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05-24-10 CC Reg MinCITY OF SHORE' WOOD 5755 COUNTRY CLUB ROAD CITY COUNCIL REGULAR MEETING COUNCIL CHAMBERS MONDAY, MAY 24, 2010 7:00 P.M. MINUTES 1. CONVENE CITY COUNCIL REGULAR MEETING Acting Mayor Turgeon called the meeting to order at 7:01 P.M. A. Roll Call Present. Acting Mayor Turgeon; Councilmembers Bailey, Woodruff and Zerby; Attorney Tietjen; City Administrator Heck; Finance Director Burton; Planning Director Nielsen; Director of Public Works Brown; and Engineer Landini Absent: Mayor Lizee B. Review Agenda Councilmember Bailey requested Item 10.A be discussed after Item 7 on the agenda. Director Nielsen requested item 8.1) South Tonka Little League — Conditional Use Permit for Batting Cages be added to the agenda. Bailey moved, Zerby seconded, approving the agenda as amended. Motion passed 4/0. 2. APPROVAL OF MINUTES A. Joint City Council/Planning Commission Meeting Minutes, May 4, 2010 Woodruff moved, Zerby seconded, Approving the Joint City Council/Planning Commission Meeting Minutes of May 4, 2010 2010, as presented. Motion passed 4/0. B. Joint City Council/Park Commission Meeting Minutes, May 10, 2010 Zerby moved, Woodruff seconded, Approving the Joint City Council/Park Commission Meeting Minutes of May 10, 2010, as amended in Item LA, Page 1, change "Planning Director Brown" to "Director of Public Works Brown ". Motion Dassed 4/0. C. City Council Regular Meeting Minutes, May 10, 2010 Woodruff moved, Bailey seconded, Approving the City Council Regular Meeting Minutes of May 10, 2010, as presented. Motion passed 4/0. 3. CONSENT AGENDA Acting Mayor Turgeon reviewed the items on the Consent Agenda. Woodruff moved, Bailey seconded, Approving the Motions Contained on the Consent Agenda and Adopting the Resolutions Therein. CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 24, 2010 Page 2 of 18 A. Approval of the Verified Claims List B. City of Mound Fire Contract C. Personnel Action — Accept the Resignation of the Finance Director and Authorize Recruitment of Finance Manager /Analyst (This was moved to Item IO.G under General/New Business.) D. Adopting RESOLUTION NO. 10 -024 "A Resolution Accepting 'Bid and Awarding Contract for the 2010 Bituminous Seal Coating of Streets, City Project No. 10 -07." E. Adopting RESOLUTION NO. 10 -025 "A Resolution Approving a Change Order 1 for the 2010 Nelsine Drive, Meadowview Road and Wild Rose Lane Street, Drainage and Utility Improvements, City Project No. 10 -01, 10 -02." F. Authorize Expenditure of Funds for Playground Equipment Improvements G. Accept Proposal for Safe Assure Motion passed 4/0. 4. MATTERS FROM THE FLOOR There were no matters from the floor presented this evening. 5. PUBLIC HEARING None. 6. REPORTS AND PRESENTATIONS A. Minnetonka Community Education (MCE) Representative Tad Shaw Report on MCE Activities Acting Mayor Turgeon stated Tad Shaw, the City's representative on the Minnetonka Community Education (MCE) Advisory Council, was present this evening to give a report on MCE activities. Mr. Shaw stated he had been the City's representative on the MCE Advisory Council for most of the past 33 years. MCE grew from giving violin lessons and running sports programs to the all encompassing program it is today. MCE publishes a catalogue of programs it offers three times each year. MCE is run by the Minnetonka School District. Eighty -five percent of the cost of the programs is paid for through user fees. The remaining 15 percent comes from a levy and state funds. The City's residents don't have any liability for MCE. MCE provides early childhood family education programs, youth programs, adult programs, and programs for people with disabilities. Program attendance was up 10 percent in the fall of 2009 over the fall of 2008. Unfortunately, attendance was down 10 percent this past winter over the previous winter. He noted MCE program attendance is much higher than for other school districts in the area. He stated those who participate in MCE programs are surveyed a great deal. The survey ratings have consistently been in high 80 percent range. He noted that MCE's budget for this year (which is $7,352,000) is $200,000 higher than last year's budget. CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 24, 2010 Page 3 of IS Councilmember Woodruff asked what the City can do to help. Mr. Shaw responded MCE has trouble finding enough classrooms as well as space for different projects. Shaw noted that MCE uses some of Shorewood's parks for some of its summer classes. He stated MCE would like to have a nice large classroom somewhere but he did not think that was feasible at this time. He then stated support and good words are what MCE needs from the City. Woodruff stated the City is investing in improvements to shelter in Manor Park in order to support MCE's proposed expansion of activities. Woodruff noted there is space availability at the Southshore Community Center. Mr. Shaw stated he was impressed with the improvements to the Center. Councilmember Woodruff commented that for those Shorewood residents who are not part of the Minnetonka School District (i.e., those that live on Enchanted and Phelps Islands) the Westonka School District has a similar program. He noted those residents can take advantage of the MCE programs as well. Mr. Shaw clarified MCE doesn't require participants to be residents in the Minnetonka School District. B. Linda Murrell, Director of the South Lake — Excelsior Chamber of Commerce, Request for Funding for the Lake Minnetonka Fourth of July Celebration Acting Mayor Turgeon stated Linda Murrell, Director of the South Lake — Excelsior Chamber of Commerce, was present this evening to make an annual request for funds for the Lake Minnetonka Fourth of July Celebration. Ms. Murrell stated this year's celebration will again be an ambitious, patriotic, and family oriented event in spite of the recession. She noted some changes have been made for the upcoming celebration. She also noted that the 34 10K Firecracker Run and 2 -Mile Run will be held this year. She stated it's anticipated the participants and crowds will be even larger this year because July 4 falls on a Sunday. Ms. Murrell then stated the day's activities include a firecracker race, a sandcastle building contest (sponsored by the Excelsior Rotary Club), a kids' patriotic parade (sponsored by Knewtson Health Group) a fun run and kids' patriotic popsicle party, kids face painting (sponsored by Wells Fargo), a kids fishing contest (sponsored by Lifetime Chiropractic), a kids' post parade concert (sponsored by Xcel Energy), a magic show (a new activity planned for this year), two teenage bands, a performance by the Minnesota Orchestra (for the eleventh year in a row and sponsored by Byerly's of Chanhassen), and a fireworks display. She noted the Minnesota National Guard will introduce the national anthem. It will do the presentation of the colors, and it will do the 21 -gun salute afterward and taps. Ms. Murrell explained the celebration is an expensive event to put on. It's been harder to get corporate contributions during these tough economic times. Corporations are solicited to sponsor events. The general public is asked to help fund the fireworks display. The five cities located in the South Lake chamber area are being asked to help fund the public safety aspect. She asked if the City of Shorewood would contribute the same amount as it contributed in 2009. Bailey moved, Woodruff seconded, authorizing $2,200 of funding to the South Lake — Excelsior Chamber of Commerce's Lake Minnetonka Fourth of July celebration activities. Acting Mayor Turgeon stated she was not willing to contribute $2,200, but she would be willing to support a smaller contribution. She then stated most of the cities' contributions go toward the South Lake Minnetonka Police Department's ( SLMPD) costs, and the Excelsior Fire District (ETD) provides totally volunteer services. She expressed she had issue with that. She stated she would be willing to support contributing $2,200 provided some of the funds go to the ETD for the volunteers that work that event. She thought the SLMPD charges an hourly rate for the services it provides. CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 24, 2010 Page 4 of 18 Councilmember Zerby stated he did not think Council should earmark the contribution. He thought the organizing body should decide how to disburse the funds. He noted there are many people who volunteer at this event. Ms. Murrell stated that during an Art on the Lake committee meeting earlier in the day EFD Chief Gerber explained the EFD Board is going to discuss a change to its cost recovery policy re arding compensation for providing services at certain types of events. She then stated the July 4` event organizing committee may consider making a contribution to the EFD after the expenses for the event have been paid. Motion passed 311 with Turgeon dissenting. Ms. Murrell thanked Council and the City of Shorewood. 7. PARKS No report was given. Director Brown stated the Park Commission did conduct a tour of City -owned parks prior to its May I I" meeting. Administrator Heck stated the City was notified earlier in the day that the City's grant application through the Hennepin County Youth Sports Grant Program will be considered on May 25'. If the City is awarded a grant, the funds would be used to help offset some of the cost for improvements to the shelter in Manor Park and for the potential boundless playground that may be constructed in that Park. In response to a question from Councilmember Woodruff, Director Brown explained he has contacted an electrician to have them evaluate the condition of the lighting in Cathcart Park. Brown stated it's his understanding that the Park Commission would like to get another year of use out of the current lighting system. Brown explained it may not be possible to complete construction of an open ice rink with lighting in Freeman Park before this upcoming winter season. 8. PLANNING Commissioner Geng reported on matters considered and actions taken at the May 18, 2010, Planning Commission meeting (as detailed in the minutes of that meeting). He stated he thought the meeting of the Planning Commission and four of the ten owners of the properties located in the Smithtown crossing area went well. It was very candid and productive, and it opened up the channels of communication. The property owners appeared to be very realistic in understanding that redevelopment is not anticipated in the near future. The owners of the American Legion property and the vacant property indicated they understood there are benefits to developing the properties jointly. They do have a strong preference to having their own facility. The representatives of the Heartbreaker property indicated they would not stand in the way of a joint redevelopment and they would consider selling the property. A. Brockwood Final Development Plan Director Nielsen explained that this evening Council had been provided with a revised Brockwood development agreement. He reviewed the changes in the agreement. The agreement was changed to be between the City and Synergy Land Company, LLC, rather than the City and Brent E. Hislop and Karen A. Hislop. The acreage was changed to approximately 6.5 acres from approximately 5.3 acres. Item. L(01) under Improvement Installed by Developer will be changed to say "All site grading where needed." Item 5 Schedule of Work was changed to say "It is understood and agreed that the work may be CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 24, 2010 Page 5 of 18 performed in two phases, all of which shall be completed by 1 June 2011." The address for sending notices to was changed in two places to the address for Synergy Land Company, LLC, care of Brent Hislop, In Item 30 Successors and Assigns the developer executor of the agreement was changed to Brent E. Hislop, Chief Manager Synergy lane Company, LLC, Director Nielsen stated Staff recommends approval of the final plat subject to the payment of park dedication fees, local sanitary sewer access changes, and the applicant submitting a letter of credit for one and one -half times the estimated amount of the improvements. Councilmember Bailey asked if there were any major changes to the plat itself from the last time Council discussed this item. Director Nielsen explained there were some minor changes to the subdivision sketch. Councilmember Zerby stated the LRT trail runs close to the south corner of the property, and he asked if there would be any buffering of the trail. Director Nielsen explained the way the plat is designed does that more than anything. All of the proposed lots will be located on the north side of the future road. When the current Lot 2 is developed it's expected there will be some buffering. In response to a question from Acting Mayor Turgeon, Director Nielsen explained the proposed street in front of the platted lots and the street right -of -way connects to the trail at the east end of it. Bailey moved, Zerby seconded, Adopting RESOLUTION NO. 10 -026 "A Resolution Approving the Final Plat of Brockwood." Councilmember Woodruff suggested the motion be amended to say per the revised agreement distributed this evening being amended in Item. 1.(01) Improvement Installed by Developer to say "All site grading where needed." Without objective by the maker or seconder the motion was amended to include the revised agreement being amended in Item. 1.(01) Improvement Installed by Developer to say "All site grading where needed. ". Motion passed 4/0. B. Ordinance Amending Chapter 1201.03 of the City Code Relating to Campaign Signs Director Nielsen explained the state now allows campaign signs and noncommercial speech signs to be displayed 46 days prior to the primary election and 10 days after the general election during a general election year. The City can regulate the location of signs but it cannot regulate the size of the signs or the number of them. Zerby moved, Bailey seconded, Approving ORDINANCE NO. 467 "An Ordinance Amending Chapter 1200 of the Shorewood City Code Regarding Campaign Signs." Motion passed 4/0. C. Comprehensive Plan Final Draft Director Nielsen stated Council has been receiving the changes Staff has been making to the Comprehensive Plan per the Metropolitan Council's recommendations. The City has received approval from the Metropolitan Council to put the 2009 Comprehensive Plan Update into effect. Woodruff moved, Bailey seconded, directing Staff to prepare a resolution adopting the 2009 Comprehensive Plan Update. Motion passed 4/0. CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 24, 2010 Page 6 of 18 D. South Tonka Little League — Conditional Use Permit for Batting Cages Director Nielsen explained that South Tonka Little League (STLL) proposes replacing the existing batting cage in Freeman Park with three cages to be located in the same place in the Park. The existing cage has a chain -link enclosure with a concrete pad. The new facility would have a steel fence frame with mesh netting suspended from it. The bottom of the cages would be surfaced with ag -lime (which is a crushed limestone material). The Park Commission recommended approving the installation of the batting cages. The Planning Commission held a public hearing for this conditional use permit (C.U.P.) application during its May 18, 2010, meeting and the Commission unanimously recommended Council approve the C.U.P. for the installation of the cages. He noted the Planning Commission recommended STLL sign the City's donor policy form which specifies the cages become the property of the City. Nielsen stated Staff recommends Council direct staff to prepare a resolution granting the conditional use permit for the installation of the three batting cages and authorizing STLL: to start construction of the cages May 25, 2010. Councilmember Woodruff asked what organization will be responsible for the proposed improvements to the cages and for replacing the netting as needed. 'Director Nielsen stated STLL will be responsible for replacing the netting and that will be specified in the donor policy. Woodruff recommended the resolution include that STLL is responsible for replacing the netting. Woodruff moved, Bailey seconded, directing Staff to prepare a resolution granting a conditional use permit to South Tonka Little League for replacing the batting cage in Freeman Park with three new batting cages subject to the resolution stating that STLL will be responsible for the maintenance and /or replacement of the netting, and authorizing STLL to begin the construction effort immediately. Acting Mayor Turgeon suggested the motion be amended to require the STLL to sign the City's donor policy prior to STLL beginning construction. Without objection from the maker or seconder the motion was amended to require STLL to sign the donor policy before it begins construction. Motion passed 4/0. Discussion moved to Item 10.A on the agenda. 9. ENGINEERING/PUBLIC WORKS A. Drainage Issue — 5570 Harding Lane Administrator Heck stated Robert Michels, the owner of the property located at 5570 Harding Lane, had requested the opportunity to come before Council to discuss the drainage improvements made behind his property as part of the Harding Lane roadway construction project done in 2009. Information gathered by Staff indicates the storm water system, including the storm water drainage pond located behind the 5565 and 5570 Harding Lane properties, was part of the Harding Acres plat. The pond was installed when the original road was constructed. The information provided by WSB and Associates for the project indicates the improvements recommended to the storm water system would be limited to restoring the system to its original 1985 design. The house on the property was constructed in 1989. In response to concerns expressed by the City's building inspector about grading, the City's contract engineer looked at the site in 1991 and informed the City that the grading for the new home had substantially filled in the drainage pond. The owners of the property were given a certificate of occupancy contingent on them providing CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 24, 2010 Page 7 of 18 corrections to the drainage easement. The meeting packet for this meeting includes a chronology of events regarding the Harding Acres Development and the Harding Lane roadway project of 2009. The City had received complaints about the drainage in 2007 and during public discussions about the Harding Lane project. Mr. Michels has been informed the City is willing to reestablish some vegetation in the area. Ro limmer hels, the owner of the rD operty located at 5570 Hardine Lane stated he currently resides in SaCalifornia. He was recalled by the United States Navy in 2007. He is still a legal resident of the Shorewood. He votes as a resident of Shorewood and he pays taxes as a resident of Sh. He has numerous concerns about the storm water system improvements made as part of the Hane roadway construction project. The drainage pond is located on his property and Mr. Baroperty. There were four items he wanted to cover this evening: the property prior to the roaoject versus afterward; safety hazards; adequacy of notice; and properiy value. Prior to the pro lots were very private; there was significant vegetation in the spring, suiruner and fall which provided visual privacy from the trail. He noted Administrator Heck and Engineer Landini have expressed the City's willingness to restore some of the vegetation. He stated the City removed almost 70 dump trucks full of trees and dirt as part of the storm water system improvement part of the project. An outlet to the pond was installed. The outlet is higher, it has a different purpose and it has a different flow capacity than the original weir structure. The new pond is within the property setback, about 8 - 9 steps from his back door. The new pond has never been dry; it's maintained a depth between 2-4 feet. It's been about 85 days since the spring thaw occurred and the ice came off of the pond. City reports had indicated the pond was supposed to be a dry pond. It appears to be a very poorly constructed wet pond. The property is located on a quiet cul -de -sac and children are accustomed to running around the neighborhood. A child can drown in water that is 2-4 feet deep. The house on his property uses well water. The pond is about 25 feet from his well. Given all of the concerns about storm water pollution he has concerns that the City would install a pond that is very likely contaminated so close to a well. Mr. Michels went on to state the City claims it has built a dry pond which should not hold water for an extended period. He cited statements made by Engineer Landini on May 26, 2009, during a Council meeting (as stated in the minutes of that meeting). It's clear to him that Landini intended for the City to build a wet pond or NURP pond without having to go through the requirements of a true wet pond. During that meeting Landini clarified the pond was originally designed as a dry pond and it was never intended to have standing water in it for long periods of time. The pond will be a detention facility where it will hold the water for a certain amount of time. During that same meeting Director Brown explained there is currently a weir structure that in effect does zero detention; the intent is to incorporate a control structure that will detain the storm water. There isn't sufficient room to construct a NURP pond where it would have a permanent pool. It appears the City called it a dry pond but it really wanted a wet pond; the City just didn't want to call it that because it couldn't meet the requirements for building it. He expressed he did not think the new pond is a correct use of the easement. Mr. Michels also stated another concern of his is about lack of notice. He felt the City had been very poor at providing him information about the Harding Lane project. He noted he had specifically asked to be informed. He stated even if the documents had been provided, the work level was minimized in the feasibility study and in the documents and minutes he found. It gave no indication of the storm water system work that was going to be undertaken. Words like maintenance and grading were used. When he became aware of the work in September 2009 he contacted Engineer Landini and Landini used words like brush removal, minimally invasive and repair. Mr. Michels concluded his prepared comments by stating that in the spring of this year his wife and he discussed putting the house on the market. A friend of theirs who is a realtor indicated the pond has substantially degraded from the marketability and value of their property. CITY OF SHO'REWOOD REGULAR COUNCIL MEETING MINUTES May 24, 2010 Page 8 of 18 In response to a comment from Acting Mayor Turgeon, Director Brown explained storm water ponds can either be wet or dry. Councilmember Bailey noted that pictures taken prior to the improvements in 2009 show the old pond was wet. Engineer Landini stated when he visited the site in 2007 there was water in the old pond. He did not think he could comment on the pond afterjust one visit. Director Brown explained the original subdivision documents called for a storm water facility to be installed. This storm water facility is no stranger to city councils or staff. There had been litigation that happened downstream where the City spent a great deal of time looking at the upstream areas, with this area being part of it. During that there was much record generated stating the old pond had been filled to some extent by what appeared to be neighbors dumping grass clippings, sticks and debris and other things into the pond. It did trap water. Councilmember Woodruff stated it's his understanding that the pond was part of the original plat done in 1984/1985. The easement was there for the pond. The pond was in the original design. Director Brown stated that is correct. Woodruff stated the information contained in the meeting packet states that when the house was constructed the certificate of occupancy was issued subject to the property owner bringing the pond into conformance with the pond design in the plat. Administrator Heck stated a letter from Orr Schelen Mayeron and Associates, Inc., (a consulting engineer firm) dated May 31, 1991, indicates the firm agrees that the proposed excavation as shown on the plans will bring the pond volumes back into agreement with what was originally planned by TKDA. Councilmember Woodruff stated based on the information provided it seems that sometime in 1991 the pond conformed to the original design. He asked if the improvements made in 2009 to the pond restored it to the original intent within the original boundaries. Director Brown responded yes. Woodruff stated he thought the outlet structure was changed somewhat. He asked if that change was within the intent of the original design. Brown responded yes. Brown stated part of the confusion about the outlet structure is coming from the difference in the way a standard outlet structure is designed. There has been discussion regarding the top grate of the outlet structure which is actually the emergency overflow. When there is an extremely heavy rainfall and the pond rises and if the bottom inlet to the structure is plugged or the rainfall can't be handled, then the water rises and spills into the top grate. That is not the normal waterline outlet. Woodruff asked if the new pond was designed the way it is supposed to be and it's doing what it's supposed to do. Brown responded that is correct. Administrator Heck stated the meeting packet contains a copy of a diagram (provided by WSB and Associates dated May 25, 2009) that came with a feasibility which shows the pond structure. It indicates the pond structure will be well within the easement area. It also indicates where the outlet structure will be replaced and where the pond will be improved and repaired. All of that stays within the existing outline for the old pond structure. Councilmember Woodruff asked if the deck in the back of home encroaches into the easement area. Director Brown stated according to the survey on file, it appears that is the case. Woodruff asked when the deck was built. Mr. Michels stated the deck was there when he purchased the property. Councilmember Woodruff stated Council and Staff have discussed planting vegetation to act as a buffer, noting the City doesn't have to do that. The City is not required to replace vegetation that has to be removed when it does maintenance of storm water facilities. CITY OFSHOREWOOD REGULAR COUNCIL MEETING MINUTES May 24, 2010 Page 9 of 18 Councilmember Bailey asked if the new pond is designed in essentially the same footprint as the old pond. Director Brown explained it's within the drainage and utility easement. Bailey asked if he tried to visualize the pond in 1989/1990 and then compared that to now would he see essentially the same thing. Engineer Landini explained in 1985 he thought the pond would have been larger based on the documentation in the property file. When the house on 5570 was built the pond was filled in some what. Bailey stated it seems as that the situation is essentially the same. Bailey stated with regard to pollution, he has not heard any concerns regarding pollution of well water in other areas the City has storm water drainage ponds. The City has essentially recreated what was there before, and it was built for a very specific purpose which is to control storm water drainage in the neighborhood. Mr. Michels stated his property and Mr. Bartlett's property are located at the bottom of the hill, and it makes sense that water drains toward the bottom of the hill. There has been a drainage easement around his property since he purchased it and he knew that. The first time he saw the 1985 plat diagram was this past April when Engineer Landini provided it. He knew that he lived at the bottom of the hill and that storm water flowed all around his property. He was okay with that. He questioned if the right thing was done or not. He stated he had been an active member of the community when he resided in Shorewood, and he would have worked with the City if it wanted to do something to the property. Councilmember Zerby stated water flows downhill and it has to go somewhere. The City has to deal with where to put the storm water runoff all over the City. The storm water facility was designed for the water to flow to the designated area. He commented that engineers are focused on building functional things; they may not necessarily be pretty. He stated the City is considering going the extra step by planting vegetation. He commented that things are worse after new construction. He noted he can't find fault with communications from the City about this project after looking at the record. He's isn't sure what else could have been done. IIe stated he is comfortable with the City's actions. Councilmember Woodruff asked Director Nielsen what the City can do about the nonconforming deck. Nielsen stated the deck did not require a building permit. He noted that the file for the property contains a note from the original builder stating there wasn't room for a very narrow deck at the back of the house due to the drainage and utility easement. Nielsen stated Council can require the deck be removed, or it could be allowed to remain there unless it encroaches to the extent that it causes issues. Director Brown recommended that the deck be allowed to remain there provided the property owner is put on notice that the deck is at risk. Acting Mayor Turgeon stated the storm water facility today is basically no different than it was in 1984 when it was permitted by the Watershed District. The problem arose when the house was built; part of the pond was filled in and it had to be restored. The developer who built the house acknowledged there was no room for a deck. The house was built anyway. It's unfortunate that Mr. Michels didn't know the deck encroaches into the easement when he purchased the house. Many Harding Lane residents conveyed their concerns about drainage issues when the Fairway Drive project was done. It appears to her that the retaining wall almost abuts the easement line. Engineer Landini clarified the retaining wall is about twenty feet into the easement. Turgeon expressed her apprehension about planting vegetation as a buffer because she was not sure who would be responsible for maintaining it. Administrator Heck stated when Staff discussed reestablishing vegetation it talked about plants that could be found in a marsh or rainwater garden. He then stated the City would be primarily responsible for maintaining the easement areas and drainage ditches. Councilmember Woodruff stated it's his understanding that if the vegetation is planted in the easement area the City's obligated to maintain the vegetation such that the storm water drainage pond continues to CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 24, 2010 Page 10 of 18 function. Director Brown stated if lack of vegetation or failure of the vegetation causes some sort of erosion issue the City has a responsibility to address that through the Watershed District, Director Brown noted that the Minmehaha Creek Watershed District can assist with identifying plantings for use. Acting Mayor Turgeon stated from her vantage point allowing the encroaching deck to remain is enough of a concession on the part of the City. Woodruff moved, Bailey seconded, directing Staff to develop a vegetation plan and bring it back to Council for consideration, to provide Robert Michels with a notice of encroachment of the deck and that the City will not require the removal of the deck located on the 5570 property, and that the City is not responsible if something happens to the deck. Motion passed 4/0. B. Update on Request for Proposals for Superior Control and Data Acquisition (SCADA) System Design Build Director Brown explained that request for proposals for the Superior Control and Data Acquisition (SCADA) controls were due by May 12, 2010. There are essentially three vendors that specialize in SCADA Systems. The City received proposals from two of those vendors by the deadline. The third vendor had inadvertently placed a due date of three days later on its calendar. One of the proposals submitted does not and cannot meet the full specifications with their equipment. That leaves the City in the position of having one vendor apply. Because this is a design build proposal, the City is not bound by the strict bidding requirements as performed in a construction project. Therefore, Staff invited the third vendor to submit their proposal for consideration. Staff is awaiting receipt of an RFP from the third vendor and will continue on with the proposal evaluation process. Discussion moved to Item 10.B on the agenda 10. GENERAL/NEW BUSINESS A. Phelps Bay Milfoil Treatment This item was discussed after Item 8.1) on the agenda Administrator Heck stated this item had been discussed during the May 10, 2010, City Council meeting and at that time Council voted to continue it to this meeting and to ask Dick Osgood, Executive Director of the Lake Minnetonka Association (LMA) to attend this meeting and to provide additional funding information regarding the treatment of Phelps Bay. fie noted that Mr. Osgood did provide the City with the additional funding information requested. That information was included in the meeting packet for this meeting. The City budgeted $6,000 in 2010 to help fund part of the treatment of Eurasian Watermilfoil Milfoil (Milfoil) and Curly Leaf Pondweed in Lake Minnetonka waters located in Shorewood. Heck then stated Staff recommends Council approve and authorize reimbursement for the treatment costs of Phelps Bay as provided for in the 2010 budget. Councilmember Woodruff stated he will recuse himself from this discussion and any subsequent vote, noting he and his wife own one of 29 residential properties located in the City that front Phelps Bay. He then stated because he is the City's elected official representative to the Lake Minnetonka Conservation District (LMCD) he would be willing to entertain questions from that position. CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 24, 2010 Page 11 of 18 Councilmember Zerby stated he supported authorizing the $6,000 contribution toward the treatment efforts. He expressed he thought the $6,000 amount is a small amount to pay for a portion of this treatment. He noted similar treatments of Milfoil and Curly Leaf Pondweed in the past two years have been successful. He also noted Council had been provided with a copy of a petition from residents expressing their support for the treatment again in 2010. Councilmember Bailey expressed he appreciated Mr. Osgood providing the additional funding information. He found the information to be helpful. He stated the current policy appears to have been to carry unused finding for the treatment of Phelps Bay over to the next year to help fund the next year's treatment. He asked what happens if the carryover funds rise to a level that exceeds some not -yet- determined threshold level. Mr. Osgood explained the most accurate treatment estimates were for the first year of treatment [2010 is the third year of the treatment program]. The 2009 and 2010 treatment estimates were based on the status of Phelps Bay in the fall of 2008 and 2009 respectively; therefore, those estimates have not been as accurate. The policy has been to carry over unused funds from one year to the next. He did not anticipate the 2010 carryover funds to rise to a level of excess in 2010. That type of situation did occur with the Grays Bay treatment efforts in 2010 and excess funds were refunded to private parties who contributed to the treatments. A small amount was carried over to 2011. The granting agencies, including the cities, have generally had a flat sum approach. The private properties have negotiated their contribution among themselves. He thought that could be changed in the future. Councilmember Bailey stated from his vantage point it's highly unusual for the City to donate money to a private organization [the LMA] when there is some unstated arrangement of how the money is to be spent and how surpluses or deficits are to be handled. He clarified he would be asking the same type of questions of any other organization if a similar thing was occurring. He thought it appropriate to ask these types of questions in advance rather than make them up as things move along. Mr. Osgood stated he did not take issue with Councilmember Bailey's questions or comments. Osgood explained the LMA does have a policy for carrying forward unused funds and segregating funds for the treatment of the three bays. The LMCD's award for 2010, which was done through its Save - the -Lake Fund, was a maximum of $10,000 per bay or 25 percent of the actual treatment cost which ever was less. Councilmember Bailey asked Councilmember Woodruff, in his role as a representative to the LMCD, how the LMCD was handling this issue. Woodruff explained it was handled the way Mr. Osgood explained it was. Woodruff stated the LMC'D's $7,070 award was the 25 percent amount. Councilmember Bailey stated the cost fluctuates from year to year; therefore, he thought the City's portion of the cost should also fluctuate. He noted he had no intention of quibbling about $1,000 here or there. He explained his discomfort is with the fact that the arrangements are unstated. He requested the arrangements be written down for the next few years. Mr. Osgood replied he thought that would be highly appropriate and he would be happy to work with Council in advance of next year's treatment. Councilmember Bailey stated he had no issue with a $6,000 contribution for 2010. Acting Mayor Turgeon expressed concern that approximately $16,800 is projected to be carried over to 2011 for the treatment of Phelps Bay. The 2010 treatment cost to date was approximately $28,000. From her vantage point Council had agreed to do this for one year. Council had wanted to know who else was partnering on this program. She commented there are no new partners. She stated the 2010 treatment cost is less than one -half of the 2009 treatment cost yet the City is still being asked to contribute the same CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 24, 2010 Page 12 of 18 amount of money. She expressed she is not willing to contribute $6,000 toward the 2010 treatment effort in part because of the project $17,000 carry over amount. She would be willing to contribute $3,000. Mr. Osgood noted that he has provided a recap of the financials relating to the treatment of Phelps Bay at the end of the past two years. He sated a portion of the $16,818 in net funds remaining may be needed to do additional treatments in 2010. The reason the 2010 treatment costs to date for Phelps Bay are so low is that significantly less acreage has been treated so far in 2010 than what was projected in the fall of 2009 to be treated. Those untreated areas may have to be treated yet this year. Acting Mayor Turgeon stated the reduction in Milfoil appears, to her, to allow for an increase in Curly Leaf Pondweed, and it's her understanding that the more both of the invasive species are treated the more natural plant life is reduced. Zerby moved, Bailey seconded, authorizing the release of $6,000 for the for the herbicide treatment of Eurasian Watermilfoil and Curly Leaf Pondweed in Phelps Bay in 2010. Councilmember Bailey stated he thought the process for managing the funds was unsubstantiated. He clarified he was not implying that there was something "fishy" going on. He noted that only two organizations are going to make the same level of contribution in 2010 as they did in 2008 toward the treatment of Phelps Bay. They are the Department of Natural Resources (DNR) and Shorewood. He questioned why those two organizations are not being prorated as some of the others are. He stated he thought Shorewood benefited from the program and that is why he can support a $6,000 contribution. He commented that the math isn't working out to the benefit of the Shorewood taxpayers. Mr. Osgood explained Shorewood, and some other cities, responded to the request by some of its residents. During 2008 Council made a decision to contribute $6,000 toward the 2008 effort and that is the basis for the 2010 request. He then explained the rules are changing for the program from year to year. The DNR is the permitting agency and it's placing conditions on the treatment effort making it somewhat of a moving target. That makes it difficult to anticipate what will be permitted in 2011. The three -bay demonstration treatment program is a challenging project. It's hoped that one of the things that will come out of this project is the viability of the funding model for this project. Another is the ability to mitigate the Milfoil and Curly Leaf Pondweed invasion. Councilmember Zerby stated that he agreed with Councilmember Bailey's comments which lie thought were articulated very well. He commented he thought the demonstration project was a learning process. Councilmember Bailey suggested Mr. Osgood and the Council discuss the agreements and funding for 2011 no later than December 2010 or January 2011. Mr. Osgood stated he suggested to the City of Mound that it would behoove the Cities of Minnetrista, Mound and Shorewood to meet this summer to discuss some of these things. Motion passed 2/1/1 with Turgeon dissenting and Woodruff recusing. Discussion returned to Item 9.A on the agenda. B. Southshore Community Center Administrator Heck stated the Southshore Community Center (the Center) Operating Committee has met a few times recently. The members of that Committee are Councilmembers Woodruff and Zerby, the CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 24, 2010 Page 13 of 18 Center's Operations Manager Kristi Anderson (with Community Rec Resources) and him. The Committee discussed the amount of time CRR has been spending on Center operations and maintenance as well as concerns about the lack of incentive pay for events not associated with rental income that require CRR's time. The Committee recommends implementing the increases called for in the agreement with CRR on July 1, 2010, rather than waiting until January 1, 2011. The Committee recommends increasing the base pay for the contract to $15,000 from $10,000 and the incentive pay to 20 percent of rental fees from 15 percent of rental fees. The Committee also recommends including community events where rent is not collected in the incentive pay, and allowing the assistant to work up to 13 hours pre week. Heck then stated Staff recommends Council approve the changes to the agreement as recommended by the Center's Operating Committee. Councilmember Woodruff stated Ms. Anderson has done a great deal of work at the Center. He thought things were proceeding to financial stability with the Center more rapidly than he had anticipated. He stated the City has received numerous good reports about how the Center is being managed. lie thought the Center is requiring a lot more work than either the City or Ms. Anderson had anticipated. He conveyed he thought it is appropriate to renegotiate the contract with CRR at this time in good faith. The renegotiation is in recognition of the extra work that goes into managing the Center and for the community events that were never considered when the contracted was negotiated. Councilmember Bailey stated he wanted some assurance that this would not create a significant additional deficit for the City. Ms. Anderson is largely responsible for expediting the goal of achieving financial stability for the Center. But, he did not want this to result in a significant deterioration in the financial condition that the City would have to fund. Councilmember Woodruff stated there will be more cost in the second half of 2010 than what was anticipated, but the size of it will be relatively small. The increase in the base cost for the second half of 2010 will be $2,500 and the additional incentive pay is projected to be approximately the same. This may result in the financial stability being achieved over a longer period of time. But, the contractor will likely be a lot happier about spending time doing this job. Administrator Heck stated he has met with staff and he doesn't think it's feasible to have a staff member spend time over at the Center. Staff can help prepare some of the reports. Acting Mayor Turgeon stated the City has a 3 -year contract with CRR for providing services at the Center. She commented that sometimes a contractor enters into a bad contract and the contractor just has to live with that; she's done that herself From her vantage point she thought renegotiating the contract at this time is premature. She did not think the other four cities would view the raise in a positive way. She did not think there is enough information available to justify the increases at this time. She commented the expenses for the Center are still exceeding revenues. She indicated she would be more than willing to discuss this if there was a year's worth of history; there is only nine months of history to date. Councilmember Woodruff clarified the contract with CRR went into effect on July 1, 2009. Therefore, there is almost 1 I months worth of history. Acting Mayor Turgeon questioned why this can't be discussed as part of the 2011 budget process. Councilmember Woodruff stated the changes will have a minor impact on the 2011 budget. CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 24, 2010 Page 14 of 18 Councilmember Zerby stated he thought this was a very unique situation. He expressed he thought the City was very fortunate to have Ms. Anderson working for the City on this. He stated he thought the increases were a small way of moving forward with Ms. Anderson and making this a successful project. He commented Council never thought the Center's operation would be a revenue generator. In fact, Council hoped it would become a break even operation. Acting Mayor Turgeon stated the increases would be implemented six months ahead of schedule. She noted that staff did not get a raise in 2010. She stated it's unfortunate that people didn't think this contract through. She commented that as a contractor you sometimes enter into a bad contract but you just have to "suck it up ". Councilmember Bailey stated he was supportive of this proposal. He thought recalibration of the contract can take place before the end of the year. He does not think staff pay is relative to this discussion. He's confidant the Operating Committee is keeping abreast of the situation. He thought authorizing these increases demonstrates the City is committed to making the Center work. He suggested the City appeal to the other four cities for financial support. Bailey moved, Zerby seconded, approving an increase in the base pay for the contract to $15,000 from $10,000, an increase in the incentive pay to 20 percent of rental fees from 15 percent of rental fees, including community events where rent is not collected in the incentive pay, and allowing the assistant to work up to 13 hours per week. Motion passed 3/1 with Turgeon dissenting. Councilmember Woodruff stated there is a meeting scheduled for the Operating Committee and the Southshore Senior Partners to discuss what has been happening over the last year. Director Nielsen requested Item I O.F be discussed immediately after the recess being the applicant is on attendance. Acting Mayor Turgeon recessed the meeting at 8:58 P.M. Acting Mayor Turgeon reconvened the meeting at 9:02 P.M. Discussion moved to Item 101 on the agenda. C. Park Commission Ordinance This was discussed after Item I O,F on the agenda. Administrator Heck stated during its April 24, 2010, meeting Council approved an ordinance amending the section of the Shorewood City Code governing the Planning Commission. Council then passed a motion directing Staff to review and propose amendments to the section governing the Park Commission so that it conforms with the language in the Planning Commission section. The Park Commission reviewed the proposed amendments and recommends Council adopt the amendments as presented. Woodruff moved, Zerby seconded, Approving ORDINANCE NO. 468 "An Ordinance Amending Chapter 202 (Park Commission) of the Shorewood City Code as included in the meeting packet for this meeting. Motion passed 4/0. D. Deer Management Policy CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 24, 2010 Page 15 of 18 Director Nielsen explained that during the Council's March 22, 2010, meeting Staff reported to Council that the outcome of the annual aerial deer survey conducted under the guidance of the Three Rivers Park District indicated deer counts were up in the City after the year long suspension of the deer management program. Staff is continuing its work on preparing a policy statement relative to deer management per Council's direction. The draft policy will likely be presented to Council within the next 30 days. During that meeting Council also directed Staff to contact Metro Bowhunters Resources Base to arrange a deer removal program for 2010. The meeting packet for this meeting contains a copy of 2010 Hunt Rules. The Rules suggest the following dates for the 2010 program. The dates are: September 25 — 26; October 9 — 10; October 23 — 24; and November 13 — 14. With the exception of the dates, the Rules are basically the same as in previous years. Woodruff moved, Bailey seconded, approving the suggested deer removal dates and hunt rules with the proviso that this does not approve the actual hunt until Council has been provided a plan. Motion passed 410. E. Park Commission Appointment Acting Mayor Turgeon stated that just prior to this meeting Council interviewed three candidates for consideration of appointment to the Park Commission. Bailey moved, Woodruff seconded, Adopting RESOLUTION NO. 10 -027 "A Resolution Making the Appointment of Nicholas Swaggert to the Park Commission effective May 24, 2010, through February 28, 2013." Councilmember Zerby noted he thought all three candidates interviewed were excellent candidates. He stated there are frequent openings on the City's Park and Planning Commissions and he asked the two candidates that aren't selected this evening to keep in contact with the City when there are published openings. Motion passed 31011 with Zerby abstaining. Discussion moved to item 10.G on the agenda F. Incidental Use of Right -of- -Way Permit Applicant: Carol Koehnen Location: 26020 Valleywood Lane This item was discussed after item 10.13 on the agenda. Director Nielsen explained Carol Koehnen owns the properties located at 26020 and 26030 Valleywood Lane. There is a house on the 26020 property; there is not one on the other property. The two properties abut an underdeveloped segment of Valleywood Lane. The city street stops at Valleywood Circle. An existing private driveway serves Ms. Koehnen's two lots and the lot located at 26050 Valleywood Lane. Ms. Koehnen has been asked to confirm that the 26030 lot, which she is trying to market, is a buildable lot. The common driveway does not comply with current Fire Code fire access requirements. In order to build on the vacant lot Ms. Koehnen must widen the existing driveway that lies within the Valleywood Lane right -of -way to 20 feet and provide a fire department approved turnaround. The proposed work complies with Fire Code requirements. It requires an incidental use of the right -of -way permit from the City to use public right -of -way for a private purpose. It's not anticipated that the trees that edge the right- CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 24, 2010 Page 16 of 18 of -way will be removed for the widening. To make sure trees are not damaged the applicant will be required to install tree- protection fencing prior to beginning any work. Nielsen stated Staff recommends approval of the permit subject to the applicant entering into the encroachment agreement and recording it against the subject properties. Bailey moved, Woodruff seconded, approving the Incidental Use of the Right -of -Way Permit for Carol Koehnen subject to the applicant entering into the encroachment agreement and recording it against the subject properties and installing tree- protection fencing prior to beginning any construction. Motion passed 4/0. Discussion moved to Item O.0 on the agenda. G. Personnel Action — Accept the Resignation of the Finance Director and Authorize Recruitment of Finance Manager /Analyst This item was discussed after Item 10.E on the agenda. This item was removed from the consent agenda at Councilmember Bailey's request Councilmember Bailey extended his best wishes to Finance Director Bonnie Burton, whose last day at City Hall is May 28, 2010. Bailey stated he wanted to have a brief discussion about a successor. He asked Administrator Heck to highlight his recommendation. Administrator Heck stated he recommends the finance director position be replaced with a finance manager / finance analyst position. I-Ie thought the City will need the skills of someone who can do some long -range financial forecasting and financial planning. He stated he has no intention of continuing with the current structure; that will not happen. The City needs someone with experience in detailed analysis. Councilmember Bailey stated the way Administrator fleck has described the replacement position it appears as if the position has been down graded. Administrator Heck responded that is correct. Bailey stated it's his understanding that Heck has indicated that he is going to assume responsibility for some of the more strategic aspects of the current position. Bailey then stated he wanted to exercise some caution before going down that path. Having the city administrator position assume the strategic financial responsibilities may work out well for Heck. It may be better for the City to have a stronger person in the financial position should Heck leave the City. Bailey expressed he did not think the replacement approach for Finance Director Burton has been discussed thoroughly enough. Although he doesn't want to delay replacing Director Burton, he does not want to move forward with the approach recommended by Heck until Council has discussed the appropriateness of the city administrator position assuming some of the current finance director position's role. Administrator Heck explained he intended to be more hands on during the budgeting process with assistance from the department heads and others. Councilmember Woodruff stated he agrees with Councilmember Bailey's perspective. He suggested Councilmember Bailey and Administrator Heck work on creating a job description for the downsized position. Councilmember Zerby expressed concern that the city administrator's position will end up being modified as well. That is a broader discussion. CITY OFSHOREWOOD REGULAR COUNCIL MEETING MINUTES May 24, 2010 Page 17 of 18 Councilmember Bailey stated he would be willing to provide his input to Administrator Heck on the job description, but he thought it prudent for the entire Council to participate in this type of discussion. There was consensus to discuss this item and the employee compensation policy during a work session that will be scheduled for June 7, 2010. Woodruff moved, Bailey seconded, accepting the resignation of Finance Director Bonnie Burton. Motion passed 4/0. Councilmember Zerby stated he accepted the resignation with sadness. Acting Mayor Turgeon stated there was no enthusiasm in any of the ayes accepting the resignation. 11. STAFF AND COUNCIL REPORTS After discussion a decision was made to have Councilmember Woodruff be next to test the electronic use of the meeting packet. Administrator Heck stated the City -owned house has been leased since the spring of 2009. The term of the lease is two years. Things are going well with the renters. A. Administrator and Staff 1. Financial Report —April 2010 Director Burton stated Council had been provided with a copy of the April 2010 financial report. She summarized the report. General Fund year -to -date revenues of $148,420 are slightly lagging the same period last year. Building permit revenues continue to trend upward slightly over last year, but fine revenue and miscellaneous revenue lag somewhat. The total General Fund expenditures are less than expected at 27.55 percent of budget when compared to one -third of the year completed. The year -to -date General Fund expenditures are at $1.332 million compared to $1.374 million at the same time last year. Professional Services expenditures are slightly higher than expected due to a payment of 50% of the County Assessor's annual fee ($47,000). Snow and Ice expenditures are at 65% of budget. The Excelsior Fire District is paid through June as is the South Lake Minnetonka Police Department. The Enterprise Operating Funds show they are tracking on target. Year - to-date capital improvement activity has been minimal. The Water Fund has paid some semi - annual debt service payments. The Southshore Community Center revenues and expenditures are slightly higher than anticipated with expenditures continuing to out- pace revenues slightly. Councilmember Bailey stated the General Fund expenditures are approximately $40,000 less than budget. He asked if that should be booked to the end of the year. Director Burton explained the expenditures appear to be less across the board. Burton then stated it would be great if this could be maintained. B. Mayor and City Council Councilmember Zerby stated he attended a Minnehaha Creed Watershed District (MCWD) meeting on May 20` MCWD's Rule F has been renamed to the Shoreline and Streambank Stabilization Rule and Rule D has been renamed to Wetland Protection Rule. He stated he would leave his copy of the revised Rules at City Hall. A public hearing about the two Rules has been scheduled for July 8 He has asked Mr. James Wisker to respond directly to the letter jointly submitted by the cities neighboring Lake CITY OF SHOREWOOD REGULAR COUNCIL MEETING MINUTES May 24, 2010 Page 18 of 18 Minnetonka requesting changes to the Rules. He stated some of the language has been softened. For example, the Wetland Protection Rule is triggered if a house is replaced with a larger house on a residential property thereby increasing the hardcover. He plans to forward the revised language to Council once he receives it. Councilmember Bailey stated the Excelsior Fire District (EFD) Board is progressing well with the 2011 EFD Operating Budget and Capital Improvement Program Budget. He expressed he thought FED Chief Gerber is doing another admirable job of presenting information. The last 2011 Operating Budget discussed reflects a 1.6 percent increase over the adopted 2009 Operating Budget. The 2010 Operating Budget included a significant mandatory relief contribution which skews things. The Board believes a 1.6 percent increase over a two -year period is very reasonable. Bailey moved, Zerby seconded, recessing the meeting to an executive session at 9:27 P.M. Motion passed 410. 12. RECESS TO EXECUTIVE SESSION A. Update on Ron Johnson Litigation Acting Mayor Turgeon began the Executive Session at 9:30 P.M. Acting Mayor Turgeon, Councilmembers Bailey, Woodruff and Zerby, Attorney Tietjen and Administrator Heck were present. The purpose of the meeting was for confidential attorney - client discussion regarding the pending litigation regarding Ron Johnson's property. The litigation began in the 1990s, Woodruff moved, Zerby seconded, Adjourning the City Council Executive Session at 9:38 P.M. 13. RECONVENE REGULAR MEETING The City Council reconvened the regular meeting at 9:38 P.M. 14. ADJOURN Woodruff moved, Zerby seconded, Adjourning the City Council Regular Meeting of May 24, 2010, at 9:38 P.M Motion passed 4/0. RESPECTFULLY SUBMITTED Christine Freeman, Recorder ATTEST: Christine Liz6e, Mayor Administrator /Clerk