Loading...
2003-12-02 City Council minutesPage No. 1 December 2, 2003 CITY OF MENDOTA HEIGHTS DAKOTA COUNTY STATE OF MINNESOTA Minutes of the Regular Meeting Held Tuesday, December 2, 2003 Pursuant to due call and notice thereof, the regular meeting of the City Council, City of Mendota Heights, Minnesota was held at 7:30 o'clock p.m. at City Hall, 1101 Victoria Curve, Mendota Heights, Minnesota. CALL TO ORDER Mayor Huber called the meeting to order at 7:30 p.m. The following members were present: Mayor Huber, Councilmembers Duggan, Schneeman and Vitelli. Councilmember Krebsbach had notified Council that she would be late. PLEDGE OF ALLEGIANCE The City Council, audience and staff recited the Pledge of Allegiance. AGENDA ADOPTION Councilmember Duggan moved adoption of the revised agenda for the meeting. Councilmember Vitelli seconded the motion. Ayes: 4 Nays: 0 CONSENT CALENDAR Councilmember Duggan moved approval of the consent calendar for the meeting, revised to move items 6e, prosecution services agreement, 6f, CDBG agreement, and 6h, Town Center minor PUD amendment, to the regular agenda, along with authorization for execution of any necessary documents contained therein. a. Acknowledgment of the minutes of the November 13, 2003 Parks and Recreation Commission meeting. b. Acknowledgment of the minutes of the November 25, 2003 Planning Commission meeting. c. Acknowledgment of cancellation of the December Parks and Recreation Commission meeting. d. Acknowledgment of cancellation of the December Planning Commission meeting Page No. 2 December 2, 2003 e. Approval of an agreement with Dakota County for Revocation of County Road 45 (Victoria Road tumback, Lexington Avenue to T.H. 13). f. Adoption of Resolution No. 03 -116, "A RESOLUTION AUTHORIZING MENDOTA HEIGHTS TO ENTER INTO AN AGREEMENT WITH THE DAKOTA COUNTY MUTUAL AID ASSISTANCE GROUP." g. Adoption of Resolution No. 03 -117, "RESOLUTION CERTIFYING DELINQUENT UTIITY CHARGES TO THE DAKOTA COUNTY AUDITOR FOR COLLECTION WITH REAL ESTATE TAXES," and Resolution No. 118, "RESOLUTION CERTIFYING UNPAID WEED CUTTING CHARGES." h. Approval of the list of contractor licenses dated December 2, 2003. i. Approval of the List of Claims dated December 2, 2003 and totaling $69,513.46. Councilmember Schneeman seconded the motion. Ayes: 4 Nays: 0 PROSECUTION SERVICES Council acknowledged a memo from Administrator Danielson regarding authorization to enter into a professional service agreement with Grannis and Hauge for prosecution services. Councilmember Duggan asked whether Council needs to consider adding a clause that says if there are anticipated increase to the city, the city would like to know that by September. If Grannis and Hauge say that they are going to increase their fees by 15 %, that may not be acceptable the city would need time to take bids. Councilmember Vitelli moved to authorize execution of the professional service agreement with Grannis and Hauge, amended to add a clause regarding notification of anticipated increases by September. Councilmember Schneeman seconded the motion. Ayes: 4 Nays: 0 i Page No. 3 December 2, 2003 CDBG AGREEMENT Council acknowledged a memo from Assistant Hollister regarding the Dakota County CDBG Entitlement Program Cooperation Agreement for FY02 -04. Councilmember Duggan stated that page four of the agreement discusses the parties agreeing that the city has a policy prohibiting the excessive use of force in non - violent civil rights demonstrations. He asked if the city has such a policy. Police Chief Aschenbrener responded that the department has a policy that covers all use of force on any citizens whether during a protest or anything. Councilmember Duggan moved to approve the Cooperation Agreement for the Dakota County Community Development Block Grant Program along with authorization for its execution by the appropriate city officials. Councilmember Vitelli seconded the motion. Ayes: 4 Nays: 0 TOWN CENTER PUD Council acknowledged a memo from Assistant Hollister AMENDMENT regarding a request from Mr. Ross Feffercorn for a minor amendment to the PUD for Town Center to allow a temporary office/ Teasing sign. Mr. Feffercorn was present for the discussion. Councilmember Schneeman stated that she has no problem with the sign but would like an update on what is happening at Town Center. Mr. Feffercom responded that he has hired the Welsh Companies for both commercial and retail leasing. He is also working with the Dorn Company on the residential properties. He stated that he has submitted plans for the townhouses and is working with the city attorney on closing on part of the property. He has entered into a purchase agreement on for one townhouse and is in the last phase of pricing for the loft condominiums. He hopes to begin construction on the townhouses this year and is working with Gateway Bank on a bank site and hopes to be back on December 16 to review the bank architecture and ask for Council's approval. He is working with a couple of restaurant groups and will soon do design drawings on the commercial component. He is also working with Damon Farber to fmalize the landscaping improvements for the public outlots. The home owner association documents are completed, as are the documents for the commercial association. Page No. 4 December 2, 2003 Councilmember Schneeman moved adoption of Resolution No. 03- 116, "A RESOLUTION APPROVING A MINOR AMENDMENT TO THE PLANNED UNIT DEVELOPMENT FOR A DEVELOPMENT PROJECT," along with authorization for the Code Enforcement Officers to issue the necessary permit for a temporary sign for Town Center. Councilmember Vitelli seconded the motion. Ayes: 4 Nays: 0 PUBLIC COMMENTS Mayor Huber stated that during the past week he received a letter from Shawn Smith encouraging the city to recycle more, a letter from Alexandra Alair and Elizabeth Engelrud regarding the timing and sequencing of the stop lights at Mendota Heights Road and Dodd Road going into Visitation, and a letter from Anne Connolly regarding speeding on Victoria Curve and along T.H. 110. Ms. Connolly is requesting stop signs at Hunter Lane and at Glenhill Road. He stated that he will pass those letters on to the appropriate staff members for review and comment. He informed the audience that the police department will also review the intersection of Marie and Victoria with respect to making the intersection a four -way stop now that Victoria has been turned back to the city. With respect to the letter of concern over speeding, he stated that he thinks that some times where people tend to speed the most is in the area with which they are the most familiar and they are not as cautious as they should be in their own neighborhoods. He encouraged residents to observe speed limits and drive carefully, especially in their own neighborhoods. Councilmember Duggan stated that he has received a complaint from Mr. Dave Palme about junk cars at a property on Wagon Wheel Trail, and further stated that he will pass the complaint on to the police department. He invited people to call the city if they have a concern about ordinance violations. HEARING — 2004 LEVY AND Mayor Huber opened the meeting for the purpose of a public hearing BUDGET on the proposed 2004 levy and budget. Finance Director Schabacker gave a brief overview of the proposed budget and final levy, stating that staff began working on the budget in July and faced the challenge of the loss of $13,300 in LGA and $201,000 in reduced market value homestead credit revenue. She stated that even though the levy did increase 3.9 %, the tax capacity t, Page No. 5 December 2, 2003 rate for the city went down from 28.933 to 27.025, which means that even though the levy increased, the city's tax capacity that the increase is spread over grew at a greater rate. Mayor Huber stated that his taxes for the city will go up quite a bit, but his house value increased by 11 %. Councilmember Vitelli stated that he thinks the residents should know the top quality staff the city has. The 2004 actually decreased a slight amount, and Council did not have to struggle with staff to get to that point. Staff came forward with the budget. The staff of all departments came forward with budgets that were very well thought out and very considerate of the residents who pay taxes. He complimented the staff and their leadership. Mayor Huber asked for questions and comments from the audience. There being no questions or comments, Councilmember Duggan moved to close the hearing and, further, moved adoption of Resolution No. 03 -120, "RESOLUTION APPROVING FINAL 2003 TAX LEVY COLLECTIBLE IN 2004 AND ADOPTING PROPOSED BUDGET FOR 2004." Councilmember Vitelli seconded the motion. Ayes: 4 Nays: 0 AED DONATIONS Council acknowledged a memo from Police Chief Aschenbrener recognizing several individuals for their civic mindedness in donating automatic external defibrillators to the city. Chief Aschenbrener stated that just after the beginning of the year, Mrs. Martha Muska came in and said she had been in contact with the city during the past year and wanted to donate an AED. Since that time, Mr. Richard Bjorklund, Mr. Sam Shiffinan, and Drs. Shirley and Ernest Hinson have also contributed an AED to the city. On behalf of the city, Chief Aschenbrener and Mayor Huber presented certificates of appreciation to Mr. Bjorklund, Mr. Shiffinan and Dr. Hinson. Mrs. Muska was not able to be present. Chief Aschenbrener expressed appreciation to each of the donors on behalf of the city's residents. He stated that the police officers are now in training with the units and they will be in service soon. Mr. Bjorklund stated that he had seen an article in the local press that the city needed defibrillators. He stated that his wife became ill Page No. 6 December 2, 2003 recently and needed defibrillation, and he made a 911 call. The police responded in two to three minutes, and Health East responded about two minutes later. He stated that he was pleased to be able to donate a unit. PAD PRESENTATION Council acknowledged a memo from Police Chief Aschenbrener and Fire Chief Maczko regarding a presentation on how AED units work and on the PAD (public access to defibrillators) program. Mr. John Dillon, Coordinator for Healtheast, and Firefighter John Lapakko were present for the presentation. Chief Maczko stated that AED's have come a long way over the years. He informed Council and the audience that police, fire and EMS personnel are endorsing the PAD program. He stated that eventually the devices will be as available in public places as fire extinguishers. Mr. Dillon and Firefighter Lapakko, with the assistance of Councilmember Duggan, gave a demonstration on how to use an AED. Mr. Dillon stated that Health East applied for a grant from Medtronics a year ago and was given a grant to bring defibrillators out in the public. He stated that 30% of all cardiac arrests occur at work and other public places, and no one can control how long it takes for emergency services to get to people. The goal is to get AED's into schools and churches and any pubic places where people gather. He would like to create a committee of police and fire personnel and others in Mendota Heights to serve as a resource to people. St. Thomas Academy has purchased four defibrillators, including one to travel with its sports teams. Councilmember Duggan encouraged anyone who owns a business, especially a business has senior citizens as clients, to contact the city for more information. Responding to a questions, Mr. Dillon stated that the cost for an AED and alarm cabinet is about $2,100. Councilmember Krebsbach arrived at 8:17 p.m. CITIZEN'S AWARD OF MERIT Council acknowledged a memo from Police Chief Aschenbrener regarding recognizing Ms. Allison Greshowak for an outstanding action. On behalf of the city, Chief Aschenbrener presented Ms. Greshowak with a Citizen's Award of Merit. He informed Council and the audience that on September 27, Ms. Greshowak stopped her vehicle Page No. 7 December 2, 2003 to check on a man who had crashed his riding mower and was not moving. She found him unconscious and called 911 and then opened his airway and stabilized his head until Officers Convery and Patrick arrived. The gentleman who was involved in the incident stated that Ms. Greshowak is a very nice young lady and he would not be alive today if it were not for her. CASE NO. 03 -59, AUNE Council acknowledged an application from Mr. Timothy Anne for a wetlands permit for a four foot high fence at 554 Foxwood Lane. Council also acknowledged associated staff reports. Assistant Hollister stated that Mr. Aune is building a new home, and as part of the new home construction he would like to build a four foot high chain link fence. The fence would be within the wetland buffer. He stated that the city planner recommended approval of the application, as did the Planning Commission. Mr. Aune stated that he has two black labs and a thirteen month old child who just learned to walk, and the fence will provide containment for his child and the dogs. Responding to a question from Councilmember Krebsbach, he stated that the fence will be in the back yard and there will be no fence in the front yard. He then reviewed his landscaping plan. Responding to a question from Councilmember Duggan, he showed photos of the area where the fence would be located and where the vegetation currently exists. Councilmember Vitelli moved adoption of Resolution No. 03 -121, "A RESOLUTION APPROVING A WETLANDS PERMIT FOR A FOUR FOOT HIGH FENCE AT 554 FOXWOOD LANE." Councilmember Schneeman seconded the motion. Mr. Mike Bader, 1673 Delaware, stated that he appeared before Council last summer for a subdivision. He then distributed a letter objecting to the proposed permit, stating that he was not able to attend the Planning Commission meeting. He stated that Mr. Aune owns Lot 2 and he owns Lot 3, the ten acres south of Mr. Aune. He stated that there is a no cut zone in the restrictive covenants, although he is not present to argue about enforcement of the covenants. He stated that Mr. Aune has stated that he is not violating anything, but there is a scenic easement to the city that benefits the city in case it needs to do any work. Construction of any permanent or temporary structures is not allowed within the easement area. He stated that if Council denied his access in a proposed subdivision because of the no -cut zone, Council should deny Mr. Aune's request. Page No. 8 December 2, 2003 Councilmember Krebsbach asked Mr. Bader if he feels the fence i violates the no -cut zone. Mr. Bader responded that Mr. Aune argued that his proposed road was in violation of the no cut zone. It is clear that Mr. Aune would need a variance for the fence, and if the city is going to be consistent, Mr. Aune's application should be denied. Responding to a question from Mayor Huber, Attorney Schleck stated that Mr. Bader's comments just arose tonight and he would like to take a look at the matter. He suggested tabling discussion to December 16. Mr. Aune stated that with the approaching winter weather he would like to get the fence up as soon as possible. He showed a plot plan delineating the drainage easement that was granted to the city, and stated that it corresponds exactly to the no cut zone and restricted area. The fence crosses that in a very small area. The covenants say that people can do managed pruning. In September he met with the two neighbors just next to him and they approved of his plan. He stated that his contractor is coming to install the fence on December 15 and if the matter gets tabled and there is a cold spell, he will not (' be able to get the fence up this winter. Mayor Huber responded that the city attorney would like to have an opportunity to case before Council makes a decision. Mr. Aune asked for a temporary permit, if possible, if Council is going to table the matter. Councilmember Vitelli asked about the legal status of the document that Mr. Bader referred to. Attorney Schleck responded that he believes it would be a description of the recorded scenic easement for Foxwood that was granted to the city. Councilmember Schneeman withdrew her second to the motion. Councilmember Vitelli withdrew the motion. Councilmember Vitelli moved that the matter be tabled to December 16, along with direction to the City Attorney to review the matter and prepare a report for Council's consideration. Page No. 9 December 2, 2003 Councilmember Duggan seconded the motion. 1 Ayes:5 Nays: 0 CASE NO. 03 -60, RABUSE Council acknowledged an application from Mr. Dwight Rabuse for a one foot side yard setback variance for a home addition at 2230 Bent Tree Lane. Council also acknowledged associated staff. Assistant Hollister reviewed the application and the Planning Commission recommendation. He stated that Mr. Rabuse only needs a variance of eleven inches, but the city categorizes that at one foot. He showed Council a site plan of the lot and stated that Mr. Rabuse is not the original owner and lived in the home for several years thinking that the house was parallel to the lot line, but it is not. Adding onto the house in a direction that is parallel to the lot line requires a variance. The Planning Commission found a hardship in the odd position of the house in relation to the lot line. Mr. Rabuse has spoken to his neighbor about shifting the lot line and it was determined that the neighbor's home is up against the ten foot setback, so that is not possible. He stated that Councilmember Duggan asked him whether the lot line could be adjusted. By looking at the surveys of the two lots, there might be the possibility of a micro - adjustment that might comply with the ten foot setback for each home, but it would be only slight and adjusting the lot lines would be costly. The Planning Commission found sufficient hardship without adjusting the lot line. Councilmember Duggan stated that he has spoken to Mr. Rabuse and asked him to bring in measurements showing the distance between the front and rear corners of his home and the front and rear corners of his neighbor's home. He stated that he did not want Mr. Rabuse to go to the cost of a survey to show what the difference was. He stated that Mr. Rabuse inherited a situation that he had no control over and the variance is about as diminimus as a variance can get. Councilmember Krebsbach asked if there could be a situation this would cause a problem for a future home owner. Assistant Hollister responded that a variance runs with the land and if Council grants the variance for the addition, that variance extends forever and the property is not a non - conforming property. He stated that he does not anticipate any future problems. Responding to a question from Councilmember Krebsbach, Assistant Hollister stated that Mr. Rabuse is proposing the continuation of the line of his house, so the variance would not exceed twelve inches. Page No. 10 December 2, 2003 Councilmember Vitelli moved adoption of Resolution No. 03 -, "A RESOLUTION APPROVING A ONE -FOOT SIDE YARD SETBACK VARIANCE FOR A HOME ADDITION AT 2230 BENT TREE LANE." Councilmember Schneeman seconded the motion. Ayes: 5 Nays: 0 CASE NO. 03 -61, LANGEVIN Council acknowledged an application from Mr. David Langevin for a 10 foot front yard setback variance and four foot sideyard setback variance for a garage addition at 1090 West Circle Court. Council also acknowledged associated staff reports. Assistant Hollister reviewed the application, stated that with a ten foot variance, the addition would be 20 feet from the city right -of- way in the front yard, and a four foot sideyard setback variance would place the addition six feet from the side lot line. Because of grade and angles, Mr. Langevin claims that even though he has a two car attached garage, functionally he has a one car garage because it is so difficult to get a second car into it. The Planning Commission agreed it is a hardship. Councilmember Vitelli moved adoption of Resolution No. 03 -, "A RESOLUTION APPROVING A 10 -FOOT FRONT YARD SETBACK VARIANCE AND A 4 -FOOT SIDE YARD SETBACK VARIANCE FOR A GARAGE ADDITION AT 1090 WEST CIRCLE COURT." Councilmember Duggan seconded the motion. Ayes: 5 Nays: 0 CASE NO. 03-62, BERG Council acknowledged an application from Mr. Richard Berg for a 50 foot front yard setback variance for a five foot high fence at 645 Hidden Creek Trail. Council also acknowledged associated staff reports. Assistant Hollister briefly reviewed the request, stating that Mr. Berg hired an architect to design and install decorative gates along the city right -of -way. The gates are seven feet long and three feet high at one end and five feet at the other end. The city planner interpreted the design as constituting a fence, which meant that it must be placed back 50 feet, and Mr. Berg applied for a setback variance. When Mr. Berg appeared before the Planning Commission, they made a fording that it is not fence and is just a decorative landscaping feature, and Ayes: 4 Nays: 1 Krebsbach Page No. 11 December 2, 2003 no variance is necessary. If Council concurs, they should make a finding that it is not a fence. Councilmember Duggan moved to find that the proposed amenity constitutes an ornamental structure, not a fence, that it is not subject to setback or height restrictions, and that no variance is necessary. Councilmember Vitelli seconded the motion. Councilmember Krebsbach stated that she voted against the motion because Council the city has made an effort not to have demarcations between neighborhoods. BARR ENGINEERING Council acknowledged a memo from Administrator Danielson AGREEMENT regarding a proposed service contract with Barr Engineering for environmental review assistance in connection with "The Bluffs" EIS. Council also acknowledged a letter from Mr. Timothy Bohlman, Senior Project Manager with Minnstar Builders, approving the city's request for an extension of the public EIS scoping meeting deadline to January 6 at 7:30 p.m. y Administrator Danielson stated that during the EAW preparation, the city hired Barr to assist the staff in the process. Barr is totally familiar with the project and the environmental review process as it exits today. On November 24, Council made a finding that there is the potential for environmental effects and ordered an EIS. The first phase of that process is the scoping process, which requires a public meeting on January 6 to identify and direct the preparation of the EIS. The city staff is not familiar with preparation of an EIS and would very much desire help from a consultant. Because Barr is familiar with the process and because there is such a short time frame before a formal scope must be adopted, staff feels it would be best to retain Barr. He stated that he asked Barr Engineering to prepare a proposal for services, which they did. The cost of the scoping process assistance services quoted by Barr is a "not -to- exceed" amount of $7,250. He asked for Council's consideration of retaining Barr Engineering to assist with the process. Administrator Danielson stated that Mr. Tim Bohlman, from Minnstar Builders, is present and has expressed concern about the amount of money Barr has proposed their services would cost. He stated that he is not sure whether the city should do any study to see if a different consultant can be retained. He stated that Barr Engineering is very experienced and the EQB is familiar with their work. Page No. 12 December 2, 2003 City Attorney Schleck informed Council that he has researched the environmental rules and statutes with respect to EIS costs. He stated that MS 1160 specifically provides that the proposer shall be responsible for reasonable costs in the preparation of an EIS. That statement is further clarified in Minnesota Rules 4410.2100, which states that the RGU shall be responsible for expediting the selection of consultants for the preparation of an EIS. The EQB staff indicted to him that there is a clear mandate in the statute and rules that the city is responsible for selecting the consultant. The statute and rules also speak to what are recoverable costs for preparing and distributing an EIS, including staff time and benefits, the cost of consultants, costs for collection of data, indirect costs, etc. The rules also speak to what are not recoverable costs, such as the cost of analyzing information before the need for an EIS, any costs incurred by private parties who are making comments are not recoverable, nor are the costs of any equipment purchased by the city. Rule 4400.2100, Subd. 3 states that the costs for any other items during the scoping for the EIS are to be assessed to the project proposer. Mayor Huber stated that it seems clear under the Rules that the developer has to pay for the consultant costs in addition to staff time. Administrator Danielson should instruct the city's staff to record the time they spend on the EIS process. It is recommended that a court recorder take the minutes of the public scoping meeting on January 6 so that Council is certain to have an accurate verbatim transcript of what is said that evening. Attorney Schleck stated that if there are any disputes with respect to what is a reasonable cost or not, those could be referred to the EQB. He stated that Rule 4410.6410 states that the RGU shall not proceed with the scoping process until its anticipated costs are paid. Councilmember Vitelli stated that he feels very strongly that the residents should not pay any portion of the cost of the EIS process for the applicant. He asked what happens if the applicant is unwilling to pay the city's costs. Attorney Schleck responded that he spoke to EQB staff and was told that if there is no payment ahead of time for the costs, the project goes into environmental limbo. The city approval process is stayed and the review process is stayed until there is an agreement between the RGU and the developer. If a resolution cannot be made between the two parties, the city can discontinue the EIS process. Page No. 13 December 2, 2003 Councilmember Vitelli stated that he did not realize staff costs and 1 overhead are recoverable. He asked if staff is prepared to give the applicant an estimate of the costs over and above the $7,250 project cost for Barr, and if staff can estimate the city costs this evening so that Council can get an agreement from the applicant. Administrator Danielson responded that he cannot give Council an accurate estimate this evening and would like the time to meet with the city attorney to develop an estimate. Attorney Schleck stated that he can speak with the Finance Director also to determine how to calculate normal overhead, etc. Councilmember Duggan stated that all of the staff members who will be working on this matter should be asked to log their hours. He stated that he suspect the city will spend as much staff time as Barr. When all of those costs are put together, it could be substantial, including attorney fees and city staff time. Attorney Schleck informed Council that he spoke to Greg Donney at the EQB, and the city's decision on the EIS will be published in the December 8 EQB Monitor. There are some time constraints with respect to the scooping decision. The final scoping decision must be made within 45 days from publication unless the parties cannot come to agreement over costs. The 45 day period began yesterday. The city does have some time to work with the proposer even up to the next Council meeting. Administrator Danielson stated that he should be able to come up with an estimate for the proposer by tomorrow. Mayor Huber informed Mr. Bohlman that the city will make him aware of the costs as they come up and will make sure that Barr works as diligently as they can. Council does not know what the scoping document will look like, and while Council understands Minnstar's situation, the city has no experience with an EIS. Mr. Bohhnan stated that this item on Council's agenda can be characterized as a vocabulary lesson. Tonight's word is reasonable. What is reasonable to one person may not be reasonable to another. One example of that is that he thought it was perfectly reasonable to spend thousands of dollars on a new truck for his work and his wife did not. When they built their new home, his wife thought it reasonable to spend $9,000 on a front door system and he did not. There is a clause in the back of every contract that talks about Page No. 14 December 2, 2003 defaults and remedies on performance. Reasonable is a subjective word. When the EQB stated that the proposer must reimburse the city for reasonable costs, what does reasonable mean? All he can say in response to staff is that he did not think it is the intent of the Rules or Statutes that he is forced to hand his checkbook over to the city, and what ever the city spends is find. The courts and legislature in the last year or so have come out with several different rulings on that particular point - when the city has the police power that can keep holding the developer at gunpoint and if the developer did not agree to do what the city wants, the project would be denied. There is a provision that if the city and applicant do not agree up front on what is reasonable, that money can be put into escrow and at some point an impartial party gets to decide what is and is not unreasonable and the escrow gets divvied out. That might be a reasonable compromise if the parties cannot agree up front. If the city and Minnstar cannot agree in advance how this is going to be done and what the costs are going to be and who is going to pay for what, he offers the third party option as a way to keep the process going. Attorney Schleck reviewed Rule 4410.6410 Subd. 1 and stated that it does not say that money can be paid into escrow. Mr. Bohiman stated that he has been hearing that the city wants a check tomorrow to cover the city's estimate and be prepared to submit more if needed. Regarding timing of the payment, he stated that he did not hear anything that said to submit a huge deposit up front. His company prides itself on paying people when they presented with reasonable costs. If Minnstar and the city can work through this together in a reasonable fashion, people will be paid. He stated that he takes affront to having to pay up front. Attorney Schleck responded that the Rules state that the proposer shall pay the RGU for the full cost estimate the RGU believes is necessary for the scoping of the EIS and that the RGU shall not proceed with the scoping process until the estimate is paid. The scooping cannot be done until payment is made. Councilmember Vitelli stated that the language is very clear that the city cannot start the work until Minnstar issues a check to the city for the estimated costs. Mr. Bohhnan responded that makes it that much more important that the city comes up with an estimated cost for the scoping process that makes sense to all parties. He does not want to submit money for Page No. 15 December 2, 2003 what Minnstar does not think is a reasonable cost. Necessity should 1 be considered — hard costs for the staff and mailing and publication, etc. Other cities have done EIS's before, and between the city staff, city attorney and Minnstar representatives have the capability to put together a to do list without hiring a $7,250 consultant firm to do that. Mayor Huber stated that there is no way he will support not retaining Barr. Councilmember Duggan asked Mr. Bohlman if his firm has had any experience dealing with an EIS. Mr. Bohlman responded that he has not been through an EIS process before and does not know about the company. Councilmember Duggan asked if Minnstar has the resources to find out from others who have done a scoping process to get information. Mayor Huber stated that this is not a negotiation process. Council has been very accommodating. Council made an effort at the November 24 meeting to go over Barr's costs and shared with Minnstar all of the costs the city thinks they should anticipate. What concerns him is that $7,250 is peanuts compared to what the full EIS is going to cost. That cost could go well into six figures. Council is trying to explain to Mr. Bohhnan what Council thinks it is going to cost Minnstar sot that Minnstar is prepared, but this is not a negotiation session. Mr. Bohlman stated that he does not want anyone to walk away thinking this is about $7,250. Minnstar is already well into six figures in this process. It is all about being reasonable. He stated that he appreciates the meetings the city has had with Minnstar and for the city sharing information with him. It is not about him — it is about trying to make the rest of this process a cooperative and reasonable one. He stated that he has scheduled a meeting for later this month and has invited everyone who responded on the EAW to come to the meeting and give him their ideas. He would rather do that himself instead of paying Barr to do it. Mayor Huber stated that Collin Brownlow, from Barr, has suggested making a big presentation on January 6 and Council does not think that is necessary. Mr. Brownlow is trying to be open with Minnstar on what he thinks it will cost. Council will keep its eyes on costs as much as possible, but if people need to be brought in for expert information, Council will have to do that. Council cannot simply say Page No. 16 December 2, 2003 it does not understand something and be concerned about finding the cheapest resource person. (� Attorney Schleck summarized the Rules, saying the city comes up with an estimate and gives that estimate to the proposer and he is supposed to submit that money to the city. If it costs less, he gets a refund, and if more is spent, he pays more. If there is a dispute over costs, the dispute can be taken to the EQB. Reasonableness is a good point, and staff tried to be reasonable in managing Barr's costs during the EAW process. He agreed that it is not necessary for Barr to make a big presentation at the meeting. He stated that the city is trying to keep costs down and is trying to prepare estimates in the best way it can. Mr. Bohiman stated that as he stated in his letter regarding the date extension, it is Minnstar's intent to work with the city and all other interested parties in a reasonable manner to come up with a project that works for everyone. Minnstar is trying to maintain a reasonable amount of cooperation for the rest of the project, including keeping costs in line with what is reasonable. He stated that Minnstar wants to make sure that someone is not trying to get run the costs up so high as to scare the development away. l� Mayor Huber responded that is not Council's intent. Councilmember Vitelli asked what the estimated size of the project is, the cost to build the townhouses, etc. He stated that he thought it was 430 million. If Minnstar expects a net of 5 %, they are looking at a potential $1.5 million profit. For Minnstar to quibble over whether it wants to go ahead with $7,250 in Barr fees does not impress him. There is an opportunity for Minnstar and others associated to profit by over a million dollars on this project, and he would get this moving and not quibble over Barr's fees. Mr. Bohlman stated that he concedes that this discussion is not about $7,000. The discussion is to set the ground rules to be reasonable and cooperate to keep the costs down. Councilmember Vitelli responded that Council and the city staff are being very open. Council takes a lot of pride in the city staff because they keep budgets in line and that staff is going to be extremely fair. Councilmember Schneeman stated that Barr Engineering is a reputable engineering firm and she does not think they would risk t. Page No. 17 December 2, 2003 their respect by trying to run up the prices. She further stated that she has never known Mendota Heights to over charge anyone. Councilmember Krebsbach stated that she thinks the scoping document is the most important part of this and she wants it done right. She stated that Mr. Bohlman must have an idea of what he thinks would be reasonable in costs. Mr. Bohlman responded that his job was to have a dialogue about how the process should be done and work in a reasonable fashion. The things he read in the scope of services to be provided by Barr can certainly be done by city staff and Minnstar, but if the city Council thinks it can justify Barr doing it, Minnstar will have to deal with it. Councilmember Duggan moved to authorize the Mayor to execute the Agreement for Environmental Review Assistance "The Bluffs of Mendota Heights" EIS between the city and Barr Engineering. Councilmember Schneeman seconded the motion. Councilmember Duggan stated that as he looks at the Barr charges and fees, he is impressed with the fact they are as low as they are. Barr is one of the top engineering firms in Minnesota year after year and they do things right. He stated that he has to believe that someone at Minnstar did not anticipate that an EIS would be ordered and made estimates on the costs. He stated that Council must depend on staff and Barr to determine that for the city. Councilmember Vitelli stated that if $7,000 is not the issue, he can only find that the issue is trust or qualifications of staff. If money is not the issue, what is the issue? Mr. Bohiman responded that whether or not to hire a consultant is part of the issue. The $7,000 that was quoted is not the issue. He agreed with Councilmember Vitelli that Minnstar spills $7,000 the first day of working on a site. He just wanted to make sure this is not the first of many $7,000's. Vote on Motion: Ayes: 5 Nays: 0 COMMISSION Council acknowledged a memo from Administrator Danielson APPOINTMENTS regarding advisory commission appointments that will expire on January 31. Page No. 18 December 2, 2003 Mayor Huber stated that all of the commissioners whose terms are expiring have indicated that they desire to be reappointed. He asked what process Council wants to go through. Councilmember Krebsbach stated that she would like to know the attendance records because there are many people who would like to serve on the commissions. Councilmember Vitelli stated that it is encouraging that all of the commissioners have indicated a desire to be reappointed. He supported Councilmember Krebsbach's recommendation about looking at attendance, and if there is an attendance problem, talking with a commissioner about it. Short of that, he supported reappointing all of the commissioners. Councilmember Krebsbach stated that she would be concerned about anyone missing a third of the meetings. All of Council agreed. Councilmember Duggan stated that Council should at least honor the interest of the people who have submitted letters of interest in appointment to commissions. Mayor Huber asked Administrator Danielson to prepare a summary of attendance records for the last three years for commissioners whose terms are expiring. He stated that he appreciates that people have submitted letters of interest, but if Council does not have a concern over attendance and is thinking about reappointing all of the commissioners, Council could be too kind in talking to the other applicants. He stated that he thinks the city should send a letter of appreciation to the people who have submitted letters of interest. Councilmember Duggan stated that he was not talking about the people who submitted letters. If others come forward expressing an interest — if a commissioner decides to move or resigns — he would like to have people in line. Councilmember Vitelli stated that if there is what looks like an attendance issue, Administrator Danielson should call the person and get a background on why. RUNWAY CONTRACT Council acknowledged a memo from Administrator Danielson regarding the Third Parallel Runway Contract with MAC. Councilmember Krebsbach stated that the most important item is that the agreement runs to December 31, 2050 at a minimum, and to Page No. 19 December 2, 2003 a minimum of December 31,2036 if the legislature finds that there is no feasible alternative to construction of the third parallel runway. Attorney Schleck stated that the one question that was asked of him was whether the document should be recorded against a piece of property. That is impractical, because it would have to be recorded against the airport property. Also, it is difficult for any party to get a restrictive covenant against a public properly such as an airport. Councilmember Krebsbach stated that she respects that ARC commissioner Roszak is an attorney, but he is an important member of the commission and thinks it should the issue of recording the document should be reviewed by legal counsel. Councilmember Schneeman stated that this is the same document that was approved two years ago and former Mayor Mertensotto negotiated it. Councilmember Krebsbach stated that she would say that if Commissioner Roszak recommends filing against a piece of property, the city should check with Minneapolis to see what they have done. Staff was directed to do further research about recording the agreement. COUNCIL COMMENTS Mayor Huber informed staff that he received a call from Attorney Rollin Crawford on behalf of Mr. Fink, who may be approaching staff and the city planner at a planner's meeting. He told Mr. Crawford that he is concerned that if this heads down a legal path, Mr. Crawford's comments should be made to Attorney Schleck. He told Mr. Crawford that perhaps he should call the city attorney and Administrator Danielson to discuss how he sees the matter going forward. Administrator Danielson announced that the assistant manager of the St. Thomas Academy hockey arena has informed him that St. Thomas is conducting a reception open house at the arena on Saturday, December 6 at 7:00 p.m. ADJOURN There being no further business to come before Council, Councilmember Vitelli moved that the meeting be adjourned. Page No. 20 December 2, 2003 Councilmember Duggan seconded the motion. Ayes: 5 Nays: 0 TIME OF ADJOURNMENT: 10:05 p.m. Kathleen M. Swanson City Clerk ATTESD.-) Jo o ( uj' Vor L