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City Council - 11/18/2014 APPROVED MINUTES EDEN PRAIRIE CITY COUNCIL MEETING TUESDAY, NOVEMBER 18, 2014 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Nancy Tyra-Lukens, Council Members Brad Aho, Sherry Butcher Wickstrom, Ron Case, and Kathy Nelson CITY STAFF: City Manager Rick Getschow, Public Works Director Robert Ellis, Community Development Director Janet Jeremiah, Parks and Recreation Director Jay Lotthammer, City Attorney Ric Rosow, and Council Recorder Jan Curielli I. CALL THE MEETING TO ORDER Mayor Tyra-Lukens called the meeting to order at 7:00 PM. II. PLEDGE OF ALLEGIANCE III. OPEN PODIUM INVITATION IV. PROCLAMATIONS/PRESENTATIONS A. ADOPT RESOLUTION 2014-106 ACCEPTING THE DONATIONS FOR HALLOWEEN ON THE MALL EVENT (Resolution 2014-106) Lotthammer said staff has been working with Eden Prairie Mall for several years to offer a safe family environment for "trick or treating." This past Halloween over 8,000 children attended "trick or treat" at the mall. Donations totaling $1650 were received from the Eden Prairie Crime Prevention Fund, the Optimists Club of Eden Prairie, and the Primrose School of Eden Prairie. Tyra-Lukens thanked the donors and noted donations are essential for many of the City-wide events. MOTION: Butcher Wickstrom moved, seconded by Aho, to adopt Resolution 2014- 106 accepting the donations in the amount of$1,650 from various donors for the Halloween on the Mall event. Motion carried 5-0. V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Getschow said there are three items on goldenrod paper to be added to the agenda: Items VIII.M, VIII.N,Item XIII.A. The first two items are added to the Consent Calendar, one to CITY COUNCIL MINUTES November 18, 2014 Page 2 approve a partnership agreement regarding the fiber infrastructure between Eden Prairie and Logis and the other to approve the first amendment to the Supervalu lease to add 3500 square feet to the original lease. The third item is the appointment of three citizens to the Board of Appeal and Equalization. MOTION: Nelson moved, seconded by Case, to approve the agenda as amended. Motion carried 5-0. VI. MINUTES A. COUNCIL WORKSHOP HELD TUESDAY, OCTOBER 21, 2014 MOTION: Aho moved, seconded by Butcher Wickstrom, to approve the minutes of the Council workshop held Tuesday, October 21, 2014, as published. Motion carried 5-0. B. CITY COUNCIL MEETING HELD TUESDAY, OCTOBER 21, 2014 MOTION: Case moved, seconded by Butcher Wickstrom, to approve the minutes of the City Council meeting held Tuesday, October 21, 2014, as published. Motion carried 5-0. C. SPECIAL COUNCIL MEETING HELD MONDAY, NOVEMBER 10, 2014 MOTION: Nelson moved, seconded by Butcher Wickstrom, to approve the minutes of the Special City Council meeting held Monday, November 10, 2014, as published. Motion carried 3-0-2, with Case and Tyra-Lukens abstaining. VII. REPORTS OF ADVISORY BOARDS & COMMISSIONS VIII. CONSENT CALENDAR A. CLERK'S LICENSE LIST B. SOUTHWEST TRANSIT BUS GARAGE ADDITION 2 by LSA Design Inc for Southwest Transit. Second Reading of Ordinance No. 23-2014-PUD-4-2014 for Planned Unit Development District Review with waivers on 10.1 acres; Zoning District Amendment within the I-2 Zoning District on 10.1 acres and Site Plan Review on 10.1 acres. Location: 14405 62nd Street West(Ordinance No. 23-2014-PUD-4-2014 for PUD District Review with waivers and Zoning District Amendment within the I-2 Zoning District; Resolution No. 2014-107 for Site Plan) C. ADOPT RESOLUTION NO. 2014-108 APPROVING THE FINAL PLAT OF RSOP TWENTY FOURTEEN (MARGARET A. CARGILL PHILANTHROPIES) CITY COUNCIL MINUTES November 18, 2014 Page 3 D. APPROVE PARTIAL ACQUISITION OF PARCEL 34 FOR SOUTHERN SEGMENT OF THE SHADY OAK ROAD IMPROVEMENTS E. APPROVE FENCE ENCROACHMENT AGREEMENT WITH ROWLAND SHADY OAK PROPERTIES, LLC F. AWARD CONTRACT TO MINNESOTA NATIVE LANDSCAPES FOR THE BRYANT LAKE DRIVE CULVERT REPAIR AND CREEK STABILIZATION PROJECT G. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH SRF FOR THE ILLICIT DISCHARGE DETECTION AND RESPONSE PLAN H. APPROVE AGREEMENT WITH BOLTON & MENK FOR UPDATING OF THE STORMWATER POLLUTION PREVENTION PLAN I. APPROVE CONTRACT WITH ULTIMATE SOFTWARE GROUP INC. FOR HRIS AND PAYROLL SYSTEM J. AWARD CONTRACT TO RJ MARCO CONSTRUCTION, INC. FOR CONSTRUCTION OF MAINTENANCE FACILITY OFFICES AND LOBBY REMODEL K. APPROVE PROCLAMATION DESIGNATING NOVEMBER 29 AS SMALL BUSINESS SATURDAY L. APPROVE CHANGE ORDER FOR BITUMINOUS ROADWAYS INC. FOR HOMEWARD HILLS PARKING LOT AND TRAIL RECONSTRUCTION PROJECT M. APPROVE THE FIRST AMENDMENT TO THE SUPERVALU LEASE N. APPROVE PARTNERSHIP AGREEMENT WITH INDEPENDENT SCHOOL DISTRICT NO. 270, THE CITY OF MINNETONKA AND LOGIS REGARDING THE FIBER INFRASTRUCTURE BETWEEN EDEN PRAIRIE AND LOGIS IN GOLDEN VALLEY MOTION: Butcher Wickstrom moved, seconded by Nelson, to approve Items A-N of the Consent Calendar. Motion carried 5-0. Tyra-Lukens noted Item VIII.K. to approve a proclamation designating November 29 as Small Business Saturday in order to help promote local businesses. IX. PUBLIC HEARINGS/MEETINGS CITY COUNCIL MINUTES November 18, 2014 Page 4 A. GREEN ACRES PARKING LOT by Steven Schussler Green Acres LLC. Request for Planned Unit Development Concept Review Amendment on 2.68 acres; Planned Unit Development District Review with waivers on 2.68 acres; Zoning District Amendment within the Rural Zoning District on 2.68 acres; Site Plan Review Amendment on 2.68 acres and Conditional Use Permit Amendment on 2.68 acres. Location: 14150 Pioneer Trail (Resolution No. 2014-109 for PUD Concept Review; Ordinance No. 22-2014-PUD-3-2014 for PUD District Review with waivers and Zoning District Amendment within the Rural Zoning District, Resolution No. 2014-110 for Site Plan Review Amendment, and Resolution No. 2014-111 for Conditional Use Permit Amendment.) Getschow said this is a request for expansion of the parking area at the Green Acres Event Center. The current site provides 14 on-site parking stalls. The applicant utilizes off-site parking facilities and shuttle services to transport event attendees. The expansion of the parking area provides an additional 55 parking spaces and requires the relocation of an existing pond on site. The applicant is working with other agencies including Hennepin County and Metropolitan Airports Commission, and the Riley Purgatory Bluff Creek Watershed District to address all necessary issues related to the relocation of the pond. Waivers are requested to allow a gravel-surfaced parking lot, a parking setback of seven feet from the highway easement line, and no planting island in the parking area. The Planning Commission voted 6-0 to recommend approval at the October 13, 2014 meeting. Bob Erickson, Senior Executive for Welsh Companies, reviewed the proposal. He said a number of different alternatives were explored before they determined the best approach would be to fill in the stormwater management pond closest to Pioneer Trail. He said the 55 additional parking stalls are critically important to success of the event center. He noted Mr. Ellis was very effective in his role as point person with the various agencies involved in the project. Nelson asked if off-site parking will continue to be needed for large events. Mr. Erickson said they will continue to use the off-site parking that was originally approved. Tyra-Lukens said she has no problem with the variances requested. The gravel surface is in keeping with the historically significant barn. She asked if it would be possible to get screening in front of the parking along Pioneer Trail,possibly lilac bushes that would screen the parking but would not screen the barn. Mr. Erickson said they have agreed to work with staff on the City's approved landscaping plan. There were no comments from the audience. MOTION: Case moved, seconded by Nelson, to close the Public Hearing; to adopt Resolution No. 2014-109 for Planned Unit Development Concept Review on 2.68 acres; to approve first and second readings of Ordinance No. 22-2014-PUD-3-2014 for Planned Unit Development District Review with waivers, and Zoning District CITY COUNCIL MINUTES November 18, 2014 Page 5 Amendment in the Rural Zoning District on 2.68 acres; to adopt Resolution No. 2014- 110 for Site Plan Review Amendment; and to adopt Resolution No. 2014-111 for Conditional Use Permit Amendment. Motion carried 5-0. Steven Schlusser, the proponent, thanked the Council Members for approving the project and noted the City of Eden Prairie is one of the most "can-do" cities with whom he has ever worked. X. PAYMENT OF CLAIMS MOTION: Butcher Wickstrom moved, seconded by Case, to approve the payment of claims as submitted. Motion was approved on a roll call vote, with Aho, Butcher Wickstrom, Case, Nelson, and Tyra-Lukens voting "aye." XI. ORDINANCES AND RESOLUTIONS A. SPECIAL ASSESSMENT— 11175 BLUESTEM LANE (Resolution No. 2014-112) Getschow said this item has been carried over from the list of miscellaneous special assessments approved at the last Council meeting. The public hearing was opened and closed at the last meeting, so the action tonight would be to act on the special assessment for 11175 Bluestem Lane. He said at the last meeting the Council asked the City Attorney and him to work with the property owner on a resolution for the assessment. There was quite a bit of discussion at the last meeting about several reports and analysis done on the property so there is a lot of background information in the Council packets. Rosow said following the last meeting staff engaged in discussions with the property owner. They also listened to Council Members' concerns about the special assessment and the questions asked at the meeting. He reviewed the history and process used to determine what could be done to stabilize the slope on the property. In their report of March 2012, Braun Engineering identified three key items that contributed to the slope conditions: the geology of the site; the presence of groundwater; and the topography and site conditions with a natural slope gradient of 2:1. The report also included the statement: "Scouring of the slope from the creek could also have contributed to slope instability by undercutting and removing support from soils higher up the slope." Based on that statement, the property owners allege that the liability of the slope failure should be borne by the City. Rosow said in 2013 the conditions were worse and staff retained Wenck Associates to report on the conditions. Their report was similar to the Braun report and identified six points that caused the slope instability. Their sixth point stated they found no evidence of slope movement at the creek; therefore they did not believe scour or erosion contributed to the movement. The City went through the process for the Council to declare this a hazard and order that it be repaired. The property owner did not object to the process. Wenck Engineering and Sunram Construction were retained to design, stabilize and restore the slope. CITY COUNCIL MINUTES November 18, 2014 Page 6 Rosow said at the last meeting the property owners expressed surprise at the amount the costs had grown over the original estimate. He said on July 3, 2013 an email was sent to their attorney advising them of Sunram Construction's estimate that additional material was needed and the costs would increase by $90-100,000. The total cost of the project was $225,449.12. In discussions with the property owners' attorney after the last Council meeting, they offered to pay $95,000. City staff responded that the City would be willing to delete the administrative fee and interest costs from the assessment,bringing it down to about$197,000. Ellis said in 2007 the City hired Wenck Associates to prepare stream bank erosion surveys for portions of Purgatory Creek. The GIS records identified no signs of erosion near the vicinity of the Gallaghers property. Rosow said the staff recommendation is to adopt the special assessment of$225,449.12 payable at 4.85% interest over 15 years. The property owner has filed a written objection and an appeal may be done by filing with the City within 30 days of adoption by the City. The appeal would be filed ten days following that with the District Court. If an appeal is filed, we will be engaged in litigation over this. He believed the information presented will be supportive of the total amount of the assessment. Aho said the reports mentioned there had been a removal of trees by the property owner and asked if that was a purposeful removal. Rosow said it was not a removal by the City. The trees were beginning to tilt and the Gallaghers removed them. It was intended to prevent further damage. Aho asked about the distance from the creek to the owner's property line. Ellis replied it is about 30-40 feet from the creek bank to the City property line. Aho asked how much of the cost to do the restoration was done on the City property versus the owner's property. Ellis guessed roughly one-third of the rocks used to re- stabilize the slope were placed near the creek on the City's property. Tyra-Lukens asked if the City would have put in the rock in that area if not for the erosion up above the creek. Ellis replied there were no plans to install rock in that area because we saw no erosion at the creek. The rock was needed to build a base to re-stabilize the slope. Case expressed sadness there isn't a way to come to middle ground. The sides are so far apart that it will go to the court at that level. He believed Mr. Rosow is recommending we go to court and let them decide the appropriate number. We benefited to some extent, so he was comfortable with taking off the administrative fee and interest portions; however, he did not want to shorten the hand of our City Attorney who has to represent us. He thought the fair number isn't possible right now because the sides are so far apart. Nelson said a new piece of information she heard tonight was that the full amount was known in the summer of 2013, so this didn't just come out of the blue in the last month or so. Even though she wasn't comfortable with the situation, she thought we need to let the courts take care of it. CITY COUNCIL MINUTES November 18, 2014 Page 7 Aho said he would always try to avoid litigation because it costs both sides. He had hoped we could come to a resolution without litigation. It is difficult for us as a body to try to come up with an equitable solution in a public forum. Butcher Wickstrom was concerned about what the Council could really do with this potential legal situation. She was concerned about setting precedence so we must be careful in giving the opportunity to work something out. MOTION: Butcher Wickstrom moved, seconded by Case, to adopt Resolution No. 2014- 112 approving a special assessment against 11157 Bluestem Lane. The property owner and his attorney asked to speak to the Council. Rosow said this is not an opportunity to formally reopen the public hearing,but the Council could agree to hear comments. Council Members agreed to hear their comments. David Zoll, attorney representing Pat and Wendy Gallagher, said they were concerned that proceeding with litigation was not the way to reach a fair and equitable resolution. He said the Gallaghers agreed to the City coming onto their property to perform the work; however, after the work was underway they received an estimate of an extra$90,000 for additional rock for the re-stabilization. They did not know the total project cost until they received the notice of the special assessment. He said they made an initial settlement offer to open discussions. After their offer, the City offered to recommend an assessment of $197,000. The Gallaghers responded to that with an offer of$95,000 over 20 years,but did not receive a response to that offer. They offered $95,000, or about half the project cost, because a significant portion of the work was done on City property and benefits the City and neighboring properties. He said their offer of$95,000 demonstrates they are here in good faith and asked the City to give them additional time to talk to the engineers about the causation of the erosion. Rosow said Mr. Zoll described the sequencing of the negotiations correctly. The city's offer was to reduce the assessment, to reduce the interest from 4.85% to 2.85%, and to extend the term of the assessment to 20 years. He said it is not true that we did not respond to their offer of$95,000. Mr. Zoll was told the offer was not acceptable. The City declined to call in the engineers and have a conversation because we were getting into a litigation situation. Case said the Council does not do special assessments by splitting the difference. We have occasionally done things like reduce the interest or extend the term in order to soften the burden . We have never said we would split the difference so that the people of Eden Prairie would take half. We came through with our best offer and were generous in the ways we could lower the cost. He was pleased to hear there are alternative measures available and was optimistic the final number will be more amenable to the Gallaghers. Tyra-Lukens asked if the vote would be conditioned to continue to be worked out. Rosow replied it can continue to be worked out. A notice of appeal is required to start the court CITY COUNCIL MINUTES November 18, 2014 Page 8 case. Hennepin County courts require alternative dispute resolution before going to trial. He firmly believed the reports tell us where the responsibility and cause lie in this case. Pat Gallagher, the property owner, said at the last meeting he suggested the Council Members walk down the path along the creek. Case replied the Council Members were advised against doing that. Mr. Gallagher said he recently put on waders and walked the creek to take pictures. There is significant erosion damage on every bend of the creek where the creek runs very fast. He said a few of his pictures show that 64 yards of the creek bank went down into the creek along with the trees. There is a lot of erosion at his neighbor's property three doors down and the City had to close the trail there. He noted that the senior engineer who did the Wenck report was the one who strongly suggested the trees be cut down. He said most of the companies that came out to look at how to stabilize the house said unless the City fixed the bottom of the slope it wouldn't matter how it was stabilized. He believed he and his wife have gone out of their way to collaborate with the City and they had to rely on what the City engineers told them. He asked that the City be fair with them because over the half the work that was done was on City property. He noted court costs for litigation would cost both parties $60-70,000 apiece. Aho commented that Council Members don't have the ability to separate the costs,but if we send it to the court system there is added cost to both sides. He asked if there was any advantage to giving another two-week period to make one more attempt at resolution. Rosow replied he didn't believe there is a reason to put off the vote tonight. There is a 30- day period before a notice of appeal must be filed. He noted he believed in mediation and has helped many cities and property owners resolve disputes. He believed it is very difficult for the City Council to negotiate at the table. The assessment should be adopted to get the process started; however, that does not stop us from further conversation. Case said he was somewhat comfortable with that. He asked if there is opportunity to have a voluntary mediation environment. He believed there is a sense that if the figure comes closer to the $197,000 we could save the cost of litigation for both sides. Rosow replied adoption of the resolution does not automatically send it into a legal situation. There is time for further conversations after the resolution is adopted, and he was committed to having those conversations. We would be able to enter into mediation on a voluntary basis even before a court ordered us to do that. However, it would be better from the City's point of view for the Council to have taken a position the mediator could understand by adopting the resolution. Mediation is a non-binding process. Any proposal coming out of mediation can be accepted or rejected by the Gallaghers and also by the City Council. Nelson said she would like to see mediation. Because this situation is setting precedent, she would want to be fair to prior and future residents that have had or will have assessments. VOTE ON THE MOTION: Motion carried 5-0. CITY COUNCIL MINUTES November 18, 2014 Page 9 XII. PETITIONS, REQUESTS AND COMMUNICATIONS XIII. APPOINTMENTS A. BOARD OF APPEAL & EQUALIZATION. Getschow said the Board of Appeal and Equalization meets two times a year to deal with property valuations and appeals of property valuations. The City Council has appointed members to that board since 1992. The board members are citizen volunteers who have active careers and extensive experience in the real estate market. The action tonight is to appoint three members of the Board for the period of March 1 through May 31, 2015, or until the Board completes its work. MOTION: Case moved, seconded by Nelson, to appoint to the Board of Appeal and Equalization Lyndon Moquist, Annette O'Connor, and Todd L. Walker for the period of March 1, 2015 through May 31, 2015, or until the Board of Appeal and Equalization completes its work. Motion carried 5-0. XIV. REPORTS A. REPORTS OF COUNCIL MEMBERS B. REPORT OF CITY MANAGER C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR D. REPORT OF PARKS AND RECREATION DIRECTOR E. REPORT OF PUBLIC WORKS DIRECTOR 1. Eden Prairie Pedestrian and Bicycle Plan Ellis distributed copies of the final draft of the Pedestrian and Bicycle Plan for the City of Eden Prairie. This was started in 2012 and 2013 as part of the City Council's goal-setting sessions for the next 10-15 years. Staff tried to find grant money to help fund the plan. The City was awarded a Hennepin County Community Transformation Grant through the Centers for Disease Control to develop the plan. Community Design Group has been assisting the city on this effort. A community engagement effort began in April 2014 to see what potential users would like to see. About forty people attended an open house and listening sessions were held with several focus groups. Staff created an internal working group and developed an interactive website. Over 160 people completed an online survey on the website and they obtained a lot of information from that. They analyzed existing conditions and determined a lot of key destinations were located CITY COUNCIL MINUTES November 18, 2014 Page 10 around the Major Center Area. All of the information gathered began to generate recommendations. There were four key recommendations: a map of the City to focus on reconstructing trails, sidewalks and roadways that provide connectivity; on-road bicycle lanes on certain roadways that provide connectivity; paving and improvements of certain key trails and roads; and busy intersection/crossing improvements. He reviewed the suggested approaches that could be used to implement the plan. He said the plan has been recommended for adoption by the Planning Commission and Parks, Recreation and Natural Resources Commission. He plans to come back to the Council on December 2 to ask for approval. He noted the plan opens up a lot of opportunities for grants. Nelson commented it looks like a good program. It fills in the holes in the existing system and also looks at safety. Referring to Page 121 of the plan, she said she would like to include something about large senior housing facilities and other very dense housing situations. Aho said it is a very comprehensive plan and he was very pleased at the product. It will go a long way to help plan for the future. Tyra-Lukens said the report is very thorough and she was happy with all the outreach to the community. She asked how the report will be used. Ellis said this is a document that will get a lot of use. It will be used any time there is a major development project or a grant opportunity. On December 2 staff will bring a request to approve a resolution of support for a "Safe Routes to School" grant. He said the ten-year capital improvement plan has funding and this plan would guide where those funds would be used. Butcher Wickstrom said this is a very important piece both for our present and for our future. It outlines what we need to be doing to be a healthy community. She would like to see something more proactive. Grants are great but it would be good to see if there are any other funding resources we could put towards the plan in a prioritized way. She suggested we might use the new green development to demonstrate healthy ways to assist our residents. Ellis said the plan has good connectivity now along Eden Prairie Road and there are recommendations for Scenic Heights Drive to have bike lanes installed. There are a lot of things within the green neighborhood that would tie into the complete streets program. Butcher Wickstrom asked if it is safe to cross Eden Prairie Road at that intersection. Ellis said there is a traffic signal with pedestrian push buttons but staff could look more at that intersection. F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF CITY COUNCIL MINUTES November 18, 2014 Page 11 H. REPORT OF CITY ATTORNEY 1. First Reading of Ordinance Amending City Code Section 5.35, Prohibitin! Sampling of Tobacco-Related Products Rosow said in February the City Council approved the first reading of an ordinance requiring a tobacco license for the retail sales of e cigarettes and of an ordinance prohibiting the use of cigarettes in all locations in which the Minnesota Clean Indoor Air Act and the Eden Prairie Smokefree Air Ordinance of 2002 prohibit the smoking of tobacco. The Council also adopted a one-year moratorium on hookah lounges, e cigarettes. and related lounges. Tonight the proposed ordinance would prohibit sampling of tobacco-related products in any establishment with a tobacco retail license and would add cigarettes to the definition of tobacco-related products. Case said he brought this issue forward in February and since then it has been looked at across the nation. He noted he had no problem going with the first of the four options outlined in the City Attorney's memo of November 18. MOTION: Case moved, seconded by Nelson, to approve first reading of an ordinance amending City Code Section 5.35, prohibiting the sampling of tobacco-related products. Motion carried 5-0. XV. OTHER BUSINESS XVI. ADJOURNMENT MOTION: Butcher Wickstrom moved, seconded by Case, to adjourn the meeting. Motion carried 5-0. Mayor Tyra-Lukens adjourned the meeting at 8:55 PM.