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HomeMy WebLinkAbout09-13-2021 City Council Minutes MINUTES OF THE ORONO CITY COUNCIL MEETING Monday,September 13,2021 6:00 o'clock p.m. ROLL CALL The Orono City Council met on the above-mentioned date with the following members present: Mayor Dennis Walsh,City Council Members Matt Johnson,Aaron Printup,Richard Crosby III, and Victoria Seals. Representing Staff were City Attorney Soren Mattick, City Administrator/Engineer Adam Edwards,and Community Development Director Jeremy Barnhart. Mayor Walsh called the meeting to order at 6:00 p.m., followed by the Pledge of Allegiance. APPROVAL OF AGENDA CONSENT AGENDA Crosby would like to add Item 16 to the Consent Agenda and removing Item 12 from the Consent Agenda. Johnson has questions on Item 16. The City Council decided to keep it off the Consent Agenda. 1. CITY COUNCIL MEETING MINUTES OF AUGUST 23,2021 2. COUNCIL WORK SESSION MINUTES OF AUGUST 23,2021 3. CLAIMS/BILLS 4. APPROVAL OF RENTAL LICENSES 5. LONG LAKE FIRE COMMAND VEHICLE PURCHASE 6. PUBLIC WORKS FACILITY CIVIL ENGINEERING AND SURVEY PROPOSAL 7. WALTERS PORT WATER MAIN REPLACEMENT PROJECT(21-022)FINAL PAY REQUEST AND PROJECT CLOSEOUT 8. 20-014 SEWER REHABILITATION—FINAL PAY REQUEST AND PROJECT CLOSEOUT 9. APPOINTMENT OF 2021 SEASONAL EMPLOYEES 10. AUTHORIZATION TO ACCEPT WILLIAM CARSTENS RESIGNATION 11. LA21-000048—COURTNEY PAULSEN, 1090 WILDHURST TRAIL,VARIANCES— RESOLUTION NO.7214 12. LA21-000050—ALYSSA DWYER& ERIC BIERMANN,2915 CASCO POINT ROAD, VARIANCES—RESOLUTION NO.7215 This item was removed from the Consent Agenda. 13. LA21-000054—SHARRATT DESIGN& CO-MICHAEL SHARRAT,2695 SHADYWOOD ROAD,VARIANCE—RESOLUTION NO.7216 Page 1 of 8 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday,September 13,2021 6:00 o'clock p.m. CONSENT AGENDA—Continued Crosby moved,Printup seconded, to approve the Consent Agenda as amended. VOTE: Ayes 5, Nays 0. PUBLIC COMMENTS Pat Steiner,4461 Bayside Road,read a statement around mountain biking and permission in Lowry Woods and Bederwood Park: "I would like to ensure that the City Council performs an environmental impact study(EIS) on the impact of mountain biking to the trails and off-trail areas of these parks before making any decision. There are many EIS's that have been done but universities user permit applications cite research that suggests that mountain biking causes similar environmental impact to the soil, vegetation, invasive pests, and those sorts of things, as does hiking. Although this is an important piece of information, I believe a more important point is that most of the ecological affect is generated in the first few uses (University of Calgary and multiple sources) and off-trail use can quickly lead to the establishment of informal, visitor- created trails that unnecessarily remove vegetation-cover and spread non-native plants." Mayor Walsh asked Mr. Steiner if he has ever been to Bederwood Park. Mr. Steiner replied in the negative but stated he has been to Lowry Woods. Mayor Walsh noted there is nothing going on at Bederwood and if Mr. Steiner has not been there it is hard to make statements and questions. Mr. Steiner stated he would restrict his comments to Lowry Woods. Mayor Walsh replied they are not doing anything at Lowry Woods. Mr. Steiner said his comments would be for future reference. Mayor Walsh asked if Mr. Steiner is part of the group taking pictures and video-taping children in the woods? Mr. Steiner replied in the negative and has no knowledge of that. He said at least for Lowry Woods, it is the off-trail piece that causes significant damage, including soil erosion, damaging of native plants, and potential spread of invasive species.He has some citations to justify those remarks and he is happy to leave it with the Council. He said in the last 12 months he has personally witnessed many incidences (more than 5)of off-road trail use in Lowry Woods;this was exemplified by the number of off-road tire tracks left after snowfalls the previous year. It is his contention that signs will not prevent this off-trail behavior. In Lowry Woods bikes were prohibited yet there were many bikes and many off-road uses.He personally witnessed the soil erosion at his previous home after three years which made the trails unusable. Mayor Walsh asked where Mr. Steiner lived previously. Page 2 of 8 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday, September 13,2021 6:00 o'clock p.m. PUBLIC COMMENTS—Continued Mr. Steiner replied he lived in Switzerland. Mayor Walsh noted people are riding bikes and doing bad things in Switzerland? Mr. Steiner stated they were riding off-trail and as they began riding they stuck to the trail, and he can only speculate,they look for more adventurous routes and it continued to degrade. Mayor Walsh said it seems like a lot of speculation. He clarified Mr. Steiner has been to Lowry Woods five times and seen tire tracks five times? Mr. Steiner quoted an EIS that was done saying that off-trail use can quickly lead to the establishment of informal visitor-created trails that unnecessarily remove vegetation cover and spread non-native plants. Such routes often degrade rapidly and are abandoned in favor of adjacent new routes which unnecessarily magnify the extent and severity of trampling damage. Mayor Walsh asked what trails the document is speaking about or whether it is a generalized document. Mr. Steiner clarified he has been in Lowry Woods daily for years and has witnessed multiple uses in the last year, and five is probably an understatement. Mayor Walsh thanked Mr. Steiner and appreciates his time. PARKS AND GOLF COURSE REPORT 14. Golf Course Event Fee Schedule Adjustment Request Edwards noted a request from the Golf Course Event Committee to have a temporary reduction in the rates and green fees this Friday. They are looking for half-price rates on Friday afternoon to coincide with the event they are holding. He clarified greens fees are established by the fee schedule and is not something Staff can approve. Crosby moved,Johnson seconded,to approve the golf course event fee schedule adjustment. VOTE: Ayes 5,Nays 0. 15. Casco Point Ice Rink Improvements and Partnership Opportunity Edwards said the City was approached earlier in the year regarding a partnership between the Orono Youth Hockey Association to use existing ice rinks for youth skaters.At the Park Commission they looked at two things: 1)what opportunities are there in the near term with existing rinks and 2)exploring the idea of looking at parks and in the next five years doing a Master Plan to incorporate longer-range planning. The Park Commission said yes to both. Tonight,they are looking at whether the City is interested in partnering this winter. The City would invest in lighting the rink and install the lights at the rink with a rough estimate of around$5,000. The Youth Hockey Association would bring in temporary boards for around half of the existing Casco Point rink. The third part would include a partnership on ice Page 3 of 8 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday,September 13,2021 6:00 o'clock p.m. 15. Casco Point Ice Rink Improvements and Partnership Opportunity—Continued maintenance,the City would flood the rink and remove snow and the Association would come in with their volunteers to do the detailing of the ice.The Park Commission voted 5-0 to recommend the partnership. Seals thinks it is great as the park is under-utilized and this opens the door for more people to use it. She questioned the lights and whether the neighbors are okay with that. Edwards said the Park is surrounded on three sides by trees. Crosby does not think the lights will be a problem in that area. Edwards said to mitigate that they will have lower poles and as they bid it out they will have an electronic timer so the lights cannot be turned on after a certain time. He noted they also spoke about a temporary warming house at some point in the future. Johnson asked if there would be signage telling people the times that the Association will be using the rink. Seals suggested keeping the City calendar updated on the website,as well. Edwards noted there would always be open rink as the Association will only use half of the rink for hockey. Crosby moved, Seals seconded,to approve the Casco Point Ice Rink improvements and partnership VOTE: Ayes 5,Nays 0. FINANCE DIRECTOR'S REPORT Edwards shared new homes are down a bit,and overall permit numbers are up.Year-to-date numbers are higher than the last three years overall. COMMUNITY DEVELOPMENT REPORT 12. LA21-000050—ALYSSA DWYER& ERIC BIERMANN,2915 CASCO POINT ROAD, VARIANCES—RESOLUTION NO.7215 Mayor Walsh noted this property has a lot of things in front of the 0-75 setback and are building a bigger house. When giving variances,the City Council usually likes to see some reduction and to make some progress on the 0-75. Curtis clarified they are not modifying the 0-75 area.In 2014 they received variances to reconstruct the retaining walls that were failing in that area. The existing home is being removed and is shown in grey on the survey,the Average Lakeshore Setback(ALS)cuts through the proposed home, and the neighbors to the south included a supportive memo as they intend to rebuild their home,as well. She said the proposed home is not going closer to the lake than the existing home and the hardcover is conforming as is the structural coverage. Page 4 of 8 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday,September 13,2021 6:00 o'clock p.m. 12. LA21-000050—ALYSSA DWYER&ERIC BIERMANN,2915 CASCO POINT ROAD, VARIANCES—RESOLUTION NO.7215—Continued Mayor Walsh said usually they want to make some progress on the 0-75 rather than just meet it. He is looking to reduce numbers in the 0-75 if they are rebuilding the house. The City Council discussed and clarified the location of the ALS and 0-75 on screen. Mayor Walsh noted he was confused by the 0-75 and the ALS line and is now fine with the application. Printup moved,Seals seconded,to approve LA21-000050—2915 Casco Point Road,Variances— Resolution No.7215.VOTE: Ayes 5,Nays 0. 16. LA21-000052—PETIT DESIGN-BARRY PETIT,3355 CRYSTAL BAY ROAD, VARIANCE—RESOLUTION NO.7217 Staff presented a summary packet of information. Curtis stated the applicant is requesting side yard setback,hardcover, and 75' lakeshore setback variances to allow for an addition to the existing home. The addition will include a 2 car garage with living space on the second floor.Also proposed is a new front walk and driveway within the 0-75 and the applicant has designed the addition to follow the ALS;the lot is substandard to area width and is currently over in hardcover and building encroachments within the 0- 75. The Planning Commission held a public hearing and recommended approval 7-0. The Council discussed the trail, encroachments,and comments from the Hennepin County Regional Rail Authority. Printup moved,Seals seconded,to approve LA21-000052-3355 Crystal Bay Road,Variance— Resolution No.7217,noting the City Council will not give approval for anything that does not belong to the City or belongs to the Hennepin County Regional Rail Authority.Ayes 5,Nays 0. CITY ATTORNEY REPORT CITY ADMINISTRATOR/ENGINEER REPORT 17. 2021 ROAD MAINTENANCE PROJECT—FEE ADJUSTMENT REQUEST—BOLTON AND MENK Edwards noted Bolton and Menk has requested a fee adjustment. At the time of awarding the project it was awarded to Ohman Construction and at the same time Bolton and Menk provided the City with a construction oversight fee proposal which was a not-to-exceed proposal of$99,000. Mr. Dave Martini is present tonight to ask for a fee adjustment of$25,000. Dave Martini noted the Company provides a scope of services to the City and ultimately they approve a not-to-exceed fee for the work. This typically happens in two stages: for a project like this where there is design and construction associated,the City approves a fee for the design through bidding portion and a separate fee at the point of construction.From Bolton and Menk's standpoint,the design piece is completely in their control.From the construction side, it can be a bit more challenging to estimate fees as many things are out of their control such as how the contractor approaches the job,the way they stage it, whether they will be out there performing the work, and access concerns. With this project,they are going Page 5 of 8 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday,September 13,2021 6:00 o'clock p.m. 17. 2021 ROAD MAINTENANCE PROJECT—FEE ADJUSTMENT REQUEST—BOLTON AND MENK—Continued on the 18th week of construction which is more than the Company had estimated it would take. The work has been done in three separate phases and the way it has played out stretched it through the entire summer.At the end of August,they had reached their budget for the project.When the City approves not- to-exceed fees it is so both parties understand what they are getting into with the idea that at a point like this they can have a discussion about the way the project is playing out.Mr.Martini noted they are asking the City Council to consider extending the engineering fees on this to get them through mid-October to complete the job. Mayor Walsh asked how many roads were in the project this year. Mr. Martini replied there were a lot spread out. Mayor Walsh noted the Company knew there were a lot of roads and that it was spread out;the City looks to the Company to handle their own knowledge of what they are doing.He asked how does it become the City's burden to now"unburden"Bolton and Menk on something that they did not know would get drawn out to October 15t1? Mr. Martini said they are trying to make their best good-faith effort based on what they know about the project and how it is going to go. They also look to give the contractor the biggest window they can for construction because they get the best bid prices when they do that. However it is also done with the assumption that there will be some overlap and efficiencies in the way they approach it. To Mayor Walsh's point,did the City do anything to cause it to play out this way?No.However,he would also suggest Bolton and Menk has not done anything to cause the way it has played out, either. Essentially they are asking to be paid for the services they are providing to the City. In this case they are providing more services than they initially estimated. Mayor Walsh noted the City does not know what goes into their estimates so that is hearsay in general. In all the years he has been here,he has never had Bolton and Menk come and say"the project went a lot easier than we thought...I want to give you back$25,000." Mr. Martini said because the City approves it, it is a not-to-exceed amount based on an hourly amount. If the project went better than expected and estimated they would underrun the budget for the project,they would be done,and they would not be billing the City. There are many times when they get to the not-to- exceed,they do the work they need to do to get to the end and those costs go away.They show up on the invoices to show they have exceeded and there have been times where they have knowingly put a lot of their hours and staff time into those projects and not billed for them to be a good partner. He noted on one hand Mayor Walsh is right and there are times such as Walters Port Road in looking at the budget versus the actual engineering time that the City was billed and paid—there is significant difference to the credit of the City as to the services that were provided versus the fee that was approved. Mayor Walsh said does that mean Bolton and Menk is overbidding the City? Mr.Martini replied for every project they make a good-faith effort to try to get that fee to match the services they believe are being asked of them. Page 6 of 8 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday,September 13,2021 6:00 o'clock p.m. 17. 2021 ROAD MAINTENANCE PROJECT—FEE ADJUSTMENT REQUEST—BOLTON AND MENK—Continued Mayor Walsh said he will be tough on anyone who comes and tells him this is what they bid and now they need more money. He noted not long ago they were bidding engineering work for underneath the rail line and they had to go out and get a second thought.At that point,Bolton and Menk came back and essentially matched that number so the City gave it to them. Mayor Walsh would not be in favor of giving the $25,000;there might be a number there but he thinks everyone must take responsibility for some of that.He is willing to have the City take some of that if the contractors spread it out but he does not know what that number is. Johnson asked what prevents Bolton and Menk from estimating the not-to-exceed to be high.He asked if they are in competition when they give these numbers. Mr. Martini replied they are not in competition and it is based upon the hours they estimate based on similar projects,a back-and-forth with City Staff on the services they will provide,and the Company understanding the scope of the work. He understands what the Mayor is saying and thinks they have done a pretty good job of estimating those fees over the year. Crosby asked what the delays were in the project this year. Mr. Martini replied it is not necessarily the delays but the sequencing that the contractor planned as it was broken up into phases. Mayor Walsh thinks they have had a good partnership,Bolton and Menk has done great, but he thinks they need to talk through this. Johnson stated it is a not-to-exceed number for a reason and if they cannot rely on those then Bolton and Menk is not fulfilling its contract.He noted they do some work together,there is value in the relationship, but at the same time they made a bad estimate and now they have to eat it. He said that is how construction works. Mr.Martini noted they are not construction but professional services. If the contractor put in more pipe for the City,they would pay him for more pipe. He said it has always been more important to maintain a long-term relationship with the City than to get caught up in this.Mr. Martini is asking because he believes they provide the service and it would be fair to be compensated for that. Mayor Walsh pointed out the City's budgets rely on those numbers,also. Seals agrees with Mayor Walsh a bit, as sometimes they have to come to a number and eat the costs. She said they should come asking the City to help them out,but there is not guarantee they will get it all back. Printup does not think they have ever had a conversation like this. Mayor Walsh noted Staff has authority to approve up to$5,000 and this is a bigger number. Edwards clarified he would never approve even a dollar over what the not-to-exceed number is.He does have some discretion if they change the scope such as thinking they would need four pieces of pipe but Page 7 of 8 MINUTES OF THE ORONO CITY COUNCIL MEETING Monday,September 13,2021 6:00 o'clock p.m. 17. 2021 ROAD MAINTENANCE PROJECT—FEE ADJUSTMENT REQUEST—BOLTON AND MENK—Continued instead they add a fifth. Those kinds of things with a minor change in scope, Staff-level can approve. Edwards said in fairness to Bolton and Menk this project has been a bit unique in that they awarded to a decent construction outfit but they are smaller than some of their competitors. Therefore,their ability to overlap is not as great as some of the bigger operations out there. Mr.Martini reiterated it is more important to him to maintain a long-term relationship than to dig in on this.He thought it was at least a reasonable discussion to have. Mayor Walsh said perhaps they could have a work session to discuss the item. Johnson said a not-to-exceed is a not-to-exceed. It is nothing against Bolton and Menk. Johnson moved,Crosby seconded,to deny the Fee Adjustment Request.VOTE: Ayes 5,Nays 0. MAYOR/COUNCIL REPORT ADJOURNMENT Mayor Walsh moved,Crosby seconded to close the meeting at 7:06 p.m. and noted the City Council would move into Closed Session.VOTE: Ayes 5,Nays 0. CLOSED MEETING: ATTORNEY- CLIENT PRIVILEGED DISCUSSION Pursuant to Minnesota Statute Section 13D.05, subdivision 3(b), the Council will close the meeting for a confidential discussion of strategy and settlement negotiation status in the following matters: •Barbara E. Burwell in her capacity as Trustee of the Barbara E. Burwell Revocable Trust, and Barbara E. Burwell Revocable Trust, Plaints, v. City of Orono, Mark E. Jacobs in his capacity as Trustee of the Irwin L.Jacobs 2018 Revocable Trust, Trisha Blake in her capacity as Trustee of the Irwin L.Jacobs 2018 Revocable Trust, and Irwin L.Jacobs 2018 Revocable Trust, Defendants, Case No 27-CV-21-4472•Jay Nygard and Kendall Nygard v. City of Orono, Eighth Circuit Court of Appeals,No. 21-2941 •James Hillegass v. City of Orono, Case No 27-CV-21-8317•Jay Nygard v. City of Orono, Minnesota Department of Human Rights, Ref.No. 72546•Kendall Nygard v. City of Orono, Minnesota Department of Human Rights, Ref.No. 72581 •Barbara Schmidt vs. Orono etal, Case No 27-CV-21- 7769•Bonnett v. City of Orono(unfiled) The Council has balanced this decision to close the meeting against the purposes of the open meeting law, and the Council has determined that there is a demonstrated need for absolute confidentiality. The Council will be considering settlement negotiation status and strategy and must do so confidentially. Mayor Walsh moved,Crosby seconded to reopen the meeting at 7:41 p.m.VOTE: Ayes 5,Nays 0. Mayor Walsh moved,Crosby seconded to adjourn the meeting at 7:55 p.m.VOTE: Ayes 5,Nays 0. ATTEST: ar2tYL ° Anna Carlson,City Clerk Dennis Walsh,Mayor Page 8 of 8