they were required to put in a good cover and a groundwater treatment system. The treatment system was never turned on because the wells have been clearing up without it. He showed a graph prepared by the MPCA hydrogeologist showing the decline in the total Volatile Organic Compounds (VOCs). The hydrogeologist stated the water is going directly down and into the Minnesota River, so he is not concerned from a groundwater contamination standpoint. Case was concerned that the groundwater is going into the bluff area if it is getting to the Minnesota River. He said there are more unstable areas on the bluffs and several of the underground water streams that come right off the landfill may be destabilizing the silt and sand in the area. Mr. Tiffany said he spoke with the storm water people and they determined the area of destabilization was significantly further east than where the landfill would have an impact on the bluff area. He noted there was concern about a black oozing material, but that was determined to be decayed vegetation and was not related to the landfill. He said they haven't gone to any extensive investigation down from the bluff because indications are there isn't any significant erosion or contamination that is occurring from the landfill itself. Case said eight or nine years ago there were some studies done on the recharging time of aquifers and he was concerned that the water from the landfill is going straight down through the gravel and sand into our aquifers. He asked what the long term plans are to get this completely cleaned up and out of there. Mr. Tiffany said it will not be moved and will remain in place. He said they are in negotiations to get the land transferred to the MPCA. The gas energy plant was abandoned a couple of years ago, and the MPCA wants to take ownership of the property. Once that happens they will rework the cover because there has been a lot of settlement that has caused water to pond on the cover and also caused the gas extraction pipes to sag. Case asked if there was a possibility gas pressure could cause it to blow up. Mr. Tiffany said the gas monitoring system doesn't detect any gas accumulation. Case asked if they have a sense if it will harm the ground water in the aquifers in the long term. Mr. Tiffany said there typically is a retard area between aquifers that is impermeable. Nelson asked if they will try to get the gas plant going again. Mr. Tiffany said they will not get the plant that BFI installed going again, but when they get ownership they will improve the cover and the gas extraction system. They plan to put in a larger, enclosed flare and will upgrade the system. Nelson asked when they will take over the site. Mr. Tiffany said they are in negotiations with the owner now, and there are some property issues that need to be CITY COUNCIL MINUTES September 15, 2009 Page 4 squared away. Nelson asked if they are actively dealing with the site now. Mr. Tiffany said they are. Nelson then asked if there are concerns for the homes next to the buffer area. Mr. Tiffany said the homes are at least 800 feet away from the footprint of the landfill. The gas monitoring system was set up at a 200-foot compliance boundary from the landfill, and that system is currently recording zero gases. They will continue to monitor the system. Nelson asked what his statement meant that the site is in "fairly good shape." She noted the City gets water from wells, and we have homes around the landfill. Mr. Tiffany said when the MPCA took responsibility for maintenance of the landfill in 1998 it hadn't settled as much as it has now. They put in additional drainage pipes through some of the berms and upgraded some of the larger diversion channels. The landfill has continued to settle in part because of the gas extraction system and the degradation of the landfill material. Nelson asked if it is getting worse since it is not getting better. Mr. Tiffany said the cover is not getting better and requires a significant amount of work; however, the groundwater is getting better. Nelson asked when the work on the cover will be done. Mr. Tiffany replied funding is a big issue, but first they need to get ownership of the property. Nelson then asked if it might be 5-10 years. Mr. Tiffany said they hope it is 3-4 years. Nelson asked if gas is still being extracted. Mr. Tiffany said it is in small amounts and they monitor that process. Nelson asked if the City administration gets regular updates about what is going on out there. Mr. Tiffany said Ms Stovring, the City Environmental Coordinator, asked the MPCA to come and update the Council on this. The MPCA website has data about the ground water quality. Duckstad thanked Mr. Tiffany for the helpful report and asked if he believes the landfill is adequately monitored and regulated so the citizens of the City can feel reasonably safe. Mr. Tiffany said he does. Aho asked who would be responsible for the new cover once the MPCA takes over ownership. Mr. Tiffany said the MPCA is 100% responsible for operations and maintenance of the landfill, but they did not take over the liability. Aho asked who is responsible for the cost of the maintenance. Mr. Tiffany said it is 100% the MPCA's responsibility. Aho asked if there would be any time in the future when the landfill area could have an alternate use. Mr. Tiffany said some of the buffer area has potential long range use; however, they are hesitant about that because there will be 80-100 gas extraction wells through the cover that will need to be monitored for the long term. VI. MINUTES A. COUNCIL WORKSHOP HELD TUESDAY, SEPTEMBER 15, 2009 MOTION: Case moved, seconded by Duckstad, to approve the minutes of the City CITY COUNCIL MINUTES September 15, 2009 Page 5 Council Workshop held Tuesday, September 15, 2009, as published. Motion carried 5-0. B. CITY COUNCIL MEETING HELD TUESDAY, SEPTEMBER 15, 2009 MOTION: Nelson moved, seconded by Case, to approve the minutes of the City Council Meeting held Tuesday, September 15, 2009, as published. Motion carried 5-0. VII. REPORTS OF ADVISORY BOARDS & COMMISSIONS VIII. A. CLERK'S LICENSE LIST B. APPROVE SECOND READING OF ORDINANCE NO. 9-2009 AMENDING CITY CODE CHAPTER 11 RELATING TO GARAGE SALES AND ADOPT RESOLUTION 2009-62 APPROVING SUMMARY ORDINANCE C. ADOPT RESOLUTION NO. 2009-63 DECLARING MANLEY DEVELOPMENT INC. IN DEFAULT AND TERMINATING ITS RIGHT TO COMPLETE LANDSCAPING AGREEMENTS D. ADOPT RESOLUTION NO. 2009-64 AUTHORIZING ISSUANCE, AWARDING SALE, PRESCRIBING THE FORM AND DETAILS AND PROVIDING FOR THE PAYMENT OF $1,450,000 GENERAL OBLIGATION CAPITAL IMPROVEMENT PLAN REFUNDING BONDS, SERIES 2009C E. ADOPT RESOLUTION NO. 2009-65 AUTHORIZING MAYOR AND CITY MANAGER TO EXECUTE SUBRECIPIENT AGREEMENTS FOR THE 2009 COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM (CDBG) F. AWARD CONTRACT FOR EDEN LAKE PARK DRAINAGE AND RESTORATION PROJECT TO PARROTT CONTRACTING INC. G. AWARD CONTRACT FOR RECONSTRUCTION OF PRAIRIE VIEW PARK OUTDOOR HOCKEY RINK TO FINLEY BROS. INC. H. APPROVE REALLOCATION OF REMAINING CDBG FUNDS FROM THE EMPLOYMENT ASSISTANCE PROGRAM OPERATED BY JEWISH VOCATIONAL SERVICES TO THE PROGRAM ADMINISTRATION FUND I. APPROVE PROPOSAL FOR COMPLETING ANALYSIS AND DESIGN FOR TWO PONDING AREAS SOUTH OF RIVERVIEW ROAD J. APPROVE CONTRACT WITH GOVDEALS FOR INTERNET-BASED AUCTION OF MUNICIPAL PROPERTY DECLARED SURPLUS K. APPROVE CONTRACT WITH CURB MASTERS, INC. FOR CONCRETE WORK AT THE WATER TREATMENT PLANT TO IMPROVE TRUCK CITY COUNCIL MINUTES September 15, 2009 Page 6 ACCESS AND ENHANCE MAINTENANCE OPERATIONS MOTION: Nelson moved, seconded by Aho, to approve Items A-K on the Consent Calendar. Motion carried 5-0. IX. PUBLIC HEARINGS /MEETINGS A. FIRST READING OF ORDINANCE AMENDING CITY CODE CHAPTER 11 RELATING TO DEFINITION OF PUBLIC FACILITIES AND SERVICES Chief Esbensen said official notice of this public hearing was published in the September 24, 2009, Eden Prairie News. Staff received an inquiry to the interpretation of public facility and service (permitted in all zoning districts) which is defined as those facilities owned by any governmental unit and those services related to electric, gas, telephone, and cablevision utilities. After talking with our City Attorney, a broad interpretation of "facility" could mean a building. The recommendation is to eliminate the definition of public facilities and services and replace it with the following definition of"public infrastructure". • Infrastructure related to municipal utilities owned by any governmental unit including lift stations, well houses, water towers, sewer and water lines, manholes, storm sewer, street lights, stop signs and stop lights, bridges, trails, sidewalks, and infrastructure related to electric gas, telephone and cablevision utilities lines, poles and boxes, but not including buildings except as specified above. Chief Esbenson said the Planning Commission voted 7-0 to recommend approval of the code amendment at the September 14, 2009, meeting. There were no comments from the audience. MOTION: Case moved, seconded by Aho, to close the Public Hearing and to approve 1 st Reading of the Ordinance, amending City Code Chapter 11 by deleting the definition of public facilities and services and adding a new definition to section 11.02; directing the City Clerk to replace the term "Public Facilities and Services" with "Public Infrastructure" in the City Code; and adopting by reference City Code Chapter 1 and section 11.99 which, among other things, contain penalty provisions. Motion carried 5-0. X. PAYMENT OF CLAIMS MOTION: Case 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 CITY COUNCIL MINUTES September 15, 2009 Page 7 XII. PETITIONS, REQUESTS AND COMMUNICATIONS XIII. APPOINTMENTS XIV. REPORTS A. REPORTS OF COUNCIL MEMBERS B. REPORTS OF CITY MANAGER C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR 1. 2010/2011 Human Services Review Committee Social Service Provider Funding Recommendations Jeremiah said funding of the social services provider programs comes out of the General Fund. There is a Human Services Review Committee made up of interdepartmental staff who interview all of the agencies with regard to their requests and who then make recommendations to the City Council based on budget feedback they have received so far. She said they are recommending a total of$160,000 for both 2010 and 2011, and that amount is in the current proposed budget. She said the numbers are a little lower than those for 2009. Staff is asking for Council approval tonight so the agencies will have a better understanding of what their financing will be for next year. Duckstad said he was in favor of the recommendations regarding PROP and Meals on Wheels, but he was not prepared to approve the other items. Young asked if he needed additional information on the other items. Duckstad said he would like additional information before making a decision because this year we are encountering revenue deficits in the City. Young asked when the agencies need this information from the City. Jeremiah said the sooner the better so they can do planning for the coming year, but it is not critical to make the decision tonight. She said staff looked extremely closely at the agencies and the value received by Eden Prairie residents, and in all cases the value received often greatly exceeds the amount the agencies receive. Young said he recalled in years past the City Council received a copy of the applications. Jeremiah said these are the same agencies as last year minus one that was eliminated. Young asked if there was an actual application made for each of the requests. Jeremiah said there was an application for each of them and supporting material as to the work they do and the number of residents served in the community. She said she could provide that information to the Council Members on October 20 and would also suggest the agencies be here to answer any questions. CITY COUNCIL MINUTES September 15, 2009 Page 8 D. REPORT OF PARKS AND RECREATION DIRECTOR 1. Art Center Contribution from Friends of the Eden Prairie Art Center (Resolution No. 2009-66) Lotthammer said this item is accepting by resolution a contribution from the Friends of the Eden Prairie Art Center. These are funds that were raised by the Friends through their activities and from individual contributions to the project. The money is being used to renovate the facility. He said the next step for the Friends is an event planned for December 3, and they are actively planning future events as well. MOTION: Aho moved, seconded by Nelson, to adopt Resolution No. 2009-66 accepting a contribution from The Friends of the Eden Prairie Art Center in the amount of$30,020.21 for supplies, equipment and renovations at the Eden Prairie Art Center. Motion carried 5-0. E. REPORT OF PUBLIC WORKS DIRECTOR F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF Chief Esbensen said there was a plane crash in Eden Prairie about 12:30 PM yesterday. The plane landed in the backyard of a house, and there was a very heroic rescue of the pilot by a passerby. Young noted it was a very remarkable story. Nelson asked if we will have an opportunity to see the people that helped in this crash. Esbensen said we will and we also have some people to recognize for the crash eight weeks ago. H. REPORT OF CITY ATTORNEY 1. Legal Updates Rosow gave a PowerPoint presentation on the open meeting law and some due process considerations for cities. He reviewed the legal requirements for public meetings. He suggested Council Members not use "Reply to All" in electronic communications and that they not send email with an opinion on matters of public business to more than one other Council Member. He reviewed a Hennepin District Court case involving procedural due process and said deciding variance questions at a public hearing is a quasi-judicial setting and the Council must follow the requirements under procedural due process. When deciding a matter in a Public Hearing, Council Members must take an attitude of listening and be aware of inadvertent communications. CITY COUNCIL MINUTES September 15, 2009 Page 9 Young said he was particularly concerned that we cover the Hennepin District Court case because that is very important to us as a City Council. He said we are asked on a routine basis to make land use decisions, and it is important to watch how we behave and how we react to citizens even with groups of friends or voters. It is important to keep impartiality because there are real consequences if we don't. Nelson asked how this would apply to general policy discussions where Council Members are speaking on the record to policy in general but then something comes up in a more specific way after that. Rosow said his opinion is that statements on general policy are entirely legitimate and not the basis for any liability or damage award. The Council is charged with making policy decisions, and Council Members have legitimate opinions on policies. He said we are talking about special circumstances when a matter is subject to a Public Hearing where the Council acts in a quasi-judicial situation. Young asked about statements made by a sitting City Council member or candidate in an election cycle where land use is an election issue. Rosow said for a pending matter a sitting City Council Member would be at a slight disadvantage because Council Members are acting in a quasi-judicial function in that case. A Council Member can state his philosophy about dealing with land use issues if it doesn't deal with individual matters. When you get down to the specifics of a certain proposal and it is going to be part of a Public Hearing process, Council Members have to be very fair about the decision and keep an open mind. 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 8:18 PM.