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081108 CC Reg MinCITY OF SHOREWOOD 5755 COUNTRY CLUB ROAD CITY COUNCIL REGULAR MEETING COUNCIL CHAMBERS MONDAY, AUGUST 11, 2008 7:00 P.M. MINUTES L CONVENE CITY COUNCIL REGULAR MEETING Mayor Lizee called the meeting to order at 7:02 P.M. A. Roll Call Present: Mayor Lizee; Councilmembers Bailey, Turgeon, Wellens and Woodruff; Attorney Keane; Acting Administrator/Director of Public Works Brown; Finance Director Burton; Planning Director Nielsen; and Engineer Landini Absent: None B. Review Agenda Woodruff moved, Turgeon seconded, approving the agenda as presented. Motion passed 5/0. 2. APPROVAL OF MINUTES A. City Council Work Session Minutes, July 28, 2008 Turgeon moved, Woodruff seconded, Approving the City Council Work Session Minutes of July 28, 2008, as presented. Motion passed 5/0. B. City Council Regular Meeting Minutes, July 28, 2008 Woodruff moved, Turgeon seconded, Approving the City Council Regular Meeting Minutes of July 28, 2008, as presented. Motion passed 5/0. C. City Council Work Session Minutes, August 4, 2008 Turgeon moved, Woodruff seconded, Approving the City Council Work Session Minutes of August 4, 2008, as Amended in Item 3, Page 7, third bullet from the bottom change "Animal Control - expenses will be reduced to zero." to "Animal Control -expenses will be reduced to zero due to this cost already being in the police budget.". Motion passed 5/0. 3. CONSENT AGENDA Mayor Lizee reviewed the items on the Consent Agenda. Turgeon moved, Wellens seconded, Approving the Motions Contained on the Consent Agenda and Adopting the Resolutions Therein. SHOREW®OI) CITY C®1JNCIi, REGULAR MEETING MINUTES August 11, 2008 Page 2 of 10 A. Approval of the Verified Claims List B. Approve Agency Review of the Final Draft Comprehensive Water Resource Management Plan C. Adopting the Water Supply Plan, formerly known as the Water Emergency and Conservation Plan D. Deer Management (This was moved to Item 9.F under General/New Business.) E. Authorizing Submittal of the Three Rivers Park District Regional Trail System 2008-2009 Winter Use Permit Motion passed 5/0. 4. MATTERS FROM THE FLOOR There were no matters from the floor presented this evening. 5. REPORTS AND PRESENTATIONS None. 6. PUBLIC HEARING None. 7. PARKS A. Authorize Expenditure of Funds for Badger Park Rink Light Wiring Engineer Landini stated the agenda packet contained the proposal from Electrical Installation & Maintenance Company to supply electrical wiring to future new light poles and to install new control components in the existing cabinets at Badger Park. He explained Staff had requested quotes from two firms that had done quality work for the City in the past; only one firm chose to quote the job. Landini explained the quote for the wiring and component installation is $6,500 and the cost for the lighting portion of the project (which was approved at the July 14, 2008, City Council meeting) is $38,492 bringing the total cost of the project to $44,992. The Park Capital Fund has an unencumbered balance of $247,508 to fund this portion of the project. Landini stated Staff recommends Council accept the proposal from Electrical Installation & Maintenance Company. Woodruff moved, Bailey seconded, accepting the proposal provided by Electrical Installation & Maintenance Company for the wiring of the new Badger Rink lighting for an amount not to exceed $6,500. SHOREWO®D CITY C®Ul\TCIL REGULAR MEET'Il®TG MIllTUT'ES August 11, 2008 Page 3 of 10 Councilmember Bailey questioned if Staff was comfortable with having received only one quote, and if it thought the quote was reasonable. Engineer Landini stated based on work previously done the quote seemed reasonable. He clarified the proposal contained a separate quote for different activities at Badger Park, Cathcart Park and Manor Park. Councilmember Woodruff suggested Staff request quotes from more firms in the future. In response to a question from Mayor Lizee, Engineer Landini explained there is a 6 - 8 week lead time for the light poles, and they were ordered about two weeks ago. He estimated the project would be completed by mid to late September. Motion passed 5/0. S. PLANNING Commissioner Hutchins reported on matters considered and actions taken at the August 5, 2008, Planning Commission meeting (as detailed in the minutes of that meeting). 9. GENERAL/NEW BUSINESS A. Accept Proposal for Owner's Representative for City Hall Building Project Acting Administrator Brown stated at its July 14, 2008, meeting the Council considered proposals from three firms for Owner's Representative services for the City Hall Renovation Project. During that meeting a question was raised regarding insurance coverage specified in the Request for Proposals (RFP) and in an official addendum to the RFP. Staff was asked to research what the insurance needs were. There was also a request to ask the firms who had not already done so to submit a fixed bid cost. Brown explained Staff had discussions with the League of Minnesota Cities and Collaborative Design Group representatives, and there were discussions among members of the staff regarding insurance requirements. Based on those discussions, the insurance requirements were reduced and each candidate firm was asked to submit a deduction in fee for the proposals originally submitted based on the reduced insurance requirements. The three firms handled the insurance requirements differently. CPMI did not reduce its $52,550 fee, Yanik Companies reduced its $70,000 fee by $2,000 and Constructive Ideas reduced its $59,550 fee by $15,050. Brown then explained Constructive Ideas had proposed an alternative to pricing in its original proposal; it's based on a lump sum billing basis (i.e., fixed bid) for the project. That fixed bid was $47,500 plus additional insurance costs and expenses. Based on the reduced insurance, it reduced its fixed bid amount to a flat monthly billing fee of $4,868.75 per month with anot-to-exceed amount of $38,950. During discussions Staff raised concerns with the concept of a flat fee, regardless of the time spent on the project. Staff thought it was more appropriate to pay for the services used at a fair rate. Brown stated Staff is recommending entering into an agreement with Constructive Ideas, Inc., to provide Owner's Representative services for an amount not to exceed $44,500. Brown explained his Staff report about the original RFPs received and original recommendation to use CPMI was based on a number of items. During the original RFP process William Wolters, President of Constructive Ideas, appeared to question everything in the RFP; the other firms had no where near the sx®R~wo®~ C1T~ C®~~rCIL R~~~rLAR M~ETZrr~ M1~uT~s August 11, 2008 Page 4 of 10 same number of questions. The responses from the other two firms indicated they knew what to expect, and they provided a clear response to the IZFP. Mr. Wolters' questioning was excessive and laborious. During the revision process, Staff had further discussions with Mr. Wolters and became more comfortable that it can work with Mr. Wolters style. Staff also conducted additional reference checks. Mayor Lizee questioned if Mr. Wolters was thorough or was he difficult to work with, to which Acting Administrator Brown responded both. Lizee stated her original concern with Constructive Ideas' proposal was it would provide an average of twelve hours of services per week on the project. She then stated it was important that the individuals who would work on the project would be able to effectively work with Staff, and not create undue stress on them. Councilmember Turgeon stated if Acting Administrator Brown is comfortable with Constructive Ideas personnel, she could support that recommendation. Turgeon moved, Woodruff seconded, authorizing the Mayor and Acting City Administrator to enter into an agreement with Constructive Ideas, Inc., to provide Owners Representative services for an amount not to exceed $44,500. Councilmember Woodruff stated he called Mr. Wolters about the original Constructive Ideas proposal to get clarification on the pricing in the proposal. He asked Acting Administrator Brown if Staff was comfortable with selecting Constructive Ideas to provide the services. He explained originally he was not comfortable with the firm or Mr. Wolters, but after numerous discussions with Mr. Wolters that has waned. Mayor Lizee asked Councilmember Woodruff if he had any past or present relationship with Mr. Wolters or his company. Woodruff stated he had not met Mr. Wolters prior to talking to him regarding his pricing questions and he had only spoken with him one time. He stated he checked the references provided in the Constructive Ideas proposal; he did not ask for additional references. The references provided sterling recommendations. He had no interest in or relationship with Mr. Wolters or his firm. He commented the owner of one of the other firms lives in the City, but that firm was not selected. Councilmember Wellens thanked Councilmember Woodruff for his efforts in getting a reduced bid. Motion passed 5/0. B. Approval of the Proposed 2009 Budget for the South Lake Minnetonka Police Department Acting Administrator Brown stated South Lake Minnetonka Police Chief Litsey provided another revision to the 2009 SLMPD Operating Budget Proposal for consideration by Council. The first budget proposal was considered at the July 28, 2008, Council meeting. The majority of the Council was unwilling to approve the original budget proposal which reflected an increase of 9.5 percent over the 2008 adopted budget. At its August 4, 2008, work session Council discussed two new proposals, one reflecting a 6.7 percent increase and the other a 6.1 percent over the 2008 budget. The majority of the Council was unwilling to approve either alternative. At the August 4"' work session three of the Councilmembers indicated they would consider a budget with an increase no greater than 6 percent. The budget proposal being considered this evening reflects a 6 percent increase over the 2008 budget. SHOREW®®D CITI' C®L1NCI1, 12EGULAR MEETING MINUTES August I1, 2008 Page 5 of 10 Director Burton explained the draft of the City's 2009 General Fund Budget included in the work session meeting packet programmed funding for the City's portion of the SLMPD budget (which included funding for items identified in the SLMPD Strategic Action Plan for 2009) at approximately $970,000. The amount currently contemplated by the council for the police budget would reduce the Shorewood General Fund by $31,550. Woodruff moved, Bailey seconded, approving the South Lake Minnetonka Police Department's 2009 Operating Budget Proposal dated August 8, 2008, which reflects a six percent increase over the adopted 2008 SLMPD Operating Budget. Councilmember Turgeon stated she had received a call from the Lakeshore Weekly News and two residents about SLMPD patrol officer coverage. There appears to be some misunderstanding that there is never more than one patrol officer on duty; she clarified that was not the case. She thanked the mayor of one of the member cities for respecting the fact that the City has to work through its own processes when considering the budget, and all individuals need to respect the perspective of others. In response to a question from Councilmember Wellens, Councilmember Turgeon stated she had been provided with the SLMPD salary information she had requested. There was a request for Staff to distribute that information to all Councilmembers. Motion passed 5/0 with Bailey, Turgeon, Wellens and Woodruff voting in favor, and with Lizee voting in favor with the following reservations: Lizee stated although it may be possible to continue current operations with an operating budget reflecting a six percent increase over the adopted 2008 budget, she did not think it was a responsible budget. The incremental difference between the budget just approved and the original budget proposal would have resulted in an approximate additional monthly cost of 95 cents for each household in 2009; the original budget included the costs for hiring an additional patrol officer mid-year 2009 and for additional technology funding. C. Draft RFP for General Legal Counsel Acting Administrator Brown stated per Council's direction he prepared a draft Request for Proposals (RFP) for professional general legal counsel services; the draft RFP was included in the meeting packet. He stated any changes requested this evening will be incorporated into the RFP and the RFP in its final form will be provided to Council for consideration at its August 25, 2008, meeting. Councilmember Woodruff requested the following responsibility be added under Item VI, Legai Services Requirements: Legal services associated with personnel matters and union contracts. He has no other changes to recommend. Councilmember Wellens questioned if it would be difficult to bid on ltem VLA -Attend City Council meetings and other City Commission or Committee meetings as requested by the City Council or City Administrator. He thought it was open ended. Acting Administrator Brown stated he would change the statement to say: Attend the regularly scheduled City Council meetings and meet as requested by the City Council or City Administrator. This wording is typical in RFPs. He explained these services are billed at an hourly rate. He stated Staff was conferring with the League of Minnesota Cities to determine if it was prudent to have legal counsel present at just one meeting. SHORE~V®OI) C:IT~' C®IJi~TCI~, R~+ GiJLA12 ~+ E`I'Il\TG MIlsTUTES August 11, 2008 Page 6 of 10 Councilmember Bailey stated Item S.J.2 refers to an alternative fee arrangement. He questioned if Staff had any specific arrangement in mind. Acting Administrator Brown stated it was intended to have responders think creatively. Acting Administrator Brown stated at its August 25, 2008, meeting Council will be provided with feedback from the City's risk specialist with the League of Minnesota Cities Insurance Trust on meeting attendance. At that meeting the publication dates for the RFP can be determined. Mayor Lizee suggested before publication dates were deternined, it was important to remember the new City Administrator will attend his first City Council regular meeting as a member of the City Staff on August 25"'. It's important to seek his perspective on sending out RFPs and possibly changing legal counsel and audit service providers when he is new to his position. Councilmember Turgeon stated the new City Administrator starts on August 18"' and he has been provided a copy of the draft RFP; therefore, he should be able to provide input at the August 25`'' meeting, Councilmember Woodruff stated Council can decide whether or not it wants to continue with the RFP process at its August 25`x' meeting, D. Draft RFP for Professional Auditing Services Director Burton stated per Council's direction she has prepared a draft Request for Proposals (RFP) for professional audit services; the draft RFP was included in this evening's meeting packet. She stated any changes requested this evening will be incorporated into the RFP and the RFP in its final form will be provided to Council for consideration at its August 25, 2008, meeting. She reviewed a few highlights of the draft RFP. - Request for quotes for athree-year contract, with an option to renew for an additional three-year period. - Screening of the proposals by athree-member Audit Selection Committee comprised of the City Administrator, the City Finance Director/Treasurer, and one Councilmember, The Audit Selection Committee would make a recommendation to the Council. - The RFP would be posted on the .League of Minnesota Cities' website in addition to soliciting proposals from selected firms. Councilmember Turgeon questioned the purpose of the following statement in the RFP: "To ensure a fair review and selection process, firms submitting proposals are specifically requested not to make other contacts to the City staff or a council member regarding these proposals." Director Burton explained the City wants firms to submit information requests in writing. There have been times when a firm may try and use that opportunity as a sales contact. Any responses would be sent to all proposers. In response to another question regarding proposers having to submit five copies of their proposals, Burton explained staff will make additional copies for Councilmembers. In response to a question from Councilmember Wellens, Burton explained athree-year contract would likely result in a little better price for the City because there is a continuity of service. During the first year of providing services for a company auditors spend a great deal of extra time becoming familiar with the City and its financials. Wellens stated his concern was he did not want to commit future councils to SIIOREW®OD CITY C®TJllTCII. IZEGTJLAI2 MEETIli~G MINU'T'ES August 11, 2008 Page 7 of 10 what this Council decides, Burton stated the RFP requested each of the three years be bid separately. Councilmember Woodruff stated this Council could not commit future Councils. The Council representative to the Audit Selection Committee will be selected at the August 25"' Council meeting. E. Appeal Sanitary Sewer Connection Appellant: Janet Sue Molin Location: 4405 Enchanted Point Engineer Landini stated at its June 9, 2008, meeting, Council heard from Janet Sue Molin, who owns the property at 4405 Enchanted Point, regarding her appeal to the Notice to Connect to Sanitary Sewer she had been sent (a provision of Shorewood's municipal code section 904). At that meeting Council decided to continue the appeal for 60 days. Landini explained in her appeal letter and during the discussion Ms. Mo1in referenced Section 904.06 Subd. 3.a of the City Code which addresses connecting to the public sewer instead of making repairs to the private system. He explained Minnesota Rule § 6120.3400 Subd. 3 states: "that any premises used for human occupancy must be provided with an. adequate method of sewage treatment." The first option listed in that Rule states publicly owned sewer systems must be used where available. The intention of the City Code and the Minnesota Rule is to protect the local private drinking wells and Lake Minnetonka. The property located at 4405 Enchanted Point is a lake lot that is adjacent to private drinking wells, and it abuts publicly owned sanitary sewer. The service length to the sanitary sewer would be approximately 175 feet. Ms. Molin read a statement she had prepared and distributed to Council (a copy of the statement is on file). The highlights of the statement are as follows. She stated she had come before Council on June 9, 2008, and again on June 23, 2008, requesting an appeal. During those discussions she referenced Section 904.06 Subd. 3.a of the City Code which, from her vantage point, permits continued use of private sewage disposal systems in existence prior to the construction of sanitary sewer. At its June 23, 2008, meeting Council approved an ordinance amending Chapter 904 of the City Code; the amendment references Minnesota Rule § 6120.3400 Subd.3. Engineer Landini's memo dated August 7, 2008, recommends denial of her appeal based on Minnesota Rule § 6120.3400 Subd.3. The Notice to Connect she received references City Code Section 904.05 as the basis for connection; it did not reference Section 904.06 Subd. 3.a of the Code. The City changed Section 904.06 Subd. 3. of the Code in response to her appeal. From her vantage point the City selectively, and incorrectly, incorporated reference to Minnesota Rule § 6120.3400 Subd. 3 into the Code. The Department of Natural Resources (DNR) intended Minnesota Rule Chapter 6120 as a guideline which cities may adopt for the control of proposed development in Shoreland districts. Minnesota Rules must be adopted by local government before they can be enforced by local government. Ms. Mo1in requested Council uphold her grandfathered right under the law to continue the use of the existing private sewage disposal system on her property located at 4405 Enchanted Point by granting her appeal and rescinding her Notice to Connect to Sanitary Sewer. Mayor Lizee asked Attorney Keane to comment on this item. Attorney Keane stated he understood Ms. Molin to suggest the City must adopt Minnesota Rules in order to enforce them. Ms. Molin stated it was her understanding Minnesota Rules were recommendations to SHOREWOOI) CITY C®UNCIL REGULAR MEETING MINUTES August 11, 2008 Page 8 of 10 cities and then cities incorporate the rules into their codes. Keane explained Minnesota Rules, in almost all instances, are a furtherance of State Statute. The State Statute directs an agency to do something, and the agency is obligated to create the details, Minnesota Rules, for carrying out the legislative enactment. Minnesota Rules are completely enforceable. The City incorporated Minnesota Rule § 6120.3400 into the City Code to clarify there was an overlapping State Law requirement; the provision serves as a benchmark for the City standard and it establishes the DNR requirement as its requirement. Councilmember Wellens asked Ms. Mo1in how she knew what the DNR's intention was. Ms. Molin explained her husband had done a significant amount of research about this topic in the last few days, and she reached her conclusion based on his research. In response to a comment from Councilmember Bailey, Attorney Keane concurred the City has no authority to grandfather an exception for shoreland property. Mr. Molin highlighted his findings from a cursory review of Minnesota Rules Chapter 6120. Minnesota Rules Chapter 6120 Section 6120.2500 - 6120.3900 DNR Shoreland Management went into effect July 3, 1989. Chapter 6120 requires local governments adopt, administer and enforce their own local shoreland management ordinances under the DNR's review and approval. The DNR intended Chapter 6120 to guide local governments in the adoption of local ordinances consistent with statewide Shoreland use standards. The DNR did not intend Chapter 6120 to be used as afree-standing zoning code. Mr. Molin read the responsibilities portion of the scope of Chapter 6120 Section 6120.2800. These minimum standards and criteria apply to those shorelands of public waters of the state which are subject to local government land use controls. They are intended to be incorporated into local government shoreland management controls. Each local government is responsible for administration and enforcement of its shoreland management controls adopted in compliance with these standards and criteria. Nothing in these standards and criteria shall be construed as prohibiting or discouraging a local government from adopting and enforcing controls that are more restrictive. The land use districts section of Chapter 6120 Section 6120.3100 states "The development of shorelands of public waters must be controlled by means of land use zoning districts ..." Mr. Molin stated from his vantage point it is clear the DNR's intent was for the development of Shoreland, not existing uses, which is what the Molins have. If someone was going to subdivide a property they would be required to hook up to public sanitary sewer. He did not think it was appropriate to try and enforce part of a Minnesota Rule on an existing situation. Attorney Keane stated he did not hear Mr. Molin say anything that is contradictory to what the City is doing. Mr. Molin stated the City had to adopt the ordinances under the DNR's review and approval. He noted the City has a shoreland ordinance which requires a property owner to hook up to public sanitary sewer system if available. He noted the use of the 4405 Enchanted Point property has not changed in 70 years. Attorney Keane stated the City has the prerogative to be more restrictive, but that is not the situation. Mr. Molin stated when the City sent the Notice to Connect to Ms. Molin the City did not have the current Minnesota Rule § 6120.3400 Subd. 3 restriction. Keane stated the Zoning Administrator drew a different conclusion. Mr. Molin stated the request for appeal was continued to provide the City time to review its Code, and during that time the City changed its code. SHOREWO®D CITE' C®LTNCIL, REGIJI~AR MEETING MINUTES August 11, 2008 Page 9 of 10 Councilmember Woodruff stated the recent amendment to that section of the City Code was to clarify its policy; the City did not change its policy. Attorney Keane concurred. Director Nielsen stated the City Code under Shoreland Regulations Sewage and Waste Disposal states "any premises used for human occupancy shall be provided with public sanitary sewer disposal". Mr. Molin stated that was in Section 1201.26S Subd. 6 which clearly calls out development regulations. Nielsen stated the subject property was an existing development. Mr. Molin stated they were not developing the property. He then stated the City could not use the argument of Minnesota Rule § 6120.3400 as part of the argument because the Notice to Connect did not reference it. Councilmember Woodruff stated if one assumed the Molin's agreement was correct with regard to the City Code in effect at the time of the Notice to Remove and with regard to the sections of the Code cited, he questioned if it was it appropriate for the City to re-issue the Notice to Connect citing the correct sections in the Code. Attorney Keane stated the City adequately enforced the City Code in June 2008. He explained there were references in the Code that were not contradictory; but, depending on ones perspective they could have been interpreted in an ambiguous fashion. The terms did not conflict with one another. He stated if there had been any ambiguity in the Code, the amendment to the Code clarified that ambiguity, and the intent of the Council to require Shoreland properties to hook up to public sanitary sewer disposal systems where available. The Council did not have to reissue the Notice to Connect to Sanitary Sewer to have effect. The Council has the authority to interpret appeals of the City's Ordinances, and conclude proper application of the Ordinances. Woodruff moved, Bailey seconded denying the appeal for exception on Notice to Connect to Sanitary Sewer for Janet Sue Moiin who owns the property at 4405 Enchanted Point. Councilmember Wellens stated the Molins had made excellent arguments. Councilmember Bailey re-emphasized the City has no discretion to grandfather an exception for the Shoreland property. The Council relies on the City Attorney to interpret State Statutes. He understands the State Statute to say it is irrelevant what his view of the City Code is. Mr. Molin stated Council had taken away their grandfathered right by changing the code. Bailey clarified the amendment to the Code was to remove any potential ambiguity in the Code. Motion passed 5/0. F. Deer Management This was removed from the consent agenda at Councilmember Woodruff's request. Councilmember Woodruff stated the reason he had this removed from the consent agenda was the end date specified in the Contract for Goods/Services was December 31, 2007, and it should be December 31, 2008. He wanted to ensure the Contract signed would have the correct date. Woodruff moved, Turgeon seconded, approving the agreement with Metro Bowhunters Resource Base (MBRB) for deer management services. Motion passed 5/0. SHOREW®®D CITY C®UNCII, REGITI~AR MEETING MINUTES August 11, 2008 Page 10 of 10 10. ENGINEERING/PUBLIC WORKS None. 11. STAFF AND COUNCIL REPORTS A. Administrator & Staff Acting Administrator Brown stated the 2008 sealcoating effort had been completed, and the mill and overlay effort should be completed August 12`x' The bituminous materials have been placed on Apple Road, and the cleanup and backfilling of shoulder areas will occur over the next week. B. Mayor & City Council Councilmember Bailey questioned the status of the SE Water Tower. Acting Administrator Brown explained the new controls for the Amesbury Well must be installed before work can begin on the SE Water Tower well. Staff was seeking quotes for that. There had been a previous analysis of the SE Area Well which indicated it was adequate to supply the instantaneous demand on the system if it had to in emergency situations. He questioned the Endings of that analysis. He explained in July a data logger was placed in the Tower to further analyze the Tower's capacity. He stated at its August 25, 2008, meeting Council will be asked to approve advertisement for bids for work on the Tower. Acting Administrator Brown stated the SE Water Tower refurbishing project, including painting of the Tower, should be completed this year. 12. ADJOURN Bailey moved, Turgeon seconded, Adjourning the City Council Regular Meeting Session Meeting of August 11, 2008, at 8:04 P.M. Motion passed 5/0. RESPECTFULLY SUBMITTED, Christine Freeman, Recorder -° ®~' ~ t P. ~. ATTEST: Christine Lizee, Mayor ,.. ~° _ ~--7 Brian Heck,. City Administrator/Clerk