Loading...
051109 CC Reg MinCITY OF SHOREWOOD CITY COUNCIL REGULAR MEETING MONDAY, MAY 11, 2009 MINUTES 1. CONVENE CITY COUNCIL REGULAR MEETING 5755 COUNTRY CLUB ROAD COUNCIL CHAMBERS 7:00 P.M. Mayor Lizee called the meeting to order at 7:04 P.M. A. Roll Call Present. Mayor Lizee; Councilmembers Bailey, Turgeon, Woodruff and Zerby; Attorney Tietjen; City Administrator Heck; Planning Director Nielsen; Director of Public Works Brown; and Engineer Landini Absent: None B. Review Agenda Turgeon moved, Zerby seconded, approving the agenda amended. Motion passed 510. 2. APPROVAL OF MINUTES A. City Council Regular Meeting Minutes, April 27, 2009 Turgeon moved, Woodruff seconded, Approving the City Council Regular Meeting Minutes of April 27, 2009, as presented. Motion passed 5/0. 3. CONSENT AGENDA Mayor Lizee reviewed the items on the Consent Agenda. Turgeon moved, Zerby seconded, Approving the Motions Contained on the Consent Agenda and Adopting the Resolutions Therein. A. Approval of the Verified Claims List B. Adopting RESOLUTION NO. 09-0199 "A Resolution Approving Intoxicating Liquor License On-Sale, Intoxicating Liquor and Special Sunday Sales, for the Minnetonka Country Club."; RESOLUTION NO. 09-0209 "A Resolution Approving a 3.2 Percent `Off-Sale' Malt Liquor License, for Shorewood 2001 LLC, dba Cub Foods."; RESOLUTION NO. 09-0219 "A Resolution Approving an Off-Sale Intoxicating Liquor License, for The Cellars Wines & Spirits of Shorewood, Inc."; RESOLUTION NO. 09-0229 "A Resolution Approving Intoxicating Liquor License On-Sale, Intoxicating Liquor and Special Sunday Sales, for American Legion Post #259."; and, RESOLUTION NO. 09-023, "A Resolution Approving an Off-Sale Intoxicating Liquor License, for Park Square Subway, Inc., dba Shorewood Liquor." CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 11, 2009 Page 2 of 18 C. Retirement Event for Public Works Retiree Dennis Johnson D. Concession Services Agreement for 2009 E. Adopting RESOLUTION NO. 09-024 "A Resolution Approving Specifications and Estimate and Authorizing Advertisements for Bids for 2009 Mill & Overlay, City Project, 09-04." F. Request for Extension of Time for Preliminary Plat Approval for Brockwood Applicant: Brent Hislop Location: North of LRT Trail on Strawberry Lane G. Excelsior Request for Supplemental Police Officers Motion passed 5/0. 4. MATTERS FROM THE FLOOR There were no matters from the floor presented this evening. 5. REPORTS AND PRESENTATIONS A. Excelsior Fire District Budget Report by EFD Chief Gerber EFD Chief Gerber stated Councilmember Bailey had requested he provide Council with a high level overview of the initial drafts of the Excelsior Fire District (EFD) 2010 Operating Budget and the 2010 - 2030 Capital Improvement Program (CIP). He then stated he first wanted to provide a little history. He explained that this is the third budget process he has been involved with during his short tenure. He noted that in 2007 and 2008 the District came in under budget. He also noted the District is only nine years old. He stated during his tenure he thought budget discussions had been very productive, and they helped produce realistic budgets. He explained that in 2008 the EFD Board changed the budget process timeline to allow more time for interactive discussions and to allow member cities' councils the opportunity to provide input earlier in the process. He stated the EFD Board has already had one work session to discuss both the CIP and the Operating Budget. Gerber then stated the District understands it just one of the services the member cities have to fund during this difficult economic time. He explained that the last few EFD budgets that were adopted were realistic. He expressed concern that in order to keep the 2010 increase to a minimum there may be a desire to adopt an unrealistic budget, noting that was the approach used a number of years ago. He also expressed concern that the CIP planned expenditures would be delayed to the point where it would be detrimental to the operation of the District. He explained the biggest issue is the required contribution to the Excelsior Firefighters Relief Association (EFRA); EFRA is the pension component of a fire department organization for volunteer firefighters. He explained that when the EFRA is under funded it requires a contribution from the District to make it whole. Because of the decline in the market, the EFRA's 2008 investments lost significant value and the pension is under funded. Gerber explained the direction he had been given was to prepare a zero percent increase draft budget for 2010, including the significant required contribution to the EFRA. The first operating budget he prepared was close to a zero percent increase, not including the required contribution. The EFD Board will discuss the impact of a zero percent budget increase, including the required contribution, will have on services CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 11, 2009 Page 3 of 18 provided during its May 15, 2009, work session. The Board will be asked to approve the distribution of the preliminary budget to the member cities for review and consideration. There is joint meeting of the member cities' councils and the EFD Board scheduled for 6:00 P.M. on June 10, 2009, to discuss the CIP and Operating Budget. The goal is for the EFD Board to approve forwarding the adjusted CIP and Operating Budget to the member cities for review and approval during its July 22, 2009, meeting. Councilmember Bailey thanked Chief Gerber for his efforts to draft a budget with a minimal increase. He stated he thought that the EFD Board will ultimately discuss if it will be necessary for the member cities to contribute additional funds to help offset the required contribution, noting this would result in some amount of budget increase over 2009. He congratulated Gerber for his success in keeping the increase to a minimum. Councilmember Turgeon thanked Chief Gerber for having completed a draft of the budgets. She also thanked Councilmember Bailey for his hard work relating to the EFRA funding issue. Councilmember Woodruff stated he thought the draft budget was great, and that he appreciated Chief Gerber's positive attitude. He requested Gerber identify and prioritize those services and things that cannot be provided with a zero percent increase budget. Councilmember Zerby stated he appreciated Chief Gerber's and Councilmember Bailey's efforts. Zerby asked how the District was doing with regard to delivery of services and equipment needs. Gerber stated he thought the firefighters were doing a good job of providing services. Gerber noted the information in the EFD 2008 Year in Review report supports that. Gerber stated the District has a very dedicated staff, it has two great facilities and it has good apparatus. Gerber explained the call volume was down slightly. The District averages 15 - 18 firefighters responding to calls. The first-truck-on-scene time averages about 6 minutes. He noted there are areas in the service district which can not be reached in 6 minutes. Zerby stated he had heard that the on-scene response time had increased for Station 2. Gerber stated he was not aware of that, noting there are 14 firefighters who are assigned to Station 2 and that number is higher than it was a number of years ago. Chief Gerber noted that there is a waiting list of people who want to be firefighters and that is the first time that has occurred during his tenure with the District. Mayor Lizde thanked Chief Gerber for running a great department and stated she thought he and the firefighters were doing a great job. She stated she appreciated the great synergy he had created between him, the firefighters and the EFD Board. 6. PUBLIC HEARING None. 7. PARKS Commissioner Edmondson reported on matters considered and actions taken at the April 30, 2009, Park Commission meeting (as detailed in the minutes of that meeting). Director Brown explained during the Commission's park tour a resident had expressed concern about a dangerous swing; the issue is with the design of that particular swing which is not designed for the ultimate safety of small children. Brown stated Xcel Energy had been called to repair two lights in Freeman Park and that should be done in the next few weeks. He also stated the Public Works staff will address the graffiti and benches by field 1 in Freeman Park. CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 11, 2009 Page 4 of 18 A. Demonstration Garden Proposal Park Coordinator Kristi Anderson stated the Park Commission had been meeting with an enthusiastic group of gardeners over the last few months about garden options. Discussions evolved from those about a Community Garden project to teach children about gardening to those about a demonstration garden project, a multi-generational garden experience as part of the summer in the parks series. The meeting packet for this meeting included a copy of guidelines for the demonstration garden. She noted the proposed demonstration garden would be 30 feet by 20 feet and would be placed at the South Shore Community Park (i.e., the Skate Park). She stated the Park Commission recommends approval of the demonstration garden, the guidelines, waiving the permit fee for fencing, and having the City provide a sign for the garden. Woodruff moved, Zerby seconded, approving funding not to exceed $250 out of the Parks budget for the demonstration garden project for 2009; approving the Demonstration Garden Project Guidelines, with the 2009 site location of the South Shore Community Park; waiving the permit fees for the fencing which will be supplied by the Gardeners; and authorizing the City to provide a sign identifying the Demonstration Garden, City of Shorewood. There was ensuing discussion about the type and location of the identification sign. There was consensus to leave that up to the Staff and Park Commission. Mayor Lizee expressed concern that the residents were losing out on an opportunity for community gardens within the City. She thought there was space for them. She has heard a lot of interest expressed for them by the residents. She hoped the Park Commission could address this for 2009. Motion passed 5/0. 8. PLANNING Director Nielsen reported on matters considered and actions taken at the May 5, 2009, Planning Commission meeting (as detailed in the minutes of that meeting). A. Zoning Text Amendment Applicant: South Tonka Little League Location: Freeman Park Ball Fields Director Nielsen stated South Tonka Little League (STLL) has requested amendments to the City's Zoning Code that would allow it to display commercial advertising signs on the ball-field fences of the two fields in Freeman Park used by STLL for little league games. He explained this request would require the Code be amended in six locations, not including changes to the definitions section of the Code. The sign space would be sold to STLL sponsors and the revenue would go to STLL for "scholarships" for families needing assistance with the fees and for expenses. The applicant proposes to display as many as 15 signs on each of the two fields. Nielsen explained an informal request initially appeared before the Park Commission at its December 8, 2008, meeting, noting the Commission voted unanimously against changing the Code. The applicant decided to submit a formal application for the code amendments in late January 2009. The Park Commission discussed the formal application during its February 10, 2009, meeting, and the Commission again voted unanimously against changing the Code. The Planning Commission held a public hearing for CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 11, 2009 Page 5 of 18 this request during its March 3, 2009, meeting. After taking public testimony about the case the Planning Commission unanimously voted to recommend denying the request. Nielsen stated Staff has prepared a resolution denying STLL's request, noting Council had been provided an updated copy this evening with the correct date in the resolution. He explained Council must take action on this request this evening. Frank Kuzma, representing the STLL, stated the City built the fields at Freeman Park 40 - 50 years ago. The STLL and the City have had a great partnership and no matter what action Council takes this evening, he would not want that to change. He explained the STLL is experiencing some difficult financial times and that is why it has made the request. He stated STLL has spent a fair amount of money over the years to help maintain the two fields in Freeman Park, and therefore it has pride in the fields. He noted that the STLL does not think it has any ownership in the fields. He clarified the STLL in no way wanted this to offend the Park Commission by its acknowledgment of STLL's financial contributions. He stated the Park Commission has been great to work with over the years. Mr. Kuzma stated the STLL clearly understood the concerns the two Commissions expressed about advertising signage, noting the City has work diligently to minimize the amount of billboard advertising in the City. Because of that the STLL spent approximately $1,000 for legal services to have the City Attorney investigate amending the Code. The City Attorney's opinion was that the STLL's request could be considered to be unique enough that it would not establish precedent for future similar requests, and the Code could be amended to satisfy the request. He explained the proposed signs would be heavy-duty banners, measuring approximately 3.5 feet high and 7 feet wide. The signs would be up from approximately April 15`h to July 1 s` during spring league baseball and again from September 1 S` to October 151h during fall league baseball. He stated he did not think there were many, if any, ball fields that did not have some type of signage in them; signage is part of that culture. Almost all of the surrounding communities have either amended their ordinances or entered into agreements with leagues to allow this type of signage at ball fields. Mr. Kuzma then stated the STLL did not think approving the STLL's request would establish precedent. He noted the STLL asked the head of the football program and the head of the hockey program if they intended to make similar requests, and both individuals indicated their organizations had no interest in advertising signage. The STLL also contacted representatives from the Shorewood Ponds Homeowners Association and the Shorewood Oaks neighborhood, and they were very supportive of the idea. He noted the City had received many dozen emails in support of this request before people were asked to stop sending emails. Mr. Kuzma explained the STLL Boardmembers are volunteers and they would not benefit financially from this request being granted. The STLL wants every child in the area who wants to play little league baseball to have the opportunity to do so. He noted there were a number of families that did not sign up for baseball this spring because of the cost. The STLL wants to make sure there are scholarships available for families in need. The advertising signage should generate enough revenue to provide needed scholarships and drive registration costs down, noting the STLL's registration costs are the lowest in the area for any sport. He noted the Planning Commission suggested the City pay for more of the maintenance of the two ball fields. He clarified the STLL's proposal for generating revenue does not require any tax dollars from the City yet it helps every family that participates in the program. Councilmember Zerby stated he was the liaison to the Planning Commission for the meeting when the public hearing on this request was held and he heard the STLL representatives explain what they were trying to accomplish. Based on what he heard during that meeting and this evening he was not going to CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 11, 2009 Page 6 of 18 support denying the STLL's request. Corporate sponsorship is very common, noting Excelsior's Fourth of July fireworks has corporate sponsorship. Corporate sponsorships can help relieve the burden on taxpayers. He thought this type of advertising signage would be appropriate to this activity; it's part of the culture of sports. He thought most of the advertising would be community based, and that would help foster community spirit. He recommended Council consider allowing signage in the two ball fields on an interim basis. Mayor Lizde stated the resolution to deny the request for Code text amendments to allow advertising signage could be amended to instead approve the request, and Council could consider the amended resolution. After making a motion to adopt the resolution Council could then further discuss the request. Attorney Tietjen stated if Council has concerns about amending the Zoning Code to allow this type of advertising signage in the two ball fields, Council could consider entering into an agreement or contract with STLL for a limited duration that would allow the STLL to display advertising signage in the ball fields. If Council chose the agreement/contract alternative there would not been any issues with other sports programs. Zerby moved, Bailey seconded, authorizing the City to enter into an agreement with South Tonka Little League that would allow STLL it to display commercial advertising signs on the ballfield fences of the two fields in Freeman Park used by STLL for little league games. Councilmember Bailey stated based on minutes of Park Commission meetings it appeared that the Commission had concerns about establishing a precedent and about aesthetics and the Commission appeared to shift between the two concerns. This gives him cause for concern. He would prefer to address them separately. He asked Attorney Tietjen if the City would have any legal concerns if it approved the request. Tietjen stated Council has discretion in deciding what type of signage it wants to allow. The City has taken a direction to ban billboards. The type of signage the applicant is proposing is off-site advertising; it's different from billboards because it is not located on major highways or roadways and it would not distract drivers. She noted the Courts, including the United States Supreme Court, agree that cities can ban off-site advertising due to aesthetics, the character of the City, etc. The City could also allow this type of off-site advertising without jeopardizing its ban on billboards. She stated she did not think there were serious legal concerns with the proposal. She explained that public parks are considered to be traditional public forums for free speech and signs are considered speech. If the City is going to allow certain types of speech in one public area and not in another, then the City has to have a rational basis for doing so. She thought there could be good reasons for allowing that in this instance. One way to address this request is through crafting a simple contract without making amendments to the Zoning Code. Councilmember Bailey asked Attorney Tietjen if addressing the request through a contract was more efficient than doing so through text amendments to the Code. Tietjen explained the contract approach could be used on a temporary basis, and the City could make permanent changes to the Code after having the opportunity to assess the impact of displaying signage. If the City amended the Code now and later decided it no longer wanted to allow the signage, the Code would have to be amended again. Councilmember Bailey stated the Park Commission expressed concern about aesthetics. He explained there were examples of this type of signage at Bennett Park and Minnetonka High School. He stated to his knowledge no one has complained about it. Field 1 and Field 3 in Freeman Park are relatively secluded from the neighboring properties. He thought it should be possible to design the sign arrangement such that the signs could not be read from Shorewood Ponds properties. He also thought there should be a way to CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 11, 2009 Page 7 of 18 put some restrictions on the signage, and it is important to consider the signs would be up for a relatively short period of time. Councilmember Turgeon stated both the Park Commission and Planning Commission recommended denying the request. She noted that rarely does the Council override the recommendations of the Commissions. She stated that the ball fields at Bennett Park and Minnetonka High School should not be compared to the ball fields at Freemen Park; they are ball fields only and offer no other assets. Although representatives from the hockey and football have indicated they have no desire to display advertising signage, there are other sports programs such as lacrosse and soccer that may want to. She then stated she would not vote in support of the request. Councilmember Woodruff stated he understood the Park Commission's major concern to be whether or not the City would be able to maintain control of signage in the City if this request was approved. He questioned how the City could enter into a contract with the STLL if the contract violated the City Code. He also questioned what the form of the contract would be, and what would prevent the City from having to enter into similar contracts with other organizations. He expressed concern that the City would lose some of the control it currently has over signage if this request was approved. Although he appreciates the STLL has financial needs, he expressed concerned about the unintended consequences that could result from allowing the display of signage in a City-owned park. Attorney Tietjen stated she had not yet thought through how a contract would be crafted, but she is aware that other cities have approached this type of request from that manner. With regard to having a contract that violates City Code, she explained that she would have to craft a contract such that it doesn't violate the Code. She stated the City has the authority to enter into contracts with private parties. Councilmember Woodruff asked how the contract could be written such that the City would not have to enter into similar contracts with other organizations. Attorney Tietjen responded she was not sure, and she noted the City can chose who it wants to enter into contracts with. Councilmember Woodruff stated he originally intended to vote to deny the request because of his concern about establishing a precedent and the City losing its control over signage. He stated Council has to take action this evening, but he is reluctant to take action to enter into a contract with the STLL when there is no contract for consideration. Attorney Tietjen stated the City could discuss with the STLL that it needs more time to consider a contract. Administrator Heck noted that if Council denied amending the City Code it would not preclude the Council from entering into a contract with the STLL to allow it to display signs in the ball fields. Staff could be directed to craft a contract. Without objection by the seconder, the maker of the motion withdrew the motion. Zerby moved, Bailey seconded, Adopting RESOLUTION NO. 09-0259 "A Resolution Denying a Request by South Tonka Little League for Amendments to the Shorewood Zoning Code that would Allow Commercial Advertising Signs to be Placed on Ballfield Fences in Freeman Park." Motion passed 510. Zerby moved, Bailey seconded, directing Staff to enter into a contract negotiations with the South Tonka Little League that would allow STLL to place commercial advertising signs on ballfield fences in Freeman Park in 2009. Bailey asked if the motion should contain any restrictions for the signage. CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 11, 2009 Page 8 of 18 Councilmember Zerby asked if requests for temporary signage had to be approved by Council, to which Director Nielsen stated they do not. Councilmember Zerby stated he hoped the STLL would use good judgment in the design of the signage. Mayor Lizee stated the contract could contain the sign design elements contained in the STLL's application, as well as the specific time periods when the signs could be up. Mr. Kuzma stated the STLL intends to do the right thing. Councilmember Woodruff stated he could support Staff negotiating a contract, but he wanted Council to have the opportunity to approve the contract. Administrator Heck noted that is the normal process. Heck explained Staff will have to determine if it will be possible to craft a contract that does not violate City Code. Woodruff requested Council consider a contract at its May 26, 2009, meeting. Councilmember Bailey recommended the contract specify where the signs can be placed, specifics about what the signs can look like, that signs must be repaired immediately after they are damaged, etc. Mr. Kuzma requested the contract be in effect for one year from the date of approval because the STLL is partway through the spring baseball season. Councilmember Turgeon stated she will vote against the motion because she doesn't believe City-owned parks should have signage in them and she does not think the STLL's request is to generate needed funds for scholarships as the STLL has discussed making other improvements in the ball fields. Motion passed 4/1 with Turgeon dissenting. B. Comprehensive Plan Director Nielsen explained the Planning Commission voted unanimously to recommend the public hearing version of the Shorewood Comprehensive Plan (the Comp Plan) be forwarded to the Metropolitan Council (Met Council) for review and comment during the public hearing for it on May 5, 2009, subject to two changes being made. The changes are the South Shore Skate Park should be added to the Parks map and the text in the Community Facility Chapter, and Lake Linden should be shown as a wetland rather than a lake on the Wetlands and Shoreland map. He noted the Park Commission is working on updating the parks component of the Comp Plan. He stated the Comp Plan has to be submitted to the Met Council by May 31, 2009. The City provided the neighboring cities with a copy of the Comp Plan for their review and comment, noting the City did not receive any feedback from them. He thought the Met Council had 60 days to review the Comp Plan and provide the City with feedback. He stated the Planning Commission will continue to work on updating the Planning District Area Plans. He anticipated neighborhood meetings would be held in September or October to allow residents to comment on the Area Plans and the Comp Plan. Councilmember Woodruff stated the Transportation Chapter should be updated to indicate the City has completed preparation of its Pavement Management Plan, and the reference to the Mound School District in the Community Facilities Chapter should be changed to the Westonka School District. Woodruff moved, Zerby seconded, approving the public hearing draft of the Shorewood Comprehensive Plan be submitted to the Metropolitan Council for review. CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 11, 2009 Page 9 of 18 Councilmember Turgeon suggested the water main size legend be removed from the Comp Plan. In response to a question from Turgeon, Director Nielsen stated the Park Commission will have an opportunity to comment on the updated Comp Plan. Councilmember Zerby stated that residents attended the public hearing for the Comp Plan. He requested that residents in the Planning Districts be notified of the neighborhood meetings where discussions will occur about the Planning District they live in. Motion passed 510. 9. ENGINEERING/PUBLIC WORKS There was nothing for discussion this evening. 10. GENERAL/NEW BUSINESS A. Lake Minnetonka Communications Commission Request for Permission to Enter Into a Purchase Agreement for the Existing Building Administrator Heck stated Tom Scanlon, the Chair of the Lake Minnetonka Communications Commissions (LMCC), is present this evening to request approval from the Council to purchase the facility the LMCC currently leases. The meeting packet for this evening contains a resolution for adoption. Two-thirds of the LMCC member cities must approve the purchase before the LMCC can proceed with the purchase. Staff recommends Council adopt the resolution. Mr. Scanlon explained that it would cost the LMCC $280,000 to continue to lease the current facility for the next five years, and if it were to purchase the facility with a contract-for-deed arrangement, the LMCC would pay $318,000 and own the facility at the end of five years. The LMCC would make a significant down payment on the purchase. The LMCC believes the purchase approach makes the most economic sense. The LMCC made per-square-foot cost comparisons to other properties to verify the purchase price was reasonable. Councilmember Zerby asked Mr. Scanlon what the financial impact of the purchase of the facility would be on cable subscribers. Mr. Scanlon stated there shouldn't be any. Mr. Scanlon explained the LMCC increased its PEG fees a few years ago because they had not been raised for six years, and there is no plan to increase them again. The purchase payments will be slightly higher than the current lease payments, but that should not pose an impact. He noted that because the purchase will done with a contract for deed the member cities would not have any liability. Councilmember Zerby asked what would happen to the facility if the LMCC dissolved, to which Mr. Scanlon responded he thought the facility would be sold and the proceeds distributed to the member cities. Councilmember Woodruff requested Mr. Scanlon research what would happen to the LMCC's assets if the LMCC dissolved and send that information to Administrator Heck. Turgeon moved, Zerby seconded Adopting RESOLUTION NO. 09-026, "A Resolution Approving Acquisition of Real Estate by the Lake Minnetonka Communications Commission." Mayor Lizee requested Council be provided a copy of the LMCC Joint Powers Agreement and minutes of the LMCC meeting minutes when the purchase of the building was discussed, noting this was the first time she heard the LMCC would purchase the facility with a contract for deed. Mr. Scanlon explained CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 11, 2009 Page 10 of 18 that the LMCC's Attorney indicated State Statute dictates that the only purchase option the LMCC could use is a contract for deed option with a length of five years. He noted the LMCC had been discussing the purchase of a facility over the last six months, noting the specifics of the offer was done in a closed-door session. Lizee asked for copies of the meeting agendas and/or minutes when it was discussed. In response to a question from Councilmember Zerby, Mr. Scanlon stated in addition to Shorewood the Cities of Deephaven, Excelsior, Greenwood, Orono, Spring Lake Park, and Woodland have already approved the purchase. Councilmember Zerby asked Councilmember Woodruff, the City's representative to the LMCC, if he was confident this purchase would not increase the financial liabilities to the member cities or cable subscribers. Woodruff explained the monthly costs for the purchase will be slightly higher than current monthly rent costs, and the LMCC is already responsible for maintenance of the facility it leases. He stated the City's appointed citizen representative to the LMCC also supports the purchase of the facility. Mr. Scanlon explained the LMCC currently pays approximately $10,000 for property taxes on the facility it leases and after the LMCC purchases the facility that payment will no longer be made. Motion passed 510. B. Matthew Phillippi Mediation Meeting Update Administrator Heck stated the City and the other two defendants in the case with Matthew Phillippi were headed to court when the judge ordered the parties to enter into mediation. The parties participated in the mediation on Tuesday, April 28, 2009. He expressed high regard for the job the mediator did in getting the participants to reach a settlement offer. He reviewed the settlement offer which is: 1) the defendants will provide the plaintiff $5000; 2) the defendants will cover the costs of the mediator; 3) the case shall be dismissed with prejudice; and, 4) the plaintiff will execute a complete waiver of all claims against the City. Council can either accept or reject the mediated settlement of the case. A representative of the League of Minnesota Cities Insurance Trust (LMCIT) has indicated that the City's cost for this case is approximately $3,500. If Council rejects the settlement offer the defendants will end up in court to defend themselves. He stated Staff recommends Council accept the mediated settlement. Councilmember Turgeon stated when Council discussed the litigation during a Council executive session on April 27, 2009, it is her recollection that Council was told the plaintiff didn't have a case and that the cost would be $500. She questioned why the amount increased to $5,000. Administrator Heck stated there is no guarantee on what a judge may rule in Court. Heck explained that during the mediation Staff was in contact with the representative from the LMCIT and the City's legal counsel, and all parties agreed it was prudent to take the offer. Turgeon requested an executive session be schedule to discuss how the settlement was arrived at. Heck stated he would schedule that for May 26, 2009. Turgeon moved, Woodruff seconded, approving the mediated settlement with Matthew Phillippi and authorizing the City's insurance trust to process payment on behalf of the City. In response to a question from Councilmember Bailey, Attorney Tietjen explained because the case was dismissed with prejudice the plaintiff can not ever renew his case. Motion passed 510. C. Southshore Center CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 11, 2009 Page 11 of 18 Administrator Heck stated the Southshore Center Working Group met on April 30, 2009, to continue discussion about the proposals received from Community Rec Resources (CRR) and Charthouse Management for providing services for the operation and programming of the Center. There was Group consensus to work out a management agreement with CRR based on the proposal it submitted and the agreement will be in effect for 42 months. The Group also initiated discussion about possible options for managing and funding Center operations, noting the Group did not reach any conclusion. One option the Group discussed was to establish an advisory board, which CRR recommended in its proposal, to work with the management group on programming and related issues. A management committee would be established with representation from all five member cities (the Cities) based on some to-be-determined criteria. He stated at the end of that meeting Deephaven Mayor Skrede asked if Shorewood would be willing to be solely responsible for managing the Center, and if so what would Shorewood's conditions be for doing so. Skrede has since submitted a list of possible conditions (a copy of which was provided to Council). Heck reviewed three items Council should act on this evening. The first item is to determine if Council supports entering into a management agreement with CRR. He explained the Cooperative Agreement between the Cities allows for three of the five Cities to approve changes for operating the Center, and the Excelsior and Greenwood Councils have already approved entering into such an agreement. The second item is to act on the resolution included in the meeting packet for this evening which states Shorewood supports the continued use of the Southshore Center facility as a community center and will work with the other member cities to make that happen. The third item is to decide what approach Council wants to take with regard to the operation of the community center. He noted that Mayor Lizde and Councilmember Turgeon both attended the April 30`h meeting. Councilmember Turgeon stated she had to leave the meeting before it ended. She commented that based on various emails it did not appear the Group discussed funding alternatives during the meeting. She questioned if the funding alternatives were ever discussed by the Group. Administrator Heck explained the Group discussed items that might be considered when developing a funding formula, but it did not discuss specific numbers or percentages. The example he prepared was not intended to be a proposal; it was based on discussions the Group had about what factors should influence the funding formula (e.g., share of original investment, population, usage, ad valorem, distance, etc.). Excelsior Councilmember Miller identified funding formula alternatives. Deephaven Mayor Skrede's possible conditions included Shorewood would be responsible for all costs to operate the Center and it would be entitled to any revenues received, the other cities could voluntarily contribute to the operation of the Center, in the future Shorewood "may" be responsible for paying the other Cities for their original investment in the construction of the Center, and if the facility were ever sold the Cities would get their share of the proceeds. If Council chooses to have Shorewood be solely responsible for the Center there would be a lot of risk for Shorewood and there would be very little reward for Shorewood. He did not think any private sector individual would enter into an arrangement where they accepted all of the risk and had little opportunity for reward. He does not recommend Council move forward with this type of approach unless there were some more significant conditions that would lessen Shorewood's risk in the long term. Councilmember Zerby stated it would difficult to run an organization without knowing what the contributions to the operating budget would be. Councilmember Turgeon asked Council if it would be willing to be the sole owner of the Center, noting she asked the same question of Council during its last meeting. The answer was Council did not want to spend $311,000 to do so. Councilmember Zerby stated he could possibly support that provided there was a long-term plan to run the Center as a community center. CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 11, 2009 Page 12 of 18 Councilmember Turgeon stated the only proposal she wanted to discuss this evening was the one to have Shorewood be solely responsible for the Center's operations. She thought the Group recommended this option and the Group had not discussed the funding formula. Shorewood would not have to pay the other Cities for their initial contributions until the building was sold, commenting that the existing Councilmembers would no longer on the Council when that happens. She agreed this would be a huge risk. She continues to hear what a valuable community asset the Center is. She thought the risk is having five cities trying to jointly manage the Center. She expressed willingness for Shorewood to hire the right organization to manage the operations and programming of the Center and develop a plan to do so while accepting the risk. She understood the other Cities would be willing to have Shorewood solely run the Center and Shorewood would not have to pay the Cities back their original investment until the Center is sold. She stated if the Cities don't terminate their participation in the Cooperative Agreement then they don't get reimbursed the investment until the facility is sold. If Shorewood cannot make the Center viable then maybe the community center should cease to exist. Councilmember Zerby questioned how viable would be defined. He thought it would be wrong to define viable as either breaking even or making money. Councilmember Turgeon stated she had not given a definition of viable. Mayor Lizee clarified the Group had started to discuss Deephaven Mayor Skrede's suggestion of having Shorewood be solely responsible for managing the Center during it's April 30'h meeting. It would be inappropriate to say the Group recommended this option. Mayor Lizee recessed the meeting at 9:01 P.M. Mayor Lizee reconvened the meeting at 9:11 P.M. Mayor Lizee noted there was a meeting of the Group scheduled for May 10 at 1:00 P.M. Lizee stated there were three action items for Council to consider this evening. The first is to determine if Council supports entering into a management agreement with CRR for providing services for the operation and programming of the Center. She stated she would entertain a motion to approve that. Councilmember Bailey stated the Group had requested the two firms provide additional information a few weeks back and he has not been provided with a copy of the additional information. He noted he had received a copy of the original RFPs. He stated he was uncomfortable voting on something he hasn't seen in its entirety. Administrator Heck stated he will provide Council with copies of the supplemental responses from the two firms. Councilmember Woodruff stated he would like the opportunity to review the supplemental information. Woodruff stated he did not want to approve entering into an agreement until the Cities reached an agreement about what approach will be used to oversee the management of the Center. Councilmember Turgeon asked the Councilmembers if they wanted to support, what she termed, the Group's recommendation to have Shorewood be solely responsible for the Center. Mayor Lizee stated Councilmember Turgeon was focusing on Deephaven Mayor Skrede's email about Shorewood being solely responsible for the Center. The Group had been discussing operating the Center as a joint partnership and that should be discussed. If Council chooses to take that approach, then that approach can be discussed at the May 14`h Group meeting along with funding formula discussions. If Council wants Shorewood to assume sole responsibility for the Center then the Cooperative Agreement must be amended with agreement by four of the five Cities. Councilmember Woodruff questioned what CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 11, 2009 Page 13 of 18 the Group's recommendation was; Skrede thinks it was to have Shorewood be responsible for the Center. He stated it was not clear to him how many of the Cities would have to agree to an approach before it would take effect. Administrator Heck explained the Group has not established any operating parameters. During the Group's April 30'" meeting there was consensus by four of the Cities to craft a management agreement with CRR. The Group did not make a recommendation either way as to whether the Cities should work together or have Shorewood be solely responsible for the Center. Skrede wanted Council to consider if Shorewood would be willing to be solely responsible for the operation of the Center and if so under what conditions. Skrede's approach was not endorsed by all five Cities. Tonka Bay sits on the fence. Greenwood's desires vary based on the representative in attendance, noting that Greenwood has indicated that under certain conditions it could support Shorewood assuming responsibility for the Center to alleviate the problems of having the Cities collectively running the Center. Excelsior wants to operate the Center as a joint partnership, and Excelsior Councilmember Miller identified some alternatives for funding the operations. Councilmember Woodruff stated he thought the conditions identified by Deephaven Mayor Skrede were acceptable to him. He can't comment on a proposal to manage the Center jointly because he has not seen a proposal. He questioned how many Cities needed to agree to a decision before it would be binding. Attorney Tietjen stated changes regarding the operation of the Center would require majority approval of the Cities. Skrede's point in his email that the Cities' initial investment would not need to be paid out until the Center is sold triggers the issue of exercising the Shorewood Option in the Cooperative Agreement; if Shorewood takes over the operation of the Center Shorewood has to pay the other Cities in accordance with the provision in the Agreement. Deephaven Mayor Skrede stated, from his vantage point, the proposal he submitted was not just his proposal. He suggested the Group consider Shorewood being solely responsible for Center at the end of the April 30'x' meeting. He stated at the end of the discussion about funding formulas during that meeting Greenwood and Tonka Bay indicated they were in willing to "leave money on the table" which is what prompted his recommendation. At the end of the April 30'" meeting Administrator Heck was asked to present this option to the Shorewood Council. The Group's participants, with the exception of Excelsior representatives, indicated they wanted to know if Shorewood was willing to assume responsibility and if so what were the conditions of doing so. The discussions during the May 14"' Group meeting would depend on what the Shorewood Council chooses to do. That was his basis for sending an email describing this alternative. Councilmember Zerby asked if the question before Council was to decide if Shorewood would assume responsibility for operating the Center with the stipulation that the other Cities may or may not contribute to the cost of doing so. Deephaven Mayor Skrede stated he may have sent the email, but not because it was his idea. He used it as an opportunity to flesh out the issue associated with Shorewood assuming responsibility for the operation of the Center. It was Deephaven's, Greenwood's and Tonka Bay's desire to find out if Shorewood would be willing to be solely responsible for operating the Center if they agreed that Shorewood would not have to pay them for their original investments until the Center is sold, noting the Cities could make voluntary contributions toward the operation of the Center. Mayor Lizee stated CRR and Charthouse Management had made presentations to the Group about their proposals. During its April 30`x' meeting there was Group consensus to accept the proposal from CRR for an amount of $28,000 annually. The Group decided to continue funding formula discussions to its May CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 11, 2009 Page 14 of 18 14`h meeting. She expressed concern about the risk of Shorewood assuming total responsibility. She stated the Group has been discussing a partnership arrangement during its meetings; that is what the community has asked the Group to do. If Shorewood wants to assume responsibility for the Center, the Cooperative Agreement will have to be amended. She asked the Councilmembers if they were interested in a partnership arrangement with the other Cites. She understood most of the other Cities were interested in doing so. Councilmember Bailey stated the community was very clear in expressing its desire to have the Center remain a community center. The issue of operating the Center under a joint powers agreement (JPA) type arrangement has not been discussed. From his vantage point, a JPA type of arrangement was a weak- handed approach to running the Center and that approach results in confusion about who is responsible for what. The Cities have not appeared to be very comfortable with committing to funding the operation. He would be more comfortable with there being a strong-had approach to running the Center; an approach where one City has sole responsibility for running the Center. He thought there would be more risk with a week-hand (partnership) arrangement than a strong-hand (a one-city) arrangement. There would be a much better opportunity for an organization such as CRR to run the Center as a low subsidy operation if it was a strong-hand operation. He thought it likely that the operation would have to be subsidized. He stated the Center could, in some ways, be considered similar to a park operation, and the City does not have a weak-hand approach to running its parks. He commented that the first CRR proposal stated CRR would prefer to work with one city. He suggested that Mayor Lizee and Administrator Heck work with the Group to define an arrangement similar to what Deephaven Mayor Skrede defined in his email. He also suggested a timeline be determined for how long the arrangement would remain in effect. He proposed three years. He did not anticipate Shorewood would lose a lot of money in three years. Councilmember Zerby stated he would not be in support of having to ask the other four Cities for a voluntary contribution each year to help subsidize the operation of the Center. He could support Shorewood being solely responsible for the operation of the Center with the stipulation that the other Cities commit a to-be-determined amount to subsidize the operations. Based on past usage, Deephaven uses the Center 8 percent of the time and it would be unfair for Deephaven, or any other City, to possibly pay nothing toward the operation of the Center. Shorewood and Excelsior combined account for 80 percent of the usage of the Center. Councilmember Bailey stated he would not count on the other Cities making a voluntary contribution; a budget should be prepared assuming they wouldn't. Zerby stated the Center is a community center, and the Cities need to support it financially. Councilmember Turgeon stated if the Center is as good of an asset as the residents in the community think it is then she assumes they will support the Center though the use of it. She then stated she is willing to have Shorewood assume the risk for operating the Center. Zerby questioned what happens in two years if the other Cities have made no contribution. Turgeon stated she is willing to do it for three years; which is the same as the terms specified in the CRR and Charthouse Management RFP. Councilmember Woodruff stated the CRR proposal indicates a cost of $28,000 annually. If a cost of $30,000 were used it would amount to $12 per household annually. He expressed willingness to invest that amount in the Center to keep it running. He stated the City has the wherewithal to make this work. He thought there were many things that could be done to make the operation close to a break-even operation while continuing to provide an asset to the community. He commented maybe memberships to the Center could be considered. He expressed support for Shorewood making a business out of operating the Center; he thought it would be easier to run the Center that way. He recommended a non-voting advisory group be established to provide Council and management for the Center with input on what's important to the residents in the community. He expressed extreme concern about the Cooperative Agreement being discussed. He thought it appropriate to craft a new document that supersedes the Cooperative Agreement, noting the Cooperative Agreement dealt with the construction of the facility. CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 11, 2009 Page 15 of 18 Mayor Lizde agreed there needed to be an agreement about the management and operation of the Center. The Group has discussed the possibility of establishing a 7 - 8 member board for the Southshore Center; one made up of representatives from the Cities. Representation could be based somewhat on funding percentages. She stated she and Administrator Heck will convey Council's discussion to the Group during its May 14th meeting. She suggested Council discuss the issue of trust level among the Cities. It's important the other Cities understand that Shorewood is committed to keeping the Center a community Center. The Group has been discussing a partnership arrangement because the Center is an asset for the entire community; the other Cities do not want to be shut out of the process. She will bring the sentiments of Councilmembers Bailey, Turgeon and Woodruff to the Group during its May 14th meeting, noting she does not share those sentiments. She clarified it was up to the Group to make a decision. Mayor Lizde stated she would like a motion on the resolution about the Shorewood Council supporting the use of the Center first and foremost as a Community Center and pledging to seek common ground with the other cities to ensure its success. Councilmember Turgeon requested this be continued to the next Council meeting when Council will also consider the RFPs. Councilmember Woodruff stated the resolution was quite broad; it could cover a number of different scenarios for seeking common ground. Woodruff moved, Zerby seconded, Adopting RESOLUTION NO. 09-027. "A Resolution in Support of the Use of the Southshore Center as a Community Center." Councilmember Bailey stated the resolution does not indicate how issues will be resolved. He supported the City working with the other Cities to ensure the Center's success. He wanted to make sure the resolution did not implicate any particular solution. Councilmember Turgeon expressed concern about how the resolution could be interpreted. She stated she didn't think the resolution meant anything. She preferred not to adopt the resolution because Councilmembers have all stated they want to keep the Center as a community center and make it a success during various Council meetings. She was unsure what the resolution would accomplish beyond that. Councilmember Zerby stated his philosophy of "if you can say it, you can write it" applies in this instance. The resolution is what the more than 1,000 petitioners asked for and what Council has previously committed to; that is, keeping the Center a community center. Councilmember Bailey stated he will vote in favor of the resolution. He asked Mayor Lizde and Administrator Heck to convey the Council's discussions this evening to the Group during its next meeting. Councilmember Turgeon echoed Bailey's comments. Councilmember Zerby stated he wanted to have more structured minutes prepared for the Group meetings. Councilmember Woodruff also would like to receive minutes of the meetings and he wanted to be noticed of upcoming meetings. Motion passed 510. Administrator Heck clarified that the April 30th meeting was scheduled two days in advance of the meeting. He stated based on the opinions of three Councilmembers it appears that Shorewood wants to consider becoming solely responsible for the Center. He recommended Council specify conditions for doing so. He did not recommend Shorewood assume a $311,000 liability. He recommended that because there would be no commitment by the other Cities to contribute to the operation of the Center their investments should diminish over time; for every dollar the City spends to subsidize the Center those CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 11, 2009 Page 16 of 18 dollars would be subtracted from the $311,000 liability. Should Shorewood pay $28,000 for management services for the Center over the next 15 years it would have that loss plus the $311,000 liability. Councilmember Woodruff stated he did not agree that if Shorewood assumes sole responsibility for the Center that it has assumed a $311,000 liability. He explained if Shorewood runs the Center the other Cities investments remain as is. The provision in the Cooperative Agreement about how the Cities would recoup their investments if the Center is sold should be carried forward to any new agreement. Shorewood would run the Center for three years and if it doesn't work out Shorewood would opt out and the other Cities would have the opportunity to run the Center if they so chose. The City could consider an idea of signing a lease for the Center for three years similar to the Friends arrangement. He recommended a new agreement be crafted for Shorewood to have sole responsibility for the Center for three years with an escape clause that it could terminate that arrangement after three years. If Shorewood opted out one of the other Cities could decide to make a go of it. If not, the Center would be sold. He recommended a new agreement be crafted containing some of the conditions specified by Deephaven Mayor Skrede and the three-year lease arrangement similar to the one the Friends had. Councilmember Bailey stated a lease arrangement could be a good idea. It doesn't require re-crafting of the Cooperative Agreement. He recommended a timeline be added. He expressed confidence that Shorewood could make the Center's operations successful. He commented that CRR's proposal identified an aggressive campaign strategy to improve the use of the Center. He stated he was not opposed to subsidizing the Center just like the City subsidizes the City's parks. Councilmember Woodruff stated the City contributed $21,000 to the operation of the Center in 2008. The additional $9,000 to subsidize it would not be much more than what was spent in 2008. 11. STAFF AND COUNCIL REPORTS A. Administrator and Staff 1. City Hall Construction Update Administrator Heck stated the renovation of City Hall is nearly complete. The rough grade will be completed in the next few days. The new sidewalk in the front of the building and the concrete in the back stoop will be replaced on May 15`" 2. Information Item - Tour de Tonka Special Event Permit Administrator Heck stated the meeting packet for this meeting contained information regarding the fourth annual Tour de Tonka bike ride scheduled for August 1, 2009. Other Staff Reports Administrator Heck stated it is likely a City Council work session will be scheduled for May 26, 2009, to discuss goals and a City Council executive session will also be scheduled for that same evening to discuss the Matt Phillippi settlement. Director Brown stated the SE Area Water Tower is now in service. AT&T plans to have its cellular antenna reinstalled on the Tower in the next two weeks, and its cellular antennae on wheels will be removed from the site at that time. He had intended to have the Smithtown Lane and Harding Lane feasibility studies on the agenda this evening but he was not in agreement with the draft feasibility reports the City received. He explained during the most recent test of the outdoor sirens a different scenario was CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 11, 2009 Page 17 of 18 used to test various sirens. During that test some of the sirens did not go off; therefore, Staff is working with Hennepin County Emergency management personnel to resolve the problem. Councilmember Zerby stated a few months ago there was discussion about signage for cross streets. He asked about the status for that. Director Brown stated the City received a quote for signage on Smithtown Road. B. Mayor and City Council Councilmember Bailey distributed a copy of the 2009 Year-to-Date Monthly Budget Report for the month ending March 2009. Although he thought it was a good first attempt at the report, it was somewhat confusing because it doesn't equate anything to dollars in terms of variances. He highlighted how he thought the report could be used by Council and Staff. He explained the 2009 budget for Professional Services is $205,500. The projected expenditure through March was 16.67 percent of the budget (or $34,257). The actual expenditure through March is $92,977 (or 45.24 percent of the $205,500 budgeted amount). The year-to-date variance is a negative $52,720. The negative variance could be caused a poor forecast or the City could be spending a great deal more on professional services than planned. The expenditures for public safety services also exceeded projections. The report indicates the City is approximately $204,400 over budget based on projections through March. He suggested that in the not to distant future Council and Staff discuss the more significant variances and the reasons for them. Council can then decide what corrective action should be taken. Councilmember Woodruff expressed concern about the budget variances; both expenditures and revenues. He urged Administrator Heck and Director Burton to review the variances and assess the ramifications of them, and he recommended the April revenues and expenses be considered as part of their review. He stated a plan of corrective action may need to be taken sooner versus later. He also asked Staff to review the Enterprise Budgets as well and report back to Council on them also. Administrator Heck stated he agreed that the professional services projections through March should be higher than 16.67 percent. He stated he will review that category in more detail. With regard to public safety, the expenditures through March include the first two quarter payments for fire services and police expenditures represent the first four months of payments. Councilmember Bailey stated the calendarized projections should be adjusted to reflect that. Councilmember Woodruff stated the Lake Minnetonka Conservation District (LMCD) Board had preliminary budget discussions the previous week. LMCD staff prepared a zero percent budget increase, although that may increase slightly. The 2010 budget will reflect continuing the increase in inspections for aquatic invasive species; that requires additional funding. Councilmember Turgeon stated Council should be planning on giving Administrator Heck his mid-year performance review by mid-July. Mayor Liz6e stated Administrator Heck will email the form to the Councilmembers and they can email their input back to her for compilation. Councilmember Turgeon stated she received a phone call inquiring about an open house event scheduled for May 18'h at the Southshore Center which is sponsored by Minnetonka Community Education (MCE), the South Shore Senior Partners (SSSP) and the City of Shorewood. She asked what the purpose of the event was. Mayor Liz6e stated it's a community open house that MCE and the SSSP are organizing. They have invited representatives from Ride Net and Dial-a-Ride to discuss their programs and services. The event is scheduled for 10:00 A.M. - Noon. Turgeon requested Council be informed of all events sponsored by the City. Liz6e stated she just recently learned of the event, and she thought it was CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 11, 2009 Page 18 of 18 appropriate for the City to promote it because it will be held in the City. CUB Foods and Caribou Coffee are providing refreshments to attendees; the City is not expected to provide anything. The mayors have been asked to attend. Councilmember Woodruff also requested Staff notify Council of such events. Administrator Heck stated he was not aware of the event. Councilmember Zerby stated he received a phone call from a resident on Lilac Lane; the resident informed him that the postal carrier informed them that the City is going to be consolidating mail boxes. Director Brown stated he heard something similar from a resident on Stratford Place so he contacted the post office and is waiting for a response. Zerby stated he understood the postal services to have that authority. Mayor Lizee stated she had a coffee with the mayor session on May I I1h. Residents expressed concerns about the condition of the pond at Manor Park. She suggested Council discuss the purpose of that pond and how it would be maintained. Residents also expressed their desire to continue to operate the Southshore Center as a community center. 12. ADJOURN Woodruff moved, Turgeon seconded, Adjourning the City Council Regular Meeting of May 11, 2009, at 10:20 P.M. Motion passed 510. RESPECTFULLY SUBMITTED, Christine Freeman, Recorder ATTEST! Christine Lizee, Mayor