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City Council - 10/20/2009 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY, OCTOBER 20, 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, 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 Girl Scout Troop 10914 for presenting the colors. III. OPEN PODIUM INVITATION IV. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Case added Item XIV.A.2. MOTION: Nelson moved, seconded by Aho, to approve the agenda as amended. Motion carried 5-0. V. PROCLAMATIONS /PRESENTATIONS A. HENNEPIN COUNTY ATTORNEY UPDATE Hennepin County Attorney Mike Freeman gave a report on the activities of the County Attorney's office and crime in Eden Prairie. He said he is going to each community in Hennepin County to understand what is important to each community. His staff meets at least once a year with the Eden Prairie Police Chief and once with the School Superintendent. He reviewed some of the crime trends and problems facing the community. He said overall we are doing a much better job, and we understand the effort that needs to be taken to do the job. B. EDEN PRAIRIE FOUNDATION UPDATE Nancy Tyra-Lukens, representing the Eden Prairie Foundation, gave an update on the foundation's activities. She said the Eden Prairie Foundation has been around since 1981 and has given out nearly $1,000,000 in grants or scholarships. She said they are reviewing their by-laws and have been examining what the role of the CITY COUNCIL MINUTES October 20, 2009 Page 2 Foundation is in the community. They have a collaborative committee working on determining how they can help the non-profit organizations in the community that have large fund-raising needs. They are seeking a grant to get initial funding for a part-time executive director. They have two main fund raising activities, the Century Club and the Foundation Ball which will be held on March 27, 2010, at the Marriott. VI. MINUTES A. CITY COUNCIL MEETING HELD TUESDAY, OCTOBER 6, 2009 MOTION: Case moved, seconded by Aho, to approve the minutes of the City Council Meeting held Tuesday, October 6, 2009, as published. Motion carried 5- 0. VII. REPORTS OF ADVISORY BOARDS & COMMISSIONS VIII. CONSENT CALENDAR A. CLERK'S LICENSE LIST B. SECOND READING OF ORDINANCE NO. 10-2009 FOR REZONING FROM OFFICE TO COMMUNITY COMMERCIAL (PRAIRIE PHYSICIANS BUILDING) C. ADOPT RESOLUTION NO. 2009-68 MODIFYING TAX INCREMENT FINANCING PLAN FOR TOWN CENTER PHASE ONE TAX INCREMENT FINANCING DISTRICT D. AUTHORIZING PROFESSIONAL SERVICES CONTRACT WITH KERN DEWENTER VIERE FOR AUDITING SERVICES FOR 2009 TO 2011 MOTION: Aho moved, seconded by Case, to approve Items A-D on the Consent Calendar. Motion carried 5-0. IX. PUBLIC HEARINGS /MEETINGS A. 2009 SPECIAL ASSESSMENT (RESOLUTION NO. 2009-69) Neal said official notice of this public hearing was published in the October 1, 2009, Eden Prairie News and sent to eight property owners. He said each year the City Council holds a public hearing to consider levying the Special Assessments that have been identified over the previous 12 months. This year, the Council will address a list of supplemental assessments for such things as contracted removal of snow. The total amount proposed to be assessed in 2009 is $1,887.53. There were no comments from the audience. CITY COUNCIL MINUTES October 20, 2009 Page 3 MOTION: Case moved, seconded by Nelson, to close the public hearing for the approval of the 2009 Special Assessments, and to adopt Resolution No. 2009-69 approving all Special Assessments presented in the fall of 2009. Motion carried 5- 0. X. PAYMENT OF CLAIMS MOTION: Nelson moved, seconded by Aho, 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 XIII. APPOINTMENTS A. CITY ATTORNEY -- CIVIL Neal said the Council is scheduled to award two legal services contracts at tonight's meeting and noted the background material for the two contracts is presented on the two goldenrod items. Neal said the City received one proposal in response to the RFP for civil legal services. That proposal was submitted by the incumbent Richard Rosow of Gregerson, Rosow, Johnson and Nilan. Mr. Rosow's firm has represented the City as its City Attorney for over three decades. Mr. Rosow has provided the City with wise legal counsel during his tenure as the City Attorney. Mr. Rosow's fee proposal for 2010 freezes his hourly fees at the same rates the City has paid in 2008 and 2009. He does not make a fee commitment for 2011 and 2012,but does not commit to seek City approval before adjusting fees in subsequent years of the contract. He said he recommends the City Council appoint Mr. Rosow as City Attorney for a three year time period beginning January 1, 2010. Duckstad said he agreed that Mr. Rosow has been an extremely good lawyer and has delivered excellent services. He was concerned that we received five bids for the criminal prosecution appointment but only one bid for this appointment. He thought it would be to the benefit of the Eden Prairie taxpayers to make an extra effort to seek additional bids so that we have some minimum measure of competition for the job. He asked if the Council would consider putting this vote off in order to make a further effort to invite additional bids from other law firms in the Twin Cities area. Nelson thought our RFP process did go out widely and continuing to advertise is expensive. She said she has been very happy with Mr. Rosow and believes our RFP process was valid. She also did not think now is the time to spend extra money to continue the process. CITY COUNCIL MINUTES October 20, 2009 Page 4 Case agreed with Council Member Nelson, noting there is value both in quality relationships and also in staff time so he was prepared to vote on this tonight. Neal said he thought it was important that the City Council support a fair process. The Council was involved in laying out the process, determining how it would be distributed, and deciding when it would be brought back for approval. By extending the deadline we are putting the incumbent at a substantial disadvantage and would give others an unfair advantage in which to submit a proposal. Duckstad said he didn't realize there was a considerable expense for doing this, and he assumed that someone could simply re-contact the other law firms and ask them to reconsider. He was surprised that an account of this significance would not be of interest to a lot of lawyers in the metropolitan area, especially considering the economy. He thought a further effort would not be that expensive and would also serve the taxpayers well. Young thought it is important for us to step back and remember the process we just went through was a voluntary thing. We are not obligated to put service contracts up for bid,but he thought it was a good thing to do and shows transparency for our processes. During the course of the summer we extended the timeline so we had a lot of time for this process. He said it would not feel right to go back to the marketplace when we have a bid in hand. This is a relationship that is of value to the City Council, and he was glad that Mr. Rosow reapplied. He did not support the idea of doing a rebid on the RFP. Duckstad said it is obvious that the other members of the Council want to move ahead tonight so he was prepared to support the appointment of Mr. Rosow. MOTION: Case moved, seconded by Nelson, to appoint Mr. Ric Rosow as Eden Prairie City Attorney for a three-year period beginning January 1, 2010. Motion carried 5-0. B. CITY ATTORNEY -- PROSECUTION SERVICES Neal said they received five proposals in response to the RFP for criminal prosecution legal services. Proposals under this contract were asked to include a "capped fee" contract proposal, and the fixed fees proposed ranged from$180,000 to $240,000. The proposals received included one from the incumbent firm of Gregerson Rosow. He said Jennifer Inz has been our prosecutor for eight years and has given exceptional service to the City. He said there is an unusual situation this evening regarding Ms Inz in that she has been identified as the attorney that would be their lead prosecutor by two firms, Chestnut& Cambronne and Gregerson Rosow. He said staff is recommending the contract be awarded to Chestnut& Cambronne who proposed a fixed fee of$200,000, contingent upon Ms Inz joining their firm and being assigned as the prosecutor. Neal noted all five firms are qualified to provide prosecution services so staff looked at the intangibles to make a recommendation, and we have the highest comfort level with Ms Inz. CITY COUNCIL MINUTES October 20, 2009 Page 5 Duckstad thought it was good that we got five bids on this project. He noticed the low bid was from Bonner & Borhart, and Pat Leach would be the prosecutor with that firm. He said he has known Mr. Leach for a long time, and he is a tremendous lawyer. He would have no problem supporting Mr. Leach, and we would get the best situation for our taxpayers because his firm submitted the low bid. Case said he could go along with either choice and noted Mr. Leach is Edina's prosecutor. He said in the 13 years he has been associated with the City he has great respect for our staff, so when the Police Department says they respect their working relationship with Ms Inz,he would defer to staff's recommendation even though the bid from Bonner& Borhart is somewhat lower than that of Chestnut& Cambronne. Aho said he also appreciates staff and believes they do a good job of making solid recommendations. He understood why they want to continue with a relationship that is working. He was a little concerned about the situation where Ms Inz is willing to work for either firm. He thought that was not a very comfortable situation and he would support the proposal from Bonner& Borhart, given the comfort level the City of Edina has with using Mr. Leach. Nelson said she understands we have a high prosecution rate with Gregerson Rosow, and Ms Inz has worked on a lot of committees. There isn't a huge cost difference and she would be willing to defer to the Police Chief's recommendation. She noted she had a bit of a problem with one of the City Council Members recommending a friend over a recommendation from staff. Young said he didn't take that from Council Member Duckstad's comments. He thought we have a situation where we have five undoubtedly qualified applicants for the job. When we have no reason to believe any of them would provide a level of service different from what we expect,he didn't know why we would not go with the contract that offers the best price advantage to the City. It is purely a business decision as far as he was concerned, and he noticed that Bonner& Borhart's proposal included the cost of jury trials. Duckstad said he just wanted to point out that he was fortunate enough to know Pat Leach and considered that an opportunity to be in a position to make an evaluation. Case said this is not just a business decision, and there is also a philosophy piece involved. We have heard arguments that different prosecutors in other cities have a different philosophy about how they prosecute. He deeply respected the Police Department coming back and saying they feel comfortable working with an individual and, looking at the political piece of this, he did not think it was worth $20,000. He would stay with the Chestnut& Cambronne firm. Young asked if we have any reason to doubt the qualifications of Bonner& Borhart. Neal said at this stage of the process staff would not pass along any attorney or law firm we felt was unqualified to perform. They are all qualified, and their current clients like them all. He said they talked to police chiefs, city CITY COUNCIL MINUTES October 20, 2009 Page 6 managers and patrol officers and did extensive reference checks with their current clients. He said staff's charge was to recommend to the Council what we thought was the best situation and cost is one element of that. He thought either one of these options is a good option. He would expect a prosecutor to take their cues on the philosophy of prosecuting from us with regard to such things as first time DUI offenders. From staff's view the lowest risk was to recommend Ms Inz because we know how to work with her. Nelson said we have been happy with the attorney we have, and she thought we should consider that fact very carefully. She didn't want to have the reputation that we always take the lowest bidder regardless of the level of service, and she thought we have some responsibility to continue excellent service. Aho said he is in the service business as well and he would not feel it was fair to his firm if his employee offered services both to his firm and another firm. Duckstad asked if staff has any reason to believe that Mr. Leach would not be willing to prosecute for the City of Eden Prairie in a manner that would accept and honor the philosophy we have here. Neal said he had no reason to doubt that Mr. Leach would be able to carry out the duties as we would want. MOTION: Duckstad moved, seconded by Aho, to award the 2010-2012 criminal prosecution contract to Bonner& Borhart. Motion carried 3-2-0, with Case and Nelson opposed. XIV. REPORTS A. REPORTS OF COUNCIL MEMBERS 1. Meeting with Lower Minnesota River Watershed District—Council Member Case Case proposed having a meeting with the Lower Minnesota River Watershed District. He understood the Watershed District has commissioned a report that may be presented in March of next year, so he thought a good time to have the meeting might be after the report is available in March. In the meantime he thought it might be good to have staff discuss with the Watershed District what they are including in the study to make sure the landfill is a component of the study. He thought it might also be necessary to be part of the study if staff recommends it after their discussion with the Watershed District. He said we have a Conservation Commission that is working on developing their annual work plan, and this is something that commission should be deeply involved with. He thought the Conservation Commission should do an investigative historical study so they can be brought up to date with the landfill situation. They may be the best group to raise questions to feed into the Watershed District study. CITY COUNCIL MINUTES October 20, 2009 Page 7 Young thought having a dialogue with the Watershed District makes a lot of sense, and he also thought staff should work with the Conservation Commission on their work plan. Neal said staff is aware of the initiation of this study to be done by the Wenck and Stanley groups, and there will be an opportunity at some point in their study process for the Watershed District and the City Council to sit down and look at the report together and make some decisions. He said he will check with them to see what aspect the landfill is playing in their report. He said he would envision the Conservation Commission could handle the landfill issues in the same way the Flying Cloud Advisory Commission handles airport issues. 2. Intersection at Hames and Valley View—Council Member Case Case said he was called by a School Board member who was concerned about the intersection at Hames and Valley View. There was a pedestrian injury recently and several car accidents have occurred at that intersection. They discussed what role the City and the School District could play in easing the situation at the intersection. He suggested that City staff get together with School District staff to see if there is a solution or a way to help ease that situation. Neal said staff could do that. B. REPORTS OF CITY MANAGER 1. Meeting Scheduling Policy Neal said the proposed meeting scheduling policy is not quite ready tonight and needs some more definition, so he suggested it be referred back to the Human Rights & Diversity Commission for further discussion at their next meeting. C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR 1. Comprehensive Guide Plan Update (Resolution No. 2009-67) Jeremiah said the Council is being asked to adopt a resolution putting the Comprehensive Guide Plan update into effect. She said this document is meant to guide growth and sustainability in the City through the year 2030. She noted the update was a substantial interdepartmental staff effort led by our Planning Division and coordinated by Mike Franzen. MOTION: Nelson moved, seconded by Aho, to adopt Resolution No. 2009- 67 to put the 2008 Comprehensive Plan Update into effect. Motion carried 5-0. 2. 2010/2011 Human Services Review Committee Social Service Provider Funding Recommendations CITY COUNCIL MINUTES October 20, 2009 Page 8 Young said he understood why there is an interest in having a decision on this before the budget discussion,but he also saw value in doing the budget as a whole. He suggested that this just be wrapped into the next budget discussion and asked when that will be held. Neal said the budget discussions will start on November 17 and a decision could be made on December 1. Case said he wanted to discuss from a historical perspective why we have made these recommendations before the full budget is approved. Neal said some of the organizations that seek these funds run on small budgets and our contract is a major piece of their budget. Many of them have financial cycles that begin January 1, and they have a level of anxiety that they might not find out what their status on funding is until December 15. He said this is more of a courtesy practice than anything else, and a decision that the Council could reserve for a later date. Duckstad said he agreed with the suggestion that we don't act on it tonight because it is already part of our proposed budget. He thought we should consider the whole budget as one package, and we have a Budget Advisory Commission (BAC) that is supposed to review any budgets sent to the Council and who have a duty to make a recommendation to us. He didn't think we should act on it now because we should not take any budget contingencies or proposals off the table. We have all kinds of things that are essential government services that are being looked at, and he didn't think these things fall into the area of essential services. Aho said he understood the desire of the non-profits to get the budget out as soon as possible,but in this economy it is important for us to look at our budget in totality. He was in favor of Mayor Young's proposal to view it later, and he thought December 1 gives them enough time to plan. It is the same thing as we put on ourselves as a city. Case said the budget is the single most important document and process that we take part in over the years we are in office. He said what is frustrating to him is that people do become known for their actions towards others and towards the least of us. If these groups weren't doing the work they do and government had to step in, it would cost us thousands of dollars more to provide these services. These are very low funded programs that supply tremendous service to the disadvantaged. He noted he was somewhat embarrassed to be up here tonight with a group that would not vote and consider these things to be off the table when we are putting such small amounts into services that go so far to meet such critical needs. Young said he did not contemplate a discussion on the merits of these services. He was only suggesting that we move this item to our budget discussion. He noted everyone involved in the budget process is on a calendar basis. CITY COUNCIL MINUTES October 20, 2009 Page 9 Nelson said it seems in the past three years that we have passed an equivalent motion on a similar time frame. We are talking about changing a planning process for these groups which we can do, but it is a change. She also assumed the BAC has seen this already. We have a lot on our plate in December and we hope to keep the budget very level,but when the economic times are difficult these are the groups we expect to provide services for an ever-widening group of people. It is a difficult time to raise money for most groups, and we do ask these groups to partner in meeting needs. She would rather deal with this tonight since they can't be a part of the overall budget planning process like our City departments can. Young said it seemed to him we were cutting up part of a unified process by considering this tonight. Duckstad said he agreed with the original suggestion to put this off and consider it as part of the whole budget. That would give the BAC an opportunity to make a recommendation to us. Young said to him this was not an issue that needed to go to the BAC,but he wanted to defer our discussion of it. He said it was unclear to him why we got into the practice of making this funding recommendation before we vote on the budget. Jeremiah noted representatives of the agencies and the Manager of Housing and Community Services are present to answer any outstanding questions. MOTION: Duckstad moved, seconded by Aho, to continue the 2010/2011 Human Services Review Committee Social Service Provider funding recommendations to the November 17 meeting. Neal noted the first opportunity to make a decision on the budget would be December 1, and the last opportunity to approve it would be December 15. Rosow recommended that it be continued for discussion in conjunction with the entire budget. Duckstad withdrew the motion with the approval of Aho. MOTION: Duckstad moved, seconded by Aho, to continue the discussion in conjunction with the entire budget. Motion carried 3-2-0, with Case and Nelson opposed. D. REPORT OF PARKS AND RECREATION DIRECTOR 1. Hennepin Youth Sports Grant Proposals—Miller Park (Resolution No. 2009-70) 2. Hennepin Youth Sports Grant Proposal—Round Lake Skate Park (Resolution No. 2009-71) CITY COUNCIL MINUTES October 20, 2009 Page 10 Lotthammer said the legislation to fund the new Twins stadium allows Hennepin County to grant assistance to communities to develop youth sports or recreation facilities. Local governments can apply for these funds, but the County requires a resolution authorizing staff to execute the application materials. Lotthammer said the first grant proposal is to install covered dugouts, replace scoreboards and add some other aesthetics to the fields at Miller Park. The Baseball and Softball Associations have come together to match the request to the County so that no City funds would be used. City staff would execute the application as well as the contracts if it were to be successful. Lotthammer said the second proposal is to replace the Round Lake Skate Park. He said this was programmed in for the 2010 CIP budget with additional funds from the Park Fund,but we would request another $100,000 from the County in order to do a complete renovation of the skate park. Nelson said she was a little concerned that the last time we got an offer from an organization the City ended up putting in more money than we planned to because the costs had gone up. She asked how we can be assured all of it would be covered by the grants and the organizations so the City wouldn't have to put in money. Lotthammer said that has not been the case in recent history. We would accept the donation from the associations so we would have money in hand prior to encumbering any funds. The Softball and Baseball Association offers are well within their current fund balances so they aren't relying on raising funds to make the donations. Nelson said then this really is a situation where we will help them get the grant money and there won't be a potential for the City having to put in money. Lotthammer said he was confident no City funds would be expended for the Miller Park proposal. Duckstad asked Mr. Lotthammer to explain why there would be money spent out of the Park Fund for the Round Lake proposal. Lotthammer said we had this project in the CIP in 2010 for partial repairs to keep it safe. This combination would be $35,000 from the CIP fund and $65,000 from the Park Fund and would leverage the $100,000 as a match from the County. Duckstad asked if this could be put off in light of the current economy. Lotthammer said repairs to it and some renovation work cannot be put off. This would be a very good time to complete it and have it in service for the next 15-20 years. Young thought we are very close to having to close down the skate park if we don't do something to it. Lotthammer said times have changed in the skating world, and the types of material used now will last far longer than the previous materials. CITY COUNCIL MINUTES October 20, 2009 Page 11 MOTION: Case moved, seconded by Aho, to adopt Resolution no. 2009- 70 authorizing staff to submit a grant request to the Hennepin Youth Sports Grant Program for Miller Park baseball and softball field improvements. Motion carried 5-0. MOTION: Aho moved, seconded by Nelson, to approve Resolution No. 2009-71 authorizing staff to submit a grant request to the Hennepin Youth Sports Grant Program for Round Lake Skate Park improvements. Motion carried 5-0. E. REPORT OF PUBLIC WORKS DIRECTOR F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY XV. OTHER BUSINESS XVI. ADJOURNMENT MOTION: Duckstad moved, seconded by Case, to adjourn the meeting. Motion carried 5-0. Mayor Young adjourned the meeting at 8:37 PM.